Opinion
21-CV-3211 (JPO) (VF)
09-29-2022
RICARDO GUTIERREZ, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
TO THE HONORABLE J. PAUL OETKEN, United States District Judge
REPORT AND RECOMMENDATION
VALERIE FIGUEREDO, UNITED STATES MAGISTRATE JUDGE
Plaintiff Ricardo Gutierrez brings this action seeking judicial review of a final determination by Defendant, the Acting Commissioner (“Commissioner”) of the Social Security Administration (“SSA”),denying Plaintiff's application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (the “Act”) based on a finding that he is not disabled for purposes of entitlement to SSI. Before this Court is the Commissioner's motion and Plaintiff's cross-motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, I respectfully recommend that the Commissioner's motion be DENIED, Plaintiff's cross-motion be GRANTED, and that the case be REMANDED for further administrative proceedings.
On July 9, 2021, Kilolo Kijakazi became Acting Commissioner of the SSA, and is therefore substituted as named defendant. See Fed.R.Civ.P. 25(d) (permitting automatic substitution of a party who is a public official sued in his official capacity when the public official “ceases to hold office” while a suit is pending).
BACKGROUND
A. Procedural History
In January 2018, Plaintiff filed an application for SSI. SSA Administrative Record (“R.”) at 13, 71-73, 204-12 (ECF No. 12). When Plaintiff applied for SSI benefits in 2018, he attributed his disability to bipolar disorder, post-traumatic stress disorder (“PTSD”), learning disorder, intermittent explosive disorder, and scoliosis. Id. at 72-73. At his hearing before the administrative law judge, Plaintiff testified that he also suffers from depression, anxiety, asthma, and a speech disorder. Id. at 39-42, 48. Plaintiff alleged that these mental and physical impairments prevented him from working since June 6, 2006, the onset date of his disability. Id. at 13, 204.
Plaintiff's claim for SSI benefits was denied on April 2, 2018, and on June 6, 2018, Plaintiff filed a written request for a hearing before an administrative law judge. Id. at 13, 87-95. On July 12, 2019, Plaintiff appeared before Administrative Law Judge Melissa Warner. Id. at 59-70. At that time, ALJ Warner requested that Plaintiff provide additional, more recent, medical records to supplement his application; ALJ Warner had Plaintiff sign an authorization form enabling her to request and obtain additional medical records; and ALJ Warner informed Plaintiff that he would need to undergo an additional speech examination. See id. The hearing was adjourned to provide Plaintiff time to seek legal representation. See id.
On October 9, 2019, Plaintiff appeared for another hearing before Administrative Law Judge Barbara Dunn (hereinafter, the “ALJ”), this time accompanied by counsel. See id. at 13, 3358. On July 9, 2020, the ALJ issued her written decision, denying Plaintiff's claim and finding that Plaintiff has not been under a disability within the meaning of the Act since January 2, 2018 (the date the application was filed). Id. at 10-32. Plaintiff requested a review by the SSA Appeals Council on August 21, 2020, which was denied on February 5, 2021 (and received by Plaintiff on February 9, 2021). Id. at 1-8, 200-203, 303-306; SSI Appl. at 2 (ECF No. 2). That denial made the July 9, 2020 decision of the ALJ the final action of the Commissioner. See Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (per curiam) (“If the Appeals Council denies review of a case, the ALJ's decision, and not the Appeals Council's, is the final agency decision.”) (citation omitted).
On April 12, 2021, after exhausting his administrative remedies, Plaintiff commenced the instant action seeking judicial review of the ALJ's decision, requesting that this Court modify or reverse the decision and grant Plaintiff “maximum monthly [SSI] benefits as allowable under the [Act].” See SSI Appl. at 2. On August 29, 2021, the Commissioner filed the Administrative Record, which constituted her answer. ECF No. 12. Thereafter, on December 17, 2021, the Commissioner moved for judgment on the pleadings and submitted a memorandum of law in support of her motion, requesting that this Court affirm the ALJ's decision. ECF Nos. 17-18. On April 8, 2022, Plaintiff submitted his cross-motion for judgment on the pleadings. ECF Nos. 24-25. Both parties filed reply briefs in support of their respective motions; the motions were fully briefed as of May 3, 2022. ECF Nos. 26-27.
B. The Hearing Before the ALJ
The hearing was held before ALJ Barbara Dunn on October 9, 2019, in New York City. R. at 34. Plaintiff was accompanied by his counsel, Marissa Solva, and his case manager, Tala Abu Rahma; Vocational Expert (“VE”) Chelsea Parker was also present at the hearing. Id. at 34, 36. At the time of the hearing, Plaintiff was 31 years old and was living alone in “supported housing” for “individuals with serious mental illness,” and which had “case worker[s]” and other “staff” around “all the time.” Id. at 37-38, 49-50, 204. Plaintiff's counsel informed the ALJ that prior to the hearing, Plaintiff had a “psychiatric intake at NYU”; counsel provided records of that appointment to the ALJ, who received and entered the records as an exhibit. Id. at 38-39.
The questioning of Plaintiff was conducted by both the ALJ and Plaintiff's counsel. Plaintiff testified that he graduated from high school and completed one semester at a college career institute, “TCI, College of Technology,” in 2009. Id. at 37. Plaintiff stated that his grades in high school were “okay” but that he performed “poorly” in college. Id. at 51. Plaintiff testified that when he was in school, he was in a special education class due to “learning disabilities and behavior problems,” and that he had problems with other students and teachers, including being “teased a lot” and getting into physical fights. Id. at 40-41.
Plaintiff testified that he sees a case worker once per week. Id. at 40. Plaintiff further testified that he has asthma, but that he does not get asthma attacks or have an inhaler. Id. at 39. Plaintiff explained that his asthma causes him to experience “daily” shortness of breath. Id. at 3940. According to Plaintiff, he has been diagnosed with depression, bipolar disorder, and PTSD. Id. at 41. Plaintiff testified that, about once a month, his depression causes him to stay “in bed all day” and not “do anything” Id. Plaintiff stated that his bipolar disorder causes him to become “manic” and to “get angry very easily” and “lash out” at “anybody around.” Id. at 41-42. Plaintiff explained that his PTSD is “tied to [his] bipolar disorder and [his] anxiety,” and that his anxiety and bipolar disorder are “fuel[ed] by “trigger[s].” Id. at 42. Plaintiff noted that he is “never” able to finish what he starts, has trouble with concentration, and “sometimes” has difficulty with memory. Id. at 43.
With regards to his work history, Plaintiff testified that he has looked for work, but never found a job, except for an “internship” at a warehouse that lasted for about a year and which he obtained “through foster care.” Id. at 44-45. That job was “more or less” full time, but Plaintiff stopped working when he “threw [his] back out,” which still causes him pain. Id. at 44. Plaintiff testified that his back pain, which is caused by scoliosis, causes his back to “lock up sometimes,” and that he has back pain when he walks up-stairs or bends over. Id. at 47. Plaintiff indicated that he could walk without stopping for 30 minutes and needs to rest for 10 minutes before he can begin walking again. Id. at 47-48. Plaintiff also testified that he could stand for 30 minutes before needing to sit down and can sit for 30 to 45 minutes before needing to stand. Id. at 48.
According to Plaintiff, about once a month he experiences issues with anger, which cause him to “lash out” and become both “physically and verbally” violent. Id. at 45. When asked by the ALJ if he had ever been arrested, Plaintiff mentioned two arrests for turnstile jumping, and testified that he spent five days in Rikers. Id. at 45-46. Plaintiff testified that he has never been arrested for a violent offense. Id. at 46. Plaintiff stated that most of the fights he has been involved in occurred while he was “in foster care” and, if he is “feeling bad,” he “stay[s] home” and does “not go outside because [he] will fight.” Id. at 47.
When asked about his speech disorder, Plaintiff testified that it causes him to “eat” or “drop” his words. Id. at 48. Plaintiff acknowledged that he has attended speech therapy, which was “somewhat” helpful. Id. Plaintiff testified that he does not often leave his home, and spends his time watching TV, playing video games, and reading science fiction novels. Id. at 52. Plaintiff admitted that he has no trouble doing household chores. Id. at 48. Plaintiff testified that he does “all right” meeting new people and has “about five” friends. Id. at 50. Plaintiff further testified that he has trouble taking public transportation, but “only during rush hour,” because the crowds make him anxious. Id. When asked why he feels that he cannot work, Plaintiff responded that he is concerned his anxiety and anger will be triggered and lead him to get arrested. Id. at 50-51. When asked what types of things trigger his anger, Plaintiff responded that his anger is triggered “just generally” or when his “work is not successful.” Id. at 51. When asked by the ALJ if he could get a job in a warehouse where he did not “have to deal with” or “be around” many people, Plaintiff responded that he could not because of his back pain. Id. at 52.
The ALJ found that Plaintiff has no past relevant work, and asked the VE various hypotheticals. Id. at 53. First, the ALJ asked the VE to assume that:
Claimant could lift, carry, push, and pull 20 pounds occasionally, 10 frequently. Stand and/or walk six hours; sit six hours. No more than occasional ladders, ropes, scaffolds, or hazards such as dangerous machinery or heights. No more than
occasional ramps, stairs, balance, stoop, kneel, crouch crawl. No more than occasional exposure to dust, fumes, gases, poor ventilation or temperature extremes. Limited to unskilled work of reasoning level one or two. No public contact.
Occasional coworker contact. No telephone work.Id. The VE testified that such a person could find “light” and “unskilled” work in the national or regional economy, including as a Bagger (Dictionary of Occupational Titles (“DOT”) 920.687019), Racker (DOT 524.687-018), and Drying Room Attendant (DOT 581.687-014). Id. at 53-54. The ALJ then asked the VE about the same hypothetical individual but who is “off task 15 percent of the time.” Id. at 54. The VE testified that employers will “tolerate a maximum off task rate of no greater than 10 percent,” so 15 percent “would be excessive” and preclude the individual from engaging in such work. Id. The ALJ then asked the VE about the same hypothetical individual but limited the jobs to those with “no public and no coworker contact.” Id. The VE testified that the positions she previously identified (Drying Room Attendant, Bagger, and Racker) do not have much contact with coworkers, but that there is always some contact with coworkers and supervisors. Id. at 54-55. The ALJ asked the VE about the same hypothetical individual but limited the hypothetical to jobs with “no public” and “occasional” coworker and supervisor contact, and the VE testified that the same positions (Drying Room Attendant, Bagger, and Racker) would still be available to that hypothetical individual. Id. at 55.
Plaintiff's counsel asked the VE if there would be any work for an individual who was absent from work twice a month. Id. The VE testified that there would not be because employers “tolerate a maximum absenteeism of one day per month”; two days per month would “be excessive and would make that work preclusive.” Id. Therefore, the positions noted by the VE would be available for an individual that is absent one day per month or less. Id. at 55-56. Counsel also asked the VE whether an individual who “consistently” came to work “malodorous or disheveled” could maintain employment. Id. at 55. The VE testified that if an individual were “not focusing enough to complete tasks” and was “off task more than 10 percent due to being disheveled” or otherwise, it would preclude such work. Id. at 56. Counsel further asked whether there would be any available work if the individual required constant supervision, rather than occasional interaction with supervisors. Id. The VE testified in the negative, stating that such supervision would amount to “accommodated work” and “would make that work preclusive.” Id. The VE stated that her testimony was consistent with the DOT, but noted that certain considerations, such as an individual's absenteeism and off-task rate, are not covered by DOT and instead are based on her “experience in the vocational field” and “interactions with the public, supervisors, and coworkers.” Id. at 56-57.
C. Medical Evidence
The parties' memoranda in support of their motions for judgment on the pleadings provide summaries of the medical evidence contained in the administrative record. See Def.'s Br. at 4-7 (ECF No. 18); Pl.'s Br. at 8-12 (ECF No. 25). Having examined the record, I find that the parties have accurately stated its contents. Although the parties focus on different aspects of the record at times, there are no inconsistencies in the parties' recounting of the medical evidence. Moreover, no party has objected to the other's summary of the medical evidence. I thus adopt the parties' summaries as complete for the purposes of the issues raised in this action. See Collado v. Kijakazi, 20-CV-11112 (JLC), 2022 WL 1960612, at *2 (S.D.N.Y. June 6, 2022) (adopting parties' summaries of medical evidence where parties did not dispute recitation of relevant facts); Scully v. Berryhill, 282 F.Supp.3d 628, 631 (S.D.N.Y. 2017) (adopting parties' medical evidence summaries where they were “substantially consistent with each other” and neither party objected to the opposing party's summary). The issues in this case center around the manner in which the ALJ applied the law to the facts, as well as the extent to which her decision was supported by substantial evidence. I discuss the medical evidence in the record below to the extent necessary to address those issues.
D. Medical and Non-Medical Opinion Evidence
1. Robert T. Miller (Psychiatrist)
In February 2008, Dr. Miller conducted a psychiatric evaluation of Plaintiff, diagnosing him with complex PTSD, intermittent explosive disorder, oppositional/defiant disorder, parentchild relational problem, sibling relational problem (noting “sexual molestation of siblings”), and an incipient narcissistic personality disorder. R. at 635-39, 715-19.
2. Evan Christodoulou (Psychiatrist)
In May 2009, Dr. Christodoulou conducted a psychiatric evaluation of Plaintiff, diagnosing him with intermittent explosive disorder. Id. at 701-06. The mental status examination notes that Plaintiff's speech was “slurred” and “difficult to understand.” Id. at 705.
3. Sarah Clarke (Licensed Social Worker)
In December 2009, a psychological assessment conducted by Ms. Clarke noted that Plaintiff resided at the Covenant House Crisis Shelter until November 2009, when he was discharged “due to becoming a sanctuary threat” after breaking a window and door, threatening other residents, and attempting to cut his wrists using a plastic knife. Id. at 707. The report notes an inpatient hospitalization at St. James Hospital for one week, but does not indicate when this occurred. Id. at 707.
4. Julia Najara, M.D. (Psychiatrist)
In November 2010, Plaintiff was evaluated by Dr. Najara, a psychiatrist at the University Settlement Consultation Center (“University Settlement”). Id. at 690-95. Dr. Najara diagnosed Plaintiff with an unspecified mood disorder and learning disorder. Id. at 694. In a September 2012 psychiatric evaluation, Dr. Najara diagnosed Plaintiff with bipolar disorder and PTSD, as well as intermittent explosive disorder. Id. at 685-89. The report notes a “history of manic episodes with psychotic features.” Id. at 688.
5. Dr. Fazil Hussain (FEDCAP assessment)
In August 2014, Plaintiff underwent the first of three assessments by various physicians at FEDCAP, an organization that provides vocational rehabilitation support. Id. at 322-73. Dr. Hussain diagnosed Plaintiff with bipolar I disorder, PTSD, intermittent explosive disorder, insomnia due to a mental disorder, and an unspecified learning disorder-all of which he characterized as unstable and untreated-and found Plaintiff “potentially” unable to work. Id. at 367-69, 373. Dr. Hussain also found that Plaintiff had a low stress tolerance, low capacity for sustained attention and concentration, difficulty getting along with others and tolerating supervision, and the need to work at a slow pace with limited productivity. Id. at 363-65.
6. Dr. Feng Liu (Treating Psychiatrist)
Dr. Liu is a psychiatrist with University Settlement, who treated Plaintiff at several points between 2014-2018. In December 2014, Dr. Liu completed a psychiatric evaluation and “Wellness Plan Report.” R. at 315-19, 1065-68. Dr. Liu listed “current diagnoses” of bipolar II disorder, as well as insomnia, PTSD, and an unspecified learning disorder, and noted that Plaintiff had a history of intermittent explosive disorder. Id. at 315. Dr. Liu stated that Plaintiff had a long history of behavioral difficulties, irritability, labile mood, and aggression, with episodes of major depression. Id. Plaintiff reported that typical depressive episodes could last from one to four weeks and involved depressed mood, suicidal ideation, anhedonia, increased sleep, locking his door and staying in his room, and not wanting to talk to anyone or go out. Id. at 315-17. Plaintiff's typical manic episodes involved elevated mood, grandiosity, racing thoughts, pressured speech, increased energy, and decreased need for sleep. Id. Dr. Liu opined that Plaintiff was temporarily unemployable at the time and that his bipolar disorder would “relapse under stress,” but that he could start “some low stress vocational training to prepare for the future” if he could maintain stability. Id. at 316. Mental-status examinations showed that Plaintiff had fast and pressured speech, a “significant dysarthria” speech deficiency, tangential and circumstantial thought process with flight of ideas, expansive mood, below average intelligence, and fair judgment and insight. Id. at 318.
In June 2017, Dr. Liu completed a second Wellness Plan Report for Plaintiff, which included the diagnoses of bipolar II disorder and an unspecified learning disorder. Id. at 1033. The report stated that Plaintiff's hypomanic episodes involved periods of no sleep lasting 2-4 days, with irritability, grandiosity, and paranoia. Id. The plan also provided that Plaintiff had poor impulse control, was unable to have normal social interactions, and tended to self-isolate to avoid lashing out at other people. Id. The report opined that Plaintiff was still temporarily unemployable, but that if Plaintiff were willing to maintain consistent psychiatric treatment, he might be able to work in a less stressful or demanding environment. Id. at 1034.
Dr. Liu completed a third Wellness Plan Report in October 2017, which described Plaintiff as unable to work for at least 12 months. Id. at 443-44, 1030-31. Dr. Liu stated that Plaintiff “refuse[d] to be on medication [and] only sporadically showed up for appointments.” Id. at 443, 1030. Plaintiff's mental-status examinations showed unkempt appearance, poor hygiene, severe disarticulation that made him difficult to understand at times, constricted affect, concrete thought process, and poor interpersonal and self-care function. Id. Dr. Liu opined that Plaintiff was unable to work and that “without regular [and] consistent treatment . . . [he would] still exhibit symptoms [and] significant functional impairment,” and that his “poor self-care skill[s], self-regulation [and] poor judgment makes him difficult to engage or complete any job requirement.” Id. at 444, 1031.
Dr. Liu conducted a psychiatric evaluation of Plaintiff on April 11, 2018 “for application of SSD.” Id. at 1058. The report described Plaintiff as suffering from alternating “major depressive” or “manic” episodes. Id. The report noted that Plaintiff had been taking Abilify since February 2018, which had reduced anger episodes and improved sleep, though Plaintiff continued to have mood swings and tended to be socially isolated. Id. The report notes that Plaintiff has severe dysarthria and includes a diagnosis of bipolar II disorder. Id. at 1061. Plaintiff had stopped attending therapy in June 2018, and was discharged in September 2018 for non-compliance. Id. at 1051-52. Importantly, Dr. Liu never provided a functional assessment for Plaintiff. See Pl's. Br. at 28; Def's Br. at 16.
7. Lavonna Branker, M.D. (FEDCAP Assessment)
Plaintiff underwent a second FEDCAP assessment in March 2017, conducted by Dr. Branker, which found that Plaintiff, in addition to various physical impairments, suffered from bipolar disorder, memory loss, learning difficulties, and an unspecified personality disorder. R. at 420-22. Dr. Branker found him temporarily unable to work and indicated that Plaintiff had limits in concentration, attention, memory, pace, and productivity. Id. at 414-16, 425. Plaintiff also had limited adaptability, limits on interpersonal relations, and a speech impediment. Id. Dr. Branker opined that Plaintiff was “sig[nificantly] impaired by the psych issues [with] a sig[nificantly] reduced tolerance for stress.” Id. at 427.
8. Dr. John Miller (Psychiatric Consultative Examination)
Dr. Miller conducted a state agency psychiatric consultative examination of Plaintiff in March 2018. R. at 572-76. Plaintiff reported that he had difficulty falling asleep, recurrent depressive episodes that involved dysphoric moods, fatigue, loss of energy, and social withdrawal, anxiety symptoms of fearfulness of dying, and difficulty remembering the date. Id. at 572-73. Plaintiff reported that he dressed, bathed, and groomed himself; could cook, prepare food, clean, do laundry, shop, and take public transportation; and got along “fairly well” with his family and had “a lot” of friends. Id. at 574. A mental-status examination showed Plaintiff was well groomed, had fair social skills, normal posture and motor behavior, appropriate eye contact, clear quality of voice, adequate expressive language, goal directed thought process, intact memory, fair insight, and good judgment, but had an irritable and defensive demeanor, tired and dysthymic mood, dysphoric affect, mildly impaired attention and concentration, and below average intelligence. Id. at 573-74. Plaintiff had a severe articulation problem- Dr. Miller occasionally needed to ask him to repeat himself because his speech was difficult to understand. Id. at 573.
Dr. Miller opined that Plaintiff's psychiatric problems did not “appear to be significant enough to interfere with [Plaintiff's] ability to function on a daily basis.” Id. at 575. Dr. Miller opined that Plaintiff had no limitations in his ability to: apply simple directions; use reason and judgment to make work-related decisions; sustain an ordinary routine and regular attendance at work; maintain personal hygiene and appropriate attire; and be aware of normal hazards and take appropriate precautions. Id. at 575. Plaintiff was moderately limited in his ability to: understand, remember, or apply complex directions or instructions; sustain concentration and perform a task at a consistent pace; and regulate emotions, control behavior, and maintain well-being. Id. at 574. Plaintiff was moderately-to-markedly limited in his ability to interact adequately with supervisors, coworkers, and the public because of his speech impairment. Id. at 574-75. Plaintiff reported to Dr. Miller that he was being treated for PTSD and bipolar disorder, but Dr. Miller's only psychiatric diagnosis of Plaintiff was persistent depressive disorder (a milder form of depression than major depressive disorder). Id. at 572.
9. Dr. Ram Ravi (Orthopedic Consultative Examination and Ear Examination)
Dr. Ravi conducted an orthopedic consultative examination on Plaintiff in March 2018. Plaintiff complained of back pain and a right jaw fracture. R. at 568. An examination showed Plaintiff had moderately antalgic gait, could squat 25%, had normal stance, needed no help changing for the examination or getting on and off the exam table, and was able to rise from a chair without difficulty. Id. at 569. Plaintiff had scoliosis and limited range of motion in his cervical spine, lumbar spine, shoulders, knees, and ankles, but 5/5 grip strength, intact hand and finger dexterity, 5/5 strength in his extremities, no sensory abnormality, equal reflexes, no spasms, no spinal or paraspinal tenderness, and no trigger points. Id. Dr. Ravi opined that Plaintiff had no limitations in sitting or standing and moderate limitations in walking, pushing, pulling, lifting, and carrying. Id. at 570.
In August 2019, Dr. Ravi performed audiogram testing that showed normal hearing bilaterally. Id. at 605. Plaintiff reported that he has no hearing loss and was able to communicate over the telephone. Id. at 604.
10. Dr. S. Gandhi (Reviewing Physician)
Dr. Ghandi conducted a review of Plaintiff's available records in March 2018. Dr. Ghandi opined that Plaintiff could lift and carry 10 pounds frequently and 20 pounds occasionally, sit for 6 hours and stand and/or walk for 6 hours, and had no postural, manipulative, visual, communicative, or environmental limitations. Id. at 79-80.
11. Dr. D. Brown (Non-Examining Reviewing Psychologist)
Dr. Brown, a state psychologist, conducted a review of Plaintiff's available records in March 2018. Dr. Brown did not make any diagnoses, but identified Plaintiff's mental impairments as falling within the category of “Depressive, Bipolar and Related Disorders.” Id. at 77. Dr. Brown opined that Plaintiff had moderate limitations in a number of work-related areas but concluded that he was “capable of simple work in a low interpersonal contact environment.” Id. at 77, 81-83.
12. Lucy Siderman (Case Manager)
Plaintiff's case manager, Lucy Siderman, completed a third party “Function Report” in April 2018. R. at 250-57. Ms. Siderman stated that Plaintiff had problems remembering, focusing, concentrating, completing tasks, standing, bending, walking, lifting, and carrying. Id. at 250-51, 257. Plaintiff reported he was able to prepare meals, do household chores with frequent breaks due to tiredness, use public transportation, go out alone, and shop in stores about once per month. Id. at 252-53. Plaintiff stated that he did not socialize, needed reminders to attend appointments, and was too tired, depressed, and in pain to work or go out. Id. at 25455. Ms. Siderman observed that Plaintiff was disheveled with uncombed hair, appeared irritable and impatient, had problems recollecting dates, had problems sitting and constantly changed positions, and had a speech impairment that made it difficult for her to understand him. Id. at 256. She opined that “[b]ased on [Plaintiff's] multiple physical and emotional limitations[,] he won't be able to perform his past duties as a Warehouse Assistant [and cannot] find gainful employment at [the] present time.” Id. at 257.
13. Dr. Ralph Heiss (FEDCAP Assessment)
Plaintiff underwent his third FEDCAP assessment in July 2018, conducted by Dr. Ralph Heiss. R. at 990-1023. Plaintiff reported a history of asthma as a child but indicated that he had no symptoms as an adult. Id. at 1006. Plaintiff also reported that he had major depressive disorder, PTSD, bipolar disorder, and a history of suicidal ideation. Id. at 1002. The report indicated that Plaintiff demonstrated “good” physical appearance, grooming, hygiene, and was responsive to questions during the interview. Id. at 990. A musculoskeletal examination showed joint line pain in his knees. Id. at 1015. Dr. Heiss opined that Plaintiff could lift, push, and pull up to 15 pounds, 1 to 10 times per hour; could stand up to 20 minutes continuously and walk up to 20 minutes continuously; should avoid kneeling; could squat twice per hour and engage in repetitive bending, crouching, and stooping twice per hour; and had no limitations on sitting. Id. at 1016-17.
Dr. Heiss assessed that Plaintiff had difficulty communicating due to a speech impediment; had cognitive difficulties and social anxiety; and had problems tolerating stress, adapting to change, and regulating his emotions and mood. Id. at 1017-18. Dr. Heiss recommended work that limited or eliminated lifting, pushing, pulling, carrying, stooping, bending, and reaching, involved a low stress environment with job coaching, and was performed in an uncrowded or an open space. Id. at 1019. Dr. Heiss concluded that Plaintiff was “[u]nable to [w]ork.” Id. at 1023. Relying upon earlier assessments of Plaintiff by others, Dr. Heiss diagnosed Plaintiff with unspecified, episodic mood disorder and PTSD. Id. at 1022.
14. Dr. Silvia Aguiar (Internal Medicine Consultative Examination)
In August 2019, Dr. Aguiar examined Plaintiff, who complained of lower back pain, asthma, scoliosis, PTSD, bipolar disorder, and depression. R. at 578. Dr. Aguiar opined that Plaintiff had moderate limitations for bending, heavy lifting and carrying, prolonged standing, prolonged walking, and prolonged sitting, and that he should avoid smoke, dust, and respiratory irritants due to his history of asthma. Id. at 581. In an accompanying questionnaire, Dr. Aguiar indicated that Plaintiff could lift up to 20 pounds frequently and 50 pounds occasionally, could carry up to 10 pounds frequently and 20 pounds occasionally, could sit for 3 hours at a time and 5 to 6 hours total in an 8-hour workday, could stand and walk for 20 minutes at a time and 1 hour total, could never balance or climb ladders or scaffolds, could frequently climb stairs and ramps, stoop, kneel, crouch, and crawl, and could frequently be exposed to unprotected heights, moving mechanical parts, operating a motor vehicle, dust and pulmonary irritants, extreme cold and heat, and vibrations. Id. at 582-86.
15. Mirta Rodriguez (Speech and Language Consultative Evaluation)
In August 2019, Plaintiff was evaluated by Mirta Rodriguez, a speech and language pathologist. R. at 589-92. Plaintiff showed average receptive, expressive, and general vocabulary on a Comprehensive Vocabulary Test and displayed “adequate” skills in pragmatics (which measures the way a person “communicates and interacts with the people around them”). Id. at 591. An informal assessment of Plaintiff's articulation showed that he had “reduced speech intelligibility primarily affected by his rate of speech, placing him at 70% intelligibility to familiar and unfamiliar listeners.” Id. Ms. Rodriguez opined that Plaintiff “communicated effectively using adequate fluency, but with reduced vocal quality impacting his overall articulation,” and that formal language testing indicated that he had “average receptive and expressive language skills.” Id. Ms. Rodriguez diagnosed him with moderate speech delay and recommended speech services. Id. at 592.
16. Judy Popple, Ph.D. (Psychiatric Consultative Examination)
In August 2019, state examiner Dr. Popple evaluated Plaintiff. R at 594-602. Plaintiff reported that he had estranged family relationships and lacked motivation at times to engage in activities of daily living, but that he was able to dress, bathe, and groom himself, and had a social group. R. at 597. A mental-status examination showed Plaintiff was somewhat disheveled, poorly groomed, had a malodorous scent, had moderate articulation difficulty and was difficult to understand at times, had slightly agitated affect, mildly impaired memory, and fair insight and judgment, but he had generally intact attention and concentration, average cognitive functioning, normal motor behavior and posture, appropriate eye contact, coherent and goal directed thought processes, and “okay” mood. Id. at 596-97. Dr. Popple opined that Plaintiff's psychiatric problems did not appear to be significant enough to interfere with his ability to function on a daily basis. Id. at 598. Dr. Popple further opined that Plaintiff had mild limitations in his ability to use reason and judgment to make work-related decisions, to maintain personal hygiene and appropriate attire, and to respond appropriately to changes in a routine work setting; mild-to-moderate limitations in his ability to regulate emotions, control behavior, and maintain wellbeing; and up-to-moderate limitations in his ability to interact adequately with supervisors, coworkers, and the public. Id. at 597-601.
Plaintiff admitted to two prior hospitalizations, mentioned that he had been sexually abused by a family member as a young child, denied any arrest record other than one instance of turnstile jumping, and admitted to irritability, anger, and aggressive tendencies in the recent past. Id. at 595-96. Plaintiff claimed to have a social group that he enjoyed, and described only depressive symptoms, denying that he experienced any manic symptoms. Id. at 597. Dr. Popple's only diagnosis was persistent depressive disorder. Id. at 598. Dr. Popple characterized Plaintiff's functional limitations as “up to moderate” or “mild to moderate.” Id. at 597-98.
17. Angela Yeung (Psychiatric Nurse Practitioner)
In October 2019, following a request by Plaintiff's attorney, nurse practitioner Angela Yeung conducted a psychiatric evaluation of Plaintiff. R. at 1648-55. Plaintiff reported to Ms. Yeung that he had been sexually molested by his step-father as a child, and that memories of the abuse were “highly triggering.” Id. at 1649, 1651. Ms. Yeung noted that when pushed to answer questions about the sexual abuse, Plaintiff became irritable and defensive, and he reported that such recollection caused him to “lash out.” Id. Plaintiff reported mood symptoms of persistent negative beliefs, persistent distorted blame, persistent negative trauma-related emotions, markedly diminished interest in significant activities, persistent inability to experience positive emotions, irritability, anger outbursts, reckless behavior, hypervigilance, insomnia, alienation, and detachment. Id. at 1649. Plaintiff also reported symptoms of bipolar disorder, including decreased sleep, irritability, and grandiosity; and depressive symptoms of poor sleep, poor appetite, anhedonia, history of suicide attempts, isolative behaviors, and psychomotor agitation. Id. A mental-status examination showed Plaintiff had clear and loud speech, intact memory, fair judgment, intact associations, and no perceptual disorder, but had a disheveled appearance, irritable and anxious mood, constricted affect, vague thought process, grandiose and negative cognitions and thought content, concrete abstract reasoning, fair to poor impulse control and insight, and distractible attention and concentration. Id. at 1652-53. Ms. Yeung diagnosed Plaintiff with PTSD and bipolar disorder (designating PTSD as his primary condition). Id. at 1653.
18. Tala Abu Rahma (Resident Life Coach)
In October 2019, Ms. Abu Rahma provided a letter stating that Plaintiff struggled with making and keeping appointments, getting to places without being escorted or having clear and detailed instructions, communicating with people, filling out forms at appointments, and remembering dates and times. R. at 296. Ms. Abu Rahma stated that during their meeting, Plaintiff changed the subject constantly and had a hard time focusing on specific topics. Id. Finally, Ms. Abu Rahma reported that Plaintiff did not have a clear plan to move out of supported housing and did not seem ready or able to live independently “for the time being.” Id. at 297.
DISCUSSION
A. Legal Standards
1. Judgment on the Pleadings
A Rule 12(c) motion for judgment on the pleadings is evaluated under the same standard as a Rule 12(b)(6) motion to dismiss. Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). Thus, “[t]o survive a Rule 12(c) motion, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (internal quotation marks and citation omitted).
2. Judicial Review of the Commissioner's Decision
An individual may obtain judicial review of a final decision of the Commissioner “in the district court of the United States for the judicial district in which the plaintiff resides.” 42 U.S.C. § 405(g). A court reviewing a final decision by the Commissioner “is limited to determining whether the [Commissioner's] conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam) (citations and internal quotation marks omitted); accord Greek v. Colvin, 802 F.3d 370, 374-75 (2d Cir. 2015) (per curiam); see generally 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive”).
Substantial evidence is “more than a mere scintilla.” Richardson v. Perales, 402 U.S. 389, 407 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)); accord Greek, 802 F.3d at 374-75; Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008). “It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (citation and internal quotation marks omitted). “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations . . . whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high.” Id. In weighing whether substantial evidence exists to support the Commissioner's decision, “the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Selian, 708 F.3d at 417 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)).
The substantial evidence standard is a “very deferential standard of review.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012). The Court “must be careful not to substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result upon a de novo review.” DeJesus v. Astrue, 762 F.Supp.2d 673, 683 (S.D.N.Y. 2011) (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)) (internal quotation marks and alterations omitted). “[O]nce an ALJ finds facts, [a court] can reject those facts ‘only if a reasonable factfinder would have to conclude otherwise.'” Brault, 683 F.3d at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)) (emphasis omitted). “Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam) (citation and internal quotation marks omitted); see also Johnson v. Astrue, 563 F.Supp.2d 444, 454 (S.D.N.Y. 2008).
3. Commissioner's Determination of Disability
The Social Security Act defines the term “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see id. § 1382c(a)(3)(A). Physical or mental impairments must be “of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). In assessing a claimant's impairments and determining whether they meet the statutory definition of disability, the Commissioner “must make a thorough inquiry into the claimant's condition and must be mindful that ‘the Social Security Act is a remedial statute, to be broadly construed and liberally applied.'” Mongeur, 722 F.2d at 1037 (quoting Gold v. Sec'y of H.E.W., 463 F.2d 38, 41 (2d Cir. 1972)). The Commissioner is required to examine: “(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.” Id. (citations omitted); accord Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (per curiam); Craig v. Comm'r of Soc. Sec., 218 F.Supp.3d 249, 260 (S.D.N.Y. 2016).
Five-Step Inquiry
“The Social Security Administration has outlined a ‘five-step, sequential evaluation process' to determine whether a claimant is disabled[.]” Estrella v. Berryhill, 925 F.3d 90, 94 (2d Cir. 2019) (citations omitted); 20 C.F.R. § 416.920(a)(4). First, the Commissioner must determine whether the claimant is currently engaged in any “substantial gainful activity.” 20 C.F.R. § 416.920(a)(4)(i). Second, if the claimant is unemployed, the Commissioner must decide if the claimant has a “severe medically determinable physical or mental impairment,” id. § 416.920(a)(4)(ii), which is an impairment or combination of impairments that “significantly limits [the claimant's] physical or mental ability to do basic work activities,” id. § 416.920(c). Third, if the claimant has such an impairment, the Commissioner considers whether the medical severity of the impairment “meets or equals” a listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. See id. § 416.920(a)(4)(iii), 416.920(d). If so, the claimant is considered disabled. Id.
If the claimant alleges a mental impairment, the Commissioner must apply a “special technique” 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. See 20 C.F.R § 416.920a; see also Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). “If the claimant is found to have a ‘medically determinable mental impairment,' the [Commissioner] 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.” Velasquez v. Kijakazi, No. 19-CV-9303 (DF), 2021 WL 4392986, at *18 (S.D.N.Y. Sept. 24, 2021) (quoting 20 C.F.R. §§ 416.920a(b), (c)(3)). “The functional limitations for these first three areas are rated on a five-point scale of none, mild, moderate, marked, or extreme, and the limitation in the fourth area (episodes of decompensation) is rated on a four-point scaled of none, one or two, three, or four or more.” Id.
Fourth, if the claimant's impairment does not meet or equal a listed impairment, the Commissioner continues to the fourth step and determines whether the claimant has the residual functional capacity (“RFC”) to perform his or her past relevant work. 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is able to do such work, he or she is not disabled. Id. § 416.920(a)(4)(iv). Finally, if the claimant is unable to perform past relevant work, the Commissioner must decide if the claimant's RFC, in addition to his or her age, education, and work experience, permits the claimant to do other work. Id. § 416.920(a)(4)(v). If the claimant cannot perform other work, he or she will be deemed disabled. Id. § 416.920(a)(4)(v).
The claimant has the burden at the first four steps. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). If the claimant is successful, the burden shifts to the Commissioner at the fifth and final step, where the Commissioner must establish that the claimant has the ability to perform some work in the national economy. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam).
Evaluation of 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. § 416.927(d)) (internal quotation marks omitted). For SSI applications filed before March 27, 2017, the SSA's regulations required application of the “treating physician rule,” which required an ALJ to give more weight to the opinions of physicians with the most significant relationship with the claimant. See 20 C.F.R. § 416.927(d)(2); see also Taylor v. Barnhart, 117 Fed.Appx. 139, 140 (2d Cir. 2004). Under the treating physician rule, an ALJ was required to provide her reasoning if she determined that a treating physician's opinion was not entitled to “controlling weight,” or at least “more weight,” than the opinions of non-treating and non-examining sources. Gonzalez v. Apfel, 113 F.Supp.2d 580, 588-89 (S.D.N.Y. 2000). In addition, under the treating physician rule, a consultative physician's opinion was generally entitled to “little weight.” Giddings v. Astrue, 333 Fed.Appx. 649, 652 (2d Cir. 2009).
On January 18, 2017, the SSA published comprehensive revisions to the regulations regarding the evaluation of medical evidence for applications filed on or after March 27, 2017 (such as Plaintiff's application in this case). See Revisions to the Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844, 5869-70, 2017 WL 168819 (Jan. 18, 2017). “In implementing new regulations, the SSA has apparently sought to move away from a perceived hierarchy of medical sources.” Velasquez, 2021 WL 4392986, at *19 (citing 82 Fed.Reg. 5844). The new regulations state that an ALJ need “not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources.” 20 C.F.R. §416.920c(a); see also Young v. Kijakazi, 20-CV-03606 (SDA), 2021 WL 4148733, at *9 (S.D.N.Y. Sept. 13, 2021). Instead, an ALJ must consider all medical opinions in the record and “evaluate the persuasiveness” based on five “factors”: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) any “other” factor that “tend[s] to support or contradict a medical opinion.” 20 C.F.R. § 416.920c(a)-(c).
The new regulations define “prior administrative medical finding” as: a “finding, other than the ultimate determination about whether you are disabled, about a medical issue made by our Federal and State agency medical and psychological consultants at a prior level of review (see § 416.1400) in your current claim based on their review of the evidence in your case record, including but not limited to: (i) The existence and severity of your impairment(s); (ii) The existence and severity of your symptoms; (iii) Statements about whether your impairment(s) meets or medically equals any listing in the Listing of Impairments in Part 404, Subpart P, Appendix 1; (iv) If you are an adult, your [RFC]; (v) Whether your impairment(s) meets the duration requirement; and (vi) How failure to follow prescribed treatment (see § 416.930) and drug addiction and alcoholism (see § 416.935) relate to your claim.” 20 C.F.R. § 416.913(a)(5).
Notwithstanding the requirement to “consider” all of these factors, the ALJ's duty to articulate a rationale for each factor varies. 20 C.F.R. § 416.1520c(a)-(b). Under the new regulations, the ALJ must “explain,” in all cases, “how [she] considered” both the supportability and consistency factors, as they are “the most important factors.” Id. § 416.920c(b)(2); see also Young, 2021 WL 4148733, at *9 (describing supportability and consistency as “the most important” of the five factors); Amber H. v. Saul, No. 3:20-CV-490 (ATB), 2021 WL 2076219, at *4 (N.D.N.Y. May 24, 2021) (noting that the two “most important factors for determining the persuasiveness of medical opinions are consistency and supportability,” the “same factors” that formed the foundation of the treating physician rule). With respect to the supportability factor, “the strength of a medical opinion increases as the relevance of the objective medical evidence and explanations presented by the medical source increase.” Vellone v. Saul, No. 20-CV-261 (RA) (KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021) (citing 20 C.F.R. § 416.920c(c)(1)); see Rivera, 2020 WL 8167136, at *16 (noting that supportability “has to do with the fit between the medical opinion offered by the source and the underlying evidence and explanations ‘presented' by that source to support [his or] her opinion”) (quoting 20 C.F.R. § 416.920c(c)(1)). Consistency, on the other hand, “is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record.” Vellone, 2021 WL 319354, at *6 (citing 20 C.F.R. § 416.920c(c)(2)).
As to the three remaining factors-relationship with the claimant, specialization, and “other”-the ALJ is required to consider, but need not explicitly discuss, them in determining the persuasiveness of the opinion of a medical source. 20 C.F.R. § 416.920c(b)(2). If the ALJ finds two or more medical opinions to be equally supported and consistent with the record, but not identical, the ALJ must articulate how she considered the three remaining factors. See id. § 416.920c(b)(3); see also Velasquez, 2021 WL 4392986, at *20. Thus, “[a]lthough the new regulations eliminate the perceived hierarchy of medical sources, deference to specific medical opinions, and assigning ‘weight' to a medication opinion, the ALJ must still ‘articulate how [she] considered the medical opinions' and ‘how persuasive [she] find[s] all of the medical opinions.'” Andrew G. v. Comm'r of Soc. Sec., No. 3:19-CV-942 (ML), 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (citations omitted). “If the ALJ fails adequately to ‘explain the supportability or consistency factors,' or bases [his] explanation upon a misreading of the record, remand is required.” Rivera, 2020 WL 8167136, at *14 (quoting Andrew G., 2020 WL 5848776, at *9).
Courts considering the application of the new regulations have concluded that “the factors are very similar to the analysis under the old [treating physician] rule.” Velasquez, 2021 WL 4392986, at *20 (quoting Dany Z. v. Saul, 531 F.Supp.3d 871, 885 (D. Vt. 2021)); see also Acosta Cuevas v. Comm'r of Soc. Sec., No. 20-CV-502 (AJN) (KHP), 2021 WL 363682, at * 9 (S.D.N.Y. Jan. 29, 2021), report and recommendation adopted, 2022 WL 717612 (Mar. 10, 2022) (collecting cases considering the new regulations and concluding that “the essence” of the treating physician 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”). “This is not surprising considering that, under the old rule, an ALJ had to determine whether a treating physician's opinion was supported by well-accepted medical evidence and not inconsistent with the rest of the record before controlling weight could be assigned.” Acosta Cuevas, 2021 WL 363682, at *9; see also e.g., Andrew G., 2020 WL 5848776, at *5 (noting that “consistency and supportability” were the foundation of the treating physician rule).
Claimant's Credibility
An ALJ's credibility finding as to the claimant's disability is entitled to deference by a reviewing court. Osorio v. Barnhart, No. 04-CV-7515 (DLC), 2006 WL 1464193, at *6 (S.D.N.Y. May 30, 2006). “[A]s with any finding of fact, ‘[i]f the [Commissioner's] findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount a claimant's subjective complaints.'” Id. (quoting Aponte v. Sec'y of Health and Hum. Servs., 728 F.2d 588, 591 (2d Cir. 1984)). Still, an ALJ's finding of credibility “must . . . be set forth with sufficient specificity to permit intelligible plenary review of the record.” Pena v. Astrue, 2008 WL 5111317, at *10 (S.D.N.Y. Dec. 3, 2008) (quoting Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988)) (internal quotation marks omitted). “The ALJ must make this [credibility] determination ‘in light of the objective medical evidence and other evidence regarding the true extent of the alleged symptoms.'” Id. (quoting Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984)).
SSA regulations provide that statements of subjective pain and other symptoms alone cannot establish a disability. Genier, 606 F.3d at 49 (2d Cir. 2010). The ALJ must follow a two-step framework for evaluating allegations of pain and other limitations. Id. First, the ALJ considers whether the claimant suffers from a “medically determinable impairment that could reasonably be expected to produce” the symptoms alleged. Id.; see also 20 C.F.R. § 416.929(b). “If the claimant does suffer from such an impairment, at the second step, 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.; see also 20 C.F.R. § 416.929(a). Among the kinds of evidence that the ALJ must consider (in addition to objective medical evidence) are:
1. The individual's daily activities; 2. [t]he location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. [f]actors that precipitate and aggravate the symptoms; 4. [t]he type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. [t]reatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. [a]ny measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. [a]ny other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.Pena, 2008 WL 5111317, at *11 (citing Social Security Ruling (“SSR”) 96-7p, 1996 WL 374186, at *3 (SSA July 2, 1996)).
B. The ALJ's Decision
On July 9, 2020, the ALJ issued her decision, finding that Plaintiff “has not been under a disability within the meaning of the Social Security Act since January 2, 2018, the date the application was filed.” R. at 14. The ALJ began by explaining the five-step evaluation process for determining whether an individual is disabled. Id. at 14-15; see suprapp. 21-23.
The ALJ found at step one that Plaintiff had “not engaged in substantial gainful activity” since the date of his application. Id. at 15. At step two, the ALJ found that Plaintiff had 10 severe medically determinable impairments-PTSD; depression; bipolar disorder; learning disorder; intermittent explosive disorder; articulation disorder; a right jaw fracture; asthma; obesity; and scoliosis. Id. At step three, the ALJ found that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).” Id. at 16. The ALJ discussed Plaintiff's physical impairments (including his obesity, asthma, speech disorder, and joint dysfunction), and explained why she found the severity of each impairment did not meet the corresponding listing. Id.
In assessing Plaintiff's mental impairments, the ALJ found that the severity of those mental impairments, “considered singly and in combination, do not meet or medically equal the criteria for any of the mental listings.” Id. at 16. In order to reach this finding, the ALJ applied evidence in the record to each of the “four broad functional areas” (known as “paragraph B” criteria), including: (1) understanding, remembering or applying information; (2) interacting with others; (3) concentrating, persisting or maintaining pace; and (4) adapting or managing oneself. Id. at 16-17. The ALJ concluded that Plaintiff's mental impairments caused no more than a “moderate” limitation in any of the functional areas, and that “[b]ecause the [Plaintiff]'s mental impairments do not cause at least two ‘marked' limitations or one ‘extreme' limitation, the ‘paragraph B' criteria are not satisfied.” Id. at 17.
Prior to proceeding to step four, the ALJ found, “[a]fter careful consideration of the entire record,” that Plaintiff maintained “the residual functional capacity to perform light work as defined in 20 C.F.R 416.967(b), with some exceptions[.]” Id. at 18. The ALJ explained that in making the RFC finding, she “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence,” and “also considered the medical opinion(s) and prior administrative medical findings” as required by 20 C.F.R. 416.92(c). Id. In considering Plaintiff's symptoms, the ALJ followed the established two-step process: (1) determining whether there was an underlying medically determinable physical or mental impairment; and (2) if such an impairment was shown, evaluating the “intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's work-related activities.” Id. The ALJ analyzed Plaintiff's impairments and, after considering the medical records and other evidence, found that despite the fact that Plaintiff's “medically determinable impairments could reasonably be expected to cause some of the alleged symptoms,” Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record.” Id. at 18-23. The ALJ also independently evaluated each the various medical opinions and prior administrative medical findings, and rendered each opinion “persuasive,” “partially persuasive,” “somewhat persuasive,” or “not persuasive,” based on an analysis of the “supportability” and “consistency” factors. Id. at 23-26. The ALJ thus concluded that Plaintiff maintained the ability to perform light, unskilled work. Id. at 18, 26-27.
The exceptions were that Plaintiff could “lift, carry, push, and pull 20 pounds occasionally and ten pounds frequently, stand and/or walk six hours, and sit for six hours, with no more than occasional ladders, ropes, scaffolds, or hazards, such as dangerous machinery or heights; no more than occasional ramps, stairs, balancing, stooping, kneeling, crouching, or crawling; and no more than occasional exposure to dusts, fumes, gases, poor ventilation, or temperature extremes.” R. at 18. The ALJ found that Plaintiff is “limited to unskilled work of reasoning level one or two, with no public contact, no more than occasional coworker or supervisory contact, and no telephone work” and “would be absent one time a month.” Id.
At step four, the ALJ found that Plaintiff had “no past relevant work.” Id. at 26. At step five, the ALJ considered Plaintiff's “age, education, work experience, and residual functional capacity,” and found that “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform.” Id. Based on the VE testimony at Plaintiff's hearing and the Medical-Vocational Guidelines, the ALJ concluded that a finding of “not disabled” was appropriate because Plaintiff retained the RFC such that he was “capable of making a successful adjustment” to perform certain occupations. Id. at 26-27. Specifically, the ALJ cited the VE's testimony that given Plaintiff's age, education, work experience, and RFC, such an individual would be able to perform “light” and “unskilled” work as a: (1) Bagger (DOT 920.687-019); (2) Racker (DOT 524.687-018); or (3) Drying Room Attendant (DOT 581.687-014). Id. at 27. Accordingly, the ALJ concluded that Plaintiff “has not been under a disability” as defined in the Social Security Act, “since January 2, 2018, the date the application was filed.” Id. (citing 20 CFR 416.920(g)).
The ALJ also noted that he determined the VE's testimony to be “consistent with the information contained in the Dictionary of Occupational Titles.” Id. at 27.
C. The ALJ's Determination is Not Supported by Substantial Evidence
In support of her motion for judgment on the pleadings, the Commissioner argues that the ALJ's decision applied the correct legal standard and was supported by substantial evidence. See Def.'s Br. at 15-25. Plaintiff counters that the ALJ's decision was not supported by substantial evidence for several reasons. See Pl.'s Br. at 18-31. First, Plaintiff contends that the ALJ could not rely on the functional assessments of Drs. Miller and Popple in crafting an RFC, while simultaneously rejecting the medical diagnoses of those doctors and finding Plaintiff to suffer from more severe impairments. And relatedly, Plaintiff also argues that the ALJ wholly failed to properly weigh and explain how she evaluated the medical opinions of the state examiners, Drs. Miller, Popple, and Brown. Id. at 21-26. Second, Plaintiff claims that Drs. Miller and Popple were not provided necessary background medical information about Plaintiff. Id. at 19-20, 28. Third, Plaintiff contends that because the ALJ rejected the diagnoses of Drs. Popple and Miller, she was required to develop the record further and obtain a functional assessment from Dr. Liu, the individual who had the most contact with Plaintiff over a sustained period of time and who diagnosed Plaintiff with the medical impairments the ALJ found were supported by the record, but who had not offered a medical opinion or functional assessment of Plaintiff. Id. at 26-28. Finally, Plaintiff argues that the ALJ's hypothetical questions to the vocational expert failed to include any mention of some of Plaintiff's significant impairments, such as his articulation disorder, even though the record provided ample support for the existence of such an impairment. Id. at 28-31. As to all four grounds, a review of the record demonstrates that Plaintiff is correct.
As an initial matter, Plaintiff does not contest the ALJ's finding that Plaintiff's physical impairments enabled him to perform the exertional demands of light work. Pl.'s Br. at 8. Accordingly, I do not address the ALJ's determination concerning Plaintiff's physical impairments (asthma, obesity, and scoliosis) that relate solely to Plaintiff's physical capacity to do work. Instead, I address only Plaintiff's challenge to the ALJ's determination as it concerns his mental impairments and articulation disorder. As discussed below, the ALJ's decision is not supported by substantial evidence for several reasons: (1) the ALJ relied upon the medical opinions and functional assessments of state agency consultative examiners, Drs. Miller and Popple, while simultaneously rejecting their diagnoses of Plaintiff's mental impairments, and failed to explain why she found their opinions, and the opinion of Dr. Brown, well supported and consistent with the record; (2) Drs. Miller and Popple were not provided necessary medical background information about Plaintiff; (3) the ALJ failed to fully develop the record by not obtaining an additional psychiatric functional assessment conducted by an examiner who had reviewed Plaintiff's medical background or had a history of treating Plaintiff for his mental impairments; and (4) the ALJ erred in crediting the one-time speech evaluation of Ms. Rodriguez and failed to adequately take into account Plaintiff's articulation disorder in crafting the hypothetical to the VE and in formulating Plaintiff's RFC.
1. The ALJ Erred in Relying on the Functional Assessments of Drs. Miller and Popple, and the Opinion of Dr. Brown, to Support the RFC Determination
The ALJ credited the diagnoses of Dr. Liu, finding that Plaintiff suffers from PTSD, bipolar disorder, a learning disorder, intermittent explosive disorder, and major depressive disorder-all of which, the ALJ determined, qualified as “severe” impairments. R. at 15. The ALJ thus implicitly rejected the diagnoses of the two state consultative examiners, Drs. Miller and Popple, both of whom diagnosed Plaintiff with only one mental impairment-persistent depressive disorder. Despite implicitly rejecting the diagnoses of Drs. Miller and Popple, and finding Plaintiff to be suffering from more severe mental impairments, the ALJ nevertheless credited their functional assessments in crafting Plaintiff's RFC. That was error, as the Second Circuit explained in Curry v. Apfel, 209 F.3d 117, 123-24 (2d Cir. 2000) (superseded by regulation on other grounds by 20 C.F.R. § 404.1560(c)(2)).
In Curry, the ALJ determined that the plaintiff had “severe osteoarthritis of the right knee,” but nevertheless relied upon a consulting physician's opinion that had diagnosed the plaintiff with only a “mild generative joint disease in the left knee.” See id. at 124 (internal quotation marks omitted). In concluding that the ALJ had erred, the Second Circuit explained that the ALJ had not “reconcile[d] this conflict” and thus could not “reject [the consulting physician's] diagnosis while simultaneously relying on his opinion concerning impairment.” Id. As in Curry, the ALJ implicitly rejected the diagnoses of Drs. Miller and Popple, who found Plaintiff to suffer from only persistent depressive disorder and speech sound disorder, and instead found that Plaintiff suffers from PTSD, depression, bipolar disorder, learning disorder, intermittent explosive disorder, major depressive disorder, and articulation disorder. R. at 15. Yet, in crafting Plaintiff's RFC, the only mental-health examinations relied upon by the ALJ were those of Drs. Miller and Popple. But nowhere does the ALJ account for or explain why she credited the functional assessments of Drs. Miller and Popple despite concluding that Plaintiff's impairments and diagnoses were those identified by Dr. Liu. “The ALJ's ultimate rejection of [Drs. Miller and Popple's] alleged view of [Plaintiff's] functional capacity undermines [her] ability to deploy” their opinions as “substantial evidence” to support the determination. Cora v. Colvin, No. 15-CV-1549 (AJN), 2016 WL 4581343, at *6 (S.D.N.Y. Sept. 1, 2016).
Moreover, the ALJ wholly failed to explain why she accepted Drs. Miller's and Popple's opinions given that she rejected their diagnoses. Although the ALJ states that Drs. Miller's and Popple's opinions are “fairly consistent” with the record, nowhere does the ALJ explain why the opinions are consistent with the record given that neither doctor found Plaintiff to be suffering from any of the diagnoses determined by the ALJ and other examiners. Further, although the ALJ found the opinion of the non-examining state psychologist, Dr. Brown, to be “persuasive,” R. at 23, the ALJ failed to properly weigh that opinion. While “the evaluations of non-examining State agency medical and psychological consultants may constitute substantial evidence,” McEaney v. Comm'r of Soc. Sec., 536 F.Supp.2d 252, 256 (N.D.N.Y. 2008) (citing Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir.1993)), courts are skeptical of a doctor's opinion that merely assesses the findings of another doctor, see Pratt v. Chater, 94 F.3d 34, 38 (2d Cir. 1996) (citing cases). Dr. Brown's opinion, which was based solely on his review of other medical records, provides no explanation as to how he reached his determination that Plaintiff's impairments were only “moderate.” Indeed, Dr. Brown provides no rationale for his opinion and nor does he explain what he means by “moderate.” Consequently, Dr. Brown's opinion also does not provide substantial evidence for the ALJ's determination.
Plaintiff and the Commissioner each recognize that Dr. Liu qualifies as the only treating physician with respect to Plaintiff's mental impairments, and that Dr. Liu did not provide a functional assessment of Plaintiff. Pl.'s Br. at 9-10, 27-28; Def.'s Br. at 16-17. Without a functional assessment from a treating physician like Dr. Liu, and having implicitly rejected the diagnoses of Drs. Miller and Popple, the ALJ was left with only the opinion of the non-examining state agency reviewing physician, Dr. Brown, which, as already discussed, does not provide substantial evidence for the determination.
2. The ALJ Erred in Relying on the Examinations of Drs. Miller and Popple because they were not Provided with Appropriate Background Medical Records
The ALJ's determination is not supported by substantial evidence for an additional reason: the ALJ relied on the consultative examinations of two doctors who had not reviewed relevant medical information about Plaintiff that could have affected their diagnoses and assessments. The SSA requires state disability determination agencies to “give the examiner any necessary background information about [the Plaintiff's] condition.” 20 C.F.R. § 404.1517. Failure to comply with this requirement undermines the value of a consultive examiner's opinion and can cause it to fall below the minimal requirements for substantial evidence where the examiner has not been provided with the history of Plaintiff's “chief complaints.” Mills v. Berryhill, No. 15-CV-05502 (DLI), 2017 WL 1155782, at *10 (E.D.N.Y. Mar. 27, 2017); see also Benitez, 2021 WL 4239244, at *17 (finding that the consultative examiner should have reviewed treatment notes “in order to have a longitudinal picture of [the plaintiff's] mental health impairments.”); Murphy v. Saul, No. 17-CV-1757 (PKC), 2019 WL 4752343, at *6-7 (E.D.N.Y. Sept. 30, 2019) (concluding that reliance on opinion of consultative examiner who had not reviewed all relevant medical evidence was error); Figueroa v. Saul, No. 18-CV-4534, 2019 WL 4740619, at *26 (S.D.N.Y. Sept. 27, 2019) (opinion of consultative examiner who did not review all relevant medical information could not provide substantial evidence to support RFC determination); Citro v. Colvin, No. 16-CV-6564, 2018 WL 1582443, at *14 (S.D.N.Y. Mar. 28, 2018) (same).
Here, the record is replete with medical background information and the evaluations of other psychiatrists and physicians that would have provided Drs. Miller and Popple with relevant information about Plaintiff's mental impairments. But Drs. Miller and Popple never reviewed and thus did not consider the medical background information or evaluations and reports of other examiners in reaching their opinions. See R. at 572-76, 595-602; Pl.'s Br. at 19-20, 28. Instead, both Drs. Miller and Popple relied solely on Plaintiff's own self-reporting during their respective one-time examinations of Plaintiff. As explained below, Plaintiff did not accurately report his own medical history to either examiner.
For instance, records from Plaintiff's psychiatric examinations conducted between 2008 and 2014 illustrate that Plaintiff was diagnosed with, among other things, PTSD, intermittent explosive disorder, major depressive disorder, and bipolar disorder. R. at 367-69, 373, 638, 685-714. In Dr. Liu's various reports spanning from 2014 through 2018, she indicated that Plaintiff presented signs and symptoms of active bipolar disorder, and had a history of intermittent explosive disorder, behavioral difficulties, irritability, aggression, and both depressive and manic episodes. Id. at 315. The various FEDCAP assessments between 2017 and 2018 also found that Plaintiff suffered from various mental impairments, including bipolar disorder, a learning disability, PTSD, and unspecified personality and mood disorders. Id. at 367-69, 373, 421-22, 1021-22. While Plaintiff noted his depression, bipolar disorder, and PTSD to Dr. Miller, Plaintiff failed to mention these diagnoses to Dr. Popple. See id. at 572-576, 595-602. Plaintiff also failed to note his diagnosis of intermittent explosive disorder to either doctor, and he did not provide either doctor with his history of manic episodes and explosive acts of violence. Id.; Pl.'s Br. at 14-15.
Additionally, Plaintiff has had a multitude of inpatient hospitalizations and has attempted suicide several times. Pl.'s Br. at 1, 8-9; Def.'s Br. at 4. Prior to 2011, Plaintiff was repeatedly hospitalized in psychiatric facilities due to anger outbursts and suicide attempts. R. at 312-17, 331, 430, 691, 947. For instance, Plaintiff was hospitalized for two weeks at Bellevue Hospital in April 2010 following a suicide attempt. Id. at 312-14, 331. Although there are no direct records of earlier hospitalizations, notations throughout the record suggest that Plaintiff has had between seven and ten total inpatient psychiatric hospitalizations. Id. at 289, 312-17, 331, 430, 685, 691, 707, 947, 1633; Pl.'s Br. at 8-9; Def.'s Br. at 4. And the record indicates that Plaintiff has attempted suicide at least three to four times. R. at 331, 691. At various times, Plaintiff has reported suicidal ideation and a history of suicide attempts. See e.g., Id. at 315-17 (Dr. Liu evaluation), 1649 (N.P. Yueng report), 991-93, 1002 (Dr. Heiss report). By contrast, in his examination with Dr. Miller, Plaintiff admitted to only one suicide attempt and one hospitalization for mental illness in 2010. R. at 572. And to Dr. Popple, Plaintiff admitted to only one suicide attempt and two hospitalizations for mental illness. Id. at 595-96.
Plaintiff also has a history of sexual abuse: he was sexually abused by his stepfather as a young child, witnessed his stepfather abuse his sister, and Plaintiff himself abused his younger step-siblings when he was a teenager, resulting in his arrest, adjudication as a sex offender, and institutionalization, from the ages of 16 to 20, in programs “for youthful sex offenders.” Pl.'s Br. at 1, 8-9; R. at 521, 631-73, 686, 690, 710, 947, 1649-51.Dr. Miller's report suggests that Plaintiff omitted mention of any history of sexual abuse (either as a victim or a perpetrator). R. at 572-76. And to Dr. Popple, Plaintiff omitted mention of his sexual abuse of his siblings. Id. at 595-96.
Upon his discharge in 2009, Plaintiff stayed at homeless shelters and briefly lived in residential behavioral programs before moving into supported housing. R. at 216, 285, 317, 707-08, 946, 951-69, 1649. Plaintiff also failed to report this information to Drs. Miller and Popple.
A review of any of Plaintiff's prior medical records or the evaluations of other psychiatrists or physicians would have provided Drs. Miller and Popple with necessary information about Plaintiff's psychiatric history, particularly given that both doctors only examined Plaintiff once. However, nothing in their respective reports indicate that either doctor reviewed any medical records or other background documentation. As a result, Drs. Miller and Popple relied solely on Plaintiff's representations about his symptoms, psychiatric history, and medical background during their one-time evaluation. And as just shown, Plaintiff provided Drs. Miller and Popple with a highly inaccurate picture of his medical background. Indeed, Plaintiff's representations during his evaluations by Drs. Miller and Popple were inconsistent with the findings of the ALJ and the evidence in the record as a whole. Plaintiff's inaccurate self-presentation, coupled with the fact that Drs. Miller and Popple did not review Plaintiff's past medical records, prevented Drs. Miller and Popple from offering opinions-based on their single evaluation of a Plaintiff with a long history of mental illness-that a reasonable person would find convincing. Stated otherwise, Drs. Miller's and Popple's opinions do not provide substantial evidence to support the ALJ's determination.
3. The ALJ Failed to Sufficiently Develop the Record
“Social Security proceedings are inquisitorial rather than adversarial.” Sims v. Apfel, 530 U.S. 103, 110-11 (2000). An ALJ must therefore “investigate the facts and develop the arguments both for and against granting benefits,” id. at 111, and has “regulatory obligations to develop a complete medical record before making a disability determination,” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996); see 20 C.F.R. § 416.912(b)(1). This obligation exists even when the Plaintiff is represented by counsel. Russ v. Comm'r of Soc. Sec., 582 F.Supp.3d 151, 162 (S.D.N.Y. 2022) (citation omitted); see also Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (“Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.”) (citation omitted). More specifically, “[t]he record as a whole must be complete and detailed enough to allow the ALJ to determine [plaintiff's] residual functional capacity.” Casino-Ortiz v. Astrue, No. 06-CV-0155 (DAB) (JCF), 2007 WL 2745704, at *7 (S.D.N.Y. Sept. 21, 2007), report and recommendation adopted, 2008 WL 461375 (S.D.N.Y. Feb. 20, 2008).
Prior to elimination of the treating physician rule, as part of the duty to develop the record, an ALJ was required to obtain an opinion from the Plaintiff's treating physician, and courts frequently remanded cases where ALJs failed to do so. See, e.g., Hooper v. Colvin, 199 F.Supp.3d 796, 815 (S.D.N.Y. 2016). An ALJ's failure to obtain a treating source opinion did not, however, necessarily require remand in every case. See Swiantek v. Comm'r of Soc. Sec., 588 Fed.Appx. 82, 84 (2d Cir. 2015). For instance, where “the record contains sufficient evidence from which an ALJ can assess the petitioner's residual functional capacity,” an ALJ's failure to request an opinion from a treating source addressing the plaintiff's RFC did not, by itself, require a remand. Tankisi v. Comm'r of Soc. Sec., 521 Fed.Appx. 29, 34 (2d Cir. 2013).
The need for a medical source statement from the treating physician hinged “on [the] circumstances of the particular case, the comprehensiveness of the administrative record, and, at core, whether an ALJ could reach an informed decision based on the record.” Sanchez v. Colvin, No. 13-CV-6303 (PAE), 2015 WL 736102, at *5 (S.D.N.Y. Feb. 20, 2015) (citing Tankisi, 521 Fed.Appx. at 33-34). Even after the elimination of the treating physician rule, “whether remand is required because of [a] failure to obtain an opinion from the claimant's treating physician depends on whether the ALJ could have reached an informed decision based on substantial evidence without it.” Russ, 582 F.Supp.3d at 163; see also Prieto v. Comm'r of Soc. Sec., No. 20-CV-3941 (RWL), 2021 WL 3475625, at *10-12 (S.D.N.Y. Aug. 6, 2021) (remanding where ALJ failed to obtain medical opinions from either of Plaintiff's treating physicians); Angelica M. v. Saul, No. 20-CV-0727 (JCH), 2021 WL 2947679, at *9 (D. Conn. July 13, 2021) (remanding and directing ALJ to seek updated medical source statement from treating therapist and treating physician); Manzella v. Comm'r of Soc. Sec., No. 20-CV-3765 (VEC) (SLC), 2021 WL 5910648, at *14-16 (S.D.N.Y. Oct. 27, 2021), report and recommendation adopted, 2021 WL 5493186 (S.D.N.Y. Nov. 22, 2021) (remanding, in part, because record was not sufficient without medical source statements from plaintiff's treating physicians).
Here, the ALJ did not have a sufficient record on which to make her determination given her implicit rejections of the mental diagnoses of Drs. Miller and Popple. As noted, Drs. Miller and Popple diagnosed Plaintiff with only persistent depressive disorder and speech sound disorder. By contrast, the ALJ determined that Plaintiff suffered from bipolar disorder, PTSD, learning disorder, intermittent explosive disorder, major depressive disorder, and articulation disorder. Drs. Miller and Popple also did not review medical background information that was directly relevant to their assessment of Plaintiff's mental impairments. And although Dr. Liu diagnosed Plaintiff with the impairments found by the ALJ, Dr. Liu offered no functional assessment of Plaintiff. There thus is no medical opinion in the record that corresponds with the ALJ's determination as to both Plaintiff's mental impairments and functional capacity.
In the absence of a medical opinion to support an ALJ's finding as to a plaintiff's ability to perform a certain level of work, “it is well-settled that the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (citation and internal quotation marks omitted); see also Greek, 802 F.3d at 375 (an “ALJ is not permitted to substitute his own expertise or view of the medical proof for the treating physician's opinion or for any competent medical opinion”) (citation omitted); Hilsdorf v. Comm'r of Soc. Sec., 724 F.Supp.2d 330, 347 (E.D.N.Y. 2010) (“[A]n ALJ who makes an RFC determination in the absence of supporting expert medical opinion has improperly substitute his own opinion for that of a physician, and has committed legal error.”). This is thus a case where the record does not contain “sufficient evidence from which an ALJ can assess the [plaintiff]'s residual functional capacity.” Prince v. Colvin, No. 13-CV-7666 (TPG), 2015 WL 1408411, *17 (S.D.N.Y. 2015) (quoting Tankisi, 521 Fed.Appx. at 33-34); see also Monroe v. Comm'r of Soc. Sec., 676 Fed.Appx. 5, 8 (2d Cir. 2017) (explaining that where “the record contains sufficient evidence from which an ALJ can assess the [claimant's] residual functional capacity, a medical source statement or formal medical opinion is not necessarily required”) (citation omitted; alteration in original). Given the ALJ's implicit rejection of the medical opinions of Drs. Miller and Popple, the ALJ was required to obtain a medical opinion from a treating or examining source, like Dr. Liu, who did not provide a functional assessment of Plaintiff. See Russ, 582 F.Supp.3d at 165-66. As Plaintiff notes, the ALJ could have, among other things, (1) requested the medical opinion of a treating physician, such as Dr. Liu; or (2) “ordered a re-examination by Dr. Miller or Dr. Popple after ensuring that they were provided with [Plaintiff's] necessary background information.” Pl.'s Br. at 27-28.
4. The ALJ's Hypothetical to the Vocational Expert was Flawed
The ALJ found “articulation disorder” to be one of Plaintiff's medically determinable severe impairments, but explained that “[t]he evidence failed to establish that [Plaintiff] has an inability to produce by any means speech that can be heard, understood, or sustained, to the degree indicated” under the corresponding listing in the regulations. R. at 15-16. In support of her determination, the ALJ relied on the August 2019 one-time consultative speech evaluation conducted by Mirta Rodriguez, a certified speech pathologist, who opined that Plaintiff “communicated effectively using adequate fluency, but with reduced vocal quality impacting his overall articulation” and found that his speech was “at 70 percent intelligibility.” Id. at 21, 591. Ms. Rodriguez found Plaintiff to have “average receptive and expressive language skills” and diagnosed Plaintiff with only “a moderate speech delay.” Id. at 21, 592.
The Second Circuit has “cautioned that ALJs should not rely heavily on the findings of consultative physicians after a single examination,” Selian, 708 F.3d at 419 (2d Cir. 2013); see also Schillo v. Kijakazi, 31 F.4th 64, 77 n.5 (2d Cir. 2022) (“[I]t can be problematic when an ALJ affords [the findings of a consultative physician] more weight than a treating physician's findings[.]”). At the same time, courts in this District have found that “the opinions of state agency medical and psychological consultants may constitute substantial evidence, if they are in turn supported by evidence in the record.” Cruz o/b/o AET v. Saul, No. 20-CV-1045 (CS) (JCM), 2021 WL 3375614, at *7 (S.D.N.Y. Jun. 30, 2021) (citation and internal quotation marks omitted). While the ALJ's decision need not “mention[ ] every item of testimony presented,” Mongeur, 722 F.2d at 1040, or “‘reconcile explicitly every conflicting shred of medical testimony,'” Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983)), the ALJ may not ignore or mischaracterize evidence of a person's alleged disability. See Ericksson v. Comm'r Of Soc. Sec., 557 F.3d 79, 82-84 (2d Cir. 2009); Ruiz v. Barnhart, No. 01-CV-1120 (DC), 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002).
Here, the ALJ's reliance on the one-time consultative speech evaluation conducted by Ms. Rodriguez was error because her finding is inconsistent with the record as a whole, which shows a documented and extensive history of Plaintiff's significant speech disorder. For instance, the licensed clinical social worker Nella Akilova found that Plaintiff's speech was mumbled and garbled; Dr. Miller found that Plaintiff's speech intelligibility was “characterized by a severe articulation problem,” diagnosed Plaintiff with a speech sound disorder, and recommended speech therapy; and Dr. Liu noted that Plaintiff's speech was “fast with dysarthria.” R. at 19-20. Moreover, Dr. Liu's October 2017 wellness plan stated that Plaintiff had “disarticulation that made him difficult to understand at times.” Id. at 443. Dr. Heiss, who conducted a FEDCAP evaluation of Plaintiff in July 2018, determined that Plaintiff had difficulty communicating due to a speech impediment. Id. at 1019. Dr. Popple likewise found that Plaintiff had “moderate articulation difficulty.” Id. at 596-97.
Moreover, despite the consistent evidence in the record indicating that Plaintiff suffers from a significant speech disorder, the ALJ, without explanation, credited Dr. Rodriguez's one-time assessment and omitted mention of Plaintiff's speech impairment in her hypothetical questions to the VE. “A hypothetical question that does not present the full extent of a claimant's impairments cannot provide a sound basis for vocational expert testimony.” Jehn v. Barnhart, 408 F.Supp.2d 127, 136-37 (E.D.N.Y. 2006) (finding hypothetical questions asked at hearing “did not accurately incorporate the full range of the Plaintiff's limitations and restrictions caused by his partial epilepsy”) (citation omitted); Lugo v. Chater, 932 F.Supp. 497, 503-04 (S.D.N.Y. 1996) (finding “vocational expert's testimony [was] unreliable because the ALJ's questioning was based on hypothetical examples which did not accurately describe [Plaintiff]'s abilities”); De Leon v. Sec'y of Health and Human Servs., 734 F.2d 930, 937 (2d Cir. 1984) (finding that ALJ erred in failing to “present the full extent of [Plaintiff's] physical disabilities” in hypothetical posed to VE). Although the Commissioner argues that the ALJ's hypothetical to the VE was adequate because it posited no telephone work and no public contact (Def.'s Reply Br. at 9-10), the hypothetical did require that Plaintiff be able to have occasional contact with supervisors and coworkers, ignoring the extensive evidence in the record which demonstrated that Plaintiff would be unable to have such contact. Moreover, the ALJ failed to account for whether Plaintiff's inability to communicate effectively with coworkers and supervisors would be a stressor that could lead to manic episodes or result in a trigger for his intermittent explosive disorder. In short, the ALJ erred because “[t]he hypothetical question posed to [the] vocational expert” did not fully set forth Plaintiff's significant speech disorder, which was reflected in the record. Kuleszo v. Barnhart, 232 F.Supp.2d 44, 57 (W.D.N.Y. 2002).
Plaintiff also asserts that the ALJ's hypothetical questions to the VE omitted mention of his poor hygiene. Pl.'s Br. at 30-31. However, there is conflicting evidence in the record on this point, and to the extent the record before the ALJ contained conflicting evaluations of Plaintiff's hygiene, it was within the ALJ's province to resolve that conflict. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”); Herrera v. Comm'r of Soc. Sec., No. 20-CV-7910 (KHP), 2021 WL 4909955, at *9 (S.D.N.Y. Oct. 21, 2021) (upholding ALJ's determination which “noted and discussed” conflicting medical evidence and “arrived at a decision based on the record as a whole”).
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Commissioner's motion for judgment on the pleadings be DENIED, Plaintiff's cross-motion for judgment on the pleadings be GRANTED, and the case be REMANDED for further administrative proceedings.
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), 6(b), 6(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 Honorable J. Paul Oetken. 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 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); 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).