Opinion
1:23-cv-07144-JMF-GRJ
04-03-2024
MICHELLE C., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES, United States Magistrate Judge
In March of 2020, Plaintiff Michelle C. applied for Supplemental Security Income benefits under the Social Security Act. The Commissioner of Social Security denied the application. Plaintiff, represented by Pierre Pierre Law, P.C., Eddy Pierre Pierre, 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 for a Report and Recommendation on March 7, 2024. For the following reasons, it is recommended that this matter should be remanded for further proceedings.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on March 24, 2020, alleging disability beginning January 1, 2015. (T at 85, 211-17).Plaintiff's application was denied initially and on reconsideration. She requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on February 5, 2021, before ALJ Sharda Singh. (T at 55-80). Plaintiff appeared with an attorney and testified. (T at 61-75). The ALJ also received testimony from Edmond Calandra, a vocational expert. (T at 76-78).
Citations to “T” refer to the administrative record transcript at Docket No. 10.
A second hearing was held December 10, 2021, before Kiernan McCormack, a different ALJ. (T at 28-54). Plaintiff appeared with an attorney and testified. (T at 38-46). ALJ McCormack also received testimony from Rocco Meola, a vocational expert. (T at 46-51).
B. ALJ's Decision
On January 6, 2022, ALJ McCormack issued a decision denying the application for benefits. (T at 7-27). The ALJ found that Plaintiff had not engaged in substantial gainful activity since March 24, 2020, the date she applied for benefits. (T at 12).
The ALJ concluded that Plaintiff's bipolar disorder, anxiety disorder, posttraumatic stress disorder (PTSD), depressive disorder, cocaine use disorder, and learning disorder were severe impairments as defined under the Social Security Act. (T at 12).
However, the ALJ 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. (T at 13).
At step four of the sequential analysis the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, with the following non-exertional limitations: she is limited to “low stress” jobs, defined as jobs involving no more than simple, routine, and repetitive tasks, only simple work related decisions and no more than occasional workplace changes; and where there is only occasional interaction with supervisors, coworkers, and/or the public. (T at 15).
The ALJ found that Plaintiff had no past relevant work. (T at 19). Considering Plaintiff's age (38 on the application date), education (at least high school), work experience (no past relevant work), and RFC, the ALJ determined that there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 19-20). 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 March 24, 2020 (the application date) and January 6, 2022 (the date of the ALJ's decision). (T at 21).
On July 5, 2023, the Appeals Council denied Plaintiff's request for review, making ALJ McCormack's decision the Commissioner's final decision. (T at 1-6).
C. Procedural History
Plaintiff commenced this action, by and through her counsel, by filing a Complaint on August 11, 2023. (Docket No. 1). Plaintiff filed a brief challenging the denial of benefits on November 12, 2023. (Docket No. 11). The Commissioner interposed a brief in support of the ALJ's decision on December 12, 2023. (Docket No. 12). Plaintiff submitted a reply brief on December 18, 2023. (Docket No. 13). The matter was assigned to the undersigned for a Report and Recommendation on March 7, 2024.
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 two primary arguments in support of her challenge to the ALJ's decision. First, Plaintiff argues that the ALJ's consideration of the medical opinion evidence was flawed. Second, she asserts that the ALJ did not give adequate weight to her subjective complaints. This Court will address both arguments 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).
In January of 2017, the Social Security Administration promulgated new regulations regarding the consideration of medical opinion evidence. The revised regulations apply to claims filed on or after March 27, 2017. See 20 C.F.R. § 404.1520c. Because Plaintiff applied for benefits after that date, the new regulations apply here.
The ALJ no longer gives “specific evidentiary weight to medical opinions,” but rather considers all medical opinions and “evaluate[s] their persuasiveness” based on supportability, consistency, relationship with the claimant, specialization, and other factors. See 20 C.F.R. § 404.1520c (a), (b)(2). The ALJ is required to “articulate how [he or she] considered the medical opinions” and state “how persuasive” he or she finds each opinion, with a specific explanation provided as to the consistency and supportability factors. See 20 C.F.R. § 404.1520c (b)(2).
Consistency is “the extent to which an opinion or finding is consistent with evidence from other medical sources and non-medical sources.” Dany Z. v. Saul, 531 F.Supp.3d 871, 882 (D. Vt. 2021)(citing 20 C.F.R. § 416.920c(c)(2)). The “more consistent a medical opinion” is with “evidence from other medical sources and nonmedical sources,” the “more persuasive the medical opinion” will be. See 20 C.F.R. § 404.1520c(c)(2).
Supportability is “the extent to which an opinion or finding is supported by relevant objective medical evidence and the medical source's supporting explanations.” Dany Z, 531 F.Supp.3d at 881. “The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520 (c)(1), 416.920c(c)(1).
In the present case, Dr. Alison Murphy performed a consultative psychiatric evaluation in August of 2021. During the examination, Plaintiff displayed impaired attention and concentration, mild impairment in recent and remote memory skills, appropriate affect, poor insight, and poor judgment. (T at 1459).
In a narrative summary contained in her evaluation report, Dr. Murphy opined that Plaintiff could understand, remember, or apply simple directions with no limitation and understand, remember, or apply complex directions with mild impairment. (T at 1460). She assessed marked limitation in Plaintiff's ability to use reason and judgment to make work-related decisions; marked impairment in her capacity to interact with supervisors, co-workers, and the public; and marked limitation in her ability to sustain concentration and perform a task at a consistent pace. (T at 1460).
Dr. Murphy further opined that Plaintiff had marked impairment in her ability to sustain an ordinary routine and regular attendance and marked limitation with respect to regulating emotions, controlling behavior, and maintaining well-being. (T at 1460).
Dr. Murphy characterized Plaintiff's prognosis as “guarded” and stated that the results of her evaluation were consistent with psychiatric problems, substance abuse, and cognitive problems that may significantly interfere with Plaintiff's ability to function on a daily basis. (T at 1460-61).
Several days after the consultative examination, Dr. Murphy completed a “check-box” medical source statement of ability to do work-related activities (mental).
In this statement, Dr. Murphy found no impairment with respect to Plaintiff's ability to understand, remember, and carry out simple instructions or make judgments on simple work-related decisions, with moderate limitation as to understanding, remembering, and carrying out complex instructions or making judgments on complex work-related decisions. (T at 1462).
Dr. Murphy further opined that Plaintiff had moderate impairment in her capacity to interact with supervisors, co-workers, and the public and moderate limitation in her ability to respond appropriately to usual work situations and changes in a routine work setting. (T at 1463).
The ALJ recognized that the limitations contained in Dr. Murphy's narrative assessment were more restrictive than the limitations set forth on the “check-box” form evaluation. (T at 18). The ALJ found the less restrictive limitations contained on the “check-box” form persuasive and determined that the more restrictive narrative assessment was not persuasive. (T at 18).
For the following reasons, the Court concludes that the ALJ's consideration of Dr. Murphy's opinions should not be sustained.
First, the ALJ erred by failing to consider the consistency between Dr. Murphy's more restrictive narrative assessment and the opinion of Plaintiff's treating psychiatrist.
In her narrative assessment, Dr. Murphy assessed marked limitation in Plaintiff's ability to use reason and judgment to make work-related decision; marked impairment with respect to social interaction; and marked limitation in her ability to sustain concentration and perform a task at a consistent pace. (T at 1460). She further opined that Plaintiff had marked impairment in her ability to sustain an ordinary routine and regular attendance and marked limitation with respect to regulating emotions, controlling behavior, and maintaining well-being. (T at 1460).
The ALJ discounted the more restrictive aspects of Dr. Murphy's narrative assessment as “inconsistent with, and not supported by the rest or the psychiatric evidence of record ....” (T at 18).
Notably, however, in December of 2021, Dr. Quazi Al Tariq, Plaintiff's treating psychiatrist, completed a mental functional capacity assessment. In pertinent part, Dr. Tariq assessed moderate to marked impairment with respect to Plaintiff's ability to interact with others; marked to extreme limitation in Plaintiff's ability to complete a normal workday and workweek without interruptions; and marked impairment in Plaintiff's capacity to perform activities on schedule and maintain regular attendance. (T at 1590).
Although the ALJ discounted Dr. Murphy's narrative assessment as inconsistent with, and not supported by the record, the ALJ gave no consideration to the fact that the limitations described by Dr. Murphy in her narrative assessment were consistent with, and supported by, the opinion of Dr. Al Tariq, her treating psychiatrist. (T at 18).
This is a significant omission, as a treating provider's opportunity to observe a claimant over an extended period constitutes important support for his or her opinion and should be considered under the new medical opinion evidence rules. See, e.g., Raymond M. v. Comm'r of Soc. Sec., No. 5:19-CV-1313 (ATB), 2021 U.S. Dist. LEXIS 32884, at *28 (N.D.N.Y. Feb. 22, 2021); see also Cuevas v. Comm'r of Soc. Sec., No. 20-CV-0502 (AJN) (KHP), 2021 U.S. Dist. LEXIS 19212, at *25-26 (S.D.N.Y. Jan. 29, 2021)(“A survey of ... cases ... show[s] that while the treating physician's rule was modified, the essence of the rule remains the same, and the factors to be considered in weighing the various medical opinions in a given claimant's medical history are substantially similar.”)(collecting cases).
Likewise, the ALJ discounted Dr. Tariq's opinion as not consistent with, or supported by, the overall evidence of record (T at 18), without accounting for the consistency between the limitations assessed by Dr. Tariq and those identified by Dr. Murphy in her narrative report.
This was error. See Shawn H. v. Comm'r of Soc. Sec., No. 2:19-CV-113, 2020 WL 3969879, at *7 (D. Vt. July 14, 2020)(“[T]he ALJ should have considered that the opinions of Stephens and Dr. Lussier are consistent with each other.”); Malia Ann B. v. Comm'r of Soc. Sec., No. 5:21-CV-1362-AMN-CFH, 2023 WL 2838054, at *7 (N.D.N.Y. Feb. 23, 2023), report and recommendation adopted, No. 5:21-CV-1362-AMN-CFH, 2023 WL 2623865 (N.D.N.Y. Mar. 24, 2023)(collecting cases holding that “the ALJ is obligated to discuss the consistency of a medical opinion with the other evidence in the record, which necessarily includes other medical opinions”).
Second, the ALJ discounted Dr. Murphy's narrative evaluation because it was inconsistent with the limitations she identified on the checkbox form. (T at 18). Under the circumstances, however, the ALJ was obliged to re-contact Dr. Murphy for clarification of this inconsistency before relying on it to discount the more restrictive set of limitations.
Social Security proceedings are non-adversarial and the ALJ is obliged “to investigate the facts and develop the arguments both for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 111, 147 L.Ed.2d 80, 120 S.Ct. 2080 (2000) (citation omitted). This obligation applies even if the claimant is represented by counsel. See, e.g., Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)(citing Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)). The ALJ's duty to develop the record has been described as a “bedrock principle of Social Security law.” Batista v. Barnhart, 326 F.Supp.2d 345, 353 (E.D.N.Y.2004)(citing Brown v. Apfel, 174 F.3d 59 (2d Cir.1999)).
Courts in the Southern District of New York have consistently recognized that “an ALJ has a heightened duty to develop the record when a claimant asserts a mental impairment.” Gabrielsen v. Colvin, No. 12-CV-5694 KMK PED, 2015 WL 4597548, at *4-5 (S.D.N.Y. July 30, 2015)(collecting cases).
“This ‘heightened duty' derives from the fact that a claimant's mental illness may greatly impede an evaluator's assessment of a claimant's ability to function in the workplace, thus necessitating a more thorough review.” Piscope v. Colvin, 201 F.Supp.3d 456, 462-63 (S.D.N.Y. 2016).
The duty to develop the record, which includes the duty to re-contact physicians when needed to afford the claimant a full and fair hearing based on an adequately developed record, applies to claims governed by the new medical source opinion Regulations. See, e.g., Snoke v. Comm'r of Soc. Sec., No. 22-CV-3708 (AMD), 2024 WL 1072184, at *9 (E.D.N.Y. Mar. 12, 2024); Fintz v. Kijakazi, No. 22-CV-00337(KAM), 2023 WL 2974132, at *7 (E.D.N.Y. Apr. 15, 2023); Cheryl W. v. Kijakazi, No. 3:22-CV-1476 (VAB), 2024 WL 1012923, at *5 (D. Conn. Mar. 8, 2024); Daniela B. v. Kijakazi, 675 F.Supp.3d 305, 316 (E.D.N.Y. 2023); see also Ramos v. Comm'r of Soc. Sec., No. 20-CV-9436 (OTW), 2023 WL 3380660, at *2 (S.D.N.Y. May 11, 2023); Skartados v. Comm'r of Soc. Sec., No. 20-CV-3909 (PKC), 2022 WL 409701, at *4 (E.D.N.Y. Feb. 10, 2022).
In this case, given (a) the consistency between Dr. Murphy's more restrictive narrative assessment and the opinion of Plaintiff's treating psychiatrist (discussed above) and (b) the ALJ's overreliance on “stable” mental status reports (discussed below), the Court finds it was error for the ALJ to rely on Dr. Murphy's less restrictive “check-box” assessment without first re-contacting her to explain the inconsistency. See Briggs v. Saul, No. 19 CIV. 9776 (SLC), 2021 WL 796032, at *16 (S.D.N.Y. Feb. 26, 2021)(“There is no evidence or case support to justify ALJ McCormack's decision to sever portions of Dr. Spooner's opinion and then assign higher weight to the portion supporting the RFC, while discounting the portion of the opinion that assessed greater functional limitations.”); see also Schonfeld v. Comm'r of Soc. Sec., No. 21-CV-6053 (JW), 2023 WL 2625833, at *15 (S.D.N.Y. Mar. 24, 2023)(“The inconsistency of the ALJ's simultaneous reliance and rejection on Dr. Antiaris's findings concerning Plaintiff's limitations constitutes an error.”).
Third, the ALJ's decision to discount the opinion of Dr. Al Tariq and reject the more restrictive assessment from Dr. Murphy was not based on a reasonable reading of the record.
The ALJ's primary reason for finding these assessments unpersuasive (and for believing Plaintiff retained the RFC to meet the mental demands of basic work activity sufficient to sustain employment) was his conclusion that the mental status examinations during the relevant period were generally “normal” and described Plaintiff as “stable” on medications. (T at 17-18).
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. Comm'r of Soc. Sec. Admin., 729 Fed.Appx. 119, 121 (2d Cir. 2018)(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”).
Moreover, “a person can have a condition that is both ‘stable' and disabling at the same time.” Velasquez v. Kijakazi, No. 19CV9303 (DF), 2021 WL 4392986, at *28 (S.D.N.Y. Sept. 24, 2021)(citations omitted); see also Kohler v. Astrue, 546 F.3d 260, 268 (2d Cir. 2008)(finding that ALJ erred by, inter alia, “consistently interpret[ing] reports that [claimant's] condition has been ‘stable' to mean that [her] condition has been good, when the term could mean only that her condition has not changed, and she could be stable at a low functional level”).
In the present case, although the record contains evidence of periodic progress and relatively stable symptomology with medication and treatment, it likewise documents persistent, severe symptoms (including severe depression, panic attacks, mood problems, and suicidal ideation), and at least one trip to the emergency department. (T at 792-93, 799-811, 813-14, 1390-91, 1459, 1490, 1496, 1542).
Therefore, while the treatment notes show that Plaintiff's period of compliance with treatment and medication provided a measure of stability, the treatment record, when considered along with the restrictive assessments provided by the treating psychiatrist and consultative examiner, is not sufficient to sustain the conclusion that Plaintiff retained the ability to meet the mental demands of basic work activity on a sustained basis. See, e.g., Scatola v. Comm'r of Soc. Sec., No. 19-CV-3182 (PKC), 2020 WL 5752300, at *7 (E.D.N.Y. Sept. 26, 2020) (treatment notes indicating plaintiff's compliance with medication did not necessarily indicate improvement of anxiety, panic attacks, or depression) (citing Collins v. Berryhill, No. 16-CV-6673 (PKC), 2018 WL 259282, at *7 (E.D.N.Y. Jan. 2, 2018) (no medical basis for ALJ's conclusion that medications sufficiently managed plaintiff's anxiety such that plaintiff could perform work-related functions)).
For these reasons the Court recommends a remand for proper consideration of the evidence concerning Plaintiff's mental impairments, including reconsideration of Dr. Al Tariq's opinion, a determination as to whether it is necessary to recontact Dr. Murphy to clarify her inconsistent assessments, and reconsideration of the treatment record in proper context.
B. 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)).
If the ALJ discounts the claimant's credibility, the ALJ “must explain the decision to reject a claimant's testimony “with sufficient specificity to enable the [reviewing] Court to decide whether there are legitimate reasons for the ALJ's disbelief and whether [the ALJ's] decision is supported by substantial evidence.” Calzada v. Astrue, 753 F.Supp.2d 250, 280 (S.D.N.Y. 2010)(alterations in original, citations omitted).
In the present case, Plaintiff testified as follows: She is unable to work due to bipolar depression, PTSD, anxiety, and insomnia. (T at 63). Her bipolar disorder causes inability to focus, poor memory, confusion, and “very, very manic, very hyper” behavior. (T at 64-65). Her PTSD causes her to feel nervous and “claustrophobic almost,” and her anxiety symptoms include difficulty breathing, along with a racing heart and thoughts. (T at 65).
Plaintiff experiences frequent “manic episodes,” which she described as follows: “I'm chaos.I don't know how to control it, so I scream, and I yell, and I pace back and forth, and I shake, and I'm loud....Everybody isolates themselves away from me, people try to stay away from me, even my own mother.” (T at 71). After manic episodes, she “crash[es]” for two to three weeks, feeling depressed and “mentally . exhausted.” (T at 66-67).
During depressive periods, she has difficulty attending to self-care, including personal hygiene. (T at 67, 72). She avoids crowds and does not shop alone. (T at 40-41, 71-72). She has problems with memory, focus, and concentration. (T at 39-40). Her medications help “sometimes,” but also make her “very tired, spaced out.” (T at 41).
The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but concluded that Plaintiff's statements as to the intensity, persistence, and limiting effects of those symptoms were not entirely credible. (T at 16).
The Court finds that the ALJ's assessment of Plaintiff's subjective complaints should also be revisited on remand. The record, including the medical opinion evidence referenced above, tends to support Plaintiff's subjective reports of disabling mental impairments, including severe manic and depressive episodes. The ALJ's errors in considering the medical opinion evidence and interpreting the treatment record, as outlined above, likewise undermine the decision to discount Plaintiff's subjective complaints. A remand is necessary.
C. Remand
“Sentence four of Section 405 (g) provides district courts with the authority to affirm, reverse, or modify a decision of the Commissioner ‘with or without remanding the case for a rehearing.'” Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (quoting 42 U.S.C. § 405 (g)). Remand for further administrative proceedings is the appropriate remedy “[w]here there are gaps in the administrative record or the ALJ has applied an improper legal standard.” Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999); see also Rhone v. Colvin, No. 13-CV-5766 (CM)(RLE), 2014 U.S. Dist. LEXIS 180514, at *28 (S.D.N.Y. Nov. 6, 2014).
Given the deficiencies in the ALJ's analysis concerning the medical opinion evidence and Plaintiff's subjective complaints, it is recommended that this case should be remanded for further proceedings.
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff should be granted judgment on the pleadings and this case should be remanded for further proceedings under sentence four of section 405 (g) of the Social Security Act.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 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).