Hsieh v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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EMMY HAN HSIEH,

Plaintiff,

-against- MEMORANDUM AND ORDER

21-CV-1793 (KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Emmy Han Hsieh (“Plaintiff”) appeals the final

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

the “Commissioner”) finding her not disabled within the meaning of

the Social Security Act (the “Act”) and not entitled to disability

insurance benefits under Title II of the Act. Plaintiff and the

Commissioner have cross-moved for judgment on the pleadings. For

the reasons herein, Plaintiff’s motion is GRANTED, the

Commissioner’s cross-motion is DENIED, and the case is REMANDED

for further proceedings consistent with this Memorandum and Order.

BACKGROUND

The parties have filed a joint stipulation of relevant facts,

which the court has reviewed and incorporates by reference. (See

generally ECF No. 24, Joint Stipulation of Facts (“Stip.”).)

I. Factual and Procedural Background

Plaintiff has been diagnosed with generalized anxiety

disorder and major depressive disorder. (ECF No. 18,

Administrative Transcript (“Tr.”) at 1187-88.) Plaintiff’s

symptoms have varied over time, but have included, according to

her healthcare provider: impaired concentration, poor appetite,

high anxiety, abdominal pain, difficulty sleeping, hypervigilance,

and a depressed mood. (Id. at 668, 704.) During a hearing before

the Social Security Administration (“SSA”), Plaintiff stated that

she rarely leaves the house, she has trouble with her memory, she

has feelings of paranoia, she sleeps only a “little bit” at night,

and she has difficulty going to the store or taking public

transportation without her daughter accompanying her. (Id. at 80-

83.)

Plaintiff has received mental health treatment through the

Charles B. Wang Community Health Center in Flushing, New York,

since April 2014. (Id. at 1186.) Plaintiff was referred for

psychiatric treatment by her primary care provider, and was seen

by psychiatrist Jianping Chen, M.D., on April 25, 2014, who

diagnosed her with general anxiety disorder and major depressive

disorder. (Id. at 1186-88.) Plaintiff subsequently saw Dr. Chen

regularly from April 2014 through at least June 2019, with monthly

visits for medication management. (Id. at 17, 65.) Plaintiff has

also had less consistent psychotherapy sessions with Sook Yee

Yeung, LCSW, (id. at 973-974, 988-989, 1009-1010, 1034-1036, 1044-

1046, 1060-1061, 1097-1098, 1114-1115, 1124-1126, 1143), and with

Wai Sze Sarah Yip, LMSW, (id. at 894, 859), during the same time

period as Plaintiff was treated by Dr. Chen.

Prior to filing for disability, Plaintiff previously worked

as a salesperson at various retail establishments between 1997 to

2002, and between 2003 to 2012. (Id. at 313.) On January 5, 2017,

Plaintiff filed an application for disability insurance benefits,

alleging disability since February 1, 2013. (Tr. at 111, 202.)

Plaintiff claimed that she was disabled due to abdominal pain and

depression. (Id. at 116.)

In connection with her disability insurance benefits

application, Plaintiff met with a consultative examiner. On March

22, 2017, Plaintiff was examined by Dr. Lyudmila Trimba, an

internal medicine specialist, who determined that Plaintiff's

alleged physical impairments did not cause any work-related

restrictions. (Id. at 533-36.) A non-examining state agency

psychiatric consultant, Dr. E. Gagan, also evaluated Plaintiff’s

mental impairments based on a March 27, 2017, review of the record,

and concluded that Plaintiff maintained the mental residual

functional capacity to understand, remember, and carry out simple

instructions; maintain reasonable attention, concentration, and

pace; and interact and adapt to a low-stress work setting requiring

simple tasks. (Id. at 92-96.) Non-examining state agency

psychological consultant Larry Kravitz, Psy.D., also evaluated Ms.

Hsieh’s mental impairments based on a review of the record on April

12, 2017. (Id. at 102.) Dr. Kravitz agreed with Dr. Gagan’s

assessment that Ms. Hsieh was mentally capable of simple, routine

work tasks. (Id.)

Plaintiff's claim for disability insurance benefits was

initially denied on May 2, 2017. (Id. at 112.) Plaintiff then

filed a written request for a hearing before an administrative law

judge. (Id. at 118.) Plaintiff subsequently met with her treating

psychiatrist, Dr. Chen, who completed a psychiatric/psychological

impairment questionnaire summarizing Plaintiff’s conditions on

December 22, 2018. (Id. at 567.) Dr. Chen opined that Plaintiff

had ”marked” and “moderate-to-marked” limitations in her ability

to perform several mental activities due to her mental impairments.

(Id. at 570.) Additionally, Dr. Chen estimated that Plaintiff

would likely be absent from work more than three times per month

due to her impairments. (Id. at 571.)

On May 31, 2019, Plaintiff appeared with her attorney Patrick

Bussey for a video hearing before Administrative Law Judge Scott

Johnson (the “ALJ”). (Id. at 74.) During the hearing, vocational

expert Janice Hastert testified. (Id. at 84.) By decision dated

June 17, 2019, the ALJ determined that Plaintiff was not disabled

within the meaning of the Act from February 1, 2013, her alleged

onset date, through the last date she was insured for benefits,

which was December 31, 2017 (the “date last insured”). (Id. at

22.)

The ALJ found that Plaintiff retained the residual functional

capacity (“RFC”) to perform a “full range of work at all exertional

levels” so long as the following limitations were met: “[s]he was

able to carry out detailed but uninvolved instructions in the

performance of simple, routine, and repetitive tasks; in a work

environment free of fast paced production requirements; involving

only simple, work-related decisions; with few, if any, work place

changes . . . [and with] occasional interaction with the public as

well as frequent interaction with co-workers and supervisors.”

(Id. at 16.) Considering Plaintiff’s “age, education, work

experience, and [RFC],” the ALJ found that “there were jobs that

existed in significant numbers in the national economy that

[Plaintiff] could have performed” and as such, Plaintiff was “not

under a disability . . . from February 1, 2013, the alleged onset

date, through December 31, 2017, the date last insured.” (Id. at

21.) In crafting his RFC, the ALJ considered the opinion evidence

of Plaintiff’s treating physician, Dr. Chen, which the ALJ gave

“little weight,” alongside state agency psychological consultant

Larry Kravitz, Psy.D., which the ALJ gave “significant weight.”

(Id. at 19-20.)

Plaintiff appealed the ALJ’s decision to the Appeals Council

on July 12, 2019. (Id. at 39.) On July 23, 2020, the Appeals

Council denied review of the ALJ’s decision, rendering it the final

decision of the Commissioner. (Id. at 1.) Plaintiff initiated

the instant action on April 2, 2021, after being granted additional

time to file by the Appeals Council on March 5, 2021. (ECF No. 1,

Complaint.)

II. The ALJ’s Decision

Pursuant to the SSA regulations, an ALJ follows a five-step

process for evaluating disability claims, which has been

summarized as follows:

First, the Commissioner considers whether the claimant

is currently engaged in substantial gainful activity. If

[s]he is not, the Commissioner next considers whether

the claimant has a “severe impairment” which

significantly limits h[er] physical or mental ability to

do basic work activities. If the claimant suffers such

an impairment, the third inquiry is whether, based

solely on medical evidence, the claimant has an

impairment which is listed in Appendix 1 of the

regulations. If the claimant has such an impairment, the

Commissioner will consider h[er] [per se] disabled....

Assuming the claimant does not have a listed impairment,

the fourth inquiry is whether, despite the claimant's

severe impairment, [s]he has the residual functional

capacity to perform h[er] past work. Finally, if the

claimant is unable to perform h[er] past work, the

Commissioner then determines whether there is other work

which the claimant could perform.

Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (citing

DeChirico v. Callahan, 134 F.3d 1177, 1179–80 (2d Cir. 1998)).

“The applicant bears the burden of proof in the first four steps

of the sequential inquiry; the Commissioner bears the burden in

the last.” Id. To determine the claimant’s residual functional

capacity (“RFC”), the ALJ must consider the claimant’s

“impairment(s), and any related symptoms, [that] may cause

physical and mental limitations that affect what [the claimant]

can do in a work setting.” 20 C.F.R. § 404.1545(a)(1).

Here, at step one, the ALJ determined that Plaintiff had not

engaged in substantial gainful activity during the period between

her alleged onset date of February 1, 2013, and her date last

insured of December 31, 2017. (Tr. at 13.) At step two, the ALJ

determined that Plaintiff suffered from the severe impairments of

major depressive disorder and generalized anxiety disorder.

(Id.) The ALJ found that Plaintiff's alleged physical impairments

were not sufficiently severe as to satisfy the step two criteria.

(Id.)

At step three, the ALJ determined that, through the date last

insured, Plaintiff did not have an impairment or combination of

impairments that meets or medically equals the severity of one of

the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1

(20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526). (Tr. at 14.)

Specifically, the ALJ found that Plaintiff’s impairments did not

meet the criteria of depressive, bipolar, and related disorders

under Listing 12.04, and anxiety and obsessive-compulsive

disorders under Listing 12.06. (Id. at 14-16.)

Regarding Plaintiff’s mental impairments, the ALJ considered

whether the “B” criteria of the aforementioned mental impairment

listings were satisfied. (Id.) To satisfy the “B” criteria,

Plaintiff’s mental impairments must result in at least one

“extreme” or two “marked” limitations in the following areas of

mental functioning: (1) understanding, remembering, or applying

information; (2) interacting with others; (3) concentrating,

persisting, or maintaining pace; and (4) adapting or managing

oneself. (Id. at 14-15.) Based on his review of the record, the

ALJ determined that Plaintiff had a moderate limitation in each of

the four areas of mental functioning. (Id. at 15-16.)

As discussed supra, the ALJ next determined the Plaintiff’s

RFC as follows:

[T]he claimant ha[s] the residual functional capacity to

perform a full range of work at all exertional levels

but with the following nonexertional limitations. She

[is] able to carry out detailed but uninvolved

instructions in the performance of simple, routine, and

repetitive tasks; in a work environment free of fast

paced production requirements; involving only simple,

work-related decisions; with few, if any, work place

changes. The claimant [can] tolerate occasional

interaction with the public as well as frequent

interaction with co-workers and supervisors.

(Id. at 16.) At step four, the ALJ found that, based on Plaintiff’s

RFC, she would be incapable of performing her past relevant work

as a salesperson. (Id. at 20.) Finally, at step five, the ALJ

found that, based on Plaintiff’s RFC and the vocational expert’s

testimony, there were jobs that existed in significant numbers in

the national economy that Plaintiff could perform, such as tumbler

operator, casting machine tender, and riveting machine operator.

(Id. at 21.) Accordingly, the ALJ found that plaintiff was not

“disabled” and not entitled to disability benefits under the Act.

(Id.)

STANDARD OF REVIEW

To receive disability benefits, a claimant must be “disabled”

within the meaning of the Act. See 42 U.S.C. §§ 423(a), (d). A

claimant qualifies as disabled 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.” Id.

§ 423(d)(1)(A). 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) (alterations in original)).

An unsuccessful claimant for disability benefits under the

Act may bring an action in federal court seeking judicial review

of the Commissioner’s denial of his or her benefits. 42 U.S.C. §

405(g). In reviewing a final decision of the Commissioner, the

reviewing court's role is “limited to determining whether the SSA's

conclusions were supported by substantial evidence in the record

and were based on a correct legal standard.” Talavera v. Astrue,

697 F.3d 145, 151 (2d Cir. 2012) (internal quotation marks and

citation omitted). “Substantial evidence is more than a mere

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Selian v.

Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam) (internal

quotation marks omitted) (quoting Richardson v. Perales, 402 U.S.

389, 401 (1971)). In determining whether the Commissioner's

findings were based on substantial evidence, “the reviewing court

is required to examine the entire record, including contradictory

evidence and evidence from which conflicting inferences can be

drawn.” Id. However, “it is up to the agency, and not [the]

court, to weigh the conflicting evidence in the record.” Clark v.

Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). If there

is substantial evidence in the record to support the Commissioner's

findings as to any fact, those findings are conclusive and must be

upheld. 42 U.S.C. § 405(g); see also Cichocki v. Astrue, 729 F.3d

172, 175–76 (2d Cir. 2013) (per curiam).

Federal law explicitly authorizes 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

On appeal, Plaintiff asserts that the ALJ: (1) improperly

evaluated medical opinion evidence, resulting in an erroneous

determination of Plaintiff’s RFC, and (2) improperly evaluated

Plaintiff’s subjective statements. (ECF No. 20, Plaintiff’s

Memorandum of Law (“Pl. Mem.”), at 1, 7.) For the reasons

discussed below, the Court grants Plaintiff’s motion and remands

to the SSA because the ALJ erred by: (1) failing to adequately

develop the record, and (2) providing an RFC that was not supported

by substantial evidence. On remand, the ALJ should further explain

why the treating psychiatrist’s opinion was not given controlling

weight, and further explain his credibility determinations,

including his reliance on Plaintiff’s evidence of daily living and

delay in seeking care. Lebby v. Comm'r of Soc. Sec., No. 20-cv-

4760 (PKC), 2022 WL 580983, at *4 (E.D.N.Y. Feb. 24, 2022) (“on

remand, the ALJ should further explain his credibility

determinations, including his reliance on evidence of daily

functioning and Plaintiff's ‘conservative’ treatment”).

I. Failure to Develop the Record

“Whether the ALJ has met his duty to develop the record is a

threshold question that must be determined before the Court reviews

whether the ALJ's final decision is supported by substantial

evidence.” Miranda v. Comm'r of Soc. Sec., No. 22-cv-4226 (PKC),

2023 WL 6385727, at *6 (E.D.N.Y. Sept. 29, 2023) (internal

quotation marks and citation omitted). Even when not raised by

the claimant, the Court “must independently consider the question

of whether the ALJ failed to satisfy his duty to develop the

Record.” Sanchez v. Saul, No. 18-cv-12102 (PGG) (DF), 2020 WL

2951884, at *23 (S.D.N.Y. Jan. 13, 2020), report and recommendation

adopted sub nom. Sanchez v. Comm'r of Soc. Sec., 2020 WL 1330215

(S.D.N.Y. Mar. 23, 2020). “[B]ecause a hearing on disability

benefits is a nonadversarial proceeding, the ALJ generally has an

affirmative obligation to develop the administrative record.”

Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (citations

omitted). “Legal errors regarding the duty to develop the record

warrant remand.” Wilson v. Colvin, 107 F. Supp. 3d 387, 407

(S.D.N.Y. 2015) (collecting cases).

In the instant case, the weight the ALJ assigned to the

different medical opinions regarding Plaintiff’s mental

impairments indicates that the ALJ should have further developed

the record. Though the ALJ considered the opinions of Dr. Chen,

Plaintiff’s psychiatrist, and Dr. Kravitz, a non-examining expert,

the ALJ found that only Dr. Kravitz’s opinion was persuasive and

somewhat consistent with the RFC. The Commissioner contends that

although “[t]he ALJ referred by name only to Dr. Kravitz, who

affirmed Dr. Gagan’s findings, [the ALJ] discussed the findings of

Dr. Gagan as well.” (ECF No. 22, Defendant’s Memorandum of Law,

at 16.)

Dr. Chen, Plaintiff’s treating psychiatrist for approximately

five years, provided a medical opinion dated December 22, 2018,

concluding that Plaintiff’s mental impairments significantly

impacted her ability to work. (Tr. at 567.) Dr. Chen concluded

that Plaintiff had “marked” limitations in several areas,

including her abilities to (1) understand, remember and carry out

detailed instructions; (2) maintain attention and concentration

for extended periods; (3) perform activities within a schedule and

consistently be punctual; (4) work in coordination with or near

others without being distracted by them; (5) complete a workday

without interruptions from psychological symptoms; (6) perform at

a consistent pace without rest periods of unreasonable length or

frequency; and (7) interact appropriately with the public. (Id.

at 570.) The medical opinion also noted that Plaintiff had several

“moderate-to-marked” limitations, including with her abilities to

(1) remember locations and work-like procedures; (2) understand

and remember one-to-two step instructions; (3) sustain ordinary

routine without supervision; (4) accept instructions and respond

appropriately to criticism from supervisors; (5) get along with

coworkers or peers without distracting them; (6) maintain socially

appropriate behavior; and (7) make plans independently. (Id.)

Based on the treating relationship, Dr. Chen provided a list

of symptoms to support his assessment, including depressed mood,

persistent or generalized anxiety, constricted and/or labile

affect, feelings of guilt or worthlessness, difficulty thinking or

concentrating, easy distractibility, poor immediate and recent

memory, intrusive recollections of a traumatic experience,

recurrent panic attacks, anhedonia/pervasive loss of interests,

appetite disturbances/weight change, decreased energy, psychomotor

retardation, social withdrawal or isolation, and poor sleep even

with medication. (Id. at 568.) Finally, Dr. Chen noted that

Plaintiff was likely to miss work more than three times per month

due to her mental impairments and treatment. (Id. at 571.) The

ALJ determined, however, that Dr. Chen’s opinion was not persuasive

because “Dr. Chen's treatment notes directly contradict this

report as the claimant is regularly noted to have congruent or

normal affect, with normal memory/concentration, and no evidence

of constricted affect and no evidence of labile affect since 2014

. . . [a]dditionaly, there is no evidence of any posttraumatic

stress disorder diagnosis and very little mention of past trauma.”

(Id. at 19.) The ALJ also noted that Dr. Chen’s opinion statement

“was completed one year after the [Plaintiff’s] date last insured.”

(Id.)

After determining that Plaintiff’s treating physician’s

medical opinion was not persuasive due to inconsistencies and a

lack of support in the medical record, the ALJ determined that

non-examining expert Dr. Kravitz was the only persuasive opinion

regarding Plaintiff’s mental impairments. (Id.) As discussed

above, Dr. Kravitz did not personally evaluate Plaintiff, but

appears to have had access to at least some of her medical records

as well as Plaintiff’s daily activities report. (Id. at 102.)

Dr. Kravitz does not directly reference Dr. Gagan’s review of the

record, but generally concurred with Dr. Gagan’s findings. (Id.)

Dr. Kravitz opined that “[w]hile the file evidence does suggest a

reduction in functioning, claimant's report of functional

limitations appears more severe than would be supported based on

the mental status findings . . . [the state agency] finding that

claimant is capable of simple, routine work tasks mentally is

reasonable.” (Id.)

A review of the ALJ’s discussion of Dr. Kravitz’s opinion

makes it clear that the ALJ erroneously confused the opinions of

Dr. Kravitz and Dr. Gagan. While the ALJ states that “[Dr.]

Kravitz, Psy.D. reviewed the medical evidence of record and opined

the [Plaintiff] would have mild limitation in ability to

understand, remember, or apply information,” Dr. Kravitz in fact

made no such finding. (Id. at 19.) Instead, it was Dr. Gagan who

made the finding that the ALJ is referencing, as part of his

evaluation of the “Paragraph B” criteria for the listings that

might apply to Plaintiff, and not Dr. Gagan’s Mental Residual

Functional Capacity (“MRFC”) Assessment, which was more detailed.

(Id. at 104-07.) The ALJ continues by noting the moderate

limitations included in Dr. Gagan’s MRFC for Plaintiff, again

attributing them to Dr. Kravitz erroneously. (Id. at 19.)

The ALJ subsequently states that “State agency psychological

consultant concluded [Plaintiff] could understand, remember and

carry out simple instructions; maintain reasonable attention/

concentration/ pace; interact; and adapt to low stress work setting

requiring simple tasks.” (Id.) Again, the ALJ appears to be

confusing the medical opinion of Dr. Gagan (specifically the

“Additional Explanation” section of the MRFC), and that of Dr.

Kravitz, which included no such statement. (Id. at 102, 107.)

The ALJ concludes by stating that “Dr. Kravitz’[s] opinion

accurately reflects the objective medical evidence (particularly

the treatment evidence from the claimant psychiatrist, Dr. Chen),

and is therefore given significant weight.” (Id. at 19-20.)

The ALJ’s evaluation of the medical opinions that were before

him suggests a need to further develop the record in light of the

“inconsistency” and “lack of support” the ALJ found in the medical

opinion of the only examining expert. Because the ALJ deemed the

treating physicians’ opinion lacking in support, he should have

sought clarification regarding the perceived deficiencies,

including the fact that the opinion was rendered after the date

last insured. See Correale-Englehart v. Astrue, 687 F. Supp. 2d

396, 428 (S.D.N.Y. 2010) (“[I]f a physician's report is believed

to be insufficiently explained, lacking in support, or

inconsistent with the physician's other reports, the ALJ must seek

clarification and additional information from the physician, as

needed, to fill any clear gaps before rejecting the doctor's

opinion.”).

First, the ALJ cites the lack of evidence of certain symptoms

and diagnoses in the medical record, specifically post-traumatic

stress disorder, as support for giving little weight to Dr. Chen’s

opinion. (Tr. at 19.) However, the ALJ made no finding, and the

Commissioner has made no argument, regarding “why Dr. [Chen] could

not have resolved at least some of the inconsistencies at issue,

the only circumstance in which the [Social Security] regulations

explicitly provide that re-contacting the treating physician is

inappropriate.” Burke v. Comm'r of Soc. Sec., No. 16-cv-6520

(KMK), 2017 WL 6029166, at *3 (S.D.N.Y. Dec. 5, 2017). Here, the

ALJ should have sought additional evidence concerning Dr. Chen’s

opinion assessment that Plaintiff exhibits “recurrent panic

attacks with intrusive recollections of traumatic experience.”

(Tr. at 19.) Given the “heightened duty to develop the record in

cases of mental impairment,” the ALJ had an obligation to recontact

Dr. Chen to seek clarifying information. Burke, 2017 WL 6029166

at *4 (collecting cases). On remand, the ALJ is encouraged to

seek further documentation to reconcile the minimal mentions of

past trauma in Dr. Chen’s treatment notes with his opinion

assessment of Plaintiff’s trauma-related anxiety.

Second, the ALJ infers from Plaintiff’s treatment regimen

which “has required no inpatient hospitalization” that Plaintiff’s

condition is stable. (Tr. at 19.) However, Plaintiff testified

during the May 31, 2019, hearing that she had previously been

hospitalized due to her depression. (Id. at 81.) The ALJ does

not address Plaintiff’s alleged hospitalization in his opinion,

nor does the medical record include any documentation relating to

this hospitalization. (See generally id.) On remand, the ALJ

should also seek clarification on the discrepancy between

Plaintiff’s testimony on this matter and the rest of the record.

The importance of the need to develop the record is heightened

in light of the fact that the ALJ appears to have mixed up the

opinions of Dr. Kravitz and Dr. Gagan and may have excluded

otherwise relevant medical opinion evidence as a result. Given

the gap in the record that followed the lack of weight assigned by

the ALJ to Dr. Chen’s medical opinion evidence, the ALJ should

have further developed the record. See Lebby v. Comm'r of Soc.

Sec., No. 20-cv-4760 (PKC), 2022 WL 580983, at *4 (E.D.N.Y. Feb.

24, 2022) (“the fact that all examining experts were deemed

unpersuasive created an obvious gap in the record that required

further development”). Accordingly, the Court finds that the ALJ

failed to adequately develop the record, and Plaintiff’s claim

must be remanded for further proceedings.

II. The ALJ’s Mental RFC Finding was not Supported by

Substantial Evidence

Although a failure to develop the record alone would warrant

remand, the Court also finds that the ALJ’s mental RFC finding is

not supported by substantial evidence. “Medical records alone

cannot provide substantial evidence for an RFC determination;

rather, an ALJ's RFC determination must be supported by a medical

opinion and that opinion must have been in the record at that

time.” Lebby, 2022 WL 580983, at *7 (internal quotation marks and

citation omitted).

a. The ALJ’s Weighing of Medical Opinion Evidence

First, Plaintiff contends, and the Court agrees, that the

ALJ’s evaluation of the medical opinion evidence, including Dr.

Chen’s opinion, was not consistent with the Commissioner’s

regulations. (Pl. Mem. at 2.) Under the treating physician rule,

the opinion of a claimant’s treating physician as to “the nature

and severity of the [claimant’s] impairment is given ‘controlling

weight’ if the opinion is ‘well-supported by medically acceptable

clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in [the] case

record.’” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015)

(citing Burgess, 537 F.3d at 128; 20 C.F.R. § 404.1527(c)(2)).1 An

ALJ who does not accord controlling weight to a treating

physician’s medical opinion must explicitly consider the following

non-exclusive Burgess factors in determining how much weight to

give to the opinion: (1) the frequency, length, nature, and extent

of treatment; (2) the amount of medical evidence supporting the

opinion; (3) the consistency of the opinion with the remaining

medical evidence; and (4) whether the physician is a

1 In 2017, new regulations were issued that changed the standard for evaluating

medical opinion evidence for claims filed on or after March 27, 2017. See 20

C.F.R. § 404.1520c. However, because Plaintiff filed her claims on January 5,

2017, the old regulations, including the treating physician rule, still apply.

specialist. Estrella v. Berryhill, 925 F.3d 90, 95‒96 (2d Cir.

2019) (citation omitted); see also 20 C.F.R. § 404.1527(c)(2).

“The ALJ must then ‘comprehensively set forth his reasons for the

weight assigned to a treating physician’s opinion.’” Cichocki v.

Astrue, 534 F. App’x. 71, 75 (2d Cir. 2013) (citing Burgess, 537

F.3d at 129). Though the decision regarding a disability

determination is reserved to the Commissioner, “when an ALJ

discounts a treating physician’s opinion that a claimant is

disabled, the ALJ is obligated to give good reasons for doing so.”

Quiles v. Saul, 19-cv-11181 (KNF), 2021 WL 848197, at *9 (S.D.N.Y.

Mar. 5, 2021) (citing Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.

1999)). Further, “[t]he failure to provide ‘good reasons for not

crediting the opinion of a claimant's treating physician is a

ground for remand.’” Greek, 802 F.3d at 375 (quoting Burgess, 537

F.3d at 129-30).

The ALJ gave “little weight” to Dr. Chen’s December 2018

opinion that Plaintiff “displays deficits in memory and

concentration, as well as psychomotor retardation, anhedonia,

appetite disturbance, and social isolation, along with labile and

constricted affect with depressed mood and recurrent panic attacks

with intrusive recollections of traumatic experience.” (Tr. at

19.) The ALJ recognized Dr. Chen as Plaintiff’s treating

psychiatrist and acknowledged the length of their treatment

relationship. (Id. at 17.) However, the ALJ primarily focused on

Burgess factors two and three, basing his assignment of weight for

Dr. Chen’s opinion on the lack of support in the medical evidence

of the record and internal inconsistencies in Dr. Chen’s own

treatment notes. (Id. at 19.)

After carefully examining the record, the Court determines

that the ALJ failed to properly apply the treating physician rule

in assigning “little weight” to Dr. Chen’s opinion. First, the

ALJ relied heavily on three periods of treatment in which Dr.

Chen’s (or a social worker’s) notes indicate Plaintiff was

“relatively stable” and “compliant with her medications.” (Id. at

17-18; see also id. at 353, 364, 370, 388, 390, 394, 404, 464.)

These isolated periods are not characteristic of the record

generally, which indicates Plaintiff remained anxious, depressed

and/or tense at nearly every other appointment with Dr. Chen. (Id.

at 322, 325, 329, 332, 334, 339, 345, 358, 366, 380, 390, 391,

395, 401, 417, 422, 428, 437, 438, 472, 476, 483, 491, 493, 496,

500, 502, 504, 505.) Here, the ALJ incorrectly “imposed his own

notion” and medical judgment over that of the treating

psychiatrist’s opinions by finding that the severity of

Plaintiff’s alleged mental impairments were contradicted by a few

treatment notes showing that Plaintiff was “relatively stable,”

improved, feeling better, and compliant with her medications. Shaw

v. Carter, 221 F.3d 126, 134-35 (2d Cir. 2000); see also Jacobs v.

Saul, 482 F. Supp. 3d 23, 27 (E.D.N.Y. 2020) (“The ALJ is not

permitted to cherry pick from the treatment record only evidence

that is inconsistent with the treating source's opinion in order

to conclude that the opinion should be accorded less weight.”).

The Second Circuit has previously indicated that it is especially

important to give weight to treating physicians regarding mental

health opinions because records of mental health diagnoses may be

less clear than actual consultations. Flynn v. Comm'r of Soc.

Sec. Admin., 729 F. App'x 119, 122 (2d Cir. 2018) (“The treatment

provider's perspective would seem all the more important in cases

involving mental health, which are not susceptible to clear records

such as x-rays or MRIs. Rather, they depend almost exclusively on

less discretely measurable factors, like what the patient says in

consultations.”).

The characterization of the incidences where Plaintiff was

found to be “relatively stable” as indicative of Plaintiff’s

improvement or recovery is further diminished by the frequency of

Plaintiff’s examinations with Dr. Chen, which occurred every other

month on average and sometimes multiple times per month. (Id. at

318-530.) The ALJ’s failure to explicitly consider the frequency

of these examinations is yet another procedural error and grounds

for remand in the absence of other “good reasons” for the weight

assigned to the opinion. See Estrella, 925 F.3d at 96 (“An ALJ's

failure to ‘explicitly’ apply the Burgess factors when assigning

weight [to a treating physician’s opinion] is a procedural error.”)

(citing Selian v. Astrue, 708 F.3d 409, 419-20 (2d Cir. 2013)).

Instead of assigning controlling weight to Plaintiff’s

treating physician’s medical opinion, the ALJ instead chose to

accord “significant weight” to the opinion of Dr. Kravitz, a non-

examining expert. (Tr. at 19-20.) As discussed further supra,

the ALJ appears to have mixed up the opinions of Dr. Kravitz and

Dr. Gagan, and instead refers to Dr. Gagan’s MRFC findings. Dr.

Gagan opined “the [Plaintiff] could understand, remember and carry

out simple instructions; maintain reasonable attention/

concentration/ pace; interact; and adapt to low stress work setting

requiring simple tasks,” an MRFC which the ALJ adopted in large

part. (Id. at 19, 107.) However, the ALJ also stated, without

explanation, that he was adding “moderate limitations in

information, adaptation, and social interaction” to give the

Plaintiff “the benefit of the doubt.” (Id. at 20.)

The Second Circuit has cautioned that “ALJs should not rely

heavily on the findings of consultative physicians after a single

examination,” let alone a simple review of the medical record.

Selian, 708 F.3d at 419. Where a plaintiff's medical sources have

differing RFC opinions, “an ALJ's failure to reconcile such

materially divergent RFC opinions of medical sources is a ground

for remand.” Diaz v. Comm'r of Soc. Sec., No. 21-cv-1609 (KAM),

2022 WL 16715920, at *9 (E.D.N.Y. Nov. 4, 2022) (citation omitted).

This is especially true where the ALJ discounts the opinion of the

treating physician. See Kennedy v. Astrue, 343 F. App'x 719, 721

(2d Cir. 2009) (summary order) (“Where an ALJ fails properly to

acknowledge [the treating physician rule] or to provide ‘good

reasons’ for the weight given to the treating physician's opinion,

we do not hesitate to remand.” (citation omitted)).

b. Failure to Evaluate all Medical Opinions

Second, the ALJ also appears to have neglected to evaluate

the medical opinion of Dr. Kravitz, and instead seems to have

conflated it with the opinion of Dr. Gagan, as discussed supra.

(Id. at 19.) SSA regulations require the ALJ to evaluate every

medical opinion he receives, and it is not clear that the ALJ did

so in this instance. See 20 C.F.R. §§ 404.1527(c), 416.927(c).

Though the ALJ mentions Dr. Kravitz’s opinion, he references only

the MRFC crafted by Dr. Gagan in his discussion of Dr. Kravitz’s

opinion. (Id. at 19, 105-107.) Because the ALJ does not properly

examine or evaluate the persuasiveness of the opinions of both

Drs. Gagan and Kravitz, this case must also be remanded. Laware

v. Colvin, 290 F. Supp. 3d 182, 186 (W.D.N.Y. 2017) (although an

ALJ “made brief reference” to a medical opinion, the ALJ “failed

to explain the weight (if any) afforded to the opinion . . . [and

therefore] the Court is unable to determine whether the ALJ duly

considered all of the medical opinions of record.”)

c. Impermissible Substitution

Third, the ALJ appears to have based his RFC determination on

what he viewed as Plaintiff’s “very minimal” psychiatric care that

shows “she is stable.” The ALJ’s determination that Plaintiff’s

treatment as “very minimal” was an impermissible substitution of

his opinion for that of medical experts. Shaw v. Chater, 221 F.3d

126, 134–35 (2d Cir. 2000) (“Neither the trial judge nor the ALJ

is permitted to substitute his own expertise or view of the medical

proof for the treating physician's opinion. Essentially, the ALJ

and trial court imposed their notion that the severity of a

physical impairment directly correlates with the intrusiveness of

the medical treatment ordered.” (citations omitted)). Even if the

ALJ were correct in his classification of Plaintiff’s treatment as

“very minimal,” which is not obviously correct, given the

Plaintiff’s history of psychotropic medication and psychiatric

care over more than four years, such treatment does not constitute

substantial evidence for the RFC. Kirby v. Saul, No. 20-cv-02270

(FB), 2021 WL 4197264, at *3 (E.D.N.Y. Sept. 15, 2021) (“[N]either

[the plaintiff’s] ability to perform personal tasks—like

showering, getting dressed, and going to doctor's appointments—

her ‘conservative’ treatment choices, nor her decision to return

to work after a period of disability amounts to substantial

evidence.”).

In conclusion, the Court finds that the ALJ’s RFC is not

supported by substantial evidence because (1) it is not supported

by the Plaintiff’s treating physician’s medical opinion; (2) the

ALJ failed to properly distinguish between or weigh the remaining

two state agency examiner opinions; and (3) Plaintiff’s “very

minimal” psychiatric treatment cannot constitute substantial

evidence. As a result, remand is necessary in the instant case.

III. The ALJ’s Evaluation of Plaintiff’s Subjective Statements

In addition to adequately developing the record in this case,

on remand, the ALJ should further explain his credibility

determinations regarding Plaintiff’s subjective complaints. In

the instant case, the ALJ found that Plaintiff’s:

medically determinable impairments could reasonably be

expected to cause the alleged symptoms; however, the

claimant’s statements concerning the intensity,

persistence and limiting effects of these symptoms are

not entirely consistent with the medical evidence and

other evidence in the record for the reasons explained

in this decision.

(Tr. at 17.) If a plaintiff's allegations are not supported by

“objective medical evidence, the ALJ must engage in a credibility

inquiry.” Gallagher v. Colvin, 243 F. Supp. 3d 299, 306 (E.D.N.Y.

2017) (citation and quotations omitted).

“In making a credibility determination, the ALJ must consider

seven factors: (1) the claimant's daily activities; (2) the

location, duration, frequency, and intensity of claimant's pain

and other symptoms; (3) precipitating and aggravating factors; (4)

the type, dosage, effectiveness, and side effects of any medication

the claimant takes or has taken to alleviate pain or other

symptoms; (5) any treatment, other than medication, the claimant

has received; (6) any other measures the claimant employs to

relieve pain or other symptoms; and (7) other factors concerning

the claimant's functional limitations and restrictions as a result

of pain or other symptoms.” Id. at 306–07. Courts in this circuit

have also noted that “the ALJ must consider all of the evidence in

the record and give specific reasons for the weight accorded to

the claimant’s testimony.” Alcantara v. Astrue, 667 F. Supp. 2d

262, 277 (S.D.N.Y. 2009) (citing Lugo v. Apfel, 20 F. Supp. 2d

662, 663 (S.D.N.Y. 1998)). “Where the ALJ fails sufficiently to

explain a finding that the claimant's testimony was not entirely

credible, remand is appropriate.” Garcia v. Kijakazi, No. 22-cv-

1620 (KAM), 2023 WL 6796394, at *6 (E.D.N.Y. Oct. 13, 2023).

The ALJ’s finding that Plaintiff’s allegations were not

credible was based on several observations he discussed in his

decision, including: (1) Plaintiff had alleged disabling

conditions since 2012 but did not seek treatment until 2014, (2)

Plaintiff’s psychiatric care was “very minimal,” (3) Plaintiff was

engaged in activities such as shopping, driving, traveling by

public transportation, and hobbies such as photography and

knitting; and (4) her testimony lacked support in her medical

records. (Tr. at 18-19.) In reaching his conclusion, the ALJ

considered some, but not all, of the factors set forth in the

Regulations. See 20 C.F.R. § 404.1529(c).

Looking at the second factor, the ALJ does not properly assess

the duration and frequency of Plaintiff’s pain. Specifically, the

ALJ questions Plaintiff’s claims as to the duration of her pain,

citing Plaintiff’s two-year delay from her alleged onset date in

seeking treatment. (Tr. at 17.) However, “it is well-established

in the Second Circuit that an ALJ may not discount a claimant’s

failure to seek treatment without first exploring the reasons why

the claimant did not seek treatment, especially where the lack of

treatment pertains to a plaintiff’s mental impairments.” Sappah

v. Colvin, No. 15-cv-1090, 2017 WL 1194235, at *8 (N.D.N.Y. Mar.

30, 2017) (citing Shaw v. Chater, 221 F.3d 126, 133 (2d Cir.

2000)); see also Hamilton v. Colvin, 8 F. Supp. 3d 232, 244

(N.D.N.Y. 2013) (“The ALJ appears to have discounted Plaintiff's

testimony regarding these limitations solely due to the lack of

treatment . . . it was error for the ALJ to follow that course

without considering and exploring Plaintiff's reason(s) for not

seeking treatment.”) Nowhere in the decision does the ALJ address

potential reasons for Plaintiff’s delay in seeking treatment, nor

did the ALJ attempt to resolve this issue with the Plaintiff

herself during the hearing. (See generally Tr. at 11-22, 71-88.)

The ALJ also neglected to consider the factors that

precipitate and aggravate Plaintiff’s symptoms, as well as

measures other than treatment that Plaintiff uses to relieve pain,

the third and sixth factors. On remand, the ALJ will have another

opportunity to thoroughly evaluate the credibility of Plaintiff’s

testimony with sufficient specificity.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for judgment on

the pleadings is GRANTED, Defendant’s cross-motion for judgment on

the pleadings is DENIED, and the case is REMANDED for further

proceedings consistent with this Memorandum and Order.

On remand, the ALJ shall:

(1) Further develop the record by seeking clarification from

Plaintiff’s treating physician regarding his medical opinion, and

from Plaintiff regarding her alleged hospitalization

(2) Re-examine the opinions of plaintiff's treating physician, Dr.

Jianping Chen, and the two state agency examiners, and provide

sufficient explanations for the weight afforded to each opinion.

(3) Consider the factors outlined in 20 C.F.R. $§ 404.1529 (3),

416.929(c) (3) in redetermining the credibility of plaintiff's

statements regarding her symptoms and the effects of her

impairments.

The Clerk of Court is respectfully directed to enter judgment

remanding this case, and to close the case.

SO ORDERED.

DATED: January 22, 2024 + “72 Vn —

Brooklyn, New York wt lw

HON. KIYO A. MATSUMOTO |

United States District Judge

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