Opinion
20-cv-10285 (JMF) (SDA)
07-19-2022
Maria Arias Amparo, Plaintiff, v. Commissioner of Social Security, Defendant.
HONORABLE JESSE M. FURMAN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE
Plaintiff Maria Arias Amparo (“Amparo” or “Plaintiff”) brings this action pursuant to Section 205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the “Commissioner”) that partially denied her application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Compl., ECF No. 1.) Presently before the Court are the parties' cross-motions, pursuant to Federal Rule of Civil Procedure 12(c), for judgment on the pleadings. (Pl.'s Not. of Mot., ECF No. 23; Comm'r Not. of Mot., ECF No. 31.)
For the reasons set forth below, I respectfully recommend that Plaintiff's motion be GRANTED, the Commissioner's cross-motion be DENIED, and this case be remanded for further proceedings.
BACKGROUND
I. Procedural Background
Amparo filed applications for DIB and SSI on August 10, 2018, with an alleged disability onset date of December 30, 2017. (Administrative R., ECF No. 20 (“R.”), 25.) The Social Security Administration (“SSA”) denied her applications on October 16, 2018, and Amparo filed a written request for a hearing before an Administrative Law Judge (“ALJ”) on December 7, 2018. (R. 10001.) A video hearing was held on November 26, 2019 before ALJ Dina Loewy. (R. 45-69.) Amparo was represented at the hearing by an attorney and participated with the assistance of a Spanish interpreter. (R. 47.) In a decision dated February 3, 2020, ALJ Loewy found that Amparo was disabled from December 30, 2017 through January 14, 2019, but had improved such that her disability ended on January 15, 2019. (R. 22-40.) Amparo requested review of the ALJ decision from the Appeals Council. (R. 9-10.) Her request was denied on October 9, 2020, making ALJ Loewy's decision the Commissioner's final decision. (R. 1-3.) This action followed.
II. Non-Medical Evidence
Born on August 25, 1976, Amparo was 41 years old on the alleged disability onset date and 43 years old at the time of the ALJ's decision. (R. 70.) Amparo attended school in the Dominican Republic through eighth grade and is not able to communicate in English. (R. 50.) From approximately 2004 through December 2017, Amparo worked as a home health aide, and from 2016 to 2017, she did maintenance at a barber shop. (R. 254.)
III. Medical Evidence Before the ALJ
The parties do not dispute the portion of the ALJ's decision finding that Plaintiff was disabled from December 30, 2017 through January 14, 2019 based upon her physical impairments or that her physical impairments improved as of January 15, 2019. Therefore, the Court focuses on the medical evidence regarding Plaintiff's mental impairments.
A. Bronx Lebanon Hospital Center/Bronxcare
During an ambulatory care visit on October 13, 2017, Amparo had a PHQ-9 score of 19 indicating severe depression, but declined to see a social worker. (R. 410, 560-61.) During an annual examination on May 1, 2018, Dr. Amparo Ramirez, M.D. noted depression as a concern, but a basic screen was negative, and Dr. Ramirez noted on neurological/psychological examination that Amparo was alert and oriented. (R. 413-15.)
A PHQ-9 questionnaire is a nine-item patient questionnaire used to assess depression. See Smith v. Comm'r of Soc. Sec., No. 20-CV-08547 (JCM), 2022 WL 421136, at *2 n.2 (S.D.N.Y. Feb. 11, 2022). PHQ-9 scores of 5, 10, 15 and 20 represent mild, moderate, moderately severe and severe depression, respectively. See Sanabria v. Comm'r of Soc. Sec., No. 20-CV-00906 (DF), 2022 WL 976874, at *4 n.12 (S.D.N.Y. Mar. 31, 2022).
On June 12, 2018, Amparo saw Dr. Ramirez for a follow-up visit. (R. 420-23.) Amparo reported depression as a concern and completed a PHQ-9 screening with a score of 17. (R. 42021.) Dr. Ramirez diagnosed major depression, started her on Sertraline and referred her to a social worker. (R. 422.) Amparo saw Licensed Clinical Social Worker (“LCSW”) Janell Delicia Abraham for a walk-in consultation the same day. (R. 416-20.) Amparo completed another PHQ-9 screening with a score of 21. (R. 416-17.) LCSW Abraham assessed that Amparo could benefit from brief intervention and possibly medication to diminish her symptoms and referred her to follow up with a depression case manager. (R. 419.)
Sertraline (also referred to by the brand name Zoloft) is a selective serotonin reuptake inhibitor (SSRI), which works by increasing the activity of the chemical serotonin in the brain, and is used to treat depression, obsessive-compulsive disorder (OCD), panic disorder, premenstrual dysphoric disorder (PMDD), posttraumatic stress disorder (PTSD) and social anxiety disorder (SAD). See Plaza v. Comm'r of Soc. Sec., No. 19-CV-03853 (DF), 2020 WL 6135716, at *8 n.22 (S.D.N.Y. Oct. 16, 2020).
Amparo saw depression manager LCSW Sasha Classe on June 19, 2018. (R. 423-25.) Amparo reported that she had no motivation, slept excessively, felt tried often, had a poor appetite and difficulty concentrating. (R. 424.) Amparo scored 17 on a PHQ-9 screen. (R. 423-24.) In addition, she scored 17 on a GAD-7 questionnaire, indicating severe anxiety. (R. 424.) LCSW Classe provided psychoeducation about depression, medication and the importance of consistency and encouraged Amparo to continue attending appointments and taking medication. (Id.)
A GAD-7 questionnaire is a screening tool for anxiety. See Young v. Kijakazi, No. 20-CV-03604 (SDA), 2021 WL 4148733, at *3 (S.D.N.Y. Sept. 13, 2021). A GAD-7 score of 5 to 9 indicates mild anxiety; 10 to 14 indicates moderate anxiety; and over 15 indicates severe anxiety. See id. at *3 n.3.
During a follow-up appointment on July 6, 2018, Amparo's PHQ-9 score was unchanged and her GAD-7 score, though it dropped to 15, continued to indicate severe anxiety. (R. 425-26.) Amparo reported that she sometimes forgot to take her medication. (R. 426.) Amparo also reported that she had nausea and vomiting at times, but had not followed up with her primary care physician and that she had not followed up with the hospital after having bariatric surgery in 2014. (Id.) LCSW Classe noted that Amparo seemed to be malingering because she “made minimal efforts to follow treatment recommendations an[d] asked about disability.” (Id.)
On July 13, 2018, Amparo saw Dr. Ramirez for a follow-up appointment regarding her depression. (R. 427-30.) Amparo's PHQ-9 score was 16 and she reported feeling the same after starting Sertraline in June. (R. 428.) Dr. Ramirez increased Amparo's medication to 50 mg and noted that she had a follow-up appointment with LCSW Classe scheduled for August 3, 2018 and should return to the clinic in four weeks. (R. 428, 430.) Amparo missed the scheduled appointment with LCSW Classe on August 3, 2018 and it was rescheduled for August 9, 2018, but Amparo did not show up for the rescheduled appointment. (R. 432.) LCSW Classe left a voice message for Amparo, encouraging her to reschedule. (Id.)
Amparo saw Dr. Ramirez on August 31, 2018 for a follow-up visit. (R. 437-39.) Dr. Ramirez noted that Amparo felt fine and denied any depressive symptoms. (R. 437.) Dr. Ramirez assessed normal mood and affect, continued Amparo on Sertraline 50 mg and recommended she follow up with psychiatry. (R. 439.) Amparo next met with a social worker on September 10, 2018, when she saw LCSW Rivera Reyes, who was filling for LCSW Abraham. (R. 444-45, 637-39.) Amparo continued to endorse depressed mood, poor sleep and crying spells, but reported that she woke up early to take her younger daughter to her mother's home and went to work at a barbershop. (R. 445, 638.)
Amparo saw Dr. Ramirez again on December 28, 2018. (R. 523-28.) Her PHQ-9 screen score was 5. (R. 523-24.) Dr. Ramirez noted that Amparo was compliant with antidepressant medication and had not seen a psychiatrist. (R. 525.) He again referred Amparo to a social worker and noted that a warm hand off was given. (R. 525, 527.) On January 8, 2019, Amparo saw LCSW Abraham for a follow-up visit. (R. 529-31.) Amparo's PHQ-9 score was 6 and her GAD-7 score was 8, indicating mild anxiety. (R. 530.) Amparo reported feeling better and utilizing some of the tools she learned in therapy. (Id.)
B. September 20, 2018 Psychiatric Examination -- Dr. Howard Tedoff, Ph.D.
Dr. Howard Tedoff, Ph.D., conducted a psychiatric consultative examination of Amparo on September 20, 2018. (R. 357-60.) Dr. Tedoff noted that Amparo reported being depressed and anxious, which she attributed to physical pain. (R. 358.) Dr. Tedoff noted that Amparo was medicated with Sertraline and Metformin. (Id.) On mental status examination, Dr. Tedoff found that Amparo's attention and concentration were impaired, and her cognitive functioning was estimated to be in the borderline to low average range. (R. 359.) Dr. Tedoff opined that Amparo would have no problems understanding or remembering simple and many complex directions and instructions, but would have a problem carrying out those directions because of her physical complaints. (Id.) Dr. Tedoff stated that he believed Amparo capable of using reason and judgment in making work related decisions without limit and that she probably could interact appropriately with supervisors, coworkers and the public. (Id.)
Dr. Tedoff noted that Amparo seemed to have some difficulty sustaining concentration, but stated that he did “not know that it would be any more than physical constraints that would prevent her from performing a task at a consistent pace.” (Id.) Dr. Tedoff opined that Amparo was capable of regulating emotions and controlling behavior and could maintain hygiene and appropriate attire without limits unless she needed help when she experienced dizziness or significant physical pain. (R. 360.) Dr. Tedoff found that the results of the evaluation were consistent with psychiatric problems but concluded that “in themselves these do not seem to be the problems that would make it difficult for [Amparo] to engage in substantial gainful activity” and that “the issue for [Amparo] seem[ed] to be physical.” (Id.)
C. Alquimedez Mental Health Counseling
From at least May through July 2019, Amparo received mental health treatment at Alquimedez Mental Health Counseling. (R. 377-405.) During an evaluation on May 7, 2019, Licensed Mental Health Counselor (“LMHC”) Henry Montero noted that Amparo reported dealing with depression for 10 years, but had gone three years without receiving therapy and approximately six months without medication. (R. 377.) LMHC Montero noted that a social worker recommended that Amparo see a psychiatrist for a medication refill. (Id.) Amparo reported depressive symptoms of feelings of worthlessness, crying spells, anger and angry outbursts and irritability as well as suicidal ideas, but no suicidal intentions or plans. (Id.) LMHC Montero assessed symptoms of moderate severity and noted that Amparo's psychiatric history was “entirely negative.” (Id.)
On examination, LMHC Montero noted that Amparo appeared sad looking and unhappy, but was attentive, communicative, relaxed and calm. (R. 380.) LMHC Montero stated that signs of moderate depression were present, but that affect was appropriate, associations were intact and logical, there were no indication of psychotic process, cognitive functioning and fund of knowledge were intact and age appropriate, short-and long-term memory were intact, insight into problems and judgment were fair and there were so signs of anxiety or attentional difficulties. (Id.) LMHC Montero diagnosed major depressive disorder, recurrent, mild and refilled her prescription for Sertraline. (Id.)
LMHC Montero saw Amparo for psychotherapy on May 15, 2019. (R. 382.) Amparo reported being depressed and LMHC Montero noted that she had not been taking medication regularly, her self-care skills, ability to do domestic tasks and functioning at work were impaired. (Id.) On mental status examination, LMHC Montero noted that signs of moderate depression and anxiety were present. (Id.) Amparo scored 29 on a Beck Depression Inventory self-report monitoring test, indicating moderate depression. (Id.) LMHC Montero's diagnosis remained the same and he indicated that Amparo should return, as needed. (R. 383.)
On May 20, 2019, Amparo saw Dr. Yvelyne Abellard, M.D. (R. 384.) Amparo reported improving and adhering to medication. (Id.) Although Amparo continued to describe symptoms of depression, she reported less acting out behavior, improved ability to concentrate and that her excessive worrying and feelings of worthiness had lessened. (Id.) On examination, Dr. Abellard noted no gross abnormalities and no signs of depression, anxiety or attentional difficulties. (Id.)
On May 28, 2019, Amparo saw LMHC Montero for a follow-up appointment. (R. 385-86.) LMHC Montero noted that Amparo reported experiencing more crying spells and that her excessive worrying and feelings of worthless had increased. (R. 385.) Amparo spoke about family problems and feeling of anxiety. (Id.) On mental status examination, LMHC Montero noted that Amparo appeared sad and downcast and there were signs of moderate depression and anxiety. (Id.) He recorded Amparo's diagnosis as major depressive disorder, single episode, moderate. (Id.) A note from the following day, compiled by LMHC Montero, but signed by Dr. Abellard, reiterated these findings and indicated that therapy would include CBT and medication management. (R. 387-88.) Dr. Abellard also refilled Amparo's prescription for Zoloft (sertraline). (R. 387.)
On June 3, 2019, Amparo saw LMHC Montero and reported pain in her toes and foot in addition to depressive symptoms. (R. 390.) LMHC Montero added a diagnosis for idiopathic peripheral autonomic neuropathy and recommend that Amparo return for counseling twice per week. (Id.) On June 12, 2019, LMHC Montero noted that Amparo was paying less attention to self-care and reported sleeping excessively. (R. 389.) The focus of the session was on coping with depression and LMHC Montero counseled her regarding the need for compliance with all medical instructions, particularly having to do with medication. (Id.) The following week, on June 17, 2019,
Dr. Abellard saw Amparo, who reported no changes in symptoms. (R. 392.) Dr. Abellard increased Amparo's medication from 25 mg to 50 mg of Zoloft (sertraline) and noted that her compliance was good. (R. 392-93.)
On June 26, 2019, Amparo saw LMHC Montero for a follow-up appointment during which she reported feelings of depression with increased feelings of worthlessness. (R. 394.) LMHC Montero reported that Amparo no longer took her prescribed medication and that the focus of the session was ways of coping with depression. (Id.) The same day LMHC Montero completed a Medical Source Statement form for Amparo. (R. 1034-37.) LMHC Montero opined that Amparo likely was to be absent from work more than three times per month and had “extreme loss” (defined as complete loss of ability/inability to sustain performance during 8-hour workday) in her ability to sustain an ordinary routine; deal with stress or semi-skilled or skilled work; and work in coordination with or proximity to others without being unduly distracted. (R. 1035-36.) In terms of functional limitations, he opined that Amparo had marked limitations in activities of daily living and maintaining social functioning, frequent deficiencies in concentration persistence and pace and continual episodes of deterioration or decompensation. (R. 1037.)
On July 10, 2019, Amparo reported an increase in difficulty thinking and in sociability difficulties. (R. 396.) LMHC Montero noted erratic medication compliance and again focused the session on coping with depression. (Id.) On July 15, 2019, Dr. Abellard noted that Amparo reported as stable and under no apparent distress; that her symptoms had improved; and that her medication compliance was good. (R. 402.) On July 24, 2019, LMHC Montero noted that Amparo had “showed significant change” and was more positive and willing to continue to improve. (R. 398.) Amparo also reported adhering to medication. (Id.) At her next visit on July 29, 2019, Dr. Abellard noted that Amparo was stable and that her symptoms had improved with medication management and therapeutic services. (R. 404.)
IV. The Administrative Hearing
Amparo appeared with counsel for an administrative hearing before ALJ Loewy on November 26, 2019. (R. 45-69.) Amparo, with the assistance of a Spanish interpreter, testified that she sometime took her three-year-old daughter to school with her husband, but could not work due to pain in her legs and back and legs. (R. 52-53.) Amparo testified that she could walk a maximum of two or three blocks at one time; stand for 15 to 20 minutes; sit for 20 to 30 minutes; and lift or carry 10 to 15 pounds. (R. 54.) Amparo's attorney asked her about help she received around the house, and she testified that her oldest daughter, who was 22 at the time, helped with cooking, cleaning, laundry and taking care of Amparo's younger daughter. (R. 56.) She later testified that she needed help bathing and dressing. (R. 60.)
With respect to her mental impairments, Amparo testified that she felt depressed every day and, when asked to give examples of her symptoms, explained that she cried a lot, isolated herself and preferred to sleep. (R. 56-57.) Amparo also testified that she had anxiety and one to two times per month experienced symptoms such as feeling angry, irritable and overwhelmed. (R. 57.) In addition, Amparo testified that she had trouble sleeping almost every night, did not have friends or socialize and had trouble concentrating. (R. 58-59.) Amparo's attorney asked her whether she ever missed doctors' appointments or whether she ever arrived late at such appointments, but the ALJ intervened and stated that she had heard enough. (R. 60-61.) When asked if she had any more questions, Plaintiff's attorney said no. (R. 61.)
A vocational expert (“VE”), Linda Augins, also testified at the hearing. (R. 61-68.) The ALJ asked the VE about a hypothetical individual who could lift up to 20 pounds occasionally and 10 pounds frequently; stand or walk up to two hours per day; sit up to six hours per day; occasionally climb ramps or stairs, but never climb ladders, ropes, or scaffolds; occasionally balance, stop, kneel or crouch, but never crawl; and who was limited to simple routines and repetitive work and limited English communication. (R. 64.) The VE confirmed that such person could not perform Amparo's past work, but could perform unskilled, sedentary jobs such as addresser, addressing clerk (DOT 209.587-010), ticket counter (DOT 219.587-010) and table worker (DOT 739.687-182). (R. 65-66.) In response to questions from Amparo's attorney, the VE testified that one to two absences per month generally would be tolerated by an employer, but it would be work preclusive for an individual frequently to miss more than two days of work per month. (R. 66.) The VE also testified that an individual could be off task 10 to 15 percent of the workday, but more than 15 percent would be preclusive. (R. 66-67.) Plaintiff's attorney asked the VE how many people she followed who consistently were off task 15 percent who could hold a job, but the ALJ instructed the VE that she did not need to answer the question and directed Plaintiff's attorney to “move on.” (R. 67.) V. The ALJ's Decision
On February 3, 2020, the ALJ issued a partially favorable decision finding that Amparo was disabled within the meaning of the Act from December 31, 2017 through January 14, 2019. (R. 25-40.) Applying the Commissioner's five-step sequential evaluation, see infra Legal Standards Section II, the ALJ found at Step 1 that Amparo had not engaged in substantial gainful activity since the alleged onset date of December 30, 2017. (R. 29.) At Step 2, the ALJ found that Amparo had the following severe impairments: bilateral Achilles tendinitis, with left ankle Achilles repair and debridement with calcaneal exostectomy of Haglund's deformity and a history of right ankle calcaneal osteotomy and reinsertion of the Achilles tendon and morbid obesity. (Id.) Although the ALJ did not identify the medically determinable mental impairment that she considered, she analyzed the “paragraph B” criteria for evaluating mental disorders and found that Amparo's mental impairment was non-severe. (R. 29-32.)
A Haglund's deformity is a bone spur that appears on the upper back of the heel. See Polynice v. Colvin, No. 12-CV-01381 (DNH) (ATB), 2013 WL 6086650, at *19 n.34 (N.D.N.Y. Nov. 19, 2013), aff'd, 576 Fed.Appx. 28 (2d Cir. 2014).
At Step 3, the ALJ found that Amparo's ankle impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, namely Listing 1.02, because they did not result in an inability to ambulate effectively. (R. 32.) Prior to proceeding to Step 4, the ALJ found that, from December 30, 2017 through January 14, 2019, Amparo retained the RFC to perform sedentary work, as defined in 20 C.F.R. § 404.1567(a) and 416.967(a), except that she could stand or walk up to two hours per day; sit up to six hours per day; occasionally climb ramps or stairs, but never climb ropes, ladders or scaffolds; occasionally balance, stoop, kneel or crouch, but never crawl; and that she would have been absent from work three days per month. (Id.) At step four, the ALJ found that, from December 30, 2017 through January 14, 2019, Amparo would not have been able to perform her past work as a home health aide, which the VE classified at the medium exertional level. (R. 34-35.) At step five, the ALJ considered Amparo's age, education, work experience and RFC and the VE's testimony, the ALJ concluded that from December 30, 2017 through January 14, 2019, Amparo was unable to make a successful vocational adjustment to work that existed in significant numbers in the national economy and therefore Amparo was disabled during this time period. (R. 35-36.)
Then, ALJ Loewy determined that Amparo had not developed any new impairments since January 15, 2019 and that medical improvement occurred as of that date. (R. 36-37.) The ALJ concluded that, following ankle surgery in October 2018, Amparo's RFC had increased and that, beginning January 15, 2019 (the date of her orthopedic follow-up examination), Amparo had the RFC to perform sedentary work as defined in 20 CFR §§ 404.1567(a) and 416.967(a), except that she could stand or walk up to two hours per day; sit up to six hours per day; occasionally climb ramps or stairs, but never climb ladders ropes or scaffolds; and occasionally balance, stoop, kneel or crouch, but never crawl. (R. 37-39.) Unlike her prior RFC determination, the ALJ did not include any limitation based on absenteeism. The ALJ reasoned that the limitations in attention, concentration and absences indicated by Dr. Ramirez no longer were supported since Amparo reported that her ankle pain had resolved. (R. 38.)
LEGAL STANDARDS
I. Standard Of Review
A motion for judgment on the pleadings should be granted if it is clear from the pleadings that “the moving party is entitled to judgment as a matter of law.” Burns Int'l Sec. Servs., Inc. v. Int'l Union, United Plant Guard Workers of Am., Local 537, 47 F.3d 14, 16 (2d Cir. 1994) (citing Fed.R.Civ.P. 12(c)). In reviewing a decision of the Commissioner, a court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
“The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence.” Ulloa v. Colvin, No. 13-CV-04518 (ER), 2015 WL 110079, at *6 (S.D.N.Y. Jan. 7, 2015) (citing Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)). “Even if the Commissioner's decision is supported by substantial evidence, legal error alone can be enough to overturn the ALJ's decision.” Ellington v. Astrue, 641 F.Supp.2d 322, 328 (S.D.N.Y. 2009) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)). A court must set aside legally erroneous agency action unless “application of the correct legal principles to the record could lead only to the same conclusion,” rendering the errors harmless. Garcia v. Berryhill, No. 17-CV-10064 (BCM), 2018 WL 5961423, at *11 (S.D.N.Y. Nov. 14, 2018) (quoting Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)).
Absent legal error, the ALJ's disability determination may be set aside only if it is not supported by substantial evidence. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (vacating and remanding ALJ's decision). “Substantial evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). However, “[t]he substantial evidence standard is a very deferential standard of review-even more so than the clearly erroneous standard, and the Commissioner's findings of fact must be upheld unless a reasonable factfinder would have to conclude otherwise.” Banyai v. Berryhill, 767 Fed.Appx. 176, 177 (2d Cir. 2019), as amended (Apr. 30, 2019) (summary order) (emphasis in original) (citation and internal quotation marks omitted). If the findings of the Commissioner as to any fact are supported by substantial evidence, those findings are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995).
II. Determination Of Disability
A person is considered disabled for benefits purposes when she 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 12 months ....” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In determining whether an individual is disabled, the Commissioner must consider:
“(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam) (citations omitted).
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims:
(i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled.
(ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment
that meets the duration requirement . . . [continuous period of 12 months], or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled.
(iii) At the third step, we also consider the medical severity of your impairment(s).
If you have an impairment(s) that meets or equals one of our listings in appendix
1 [(the “Listings”)] . . . and meets the duration requirement, we will find that you are disabled.
(iv) At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled.
(v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled.20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (internal citations omitted).
If it is determined that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not progress to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
After the first three steps (assuming that the claimant's impairments do not meet or medically equal any of the Listings), the Commissioner is required to assess the claimant's RFC “based on all the relevant medical and other evidence in [the claimant's] case record.” 20 C.F.R. §§ 404.1520(e), 416.920(e). A claimant's RFC is “the most [the claimant] can still do despite [the claimant's] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
The claimant bears the burden of proof as to the first four steps. Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). It is only after the claimant proves that she cannot return to work that the burden shifts to the Commissioner to show, at step five, that other work exists in the national and local economies that the claimant can perform, given the claimant's RFC, age, education and past relevant work experience. Id. at 50-51.
III. Closed Period Of Disability Cases And The Medical Improvement Standard
“A ‘closed period' of disability occurs where a claimant is found by the Commissioner to be disabled for a finite period of time which began and ended prior to the date of the agency's administrative determination of disability.” Milliken v. Saul, No. 19-CV-09371 (PED), 2021 WL 1030606, at *9 (S.D.N.Y. Mar. 17, 2021) (citing Smith v. Berryhill, No. 17-CV-05639 (PAE) (SN), 2018 WL 5619977, at *12 (S.D.N.Y. Aug. 10, 2018), report and recommendation adopted, 2018 WL 4565144 (S.D.N.Y. Sept. 24, 2018)). “Where a claimant is found to be disabled, the Commissioner may find that he or she is no longer disabled from a later date where substantial evidence of ‘medical improvement' supports the conclusion that the claimant has become able to work.” Id. (citing Ritchie v. Saul, No. 19-CV-01378 (DF), 2020 WL 5819552, at *11 (S.D.N.Y. Sept. 29, 2020)). The regulations define “medical improvement” as “any decrease in the medical severity of [the claimant's] impairment(s) which was present at the time of the most recent favorable medical decision that [he or she was] disabled or continued to be disabled.” 20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i). Generally, the medical improvement standard applies to continuing disability reviews regarding a prior adjudication, but courts in the Second Circuit routinely apply the medical improvement standard to closed period cases. See Milliken, 2021 WL 1030606, at *10 (citing cases).
Where an ALJ determines that a claimant has experienced a medical improvement and, therefore, is no longer disabled from a certain date, the ALJ must apply an eight-step sequential analysis for DIB claims and a seven-step analysis for SSI claims. See 20 C.F.R. § 404.1594(f)(1)-(8), 416.994(b)(5)(i)-(vii). Similar to the five-step process outlined above, the eight-step medical improvement standard for DIB claims first asks the ALJ to determine whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1594(f)(1). The medical improvement standard for SSI claims does not include a determination of whether the claimant is engaged in substantial gainful activity. If the claimant has not engaged in substantial gainful activity, the second step (first step for SSI claims) requires the ALJ to consider whether the claimant has an impairment that meets or equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. If the claimant has such an impairment, then the claimant's disability will be found to continue. 20 C.F.R. §§ 404.1594(f)(2), 416.994(b)(5)(i). If the claimant does not suffer from such an impairment, the ALJ proceeds to the third step (second step for SSI claims), which requires the ALJ to determine whether there has been a medical improvement. 20 C.F.R. §§ 404.1594(f)(3), 416.994(b)(5)(ii).
If there has been a medical improvement, the ALJ proceeds to the fourth step (third step for SSI claims) and must determine whether the medical improvement is related to the claimant's RFC, based on the impairment that was present at the time of the most recent favorable medical determination. 20 C.F.R. §§ 404.1594(f)(4), 416.994(b)(5)(iii). If the ALJ finds that the medical improvement was related to the claimant's RFC, the ALJ skips step five (fourth step for SSI claims) and proceeds to step six (step five for SSI claims). Id. At step six (fifth step for SSI claims), the ALJ considers whether all impairments in combination significantly limit the claimant's ability to do basic work activities. 20 C.F.R. §§ 404.1594(f)(6), 416.994(b)(5)(v). If the impairments are found to be severe, then the ALJ proceeds to the seventh step (sixth step for SSI claims) and must determine whether the claimant is able to perform past relevant work. 20 C.F.R. §§ 404.1594(f)(7); 416.994(b)(5)(vi). If the claimant can perform his or her past relevant work, he or she is found to be no longer disabled. Id. If the claimant cannot perform his or her past relevant work, then the ALJ proceeds to the eighth step (seventh step of SSI claims) to determine whether the claimant can perform any other work. 20 C.F.R. §§ 404.1594(f)(8), 416.994(b)(5)(vii)If the claimant can perform other work, then the ALJ will find that the disability has ended. Id.
Step five (step four for SSI claims), which looks at whether any specified exception applies, only comes into play if the ALJ finds that there was no medical improvement, or the medical improvement was unrelated to the claimant's ability to work. See 20 C.F.R. §§ 404.1594(f)(5), 416.994(b)(5)(iv).
“Paramount to the medical improvement standard is the presumption that when the agency finds a claimant disabled, that disability will continue.” Milliken, 2021 WL 1030606, at *11. “Furthermore, unlike cases involving the five-step sequential analysis, the burden is with the agency to prove that the claimant no longer is disabled.” Id.
DISCUSSION
Amparo appeals the ALJ's determination that she only was entitled to a closed period of disability benefits between December 31, 2017 and January 14, 2019. Amparo does not contest the ALJ's decision regarding medical improvement of her physical impairments, but challenges the ALJ's findings regarding her mental impairments. (See Pl.'s Mem., ECF No. 24, at 13-22.) Amparo makes the following arguments for remand: (1) the ALJ ignored evidence in the record; (2) the ALJ failed to develop the record; (3) the ALJ erred in determining that Amparo's psychiatric condition was not severe and by failing to give it proper consideration in determining her RFC; and (4) the ALJ erred in her determination of Amparo's RFC. (See id.) Because I find that the ALJ erred by failing to consider Amparo's mental impairment in determining her RFC, I recommend that this action be remanded for further proceedings.
I. The ALJ's Consideration Of Amparo's Mental Impairments
At step two, the ALJ determined that Amparo has various severe physical impairments, but determined that her mental impairment was not severe because it caused no more than a mild limitation in any of the four broad areas of mental functioning (the “paragraph B” criteria). (R. 29-32.) Although the ALJ's step-two determination at first appears to be limited to the period from December 31, 2017 through January 14, 2019, the ALJ's analysis shows that, with respect to Amparo's mental impairments, the ALJ considered the entire period in assessing Amparo's limitations in each of the four areas of mental functioning. (See, e.g., R. 31 (discussing June 2019 opinion of LMHC Montero).) However, regardless of whether substantial evidence supports the ALJ's step two analysis, remand is required because the ALJ did not consider the non-severe mental impairments when determining Amparo's RFC. (R. 32-34, 37-38.)
The ALJ did not identify the specific mental impairment. (See R. 29-32.)
Amparo argues that the ALJ did not consider her PHQ-9 screenings from June, July and December 2018, or records from Alquimedez Mental Health Counseling regarding the continuation of her psychiatric symptoms. (Pl.'s Mem. at 14.) Although the ALJ often cites to Amparo's records without reference to a specific page number, her citations are sufficient for the Court to determine that she considered Amparo's mental health records for the entire period. (See R. 30 (citing 9F (R. 377-405) (May 2019 through July 2019 treatment records), 10F/14 (R. 419) (June 2018 treatment referencing PHQ-9 score), 10F/19 (R. 424) (June 2018 treatment note)); R. 31 (citing 10F/40 (R. 445) (September 2018 treatment note)); R. 32 (citing 10F/21 (R. 426) (June 2018 PHQ-9 assessment)).
“Even where ‘substantial evidence supports the ALJ's finding that a claimant's mental impairment was nonsevere, it would still be necessary to remand . . . for further consideration where the ALJ failed to account for the claimant's mental limitations when determining her RFC.'” Ferreras-Matos v. Comm'r of Soc. Sec., No. 20-CV-07106 (NSR) (JCM), 2021 WL 7287630, at *15 (S.D.N.Y. Nov. 15, 2021), report and recommendation adopted, 2022 WL 292921 (S.D.N.Y. Jan. 31, 2022) (citing Parker-Grose v. Astrue, 462 Fed.Appx. 16, 18 (2d Cir. 2012)) (collecting cases); Rousey v. Comm'r of Soc. Sec., 285 F.Supp.3d 723, 740 (S.D.N.Y. 2018) (“Although the ALJ's finding that plaintiff's mental impairments were not severe was supported by the record, the ALJ did err in failing to consider plaintiff's mental impairments in determining plaintiff's RFC.”); see also 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2) (“We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not ‘severe [ ]' . . . when we assess your [RFC][.]”).
Here, the ALJ discussed a mental impairment at step two and explained how she weighed the opinions of Dr. Tedoff and LMHC Montero. (R. 29-32.) However, that assessment did not relieve the ALJ of the requirement to discuss Amparo's mental health impairments in the RFC portion of her decision. See Ferreras-Matos, 2021 WL 7287630, at *16 (citing Cantos v. Comm'r of Soc. Sec., No. 19-CV-04269 (GBD) (SDA), 2020 WL 5371341, at *12 (S.D.N.Y. July 31, 2020), report and recommendation adopted, 2020 WL 5369919 (S.D.N.Y. Sept. 8, 2020)); see also Garcia v. Comm'r of Soc. Sec., No. 20-CV-07539 (PAE) (SLC), 2022 WL 970566, at *8 (S.D.N.Y. Mar. 31, 2022) (“To the extent the Commissioner suggests that a review of medical evaluations for step two purposes obviates the need to consider them later in determining the claimant's RFC, that is incorrect[.]”). The ALJ's RFC determination for the period December 31, 2017 through January 14, 2019 is limited to a discussion of her physical impairments and the impact of those impairments on Amparo's ability to perform work-related functions. (R. 32-34.) The ALJ mentioned Dr. Tedoff's opinion, but only to the extent he indicated that Amparo's physical conditions would prevent her from performing at a consistent pace. (R. 34.) The ALJ found that this opinion supported her conclusion that Amparo would be absent more than three days per month due to pain exacerbations from Amparo's severe bilateral foot and ankle pain. (Id.) As Plaintiff points out, Dr. Tedoff's opinion does not rule out the conclusion that her limitations were caused, a least in part, by her mental limitations. (See R. 359 (“I do not know that it would be any more than physical constraints that would prevent her from performing a task at a consistent pace.”).) Indeed, at step two, the ALJ recognized the equivocal nature of Dr. Tedoff's opinion and found at least mild limitations in her ability to concentrate, persist and maintain pace. (R. 31.) Nonetheless, in making her RFC determination, the ALJ failed to address whether Dr. Tedoff's opinion also supported limitations based on her mental impairment.
In her RFC determination beginning January 15, 2019, the ALJ found that Amparo's ankle pain had resolved and, therefore, limitations in Amparo's attention and concentration and her absences no longer were supported. (R. 38.) The ALJ again omitted any discussion of the impact of Amparo's mental impairment. (R. 37-38.) Notably, even though the only change in the ALJ's RFC determination for the period beginning January 15, 2019 was with regard to work absences, the ALJ did not discuss the impact, if any, of Amparo's mental impairment on her ability to sustain an ordinary schedule or regular attendance at work. See Laura Anne H. v. Saul, No. 20-CV-00397 (TWD), 2021 WL 4440345, at *11 (N.D.N.Y. Sept. 28, 2021) (“The ALJ may find that Plaintiff's mental impairments are inconsequential and, thus, reject the need to incorporate mental limitations into the RFC - but he must explain his reasoning for doing so.”).
Although an ALJ's failure to mention non-severe impairments in formulating the RFC may be considered harmless error “absent evidence that these impairments contributed to any functional limitations” Ferreras-Matos, 2021 WL 7287630, at *15 (internal quotations and citation omitted), that is not the case, where, as here, the ALJ found at least mild limitations in areas of mental functioning. See id. at *16 (“the ALJ's error was not harmless because the ALJ's own analysis in step two highlights several mental impairments that were not de minimis and did contribute to functional limitation”); see also Laura Anne H., 2021 WL 4440345, at *10 (not harmless error when ALJ failed to address mild limitations when formulating plaintiff's RFC); see also Gomez v. Saul, No. 19-CV-09278 (PMH) (JCM), 2020 WL 8620075, at *25 (S.D.N.Y. Dec. 23, 2020) (“[E]ven if an ALJ finds that a claimant's non-severe impairments result in only ‘mild' restrictions, the ALJ must analyze those restrictions in determining the claimant's RFC.”), report-and recommendation adopted, 2021 WL 706744 (S.D.N.Y. Feb. 22, 2021). Accordingly, I recommend that this action be remanded for further consideration of Plaintiff's RFC.
II. Development Of The Record
Plaintiff also argues that the ALJ erred in her duty to develop the record because the ALJ limited her counsel's inquiry into, inter alia, her ability to be on time for medical appointments and the basis for the VE's conclusion that an employee who was off task 10 to 15 percent of the time would be acceptable to employers, and failed to order an additional consultative examination to determine whether the limitations found by Dr. Tedoff continued after the closed period ended. (Pl.'s Mem. at 16-19; Reply Mem., ECF No. 33, at 1-3.) The Court need not reach the issue of whether the ALJ erred by limiting the testimony of Plaintiff or the VE since this testimony and the ALJ's consideration of it may change on remand. On remand, the ALJ should consider whether Dr. Tedoff's opinion creates an ambiguity that requires further development of the record. See Nieves v. Comm'r of Soc. Sec., No. 20-CV-08873 (SLC), 2022 WL 951107, at *6 (S.D.N.Y. Mar. 30, 2022) (“When there are inconsistencies, gaps, or ambiguities in the record, the regulations give the ALJ options to collect evidence to resolve these issues, including re- contacting the treating physician, requesting additional records, arranging for a consultative examination, or seeking information from others.”).
CONCLUSION
For the reasons set forth above, I respectfully recommend that Plaintiff's motion be GRANTED, the Commissioner's cross-motion be DENIED, and this case be remanded for further proceedings.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Furman.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).