MICHAEL P. SHEA, District Judge.
In this appeal from the Social Security Commissioner's denial of benefits, Richard Rozanski argues that the Administrative Law Judge ("ALJ") erred in (1) evaluating the medical opinion evidence related to Mr. Rozanski's mental impairments; and (2) failing to explain why he found that Mr. Rozanski's testimony was not credible. He also asserts that the Appeals Council failed to apply the appropriate standard for considering new evidence. I agree with Mr. Rozanski's first two arguments and remand the case to the Commissioner.
I assume the parties' familiarity with Mr. Rozanski's medical history (summarized in a stipulation of facts filed by the parties, ECF No. 18, which I adopt and incorporate herein by reference), the ALJ's opinion, the record, and the five sequential steps used in the analysis of disability claims. I cite only those portions of the record and the legal standards necessary to explain this ruling.
"A district court reviewing a final . . . decision pursuant to . . . 42 U.S.C. § 405(g), is performing an appellate function." Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). "The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Accordingly, a district court may not make a de novo determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the court's function is to ascertain whether the correct legal principles were applied in reaching the decision, and whether the decision is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). If the Commissioner's decision is supported by substantial evidence, that decision will be sustained, even where there may also be substantial evidence to support the plaintiff's contrary position. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982). The Second Circuit has defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citation and quotation marks omitted). Substantial evidence must be "more than a mere scintilla or a touch of proof here and there in the record." Id.
Mr. Rozanski argues that the ALJ improperly assigned "little weight" to the opinions of his treating psychiatrist and a physician's assistant while assigning "great weight" to the opinion of a consulting psychologist and "some weight" to non-examining state agency consultants. I find that the ALJ failed to adequately explain his reasoning for assigning "little weight" to the opinion of Mr. Rozanski's treating psychiatrist and that his conclusion was not supported by substantial evidence in the record. I therefore remand on that ground without reaching his other arguments as to medical opinion evidence.
Under the treating physician rule, "the opinion of a claimant's treating physician as to the nature and severity of the impairment is given controlling weight so long as it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (internal citation and quotation marks omitted).
Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (internal citations, quotation marks, and alterations omitted). "The failure to provide good reasons for not crediting the opinion of a claimant's treating physician is a ground for remand." Id. Nonetheless, "slavish recitation of each and every factor [is not required] where the ALJ's reasoning and adherence to the regulation are clear." Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013).
Mr. Rozanski asserts that the ALJ erred by assigning "little weight" to the opinion of Dr. Christopher Yergen, his treating psychiatrist. Dr. Yergen completed two Mental Health Impairment Questionnaires jointly with Mr. Rozanski's therapist, Linda U McEwen, LCSW. R. 1495-99; 1506-10.
On March 30, 2015, Dr. Yergen opined that Mr. Rozanski had "[m]arked" limitations across a variety of domains, including the ability to "[c]arry out detailed instructions," "[s]ustain ordinary routine without supervision," [c]omplete a workday without interruptions from psychological symptoms," and "[p]erform at a consistent pace without rest periods of unreasonable length or frequency." R. 1509. He estimated that Mr. Rozanski's impairments would cause him to be absent from work "[m]ore than three times per month." Id. A vocational expert testified that an individual who was consistently out of work one or two times per month "would probably not be employable" in the national economy. R. 99.
The ALJ assigned "little weight to Dr. Yergen's opinion." R. 43. He explained that the opinion was "inconsistent with the overall evidence" because "the claimant is generally intact cognitively and his suicidal thoughts are attributable to his medication noncompliance." Id. Further, the ALJ explained that Dr. Yergen's opinion was "inconsistent with the claimant's level of daily activities, which involves caring for himself, household chores and helping care for his younger children." Id. at 44. Finally, the ALJ noted that Dr. Yergen's opinion was inconsistent with the opinion of examining consultative psychologist Dr. Hart, whose opinion he gave "great weight."
I find that the ALJ's discussion of Dr. Yergen's opinion neither addresses the Greek factors nor provides a basis from which to infer that he considered those factors without discussing them explicitly. Specifically, the ALJ did not address the length or frequency of Dr. Yergen's treatment of Mr. Rozanski or acknowledge whether Dr. Yergen was a specialist. The ALJ cited Dr. Yergen's opinions where that information was identified. See R. 1506 (listing the date of first treatment as February 28, 2011 and citing "weekly" psychotherapy and "psychiatric . . . management every 2-3 months or as needed"); R. 1510 (listing Dr. Yergen's specialty as psychiatry). But both factors weigh in favor of giving Dr. Yergen's opinion greater weight, and there is no mention of them in the decision. Without an explanation of how the ALJ considered these factors, then, I cannot determine whether he properly applied the law or whether his conclusions were supported by substantial evidence.
The evidence the ALJ cites from the record in support of his decision to give Dr. Yergen's opinion "little weight" does not contradict Dr. Yergen's opinion. The ALJ found that Dr. Yergen's opinion was "inconsistent with the overall evidence." He points to records showing that (1) Mr. Rozanski was "generally intact cognitively"; (2) Mr. Rozanski's suicidal ideation was the result of "medication noncompliance"; (3) Mr. Rozanski's "depression had returned to baseline"; and (4) Mr. Rozanski was able to care for himself, complete household chores, and help care for his children. R. 43-44. None of these assertions contradicts Dr. Yergen's opinion.
First, Mr. Rozanski could reasonably have the deficits Dr. Yergen identified even if he was "intact cognitively." Mr. Rozanski was diagnosed with bipolar disorder, which the ALJ acknowledged was one of his severe impairments. (ECF No. 18 at 2, 5, 8, 18; R. 33). Bipolar disorder is characterized by alternating periods of mania and depression. Am. Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders 123-126 (5th ed. 2013).
Second, the ALJ explained that Mr. Rozanski's "suicidal thoughts [were] attributable to his medication noncompliance." R. 43. Dr. Yergen's opinion noted that several of Mr. Rozanski's symptoms occurred only "if off meds." R. 1507. Notably, though, Dr. Yergen did not attribute Mr. Rozanski's depressed mood, anxiety, suicidal ideation, difficulty thinking or concentrating, or intrusive recollections of a traumatic experience to medication noncompliance. Id. Moreover, the DSM-5 notes that treatment noncompliance is common among individuals diagnosed with bipolar I disorder. Am. Psychiatric Assoc. supra, at 129 (explaining under "Associated Features Supporting Diagnosis" of bipolar I disorder that "[d]uring a manic episode, individuals often do not perceive that they are ill . . . and vehemently resist efforts to be treated"). As a result, Mr. Rozanski's medication noncompliance may be a significant feature of his mental disorder. If the ALJ concluded that Dr. Yergen failed to consider the effect of the noncompliance on Mr. Rozanski's ability to work, he did not explain that conclusion, and such a conclusion would require an explanation given that most of the symptoms found by Dr. Yergen, including Mr. Rozanski's suicidal thoughts, were not qualified with the notation "if off meds." R. 1507. The ALJ thus failed to provide "good reasons" for disregarding Dr. Yergen's opinion.
Third, the ALJ asserts that a single recent treatment note indicated that Mr. Rozanski's depression had "returned to baseline." R. 34; see R. 1774. First, the treatment note in question, though difficult to read, appears to refer to "daily thoughts of suicide"— hardly a basis for rejecting Dr. Yergen's opinion on the functional limitations stemming from Mr. Rozanski's depression. R. 1774. Second, even if the note shows improvement, it is just a single snapshot, which does not constitute substantial evidence for a finding of functional capacity in an individual with bipolar disorder. Emotional lability is a hallmark of bipolar I disorder. Am. Psychiatric Assoc., supra, at 127. Thus, patients with the disorder "may shift very rapidly to anger or depression." Id. The record shows that Mr. Rozanski was consistently depressed or anxious at appointments until shortly before the May 5, 2016 appointment reflected in the note on which the ALJ relies. Compare R. 1774 (showing "baseline" depression on 5/5/2016), with R. 1773 (showing mood and affect "depressed" on 5/3/2016); R. 1770 (showing mood and affect "depressed" on 4/19/2016); R. 1767 (showing mood "anxious" on 3/30/2016); R. 1765 (showing mood "anxious" on 3/14/2016). Mr. Rozanski's mood at a single treatment session (to the extent it was improved) does not contradict Dr. Yergen's assessment based on a years-long treatment relationship and expertise in psychiatry, particularly given that mood fluctuations are typical for individuals with Mr. Rozanski's condition. See Matta v. Astrue, 508 F. App'x 53, 57 (2d Cir. 2013) ("We recognize that a person suffering from bipolar disorder may be vulnerable to violent mood swings resulting in better days and worse days, and that a claimant's stability on some days does not necessarily support the conclusion that he is able to work every day.") (internal quotation marks omitted).
Fourth, Mr. Rozanski's ability to complete household chores and care for his children is not inconsistent with the impairments that Dr. Yergen described. Dr. Yergen opined that Mr. Rozanski experienced "episodes of decompensation or deterioration in a work or work-like setting. . . ." R. 1508 (emphasis added). He explained that Mr. Rozanski "[a]voids all business-related activities, does not go into any public settings, and experience[s] increased anxiety when he must do so." Id. Thus, Mr. Rozanski's ability to function normally in his own home does not contravene Dr. Yergen's opinions about his ability to function in a work setting.
Finally, the ALJ assigned "little weight" to Dr. Yergen's opinion in part because he concluded that the opinion was "inconsistent with that of Dr. Hart," an examining psychologist whose opinion was given "great weight." R. 44. Dr. Hart opined that Mr. Rozanski's "attention, concentration, and short-term memory all seem[ed] to be intact," and that "he is able to complete tasks such as helping around the house and doing some cleaning. . . ." R. 1447. He concluded that Mr. Rozanski's symptoms were inconsistent with a diagnosis of posttraumatic stress disorder but explained that his "primary symptoms were clearly a significant mood disorder and no doubt he has visions [related to his suicide attempt] as it was very traumatic." Id. Dr. Hart did not offer any specific opinion on Mr. Rozanski's ability to function in a work environment. An ALJ may weigh valid medical opinions against one another. He may not, however, set aside a treating source opinion based on his own inferences. Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) ("Although an ALJ is free to resolve issues of credibility as to lay testimony or to choose between properly submitted medical opinions, he is not free to set his own expertise against that of a physician who submitted an opinion to or testified before him.") (internal quotation marks and alterations omitted). Here, the ALJ set aside Dr. Yergen's opinion without citing directly conflicting medical opinion evidence. He thus appears to have "set his own expertise" against that of Dr. Yergen.
In light of Dr. Yergen's opinion that Mr. Rozanski's condition would cause him to be absent three or more times per month, R. 1510, and the vocational expert's testimony that such an individual would not be employable in the national economy, R. 99, I cannot conclude that the ALJ's error was harmless. Remand is thus appropriate to allow the ALJ to weigh the medical opinion evidence under the correct standard.
Mr. Rozanski next contends that the ALJ failed to make an explicit finding about the credibility of his testimony at the hearing. I find that this constitutes a basis for remand as well. In evaluating a claimant's testimony, an ALJ must determine whether "the evidence establishes a medically determinable impairment that could reasonably be expected to produce the [claimant's] symptoms. . . ." SSR 16-3p, 2016 WL 1119029.
The ALJ failed to apply the treating physician rule to the opinion of Dr. Yergen. Accordingly, Mr. Rozanski's motion, ECF No. 14, is GRANTED in part and DENIED in part and the Commissioner's motion, ECF No. 19, is DENIED. The case is hereby REMANDED to the Commissioner for further proceedings consistent with this opinion.
IT IS SO ORDERED.
