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finding that it is insufficient for the ALJ to simply cite to "some objective medical evidence in the record" and conclude that an opinion is "consistent with other evidence in the file" and therefore "persuasive"
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20-CV-0502 (AJN) (KHP)
01-29-2021
HILDA MARGARITA ACOSTA CUEVAS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE ALISON J. NATHAN, UNITED STATES DISTRICT JUDGE
Plaintiff Hilda Margarita Acosta Cuevas (“Plaintiff”), who is represented by counsel, commenced this action against Defendant Commissioner of the Social Security Administration (the “Commissioner”), pursuant to the Social Security Act (the “Act”), 42 U.S.C. 405(g). Plaintiff seeks review of the Commissioner's decision that Plaintiff was not disabled under section 1614(a)(3)(A) of the Act from October 30, 2018, the date her application for Social Security Disability benefits (“SSD”) and Supplemental Security Income benefits (“SSI”) was filed, through the date of the decision.
The parties submitted a Joint Stipulation (“J.S.”), in lieu of cross-motions for judgment on the pleadings (ECF No. 23), pursuant to this Court's Order at ECF No. 9. For the reasons set forth below, this Court respectfully recommends that the Commissioner's motion be DENIED and that Plaintiff's motion be GRANTED.
BACKGROUND
Plaintiff, Ms. Acosta Cuevas, was born in 1982 and was 34 years old on January 1, 2017, the onset date of her alleged disability. (R. 51-52.) Ms. Acosta Cuevas is married and has two children. (R. 637.) She also has a high school education and attended some college in the Dominican Republic, but did not obtain a degree. (R. 44). Ms. Acosta Cuevas's past relevant work was as a home health aide and a shipping order clerk. (R. 54-55.)
I. Procedural History
On October 30, 2018, Plaintiff protectively filed an application for SSD and SSI alleging disability due to mental health and physical impairments, principally depression (or mood and bipolar disorders), Sjogren's syndrome, and fibromyalgia, beginning January 1, 2017. (Administrative Record (“R.”) 62-63, 288-305, ECF No. 15.) The Commissioner initially denied Plaintiff's application on January 11, 2019 (R. 106-115) and, upon reconsideration, again on March 25, 2019. (R.131-42.) Plaintiff then filed a request for a hearing before an Administrative Law Judge (“ALJ”) on April 2, 2019, which was granted. (R. 147-48.) Plaintiff appeared and testified at a hearing held before ALJ Andrea Addison on August 7, 2019. (R. 3961.) Plaintiff had counsel at the hearing. The ALJ denied Plaintiff's application by written decision dated September 6, 2019. (R. 9-32.) Then, on December 17, 2019, the Appeals Council denied Plaintiff's request for review of the ALJ's decision, constituting the Commissioner's final act. (R. 1-8.)
According to the parties: “Bipolar disorder includes Bipolar I disorder, representing the modern understanding of the classic ‘manic depressive disorder' or affective psychosis described in the nineteenth century, differing from the classical description only to the extent neither psychosis nor the lifetime experience of a major depressive episode is a requirement. It also includes Bipolar II disorder, requiring the lifetime experience of at least one episode of major depression and at least one hypomanic episode. Largely because of the amount of time individuals with this condition spend in depression and the instability of mood, bipolar II disorder is typically accompanied by serious impairment in work and social functioning. Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, 2013 (“DSM-5”), p. 123.” (J.S. 5, n.11.)
According to the parties: “Sjogren's syndrome is an autoimmune disease that causes dryness in the nose, throat, and skin, and can affect other parts of the body, including joints, lungs, kidneys, blood vessels, digestive organs, and nerves (https://medlineplus.gov/sjogrenssyndrome.html).” (J.S. 3, n.7.)
According to the parties: “Fibromyalgia is ‘a common nonarticular rheumatic syndrome characterized by myalgia and multiple points of focal muscle tenderness to palpation (trigger points). Muscle pain is typically aggravated by inactivity or exposure to cold. This condition is often associated with general symptoms, such as sleep disturbances, fatigue, stiffness, [headaches], and occasionally [depression].' i, available at http://www.online-medical-dictionary.org/omd.asp?q=fibromyalgia (citing Adams et al., Principles Of Neurology 1494-95 (6th ed.)).” (J.S. 3, n.6)
II. Summary of Relevant Medical Evidence
The Administrative Record reflects that Plaintiff had three main medical sources, consisting of a primary physician, a rheumatologist, and a mental health clinic, N.Y. Psychotherapy and Counseling Center (“NYPCC”). Plaintiff also went to two health clinics, BronxCare Health System (“BronxCare) and MLK Health Center (“MLK Center”) for medical treatment. The record also reveals there were four consulting examiners (“CEs”) in this case, two for Plaintiff's mental health record, and two for her physical health record. These treating and consulting medical sources are summarized below, as reflected in the Administrative Record.
A. Main Treating Medical Sources
Chaula Patel, MD
Chaula Patel, M.D., a board-certified internist, was Plaintiff's primary physician in the Administrative Record. Plaintiff saw Dr. Patel for both mental and physical health reasons. Plaintiff's first visit with Dr. Patel was October 5, 2018 and her last visit was July 22, 2019.
In the visit record from October 5, 2018, Dr. Patel indicated that Plaintiff's reasons for her initial appointment were due to her history of depression and recent hospitalization due to gastrointestinal issues. (R. 774.) Regarding Plaintiff's mental health, Dr. Patel asked Plaintiff questions from a questionnaire to which Plaintiff responded she had general feelings of depression and some suicidal thoughts. (Id.) Dr. Patel concluded Plaintiff had moderate depression and noted a suicide assessment risk should be considered. (Id.) Regarding Plaintiff's physical health, Plaintiff described symptoms of chronic muscle and joint pain, as well as a history of Sjogren's syndrome and related care with a rheumatologist, Dr. Arlene Tieng (discussed below). (Id.) Dr. Patel assessed the following relevant conditions for Plaintiff: sicca syndrome (i.e. Sjogren's syndrome) with organ involvement, depressive episodes, and history of musculoskeletal and connective tissue issues. (R. 775.) Regarding Plaintiff's Sjogren's syndrome, Dr. Patel advised her to continue taking the two medications she had already been prescribed. (R. 777.) Regarding Plaintiff's depression, Dr. Patel referred her to a psychiatrist and psychologist, which led to Plaintiff going to NYPCC, as discussed below.
Plaintiff saw Dr. Patel at least seven more times throughout the record. (R. 750-79.) At those visits, Dr. Patel would conduct a review of plaintiff's systems, soliciting Plaintiff's complaints as to, among other things, her myalgia, neurology, and psychology. For the most part, Plaintiff would report feeling depressed and anxious, mostly without suicidal ideation, sometimes appearing fatigued and depressed to Dr. Patel, and other times appearing alert and well oriented. However, there are some records with Dr. Patel indicating that Plaintiff did have suicidal ideations and was doing worse at times, mentally and physically, then others. (See e.g., R. 775, 765.) At various times throughout her time with Plaintiff, Dr. Patel diagnosed Plaintiff with Bipolar disorder, Sjogren's, and major depressive disorder, recurrent, severe with psychotic symptoms. (See 750-79.)
Arlene Tieng, MD
Plaintiff saw rheumatologist Arlene Tieng, MD as her primary medical source for her Sjogren's syndrome and fibromyalgia beginning on or around October 26, 2018, but may have seen her for issues related to her Sjogren's syndrome as far back as November 2014. (R. 556- 57.) Plaintiff saw Dr. Tieng on at least four subsequent visits, with the last visit in the record occurring on April 25, 2019. (R. 583-54, 576-77, 581-82, 738-39.)
This record indicates that Plaintiff was seen by someone going back to at least November 2014 for issues that seem related to both Sjogren's syndrome and fibromyalgia. (See R. 556.) The ALJ never discusses this lengthy history or attempts to reconcile it with more recent medical records, or even determine if Dr. Tieng was the doctor who wrote the notes from visits in 2014 and 2015.
During her visits with Dr. Tieng, Plaintiff would report on her physical symptoms from Sjogren's syndrome and fibromyalgia. These complaints often included symptoms of muscle and joint pain, fatigue, dry mouth, dry eyes, and dry skin. (Id.) Dr. Tieng regularly noted Plaintiff was positive for an antibody evidencing the presence of Sjogren's syndrome. (See e.g., R. 583.) Dr. Tieng also conducted physical examinations of Plaintiff during these meetings. With the exception of the last-in-time record, dated July 22, 2019, Dr. Tieng noted positive fibromyalgia tender points in Plaintiff's knees, but none in her shoulders, elbows, or wrists. Nonetheless, Dr. Tieng maintained a diagnosis of fibromyalgia throughout the entirety of the available medical records.
Additionally, Dr. Tieng began prescribing Plaintiff a nerve-pain medication called Gabapentin starting with Plaintiff's October 26, 208 visit. (R. 557.) At subsequent visits, Dr. Tieng increased the Gabapentin dosage, starting with 300mg on December 14, 2018 (R. 583- 84), and ending with a 600mg prescription which Dr. Tieng refilled for Plaintiff at least once. (R. 582, 577, 738.)
N.Y. Psychotherapy and Counseling Center (Rafaelina Hildago, MSW, Dr. Anthony Sanchez, Dr. James Herivaux) Following Dr. Patel's referral on October 5, 2018, Plaintiff began going to NYPCC for mental health treatment. At NYPCC, Plaintiff received a range of treatment, including, in chronological order, a screening interview, a psychiatric evaluation, regular individual psychotherapy counseling sessions, and psychotropic medication.
During Plaintiff's first month going to NYPCC, on October 12 and 23, 2018, Plaintiff received psychiatric exams, first from MSW Roberta Fernandez (R. 517) and then from Dr. Anthony Sanchez. (R. 541.) At the October 12 visit, MSW Roberta Fernandez MSW filled out a long checklist questionnaire, including a section entitled “Level of Interference with Functioning.” (R. 512.) MSW Fernandez diagnosed her with major depressive disorder, recurrent, with psychological features. (R. 517.) Shortly thereafter, on October 23, Dr. Sanchez conducted a psychiatric functional evaluation of Plaintiff which revealed fair memory, a mildly anxious and depressed mood, a mildly constricted affect, mildly to moderately impaired insight, fair to mildly impaired judgment, fair to mildly impaired impulse control, and average attention span. (R. 542.) Dr. Sanchez listed Plaintiff's primary diagnosis as unspecified mood/bipolar disorder, with other diagnoses of major depressive disorder, recurrent, with psychological features, unspecified bipolar disorder, and unspecified anxiety disorder and prescribed Plaintiff two psychotropic medications to be taken as necessary.
From October 15, 2018 through at least May 10, 2019, Plaintiff had individual therapy sessions with MSW Rafaelina Hildago at NYPCC. The records from these meetings are fairly consistent, indicating that Plaintiff often appeared depressed and fatigued, usually did not have aggressive or suicidal ideations, complained of the difficulties in dealing with her parents, husband, and children in light of her mental impairments, and had trouble sleeping and being fatigued. However, there were occasional visits in which Plaintiff did state she had aggressive or suicidal thoughts and otherwise appeared in a more depressive state.
Finally, Plaintiff saw Dr. James Herivaux on at least two occasions to manage her psychiatric medications. At the first meeting, Dr. Herivaux noted Plaintiff reported feeling very depressed despite the current medications, and increased her Prozac prescription given her depression's persistence. (Id.) At the second meeting, Plaintiff reported that all of her symptoms were “adequately controlled by meds” and denied any side effects. (Id.) Dr. Herivaux made no changes to her medication regime and continued recommending psychotherapy. (Id.)
B. Other Treating Medical Sources
BronxCare Health System
On September 25, 2018, Plaintiff went to the BronxCare to be seen for multiple physical symptoms, including body pain in multiple areas, epigastric pain, vomiting, episodic diarrhea, and dry eyes. (R. 448-49.) A physical examination, conducted by Rabih Nasr, MD, revealed tenderness in the abdomen, but Plaintiff was comfortable with no acute distress. (R. 450.) She did not have any edema in her extremities or any gross motor or sensory abnormalities. (Id.) She had full (5/5) strength in her upper and lower extremities. (Id.) Plaintiff's diagnoses included fibromyalgia, sicca syndrome (Sjogren's), and gastroesophageal reflux disease. (R. 452.)
On October 19, 2018, Zwi Schreiber, MD, saw Plaintiff. (R. 440.) Dr. Schreiber determined Plaintiff had developed thrombocytopenia about 18 months prior due to Sjogren's syndrome. (Id.) Dr. Schreiber noted that Plaintiff felt well, that thrombocytopenia had resolved, and that Plaintiff continued seeing a rheumatologist. (Id.)
Plaintiff also had multiple other records from BronxCare that were not specifically related to her mental or physical alleged impairments. However, in these records, Plaintiff was asked basic screening questions that are relevant to her claims of disability, as discussed below.
MLK Health Center
Plaintiff went to the MLK Center predominantly for gynecological visits. The following visits are typical of her record with the MLK Center. During a September 21, 2018 follow-up visit at MLK Center, Plaintiff reported to a doctor that she had nonspecific joint pain at times, which resolved with Tylenol. (R. 402-05.) Plaintiff reported that she felt well overall and was not having uncontrolled pain at the time. (R. 402, 404.) She also denied that she had been bothered by feeling depressed or down in the past month. (R. 402.)
During a gynecological visit with a different doctor on January 30, 2019, Plaintiff denied that she was in uncontrolled pain. (R. 578, 718.) On examination, Plaintiff was in no distress, was alert and oriented, and responded to verbal commands. (R. 579.) Plaintiff also had sensation, normal strength, and intact deep tendon reflexes. (Id.)
During a gynecological visit on May 29, 2019, at which Plaintiff saw the same doctor as her previous visit, Plaintiff was not in distress, and her neurological findings were unremarkable. (R. 748.)
Jennifer Del Campo, FNP
On May 16, 2019, Jennifer Del Campo, FNP, conducted a one-time evaluation of Plaintiff for pain and swelling in her legs. (R. 780.) Plaintiff reported she had been unable to decrease her symptoms through elevating her legs, physical therapy, or using compression stockings. (Id.) Plaintiff denied joint swelling, painful gait, and claudication. (R. 781.) A physical exam revealed leg edema with diminished hair growth. (Id.) Plaintiff's neurological examination was grossly intact. (Id.) She had full range of motion in her musculoskeletal system. (R. 781.) FNP Del Campo diagnosed peripheral vascular disease with lower extremity pain and recommended continued elevation of the legs and use of stockings and also encouraged Plaintiff to participate in a walking program. (R. 780-81.)
C. Consulting Examiners
L. Blackwell, PhD
On January 3, 2019, L. Blackwell, PhD, a psychologist, reviewed Plaintiff's medical files as a non-examining state agency medical consultant to provide opinions regarding Plaintiff's mental medically determinable impairments (“MDI”) and mental residual functional capacity (“RFC”). (R. 74-78.) Dr. Blackwell opined that Plaintiff had two impairments-primary, non-severe, arthropathies and secondary, severe, depressive, bipolar and related disorders-that he determined were MDIs but did not satisfy the respective Listing's criteria. (R. 74.) Dr. Blackwell indicated there were no other medical opinions from any medical sources. (R. 75-76.)
Dr. Blackwell also completed a mental RFC assessment based on a review of Plaintiff's records. In response to the standard questions, Dr. Blackwell indicated Plaintiff had moderate limitations with respect to her ability to: (1) understand and remember detailed instructions; (2) carry out detailed instructions; (3) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (4) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (5) respond appropriately to changes in the work setting; and, (6) travel to unfamiliar places or use public transportation. (R. 76-78.)
In the narrative section of the mental RFC report, Dr. Blackwell ultimately concluded that while Plaintiff had “severe MDIs with mild to moderate limitations[, s]he retains the capacity to perform the basic mental demands of unskilled work activity.” (R. 78.) In coming to this conclusion, Dr. Blackwell noted Plaintiff's average intellect and attention span, fair recent memory, mildly anxious and depressed mood with a mildly constricted affect, with no delusions or evidence of suicidal or homicidal thoughts. Dr. Blackwell also noted that Plaintiff's insight was mildly to moderately impaired while her judgment was only fair to mildly impaired. Dr. Blackwell does not discuss Plaintiff's ability to be timely or maintain a regular schedule in the narrative section. This report concluded with a determination that Plaintiff was therefore not disabled. (R. 79.)
E. Kamin, PhD
On March 14, 2019, E. Kamin, PhD, also a psychologist, was tasked with conducting a reconsideration of Dr. Blackwell's decision. (R. 88-93.) Dr. Kamin ultimately affirmed Dr. Blackwell's conclusion of Not Disabled based on Plaintiff's MDIs being non-severe and retaining the mental RFC to perform unskilled work. (R. 87.) Dr. Kamin's findings with respect to the Listings and their B and C criteria were identical to Dr. Blackwell. (R. 88-89.) So too were his responses to the questions in the mental RFC section of the report. (R. 90-92.)
In the mental RFC section, however, Dr. Kamin reviewed the records from six different medical visits Plaintiff had to NYPCC. (R. 92-93.) In summarizing the notes he reviewed from those six different visits-all but one of which are notes from psychotherapy sessions- Dr. Kamin focused on the prevalence of suicidal/homicidal thoughts, aggression, irritability, medication(s), depression, and Plaintiff's husband. (Id.) Dr. Kamin then reached the same ultimate conclusion as Dr. Blackwell, noting that with Plaintiff's recent psychotropic medications and psychiatric therapy, Plaintiff has not reported any suicidal/homicidal thoughts or aggressions toward her husband or others. (R. 93.)
S. Putcha, MD
On January 7, 2019, S. Putcha, MD, an orthopedic surgeon, reviewed Plaintiff's medical files as a non-examining state agency medical consultant to provide opinions regarding Plaintiff's claimed physical impairments. (R. 73-74.) Plaintiff alleged physical impairments of fibromyalgia, Sjogren's syndrome, and being prediabetic. (R. 73.) Dr. Putcha provided minimal analysis of the medical record, discussing a few undated lab results and observations in the record, concluding that Plaintiff's previously developed thrombocytopenia had resolved, but listed Sjogren's syndrome under his impressions. Ultimately, Dr. Putcha concluded Plaintiff's physical claims were non-severe and listed no functional limitations. (Id.)
A. Saeed, MD
On March 13, 2019, A. Saeed, MD, a pediatrician, was tasked with reconsidering Dr. Putcha's disability determination. (R. 87-88.) In confirming A. Saeed's conclusion that Plaintiff's physical MDIs were non-severe, she had no functional limitations, and she was not disabled, Dr. Saeed summarized the results for four of Plaintiff's medical visits related to these impairments, concluding that overall they showed Plaintiff had normal and free range of motion with negative review of systems. (R. 88.) The visits Dr. Saeed examined were September 30, 2018 and January 30, 2019 at the MLK Center and January 28 and February 22, 2019 with her rheumatologist, Dr. Tieng. In the two visits to Dr. Tieng, Dr. Saeed noted the positive tender fibromyalgia points in her knees and concluded the physical examinations conducted at the respective visits were overall normal. (R. 88.) As for the two visits to the MLK Center, Dr. Saeed noted the physical examination revealed no musculoskeletal or joint pain, negative review of systems, and overall well-developed and normal results. (Id.) Dr. Saeed then concluded that the findings constituted a non-severe MDI and confirmed the decision of not disabled and not functionally limited. (R. 88.)
The medical record indicates a date of “9/30/2019, ” (R. 88), which is likely a typographic error given that the report was created on March 19, 2019. It seems more likely the intended year was 2018. However, the Court cannot identify a medical record corresponding with the notes in Dr. Saeed's report dated September 30, 2018.
III. The Commissioner's Decision
At step one, ALJ Andrea Addison first determined that Plaintiff met the insured status requirements through March 31, 2017 and that Plaintiff had not engaged in substantial gainful activity since January 1, 2017, the alleged onset date of Plaintiff's disabilities. (R. 17.) At step two, the ALJ then determined that Plaintiff had the following severe impairments: depression, bipolar disorder, and Sjogren's disease, but notably, rejected fibromyalgia and chronic venous insufficiency as severe impairments. (R. 17-18.) Regarding Plaintiff's fibromyalgia records, the ALJ noted that while there are symptoms and a diagnosis of fibromyalgia in Plaintiff's medical records, the record did not contain a tender point examination of Plaintiff outlining the tender points associated with fibromyalgia. (Id.) Regarding the chronic venous insufficiency, the ALJ concluded that the records did not demonstrate the condition lasted the required 12 months. (Id.) At step three, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 18.) Specifically, the ALJ determined that Plaintiff's Sjogren's syndrome conditions did not meet or medically equal the severity of Listings 1.02 or 14.10, primarily because Plaintiff's chronic joint pain did not result in limited motion and there were no associated marked limitations. (R. 18-19.) As for Plaintiff's claimed mental impairments, the ALJ determined the complaints did not meet or medically equal the criteria of Listings 12.04 and 12.06, specifically analyzing the “paragraph B” and “paragraph C criteria” of the Listings-which are identical for both Listings. (R. 19-20.)
After completing step three of the analysis, the ALJ assessed Plaintiff's RFC, concluding that Plaintiff retained the RFC to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can: (1) perform simple, routine work; (2) never work in a production pace environment; (3) have occasional and superficial interaction with co-workers and general public; (4) have occasional interaction with supervisors; (5) occasionally make work related decisions; (6) deal with occasional changes in work setting and routine; and (7) have occasional verbal communication.(R. 20.) The ALJ noted that, while certain complained of conditions did not meet or medically equal a Listing, she did consider those complaints in determining Plaintiff's RFC. (R. 18
(“Nevertheless, the undersigned has accounted for any limitations by limiting the claimant to light level activities.”).) In reviewing the objective medical evidence, the ALJ also noted that while some of Plaintiff's complaints could be expected to cause some of Plaintiff's alleged symptoms, Plaintiff's own statements to her medical providers regarding intensity, persistence, and her own limitations were not consistent with the objective record. (R. 21.) For example, regarding Plaintiff's physical ailments, Plaintiff would often complain of chronic joint pain at visits, but then the medical providers would note the pain resolved with non-prescription medication (i.e. Tylenol). (Id.) Regarding Plaintiff's mental ailments, while Plaintiff did present with symptoms of depression and bipolar disorder, her medical providers never assessed her with anything more than moderate symptoms. The ALJ also highlighted the medical reports in which Plaintiff denied certain symptoms that had been present at other visits, such as aggressive/suicidal thoughts, anxiety, and sleep disturbances. (R. 22.) The ALJ concluded the RFC analysis by analyzing the opinion evidence of the CEs, concluding that the two mental CEs reports supported the ALJ's RFC determination, and that the two physical CEs reports were inconsistent with the record, and that Plaintiff had some physical limitations. (R. 23-24.)
The ALJ next determined that Plaintiff was unable to perform her past relevant work, which was identified by Vocational Expert (“VE”) Kentrell Pittman as home health aide and shipping order clerk. (R. 24-25.) Considering Plaintiff's age, education, work experience, and RFC, and relying on the VE's testimony, the ALJ concluded there are jobs that exist in significant numbers in the national economy Plaintiff can perform, such as mail clerk (non-postal), marker, and router. (R. 25-26.) Thus, the ALJ found that Plaintiff had not been disabled since January 1, 2017 through the date of the ALJ's decision. (R. 26-27.)
DISCUSSION
I. The Applicable Law
A. Judicial Standard of Review of Commissioner's Determination
A court's review of a Social Security disability determination requires two distinct inquiries. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987); Dwyer v. Astrue, 800 F.Supp.2d 542, 546 (S.D.N.Y. 2011). First, the court must determine whether the Commissioner applied the correct legal principles in reaching a decision. See Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019). Second, the court must decide whether the Commissioner's decision is supported by substantial evidence in the record. Id. If the Commissioner's decision is supported by substantial evidence, the ALJ's findings as to any facts are conclusive. 42 U.S.C. 405(g), 1383(c)(3).
An ALJ's failure to apply the correct legal standard constitutes reversible error if that failure might have affected the disposition of the case. See Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). A court reviewing an ALJ's decision cannot affirm that decision if it cannot reasonably ascertain whether the correct legal standards were applied, even if the decision may be supported by substantial evidence. See Andrew G. v. Comm'r of Soc. Sec., No. 3:19-cv- 0942 (ML), 2020 WL 5848776, at *1 (N.D.N.Y. Oct. 1, 2020) (citing Johnson v. Bowen, 817 F.2d 983, 985-86 (2d Cir. 1987)). An ALJ's duty to apply the correct legal standards applies to applicable statutory provisions, regulations, and Social Security Rulings (“SSR”). See, e.g., Kohler, 546 F.3d at 266-67 (regulation); Schaal v. Callahan, 993 F.Supp. 85, 93 (D. Conn. 1997) (SSR). An ALJ also has an affirmative duty to develop the record on behalf of claimants, including those represented by counsel. See Moran v. Astrue, 569 F.3d 108, 112-13 (2d Cir. 2009); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). This duty exists because social security proceedings are “essentially non-adversarial.” Shafer v. Colvin, No. 16-cv-7941 (LAP) (SDA), 2018 WL 4233812, at *7 (S.D.N.Y. Feb. 15, 2018), report and recommendation adopted, No. 16-cv-7941 (LAP) (SDA), 2018 WL 4232914 (S.D.N.Y. Sept. 4, 2018). When an ALJ fails to apply the correct legal standards, a reviewing court may remand the matter to the Commissioner under sentence four of 42 U.S.C. 405(g), especially if deemed necessary to allow the ALJ to develop a full and fair record to explain his or her reasoning. See, e.g., Donnelly v. Colvin, No. 13-cv-7244 (AJN) (RLE), 2015 WL 1499227, at *8 (S.D.N.Y. Mar. 31, 2015).
Sentence four of this statute reads as follows: “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
If the reviewing court is satisfied that the ALJ applied the correct legal standards, then the court must “conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision.” Brault v. Soc. Sec. Admin. Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moran, 569 F.3d at 112). Thus, the court does not determine de novo whether a claimant is disabled. Id. (citing Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)). To be supported by substantial evidence, the ALJ must discuss the “the crucial factors in any determination . . . with sufficient specificity to enable the reviewing court to decide whether the determination is supported by substantial evidence.” Calzada v. Astrue, 753 F.Supp.2d 250, 269 (S.D.N.Y. 2010) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)).
If the decision denying benefits applied the correct legal standards and is based on substantial evidence, the reviewing court must affirm; if not, the court may modify or reverse the decision, with or without remand. 42 U.S.C. § 405(g).
B. Legal Principles Applicable to the Commissioner's Disability Determination
Under the Act, every individual considered to have a “disability” is entitled to benefits. 42 U.S.C. §§ 423(a)(1), 1382. The Act defines “disability” as 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 which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant's impairments must be “of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] 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), 1382c(a)(3)(B).
To determine whether an individual is entitled to receive SSD or SSI disability benefits, the Commissioner is required to conduct a sequential five-step inquiry. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Prior to step five, if the claimant does not meet the criteria for being presumed disabled, the Commissioner next must determine whether the claimant possesses the residual functional capacity (“RFC”) to perform her past work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant bears the burden at the first four steps of the analysis. Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). At the last step, however, the Commissioner has the burden of showing that “there is other gainful work in the national economy which the claimant could perform.” Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998).
A claimant's RFC is “the most [she] can still do despite [her] limitations.” 20 C.F.R. § 404.1545(a); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010); see also SSR. 96-9P (clarifying that a claimant's RFC is his maximum ability to perform full-time work on a regular and continuing basis). The ALJ's assessment of a claimant's RFC must be based on “all relevant medical and other evidence, ” including objective medical evidence, such as x-rays and MRIs, the opinions of treating and consultative physicians, and statements by the claimant and others concerning the claimant's impairments, symptoms, physical limitations, and difficulty performing daily activities. Genier, 606 F.3d at 49 (citing 20 C.F.R. § 404.1545(a)(3)).
When a claimant alleges mental impairments in connection with an application for disability benefits, an ALJ also must assess those limitations pursuant to 20 C.F.R. §§ 404.1520a, 416.920a. These regulations require the application of a “special technique” at the second and third steps of the five-step framework and at each level of administrative review. 20 C.F.R. §§ 404.1520a(a), 416.920a(a). Relevant here, prior to fifth step, the ALJ “rate[s] the degree of functional limitation resulting from the impairment(s)” using four broad functional categories. The ALJ accomplishes this task by comparing medical findings regarding the claimant's impairments and the rating of the degree of functional limitation to the criteria of the appropriate mental disorder listing. 20 C.F.R. §§ 404.1520a(d)(2), 416.920a(d)(2). Where a claimant has a mental impairment that neither meets nor is equivalent in severity to any listing, the claimant's RFC will be assessed, in accordance with 20 C.F.R. §§ 404.1520a(d)(3), 416.920a(d)(3).
While similar to an RFC, this analysis is done before a mental RFC is determined. Only after the step at (d)(2) is finished, and resulted in a determination that the claimant's severe mental impairments do not meet or medically equal a listing, does the ALJ engage in the RFC analysis. See 20 C.F.R. §§ 404.1520a(d)(3), 416.920a(d)(3).
In Burgess v. Astrue, the Second Circuit set forth the factors an ALJ uses in determining whether a claimant's physician(s) is a treating physician(s) entitled to controlling weight in accordance with the so-called “treating physicians rule” per 20 C.F.R. §§ 404.1527(c), 416.927(c). 537 F.3d 117 (2d Cir. 2008). At base, the rule required an ALJ to assign the weight given to the medical opinions of a claimant's medical sources; an ALJ had to give controlling weight to a treating physician if those opinions were “well-supported by medically acceptable clinical and laboratory diagnostic techniques and [are] not inconsistent with the other substantial evidence in [the] case record.' Id. (quoting 20 C.F.R. § 404.1527(d)(2)). But Burgess evaluated the treating physicians rule under the previous regulations controlling claims filed prior to March 27, 2017. For those claims filed on or after March 27, 2017, the new regulations in 20 CFR §§ 404.1520c and 416.920c apply. Given the pace at which SSD and SSI cases tend to proceed, courts in this Circuit only began applying these new regulations in opinions issued within the last year or so, and no such case has reached the Second Circuit. In the Court's review, there appear to be only a handful of opinions at the district level within this Circuit. A survey of these cases, however, show that while the treating physician's rule was modified, the essence of the rule remains the same, and the factors to be considered in weighing the various medical opinions in a given claimant's medical history are substantially similar. See, e.g., Andrew G. v. Comm'r of Soc. Sec., No. 3:19-cv-0942 (ML), 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020); Soto v. Comm'r of Soc. Sec., No. 19-cv-4631 (PKC), 2020 WL 5820566, at *7-8 (E.D.N.Y. Sept. 30, 2020); see also Rivera v. Comm'r of the Soc. Sec. Admin., No. 19CV4630 (LJL) (BCM), 2020 WL 8167136, at *13-14 (S.D.N.Y. Dec. 30, 2020), report and recommendation adopted, 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021); Damien C. v. Comm'r of the Soc. Sec. Admin., No. 2:19-cv-96, 2020 WL 5988183, at *8 (D. Vt. Oct. 9, 2020); Shawn H. v. Comm'r of Soc. Sec., No. 2:19-cv-113, 2020 WL 3969879, at *4 (D. Vt. July 14, 2020); Brian O. v. Comm'r of Soc. Sec., No. 1:19-cv-983 (ATB), 2020 WL 3077009, at *4-5 (N.D.N.Y. June 10, 2020) Jackson L. v. Comm'r of Soc. Sec., No. 5:19-cv-786 (ATB), 2020 WL 3077051, at *7-8 (N.D.N.Y. June 10, 2020); Kami B. v. Saul, No. 5:18-CVcv1497 (DJS), 2020 WL 247279, at *5-6 (N.D.N.Y. Jan. 16, 2020). This is not surprising considering that, under the old rule, an ALJ had to determine whether a treating physician's opinion was supported by well-accepted medical evidence and not inconsistent with the rest of the record before controlling weight could be assigned. See 20 C.F.R. § 404.1527(c)(2), 416.927(c)(2) .
Under the new regulations, while it is true that the Commissioner no longer needs to assign particular evidentiary weight to the various treating sources in a medical record and their opinions, the Commissioner still must consider these factors when considering medical opinions. See 20 C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c); see also Andrew G., 2020 WL 5848776 at *5 (citing Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed.Reg. 5844, at 5867-68 (Jan. 18, 2017)). The new regulatory factors are as follows: (1) supportability, (2) consistency, (3) relationship with the claimant (which has five sub-factors to consider), (4) specialization, and (5) other factors. 20 C.F.R. §§ 404.1520c(c), 416.920c(c). However, unlike the previous regulation, an ALJ is now required to explain her approach to the first two factors when considering a medical opinion, but need not expound on the consideration given to the rest of the factors. 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The rules do provide an exception, however, requiring the Commissioner to apply the remaining factors when an ALJ finds multiple medical opinions of equal support and consistency on the same issue that differ slightly. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3). Further, the Commissioner need only analyze medical opinions at the source-level, meaning that the Commissioner need not discuss each and every medical opinion in the record, and may apply the factors holistically to a single medical source, without the need to apply the factors to each medical opinion. 20 C.F.R. §§ 404.1520c(b)(1), 416.920c(b)(1). These new rules do not apply to the Commissioner's analysis or consideration of nonmedical sources. 20 C.F.R. §§ 404.1520c(d), 416.920c(d). Thus, just as under the previous regulations when failure to fully consider the Burgess factors derived from 20 C.F.R. §§ 404.15227(c) and 416.929(c) would be grounds for remanding an ALJ's decision, an ALJ's failure to adequately consider and apply the new regulatory factors also require a reviewing court to remand. See, e.g., Andrew G., 2020 WL 5848776 at *6-9 (holding ALJ's RFC and non-disability conclusions did not properly apply the supportability and consistency factors and remanding because the determination was not otherwise supported by substantial evidence).
As to the required factors, the new rules provide that, for supportability, the strength of a medical opinion is increased as the relevance of the objective medical evidence and explanations increase. 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). Simply put, supportability is an inquiry geared toward assessing how well a medical source supported and explained their opinion(s). As for consistency, the new rules provide that the greater the consistency between a particular medical source/opinion and the other evidence in the medical record, the stronger that medical opinion becomes. 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(3). Consistency is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record, not just what a medical source had available to them.
As to the remaining factors, the third factor-relationship with the claimant- incorporates the following five sub-factors (which are quite similar to the Burgess factorsapplied under the previous regulations): (i) length of treatment; (ii) frequency of examinations (longitudinal understanding); (iii) purpose of the treatment; (iv) extent of the treatment (detail of understanding); and (v) examining relationship (i.e., in-person vs. consulting only). 20 C.F.R. §§ 404.1520c(c)(3)(i)-(v), 416.920c(c)(3)(i)-(v). The fourth factor-specialization-recognizes that a specialist giving an opinion within their specialty may be more persuasive than an opinion given by a non-specialist or a specialist in a less relevant field. 20 C.F.R. §§ 404.1520c(c)(4), 416.920c(c)(4). Finally, the fifth factor-a catch-all “other factors”-gives an ALJ the ability to consider anything else they might believe will “tend to support or contradict a medical opinion.” 20 C.F.R. §§ 404.1520c(c)(5), 416.920c(c)(5). The final factor does mention two particular, illustrative considerations-a medical source's familiarity with social security disability program's policies and evidentiary requirements as well as whether later-generated medical evidence makes a prior opinion more or less persuasive.
The Burgess factors include: “[1] the [l]ength of the treatment relationship and the frequency of examination; [2] the [n]ature and extent of the treatment relationship; [3] the relevant evidence . . ., particularly medical signs and laboratory findings, supporting the opinion; [4] the consistency of the opinion with the record as a whole; and [5] whether the physician is a specialist in the area covering the particular medical issues.” Id. at 129 (citing 20 C.F.R. § 404.1527(d)(2)(i)-(ii), (3)-(5)) (internal quotation marks omitted); see also Estrella, 925 F.3d at 94.
II. Analysis
A. Development of the Medical Record
The ALJ's duty to develop the record on behalf of a claimant is a threshold duty. Accordingly, before turning to other considerations, a “court must first be satisfied that the ALJ provided plaintiff with a full hearing under the Secretary's regulations and also fully and completely developed the administrative record.” Intonato v. Colvin, No. 13-cv-3426 (JLC), 2014 WL 3893288, at *8 (S.D.N.Y. Aug. 7, 2014) (quoting Scott v. Astrue, No. 09-cv-3999 (KAM) (RLM), 2010 WL 2736879, at *12 (E.D.N.Y. July 9, 2010)). Remand is appropriate when the ALJ fails to discharge this duty. See, e.g., Newton v. Berryhill, No. 18-cv-1244 (MPS), 2019 WL 4686594, at *2 (D. Conn. Sept. 26, 2019); Shafer 2018 WL 4233812 at *7-8. The ALJ must seek additional evidence or clarifications from medical sources when documentation in the record is insufficient to determine whether the claimant is disabled. Sanchez v. Comm'r of Soc. Sec., No. 18-cv-2027 (KMK), 2019 WL 4673740 at *8 (S.D.N.Y. Sept. 25, 2019). This duty is particularly important where a claimant alleges disability due to mental illness. Id. The ALJ also has a statutory and regulatory duty to develop a claimant's full medical record for a twelve-month period preceding the claimant's SSD or SSI filing. 42 U.S.C. § 423(d)(5)(B) (an ALJ “shall develop a complete medical history of at least the preceding twelve months for any case in which a determination is made that the individual is not under a disability”); 20 C.F.R. § 404.1512(d) (“Before we make a determination that you are not disabled, we will develop your complete medical history for at least the 12 months preceding the month in which you file your application unless there is a reason to believe that development of an earlier period is necessary.”).
In this case, the ALJ erred because she does not cite to a single medical record dated before September 2018, despite the date of Plaintiff's filing being only one month later on October 30, 2018-this clearly falls well short of the ALJ's duty to develop at least a twelvemonth period of Plaintiff's medical history. Further, while the Plaintiff does not make failure to develop a central part of her argument, Plaintiff's arguments necessarily require the Court to assess whether the ALJ met her affirmative duty. For the reasons that follow, both with respect to the medical record as to mental and physical impairments and the RFC the ALJ accordingly fashioned, the ALJ failed to sufficiently develop the record.
1. The Medical Record for Mental Impairments
Plaintiff's objection to the ALJ's mental RFC can be summarized as follows: the RFC did not account for Plaintiff's limitations in her ability to maintain a regular workday and work schedule. In fashioning the mental component of the RFC, the ALJ found the opinions of the CEs persuasive and effectively adopted them. The mental CEs were Drs. Blackwell and Kamin, two psychologists, hired as CEs by the state, who opined that Plaintiff maintained the RFC for unskilled work and was not severely limited or disabled. (R. 76-78 (Dr. Blackwell's report), 9093 (Dr. Kamin's report).) However, these CEs' never met and examined Plaintiff, and according to their reports, there were no prior medical opinions in the medical record, despite both CEs incorporating a discussion of Dr. Sanchez's early October 23, 2018 functional assessment of Plaintiff, prepared at the start of her mental health treatment. (See R. 71-72, 84-86 (listing Evidence of Record, with all records indicated “No” next to “Medical Opinion”).) While the ALJ's consideration of the persuasiveness of these two CEs' opinions will be discussed in more depth below, in the context of the duty to develop the record, the ALJ should have requested a functional assessment of Plaintiff's mental capacity from later in her treatment to better understand the impact of treatment over time. Courts in this Circuit have consistently held, albeit it in the treating physicians context, that when an ALJ has to determine an RFC, their failure to request a functional assessment when no such assessment exists in the record, or when any such assessments are insufficient, is a failure of their duty to develop the record. See Romero v. Comm'r of Soc. Sec., No. 18-cv-10248 (KHP), 2020 WL 3412936, at *13 (S.D.N.Y. June 22, 2020) (collecting cases). This duty takes on heightened importance with respect to a claimant's treating medical sources, because those sources “are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations.” Marinez v. Comm'r of Soc. Sec., 269 F.Supp.3d 207, 216 (S.D.N.Y. 2017) (citing 20 C.F.R. § 416.927(c)(2)). To satisfy this duty, an ALJ should have medical evidence from a medical source with a sufficiently persuasive opinion noting the “existence and severity of a disability.” See id. (citing Barrie on behalf of F.T. v. Berryhill, No. 16-cv-5150 (CS) (JCM), 2017 WL 2560013, at *10 (S.D.N.Y. June 12, 2017)). When an ALJ's RFC is questioned by a claimant, a reviewing court's “decision not to remand assumes that there are no obvious gaps in the record precluding the ALJ from properly assessing the claimant's residual functional capacity.” Newton, 2019 WL 4686594 at *2 (quoting Downes v. Colvin, No. 14-cv-7147 (JLC), 2015 WL 4481088, at *15 (S.D.N.Y. July 22, 2015)); see also Eusepi v. Colvin, 595 Fed.Appx. 7, 9 (2d Cir. 2014) (an ALJ is required to seek out additional evidence where there are “obvious gaps” in the administrative record).
Despite the fact that this quote is from a case dealing with the treating physicians rule, it applies equally here, as the relationship a medical source has with the claimant is something that an ALJ must explicitly consider, even if she is not required to explain her consideration of those factors, under the new regulations. See 20 CFR §§ 404.1520c(c)(3), 416.920c(c)(3).
The ALJ's failure to request a functional assessment from a source familiar with Plaintiff's mental impairments is exactly this type of obvious gap. This is particularly true given the heightened duties surrounding mental health, and the well-known dangers of relying too heavily on a snapshot of a claimant's mental health given the cyclical and sporadic nature of mental health symptoms. See Estrella, 925 F.3d at 98 (“[A] one-time snapshot of a claimant's status may not be indicative of her longitudinal mental health.”). Relatedly, because the ALJ failed to request a more recent functional assessment, the ALJ also failed to develop the record with respect to Plaintiff's capacity to maintain a regular work schedule, for which the two CEs found Plaintiff to be moderately limited. (See R. 76, 91.) The ALJ does not discuss anywhere in her decision how the RFC she fashioned accounts for this moderate limitation, nor does the ALJ attempt to reconcile this moderate limitation from the CEs' reports with Dr. Sanchez's October 23, 2018 mental examination of Plaintiff (R. 541), or MSW Fernandez's assessment on October 12, 2018 (R. 517), the only other records that approximate functional assessments, and neither of which addresses Plaintiff's ability to maintain a regular schedule such a limitation. (See R. 23-24 (ALJ decision's discussion of the CEs' opinions).) Given that the mental CEs never examined Plaintiff, and that no functional assessment existed in the record supporting Plaintiff's ability to maintain a regular work schedule, an obvious gap existed with respect to this moderate limitation, and the ALJ failed her duty to develop the record by not seeking more information.
The magnitude of this error is made clear by looking at the VE's disability hearing testimony that Plaintiff would be fired from the jobs she retained the RFC for if she was off-task more than 15% of the time. (R. 56.) The ALJ adopted this testimony. (R. 25-26.) The absence of any assessment by a medical source who actually examined Plaintiff, and was familiar with her mental impairments, therefore also leaves an obvious gap in the record with respect to supporting the VE's testimony regarding Plaintiff's ability to work a full work day and work week without falling off-task more than 15% of the time. While the Plaintiff focuses on the ALJ's reconciliation (or lack thereof) of the VE's testimony with the DOT definitions in attacking the ALJ's determination (J.S. 15-17), this misses the mark, as the ALJ did seek to clarify her hypotheticals to the VE. (R. 54-59.) However, what the ALJ did not do is attempt to explain or reconcile the VE's testimony regarding the percentage off-task with the mental CEs' opinions regarding her ability to maintain a schedule, or more directly, the ALJ's RFC. Nowhere in the ALJ's decision did she address the off-task issue, and in the Court's review of the Administrative Record, there is no such evidence. The ALJ's failure to address this obvious gap in the record, which directly implicates Plaintiff's RFC, prevented her from fulfilling her duty to develop the record.
2. The Medical Record for Physical Impairments
With respect to the medical record and the ALJ's duty to develop it for Plaintiff's fibromyalgia complaints and physical impairments, here, too, the ALJ failed. Plaintiff's argument in this regard is that the ALJ erred at step two, and subsequently, in fashioning the RFC, by determining Plaintiff's complaints of fibromyalgia did not amount to a severe impairment.
At step two of the sequential analysis, an ALJ must determine if the claimant has a “severe impairment” that significantly limits his or her ability to do basic work activities. Under the applicable regulations, an impairment or combination of impairments that significantly limits the claimant's ability to perform basic work activities is considered “severe.” 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The Commissioner has put forward certain SSRs laying out criteria that must be met before a claimant will be determined to have certain MDIs. In particular, SSR 12-2p guides the Commissioner's consideration of fibromyalgia diagnoses. In its introduction, the Commissioner notes that fibromyalgia “is a complex medical condition” with conditions “persist[ing] for at least 3 months” that is also “a common syndrome.” SSR 122p provides two set of criteria that, if met, establish a claimant's fibromyalgia as a severe impairment. The first set of criteria, referred to as the 1990 ACR Criteria, have three elements: (1) a history of widespread pain, (2) 11 of 18 positive tender points on physical examination, and (3) evidence that other disorders that could cause similar symptoms have been ruled out. SSR 12-2p § II.A. The second set of criteria, referred to as the 2010 ACR Criteria, have the same first and third elements, but replace the tender point criteria with evidence of repeated manifestations of six or more enumerated fibromyalgia symptoms. See SSR 12-2p § II.C. Plaintiff makes no argument that SSR 12-2p does not control here.
The Social Security Administration has posted SSR 12-2p, including the tender point site map, at the following address: https://www.ssa.gov/OP Home/rulings/di/01/SSR2012-02-di-01.html.
Similar to the above discussion for Plaintiff's mental health, the medical record was insufficiently developed with respect to the both the 1990 and 2010 ACR diagnostic criteria, and thus, as to Plaintiff's physical RFC as well. In her decision, referring to the 2010 ACR diagnostic criteria's second prong requiring a tender point examination, the ALJ stated that, despite the record containing a fibromyalgia diagnosis, the record did not “contain a tender point examination outlining each tender point indicating fibromyalgia, ” and therefore, rejected the diagnosis. (R. 18.). In this respect, the ALJ did not sufficiently develop the record because she did not seek to clarify the diagnosis, which was given by Plaintiff's own rheumatologist, and appeared consistently throughout Plaintiff's medical record. While the records of Dr. Tieng may not have supported the 2010 ACR Criteria in the end, as they only indicated tender points in Plaintiff's knees (see e.g., R. 557, 582, 584), the ALJ could not assure herself of that without requesting such records. Regarding the third criteria shared by both the 1990 and 2010 ACR Criteria, the ALJ similarly erred, although, the ALJ did not explicitly discuss this criterium in her decision. At the disability hearing, the ALJ had a colloquy with Plaintiff's counsel in which she asked if there was anything in the record that would satisfy this prong, to which counsel replied no. (R. 48.) While it is true that the burden remains with the Plaintiff at the second step, the ALJ's duty to develop the record is not diminished by this burden, as the duty is an affirmative one requiring the development on the claimant's behalf, regardless of their representation by counsel. See Hilsdorf v. Comm'r of Soc. Sec., 724 F.Supp.2d 330, 342-43 (E.D.N.Y. 2010) (citing Moran v. Astrue, 569 F.3d 108, 112 (2d Cir.2009)). Notwithstanding that the record had an obvious gap, the ALJ nonetheless chose to reject a medical diagnosis from a specialist that Plaintiff had a significant medical history with, including receiving nerve-pain medication, instead of seeking more information. In this regard, the ALJ again failed her duty to develop the record.
The ALJ also seemingly ignored the second prong for the 1990 ACR Criteria, which requires repeated manifestations of at least six of the enumerated symptoms. Plaintiff argues in the Joint Stipulation that she meets at least five of these symptoms, and on the Court's review of the Administrative Record, there appears to be medical evidence of a sixth factor-sleep issues and not waking refreshed. (See e.g., 544, 546, 647.) Because, however, this issue goes more to substantial evidence and less to legal error, the Court does not base its recommendation on this particular failure of the ALJ.
However, despite finding Plaintiff's fibromyalgia to not be a severe MDI at step two, the ALJ did find Plaintiff had a severe physical impairment (i.e., Sjogren's disease) and proceeded with the analysis, noting that her ultimate RFC determination of light level unskilled work (with additional limitations) accounted for all of Plaintiff's physical limitations, regardless of the characterization at step two. (R. 18.) However, the ALJ failed to cite to any medical evidence supporting the limitation in the RFC or Plaintiff's ability to complete the jobs that the ALJ found exist at step five. (R. 25-26.) In contrast to the discussion of functional assessments in the mental health section above, here, the record does not contain a single, physical functional assessment of Plaintiff from her treating medical sources. The record does contain the opinions of the two physical CEs, but those CEs did not physically examine Plaintiff and opined that Plaintiff had no limitations-an opinion the ALJ rejected. (R. 24.) The closest thing to a functional physical assessment from May 16, 2019, which was a one-time visit with a Family Nurse Practitioner. (R. 780-83.) FNP Del Campo's notes indicate that a physical examination showed full range of motion in Plaintiff's musculoskeletal system, but that she also diagnosed Plaintiff with “peripheral vascular disease” and encouraged Plaintiff to “participate in a walking program.” (R. 781.) Further, the notes indicate that at the time, Plaintiff was suffering from pain and discomfort that limited her lifestyle and ability to move around. ((R. 780.) However, in discussing why Plaintiff was not as severely impaired as her subjective complaints indicated, and thus, why the RFC was sufficient, the ALJ cited almost exclusively to a Disability Report dated December 12, 2018. (R. 22-23.) This means that the ALJ relied on Plaintiff's subjective complaints from five months before Plaintiff's visit with FNP Del Campo and nine months before the ALJ rendered her decision. When stated as such, the ALJ's failure to get a functional assessment from Dr. Tieng, or any other treating medical source is all the more glaring.
The lack of a physical functional assessment is an obvious gap in the record that, when considered alongside the ALJ's failure to develop the record with respect to Plaintiff's functional capacity in light of her physical impairments, and failure to develop the record sufficiently regarding Plaintiff's fibromyalgia diagnosis, deprived the Plaintiff of the full and fair hearing to which she is entitled. While it is true the Plaintiff has the burden at steps one through four, the ALJ's affirmative duty to develop the record requires that she address all obvious gaps. The fact that the ALJ explicitly acknowledged certain gaps in the record, yet did not ask Plaintiff to request, or request herself, more documentation from Dr. Tieng, or any other source, to supplement the medical record regarding her fibromyalgia diagnosis and a functional assessment of Plaintiff's physical capacity was legal error and an incorrect application of the appropriate legal standards.
* * *
With the threshold nature of this duty, and the Court's recommended findings above that leave the duty to develop the record unsatisfied, the Court will not precede to a substantial evidence analysis. See Johnson v. Bowen, 817 F.2d 983, 985-86 (2d Cir. 1987). Rather, the Court will next turn to a discussion of whether the ALJ also committed legal error in applying the new regulations controlling the weighing of medical opinions.
B. The ALJ's Assessment of the Consultative Examiners
For all claims filed on or after March 27, 2017, the SSA adopted new regulations that change what was traditionally known as the treating physicians rule. While the new regulations eschew the old treating physicians rule and the concept of attributing specific weight to those physicians who have a sufficiently close relationship with a claimant, the new regulations retain much of the same focus as the old rule while now asking the ALJ to use substantially similar factors in determining how persuasive a given opinion is. Having reviewed the Administrative Record and ALJ's decision for application of the proper legal standards, this Court cannot say that the ALJ complied with the mandates of the new regulations controlling the consideration of medical opinions. Below, the Court discusses how the ALJ failed to properly apply the new regulations in weighing the two mental CEs and two physical CEs' opinions, and also how the ALJ failed to apply the regulations to certain other medical sources.
1. Consideration of the Medical Opinions of Drs. Blackwell and Kamin
Drs. Blackwell and Kamin were both hired as state agency medical disability consulting examiners. Neither doctor met or examined Plaintiff, instead, only reviewing her files. As discussed in detail above, both CEs concluded that Plaintiff had mild to moderate mental limitations and that she retained the ability to perform unskilled work, ultimately concluding Plaintiff was not disabled. See supra Background § 3; (see also R. 74-78 (Dr. Blackwell), 88-93 (Dr. Kamin).)
The new regulations controlling the ALJ's assessment of medical opinions now require an ALJ to explain how persuasive she found the medical opinions she considered, and specifically, how well a medical source supports their own opinion(s) and how consistent a medical source/opinion is with the medical evidence as a whole. The ALJ did properly cite to the new regulations. (R. 21 (citing 20 C.F.R. §§ 404.1520c and 416.920c).) The ALJ then, after discussion and citation to some objective medical evidence in the record, concluded that the opinions of Drs. Blackwell and Kamin were “consistent with other evidence in the file” and found them to be “persuasive.” (R. 23-24.) However, despite citing to the new regulations, and doing a consistency analysis, the ALJ ignored the supportability factor and conducted an insufficient consistency analysis.
The “supportability” factor asks how well a medical source supported their opinion(s) with “objective medical evidence” and “supporting explanations.” See 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). Nowhere in the ALJ's decision does she explain, as the new regulations require, what the respective CEs' used to support their opinions and reach their ultimate conclusions. (See R. 23-24.) Instead, the ALJ discussed some of the objective medical evidence in the record in comparison to the CEs' opinions to determine if the evidence and opinions were consistent, which is what the consistency, not supportability factors, calls for. Thus, the ALJ failed to apply or even consider the supportability factor.
The “consistency” factor calls for a comparison between the medical source's opinion and “evidence from other medical sources and nonmedical sources” in the file. See 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). Without stating it explicitly, the ALJ did engage in a consistency analysis. (R. 23-24.) There, the ALJ noted that the opinions of the mental CEs were consistent with three large categories of evidence in the record. First, that Plaintiff reported on multiple occasions that she was not feeling depressed or did not reported that she had little interest in doing things. (R. 23.) In support, the ALJ cited to records from BronxCare and MLK Center at which, for visits unrelated to Plaintiff's mental health (i.e., OB/GYN, gastrointestinal pain, epigastric issues, post-discharge, etc.), Plaintiff answered no to basic screening questions regarding her mental health. (See, e.g., R. 402, 450, 466, 578, 718, 721, 740.) While some of the cited records are consistent with this proposition, the ALJ cited to a visit in which the Plaintiff reported having little interest in doing things. (See R. 450 (September 25, 2018 BronxCare visit for gastrointestinal pain).) The ALJ ignored this inconsistency. Further, for this proposition, the ALJ did not explain why she cited exclusively to medical records from BronxCare and MLK Center-two clinics that Plaintiff was not going to for her mental health- or discuss the import of non-mental health records being relied on for an assessment of Plaintiff's mental impairments. The second evidentiary category was that on multiple occasions Plaintiff's medical sources noted she was cooperative, had normal affect, and did not present with psychiatric symptoms. (R. 24.) In support, the ALJ again cited to similar records from BronxCare and MLK Center, unrelated to her mental health, as well as three visits in October 2018 with her primary physician, Dr. Patel. The ALJ again failed to cite any records from NYPCC, the clinic Plaintiff attended for her mental health. The ALJ also failed to mention here, or at any other point in her decision, the fact that Plaintiff's mental health treatment history seems to have only begun in October 2018 when her primary physician gave her a referral to a psychiatrist, which prompted Plaintiff to start going to NYPCC. (R. 777 (Dr. Patel's referral to psychotherapy and psychiatry on October 5, 2018).) Given that the NYPCC records are numerous and show a long-term picture of Plaintiff's mental health, the ALJ's failure to assess and discuss these, while focusing solely on the first month or two of Plaintiff's mental health treatment history, was significant. The ALJ further ignored, or at minimum, failed to reconcile certain records that she did cite contradicting the second evidentiary proposition. For example, with regards to Dr. Patel's records, the ALJ cited an October 30, 2018 record indicating that Plaintiff began medications for her depression, but that she was not tolerating them well, which the ALJ failed to address. Further, in this analysis, the ALJ failed to cite to or discuss in any way more recent visits with Dr. Patel that indicated Plaintiff's psychology review of system revealed positive findings for depression, anxiety, and/or suicidal ideations at visits on January 23, 2019 (R. 765), February 14, 2019 (R. 762), March 14, 2019 (R. 758), July 10, 2019 (R. 753), and July 22, 2019 (R. 750).
Neither the ALJ nor the parties ever addressed the issue of whether the two non-physician Master of Social Work employees at NYPCC-MSWs Fernandez and Hildago-should be viewed as medical or nonmedical sources under the new regulations. Under the new regulations that replaced the treating physicians rule, an ALJ need only apply the factors to medical sources (and prior administrative medical findings, which is not applicable to this case). The term “medical source, ” as used in the new regulations, is defined by the Commissioner at 20 C.F.R. §§ 404.1502(d) and 416.902(i), and would seem to include an MSW conducting psychotherapy sessions. Regardless, even if the ALJ was not required to apply to new regulations to the MSWs' findings and opinions., the ALJ was required to consider both medical and nonmedical sources' opinions in evaluating the consistency factor under the new regulations. See 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). Thus, regardless of how the MSWs are classified, the ALJ should have considered the entirety of the NYPCC records, including the regularly-held psychotherapy sessions Plaintiff had with MSW Hildago.
While an ALJ is entitled to reconcile conflicting evidence in the record, and need not address every last piece of medical evidence, the ALJ must provide a reviewing Court with a sufficient explanation to ensure that they have complied with the legal procedures controlling their decision and cannot ignore or mischaracterize evidence. See, e.g., 557 F.3d at 82-84 (mischaracterizing evidence); Kohler, 546 F.3d at 268-69 (overlooking and mischaracterizing evidence); Ruiz v. Barnhart, No. 01-cv-1120 (DC), 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring evidence). These principles apply equally to the ALJ's mandatory explanation of the new consistency factor. Because the ALJ failed to address the supportability factor, and because the ALJ's consistency analysis was insufficient with respect to the two mental CEs on whom she relied, particularly because it ignored certain pieces of evidence, the ALJ committed legal error by failing to apply the proper legal standards in the form of the post-March 26, 2017 SSA regulations.
The ALJ also committed error by failing to recognize the medical findings and medical opinions in the record of other medical sources as medical opinions to which the new regulations should have been applied. For example, the October 23, 2018 functional assessment of Dr. Sanchez (R. 541-42), and the general examinations conducted by Dr. Patel (see e.g., R. 750-779), are both clear examples of medical sources, with medical findings, if not medical opinions, rendered throughout the record. So too are the reports from Dr. Herivaux at NYPCC, who managed Plaintiff's psychotropic medications for her mental impairments. (R. 669-74.) The ALJ failed entirely to apply the new regulations to these medical sources and their opinions. While the new regulations were explicitly intended to get rid of the hierarchy of treating physicians versus non-treating physicians, an ALJ still must provide a rationale for discounting the opinions of Plaintiff's own treating medical sources and cannot ignore them as was done here. Thus, the ALJ also committed error by not applying the proper legal standards to other mental health medical sources in the record.
2. Consideration of the Medical Opinions of Drs. Putcha and Saeed
Unlike the mental CEs' opinions, the ALJ did not find the physical CEs' opinions consistent with the record, and therefore, did not adopt their conclusions that Plaintiff was not disabled and suffered no limitations from her physical impairments. (R. 24.) However, this does not rescue the ALJ from correctly applying the new regulations, and again results in a finding of legal error.
In her decision, the ALJ states that she found the opinions of Drs. Putcha and Saeed regarding Plaintiff's lack of physical limitations to be inconsistent with the evidence. (R. 24.) To support this, the ALJ correctly noted that Plaintiff often presented with joint pain “related to her Sjogren's disease, ” and as such, she would have some physical limitations. (R. 24.) However, the ALJ also noted elsewhere that Plaintiff's chronic joint and muscle pain would resolve with Tylenol, citing a single record in support. (R. 21 (citing R. 404, September 21, 2019 MLK Center post-discharge visit).). However, this record is from early on in Plaintiff's treatment history, from one of her non-primary medical sources (the MLK Center), and signed by a doctor with no noted specialty (i.e. neurologist, rheumatologist, orthopedist, etc.). In doing so, the ALJ relied on a source with no noted history with Plaintiff, and one that was directly undermined by records from Dr. Tieng (Plaintiff's rheumatologist), indicating she prescribed Plaintiff the nervepain medication, Gabapentin, for her fibromyalgia in April 2019, and increased the dosages at subsequent visits. (See R. 557, 577, 582, 584, 739.) This, then, suggests that Plaintiff in fact had continuing pain not adequately addressed by Tylenol. Thus, the ALJ's statement that the Plaintiff's pain would resolve with Tylenol on occasion is entirely inconsistent with the record, despite the ALJ having rejected the CEs' failure to find any functional limitations.
Equally notable is the ALJ's complete failure to apply the new regulations to Dr. Tieng, a long-term treating source of Plaintiff. This is particularly egregious given the inconsistency between the ALJ's rejection of fibromyalgia as a severe impairment and Dr. Tieng's consistent diagnosis of Plaintiff's fibromyalgia. The ALJ also failed to apply the new regulations to FNP Del Campo, despite citing to the single visit Plaintiff had with her in the record, on which the ALJ relied for showing that Plaintiff had a normal range of motion in all musculoskeletal areas with no abnormalities. (R. 22 (citing R. 781).) Given the ALJ's seeming adoption of FNP Del Campo's physical examination findings, it was an error for the ALJ to do so without applying the new regulations which must be applied to all medical opinions considered by an ALJ.
* * *
Given the newness of the regulations, the ALJ's failure to develop the record in significant areas, for both the mental and physical aspect of Plaintiff's claims, and the ALJ's failure to properly apply the new regulations replacing the treating physicians rules, this Court will not engage in a substantial evidence review to determine if the legal errors were harmless. On remand, the ALJ should further develop the record with respect to the obvious gaps discussed above, as well as explicitly discuss the supportability and consistency of the various medical sources' respective opinions about Plaintiff's physical limitations given her severe physical impairment(s).
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Commissioner's motion be DENIED, that Plaintiff's motion GRANTED, and that this case be remanded back to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for additional proceedings in which the proper legal standards will be applied to Plaintiff's claims.
NOTICE
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).
Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Alison J. Nathan at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Nathan. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).