# Ocasio v. Commissioner of Social Security

> District Court, E.D. New York · April 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10304115

## Case

- **Court:** District Court, E.D. New York
- **Decided:** April 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10304115

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
LUIS F. OCASIO, NOT FOR PUBLICATION

Plaintiff,
SUMMARY ORDER
v.
18-cv-2472(KAM)
COMMISSIONER OF SOCIAL SECURITY,

Defendant.
----------------------------------X
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304115. Public record. Not legal advice.