Duffy v. Comm'r of Soc. Sec.

Full title: DAVON M. DUFFY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Aug 24, 2018

17-cv-3560 (GHW) (RWL) (S.D.N.Y. Aug. 24, 2018)

Opinion

17-cv-3560 (GHW) (RWL)

08-24-2018

DAVON M. DUFFY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

ROBERT W. LEHRBURGER, United States Magistrate Judge.

REPORT AND RECOMMENDATION ROBERT W. LEHRBURGER, United States Magistrate Judge. TO THE HONORABLE GREGORY H. WOODS, United States District Judge:

Davon Duffy brings this action pursuant to section 1631(c)(3) of the Social Security Act (the "Act"), 42 U.S.C. § 1383(c)(3), seeking review of a determination of the Commissioner of Social Security ("Commissioner") finding that he is not entitled to Supplemental Security Income ("SSI"). The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Duffy has also moved for judgment on the pleadings. For the reasons set forth below, I recommend that Duffy's motion for judgment on the pleadings be granted and the Commissioner's motion be denied.

Background

A. Procedural History

On April 26, 2016, Duffy filed an application for SSI alleging disability as of August 1, 2014, due to bipolar disorder, attention deficit hyperactivity disorder ("ADHD"), asthma, and high blood pressure. (R. at 56-57.) After his claim was denied on initial review (R. at 67), he requested a hearing before an Administrative Law Judge ("ALJ") (R. at 79). The hearing was held on November 1, 2016, before ALJ Mark Solomon. (R. at 32.) Duffy was accompanied to the hearing by a non-attorney representative, Wendy Garcia. (R. at 32-33.) On November 10, 2016, ALJ Solomon found that Duffy was not disabled. (R. at 14.) The Appeals Council denied review on March 13, 2017. (R. at 1.) Duffy appealed to this Court on May 11, 2017. B. Personal History

Duffy was born in April 1989 and was 25 on his alleged disability onset date. (R. at 55.) He completed high school through an Individualized Education Plan ("IEP"). (R. at 39.) Duffy has a long history of mental health issues that began when he was seven years old and accordingly, as a child, he received social security benefits. (R. at 36, 208, 219.) Duffy also has a history of having been a victim of physical and sexual abuse and neglect. (R. at 223.) He was initially diagnosed with ADHD and hyperactivity. (R. at 219.) He was later diagnosed with bipolar disorder, along with impulse-control disorder and personality disorders. (R. at 206, 219.) During the relevant time period, Duffy was prescribed at least Zoloft, trazodone and Benadryl for symptoms of insomnia, and Seroquel for irritability, manic symptoms, and mood stabilization. (See, e.g., R. at 12, 243.) C. Medical History

1. Treatment at Mount Sinai Beth Israel

From February 10, 2014 through June 2014, Duffy received mental health treatment at Mount Sinai Beth Israel Hospital ("Mt. Sinai") from Dr. Michael Colin. (R. at 235-63.) Dr. Colin diagnosed Duffy with bipolar I disorder, antisocial personality disorder, and asthma. (R. at 243.) In the intake form, Duffy reported that he worked at Barnes and Nobles for a two-week trial period, but he was not offered full time employment. (R. at 235.) According to Dr. Colin's February 10, 2014 note, Duffy was taking 400 milligrams of Seroquel, 100 milligrams of trazadone, and Benadryl. (R. at 235.) Duffy reported that he previously took Lithium, Depakote, and Risperdal. (R. at 235.) He also reported that he had prior hospitalizations for violence, but he had not had any episodes of violence in two years. (R. at 235.) On March 10, 2014, Duffy reported that he was in a good mood, that he was trying to find work and that medication was helpful with his sleeping, although he noted conflicts with his mother over his independence. (R. at 239.) He was assessed as being at risk for suicide, but not for homicide, violence, or abusiveness. (R. at 239.) Dr. Colin's assessments were otherwise unchanged. (R. at 239.)

On April 7, 2014, Duffy reported that he was sleeping well, exercising regularly, and spending time with friends, but nonetheless felt "sad" about his social situation. (R. at 242.) He was assessed as being at risk for suicide, but not for homicide, violence, or abusiveness. (R. at 242.) Duffy was taking fifty milligrams of trazadone, fifty milligrams of Benadryl, and four hundred milligrams of Seroquel. (R. at 243.) Dr. Colin's treatment plan focused on decreasing Duffy's symptoms of depression, decreasing anger, and improving sociality, sleep, concentration, and mood. (R. at 244-46.)

Duffy also participated in a therapy group program through Mt. Sinai. (R. at 248-57.) On April 28, 2014, he arrived late to group and was visibly angry. (R. at 254.) He reported that people tease him, stare at him, and follow him. (R. at 254.) He stated that he was angry and "wanted to stab someone with a knife." (R. at 254.) Security was called, and he was referred to the Comprehensive Psychiatric Emergency Program ("CPEP"). (R. at 254.) Duffy's CPEP evaluation indicated that he was calm, that he was not psychotic, manic, depressed, or intoxicated, and that hospitalization would be of "little benefit." (R. at 269.) Duffy stated that his homicidal ideation was the result of stress over conflicts with friends and family. (R. at 266.) He denied having any desire to hurt anybody and stated that he just needed to vent. (R. at 266.) It was determined that given Duffy's general tardiness and history of violence, he was not an appropriate fit for that group therapy program at that time. (R. at 257.) After that incident, he began attending group therapy through a different mental health organization, called Community Access, and on June 3, 2014, Duffy asked to terminate his treatment at Mt. Sinai. (R. at 259.) Dr. Colin noted that Duffy was "in remission" upon discharge. (R. at 261.) Dr. Colin also noted that Duffy had little change in medication management through the treatment, and that Duffy continued to show irritability, annoyance, and dysphoria with insomnia, but that there was no homicidal ideation or self-injurious behavior. (R. at 261.) Dr. Colin also reported that Duffy was compliant with treatment and always punctual, and that he was discharged in stable condition to Community Access. (R. at 261.)

2. Henry Street Settlement

From April 10, 2015 through at least June 2016, Duffy participated in Henry Street Settlement's Personalized Recovery Oriented Services ("PROS") program. (R. at 13.) He had diagnoses for impulse-control disorder, disruptive mood dysregulation disorder, and antisocial personality traits. (R. at 13.)

A psychiatrist at Henry Street conducted a psychiatric evaluation of Duffy on March 6, 2015. (R. at 201-03.) The evaluation indicated that Duffy was hospitalized in 2006 and 2007 for physical fights. (R. at 201.) The evaluation stated that his daily activities included showering and feeding himself, attending his program, and going to a local library. (R. at 201.) The evaluation also stated that Duffy saw his girlfriend every two weeks but that he did not have many friends. (R. at 201.) The mental status evaluation indicated Duffy's general appearance was normal, although he was not focused and that he was on his phone "texting constantly," and that while he was cooperative most of the time, he was sometimes belligerent. (R. at 202.) There was no evidence of suicidal or homicidal ideas, hallucinations, or delusions. (R. at 202.) The psychiatrist did note that Duffy gave the impression of an individual with a "short temper with great violence potential." (R. at 202.) His GAF score was 45.¹ (R. at 203.)

1 The GAF is "a scale that indicates the clinician's overall opinion of an individual's psychological, social, and occupational functioning," and ranges from 0 to 100. Petrie v. Astrue, 412 F. App'x 401, 406 (2d Cir. 2011) (citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 34, 376-77 (4th ed., text revision, 2000)). "A score of 41-50 indicates serious symptoms, [and] a score of 51-60 indicates moderate symptoms." Maldonado v. Colvin, No. 15 Civ. 4016, 2017 WL 775829, at *5 n. 8 (S.D.N.Y. Feb. 28, 2017); see also Domains of Assessment for Co-Occurring Disorders, New York State Office of Mental Health (July 31, 2008), https://www.omh.ny.gov/omhweb/resources/providers/co_occurring/adult_services/assessment.html.

A psychosocial assessment prepared on May 6, 2015, by Jean LaGalia, an employment specialist at Henry Street, indicated that Duffy had a "difficult" relationship with his mother, in which they both demonstrated abusive behavior, such as screaming obscenities. (R. at 205.) Duffy reported being hospitalized seven times, each for less than a week, one of which was for attempting to jump off a building. (R. at 205.) His daily living skills were described as follows: "Cleans, showers twice daily. Does his own laundry, he can cook a little. Has no money, so doesn't budget. Not responsible for any billing paying." (R. at 206.) Duffy's psychosocial assessment summary stated that he was "angry, moody . . . [a]ggressive, short tempered" and that he was not interested in training, although he "may be interested in work if not too strenuous." (R. at 206.) He had a small group of friends and spent most of his time on social media and computer games. (R. at 207.) His diagnoses included impulse-control disorder, bipolar disorder, asthma, and obesity. (R. at 207.) In a review dated November 11, 2015, LaGalia noted that Duffy was struggling to engage in the program or relate to other participants and that his "only expressed goal is to receive benefits." (R. at 411.) LaGalia stated that Duffy expressed "himself through sarcasm and other unacceptable behaviors." (R. at 411.)

On April 24, 2016, LaGalia reported that Duffy was actively pursuing employment and was "able to better control his sarcasm and behave appropriately for interviews." (R. at 415.) On May 11, 2016, Duffy wanted to discuss starting medication that would keep him calmer and less irritable. (R. at 407.) Employment was noted as one of Duffy's goals, although LaGalia indicated that Duffy had "difficulty finding and keeping work because 'he doesn't like being around people.'" (R. at 409.) LaGalia also stated that Duffy might need more time to find employment due to his difficulty controlling his anger. (R. at 420.)

An evaluation conducted by a psychiatrist on May 2, 2016, indicated that Duffy had stopped taking his medications for the past year. (R. at 404-06.) Duffy reported feeling stable and under control. (R. at 404.) He also reported having a good relationship with his mother. (R. at 404.) He was diagnosed with disruptive mood dysregulation disorder, antisocial personality traits, and impulse control disorder. (R. at 406.) His recommended treatment plan included individual therapy and anger management treatment. (R. at 406.)

3. St. Mark's Place Institute for Mental Health

Duffy received mental health treatment from St. Mark's Place Institute for Mental Health ("St. Mark's") for periods of time between January 2015 and April 2016. An evaluation was conducted by licensed social workers on March 19, 2015. (R. at 219-228.) Duffy reported a long history of mental illness, beginning with his childhood, and reported physical abuse and neglect. (R. at 219-23.) He reported that when he was seventeen, he tried to strangle his father. (R. at 223.) Duffy reported that he held a security position at Barnes and Nobles for four months and was a janitor at a church for one year. (R. at 220.) His daily activities included spending time with a small circle of friends, working out, video games, and visiting the library. (R. at 221.) He described himself as spending impulsively, being unaware of his own actions, angry, and very moody, with daily mood cycles, although he reported that his medications kept the "extremes of his behavior in check." (R. at 219.) The evaluator stated, "Anger is an issue and [Duffy] describes himself as 'hot tempered' . . . . If provoked has had blackout assault issues but no incident since 2012." (R. at 224.) The evaluator indicated, however, that there was no evidence of risk of violence. (R. at 224.) The evaluator stated that Duffy would benefit from therapy and medication management. (R. at 226.) Duffy was diagnosed with bipolar I disorder. (R. at 226.) His GAF was 55. (R. at 227.)

Duffy was evaluated by Dr. Mark Rybakov on April 14, 2015. (R. at 208-12.) Duffy reported that he lived with his mother, with whom he had a good relationship, that he graduated high school, and that he had worked in a bookstore for two years. (R. at 208.) The evaluation indicates that Duffy had four prior psychiatric hospitalizations, the first in 2009 for post-traumatic stress disorder ("PTSD"), irritability, and a manic episode in which he destroyed property; one in both 2010 and 2011 for physical altercations; and one in 2013 for an altercation. (R. at 208.) Duffy reported that he had been in a relationship for five months and that he had no legal issues. (R. at 208.) Duffy was on trazodone and Seroquel, and he reported feeling stable at his current dosage. (R. at 208.) Duffy did not report any overt manic or psychotic episodes, but he did report anxiety with sweating, tremor, palpitations, and some PTSD episodes. (R. at 208.) Dr. Rybakov assessed Duffy as being "stable" and slightly anxious and diagnosed him with bipolar I disorder and learning disorder. (R. at 209.) Duffy's treatment plan included adherence to medication and therapy. (R. at 210.) His GAF was recorded as 55. (R. at 210.)

A note from Dr. Rybakov dated August 21, 2015, described Duffy as being not compliant with his treatment and "very angry." (R. at 213.) The note also stated that Duffy was attending school for computer science. (R. at 213.) Duffy had no "overt psychosis" but was anxious. (R. at 213.) His proscribed medications included 100 milligrams of trazodone and 300 milligrams of Seroquel. (R. at 217.)

On September 19, 2015, a psychotherapist at St. Mark's diagnosed Duffy with bipolar I disorder, learning disorder, and an unspecified disorder of psychological development. (R. at 218.) Duffy's GAF was 55. (R. at 218.)

On October 29, 2016, just a few days before Duffy's administrative hearing, Avram Gleitsman, a licensed clinical social worker at St. Mark's Place Institute for Mental Health, submitted a letter stating that Duffy had been attending weekly psychotherapy sessions with him since September 3, 2016. (R. at 12.) He stated that Duffy attended consistently and engaged well in treatment. (R. at 12.) He represented that Duffy was evaluated by the clinic's psychiatrist on September 1, 2016, and given the following diagnoses: bipolar disorder, PTSD, antisocial personality disorder, and unspecified disorder of psychological development. (R. at 12.) Duffy was prescribed Zoloft, Seroquel, and trazodone. (R. at 12.) Gleitsman opined that in his "professional opinion," Duffy was "incapable of working due to his mental health problems." (R. at 12.) D. Function Report

Duffy submitted a function report in connection with his disability application. (R. at 155-62.) Garcia, his "neighbor" and non-attorney representative, completed the form on his behalf. (R. at 155.) The function report was not dated, but it was sent to Duffy on May 26, 2016, and received by the Social Security Administration as of June 2, 2016. (R. at 162.) Duffy's daily activities and hobbies included reading, listening to music, walking in the park, going to the library, and chatting with friends online. (R. at 155, 159.) Duffy took care of his laundry and some of his household chores. (R. at 157.) Garcia did not indicate that Duffy had any difficulties dressing, bathing, grooming himself, or feeding himself, although she stated that Duffy's mother would sometimes prepare his meals. (R. at 156-57.) Garcia represented that at times Duffy needed reminders to take his medication for his bipolar disease. (R. at 158.) She stated that when Duffy left the house he would walk or use public transportation and that he could travel alone. (R. at 158.) In addition, Duffy could take care of shopping, paying bills, and handling his money. (R. at 158-59.)

Garcia stated that Duffy did not socialize and that being around others gave him anxiety. (R. at 159, 161.) Stress and changes to his schedule also made him "very angry." (R. at 162.) When describing his social activities, Garcia stated that Duffy hated his grandmother and father, and that he liked being alone. (R. at 160.) In response to the question of whether he had ever lost a job due to problems getting along with people, Garcia responded that after being berated by an employer, Duffy tried to burn the employer's store down. (R. at 162.) The only physical limitations she noted were climbing stairs as a result of Duffy's asthma. (R. at 160.) E. Medical Opinions

1. Dr. Allen Meisel

On June 27, 2016, Dr. Allen Meisel conducted a consultative physical examination of Duffy in connection with his disability application. (R. at 422.) Dr. Meisel stated that Duffy had a long history of asthma and that Duffy was hospitalized once during the prior year. (R. at 422.) Dr. Meisel also described Duffy's history of mental illness, noting that Duffy was hospitalized several times as a teenager for psychiatric issues, and twice as an adult: once for a suicide episode in 2012 in which he attempted to set himself on fire, and once in February 2016, for a psychotic breakdown. (R. at 422.) Dr. Meisel noted that Duffy was taking Seroquel and Albuterol. (R. at 422-23.) According to Dr. Meisel, Duffy reported that his mother took care of his cooking, cleaning, laundry, and shopping, while he was able to shower and dress himself. (R. at 423.)

Dr. Meisel found that Duffy was physically normal and that he had 5/5 strength. (R. at 423-24.) Dr. Meisel diagnosed Duffy with bipolar disorder/depression and asthma and stated that because of Duffy's asthma, he should avoid exposure to smoke, dust, and other respiratory inhalants. (R. at 424.)

2. Dr. Haruyo Fujiwaki

On June 27, 2015, Dr. Haruyo Fujiwaki conducted a consultative psychiatric evaluation of Duffy in connection with his disability application. (R. at 426.) Duffy took public transportation to the evaluation and was accompanied by Garcia. (R. at 426.) Duffy reported taking twenty-five milligrams of Seroquel daily. (R. at 426.) Dr. Fujiwaki stated that Duffy had a history of psychiatric hospitalization and was currently seeing a psychiatrist twice a week at Henry Street. (R. at 426.) Duffy reported being a victim of childhood sexual, physical, and emotional abuse by his parents. (R. at 426-27.) Duffy stated that he had suicidal and homicidal tendencies, although he denied current suicidal or homicidal ideation. (R. at 426-27.) He reported that he attempted suicide the prior month by trying to jump off the roof. (R. at 427.) He also reported having anxiety, panic attacks, and auditory hallucinations. (R. at 427.) Garcia informed Dr. Fujiwaki that Duffy was polite and calm until provoked. (R. at 427.) Duffy reported that he could bathe, dress and groom himself, and cook and clean daily; that he did not take public transportation; and that he did not socialize. (R. at 428.)

Dr. Fujiwaki stated that Duffy's demeanor and responsiveness to questions was hostile and irritated. (R. at 427.) He found that Duffy had paranoid thought patterns, although there was no evidence of hallucinations during the evaluation. (R. at 428.) Dr. Fujiwaki also found that Duffy's attention and concentration, memory skills, and cognitive functioning were impaired. (R. at 428.) Dr. Fujiwaki opined that Duffy could "follow and understand simple directions and instructions and perform simple tasks independently." (R. at 428-29.) He found that Duffy was (1) mildly limited in maintaining attention and concentration; (2) moderately limited in maintaining a regular schedule; (3) moderately limited in performing complex tasks independently; (4) mildly limited in making appropriate decisions; and (5) moderately to markedly limited in relating adequately with others and appropriately dealing with stress. (R. at 429.) Dr. Fujiwaki diagnosed Duffy with unspecified bipolar and related disorder, unspecified depressive disorder, unspecified anxiety disorder, unspecified schizophrenia spectrum and other psychotic disorder, and noted a historic diagnosis of ADHD. (R. at 429.)

3. K. Lieber-Diaz

On July 20, 2016, the State agency psychological consultant, Dr. K. Lieber-Diaz rendered an opinion based on the available medical evidence but without conducting an in-person evaluation. Dr. Lieber-Diaz opined that Duffy was not significantly limited in his ability to understand and remember very short and simple instructions and was moderately limited in his ability to understand and remember detailed instructions. (R. at 64.) She further opined that Duffy's limitations in social interactions and concentration and persistence ranged from not significant to moderate. (R. at 64-65.) Dr. Lieber-Diaz opined that Duffy was capable of unskilled work in a setting that had limited contact with others. (R. at 66.) F. The Administrative Hearing

1. Duffy's Testimony

During the hearing, Duffy was represented by Garcia, a non-attorney, who had previously held a job as an investigator with Child Services. (R. at 32-35.) Duffy testified that he was not currently working or enrolled in a vocational or educational program. (R. at 39-40.)

Duffy testified that he was incarcerated for two days during the prior week for stealing a pair of boots from his mother. (R. at 40-41.) As a result, his mother had obtained a temporary order of protection against him. (R. at 41.) He testified that following this incident, and due to his mother's emotional and mental abuse of him, he was no longer living with his mother. (R. at 41.) Duffy testified that he was currently living with a friend. (R. at 42.)

In connection with his asthma, Duffy testified that he had an asthma machine and pump and that two years prior, he had to be "rushed" to the hospital for treatment of an asthma attack. (R. at 41-42.) Duffy testified that he was unable to take public transportation by himself due to his severe anxiety, although he was unable to explain why he had stated that he could travel alone in his function report. (R. at 42.) Duffy stated that he only felt comfortable traveling while with Garcia. (R. at 43.) Duffy testified that he could not handle his own finances, such as paying bills, which the ALJ noted was contrary to his function report. (R. at 44-45.) Duffy testified that he spent his free time in his room, sleeping or playing video games. (R. at 45-46.) Upon further questioning, Duffy agreed that from time to time he would also listen to music, go to the library, and walk in the park. (R. at 46.) Duffy testified that while he was physically able to take care of his personal needs, such as showering and grooming, he sometimes required motivation from others to do so. (R. at 43.) Duffy testified that he had severe anger issues, severe anxiety, and heard voices. (R. at 44.) Finally, Duffy testified that his medications kept him "very calm" and compliant. (R. at 47.) The ALJ asked Duffy whether he would be able to work in a job where he did not have to be around other people, and Duffy stated he could not because he had severe anxiety and was a slow learner. (R. at 47-48.)

Duffy submitted a statement describing his personal and medical history. (R. at 198-99.) He claimed that for a period of years, he experienced serious abuse by his "stepgrandfather," grandmother, and mother. (R. at 198.) He stated that due to his ADHD, he struggled with memory and concentration. (R. at 198.) He said that he was currently attending a therapy program three times a week. (R. at 199.) G. Vocational Expert's Testimony

The ALJ informed the vocational expert, Melissa Fass-Karlin, that Duffy was a younger individual with no past work history and that he had an IEP diploma in special education and no exertional limitations. (R. at 51.) The ALJ stated that Duffy could perform the full range of complete repetitive work, with the exception that he should avoid concentrated exposure to respiratory irritants, and he would require a low-stress job with only occasional close interpersonal contact with supervisors and coworkers and no close interpersonal contact with the general public. (R. at 51.) The ALJ also expressed a preference for jobs with "reasoning level one," but the vocational expert stated the only jobs available were "reasoning level two." (R. at 51-52.) Fass-Karlin testified that Duffy could work as a hand packager, warehouse worker, or at a hotel bar. (R. at 52.) The ALJ asked whether there were any jobs available in a hypothetical where Duffy had all the same limitations, except that he could not have any close interpersonal contact at all with supervisors, coworkers, or the general public. (R. at 52.) Fass-Karlin testified that no such jobs were available. (R. at 52.) The ALJ asked whether, assuming the claimant would be unable to maintain attention and concentration, there would be any jobs he could do. (R. at 53.) Fass-Karlin responded that no such jobs existed. (R. at 53.) H. The ALJ's Decision

ALJ Solomon issued his decision on November 10, 2016. He analyzed Duffy's claim pursuant to the five-step sequential evaluation process and concluded that Duffy was not disabled on or after the date he filed for benefits, and that he would be capable of a full range of work at all exertional levels. (R. at 21.)

At step one, the ALJ found that Duffy had never engaged in work activity. (R. at 19.) At step two, he found that Duffy had the following severe impairments: asthma, bipolar disorder, PTSD, and anti-social personality disorder. (R. at 19.) At step three, the ALJ determined that none of Duffy's impairments or combination of impairments met or medically equaled the severity of any impairment listed in 20 C.F.R. § 404, subpt. P, app. 1 (the "Listings"). (R. at 19.) Specifically, the ALJ found that Duffy's impairments did not meet or medically equal the criteria of Listings 12.04 ("Affective Disorders"), 12.06 ("Anxiety-Related Disorders"), or 12.08 ("Personality Disorders"). (R. at 19.) To meet the "paragraph B" criteria for these disorders, Duffy's mental impairments had to result in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration, that is, three such episodes within one year, or an average of once every four months, each lasting for at least two weeks.² (R. at 19-20.) More than moderate limitations qualify as marked limitations. (R. at 20.)

2 See 20 C.F.R. § 404, subpt. P, app. 1, 12.03(B), 12.04(B), 12.08(B). "Episodes of decompensation are exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence, or pace." 20 C.F.R. § 404, subpt. P, app. 1, 12.00(C)(4).

The ALJ found that Duffy had mild restrictions in activities of daily functioning, moderate restrictions in social functioning, and moderate restrictions with regard to concentration, persistence, or pace. (R. at 20.) He found that Duffy had only experienced one to two episodes of decompensation. (R. at 20.) The ALJ also considered whether Duffy's mental impairments met the criteria of "paragraph C," which required evidence of either repeated episodes of decompensation of extended duration, a residual disease process, or a history of inability to function outside of a highly supportive living environment. (R. at 20.) The ALJ determined that none of these paragraph C factors were present in the record. (R. at 20.)

At step four, the ALJ determined that Duffy had the residual functional capacity ("RFC") to perform a full range of work, but identified a number of non-exertional limitations.³ (R. at 23, 26.) First, due to his asthma, Duffy had to avoid concentrated exposure to respiratory irritants. (R. at 21.) The ALJ also determined that Duffy would require a low stress job with only occasional close interpersonal contact with supervisors and coworkers, and no close interpersonal contact with the general public. (R. at 21.) In making this determination, the ALJ gave substantial weight to the opinion of the consultative examiner, Dr. Meisel; partial weight to the psychiatric evaluation of the consultative examiner, Dr. Fujiwaki; and little weight to the opinion of Mr. Gleitsman, a licensed clinical social worker. (R. at 24-25.) At step five, the ALJ determined that there were jobs that exist in significant numbers in the national economy that Duffy could perform. (R. at 25.)

3 A "nonexertional limitation" is a limitation or restriction imposed by impairments and related symptoms, such as pain, that affect only the claimant's ability to meet the demands of jobs other than the strength demands. 20 C.F.R. § 416.969a(c).

Analytical Framework

A. Determination of Disability

A claimant is disabled under the Social Security Act and therefore entitled to SSI if he can demonstrate, through medical evidence, that he is unable 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 [twelve] months." 42 U.S.C. § 1382c(a)(3)(A); Arzu v. Colvin, No. 14 Civ. 2260, 2015 WL 1475136, at *7 (S.D.N.Y. April 1, 2015). The disability must be of "such severity that [the claimant] 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." 42 U.S.C. § 1382c(a)(3)(B).

To determine whether a claimant is entitled to disability benefits, the Commissioner employs a five-step sequential analysis. 20 C.F.R. § 416.920(a)(4). First, the claimant must demonstrate that he is not currently engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i), (b). Second, the claimant must prove that he has a severe impairment that significantly limits his physical or mental ability to perform basic work activities. 20 C.F.R. § 416.920(a)(4)(ii), (c). Third, if the impairment is listed in what are known as the Listings, see 20 C.F.R. § 404, subpt. P, app. 1, or is the substantial equivalent of a listed impairment, the claimant is automatically considered disabled. 20 C.F.R. § 416.920(a)(4)(iii), (d). Fourth, if the claimant is unable to make the requisite showing under step three, he must prove that he does not have the RFC to perform his past work. 20 C.F.R. § 416.920(a)(4)(iv), (e). Fifth, if the claimant satisfies his burden of proof on the first four steps, the burden shifts to the Commissioner to demonstrate that there is alternative substantial gainful employment in the national economy that the claimant can perform. 20 C.F.R. §§ 416.920(a)(4)(v), (g), 416.960(c); Longbardi v. Astrue, No. 07 Civ. 5952, 2009 WL 50140, at *23 (S.D.N.Y. Jan. 7, 2009) (citing Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999), and Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986)). In order to determine whether the claimant can perform other substantial gainful employment, the Commissioner must consider objective medical facts, diagnoses, or medical opinions based on the facts, subjective evidence of pain or disability, and the claimant's educational background, age, and work experience. Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999). B. Judicial Review

The Social Security Act provides that the Commissioner's findings "as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g); see 42 U.S.C. § 1383(c)(3). A court reviewing the Commissioner's decision may set aside a decision of the Commissioner only if it is based on legal error or if it is not supported by substantial evidence. Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008). Judicial review, therefore, involves two levels of inquiry. First, the court must decide whether the Commissioner applied the correct legal standard. Atwater v. Astrue, 512 F. App'x 67, 69 (2d Cir. 2013) (quoting Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)). Second, the court must decide whether the ALJ's decision was supported by substantial evidence. Id. (quoting Tejada, 167 F.3d at 773). "In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Longbardi, 2009 WL 50140, at *21 (citing Brown, 174 F.3d at 62, and Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)). Substantial evidence in this context is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hahn v. Astrue, No. 08 Civ. 4261, 2009 WL 1490775, at *6 (S.D.N.Y. May 27, 2009) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Furthermore, it is the ALJ's role, not the reviewing court's, "to resolve evidentiary conflicts and to appraise the credibility of witnesses." Cichocki v. Astrue, 534 F. App'x 71, 75 (2d Cir. 2013) (quoting Carroll v. Secretary of Health & Human Services, 705 F.2d 638, 642 (2d Cir. 1983)).

Discussion

Duffy contends that the ALJ erred in the following respects: (1) the ALJ failed to adequately develop the record; (2) the ALJ erred in finding that Duffy's impairments did not meet the requirements of the Listings; (3) the ALJ failed to accord controlling weight to the reports and opinions of Duffy's treating physicians and mental health professionals; (4) the ALJ's findings were not supported by substantial evidence; (5) the ALJ erred by failing to properly consider Duffy's non-exertional limitations; (6) the ALJ erred in his credibility findings; and (7) the ALJ erred in his hypothetical to the vocational expert and correspondingly, the vocational expert's findings were flawed. (Memorandum of Law in Support of Plaintiff's Cross-Motion for Judgment on the Pleadings and in Opposition to Defendant's Motion ("Pl. Mem.") at 1.) As set forth below, I find that the ALJ failed to adequately develop the record, erred by failing to address all of Duffy's alleged impairments, and erred in finding that Duffy's impairments did not meet the requirements of the Listings, and I therefore recommend remanding on that basis. A. The ALJ's Duty to Develop the Record

"Before determining whether the Commissioner's conclusions are supported by substantial evidence," a court "must first be satisfied that the claimant has had a full hearing under the . . . regulations and in accordance with the beneficent purposes of the [Social Security] Act." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (alterations in original) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). "Even when a claimant is represented by counsel, it is the well-established rule in [the Second] [C]ircuit 'that the social security ALJ, unlike a judge in a trial, must on behalf of all claimants . . . affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding.'" Id. (third alteration in original) (quoting Lamay v. Commissioner of Social Security, 562 F.3d 503, 508-09 (2d Cir. 2009)); see also Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) ("Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.").

Duffy argues that the ALJ did not meet his duty to develop the record because he failed to adequately develop Duffy's hearing testimony. As set forth below, the Court does not agree. Duffy further argues that the ALJ failed to obtain all the medical evidence. Duffy is correct on that point. Additionally, the Court finds that the ALJ erred by failing to request medical source opinions from Duffy's treating physicians.

1. The ALJ's Duty to Obtain Medical Source Opinions

A medical source statement is an evaluation from a treating physician or consultative examiner of "what an individual can still do despite a severe impairment, in particular about an individual's physical or mental abilities to perform work-related activities on a sustained basis." Hooper v. Colvin, 199 F. Supp. 3d 796, 812 (S.D.N.Y. 2016) (quoting SSR 96-5p, 1996 WL 374183 (July 2, 1996)). "In light of the special evidentiary weight given to the opinion of the treating physician . . . the ALJ must make every reasonable effort to obtain not merely the medical records of the treating physician but also a report that sets forth the opinion of the treating physician as to the existence, the nature, and the severity of the claimed disability." Id. (alteration in original) (quoting Molina v. Barnhart, No. 04 Civ. 3201, 2005 WL 2035959, at *6 (S.D.N.Y. Aug. 17, 2005)). "'Every reasonable effort' means that the ALJ 'will make an initial request for evidence' from the claimant's medical source and make one follow up request between 10-20 calendar days after the initial one." Assenheimer v. Commissioner of Social Security, No. 13 Civ. 8825, 2015 WL 5707164, at *15 (S.D.N.Y. Sept. 29, 2015) (quoting 20 C.F.R. § 416.912(d)(1)).

An ALJ's failure to request medical source opinions is not a per se basis for remand where "the record contains sufficient evidence from which an ALJ can assess the petitioner's residual functional capacity." Tankisi v. Commissioner of Social Security, 521 F. App'x 29, 34 (2d Cir. 2013). The need for a medical source statement from the treating physician hinges "on circumstances of the particular case, the comprehensiveness of the administrative record, and, at core, whether an ALJ could reach an informed decision based on the record." Sanchez v. Colvin, No. 13 Civ. 6303, 2015 WL 736102, at *5 (S.D.N.Y. Feb. 20, 2015) (citing Tankisi, 521 F. App'x at 33-34). "Courts have distinguished Tankisi and remanded where the medical record available to the ALJ is not 'robust' enough to obviate the need for a treating physician's opinion." Hooper, 199 F. Supp. 3d at 815 (quoting Sanchez, 2015 WL at 736102, at *7); see also Guillen v. Berryhill, 697 F. App'x 107, 108-09 (2d Cir. 2017) (remanding case where "[t]he medical records discuss[ed] [claimant's] illnesses and suggest[ed] treatment for them, but offer[ed] no insight into how her impairments affect or do not affect her ability to work, or her ability to undertake her activities of daily life").

This requirement applies even where the ALJ has access to treatment notes, test results, and other medical history. See Siegmund v. Colvin, 190 F. Supp. 3d 301, 309 (E.D.N.Y. 2016) (remanding where nothing in the administrative record showed that the ALJ made reasonable efforts to obtain reports detailing the opinion of the treating physician as to claimant's RFC); Santiago v. Commissioner of Social Security, No. 13 Civ. 3951, 2014 WL 3819304, at *17 (S.D.N.Y. Aug. 4, 2014) ("The ALJ must make reasonable efforts to obtain a report prepared by a claimant's treating physician even when the treating physician's underlying records have been produced.").

There is no evidence in the record that the ALJ requested any medical opinions from Duffy's treating physicians. The failure by the ALJ in this regard is perplexing. The Commissioner's regulations and the prevailing law in this district set forth that the Commissioner must request opinions from a claimant's treating sources. See, e.g., 20 C.F.R. § 416.913(b)(6) (effective 2013 to 2017); Hooper, 199 F. Supp. 3d at 812-14. Moreover, medical source opinions from treating physicians are particularly vital in cases of psychiatric impairment. See, e.g., Jackson v. Colvin, No. 13 Civ. 5655, 2014 WL 4695080, at *17 (S.D.N.Y. Sept. 3, 2014).

The Commissioner's duty in this regard is not obviated by the concerns set forth in Tankisi and its progeny. The record here is simply not robust enough to allow the ALJ to make a determination without a treating source opinion. At four hundred and forty five pages, the record is relatively scant, and there is nothing in the treating notes setting forth Duffy's ability to function in a work setting. See Bluman v. Berryhill, No. 15-CV-627, 2017 WL 3910435, at *2 (W.D.N.Y. Sept. 7, 2017) (noting that 748 pages is a typical size for a record in a social security case); Christy v. Commissioner of Social Security, No. 13 CV 1552, 2015 WL 6160165, at *13 (N.D.N.Y. Oct. 20, 2015) (record was fully developed where it contained over 900 pages of medical records); Knight v. Astrue, 32 F. Supp. 3d 210, 222 (N.D.N.Y. 2012) (1,152 page record did not require further development). To be sure, there are many psychiatric assessments that detail Duffy's illness and his general mental status. (See, e.g., R. at 202-233, 235-62, 292-314.) But none of those assessments set forth Duffy's ability to function in a work environment, such as how Duffy would cope with working with supervisors and co-workers, or whether Duffy could follow simple directions. The current record only details Duffy's functioning in his current environment, one in which he does not work and receives frequent treatment.

The two consultative opinions in the record also do not excuse the ALJ from his duty to obtain treating source opinions. First, only one of the consultative opinions substantively addressed Duffy's mental health issues, and the ALJ assigned that opinion only partial weight (R. at 24), and thus the ALJ had little expert testimony on which to rely. "Furthermore, because '[t]he expert opinions of a treating physician as to the existence of a disability are binding on the fact finder, it is not sufficient for the ALJ simply to secure raw data from the treating physician. What is valuable about the perspective of the treating physician - what distinguishes him from the examining physician and from the ALJ - is his opportunity to develop an informed opinion as to the [mental health] status of a patient." Jackson, 2014 WL 4695080, at *19 (alteration in original) (quoting Peed v. Sullivan, 778 F. Supp. 1241, 1246 (E.D.N.Y. 1991)). The importance of the treating physician takes on added importance in the context of mental health conditions because a "mental health patient may have good days and bad days . . . the longitudinal relationship between a mental health patient and [his] treating physician provides the physician with a rich and nuanced understanding of the patient's health that cannot be readily achieved by a single consultative examination." Bodden v. Colvin, No. 14 Civ. 8731, 2015 WL 8757129, at *9 (S.D.N.Y. Dec. 14, 2015).

In sum, treating physician opinions are required here because of Duffy's mental health conditions and because the record is not robust. The ALJ's failure to make any attempt to obtain treating source opinions was clear error requiring remand. See, e.g., Sanchez, 2015 WL 736102, at *7-9 (remanding and noting the necessity of obtaining treating physician's opinion where plaintiff suffers from long-term mental disorder because the "gravity and impact var[ies] by individual").

2. The ALJ's Duty to Develop Medical History

An ALJ must "investigate the facts and develop the arguments both for and against granting benefits." Sims v. Apfel, 530 U.S. 103, 111 (2000). "Specifically, under the applicable regulations, the ALJ is required to develop a claimant's complete medical history." Craig v. Commissioner of Social Security, 218 F. Supp. 3d 249, 261 (citing Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)). "This responsibility 'encompasses . . . the duty to obtain a claimant's medical records and reports.'" Id. (quoting Pena v. Astrue, No. 07 Civ. 11099, 2008 WL 5111317, at *8 (S.D.N.Y. Dec. 3, 2008); see 42 U.S.C. § 423(c)(5)(B) ("In making any determination the Commissioner of Social Security shall make every reasonable effort to obtain from the individual's treating physician (or other treating health care provider) all medical evidence, including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtained from any other source on a consultative basis.").

The regulations set forth that the Commissioner will "develop your complete medical history for at least the 12 months preceding the month in which you file your application unless there is a reason to believe that development of an earlier period is necessary." 20 C.F.R. § 416.912(b)(1); DeChirico v. Callahan, 134 F.3d 1177, 1184 (2d Cir. 1998) ("[Plaintiff] is correct that, by statute, the ALJ was required not only to develop [Plaintiff's] complete medical history for at least the twelve-month period prior to the filing of his application, but also to gather such information for a longer period if there was reason to believe that the information was necessary to reach a decision."). However, "where there are no obvious gaps in the administrative record, and where the ALJ already possesses a 'complete medical history,' the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim." Rosa, 168 F.3d at 79 n.5.

The Commissioner failed to properly request medical evidence here. Evidence in the records show that Duffy had been treated at East Village Access, a mental health treatment program, as well as the Jewish Board day treatment program, Beth Israel day treatment program, and Community Access. (R. at 208, 219, 259-61, 367-69.) The Commissioner explicitly acknowledged some of these medical sources (R. at 66), and they are obvious from the record.⁴ (R. at 208, 219, 259-61, 367-69.) Additionally, there are two primary care physicians noted many times throughout the record: "Dr. Michaels" as well as "Dr. Lyman" at "Ryan Nena." (R. at 219, 235, 238, 241, 244, 258, 271, 299, 322-23, 328, 331, 335-36, 341, 343, 346, 349, 352, 366.) From the record, it appears that those treating sources recently treated Duffy. There is no evidence in the record that the Commissioner attempted to seek records from those sources.

4 The ALJ was not required to obtain records from CSI and "catholic charities" because it's not clear from the record what these refer to and the Commissioner did not acknowledge them. See Jones v. Berryhill, No. 16-CV-6042, 2017 WL 2222245, at *6 (W.D.N.Y. May 22, 2017) (the ALJ is not required to catch every "passing reference[]" to a medical provider).

Courts routinely hold that an ALJ has a heightened duty to develop the record in case of psychiatric impairments due to the difficulties associated with evaluating a mental illness' impact on a claimant's ability to function adequately in a workplace. See, e.g., Estrella v. Commissioner of Social Security, No. 12 Civ. 6134, 2016 WL 5920128, at *3 (S.D.N.Y. Oct. 7, 2016); Santiago, 2014 WL 3819304, at *15. That principal squarely applies here. Duffy's mental illness is not straightforward, and the record in this case is relatively thin. As the Commissioner's regulations caution,

Particular problems are often involved in evaluating mental impairments in individuals who have long histories of repeated hospitalizations or prolonged outpatient care with supportive therapy and medication. For instance, if you have chronic organic, psychotic, and affective disorders, you may commonly have your life structured in such a way as to minimize your stress and reduce your symptoms and signs. In such a case, you may be much more impaired for work than your symptoms and signs would indicate. The results of a single examination may not adequately describe your sustained ability to function. It is, therefore, vital that we review all pertinent information relative to your condition, especially at times of increased stress.

20 C.F.R. § 404, subpt. P, app. 1, 12.00(E). "Proper application of the rule ensures that the claimant's record is comprehensive, including all relevant treating physician diagnoses and opinions, and requires the ALJ to explain clearly how these opinions relate to the final determination. In this circuit, the rule is robust." Santiago, 2014 WL 3819304, at *16 (citing Schaal v. Apfel, 134 F.3d 496, 503-05 (2d Cir. 1998)); see also Atkinson v. Barnhart, 87 F. App'x 766, 768-69 (2d Cir. 2004) (directing ALJ to develop record for at least the previous ten years where claimant had mental impairment); Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 514 (2d Cir. 2002) ("[C]ourts should exercise an extra measure of caution when adjudicating the claims of a litigant whose mental capacity is in question.").

Full development of the record was all the more important here given that the ALJ pointed to the lack of evidence as support for Duffy not being disabled. For example, when considering whether Duffy had repeated episodes of decompensation, the ALJ noted that Duffy claimed "4 to 7 or more" episodes of hospitalizations or violent episodes, but the ALJ noted that there was no supporting evidence. (R. at 20.) Had the ALJ properly sought the records identified above those episodes may well have been demonstrated. Indeed, many courts have held that the ALJ may not base a conclusion on the fact that there is no evidence in the record where it is clear the ALJ could have sought such records. See, e.g., Atkinson, 87 F. App'x at 768 (holding that an ALJ's failure to seek a medical records from one treating source was "particularly glaring" where the ALJ "based his conclusion that plaintiff did not have a serious mental impairment on" his belief that the claimant had not received treatment for such an impairment); Rodgers v. Colvin, No. 15 CV 1449, 2016 WL 4432678, at *7 (D. Conn. Aug. 17, 2016) (holding that the ALJ should have requested additional records because the records might show that the claimant had more than "very little" mental health treatment during a certain periods); Rivera v. Colvin, No. 11 Civ. 7469, 2014 WL 3732317, at *31 (S.D.N.Y. July 28, 2014) (holding that an ALJ was obligated to seek certain medical records due to his indication that the absence of such medical records impacted his ability to evaluate medical source opinions).

Finally, even though Duffy's "representative" (his "friend" and "neighbor") assured the ALJ that she had obtained "every document from all hospitals, any admissions that he's had, any letters from Social Services" (R. at 36), such a representation is no excuse for the ALJ's failure to fully develop the medical record. "Where, as here, it is apparent from the face of the record that the record lacks necessary information, the ALJ cannot be relieved of his affirmative obligation to develop the record by a statement of counsel." Hilsdorf v. Commissioner of Social Security, 724 F. Supp. 2d 330, 346 (E.D.N.Y. 2010); see also Rosa, 168 F.3d at 79 ("W]here there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history 'even when the claimant is represented by counsel . . . .'" (quoting Perez, 77 F.3d at 47).⁵ Additionally, Garcia made no mention of whether she had sought records for all appointments with doctors or from day treatment programs and the like.

5 Some courts in this district have found that when a claimant is represented by a lay person, rather than by counsel, the ALJ has a heightened duty to develop the record. See Molina v. Colvin, No. 15 Civ. 8088, 2016 WL 7388374, at *4 (S.D.N.Y. Dec. 20, 2016) ("The reason for this added duty is obvious: claimants unassisted by skilled counsel are unlikely to call to the ALJ's attention all of the information which the ALJ should consider in evaluating the claim." (quoting Charlemagne v. Schweiker, No. 81 Civ. 6420, 1984 WL 157, at *3 (S.D.N.Y. April 11, 1984)).

Given Duffy's history of mental illness and the thin record in this case, the ALJ should have performed a more thorough development of the record. This case should therefore be remanded for the ALJ to do so.

3. Duty to Develop Testimony

Duffy further argues that the ALJ failed in his duty to develop the record by sufficiently eliciting testimony regarding all of his impairments and symptoms, including their frequency and severity. (Pl. Mem. at 23.) Specifically, Duffy argues that the ALJ failed to ask about his distractibility, inability to complete tasks, and difficulties in managing stress. The Court finds that the ALJ sufficiently explored "the nature and extent of [Duffy's] subjective symptoms" and the treatment of those symptoms. Selmo v. Barnhart, No. 01 Civ. 7374, 2002 WL 31445020, at *8 (S.D.N.Y. Oct. 31, 2002) (quoting Jimenez v. Massanari, No. 00 Civ. 8957, 2001 WL 935521, at *10 (S.D.N.Y. Aug. 16, 2001)); see also Cabrera v. Astrue, No. 06 Civ. 9918, 2007 WL 2706276, at *7 (S.D.N.Y. Sept. 18, 2007) (ALJ did not satisfy duty where he asked the claimant only one question about her mental health), modified on reconsideration on other grounds, 2008 WL 144697 (S.D.N.Y. Jan. 16, 2008).

During the hearing, the ALJ heard testimony from Duffy on his background and medical impairments. (R. at 39-49.) The ALJ questioned him on his asthma treatment (R. at 41-42), anger issues, including an incident in which Duffy blacked out from rage (R. at 46-48), anxiety (R. at 48), and the effect of medication on his symptoms (R. at 47). The ALJ also gave Duffy's non-attorney representative an opportunity to ask Duffy additional questions. (R. at 48-50.) In addition to testifying, Duffy submitted a statement to the ALJ, which was included as part of the hearing record, in which Duffy described his medical history and his current therapy treatment. (R. at 198-99.) In that statement, Duffy specifically addressed his anxiety, anger, and difficulties with concentration and memory. (R. at 198.) In sum, the record indicates that the ALJ adequately satisfied his duty to develop Duffy's testimony. Having done so, however, does not compensate for the two other respects in which the ALJ failed to adequately develop the record. B. Duffy's ADHD and Hypertension

Because the Court concludes that the ALJ did not discharge his duty to develop the record and remands on that basis, the Court need not reach Duffy's other arguments. The Court will, however, discuss Duffy's remaining contentions to the extent that they present potential issues that the ALJ may wish to address on remand. See, e.g., Molina, 2016 WL 7388374, at *5.

First, the ALJ failed to asses all of Duffy's alleged impairments. At step two, the ALJ was required to assess Duffy's impairments and determine whether they qualified as severe impairments. In his disability application, Duffy alleged that he had the following impairments: asthma, bipolar disorder, ADHD, and high blood pressure. (R. at 57.) While the ALJ addressed Duffy's asthma and his mental health at step two, he failed to address Duffy's ADHD or hypertension. Duffy's historic ADHD diagnosis and hypertension are mentioned throughout the record. (R. at 204, 206, 208, 219, 422.)

"The failure to address a condition at step two will constitute harmless error, and therefore not warrant remand, if, after identifying other severe impairments, the ALJ considers the excluded conditions or symptoms in the subsequent steps and determines that they do not significantly limit the plaintiff's ability to perform basic work." Horton v. Colvin, No. 15 Civ. 6937, 2016 WL 4411418, at *7 (S.D.N.Y. Aug. 17, 2016); see also Reices-Colon v. Astrue, 523 F. App'x 796, 798 (2d Cir. 2013) (finding harmless error, in dicta, when the ALJ failed to address two of plaintiff's numerous medical conditions at step two as the ALJ specifically considered those conditions during the subsequent steps).

Here, the ALJ notes Duffy's hypertension twice, including in his discussion of the weight he assigned to Dr. Meisel's opinion. (R. at 24 ("Claimant reports that his physical complaints are asthma and hypertension. He takes no medication for hypertension, stating that this was discontinued a long time ago. His blood pressure was normal.").) Unlike his asthma, for which Dr. Meisel recommended certain non-exertional limitations, Dr. Meisel recommended no such limitations related to Duffy's blood pressure. This inclusion is sufficient to demonstrate the ALJ's consideration of the alleged impairment. The ALJ did not however, address Duffy's alleged ADHD at any step of his analysis. Therefore, on remand, the ALJ must consider each of Duffy's impairments and determine, at step two, whether each impairment is severe or non-severe based upon the medical record evidence. The ALJ is then required to complete the balance of the sequential evaluation process with due consideration to all of Duffy's limitations. C. The Listings Under Step Three

Duffy argues that the ALJ erred in finding that his impairments did not meet the requirements of the Listings for 12.04 (Affective Disorders), 12.06 (Anxiety Disorders), or 12.08 (Personality Disorders). (Pl. Mem at 14.) Specifically, Duffy argues that the ALJ erred by not finding that Duffy's impairments met the requirements of paragraph "B" for these Listings. The Court agrees insofar as the ALJ did not support all his findings with sufficient evidence.

1. Legal Standard

At step three, the claimant has the burden of establishing that his impairments met or equaled the criteria for an impairment in the Listings. 20 C.F.R. § 416.920(d). In order to demonstrate that an impairment matches a Listing, the claimant must show that his impairment meets all of the specified medical criteria. 20 C.F.R. § 416.920(d). If a claimant's impairment "manifests only some of those criteria, no matter how severely," the impairment does not qualify. Sullivan v. Zebley, 493 U.S. 521, 530 (1990). To make this showing, the claimant must present medical findings that are supported by medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. § 416.921.

In order to meet the criteria for Listings 12.04, 12.06, or 12.08, the claimant must demonstrate that his impairment satisfies the requirements of the following combinations of paragraphs: for Listing 12.04, both paragraphs A and B, or paragraph C; for Listing 12.06, both paragraphs A and B, or paragraphs A and C; for Listing 12.08, both paragraphs A and B. See 20 C.F.R. § 404, subpt. P, app. 1, 12.04, 12.06, 12.08 (effective Sept. 29, 2016 to Jan. 16, 2017).⁶ For all three Listings, Paragraph B can be satisfied if claimant's impairments result in at least two of the following: (1) marked restriction of activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of decompensation, each of extended duration, that is, three such episodes within one year, or an average of once every four months, each lasting for at least two weeks. 20 C.F.R. § 404, subpt. P, app. 1, 12.04, 12.06, 12.08. The Commissioner has defined a "marked" limitation as one in which the impairment

6 The Listings for mental disorders were substantially revised a few months after the ALJ's decision. The versions that apply here are the ones in force at the time of the ALJ's decision on November 10, 2016. See Demler v. Berryhill, No. 14-CV-424, 2017 WL 1176050, at *5 n.2 (W.D.N.Y. March 30, 2017) (citing Lowry v. Astrue, 474 F. App'x 801, 805 n.2 (2d Cir. 2012)).

interferes seriously with your ability to independently initiate, sustain, or complete activities. Your day-to-day functioning may be seriously limited when your impairment(s) limits only one activity or when the interactive and cumulative effects of your impairment(s) limit several activities. "Marked" limitation also means a limitation that is "more than moderate" but "less than extreme." It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean.

20 C.F.R. Section 416.926a(e)(2)(i). The Court reviews the ALJ's findings to determine whether the ALJ applied the correct legal standard and whether his findings are based on substantial evidence.

2. Analysis

Here, the ALJ concluded that Duffy did not satisfy the criteria of paragraph B. Addressing the criteria set forth in paragraph B of each Listing, the ALJ found as follows. With respect to the activities of daily living, the ALJ determined that Duffy had only mild restrictions, because Duffy reported that he could prepare meals, cook, do his laundry, do some household chores, use public transportation, and shop in stores. (R. at 20.) With respect to social functioning, the ALJ found that based on Duffy's testimony, Duffy had moderate difficulties because Duffy spent time chatting online with friends and described himself as not anti-social but later stated that Garcia was his only friend. (R. at 20.) With respect to maintaining concentration, persistence, and pace, the ALJ found that Duffy had moderate difficulties, relying upon Dr. Fujiwaki's findings that Duffy had only had mild limitations in attention and concentration. (R. at 20.) And with respect to decompensation, the ALJ noted that "[Duffy] has made inconsistent statements regarding the number of times he has been hospitalized for psychiatric problems or violent agitation/physical altercations, ranging from 4 to 7 or more, and there is no supporting evidence" and concluded that based on the evidence, it was "safe to assume" that Duffy had experienced one to two episodes of decompensation. (R. at 20.) The ALJ's findings with respect to the first two criteria were supported by substantial evidence; the latter two, however, were not.

The ALJ's findings with respect to Duffy's activities of daily living are supported by substantial evidence. In his function report, and to Dr. Fujiwaki and his treating team at Henry Street, Duffy indicated that he was capable of cleaning and grooming himself, doing laundry, and doing some chores and cooking. (R. at 157, 206, 428.) The ALJ's findings as to Duffy's concentration, persistence, and pace are also supported by the record. Dr. Fujiwaki found that Duffy was mildly limited in maintaining attention and concentration, but could understand simple directions and perform simple tasks. (R. at 428-29.) The treatment records and notes from Duffy's treating physicians do not indicate otherwise.

However, the ALJ's finding of moderate difficulties with respect to social functioning is not supported by substantial evidence. In support of his assessment, the ALJ only cites to inconsistencies in Duffy's description of his own social functioning. (R. at 20.) But while there are inconsistencies in Duffy's descriptions of his social life, Duffy's anger issues and struggles to interact with others are consistently on display throughout his medical records and treatment notes. For instance, on April 28, 2014, Duffy was removed from group therapy when he reported that he "wanted to stab someone with a knife." (R. at 254.) His treatment notes from Henry Street state that Duffy was "angry, moody . . . [a]ggressive, short tempered," that he gave the impression of an individual with a "short temper with great violence potential," and that obtaining employment might be difficult in light of Duffy's anger management issues (R. at 202, 206.) During his treatment with St. Mark's, Duffy stated that he had once lost a job after he "tried to burn [the] store down with [his employer] inside." (R. at 162.) Indeed, in the week prior to Duffy's hearing, Duffy was incarcerated for stealing from his mother, and she obtained an order of protection against him. (R. at 40-41.) Dr. Fujiwaki also found that Duffy was moderately to markedly limited in relating adequately to others and appropriately dealing with stress. (R. at 429.) The ALJ did not acknowledge or address Dr. Fujiwaki's findings here.

The only medical evidence supporting the ALJ's determination was Dr. Lieber-Diaz opinion that Duffy had no more than moderate limitations in social functioning. (R. at 61-66.) Dr. Lieber-Diaz's assessment, however, was only based on a review of the record, rather than on an examination. "Courts have held that 'the conclusions of a physician who merely reviews a medical file and performs no examination are entitled to little, if any, weight.'" Rodriguez v. Astrue, No. 07 Civ. 534, 2009 WL 637154, at *26 (S.D.N.Y. March 9, 2009) (quoting Filocomo v. Chater, 944 F. Supp. 165, 170 n. 4 (E.D.N.Y. 1996)). This is particularly true when dealing with mental impairments because "observation of the patient is critical to understanding the subjective nature of the patient's disease and in making a reasoned diagnosis." Id. (quoting Giles v. Astrue, No. 06-CV-702, 2008 WL 4852947, at *5 (W.D.N.Y. Nov. 6, 2008)). Rather than substituting his judgment for that of Dr. Fujiwaki, the ALJ should have set forth reasons for why he chose to find that Duffy had a moderate limitation as opposed to a marked one. See Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) ("The ALJ is not permitted to substitute his own expertise or view of the medical proof for the treating physician's opinion or for any competent medical opinion."); Smith v. Colvin, No. 15 CV 714, 2016 WL 4991610, at *6 (N.D.N.Y. Sept. 19, 2016) (remand required where the ALJ's RFC determination was not supported by an acceptable medical source opinion).

The ALJ's finding that Duffy only experienced one to two episodes of decompensation is also not supported by substantial evidence. In the initial decision, the disability examiner found that there was insufficient evidence to demonstrate repeated episodes of decompensation. (R. at 61.) Dr. Fujiwaki did not opine on this issue at all. Despite the ALJ's acknowledgement of inconsistencies in the record (R. at 20), he did not appear to make any effort to resolve these inconsistencies by further developing the record. Santiago, 2014 WL 4793448, at *13 (when assessing the paragraph B criteria, "it was the ALJ's duty to develop the record and confirm or deny" a second hospitalization); Lacava v. Astrue, No. 11 Civ. 7727, 2012 WL 6621731, at *13 (S.D.N.Y. Nov. 27, 2012) (to discharge his duty to develop the record, the ALJ should have sought to resolve ambiguities through testimony from the treating doctor), report and recommendation adopted by 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012).

On remand, the ALJ should reconsider whether in light of all the evidence from the more fully developed record, Duffy's impairments meet or equal a Listing. D. The ALJ's RFC Determination

Duffy contends that the ALJ's RFC determination was not supported by substantial evidence because he failed to consider the totality of the record. Specifically, Duffy argues that the ALJ failed to adequately consider and weigh (1) the opinions of his treating physicians and mental health professionals; and (2) Duffy's non-exertional impairments and their impact on his ability to work. (Pl. Mem. at 11-12, 15-16, 20-21.) The court finds that while the ALJ's RFC finding was otherwise supported by substantial evidence, it was flawed in that it incorporated the ALJ's faulty analysis of the paragraph B requirements in the Listings.

1. Legal Standard

RFC is defined as "what an individual can still do despite his or her limitations. . . . Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis . . . ." Pardee v. Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (first alteration in original) (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). In making a RFC determination, the ALJ must consider a claimant's physical abilities, mental abilities, and symptomology that could interfere with work activities on a regular and continuing basis. 20 C.F.R. § 416.945(a)-(e).

The ALJ must evaluate every medical opinion received. Rodriguez v. Colvin, No. 12 Civ. 3931, 2014 WL 5038410, at *17 (S.D.N.Y. Sept. 29, 2014). Treating physicians' medical opinions are given controlling weight if they are "well supported by medically acceptable techniques and is not inconsistent with substantial evidence in the record." Id. (citing 20 C.F .R. § 416.927(c)(2)); accord Gonzalez v. Apfel, 61 F. Supp. 2d 24, 29 (S.D.N.Y. 1999)). The treating physician rule generally requires deference to the medical opinion of a claimant's treating physician. Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); see Cautillo v. Berryhill, No. 17 Civ. 1356, 2018 WL 1305717, at *15 (S.D.N.Y. March 12, 2018) ("Treating physicians' opinions are generally accorded deference because treating physicians 'are likely to be the medical professionals most able to provide a detailed, longitudinal picture' of a claimant's condition and 'bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations.'" (quoting 20 C.F.R. § 404.1527(c)(2))).

The requirements of the treating physician rule only apply, however, to treating physicians' medical opinions, which are defined as statements "that reflect judgments about the nature and severity of [the claimant's] impairment(s)" including symptoms, diagnosis and prognosis, along with physical and mental limitations. 20 C.F.R. § 416.929(a)(2). If an opinion from a medical source is not entitled to controlling weight, the Commissioner will then determine what weight it should be given using the factors in 20 C.F.R. § 416.927(c).

2. Analysis

The ALJ found that while Duffy had the RFC to perform a full range of simple, repetitive, and unskilled work at all exertional levels, he (1) had to avoid concentrated exposure to respiratory irritants, and (2) required a low stress job with only occasional close interpersonal contact with supervisors and coworkers and no close interpersonal contact with the general public. (R. at 21.) In making this determination, the ALJ described the notes and evaluations from Henry Street, St. Mark's, and Mt. Sinai. (R. at 22-23.) The ALJ gave substantial weight to the consultative examination conducted by Dr. Meisel and partial weight to the consultative psychiatric evaluation conducted by Dr. Fujiwaki. (R. at 24.) The ALJ gave Dr. Fujiwaki only partial weight because her opinion was based on a one-time examination, and specific functional limitations were not stated. (R. at 24.) The ALJ also gave little weight to the letter from Mr. Gleitsman, a licensed clinical worker at St. Mark's Place, who opined that Duffy was not capable of working. (R. at 24-25.) In doing so, the ALJ noted that Gleitsman was not a doctor, that he had only been treating Duffy for a few weeks, and that this opinion was inconsistent with the record as a whole. (R. at 24-25.)

The ALJ also explicitly incorporated into the RFC the degree of limitation he found in the analysis he conducted in connection with whether Duffy met the requirements of paragraph B for the relevant Listings. (R. at 21.) On this basis alone, the Court finds that on remand the ALJ should reconsider Duffy's RFC in light of any amended determinations regarding Duffy's social functioning and prior episodes of decompensation.⁷ Nonetheless, the Court will address each of Duffy's arguments in turn.

7 Duffy also claims that the hypothetical posed to the vocational expert was flawed and consequently, that the ALJ should not have relied upon the vocational expert's findings. (Pl. Mem. at 21.) "An ALJ may rely on [a vocational expert's] answer to a hypothetical that mirrors a claimant's RFC, so long as the RFC is based on substantial evidence." Garcia v. Colvin, No. 14 Civ. 3725, 2015 WL 5786506, at *23 (S.D.N.Y. Sept. 29, 2015) (citing Mancuso v. Astrue, 361 F. App'x 176, 179 (2d Cir. 2010)). Here, the hypothetical given by the ALJ mirrored Duffy's RFC as found by the ALJ, but for the reasons explained above, this RFC determination requires re-examination on remand.

a. The Weight Accorded to Duffy's Treating Physicians

First, Duffy argues that the ALJ erred by failing to assign a specific weight to the (1) psychiatric evaluation by Dr. Colin and accompanying treatment notes from Dr. Colin and Mt. Sinai; (2) psychological evaluations and accompanying treatment notes from Henry Street; and (3) the psychiatric evaluations and treatment notes from St. Mark's Institute for Mental Health.⁸ (Pl. Mem. at 12.) He also argues that the ALJ should have accorded controlling weight to the notes and records from Dr. Colin, Mt. Sinai Hospital, and Henry Street Settlement. (Pl. Mem. at 13.)

8 Duffy also argues that the ALJ failed to mention the psychiatric evaluation and treatment notes from St. Mark's, but they are referenced, albeit not specifically by name. (R. at 23-24.) --------

These arguments all fail for the same reason. The treating physicians' rule only applies to opinions, which are defined as statements "that reflect judgments about the nature and severity of [the claimant's] impairment(s)." 20 C.F.R. § 416.929(a)(2). Treatment notes and records are not afforded the same deference and the ALJ is not required to assign them a specific weight, let alone controlling weight.

The documents from Dr. Colin, Mt. Sinai, Henry Street, and St. Mark's Institute for Mental Health contain medical records and treatment notes, but they do not contain functional analyses of Duffy. See Stytzer v. Astrue, No. 07 CV 811, 2010 WL 3907771, at *6 (N.D.N.Y. Sept. 30, 2010)("A physician's statement is not a functional analysis if it does not offer any information regarding the crucial factors necessary to determine plaintiff's residual functional capacity."). Accordingly, the ALJ was not required to specify how much weight he was granting each document or give those documents controlling weight. See Hopper v. Commissioner of Social Security, No. 06 CV 0038, 2008 WL 724228, at *9 (N.D.N.Y.2008) (holding that while the treating physician made many findings, he never provided any opinions regarding the plaintiff's ability to do work-related activities nor his limitations, thus the ALJ did not err in failing to discuss what weight should be given to the treating physician's findings). But as directed above, the ALJ is required to seek out opinions from treating sources on remand.

b. Non-Exertional Limitations

Second, Duffy argues the ALJ's RFC formulation failed to take Duffy's non-exertional limitations into account, such as (1) Duffy's concentration limitations; (2) his difficulties interacting with others; and (3) his inability to handle stress. (Pl. Mem. at 17.)

The ALJ's RFC determination addressed Duffy's testimony, along with the assessments by Dr. Fujiwaki, Dr. Meisel, Dr. Lieber-Diaz, and Duffy's treatment notes and records. The ALJ explicitly incorporated certain non-exertional limitations: Duffy's RFC restricts him to simple, repetitive unskilled work without any limitations, except that he would require a low stress job, which for Duffy would involve very limited interaction with supervisors and no interaction with the public. (R. at 21.)

Contrary to Duffy's claims, the ALJ sufficiently took into account Duffy's limitations in concentration. Dr. Fujiwaki found that Duffy was mildly limited in maintaining attention and concentration, but could understand simple directions and perform simple tasks. (R. at 428-29.) Dr. Lieber-Diaz also opined that Duffy was not significantly limited in his ability to maintain attention and concentration for extended periods and that he was only moderately limited in his ability to understand and remember detailed instructions. (R. at 64-65.) Nothing in Duffy's testimony or his treatment records indicate that his deficiencies in concentration were more serious. Mild or moderate limitations in concentration do not necessarily establish that a claimant is disabled, particularly where the ALJ limits the scope of work to unskilled, repetitive work. See Dillard v. Colvin, No. 13 Civ. 6279, 2015 WL 556448, at *16 (S.D.N.Y. Feb. 6, 2015) (ALJ's finding that plaintiff could perform unskilled work with limited interaction with the public, despite limitations in concentration, was supported by plaintiff's statement that he performed childcare and watched television shows); Bartell v. Commissioner of Social Security, No. 13-CV-843, 2014 WL 4966149, at *3 (N.D.N.Y. Sept. 30, 2014) (limiting a claimant to unskilled work can account for limitations in concentration, persistence, and pace).

As to whether the ALJ properly incorporated Duffy's stress and his ability to interact with others, the ALJ explicitly incorporated limitations on stress and interacting with others. (R. at 21.) The ALJ stated that the "record demonstrates that claimant's primary problem is interacting with others. A low contact job accommodates his limitations." (R. at 25.) The ALJ noted that for Duffy, a low stress job would be one with limited interpersonal contact. (R. at 21.) Assuming the ALJ's findings regarding Duffy's social functioning were accurate, these non-exertional limitations would be sufficient. Crumedy v. Commissioner of Social Security, No. 16-CV-1261, 2017 WL 4480184, at *4 (N.D.N.Y. Oct. 6, 2017) (moderate limitations are not necessarily "translated into a degree of restriction that would impact [claimant's] ability to work"). If however, upon remand, the ALJ finds that Duffy's ability to handle stress and interact with others is more limited than previously found, these RFC findings may need to be revisited as well. E. The ALJ's Credibility Assessments

Duffy argues that the ALJ erred in finding that Duffy's characterization of the intensity, persistence, and limiting effects of his symptoms was not entirely credible. The Court finds that the ALJ's determination as to Duffy's credibility was supported by substantial evidence.

1. Legal Standard

"[W]hen there exists conflicting evidence as to the extent of a claimant's pain, an ALJ must evaluate the claimant's credibility." Calzada v. Astrue, 753 F. Supp. 2d 250, 279 (S.D.N.Y. 2010) (citing Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999)). An ALJ is not "required to credit [plaintiff's] testimony about the severity of her pain and the functional limitations it caused." Rivers v. Astrue, 280 F. App'x 20, 22 (2d Cir. 2008). "Because subjective symptoms only lessen a claimant's RFC where the symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, the ALJ is not required to accept allegations regarding the extent of symptoms that are inconsistent with the claimant's statements or similar evidence." Leung v. Berryhill, No. 17 Civ. 2703, 2017 WL 5953169, at *19 (S.D.N.Y. Nov. 30, 2017) (internal quotation marks omitted) (collecting cases) (quoting Moulding v. Astrue, No. 08 Civ. 9824, 2009 WL 3241397, at *7 (S.D.N.Y. Oct. 8, 2009)), report and recommendation adopted by 2018 WL 557898 (S.D.N.Y. Jan. 22, 2018).

The ALJ employs a two-step analysis when evaluating a claimant's assertions of pain and other symptoms. See Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). First, the claimant's statements must be supported by objective medical evidence that shows a medical impairment "which could reasonably be expected to produce the pain or other symptoms alleged." 20 C.F.R. § 416.929(a). Second, if the claimant does suffer from such an impairment, the ALJ will then consider "the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence." 20 C.F.R. § 416.929(a). If the claimant's testimony as to pain is not fully supported by clinical evidence, the ALJ must evaluate the credibility of the claimant's testimony by considering several factors, including:

(1) the claimant's daily activities; (2) the location, duration, frequency and intensity of symptoms; (3) precipitating and aggravating factors; (4) type, dosage, effectiveness and side effects of any medications taken; (5) treatment received; (6) other

measures taken to relieve symptoms; and (7) any other factors concerning the individual's functional limitations due to pain or other symptoms.

Calzada, 753 F. Supp. 2d at 280; accord 20 C.F.R. § 416.929(c)(3)(i)-(vi)). The ALJ is not required, however, to explicitly address each of the statutory factors. See Cichocki, 534 F. App'x at 76 ("Because the ALJ thoroughly explained his credibility determination and the record evidence permits us to glean the rationale of the ALJ's decision, the ALJ's failure to discuss those factors not relevant to his credibility determination does not require remand.").

"If the ALJ rejects plaintiff's testimony after considering the objective medical evidence and any other factors deemed relevant, he must explain that decision 'with sufficient specificity to enable the [reviewing] Court to decide whether there are legitimate reasons for the ALJ's disbelief' and whether his decision is supported by substantial evidence." Calzada, 753 F. Supp. 2d at 280 (alteration in original) (quoting Fox v. Astrue, No. 05 CV 1599, 2008 WL 828078, at *12 (N.D.N.Y. March 26, 2008)). Further, "[i]t is the role of the Commissioner, not the reviewing court, 'to resolve evidentiary conflicts and to appraise the credibility of witnesses,' including with respect to the severity of a claimant's symptoms." Cichocki, 534 F. App'x at 75 (quoting Carroll, 705 F.2d at 642).

2. Analysis

The ALJ assessed Duffy's credibility according to the requisite two-step process. At the first step, the ALJ found that Duffy had impairments that could reasonably produce the alleged impairments and symptoms. (R. at 22.) At the second step, the ALJ found that Duffy's statements concerning the intensity, persistence, and limiting effects of his symptoms were not consistent with the other evidence in the record. (R. at 22.) Accordingly, the ALJ was required to engage in a credibility inquiry by evaluating the statutory factors enumerated above.

After a review of the relevant factors, the ALJ found that Duffy was "inconsistent with treatment and compliance with medications, which are shown to be beneficial when he takes them" and the "numerous inconsistencies" in Duffy's function report, treatment notes, and testimony "suggest [Duffy] is less than forthcoming about his ability to function." (R. at 25.)

The inconsistencies in the record constituted substantial evidence to support the ALJ's credibility assessment. There are numerous discrepancies in Duffy's accounting of his medical history, personal history, and his daily living habits. Duffy argues that the discrepancies in Duffy's function report should be ignored because his report was filled out on his behalf by Garcia, and because it was not dated. But as the Commissioner points out, while the report is undated, there was only a short window of time between May 26, 2016 and June 2, 2016, during which it could have been filled out. (R. at 162.) Furthermore, Duffy initialed a change to the form, indicating that he reviewed the form for accuracy. (R. at 157.) During the hearing, the ALJ also gave Duffy an opportunity to account for discrepancies between his testimony and his prior statements, including his representations in his function report, but Duffy was unable to do so. (R. at 42-45.)

Even putting the function report aside, the record is rife with inconsistencies. Duffy's own treatment team referred to him as an "unreliable historian." (R. at 268.) At times, Duffy stated that he never worked (R. at 141, 148-49, 206), while at other times he indicated that he held a job at the same business from anywhere from a few months to two years. (R. at 208, 220.) He sometimes described his relationship with his mother as abusive and difficult (R. 205), and other points, described it as very good. (R. at 219, 404.) These discrepancies support the ALJ's assessments of Duffy's credibility.

While the ALJ improperly relied upon gaps in Duffy's treatment to find fault to with Duffy's credibility, this finding does not require reversal of the ALJ's credibility determination. While in some circumstances, a claimant may be deemed less credible if they fail to seek medical treatment, courts have "found that "faulting a person with diagnosed mental illness for failing to pursue mental health treatment is a 'questionable practice.'" Schlichting v. Astrue, 11 F. Supp. 3d 190, 207 (N.D.N.Y. 2012) (quoting Day v. Astrue, No. 07 CV 0157, 2008 WL 63285, at *5 n.6 (E.D.N.Y. Jan. 3, 2008)). An ALJ may not draw an adverse inference from a claimant's failure to seek or pursue treatment without first considering "any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment." SSR 96-7p 1996 WL 174186, at *8 (July 2, 1996).

Although the ALJ here failed to consider any explanations for Duffy's noncompliance with his mental health treatment, the ALJ did not base his credibility assessment on that one factor alone. The ALJ also reviewed the many discrepancies in Duffy's reported daily activities and history. (R. at 22-25.) Accordingly, this error does not merit remand. See Snyder v. Colvin, 667 F. App'x 319, 320 (2d Cir. 2016) (ALJ's failure to assess reasons for noncompliance with mental health treatment was harmless error because other substantial evidence supported the credibility determination); Schlichting, 11 F. Supp. 3d at 206-07 (same). In sum, the ALJ's credibility findings were supported by substantial evidence.

Conclusion

For the reasons stated above, I recommend remanding this action for further proceedings. On remand, the Commissioner should further develop the record and, in light of that fully developed record, reassess whether Duffy is disabled under the Act. Pursuant to 28 U.S.C. §§ 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Gregory H. Woods, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.

Respectfully Submitted,

/s/_________

ROBERT W. LEHRBURGER

UNITED STATES MAGISTRATE JUDGE Dated: August 24, 2018

New York, New York Copies transmitted this date to all counsel of record.