MEMORANDUM & ORDER

PAMELA K. CHEN, District Judge.

Plaintiff Nicholas R. Hanlon commenced this action under 42 U.S.C. § 405(g), seeking judicial review of the decision of the Commissioner of the Social Security Administration ("SSA") denying his claim for Disabled Adult Child ("DAC") Benefits. Before the Court are the parties' cross-motions for judgment on the pleadings. (Dkts. 14, 17.) For the reasons set forth below, the Court grants Plaintiff's motion for judgment on the pleadings and denies the Commissioner's cross-motion. This case is remanded for further proceedings consistent with this Memorandum & Order.

BACKGROUND

I. Procedural History

On March 23, 2015, Plaintiff filed an application for DAC benefits and Supplemental Security Income ("SSI"), alleging that he had been disabled as of February 19, 1997. (Administrative Transcript ("Tr."), Dkt. 12, at 147, 258-74.) His application was denied. (Id. at 177-79, 201-03.) After requesting a hearing (id. at 213), Plaintiff appeared before Administrative Law Judge ("ALJ") Eric Eklund on September 28, 2017 (id. at 74). In a decision dated February 7, 2018, the ALJ determined that as of March 23, 2015, the date of Plaintiff's application, Plaintiff was disabled and entitled to SSI; however, the ALJ determined that Plaintiff was not disabled prior to March 23, 2015, which covers the relevant period for purposes of Plaintiff's DAC benefits claim, i.e., between the alleged onset date, February 19, 1997, and the date Plaintiff turned twenty-two, August 8, 2008 [the "DAC Benefits Period"].2 (Id. at 13-27.) Thereafter, Plaintiff requested review of the ALJ's decision, and the SSA declined that request on October 17, 2018. (Id. at 1-5.) Plaintiff timely3 filed the instant action, challenging the denial of DAC benefits. (See generally Complaint, Dkt. 1.)

II. The ALJ Decision4

"The Social Security Act provides disability insurance benefits for a disabled adult child . . . if the claimant is 18 years old or older and has a disability that began before the claimant became 22 years old."5 Doerr v. Colvin, No. 13-CV-429 (JTC), 2014 WL 4057446, at *3 (W.D.N.Y. Aug. 14, 2014) (internal quotation marks and brackets omitted) (quoting 20 C.F.R. § 404.350(a)(5)). The eligibility determination with respect to DAC benefits focuses on the period between the alleged onset date and the claimant's twenty-second birthday. "In the context of determining eligibility for disabled adult child's benefits, the term `disability' has substantially the same definition as it does in traditional, adult disability cases." Id.; see also Priel v. Astrue, 453 F. App'x 84, 86 (2d Cir. 2011) (summary order) (applying the definition of disability for adults and a five-step inquiry set out infra to the analysis of DAC benefits).

In evaluating disability claims, the ALJ must adhere to a five-step inquiry. 20 C.F.R. § 404.1520(a)(2). The claimant bears the burden of proof in the first four steps of the inquiry; the Commissioner bears the burden in the final step. Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). First, the ALJ determines whether the claimant is currently engaged in "substantial gainful activity." 20 C.F.R. § 404.1520(a)(4)(i). If the answer is yes, the claimant is not disabled. If the answer is no, the ALJ proceeds to the second step to determine whether the claimant suffers from a "severe impairment." 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is severe when it "significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). If the impairment is not severe, then the claimant is not disabled. 20 C.F.R. § 404.1520(b). In this case, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 19, 1997, when Plaintiff was ten years old, and that Plaintiff suffered from the following severe impairments: "depressive disorder; anxiety disorders; obsessive-compulsive disorder; attention deficit hyperactivity disorder (ADHD); cervical and lumbar degenerative disc disease with cervical radiculopathy and shallow disc bulges at L5-S1; bilateral sensory neuropathy in the upper and lower extremities; Ehler's Danoff [sic] syndrome6; and history of seizures." (Tr. at 16.)

Having determined that Plaintiff satisfied his burden at the first two steps, the ALJ proceeded to the third step, at which the ALJ considers whether any of the claimant's impairments meet or equal the severity of one of the impairments listed in the Social Security Act's regulations (the "Listings"). 20 CFR § 404.1520(a)(4)(iii); see also 20 C.F.R. Pt. 404, Subpt. P, App. 1. Here, the ALJ concluded that none of Plaintiff's impairments met or medically equaled the severity of any of the impairments in the Listings. (Tr. at 16.) Moving on to the fourth step, the ALJ found that prior to March 23, 2015, which covers the DAC Benefits Period, Plaintiff had the residual functional capacity ("RFC")7 to perform "light work" as defined in 20 C.F.R. § 404.1567(b).8 (Id. at 18.) Qualifying his RFC determination, the ALJ noted that Plaintiff

(Id.)

The ALJ then determined that Plaintiff had no past relevant work. (Id. at 24.) The ALJ proceeded to step five. At step five, the ALJ must determine whether the claimant—given his RFC, age, education, and work experience—has the capacity to perform other substantial gainful work in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). In this case, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff was capable of performing prior to March 23, 2015, namely: (1) cleaner, which has an availability of 190,000 jobs; (2) bench assembler, which has an availability of 140,000 jobs; and (3) marker,9 which has an availability of 165,000 jobs. (Tr. at 25.) As such, the ALJ found that prior to March 23, 2015 and, in effect, during the DAC Benefits Period, Plaintiff was not disabled under the Act. (Id. at 26.)

STANDARD OF REVIEW

Unsuccessful claimants for disability benefits under the Social Security Act may bring an action in federal district court seeking judicial review of the Commissioner's denial of their benefits. 42 U.S.C. § 405(g). In reviewing a final decision of the Commissioner, the Court's role is "limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera, 697 F.3d at 151 (internal quotation marks and citation omitted). "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (internal quotation marks, citation, and brackets omitted). In determining whether the Commissioner's findings were based upon substantial evidence, "the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn." Id. (internal quotation marks and citation omitted). However, the Court "defer[s] to the Commissioner's resolution of conflicting evidence." Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012). If there is substantial evidence in the record to support the Commissioner's findings as to any fact, those findings are conclusive and must be upheld. 42 U.S.C. § 405(g).

DISCUSSION10

I. Listing Determination

Plaintiff contends that the ALJ erred at the third step by determining that Plaintiff's mental impairments did not meet or equal the severity of Listing 12.04. (Pl.'s Br., Dkt. 14-2, at 14-17.) The ALJ found that Plaintiff did not demonstrate a marked limitation11 in at least two areas of mental functioning listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(B). (Tr. at 18.) The Court finds that the ALJ's determination was not supported by substantial evidence.

"[A] court has the power to uphold an ALJ's conclusion at step three of the analysis in the absence of an express rationale where portions of the ALJs decision and the evidence before him indicate that his conclusion was supported by substantial evidence." Perozzi v. Berryhill, 287 F.Supp.3d 471, 482 (S.D.N.Y. 2018) (quoting Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982)) (internal quotation marks and alterations omitted). However, "where credibility determinations and inference drawing [are] required of the ALJ to form his conclusion at step three, then remand for the ALJ to explain his reasoning is required." Id. at 483 (internal quotation marks and citations omitted).

The ALJ determined specifically that "[b]efore [March 23, 2015,] the severity of the claimant's mental impairments, considered singly and in combination, do not meet or medically equal the criteria of listing 12.04." (Tr. at 15, 17.) Yet, the ALJ mostly relied on Plaintiff's activities after March 23, 2015 in making this determination. For instance, when analyzing the function of concentrating, persisting, or maintaining pace, the ALJ relied on Plaintiff's testimony that the last book he read was The Art of War "in the last year or two" (id. at 94-95) and extrapolated that Plaintiff enjoyed reading, "which [was] supportive of less than marked limitations. . . ." (Id. at 17.) However, whether Plaintiff enjoys reading now does not bear on the question of whether Plaintiff had marked limitations in his ability to concentrate prior to the age of twenty-two. The ALJ also relied on an April 27, 2015 consultative examination that found Plaintiff's concentration intact (id. at 427) and that Plaintiff was able to drive at that time (id. at 18). These results similarly do not support a finding that Plaintiff was able to concentrate before March 23, 2015 and, more specifically, during the DAC Benefits Period.

Similarly, the ALJ concluded that Plaintiff had only a moderate limitation in adapting or managing oneself "before [March 23, 2015]." (Id. at 15, 18). The ALJ relied on Plaintiff's appearance and grooming during his field office interview on March 23, 2015 (id. at 293-94) and Plaintiff's April 3, 2015 report that he cooks sometimes and lives alone (id. at 313-15, 323)— again, information that postdates the DAC Benefits Period.

The ALJ's conclusion that Plaintiff's severe impairments prior to March 23, 2015 did not meet or equal the Listings, therefore, was not based on relevant evidence. Remand is warranted when the ALJ's analysis misconstrues the record and is not supported by substantial evidence. See Fruhling v. Colvin, No. 15-CV-4417 (BMC), 2016 WL 4097085, at *1-2 (E.D.N.Y. July 30, 2016) (finding the ALJ's decision on DAC benefits was not supported by substantial evidence, where the ALJ mainly relied on plaintiff's current characteristics in determining childhood disability); Stover v. Comm'r of Soc. Sec., No. 04-CV-1467 (NAM) (GHL), 2008 WL 4283421, at *9 (N.D.N.Y. Sept. 16, 2008) (finding the ALJ's conclusion at step three was not based on substantial evidence where the ALJ misstated the record). Therefore, the Court finds that remand is necessary for the ALJ to properly analyze whether Plaintiff's pre-March 23, 2015 impairments met or equaled the severity of Listing 12.04.

II. Treating Physician Rule

Plaintiff contends that the ALJ failed to accord proper weight to his treating physician's opinion regarding Plaintiff's mental impairments prior to his twenty-second birthday and failed to re-contact the treating physician regarding deficiencies or inconsistencies in the opinion perceived by the ALJ.12 (Pl.'s Br., Dkt. 14-2, at 17-20, 21-23.)

"With respect to the nature and severity of a claimant's impairments, the SSA recognizes a treating physician rule of deference to the views of the physician who has engaged in the primary treatment of the claimant." Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (internal quotation marks, brackets, and citations omitted).13 As the Second Circuit has explained:

Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (internal quotation marks, brackets, and citations omitted).

"Before the ALJ can disregard a treating physician's medical opinion, the ALJ must first ask the treating physician to clarify the deficiencies the ALJ perceives in that opinion." Austin v. Comm'r of Soc. Sec., No. 18-CV-331 (PKC), 2019 WL 4751808, at *6 (E.D.N.Y. Sept. 30, 2019) (citation omitted). "[T]he ALJ must seek additional evidence or clarification when the report from [the] claimant's medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques." Calzada v. Astrue, 753 F.Supp.2d 250, 269 (S.D.N.Y. 2010) (internal quotation marks and brackets omitted); see also Wilson v. Colvin, 107 F.Supp.3d 387, 407 (S.D.N.Y. 2015) ("Legal errors regarding the duty to develop the record warrant remand." (collecting cases)).

Furthermore, while an ALJ is entitled to disregard the opinion of a claimant's treating physician after giving the physician the opportunity to correct the deficiencies in her medical reports, the ALJ must make clear that this decision is based on conclusions made by other medical professionals. See Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) ("The ALJ is not permitted to substitute his own expertise or view of the medical proof for the treating physician's opinion or for any competent medical opinion."); Hillsdorf v. Comm'r of Soc. Sec., 724 F.Supp.2d 330, 347 (E.D.N.Y. 2010) ("Because an RFC determination is a medical determination, an ALJ who makes an RFC determination in the absence of supporting expert medical opinion has improperly substituted his own opinion for that of a physician, and has committed legal error.").

The ALJ recognized Dr. Shafiq Khokhar, a neuro-psychiatrist, as Plaintiff's current treating physician since 2014. (Tr. at 23, 607.) However, the ALJ disregarded Dr. Khokhar's opinion that Plaintiff's "impairments [had] limited [Plaintiff] since the age of 10," finding this opinion inconsistent with the fact that Plaintiff had only commenced mental health treatment in 2014. (Id. at 23.) The ALJ further argued that there were no records that supported Plaintiff's mental health deficits in his adolescent years, other than the one hospitalization around the time of the alleged onset date. (Id.) This was error.

First, a treating physician's retrospective opinion should not be discounted merely because the physician did not treat Plaintiff during the DAC Benefits Period. "The retrospective opinion of a doctor who is currently treating a claimant is entitled to significant weight even though the doctor did not treat the claimant during the relevant period." Martinez v. Massanari, 242 F.Supp.2d 372, 377 (S.D.N.Y. 2003) (internal quotation marks and citation omitted); see Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir. 1981) ("While [the current treating physician] did not treat the appellant during the relevant period before [the date last insured], his opinion is still entitled to significant weight."); McAllister v. Colvin, 205 F.Supp.3d 314, 332 (E.D.N.Y. 2016) ("[E]ven if [the treating physician] did not treat plaintiff during the period prior to plaintiff's date last insured, that fact alone does not show that [the treating physician's] opinion warrants no consideration or weight."). In fact, "[p]sychiatric illnesses . . . tend not to strike like lightning, they are progressive, and for that reason are often particularly well-suited to retrospective diagnosis, especially where a psychiatric record has been maintained." Adorno v. Halter, No. 99-CV-2758 (HB), 2002 WL 59422, at *3 (S.D.N.Y. Jan. 16, 2002) (citation omitted).

Having treated Plaintiff for three years, Dr. Khokhar had substantial knowledge about Plaintiff's mental health history. (Tr. at 23.) "It is axiomatic that a treating psychiatrist must consider a patient's subjective complaints in order to diagnose a mental disorder. . . . [C]onsideration of a patient's report of complaints, or history, as an essential diagnostic tool, is a medically acceptable clinical and laboratory diagnostic technique." Santana v. Astrue, No. 12-CV-815 (BMC), 2013 WL 1232461, at *14 (E.D.N.Y. Mar. 26, 2013) (internal quotation marks, citation, and alterations omitted); see also id. at *13 ("[T]here is nothing improper about the diagnostic method of using the patient's subjective opinion of her depression in order to identify the onset of the plaintiff's mental disability." (citations omitted)). Therefore, the ALJ should not have disregarded Dr. Khokhar's opinion about Plaintiff's pre-2014 mental impairments, without "contradictory medical evidence or overwhelmingly compelling non-medical evidence." Butler v. Colvin, No. 13-CV-352 (DRH), 2014 WL 6909529, at *14 (E.D.N.Y. Dec. 4, 2014) ("Although [the treating physician] began treating Plaintiff after the date last insured, his retrospective opinion should nevertheless have been afforded significant weight by the ALJ in the absence of contradictory medical evidence or overwhelmingly compelling non-medical evidence.").

Second, failure to seek treatment does not constitute substantive evidence to discount the treating physician's opinion. "[Delay in treatment] is not so remarkable when dealing with mental illnesses such as PTSD and adjustment disorder, which often go untreated for long periods of time." Plumley, 2010 WL 520271, at *10; see also Shaw v. Chater, 221 F.3d 126, 133 (2d Cir. 2000) ("Just because plaintiff's disability went untreated does not mean he was not disabled."); Cataneo v. Astrue, No. 11-CV-2671 (KAM), 2013 WL 1122626, at *20 (E.D.N.Y. Mar. 17, 2013) ("The inference [that a claimant's failure to seek treatment undermines his disability claim] is less plausible for an individual with a mental impairment with symptoms that include social anxiety and isolation."). It is obvious that persons suffering from mental illness frequently do not seek treatment because of the effects of the disease itself, which make them unaware of their disease or resistant to treatment. Any inference drawn from the delay in treatment, therefore, does not constitute substantial evidence for the conclusion that Plaintiff was not disabled. Id. at *19.

"[T]he Second Circuit has attributed significant probative value to retrospective opinions from treating physicians that are not otherwise undermined by conflicting medical or circumstantial evidence." Id. at *21 (citations omitted). When "[t]here is no objective medical evidence that contradicts [the treating physician's] opinion, and the weight of the contrary circumstantial evidence cited by [the ALJ] is questionable," the treating physician's retrospective opinion should be accorded significant weight. Id. The ALJ does not provide any other reason for discounting the treating physician's opinion, aside from the retrospective nature and Plaintiff's delay in seeking treatment. While there is no contemporaneous medical evidence that affirms the existence of mental disability other than the 1997 hospitalization (Tr. at 23), there is also no contemporaneous medical evidence during the DAC Benefits Period that contradicts a finding of mental disability. Under such circumstances, the treating physician's retrospective opinion should be accorded significant weight. Cataneo, 2013 WL 1122626, at *19-21 (finding that the treating physician's retrospective opinion should be accorded significant weight when "there is no affirmative evidence of either disability or non-disability from the [r]elevant [p]eriod" and noting that the ALJ should not have inferred from the delay in treatment that Plaintiff was not disabled during the relevant period).

To the extent that the ALJ relied on any inconsistencies the ALJ perceived between Dr. Khokhar's opinion and the record,14 the ALJ should have sought clarification from Dr. Khokhar about the inconsistencies. See Austin, 2019 WL 4751808, at *6; Caplan v. Astrue, No. 05-CV-3695 (DLI) (JMA), 2009 WL 691922, at *7 (E.D.N.Y. Mar. 15, 2009) ("Thus, to the extent the ALJ intended to discredit [the treating physician's] conclusions based on the sufficiency of the evidence, the ALJ had a duty to pursue whether [the treating physician], indeed, had sufficient evidence to support her conclusions.").

Therefore, the Court finds that remand is warranted to enable the ALJ to accord Dr. Khokhar's opinion proper weight, or at the very least, seek clarification from Dr. Khokhar regarding any deficiencies the ALJ perceives in his opinion.

CONCLUSION

For the reasons set forth above, the Court grants Plaintiff's motion for judgment on the pleadings and denies the Commissioner's cross-motion. The Commissioner's decision is remanded for further consideration and new findings consistent with this Memorandum & Order. The Clerk of Court is respectfully requested to enter judgment and close this case.

SO ORDERED.