White v. Berryhill

Full title: GERALD WHITE, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of…

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Mar 6, 2019

17cv04254 (PKC) (DF) (S.D.N.Y. Mar. 6, 2019)

Opinion

17cv04254 (PKC) (DF)

03-06-2019

GERALD WHITE, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

DEBRA FREEMAN United States Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE P. KEVIN CASTEL, U.S.D.J.:

Pro se plaintiff Gerald White ("Plaintiff") seeks review of the final decision of defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration ("Defendant" or the "Commissioner"), denying Plaintiff Supplemental Security Income ("SSI") under the Social Security Act (the "Act"), on the ground that, for the relevant period, Plaintiff's impairments did not constitute a disability under the Act. Currently before this Court is the Commissioner's motion, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings affirming the Commissioner's decision. (Dkt. 15.)

For the reasons set forth below, I respectfully recommend that the Commissioner's motion be denied, and that this case be remanded for further administrative proceedings.

BACKGROUND ¹

1 The background facts set forth herein are taken from the Social Security Administration ("SSA") Administrative Record (Dkts. 9, 14) (referred to herein as "R." or the "Record").

Plaintiff filed an application for SSI benefits on March 31, 2014. (R. at 10, 175-78.) In his application, Plaintiff alleged a disability onset date of November 1, 2013, based on his having human immunodeficiency virus ("HIV") and depression. (Id. at 175, 180.) His claim was denied on May 14, 2014, and, through his then attorney, Plaintiff requested a hearing before an administrative law judge ("ALJ"). (Id. at 81, 85-87.) On March 4, 2016, Plaintiff, represented by counsel, appeared at a hearing before ALJ Jack Russak. (Id. at 27.) Vocational Expert ("VE") Michele Erbacher also appeared at the hearing (the "Hearing").² (Id.) At the Hearing, both Plaintiff and the VE testified. (Id. at 27-51.) On March 18, 2016, the ALJ found that, although Plaintiff suffered from the severe impairments of HIV, seizures, major depressive disorder, anxiety disorder, and post-traumatic stress disorder ("PTSD") (id. at 12), he had the residual functional capacity ("RFC") to perform light work with certain limitations and, therefore, was not disabled under the Act (id. at 14, 20.) Plaintiff then submitted supplemental medical records to the Appeals Council. (Id. at 2.) The Appeals Council denied Plaintiff's request for review on May 9, 2017, finding that the supplemental evidence he had submitted did not show a reasonable probability that it would change the ALJ's decision. (Id. at 1-3.) Thereafter, the ALJ's decision became the final decision of the Commissioner.

2 This Court notes that the Record appears to contain information from Plaintiff's prior disability applications for time periods pre-dating the relevant period for this specific application, including a transcript from another hearing, held before a different ALJ, on September 19, 2013. (R. at 52-66.) As such information is not relevant to this specific application by Plaintiff for the relevant period of March 31, 2014 through March 18, 2016, it will not be summarized herein.

A. Plaintiff's Personal History

Plaintiff was born on June 21, 1969 and was 44 years old as of his alleged disability onset date. (Id. at 175.) Plaintiff received special education until he dropped out of school in either the seventh or eighth grade. (Id. at 35, 181.) Plaintiff was incarcerated several times, but has been out of prison since his release date of March 20, 2012. (Id. at 57.) He has no significant work history. (Id. at 181, 238, 273.)

B. Medical Evidence

The relevant period under review for the purpose of SSI benefits runs from March 31, 2014, the date that Plaintiff applied for those benefits, to March 18, 2016, the date of the ALJ's decision. 20 C.F.R. §§ 416.330, 416.335; Barrie on behalf of F.T. v. Berryhill, No. 16cv5150 (CS) (JCM), 2017 WL 2560013, at *2 (S.D.N.Y. June 12, 2017) (adopting report and recommendation).³

3 Generally, "Title II benefits may be paid retroactively for up to 12 months prior to filing of an application. Payment of Title XVI benefits, however, cannot precede the month following the month of application." Roman v. Colvin, No. 13cv7284 (KBF), 2015 WL 4643136, at *1 n.2 (S.D.N.Y. Aug. 4, 2015) (citing 20 C.F.R. §§ 404.621, 416.335).

1. Evidence Pre-Dating the Relevant Period

a. Dr. Aaron Fox (Primary Care Physician)

As noted above, Plaintiff was released from prison in March 2012. (Id. at 57.) Medical notes from April and June 2012, submitted by Plaintiff's primary care physician, Dr. Aaron Fox of Montefiore Medical Center ("Montefiore") (see id. at 36, 183, 228), indicate that Plaintiff had been infected with HIV since 1991 (id. at 228), and also had suffered from seizures (id.). In April 2012, he weighed 136 pounds. (Id. at 230.) In May 2013, Dr. Fox indicated that there had been no recent seizures and no unexplained weight loss in the prior three months. (Id. at 250.)

By August of 2013, however, Plaintiff weighed only 125 pounds (see id. at 254, 255), and the notes indicate that he was suffering from "abnormal" weight loss (id. at 256). Not only did Dr. Fox note that Plaintiff had lost 10 pounds in the prior year alone, but he also recorded Plaintiff's report that he had lost 20 pounds over a longer period - which Plaintiff described as the period since he had returned home from prison.⁴ (See id.)

4 The recorded decline in Plaintiff's weight from 136 pounds in April 2012 to 125 pounds in August 2013 obviously supports Dr. Fox's notation that Plaintiff had experienced a 10-pound weight loss, but it does not support Plaintiff's statement that he had suffered a 20-pound weight loss since the date of his release. This Court notes, however, that the fact that Plaintiff had been incarcerated and released several times introduces some uncertainty as to the period he was referencing. Further, as discussed below, there is evidence in the Record that Plaintiff suffered from memory deficits (see id. at 294, 306-07, 367), which may have rendered unreliable his recollection of the period over which he had lost the weight that he claimed to have lost.

In October of 2013, Plaintiff was reported to be "very depressed and not eating much" (id. at 262), with suicidal ideation present (although with no suicide attempts or plans) (id.). Dr. Fox again noted Plaintiff's weight loss of 10 pounds. (Id. at 259.) In January of 2014, Dr. Fox noted that Plaintiff's HIV was still "well controlled," that his last seizure was "2-3 months ago," and that he was being treated for latent tuberculosis. (Id. at 266.) Although Dr. Fox noted that it was reassuring that Plaintiff had gained 10 pounds in the prior three months, his weight was actually found to be 130 pounds (i.e., only five pounds more than the weight recorded six months earlier). (Id. at 267.)

b. Dr. Karinn Glover (Psychiatrist)

Prior to the relevant period, Plaintiff was also treated by Dr. Karinn Glover, a psychiatrist. Dr. Glover indicated that Plaintiff had moderate to severe depression, but had not had regular treatment for it. (Id. at 240.) In June of 2012, Dr. Glover also noted, upon a mental status examination of Plaintiff that he was "disheveled, unkempt, [and] underweight." (Id. at 239.) Dr. Glover appears to have convinced Plaintiff to begin taking mirtazapine⁵ which, by July of 2012, had reportedly caused an improvement in Plaintiff's sleep quality and appetite (id. at 242), such that his mental status examination was unremarkable at that time (id.).

5 Mirtazapine "is used to treat depression. Mirtazapine is in a class of medications called antidepressants. It works by increasing certain types of activity in the brain to maintain mental balance." Mirtazapine, https://medlineplus.gov/druginfo/meds/a697009.html.

2. Evidence During the Relevant Period

a. Treating Sources

i. Dr. Fox (Primary Care Physician)

Generally, based on the medical treatment notes submitted by Dr. Fox, Plaintiff's physical impairments, including his HIV and seizures, appear to have been well-controlled during the relevant period, although the medical records suggest that he continued to suffer from weight loss and diarrhea, and that he also continued to complain of symptoms relating to depression.

On April 16, 2014, Plaintiff reported stomach pain to Dr. Fox, and Dr. Fox ordered a PPD.⁶ (Id. at 296.) Dr. Fox noted that, with respect to Plaintiff's HIV, he had a "small increase in viral load[,] but no missed doses," that he was due for blood work, and that he was "not gaining any weight." (Id.) He weighed 127 pounds. (Id. at 297.) Plaintiff reported "talking to self, dysphoric mood, anhedonia," and irritability. (Id. at 296.) He also reported living in transitional housing, that his only social contacts were his mother and his cousin, and that he had been "exercising for relaxation." (Id.)

6 PPD (purified protein derivative) is a skin test that determines if an individual has tuberculosis. PPD Skin Test, https://www.healthline.com/health/ppd-skin-test

On June 5, 2014, Dr. Fox completed a medical source statement with respect to Plaintiff's physical capacities. (Id. at 284.) He indicated that Plaintiff had been diagnosed with HIV, depression, and PTSD. (Id.) He also indicated that Plaintiff's impairments had persisted for 13 years, and were expected to last for at least 12 months. (Id.) His opinion was that Plaintiff's prognosis for marked improvement or complete recovery was "poor." (Id.) He was also of the opinion that Plaintiff's prognosis for his ability to return to work was "limited." (Id.) Specifically, he found that Plaintiff's symptoms would allow him to work zero hours out of the day, that he would likely be out of work more than three times per month, that his pain and other symptoms that interfered with his attention and concentration were "frequent," that persistence and pace in performing activities was constantly affected by his symptoms, and that he was severely limited in his ability to deal with work stress. (Id.)

Dr. Fox also noted, however, that Plaintiff could sit for up to eight hours in a workday and could stand or walk for up to six hours in a workday. (Id.) He indicated that Plaintiff could only walk two blocks without rest or severe pain. (Id.) He also indicated that Plaintiff could "occasionally" lift and carry up to 20 pounds and "frequently" lift and carry up to 10 pounds, although he could "never" lift and carry up to 50 pounds. (Id.) Finally, Dr. Fox noted that Plaintiff's "[m]ain issues [were] cognitive impairment" and PTSD. (Id.)

On June 6, 2014, Dr. Fox indicated that Plaintiff had "minimal complications from HIV except for neuropathy/leg pain," and that his last viral load was "undetectable" with no side effects from his medication. (Id. at 288.) Plaintiff's weight was 130 pounds, and his physical examination results were unremarkable, although Dr. Fox increased his dosage of Dilantin to treat his seizure disorder. (Id. at 289-90.) Dr. Fox also noted that Plaintiff had been seeing Dr. Glover, who had diagnosed him with PTSD and "cognitive impairment." (Id. at 288.)

On August 6, 2014, Dr. Fox noted that Plaintiff complained of low body weight (although he was eating "all of the time"), night sweats, and diarrhea (although he reported that the diarrhea was "tolerable"). (Id. at 331.) Physical examination results were unremarkable, and Plaintiff was found to weigh approximately 126 pounds. (Id. at 332.) Dr. Fox's impression was that Plaintiff was no longer losing weight, but also was not gaining weight, and that Plaintiff had "small lymph nodes," although these were "not worrisome." (Id. at 333.) In addition, Dr. Fox noted that Plaintiff likely had chronic anemia. (Id.)

On September 19, 2014, Plaintiff reported missing a few doses of his medication, and his viral load was found to have increased. (Id. at 336.) He also again reported diarrhea, although he indicated that it was likely caused by the food he had eaten the day before. (Id.) Dr. Fox generally noted that Plaintiff was "well developed, well nourished, [and] in no acute distress." (Id. at 337.) Dr. Fox also noted that Plaintiff's seizure disorder was "stable." (Id.)

On December 3, 2014, Plaintiff's viral load was undetectable, his adherence to his medication regimen was noted to be "perfect," and Plaintiff was "feel[ing] good[,] but continuing to lose weight." (Id. at 340.) Dr. Fox again noted night sweats, as well as enlarged lymph nodes in Plaintiff's neck. (Id.) Dr. Fox ordered CT scans and a potential biopsy to evaluate for lymphoma, as Plaintiff continued to suffer from abnormal weight loss. (Id. at 341.)

On March 4, 2015, Plaintiff again complained of night sweats and weight loss. (Id. at 344.). Although Dr. Fox noted that Plaintiff's weight appeared stable, he also noted that Plaintiff had gone from 136 pounds to 125 pounds. (Id. at 344.) Nevertheless, Plaintiff reported that his new HIV medication left him "[with] actually fewer side effects, [and] decreased diarrhea." (Id.) A review of systems also indicated complaints of enlarged lymph nodes. (Id. at 345.) Dr. Fox noted that he was concerned about Plaintiff's inability to gain weight, remarking that, as the HIV was not advancing, the weight loss should not be related to "wasting."⁷ (Id. at 346.) Dr. Fox appeared to be uncertain as to the cause of Plaintiff's weight loss, and he recommended evaluation for malignancy due to night sweats, weight loss, and anemia. (Id.)

7 As discussed further below (see Discussion, infra, at Section III(B)), HIV wasting syndrome refers to unwanted weight loss of more than 10 percent of a person's body weight, with either diarrhea or weakness and fever that have lasted at least 30 days. Once lost, the weight is difficult to regain. HIV wasting syndrome, https://www.hiv.va.gov/patient/diagnosis/OI-wasting-syndrome.asp

On May 30, 2015, Dr. Fox reported that Plaintiff's CT scan results had been normal except for showing an enlarged prostate. (Id. at 349.) In addition, Dr. Fox noted that Plaintiff's viral load was now detectable, which could have been due to medication interactions. (Id. at 350-51.) As part of the examination, Dr. Fox indicated that Plaintiff's weight was now at 118 pounds (down from the previously noted 125 pounds). (Id. at 350.) He also noted that Plaintiff had diarrhea, that a colonoscopy was necessary to check for parasites, and that they again discussed concerns about malignancy. (Id. at 351.) Dr. Fox also noted that Plaintiff had not had any seizures in the prior five years. (Id.)

On August 5, 2015, Dr. Fox noted that Plaintiff was feeling "woozy" after taking his new HIV medication, but that, otherwise, there were no side effects and he was tolerant of the medication. (Id. at 355.) Physical examination results were unremarkable, and Plaintiff was noted to have gained four pounds, to 122 pounds, although Dr. Fox noted that a colonoscopy was still necessary. (Id. at 357, 358.) Dr. Fox also noted that Plaintiff had scored a 16 on a PHQ-9 questionnaire,⁸ which was interpreted to reflect "[m]oderate [s]evere depression," but that he had "already [been] evaluated by [a] psychiatrist and denied depressive symptoms." (Id. at 355, 356.) As part of the questionnaire, Plaintiff reported that he had trouble falling or staying asleep "nearly every day," and that he felt tired or had little energy "more than half the days." (Id. at 356.) In addition, he reported that he had trouble concentrating on things, such as reading the newspaper or watching television, "more than half the days." (Id.)

8 A PHQ-9 questionnaire is a tool for assessing depression. Individuals who score higher than 10 on the questionnaire are more likely to be diagnosed with depression. Patient Health Questionnaire (PHQ-9 & PHQ-2), https://www.apa.org/pi/about/publications/caregivers/practice-settings/assessment/tools/patient-health

On September 12, 2015, Dr. Fox noted that Plaintiff had an elevated viral load. (Id. at 360.) Due to Plaintiff's weight loss, Dr. Fox discussed with Plaintiff the possibility of his having cancer, which would require additional tests to confirm, but Plaintiff expressed that he did not "want to go to all [of the] tests." (Id. at 360, 362.) Plaintiff did note, however, that his diarrhea had "gotten better." (Id. at 360.) His weight, on this occasion, was 120 pounds. (Id. at 362.) In October 2015, Plaintiff was again noted to be experiencing night sweats, and was found to have swollen glands in his neck and under his jaw. (Id. at 366.) Upon further physical examination, it was noted that Plaintiff's neck contained "[l]arge rubbery moveable 2cm round lymph nodes in [the] left anterior cervical chain." (Id. at 367.) His weight had slightly improved, however, to 122 pounds. (Id.) Dr. Fox also noted that Plaintiff was "[c]learly forgetting things," and that they would "need to be cautious about" Plaintiff's self-reporting adherence to his medication regimen. (Id.) Dr. Fox also again noted that he was worried about lymphoma, and he explained to Plaintiff that a biopsy was necessary.⁹ (Id. at 368.)

9 Based on the Record, it does not appear that this biopsy was ever performed.

ii. Dr. Glover (Psychiatrist)

The first medical treatment note from Dr. Glover during the relevant period is dated May 13, 2014, at which time Dr. Glover noted that Plaintiff was reporting "difficulty staying asleep," "some weight loss," "some irritability," and "significant anxiety" due to past trauma from being in prison, including "multiple fights and assaults." (Id. at 293.) Plaintiff denied, however, having mania, having any self-harm ideation, or having recently used drugs. (Id.) A mental status examination generally indicated no abnormalities, except that Plaintiff's mood was "anxious" and he failed a memory test. (Id. at 293, 294.) Dr. Glover wrote that they explored Plaintiff's symptoms of depression, but that Plaintiff was only willing to take mirtazapine, which, according to Dr. Glover, would not relieve his anxiety. (Id. at 294.) She also noted that he claimed to have tried anti-depressants, but that they had no effect on his PTSD or depression. (Id.) She indicated that he had been out of her care for "more than a year," which made it difficult to diagnose him properly. (Id.) Dr. Glover assessed Plaintiff with depression, PTSD, and a "mild cognitive impairment," which, Dr. Glover found, might have been "multifactorial," due to Plaintiff's having attended special education and then having dropped out before receiving a GED and due to his prior cocaine use. (Id. at 294-95.) She prescribed Trazodone.¹⁰ (Id. at 295.)

10 Trazodone "is used to treat depression. Trazodone is in a class of medications called serotonin modulators. It works by increasing the amount of serotonin, a natural substance in the brain that helps maintain mental balance." Trazodone, https://medlineplus.gov/druginfo/meds/a681038.html

On June 6, 2014, Plaintiff reported "feeling well," and further reported that he had been "running errands and completing tasks." (Id. at 285.) He also reported that he had been "sleeping well" and having a "good appetite." (Id.) His mental status examination results were unremarkable, and, in fact, he was noted to have been "cheerful," and "talking in [the] waiting room to other patients and staff." (Id. at 286.) Dr. Glover noted that, with respect to Plaintiff's mild cognitive impairment, he was "functioning well," and that he reported the Tradazone to have been "helpful." (Id.) Dr. Glover also noted, however, that Plaintiff was unwilling, on this occasion, to discuss his history of trauma, and that he was "very absorbed in getting services and benefits." (Id.)

On the same date, Dr. Glover completed a "psychiatric summary" of Plaintiff's condition. She indicated that Plaintiff had come to her two years ago with notable depression and complex trauma symptoms, that he had gone on mirtazapine to treat his depression and insomnia with success, and that he had stayed on this medication until he experienced a relapse of his depression and insomnia, at which point he had been switched to Trazodone. (Id. at 303.)

Dr. Glover wrote that a PHQ-9 questionnaire taken by Plaintiff had revealed a score of 15, which she characterized as indicating "moderate depression." (Id.) In addition, she noted that he reported "significant anxiety," having flashbacks, being hypervigilant, and ruminating about his past traumas, including multiple fights and assaults that had occurred while he was incarcerated. (Id.) Despite this, Dr. Glover noted that Plaintiff had declined pharmacotherapy and psychotherapy to treat his anxiety and his related trauma symptoms. (Id. at 304.) Dr. Glover further wrote that Plaintiff had developed PTSD during his adolescence, due to an assault with a weapon, and that he had also been harshly beaten as a child by an extension cord and was haunted by these incidents. (Id.) She indicated, however, that he did not have social anxiety. (Id.)

A mental status examination indicated no abnormal results, other than that Plaintiff appeared "disheveled, unkempt, underweight, [and] . . . older than [his] age." (Id. at 305.) In addition, Dr. Glover wrote that Plaintiff maintained good impulse control, that his judgment was not impaired, and that he had fair insight into his illness. (Id.) She once again confirmed that Plaintiff had mild cognitive impairment which, she indicated, meant that he had difficulty with "multi-step directions," "complex tasks," and "visuo-spatial reasoning and memory." (Id. at 306-07.) She also confirmed his diagnosis of depression, although she noted that he was functioning "reasonably well for now." (Id. at 307.) In addition, she confirmed his diagnosis of PTSD, but wrote that he was resistant to changing his medication regimen to include an SSRI¹¹ to help alleviate this impairment. (Id.)

11 Selective serotonin reuptake inhibitors (SSRIs) are the most commonly prescribed antidepressants. Selective serotonin reuptake inhibitors (SSRIs), https://www.mayoclinic.org/diseases-conditions/depression/in-depth/ssris/art-20044825

On August 1, 2014, Plaintiff reported that he was "feeling well, though [he was] a little frustrated by his housing situation." (Id. at 329.) His mental status examination yielded no abnormal results. (Id.) With respect to Plaintiff's mild cognitive impairments, Dr. Glover indicated that Plaintiff was still "functioning well," was able to "manage appointments[,] and [could] understand the intricacies of his housing process." (Id. at 330.) With respect to Plaintiff's depression, Dr. Glover explored his stressors with him and discussed providing him support, but Plaintiff did not indicate that he was then experiencing any negative symptoms due to his depression. (Id.)

b. Consultative Examiners

i. Dr. Sharon Revan (Internal Medicine)

On May 5, 2014, Dr. Revan conducted an internal medicine examination of Plaintiff. She indicated that his chief complaints were HIV and depression. (Id. at 278.) He also reported shin pain upon sitting, shortness of breath with walking, abdominal pain upon lying down, and shortness of breath when climbing a flight of stairs. (Id.) Regarding Plaintiff's activities of daily living, she noted that he showered and dressed himself, but that his mother did the cooking, cleaning, laundry, and shopping. (Id.) Plaintiff admitted to Dr. Revan, however, that he merely disliked cooking (rather than not being able to cook), and that he was "able to do stuff if needed." (Id.) He also watched television, listened to the radio, and followed up with his doctors. (Id.) Physical examination results were wholly normal, except that Plaintiff was noted to have "multiple cervical nodes." (Id. at 279.) Dr. Revan diagnosed Plaintiff with depression and HIV. (Id. at 280.) She noted that his prognosis was "fair." (Id.)

Dr. Revan also prepared a medical source statement. In it, she wrote that it was her opinion that Plaintiff had no limitations in his speech, vision, or hearing; no limitations with respect to his upper extremities for fine and gross motor activity; no limitations with respect to personal grooming or activities of daily living; and "mild" limitations with walking and climbing the stairs due to his shortness of breath, with sitting due to his shin pain, and with lying down due to his abdominal pain. (Id.)

ii. Dr. John Nikkah (Psychologist)

Also on May 5, 2014, Plaintiff was psychiatrically evaluated by Dr. Nikkah. Dr. Nikkah noted that Plaintiff denied any hospitalization, any outpatient treatment, and any then-current psychiatric treatment.¹² With regard to his functioning as of the time of the evaluation, Plaintiff reported frequently waking up during the night (three times on average); loss of appetite; and depressive symptoms, such as dysphoric mood, diminished self-esteem, concentration difficulties, diminished sense of pleasure, social withdrawal, feelings of hopelessness, and occasional thoughts of death or suicide. (Id. at 273.) He reported that his most recent episode of suicidal ideation had occurred only two weeks prior, although he claimed that it had been "passive and fleeting." (Id.) He denied having any anxiety symptoms, manic symptoms, panic symptoms, thought disorder symptoms, or cognitive deficits. (Id. at 274.)

12 As noted above, Plaintiff did not revisit Dr. Glover until May 14, 2014.

A mental status examination revealed a "[r]estricted" affect, mild impairments in Plaintiff's attention and concentration "due to limited intellectual functioning in the domain of working memory," and mild impairments in his recent and remote memory skills "due to apparent limited intellectual functioning." (Id. at 274-75.) Dr. Nikkah wrote that Plaintiff's intellectual functioning was in the "borderline range" and that his "[g]eneral fund of information was somewhat limited." (Id.)

Regarding Plaintiff's daily living activities, Plaintiff reported to Dr. Nikkah that he was able to dress, bathe, and groom himself, but had difficulty cooking for himself due to "lack of knowledge." (Id.) In addition, he claimed to have difficulty cleaning at times, doing laundry and shopping, and managing money, all due to "a lack of motivation." (Id.) He could take public transportation without difficulty. (Id.) He reported that his mother helped him with any task he found too challenging, and that she was readily available to assist him. (Id.) His socialization was reported as "limited," although his family relationships were reported to be "fine without too many conflicts." (Id.) His hobbies and interests were reported to include only watching television, which was "how he spen[t] most of his days." (Id.)

Dr. Nikkah's medical source statement indicated that Plaintiff could follow and understand simple directions and instructions, and perform simple tasks independently. (Id.) Dr. Nikkah found, however, mild limitations in Plaintiff's ability to maintain attention and concentration, and moderate limitations in his ability to maintain a regular schedule, learn new tasks, perform complex tasks independently, make appropriate decisions, relate adequately to others, and appropriately deal with stress which, according to Dr. Nikkah, were caused by "distractibility and a lack of motivation." (Id. at 276.)

c. Non-Examining Source Dr. T. Inman-Dundon (Psychologist)

On May 12, 2014, Dr. Inman-Dundon reviewed the record and provided a mental RFC assessment of Plaintiff. (Id. at 73-76.) Dr. Inman-Dundon expressed the opinion that Plaintiff was "moderately limited" in his ability to understand and remember detailed instructions; "moderately limited" in his ability to carry out detailed instructions; "moderately limited" in his ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; and "moderately limited" in his ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (Id. at 74.) In addition, she found that Plaintiff had moderate limitations in his ability to accept instructions and respond appropriately to criticism from supervisors, and moderate limitations in his ability to set realistic goals or make plans independently of others. (Id. at 75.) Dr. Inman-Dundon further explained that, in her opinion, Plaintiff could "understand and remember simple instruction" and could "sustain attention/concentration for simple tasks," but that his depression might "moderately interfere with [his ability in] sustaining pace." (Id. at 76.) In addition, she noted that Plaintiff related moderately well to others and was able to deal with a moderate amount of stress. (Id.)

3. Additional Medical Evidence Post-Dating the ALJ's Decision

After the ALJ rendered his unfavorable decision, Plaintiff submitted to the Appeals Council additional medical records from Montefiore, dated August 6, 2014 to September 30, 2015. (Id. at 378-510.) Of the most relevance here, the supplemental evidence included progress notes from Dr. Glover regarding Plaintiff's mental impairments.

On June 5, 2015, Plaintiff presented with depression to Dr. Glover, and Dr. Glover noted that Plaintiff's continuous weight loss over the past year had concerned him that he might have a life-threatening illness. (Id. at 393.) A mental status examination showed no abnormalities, except that Plaintiff appeared older than his age. (Id. at 394.) Of particular relevance, Dr. Glover found that Plaintiff's memory was not impaired, that his concentration was within "normal limits," and that his fund of knowledge was "good." (Id.at 395.) Dr. Glover noted, however, that Plaintiff continued to have ongoing weight loss, and was having diarrhea four to five times per day. (Id. at 396.) Plaintiff denied significant depression. (Id.)

On July 1, 2015, Plaintiff returned to Dr. Glover for a follow-up visit. (Id. at 401.) His mental status examination results were unremarkable, except that his mood and affect were "anxious." (Id. at 403.) Dr. Glover noted, on this occasion, that Plaintiff was "[f]eeling well[,] [t]aking vitamins," and "[s]till cooking for himself." (Id. at 403-04.) In addition, she noted that he was having issues with his girlfriend and that he was worried about whether he would receive disability benefits. (Id.)

On July 29, 2015, Dr. Glover's mental status examination generally showed no abnormalities, except that Plaintiff again appeared older than his age and he was underweight. (Id. at 411.) Plaintiff again denied having significant depression. (Id. at 413.) He indicated continuing issues with his girlfriend, including that she had a "tendency toward violence." (Id.)

When Plaintiff visited Dr. Glover again on August 28, 2015, his mental status exam again revealed no abnormalities. (Id. at 430-31.) Dr. Glover noted that Plaintiff's viral load was detectable. (Id. at 433.) She also noted, however, that she suspected that Plaintiff's weight loss and detectable viral load might have been explained by cocaine use. (Id.) On September 12, 2015, Dr. Fox noted that Plaintiff denied using cocaine and was willing to take a drug test. (Id. at 443.) A drug screening ordered by Dr. Fox then reflected that Plaintiff tested negative for cocaine, although he tested positive for cannabinoids. (Id. at 446.)

Finally, on September 30, 2015, Plaintiff visited Dr. Glover again. (Id. at 449.) She noted that he was having difficulty making it to his medical specialist appointments because they required him to navigate areas that were "new to him," and that he was still struggling with his violent and mentally ill girlfriend. (Id. at 450.) His mental status examinations results were again unremarkable, except that he appeared older than his age, he was underweight, his mood was anxious, and his affect was "embarrassed." (Id. at 452.) Dr. Glover noted that Plaintiff indicated that he was "OK." (Id. at 453.) She also indicated, however, that his viral load was still detectable, and she further noted that, given his cognitive impairment, Plaintiff "often [got] confused when going to [appointments] with new doctors, [and] ha[d] missed multiple [appointments] with specialists because he ha[d] difficulty navigating to new places." (Id.) Accordingly, she "strongly recommend[ed]" that he be referred to "case management." (Id.)

C. Plaintiff's Testimony Before the ALJ

On March 4, 2016, Plaintiff testified before the ALJ (see id. at 27-46) regarding his impairments. He testified that he had lost a substantial amount of weight, around 30 to 40 pounds in the prior two years, and that he remained unsure as to the cause. (Id. at 32.) He complained of shin and foot problems, a bent finger, breathing problems, feeling weak, diarrhea, night sweats, trouble sleeping, hearing voices, PTSD, and HIV. (Id. at 33, 35, 37, 42-43.)

Plaintiff told the ALJ that he had no problems bathing or dressing himself; that he generally did not cook, but could make simple foods; and that he sometimes went food shopping. (Id. at 33, 39.) He testified that his mother helped him with the laundry and housework, and that she often prepared meals for him. (Id. at 39.) He testified that he sometimes read the Bible, newspapers, and magazines, but that he had trouble "comprehending a lot of the words." (Id. at 34, 42-43.) He also testified that he had "a lot of trouble" doing math, and that he had been struggling with this since he dropped out of school in the seventh grade. (Id. at 43.)

When asked about his walking ability, Plaintiff testified that he did not know how many blocks he could walk at one time. (Id. at 38-39.) When asked about his ability to lift objects, Plaintiff testified that he would be unable to lift heavy objects. (Id. at 45-46.) Regarding his "feel[ing] weak," Plaintiff further explained that he did not know whether he was consuming a sufficient amount of food or whether, due to the medication, as soon as he ate food, "it just r[an] out of [him]" and there were no vitamins absorbed by his body. (Id. at 46.) He claimed that, during the day, he was basically lying down and taking naps "all the time." (Id.)

D. The VE's Testimony Before the ALJ

VE Erbacher testified at the Hearing regarding Plaintiff's ability to perform jobs in the national economy. (See id. at 47-50.) The ALJ inquired of the VE as to whether jobs were available for a hypothetical person of Plaintiff's age, education, and work experience who was able to engage in "light work," with the following additional exertional and non-exertional limitations: frequently being able to finger with his left non-dominant hand; occasionally being able to climb ramps and stairs; occasionally being able to stop, crouch, and kneel; never being able to climb ladders, ropes, scaffolds, or crawl; never being able to be exposed to moving machinery, unprotected heights, driving vehicles, or flashing lights; and with work limited to only "simple, routine tasks" in a "low stress job, defined as having only occasional decision-making, only occasional changes in the work setting," "only occasional judgment required in the job," and "occasional interaction with the public and with co-workers." (Id. at 48-49.) In addition, the ALJ added that the hypothetical person would be off task for five percent of the day, "in addition to regularly scheduled breaks." (Id. at 49.)

Based on this hypothetical, the VE testified to three jobs that, in her view, were available in the labor market, specifically including "cleaner, housekeeping" (DOT 323.687-014); "marker" (DOT 209.587-034); and "photocopying machine operator" (DOT 207.685-014). (Id.)

The ALJ then asked the VE whether, if the hypothetical person's off-task percentage were increased to 20 percent of the day, these same jobs would remain available. (Id.) The VE responded in the negative, indicating that, based on her communications with actual employers in the labor market, her education, and her training, more than 15 percent of the day spent off task would not be tolerated, and would result in the individual's termination. (Id.)

Thereafter, Plaintiff's counsel stated to the ALJ that he should "use the second hypothetical, or amended hypothetical" (presumably, the hypothetical in which the person would be off task for 20 percent of the day) in making his disability determination. (Id. at 50.) Counsel also reiterated an earlier request (id. at 30), made the beginning of the Hearing, that the ALJ specifically request that another consultative examination be performed, one in which IQ testing be done, due to the prior consultative reports' having noted intellectual disability, as well as limitations in attention and concentration, and in recent and remote memory skills (id. at 50). The ALJ's response was that he would review the record and make his determination. (Id. at 50-51.)

E. The Current Action and the Motion Before the Court

Plaintiff filed a form pro se Complaint in this action on June 6, 2017 (see Complaint ("Compl.") Dkt. 2), along with a request to proceed in forma pauperis (see Dkt. 1), which was granted (see Dkt. 4). In his Complaint, Plaintiff maintained that he was entitled to receive SSI benefits because he suffered from HIV and bipolar disorder. (Compl. ¶ 4.) He claimed, as part of the form Complaint and without further elaboration, that the ALJ's decision was "erroneous, not supported by substantial evidence on the record, and/or contrary to the law." (Id. ¶ 9.)

On January 17, 2018, Defendant filed a motion for judgment on the pleadings. (See Dkt. 15; see also Dkt. 16 (Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings, dated Jan. 17, 2018 ("Def. Mem.")).) On March 19, 2018, Plaintiff requested an extension of time to May 19, 2018, to file an answering brief (see Dkt. 17), and this Court granted that extension (see Dkt. 18). As Plaintiff did not then proceed to file any papers, this Report and Recommendation is based only on the Record and the parties' submissions to the Court to date.

DISCUSSION

I. APPLICABLE LEGAL STANDARDS

A. Judgment on the Pleadings

Judgment on the pleadings under Rule 12(c) is appropriate where "the movant establishes 'that no material issue of fact remains to be resolved,'" Guzman v. Astrue, No. 09cv3928 (PKC), 2011 WL 666194, at *6 (S.D.N.Y. Feb. 4, 2011) (quoting Juster Assocs. v. City of Rutland, 901 F.2d 266, 269 (2d Cir. 1990)), and a judgment on the merits can be made "'merely by considering the contents of the pleadings,'" id. (quoting Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988)).

Judicial review of a decision of the Commissioner is limited. The Commissioner's decision is final, provided that the correct legal standards are applied and findings of fact are supported by substantial evidence. 42 U.S.C. § 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). "[W]here an error of law has been made that might have affected the disposition of the case, [a] court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ." Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (citation omitted)). Thus, the first step is to ensure that the Commissioner applied the correct legal standards. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).

The next step is to determine whether the Commissioner's decision is supported by substantial evidence. See Tejada, 167 F.3d at 773. Substantial evidence "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) (internal citation and quotation marks omitted). In making this determination, a court must consider the underlying record. The reviewing court does not, however, decide de novo whether a claimant is disabled. See Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002) ("Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, we will not substitute our judgment for that of the Commissioner."); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997). Thus, if the correct legal principles have been applied, this Court must uphold the Commissioner's decision upon a finding of substantial evidence, even where contrary evidence exists. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) ("Where there is substantial evidence to support either position, the determination is one to be made by the factfinder."); see also DeChirico v. Callahan, 134 F.3d 1177, 1182-83 (2d Cir. 1998) (affirming decision where substantial evidence supported both sides).

B. The Five-Step Sequential Evaluation

To be entitled to disability benefits under the Act, a claimant must establish his or her "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). An individual is considered to be under a disability only if the individual's physical or mental impairments are of such severity that he or she is not only unable to do his or her previous work, but also cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B).

In evaluating a disability claim, an ALJ must follow the five-step procedure set out in the regulations governing the administration of Social Security benefits. See 20 C.F.R. § 416.920; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). Throughout the inquiry, the ALJ must consider four primary sources of evidence: "(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." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (citations omitted).

The first step of the inquiry requires the ALJ to determine whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i). If not, at the second step, the ALJ determines whether the claimant has a "severe" impairment or combination of impairments that significantly limits his or her physical or mental ability to do basic work activities. Id. §§ 416.920(a)(4)(ii), (c). If the claimant does suffer from such an impairment, then the third step requires the ALJ to determine whether this impairment meets or equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. Id. § 416.920(a)(4)(iii). If it does, then the claimant is presumed to be disabled "without considering [the claimant's] age, education, and work experience." Id. § 416.920(d).

Where the plaintiff alleges a mental impairment, Steps Two and Three require the ALJ to apply a "special technique," outlined in 20 C.F.R. § 416.920a, to determine the severity of the claimant's impairment at Step Two, and to determine whether the impairment satisfies Social Security regulations at Step Three.¹³ See Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). If the claimant is found to have a "medically determinable mental impairment," the ALJ must "specify the symptoms, signs, and laboratory findings that substantiate the presence of the impairment(s)," then "rate the degree of functional limitation resulting from the impairment(s) in accordance with paragraph (c) of [Section 416.920a]," which specifies four broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence or pace; and (4) episodes of decompensation.¹⁴ 20 C.F.R. §§ 416.920a(b), (c)(3); see Kohler, 546 F.3d at 265-66. The functional limitations for these first three areas are rated on a five-point scale of "[n]one, mild, moderate, marked, [or] extreme," and the limitation in the fourth area (episodes of decompensation) is rated on a four-point scale of "[n]one," "one or two," "three," or "four or more." 20 C.F.R. § 416.920a(c)(4).

13 Pursuant to 81 Fed. Reg. 66138-01 (S.S.A. Sept. 26, 2016), the SSA revised the criteria in the Listing of Impairments (the "Listing," 20 C.F.R. Pt. 404, Subpt. P, App'x 1) used to evaluate claims involving mental disorders under Titles II and XVI of the Act, effective January 17, 2017. These revisions impacted various relevant portions of 20 C.F.R. §§ 404 and 416. This Court will review the ALJ's decision under the text of the applicable Regulation as it existed at the time that the ALJ issued his decision, see Brothers v. Colvin, No. 7:16cv100 (MAD), 2017 WL 530525, at *4 n.2 (N.D.N.Y. Feb. 9, 2017).

14 "Episodes of decompensation are exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence, or pace." Morales v. Colvin, No. 13cv4302 (SAS), 2014 WL 7336893, at *8 n.130 (S.D.N.Y. Dec. 24, 2014) (quoting Kohler, 546 F.3d at 266 n.5).

If the claimant's impairment does not meet or equal a listed impairment, then the ALJ must determine, based on all the relevant evidence in the record, the claimant's residual functional capacity, or ability to perform physical and mental work activities on a sustained basis. Id. § 416.945. The ALJ then proceeds to the fourth step of the inquiry, which requires the ALJ to determine whether the claimant's RFC allows the claimant to perform his or her "past relevant work." Id. § 416.920(a)(4)(iv). Finally, if the claimant is unable to perform his or her past relevant work, the fifth step requires the ALJ to determine whether, in light of the claimant's RFC, age, education, and work experience, the claimant is capable of performing "any other work" that exists in the national economy. Id. §§ 416.920(a)(4)(v), (g).

On the first four steps of the five-step evaluation, the claimant generally bears the burden of establishing facts to support his or her claim. See Berry, 675 F.2d at 467 (citation omitted). At the fifth step, the burden shifts to the Commissioner to "show that there is work in the national economy that the claimant can do." Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). The Commissioner must establish that the alternative work "exists in significant numbers" in the national economy and that the claimant can perform this work, given his or her RFC and vocational factors. 20 C.F.R. § 416.960(c)(2).

Where the claimant only suffers from exertional impairments, the Commissioner can satisfy this burden by referring to the Medical-Vocational Guidelines, set out in 20 C.F.R. Pt. 404, Subpt. P, App'x 2. Where, however, the claimant suffers from nonexertional impairments (such as mental impairments) that "'significantly limit the range of work permitted by his [or her] exertional limitations,'" the ALJ is required to consult with a vocational expert," rather than rely exclusively on these published Grids. Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986) (citations omitted)). "A nonexertional impairment 'significantly limit[s]' a claimant's range of work when it causes an 'additional loss of work capacity beyond a negligible one or, in other words, one that so narrows a claimant's possible range of work as to deprive him of a meaningful employment opportunity.'" Id., at 411 (quoting Bapp, 802 F.2d at 605-06).

C. Consideration of New Evidence

When, upon an administrative appeal, the claimant submits supplemental evidence that was not before the ALJ, the Appeals Council is required to consider that evidence, to the extent it "relates to the period on or before the date of the [ALJ] hearing decision." 20 C.F.R. § 416.1476(b). If the Appeals Council denies review of the ALJ's decision, the record before the reviewing court will then include the supplemental evidence. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). In other words, "[w]hen the Appeals Council denies review after considering new evidence," the task of the reviewing court is to "review the entire administrative record, which includes the new evidence, and determine, as in every case, whether there is substantial evidence to support the [agency's] decision." Id.

When the court is confronted with a case where the plaintiff has submitted supplemental evidence to support his or her claim, the court may remand based on that evidence, provided the plaintiff shows good cause for the failure to have incorporated such evidence into the record previously. 42 U.S.C. § 405(g); see also Lisa v. Secretary of Health and Human Services, 940 F.2d 40, 43 (2d Cir. 1991); Fortier v. Astrue, No. 09cv0993 (RJS) (HBP), 2010 WL 1506549, at *20 (S.D.N.Y. Apr. 13, 2010) (adopting report and recommendation); Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988). To justify remand, however, the court must find that the supplemental evidence is "new" - in the sense that it is not merely duplicative of evidence already in the record, Tirado, 842 F.2d at 597; Harris-Batten v. Comm'r of Social Security, No. 05cv7188, 2012 WL 414292, at *6 (S.D.N.Y. Feb. 9, 2012), and also that it is "material" - that is, relevant to the time period at issue, and probative, such that it is reasonably possible that such evidence would have influenced the Commissioner to decide the claim differently, Tirado, 842 F.2d at 597.

D. Duty to Develop the Record

"Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record," Perez, 77 F.3d at 47 (citing Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)), and failure to develop the record may be grounds for remand, Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999). "[W]here there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history 'even when the claimant is represented by counsel.' " Id. at 79 (quoting Perez, 77 F.3d at 47). The Social Security Administration regulations explain this duty to claimants this way:

Before we make a determination that you are not disabled, we will develop your complete medical history ... [and] will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports.... 'Every reasonable effort' means that we will make an initial request for evidence from your medical source and, at any time between 10 and 20 calendar days after the initial request, if the evidence has not been received, we will make one followup request to obtain the medical evidence necessary to make a determination.

20 C.F.R. §§ 416.912(d), (d)(1). The regulations further explain that a claimant's "complete medical history" means the records of his or her "medical source(s)." Id. § 416.912(d)(2). If the information obtained from medical sources is insufficient to make a disability determination, or if the ALJ is unable to seek clarification from treating sources, the regulations also provide that the ALJ should ask the claimant to attend one or more consultative evaluations. Id. §§ 416.912(e), 416.917.

Where there are no "obvious gaps" in the record and where the ALJ already "possesses a complete medical history," the ALJ is "under no obligation to seek additional information in advance of rejecting a benefits claim." Swiantek v. Comm'r of Soc. Sec., 588 F. App'x 82, 84 (2d Cir. 2015) (Summary Order) (quoting Rosa, 168 F.3d at 79 n.5).

E. The Treating Physician Rule

Under the so-called "treating physician rule,"¹⁵ the medical opinion of a treating source as to "the nature and severity of [a claimant's] impairments" is entitled to "controlling weight," where the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the] case record." 20 C.F.R. § 416.927(c)(2). "Treating source" is defined as the claimant's "own physician, psychologist, or other acceptable medical source who . . . has provided [the claimant] with medical treatment or evaluation" and who has had "an ongoing treatment relationship" with him or her. 20 C.F.R. § 416.902. Treating physicians' opinions are generally accorded deference because treating physicians "are likely to be the medical professionals most able to provide a detailed, longitudinal picture" of a claimant's condition and "bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations." 20 C.F.R. § 416.927(c)(2); see Taylor v. Barnhart, 117 F. App'x 139, 140 (2d Cir. 2004) (Summary Order).

15 In accordance with Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 11 (Jan. 18, 2017), the treating physician rule, as described herein, will no longer be in effect for applications made to the SSA on or after March 27, 2017.

Where an ALJ determines that a treating physician's opinion is not entitled to "controlling weight," the ALJ must "give good reasons" for the weight accorded to the opinion. 20 C.F.R. § 416.927(c)(2). Failure to "give good reasons" is grounds for remand. Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) ("We do not hesitate to remand when the Commissioner has not provided 'good reasons' for the weight given to a treating physician's opinion . . . ."). Moreover, in determining the weight to be accorded to an opinion of a treating physician, the ALJ "must apply a series of factors," Aronis v. Barnhart, No. 02cv7660 (SAS), 2003 WL 22953167, at *5 (S.D.N.Y. Dec. 15, 2003) (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) ¹⁶), including: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including whether the treatment received was particular to the claimant's impairment; (3) the supportability of the physician's opinion; (4) the consistency of the physician's opinion with the record as a whole; and (5) the specialization of the physician providing the opinion, 20 C.F.R. § 416.927(c)(2)-(5); see Shaw, 221 F.3d at 134 (noting that these five factors "must be considered when the treating physician's opinion is not given controlling weight").

16 On February 23, 2012, the Commissioner amended 20 C.F.R. §§ 404.1527 and 416.927, by, among other things, removing paragraph (c), and re-designating paragraphs (d) through (f) as paragraphs (c) through (e).

Even where a treating physician's opinion is not entitled to "controlling weight," it is generally entitled to "more weight" than the opinions of non-treating and non-examining sources. 20 C.F.R. § 416.927(c)(2); see Social Security Ruling 96-2p (S.S.A. July 2, 1996) ("In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight."); see also Gonzalez v. Apfel, 113 F. Supp. 2d 580, 589 (S.D.N.Y. 2000). A consultative physician's opinion, by contrast, is generally entitled to "little weight." Giddings v. Astrue, 333 F. App'x 649, 652 (2d Cir. 2009) (Summary Order) (internal quotation marks and citation omitted). This is because consultative examinations "are often brief, are generally performed without benefit or review of the claimant's medical history, and, at best, only give a glimpse of the claimant on a single day." Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 55 (2d Cir. 1992) (internal quotation marks and citations omitted).

II. THE ALJ'S DECISION

On March 18, 2016, ALJ Rusak issued his decision, finding that Plaintiff was not under a disability for purposes of the Act and did not qualify for SSI. (R. at 20.) In rendering his decision, the ALJ applied the five-step sequential evaluation.

A. Steps One Through Three of the Sequential Evaluation

At Step One, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since March 31, 2014, the application date. (Id. at 12.)

At Step Two, the ALJ found, as noted above, that Plaintiff had the following severe impairments: HIV, seizures, major depressive disorder, anxiety disorder, and PTSD. (Id.)

At Step Three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of the following listings: Listings 14.08 ("Human Immunodeficiency Virus"), 11.02 or 11.03 ("Neurological Disorders - Epilepsy"), 12.04 ("Depressive, Bipolar, and Related Disorders"), or 12.06 ("Anxiety and Obsessive-Compulsive Disorders").¹⁷ (Id. at 12-13.) With respect to Listing 14.08, in particular, the ALJ found that Plaintiff did not meet this Listing because the record did not show that he suffered from any of the requisite infections, malignant neoplasms, condition of the skin or mucous membranes, HIV encephalopathy, or HIV wasting syndrome. (Id. at 12.) The ALJ also found that the record did not indicate that Plaintiff suffered from "diarrhea lasting for one month or longer, resistant to treatment, and requiring intravenous hydration, intravenous alimentation, or tube feeding." (Id. at 12-13.) Moreover, the ALJ found that Plaintiff did not suffer from significant, documented symptoms or signs (such as severe fatigue, fever, malaise, involuntary weight loss, pain, night sweats, nausea, vomiting, headaches, or insomnia) and marked limitations, as described in the Listing. (Id. at 13.)

17 The ALJ's decision was rendered on March 18, 2016. On March 18, 2018, HIV was redesignated under Listing 14.11I, and the Listing no longer includes HIV wasting syndrome as a separate basis for disability. This Court, however, must analyze the ALJ's determination under Listing 14.08, as that was the Regulation that was in effect at the time the ALJ rendered his decision and as that was also the Listing that was specifically referenced by the ALJ in his decision. See Rodriguez v. Comm. of Soc. Sec., Case # 17-CV-6006-FPG, 2018 WL 4681624, at *4 (W.D.N.Y. Sept. 28, 2018) (noting that Listing 14.08 was in effect from August 12, 2015 through May 23, 2016 and therefore finding 14.11 inapplicable to plaintiff's disability determination, which predated 14.11).

B. The ALJ's Assessment of Plaintiff's RFC

The ALJ found that Plaintiff had the RFC to perform light work with certain exertional limitations, specifically, that Plaintiff could occasionally climb ramps, climb stairs, stoop, crouch, or kneel, but he could never climb ladders, ropes, or scaffolds or be exposed to moving machinery, unprotected heights, driving vehicles, or flashing lights. (Id. at 14.) Additionally, the ALJ found that Plaintiff had the following non-exertional limitations: he was limited to simple, routine tasks; he could only work in a low-stress job with occasional decision making and occasional changes in the work setting; he needed to be allowed to be off task five percent of the day, in addition to regularly scheduled breaks; and he could only occasionally interact with the public and occasionally interact with co-workers. (Id.)

In making this RFC determination, the ALJ concluded that, while Plaintiff's medically determinable impairments could reasonably be expected to cause some of the symptoms he alleged, the Record did not establish a need for any additional restrictions beyond what was set forth in the RFC. (Id. at 15.) With respect to Plaintiff's HIV and seizures, the ALJ found that the Record did not reflect any exacerbations or hospitalizations, and showed that Plaintiff managed these impairments through steady compliance with prescription medication. (Id.) The ALJ determined that, overall, Plaintiff's HIV and seizures caused "minimal complications," in that Plaintiff "ha[d] reported fatigue, weakness, and leg pain." (Id.) He further summarized the medical records relating to Plaintiff's viral loads, and, in support of his RFC determination, cited to Plaintiff's daily living activities, noting that Plaintiff could engage in several activities with minimal complications. (Id. at 16.) With respect to Plaintiff's mental impairments, the ALJ found that the Record also demonstrated that Plaintiff could manage his mental health through the use of medication and monthly psychotherapy. (Id. at 16.)

The ALJ also found that "[Plaintiff's] statements concerning the intensity, persistence, and limiting effects of his symptoms [were] not consistent with the record as a whole." (Id. at 17.) The ALJ's conclusion in this regard was based on what he characterized as contradictory statements by Plaintiff, including that he was unable to cook, when he had reported being able to use a microwave, and that he used a cane to ambulate, when he had also stated that he was able to exercise and that the cane was not prescribed to him. (Id.)

The ALJ also weighed the opinion evidence contained in the Record. With regard to Plaintiff's physical impairments, the ALJ assigned "partial weight" to the opinion of the internal medicine consultative examiner, Dr. Revan, because, while Dr. Revan had been able to observe Plaintiff personally and to review the medical record, and her opinion was generally consistent with Plaintiff's activities of daily living, it was purportedly inconsistent with her own observations, made during Plaintiff's consultative examination. (Id. at 17-18.) Specifically, the ALJ noted that, while Dr. Revan had found Plaintiff to have mild limitations with walking and climbing stairs, sitting due to shin pain, and lying down due to abdominal pain, she had made "mostly normal findings" with respect to Plaintiff's gait, stance, squat, mostly full range of motion, and full strength. (Id.)

In addition, the ALJ assigned only "little weight" to the opinion of Dr. Fox, Plaintiff's treating physician, that Plaintiff could work zero hours per day and had a severe limitation in his ability to deal with work stress, as, according to the ALJ, this was "wholly inconsistent with the medical record demonstrating [that Plaintiff had] been able to manage his symptoms through medication and psychotherapy." (Id. at 18.) The ALJ also found this opinion to be inconsistent with Plaintiff's reported activities of daily living and with the observations of both of the consultative examiners, Drs. Revan and Nikkah.

With regard to Plaintiff's mental impairments, the ALJ gave "great weight" to the opinion of psychiatric consultative examiner Dr. Nikkah, based on the fact that Dr. Nikkah had had the opportunity to observe Plaintiff personally and to review the medical record. (Id. at 17.) The ALJ also found Dr. Nikkah's opinion to be generally consistent with both the evidence of record showing that Plaintiff could manage his medical impairments with medication, and the evidence of Plaintiff's daily living activities. (Id.) Similarly, the ALJ gave "great weight" to the opinion of non-examining consultant, Dr. Inman-Dundon because, in the ALJ's view, "it [was] consistent with [Plaintiff's] activities of daily living, observations and opinion of the consultative examiner, and the medical record demonstrating that [Plaintiff's] mental impairments [were] managed by [Plaintiff's] compliance with medication." (Id. at 18.)

The ALJ assigned only "partial weight" to the June 2014 opinion of Plaintiff's treating psychiatrist, Dr. Glover. (Id. at 18.) While the ALJ found that Dr. Glover's opinion was consistent with statements that Plaintiff had made regarding his feeling better after taking Trazodone and his statements regarding his ability to run errands and sleep well, the ALJ stated that he was assigning the opinion no greater weight because Dr. Glover had not provided a detailed function-by-function description of Plaintiff's capabilities. (Id.)

C. Steps Four and Five of the Sequential Evaluation

At Step Four, the ALJ found Plaintiff's past relevant work was not an issue because Plaintiff did not have past relevant work. (Id. at 19.) Finally, at Step Five, the ALJ determined that Plaintiff could perform unskilled light work with additional limitations. (Id. at 19.) In this regard, the ALJ relied on the VE's testimony to determine that, in light of Plaintiff's age, education, work experience, and RFC, there were jobs that Plaintiff could perform that existed in significant numbers in the national economy. (Id. at 19.)

The ALJ therefore concluded that Plaintiff had not been under a disability, as defined under the Act, since March 31, 2014, the date Plaintiff filed his disability application. (Id. at 20.)

III. REVIEW OF THE ALJ'S DECISION

Plaintiff alleges that the ALJ's decision was "erroneous, not supported by substantial evidence on the record, and/or contrary to the law," and contends that he is entitled to receive SSI benefits due to medical conditions that he claims to be disabling. (Compl. ¶¶ 4, 9.) Defendant seeks to affirm the ALJ's decision, arguing, in her brief, that the ALJ's RFC determination was free from legal error and supported by substantial evidence. (See generally Def. Mem.)¹⁸ Upon review, however, this Court recommends that this case be remanded for further administrative proceedings, on the bases that (1) the ALJ's analysis at Step Three of the sequential analysis was insufficient to determine whether Plaintiff met the criteria of Listing 14.08; and (2) the ALJ failed to develop the Record with respect to certain of Plaintiff's non-exertional impairments, including his well-documented cognitive impairment.¹⁹

18 Defendant specifically contends that the ALJ's RFC determination properly accounted for (1) Plaintiff's HIV conditions, by restricting him to "light" work, "with the additional physical limitations of no more than occasional climbing ramps or stairs, stopping, crouching, and kneeling, [and] no crawling or climbing of ladders, ropes, or scaffolds" (Def. Mem. at 13, 16); (2) Plaintiff's seizure disorder, by "limiting his exposure to heights, motor vehicles, and flashing lights" (id. at 16); and (3) Plaintiff's mental impairments (i.e., his depression, anxiety, and PTSD), by limiting him to "simple work in a low-stress, low-contact environment" (id. at 20).

19 While, at times, courts have held that a plaintiff's entirely conclusory allegations will be insufficient to defeat a motion by the Commissioner for judgment on the pleadings, see, e.g., DeJesus v. Astrue, 762 F. Supp. 2d 673, 685-86 (S.D.N.Y. 2011) (collecting cases), this Court remains mindful of Plaintiff's pro se status and his apparent hesitation in setting out his arguments without the benefit of counsel (see Letter to the Court from Plaintiff, dated Mar. 19, 2018 (Dkt. 17) (requesting an extension of time to file a memoranda in opposition to Defendant's motion for judgment on the pleadings while he attempted to obtain counsel)). Accordingly, this Court has undertaken a review of the Record, and of the ALJ's decision, in order to evaluate the merits of the Commissioner's motion.

A. The Supplemental Evidence Submitted by Plaintiff to the Appeals Council Does Not Itself Warrant Remand.

As a preliminary matter, this Court accepts Defendant's argument that the Appeals Council properly exercised its discretion in denying Plaintiff's request for review of the ALJ's decision based on the submission of additional documents, as the submitted documents cannot be found to have been "new and material." (See Def. Mem. at 24-25.)

As set out above, evidence is generally considered "new" if it was not before the ALJ and is not merely cumulative of evidence that was already in the record. See Drysdale v. Colvin, No. 14cv01722 (SN), 2015 WL 3776382, at *9 (S.D.N.Y. June 16, 2015) (citation omitted). Here, the additional Montefiore records presented by Plaintiff, dated August 6, 2014 to September 30, 2015, included medical treatment notes from Dr. Fox and progress notes from Dr. Glover. (R. at 378-510.) The medical treatment notes from Dr. Fox are duplicative of evidence that was already in the Record at the time the ALJ rendered his decision. As for Dr. Glover's progress notes, those notes are largely cumulative of information already contained in the Record, including that Plaintiff remained concerned about his weight loss and constant diarrhea (id. at 396); that he denied having significant depression, although he was sometimes anxious (id. at 413, 452); and that he was still experiencing symptoms related to his previously identified cognitive impairment (id. at 453). Thus, none of this evidence may be properly characterized as "new." See Revi v. Comm. of Soc. Sec., 16cv08521 (ER) (DF), 2018 WL 1136997, at *28 (S.D.N.Y. Jan. 30, 2018) (holding that remand was unwarranted because the evidence was not new, was cumulative, or was immaterial), report and recommendation adopted, 2018 WL 1135400 (Feb. 28, 2018).

Accordingly, the supplemental evidence submitted by Plaintiff to the Appeals Counsel does not, in itself, provide a basis for remand.

B. The ALJ's Determination , at Step Three, That Plaintiff's Impairments Did Not Meet or Equal Listing 14.08, Was Flawed.

Remand is appropriate, however, because of a flaw in the ALJ's analysis at Step Three of the sequential evaluation. At Step Three, the ALJ found that Plaintiff did not meet the requirements of Listing 14.08 (i.e., the Listing that addressed HIV), because, according to the ALJ, Plaintiff did not have, inter alia, HIV wasting syndrome "as described in the [L]isting," and because "[t]he record also [did] not show that [Plaintiff] suffer[ed] from diarrhea lasting for one month or longer, resistant to treatment, and requiring intravenous hydration, intravenous alimentation, or tube feeding." (R. at 12-13.) At the time of the ALJ's decision, the applicable Listing generally provided that "[a]ny individual with HIV infection . . . may be found disabled under this [L]isting if his or her impairment meets any of the criteria in 14.08 or is of equivalent severity to any impairment in 14.08." 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 14.00. Under Section 14.08H, as it existed at the time, HIV constituted a listed impairment if it was coupled with:

HIV wasting syndrome, characterized by involuntary weight loss of 10 percent or more of baseline (computed based on pounds), kilograms, or body mass index (BMI) or other significant

involuntary weight loss as described in [Listing] 14.00F5, and in the absence of a concurrent illness that could explain the findings. With either:

1. Chronic diarrhea with two or more loose stools daily lasting for 1 month or longer; or

2. Chronic weakness and documented fever greater than 38°C (100.4°F) for the majority of 1 month or longer.

Panella v. Colvin, 3:13-CV-869, 2016 WL 1275644, at *3 (N.D.N.Y. Mar. 31, 2016) (quoting 20 C.F.R. Pt. 404, subpt. P, App. 1, § 14.08H).

While it was Plaintiff's burden to show that his impairment or combination of impairments met all of the specified medical criteria in the relevant Listing, see Lamond v. Astrue, 440 F. App'x 17, 20 (2d Cir. 2011) (Summary Order) (quoting Sullivan v. Zebly, 493 U.S. 521, 530 (1990) (emphasis in original)), and Plaintiff has not specifically addressed this issue, this Court nevertheless finds that - based on the definition of HIV wasting syndrome that was then contained in the Listing - there was extensive evidence in the Record suggesting that Plaintiff either met the impairment listed in Section 14.08H or at least had a "medically equivalent" impairment. Accordingly, this Court recommends that the matter be remanded with a direction to the ALJ (1) to discuss, more fully, the evidence that could support a finding that the Listing was met; (2) to develop the Record to address any lack of clarity or omissions from Dr. Fox's treatment notes on this issue; and (3) to resolve any conflicting medical evidence, as necessary. See Green v. Colvin, 14-CV-6632P, 2016 WL 943620, at *8 (W.D.N.Y. Mar. 14, 2016) (noting that an ALJ is required to explain his determination that a claimant failed to meet or equal listings, where the claimant's symptoms appeared to match those described in the listings).

1. The ALJ's Failure To Address the Evidence of Plaintiff's Continued Weight Loss

The first characteristic of HIV wasting syndrome, as defined under the then-applicable Regulation, was a significant, involuntary, and otherwise unexplained weight loss. Here, Plaintiff testified that he had lost a substantial amount of weight - according to him, a total of approximately 30 to 40 pounds. (R. at 32.) As discussed below, the medical treatment notes directly corroborate a significant portion of that weight loss, and also suggest that Plaintiff had already been losing weight prior to the relevant period, such that his "baseline" weight was likely higher than any that was recorded in the medical notes for the time period under consideration. The notes also indicate that, over the relevant time, Plaintiff's weight loss was essentially continuous, involuntary, and unexplained.

As early as August of 2013, medical notes by Dr. Fox reflect that Plaintiff, who then weighed 125 pounds, reported that he had recently lost an abnormal amount of weight; more specifically, the notes indicate a loss of 20 pounds in all, with 10 of those pounds noted to have been lost within the prior year. (See id. at 254.) If Plaintiff had actually weighed 145 pounds before he started losing weight, then a loss of 20 pounds would represent a loss of over 13 percent of his body weight. While, a few months later, Dr. Fox noted that Plaintiff had gained back some weight, the treatment note indicates that his weight had then only increased by five pounds, to 130 pounds. (Id. at 267.)

Thereafter, throughout the relevant period, Plaintiff's weight appears to have dropped by another 10 pounds or more (with some minor fluctuations), with Dr. Fox consistently noting that Plaintiff's weight was abnormal. (See, e.g., id. at 289 (June 2014 note showing that Plaintiff weighed 130 pounds), 331 (August 2014 note that Plaintiff continued to complain of weight loss despite report of eating all the time), 340-41 (December 2014 note that Plaintiff was continuing to lose weight and reflecting that he then weighed approximately 124 pounds), 344 (March 2015 note stating that Plaintiff's weight had decreased from 136 to 125 pounds); 350 (May 2015 note that Plaintiff was recorded as weighing 118 pounds), 362 (September 2015 note that Plaintiff was recorded as weighing 120 pounds).)

Even without the significant weight loss that, according to Plaintiff, led up to the relevant period, a decrease from 130 to 118 pounds alone, as recorded over the course of several visits during the relevant period, represents a decrease of over nine percent of body weight. In the presented circumstances, where Plaintiff's doctors repeatedly commented that his weight was abnormal, a nine percent loss may be considered significant. And even assuming Plaintiff's baseline weight was 136 pounds (as recorded in April 2012 (see id. at 230; see also id. at 344)), before the steady decline that was recorded from April 2014 on, then his decrease to 118 or 120 pounds would plainly have represented a decrease of over 10 percent, which must be considered "significant" on its face. See Panella, 2016 WL 1275644, at *3 ("For purposes of [Listing] 14.08H, an involuntary weight loss of at least 10 percent of baseline is always considered 'significant.' Loss of less than 10 percent may or may not be significant, depending on the individual's baseline weight and body habitus." (citing 20 C.F.R. Pt. 404, subpt. P, App. 1, § 14.08F5)).

The Record, however, does contain one note by Dr. Fox, made in early 2015, that Plaintiff's continued inability to gain weight should not have been due to "wasting," as, at that time, his HIV did not appear to be advancing. (Id. at 346.) Nonetheless, Dr. Fox could not otherwise explain the cause of Plaintiff's weight loss (see, e.g., id. at 362),²⁰ and the documented fact of Plaintiff's weight loss, coupled with Plaintiff's own testimony on the subject, suggest that he may well have met the first requirement of Listing 14.08. The ALJ, however, did not address the evidence of record with respect to Plaintiff's significant weight loss, nor did he seek to develop the Record with respect to Dr. Fox's statement that the weight loss should not have been caused by HIV wasting syndrome.

20 Although Dr. Fox did indicate, in his medical treatment notes, that he was concerned that Plaintiff's weight loss could be attributable to lymphoma or some other type of cancer (id. at 341, 360-62, 368), it does not appear from the Record that Plaintiff was actually ever diagnosed with cancer, and, as of the date of the Hearing, Plaintiff had yet to undergo a biopsy.

2. The ALJ's Failure To Address the Evidence of Plaintiff's Chronic Diarrhea

Listing 14.08H's second requirement, for HIV wasting syndrome, was that the claimant suffer from either (a) chronic diarrhea with two or more loose stools daily, lasting for one month or longer, or (b) chronic weakness and documented fever. See Panella, 2016 WL 1275644, at *3 (citing 20 C.F.R. Pt. 404, subpt. P, App. 1, § 14.08H). Given the repeated references in the Record to Plaintiff's having diarrhea, there is also extensive evidence that this requirement was satisfied.

In fact, while the ALJ found that the Record did not show that Plaintiff suffered from diarrhea lasting for one month or longer, the Record was replete with complaints of diarrhea by Plaintiff over the course of many months, such that, at one point, Dr. Fox ordered that a colonoscopy be performed. (See R. at 331 (note of Plaintiff's complaint of diarrhea in August of 2014), 336 (note of Plaintiff's complaint of diarrhea in September of 2014), 344 (note indicating that Plaintiff's diarrhea had somewhat improved in March of 2015), 351 (note of diarrhea in May of 2015, with a colonoscopy ordered to check for parasites), 360 (note indicating some improvement in diarrhea), 396 (note by Dr. Glover that Plaintiff was reporting having diarrhea four to five times per day).) In line with these medical notes documenting Plaintiff's repeated complaints of diarrhea, Plaintiff then again confirmed, during the Hearing, that he continued to have diarrhea. (Id. at 42.) There was no discussion by the ALJ of this pertinent evidence, and no explanation as to why, in the face of this evidence, he nevertheless found that Plaintiff had not suffered from diarrhea lasting for one month or longer.

In this regard, it would appear that the ALJ, in considering Plaintiff's diarrhea symptoms, only considered them under a different portion of 14.08 than the portion that addressed wasting syndrome. Specifically, given that the ALJ wrote that Plaintiff did not meet any of the requirements of 14.08 because he did not suffer from diarrhea lasting for one month or later, "resistant to treatment, and requiring intravenous hydration, intravenous alimentation, or tube feeding," it seems that the ALJ only considered diarrhea under Listing 14.08I, rather than Listing 14.08H. See Crowell v. Colvin, No. 15cv2905 (PAE) (HBP), 2016 WL 5660405, at *5 (S.D.N.Y. Sept. 30, 2016) (discussing the listing requirements of 14.08I, and citing 20 C.F.R. Part 404, Subpart P, Appendix 1, Part A2, § 14.08I). If the ALJ did not consider a potentially applicable Listing, by looking only at the criteria for a different Listing that was less likely to apply, then the ALJ plainly committed error.

Accordingly, I recommend that this matter be remanded, and the ALJ directed, upon remand, to consider explicitly both the evidence of Plaintiff's weight loss and the evidence of his diarrhea, in light of the criteria of Listing 14.08H, as it stood at the relevant time. See, e.g., Pratts v. Chater, 94 F.3d 34, 38 (2d Cir. 1996) (finding remand appropriate where, inter alia, ALJ made several errors in assessing the evidence, including the evidence of plaintiff's weight loss of 20 pounds, which may have influenced the ALJ's determination that plaintiff was not disabled).

Further, if the ALJ were to find, upon remand, that there are any material ambiguities or conflicts in the Record regarding either the seriousness or cause of Plaintiff's weight loss, or the extent or duration of his diarrhea, then the ALJ should be directed take appropriate steps to develop the Record, including by seeking to gather further information from Plaintiff's treater, Dr. Fox, so as to resolve the ambiguities and reconcile the conflicts. See Ray v. Colvin, No. 13cv6595 (LTS) (JLC), 2014 WL 3883369, at *13 (S.D.N.Y. Aug. 7, 2014) (remanding so that ALJ could properly develop the record more fully regarding plaintiff's weight and her HIV-status); Wells v. Colvin, No. 1:13-CV-00776 (MAT), 2015 WL 6829711, at *4 (W.D.N.Y. Nov. 6, 2015) (holding that where a nurse practitioner had found that the plaintiff suffered from HIV wasting syndrome, but the records did not document diarrhea as a chief complaint, it was the ALJ's duty to reconcile the evidence).

Finally, if the ALJ again determines, upon remand, that Plaintiff's HIV neither met nor equaled Listing 14.08H, then he should be directed to provide a reasoned explanation for that determination. See Panella, 2016 WL 1275644, at *3; see also Murray v. Apfel, No. CV-97-6046 (ERK), 1998 WL 412639, at *7 (E.D.N.Y. 1998) (remanding for ALJ to rectify erroneous assessment of plaintiff's insomnia, diarrhea, and weight loss under the HIV wasting syndrome Listing); cf. McIntosh v. Berryhill, 17cv5403 (ER) (DF), 2018 WL 4376417, at *22 (S.D.N.Y. Jul. 16, 2018) (noting that, where a court is unable to fathom an ALJ's rationale in relation to evidence in the record for purposes of evaluating a claimant's satisfaction of a Listing requirement, the matter should be remanded for further explanation), report and recommendation adopted, 2018 WL 4374001 (Sept. 12, 2018); Ryan v. Astrue, 5 F. Supp. 3d 493, 508 (S.D.N.Y. Mar. 18, 2014) (noting that where credibility determinations and the drawing of inferences are required to determine whether a claimant's impairment meets or equals a Listing, the ALJ is required to explain his reasoning).

C. Remand Is Also Warranted Because of the ALJ's Failure To Develop the Record Regarding Plaintiff's Mental Impairments.

Even if, upon a proper analysis, the ALJ had found that Plaintiff's HIV impairment did not meet or equal a listed impairment, there was other evidence in the Record, which, if fully developed, could potentially have led the ALJ to find that Plaintiff's RFC was limited to the extent that he could not engage in gainful employment. Although Plaintiff was counseled at the Hearing, the ALJ, as noted above, nonetheless had an affirmative duty to develop the Record where there were obvious gaps in the evidence regarding Plaintiff's impairments. Shaw, 221 F.3d at 131. In this case, there were obvious gaps in the evidence regarding Plaintiff's mental impairments, including: (1) the severity and effect of Plaintiff's cognitive deficits, and (2) the extent to which Plaintiff would likely be off task during a typical workday. The ALJ's failure to develop the Record on each of these points - including by seeking a function-by-function assessment by Plaintiff's treating psychiatrist, Dr. Glover (whose opinion the ALJ discounted for the very reason that such an assessment had not been provided (see id. at 18)) - is another reason why remand is warranted.

1. Plaintiff's Cognitive Deficits

The Record clearly shows that Plaintiff suffered from cognitive deficits. The evidence indicates that Plaintiff had been placed in special education and had dropped out of school as early as the seventh or eighth grade. (Id. at 35, 181.) Further, the Record reflects that Plaintiff was specifically diagnosed with a cognitive impairment by both his treating psychiatrist, Dr. Glover (see id. at 294-95), and his primary care physician, Dr. Fox, who, in fact, indicated cognitive impairment to be Plaintiff's "main" issue (id. at 284). Dr. Nikkah, a consultative examiner who had conducted a mental status examination of Plaintiff, explicitly found that Plaintiff was limited in intellectual functioning with respect to memory, that his intellectual functioning was in the "borderline range," and that he had a limited general fund of information. (Id. at 275.) Medical treatment notes also seem to confirm ongoing, albeit inconsistent, concerns regarding Plaintiff's memory, including that Plaintiff had failed a memory test (id. at 294), that he had difficulty with memory (id. at 306-07), and that caution was to be exercised when relying upon Plaintiff's self-reported adherence to his medication regimen, as he was "[c]learly forgetting things" (id. at 367). While Dr. Glover indicated, in June of 2014, that Plaintiff's cognitive impairment was mild, she also indicated, without further explanation, that it might be "multifactorial" (id. at 295), and, in September of 2015, she noted that that the impairment caused Plaintiff confusion and difficulty with navigating (id. at 453). Finally, at the Hearing, Plaintiff testified to having difficulty with comprehending words and with doing math. (Id. at 43.)

While Defendant argues that the ALJ's RFC determination was supported by substantial evidence because the mental status examinations generally indicated mild findings, and because, at certain points in time, Dr. Glover had also characterized Plaintiff's cognitive impairment as "mild" (see Def. Mem. at 19), Defendant does not address the failure of the ALJ to reconcile such evidence with the seemingly contrary opinion of Dr. Fox that Plaintiff's main issue was cognitive impairment, the finding by Dr. Nikkah that Plaintiff's intellectual functioning was limited, the numerous indications in the Record that Plaintiff's memory was impaired, and Plaintiff's claims that he had difficulties with word comprehension and math. Nor does it appear that the Record, as it stands, is sufficient to enable this evidence to be reconciled, as the evidence of Plaintiff's cognitive functioning does not include any objective assessments.

At the Hearing, Plaintiff's counsel specifically requested that the ALJ further develop the Record by having a consultative examiner perform an I.Q. test. (Id. at 30, 50.) Despite this request, the ALJ did not then seek to have any such testing performed, nor did the ALJ take any other steps to obtain an objective evaluation of Plaintiff's cognitive abilities during the relevant period. Instead, the ALJ, without explanation, ignored any deficiencies in the Record in this regard, simply excluded any consideration of cognitive impairment at Step Two of the sequential analysis, and then only cursorily addressed Plaintiff's cognitive deficits at Step Five - finding, summarily, that Plaintiff "ha[d] [the] mental capabilities to perform many activities." (Id. at 16.) This was insufficient. See Jarvis v. Colvin, 6:15-CV-1016 (LEK), 2016 WL 4148352, at *6 (N.D.N.Y. Aug. 4, 2016) (holding that ALJ should have ordered intelligence testing be performed); Beckwith v. Colvin, No. 6:13-cv-01095 (MAD/CFH), 2015 WL 799865, at *12-13 (N.D.N.Y. Feb. 25, 2015) (holding that the ALJ should have ordered that neurological testing be performed to develop the administrative record fully regarding plaintiff's cognitive limitations); Jackson, 694 Fed. App'x 39, 41-42 (2d Cir. 2017) (Summary Order) (holding that the ALJ should have ordered that an objective assessment, such as I.Q. testing, be performed to measure plaintiff's cognitive impairments).

On the current state of the Record, this Court cannot ascertain whether Plaintiff's cognitive impairments should have required further limitations in his RFC. Accordingly, remand is appropriate so that the ALJ may remedy the gap in the evidence by requesting that objective testing be performed to evaluate the actual extent and effect of Plaintiff's cognitive deficits. See Matta v. Colvin, 13cv5290 (CS) (JCM), 2016 WL 524652, at *10 (S.D.N.Y. Feb. 8, 2016) (remanding due to ALJ's failure to develop the administrative record regarding plaintiff's cognitive disorders); see also Jackson, 694 Fed. App'x at 41 (remanding where ALJ should have further developed the record with respect to plaintiff's cognitive impairments). At a minimum, as discussed further below, the ALJ should solicit a function-by-function assessment of Plaintiff's mental impairments from his treating psychiatrist, Dr. Glover, or otherwise take steps to obtain such an assessment from a consultative examiner.

2. Plaintiff's Ability To Remain on Task

Although the ALJ's RFC determination with respect to Plaintiff's exertional limitations was generally supported by substantial evidence,²¹ the ALJ's RFC specific determination with respect to Plaintiff's non-exertional limitations was, at least in one respect, unsupported. There is no direct professional assessment in the Record to support the ALJ's finding that Plaintiff would only need to be off task for five percent of a regular workday.

21 Despite the ALJ's purported discounting of Dr. Fox's opinion, the exertional limitations incorporated by the ALJ in Plaintiff's RFC largely reflected much of Dr. Fox's function-by-function assessment of Plaintiff's exertional limitations. (Compare, e.g., R. at 284 (limiting Plaintiff to being able to occasionally lift and carry up to 20 pounds and frequently lift and carry up to 10 pounds and being able to sit up to eight hours in a workday, and being able to stand or walk up for up to six hours in a workday), with id. at 14 (RFC determination limiting Plaintiff to "light work" with additional limitations).)

On this issue, it should first be noted that, in determining Plaintiff's RFC, the ALJ discounted the June 2014 medical opinion of Plaintiff's treating psychiatrist, Dr. Glover, for the stated reason that Dr. Glover's opinion did not include a function-by-function assessment of Plaintiff's mental impairments and non-exertional limitations. (R. at 18.) Under the treating physician rule, the medical opinion of Dr. Glover should have been entitled to controlling weight, or at least more weight than the opinions of non-treaters. See, e.g., Gonzalez, 113 F. Supp. 2d at 589. Thus, if the ALJ believed that Dr. Glover's opinion was missing a function-by-function assessment and that such an assessment was necessary for the opinion to be accorded greater weight, then he should have solicited the assessment from Dr. Glover, rather than merely discount her opinion. See Paterson v. Colvin, No. 12cv3020 (LTS) (JLC), 2014 WL 4419688, at *13 (S.D.N.Y. Sept. 9, 2014), report and recommendation adopted, 2014 WL 4977493 (Oct. 3, 2014).

In any event, in then relying on the opinions of the medical consultants (Drs. Nikkah and Inman-Dundon), the ALJ did not explain how those opinions supported the determination that Plaintiff would likely be off task for only five percent of the workday. Certainly, neither of the consultants provided an explicit opinion on the point. Dr. Nikkah, a consultative examiner, only found that, while Plaintiff could understand simple directions and perform simple tasks, he also had "mild" impairments in his ability to maintain attention and concentration and "moderate" limitations in, inter alia, his ability to maintain a regular schedule and appropriately deal with stress (id. at 276). Dr. Inman-Dundon, a non-examining consultant, then found, based on the existing medical record, that Plaintiff had "moderate" limitations with respect to, inter alia, his ability to perform activities within a schedule, maintain regular attendance, and be punctual with customary tolerances; to complete a normal workday and workweek without interruptions from psychologically based symptoms; and to perform at a consistent pace without an unreasonable number and length of rest periods (id. at 74-75). Furthermore, it was Dr. Inman-Dundon's opinion that, while Plaintiff could sustain attention and concentration for simple tasks, his depression moderately interfered with his ability to sustain pace (see id. at 76). Neither of these consultants indicated, in their reports, that Plaintiff would likely be off task no more than five percent of a workday, provided he were limited to simple, routine tasks in a low-stress environment, as set out in the ALJ's RFC determination.

As indicated by the testimony of the VE at the Hearing, the determination of the percentage of time that Plaintiff would likely be off task was potentially critical to the determination of whether there were jobs in the national economy that he could perform. When asked by the ALJ if a hypothetical individual with the other limitations ascribed by the ALJ to Plaintiff would be able to work if he were off task 20 percent of the time, the VE answered that even being off task 15 percent of the workday would not be tolerated in the workplace. (See R. at 49.) The ALJ, however, did not explain why, in his view, the findings of the consultative examiners - which, as set out above, included findings of "moderate" impairments in relevant areas - supported the determination that Plaintiff would not reach that level.

Even if the ALJ's determination that Plaintiff would only be off task for five percent of the workday could be sustainable based on the Record, the ALJ's lack of explanation of his reasoning hinders this Court in its ability to assess the determination meaningfully. See Stellmaszyk, 2018 WL 4997515, at *27 (finding that the court could not engage in a meaningful review of whether non-exertional limitations were properly incorporated into the RFC assessment); cf. McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (holding that the ALJ's failure to include non-exertional impairments expressly in the RFC determination was harmless error, provided that the RFC findings afforded an adequate basis for meaningful review, applied the proper legal standards, and were supported by substantial evidence).

Accordingly, should the ALJ again find, upon remand, that Plaintiff's HIV impairment does not meet or equal a Listed impairment, he should be directed to solicit a function-by-function assessment from Dr. Glover, or at least from a consultative examiner, that would shed more particular light on the question of the percentage of time that Plaintiff would likely be off task during the workday. See Stellmaszyk, 2018 WL 4997515, at *24 (noting that the lack of a function-by-function assessment by a treater can be a basis for remand, if the record is not sufficiently comprehensive). The ALJ should also be directed to set out his reasoning for any renewed or revised finding on this issue.

CONCLUSION

For all of the foregoing reasons, I respectfully recommend that the Commissioner's unopposed motion for judgment on the pleadings (Dkt. 15) be denied, and that this case be remanded for further administrative proceedings, with instructions to the ALJ:

(1) to engage in a full analysis as to whether, during the relevant period, Plaintiff had an impairment or combination of impairments that met or equaled Listing 14.08, specifically for HIV wasting syndrome (as the criteria for that impairment were set out at the relevant time, in Listing 14.08H), developing the Record as appropriate, and reconciling any conflicting evidence, as necessary, to make that analysis; and, if the ALJ again finds that Plaintiff's impairments do not meet or equal a Listing, then

(2) to reassess Plaintiff's RFC, after developing the Record with respect to (a) the extent and effects of Plaintiff's cognitive impairment, and (b) the degree to which, during the relevant period, Plaintiff would have been able to remain on task during the workday.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable P. Kevin Castel, United States Courthouse, 500 Pearl Street, Room 1020, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, Room 1660, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Castel. As Plaintiff is proceeding in this action pro se, any submissions he makes to the Court (including any objections to this Report and Recommendation for filing, any courtesy copies for judges' chambers, and any requests for extensions of time) should be mailed or otherwise delivered by him to the Court's Pro Se Office. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). Dated: New York, New York

March 6, 2019

Respectfully submitted,

/s/_________

DEBRA FREEMAN

United States Magistrate Judge Copies to: Hon. P. Kevin Castel, U.S.D.J.
All counsel (via ECF)