Brown v. Saul

USDC SONY

DOCUMENT

ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT DOC #:

SOUTHERN DISTRICT OF NEW YORK DATE FILED: 09/28/2022

TITO BROWN,

Plaintiff, 21-CV-2641 (BCM)

-against- OPINION AND ORDER

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

BARBARA MOSES, United States Magistrate Judge.

Plaintiff Tito Brown filed this action pursuant to § 205(g) of the Social Security Act, 42

U.S.C. § 405(g) (the Act), seeking judicial review of a final determination of the Commissioner of

Social Security (Commissioner) denying his application for Supplemental Security Income (SSI).

Now before me are the parties’ cross-motions for judgment on the pleadings. For the reasons that

follow, plaintiffs motion (Dkt. 16) will be granted and the Commissioner’s motion (Dkt. 22) will

be denied.

Background

Plaintiff, now aged 46, has a ninth-grade education and a long history of serious mental

illness. He was variously diagnosed with schizophrenia and bipolar disorder, beginning at least as

early as 2008, see Certified Administrative Record (Dkts. 7-9) at 363, 366 (hereinafter "R. □□□□

was psychiatrically hospitalized at least three times from 2005 to 2011, due to paranoia and

auditory and visual hallucinations (R. 363, 366-446, 461, 502, 591); and lived for a period of time

in "mental health housing" with onsite psychiatric services. (R. 591.) He also has long-standing

diagnoses of hypertension, type II diabetes, and asthma, and an umbilical hernia resulting from a

gunshot wound. (R. 330-65, 366-446, 464-73, 532.)

From June 2014 through June 2019, plaintiff was incarcerated.1 During that period, he

participated in intensive mental health treatment through the prison's Community Orientation and

Re-entry Program (CORP), including 20 hours per week of group therapy and monthly individual

therapy and medication management. (R. 460-61, 501-05.) One of his treating providers at CORP,

Dora Gutierrez, Psy.D., assisted plaintiff in applying for SSI in anticipation of his release from

prison.2 In connection with those efforts, Dr. Gutierrez prepared a Comprehensive Mental Health

Report dated April 2, 2019 (R. 506-10), and wrote a letter, dated May 3, 2019, describing plaintiff's

mental health history, treatment, and prognosis. (R. 460-63.)

In her letter, Dr. Gutierrez explained that CORP was a "highly structured and supervised

milieu," within which plaintiff had been "medication and treatment compliant." (R. 462.) Although

he was committed to staying in therapy after his release to "manage his psychosis," Dr. Gutierrez

advised that once in the community, with less structure and support, "he may decompensate and

become psychiatrically unstable," which in the past had led to him becoming "self-destructive,

violent, impulsive and consequently substance abusing." (Id.) Should that occur, Dr. Gutierrez

1 The website maintained by the New York Department of Corrections and Community

Supervision reports that he was imprisoned from June 3, 2014 to June 20, 2019. See "Incarcerated

Lookup," N.Y. State Dep't of Corr. & Comm. Supervision, available at https://nysdoccslookup.do

ccs.ny.gov/ (last visited September 28, 2022.)

2 The record is somewhat confusing concerning the date of and the asserted bases for plaintiff's

SSI application. His handwritten application form is dated March 28, 2019, and states that he

became unable to work on April 1, 2008, due to schizophrenia. (R. 225-34.) However, the

"Application Summary for Supplemental Security Income" prepared by the Social Security

Administration (SSA) on July 22, 2019, states that plaintiff applied for SSI on May 23, 2019,

alleging disability since January 1, 2017. (R. 235.) Plaintiff's "Disability Report – Adult," which

appears to have been completed on plaintiff's behalf by Dr. Gutierrez, lists his disabling conditions

as paranoia, auditory hallucinations, visual hallucinations, anxiety, hypertension, asthma, and

diabetes. (R. 254.) The SSA's "Disability Determination Explanation" forms, dated September 23

and December 3, 2019, agree that plaintiff sought benefits due to paranoia, auditory hallucinations,

visual hallucinations, anxiety, hypertension, asthma, and diabetes, but state that the application

was filed on May 22, 2019. (R. 125-26, 141.)

opined, plaintiff "will most likely become a danger to himself and/or others and need further

intensive psychiatric care including hospitalization." (Id.) She concluded that given the amount of

support plaintiff would require to "maintain a functional level," including "case management

services, mental health housing, substance abuse treatment program, medication management, and

a day treatment [program]," his treatment team did not believe that plaintiff would be able to

"maintain steady gainful employment once released to the community." (R. 462-63.)

Post-Application Medical Evidence

Upon his release from prison, plaintiff was placed in a homeless shelter for individuals

with mental health problems (R. 591-92) and enrolled in the EAC ("Empower, Assist, Care")

forensic intensive case management program. (R. 500, 514-25.) He also participated in an intensive

mental health and substance abuse treatment program at RevCore, and took aripiprazole (Abilify)

to control his hallucinations and other psychotic symptoms. (R. 483-97, 526-27). Additionally, he

established medical care at Janian Medical Care (Janian), where he saw various nurse practitioners

and was prescribed insulin and Metformin for his diabetes and Lisinopril for his hypertension.

(R. 577-93, 620-56.)

In connection with his SSI application, plaintiff underwent consultative examinations by

internist Silvia Aguiar, M.D. (R. 529-32) and psychologist Joseph Coleman, Ph.D. (R. 535-40).

Dr. Aguiar's physical examination of plaintiff took place on August 28, 2019, and was

unremarkable, except for the umbilical hernia and a surgical scar. (R. 530-31.) Dr. Aguiar noted

that plaintiff's last asthma attack had been more than three years ago. (R. 529.) She opined that he

should avoid respiratory irritants and "any activities that increase intraabdominal pressure"

(R. 532), but assessed no other limitations.

Dr. Coleman examined plaintiff on September 17, 2019. He questioned plaintiff about his

mental health history and treatment, and performed a mental status examination, which revealed

that plaintiff's affect was flat, his attention and concentration were impaired "due to limited

intellectual functioning," his memory was similarly impaired, his cognitive functioning was below

average, and his insight and judgment were only fair. (R. 537-38.) The exam was otherwise

unremarkable. (Id.) Dr. Coleman wrote that plaintiff had no difficulties performing activities of

daily living (ADLs) such as dressing, bathing, cooking, and shopping, but had a "mild" limitation

in understanding, remembering, and applying simple directions and instructions and a "moderate"

limitation in understanding, remembering, and applying complex directions and instructions, using

reason and judgment to make work related decisions, interacting adequately with supervisors, co-

workers and the public, sustaining concentration and performing a task at pace, sustaining an

ordinary routine and regular attendance at work, regulating emotions, controlling behavior, and

maintaining well-being. (R. 538-39.)

On October 16, 2019, while at Janian for a medical appointment, plaintiff reported "burning

chest pain." (R. 620.) After an abnormal EKG, he was transported to Montefiore Hospital, where

an inferior wall STEMI (ST-elevation myocardial infarction) was diagnosed. (R. 561.)3 Plaintiff

underwent an emergency LHC (left heart catheterization), during which two stents were placed in

the compromised coronary arteries. (Id.) He was discharged from the hospital on October 21, 2019,

with prescriptions for Lipitor (a cholesterol-lowering medication), Toprol (a Beta-blocker), and

Brilinta (an anti-platelet medication). (R. 570-71.)

3 A STEMI is a type of heart attack that is more serious and has a greater risk of serious

complications and death." "STEMI Heart Attack," Cleveland Clinic,

https://my.clevelandclinic.org/health/diseases/22068-stemi-heart-attack (last visited Sept. 28,

2022).

Thereafter, plaintiff returned to Janian, where he was seen regularly through April 2020.

(R. 623-56.) At most of these visits plaintiff reported feeling well, with no chest pain, palpitations,

or shortness of breath. (R. 623, 626, 630, 642, 650.) He reported that he used his albuterol inhaler

"about once a week." (R. 642, 650.) During his December 20, 2019 visit with psychiatric nurse

practitioner Alexandra Back, plaintiff discussed "how to best support his SSI case." (R. 635.) His

Abilify dose was increased and NP Back added an antidepressant, escitalopram (Lexapro), an

anticholinergic, benztropine mesylate (Cogentin), and an antihistamine, diphenhydramine

hydrochloride (Benadryl). (R. 637.) On December 27, 2019, NP Beck performed a psychiatric

evaluation. Plaintiff's mental status exam was generally normal, though his mood was depressed

and his range was constricted. (R. 639-40.) NP Back assessed that he presented "no acute risk of

danger to self or others," but was "chronically" "at risk" due to "numerous medical, psychiatric,

substance-related comorbidities, & homelessness." (R. 640.) She noted that plaintiff was

"responding to pharmacotherapy and psychotherapy," and asserted that he would "greatly benefit

from placement into permanent supportive housing for individuals with mental illness who are

high functioning." (Id.) Notwithstanding plaintiff's high functioning, NP Back opined that he

would not be able to maintain gainful employment due to his "[f]requent deficiencies of

concentration persistence or pace," "[m]arked restrictions of activities of daily living" (specifically

listing "maintaining a residence, using transportation, day to day money management, accessing

community services"), and "[m]arked difficulties in maintaining social functioning." (Id.) She

added that since his alcohol use disorder had been in remission since 2015, "the difficulties in

functioning are due to the designated mental illness." (R. 640-41.)

On April 27, 2020, NP Beck filled out a Medical Source Statement about plaintiff, opining

that he had "mild" to "extreme" limitations in understanding, remembering, and carrying out

instructions and "moderate" to "marked" limitations in interacting appropriately with supervisors,

co-workers, and the public (R. 607-08), all due to his cognitive impairments, "poor stress

tolerance," and "low stress threshold," which caused "dysfunction in social, vocational,

educational, [and] occupational settings." (R. 608.)

Notwithstanding his October 2019 heart attack, plaintiff was not re-assessed physically in

connection with his SSI application.

Administrative Proceedings

Plaintiff's application was denied initially on September 23, 2019 (R. 140), and upon

reconsideration on December 3, 2019. (R. 162.) Plaintiff requested a hearing before an ALJ

(R. 180), which was held by telephone (due to the COVID-19 pandemic) before ALJ Mark

Solomon on May 27, 2020. (R. 90-124.) Vocational expert (VE) Francesca Fazzaroli also testified.

(R. 90).

At the hearing, plaintiff told the ALJ that since his heart attack he had "[c]hest pains and

shortness of breath so that I'll hyperventilate," particularly "when I walk a lot or when I'm climbing

stairs." (R. 98-99.) Additionally, he reported that his left hand was "really weak" and that he had

to walk with a cane since the heart attack. (R. 101-02.) Plaintiff is right-handed. (R. 111.) He

testified that he "can't really lift nothing heavy anymore," partly because of his heart and his weak

left hand, and partly "because that hernia might bust open." (R. 105.) Plaintiff testified that he was

taking Abilify and an antidepressant for his mental illness and that, because of these medications,

he sometimes "can't focus or I lose focus or get sidetracked." (R. 103.) He confirmed that he was

still able to do laundry and shopping, that he got along with the other residents at the shelter, and

that he regularly visited his adult children, using public transportation. (R.100, 102-03.) His hobby

was drawing. (R. 109.) Under questioning from his own lawyer, plaintiff added that his shortness

of breath was also due to his asthma, for which he took albuterol "at least twice or three times a

day" (R. 107), and that his difficulties with his left hand extended to the fingers, which would "get

locked around the cane," such that he would have to "bend them back open." (R. 112.)

The ALJ's Decision

In a written decision dated July 6, 2020 (Decision), ALJ Solomon concluded that plaintiff

was not disabled within the meaning of the Act. (R. 47-58.)

At step one of the five-step analysis mandated by 20 C.F.R. § 416.920, the ALJ found that

plaintiff had not engaged in substantial gainful activity since his application date. (R. 50.)

At step two, the ALJ found that plaintiff’s schizophrenia, asthma, diabetes mellitus,

recurrent hernia, and myocardial infraction were severe impairments. (R. 50.)

At step three, the ALJ found that none of plaintiff's impairments met or medically equaled

the severity of the impairments listed in 20 C.F.R. Part 404, Subpart P, App'x 1. (R. 50-53.) With

respect to plaintiff's mental impairments, the ALJ found that they did not satisfy the "paragraph

B" criteria of Listing 12.03 ("schizophrenia spectrum and other psychotic disorders") because they

did not cause at least two "marked" or one "extreme" limitation in the four broad areas of

functioning set forth therein. (R. 52.)4 The ALJ found that plaintiff had "mild" limitations in

understanding, remembering, or applying information and adapting or managing himself, and

"moderate" limitations in interacting with others and in concentrating, persisting or maintain pace.

(R. 51-52.) As for the "paragraph C" criteria," the ALJ found, with minimal discussion, that they

4 See 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.03(B). The four areas of mental functioning are:

(1) the ability to "[u]nderstand, remember, or apply information; (2) the ability to "[i]nteract with

others"; (3) the ability to "[c]oncentrate, persist, or maintain pace"; and (4) the ability to "[a]dapt

or manage oneself." Id. § 12.00(E). Each area is assessed "based on a five-point rating scale

consisting of none, mild, moderate, marked, and extreme limitation. To satisfy the paragraph B

criteria, [a claimant's] mental disorder must result in extreme limitation of one, or marked

limitation of two, paragraph B areas of mental functioning." Id. § 12.00(F)(2).

were not satisfied because "the record fails to document the existence of this criteria [sic] and the

claimant is able to function outside the area of his home." (R. 52.)5

The ALJ then found that plaintiff had the residual functional capacity (RFC) to perform

light work, as defined in 20 C.F.R. § 416.967(b),6 except that he can "sit up to six hours, and stand

and walk a total of six hours. He can occasionally climb, balance, stoop, kneel, crouch, and crawl,"

and must "avoid working at unprotected heights or with hazardous machinery" and "concentrated

exposure to respiratory irritants." He can "remember, understand, and carry out simple instructions,

and make simple work-related decisions," and can "interact appropriately with supervisors and

coworkers" and have "occasional interpersonal contact with the public." However, he must "not

perform a job requiring high volume or fast paced assembly line production quotas." (R. 53.)

In formulating plaintiff's RFC, the ALJ found that his statements about the intensity,

persistence, and limiting effects of his symptoms were "not entirely consistent" with other evidence

in the record (R. 54), pointing out, for example, that at recent treatment appointments plaintiff

5 To satisfy the "paragraph C" criteria, the claimant must show that his mental disorder "is 'serious

and persistent;' that is, [that he has] a medically documented history of the existence of the disorder

over a period of at least 2 years, and there is evidence of both: (1) Medical treatment, mental health

therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that

diminishes the symptoms and signs of [his] mental disorder; and (2) [m]arginal adjustment, that

is, [he has] minimal capacity to adapt to changes in [his] environment or to demands that are not

already part of [his] daily life." 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.03(c) (internal cross-

references omitted).

6 "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying

of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in

this category when it requires a good deal of walking or standing, or when it involves sitting most

of the time with some pushing and pulling of arm or leg controls. To be considered capable of

performing a full or wide range of light work, you must have the ability to do substantially all of

these activities. If someone can do light work, we determine that he or she can also do sedentary

work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for

long periods of time." 20 C.F.R. § 416.967(b). "Sedentary work involves lifting no more than 10

pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small

tools. Although a sedentary job is defined as one which involves sitting, a certain amount of

walking and standing is often necessary in carrying out job duties." 20 C.F.R. § 416.967(a).

"advised that his chest pain and other complications from his heart attack had improved," and was

still able to do his ADLs "independently." (Id.) The ALJ added that to the extent the heart attack

affected plaintiff's functionality, "the residual functional capacity identified above has taken those

residual [e]ffects into consideration." (Id.) Similarly, the ALJ reasoned that plaintiff's treatment

notes undercut his claims of functional limitations due to his hernia (which had never required any

treatment), his asthma (for which he was never hospitalized), or his diabetes (frequently described

by his physicians as "without complication" and "well controlled" with medication). (R. 54-55.)

As for plaintiff's mental impairments, the ALJ noted that he got along well with other shelter

residents and at recent appointments had denied any current hallucinations or disorientation.

(R. 55.) Thus, the ALJ wrote, although his mental impairments affected his "interpersonal skills

and his concentration," they "do not entirely prevent him from being able to function." (Id.)

Turning to the opinion evidence, the ALJ found Dr. Coleman's psychiatric consultative

opinion "only partially persuasive," because plaintiff could perform his ADLs independently and

"treatment records do not document severe cognitive or concentration limits due to any intellectual

functioning difficulties." (R. 56.)7

The ALJ found NP Back's opinion "wholly unpersuasive" because plaintiff could perform

his ADLs independently and his treatment records "consistently show him with minimal

limitations." (R. 56.) Further, the ALJ wrote, NP Back's opinion that plaintiff had poor stress

tolerance was "speculative and unpersuasive as he adjusted well both to incarceration and being in

a shelter, both situations which are inherently stressful." (Id.)

7 It is not entirely clear from the Decision what portion of Dr. Coleman's decision the ALJ found

unpersuasive. Both Dr. Coleman and ALJ Solomon found that plaintiff had a "mild" limitation in

understanding, remembering, or applying information. (R. 51, 538.)

The ALJ found Dr. Aguiar's physical assessment "only partially persuasive" because

Dr. Aguiar "did not provide a work functioning analysis related to any of [plaintiff’s] impairments"

and "her findings were overbroad, without any functional limits." (R. 56.)8

Two non-examining state agency consultants assessed plaintiffs physical RFC: B. Patel,

M.D. at the initial level, and S. Putcha, M.D. at the reconsideration level. (R. 131, 154-56.) The

ALJ found both of them "persuasive," even though they came to radically different conclusions –

both of which were inconsistent with the ALJ's ultimate RFC formulation. (R. 56-57.) Dr. Patel

opined on September 5, 2019 that plaintiff had no severe physical impairments at all, and

consequently no exertional limitations. (R. 131.) Dr. Putcha opined on December 3, 2019 that

because of plaintiff's severe heart disease he was limited to sedentary work with additional postural

limitations. (R. 154-56.) The ALJ explained that this was persuasive because, "at the time of the

assessment," plaintiff's "cardiac condition would have impacted his ability to perform certain

exertional and physical tasks." (R. 57) In the ALJ's view, however, by the time of the Decision

plaintiff had the "capacity to perform work duties at the light exertional level." (Id.)

As for the two non-examining state agency consultants who assessed plaintiff's mental RFC

(M. Juriga, Ph.D. at the initial level and E. Kamin, Ph.D. at the reconsideration level (R. 134-36,

156-59)): they largely agreed with one another, but the ALJ found them only "partially persuasive."

(R. 56-57.) Both Dr. Juriga and Dr. Kamin concluded that plaintiff had "moderate" difficulties in

all areas of mental functioning, although he retained the capacity "to meet the basic mental

demands of competitive, . . . unskilled work." (R. 134-36, 156-59.) In the ALJ's view, both

8 The ALJ appears to have been mistaken on this point. Dr. Aguiar opined that plaintiff should

avoid respiratory irritants and "activities that increase intraabdominal pressure." (R. 532.) The ALJ

did not discuss whether Dr. Aguiar's opinion had become less persuasive, or required updating,

after plaintiff's heart attack.

consultants overestimated plaintiff's functional mental limitations because "the evidence fails to

establish difficulties with his memory or ability to manage his personal affairs without heightened

stress." (R. 56.)

The ALJ did not mention the opinion of prison psychologist Dr. Gutierrez.

At step four, the ALJ determined that plaintiff had no past relevant work. (R. 57.)

Finally, at step five, ALJ Solomon found – based in part on the hearing testimony of VE

Fazzaroli – that jobs exist in significant numbers in the national economy that plaintiff could

perform, including assembler, sorter, and polisher. (R. 57-58). The ALJ concluded that plaintiff

had not been disabled "since September 22, 2019 [sic], the date the application was filed." (R. 58).9

Plaintiff’s request for review was denied by the Appeals Council on January 27, 2021 (R. 1-

7), rendering the ALJ's determination final.10 This action followed.

The Parties' Positions

Insofar as the Court can follow plaintiff's unfocused and disorganized brief, he argues, in

substance, that the ALJ erred by fashioning an RFC that did not fully credit plaintiff's testimony

or the medical opinions most favorable to plaintiff's claim of disability, by failing to consider his

9 This date is clearly incorrect. See n.2, supra. Nonetheless, both parties repeat it in their briefs,

reciting that plaintiff filed his SSI application on September 22, 2019. See Pl. Mem. (Dkt. 17) at

ECF page 5; Def. Mem. (Dkt. 23) at 1.

10 Plaintiff submitted additional medical evidence to the Appeals Council, including Montefiore

Hospital records from November 15, 2019 through June 10, 2020. (R. 67-89.) At a cardiac follow-

up visit with Robert Forman, M.D., on January 30, 2020, plaintiff reported that he felt "good,"

with no chest pain, and could walk 10-20 blocks and up the subway stairs, but was "[s]hort of

breath at time[s]." (R. 72.) Dr. Forman prescribed "regular exercise," and told plaintiff "he must

be walking daily which he . . . agreed to do." (R. 75.) The Appeals Council did not exhibit these

records because, in its view, the new evidence did not "show a reasonable probability that it would

change the outcome of the decision." (R. 2.) Plaintiff also submitted Janian treating notes reflecting

an October 8, 2020 visit with psychiatrist Katherine Jenkins, M.D. (R. 12-15), and Montefiore

Hospital records from August 13 to December 16, 2020 (R. 16-40). The Appeals Council did not

exhibit these records because they post-dated the ALJ's Decision. (R. 2.)

"persistent efforts to obtain relief from pain and other symptoms," and by failing to discuss the

"possible side effects" of his medications. Pl. Mem. at ECF pages 13-23. The Commissioner argues

that the ALJ's decision is supported by substantial evidence and free of legal error. Def. Mem. at

17-25.

After a careful review of the record, the Court has determined that this case must be

remanded for three reasons – none of them briefed by plaintiff. First, the ALJ erred in failing even

to consider the opinions of Dr. Gutierrez, who treated plaintiff in prison. Second, the ALJ failed to

consider whether plaintiff's reliance on time-intensive mental health programming to maintain his

psychiatric stability would interfere with his ability to perform full-time employment. Third, after

accepting the finding of Dr. Putcha, in December 2019, that plaintiff was limited to sedentary

work because of his heart attack, the ALJ erred when he concluded – without support from any

new or updated medical opinion – that by July 2020, plaintiff could perform light work.

Standards

In considering the parties' motions, I have reviewed the administrative record and applied

the familiar standards used by federal district courts to review decisions of the Commissioner.

Generally speaking, a court may "set aside the ALJ’s decision only where it is based upon legal

error or is not supported by substantial evidence." Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.

1998). "The Court first reviews the Commissioner's decision for compliance with the correct legal

standards; only then does it determine whether the Commissioner's conclusions were supported by

substantial evidence." Ulloa v. Colvin, 2015 WL 110079, at *6 (S.D.N.Y. Jan. 7, 2015) (citing

Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)). This is so because "[e]ven if the

Commissioner's decision is supported by substantial evidence, legal error alone can be enough to

overturn the ALJ's decision[.]" Id.; accord Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).

A court must set aside legally erroneous agency action unless "application of the correct legal

principles to the record could lead only to the same conclusion," rendering the error harmless.

Garcia v. Berryhill, 2018 WL 5961423, at *11 (S.D.N.Y. Nov. 14, 2018) (quoting Zabala v.

Astrue, 595 F. 3d 402, 409 (2d Cir. 2010)).

"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.'" Halloran v. Barnhart, 362

F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). However,

the reviewing court’s task is limited to determining whether substantial evidence exists to support

the ALJ’s fact-finding; it may not reweigh that evidence or substitute its judgment for that of the

ALJ where the evidence is susceptible of more than interpretation. Dubois v. Comm'r of Soc. Sec.,

2022 WL 845751, at *4 (S.D.N.Y. Mar. 21, 2022). Thus, if the ALJ’s determinations are supported

by substantial evidence, "the Court must affirm the decision of the [Commissioner] even if there

is also substantial evidence for plaintiff's position." Gernavage v. Shalala, 882 F. Supp. 1413, 1417

n.2 (S.D.N.Y. 1995) (citing Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)).

Where, as here, the claim for benefits was initiated after March 27, 2017, the ALJ need not

defer or "give any specific evidentiary weight, including controlling weight," to any medical

opinion or prior administrative medical finding. 20 C.F.R. § 416.920c(a). Rather, the ALJ must

evaluate the "persuasiveness" of each opinion or finding in light of: (i) its "[s]upportability"; (ii) its

"[c]onsistency"; (iii) the "[r]elationship" between the medical source and the claimant; (iv) the

source's "[s]pecialization" in a relevant medical field; and (v) "other factors that tend to support or

contradict" the opinion or finding. 20 C.F.R. § 416.920c(c)(1)-(5). Of these, the most important

factors are "supportability" and "consistency." Id. § 416.920c(b)(2); Rivera v. Comm'r of the Soc.

Sec. Admin., 2020 WL 8167136, at *11 (S.D.N.Y. Dec. 30, 2020), report and recommendation

adopted, 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021). An ALJ commits procedural error if he fails

to evaluate a medical source's opinions for persuasiveness, see Lisa B. v. Comm'r of Soc. Sec.,

2022 WL 1473277, at *7 (N.D.N.Y. May 10, 2022), or if, when performing that evaluation, he

fails to discuss the supportability and consistency factors. See Loucks v. Kijakazi, 2022 WL

2189293, at *2 (2d Cir. June 17, 2022) (summary order) (ALJ "committed procedural error" by

failing to explain how the supportability and consistency factors were considered).

The ALJ Failed to Consider Dr. Gutierrez's Opinions

Here, the ALJ erred by failing to consider – or even mention – the medical opinions of

Dr. Gutierrez, who was one of plaintiff's treating providers in prison and provided a detailed report,

as well as a separate letter, setting out his mental health history, his response to incarceration, his

course of treatment while in prison, and his prognosis. (R. 460-63, 506-10.) Dr. Gutierrez wrote

that plaintiff did well in CORP because it was a "highly structured and supervised milieu," but that

once he was in the community, with less structure and support, "he may decompensate and become

psychiatrically unstable," which in the past had led to him becoming "self-destructive, violent,

impulsive and consequently substance abusing." (R. 462.) Dr. Gutierrez based her opinion on

plaintiff's "history of these symptoms," which "tend to become exacerbated under stressful

conditions." (Id.) In Dr. Gutierrez's view, plaintiff would need "a lot of support to ensure stability

in the community" and "maintain a functional level," including case management services, a

substance abuse program, medication management, and "a day treatment [program]." (R. 462-63.)

The ALJ was not, of course, required to accept Dr. Gutierrez's conclusion that, because of

these factors, plaintiff would be unable to "maintain steady gainful employment once released to

the community." (R. 463.) See 20 C.F.R. § 416.920b(c) (opinions on "issues reserved to the

Commissioner," such as whether a claimant is "able to work," are "inherently neither valuable nor

persuasive"); Schillo v. Kijakazi, 31 F.4th 64, 70 (2d Cir. 2022) ("The ultimate finding of whether

the claimant is disabled is reserved to the agency[.]"). But he was required to consider the

remainder of Dr. Gutierrez's report and letter, including her insights concerning plaintiff's past

episodes of decompensation, and evaluate her views in accordance with 20 C.F.R. § 416.920c(b),

which requires the ALJ to consider and evaluate "all of the medical opinions" in the record. His

failure to do so was legal error. See Rua-Campusano v. Kijakazi, 2022 WL 493390, at *2 (S.D.N.Y.

Feb. 17, 2022) ("Pursuant to federal regulations, ALJs are required to consider all medical opinions

in the record and evaluate their persuasiveness based on supportability and consistency."); Lisa B.,

2022 WL 1473277, at *7 (ALJ's failure to "reference, cite, or discuss Dr. Iosilevich's 2018 opinion"

constituted "legal error").11

Moreover, the error was not harmless, because ALJ Solomon wholly ignored both the

April 2, 2019 Comprehensive Mental Health Report and the April 3, 2019 letter, and because

Dr. Gutierrez's opinions concern plaintiff's "ability to handle stress," which is the same topic as to

which the ALJ rejected NP Back's opinion as "speculative and unpersuasive." (R. 56.) See

generally Matos v. Berryhill, 2017 WL 2371395, at *18-19 (S.D.N.Y. May 5, 2017) (remand was

required where ALJ failed to seek opinion evidence from prison psychiatrists who treated plaintiff

during her recent incarceration), report and recommendation adopted sub nom. Matos v. Comm'r

of Soc. Sec., 2017 WL 2364368 (S.D.N.Y. May 30, 2017). In this case, the ALJ had the necessary

opinions before him but failed to mention them, much less evaluate them as required by

§ 416.920c.

11 In Lisa B, the ALJ considered one of the two medical opinions submitted by Dr. Iosilevich, but

failed to separately consider the second one. 2022 WL 1473277, at *7. The court ultimately held

that the error was harmless, because "the opinions are similar enough that even if the ALJ explicitly

discussed the 2018 opinion, his decision would likely not have changed." Id.

Where, as here, the medical opinion evidence in the record was not properly analyzed, and

the error was not harmless, the court cannot conclude that the ALJ's RFC formulation was

supported by substantial evidence. See, e.g., Danielle B. v. Comm'r of Soc. Sec., 2020 WL

1933603, at *8 (N.D.N.Y. Apr. 22, 2020) (because "the Court is not convinced the ALJ properly

considered the opinion evidence," "the Court finds the ALJ's analysis of Plaintiff's RFC and the

medical opinions is [sic] not supported by substantial evidence and thus remand is required");

Marrero Santana v. Comm'r of Soc. Sec., 2019 WL 2330265, at *13 (S.D.N.Y. Jan. 17, 2019)

("Because the ALJ violated the treating physician rule," which at that time governed the evaluation

of expert medical opinions, "his RFC determination – that plaintiff is capable of the full range of

sedentary work – was not supported by substantial evidence."), report and recommendation

adopted sub nom. Santana v. Comm'r of Soc. Sec., 2019 WL 2326214 (S.D.N.Y. May 30, 2019).

Remand is therefore required so that the ALJ can consider Dr. Gutierrez's report and letter.

The ALJ Failed to Consider Plaintiff's Treatment Needs

When plaintiff was in prison he was enrolled in an intensive program that included 20 hours

of therapy per week. (R. 461, 503.) According to Dr. Gutierrez, he would also require significant

ongoing treatment to "maintain a functional level" in the community. (R. 462-63.) After his release,

plaintiff did in fact receive a high level of support and treatment, including a forensic intensive

case management program (R. 500, 516-25) and a mental health and substance abuse treatment

program at RevCore. The Revcore program required plaintiff to attend group counseling five days

per week and individual counseling once per week. (R. 523, 542, 552.) Dr. Coleman, the

consultative psychiatric examiner, recommended that plaintiff continue with his treatment, "as

currently provided," for another two years. (R. 539.) Dr. Coleman also found that plaintiff's

"compliance" with his treatment program was key to his "fair" prognosis. (Id.)

However, there is no indication in the Decision that ALJ Solomon considered the "effects

of treatment" on plaintiff's ability to maintain full-time employment, as required by SSR 96-8p,

1996 WL 374184, at *5 (S.S.A. July 2, 1996) (ALJ must take into account any "limitations or

restrictions imposed by the mechanics of treatment," including "frequency of treatment, duration,

[and] disruption to routine"). To the contrary: the ALJ relied in part on what he characterized

(inaccurately) as the plaintiff's "rudimentary treatment" to find that he was not disabled. (R. 55.)

This too was error. "Where an ALJ fails to make findings concerning the limitations caused

by the claimant's need for treatment, remand may be required." Renee S. v. Comm'r of Soc. Sec.,

2022 WL 2841916, at *5 (W.D.N.Y. July 21, 2022) (remanding because "the ALJ's written

decision does not include any discussion or findings concerning what limitations, if any, Plaintiff's

rigorous treatment regimen poses to her ability to meet the time-off-task and attendance

requirements of the unskilled work the ALJ found she could perform consistent with her RFC");

see also Scott G. v. Comm'r of Soc. Sec., 2021 WL 958452, at *4 (W.D.N.Y. Mar. 15, 2021)

(remanding where "it appears likely that Plaintiff's treatment schedule could interfere with the

ability to work, which needed to be considered in the ALJ's analysis"); Searles v. Comm'r of Soc.

Sec., 2019 WL 6337890, at *6-7 (D.N.J. Nov. 27, 2019) (remanding where the ALJ failed to

discuss "Plaintiff's continuous treatment at Crossroads," which was relevant to his RFC because

he was "in therapy at least three days a week for at least sixteen hours every week"); Bellinger v.

Comm'r of Soc. Sec., 2018 WL 6716092, at *2-3 (D. Conn. Dec. 21, 2018) (remanding because in

formulating plaintiff's RFC the ALJ "focused only on her symptoms" and did not discuss whether

her treatment, which included "weekly intravenous infusions lasting 2-3 hours," would render her

unemployable); Quinto v. Berryhill, 2017 WL 6017931, at *9 (D. Conn. Dec. 1, 2017) (remanding

where "the ALJ erred by failing to consider the evidence in the record that Quinto needed to use a

nebulizer every four to five hours," which according to the VE would be incompatible with

competitive employment).

In this case, as in Renee S., there was evidence before the ALJ that plaintiff's treatment

regimen would be incompatible with full-time work. At the hearing, VE Fazzaroli testified that

absenteeism of "even one or two days per month on a consecutive monthly basis will not be

tolerated by employers." (R. 119.) However, the ALJ failed to consider that evidence when

formulating plaintiff's RFC. Consequently, "remand is required for proper evaluation of the record

evidence," Renee S., 2022 WL 2841916, at *5, including the evidence concerning the limitations

caused by plaintiff's need for intensive treatment. Id.

The ALJ Improperly Relied on His Own Lay Opinion

in Determining Plaintiff's Exertional Capacity

On December 3, 2019, approximately six weeks after plaintiff's STEMI heart attack and

emergency LHC, Dr. Putcha reassessed his physical functioning and opined that as a result of

"[c]ardiac ischemia and stenting," plaintiff was limited to sedentary work with additional postural

limitations. (R. 154-56.) Dr. Putcha specifically found that plaintiff could stand and/or walk for a

total of only 2 hours out of an 8-hour work day and could lift and/or carry no more than 10 pounds.

(R. 154.) He did not characterize these limitations as temporary or otherwise indicate that plaintiff's

exertional capacity would rebound in the near future. The ALJ found Dr. Putcha's opinion

"persuasive," without qualification. Nonetheless, the ALJ determined that plaintiff had the

physical RFC to stand and/or walk up to 6 hours in an 8-hour day and could perform light work,

meaning that he could lift and/or carry up to 20 pounds. (R. 53.) The ALJ did not point to any

updated medical opinion for this conclusion – there is none. Nor did he point to any specific

medical evidence showing improvements in plaintiff's exertional capacity after Dr. Putcha's

assessment. Rather, he reasoned that although plaintiff's "cardiac condition would have impacted

his ability to perform certain exertional and physical tasks" at the time of Dr. Putcha's review,

plaintiff's ability to "engage in activities of daily living" by the time of the hearing supported an

RFC for light work. (R. 57.)

This was error. "[I]t is well-settled that the ALJ cannot arbitrarily substitute his own

judgment for competent medical opinion." Balsamo, 142 F.3d at 81 (internal quotation marks

omitted); see also Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (an "ALJ is not permitted to

substitute his own expertise or view of the medical proof for the treating physician's opinion or for

any competent medical opinion"); Hilsdorf v. Comm'r of Soc. Sec., 724 F. Supp. 2d 330, 347

(E.D.N.Y. 2010) ("[A]n ALJ who makes an RFC determination in the absence of supporting expert

medical opinion has improperly substituted his own opinion for that of a physician, and has

committed legal error."). "Put another way, 'ALJs may not, of course "play doctor" by using their

own lay opinions to fill evidentiary gaps in the record.'" Russ v. Comm'r of Soc. Sec., 582 F. Supp.

3d 151, 164 (S.D.N.Y. Jan. 31, 2022) (quoting Manzella v. Comm'r of Soc. Sec., 2021 WL

5910648, at *14 (S.D.N.Y. Oct. 27, 2021), report and recommendation adopted, 2021 WL

5493186 (S.D.N.Y. Nov. 22, 2021)). Yet that is precisely what the ALJ did here, when he relied

on his own lay judgment – in the absence of any updated medical assessment – to conclude that a

post-STEMI cardiac patient who was limited to sedentary work in December could perform light

work by the following July. See also Rosario v. Kijakazi, 2022 WL 875925, at *15 (S.D.N.Y.

Mar. 15, 2022) (ALJ erred in using his lay judgment to characterize medical events post-dating

the last relevant opinion in the record as "an isolated acute exacerbation"), report and

recommendation adopted, 2022 WL 976879 (S.D.N.Y. Mar. 31, 2022).

If the ALJ believed that Dr. Putcha's December 3, 2019 opinion had become stale, or

wished to consider whether plaintiff regained exertional capacity as he continued to recover from

his heart attack, he could and should have obtained an updated medical opinion. But he was neither

equipped nor entitled to reject a "persuasive" administrative medical finding based on his own

judgment as to the course of plaintiff's cardiac recovery thereafter. See Jackson v. Comm'r of Soc.

Sec., 2020 WL 486379, at *3-5 (W.D.N.Y. Jan. 30, 2020) (remanding for calculation of benefits

where consultative examiner who saw claimant shortly after his heart attack opined that he should

avoid "any exertional activity," but ALJ determined that he could perform sedentary work).

Conclusion

For the foregoing reasons, plaintiffs motion (Dkt. No. 16) is GRANTED, the

Commissioner's cross-motion (Dkt. No. 22) is DENIED, and this matter is REMANDED to the

Commissioner for further proceedings consistent with this Opinion and Order.

The Clerk of Court is respectfully directed to close the case.

Dated: New York, New York SO ORDERED.

September 28, 2022

‘eect

BARBARA MOSES sis

United States Magistrate Judge

20