Castillo v. Berryhill, No. 1:2017cv09953 - Document 19 (S.D.N.Y. 2019)
Court Description: OPINION & ORDER re: 11 MOTION for Judgment on the Pleadings . filed by Nancy A. Berryhill, 9 MOTION for Judgment on the Pleadings . filed by Jose Antonio Castillo. The Commissioner's motion is DENIED and Plaintiff's motion is GRANTED insofar as this case is remanded for further proceedings. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 2/15/19) (yv) Transmission to Orders and Judgments Clerk for processing.
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Castillo v. Berryhill Doc. 19 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------X JOSE ANTONIO CASTILLO, Plaintiff, -againstCommissioner, Social Security Administration, Defendant. 02/15/2019 : : : : : : : : : : : OPINION & ORDER 17-CV-09953 (JGK) (KHP) ---------------------------------------------------------------X KATHARINE H. PARKER, United States Magistrate Judge. Jose Anto io Castillo Plai tiff is represented by counsel and commenced this action against Defendant Commissioner of the Social Security Administration (the Co issio e pu sua t to the “o ial “e u it A t the A t , 42 U.S.C. § 405(g). Plaintiff seeks review of the Co issio e s de isio that he was not disabled under Section 1614(a)(3)(A) of the Act from February 11, 2014, the date Plaintiff applied for Social Security benefits, through the date of the decision. The parties submitted a joint stipulation in lieu of cross-motions for judgment on the pleadings (the Joi t “tipulatio o J“, Do . No. pu sua t to this Cou t s O de . Doc. No. 16.) In the Joint Stipulation, the parties agreed that the two issues before this Court are (1) whether the Ad i ist ati e La Judge ALJ properly weighed the medical opinion evidence a d hethe the ALJ p ope l e aluated Plai tiff s testi o . In the instant appeal, Plaintiff o l disputes the ALJ s fi di gs pe tai i g to his e tal i pai e ts a d does ot halle ge Dockets.Justia.com the findings made regarding his alleged physical impairments. (JS 2 n.3.) Accordingly, this Cou t s de isio fo uses o Plai tiff s alleged e tal i pai Fo the easo s set fo th elo , the Co issio e s e ts. otio is DENIED a d Plai tiff s motion is GRANTED insofar as this case is remanded for further proceedings. BACKGROUND I. Summary of Claim and Procedural History Plaintiff Castillo is 43 years old and lives with his young son and long-time girlfriend in the home of a friend. (Id. at 12-13.) He also has four adult children who do not live with him. (Ad i ist ati e ‘e o d T . 266.) Plaintiff has an eleventh-grade education and was enrolled in special education as a child due to behavioral issues. (JS 12-13.) There is one indication in the record that he has dyslexia and only a third-grade reading level. (Tr. 260.) He was incarcerated from around 1999 through 2012 and has not been employed in any capacity since working in the kitchen while incarcerated. (Id. at 55; JS 12.) Plaintiff Castillo testified that he fell into a deep depression when his mother died in 2010 and has been i a total age e e since. (JS 13.) He also alleges that he began experiencing chronic symptoms arising from cellulitis1 of his left leg, asthma, high blood pressure, and anxiety in June of 2010. (Id.) Plai tiff s lo g-term goal is to obtain his general equivalency diploma GED a d ecome a barber. (Id. at 2.) The Court assumes knowledge of and does not repeat all the stipulated facts o e i g Plai tiff s edi al t eat e t he e. See generally id.) Cellulitis is a sp eadi g a te ial i fe tio of the ski a d the tissues i ediatel e eath the ski . https://www.merckmanuals.com/home/skin-disorders/bacterial-skin-infections/cellulitis. Symptoms may include redness, pain, skin tenderness, and, in more serious cases, fever, and chills. Id. Treatment of this condition typically requires antibiotics. Id. 1 2 Plaintiff protectively filed an application for Supplemental Securit I o e ““I ) on February 11, 2014, claiming that he was unable to perform any kind of substantial work due to impairments arising from cellulitis affecting his left leg, asthma, high blood pressure, anxiety, and depression. (Tr. 80.) The Social Security Administration denied his initial application. (Id. at 92-96.) Plaintiff subsequently retained counsel and requested a hearing by an ALJ to appeal the denial of his application for SSI benefits. (Id. at 97-105.) Plaintiff attended a hearing before ALJ Benjamin Green on June 22, 2016 with his attorney. (Id. at 45-79.) The ALJ issued a decision on October 14, 2016, finding that Plaintiff was not disabled from February 11, 2014 through October 14, 2016, the decision date. (Id. at 27-44.) Plaintiff appealed the ALJ s u fa o a le decision to the Appeals Council and that request was denied on October 24, 2017. (Id. at 1-7.) II. The Co issio er’s De isio ALJ Green decided to deny Plai tiff s benefits application pursuant to the five-step sequential process contemplated in the governing regulations. 20 C.F.R. § 416.920 (a)(4)(i)-(v). At step one, he found that Plaintiff has not engaged in substantial gainful activity since February 11, 2014, the application date. (Tr. 32.) At step two, ALJ Green concluded that Plaintiff suffered from the following severe impairments: depression, cellulitis, obesity, hypertension, and asthma. (Id.) At step three, the ALJ determined that Plai tiff s i pai e ts, o side ed oth individually and collectively, fail to meet or medically equal the severity of the impairments listed i C.F.‘. Pa t , “u pa t P, Appe di the Listi gs . Id.) When evaluating Plai tiff s deg ee of limitation resulting from his mental impairments, the ALJ looked to Section 3 12.04 in the Listings, which addresses affective disorders. Pursuant to this Section, a claimant has an affective disorder when they meet the criteria for both Paragraphs A and B or when they meet the criteria for Paragraph C in the Listings. The ALJ s de isio does not address whether Plaintiff met the requirements of Paragraph A. (Id. at 32.) However, the ALJ found that Plaintiff had the following limitations under Paragraph B: moderate difficulties in social functioning and in concentration, persistence or pace, and no episodes of decompensation. (Id. at 32-33.) Specifically, the ALJ determined the following: • • • • Pursuant to the consultative psychiatric evaluation conducted by Dr. Howard Tedoff on April 28, 2014, Plaintiff suffers from no restriction in daily living because he attends to his personal grooming and hygiene needs and assists with activities of daily living in his home. (Id. at 33; see also id. at 259.) Plaintiff suffers from moderate difficulties in social functioning. Although he cooperated and behaved appropriately during his consultative e a i atio ith D . Tedoff, the ALJ also took Plai tiff s laims that he does ot like ei g a ou d othe s a d that he has a te de to lash out at people a d e so iall isolati e i to a ou t. Id. at 33.) The ALJ also considered treatment records documenting sessions focused on anger management skills, as reported by Dr. Tedoff (id. at 267), in medical evidence records from St. Marks Place Institute fo Me tal Health, I . “t. Ma k s . (Id. at 296, 304, 329.) Plaintiff suffers from moderate difficulties regarding concentration, persistence or pace. The ALJ relied on evidence in the record provided by Dr. Tedoff (id. at 261) and St. Mark s id. at 303), but also considered Plai tiff s testi o that he fo gets things easily and was enrolled in special education classes as a child. (Id. at 53, 65-66.) The ALJ also found that Plaintiff suffered no periods of extended decompensation. (Id. at 33.) 4 Citing to the absence of evidence in the record, the ALJ concluded that, because Plaintiff did ot suffe f o at least t o a ked li itatio s o o e a ked limitation a d epeated episodes of decompensation, Paragraph B criteria were not satisfied. (Id. at 33) (internal quotations omitted.) The ALJ, likewise, concluded that the evidence in the record failed to establish the presence of Paragraph C criteria for Listing 12.04 because he found no supporting evidence in the record.2 (Id. at 33.) At step four, the ALJ found that Plaintiff retained the esidual fu tio al apa it ‘FC to perform light work, as defined in 20 C.F.R. § 416.967(b),3 with the additional limitation that he e li ited to pe fo i g si ple a d outi e tasks a d to aki g si ple a d outi e workplace decisions and having few o kpla e ha ges i t odu ed. (Id. at 34.) He also o luded that Plai tiff a ha e o l o asio al deali gs ith the pu li , supe iso s a d o- o ke s a d that he should ot e e posed to fu es, dust, odo s a d othe pul o a i ita ts. Id.) In determining Plai tiff s ph si al fu tio i g, ALJ Green relied on the record and Plai tiff s testi o that he a o l alk fo se e al lo ks at a ti e, experiences pain when sitting, and has difficulty carrying multiple bottles of soda. (Id.) The ALJ also considered The requirements of Paragraph C a e: Medi all do u e ted histo of a h o i affe ti e diso de of at least years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following: (1) Repeated episodes of decompensation, each of extended duration; or (2) A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or (3) Current history of 1 or more years inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. 20 C.F.R. § Pt. 404, Subpt. P, App. 1. 3 Light o k i ol es lifti g o o e tha pou ds at a ti e ith f e ue t lifti g o a i g of o je ts eighi g up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg o t ols. § .9 . 2 5 treatment records add essi g Plai tiff s eo u i g ellulitis, asthma, obesity, and high blood pressure, and secondary chronic bilateral lower leg lymphedema.4 (Id. at 35.) The ALJ relied on a treating record from Dr. Jin Suh, noting that the e as o e ide e fo ellulitis o Ju e 9, 2014 (id.; see also id. at 317), and medical records from Sage Medical Plaza documenting that Plai tiff had a o al gait a d o al heel-toe and tandem walking. (Id. at 35; see also id. at 326.) He also relied heavily on the physical consultative examination report prepared by Dr. Iqbal Teli, which explained that Plaintiff had a full squat and a normal gait, fo p olo ged sta di g, alki g, a d li ild est i tio i g, a d should a oid dust a d othe espi ato irritants due to history of asthma. Id. at 35, 229.)5 When analyzing Plai tiff s psychological functioning, the ALJ o side ed Plai tiff s testimony that he lashes out at others, has difficulty being around others, and struggles to remember things. (Id. at 34.) He also considered treatment notes from Dr. Mark Rybakov, which stated that Plaintiff suffers from major depressive disorder and mild cannabis dependence, has a glo al assess e t of fu tio i g GAF s o e of ,6 and that Plaintiff was prescribed medication to treat his symptoms. (Id. at 35; see also id. at 294, 297.) 4 Lymphedema is the accumulation of lymph in tissues that results in swelling. https://www.merckmanuals.com/home/heart-and-blood-vessel-disorders/lymphaticdisorders/lymphedema#v1488454. Plaintiff did not identify this condition in his initial SSI benefits application. (Id. at 80.) 5 Though mentioned by Plaintiff during the hearing, the ALJ as ot e ui ed to o side Plai tiff s alleged ight leg, back, and shoulder pain in reaching his RFC determination because Plaintiff did not list these impairments in his initial SSI application. (Id. at 55, 61-62, 80.) Moreover, apart from Plai tiff s hea i g testi o , the e as o evidence in the record indicating that Plaintiff suffers from these conditions. Indeed, the available medical records indicate that Plaintiff can walk normally, carry light items, and has normal functioning in his back. (E.g., id. at 229, 326.) 6 The Diag osti a d “tatisti al Ma ual of Me tal Diso de s D“M states that a GAF score of 41-50 reflects serious symptoms and a score of 51-60 reflects moderate symptoms. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 27-34 (4th ed., text rev. 2000). 6 ALJ Green also considered treatments notes prepared by Nu se P a titio e N.P. Griffin stating that Plaintiff suffers from depression but reported significant improvement in his mood since beginning treatment. (Id. at 36.) He also relied on a Mental Impairment Questionnaire the Questio stating that Plaintiff had so e ai e prepared by N.P. Griffin and co-signed by Dr. Keith Degi ode ate li itatio s i a eas of o e t atio a d pe siste e, so ial i te a tio s, a d adaptatio , a d so e ode ate-to- a ked li itatio s i areas of concentration and persistence and social interactions. (Id.; see also id. at 283.) The ALJ a o ded little eight to [N.P. G iffi s a d D . Degi s] opi io ega di g the lai a t s ability to perform activities within a schedule and consistently be punctual and that he would ha e a ked li itatio s deali g ith the pu li . po tio s of the Questio ai e Id. at 36.) He justified giving little weight to stati g that the e as othi g i [N.P. G iffi s] treating e o ds to suppo t this assess e t o i the su se ue t e tal health t eati g e ide e. Id. at 37.) The ALJ also relied on a consultative assessment prepared by Dr. Tedoff advising that Plaintiff should be limited to performing routine tasks, making simple workplace decisions, and having only occasional dealings with the public. (Id.; see also id. 259-63.) However, ALJ Green affo ded little eight to D . Tedoff s o lusio that Plai tiff Castillo has a ilit to ai tai a egula s hedule i a o kpla e. a ked li its i his Id. at 262.) At step fi e of his a al sis, the ALJ o side ed Plai tiff s age, edu ation, and RFC and, after consulting with a vocational expert, found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (Id. at 38–39.) Thus, the ALJ held that Plaintiff was not disabled from February 11, 2014 through the decision date. (Id. at 39.) 7 DISCUSSION I. Applicable Law A. Judicial Standard of Review of the Co issio er’s De isio A cou t s e ie of a appeal of a de ial of disa ilit e efits is li ited to t o i ui ies. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). First, the court must determine whether the Commissioner applied the correct legal principles in reaching a decision. 42 U.S.C. § 405(g); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). Second, the court must decide whether the Co issio e s de isio is suppo ted su sta tial e ide e i the e o d. Id. If they are supported by substantial evidence in the administrative record, the ALJ s fi di gs as to any facts are conclusive. 42 U.S.C. § 405(g); § 1383(c)(3). A ALJ s failu e to appl the o e t legal sta da d o stitutes e e si le e o if that failure may have affected the disposition of the case. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). This applies to a ALJ s failu e to follo an applicable statutory provision, egulatio , o “o ial “e u it ‘uli g ““‘ . See, e.g., id. (regulation); Schaal v. Callahan, 993 F. Supp. 85, 93 (D. Conn. 1997) (SSR). In such a case, the court may remand the matter to the Commissioner under sentence four of 42 U.S.C. § 405(g), especially if deemed necessary to allow the ALJ to develop a full and fair record or to explain his or her reasoning. Crysler v. Astrue, 563 F. Supp. 2d 418, 429 (N.D.N.Y 2008). If the reviewing court is satisfied that the ALJ applied the correct legal standards, then the reviewing ou t ust conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Co issio e s de isio . . . . Brault v. Soc. Sec. Admin., Co 8 ’r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). The substantial evidence standard means that, once an ALJ finds facts, a reviewing court may reject those facts o l if a easo a le fa tfi de ould ha e to o lude othe ise. Id. at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)) (emphasis omitted). To be supported by substantial e ide e, the ALJ s de isio ust e ased o o side atio of all e ide e a aila le i [the lai a t] s ase e o d. U.“.C. § 423(d)(5)(B); § 1382(a)(3)(H)(i). The A t e ui es the ALJ to set fo th a dis ussio of the e ide e a d the easo s upo hi h [the de isio ] is ased. § 405(b)(1). While the ALJ s de isio ite eed ot e tio [] e e of testi o F.2d 1033, 1040 (2d Cir. 1983) (per curiam , o p ese ted, Mongeur v. Heckler, 722 e o ile e pli itl e e o fli ti g sh ed of edi al testi o , Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (internal quotation a ks o itted , the ALJ a disability. See Ericksso v. Co ot ig o e o is ha a te ize e ide e of a pe so s alleged ’r of Soc. Sec., 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 (DC), 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring evidence); see also Zabala, 595 F.3d at 409 (reconsideration of improperly excluded treating physician evidence typically requires remand). If the decision denying benefits applied the correct legal standards and is based on substantial evidence, the reviewing court must affirm. 42 U.S.C. § 405(g). Otherwise, the court may modify or reverse the decision, with or without remand. Id. 9 B. Legal Pri iples Appli a le to the Co U de the “o ial “e u it A t, e e issio er’s Disa ility Deter i atio i di idual o side ed to ha e a disa ilit is entitled to disability insurance benefits. 42 U.S.C. § 423(a)(1). The A t defi es disa ilit i a ilit to e gage i a su sta tial gai ful a ti it easo of a edi all dete as a i a le physical or mental impairment which can be expected to result in death or which has lasted or a e e pe ted to last fo a o ti uous pe iod of ot less tha 1382c(a)(3)(A). A lai a t s i pai e ts o ths. § 423(d)(1)(A); § ust e of su h se e it that he is ot o l u a le to do his previous work but cannot, considering his age, education, and work experience, e gage i a othe ki d of su sta tial gai ful o k hi h e ists i the atio al e o o . § 423(d)(2)(A); § 1382c(a)(3)(B). To determine whether an individual is entitled to receive disability benefits, the Commissioner is required to conduct the following five-step inquiry: (1) Whether the claimant is currently engaged in any substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i). (2) If not gainfully employed, dete i e hethe the lai a t has a se e e i pai e t that sig ifi a tl li its his o he a ilit to do asi ok activities. Under the applicable regulations, an impairment or combination of i pai e ts that sig ifi a tl li its the lai a t s a ility to perform asi o k a ti ities is o side ed se e e. § 416.920(a)(4)(ii) (3) If the lai a t has a se e e i pai e t, dete i e hethe the impairment is one of those listed in Appendix 1 of the regulations – if it is, the Commissioner will presume the claimant to be disabled and the claimant will be eligible for benefits. § 416.920(a)(4)(iii). At this stage, the Co issio e also ust dete i e the lai a t s a ilit to pe fo physical and mental work activities on a sustained basis despite his impairments, or RFC.7 § 416.920(a)(4)(iv). A lai a t s esidual fu tio al apa it is the ost [she] a still do despite [he ] li itatio s. C.F.‘. § 404.1545(a); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010); see also SSR 96-9P (clarifying that a lai a t s esidual functional capacity is his maximum ability to perform full-ti e o k o a egula a d o ti ui g asis . The ALJ s 7 10 (4) If the claimant does not meet the criteria for being presumed disabled, the Commissioner next must determine whether the claimant possesses the RFC to perform his past work. Id. (5) If the claimant is not capable of performing work he performed in the past, the Commissioner must determine whether the claimant is capable of performing other work. § 416.920(a)(4)(v); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Gonzalez v. Apfel, 61 F. Supp. 2d 24, 29 (S.D.N.Y. 1999). The claimant bears the burden at the first four steps of the analysis. Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). At the last step, the Commissioner has the u de of sho i g that the e is othe gainful work in the national economy which the lai a t ould pe fo . Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998). Where a claimant alleges mental impairments in connection with an application for disability benefits, an ALJ also must assess those limitations pursuant to 20 C.F.R. § 416.920a. These regulations require the appli atio of a spe ial te h i ue at the se o d a d thi d steps of the five-step framework and at each level of administrative review. § 416.920a(a); Kohler v. Astrue, 546 F.3d 260, 265–66 (2d Cir. 2008). Thus, the ALJ must first determine whether: (1) The lai a t has 416.920a(b)(1). edi all dete i a le e tal impairment(s). § (2) If the claimant has su h a i pai e t, the e ie i g autho it ust ate the degree of functional limitation resulting from the impairment s in the following areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. § 416.920a (b)(2), (c)(3). assess e t of a lai a t s esidual fu tio al apa it ust e ased o all ele a t edi al a d othe e ide e, including objective medical evidence, such as x-rays and MRIs, the opinions of treating and consultative physicians, a d state e ts the lai a t a d othe s o e i g the lai a t s i pai e ts, s pto s, ph si al li itatio s, and difficulty performing daily activities. Genier, 606 F.3d at 49 (citing § 404.1545(a)(3)). 11 (3) The first three functional areas (daily living; social functioning; and concentration, persistence, or pace) are rated using a five-point scale: none, mild, moderate, marked, and extreme. The fourth functional area (episodes of decompensation) is rated using a four-point scale: none, one or two, three, four or more. The last point on each scale represents a degree of limitation that is incompatible with the ability to perform any gainful activity. § 416.920a(c)(4). If the deg ee of li itatio is lai a t s i pai o e o ild, the ALJ will typically conclude that the e ts a e ot se e e, u less contrary evidence indicates more than a minimal limitation to complete basic work activities. § 416.920a d . Whe e a lai a t s e tal impairment is severe, the ALJ will determine if it meets or is equivalent in severity to a listed mental disorder. § 416.920a(d)(2). The ALJ accomplishes this task by comparing medical fi di gs ega di g the lai a t s i pai e ts to the ati g of the deg ee of fu tio al limitation to the criteria of the appropriate mental disorder. Id. Where a claimant has a mental i pai e t that eithe eets o is e ui ale t i se e it to a listi g, the lai a t s ‘FC will be assessed, in accordance with § 416.920(a)(4). § 416.920a(d)(3). II. Analysis A. Development of the Record In Social Security proceedings, the ALJ must affirmatively develop the record on behalf of all claimants. See Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). Thus, the ALJ must investigate the facts and develop the arguments both for and against granting benefits. Id. Whether the ALJ has met this duty to develop the record is a threshold question. Accordingly, efo e e ie i g hethe the Co e ide e u de U.“.C. § issio e s fi al de isio is suppo ted su sta tial g , the ou t ust fi st e satisfied that the ALJ p o ided plai tiff ith a full hea i g u de the “e eta s egulatio s a d also full a d o pletel 12 de eloped the ad i ist ati e e o d. Scott v. Astrue, No. 09-cv-3999 (KAM), 2010 WL 2736879, at *12 (E.D.N.Y. July 9, 2010). The ALJ has an obligation to develop the record even where the claimant has legal counsel. Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). Remand is appropriate where this duty is not discharged. See, e.g., Moran, 569 F.3d at 114– a ate ot e ause the ALJ s de isio the ALJ should have developed a as ot suppo ted We su sta tial e ide e ut e ause o e o p ehe si e e o d efo e aki g his de isio . . [W]he e the e a e o o ious gaps i the ad i ist ati e e o d, a d he e the ALJ al ead possesses a o plete edi al histo , the ALJ is u de o o ligatio to seek additio al information in ad a e of eje ti g a e efits lai . Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (citing Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996)). Although Plaintiff does not expressly allege that the ALJ failed to fully develop the record (JS 1), this Court is nevertheless obliged to conduct its own independent assessment of whether the ALJ properly discharged this duty.8 In making his decision, ALJ Green stated that he considered Exhibits 1A-12F, which contain Plai tiff s full edi al e o d. T . . He also relied on information obtained from Plaintiff during an in-person hearing. (E.g., id. at 56-59, 69-72.) Although the ALJ stated that the e o d i ludes spa se edi al e ide e ega di g the claimant s ph si al fu tio i g id. at 35), this Court concludes that Plai tiff s edi al record, as it pertains to his physical impairments, appears to be complete with respect to the o ditio s alleged i Plai tiff s ““I e efits appli atio . (See, e.g., id. 35, 80, 228-29, 233-34, While Plai tiff did ot e p essl aise the ALJ s failu e to de elop the e o d as a atte i o t o e s , this issue is inexorably intertwined with another problem Plaintiff affirmatively raised – that the ALJ failed to properly weigh the medical opinion evidence in the record. 8 13 316-17, 326.) The Court, however, reaches the opposite conclusion he e aluati g Plai tiff s mental health records. In his decision, the ALJ disregarded portions of the Questionnaire prepared by N.P. Griffin and Dr. Degi finding that Plaintiff has [p]e fo ith o ode ate-to- a ked li itatio s i his a ilit to a ti ities ithi a s hedule a d o siste tl ea othe s ithout ei g dist a ted app op iatel ith the pu li . e pu tual, [ ]o k i oo di atio the , a d his a ilit to [i] te a t Id. at 283.) The Questionnaire indicates that these symptoms would occur frequently, during between one to two-thirds of an eight-hour work day. (Id.) The ALJ also brushed aside conclusions made by Dr. Tedoff that Plaintiff has a ilit to a ked li its i his ai tai a egula s hedule i a o kpla e a d that Plai tiff s p og osis fo ei g able to look for, obtain and sustain himself in gainful employment in the near future is guarded to poo . Id. at 262.) The ALJ ignored these assessments because he concluded that they were unsupported by the record a d N.P. G iffi s t eati g otes. (Id. at 36-37.) ALJ G ee s finding that N.P. G iffi s, D . Degi s, a d D . Tedoff s opinions were unsupported by the record triggered an obligation to further develop the record with respect to those opinions. Indeed, it is well established that where an ALJ disagrees with an assessment provided by a medical or other treating source, he must explore the basis for the assessment and whether it is consistent with evidence in the record. Such exploration may require the ALJ to re- o ta t the lai a t s t eati g sou es. See, e.g., Selinsky v. Comm'r of Soc. Sec., No. 08-CV-1363 (GLS)(VEB), 2010 WL 2671502, at *6 (N.D.N.Y. June 14, 2010), adopted by, No. 5:08-CV-1363, 2010 WL 2671499 (N.D.N.Y. June 30, 2010) (remanding for fu the de elop e t of the e o d a d i st u ti g ALJ to e-contact the treating nurse 14 practitioner to obtain the basis for her assess e t ega di g Plai tiff's ‘FC. . . . . Here, the ALJ should have at least attempted to contact N.P. Griffin and Dr. Degi to ask why they concluded that Plai tiff e hi ited e tai ode ate-to- a ked e tal i pai e ts. He also should have sought to contact Dr. Tedoff to clarify why he believed that Plaintiff would be unable to adhere to a regular work schedule. Although a ALJ s ha isappli atio of the la a e ig o ed he e it o stitutes less e o , he e, the ALJ s failu e to ade uately develop the record was not harmless and warrants remand. Indeed, at the hea i g, the ALJ asked the Co hethe Plai tiff s a se e f o o k at least t o da s pe issio e s o atio al e pe t o th ould eli i ate the availability of employment optio s a d the e pe t espo ded i the affi ati e. Id. at 75.) The expert further testified that an individual who is unable to consistently be punctual may ot e e plo a le e ause [l]ate ess is e ui ale t to ot ei g o the jo site. Id. at 76- 77.) Because N.P. Griffin, Dr. Degi, and Dr. Tedoff all opined that Plaintiff suffers marked limitations in his ability to adhere to a schedule and consistently be punctual, the facts underlying those opinions are necessary to determine Plai tiff s ‘FC. A ordingly, the ALJ s failure to fully develop the record constitutes an error necessitating remand pursuant to sentence four of 42 U.S.C. § 405(g). See, e.g., Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Crysler v. Astrue, 563 F. Supp. 2d 418, 429 (N.D.N.Y 2008). B. The Evidence Supporting Plai tiff’s Appli atio for Disability Benefits Although an ALJ is not required to assess each item of testimony presented or explain why he considered particular evidence unpersuasive or i suffi ie t, a ad i ist ati e la judge a ot he -pi k edi al opi io s that suppo t his o he opi io 15 hile ig o i g opi io s that do ot. Tim v. Colvin, No. 6:12-CV-1761 (GLS)(ESH), 2014 WL 838080, at *7 (N.D.N.Y. Mar. 4, 2014) (citing Scott v. Astrue, 647 F.3d 734, 740 (7th Cir.2011)) (reversing and remanding); see also Thomas v. Berryhill, 337 F. Supp. 3d 235, 244 (W.D.N.Y. 2018) (same). Here, the ALJ attributed significant weight to the Questionnaire prepared by N.P. Rachel Griffin and co-signed by Dr. Keith Degi. (JS 3; Tr. 36-37.) As explained above, the Questionnaire states that Plai tiff has ode ate-to- a ked li itatio s i his a ilit to adhere to a schedule, be punctual, work with others, and interact with the public. (Tr. 283.) Although she is not an accepted medical professional,9 the ALJ gave N.P. G iffi s assess e t of Plai tiff s e tal i pai e ts sig ifi a t eight. (Id. at 36.) Yet, when a al zi g the po tio of N.P. G iffi s assess e t concluding that Plaintiff exhibits symptoms that are ode ate-to- a ked, the ALJ afforded those specific observations little eight e ause the e as othi g i he t eati g e o ds to suppo t this assess e t o i the subsequent mental health treatme t e ide e. Id. at 36-37.) This conclusion is incompatible ith the est of the ALJ s opi io because he gave significant weight to some portions of the Questionnaire that also lack any di e t suppo t i N.P. G iffi s otes and the record. For example, the ALJ afforded significant weight to the assessment that Plaintiff has only moderate limitations in [ ]espo di g app op iatel to o kpla e ha ges. 9 Id. at 283.) Yet, there is Under the regulations in effect at the time Plaintiff filed his claim, an ALJ must give deference to the opinions of a lai a t s t eati g ph si ia s if the a e ell-suppo ted edi al fi di gs a d is ell-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence i . . . [the] e o d. 20 C.F.R. § 416.927(c)(2). To be considered a treating physician, a healthcare provider must be a licensed physician, licensed or certified psychologist, licensed optometrist, licensed podiatrist or qualified speechlanguage pathologist. 20 C.F.R. § 416.913(a)(1)-(5). 16 othi g i N.P. G iffi s t eat e t otes or the record that expressly supports this conclusion. (Id. at 265-78, 280.) In addition, ALJ G ee s refusal to accept N.P. G iffi s finding that Plaintiff has ode ate-to- a ked li itatio s i pe fo [i g] a ti ities ithi a s hedule a d o siste tl be punctual, contradicts the evidence in the record. I deed, N.P. G iffi s t eat e t otes indicate that Plaintiff was late to two appointments (id. at 269, 273) and the Questionnaire states that, although Plaintiff was scheduled to attend appointments on a monthly basis, he only attended six appointments between May 6, 2013 and June 9, 2014. (Id. at 280.) Further, and as acknowledged by ALJ Green, the record shows that Plaintiff was discharged from a mental health p og a a el atte da e. at “t. Ma ks e ause he as ot a le to o pl ith p og a ules, Id. at 36, 329.) The ALJ, likewise, inconsistently weighed portions of the consultative report prepared by Dr. Tedoff. In his assessment, Dr. Tedoff stated that Plaintiff has marked limits in his ability to ai tai a egula s hedule i a o kpla e a d o luded that Plai tiff s p og osis fo ei g a le to look fo , o tai and sustain himself in gainful employment in the near future is gua ded to poo . (Id. at 262.) Similar to his assessment of the Questionnaire, the ALJ afforded more weight to the po tio s of D . Tedoff s epo t that i pl that Plai tiff a ot e disa led than portions that concluded that Plaintiff suffers from marked limitations because the e as othi g i [D . Tedoff s] e a i atio assess e t. e o d o i the o e all t eati g e ide e to suppo t this Id. at 37.) In light of the above, the Court finds that the ALJ improperly weighed the medical and opinion evidence in the record because he improperly chose to rely on evidence that favored 17 de i g Plai tiff s disa ilit lai while ignoring e ide e that suppo ted Plai tiff s lai . (Id. at 269, 273, 280, 329.) Accordingly, the instant proceeding must be remanded pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the ALJ should contact N.P. Griffin, Dr. Degi, and Dr. Tedoff to ascertain the factual bases for their assessments regarding Plaintiff Castillo s mental impairments in order to properly weigh their opinions and accurately determine Plai tiff s ‘FC. See, e.g., Selinsky v. Comm'r of Soc. Sec., No. 08-CV-1363 (GLS)(VEB), 2010 WL 2671502, at *6 (N.D.N.Y. June 14, 2010), adopted by, No. 5:08-CV-1363, 2010 WL 2671499 (N.D.N.Y. June 30, 2010). CONCLUSION Fo the fo egoi g easo s, the Co issio e s otio is DENIED a d Plai tiff s otio is GRANTED insofar as this case is remanded for further proceedings. SO ORDERED. Dated: February 15, 2019 New York, New York _____________________________ KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE 18
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