Opinion
7:20-CV-09429-KMK-GRJ
07-19-2022
PETER JAMES L., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES, MAGISTRATE JUDGE
In April of 2018, Plaintiff Peter James L. applied for Disability Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the application. Plaintiff, represented by the Law Office of Charles E. Binder and Harry J. Binder, LLP, Charles E. Binder, 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 May 2, 2022. Presently pending are the parties' Motions for Judgment on the Pleadings under Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket No. 20, 24). For the following reasons, it is recommended that Plaintiff's motion should be granted, the Commissioner's motion should be denied, and this matter should be remanded for further proceedings.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on April 30, 2018, alleging disability beginning September 30, 2017. (T at 166-67). Plaintiff's application was denied initially and on reconsideration. He requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on May 10, 2019, before ALJ Alexander G. Levine. (T at 75-107). Plaintiff appeared with an attorney and testified. (T at 80-100). The ALJ also received testimony from Margaret L., Plaintiff's mother. (T at 101-106).
Citations to “T” refer to the administrative record transcript at Docket No. 16.
B. ALJ's Decision
On October 21, 2019, the ALJ issued a decision denying the application for benefits. (T at 25-47). The ALJ found that Plaintiff had not engaged in substantial gainful activity since September 30, 2017 (the alleged onset date). (T at 30). The ALJ determined that Plaintiff meets the insured status requirements under the Social Security Act through December 31, 2022. (T at 30).
The ALJ concluded that Plaintiff's Unspecified Bipolar Disorder; Agoraphobia with Panic Attacks; Alcohol Use Disorder (in remission), Borderline Intellectual Functioning; and Anxiety were severe impairments as defined under the Act. (T at 30). 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 31).
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: he is limited to simple, routine, and repetitive tasks, with only occasional decision-making, occasional changes in the work setting, and occasional interaction with the public, co-workers, and supervisors. (T at 34).
The ALJ concluded that Plaintiff could not perform his past relevant work as a retail sales clerk or security guard. (T at 39). However, considering Plaintiff's age (31 on the alleged onset date), education (at least high school, able to communicate in English), work experience, and RFC, the ALJ determined that there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 39-40). 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 September 30, 2017 (the alleged onset date) and October 21, 2019 (the date of the ALJ's decision). (T at 40-41).
On September 8, 2020, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. (T at 18-24).
C. Procedural History
Plaintiff commenced this action by filing a Complaint on November 10, 2020. (Docket No. 1). Plaintiff filed a motion for judgment on the pleadings, supported by a memorandum of law, on October 7, 2021. (Docket No. 20, 21). The Commissioner interposed a cross-motion for judgment on the pleadings, supported by a memorandum of law, on December 13, 2021. (Docket No. 24, 25). On January 4, 2022, Plaintiff submitted a reply memorandum of law. (Docket No. 26). The matter was assigned to the undersigned for a report and recommendation on May 2, 2022.
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, withoutconsidering 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 the 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 main arguments in support of his challenge to the ALJ's decision. First, he contends that the ALJ failed to adequately analyze the medical opinion evidence. Second, Plaintiff challenges the ALJ's credibility determination. This Court will address each argument in turn.
A. Medical Opinion Evidence
“Regardless of its source, the ALJ must evaluate every medical opinion in determining whether a claimant is disabled under the [Social Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. §§ 404.1527(c), 416.927(d) (2020)) (internal quotation marks omitted).
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's application for benefits was filed 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).
The record in the present case contains several medical opinions, which are summarized below.
1. Dr. Kerenyi
Dr. Laura Kerenyi performed a consultative psychiatric evaluation in June of 2018. Dr. Kerenyi described Plaintiff as cooperative and anxious, but alert and oriented with intact memory, attention, and concentration. (T at 489-90). He displayed poor insight and judgment. (T at 490).
Dr. Kerenyi opined that Plaintiff was not limited in his ability to understand, remember, or apply simple directions and instructions; not limited in his ability to use reason and judgment to make work-related decision; mildly limited with respect to interacting adequately with others; not limited in sustaining concentration or performing at a consistent pace; mildly limited in his ability to sustain an ordinary routine and regular attendance; mildly limited in regulating emotions, controlling behavior, and maintaining well-being; and not limited with respect to maintaining personal hygiene and appropriate attire; and not limited in awareness of normal hazards or with respect to taking appropriate precautions. (T at 491).
Dr. Kerenyi diagnosed unspecified depressive disorder; specific phobia to crowds and germs; rule out panic attacks without agoraphobia; generalized anxiety disorder; and substance abuse disorder (polysubstance, in early remission). (T at 491). She opined that Plaintiff's psychiatric problems did not appear to be significant enough to interfere with his ability to function on a daily basis. (T at 491). Dr. Kerenyi described Plaintiff's prognosis as “guarded.” (T at 492).
2. Dr. D'Ortona
Dr. M. D'Ortono, a State Agency review consultant, completed an assessment in June of 2018. Dr. D'Ortono opined that Plaintiff did not have a severe mental impairment. (T at 112). Dr. Ortono assessed no limitation in Plaintiff's ability to understand, remember, or apply information; mild limitation with respect to interacting with others; no limitation in maintaining concentration, persistence, or pace; and mild limitation with respect to adapting or managing himself. (T at 112).
3. Mr. Behar
Mr. David Behar, LMFT, a mental health therapist, completed a questionnaire in July of 2018. At that time, Mr. Behar had been treating Plaintiff approximately bi-weekly for eight (8) months. (T at 378). He reported diagnoses of borderline intellectual functioning and history of bipolar symptoms. (T at 378). Mr. Behar stated that Plaintiff was not a malingerer. (T at 378). He reported that Plaintiff could not tolerate stress or pressure and had demonstrated extreme agitation and inability to function in therapy sessions. (T at 380). Mr. Behar opined that Plaintiff would decompensate under normal work pressure. (T at 380).
Mr. Behar assessed moderate-to-marked impairment in several areas of functioning, including the ability to make simple work-related decisions, complete a workday without interruptions from psychological symptoms; perform at a consistent pace without rest periods of unreasonable length or frequency; getting along with coworkers or peers without distracting them; and making plans independently. (T at 381). Mr. Behar opined that Plaintiff was likely to be absent from work more than three (3) times per month due to his impairments or treatment. (T at 382).
On March 28, 2019, Mr. Behar provided a letter in lieu of his clinical notes, which he described as handwritten and difficult to read. (T at 383). He described Plaintiff as suffering from “one of the most severe cases of Bipolar Disorder I have encountered in my private practice.” (T at 383). Mr. Behar explained that Plaintiff appeared to be “personable with seemingly good social skills,” but “tend[ed] to collapse mentally and emotionally under a minimal amount of pressure because his executive functioning, memory and mental organization [are] so poor.” (T at 383). Mr. Behar opined that it was “simply not possible” for Plaintiff to work at a job “with any level of pressure or multi-tasking ....” (T at 383).
Mr. Behar completed a second questionnaire in April of 2019. He diagnosed bipolar disorder, mixed severe. (T at 398). Mr. Behar described Plaintiff as stable on medication, but struggling with chronic depression and anxiety, along with some mood lability. (T at 400). Mr. Behar assessed marked limitation in numerous domains of work-related functioning, including remembering locations and work-like procedures; working in coordination with or near others without being distracted by them; completing a workday without interruptions from psychological symptoms; and being aware of hazards and taking appropriate precautions. (T at 401). Mr. Behar opined that Plaintiff was likely to be absent from work more than three (3) times per month due to his impairments or treatment. (T at 402).
4. Dr. Reibel
Dr. Stephen Reibel, a psychiatrist, completed a questionnaire in April of 2019. Dr. Reibel had been treating Plaintiff monthly for seven (7) months. (T at 391). He described Plaintiff as easily overwhelmed, leading to panic symptoms. (T at 393). Dr. Reibel assessed marked limitation in several domains of work-related functioning, including performing activities within a schedule and consistently being punctual; sustaining an ordinary routine without special supervision; making simple work-related decisions; completing a normal workday without interruptions from psychological symptoms; interacting appropriately with the public; responding appropriately to workplace changes; and making plans independently. (T at 394).
5. Dr. Miller
Dr. John Laurence Miller performed a consultative psychiatric evaluation in June of 2019. He described Plaintiff as cooperative, agitated, and anxious, with intact memory, attention, and concentration, and demonstrating fair insight and judgment. (T at 448). Dr. Miller opined that Plaintiff had moderate limitation in his ability to interact with supervisors, coworkers, and the public; sustain concentration and perform at a consistent pace; sustain an ordinary routine and regular attendance; and regulate emotions, control behavior, and maintain well-being. (T at 449). He found that Plaintiff's psychiatric problems appeared to significantly interfere with his ability to function on a daily basis. (T at 449).
Dr. Miller diagnosed unspecified bipolar disorder, agoraphobia with panic attacks; rule out obsessive compulsive disorder; and alcohol use disorder, in remission. (T at 449). He characterized Plaintiff's prognosis as fair. (T at 450).
6. Dr. Kahn
In July of 2019, Dr. Sharon Kahn reviewed the record and answered interrogatories at the request of the ALJ. Dr. Kahn assessed moderate limitation as to several work-related functions, including the ability to make judgments on complex work-related decisions, and respond appropriately to usual work situations and changes in a routine work setting. (T at 477).
7. ALJ's Analysis of the Medical Opinion Evidence
The ALJ found the assessments of the treating providers (Dr. Reibel and Mr. Behar) “persuasive in some parts, but not in others.” (T at 36). Regarding Dr. Miller (one of the consultative examiners), the ALJ noted an internal inconsistency in his assessment regarding the extent of Plaintiff's social impairment, but otherwise found Dr. Miller's opinion persuasive. (T at 36).
The ALJ generally found persuasive the assessment of Dr. Kahn (the medical expert who reviewed the record and answered interrogatories), although the ALJ found Plaintiff more limited with respect to social interaction. (T at 37). The ALJ considered the opinion of Dr. D'Ortona (the State Agency review physician) unpersuasive, as the ALJ concluded that Plaintiff had a severe mental impairment and was moderately limited with respect to most of the mental demands of basic work activity. (T at 37-38). The ALJ found the opinion of Dr. Kerenyi (one of the consultative examiners) persuasive. (T at 38).
This Court recommends that the ALJ's consideration of the medical opinion evidence be revisited on remand. When addressing the persuasiveness of the treating source opinions (provided by Dr. Reibel and Mr. Behar), the ALJ's primary rationale for finding their assessments of moderate-marked limitations not fully persuasive was the fact that they were not supported by or consistent with the treatment notes. (T at 36).
Notably, however, the ALJ failed to account for Mr. Behar's March 2019 letter in which he explained that his treatment notes were handwritten and difficult to read, and in which he offered his clinical impressions of Plaintiff based on a treating relationship that had lasted for nearly a year and a half. (T at 383).
In addition, the ALJ did not provide a sufficient explanation for discounting the most critical limitations identified by the treating sources -namely - Plaintiff's ability to sustain a schedule and maintain attendance under the demands of competitive, remunerative work. Although moderate impairment in the ability to sustain a schedule and maintain attendance can be accommodated by a limitation to unskilled, low stress work, see Cepeda v. Comm'r of Soc. Sec., No. 19-CV-4936 (BCM), 2020 WL 6895256, at *12 (S.D.N.Y. Nov. 24, 2020)(collecting cases), both treating providers found more significant limitation in this domain.
Mr. Behar assessed moderate-to-marked limitation with respect to Plaintiff's ability to complete a workday without interruptions from psychological symptoms and opined that Plaintiff was likely to be absent from work more than three (3) times per month due to his impairments or treatment. (T at 382-83, 401-402). Dr. Reibel reported marked limitation in Plaintiff's ability to sustain an ordinary routine without special supervision and to complete a normal workday without interruptions from psychological symptoms. (T at 394).
Mental health symptoms can wax and wane and many individuals who can be attentive and appropriate in supportive settings (such as treatment appointments/examinations) would experience an exacerbation of their symptoms if they attempted to meet the schedule and attendance demands of sustained work activity. See Estrella v. Berryhill, 925 F.3d 90, 97 (2d Cir. 2019); 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”); Samaru v. Comm'r of Soc. Sec., No. 18-cv-06321(KAM) (LB), 2020 U.S. Dist. LEXIS 100141, at *30 (E.D.N.Y. June 8, 2020)(“The critical differences between activities of daily living and activities in a full time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons ..., and is not held to a minimum standard of performance, as she would be by an employer.”)(quoting Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012)).
The question of whether Plaintiff's mental health symptoms would be exacerbated by the schedule and attendance demands of sustained work activity is precisely the question Plaintiff's treating providers are best suited to answer, as they have a longitudinal experience of his presentation and view of the progression of his symptoms.
When applying the treating physician rule, the Second Circuit recognized the value of treating source opinions when reviewing claims involving mental impairments. See Flynn v. Comm'r of SSA, 729 Fed.Appx. 119, 122 (2d Cir. 2018)(“The treatment provider's perspective would seem all the more important in cases involving mental health, which are not susceptible to clear records such as [x-rays] or MRIs. Rather, they depend almost exclusively on less discretely measurable factors, like what the patient says in consultations.”).
Although the treating physician rule no longer applies, this principle persists, as the opportunity to observe and treat the claimant constitutes important “support” for a medical opinion under the new medical opinion evidence standard. 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).
“As the amended regulations note, ‘[a] medical source may have a better understanding of your impairment(s) if he or she examines you than if the medical source only reviews evidence in your folder.'” Id. (quoting 20 C.F.R. §§ 404.1520c(c)(3)(v), 416.920c(c)(3)(v))); 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).
“Even though ALJs are no longer directed to afford controlling weight to treating source opinions-no matter how well supported and consistent with the record they may be-the regulations still recognize the ‘foundational nature' of the observations of treating sources, and ‘consistency with those observations is a factor in determining the value of any [treating source's] opinion.'” Shawn H. v. Comm'r of Soc. Sec., No. 2:19-CV-113, 2020 WL 3969879, at *6 (D. Vt. July 14, 2020)(quoting Barrett v. Berryhill, 906 F.3d 340, 343 (5th Cir. 2018)).
In sum, the ALJ's finding that Plaintiff could sustain a schedule and maintain attendance within a range of unskilled work, was contrary to the assessment of both treating providers, who assessed an inability to cope with even low stress work. To reach such a conclusion, the ALJ was obliged to provide a sufficient explanation, supported by substantial evidence and consistent with applicable law. This required recognition of the unique opportunity those providers had to observe Plaintiff over time. The ALJ failed to provide such an explanation. Further, in finding the treating source assessments unsupported by treatment notes, the ALJ did not appropriately account for the explanation and evidence provided by Mr. Behar. For these reasons, it is recommended that the medical opinion evidence be re-evaluated on remand.
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).
Here, Plaintiff testified as follows: He lives with his parents. (T at 81). He has difficulty sleeping and suffers from debilitating anxiety. (T at 85-86). He experiences memory problems and difficulty concentrating, but generally remembers to take his medication. (T at 86-87). He sees his therapist and psychologist once a month. (T at 89). He can attend to personal hygiene, although he may neglect it during depressive periods. (T at 89, 97). It is difficult for him to use public transportation due to severe phobia. (T at 90). His social life is minimal. (T at 90). He performs basic chores like cooking and laundry. (T at 92). He has difficulty processing information. (T at 95). He suffers from depressive and manic states. (T at 96).
The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but concluded that his statements concerning the intensity, persistence, and limiting effects of those symptoms were not entirely credible. (T at 35).
The primary reason offered by the ALJ for discounting Plaintiff's credibility was his conclusion that the subjective complaints were not supported by contemporaneous treatment notes. (T at 38). In particular, the ALJ found Plaintiff's credibility undermined by the fact that he did not seek treatment as frequently as might be expected. The ALJ explained that “the lack of treatment notes suggest that [Plaintiff's] impairments were not as severe as he alleged.” (T at 38). The ALJ, however, did not account for the fact that Mr. Behar (the treating therapist) declined to provide his treatment notes on the grounds that they were handwritten and difficult to read. Thus, the absence of treatment notes did not mean there was an absence of treatment. This was addressed in Mr. Behar's March 2019 letter, in which he explained why he was not providing his notes and offered his clinical impressions of Plaintiff based on a treating relationship that had lasted for nearly a year and a half. (T at 383).
Additionally, the ALJ did not address or account for Plaintiff's testimony that his ability to access treatment was limited because he cannot drive and struggles with public transportation, forcing him to rely on his parents to take him to and from appointments. (T at 89-90). “Where a claimant has failed to seek medical care or to follow prescribed treatment, those facts may be relevant to determining the reliability of the claimant's description of her symptoms and condition, but only after considering any reasons for that failure.” Green v. Astrue, No. 06 CIV. 5568 (DLC), 2007 WL 2746893, at *8 (S.D.N.Y. Sept. 17, 2007).
Lastly, the ALJ stated in conclusory fashion that the description of activities of daily living contained in Dr. Miller's consultative examination report “undercut” the claims offered by Plaintiff (and his mother) that he needed assistance with activities of daily living. (T at 38-39). Dr. Miller's report did say that Plaintiff could attend to personal hygiene, cook, prepare food, perform simple household chores, and shop. (T at 449). But Dr. Miller also described a person suffering from daily panic attacks, crying spells, an inability to use public transportation, recurrent manic episodes, obsessive thoughts, memory problems, and avoidance of social situations. (T at 447).
Importantly, a claimant “need not be an invalid to be found disabled” and should not be punished for exerting the effort to attend to basic necessities of life. See Balsamo v. Chater, 142 F.3d 75, 81-82 (2d Cir. 1998). Plaintiff's ability to periodically push beyond his limitations and attend to basic activities within the confines of his home and with the support of his parents does not translate into an ability to perform competitive work on a consistent basis. See Estrella, 925 F.3d at 97; Samaru v. Comm'r of Soc. Sec., No. 18-cv-06321(KAM) (LB), 2020 U.S. Dist. LEXIS 100141, at *30 (E.D.N.Y. June 8, 2020)(“The critical differences between activities of daily living and activities in a full time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons ..., and is not held to a minimum standard of performance, as she would be by an employer.”)(quoting Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012)); 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”).
For the foregoing reasons, this Court recommends that the ALJ's credibility determination should be revisited on remand. (The ALJ's decision to discount the lay witness testimony of Plaintiff's mother, which relied on the same reasons, should likewise be revisited).
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 related to the assessment of the medical opinion evidence, the consideration of Plaintiff's credibility, and the decision to discount the lay witness testimony it is recommended that this case should be remanded for further proceedings.
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 20) should be GRANTED; the Commissioner's Motion for Judgment on the Pleadings (Docket No. 24) should be DENIED; 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).