On May 15, 2013, Mark Restuccia ("Restuccia" or "Plaintiff")) filed a complaint against Carolyn W. Colvin, the Acting Commissioner of Social Security ("Commissioner" or "Defendant"), pursuant to Sections 205(g) and 1631(c) (3) of the Social Security Act ("Social Security Act"), 42 U.S.C. §§ 405(g) and 1383(c)(3). Restuccia seeks review of the February 15, 2013 decision of Administrative Law Judge ("ALJ") Katherine Edgell which denied Plaintiff's application for disability insurance benefits for lack of disability ("February 2013 Decision"). (See Compl., dated May 15, 2014 ("Compl."), ¶¶ 1-2.) The Complaint alleges that "[t]he conclusions and findings of fact of the [ALJ] are not supported by substantial evidence and are contrary to law and regulation" and requests that the Court "find that plaintiff is entitled to Disability Benefits under the provisions of the Social Security Act; or . . . remand the case for a further hearing." (Id. ¶ 11.)

The Court is disturbed by the inefficient (and, respectfully, also ineffective) handling of this case by the Social Security Agency ("SSA"). As noted below, this is Restuccia's third district court complaint seeking review of the Commissioner's denial of disability benefits to him.

Prior Proceedings

Restuccia first filed an application for disability benefits on April 3, 2006, alleging that he became disabled on September 21, 2005 while working as a foreman at his family's construction company. (Social Security Administrative Record ("A.R.") (Dkt. # 10) at 94-98.) He claimed that he was unable to work principally "due to back + heart problems." (Id. at 100.) On October 18, 2006, ALJ Dennis Katz determined that Restuccia was "not disabled under sections 216(i) and 223(d) of the Social Security Act." (Id. 807.) Restuccia successfully appealed to the Appeals Council of the Office of Disability Adjudication and Review ("Appeals Council"), which vacated the October 18, 2006 decision and remanded the case back to ALJ Katz for further proceedings. (A.R. 77-81.) ALJ Katz considered the case de novo and issued his second decision, dated March 14, 2008, which (again) denied Restuccia's claim for benefits. (A.R. 15-29.) Restuccia appealed to the Appeals Council but this appeal was denied. (Id. at 4-10, 14.) On November 25, 2008, Restuccia filed a civil complaint in this Court seeking review of ALJ Katz's March 14, 2008 decision pursuant to 42 U.S.C. § 405(g). At the request of the parties, on April 24, 2009, the Court entered a Stipulation and Order remanding the case to the Commissioner for further administrative proceedings. (See Restuccia v. Astrue, 08-cv-10256, Complaint, dated Nov. 25, 2008; Stipulation & Order, dated Apr. 24, 2009.)

The Social Security Act defines "disability," in relevant part, as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. 423(d)(1)(A). The Social Security Agency's regulations further provide that, in order to meet the statutory definition of "disability," a claimant "must have a severe impairment, which makes you unable to do your previous work or any other substantial gainful activity which exists in the national economy." 20 C.F.R. §404.1505.

Following the April 24, 2009 Stipulation and Order, the Appeals Council "vacate[d] the final [March 14, 2008] decision of the [ALJ] and remand[ed] th[e] case to an Administrative Law Judge for further proceedings," including "the opportunity for a hearing." (A.R. 784-86.) A hearing took place on November 23, 2010 before ALJ Katherine Edgell (A.R. 450-89) and, on January 19, 2011, ALJ Edgell issued a decision finding that Restuccia was not disabled. (Id. 765-81.) Restuccia did not appeal this decision to the Appeals Council.

On May 13, 2011, Restuccia filed another civil complaint in this Court seeking review of the ALJ's January 19, 2011 decision. And, on November 18, 2011, at the request of the parties, the Court again entered a Stipulation and Order remanding the case to the Commissioner for further administrative proceedings. (See Restuccia v. Astrue, 11-cv-3276, Complaint, dated May 13, 2011; Stipulation & Order, dated Nov. 18, 2011.) Pursuant to the Court's November 18, 2011 Stipulation and Order, the Appeals Council "vacate[d] the final [January 19, 2011] decision of [ALJ Edgell] and remand[ed] th[e] case to an Administrative Law Judge for further proceedings," including "the opportunity for a hearing." (A.R. 1513-14.) A new hearing was held before ALJ Edgell on January 15, 2013 with Restuccia present and represented by an attorney. (See id. at 1783-1834.) At the hearing, the ALJ heard testimony from Restuccia and from two third parties, namely Dr. Chukwuemeka Efobi, an "impartial medical expert" who provided his opinion as to the severity of Restuccia's "medically determinable mental impairments" (id. at 1506), and Esperanza Distefano, a "vocational expert" who testified on the issue of "whether jobs existed in the national economy for an individual with [Restuccia's] age, education, work experience, and residual functional capacity." (Id. at 1508.)

Restuccia's testimony consisted principally of questions and answers with the ALJ. (See A.R. 1786-92.)

On February 15, 2013, the ALJ issued her decision, which concluded that Restuccia "was not under a disability, as defined by the Social Security Act at any time from September 21, 2005, the alleged onset date, through December 31, 2010, the date last insured." (Id. at 1508.) In reaching this conclusion, the ALJ followed the "five-step sequential evaluation process" mandated by SSA regulations to determine a claimant's disabled status, as follows:

Restuccia does not contest the ALJ's finding that the relevant period is from September 21, 2005, the alleged onset date of Restuccia's disability, through December 31, 2010, the last date on which he met the insured status requirements of the Social Security Act. See 20 C.F.R. § 404.130.

1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a "severe impairment" which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a "severe impairment," the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not "listed" in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. The Commissioner bears the burden of proof on this last step, while the claimant has the burden on the first four steps.

Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (emphasis added); see 20 C.F.R. § 404.1520(a)(4).

The relevant impairments are listed in 20 C.F.R. § 404 Subpart P, Appendix 1. See also 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526.

At the first step, the ALJ determined that Restuccia "did not engage in substantial gainful activity" during the period of his insurability. (A.R. 1495.)

At the second step, the ALJ found that Restuccia "had the following severe [physical and mental] impairments: obesity status post bariatric surgery, hypertension, aortic aneurysm, mild aortic root dilation, Hepatitis C infection, diabetes mellitus, degenerative disc disease of the lumbar spine with radiculopathy, anxiety, polysubstance abuse . . . and an affective disorder variously characterized as major depression, bipolar disorder and schizoaffective disorder." (Id. at 1495-96.) The ALJ noted that there had been a "diagnosis of obstructive airway disease . . . [but that] physical examinations consistently failed to yield evidence of any respiratory abnormalities." (Id. at 1496)

At the third step, the ALJ found that Restuccia "did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1." (Id.)

Prior to proceeding to the fourth step of the analysis, the ALJ made a determination of Restuccia's residual functional capacity, which is defined by SSA regulations as "the most [the disability claimant] can still do despite [his or her] limitations." 20 C.F.R. § 404.1545(a)(1). The ALJ concluded that Restuccia "had the residual functional capacity to perform sedentary work requiring frequent lifting or carrying of up to ten pounds, sitting for six hours and standing or walking for a total of up to two hours during an eight-hour workday." (Id. at 1498.)

Pursuant to SSA regulations, the ALJ is required to "assess [a claimant's] residual functional capacity" between step three and step four of the five-step process. 20 C.F.R. § 404.1520(a)(4).

The ALJ also concluded, based upon "the objective medical evidence" and "opinion evidence" regarding Restuccia's mental impairments, that Restuccia "was limited to unskilled work requiring only occasional interaction with others." (Id.) The ALJ made this determination based upon her analysis of the four "functional areas" identified in SSA regulations: (1) "activities of daily living," (2) "social functioning," (3) "concentration, persistence, or pace," and (4) "episodes of decompensation." 20 C.F.R. § 404.1520a (c)(4). She found that Restuccia had only a "mild" limitation in activities of daily living, a "moderate" limitation in social functioning, a "mild" limitation in concentration, persistence, or pace, and "only one episode of decompensation, which occurred in March 2010." (A.R. 1503-04.)

Restuccia's treating psychiatrist, Dr. Muthaiah Chandrasekhara, had opined on November 8, 2010 that Restuccia "had marked [(as opposed to mild)] limitations in concentration, persistence, or pace." But the ALJ gave Dr. Chandrasekhara's opinion "little weight," presumably because "Dr. Chandrasekhara's opinion [was] inconsistent with his own benign observations of the claimant, which showed him to be alert and oriented, with intact attention, concentration and memory." (Id. at 1506.) The ALJ also found that Dr. Chandrasekhara's opinion was "inconsistent with the psychiatrist's own assessment of the claimant's GAF [(Global Assessment of Functioning)] score showing only mild limitations." (Id.) The ALJ gave "most weight to the opinion of impartial medical expert Dr. Chukwuemaka Efobi," who testified that Restuccia has only "mild limitations in concentration, persistence, or pace." (Id.)

The SSA defines "marked" as "more than moderate but less than extreme" and is used to describe a "degree of limitation [that] interfere[s] seriously with your ability to function independently, appropriately, effectively, and on a sustained basis." 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00C.

At the fourth step, the ALJ determined that, given his residual functional capacity, Restuccia was "unable to perform any past relevant work [as a construction worker]" because such work would require a "medium to heavy level of exertion." (Id. at 1507.)

At the fifth step, the ALJ determined that "there were jobs that existed in significant numbers in the national economy that the claimant could have performed." (Id. at 1508.) The ALJ based this determination upon the following hypothetical question posed at the hearing to Esperanza Distefano, the Vocational Expert:

If I was to posit for you someone of this vocational profile, of a person who was limited to lifting, carrying up to 10 pounds occasionally; stand and walk a total of six hours per day; no limitations indicated in sitting and other exertionals; and is limited to only occasional interaction with the public or co-workers. Any jobs?

(Id. at 1825.) The Vocational Expert responded that such a (hypothetical) person would be able to work as an "addresser," "document preparer," or "cuff folder," and that such jobs "existed in significant numbers in the national economy." (Id. at 1825-26, 1508.) Having determined that "there were jobs that existed . . . that the claimant could have performed," the ALJ concluded that Restuccia "was not under a disability . . . from September 21, 2005 . . . through December 31, 2010." (Id. at 1508.)

The ALJ's decision became final on March 17, 2013, because Plaintiff did not file a timely appeal with the Appeals Council. Plaintiff now seeks review of the ALJ's February 2013 Decision.

The Parties' Cross-Motions

On November 18, 2013, Restuccia filed a motion for judgment on the pleadings, arguing that the February 2013 Decision of the ALJ should be set aside because, among other things, (i) the ALJ "perform[ed] no analysis regarding the effect that Obesity [sic] has on Mr. Restuccia"; (ii) "the Commissioner failed to consider the combined effect of all of Mr. Restuccia's impairments," including his "sleep apnea and restrictive airway disease"; (iii) the ALJ failed to assign "controlling weight" to the opinion of Restuccia's treating psychiatrist, Dr. Chandrasekhara; and (iv) "[t]he testimony of the VE [vocational expert] on which the ALJ relies . . . is not supported by substantial evidence because it is the product of an incomplete hypothetical [question]." (Pl.'s Mem. of Law in Supp. of Mot. for Judgment on the Pleadings, dated November 18, 2013 ("Pl. Mem."), at 9, 12-13, 15, 20.)

On December 26, 2013, Defendant filed a cross-motion for judgment on the pleadings and opposition to Restuccia's motion, contending that the February 2013 Decision "is legally correct and supported by substantial evidence," and that "the Court should affirm the decision and dismiss [Restuccia's] action." (Mem. of Law in Supp. of Def.'s Cross-Mot. for Judgment on the Pleadings and in Opp'n to Pl.'s Mot. for Judgment on the Pleadings, dated December 26, 2013 ("Def. Mem"), at 1).) The Commissioner argues, among other things, that: (i) "the ALJ relied on medical opinions from the examining and treating sources who were aware of Plaintiff's obesity, and thus the ALJ did not ignore the impact of Plaintiff's obesity on his ability to work"; (ii) "the [ALJ's] decision reflects a careful consideration of the combined impact of Plaintiff's impairments"; (iii) "the ALJ properly declined to accord significant weight to Plaintiff's treating source, Dr. Chandrasekhar[a], because it was inconsistent with [his] own reports that Plaintiff had mild limitations and was generally stable throughout the time [he] saw Plaintiff"; and (iv) "substantial evidence supported the residual functional capacity used in the ALJ's hypothetical question posed to the vocational expert." (Def. Mem. at 20-21, 25; Reply Mem. of Law in Supp. of Def.'s Cross-Motion, dated Jan. 28, 2014 ("Def. Reply"), at 2-3.)

On January 14, 2014, Restuccia filed a reply. (See Reply Mem. of Law in Opp'n to Def.'s Cross-Motion, dated Jan. 14, 2014 ("Pl. Reply").) On January 28, 2014, the Commissioner filed a reply. (See Def. Reply.) The parties waived oral argument. (Hr'g Tr., dated June 6, 2013, at 4:10-11.)

For the reasons set forth below, Restuccia's motion is granted and the Commissioner's cross-motion is denied.

Any issues raised by the parties not specifically addressed herein were considered and rejected on the merits.

II. Legal Standard

"A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by 'substantial evidence' or if the decision is based on legal error." Shaw v. Chater, F.3d 126, 131 (2d Cir. 2000). Substantial evidence is "[m]ore than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. N.L.R.B., 305 U.S. 197, 217 (1938)).

III. Analysis

(i) Obesity

Plaintiff argues that the ALJ "performs no analysis regarding the effect that Obesity [sic] has on Mr. Restuccia." (Pl. Mem. at 9.) Defendant counters that "the ALJ relied on medical opinions from the examining and treating sources who were aware of Plaintiff's obesity, and thus the ALJ did not ignore the impact of Plaintiff's obesity." (Def. Mem. at 20.)

The ALJ considered the effect of Restuccia's obesity on his ability to function in the workplace. (A.R. 1506 ("the objective medical evidence of record show[s] that the claimant was morbidly obese and had a documented aortic aneurysm, both of which would appear to limit him to the exertional demands of sedentary work."); see also id. at 1495 ("the claimant had the following severe impairments: obesity status post bariatric surgery . . . .").) The ALJ also stated: "Although there is no listed impairment that pertains to obesity, the undersigned has considered this impairment." (Id. at 1498.)

And, the ALJ "implicitly factored [Restuccia]'s obesity into [her] RFC determination by relying on medical reports that repeatedly noted [Restuccia]'s obesity and provided an overall assessment of [his] work-related limitations." Drake v. Astrue, 443 F. App'x. 653, 657 (2d Cir. 2011). In analyzing Restuccia's physical limitations, the ALJ relied heavily upon conclusions drawn by Dr. Suraj Malhotra, who made written note of Restuccia's obesity in his medical report. (See A.R. 1505-06; id. at 1385 ("Diagnosis . . . Obesity").) The ALJ also relied upon the 2005 opinion of Dr. Jonathan Castro, Restuccia's treating physician, who made note of Restuccia's weight. (Id. at 241.) See Talavera v. Astrue, 500 F. App'x. 9, 11 (2d Cir. 2012 (where "several of Talavera's treating and examining physicians—all of whom were aware of her obesity—concluded that her weight only imposed mild limitations on her functional abilities"); Guadalupe v. Barnhart, 04 Civ. 7644, 2005 WL 2033380, at *5 (S.D.N.Y. Aug. 24, 2005) ("When an ALJ's decision adopts the physical limitations suggested by reviewing doctors after examining the Plaintiff, the claimant's obesity is understood to have been factored into their decisions.").

(ii) Combined Effect of Plaintiff's Impairments

Plaintiff contends that "the Commissioner failed to consider the combined effect of all of Mr. Restuccia's impairments" (Pl. Mem. at 12.), including his "sleep apnea and restrictive airway disease." (Id. at 13.) Defendant responds that "the [ALJ's] decision reflects a careful consideration of the combined impact of Plaintiff's impairments," because "Dr. Gomez, who treated the sleep apnea, reported that Plaintiff had an excellent response to treatment" and because "the ALJ specifically addressed obstructive airway disease finding that it was non-severe." (Def. Mem. at 21; Def. Reply at 2-3.)

"[T]he combined effect of a claimant's impairments must be considered in determining disability, that is, the SSA must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe." Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995). In this case, the ALJ explicitly considered, based upon objective and opinion evidence, the combined impact of Restuccia's impairments, and concluded that Restuccia "did not have an impairment or combination of impairments that met . . . one of the listed impairments," and that "claimant's mental impairments . . . singly and in combination did not meet . . . the criteria . . . ." (A.R. 1496-97.)

The ALJ explicitly considered Restuccia's alleged obstructive airway disease in her decision. The ALJ stated that, while "the record further reflects a diagnosis of obstructive airway disease rendered in connection with pulmonary function testing performed on September 15, 2010," Restuccia "received no ongoing treatment for this impairment prior to his date last insured and physical examinations consistently failed to yield evidence of any respiratory abnormalities such as rhonchi, wheezing or rales." (A.R. 1496.) The ALJ concluded that "there is no evidence of a severe respiratory impairment prior to the date last insured." (Id.) See Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d Cir. 2013) ("The ALJ's finding that Cichocki's bipolar disorder did not cause more than 'minimal limitation in the claimant's ability to perform basic mental work activities' further undermines the suggestions that the ALJ failed to consider this condition . . . .").

Restuccia does not point to any evidence overlooked by the ALJ in this regard, nor does he appear to contest the ALJ's factual determinations.

Although the ALJ did not explicitly consider Restuccia's sleep apnea diagnosis, this omission does not constitute grounds for remand or reversal because the record evidence demonstrates that Restuccia's sleep apnea did not prevent him from working. Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) ("When . . . the evidence of record permits us to glean the rationale of an ALJ's decision, we do not require that he have mentioned every item of testimony presented to him or have explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.") Dr. Gomez, who treated Plaintiff's sleep apnea in 2009, found that Restuccia had an "excellent response" to treatment and recommended only that Plaintiff "avoid driving and/or operation of heavy machinery while sleepy." (Id. at 1138.)

(iii) Treating Physician

Restuccia argues that the ALJ failed to assign controlling weight to the opinion of Restuccia's treating psychiatrist, Dr. Chandrasekhara. (Pl. Mem. at 21.) The Commissioner responds that "the ALJ properly declined to accord significant weight to Plaintiff's treating source, Dr. Chandrasekhara, because it was inconsistent with [his] own reports that Plaintiff had mild limitations and was generally stable throughout the time [he] saw Plaintiff." (Def. Mem. at 21.)

The opinion of a claimant's treating physician as to the nature and severity of the claimant's impairment is given "controlling weight" so long as it is well-supported by "medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(2)). Where, as here, an ALJ gives a treating physician opinion something less than controlling weight, she must provide good reasons for doing so. Sanders v. Commissioner of Social Sec., 506 F. App'x. 74, 77 (2d Cir. 2012) (internal quotation marks omitted). The Second Circuit "has consistently held that the failure to provide good reasons for not crediting the opinion of a claimant's treating physician is a ground for remand." Id.; see also Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (per curiam) ("We do not hesitate to remand when the Commissioner has not provided 'good reasons' for the weight given to a treating physicians [sic] opinion and we will continue remanding when we encounter opinions from ALJs that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion.").

In determining Restuccia's residual functional capacity prior to the fourth step of the disability analysis, the ALJ concluded, with respect to the category of "concentration, persistence, or pace," that Dr. Chandrasekhara's assessment that Restuccia's limitations were "marked" in his November 8, 2010 opinion should be given "little weight." She, instead, determined that Restuccia's limitations in this category were "mild," i.e. significantly less severe than Dr. Chandrasekhara had opined. (Id. 1503, 1506.)

With respect to the other three SSA functional categories, Dr. Chandrasekhara's November 8, 2010 opinion stated that Restuccia's functional limitations were "none to mild" for the category of "activities of daily living," "none to mild" for "social functioning," and that Restuccia had experienced "one or two" episodes of decompensation. (A.R. 1127.)

The Court concludes that the ALJ failed to provide "good reasons" for setting aside Dr. Chandrasekhara's opinion, particularly with respect to his assessment of "marked" limitations in the area of concentration, persistence, or pace. First, the ALJ stated that "Dr. Chandrasekhara's opinion that the claimant had marked limitations in concentration, persistence, or pace is inconsistent with his own benign observations of the claimant, which showed him to be alert and oriented, with intact attention, concentration and memory." (Id. 1506.) The ALJ failed, however, to identify, quote or provide citations in the record to the specific inconsistent observations of Dr. Chandrasekhara that purportedly contradicted his November 8, 2010 opinion. See Halloran, 362 F.3d at 33 ("ALJs [must] comprehensively set forth reasons for the weight assigned to a treating physician's opinion"); Ryszetnyk v. Astrue, No. 12-CV-2431, 2014 WL 2986700, at *10 (E.D.N.Y. July 1, 2014) (where "the ALJ fail[ed] to mention where in Dr. Goodman's other treatment notes a finding supportive of a capacity for medium work is discussed [and] [a]ccordingly, identifying a point of internal contradiction").

Second, the ALJ concluded that Dr. Chandrasekhara's opinion was "inconsistent with the psychiatrist's own assessment of the claimant's GAF score showing only mild limitations." (A.R. 1507.) While Dr. Chandrasekhara concluded that Restuccia's GAF score was "60-65"—which may reflect either "mild" or "moderate" symptoms (see Diagnostic and Statistical Manual of Mental Disorders, 4th Ed. (American Psychiatric Ass'n 1994) at 32)—the SSA has stated that a claimant's GAF score "does not have a direct correlation to the severity requirements in [the SSA's] disorders listings." Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injuries, 65 Fed. Reg. 50746, 50764-5 (2000); see DeBoard v. Comm'r of Soc. Sec., 211 F. App'x. 411, 415 (6th Cir. 2006) ("[T]he Commissioner has declined to endorse the [GAF] score for use in the Social Security . . . disability programs, and has indicated that [GAF] scores have no direct correlation to the severity requirements of the mental disorders listings."). Moreover, "the most recent [2013] edition of the Diagnostic and Statistical Manual of Mental Disorders, the professional standard handbook for mental health diagnosis, has dropped the use of the [GAF] scale." Mainella v. Colvin, No. 13-cv-2453, 2014 WL 183957, at *5 (E.D.N.Y. Jan. 14, 2014).

The Court is not persuaded that the (impartial expert) opinion of Dr. Efobi—that Restuccia had only "mild" limitations in concentration, persistence, or pace—justifies the ALJ's decision to disregard Dr. Chandrasekhara's opinion. (See Def. Mem. at 22.) The ALJ did not mention Dr. Efobi's opinion in her discussion of the weight accorded to Dr. Chandrasekhara's opinion. (See A.R. 1506-07.) In any case, "not all expert opinions rise to [a] level . . . that is sufficiently substantial to undermine the opinion of [a] treating physician." Burgess, 537 F.3d at 128. For example, the United States Court of Appeals for the Second Circuit has found an expert's opinion to be "not substantial," where "the expert was a consulting physician who did not examine the claimant and relied entirely on an evaluation by a non-physician reporting inconsistent results." Id.

Dr. Efobi did not examine Restuccia. And, his opinion with respect to Restuccia's limitations in concentration appears to have been based entirely upon a single consultative evaluation by Dr. Leslie Helprin in 2006. (See A.R. 1803 (Dr. Efobi referencing Dr. Helprin's evaluation), 702 (Dr. Helprin's evaluation).) Dr. Helprin had stated that Restuccia's attention and concentration were "intact" because "he was able to count 1 to 10 forward and backward, do simple calculations, and serial 3s [counting down from the number 100 by intervals of three]." (Id. at 702.) Dr. Helprin's evaluation of Restuccia's attention and concentration appears to have focused solely upon Restuccia's short-term attention span. It does not adequately address the SSA category of "concentration, persistence, or pace," which is defined as "the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(3).

In sum, the Court concludes that the ALJ did not have a sufficient basis for not according controlling weight to Dr. Chandrasekhara's opinion that Restuccia's functional limitations were "marked" in the area of concentration, persistence, and pace. The ALJ's (legally) erroneous finding of "mild" limitations in this area appears to have colored her determination of Restuccia's residual functional capacity. Thus, the case must (again) be remanded to the ALJ for further proceedings. See Halloran, 362 F.3d at 33 ("[W]e will continue remanding when we encounter opinions from ALJs that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion."); Medina v. Barnhart, No. 03 Civ. 0079, 2004 WL 487310, at *9 (S.D.N.Y. March 11, 2004) ("Given the [Vocational Expert's] reliance on the ALJ's definition of that residual functional capacity (in his initial and modified hypothetical) and given the ALJ's reliance on the [Vocational Expert's] testimony in finding that plaintiff was able to perform substantial gainful activity, the ALJ's failure to provide 'good reasons' for not fully crediting [the treating physician's] opinion provides grounds for remand.").

The ALJ's residual functional capacity determination, in turn, also influenced the hypothetical question she posed to the Vocational Expert at the fifth step of the disability analysis. (See infra pp. 16-17.) --------

Upon remand, the ALJ should—at long last—adopt Dr. Chandrasekhara's (treating physician) opinion or provide legally sufficient reasons for not doing so.

(iv) Vocational Expert Testimony/ALJ's Hypothetical

Restuccia argues that the testimony of the vocational expert on which the ALJ relied at step five of the disability analysis is not supported by substantial evidence because it is the product of an incomplete hypothetical that fails to include all of Plaintiff's mental limitations. (Pl. Mem. at 15.) Defendant responds that "[t]he ALJ's reliance on the vocational expert's testimony was proper in this case . . . substantial evidence supported the residual functional capacity used in the ALJ's hypothetical question posed to the vocational expert." (Def. Mem. at 25.)

An ALJ may rely on a vocational expert's testimony regarding a hypothetical as long as there is substantial record evidence to support the assumptions upon which the vocational expert based his opinion, and accurately reflect the limitations and capabilities of the claimant. McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (internal citations omitted). The ALJ's hypothetical posed to the Vocational Expert at the fifth step of the disability analysis was based upon the ALJ's determination of Restuccia's residual functional capacity ("limited to unskilled work requiring only occasional interaction with others"), which, in turn, incorporated the ALJ's insufficiently supported conclusion that Restuccia suffered from "mild," rather than "marked" limitations in the area of concentration, persistence or pace. (See A.R. 1508 ("[T]he Administrative Law Judge asked the vocational expert whether jobs existed in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity."); supra at pp. 12-16.) The ALJ's hypothetical did not accurately reflect Restuccia's limitations in the area of concentration, persistence or pace, and a remand is necessary. See Clark v. Astrue, No. 08 Civ. 10389, 2010 WL 3036489, at *6 (S.D.N.Y. Aug. 4, 2010) ("As a result, the hypothetical question posed to the [Vocational Expert] is insufficient to prevent remand because it made use of a determination of Plaintiff's residual functional capacity that was based on legal error.").

On remand, the ALJ should also reconsider step five of the disability analysis.

IV. Conclusion & Order

For the foregoing reasons, Restuccia's motion [#15] is granted and the Commissioner's cross-motion [#20] is denied.

Dated: New York, New York

September 22, 2014

/s/ _________

RICHARD M. BERMAN, U.S.D.J.

Restuccia v. Colvin

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Restuccia v. Colvin

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Restuccia v. Colvin

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Restuccia v. Colvin

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