Hajrula v. Kijakazi

Filing 22

ORDER granting 17 Motion to Remand to Agency; denying 21 Motion to Affirm the Decision of the Commissioner. Signed by Judge Thomas O. Farrish on 5/13/24. (Wood, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Asije H.,
Civil No. 3:23-CV-00522-TOF
Plaintiff,
v.
Martin O’Malley, Commissioner of Social
Security, 1

May 13, 2024

Defendant.
RULING ON PENDING MOTIONS
The Plaintiff, Asije H., 2 appeals the decision of the Commissioner of Social Security
(“Commissioner” or “Defendant”) rejecting her application for disability insurance benefits under
Title II of the Social Security Act. (Compl., ECF No. 1.) She has moved the Court “for an order
reversing or remanding the decision” of the Administrative Law Judge, or “ALJ.” (ECF No. 17.)
The Commissioner asks the Court to affirm, arguing that the ALJ’s decision was “supported by
substantial evidence and made by a correct application of legal principles.” (ECF No. 21.)
The Plaintiff makes five principal claims of error. (See Pl.’s Memo. of L., ECF No. 17-1)
(“Pl.’s Memo.”). First, she claims that the ALJ erred at Step Two of the five-step process for
evaluating Social Security disability claims when he concluded that her obesity was not a severe

1

When she filed her complaint, the Plaintiff named the then-acting Commissioner of Social
Security, Kilolo Kijakazi, as the defendant. (ECF No. 1, at 1.) Since then, President Biden
nominated and the Senate confirmed Martin O’Malley as the Commissioner. Commissioner
O’Malley is automatically substituted as the defendant pursuant to Fed. R. Civ. P. 25(d). The
Clerk of the Court is respectfully directed to amend the caption of the case accordingly.
2

Pursuant to the Court’s January 8, 2021 Standing Order, the Plaintiff will be identified
solely by first name and last initial, or as “Plaintiff,” throughout this opinion. See Standing Order
Re: Social Security Cases, No. CTAO-21-01 (D. Conn. Jan. 8, 2021).

impairment. (Id. at 2-6.) Second, she claims that he committed another error at Step Two when
he held that her obstructive sleep apnea was also not severe. (Id. at 6-8.) Third, she says that the
ALJ faulted her for not using her prescribed C-PAP machine, and she argues that this was
reversible error in the context of her claim. (Id. at 8-10.) Fourth, she contends that the ALJ failed
to follow the applicable Social Security Administration (“SSA”) regulations when reviewing the
medical opinion evidence. (Id. at 10-23.) Fifth and finally, she says that there was an “obvious
gap” in the administrative record, and that the ALJ erred when he proceeded to a decision without
taking all reasonable steps to fill that gap. (Id. at 23-25.)
The Court agrees with the Plaintiff on her fifth claim. Under the unusual circumstances of
this case, it was error for the ALJ to proceed to a decision without making further efforts to obtain
additional records from the Plaintiff’s treating psychiatrist, Dr. Alessandra Buonopane. The
Plaintiff’s Motion for Order (ECF No. 17) will therefore be granted; the Defendant’s Motion for
an Order Affirming the Decision of the Commissioner (ECF No. 21) will be denied; and the case
will be remanded for further proceedings. The Court will not reach the Plaintiff’s other claims of
error; instead, it will direct the Commissioner to consider them on remand.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The Plaintiff is a fifty-one-year old woman who suffers from major depressive disorder

and panic disorder. (R. 620.) Her conditions emerged in 2016-2017, after her mother developed
cancer. (See R. 593.) The Plaintiff had worked as a hostess at her husband’s restaurant (R. 273),
but as her symptoms worsened, she began to “hurt[] the business” because she was “irrita[ble]”
with the customers. (R. 109-10.) She quit her job on January 31, 2017, and she says that she has
not worked since. (R. 272.)

2

In early 2018 the Plaintiff began seeing a new primary care physician, Dr. Ashanee
Thompson. (R. 337.) At her first visit on January 12, her principal complaint was stomach pain,
but she also told Dr. Thompson that she suffered from anxiety and depression. 3 (Id.) The doctor
restarted lapsed prescriptions for Xanax and Paxil, but she added that “[i]f the patient continues to
require Xanax for her anxiety I will refer her to psychiatry for further treatment and management.”
(R. 341.) When the Plaintiff continued to report symptoms at a follow-up visit in April, Dr.
Thompson referred her to a psychiatrist, Dr. Arvind Shah. (See id.; see also R. 329.)
Dr. Shah examined the Plaintiff on April 25, 2018. (R. 329.) He “noticed [her] to be very
anxious, tense, edgy and very preoccupied with negative feelings.” (Id.) He did not observe any
evidence of psychosis, but he did note that the Plaintiff “showed very poor insight” into her
symptoms. He diagnosed her with panic disorder – but not with depressive disorder – and
increased her Paxil dosage. (R. 329-30.) He also “emphasi[zed]” that the Plaintiff should pursue
“counseling to develop better insight with regard to her panic attacks and develop appropriate
coping skills and developing much more socialization so that eventually she can return back to
work[.]” (R. 330.)
The Plaintiff did not undergo much other mental health treatment in 2018, apparently
because of problems with her insurance. (See R. 363 (July 25, 2018 medical note from Dr.
Thompson, stating that “[p]atient was sent to psych but due to insurance change she was not able
to see the psychiatrist”); but see R. 468 (December 7, 2018 record of emergency room visit “for

3

The ALJ apparently thought that this was the first time the Plaintiff sought treatment for
anxiety or depression. (R. 23) (stating that, “[a]lthough the claimant allegedly stopped working
due to her mental impairments in January 2017, she did not seek treatment until about a year
later”). Dr. Thompson’s notes make clear, however, that the Plaintiff had been previously
diagnosed with anxiety and depression by another treatment provider, and that she had been
prescribed Xanax and Paxil. (R. 337.) That provider’s treatment notes are not contained in the
administrative record.
3

evaluation of anxiety”).) She returned to Dr. Shah only once, on May 16, 2018. (R. 333.) From
the fall of 2019 to the summer of 2020, she discussed her mental health issues with an internist,
Dr. Faraz Khan. (E.g., R. 408.) Dr. Khan observed worsening anxiety and depression symptoms
over the course of several months (e.g., R. 408 (“Her depression seems to be much worse”); R.
431 (“Anxiety and depression: Getting worse”)), but generally noted normal mood, affect, and
behavior. (E.g., R. 419, 428, 434.)
The Plaintiff applied for disability insurance benefits on August 13, 2020. (R. 134.) She
claimed to have been disabled since January 31, 2017, the day on which she quit her job at her
husband’s restaurant. (R. 236, 268, 272.) When asked to “[l]ist all of the physical or mental
conditions . . . that limit your ability to work,” she listed “depression,” “panic attacks,” and “sleep
apnea.” (R. 272.)
After she applied for benefits, the Plaintiff began treating with a psychiatrist named
Alessandra Buonopane. (R. 459.) At her initial visit on September 11, 2020, the Plaintiff
explained to Dr. Buonopane that she was “home all of the time,” “need[ed] to take Xanax to go
out,” and did “not want to stay around people.” (Id.) She stated that her symptoms began three
years before with feelings of being “overwhelmed” and “paranoid.” (R. 460.) She also stated that
she had “difficulty sleeping.” (R. 459.) Dr. Buonopane conducted a mental status exam, noting
“fluent, well organized, coherent, and logical” speech along with proper orientation “to person,
place, and time.” (R. 460.) Yet while the Plaintiff denied suicidal ideation, and while she then
denied hallucinations, Dr. Buonopane nonetheless observed evidence of psychosis in the Plaintiff’s
“paranoid thoughts.” (R. 460-61.) The doctor diagnosed “[major depressive disorder] with

4

paranoid thoughts” and “panic disorder with agorophobia [sic],” and she started the Plaintiff on
Seroquel. 4 (R. 461.)
The Plaintiff treated with Dr. Buonopane “[an] average [of two times per] month or more”
between September 2020 and September 2021. (R. 620.) Although this would suggest that there
should be at least twenty-four treatment notes in the record, there are only three. (R. 463.) The
first such note discloses that the Plaintiff saw Dr. Buonopane on September 30, 2020, and that she
reported continuing depression despite improvement in her sleep patterns. (Id.) The second note
is dated October 22, 2020, and it records the Plaintiff as stating that her fatigue had returned (id.)
(recounting that “she was found asleep despite the time 6PM”), and the doctor adding Wellbutrin
to her medication regimen because of continuing “low energy and motivation[.]” (Id.) In the third
note, dated December 2, 2020, the Plaintiff “continue[d] to be very depressed and complain[ed]
about sleep and energy level.” (Id.) Dr. Buonopane adjusted her medications yet again, and she
discussed a “higher level of care” at the Institute of Living or Yale University. (Id.) From there,
however, the trail goes cold; the administrative record contains no progress or psychotherapy notes
from Dr. Buonopane after December 2, 2020. (See R. 459-63.)
While the Plaintiff was treating with Dr. Buonopane, the SSA referred her to a consultative
examination with a psychologist named Erica Preston. (R. 593.) Dr. Preston saw the Plaintiff
only once, and not in person. (Id.) (stating that the “appointment . . . was conducted via telehealth
due to the COVID-19 pandemic”). Moreover, Dr. Preston evidently did not review the Plaintiff’s
medical records before the examination. (Id.) (“The following report is based solely on an

4

Seroquel is a brand name for quetiapine, “an antipsychotic medicine” that “is used alone
or together with other medicines to treat bipolar disorder (depressive and manic episodes) and
schizophrenia.” Mayo Clinic, Drugs and Supplements: Quetiapine (Oral Route), available at
https://www.mayoclinic.org/drugs-supplements/quetiapine-oral-route/description/drg-20066912
(last visited May 13, 2024).
5

interview with the claimant.”). In her post-examination report, the doctor wrote that the Plaintiff
“appears to be largely inactive and isolative due to her mental health conditions, and her ability to
tolerate stress and interact well with others has declined in recent years.” (R. 595.) She diagnosed
the Plaintiff with unspecified anxiety and depressive disorders, and she assessed “mild to
moderate” impairments in several areas of mental functioning. (Id.)
The SSA then asked another psychologist, Christopher Leveille, to review the Plaintiff’s
case. (R. 129.) Dr. Leveille noted that, when Dr. Preston attempted to conduct a Montreal
Cognitive Assessment exam, the Plaintiff did not “put[] forth adequate effort.” (R. 128, 593.) He
also noted that the Plaintiff reported “panic attacks two or three times a day” to Dr. Preston, and
he stated that this claim was “clearly contradicted” by an earlier medical report. (R. 128, 594.) He
therefore largely discounted the history portions of Dr. Preston’s report, instead placing his
“[primary] focus . . . on the objective data.” (R. 128.) Observing no evidence “of mood cycling,
psychosis or risk,” and further observing an absence of inpatient treatment, he concluded that the
Plaintiff’s symptoms were “not differentiated from medical factors (e.g., obesity, sleep apnea).”
(R. 128-29.)

He accordingly endorsed Dr. Preston’s mental residual functional capacity

assessment, adding that the Plaintiff “would likely benefit from returning to work.” (R. 128-29.)
The SSA denied the Plaintiff’s claim for disability insurance benefits at the initial level on
May 4, 2021. (R. 124, 133.) The Plaintiff requested reconsideration on May 18, 2021. (R. 158.)
At the reconsideration level, the SSA asked John Warren, Ed.D., to review the case. (R. 139.) Dr.
Warren cut-and-pasted Dr. Leveille’s evaluation into his own report, adding only a single, short
paragraph of his own. (R. 138.) In that paragraph, Dr. Warren noted that in the six weeks since
Dr. Leveille’s report, there had been “no mental worsening alleged, no new mental source(s)
identified,” nor any “medical evidence contemporaneous with the [Title II] review period added

6

to the file.” (Id.) He nonetheless assessed the Plaintiff with a higher level of limitation –
“moderate” as opposed to “mild” – in the dimension of “[a]dapt[ing] or manag[ing] oneself.”
(Compare R. 138 with R. 128.) Still, he concluded that the “claimant retains the capacity to
perform basic tasks and relate with others well enough for routine workplace purposes.” (Id.) The
SSA then denied the Plaintiff’s claim at the reconsideration level on June 16, 2021. (R. 144.) On
June 30, 2021, the Plaintiff requested a hearing before an ALJ. (R. 185.)
On July 7, 2021, the SSA wrote to the Plaintiff to “explain[] the hearing process and things
that [she] should do now to get ready for [her] hearing.” (R. 160.) In that letter, the agency
explained that the Plaintiff bore the burden “to inform us about or submit all evidence known to
[her] that relates to whether or not” she was disabled. (R. 161.) It added, however, that it could
“help [her] get evidence.” (Id.) The SSA explained that “[i]f a physician, expert, or other person
is not providing documents important to” her case, she could “ask the ALJ to issue a subpoena.”
(Id.) It stated that “[t]he ALJ will issue a subpoena only if he or she thinks the evidence is
necessary to decide [the] case, and the evidence cannot be obtained any other way.” (Id.) The
agency further advised the Plaintiff that, if she wanted to ask the ALJ to issue a subpoena, she had
to do so in writing at least ten days before the hearing. (Id.)
While the hearing was being scheduled, the Plaintiff’s attorney obtained a twenty-threepage medical source statement from Dr. Buonopane. (R. 619-41.) In that statement, the doctor
reported diagnosing the Plaintiff with “major depression with psychosis” (R. 620) (emphasis
added) – a diagnosis that no other doctor had reported (see, e.g., R. 488) (March 6, 2021 report
from Dr. Khan, listing “[c]urrent severe episode of major depressive disorder without psychotic
features” among the Plaintiff’s active problems) (emphasis added), and the absence of which had

7

been noteworthy to both Drs. Leveille and Warren. 5 (R. 128, 139.) Dr. Buonopane also reported
profound impairments in many areas of mental functioning. She wrote, for example, that the
Plaintiff had a “very serious problem” with “[u]sing appropriate coping skills to meet ordinary
demands of a work environment without assistance,” “[i]nteracting appropriately with other[s] in
a work environment without assistance,” and “[g]etting along with other[s] without distracting
them [by] exhibiting behavioral extremes.” (R. 625.) She also stated that the Plaintiff had “no
useful ability to function” in the dimensions of “[p]erform[ing] at a consistent pace without an
unreasonable number and length of rest periods,” “[a]sk[ing] simple questions or request[ing]
assistance,” and “[d]eal[ing] with normal work stress.” (R. 634-35.)
The SSA assigned ALJ Ryan Alger to the case, and Judge Alger scheduled a hearing for
February 3, 2022. (R. 203-07.) Although the Plaintiff’s attorney had been able to obtain a medical
source statement from Dr. Buonopane, she was still having trouble getting the doctor’s full
treatment notes as the hearing approached. (See R. 313.) She therefore wrote to the ALJ on
January 20, 2022, ten business days before the hearing, and asked him to issue subpoenas to Dr.
Buonopane and other “noncompliant” providers. (R. 312-14.) The ALJ did not issue a subpoena,
but instead went forward with the hearing as scheduled. (R. 104.)
After the hearing, the Plaintiff’s attorney wrote a letter to the ALJ about missing medical
records. (R. 327.) Dr. Buonopane had referred the Plaintiff to another doctor for transcranial
magnetic stimulation therapy, but she had “not furnished her most recent updated records which
presumably contain this referral.” (Id.) More broadly, the doctor “did not provide her most recent
progress notes.” (Id.) The Plaintiff’s attorney therefore requested an additional thirty days in

5

The Plaintiff also treated with a Licensed Clinical Social Worker named Rebecca Stamat.
(See. R. 704-49.) LCSW Stamat’s psychotherapy notes reflect that the Plaintiff reported auditory
and visual hallucinations in an August, 2021 telehealth session. (R. 720.)
8

which to attempt to “receive and submit the records.” (Id.) The ALJ granted this request, but he
added that if he did not receive the additional evidence by March 3, 2022, he would issue his
decision without it. (R. 328.)
The records did not come, and the ALJ therefore decided the case on March 28, 2022. (R.
16-29.) As will be explained below, ALJs must follow a five-step sequential evaluation process
in deciding Social Security disability claims, and the ALJ’s decision followed that format. At Step
One, he concluded that the Plaintiff “did not engage in substantial gainful activity during the period
from her alleged onset date of January 31, 2017 through her date last insured of March 31, 2021.”
(R. 18.) At Step Two, he determined that the Plaintiff suffered from the severe impairments of
anxiety disorder and depressive disorder, but that her other ailments – sleep apnea, obesity,
bilateral knee pain, vertigo, status post cholecystectomy, and supraventricular tachycardia – were
“non-severe” when considered both “singly and in combination.” (R. 19.) At Step Three, he
concluded that the Plaintiff’s impairments did not meet or medically equal any of the “Listings” –
that is, the impairments listed in Appendix 1 to 20 C.F.R. Part 404, Subpart B. (R. 20-22.) Relying
in part on Dr. Thompson’s primary care notes and on Dr. Preston’s video exam, the ALJ
determined that “[b]ecause the claimant’s mental impairments did not cause at least two ‘marked’
limitations or one ‘extreme’ limitation, the ‘paragraph B’ criteria” for Listings 12.04 and 12.06
“were not satisfied.” (R. 20-21.)
The ALJ then determined the Plaintiff’s residual functional capacity, or “RFC.” (R. 2227.) He concluded that the Plaintiff “had the residual functional capacity to perform a full range
of work at all exertional levels, but with the following nonexertional limitations: she can carry out
and remember simple instructions, can maintain attention and concentration on simple tasks with
normal breaks, and can have occasional interaction with coworkers, but can have no interaction

9

with the general public.” (R. 22.) In reaching this conclusion, he found Dr. Warren’s brief opinion
“persuasive” because it was “consistent with and supported by the medical evidence.” (R. 25.)
He considered Dr. Leveille’s earlier report to be only “partially persuasive,” because “the moderate
limitation in adapting or managing oneself is not supported, given the lack of suicidal ideations or
psychiatric hospitalizations during the period at issue and generally fair insight and judgment noted
by treating providers.” 6 (Id.) The ALJ then found the report of Dr. Preston’s video examination
to be “partially persuasive.” Where Dr. Preston found no limitation or a mild limitation, the ALJ
found her report to be “consistent with the treatment records noting occasionally flat affect and the
claimant’s panic attacks and insomnia[;]” but where the doctor found a moderate limitation, her
report was “not well-supported, in light of the one-time examination and findings of fair insight
and judgment.” (Id.) The ALJ also discounted as “unpersuasive” two medical source statements
from LCSW Stamat. (R. 25-26.)
The ALJ also reviewed the twenty-three-page medical source statement from Dr.
Buonopane. (R. 26.) He found the opinion to be “unpersuasive” because it was “not wellsupported by her generally unremarkable progress notes[.]” (Id.) He also observed that the
opinion was “internally inconsistent in that it notes some mild to moderate limitations and some
extreme limitations within the same domain” – as, for example, when it found that the Plaintiff
had “only slight problems in interacting appropriately with others in the workplace” but “no ability
to function in interacting appropriately with the public[.]” He added that the “opinion is also
inconsistent with the other mental health evidence, such as the consultative examination and other
treatment providers’ progress notes.” (Id.)

6

The ALJ appears to have mixed up the initial and reconsideration consultants. It was Dr.
Warren, not Dr. Leveille, who assessed the Plaintiff with a “moderate” limitation in the dimension
of adapting and managing herself. (Compare R. 128 with R. 138.)
10

At Step Four of the five-step evaluation process, the ALJ used the RFC he had derived to
conclude that, “[t]hrough the date last insured, the claimant was unable to perform” her past
relevant work as a waitress. (R. 27.) At Step Five, he relied on hearing testimony from a vocational
expert in determining that the Plaintiff could nevertheless perform the jobs of “kitchen helper,”
“marker,” and “routing clerk.” (R. 28.) He therefore concluded that “the claimant was capable of
making a successful adjustment to other work that existed in significant numbers in the national
economy.” (Id.) He ended by holding that “[t]he claimant was not under a disability, as defined
in the Social Security Act, at any time from January 31, 2017, the alleged onset date, through
March 31, 2021, the date last insured.” (Id.) His opinion did not address the Plaintiff’s attorney’s
requests for subpoenas. (R. 16-28.)
The Plaintiff appealed to the Appeals Council the next day. (R. 234-35.) Nearly a year
later, the Council denied her request for review. (R. 1.) The Plaintiff then sued in this Court
(Compl., ECF No. 1), and the Commissioner answered her complaint by filing a certified copy of
the administrative record. (ECF No. 11); see also Suppl. R. for Soc. Sec. 4(b). The Plaintiff filed
a motion for remand (ECF No. 17), and the Commissioner filed a motion to affirm. (ECF No. 21.)
The Plaintiff did not file a reply brief, and her time for doing so has expired. See Suppl. R. for
Soc. Sec. 8. Neither party requested oral argument, and accordingly the motions are ripe for
decision.
II.

APPLICABLE LEGAL PRINCIPLES
To be considered disabled under the Social Security Act, “a claimant must establish an

‘inability to do any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than [twelve] months.’” Smith v. Berryhill, 740

11

F. App’x 721, 722 (2d Cir. 2018) (summary order) (quoting 20 C.F.R. § 404.1505(a)). To
determine whether a claimant is disabled, the ALJ follows a familiar five-step evaluation process.
At Step One, the ALJ determines “whether the claimant is currently engaged in substantial
gainful activity . . . .” McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v.
Astrue, 537 F.3d 117, 120 (2d Cir. 2008)). At Step Two, the ALJ analyzes “whether the claimant
has a severe impairment or combination of impairments . . . .” Id. At Step Three, the ALJ then
evaluates whether the claimant’s disability “meets or equals the severity” of one of the Listings.
Id. At Step Four, the ALJ uses an RFC assessment to determine whether the claimant can perform
any of her “past relevant work.” Id. At Step Five, the ALJ addresses “whether there are significant
numbers of jobs in the national economy that the claimant can perform given the claimant’s [RFC],
age, education, and work experience.” Id. The claimant bears the burden of proving her case at
Steps One through Four. Id. At Step Five, “the burden shift[s] to the Commissioner to show there
is other work that [the claimant] can perform.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443,
445 (2d Cir. 2012) (per curiam).
In reviewing a final decision of the Commissioner, this Court “perform[s] an appellate
function.” Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). Its role is to determine
whether the Commissioner’s decision is supported by substantial evidence and free from legal
error. “A district court may set aside the Commissioner’s determination that a claimant is not
disabled only if the factual findings are not supported by substantial evidence or if the decision is
based on legal error.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (internal quotation marks
omitted).
A disability determination is supported by substantial evidence if a “reasonable mind”
could look at the record and make the same determination as the Commissioner. See Williams v.

12

Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (defining substantial evidence as “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion’) (citations omitted).
Although the standard is deferential, “[s]ubstantial evidence is more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotation marks and
citations omitted). When the decision is supported by substantial evidence, the Court defers to the
Commissioner’s judgment. “Where the Commissioner’s decision rests on adequate findings
supported by evidence having rational probative force, [this Court] will not substitute [its]
judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
An ALJ does not receive the same deference if he has made a material legal error. In other
words, district courts do not defer to the Commissioner's decision “[w]here an error of law has
been made that might have affected the disposition of the case.” Pollard v. Halter, 377 F.3d 183,
189 (2d Cir. 2004) (internal quotation marks omitted). “Even if the Commissioner’s decision is
supported by substantial evidence, legal error alone can be enough to overturn the ALJ’s decision.”
Ellington v. Astrue, 641 F. Supp. 2d 322, 328 (S.D.N.Y. 2009) (citing Johnson v. Bowen, 817 F.2d
983, 986 (2d Cir. 1987)).
III.

DISCUSSION
As noted in the introduction, the Plaintiff asserts five principal claims of error. First, she

asserts that the ALJ erred at Step Two when he concluded that her obesity was not a severe
impairment. (Pl.’s Memo., at 2-6.) Second, she claims that he erred again at Step Two when he
held that her obstructive sleep apnea was likewise non-severe. (Id. at 6-8.) Third, she says that
the ALJ wrongly faulted her for not using her prescribed C-PAP machine. (Id. at 8-10.) Fourth,
she contends that the ALJ improperly applied the regulations governing the treatment of opinion

13

evidence. (Id. at 10-23.) Fifth and finally, she says that there was an “obvious gap” in the
administrative record, and it was error for the ALJ to proceed to a decision without taking all
reasonable steps to fill that gap. (Id. at 23-25.)
I begin my analysis by observing that these claims should be addressed in a different order.
The Plaintiff’s claim about the development of the administrative record appears last in her brief
(id. at 23-25), but courts ordinarily address such claims first, because “[w]hether the ALJ has met
her duty to develop the record is a threshold question that must be addressed before the court can
consider whether the Commissioner’s final decision was supported by substantial evidence.”
Trasielyn A. v. Kijakazi, No. 3:21-cv-253 (TOF), 2022 WL 4129343, at *5 (D. Conn. Sept. 12,
2022); accord Robles v. Saul, No. 3:19-cv-1329 (TOF), 2020 WL 5405877, at *3 (D. Conn. Sept.
9, 2020) (“An analysis of the decision’s congruence with applicable law typically comes first,
because even if the Commissioner’s decision is supported by substantial evidence, legal error alone
can be enough to overturn the ALJ’s decision.”) (citation, quotation marks, and brackets omitted);
Crews v. Astrue, No. 10-Civ.-516 (LTS) (FM), 2012 WL 1107685, at *14 (S.D.N.Y. Mar. 27,
2012), report and recommendation adopted, 2012 WL 2122344 (S.D.N.Y. June 12, 2012) (stating
that courts “must be satisfied that a claimant has had a fully and fair hearing before determining
whether the Commissioner’s conclusions are supported by substantial evidence”). I will therefore
address this claim first, even though the Plaintiff raised it last.
The basic legal principles governing this challenge are well established. As the Second
Circuit has explained, “[b]ecause a hearing on disability benefits is a non-adversarial proceeding,
the ALJ generally has an affirmative obligation to develop the administrative record.” Perez v.
Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing Echevarria v. Sec’y of Health & Human Servs., 685
F.2d 751, 755 (2d Cir. 1982)). This duty includes the duty to “develop a complete medical history

14

of at least the preceding twelve months for any case in which a determination is made that the
individual is not under a disability.” Shackleford v. Saul, No. 3:19-cv-1278 (TOF), 2020 WL
3888037, at *3 (D. Conn. July 10, 2020) (quoting 42 U.S.C. § 423(d)(5)(B)). The duty exists even
where, as here, the claimant is represented by an attorney at the administrative level. Perez, 77
F.3d at 47 (citing Baker v. Bowen, 886 F.2d 289, 292 n.1 (10th Cir. 1989)). And full development
of the record “is particularly important where an applicant alleges that [s]he is suffering from a
mental illness, due to the difficulty in determining whether these individuals will be able to adapt
to the demands or ‘stress’ of the workplace.” Martinez v. Saul, No. 3:19-cv-1017 (TOF), 2020
WL 6440950, at *4 (D. Conn. Nov. 3, 2020) (quoting Merriman v. Comm’r of Soc. Sec., No. 14Civ.-3510 (PGG/HBP), 2015 L 5472934, at *19 (S.D.N.Y. Sept. 17, 2015)). When an ALJ fails
in this duty, he “‘commits legal error.’” Rose v. Comm’r of Soc. Sec., 202 F. Supp. 3d 231, 239
(E.D.N.Y. 2016) (quoting Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999)) (brackets omitted).
The ALJ’s duty to develop the record is not unlimited. As then-Judge Sotomayor once
explained, “where there are no obvious gaps in the administrative record, and where the ALJ
already possesses a ‘complete medical history,’ the ALJ is under no obligation to seek additional
information in advance of rejecting a benefits claim.” Rosa, 168 F.3d at 79 n.5. 1999). Moreover,
the SSA’s regulations require the ALJ to take only reasonable steps to fill gaps; he is not required
to do the unreasonable or the impossible. See 20 C.F.R. § 404.1512(b)(1) (“We will make every
reasonable effort to help you get medical evidence from your own medical sources[.]”) (emphasis
added). The regulations define “reasonable” steps to include “an initial request for evidence from
your medical source . . . and, at any time between 10 and 20 calendar days after the initial request,
if the evidence has not been received, we will make one follow-up request to obtain medical
evidence necessary to make a determination.” Id. Courts therefore often hold that, when the

15

claimant’s treatment provider does not respond to both an initial and a follow-up request for
information, the SSA has complied with its obligations and the ALJ may properly proceed to a
decision. E.g., Keys v. Berryhill, No. 1:16-cv-448 (MAT), 2017 WL 4324689, at *3 (W.D.N.Y.
Sept. 29, 2017).
The ALJ does, however, have an additional tool for obtaining records from an unresponsive
provider: an administrative subpoena. The SSA’s regulations state that, “[w]hen it is reasonably
necessary for the full presentation of a case, an administrative law judge or a member of the
Appeals Council may, on his or her own initiative or at the request of a party, issue subpoenas . . .
for the production of . . . records . . . or other documents that are material to an issue at the hearing.”
20 C.F.R. § 404.950(d)(1). When the party asks the ALJ to subpoena records, she must generally
do so “at least 10 business days before the hearing date,” and her request “must give the name of
the witnesses or documents to be produced; describe the address or location of the witnesses or
documents with sufficient detail to find them; state the important facts that the witness or document
is expected to prove; and indicate why these facts could not be proven without issuing a subpoena.”
20 C.F.R. § 404.950(d)(2).

The SSA’s Hearings, Appeal and Litigation Law Manual

(“HALLEX”) states that “[i]f an ALJ denies a claimant’s request for a subpoena, the ALJ must
notify the claimant of the denial, either in writing or on the record at the hearing.” HALLEX I-25-78. “Whether on the record or in writing, the ALJ will explain why the ALJ declined to issue a
subpoena.” Id.
The decision to grant or deny such a request is within the ALJ’s discretion. The regulation
contemplates the issuance of a subpoena only “[w]hen it is reasonably necessary for the full
presentation of a case,” and even then, the ALJ “may” – not “shall” – issue one. 20 C.F.R. §
404.950(d)(1). The Second Circuit has therefore held that “[t]he plain language of this section

16

clearly places the decision to issue a subpoena within the sound discretion of the ALJ.” Yancey v.
Apfel, 145 F.3d 106, 111 (2d Cir. 1998). “But this discretion is not unlimited, and the ALJ ‘cannot
ignore essential available medical evidence.’” Thurman v. Comm’r of Soc. Sec., No. 17-cv-474
(FPG), 2018 WL 4940726, at *4 (W.D.N.Y. Oct. 12, 2018) (quoting Outman v. Comm’r of Soc.
Sec., No. 1:16-cv-988 (MAT), 2018 WL 3688312, at *2 (W.D.N.Y. Aug. 2, 2018)). “The ALJ
commits ‘harmful error’ when she fails to subpoena medical records that are ‘reasonably
necessary’ to the claimant’s case.” Id.
The Thurman case illustrates the outer limits of the ALJ’s discretion. In that case a Dr.
Conshafter had opined that Thurman could not lift more than ten pounds or tolerate prolonged
walking, sitting, or standing. Id. at *3. The record contained no treatment notes from this doctor,
“despite evidence that Dr. Conshafter regularly examined Thurman and took notes at those
appointments,” and despite the fact that “aside from visits to the emergency room, Dr. Conshafter
was his sole source of medical treatment.” Id. The ALJ sent two letters to the doctor, and when
the doctor did not respond, she denied the claimant’s disability claim in part because the medical
source statement lacked “evidence to support the basis of such significant physical limitations.”
Id. at *4. On appeal, the district court acknowledged the rule of Yancey, but it nonetheless held
that the ALJ had committed reversible error. Id. “Although the ALJ attempted to obtain Dr.
Conshafter’s treatment records via two letter requests, she should have subpoenaed those records
because they were reasonably necessary to the proper resolution of Thurman’s case.” Id. The
doctor’s “opinion, if credited, might preclude Thurman from performing even sedentary work and
thus render him disabled.” Id. The lack of treatment records therefore “created an obvious gap
that the ALJ was obligated to develop.” Id. “Instead, the ALJ used that gap to Thurman’s
detriment” when she denied his disability claim in part because of a lack of “detailed explanations,”

17

“clinical findings,” or “evidence to support the basis of such significant physical limitations.” Id.
Had she issued a subpoena, this information “could presumably be found in the relevant treatment
notes.” Id. Because the notes “were reasonably necessary to the ALJ’s determination,” and
“[b]ecause reliance on Dr. Conshafter’s opinion could have changed the outcome of th[e] case,”
“remand [was] required.” Id. at *5.
The case of Kennedy v. Commissioner of Social Security is similarly illustrative. In
Kennedy the claimant learned that one of her treatment providers produced only 377 pages of its
671-page medical record. No. 17-cv-908 (FPG), 2019 WL 988889, at *3 (W.D.N.Y. Mar. 1,
2019). The ALJ sent two requests for the missing pages, and he held the record open in case the
claimant’s attorney obtained them herself. Id. But when the provider failed to respond, the ALJ
denied the claim on a partial record, citing among other things a “lack of evidence in the record”
supporting disability. Id. at *3-4. When she appealed to the district court, Judge Geraci
acknowledged that “it is the burden of the claimant to provide medical evidence to show she is
disabled.” Id. at *2 (citing 20 C.F.R. § 404.1512(c)). He also acknowledged that “the ALJ’s
obligation to develop the record is not infinite and limitless, and does not extend to circumstances
where the record contains sufficient evidence to allow the ALJ [to] make her determination.” Id.
(citing Guile v. Barnhart, No. 5:07-cv-259 (GLS), 2010 WL 2516586, at *3 (N.D.N.Y. June 14,
2010)). But when the missing records are voluminous, and when one basis for the finding of no
disability was a perceived inconsistency between the claimant’s statements about her symptoms
and the objective medical evidence, and when another basis for that finding was a “lack of evidence
in the record,” the ALJ should have “exercise[d] his discretion to subpoena and review” the
records, and his “failure to do so require[d] remand.” Id. at *3-4.

18

Judge Dooley reached a similar result in Catherine P. v. Kijakazi, No. 3:22-cv-1047
(KAD), 2024 WL 1509179 (D. Conn. Mar. 8, 2024). In that case, the claimant’s therapist opined
that she “suffered from ‘severe anxiety episodes’ rendering her unable to work.” Id. at *2. The
SSA had not obtained the treatment notes from this therapist, even though the record contained
references to “a long-term therapeutic relationship.” Id. On appeal, the claimant contended that
this omission constituted a failure to develop the record, and Judge Dooley agreed. Id. “While
not every missing record will require remand or support a determination that the ALJ failed to
develop the record,” such a determination was proper when the claimant and the therapist had a
long relationship, and when the therapist’s opinion “made clear that” the claimant “had significant
functional limitations due to her mental health.” Id. It was also proper when there was “ample
time to obtain these records” between the reconsideration denial and the hearing. Id. “The fact
that essential treatment records were requested, but not received, does not obviate the ALJ’s
independent duty to develop the record, particularly since the ALJ could have exercised his power
to subpoena them, but did not.” Id. (quoting Harris o/b/o N.L.K. v. Berryhill, 293 F. Supp. 3d 365,
369 (W.D.N.Y. 2018)).
The principles illustrated by these and other, similar authorities may be summarized as
follows. The decision whether to issue a subpoena is within the ALJ’s discretion. Yancey, 145
F.3d at 111. But that discretion is not a license to “ignore essential available medical evidence.”
Thurman, 2018 WL 4940726, at *4. If the record contains a medical opinion that, if credited,
would confirm disability; and if the record does not contain the opining physician’s treatment
notes; an ALJ may exceed the limits of his discretion if he denies the claimant’s disability claim
on the ground that the record does not sufficiently support the opinion, without first issuing a
subpoena if the claimant requested one. Id. at *3-5. Factors affecting this determination include

19

whether the missing records were voluminous; Kennedy, 2019 WL 988889, at *3-4; whether one
basis for the finding of no disability was a perceived inconsistency between the claimant’s
statements about her symptoms and the objective medical evidence; id.; whether the claimant and
the opining physician had a long-term, therapeutic relationship; Catherine P., 2024 WL 1509179,
at *2; and whether there was “ample time to obtain” the records before the hearing. Id. And in
determining whether an ALJ has exceeded his discretion, courts have also considered whether the
ALJ complied with the relevant provisions of HALLEX. See, e.g., Janet R. v. Comm’r of Soc.
Sec., No. 1:19-cv-1100 (CJS), 2021 WL 1054369, at *6 (W.D.N.Y. Mar. 19, 2021)
(acknowledging that HALLEX “may not have the force of law,” but stating that “the ALJ’s failure
to follow the Hallex’s direction in this instance reinforces the Court’s conclusion that she abused
her discretion by refusing to admit” a medical opinion); see also Marcano v. Berryhill, No. 17Civ.-4442 (KMK) (PED), 2018 WL 5619749, at *12 (S.D.N.Y. July 13, 2018) (“Although failure
to follow HALLEX procedures is not error per se, this HALLEX directive reinforces my
conclusion that the ALJ erred at step three.”).
In this case, these factors support the conclusion that the ALJ exceeded the limits of his
discretion when he declined to subpoena Dr. Buonopane’s treatment notes. To begin with, Dr.
Buonopane’s opinion – like Dr. Conshafter’s opinion in Thurman – would likely establish
disability if it were to be fully credited. She opined that the Plaintiff had “[n]o useful ability to
function” in the dimensions of “[g]et[ting] along with co-workers or peers without unduly
distracting them or exhibiting behavioral extremes” and “[i]nteract[ing] appropriately with the
general public.” (R. 634-35.) She also opined that the Plaintiff had “[n]o useful ability to function”
in the dimensions of “[p]erform[ing] at a consistent pace without an unreasonable number and
length of rest periods” and “[d]eal[ing] with normal work stress.” (Id.) These opinions, if credited,

20

might support a finding that the Plaintiff has a “marked” or “extreme” limitation in “interact[ing]
with others” and “concentrat[ing], persist[ing], or maintain[ing] pace” – two of the four areas of
mental functioning in “Paragraph B” of Listings 12.04 and 12.06. 7
This case is also like Thurman in that the ALJ effectively held the lack of treatment notes
against the Plaintiff. In Thurman, the ALJ “used that gap to Thurman’s detriment” when she
denied his disability claim in part because of a lack of “detailed explanations,” “clinical findings,”
or “evidence to support the basis of” the significant limitations claimed in the Conshafter opinion.

7

If a claimant’s impairment meets or medically equals the severity of an impairment listed
in the Listing of Impairments, she is “presumptively disabled.” Borgos-Hansen v. Colvin, 109 F.
Supp. 3d 509, 512 (D. Conn. 2015). Listing 12.04 concerns “depressive, bipolar and related
disorders,” and Listing 12.06 concerns “anxiety and obsessive-compulsive disorders.” Both
listings are expressed in three paragraphs, denominated “A,” “B,” and “C,” and both require the
claimant to satisfy Paragraph A and either Paragraph B or C.
In this case, the ALJ did not hold that the Plaintiff failed to satisfy Paragraph A of either
listing (see R. 20), nor could he reasonably have done so on the record before him. Paragraph A
of Listing 12.04 is satisfied when there is medical documentation of “depressive disorder,
characterized by five or more of the following: depressed mood, diminished interest in almost all
activities, appetite disturbance with change in weight, sleep disturbance, observable psychomotor
agitation or retardation, decreased energy, feelings of guilt or worthlessness, difficulty
concentrating or thinking, or thoughts of death or suicide.” Here, all these factors except
“psychomotor agitation or retardation” and “thoughts of death or suicide” are documented in the
record. (See, e.g., R. 49 (medical note documenting depressed mood); R. 126 (notation by Dr.
Leveille that “clt no longer engages in social activities”); R. 54 (medical record indicating
“[w]eight has increased”); R. 59-60 (medical record listing “psychophysiologic insomnia” among
Plaintiff’s “active problems”); etc.). Paragraph A of Listing 12.06 is satisfied when there is
medical documentation of “anxiety disorder, characterized by three or more of the following:
restlessness, easily fatigued, difficulty concentrating, irritability, muscle tension, or sleep
disturbance.” All but muscle tension are documented in this case. (See, e.g., R. 65 (medical record
documenting that Plaintiff reported “fatigue in daytime”); R. 60 (“insomnia”), etc.).
In both Listing 12.04 and Listing 12.06, Paragraph B is satisfied if the claimant has an
“extreme limitation of one, or marked limitation of two, of the following areas of mental
functioning: understand, remember, or apply information; interact with others; concentrate,
persist, or maintain pace; [and] adapt or manage oneself.” Because the Plaintiff satisfied Paragraph
A, a medical opinion that she has “no useful ability to function” in two Paragraph B areas might,
if credited, establish satisfaction of either Listing and render the Plaintiff “presumptively
disabled.”
21

Thurman, 2018 WL 4940726, at *4. The same thing essentially happened here. The ALJ declined
to credit Dr. Buonopane’s opinion in part because it was “not well-supported by her generally
unremarkable progress notes,” but he failed to account for the fact that he had only three of perhaps
twenty-four such notes. (R. 620) (statement of Dr. Buonopane that she saw the Plaintiff an
”average [of two times per] month or more” over a one-year period).
The remaining factors likewise support a determination that the ALJ exceeded the
boundaries of his discretion. Here, as in Kennedy, the missing records might have documented
more than eighty percent of Dr. Buonopane’s interactions with the Plaintiff, and they were
therefore potentially voluminous. (Id.) Here, as in Catherine P., the ALJ based his decision in
part on a perceived inconsistency between the Plaintiff’s statements about her symptoms and the
objective evidence. (R. 22-23) (“[T]he claimant’s statements concerning the intensity, persistence
and limiting effects of [her] symptoms are not entirely consistent with the medical evidence and
other evidence in the record[.]”). And here, as in Catherine P., the SSA had “ample time” to gather
the records between the reconsideration decision and the hearing. (See R. 144 (reconsideration
decision dated June 16, 2021); R. 104 (hearing transcript, documenting that hearing was held over
seven months later).) While the Plaintiff’s therapeutic relationship with Dr. Buonopane was not
as lengthy as the relationship in Catherine P., neither was it a one-time examination like Dr.
Preston’s. Moreover, the ALJ failed to explain his decision not to issue a subpoena (see R. 1628), even though HALLEX directed him to. HALLEX I-2-5-78 (stating that the ALJ “must notify
the claimant of the denial, either in writing or on the record at the hearing”). 8

8

To be sure, the Plaintiff’s attorney likewise did not fully comply with the requirements
governing the issuance of subpoenas. When a party asks an ALJ to issue a subpoena, 20 C.F.R. §
404.950(d)(2) obliges her not only to make the request “at least 10 business days before the hearing
date,” but also to “state the important facts that the . . . document is expected to prove; and indicate
why these facts could not be proven without issuing a subpoena.” In this case, the Plaintiff’s
22

The Commissioner argues that the Court should nevertheless affirm because the ALJ “had
sufficient evidence to reach Plaintiff’s RFC even without” the missing records. (Def.’s Memo., at
28.) His argument has two principal elements. First, he suggests that Dr. Buonopane was not an
especially important player in the Plaintiff’s treatment regime, and that obtaining her treatment
notes was therefore not essential to the disability determination.

(Id.) (characterizing Dr.

Buonopane as only “a single provider” who treated the Plaintiff for “less than one year, of which
only four months” preceded the date last insured). Second, he argues that the Plaintiff’s mental
RFC could be properly ascertained from the “notes from the short counseling sessions Plaintiff
attempted[;]” the records from her visits with her primary care physician, “during which [her]
psychological and other impairments were thoroughly discussed[;]” and the report from Dr.
Preston’s one-time video examination. (Id.)
The Court disagrees with both elements of this argument. With respect to the first, the
record is clear that Dr. Buonopane was no bit player in the Plaintiff’s treatment regime. She was
the only psychiatrist who met with the Plaintiff more than twice. (See R. 329-33 (medical records
evidencing that Plaintiff saw Dr. Shah only twice); R. 620 (opinion stating that Dr. Buonopane
saw the Plaintiff on “average [two times a] month or more” for a year, suggesting at least twentyfour visits); R. 493 (stating that Dr. Khan is an internist rather than a psychiatrist)); cf. also 20
C.F.R. § 404.1520c(c)(4) (stating that “[t]he medical opinion . . . of a medical source who has
received advanced education and training to become a specialist may be more persuasive about
medical issues related to his or her area of specialty than the medical opinion . . . of a medical

attorney made her request ten business days in advance of the hearing, but she did not include all
the information required by the regulation. (See R. 313-15.) Had the ALJ cited these failings in a
written explanation of his decision not to issue a subpoena, this factor might therefore stand on a
different footing – but he did not.
23

source who is not a specialist in the relevant area of specialty”). Moreover, she was the only
physician who diagnosed the Plaintiff with psychosis.

(Compare R. 620 (opinion of Dr.

Buonopane, diagnosing the Plaintiff with “major depression with psychosis”) with R. 329 (report
of Dr. Shah, diagnosing only a panic disorder) and R. 488 (report of Dr. Khan, diagnosing the
Plaintiff with a “[c]urrent severe episode of major depressive disorder without psychotic
features”). And so far as the Court’s review discloses, Dr. Buonopane was the only physician who
prescribed antipsychotic medication. (R. 461) (prescribing Seroquel). Far from being a bit player,
Dr. Buonopane was a psychiatric specialist who saw the plaintiff twice a month for a year and
claimed to have observed a significant, potentially disabling condition that no other treating
physician observed.
With respect to the second element of the argument, the Court disagrees that the primary
care and other records provided a sufficient basis for the ALJ’s RFC determination.

The

Commissioner argues that the Plaintiff’s psychological impairments “were thoroughly discussed”
in Dr. Thompson’s and Dr. Khan’s reports, but tellingly he provides no pinpoint citations. (Def.’s
Memo., at 28) (citing the entirety of a 122-page exhibit). Generally, the “psychiatric” portion of
these two physicians’ examination reports contained only a single line of text, and it would be a
stretch to call them “thorough.” (See, e.g., R. 419) (one-line report stating that the Plaintiff “has a
normal mood and affect,” and “[h]er behavior is normal”). More importantly, however, the
Commissioner’s argument misses a key legal point: courts analyze whether the ALJ’s decision
was supported by substantial evidence only after first assuring themselves that the record was fully
developed. Trasielyn A., 2022 WL 4129343, at *5 (“Whether an ALJ has met her duty to develop
the record is a threshold question that must be addressed before the court can consider whether the
Commissioner’s final decision was supported by substantial evidence.”); Robles, 2020 WL

24

5405877, at *3 (“An analysis of the decision’s congruence with applicable law typically comes
first, because even if the Commissioner’s decision is supported by substantial evidence, legal error
alone can be enough to overturn the ALJ’s decision.”) (citation, quotation marks, and brackets
omitted).
The Commissioner also argues that the Plaintiff has not shown the missing records to be
material (Def.’s Memo., at 29), but this argument is similarly unpersuasive. It is of course wellestablished that, when a claimant cites missing records as a basis for remand, she must ordinarily
show that those records could have affected the result. E.g., Lena v. Astrue, No. 3:10-cv-893, 2012
WL 171305, at *9 (D. Conn. Jan. 20, 2012) (affirming ALJ’s decision in part because the claimant
“made no showing that the missing pages are material or that their absence undermined the result”).
But a claimant can meet that burden by showing that the missing records were “not cumulative of
other evidence[;]” were “likely material to the ALJ’s conclusion” respecting key merits issues such
as the satisfaction of a Listing; and “also . . . material to the ALJ’s findings as to the weight of
medical opinions.” Jessica D. v. Kijakazi, No. 3:23-cv-605, slip op. at 16-20 (D. Conn. Feb. 22,
2024), report and recommendation adopted, slip op. (D. Conn. Mar. 8, 2024). In this case, Dr.
Buonopane’s treatment notes would be the only significant and contemporaneous evidence from
a psychiatrist during the critical period immediately before the date last insured – because Dr.
Khan saw the Plaintiff only twice during that period and made only brief notes of those visits (R.
54, 65), and because the Plaintiff’s other mental health providers were social workers. (See R.
708, 464-67.) The notes would therefore not be “cumulative of other evidence.” Jessica D., slip
op. at 18. Moreover, the missing records would likely be material to the question of whether the
Plaintiff satisfied a Listing, for the reasons discussed above. And they would also likely affect the
analysis of the weight to be given to the Buonopane opinion, because as the ALJ acknowledged,

25

that analysis is informed by the opinion’s consistency with the opining provider’s
contemporaneous treatment notes. (R. 26.)
The cases cited by the Commissioner in support of his lack-of-materiality argument are not
to the contrary. In Morris v. Berryhill, a Dr. Gomez initially opined that the claimant had “no
limitation in mental function,” but ten months later he claimed to observe “moderate[]” limitations
in “most areas of mental functioning.” 721 F. App’x 25, 26 (2d Cir. 2018) (summary order). The
ALJ discounted the second opinion, and on appeal, the claimant argued that he should not have
done so without first obtaining three of Dr. Gomez’s treatment notes. Id. at 26-27. The Second
Circuit rejected her claim, but it did so for several reasons that do not apply here. To begin with,
the Court of Appeals observed “no evidence that the alleged appointments were held or that the
corresponding records exist,” id. at 28, but here, the record provides reasons to believe that as
many as twenty-one treatment notes are missing. (R. 620 (opinion stating that Dr. Buonopane saw
the Plaintiff an “[a]verage [of two times per] month or more” over a one-year period); R. 463
(indicating that only three treatment notes were in the record).) Second, the Morris record
contained abundant evidence from Dr. Gomez himself and from other physicians covering the
period during which the claimant claimed to have been deteriorating, Morris, 721 F. App’x at 28,
but in this case, Dr. Buonopane’s treatment notes would be essentially the only psychiatrist
evidence during the period in which the Plaintiff’s condition allegedly descended into psychosis.
Third and relatedly, the claimant in Morris came forward with no reason to suppose that the
missing records would document “a serious and critical medical event that could materially change
the weight of the evidence on the disability determination,” Morris, 721 F. App’x at 28, but in this
case, the missing records would likely document whatever events caused Dr. Buonopane to
diagnose a psychotic condition.

26

The Commissioner also argues that the ALJ’s decision should be affirmed because the
Plaintiff “could have taken further steps to obtain this evidence” herself (Def.’s Memo., at 27), but
the Court disagrees with this claim as well. The Commissioner cites two cases in support of this
proposition (id. at 30), but both are distinguishable. In Curley v. Commissioner of Social Security,
the ALJ opened the hearing by asking the claimant’s counsel whether the record was missing
anything, and counsel “did not state that he had any . . . records that needed to be obtained.” 808
F. App’x 41, 44 (2d Cir. 2020) (summary order). And in Bushey v. Colvin, the claimant’s attorney
made “insufficient efforts” to obtain the missing records, and on appeal she was unable to “point[]
to any evidence . . . that was not included in the record but could have influenced the
Commissioner’s decision.” 607 F. App’x 114, 115 (2d Cir. 2015 (summary order). In this case,
by contrast, the ALJ did not ask the Plaintiff’s counsel whether the record was complete (R. 10607, 122-23); if he had, counsel’s answer clearly would have been “no” (see R. 327); and counsel
did make efforts to obtain the records herself before the hearing. (R. 312-14.) Moreover, the
records could have influenced the Commissioner’s decision. As noted above, Dr. Buonopane’s
opinion likely would have supported disability if it had been credited, but the ALJ did not credit it
in part because he regarded the partial progress notes as “generally unremarkable.” (R. 26.)
Finally, the Commissioner argues that the ALJ discharged his duties by keeping the record
open, but this claim is unpersuasive as well. The Commissioner cites Jordan v. Commissioner of
Social Security (Def.’s Memo., at 32), but in that case the claimant’s counsel “did not request the
ALJ’s assistance” in obtaining the missing documents, and after the hearing he contacted the SSA
and confirmed that he had nothing to add to the record. 142 F. App’x 542, 543 (2d Cir. 2005)
(summary order). Here, by contrast, the Plaintiff’s counsel did ask the ALJ for help (R. 312-14),
and she did not tell the SSA that the record was complete. (Cf. R. 327.) The Commissioner also

27

cites Lesanti v. Commissioner of Social Security (Def.’s Memo., at 32), but in that case the claimant
had not asked the ALJ to issue a subpoena, and on appeal to the district court she made no plausible
argument that the missing records would have affected the result. 436 F. Supp. 3d 639, 649-50
(W.D.N.Y. 2020). That is not the case here.
The Court wishes to be clear that the decision whether to issue a subpoena is within the
ALJ’s discretion, and that it will be a rare case indeed in which the boundaries of that discretion
are exceeded. But an ALJ traverses those boundaries when (1) the record contains a treating
physician’s opinion that would likely confirm disability if credited; (2) the record does not contain
the opining physician’s progress notes from the visits in which the bases for important diagnoses
(e.g., psychosis) would have been documented; (3) one basis for discrediting the opinion was a
perceived inconsistency with the partial progress notes in the record; (4) one basis for the finding
of no disability was a perceived inconsistency between the claimant’s statements about her
symptoms and the objective medical evidence; (5) the claimant and the opining physician had a
therapeutic relationship of meaningful duration, and the missing records were potentially
voluminous; (6) the opining physician was the only physician to observe significant and potentially
disabling health conditions; (7) the claimant asked the ALJ to subpoena the missing records; and
(8) the ALJ did not issue the subpoena, and did not explain his reasons for failing to do so. All
eight considerations apply in this case, and the Plaintiff is therefore entitled to remand.
IV.

CONCLUSION
When a district court concludes that an ALJ failed in his duty to develop a full record, a

plaintiff’s additional arguments ordinarily do not need to be addressed. E.g., Mungin v. Saul, No.
3:19-cv-233 (RMS), 2020 WL 549089, at *10 (D. Conn. Feb. 4, 2020) (“The Court declines to
address the plaintiff’s remaining arguments because upon remand and after a de novo hearing, [the

28

ALJ] shall review this matter in its entirety.”) (internal quotations omitted) (citing Faussett v. Saul,
2020 WL 57537, at *5 ); see also Delgado v. Berryhill, No. 3:17-cv-54 (JCH), 2018 WL 1316198,
at *19 (D. Conn. Mar. 14, 2019) (holding that because the case is “already being remanded for
other reasons,” and “because [the plaintiff’s] RFC may change after full development of the
record,” the ALJ is likely to need to reconsider the other steps in the five-step analysis)). On
remand, the ALJ should address the additional claims of error not discussed by the Court. Pacheco
v. Saul, No. 3:19-cv-00987 (WIG), 2020 WL 113702, at *8 (D. Conn. Jan. 10, 2020) (“On remand,
the Commissioner will address the other claims of error not discussed herein.”); see also Moreau
v. Berryhill, 2018 WL 1316197, at *4 (“Because the court finds that the ALJ failed to develop the
record, it also suggests that the ALJ revisit the other issues on remand, without finding it necessary
to reach whether such arguments would themselves constitute legal error justifying remand on
their own.”).
For the reasons stated above, the Plaintiff’s Motion for Order (ECF No. 17) is GRANTED
and the Defendant’s Motion for an Order Affirming the Decision of the Commissioner (ECF No.
21) is DENIED. The Commissioner’s decision is vacated and the case is remanded for further
administrative proceedings consistent with this opinion. In particular, the Commissioner is
directed to subpoena the records from Dr. Buonopane, to evaluate those records while determining
whether the Plaintiff’s impairments render her disabled, and to consider the other claims of error
that the Plaintiff raised in her brief before this Court.
This is not a recommended ruling. The parties consented to the jurisdiction of the
undersigned Magistrate Judge, who may therefore direct the entry of a judgment of the district
court in accordance with the Federal Rules of Civil Procedure. (ECF No. 10.) Appeals may be
made directly to the appropriate United States Court of Appeals. See 28 U.S.C. § 636(c)(3); Fed.

29

R. Civ. P 73(c). The Clerk of the Court is respectfully directed to enter judgment in favor of the
Plaintiff, and to close the case.
So ordered at Hartford, Connecticut this 13th day of May, 2024.

/s/ Thomas O. Farrish
Hon. Thomas O. Farrish
United States Magistrate Judge

30