Colucci v. Berryhill

Filing 27

ORDER granting 20 Motion for Judgment on the Pleadings; denying 22 Motion for Judgment on the Pleadings. For the reasons stated in the accompanying Memorandum and Order, the Commissioner's finding that plaintiff was not disabled as define d by the SSA was not supported by substantial evidence in the record because the ALJ failed to fulfill her duty to develop the record. Accordingly, plaintiff's motion for judgment on the pleadings is GRANTED, defendant's cross-motion for judgment on the pleadings is DENIED, and the case is REMANDED for further proceedings consistent with this Memorandum and Order. The Clerk of Court is respectfully directed to enter judgment in favor of plaintiff. Ordered by Judge Kiyo A. Matsumoto on 3/31/2021. (Urquiola, Rebecca)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------X
LEAH COLUCCI,
Plaintiff,

MEMORANDUM AND ORDER

v.

19-cv-01412 (KAM)

ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
---------------------------------X

KIYO A. MATSUMOTO, United States District Judge:
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Leah
Colucci (“plaintiff”) appeals the final decision of the Acting
Commissioner of Social Security (“defendant”), which found that
plaintiff was not eligible for disability insurance benefits
(“DIB”) under Title II of the Social Security Act (“the Act”)
and that plaintiff was not eligible for Supplemental Security
Income (“SSI”) disability benefits under Title XVI of the Act,
on the basis that plaintiff is not disabled within the meaning
of the Act.

Plaintiff alleges that she is disabled under the

Act and is thus entitled to receive the aforementioned benefits.
Plaintiff is alleging disability since December 1, 2014.

(ECF

No. 25, Administrative Transcript (“Tr.”) at 13.)
Presently before the court is plaintiff’s motion for
judgment on the pleadings,(ECF No. 21, Plaintiff’s Memorandum of
Law in Support of Plaintiff’s Motion for Judgment on the
1

Pleadings (“Pl. Mem.”)), defendant’s cross-motion for judgment
on the pleadings and in opposition to plaintiff’s motion for
judgment on the pleadings, (ECF No. 23, Defendant’s Memorandum
of Law in Support of Defendant’s Motion for Judgment on the
Pleadings and in Opposition to Plaintiff’s Motion for Judgment
on the Pleadings (“Def. Mem.”)), and plaintiff’s reply
memorandum of law in support of plaintiff’s motion for judgment
on the pleadings (ECF No. 24, (“Pl. Reply”).)

For the reasons

stated below, plaintiff’s motion is GRANTED, defendant’s motion
is DENIED, and the case is remanded for further proceedings
consistent with this Memorandum and Order.
BACKGROUND
The parties have submitted a joint stipulation of
facts detailing plaintiff’s medical history and the
administrative hearing testimony, which the court incorporates
by reference.

(See generally ECF No. 24-1, Joint Stipulation of

Facts (“Stip.”).)

On August 17, 2015 the plaintiff filed

applications for DIB and SSI Benefits.

(Tr. at 13.)

The

plaintiff claimed she was disabled as a result of her
alcoholism, paranoia, depression, anxiety, and bipolar disorder.
(Id. at 251.)

Ms. Colucci’s alleged disability onset date was

December 1, 2014.

(Id. at 13.)

Plaintiff’s application was

denied on November 30, 2015. (Id.)

2

On December 17, 2015 plaintiff filed a written request
for a hearing before an Administrative Law Judge (“ALJ”).
at 96.)

(Id.

On October 3, 2017, ALJ Dina R. Loewy held a video

hearing from Jersey City, during which plaintiff appeared in
Staten Island and was represented by an attorney.

(Id. at 13.)

Plaintiff and a vocational expert {“VE”} testified at the
hearing.

(Id. at 37.)

VE testified that plaintiff retained the

ability to perform work at all levels of exertion, with certain
limitations.

(Id. at 68-72.)

During the hearing, the ALJ

requested that plaintiff’s attorney produce plaintiff’s medical
records from Dr. Agnie, Dr. Greenspan, Dr. Gomez and Ms. Reuben
(plaintiff’s therapist at the time of the hearing) within 30
days.

(Tr. at 59, 74.)

The ALJ also preemptively requested

that plaintiff sign an 827 form 1 but the ALJ did not state that
she would obtain any records herself.

(Id. at 59-60.)

On October 23, 2017, plaintiff’s attorney provided the
ALJ with plaintiff’s medical records from Dr. Agnie and Ms.
Reuben.

(Id. at 338.)

Plaintiff’s attorney also advised the

ALJ that no further records were required for Dr. Greenspan, and
that plaintiff’s attorney was waiting to receive records from
Dr. Gomez.

(Id.)

The ALJ asked plaintiff to sign an 827 form “just so that [she could] have
it available”. (Id. at 60.)

1

3

In a decision dated January 31, 2018, the ALJ found
plaintiff was not disabled.

(Id. at 10.)

On March 26, 2018,

plaintiff appealed the ALJ’s decision to the Appeals Council.
(Id. at 217-24.)

On November 6, 2018, the Appeals Council

granted plaintiff’s request for a 25-day extension to provide
additional information before the Council acted on plaintiff’s
case.

(Id. at 6-7.)

On January 7, 2019, the Appeals Council

denied review of the ALJ’s decision, rendering the ALJ’s
decision the final decision of the Commissioner.

(Id. at 1-3.)

On March 12, 2019, plaintiff filed the instant action
in federal court.
(“Compl.”).)

(See generally ECF No. 1, Complaint

Plaintiff retained new counsel to represent her in

the instant action.

(Id.)

On March 13, 2019, this court issued

a scheduling order.

(ECF No. 5, Scheduling Order.)

Plaintiff

requested and was granted three requests for an extension of the
schedulings.

(ECF Nos. 9, 10, 11; Dkt. Orders dated 8/7/2019,

9/9/2019, 9/27/2019.)
Defendant also filed four motions for an extension of
time to file the Commissioner’s cross-motion.
15, 16.)

(ECF Nos. 13, 14,

The court granted the defendant’s motions for

extensions.

(Dkt. Orders dated 11/8/2019, 12/13/2019,

1/14/2020, 2/25/2020.)
On May 4, 2020, plaintiff filed a motion for extension
of time to file her reply memorandum.
4

(ECF No. 18, Letter

Motion for Extension of Time to File.)
court granted plaintiff’s motion.

On May 5, 2020, the

(Dkt. Order dated 5/5/2020.)

On May 27, 2020, plaintiff filed her notice of motion
and memorandum of law in support of plaintiff’s motion for
judgment on the pleadings.

(ECF Nos. 20 and 21.)

On that same

day, defendant filed his cross-motion and memorandum of law in
support of defendant’s cross-motion for judgment on the
pleadings and in opposition of plaintiff’s motion for judgment
on the pleadings.

(ECF Nos. 22 and 23.)

Later that same day,

plaintiff filed her reply memorandum of law.

(ECF No. 24.)

LEGAL STANDARD
Unsuccessful claimants for disability benefits under
the Act may bring an action in federal district court seeking
judicial review of the Commissioner’s denial of their benefits
“within sixty days after the mailing . . . of notice of such
decision or within such further time as the Commissioner of
Social Security may allow.”

42 U.S.C. §§ 405(g), 1383(c)(3).

A

district court, reviewing the final determination of the
Commissioner, must determine whether the correct legal standards
were applied and whether substantial evidence supports the
decision.

See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.

1998).
A district court may set aside the Commissioner’s
decision only if the factual findings are not supported by
5

substantial evidence or if the decision is based on legal error.
Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).
“Substantial evidence is more than a mere scintilla,” and must
be relevant evidence that a “reasonable mind might accept as
adequate to support a conclusion.”

Halloran v. Barnhart, 362

F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 420
U.S. 389, 401 (1971)) (internal quotation marks omitted).

If

there is substantial evidence in the record to support the
Commissioner’s factual findings, those findings must be upheld.
42 U.S.C. § 405(g).

Inquiry into legal error “requires the

court to ask whether ‘the claimant has had a full hearing under
the [Commissioner’s] regulations and in accordance with the
beneficent purposes of the [Social Security] Act.’”
Astrue, 569 F.3d 108, 112 (2d Cir. 2009).

Moran v.

The reviewing court

does not have the authority to conduct a de novo review, and may
not substitute its own judgment for that of the ALJ, even when
it might have justifiably reached a different result.

Cage v.

Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012).
To receive disability benefits, claimants must be
“disabled” within the meaning of the Act.
423(a), (d).

See 42 U.S.C. §§

A claimant is disabled under the Act when she is

unable to “engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or
6

can be expected to last for a continuous period of not less than
12 months.”

42 U.S.C. § 423(d)(1)(A); Shaw v. Chater, 221 F.3d

126, 131–32 (2d Cir. 2000).

The impairment must be of “such

severity” that the claimant is unable to do his previous work or
engage in any other kind of substantial gainful work.
§ 423(d)(2)(A).

42 U.S.C.

“The Commissioner must consider the following

in determining a claimant’s entitlement to benefits: ‘(1) the
objective medical facts [and clinical findings]; (2) diagnoses
or medical opinions based on such facts; (3) subjective evidence
of pain or disability . . . ; and (4) the claimant’s educational
background, age, and work experience.’”

Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999)).
Pursuant to regulations promulgated by the
Commissioner, a five-step sequential evaluation process is used
to determine whether the claimant’s condition meets the Act’s
definition of disability.

See 20 C.F.R. § 404.1520.

This

process is essentially as follows:
[I]f the Commissioner determines (1) that the claimant
is not working, (2) that he has a ‘severe impairment,’
(3) that the impairment is not one [listed in Appendix
1 of the regulations] that conclusively requires a
determination of disability, and (4) that the claimant
is not capable of continuing in his prior type of work,
the Commissioner must find him disabled if (5) there is
not another type of work the claimant can do.

7

Burgess, 537 F.3d at 120 (internal quotation marks and citation
omitted); see also 20 C.F.R. § 404.152(a)(4).
During this five-step process, the Commissioner must
consider whether “the combined effect of any such impairment . .
. would be of sufficient severity to establish eligibility for
Social Security benefits.”

20 C.F.R. § 404.1523.

Further, if

the Commissioner does find a combination of impairments, the
combined impact of the impairments, including those that are not
severe (as defined by the regulations), will be considered in
the determination process.

20 C.F.R. § 416.945(a)(2).

At steps

one through four of the sequential five-step framework, the
claimant bears the “general burden of proving . . . disability.”
Burgess, 537 F.3d at 128.

At step five, the burden shifts from

the claimant to the Commissioner, requiring that the
Commissioner show that, in light of the claimant’s RFC, age,
education, and work experience, the claimant is “able to engage
in gainful employment within the national economy.”

Sobolewski

v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y. 1997).
Lastly, federal regulations explicitly authorize a
court, when reviewing decisions of the SSA, to order further
proceedings when appropriate.

“The court shall have power to

enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
8

cause for a rehearing.”

42 U.S.C. § 405(g).

Remand is

warranted where “there are gaps in the administrative record or
the ALJ has applied an improper legal standard.”

Rosa v.

Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratts v.
Chater, 94 F.3d 34, 39 (2d Cir. 1996) (internal quotation marks
omitted).

Remand is particularly appropriate where further

findings or explanation will clarify the rationale for the ALJ’s
decision.

Pratts, 94 F.3d at 39.

However, if the record before

the court provides “persuasive proof of disability and a remand
for further evidentiary proceedings would serve no purpose,” the
court may reverse and remand solely for the calculation and
payment of benefits.

See, e.g., Parker v. Harris, 626 F.2d 225,

235 (2d Cir. 1980); Kane v. Astrue, 942 F. Supp. 2d 301, 314
(E.D.N.Y. 2013).
DISCUSSION
I. The ALJ’s Disability Determination
Using the five-step sequential process to determine
whether a claimant is disabled as mandated by the regulations,
the ALJ determined at step one that the plaintiff had not
engaged in substantial gainful activity since December 1, 2014,
the alleged onset date of her disabilities.

(Tr. at 15.)

At step two, the ALJ found that plaintiff suffered
from severe impairments of a history of alcohol abuse, seizure
9

disorder, bipolar disorder, panic disorder, anxiety disorder,
and schizoaffective disorder, bipolar type.

(Id.)

The ALJ

found that plaintiff’s medically determinable impairments
significantly limited claimant’s ability to perform basic work
activities.

(Id.)

At step three, the ALJ determined that plaintiff did
not have an impairment or combination of impairments that meets
or medically equals Medical Listing 11.02 (epilepsy), Medical
Listing 12.03 (schizophrenic, paranoid, and other psychotic
disorders), or Medical Listing 12.04 (depressive, bipolar and
related disorders).

(Id. at 16; 20 C.F.R. §§ 404.1520(d),

404.1525, 404.1526, 416.920(d), 416.925, or 416.926.)
Specifically, the criteria set forth in paragraph B of Medical
Listings 12.03 and 12.04 were not satisfied because the ALJ
found that plaintiff had moderate (not marked) limitations in
understanding, remembering, or applying information; interacting
with others; concentrating, persisting, or maintaining pace; or
adapting or managing themselves.

(Id. at 16-17.)

In making

this determination, the ALJ referenced, inter alia, plaintiff’s
consultative examination with Dr. Quarles on June 9,
2017(Exhibit 21F) and plaintiff’s mental status examinations
from Richmond University Medical Center (“RUMC”) dated 4/11/2017
to 6/8/2017 (Exhibit 20F) and 8/7/2017 (Exhibit 22F).
16-17.)

(Id. at

Additionally, the ALJ found that the criteria set forth
10

in paragraph C of Medical Listings 12.03 and 12.04 were not
satisfied based on the evidence in the record. (Id. at 17.)
At step four, the ALJ found that plaintiff had the
Residual Functional Capacity (“RFC”) to perform a full range of
work at all exertional levels but with the following
nonexertional limitations: (1) the need to avoid all exposure to
hazardous machinery, unprotected heights, and operational
control of moving machinery; (2) the ability to perform only
simple unskilled work (as defined in 20 C.F.R. 404.1568(a)); (3)
the ability to perform only low stress work, defined as having
only occasional decision making and changes in the work setting;
(4) the inability to have a production rate requirement or fast
paced production requirements; (5) the inability to have any
interaction with the public including by telephone; and (6) the
ability to have only occasional interaction with coworkers or
supervisors.

(Id. at 17.)

The ALJ concluded that although plaintiff’s medically
determinable impairments could reasonably be expected to cause
the alleged symptoms, plaintiff’s statements concerning the
intensity, persistence, and limiting effects of these symptoms
were not entirely consistent with the medical evidence and other
evidence in the record.

(Id. at 18.)

The ALJ compared

plaintiff’s testimony to plaintiff’s medical records and
determined that plaintiff generally functions well when not
11

using alcohol.

(Id. at 20.)

The ALJ concluded that plaintiff

was unable to perform any past relevant work as a receptionist,
which consists of semiskilled sedentary work.

(Id. at 21.)

At step five, the ALJ found that, based on plaintiff’s
age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in
the national economy that plaintiff can perform (20 C.F.R.
404.1569, 404.1569(a), 416.969, and 416.969(a)).

(Id.)

The

vocational expert testified that plaintiff would be able to
perform the requirements of representative occupations such as
hand packager, store laborer, and laundry worker.

(Id. at 22.)

Thus, the ALJ concluded that plaintiff was not disabled within
the meaning of the Act, as defined in 20 C.F.R. § 404.1520(f)
and 20 C.F.R. § 416.920(f), since December 1, 2014, through the
date of the hearing.

(Id.)

II. Development of the Record
Plaintiff argues that the ALJ failed to fulfill her
duty to develop the record because the ALJ made no efforts to
obtain treatment records from plaintiff’s treating psychiatrist
Dr. Gomez and therapist Michele Rubin at RUMC.

(Pl. Mem. at 1.)

The ALJ requested these records during the administrative
hearing, but because neither plaintiff’s attorney nor the ALJ
obtained them, they were never added to the record.

Plaintiff

argues that because the ALJ did not independently obtain the
12

records at issue, the ALJ failed to develop the administrative
record and thus remand for a new hearing is proper.

(Pl. Memo.

at 20.)
In response, the Commissioner argues that the ALJ
properly developed the record after plaintiff submitted
additional medical records from RUMC and from Ms. Rubin.
Mem. at 9-11.)

(Def.

The Commissioner also notes that the ALJ relied

on a complete medical history, without need to consider medical
source statements, in determining that plaintiff was not
disabled.

(Id. at 12.)
Generally, even if a plaintiff is represented, an ALJ

has an “‘affirmative duty to develop the administrative
record.’”

Anderson v. Astrue, 07–CV–4969, 2009 WL 2824584, at

*12 (E.D.N.Y. Aug.28, 2009) (quoting Tejada v. Apfel, 167 F.3d
770, 774 (2d Cir.1999)).

Pursuant to 20 C.F.R. §§ 404.1512(e)

and 416.912(e), when the evidence received from a claimant's
treating physician, psychologist, or other medical source is
inadequate to determine whether the claimant is disabled, the
ALJ has an obligation to seek additional information to
supplement the record.

Mantovani v. Astrue, No. 09–CV–3957,

2011 WL 1304148, at *3 (E.D.N.Y. Mar.31, 2011).

The ALJ bears

this duty whether or not a claimant appears with representation.
Batista v. Banhart, 326 F.Supp.2d 345, 353 (E.D.N.Y. 2004).

The

duty does not arise, however, where there are no obvious gaps in
13

the administrative record and where the ALJ already possesses a
“complete medical history.”

Rosa v. Callahan, 168 F.3d 72, 79

n. 5 (2d Cir. 1999).
Nevertheless, the ALJ must seek additional evidence or
clarification when a report from a medical source contains a
conflict or ambiguity, lacks necessary information, or is not
based on medically acceptable clinical and laboratory diagnostic
techniques.

20 C.F.R. §§ 404.1512(e), 416.912(e).

In

assembling a complete record, the SSA must “make every
reasonable effort” to “get medical reports from [plaintiff's]
medical sources.”

20 C.F.R. §§ 404.1512(d), 416.912(d).

“Every

reasonable effort” means making “an initial request for evidence
from [plaintiff's] medical source[s],” and, if no response has
been received, “one follow-up request.”

20 C.F.R. §§

404.1512(d)(1), 416. 912(d)(1).
Although the Administrative Record is voluminous and
contains evaluations from a multiple doctors and records from
RUMC, the record does not contain records from plaintiff’s
treating psychiatrist Dr. Gomez and therapist Ms. Rubin.

The

ALJ was on notice that plaintiff received regular treatment from
Dr. Gomez and Ms. Rubin for about a year prior to the October 3,
2017 hearing.

(Tr. at 48-49.)

Indeed, during Plaintiff's

hearing, the ALJ noted that, “I don’t have records for Dr. Gomez
and [Ms.] Reuben. [Plaintiff’s] been going there since January,
14

I don’t have those records.

(Tr. at 57.)

At the hearing, the

ALJ specifically referenced Exhibit 20F, stating, “Exhibit 20F
is a letter from [Ms. Rubin], and it’s got no treatment
records.”

(Tr. at 55.) 1
After the hearing was concluded, plaintiff’s attorney

did provide the ALJ with additional medical records.
338.)

(Id. at

On October 23, 2017, plaintiff’s attorney re-submitted

portions of Exhibit 20F but included only the aforementioned
letter from Ms. Rubin, as well as a list of plaintiff’s
medications dated 10/6/17.

(Id. at 338, 947-48.)

When re-submitting these records, plaintiff’s attorney
also represented to the ALJ that the records from Dr. Gomez were
forthcoming, but the records were never submitted.
338.)

(Id. at

The records from Dr. Gomez, plaintiff’s treating

psychiatrist at the time of the hearing, undoubtedly are
relevant to the ALJ’s determination regarding plaintiff’s
ability to work.

The references to Dr. Gomez by plaintiff

during her testimony, as well as her medical records, triggered
an obligation for the ALJ to further develop the record.

See

Umansky v. Apfel, 7 F. App'x 124, 127 (2d Cir. 2001) (finding
After reviewing the Administrative Transcript and Exhibit 20F, it appears as
though the letter referenced by the ALJ is actually just the first page of a
23-page document that contains medical records which should have been
considered. The hearing transcript, the ALJ’s decision, and plaintiff’s memo
only reference the 1-page letter in Exhibit 20F. On remand, the ALJ should
specifically review the entirety of Exhibit 20F in addition to the 1-page
letter and discuss the records in the context of the disability
determination.

1

15

that “the ALJ did not adequately fulfill his obligation to
develop the record” where other medical records regarding RFC
were available); Corona v. Berryhill, No. 15-CV-07117, 2017 WL
1133341, at *16 (E.D.N.Y. Mar. 24, 2017) (finding ALJ did not
satisfy duty to develop record where ALJ took no action to
ensure record was complete beyond discussing missing treatment
notes with counsel on record and leaving record open for
submission of records); Corporan v. Comm'r of Soc. Sec., No. 12CV-06704, 2015 WL 321832, at *21 (S.D.N.Y. Jan. 23, 2015) (“The
ALJ did not fulfill his duty to develop [Plaintiff's] record.
First, the ALJ did not attempt to procure the pertinent medical
records that very likely exist but are missing from the
administrative record.”).

Yet, there is no evidence that the

ALJ attempted to obtain any records from Dr. Gomez after
specifically requesting them from plaintiff’s attorney during
the hearing.
The Commissioner contends that the ALJ fulfilled her
duty to develop the record because plaintiff’s attorney failed
to express any difficulty in obtaining records from Dr. Gomez
and should have requested the ALJ’s assistance in obtaining
these records.

(Def. Mem. at 10.)

The present case can be

distinguished from the cases the Commissioner uses to support
this conclusion.

(Id.)

Here, there is no evidence that the ALJ

sent a reminder to plaintiff’s attorney.
16

See Jordan v.

Commissioner of Social Security, 142 F. App’x 542, 543 (2d Cir.
2005).

Nor is there evidence that the ALJ made any attempts to

assist plaintiff’s attorney.

See Voyton v. Berryhill, 2019 WL

No. 6:17- CV-06858-MAT, 2019 WL 1283819, at *3 (W.D.N.Y. Mar.
20, 2019).

There is likewise no evidence that the ALJ contacted

the treating sources directly or otherwise made any reasonable
efforts to obtain the records.
The Commissioner also asserts that the ALJ had no duty
to obtain records that may not exist.

(Def. Mem. at 10.)

Here,

the ALJ was aware that plaintiff regularly received treatment
from Dr. Gomez and Ms. Rubin for about a year; thus, the medical
records from these sources certainly exist.
The Commissioner further contends that because the
record contains treatment reports from RUMC from 2017, the
record is consistent and sufficient to determine whether
plaintiff is disabled.

(Def. Mem. at 11.)

The treatment

reports from 2017, however, are inconsistent with plaintiff’s
testimony and with plaintiff’s consultative examination by Dr.
Quarles on June 9, 2017.

(Tr. at 20.)

In her decision, the ALJ

states that more weight was assigned to state agency medical
consultant Dr. Shapiro’s 2015 evaluation of plaintiff because it
was consistent with 2017 RUMC records, which indicated that
plaintiff generally functions well without alcohol.
20.)

The ALJ assigned “little weight” to plaintiff’s

(Tr. at

17

consultative examination by Dr. Quarles on June 9, 2017 because
it was inconsistent with the RUMC records.

(Id.)

Given these

inconsistencies, and without the treating source records from
Dr. Gomez and Ms. Rubin from 2017, the ALJ failed to fulfill her
duty to develop the record.
This case is remanded for the reasons provided above.
Moreover, the ALJ should have obtained medical source statements
from Dr. Gomez and Ms. Rubin to resolve inconsistencies or
insufficiencies in the record.

(Pl. Mem. at 23-25.)

Accordingly, the ALJ should consider these medical source
statements upon remand.

Specifically, upon reviewing the

medical source statements from Dr. Gomez and Ms. Rubin, the ALJ
should consider the Burgess factors, such as the length,
frequency, nature or extent of plaintiff’s relationship with
both of these mental health professionals.

See Burgess v.

Astrue, 537 F.3d 117, 128 (2d Cir. 2008); Rasin v. Comm'r of
Soc. Sec., No. 18CV06605KAMLB, 2020 WL 3960516, at 14 (E.D.N.Y.
July 13, 2020).

When the ALJ considers the length of the

treatment relationship and frequency of the examination, she
should also take into account the “evidence supporting its
satisfaction” where the claimed impairments include:
“depression, bipolar disorder, panic disorder, and generalized
anxiety disorder,” as appears to be the case here.

18

Abate v.

Comm'r of Soc. Sec., No. 18-CV-2040 (JS), 2020 WL 2113322, at *1
(E.D.N.Y. May 4, 2020).
“[D]istrict courts within this Circuit have routinely
recognized that ALJs have an affirmative duty to request medical
source statements from a plaintiff's treating sources in order
to develop the record, regardless of whether a plaintiff's
medical record otherwise appears complete.”

Battaglia v.

Astute, No. 11–CV–2045 (BMC), 2012 WL 1940851, at *7 (E.D.N.Y.
May 25, 2012).

“[T]he ALJ bears an affirmative duty to seek out

more information from the treating physician and to develop the
administrative record accordingly.”

Lazo-Espinoza v. Astrue,

10-CV-2089 (DLI), 2012 WL 1031417, at *13 (E.D.N.Y. Mar. 27,
2012).
As the ALJ in the present case did not request a
medical source statement from Dr. Gomez or Ms. Rubin, who both
regularly treated plaintiff at the time of the hearing, the ALJ
reached a disability determination on an incomplete record.
CONCLUSION
The Commissioner's finding that plaintiff was not
disabled as defined by the SSA was not supported by substantial
evidence in the record because the ALJ failed to fulfill her duty
to develop the record. Accordingly, plaintiff’s motion for
judgment on the pleadings is GRANTED, defendant’s cross-motion
for judgment on the pleadings is DENIED, and the case is REMANDED
19

for further proceedings consistent with this Memorandum and
Order.

The Clerk of Court is respectfully directed to enter

judgment in favor of plaintiff.
SO ORDERED.
DATED: March 31, 2021
Brooklyn, New York

__________/s/_______________
HON. KIYO A. MATSUMOTO
United States District Judge

20