ORDER

DAVID E. PEEBLES, District Judge.

Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Acting Commissioner, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on February 20, 2019, during a telephone conference held on the record. At the close of argument, I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Acting Commissioner's determination did not result from the application of proper legal principles and is not supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by the plaintiff in this appeal.

After due deliberation, and based upon the court's oral bench decision, a transcript of which is attached and incorporated herein by reference, it is hereby

ORDERED, as follows:

1) Plaintiff's motion for judgment on the pleadings is GRANTED.

2) The Acting Commissioner's determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is VACATED.

3) The matter is hereby REMANDED to the Acting Commissioner, without a directed finding of disability, for further proceedings consistent with this determination.

4) The clerk is respectfully directed to enter judgment, based upon this determination, remanding the matter to the Acting Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case.

(In chambers, counsel present by telephone. Time noted: 10:13 a.m.)

THE COURT: I have before me an application for judicial review of an adverse determination by the Acting Commissioner pursuant to 42, United States Code, Sections 405(g) and 1383 (c) (3).

The background is as follows: The plaintiff was born in September of 1983 and is currently 35 years old. She was 30 years of age at the time of the alleged onset of her disability. She lives with her four children, who at the time of the hearing in this matter, May 2016, were 16 years old, 15 years old, and a set of twins 9 years of age. Plaintiff's husband is, or was at the time of the hearing, incarcerated. The plaintiff has a GED. She can read and write well according to her testimony. She drives, but does not own a car. In terms of work, the evidence was kind of equivocal.

She says that she had one full-time position as a customer service representative at a call center for Sutherland Global Services and says at page 65 that she was laid off, but at 299 claims that she left that position due to her medical condition. In the hearing, she stated at one point that she never had a full-time job. That's at page 93. She has also performed work in a customer service relation in other settings in the field of food preparation and as a sales associate. That's supported by pages 300 and 533 of the Administrative Transcript. Physically, plaintiff suffers from back and neck issues stemming in part from a motor vehicle accident sustained in February 2015. She was also struck as a pedestrian by a motor vehicle in February 2016. From that, she sustained injuries to her right side and leg and was treated at the Upstate Medical Center emergency room. Plaintiff underwent a C4 through C7 anterior cervical discectomy with fusion on January 20, 2014, by Dr. Ian Madom. She also suffers from lower back pain and neck pain into her arms and uses a cane to ambulate.

Mentally, plaintiff has suffered from significant emotional trauma over the years. She was raped by her stepfather. That's at page 534. She was molested by an uncle, according to 1033 of the Administrative Transcript, and beaten by her mother, also supported by 534. She sees Dr. Bill Hines and LCSW Eileen Essi at the Syracuse Community Health Center for her mental conditions.

Those conditions have been diagnosed over the years variously, including major depressive disorder with psychosis (severe), a general anxiety disorder with panic, separation anxiety, posttraumatic stress disorder or PTSD, and endogenous depression with psychotic symptoms. She has been prescribed Risperdal for anger, Cymbalta for her depression. She has also in the past has taken Lexapro, Wellbutrin, and Ativan.

She has somewhat of a criminal history, that's at page 118, and has been incarcerated at various times. She allegedly beat up her mother-in-law, at page 102, she has a history of DWI arrests, and she has a history of treatment in CPEP. Plaintiff smokes, consumes drugs, including cocaine and alcohol.

For daily activities, she shops with her daughters. She does some cooking, some cleaning, mostly stays home, does not socialize, has no hobbies, and claims at page 116 and 117 that she does not like people.

In terms of procedural history, plaintiff applied for Title II and Title XVI benefits protectively on February 14, 2014, alleging disability on the basis of depression, anxiety, and lower back pain. She alleges an onset disability date of October 31, 2013.

Plaintiff initially appeared for a hearing before Administrative Law Judge Jennifer Gale Smith on February 16, 2016, without representation. That hearing was ultimately adjourned. Subsequent hearings were conducted by ALJ Smith on May 19, 2016, and August 25, 2016. On November 21, 2016, Administrative Law Judge Smith issued a decision finding that plaintiff was not disabled at the relevant times and therefore not entitled to the benefits sought. That became a final determination of the agency on January 5, 2018, when the Social Security Administration Appeals Council denied plaintiff's request for a review.

In terms of the Administrative Law Judge's decision, I can say this, it is extremely thorough and comprehensive. ALJ Smith applied the sequential familiar five-step test for determining disability.

At step one, she concluded that plaintiff had not engaged in substantial gainful activity since October 31, 2013.

At step two, she concluded that plaintiff does suffer from severe impairments, including status post anterior cervical discectomy with fusion at the C4-5, C5-6, and C6-7 levels, thoracic spine herniated disc at the T5-6 and T6-7 levels, mild lumbar facet joint disease, obesity, depression with psychotic symptoms, anxiety, PTSD, and substance abuse.

At step three, the Administrative Law Judge determined that plaintiff's conditions did not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, specifically considering listings 1.02, 1.04, 14.09, the musculoskeletal listings following 1.00, neurological listings following 11.00, and 14.00. The ALJ also announced that she had considered plaintiff's obesity, although it is not any longer a listed impairment. ALJ Smith then surveyed the available evidence and concluded that plaintiff retains the ability to perform sedentary work with both physical and mental-based limitations.

As is relevant to the claims in this case, the mental limitations include that she should work at simple routine and repetitive tasks, should work in a low stress job defined as occasional decisionmaking, occasional judgment required, and occasional changes in the work setting, and should have occasional contact with co-workers, supervisors, and the public.

At step four, utilizing that RFC finding, Administrative Law Judge Smith found that plaintiff was not able to perform any of her past relevant work.

At step five, after noting that if the Medical-Vocational Guidelines, or the grids, set forth in Commissioner's regulations were applied, Rule 201.27 would direct a finding of no disability. Because plaintiff was not able to perform a full range of sedentary work, however, ALJ Smith secured the testimony of a vocational expert, and based on that testimony concluded that plaintiff could perform as a document preparer, an addresser, and a surveillance system monitor and thus was not disabled at the relevant times.

As you know, my task is extremely limited. I must determine whether the Commissioner's and the ALJ's decision is supported by substantial evidence and resulted from the application of proper legal principles. It is a deferential standard. Substantial evidence is defined as such evidence as a reasonable person would consider sufficient to support a conclusion.

The medical source statement from Dr. Hines and LCSW Essi is from June 21, 2016. Although LCSW Essi is not an acceptable medical source, Dr. Hines who co-signed is and, therefore, it is entitled to controlling weight, provided it is supported by medically acceptable clinical and diagnostic techniques and is not inconsistent with other substantial evidence.

If ALJ Smith did not, which she did not, give controlling weight to the treating source's opinion, she must have applied the specified factors set forth in 20 CFR Sections 404.1527 and 20 CFR Section 416.927, and those factors include the length of treatment relationship, frequency of examination, nature and extent of the treatment relationship, evidence supporting the treatment provider's opinion, degree of consistency between the opinion and the record as a whole, whether the opinion is given by a specialist, and other evidence that has been brought to the attention of the ALJ.

In this case, Dr. Hines is a psychiatrist. Dr. Hines and LCSW Essi have been treating plaintiff longitudinally and are familiar with her. I note that we're dealing with mental impairment, which is inherently subjective and is less susceptible to objective measure than a physical impairment might be. The ALJ rejected the opinion and elevated the consultative opinion of Dr. Shapiro, an examining consultative examiner, and L. Blackwell, who is not an examining consultant, over it. I note, however, that those opinions are both from the first half of 2014. Dr. Shapiro's opinion came on April 28, 2014. L. Blackwell's, which was based in a large part on Dr. Shapiro's report, was issued on May 6, 2014. Since that time, it appears that plaintiff's mental condition deteriorated significantly.

In July of 2014, she underwent an anxiety attack, was taken to the emergency room with chest pains and anxiety. That's at 1232. On October 4, 2014, she threatened to harm herself, to cut herself, and was supposed to go to CPEP, but went home before she could appear there. On October 22, 2014, she was referred to CPEP by her primary physician. That's at 1262 to 1269 of the Administrative Transcript. On April 27, 2015, the plaintiff was taken to the emergency room by law enforcement after her husband found her in the tub with a knife, she had cut her wrists, and she was required to be put in restraints. That's at 1297 to 1298. In September of 2015, the plaintiff was again taken to CPEP by law enforcement and was deemed be to be suicidal after she tried to help her husband and protect him from being arrested by the police. That is at 1218 to 1220.

I'll note also that it appears that the plaintiff has difficulty in dealing with people. It was reported that she was rude and obnoxious to the agency interviewer. That's at page 296 of the Administrative Transcript. Interestingly enough, Administrative Law Judge Smith said that she didn't observe any problems with the plaintiff's attitude. That's at page 35. But I read the transcript and I know I wasn't there, but the transcript very clearly suggests to me at pages 71 and 118 that plaintiff did have difficulties. She had to be told at one time to calm down and at another time she flatly refused to discuss her depression with the Administrative Law Judge.

Dr. Blackwell's opinion interestingly notes that there were no hospital or emergency room visits associated with plaintiff's psychiatric condition. Obviously, that changed dramatically. He did, however, note — he or she — that plaintiff does have difficulty in getting along with people and I think the evidence supports that.

So there's really issues of plaintiff's ability to deal with stress. I acknowledge that the RFC prescribes a low stress environment. As the plaintiff has pointed out, SSR 85-15 reflects that a person's reaction to stress is highly individualized. The more troublesome areas are the contact with people, occasional contact with supervisors, co-workers, and the public. Even Dr. Shapiro found a moderate limitation in that and I think substantial evidence suggests that she has more than just a moderate limitation in her ability to interact with people.

Also at issue is the time that she would be off task and absent. Although Dr. Shapiro found only a moderate limitation in the ability to tend to a routine and maintain schedule, evidence including Dr. Hines's evaluation suggests otherwise.

It seems to me the bottom line is although ALJ cited and cherry picked some contrary opinions in the record and GAF scores, which of course is nothing but a snapshot of a person's condition at a given time, the — as one of my colleagues, Judge Hummel, said in Marthens v. Colvin, 2016 WL 5369478, normal mental status examinations and moderate GAF scores without more do not amount to substantial evidence sufficient to warrant reduction in the weight accorded to treating source's medical opinion concerning an ability to interact appropriately with others. And that's basically the situation we have here.

The Administrative Law Judge is required, of course, duty bound, to fill gaps in a record. Rosa v. Callahan, 163 F.3d 72, the Second Circuit acknowledged that duty, and specifically that the Second Circuit case law reflects that an ALJ cannot reject a treating physician's diagnosis without first attempting to fill in clear gaps in the administrative record.

In this case, there are such clear gaps. Dr. Shapiro and Dr. Blackwell's opinions are from early 2014. They make reference to the fact that there was no hospitalization or significant treatment of plaintiff's psychiatric problems. Clearly, that changed dramatically after the issuance of those opinions. In my view, there should have been either a new consultative exam ordered or, at the very least, those consultative sources should have been recontacted for clarification given the deterioration of plaintiff's condition.

This case is similar in many respects to Bulger v. Astrue, 2009 WL 1924767, where, again, there was a similar gap in the record and outdated opinions that were relied on by the Administrative Law Judge. The Court concluded that the ALJ should have requested that the doctors update their respective reports to include multiple subsequent medical events.

So I am going to grant judgment on the pleadings to the plaintiff, vacate the Commissioner's determination and remand the matter with specific instructions that updated mental status opinions be obtained. I do not find persuasive evidence of disability, so the remand will be without a directed finding of disability for purposes of calculation of benefits.

Thank you both for excellent presentations and I hope you have a good afternoon.

CERTIFICATE OF OFFICIAL REPORTER

I, HANNAH F. CAVANAUGH, RPR, Official Court Reporter, in and for the United States District Court for the Northern District of New York, DO HEREBY CERTIFY that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.