Opinion
20-CV-8376 (MKV) (RWL)
2021-12-24
Patricia N. TELESCO, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Howard David Olinsky, Olinsky Law Group, Syracuse, NY, for Plaintiff. Joseph Anthony Pantoja, U.S. Attorney's Office, New York, NY, for Defendant.
Howard David Olinsky, Olinsky Law Group, Syracuse, NY, for Plaintiff.
Joseph Anthony Pantoja, U.S. Attorney's Office, New York, NY, for Defendant.
REPORT AND RECOMMENDATION TO HON. MARY KAY VYSKOCIL: SOCIAL SECURITY APPEAL
ROBERT W. LEHRBURGER, United States Magistrate Judge.
Plaintiff Patricia Telesco, represented by counsel, commenced the instant action against Defendant Commissioner (the "Commissioner") of the Social Security Administration (the "Administration"), pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking review of the Commissioner's decision that Telesco is not entitled to Supplemental Security Income benefits ("SSI") for lack of disability. Telesco moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules Of Civil Procedure, seeking an order to remand the case for a further hearing and award attorney's fees under the Equal Access To Justice Act, 28 U.S.C. § 2412. (Dkts. 1, 20,21.) The Commissioner cross-moves for judgment on the pleadings and asks the Court to affirm the Commissioner's decision. (Dkts. 22, 23.) For the reasons explained below, this Court respectfully recommends that Telesco's motion be GRANTED, that the Commissioner's motion be DENIED, and the case be REMANDED.
PROCEDURAL HISTORY
On May 16, 2017 , Ms. Telesco filed a Title II application for a period of disability beginning on July 25, 2012. (R. 13.) Ms. Telesco claimed disability due to stage 1 brain cancer (astrocytoma in the brain stem), T-11/T12 spinal injury, low blood pressure, migraines, breathing difficulty, laryngospasms, depression, balance difficulty, and dizziness. (R. 61-62, 82, 193.) On August 9, 2017, the Administration denied Ms. Telesco's claim. (R. 13.) Soon thereafter, Ms. Telesco filed a written request for a hearing. (R. 13, 84.)
There is some discrepancy in the Record as to the exact date Ms. Telesco filed her application for SSI. Documents concerning appeals decisions cite May 16, 2017 as the application date. (R. 13, 15, 26, 61. 105.) In contrast, the Plaintiff cites March 23, 2018 as the application date in her motion for judgment on the pleadings. (Dkt. 21.) Based on the totality of the Record, the Court considers May 16, 2017 as the application date.
"R." refers to the certified administrative record (Dkt. 16).
On April 30, 2019, Ms. Telesco, represented by counsel, appeared and testified at a video hearing before Administrative Law Judge ("ALJ") Vincent Cascio. (R. 32.) A vocational expert ("VE"), Esperanza Distefano, also appeared and testified. (R. 32.) On May 22, 2019, the ALJ issued a decision finding Ms. Telesco not disabled and capable of performing a range of light work. (R. 16, 19.) On August 7, 2020, the Appeals Council denied Ms. Telesco's request for review of the ALJ's decision, and the ALJ's decision became the final determination of the Commissioner. (R. 1-6.)
Ms. Telesco filed her Complaint in this action on October 7, 2020, seeking district court review pursuant to 42 U.S.C. § 405(g). (Dkt. 1.) On October 9, 2020, the Honorable Mary Kay Vyskocil, U.S.D.J., referred this matter to the undersigned for report and recommendation. (Dkt. 7.)
APPLICABLE LAW
A. Standard Of Review
A United States District Court may affirm, modify, or reverse (with or without remand) a final decision of the Commissioner. 42 U.S.C. § 405(g) ; Skrodzki v. Commissioner Of Social Security Administration , 693 F. App'x 29, 29 (2d Cir. 2017) (summary order). The inquiry is "whether the correct legal standards were applied and whether substantial evidence supports the decision." Butts v. Barnhart , 388 F.3d 377, 384 (2d Cir. 2004) ; see also Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (same).
" ‘Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.’ " Douglass v. Astrue , 496 F. App'x 154, 156 (2d Cir. 2012) (quoting Kohler v. Astrue , 546 F.3d 260, 265 (2d Cir. 2008) (remanding for noncompliance with regulations)). Courts review de novo whether the correct legal principles were applied and whether the legal conclusions made by the ALJ were based on those principles. See Johnson v. Bowen , 817 F.2d 983, 986 (2d Cir. 1987) (reversing where the court could not "ascertain whether [the ALJ] applied the correct legal principles ... in assessing [plaintiff's] eligibility for disability benefits"); Townley v. Heckler , 748 F.2d 109, 112 (2d Cir. 1984) (reversing where the Commissioner's decision "was not in conformity with the regulations promulgated under the Social Security Act"); Thomas v. Astrue , 674 F. Supp.2d 507, 515, 520 (S.D.N.Y. 2009) (reversing for legal error after de novo consideration).
If the reviewing court is satisfied that the ALJ applied the correct legal standards, then the court must " ‘conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision.’ " Brault v. Social Security Administration, Commissioner , 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009) ). Substantial evidence is defined as " ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Schaal v. Apfel , 134 F.3d 496, 501 (2d Cir. 1998) (quoting Richardson v. Perales , 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) ); see also Biestek v. Berryhill , ––– U.S. ––––, 139 S. Ct. 1148, 1154, 203 L.Ed.2d 504 (2019) (reaffirming same standard). "The substantial evidence standard means once an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise ." Brault , 683 F.3d at 448 (internal quotation marks omitted) (emphasis in original); see also 42 U.S.C. § 405(g) ("findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive").
To be supported by substantial evidence, the ALJ's decision must be based on consideration of "all evidence available in [the claimant]’s case record." 42 U.S.C. § 423(d)(5)(B). The Act requires the ALJ to set forth "a discussion of the evidence" and the "reasons upon which [the decision] is based." 42 U.S.C. § 405(b)(1). While the ALJ's decision need not "mention[ ] every item of testimony presented," Mongeur v. Heckler , 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam), 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. Commissioner Of Social Security , 557 F.3d 79, 82-84 (2d Cir. 2009) (mischaracterizing evidence); Kohler , 546 F.3d at 268-69 (overlooking and mischaracterizing evidence); Ruiz v. Barnhart , No. 01-CV-1120, 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring evidence).
Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Rutherford v. Schweiker , 685 F.2d 60, 62 (2d Cir. 1982). The court must afford the Commissioner's determination considerable deference and "may not substitute ‘its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.’ " Jones v. Sullivan , 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary Of Health And Human Services , 733 F.2d 1037, 1041 (2d Cir. 1984) ); Dunston v. Commissioner of Social Security, No. 14-CV-3859, 2015 WL 54169, at *4 (S.D.N.Y. Jan. 5, 2015) (same) (quoting Jones , 949 F.2d at 59 ), R. & R. adopted , 2015 WL 1514837 (S.D.N.Y. April 2, 2015). Accordingly, if a court finds that there is substantial evidence supporting the Commissioner's decision, the court must uphold the decision, even if there is also substantial evidence for the claimant's position. Genier v. Astrue , 606 F.3d 46, 49 (2d Cir. 2010). The court, however, will not defer to the Commissioner's determination if it is "the product of legal error." Dunston , 2015 WL 54169 at *4 (internal quotation marks omitted) (citing, inter alia , Douglass , 496 F. App'x at 156 ; Tejada v. Apfel , 167 F.3d 770, 773 (2d Cir. 1999) ).
B. Legal Principles Applicable To Disability Determinations
Under the Act, a person meeting certain requirements and considered to have a "disability" is entitled to disability benefits. 42 U.S.C. § 423(a)(1). The Act defines disability as an "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). A claimant's impairments must be "of such severity that he 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).
To determine whether an individual is disabled and therefore entitled to disability benefits, the Commissioner conducts a five-step inquiry. 20 C.F.R. § 416.920. First, the Commissioner must determine whether the claimant is currently engaged in any substantial gainful activity. 20 C.F.R. § 416.920(4)(i), (b). If so, the claimant is not eligible for benefits and the inquiry ceases.
If the claimant is not engaged in any such activity, the Commissioner proceeds to the second step and must determine whether the claimant has a "severe impairment," which is an impairment or combination of impairments that significantly limits the claimant's ability to perform basic work activities. 20 C.F.R. § 416.920(4)(ii)(c). If the claimant does not have an impairment or combination of impairments that are "severe," the claimant is not entitled to benefits and the inquiry ends.
If the claimant has a severe impairment or combination of impairments, the Commissioner continues to step three and must determine whether the impairment or combinations of impairments is, or medically equals, one of those included in the "Listings" of the regulations contained at 20 C.F.R. Part 404, Subpart P, Appendix 1. If the claimant's impairment or impairments meet or medically equal one of those listings, the Commissioner will presume the claimant to be disabled, and the claimant will be eligible for benefits. 20 C.F.R. § 416.920(4)(iii)(d).
If the claimant does not meet the criteria for being presumed disabled, the Commissioner continues to step four and must assess the claimant's residual functional capacity ("RFC"), which is the claimant's ability to perform physical and mental work activities on a sustained basis despite his or her impairments. The Commissioner then determines whether the claimant possesses the RFC to perform the claimant's past work. 20 C.F.R. § 416.920(4)(iv), (f), (h). If so, the claimant is not eligible for benefits and the inquiry stops.
If the claimant is not capable of performing prior work, the Commissioner must continue to step five and determine whether the claimant is capable of performing other available work. 20 C.F.R. § 416.920(4)(v), (g), (h). If the claimant, as limited by her RFC, can perform other available work, the claimant is not entitled to benefits. 20 C.F.R. § 416.920(a)(4)(iv), (v). The claimant bears the burden of proof for the first four steps. Selian v. Astrue , 708 F.3d 409, 418 (2d Cir. 2013). Once the claimant has established that she is unable to perform her past work, however, the Commissioner bears the burden of showing at the fifth step that "there is other gainful work in the national economy which the claimant could perform." Balsamo v. Chater , 142 F.3d 75, 80 (2d Cir. 1998) (internal quotation marks omitted).
C. Evaluation of Medical Opinion Evidence
ALJs must consider medical opinion evidence of record. Rodriguez v. Colvin , No. 12-CV-3931, 2014 WL 5038410, at *17 (S.D.N.Y. Sept. 29, 2014). Until recently, regulations required application of the so-called "treating physician rule" pursuant to which the opinion of a claimant's treating physician presumptively was entitled to "controlling weight." 20 C.F.R. § 416.927(c)(2) ; see also Burgess v. Astrue , 537 F.3d 117, 128 (2d Cir. 2008). For claims filed prior to March 27, 2017, if the ALJ decides not to give controlling weight to a treating physician's opinion, the ALJ must determine how much weight, if any, to give that opinion. Estrella v. Berryhill , 925 F.3d 90, 96 (2d Cir. 2019). In doing so, the ALJ must "explicitly consider" the following, non-exclusive " Burgess factors": "(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist." Selian , 708 F.3d at 418 (citing Burgess , 537 F.3d at 129 (citing 20 C.F.R. § 404.1527(c)(2) )). While failure to explicitly apply the Burgess factors is a procedural error, a reviewing court will not reverse the Commissioner's decision when the Commissioner has given "good reasons" for its weight assignment. Estrella , 925 F.3d at 96. With respect to assigning weight to the opinions of non-treating physicians, an ALJ applying the earlier regulations must consider the same factors evaluated when the ALJ does not give controlling weight to a treating physician. 20 C.F.R. § 416.927(c).
For claims filed on or after March 27, 2017, the new regulations promulgated in 20 C.F.R. § 416.920c apply. Under the new regulations, a treating doctor's opinion is no longer entitled to a presumption of controlling weight. Instead, all medical opinions must be assessed under the same standard of supportability and consistency with no presumption that one opinion carries more weight than another. 20 C.F.R. § 416.920c(a) ("We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) ... including those from your medical sources").
The new regulations give most importance to two of the same factors previously considered to determine whether a treating doctor's opinion should be given controlling weight, i.e., the extent to which a treating physician's opinion is supported by well-accepted medical evidence and not inconsistent with the rest of the record. 20 C.F.R. § 416.920c(a) ("The most important factors we consider when we evaluate the persuasiveness of medical opinions ... are supportability ... and consistency"). In most instances, the ALJ may, but is not required to, discuss the other factors previously required to assess medical opinion evidence (i.e., relationship with the claimant, specialization, and other relevant factors). 20 C.F.R. § 416.920c(b)(2). The ALJ must consider those additional factors, however, if there are "two or more medical opinions or prior administrative medical findings about the same issue [that] are both equally well-supported ... and consistent with the record ... but are not exactly the same, we will articulate how we considered the other most persuasive factors...." 20 C.F.R. § 416.920c(b)(3).
More specifically, if medical opinions on the same issue are equally well-supported and consistent with the record but are not identical, the ALJ must "articulate how [he] considered the other most persuasive factors." 20 C.F.R. § 416.920c(b)(3). Of the remaining factors, the third is the relationship with the claimant, for which the ALJ must consider the (1) length of the treatment relationship, (2) frequency of examinations, (3) purpose of the treatment relationship, (4) extent of the treatment relationship, and (5) examining relationship. The fourth factor – specialization – requires the ALJ to account for whether the medical opinion is provided by a specialist that has expertise in the area related to the medical issue. Lastly, the fifth factor is a catchall, which accounts for "other factors that tend to support or contradict a medical opinion or prior administrative finding." That includes, but is not limited to, evidence showing a medical source has familiarity with other evidence in the claim or an understanding of [the SSA's] disability program's policies and evidentiary requirements." 20 C.F.R. § 416.920c(c)(5).
An ALJ must not only consider supportability and consistency in evaluating medical source opinions but also must explain the analysis of those factors in the decision. 20 C.F.R. § 416.920c(b)(2) ; Vellone v. Saul , No. 20-CV-261, 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021), R. & R. adopted , 2021 WL 2801138 (S.D.N.Y. July 6, 2021) ("in cases where the new regulations apply, an ALJ must explain his/her approach with respect to the first two factors when considering a medical opinion") (emphasis in original). As noted in the Administration's revisions to the regulations, "the articulation requirements in [the] final rules" are intended to "allow a ... reviewing court to trace the path of an adjudicator's reasoning ...." Revisions To Rules Regarding The Evaluation Of Medical Evidence, 82 Fed. Reg. 5844, 5858 (Jan. 18, 2017) ; see also Amber v. Saul , No. 20-CV-490, 2021 WL 2076219, at *4 (N.D.N.Y. Feb. 24, 2021) ("Although the new regulations eliminate the perceived hierarchy of medical sources ... the ALJ must still ‘articulate how [he or she] considered the medical opinions’ and ‘how persuasive [he or she] find[s] all of the medical opinions") (alterations in original) (quoting 20 C.F.R. § 416.920c(a), (b)(1) ).
Under the previous regulations, an ALJ's failure to consider the factors prescribed by the treating physician rule was grounds for remand. Similarly, under the current regulations, an ALJ's failure to properly consider and apply the requisite factors is grounds for remand. See, e.g. , Rivera v. Commissioner Of Social Security , No. 19-CV-4630, 2020 WL 8167136, at *22 (S.D.N.Y. Dec. 30, 2020), R. & R. adopted , 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021) (remanding so that ALJ may "reevaluate the persuasiveness assigned to the opinion evidence of record and explicitly discuss both the supportability and the consistency of the consulting examiner's opinions"); Andrew G. v. Commissioner Of Social Security , No. 19-CV-942, 2020 WL 5848776, at *6-9 (N.D.N.Y. Oct. 1, 2020) (remanding due to ALJ's failure to adequately explain the supportability or consistency factors that led her to her decision). As Ms. Telesco's application post-dates March 27, 2017, the Court applies the revised regulations applicable to evaluation of medical opinions.
THE FACTUAL AND MEDICAL RECORD
A. Personal History
Ms. Telesco was born on February 22, 1969 and has a high school education. (R. 25.) She was diagnosed with a brain tumor in July 2012, which she claims severely impairs her physical abilities as well as her focus and concentration and prevents her from maintaining gainful employment. (R. 41-43.)
Ms. Telesco has an adult son and is divorced. (R. 39.) In June 2017 she was living out of her mother's car, but as of April 2019 she lives in her mother's apartment, with her mother who is occasionally present. (R. 39, 45, 210.) She can prepare simple meals for herself but cannot cook on the stove. (R. 45, 212.) Ms. Telesco testified that she needs reminders to attend to her personal hygiene, that she gets dizzy in the shower, and that she has difficulty blow drying her hair. (R. 18, 211.) She takes necessary medications three times a day. (R. 45.) Prior to living at her mother's apartment full time, she visited her mother daily to receive assistance and reminders to take her medications. (R. 210.) Ms. Telesco testified that she used to be very social but no longer has any social life. (R. 44.) She also claims that her brain tumor and inability to concentrate and complete simple tasks such as filing papers are the reason for her divorce. (R. 238.)
B. Work History
Ms. Telesco's work experience, aside from raising her son for nineteen years, consists of having worked on her family's livestock farm and a partially unpaid role as a dairy farmer. (R. 36, 40, 74, 220.) On the farm, she fed the livestock, ordered feed and materials for the livestock, sold cattle to auctions, and performed general farm and livestock maintenance. (R. 41.) She typically worked from 6:00 a.m. to 7:00 p.m. (R. 40.) At one point, she received $5,000 a year in compensation, but the majority of her work on the farm was not compensated. (R. 203.) Certain pages in the record reflect Ms. Telesco's reporting that she worked as a livestock farm worker from January 2013 to January 2015. (R. 74, 202.) Medical records suggest, however, that Ms. Telesco started and stopped working on the farm several times between 2012 and 2015. (R. 271, 277, 283, 289.) Ms. Telesco ultimately stopped working altogether in January 2015 because she "couldn't pick up the 50-pound bags anymore" and "it was just getting too much" due to her pain and difficulty concentrating. (R. 41, 74.)
C. Medical History
In April 2010, Ms. Telesco was involved in a severe motor vehicle accident that resulted in a significant spinal injury. (R. 301, 322.) Following the accident, she began to have intermittent, sudden episodes of feelings of choking. (R. 298, 391.) In September 2010, she had surgery on her thoracic spine, which included implanting screws and rods in her back. (R. 298, 328.)
Ms. Telesco initially presented to NYU Langone Health System ("NYU Langone") in April 2010 with episodic spontaneous laryngospasms. (R. 321, 494.) The episodic laryngospasms would occur spontaneously but were also triggered by laughter, coughing, clearing her throat, or drinking cold food and beverages. (R. 265, 277, 298, 321.) She explored multiple medical opinions and was treated unsuccessfully for multiple diagnoses including gastroesophageal reflux disease ("GERD") and asthma. (R. 265, 298, 277.) Ms. Telesco's symptoms and choking episodes worsened in severity and frequency over the next two years to the point that she was nearly unable to eat. (R. 265, 298.)
In February 2012, Ms. Telesco was evaluated by a dysphagia expert who postulated that the disorder was neurological. (R. 298.) In June 2012, an MRI of the cervical spine revealed a mass at the base of her brain. (R. 265, 298, 321, 494.) The following month, Ms. Telesco underwent a biopsy of the mass which revealed stage 1 brain cancer. (R. 321, 357 494.) Due to the location, infiltrative nature, and expected slow growth of the tumor, doctors advised symptomatic control over tumor-targeted therapy such as surgery, radiation, or chemotherapy. (R. 265, 321.) Ms. Telesco has been monitored expectantly, and her tumor is consistently monitored with serial MRIs. (R. 296, 357, 494.) Between October 2012 and April 2017, Ms. Telesco received approximately eight MRIs, each of which indicated that the tumor was stable in size and quality with no new abnormalities as compared to the original June 2012 MRI. (R. 285, 279, 273, 267, 291, 324, 357.)
The biopsy is also referred to in the record as a craniotomy. (See R. 46, 328, 331.)
In February 2015, Ms. Telesco developed pain in her upper abdomen and underwent an upper endoscopy. (R. 265.) When she was informed that the abdominal pain was due to her tumor, she changed her diet which led to a 10-12 pound weight loss by May 2015. (R. 265.)
In March 2016, Ms. Telesco underwent an intervertebral disc, T12-L1, discectomy which revealed fragments of fibroconnective tissue, bone and disc material with degenerative change. (R. 310.) She was also diagnosed with thoracic disc herniation. (R. 310.) In May 2016, she had a spinal cord biopsy, which again confirmed her diagnosis of pilocytic astrocytoma. (R. 314.)
The record provides progress notes from five separate visits Ms. Telesco had with Dr. Ralph Gargiulo at Community Primary Care ("CPC") between February 2017 and June 2017. (R. 327-41.) These visits were routine doctor's appointments for issues such as follow up blood tests (R. 328), Lyme disease (R. 331), a skin rash (R. 334.), a potential spider bite (R. 336), and a cough. (R. 338-41.) At each visit, Dr. Ralph Gargiulo noted no health abnormalities and that Ms. Telesco was alert, pleasant, and in no acute distress. (R. 328-41.)
D. Mental Health History
Ms. Telesco claims that she has experienced depression and anxiety since she was diagnosed with her inoperable brain tumor in 2012. (R. 359, 369.) While there are reports throughout the record of Ms. Telesco experiencing anxiety and depression, she was not treated for either of these conditions until 2018. (R. 43, 503, 506.) In June 2018, she began going to Hudson Valley Mental Health Clinic ("Hudson Valley"). (R. 42, 452.) At Hudson Valley she saw a licensed mental health counselor, Carol Philhower, L.M.H.C., as well as a psychiatrist, Dr. Figman. (R. 43.)
The record indicates that Ms. Telesco's depression and anxiety was not the focus of treatment or doctor's visits until she began treatment at Hudson Valley in June 2018. Treatment notes from prior to Hudson Valley were not from mental healthcare professionals and are inconsistent. For example, in December 2013, Dr. Lisa Deangelis, a neuro-oncologist, stated that "the most important thing is for [Ms. Telesco] to get some psychological support" because one of her main issues is "likely depression." (R. 279-80.) In August 2014, Dr. Deangelis noted "no depression" in Ms. Telesco's progress notes but just a page later again noted that one of Ms. Telesco's main issues is "likely depression." (R. 272-73.) In May 2015, Dr. Eileen Tiernan, a neuro-oncologist, noted that Ms. Telesco did not have hallucinations, depression, or anxiety but, like Dr. Deangelis, stated on the following page that she "likely has depression." (R. 266-67.) In February 2017, Dr. Ralph A. Gargiulo, who Ms. Telesco visited because she had a cold and needed a recommendation for a dermatologist, responded "no" in response to depression screening questions. (R. 338.) In November 2018, Dr. Sylvia C. Kurz, a neuro-oncologist noted that Ms. Telesco was struggling with a bout of depression and increased anxiety and that she would "discuss with Dr. Figman (psychiatrist)". (R. 506.)
At the beginning of Ms. Telesco's treatment at Hudson Valley in June 2018, Philhower conducted a mental status assessment. (R. 452.) Philhower noted that Ms. Telesco's affect and speech were normal; that her cognition was normal with respect to attention, memory, and orientation to person, place and time; and that her insight and judgment were "good." (R. 453-4.) On the same day, Philhower conducted a diagnostic review during which Ms. Telesco reported that she had been depressed since she was diagnosed with her tumor. (R. 456.) Philhower listed Ms. Telesco's diagnoses as depressive disorder and anxiety. (R. 456.) At the same time, Philhower checked "no" next to a question asking if the patient had "limitations or require[d] assistance which affect[ed] their functioning." (R. 460.)
On July 25, 2018, Dr. Figman conducted a psychiatric assessment of Ms. Telesco. (R. 466.) Dr. Figman observed that Ms. Telesco was "calm and composed until she tqalks [sic] about her ‘sadness’ at which point she becomes tearful." (R. 466.) Dr. Figman affirmed the diagnosis of "depression and anxiety due to being diagnosed with an inoperable brain tumor" and prescribed her Prozac. (R. 468-69.)
The record also includes two treatment plans (for date ranges August 10, 2018 – November 8, 2018 and November 9, 2018 – February 7, 2019) from Hudson Valley that articulate the objectives of Ms. Telesco's individual therapy sessions. (R. 471, 476.) The two treatment plans list Ms. Telesco's "problem" as "depressive disorder – depressed or irritable mood and diminished interest in activities" and one of the "goals" as "reduc[ing] overall frequency, intensity, and duration of the symptoms that interferes with daily functioning. (R. 471, 480.) Progress notes indicate that Ms. Telesco was treated by Philhower approximately every other week and by Dr. Figman on a monthly basis from August 2018 through March 2019. (R. 474, 478, 482.) The record does not include treatment notes from individual sessions.
E. Medications
Ms. Telesco's symptoms and breakthrough laryngospasms have been managed and improved with the prescribed treatment of Gabapentin and Valium since September 2012. (R. 283, 301.) She has consistently taken these medications, and her medical reports state that these medications help control the laryngospasms. (R. 279, 283, 493.) In August 2014, Ms. Telesco began taking Pantoprazole for acid reflux. (R. 271.) In early 2018, she was prescribed Prozac and Lorazepam (Ativan ) for anxiety by Dr. Figman. (R. 43, 503, 506.) Ms. Telesco reported the following side effects from Diazepam : "tired can't think;" Gabapentin : "tired blurriness;" and none from Pantoprazole. (R. 236.)
Although Ms. Telesco's laryngospasms are largely controlled by medication, she sometimes has mild recurrences that require her to be very deliberate and methodical when eating. (R. 265, 277.)
F. Opinion Evidence
There are six relevant sources of medical opinions regarding Ms. Telesco's physical and mental ailments and abilities. The opinions come from two non-examining consultative doctors, two examining consultative doctors, and one doctor and one therapist who treated Ms. Telesco.
1. Dr. A. Auerbach – Non-Examining State Agency Medical Consultant
It is somewhat unclear to the Court which opinions contained in Exhibit 2A belong to Dr. Auerbach or Dr. Walker as the two opinions are contained in the same exhibit and the two doctors’ signatures appear multiple times throughout the document. (R. 61-75.) Given that Dr. Walker was the state’ psychological consultant and Dr. Auerbach was the state's medical consultant, the Court assumes that the opinions relating to Ms. Telesco's physical residual functional capacity were produced by Dr. Auerbach and those relating to Ms. Telesco's mental residual functional capacity were produced by Dr. Walker.
As part of the Administration's review of Ms. Telesco's claims, Dr. A. Auerbach reviewed Ms. Telesco's medical records. On July 31, 2017, Dr. Auerbach opined that Ms. Telesco had exertional limitations but could occasionally lift twenty pounds and ten pounds frequently; occasionally climb ramps, stairs, ladders, ropes and scaffolds; occasionally balance, stoop, crouch, crawl, kneel; and should avoid concentrated exposure to hazards. (R. 69-70.) Dr. Auerbach concluded that, based on the evidence of the record, Ms. Telesco's medical impairments could have reasonably been expected to produce the alleged symptoms, but her statements concerning the intensity, persistence and limiting effects of her symptoms are not consistent with the evidence of the record. (R. 68.)
2. Dr. C. Walker – Non-Examining State Agency Psychological Consultant
In July 2017, Dr. Walker opined that Ms. Telesco's inoperable tumor was affecting her cognitive functioning and that she endorsed many depression symptoms. Dr. Walker stated that Ms. Telesco had moderate limitations in the following categories: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintain pace; and (4) adapting or managing oneself. (R. 67.) Despite this, Dr. Walker concluded that Ms. Telesco had intact concentration, mildly impaired memory, and was able to maintain adequate attention and concentration to complete work-like procedures and sustain a routine with moderate complexity. (R. 73.) He found that Ms. Telesco's ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods was moderately limited. (R. 72.) But Dr. Walker also found that Ms. Telesco could relate and respond in an appropriate manner, could cope with basic changes, and could make routine decisions. (R. 73.)
3. Dr. Lauren Stack, Ph.D. – Consultative Examining Psychologist
On July 20, 2017, Dr. Lauren Stack examined Ms. Telesco. (R. 368-72.) Dr. Stack recounted that Ms. Telesco reported difficultly falling asleep and that she has struggled with depression, anxiety, and panic since she was diagnosed with an inoperable brain tumor in 2012. (R. 369.) Ms. Telesco reported that her symptoms of depression include dysphoric mood, crying spells, hopelessness, loss of usual interested, irritability, fatigue, concentration difficulties and social withdrawal. (R. 369.) Ms. Telesco expressed that her anxiety manifests itself through excessive apprehension and worry, irritability, restlessness, and muscle tension. (R. 369.) Dr. Stack noted that Ms. Telesco's cognitive symptoms include short-term memory deficits, concentration difficulties, word finding deficits, organization difficulties, and problems reading. (R. 369.)
Dr. Stack remarked that Ms. Telesco's demeanor was cooperative; she was able to do elementary math problems; and her recent and remote memory skills were mildly impaired due to cognitive deficits secondary to her brain tumor. (R. 370.) Dr. Stack found no limitation in Ms. Telesco's ability to understand, remember, or apply simple directions or instructions. (R. 371.) At the same time, however, Dr. Stack opined that Ms. Telesco has mild limitation in her ability to use reason and judgement, make work-related decisions, and have awareness of normal hazards, and that she has moderate limitation in her ability to interact adequately with supervisors, coworkers, and the public; sustain concentration; sustain an ordinary routine and regular attendance at work; and regulate emotions, control behavior, and maintain well-being. (R. 371.) Dr. Stack noted that these difficulties are caused by cognitive deficits secondary to the brain tumor and symptoms of depression, anxiety, and panic. Dr. Stack also stated that the results of her examination appeared to be consistent with psychiatric and cognitive problems that may significantly interfere with Ms. Telesco's ability to function on a daily basis. (R.371.) Dr. Stack stated that the duration of Ms. Telesco's impairment would last more than one year and recommended that Ms. Telesco seek individual supportive psychological therapy to help her deal with the diagnosis with which she is faced. (R. 372.)
4. Dr. John Caruso, M.D. – Consultative Examining Internist
On July 20, 2017, Dr. John Caruso conducted an internal medicine examination of Ms. Telesco. (R. 359.) Dr. Caruso noted that Ms. Telesco had back surgery in 2010 and as a result has trouble twisting her back. (R. 359.) Ms. Telesco has suffered with the following since her pilocytic astrocytoma diagnosis in 2012: choking, depression, dizziness, history of falling, blurry vision, difficulty concentrating and focusing, and difficult breathing. (R. 360.) Ms. Telesco described her back pain as a "punching like, dead-type of pain 10/10 on a bad day, 2/10 on a good day," which is exacerbated by any type of weight bearing or activity. (R. 360.) Ms. Telesco also reported that since 2012, she has had at least five seizures. Dr. Caruso incorrectly states that Ms. Telesco had a craniotomy to remove the brain tumor and that the "tumor apparently has not recurred." (R. 361.) The record is definitive that the tumor still exists, is inoperable, and was not removed. (36, 73, 198, 328, 334, 336 368, 456.)
Dr. Caruso provided the following opinion evidence: Ms. Telesco appeared to be in no acute distress, and was able to walk on her heels and toes without difficulty, perform a full squat with assistance, and rise from a chair without difficulty. (R. 362.) Dr. Caruso concluded that, considering her history of depression and seizures, Ms. Telesco is stable. (R. 364.) Ms. Telesco had no limitations with her vision or squatting. (R. 364.) She demonstrated mild limitations with bending or twisting and mild to moderate limitations with kneeling in terms of overall strength, and overall range of motion, but she did not demonstrate any significant limitations. (R. 364.)
5. Dr. Deborah Gruber – Ms. Telesco's Treating Neuro-Oncologist
On June 15, 2017, Dr. Deborah Gruber evaluated Ms. Telesco following a request by the New York State Office of Temporary and Disability Assistance. (R. 344.) Dr. Gruber treated Ms. Telesco between March 2016 – April 2017. (R. 321-26, 346.) Dr. Gruber affirmed Ms. Telesco's diagnosis of pilocytic astrocytoma coupled with episodic laryngospasm, noting that it is a lifetime condition. (R. 346.) Dr. Gruber reported that Ms. Telesco's cranial nerves and deep tendon reflexes were normal as were her motor abilities. (R. 346.) Dr. Gruber checked "no" next to the question asking whether Ms. Telesco's mental status had any notable abnormalities such as emotional disorders, disorientation, or memory loss. (R. 347.) Dr. Gruber indicated that Ms. Telesco was limited in her ability to lift and carry (but did not specify how much she could lift and carry), but had no limitation standing, walking, sitting, pushing, or pulling. (R. 351.)
6. Carol Philhower – Ms. Telesco's Treating Mental Health Counselor
On April 19, 2019 Ms. Telesco's only treating mental healthcare professional, Philhower, provided a functional capacity assessment. (R. 580-83.) Phillhower's 2019 evaluation differs from her June 2018 psychosocial intake evaluation nine months earlier in which she indicated that Ms. Telesco did not have limitations or require assistance which affected her functioning. (R. 460.)
In her 2019 opinion, Philhower stated that Ms. Telesco suffers from acute depression and anxiety. Philhower noted that Ms. Telesco's anxiety medication, Lorazepam, may affect her ability to function with clarity. (R. 580.) Philhower identified Ms. Telesco as having numerous signs and symptoms: quantitative deficits in communication and social interaction; depressed mood; diminished interest in almost all activities; sleep disturbance; decreased energy; difficulty concentrating or thinking; panic attacks followed by a persistent concern or worry; disproportionate fear or anxiety about at least two different situations; involuntary, time consuming preoccupation with intensive unwanted thought; irritability; preoccupation with having or acquiring a serious illness without significant symptoms present; detachment from social relationships; easily fatigued; appetite disturbance with change in weight. (R. 581.)
Philhower concluded that Ms. Telesco's impairments would have an extreme limitation on (1) remembering information; (2) concentrating; (3) adapting in a workplace; and (4) managing oneself in a workplace, and they would have a marked limitation on her ability to (1) understand information; (2) apply information; (3) interact with others; (4) persistence and maintaining pace. (582.) Philhower checked the box indicating that Ms. Telesco "relies on ongoing medical treatment, mental health therapy, psychosocial support, or a highly structured setting to diminish the symptoms and sign of his or her mental disorder." (R. 583.)
G. Vocational Expert Testimony
At the hearing, the ALJ asked the VE to consider whether there were any jobs in the national economy that an individual of Ms. Telesco's age, education, prior work history, and RFC could perform. (R. 50-53.) The VE testified that such an individual could perform the jobs of marker, photocopy machine operator, electrical equipment assembler, document preparer, toy stuffer, and table worker. (R. 50-52.) The ALJ asked the VE whether there were any jobs for an individual that had to be off task 20 percent of the time. (R. 53.) The VE testified that an individual who needed to be off task 20 percent of the time would have a difficult time maintaining employment because most employers will tolerate only 10 percent off task time. (R. 53.)
H. The ALJ's Decision
ALJ Cascio issued his decision on May 22, 2019, following the requisite five-step analysis. (R. 10-26.) He found that Ms. Telesco had not been engaged in substantial gainful activity since the application date of May 16, 2017. He concluded that Ms. Telesco had nine severe impairments – grade 1 pilocytic astrocytoma at the cervicomedullary junction causing laryngospasm, seizures, vertigo, fatigue, status post spine surgery, major depressive disorder, generalized anxiety disorder, panic disorder, and unspecified neurocognitive disorder secondary to brain tumor – none of which, alone or in combination, met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (R. 15-16.) The ALJ also found non-severe impairments, including GERD, prediabetes, and asthma, that would have no more than a minimal effect on her ability to meet the basic demands of work activity. (R. 15.) The ALJ also acknowledged that Ms. Telesco claimed that she suffered from migraines and blurry vision, but he concluded that no acceptable medical source diagnosed her with either of those impairments and thus neither were medically determinable. (R. 16.)
The ALJ determined that Ms. Telesco's physical impairments, considered singly and in combination, did not meet the criteria of any impairment listed in 13.13, and her mental impairments, considered singly and in combination did not meet or medically equal the criteria of listings 12.02, 12.04, or 12.06. (R. 16-17.)
Ms. Telesco challenged the determination that she did not meet Listing 12.02, 12.04, and 12.06 in her appeal to the Appeals Council. She did not raise this argument in her brief to this Court, therefore this argument will not be addressed. (See R. 258-61, Pl. Mem.) "Pl. Mem." refers to Plaintiff's Memorandum of Law (Dkt. 21.)
The ALJ found that Ms. Telesco had a moderate limitation in all four categories. In reaching that conclusion, the ALJ cited to treatment notes indicating that Ms. Telesco's cognitive functioning is intact with little evidence of significant learning, memory, or generalized information processing deficits; she has a few friends, a cordial relationship with her ex-husband, and a good relationship with immediate family members; she has a coherent, goal directed thought process with no evidence of hallucinations, delusions, or paranoia; and there are no references to any significant problems with personal care or hygiene. (R. 17-18.) Because Ms. Telesco's mental impairments do not cause at least two "marked" limitations or one "extreme" limitation, the ALJ held that the "paragraph B" criteria of the Listings were not satisfied. (R. 18.)
The ALJ then determined that, based on the entirety of the record, Ms. Telesco had the RFC to perform light work as she can understand, remember, and carry out simple, routine repetitive work-related tasks with only occasional contact with the public, supervisors, and co-workers. (R. 19.)
In reaching his decision, ALJ Cascio assessed the medical opinions in the following ways. He found Dr. Auerbach's opinion persuasive because his opinions were supported by physical examinations performed by Ms. Telesco's primary care providers and specialists as well as the claimant's symptoms. (R. 23.) The ALJ further noted that Dr. Auerbach provided extensive rationale to support his findings, generally consistent with the clinical and diagnostic abnormalities of record and Ms. Telesco's reported activities of daily living. (R. 23.) Lastly, the ALJ stated that the State agency consultants, such as Dr. Auerbach, are experts in the Social Security disability programs and such opinions warrant close consideration. (R. 23.)
ALJ Cascio found Dr. Walker's opinion persuasive because he deemed it consistent with and supported by medical records he reviewed and the opinion evidence provided by Dr. Stack. Dr. Walker opined that Ms. Telesco had moderate limitations in mental functioning. The ALJ found that Dr. Walker's assessment of Ms. Telesco having moderate limitations in understanding and remembering was consistent with Ms. Telesco's activities of daily living, hearing testimony, and mental status examinations. As with Dr. Auerbach, the ALJ remarked that Dr. Walker is a State agency psychological consultant who is familiar with and has an understanding of the Social Security Disability program. (R. 24-25.)
The ALJ found Dr. Gruber's opinion persuasive because her opinion was "supported by and consistent with her medical records in file notes, repeat MRI studies showing a relatively stable tumor, and overall normal neurological examinations performed by the claimant's neuro-oncologists." (R. 23.) Dr. Gruber noted that while Ms. Telesco has a lifetime condition, it is controlled with medications, and she has full motor strength. (R. 23.)
The ALJ also found Dr. Caruso's opinion persuasive. As the ALJ explained, Dr. Caruso examined Ms. Telesco and determined that, despite reports of back pain with a rated severity of ten out of ten, her physical exam indicated normal ranges of motion, full extremity strength, and no significant limitations. ALJ Cascio found Dr. Caruso's opinion consistent with objective imaging studies and neurological examinations and that it was supported by Ms. Telesco's treatment history and symptoms. (R. 23-24.)
ALJ Cascio also found Dr. Stack's opinion persuasive, even though it was based on a one-time psychological examination. The ALJ found that Dr. Stack's assessment was supported by her own objective findings on mental status examination, treatment notes by the claimant's mental health providers, and neurological exams. The ALJ further reasoned that he found Ms. Telesco's presentation during her session with Dr. Stack congruent with her presentation as clinically documented on progress notes. (R. 24.)
Finally, the ALJ found unpersuasive the opinion of Carol Philhower, Ms. Telesco's treating mental health counselor. The ALJ explained that "the difference between Ms. Philhower's earlier assessment [in 2018] and her subsequent opinion [in 2019] make for a rather striking inconsistency given the sparse evidence of cognitive decline." (R. 24.) Expanding on his reasoning, the ALJ stated that Philhower's opinion "is not supported by objective findings on mental status and neurological exams performed by the claimant's primary care providers and oncology specialists." (R. 24.) To support that conclusion, the ALJ cited progress reports from Community Primary Care by Dr. Gargiulo between 2015 and 2017 (R. 328-41) and progress notes from Dr. Gruber between late 2016 and late 2018. (R. 355-57, 374-79, 486-506.)
The ALJ incorrectly refers to Philhower as a licensed clinical social worker rather than a licensed mental health counselor.
Finally, the ALJ determined that Ms. Telesco did not have past relevant work but, considering her RFC, she could perform the jobs of marker, photocopy machine operator, and electrical equipment assembler. (R. 24-25.)
DISCUSSION
Ms. Telesco argues that the ALJ's decision should be remanded because his RFC determination was not supported by substantial evidence. (Pl. Mem. at 7. ) Ms. Telesco advances three arguments in support of this contention: first, the ALJ improperly evaluated the opinion evidence of treating mental healthcare counselor Carol Philhower; second, the ALJ improperly discounted Ms. Telesco's subjective complaints; and third, in formulating Ms. Telesco's RFC, the ALJ improperly cherry-picked from a medical opinion that the ALJ found persuasive. In response, the Commissioner argues that there is substantial evidence to support the ALJ's RFC determination because the ALJ reasonably found that Ms. Telesco was not as functionally limited as she alleged, and he reasonably found Philhower's April 19, 2019 opinion unpersuasive due to its inconsistency with her previous opinion and the rest of the record. (Def. Mem. at 12, 15. ) A. The ALJ Failed To Adequately Develop The Record
"Pl. Mem." refers to Ms. Telesco's "Memorandum Of Law In Support Of A Motion For Judgment On The Pleadings" (Dkt. 21).
"Def. Mem." refers to the Commissioner's "Memorandum Of Law In Opposition To Plaintiff's Motion For Judgment On The Pleadings And In Support Of The Commissioner's Cross-Motion For Judgment On The Pleadings" (Dkt. 23).
Although Ms. Telesco did not challenge the sufficiency of the record, the Court finds that the ALJ legally erred by failing to adequately develop the record to obtain a medical source opinion from Ms. Telesco's treating psychiatrist. See Campbell v. Commissioner of Social Security , No. 19-CV-4516, 2020 WL 4581776, at *14 (S.D.N.Y. Aug. 10, 2020) ("Whether the ALJ has satisfied this duty to develop the record is a threshold question. Before determining whether the Commissioner's final decision is supported by substantial evidence ... the court must first be satisfied that the ALJ ... completely developed the administrative record"); Sanchez v. Saul , No. 18-CV-12102, 2020 WL 2951884, at *23 (S.D.N.Y. Jan. 13, 2020) ("As a threshold matter, and regardless of the fact that Plaintiff did not raise an express challenge to the adequacy of the Record, this Court must independently consider the question of whether the ALJ failed to satisfy his duty to develop the Record."), R. & R. adopted , 2020 WL 1330215 (S.D.N.Y. March 23, 2020).
1. Duty To Develop The Record
An ALJ 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). That obligation results from the non-adversarial nature of the instant proceedings and exists "even when ... the claimant is represented by counsel." Pratts , 94 F.3d at 37.
The ALJ thus must make every reasonable effort to obtain evidence from the medical entity that maintains a claimant's medical records. 20 C.F.R § 416.912(b)(i). In order to have made a "reasonable effort," the ALJ must "make an initial request for evidence from [the claimant's] medical source or entity that maintains [the claimant's] medical source's evidence, and , at any time between 10 and 20 calendar days after the initial request, if the evidence has not been received, [the ALJ] will make one follow-up request to obtain the medical evidence necessary to make a determination." 20 C.F.R § 416.912(b)(i) (emphasis added). The receipt of some medical records is not enough to discharge an ALJ's duty. Rather,
the ALJ must obtain the treating physician's opinion regarding the claimant's alleged disability; "raw data" or even complete medical records are insufficient by themselves to fulfill the ALJ's duty. ... It is the opinion of the treating physician that is to be sought; it is his opinion as to the existence and severity of a disability that is to be given deference.
Dimitriadis v. Barnhart , No. 02-CV-9203, 2004 WL 540493, at *9 (S.D.N. Y March 17, 2004) (emphasis in original) (internal citation omitted); see also Pabon v. Barnhart , 273 F. Supp.2d 506, 514 (S.D.N.Y. 2003) ("[T]he duty to develop a full record ... compels the ALJ ... to obtain from the treating source expert opinions as to the nature and severity of the claimed disability ....") (alterations in original); Alvarez v. Commissioner Of Social Security , No. 14-CV-3542, 2015 WL 5657389, at *18 (E.D.N.Y. Sept. 23, 2015) ("In order to satisfy his threshold duty to develop the record, the ALJ had an obligation to obtain an opinion from Plaintiff's medical sources, including ... the doctors Plaintiff's [sic] referenced in her testimony.")
When documents received by an ALJ "lack any necessary information, the ALJ should recontact the treating physician." Oliveras Ex Rel. Gonzalez v. Astrue , No. 07-CV-2841, 2008 WL 2262618, at *6 (S.D.N.Y. May 30, 2008), R. & R. adopted , 2008 WL 2540816 (S.D.N.Y. June 25, 2008). A medical opinion is part of the "necessary information" that an ALJ should attempt to obtain from a treating physician. See Dimitriadis , 2004 WL 540493 at *9 ; Vera v. Barnhart , No, 04-CV-7764, 2007 WL 756577, at *10 (S.D.N.Y. March 13, 2007) (remanding because "ALJ had a clear duty to seek an opinion from [claimant's treating physician] regarding the existence, the nature, and the severity of the plaintiff's claimed disability" but did not).
2. The ALJ's Failure To Obtain Opinion Evidence From Dr. Figman
The ALJ failed to fulfill his obligation to develop the record here because there is no evidence that he received or even requested a medical opinion from Dr. Figman, Ms. Telesco's only treating psychiatrist. The ALJ indisputably was aware of Dr. Figman and his role. Ms. Telesco testified at her hearing that Dr. Figman prescribes her medication related to her mental health, and the record shows that Ms. Telesco treated with Dr. Figman on a monthly basis from August 2018 through February 2019. (R. 43, 473, 478, 506.) Indeed, the record includes two brief medical records from Dr. Figman – an initial psychiatric assessment and diagnostic review of Ms. Telesco from July 2018. They do not include, however, medical opinions beyond initial intake information and, importantly, an affirmation of her diagnosis of depression and anxiety. (R. 466-70.) The record is devoid, however, of any request or follow-up request to Dr. Figman to provide a medical source opinion.
Acquiring opinion evidence from Dr. Figman is especially crucial in this case, given both the nature of Ms. Telesco's impairment and the basis for the ALJ's discounting the opinion provided by Ms. Telesco's therapist, Carol Philhower. With respect to the former, Ms. Telesco filed for disability largely based on mental illness. In such cases, development of the record is particularly important. See Craig v. Commissioner of Social Security , 218 F. Supp. 3d 249, 268 (S.D.N.Y. 2016) ("The duty to develop the record is particularly important where an applicant alleges [s]he is suffering from a mental illness, due to the difficulty in determining whether these individuals will be able to adapt to the demands or ‘stress’ of the workplace").
Where mental health disorders are at issue, obtaining opinions from treating mental healthcare professionals is also especially important because mental impairments are "not susceptible" to certain diagnostic tools used to evaluate physical impairments. Flynn v. Commissioner Of Social Security Administration, 729 F. App'x 119, 122 (2d Cir. 2018). "A mental health patient may have good days and bad days; she may respond to different stressors that are not always active. Thus, the longitudinal relationship between a mental health patient and her treating physician provides the physician with a rich and nuanced understanding of the patient's health that cannot be readily achieved by a single consultative examination." Bodden v. Colvin , No. 14-CV-08731, 2015 WL 8757129, at *9 (S.D.N.Y. Dec. 14, 2015) ; see Estrella v. Berryhill , 925 F.3d 90, 95 (2d Cir. 2019) ("A one-time snapshot of a claimant's status may not be indicative of her longitudinal mental health")
The only opinion of a treating mental healthcare professional in the record is from Philhower. Although the ALJ did not say so, Phillhower's opinion is considered an "other source" rather than an acceptable medical source under the regulations. 20 C.F.R. § 416.902(a) ; Gove v. Saul, No. 19-CV-6839, 2020 WL 6712201, at *4 (S.D.N.Y. Nov. 16, 2020) (licensed mental health counselor did not qualify as an acceptable medical source under the Social Security regulations). That does not mean that her opinion is irrelevant. To the contrary, the opinion of a treating licensed mental health worker such as Philhower is "important[ ] and should be evaluated on key issues such as impairment severity and functional effects." Ward v. Commissioner Of Social Security , No. 18-CV-1317, 2020 WL 3035850, at *3 (W.D.N.Y. June 5, 2020) ; see also Feliciano o/b/o D.F. v. Commissioner of Social Security , No. 18-CV-00502, 2020 WL 1815754, at *3 (W.D.N.Y. Apr. 10, 2020) ("other source evidence including evidence offered by licensed mental health counselors, is material on the issues of the severity of plaintiff's impairments and how it affects her ability to work" (internal quotation marks and brackets omitted)); Canales v. Commissioner Of Social Security. , 698 F. Supp. 2d 335, 344 (E.D.N.Y. 2010) (holding that ALJ erred in disregarding opinion of social worker simply because it was the opinion of an "other source"). The ALJ dismissed Phillhower's opinion as unpersuasive. Having done so, however, the ALJ had an obligation to attempt to obtain a medical source opinion from Ms. Telesco's treating psychiatrist, Dr. Figman.
The regulatory citations in Gove are those for Disability Insurance Benefits. Virtually identical provisions applying to SSI appear at 20 C.F.R. § 416 et seq.
The import of Dr. Figman's opinion is underscored even further by the ALJ's having found persuasive the opinions of two psychological consultants, Dr. Stack and Dr. Walker, that were based on single-day evaluations of Ms. Telesco. (R. 24-52.) At the time Dr. Stack and Dr. Walker wrote their opinions, Ms. Telesco was not yet being treated by Philhower or Dr. Figman. Accordingly, neither Dr. Stack nor Dr. Walker had before them information during the period that Ms. Telesco was being treated for her mental impairments.
Moreover, Dr. Stack noted that the results of her examination were "consistent with psychiatric and cognitive problems" that "may significantly interfere with [Ms. Telesco's] ability to function on a daily basis." (R. 371.) Dr. Stack recommended that Ms. Telesco seek "individual supportive psychological therapy to help her deal with the diagnosis she is faced with." (R. 372.) Having found Dr. Stack's opinion persuasive, the ALJ had all the more reason to seek an opinion from the mental healthcare professional who subsequently treated Ms. Telesco. The ALJ's failure to do so was error and warrants remand. See Rosa v. Callahan , 168 F.3d 72, 80 (2d Cir. 1999) (remanding due to ALJ's failure to obtain "adequate information from [claimant's] treating physician"); Oliveras , 2008 WL 2262618 at *6-7 (remanding so the ALJ could make all reasonable efforts to obtain treating physician's opinion); Molina v. Barnhart , No. 04-CV-3201, 2005 WL 2035959, at *8 (S.D.N.Y. Aug. 17, 2005) (remanding so that ALJ could obtain opinions from two treating physicians); Devora v. Barnhart , 205 F. Supp. 2d 164, 175 (S.D.N.Y. 2002) (remanding for further development of the record because the ALJ did not make "every reasonable effort" to help [Plaintiff] get the necessary medical report from her treating physician).
3. The ALJ's Failure To Attempt To Close Obvious Gaps In Records
Of the six medical opinions considered, the only opinion that the ALJ found unpersuasive was that of Philhower. But the ALJ's reasoning for doing so is faulty and unsupported in the absence of the ALJ's failure to attempt to fill an obvious gap in the record.
The ALJ found Phillhower's 2019 opinion strikingly inconsistent from her initial intake assessment of Ms. Telesco "given the sparse evidence of cognitive decline." (R. 24.) There is no evidence in the record, however, that the ALJ made any follow-up attempt to request additional records that would be relevant to Ms. Telesco's trajectory between when she first saw Phillhower and seven months later when Phillhower provided her functional assessment. The record includes "progress notes" of Ms. Telesco's weekly sessions with Philhower that do not contain substantive information about Ms. Telesco's progression or deterioration; rather, they provide only the dates of appointments. (R. 473-74, 478-79.) Having dismissed Phillhower's opinion on the basis of inconsistencies and lack of supporting evidence, the ALJ should have made a follow-up attempt to request such information (such as notes that Phillhower may have taken during her weekly session with Ms. Telesco) in order to have the evidence necessary to make a determination. See 20 C.F.R § 416.912(b)(i) ; Bezerra v. Commissioner Of Social Security, No. 20-CV-4303, 2021 WL 4219727, at *6 (S.D.N.Y. Sept. 16, 2021) ; Velez v. Colvin, No. 14-CV-3084, 2017 WL 1831103, at *4 (S.D.N.Y. May 5, 2017) (six-month gap in mental health treatment notes constituted gap in the record).
The ALJ's failure to follow up in an attempt to fill the evidence gap warrants remand. Clark v. Commissioner Of Social Security , 143 F.3d 115, 118 (2d Cir. 1998) (stating there was a serious question as to whether the ALJ's duty to develop the record was satisfied where the ALJ did not affirmatively seek out clarifying information from a treating physician to cure perceived inconsistencies between the doctor's two reports); Calderon v. Commissioner Of Social Security, No. 16-CV-9002, 2018 WL 1466099, at *10 (S.D.N.Y. March 5, 2018) (remanding because the record was markedly incomplete following the ALJ's failure to follow up with plaintiff's treating physician and obtain missing treatment notes), R & R adopted , 2018 WL 1468687 (S.D.N.Y. March 23, 2018).
The ALJ's second reason for rejecting Phillhower's opinion is that it was "not supported by objective findings on mental status and neurological exams performed by the claimant's primary care providers and oncology specialists." (R. 24.) That reasoning is problematic for at least two reasons. First, to support his observation, the ALJ cited progress reports from Dr. Gargiulo between 2015 and 2017 (R. 328-41) and progress notes from Dr. Gruber between late 2016 and late 2018. (R. 355-57, 374-79, 486-506.) The majority of the ALJ's references, however, are to medical records that preceded the time when Ms. Telesco began treatment with Philhower. The ALJ did not cite contemporaneous evidence from Phillhower or Dr. Figman, only further highlighting the significance of failing to sufficiently develop the record.
Second, as the ALJ's statement makes plain, the providers whose treatment is reflected in the records are not mental healthcare professionals. Rather, they were "primary care providers and oncology specialists," yet again underscoring the import of the ALJ's failure to seek opinion evidence from Dr. Figman and more information from Phillhower. As noted in the regulations, "the medical opinion or prior administrative medical finding of a medical source who has received advanced education and training to become a specialist may be more persuasive about medical issues related to his or her area of specialty than the medical opinion or prior administrative medical finding of a medical source who is not a specialist in the relevant area." 20 C.F.R. § 416.920c(c)(4). Dr. Figman is the only mental health specialist with whom Ms. Telesco had a medical relationship, and it was erroneous to not request an opinion from that source. See Schweers v. Berryhill , No. 19-CV-6189, 2020 WL 5518326, at *10 (S.D.N.Y. Sept. 14, 2020) (stating the failure of the ALJ to obtain a medical source opinion from plaintiff's known treating psychiatrist was material and prejudicial and the ALJ could and should have followed up on missing information from the psychiatrist).
B. Subjective Complaints
The Court makes no judgment as to whether the ALJ adequately considered Ms. Telesco's subjective complaints. That is because further development of the record may influence the ALJ's assessment of those complaints.
Pursuant to the regulations, the ALJ must follow a two-step process for evaluating a claimant's personal assertions of pain and other limitations. Genier v. Astrue , 606 F.3d 46, 49 (2d Cir. 2010) (citing 20 C.F.R. § 404.1529(a) ); Randolph v. Colvin , No. 12-CV-8539, 2014 WL 2938184, at *10 (S.D.N.Y. June 30, 2014). "At the first step, the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged. That requirement stems from the fact that subjective assertions of pain alone cannot ground a finding of disability." Genier, 606 F.3d at 49 (emphasis in original) (citing 20 C.F.R. § 404.1529(a) ). "If the answer to the first query is yes, the ALJ then considers the extent to which the claimant's symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence of record." Randolph v. Colvin , No. 12-CV-8539, 2014 WL 2938184, at *10 (S.D.N.Y. June 30, 2014) (citing Genier , 606 F.3d at 49 ) (internal quotation marks and brackets omitted) adopted by , Order, No. 12-CV-8539, July 23, 2014.
The ALJ deduced that Ms. Telesco's "medically determinable impairment could reasonably be expected to produce the ... alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are note entirely consistent with the medical evidence and other evidence in the record." (R. 19-20.) Further development of the Record is likely to provide additional evidence that the ALJ will need to consider in making that same assessment on remand. Accordingly, the Court does not address at this time the issue of whether the ALJ incorrectly evaluated or discounted Ms. Telesco's subjective complaints.
C. Omitted Limitations From The RFC
Ms. Telesco also argues that the ALJ erred in formulating her RFC because he did not include limitations for which the ALJ found persuasive evidence. (Pl. Mem. at 13.) Specifically, the ALJ found persuasive Dr. Stack's opinion (R. 24), which included the opinion that Ms. Telesco had "moderate" limitations in her ability to sustain concentration and perform a task at a consistent pace as well as sustain an ordinary routine and regular attendance at work. Ms. Telesco contends that the RFC articulated by the ALJ does not sufficiently account for those limitations because although it included the limitations concerning concentration and consistency, it did not include those concerning routine and attendance at work.
Ms. Telesco is correct that an ALJ may not cherry-pick opinion evidence without providing good reasons for doing so. "It is entirely proper for the ALJ to only credit portions of medical source opinions, or weigh different parts of the same opinion differently." Artinian v. Berryhill , No. 16-CV-4404, 2018 WL 401186, at *8 (E.D.N.Y. Jan. 12, 2018). But an ALJ may not selectively favor medical opinions, or portions of an opinion, that support his opinion and ignore opinions or facts that do not. See Salisbury v. Saul , No. 19-CV-706, 2020 WL 913420, at *34 (S.D.N.Y. Feb. 26, 2020) (ALJ " ‘cherry-picked’ several isolated portions of treatment notes that were supportive of her decision and disregarded the majority of medical evidence in the record"); Artinian , 2018 WL 401186, at *8 (cherry-picking "may be defined as inappropriately crediting evidence that supports administrative conclusions while disregarding differing evidence from the same source"); Collins v. Colvin , No. 15-CV-423, 2016 WL 5529424, at *3 (W.D.N.Y. Sept. 30, 2016) ("An ALJ may not ‘cherry pick’ from a medical opinion, i.e. , he or she may not credit evidence that supports administrative findings while ignoring conflicting evidence from the same source").
That said, as with Ms. Telesco's subjective complaints, and for the same reason, the Court does not find it appropriate at this time to pass upon the ALJ's formulation of Ms. Telesco's RFC; further development of the record is likely to provide additional evidence that the ALJ will need to consider in redetermining Ms. Telesco's RFC. In formulating Ms. Telesco's RFC on remand, the ALJ will need to take into account all relevant evidence, including limitations supported by the Record, and should eschew cherry-picking.
CONCLUSION
For the reasons stated above, pursuant to sentence four of 42 U.S.C. § 405(g), Ms. Telesco's motion should be GRANTED, the Commissioner's motion should be DENIED, and the case should be remanded for determination consistent with the foregoing discussion.
PROCEDURES FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules Of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report And Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Mary Kay Vyskocil, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN WAIVER OF OBJECTIONS AND PRECLUDE APPELLATE REVIEW.