UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________

PAMELA B.,

Plaintiff,

v. 3:24-CV-0039 (ML) COMMISSIONER OF SOCIAL SECURITY,

Defendant. ________________________________________

APPEARANCES: OF COUNSEL:

LACHMAN, GORTON LAW FIRM PETER A. GORTON, ESQ. Counsel for the Plaintiff P.O. Box 89 1500 East Main Street Endicott, New York 13760-0089

SOCIAL SECURITY ADMINISTRATION KRISTINA D. COHN, ESQ. Counsel for the Defendant Special Assistant U.S. Attorney 6401 Security Boulevard Baltimore, Maryland 21235

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER Currently pending before the Court in this action, in which Plaintiff seeks judicial review of an adverse administrative determination by the Commissioner of Social Security, pursuant to

(g), are cross-motions for judgment on the pleadings.1 Oral argument was

1 This matter, which is before me on consent of the parties pursuant to

(c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order once issue has been joined, an action such as this is considered procedurally, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. heard in connection with those motions on February 28, 2025, during a telephone conference conducted on the record. At the close of argument, I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Commissioner’s determination was not supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by Plaintiff in this appeal. After due deliberation, and based upon the Court’s oral bench decision, which has been transcribed, is attached to this order, and is incorporated herein by reference, it is ORDERED as follows: 1) Plaintiff's motion for judgment on the pleadings (Dkt. No. 10) is GRANTED. 2) Defendant’s motion for judgment on the pleadings (Dkt. No. 12) is DENIED. 3) The Commissioner’s decision denying Plaintiff Social Security benefits is REVERSED. 4) This matter is REMANDED to the Commissioner, without a directed finding of disability, for further administrative proceedings consistent with this opinion and the oral bench decision, pursuant to sentence four of

(g). 5) The Clerk of Court is respectfully directed to enter judgment, based upon this determination, REMANDING this matter to the Commissioner for further administrative proceedings consistent with this opinion and the oral bench decision, pursuant to sentence four of

(g) and closing this case. Dated: March 3, 2025 Binghamton, New York > Miroslav Lovric United States Magistrate Judge Northern District of New York

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x PAMELA B.,

Plaintiff,

vs. 3:24-CV-39

COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on February 28, 2025, the HONORABLE MIROSLAV LOVRIC, United States Magistrate Judge, Presiding.

A P P E A R A N C E S (By Telephone) For Plaintiff: LACHMAN, GORTON LAW FIRM Attorneys at Law P.O. Box 89 1500 Main Street Endicott, New York 13760

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of the General Counsel 6401 Security Boulevard Baltimore, Maryland 21235 BY: KRISTINA D. COHN, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 1 (All present by telephone.) 2 THE COURT: All right. Well, the court will begin 3 then by indicating that the court has reviewed the briefs 4 filed by the parties. The court has also reviewed the 5 administrative record that has been filed in the docket, and 6 the court is going to render and put forth its decision here 7 on the record. 8 So let me begin by indicating plaintiff has 9 commenced this proceeding pursuant to Title 42 U.S. Code 10 405(g) to challenge the adverse determination by the 11 Commissioner of Social Security finding that she was not 12 disabled at the relevant times and therefore ineligible for 13 the benefits that she sought. 14 By way of background, the court sets forth the 15 following: 16 Plaintiff was born in 1987. She is approximately 17 37 years old. She was approximately 34 years old on the date 18 of her application for benefits. 19 Plaintiff stands approximately 5 feet 0 inches in 20 height and weighs approximately 113 pounds. 21 Plaintiff is a high school graduate who attended 22 special education classes, and has taken some online college 23 courses. She has a very limited employment history that 24 includes several years working as a -- working in a cafe and 25 various temporary positions. 1 At the time of her administrative hearing on 2 September 1, 2023, plaintiff was homeless and "couch-surfing" 3 with various friends and relatives, but had an address where 4 she was able to receive mail. Plaintiff has two sons who 5 live with relatives. 6 Plaintiff has a history of mental health 7 impairments and substance abuse that dates back to her 8 childhood and includes psychiatric hospitalization. The 9 available record documents symptoms including auditory and 10 visual hallucinations and emotional outbursts that improve 11 with prescribed psychiatric medication, but also plaintiff's 12 failure to take that medication for extended periods. 13 Procedurally, the court notes as follows: 14 Plaintiff applied for Title XVI benefits on June 2nd, 2022, 15 alleging an onset date of April 1 of 2020. In support of her 16 application for benefits, plaintiff claimed disability based 17 on a number of physical and mental health impairments, 18 including schizoaffective disorder, bipolar disorder, 19 post-traumatic stress disorder, asthma, Sjogren's Syndrome, 20 arthritis, and tendinitis. 21 Administrative Law Judge Jeremy Eldred conducted a 22 hearing on September 1, 2023, to address plaintiff's 23 application for benefits. 24 ALJ Eldred issued an unfavorable decision on 25 September 27 of 2023. That decision became the final 1 determination of the agency on November 16 of 2023, when the 2 Appeals Council denied plaintiff's request for review. This 3 action was commenced on January 9th of 2024, and it is 4 timely. 5 In his September 27th, 2023 decision at issue in 6 this case, the ALJ utilized the familiar five-step test for 7 determining disability. 8 At step one, the ALJ concluded that plaintiff had 9 not engaged in substantial gainful activity since her 10 application date of June 2nd, 2022. 11 At step two, the ALJ concluded that plaintiff had 12 the following severe impairments: Those being scoliosis, 13 asthma, schizoaffective disorder bipolar type, personality 14 disorder, stimulant use disorder, cannabis use disorder, and 15 alcohol use disorder. 16 At step three, the ALJ concluded that plaintiff did 17 not have an impairment or combination of impairments that met 18 or medically equaled the severity of one of the listed 19 impairments. In making this determination, the ALJ expressly 20 considered Listings 1.15 which deals with disorders of the 21 skeletal spine; Listing 3.02 dealing with chronic respiratory 22 disorders; Listing 3.03 dealing with asthma; Listing 12.03 23 dealing with schizophrenic, paranoid, and other psychotic 24 disorders; Listing 12.04 dealing with depressive, bipolar, 25 and related disorders; and Listing 12.08 dealing with 1 personality and impulse control disorders. 2 Next, the ALJ determined that plaintiff has the 3 residual functional capacity, also known as RFC, to perform 4 less than the full range of light work. Specifically, the 5 ALJ found plaintiff must avoid exposure to concentrated dust, 6 odors, fumes, or gases; that plaintiff can understand, 7 remember, and carry out simple and routine instructions; that 8 plaintiff can use judgment to make simple work-related 9 decisions; that plaintiff can interact occasionally with 10 supervisors, coworkers, or the public; and can appropriately 11 adapt to ordinary change in a routine work setting. 12 At step four, the ALJ determined that plaintiff did 13 not have any past relevant work. 14 At step five, the ALJ relied on the vocational 15 testimony to find that, considering plaintiff's age, 16 education, work experience, and RFC, there were jobs existing 17 in significant numbers in the national economy that plaintiff 18 can perform. 19 Accordingly, the ALJ found plaintiff was not 20 disabled from her application date of June 2nd, 2022 through 21 the date of the ALJ's decision. 22 I next turn to plaintiff's arguments. So I first 23 begin by indicating, as you know, this court's functional 24 role in this case is limited and extremely deferential. I 25 must determine whether correct legal principles were applied 1 and whether the determination is supported by substantial 2 evidence, which is defined as such relevant evidence as a 3 reasonable mind would find sufficient to support a 4 conclusion. As the Second Circuit noted in Brault v. Social 5 Security Administration, that's found at

, a 2012 6 case, the standard is demanding, more so than clearly 7 erroneous standard. The court also noted in Brault that once 8 there's a finding of fact, that fact can be rejected only if 9 a reasonable fact finder would have to conclude otherwise. 10 Plaintiff raises two primary contentions in their 11 filings. 12 First, plaintiff argues the ALJ failed to properly 13 develop the record by not making greater effort to obtain the 14 treatment notes of Licensed Clinical Social Worker Kristie 15 Scott-Lein who was plaintiff's primary therapist at the time 16 of her application for benefits and who prepared the most 17 restrictive mental health opinion in the record. 18 Secondly, plaintiff argues that the ALJ erred in 19 evaluating the medical opinion evidence related to 20 plaintiff's mental health impairments by favoring the less 21 restrictive opinions of consultants who had little to no 22 direct observation of plaintiff. 23 This court begins its analysis by stating as 24 follows: This court finds that remand for further 25 administrative proceedings is required in this case to 1 properly develop the record regarding plaintiff's mental 2 health treatment, particularly the treatment notes and 3 related records from plaintiff's primary therapist, Kristie 4 Scott-Lein, for the following reasons: 5 Plaintiff began attending biweekly therapy sessions 6 with Ms. Scott-Lein in June of 2021, and was still under her 7 care at the time of the ALJ's decision. Ms. Scott-Lein 8 completed a mental health questionnaire dated August 24, 2023 9 with an accompanying narrative, in which she opined that 10 plaintiff has marked or extreme limitations in a number of 11 functional areas, that plaintiff is prone to verbal and 12 emotional outbursts due to post-traumatic stress disorder, 13 and that plaintiff struggles with auditory and visual 14 hallucinations. Ms. Scott-Lein also opined that plaintiff's 15 mental health impairments would cause her to be off task more 16 than one-third of the workday and made her likely to miss 17 three or more workdays for each month. 18 The ALJ found Ms. Scott-Lein's opinion to be 19 unpersuasive, noting that he had -- I should add, noting that 20 he had "not been provided with Ms. Scott-Lein's underlying 21 treatment records" so he was "unable to determine whether her 22 comments ... are supported by her own longitudinal findings 23 and observations." The ALJ also found the restrictions in 24 Ms. Scott-Lein's opinion to be "inconsistent with the record 25 as a whole," including contemporaneous notes from plaintiff's 1 substance abuse counselors. 2 Instead, the ALJ deemed the opinions from 3 nonexamining state agency consultants Dr. L. Haus and Dr. D. 4 Brown, as well as consultative examiner Dr. Sarah Long, to be 5 persuasive. These opinions identified no more than moderate 6 limitations in any functional area, and were all consistent 7 with the ability to perform unskilled light work. 8 Given the remedial intent of the Social Security 9 statute and the nonadversarial nature of benefit proceedings, 10 an ALJ has an affirmative duty, regardless of whether the 11 claimant is represented by counsel, to develop the medical 12 record if it is incomplete. See Vincent v. Commissioner of 13 Social Security,

at page 305, and that's a 14 Second Circuit 2011 case, and therein, the Second Circuit 15 stated, "The duty of the ALJ, unlike that of a judge at 16 trial, is to investigate and develop the facts and develop 17 the arguments both for and against the granting of benefits." 18 "Moreover, [t]he ALJ's duty to develop the record is enhanced 19 when the disability in question is a psychiatric impairment." 20 See Tammy H. v. Commissioner of Social Security, that's found 21 at 5:18-CV-851, and that is a Magistrate Judge Baxter case, 22

, at *10, Northern District New York, 23 August 30th, 2019. 24 Whether the ALJ has satisfied his duty to develop 25 the record is a threshold question. See case of Matthew D. 1 v. Commissioner of Social Security, found at 5:20-CV-793, and 2 that is a Judge McAvoy case at

, at *6, 3 Northern District New York, April 16, 2021. Before 4 determining whether the Commissioner's final decision was 5 supported by substantial evidence under 42 U.S. Code 405(g), 6 "the court must be satisfied that the ALJ provided plaintiff 7 with 'a full hearing under the Secretary's regulations' and 8 also fully and completely developed the administrative 9 record." 10 This court notes that the ALJ did not wholly -- did 11 not wholly neglect his duty to develop the record. For 12 example, the ALJ issued a subpoena to plaintiff's former 13 mental health provider, Chenango County Community Mental 14 Hygiene Services, after it denied plaintiff's counsel access 15 to treatment notes. As the ALJ acknowledged in his decision, 16 plaintiff received psychotherapy services at this provider on 17 a regular basis until August 2020, almost two years prior to 18 the date of plaintiff's application for benefits. 19 In addition, plaintiff's counsel advised the ALJ at 20 the September 1, 2023 hearing that he was still awaiting 21 treatment records from Ms. Scott-Lein. In response, the ALJ 22 held the administrative record open for an additional two 23 weeks, but the record documents -- but the record documents 24 no further efforts to -- let me just, let me start that over. 25 But the record documents no further efforts to obtain the 1 therapist's treatment notes. This court finds that the ALJ's 2 failure to make such efforts is error that is requiring 3 remand. 4 Ms. Scott-Lein's opinion is the only comprehensive 5 treating source opinion in the record to address plaintiff's 6 mental health, and the ALJ's decision expressly recognized 7 the importance of her treatment notes for evaluating the 8 persuasiveness of her opinion. Moreover, the ALJ emphasized 9 the relevance of mental health evaluations subsequent to 10 plaintiff's application date when reaching his RFC 11 determination. 12 Therefore, this court cannot find that the ALJ's 13 failure to make affirmative efforts to obtain 14 Ms. Scott-Lein's treatment notes to be harmless error, 15 because it necessarily impacted the ALJ's evaluation of all 16 of the mental health opinion evidence. This finding is 17 consistent with numerous courts in the Second Circuit, who 18 have considered the issue and recognized the fundamental 19 nature of direct observation of a patient and consistency 20 with these observations as a crucial factor in evaluating the 21 value of a medical opinion. 22 The ALJ's reliance on the consulting opinions of 23 Dr. Long, Dr. Haus, and Dr. Brown do not alter that finding. 24 It is well-established that a longitudinal understanding of 25 an individual's mental impairments cannot be readily achieved 1 by a single consultative examination. The same difficulty 2 arises from reliance on nonexamining consultants. As the 3 amended regulations explain, "[a] medical source may have a 4 better understanding of your impairments if he or she 5 examines you than if the medical source only reviews evidence 6 in your folder." See C.F.R. Sections 404.1520c(c)(3)(v) and 7 416.920c(c)(3)(v). 8 Plaintiff's remaining arguments address the 9 substance of the ALJ's evaluation of the mental health 10 opinion evidence. Because the required efforts to fully 11 develop the record on remand will necessarily impact the 12 ALJ's evaluation of those opinions, this court declines to 13 address those remaining arguments. 14 So based on this, it is the decision of this court 15 accordingly that plaintiff's motion for judgment on the 16 pleadings is granted, defendant's motion for judgment on the 17 pleadings is denied, and the matter is reversed and remanded 18 to the Commissioner pursuant to sentence four of Section 42 19 U.S. Code 405(g) for further proceedings consistent with this 20 decision and order. 21 This constitutes the decision of this court. I 22 will be asking the court reporter to transcribe my decision 23 only, as I just read into the record, I will then file a 24 summary order attaching the transcript of my decision as I 25 set forth herein, and then that way the parties will have a 1 written decision and analysis of that decision that I just 2 set forth. 3 That concludes our proceedings for today. I hope 4 everybody has a good rest of the day and nice weekend, and 5 court stands adjourned. Thank you all. Take care. 6 MR. GORTON: Thank you, your Honor. 7 MS. COHN: Thank you. 8 (Court Adjourned, 1:25 p.m.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RMR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 28th day of February, 2025. 17 18 19 /S/ JODI L. HIBBARD

20 JODI L. HIBBARD, RMR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25