Furlow v. Saul

NORTHERN DISTRICT OF NEW YORK

______________________________________________________________________

DANA F.,

o/b/o O.E.H.,

Plaintiff,

v. 6:18-CV-1337

(ATB)

NANCY A. BERRYHILL,1

Defendant.

______________________________________________________________________

ELIZABETH V. KRUPAR, ESQ., for Plaintiff

LUCY WEILBRENNER, SPECIAL ASS’T. U.S. ATTORNEY, for Defendant

ANDREW T. BAXTER, U.S. Magistrate Judge

MEMORANDUM DECISION and ORDER

This matter was referred to me, for all proceedings and entry of a final

judgment, pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No.

18, in accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73,

N.D.N.Y. Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 5).

I. PROCEDURAL HISTORY

Plaintiff filed an application for Supplemental Security Income (“SSI”) benefits

on behalf of her son, O.E.H.,2 on August 3, 2015. (Administrative Transcript (“T.”) at

11, 96, 105). The application was initially denied on November 18, 2015, and plaintiff

made a timely request for a hearing before an Administrative Law Judge (“ALJ”). (T.

1Andrew M. Saul became the Commissioner of Social Security on June 17, 2019. The

Clerk of Court is respectfully directed to amend the caption to reflect the proper defendant.

2Throughout this decision, the child on whose behalf this action was brought will be

generally referred to as “the claimant” or by his initials, “O.E.H.” Dana F., who commenced this

representation, was conducted by ALJ John Ramos on July 13, 2017. (T. 11, 79-95).

On December 4, 2017, the ALJ issued a decision finding that O.E.H. was not

disabled from the date of the application through the date of his decision. (T. 8-30). The

ALJ’s decision became the Commissioner’s final decision when the Appeals Council

denied plaintiff’s request for review on September 28, 2018. (T. 1-7).

II. ISSUES IN CONTENTION

Plaintiff makes the following arguments:

(1) The ALJ failed to develop a full and fair record. (Plaintiff’s Brief (“Pl.’s

Br.”) at 10-15; Dkt. No. 9).

(2) The ALJ improperly weighed the medical evidence. (Pl.’s Br. at 15-20).

(3) The ALJ erred in finding that the plaintiff’s testimony was inconsistent

with the evidence of record. (Pl.’s Br. at 20-24).

Defendant argues that the ALJ’s failure to develop the record was harmless error,

and the ALJ otherwise properly evaluated the evidence. (Defendant’s Brief (“Def.’s

Br.”) at 5-16; Dkt. No. 11). For the reasons stated below, the court concludes that the

ALJ erred and that the case should be remanded for further administrative proceedings

in developing the record and evaluating the medical opinion evidence.

III. FACTUAL OVERVIEW

Plaintiff’s counsel has carefully and completely outlined the facts and medical

evidence in her brief. (Pl.’s Br. at 1-7). The ALJ has also included a detailed recitation

of facts in his discussion of claimant’s case. (T. 16-25). Rather than reciting this

and the ALJ, and will discuss the relevant details below, as necessary to address the

issues.

IV. APPLICABLE LAW

A. Disability Standard

An individual under the age of eighteen is disabled, and thus eligible for SSI

benefits, if he or she has a medically determinable physical or mental impairment, which

results in marked and severe functional limitations, and 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. § 1382c(a)(3)(C)(i). See Hudson v. Astrue,

1:06-CV-1342 (LEK/VEB), 2009 WL 1212114, at *3-4 (N.D.N.Y. Apr. 30, 2009)

(discussing the standard for children’s disability benefits). However, the definition

provision excludes from coverage any “individual under the age of [eighteen] who

engages in substantial gainful activity. . . .” 42 U.S.C. § 1382c(a)(3) (C)(ii).

The agency has developed a three-step process to be employed in determining

whether a child can meet the statutory definition of disability. 20 C.F.R. § 416.924;

Kittles v. Barnhart, 245 F. Supp. 2d 479, 487-88 (E.D.N.Y. 2003); Ramos v. Barnhart,

02 Civ. 3127, 2003 WL 21032012, at *7 (S.D.N.Y. May 6, 2003). The first step of the

test requires a determination of whether the child has engaged in substantial gainful

activity. 20 C.F.R. § 416.924(b); Kittles, 245 F. Supp. 2d at 488. If so, then by statute

and by regulation, the child is ineligible for SSI benefits. 42 U.S.C. § 1382c(a)(3)

(C)(ii); 20 C.F.R. § 416.924(b).

test requires examination of whether he or she suffers from one or more medically

determinable impairments that, either alone or in combination, are properly regarded as

“severe,” in that they cause more than a minimal functional limitation. 20 C.F.R. §

416.924(c); Kittles, 245 F. Supp. 2d at 488; Ramos, 2003 WL 21032012, at *7. If the

child is found to have a severe impairment, the Commissioner must then determine, at

the third step, whether the impairment meets or equals a presumptively disabling

condition identified in the listing of impairments set forth in 20 C.F.R. Pt. 404, Subpt.

P., App. 1. Id. Equivalence to a listing can be either medical or functional. 20 C.F.R. §

416.924(d); Kittles, 245 F. Supp. 2d at 488; Ramos, 2003 WL 21032012, at *7. If an

impairment is found to meet, or qualify as medically or functionally equivalent to, a

listed impairment, and the twelve-month durational requirement is satisfied, the

claimant will be found to be disabled. 20 C.F.R. § 416.924(d)(1); Ramos, 2003 WL

21032012, at *8.

“Functional” equivalence must be examined only if it is determined that the

claimant’s impairment does not meet or medically equal the criteria for a listed

impairment. Analysis of functionality involves considering how a claimant functions in

six main areas referred to as “domains.” 20 C.F.R. § 416.926a(b)(1); Ramos, 2003 WL

21032012, at *8. The domains are described as “broad areas of functioning intended to

capture all of what a child can or cannot do.” 20 C.F.R. § 416.926a(b)(1). Those

domains include: (1) acquiring and using information; (2) attending and completing

tasks; (3) interacting and relating with others; (4) moving about and manipulating

416.926a(b)(1).

Functional equivalence is established by finding an “extreme” limitation,

meaning “more than marked,” in a single domain. 20 C.F.R. § 416.926a(a); Ramos,

2003 WL 21032012, at *8. An “extreme limitation” is an impairment which “interferes

very seriously with [the claimant’s] ability to independently initiate, sustain, or

complete activities.” 20 C.F.R. § 416.926a(e)(3)(i) (emphasis added).

Alternatively, a finding of disability is warranted if a “marked” limitation is found

in any two of the listed domains. 20 C.F.R. § 416.926a(a); Ramos, 2003 WL 21032012,

at *8. A “marked limitation” exists when the impairment “interferes seriously with [the

claimant’s] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. §

416.926a(e)(2)(i). “A marked limitation may arise when several activities or functions

are impaired, or even when only one is impaired, as long as the degree of limitation is

such as to interfere seriously with the ability to function (based upon age-appropriate

expectations) independently, appropriately, effectively, and on a sustained basis.” 20

C.F.R. Pt. 404, Subpt. P, App. 1, § 112.00(C).

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine

whether the correct legal standards were applied and whether substantial evidence

supported the decision. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting

Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); Brault v. Soc. Sec. Admin,

Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). A reviewing court

standards were applied, even if the decision appears to be supported by substantial

evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).

Substantial evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Talavera, 697 F.3d at 151 (quoting

Richardson v. Perales, 402 U.S. 389, 401 (1971)). It must be “more than a scintilla” of

evidence scattered throughout the administrative record. Id. However, this standard is a

very deferential standard of review “ – even more so than the ‘clearly erroneous

standard.’” Brault, 683 F.3d at 448.

An ALJ must set forth the crucial factors justifying his findings with sufficient

specificity to allow a court to determine whether substantial evidence supports the

decision. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). “To determine on

appeal whether an ALJ’s findings are supported by substantial evidence, a reviewing

court considers the whole record, examining the evidence from both sides, because an

analysis of the substantiality of the evidence must also include that which detracts from

its weight.” Williams on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).

However, a reviewing court may not substitute its interpretation of the administrative

record for that of the Commissioner, if the record contains substantial support for the

ALJ’s decision. Id. See also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

An ALJ is not required to explicitly analyze every piece of conflicting evidence in

the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles v.

Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ explicitly

“‘pick and choose’ evidence in the record that supports his conclusions.” Cruz v.

Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No.

09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).

V. THE ALJ’S DECISION

As the first step in his analysis, the ALJ found that O.E.H. had not engaged in

substantial gainful activity since the application date. (T. 14). Next, the ALJ

determined that O.E.H. had the following severe impairments: attention deficit

hyperactivity disorder (“ADHD”) and oppositional defiant disorder (“ODD”). (Id.) At

the third step, the ALJ found that O.E.H. did not have an impairment or combination of

impairments that met or medically equaled an impairment listed in 20 C.F.R. Pt. 404,

Subpt. P, App. 1. (T. 15). The ALJ continued his analysis, and found that O.E.H. did

not have an impairment or combination of impairments that functionally equaled the

severity of a listed impairment under the regulations. (T. 15-16).

In making his functional equivalence determination, the ALJ considered “all of

the relevant evidence in the case record,” including objective medical evidence and

information from other sources such as school teachers and family members. (T. 15).

Based upon his review of the evidence, the ALJ found that O.E.H. had no limitation in

moving about and manipulating objects; less than marked limitation in acquiring and

using information, attending and completing tasks, caring for himself, and health and

physical well-being; and marked limitation in interacting and relating with others. (T.

17-25).

statements about the intensity, persistence and limiting effects of O.E.H.’s impairments

were not entirely consistent with the record evidence. (T. 16). Because O.E.H. did not

have a “marked” limitation in two or more of the functional domains, and did not have

an “extreme” limitation in any one domain, the ALJ concluded that O.E.H. was not

disabled from the date of the application for benefits. (T. 25).

DISCUSSION

VI. WEIGHT OF THE EVIDENCE/DUTY TO DEVELOP RECORD

A. Legal Standards

1. Weight of the Evidence

The ALJ must “evaluate every medical opinion [he] receives, regardless of its

source.” Bryant ex rel M.K. v. Comm’r of Soc. Sec., No. 17-CV-6662, 2019 WL

403398, at *2 (W.D.N.Y. Jan 31, 2019) (citing Pena v. Chater, 968 F. Supp. 930, 937

(S.D.N.Y. 1997), aff’d, 141 F.3d 1152 (2d Cir. 1998) (citation omitted)); see also 20

C.F.R. § 416.927(c). “Unless a treating source’s opinion is given controlling weight, the

ALJ considers several factors to decide how much weight to give to a medical opinion,”

including (1) whether the source examined the claimant; (2) the length, nature, and

extent of the treatment relationship; (3) whether the source presented relevant evidence

to support the opinion; (4) whether the opinion is consistent with the record as a whole;

(5) whether a specialist rendered the opinion in his or her area of expertise; and (6) other

factors that tend to support or contradict the opinion. Id. § 416.927(c)(1)-(6). The

ALJ does not have to apply every factor, but he must sufficiently explain his reasoning

The Commissioner will consider evidence from “other sources” to show the

“severity of [the claimant’s] impairment(s) and how it affects [the claimant’s] ability to

work.” Crouch ex rel. K.C. v. Astrue, No. 5:11-820 (LEK/ESH), 2012 WL 6948676, at

*3 (N.D.N.Y. Dec. 31, 2012) (citing 20 C.F.R. §§ 404.1513(e), 416.913(e)). Nurse

practitioners, teachers, and social workers are considered “other sources.” Opinions

from “other sources” can be “important and should be evaluated on key issues such as

impairment severity and functional effects.” SSR 06–03p, Titles II and XVI:

Considering Opinions and Other Evidence From Sources Who Are Not “Acceptable

Medical Sources” in Disability Claims, 2006 WL 2329939, at *3 (SSA Aug. 9, 2006).

While their opinions cannot “establish the existence of a medically determinable

impairment,” they may be used as a means of providing insight into a child’s degree of

impairment and functional ability. Id. at *2 (citing 20 C.F.R. § 416.913(d)).

2. Duty to Develop the Record

Given the remedial intent of the Social Security statute and the non-adversarial

nature of benefits proceedings, an ALJ has an affirmative duty, regardless of whether

the claimant is represented by counsel, to develop the medical record if it is incomplete.

Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999); 20 C.F.R. §§ 404.1512 (d),

416.912(d) (“We will make every reasonable effort to help you get medical reports from

your own medical sources when you give us permission to request the reports.”). When

a claimant is pro se, however, “the ALJ is under a heightened duty ‘to scrupulously and

conscientiously probe into, inquire of, and explore for all the relevant facts.’” Estrada v.

2014) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir.1990)); see also Vincent v.

Comm’r of Soc. Sec., 651 F.3d 299, 305 (2d Cir. 2011) (“The duty of the ALJ, unlike

that of a judge at trial, is to investigate and develop the facts and develop the arguments

both for and against the granting of benefits.”). “This entails a heightened obligation to

ensure both the completeness and the fairness of the administrative hearing.” Id. (citing

Cullinane v. Sec. of Dep’t of Health and Human Services of U.S., 728 F.2d 137, 137 (2d

Cir. 1984)(describing an ALJ’s “affirmative duty to ensure that pro se disability

insurance benefit claimants receive full and fair hearings”)). Moreover, “[t]he ALJ’s

duty to develop the record is enhanced when the disability in question is a psychiatric

impairment.” Tammy H. v. Comm’r of Soc. Sec., No. 5:18-CV-851(ATB), 2019 WL

4142639, at *10 (N.D.N.Y. Aug. 30, 2019) (quoting Champion v. Berryhill, No. 16-CV-

4723, 2017 WL 4404473, at *16 (S.D.N.Y. Sept. 14, 2017) (other citations omitted)).

In furtherance of the duty to develop the record, an ALJ may re-contact medical

sources if the evidence received from the treating physician or other medical sources is

inadequate to determine disability, and additional information is needed to reach a

determination. 20 C.F.R. §§ 404.1512(e), 416.912(e).3 Although the ALJ must attempt

3 Effective March 26, 2012, the Commissioner amended these regulations to remove

former paragraph (e) and the duty it imposed on ALJs to re-contact a disability claimant’s

treating physician under certain circumstances. The current regulations apply to plaintiff’s case.

See Jimenez v. Astrue, No. 12 Civ. 3477, 2013 WL 4400533, at *11 (S.D.N.Y. Aug. 14, 2013)

(noting that even though the regulations were amended to remove the provision requiring the

ALJ to recontact a treating physician to resolve an ambiguity in the record, the regulations still

“contemplate the ALJ recontacting the treating physicians when ‘the additional information

needed is directly related to that source’s medical opinion’”).

sufficient for the ALJ to make a disability determination, the ALJ is not obligated to

seek further medical records.” Jaeger-Feathers v. Berryhill, No. 1:17-CV-06350, 2019

WL 666949, at *3 (W.D.N.Y. Feb. 19, 2019) (quoting Johnson v. Comm’r of Soc. Sec.,

No. 1:17-CV-06350, 2018 WL 1428251, at *5 (W.D.N.Y. Mar. 22, 2018)).

B. Analysis

Plaintiff argues that the ALJ failed to fully develop the record with O.E.H.’s

relevant school and medical records, in contravention of his duty to explore all relevant

facts. Plaintiff further argues that the ALJ improperly weighed the medical evidence

that was before him, and erred in adopting the opinions of a non-examining state agency

psychologist and one-time consultative examiner over that of E.O.H.’s treatment

providers. The court agrees that remand is warranted, in light of both the ALJ’s failure

to sufficiently develop the record and his deficient evaluation of the opinion evidence

before him.

O.E.H. was examined by consultative psychologist Katherine Warden, Ph.D. on

October 29, 2015, at the request of the ALJ. (T. 289-93). Dr. Warden noted that O.E.H.

was in the sixth grade and receiving “85s to 100s” in his classes, however he was only

required to complete work at a third grade level. (T. 289). Dr. Warden further indicated

that O.E.H. was attending counseling once a week, and pursuing psychiatric treatment.

(Id.). O.E.H. reported general behavior symptoms including losing his temper easily,

arguing with adults, actively defying or refusing to comply with requests, aggression,

lying, deliberate destructiveness, stealing, temper tantrums, and self harming. (T. 289-

(T. 290). Upon examination, Dr. Warden noted that O.E.H. was cooperative, and his

“manner of relating, social skills, and overall presentation was age appropriate.” (Id.).

O.E.H. presented with appropriate eye contact and age appropriate language skills. (T.

291). His thought processes were coherent and goal directed, with restricted affect and

neutral mood. (Id.). Dr. Warden further noted that O.E.H.’s attention, concentration,

and memory skills were impaired due to possible cognitive deficits. (Id.). Claimant’s

cognitive functioning was estimated to be below average to borderline. (Id.).

Based on her examination, Dr. Warden opined that O.E.H. had no limitation to

“learn in accordance to cognitive functioning, ask questions and request assistance in an

age-appropriate manner, and be aware of danger and take needed precaution.” (T. 292).

She found O.E.H. to have a mild limitation in responding appropriately to changes in

the environment. (Id.). She further opined that O.E.H. was moderately limited in

attending to, following, and understanding age appropriate directions; completing age

appropriate tasks, and interacting adequately with adults. (Id.). Last, Dr. Warden found

O.E.H. to be markedly limited in adequately maintaining appropriate social behavior

and interacting adequately with peers. (Id.). Dr. Warden concluded that the results of

O.E.H.’s examination were consistent with psychiatric and cognitive problems, which

may significantly interfere with his ability to function on a daily basis. (Id.).

In November 2015, state agency physician4 Jennifer Meyer, M.D. opined that

O.E.H. had a “less than marked” limitation in all six functional domains. (T. 100-01).

4The record reflects that Dr. Meyer’s speciality is “pediatrics”; however it is unclear if

she maintained any specialty in the field of mental health. (T. 101).

developing her own conclusion that O.E.H. was not disabled, despite some clear

inconsistencies between the two opinions. (T. 101). Dr. Meyer’s opinion is furthermore

internally inconsistent, as the evidence which she cited and relied upon did not support

her less restrictive limitations.5

In October 2017, at the request of the ALJ, nurse practitioner (“NP”) Lee

Thompson and licensed clinical social worker Joshua Burgess prepared and co-signed a

Childhood Disability Evaluation Form on behalf of O.E.H. (T. 370-75). O.E.H.

received mental health treatment at Community Health & Behavior Services (“CHBS”)

from NP Thompson, who managed his psychiatric medication regimen, as well as from

Mr. Burgess. In the form, NP Thompson and Mr. Burgess concluded that O.E.H.

“functionally equals the listings,” determining that his impairments resulted in marked

limitations in at least two domains. (T. 370, 373). Specifically, they opined that O.E.H.

had a marked limitation in acquiring and using information, attending and completing

tasks, and interacting and relating with others. (T. 371). Both NP Thompson and Mr.

Burgess supported their findings with various narratives describing O.E.H.’s limitations.

(Id.).

The ALJ acknowledged each of the aforementioned opinions in his decision, and

identified the weight he afforded to each. Specifically, he afforded “limited weight” to

5For example, in support of her finding that O.E.H. had a “less than marked” limitation in

acquiring and using information, Dr. Meyer noted that he was a sixth grader operating at a

second and third grade academic level; had an obvious problem with understanding school

vocabulary, math comprehension, learning new material, and applying problem-solving skills;

and was helped daily to complete assignments. (T. 100).

by the objective evidence in record . . . including their own treatment notes indicating

that the claimant’s behavior had improved with treatment.” (T. 17). In an effort to

illustrate the alleged inconsistencies, the ALJ identified three treatment sessions wherein

NP Thompson indicated that O.E.H.’s symptoms were improving. (Id.). In the

alternative, the ALJ gave “significant weight” to the opinions of Dr. Meyer and Dr.

Warden, “because they are mental health specialists, and based on their programmatic

expertise.” (T. 16).

As a threshold matter, the ALJ erred in failing to develop the record with

O.E.H.’s complete mental health treatment history. As plaintiff points out, Mr.

Burgess’s therapy notes are absent from the record, but for a February 10, 2015

“Treatment Plan (Update).” (T. 261-63). Defendant argues that this record adequately

reflects the limited treatment relationship between O.E.H. and Mr. Burgess, however a

review of the administrative record in its entirety implies a greater history of treatment.

O.E.H.’s mother represented that O.E.H. had received counseling at CHBS from Mr.

Burgess, among others, since 2014. (T. 188). At the administrative hearing, O.E.H.’s

mother testified that plaintiff was in counseling, in addition to seeing NP Thompson for

his medical management. (T. 84). She noted that O.E.H. planned to attend a summer

camp with his counselor, Mr. Burgess. (T. 85).

Moreover, the February 2015 updated treatment plan implies previous treatment

by the nature of the document itself. The updated treatment plain indicates that

treatment objectives for O.E.H. were established in February 2013. (T. 262).

history of treatment,6 while also acknowledging that O.E.H. “has not attended any

appointments since his admission appointment. His family has made an appointment for

later this month to resume services.” (T. 263). Nevertheless, more than seven months

later, consultative psychologist Dr. Warden noted that O.E.H. was receiving counseling

once a week with Mr. Burgess. (T. 289). Based on the foregoing, the court cannot

accept defendant’s argument that the February 10, 2015 updated treatment plan

represents the entirety of O.E.H.’s treatment history with Mr. Burgess.7

The ALJ’s deficient development of the record extends beyond Mr. Burgess’s

records. According to NP Thompson, plaintiff received weekly counseling at school in

2014 and 2015. (T. 302). Despite their obvious relevance to the inquiry before the ALJ,

these records are notably absent from the record. Moreover, as plaintiff’s counsel points

out the ALJ failed to obtain a May 2017 psychological evaluation prepared by school

psychologist Barbara Krawiec-Schmalz, Ph.D., in which she analyzed a battery of

psychological test results as they related to O.E.H.’s limitations.8 (T. 35-44).

Because the ALJ failed to completely and fully develop the record as to O.E.H.’s

6“[O.E.H.] has been consistent with his attendance and participation. He has developed

good rapport with the writer and reports that he looks forward to meeting each week.” (T. 263).

7Defense counsel even admits that, at the very least, the admission record referred to by

Mr. Burgess is absent from the record. (Def.’s Br. at 8).

8Plaintiff submitted this psychological evaluation, along with various IEPs, report cards,

and disciplinary records from between 2014 and 2018 to the Appeals Council for review in

December 2017. (T. 35-73). Nevertheless, the Appeals Counsel denied plaintiff’s request for

review of the ALJ’s decision, noting that the new evidence did not show a reasonable probability

that it would change the outcome of the decision. (T. 2).

consequently flawed. The only support given by the ALJ for his attribution of “limited

weight” to the opinion of NP Thompson and Mr. Burgess was its inconsistency with the

objective evidence of record, including “their” own treatment notes. (T. 17). The ALJ,

however, erred by rejecting their opinion on such basis “without first attempting to fill

any clear gaps in the administrative record. Nuzzo v. Colvin, No. 12-CV-2373, 2013

WL 2626873, at *2 (E.D.N.Y. June 11, 2013) (quoting Rosa v. Callahan, 168 F. 3d 72,

79 (2d Cir. 1999)); see also Brown v. Comm’r of Soc. Sec., No. 13 Civ. 827, 2014 WL

783565, at *17 (S.D.N.Y. Feb. 28, 2014) (citing Calzada v. Astrue, 753 F. Supp. 2d 250,

278–79 (S.D.N.Y. Nov. 17, 2010) (pointing to “the record’s incompleteness” and

“potential omissions in the medical history before the ALJ,” and finding that the ALJ

had “fail[ed] to address . . . gaps in the record before concluding that the findings of

plaintiff’s treating physicians were unsupported by the record”). The ALJ should have

made reasonable efforts to collect the missing treatment records, and his failure to do so

precluded him from relying on any purported inconsistencies as a basis for affording NP

Thompson’s and Mr. Burgess’s opinions limited weight.

Even if this court were to assume that the ALJ’s failure to develop the record was

harmless error, remand is alternatively warranted due to the ALJ’s erroneous basis for

attributing limited weight to the opinion of O.E.H.’s treatment providers. As previously

discussed, the ALJ cited to inconsistencies between N.P. Thompson’s and Mr.

Burgess’s opinion and treatment records, noting three instances in which O.E.H. was

reported to be doing “better” or “improving.” (T. 17). The Second Circuit has

mental illness] are a common occurrence, and in such circumstances it is error for an

ALJ to pick out a few isolated instances of improvement over a period of months or

years and to treat them as a basis for concluding a claimant is [not disabled].” Estrella v.

Berryhill, 925 F. 3d 90, 97 (2d Cir. 2019) (citing Garrison v. Colvin, 759 F.3d 995,

1017 (9th Cir. 2014)). Here, O.E.H.’s treatment records do not reflect a trend of

improvement as the ALJ suggests, but instead illustrate the cyclical and inconsistent

nature of O.E.H.’s mental health symptoms.

Based on NP Thompson’s notes, O.E.H. initially responded well to his therapy

and medical regiment, reporting by late 2015 that he was doing better in school, had

improved focus, and experienced less impulsivity. (T. 309, 311, 314, 320, 323).

However, less than a year after initiating treatment O.E.H. was noted to have increased

aggression and impulsivity, having destroyed “several televisions and computers.” (T.

326). O.E.H.’s mother corroborated this behavior, testifying that O.E.H. tended to

become angry and violent toward others – so much so that his bedroom consisted of

only a bed and a night stand, because “he destroy’s everything.” (T. 84-85, 90). NP

Thompson noted that O.E.H. presented as less talkative, with a constricted affect and

blank stare. (T. 326). As a result of his regression, O.E.H.’s medications were

increased in dosage as well as in kind. (Id.). Over the next several months, O.E.H. was

noted to be less angry, impulsive and moody. (T. 329, 335). His medication was

altered to address reportedly excessive sleeping. (T. 329). Although he continued to

break objects when upset, it was noted to happen with less frequency. (T. 335).

impulsive behavior, and destroying property. (T. 341). O.E.H.’s mother noted that

other children were distancing themselves from O.E.H. in light of his behavior. (Id.).

NP Thompson again altered O.E.H.’s medication to address his symptoms. Despite the

same, O.E.H. returned in June 2017 reporting problems in school with managing his

anger and otherwise controlling his behavior. (T. 347). It was discussed that O.E.H.

may be taken out of his current school setting due to his frequent behavior problems.

(Id.). O.E.H.’s medications were increased at that time to address his ADHD symptoms

and mood stabilization. (Id.).

“When viewed alongside the evidence of the apparently cyclical nature of

[O.E.H.’s condition],” the ALJ’s three “cherry-picked treatment notes” do not provide a

sound basis for minimalizing NP Thompson’s and Mr. Burgess’s opinion. Estrella v.

Berryhill, 925 F.3d at 97; see also Tara S. v. Berryhill, No. 1:17-CV-1371 (DJS), 2019

WL 121243, at *6 (N.D.N.Y. Jan. 7, 2019) (“Cherry picking refers to improperly

crediting evidence that supports findings while ignoring conflicting evidence from the

same source . . . [and] ‘cherry picked’ decisions do not satisfy substantial evidence

standards because reviewing courts cannot conclude, under such circumstances, that

adverse findings were based on evidence reasonable minds might accept as adequate to

support a conclusion.”) (internal citations and quotations omitted); Younes v. Colvin,

No. 1:14-CV-170 (DNH/ESH), 2015 WL 1524417, at *8 (N.D.N.Y. Apr. 2, 2015)

(“‘Cherry picking’ can indicate a serious misreading of evidence, failure to comply with

the requirement that all evidence be taken into account, or both.”).

weight afforded to treating physician’s opinions, “the Second Circuit has long

recognized that the opinions of a nurse practitioner who regularly treats a claimant is

entitled to ‘some extra consideration,’” particularly when a claimant is only treated by a

nurse practitioner. (Duell v. Astrue, No. 8:08-CV-969 (DNH/VEB), 2010 WL 87298, at

*6 (N.D.N.Y. Jan. 5, 2010) (quoting Mongeur v. Heckler, 722 F.2d at 1039 n. 2).

“[T]he amount of weight to give [other source] opinions [such as nurse practitioners and

social workers] is based in part on the examining and treatment relationship, length and

frequency of the examinations, the extent of relevant evidence given to support the

opinion, and consistency with the record as a whole.” Thomas v. Berryhill, 337 F. Supp.

3d 235, 241 (W.D.N.Y. Oct. 2, 2018) (citing Fitzwater v. Berryhill, No. 1:16-CV-696,

2017 WL 4563899 at *5 (W.D.N.Y. Oct. 13, 2017)). The ALJ should “explain the

weight given to opinions from these ‘other sources,’ or otherwise ensure that the

discussion of the evidence in the determination or decision allows a claimant or

subsequent reviewer to follow the [ALJ]’s reasoning.” Id. (citing Sirris v. Colvin, No.

15-CV-1003, 2016 WL 6090585 at *3 (W.D.N.Y. Oct. 19, 2016)); see also SSR 06-03p,

2006 WL 2329939 at *6).

Alternatively, while the opinion of a non-examining consultant may constitute

substantial evidence where consistent with the record as a whole, “[t]he general rule is

that ‘the written reports of medical advisors who have not personally examined the

claimant deserve little weight in the overall evaluation of disability. The advisors’

assessment of what other doctors find is hardly a basis for competent evaluation without

17-CV-6675, 2019 WL 2718236, at *3 (W.D.N.Y. June 28, 2019) (quoting Vargas v.

Sullivan, 898 F.2d 293, 295–96 (2d Cir. 1990)); see also Filocomo v. Chater, 944 F.

Supp. 165, 169 (E.D.N.Y. 1996) (“The conclusions of a physician who merely reviews a

medical file and performs no examination are entitled to little if any weight.”). In the

same vein, the Second Circuit has reiterated that “ALJs should not rely heavily on the

findings of consultative physicians after a single examination.” Estrella v. Berryhill, 925

F.3d at 98 (citing Selian, 708 F.3d at 419). “This concern is even more pronounced in

the context of mental illness where . . . a one-time snapshot of a claimant’s status may

not be indicative of [his] longitudinal mental health.” Id.

Accordingly, the court remands this case to the ALJ with instructions to further

develop the record as previously set forth. Upon receipt of all the relevant records, the

ALJ must re-evaluate the record and, if appropriate, conduct a new hearing. The ALJ

should further re-evaluate plaintiff’s testimony, and should not reject it as lacking

credibility without explaining his reasons for doing so. Should the ALJ deny benefits

upon remand, he must support his findings with substantial evidence consistent with the

aforementioned law and administrative guidance.

WHEREFORE, based on the findings above, it is

ORDERED, that the decision of the Commissioner IS REVERSED and this case

REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings

consistent with this Memorandum-Decision and Order, and it is

ORDERED, that the Clerk enter judgment for PLAINTIFF.

Dated: December 23, 2019 fh ho be Baer

Andrew T. Baxter

U.S. Magistrate Judge

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