Grady v. Saul

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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STACIE ANN GRADY,

Plaintiff,

MEMORANDUM & ORDER

-against- 2:20-CV-03739 (JS)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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APPEARANCES

For Plaintiff: John W. DeHaan, Esq.

The DeHaan Law Firm P.C.

300 Rabro Drive East, Suite 101

Hauppauge, New York 11788

For Defendant: Jacquelyn M. Kasulis

United States Attorney’s Office

Eastern District of New York

271 Cadman Plaza East

Brooklyn, New York 11201

SEYBERT, District Judge:

Plaintiff Stacie Ann Grady (“Plaintiff”) brings this

action pursuant to Section 205(g) of the Social Security Act (the

“Act”), 42 U.S.C. § 405(g), challenging the denial of her

application for Social Security Disability Insurance Benefits by

the Commissioner of Social Security (the “Commissioner”). (See

Compl., ECF No. 1.) Pending before the Court are the parties’

cross-motions for judgment on the pleadings. (See Pl. Motion, ECF

No. 12; Pl. Support Memo, ECF No. 12-1; Comm’r Cross-Motion, ECF

No. 15; Comm’r Support Memo, ECF No. 15-1; Pl. Reply, ECF No. 16;

see also Admin. Tr., ECF No. 9.1) For the following reasons,

Plaintiff’s Motion (ECF No. 12) is GRANTED, and the Commissioner’s

Cross-Motion (ECF No. 15) is DENIED.

BACKGROUND2

I. Procedural History

On July 6, 2018, Plaintiff filed a claim alleging a

disability since April 9, 2018 (hereafter, the “Onset Date”)

(R. 274-75), composed of musculoskeletal pain, a torn left knee

meniscus, labral tear of the left hip, carpal-tunnel syndrome in

the right wrist, and anxiety or stress. (R. 121, 274-75, 313.)

Plaintiff’s claim was denied; thereafter, she requested a hearing

before an Administrative Law Judge (“ALJ”). (R. 151-58.)

Plaintiff’s claim was denied on or about September 26, 2019.

(R. 37-76.) Hence, Plaintiff requested Appeals Council (“AC”)

review, which was granted; the AC vacated the ALJ’s decision and

remanded Plaintiff’s case. (R. 144-46.) Upon remand, another

hearing was held before the ALJ (hereafter, the “2020 Hearing”);

after the 2020 Hearing, on April 27, 2020, Plaintiff’s claim was

once more denied. (R. 10-30, 77-102.) Again, Plaintiff requested

1 Hereafter, the Court shall cite to the Administrative Transcript

as “R” (for “Record”) and provide the relevant Bates Stamp

number(s).

2 The background is derived from the administrative record filed

by the Commissioner on February 9, 2018. (See ECF No. 9.) For

purposes of this Memorandum and Order, familiarity with the

administrative record is presumed.

AC review, which was denied on June 22, 2020. (R. 1-6, 270-73.)

Therefore, the ALJ decision was rendered the final decision of the

Commissioner, making it subject to judicial review under 42 U.S.C.

§ 405(g).

Plaintiff initiated this action on August 17, 2020 (see

Compl.) and moved for judgment on the pleadings on May 21, 2021

(see Motion). On July 20, 2021, the Commissioner cross-moved for

judgment on the pleadings. (See Cross-Motion.). Plaintiff filed

his Reply on September 2, 2021. (See Reply.) The Cross-Motions

are ripe for decision.

II. Evidence Presented to the ALJ

The Court first summarizes Plaintiff’s employment

history before turning to Plaintiff’s medical records and the

testimony of the vocational expert (“VE”).

A. Plaintiff’s Employment History and Testimony

On the Onset Date, Plaintiff was a 45-year-old woman

with a Bachelor of Business Administration degree, who had a major

in accounting. (R. 45-47, 121.) She had worked for more than 20

years as a controller for different companies. (R. 45-46.)

In August 2017, prior to the Onset Date, Plaintiff

injured her knee and began using a cane. (R. 46.) Plaintiff

testified she was “getting nosebleeds every day” and had “a lot of

anxiety and nervousness leaving the house” until she “had a nervous

breakdown” in December 2017, prompting her to leave work.

(R. 46-47.) Plaintiff testified she slept for almost two days and

then went to the doctor; at the doctor’s office, bloodwork was

performed and Plaintiff received an increased dosage in her Zoloft

prescription. (R. 47-48.) She returned to work in January 2018

at which time she requested a modified work schedule; Plaintiff

continued working until April 2018 when she was let go. (R. 48,

84.) Plaintiff testified she then worked one day per week at a

data entry job for a friend’s company, until she eventually quit

due to symptoms of obsessive-compulsive disorder (“OCD”),

testifying that “get[ting] out of the house was an issue.” (R. 84,

96.) She subsequently tried looking for work through the

unemployment office but testified she was repeatedly told she was

overqualified. (R. 60-61.)

On August 7, 2018, Plaintiff completed a function report

detailing the impact of her alleged disabilities on her daily

activities. (R. 294.) Among other things, Plaintiff explained

she spent most of her time at home, engaging in household duties

and looking after her children, but her level of engagement varied

depending on how she was feeling any given day. (R. 294-95.)

Plaintiff testified she could no longer work because of

the mental instability she experienced leaving her house, the level

of which varied from day-to-day. (R. 51-52.) She stated she had

difficulty performing both simple and complex tasks; by way of

example, Plaintiff explained she struggled balancing her personal

checkbook. (R. 51-52.) When questioned whether she believed she

could do a two-step task, Plaintiff responded “Yeah, I’m sure I

could.” (R. 92.)

Plaintiff testified that her time outside the house was

largely limited to her doctor appointments, two weekly therapy

sessions, and her children’s sports and dance events. (R. 52,

90.) She also stated she did not “participate in social

gatherings.” (R. 95.) Plaintiff testified she needs to maintain

a “very controlled environment” generally by being at home. (R.

65.) If she does not, she runs the risk of “getting to [a] manic

state” followed by a depressive one. (R. 91-92.)

Plaintiff also testified to several physical

impairments, as well as the frequent need to limit her exposure to

light and sound since such exposure can induce a migraine, at which

point she’s “done for the day into the night.” (R. 62-63.)

Plaintiff further stated she has difficulty sitting for long

periods of time due to left hip bursitis and arthritis for which

she receives shots of Dipyramidol every two to three months and

which shots alleviate her joint pain. (R. 54, 56.) Plaintiff

also claimed having left knee pain from arthritis, as well as

bilateral hand pain, pain in her wrists, and pain in her right

shoulder from fibromyalgia. (R. 55-57.) At her first disability

hearing, Plaintiff testified she could sit and stand for 20 to 30

minutes periods and lift five to ten pounds. (R. 58-59, 61.) At

the 2020 Hearing, Plaintiff testified she could sit or stand for

approximately one hour at a time. (R. 86-87.)

B. Plaintiff’s Mental Health Medical History3

For years before Plaintiff alleged a disability, she

received treatment for anxiety and depression. (R. 401, 424.) As

early as May 2014, Dr. Jagust noted Plaintiff’s complaints of

anxiety and that Plaintiff had a history of OCD. (R. 401.) On

3 While it is undisputed Plaintiff has physical impairments in

addition to mental ones, since Plaintiff’s appeal focuses upon her

mental impairments, the Court does likewise. Accordingly, no

discussions of Plaintiff’s physical impairments – including

treatments thereof – are addressed herein. See, e.g., Rodriguez

v. Comm’n of Soc. Sec., No. 10665, 2024 WL 1342834, at *2 (S.D.N.Y.

Mar. 29, 2024) (where claimant did not challenge ALJ’s findings

regarding claimant’s physical limitations, focusing discussion on

claimant’s mental impairments).

For convenience, the Court notes generally: Plaintiff’s

physical impairments began in June 2002 as the result of a motor

vehicle accident. (R. 385, 387, 389, 390-91.) Due to the

accident, she suffered from neck pain radiating into her left

shoulder and lower back pain. (See id.) Thereafter, she suffered,

inter alia, impaired range of motion, back pain, neck and radiating

shoulder pain, and knee pain. (See generally Pl. Support Memo at

5-6 (providing history of pre-2018 physical impairments with

relevant record citations).) Her physical impairments worsened

with the passage of time. For example, by Fall 2018, Plaintiff

was diagnosed with, inter alia: fibromyalgia; left hip arthralgia;

fatigue; vitamin D deficiency; Hashimoto’s thyroiditis; a history

of left knee surgery; and ehrlichiosis. (R. 581-82, 759-68.)

Plaintiff was prescribed Flexeril. (R. 767.) In late April 2019,

Plaintiff was noted to suffer, inter alia: polyarthralgias;

polyarthritis; fatigue; morning stiffness; myalgia; positive ANA;

pain in the left hip, lower back and neck; and moderate bilateral

hand pain. (R. 747-58.) She was diagnosed with, inter alia,

fibromyalgia/soft tissue rheumatism and bilateral subacromial

bursitis. (R. 752.) Among other treatments, Plaintiff has

received nerve block and other injections (R. 850-54, 855-59, 752,

882, 903-10), has worn braces, had physical therapy (R. 576), and

has had surgery (R. 549-50).

June 5, 2014, Dr. Jagust prescribed Zoloft, and on September 18,

2014, he prescribed Xanax. (R. 402.) Both prescriptions were

refilled in March 2015. (R. 399.) On June 18, 2015, Dr. Jagust

recorded Plaintiff having increased her Xanax usage and increased

her prescription for Zoloft. (R. 425.) Said prescriptions were

continued on: September 12, 2015; November 12, 2015; January 28,

2016; May 19, 2016; and, November 3, 2016. (R. 396-98, 427.) Once

more, on April 20, 2017, Dr. Jagust increased Plaintiff’s Zoloft

prescription, as well as continued her prescriptions again on

November 14, 2017. (R. 503-04.)

Then, in December 2017, having suffered a “mental

nervous breakdown”, Plaintiff went home early from her job and

slept for two days until she saw a doctor, who increased her

prescription for Zoloft and continued her prescription for Xanax.

(R. 47-48.) Her psychiatrist diagnosed her with bipolar disorder,

and she was prescribed Seroquel. (R. 50.)

On September 6, 2018, Dr. Jagust conducted Plaintiff’s

annual exam, noting Plaintiff had ongoing anxiety, depression, and

fibromyalgia, but no psychiatric symptoms. (R. 394, 559.) Dr.

Jagust refilled Plaintiff’s prescriptions for Zoloft and Xanax.

(R. 560.)

On December 6, 2018, Plaintiff began treatment with

Frances Stincone, LCSWR4 (“Ms. Stincone”), for symptoms of

depression, anxiety, and OCD. (R. 793-824.) Plaintiff reported

having periodic peaks of anxiety and periods of productivity. (R.

793.) Ms. Stincone recorded her belief that Plaintiff was

“withholding information” and appeared depressed and anxious.

(R. 799.)

On January 15, 2019, Plaintiff had an initial

psychiatric evaluation with Linda Lyon, Psychiatric NP5 (“NP

Lyon”). NP Lyon noted Plaintiff struggled with anxiety and

symptoms of OCD since “the mid 90s”. (R. 825.) Plaintiff reported

a history of mood swings, like those she reported to Ms. Stincone,

ranging from periods of depression to periods of productivity,

including cleaning bursts. (R. 825, 840.) NP Lyon diagnosed

4 The acronym “LCSW” stands for “licensed clinical social worker”

and the “R” was a privilege designated for those who

“demonstrate[d] three years of post-LCSW supervised experience in

diagnosis, psychotherapy and assessment-based treatment planning.”

N.Y.S. Educ. Dep’t, Office of the Professions: Advisory Notices,

Elimination of the “R” Privilege for Licensed Clinical Social

Workers, available at https://www.op.nysed.gov/release/advisory-

notices/elimination-of-the-r-privilge (last visited Sept. 11,

2024).

5 The acronym “NP” stands for “nurse practitioner”; a Psychiatric

NP is an NP specializing in the area of psychiatry. See generally

N.Y.S. Educ. Dep’t, Office of the Professions: N.Y.S. Licensed

Professionals, Nurse Practitioners, Certification Requirements for

Nurse Practitioners, available at

https://www.op.nysed.gov/professions/nurse-

practitioners/certification-requirements (last visited Sept. 11,

2024).

unspecified mood (affective) disorder, dysthymic disorder, anxiety

disorder, OCD, and alcohol dependence. (R. 838.) She prescribed

Seroquel to Plaintiff for mood stabilization. (R. 840.)

On April 5, 2019, Plaintiff followed up with Suzanne

Kontak, Psychiatric NP (“NP Kontak”), who noted Plaintiff reported

a “significantly improved mood, less irritability, improved sleep,

and no racing thoughts”. (R. 842.) In an April 12, 2019 treating

source statement, NP Kontak stated: “Anxiety limits [Plaintiff’s]

ability to leave her house. OCD impairs her ability to complete

tasks in a timely manner. Mood swings/depression/euphoria impairs

her ability to communicate with others in a calm, professional

manner.” (R. 691-92.) On May 1, 2019, NP Kontak noted Plaintiff

reported improved mood stability on her current medication regimen

using Seroquel and Plaintiff was titrating down her use of Zoloft;

going forward, Plaintiff was to continue with her Seroquel and to

decrease her daily dosage of Zolof. (R. 843.)

On May 31, 2019, Dr. Jagust noted both that Plaintiff

was responding well to Seroquel and was still seeing her therapist

twice weekly.

On June 7, 2019, Ms. Stincone and Dr. Jagust completed

a questionnaire entitled “Medical Source Statement of Ability to

Do Work-Related Activities (Mental)” questionnaire (hereafter, the

“Questionnaire Response”). (R. 860-62.) In their Questionnaire

Response, Ms. Stincone and Dr. Jagust stated Plaintiff had marked

limitations: in her abilities to understand, remember, and carry

out complex instructions; to make judgments on complex

work-related decisions; to interact appropriately with

supervisors; and, respond to usual work situations and changes in

a routine work setting. (R. 860-61.) They reported Plaintiff had

moderate limitations in her abilities to: understand and remember

simple instructions; make judgments on simple work-related

decisions; and, to interact appropriately with co-workers. (R.

860-61.) Ms. Stincone and Dr. Jagust also indicated Plaintiff had

mild limitations in her abilities to carry out simple instructions

and to interact appropriately with the public. (R. 860-61.) They

further explained Plaintiff: has difficulty adjusting to change

and interacting appropriately with others due to anxiety; suffers

daily sadness and irritability, due to depression, which

negatively impacts her comprehension and ability to interact with

others; is often fatigued or has excess energy, which impacts her

interactions with others; often needs days alone to “get back to

normal”; and, because of impaired memory, has difficulty

comprehending and, therefore, repeatedly asks the same question

before she grasps what is being asked of her. (R. 861.) These

limitations were observed existing since at least December 8, 2018.

(-Id-.-)

On October 22, 2019, Alexandra Matthews, PA-C6 (“PA

Matthews”), saw Plaintiff for a three-month check-up and to request

medication refills. (R. 876.) PA Matthews noted Plaintiff was

continuing weekly individual and group therapy and recommended

Plaintiff continue with same. (R. 877.) After her exam of

Plaintiff, among other things, PA Matthews assessed Plaintiff as

having bipolar disorder, unspecified, and refilled her

prescription medications. (Id.)

On February 11, 2020, Ms. Stincone completed an updated

Questionnaire Response (hereafter, the “2020 Updated Response”).

(R. 914-16.) She indicated Plaintiff had: marked limitations in

her abilities to understand, remember, and carry out complex

instructions; moderate limitations making judgments on complex

work-related decisions and responding appropriately to usual work

situations and changes in a routine work setting; and mild

limitations in her abilities to understand, remember, and carry

out simple instructions, to make judgments on simple work-related

decisions, and to interact appropriately with the public,

6 “The designation PA-C stands for Physician Assistant-Certified

and may be used only by PAs who have successfully completed the

[National Commission on Certification of Physician Assistants]

certifying examination and possess a valid certification.” N.Y.S.

Dep’t of Health, Professional Medical Conduct and Physician

Discipline, Reference Information: Physician Assistant, available

at

https://www.health.ny.gov/professionals/doctors/conduct/physicia

n_assistant.htm#:~:text=The%20designation (last visited Sept. 11,

2024).

supervisors, and co-workers. (R. 914-15.) Ms. Stincone further

explained Plaintiff had difficulty focusing and maintaining

productivity, and was dependent on a support animal. (R. 915.)

C. The Psychiatric Consultative Examination

On September 18, 2018, Kathleen Acer, Ph.D., performed

a psychiatric consultative examination (hereafter, a “Consult

Exam”). (R. 568.) Dr. Acer observed Plaintiff “was dressed in an

appropriate and fairly-groomed fashion” and made eye contact but

was “scattered and difficult to focus.” (R. 569.) She noted

Plaintiff had a nervous mood and affect, had intact attention and

concentration, and had average cognitive functioning. (R. 569.)

The Doctor diagnosed Plaintiff with adjustment disorder with mixed

anxiety and depressed mood. (R. 570.) Dr. Acer stated Plaintiff

had “mild limitations” “consistent with stress related issues, but

this does not appear to be severely hampering her functioning.”

(R. 570.)

D. The VE’s Testimony

At the 2020 Hearing, the VE testified Plaintiff’s prior

work was highly skilled, but sedentary. (R. 97.) When asked by

the ALJ whether there were available jobs for a hypothetical

individual with “the same age, education, background, work

history, transferable skills” as Plaintiff, who could perform

sedentary work for one-hour periods followed by two-minute breaks,

with said work limited to (1) one- or two-step tasks,

(2) occasional interaction with the general public and co-workers,

(3) occasional decision-making that could affect the work setting,

as well as (4) various physical limitations (R. 98.), the VE

responded such jobs did exist in the national economy. (Id.) By

way of example, he identified a Board Assembly Inspector, a

Document Preparer, and a Call-Out Operator. (R. 99.) Moreover,

the VE testified such jobs were available to those who can interact

only occasionally with a supervisor. (Id.) When questioned by

the VE whether being on-task only 80 percent of the workday, i.e.,

off-task for 20 percent of the workday, would affect the ability

of the subject hypothetical person from securing a job, the VE

responded in the affirmative. (R. 99-100.) Relatedly, when

Plaintiff’s counsel inquired of the VE whether being absent from

work for more than a day-and-a-half per month would impact that

hypothetical individual’s ability to secure employment in one of

the identified jobs, the VE again responded affirmatively. (R.

100.)

DISCUSSION

I. Standard of Review

When reviewing a final decision of the Commissioner, a

district court must “conduct a plenary review of the administrative

record to determine if there is substantial evidence, considering

the record as a whole, to support the Commissioner’s decision and

if the correct legal standards have been applied.” Rucker v.

Kijakazi, 48 F.4th 86, 90-91 (2d Cir. 2022) (quoting Estrella v.

Berryhill, 925 F.3d 90, 95 (2d Cir. 2019)). District courts will

overturn an ALJ’s decision only if the ALJ applied an incorrect

legal standard, or if the ALJ’s ruling was not supported by

substantial evidence. Id. (citing Talavera v. Astrue, 697 F.3d

145, 151 (2d Cir. 2012)). “[S]ubstantial evidence . . . 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) (quoting Richardson v. Perales, 402 U.S. 389,

401 (1971)).

II. The ALJ’s Decision and the Five-Step Disability Analysis

First, the ALJ found Plaintiff meets the insured status

requirements through September 30, 2017. (R. at 15.) The ALJ then

applied the five-step disability analysis and concluded Plaintiff

was not disabled from the Onset Date through the date of his 2020

Decision (R. 13-25). (See R. 25); 20 C.F.R. § 404.1520.

At step one, the ALJ found Plaintiff had not engaged in

substantial gainful activity since the alleged Onset Date.

(R. 15.)

At step two, the ALJ determined Plaintiff “has the

following severe impairments: status post-left knee arthroscopy,

left hip degenerative changes, obesity, bilateral shoulder

degenerative changes, bilateral carpal tunnel syndrome,

fibromyalgia, major depressive disorder, [and] anxiety disorder

unspecified” which impairments “impose more than minimal

functional limitations.” (R. 15-16 (bold emphases omitted).)

There was no mention of Plaintiff’s bipolar depression.

At step three, the ALJ determined Plaintiff’s

impairments or combination thereof did not meet or medically equal

the severity “of one of the listed impairments in 20 CFR Part 404,

Subpart P, Appendix 1” of the Social Security regulations because,

considered singly or in combination, the severity of Plaintiff’s

mental impairments “d[id] not meet or medically equal the criteria

of listings 12.04 and 12.06”. (R. 16.) The ALJ’s finding was

based upon the “‘paragraph B’ criteria”, which considers the impact

of a claimant’s mental impairments in four categories:

(1) understanding, remembering, or applying information;

(2) interacting with others; (3) concentrating, persisting, or

maintaining pace; and (4) managing herself. (R. 16.) As to

Category One: The ALJ examined Plaintiff’s abilities for

understanding, remembering, or applying information and found

Plaintiff had mild limitations based upon her stating “she could

perform simple maintenance, prepare meals, pay bills, shop, and

drive.” (R. 16.) As to Category Two: The ALJ found Plaintiff had

a moderate limitation in her ability to interact with others

because she stated she is “able to get along with others, shop,

and live with others” and the medical evidence described Plaintiff

“as pleasant and cooperative.” (Id.) As to Category Three: The

ALJ further determined Plaintiff was moderately limited regarding

concentration, persistence, and maintenance-of-pace. (Id.) The

ALJ based this assessment upon Plaintiff stating she is “able to

drive, prepare meals, watch TV, manage funds, and use the internet”

and there was no record evidence of “distractibility”. (Id.) As

to Category Four: The ALJ determined Plaintiff suffered “no

limitations in her ability to adapt or manage herself” because she

“is able to handle self-care and personal hygiene and care for

children” and “the objective evidence in the record showed

[Plaintiff] to have appropriate grooming and hygiene.” (Id.) At

bottom, because Plaintiff’s mental impairments did not cause at

least two “marked” limitations or one “extreme Limitation, the ALJ

found Plaintiff did not satisfy the “paragraph B” criteria. (Id.)

Moreover, as to the alternative “paragraph C” criteria, in a

conclusory manner, the ALJ stated “the evidence fails to establish

the presence” of those criteria. (R. 17.)

At step four, the ALJ determined Plaintiff had the

residual functional capacity (“RFC”):

to perform sedentary work . . . except: sit 1

hour followed by a 2 minute break; occasional

stooping, crouching, crawling, kneeling,

squatting, climbing; frequent use of hands for

fine and gross motor skills; limited to one-

or two- step tasks, occasional interaction

with the public, coworkers, and supervisors[;]

low stress work defined as occasional

decision-making and occasional changes in work

setting.

(Id.); see also 20 CFR § 404.1529. To support his RFC

determination, the ALJ stated he “considered all symptoms and the

extent to which these symptoms can reasonably be accepted as

consistent with the objective medical evidence and other

evidence.” (Id.)

Specific to Plaintiff’s mental impairments, observing

Plaintiff applied for disability insurance benefits on July 6,

2018, the ALJ stated Plaintiff first saw Dr. Ahmed a month earlier

and reported to the Doctor that she had a history of anxiety and

depression; Plaintiff also claimed she was unable to work due to

anxiety and depression, which conditions Dr. Ahmed was treating.

(R. 20.) Two months later, on September 6, 2018, Plaintiff saw

Dr. Jagust who, notwithstanding observing Plaintiff did not

present with “gross evidence of depression”, prescribed Plaintiff

Zoloft and Xanax and diagnosed her with major depressive disorder

and anxiety disorder, unspecified. (Id.) A few weeks later in

September 2018, Plaintiff saw Dr. Acer for a psychological Consult

Exam, who found Plaintiff: appropriately dressed and groomed; made

appropriate eye contact; used adequate expressive and receptive

language skills, but whose speech, while fluent, was somewhat

pressured due to anxiety; was not evidencing hallucinations,

delusions or paranoia, but had irrelevant and scatter thought

processes; had a mood and affect which were nervous; and, was alert

and oriented, with intact attention and concentration, as well as

intact recent and remote memory skills. (Id.) The ALJ highlighted

that in November 2018, Plaintiff went to Farmingville Mental Health

Clinic for treatment, where she reported experiencing anxiety

attacks, mania, and compulsive behavior, i.e., excessive cleaning

and organizing, even though she “simultaneously told the Social

Security Administration that she was quite limited in her cleaning

abilities due to her physical impairments.” (Id.) The psychiatric

nurse practitioner found Plaintiff: behaved cooperatively;

presented neatly groomed and dressed; had a depressed and anxious

mood, with her affect congruent to mood; exhibited speech, eye

contact, and psychomotor behavior within normal limits; did not

appear delusional; to have thought process that could be tangential

but with content that was logical; and, cognitively intact. (Id.)

In a subsequent, late-January 2019 appointment, Plaintiff reported

a manic cleaning episode, which led to her being prescribed

Seroquel. (Id.) Subsequently, in early-April 2019, Plaintiff

“reported significantly improved mood, less irritability, denied

racing thoughts, and also ha[d] improved sleep with the addition

of Seroquel.” (Id.) Therefore, Plaintiff’s dosage of Zoloft began

to be reduced with no development of depressive symptoms. (Id. at

20-21.) Again, in early- and late-May 2019, Plaintiff reported:

“improved mood stability on [her] current medical regimen of

Seroquel”; “that Seroquel was ‘working well for her’”; and, “no

psychiatric symptoms”. (Id. at 21.) “[T]here was no evidence of

depression on examination.” (Id. (citing Ex. 24F (Dr. Jagust’s

Office Treatment Records from Nov. 14, 2017 to May 31, 2019)).)

The ALJ concluded that during a mid-September 2019 endocrinology

follow-up appointment, Plaintiff: “was oriented in time, place,

and person”; “had a normal mood and affect”; and, exhibited normal

recent and remote memory. (Id.)

In his analysis of the record, as to Plaintiff’s mental

impairments, the ALJ underscored: while claiming she experienced

a nervous breakdown in 2017, “[t]here is no evidence of psychiatric

hospitalization” and Plaintiff “did not seek outpatient

psychiatric treatment until after she filed her disability

application” (R. 21); Plaintiff was “treated by a psychiatric nurse

for less than a year before she was ‘cleared’ to have her primary

care provider prescribe medications” (id.); and, finding

Plaintiff’s activities of daily living to be inconsistent with her

claims, (curiously) stating, by way of example, that Plaintiff

testified she was confined to her house, except for doctors’

appointments, but drove herself to her Consult Exams (see id.).

The ALJ found Ms. Stincone’s 2020 Updated Response, in which Ms.

Stincone reported only one category of marked limitations, i.e.,

that of understanding, remembering, and carrying out complex work-

related decision, to be consistent with: the cognitive and

behavioral functioning observed in treatment notes and the

psychiatric Consult Exam; and, the conservative level of treatment

received by Plaintiff. (See id. at 22 (citing Ex. 34F (2020

Updated Response).) Accordingly, the ALJ found Ms. Stincone’s

2020 Updated Response persuasive and relied upon it to limit

Plaintiff: to simple tasks and decision-making; regarding

workplace changes; and, in exposure to social interactions. (See

id.) He then proceeded to contrast his assessment of the 2020

Updated Response with the 2019 Questionnaire Response completed by

Dr. Jugust and Ms. Stincone, highlighting the earlier

Questionnaire Response identified two categories of marked

limitations, i.e., the category regarding understanding,

remembering, and carrying out complex instructions; and the

category regarding interacting with supervisors, and responding

appropriately to usual work situations and to changes in routine

work settings. (See id. at 22 (citing Ex. 29F (Questionnaire

Response)).) The Questionnaire Response indicated the reasons for

these limitations were: Plaintiff’s moods were unstable; having to

leave her house exacerbated Plaintiff’s anxiety and required her

to recover from said anxiety; and, because of depressive symptoms

she suffered, Plaintiff’s daily sadness and irritability

negatively impacted her ability to engage in sustained work

requiring comprehension and being around and interacting with

others. (See id. at 23.) The ALJ found the Questionnaire

Response’s “marked” limitations findings were not persuasive

because: said limitations were “not supported by any mental status

examination findings”; the Questionnaire Response (i) was issued

a week after Dr. Jagust’s physician’s assistant found no evidence

of depression after examining Plaintiff, (ii) noted Plaintiff “had

been ‘cleared’ by psychiatry”, and (iii) noted Plaintiff’s

improvement on Seroquel; “Dr. Jagust is not a psychologist or

psychiatrist”; and, in her progress notes, Ms. Stincone reported

Plaintiff cognitively intact but did not report mood instability

or inappropriate behavior that would affect appropriately

interacting with others. (Id.) Moreover, the 2020 Updated

Response “was less restrictive which shows medical improvement.”

(Id.)

However, the ALJ found the earlier, 2018 opinion

rendered by Dr. Acer after her Consult Exam of Plaintiff to be

persuasive. (R. 23.) Upon examination, Dr. Acer found, inter

alia, Plaintiff: had only mild limitations regulating emotions

controlling behavior and sustaining an ordinary routine; but had

intact attention, concentration, and memory. (See id. (citing Ex.

17F (Acer Sept. 2018 Report)).) The ALJ stated Dr. Acer’s 2018

opinion was “consistent with the conservative course of treatment

[Plaintiff] ha[d] received.” (Id.)

Conversely, the ALJ found NP Kontak’s April 2019

Certification, which indicated Plaintiff’s “impairments consist of

anxiety, depression, OCD, euphoria, mood swings, bipolar” and

which impairments affected her abilities to leave her home,

complete tasks in a timely manner, and communicate with others in

a professional manner, was not persuasive. (Id. (citing Ex. 21F).)

He stated NP Kontak’s opinion “conflicts with mental status

findings of Ms. Kontak and her colleagues at the Farmingville

Mental Health Clinic.” (Id.) He also found it “remarkable” that

a month later “[NP] Kontak indicated that [Plaintiff] was ‘cleared’

psychiatrically and could continue with her primary care practice

for psychiatric medications” which was “inconsistent with [NP

Kontak’s] report.” (Id.)

At step four, the ALJ concluded “the demands of

[Plaintiff’s] past relevant work exceed the residual functional

capacity” and Plaintiff “is unable to perform past relevant work

as actually or generally performed.” (R. 24.) However, based

upon Plaintiff’s age, education, work experience, and RFC, the ALJ

determined jobs existing in significant numbers in the national

economy were available that Plaintiff could perform. (See id.)

Without clear explanation, the ALJ proceeded to discuss sedentary

work that, given Plaintiff’s additional limitations, may be

available to Plaintiff. (See id.) Thus, at step five, the ALJ

determined Plaintiff could make a successful adjustment to

unskilled sedentary work existing in significant numbers in the

national economy, as described by the VE during Plaintiff’s 2020

Hearing. (See id.) Hence, the ALJ determined Plaintiff was not

disabled. (R. 25.)

III. Analysis

Plaintiff advances two arguments on appeal: (1) the ALJ

erred by finding Plaintiff’s bipolar disorder was not a severe

impairment, especially in light of her medical records and the

ALJ’s prior 2019 decision in which he found one of Plaintiff’s

severe impairments was bipolar disorder (see Pl. Support Memo at

22); and (2) the ALJ did not properly consider the medical evidence

before him, cherry-picking evidence to support his decision (see

id. at 26) and failing to seek clarifications regarding purported

inconsistencies in the record (see id. at 27, 29-30). In

opposition, the Commissioner contends: (a) the ALJ “properly

weighed medical evidence and other evidence”, as well as

“Plaintiff’s improvement with treatment, and her daily activities”

(Comm’r Support Memo at 17; see also id. at 24); and (b) Plaintiff

did not rely upon her physical impairments as a basis for not being

able to work, but which physical impairments the ALJ found did not

preclude sedentary work (see id. at 24-25).

The Court first considers the record before it. It is

well-established:

Social Security proceedings are

non-adversarial and the ALJ is obliged “to

investigate the facts and develop the

arguments both for and against granting

benefits.” Sims v. Apfel, 530 U.S. 103, 111,

120 S. Ct. 2080, 147 L. Ed. 2d 80

(2000) (citation omitted). This obligation

applies even if the claimant is represented by

counsel. See, e.g., Rosa v. Callahan, 168

F.3d 72, 79 (2d Cir. 1999) (citing Perez v.

Chater, 77 F.3d 41, 47 (2d Cir. 1996)). The

ALJ’s duty to develop the record has been

described as a “bedrock principle of Social

Security law.” Batista v. Barnhart, 326 F.

Supp. 2d 345, 353 (E.D.N.Y. 2004)

(citing Brown v. Apfel, 174 F.3d 59 (2d Cir.

1999)).

Michelle C. v. Comm’r of Soc. Sec., No. 23-CV-7144, 2024 WL

1706000, at *5 (S.D.N.Y. Apr. 3, 2024), report and recommendation

adopted, 2024 WL 1702127 (S.D.N.Y. Apr. 18, 2024). Moreover, it

has been “consistently recognized that ‘an ALJ has a heightened

duty to develop the record when a claimant asserts a mental

impairment.’” Id. at *6 (quoting Gabrielsen v. Colvin, No.

12-CV-5694, 2015 WL 4597548, at *4-5 (S.D.N.Y. July 30, 2015)

(collecting cases)). Indeed, “[t]his ‘heightened duty’ derives

from the fact that a claimant’s mental illness may greatly impede

an evaluator’s assessment of a claimant’s ability to function in

the workplace, thus necessitating a more thorough review.” Id.

(quoting Piscope v. Colvin, 201 F. Supp. 3d 456, 462-63 (S.D.N.Y.

2016)). In that vein, “[t]he duty to develop the record . . .

includes the duty to re-contact physicians when needed to afford

the claimant a full and fair hearing based on an adequately

developed record.” Id.

“Whether the ALJ has satisfied this duty to develop the

record is a threshold question. Before determining whether the

Commissioner’s final decision is supported by substantial evidence

. . . the court must first be satisfied that the ALJ . . .

completely developed the administrative record.” Campbell v.

Comm’r of Soc. Sec., No. 19-CV-4516, 2020 WL 4581776, at *14

(S.D.N.Y. Aug. 10, 2020); see also Telesco v. Comm’r of Soc. Sec.,

577 F. Supp. 3d 336, 353 (S.D.N.Y. 2021) (finding, even though

claimant did not challenge sufficiency of the record, ALJ erred by

failing to adequately develop the record); Berte v. Comm’r of Soc.

Sec., No. 20-CV-2889, 2023 WL 2760515, *3 (E.D.N.Y. Apr. 3, 2023)

(remanding case where ALJ based his non-disability determination

on deficiencies in claimant’s medical records because ALJ failed

to develop said record) (collecting cases); Sanchez v. Saul,

No. 18-CV-12102, 2020 WL 2951884, at *23 (S.D.N.Y. Jan. 13,

2020) (“As a threshold matter, and regardless of the fact that

Plaintiff did not raise an express challenge to the adequacy of

the Record, this Court must independently consider the question of

whether the ALJ failed to satisfy his duty to develop the

Record.”), report and recommendation adopted, 2020 WL 1330215

(S.D.N.Y. Mar. 23, 2020). “Failing to adequately develop the

record is an independent ground for vacating the ALJ’s decision

and remanding for further findings.” Diano v. Comm’r of Soc. Sec.,

No. 19-CV-2265, 2020 WL 13555076, at *16 (E.D.N.Y. Dec. 2, 2020)

(citing Rosa, 168 F.3d at 83 (finding remand “particularly

appropriate” where ALJ failed to obtain adequate information from

treating physicians and potentially relevant information from

other doctors)) (collecting cases).

Here, the Court is not satisfied the ALJ properly

developed the administrative record. The following instances

highlight example problems with said record.

As to Plaintiff’s Bipolar Disorder: In his initial

September 2019 decision, the ALJ found one of the severe

impairments Plaintiff suffers is bipolar disorder. (R. 127.) And,

he acknowledged Plaintiff’s severe impairment of bipolar disorder

at the beginning of Plaintiff’s second, 2020 Hearing. (R. 85.)

Yet, there is a complete absence of any discussion of this

impairment in his 2020 Decision; it appears, therefore, the ALJ

failed to consider the impact Plaintiff’s bipolar symptoms would

have on her RFC. Such failure warrants a remand. Cf., e.g.,

Biestek v. Berryhill, 587 U.S. 97, 102 (2019) (“On judicial review,

an ALJ’s factual findings . . . ‘shall be conclusive’ if supported

by ‘substantial evidence.’”) (quoting 42 U.S.C. § 405(g)); see

also 20 C.F.R. § 404.1520(a)(3) (“We will consider all evidence in

your case record when we make a determination or decision whether

you are disabled.” (emphasis added)); Viets v. Kijakazi, No.

3:21-CV-1241, 2023 WL 2706233, at *4 (D. Conn. Mar. 30, 2023)

(remanding case to Commissioner “because the ALJ failed to mention

. . . two severe impairments at Step Three”; therefore, the court

could not “determine whether the ALJ properly evaluated the

combination of [claimant’s] impairments for medical equivalence”)

(collecting cases); Notaro v. Berryhill, No. 16-CV-0603, 2017 WL

4324690, at *3 (W.D.N.Y. Sept. 29, 2017) (“The ALJ’s failure to

consider plaintiff’s various other mental health diagnoses at

steps two and three constituted reversible error, because a full

consideration of plaintiff’s anxiety, PTSD, and personality

disorder could have affected the outcome of his application.”).

As to the paragraph C criteria: Notwithstanding

acknowledging one of the severe impairments Plaintiff alleged she

was suffering was bipolar disorder (see 2020 Hr’g, R. 85), and

stating he “considered whether the ‘paragraph C’ criteria are

satisfied”, the ALJ baldly concluded “the evidence fails to

establish the presence of the ‘paragraph C’ criteria.” (R. 17.)

Indeed, he provided no discussion whether Plaintiff could

demonstrate a minimal capacity to adapt to changes in her

environment or to demands not already a part of her daily life,

part of the paragraph C analysis. See 20 C.F.R. pt. 404, subpt.

P, app. 1, § 12.04. Yet, at her 2020 Hearing, Plaintiff testified,

inter alia: it was difficult for her to leave her house (R. 87);

she barely leaves her home, other than for doctor appointments

(R. 88; see also R. 95); after she tried to go to a store, she had

a “bad episode” where she had to leave the store mid-shopping, and

then went home, proceeded to vomit, and had difficultly breathing

(id.); she cannot approach tasks outside her routine without

getting into a manic state (R. 91; see also 96); she must adhere

to the “exact same routine every day” and maintain a controlled

environment for her mental well-being (R. 92); and, she does not

participate in social gatherings (R. 95). Such testimony presents

colorable evidence Plaintiff suffers from bipolar disorder

warranting a further discussion of the paragraph C criteria. Cf.,

e.g., Santiago Sanchez v. Comm’r of Soc. Sec., No. 20-CV-7653,

2022 WL 3152585, at *5 (S.D.N.Y. Aug. 8, 2022) (“The threshold for

demonstrating a severe impairment [at step two] is low.”); see

also generally Garcia v. Comm’r of Soc. Sec., 496 F. Supp. 2d 235,

242-43 (E.D.N.Y. 2007) (where ALJ’s findings did not satisfy the

criteria of Listing 12.04, which addresses bipolar disorders,

finding there was not substantial evidence to support ALJ’s

decision). Upon such a showing, the ALJ was obligated to take

steps to further develop the record. See, e.g., Jackson v.

Kijakazi, 588 F. Supp. 3d 558, 577 (S.D.N.Y. 2022) (stating an

ALJ’s duty to develop the record “encompasses not only the duty to

obtain a claimant’s medical records and reports but also the duty

to question the claimant adequately about any subjective

complaints and the impact of the claimant’s impairments on the

claimant’s functional capacity.” (citations omitted)); Berte, 2023

WL 2760515, *3 (“Since [the] ALJ . . . relied on the lack of

diagnostic testing in Plaintiff’s medical records to find her not

disabled, he should have more fully developed the record with

respect to the diagnostic tests listed in Plaintiff’s medical

records.”).

As to Dr. Jagust and Ms. Stincone’s Questionnaire

Response: In discounting the Questionnaire Response of Dr. Jagust

and Ms. Stincone, the ALJ made much of Plaintiff’s contention she

“had been ‘cleared’ by psychiatry.” (R. 23.) However, as

Plaintiff persuasively argues: “This reference to Dr. Jagust’s

May 31, 2019, office visit note actually raises more questions

than it answers.” The Court agrees. It appears the notation (see

R. 689) is taken out of context since “earlier in the same note,”

the Doctor reported, “Therapist asked [Plaintiff] to discuss with

PCP if we can start writing the Seroquel for her. [Plaintiff]

states they will send all records to us if we need to have them on

file and has already filled out authorization forms to do so.”

(R. 688.) The more logical explanation, as advanced by Plaintiff

is, she was not “released from psychiatric treatment as much as

the management of her medication was transferred from NP Lyons to

Dr. Jagust.” (Pl. Support Memo at 29.) Again, the Court concurs

and further concurs that, at a minimum, this note “merited further

inquiry by the ALJ” to clarify what was meant by being “cleared”.

(Id.)

Relatedly, Plaintiff contends it is “outrageous” the ALJ

discounted Dr. Jagust and Ms. Stincone’s Questionnaire Response on

the basis that it lacked clinical support

in light of the facts that (a) the treatment

records of Ms. Stincone, who treated

[Plaintiff] weekly from December 6, 2018,

through at least April 7, 2020--a period of

almost 70 weeks--are not contained in the

Administrative record (except for the initial

evaluation at Tr. 793-824); and (b) the ALJ

did not make any attempt to obtain said

records.

(Id.) In opposition, the Commissioner urges the Court to “reject

Plaintiff’s argument that the ALJ should have developed the record

by obtaining hypothetical treatment notes from Ms. Stincone”

(Comm’r Support Memo at 20), asserting there were “extensive

records from Farmingville, where Ms. Stincone worked, as well as

medical source statements signed by Ms. Stincone.” (Id. (citing

R. 793-844, 860-62, 914-16).)

The Commissioner’s argument is patently unavailing.

Approximately 70 weeks of treatment notes is not insignificant; it

is inconceivable that such an expanse of records do not contain

relevant insight into Plaintiff’s mental impairments. Cf., e.g.,

Wergen v. Comm’r of Soc. Sec., No. 20-CV-3558, 2024 WL 4107081, at

*13 (E.D.N.Y. Sept. 5, 2024) (finding ALJ failed to properly

develop record where, inter alia, he did not discuss, let alone

mention, treatment notes of claimant’s LMSW who met with claimant

approximately a dozen times in a years’ span; remanding case);

Jackson, 588 F. Supp. 3d at 583 (“[A]n ALJ’s duty to develop the

record takes on heightened importance with respect to a claimant’s

treating medical sources, because those sources ‘are likely to be

the medical professionals most able to provide a detailed,

longitudinal picture of [a claimant’s] medical impairment(s) and

may bring a unique perspective to the medical evidence that cannot

be obtained from the objective medical findings alone or from

reports of individual examinations.’” (quoting Acosta Cuevas v.

Comm’r of Soc. Sec., No. 20-CV-502, 2021 WL 363682, at *11

(S.D.N.Y. Jan. 29, 2021), report and recommendation adopted, 2022

WL 717612 (S.D.N.Y. Mar. 10, 2022))). While, perhaps, not

outrageous, the ALJ’s “failure to request Ms. Stincone’s treatment

notes provides another example of his failure to fully develop the

record.” Here, such failure warrants remand. See, e.g., Diano,

2020 WL 13555076, at *16 (stating ALJ’s “duty to develop [the

record] ‘includes ensuring that the record as a whole is complete

and detailed enough to allow the ALJ to determine the claimant’s

RFC’” (quoting Sigmen v. Colvin, No. 13-CV-0268, 2015 WL 251768,

at *11 (E.D.N.Y. Jan. 20, 2015); further citation omitted)); see

also Khan v. Comm’r of Soc. Sec., No. 14-CV-4260, 2015 WL 5774828,

at *15 (E.D.N.Y. Sept. 30, 2015) (finding ALJ “ignored his

affirmative duty to develop the record” by rejecting opinions of

treating sources “for lack of documentary support”); Barbour v.

Astrue, 950 F. Supp. 2d 480, 490 (E.D.N.Y. 2013) (finding ALJ erred

by rejecting the treating doctor’s opinions without first

attempting to fill any clear gaps in the administrative record

(quoting Rosa, 168 F.3d at 79)).

In sum, upon review of the record presented, the Court

finds the ALJ’s failure to adequately develop the record provides

an independent basis for vacating his decision and remanding this

case back to the Commissioner for further findings. See Rosa, 168

F.3d at 83; see also, e.g., Moran v. Astrue, 569 F.3d 108, 114-15

(2d Cir. 2009); Diano, 2020 WL 13555076, at *16 (citing Rosa).

Therefore, the Court declines to consider Plaintiff’s further

arguments in support of remand.7

7 The Court notes the ALJ’s consideration (or lack thereof) of

part of the VE’s testimony gives the Court pause. The Commissioner

highlights Plaintiff testified “she could not work based on her

mental impairments rather than her physical impairments” (Comm’r

Support Memo at 24 (citing R. 87)), and that, as a whole, the

evidence supported the ALJ’s conclusion “Plaintiff had the

physical RFC to perform sedentary work with only occasional

stooping, crouching, crawling, kneeling, squatting, and climbing.”

(Id. at 25.) However, the ALJ also included the limitation of

Plaintiff sitting one hour at a time followed by a two-minute break

and the limitations “to one- or two- step tasks, occasional

interaction with the public, coworkers, and supervisors, low

stress work defined as occasional decision-making and occasional

changes in work setting.” (R. 17.) Thus, the Commissioner does

not present the full picture.

At Plaintiff’s 2020 Hearing, when the ALJ questioned the VE

about the subject hypothetical individual, he posed an additional

scenario for the VE’s consideration: Would there be jobs available

for the hypothetical individual if that individual was “on-task

only 80 percent of the workday”. (R. 99.) The VE testified that

with this additional scenario to consider, the sedentary jobs the

VE had identified would not be available since “[t]hat’s too much

time . . . off-task”. (Id. at 99-100.) Similarly, in responding

to questioning by Plaintiff’s counsel, the VE testified that more

than one-and-a-half days of absenteeism per month would be

unacceptable to maintain employment. (See id. at 100.) Yet, in

his determination that Plaintiff was not disabled, the ALJ

glaringly failed to take into consideration the VE’s testimony

about an individual being off-task 20 percent of the time or being

absent more than one day per month. (R. 24-25.) Indeed, he did

To the extent Plaintiff requests a new hearing before a

different ALJ (see Pl. Support Memo at 30), that request is denied.

The Court finds no basis for concluding the ALJ is not able to

apply the appropriate legal standard upon remand; nor are there

any indications of bias or hostility on the part of the ALJ. See

Roberto v. Saul, No. 20-CV-1923, at *8-9 (E.D.N.Y. Sept. 1, 2021)

(discussing standards for reassignment). “Thus, the Court leaves

the decision of which ALJ should preside over the remanded

proceeding to the Commissioner’s discretion.” Id. at *9.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that Plaintiff’s

Motion (ECF No. 12) is GRANTED, and the Commissioner’s Cross-Motion

(ECF No. 15) is DENIED. This matter is REMANDED for proceedings

consistent with this Memorandum and Order.

not even provide the required explanation for his decision to

ignore this portion of the VE’s testimony, which would require

remand for the ALJ to do so. See Karle v. Colvin, No. 12-CV-3933,

2013 WL 4779037, at *3 (S.D.N.Y. Sept. 6, 2013) (remanding case

where ALJ ignored VE’s testimony that it would be difficult to

find employment for hypothetical individual who would be

excessively off task); see also Karle v. Astrue, No. 12-CV-3933,

2013 WL 2158474, *18 (S.D.N.Y. May 17, 2013) (recommending case be

remanded because, inter alia, ALJ failed to provide required

explanation for his decision to ignore VE’s testimony regarding

hypothetical individual who would require time off task, thereby

making it difficult to find said individual employment)

(collecting cases).

IT IS FURTHER ORDERED that the Clerk of the Court enter

judgment accordingly and, thereafter, mark this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: October 28, 2024

Central Islip, New York