Carr v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATION re: 16 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security; 11 MOTION for Judgment on the Pleadings filed by Kevin Carr. For these reasons, I recommend denying the Commissioner's motion for judgment on the pleadings, granting the plaintiff's motion for judgment on the pleadings, an remanding this case to the Social Security Administration for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objectionsto this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Vernon S. Broderick, Room 415, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. (Objections to R&R due by 5/25/2017.) (Signed by Magistrate Judge James C. Francis on 5/11/2017) Copies Transmitted this Date By Chambers. (anc)

worked as a meat packer from April 2004 until June 2011.
216).

(R. at

For a few months at the end of 2012, he worked as a

construction worker.

(R. at 216).

Mr. Carr was fifty-four years

old when he filed an application for DIB on April 8, 2013, and an
application for SSI on May 2, 2013.

(R. at 183-200).

In his DIB

application, he claimed he became unable to work on June 1, 2011
(R. at 185); in his SSI application he claimed a disability onset
date of January 1, 2013 (R. at 192).
following

conditions

limited

his

Mr. Carr asserted that the
ability

to

work:

bipolar

disorder, anxiety, depression, asthma, high blood pressure, back
pain,

gastroesophageal

marcoglobulinemia. 1

reflux

(R. at 214).

disease

completed

a

Function

and

At the time of his applications,

Mr. Carr was divorced and living in a shelter.
He

(“GERD”),

Report

in

application for benefits on May 20, 2013.

(R. at 192, 224).

connection

with

his

(R. at 224-32).

He

asserted that medications interfered with his sleep and that he
could “sometimes” dress himself and shave.

(R. at 225-26).

He

was able to bathe, feed himself, shop for food, and use the toilet.
(R. at 225-26, 228).

He reported leaving the shelter in which he

lived each day to walk to his appointments (including monthly

1

Macroglobulinemia is a kind of non-Hodgkin lymphoma.
Waldenström Macroglobulinemia, Lymphoma Research Foundation,
http:www.lymphoma.org/site/pp.asp?c=bkLTKaOQLmK8E&b=6300163 (last
visited May 8, 2017).
2

appointments with health care providers and weekly visits to food
pantries), but stated that panic attacks kept him from “go[ing]
places or on trains.”

(R. at 227-29).

He could not lift things,

walk “too far,” stand or sit “too long,” kneel, squat, or climb
stairs because of his back pain and his asthma.

(R. at 229-30).

When he walked, he could travel for two blocks and then required
a thirty-minute rest.

(R. at 231).

He also reported problems

paying attention and remembering things.
B.

(R. at 231-32).

Medical Evidence
1.

Physical Impairments

Mr. Carr began seeking monthly treatment for low back pain at
La Casa de Salud in June 2012, which continued at least until
October 2014.

(R. at 449).

He had a physical therapy evaluation

on December 17, 2012, at All Med Medical and Rehabilitation Center.
(R. at 324-26). 2

He rated his lower back pain at an eight on a

scale of one to ten.

(R. at 325).

His lumbosacral spine had a

range of motion of ninety degrees flexion and twenty degrees
extension.
spasms.

(R. at 325).
(R. at 325).

He had numbness in both thighs and some
His endurance was poor, his standing

balance and ambulation were fair, and his seated balance was good.
(R. at 325).

On a straight leg raise test, he complained of pain

or tightness on the right side at thirty degrees.

2

This document is largely illegible.
3

(R. at 325).

It appears that he returned for physical therapy four times within
the next few weeks and reported reduced pain and tenderness.

(R.

at 322-23).
Dr.

Marilee

Mescon

conducted

examination on June 17, 2013.

a

consultative

(R. at 342).

medical

Mr. Carr claimed a

history of GERD and of cocaine and heroin use.

(R. at 342).

He

described a back injury that occurred while lifting weights, and
back pain of between seven and nine on a scale of one to ten.
at 344).

He asserted that he could cook, clean, do laundry, shop,

shower, bathe, and dress.
140/80.

(R. at 342).

(R. at 342).

His blood pressure was

Mr. Carr’s gait and stance were normal; he

could walk on heels and toes, as well as squat.

(R. at 342).

Although he used a cane, it was not necessary for ambulation.
at 342).

(R.

(R.

His skin, lymph nodes, head, face, eyes, ears, nose,

throat, neck, chest, lungs, and heart were normal, but there was
a reducible umbilical hernia in the abdomen.

(R. at 343).

Mr.

Carr had full ranges of motion in his lumbar and cervical spine.
(R. at 343).

Supine active straight leg raise test was zero to

forty degrees; seated was zero to ninety degrees.
There were limitations in his hip rotation.

(R. at 343).

(R. at 343).

Dr.

Mescon found no limitations in Mr. Carr’s ability to sit, stand,
climb, push, pull, or carry.

(R. at 345).

She recommended that

he avoid environmental contaminants because of a history of asthma,
4

and have his blood pressure reassessed by his physician.

(R. at

345).
On July 17, 2013, Mr. Carr saw Jon Sepinski, a physician
assistant, complaining of lower back pain that was aggravated by
bending

and

lifting,

and

alleviated

medications, and physical therapy. 3

by

injections,

(R. at 452).

recorded lumbar spasm and paraspinal tenderness.
Pain

relieving

prescribed.

medications,

(R. at 453).

including

a

pain

Mr. Sepinski
(R. at 453).

topical

cream,

were

Mr. Carr returned for a visit on August

14, 2013, complaining of intermittent lower back pain of moderate
to severe intensity, which was aggravated by “daily activities,”
bending,

lifting,

sitting,

and

standing,

and,

as

before,

alleviated by injections, medication, and therapy. (R. at 450).
Again,

Mr.

Sepinski

recorded

tenderness,

and,

again,

prescribed.

(R. at 450).

a

pain

lumbar

spasm

relieving

and

paraspinal

medications

were

Mr. Carr stopped receiving cortisone

injections in September 2013, because the pain management provider
at La Casa de Salud left.

(R. at 449).

On July 17, 2014, Dr. Cindy Grubin performed a physical
examination of Mr. Carr for a social services organization known
as FEGS.

3

(R. at 397-417).

She noted episodic sharp lower back

It appears that Mr. Carr had also visited the provider on
July 16, 2013. (R. at 452).
5

pain of moderate severity, but found no exertional, respirational,
or environmental limitations.

(R. at 409-12).

Nurse Practitioner Carline Lamour Ocean filled out a Medical
Source Statement on September 29, 2014.
noted

that

Mr.

Carr

had

attended

(R. at 441-47).
monthly

She

thirty-minute

appointments geared to managing his chronic lower back pain.
at 441).

(R.

In addition to lower back pain, she diagnosed bulging

discs at L4/L5 and L5/S1, and she noted resulting tenderness and
reduced range of motion in his lower back.

(R. at 441).

Nurse

Practitioner Ocean opined that Mr. Carr’s pain often interfered
with his attention and concentration and that he was moderately
limited in his ability to deal with stress.

(R. at 442).

She

assessed him as being able to sit up to fifteen minutes at a time
with a fifteen minute interval of standing and walking about, but
he could not sit for more than one hour in an eight-hour day.
at 442-43).

(R.

Mr. Carr could stand or walk about for thirty minutes

at a time with a thirty minute break to recline or lie down, but
he could not stand or walk about for more than one hour in an
eight-hour day.

(R. at 443-44).

In addition, in an eight-hour

day, Mr. Carr’s pain would necessitate rest in addition to normal
rest and meal breaks.

(R. at 444).

His ability to lift and carry

one to five pounds was unrestricted, as was his fingering ability.
(R. at 445-46).

He could frequently lift and carry six to ten
6

pounds, balance, engage in forward and backward flexion of the
neck, and rotate his neck to the right and to the left.
445-46).

(R. at

He could occasionally lift eleven to twenty pounds,

stoop, reach, and handle.

(R. at 444-45).

twenty-one to fifty pounds.

(R. at 444).

He could never lift

The nurse practitioner

estimated that Mr. Carr’s condition would result in his absence
from work more than three times per month.
condition had persisted since October 2013.
2.

(R. at 447).

His

(R. at 447).

Psychiatric Impairments

In January 2013, FEGS evaluated Mr. Carr in connection with
his public assistance case.

(R. at 384; 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. Memo.”) at 6 & n.4).

Mr. Carr reported anxiety and a

history of drug use and hearing voices.

(R. at 385, 397).

He

also stated that he had been receiving psychiatric treatment from
Dr. Carl St.-Preux at La Casa de Salud.

(R. at 397).

The first medical record from Dr. St.-Preux is a Wellness
Plan Report dated February 12, 2013. 4

4

(R. at 432-33).

It appears

The document contains a notation -- “3 months” -- which
might indicate the number of months he had been receiving treatment
from Dr. St.-Preux, especially as (1) he began receiving treatment
from the psychiatrist prior to January 2013 (R. at 397), and (2)
in April 2013, Dr. St.-Preux estimated that Mr. Carr’s then-current
symptoms had lasted for the past six months -- that is, from
approximately three months prior to the February appointment (R.
7

to reflect two diagnoses: the first is anxiety disorder and the
second is illegible.

(R. at 432).

Dr. St.-Preux found Mr. Carr

alert, cooperative, oriented, well-groomed, coherent, of neutral
mood, and displaying good judgment.

(R. at 432).

delusions or suicidal or homicidal ideation.

He reported no

(R. at 432).

Dr.

St.-Preux listed Mr. Carr’s medications as Klonopin, Paxil, and
Ambien.

(R. at 432).

He opined that Mr. Carr’s condition made

him unable to work for at least twelve months.

(R. at 433).

On April 16, 2013, Dr. St.-Preux completed a psychiatric and
psychosocial impairment questionnaire after examining Mr. Carr.
(R.

at

328-35).

He

diagnosed

“Bipolar

disorder

disorder” and assigned a GAF score of seventy. 5

Manic/Panic

(R. at 328).

He

at 335).
5

The GAF is a psychiatric assessment tool that generates a
numerical representation of a clinician’s judgment as to a
patient’s overall functioning along a continuum of mental health.
See American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 16 (5th ed. 2013) (“DSM-V”). The GAF
was dropped from DSM-V “for several reasons, including its
conceptual lack of clarity . . . and questionable psychometrics in
routine practice.” DSM-V 16. The GAF Scale provides scores from
one (“[p]ersistent danger of severely hurting self or others”) to
one hundred (“[s]uperior functioning in a wide range of
activities”). American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders 34 (4th ed. text rev. 2000)
(“DSM-IV”). Scores eighty-one to one hundred indicate minimal or
no symptoms; the seventy-one to eighty range is for patients
responding appropriately to stress; patients within the sixty-one
to seventy bracket have mild symptoms or some difficulty in social
or occupational settings but generally function well; patients
with a GAF between fifty-one and sixty are described as having
moderate
symptoms,
or
moderate
difficulty
in
social
or
8

identified a number of symptoms from a checklist: poor memory,
appetite disturbance with weight change, perceptual disturbances,
sleep disturbance, personality change, mood disturbance, emotional
lability, delusions or hallucinations, manic syndrome, recurrent
panic attacks, psychomotor agitation or retardation, persistent
irrational

fears,

generalized

paranoia

persistent

or

inappropriate

anxiety,

feelings

suspiciousness,
of

guilt

or

worthlessness, difficulty thinking or concentrating, hostility and
irritability, and suicidal ideation or attempts.
The

primary

symptoms

were

depressed

mood,

(R. at 329).

anxiety,

elation, labile affect, hallucinations, and delusions.
330).

paranoia,
(R. at

The most frequent were panic attacks, hallucinations, and

paranoia.

(R. at 330).

According to Dr. St.-Preux, Mr. Carr was markedly limited in
all areas of understanding and memory; all areas of sustained
concentration and persistence; most areas of social interaction
(he was moderately limited in the ability to ask simple questions
or

request

assistance

and

the

ability

to

maintain

socially

appropriate behavior and to adhere to basic standards of neatness
and cleanliness); and most areas of adaptation (he was moderately
limited in the ability to travel to unfamiliar places or use public

occupational functioning; a GAF score of forty-one to fifty
indicates “[s]erious symptoms . . . [or] any serious impairment in
social, occupational, or school functioning.” DSM-IV 34.
9

transportation).

(R. at 331-33).

Dr. St.-Preux also opined that

Mr. Carr experienced episodes of deterioration or decompensation
which would exacerbate his symptoms or cause him to withdraw from
work situations.

(R. at 333).

Mr. Carr treated his symptoms

(which were expected to last at least twelve months) with Seroquel,
Paxil, Klonopin, and Ambien.

(R. at 333-34).

Finally, Dr. St.-Preux wrote that Mr. Carr’s anxiety and panic
disorder exacerbated his lower back pain, that he was unable to
work because of his “severe psychiatric condition,” and that his
condition would require him to be absent from work more than three
times per month. 6

(R. at 334-35).

Psychologist

David

Mahony

performed

psychiatric evaluation on June 17, 2013.

a

consultative

(R. at 350-53).

Mr.

Carr reported symptoms of depression including depressed mood,
hopelessness, irritability, social withdrawal, and a history of
suicidal ideation, but he “was unable to clarify any symptoms of
mania, indicating he does not have bipolar disorder.”
350).

(R. at

He also reported feeling scared and hearing voices telling

him to “hurt somebody.”
“cognitive

defects

including

short-term

6

(R. at 350-51).

secondary
memory

to

his

deficits,

Dr. Mahony noted

psychiatric
difficulty

symptoms,

learning

new

Mr. Carr apparently visited Dr. St.-Preux again on May 23,
2013 (R. at 376), but there is no record of that visit or any
follow-up visits until August 20, 2013 (R. at 381).
10

material, and executive functioning deficits.”

(R. at 351).

Upon

examination, Dr. Mahony found Mr. Carr acceptably groomed, with
appropriate eye contact and normal posture and motor behavior.
(R. at 351).

Speech and thought processes were normal, but he had

a

affect,

depressed

sensorium.
352).

dysthymic

(R. at 351-52).

mood,

and

“mildly

impaired”

He was not fully oriented.

(R. at

His attention and concentration were impaired, as were his

recent and remote memory skills.

(R. at 352).

His cognitive

functioning was below average, with a limited general fund of
information, and his insight was poor.
was appropriate.

(R. at 352).

His judgment

(R. at 352).

Dr. Mahony found that Mr. Carr could follow simple directions,
perform

simple

tasks

independently,

maintain

attention

concentration, and maintain a regular schedule.

and

(R. at 352).

There were mild limitations in his ability to relate to others and
deal with stress.
learning

new

(R. at 352).

tasks,

appropriate decisions.

performing
(R. at 352).

He had marked limitations
complex

tasks,

and

making

Dr. Mahony asserted that Mr.

Carr’s symptoms would interfere with his ability to function on a
daily basis.

(R. at 353).

He diagnosed moderate major depressive

disorder of atypical type, and he also stated, “Rule out substance
induced, persisting dementia.”

(R. at 353).

He noted that Mr.

Carr’s substance abuse status was “current[ly] [] unknown.”
11

(R.

at 353).

Dr. Mahony recommended continued psychiatric treatment,

a neurological exam, and confirmation of his substance abuse
status.

(R. at 353).

He found Mr. Carr’s prognosis “poor” noting

“severe cognitive deficits” that made it difficult for him to
function and prevented him from managing his own funds.

(R. at

353).
Dr. St.-Preux prepared a psychosocial evaluation on August
20, 2013.

(R. at 381).

Mr. Carr was appropriately dressed and

groomed, with normal motor activity, normal speech and thought
content, and good insight and judgment.

(R. at 382-83).

His

affect and mood were “congruent to situations,” and he was fully
oriented and cooperative.

(R. at 382-83).

There was “some

circumstantialities and tangentiality” to his thought form.
at 382).

(R.

Dr. St.-Preux diagnosed bipolar disorder and assigned a

GAF of sixty-five, noting it was the “[h]ighest [l]evel in [the]
[p]ast year.”

(R. at 383).

independent living.”
On

March

physician

20,

reported

He “deemed [Mr. Carr] appropriate for

(R. at 383).
2014,
that

FEGS

noted

Mr.

Carr

that
had

Mr.
a

Carr’s

substantial

disability and could not work for twelve months.

plaintiff

presented

with

anxious

and

mental

(R. at 397).

Mr. Carr visited Dr. St.-Preux on May 19, 2014.
The

treating

(R. at 376).

fearful

thoughts,

depressed mood, excessive worry, hallucinations, and paranoia.
12

(R. at 376).

He had a decreased need for sleep, difficulty falling

and staying asleep, and fatigue.
noted

Mr.

homicidal

Carr’s

history

thoughts.

of

(R.

psychomotor

skills,

attention,

reasoning,

drug

at

memory,

(R. at 376).
abuse

377).

and

control,

of

Mr.

suicidal

and

Carr’s

behavior,

intellect,

sensorium,

impulse

Dr. St.-Preux

attitude,

judgment,

self-perception were within normal tolerances.

insight,

and

(R. at 380).

However, Dr. St.-Preux described Mr. Carr’s speech as pressured,
his affect as labile and expansive, his mood as labile and anxious,
and his thought processes as “show[ing] flight of ideas.”
380).

(R. at

He also noted auditory hallucinations, delusions, and

paranoia.

(R.

at

380).

He

diagnosed

the

plaintiff

with

“[b]ipolar 1 disorder,” opiate dependence (continuous), and panic
disorder, and assigned a GAF of sixty-five.

(R. at 380).

Dr.

St.-Preux prescribed Seroquel and Klonopin and discontinued Ambien
and Paxil.
On

(R. at 380).

July

17,

2014,

Dr.

Grubin

performed

examination along with a physical examination.
found

that

the

plaintiff

had

tolerating stress and crowds.
stress work environment.

difficulty

(R. at 411).

(R. at 412).

a

psychological

(R. at 409).

She

concentrating

and

She suggested a low

She further diagnosed

unstable bipolar disorder and panic disorder without agoraphobia,
and found that both conditions impacted employment.
13

(R. at 415).

According to Dr. Grubin, the plaintiff’s mental health disorder
prohibited gainful employment.

(R. at 417).

diagnoses and findings on July 20, 2014.
Dr.

St.-Preux

September 25, 2014.
fearful

thoughts,

difficulty
paranoia.

falling

completed

decreased
and

need

staying

(R. at 420-22).

Medical

(R. at 434, 439).

(R. at 436).

Ambien, and Paxil.

a

for

There were similar

Source

Statement

on

Mr. Carr presented with
sleep,

asleep,

depressed

mood,

hallucinations,

and

His medications were Seroquel, Klonopin,

(R. at 436).

The statement consisted, in part, of a checklist of symptoms. 7
(R. at 435).

Dr. St.-Preux found that Mr. Carr experienced the

following symptoms with severe intensity:
disturbance,

recurrent

panic

attacks,

concentrating, and manic syndrome.

poor memory, sleep

difficulty

(R. at 435).

thinking

or

The following

symptoms were of moderate intensity: personality change, mood
disturbance, emotional lability, substance dependence, anhedonia
or pervasive loss of interest, feelings of guilt or worthlessness,
social

withdrawal

or

isolation,

decreased

energy,

intrusive

recollections of a traumatic experience, somatization unexplained
by organic disturbance, and pathological dependence or passivity.
(R. at 435).

7

Finally, Mr. Carr had the following mild symptoms:

Dr. St.-Preux marked each applicable symptom with one, two,
or three checkmarks. (R. at 435). I infer that the number of
check marks indicates the severity of the symptom.
14

appetite disturbance with weight change, paranoia or inappropriate
suspiciousness,

suicidal

ideation

or

attempts,

time

or

place

disorientation, generalized persistent anxiety, and hostility and
irritability.

(R. at 435).

Dr. St.-Preux found that Mr. Carr had

marked or extreme loss of functionality in all areas related to
understanding, remembering, and carrying out instructions, as well
as all areas related to the ability to respond appropriately to
supervision, coworkers, and work pressure in a work environment.
(R. at 437-38).
Dr.

St.-Preux

assessed

slight

restriction

in

Mr.

Carr’s

activities of daily living; marked difficulties in maintaining
social

functioning;

constant

deficiencies

of

concentration,

persistence, or pace resulting in failure to complete tasks in a
timely

manner;

and

continual

episodes

of

decompensation in work or work-like settings.

deterioration

or

(R. at 438-39).

He

opined that these restrictions had lasted since the 1980s.

(R.

at 439).
C.

Procedural History

As noted above, Mr. Carr filed an application for DIB on April
8, 2013 (claiming a disability onset date of June 1, 2011) and an
application for SSI on May 2, 2013 (claiming a disability onset
dated of January 1, 2013), asserting that he was afflicted with
bipolar

disorder,

anxiety,

depression,
15

asthma,

high

blood

pressure, back pain, GERD, and marcoglobulinemia.

(R. at 185,

192, 214).
Mr. Carr’s applications were denied initially on September 5,
2013,

after

which

Mr.

Carr

requested

Administrative Law Judge (“ALJ”).

a

hearing

(R. at 121-30).

before

an

ALJ Wallace

Feuer presided over the hearing on October 22, 2014, during which
Mr. Carr was represented by counsel. (R. at 32-94).

The plaintiff

described his back pain as a stiffness in the lower middle of his
back,

which

Percocet.

was

relieved

(R. at 62).

with

medication

--

specifically,

The pain limited his ability to walk to

approximately one-half of a block at a time.

(R. at 76-77).

Mr. Carr reported taking Klonopin and Paxil for depression,
Ambien to help him sleep, and an inhaler for asthma.
64).

(R. at 63-

Mr. Carr asserted that his psychiatric medication “really

help[ed]” with panic attacks, and that he only felt “nervous [when
he was] on a train with a lot of people.”

(R. at 69).

The

medication also alleviated auditory hallucinations telling him “to
do bad things” so that he had them approximately twice per week
only, and visual hallucinations which he had only once per week.
(R. at 71-72).

The plaintiff also described trouble concentrating

and memory problems.

(R at 78-79).

The ALJ issued a decision on April 3, 2015, finding that the
plaintiff was not disabled under the Act.
16

(R. at 14).

The Appeals

Council denied review on June 23, 2016.
D.

(R. at 1).

Development of the Record

The Commissioner requested information from La Casa de Salud,
which, on the second request, provided certain records.
364).

(R. at

At the hearing before ALJ Feuer, plaintiff’s counsel stated

that he wanted to submit additional treatment notes from Nurse
Practitioner Ocean and her supervising physician.

(R. at 37).

The ALJ noted that the treatment notes from Dr. St.-Preux in the
record were limited, and he asked counsel to procure any additional
notes.

(R. at 38).

Finally, the ALJ asked counsel to secure

additional records from Mr. Carr’s physical therapist and from the
health care provider who gave him back injections.

(R. at 86-88).

In January 2015, approximately two and one-half months after the
hearing, ALJ Feuer wrote to plaintiff’s counsel noting that counsel
had not provided any additional records and granting an additional
ten days to submit evidence or request an extension.
There was no response.

(R. at 312).

(Def. Memo. at 13).

Analytical Framework
A.

Determination of Disability

A claimant is disabled under the Social Security Act and
therefore entitled to disability benefits if he can demonstrate,
through medical evidence, that he is unable to “engage in any
substantial

gainful

activity

by
17

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. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A); Arzu v.
Colvin, No. 14 Civ. 2260, 2015 WL 1475136, at *7 (S.D.N.Y. April
1, 2015).

The disability must be of “such severity that [the

claimant] 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.”

42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

To determine whether a claimant is entitled to disability
benefits,

the

Commissioner

employs

a

five-step

sequential

analysis.

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

First,

the claimant must demonstrate that he is not currently engaging in
substantial gainful activity.
(b), 416.920(a)(4)(i), (b).

20 C.F.R. §§ 404.1520(a)(4)(i),

Second, the claimant must prove that

he has a severe impairment that significantly limits his physical
or mental ability to perform basic work activities.
404.1520(a)(4)(ii), (c), 416.920(a)(4)(ii), (c).

20 C.F.R. §§
Third, if the

impairment is listed in what are known as “the Listings,” see 20
C.F.R. Part 404, Subpt. P, App. 1, or is the substantial equivalent
of a listed impairment, the claimant is automatically considered
disabled.

20

C.F.R.

§§
18

404.1520(a)(4)(iii),

(d),

416.920(a)(4)(iii), (d).

Fourth, if the claimant is unable to

make the requisite showing under step three, he must prove that he
does not have the residual functional capacity to perform his past
work.
(e).

20 C.F.R. §§ 404.1520(a)(4)(iv), (e), 416.920(a)(4)(iv),
Fifth, if the claimant satisfies his burden of proof on the

first

four

steps,

burden

that

demonstrate

the
there

is

shifts

to

alternative

the

Commissioner

substantial

to

gainful

employment in the national economy that the claimant can perform.
20

C.F.R.

§§

404.1520(a)(4)(v),

(g),

416.920(a)(4)(v),

(g),

416.960(c); Longbardi v. Astrue, No. 07 Civ. 5952, 2009 WL 50140,
at *23 (S.D.N.Y. Jan. 7, 2009) (citing Rosa v. Callahan, 168 F.3d
72, 77 (2d Cir. 1999), and Bapp v. Bowen, 802 F.2d 601, 604 (2d
Cir. 1986)).

In order to determine whether the claimant can

perform other substantial gainful employment, the Commissioner
must

consider

objective

medical

facts,

diagnoses

or

medical

opinions based on these facts, subjective evidence of pain or
disability, and the claimant’s educational background, age, and
work experience.
B.

Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999).

Judicial Review

Under Rule 12(c) of the Federal Rules of Civil Procedure, a
party is entitled to judgment on the pleadings if he establishes
that no material facts are in dispute and that he is entitled to
judgment as a matter of law.

See Burnette v. Carothers, 192 F.3d
19

52, 56 (2d Cir. 1999); Morcelo v. Barnhart, No. 01 Civ. 743, 2003
WL 470541, at *4 (S.D.N.Y. Jan. 21, 2003).
The Social Security Act provides that the Commissioner’s
findings “as to any fact, if supported by substantial evidence,
shall be conclusive.”
Commissioner’s

42 U.S.C. § 405(g).

decision

“may

set

A court reviewing the

aside

a

decision

of

the

Commissioner if it is based on legal error or if it is not supported
by substantial evidence.”

Geertgens v. Colvin, No. 13 Civ. 5133,

2014 WL 4809944, at *1 (S.D.N.Y. Sept. 24, 2014) (quoting Hahn v.
Astrue, No. 08 Civ. 4261, 2009 WL 1490775, at *6 (S.D.N.Y. May 27,
2009)); see also Longbardi, 2009 WL 50140, at *21.
Judicial review, therefore, involves two levels of inquiry.
First, the court must decide whether the Commissioner applied the
correct legal standard.

Tejada v. Apfel, 167 F.3d 770, 773 (2d

Cir. 1999); Calvello v. Barnhart, No. 05 Civ. 4254, 2008 WL
4452359, at *8 (S.D.N.Y. April 29, 2008).

Second, the court must

decide whether the ALJ’s decision was supported by substantial
evidence.

Tejada, 167 F.3d at 773; Calvello, 2008 WL 4452359, at

*8.

determining

“In

whether

substantial

evidence

exists,

a

reviewing court must consider the whole record, examining the
evidence from both sides, because an analysis of the substantiality
of the evidence must also include that which detracts from its
weight.”

Longbardi, 2009 WL 50140, at *21 (citing Brown, 174 F.3d
20

at 62, and Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)).
Substantial
scintilla.

evidence

in

this

context

is

“more

than

a

mere

It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”

Hahn, 2009 WL

1490775, at *6 (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)).
Analysis
A.

The ALJ’s Decision

ALJ Feuer analyzed the plaintiff’s claim pursuant to the fivestep sequential evaluation process and concluded that he was not
disabled on or after his claimed disability onset dated of January
1, 2013.

(R. at 19-26).

He first found that Mr. Carr met the

insured status requirement of the Act through December 31, 2017.
(R. at 19).

He then determined that the plaintiff had not engaged

in substantial gainful activity since the alleged onset date.
at 19).

(R.

At step two, the ALJ found that Mr. Carr had impairments

-- lower back pain and bipolar disorder -- that caused more than
minimal limitation on his ability to perform basic work activities.
(R. at 19).

He also noted that Mr. Carr’s asthma and high blood

pressure were not severe impairments within the meaning of the
Act.

(R. at 19-20).
At step three, the ALJ found that neither of the plaintiff’s

impairments, either individually or in combination, met or was the
21

equivalent in severity of the relevant impairments described in
Listing 1.04 (disorders of the spine) or Listing 12.04 (affective
disorders).

(R. at 20); see 20 C.F.R. Part 404, Subpt. P, App.

1, §§ 1.04, 12.04.

Addressing Listing 12.04, the ALJ determined

that the plaintiff did not have at least two of the following:
marked

restrictions

difficulties

in

of

activities

maintaining

of

social

daily

living;

functioning;

marked
marked

difficulties in maintaining concentration, persistence, or pace;
or repeated episodes of decompensation, each of extended duration.
(R. at 20-21).

Rather, he found that the plaintiff’s limitations

were, at worst, “moderate.”

(R. at 20-21).

He also found that

the medical evidence did not indicate (1) that Mr. Carr’s mental
impairments resulted in repeated episodes of decompensation, (2)
a residual disease process resulting in marginal adjustment, or
(3)

a

history

of

inability

to

supportive living arrangement.

function

outside

of

a

highly

(R. at 21); see 20 C.F.R. Part

404, Subpt. P, App. 1, § 12.04(c).
Next, ALJ Feuer determined that Mr. Carr had the residual
functional capacity to perform medium work with the following
limitations: he could only occasionally climb ramps and stairs,
kneel, crouch, and crawl; he had to avoid concentrated exposure to
dust and other pulmonary irritants; he would be limited in his

22

exposure to co-workers, supervisors, and the public; and he could
perform only simple, routine, and repetitive tasks.

(R. at 21).

Regarding Mr. Carr’s physical limitations, the ALJ noted that
the physical therapy he received in December 2012 and January 2013
appeared to alleviate his back pain and tenderness.
In

July

2013,

tenderness

but

restrictions
rotation;

the
a

on

plaintiff
negative

flexion,

normal

lower

had

lumbar

straight
extension,

extremity

leg
or

spasm

(R. at 22).

and

raising

test

lateral

strength;

and

paraspinal
and

no

bending

or

no

hip

crepitus, tenderness, instability, swelling, or effusion.
22).

Moreover,

therapy.

(R.

he

at

reported
22).

“essentially unchanged.”

An

improvement

with

examination

in

(R. at 22).

pain,
(R. at

medication

August

2013

and
was

The ALJ noted that although

a letter from an administrator at La Casa de Salud indicated that
Mr. Carr received monthly pain treatments, there were no medical
records to support this other than those mentioned.

(R. at 22).

The ALJ gave some weight to the opinion of consultative examiner
Dr. Mescon, noting that her assessment that Mr. Carr had no
limitations in his ability to sit, stand, push, pull, or carry
heavy objects and that her recommendation that he avoid pulmonary
irritants was “generally consistent with her examination findings
and the very limited treating source record.”

(R. at 23).

He

gave little weight to Nurse Practitioner Ocean’s medical source
23

statement form from September 2014, which assessed significant
limitations in Mr. Carr’s ability to stand and walk or sit during
an eight-hour workday, and opined that he would frequently miss
work.

(R. at 25).

As for Mr. Carr’s psychiatric limitations, the ALJ gave little
weight to Dr. St.-Preux’s opinion from February 2013 that Mr. Carr
was unable to work for at least twelve months, as well as his
assessment

from

April

2013

that

the

plaintiff

had

marked

limitations in almost all areas of mental functioning; he also
gave little weight to Dr. St.Preux’s similar conclusions from
September 2014.

(R. at 24).

The ALJ found these opinions

inconsistent with “largely normal examination findings in August
2013” and with GAF scores of seventy and sixty-five in April and
August 2013.

(R. at 24).

In addition, he gave little weight to

Dr. Grubin’s July 2014 assessment that the plaintiff’s mental
limitations prohibited him from gainful employment, finding it
unsupported by examination findings.

(R. at 25-26).

The ALJ gave

some weight to consultative examiner Dr. Mahony, who found no
limitations in Mr. Carr’s ability to follow and understand simple
directions, perform simple tasks independently, maintain attention
and concentration on such tasks, and maintain a regular schedule.
(R. at 23-24).

The ALJ found these conclusions consistent with

examination findings and with Dr. Mahony’s assigned GAF score of
24

sixty-five.

(R. at 23-24).

Similarly, ALJ Feuer gave some weight

to non-examining consultant E. Kamin who in September 2013 found
that the plaintiff had mild limitations in daily living activities
and social functioning, and moderate limitations in maintaining
concentration, persistence, or pace.

(R. at 24).

At step five, relying on the testimony of a vocational expert,
the ALJ found that a person of Mr. Carr’s age, education, work
experience, and residual functional capacity would

be

able

to

perform his past relevant work as a meat packer, even with the
additional restriction that limited him to performing simple,
repetitive tasks.

(R. at 26).

Therefore, ALJ Feuer found that

Mr. Carr was not disabled.
B.

Duty to Develop the Record

“Before determining whether the Commissioner’s conclusions
are supported by substantial evidence,” a court “must first be
satisfied that the claimant has had a full hearing under the
. . . regulations and in accordance with the beneficent purposes
of the [Social Security] Act.”

Moran v. Astrue, 569 F.3d 108, 112

(2d Cir. 2009) (alterations in original) (quoting Cruz v. Sullivan,
912

F.2d

8,

11

(2d

Cir.

1990)).

“Even

when

a

claimant

is

represented by counsel, it is the well-established rule in [the
Second] [C]ircuit ‘that the social security ALJ, unlike a judge in
a trial, must on behalf of all claimants . . . affirmatively
25

develop the record in light of the essentially non-adversarial
nature of a benefits proceeding.’”

Id. (third alteration in

original) (quoting Lamay v. Commissioner of Social Security, 562
F.3d 503, 508–09 (2d Cir. 2009)); see also Perez v. Chater, 77
F.3d 41, 47 (2d Cir. 1996) (“Because a hearing on disability
benefits is a non-adversarial proceeding, the ALJ generally has an
affirmative obligation to develop the administrative record.”).
Generally,

“if

a

physician’s

report

is

believed

to

be

insufficiently explained, lacking in support, or inconsistent with
the physician’s other reports, the ALJ must seek clarification and
additional

information

.

.

.

to

rejecting the doctor’s opinion.”

fill

any

clear

gaps

before

Ureña-Perez v. Astrue, No. 06

Civ. 2589, 2009 WL 1726217, at *29 (S.D.N.Y. Jan. 6, 2009), report
and recommendation adopted as modified, 2009 WL 1726212 (S.D.N.Y.
June 18, 2009).
treating

Where the gaps or inconsistencies concern a

physician’s

opinions,

and

in

particular

those

treating psychiatrist, this duty is especially crucial.

of

a

See,

e.g., Craig v. Commissioner of Social Security, __ F. Supp. 3d __,
__, 2016 WL 6885216, at *13 (S.D.N.Y. 2016) (“The duty to develop
the record is particularly important where an applicant alleges 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.”
26

(quoting

Merriman

v.

Commissioner of Social Security, No. 14 Civ. 3510, 2015 WL 5472934,
at *19 (S.D.N.Y. Sept. 16, 2015))); Martinez v. Colvin, No. 15
Civ. 1596, 2016 WL 3681426, at *9 (S.D.N.Y. June 15, 2016) (noting
that treating physician rule, which generally gives more weight to
opinions of treating sources, “is even more relevant in the context
of mental disabilities, which by their nature are best diagnosed
over time” (quoting Lopez-Tiru v. Astrue, No. 09 CV 1638, 2011 WL
1748515, at *4 (E.D.N.Y. May 5, 2011))).

Thus, “failure to develop

conflicting medical evidence from a treating physician is legal
error requiring remand.”

Concepcion v. Colvin, No. 12 Civ. 6545,

2014 WL 1284900, at *13 (S.D.N.Y. March 31, 2014) (quoting Miller
v. Barnhart, No. 03 Civ. 2072, 2004 WL 2434972, at *8 (S.D.N.Y.
Nov. 1, 2004)).
Here, ALJ Feuer remarked on the dearth of treatment notes
from Dr. St.-Preux, Mr. Carr’s treating psychiatrist.

(R. at 38).

Indeed, the ALJ commented that he “need[ed] [those] treatment notes
so that [he could] weigh whether there’s a foundation for [Dr.
St.-Preux’s] opinions,” such as “the [September 2014] medical
source statement that was submitted from [Dr. St.-Preux].”
at 38).

(R.

The ALJ was similarly aware of the absence of treatment

notes from Nurse Practitioner Ocean or her supervising physician,
as well as records of Mr. Carr’s physical therapy.
88, 93-94).

(R. at 37, 87-

That is borne out in the ALJ’s opinion, which comments
27

on the “very limited” medical record.
ALJ

Feuer

gave

little

weight

to

Dr.

(R. at 22-25).
St.-Preux’s

Moreover,

opinions

in

February 2013, April 2013, and September 2014, because they were
inconsistent both with his August 2013 findings and with the GAF
scores assigned in April and August 2013.

(R. at 24).

That is,

the ALJ noted internal inconsistencies in the April 2013 record,
as well as inconsistencies between the August 2013 record and the
opinions of February 2013, April 2013, and September 2014.

He

also discounted Nurse Practitioner Ocean’s September 2014 opinion
“because

it

is

unsupported

by

treatment

notes

and

broadly

inconsistent with the overall medical evidence of record.”
at 25).

(R.

This, then, appears to be a situation in which the lack

of medical records was central to the ALJ’s decision.
The Commissioner argues that “the ALJ attempted to fill th[e]
clear gap in the record before deciding the case” by asking Mr.
Carr’s counsel at the hearing to obtain the records and later
“giving him another opportunity to provide the records” via the
January 2015 letter.

(Def. Memo. at 19).

But the ALJ has an

“affirmative” duty to develop the record that is “independent” of
the plaintiffs’ duty to provide evidence.

See, e.g., Harris v.

Colvin, No. 11-CV-1497, 2013 WL 5278718, at *6, 8 (N.D.N.Y. Sept.
18, 2013).

Thus, courts in this Circuit have held that an ALJ

cannot rely on the plaintiff (or his counsel) to provide additional
28

medical records.

See, e.g., Corona v. Berryhill, No. 15 CV 7117,

2017 WL 1133341, at *16 (E.D.N.Y. March 24, 2017) (“The ALJ’s
discussion on the record with Plaintiff’s counsel regarding Dr.
Chaudhry’s treatment notes and her decision to leave the record
open for thirty days for the submission of his records were not
sufficient to satisfy her duty because the ALJ took no further
action to ensure that the record was complete, even though the ALJ
was well aware that the record request had been outstanding since
September 24, 2014, over two months before the hearing.” (citations
omitted) (footnote omitted)); Glast v. Astrue, No. 11 CV 5814,
2013 WL 5532696, at *10 (E.D.N.Y. Sept. 30, 2013) (“That the ALJ
requested

information

from

Plaintiff’s

attorney

regarding

two

treating physicians and received nothing ‘does not relieve the ALJ
of his duty to fully develop the record.’” (quoting Newsome v.
Astrue, 817 F. Supp. 2d 111, 137 (E.D.N.Y. 2011))); Outley v.
Astrue, No. 09-CV-141, 2010 WL 3703065, at *4 (N.D.N.Y. Aug. 26,
2010) (where counsel did not provide records as requested, ALJ had
duty to “obtain the necessary information himself”).

That is

especially true where, as here, the records “are central to the
disability determination.”
WL

4708515,

at

*7-8

Davis v. Colvin, No. 15-CV-479, 2016

(W.D.N.Y.

Sept.

9,

2016)

(“Given

the

significance of the missing records and the impact their absence
had on the ALJ’s decision, the ALJ should have tried to obtain the
29

records

on

counsel.

his

own

after

not

hearing

from

[the

plaintiff’s]

By not doing so, the ALJ created a gap in the record

that necessitates remand.”); see also Corona, 2017 WL 1133341, at
*16 (“Because Dr. Chaudry was the only treating psychiatrist to
provide opinions as to Plaintiff’s mental health limitations, and
the ALJ identified missing records representing a year of monthly
treatment, the ALJ cannot discredit his opinion based on lack of
supporting
treatment

evidence
notes

to

without

first

determine

obtaining

whether

his

Dr.

Chaudry’s

conclusions

are

supported.” (footnote omitted)).
To be sure, in two non-precedential opinions (one of which
is not citable pursuant to Second Circuit Rule 31.1.1(b)(2)) the
Court of Appeals indicated that it is not always necessary for the
ALJ to pursue missing records on his own.

See Frye ex rel. A.O.

v Astrue, 485 F. App’x 484, 488 n.2 (2d Cir. 2012); Jordan v.
Commissioner of Social Security, 142 F. App’x 542 (2d Cir. 2005).
However, in those cases, there was significantly more activity
connected with the provision of necessary evidence than there was
here.

In Frye, the Second Circuit recognized that the duty to

develop the record was fulfilled where, after the ALJ followed up
with the claimant’s counsel, the attorney responded with a request
for more time to submit additional evidence, which the ALJ granted.
See Frye, 485 F. App’x at 488 n.2.
30

And, indeed, in that case, the

claimant’s

counsel

considered.

submitted

the

evidence,

which

the

ALJ

See Frye ex rel. A.O. v. Commissioner of Social

Security, No. 10-CV-98, 2010 WL 6426346, at *16 (N.D.N.Y. Nov. 12,
2010).

In

Jordan,

after

the

ALJ

contacted

the

claimant’s

attorney, the attorney responded that there was “nothing further
to add” to the record.

Jordan, 142 F. App’x at 543.

Thus, in

those cases, either (1) additional records were actually submitted
or (2) the ALJ was assured that no more records were forthcoming.
Cf. Mercado v. Colvin, No. 15 Civ. 2283, 2016 WL 3866587, at *16
n.42 (S.D.N.Y. July 13, 2016) (noting that, in general, where
medical record is incomplete, “the ALJ should reach out to th[e]
treating

source

for

clarification

and

additional

evidence”

(quoting Villarreal v. Colvin, No. 13 Civ. 6253, 2015 WL 6759503,
at *21 (S.D.N.Y. Nov. 5, 2015) (collecting cases))).
It is clear that the ALJ must make “every reasonable effort”
to fully and fairly develop the record, taking into account the
circumstances of the case.

Devora v. Barnhart, 205 F. Supp. 2d

164, 175 (S.D.N.Y. 2002) (quoting Perez, 77 F.3d at 47); see also
Outley, 2010 WL 3703065, at *4.

Sometimes, this will require more

than keeping the record open and following-up with counsel.

For

example, in Glast, “the ALJ asked counsel to ‘see if there’s
anything out there we don’t have’ and left the record open for two
weeks.”

2013 WL 5532696, at *10.
31

Counsel responded that no

records

were

available

from

one

of

the

claimant’s

physicians, but provided no information about the other.

treating
Id.

The

district court held that the ALJ had not discharged his duty to
develop the record, especially in light of the fact that the ALJ
ultimately

accorded

significant weight.

the

opinion

of

a

non-treating

physician

Id.

Here, the ALJ (1) recognized the lack of records from the
plaintiff’s

treating

sources

(including

his

only

treating

psychiatrist and the primary health care provider treating his
back pain), (2) relied in part on the absence of documents to
devalue the opinions of those sources, (3) banked on counsel
providing the records, and (4) failed to “reach out to th[e]
treating source[s] for clarification and additional evidence,”
Villarreal, 2015 WL 6759503, at *21, when those records were not
forthcoming.

8

That was insufficient. 8

See, e.g., Davis, 2016 WL

Because I recommend remanding for further development of
the record, I cannot address the parties’ arguments regarding
whether the ALJ’s decision was supported by substantial evidence.
See, e.g., Moran, 569 F.3d at 112 (“Before determining whether the
Commissioner's conclusions are supported by substantial evidence,
however, “we must first be satisfied that the claimant has had a
full hearing under the . . . regulations and in accordance with
the
beneficent
purposes
of
the
[Social
Security]
Act.”
(alterations in original) (quoting Cruz, 912 F.2d at 11)); Corona,
2017 WL 1133341 (noting that without fulfilling “threshold duty to
develop the record” ALJ cannot “even begin to discharge his duties
. . . under the treating physician rule” (alteration in original)
(quoting Pabon v. Barnhart, 273 F. Supp. 2d 506, 514 (S.D.N.Y.
2003))); Estrada v. Commissioner of Social Security, No. 13 Civ.
4278, 2014 WL 3819080, at *4 (S.D.N.Y. June 25, 2014) (“In the
32

4708515, at *8; cf. Petrovic v. Commissioner of Social Security,
No. 15 Civ. 2194, 2016 WL 6084069, at *10-11 (S.D.N.Y. Aug. 25,
2016) (ALJ fulfilled duty to develop record where he made four
requests for chiropractic records that were “not [] necessary to
determine plaintiff’s disability under the regulations” but did
not seek unnecessary additional records from hospital or from
physician whose name the plaintiff did not provide); MartinezPaulino v. Astrue, No. 11 Civ. 5485, 2012 WL 3564140, at *14
(S.D.N.Y. Aug. 20, 2012) (duty to develop record discharged where
“Commissioner made seven attempts to obtain the records”).
Conclusion
For these reasons, I recommend denying the Commissioner’s
motion for judgment on the pleadings, granting the plaintiff’s
motion for judgment on the pleadings, and remanding this case to
the

Social

Security

Administration

for

further

proceedings

pursuant to the fourth sentence of 42 U.S.C. § 405(g).
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and
6(d) of the Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from this date to file written objections
to this Report and Recommendation.

Such objections shall be filed

absence of a complete record and a full and fair hearing, the Court
cannot determine whether the ALJ’s conclusions are supported by
substantial
evidence
and
thus
must
remand
for
further
development.”)
33