Ocasio v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LUIS F. OCASIO, NOT FOR PUBLICATION

Plaintiff,

SUMMARY ORDER

v.

18-cv-2472(KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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MATSUMOTO, United States District Judge:

Luis F. Ocasio (“plaintiff”) appeals the final

decision of the Commissioner of Social Security (“defendant” or

“Commissioner”), which found that plaintiff was not eligible for

supplemental security income benefits under Title XVI of the

Social Security Act (“the Act”), on the basis that plaintiff is

not disabled within the meaning of the Act. Plaintiff alleges

that he is disabled under the Act and is thus entitled to

receive the aforementioned benefits.

Presently before the court is defendant’s motion for

judgment on the pleadings (ECF No. 15) and plaintiff’s cross-

motion for judgment on the pleadings (ECF. No 16). For the

reasons stated below, plaintiff’s motion is GRANTED in part,

defendant’s motion is DENIED, and the case is remanded for

further proceedings consistent with this Memorandum and Order.

BACKGROUND

I. Procedural History

On August 25, 2015, plaintiff applied for supplemental

security income benefits. (ECF No. 1, Complaint (“Compl.”) 1;

ECF No. 19, Administrative Transcript (“Tr.”) 104, 165-173,

195.) Plaintiff claimed that he was disabled as a result of

substance abuse and complications of the right leg. (Compl. 1.)

His alleged disability onset date was April 1, 1998. (Id.)

On November 4, 2015, the Social Security

Administration (“SSA”) denied plaintiff’s application for

supplemental security income on the grounds that he was not

disabled within the meaning of the Act. (Tr. 111-14.) On

December 21, 2015, plaintiff requested a hearing before an

Administrative Law Judge (“ALJ”). (Id. 117-19.) On May 18,

2017, plaintiff appeared before ALJ Laura Michaelec Olszewski,

but the hearing was adjourned in order to allow the plaintiff to

obtain a representative. (Id. 66-73.) On August 29, 2017,

plaintiff appeared with his representative, Michael Schoffman,

Esq., and testified before ALJ Olszewski. (Id. 74-102.)

Theresa Hopkins, a vocational expert, also appeared at

plaintiff’s hearing. (Id.) By decision dated November 27,

2017, the ALJ determined that plaintiff was not disabled within

the meaning of the Act and, therefore, was not entitled to

benefits. (Id. 12-29.)

On November 30, 2017, plaintiff appealed the ALJ’s

decision to the Appeals Council. (Tr. 160-62.) On April 5,

2018, the Appeals Council denied review, thereby rendering the

ALJ decision final. (Id. 1-5.) On April 24, 2018, plaintiff

filed the instant action in federal court. (See generally

Compl.)

II. Plaintiff’s Subpoena Request

The parties filed a Joint Stipulation of Relevant Facts

on March 29, 2019, which the court incorporates by reference.

(ECF No. 18.) The court only references those additional facts

relevant to the ALJ’s decision and the pertinent medical opinion

evidence.

Plaintiff appeared for his first scheduled hearing on

May 18, 2017, before ALJ Laura Michaelec Olszewski, but the

hearing was adjourned in order to allow plaintiff to obtain

representation. (Tr. 66-73.) The same day, a Psychiatric

Functional Assessment form, signed by Korczak Zbignew, LCSW, and

Mark Rybakov, DO of St. Mark’s Place Institute for Mental

Health, was entered as an exhibit into plaintiff’s file.1 (Id.

395-400.) The record indicates that attorney Michael Schoffman

was retained by plaintiff on July 12, 2017, and entered an

appearance in the case on that date. (Id. 152-53.) On August

1 Psychiatrist Mark Rybakov, M.D., the plaintiff’s treating psychiatrist,

is affiliated and practices medicine with St. Mark’s Place Institute for

Mental Health, according to www.webmd.com.

24, 2017, Mr. Schoffman advised the ALJ by letter that he had

not been able to obtain the medical records of St. Mark’s Place

Institute for Mental Health. (Id. 263.) Mr. Schoffman

requested that the ALJ issue a subpoena for the records. On

August 29, 2017, Plaintiff appeared at his second hearing with

Mr. Schoffman, and testified before ALJ Olszewski. (Id. 74-

102.)

The record is devoid of further discussion regarding

Mr. Schoffman’s request to subpoena the records of St. Mark’s

Place Institute and Dr. Rybakov. Nowhere does the transcript

indicate that a subpoena was issued by ALJ Olszewski. Nor does

her decision mention Mr. Schoffman’s subpoena request. In sum,

the court cannot discern why the ALJ declined to issue a

subpoena and deny Mr. Schoffman’s request. (See generally Tr.

12-29.) The oral transcript for the hearing, which took place

on August 29, 2017, likewise offers no clues as to the fate of

Mr. Schoffman’s subpoena request. (Id. 74-102.) Notably, the

Exhibit List attached to the ALJ decision indicates that no such

records were introduced into the record, or that the ALJ issued

a subpoena. (Id. 28.)

III. Medical Opinion of Treating Psychiatrist Mark Rybakov, MD

On May 18, 2017, a “Psychiatric Functional Assessment”

form was scanned into the plaintiff’s file by SSA staff, and

listed as Exhibit 8F. (Tr. 395-400.) The form was signed by

both Korczak Zbignew, LCSW and Mark Rybakov, DO. (Id. 400.)

Dr. Rybakov stated that plaintiff had been seeing him once a

week, for more than a year, beginning on May 5, 2016. (Id. 395.)

Dr. Rybakov diagnosed plaintiff with major depressive disorder,

opioid dependence in remission, and chronic post-traumatic

stress disorder (PTSD). (Id.) Dr. Rybakov further noted that

plaintiff had a history of childhood sexual abuse that

contributed to his depressive disorder and PTSD, with loss of

interest and pleasure in activities, guilt, and loneliness.

(Id.) He also reported that plaintiff had engaged in individual

therapy with cognitive behavioral techniques and mindfulness

once a week, and psychopharmacotherapy, and took Celexa and

trazodone. (Id.) Plaintiff did not report any side effects to

the medication, and none were observed. (Id.)

Dr. Rybakov opined that plaintiff’s prognosis was poor

to moderate. (Tr. 395.) Plaintiff exhibited depressed mood,

diminished interest in almost all activities, sleep disturbance,

psychomotor agitation or retardation, decreased energy,

difficulty concentrating or thinking, and detachment from social

relationships. (Id. 398.) He further indicated that he had

subsequent involuntary re-experiencing of a traumatic event,

disturbance in mood and behavior, and increases in arousal and

reactivity. (Id.)

Dr. Rybakov noted that plaintiff had an extreme

limitation or inability to function with respect to: remembering

location and work-like procedures; sequencing multi-step

activities; and problems with memory, periods of confusion, and

visual hallucinations. (Tr. 396.) According to Dr. Rybakov,

plaintiff had a marked or serious limitation concerning: using

reason and judgment to make work-related decisions;

understanding and remembering short and simple instructions; and

carrying out very short and simple oral instructions of one to

two steps. (Id. 396.) Dr. Rybakov also documented plaintiff’s

moderate limitations, including answering questions and

providing explanations; recognizing a limitation; understanding

and learning terms, instructions, and procedures; describing a

work activity to someone else; and asking simple questions or

requesting assistance. (Id.)

Dr. Rybakov opined that, in the context of plaintiff’s

social interactions, he had a mild limitation stating his own

point of view when interacting with others and keeping social

interactions free of excessive irritability. (Tr. 397.) As for

marked or serious limitations, Dr. Rybakov noted that plaintiff

had difficulties getting along with co-workers or peers without

unduly distracting them or exhibiting behavioral extremes;

understanding or responding to social cues; responding

appropriately to requests, suggestions, and criticisms from co-

workers or supervisors; and initiating or sustaining

conversation. (Id.) Plaintiff also had an extreme limitation

cooperating and handling conflict with others. (Id.) Dr.

Rybakov opined generally that plaintiff was extremely limited in

all areas of concentration, persistence, or maintaining pace.

(Id.)

LEGAL STANDARD

Unsuccessful claimants for disability benefits under

the Act may bring an action in federal district court seeking

judicial review of the Commissioner's denial of their benefits

“within sixty days after the mailing . . . of notice of such

decision or within such further time as the Commissioner of

Social Security may allow.” 42 U.S.C. §§ 405(g), 1383(c)(3). A

district court, reviewing the final determination of the

Commissioner, must determine whether the correct legal standards

were applied and whether substantial evidence supports the

decision. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.

1998).

A district court may set aside the Commissioner’s

decision only if the factual findings are not supported by

substantial evidence or if the decision is based on legal error.

Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).

“Substantial evidence is more than a mere scintilla,” and must

be relevant evidence that a reasonable mind would accept as

adequate to support a conclusion.” Halloran v. Barnhart, 362

F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 420

U.S. 389, 401 (1971)) (internal quotation marks omitted). If

there is substantial evidence in the record to support the

Commissioner’s factual findings, those findings must be upheld.

42 U.S.C. § 405(g). Inquiry into legal error “requires the

court to ask whether ‘the claimant has had a full hearing under

the [Commissioner’s] regulations and in accordance with the

beneficent purposes of the [Social Security] Act.’” Moran v.

Astrue, 569 F.3d 108, 112 (2d Cir. 2009). The reviewing court

does not have the authority to conduct a de novo review, and may

not substitute its own judgment for that of the ALJ, even when

it might have justifiably reached a different result. Cage v.

Comm'r of Sec. Sec., 692 F.3d 118, 122 (2d Cir. 2012).

To receive disability benefits, claimants must be

“disabled” within the meaning of the Act. See 42 U.S.C. §§

423(a), (d). A claimant is disabled under the Act when he is

unable to “engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or

can be expected to last for a continuous period of not less than

12 months.” 42 U.S.C. § 423(d)(1)(A); Shaw v. Chater, 221 F.3d

126, 131–32 (2d Cir. 2000). The impairment must be of “such

severity” that the claimant is unable to do his previous work or

engage in any other kind of substantial gainful work. 42 U.S.C.

§ 423(d)(2)(A). “The Commissioner must consider the following

in determining a claimant’s entitlement to benefits: ‘(1) the

objective medical facts [and clinical findings]; (2) diagnoses

or medical opinions based on such facts; (3) subjective evidence

of pain or disability . . . ; and (4) the claimant’s educational

background, age, and work experience.’” Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,

174 F.3d 59, 62 (2d Cir. 1999)).

Pursuant to regulations promulgated by the

Commissioner, a five-step sequential evaluation process is used

to determine whether the claimant’s condition meets the Act’s

definition of disability. See 20 C.F.R. § 404.1520. This

process is essentially as follows:

[I]f the Commissioner determines (1) that the claimant

is not working, (2) that he has a ‘severe impairment,’

(3) that the impairment is not one [listed in Appendix

1 of the regulations] that conclusively requires a

determination of disability, and (4) that the claimant

is not capable of continuing in his prior type of

work, the Commissioner must find him disabled if (5)

there is not another type of work the claimant can do.

Burgess, 537 F.3d at 120 (internal quotation marks and citation

omitted); see also 20 C.F.R. § 404.152(a)(4). At any of the

previously mentioned steps, if the answer is “no,” then the

analysis stops and the ALJ must find that claimant is not

disabled under the Act.

During this five-step process, the Commissioner must

consider whether “the combined effect of any such impairment . .

. would be of sufficient severity to establish eligibility for

Social Security benefits.” 20 C.F.R. § 404.1523. Further, if

the Commissioner does find a combination of impairments, the

combined impact of the impairments, including those that are not

severe (as defined by the regulations), will be considered in

the determination process. 20 C.F.R. § 416.945(a)(2). In steps

one through four of the sequential five-step framework, the

claimant bears the “general burden of proving . . . disability.”

Burgess, 537 F.3d at 128. In step five, the burden shifts from

the claimant to the Commissioner, requiring that the

Commissioner show that, in light of the claimant’s RFC, age,

education, and work experience, the claimant is “able to engage

in gainful employment within the national economy.” Sobolewski

v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y. 1997).

DISCUSSION

I. The ALJ’s Disability Determination

Using the five-step sequential process to determine

whether a claimant is disabled as mandated by 20 C.F.R. §

416.971, the ALJ determined at step one that the plaintiff had

not engaged in substantial gainful activity since August 25,

2015, the application date. (Tr. 17.) At step two, the ALJ

found that the plaintiff suffered from the severe impairments of

depression, anxiety, and substance abuse disorder. (Id.) The

ALJ considered the plaintiff’s conditions of degenerative disc

disease, osteoarthritis, obesity, diabetes mellitis,

hyperlipidemia, and plantar fascitis, but found them to be non-

severe. (Id. 17-18.)

At step three, the ALJ determined that, from August

25, 2017 through the date of the hearing, the plaintiff did not

have an impairment or combination that meets or medically equals

one of the listed impairments in Appendix 1 of the regulations,

20 C.F.R. § 404.1520, App’x 1 (20 C.F.R. §§ 416.920(d) and

416.926), although the ALJ did consider Listings 12.04, 12.06,

and 12.15. (Tr. 18-20.) The ALJ found that, as of the hearing

date, plaintiff was capable of performing work at all exertional

levels but with non-exertional limitations, namely, a “low

stress environment defined as occasional use of judgment,

occasional decision-making and occasional changes in a work

setting.” (Id. 20.) The ALJ added that plaintiff should be

limited “to simple, routine and repetitive tasks,” and stated

that he “should not work at a production pace.” (Id.)

The ALJ arrived at this RFC, in part, by assigning

“limited weight” to the opinion of Dr. Rybakov, which the ALJ

found “inconsistent with the record as a whole and not supported

by relevant evidence”. (Tr. 22.) The plaintiff argues that the

ALJ erred in failing to fully develop the record and in not

giving weight to the opinion of Dr. Rybakov. (See ECF No. 15-1,

Pl.’s Mem. 3-4.) The court agrees. The ALJ failed to develop

the record and was not able to properly weigh the medical

opinion of Dr. Rybakov on the basis of an incomplete medical

record.

II. Failure to Develop Record

As noted above, the ALJ made no mention of plaintiff’s

request to subpoena Dr. Rybakov’s records in her decision, nor

did she make any mention of the request at the hearing.

Moreover, the record does not indicate that the ALJ issued the

subpoena.

According to SSA regulations, the Commissioner must

“make every reasonable effort” to assist the claimant in

developing a “complete medical history.” 20 C.F.R. §

404.1512(b). Furthermore, “[i]t is the rule in our circuit that

the ALJ, unlike a judge in a trial, must [her]self affirmatively

develop the record in light of the essentially non-adversarial

nature of a benefits proceeding. This duty . . . exists even

when, as here, the claimant is represented by counsel.” Pratts

v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (internal citations and

quotations omitted, brackets in original).

Thus, if the claimant’s medical record is inadequate,

it is “the ALJ's duty to seek additional information from [the

treating physician] sua sponte.” Schaal, 134 F.3d at 505; see

Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (“[A]n ALJ

cannot reject a treating physician's diagnosis without first

attempting to fill any clear gaps in the administrative

record.”).

Recently promulgated regulations impose a duty on each

party to timely advise the SSA of outstanding treatment sources.

See, e.g., 20 CFR §§ 404.935, 416.1435. Specifically, a

plaintiff must make “every effort” to inform the SSA about

evidence or submit evidence no later than five business days

before the hearing. Id. In adopting the five-day rule, the SSA

specifically sought to “appropriately balance the twin concerns

of fairness and efficiency.” Ensuring Program Uniformity at the

Hearing and Appeals Council Levels of the Administrative Review

Process, 81 FR 90987, 90990, 2016 WL 7242991 (Dec. 16, 2016).

The SSA contemplated that the rule would “ensure claimants have

the benefit of a fully developed record at the time our ALJs

conduct their hearings.” Id.

Here, plaintiff advised the ALJ on Thursday, August

24, 2017 of outstanding records at St. Mark’s Place Institute,

less than five business days before the scheduled August 29,

2017 hearing. Though, at first blush, plaintiff appears to have

run afoul of the five-day rule, the regulations contain an

exception whereby the ALJ must accept otherwise untimely

submissions of evidence that were “actively and diligently

sought . . . from a source and the evidence was not received or

was received less than 5 business days prior to the hearing.”

20 C.F.R. § 404.935.

Plaintiff adequately gave notice to the ALJ that there

was outstanding medical evidence when he filed his letter

advising the ALJ that the medical records from St. Mark’s Place

Institute were outstanding and requesting assistance in

obtaining them. Plaintiff only retained his counsel six weeks

prior to the date of the hearing, when Mr. Schoffman filed his

request for subpoena, and he advised the ALJ that he had already

requested the medical records and been promised them. Thus,

plaintiff acted with due diligence under the circumstances, and

complied with the five-day rule.

More importantly, even if the plaintiff’s attorney had

not requested assistance in obtaining the records underlying Dr.

Rybakov’s psychological assessment and advised the ALJ of their

existence, the ALJ was aware or should already have been aware

that the medical records were outstanding, and therefore should

have requested the records. A plaintiff is not required to

obtain records but only to notify the ALJ of their existence:

“Rather, the claimant ‘must make every effort to ensure that the

administrative law judge receives all of the evidence,’” which a

claimant can do “by informing the ALJ about or submitting the

evidence to the ALJ” no later than five business days before the

scheduled hearing. Drogo v. Comm'r of Soc. Sec., No. 6:18-CV-

6105, 2019 WL 2569599, at *4 (W.D.N.Y. June 21, 2019) (emphasis

in original, citation omitted). Once a plaintiff notifies the

ALJ about the outstanding records, “the ALJ cannot decline to

‘obtain’ them.” Id. On May 18, 2017, the first hearing date,

plaintiff made the ALJ aware of his treatment with Dr. Rybakov

by providing the ALJ with Dr. Rybakov’s opinion statement. In

addition, prior to plaintiff’s retention of counsel, Dr.

Rybakov’s opinion had already been entered as an exhibit in the

file and the opinion itself indicated that the plaintiff had

been treated on a weekly basis for over a year. As plaintiff

was still proceeding pro se, the ALJ was made aware of relevant

outstanding evidence of ongoing treatment, and accordingly, was

obligated to request those treatment records.

In addition, the fact that Dr. Rybakov had been

treating plaintiff weekly for over one year, and had concluded

that plaintiff suffered from a host of psychological conditions,

including major depressive disorder, opioid dependence in

remission, and PTSD, should have prompted the ALJ to infer the

existence of additional medical records underlying Dr. Rybakov’s

brief four-page assessment. Candelaria o/b/o J.L.G.L. v. Saul,

a case decided last year in the Western District of New York, is

on-point. No. 18-CV-557, 2019 WL 4140937, at *6 (W.D.N.Y. Aug.

30, 2019). The court stated that:

Here, the ALJ found that the medical evidence before

him was insufficient to “indicate that [the claimant’s

aneurysm] is expected to last more than 12 months” and

that the aneurysm therefore was non-severe. But a

treatment note, to which the ALJ referred in his

decision, indicated the claimant’s “[h]istory of

[arteriovenous] malformation,” and that “the claimant

was scheduled for an embolization procedure in early

August 2017.” The results of that test, were among

the evidence the ALJ excluded. In other words,

evidence in the record indicated that there was other

evidence that might be relevant to the ALJ’s

conclusion. In light of that reference in the record,

and given the ALJ’s duty to develop the record, the

ALJ erred in refusing to consider the evidence that

the attorney had requested but not yet received by the

hearing date.

Id. (emphasis in original, record citations omitted). Here, the

ALJ was alerted to additional records at the time of the first

hearing, and, in accordance with her duty to develop the record,

was required to consider the records of St. Mark’s Place

Institute that plaintiff’s attorney had requested but not yet

received by the date of the second hearing.

The records requested by plaintiff’s attorney were

clearly relevant. The ALJ assigned little weight to Dr.

Rybakov’s opinion in her decision because, in part, “it was not

supported by relevant evidence.” (Tr. 22.) But Dr. Rybakov’s

opinion indicates that treatment notes exist for about fifty

separate visits over the course of more than a year of

treatment. (Id. 395, 22.) The ALJ erred by taking no action to

obtain those records and, instead, citing their absence as a

basis to discredit Dr. Rybakov’s opinions.

Accordingly, the court remands this case with the

direction that the additional records be obtained and

considered.

III. Failure to Properly Weigh Medical Evidence

It is reversible error for an ALJ to determine the

weight of a medical opinion where the treatment records

underlying the opinion have not been obtained. “The ALJ has an

obligation to develop the record in light of the non-adversarial

nature of the benefits proceedings, regardless of whether the

claimant is represented by counsel.” Shaw, 221 F.3d at 131.

“Needless to say, the ALJ cannot assess the amount of medical

evidence supporting a treating physician’s opinion on an

incomplete record.” Tirrell v. Berryhill, No. 15-CV-518 (KAM),

2018 WL 2048879, at *17 (E.D.N.Y. May 1, 2018). Thus, “an ALJ

cannot reject a treating physician’s diagnosis without first

attempting to fill any clear gaps in the administrative record.”

Burgess, 537 F.3d at 129 (quoting Rosa, 168 F.3d at 79).

“[W]here . . . an ALJ concludes that the opinions or reports

rendered by a claimant’s treating physicians lack objective

clinical findings, she may not reject the opinion as unsupported

by objective medical evidence without taking affirmative steps

to develop the record in this regard.” Rivas v. Barnhart, No.

01 Civ. 3672 (RWS), 2005 WL 183139, at *23 (S.D.N.Y. Jan. 27,

2005). Moreover, “[a]n ALJ’s affirmative obligation to develop

the record also includes the obligation to contact a claimant’s

treating physicians and obtain their opinions regarding the

claimant’s residual functional capacity.” Tirado v. Astrue, No.

10-CV-2482 (ARR), 2012 WL 259914, at *4 (E.D.N.Y. Jan. 25, 2012)

(citing LoRusso v. Astrue, No. 08-CV-3467 (RJD), 2010 WL

1292300, at *7 (E.D.N.Y. March 31, 2010)).

At bottom, the opinion of Dr. Rybakov could not be

properly weighed in the absence of his underlying treatment

records, and the ALJ erred in finding that Dr. Rybakov’s

opinions were entitled to limited weight. Dr. Rybakov made his

findings on the basis of more than fifty visits by plaintiff,

but the underlying treatment notes were never entered into the

record, and were unavailable for review. Because the court

remands on this basis, the court will not address the

plaintiff’s remaining arguments as to the weight assigned to the

medical opinions. On remand, the ALJ will be required to obtain

and consider the complete record as a whole, and as she

considers the consistency of Dr. Rybakov’s opinions with those

of other sources, it is possible that the weight assigned to

other medical opinions may change.

CONCLUSION

For the reasons stated above, plaintiff’s cross-motion

for judgment on the pleadings is GRANTED in part, and

defendant’s motion for judgment on the pleadings is DENIED in

its entirety. The court remands this action for further

proceedings consistent with this Memorandum and Order.

Specifically, the ALJ shall develop the record by obtaining the

treatment notes underlying Dr. Rybakov’s psychological

assessment of the plaintiff, and shall assign the appropriate

weight to Dr. Rybakov’s opinion in light of plaintiff’s

underlying treatment records, and in context of the full record.

SO ORDERED.

Dated: Brooklyn, New York

April 25, 2020

/s/

Hon. Kiyo A. Matsumoto

United States District Judge