Opinion
1:19-cv-07474-LGS-GRJ
04-11-2022
DIANA C., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES, UNITED STATES MAGISTRATE JUDGE
In November of 2015, Plaintiff Diana C. applied for Disability Insurance Benefits and Supplemental Security Income benefits under the Social Security Act. The Commissioner of Social Security denied the applications in part. Plaintiff, represented by Ny Disability, LLC, Daniel Berger, Esq., of counsel, commenced this action seeking judicial review of the Commissioner's denial of benefits under 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
Plaintiff's name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
This case was referred to the undersigned on December 29, 2021, for a report and recommendation. Presently pending are the parties' Motions for Judgment on the Pleadings under Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket No. 39, 43). For the following reasons, it is recommended that Plaintiff's motion be granted, the Commissioner's motion denied, and this matter remanded for calculation of benefits.
I. BACKGROUND
A. Administrative Proceedings (First Decision)
Plaintiff applied for benefits on November 3, 2015, alleging disability beginning October 5, 2012. (T at 272-85). Plaintiff's applications were denied initially and on reconsideration. She requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on August 2, 2018, before ALJ Lori Romeo. (T at 36-82). Plaintiff amended her alleged onset date to July 11, 2014. (T at 42-43).
Citations to “T” refer to the administrative record transcript at Docket Nos 12 & 32.
On August 27, 2018, ALJ Romeo issued a decision finding that Plaintiff was not disabled, as defined under the Social Security Act, prior to August 1, 2016, but did become disabled on that date and was therefore entitled to benefits for the period between August 1, 2016, and August 27, 2018 (the date of the ALJ's decision) (T at 11-35). The Appeals Council denied Plaintiff's request for review on June 14, 2019. (T at 1-6).
B. Procedural History (Sentence Six Remand)
Plaintiff commenced this action, by and through her counsel, by filing a Complaint on August 9, 2019. (Docket No. 1). The parties filed cross motions for judgment on the pleadings. (Docket Nos. 13, 17). On August 14, 2020, the Honorable Kevin Fox, United States Magistrate Judge, issued a report and recommendation, recommending remand for further proceedings under sentence six of 42 U.S.C. § 405 (g). (Docket No. 20). On August 31, 2020, the Honorable Lorna G. Schofield, United States District Judge, issued an order adopting the Report and Recommendation and directing the sentence six remand. (Docket No. 21).
C. Administrative Proceedings (On Remand)
On November 1, 2020, the Appeals Council remanded the case for further proceedings. (T at 1447). A further administrative hearing was held on April 16, 2021, before ALJ Romeo. (T at 1345). Plaintiff appeared with an attorney and testified. (T at 1355-62). The ALJ also received testimony from Linda Vause, a vocational expert. (T at 1363-71).
D. ALJ's Second Decision
On April 29, 2021, ALJ Romeo issued a decision denying Plaintiff's claim for benefits with respect to the period between July 11, 2014 (the amended alleged onset date), and July 31, 2016 (T at 1320-44).
The ALJ found that Plaintiff had not engaged in substantial gainful activity since the amended alleged onset date and met the insured status requirements of the Social Security Act through December 31, 2017 (the date last insured). (T at 1325-26). The ALJ concluded that Plaintiff's asthma, allergies, knee impairment, obesity, unspecified depression, and anxiety were severe impairments as defined under the Act. (T at 1326). The ALJ further found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 403, Subpart P, Appendix 1 during the time period at issue. (T at 1326).
The ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform light work, as defined in 20 CFR 404.1567 (b) and 416.967 (b), with the following limitations: she can lift and carry 20 pounds occasionally and 10 pounds frequently; stand and walk for 6 hours in an 8-hour workday; and sit for 6 hours in an 8-hour workday. (T at 1329). The ALJ assessed no limitations as to pushing or pulling, reaching, or handling, but concluded that Plaintiff could not kneel, crouch, or crawl; and was limited to working indoors with normal indoor quality and no exposure to temperature extremes or respiratory irritants. (T at 1329).
Regarding Plaintiff's mental health, the ALJ found that Plaintiff could perform work requiring little to no judgment, with simple duties that a person could learn on the job in a short period of time (SVP of 1 or 2); was limited to low stress work with only occasional decision-making and occasional changes in the work setting and only occasional interaction with the public and co-workers. (T at 1329).
The ALJ concluded that Plaintiff could not perform her past relevant work as a child monitor or housekeeper cleaner. (T at 1335). However, considering Plaintiff's age (49 on the amended alleged onset date), education (limited), work experience, and RFC, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed during the period in question. (T at 1336). As such, the ALJ found that Plaintiff had not been under a disability, as defined under the Social Security Act, and was not entitled to benefits for the period between July 11, 2014 (the amended alleged onset date) and July 31, 2016 (the date prior to the previously determined disability onset date). (T at 1337). ALJ Romeo's decision is considered the Commissioner's final decision.
E. Procedural History (Following Remand)
Plaintiff filed a motion for judgment on the pleadings, supported by a memorandum of law, on November 10, 2021. (Docket No. 39, 40). In response the Commissioner filed a motion for judgment on the pleadings, supported by a memorandum of law, on February 14, 2022. (Docket No. 43, 44). On March 21, 2022, Plaintiff submitted a reply memorandum of law in further support of her motion. (Docket No. 47).
II. APPLICABLE LAW
A. Standard of Review
“It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). The court's review is limited to “determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings, which are considered conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted).
“When there are gaps in the administrative record or the ALJ has applied an improper legal standard, ” or when the ALJ's rationale is unclear, remand “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. Five-Step Sequential Evaluation Process
Under the Social Security Act, a claimant is disabled if he or she lacks the ability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months ....” 42 U.S.C. § 423(d)(1)(A).
A claimant's eligibility for disability benefits is evaluated pursuant to a five-step sequential analysis:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a “severe impairment, ” the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform.See Rolon v. Commissioner of Soc. Sec., 994 F.Supp.2d 496, 503 (S.D.N.Y. 2014); see also 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
The claimant bears the burden of proof as to the first four steps; the burden shifts to the Commissioner at step five. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner determines whether claimant can perform work that exists in significant numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).
III. DISCUSSION
Plaintiff raises three arguments in support of her challenge to the ALJ's decision. First, she contends that the ALJ failed adequately to address the medical opinion evidence. Second, Plaintiff asserts that the ALJ's Listings analysis was flawed. Third, Plaintiff contends that the ALJ improperly discounted her credibility. This Court will address each argument in turn.
A. Medical Opinion Evidence
“Regardless of its source, the ALJ must evaluate every medical opinion in determining whether a claimant is disabled under the [Social Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. §§ 404.1527(c), 416.927(d) (2020)) (internal quotation marks omitted).
A “treating physician” is the claimant's “own physician, psychologist, or other acceptable medical source who provides [the claimant] ... with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the claimant].” 20 C.F.R. § 404.1502.
Treating physician opinions are considered particularly probative because they “are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical evidence alone or from reports of individual examinations.” 20 C.F.R. §§ 404.1527(c)(2); 416.927(d)(2).
An opinion from a treating physician is afforded controlling weight as to the nature and severity of an impairment, provided the opinion “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2); 416.927(d)(2).
Treating physician opinions, however, are not always dispositive. For example, an opinion will not be afforded controlling weight if it is “not consistent with other substantial evidence in the record, such as the opinions of other medical experts.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
To determine how much weight a treating physician's opinion should be given, the ALJ considers the “Burgess factors” identified by the Second Circuit: “(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019)(following Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)).
The Burgess factors are also applied to the opinions of non-treating physicians, “with the consideration of whether the source examined the claimant or not replacing the consideration of the treatment relationship between the source and the claimant.” McGinley v. Berryhill, No. 17 Civ. 2182, 2018 WL 4212037, at *12 (S.D.N.Y. July 30, 2018).
In the present case, Dr. Mark Rybakov, Plaintiff's treating psychiatrist, completed an assessment in January 2014 of functional limitations resulting from a mental/intellectual impairment. Dr. Rybakov diagnosed Major Depressive Disorder, Moderate. (T at 699). He had been treating Plaintiff weekly in group sessions and monthly for medication since August of 2012. (T at 699). Dr. Rybakov reported that Plaintiff had marked restriction in activities of daily living, marked difficulty in maintaining social functioning, and marked impairment with respect to performing tasks and concentrating. (T at 699-700). Dr. Rybakov opined that Plaintiff's symptoms would be exacerbated in work or work-like settings, resulting in withdrawal from situations and poor attendance. (T at 700). He believed Plaintiff had numerous restrictions in her ability to perform unskilled work, including responding to supervisors, maintaining appropriate attention, maintaining attendance, responding appropriately to criticism and changes, and performing at a consistent pace without an unreasonable number and length of rest periods. (T at 701).
Dr. Rybakov completed another assessment in February of 2014. He assigned a Global Assessment of Functioning (“GAF”) score of 55. (T at 703). “A GAF score from 60-51 represents moderate symptoms or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with co-workers).” Vanterpool v. Colvin, No. 12-CV-08789 (VEC)(SN), 2014 U.S. Dist. LEXIS 68303, at *6 n.5 (S.D.N.Y. Apr. 22, 2014). He characterized Plaintiff's prognosis as “guarded” and assessed marked restriction in her activities of daily living, marked difficulties in maintaining social functions, and marked deficiencies of concentration, persistence, or pace. (T at 705-707). Dr. Rybakov opined that Plaintiff would have severe limitation in her ability to satisfy an employer's normal quality, production, and attendance standards; marked limitation in responding to customary work procedures; and moderate limitation in her ability to perform simple tasks on a sustained basis in a full-time setting. (T at 709).
The GAF “ranks psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.” Pollard v. Halter, 377 F.3d 183, 186 (2d Cir. 2004).
Dr. Rybakov completed another assessment in December of 2015. Plaintiff's GAF score remained a 55 and her prognosis was described as “fair.” (T at 456). Dr. Rybakov assessed mild to moderate limitation as to Plaintiff's understanding and memory; mild limitation in terms of carrying out very short and simple instructions; marked limitation in maintaining attention and concentration for extended periods; and extreme limitation with regard to performing activities within a schedule, maintaining regular attendance, and being punctual within customary tolerances. (T at 457). He opined that Plaintiff had mild limitations as to social interaction but marked impairment in her 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 of and length of rest periods. (T at 458). Dr. Rybakov described Plaintiff as presenting with low energy and anxious mood, social isolation, poor memory and concentration, and difficulty sleeping. (T at 459). He believed Plaintiff's impairment would substantially interfere with her ability to work on a regular and sustained basis at least 20% of the time. (T at 459).
The ALJ determined that she could not “accord great weight” to Dr. Rybakov's opinions because “they are not consistent with, or fully supported by the contemporaneous medical evidence of record.” (T at 1333-1334). The ALJ also found Dr. Rybakov's assessments inconsistent with the findings of the consultative examiner. (T at 1334).
This Court concludes that the ALJ's decision to discount Dr. Rybakov's assessments is not supported by substantial evidence and not consistent with applicable law.
The Second Circuit has recognized the particular value of treating source opinions when reviewing claims involving mental impairments. See Flynn v. Comm'r of SSA, 122 (2d Cir. 2018)(“The treatment provider's perspective would seem all the more important in cases involving mental health, which are not susceptible to clear records such as [x-rays] or MRIs. Rather, they depend almost exclusively on less discretely measurable factors, like what the patient says in consultations.”).
Notably, Dr. Rybakov had an extended treating relationship with Plaintiff (more than three years of at least monthly visits at the time of his December 2015 assessment). (T at 703, 3201). Thus, he was the medical professional “most able to provide a detailed, longitudinal picture of [Plaintiff's] medical impairment(s), ” with “a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations.” Marinez v. Comm'r of Soc. Sec., 269 F.Supp.3d 207, 216 (S.D.N.Y. 2017) (citing 20 C.F.R. § 416.927(c)(2)).
In discounting Dr. Rybakov's assessments pointed to the fact that Plaintiff consistently attended her mental health appointments and had “generally normal” mental status examinations, with symptoms that “appear to be secondary to family or medical stress.” (T at 1333-1334). This conclusion is flawed in several respects.
First, the ALJ's decision to discount the treating psychiatrist's opinion was not based on a reasonable reading of the treating history. Although Plaintiff was generally cooperative and coherent during medical appointments, she was also consistently described as depressed, anxious, and with restricted affect and impaired memory and concentration. (T at 3281, 3293, 3299, 3301, 3307, 3325, 3344, 3345, 3383). See Stacey v. Comm'r of SSA, 799 Fed.Appx. 7, 10 (2d Cir. 2020)(cautioning “ALJs against scouring medical notes to draw their own conclusions based on isolated descriptions”); Gough v. Saul, 799 Fed.Appx. 12, 14 (2d Cir. 2020)(“We fear that the ALJ cherry-picked evidence from the record to support his conclusion that Gough could work full time even though the record as a whole suggested greater dysfunction.”).
Second, the ALJ overrated the relevance of Plaintiff's ability to maintain appropriate attendance and affect during brief, relatively infrequent (weekly or monthly) encounters with supportive mental health professionals.
The Commissioner's regulations recognize that a claimant's “ability to complete tasks in settings that are highly structured, or that are less demanding or more supportive than typical work settings does not necessarily demonstrate [her] ability to complete tasks in the context of regular employment during a normal workday or work week.” 20 C.F.R. Subpt. P, App. 1 § 12.00 (C) (6) (b); see also Primo v. Berryhill, 17 Civ. 6875, 2019 U.S. Dist. LEXIS 27074, at *31 (S.D.N.Y. Feb. 19, 2019)(noting that ALJs must recognize that “the effects of a mental health issue may be different in a work setting than in a non-work setting”); Flynn v, 729 Fed.Appx. at 121 (decision to discount opinion based on treatment notes indicating claimant was “well-groomed and with calm affect” was “an assessment ... beyond the scope of the ALJ's authority”).
Third, the ALJ failed to consider the extent to which Plaintiff's symptoms would be expected to be exacerbated if she was exposed to the demands of competitive, remunerative work on a consistent basis. On this issue the judgment of her long-time treating psychiatrist was that Plaintiff would decompensate and be unable to perform key duties, including maintaining attendance. (T at 457, 458, 459, 700, 701, 709). The ALJ's decision to discount that conclusion based primarily on mental status examinations fails to reflect the proper application of the treating physician's rule. See Stacey, 799 Fed.Appx. at 11 (“It would be improper to rely on these mental status evaluations to conclude that Stacey is capable of prolonged concentration while simultaneously ignoring the contrary conclusion of the very physicians who made the evaluations.”).
Lastly, the ALJ's decision cannot be salvaged by reference to the consultative examination and/or the opinion of the State Agency review physician.
Dr. Michael Kushner performed a consultative psychiatric evaluation in December of 2015. Apparently, Dr. Kushner did not review any of Plaintiff's treatment records. (T at 461). Dr. Kushner conducted a mental status examination and reported that Plaintiff displayed appropriate affect, euthymic mood, with clear sensorium and orientation. (T at 462). He described her attention, concentration, and memory as “impaired, ” found her intellectual functioning to be below average, and characterized her insight and judgment as “fair.” (T at 462-63).
Dr. Kusher assessed no limitation as to Plaintiff's ability to follow and understand simple directions and instruction. (T at 463). He opined that she would have moderate limitation in maintaining attention and concentration, as well as with respect to maintaining a regular schedule. (T at 463). Dr. Kusher found no limitation with regard to Plaintiff's ability to make appropriate decisions but assessed moderate limitation in terms of relating adequately with others and appropriately dealing with stress. (T at 463).
The ALJ gave “some weight” to Dr. Kusher's opinion and cited it as a reason for discounting Dr. Rybakova's assessments. (T at 1334). Dr. Kusher's opinion, however, is at least partially supportive of Dr. Rybakov's conclusions. Although Dr. Kusher assessed somewhat less severe limitation, both psychiatrists found significant limitation with respect to Plaintiff's ability to attend, concentrate, and maintain a regular work schedule. (T at 458, 459, 463, 700, 701, 705-707, 709). The Second Circuit has long cautioned that “ALJs should not rely heavily on the findings of consultative physicians after a single examination.” Selian v. Astrue, 708 F.3d 409, 419 (2d Cir. 2013)(citing Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990)). “This concern is even more pronounced in the context of mental illness where ... a one-time snapshot of a claimant's status may not be indicative of her longitudinal mental health.” Estrella, 925 F.3d 90, 98 (2d Cir. 2019).
The ALJ also gave some weight to the opinion of Dr. K. Lieber-Diaz, the non-examining State Agency review psychologist. (T at 1335). In December of 2015, Dr. Lieber-Diaz assessed mild restriction in Plaintiff's activities of daily living, mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. (T at 128). It appears Dr. Lieber-Diaz may not have had access to Dr. Rybakov's treatment notes. (T at 129). In any event, the opinion of a nonexamining physician cannot, without more, constitute substantial evidence. See Vargas v. Sullivan, 898 F.2d 293, 295 (2d Cir. 1990).
This Court is mindful that when the record contains competing medical opinions, it is the role of the Commissioner to resolve such conflicts. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”). On the other hand, it is “well-settled that ‘the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion .... While an [ALJ] is free to . choose between properly submitted medical opinions, he is not free to set his own expertise against that of a physician who [submitted an opinion to or] testified before him.” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998)(quoting McBrayer v. Secretary of Health and Human Servs., 712 F.2d 795, 799 (2d Cir. 1983) (alterations in original). That is what the ALJ did here.
Therefore, for the foregoing reasons, the Court concludes that the ALJ's decision to discount multiple assessments from Plaintiff's long-time treating psychologist cannot be sustained. A remand is therefore warranted.
B. Listings Analysis
At step three of the sequential evaluation, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals an impairment listed in Appendix 1 of the Regulations (the “Listings”). See 20 C.F.R. §§ 404.1520(d), 416.920(d). If a claimant meets or equals a listed impairment, she is “conclusively presumed to be disabled and entitled to benefits.” Bowen v. City of New York, 476 U.S. 467, 471, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). “The claimant bears the burden of establishing that his or her impairments match a Listing or are equal in severity to a Listing." Henry v. Astrue, 32 F.Supp.3d 170, 182 (N.D.N.Y. 2012) (citing Naegele v. Barnhart, 433 F.Supp.2d 319, 324 (W.D.N.Y.2006)).
The ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equals one of the impairments set forth in the Listings. (T at 1326). Plaintiff argues that the ALJ erred because her impairments satisfy the “B” criteria for Listings 12.04 (Depressive, bipolar and related disorders) and 12.06 (Anxiety and obsessive-compulsive disorders). The “B” criteria for these Listings are met when a claimant has extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: understanding, remembering, or applying information; interacting with others; maintaining concentration, persistence, or pace; and adapting or managing oneself.
The ALJ found that Plaintiff had moderate limitation in each of these domains and, thus, the paragraph “B” criteria for Listings 12.04 and 12.06 were not satisfied. (T at 1327-28). In contrast, however, Dr. Rybakov found marked difficulty in maintaining social functioning and marked impairment with respect to performing tasks and concentrating. (T at 699-700, 705707). Thus, the ALJ's Listings analysis is undermined by her errors in the evaluation of Dr. Rybakov's opinions, as discussed above. For the same reasons, this Court concludes that the ALJ's Listings analysis cannot be sustained.
The ALJ's RFC determination should not be sustained for the same reason. The ALJ's conclusion that Plaintiff could meet the attention, attendance, and concentration demands of competitive, remunerative work even with limitations (e.g. low stress, simple duties) is at odds with Dr. Rybakov's assessments of marked limitations in these domains. The ALJ's failure to give proper consideration to those assessments thus undermines the RFC determination.
C. Credibility
A claimant's subjective complaints of pain and limitation are “an important element in the adjudication of [social security] claims and must be thoroughly considered in calculating the [RFC] of a claimant.” Meadors v. Astrue, 370 Fed.Appx. 179, 183 (2d Cir. 2010) (citation omitted); see also 20 C.F.R. § 416.929. However, “the ALJ is ... not required to accept the claimant's subjective complaints without question.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citations omitted).
Rather, the ALJ “may exercise discretion in weighing the credibility of the claimant's testimony in light of other evidence in the record.” Id. (citation omitted); see also Henningsen v. Comm'r of Soc. Sec., 111 F.Supp.3d 250, 267 (E.D.N.Y. 2015) (“The ALJ retains discretion to assess the credibility of a claimant's testimony regarding disabling pain and ‘to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant.'” (quoting Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979))).
The ALJ follows a two-step process in evaluating a claimant's credibility.
First, “the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged.” Genier, 606 F.3d at 49 (citation omitted).
Second, “the ALJ must consider the extent to which the claimant's symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence of record.” Id. (citation, alterations, and quotation marks omitted). The ALJ must “consider all of the available medical evidence, including a claimant's statements, treating physician's reports, and other medical professional reports.” Fontanarosa v. Colvin, No. 13-CV-3285, 2014 U.S. Dist. LEXIS 121156, at *36 (E.D.N.Y. Aug. 28, 2014) (citing Whipple v. Astrue, 479 Fed.Appx. 367, 370-71 (2d Cir. 2012)).
If the claimant's allegations of pain and limitation are “not substantiated by the objective medical evidence, the ALJ must engage in a credibility inquiry.” Meadors, 370 Fed.Appx. at 184. This inquiry involves seven (7) factors: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medications taken to alleviate the pain; (5) any treatment, other than medication, that the claimant has received; (6) any other measures that the claimant employs to relieve the pain; and (7) other factors concerning the claimant's functional limitations and restrictions as a result of the pain. See 20 C.F.R. § 404.1529(c)(3)(i)-(vii)).
In the present case, Plaintiff testified as follows: During the period prior to August 1, 2016, she was very depressed, unable to sleep, and had difficulty concentrating. (T at 1356-57). She performed light household chores with help from her husband and son. (T at 1357). It was difficult to get out of bed in the morning and she had trouble keeping appointments. (T at 1358-1359). She would have daily crying spells. (T at 1360). She isolated herself socially. (T at 1361-62).
The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms, but determined that Plaintiff's statements concerning the intensity, persistence, and limited effects of the symptoms were not entirely credible. (T at 1333).
This Court concludes that the ALJ's credibility determination cannot be sustained. The ALJ found Plaintiff's subjective complaints not supported by the objective medical records. (T at 1333). This finding ignores the assessments of Dr. Rybarov, her long-time treating psychiatrist, who assessed marked difficulty in maintaining social functioning, marked impairment with respect to performing tasks and concentrating, and marked impairment in her 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 of and length of rest periods. (T at 458, 459, 699-700, 705-707). As outlined above, the ALJ did not afford proper weight to Dr. Rybarov's assessments, which in turn undermines the decision to discount Plaintiff's subjective complaints.
The ALJ also pointed to Plaintiff's activities of daily living (which included simple chores, using public transportation, paying bills, watching television, and spending time with her boyfriend) as suggestive of a greater ability to perform the mental demands of basic work activity. (T at 1333). Notably, however, Plaintiff testified that she performed many of these activities on a limited basis, and nearly always with help. (T at 319, 463, 1357, 1361).
A claimant “need not be an invalid to be found disabled” and should not be punished for exerting the effort to attend to basic necessities of life. See Balsamo v. Chater, 142 F.3d 75, 81-82 (2d Cir. 1998). Indeed, as discussed above, the treatment record extensively documents significant symptoms persisting over time. Plaintiff's ability to attend to basic activities with the support of her family does not translate into an ability to perform competitive work on a consistent basis. See Estrella, 925 F.3d at 97; Samaru v. Comm'r of Soc. Sec., No. 18-cv-06321(KAM) (LB), 2020 U.S. Dist. LEXIS 100141, at *30 (E.D.N.Y. June 8, 2020)(“The critical differences between activities of daily living and activities in a full time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons ..., and is not held to a minimum standard of performance, as she would be by an employer.”)(quoting Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012)).
D. Remand
A court reviewing the denial of benefits may, in its discretion, remand a claim for further proceedings, or solely for the calculation of benefits. 42 U.S.C. § 405(g) (sentence four) (a reviewing court may enter, upon the pleadings and the administrative record, “a judgment affirming, modifying, or reversing the decision of the Commissioner ... with or without remanding the cause for a rehearing”).
Where the record is complete and contains persuasive proof of disability, “no purpose would be served” by additional administrative proceedings and remand for calculation of benefits is warranted. Curry v. Apfel, 209 F.3d 117, 124 (2d Cir.2000).
Here, the record is complete and contains persuasive proof of disabling mental health impairments, as evidenced by multiple, detailed assessments from a treating, Board-Certified psychiatrist with an extended opportunity to observe and treat Plaintiff. In addition, while the consultative examiner assessed somewhat less severe limitation, the treating and examining psychiatrists both found significant limitation with respect to Plaintiff's ability to attend, concentrate, and maintain a regular work schedule. (T at 458, 459, 463, 700, 701, 705-707, 709).
The Commissioner does not articulate any purpose that would be served by further administrative proceedings and this Court finds none. Indeed, even if the ALJ was given (another) chance on a (second) remand to consider the record and properly apply the treating physician's rule, the record would still lack evidence sufficient to outweigh the multiple assessments rendered by a psychiatrist with an extended opportunity to observe and treat Plaintiff. See McClain v. Barnhart, 299 F.Supp.2d 309, 329 (S.D.N.Y. 2004) (“[C]ase law evidences reviewing courts' refusal to recycle deserving claimants through the SSA bureaucracy simply because the ALJ has failed to produce a legally adequate opinion.”).
Lastly, a remand for calculation of benefits is warranted given the lengthy delay Plaintiff has already experienced in waiting for a final determination. Plaintiff applied for benefits more than six (6) years ago. (T at 272-85). A remand for calculation of benefits is “particularly appropriate” in the face of such a delay. See Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000)(“Moreover, we believe this disposition to be particularly appropriate given that [the] application has been pending more than six years and that a remand for further evidentiary proceedings (and the possibility of further appeal) could result in substantial, additional delay.”); Marcano v. Comm'r of Soc. Sec., No. 20-CV-4230 (JPO)(RWL), 2021 U.S. Dist. LEXIS 221312, at *69 (S.D.N.Y. Nov. 16, 2021)(“Remand for calculation of benefits is also appropriate where the claimant's case is marked by substantial delay.”); Jeremy B. v. Comm'r of Soc. Sec., Civil Action No. 2:18-cv-159-jmc, 2019 U.S. Dist. LEXIS 122221, at *30 (D. Vt. July 23, 2019)(“Allowing the Commissioner to decide the issue again would create an unfair ‘heads we win; tails, let's play again' system of disability benefits adjudication.”) (quoting Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004)).
This Court recognizes that a remand for calculation of benefits is an exceptional remedy, but recommends it for the reasons outlined above, including the persuasive proof of disability, the Commissioner's failure to articulate (even in the alternative) a rationale for further proceedings, and the extended delay in adjudication of Plaintiff's claim (which already included one remand based on the Commissioner's failure to develop the record).
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 19) should be GRANTED; that the Commissioner's Motion for Judgment on the Pleadings (Docket No. 25) should be DENIED; and this case should be remanded for calculation of benefits under sentence four of section 405 (g) of the Social Security Act.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Under 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).