Opinion
Civil Action 5:22-CV-0322 (FJS/DEP)
05-31-2023
CRAIG A. P., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
FOR PLAINTIFF OLINKSY LAW GROUP OF COUNSEL: KAELIN RICHARD, ESQ., HOWARD D. OLINSKY, ESQ. FOR DEFENDANT SOCIAL SECURITY ADMIN. OFFICE OF GENERAL COUNSEL OF COUNSEL: NATASHA OELTJEN, ESQ., GEOFFREY PETERS, ESQ.
FOR PLAINTIFF OLINKSY LAW GROUP OF COUNSEL: KAELIN RICHARD, ESQ., HOWARD D. OLINSKY, ESQ.
FOR DEFENDANT SOCIAL SECURITY ADMIN. OFFICE OF GENERAL COUNSEL OF COUNSEL: NATASHA OELTJEN, ESQ., GEOFFREY PETERS, ESQ.
REPORT AND RECOMMENDATION
DAVID E. PEEBLES, U.S. Magistrate Judge
Plaintiff has commenced this proceeding, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), to challenge a determination of the Commissioner of Social Security (“Commissioner”) finding that he was not disabled at the relevant times and, accordingly, is ineligible for the supplemental security income (“SSI”) benefits for which he has applied. The matter has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3. For the reasons set forth below, I recommend a finding that the Commissioner's determination did not result from the application of proper legal principles and is not supported by substantial evidence.
I. BACKGROUND
Plaintiff was born in November of 1985, and is currently thirty-seven years of age. He was thirty-four years old on January 21, 2020, the date upon which he filed his application for benefits. Plaintiff measures six feet and two inches in height, and weighed approximately two hundred and sixty pounds during the relevant period. He lives on his own in an apartment in Auburn, New York.
Plaintiff reports that he graduated high school and completed some college courses, but did not receive a degree. He has worked in the past as an automotive parts salesman and store manager, and a dock worker for a commercial bakery. He stopped working in September of 2012.
Plaintiff alleges that he suffers from degenerative disc disease in his neck and lower back, multiple fractures in his right hand, major depressive disorder, a generalized anxiety disorder, and chronic diarrhea post gallbladder removal. As is relevant to his application, plaintiff has treated for his physical impairments with Dr. Jeffrey LeGrett with Internal Medicine Associates of Auburn, Syracuse Orthopedic Specialists, New York Spine and Wellness, Auburn Orthopedic Specialists, and Auburn Community Hospital. He has also received treatment for his mental impairments from Psychiatric Mental Health Nurse Practitioner (“NP”) Stephanie Bizzari at Cayuga County Community Mental Health Center and Unity House of Cayuga County.
Plaintiff alleges that he stopped working due to back pain, which he reports is constant, radiates into his hips, and makes it difficult for him to do much of anything, including sitting in a normal chair. He states that he was previously taking pain medication, but now uses marijuana, which does not relieve the pain but instead makes it so he does not focus on the pain. Plaintiff also testified that he experiences pain in his neck that causes difficulties with carrying even light objects, and that he has a long history of breaking bones in his right hand such that he does not have much feeling in some of his fingers. He further reports difficulty walking down stairs due to a knee issue. Plaintiff also claims to experience significant anxiety and depression, which cause diarrhea, excessive sleep, isolation, and thoughts of dying. He shops only twice a month and stays home most of the time because he does not deal well with people and he is afraid he will have a diarrhea episode while outside the house. In terms of activities, plaintiff reports that he can perform self-care and grooming, although depression makes those difficult at times, and is able to do chores albeit at his own pace. When walking his dog, he must take breaks to sit, must slouch when he sits due to his pain, and has difficulty lifting, carrying, and reaching because of neck pain.
II. PROCEDURAL HISTORY
A. Proceedings Before the Agency
Plaintiff applied for SSI payments under Title XVI of the Social Security Act on January 21, 2020.Administrative Law Judge (“ALJ”) Elizabeth W. Koennecke held administrative hearings related to that application on June 8, 2021, and November 9, 2021, to address plaintiff's SSI application, and subsequently issued a decision on November 19, 2021, finding that plaintiff was not disabled. That opinion became a final determination of the agency on February 15, 2022, when the Social Security Appeals Council (“Appeals Council”) denied plaintiff's request for review of the ALJ's decision.
An earlier application, filed by the plaintiff seeking disability insurance benefits under Title II of the Act, was denied on May 1, 2019, in a decision by another Administrative Law Judge. Administrative Transcript at 153-65. There is no indication in the record that plaintiff sought review of that determination.
B. The ALJ's Decision
In her decision, ALJ Koennecke applied the familiar, five-step sequential test for determining disability. At step one, she found that plaintiff has not engaged in substantial gainful activity since the date upon which he filed his application for benefits. The ALJ next found at step two that plaintiff suffers from severe impairments that impose more than minimal limitations on his ability to perform basic work functions, including degenerative disc disease of the cervical and lumbar spine, and mental diagnoses as variously characterized in the record. As part of her step two finding, ALJ Koennecke also concluded that plaintiff's alleged obesity post gastric bypass surgery, hypertension, and right-sided metacarpal fractures do not constitute severe impairments within the meaning of the Act.
At step three, ALJ Koennecke examined the governing regulations of the Commissioner setting forth presumptively disabling conditions (the “Listings”), see 20 C.F.R. Pt. 404, Subpt. P, App. 1, and concluded that plaintiff's conditions do not meet or medically equal any of the listed conditions set forth in those regulations, specifically considering Listings 1.15, 1.16, 12.04, and 12.06.
ALJ Koennecke next surveyed the available record evidence and concluded that, notwithstanding her conditions, plaintiff retains the residual functional capacity (“RFC”) to perform a range of work at the sedentary exertional level, as defined by the controlling regulations, with the following exceptions:
he can perform all postural activities frequently and retains the ability to: understand and follow simple instructions and directions; perform simple tasks independently; maintain attention and concentration for simple tasks; regularly attend to a routine and maintain a schedule; handle simple, repetitive work-related stress in that the claimant can make occasional decisions directly related to the performance of simple tasks in a position with consistent job duties that does not require the person to supervise or manage the work of others; should avoid work requiring more complex interaction or joint effort to achieve work goals; and can tolerate superficial contact with the public.ALJ Koennecke went on to step four and concluded that plaintiff is unable to perform his past relevant work. The ALJ then proceeded to step five and, after eliciting testimony from a vocational expert, found that plaintiff remains able to perform available work in the national economy, citing the representative positions of document preparer, addresser, and escort vehicle driver. Based upon these findings, ALJ Koennecke determined that plaintiff was not disabled at the relevant times.
C. This Action
Plaintiff commenced this action on April 5, 2022.In support of his challenge to the ALJ's determination, plaintiff argues that the ALJ failed to properly assess any of the opinions from plaintiff's treating sources or the consultative examiner in the record by failing to adequately and fully consider the factors of supportability and consistency related to those opinions. Dkt. No. 10.
This action is timely, and the Commissioner does not argue otherwise. It has been treated in accordance with the procedures set forth in the recently enacted Supplemental Social Security Rules and General Order No. 18. Under those provisions, the court treats the action procedurally as if cross-motions for judgment on the pleadings have been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Oral argument was conducted in this matter, by telephone, on May 25, 2023, at which time decision was reserved.
III. DISCUSSION
A. Scope of Review
A court's review under 42 U.S.C. § 405(g) and 1383(c)(3) of a final decision by the Commissioner is subject to a “very deferential” standard of review, and is limited to analyzing whether the correct legal standards were applied, and whether the decision is supported by substantial evidence. Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Where there is reasonable doubt as to whether an ALJ has applied the proper legal standards, the decision should not be affirmed even though the ultimate conclusion reached is arguably supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). If, however, the correct legal standards have been applied, and the ALJ's findings are supported by substantial evidence, those findings are conclusive, and the decision will withstand judicial scrutiny regardless of whether the reviewing court might have reached a contrary result if acting as the trier of fact. Veino, 312 F.3d at 586; Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988); see also 42 U.S.C. § 405(g).
The term “substantial evidence” has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 390, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); accord, Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003). To be substantial, there must be “more than a mere scintilla” of evidence scattered throughout the administrative record. Richardson, 402 U.S. at 401 (internal quotation marks omitted); Williams, 859 F.3d at 258. “To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis on the substantiality of the evidence must also include that which detracts from its weight.” Williams, 859 F.2d at 258 (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Mongeur v. Hechler, 722 F.2d 1033, 1038 (2d Cir. 1983)).
B. Disability Determination: The Five-Step Evaluation Process
The Social Security Act (“Act”) defines “disability” to include 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). In addition, the Act requires that a claimant's
physical or mental impairment or impairments [be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.Id. § 423(d)(2)(A).
The agency has prescribed a five-step evaluative process to be employed in determining whether an individual is disabled. See 20 C.F.R. §§ 404.1520, 416.920. The first step requires a determination of whether the claimant is engaged in substantial gainful activity (“SGA”); if so, then the claimant is not disabled, and the inquiry need proceed no further. Id. §§ 404.1520(b), 416.920(b). If the claimant has not worked at a level constituting SGA, then the second step involves an examination of whether the claimant has a severe impairment or combination of impairments that significantly restricts his or her physical or mental ability to perform basic work activities. Id. §§ 404.1520(c), 416.920(c). If the claimant is found to suffer from such an impairment, the agency must next determine whether it meets or equals an impairment listed in Appendix 1 of the regulations. Id. §§ 404.1520(d), 416.920(d); see also id. Part 404, Subpt. P, App. 1. If so, then the claimant is “presumptively disabled.” Martone v. Apfel, 70 F.Supp.2d 145, 149 (N.D.N.Y. 1999) (citing Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984)); 20 C.F.R. §§ 404.1520(d), 416.920(d).
If the claimant is not presumptively disabled, step four requires an assessment of whether the claimant's RFC precludes the performance of his or her past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). If it is determined that it does, then as a final matter, at step five the agency must examine whether the claimant can do any other work. Id. §§ 404.1520(g), 416.920(g).
The burden of showing that the claimant cannot perform past work lies with the claimant. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Ferraris, 728 F.2d at 584. Once that burden has been satisfied, however, it becomes incumbent on the agency to prove that the claimant is capable of performing other available work. Perez, 77 F.3d at 46. In deciding whether that burden has been met, the ALJ should consider the claimant's RFC, age, education, past work experience, and transferability of skills. Ferraris, 728 F.2d at 585; Martone, 70 F.Supp.2d at 150.
C. Analysis
Plaintiff challenges the ALJ's assessment of the opinion evidence provided individually by consultative examiner Dr. John Laurence Miller and treating primary care physician Dr. Jeffrey LeGrett, as well as the joint statements submitted by Dr. Maria Iannolo and therapist Traci Zmarthie, and by Dr. Michael Pratts and NP Stephanie Bizzari. Dkt. No. 10. Specifically, plaintiff argues that the ALJ generally failed to appropriately and fully consider the regulatory factors of supportability and consistency when finding all of the above opinions to be either only partially persuasive or unpersuasive altogether.
Because plaintiff's application was filed after March 27, 2017, this case is subject to the amended regulations regarding opinion evidence. Under those regulations, the Commissioner “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s), . . . including those from your medical sources,” but rather will consider whether those opinions are persuasive by primarily considering whether the opinions are supported by and consistent with the record in the case. 20 C.F.R. § 416.920c(a); see 82 Fed.Reg. 5844-01, 2017 WL 168819, at *5853 (stating that, in enacting the new regulations, the agency was explicitly “not retaining the treating source rule”). An ALJ must articulate in his or her determination as to how persuasive he or she finds all of the medical opinions and explain how he or she considered the supportabilityand consistencyof those opinions. 20 C.F.R. § 416.920c(b). The ALJ also may - but is not required to - explain how he or she considered the other relevant enumerated factors related to the source's relationship with the claimant, including the length of any treatment relationship, the frequency of examinations by the source and the purpose and extent of the treatment relationship, whether the source had an examining relationship with the claimant, whether the source specializes in an area of care, and any other factors that are relevant to the persuasiveness of that source's opinion. 20 C.F.R. § 416.920c(c).
On the matter of supportability, the regulations state that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinion or prior administrative medical findings(s) will be.” 20 C.F.R. § 416.920c(c)(1).
On the matter of consistency, the regulations state that “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 416.920c(c)(2).
Although the ALJ's decision is thorough in many respects, and includes a comprehensive recitation of plaintiff's medical treatment history spanning across eleven pages, I find that her explanation for finding the joint opinion of Dr. Pratts and NP Bizzari not to be particularly persuasive is insufficient to allow meaningful judicial review as to all aspects of that opinion, such that remand is required.
In a form dated May 13, 2021, treating psychiatric nurse practitioner Stephanie Bizzari and Dr. Michael Pratts co-signed an assessment of plaintiff's mental functioning.Administrative Transcript (“AT”) at 2686-88.
I note that, although Dr. Pratts co-signed this opinion, it was NP Bizzari that appears to have provided direct treatment to plaintiff, and it is not clear that Dr. Pratts had any significant direct contact with him.
The administrative transcript is found at Dkt. No. 8, and will be referred to throughout this decision as “AT .”
In it, they indicated that plaintiff is diagnosed as suffering from a major depressive disorder with associated symptoms of anhedonia, decreased energy, feelings of guilt or worthlessness, mood disturbance, emotional withdrawal or isolation, persistent disturbance of mood or affect, and sleep disturbance. AT 2686. They opined that, as a result of his conditions, he is “seriously limited, but not precluded” in his abilities to complete a normal workday or workweek without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, accept instructions and respond appropriately to criticism from supervisors, get along with coworkers and peers without unduly distracting them or exhibiting behavioral extremes, and interacting appropriately with the general public. AT 2687. They further opined that plaintiff is “limited but satisfactory” in his abilities to maintain regular attendance and be punctual within customary usually strict tolerances, respond appropriately to changes in a routine work setting, deal with normal work stress, be aware of normal hazards and take appropriate precautions, maintain socially appropriate behavior, and adhere to basic standards of neatness and cleanliness, as well as that plaintiff was not limited in many other areas. AT 2687. For a supporting explanation, the sources noted that plaintiff struggles with regulating himself under perceived conflict, causing difficulty at times in getting along with coworkers, accepting criticism, and interacting with the public. Id. They noted that plaintiff takes Effexor, Wellbutrin, and trazadone, but that those medications do not impact his ability to work. AT 2688. They further opined that plaintiff's psychiatric condition exacerbates his experience of pain, that he has repeated episodes of decompensation which cause him to withdraw from situations or experience exacerbations of his symptoms, that he would likely be off-task ten percent of the workday, and could be predicted to be absent about three days per month due to his impairments or treatment. Id. The sources further stated that plaintiff's condition had been at the same level for all of the relevant time period, as well as that plaintiff does not suffer from an alcohol or substance abuse problem.AT 2690.
In the form, this term is defined to mean that the patient's “ability to function in this area is seriously limited and less than satisfactory, but not precluded in all circumstances.” AT 2687.
I note that, somewhat confusingly, the sources also checked “no” in response to the next question, which asks, if the provider has checked “yes” related to the question of whether the claimant has an abuse problem, whether the current limitations would remain if use of drugs or alcohol was stopped. AT 2690. Because the sources checked “no” in response to the first question, it is not clear why they answered the second question, or if one or both of the answers to those questions was based on a mistake.
The ALJ found this opinion to be not particularly persuasive, reasoning that (1) the sources did not provide any specific explanation to support the limitations they opined and did not cite specific treatment notes to support those opined limitations, (2) their opinion that plaintiff does not have an alcohol or substance abuse problem conflicts with the treatment evidence throughout the record, which reflects issues with alcohol use, and (3) their opinion that plaintiff would be absent from work three days per month and off-task ten percent of the workday “is speculative and inconsistent with the claimant's lack of attention/concentration deficits during most examinations.” AT 32. Addressing the opinion that plaintiff would be off-task or require absenteeism, the ALJ further discussed that the relevant regulation's definition of the supportability factor involves an assessment of the “objective medical evidence and supporting explanations presented by a medical source,” and, that in this case, the treatment providers did not provide any supporting explanations and the objective medical evidence to support such limitations is lacking. AT 33.
It is not clear to me that the ALJ appropriately and fully applied the relevant factors of supportability and consistency as to this opinion. With respect to supportability, the ALJ reasonably points to the fact that the sources have not cited any specific treatment records or provided explanation on the opinion form to support their opinions related to the symptoms noted on the first page of the opinion. AT 32. However, the explanation provided by the author on the opinion form is only one part of the supportability analysis. The other, equally relevant, part derives from the treatment records of that source, whether or not the source has specifically cited to them. See 20 C.F.R. § 416.920c(c)(1) (noting that the analysis involves considering both “the objective medical evidence and supporting explanations presented by a medical source”). Although the ALJ discussed many of NP Bizzari's treatment records in her lengthy recitation of the plaintiff's treatment history earlier in her decision, it is not clear whether she specifically considered whether those records support any portion of this joint opinion. This is a particularly important omission in this case because NP Bizzari had a fairly long-term treatment relationship with plaintiff throughout the relevant period at issue, and provided the bulk of plaintiff's mental health treatment during that time period. Both the ALJ's own recitation of the evidence and my independent review of NP Bizzari's records show that they arguably contain findings that would be supportive of some of her opined limitations, including notations of periods of isolating at home and difficulty getting along with others. See e.g., AT 852, 856, 1555, 1563, 2258, 2262, 2586, 2594, 2598, 2695, 2698, 2954, 2956.
There is also evidence from both plaintiff's reports to NP Bizzari and her mental status examinations reflecting that plaintiff continued to experience mental symptoms of anxiety and depression, including at times poor frustration tolerance and poor impulse control. See e.g., AT 854, 857-58, 861, 865, 1557, 1561, 1564-65, 1809-10, 1814, 2588, 2591-92, 2596, 2599, 2602, 2700, 2704, 2707. Irrespective of whether the ALJ discussed such findings in her decision, she did not appropriately draw a logical bridge between those findings and her conclusions regarding NP Bizzari's opinion.
I acknowledge that the ALJ did state that the sources “generally finding that the claimant has some mental limitations but is not precluded from any mental tasks is generally consistent with their treatment records and the other evidence of record,” which appears to express a consideration of both the supportability and consistency factors as to those limitations. AT 32. However, the findings by NP Bizzari and Dr. Pratts to the effect that plaintiff was not entirely precluded in these areas does not negate the fact that they nonetheless opined that he is seriously limited in his ability to perform such tasks, a qualification that the ALJ seems to have ignored. Indeed, even if plaintiff was not precluded entirely in these areas, it is not clear to me that the ALJ incorporated the “seriously limited” portion for all of those limitations into the RFC. By way of example, the RFC does not contain any restrictions that would appear to account for serious limitations in the plaintiff's abilities to complete a normal workday or workweek without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, or to accept instructions and respond appropriately to criticism from supervisors, despite the ALJ seemingly finding those opined “seriously limited but not precluded” limitations to be generally consistent with the record evidence. To the extent that the ALJ rejected the “seriously limited” part of that qualification, as appears to be the case given that she found this opinion to overall be not particularly persuasive, again, she has not provided a sufficient articulation of her reasons for doing so, particularly with respect to the factors of consistency and supportability, as was previously discussed.
The ALJ's rejection of the sources' assessment that plaintiff does not have an alcohol abuse problem also does not bolster her findings regarding the functional portions of the joint opinion. Even if the ALJ was correct in rejecting the statement that plaintiff does not have an alcohol use problem based on the plaintiff's treatment records that admittedly show issues with alcohol use, the existence of alcohol abuse does not inherently mean that a plaintiff does not experience significant mental health symptoms or work-related limitations, and does not, on its own, justify the rejection of the other portions of this opinion. Indeed, whether alcohol abuse is material in a disability case is relevant only after the agency has found that a claimant is disabled. See Social Security Ruling (“SSR”) 13-2p (describing the analytical process an ALJ must following in a case where alcohol or drug abuse are present). Notably, notwithstanding the statement that plaintiff does not have an alcohol abuse issue, there is nothing in the opinion to suggest, one way or the other, whether NP Bizzari and Dr. Pratts factored plaintiff's alcohol use into their opined limitations.Accordingly, to the extent the ALJ relied on plaintiff's alcohol abuse as a basis for rejecting the functional limitations in this opinion, such action was not proper and does not support her findings.
Again, it is not clear how their checking of a box that such limitations would still be present in the absence of alcohol use can be reconciled with their statement that plaintiff does not have an alcohol use problem, or whether their checking of that second box was in error. This is an issue that the ALJ should explore further on remand if she finds that plaintiff's alcohol use is a pertinent factor in the analysis of this opinion.
As to the ALJ's rejection of the absenteeism and off-task limitations, I likewise find her analysis to be deficient. As was discussed above, the ALJ rejected those limitations because of her belief that they are speculative and inconsistent with examination findings documenting normal concentration or attention, and due to the general lack of supporting explanation or support from the objective medical evidence. However, as was the case with the ALJ's rejection of the more functional portions of this opinion, the ALJ has again failed to explain whether she appropriately considered the evidence included in NP Bizzari's treatment notes when assessing whether these limitations are supported, and has not tethered any discussion of those treatment notes to her specific finding regarding the opinion. Particularly as to the opinion regarding absenteeism, the many notations in NP Bizzari's treatment notes regarding periods of isolating at home, difficulty getting along with others, poor impulse control, low frustration tolerance, and difficulty coping with depression and anxiety arguably support some degree of absenteeism and/or off-task behavior. Yet the ALJ does not adequately address such evidence in rejecting that limitation. Although the supportability factor involves primarily an assessment of the objective medical evidence and supporting explanations, the ALJ's analysis of plaintiff's functioning cannot wholly exclude the subjective reports of the claimant made to that provider and documented in treatment records, as such reports inform the provider's treatment of the claimant, particularly in cases involving mental health and other such less obvious impairments that are less conducive to confirmation through objective means. See Stacey v. Comm'r of Soc. Sec. Admin., 799 Fed.Appx. 7, 9 (2d Cir. 2020) (finding error in ALJ's rejection of treating physician's opinion because it was “largely based on [plaintiff's] self-reported symptoms, rather than on diagnostic testing” in light of the nature of mental health impairments, which are “less susceptible to objective testing and assessment,” and the fact that, as a long-time treating source, the opinion was not based solely on subjective reports, but on the source's “firsthand observations of [plaintiff]'s behavior and affect over the course of dozens of meetings spanning several years”). Further, apart from the supportability factor, the consistency factor specifically requires an assessment of “evidence” from both medical and nonmedical sources, which inherently includes evidence beyond objective medical findings. For these reasons, I find that the ALJ's specific rationale for her finding concerning the limitation related to absenteeism and off-task time to be inadequate. Although the ALJ did find that plaintiff's statements regarding the intensity, persistence and limiting effects of his impairments and symptoms were not entirely consistent with the medical and other evidence, that finding does not insulate her from addressing whether certain reports, along with other relevant objective findings contained with NP Bizzari's treatment records and the records of other relevant sources, might supply a basis for adopting some of the limitations contained within this opinion.
Because the ALJ failed to fully and appropriately consider the relevant factors of consistency and supportability as to the opinion from Dr. Pratts and NP Bizzari, I recommend that this matter be remanded for further proceedings.
As to the arguments raised by plaintiff regarding the opinions from Dr. Miller, Dr. Legrett, and Dr. Iannolo, those findings are generally supported by sufficient explanation and substantial evidence. However, as always, on remand the ALJ should reevaluate all findings to account for any changes brought about by her new assessment of the evidence.
IV. SUMMARY AND RECOMMENDATION
After considering the record as a whole and the issues raised by the plaintiff in support of her challenge to the Commissioner's determination, I recommend a finding that the determination did not result from the application of proper legal principles and is not supported by substantial evidence. Accordingly, it is hereby respectfully
RECOMMENDED that plaintiff's motion for judgment on the pleadings (Dkt. No. 10) be GRANTED, defendant's motion for judgment on the pleadings (Dkt. No. 11) be DENIED, the Commissioner's decision be VACATED, and this matter be remanded for further proceedings consistent with this decision and order, without a directed finding of disability, pursuant to sentence four of 42 U.S.C. § 405(g).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.