Weston v. Colvin

Filing 18

DECISION AND ORDER granting 11 Plaintiff's Motion for Judgment on the Pleadings to the extent that the matter is remanded for further administrative proceedings consistent with this opinion; denying 15 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/25/2017. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PHADRA V. WESTON,
Plaintiff,

No. 1:16-cv-00272(MAT)
DECISION AND ORDER

-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
INTRODUCTION
Represented

by

counsel,

Phadra

V.

Weston

(“Plaintiff”)

instituted this action pursuant to Title XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the Acting
Commissioner of Social Security (“the Commissioner”)1 denying her
application for Supplemental Security Income (“SSI”). The Court has
jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
PROCEDURAL STATUS
On April 21, 2010, Plaintiff filed a Title XVI application for
SSI, alleging a disability onset date of June 3, 2006, later
amended to April 21, 2010, due to depression, anxiety, asthma,
diabetes, high blood pressure and high cholesterol. (T.351-54,

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on
January 20, 2017. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Nancy A. Berryhill should be substituted, therefore, for Acting
Commissioner Carolyn W. Colvin as Defendant in this suit. No further action need
be taken to continue this suit by reason of the last sentence of section 205(g)
of the Social Security Act, 42 U.S.C. § 405(g).

368).2 Plaintiff’s claim was denied on May 27, 2010, and she filed
a

timely

written

request

for

hearing.

On

April

25,

2011,

administrative law judge William M. Weir (“ALJ Weir”) conducted a
hearing in Buffalo, New York, at which Plaintiff appeared with her
attorney and testified. Vocational expert Julie A. Andrews also
appeared but was not called to testify.
On April 13, 2012, ALJ Weir issued an unfavorable decision
(T.164-70), finding that Plaintiff had the residual functional
capacity (“RFC”) to perform a full range of work at all exertional
levels, provided it involved only simple, repetitive tasks in a
consistent, known setting; and only limited personal contact,
defined as occasional contact with co-workers, supervisors, and the
general public. (T.167). ALJ Weir proceeded to find Plaintiff
capable

of

performing

her

past

relevant

work

(“PRW”)

as

a

residential home health aide. (T.170).
The Appeals Council granted Plaintiff’s request for review on
September 3, 2013. (T.176-79). The Appeals Council identified
several errors warranting remand, including that the basis for the
RFC assessment was unclear. The Appeals Council noted that the
ALJ’s decision indicated that the RFC was based in part upon a
consultative examiner’s evaluation and an opinion of a state agency
reviewer, but the record did not contain such evidence. (T.176).

2

Citations to “T.” in parentheses refer to pages from the transcript of the
certified administrative record.

-2-

The Appeals Council also found that the record was unclear as to
whether Plaintiff’s past job as a home healthcare aide satisfied
the criteria used to determine PRW. Moreover, ALJ Weir’s decision
did not specify the physical and mental demands of Plaintiff’s past
job, or compare her RFC with the physical and mental demands of her
past job. (T.177). On remand, the ALJ was directed to, among other
things, “[o]btain additional evidence concerning the claimant’s
impairments in order to complete the administrative record in
accordance with the regulatory standards regarding consultative
examinations and existing medical evidence (20 CPR 416.912-913)[,]”
which “additional evidence may include, if warranted and available,
a consultative examination with psychological testing and medical
source statements about what the claimant can still do despite the
impairments[;]” and “[f]urther consider whether the claimant’s past
work constitutes past relevant work[.]” (T.177, 178).
ALJ Weir conducted a supplemental hearing on March 14, 2014,
in Buffalo, New York. At the ALJ’s request, State agency review
psychologist Sharon Kahn,3 Ph.D. testified and offered her opinion
based solely on her review of a partial record.4 Vocational expert

3

The doctor’s surname is alternatively spelled “Khan” in the record and by
the parties. On the doctor’s resume, her surname is spelled “Kahn,” so that is
the spelling the Court will use.
4

Dr. Kahn testified she did not have treatment records more current than two
years prior to the second hearing on March 14, 2014. (T.21). Dr. Kahn stated that
her testimony was based on her own personal notes, not the full record,
explaining,“I don’t have the [computer] disc, because I’m not in a place where
I have access to a computer right now. All I have is my notes and the last

-3-

Rachel A. Duchon (“the VE”) also appeared and testified. On October
2, 2014, ALJ Weir issued an unfavorable decision. (T.183-205).
In her request for review by the Appeals Council, Plaintiff
sought

an

extension

of

time

to

submit

legal

arguments

and

additional evidence. (T.4-6). The Appeals Council stated that it
would not act on Plaintiff’s case for 25 days. (T.4). However,
Plaintiff apparently did not submit any additional evidence, and
the Appeals Council denied Plaintiff’s request for review on
February

11,

2016

(T.1-3),

making

ALJ

Weir’s

decision

the

Commissioner’s final decision. Plaintiff then timely commenced this
action.
Plaintiff and Defendant have cross-moved for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. The Court will discuss the record evidence further
below, as necessary to the resolution of the parties’ contentions.
For the reasons discussed below, the Commissioner’s decision
is reversed, and the matter is remanded for further administrative
proceedings.
THE ALJ’S DECISION
The

ALJ

followed

the

five-step

sequential

evaluation

established by the Commissioner for adjudicating disability claims.
See 20 C.F.R. §§ 404.1520, 416.920.

treatment as March 19, 2012.” (T. 22).

-4-

At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since April 21, 2010, the amended
onset date.
At

step

two,

the

ALJ

determined

that

Plaintiff

has

the

following “severe” impairments: agoraphobia, depressive disorder,
and anxiety disorder.

The ALJ found that Plaintiff’s substance

abuse disorder is non-severe because it is in sustained remission;
her pancreatitis is non-severe because it did not last at least 12
consecutive months; and her asthma, diabetes, hypertension, and
hyperlipidemia are non-severe because they do not cause more than
minimal

limitations

in

her

ability

to

perform

work-related

activities.
At step three, the ALJ found that Plaintiff’s impairments,
singly or together, do not meet or medically equal the severity of
a listed impairment in 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ
in particular considered Listings 12.04 (Affective Disorders) and
12.06 (Anxiety Disorders). Applying the special technique, the ALJ
assessed Plaintiff as having mild restrictions in activities of
daily living; moderate difficulties in social functioning; and mild
difficulties in maintaining concentration, persistence or pace. The
ALJ

found

that

Plaintiff

had

not

had

any

episodes

of

decompensation.
The ALJ then found that Plaintiff has the RFC to perform a
full range of work at all exertional levels, except that she can
-5-

have only brief and superficial contact (i.e., no more than 1 hour
for each contact) with co-workers and supervisors and no contact
with the public.
At step four, the ALJ found that Plaintiff has some prior work
experience; however, based upon her earnings record, the work was
not vocationally relevant. Therefore, Plaintiff has no PRW.
At step five, the ALJ found that Plaintiff was 39 years-old on
the application date, making her a “younger individual age 18-49,”
with a limited education and the ability to communicate in English.
The ALJ relied on the VE’s testimony that an individual with
Plaintiff’s age, education, work experience, and RFC could perform
the requirements of representative occupations such as collator
operator (DOT #208.685-010, light, unskilled, SVP 2, of which there
are 225,310 jobs in the national economy and 23,000 regionally);
and routing clerk (DOT #222.587-038, light exertion, unskilled, SVP
2, of which there are 316,447 jobs nationally and 23,842 jobs
regionally).
Accordingly, ALJ Weir found that Plaintiff was not under a
disability as defined by the Act from April 21, 2010, through
October 2, 2014, the date of decision.
SCOPE OF REVIEW
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, the district court is
limited to determining whether the Commissioner’s findings were

-6-

supported

by

substantial

record

evidence

and

whether

the

Commissioner employed the proper legal standards. Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The district court
must accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). “The deferential standard of review for substantial
evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
DISCUSSION
I.

The ALJ Failed to Develop the Record and Comply with the
Appeals Council’s Remand Order.
Plaintiff argues that the ALJ failed to fulfill his duty to

develop the record because he did not obtain certain mental health
treatment records from Lake Shore Behavioral Health (“Lake Shore”).
At the second hearing, Plaintiff’s counsel made it clear that
Plaintiff’s mental health records since April of 2012 had been
requested, but had not been furnished by Lake Shore by the time of
the hearing. (T.10). Plaintiff’s counsel indicated that “we’re
going

to

have

to

keep

the

record
-7-

open

to

get

[the

updated

records].” (T.10). The ALJ did not take any further steps to obtain
these records. Plaintiff argues that this was an abdication of the
ALJ’s statutory duty to develop the record, as well as a violation
of his duty to comply with the Appeals Council’s remand order
directing him to develop a complete administrative record. (T.177).
(See Pl’s Mem. at 15-18).
It is well established that the ALJ has a duty to develop the
record, even when the claimant is represented by counsel. E.g.,
Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (citations
omitted). This duty is not unlimited; the ALJ need only make every
reasonable effort to assist the claimant in obtaining his medical
records. See 42 U.S.C. § 423(d)(5)(B); 20 C.F.R. § 416.912(d).
Here, however, the ALJ did not make any reasonable effort to obtain
these records, despite the fact that the medical expert he had
called to testify, Dr. Kahn, stated

that the record was too

incomplete for her to come to a valid conclusion. Dr. Kahn noted
that “two years is a significant amount of time if you are trying
to obtain Social Security but have not had a recent mental health
evaluation . . . .” (T.27). Plaintiff’s counsel asked Dr. Kahn
whether it would change her opinion if Plaintiff had been in mental
health treatment from 2012 until the present time, and Dr. Kahn
replied, “Yes, that would . . . .” (Id.). When Dr. Kahn was
informed

that

Plaintiff

actually

had

been

in

mental

health

treatment from 2012 to 2014, but they did not have the records, she

-8-

responded “Well, that’s a big problem for me. That’s a big problem
for me. I’m sorry.” (Id.). Dr. Kahn also said, “I would like to
have a more recent independent psychological examination from like
one

of

those

IMA

[sic]

places.”

(Id.).

Given

the

foregoing

testimony by the ALJ’s expert witness, the Commissioner cannot
plausibly argue that the record is sufficiently complete and
therefore any error by the ALJ in fulfilling his statutory duty is
harmless. The record here is clearly incomplete, and remand is
required to obtain the missing records from Lake Shore.
II.

The ALJ Erroneously Gave “Great Weight” to State Agency Review
Psychologist Dr. Kahn’s Testimony and Opinion
A.

Dr. Kahn’s Opinion Is Based on an Incomplete Record and
Cannot Constitute Substantial Evidence

By Dr. Kahn’s own admission, she was troubled at having to
base her opinion regarding the severity of Plaintiff’s mental
limitations on a record that was missing two years of mental health
treatment

records

and

a

recent,

in-person

psychological

examination. (T.27-28). An opinion that is not based on a complete
medical record cannot constitute substantial evidence. See Tarsia
v. Astrue, 418 F. App’x 16, 18 (2d Cir. 2011) (unpublished opn.)
(“Because it is unclear whether [non-examining physician] Dr.
Manley reviewed all of Tarsia’s relevant medical information, his
opinion is not ‘supported by evidence of record’ as required to
override the opinion of treating physician Dr. LoFaso. Accordingly,
the ALJ

erred

in

placing

substantial
-9-

weight

on

Dr.

Manley’s

possibly ill-founded opinion and in allowing Dr. Manley’s opinion
to override that of Dr. LoFaso.”); Stevens v. Comm’r of Soc. Sec.,
No. 3:15-CV-524(ATB), 2016 WL 3199515, at *7 (N.D.N.Y. June 8,
2016) (“[T]he assignment of significant weight to a non-examining
consultant’s opinion is error when the consultant reviewed an
incomplete record that lacks notes or opinions by the [claimant]’s
treating

psychiatrist.”)

(citing

Coleman

v.

Colvin,

No.

14-CV-2383(SAS), 2015 WL 1190089, at *10 (S.D.N.Y. Mar. 16, 2015)
(“Great

weight

should

not

be

accorded

to

the

opinion

of

a

non-examining State agency consultant whose opinion is based on an
incomplete record that lacks the opinion of the claimant’s primary
treating psychiatrist. Though the opinions of Dr. Mohsin or Dr. Kim
were not entirely consistent with the rest of the medical evidence
in the record, their opinions were not wholly unreliable. It is
possible that Dr. Apacible’s conclusions may have differed had he
reviewed those opinions. Thus, the ALJ’s decision to assign ‘great
weight’ to Dr. Apacible’s opinion constitutes error.”) (footnote
and citations omitted)); Jones v. Comm’r of Soc. Sec., 10 CV 5831
RJD, 2012 WL 3637450, at *2 (E.D.N.Y. Aug. 22, 2012) (“[B]y [the]
. . . hearing date, the disability examiner’s opinion that Jones
could perform light work was 1.5 years stale, and did not account
for her deteriorating condition.”); Griffith v. Astrue, 08-CV-6004CJS, 2009 WL 909630, at *9 n. 9 (W.D.N.Y. Mar. 31, 2009) (finding
that “the State Agency Officials’ reports, which are conclusory,

-10-

stale,

and

based

on

an

incomplete

medical

record,

are

not

substantial evidence”).
In assigning significant weight to Dr. Kahn’s opinion, ALJ
Weir ignored the doctor’s own testimony that she drew an adverse
inference against Plaintiff based on her erroneous belief that
Plaintiff had not sought mental health treatment for several years.
Dr. Kahn admitted that her opinion would have differed if she had
been able review the most recent records from 2012 through the date
of the 2014 hearing. The ALJ’s error in relying on Dr. Kahn’s
testimony was not harmless. See, e.g., Stevens, 2016 WL 3199515, at
*7 (“In assigning significant weight to Dr. Kamin’s opinion, the
ALJ failed to consider whether that opinion may have differed if
Dr. Kamin had been able to review this evidence, which consisted of
almost three years worth of additional psychiatric analysis of [the
claimant].”) (citations omitted).
B.

Dr. Kahn’s Testimony Was Tainted by Bias.

“[A]n ALJ does not face a claimant . . . in an adversarial
posture.” Peed v. Sullivan, 778 F. Supp. 1241, 1245 (E.D.N.Y.
1991). “Rather, the ALJ has a duty to ensure that the claimant
receives ‘a full hearing under the Secretary’s regulations and in
accordance with the beneficent purpose of the [Social Security]
Act.’” Id. (quoting Gold v. Secretary of Health, Education, and
Welfare, 463 F.2d 38, 43 (2d Cir. 1972); citing Echevarria v.
Secretary of Health and Human Servs., 685 F.2d 751, 755 (2d Cir.

-11-

1982)). When an ALJ confronts a claimant with a negative bias and
without impartiality, he undermines the essentially judicial nature
of an ALJ’s duties. Peed, 778 F. Supp. at 1245. The Court finds
that these principles necessarily apply to witnesses called by an
ALJ on the Commissioner’s behalf.
Dr.

Kahn’s

impairments

bias

pervaded

against
her

claimants

entire

hearing

with

mental

testimony,

health

making

it

difficult to whittle down the objectionable portions to a few
representative examples.

From the outset, Dr. Kahn appeared

overtly hostile toward Plaintiff’s attorney, frequently answering
his questions with a question or refusing to answer the question
asked:
Q5
A

Q

A

Well, but she hasn’t been able to leave her house.
How would she all of a sudden transform herself so
that she’d be able to leave her house?
How does she get to her medical appointments? She
needs to have some medical appointments. She leaves
the house to get her medications, she leaves the
house for those things, so if she leaves the house
for one thing, she can leave the house for another
thing.
Well, she leaves the house on sporadic occasions
with somebody else. I mean she’s not going to be
able to do that if she has a five day a week job.
So if she’s not able to leave the house
independently and hasn’t been able and that’s what
her records show, I’d like to know what the basis
of your opinion is that she would [all of] a sudden
be able to do that.
As I said, she’s able to make her appointments and
she’s able to take care of herself and she is able
to maintain concentration, persistence, and pace.

5

In the quoted excerpts, “Q” indicates questioning by Plaintiff’s
attorney, and “A” indicates responses by Dr. Kahn.

-12-

Q
A

And, you know, so that’s, you know, that’s that.
You know, if she can leave the house for one thing
she can leave the house for another thing.
So if you–
There’s no evidence that she–it’s called being in
psychotherapy and working on a goal. . . .

(T.16).
In addition to refusing to answer some questions outright or
providing non-responsive answers, Dr. Kahn implied that a person
cannot be found disabled unless she has a work history:
Q

No. You’re not—that’s not my question. My question
is, is there any evidence that her mental health
condition, her major depression and PTSD allowed
her to be able to go to work five days a week, for
eight hours a day, from 2008 through April of 2012
when the records end? Is there–I mean is there any
evidence in the records showing her having the
ability to do that?

A

She has no work history. I cannot say for what
reason she has no work history. There are many
reasons why people have no work history besides
mental health conditions. What is her reason for
not having a work history? I do not know. People go
to work with mental health histories. People–I have
had patients who are schizophrenic and they through
kindergarten are exemplary. And then in the summer
they take a nice big de-stressing break. There is
[sic] mental health issues do not prevent you from
working at very high levels. What her reason for
not being able to work is, is not necessarily due
to mental health reason.

(T.25-26).
Dr. Kahn also injected irrelevant commentary throughout her
testimony and dismissed Plaintiff’s diagnosis of PTSD based on her
general belief that very few of individuals diagnosed with PTSD
have “actual PTSD”:

-13-

A

. . . . Everybody has symptoms of depression at
sometimes. Everybody has symptoms of anxiety and
everybody–80 percent of the English population has
had traumatic exposure and very few of the people
who have had traumatic exposure actually suffer
from PTSD. It’s very much what’s [sic] understood.
I’m–actually right now I’m about to get ready to
present on PTSD. It’s very much misunderstood as to
how disabling it isn’t– . . . . Less than 10
percent has actual PTSD. And PTSD is not so
disabling. It is a condition that stables [sic]
usually for years and years. People go around and
function on it. . . .

(T.23-24).
Perhaps most concerning is Dr. Kahn’s repeatedly expressed
belief that mental impairments cannot be disabling:
A

Mental health conditions do not prevent anybody
from working at the highest level of functioning,
period. It is a mental health condition. It does
not impair you to work or to take care of your
personal needs or anything by itself. Symptoms of
mental health issues do not prevent people from
working.
. . .

A

Mental health problems, as you look at the DSM,
there
is
the
difference
between
having
symptomatology. The–[INAUDIBLE] an example of
depression: being sad, being blue, having, you
know, depressed thoughts, being distraught in your
mood. But you know, people still go to work every
day. They may not be fun people to hang around
with. . . . . They maybe can’t wait to come home
and just go back to bed, but they get up, they go
to school, they go to work. There’s no reason.
. . .

A

It does not stop you from functioning, mental
health conditions, unless–there are a few mental
health conditions that do stop you from functioning
and that is, you know, when you have significant
psychosis that is not being controlled. I remind
you by the way that there are schizophrenics who
have won the Nobel Prize–
-14-

. . .
and go to work every day at Simpson University
[sic] and make contributions.
(T.30). These sweeping generalizations by Dr. Kahn are wholly
contrary to basic tenets of Social Security law, regulations and
policy.
The

excerpts

quoted

above

demonstrate

that

the

ALJ’s

psychological expert witness, Dr. Kahn, took on an extremely
adversarial stance vis-à-vis Plaintiff, contrary to the letter and
the spirit of the law. See Gold, 463 F.2d at 43 (“Hearings under
the Social Security Act are non-adversary[.]”) (citation omitted);
Pronti, 339 F. Supp.2d at 492 (“If, in fact, the ALJ holds a
general bias against Social Security claimants, this strikes at the
very core of due process.”). The Court has no difficulty in
concluding that the ALJ’s denial of Plaintiff’s request to strike
Dr. Kahn’s testimony, and his subsequent heavy reliance on that
testimony, was manifestly prejudicial to Plaintiff. Reversal is
required on this basis.
III. Errors in Regard to Treating Psychiatrist’s Opinion
Plaintiff contends that the ALJ erred in failing to develop
the record with regard to the opinion of treating psychiatrist Dr.
Hong Rak Choe. Plaintiff also argues that the ALJ misapplied the
treating source rule in evaluating Dr. Choe’s opinion.
On May 3, 2010, Dr. Choe completed a check-the-box form
concerning Plaintiff’s mental impairments. (T.616-18). The form was

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titled “Medical statement concerning depression with anxiety, OCD,
PTSD or panic disorder for Social Security disability claim.” It is
unclear who generated this form; it does not appear to be from the
Social Security Administration. Under Patient Signs and Symptoms,
Dr.

Choe

placed

checkmarks

next

to

the

following:

sleep

disturbance, decreased energy, feelings of guilt or worthlessness,
difficulty

concentrating

or

thinking,

thoughts

of

suicide,

hallucinations, generalized persistent anxiety, recurrent panic
attacks, and recurrent and intrusive recollections of a traumatic
experience.

(T.616).

Dr.

Choe

then

rated

Plaintiff’s

“Work

Limitations Related to Psychiatric State.” (T.617-18). He opined
that Plaintiff was “not significantly impaired” in her ability to
remember

locations

and

work-like

procedures,

understand

and

remember short and simple instructions, accept instructions and
respond appropriately to criticism from supervisors, get along with
co-workers and peers without distracting them, maintain socially
appropriate
cleanliness,

behavior,

adhere

to

standards

of

neatness

and

remember, understand and carry out short and simple

instructions, be aware of normal hazards and take appropriate
precautions.

Dr.

Choe

opined

that

Plaintiff

was

“moderately

impaired” in her ability to understand and remember detailed
instructions, carry out short and simple instructions and detailed
instructions,

make

simple

work-related

decisions,

ask

simple

questions or request assistance, respond appropriately to changes

-16-

in

the

work

setting,

and

set

realistic

goals

or

make

plans

independently of others. Dr. Choe indicated that Plaintiff was
“markedly impaired” with respect to her ability to
attention
ordinary

and

concentration

routine

without

for

extended

special

periods,

supervision,

and

maintain
sustain

an

travel

in

unfamiliar places or use public transportation. Finally, Dr. Choe
opined that Plaintiff was “extremely impaired” with respect to her
ability to perform activities within a schedule, maintain regular
attendance,
coordination

be

punctual

with

and

within

customary

proximity

with

tolerances,

others

work

without

in

being

distracted by them, complete a normal workday and workweek without
interruptions from psychologically based symptoms, perform at a
consistent pace without an unreasonable number and length of rest
periods,

and

interact

appropriately

with

the

general

public.

Dr. Choe also commented that he had not observed Plaintiff in a
work setting. (T.618). No questions were unanswered and no areas
were left blank on the form.
However, ALJ Weir asked Dr. Choe to clarify his opinion in a
letter dated October 16, 2013. In the letter, ALJ Weir asked
Dr. Choe when he first began treating Plaintiff; what was the
frequency of treatment; what clinical diagnoses led him to assign
the various functional limitations in his report; whether these
limitations existed at the stated severity on June 3, 2006, and, if
so, whether they have continued at that level since then; and if

-17-

the diagnoses and limitations did not exist as of June 3, 2006, for
what period they applied. (T.426). ALJ Weir sent another copy of
the letter to Dr. Choe on November 4, 2013. (T.427). Dr. Choe did
not reply to either letter as of the date of the hearing.
As an initial matter, it appears to this Court that ALJ Weir
sought clarification on some matters that should have been apparent
from a review of the record, such as the start-date of treatment,
and the frequency of treatment. Indeed, the Commissioner was able
to determine that Dr. Choe treated Plaintiff at least until April
2010, and to identify the treatment notes of Plaintiff’s visits
with Dr. Choe. (See Def’s Mem. at 4 (“From October 28, 2008 through
April 5, 2010, Dr. Rak Choe treated Plaintiff. Dr. Choe diagnosed
major depressive disorder with psychotic features, PTSD, rule out
panic disorder, and rule out bipolar disorder. He prescribed
medications

and

supportive

psychotherapy.

During

this

time,

Plaintiff cancelled or missed a number of appointments.”) (internal
citations to record omitted)). Also as discussed above, the record
is incomplete regarding treatment notes from Lake Shore, where
Dr. Choe practiced. Plaintiff’s attorney emphasized at the hearing
that there were additional records from Lake Shore from 2012 to
2014 that had been requested but not provided. As far as what
clinical diagnoses led Dr. Choe to assign the various functional
limitations in his report, the Commissioner again was able to
determine from the record that, according to Dr. Choe, Plaintiff

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had confirmed diagnoses of major depressive disorder with psychotic
features and PTSD, and “rule out” diagnoses of panic disorder and
bipolar disorder. As to the ALJ’s question concerning whether the
limitations existed at the stated severity on June 3, 2006, that
date is incorrect given that Plaintiff later amended her onset date
to April 21, 2010. Furthermore, given that Plaintiff was not
referred to Lake Shore until August 4, 2008 (T.484-88), and did not
start treating with Dr. Choe until October 28, 2008 (T.519-48), it
is doubtful that he would have been able to opine on her mental
health status in June of 2006.
Nevertheless, the final question in ALJ Weir’s letter does
request pertinent information, namely, the specific period during
which the diagnoses and limitations assigned by Dr. Choe applied.
Although Dr. Choe did not leave any items on the form blank, the
form itself did not request information as to the start date of the
limitations.
Also, there is a question as to when Dr. Choe stopped treating
Plaintiff.

As noted above, Plaintiff amended her onset date to

April 21, 2010. While there are treatment notes in the record
confirming that Dr. Choe treated Plaintiff at Lake Shore through at
least April 5, 2010, it is unclear whether he, personally, was
treating her at Lake Shore on the date he completed the disability
questionnaire (May 3, 2010). It is clear, however, that Plaintiff
was getting mental health treatment at Lake Shore in May 2010,

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since the records show she attended psychotherapy with Social
Workers Thomas Grinnell and Thea Pouskaris at Lake Shore through at
least March 12, 2014. (T.924). Plaintiff also saw psychiatrist
Dr. Alicia Saldana at Lake Shore on October 26 and December 21,
2010; and on February 22, March 22, and May 10, 2011. (T.742-47).
This suggests that Dr. Saldana may have taken over Plaintiff’s case
from Dr. Choe sometime between April or May 2010, and October 2010.
However, clarification is required on this and several other issues
regarding Plaintiff’s psychiatric treatment with Drs. Choe and
Saldana. Remand for this purposes is necessary.
Because

the

record

is

incomplete

and

there

are

several

questions that must be answered about the chronology of Plaintiff’s
treatment, the Court finds that it would be premature to address
Plaintiff’s argument that the ALJ misapplied the treating source
rule and erroneously weighed Dr. Choe’s opinion.
CONCLUSION
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision is legally erroneous and is not supported
by substantial evidence. Accordingly, the Commissioner’s decision
is reversed. Defendant’s motion for judgment on the pleadings is
denied, and Plaintiff’s motion for judgment on the pleadings is
granted to the extent that the matter is remanded for further
administrative proceedings consistent with this opinion.

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Specifically, on remand, the Commissioner is directed to use
all means available to obtain the Lake Shore Behavioral Health
treatment records identified as missing by Plaintiff’s attorney at
the second hearing; the Commissioner is directed to send Mental
Residual Functional Capacity Questionnaires to the psychiatrists
who treated Plaintiff during the relevant period, namely, Dr. Hong
Rak Choe6 and Dr. Alicia Saldana;7 the Commissioner is directed to
obtain updated records from Lake Shore Behavioral Health and any
other facilities or providers from which Plaintiff has since
obtained mental health treatment; Plaintiff is directed to supply
the Commissioner with the name and contact information of her
current treating psychiatrist in which case the Commissioner will
send

him

or

Questionnaire;

her
and

a
the

Mental

Residual

Commissioner

will

Functional
direct

Capacity

Plaintiff

to

undergo an in-person consultative psychological examination at the
Commissioner’s expense.

6

It appears, based on this Court’s research, that Dr. Choe is no longer with
Lake Shore. The most recent contact information found for him is 1526 Walden
Avenue, Suite 400 Cheektowaga, NY 14225-4985; [phone] (phone); (716)
896-0318 (fax). See https://health.usnews.com/doctors/hong-choe-88917 (last
accessed Sept. 22, 2017). Therefore, any requests for information by the
Commissioner to Dr. Choe should not be sent to Lake Shore.
7

It appears, based on this Court’s research, that Dr. Saldana is also not
at Lake Shore any more. The most recent contact information found for Dr.
Saldana is VAMC, 3495 Bailey Avenue, Buffalo, NY 14215.
See https://health.usnews.com/doctors/alicia-saldana-800636 (last accessed
Sept. 22, 2017).

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The Clerk of Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

September 25, 2017
Rochester, New York.

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