# Antonetti v. Berryhill

> District Court, E.D. New York · July 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10304494

## Case

- **Court:** District Court, E.D. New York
- **Decided:** July 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
MARIBEL ANTONETTI, NOT FOR PUBLICATION

Plaintiff,
MEMORANDUM AND ORDER
v.
19-cv-1396(KAM)
COMMISSIONER OF THE SOCIAL SECURITY
ADMINISTRATION,

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304494. Public record. Not legal advice.