MARGO K. BRODIE, District Judge.
Plaintiff Tony Corona filed the above-captioned action pursuant to 42 U.S.C. § 405(g) seeking review of a final decision of the Commissioner of Social Security (the "Commissioner") denying his claim for supplemental security income under the Social Security Act (the "SSA"). Plaintiff moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, claiming that Administrative Law Judge Kieran McCormack (the "ALJ") erred by improperly weighing the evidence in determining Plaintiff's residual functional capacity ("RFC") and improperly assessing Plaintiff's credibility. (Pl. Mot. for J. on the Pleadings, Docket Entry No. 9; Pl. Mem. in Supp. of Pl. Mot. ("Pl. Mem."), Docket Entry No. 10.) Plaintiff also argues that the Appeals Council failed to consider new and material evidence. (Id.) The Commissioner cross-moves for judgment on the pleadings, arguing that the Court should affirm the ALJ's decision because it is supported by substantial evidence. (Comm'r Cross-Mot. for J. on the Pleadings, Docket Entry No. 12; Comm'r Mem. in Opp'n to Pl. Mot. and in Supp. of Comm'r. Cross-Mot. ("Comm'r Mem."), Docket Entry No. 13.) For the reasons set forth below, Plaintiff's motion for judgment on the pleadings is granted, the Commissioner's cross-motion for judgment on the pleadings is denied, and the case is remanded for further proceedings consistent with this Memorandum and Order.
Plaintiff was born in 1981. (Certified Admin. Record ("R.") 23, 105, 370, Docket Entry No. 8.) Plaintiff has an eleventh-grade education. (R. 23.) Between 2001 and 2008, Plaintiff was employed part-time through a temporary staffing service, where he loaded and unloaded trucks, programed cellular telephones and performed other warehouse work. (R. 48-49, 106-07, 119-20, 411, 429-31.) Plaintiff has not worked since approximately January of 2008 because of a physical injury. (R. 17-18.) On February 4, 2013, Plaintiff applied for supplemental security income benefits, alleging disability as of February 4, 2013 because of a learning disability, anger problems, depression, problems sleeping and pain in the left side of the neck, middle of the back and left arm.
During the May 1, 2014 hearing before ALJ Stefanelli, Plaintiff testified that he was last employed in 2008. (R. 105-06.) Plaintiff worked for approximately five-to-six months for a warehouse, where his duties included loading and unloading trucks and programming cellular telephones with an automatic upload. (R. 106-07, 120.) Plaintiff performed his warehouse work independently, only interacting with his manager. (R. 121-22.) Plaintiff ceased working in 2008 because he was injured on his way to work when he slipped on ice and fell. (R. 107-08.) Plaintiff testified that but-for his injury, he would be able to work his prior warehouse job but later in the hearing explained that he might have difficulty attending work regularly because of "everything I've been through, like I'm just tired of everything." (R. 112, 131.) Plaintiff then discussed his mental impairments, which caused him to "stop[] caring about anything." (R. 113.) Plaintiff witnessed a very close friend's murder in the summer of 2011 and participated as a witness during the criminal conviction of the shooter. (R. 113-14.)
When ALJ Stefanelli asked Plaintiff when his mental impairments began, he explained that his mother told him he had a "learning problem" when he was a child and that even when he was working he was unhappy about everything else in his life. (R. 115, 119.) Plaintiff estimated that he retreated from social contact in 2009. (R. 115-16.) Plaintiff avoids people when he goes outside, and he suffers from panic attacks when he is close to people. (R. 118, 121.) Plaintiff has trouble sleeping. (R. 118.) Plaintiff has a weak appetite, causing him to go days without eating at some points and, as a result, he has lost between twenty and thirty pounds since 2011. (R. 125-26.) He has anger issues, mostly with people in his neighborhood that knew about the shooting of his good friend, but he walks away from them when he begins to become upset. (R. 128-29.) Plaintiff also expressed difficulty with concentrating, social interactions and memory.
Plaintiff began treatment for his mental impairments in 2013, after his family and friends encouraged him to seek treatment and apply for disability benefits. (R. 130.) Plaintiff sees therapist Jennifer Salto, LMSW, biweekly. (R. 114.) Plaintiff sees psychiatrist Faisal Chaudhry, M.D., once every three to four weeks. (R. 114.) Plaintiff explained that he discussed medications with his psychiatrist but that pain medication previously caused him to become sick, so he is not currently taking any psychiatric medications. (R. 116-17.)
During a December 9, 2014 hearing before the ALJ, Plaintiff reiterated that he worked part-time through temporary employment agencies between 2001 and 2008 until he fell and was injured on his way to work in 2008. (R. 48-50.) Plaintiff was diagnosed with depression and post-traumatic stress disorder ("PTSD"), which he has suffered from since he "was younger." (R. 58.) Plaintiff does not take any psychiatric medications. (R. 58.) Plaintiff suffered from dizziness as a side effect of pain medication. (R. 58.) Plaintiff continued to see Dr. Chaudhry but said of the treatment, "it's not really doing nothing." (R. 59.)
Plaintiff explained that he struggled with sleep and would sleep at odd times of the day as a result. (R. 60.) Plaintiff only sleeps between three and four hours at a time. (R. 60-61.) Plaintiff spends most of his time in his room watching television or on his computer unless he has an appointment. (R. 62-63.) He often does not feel like eating. (R. 62.) Plaintiff occasionally goes to the store, but if he sees a crowd in the store he will not enter. (R. 64.) When Plaintiff socializes with friends he does not talk, and his friends inquire whether something is wrong. (R. 64.) Plaintiff becomes anxious in crowds, even sometimes of two or three people, and he has anxiety and panic attacks. (R. 67.) He could not identify any specific triggers that result in the anxiety or panic attacks. (R. 68.) Plaintiff has not been hospitalized for a panic attack.
In relevant part, the vocational expert testified during the December 9, 2014 hearing that a person with Plaintiff's physical limitations is limited to low stress work, defined as requiring no more than simple, routine, repetitive tasks with few, if any, workplace changes and only occasional interactions with supervisors, co-workers and/or the general public. The vocational expert testified that such a person could work as a marker, domestic laundry worker or laminating machine off-bearer. (R. 72-74.) The vocational expert testified that the jobs he found available for someone of Plaintiff's RFC limitation were jobs "working basically alone, that you wouldn't be working in tandem with anyone else." (R. 76.) The same jobs would be possible for someone who was limited to "only casual non-intense contact with others." (R. 81.) However, an individual who could not have casual non-intense contact or could not deal with a supervisor or had to work completely alone, could not perform any work. (R. 83, 87, 88-89.) Similarly, an individual who would be absent from work two or three times during a month would not be able to sustain work. (R. 93-94.)
On April 24, 2013, Plaintiff went to Woodhull and told them that he needed a doctor for social security disability. (R. 538.) Plaintiff explained that he felt depressed and had a poor appetite and previously had thoughts of suicidal ideation. (R. 539.) On prior occasions, Plaintiff self-inflicted wounds to ease his stress then began substituting tattoos and body piercing to ease his stress. (R. 539.) Plaintiff scored sixteen on the PHQ9,
The next day, April 25, 2013, Plaintiff was evaluated by Jennifer Felsher, LMSW. (R. 675.) Plaintiff was found to be in a "depressed mood, blunted affect" but otherwise was alert and oriented as to time, place and person and denied having suicidal or homicidal ideations and hallucinations. (R. 675.) Plaintiff denied prior suicide attempts. (R. 675.) Plaintiff scored nineteen on the PHQ9. (R. 675.) Plaintiff reported loss of interest, depressed mood, anger, lack of energy, poor appetite, loneliness, forgetfulness and anxiety. (R. 675.) Plaintiff declined psychiatric medication. (R. 676.)
On June 3, 2013, Marie Josee Cadet, a Nursing Assistant for Woodhull, noted in Plaintiff's screening that during the past two weeks he had "not had less interest and/or pleasure in doing things" and had "not been feeling down, depressed and/or hopeless." (R. 689.) Plaintiff returned to Woodhull on June 13, 2016 to request the completion of his social security disability forms and was again examined by Dr. Asanov. (R. 544, 546.) Plaintiff appeared alert and oriented to time, place and person and was not in acute distress. (R. 545.) Plaintiff denied suicidal or homicidal ideations. (R. 546.) Dr. Asanov diagnosed Plaintiff with major depressive disorder and explosive personality disorder. (R. 546.) Dr. Asanov recommended a follow-up with a psychiatrist.
On Plaintiff's psychiatric outpatient initial questionnaire for Woodhull, completed on June 11, 2013, Plaintiff indicated feelings of loneliness, depression, anger, hostility and difficulty trusting others. (R. 653.) Jennifer Sartor, LMSW, completed Plaintiff's social work screening. (R. 655.) Plaintiff reported his history with self-harm as well as his education and work history. (R. 655.) Plaintiff presented as "somewhat guarded," but his affect was appropriate and his speech logical. (R. 655.) Sartor reported Plaintiff's judgment as poor, impulsivity as fair and his eye contact as "o.k." (R. 655.) Plaintiff denied suicidal or homicidal ideations. (R. 655.)
On July 8, 2013, Sartor conducted an individual psychotherapy session with Plaintiff. (R. 656.) Sartor noted that Plaintiff presented as "somewhat withdrawn" but was otherwise alert and oriented to time, place and person and denied perceptual disturbances.
Plaintiff met with Sartor again on July 23, 2013 and her findings were largely consistent with those on July 8, 2013, except that Sartor noted that Plaintiff appeared calm and included a diagnosis of major depressive disorder. (R. 657.) On August 1, 2013 and August 27, 2013, Plaintiff met with Sartor again and her findings were consistent except that Plaintiff presented as "detached" on August 1, 2013 and indicated he was "doing well" on August 27, 2013. (R. 658-59.) On September 17, 2013, Plaintiff was "more expressive than [in the] prior session." (R. 660.) Plaintiff expressed hesitation and anxiety about testifying at the upcoming criminal trial of the person who killed his friend. (R. 660.) On October 3, 2013, Plaintiff reported to Sartor that he testified during the trial and the defendant was convicted.
On November 14, 2013, it appears that Sartor
On February 27, 2014, Dr. Chaudhry, Plaintiff's psychiatrist, examined Plaintiff. (R. 837.) Dr. Chaudhry's mental status examination revealed that Plaintiff was withdrawn, had a depressed and anxious mood, had "poor" short-term memory. (R. 837.) Dr. Chaudhry found that Plaintiff's attention, concentration, "ability to abstract," eye contact, insight and judgment were "fair" while his long-term memory and impulse control were "good." (R. 837.) Plaintiff did not have any suicidal or homicidal ideations and he was alert and oriented with a full, nonlabile affect. (R. 837.) Dr. Chaudhry assigned Plaintiff a global assessment of functioning ("GAF") score of "53/55."
On February 28, 2014, Dr. Chaudhry completed a Treating Physician's Wellness Plan Report. (R. 756-57.) Dr. Chaudhry diagnosed Plaintiff with moderate recurrent major depressive disorder and PTSD as of June 11, 2013 based on clinical findings of depressed and anxious mood, clammy hands and constricted affect. (R. 756.) Dr. Chaudhry also included in his clinical findings that Plaintiff did not have suicidal or homicidal ideations, was alert and oriented and made fair eye contact. (R. 756.) Plaintiff had begun a course of psychotherapy treatment but was not prescribed any psychotropic medications. (R. 756.) Dr. Chaudhry opined that Plaintiff would not be able to work for at least twelve months. (R. 757.)
On April 24, 2014, Sartor completed a Psychiatric Impairment Questionnaire that Chaudhry signed. (R. 826-33.) The questionnaire listed Plaintiff's first treatment date as June 11, 2013. (R. 826.) Plaintiff was diagnosed with prolonged PTSD based on a mental health examination. (R. 826-27.) Plaintiff scored a fifty-five on the GAF. (R. 826.) The report indicated clinical findings of poor memory, sleep and mood disturbance, social withdrawal or isolation, recurrent panic attacks, anhedonia or pervasive loss of interests, intrusive recollections of a traumatic experience, feelings of guilt/worthlessness and hostility and irritability. Sartor noted the most severe or frequent findings were Plaintiff's anxiety and depression. (R. 827-28.) Plaintiff's symptoms included depression, anxiety in crowds, irritability, impulsivity, sleep disturbance and panic attacks. (R. 828.)
Dr. Chaudhry then measured Plaintiff's limitations as to four non-exertional categories:
(1) understanding and memory, (2) sustained concentration and persistence, (3) social interactions, and (4) adaption.
Dr. Chaudhry indicated that Plaintiff experiences episodes of deterioration or decompensation in work or work-life settings that cause him to withdraw and/or experience exacerbation of symptoms, explaining that Plaintiff "has difficulty around other[s] which leads to isolating behavior." (R. 831.) Dr. Chaudhry opined that Plaintiff was capable of tolerating "low stress" work. (R. 831.) Dr. Chaudhry also opined that Plaintiff's symptoms likely would produce "good" and "bad" days and Plaintiff likely would miss about two or three days of work each month. (R. 832-33.) Dr. Chaudhry repeated the most limiting of the findings in a December 8, 2014 letter and indicated that Plaintiff had been in his care since April of 2013. (R. 846.)
On March 1, 2013 Plaintiff was examined by consultative psychiatrist Sally Morcos, Psy. D. (R. 521-25.) Plaintiff reported his prior work history and indicated that he had a learning disability but had completed the tenth grade
Plaintiff denied any psychiatric hospitalizations or outpatient treatment. (R. 521.) Plaintiff reported trouble sleeping, loss of appetite resulting in an unknown amount of weight loss, headaches, frequent sweating, short-term memory deficits, negative thinking and "a lot of hate and anger." (R. 521.) Plaintiff explained that since "he was young," he has seen shadows and sometimes hears sounds "like someone is sitting next to him." (R. 521.) Plaintiff attempted suicide in 2012 and last experienced suicidal ideations a few months before the appointment but was not experiencing suicidal ideations at the time of the appointment. (R. 522.) Plaintiff reported homicidal ideations focused on the person who murdered his friend but he did not have any concrete plans. (R. 522.) Dr. Morcos contacted emergency services and had Plaintiff transferred to Long Island College Hospital for further risk assessment based on his homicidal ideations. (R. 522.)
Dr. Morcos performed a mental status examination and found Plaintiff cooperative and that he "presented with adequate social skills." (R. 523.) Plaintiff appeared well groomed; presented with normal posture and behavior; maintained appropriate eye contact; delivered intelligible, expressive and receptive speech; presented with a coherent and goal directed thought process without evidence of hallucinations, delusions or paranoia; presented an appropriate affect, neutral mood and clear sensorium; and had intact attention and concentration as well as intact recent and remote memory skills. (R. 523.) Dr. Morcos reported poor insight and poor judgment. (R. 523-24.)
Dr. Morcos diagnosed Plaintiff, in relevant part, with adjustment disorder with disturbance of conduct and her prognosis was "guarded," given Plaintiff's feelings of anger, hate and the absence of treatment. (R. 524-25.) Dr. Morcos opined that Plaintiff can follow and understand simple directions and instructions; perform simple tasks independently; maintain attention, concentration and a normal schedule; and learn new tasks and perform complex tasks with supervision. (R. 524.) Dr. Morcos opined that Plaintiff was limited in that he cannot make appropriate decisions, relate with others, or appropriately deal with stress because of his "poor coping skills." (R. 524.) Dr. Morcos recommended psychological therapy to help Plaintiff improve his coping skills. (R. 525.)
On October 7, 2013, Plaintiff was evaluated by FEDCAP Rehabilitation Services, Inc. ("FEDCAP"), a non-profit organization. (R. 566.) As part of FEDCAP's evaluation, Plaintiff was examined by Mehjabeen Ahmed, M.D.
The ALJ incorporated by reference the discussion of the medical evidence and hearing testimony contained in ALJ Stefanelli's prior decision as part of the final decision. (R. 20.) The ALJ conducted the five-step sequential analysis as required by the Social Security Administration under the authority of the SSA.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 4, 2013, the date that Plaintiff identified as the onset of his disability. (R. 16.) At step two, the ALJ found that Plaintiff had the following severe impairments: internal derangement of the left shoulder and osteoarthritis in the cervical spine, major depressive disorder and PTSD. (R. 16.) The ALJ found that Plaintiff's obesity and past history of cannabis use were non-severe and his low back impairment was not medically determinable. (R. 16.) At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meet, or are equal to, the severity of one of the impairments listed in Appendix 1 of the Social Security Regulations. (R. 17.) At step four, the ALJ found that Plaintiff has the mental RFC to perform:
(R. 19.) The ALJ considered Exhibits 23F through 25F, which were not previously considered by ALJ Stefanelli, and determined that they "do not provide any additional support, or basis, for a finding of disability." (R. 20.)
In assessing the opinion evidence, the ALJ assigned "great weight" to most of the opinions of Dr. Chaudhry, Plaintiff's treating psychiatrist, including Plaintiff's "marked limitations in terms of interacting with others, such as co-workers or the general public" and the otherwise "wide range of functionality in work-related activities." (R. 21.) The ALJ considered Dr. Chaudhry's GAF score assessment of fifty-five, his conservative psychiatric treatment regimen and the lack of medication and hospital visits to treat Plaintiff's condition and concluded that Dr. Chaudhry, "as a treating specialist, has depicted a consistent picture of [Plaintiff's] residual mental capacities." (R. 21.) The ALJ gave "lesser weight" to Dr. Chaudhry's finding that Plaintiff likely would be absent from work between two to three times per month because:
(R. 21.)
The ALJ assigned "little weight" to the opinions of Dr. Morcos, the psychological consultative examiner, who found Plaintiff could not make appropriate decisions, relate with others or appropriately deal with stress. (R. 22.) The ALJ found that such limitations "appear to have been based solely on the homicidal ideation that the claimant expressed to Dr. Morcos," which were "not repeated to any other source within this record." (R. 22.) The ALJ reasoned that Dr. Morcos' other mental status examinations produced findings "largely within normal limits," concluding that "Dr. Morcos' own report, as well as the specific conclusions of Dr. Chaudhry, do[] not support" the limitations Dr. Morcos ascribed to Plaintiff.
After reviewing the medical evidence and Plaintiff's testimony, the ALJ concluded that "claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision." (R. 20.) The ALJ explained that Plaintiff's allegations that his combination of ailments cause him to be unable to work "are not supported by medical evidence obtained in the record," citing exhibits 5A, 23F and 25F. (R. 20-21.)
The ALJ determined that Plaintiff's mental RFC was "mostly supported by Dr. Chaudhry's determinations in the April 2014 questionnaire, in terms of limiting contact with coworkers and the general public, and restricting the claimant from a range of potentially stressful workplace situations." (R. 22.) The ALJ found, however, that the need to be absent from work between two or three times a month was "not supported by the objective evidence in file or by the [Plaintiff's] conservative course of treatment." (R. 22.)
Finally, the ALJ determined that Plaintiff has no past relevant work, but concluded that based on Plaintiff's age, education, work experience and RFC, "there are jobs that exist in significant numbers in the national economy" that Plaintiff can perform, including work as a marker, laundry-domestic, or laminating machine off-bearer as found by the vocational expert. (R. 23-24.) The ALJ therefore determined that Plaintiff had not been suffering from a "disability" since February 4, 2013 as this term is defined under the SSA. (R. 24.)
In appealing the ALJ's decision to the Appeals Council, Plaintiff submitted an evaluation by psychologist Ronald Sherman, Ph.D. based on an examination from June 12, 2015, which post-dated the ALJ's disability decision. (R. 189-91.) Dr. Sherman completed a mental status examination and found Plaintiff alert and oriented to time, place and person with clear relevant, goal-directed speech and organized thought content. (R. 190.) Plaintiff had a depressed and anxious mood, sad affect and intrusive recollection of traumatic events. (R. 190.) Plaintiff denied suicidal or homicidal ideations and hallucinations. (R. 190.) Plaintiff's concentration and attention to detail were "poor" and his insight and judgment were "fair." (R. 190.) Dr. Sherman diagnosed Plaintiff with depressive disorder, not otherwise specified, PTSD and attention deficit disorder with childhood onset hyperactivity. (R. 190.) Dr. Sherman gave Plaintiff a GAF score of forty-seven. (R. 190.) Dr. Sherman opined that Plaintiff was totally disabled and unable to function in any job in any capacity and that the severity of his disability existed since February 1, 2013. (R. 191.)
Dr. Sherman also completed a Mental Impairment Questionnaire on the same day. (R. 192-97.) Dr. Sherman noted "moderate," "moderate-to-marked" and "marked" for all of Plaintiff's mental functions.
Plaintiff also submitted a narrative psychiatric impairment questionnaire from Dr. Chaudhry that was created on August 24, 2015, after the ALJ's disability decision. (R. 185-88.) Dr. Chaudhry recounted Plaintiff's medical treatment at Woodhull, including: his social and medical history; his PTSD symptoms of flashbacks, nightmares and hypervigilance; depression and anxiety symptoms including anhedonia, amotivation, depressed mood, depressed affect, insomnia, low energy, low self-esteem and guilty thoughts/feelings; poor concentration; suicidal ideation "with specific thoughts most days (usually without plan or active intent);" uncontrollable worries about various life stressors; restlessness; difficulty relaxing; irritability; and fear that something awful is about to happen. (R. 185, 186-88.) Dr. Chaudhry's assessment was based on "clinical evaluations and observation[s] in the treatment process and [Plaintiff's] self-report." (R. 186.) Dr. Chaudhry also recounted Plaintiff's recent psychotherapy sessions with Lindsay Meissner, LMSW, in July and August of 2015. (R. 186.) Plaintiff scored a twenty-five on the PHQ9 administered on July 21, 2015, indicating severe-acute major depression, and was assessed a GAF score of fifty. (R. 185, 186.) Plaintiff was prescribed an oral solution of antidepressant Citalopram, but Dr. Chaudhry reported noncompliance because "marked" as symptoms constantly interfering with ability more than two-thirds of an eight hour workday. (R. 195.) Plaintiff reported that he is "prone to headaches, vomiting and dizziness when taking any medication." (R. 186.) Dr. Chaudhry explained that Plaintiff presented with constricted affect, depressed and anxious mood and frequent active suicidal ideation during their sessions. (R. 187.) Dr. Chaudhry opined that Plaintiff's primary diagnosis of Dysthymic Disorder is a milder, more chronic and insidious form of depression that can limit an individual's ability to engage in work when it is compounded with "co-occurring clinical issues" such as Plaintiff's PTSD. (R. 187.)
The Appeals Council declined to consider this additional evidence. The Appeals Council explained that Dr. Sherman examined Plaintiff for the first time on June 12, 2015, well after the ALJ's final decision on January 21, 2015 and the Appeals Council found "insufficient basis to project Dr. Sherman's observations and opinions backwards" to February 1, 2013. (R. 2.) The Appeals Council found Dr. Chaudhry's August 24, 2015 report duplicative of Dr. Chaudhry's December 8, 2014 letter (exhibit 25F), which the ALJ considered.
"In reviewing a final decision of the Commissioner, a district court must determine 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), as amended on reh'g in part, 416 F.3d 101 (2d Cir. 2005); see also Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam). "Substantial evidence is `more than a mere scintilla' and `means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (same). Once an ALJ finds facts, the court "can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012) (citations and internal quotation marks omitted). In deciding whether substantial evidence exists, 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); McIntyre, 758 F.3d at 149 ("If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld."). The Commissioner's factual findings "must be given conclusive effect so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citation and internal quotations omitted). If, however, the Commissioner's decision is not supported by substantial evidence or is based on legal error, a court may set aside the decision of the Commissioner. Box v. Colvin, 3 F.Supp.3d 27, 41 (E.D.N.Y. 2014); see Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). "In making such determinations, courts should be mindful that `[t]he Social Security Act is a remedial statute which must be `liberally applied'; its intent is inclusion rather than exclusion.'" McCall v. Astrue, No. 05-CV-2042, 2008 WL 5378121, at *8 (S.D.N.Y. Dec. 23, 2008) (alteration in original) (quoting Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir. 1983)).
Supplemental security income is available to individuals who are "disabled" within the meaning of the SSA.
Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)); see also Lesterhuis, 805 F.3d at 86 n.2 (describing the "five-step sequential evaluation for adjudication of disability claims, set forth at 20 C.F.R. § 404.1520"); McIntyre, 758 F.3d at 150 (describing "the five-step, sequential evaluation process used to determine whether a claimant is disabled" (citing 20 C.F.R. § 416.920(a)(4)(i)-(v))).
Plaintiff argues that the ALJ's RFC determination is not supported by substantial evidence because he improperly weighed the opinions of Dr. Chaudhry and Dr. Morcos and failed to point to other medical evidence supporting the RFC assessment. (Pl. Mem. 11-16.) The Commissioner argues that the ALJ properly weighed the medical opinion evidence and properly accounted for Plaintiff's limitations in assessing Plaintiff a "very limited range of work." (Comm'r Mem. 16-23.)
"[A] treating physician's statement that the claimant is disabled cannot itself be determinative." Micheli v. Astrue, 501 F. App'x 26, 28 (2d Cir. 2012) (quoting Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (same). But a treating physician's opinion as to the "nature and severity" of a plaintiff's impairments will be given "controlling weight" if the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the plaintiff's] case record."
If an ALJ declines to give a treating physician's opinion controlling weight, the ALJ must consider a number of factors to determine how much weight to assign to the treating physician's opinion, specifically: "(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 v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)); see also Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2) and discussing the factors). The ALJ must set forth the reasons for the weight assigned to the treating physician's opinion. Halloran, 362 F.3d at 32. While the ALJ is not required to explicitly discuss the factors, it must be clear from the decision that the proper analysis was undertaken. See Petrie, 412 F. App'x at 406 ("[W]here `the evidence of record permits us to glean the rationale of an ALJ's decision, we do not require that he have mentioned every item of testimony presented to him or have explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.'" (quoting Mongeur, 722 F.2d at 1040)). Failure "to provide good reasons for not crediting the opinion of a claimant's treating physician is a ground for remand." Sanders v. Comm'r of Soc. Sec., 506 F. App'x 74, 77 (2d Cir. 2012); see also Halloran, 362 F.3d at 32-33 ("We do not hesitate to remand when the Commissioner has not provided `good reasons' for the weight given to a treating physician[']s opinion . . . .").
Before evaluating the weight assigned to a treating physician's opinion, the Court must assess whether the ALJ satisfied his threshold duty to adequately develop the record.
The ALJ in Selian relied on a consultative examiner's opinion, which concluded that the claimant could lift objects "of a mild degree of weight on an intermittent basis." 708 F.3d at 421. The Second Circuit found this opinion "remarkably vague," and, as a result, the ALJ's analysis amounted to "sheer speculation." Id. Given the claimant's testimony to the contrary, "[a]t a minimum, the ALJ likely should have contacted [the physician] and sought clarification of his report." Id. (citing 20 C.F.R. § 404.1520b(c)(1)); McClinton v. Colvin, No. 13-CV-8904, 2015 WL 5157029, at *23 (S.D.N.Y. Sept. 2, 2015) ("In applying [20 C.F.R. § 416.920b(c)], . . . when the information needed pertains to the treating physician's opinion, the ALJ should reach out to that treating source for clarification and additional evidence."); Gabrielsen v. Colvin, No. 12-CV-5694, 2015 WL 4597548, at *6 (S.D.N.Y. July 30, 2015) ("[C]ourts in the Second Circuit have concluded, citing [40 C.F.R. §§ 404.1520b(c)(1), 16.920b(c)(1)], that the ALJ still has an obligation to re-contact the treating physician in some cases." (citing Selian, 708 F.3d at 421, and Ashley v. Comm'r of Soc. Sec., No. 14-CV-40, 2014 WL 7409594, at *4 (N.D.N.Y. Dec. 30, 2014))); see also Vazquez v. Comm'r of Soc. Sec., No. 14-CV-6900, 2015 WL 4562978, at *17 (S.D.N.Y. July 21, 2015) ("[T]he alteration of the regulations does not give the ALJ free rein to dismiss an inconsistency without further developing the record."); Ashley, 2014 WL 7409594, at *4 (finding that, despite having broad discretion to resolve conflicts, the ALJ should have contacted and sought clarification from the treating doctor instead of finding that "[i]t was not necessary to contact either [doctor to] clarify their opinions as their treating records lack the documentation that they could point to to support their opinions" (citing 40 C.F.R. §§ 404.1520b(c)(1), 16.920b(c)(1))); Jimenez v. Astrue, No. 12CV-3477, 2013 WL 4400533, at *11 (S.D.N.Y. Aug. 14, 2013) (noting that despite amendments to the social security regulations, "the regulations still contemplate the ALJ recontacting treating physicians when `the additional information needed is directly related to that source's medical opinion'" (quoting How We Collect and Consider Evidence of Disability, 77 Fed. Reg. 10,651-01, 10,652 (Feb. 23, 2012))).
Failure to adequately develop the record is an independent ground for vacating the ALJ's decision and remanding for further findings. See Rosa, 168 F.3d at 83 (finding remand "particularly appropriate" where the ALJ failed to obtain adequate information from treating physicians and potentially relevant information from other doctors); Craig v. Comm'r of Soc. Sec., ___ F. Supp. 3d ___, ___ 2016 WL 6885216, at *8 (S.D.N.Y. Nov. 22, 2016) ("Remand is appropriate where this duty is not discharged." (citing Moran v. Astrue, 569 F.3d 108, 114-15 (2d Cir. 2009)). However, even where an ALJ fails to develop the opinions of a treating physician, remand may not be required "where . . . the record contains sufficient evidence from which an ALJ can assess the petitioner's [RFC]." Tankisi v. Comm'r of Soc. Sec., 521 F. App'x 29, 34 (2d Cir. 2013).
District courts have reached varying conclusions as to whether the ALJ can satisfy the duty by relying on the plaintiff's counsel to obtain the necessary records. See Sotososa v. Colvin, No. 15-CV-854, 2016 WL 6517788, at *4 (W.D.N.Y. Nov. 3, 2016) ("Where there is a gap in the record, however, district courts in this circuit have reached conflicting conclusions as to whether the ALJ satisfies that duty by relying on the claimant's counsel to obtain the missing evidence." (collecting cases)); compare Myers ex rel. C.N. v. Astrue, 993 F.Supp.2d 156, 162-64 (N.D.N.Y. 2012) (finding the ALJ fulfilled the duty to develop the record where the plaintiff's counsel requested and received additional time to submit the records and submitted a different record) with Harris v. Colvin, No. 11-CV-1497, 2013 WL 5278718, at *7 (N.D.N.Y Sept. 18, 2013) (finding the ALJ did not satisfy the duty to develop the record where the ALJ held the record open to allow the plaintiff's counsel to obtain the promised additional records but no records were submitted).
In two unpublished opinions, the Second Circuit discussed the extent of the duty and found it was satisfied where the ALJ did more than solely rely on the plaintiff's counsel to satisfy the duty to develop. See Frye ex rel. A.O. v. Astrue, 485 F. App'x 484, 488 n.2 (2d Cir. 2012) (holding the ALJ's decision was based on a fully developed record because the ALJ requested submission of additional relevant evidence, held the record open subsequent to the administrative hearing, contacted counsel when no further evidence was received and granted counsel's request for an extension of time to obtain the evidence); Jordan v. Comm'r of Soc. Sec., 142 F. App'x 542, 543 (2d Cir. 2005) (affirming a district court's finding that an ALJ fulfilled his duty to develop the record where the plaintiff's counsel volunteered to secure the records, the record was left open, the ALJ reminded the plaintiff's counsel to submit the records, the plaintiff's counsel informed the social security administration that there were no further records to add, and the plaintiff's counsel did not request assistance from the ALJ in obtaining the records).
Under the statute, a "nontreating source" is defined as a "physician, psychologist, or other acceptable medical source who has examined [the plaintiff] but does not have, or did not have, an ongoing treatment relationship with [the plaintiff]." 20 C.F.R. § 416.902. In general, "ALJs should not rely heavily on the findings of consultative physicians after a single examination." Selian, 708 F.3d at 419. This is because "consultative exams are often brief, are generally performed without the benefit or review of claimant's medical history and, at best, only give a glimpse of the claimant on a single day." Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990); Hernandez v. Astrue, 814 F.Supp.2d 168, 182-83 (E.D.N.Y. 2011) ("[T]he opinion of a consultative physician, `who only examined a plaintiff once, should not be accorded the same weight as the opinion of [a] plaintiff's treating psychotherapist.'" (quoting Cruz, 912 F.2d at 13)).
Dr. Chaudhry completed a questionnaire indicating, among other things, that Plaintiff likely would be absent from work two to three days a month and was "markedly limited" in the following ways: "[1] his ability to work in coordination with or in proximity to others without being distracted by them; [2] his ability to interact appropriately with the general public; and [3] his ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes." (Pl. Mem. 11 (citing R. 828-830).) The ALJ accorded the majority of Dr. Chaudhry's opinions "great weight" but afforded "lesser weight" to his opinion that Plaintiff likely would be absent form work about two to three times per month because of the absence of significant symptom flares in Plaintiff's medical records. (R. 21.)
Plaintiff raises two primary arguments challenging the ALJ's weighing of Dr. Chaudhry's opinion. First, Plaintiff argues that although the ALJ granted Dr. Chaudhry's opinion regarding Plaintiff's "marked" limitations "great weight," the ALJ in fact discounted the opinions without explanation because the RFC assessment did not "preclude" Plaintiff from working with others. (Pl. Mem. 11-12.) Second, Plaintiff argues that the ALJ erred by according only "little weight" to Dr. Chaudhry's opinion that Plaintiff would miss work two-to-three times a month without first fully developing the record and without pointing to contradictory evidence.
Plaintiff's argument that the ALJ did not incorporate Dr. Chaudhry's finding that he could not "interact appropriately with the general public" into the RFC assessment is without merit. The ALJ's RFC assessment explicitly limited exposure to crowds and included "no requirement to interact with the general public to perform work duties." (R. 19.) The ALJ explicitly noted that the RFC assessment took into account Dr. Chaudhry's opinion "in terms of limiting contact with . . . the general public." (R. 19, 22.)
Similarly, as to the other two "marked" functional limitations, the ALJ noted that the RFC assessment accounted for "limiting contact with co-workers" based on Dr. Chaudhry's April 2014 questionnaire and accordingly limited the RFC to "only casual non-intense contact with others necessary to perform the work duties." (R. 19, 22). The vocational expert testified that the jobs he found available for someone limited to "casual non-intense contact" were jobs "working basically alone, that you wouldn't be working in tandem with anyone else." (R. 76, 81-82.) The relevant limiting categories contemplated by Dr. Chaudhry to be "markedly" limited only measured Plaintiff's ability to work in coordination and in proximity to others, one of eight measures in concentration and persistence; and the ability to "get along" with coworkers or peers without distracting them or exhibiting behavioral extremes, one of five measures in social interaction. (R. 829-30); see, e.g., 20 C.F.R. Pt. 404, Appendix 1 of Subpart 1 of Subpart P § 12.00(C)(2) (noting that a variety of measures comprehensively make up the determination of the degree of a claimant's social function impairment at step two). Dr. Chaudhry found between no limitation and only "moderate" limitation for Plaintiff's remaining concentration and persistence and social interaction categories. (R. 829-30.) Thus, the "marked" limitation in only one aspect of social interaction as well as concentration and persistence does not mandate a finding that Plaintiff is "precluded" from interacting with others completely; rather, the RFC assessment accounts for the "great weight" the ALJ accorded to Dr. Chaudhry's opinion that Plaintiff is "markedly limited" in his ability to work in coordination or proximity to others and ability to get along with co-workers or peers without distracting them, since the RFC limits Plaintiff to casual non-intense contact with coworkers and no exposure to crowds or need to interact with the general public.
As to Plaintiff's second argument that the ALJ failed to accord "great weight" to Dr. Chaudhry's finding that Plaintiff likely would be absent from work two to three times in a month, the ALJ failed to adequately develop the record before discounting Dr. Chaudhry's opinion.
As discussed above, the Second Circuit has not clearly described the extent of the ALJ's duty. However, in light of the investigative nature of the ALJ's duty to develop the record, see Vincent v. Comm'r of Soc. Sec., 651 F.3d 299, 305 (2d Cir. 2011) ("The duty of the ALJ, unlike that of a judge at trial, is to `investigate and develop the facts and develop the arguments both for and against the granting of benefits.'" (citing Butts, 388 F.3d at 386)), the Court finds that the ALJ did not satisfy her duty here. The ALJ's discussion on the record with Plaintiff's counsel regarding Dr. Chaudhry's treatment notes and her decision to leave the record open for thirty days for the submission of his records, (R. 41-47), were not sufficient to satisfy her duty because the ALJ took no further action to ensure that the record was complete, even though the ALJ was well aware that the record request had been outstanding since September 24, 2014, over two months before the hearing, (R. 46).
Although the ALJ afforded the majority of Dr. Chaudhry's opinions "controlling weight," it was not harmless error for the ALJ to fail to develop the record before discounting Dr. Chaudhry's opinion as to the likelihood and frequency with which Plaintiff would be absent from work. The vocational expert testified that Plaintiff would not be able to sustain work if he would be absent two or three times a month, (R. 93-94), and the contents of Dr. Chaudhry's treatment notes may support Dr. Chaudhry's opinion regarding Plaintiff's absence from work. See Greek v. Colvin, 802 F.3d 370, 376 (2d Cir. 2015) (finding that it was not harmless error for an ALJ to discredit a treating physician's opinion regarding the plaintiff's likely absence from work where a vocational expert testified that the plaintiff could not perform jobs available in large numbers in the national economy if he had to miss four or more days of work per month); cf. Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) ("Where application of the correct legal principles to Vincent, 651 F.3d at 305 ("Because of the ALJ's duty to investigate, if counsel's entitlement to fees is questioned due to an undeveloped record, it must be clear that counsel bore primary responsibility for those deficiencies before the fee recovery is reduced."). the record could lead only to the same conclusion, there is no need to require agency reconsideration." (internal quotations marks and alterations omitted)). Accordingly, the Court remands for the ALJ to develop the record.
The state consultative psychology examiner, Dr. Morcos, found that Plaintiff could not make appropriate decisions, relate with others or appropriately deal with stress based on Plaintiff's poor coping skills, which appeared consistent with Plaintiff's stress-related problems. (R. 524.) The ALJ accorded these opinions "little weight" because Dr. Morcos' observations "appear to have been based solely on the homicidal ideation" Plaintiff expressed during the examination, which were not supported by other record evidence. The ALJ reasoned that Dr. Morcos' other mental status examinations produced findings "largely within normal limits," concluding that "Dr. Morcos' own report, as well as the specific conclusions of Dr. Chaudhry, do[] not support" the limitations Dr. Morcos ascribed to Plaintiff. (R. 22.)
Plaintiff argues that the ALJ should have accorded "greater consideration" to Dr. Morcos' opinions because Dr. Morcos' other findings were consistent with the record and her mental status examination revealed that Plaintiff has poor insight and judgment. (Pl. Mem. 14.) The Commissioner argues the ALJ properly gave "little weight" to consultative examiner Dr. Morcos' statements because they were not supported by the objective medical evidence and contradicted Dr. Chaudhry's opinion. (Comm'r Mem. 20-22.)
Even though the Court does not agree with the ALJ's finding that Dr. Morcos' opinions that Plaintiff could not make decisions, relate with others or adequately deal with stress were not supported by Dr. Morcos' other findings, the ALJ correctly relied on the opinions of Dr. Chaudhry to discount the weight afforded to Dr. Morcos' opinions.
Accordingly, the ALJ did not err in according "little weight" to Dr. Morcos' opinions.
Plaintiff argues that the ALJ's RFC assessment is not supported by substantial evidence in the record. (Pl. Mem. 15.) The Commissioner argues that the ALJ properly discounted medical opinion evidence and accounted for limitations that were supported by the medical evidence by limiting Plaintiff to a "very limited range of work." (Comm'r Mem. 22-23.)
The Court is unable to review whether the ALJ's denial of benefits was based on substantial evidence in the record because the ALJ failed to develop the record in reaching a conclusion as to Plaintiff's RFC. See Ayer v. Astrue, No. 11-CV-83, 2012 WL 381784, at *7 (D. Vt. Feb. 6, 2012) (declining to address arguments as to whether the plaintiff was disabled because the ALJ failed to adequately develop the record); Mantovani v. Astrue, No. 09-CV-3957, 2011 WL 1304148, at *4 (E.D.N.Y. Mar 31, 2011) (Where the ALJ fails to develop the record, "`the Court need not — indeed, cannot — reach the question of whether the [ALJ's] denial of benefits was based on substantial evidence.'" (alteration in original) (quoting Jones v. Apfel, 66 F.Supp.2d 518, 542 (S.D.N.Y. 1999)). Accordingly, the Court remands for the ALJ to further develop the factual record. See Butts, 388 F.3d at 385 ("That is, when `further findings would so plainly help to assure the proper disposition of [the] claim, we believe that remand is particularly appropriate.'" (alteration in the original) (quoting Rosa, 168 F.3d at 83)); Mantovani, 2011 WL 1304148, at *4.
Plaintiff also argues that the ALJ failed to assess how the medical evidence conflicted with Plaintiff's testimony or to consider any of the relevant credibility factors. (Pl. Mem. 16-18.) The Commissioner argues that the ALJ considered some of the credibility factors and Plaintiff's inconsistent statements in determining his credibility. (Comm'r Mem. 23-25.) Because the Court remands the case for further consideration of the medical evidence, the Court will not address Plaintiff's argument, as the ALJ's errors impact the Court's ability to review the credibility determination.
Plaintiff argues that the Appeals Council erred in rejecting the reports from Dr. Chaudhry and Dr. Sherman because both reports included new evidence which reflected Plaintiff's medical condition during the relevant period. (Pl. Mem. 19-20.) The Commissioner argues that the Appeals Council correctly determined that Dr. Chaudhry's opinion in the narrative report was duplicative of Dr. Chaudhry's December 8, 2014 report, which the ALJ considered. (Comm'r Mem. 26-27.) The Commissioner also argues that Dr. Sherman's opinion does not relate to the relevant disability period because Dr. Sherman's opinion was based on an examination that occurred after the ALJ's final decision, and therefore — despite Dr. Sherman's indication that his findings related back to February 1, 2013 — there is no basis to apply Dr. Sherman's findings retroactively. (Id. at 27.)
"A court reviewing the Commissioner's determination must generally base its decision `upon the pleadings and transcript of the record.'" Lopez v. Astrue, No. 09-CV-1678, 2011 WL 6000550, at *10 (E.D.N.Y. Nov. 28, 2011) (first quoting 42 U.S.C. § 405(g); and then citing Mathews v. Weber, 423 U.S. 261, 263 (1976)). However, pursuant to the sixth sentence of 42 U.S.C. § 405(g), the court "may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g); see also Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004). Thus, remand of this type requires (1) "a showing that there is new evidence which is material" and (2) "good cause for the failure to incorporate such evidence into the record in a prior proceeding." Rolon v. Comm'r of Soc. Sec., 994 F.Supp.2d 496, 509 (S.D.N.Y. 2014) (citing 42 U.S.C. § 405(g)). Evidence is "new" if it has not been considered previously and is "not merely cumulative of what is already in the record." Flanigan v. Colvin, 21 F.Supp.3d 285, 308 (S.D.N.Y. 2014) (quoting Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991)). "New evidence is considered material if (1) it is `relevant to the claimant's condition during the time period for which benefits were denied,' (2) it is `probative,' and (3) there is `a reasonable possibility that the new evidence would have influenced the [Commissioner] to decide claimant's application differently.'" Williams v. Comm'r of Soc. Sec., 236 F. App'x 641, 644 (2d Cir. 2007) (alteration in original) (quoting Pollard, 377 F.3d at 193). Good cause exists where the new evidence "surfaces after the Secretary's final decision and the claimant could not have obtained the evidence during the pendency of [the prior] proceeding." Carter v. Colvin, No. 14-CV-4970, 2015 WL 5124326, at *10 (E.D.N.Y. Sept. 1, 2015) (quoting Lisa v. Sec'y of Dep't of Health & Human Servs., 940 F.2d 40, 44 (2d Cir. 1991)).
The Appeals Council erred in not considering Dr. Chaudhry's August 24, 2015 narrative report.
The contents of the report are also material and should not be precluded merely because the report was generated after, and is based in part on, treatment dates after the final ALJ decision. The report is material because it further informs the severity of Plaintiff's impairments during the disability period by providing an additional undated diagnosis and a treatment plan recorded by Dr. Chaudhry, who observed Plaintiff for approximately one year leading up to the ALJ hearing. See Pollard, 377 F.3d at 193-94 ("We have observed, repeatedly, that evidence bearing upon an applicant's condition subsequent to the date upon which the earning requirement [i.e., insured status] was last met is pertinent evidence in that it may disclose the severity and continuity of impairments existing before the earning requirement date or may identify additional impairments which could reasonably be presumed to have been present . . . ." (citing Lisa, 940 F.2d at 44)).
This new information is "probative" and reasonably would have influenced the ALJ's decision regarding Plaintiff's disability. The ALJ specifically discredited a portion of Dr. Chaudhry's opinion because his treatment method was conservative, noting the lack of medication, (R. 21), and Dr. Chaudhry's report indicates medication was in fact prescribed, (R. 186). In addition, Dr. Chaudhry's report that Plaintiff suffered suicidal ideations "with specific thoughts most days (usually without plan or active intent)," (R. 185), further informs the severity and frequency of Plaintiff's mental health impairments, which the ALJ also called into question by limiting Dr. Chaudhry's opinion that Plaintiff would be absent from work two-to-three times a month, (R. 21). See, e.g., Cammy, 2015 WL 6029187, at *22 (finding psychiatric report created after the ALJ's final decision was material evidence because it provided an onset date for the plaintiff's condition and the evaluation included information as to plaintiff's mental conditions, including diagnosis and symptoms that "would have influenced the Commissioner to decide the plaintiff's application differently"); Farnia v. Barnhart, No. 4-CV-1299, 2005 WL 91308, at *5 (E.D.N.Y. Jan. 18, 2005) (finding a treating physician's report dated two months after the ALJ's final decision worthy of consideration because the report related to the relevant disability period, was consistent with findings in the record by the same doctor and presented a conflict with the Commissioner's findings).
By contrast, the Appeals Council properly declined to consider Dr. Sherman's reports. Unlike Dr. Chaudhry, the record contains no evidence that Dr. Sherman examined Plaintiff at any point during the disability period. Rather, the only basis for Dr. Sherman's findings was an examination on June 12, 2015, nearly five months after the ALJ's final decision. There is no basis to credit his assessment that Plaintiff's conditions as described in his report relate back to February 1, 2013 when Dr. Sherman had no contact with Plaintiff prior to June 12, 2015. See Catrain v. Barnhart, 325 F.Supp.2d 183, 193 (E.D.N.Y. 2004) (finding new psychiatric reports submitted based on first-time exams ten months after the ALJ's decision did not report on the plaintiff's condition at the relevant time period). Accordingly, Dr. Sherman's findings do not relate to the period of disability.
Furthermore, Dr. Sherman's findings in the mental impairment questionnaire do not differ significantly from those of Dr. Chaudhry. (Compare R. 192, 195, 828-30 (Dr. Sherman found Plaintiff "markedly" limited in ability to get along with co-workers without distracting them and work in coordination to others without being distracted by them, and opined that Plaintiff likely would be absent from work more than three times per month) with R. 828-30 (Dr. Chaudhry found Plaintiff "markedly" limited in ability to get along with co-workers without distracting them and ability to work in coordination and proximity to others without being distracted by them, and opined that Plaintiff likely would be absent from work between two and three times during a month).) However, Dr. Sherman found Plaintiff "markedly" limited in seven of the nine categories of concentration and persistence, whereas Dr. Chaudhry found Plaintiff "markedly" limited in one of eight categories, (R. 829-31). In total, Dr. Sherman's report does not present new material evidence that significantly differs from or would weigh more heavily than Dr. Chaudhry's opinions.
Accordingly, the evidence is not material because it is not relevant to Plaintiff's condition during the disability period. See Williams, 236 F. App'x at 644 (defining materiality in part as "relevant to the claimant's condition during the time period for which benefits were denied" (citation and internal quotation marks omitted)). On remand, the ALJ should consider Dr. Chaudhry's August 23, 2015 narrative report as well as any further records the ALJ obtains from Dr. Chaudhry.
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings is granted and the Commissioner's cross-motion for judgment on the pleadings is denied. The Commissioner's decision is vacated, and this action is remanded for further administrative proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Clerk of Court is directed to close this case.
SO ORDERED.
