Bushansky v. Commissioner of Social Security

Filing 21

MEMORANDUM OPINION AND ORDER. This Court considered all of the arguments of the parties. To the extent not addressed above, the remaining arguments are either moot or without merit. For all the reasons explained above, the plaintiff's cross-moti on for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure is granted, and the Commissioner's motion is denied. The Commissioner's decision is reversed and this case is remanded for further administrativ e proceedings developing the record in accordance with this opinion. The Clerk is directed to enter judgment and to close this case. re: 11 MOTION for Judgment on the Pleadings filed by Sherry Bushansky, 14 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security. (Signed by Judge John G. Koeltl on 9/23/2014) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
SHERRY BUSHANSKY,
13 Civ. 2574 (JGK)
Plaintiff,
MEMORANDUM OPINION AND
ORDER

- against COMMISSIONER OF SOCIAL SECURITY
Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:

The plaintiff, Sherry Bushansky, seeks to reverse a final
decision of the defendant, the Commissioner of Social Security
(the “Commissioner”), finding the plaintiff was not entitled to
Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act (“Act”).

The plaintiff filed an application

for DIB on January 7, 2011, and alleges a disability onset date
of November 23, 2010.
2010.

Her date last insured was on December 31,

The plaintiff’s application was denied initially on April

2, 2011.

At the plaintiff’s request, a hearing was held before

an Administrative Law Judge (“ALJ”) on January 9, 2012 and on
January 24, 2012, the ALJ denied the plaintiff’s claim.

The

ALJ’s decision became the Commissioner’s final decision when the
Appeals Council declined review on March 7, 2013.
The parties filed cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure.

1

I.
The administrative record contains the following facts.
The plaintiff, born July 27, 1972, has a high school
education and training as a medical assistant.

(Tr. 92, 110.)

Over the past fifteen years, the plaintiff worked sporadically,
including as a receptionist, cashier, administrative assistant,
and medical assistant.

(Tr. 30–32, 110.)

She worked most

recently as a medical assistant, from March 2008 to June 2008.
(Tr. 110.)
On October 12, 2010, the plaintiff went to Good Samaritan
Hospital Medical Center, requesting doctors resupply her
Adderall, which she said was used to treat Chronic Fatigue
Syndrome, Epstein Barr Syndrome, Fibromyalgia, and Lyme Disease.
(Tr. 151.)

The plaintiff also stated she suffered from black

outs and from pain in her chest, right-ribs, and right leg.
(Tr. 151.)

X-rays on the plaintiff’s right ribs and right leg

did not reveal any abnormalities.

(Tr. 157–58.)

Medical

personnel found the plaintiff’s condition stable, provided her
with a prescription for Amphetamine Salt combination, and
released her with orders to follow-up with doctors at a
community health center.

(Tr. 159–160.)

On November 23, 2010 the plaintiff sought treatment at
South Oaks Hospital for depression symptoms.

(Tr. 161.)

Dr.

Kirin Kumar diagnosed the plaintiff with a non-specific mood
2

disorder and possible Major Depressive Disorder, and prescribed
Cymbalta and Adderall.

(Tr. 113, 164, 194.)

On December 2, 2010 the plaintiff began treatment at
Straight Path Medical with Drs. Pierre Collins and Octavian
Austriacu.

(Tr. 112, 251–52.)

The plaintiff returned to

Straight Path Medical on January 4, 2011.

(Tr. 172, 253.)

Treatment notes from that visit indicate that the plaintiff was
diagnosed with, among other things, ADHD and bipolar disorder.
(Tr. 172, 253.)
The plaintiff applied for DIB on January 7, 2011, alleging
a disability beginning on October 4, 2008.1

(Tr. 50, 92.)

On

January 31, 2011, the plaintiff sought treatment at the
Pederson-Krag Center, where she was evaluated by Marissa Sherov,
a licensed master of social work.

(Tr. 204–13.)

Sherov’s

report noted the plaintiff reported two prior instances of
suicidal ideation and had been diagnosed with Bipolar Disorder
by “multiple treatment providers.”

(Tr. 204, 206.)

Sherov also

noted that the plaintiff had been treated on one occasion by Dr.
Kumar at South Oaks Mental Hospital and on four occasions by a
private psychologist.

(Tr. 210.)

1

During her hearing before the ALJ, the plaintiff amended her
onset date to November 23, 2010. (Tr. 16.) Thus the period at
issue for determining disability is from the amended onset date,
November 23, 2010, to plaintiff’s last insured date, December
31, 2010. (Tr. 14, 16.)
3

In her report, Sherov indicated the plaintiff’s prominent
symptoms included: depressed mood, anxiety, irritability /
aggressiveness, decreased energy, change in appetite, and
insomnia (Tr. 212), and Sherov diagnosed the plaintiff with
Bipolar Disorder, borderline personality disorder,
hypothyroidism, Lyme disease, and anemia (Tr. 213).
On February 14, 2011, the plaintiff returned to Dr.
Austriacu, and reported having suffered chest pains and black
outs.

(Tr. 253.)

Dr. Austriacu diagnosed the plaintiff with,

among other things, ADD, depression, Bipolar Disorder, and
insomnia.

(Tr. 253.)

The plaintiff returned to Dr. Austriacu

again on March 16, 2011 and reported having suffered from
depression and fatigue.
Adderall.2

(Tr. 254.)

Dr. Austriacu prescribed

(Tr. 254.)

On September 15, 2011, psychologist Dr. Nicholas Massa
completed a medical source statement regarding the plaintiff’s
mental impairments and their effect on the plaintiff’s ability
to perform unskilled, semi-skilled, and skilled work.
48.)

(Tr. 243–

In the report, Dr. Massa indicated that he first treated

the plaintiff on June 24, 2011 and had seen the plaintiff once
each week for about ten weeks.

(Tr. 243.)

2

Dr. Massa also

Dr. Austriacu’s treatment notes also indicate he examined the
plaintiff on February 21, 2011 and April 22, 2011 for ailments
unrelated to the pending motions. (Tr. 254-55.) On March 25,
2011, Dr. Vito Rizzo treated the plaintiff for another condition
that is unrelated to the pending motions. (Tr. 216-17, 238.)
4

indicated, in the space on the form for identifying symptoms,
that the plaintiff suffered from, among other things, poor
memory, sleep disturbances, personality changes, mood
disturbances, intellectual ability losses, dependence on
medications, paranoia or inappropriate suspiciousness,
difficulty thinking and concentrating, suicidal ideation, social
withdrawal or isolation, decreased energy, manic syndrome,
intrusive recollections of a traumatic experience, and hostility
and irritability.

(Tr. 243.)

Dr. Massa determined that the plaintiff’s impairments were
consistent with her symptoms and functional limitations, and had
lasted or could be expected to last more than twelve months.
(Tr. 244–45.)

Dr. Massa also determined that the plaintiff’s

mental impairments resulted in moderate limitations on the
plaintiffs activities of daily living and ability to maintain
social functioning, and resulted in frequent deficiencies of
concentration, persistence, and pace that left her unable to
complete tasks in a timely manner.

(Tr. 245.)

He also found

continual episodes of deterioration or decompensation in work or
work-like settings, which caused her to either withdraw from
that situation or exacerbated her symptoms.

(Tr. 245.)

In the space on the medical source statement for evaluating
the plaintiff’s mental abilities and aptitude to do unskilled
work, Dr. Massa indicated the plaintiff had poor ability to
5

maintain regular attendance and be punctual, to work in
coordination with others without being unduly distracted, to
complete a normal workday and workweek without interruptions
from psychological symptoms, to respond appropriately to changes
in a routine week, and to deal with normal work stress.
246.)

(Tr.

With respect to almost all remaining criteria, Dr. Massa

indicated that the plaintiff’s ability or aptitude was seriously
limited but not precluded.3

(Tr. 246.)

The plaintiff’s Bipolar

Disorder interfered with the work-related abilities described
above.

(Tr. 247.)

Dr. Massa concluded that while the

plaintiff’s prognosis was fair, it would be difficult for her to
work at a regular job on a sustained basis, and she would miss
work more than three times each month due to her impairments.
(Tr. 245.)
In a letter dated October 5, 2011, Dr. Massa explained that
the plaintiff continued to experience “difficulties of health,
physical and emotional, exacerbated by very difficult living
conditions and severe economic problems.”

(Tr. 249.)

that the plaintiff was diagnosed with depression.

He noted

(Tr. 249.)

In a letter dated November 3, 2011, Dr. Austriacu noted
that the plaintiff continued to experience physical and mental
3

On the medical source statement form, this conclusion
corresponds to a “fair” rating. However, Dr. Massa indicated
that the plaintiff’s ability to understand, remember, and carry
out short and simple instructions was “good,” that is, limited
but satisfactory. (Tr. 246.)
6

difficulties exacerbated by difficult living conditions and
extreme economic problems and identified the plaintiff’s primary
diagnosis as depression.

(Tr. 251.)

Dr. Austriacu noted the

plaintiff’s “physical problems stem from a late diagnosis of
Lyme disease which at times exacerbates her emotional issues.”
(Tr. 251.)
On November 25, 2011, the plaintiff qualified for Medicaid
due to her disabilities.

(Tr. 260–61.)

After the plaintiff’s

application for DIB was initially denied, she filed a request
for a hearing, which was held on January 9, 2012 before the ALJ.
(Tr. 26.)

The plaintiff appeared with her attorney and

testified that she was living with her mother and, at times,
with her nine year-old son.

(Tr. 34–35.)

The plaintiff stated

that she relied on her mother for housing and groceries, and
that the plaintiff provided some assistance with household
chores.

(Tr. 34-35, 46.)

The plaintiff also stated that she

was not able to sustain work due to depression and irritability.
(Tr. 33, 45–46.)
At the hearing, the plaintiff testified that she had been
seeing Drs. Austriacu and Collins for approximately eighteen
months, had been seeing Dr. Massa for about four months, and had
also seen Dr. Kumar.

(Tr. 36-39.)

The plaintiff stated that

she suffers from, amongst other things, depression, post-Lyme
Disease, hyperthyroidism, and the side-effects from medications
7

her physicians prescribed, and that she experiences insomnia,
fatigue, and manic episodes.

(Tr. 33, 37, 41.)

On January 24, 2012, the ALJ issued his decision denying
benefits.

(Tr. 21.)

The ALJ found that the plaintiff had not

engaged in substantial gainful activity during the period from
her alleged onset date to her last insured date.

(Tr. 16.)

The

ALJ further found that the plaintiff had two “severe
impairments: Bipolar Disorder and Limes disease” that limited
her ability to do basic work activities.

(Tr. 16.)

However,

the ALJ determined that these impairments were not the same as
or equivalent to any listed impairment entitling the plaintiff
to DIB under 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526.
(Tr. 16.)
With respect to the plaintiff’s residual functional
capacity (“RFC”)4, the ALJ concluded that the plaintiff had the
capacity to perform simple unskilled “light work.”

(Tr. 18.)

The ALJ “accord[ed] limited weight” to Dr. Massa’s opinions
because his treatment and therapy notes were not in the record,
his opinion was “conclusory,” and he “fail[ed] to provide an
explanation of the evidence relied upon in forming the opinion.”
(Tr. 19.)

The ALJ found the plaintiff’s statements “concerning

4

RFC is an assessment of an individual’s ability, despite her
impairment, to meet the physical, mental, sensory and other
demands of a job based on all relevant evidence. 20 C.F.R. §
416.945; see also Villanueva v. Barnhart, No. 03 Civ. 9021(JGK),
2005 WL 22846, at *6 n.7 (S.D.N.Y. Jan. 5, 2005).
8

the intensity, persistence, and limiting effects of [her]
symptoms [were] not credible to the extent they [were]
inconsistent” with the ALJ’s RFC determination because the
plaintiff’s “sporadic work history” raised questions about
whether her unemployment was the result of medical impairments
and there “[was] simply insufficient evidence of disabling
impairments that would preclude all vocational activity.”

(Tr.

19.)
The ALJ next found that the plaintiff could not perform her
relevant past work because the plaintiff’s past work required
greater exertional and mental capacity than the plaintiff
possessed.

(Tr. 20.)

Accordingly, the ALJ considered whether,

based on the plaintiff’s RFC, age, education, and work
experience, there were jobs existing in significant numbers in
the national economy that the plaintiff could perform.

The ALJ,

relying on medical vocational guidelines rule 202.21 (the
“Grids”), found that the plaintiff could perform work existing
in significant numbers in the national economy.

(Tr. 20.)

The

ALJ concluded that the plaintiff’s additional limitations had
little or no effect on the occupational base of unskilled light
work.

(Tr. 20.)
The ALJ thus found that the plaintiff was not disabled

under the Act and denied the plaintiff’s DIB claim.
21.)

(Tr. 20–

The plaintiff appealed to the Appeals Council on February
9

27, 2012.

(Tr. 7.)

When the Appeals Council denied review on

March 7, 2013, the ALJ’s determination became final and the
appeal to this Court ensued.

(Tr. 1.)

II.
The plaintiff argues that the ALJ erred by (1) failing to
request treatment and therapy notes from treating psychologist
Dr. Massa and failing to ask Dr. Massa to clarify his opinions
before according them limited weight and (2) determining that
the plaintiff’s testimony about the “intensity, persistence and
limiting effects” of her symptoms was not credible.

A.
A court may set aside the Commissioner’s decisions only if
they are based on legal error or not supported by substantial
evidence in the record.

See 42 U.S.C. § 405(g) (2012); Butts v.

Barnhart, 388 F.3d 377, 384 (2d Cir. 2004) as amended on reh’g
in part, 416 F.3d 101 (2d Cir. 2005).
more than a mere scintilla.

“Substantial evidence is

It 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))
(internal quotation marks and alterations omitted).

A

“disability” occurs when the claimant has an “inability to
10

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

42 U.S.C. § 423(d)(1)(A).

A reviewing court may enter

a “judgment affirming, modifying, or reversing the decision . .
. , with or without remanding the cause for a rehearing.”
U.S.C. § 405(g).

42

Remand is particularly appropriate where an

ALJ has failed to develop the record sufficiently and where a
remand for further findings would help to assure the proper
disposition of a claim.

See Butts, 388 F.3d at 386.
B.

There is a five-step framework to evaluate disability
claims set out in 20 C.F.R. § 404.1520(a).

In essence, “if the

Commissioner determines (1) that the claimant is not working,
(2) that [s]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 [her]
prior type of work, the Commissioner must find [her] disabled if
(5) there is not another type of work the claimant can do.”
Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008) (citations
omitted); see also, e.g., Selian, 708 F.3d at 417–18.

11

The claimant must first establish a disability under the
Act (the framework’s first four steps).
at 120.

See Burgess, 537 F.3d

If satisfied, the Commissioner must establish that,

given the claimant’s RFC, there is still work the claimant could
perform in the national economy (the framework’s fifth step).
See id.

If a claimant cannot perform work in the national

economy then the claimant is entitled to DIB.

See id.

C.
Unlike judges in a district court trial, in the nonadversarial DIB hearing, ALJs have an affirmative duty to
develop the record fully.

See Butts, 388 F.3d at 386; Rosa v.

Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (Sotomayor, J.).

ALJs

must “make every reasonable effort to obtain from the
individual's treating physician (or other treating health care
provider) all medical evidence . . . necessary in order to
properly make a [disability] determination . . .”

42 U.S.C. §

423(d)(5)(B); see also Rosa, 168 F.3d at 74–75, 81 (remanding to
develop record when ALJ did not request further evidence from a
treating physician seen at least nine times over about fifteen
months); Torres v. Commissioner of Social Secur., 13 Civ. 730,
2014 WL 406933, at *4–*6 (S.D.N.Y. Feb. 3, 2014) (remanding to
develop record when ALJ requested treatment notes from some, but
not all, of plaintiff’s treating sources and did not follow up).
When a disability claim is based on a psychiatric illness the
12

ALJ’s duty to develop the record is “enhanced.”

Camilo v.

Comm'r of the Soc. Sec. Admin., 11 Civ. 1345, 2013 WL 5692435,
at *22 (S.D.N.Y. Oct. 2, 2013) (“[I]t is the ALJ's duty to
develop the record and resolve any known ambiguities, and that
duty is enhanced when the disability in question is a
psychiatric impairment.”).
If an ALJ fails to develop the record fully, a reviewing
court must remand the case so that the record may be fully
developed.

See, e.g., Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.

1996).

II.
The ALJ erred when according treating psychologist Dr.
Massa’s medical opinions limited weight without requesting
treatment and therapy notes from Dr. Massa or asking him to
clarify his medical opinions.
Dr. Massa treated the plaintiff once per week for about ten
weeks starting June 24, 2011.

(Tr. 243.)

There are two items

in the record by Dr. Massa: a medical source statement worksheet
and a handwritten letter.

(Tr. 243-50.)

He retrospectively

diagnosed the plaintiff with depression and described how her
physical and mental limitations would affect her work-related
capacities.

He concluded that the plaintiff only possessed some

of the mental abilities and aptitude required for unskilled work
13

and that she was incapable of semi-skilled and skilled work.
(Tr. 243-48.)

Dr. Massa emphasized the plaintiff’s Bipolar

disorder noting it creates “undue personal and social
difficulties” and interferes with her work abilities.
47.)

(Tr. 246-

No treatment or therapy notes were in the record to

support the report.
In the decision, the ALJ found the lack of treatment or
therapy notes in the record significant and accorded Dr. Massa’s
medical opinions “limited weight” but did not request treatment
and therapy notes from Dr. Massa or ask him to clarify his
medical opinions.

(Tr. 19.)

In doing so, the ALJ emphasized

that Dr. Massa provided an “opinion that is conclusory and fails
to provide an explanation of the evidence relied upon in forming
the opinion.”

(Tr. 19.)

It was plain legal error for the ALJ

to discount the opinion of the plaintiff’s treating psychologist
because there was no treatment or therapy notes when the ALJ did
not ask for such records.

It was similarly error to discount

Dr. Massa’s opinion as “conclusory,” despite the detailed
explanation by Dr. Massa, without asking for further support.
A medical opinion by a treating source, even if
retrospective, is generally entitled to significant weight.

See

Lucas v. Barnhart, 160 F. App'x 69, 71 (2d Cir. 2005) (summary
order) (citations omitted); Dousewicz v. Harris, 646 F.2d 771,
774 (2d Cir. 1981) (noting even where a treating source’s
14

opinions were retrospective because he “did not treat the
[claimant] during the relevant period” the opinions were “still
entitled to significant weight”).

A “retrospective diagnosis

must be evaluated in terms of whether it is predicated upon a
medically acceptable clinical diagnostic technique and whether,
considered in light of the entire record, it establishes the
existence of a[n] impairment.”

Lucas, 160 F. App'x at 71

(citations omitted); accord Wagner v. Secretary of Health &
Human Servs., 906 F.2d 856, 857, 859, 861-62 (2d Cir. 1990); cf.
Monette v. Astrue, 269 F. App'x 109, 113 (2d Cir. 2008) (summary
order) (affirming an ALJ’s decision failing to give a
retrospective medical opinion significant weight when—unlike
this case—substantial evidence in record contradicted the
opinion).
For example, in Lucas, the plaintiff’s psychologist
retrospectively diagnosed the plaintiff with anxiety and
depression.

See 160 F. App'x at 70-71.

The ALJ failed to

develop the record that would help explain the opinion.
at 71.

See id.

Remanding the ALJ’s decision, the Court of Appeals

explained that “[a] retrospective diagnosis, made as many as
several years after an onset, must nonetheless be granted
‘significant weight’ by the ALJ,” noting, “[t]o the extent that
these facts were not adequately developed in the administrative
record—in particular, [the claimant]'s precise history of
15

prescriptions for anxiety and depression—the ALJ was obligated
to fill these gaps.”

Id.

Here, like Lucas, the ALJ should have granted Dr. Massa’s
opinion “significant weight” and determined whether Dr. Massa’s
opinions were predicated upon medically acceptable clinical
diagnostic techniques or established the existence of an
impairment.

See, e.g., Dousewicz, 646 F.2d at 774.

To the

extent that facts necessary for this determination were not
provided, the ALJ had a duty to contact Dr. Massa to develop the
record further.

The ALJ could not rely on the absence of

treatment and therapy notes when he failed to obtain them.
Accordingly, giving Dr. Massa’s opinion limited weight due to
insufficient evidence without first attempting to fill the gaps
in the record was error.
Citing Section (d) of 20 C.F.R. pt. 404.1512, the
Commissioner contends the ALJ was not required to contact
Dr. Massa because Dr. Massa did not begin treating the plaintiff
until about five and a half months after she had filed her DIB
application.

See 20 C.F.R. pt. 404.1512(d) (“Before we make a

determination that you are not disabled, we will develop your
complete medical history for at least the 12 months preceding

16

the month in which you file your application . . . .”).

This

contention is misplaced.5
Where an ALJ finds a medical opinion “insufficiently
explained, lacking in support, or inconsistent with the
physician's other reports, the ALJ must seek clarification and

5

Section (e)(1) of that same regulation in effect until March
26, 2012 provided: “We will first recontact your treating
physician or psychologist or other medical source to determine
whether the additional information we need is readily available.
We will seek additional evidence or clarification from your
medical source when the report from your medical source contains
a conflict or ambiguity that must be resolved, the report does
not contain all the necessary information, or does not appear to
be based on medically acceptable clinical and laboratory
diagnostic techniques.” See Calzada v. Asture, 753 F. Supp. 2d
250, 269-70 (S.D.N.Y. 2010) (quoting 20 C.F.R. pt.
404.1512(e)(1) (2012) (amended version available at 20 C.F.R.
pt. 404.1512(e) (2014))). This Section does not indicate it
only applies to medical opinions created before a claimant files
a disability application. After the Commissioner’s final
decision was issued, on March 26, 2012, a final rule came into
effect removing this provision and adding 20 C.F.R. § 404.1520b.
See 77 Fed. Reg. 10651-57 (Feb. 23, 2012). There is no evidence
that this amendment was meant to apply retroactively. Further,
in the proposed rulemaking the Social Security Administration
explained that under the amended regulation it still intended
for ALJs to recontact a claimant’s medical sources whose
opinions do not include enough clinical or objective findings.
See 76 Fed. Reg. 20282, 20283 (Apr. 12, 2011) (“Although we
propose to eliminate the requirement that we recontact your
medical source(s) first when we need to resolve an inconsistency
or insufficiency in the evidence he or she provided, we expect
that out adjudicators would continue to recontact your medical
source(s) when we believe such recontact is the most effective
and efficient way to resolve an inconsistency or inefficiency.
For example, if we have a report from one of your medical
sources that contains a functional assessment of your physical
capacity for work, but no clinical or objective findings in
support, we expect that the adjudicator would first contact that
source to find out the reasons for his or her assessment.”).
17

additional information from the physician to fill any clear gaps
before dismissing the doctor's opinion.”

Calzada, 753 F. Supp.

2d at 269; see also Cedeno v. Comm'r of Soc. Sec., 315 F. App'x
352, 353 (2d Cir. 2009) (summary order) (“[T]he ALJ disregarded
the opinion of Dr. Luis Guerra because it was conclusory and not
supported by clinical and laboratory diagnostic tests without
first seeking additional evidence as required by the relevant
regulations. . . . Accordingly, further administrative
proceedings are necessary to evaluate Cedeno's application for
DI and SSI benefits.”); Rosa, 168 F.3d at 79 (“[E]ven if the
clinical findings were inadequate, it was the ALJ's duty to seek
additional information from [the treating physician] sua
sponte.”) (citations omitted) (alterations in original).
This duty can still apply to records from a medical source
who treated the claimant after the DIB application was filed.
This is true because a medical source’s opinion about treatment
after the DIB application was filed may support the conclusion
that the claimant was in fact suffering from a disability at the
time the DIB application was filed.

See Rolon v. Comm'r of Soc.

Sec., 994 F. Supp. 2d 496, 504-05 (S.D.N.Y. 2014) (remanding for
ALJ to develop the record fully when ALJ accorded little weight
to a treating psychologist’s opinion who began treatment after
the claimant submitted his application due to an inconsistency
in the report); Miller v. Astrue, 03CIV.2072 (LAP) (FM), 2008 WL
18

2540750, *2, *7, *9-*10 (S.D.N.Y. June 23, 2008) (remanding for
the ALJ to develop the record fully when ALJ accorded little
weight to opinion of a treating doctor who began treatment after
the claimant submitted her application when it was unclear what
the doctor’s opinion was based on).

The ALJ was required to

request additional evidence or clarification from Dr. Massa even
though Dr. Massa began treating the plaintiff after she filed
her DIB application.

III.
The ALJ also erred when he conclusory determined that the
plaintiff’s testimony about the “intensity, persistence and
limiting effects” of her symptoms was not credible.

The ALJ

failed to provide sufficient reasons for review.
While “the ALJ has discretion to evaluate the credibility
of the claimant and to arrive at an independent judgment, in
light of the medical findings and other evidence, regarding the
true extent of the pain alleged, if the ALJ decides to reject
subjective testimony concerning pain and other symptoms, he must
do so explicitly and with sufficient specificity to enable the
Court to decide whether there are legitimate reasons for the
ALJ's disbelief and whether his determination is supported by
substantial evidence.”

Brandon v. Bowen, 666 F. Supp. 604, 608

(S.D.N.Y. 1987); see also Lugo v. Apfel, 20 F. Supp. 2d 662, 663
19

(S.D.N.Y. 1998).

“It is not sufficient for the adjudicator to

make a single, conclusory statement that . . . the allegations
are (or are not) credible.”

Social Security Ruling (SSR) 96-7p,

61 Fed. Reg. 34483-01(5) (July 2, 1996).
In this case, the ALJ determined the plaintiff’s testimony
regarding the “intensity, persistence and limiting effects” of
her symptoms was not credible in a “single, conclusory
statement,” which reads as follows:
[T]he claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are
not credible to the extent that are inconsistent with
the above [RFC] assessment.
(Tr. 19.)

The decision does not state a basis for this

credibility determination, leaving this Court unable to review
the decision.

“Conclusory determinations such as these leave a

reviewing court no basis on which to determine whether the
proper factors were considered and the appropriate legal
standards applied.”

Lugo, 20 F. Supp. 2d at 664; see also

Harrison v. Sec'y of Health & Human Servs., 901 F. Supp. 749,
757 (S.D.N.Y. 1995); Fishburn v. Sullivan, 802 F. Supp. 1018,
1028–29 (S.D.N.Y. 1992); Brandon, 666 F. Supp. at 608–09.
The Commissioner’s motion improperly justifies the ALJ’s
decision by highlighting facts and reasons the decision does not
cite.

Because reviewing courts cannot consider post hoc

rationalization for an ALJ’s decision, see Snell v. Apfel, 177

20

F.3d 128, 134 (2d Cir. 1999), it is incumbent on an ALJ to
explain the reasoning within the decision.

Failing to do so in

this case was a legal error that requires a remand so that the
ALJ can state the basis for the credibility determination with
sufficient specificity that a court may review the decision.
CONCLUSION
This Court considered all of the arguments of the parties.6
To the extent not addressed above, the remaining arguments are
either moot or without merit.

For all the reasons explained

above, the plaintiff's cross-motion for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure is granted, and the Commissioner’s motion is denied.
The Commissioner's decision is reversed and this case is
remanded for further administrative proceedings developing the
record in accordance with this opinion.

The Clerk is directed

to enter judgment and to close this case.
SO ORDERED.
Dated:

New York, New York
September 23, 2014

____________/s/______________
John G. Koeltl
United States District Judge

It is unnecessary to reach the plaintiff’s additional
contentions that the ALJ erred by (1) failing to request an
opinion about the plaintiff’s work-related capabilities from his
treating physician Dr. Austriacu and (2) relying on the Grids in
a determinative manner to conclude that the plaintiff was
disabled without consulting a vocational expert.
6

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