Opinion
20-CV-06462 (JPO) (OTW)
03-03-2022
MAYDINE ANDERSON, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, [1] Defendant.
HONORABLE J. PAUL OETKEN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Ona T. Wang United States Magistrate Judge
I. Introduction
Plaintiff Maydine Anderson (“Plaintiff”) brings this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of the Commissioner of Social Security's decision denying her application for supplemental security income (“SSI”) and disability insurance benefits (“DIB”). (ECF 25). The parties filed their Joint Stipulation on July 13, 2021, and made cross motions for judgments on the pleadings. (ECF 25). For the reasons below, I recommend that Plaintiff's Motion for Judgment on the Pleadings be GRANTED, the Commissioner's Cross Motion for Judgment on the Pleadings be DENIED, and the case be remanded for further proceedings pursuant to 42 U.S.C. § 405(g).
II. Background
The parties submitted a joint stipulation of facts detailing Plaintiff's medical history, the opinion evidence, and the administrative hearing testimony, which I incorporate by reference. (ECF 25 (“Stip.”) 2-20 (citing Administrative Record, dated January 19, 2021, ECF 10 (“R.”))).
Plaintiff filed applications for SSI and DIB on March 26, 2018, alleging disability beginning December 10, 2017. (R. 18). Plaintiff claimed the following impairments: schizoaffective disorder, bipolar type; post-traumatic stress disorder; generalized anxiety disorder; obesity; asthma; hypertension; and kidney stones with subsequent surgery. (R. 18, 20-21). On September 7, 2018, the Social Security Administration denied Plaintiff's application. (R. 18). On September 20, 2018, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held by videoconference before ALJ Kevin Kenneally on October 3, 2019. (R. 18, 33-57). Both Plaintiff and a vocational expert (“VE”), Kenswa Harry, testified at the hearing. (R. 36-56).
By written decision dated October 15, 2019, ALJ Kenneally found that Plaintiff was not disabled under the Social Security Act and denied her claims. (R. 15-27). ALJ Kenneally found that Plaintiff had the following severe impairments: schizoaffective disorder, bipolar type; post-traumatic stress disorder; generalized anxiety disorder; obesity; asthma; and hypertension. (R. 20). ALJ Kenneally determined, however, that Plaintiff retained the residual functional capacity (“RFC”) to perform medium work, with certain limitations. (R. 22).
The parties erroneously state that ALJ Kenneally issued his decision on October 5, 2019. (Stip. 1).
Based on the determined RFC, ALJ Kenneally found that Plaintiff was unable to perform her relevant past work as a home attendant, sales clerk, or supervisor. (R. 25). ALJ Kenneally found that she could still perform work in the national economy, including as a granulating machine operator or a coating machine operator. (R. 26). On November 18, 2019, Plaintiff requested the Appeals Council review the ALJ's decision denying her claims. (R. 4). The Appeals Council denied Plaintiff's request for review on June 19, 2020, making the ALJ's decision the Commissioner's final decision. (R. 1-6).
III. Analysis
A. Applicable Legal Standard
1. Standard of Review
A motion for judgment on the pleadings should be granted if the pleadings make clear that the moving party is entitled to judgment as a matter of law. However, the Court's review of the Commissioner's decision is limited to an inquiry into whether there is substantial evidence to support the findings of the Commissioner and whether the correct legal standards were applied. Substantial evidence is “more than a mere scintilla” and requires “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” even if there exists contrary evidence. Halloran v. Barnhart, 362 F.3d 28, 30 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Estrella v. Berryhill, 925 F.3d 90, 94 (2d Cir. 2019) (quoting McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014)) (“Substantial evidence is evidence that ‘a reasonable mind might accept as adequate to support a conclusion.'”). This is a “very deferential standard of review.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012). The Court may not determine de novo whether Plaintiff is disabled and must accept the ALJ's findings unless “a reasonable factfinder would have to conclude otherwise.” Id. (citation omitted).
2. Determination of Disability
To be awarded disability benefits, the Social Security Act requires that one have the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 416.905(a). The ALJ makes this determination through a five-step evaluation process, for which the burden rests on the Plaintiff for the first four steps and only after all four steps are satisfied does the burden then shift to the Commissioner for the final step. 20 C.F.R. § 416.920.
First, the ALJ must determine that Plaintiff is not currently engaged in substantial gainful activity. Second, the ALJ must find that Plaintiff's impairment is so severe that it limits her ability to perform basic work activities. Third, the ALJ must evaluate whether Plaintiff's impairment falls under one of the impairment listings in 20 C.F.R. Pt. 404, Subpart P, Appendix 1 (“Listings”) such that she may be presumed to be disabled. Fourth, if Plaintiff's impairment is not listed and is not equal to one of the listed impairments, the ALJ must determine Plaintiff's RFC, or her ability to perform physical and mental work activities on a sustained basis. The ALJ then evaluates whether Plaintiff's RFC precludes her from meeting the physical and mental demands of her prior employment. If Plaintiff has satisfied all four of these steps, the burden then shifts to the Commissioner to prove that based on Plaintiff's RFC, age, education, and past work experience, Plaintiff is capable of performing other work that exists in the national economy. 20 C.F.R § 416.920(a)(4)(i)-(v).
B. The ALJ's Decision
ALJ Kenneally applied the five-step analysis described above and determined that Plaintiff was not disabled, and therefore not entitled to SSA benefits. (R. 18-27). At step one, ALJ Kenneally found that Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date of December 10, 2017. (R. 20). When the ALJ asked why Plaintiff stopped working, Plaintiff testified that she tried to commit suicide, was rushed to the hospital, and was placed in a “psych ward” for 24 hours. (R. 37). Plaintiff testified that she has not been able to return to work since that time because her “symptoms are still the same.” (R. 37).
At step two, ALJ Kenneally found that Plaintiff suffered from the following severe impairments: schizoaffective disorder, bipolar type; post-traumatic stress disorder; generalized anxiety disorder; obesity; asthma; and hypertension. (R. 20). ALJ Kenneally noted that these “medically determinable impairments significantly limit [Plaintiff's] ability to perform basic work activities[.]” (R. 20).
At step three, ALJ Kenneally found that Plaintiff did not have an impairment or combination of impairments that medically equaled the severity of one of the impairments in the Listings. (R. 21).
At step four, ALJ Kenneally calculated that Plaintiff had the RFC to perform medium work as defined in 20 C.F.R. 404.1567(c) and 416.967(c), except that:
[Plaintiff] is limited to never climb ladders, ropes, or scaffolds; never be exposed to unprotected heights, moving mechanical parts, or operate a motor vehicle; and only occasional exposure to humidity, wetness, dust, odors, fumes, pulmonary irritants, extreme cold, or extreme heat. [Plaintiff] is also limited to performing simple, routine tasks; making simple work related decisions; never interact with the general public, dealing with things rather than people; and only occasionally interacting with the co-workers and supervisors. (R. 22).In making this determination, ALJ Kenneally considered the opinion of the psychiatric consultative examiner, Dr. Kerenyi, who examined Plaintiff one time in August 2018. (R. 23). Doctor Kerenyi reported that Plaintiff “alleged a 24-hour hospitalization in December 2017 after she attempted suicide . . . [Plaintiff] then continued treatment with a psychiatrist once a month and a therapist twice a month.” (R. 23).
The ALJ referenced that Dr. Kerenyi's opinion stated Plaintiff “showed poor eye contact, depressed mood, and flat affect, ” but that “[a]ll other mental status results were fairly good” and that Plaintiff “showed fair insight and judgment, mildly impaired memory, intact concentration and attention, average intellectual functioning, normal thought process, no thought disorder, and adequate manner of relating.” (R. 23). Additionally, Dr. Kerenyi noted that Plaintiff “was capable of cooking, carrying [sic] for her personal hygiene, taking the bus, and managing her own money independently, ” and that she “reported socializing well with her children and grandchildren.” (R. 23). The ALJ also stated that Plaintiff's treatment record following Dr. Kerenyi's examination included “improvement and stability” in her condition, despite her occasional “insomnia and outburst[s].” (R. 23). Additionally, the ALJ noted that Plaintiff's treatment record showed that Plaintiff “denied any psychosis symptoms” and that she “only experienced an increase in symptoms when she ran out of medication.” (R. 23-24).
The ALJ cites to a July 2, 2019 report by Dr. Robert Mahler which states, “There are no symptoms of psychosis. . . She is in therapy with Dr. Leiter.” (R. 597).
The ALJ cites to a June 4, 2019 report by Dr. Robert Mahler which quotes Plaintiff as saying, “I ran out of medications last week . . . I feel depressed without them[.]” (R. 600).
Regarding Plaintiff's physical health, ALJ Kenneally contended that “there is a very limited treatment record.” (R. 24). He noted that Plaintiff went to the emergency room for “chest pain” and “other unrelated causes, ” but that she “showed normal physical examinations with normal range of motion, full muscle strength, and intact neurological sensation.” (R. 24). ALJ Kenneally further noted that although Plaintiff was obese, she had “intact reflexes, normal respiratory functioning, and normal movement.” (R. 24). ALJ Kenneally found that Plaintiff's impairments “could reasonably be expected to cause the alleged symptoms, but did not specify whether he meant Plaintiff's physical or mental symptoms. (R. 24).
The Social Security guidelines state that obesity increases the risk of developing mental impairments. See SSR 19-2p: Titles II and XVI: Evaluating Cases Involving Obesity, Policy Interpretation Ruling, Section 2, “Which impairments are associated with obesity?” (“Obesity also increases the risk of developing . . . Mental impairments (for example, depression).”).
ALJ Kenneally then determined that Plaintiff's statements about the intensity, persistence and limiting effects of the “symptoms, ” however, were “not entirely consistent with the medical evidence and other evidence in the Record.” (R. 24). He noted that the claimant “continues to feel depressed with mood swings, anger, crying spells, and anxiety, ” and “[a]lthough [Plaintiff's] medication has calmed her down, [she] alleged continued irritability towards others, uncontrollable anger, and difficulty maintaining attention and concentration.” (R. 24). ALJ Kenneally also recognized that Plaintiff reported having blackouts, and that she relied on her daughter for household chores. (R. 24). Despite this, ALJ Kenneally went on to say that the medical record “[did] not support the intensity and limiting effects of these symptoms” because:
the claimant has shown overall good mental status examination results with medication and has only received conservative treatment to achieve these. She has not been hospitalized for an extended period of time. Likewise, she has reported being able to cook, take public transportation through busses, and managing her own money independently. In regards to the claimant's blackouts . . . the claimant's record does not show any support by any neurologist or psychologist to support a diagnosis of the alleged symptoms . . . Lastly, in regards
to the claimant's physical capacity, the claimant has shown a controlled asthma and hypertension. Her physical examinations also show normal results with no limiting effects due to her obesity. (R. 24).ALJ Kenneally then considered the respective persuasiveness of the medical opinions of Dr. Wiedershine, Plaintiff's treating physician, and Dr. Harding, the State agency medical consultant. ALJ Kenneally did not discuss the persuasiveness of Dr. Kerenyi's medical opinion at all.
The ALJ wrote that Dr. Wiedershine “opined that the clamant [sic] had marked limitations in understanding, remembering, or applying information, interacting with others, and adapting or managing herself with extreme limitations in concentrating, persisting, or maintaining pace.” (R. 25). ALJ Kenneally found that Dr. Wiedershine's medical opinion was unpersuasive. Specifically, he reasoned that the opinion was “not consistent with the medical record” because: (1) Plaintiff was only hospitalized once; (2) “conservative treatment was enough to stabilize her condition”; and (3) Plaintiff showed “mostly normal mental status examinations.” (R. 25). The ALJ does not cite to any medical opinions to support this explanation. Later in the paragraph, the ALJ cites Exhibits 1F, 2F, 5F and 11F, but these reports do not support this explanation. (R. 24). Notably, the ALJ completely ignored the reports and opinions of a treating psychiatrist, Dr. Eli Leiter, who treated Plaintiff at Essen Medical after Dr. Wiedershine left the practice. (R. 242) (showing first visit was 08/01/2018). Dr. Harding “found overall moderate limitations in the claimant's ability to interact with others, concentration, persistence, and maintain pace, and adaptation or managing oneself.” (R. 25). ALJ Kenneally found that Dr. Harding's psychological assessment was “generally persuasive” because it was “generally consistent” with the Record and ALJ Kenneally's own findings of “marked limitations in social functioning.” (R. 25). The ALJ did not speak to the supportability of either Dr. Wiedershine's or Dr. Harding's opinion.
Exhibit 1F consists of “Emergency Department Triage/Assessment” forms all of which are from August 28, 2018, at 8:34 am. These forms include a “Suicide Screen: Mental Status” section, indicating whether the patient is alert and oriented, wished they were dead, thought about killing themselves, or have done anything to prepare to end their lives. (R. 313, 316, 323, 325, 344, 407). While some pages show Plaintiff indicated “no” to these questions, other paperwork (from the same date and time) show she listed “yes.” (R. 325). Exhibit 2F does not reference any mental status exams. It lists Plaintiff's “Current Diagnoses” as (1) “Bipolar disorder, most recent episode (or current) depressed, severe, specified as with psychotic behavior”; (2) “Posttraumatic stress disorder”; (3) “Attention deficit disorder of childhood with hyperactivity; and (4) “Obsessive-compulsive disorders.” Exhibit 5F is Dr. Kerenyi's report, which stated, among other things, that Plaintiff reported feeling depressed, had her eyes closed throughout most of the evaluation, and had flat affect. Exhibit 11F are 139 pages of Plaintiff's Medical Records from Essen Medical Associates, which report a wide range of psychological behavior, addressed infra.
Dr. Kerenyi reported that as of August 6, 2018, Plaintiff “currently sees a psychiatrist, Dr. Wiedershine, once a month since 01/18.” (R. 369). While Dr. Wiedershine was her prescribing doctor through August 9, 2018 (R. 264), PA Erin Pomales noted on May 3, 2018 that Plaintiff is “aware that [Dr. Wiedershine] is no longer with Essen and will find another provider.”) (R. 681). By February 2019, Plaintiff had apparently been seeing psychiatrist Dr. Eli Leiter, presumably in place of Dr. Wiedershine, and apparently as frequently as once a week, “[b]ecause of her acute distress.” (R. 625) (emphasis added).
ALJ Kenneally found that Plaintiff's past relevant work included home attendant, sales clerk, and supervisor. (R. 25). VE Harry testified that Plaintiff's RFC precluded her from performing past relevant work. (R. 25). When asked a hypothetical of what a person with these limitations could do, the VE testified that being more 10% off task or absent more than one day a month would preclude all work. (R. 51-52). Based on this testimony, ALJ Kenneally agreed that Plaintiff was unable to perform any past relevant work. (R. 25). At step five, relying on VE Harry's testimony, ALJ Kenneally found that jobs existed in “significant numbers” in the national economy that Plaintiff could perform, given her RFC, age, education, and work experience. (R. 26). VE Harry testified that Plaintiff could perform work as a granulating machine operator and coating machine operator. (R. 26). After concluding that VE Harry's testimony was consistent with the information contained in the Dictionary of Occupational Titles, ALJ Kenneally determined that Plaintiff could perform those jobs and, therefore, was not disabled, and not entitled to social security benefits. (R. 26-27).
C. Analysis of ALJ Kenneally's Decision
Upon review of the Joint Stipulation, the Record, and ALJ Kenneally's decision, I find that ALJ Kenneally's evaluations of the medical opinions did not comply with the requirements of the new regulations in 20 C.F.R. §§ 404.1520c and 416.920c. Specifically, ALJ Kenneally failed to appropriately articulate why he found the medical opinions persuasive or unpersuasive. (R. 22-25). Additionally, the ALJ impermissibly cherrypicked from Dr. Wiedershine's opinion. For these reasons, ALJ Kenneally's decision is not supported by substantial evidence, and I recommend that the Court remand for further proceedings.
1. The Treating Physician Rule and the New Regulations
When evaluating the assessments of medical experts, courts previously applied the treating physician rule. The treating physician rule required an ALJ to weigh the medical opinions of a claimant's medical sources and give “controlling weight to a treating physician if those opinions were ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques and [were] not inconsistent with other substantial evidence in [the] case record.'” Acosta Cuevas v. Comm'r of Soc. Sec., No. 20-CV-0502 (AJN)(KHP), 2021 WL 363682, at *9 (S.D.N.Y. Jan. 29, 2021) (quoting 20 C.F.R. § 404.1527(d)(2)).
For claims such as this one, filed on or after March 17, 2017, ALJs apply the new regulations in 20 C.F.R. §§ 404.1520c and 416.920c in lieu of applying the treating physician rule. See Acosta Cuevas, 2021 WL 363682, at *9 (collecting cases). Under the new regulations, ALJs “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s).” 20 C.F.R. § 416.920c(a). Instead, ALJs “will articulate in [their] determination or decision how persuasive [they] find all of the medical opinions.” 20 C.F.R. § 416.920c(b) (emphasis added). ALJs must consider all medical opinions and determine their respective persuasiveness considering: supportability; consistency; relationship of the medical source to the claimant; specialization; and “other factors.” 20 C.F.R. § 404.1520c(c)(1)-(5).
The supportability and consistency factors are the “most important.” 20 C.F.R. § 416.920a. Accordingly, the regulations mandate that ALJs “will explain how [they] considered the supportability and consistency factors for a medical source's medical opinions.” 20 C.F.R. § 416.920c(b)(2) (emphasis added); see also Rivera v. Comm'r of Soc. Sec., No. 19-CV-4630 (LJL)(BCM), 2020 WL 8167136, at *22 (S.D.N.Y. Dec. 30, 2020), R. & R. adopted, 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021) (remanding so that ALJ may “reevaluate the persuasiveness assigned to the opinion evidence of record and explicitly discuss both the supportability and the consistency of the consulting examiners' opinions”); Vellone v. Saul, No. 20-CV-261 (RA)(KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021), R. & R. adopted, 2021 WL 2801138 (S.D.N.Y. July 6, 2021) (“[I]n cases where the new regulations apply, an ALJ must explain his/her approach with respect to the first two factors when considering a medical opinion.”) (emphasis in original). “Supportability” is “the objective medical evidence and supporting explanations presented by a medical source.” 20 C.F.R. § 404.1520c(c)(1). “Consistency” refers to how the medical source's opinions compare with “evidence from other medical sources and nonmedical sources in the claim.” 20 C.F.R. § 404.1520c(c)(2). Although ALJs are only required to articulate their consideration of those two factors, ALJs must consider all five factors when determining a medical opinion's persuasiveness. 20 C.F.R. § 416.920c(c).
i. Dr. Kerenyi, Psychiatric Consultive Examiner
ALJ Kenneally did not articulate how persuasive he found Dr. Kerenyi's opinion, but still relied heavily on it when determining Plaintiff's RFC. (R. 23). ALJ Kenneally failed to discuss the supportability of Dr. Kerenyi's opinion and its consistency with the Record. The Commissioner argues that ALJ Kenneally implicitly considered the persuasiveness of Dr. Kerenyi's opinion by relying on it. (Stip. 36). The Commissioner argues that “[a]n ALJ's failure to cite specific evidence does not indicate that such evidence was not considered.” Id. (internal citations omitted). The regulations, however, required the ALJ to articulate the persuasiveness of Dr. Kerenyi's opinion, with attention to the supportability and consistency of the opinion. See supra Section C.1. The ALJ did not do this.
ALJ Kenneally's unarticulated reliance on Dr. Kerenyi's opinion is especially problematic since Dr. Kerenyi only examined Plaintiff once. Novaro v. Comm'r of Soc. Sec., 511 F.Supp.3d 243, 245 (E.D.N.Y. 2020) (finding that a psychiatric consultative examiner's medical opinion was “of little probative value” because “[h]e examined [the] plaintiff one time”). The Second Circuit has “cautioned that ALJs should not rely heavily on the findings of consultative physicians after a single examination.” Estrella v. Berryhill, 925 F.3d 90, 98 (2d Cir. 2019) (internal citation omitted) (quoting Selian v. Astrue, 708 F.3d 409, 419 (2d Cir. 2013)). This is because “a one-time snapshot of a claimant's status may not be indicative of her longitudinal mental health.” Id. Although it is “not per se legal error for an ALJ to give greater weight to a consulting opinion than a treating opinion, ” Rivera v. Colvin, No. 13-CV-7150, 2015 WL 1027163, at *16 (S.D.N.Y. Mar. 9, 2015), such a decision “must be based upon proper consideration of relevant factors and sufficiently explained.” Mercado v. Colvin, No. 15-CV-2283, 2016 WL 3866587, at *20 (S.D.N.Y. July 13, 2016).
Because ALJ Kenneally did not provide an explanation of why he found Dr. Kerenyi's opinion persuasive, I cannot determine whether ALJ Kenneally had good reason to rely on it. This concern is magnified because ALJ Kenneally relied on an opinion that “is of little probative value, ” Novaro, 511 F.Supp.3d at 245, over an opinion that the new regulations “naturally suggest . . . will often be given greater weight.” Shawn H., 2020 WL 3969879, at *6.
ii. Dr. Harding, Non-Examining Psychiatric Consultant
ALJ Kenneally also found Dr. Harding's opinion to be “generally persuasive” despite not discussing the supportability factor at all. (R. 25). It is essential that the Court understand ALJ Kenneally's reasoning for finding a state non-examining medical consultant's assessment persuasive, especially since “mental disabilities are difficult to diagnose without subjective, in-person examination[s].” Richardson v. Astrue, No. 09-CV-1841 (SAS), 2009 WL 47939994, at *7 (S.D.N.Y. Dec. 14, 2009); see also Rodriguez v. Astrue, No. 07-CV-534 (WHP)(MHD), 2009 WL 637154, at *26 (S.D.N.Y. Mar. 9, 2009) (internal quotation marks and citation omitted) (holding that in the context of mental disability, the findings of a non-examining physician “should have been discounted or addressed with some scepticism [sic] because they were largely inconsistent with the examining physicians' findings and did not account for the subjective nature of the patient's [mental illness]”). Even outside of the mental illness context, the general rule in the Second Circuit is that “the written reports of medical advisers who have not personally examined the claimant deserve little weight in the overall evaluation of disability” because “[a non-examining consultant's] assessment of what other doctors find is hardly a basis for competent evaluation without a personal examination of the claimant.” Vargas v. Sullivan, 898 F.2d 293, at 295-96 (2d Cir. 1990) (internal quotation marks and citation omitted).
Dr. Harding's assessment, which he submitted on August 16, 2018, preceded much of Plaintiff's treatment by more than a year. (Stip. 9, 16-20). 20 C.F.R. § 416.920c(c)(5) instructs that ALJs “will also consider whether new evidence we receive after [a] medical source made his or her medical opinion . . . makes the medical opinion . . . more or less persuasive.” ALJ Kenneally's failure to explicitly reconcile Dr. Harding's assessment with evidence that followed it suggests that ALJ Kenneally did not consider all five required factors, even if he is only required to articulate his consideration of the supportability and consistency factors under 20 C.F.R. § 416.920c(b).
iii. Dr. Wiedershine, Treating Physician
Although ALJs no longer apply the treating physician rule, “the essence of the [new regulations] remains the same” as that of the old regulations, and the factors ALJs must consider in assigning persuasiveness to the medical opinions in a claimant's medical history are substantially similar. Acosta Cuevas, 2021 WL 363682, at *9 (collecting cases); Velasquez v. Kijakazi, No. 19-CV-9303 (DF), 2021 WL 4392986, at *20 (S.D.N.Y. Sept. 24, 2021) (citation omitted) (alterations in original) (“[T]hose courts that have been ‘presented with these [new] regulations have concluded that the factors are very similar to the analysis under the old [treating physician] rule.”).
Dr. Wiedershine treated Plaintiff once a month, beginning 6 weeks after her suicide attempt in December 2017 (R. 711) through either May or August 2018. (R. 681, 369). At the initial assessment, Dr. Wiedershine noted that Plaintiff had a history of the full spectrum of manic symptoms, and that Plaintiff presently complained of depression, mood swings, feelings of hopelessness, worthlessness, restlessness, panic attacks, hyperactivity, impulsivity, paranoia, physical aggression, racing mind, and sleeping only two to three hours each night. (R. 711). Plaintiff reported to Dr. Wiedershine flashbacks of her husband's cheating and father's physical abuse. (R. 711). She also reported that she checked the locks on her door eight times in a row, fixed her bed sheets constantly, cleaned her apartment six times a day, and rearranged her dresser all the time. (R. 711). Dr. Wiedershine further assessed Plaintiff as obese with a constricted affect, depressed and anxious mood, poor judgment, impaired recent and remote memory, impaired thought content due to paranoia and visual hallucinations, high aggression, poor impulse control, and noted that she had experienced “[h]omicidality” a few days before this assessment. (R. 712).
As the Record shows, Plaintiff often saw Dr. Wiedershine more than once a month. (R. 695, 696, 683, 688).
Over the next several months, Plaintiff continued to report the same symptoms, and Dr. Wiedershine diagnosed Plaintiff as depressed, manic, and aggressive. Plaintiff's weight fluctuated between 219 and 225 pounds over the time that Dr. Wiedershine treated her. (R. 682, 688). At times there was some improvement in Plaintiff's condition because she did not report suicidal ideation, but in later months she did. (R. 709, 700-01). Plaintiff was further diagnosed with Bipolar Disorder, “severe” depression “with psychotic features, ” PTSD, ADHD, and “Mixed Obsessional Thoughts and Acts.” (R. 709-10).
Plaintiff often reported social incidents that led Dr. Wiedershine to determine that she was still in mania and was unstable. (R. 700). For example, on February 22, 2018, Plaintiff reported that her husband had called the police after she beat him with an umbrella. (R. 700). On April, 5, 2018, Plaintiff reported choking her husband the day before. (R. 688). On April 19, 2018, Plaintiff said that she was still angry with her family and was not speaking with them, and that she “pulled out a knife on her husband.” (R 682). She further reported to Dr. Wiedershine that she wanted to beat up her sister-in-law because she did not appreciate Plaintiff, and that she was in a constant dispute with her daughters. (R. 688, 684). During Dr. Wiedershine's treatment, Plaintiff reported (and on one occasion was hospitalized for) chest pain. (R. 315-18; 334-35; 682; 685-86; 690-92; 697-99).
ALJ Kenneally impermissibly “cherry-picked” parts of Dr. Wiedershine's medical opinion when discrediting it. It is well established that an ALJ may not “cherry-pick[] evidence in order to assign [a medical opinion] . . . weight.” Marrero Santana v. Comm'r of Soc. Sec., 2019 WL 2330265, at *12 (S.D.N.Y. Jan. 17, 2019), R. & R. adopted, 2019 WL 2326214 (May 30, 2019). ALJ Kenneally discounted Dr. Wiedershine's opinion in part because Plaintiff allegedly “show[ed] mostly normal mental status examinations.” (R. 25). This interpretation is far from obvious and is not supported by the Record. For example, on February 19, 2019, the parties stipulate that Plaintiff “was calm and cooperative and denied any acute distress.” (R. 626). But, on February 22, 2019, Plaintiff “found herself angry[, ] crying [and] feeling out of control” and began to meet with her therapist once a week. (R. 625). On March 19, 2019, she was again “calm and cooperative.” (R. 615). Then, on April 1, 2019, she “went on a rampage at her husband's apartment.” (R. 608). On April 15, 2019, she reported “general improvement, ” but on June 4, 2019, “her mood was irritable and depressed.” (R. 606, 600-01). On July 2, 2019, she reported “feel[ing] tired all the time” and “isolative.” (R. 597). On August 1, 2019, she “complained of feeling tired and isolative . . ., statesd [sic] that she had had a lot of outbursts recently . . ., [and] had nightmares about hurting others.” (R 594). This medical history suggests that Plaintiff may not have had “generally good mental status examinations.” (R. 25). Indeed, “a person who is well enough to work half of the time but not well enough to work the other half of the time, cannot hold down a full-time job.” Benitez, 2021 WL 4239244, at *17; Bodden v. Colvin, No. 14-CV-08731 (SN), 2015 WL 8757129, at *9 (S.D.N.Y. Dec. 14, 2015) (noting that because of the cyclical nature of mental health impairments, exacerbated by stressors, a longitudinal picture of a claimant's mental health “cannot readily be achieved by a single consultative examination”).
By February 19, 2019, Plaintiff was seeing psychiatrist, Dr. Leiter, who was Plaintiff's second treating physician. See supra n. 5. The ALJ ignored Dr. Leiter's opinions entirely.
While it is unnecessary for me to determine whether the ALJ properly evaluated Plaintiff's symptoms, it is worth noting that the ALJ relied on Dr. Kerenyi's opinion in concluding that Plaintiff could “cook[, ]” and “take transportation through busses, ” even though Plaintiff testified that she cannot go outside alone and does no household chores. (R. 24, 39). Similarly, regarding Plaintiff's blackouts, the ALJ found that the “record does not show any support by any neurologist or psychologist to support a diagnosis of the alleged symptoms.” (R. 24). Yet, Plaintiff testified that she had gone to a neurologist and was awaiting test results. (R. 39, 594, 603, 607, 608, 611) (psychologist urging Plaintiff to go to a neurologist for her blackouts).
At one point, the ALJ accepted some portion of Dr. Wiedershine's opinion, noting that he was giving Plaintiff the “benefit of the doubt.” (R. 21). Shortly after that, however, the ALJ rejects Dr. Wiedershine's opinion as “unpersuasive.” The same history of Plaintiff's psychosis underlies all of Dr. Wiedershine's opinion. The ALJ cannot both rely on some portions of Dr. Wiedershine's opinion while discounting other portions, without any explanation for his reasoning. Particularly where, as here, the ALJ violates the new rules by failing to address the supportability of Dr. Wiedershine's opinion entirely, and Dr. Leiter's opinion, at all. See 20 C.F.R. § 404.1520c(c)(1); Rivera v. Comm'r of Soc. Sec., No. 19-CV-4630 (LJL)(BCM), 2020 WL 8167136, at *22 (S.D.N.Y. Dec. 30, 2020), R. & R. adopted, 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021).
Relying on Dr. Wiedershine's opinion, the ALJ assessed Plaintiff to have “marked limitations” in socialization and “moderate limitations” in concentration and adaptation due to her history of psychosis. (R. 25).
The Commissioner claims harmless error. (Stip. 36). Since ALJ Kenneally did not adequately explain his consideration of the persuasiveness of any of the medical assessments, and, indeed, ignored treating physician Dr. Leiter's opinion entirely, I cannot “conduct a meaningful review of the ALJ's decision and cannot conclude that his errors were harmless.” Harris v. Comm'r of Soc. Sec., No. 17-CV-3867 (KAM), 2020 WL 1941229, at *12 (E.D.N.Y. Apr. 22, 2020). Dr. Wiedershine opined that Plaintiff would likely miss two or more days of work per month. (R. 362). The VE testified that someone who would miss two or more days of work per month would be precluded from all work. (R. 51-52). If ALJ Kenneally had found even that particular portion of Dr. Wiedershine's opinion persuasive, ALJ Kenneally would have incorporated it into the RFC, which in turn would have led him to find that Plaintiff was precluded from all work. At that point, Plaintiff's application for SSI and DBI would have been successful.
IV. Conclusion
For the reasons stated above, I recommend that Plaintiff's Motion for Judgment on the Pleadings be GRANTED, the Commissioner's Cross-Motion for Judgment on the Pleadings be DENIED, and the case be remanded for further proceedings pursuant to 42 U.S.C. § 405(g).
V. Objections
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report and Recommendation to file written objections. See also Fed. R. Civ. P. 6. A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable J. Paul Oetken, United States District Judge. Any request for an extension of time for filing objections must be directed to Judge Oetken. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
SO ORDERED.