Marinez v. Commissioner of Social Security
OPINION AND ORDER: re: 24 CROSS MOTION for Judgment on the Pleadings filed by Mercedes Marinez, 13 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security. For the foregoing reasons, the Commissioner's motio n for judgment on the pleadings (Docket # 13) is denied and Marinez's motion for judgment on the pleadings (Docket # 24) is granted. The case is remanded to the Social Security Administration pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Opinion and Order. The Clerk of Court is requested to enter judgment. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 9/12/2017) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
16 Civ. 3243 (GWG)
COMMISSIONER OF SOCIAL SECURITY,
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Mercedes Marinez brought this action under 42 U.S.C. § 405(g) (as incorporated
by 42 U.S.C. § 1383(c)(3)) to obtain judicial review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying her claim for supplemental security income (“SSI”)
benefits. Both parties have moved for judgment on the pleadings.1 For the following reasons,
Marinez’s motion is granted and the Commissioner’s motion is denied.
A. Procedural History
Marinez applied for SSI benefits on February 23, 2013. See Certified Administrative
Record, filed Aug. 3, 2016 (Docket # 10) (“R.”), at 131-39. The Social Security Administration
denied her application on May 16, 2013. R. 95-106. Marinez requested a hearing before an
Administrative Law Judge (“ALJ”). R. 108-10. After a hearing held on September 12, 2014, R.
51-83, the ALJ issued a decision on November 12, 2014, finding that Marinez was not disabled.
R. 14-27. The Appeals Council denied Marinez’s request for review on March 31, 2016, making
See Notice of Motion, filed Oct. 3, 2016 (Docket # 13); Memorandum of Law in
Support of Defendant’s Motion for Judgment on the Pleadings, filed Oct. 3, 2016 (Docket # 14)
(“Comm’r Mem.”); Notice of Cross-Motion for Judgment on the Pleadings, filed Jan. 24, 2017
(Docket # 24); Memorandum of Law in Support of Plaintiff’s Cross-Motion for Judgment on the
Pleadings, filed Jan. 25, 2017 (Docket # 26) (“Pl. Mem.”).
the ALJ’s determination the Commissioner’s final decision. R. 1-7. Marinez then filed the
instant lawsuit to review that determination. Complaint, filed Apr. 29, 2016 (Docket # 2).
B. The Administrative Record
Marinez and the Commissioner have each provided a summary of the medical evidence
contained in the administrative record. See Pl. Mem. at 11-20; Comm’r Mem. at 3-10. The
Court adopts these summaries, which do not materially conflict with each other, as accurate and
complete for the purpose of considering the issues raised in this suit, except to the extent we
discuss additional records below. We discuss the portions of the medical evidence pertinent to
this case in section III below.
C. The Hearing Before the ALJ
Marinez was accompanied by a non-attorney representative at the hearing before the
ALJ. R. 51-83. The ALJ heard testimony from Marinez, R. 57-77, and Dr. Pat Greene, a
vocational expert, R. 77-82.
Marinez testified that she was born in 1961, and had completed a year of college. R. 57.
She lived with her daughter and her five-year-old grandson, but she could not take care of her
grandson “because of medication that [she took] to [treat] . . . depression and anxiety.” R. 58-59.
She last worked in 2009 as a child care professional, but stopped working because of her
medication for depression, which kept her from sleeping. R. 60-61. She felt “terrible.” R. 63.
She last visited the Dominican Republic — where she had family — about three years before the
hearing and stayed there for about four months. R. 61-62.
Marinez testified that she had not had any regular treatment for her physical problems
other than hypertension, nor any diagnostic testing. R. 64-65. She also said that she had panic
attacks, which caused “palpations” in her chest and anxiety. R. 66-68. She treated these attacks
with anxiety pills. R. 68-69. She also referenced back pain, R. 64-65, arthritis in her legs and
hands, see R. 65, and hypertension, R. 64. Marinez’s representative had mentioned “back pain,”
“hypertention” and “arthritis” in an opening statement, R. 55, though the ALJ noted that Marinez
had “filed a claim that was only based on psych,” R. 56.
Marinez’s depression was caused by “family personal problems.” R. 61. She had good
days and bad days, but the three weeks prior to the hearing had been bad. R. 63. On good days
she could sometimes travel by herself on buses and subways. Id. On bad days, if she did not
have “any appointments or nothing to do,” she stayed in her house. R. 64. She said that “most
of the time I don’t want to see no one, not even my family.” Id. Marinez said that she had been
seeing a psychiatrist, Dr. Gerardo Tapia,2 but had only recently started seeing a therapist. R 73.
Regarding the therapist, the ALJ said not to “bother with those records . . . [t]hey’re irrelevant”
because Marinez had just started seeing her two days before the hearing. R. 73-74.
Dr. Greene appeared by telephone. Based on Marinez’s description of her previous work
as a child-care provider, Dr. Greene identified this job as “child monitor . . . semi-skilled at a
medium level” under the Dictionary of Occupational Titles. R. 78. The ALJ asked Dr. Greene
to assume that Marinez could perform work-related activities with no exertional limitations, but
with the following general limitations:
She should avoid working at unprotected heights, or with hazardous machinery.
She can remember; understand; and carry out simple instructions; make simple
work related decisions; maintain attention; and concentration for wrote [sic]
work; maintain a regular schedule; and can perform a low-stress job, defined as
one with no close interpersonal contact with the general public.
R. 79. Dr. Greene testified that Marinez could not perform her prior work. Id. However, she
The hearing record incorrectly renders this name as “Topia.”
said that a hypothetical person with those restrictions could perform jobs such as hand packager,
dishwasher, or industrial cleaner. Id. Dr. Greene testified that there would be no work a
hypothetical claimant could perform if the claimant additionally could not maintain attention and
concentration for rote work; carry out simple instructions; “interact with . . . supervisors;
coworkers; or the general public; or respond appropriately to our usual work situations and to
changes in the routine work setting”; or if she would be expected to miss more than one day of
work per month. R. 79-80.
As the hearing concluded, the ALJ said that he would try to get further records from Dr.
Tapia, and would give Dr. Tapia two weeks to respond. R. 82. He said that “[i]f necessary, and
if I don’t get them, I’ll make my decision based upon what I have.” Id.
D. The ALJ’s Decision
The ALJ ruled that Marinez had not been disabled since February 23, 2013, the date of
her SSI benefits application. R. 17. In his decision, the ALJ employed the five-step sequential
evaluation process described in the Social Security Administration regulations to determine
whether Marinez was disabled. R. 17-19; see 20 C.F.R. § 416.920(a). The ALJ found that
Marinez had not engaged in substantial gainful activity since the date of her application and had
the severe impairment of depression. R. 19. However, the ALJ found that this was her only
severe impairment because although the evidence indicated Marinez had hypertension, “there
[was] no evidence that this condition result[ed] in any work-related limitations,” and thus was
not a “severe” impairment. Id. The ALJ also found that “there [was] no medical evidence
whatsoever indicating that [Marinez] has asthma.” Id.
Next, the ALJ determined that Marinez did not have an impairment or combination of
impairments that met or medically equaled the severity of any of the listed impairments in 20
C.F.R. part 404, subpart P, appendix 1. R. 19-20. The ALJ addressed what are commonly
known as “paragraph B” criteria,3 finding that Marinez had only mild restriction in her activities
of daily living, and moderate difficulties in social functioning and “[w]ith regard to
concentration, persistence or pace.” R. 19-20. He also found that Marinez had not suffered any
episodes of decompensation, let alone repeated episodes of extended duration. R. 20. He noted
that the treatment records indicated that Marinez had been functioning well, and that her
testimony and statements in the record did not indicate any limitation greater than a moderate
severity. Id. For these reasons, the ALJ found that the “paragraph B” criteria were not satisfied.
Id. The ALJ also found that “the evidence fails to establish the presence of the ‘paragraph C’
For mental disorders, the “paragraph B” criteria “represent the areas of mental
functioning a person uses in a work setting.” 20 C.F.R. part 404, subpt. P, app. 1
§ 12.00(A)(2)(b). A claimant can satisfy the “paragraph B” criteria by showing “[e]xtreme
limitation of one, or marked limitation of two,” of the ability to:
Understand, remember, or apply information.
Interact with others.
Concentrate, persist, or maintain pace.
Adapt or manage oneself.
See, e.g., id. §§ 12.04(B), 12.06(B) (citations omitted). “Marked” restrictions or difficulties are
serious limitations on the ability to function “independently, appropriately, effectively, and on a
sustained basis” in a given area, and represent a four on a five-point scale, with one being no
limitation and five being “extreme limitation” — essentially no functioning at all in a given area.
Id. § 12.00(F)(2).
The paragraph C criteria are used “to evaluate mental disorders that are ‘serious and
persistent,’” recognizing that “mental health interventions may control the more obvious
symptoms and signs of [a claimant’s] mental disorder.” 20 C.F.R. part 404, subpt. P, app. 1
§ 12.00(G)(1). A mental disorder meets the paragraph C criteria if there is
a medically documented history of the existence of the disorder over a period of
at least 2 years, and there is evidence of both:
The ALJ found that Marinez had the residual functional capacity to perform a full range
of work at all exertional levels, but must avoid working at unprotected heights or with hazardous
machinery; can remember, understand, and carry out simple instructions; can make simple workrelated decisions; can maintain attention and concentration for rote work, as well as a regular
schedule; and can perform work in a low stress setting — defined as one that “requires no close
interpersonal contact with the general public.” Id. He based this finding on the treating source
records that indicated good functioning and results when Marinez’s depression was treated with
medications; the findings and opinions of the consulting psychologist; on the opinion of the
Disability Determination Service (“DDS”) reviewer; and on “statements by [Marinez]
throughout the record indicating some good functioning in terms of activities of daily living and
social interactions.” R. 23.
The ALJ noted that Marinez had a history of problems with depression, and had been
seen by Dr. Tapia from at least 2011 to 2014. R. 21. While he accepted that Marinez’s
impairments could reasonably cause her alleged symptoms, the ALJ found that her statements
“concerning the intensity, persistence, and limiting effects of these symptoms are not entirely
credible when considering the treatment records indicating symptoms of much more mild
severity than she described at the hearing.” R. 22. He contrasted her statements that she had
1. Medical treatment, mental health therapy, psychosocial support(s) or a highly
structured setting(s) that is ongoing and that diminishes the symptoms and signs
of [the claimant’s] mental disorder; and
2. Marginal adjustment, that is . . . minimal capacity to adapt to changes in [the
claimant’s] environment or to demands that are not already part of [the
claimant’s] daily life.
See, e.g., id. §§ 12.04(C), 12.06(C) (citations and emphasis omitted).
severe problems with depression, including isolation and difficulty getting out of bed, with her
reports to her psychiatrist that she felt OK or well or “so-so,” that she had good results with
medication, and that she had taken an extended visit to the Dominican Republic and spent time
with family at Thanksgiving. Id.
Considering the opinion evidence, the ALJ gave little weight to Dr. Tapia’s claim of
“marked” limitations to Marinez’s work-related functions, as he found this claim inconsistent
with the underlying progress notes. Id. The ALJ noted that he subpoenaed additional records
from Dr. Tapia, but the doctor did not respond. Id. He gave substantial weight to the opinion of
the consultative examining psychologist as consistent with the psychologist’s examination
findings and Marinez’s “reportedly generally normal daily activities.” Id. The ALJ also gave
partial weight to the “DDS reviewing source” because, although this person was not an
examining or treating source, his opinion was consistent with the other evidence in the record.
The ALJ found that while Marinez could not perform her past relevant work as a “child
monitor,” other jobs existed in the national economy that she could perform. R. 23. These
included hand packager, dishwasher, and industrial cleaner. R. 24. The ALJ relied on the
vocational expert’s testimony that a person with Marinez’s age, education, work experience, and
residual functional capacity could perform these jobs. Id. Because other work existed that
Marinez could perform, the ALJ found that Marinez had not been disabled since February 23,
II. APPLICABLE LAW
A. Scope of Judicial Review under 42 U.S.C. § 1383(g)
A court reviewing a final decision by the Commissioner “is limited to determining
whether the [Commissioner’s] conclusions were supported by substantial evidence in the record
and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013)
(per curiam) (citations and quotation marks omitted); accord Greek v. Colvin, 802 F.3d 370,
374-75 (2d Cir. 2015) (per curiam); see also 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive . . . .”); id. § 1383(c)(3) (“The final determination of the Commissioner of Social
Security . . . shall be subject to judicial review as provided in section 405(g) . . . .”). Substantial
evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (internal quotation marks omitted) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S.
197, 229 (1938)); accord Greek, 802 F.3d at 375; Burgess v. Astrue, 537 F.3d 117, 127-28 (2d
Cir. 2008); Matthews v. Leavitt, 452 F.3d 145, 152 n.9 (2d Cir. 2006); Shaw v. Chater, 221 F.3d
126, 131 (2d Cir. 2000).
“Even where the administrative record may also adequately support contrary findings on
particular issues, the ALJ’s factual findings must be given conclusive effect so long as they are
supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per
curiam) (citation and internal quotation marks omitted). Thus, “[i]f the reviewing court finds
substantial evidence to support the Commissioner’s final decision, that decision must be upheld,
even if substantial evidence supporting the claimant’s position also exists.” Johnson v. Astrue,
563 F. Supp. 2d 444, 454 (S.D.N.Y. 2008) (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990)); accord McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“If evidence is susceptible
to more than one rational interpretation, the Commissioner’s conclusion must be upheld.”). The
Second Circuit has characterized the “substantial evidence” standard as “a very deferential
standard of review — even more so than the ‘clearly erroneous’ standard.” Brault v. Soc. Sec.
Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (citation omitted). “The
substantial evidence standard means once an ALJ finds facts, [a court] can reject those facts only
if a reasonable factfinder would have to conclude otherwise.” Id. (emphasis in original) (citation
and internal quotation marks omitted). “The role of the reviewing court is therefore quite limited
and substantial deference is to be afforded the Commissioner’s decision.” Johnson, 563 F. Supp.
2d at 454 (citation and internal quotation marks omitted).
B. Standard Governing Evaluation of Disability Claims by the Agency
The Social Security Act defines the term “disability” as the “[inability] 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 can be expected to
last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A
person will be found to be disabled only if it is determined that the person’s “impairment or
impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” Id. § 1382c(a)(3)(B).
To evaluate a claim of disability, the Commissioner is required to examine: “(1) the
objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective
evidence of pain or disability testified to by the claimant or others; and (4) the claimant’s
educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037
(2d Cir. 1983) (per curiam).
Regulations issued pursuant to the Social Security Act set forth a five-step process that
the Commissioner must use in evaluating a disability claim. See 20 C.F.R. § 416.920(a)(4); see
also Burgess, 537 F.3d at 120 (describing the five-step process). First, the Commissioner must
determine whether the claimant is currently engaged in any “substantial gainful activity.” 20
C.F.R. § 416.920(a)(4)(I). Second, if the claimant is not engaged in substantial gainful activity,
the Commissioner must decide if the claimant has a “severe medically determinable physical or
mental impairment,” id. § 416.920(a)(4)(ii), which is an impairment or combination of
impairments that “significantly limits [the claimant’s] physical or mental ability to do basic work
activities,” id. § 416.920(c). Third, if the claimant’s impairment is severe and “meets or equals”
one of the listings in 20 C.F.R. part 404, subpart P, appendix 1, and “meets the duration
requirement,” the claimant must be found disabled. Id. § 416.920(a)(4)(iii). Fourth, if the
claimant’s impairment does not meet or equal one of the listed impairments, or does not meet the
duration requirement, the Commissioner must review the claimant’s residual functional capacity
to determine if the claimant is able to do the work he or she performed in the past, i.e., “past
relevant work.” Id. § 416.920(a)(4)(iv). If the claimant is able to do such work, he or she is not
disabled. Id. Finally, if the claimant is unable to perform past relevant work, the Commissioner
must decide if the claimant’s residual functional capacity, in addition to his or her age,
education, and work experience, permit the claimant to do other work. Id. § 416.920(a)(4)(v). If
the claimant cannot perform other work, he or she will be deemed disabled. Id. The claimant
bears the burden of proof on all of these steps except the final one — that is, proving that there is
other work the claimant can perform. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009)
C. The Duty to Develop the Record and the Treating Source Rule
When an ALJ assesses a claimant’s alleged disability, an ALJ must develop the
claimant’s medical history for at least a 12-month period. See Shaw, 221 F.3d at 131 (“The ALJ
has an obligation to develop the record in light of the non-adversarial nature of the benefits
proceedings . . . .”) (citing cases); accord Sims v. Apfel, 530 U.S. 103, 111 (2000) (ALJ has a
“duty to investigate the facts and develop the arguments both for and against granting benefits”);
42 U.S.C. § 423(d)(5)(B); 20 C.F.R. § 416.912(d) (effective June 12, 2014, to Apr. 19, 2015).5
The governing statute provides that the ALJ “shall make every reasonable effort to obtain from
the individual’s treating physician (or other treating health care provider) all medical evidence,
including diagnostic tests, necessary in order to properly make” the disability determination. 42
U.S.C. § 423(d)(5)(B); accord 20 C.F.R. § 416.912(d). The regulations define this as, at a
minimum, “the records of [a claimant’s] medical source(s) covering at least the 12 months
preceding the month in which” a claim is filed. 20 C.F.R. § 416.912(d)(2). “Every reasonable
effort” means that the Social Security Administration must:
make an initial request for evidence from [a claimant’s] medical source or entity
that maintains your medical source’s evidence and, at any time between 10 and 20
calendar days after the initial request . . . make one follow-up request to obtain
the medical evidence necessary to make a determination. The medical source will
have a minimum of 10 calendar days from the date of our follow-up request to
reply, unless our experience with that source indicates that a longer period is
advisable in a particular case.
Id. § 416.912(d)(1); accord Assenheimer v. Comm’r of Soc. Sec., 2015 WL 5707164, at *15
(S.D.N.Y. Sept. 29, 2015), appeal dismissed, No. 15-3421 (2d Cir. Apr. 15, 2016). The ALJ’s
duty to develop the record remains the same regardless of whether the claimant is represented by
counsel. Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (citing Pratts v. Chater, 94 F.3d 34,
37 (2d Cir. 1996)); accord Cancel v. Colvin, 2015 WL 865479, at *5 (S.D.N.Y. Mar. 2, 2015)
(citing cases). Where the ALJ fails to develop the record, remand is appropriate. Rosa v.
The text of this section effective March 27, 2017, 20 C.F.R. § 416.912(b)(1), is
substantially the same for our purposes.
Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999).
The obligation to develop the record is “enhanced when the disability in question is a
psychiatric impairment.” Lacava v. Astrue, 2012 WL 6621731, at *11 (S.D.N.Y. Nov. 27,
2012); accord Gabrielsen v. Colvin, 2015 WL 4597548, at *4 (S.D.N.Y. July 30, 2015) (citing
cases). This “heightened duty” derives from the fact that a claimant’s mental illness may greatly
impede an evaluator’s assessment of a claimant’s ability to function in the workplace, thus
necessitating a more thorough review. See Gabrielsen, 2015 WL 4597548, at *4 (noting that an
individual with a mental disorder often “adopt[s] a highly restricted and/or inflexible lifestyle
within which they appear to function well”) (citation and internal quotation marks omitted);
accord SSR 85-15, 1985 WL 56857 (1985) (noting that the “highly restricted and inflexible
lifestyle” of individuals with mental disorders may cause difficulty meeting the requirements of
even low-stress jobs).
On the other hand, it is well established that “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 (citing Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996) (where
the ALJ had “already . . . obtained and considered reports” from treating physicians, the ALJ
“had before him a complete medical history, and the evidence received from the treating
physicians was adequate for him to make a determination as to disability”)).
“[I]nextricably linked to the duty to develop the record,” Lacava, 2012 WL 6621731, at
*13, is the so-called “treating source rule,” under which an ALJ must give “more weight to
medical opinions” of a claimant’s treating physician when determining if the claimant is
disabled. See 20 C.F.R. § 416.927(c)(2); see also Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.
2004) (per curiam) (the ALJ must give “a measure of deference to the medical opinion of a
claimant’s treating physician”).6 A “treating source” is an “acceptable medical source who
provides [the claimant], or has provided [the claimant], with medical treatment or evaluation and
who has, or has had, an ongoing relationship with [the claimant].” 20 C.F.R. § 416.927(a)(2).
The general distinction is between a source who has seen a claimant “with a frequency consistent
with accepted medical practice for the type of treatment and/or evaluation required” and those
based “soley on [a claimant’s] need to obtain a report in support of [their] claim for disability.”
Treating sources “are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of [a claimant’s] medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations.” Id. § 416.927(c)(2). As such, when a treating
source’s opinion “is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case
record,” an ALJ must give it controlling weight. Id. Inversely, the opinions of a treating source
“need not be given controlling weight where they are contradicted by other substantial evidence
in the record.” Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (collecting cases); accord
Selian, 708 F.3d at 418 (“The opinion of a treating physician on the nature or severity of a
20 C.F.R. § 416.927 was amended effective March 27, 2017, and the revisions apply to
all claims filed before that date. See Revisions to Rules Regarding the Evaluation of Medical
Evidence, 82 Fed. Reg. 5844, 5844, 5880-81 (Jan. 18, 2017). Other than the definition of
“treating source” the new regulation remains substantially the same for claims filed before
March 27, 2017. Compare 20 C.F.R. § 416.927 (version effective Aug. 24, 2012, to Mar. 26,
2017), with id. § 416.927 (version effective Mar. 27, 2017). For claims filed on or after March
27, 2017, the rules in 20 C.F.R. § 416.927(c) now apply. See id. § 416.927 (version effective
Mar. 27, 2017).
claimant’s impairments is binding if it is supported by medical evidence and not contradicted by
substantial evidence in the record.”).
If the ALJ does not give controlling weight to a treating source’s opinion, the ALJ must
provide “good reasons” for the weight given to that opinion. See Greek, 802 F.3d at 375;
Halloran, 362 F.3d at 32-33 (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)). When
assessing how much weight to give the treating source’s opinion, the ALJ should consider
factors set forth in the Commissioner’s regulations, which include (I) whether the source
examined the claimant; (ii) the length of the treatment relationship and the frequency of the
examination; (iii) the nature and extent of the treatment relationship; (iv) the supportability of
the opinion with relevant evidence, particularly medical signs and laboratory findings; (v) the
consistency of the opinion with the record as a whole; (vi) whether the opinion is from a
specialist; and (vii) other relevant evidence. See 20 C.F.R. § 416.927(c)(1)-(6); see also
Ellington v. Astrue, 641 F. Supp. 2d 322, 330-31 (S.D.N.Y. 2009) (“[T]he ALJ should weigh the
treating physician’s opinion along with other evidence according to the factors” listed in 20
C.F.R. § 416.927(c)). The Second Circuit has stated that it will “not hesitate to remand when the
Commissioner has not provided ‘good reasons’ for the weight given to a treating physician[’]s
opinion and [it] will continue remanding when [it] encounter[s] opinions from ALJ[s] that do not
comprehensively set forth reasons for the weight assigned to a treating physician’s opinion.”
Halloran, 362 F.3d at 33; see also Greek, 802 F.3d at 375-77 (remanding where “ALJ did not
provide any [valid] explanation for why [a treating physician’s] opinion was not
well-supported”) (citation and internal quotation marks omitted).
Among her arguments, Marinez faults the ALJ for not obtaining additional treatment
records from Dr. Tapia, see Pl. Mem. at 32 — an argument to which the Government did not
respond.7 Because this argument is sufficient to require remand, we do not address Marinez’s
main argument: that the ALJ improperly discounted the opinion of Marinez’s treating source, Dr.
Tapia. See Pl. Mem. at 25-30.
At the time of his decision, the ALJ had before him Dr. Tapia’s treatment notes only for
the period from 2011 to March 2013. R. 21; see R. 188-99. That there were no treatment notes
after March 2013 was understandable inasmuch as Dr. Tapia’s treatment notes had been
requested initially on March 5, 2013. R.86.
The problem here is that Dr. Tapia delivered his opinion that Marinez had marked
limitations in functioning in June 2014, R. 211-14, and the ALJ’s decision turned on the fact that
Dr. Tapia’s assertion that Marinez had marked limitations was “not supported by the underlying
progress notes,” R. 22. Dr. Tapia’s opinion indicates that he had seen Marinez monthly since the
treatment records were requested in March 2013, see R. 211 — that is, including the period from
March 2013 to June 2014 when the opinion was offered. While we agree that the ALJ could
properly find that the treatment notes up through March 2013 provided minimal support for Dr.
Tapia’s June 2014 opinion, the gap in time from March 2013 to June 2014 was of great
significance given that Marinez applied for benefits in February 2013 and the ALJ found
Marinez was not disabled from that date to the date of his November 12, 2014, decision. See R.
24. This significance is heightened in this case because Dr. Tapia was the only treating source
for Marinez’s psychological conditions and had treated her consistently since 2009. See R. 211.
Further, the ALJ’s only justification for discounting Dr. Tapia’s opinion was that the underlying
The Government declined to file a brief replying to Marinez’s arguments in this case.
progress notes through March 2013 did not support Dr. Tapia’s findings in his 2014 report. See
R. 22. Thus, the duty to make “every reasonable effort,” 42 U.S.C. § 423(d)(5)(B); accord 20
C.F.R. § 416.912(d), to obtain the post-March 2013 treatment notes was heightened in this case.
The ALJ stated in his decision that he “subpoena[ed] additional records from Dr. Tapia
and [the doctor] did not respond to the subpoena.” R. 22; see R. 128. But given the unusual
circumstances of this case that made the absence of these records so critical to the ALJ’s
decision, the lengthy passage of time, and the fact that the records from the missing time period
were being sought for the very first time, we believe that the spirit if not the letter of 20 C.F.R.
§ 416.912(d)(1) required that the ALJ make at least one additional follow-up request to fulfill his
duty to develop the record. Accordingly, the case will be remanded for the purpose of making at
least one more contact with Dr. Tapia to obtain the missing records. Once those records are
obtained, the ALJ will have a sound basis on which to make a judgment about Dr. Tapia’s
We note also that, during the hearing, the ALJ instructed Marinez’s representative not to
obtain records from a different treating source who was providing therapy because “she just
started two days” before the hearing. R. 74. Given that the matter is now being remanded, the
ALJ should also make every reasonable effort to obtain these records. The ALJ should of course
also consider the evidence that was presented to the Appeals Council when he considers this case
on remand, to the extent it bears on the disability determination.
The ALJ has leave to take any further action consistent with the law and regulations
governing disability determinations that is not inconsistent with this Opinion.
For the foregoing reasons, the Commissioner’s motion for judgment on the pleadings
(Docket# 13) is denied and Marinez's motion for judgment on the pleadings (Docket# 24) is
granted. The case is remanqed to the Social Security Administration pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings consistent with this Opinion and Order. The Clerk
of Court is requested to enter judgment.
New York, New York
September 12, 2017
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