Opinion
20cv6785 (AT) (DF)
03-14-2022
THOMASINA KIMBROUGH, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, [1] Defendant.
HONORABLE ANALISA TORRES, U.S.D.J.
REPORT AND RECOMMENDATION
DEBRA FREEMAN UNITED STATES MAGISTRATE JUDGE
In this Social Security Action, which has been referred to this Court for a report and recommendation, plaintiff Thomasina Kimbrough (“Plaintiff”) seeks review of the final determination of defendant Commissioner of the Social Security Administration (“SSA”) (“Defendant, ” or the “Commissioner”), denying Plaintiff Social Security Disability Insurance (“SSDI”) under the Social Security Act (the “Act”) on the grounds that, for the relevant period, Plaintiff's impairments did not render her disabled under the Act. Currently before the Court is Plaintiff's motion for judgment on the pleadings to remand the case for further proceedings (Dkt. 23), and Defendant's cross-motion for judgment on the pleadings affirming the Commissioner's decision and dismissing the complaint (Dkt. 25). For the reasons set forth below, this Court recommends that Plaintiff's motion be granted, and that Defendant's motion be denied.
The background facts set forth herein are taken from the SSA Administrative Record (Dkt. 15) (referred to herein as “R.” or the “Record”).
Plaintiff filed an application for SSDI on October 25, 2016, alleging a disability onset date of September 27, 2015, due to depression, anxiety, and vertigo. (R., at 158-64, 181.) After Plaintiffs claims were initially denied on February 8, 2017 (id, at 84, 87-96), Plaintiff requested a hearing before an administrative law judge (“ALJ”) (id, at 97-98). On January 29, 2019, Plaintiff, represented by counsel, appeared at a hearing before ALJ Elias Feuer (the “Hearing”). At the Hearing, ALJ Feuer also heard testimony from Josiah Pearson, a vocational expert (“VE”). (Id., at 39-71.) On May 2, 2019, ALJ Feuer issued an unfavorable decision finding that Plaintiff was not disabled under the Act. (Id., at 10-27.) Plaintiff sought review of the ALJ's decision by the Appeals Council (id, at 244-46), and the ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiffs request for review (id, at 1-3).
A. Plaintiffs Personal History
Plaintiff was born on July 21, 1977 (R., at 158), such that she was 39 years old at the time she filed her application for SSDI benefits. Plaintiff completed two years of college (id, at 182) and worked as a police officer with the New York City Police Department (“NYPD”) for approximately 11 years, from 2004 to 2015 (id.).
B. Medical Evidence
As Plaintiff reported that her disability began on September 27, 2015, the relevant period under review for purposes of her application for SSDI benefits runs from that date until December 31, 2022, the last date when Plaintiff will meet the “insured status” requirements of the Act. See 42 U.S.C. §§ 423(a)(1), (c)(1); 20 C.F.R. §§ 404.130, 404.315(a); Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989).
To be eligible for SSDI benefits, “an applicant must be ‘insured for disability insurance benefits.'” Arnone, 882 F.2d at 37 (quoting 42 U.S.C. §§ 423(a)(1)(A), 423(c)(1)). “An applicant's ‘insured status' is generally dependent upon a ratio of accumulated ‘quarters of coverage, '” i.e., quarters in which the applicant earned wages and paid taxes, “to total quarters.” Id. (citations omitted). To qualify for SSDI benefits, “Plaintiff's disability onset date must fall prior to [her] date last insured.” Camacho v. Astrue, No. 08-CV-6425, 2010 WL 114539, at *2 (W.D.N.Y. Jan. 7, 2010) (citing Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)); 20 C.F.R. § 404.315(a).
1. Treating Physician - Dr. Viviana Galli
Plaintiff saw Dr. Viviana Galli, a psychiatrist at Mingze Medical P.C., on October 27, 2016 for an intake appointment. (R., at 292.) Dr. Galli indicated that Plaintiff had bipolar disorder and alcohol abuse disorder. (Id., at 293.) Plaintiff reported that, three months earlier, she had experienced thoughts of suicide, and that, two years earlier, she had experienced a nervous breakdown. (Id., at 295.) Plaintiff told Dr. Galli that she started drinking more after she got evicted from her home for having a dog. (Id.) She said that she eventually went to various rehabilitation programs for her drinking, including Alcoholics Anonymous, and that she saw an NYPD therapist. (Id.) According to Plaintiff, the NYPD forced her to retire in 2015, and she fell into a depression. (Id.) Plaintiff reported that, at times, she did not want to get out of bed or take care of herself and lacked the energy to walk her dog, but that, at other times, she had “bursts of energy” and did not need to sleep (id.), commenting that “it may [have been] during those times that [s]he ha[d] taken trips all over the world, ” to Germany, Aruba, Costa Rica, Puerto Rico, and other places in the United States. (Id.) Plaintiff noted that she began to drink much more after she stopped working. (Id.)
Upon a mental status examination, Dr. Galli noted that Plaintiff was alert, oriented, and well-groomed, but that she had a labile mood. (Id., at 295-96.) Dr. Galli also observed that Plaintiff's thought process was “goal directed, ” that she had no delusions or paranoia, that she had “normal rate and volume” of speech, and that her insight and judgment were “limited.” (Id., at 296.) Dr. Galli assessed Plaintiff as having had a “long history of mood swings” that “deteriorated after going through [the] high stress situation” of being evicted, and that she had then “developed an alcohol abuse that was not there before . . . .” (Id.) It is not clear from Dr. Galli's notes which medications Plaintiff had taken at which times, but the notes reflect that, at least at some point, Plaintiff had been prescribed Seroquel, Risperidone, Lexapro, Zoloft, Trazodone, and Buspar. (Id., at 293, 295.)
Seroquel and Risperidone are used to treat certain “mental/mood” conditions, such as bipolar disorder. https://www.webmd.com/drugs/2/drug-4718/seroquel-oral/details; https://www.webmd.com/drugs/2/drug-4718/seroquel-oral/details. Lexapro is used to treat depression and anxiety. https://www.webmd.com/drugs/2/drug-63990/lexapro-oral/details. Zoloft and Trazodone are used to treat depression. https://www.webmd.com/drugs/2/drug35/zoloft-oral/details; https://www.webmd.com/drugs/2/drug-11188/trazodone-oral/details. Buspar is used to treat anxiety. https://www.webmd.com/drugs/2/drug-9036/buspar-oral/details.
On November 7, 2016, Plaintiff told Dr. Galli that she had been diagnosed with hepatitis C. (Id., at 300.) She further noted that she could not increase her dose of Seroquel because it “was too sedative.” (Id.) Plaintiff reported that she had stopped drinking “since she started to take Seroquel and [was] able to sleep.” (Id.) Dr. Galli's findings were the same upon a mental status examination, except she found that Plaintiff's insight and judgment were “improved.” (Id.)
On November 21, 2016 and December 10, 2016, Dr. Galli observed that Plaintiff smelled of alcohol, and Plaintiff admitted to drinking again. (See id., at 302, 306.) At both visits, Dr. Galli noted that Plaintiff's insight and judgment were “limited.” (Id., at 302, 306.) On January 23, 2017, Plaintiff reported that she had stopped drinking. (Id., at 329.) She noted that she was trying to get treatment for hepatitis, but said her insurance “will not pay.” (Id.) She further noted that her medications were working better since she stopped drinking. (Id.) On March 21, 2017, Dr. Galli indicated that the “[m]edications seem[] to be working ok, no depression, no anxiety.” (Id., at 333.) On April 27, 2017, Plaintiff reported that her mood had been “ok lately, ” but that “up to a few weeks ago her depression was severe, ” and that she “did not want to get up from bed, take [a] shower, or prepare food.” (Id., at 335.) On May 24, 2017, Plaintiff reported that she was not drinking and that her mood had been “very stable.” (Id., at 337.) On May 3, 2018, Dr. Galli noted that Plaintiff had run out of her medications because her last visit had been several months earlier. (Id., at 342.) She observed that Plaintiff's mood was “intense again and mildly labile” and that Plaintiff was “louder than usual and somewhat tangential.” (Id.) Plaintiff said that she would go back on her medication right away. (Id.)
Other visits with Dr. Galli occurred on February 28, 2017 (id., at 332), August 23, 2017 (id., at 338), September 30, 2017 (id., at 339), and October 24, 2017 (id., at 341).
2. Consultative Examinations (“CEs”)
a. Dr. Sharon Revan (Internal Medicine)
Plaintiff saw Dr. Sharon Revan for an internal medicine CE on January 22, 2017. (R., at 310-12.) Plaintiff reported a history of “vertigo, depression, bipolar disorder, anxiety, and stress.” (Id.) She stated that she had been experiencing vertigo since 2013 due to “an incident at work, ” and that the “vertigo happens every 3 months, ” “can last about 40 minutes, ” and can occur at any time. (Id.) Plaintiff also reported that she had had a CAT scan, which “did not show any tumor, ” but that she had not seen a neurologist. (Id.) Plaintiff reported a history of drinking, but said she was “down to a glass a week.” (Id.) Plaintiff indicated that she showered, dressed herself, cooked, cleaned, did laundry, and went shopping. (Id., at 311.) Plaintiff further indicated that she watched TV, socialized, and walked her dog. (Id.) Plaintiff reported, though, that she had neck and back pain when standing and lying down. (Id., at 310.)
Dr. Revan noted that Plaintiff knew who the president was and what year it was, but that she thought it was fall instead of winter. (Id.) Upon a physical examination, Dr. Revan observed that Plaintiff was in no acute distress; that her gait and stance were normal; that she had full range of motion in her shoulders, elbows, forearms, wrists, hips, knees, and ankles; that she had 5/5 strength “in the upper and lower extremities”; that her hand and finger dexterity were “intact”; and that her grip strength was “5/5 bilaterally.” (Id., at 311-12.) Dr. Revan opined that Plaintiff had “no limitation with her speech, vision, or hearing, ” no limitations “with the upper extremities for fine and gross motor activity, ” no limitations “with sitting and walking, ” and no limitations with personal grooming or activities of daily living (“ADLs”). (Id., at 312.) Dr. Revan opined that Plaintiff had mild limitations with standing and lying down “due to neck and back pain.” (Id.)
b. Dr. Ruby Phillips (Psychiatry)
Plaintiff saw Dr. Phillips for a psychiatric CE on January 22, 2017. (Id., at 313-16.) Plaintiff told Dr. Phillips that she lived alone and that she had a high school diploma and two years of college. (Id.) Plaintiff reported several hospitalizations in 2013 and 2014 due to depression, anxiety, and symptoms of mania. (Id.) She noted that she was taking Risperidone, Quetiapine, and Buspirone (id.), and that she had difficulty falling asleep and loss of appetite (id.). Dr. Phillips noted that Plaintiff's reported symptoms of mania included “pressured speech, psychomotor agitation, distractibility, decreased need for sleep, flight of ideas, and an expansive mood, ” and that her cognitive symptoms included “short-term memory deficits, concentration difficulties, and long-term memory deficits.” (Id., at 313-14.) Dr. Phillips also noted, however, that Plaintiff did not report symptoms of depression, anxiety, or panic attacks. (Id.) Plaintiff told Dr. Phillips that she had been in “seven 28-day residential drug treatment programs and that she first attended an [Alcoholics Anonymous] meeting in 2013.” (Id., at 314.) Plaintiff reported that, at the time, she was drinking “moderate amounts.” (Id.) Plaintiff also noted that she had close family relationships. (Id., at 315.)
Quetiapine is used to treat bipolar disorder and sudden episodes of mania or depression associated with bipolar disorder. https://www.webmd.com/drugs/2/drug-4689-8274/quetiapineoral/quetiapine-oral/details. Buspirone is the generic version of Buspar. https://www.medicalnewstoday.com/articles/buspar-side-effects.
Upon a mental status examination, Dr. Phillips noted that Plaintiff's “demeanor was cooperative but expansive” and that her “manner of relating was adequate, but somewhat odd.” (Id., at 314.) Dr. Phillips observed that Plaintiff's motor behavior was “somewhat restless”; that her voice was “loud”; that her expressive and receptive language were both “adequate”; that her thought processes were “coherent and goal directed, ” but also “notable for being tangential”; that her affect was “somewhat euphoric”; that her mood was “euthymic”; that her attention and concentration, as well as her recent and remote memory skills, were “intact”; that her intellectual functioning was “average”; that her insight was “poor”; and that her judgment was “fair.” (Id., at 314-15.)
Dr. Phillips opined that there was no evidence of any limitation in Plaintiff's ability to “follow and understand simple directions and instructions, ” “perform simple tasks independently, ” “maintain attention and concentration, ” “maintain a regular schedule, ” “learn new tasks, ” or “perform complex tasks independently.” (Id., at 315-16.) Dr. Phillips opined that Plaintiff was “moderately limited” in her ability to “make appropriate decisions, ” “relate adequately with others, ” and “appropriately deal with stress, ” and that her difficulties were “caused by symptoms of mania.” (Id., at 316.) Dr. Phillips noted that the results of her examination appeared to be “consistent with psychiatric problems, ” and that this might “significantly interfere with [Plaintiff's] ability to function on a daily basis.” (Id.) Dr. Phillips diagnosed bipolar disorder, and she opined that Plaintiff's prognosis was “[g]uarded given adequate treatment and compliance.” (Id.)
c.Dr. T. Harding (Psychology)
On February 8, 2017, Dr. T. Harding, a psychological consultant, issued an opinion based solely on a review of the record. (R., at 73-84.) Dr. Harding opined that one or more of Plaintiff's “medically determinable impairments could have reasonably been expected to produce the alleged symptoms; however, the [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms [were] generally not consistent with the evidence of record.” (Id., at 80.) Dr. Harding opined that Plaintiff was “moderately limited” in her ability “to maintain attention and concentration for extended periods, ” “to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, ” “to 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, ” “to interact appropriately with the general public, ” “to accept instructions and respond appropriately to criticism from supervisors, ” “to respond appropriately to changes in the work setting, ” and “to set realistic goals or make plans independently of others.” (Id., at 81-82.) Dr. Harding further opined that Plaintiff was limited to “unskilled work because of the impairments.” (Id., at 83.)
C. Non-Medical Evidence
1.Plaintiffs Function Report
Plaintiff filled out a function report on December 16, 2016. (See R., at 190-99.) In that report, Plaintiff noted that she lived alone, but that she took care of a guinea pig and a dog. (Id., at 191.) She noted that her conditions did not affect her ability to dress or bathe, but that she was “limited” in her ability to care for her hair and to feed herself. (Id.) She wrote that she was able to do house chores such as cleaning and dusting. (Id., at 192.) Plaintiff noted that she went outside “for appointments and to visit family” and that she shopped “2 times a month for about 45 minutes to an hour” for groceries. (Id., at 193.) She indicated that she was able to pay her bills, count change, and handle her finances. (Id., at 194.) With respect to her then-current social activities, Plaintiff indicated that she spent time with others and, where asked by the form to “describe the kinds of things [she did] with others, ” she wrote: “we talk, laugh, watch movies when pain and illness allows me to.” (Id.) She also noted, however, that she had problems getting along with people because “people g[o]t on [her] nerves except for [her] mother.” (Id., at 195.)
Plaintiff indicated that she was able to climb stairs, kneel, and squat, but that she was “limited” in her ability to lift, stand, walk, sit, reach, use her hands, and see. (Id., at 195-96.) Plaintiff wrote that she was able to walk two blocks before needing to stop and rest, and that she had problems paying attention and finishing tasks “[d]ue to pain and illness.” (Id., at 196.) She indicated that she could follow spoken and written instructions (id., at 197), but noted that, since she left the NYPD, she had “[did] not and [could not] get along with authority.” (Id.) She wrote that she had trouble remembering things “due to stress, ” and that stress and changes in schedule made her anxious and depressed. (Id.) Plaintiff noted that she felt anxious “3-4 times a week” for “about a quarter of a day.” (Id., at 198). She explained that, when she experienced an attack of anxiety, she would “need to clean” or “talk on the phone” (id., at 197) and that her symptoms would include “confusion” (id.), but she also indicated that, during an anxiety attack, she was still able to do things like shop and drive (id., at 198).
2. The Hearing
As noted above, Plaintiff, represented by counsel, testified before ALJ Feuer at the Hearing on January 29, 2019. (See R., at 42-66.) At the Hearing, the ALJ asked Plaintiff's counsel, Christopher Latham, Esq. (“Latham”), whether the record was complete, and Latham responded: “We were attempting to get some further records from Dr. [Galli] [] but she retired and the office where her office directed us to advised us that Dr. [Galli] was never affiliated with them and so we could not obtain any further records from her. But I guess we're still trying to. But otherwise as far as I know, yes, Your Honor, the record is complete.” (Id., at 42.)
The spelling of Dr. Galli's name was not provided on the record of the Hearing, and the transcriber recorded it phonetically as “Dr. Gauwi.” (See id., at 47-48.)
i.Plaintiff's Testimony Before the ALJ
Plaintiff testified at the Hearing that she stopped drinking when she retired in 2015. (Id., at 47.) The ALJ noted that Dr. Galli had indicated that Plaintiff smelled of alcohol during two visits in 2016, and Plaintiff responded that that was “impossible” because she was on medication for hepatitis, and “you cannot drink with those pills.” (Id., at 48.) Plaintiff further testified that she had been hospitalized in 2013 and that, after that, the NYPD had kept her inside on desk duty until she was forced to retire. (Id., at 49.) She additionally testified that the NYPD had put her in rehab, and that she had also been in “the psych ward for six days.” (Id., at 50.) She testified that the NYPD had tried to fire her because they said she was “psycho, ” and that her union suggested she retire instead so that she would receive a pension. (Id., at 51-52.)
Plaintiff testified that she took five medications for her mental health, including Buspar for her vertigo. (Id., at 54.) Plaintiff stated that she was not seeing a therapist or psychiatrist at the time, and that she was “surviving off of” refills that Dr. Galli had given her. (Id.) Plaintiff testified that she had not taken her medication that day because, if she had, she “probably wouldn't have made it.” (Id.) She said that she could “stay up for like two days, ” but that she would then “crash” and sleep very deeply. (Id., at 54-55.)
Plaintiff testified that she lived with her father and dog and that she walked the dog twice a day. (Id., at 56-57.) She testified that she used Facebook and Instagram, estimating that she checked her messages for perhaps 15 or 20 minutes per day. (Id., at 58.)
When asked by the ALJ why she had not looked for work since she left the NYPD, Plaintiff responded that she did not “even go outside, ” did not “even like [herself], ” had no motivation, and did not care. (Id., at 59-60.) She stated that she had a car, but did not drive it. (Id., at 60.)
Plaintiff's counsel, Latham, then asked Plaintiff to describe the side effects of medication that she experienced. (Id., at 61.) Plaintiff testified that she suffered from depression and severe anxiety, and that, when she took her depression pills, she “could be so down like [she] [couldn't] even move” and that, when she took her anxiety pills, she could be so hyper and “all over the place” that she “[couldn't] even calm down.” (Id., at 61-62.) Plaintiff testified that she would “never want to go back” to her job at the NYPD because they treated her poorly, and she said that she did not know if she would want a job answering phones. (Id., at 64.) Latham asked how often Plaintiff stayed awake for several days at a time, and she responded, “all the time . . . . I never sleep.” (Id.)
ii. The VE's Testimony Before the ALJ
The ALJ then heard testimony from VE Pearson. (See R., at 66-70.) The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education, and experience, with “no exertional limitations, [but who] is limited to no working at unprotected heights, ” “[l]imited to performing simple routine and repetitive tasks and making simple work-related decisions, ” “limited to occasional interaction with co-works and supervisors and assume no public [interaction], ” and “to minimize stress, [limited to] no production rate work or working in tandem with co-workers.” (Id., at 67.) The VE testified that such an individual could not perform Plaintiff's past work as a police officer, but could perform the work of a laundry laborer, a counter supply worker, and a price marker. (Id., at 67-68.) The ALJ then asked whether, if the individual had more than one unscheduled monthly absence, jobs would still be available, and the VE responded that one unscheduled absence per month “would be [the] maximum tolerable so if it's more than one, no, there would not be work available.” (Id., at 68.) The ALJ then asked what the “off-task limit” was, and the VE testified that “we start to see an erosion in the number of jobs somewhere around 8% of the time off-task, ” and that at “15% or more time off-task, [he] just [did not] believe an individual would be able to maintain employment long-term.” (Id.)
Latham asked the VE whether his answers would change in any respect, “if the hypothetical individual were limited to less than occasional contact with co-workers, the general public[, ] and supervisors.” (Id., at 69.) The VE noted that “less than occasional . . . is less than 33%, ” and that there would be “erosion in the number of jobs in that percentage decrease.” (Id.) He testified that, in his view, there would there be “no work” available “if we end up with at a percentage of . . . 20% or less with no contact with supervisors.” (Id.)
The ALJ then asked the VE to assume the same hypothetical person, except that, “instead of no exertional limitations[, ] we reduce it to the light [exertional] level, ” and asked whether jobs would then be available. (Id.) The VE responded that the job of price marker would remain available, and that the individual would also be able to do the job of a mail clerk and a photocopy machine operator. (Id., at 70.)
D. The Current Action and Motions Before the Court
Represented by counsel, Plaintiff filed a Complaint in this action on August 24, 2020. (Dkt. 1.) On June 1, 2021, Plaintiff moved for judgment on the pleadings (Dkt. 23), filing, in support of her motion, a memorandum of law (Plaintiffs Memorandum of Law in Support of Plaintiff s Motion for Judgment on the Pleadings, dated June 1, 2021 (“Pl. Mem.”) (Dkt. 24)). In her memorandum, Plaintiff argued that the ALJ's residual functional capacity (“RFC”) determination was not supported by substantial evidence, that the ALJ erred in assessing her credibility, and that the ALJ failed to develop the record. (See Pl. Mem., at 11-16.) Embedded in her argument that the ALJ failed to develop the record is also an argument that the ALJ improperly weighed the opinion evidence in the record. (See id, at 15-16.)
On July 7, 2021, Defendant filed a cross-motion for judgment on the pleadings (Dkt. 25), along with a supporting memorandum of law (Memorandum of Law in Support of Defendant's Cross-Motion and in Opposition to Plaintiffs Motion for Judgment on the Pleadings, filed July 7, 2021 (“Def Mem.”) (Dkt. 26)). Defendant argued that substantial evidence supported the ALJ's RFC finding, that the ALJ fulfilled his duty to develop the record, and that the ALJ properly evaluated Plaintiff's subjective complaints. (Def. Mem., at 11-24.) Defendant also asserted that the ALJ properly weighed the opinion evidence. (See id., at 13-16, 24.)
Plaintiff filed a reply memorandum on August 19, 2021. (Plaintiff's Reply in Support of Plaintiff's Motion for Judgment on the Pleadings, dated Aug. 18, 2021 (“Pl. Reply”) (Dkt. 27).) On reply, Plaintiff argued that the ALJ did not provide sufficient reasons for discounting Plaintiff's testimony. (See id., at 2.)
DISCUSSION
I.APPLICABLE LEGAL STANDARDS
A. Judgment on the Pleadings
Judgment on the pleadings under Rule 12(c) is appropriate where “the movant establishes ‘that no material issue of fact remains to be resolved, '” Guzman v. Astrue, No. 09cv3928 (PKC), 2011 WL 666194, at *6 (S.D.N.Y. Feb. 4, 2011) (quoting Juster Assocs. v. City of Rutland, 901 F.2d 266, 269 (2d Cir. 1990)), and a judgment on the merits can be made “‘merely by considering the contents of the pleadings, '” id. (quoting Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988)).
Judicial review of a decision of the Commissioner is limited. The Commissioner's decision is final, provided that the correct legal standards are applied and findings of fact are supported by substantial evidence. 42 U.S.C. § 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000).
B. The Five-Step Sequential Evaluation
To be entitled to disability benefits under the Act, a claimant must establish his or her “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); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). An individual is considered to be under a disability only if the individual's physical or mental impairments are of such severity that he or she is not only unable to do his or her previous work, but also cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(2)(A). In evaluating a disability claim, an ALJ must follow the five-step procedure set out in the regulations governing the administration of Social Security benefits. See 20 C.F.R. § 404.1520; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam).
The first step of the inquiry requires the ALJ to determine whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If not, at the second step, the ALJ determines whether the claimant has a “severe” impairment or combination of impairments that significantly limits his or her physical or mental ability to do basic work activities. Id. §§ 404.1520(a)(4)(ii), (c). If the claimant does suffer from such an impairment, then the third step requires the ALJ to determine whether this impairment meets or equals an impairment listed 20 C.F.R. Pt. 404, Subpt. P, App'x 1 (the “Listings”). Id. § 404.1520(a)(4)(iii). If it does, then the claimant is presumed to be disabled “without considering [the claimant's] age, education, and work experience.” Id. § 404.1520(d).
Where the claimant alleges a mental impairment, Steps Two and Three require the ALJ to apply a “special technique, ” outlined in 20 C.F.R. § 404.1520a, to determine the severity of the claimant's impairment at Step Two, and to determine whether the impairment satisfies Social Security regulations at Step Three. See Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). If the claimant is found to have a “medically determinable mental impairment, ” the ALJ must “specify the symptoms, signs, and laboratory findings that substantiate the presence of the impairment(s), ” then “rate the degree of functional limitation resulting from the impairment(s) in accordance with paragraph (c) of [Section 404.1520a], ” which specifies four broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence or pace; and (4) episodes of decompensation. 20 C.F.R. §§ 404.1520a(b), (c)(3); see Kohler, 546 F.3d at 265. The functional limitations for these first three areas are rated on a five-point scale of “[n]one, mild, moderate, marked, [or] extreme, ” and the limitation in the fourth area (episodes of decompensation) is rated on a four-point scale of “[n]one, ” “one or two, ” “three, ” or “four or more.” 20 C.F.R. § 404.1520a(c)(4).
Pursuant to 81 Fed.Reg. 66138-01 (S.S.A. Sept. 26, 2016), the SSA revised the criteria in the Listing of Impairments (the “Listing, ” 20 C.F.R. Pt. 404, Subpt. P, App. 1) used to evaluate claims involving mental disorders under Titles II and XVI of the Act, effective January 17, 2017. These revisions impacted various relevant portions of 20 C.F.R. §§ 404 and 416; see Brothers v. Colvin, No. 7:16cv100 (MAD), 2017 WL 530525, at *4 n.2 (N.D.N.Y. Feb. 9, 2017).
“Episodes of decompensation are exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence, or pace.” Morales v. Colvin, No. 13cv4302 (SAS), 2014 WL 7336893, at *8 (S.D.N.Y. Dec. 24, 2014) (quoting Kohler, 546 F.3d at 266 n.5).
If the claimant's impairment does not meet or equal a listed impairment, then the ALJ must determine, based on all the relevant evidence in the Record, the claimant's RFC, or ability to perform physical and mental work activities on a sustained basis. Id. § 404.1545. The ALJ then proceeds to the fourth step of the inquiry, which requires the ALJ to determine whether the claimant's RFC allows the claimant to perform his or her “past relevant work.” Id. § 404.1520(a)(4)(iv). Finally, if the claimant is unable to perform his or her past relevant work, the fifth step requires the ALJ to determine whether, in light the claimant's RFC, age, education, and work experience, the claimant is capable of performing “any other work” that exists in the national economy. Id. §§ 404.1520(a)(4)(v), (g).
C. Duty To Develop the Record
“Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record, ” Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)), and failure to develop the record may be grounds for remand, Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999); accord Craig v. Comm'r of Soc. Sec., 218 F.Supp.3d 249, 262 (S.D.N.Y. 2016) (noting that “[r]emand is appropriate where this duty is not discharged”). Indeed, “where there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history ‘even when the claimant is represented by counsel.'” Rosa, 168 F.3d at 79 (quoting Perez, 77 F.3d at 47).
“[I]f the documents received lack any necessary information, the ALJ should recontact the treating physician.” Oliveras ex rel. Gonzalez v. Astrue, No. 07cv2841 (RMB) (JCF), 2008 WL 2262618, at *6 (S.D.N.Y. May 30, 2008), report and recommendation adopted, 2008 WL 2540816 (June 25, 2008). The ALJ also has the authority to subpoena medical evidence on behalf of the claimant, 42 U.S.C. § 405(d), but is not required to subpoena medical records if they are not received following two ordinary requests, Gonell De Abreu v. Colvin, No. 16cv4892 (BMC), 2017 WL 1843103, at *5 (E.D.N.Y. May 2, 2017); 20 C.F.R. § 404.950(d)(1).
The SSA regulations further explain that a claimant's “complete medical history” means the records of his or her “medical source(s).” 20 C.F.R. § 404.1512(b)(1)(ii). If the information obtained from medical sources is insufficient to make a disability determination, or if the ALJ is unable to seek clarification from treating sources, the regulations also provide that the ALJ should ask the claimant to attend one or more consultative evaluations. Id. §§ 404.1512(b)(2), 404.1517.
The question of “[w]hether the ALJ has met his duty to develop the record is a threshold question. Before reviewing whether the Commissioner's final decision is supported by substantial evidence . . . the 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.” Craig, 218 F.Supp.3d at 261-62 (internal quotation marks and citations omitted); see also 42 U.S.C. § 405(g).
D. The Treating Physician Rule
Under the so-called “treating physician rule, ” the medical opinion of a treating source as to “the nature and severity of [a claimant's] impairments” is entitled to “controlling weight, ” where the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2). “Treating source” is defined as the claimant's “own physician, psychologist, or other acceptable medical source who . . . has provided [the claimant] with medical treatment or evaluation” and who has had “an ongoing treatment relationship” with him or her. Id. § 404.1502. Treating physicians' opinions are generally accorded deference because treating physicians “are likely to be the medical professionals most able to provide a detailed, longitudinal picture” of a claimant's condition and “bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations.” Id. § 404.1527(c)(2); see Taylor v. Barnhart, 117 Fed.Appx. 139, 140 (2d Cir. 2004) (Summary Order).
In accordance with Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 11 (Jan. 18, 2017), the treating physician rule, as described herein, is no longer be in effect for applications made to the SSA on or after March 27, 2017.
Where an ALJ determines that a treating physician's opinion is not entitled to “controlling weight, ” the ALJ must “give good reasons” for the weight accorded to the opinion. 20 C.F.R. § 404.1527(c)(2) . Failure to “give good reasons” is grounds for remand. Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004). Moreover, in determining the weight to be accorded to an opinion of a treating physician, the ALJ “must apply a series of factors, ” Aronis v. Barnhart, No. 02cv7660 (SAS), 2003 WL 22953167, at *5 (S.D.N.Y. Dec. 15, 2003) (citing, inter alia, 20 C.F.R. § 404.1527(d)(2) ), including: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including whether the treatment received was particular to the claimant's impairment; (3) the supportability of the physician's opinion; (4) the consistency of the physician's opinion with the record as a whole; and (5) the specialization of the physician providing the opinion, 20 C.F.R. §§ 404.1527(c)(2)-(5); see Shaw, 221 F.3d at 134 (noting that these five factors “must be considered when the treating physician's opinion is not given controlling weight”).
On February 23, 2012, the Commissioner amended 20 C.F.R. § 404.1527, by, among other things, removing paragraph (c), and re-designating paragraphs (d) through (f) as paragraphs (c) through (e).
Even where a treating physician's opinion is not entitled to “controlling weight, ” it is generally entitled to “more weight” than the opinions of non-treating and non-examining sources. 20 C.F.R. § 404.1527(c)(2); see SSR 96-2p (S.S.A. July 2, 1996) (“In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.”); see also Gonzalez v. Apfel, 113 F.Supp.2d 580, 589 (S.D.N.Y. 2000). A consultative physician's opinion, by contrast, is generally entitled to “little weight.” Giddings v. Astrue, 333 Fed.Appx. 649, 652 (2d Cir. 2009) (Summary Order) (internal quotation marks and citation omitted). This is because consultative examinations “are often brief, are generally performed without benefit or review of the claimant's medical history, and, at best, only give a glimpse of the claimant on a single day.” Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 55 (2d Cir. 1992) (internal quotation marks and citations omitted). The opinions of consultative physicians, though, “can constitute substantial evidence in support of the ALJ's decision” when the opinion of a claimant's treating physician cannot be obtained. Sanchez v. Commissioner of Social Sec., No. 15cv4914, 2016 WL 8469779, at *10 (S.D.N.Y. Aug. 2, 2016), report and recommendation adopted, 2017 WL 979056 (Mar. 13, 2017).
E. Assessment of a Claimant's Subjective Complaints
Assessment of a claimant's subjective complaints about his or her symptoms or the effect of those symptoms on the claimant's ability to work involves a two-step process. Where a claimant complains that certain symptoms limit his or her capacity to work, the ALJ is required, first, to determine whether the claimant suffers from a “medically determinable impairment[ ] that could reasonably be expected to produce” the symptoms alleged. 20 C.F.R. § 404.1529(c)(1). Assuming the ALJ finds such an impairment, then the ALJ must take the second step of “evaluat[ing] the intensity and persistence of [the claimant's] symptoms, ” considering “all of the available evidence, ” to determine “how [the] symptoms limit [the claimant's] capacity for work.” Id. § 404.1529(c)(1). In doing so, the ALJ must consider all of the available evidence, and must not “reject [ ] statements about the intensity and persistence” of the claimant's symptoms “solely because the available objective medical evidence does not substantiate [the claimant's] statements.” Id. § 404.1529(c)(2). Instead, where the claimant's contentions regarding his or her symptoms are not substantiated by the objective medical evidence, the ALJ must evaluate the claimant's statements in relation to the objective evidence and other evidence, in order to determine the extent to which the claimant's symptoms affect his or her ability to do basic work activities. Id. § 404.1529(c)(3)-(4); see also SSR 16-3p.
Effective on March 28, 2016, SSR 16-3p superseded SSR 96-7p, which had required the ALJ to make a finding on the credibility of the claimant's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms, where those statements are not substantiated by objective medical evidence. See SSR 96-7p (S.S.A. July 2, 1996). The new ruling, SSR 16-3p, eliminates the use of the term “credibility” from the SSA's sub-regulatory policy, in order to “clarify that subjective symptom evaluation is not an examination of an individual's character.” SSR 16-3p (S.S.A. Mar. 28, 2016). Instead, adjudicators are instructed to “consider all of the evidence in an individual's record when they evaluate the intensity and persistence of symptoms after they find that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms.” Id. Both the two-step process for evaluating an individual's symptoms and the factors used to evaluate the intensity, persistence and limiting effects of an individual's symptoms remain consistent between the two rulings. Compare SSR 96-7p with SSR 16-3p. As the ALJ's decision in this matter was issued after the new regulation went into effect, the Court will review the ALJ's evaluation of Plaintiff's statements regarding the intensity of her symptoms under the later regulation, SSR 16-3p.
While an ALJ is required to take a claimant's reports of his or her limitations into account in evaluating his or her statements, an ALJ is “not required to accept the claimant's subjective complaints without question.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). To the extent the ALJ determines that the claimant's statements are not supported by the medical record, however, the ALJ's decision must include “specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, ” and the reasons must be “clearly articulated” for a subsequent reviewer to assess how the adjudicator evaluated the individual's symptoms. SSR 16-3p. The factors that an ALJ should consider in evaluating the claimant's subjective complaints, where they are not supported by objective medical evidence alone, are: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medications taken to alleviate the symptoms; (5) any treatment, other than medication, that the claimant has received for relief of the symptoms; (6) any other measures that the claimant employs to relieve the symptoms; and (7) other factors concerning the claimant's functional limitations and restrictions as a result of the symptoms. See 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii).
II. THE ALJ'S DECISION
The ALJ issued his decision on May 2, 2019, finding that Plaintiff was not disabled for purposes of the Act and did not qualify for SSDI benefits. (R., at 13-23.) In rendering that decision, the ALJ applied the required five-step evaluation. (See id.)
A. Steps One Through Three of the Sequential Evaluation
At Step One, the ALJ determined that Plaintiff met the “insured status” requirements of the Act, and that she had not engaged in substantial gainful activity since September 27, 2015, the alleged disability onset date. (Id., at 15.)
At Step Two, the ALJ determined that Plaintiff had the severe impairments of bipolar disorder, depression, and alcohol disorder in early remission. (Id.) The ALJ determined that Plaintiff's hepatitis C, anxiety, and vertigo were non-severe. (Id.) The ALJ stated that, while Plaintiff had complained of anxiety, “there ha[d] been no formal diagnosis of anxiety by the [Plaintiff's] treating psychiatrist.” (Id., at 16.) The ALJ further stated that, while Plaintiff reported suffering from vertigo since 2013, a “CAT scan and MRI of the head did not show a tumor, ” and Plaintiff “reported that her vertigo [was] better with medications . . . .” (Id.) With regard to the hepatitis C, the ALJ merely said that Plaintiff “was diagnosed with Hepatitis C in November 2016, for which [she] [took] medications.” (Id.)
At Step Three, after considering Plaintiff's mental impairments and applying the required “special technique” for assessing such impairments (see Discussion, supra, at Section I(B)), the ALJ determined that Plaintiff did not have an impairment or combination of impairments that “m[et] or medically equal[ed] the severity of one of the listed impairments . . . .” (Id.) In making that finding, the ALJ determined that Plaintiff's mental impairments did not, as required, meet at least two of the four criteria set out in “Paragraph B” of Listing 12.04 (Depressive, bipolar and related disorders). (Id.) In particular, the ALJ determined that Plaintiff had a “mild” limitation in understanding, remembering, or applying information; a “moderate” limitation in interacting with others; a “moderate” limitation in concentrating, persisting, or maintaining pace; and a “moderate” limitation in adapting or managing herself. (Id., at 16-17.) The ALJ also determined that the “Paragraph C” criteria were not satisfied. (Id., at 17.)
A claimant meets the listing for depressive, bipolar, and related disorders (i.e., Listing 12.04), where she meets both the “paragraph A” and “paragraph B” criteria, or both the “paragraph A” and “paragraph C” criteria of those listings. To meet the “paragraph B” criteria under the Listing, a claimant would need to demonstrate an “extreme limitation” of one, or “marked limitation” of two, of the following areas of mental functioning: (1) understand, remember, or apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; (4) adapt or manage oneself. 20 C.F.R. Pt. 404, Subpt. P, App'x 1. An “extreme limitation” means the claimant is “not able to function in this area independently, appropriately, effectively, and on a sustained basis.” Id. A “marked limitation” means the claimant's “functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited.” Id. To meet the “paragraph C” criteria under the Listing, a claimant would need to demonstrate that the condition was “serious or persistent, ” namely, a medically documented history of the existence of the disorder over a period of at least two years, and evidence of both: (1) medical treatment, mental health therapy, psychosocial support, or a highly structured setting that is ongoing and that diminishes the symptoms and signs of the mental disorder; and (2) marginal adjustment, or minimal capacity to adapt to changes in his or her environment or to demands that are not already part of his or her daily life. Id.
B. The ALJ's Assessment of Plaintiff's RFC
The ALJ next determined that Plaintiff had the RFC to perform
[A] full range of work at all exertional levels but with the following nonexertional limitations: (1) never working at unprotected heights; (2) limited to performing simple, routine, and repetitive tasks and making simple work-related decisions; (3) to minimize stress, no production rate work or working in tandem with co-workers; and (4) limited to occasional interaction with co-workers, supervisors, and the general public.(Id., at 17-18.) In making this RFC determination, the ALJ found that Plaintiff's medically determinable impairments could “reasonably be expected to cause the alleged symptoms, ” but that Plaintiff's “statements concerning the intensity, persistence, and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record . . .” and that “the evidence generally [did] not support the alleged loss of functioning.” (Id., at 18.) The ALJ generally summarized the evidence of record and Plaintiff's various reports to her doctors, although he did not specify which evidence he found to be inconsistent with her reports. (See id., at 18-20.)
The ALJ then turned to the medical opinion evidence. The ALJ assigned “great weight” to Dr. Revan's opinion that Plaintiff had no limitations “with respect to speech, vision, hearing, fine and gross motor activity, sitting, walking, personal grooming, or activities of daily living, ” and “mild limitations with standing and lying down due to neck and back pain.” (Id., at 20.) The ALJ stated that Dr. Revan's opinion was supported by his “own physical examination, which revealed relatively benign findings, ” and was “consistent with the record, which shows no treatment for the [Plaintiff's] physical impairments.” (Id.)
The ALJ similarly assigned “great weight” to Dr. Phillips' opinion that Plaintiff had no limitations in “the ability to follow and understand simple directions and instructions; perform simple tasks independently; maintain attention and concentration; maintain a regular schedule; learn new tasks; and perform complex tasks independently, ” as well as to Dr. Phillips' opinion that Plaintiff was “moderately limited in the ability to make appropriate decisions; relate adequately with others; and appropriately deal with stress.” (Id., at 20-21.) The ALJ stated that Dr. Phillips' opinion was “consistent with and supported by the record as a whole, which show[ed] that [Plaintiff's] high stress situations of being forced to retire and being evicted led to her alcohol abuse.” (Id., at 21.)
The ALJ also assigned Dr. Harding's opinion “great weight.” (Id.) Dr. Harding opined that Plaintiff had “no more than moderate limitations” in the Paragraph B criteria, and that Dr. Harding “had access to the entire medical record and was familiar with the disability program.” (Id.)
The ALJ did not comment on the fact that the record included no opinion evidence from Plaintiff's treater, Dr. Galli. (See generally id.)
C. Steps Four and Five of the Sequential Evaluation
At Step Four, the ALJ concluded that Plaintiff was unable to perform her past relevant work as a police officer. (Id., at 21.)
At Step Five, in reliance on the testimony of the VE, the ALJ found that, considering Plaintiff's age, education, work experience, and RFC, there were jobs existing “in significant numbers in the national economy” that Plaintiff could perform. (Id., at 22.) The ALJ therefore concluded that Plaintiff had not been under a disability, as defined by the Act from September 27, 2015 through the date of his decision (May 2, 2019). (Id., at 23.)
III. REVIEW OF THE ALJ'S DECISION
Plaintiff makes several arguments as to why the case should be remanded for further proceedings. (See generally Pl. Mem.) While Plaintiff breaks out her arguments under three point headings - asserting (1) that the ALJ's RFC determination is not supported by substantial evidence (see Pl. Mem., at 11-13); (2) that the ALJ erred in assessing Plaintiff's credibility (see id., at 13-14); and (3) that the ALJ failed to develop the record (see id., at 14-16) - these headings do not accurately capture the nature of Plaintiff's contentions. In fact, the arguments Plaintiff is raising may be summarized as follows: (1) that the ALJ erred in failing to address the side effects from Plaintiff's medications; (2) that the ALJ failed to develop the record; and (3) that the ALJ violated the treating physician rule and improperly weighed the opinion evidence. For the reasons discussed below, this Court finds that the first two of these arguments have merit, although this Court cannot conclude that the ALJ's decision, based on the Record as it presently stands, reveals a treating-physician-rule violation.
A. In Formulating the RFC, the ALJ Failed To Account For the Reported Side Effects of Plaintiff's Medications.
Plaintiff asserts that the ALJ's RFC determination was not supported by substantial evidence because the ALJ failed to consider the side effects of Plaintiff's medications (Pl. Mem., at 12-13), and, more specifically, that the ALJ erred in evaluating Plaintiff's credibility with regard to her testimony about such side effects (id., at 13-14). On this point, Plaintiff highlights her testimony that her medications made her feel either sedated or “hyper” and “all over the place” (see Pl. Mem., at 6, 12), and argues that “[a] reasonable person would expect some limitations for being off-task or loss of concentration, ” if an individual had such symptoms (id., at 13). In response, Defendant contends that the ALJ was entitled to rely on the opinion of the psychiatric consultant, Dr. Phillips, with respect to the extent of Plaintiff's mental limitations, and, with particular reference to Plaintiff's complaints of feeling sedated, Defendant notes that “Plaintiff did not report to Dr. Phillips that her medication caused any sedation.” (Def. Mem., at 13 (citing R., at 313).)
“Social Security Rule 16-3p specifically requires proper consideration of the ‘type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms.'” Stella v. Comm'r of Soc. Sec., No. 19-CV-01751 (FB), 2020 WL 5369057, at *2 (E.D.N.Y. Sept. 8, 2020); see also 20 C.F.R. § 404.1529(c)(3)(iv). An ALJ's failure to consider a claimant's subjective reports of her symptoms, including the side effects she experiences as a result of her medications, is grounds for remand. See, e.g., Vinson v. Colvin, No. 6:15-CV-06006 (MAT), 2015 WL 8482783, at *5 (W.D.N.Y. Dec. 9, 2015) (ALJ erred when he “failed to include in his RFC the side-effects of th[e] medications to which Plaintiff testified . . . .”); Caternolo v. Astrue, No. 6:11-CV-6601 (MAT), 2013 WL 1819264, at *13 (W.D.N.Y. Apr. 29, 2013) (ALJ erred when he “failed to consider the side effects of Plaintiff's various medications in determining her RFC”).
Here, in testifying about her allegedly disabling symptoms, Plaintiff remarked that, if she had taken her medication that morning, she probably “wouldn't have made it” to the Hearing, seemingly because she would been sleeping too “deeply.” (R., at 54-55.) She also testified that her anxiety medication could make her unable to “calm down.” (Id., at 62.) These subjective complaints, as specifically related to Plaintiff's medications, were supported by at least some evidence in the Record. For example, regardless of whether Plaintiff reported to Dr. Phillips that her medication made her feel overly sedated, the Record reflects that Plaintiff did tell her treater, Dr. Galli, that the Seroquel she was taking was “too sedative, ” and that, even at a low dose, she would “sleep all night and feel sedated the next morning.” (R., at 300.) The Record also confirms that Plaintiff had been prescribed Seroquel (see, e.g., id.), and it is well-documented that this medication may reasonably be expected to produce her reported symptoms, see https://www.seroquelxr.com/ (manufacturer report that this medication has the known side effect of “sleepiness, drowsiness, feeling tired, [and] difficulty thinking and doing normal activities”). Plaintiff also testified that she sometimes felt “hyper” and “all over the place, ” and at least Buspirone, another medication that Plaintiff was prescribed (see, e.g., R., at 310) has the known side effects of “nervousness” and “excitement, ” see https://www.tevagenerics.com/product/buspirone-hydrochloride-tablets-usp. Defendant further points out that Plaintiff reported improvement of her symptoms when she stopped drinking, and suggests that this shows that “Plaintiff's major problem was her drinking and not the side-effects of any medication.” (Def. Mem., at 17.) Yet, even if Plaintiff's drinking had been causing symptoms, and even if those symptoms “improved” when she stopped drinking, it does not follow from this that she did not separately experience side effects from the medication that she was taking for, inter alia, her bipolar disorder.
Nothing in the ALJ's decision indicates that he considered the side effects of Plaintiff's medications when formulating her RFC (see R., at 13-23), and, certainly, the ALJ did not provide “specific reasons for the weight given” to Plaintiff's subjective complaints about those side effects, as required by SSR 16-3p (see Discussion, supra, at Section I(E)). In fact, nowhere in his decision did the ALJ even discuss any of the medications that Plaintiff was prescribed or address any of Plaintiff's statements about the sedative or other effects of her medication. (See generally id.) Rather, in dismissing Plaintiff's subjective complaints, the ALJ summarily concluded that her statements were “inconsistent because the evidence does not support the alleged loss of functioning” (id., at 19), without providing any examples or pointing to any specific evidence that contradicted Plaintiff's assertions (see generally id.). This was insufficient. See Morales v. Berryhill, 484 F.Supp.3d 130, 143 (S.D.N.Y. 2020) (“when discounting a claimant's credibility regarding his or her residual functional capacity, regulations impose some burden on the ALJ to explain his or her decision.”).
I therefore recommend that this case be remanded to the SSA for further proceedings, and that, upon remand, the ALJ be directed to evaluate the side effects of the medications Plaintiff was taking during the period at issue, specifically including Seroquel (which, as noted above, Plaintiff told Dr. Galli made her feel sedated), and to factor such evaluation into his formulation of Plaintiff's RFC. See Santiago v. Comm'r of Soc. Sec., No. 19cv4001 (KPF) (KNF), 2020 WL 6530884, at *7 (S.D.N.Y. May 5, 2020) (recommending remand where, inter alia, “[t]he ALJ committed legal error when he failed to consider . . . the side-effects of [Plaintiff's] medications in assessing [Plaintiff's] residual functional capacity”), report and recommendation adopted sub nom. Morales Santiago v. Comm'r of Soc. Sec., 2020 WL 4463157 (Aug. 3, 2020).
B. The ALJ Failed To Take Adequate Steps To Develop The Record.
Plaintiff also argues that the ALJ failed to develop the record because “the record includes only a small number of treatment records from Dr. Galli beginning in October 2016, ” and that, upon remand, “the ALJ should further develop the record regarding [Plaintiff's] mental impairments, including by obtaining a medical source statement from Dr. Galli or any other mental health provider.” (Pl. Mem., at 15-16.)
In the section of her memorandum where she makes this argument, Plaintiff devotes most of her attention to an alleged violation of the treating physician rule, which this Court will address infra, at Section II(C).
Defendant responds that the SSA “made an initial request for Plaintiff's records from Dr. Galli in November 2016 and a follow-up request in December 2016, ” and, therefore, that the SSA “complied with the regulatory requirement” to develop the record. (Def. Mem., at 19.) Defendant further points out that “the agency referred Plaintiff to a consultative examination with Dr. Phillips . . . in order to further develop the record regarding Plaintiff's mental impairment.” (Id.) Finally, Defendant notes that the ALJ asked Plaintiff's counsel at the Hearing whether the record was complete, and “Plaintiff's counsel responded that the record was complete, except for additional records from Dr. Galli that he was unable to obtain despite re-contact attempts because Dr. Galli had retired.” (Id., at 20 (citing R., at 42).) Based on this, Defendant contends that remanding the case with instructions to the ALJ to obtain either updated treatment records or a medical source statement from Dr. Galli “would be futile[, ] since Dr. Galli is no longer in practice.” (Id.)
With respect to her treatment records, this Court finds that Plaintiff has not shown that the Record was inadequately developed. As a threshold matter, Plaintiff has not even articulated which treatment records may be missing from those obtained from Dr. Galli. (See generally Pl. Mem.) In this regard, Plaintiff does not identify any visits she had with Dr. Galli for which clinical notes are missing, except to say in a footnote that “the record only includes medical records from Dr. Galli beginning in October 2016 . . . .” (Pl. Mem., at 16 n.2.) It appears, however, that Plaintiff only began seeing Dr. Galli in October 2016 (see R., at 292 (indicating that, on October 27, 2016, Dr. Galli saw Plaintiff for an intake appointment)), which suggests that there would not be any earlier records. While it is possible that later treatment records from Dr. Galli were missing from the Record, Plaintiff does not provide any basis from which this Court can draw that conclusion. In any event, an ALJ's duty to obtain treatment records is satisfied where the ALJ or the agency has made two requests obtain them, see Vasquez v. Saul, No. 16cv3610 (VSB) (DCF), 2019 WL 5682631, at *6 (S.D.N.Y. Nov. 1, 2019) (adopting report and recommendation) (noting that this is “all that the governing regulations require”), and, here, it appears that an SSA representative did request Dr. Galli's records on at least two occasions (see R., at 76-77).
Nonetheless, this Court finds troubling that the Record contains no opinion evidence from Dr. Galli, and specifically no function-by-function assessment of Plaintiff's mental impairments. “While the failure to request a function-by-function assessment is not per se grounds for a remand, . . . it is error for the ALJ to make [an RFC] determination based on medical reports that do not specifically explain the scope of the claimant's work-related capabilities.” Paterson v. Colvin, No. 12cv3020 (LTS) (JLC), 2014 WL 4419688, at *13 (S.D.N.Y. Sept. 9, 2014) (internal quotation marks and citations omitted), report and recommendation adopted, 2014 WL 4977493 (Oct. 3, 2014). Thus, to the extent the ALJ rested any part of his assessment of Plaintiff's work-related mental capacities on treatment records from Dr. Galli that did not discuss Plaintiff's functional limitations, it was error for the ALJ to have done so, without first seeking to clarify the doctor's opinions regarding such limitations. See Shafer v. Colvin, No. 16cv7941 (LAP) (SDA), 2018 WL 4233812, at *9 (S.D.N.Y. Feb. 15, 2018) (finding failure to develop the record, warranting remand, where, even though the ALJ had taken “multiple steps” to obtain a medical provider's treatment records, “the ALJ never sought [the treater's] opinion with respect to whether [the plaintiff] [was] disabled” (emphasis added)), report and recommendation adopted, 2018 WL 4232914 (Sept. 4, 2018).
Further, just because Dr. Galli's reported retirement may have made it difficult to obtain a functional assessment from her does not excuse the ALJ from his obligation to make the attempt, by sending a questionnaire to her last-known office address, and requesting that it be forwarded to her, if necessary. Cf. Shafer v. Colvin, No. 16cv07941 (LAP) (SDA), 2018 WL 4233812, at *9 (S.D.N.Y. Feb. 15, 2018) (“While the record shows that it was difficult to get [the doctor's] office to comply with the subpoena for medical records . . . it does not necessarily follow that [the doctor] would have refused to provide an opinion report or complete a questionnaire.”), report and recommendation adopted, 2018 WL 4232914 (Sept. 4, 2018). Nor was it sufficient for the ALJ to have relied on Plaintiff's counsel to try to obtain a medical source statement from Dr. Galli. See Carr v. Comm'r of Soc. Sec., No. 16cv5877 (VSB) (JCF), 2018 WL 3410012, at *3 (S.D.N.Y. July 12, 2018) (“[A]n ALJ cannot merely rely on requests of counsel to obtain records to fulfill the duty to investigate and develop the record.”).
In sum, where the Record contained no functional assessment of Plaintiff's mental impairments by any treating source, and where Plaintiff was known to have had received psychiatric treatment from Dr. Galli, this Court finds that the ALJ should have made at least one directed attempt to obtain such an assessment from Dr. Galli, and that his failure to do so constituted a failure to develop the record. Accordingly, on remand, I respectfully recommend that the ALJ be directed to request a functional assessment of Plaintiff's mental limitations from Dr. Galli.
C. While the ALJ Did Not Err in Applying the Treating Physician Rule, Any Opinion That May Be Obtained From Dr. Galli on Remand Should Be Properly Weighed.
Finally, Plaintiff argues that the ALJ violated the treating physician rule, which applied to Plaintiff's application for benefits, given that it was filed prior to March 27, 2017. (See R., at 28 (indicating that Plaintiff filed her application on October 25, 2016), see also supra, at n.9.) In particular, Plaintiff asserts that the ALJ erred by assigning “great weight” to Dr. Harding's opinion “that was based solely on his review of the record, ” where, as described by Plaintiff, the Record “include[d] only a small number of treatment records from Dr. Galli beginning in October 2016.” (Pl. Mem., at 15.) Plaintiff further asserts that “it is improper to rely on the opinion of a non-treating, non-examining doctor because the inherent subjectivity of a psychiatric diagnosis requires the physician rendering the diagnosis to personally observe the patient” (id. (citing Abate v. Comm'r of Soc. Sec., 2020 U.S. Dist. LEXIS 78164, *10-12 (E.D.N.Y. May 4, 2020))). Plaintiff argues that “[t]he ALJ further erred by assigning ‘great weight' to the opinion of consulting examiner Dr. Phillip, who only examined [Plaintiff] one time.” (Id., at 16.)
Defendant, on the other hand, notes that the Second Circuit has found that the opinions of consultative examiners and non-examining sources may be used to support an ALJ's decision. (See Def. Mem., at 13-15 (citing Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983); Lamond v. Astrue, 440 Fed.Appx. 17, 21-22 (2d Cir. 2011) (Summary Order); Petrie v. Astrue, 412 Fed.Appx. 401, 405 (2d Cir. 2011) (Summary Order); Camille v. Colvin, 652 Fed.Appx. 25, 28 (2d Cir. 2016)). Defendant also argues that the ALJ “found that [] Dr. Phillips's opinion was consistent with the February 2017 opinion of Dr. Harding . . . .” (id., at 14), and that both opinions were consistent with the record as a whole (id., at 16), with the “unremarkable mental status findings of Dr. Revan” (id.), and with the “largely unremarkable findings of Dr. Galli” (id.).
Both parties' arguments are somewhat beside the point. On the Record as it currently stands, it cannot be said that the ALJ violated the treating physician rule because the ALJ did not actually have an opinion from a treating physician to evaluate. As set out above, the treating physician rule dictates that the opinion of a treating physician must be accorded “controlling” weight, or, at a minimum, greater weight than the opinions of consulting examiners, unless the ALJ sets out good reasons to discount the treater's opinion. (See Discussion, supra, at Section I(D).) In other words, the rule governs the weight that should be accorded to the medical opinions of the plaintiff's treating physicians relative to the other medical opinions in the record. See Schisler v. Heckler, 787 F.2d 76, 81 (2d Cir. 1986); see also Otanez v. Colvin, No. 14cv8184 (KPF), 2016 WL 128215, at *9 (S.D.N.Y. Jan. 12, 2016) (“[w]hen assigning relative weight to various opinions from medical professionals, both the SSA and the Second Circuit adhere to a treating physician rule . . . .” (emphasis added)). Absent a medical source statement from Dr. Galli, there was no way for the ALJ to weigh that opinion against the other medical opinion evidence in the Record, and, hence, on the present Record, the treating physician rule simply did not come into play.
It should go without saying, however, that, if the ALJ is able to obtain a medical opinion from Dr. Galli on remand, then the ALJ should be required to give proper weight to that opinion and to re-evaluate the other opinion evidence in the Record, in accordance with the treating physician rule.
CONCLUSION
For all of the foregoing reasons, I respectfully recommend that Plaintiff's motion for judgment on the pleadings (Dkt. 23) be granted and the matter remanded for further proceedings, and that Defendant's cross-motion for judgment on the pleadings (Dkt. 25) be denied. I further recommend that, upon remand, the ALJ be directed:
(1) to consider the side effects of Plaintiff's medications in formulating her RFC;
(2) to take steps to develop the Record by requesting a medical source statement (with a function-by-function assessment of Plaintiff's work-related mental capacities) from her prior psychiatric treater, Dr. Galli; and
(3) if successful in obtaining opinion evidence from Dr. Galli, to comply with the treating physician rule, in determining
how much weight to accord that opinion, relative to the other medical opinion evidence in the Record.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres, United States Courthouse, 500 Pearl Street, New York, New York 10007, if her Individual Practices require such courtesy copies. Any requests for an extension of time for filing objections must be directed to Judge Torres. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).