Newmark v. O'Malley

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SHIRA NEWMARK, Plaintiff, v. MARTIN O'MALLEY, Acting Commissioner of Social Security, Defendant.

No. 22-cv-10280 (JW)

United States District Court, S.D. New York

March 27, 2024

OPINION & ORDER

JENNIFER E. WILLIS, UNITED STATES MAGISTRATE JUDGE

Plaintiff Shira Newmark brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Acting Commissioner of Social Security (the “Commissioner”) denying her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“the Act”). For the reasons stated below, Plaintiff's motion is GRANTED.

BACKGROUND

A. Procedural History

On February 4, 2021, Plaintiff filed an application for DIB based on disability as of December 2, 2018. See Social Security Administration (“SSA”) Administrative Record (Dkt. No. 11) (hereinafter “R__ ”) at 14. Plaintiff alleges that her disabilities are based on impairments including Lyme disease, depression anxiety, and an underactive thyroid. R. at 286. The claim was initially denied on April 30, 2021, R. at 14, and denied again upon reconsideration on August 9, 2021. Id.

On February 23, 2022, Plaintiff had a hearing before ALJ Kieran McCormack (the “ALJ”), which took place remotely due to the COVID-19 pandemic. R. at 14. In a decision dated March 14, 2022, the ALJ denied Plaintiff's claim, finding that Plaintiff was not disabled under sections 216(i) and 223(d) of the Act. R. at 26. The Appeals Council denied Plaintiff's appeal on October 26, 2022. R. at 9.

Plaintiff subsequently commenced this action seeking remand of the ALJ decision and raising three claims of error. Dkt. No. 14 (“Pl. Memo”) at 24. Plaintiff argues that (i) the ALJ's RFC analysis was not supported by substantial evidence, (ii) the ALJ failed to properly evaluate opinion evidence, and (iii) the ALJ failed to develop the record. See Pl. Memo.

B. Personal Background

Ms. Newmark was 40 years old on the alleged disability onset date (“AOD”). R. at 267. Ms. Newmark has a master's degree in special education. R. at 99. Her past relevant employment includes working as a children's tutor, preschool teacher, elementary school teacher, and special education teacher. R. at 19, 287.

C. Plaintiff's Relevant Medical History

Ms. Newmark's AOD was December 2, 2018, and she has not had substantial gainful employment since that date. R. at 10, 12. Ms. Newmark received numerous treatments during the relevant period, including with (i) Dr. Lionel Bissoon, an integrative health specialist, (ii) Dr. Bernard Raxlen, a Lyme disease specialist, (iii) Dr. Kamau Kokayi, a family medicine specialist, (iv) Dr. Gabrielle Francis, a natural medicine specialist, (v) Dr. Olivier Frankenberger, a cardiologist, (vi) Jenny Kaplan, a licensed clinical social worker (“LCSW”), and (vii) Dr. Susan Pinco, a psychologist. Pl. Memo at 5-8; R. at 291, 328, 421-425, 430-431, 450, 463-465, and 591-598. While Ms. Newmark saw various physicians, Ms. Newmark's papers note that the relevant treating sources are primarily Dr. Raxlen and Dr. Francis. Pl. Memo at 8-9.

After filing for DIB in 2021, Ms. Newmark was evaluated by consultative physicians, including: Dr. Rita Figueroa, who performed an internal medicine consultative examination and Dr. Alison Murphy, who performed a consultative psychiatric evaluation. R. at 452-456, 458-461. The agency also relied on Drs. Hennessey and Fernandez as psychiatric consultants, and Drs. Ghandi and Siddiqui for medical consultations. R. at 116-117, 136-137, 119-123, and 140-145. The relevant treatments and opinions are recounted below.

a. Dr. Raxlen - Referral and Lyme Disease Treatment

From May 2019 to June 2019, Ms. Newmark saw Dr. Bissoon for symptoms such as sinusitis, fatigue, cold intolerance, and hearing sensitivity. R. at 645-646. After multiple rounds of tests, Dr. Bissoon referred Ms. Newmark to Dr. Bernard Raxlen, a Lyme disease specialist, when her tests came back positive for Lyme disease. R. at 328.

Ms. Newmark began receiving treatment from Dr. Raxlen in June 2019. R. at 450. Treatment records indicate that she saw Dr. Raxlen on several dates from June 2019 to June 2021. R. at 421-423; 474; 483-486. Ms. Newmark's sessions with Dr. Raxlen were a mix of in-person visits, as well as some phone and video consultations due to the COVID-19 pandemic. Id.

According to Dr. Raxlen's notes, Ms. Newmark consistently complained of motion sickness, severe fatigue, headaches, and occasional shortness of breath. R. at 424-425; 485-487. After the onset of the COVID-19 pandemic in 2020, Ms. Newmark also reported to Dr. Raxlen that she experienced anxiety and depression, and felt like she “need[ed] to move.” R. at 485. By June 2021, Ms. Newmark reportedly experienced other symptoms including brain fog, photo-sensitivity, skin sensitivity, non-restorative sleep, trouble reading, intermittent light-headedness, weight gain, and chronic headaches. R. at 421; 450; 474. However, Dr. Raxlen noted that she was still able to engage in some physical activity, such as dancing and biking. R. at 474. Dr. Raxlen provided medical source statements regarding Ms. Newmark in November 2020 and June 2021. R. at 348-353; 475-479.

In November 2020, Dr. Raxlen diagnosed Ms. Newmark with Lyme disease. R. at 348. The November 2020 statement noted persistent fatigue. R. at 348. It stated that Ms. Newmark could walk 10 blocks, but she could only sit, stand, and walk for a total of two hours in an eight-hour day. R. at 351. The statement further indicated that Ms. Newmark would need unscheduled breaks of 10 to 15 minutes every two hours, and she could rarely lift up to 10 pounds. Id. Dr. Raxlen also noted that Ms. Newmark's condition interfered with her attention and concentration occasionally (up to 1/3 of a workday), R. at 350, and the condition could cause Ms. Newmark to be absent from work more than three times a month. R. at 352.

In June 2021, Dr. Raxlen identified that Ms. Newmark had both Epstein-Barr virus and Lyme disease. R. at 475. Dr. Raxlen noted that Ms. Newmark's symptoms impacted her attention and concentration frequently (up to 2/3 of the day). R. at 477. The June 2021 statement also indicated that Ms. Newmark was capable of low stress jobs on a part time basis (two hours a week for the summer). R. at 478. Finally, Dr. Raxlen concluded that Ms. Newmark was likely to be absent from work more than three times a month. R. at 479.

b. Dr. Francis - Natural Medicinal Treatment and Notes

From November 2019 to June 2021, Ms. Newmark was treated by Dr. Gabrielle Francis, a natural medicine specialist at the Herban Alchemist. R. at 590. While in the care of Dr. Francis, Ms. Newmark received chiropractic care, medical massages, cupping, acupuncture, and infrared sauna exposure to treat symptoms including muscle pain, exhaustion, headaches, brain fog, and nausea. Id. Dr. Francis's notes indicated that Ms. Newmark “would not be able to engage in any work without the flexibility to come to work late, leave early, miss time unpredictably and sit, stand and move around throughout the day.” Id.

c. Other Treating Physicians

Between July 2019 and October 2019, Ms. Newmark saw Dr. Kokayi, who noted that Plaintiff reported shortness of breath, fatigue and muscle weakness. R. at 463, 474. In April 2020, Ms. Newmark saw Dr. Frankenberger and reported chest pain. R. at 430-434. Dr. Frankenberger recommended treatment with an antiinflammatory such as Motrin. R. at 431.

After filing for DIB on February 4, 2021, Ms. Newmark was assessed by various consultative physicians.

d. Dr. Figueroa - Internal Medicine Consultative Examination

On March 31, 2021, Dr. Rita Figueroa performed an internal medicine consultative examination. R. at 458-461. Dr. Figueroa opined that Ms. Newmark would have difficulty with “activities requiring moderate to severe exertion,” and Ms. Newmark should avoid pulmonary irritants. R. at 461. Dr. Figueroa further noted that Ms. Newmark appeared to be drained, and exhibited slow thinking and slow reaction times. R. at 459. Finally, Dr. Figueroa stated that Ms. Newmark performed exercises slowly, but had a normal gait and stance, and could walk and stand without difficulty or assistive devices. R. at 459-460.

e. Drs. Gandhi and Siddiqui - Medical Consultations

On April 23, 2021, Dr. Gandhi issued a physical residual functional capacity (“RFC”) assessment of Ms. Newmark. R. at 119-123. Dr. Gandhi found that with normal breaks Ms. Newmark could stand, sit, or walk for a total of about six hours in an eight hour day. R. at 120. Dr. Gandhi also noted that Ms. Newmark could frequently lift and/or carry 10 pounds qualifying her for light work. R. at 18, 119-122. The assessment noted that Ms. Newmark should avoid exposure to fumes, odors, dust, gases, poor ventilation, and hazards. R. at 121. On July 21, 2021, Dr. Siddiqui reported an RFC evaluation of Ms. Newmark. R. at 140-145. Dr. Siddiqui's assessment mirrored Dr. Gandhi's findings that Ms. Newmark could sit/stand/walk for six hours, carry 10 pounds frequently, and should avoid exposure to environmental irritants. Id.

a. Jenny Kaplan, LCSW and Dr. Susan Pinco, MSSW - Mental Health Treatment

With respect to Plaintiff's mental health, from June 2019 to April 2020, Ms. Newmark saw Dr. Susan Pinco, at Integrative Psychotherapy LLC. R. at 291. Dr. Pinco's treatment notes are not included in the Record.

Ms Newmark saw Jenny Kaplan, LCSW, from November 2020 through February 2022. R. at 20. In February 2022, Kaplan diagnosed Ms. Newmark with adjustment disorder with anxiety. R. at 618. Ms. Newmark reported to Kaplan that chronic Lyme disease “made it difficult to work and increased her obsessive thoughts about getting sicker and weaker[,]” along with compulsions...