Antonetti v. Berryhill

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MARIBEL ANTONETTI, NOT FOR PUBLICATION

Plaintiff,

MEMORANDUM AND ORDER

v.

19-cv-1396(KAM)

COMMISSIONER OF THE SOCIAL SECURITY

ADMINISTRATION,

Defendant.

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MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C. § 405(g), Maribel Antonetti

(“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 she is disabled under the

Act and is thus entitled to receive the aforementioned benefits.

Presently before the court are plaintiff’s motion for

judgment on the pleadings and defendant’s cross-motion for

judgment on the pleadings. For the reasons stated below,

defendant’s motion is DENIED, plaintiff’s motion is GRANTED, and

the case is remanded for further proceedings consistent with

this Memorandum and Order.

BACKGROUND

I. Procedural History

On September 27, 2013, plaintiff Maribel Antonetti

filed an application for disability insurance benefits as well

as an application for supplemental security income benefits.

(ECF No. 17, Administrative Transcript (“Tr.”) 247-50, 251-57.)

The alleged onset of her disability was January 2, 2012. (Id.)1

At a date undetermined by the record, the SSA denied

the plaintiff’s application for social security disability

insurance benefits on the basis that she had not worked long

enough to qualify for benefits under Title II of the Act. (Tr.

262.) On November 21, 2013, the SSA denied the plaintiff’s

application for supplemental security income on the grounds that

she was not disabled within the meaning of the Act. (Id. 112-

17.) On December 10, 2013, the plaintiff requested a hearing

before an Administrative Law Judge (“ALJ”). (Id. 120-22.) On

July 31, 2015, plaintiff appeared and testified before ALJ

Marissa Pizzutto. (Id. 46-59.) By a decision dated January 14,

2016, ALJ Pizzutto determined that plaintiff was not disabled

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

to benefits. (Id. 91-106.)

1 The complaint refers to January 20, 2008 as plaintiff’s disability

onset date (ECF No. 1, Complaint (“Compl.”) 1), but the record as a whole

belies this assertion.

On January 19, 2016, plaintiff appealed the ALJ’s

decision to the Appeals Council. (Tr. 168-72.) On January 27,

2017, the Appeals Council remanded the case and directed the ALJ

to call a vocational expert to testify at the hearing. (Id.

107-11.) Because the plaintiff had moved during the pendency of

his appeal, the case was remanded to a different hearing office

and, consequently, a different ALJ. (Id.) On January 1, 2018,

the plaintiff appeared for a hearing before ALJ Jay Cohen. (Id.

60-82.) On March 1, 2018, ALJ Cohen determined, as did ALJ

Pizzutto, that the plaintiff was not disabled within the meaning

of the Act and, therefore, was not entitled to benefits. (Id.

12-31.) On March 7, 2018, plaintiff appealed ALJ Cohen’s

decision to the Appeals Council. (Id. 243-46.) On January 9,

2019, the Appeals Council denied plaintiff’s request for review,

making the ALJ’s decision the final decision of the

Commissioner. (Id. 1-6.) On March 11, 2019, plaintiff filed

the instant action in federal court. (See generally Compl.)

II. Medical and Non-Medical Evidence

The parties in this matter filed a Joint Stipulation of

Relevant Facts (“Stip.”) on October 25, 2019. (ECF No. 16-1.)

The court hereby incorporates the facts contained therein by

reference, and further addresses only the evidence relevant to

the disposition of the instant motions.

A. Treating Psychiatrist Faisal Chaudhry, MD

On January 4, 2018, Faisal Chaudhry, MD, a

psychiatrist on staff at Woodhull Medical Center, completed a

Psychiatric/Psychological Impairment Questionnaire for

plaintiff. (Tr. 871-75.) Dr. Chaudhry stated that he first

treated the plaintiff on July 13, 2015, and saw plaintiff

monthly thereafter until November 9, 2017. (Id. 871.) Dr.

Chaudhry diagnosed plaintiff with major depressive disorder and

noted the following clinical signs and symptoms: depressed mood,

hostility or irritability, illogical thinking, past suicide

attempts and suicidal ideation, difficulty thinking or

concentrating, anhedonia/pervasive loss of interest, decreased

energy, psychomotor retardation, social withdrawal or isolation,

visual hallucinations of shadows, and sleep disturbances. (Id.

872.) Dr. Chaudhry opined that the plaintiff was not a

malingerer. (Id. 871.) Dr. Chaudhry also stated that

plaintiff’s most frequent symptoms were hostility and

irritability and that plaintiff had difficulty controlling her

anger and, moreover, that her anger would worsen due to her

physical impairments, including loss of balance and sharp pain.

(Id. 873.) Dr. Chaudhry stated that plaintiff’s symptoms date

back as far as July 13, 2015, the date he was first treated by

Dr. Chaudhry. (Id. 875.)

Dr. Chaudhry opined that plaintiff was markedly

limited in: her ability to carry out detailed instructions;

perform activities within a schedule and be punctual; sustain an

ordinary routine without supervision; complete a workday without

interference from psychological symptoms; perform at a

consistent pace without unreasonable rest periods; and accept

instruction and respond appropriately to criticism from

supervisors. (Tr. 874.) Dr. Chaudhry further opined that

plaintiff would have a moderate to marked limitation in her

ability to remember locations and work procedures; understand

and remember detailed instructions; carry out simple one- to

two-step instructions; maintain attention and concentration for

extended periods; maintain socially appropriate behavior; adhere

to basic standards of neatness; and travel to unfamiliar places

or use public transportation. (Id.) Dr. Chaudhry also stated

that plaintiff had, at most, mild limitations with respect to:

her ability to work in coordination with, or close proximity to

others, without being distracted by them; interact appropriately

with the public; and ask simple questions or request assistance.

(Id.) He opined that, on average, plaintiff would miss work

more than three times a month due to her impairments. (Id.

875.)

B. Medical Opinion of Consultative Examiner Johanina

McCormick, PhD

On November 6, 2013, the plaintiff was examined by

Johanina McCormick, PhD, at the request of the Administration.

(Tr. 522-26.) Dr. McCormick found that plaintiff’s demeanor and

responsiveness were adequate. (Id. 523.) She further found

that plaintiff’s motor behavior was normal; her eye contact was

appropriate; her expressive language was adequate; her affect

was dysphoric; and her mood was dysthymic. (Id.) Dr. McCormick

assessed that plaintiff was oriented, had full affect and no

signs of delusions or paranoia, and that her mood was “neutral.”

(Id. 332.) Dr. McCormick noted that, with respect to

plaintiff’s cognitive state, her attention, concentration, and

memory skills were mildly impaired due to discomfort and

depression, her intellectual functioning appeared to be below

average, and her insight and judgment were both “fair.” (Id.

524.)

Dr. McCormick did acknowledge, however, that plaintiff

can dress, bathe, and groom herself but needed help with

cooking, cleaning, and laundry. (Tr. 524.) Plaintiff’s husband

assisted her with cooking, cleaning, and laundry, and plaintiff

did not drive but could take public transportation. (Id.)

Plaintiff also reported to Dr. McCormick that she did not

socialize. (Id.) Dr. McCormick opined that the plaintiff could

follow and understand simple directions and perform simple

tasks; that she is mildly impaired in maintaining attention and

concentration; would “need help” to maintain a schedule, or

learn new tasks; is mildly impaired in performing complex tasks

and needs supervision; is able to make appropriate decisions; is

mildly impaired in relating to others; and is mildly impaired in

dealing with stress. (Id. 524-525.) Dr. McCormick recommended

that the plaintiff continue with treatment, and stated that the

plaintiff’s prognosis was “fair, given treatment compliance and

the support of her immediate family.” (Id. 525.)

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)). 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, 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 she 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 her 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 (quoting Green-Younger v. Barnhart, 335

F.3d 99, 106 (2d Cir. 2003) (internal quotation marks omitted));

see also 20 C.F.R. § 404.152(a)(4).

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).

Lastly, federal regulations explicitly authorize a

court, when reviewing decisions of the SSA, to order further

proceedings when appropriate. “The court shall have power to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g). Remand is

warranted where “there are gaps in the administrative record or

the ALJ has applied an improper legal standard.” Rosa v.

Callahan, 168 F.3d 72, 82–83 (2d Cir. 1999) (quoting Pratts v.

Chater, 94 F.3d 34, 39 (2d Cir. 1996)) (internal quotation marks

omitted). Remand is particularly appropriate where further

findings or explanation will clarify the rationale for the ALJ’s

decision. Pratts, 94 F.3d at 39. However, if the record before

the court provides “persuasive proof of disability and a remand

for further evidentiary proceedings would serve no purpose,” the

court may reverse and remand solely for the calculation and

payment of benefits. See, e.g., Parker v. Harris, 626 F.2d 225,

235 (2d Cir. 1980); Kane v. Astrue, 942 F. Supp. 2d 301, 314

(E.D.N.Y. 2013).

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 the

application date of August 5, 2013. (Tr. 18.) At step two, the

ALJ found that the plaintiff suffered from the severe

impairments of osteoarthritis of the knees and hips, bilateral

carpal tunnel syndrome, obesity, asthma, diabetes mellitus, and

depression. (Id.) Additionally, the ALJ found that the

plaintiff suffered from the following non-severe impairment:

cocaine abuse in sustained remission. (Id.)

At step three, the ALJ determined that from August 5,

2013, 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, Appendix 1 (20 C.F.R. §§ 416.920(d) and

416.926), although the ALJ considered Listing 1.04, as well as

Listings 3.03, 9.00, 14.09, and 12.04. (Tr. 18-20.) The ALJ

found that from August 19, 2013, through the date of the

hearing, the plaintiff would be capable of performing sedentary

work with exceptions that the claimant can sit for one hour at a

time for a total of six hours; can stand or walk for thirty

minutes at a time for a total of two hours; can frequently use

her hands for fine and gross manipulation to accommodate her

carpal tunnel syndrome; must avoid exposure to respiratory

irritants and extremes of heat and cold; and is limited to

performing simple routine tasks and repetitive work. (Id. 20.)

At step four, the ALJ concluded that plaintiff had no

past relevant work experience. (Tr. 24.) At step five, the ALJ

found that plaintiff was capable of performing work that was

available in the national economy from August 5, 2013, through

the date of the hearing. (Id. 24-25.) Thus, the ALJ concluded

that plaintiff was not disabled within the meaning of the Act,

as defined in 20 C.F.R. § 416.920(g). (Id. 25-26.)

II. Analysis

In the main, plaintiff asserts the ALJ erred by not

properly weighing the medical evidence, and by failing to

develop the record. The court agrees.

A. The ALJ Failed to Develop the Record Regarding the

Treating Physician’s Opinion

The ALJ found that Dr. Chaudhry’s opinions were

entitled to less-than-controlling weight, stating that the

opinion was inconsistent with treatment notes. According to the

ALJ, “[w]hile Dr. Chaudhry reported that the results are

consistent with the mental status examinations he administered

over the years he did not provide the results of those

examinations and his statements are conclusory and without

corroboration”. (Tr. 23.) Indeed, it appears that Dr.

Chaudhry’s treatment notes are not contained in the record. Dr.

Chaudhry treated the plaintiff at Woodhull Medical Center and

noted that he began treating the plaintiff on July 13, 2015.

(Id. 875.) The medical records from Woodhull Medical include

one initial psychiatric evaluation performed by Dr. Chaudhry on

July 13, 2015, thus substantiating Dr. Chaudhry’s statement

regarding the commencement date for plaintiff’s treatment. (Id.

557-60.) Additional treatment notes from Woodhull Medical

Center for the period November 10, 2010 through July 13, 2015

are contained in the record. (Id. 561-671.) Noticeably absent,

however, are any records from Woodhull Medical Center subsequent

to July 13, 2015. Nor is there any indication in the record

that the ALJ requested those records, or asked the plaintiff’s

attorney to request them.

According to the 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)(1)(i-ii). 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, 94 F.3d at 38 (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, 168 F.3d at 79

(“[A]n ALJ cannot reject a treating physician’s diagnosis

without first attempting to fill any clear gaps in the

administrative record.”).

The ALJ either knew, or should have known of the

existence of additional treatment notes absent from the record,

based on Dr. Chaudhry’s statement that he had seen the plaintiff

on a monthly basis for a period of two years, and that his

opinions were supported by his treatment notes. (Tr. 871-75.)

This is further corroborated by the record itself, which

includes a note from Dr. Chaudhry reflecting the date his

treatment of plaintiff commenced. (Id. 557-60.)

The ALJ’s failure to obtain the underlying treatment

records likewise calls into question the weight he assigned to

Dr. Chaudhry’s opinion. Needless to say, an ALJ cannot assess

the amount of medical evidence supporting a treating physician’s

opinion on an incomplete record. “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. 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, an 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.” Tirrell v. Berryhill,

No. 15-CV-518 (KAM), 2018 WL 2048879, at *17 (E.D.N.Y. May 1,

2018) (citations, brackets, and internal quotation marks

omitted). Accordingly, the court cannot find that the ALJ has

properly weighed Dr. Chaudhry’s opinion.

Nor is the ALJ’s failure to develop the record somehow

excused, as the Commissioner avers, by the fact that plaintiff

was represented by counsel and had time to submit medical

records. (ECF No. 15, Memorandum of Law in Support of

Defendant’s Cross-Motion for Judgment on the Pleadings (“Def.’s

Mot.”) 9.) The Second Circuit has made clear that the ALJ’s

duty to develop the record is unyielding, regardless of whether

the claimant proceeds pro se or with counsel. See Perez v.

Chater, 77 F.3d 41, 47 (2d Cir. 1996) (“[T]he ALJ generally has

an affirmative obligation to develop the administrative record.

This duty exists even when the claimant is represented by

counsel.”) (internal citations omitted); Barbour v. Astrue, 950

F. Supp. 2d 480, 489 (E.D.N.Y. 2013) (“In a SSA proceeding, the

ALJ generally has an affirmative obligation to develop the

administrative record, even when a plaintiff is represented by

counsel.”) (internal quotation omitted.)

The Commissioner nevertheless raises three contentions

to support the ALJ’s assignment of less-than-controlling weight

to Dr. Chaudhry’s opinion. (Def.’s Mot. 5-10.) As the court

explains below, the reasoning on which the Commissioner relies

is flawed, and ultimately, unavailing. The Commissioner first

asserts that the ALJ relied on evidence that purportedly

contradicted Dr. Chaudhry’s assessment, and relies on well-

established precedent that the opinion of treating physicians

like Dr. Chaudhry need not be given controlling weight when

“they are contradicted by other substantial evidence in the

record.” (Def.’s Mot. 6 (quoting Veino v. Barnhart, 312 F.3d

578, 588 (2d Cir. 2002)). The Commissioner next contends that,

although the ALJ failed to supplement the record with Dr.

Chaudhry’s missing treatment notes, further development of the

record was unnecessary because the record before the ALJ was

already “adequate . . . to make a determination as to

disability.” (Id. 8 (quoting Perez v. Chater, 77 F.3d 41, 48

(2d Cir. 1996)). Finally, the Commissioner maintains that, even

if Dr. McCormick lacked the requisite medical history for

plaintiff in order to reach a substantive conclusion, a

consulting examiner does not need all medical notes to render an

opinion. (Id. 9-10.)

The Commissioner’s first contention, that there was

evidence on record contradicting Dr. Chaudhry’s findings,

ignores the timing of Dr. Chaudhry’s treatment of plaintiff

relative to other doctors. Plaintiff was treated by various

doctors at the Community Healthcare Network from the alleged

onset of her disability until July 2015. (Stip. 4-6.) From

July 2015 on, however, Dr. Chaudhry treated plaintiff regularly

at the Woodhull Medical Center. (Id. 6.) A person is disabled

if they are “unable to engage in any substantial gainful

activity” due to medical reasons “for a continuous period of not

less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A). Well over twelve months elapsed between July

2015, when Dr. Chaudhry assumed the role of plaintiff’s treating

psychiatrist, and March 1, 2018, when the ALJ rendered his

decision. Simply accepting, without further inquiry, that

plaintiff’s pre-2015 medical history undermines Dr. Chaudhry’s

opinion based on subsequent medical developments, ignores the

real possibility that plaintiff’s condition deteriorated

substantially after 2015. (See Tr. 21-23.) In the absence of

Dr. Chaudhry’s complete treatment notes, and the detailed

treatment notes from the Community Healthcare Network, all of

which pre-dated Dr. Chaudhry’s treatment of plaintiff, ALJ

lacked “good reasons” for discounting Dr. Chaudhry’s opinion.

20 C.F.R. § 404.1527(c)(2); id. § 416.927(c)(2).

The Commissioner’s second argument, that the

undisputed record provided a sufficient basis for ALJ Cohen’s

decision, has little merit. The Commissioner fails to credibly

assert that an ALJ can make a full assessment of mental

disability without the examination notes of the treating

psychologist who saw the plaintiff on a monthly basis for nearly

three years. It is well-established that, “an ALJ cannot reject

a treating physician's diagnosis without first attempting to

fill any clear gaps in the administrative record.” Cook v.

Apfel, 1 F. App’x 13, 15 (2d Cir. 2001) (quoting Rosa, 168 F.3d

at 79). Here, the ALJ neither had, nor endeavored to procure,

the very examination records and treatment notes that may have

corroborated Dr. Chaudhry’s assessments. It is no wonder then,

that the ALJ found Dr. Chaudhry’s statements to be “conclusory

and without corroboration.” (See Tr. 23.) “[I]nstead of

rejecting the opinion of a specialist who treated [the

plaintiff] the ALJ should have sought clarification.” Nuzzo v.

Colvin, 12–CV–2373 FB, 2013 WL 2626873, at *2 (E.D.N.Y. June 11,

2013).

As to the Commissioner’s final point, although the

court agrees that Dr. McCormick’s opinion is not rendered

invalid per se solely because it was based on an incomplete body

of plaintiff’s medical records (Def.’s Mot. 9-10), the court

cannot conclude that her opinion constitutes “substantial

evidence” to deprive Dr. Chaudhry’s opinion of less-than-

controlling weight. As discussed above, there is a significant

gap in Dr. Chaudhry’s treatment records for plaintiff, which the

ALJ did not attempt to bridge. Dr. McCormick’s opinion was

based on an assessment of plaintiff’s condition more than a

year-and-a-half before Dr. Chaudhry first treated her. Without

these missing records, the ALJ lacked a reasonably articulable

basis to conclude that Dr. McCormick’s opinion contradicted that

of plaintiff’s treating physician, as opposed to reflecting

plaintiff’s condition before a period of deterioration that left

her unable to work.

At bottom, it was error for the ALJ to assign less-

than-controlling weight to Dr. Chaudhry’s opinion without

seeking the full record of his underlying treatment notes. The

court, therefore, remands this case with the instruction that

the ALJ fully develop the record, and reconsider the weight

afforded to Dr. Chaudhry’s opinion in light of any supplemental

evidence.

B. The ALJ Must Evaluate Plaintiff’s Testimony in Light

of the Fully-Developed Record

The plaintiff also contends that the ALJ

inappropriately dismissed her testimony regarding the severity

and persistence of her condition. (ECF No. 13, Plaintiff’s

Memorandum of Law in Support of Her Motion for Judgment on the

Pleadings (“Pl.’s Mot.”) 6-8; Tr. 21.) The ALJ stated that

plaintiff’s “medically determinable impairments could reasonably

be expected to cause the alleged symptoms” but found her

statements concerning the intensity, persistence, and limiting

effects of her symptoms “not entirely consistent with the

medical evidence and other evidence in the record . . . .” (Tr.

21.)

Complete consistency between the medical evidence and

a claimant’s description of symptoms, however, is not the

relevant standard. To evaluate a claimant’s testimony regarding

the intensity and persistence of her symptoms, the ALJ must

first decide whether the claimant suffers from a medically

determinable impairment that could reasonably be expected to

produce the symptoms alleged. Bayles v. Colvin, No. 1:15-CV-

01013(MAT), 2018 WL 822221, at *5 (W.D.N.Y. Feb. 13, 2018)

(citing 20 C.F.R. §§ 404.1529(b), 416.929(b)); see also Titles

II & XVI: Evaluation of Symptoms in Disability Claims: Assessing

the Credibility of an Individual’s Statements, SSR 96-7P, 1996

WL 374186, at *2 (S.S.A. July 2, 1996). If so, the ALJ next

must consider “the extent to which [the claimant’s] symptoms can

reasonably be accepted as consistent with the objective medical

evidence and other evidence” of record. 20 C.F.R. §§

404.1529(b), 416.929(b)). If the claimant’s “pain contentions

are not substantiated by the objective medical evidence,” the

ALJ must assess the claimant’s credibility. Meadors v. Astrue,

370 F. App’x 179, 183–84 (2d Cir. 2010) (citing 20 C.F.R. §

404.1529(c)(3)(i)–(vii); Taylor v. Barnhart, 83 F. App’x 347,

350–51 (2d Cir. 2003)). “In explaining the credibility

assessment . . . an ALJ’s opinion ‘must contain specific reasons

for the finding on credibility, supported by the evidence in the

case record, and must be sufficiently specific to make clear to

the individual and to any subsequent reviewers the weight the

adjudicator gave to the individual’s statements and the reasons

for that weight.’” Tornatore v. Barnhart, 05-CV-6858, 2006 WL

3714649, at *5 (S.D.N.Y. Dec. 12, 2006); see also Wright v.

Astrue, No. 06-CV-6014, 2008 WL 620733, at *3 (E.D.N.Y. March 5,

2008).

In light of the deficiencies in the record, the ALJ is

instructed to re-evaluate the plaintiff’s testimony in light of

a fully-developed record, and the objective medical evidence

presented by Dr. Chaudhry’s treatment notes.

CONCLUSION

For the reasons set forth above, the court grants

plaintiff’s motion for judgment on the pleadings; denies

defendant’s cross-motion for judgment on the pleadings; and

remands this case for further proceedings consistent with this

Memorandum and Order. The Clerk of Court is respectfully

directed to close this case and enter judgment in favor of

plaintiff.

SO ORDERED.

Dated: Brooklyn, New York

July 11, 2020

/s/

Hon. Kiyo A. Matsumoto

United States District Judge