Velez v. Berryhill
Filing
21
MEMORANDUM AND ORDER granting 15 Motion for Judgment on the Pleadings; denying 19 Motion for Judgment on the Pleadings. Plaintiff Pedro Juan Velez brings this action pursuant to § 205(g) of the Social Security Act (the Act), 42 U.S.C. 67; 405(g), seeking judicial review of a final determination of the Commissioner of Social Security (the Commissioner) denying his application for Disability Insurance Benefits (DIB). Both parties have moved for judgment on the pleadings. Because the Administrative Law Judge (ALJ) failed to provide good reasons for crediting the opinion of a non-examining medical expert over the opinion of plaintiff's treating psychiatrist as to his mental impairments, and gave no reasons at all for re jecting the opinion of plaintiff's primary care physician as to his physical impairments, as further set forth in this Order. For the foregoing reasons, plaintiff's motion is GRANTED, the Commissioner's motion is DENIED, and this action is REMANDED for further proceedings consistent with this Order. (Signed by Magistrate Judge Barbara C. Moses on 9/25/2018) (cf) Transmission to Orders and Judgments Clerk for processing.
USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
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I
DATE FILED: /
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
I
PEDRO JUAN VELEZ,
Plaintiff,
-against-
/:J,,5 f
,I
17-CV-06551 (BCM)
MEMORANDUM AND ORDER
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
BARBARA MOSES, United States Magistrate Judge.
Plaintiff Pedro Juan Velez brings this action pursuant to § 205(g) of the Social Security
Act (the Act), 42 U.S.C. § 405(g), seeking judicial review of a final determination of the
Commissioner of Social Security (the Commissioner) denying his application for Disability
Insurance Benefits (DIB). Both parties have moved for judgment on the pleadings. Because the
Administrative Law Judge (ALJ) failed to provide good reasons for crediting the opinion of a nonexamining medical expert over the opinion of plaintiffs treating psychiatrist as to his mental
impairments, and gave no reasons at all for rejecting the opinion of plaintiffs primary care
physician as to his physical impairments, plaintiffs motion will be granted and the
Commissioner's motion will be denied.
I.
BACKGROUND
A.
Procedural Background
Plaintiff applied for DIB on March 10, 2014, alleging disability since June 28, 2010, due
to depression, "anger issues," and diabetes. See Certified Administrative Record (Dkt. No. 13)
(hereinafter "R. _.") at 267,283. The Social Security Administration (SSA) denied his application
on April 28, 2014. (R. 124.)
Plaintiff requested a hearing before an ALJ on June 11, 2014. (R. 130.) On January 27,
2016 and June 3, 2016, plaintiff appeared in person, with an attorney, before ALJ John J. Barry.
(R. 39-77, 78-99). 1 At the second hearing, vocational expert Dale Pasculli and two medical experts,
Dr. Minh Vu and Dr. Chukwuemeka Efobi, appeared and testified. On September 19, 2016, the
ALJ issued a decision finding that plaintiff was not disabled within the meaning of the Act. (R.
17-38.) Plaintiff timely requested review by the Appeals Council (R. 262-63), but it rejected his
request on June 30,2017, making the ALJ's decision final. (R. 1-6).
B.
Personal Background
Plaintiff was born on May 30, 1961, and was 52 years old on the date of his application.
(R. 100.) He earned his GED in 1976 and then received auto mechanic training. (R. 86-87, 284.)
From 1997 through 2011, plaintiff was employed as a maintenance worker. (R. 284, 309.)
Both plaintiff and his wife, Betty Velez, completed function reports in connection with
plaintiffs applications. Both reports stated that as a result of plaintiffs impairments, he lacked the
energy to groom or feed himself, or do housework, and that he needed reminders to take his
medication. (R. 319-26, 332-37.) They additionally noted that plaintiffs impairments diminished
his ability to tolerate rules and get along with those in authority, and that he had difficulty handling
stress. (R. 325, 336-37.) In a disability report dated June 14, 2014 (R. 342-47), plaintiff stated that
he had become even more depressed as of May 1, 2014, and had suicidal thoughts. (R. 342.)
1
As explained below, the first hearing was adjourned so that the ALJ could obtain additional
records from plaintiffs treating psychiatrist.
2
II.
PLAINTIFF'S MEDICAL HISTORY
A.
Treatment Records
1.
Hudson Valley Hospital
On June 26, 2010, while intoxicated, plaintiff had a confrontation with his wife (who had
just found out that he had a girlfriend), followed by an altercation with his girlfriend, after which
he told his brother (who was with him at the time) that he would drive his car into a wall at high
speed. (R. 392.) When his brother took his keys, plaintiff used a knife to stab himself in the left
forearm and abdomen. (Id.) Plaintiff was arrested, then admitted to Hudson Valley Hospital, where
his wounds were sutured. (R. 401, 403.) While being treated, he told a police officer that he did
not wish to live any longer and asked the emergency room doctor "ifhe would have bled to death"
had he not come to the hospital. (R. 403.) When the doctor responded "no," plaintiff asked "where
he could cut himself to inflict such a wound." (Id.) The next day, plaintiff was admitted to an
inpatient psychiatric program at Westchester Medical Center, which noted that he had a long
history of depression. (R. 392.) Plaintiff stated that he had not intended to commit suicide but
rather to "express his frustration." (Id.) Plaintiff was discharged on June 30, 2010. (R. 388.)
2.
Dr. Kalsang Phuntsok
Treating notes in the record show that from 2009 to 2015 plaintiff was treated by primary
care physician Kalsang Phuntsok, M.D., for hyperlipidemia, hypertension, diabetes, and
medication management related to his depression. (R. 478-529, 539-42, 629-59, 772-84). Dr.
Phuntsok's notes show that plaintiffs diabetes worsened or improved depending on his
compliance with his medication, diet and exercise plans. For example, at plaintiffs annual
examination on July 25, 2014, Dr. Phuntsok noted that his diabetes was poorly controlled due to
"compliance issues," and was also possibly affected by his antipsychotic medications. (R. 644.)
By October 12, 2015, plaintiffs diabetes had improved. (R. 779.) However, on December 7, 2015,
3
Dr. Phunstok again noted "poorly controlled diabetes," due to "non-compliance with care" and
because of his anti-psychotic medication, which was "affecting his sugars." (R. 781, 783.)
Throughout the course of treatment, plaintiff complained of fatigue, which according to Dr.
Phuntsok had an "unclear etiology" but was likely caused by plaintiff's depression and poor
diabetic control. (R. 484.)
3.
Dr. Maurice Haberman
Plaintiff saw psychiatrist Maurice Haberman, M.D. from at least December 2010 through
August 2012 and June 2015 through February 2016. (R. 428-32, 791-793, 799, 809.) Dr.
Haberman's hand-written treatment notes for these periods are in the record, but (other than the
dates of treatment) are largely illegible.
4.
Dr. Silvio Burcesco
Plaintiff began treatment with psychiatrist Sylvio Burcescu, M.D., in April 2016. (R. 826.)
At the initial consultation with a nurse practitioner in Dr. Burcescu's office, he reported that his
prior psychiatrist no longer wanted to work with him after being subpoenaed to produce treatment
notes in his disability case. (R. 826.) Plaintiff also denied suicidal ideation that day, but reported
continuing ideation generally. (Id.) At sessions with Dr. Burcescu on April 12 and May 12, 2016,
plaintiff again denied suicidal (or homicidal) ideation but reported chronic sadness and fatigue. (R.
823, 825.) Dr. Burcescu diagnosed bipolar I disorder (R. 821) and added Wellbutrin to plaintiff's
existing medications (Effexor and Abilify). (R. 823.)
B.
Opinion Evidence
1.
Treating Physician Dr. Kalsang Phuntsok
On December 7, 2015, Dr. Phuntsok completed a Multiple Impairment Questionnaire. (R.
754-60.) Dr. Phuntsok assessed "poorly controlled" type 2 diabetes and depression with psychotic
features. (R. 754.) He listed plaintiff's symptoms as fatigue, depression, and cramping in the lower
4
leg, precipitated by walking. (R. 755.) He opined that plaintiff could lift and carry up to 20 pounds
frequently and 50 pounds occasionally and could sit for eight hours in an eight-hour day. (R. 756.)
However, he noted that plaintiff could only stand or walk for one hour in an eight-hour day. (Id.)
He rated plaintiffs fatigue as 9-10 out of 10 in severity, and stated that his symptoms were likely
to intensify if "placed in a competitive work environment." (R. 758.) Dr. Phunstok opined that
plaintiffs impairments would produce good days and bad days, and plaintiff would need to avoid
pushing and pulling. (R. 760.)
2.
Treating Psychiatrist Dr. Maurice Haberman
On September 28, 2015, Dr. Haberman completed a Psychiatric/Psychological Impairment
Questionnaire. (R. 741-49, 800-808.) 2 Dr. Haberman generally opined that plaintiff had mild to
moderate functional limitations, except with regard to his ability to maintain attention and
concentration for extended periods of time, work in coordination with/or in proximity with others
without being distracted by them, accept instructions and respond appropriately to criticism from
supervisors, get along with co-workers or peers without distracting them or exhibiting behavioral
extremes, and travel to unfamiliar places or use public transportation. (R. 744-47, 803-806.) In
these areas, Dr. Haberman concluded that plaintiff had marked limitations. (Id.) He also opined
that plaintiff was not a malingerer, would have good days and bad days, and would likely be absent
from work more than three times a month. (R. 748-49, 807-808.)
Asked to identify the laboratory or diagnostic tests supporting his opinion, Dr. Haberman
identified the PHQ-9, MDQ, and GAD screening tools (R. 743, 802), and attached completed
2
Dr. Haberman submitted two copies of the Questionnaire, which are identical except that the first
copy stated (incorrectly) that the date of plaintiffs "most recent exam" was September 25, 2012.
(R. 741.) The second copy gave the date of the most recent exam as September 25, 2015. (R. 800.)
5
PHQ-9, MDQ,and GAD forms,3 in his own hand~iting, also dated September 25, 2018. (R. 75052.)
3.
Consultative Examiner Dr. Melissa Antiaris
On March 19, 2014, plaintiff saw psychologist Melissa Antiaris, Psy.D., for a consultative
evaluation. (R. 534-38.) Based on her examination and plaintiffs self-reported medical history,
Dr. Antiaris opined that plaintiff had moderate limitations in maintaining attention and
concentration and a regular schedule, learning and performing complex tasks, making appropriate
decisions, and relating adequately with others, and marked limitations in appropriately dealing
with stress. (R. 537.)
4.
Consultative Examiner Dr. Catherine Pelczr-Wissner
On April 15, 2014, plaintiff saw internist Catherine Pelczar-Wissner, M.D., for a
consultative examination. (R. 623-26.) On examination, Dr. Pelczar-Wissner noted that plaintiff
was obese, could perform only a partial squat, and had limited range of motion in the lumbar spine.
(R. 624-25.) Based on her examination and plaintiffs self-reported medical history, Dr. PelczarWissner opined that plaintiff had moderate restrictions in walking, bending, heavy lifting, and
carrying. (R. 626.)
C.
Additional Medical Evidence
In this Court, plaintiff has submitted additional medical evidence regarding complications
related to a subdural hematoma that was discovered on December 3, 2017 - six months after the
3
The PHQ-9 is a screening tool used to assess the severity of depression. (R. 751.) The Mood
Disorder Questionnaire (MDQ) is used to screen for bipolar disorder. See R. Hirschfeld, "The
Mood Disorder Questionnaire: A Simple, Patient-Rated Screening Instrument for Bipolar
Disorder," Primary Care Companion J Clinical Psychiatry (2002), available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3 l4375/ (last visited September 24, 2018). The
Generalized Anxiety Disorder (GAD) test is a screening tool used to assess the severity of anxiety.
(R. 750.)
6
Appeals Council rendered its decision. Pl. Mem. (Dkt. No. 16), Ex. 1. The newly-submitted
records show that on December 3, 2017, plaintiff was admitted to an intensive care unit and
underwent a right frontal craniotomy to remove the hematoma. Id. at ECF page 2. Plaintiff was
discharged on December 7, 2017. However, on December 8, 2017, plaintiff was re-admitted to the
hospital after experiencing a seizure. Id. at ECF pages 52, 58. The treating notes indicate that the
likely cause of the seizure was the hospital's failure to start plaintiff on prophylactic anti-epileptic
medication following his craniotomy. Ex. 1 at ECF page 77. Plaintiff was prescribed anti-seizure
medication and released on December 9, 2017. Id. at 58-59.
III.
HEARING
A.
January 27, 2016 Hearing
On January 27, 2016, plaintiff and his counsel appeared at a hearing before ALJ Barry and
testified regarding his impairments. (R. 80.) A vocational expert and two medical examiners also
appeared and prepared to testify. However, an issue arose concerning Dr. Haberman's treating
notes. Plaintiff testified that he had seen Dr. Haberman every three months "for at least ten years."
(R. 94.) But one of the medical examiners pointed out that the notes in the file were "illegible"
(id.), and the ALJ added that there were no treating notes from Dr. Haberman prior to 2010 or from
2013 to 2015. (R. 95.) After the medical expert confirmed that it would be "very important" to get
the missing notes - because "his medical source statement shows a probable disability" and "I
need some treatment records to back this up" (R. 95-96) - the ALJ adjourned the hearing to
"subpoena those records" (R. 97) to get "something that we can actually read, rather than just
copies of the same thing." (Id.)
By subpoena dated February 8, 2016, signed by ALJ Barry, the SSA asked Dr. Haberman
for "ALL MEDICAL RECORDS" concerning plaintiff Velez. (R. 794-95.) On February 29, 2016,
7
the SAA received, from Dr. Haberman's office, additional copies of some of the same treating
notes already in the ALJ's file, together with new (and equally illegible) notes for sessions on
December 21, 2015 and February 15, 2016. (R. 798,809, 799.)
B.
June 3, 2016 Hearing
1.
Plaintiff's Testimony
The hearing re-convened on June 3, 2016. (R. 41.) Plaintiff again appeared with his
attorney. Internist Minh Vu, M.D. and psychiatrist Chukwuemeka Efobi, M.D. appeared as
medical experts and testified about plaintiffs physical and mental impairments, respectively. (R.
41, 810, 813.) Vocational expert Dale Pasculli also appeared and testified. (R. 41, 376.) Plaintiff
stated that his symptoms were sporadic pain in his legs, feet and hands, aggravated by standing
and walking. (R. 46.) He did not take any pain medication because he did not "like narcotics" and
"that's what they offer for that." (R. 47.) He testified that he did not do house work, but was able
to feed, dress, and bathe himself, and drive to visit relatives every other day. (R. 47-48, 53.) He
testified that he was inexplicably tired from "just being around." (R. 53.) He said he was able to
stand for ten minutes, sit for 30 minutes, lift up to seven pounds, and climb stairs. (R. 53-54.) He
testified that mowing his lawn every two weeks took him "six hours" because he had to take breaks
every 10 minutes. (R. 47, 55.)
2.
Medical Expert Dr. Minh Vu
Dr. Vu, testifying as a non-examining medical expert (R. 57), identified plaintiffs
impairments as heart condition, arthritis, obesity, hypertension and hepatitis-C. (R. 59.) Dr. Vu
opined that plaintiff could lift 50 pounds occasionally and 35 pounds frequently; could stand or
walk for six hours a day; had no limitations in sitting, using his hands or lower extremities; but
should not climb ropes, ladders, or scaffolds (due to a history of hypertension) and should avoid
work at unprotected heights or near moving equipment. (R. 60-61.)
8
3.
Psychiatric Medical Expert Dr. Chukwuemeka Efobi
Dr. Efobi, also testifying as a non-examining medical expert (R. 61), stated that plaintiff
had mild restrictions regarding his activities of daily living and mild to moderate restrictions with
regard to social functioning, meaning that he would "probably do best with superficial interaction
with others and simple tasks, nothing he needs to multi-task." (R. 65.) Dr. Efobi disagreed with
Dr. Haberman's assessment that plaintiff had "marked" limitations in his ability to accept
instructions and respond appropriately to criticism from supervisors or get along with coworkers.
(R. 68, 70.) However, when pressed by counsel, Dr. Efobi agreed that "Dr. Haberman would be in
a better position to assess [plaintiff's] condition than someone who [simply] reviewed his records,"
and stated that he needed Dr. Haberman's treatment notes to accurately assess his opinion. (R. 6970.)
4.
Vocational Expert Dale Pasculli
The ALJ then took the testimony of vocational expert Dale Pasculli. (R. 72.) The ALJ asked
Pasculli to assume a hypothetical claimant who was able to lift and carry 25 pounds frequently and
50 pounds occasionally; was able to sit, stand, and walk six hours in an eight-hour work day; could
never climb ladders, ropes, and scaffolds; would need to avoid unprotected heights and exposure
to dangerous machinery; could occasionally climb ramps and stairs;, and could frequently bend,
stoop, kneel, crouch and crawl. (R. 73.) With respect to mental limitations, the hypothetical
claimant could follow and understand simple directions and instructions; and could perform
simple, routine, repetitive tasks in a low-stress work environment with occasional contact with
supervisors, coworkers and the general public. (R. 74.) The vocational expert testified that such a
claimant would be able to perform the job of cook helper and packager at the meflium exertional
level, or photocopy machine operator, routing clerk, or housekeeping cleaner at the light exertional
level. (R. 74-75.) On examination by plaintiffs lawyer, the vocational expert testified that if the
9
hypothetical claimant were limited to being able to stand or walk for only one hour, he would be
unable to perform any of these jobs. (R. 75-76.) The ALJ then adjourned the hearing.
IV.
ALJ DECISION
A.
Standards
A five-step sequential evaluation process is used pursuant to 20 C.F.R. § 404.1520(a) to
determine whether a claimant over the age of 18 is disabled within the meaning of the Act. The
Second Circuit has described the sequence as follows:
First, the Commissioner considers whether the claimant is currently engaged in
substantial gainful activity. Where the claimant is not, the Commissioner next
considers whether the claimant has a "severe impairment" that significantly limits
her physical or mental ability to do basic work activities. If the claimant suffers
such an impairment, the third inquiry is whether, based solely on medical evidence,
the claimant has an impairment that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1
... Assuming the claimant does not have a listed impairment, the fourth inquiry is
whether, despite the claimant's severe impairment, she has the residual functional
capacity [RFC] to perform her past work. Finally, if the claimant is unable to
perform her past work, the burden then shifts to the Commissioner to determine
whether there is other work which the claimant could perform.
Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (citation omitted).
If it is determined that the claimant is or is not disabled at any step of the evaluation process,
the evaluation will not progress to the next step. 20 C.F.R. §§ 404.1520(a)(4). A claimant bears
the burden of proof as to the first four steps, while the Commissioner bears the burden at the fifth
step. See Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496,501 (2d
Cir. 1998). To support a finding that the claimant is not disabled at step five, the Commissioner
must offer evidence demonstrating that other work exists in significant numbers in the national
and local economies that the claimant can perform, given the claimant's RFC, age, education, and
past relevant work experience. See 20 C.F.R. §§ 404.1512(f) (2015), 404.1560(c).
The regulations as they existed at the time of the Commissioner's decision provided further
guidance for evaluating whether a mental impairment meets or equals a listed impairment at the
10
third step. In a "complex and highly individualized process," 20 C.F.R. § 404.1520a(c)(l) (2011),
the ALJ was required to determine how the impairment "interferes with [the claimant's] ability to
function independently, appropriately, effectively, and on a sustained basis." 20 C.F.R.
§ 404.1520a(c)(2) (2011). The main areas to be assessed were the claimant's (1) activities of daily
living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of
decompensation. 20 C.F.R. § 404.1520a(c)(3) (2011). 4 The first three categories were rated on a
five-point scale, from "none" through "mild," "moderate," "marked," and "extreme." 20 C.F.R.
§ 404.1520a(c)(4) (2011). A "marked" limitation could "arise when several activities or functions
are impaired, or even when only one is impaired, as long as the degree of limitation is such as to
interfere seriously with [the claimant's] ability to function independently, appropriately,
effectively and on a sustained basis." 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.00(C) (2016). The
last area - episodes of decompensation - was rated on a four-point scale: none, one or two, three,
and four or more. 20 C.F.R. § 404.1520a(c)(4) (2011).
With respect to certain listed mental disorders, the claimant was also required to show that
he had at least two of the so.-called "paragraph B criteria" or (for affective and anxiety disorders)
"paragraph C criteria. " 5 The paragraph B criteria for such disorders required at least two of the
following: ( 1) marked restriction of activities of daily living; (2) marked difficulties in maintaining
4
As of March 27, 2017, the text of20 C.F.R. §§ 404.1520a(c)(3) and (c)(4) has been amended to
read, "We have identified four broad functional areas in which we will rate the degree of your
functional limitation: Understand, remember, or apply information; interact with others;
concentrate, persist, or maintain pace; and adapt or manage oneself." In this Memorandum and
Order I apply the regulations as they existed at the time of the Commissioner's decision. Citations
to regulations that have since been amended include the date of the version that was in effect at
the time of the ALJ's decision.
5
The requirements for substance addition disorders were met where there were "changes or
physical changes associated with the regular use of substances that affect the central nervous
system," and where the requirements for, inter alia, depressive disorders, anxiety disorders, or
personality disorders are satisfied. 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.09 (2016).
11
social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or
(4) repeated episodes of decompensation. See 20 C.F.R. Pt. 404, subpt. P, app'x 1 §§ 12.04(B)
(affective disorders), 12.06(B) (anxiety related disorders), 12.08(B) (personality disorders) (2016).
The paragraph C criteria for affective disorders required: (1) repeated episodes of
decompensation, each for extended duration; (2) a residual disease process that resulted in such
marginal adjustment that even a minimal increase in mental demands or change in the environment
would be predicted to cause the individual to decompensate; or (3) a current history of one or more
years' inability to function outside a highly supportive living arrangement, with an indication of
continued need for such an arrangement. 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.04(C) (2016).
The paragraph C criteria for anxiety disorders required a complete inability to function
independently outside the area of one's home as a result of the disorder. 20 C.F.R. Pt. 404, subpt.
P, app'x 1 § 12.06(C) (2016).
If a mental disorder does not meet or equal a listed impairment, it may still qualify as a
disability if the claimant's RFC does not allow him to perform the requirements of his past relevant
work, or if the claimant's limitations, age, education, and work experience dictate that he cannot
be expected to do any other work in the national economy. 20 C.F.R. § 404.1520(e). The claimant's
RFC is determined based on all of the relevant medical and other evidence in the record, including
the claimant's credible testimony, objective medical evidence, and medical opinions from treating
and consulting sources. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(3).
Finally, at step five, the Commissioner is "responsible for providing evidence that
demonstrates that other work exists in significant numbers in the national economy" that the
claimant can do, given his RFC. 20 C.F.R. § 404.1560(c)(2). "Under the law of this Circuit and
the SSA Guidelines, the ALJ must call a vocational expert to evaluate a claimant's significant non-
12
exertional impairments in order to meet the step five burden." Lacava v. Astrue, 2012 WL
6621731, at *18 (S.D.N.Y. Nov. 27, 2012) (citations omitted), report and recommendation
adopted, 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012).
B.
Application of Standards
At step one, the ALJ found that plaintiff had engaged in substantial gainful activity, after
the alleged onset of his injury, until December 31, 2011. (R. 22.) Therefore, the ALJ limited his
decision to the period between January 1, 2012 and the date of the decision. (R. 22-23.)
At step two, the ALJ determined that plaintiff suffered from the following "severe"
impairments: hypertension, depressive disorder, arthritis, and obesity. (R. 23.) The ALJ found that
plaintiffs diabetes mellitus was not severe because it was well-controlled with medication and
there was no evidence of significant functional limitations. (R. 24) 6 The ALJ also found that
plaintiffs bipolar disorder, anxiety disorder, and personality disorder were not medically
determinable impairments because there was no "significant medical evidence" to support these
diagnoses. (Id.)
At step three, the ALJ concluded that none of plaintiffs physical or mental impairments
met or medically equaled the severity of any of the listed impairments. (R. 24.)
At step four, the ALJ concluded that plaintiff was not able to perform his past work (R.
30), but determined that he had the RFC to:
lift/carry 25 pounds frequently and 50 pounds occasionally; sit/stand/walk for six
hours each in an 8 hour workday; never climb ropes, ladders or scaffolds; avoid
unprotected heights and dangerous machinery; occasionally climb ramps and stairs;
frequently bend, stoop, crouch, crawl and kneel[.]
6 The
ALJ additionally found that plaintiffs hepatitis-C was not severe because it was under good
control with medication; plaintiffs cardiac arrhythmia was not severe because cardiac tests, chest
x-rays, and stress tests showed normal findings; and plaintiffs history of poly-substance abuse
was not severe because there was evidence that it was in full remission. (R. 24.) These findings
are not challenged in this Court.
13
(R. 26.) In addition, the ALJ found that plaintiff was:
able to follow and understand simple directions and instructions; and, able to
perform simple routine, repetitive tasks in a low stress work environment with
occasional contact with supervisors, coworkers and the general public.
(R. 26-27.)
In determining plaintiffs mental RFC, the ALJ gave "very significant weight" to Dr.
Efobi's opinion that plaintiff had "only mild limitations in activities of daily living because of
psychological impairments, mild to moderate limitations in social functioning and concentration
and pace and one episode of decompensation." (R. 28.) The ALJ credited Dr. Efobi's opinion
because he is "an expert in the field of psychiatry," has "extensive program knowledge," and
"reviewed the entire record." (R. 28-29.)
The ALJ gave "some weight" to the opinion of consultative examiner Dr. Antiaris that
plaintiff would have "moderate limitations maintaining attention and concentration, maintaining a
regular schedule, learning and performing complex tasks, making appropriate decisions, and
relating adequately with others," and "marked limitations dealing appropriately with stress,"
because the "medical evidence does not fully support the degree oflimitations Dr. Antiaris found,"
and because she did not review all the evidence. (R. 29.)
The ALJ gave "little weight" to Dr. Burcescu's opinion that plaintiff had bipolar disorder
because, although he was a treating physician, he only saw plaintiff on two occasions, and,
according to the ALJ, his diagnosis was "completely unsupported" by plaintiffs normal mental
status examinations on both of those visits. (R. 29.)
The ALJ gave "some weight" to the second copy of treating psychiatrist Dr. Haberman's
September 28, 2015 opinion,7 "based on the treatment notes and as reflected in the non-exertional
7
The ALJ gave "no weight" to the first copy of Dr. Haberman's September 28, 2015 opinion,
which indicated a last treatment date of September 25, 2012 (R. 29), stating that it was
14
portion of the residual functional capacity determined herein," but not to the extent that Dr.
Haberman found a "marked degree of limitation." (R. 29.) The ALJ described Dr. Haberman's
treating notes as covering "a relatively short period over 6-8 months in 2015-16." (Jd.)8 The ALJ
did not give any weight to the diagnostic tests that Dr. Haberman cited in and attached to his
opinion (R. 750-52), because they did not list "the name of the patient, the name of the person
completing the form, or the date." (R. 29.)
With respect to plaintiffs physical RFC, the ALJ accorded "some weight" to treating
physician Dr. Phuntsok's opinion "insofar as most limitations conform to those used in the residual
functional capacity found herein." (R. 30.) The ALJ gave "very significant weight" to medical
expert Dr. Vu's opinion that plaintiff had the RFC for "medium work" with certain limitations.
The ALJ noted that Dr. Vu, like Dr. Efobi, was "an expert in his field," had "extensive program
experience," and "reviewed the entire medical record." (R. 29.)
The ALJ gave "some weight" to consultative examiner Dr. Pelczar-Wissner's opinion that
plaintiff had "moderate restrictions in walking, bending, heavy lifting and carrying," noting that
she provided only a one-time examination and did not perform any pulmonary tests. (R. 29.) The
ALJ reasoned that the degree of limitations she found were "not well supported by the medical
"unsupported by any treatment notes" and referred to "a period of treatment" ending September
25, 2012. (Id.) The ALJ appeared to be under the impression that Exhibit22F (R. 800) and Exhibit
13F (R. 741) were two separate opinions. In fact, as noted above, they were two separate copies
of the same opinion. The second copy, produced pursuant to subpoena, differed from the first only
in that the "date of most recent exam" was corrected to accurately reflect that as of the date of the
opinion, Dr. Haberman had last seen the plaintiff on September 25, 2015 (three days prior), not
September 25, 2012 (three years prior). (See R. 792-93, 809 (September 25, 2015 treating notes)).
8
The ALJ appeared to be under the impression that these were the only treating notes from Dr.
Haberman in the record. In fact, as noted above, Dr. Haberman also provided notes dated from
December 2010 through August 2012. (R. 428-32.)
15
record as a whole," specifically, her physical examination, which showed only "benign findings
except for some limitation of motion of the lumbar spine." (R. 29-30.)
At step four, the ALJ found that plaintiff could not perform his past relevant work. (R. 30.)
At step five, on the basis of the vocational expert's testimony, the ALJ concluded that
plaintiff had the RFC to perform a significant number of jobs in the national economy, including
work as a cook helper, hand packager, photocopy machine operator, routing clerk, and cleanerhousekeeping. (R. 31.)
V.
ANALYSIS
A.
Standard of Review
Both parties have moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).
To prevail on such a motion, a party must establish that no material facts are in dispute and that
judgment must be granted to that party as a matter of law. Sellers v. MC Floor Crafters, Inc., 842
F.2d 639,642 (2d Cir. 1988); Claudio v. Commissioner of Social Security, 2017 WL 111741, at
*1 (S.D.N.Y. Jan. 11, 2017).
The Act provides that the Commissioner's findings "as to any fact, if supported by
substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). The reviewing court may set aside
a decision of the Commissioner only if it is "based on legal error or if it is not supported by
substantial evidence." Geertgens v. Colvin, 2014 WL 4809944, at *1 (S.D.N.Y. Sept. 24, 2014)
(quoting Hahn v. Astrue, 2009 WL 1490775, at *6 (S.D.N.Y. May 27, 2009)); accord Longbardi
v. Astrue, 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). Thus, where an applicant challenges
the agency's decision, the district court must first decide whether the Commissioner applied the
correct legal standards. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart,
2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). If there was no legal error, the court must
16
determine whether the ALJ's decision was supported by substantial evidence. Tejada, 167 F.3d at
773; Calvello, 2008 WL 4452359, at *8.
"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."' Halloran v. Barnhart, 362
F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1970)). "In
determining 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 v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999), and Williams v. Bowen, 859 F.2d 255,256 (2d Cir.
1988)). However, the reviewing court's task is limited to determining whether substantial evidence
exists to support the ALJ' s fact-finding; it may not reweigh that evidence or substitute its judgment
for that of the ALJ where the evidence is susceptible of more than interpretation. "[O]nce an ALJ
finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude
otherwise." Brault v. Soc. Sec. Admin., Comm 'r, 683 F.3d 443, 448 (2d Cir. 2012) (emphasis in
original) (quotation marks and citation omitted). Thus, the substantial evidence standard is "a very
deferential standard of review- even more so than the 'clearly erroneous' standard." Id.; see also
Brown v. Colvin, 73 F. Supp. 3d 193, 198 (S.D.N.Y. 2014).
"[T]he crucial factors in any determination must be set forth with sufficient specificity to
enable [the reviewing court] to decide whether the determination is supported by substantial
evidence." Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). Thus, remand may be
appropriate if the ALJ fails to provide an adequate "roadmap" for his reasoning. But if the ALJ
adequately explains his reasoning, and if his conclusion is supported by substantial evidence, the
district court may not reverse or remand simply because it would have come to a different decision
17
on a de nova review. "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)
(citation and internal quotation marks omitted). See also Yancey v. Apfel, 145 F.3d 106, 111 (2d
Cir. 1998) ("the court should not substitute its judgment for that of the Commissioner"); Ryan v.
Astrue, 5 F. Supp. 3d 493, 502 (S.D.N.Y. 2014) ("[T]his Court may not substitute its own judgment
as to the facts, even if a different result could have been justifiably reached upon de nova review.")
(quoting Beres v. Chater, 1996 WL 1088924, at *5 (E.D.N.Y. May 22, 1996)).
Here, plaintiff seeks remand on four principal grounds, the most substantial of which is his
contention that the ALJ erred by failing to grant controlling weight to the opinions of his treating
physicians, Dr. Phuntsok and Dr. Haberman. Pl. Mem. at 13-14. Plaintiff also argues that theALJ's
RFC determination was not supported by substantial evidence, id. at 14-15; that the ALJ erred in
finding that plaintiffs diabetes, chronic fatigue, bipolar disorder and anxiety disorder were not
severe or medically determinable impairments, id. at 15-17; and that the case should be remanded
for consideration of the new evidence, related to his 2017 brain hematoma, that he submitted with
his motion. Id. at 17-18. The Court agrees that the ALJ misapplied the treating physician rule, and
that remand is warranted on that basis. Because the Court finds that the ALJ committed a legal
error in his treatment of the opinions of plaintiffs treating physicians, the Court does not reach
plaintiffs other arguments.
B.
The Treating Physician Rule
An ALJ is required to give controlling weight to the opinion of a claimant's treating
physician so long as that opinion is well-supported by medical findings and is not inconsistent with
other evidence in the record. 20 C.F.R. § 404.1527(c)(2) (2012). The treating physician rule
recognizes that a claimant's treating physician is "most able to provide a detailed, longitudinal
18
picture of [the 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, such as consultative examinations or brief hospitalizations." Id. See
also Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983) ("The opinion of a treating
physician is accorded extra weight because the continuity of treatment he provides and the
doctor/patient relationship he develops place him in a unique position to make a complete and
accurate diagnosis of his patient.").
Where mental health treatment is at issue, the treating physician rule takes on added
importance. Rodriguez v. Astrue, 2009 WL 637154, at *26 (S.D.N.Y. Mar. 9, 2009). "A mental
health patient may have good days and bad days; [he] may respond to different stressors that are
not always active. Thus, the longitudinal relationship between a mental health patient and her
treating physician provides the physician with a rich and nuanced understanding of the patient's
health that cannot be readily achieved by a single consultative examination." Bodden v. Colvin,
2015 WL 8757129, at *9 (S.D.N.Y. Dec. 14, 2015). See also Richardson v. Astrue, 2009 WL
4793994, at *7 (S.D.N.Y. Dec. 14, 2009) ("Because mental disabilities are difficult to diagnose
without subjective, in-person examination, the treating physician rule is particularly important in
the context of mental health.") (internal citations and quotation marks omitted).
If the ALJ does not afford controlling weight to the opinion of a treating physician, he must
give "good reasons" for doing so, and "comprehensively set forth [the] reasons for the weight
assigned" to the opinion. Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (quoting Burgess v.
Astrue, 537 F.3d 117, 129 (2d Cir. 2008)); 20 C.F.R. § 404.1527(c)(2) ("We will always give good
reasons in our notice of determination or decision for the weight we give your treating source's
medical opinion."). In particular, the ALJ must "explicitly consider ... (1) the frequency, length,
19
nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the
consistency of the opinion with the remaining medical evidence; and (4) whether the physician is
a specialist." Selian v. Astrue, 708 F.3d 409,418 (2d Cir. 2013) (citing Burgess, 537 F.3d at 129);
see also 20 C.F.R. § 404.1527(c)(2)-(c)(6) (listing same factors). A "failure to provide good
reasons for not crediting the opinion of a claimant's treating physician is a ground for remand."
Greek, 802 F.3d at 375; Halloran, 362 F.3d at 33.
The "good reasons" requirement serves the dual purpose of permitting the Court and the
claimant to understand the ALJ' s decision-making process. An ALJ who fails to provide an
adequate roadmap for his reasoning deprives the Court of the ability to determine accurately
whether his opinion is supported by substantial evidence. Ferraris, 728 F.2d at 587 (noting that
"the crucial factors in any determination must be set forth with sufficient specificity"); Halloran,
362 F.3d at 33 (the "good reasons" requirement assists court's review of ALJ's decisions); Rivera
v. Astrue, 2012 WL 3614323, at *8 (E.D.N.Y. Aug. 21, 2012) ("[I]n order to accommodate 'limited
and meaningful' review by a district court, the ALJ must clearly state the legal rules he applies
and the weight he accords the evidence considered.") (citation omitted); 20 C.F.R.
§ 404.1527(c)(2) (an ALJ is required to apply the regulatory factors and give good reasons for the
weight assigned). With respect to the disability claimant, the "requirement of reason-giving exists,
in part, to let claimants understand the disposition of their cases, even - and perhaps especially when those dispositions are unfavorable." Snell, 177 F.3d at 134. While a plaintiff is not entitled
to have the opinion of his treating physician given controlling weight, where an ALJ does not
credit his treating physician's findings, he is entitled to an explanation. Id.
In this case, there is no dispute that Dr. Haberman and Dr. Phuntsok were plaintiffs treating
physicians. Therefore, the ALJ was required to consider the regulatory factors before assigning
20
less than controlling weight to their opinions, and provide "good reasons" for the weight he
ultimately did assign. 20 C.F.R. § 404.1527(c)(2). Here, with respect to both physicians, the ALJ
failed to consider any of the regulatory factors and further erred by failing to give good reasons
for the weight he assigned their opinions. As to Dr. Haberman, the ALJ also appeared to
misunderstand or misconstrue the relevant portions of the record. As to Dr. Phuntsok, the ALJ
articulated no reasons whatsoever for giving his opinion only "some" weight.
1.
Dr. Haberman
The ALJ gave "some weight" to the second copy of Dr. Haberman's September 28, 2015
opinion, "based on the treatment notes and as reflected in the non-exertional portion of the residual
functional capacity determined herein but not a marked degree of limitation." (R. 29.) Although
the ALJ's intention is not entirely clear, the Court presumes that the phrase "but not a marked
degree of limitation" means that the ALJ rejected the portions of Dr. Haberman's opinion that
found plaintiff had marked limitations with regard to his ability to maintain attention and
concentration, work in coordination with/or in proximity with others, accept instructions and
respond appropriately to criticism, get along with co-workers or peers, and travel to unfamiliar
places or use public transportation. (R. 744-47, 803-806.) As so construed, the ALJ's language
describes what the ALJ did, but does not explain why he did it.
Similarly, the ALJ's statement that the weight he gave to Dr. Haberman's opinion was
"based on the treatment notes" is unhelpful. The Court cannot determine whether the opinion were
partially credited because of the treating notes or partially discredited because of them. Nor does
the ALJ explain (here or elsewhere) what he saw in Dr. Haberman's treating notes that caused him
to assign the weight he did. In all likelihood, this is because - as the ALJ noted at plaintiffs first
hearing - the notes are largely illegible. Recognizing the problem, the ALJ adjourned that hearing,
21
stating, "We'll subpoena those records. We'll ask him to give us something that we can actually
read, rather than just copies of the same thing." (R. 97.)
ALJ Barry did send a subpoena to Dr. Haberman, but the subpoena merely instructed the
psychiatrist to produce "ALL MEDICAL RECORDS" concerning plaintiff Velez. (R. 794-95.) It
did not ask for typed or transcribed records. Not surprisingly, the records produced in response to
the subpoena were, for the most part, duplicate copies of the same handwritten documents
previously submitted (R. 797, 809), together with a few more recent treatment notes, equally
difficult to read. (R. 799.)
"Where the medical records are crucial to the plaintiff's claim, illegibility of important
evidentiary material has been held to warrant a remand for clarification and supplementation."
Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975); accord Johnson v. Comm'r of Soc.
Sec., 2017 WL 4155408, at *10, n.2 (S.D.N.Y. Sept. 18, 2017) (remanding for violation of the
treating physician rule where it "appears likely that the ALJ's cursory treatment of Dr. Gumiak is
related to the fact that Dr. Gumiak's handwritten treatment records are largely indecipherable,"
but the ALJ failed to "seek clarification or even transcription of the treating doctor's notes"). This
rule has particular force where, as here, the ALJ has discounted a treating physician's opinion by
reference to the illegible notes. As the court explained in Silva v. Colvin, 2015 WL 5306005
(W.D.N.Y. Sept. 10, 2015), the indecipherability of the underlying treating notes leaves the
reviewing court "unable to determine whether the ALJ' s main reason for discounting his opinions
... is supported by substantial evidence." Id. at *5 (remanding "for transcription of Dr. Ortega's
notes, questionnaires, and reports"). See also Connor v. Barnhart, 2003 WL 21976404, at *8
(S.D.N.Y. Aug.18, 2003) (where "many of the medical records are illegible, as the handwritten
notes of the physicians are difficult to decipher," the ALJ "did not, 'and indeed could not, decide
22
[plaintiffs] claim with the benefit of a complete and accurate record.'") (quoting Pratts v. Chater,
94 F.3d 34, 38 (2d Cir. 1996)).
In this case, the failure to seek legible treatment notes was not harmless. Not only did the
ALJ cite the notes (without citing anything in the notes) in support of his decision to grant only
"some" weight to Dr. Haberman's opinion at step four; he also relied on the lack of supporting
treatment records to find, at step two, that although Dr. Haberman diagnosed plaintiff with bipolar
disorder and anxiety disorder, these were not "medically determinable impairments." (R. 24.)
According to the ALJ, "there is no significant medical evidence including treatment and results of
mental status examination to support these diagnoses. Thus, these conditions are not medically
determinable impairments." (Id.) The ALJ could not have exercised his obligation to consider all
of the relevant evidence before him, nor can this Court undertake the required "plenary review"
of the administrative record, Pratts, 94 F.3d at 37, if the most "significant medical evidence" was
indecipherable.
Moreover, the ALJ appears to have misread, or misunderstood, the nature of the records
submitted by Dr. Haberman. He described Dr. Haberman's treating notes as covering "a relatively
short period over 6-8 months in 2015-16" (R. 29), when in fact the record also contained notes
from 2010-2012. (R. 428-32.) He rejected the first copy of Dr. Haberman's opinion as
"unsupported by any treating notes" (R. 29), when in fact it was the same opinion, supported by
the same notes, as the second copy, to which the ALJ gave "some weight." And he accorded "no
weight" to the results of the GAD, PHQ-9, and MDQ diagnostic tests that Dr. Haberman attached
to his opinion (750-52), and cited in support his conclusions (R. 743), because the test forms
23
themselves "did not indicate the name of the patient, the name of the person filling out the form,
or the date." (R. 29.) 9
These factual errors would require remand even if the ALJ had provided specific reasons
for discounting Dr. Haberman's opinion. See Pratts, 94 F.3d at 38 (If the ALJ commits "factual
errors in evaluating the medical evidence," his decision denying benefits "is not supported by
substantial evidence."); Wilson v. Colvin, 213 F. Supp. 3d 478, 491 (W.D.N.Y. 2016) (internal
quotations omitted) ("although the ALJ provided 'specific' reasons for discounting Plaintiffs
credibility, the Court cannot find that they were 'legitimate' reasons because they are based on a
misconstruction of the record"); Edel v. Astrue, 2009 WL 890667, at *15 (N.D.N.Y. Mar. 30,
2009) (ALJ's finding was "not supported by substantial evidence where [the ALJ] relied primarily
upon a misstatement of the record").
2.
Dr. Phuntsok
The ALJ accorded "some weight" to Dr. Phuntsok's opinion, "insofar as most limitations
conform to those used in the residual functional capacity found herein." (R. 30.) The physical RFC
formulated by the ALJ was consistent with Dr. Phuntsok's opinion that plaintiff could lift and
carry up to 20 pounds frequently and 50 pounds occasionally. (R. 756.) However, the ALJ found
that plaintiff could "sit/stand/walk for six hours each in an 8 hour workday" (R. 26), thereby
rejecting Dr. Phuntsok's opinion that plaintiff could stand or walk for only one hour in an eighthour day. (R. 756.) This issue was outcome-determinative. 10 Similarly, the RFC made no
9
In fact, the diagnostic forms are all dated September 25, 2015, which is when Dr. Haberman last
saw the plaintiff before completing his opinion on September 28, 2015.
10
The vocational expert testified that if the hypothetical claimant were limited to one hour of
standing or walking, he could not do any of the jobs listed by the expert. (R. 75-76.) Had the ALJ
fully credited Dr. Phuntsok's opinion, therefore, he could not have concluded, on the record
adduced at the hearing, that there was "other work which the claimant could perform." Jasinski,
341 F.3d at 183-84.
24
allowances for plaintiffs fatigue (which Dr. Phuntsok rated as 9-10 out of 10 in severity) and did
not include any limitations on pushing and pulling, which according to Dr. Phuntsok, plaintiff
"would need to avoid." (R. 758, 760.)
The ALJ gives no explanation for the weight he accorded to Dr. Phuntsok's opinion. Not
only does he fail to "explicitly consider" the regulatory factors, Selian, 708 F.3d at 418; he fails to
identify any reasons whatsoever for his decision to discount the opinion of plaintiffs treating
physician.
It is possible that he had good reasons. There are portions of the record that are inconsistent
with Dr. Phuntsok's views. For example, in plaintiffs function report he stated that he was
"physically not affected" by his impairments. (R. 334-35.) There was also opinion evidence from
other physicians (to which the ALJ assigned varying degrees of weight and provided reasons for
doing so), that contradicted the limitations proposed by Dr. Phuntsok. However, the ALJ did not
cite any of this evidence as a basis for discounting Dr. Phuntsok's opinion, and did not make any
effort to resolve any genuine conflicts in that evidence. See Veino v. Barnhart, 312 F.3d 578, 588
(2d Cir. 2002) ("Genuine conflicts in the medical evidence are for the Commissioner to resolve.").
Because the ALJ failed to consider any of the regulatory factors, and failed to give any
reasons for the less-than-controlling weight he assigned to the opinion of Dr. Phuntsok, remand is
appropriate. See Winn v. Colvin, 541 F. App'x 67, 70 (2d Cir. 2013) (remanding where the "ALJ
includes no explanation for why [treating physician's] assessment was given only little weight");
Newbury v. Astrue, 321 F. App'x 16, 17-18 (2d Cir. 2009) (vacating and remanding for further
consideration where the ALJ and the Appeals Council failed to "state any specific any reasons"
for not crediting opinions of plaintiffs treating psychiatrist); Sanchez v. Colvin, 2015 WL 5774853,
at *8 (E.D.N.Y. Sep. 30, 2015) (remanding where, among other things, the ALJ failed to give good
25
reasons for declining to give controlling weight to plaintiffs treating physicians' opinions);
Hernandez v. Astrue, 814 F. Supp. 2d 168, 187-88 (E.D.N.Y. 2011) (remanding where the ALJ
failed to give good reasons for failing to consider the diagnoses of plaintiffs treating physicians
regarding her mental impairments).
On remand, the ALJ must (a) request or direct the preparation of a transcription or other
legible version of Dr. Haberman's treating notes; and (b) re-evaluate the opinions of Dr. Haberman
and Dr. Phuntsok in light of this opinion. 11 If, on remand, ALJ Barry declines to assign controlling
weight to one or both of this opinions, he must explicitly consider the regulatory factors and
"comprehensively set forth [the] reasons for the weight assigned." Greek, 802 F .3d at 37 5 (quoting
Burgess, 537 F.3d at 129). Finally, the ALJ must (c) re-assess plaintiffs impairments and residual
functional capacity in light of his conclusions.
VI.
CONCLUSION
For the foregoing reasons, plaintiffs motion is GRANTED, the Commissioner's motion is
DENIED, and this action is REMANDED for further proceedings consistent with this Order.
Dated: New York, Npw York
September ~ O 18
SO ORDERED.
~
BARBARA MOSES
United States Magistrate Judge
If the ALJ is genuinely uncertain as to whether the PHQ-9, MDQ, and GAD forms cited in Dr.
Haberman's opinion relate to plaintiff Velez, he should also seek clarification on this point from
Dr. Haberman.
11
26
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