Opinion
22-cv-09100 (MKV) (SDA)
01-08-2024
Christian Nunez, Plaintiff, v. Commissioner of Social Security, Defendant.
TO THE HONORABLE MARY KAY VYSKOCIL, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE:
Plaintiff Christian Nunez (“Plaintiff” or “Nunez”) brings this action pursuant to Section 205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the “Commissioner”) that denied his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Compl., ECF No. 1.) Presently before the Court are the parties' cross-motions, pursuant to Federal Rule of Civil Procedure 12(c), for judgment on the pleadings. (Pl.'s Mot., ECF No. 13; Comm'r Cross-Mot., ECF No. 20.)
For the reasons set forth below, it is respectfully recommended that Plaintiff's motion for judgment on the pleadings be GRANTED and the Commissioner's cross-motion be DENIED.
BACKGROUND
I. Procedural Background
On February 9, 2018, Nunez filed applications for DIB and SSI, with an alleged disability onset date of June 15, 2015. (Administrative R. (“R.”), ECF No. 12, at 20, 85.) The Social Security Administration (“SSA”) denied his applications on July 2, 2018, and, thereafter, Nunez filed a written request for a hearing before an Administrative Law Judge (“ALJ”). (R. 101-18.) On October 11, 2019, Nunez appeared for a hearing before ALJ Mark Solomon. (R. 31-69, 1041-71.) Nunez was represented at the hearing by attorney Anselmo Alegria. (R. 32, 1043.)
Nunez previously had applied for benefits which application was denied in 2016. (See R. 10.)
In a decision dated December 19, 2019, ALJ Solomon found Nunez not disabled. (R. 20.) On January 23, 2020, Nunez requested review of the ALJ's decision from the Appeals Council. (R. 4-5, 183-85.) The Appeals Council denied his request on September 28, 2020. (R. 1.) Nunez filed an appeal with the District Court for the Southern District of New York on November 24, 2020. See Nunez v. Kijakazi, No. 20-CV-09883 (GBD) (BCM), ECF No. 1. On December 13, 2021, United States District Judge George B. Daniels entered a Stipulation and Order remanding the case to the SSA for further proceedings. (R. 1097-98.) On January 28, 2022, the Appeals Council vacated the December 19, 2019 hearing decision and remanded the case to the ALJ. (See R. 1103-04.)
On June 10, 2022, Nunez appeared for a second hearing before ALJ Solomon. (R. 102140.) Nunez was represented at the hearing by attorney Alegria. (R. 1024.) In a decision dated June 29, 2022, ALJ Solomon again found Nunez not disabled. (R. 981-1020.) Nunez filed no exceptions to the ALJ's decision and the Appeals Council did not assume jurisdiction. Accordingly, ALJ Solomon's June 29, 2022 decision became the final decision of the Commissioner sixty-one days later. See 20 C.F.R. §§ 404.984, 416.1484. This action followed.
II. Non-Medical Evidence
Born on November 10, 1992, Nunez was 22 years old on the alleged onset date and 29 years old at the time of the second hearing. (R. 86, 131.) Nunez completed high school and two years of college. (R. 18, 97.) He has past work experience as a sales associate, cashier and senior intern. (R. 81-82, 97, 229, 248, 785, 787.)
III. Medical Evidence Before The ALJ
The Court summarizes the medical evidence beginning in June 2015, given the alleged onset date of June 15, 2015. Because Plaintiff does not challenge the ALJ's findings with respect to any physical impairments, the Court focuses on medical evidence regarding Plaintiff's mental impairments.
A. June 2015 To March 2016 Treatment Records
On June 10, 2015, Nunez completed an intake appointment with Julisa Checo, MSW (“MSW Checo”) at the Fordham-Tremont Mental Health Center (“FTMHC”).(R. 498.) Nunez reported feeling sad, lack of motivation, angry and “very frustrated” for the past three years. (Id.) Nunez noted that these symptoms recently had worsened due to a job loss. (Id.) Nunez also relayed that his relationship issues with his mother and her husband contributed to his symptoms. (Id.) He reported starting psychiatric treatment in 2014 after a month-long hospitalization at Jacobi Hospital for psychosis. (Id.) Nunez admitted to current marijuana use, as well as previous use of “different pills.” (Id.) Nunez reported having friends and “socializ[ing] well with others.” (Id.) On mental status examination, Nunez was cooperative with average eye contact and normal perception, thought process, insight and judgment. (R. 499.) MSW Checo provisionally diagnosed Major Depressive Disorder, single episode, mild and noted under “Initial Plan” that Nunez wanted to talk to someone to feel better about himself. (Id.) MSW Checo also began a Comprehensive Psychosocial Assessment, which she completed during a follow-up appointment on June 19, 2015. (R. 500-08; see also R. 321-23, 407-09, 493-94.)
Nunez previously had received mental health treatment at FTMHC from approximately July 2014 through November 2014. (R. 512-62.)
On June 29, 2015, Eva Febus, LCSW-R, admitted Nunez to the Community Recovery Services Plan, noting that Nunez would benefit from individual/group/family therapy focusing on decreasing symptoms and increasing coping mechanisms. (R. 495.) Daniel Rodriguez, LMSW (“LMSW Rodriguez”) was assigned Nunez's case. (R. 496.)
On July 6, 2015, LMSW Rodriguez saw Nunez for his first therapy session. (R. 320-21, 40607, 484.) LMSW Rodriguez noted Nunez's diagnosis as psychosis. (R. 320.) Nunez reported that he returned to treatment because he felt “ready now.” (Id.) Nunez also reported having problems with his mother, feeling a bit overwhelmed with school and wanting to understand his diagnosis and what he could do to get better. (Id.) Nunez agreed to start with weekly therapy sessions and eventually move to bi-weekly sessions and to schedule a psychiatric evaluation to determine if he needed to take medication. (R. 321.)
Nunez missed an appointment scheduled for August 12, 2015, and next saw LMSW Rodriguez on September 25, 2015. (R. 318-20, 404-06, 482-83, 486, 605-07.) Nunez reported that he had recently gone to the Emergency Department because of continued issues with his mother. (R. 319.) His cousin, who sometimes acted as a “mediator” between Nunez and his mother, attended the therapy session and described Nunez as “sometimes being withdrawn, staying to himself and [using] marijuana.” (Id.) Nunez admitted that marijuana use contributed to the problem with his mother, and they discussed generational and cultural differences and lack of communication as additional factors. (Id.) LMSW Rodriguez noted that Nunez was taking medication and “doing better” and that he agreed to come to sessions more consistently. (Id.)
On October 2, 2015, Nunez had a therapy session with LMSW Rodriguez. (R. 317-18, 40304, 480-81, 604-05.) Nunez reported that he felt good and was working part time. (R. 317.) LMSW Rodriguez noted that there were no significant changes in Nunez's mood, affect, appearance or behavior. (Id.) They discussed family dynamics, and LMSW Rodriguez noted that Nunez was receptive and wanted to work on improving his relationship with his mother. (R. 317-18.)
On October 9, 2015, Nunez again saw LMSW Rodriguez for his weekly session. (R. 315-17, 401-03, 478-79, 602-04.) Nunez reported that he had to leave his job at the sneaker store because he had a run in with the manager. (R. 316.) Nunez reported that he left the store without losing his temper and intended to find a new job. (Id.) Nunez asked if his mother could join the next session because he wanted to reconcile with her and possibly move back home. (Id.) LMSW Rodriguez noted that there were no significant changes in Nunez's mood, affect, appearance or behavior. (Id.)
On the evening of October 13, 2015, Nunez was taken to the St. Barnabas Hospital Emergency Department after his mother called 911 to report that he was mixing drugs and psychiatric medication, was getting into trouble and made a homicidal statement. (R. 309-15, 457-75.) On mental status examination, the triage nurse noted that Nunez appeared calm but uncooperative and placed him on security watch. (R. 461.) Matthew Friedman, D.O., evaluated Nunez and ordered a psychiatry consult. (R. 314, 400, 465.)
During the psychiatry consult, Andrew O'Hagan, M.D., spoke with Nunez's mother, who reported that Nunez had made verbal threats, become irritable and become briefly disorganized.
(R. 311.) On review of Nunez's chart, Dr. O'Hagan noted that Nunez had a history of minimizing events and denying anything was wrong with him. (Id.) Dr. O'Hagan noted that Nunez appeared compliant with his medication. (Id.) On mental status report, Dr. O'Hagan found that Nunez was well-groomed and calm with full affect, but limited insight and limited judgment. (R. 311-12.) Dr. O'Hagan's impression was psychotic disorder and cannabis use disorder. (R. 312.) He noted that, at the time, there was no demonstrable suicidal or homicidal ideation or acute impairment in activities of daily living that would necessitate psychiatric admission and noted that Nunez would best benefit form outpatient care. (Id.) Dr. O'Hagan concluded that Nunez could be psychiatrically cleared and indicated that he would email Nunez's providers at FTMHC regarding recommended addiction treatment at Bronx Lebanon Life Recovery Center. (Id.) Dr. Freidman discharged Nunez home with instructions to follow up at FTMHC and Bronx Lebanon Life Recovery Center. (R. 472.)
On October 16, 2015, Nunez had a therapy session with LMSW Rodriguez. (R. 370-71, 455 56.) Nunez reported that he was feeling better and that he “attribute[d] [the recent hospitalization] to conflict with his mother.” (R. 370.) Nunez understood that he needed to stay on medication to avoid/eliminate depressive symptoms and agreed to reduce his marijuana consumption to improve his relationship with his mother. (R. 370-71.)
On October 21, 2015, Nunez's mother contacted LMSW Rodriguez following an argument between her and Nunez regarding his continuous smoking. (R. 307-09, 393-401, 432-54.) LMSW Rodriguez then spoke with Nunez who relayed that he did not feel safe at home but “could not elaborate about what he meant . . . and appeared to be confused.” (R. 308, 394, 443.) At LMSW Rodriguez's suggestion, Emergency Medical Services (“EMS”) brought Nunez to the St. Barnabas Emergency Department for treatment. (R. 443.) At the emergency department, Nunez reported that he had not taken his morning dose of Seroquel and reported smoking approximately two blunts of marijuana per day. (R. 349, 439-40, 477.) Michael Nickas, D.O. and Fanny Mantilla, D.O. assessed Nunez and recommended a psychiatric consult followed by revaluation. (R. 439-42.)
On October 21, 2015, Jean Robert Jacques, M.D., assessed Nunez for a psychiatric consultation. (R. 308-09, 394-95, 445-47.) On mental status examination, Dr. Jacques noted that Nunez appeared calm with appropriate affect and limited insight and judgment. (R. 308-09.) Dr. Jacques further noted that Nunez reported sleep disturbances. (R. 308.) Dr. Jacques diagnosed bipolar disorder by history and cannabis use disorder. (R. 309.) He recommended that Nunez continue taking Seroquel and psychiatrically cleared him for discharge with a plan to follow up with his psychiatrist. (Id.)
On October 23, 2015, Nunez had his next therapy session with LMSW Rodriguez. (R. 30507, 391-93, 429-31.) Nunez reported that within the last week he had felt confused and did not know which medication to take. (R. 306, 392, 429.) At the time of the visit, he felt better and reported medication adherence. (Id.)
On October 30, 2015, Nunez saw Pablo Ibanez, M.D., for psychiatric evaluation. (R. 30205, 388-90, 424-27.) Nunez complained of problems focusing but stated he was not currently feeling depressed. (R. 302.) He also denied past suicide attempts or ever experiencing psychotic symptoms, but his mother informed Dr. Ibanez that Nunez previously was diagnosed with psychosis and possible schizophrenia. (R. 302-03.) According to his mother, Nunez's psychotic symptoms stopped for approximately a year when he quit smoking marijuana but returned when he began smoking again. (R. 303.) Nunez admitted consuming marijuana one-to-two times per day. (Id.) On mental status examination, Dr. Ibanez noted that Nunez had average but intense eye contact and a guarded and minimizing attitude. (R. 304.) Dr. Ibanez also noted constricted affect, intact memory and concentration, normal insight, good impulse control and fair judgment. (Id.) Dr. Ibanez diagnosed Nunez with psychosis and increased his Seroquel prescription. (R. 305.)
On November 6, 2015, Nunez called LMSW Rodriguez to cancel his appointment. (R. 428.) Nunez reported that he was doing well, looking for work and getting along better with his mother. (Id.) During his appointment with LMSW Rodriguez the following week, on November 13, 2015, Nunez agreed to reduce his marijuana consumption. (R. 298, 384-85, 422-23.) The same day, Nunez saw Dr. Ibanez for a follow-up appointment. (R. 299-302, 385-88, 418-21.) Nunez reported that he was feeling fine, looking for work and sleeping “fine.” (R. 299.) Dr. Ibanez's mental status examination findings were the same as the prior visit. (R. 301.) When asked about his marijuana use, Nunez stated that he used it “no more than 3 times daily.” (R. 299.) Dr. Ibanez noted under Nunez's psychosis diagnosis a plan to rule out substance abuse disorder versus primary psychotic disorder. (R. 301.) Dr. Ibanez educated Nunez on the effects of marijuana, including marijuana induced psychosis. (R. 302.) Dr. Ibanez advised Nunez to abstain from smoking marijuana or using other intoxicating drugs and noted his next appointment was in four weeks. (Id.)
On December 4, 2015, Nunez saw LMSW Rodriguez for his weekly therapy sessions. (R. 296-99, 382-83, 416-17.) Nunez reported no psychiatric symptoms after reducing marijuana consumption. (R. 297.) He further reported that he felt better with himself and less confused. (Id.)
On December 10, 2015, Nunez saw Dr. Ibanez for a follow-up appointment. (R. 293-96, 379-82, 412-18.) Nunez reported that he was feeling stable and more active, looking for work and sleeping well. (R. 293.) With respect to marijuana use, Nunez reported that he did not really feel like he needed it, but used it “every once in a while.” (R. 293-94.) On mental status examination, Dr. Ibanez noted that Nunez was well groomed with average but intense eye contact, and had a guarded and minimizing attitude, mood congruent affect, intact memory and concentration, normal insight and fair impulse control and judgment. (R. 294-95.) The next day, Nunez told LMSW Rodriguez during a therapy session that his relationship with his mother was improving and that he was getting better at responding appropriately. (R. 292-93, 378-79, 41011.)
On January 8, 2016, Nunez had his weekly therapy session with LMSW Rodriguez and reported that he was feeling better and thinking more clearly without confusion, which he attributed to his adherence to medication and less pressure at home. (R. 773-74.) Nunez reported smoking marijuana but stated that he had reduced consumption to once per day. (R. 773.) A few days later, on January 11, 2016, Nunez had an appointment with Dr. Ibanez and informed Dr. Ibanez that he wanted to stop taking his medication because he “doesn't need it and . . . feel[s] like [he] was [mis]diagnosed.” (R. 768.) Nunez admitted to consuming marijuana once per day and agreed to reduce his consumption. (Id.) Dr. Ibanez's mental status examination findings were the same as his prior visit. (R. 769-70.)
On January 19, 2016, Nunez missed an appointment with LMSW Rodriguez due to “other obligations” but returned for his weekly appointment on January 25, 2016. (R. 765-67.) Nunez reported that he was doing “ok” but expressed being sad and began tearing up when discussing following his dreams in the music industry and his mother's disapproval of the company he keeps. (R. 765.) Nunez admitted to marijuana consumption but said he was reducing his consumption. (Id.) Nunez also reported adherence to his medication and lack of psychotic symptoms. (Id.)
During his next session on February 2, 2016, Nunez reported doing well with no psychotic symptoms, although he was using marijuana daily. (R. 368-70, 763-64.)
On February 9, 2016, Nunez had a follow-up appointment with Dr. Ibanez. (R. 365-68, 757-60.) Nunez reported consuming marijuana one-to-three times per day and feeling “pretty happy” with a positive outlook. (R. 366.) A mental status examination was the same as his prior visit. (R. 366-67.) Dr. Ibanez noted his next appointment was scheduled in four weeks. (R. 368.)
On February 12, 2016, Nunez did not show up to his appointment with LMSW Rodriguez but saw him again the following week on February 19, 2016. (R. 364-65, 754-55, 762) Nunez reported feeling good, taking his medications and daily marijuana consumption. (R. 364.)
On February 26, 2016, Nunez's mother reported to LMSW Rodriguez that Nunez had been missing for three days and had sent strange text messages to his sister. (R. 756.) Nunez later returned home and admitted he had not eaten or taken his medication. (R. 743.) LMSW Rodriguez strongly advised Nunez's mother to take him to the hospital for an assessment. (Id.)
Nunez did not appear for his next therapy appointment on February 29, 2016. (R. 744.) His mother called and reported that he was not complying with his medications and that he may have taken seven pills the night prior. (Id.) She also reported that Nunez could not walk and that he fell on his way to the bathroom. (Id.) Dr. Ibanez advised Nunez's mother to call 911 right away and have him evaluated. (Id.) The following day, Elizabeth Pena-Franqui, LCSW-R (“LCSW-R Pena-Franqui”) called Nunez's home and spoke to his mother who reported that she had not taken him to the hospital because he refused to go voluntarily and seemed to be feeling better. (R. 745.) LCSW-R Pena-Franqui then spoke to Nunez who admitted that he did take more than one pill but stated that he did so because he could not sleep. (Id.)
On or about March 7, 2016, LMSW Rodriguez made a Mobile Crisis Referral after Nunez failed to keep his appointments. (R. 747, 749; see also R. 748.) On March 9, 2016, LMSW Rodriguez called Nunez who reported that he was doing “alright.” (R. 751.) On March 11, 2016, Nunez again did not show up for his therapy appointment. (R. 727-28.) On March 15, 2016, LMSW Rodriguez spoke with Nunez, who reported that he did not feel like going to the clinic and was currently compliant with his medications. (R. 730.)
B. March 2016 Hospitalization - Bronx Lebanon Hospital
On March 22, 2016, Nunez was admitted to Bronx Lebanon Hospital, where he remained as an inpatient until March 26, 2016. (R. 735-36, 1201, 1370-71.) He was brought to the Emergency Department by EMS due to aggressive behavior. (R. 733, 1213, 1372.) Upon examination by Rouzi Shengelia, M.D., Nunez was unkempt, malnourished and moody with poor eye contact; a defensive, guarded and uncooperative attitude; an angry, anxious and stressed mood; tearful and depressed affect; no delusions; severely impaired judgment; and poor insight and impulse control. (R. 1212-16.) Dr. Shengelia found that Nunez's suicide risk level was low and that his violence risk level was moderate. (R. 1212, 1214-15.) Dr. Shengelia diagnosed Nunez with psychosis, panic disorder and post-traumatic stress disorder, and admitted Nunez for treatment. (R. 1215.) Nunez was put on close observation. (R. 1382-84, 1389.)
On mental status examination, Nunez presented with a labile mood, cooperative behavior, blunted affect, goal directed thought process and distrustful. (R. 1399.) On March 24, 2016, Nunez saw Rajesh Patel, M.D. (R. 1403-07.) Nunez's mental status examination was unchanged. (R. 1405.) Dr. Patel ordered close assessment at 15-minute intervals and provided Nunez with albuterol for asthma. (R. 1399, 1402-03, 1407.) On March 26, 2016, Nunez saw Ifeoma Nwugbana, M.D. (R. 1204, 1414.) Nunez reported that the altercation leading to his current admission was a result of a dispute over a laptop. (R. 1201, 1415.) When he attempted to grab the laptop from his mother, she fell. (Id.) His stepfather then grabbed him by the neck to restrain him. (Id.) Nunez's sister confirmed this report. (Id.) Dr. Nwugbana reported that Nunez began medication and remained calm, acting appropriately and not exhibiting aggressive behavior. (Id.) Dr. Nwugbana diagnosed Nunez with psychosis and cannabis use and prescribed albuterol, sertraline, diphenhydramine and quetiapine. (R. 1203-04, 1417.) Nunez was discharged on March 26, 2016, with no psychotic symptoms. (R. 1418-19.)
C. April Through July 2016 Treatment Records
On April 22, 2016, Nunez saw Dr. Ibanez for medication management. (R. 361-63, 720-22.) Nunez reported that he was feeling depressed and complained of difficulty concentrating, which he believed might have been Attention-Deficit/Hyperactivity Disorder (“ADHD”). (R. 361.) On mental status examination, Dr. Ibanez noted average eye contact; cooperative yet irritable attitude; anxious and depressed mood; mood congruent affect; intact memory, attention and concentration; and fair impulse control and judgment. (R. 362-63.) Nunez complained that Seroquel helped him sleep but did not affect his mood symptoms, so Dr. Ibanez prescribed Latuda instead. (R. 361-62.) Nunez also was seen by LMSW Rodriguez. (R. 724.) Nunez denied psychotic symptoms but acknowledged that he had a lot of things to work on. (Id.)
On May 6, 2016, Nunez saw LMSW Rodriguez for a therapy appointment and reported doing much better. (R. 359-61, 717-18.) He was residing with his father and grandmother and doing “ok” there and was looking for employment. (R. 359.) Nunez reported that he was taking Latuda but did not feel a significant difference with the new medication. (R. 360.)
Nunez saw LMSW Rodriguez for his next therapy session on May 13, 2016. (R. 358-59, 714-15.) Nunez reported decreased grogginess and an increase in alertness on Latuda. (R. 358.) LMSW Rodriguez noted that Nunez appeared to be in a better mood, more motivated and more goal-oriented than last session. (R. 359.) During his next session, on May 20, 2016, Nunez reported “feeling much better emotionally[,] not as overwhelmed as he had been feeling in the past.” (R. 356-57, 709.) Nunez reported adherence to Latuda, and LMSW Rodriguez noted that Nunez continued to do well. (R. 356-57.) On May 23, 2016, Nunez did not show up for his appointment with Dr. Ibanez. (R. 712.)
On May 27, 2016, Nunez saw LMSW Rodriguez for a therapy session. (R. 351-52, 704-05.) Nunez reported that he had run out of medication and felt overwhelmed as a result of helping his neighbor with an eviction, but denied any psychotic symptoms. (R. 351-52.) The same day, Jeanette Martir, LCSW-R, noted that Nunez was on high-risk status and would be seen on standby for a medication refill. (R. 713.) Nunez then saw Dr. Tahir Kahn to discuss medication management. (R. 353-56, 700-03.) Nunez reported adherence to Latuda with some daytime sedation but less than when he was on Seroquel. (R. 353.) He also reported irritability but denied overt depression. (Id.) On mental status examination, Dr. Kahn reported average eye contact; cooperative yet irritable attitude; anxious and depressed mood; mood congruent affect; intact memory, attention and concentration; and fair impulse control and judgment. (R. 354.)
On June 17, 2016, Nunez had his next therapy session with LMSW Rodriguez. (R. 349-50, 698-99.) Nunez reported that he had stopped taking his medications but was doing well and not experiencing psychotic symptoms. (R. 350, 698.) On June 27, 2016, Nunez did not show up for an appointment with Dr. Ibanez. (R. 694.) Nunez saw LMSW Rodriguez again on July 1, 2016. (R. 348-49, 692-93.) Nunez reported no “major difference since stopping the medication but stated he had been having dreams that make no sense to [him].” (R. 348.)
On July 15, 2016, Nunez did not show up for another appointment with Dr. Ibanez. (R. 691.) That day, Nunez's psychiatric treatment team completed a treatment plan review. (R. 688.) His providers wrote that Nunez's attendance continued to be poor. (Id.) He had kept only a few of his individual session appointments and only saw his psychiatrist once during the review period. (Id.) A few days later, on July 18, 2016, Nunez showed up for a therapy session with LMSW Rodriguez. (R. 346-47, 678-79.) Nunez reported doing better but questioned whether the fact that he sometimes saw images, like holograms, while listening to music was a symptom of psychosis. (R. 346-47.) If so, Nunez said that he would consider taking medication again. (R. 347.)
On July 22, 2016, LMSW Rodriguez and Dr. Ibanez reviewed Nunez's treatment plan. (R. 671-73.) LMSW Rodriguez noted that Nunez was continuing to miss appointments and refused to take medication. (R. 671.) The treatment plan listed Nunez's problems based on a 10-point scale of severity as the following: lack of motivation and sad - 8, family conflict - 10 and substance abuse - 8. (R. 672.) On July 29, 2016, Nunez failed to show up for his appointment with Dr. Ibanez. (R. 670.)
D. July 25, 2016 Psychiatric Consultative Examination - Haruyo Fujiwaki, Ph.D.
Nunez saw Haruyo Fujiwaki, Ph.D. for a psychiatric consultative examination on July 25, 2016. (R. 335-38.) Nunez reported normal sleep; loss of appetite; depressive symptomatology, including dysphoric mood, loss of energy and concentration difficulties; panic attacks with palpitations, breathing difficulties and blurred vision. (R. 335.) He also reported that he was not currently taking medication. (Id.) Nunez reported that he smoked marijuana from 2010 until 2014 but denied any current drug use. (R. 336.) He also denied suicidal or homicidal ideation and noted that his last experience with suicidal ideation was two years ago. (R. 335.)
On mental status examination, Dr. Fujiwaki found that Nunez's overall manner of relating, social skills and overall presentation were somewhat withdrawn. (R. 336.) Dr. Fujiwaki noted that Nunez had appropriate eye contact; mildly dysphoric affect; mildly dysthymic mood; intact memory, attention and concentration; good insight; fair judgment; and no evidence of hallucinations, delusions or paranoia. (R. 336-37.) Dr. Fujiwaki also noted that Nunez could take public transportation himself, cleaned and laundered once per week and cooked twice per week. (R. 337.) Dr. Fujiwaki opined that Nunez was able to follow and understand simple directions and instructions, perform simple tasks independently, maintain attention and concentration, maintain a regular schedule, learn new tasks, perform certain complex tasks independently and make appropriate decisions. (R. 337-38.) He further opined that Nunez was “mildly to moderately limited in relating adequately with others and appropriately dealing with stress.” (R. 338.)
Dr. Fujiwaki diagnosed Nunez with unspecified depressive disorder, unspecified anxiety disorder, unspecified schizophrenia spectrum and other psychotic disorder, cannabis use disorder in sustained remission; found that Nunez's prognosis was fair; and suggested he continue with his current treatment. (R. 337-38.)
E. August To December 2016 Treatment Records
LMSW Rodriguez and Dr. Ibanez reviewed Nunez's treatment plan on August 1, 2016. (R. 671, 673.) LMSW Rodriguez noted that Nunez continued to miss appointments and was refusing to take medication. (R. 671.) LMSW Rodriguez further reported that Nunez was “still struggl[ing] with depressive symptoms, [being] easily frustrated and [having] trouble knowing what he want[ed] for his future.” (Id.) LMSW Rodriguez listed Nunez problems based on a 10-point scale of severity as the following: depression, lack of motivation and frustration - 10, family conflict -10 and substance abuse - 8. (R. 672.) On August 3, 2016, Nunez did not show up for his appointment with Dr. Ibanez. (R. 677.) The next day, LMSW Rodriguez called Nunez to discuss his missed appointments and left a message with his mother. (R. 669.)
On August 5, 2016, Nunez attended a therapy session with LMSW Rodriguez. (R. 344-46, 667-69.) Nunez reported feeling better and not experiencing any symptoms despite not taking his medications and still smoking, although he had reduced his consumption. (R. 345, 667.)
The following week, on August 12, 2016, Nunez had a follow-up appointment with Dr. Ibanez. (R. 341-44, 661-64.) Nunez reported doing well, but felt confused and guilty about his grandmother's passing. (R. 341.) He reported believing that he “had something to do with her dying” because he was listening to “dark music” at the time. (Id.) He also told Dr. Ibanez that he “might have psychosis” but believed he “might be able to break free from it.” (R. 342.) He admitted to smoking marijuana but reported doing so “a lot less” than before. (Id.) He denied paranoia but admitted that “at one time [he] thought [he heard] something but it only happened once or twice.” (Id.) On mental status examination, Dr. Ibanez noted that Nunez had average eye contact, cooperative attitude, full affect, intact memory and concentration, normal insight, fair impulse control and fair judgment. (R. 343.) Dr. Ibanez noted that Nunez was not interested in taking medications and advised him that doing so may be indicated based on his history of psychotic disorder. (R. 344.) Dr. Ibanez found that Nunez no longer met the high-risk criteria and removed him from the high-risk log. (Id.) He also counseled Nunez on marijuana induced psychosis. (Id.)
On September 9, 2016, Nunez did not show up to his appointment with LMSW Rodriguez. (R. 660.) At his next appointment, on September 16, 2016, Nunez reported feeling well and not experiencing any episodes of psychosis, although he was not adhering to his medication and was continuing to smoke marijuana. (R. 601-02, 656-57.)
Nunez did not appear for a September 22, 2016 appointment with Dr. Ibanez. (R. 655.) During his next two weekly appointments with LMSW Rodriguez on September 23 and 30, 2016, Nunez reported feeling well and was stable despite not taking medication. (R. 599-600, 650, 65354.)
On October 7, 2016, Nunez saw LCSW-R Pena-Franqui and denied suicidal ideation, homicidal ideation, auditory hallucinations and visual hallucinations. (R. 649.) At his next appointment, on October 21, 2016, Nunez reported a conflict with his mother's partner, which led him to be “taken out in handcuffs.” (R. 647-48.) On October 31, 2016, Nunez did not show for his scheduled appointment with Dr. Ibanez. (R. 642-44.)
On December 5, 2016, Nunez's mother came to the clinic and reported feeling worried that Nunez, who was staying with his father, was becoming aggressive. (R. 645.) LCSW-R Pena-Franqui told his mother that the family needed to take Nunez to the hospital. (Id.) Nunez's mother refused to give the father's address, claiming that she did not know it, and LCSW-R Pena-Franqui told her to ask Nunez to come to the clinic. (Id.) On December 20, 2016, LCSW-R Pena-Franqui noted that she had recently left a message for Nunez to come to the clinic and recommended that his case be considered for closure if he did not show up. (R. 646.) LCSW-R Pena-Franqui attempted to contact Nunez again on January 3, 2017. (R. 640.)
F. January 4-13, 2017 Hospitalization - Brunswick Hospital Center
On January 4, 2017, Nunez was referred to Brunswick Hospital Center for psychiatric evaluation and treatment after his family called EMS because he was noncompliant with medication, using marijuana daily and acting erratic at home. (R. 1218-39.) His family reported that he had been acting strangely at home, throwing things around the apartment and acting “very aggressive,” including chasing his father with a screwdriver. (R. 1218.) At the time of admission, Nunez denied psychotic symptoms, but his thought process and thought content appeared to be tangential. (R. 1219.) He also appeared to be internally preoccupied and paranoid. (Id.) He presented as unkempt but was alert, oriented and cooperative during the evaluation. (Id.) Nunez endorsed poor sleep, appetite and concentration. (Id.) Nunez was admitted to the psychiatric inpatient unit for stabilization and treatment. (R. 1220.) While on the unit, Nunez was resistant to taking medication. (R. 1222.) He was prescribed Depakote and Zyprexa, which he refused to take, so it was changed to Seroquel. (Id.) Nunez recompensated well on medication. (Id.) Nunez was discharged on January 13, 2017, with a plan to follow up with a social worker and his psychiatrist for medication management. (R. 1222-23.)
G. January 2017 Treatment Records
On January 17, 2017, Nunez was assigned Krystal Andino, LMSW (“LMSW Andino”) as his new therapist at FTMHC. (R. 598-99, 635-39.) During their initial meeting, Nunez reported issues “controlling his thoughts” as well as recurrent flashbacks, depression and feeling lonely. (R. 63839.) Nunez also “kept referencing bright lights throughout the session.” (Id.)
On January 19, 2017, Nunez saw Dr. Ibanez for the first time since August 2016. (R. 594-97, 626, 628-32.) Dr. Ibanez noted that Nunez had not been on medications since May 2016, but noted that he had been prescribed Depakote and Seroquel during his recent hospitalization. (R. 628.) Nunez reported that he had not been able to take his medications due to insurance reasons. (Id.) However, he later clarified that he was not taking his medications because the pills were not in the specific shape he wanted. (Id.) He was unable to elaborate on the details of his hospital admission and described his mood as “happy, sad, complacent, angry.” (Id.) When asked about auditory hallucinations, Nunez responded “I hear everything.” (Id.) On mental status examination, Nunez appeared well groomed with intense eye contact; cooperative mood; psychotic quality in his affect; concrete thought process; intact memory, attention and concentration; fair judgment; and difficulty acknowledging his psychiatric problems. (R. 630.) Dr. Ibanez noted that Nunez was high-risk and advised him to call if he could not get his medication filled. (R. 631.) The same day, Nunez also saw LMSW Andino, who reported that Nunez said he was “feel[ing] the Love” but could not specify from whom and again referenced flashing lights. (R. 633-34.)
On January 23, 2017, Nunez saw LMSW Andino for treatment plan review. (R. 622-25.) Nunez reported that he had not used any drugs for a few weeks. (R. 622.) He further reported feelings of frustration, depression and lack of motivation; conflict with his family; and seeing “bright lights.” (Id.) During a therapy session a few days later, Nunez again referenced the “bright lights,” but he was unable to connect the lights to anything. (R. 633.)
H. January 27, 2017 To February 14, 2017 Hospitalization - North Central Bronx Hospital
On January 27, 2017, Nunez was brought to North Central Bronx Hospital by EMS after complaining to LMSW Andino of auditory hallucinations telling him to harm himself. (R. 563, 593-94, 608-21, 874.) Upon intake, Nunez's insight was impaired and he was acutely paranoid. (R. 874.) He expressed having an anxious mood; displayed an anxious, constricted affect; and presented with disorganized illogical thinking and grandiose delusions. (Id.) He also was described as agitated. (R. 579-80.) Nunez spoke of feeling “unreal” and told a story that “didn't make sense.” (R. 563, 874.) He presented as acutely paranoid and was unable to leave the interview room. (R. 874.) He expressed anxious mood and displayed anxious, constricted affect. (Id.) He denied suicidal ideation but admitted to calling a suicide hotline the night prior. (Id.) He was unable to articulate why he called the hotline. (Id.) As to substances, his urine toxicology exams were positive for cannabinoids. (R. 900.) Nunez was admitted for psychiatric evaluation and treatment. (R. 567.)
In a later session, Nunez explained that he called the suicide hotline because he wanted to see the hotline's reaction to his grandmother's alleged statement - that he did not deserve to live. (R. 588.)
On January 28, 2017, Deborah Brohme, M.D., consulted with LMSW Andino and admitted Nunez, noting that he was psychotic, thought-disordered, bizarre, hearing voices to hurt himself and feeling unsafe. (R. 571.) Dr. Brohme recommended continuing treatment. (Id.) The following day, Jagdish Bathija, M.D., reviewed Nunez's clinic status with the nursing staff, who reported that Nunez was doing “alright” on the current treatment plan and medications. (R. 572.)
On January 30, 2017, Dr. Brohme evaluated Nunez again. (R. 574-75, 906-14.) Dr. Brohme noted impaired insight, disorganized behavior, confused thoughts, euthymic mood and moderately blunted affect. (Id.) Nunez denied homicidal ideation and perpetual disturbances. (R. 575, 907.) As to substances, Nunez consumed a bag of marijuana each week. (R. 908.) As to suicide, Dr. Brohme noted that Nunez did not experience suicidal ideation in the past month and was not an acute suicide risk but also found that, during the past month, Nunez had active suicidal thoughts and wishes to be dead. (R. 909-10.) Nunez did not understand that he had a mental illness. (R. 910.)
The same day, Nunez saw Alexandra Drake, PsyD. (R. 911.) Nunez minimized his recent call to the suicide hotline, saying he only called to identify his feeling after his grandmother told him he did not deserve to live. (Id.) Nunez denied auditory hallucinations and became angry when Dr. Drake related that his report indicated that he had been experiencing command auditory hallucinations telling him to harm himself. (Id.) Nunez refused to leave the interview room because he was fearful he would be raped on the unit. (Id.) Dr. Drake noted that Nunez's thought process was illogical and tangential. (Id.) Dr. Brohme spoke to Nunez's sister, who told her that Nunez reported hearing voices but did not relay what the voices said. (R. 576, 916.) Dr. Brohme noted that Nunez had grandiose delusions, including communicating with Jay-Z through Bluetooth speakers. (Id.) Nunez was put on close observation. (R. 914-15.) Nunez refused Depakote and was given Benadryl for insomnia. (Id.)
On February 1, 2017, Dr. Brohme noted that Nunez's thoughts were logical, affect brighter and sleep improved. (R. 577.) Nunez remained on close observation, but a nurse's noted stated that no psychotic behavior was observed. (R. 917.) The next day, Dr. Brohme noted that Nunez became agitated and refused to leave a room. (R. 577-78, 917-18.) During the team meeting, Nunez insisted that he had to leave immediately to start making his movie. (Id.) A nurse noted that Nunez was pacing the hallway, frequently approaching the nurse station to request medication. (R. 919.)
On February 3, 2017, after one week of being hospitalized, Nunez reportedly was less agitated but continued to be delusional, illogical and confused. (R. 579.) Activity Therapist Edward Jalowiecki reported that Nunez was oddly related with constricted affect and grandiose thoughts. (Id.) The following day, Carlos Monteagudo, M.D., and Luis Gonzales, M.D., noted that Nunez remained paranoid, irritable, angry, agitated and anxious. (R. 579-80, 921-22.) Nunez refused medication and redirection, so he was treated with intramuscular Haldol and Ativan. (R. 579, 921-22.) Dr. Gonzales indicated that Nunez still needed stabilization. (R. 580, 922.) During a period of close observation, Nunez became aggressive - banging glass at the nurse's station and refusing redirection. (R. 921.)
On February 5, 2017, Dr. Gonzales noted that there was no major improvement in Nunez's condition. (R. 580, 923.) The next day, Dr. Brohme noted that Nunez was irritable but that he no longer expressed delusions of being in contact with Oprah, Jay-Z or other entertainers. (R. 581, 924.) Nunez also saw Dr. Drake, who noted that, while Nunez had exhibited signs of paranoid thinking during the past week, he had also shown some improvement. (R. 925.) Dr. Drake further noted that Nunez's thought process was “illogical and contained tenuous connections between topics, making it difficult to follow [him].” (Id.) He would also “often make statements contradicting information he had been told” and appeared to be internally preoccupied. (Id.) Nunez remained preoccupied with discharge, “making it difficult to engage in productive individual sessions.” (Id.) Also on February 6, 2017, a nurse reported that Nunez still was on close observation after sexually acting out. (R. 926.)
On February 8, 2017, Dr. Bohme noted that Nunez remained “concrete and perseverative and seeming[ly] unable to comprehend simple statements.” (R. 582, 928.) Additionally, Nunez was “often irritable” and continued to ask the same questions repeatedly. (Id.) The following day, Nunez saw Dr. Brohme and complained of disturbing and violent nightmares and anxiety. (R. 583, 930.) Dr. Brohme increased his Seroquel and Klonopin dosage to help with his sleep and anxiety. (Id.) Dr. Brohme also prescribed Ritalin for “harm reduction” because Nunez felt it had the same effect as cannabis but discontinued the Ritalin prescription the following day (i.e., February 10, 2017). (R. 584-85, 932-33.)
On February 10, 2017, Activity Therapist Lucy Holtzman reported that Nunez's peer interactions were appropriate and ability to engage in one-on-one conversation was fair but that he still had limited insight into his mental illness. (R. 932.) The same day, a social worker reported that Nunez was focused on discharge and often could not be redirected, and a nurse noted that Nunez was manipulative and demanding. (R. 933.) The next day, Dr. Gonzales noted that there was no major improvement in Nunez's condition. (R. 585, 935.) Nunez remained uncooperative, needy and irritable. (Id.) A nurse noted that Nunez was involved in a verbal altercation that required staff to intervene before it turned physical and that he became loud/banged on the telephone when talking to family members before requesting to call 911 on his family for domestic abuse. (Id.)
On February 12, 2017, Dr. Gonzales again found that there was no major improvement in Nunez's condition and that he remained irritable and easily agitated. (R. 586, 936.) The following day, Dr. Brohme noted that Nunez was in good behavioral condition; better related; much less preoccupied with delusional thinking; and not impulsive, paranoid or aggressive. (R. 586, 588, 937, 940.) Nunez denied nightmares. (R. 587-88, 937, 940.) After Nunez called LMSW Andino and Dr. Ibanez seeking an Adderall or Ritalin prescription, Dr. Ibanez spoke with Dr. Brohme (apparently misspelled as Dr. Brun) and advised that stimulants could worsen Nunez's symptoms and that Nunez has a history of using substances not prescribed for him. (R. 609-10.) In her weekly note, Dr. Drake noted that Nunez had shown much improvement with more organized, logical, reality-based and goal-directed thinking. (R. 939.) Nunez was in good behavioral control but still preoccupied with discharge, needy to staff and seeking reassurance. (Id.) As to substances, Nunez believed marijuana made him feel calmer but wished to abstain from consumption upon discharge. (Id.)
On February 14, 2017, Nunez was discharged by Dr. Brohme. (R. 565, 589, 876, 942-44.) At time of discharge, Nunez no longer was presenting with paranoia. (R. 564-65, 589.) Nunez was prescribed Klonopin for anxiety, Albuterol for asthma, Trazodone for insomnia and Seroquel to address auditory hallucinations. (R. 565-66.)
I. February To March 2017 Treatment In Dominican Republic
In February and March 2017, Nunez received treatment at Armonia Medical Center in the Dominican Republic. (R. 824, 1366-67.) Dr. Wirson Urena noted, in a letter dated May 19, 2022, that Nunez had presented with messianic delusions, logorrhea, altered sleep pattern, increased motor skills, auditory hallucinations and altered eating patterns. (Id.) He was diagnosed with type 1 bipolar mood disorder and was treated with olanzapine Lithium and escitalopram. (Id.) Dr. Urena noted that, at the time of the letter, Nunez was stable and continued to be medicated on an outpatient basis. (Id.)
Nunez had told LMSW Andino that his family was sending him to the Dominican Republic until he got better. (R. 611.) On February 23, 2017, LMSW Andino discharged Nunez from her care after Nunez's mother informed her that Nunez had left for the Dominican Republic. (R. 591, 613-14.) When summarizing services, LMSW Andino noted that Nunez was on the high-risk log for multiple hospitalizations. (R. 591, 614.) As to outcomes, Andino noted that Nunez did not comply with treatment recommendations, did not adhere to his medications and self-medicated with marijuana. (Id.) At discharge, LMSW Andino noted Nunez's diagnoses as psychosis, major depressive disorder, nicotine dependence, panic disorder without agoraphobia, bipolar disease and cannabis dependence. (R. 591-92, 614-15.)
During the June 2022 hearing, Nunez's attorney stated that there were no psychiatric records from the Dominican Republic in the record because that country does not release psychiatric records. (See R. 1025.)
J. May 15, 2017 Fedcap Biopsychosocial Examination - Fazil Hussein, M.D.
On May 15, 2017, intake specialist Tiffani Hardi completed a “Fedcap Biopsychosocial Summary WC II” for Nunez, which was reviewed and signed by Fazil Hussein, M.D.(R. 775-805.) Nunez reported traveling independently by both bus and subway, however, he noted difficulty due to “onset psychosis where his vision bec[ame] blurry and he ha[d] to sit down.” (R. 777-78.) Nunez reported that his shortness of breath, blurry vision, uncontrolled body weakness and difficulty holding objects were barriers to employment. (R. 778.) He also endorsed feeling nervous more than half the time over the past thirty days. (R. 780, 787.) When asked about his substance use, Nunez reported he was not currently using any substances and claimed his last marijuana use was in 2010. (R. 781.) His daily activities included playing video games, spending time with his family and talking. (R. 784.) During his interview with Dr. Hussain, Nunez reported psychosis, anxiety, poor concentration and panic attacks, and he stated that he was compliant with his treatment. (R. 790-91.) Dr. Hussain noted that Nunez was compliant with his treatment. (R. 790.) Dr. Hussain found that Nunez had work limitations due to his low sustained attention and concentration, low stress tolerance and anxiety and indicated that his work accommodation should include a low stress environment. (R. 801, 803.) Dr. Hussain found that Nunez was “temporarily unable to work” and recommended a Wellness Plan for further psychiatric stabilization. (R. 805.)
FEDCAP provides community based medical and vocational assessment of individuals. (See Pl.'s Mem., ECF No. 14, at 7 n.5.)
K. November 2017 To March 2018 Treatment Records
In November 2017, Nunez began monthly psychiatric treatment with Elba Bello, M.D., of Fernando T. Taveras, M.D., P.C. (R. 824.) On November 27, 2017, Nunez presented with his mother, who reported that he had been stable since returning from his hospitalization in the Dominican Republic and confirmed that his substance use had been in remission for the past year. (Id.) Nunez stated that he felt “much better with treatment” and had been taking his medications as given to him by his mother. (Id.) He reported spending most of his time at home, since he was “too disorganized in his thinking” to be able to work. (Id.) He was taking Lithium, Fluphenazine, Escitalopram (Lexapro) and Olanzapine. (R. 824-25.) On examination, he was quiet but cooperative, minimally spontaneous with poverty of speech, paucity of thought, fair eye contact, flat affect, congruent mood and limited insight and judgment. (R. 825.) Dr. Bello diagnosed Nunez with cannabis abuse in remission and unspecified schizophrenia. (Id.)
On December 27, 2017, Nunez and his mother met with Dr. Bello. (R. 827.) Both Nunez and his mother reported that Nunez remained compliant with his medications. (Id.) On examination, he was cooperative but minimally communicative with no spontaneity, poverty of speech, paucity of thought, fair eye contact, flat affect for the most part, congruent mood and limited insight and judgment. (Id.) Dr. Bello continued Nunez's previous medication regimen. (Id.) The following month, on January 22, 2018, Dr. Bello noted no changes since the previous visit. (R. 828.)
During his February 19, 2018 appointment with Dr. Bello, Nunez's mother reported that he still was compliant with his medications but had been less motivated to do things and had been going to bed late at night. (R. 849.) Both Nunez and his mother denied any worsening psychotic symptoms. (Id.) On examination, Nunez was more engaged and communicative than previous sessions and remained as cooperative as previous sessions. (Id.) Nunez also exhibited more spontaneous speech at a regular rate, fair eye contact, slight psychomotor retardation, monotonous rhythm, flat affect for the most part, congruent mood and limited insight and judgment. (Id.) Dr. Bello increased his Lithium prescription but otherwise maintained Nunez's medication regimen. (Id.)
On March 19, 2018, Nunez and his mother met again with Dr. Bello. (R. 830.) Nunez's mother reported that he was still compliant with his medications and had been feeling more motivated and in brighter spirits than the previous month. (Id.) Nunez's mental status examination remained the same as the previous visit, and Dr. Bello continued Nunez's medications. (Id.)
L. April 2, 2018 Psychiatric Consultative Examination - Jody Popple, Ph.D.
On April 2, 2018, Nunez saw Jody Popple, Ph.D. for a psychiatric consultative examination. (R. 806-11.) Nunez stated his symptoms were worse than before and endorsed poor sleep, increased appetite, depression, social withdrawal, loss of interest and extreme anxiety in crowded spaces. (R. 807.) He also reported symptoms of panic attacks, including sweating, palpitations and tingling sensations approximately once per week with episodes lasting 15-20 minutes. (Id.) Nunez acknowledged periodic tactile hallucinations. (Id.) Nunez noted that he was currently taking Fluphenazine, Escitalopram, Olanzapine and Lithium. (Id.) Nunez further reported that he was suspended from his former job as a cashier after getting into a physical altercation with a coworker. (R. 806.)
Nunez reported that he did not believe he had psychosis and claimed that he left school because of “finances.” (R. 806.) However, his mother contradicted his statements. (Id.) She informed Dr. Popple that Nunez left school because of his psychotic symptoms and further described his erratic behaviors in reaction to stimuli that others do not see. (R. 807.) She reported that several ofthose episodes had resulted in the police being called or Nunez being hospitalized. (Id.) She also informed Dr. Popple that Nunez has a history of underreporting his psychiatric symptoms. (Id.) In response, Nunez stated he “fe[lt] people [we]re against him and that his family [wa]s not on his side.” (Id.) Dr. Popple observed that Nunez “appeared to be underreporting.” (R. 808.) Dr. Popple also noted some inconsistencies between his examination of Nunez and the previous 2016 consultative examination as to Nunez's psychosis, current and former drinking and drug habits and report of activities of daily living. (R. 809.) Dr. Popple opined that these inconsistencies “may be related to claimant's under reporting or confu[s]ional timeline.” (Id.)
On examination, Nunez was well groomed with intermittent eye contact, a cooperative demeanor, fair manner of relating and restricted affect. (R. 808.) He reported feeling “okay” and his attention and concentration were intact. (Id.) His recent and remote memory skills were mildly impaired, and his general fund of knowledge appeared somewhat limited. (Id.) His thought process was coherent and goal directed with no evidence of hallucinations, delusions or paranoia. (R. 808.) His insight was poor, and judgment was fair. (R. 809.) He reported being able to take public transportation independently if needed. (Id.) He also reported that his mother cleans, launders, shops and manages his money for him. (Id.) He stated he does know how to do these things but does not feel like doing them. (Id.) He also reported spending most of his time at home, having no friends and feeling as if people “always want to take advantage of him.” (Id.) He stated that he would like to return to school but had a hard time focusing and worried he would have another panic attack. (R. 810.)
Dr. Popple opined that Nunez was mildly limited in his ability to understand, remember or apply complex directions and instructions; use reason and judgment to make work-related decisions; and maintain personal hygiene and appropriate attire. (R. 810.) Dr. Popple also opined that Nunez had a moderate limitation in his ability to sustain concentration and perform a task at a consistent pace; sustain an ordinary routine and regular attendance at work; and maintain awareness of normal hazards and take appropriate precautions. (Id.) Dr. Popple further opined that Nunez had a moderate to marked impairment in his ability to interact adequately with supervisors, coworkers and the public, as well as a marked limitation in his ability to regulate emotions, control behavior and maintain well-being. (Id.) Dr. Popple stated Nunez's difficulties were “caused by psychotic symptoms and anxiety” and “may significantly interfere with the claimant's ability to function on a daily basis.” (Id.) Dr. Popple diagnosed Nunez with schizophrenia and unspecific anxiety disorder with panic attacks and found his prognosis to be fair “given external supports and current involvement in treatment.” (R. 811.) Dr. Popple also opined that Nunez would not be able to manage his own funds due to his psychiatric symptoms. (Id.)
M. May 2018 To September 2019 Treatment Records
On May 2, 2018, Nunez had another visit with Dr. Bello. (R. 831.) Nunez's mother reported he was still compliant with his medications and remained more motivated and in brighter spirits than previous months. (Id.) However, over the past several weeks, Nunez had experienced negative thoughts (i.e., something bad happening to his mother) a few times a day. (Id.) Nunez also exhibited more spontaneous speech at a regular rate, fair eye contact, slight psychomotor retardation, monotonous rhythm, congruent mood and limited insight and judgment. (Id.) Dr. Bello increased his Lexapro dosage. (Id.)
Nunez next saw Dr. Bello on June 14, 2018, after a monthlong trip to the Dominican Republic. (R. 832.) Nunez and his mother reported that he had been compliant with his medications. (Id.) Following Nunez's return from the trip, his mother tried encouraging him to continue going to the gym and going out for special occasions, as he had been doing on his trip. (Id.) On examination, Nunez was happier, pleasant, relaxed and polite. (Id.) A mental status examination was otherwise the same as his prior visit. (Id.) Dr. Bello continued Nunez on the same medications. (Id.) On July 12, 2018, Nunez had another visit with Dr. Bello where he reported that his mood was stable. (R. 833.) A mental status examination was the same as his prior visit. (Id.) Nunez reported being less anxious on Lexapro but a bit sleepy and agreed to try a lower dose. (Id.)
On August 3, 2018, Nunez reported to his primary care doctor, Jacqueline Carreno, M.D., that he was feeling down and depressed. (R. 848.) The following week, on August 9, 2018, Nunez reported to Dr. Bello that he was doing well. (R. 834.) Dr. Bello noted that Nunez remained “a bit anxious at times but seems to have improved over the past several [months].” (Id.) On examination, Nunez was in fair spirits, cooperative and polite. (Id.) Other mental status examination findings remained the same as his prior visit. (Id.) Dr. Bello decreased his Lithium prescription due to abnormal labs. (Id.) During Nunez's next two monthly appointments, on September 10, 2018 and October 9, 2018, Dr. Bello documented similar findings with unchanged mental status examinations. (R. 835-36.)
On November 12, 2018, Nunez had an appointment with another psychiatrist in the same practice, Fernando Taveras, M.D. (R. 837.) Nunez reported feeling “pretty good,” good energy and motivation and regular exercise. (Id.) Nunez remained compliant with his medication. (Id.) On examination, Dr. Taveras reported that Nunez was in good spirits, polite, cooperative and communicative. (Id.) Nunez also exhibited some spontaneous speech at a regular rate, fair eye contact, congruent mood and limited insight and judgment. (Id.) Dr. Taveras maintained Nunez's medication regime. (Id.)
On December 11, 2018, Nunez had his next appointment with Dr. Taveras. (R. 838.) Nunez complained of chest pains while at rest, not while exercising, so Dr. Taveras referred him for an EKG. (Id.) On examination, Dr. Taveras noted that Nunez was happy, pleasant, cooperative and communicative. (Id.) Nunez also exhibited increased spontaneity in his speech, fair eye contact, good mood and limited insight and judgment. (Id.)
On January 8, 2019, Nunez had another visit with Dr. Taveras. (R. 839.) Nunez reported that he was no longer exercising because he was spending more time playing video games. (Id.) On examination, Dr. Taveras noted that Nunez was euthymic, polite, cooperative and easily engaged in the session. (Id.) Nunez also exhibited increased spontaneity in his speech, fair eye contact, WNL psychomotor, monotonous rhythm, okay mood and limited insight and judgment. (Id.) Nunez reported that his doctor believes his chest pains may be due to anxiety but also reported that he has not experienced the pain since last month. (Id.) Dr. Taveras identified these pains as panic attacks and discussed increasing Nunez's Lexapro dosage if they reoccurred. (Id.)
On February 6, 2019, Nunez saw Dr. Bello. (R. 840-41.) Nunez reported he had been compliant with his medications but was feeling “a bit down over the past month, less motivated to go out or return to the gym.” (R. 840.) Nunez attributed these feelings to the change in season, since he felt similarly around this time the year prior. (Id.) His mental status examination remained the same as the previous session, and Dr. Bello increased his Lexapro prescription. (Id.)
Nunez had his next appointment with Dr. Bello on March 6, 2019. (R. 947-48.) Nunez reported feeling “much better” since the last medication adjustment. (R. 947.) He noted increased energy level, mood and motivation but was “still not going out as much as he had before” or going to the gym as frequently. (Id.) He was eating and sleeping well and denied recent panic attacks. (Id.) Upon examination, Nunez appeared happier, smiling more naturally, polite, communicative and cooperative with good eye contact. (Id.)
On April 2, 2019, Nunez saw Dr. Bello. (R. 949-50.) Nunez reported feeling “pretty good for the most part over the past month.” (R. 949.) He noted some days where he felt sad or nervous, but the feelings seemed to be fleeting. (Id.) He reported trying to distract himself when those feelings arise, which “sometimes help[ed].” (Id.) Nunez also noted sleeping and eating well. (Id.) Upon examination, Nunez appeared in brighter spirits, polite, communicative and cooperative with good eye contact. (Id.)
On April 30, 2019, Nunez saw Dr. Bello. (R. 951-52.) He reported feeling “ok,” but “a bit nervous.” (R. 951.) He noted that his recent doctor and dentist appointments may have contributed to his nervousness. (Id.) He continued to report medication adherence. (Id.) Upon examination, Nunez appeared in fair spirits, polite and cooperative with good eye contact. (R. 949.) During his next visit, on May 30, 2019, Nunez endorsed poor focus, feeling impatient and excessive saliva. (R. 953-54.) He reported that he wanted to be working but felt his “impatience [kept] him from doing these things.” (Id.) He also complained of having no friends. (Id.) Upon examination, Nunez appeared in fair spirits, polite and cooperative with good eye contact. (Id.)
On June 27, 2019, Nunez began seeing Dr. Giovanny Nunez, in Dr. Bello's absence. (R. 966-67.) He reported doing well - including sleeping well, eating well and tolerating medication without side effects. (R. 966.) Upon mental examination, Nunez denied suicidal or self-injurious ideas or impulses, assaultive or homicidal ideas or impulses, attentional or hyperactive difficulties, hallucinations and delusions. (Id.) Dr. Nunez also noted no signs of depression, manic process, anxiety or thought disorder; intact associations, cognitive functioning, insight and social judgment; generally logical thinking; and appropriate thought content. (Id.)
Nunez was next seen by Dr. Nunez on September 9, 2019. (R. 968, 1297.) Dr. Nunez noted that Nunez was sleeping well, eating well and tolerating medication without side effects. (R. 968.) Dr. Nunez further noted that Nunez was in a brighter mood and doing much better, including not experiencing lack of behavior control. (Id.) He had received Prolixin on August 26, 2019. (Id.) Upon mental examination, Dr. Nunez found no serious mental status abnormalities. (Id.) Nunez denied suicidal or self-injurious ideas or intentions and assaultive or homicidal ideas or intentions. (Id.) Dr. Nunez also noted no signs of depression, mood elevation, hallucinations, delusions, cognitive difficulty, anxiety and hyperactivity; intact language skills, associations, recent and remote memory, insight and judgment; basically logical thinking; generally appropriate behavior and normal attention span. (Id.) Dr. Nunez further diagnosed Nunez with schizophrenia and ADHD.
(Id.) Nunez reported that he saw a psychiatrist while he was in the Dominican Republic the month prior and was proscribed Strattera, which Dr. Nunez continued prescribing. (Id.) Dr. Nunez also continued Nunez on Zyprexa, Prolixin, Lithium and Lexapro. (Id.)
N. September 20, 2019 Dr. Nunez Psychiatric RFC Assessment
On September 20, 2019, Dr. Nunez completed a Psychiatric RFC Assessment of Nunez. (R. 956-64.) Dr. Nunez listed Nunez's diagnoses as schizophrenia, noting that it was a chronic illness that would last indefinitely; ADHD; and asthma. (R. 956.) Dr. Nunez indicated the following positive clinical findings to support a diagnosis of schizophrenia: poor memory; sleep disturbance; delusions or hallucinations; anhedonia or pervasive loss of interests; paranoia or inappropriate suspiciousness; difficulty thinking or concentrating; oddities of thought, perception, speech or behavior; perceptual disturbances; social withdrawal or isolation; blunt, flat or inappropriate affect; illogical thinking or loosening of associations; hostility and irritability; and pathological dependence or passivity. (R. 957.) Dr. Nunez listed Nunez's primary positive symptoms as auditory hallucinations/withdrawn, paranoid ideations and decreased concentration and attention. (R. 958.) Dr. Nunez also noted that Nunez had experienced multiple previous hospitalizations as a result of his symptoms. (Id.)
Dr. Nunez opined that Nunez was markedly limited in the mental activities necessary to understand, remember or apply information, such as remembering locations and work-like procedures; understanding and remembering one- or two-step instructions; and understanding and remembering detailed instructions. (R. 959.) Dr. Nunez opined that Nunez was extremely limited in the mental activities required for social interactions, including interacting appropriately with the general public; asking simple questions or requesting assistance; accepting instructions and responding appropriately to criticism; getting along with co-workers or peers without distracting them or exhibiting behavioral extremes; and maintaining socially appropriate behavior and adhering to basic standards of neatness and cleanliness. (R. 960.) Regarding concentration, persistence or maintaining pace, Dr. Nunez opined that Nunez had a marked limitation in his ability to carry out simple one- and two-step instructions, and an extreme limitation in his ability to carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance and be punctual within customary tolerance; sustain ordinary routine without supervision; work in coordination or proximity to others without being distracted by them; make simple work-related decisions; and complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (R. 960-61.) Finally, Dr. Nunez opined that Nunez was extremely limited in his ability to adapt and self-manage, including responding appropriately to changes in the work setting; being aware of normal hazards and taking appropriate precautions; traveling to unfamiliar places or using public transportation; and setting realistic goals or making plans independently. (R. 962.) Dr. Nunez explained that, in work or work-like settings, Nunez experienced episodes of deterioration or decompensation that included schizophrenia with severe negative symptoms. (Id.) Dr. Nunez further explained that the symptoms were ongoing and would last at least 12 months. (R. 963.)
Based on Nunez's clinical interviews, past history and symptoms since at least 2012, Dr. Nunez concluded that Nunez could not tolerate even “low stress” work and was likely to be absent from work more than three times a month due to the nature of his illness. (R. 963-64.) Dr. Nunez also stated that Nunez would be unable to manage benefits in his own best interest and that Nunez's mother “makes most of his decisions.” (R. 964.)
O. September 2019 To May 2022 Treatment Records
On September 26, 2019, Nunez complained of auditory hallucinations, but his mental status examination revealed no hallucinations. (R. 970, 1299-1300.) Upon mental examination, Dr. Nunez found no serious mental status abnormalities. (R. 970.) Dr. Nunez also noted no signs of depression, mood elevation, hallucinations, delusions, cognitive difficulty, anxiety and hyperactivity; intact language skills, associations, recent and remote memory, insight and judgment; basically logical thinking; generally appropriate behavior and normal attention span. (Id.) Dr. Nunez increased both Nunez's Prolixin prescription and his Strattera prescription. (Id.) Dr. Nunez also started Nunez on Cogentin. (Id.)
On October 24, 2019, Nunez had a visit with Dr. Nunez. (R. 1301.) Nunez denied acute symptoms of anxiety, mood disorder and psychosis. (Id.) A mental status examination was the same as the prior visit. (Id.) Dr. Nunez noted that Nunez's mood had improved since his Prolixin was increased and increased his Strattera. (R. 1301-02.) The next two visits, on November 25, 2019 and December 26, 2019, were largely the same with no significant changes on mental status examination. (R. 1303-06.)
During his monthly appointment on January 28, 2020, Dr. Nunez noted that Nunez was in good control of his behavior, but did not feel like Strattera was effective. (R. 1307-08.) As a result, Dr. Nunez began tapering Strattera and started Adderall. (Id.) A mental status examination revealed no significant changes since the last session. (Id.) On February 25, 2020, Nunez again saw Dr. Nunez and reported stability, sleeping and eating well and no new symptoms. (R. 1309.)
Dr. Nunez increased Nunez's Adderall dosage. (R. 1310.) His mental status examination revealed no significant changes since the last session. (Id.)
On March 24, 2020, Dr. Nunez had a phone appointment with Nunez. (R. 1311.) Dr. Nunez noted that the patient was doing well but “continue[d] to have problems with attention and concentration.” (Id.) On mental status examination, Nunez had a good mood, lineal and goal directed thought process, no suicidal or homicidal ideations, no auditory or visual hallucination, no delusions, fair insight and judgment and intact cognition. (Id.) Dr. Nunez increased Nunez's Adderall dosage and discontinued Strattera. (R. 1312.)
For each of the next nine months, between April and December 2020, Dr. Nunez had monthly appointments with Nunez, some of them by phone, which revealed overall stability and no significant changes in Nunez's mental status examination since March 24, 2020. (R. 1313, 1315, 1317, 1319, 1323, 1325, 1327, 1329.)
On January 6, 2021, Nunez was seen by Dr. Nunez, who noted he was “doing much better, his mood is brighter, calmer, in good control of behavior.” (R. 1331.) Between February 2021 and May 2022, Nunez had approximately monthly appointments with Dr. Nunez where he reported no psychotic symptoms. (R. 1333-63.) However, during the November 1, 2021 session, Dr. Nunez noted that ongoing treatment was necessary for Nunez to maintain stability. (R. 1349.)
IV. Administrative Hearing Testimony
A. Plaintiff's October 11, 2019 Testimony
At the first administrative hearing before ALJ Solomon on October 11, 2019, Nunez testified that he had sought employment but discontinued his search in March 2017 when he was no longer able to “socialize” due to his medications. (R. 39, 1047.) Nunez testified that he had trouble making friends and maintaining friendships. (R. 46, 1053, 1056.) In terms of daily activities, Nunez testified that he watched the news or played videos and, approximately every other day, played video games, but his short attention span limited the amount he could play to typically two-to-three hours. (R. 41-42, 1049-52.) Nunez further testified that he did not perform household chores and could only sometimes travel by himself. (R. 1054.)
Nunez testified that he “hear[d] things that might not be there” three-to-four times a day, for approximately ten minutes. (R. 45-46, 1053.) Nunez also testified that he stopped using marijuana after his January 2017 hospitalization. (R. 39, 50, 1047-48, 1056-57.)
B. Mary Deleon's October 11, 2019 Testimony
At the second hearing, ALJ Solomon adopted the testimony of Nunez's mother from the October 2019 hearing in lieu of her testifying again. (R. 1025-26.)
Nunez's mother, Mary Deleon, also testified during the October 11, 2019 hearing. (R. 55, 280, 1060-63, 1186.) Deleon testified that Nunez was hospitalized in January 2017 because he wanted to commit suicide. (R. 59, 1063.) Deleon testified that she saw Nunez on a daily basis, during which he was normally sleeping or playing on the computer. (R. 60, 1063-64.) She further testified that he does not assist with chores because he is hungry, tired or sad. (R. 60, 1064.) Deleon testified that she travels with Nunez when he leaves the house to make him feel more secure. (R. 60-61, 1064.)
C. Plaintiff's June 10, 2022 Testimony
At the administrative hearing before ALJ Solomon on June 10, 2022, Nunez testified that he started performing security work at an office building two days per week, at eight hours per day, beginning in early February and that he took the bus to work. (R. 1029, 1031.) Nunez testified that he only worked two days per week because he believed that increasing his hours could lead to a panic attack. (R. 1034.) Even with his limited hours, Nunez sometimes felt faint. (Id.) Nunez also experienced feeling dizzy, along with asthma symptoms, when doing laundry, cooking and cleaning, so his parents performed those chores. (R. 1034-35.)
Nunez testified that he continued to receive treatment from Dr. Tavaresand indicated that, contrary to Dr. Tavares's assessment, Nunez believed that he still experienced symptoms. (R. 1031-32.) Specifically, Nunez testified that he “hear[d] things that are maybe not there” on a daily basis for approximately ten minutes but that the voices did not tell him to do anything bad or say anything bad about him. (R. 1032.) Nunez further testified that he did not socialize beyond interactions with his mother and father. (R. 1035.)
In the hearing transcript, Dr. Tavares's surname is misspelled as “Toveras.”
D. June 10, 2022 Vocational Expert Testimony
During the June 10, 2022 hearing, Vocational Expert (“VE”) Edmond Calandra also testified. (R. 1035-36.) The ALJ asked VE Calandra about a hypothetical individual with Nunez's age, education and work experience, and with the residual functional capacity (“RFC”) of an individual who could perform work at any exertional level, but must avoid unprotected heights, hazardous machinery and concentrated exposure to respiratory irritants and was limited to remembering, understanding and carrying out simple instructions; using judgment to make simple work-related decisions; dealing with occasional changes in a routine work setting; and performing a job with occasional interaction with supervisors, coworkers and the general public. (R. 1036-37.) VE Calandra testified that such individual could perform work as a hand packer (DOT #920.587-018), kitchen helper (DOT #318.687-010) and laundry worker (DOT #361.685-018). (R. 1037.) If the individual was unable to make simple work-related decisions; unable to deal with occasional changes in a routine work setting; or unable to remember, understand and carry out simple instructions, VE Calandra testified that such hypothetical individual could not work. (Id.) VE Calandra further testified that an individual could not be off task more than ten percent of the physical workday, be absent more than eight hours of work in a single month or only work two days per week and still maintain full-time employment. (R. 1038-39.)
V. ALJ Solomon's June 29, 2022 Decision
Applying the Commissioner's five-step sequential evaluation, see infra Legal Standards Section II, ALJ Solomon found at step one that Nunez had not engaged in substantial gainful activity since June 15, 2015, the alleged onset date. (R. 988.) At step two, the ALJ determined that Nunez had the following severe impairments: schizophrenia, substance abuse and a history of asthma. (R. 989.)
At step three, the ALJ found that Nunez did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 990.) With respect to Plaintiff's mental impairments, the ALJ specifically considered Listings 12.03, 12.04 and 12.06. (Id.) As to paragraph B criteria, the ALJ found that Nunez's mental impairments caused mild limitations in understanding, remembering or applying information and in adapting or managing oneself and moderate limitations in interacting with others and in concentrating, persisting or maintaining pace. (R. 991-95.) The ALJ then addressed the paragraph C criteria, finding that “there [was] no evidence of marginal adjustment, defined as the minimal capacity to adapt to changes in his environment or to demands that are not already a part of his daily life.” (R. 995.)
The ALJ then assessed Nunez's RFC and determined that Nunez was able to perform a full range of work, except that he must avoid working at unprotected heights, working with hazardous machinery and concentrated exposure to respiratory irritants and was limited to remembering, understanding and carrying out simple instructions; using judgment to make simple work-related decisions; dealing with occasional changes in a routine work setting; and performing a job with occasional interaction with supervisors, coworkers and the general public. (R. 996.)
At step four, the ALJ found that Nunez was unable to perform any past relevant work. (R. 1011.) At step five, the ALJ considered Nunez's age, education, work experience and RFC and concluded that there were jobs existing in significant numbers in the national economy that Nunez could have performed, including hand packer (DOT #920.587-018), kitchen helper (DOT #318.687-010) and laundry worker (DOT #361.685-018). (R. 1011-12.) Accordingly, the ALJ found that Nunez was not disabled between June 15, 2015 (i.e., the alleged onset date) and June 29, 2022 (i.e., the date of the decision). (R. 1013.)
LEGAL STANDARDS
I. Standard Of Review
In reviewing a decision of the Commissioner, a court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). “The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence.” Ulloa v. Colvin, No. 13-CV-04518 (ER), 2015 WL 110079, at *6 (S.D.N.Y. Jan. 7, 2015) (citing Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)). “Even if the Commissioner's decision is supported by substantial evidence, legal error alone can be enough to overturn the ALJ's decision[.]” Id.; accord Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). A court must set aside legally erroneous agency action unless “application of the correct legal principles to the record could lead only to the same conclusion,” rendering the errors harmless. Garcia v. Berryhill, No. 17-CV-10064 (BCM), 2018 WL 5961423, at *11 (S.D.N.Y. Nov. 14, 2018) (quoting Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)).
Absent legal error, the ALJ's disability determination may be set aside only if it is not supported by substantial evidence. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (vacating and remanding ALJ's decision). “Substantial evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). However, “[t]he substantial evidence standard is a very deferential standard of review-even more so than the clearly erroneous standard, and the Commissioner's findings of fact must be upheld unless a reasonable factfinder would have to conclude otherwise.” Banyai v. Berryhill, 767 Fed.Appx. 176, 177 (2d Cir. 2019), as amended (Apr. 30, 2019) (summary order) (emphasis in original) (citation and internal quotation marks omitted). If the findings of the Commissioner as to any fact are supported by substantial evidence, those findings are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995).
II. Determination Of Disability
A person is considered disabled for benefits purposes when he is unable “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).
An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In determining whether an individual is disabled, the Commissioner must consider: “(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam) (citations omitted).
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims:
(i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled.
(ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement . . . [continuous period of 12 months], or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled.
(iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in appendix 1 [(the “Listings”)] . . . and meets the duration requirement, we will find that you are disabled.
(iv) At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled.
(v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled.20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (internal citations omitted).
If it is determined that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not progress to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). After the first three steps (assuming that the claimant's impairments do not meet or medically equal any of the Listings), the Commissioner is required to assess the claimant's RFC “based on all the relevant medical and other evidence in [the claimant's] case record.” 20 C.F.R. §§ 404.1520(e), 416.920(e). A claimant's RFC is “the most [the claimant] can still do despite [the claimant's] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
The claimant bears the burden of proof as to the first four steps. Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). It is only after the claimant proves that he cannot return to work that the burden shifts to the Commissioner to show, at step five, that other work exists in the national and local economies that the claimant can perform, given the claimant's RFC, age, education and past relevant work experience. Id. at 51-52. If it is determined that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not progress to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The ALJ must apply a “special technique” at the second and third steps to evaluate alleged mental impairments. See Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). The special technique first requires the ALJ to assess the claimant's degree of functional limitation resulting from a mental impairment in four “broad functional areas” identified in the “paragraph B” of the adult mental disorders listings. See 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). Those four functional areas are: “[u]nderstand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and, adapt or manage oneself.” Id. §§ 404.1520a(c)(3), 416.920a(c)(3).
III. Regulations Regarding Consideration Of Medical Opinions And Prior Findings For Applications Filed On Or After March 27, 2017
Under the regulations applicable to Plaintiff's claim, the ALJ considers five factors in evaluating the persuasiveness of medical opinions: (1) supportability; (2) consistency; (3) relationship of the source with the claimant, including length of the treatment relationship, frequency of examination, purpose of the treatment relationship, extent of the treatment relationship and whether the relationship is an examining relationship; (4) the medical source's specialization; and (5) other factors, including but not limited to “evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of [the SSA] disability program's policies and evidentiary requirements.” 20 C.F.R. §§ 404.1520c(c), 416.920c(c). Using these factors, the most important of which are supportability and consistency, the ALJ must articulate “how persuasive [he] find[s] all of the medical opinions and all of the prior administrative medical findings in [the claimant's] case record.” Id. §§ 404.1520c(b), 416.920c(b).
With respect to the supportability factor, the regulations provide that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). As to the consistency factor, the regulations provide that “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id. §§ 404.1520c(c)(2), 416.920c(c)(2). While the ALJ “may, but [is] not required to, explain how [he] considered” the factors of relationship with the claimant, the medical source's specialization, and other factors, the ALJ “will explain how [he] considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings ....” Id. §§ 404.1520c(b)(2), 416.920c(b)(2) (emphasis added). An ALJ must provide sufficient explanation to allow a reviewing court to “trace the path of [the] adjudicator's reasoning[.]” Amber H. v. Saul, No. 20-CV-00490 (ATB), 2021 WL 2076219, at *6 (N.D.N.Y. May 24, 2021) (quoting Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed.Reg. 5844-01, at 5858 (Jan. 18, 2017) (“We expect that the articulation requirements in these final rules will allow a . . . reviewing court to trace the path of an adjudicator's reasoning[.]”)). An ALJ commits procedural error by failing to explain how he considered the supportability and consistency of medical opinions in the record. See Loucks v. Kijakazi, 2022 WL 2189293, at *2 (2d Cir. June 17, 2022). A reviewing court still may affirm if “a searching review of the record” assures it “that the substance of the [regulation] was not traversed.” Id. (quoting Estrella v. Berryhill, 925 F.3d 90, 96 (2d Cir. 2019)).
DISCUSSION
Plaintiff raises two grounds in support of remand: (1) that the ALJ erred in his evaluation of the opinions of Dr. Nunez, Dr. Popple and Dr. Hussain, and (2) that the ALJ “rendered a [RFC] finding not supported by medical opinions.” (Pl.'s Mem., ECF No. 14, at 15-25.) The Court considers each of these arguments in turn.
I. The ALJ's Evaluation Of The Medical Opinion Evidence
A. Dr. Nunez
The ALJ found that Dr. Nunez's opinion was not persuasive because the overall evidence in the record, including Dr. Nunez's own treatment notes, did not support the opined limitations and that his opinion was inconsistent with record evidence after February 2017 showing a relatively stable condition, including the treatment notes of other doctors in Dr. Nunez's office, i.e., Dr. Bello and Dr. Taveras. (R. 1008.)
With respect to the supportability factor, Plaintiff argues that the ALJ overlooked or ignored Dr. Nunez's statement that his opinion was supported by clinical interviews, past history (including psychiatric hospitalizations), and symptoms and instead focused on “a discrete, recent period of relative stability[.]” (Pl.'s Mem. at 17.) Plaintiff also argues that the treatment notes from Dr. Bello and Dr. Taveras supported Dr. Nunez's opinion, including clinical observations that Nunez experienced advances and setbacks and continued to require treatment. (Pl.'s Mem. at 17-19.) The Commissioner responds that the ALJ properly considered the supportability factor and that Plaintiff's argument amounts to a request to re-weigh the evidence. (Comm'r Mem., ECF No. 21, at 25-27.)
The ALJ did in fact consider treatment notes from Dr. Nunez, Dr. Bello and Dr. Taveras and found that they were not consistent with the significant limitations indicated by Dr. Nunez in his September 2019 opinion. (R. 1008; see also R. 1003-06 (discussing treatment notes).) Although there are some notes that document ongoing symptoms (see, e.g., R. 953, 970), treatment notes from November 2017 until May 2022 consistently show that Nunez was not experiencing the negative symptoms of schizophrenia, such as hallucinations, withdrawal and delusions, that Dr. Nunez pointed to in support of his opinion, or that he had decreased concentration and attention to the degree opined. (R. 1005-06 (discussing treatment notes).)
However, the Court agrees with Plaintiff that the ALJ's assessment of the supportability of Dr. Nunez's opinion did not properly consider Nunez's statement that his opinion was supported by past history and symptoms and instead focused on only a portion of the period at issue. Although the ALJ stated that the “overall evidence of record” did not support the opined limitations (R. 1008), he did not discuss how he considered evidence prior to February 2017 in evaluating Dr. Nunez's opinion or address whether the opinion was supported by evidence of Nunez's past history, including multiple hospitalizations.
The Commissioner argues that Nunez was not hospitalized during the period when he treated with Dr. Nunez or the other psychiatrists in the same office and, in any event, the ALJ considered Nunez's past hospitalizations and past history and found them to be inconsistent with Dr. Nunez's opinion. (Comm'r Mem. at 25-26.) The Commissioner's first point is inapt, as Dr. Nunez referred to past hospitalizations and indicated that the symptoms and limitations he discussed dated back to 2012. (R. 964.) As to the second point, the Commissioner is correct that in his RFC assessment the ALJ did discuss earlier treatment, including some unremarkable mental status examinations during the period prior to February 2017. (See R. 1006, 1008.) However, the ALJ did not explain how he considered this evidence in evaluating Dr. Nunez's opinion. Moreover, to the extent that the ALJ did consider earlier treatment notes, it was improper for him to rely on isolated, unremarkable examination findings prior to February 2017 without explaining how he considered other significant evidence that supported Dr. Nunez's opinion. See Anderson v. Kijakazi, 2022 WL 938115, at *8 (S.D.N.Y. Mar. 3, 2022), report and recommendation adopted, 2022 WL 925070 (S.D.N.Y. Mar. 29, 2022) (ALJ erred in relying on “mostly normal mental status examinations” to discount medical opinion when such interpretation was “far from obvious” and not supported by record); see also Loucks, 2022 WL 2189293, at *2 (explaining that mental status examinations only reveal the patient's mental state “at the time of the examination and do not consider symptoms the patient may experience outside of that brief period of time”). Notably, unlike the later part of the relevant period where Nunez's treatment records and mental status examinations were largely consistent, earlier records document multiple hospitalizations and frequent abnormal findings, including evidence of symptoms cited by Dr. Nunez in support of his opinion. (See, e.g., R. 319 (August 12, 2015); R. 302, 308, 310-13 (October 2015); R. 744, 756 (February 2016); R. 735-36 (March 2016 hospitalization); R. 335 (July 2016); R. 571, 595, 874, 1219 (January 2017).) Thus, the Court finds that the ALJ failed to adequately analyze Dr. Nunez's opinion under the supportability prong, at least with respect to the period prior to February 2017.
As to consistency, the ALJ found that Dr. Nunez's opinion was inconsistent with the fact that Nunez engaged in part-time work two days per week and engaged in other activities such as taking trips and going to the gym. (R. 1008.) However, the ALJ did not address the consistency of Dr. Nunez's opinion with medical evidence from earlier in the relevant period. Accordingly, the Court finds that the ALJ committed procedural error by failing to adequately explain how he considered the supportability and consistency of medical opinions in the record. See Loucks, 2022 WL 2189293, at *2.
The Court also finds that the ALJ's failure to address supportability and consistency with respect to the entire period at issue was not harmless since a finding of greater limitations as opined by Dr. Nunez, even if only for a limited closed period, could result in a determination that Nunez was unable to work. See Leto v. Comm'r of Soc. Sec., No. 22-CV-00863 (SDA), 2023 WL 2344936, at *16 (S.D.N.Y. Mar. 3, 2023) (procedural error not harmless where finding of greater limitations could result in determination that plaintiff was unable to work); see also Sawicki v. Comm'r of Soc. Sec., No. 21-CV-02093 (LJL), 2023 WL 5164212, at *11 (S.D.N.Y. Aug. 11, 2023).
“A ‘closed period' of disability occurs where a claimant is found by the Commissioner to be disabled for a finite period of time which began and ended prior to the date of the agency's administrative determination of disability.” Williams v. Kijakazi, No. 20-CV-08469 (JLC), 2022 WL 799478, at *20 (S.D.N.Y. Mar. 16, 2022).
B. Dr. Popple
In evaluating Dr. Popple's opinion, the ALJ did not explicitly consider the supportability factor but explained that he found Dr. Popple's opinion unpersuasive because it was inconsistent with other evidence in the record. (R. 1009.) With respect to consistency, the ALJ again relied primarily on evidence after February 2017, but did discuss Nunez's prior hospitalizations. (Id.) The ALJ noted that the hospitalizations occurred in the context of Nunez's refusal to take psychotropic medications and active use of cannabis. (Id.) However, the ALJ did not explain how this context undermined Dr. Popple's findings. (Id.) Indeed, intermittent compliance with medication can support limitations such as those opined by Dr. Popple. See Faure v. Comm'r of Soc. Sec., No. 22-CV-01571 (KHP), 2023 WL 5013282, at *12 (S.D.N.Y. Aug. 7, 2023) (finding intermittent noncompliance with medication regimen supported moderate to marked limitation in regulating emotions, controlling behavior and maintaining well-being); see also Frankhauser v. Barnhart, 403 F.Supp.2d 261, 277-78 (W.D.N.Y. 2005) (psychological and emotional difficulties may deprive claimant of “rationality to decide whether to continue treatment or medication”). Moreover, as discussed above, it was improper for the ALJ to rely on isolated unremarkable mental status examinations by Dr. Ibanez without addressing the numerous abnormal findings during the same time period. Dr. Popple himself recognized that some of his findings were inconsistent with the earlier consultative evaluation, but noted that it appeared that Nunez was underreporting. (R. 810.) Thus, the Court finds that the ALJ also committed procedural error in evaluating Dr. Popple's opinion.
Although there was procedural error, it is a closer question as to whether this error was harmless. Dr. Popple primarily found that Nunez had moderate limitations, except he opined that Nunez had “moderate to marked impairments” in his ability to interact adequately with supervisors, coworkers and the public, as well as a marked limitation in his ability to regulate emotions, control behavior and maintain well-being.(R. 810.) “The Second Circuit has repeatedly held that ‘moderate' limitations do not preclude a plaintiff's ability to perform unskilled work.” Miller v. Comm'r of Soc. Sec., No. 22-CV-02527 (SDA), 2023 WL 4363004, at *12 (S.D.N.Y. July 6, 2023) (citing cases). Further, some courts have found that even marked limitations in a claimant's ability to adapt and manage himself properly can be accounted for with non-exertional limitations similar to the ones the ALJ imposed here. See Diaz v. Comm'r of Soc. Sec. Admin., No. 22-CV-02256 (KMK) (VR), 2023 WL 6390172, at *6 (S.D.N.Y. Sept. 29, 2023) (discussing cases); see also Hill v. Comm'r of Soc. Sec., No. 18-CV-01161, 2020 WL 836386, at *4-5 (W.D.N.Y. Feb. 20, 2020) (finding that limitation to simple and routine tasks, simple work-related decisions and only occasional interaction with others adequately accommodated marked limitations in claimant's ability to adapt and manage oneself). In any event, the Court need not decide this issue because I find that remand is warranted for the ALJ to further consider Dr. Nunez's opinion as set forth above.
“Regulating emotions, controlling behavior, and maintaining well-being are abilities within the mental functioning area of ‘adapt or manage oneself.'” Christina D. v. Comm'r of Soc. Sec., No. 21-CV-00162 (JLS), 2023 WL 5604199, at *4 (W.D.N.Y. Aug. 30, 2023) (citing 20 C.F.R. § 416.920a(c)(3); 20 C.F.R. § 404 Subpt. P, App. 1, 12.00A(E)(4)).
C. Dr. Hussain
The ALJ also found that Dr. Hussain's opinion was not persuasive for largely the same reasons as those relating to Dr. Popple. (R. 1010-11.) Although the Court agrees with Plaintiff that the ALJ committed some of the same procedural errors discussed above, the Court also agrees with the Commissioner (see Comm'r Mem. at 29) that any error in the ALJ's assessment of Dr. Hussain's opinion was harmless, since he opined that Nunez had no more than moderate limitations, which are consistent with the ALJ's RFC determination. See Miller, 2023 WL 4363004, at *12.
II. The ALJ's RFC Determination
As a second ground for remand, Plaintiff argues that the ALJ's RFC determination is not supported by any medical opinion. (Pl.'s Mem. at 23-25.) The RFC “is an administrative finding, not a medical one.” Christopher H. v. Comm'r of Soc. Sec., No. 20-CV-01463 (DB), 2022 WL 2109180, at *4 (W.D.N.Y. June 10, 2022); see also 20 C.F.R. § 404.1527 (indicating that “the final responsibility for deciding these issues [including RFC] is reserved to the Commissioner”). Thus, as the Commissioner argues, the ALJ's RFC determination need not perfectly correspond to any single medical opinion in the record. (Comm'r Mem. at 22-24.) Rather, an ALJ is tasked with weighing the evidence in the record and reaching an RFC finding based on the record as a whole, see Tricarico v. Colvin, 681 Fed.Appx. 98, 101 (2d Cir. 2017), and it is within the ALJ's discretion to resolve genuine conflicts in the evidence. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). Accordingly, Plaintiff's argument is without merit. Plaintiff does not argue that the ALJ's RFC determination was not supported by substantial evidence. In any event, because I recommend that the Court remand this action for the ALJ to further consider the medical opinion evidence, the Court need not address the ALJ's RFC determination. See Brown v. Comm'r of Soc. Sec., No. 21-CV-02641 (BCM), 2022 WL 4537975, at *8 (S.D.N.Y. Sept. 28, 2022) (“Where, as here, the medical opinion evidence in the record was not properly analyzed, and the error was not harmless, the court cannot conclude that the ALJ's RFC formulation was supported by substantial evidence.”).
CONCLUSION
For the reasons set forth above, I respectfully recommend that this action be remanded for further administrative proceedings. On remand, I recommend that the ALJ consider whether Nunez is entitled to disability benefits for any closed, continuous period of not less than 12 months after the June 15, 2015 alleged onset date. See Otero v. Kijakasi, No. 20-CV-07612 (VEC) (DF), 2022 WL 1051164, at *19 n.11 (S.D.N.Y. Mar. 1, 2022), report and recommendation adopted, No. 20-CV-7612 (VEC), 2022 WL 951061 (S.D.N.Y. Mar. 30, 2022) (“When deciding a disability claim, if a claimant is disabled at any point in time, the ALJ should consider not only whether Plaintiff was disabled at the time of the hearing, but also whether Plaintiff was entitled to disability benefits for any closed, continuous period of not less than 12 months, following the date of [his] claim.” (quoting Sandra Lee M. v. Comm'r of Soc. Sec., 541 F.Supp.3d 277, 283 (W.D.N.Y. 2021))); see also Williams, 2022 WL 799478, at *20; Samantha D. v. Comm'r of Soc. Sec., No. 18-CV-01280 (ATB), 2020 WL 1163890, at *10 (N.D.N.Y. Mar. 11, 2020).
In his June 29, 2022 decision, the ALJ noted the claimant's representative reference in his opening statement at the June 10, 2022 hearing of “the potential for a closed period of disability from the alleged onset date through September 2018.” (R. 999.)
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from 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. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. 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 Vyskocil.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 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).