Opinion
20cv1360 (ER) (DF)
08-09-2021
TOMAS AVILA, Plaintiff, v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, [1] Defendant.
REPORT AND RECOMMENDATION
DEBRA FREEMAN, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE EDGARDO RAMOS, U.S.D.J:
In this Social Security action, which has been referred to this Court for a report and recommendation, plaintiff Tomas Avila (“Plaintiff”) seeks review of the final decision of defendant Commissioner of the Social Security Administration (“SSA”) (“Defendant” or the “Commissioner”), denying Plaintiff Social Security Disability (“SSDI”) benefits and Supplemental Security Income (“SSI”) benefits under the Social Security Act (the “Act”) on the grounds that, for the relevant period, Plaintiff's impairments did not render him disabled under the Act. Currently before the Court is Plaintiff's motion, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings reversing the Commissioner's decision or, in the alternative, remanding for further proceedings. (Dkt. 22.) Also before the Court is Defendant's cross-motion, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings affirming the Commissioner's decision. (Dkt. 25.) For the reasons set forth below, I recommend that Plaintiff's motion (Dkt. 22) be granted, and Defendant's cross-motion (Dkt. 25) be denied.
The background facts set forth herein are taken from the SSA Administrative Record (Dkt. 17) (referred to herein as “R.” or the “Record”).
Plaintiff filed applications for SSDI and SSI benefits on July 25, 2016, alleging a disability onset date of January 15, 2015, as a result of his HIV diagnosis, vascular conditions, and physical impairments in both legs and knees. (R. at 168-84, 203.) After Plaintiff's claims were initially denied on October 6, 2016 (id. at 92-107), he requested a hearing before an administrative law judge (“ALJ”) (id. at 108-09). On October 18, 2018, Plaintiff, represented by counsel, testified with the assistance of a Spanish interpreter at a hearing held before ALJ Robert C. Dorf (the “Hearing”) (id. at 44-57). At the Hearing, the ALJ also heard testimony from SSA medical expert John Kwok, M.D., and from vocational expert Melissa J. Fass-Karlin (the “VE”). (Id. at 57-73.)
In a decision issued on November 19, 2018, the ALJ found that, although Plaintiff suffered from the severe impairments of gout hyperuricemia, hypertension (high blood pressure), HIV (asymptomatic), and limited vision (id. at 18), his impairments did not meet or equal the criteria of any impairment listed as disabling in the relevant regulations (id. at 18-19). The ALJ further found that Plaintiff had the residual functional capacity (“RFC”) to perform medium work with certain exertional and non-exertional limitations, and, therefore, was not disabled under the Act (id. at 19). Plaintiff, represented by the same counsel, then sought to appeal to the Appeals Council, submitting the reasons why he disagreed with the ALJ's decision. (Id. at 7-11.) The Appeals Council denied Plaintiffs request for review on December 12, 2019, finding that his reasons for seeking review did not provide a basis for changing the ALJ's decision. (Id. at 1-6.) Thereafter, the ALJ's decision became the final decision of the Commissioner. Through new counsel, Plaintiff now challenges the Commissioner's denial of benefits before this Court.
“A high uric acid level, or hyperuricemia, is an excess of uric acid in your blood. Uric acid is produced during the breakdown of purines, which are found in certain foods and are also formed by your body. Once produced, uric acid is carried in your blood and passes through your kidneys, where most of it is filtered out into the urine. About one in five people has a high uric acid level. It may be related to attacks of gout or the development of kidney stones.” High Uric acid level, Mayo Clinic, https://www.mayoclinic.org/symptoms/high-uric-acidlevel/basics/definition/sym-20050607 (accessed July 27, 2021).
A. Plaintiffs Personal and Employment History
Plaintiff was born in Honduras on October 25, 1958 (R. at 168, 200), making him 56 years old at the time he filed his applications for SSDI and SSI benefits. In the form Disability Report he submitted with the help of a social worker, Plaintiff reported that he had completed the ninth grade in Honduras in 1973 and had later moved to the United States. (Id. at 204.) He indicated that he could not speak, read, write, or understand English. (Id. at 202.) He also reported that he had worked in various “maintenance” positions from September 1980 to January 2015. (Id. at 204.) More particularly, Plaintiff noted that, from 2003 to 2008, he had worked at a shop in Queens, New York, assembling air conditioning units (id. at 266); and that, from 2010 to 2015, he had worked as a cleaner at Rockefeller Center (id.). Plaintiff explained that his most recent work had required him to clean office buildings, collect garbage, vacuum and dust, clean floors and bathrooms, move furniture, and carry heavy items (weighing up to 100 pounds) throughout the day. (Id. at 205, 236.) He testified that he had stopped working in January 2015 because he had “problems with [his] legs” and his circulation, such that he could “no longer stand when working.” (Id. at 54.) As to his home activities, Plaintiff reported that he lived with his adult daughter, and that he could dress himself, shower, and cook when the pain allowed, but that his daughter did the cleaning and shopping. (Id. at 52, 212-15.)
B. Medical Evidence
As Plaintiff reported that his disability began on January 15, 2015, the relevant period under review for purposes of his application for SSDI benefits runs from that date until June 30, 2020, the last date when Plaintiff met the “insured status” requirements of the Act. See 42 U.S.C. §§ 423(a)(1), (c)(1); 20 C.F.R. §§ 404.130, 404.315(a); Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989).
To be eligible for SSDI benefits, “an applicant must be ‘insured for disability insurance benefits.'” Arnone, 882 F.2d at 37 (quoting 42 U.S.C. §§ 423(a)(1)(A), 423(c)(1)). “An applicant's ‘insured status' is generally dependent upon a ratio of accumulated ‘quarters of coverage, '” i.e., quarters in which the applicant earned wages and paid taxes, “to total quarters.” Id. (citations omitted). To qualify for SSDI benefits, “Plaintiffs disability onset date must fall prior to [her] date last insured.” Camacho v. Astrue, No. 08-CV-6425, 2010 WL 114539, at *2 (W.D.N.Y. Jan. 7, 2010) (citing Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)); 20 C.F.R. § 404.315(a).
In contrast, with respect to his application for SSI benefits, the relevant period under review runs from July 25, 2016, the date that Plaintiff applied for those benefits, to November 19, 2018, the date of the ALJ's decision. See 20 C.F.R. §§ 416.330, 416.335; see Barrie ex rel. F.T. v. Berryhill, No. 16cv5150 (CS) (JCM), 2017 WL 2560013, at *2 (S.D.N.Y. June 12, 2017) (adopting report and recommendation).
Generally, “Title II [SSDI] benefits may be paid retroactively for up to 12 months prior to filing of an application. Payment of Title XVI [SSI] benefits, however, cannot precede the month following the month of application.” Roman v. Colvin, No. 13cv7284 (KBF), 2015 WL 4643136, at *1 n.2 (S.D.N.Y. Aug. 4, 2015) (citing 20 C.F.R. §§ 404.621, 416.335); see also 20 C.F.R. § 416.501 (“Payment of [SSI] benefits may not be made for any period that precedes the first month following the date on which an application is filed . . .” (emphasis added)).
1. Records of Plaintiffs Medical Treatment During the Relevant Periods
a. Records From 2015
The earliest notes relating to Plaintiffs medical treatment in the Record date back to July 10, 2015, when he was examined by an infectious disease specialist, Dr. Richard Cindrich, whom he had apparently seen before, and who continued to treat him over time. (R. at 403-04.) On that date in 2015, Plaintiff reported to Dr. Cindrich that he had been taking his prescribed medications (Norvir, Emtricitabine-tenofovir, Didanosine, and Atazanavir) to treat his HIV infection and that he had not missed any doses in the past week. (Id. at 403.) He also reported that he was no longer working, had lost his appetite, was smoking one cigarette a day, was trying to cut down on drinking, and intended to start running in Central Park. (Id. at 404.) On examination, Dr. Cindrich noted that Plaintiff's “[i]mmune deficiency [was] controlled.” (Id. at 405.)
Ritonavir (Norvir), Emtricitabine-Tenofovir (also referred to as Emtricitabine and tenofovir disoproxil fumarate combination), Didanosine, and Atazanavir (Reyataz) are medications that are used together for the treatment of the infection caused by the human immunodeficiency virus (HIV). These medications help keep HIV from reproducing and appear to slow down the destruction of the immune system. See Ritonavir (Oral Route), Mayo Clinic, https://www.mayoclinic.org/drugs-supplements/ritonavir-oral-route/description/drg-20067063 (accessed July 27, 2021); Emtricitabine And Tenofovir (Oral Route), Mayo Clinic, https://www.mayoclinic.org/drugs-supplements/emtricitabine-and-tenofovir-oralroute/description/drg-20061833 (accessed July 27, 2021); Didanosine (Oral Route), Mayo Clinic, https://www.mayoclinic.org/drugs-supplements/didanosine-oral-route/description/drg20068638 (accessed July 27, 2021); Atazanavir (Oral Route), Mayo Clinic, https://www.mayoclinic.org/drugs-supplements/atazanavir-oral-route/description/drg-20062091 (accessed July 27, 2021).
About three weeks later, on July 30, Plaintiff was again seen by Dr. Cindrich, and, at that time, he reported that he was no longer drinking and had been taking his medications. (Id. at 409.) On examination, Dr. Cindrich noted that Plaintiff's viral load, which had previously been “well controlled, ” was now “uncontrolled, ” and Dr. Cindrich posited that this was likely caused by Plaintiff's “missing” doses of his medications. (Id. at 410-11.) Dr. Cindrich then changed certain of Plaintiff's medications. (See Id. at 412 (replacing Didanosine with the anti-retroviral medication Tivicay).)
In August 2015, Plaintiff met again with Dr. Cindrich and reported that he was “[d]oing well with [his] medications.” (Id. at 414.) Dr. Cindrich recorded that Plaintiff's general health was “good, ” but that he should quit smoking. (Id. at 415-16.) Two months later, in October 2015, Plaintiff reported to Dr. Cindrich that he was continuing to do well with his medications, had not missed any doses, and was no longer experiencing nausea (a side effect of a prior medication). (Id. at 418.) On examination, Dr. Cindrich assessed Plaintiff as being “well-developed, well-groomed, [and] well-nourished, ” and noted that Plaintiff's immune deficiency was “controlled.” (Id. at 419-20.)
b. Records From 2016
The next treatment notes in the Record reflect that, in March 2016, Plaintiff returned to Dr. Cindrich for an annual physical. (Id. at 423-34.) During that visit, Plaintiff reported that he had not missed any doses of his medications and had been smoking “sporadically.” (See Id. at 424.) Dr. Cindrich recorded that Plaintiff's gastrointestinal, cardiovascular, and respiratory systems were all “normal” or “regular” and that his immune deficiency was “controlled.” (Id. at 425.)
Two months later, in May 2016, Dr. Cindrich recorded that Plaintiff had been in “Honduras for [the prior] three weeks after his mother fell and broke her hip.” (Id. at 429.) Plaintiff reportedly informed Dr. Cindrich that he was not smoking or drinking; he also indicated that he had taken his “medications every day for at least the last three weeks” (id.), even though, at the same time, he admitted that he sometimes forgot “whether or not he took th[ose] medications” (id.). Upon examination, Dr. Cindrich noted that Plaintiff had “chronic venous stasis” (id.), as well as “mild edema [i.e., swelling] of lower extremities with prominent varicosities” (id. at 430). Dr. Cindrich gave Plaintiff a box to keep track of his medications and assessed Plaintiff's immune deficiency as “controlled” and his general health as “good.” (Id. at 431.)
“Chronic venous insufficiency (CVI) is a condition that occurs when the venous wall and/or valves in the leg veins are not working effectively, making it difficult for blood to return to the heart from the legs. CVI causes blood to ‘pool' or collect in these veins, and this pooling is called stasis.” Chronic Venous Insufficiency (CVI), Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/16872-chronic-venous-insufficiency-cvi (accessed Aug. 2, 2021).
“Varicosities are abnormally dilated and tortuous veins that usually appear in the lower extremities. Varicosities in general occur as a result of an underlying problem with reverse venous flow, also known as venous insufficiency syndrome.” Varicosities, VisualDx, https://www.visualdx.com/visualdx/diagnosis/varicosities?diagnosisId=52484&moduleId=101 (accessed Aug. 2, 2021).
From June 17 to 24, 2016, Plaintiff was hospitalized to treat left knee pain. (Id. at 295, 433-62.) More specifically, on June 17, 2016, Plaintiff went to the BronxCare Hospital Center (“BronxCare”) Emergency Department, complaining of swelling and pain in his left knee. (Id. at 357, 433-34, 445 (reporting to hospital staff that he had “[gone] to bed fine the night before, but woke up [the] next day with swelling to [his] left knee affecting his ambulation.”).) Plaintiff was admitted to the hospital for evaluation of “[s]eptic joint of left knee vs [i]nflammatory [a]rthritis” and was noted as having a past medical history of HIV, as well as prior varicose vein surgery in his left leg. (Id. at 295, 327.) At the time of admission, an examination showed that Plaintiff had mild, diffuse swelling and warmth in his knee, as well as mild pain with passive and active motion, but that he had no erythema (superficial reddening of the skin), no joint crepitus (a popping or crackling sound in the joint), a negative McMurray's test, negative anterior and posterior drawer tests, normal capillary refill, normal pulses, an intact neurovascular system, normal sensation, and full range of motion. (Id. at 435.) It was documented that Plaintiff had a “mildly antalgic gait, ” but was able to bear weight. (Id.) A Doppler ultrasound showed no deep vein thrombosis (id. at 435-36), while a left knee X-ray showed joint effusion and mild degenerative disc disease (id. at 357, 437).
“Septic arthritis is a painful infection in a joint that can come from germs that travel through your bloodstream from another part of your body.” Septic arthritis, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/bone-and-joint-infections/symptoms-causes/syc20350755 (accessed Aug. 2, 2021). “Inflammatory arthritis is the name used to describe a group of diseases caused by an overactive immune system that results in inflammation. Many forms of these diseases manifest mainly with inflammation of the joints felt as joint pain and stiffness, but inflammatory arthritis can also affect other connective tissues, including the lungs, heart, eyes, skin and other organs.” Understanding Inflammatory Arthritis: An Introduction, Hospital for Special Surgery, https://www.hss.edu/conditionsunderstanding-inflammatory-arthritis-anintroduction.asp (accessed Aug. 2, 2021).
McMurray's test involves “rotation of the tibia on the femur to determine injury to meniscal structures.” Stedman's Medical Dictionary 906520 (Westlaw ed. Nov. 2014 update).
“Anterior and posterior drawer tests” assess cruciate ligament rupture. See http://www.fpnotebook.com/Ortho/Exam/KriAntrDrwrTst.htm (accessed Aug. 2, 2021).
An antalgic gait refers to a posture or gait assumed in order to avoid or lessen pain. See Stedman's Medical Dictionary, 65, 91 (25th ed., Williams & Wilkins 1990).
Joint effusion means there is “increased fluid in [the] synovial cavity of a joint.” See Stedman's Medical Dictionary 280790 (Westlaw ed. Nov. 2014 update).
The following day, on June 18, examination results at the hospital were deemed “normal, ” except for Plaintiff's noted left knee swelling, effusion, and pain. (See Id. at 448-49, 454.) On June 19, Plaintiff reported that he “fe[lt] much better, ” and his “knee [was in] less pain, ” and that he was able to “[a]mbulat[e] small distances such as to [the] bathroom.” (Id. at 295.) At that time, it was recorded that there was “no oozing or erythema of left knee” and that Plaintiff had palpable pedal pulses (id. at 458), but it also was found, on examination, that the “edema of the left knee [had] persist[ed] with warmth and tenderness compared to right knee, ” and that Plaintiff's left knee had decreased range of motion, swelling, effusion, positive fluid wave, and was warm to the touch compared to the right (id. at 295-97, 359, 458).
Two days later, on June 21, 2016, Plaintiff was seen and evaluated at his hospital bedside; based on that examination, it was noted that his range of motion was improving to approximately 0-60 degrees with minimal pain, and that he had mild swelling, no tenderness, no erythema, no ecchymosis, no increased warmth, normal pedal pulses, and intact sensation. (Id. at 361.) Later that same day, however, an orthopedist performed a “focused orthopedic physical exam[ination]” of Plaintiff's left knee, which reportedly showed increased swelling, effusion with positive fluid wave, and decreased active range of motion, although no erythema or rash, and an equal temperature compared to the right knee. (See Id. at 357, 445.) The orthopedist indicated a need to rule out septic arthritis or “[p]possible reactive inflammatory arthritis” and performed a needle aspiration of Plaintiff's left knee joint. (Id.) Testing of Plaintiff's joint fluid was negative for growth cultures and gram stains, but pathology did show “inflammatory cells consistent with septic arthritis.” (Id. at 301, 357, 361.)
The treatment notes from the next day, June 22, reflect that, by then, Plaintiff was “practically painless and [had] full range of motion of the left knee.” (Id. at 459.) On June 24, an examination at the hospital showed that he was not in acute distress, had palpable pedal pulses, and had no pedal edema, but that his left dorsal pedis pulse was still reduced compared to the right, and his left knee still showed effusion and a limited range of motion due to pain. (Id. at 327, 460-62.) Plaintiff was scheduled for discharge on June 24 with a peripherally inserted central catheter (“PICC”) for continued antibiotic administration. (See Id. at 327, 460-62.)
Five days later, on June 29, Plaintiff met again with Dr. Cindrich. (Id. at 346.) Plaintiff reported that, before his recent hospitalization, he had not “had problems with pain in the knee or injury to the knee during the recent past, ” but he had suffered sports injuries in his youth. (Id.) Dr. Cindrich noted that the cultures from Plaintiff's knee were “without growth and no source for any infection [could] be found.” (Id. at 347.) An examination showed that Plaintiff had left knee effusion, but with no tenderness, no erythema, and no inguinal lymphadenopathy. (Id. at 348.) Dr. Cindrich assessed that Plaintiff had “possible septic knee, ” HIV, and inflammatory arthritis. (See Id. at 348-49.) Plaintiff's immune deficiency was assessed as “controlled.” (Id. at 349.)
Lymphadenopathy is enlargement greater than one centimeter in more than one lymph node. See Lymphadenopathy, Merk Manual, https://www.merckmanuals.com/professional/cardiovascular-disorders/lymphaticdisorders/lymphadenopathy (accessed Aug. 3, 2021).
The following day, June 30, Plaintiff returned to see Dr. Cindrich because his mother had passed away and he needed to travel to Honduras. (Id. at 342.) At the time, Plaintiff still had the PICC in his left arm. (Id.) Dr. Cindrich noted that Plaintiff's vancomycin level was high and his “renal function [was] compromised, ” and he recommended that Plaintiff discontinue the PICC and vancomycin. (See Id. at 343.) Dr. Cindrich then also “[q]uestion[ed the] diagnosis of septic knee, ” but “nonetheless explained to [Plaintiff] that [he] need[ed] to monitor closely and might well need to continue therapy on return.” (Id.) Dr. Cindrich assessed Plaintiff with vancomycin toxicity, inflammatory arthritis, and HIV. (See Id. at 343-44.)
“Vancomycin is valued for its effectiveness in the treatment of severe infections caused by methicillin-resistant Staphylococcus aureus. [. . . ] Vancomycin-induced nephrotoxicity is a commonly feared and largely preventable adverse effect of vancomycin therapy.” See Acute Renal failure due to vancomycin toxicity in the setting of unmonitored vancomycin infusion, NCBI, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5023302/ (accessed Aug. 2, 2021).
On August 3, 2016, Plaintiff met with Dr. Cindrich and reported that he had been “taking all medications as prescribed without problems” and that he had “not had recurrent problems with the knee[, ] though he ha[d] been active and even [went] running on the beach when he was back in Honduras.” (Id. at 333-34, 339.) Dr. Cindrich noted that Plaintiff had knee effusion but was “[u]nlikely to have had septic knee and [was] not experiencing problems with [the] discontinuation of antibiotic therapy.” (Id. at 335 (noting Plaintiff's “good viral control”).) Dr. Cindrich diagnosed Plaintiff with HIV and inflammatory arthritis. (See id.)
Three months later, on November 23, 2016, Dr. Cindrich recorded that Plaintiff's body had developed an “increasing resistance” to certain of his HIV medications, after testing showed a high viral load. (Id. at 496-97.) Dr. Cindrich wrote that Plaintiff had “maintained his viral load at close to 400 and it [was] unclear if he [was] still nonadherent or that the failure to suppress further [was] due to resistance.” (Id. at 496.) Dr. Cindrich adjusted Plaintiff's medications and assessed his immune deficiency as “uncontrolled.” (See Id. at 496-97.) One week later, on November 30, Plaintiff returned to see Dr. Cindrich, and it was then recorded that Plaintiff had “maintained good adherence with” his newly-prescribed medications, but that some of his prior medications were “found to be invalid antiretrovirals with his resistance pattern.” (Id. at 501.) Dr. Cindrich ordered a re-check of Plaintiff's viral load. (Id. at 502.)
During the following month, on December 12, 2016, Dr. Cindrich noted that Plaintiff's viral load was “below 100, ” which “appear[ed] to be consistent with previous nonadherence” and “not consistent with resistance.” (Id. at 509.) At that time, Dr. Cindrich recorded that Plaintiff's immune deficiency was controlled. (Id. at 510.)
c. Records From 2017 and 2018
In January 2017, Plaintiff saw Dr. Cindrich and told him that he had missed two doses of his medications in the last two weeks; Dr. Cindrich recorded that he, in turn, stressed to Plaintiff that he needed to take his medications daily. (See Id. at 515-16.) On examination, Dr. Cindrich found that Plaintiff was well-developed, well-groomed, well-nourished, and not in distress; he also assessed Plaintiff's immune deficiency as “controlled.” (Id. at 515-17.)
One month later, on February 8, Plaintiff returned to Dr. Cindrich for blood work, and, during the appointment, Plaintiff denied feeling any uncontrolled pain as well as any musculoskeletal symptoms. (Id. at 518-19.) It was recorded that Plaintiff had an intact range of motion, no joint swelling, no joint erythema, no joint warmth, no calf tenderness, and normal strength. (See id.) Further, Plaintiff was assessed as having a normal affect and behavior, being alert and oriented x3 (oriented to person, place, and time), and responsive to verbal commands. (Id. at 519.)
At a follow-up visit in May 2017, Plaintiff stated that he had no uncontrolled pain, was taking his medications as prescribed, had gained 10 pounds, and was “again doing exercises to develop muscle.” (Id. at 524-25.) Dr. Cindrich assessed that Plaintiff's immune deficiency was controlled, and that he appeared well-developed, well-groomed, well-nourished, and not in distress. (Id. at 525-26.) Three months later, on August 15, 2017, Plaintiff informed Dr. Cindrich that he had spent the prior two months in Honduras, where he rode “horses on the beach and ha[d] a good time.” (Id. at 530.) Plaintiff reported that, although he had “[m]issed some days of [his] medication, ” he was, “for the most part[, ] adherent.” (Id.) At that time, Dr. Cindrich recorded that Plaintiff had lost some weight, likely due to a better diet, and that his immune deficiency was “controlled.” (Id. at 530-31 (also observing that Plaintiff appeared well-groomed, well-developed, and well-nourished).)
Then, 10 days later, on August 25, Plaintiff was treated for gout at the Martin Luther King Health Center Emergency Department, where he complained of feeling “a lot of pain” in his right foot, as well as difficulty walking, leg pain, joint swelling, and erythema. (Id. at 533-34.) A musculoskeletal examination at the hospital showed that Plaintiff's range of motion was intact with no ecchymosis (discoloration of the skin resulting from bleeding underneath), no bony tenderness, no malleolar tenderness, 2+ pulses, normal capillary refill, and intact sensation, but that he was walking with an antalgic gait and his right distal foot had mild erythematous (skin redness) with positive minimal tenderness to palpation. (Id. at 535.) A right foot X-ray showed “[s]oft tissue swelling of the hallux, [which] [could] be seen with acute gout, ” and labs showed elevated uric acid. (Id. at 536-37.) Plaintiff saw a rheumatologist at the hospital, who assessed that he had full range of motion in his knees, shoulders, elbows, and wrists; podagra (gout of the big toe); and hyperuricemia (an excess of uric acid in the blood). (Id. at 545.) Plaintiff was assessed with a differential diagnosis of acute gout of the right toe due to renal impairment. (Id.)
Five days later, on August 30, Plaintiff saw Dr. Cindrich and reported that he had “developed pain in the left great toe” and had gone to the hospital “where he was told he ha[d] gout.” (Id. at 546-47.) Dr. Cindrich noted that Plaintiff's “[u]rate [level] was elevated, ” but that he was “responding to Naprosyn”; an examination at the time showed “mild erythema” of the toe joint. (Id. at 547-48.) Dr. Cindrich noted that Plaintiff was doing well with his HIV medications and advised him to continue taking Naprosyn and to start taking Allopurinol. (Id. at 548-49.)
In light of Plaintiff's visit to the hospital five days prior for gout in the right foot, it is unclear from the Record whether Dr. Cindrich erred when he wrote on August 30 that Plaintiff was experiencing pain in the left great toe, as opposed to the right. (Compare R. at 536-37, 545, with Id. at 546-48.)
Allopurinol (Zyloprim) “is used to prevent or lower high uric acid levels in the blood. It is also used to prevent or lower excess uric acid levels caused by cancer medicines or in patients with kidney stones. A high uric acid level can cause gout or gouty arthritis (joint pain and inflammation). Allopurinol is a xanthine oxidase inhibitor that works by decreasing the uric acid produced by the body.” Allopurinol (Oral Route), Mayo Clinic, https://www.mayoclinic.org/drugs-supplements/allopurinol-oral-route/description/drg-20075476 (accessed Aug. 3, 2021).
In October 2017, Plaintiff reported to Dr. Cindrich at a follow-up visit that he still had occasional pain in his right great toe, but that the edema had decreased. (Id. at 552.) Upon examination, Dr. Cindrich noted that Plaintiff appeared well-developed, well-groomed, well-nourished, and not in distress; further, he assessed that Plaintiff had “[g]ood viral control and immune function.” (Id. at 553-54.) Plaintiff was diagnosed with HIV and hyperuricemia. (Id. at 554.)
The final treatment notes in the Record reflect that, on April 19, 2018, Plaintiff again saw Dr. Cindrich for continued management of his HIV and hyperuricemia diagnoses. (Id. at 560.) In these final treatment records, Dr. Cindrich wrote that Plaintiff's immune deficiency was “controlled.” (Id. at 561.)
2. Opinion Evidence From Dr. Cindrich (Reports Dated May 15, 2018 and October 15, 2018)
On May 15, 2018, Dr. Cindrich submitted a “Medical Source Statement.” (Id. at 382-87.) In that Statement, Dr. Cindrich first wrote that he was “unable to assess” Plaintiff's abilities with respect to lifting/carrying, sitting/standing/walking, his use of hands and feet, postural activities, any vision or hearing impairments, or any environmental limitations (id. at 382-86); nonetheless, Dr. Cindrich opined that Plaintiff could perform activities like shopping; traveling without a companion; ambulating without using a wheelchair, walker, or two canes or two crutches; walking a block at a reasonable pace on rough or uneven surfaces; using public transportation; climbing a few steps at a reasonable pace with the use of a single hand rail; preparing a simple meal and feeding himself; caring for his personal hygiene; and sorting, handling, or using paper/files (id. at 387). Dr. Cindrich also noted that Plaintiff had HIV/AIDS with a “diagnosis of AIDS by virtue of a nadir CD4 count of 99 (9%), ” but that his “last CD4 count in February 2018 was 479 with 25%.” (Id.) Dr. Cindrich concluded that Plaintiff was adherent to his medications and appointments and was tolerating his medications well. (See id.)
“Viral load” measures HIV replication in the body. T-helper lymphocyte (“CD4”) cells help the body fight off infection and disease. CD4 cell counts in someone with a healthy immune system range from 500 to 1800. When the CD4 count falls below 200, the person has AIDS. There is usually a correlation between the CD4 count and the viral load; if there is a low CD4 count, then there will be a high viral load. A low baseline viral load is considered 500 or less; a high baseline viral load is over 40, 000. See “Living With AIDS”, a booklet produced by the National Center for HIV, STD and TB Prevention, which is available online at WWW.CDC. GOV/HIV/PUBS/BROCHURE/LIVINGWITHHIV.HTM; “AIDS 101: Guide to HIV Basics, ” which is available at WWW.SFAF.ORG/AIDS101 (accessed Aug. 5, 2021).
Then, on October 15, 2018, Dr. Cindrich completed a second impairment questionnaire. (Id. at 566-67.) After noting, again, that he was “unable to assess” Plaintiff's limitations with respect to lifting/carrying, standing/walking, sitting, postural activities, manipulative activities, and environmental restrictions (see id.), Dr. Cindrich stated that Plaintiff had “HIV infection AIDS CD4 99 2004.” (Id.) He also opined that Plaintiff had “some cognitive dysfunction [and an] inability to concentrate, ” and that these limitations had been present since 2001. (Id.)
3. Opinion Evidence From Medical Consultants
a. September 30, 2016 Report of Internal Medicine Consultative Examiner Dr. Neil Paulvin, D.O.
On September 30, 2016, at the request of the SSA, Plaintiff saw Dr. Neil Paulvin, D.O., for an internal medicine consultative examination. (Id. at 373.) Dr. Paulvin recorded that Plaintiff's chief complaint was “bilateral knee pain” that had been persistent for “several years.” (Id.) Plaintiff reportedly stated that his pain was “present all the time” and was “worse with walking.” (Id.) Dr. Paulvin wrote that Plaintiff described the pain as a 4/10 or 5/10 on the pain scale but denied “any numbness or weakness.” (Id.)
According to Dr. Paulvin, an examination showed that Plaintiff was not in acute distress, had a “normal” gait, could walk on his heels and toes without difficultly, could squat fully, was able to rise from his chair without difficulty, and needed no help changing or getting on or off the examination table. (Id. at 374.) Further, while Dr. Paulvin observed that Plaintiff was walking with a cane and that his knees were tender, Dr. Paulvin also recorded that Plaintiff had normal range of motion in his knees, hips, and ankles; no redness, heat, swelling, or effusion; normal reflexes; full strength; no muscle atrophy; no cyanosis, clubbing, or edema; equal pedal pulses; and no significant varicosities. (Id. at 374-75.) An X-ray of Plaintiff's right knee, taken during the examination, indicated there was “no evidence of acute fracture, dislocation or destructive bony lesion, ” and that the joint space in the knee was “relatively well maintained.” (Id. at 376.) Dr. Paulvin diagnosed Plaintiff with bilateral knee pain and HIV, and he opined that Plaintiff had a “mild limitation [for] bending and lifting secondary to his knee pain.” (Id. at 375.)
b. May 30, 2018 Report of Orthopedic Consultative Examiner Ram Ravi, M.D.
On May 30, 2018, at the request of the SSA, Plaintiff visited an occupational medicine specialist, Dr. Ram Ravi, for an “[o]rthopedic [e]xamination.” (Id. at 390.) At that time (more than a year and a half after the examination by Dr. Paulvin), Dr. Ravi recorded that Plaintiff complained of HIV, bilateral knee pain, inflammatory arthritis, decreased vision bilaterally, and peripheral vascular disease. (Id.) Dr. Ravi noted that Plaintiff reported having had bilateral knee pain for 10 years and inflammatory arthritis for 12 years (see id.); and Plaintiff described his pain in all joints as a “5/10” on the pain scale (id.). Plaintiff also reported a history of “[p]eripheral vascular disease in both [of his] lower extremities for 20 years, ” and that he had been “seen by a specialist.” (Id.) Dr. Ravi noted that Plaintiff had undergone “five surgeries to the left lower extremity, ” and that the pain caused by his peripheral vascular disease was reportedly “dull, ” “intermittent, ” and described by Plaintiff as “6/10” on the pain scale. (Id.) As to activities of daily living, Dr. Ravi recorded that Plaintiff spent time watching television, listening to the radio, and reading. (Id. at 391.)
According to public online records, Dr. Ravi is an occupational medicine specialist. See http://doctor.webmd.com. The parties do not dispute that, on May 30, 2018, Dr. Ravi performed an “orthopedic examination” of Plaintiff. (See Dkts. 23, 26.)
“Peripheral vascular disease (PVD) is a slow and progressive circulation disorder. Narrowing, blockage, or spasms in a blood vessel can cause PVD. PVD may affect any blood vessel outside of the heart including the arteries, veins, or lymphatic vessels. Organs supplied by these vessels, such as the brain, and legs, may not get enough blood flow for proper function. However, the legs and feet are most commonly affected. Peripheral vascular disease is also called peripheral arterial disease.” Peripheral Vascular Disease, Johns Hopkins Medicine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/peripheral-vascular-disease (accessed Aug. 3, 2021). Symptoms of PVD may include: changes in the skin (including decreased skin temperature), weak pulses in the legs and feet, gangrene, hair loss, impotence, wounds that will not heal, numbness, weakness, heaviness in muscles, pain (described as burning or aching) at rest, paleness, reddish-blue discoloration of the extremities, restricted mobility, and severe pain when the artery is narrow or blocked. See id.
On examination, Dr. Ravi noted that Plaintiff was not in acute distress, did not need help changing, and could get on and off the examination table, but that he was unable to walk on heels and toes, could squat only 10%, and had a moderately antalgic gait with and without a cane. (Id. at 391.) Dr. Ravi wrote that Plaintiff used his cane to stand, for pain, for weight-bearing, and for balance, and that he used it consistently in the examination. (See id.) It was also recorded the cane had been “[p]rescribed by a doctor as medically necessary.” (Id.) According to Dr. Ravi, Plaintiff had limited range of motion in his hips, knees, and ankles, and he had varicosities in both lower extremities; at the same time, however, Dr. Ravi found that Plaintiff had full cervical spine flexion, no trigger points, full strength, full range of motion in his upper extremities, no muscle atrophy, and no joint effusion, inflammation, or instability. (Id. at 391-92.) Dr. Ravi wrote that Plaintiff showed 20/200 vision on a vision test without glasses. (Id. at 391.)
Dr. Ravi diagnosed Plaintiff with HIV, bilateral knee pain, inflammatory arthritis, decreased vision bilaterally, and peripheral vascular disease, and assessed his prognosis as “[g]uarded.” (Id. at 392.) Dr. Ravi opined that Plaintiff had no limitations with respect to sitting, but had “[m]oderate” limitations for standing, walking, bending, pushing, pulling, lifting, and carrying due to bilateral knee pain and inflammatory arthritis. (Id.) Dr. Ravi also opined that Plaintiff was limited from activities requiring fine visual acuity due to his decreased vision. (Id.) Dr. Ravi further noted that Plaintiff's blood pressure was high, at 162/90, and advised Plaintiff to go to the hospital for further evaluation of his elevated blood pressure, decreased vision, and peripheral vascular disease. (Id. at 392-93.)
c. May 30, 2018 Report of Internal Medicine Consultative Examiner Silvia Aguiar, M.D.
On the same day as he visited Dr. Ravi (May 30, 2018), Plaintiff met with Dr. Silvia Aguiar for an internal medicine consultative examination. (See Id. at 396.) Dr. Augiar noted that Plaintiff reported a history of hyperuricemia, with one episode of gout in his toes and left knee, as well as HIV. (Id.) Plaintiff reported to Dr. Augiar that “synovial fluid was removed from the left knee [at] the time when he had left knee swelling and hyperuricemia in 2017, ” but he denied having had “any other episodes of left knee swelling” and “denie[d feeling] pain in the left knee” or “loss of function of the knee joints.” (Id.) As to his activities of daily living, Plaintiff reported that he lived with his daughter and helped to cook, clean, do laundry, and shop “as tolerated.” (Id. at 396-97.) He indicated that he showered daily, dressed independently, and regularly watched television and read. (Id. at 397.) A vision examination again showed that Plaintiff had 20/200 vision without glasses. (Id.)
Upon physical examination, Dr. Aguiar recorded that Plaintiff appeared in no acute distress, needed no help changing or getting on and off the examination table, was able to rise from the chair without difficulty, could squat 50%, and could walk on heels and toes without difficulty. (Id.) According to Dr. Aguiar, Plaintiffs gait with and without a cane was within normal limits, but the cane - which Plaintiff reported had been prescribed - was “medically necessary because it corrected] imbalance.” (Id.) Dr. Aguiar recorded a “normal” musculoskeletal examination, with full range of motion in the shoulders, elbows, forearms, wrists, hips, knees, and ankles; stable and nontender joints; and no redness, heat, swelling, or effusion. (Id. at 398.) Dr. Aguiar assessed Plaintiff as having no neurologic deficits, and found that his extremities had no cyanosis (i.e., discoloration due to poor circulation), clubbing, edema, muscle atrophy, or significant varicosities, and that his pulses were physiologic and equal. (Id.) Dr. Aguiar opined that Plaintiff had “mild limitations to heavy lifting and carrying, prolonged standing, prolonged walking, climbing stairs, and crouching.” (Id. at 399.)
C. Plaintiffs Subjective Complaints
1. Plaintiffs Function Report
In August 2016, Plaintiff completed a form “Function Report” in connection with his claims (id. at 212-19); in that report, he wrote that pain affected his sleep, and that he had a “limited” ability to do the following activities: dress, bathe, care for his hair, shave, and feed himself (id. at 213-14). He further wrote that he needed help or reminders with taking his medication (id. at 214), and that his “pain and illness” made it difficult for him to clean or cook (id. at 214-15). While he indicated that he could go out alone and did have a driver's license (id. at 215), he also stated that he could no longer participate in many of his past hobbies (soccer, sports) due to his “pain and illness” (id. at 216). Moreover, Plaintiff wrote that he “no longer socializ[ed] like [he] did before due to [his] pain and illness” (id. at 217), and that he was “limited” in his abilities to lift, stand, walk, sit, climb stairs, kneel, squat, reach, use his hands, and see (id. at 217-18). He also indicated that he had been prescribed both a cane and brace, and that he used both aids when he walked (id. at 218). As for his ability to walk, Plaintiff wrote that he could walk about four to five blocks before needing to take a 10 to 15-minute break (id.) and that he felt pain in both of his knees and lower extremities (id.). He lastly reported that his “pain and illness” had made it difficult for him to “pay attention” and “remember[] things.” (Id. at 218-19.)
2. Plaintiff's Testimony Before the ALJ
As noted above, Plaintiff appeared with counsel and testified with the assistance of a Spanish interpreter at the October 18, 2018 Hearing. (See Id. at 46-57.) Plaintiff testified that he and his daughter took the subway to get to the Hearing (id. at 52), and that, while he had a driver's license, he had not driven a car since 2010 (id. at 51). With respect to his prior employment, Plaintiff testified that he had stopped working at Rockefeller Center in 2015 because there were “[p]roblem[s] with [his] legs, ” particularly the “circulation” to his “veins.” (Id. at 54.) He stated that he had not worked since January 15, 2015. (Id. at 54-55.) Regarding travel, Plaintiff testified that he had traveled to Honduras each year, including in 2016, to visit his mother. (Id. at 55-56.) He explained that he did not use a cane when he traveled, but that he did “limp[]” as he walked through the airport. (Id. at 56.) When asked by the ALJ whether he could “walk on the street, travel, [] carry [his] passport, and present tickets to an airline, ” Plaintiff responded “yes.” (Id. at 59.) Lastly, as to his vision, Plaintiff testified that he needed to get glasses to see into the distance, but that he did not need glasses for close reading. (Id.) Plaintiff then testified that he had recently visited an eye doctor and intended to pick up new glasses a few days after the Hearing. (Id. at 60.)
D. Hearing Testimony of Non-Examining Consultant, Orthopedic Surgeon Dr. John Kwok
Dr. John Kwok, a board-certified orthopedic surgeon, testified at the Hearing based on his review of Plaintiff s medical records. (See Id. at 58, 60.) Dr. Kwok testified that those records reflected that Plaintiff had a history of hyperuricemia, which caused recurrent gout attacks, but that Plaintiff had no other musculoskeletal conditions. (Id. at 58.) According to Dr. Kwok, Plaintiffs gout did not meet or equal a listed impairment. (Id. at 60.)
When asked by the ALJ whether Plaintiff retained the RFC to lift “50 pounds occasionally” and “20 pounds frequently” and to stand or walk six hours in an eight-hour day, Dr. Kwok opined that Plaintiff could perform those tasks, or even more, and that Plaintiff could perform “medium work” or “heavy work.” (Id. 60-61.) Plaintiffs counsel then questioned Dr. Kwok about Plaintiffs peripheral vascular disease, which Dr. Ravi had noted in his written opinion. (Id. at 65.) Specifically, counsel asked Dr. Kwok whether “a person with peripheral vascular disease [would] suffer any impairment in their ability to stand and walk, ” (Id.) In response, Dr. Kwok testified, first, that “the mention in Dr. Ravi's report” about peripheral vascular disease was in the “history” section, and it was not, in Dr. Kwok's view, “documentation of the presence of that disease.” (Id. at 66.) Dr. Kwok then stated:
[A]rterial vascular disease has a great gradation. You can have just a little bit, and I'll bet you anybody who is over the age of 50 has a little bit, and that wouldn't necessarily impart the impairment to anybody versus people who have such advanced disease there is no blood flowing down into the extremities that they suffer such things as gangrene and ulcers and such, or constant failing and in pain. And so there's a great gradation. I don't think there's any evidence in this record to suggest that there's any peripheral vascular disease that is sufficient to cause the . . . impairment.(Id. at 65-66.)
Later, on re-examination, Dr. Kwok testified that, while it was an “appropriate working diagnosis” for Plaintiff, who was “HIV positive, ” to have been diagnosed with septic arthritis in June 2016 when he was admitted to the hospital with a swollen, painful knee joint, it was notable that “[t]he swelling and pain resolved in less than a week and [Plaintiff] was discharged ambulatory from the hospital on medication, ” and that, six months later, “he was back in Honduras and he reported to [his] examiner that he had been running on the beach.” (Id. at 67.) Moreover, while conceding that Dr. Ravi had found that, in 2018, Plaintiff had flexion and extension of the knees at 75 degrees bilaterally (which was not a “normal” finding), Dr. Kwok stressed that Dr. Aguiar had separately found, on the very same day, that Plaintiff had “full range of motion” in his knees, and that Plaintiff had also been found in June 2016 to have been “practically painless and [to have] full range of motion of the left knee.” (Id. at 69-70.) Relying on the two latter findings, Dr. Kwok essentially dismissed Dr. Ravi's findings of limitations, testifying that “Dr. Ravi [was] free to have his opinion, ” and that he (Dr. Kwok) “believe[d] [he] had the same freedom.” (Id. at 70.) According to Dr. Kwok, his own opinion was “based upon the objective evidence that [was] present” in the medical records before him, and that, “as long as [he had] good reasons” for his opinion, he thought he did not “have to defend” it. (Id. at 71.)
E. The VE's Testimony Before the ALJ
As noted above, the ALJ also heard testimony at the Hearing from a vocational expert, Melissa Fass Karlin. (Id. 61-64.) The VE classified Plaintiff's past relevant work as an air conditioning mechanic/installer (Dictionary of Occupational Titles (“DOT”) 637.261-014), which she described as medium, skilled work, and as a cleaner (DOT 381.687-018), which she described as medium, unskilled work. (Id. at 61-62.) The VE also testified that Plaintiff did not have any transferable skills related to his mechanical work. (Id. at 62.)
The ALJ then asked the VE whether there were jobs available for a hypothetical person of Plaintiff's age, education, and work experience, with the RFC to engage in “medium” work as defined in the DOT, but with certain limitations; particularly, the ALJ described the hypothetical person as unable to perform fine visual acuity work (defined as no work with objects smaller than 1/8 of an inch in all dimensions); as unable to perform any tasks requiring English reading or writing; as unable to climb, balance, kneel, or crawl; as able to perform all other postural work “frequent[ly]”; as unable to have unprotected heights exposure, to use heavy machinery, or to drive; and as unable to perform work on “uneven surfaces.” (Id. at 62-63.)
In response, the VE testified that those limitations would preclude Plaintiff's past work, but would allow a hypothetical person to perform the medium, unskilled jobs of a cook helper (DOT 317.687-010), meat clerk (DOT 222.684-010), and kitchen helper (DOT 318.687-010). (Id. at 63-64.)
F. The Current Action and Motions Before the Court
Represented by counsel, Plaintiff filed a Complaint in this action on February 17, 2020, challenging the Commissioner's decision to deny him SSDI and SSI benefits. (See Complaint, dated Feb. 17, 2020 (“Compl.”) (Dkt. 1).) Plaintiff maintained in his Complaint that he was entitled to receive SSDI and SSI benefits because of his impairments (id. ¶¶ 9-11), claiming that the ALJ's decision, as affirmed by the Appeals Council, was “erroneous, not supported by substantial evidence on the record, and/or contrary to the law” (id. ¶ 9).
All of the papers filed with respect to the motion and cross-motion that are now before this Court were filed on March 12, 2021. (See Dkts. 22-26.) Plaintiff's motion for judgment on the pleadings in his favor (Dkt. 22), advances three arguments. First, Plaintiff contends that the ALJ committed legal error by failing to conduct a proper evaluation of the medical opinions in the Record, particularly Dr. Ravi's and Dr. Cindrich's opinions regarding Plaintiff's limitations. (See Memorandum of Law in Support of Plaintiff's Motion for Judgment on the Pleadings, dated Mar. 12, 2021 (“Pl. Mem.”) (Dkt. 23), at 11-13.) Second, he contends that that the ALJ's RFC determination was not supported by substantial evidence, because, in Plaintiff's view, the ALJ replaced competent medical opinions with his own lay interpretation of the medical records when making the RFC assessment. (Id. at 13-14.) And, third, Plaintiff asserts that the ALJ failed to take adequate steps to develop the Record, given that Dr. Ravi's opinion referenced Plaintiff's history of surgeries to treat his peripheral vascular disease in both lower extremities, but the Record did not include any notes from those surgeries. (Id. at 15-16.)
In opposition to Plaintiff's motion and in support of the cross-motion for judgment on the pleadings affirming the Commissioner's decision (Dkt. 25), Defendant contends that the underlying decision of the ALJ was legally correct and supported by substantial evidence; specifically, Defendant argues that the ALJ's decision, including his RFC determination, properly (1) weighed the opinion evidence and accounted for the limitations assessed by the examiners, (2) evaluated the treatment notes in the Record, and (3) developed the Record (see Memorandum of Law in Opposition to Plaintiff's Motion for Judgment on the Pleadings and in Support of [Defendant's] Cross-Motion for Judgment on the Pleadings, dated Mar. 12, 2021 (“Def. Mem.”) (Dkt. 26)).
In reply, Plaintiff largely restates his principal arguments. (See generally Reply Memorandum of Law, dated Mar. 12, 2021 (“Pl. Reply Mem.”) (Dkt. 24).)
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
A. Judgment on the Pleadings
Judgment on the pleadings under Rule 12(c) is appropriate where “the movant establishes ‘that no material issue of fact remains to be resolved, '” Guzman v. Astrue, No. 09cv3928 (PKC), 2011 WL 666194, at *6 (S.D.N.Y. Feb. 4, 2011) (quoting Juster Assocs. v. City of Rutland, Vt., 901 F.2d 266, 269 (2d Cir. 1990)), and a judgment on the merits can be made “‘merely by considering the contents of the pleadings, '” id. (quoting Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988)).
Judicial review of a decision of the Commissioner is limited. The Commissioner's decision is final, provided that the correct legal standards are applied, and findings of fact are supported by substantial evidence. 42 U.S.C. § 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). “[W]here an error of law has been made that might have affected the disposition of the case, [a] court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (citation omitted)). Thus, the first step is to ensure that the Commissioner applied the correct legal standards. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
The next step is to determine whether the Commissioner's decision is supported by substantial evidence. See Tejada, 167 F.3d at 773. Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation and quotation marks omitted). In making this determination, a court must consider the underlying record. The reviewing court does not, however, decide de novo whether a claimant is disabled. See Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002) (“Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, we will not substitute our judgment for that of the Commissioner.”); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997). Thus, if the correct legal principles have been applied, this Court must uphold the Commissioner's decision upon a finding of substantial evidence, even where contrary evidence exists. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to support either position, the determination is one to be made by the factfinder.”); see also DeChirico v. Callahan, 134 F.3d 1177, 1182-83 (2d Cir. 1998) (affirming decision where substantial evidence supported both sides).
B. The Five-Step Sequential Evaluation
In evaluating a disability claim, an ALJ must follow the five-step procedure set out in the regulations governing the administration of Social Security benefits. See 20 C.F.R. §§ 404.1520, 416.920; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). Throughout the inquiry, the ALJ must consider four primary sources of evidence: “(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.” Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (citations omitted).
The first step of the inquiry requires the ALJ to determine whether the claimant is engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If not, at the second step, the ALJ determines whether the claimant has a “severe” impairment or combination of impairments that significantly limits his or her physical or mental ability to do basic work activities. Id. §§ 404.1520(a)(4)(ii), (c); id. §§ 416.920(a)(4)(ii), (c). If the claimant does suffer from such an impairment, then the third step requires the ALJ to determine whether this impairment meets or equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the “Listings”). Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If it does, then the claimant is presumed to be disabled “without considering [the claimant's] age, education, and work experience.” Id. §§ 404.1520(d), 416.920(d).
Where the claimant alleges a mental impairment (which is not the case here), Steps Two and Three require the ALJ to apply a “special technique, ” outlined in 20 C.F.R. § 416.920a, to determine the severity of the claimant's impairment at Step Two, and to determine whether the impairment satisfies Social Security regulations at Step Three. See Kohler, 546 F.3d at 265.
If the claimant's impairment does not meet or equal a listed impairment, then the ALJ must determine, based on all the relevant evidence in the record, the claimant's RFC, or ability to perform physical and mental work activities on a sustained basis. Id. §§ 404.1545, 416.945. The ALJ then proceeds to the fourth step of the inquiry, which requires the ALJ to determine whether the claimant's RFC allows the claimant to perform his or her “past relevant work.” Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Finally, if the claimant is unable to perform his or her past relevant work, the fifth step requires the ALJ to determine whether, in light of the claimant's RFC, age, education, and work experience, the claimant is capable of performing “any other work” that exists in the national economy. Id. §§ 404.1520(a)(4)(v), (g); id. §§ 416.920(a)(4)(v), (g).
On the first four steps of the five-step evaluation, the claimant generally bears the burden of establishing facts to support his or her claim. See Berry, 675 F.2d at 467 (internal citation omitted). At the fifth step, the burden shifts to the Commissioner to “show that there is work in the national economy that the claimant can do.” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). The Commissioner must establish that the alternative work “exists in significant numbers” in the national economy and that the claimant can perform this work, given his or her RFC and vocational factors. 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2).
Where the claimant only suffers from exertional impairments, the Commissioner can satisfy this burden by referring to the Medical-Vocational Guidelines (the “Grids”), set out in 20 C.F.R. Pt. 404, Subpt. P, App. 2. Where, however, the claimant suffers non-exertional impairments, such as psychiatric impairments, that “‘significantly limit the range of work permitted by his [or her] exertional limitations,' the ALJ is required to consult with a vocational expert, ” rather than rely exclusively on these published guidelines. Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp, 802 F.2d at 605-06).
C. Duty To Develop the Record
“Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record, ” Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)), and failure to develop the record may be grounds for remand, Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999); accord Craig v. Comm'r of Soc. Sec., 218 F.Supp.3d 249, 262 (S.D.N.Y. 2016) (noting that “[r]emand is appropriate where this duty is not discharged”). Indeed, “where 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.'” Rosa, 168 F.3d at 79 (quoting Perez, 77 F.3d at 47).
The SSA regulations explain this duty to claimants this way:
Before we make a determination that you are not disabled, we will develop your complete medical history . . . [and] will make every
reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports. . . . ‘Every reasonable effort' means that we will make an initial request for evidence from your medical source and, at any time between 10 and 20 calendar days after the initial request, if the evidence has not been received, we will make one follow[-]up request to obtain the medical evidence necessary to make a determination.20 C.F.R. §§ 404.1512(b)(1), (b)(1)(i); 416.912(d), (d)(1). “[I]f the documents received lack any necessary information, the ALJ should recontact the treating physician.” Oliveras ex rel. Gonzalez v. Astrue, No. 07cv2841 (RMB) (JCF), 2008 WL 2262618, at *6 (S.D.N.Y. May 30, 2008), report and recommendation adopted, 2008 WL 2540816 (June 25, 2008). The ALJ also has the authority to subpoena medical evidence on behalf of the claimant, 42 U.S.C. § 405(d), but is not required to subpoena medical records if they are not received following two ordinary requests, Gonell De Abreu v. Colvin, No. 16cv4892 (BMC), 2017 WL 1843103, at *5 (E.D.N.Y. May 2, 2017); 20 C.F.R. §§ 404.950(d)(1); 416.1450(d)(1).
The SSA regulations further explain that a claimant's “complete medical history” means the records of his or her “medical source(s).” 20 C.F.R. §§ 404.1512(b)(1)(ii); 416.912(d)(2). If the information obtained from medical sources is insufficient to make a disability determination, or if the ALJ is unable to seek clarification from treating sources, the regulations also provide that the ALJ should ask the claimant to attend one or more consultative evaluations. Id. §§ 404.1512(b)(2), 404.1517; 416.912(e), 416.917. Where, however, there are no “obvious gaps” in the 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 question of “[w]hether the ALJ has met his duty to develop the record is a threshold question. Before reviewing whether the Commissioner's final decision is supported by substantial evidence. . . the court must first be satisfied that the ALJ provided plaintiff with a full hearing under the Secretary's regulations and also fully and completely developed the administrative record.” Craig, 218 F.Supp.3d at 261-62 (internal quotation marks and citations omitted); see also 42 U.S.C. § 405(g). Further, the court must satisfy itself that the administrative record has been adequately developed, regardless of whether the issue is raised by the plaintiff. See Castillo v. Comm'r of Soc. Sec., No. 17cv09953 (JGK) (KHP), 2019 WL 642765, at *7 (S.D.N.Y. Feb. 15, 2019) (noting that, even where the plaintiff does not argue that an ALJ failed to develop the record, the court “is nevertheless obliged to conduct its own independent assessment of whether the ALJ properly discharged this duty”).
D. Assessment of a Claimant's Subjective Complaints
Assessment of a claimant's subjective complaints about his or her symptoms or the effect of those symptoms on the claimant's ability to work involves a two-step process. Where a claimant complains that certain symptoms limit his or her capacity to work, the ALJ is required, first, to determine whether the claimant suffers from a “medically determinable impairment[ ] that could reasonably be expected to produce” the symptoms alleged. 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1). Assuming the ALJ finds such an impairment, then the ALJ must take the second step of “evaluat[ing] the intensity and persistence of [the claimant's] symptoms, ” considering “all of the available evidence, ” to determine “how [the] symptoms limit [the claimant's] capacity for work.” Id. §§ 404.1529(c)(1), 416.929(c)(1). In doing so, the ALJ must consider all of the available evidence, and must not “reject [ ] statements about the intensity and persistence” of the claimant's symptoms “solely because the available objective medical evidence does not substantiate [the claimant's] statements.” Id. §§ 404.1529(c)(2), 416.929(c)(2). Instead, where the claimant's contentions regarding his or her symptoms are not substantiated by the objective medical evidence, the ALJ must evaluate the claimant's statements in relation to the objective evidence and other evidence, in order to determine the extent to which the claimant's symptoms affect his or her ability to do basic work activities. Id. §§ 404.1529(c)(3)-(4); id. §§ 416.929(c)(3)-(4); see also SSR 16-3p.
Effective on March 28, 2016, SSR 16-3p superseded SSR 96-7p, which had required the ALJ to make a finding on the credibility of the claimant's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms, where those statements are not substantiated by objective medical evidence. See SSR 96-7p (S.S.A. July 2, 1996). The new ruling, SSR 16-3p, eliminates the use of the term “credibility” from the SSA's sub-regulatory policy, in order to “clarify that subjective symptom evaluation is not an examination of an individual's character.” SSR 16-3p (S.S.A. Mar. 28, 2016). Instead, adjudicators are instructed to “consider all of the evidence in an individual's record when they evaluate the intensity and persistence of symptoms after they find that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms.” Id. Both the two-step process for evaluating an individual's symptoms and the factors used to evaluate the intensity, persistence and limiting effects of an individual's symptoms remain consistent between the two rulings. Compare SSR 96-7p with SSR 16-3p. As the ALJ's decision in this matter was issued after the new regulation went into effect, this Court will review the ALJ's evaluation of Plaintiff's statements regarding the intensity of her symptoms under the later regulation, SSR 16-3p.
While an ALJ is required to take a claimant's reports of his or her limitations into account in evaluating his or her statements, an ALJ is “not required to accept the claimant's subjective complaints without question.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). To the extent the ALJ determines that the claimant's statements are not supported by the medical record, however, the ALJ's decision must include “specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, ” and the reasons must be “clearly articulated” for a subsequent reviewer to assess how the adjudicator evaluated the individual's symptoms. SSR 16-3p. The factors that an ALJ should consider in evaluating the claimant's subjective complaints, where they are not supported by objective medical evidence alone, are: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medications taken to alleviate the symptoms; (5) any treatment, other than medication, that the claimant has received for relief of the symptoms; (6) any other measures that the claimant employs to relieve the symptoms; and (7) other factors concerning the claimant's functional limitations and restrictions as a result of the symptoms. See 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii); id. §§ 416.929(c)(3)(i)-(vii).
E. The Treating Physician Rule
Under the so-called “treating physician rule, ” the medical opinion of a treating source as to “the nature and severity of [a claimant's] impairments” is entitled to “controlling weight, ” where the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.927(c)(2), 416.927(c)(2). “Treating source” is defined as the claimant's “own physician, psychologist, or other acceptable medical source who . . . has provided [the claimant] with medical treatment or evaluation” and who has had “an ongoing treatment relationship” with him or her. 20 C.F.R. §§ 404.902, 416.902. 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.” 20 C.F.R. §§ 404.927(c)(2), 416.927(c)(2); see Taylor v. Barnhart, 117 Fed.Appx. 139, 140 (2d Cir. 2004) (summary order).
In accordance with Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 11 (Jan. 18, 2017), the treating physician rule, as described herein, will no longer be in effect for applications made to the SSA on or after March 27, 2017.
Where an ALJ determines that a treating physician's opinion is not entitled to “controlling weight, ” the ALJ must “give good reasons” for the weight accorded to the opinion. 20 C.F.R. §§ 404.927(c)(2), 416.927(c)(2) . Failure to “give good reasons” is grounds for remand. Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (“We do not hesitate to remand when the Commissioner has not provided ‘good reasons' for the weight given to a treating physician's opinion . . . .”). Moreover, in determining the weight to be accorded to an opinion of a treating physician, the ALJ “must apply a series of factors, ” Aronis v. Barnhart, No. 02cv7660 (SAS), 2003 WL 22953167, at *5 (S.D.N.Y. Dec. 15, 2003) (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) ), including: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including whether the treatment received was particular to the claimant's impairment; (3) the supportability of the physician's opinion; (4) the consistency of the physician's opinion with the record as a whole; and (5) the specialization of the physician providing the opinion, 20 C.F.R. §§ 404.927(c)(2)-5, 416.927(c)(2)-(5); see Shaw, 221 F.3d at 134 (noting that these five factors “must be considered when the treating physician's opinion is not given controlling weight”).
On February 23, 2012, the Commissioner amended 20 C.F.R. §§ 404.1527 and 416.927, by, among other things, removing paragraph (c), and re-designating paragraphs (d) through (f) as paragraphs (c) through (e).
Even where a treating physician's opinion is not entitled to “controlling weight, ” it is generally entitled to “more weight” than the opinions of non-treating and non-examining sources. 20 C.F.R. §§ 404.927(c)(2), 416.927(c)(2); see SSR 96-2p (S.S.A. July 2, 1996) (“In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.”); see also Gonzalez v. Apfel, 113 F.Supp.2d 580, 589 (S.D.N.Y. 2000). A consultative physician's opinion, by contrast, is generally entitled to “little weight.” Giddings v. Astrue, 333 Fed.Appx. 649, 652 (2d Cir. 2009) (Summary Order) (internal quotation marks and citation omitted). This is because consultative examinations “are often brief, are generally performed without benefit or review of the claimant's medical history, and, at best, only give a glimpse of the claimant on a single day.” Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 55 (2d Cir. 1992) (internal quotation marks and citations omitted). The opinions of consultative physicians, though, “can constitute substantial evidence in support of the ALJ's decision” when the opinion of a claimant's treating physician cannot be obtained. Sanchez v. Commissioner of Social Sec., No. 15cv4914, 2016 WL 8469779, at *10 (S.D.N.Y. Aug. 2, 2016), report and recommendation adopted by 2017 WL 979056 (Mar. 13, 2017).
II. THE ALJ'S DECISION
On November 23, 2018 the ALJ issued his decision, finding that Plaintiff was not disabled for purposes of the Act and did not qualify for SSDI or SSI benefits. (R. at 15-27.) In rendering that decision, the ALJ applied the required five-step sequential evaluation. (See id.)
A. Steps One Through Three of the Sequential Evaluation
At Step One, the ALJ determined that Plaintiff met the “insured status” requirements of the Act, and that he had not engaged in substantial gainful activity during the relevant periods. (Id. at 18.) At Step Two, the ALJ found that Plaintiff had the following severe impairments: gout hyperuricemia, hypertension, HIV (asymptomatic), and vision impairments - although Plaintiff was “waiting to pick up his eye [g]lasses from the optometrist.” (Id.) At Step Three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (Id. at 18-19.)
As Plaintiff does not challenge the ALJ's findings at Step Three, this Court will not repeat the ALJ's recitation of the reasons why Plaintiffs various impairments did not meet any Listings. (See R. at 18-19.)
B. The ALJ's Assessment of Plaintiffs RFC
The ALJ determined that Plaintiff had the RFC to perform medium work (as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c)), with the following limitations: he could not perform fine visual acuity work, meaning no work with objects smaller than 1/8 of an inch in all dimensions; he could not perform any task requiring English reading or writing; he could not climb, balance, kneel, or crawl; he could perform all other “postural” activities on a “frequent” basis; and there could be no unprotected heights exposure, no heavy machinery operations, no driving, and no uneven surfaces. (Id. at 19.)
In making this RFC determination, the ALJ found that Plaintiff had medically determinable impairments that “could reasonably be expected to cause the . . . alleged symptoms, ” but that his “statements concerning the intensity, persistence[, ] and limiting effects of these symptoms” were “not entirely consistent with the medical evidence and other evidence in the record” and, ultimately, with the RFC assessment the ALJ had developed based on that evidence. (Id. at 20.)
In particular, in considering the medical records before him, as well as Plaintiffs reported activities of daily living, the ALJ noted that:
• The treatment records indicated that Plaintiff was admitted to the hospital for treatment of a septic joint of his left knee, as well as inflammatory arthritis, in June 2016; but, by August 2016, it was recorded that Plaintiff had not had recurrent problems with the knee and had “been active and even running on the beach when he was back in Honduras.”
• In May 2018, when Plaintiff had two consultative examinations on the same day, he reported that he used a cane, which had been prescribed by a doctor, but, during the Hearing in October 2018, Plaintiff admitted that he had previously walked through the airport without the use of a cane and the Record did not include any medical provider's prescription for the cane. Also, Plaintiff had arrived by train to the Hearing and there was no evidence that he had a cane with him at the time.
•Though there was “some objective evidence in the medical record” before the ALJ of Plaintiff s diagnosed “hypertension, ” that same medical evidence did “not show that this condition would have more than a minimal effect on [Plaintiffs] ability to meet the basic demands of work activity.”
• With respect to Plaintiffs HIV diagnosis, the medical evidence supported that he was “asymptomatic” and that the diagnosis did not lead to any functional limitations.
•Regarding Plaintiffs vision, although he had recently not passed the vision test to renew his license, Plaintiff had reportedly sought treatment from an ophthalmologist and was going to pick up his glasses within days of the Hearing.
• As to Plaintiffs reported activities, there was a medical note from June 2015 referencing the fact that Plaintiff had reportedly planned to start running in Central Park. Also, in September 2016, Plaintiff had reported to Dr. Paulvin that he was able to cook, shower, and dress himself. Finally, during the Hearing in October 2018, Plaintiff testified that, while in the airport, he had been able to read his tickets and present his passport.(Id. at 21-24.)
After referencing that evidence, the ALJ turned to the medical opinion evidence, starting with Dr. Kwok's testimony at the Hearing. (See Id. at 22-23.) The ALJ wrote that he found Dr. Kwok's opinion to be “generally consistent with and well supported by a thorough review of the entire medical record.” (Id. at 22.) Although Dr. Kwok had never examined Plaintiff, the ALJ nonetheless chose to give “great weight” to his opinion that Plaintiff could perform “medium” (or even “heavy”) exertional level work, reasoning that Dr. Kwok “had an opportunity to listen to [Plaintiffs] testimony and review the medical record, address questions at the [H]earing, and he stated his reasons to support his opinion.” (Id. at 22-23.)
In contrast, the ALJ accorded only “some weight” to Dr. Paulvin's September 2016 opinion that Plaintiff had a mild limitation in bending and lifting secondary to his knee pain. (Id. at 23.) The ALJ reasoned that this opinion was not entitled to greater weight because Dr. Paulvin's report (1) had not referenced the fact that, in August 2016, Plaintiff had “reported running on the beach in Honduras”; and (2) did not include a “function-by-function analysis” of Plaintiff's “functional abilities.” (Id. at 23.)
Notably, the ALJ accorded only “little weight” to Dr. Ravi's May 2018 consultative orthopedic opinion that Plaintiff had a moderate limitation in standing, walking, bending, pushing, pulling, lifting, and carrying due to bilateral knee pain and inflammatory arthritis. (Id.) The ALJ noted that, while at the time of Dr. Ravi's examination, Plaintiff had reported that he needed a cane at all times, his later testimony at the Hearing had “indicated” to the ALJ “that he [did] not use a cane[, ] as he did not need it to walk in the airport, and he [went] back to Honduras yearly.” (Id.) The ALJ also observed that Dr. Ravi's report (like Dr. Paulvin's report) had not referenced that Plaintiff had been “able to run on the beach in Honduras” in August 2016. (Id.) According to the ALJ, these two points suggested that “Dr. Ravi may have considered [Plaintiff's] statements as reported to him that were not supported by the evidence, ” and, that it was therefore appropriate to discount his opinion. (Id.) The ALJ, however, accorded some weight to Dr. Ravi's opinion that Plaintiff could not perform activities requiring fine visual acuity, and accordingly included a visual acuity limitation in the RFC. (Id.)
The ALJ similarly gave “little weight” to the opinion provided by Dr. Augiar (who, as noted above, had seen Plaintiff on the same date as he was seen by Dr. Ravi) that Plaintiff had a mild limitation in heavy lifting, carrying, prolonged standing, prolonged walking, climbing stairs, and encroaching. (Id. at 24.) Repeating the rationale that he gave for rejecting Dr. Ravi's opinion, the ALJ noted that Dr. Augiar, too, “may have considered [Plaintiff's] statements as reported to [her] that were not supported by the evidence, ” especially since there was “no indication that [Dr. Augiar] was aware [Plaintiff] was able to run on the beach in Honduras and that he [was] able to ambulate in the airport when he travel[ed] yearly to Honduras without a cane.” (Id.)
Lastly, as to Dr. Cindrich's two treating opinions (authored in May and October 2018), the ALJ (1) afforded “great weight” to the May 2018 opinion, which had assessed Plaintiff as able to perform activities like shopping, traveling without a companion, ambulating without using a wheelchair, walker, two canes or two crutches, and walking a block at a reasonable pace on rough or uneven surfaces, but (2) afforded “no weight” to the October 2018 opinion, which had assessed Plaintiff as having some cognitive dysfunction and an inability to concentrate. (See id. at 23-24.) In entirely rejecting the latter opinion (and, necessarily, Plaintiff's self-reported difficulties in paying attention due to pain (see Id. at 218)), the ALJ noted:
[T]he evidence as a whole does not support significant difficulties concentrating. Again, as stated throughout, [Plaintiff] is able to travel to and from Honduras on a yearly basis. It is likely [Plaintiff] is able to concentrate, as traveling generally requires packing of luggage, coordination of paperwork, and itinerary and tickets, filling out customs paperwork, both from the United States and back to [the] United States. There is no evidence that [Plaintiff] had difficulties concentrating in performing tasks that are generally required when traveling. In addition, again, the evidence as a whole does not support that [Plaintiff] ha[d] difficulty concentrating.(Id. at 24.)
Overall, based upon his review of the record and the testimony of Plaintiff and Dr. Kwok, the ALJ determined that Plaintiff could perform work at a medium exertional level with the limitations identified in the RFC assessment. (Id. at 22.) In making this determination, the ALJ once again stressed that “the fact that [Plaintiff] reported [that] he [was] able to run on the beach in Honduras and [that] he travel[ed] to Honduras yearly undermine[d] his allegations of total disability.” (Id.)
C. Steps Four and Five of the Sequential Evaluation
At Step Four, the ALJ concluded that Plaintiff was unable to perform any past relevant work (id. at 24). Ultimately, at Step Five, the ALJ found that Plaintiff was able to perform work existing in the national economy during the relevant periods. (Id. at 24-26.) In making this determination, the ALJ considered Plaintiff's age, education, and RFC, noting specifically that Plaintiff was “within a few days to a few months of attaining the next higher age category” and that he had a limited education and limited ability to communicate in English. (Id.) The ALJ did not address the transferability of Plaintiff's job skills, as he found that this factor was “not material to the [disability] determination because using the Medical-Vocational Rules as a framework support[ed] a finding that [Plaintiff was] ‘not disabled,' whether or not [he] ha[d] transferable job skills.” (Id.) In the end, the ALJ relied on the testimony of the VE, who had testified that an individual of Plaintiff's age, education, work experience, and RFC (as determined by the ALJ) would be able to perform various medium, unskilled jobs existing in the national economy with a Specific Vocational Preparation (“SVP”) level of 2. (Id. at 26.)
As set out above, Plaintiff was 56 years old at the alleged disability onset date, making him an individual of “advanced age” under 20 C.F.R. §§ 404.1563(b), 416.963(b). Notably, the ALJ explained in his decision that Plaintiff had “changed [his] age category to ‘closely approaching retirement age, '” and that, although a “borderline age situation exist[ed] because [he] was within a few days to a few months of attaining the next higher age category and use of the higher age category would result in a finding of ‘disabled' instead of ‘not disabled, '” the Record reflected that “use of the higher age category” was not supported where factors such as his education and past work experience did not limit Plaintiff's “ability to adjust to other work.” (R. at 25.) Plaintiff does not challenge the ALJ's findings in this regard. (See Pl. Mem.)
The DOT defines Level 2 work as requiring no more than one month of training. Appendix C: Components of the Definition Trailer, Dictionary of Occupational Titles, https://occupationalinfo.org/appendxc1.html#II (accessed Aug. 8, 2021).
The ALJ thus concluded that Plaintiff had not been under a disability, as defined under the Act, from January 15, 2015 (the alleged onset date of his disability) through November 23, 2018 (the date of the decision). (Id.)
III. REVIEW OF THE ALJ'S DECISION
As the ALJ used the applicable five-step evaluation in analyzing Plaintiff's disability claim, the initial question before this Court is whether, in proceeding under this accepted protocol, the ALJ made any errors of law that might have affected the disposition of Plaintiff's claim. If the ALJ did not commit legal error, then this Court must go on to determine whether the ALJ's determination that Plaintiff was not disabled was supported by substantial evidence.
Upon review, this Court finds that the ALJ did make errors of law that might have affected the outcome of Plaintiff's claim. In his evaluation of Plaintiff's exertional limitations, the ALJ erred by failing to conduct a proper evaluation of the medical opinion evidence in the Record and, relatedly, failed to take adequate steps to develop the Record. Also, in consideration of Plaintiff's non-exertional limitations, the ALJ failed to weigh the opinion of Plaintiff's treater, Dr. Cindrich, in accordance with the requirements of the treating physician rule. These errors were not harmless, and, accordingly, this Court recommends that this matter be remanded for further administrative proceedings.
A. The ALJ's Errors Concerning Plaintiff's Exertional Limitations
1. The ALJ's Failure To Develop the Record
As a threshold matter, this Court must determine whether the ALJ adequately developed the Record in this case. See Craig, 218 F.Supp.3d at 261-62. On this issue, this Court notes that, even though Dr. Ravi had referenced Plaintiff's reported history of “[p]eripheral vascular disease in both [of his] lower extremities for 20 years” (including Plaintiff's reported visits to see a “specialist, ” the pain Plaintiff felt due to the disease, and his prior surgeries “to the left lower extremity”) (see R. at 390), the Record does not contain any treatment notes from a specialist or surgeon relating to that disease during the relevant periods (see generally id.). In his decision, the ALJ recognized this gap in the medical evidence (see Id. at 20-21 (noting there were no objective test results relating to peripheral artery disease)), yet there is no indication in the Record that the ALJ sought to obtain the missing records, see Vasquez v. Saul, No. 16cv3610 (VSB) (DCF), 2019 WL 5682631, at *6 (S.D.N.Y. Nov. 1, 2019) (adopting report and recommendation) (noting that the “governing regulations require” the Commissioner to make two attempts to acquire treatment records).
In light of Dr. Ravi's report that Plaintiff suffered from peripheral vascular disease, which reportedly caused Plaintiff to feel recurrent pain in his lower extremities, and Plaintiff's own reports that his pain caused him work-related difficulties, including with concentration (see R. at 218), the ALJ erred by apparently failing to take steps to seek any available specialist or surgical records. See Rosa, 168 F.3d at 79 n.5. Under the circumstances, and to enable full judicial review, I recommend that this matter be remanded for further administrative proceedings, and that, on remand, the ALJ be instructed to develop the Record by seeking to obtain any potentially available records, from within the relevant periods, of evaluation, testing, and treatment of Plaintiff's peripheral vascular disease.
2. The ALJ's Failure To Give Proper Weight to the Medical Opinion Evidence
The ALJ also erred by failing to weigh the medical opinion evidence in a manner consistent with applicable regulations and precedent. It is true that the Record before this Court does not contain any medical opinions from Dr. Cindrich, Plaintiff's treating physician, that are specific to Plaintiff's exertional limitations, such as lifting/carrying, sitting/standing/walking, and other postural activities. Rather, in each of the two questionnaires he completed for the SSA, Dr. Cindrich specified that he was “unable to assess” whether Plaintiff had any of those limitations. (R. at 382-86, 566-67.) The Record, however, does contain the opinions of three examining physicians (Drs. Paulvin, Ravi, and Aguiar) and one non-examining physician (Dr. Kwok), all of whom opined about Plaintiff's exertional limitations, or the lack thereof. Although these opinions are not entitled to controlling weight, they do “take[] on particular significance” in the absence of a controlling treating physician opinion. Dioguardi v. Comm'r of Soc. Sec., 445 F.Supp.2d 288, 295 (W.D.N.Y. 2006).
As a general rule, where no opinion from the claimant's treating physician is available, an ALJ is to give “more weight . . . to an examining source than to a non[-]examining source.” Rodriguez v. Colvin, No. 12cv3931 (RJS) (RLE), 2014 WL 5038410, at *17 (S.D.N.Y. Sept. 29, 2014) (citing 20 C.F.R. § 416.927(c)-(e)). Although an ALJ is permitted to consider the opinion of a non-examining source, the regulations caution that “because non[-]examining sources have no examining or treating relationship with [the claimant], the weight [given to] their opinions will depend on the degree to which they provide supporting explanations for their opinions.” 20 C.F.R. § 404.1527(c)(3). In line with that instruction, courts in this Circuit have held that it is improper for an ALJ to place significant weight on the findings of a non-examining source when those findings differ from other medical evidence of record. See Frederick v. Barnhart, 317 F.Supp.2d 286, 298-99 (W.D.N.Y. 2004) (finding error where the ALJ relied primarily on the opinion of the non-examining, non-treating physician); see also Soto v. Comm'r of Soc. Sec, No. 19-CV-4631 (PKC), 2020 WL 5820566, at *7 (E.D.N.Y. Sept. 30, 2020) (stating that “the opinion of a non-examining medical source - even a specialist - is subject to limitations," as “[c]ourts in this Circuit long have casted doubt on assigning significant weight to the opinions of consultative examiners when those opinions are based solely on a review of the record”). Even where a non-examining opinion is properly afforded some weight, it, alone, cannot be considered substantial evidence. See Roman v. Astrue, No. 10-CV-3085 (SLT), 2012 WL 4566128, at *16 (E.D.N.Y. Sept. 28, 2012) (“The medical opinion of a non-examining medical expert does not constitute substantial evidence and may not be accorded significant weight.” (citing Pratts v. Chater, 94 F.3d 34, 38 (2d Cir. 1996))).
Here, the ALJ afforded “great weight” to the opinion of the Dr. Kwok, who, according to the ALJ, had “listen[ed] to [Plaintiffs] testimony[, ] review[ed] the medical record, address[ed] questions at the [H]earing, and stated his reasons to support his opinion.” (R. at 23.) Dr. Kwok, however, never examined Plaintiff, and assigning significant weight to the opinion of a non-examining medical expert - over the opinions of examining experts - can constitute error. See, e.g., Roman, 2012 WL 4566128, at *16 (finding error in such a circumstance); cf. Scognamiglio v. Saul, 432 F.Supp.3d 239, 251 (E.D.N.Y. 2020) (“[T]he fact that [a doctor] was a non-examining medical expert who only reviewed other physicians' findings in the record is sufficient grounds not to afford [that doctor's] opinion significant weight.” (emphasis added)). The ALJ's heavy reliance on Dr. Kwok's opinion that Plaintiff could perform medium (and even heavy) work was particularly improper here, where the ALJ assigned it far greater weight than the opinions of three consultative examiners, all of whom found that, to varying degrees, Plaintiff had exertional limitations that would not have supported Dr. Kwok's functional assessment. Most notably, Dr. Ravi, who conducted an orthopedic examination of Plaintiff, found him to have a “moderate” limitation in standing, walking, bending, pushing, pulling, lifting, and carrying due to bilateral knee pain and inflammatory arthritis. (R. at 392.) This assessment was incompatible with both Dr. Kwok's opinion and the ALJ's subsequent RFC determination (see Id. at 60-61) that Plaintiff could perform “medium work” requiring him to lift “50 pounds occasionally” and “20 pounds frequently, ” see, e.g., Patrick John B. v. Comm'r of Soc. Sec., No. 1:19-CV-1209 (JJM), 2020 WL 7767643, at *3-4 (W.D.N.Y. Dec. 30, 2020) (ALJ's determination that plaintiff had the RFC to fully perform the tasks necessary for medium work, including lifting 50 pounds at a time and 20 pounds frequently, was “inconsistent” with the medical opinion evidence that plaintiff had moderate limitations in lifting and carrying); Kociuba v. Comm'r of Soc. Sec., No. 5:16-CV-0064 (GTS), 2017 WL 2210511, at *8 (N.D.N.Y. May 19, 2017) (noting “that a moderate limitation in exertional activities such as lifting, carrying, pushing, and pulling is more consistent with an ability to perform light (rather than medium) work”).
Medium work is defined by the regulations as involving “lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c). In contrast, light work is defined as involving “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 416.967(b). Frequent means “occurring from one-third to two-thirds of the time.” SSR 83-10, 1983 WL 31251, *6 (1983).
Moreover, the reasoning that the ALJ gave to explain why he gave greater weight to the opinion of Dr. Kwok, a non-examining expert, than to the opinions of the examining experts does not withstand scrutiny. In his decision, the ALJ assumed that each consultant examiner had not been aware that, in August 2016, Plaintiff had reportedly “run on the beach in Honduras” and that he had reportedly been able to travel to that country more than once, to visit his family (R. at 23-24), implicitly suggesting that, had the examiners known these facts, their assessments would likely have been different. It was improper to use such logic to discredit the examiners' ability to develop well-supported opinions based on their examinations.
As an initial problem, without following-up with each examiner, there was no way for the ALJ to know whether he or she had, in fact, been unaware of Plaintiff's travel and his one-time reported run on the beach in Honduras, back in August 2016. Secondly, the Record does not contain enough detail about Plaintiff's travel history to warrant the significant reliance the ALJ placed on it in discounting the examiners' assessments. Although Plaintiff testified at the Hearing that he did not use a cane when he went through the airport in 2016 (id. at 51), and that, in later travels, he did not use a wheelchair (id. at 56), he further testified that, even in 2016, he had experienced “some problems” moving through the airport (id. at 51), and that he generally walked with a “limp[]” (id. at 56). Further, the Record reflects nothing about how far Plaintiff was able to walk in airports before needing to sit or take a break, whether he was able to carry his luggage or lift it overhead, how heavy his luggage was, or whether he typically received any assistance from airport personnel. Given the paucity of evidence on these points, it was error for the ALJ to jump to the conclusion, as he seemingly did, that, just because Plaintiff had reportedly been able to travel once a year to see family (see Id. at 55-56) - and regardless of the opinions of the doctors who examined him - he would necessarily have been able to perform medium work with no standing or sitting limitations.
Finally, the ALJ's repeated citation to Plaintiff's report that he had been able to run on the beach at one point in 2016 - and the ALJ's discrediting of the opinions of Drs. Ravi and Aguiar because they failed to cite that report - suggests an over-reliance on an event that may have occurred fully two years before those doctors performed their examinations. When evaluating Plaintiff's claims during the relevant period of review (running from January 15, 2015 through June 30, 2020), the ALJ was obligated to consider whether Plaintiff had been under a “disability” during any continuous 12-month period. This means that, even if Plaintiff's reported activities in August 2016 would not have supported a finding of disability at that time, those activities would not be outcome determinative for a later 12-month period, such as one that might have included Dr. Ravi's and Dr. Augiar's findings in May 2018 that Plaintiff was then using a “medically-necessary cane” for balance and weight-bearing activities (id. at 391-92, 396-97), had an antalgic gait (id. at 391-92), was unable to squat fully (id. at 391, 397), and had limited range of motion in his knees (id. at 391-92). The ALJ's heavy-handed reliance on one treatment record from August 2016 and on Plaintiff's brief testimony about his occasional past travel to Honduras did not justify the near complete discounting of Dr. Ravi's and Dr. Augiar's examination-based opinions, and the corresponding elevation of the opinion of the non-examiner, Dr. Kwok.
Although not discussed by the ALJ, this Court notes that the Record does contain one treatment note, dated in August 2017, indicating that Plaintiff reportedly rode horses when he visited Honduras that same summer. (R. at 530.) Just as this Court cannot assume that Drs. Ravi and Augiar were unaware that Plaintiff had been able to run on the beach in August 2016, it likewise cannot assume that these consultant examiners were unaware of this later activity. Nor can this Court assume that awareness (or unawareness) of this later activity would have materially affected either examiner's findings about Plaintiff's functional limitations as of May 2018.
Accordingly, this Court recommends that, on remand, the ALJ be further instructed to afford the proper weight to the medical opinion evidence in the Record. If, on remand, the ALJ continues to be inclined to discount the opinions of the consultative examiners, then he should provide well-supported, non-arbitrary reasons for that determination.
B. The ALJ's Error Concerning Plaintiff's Non-Exertional Limitations
Finally, the ALJ erred by failing to adhere to the treating physician rule with respect to Dr. Cindrich's opinion regarding Plaintiff's non-exertional limitations. There is no dispute that Dr. Cindrich qualified as Plaintiff's “treating physician” under the rule (see Pl. Reply Mem., at 17; Def. Mem., at 12, 19), but, despite this, the ALJ afforded no weight to Dr. Cindrich's October 2018 opinion that Plaintiff had “some cognitive dysfunction” and, more specifically, an inability to concentrate (see R. at 566-67).
As set out above (see Discussion, supra, at Section I(E)), an ALJ is required to give controlling weight to a treating physician's opinion, or else give “good reasons” for the weight that is given, 20 C.F.R. § 416.927(c)(2); see Ross v. Colvin, No. 6:16-CV-06618 (MAT), 2018 WL 947267, at *5 (W.D.N.Y. Feb. 20, 2018) (“A corollary to the treating physician rule is the so-called ‘good reasons rule,' which provides that the SSA ‘will give good reasons in [its] notice of determination or decision for the weight [it] gives [claimant's] treating source's opinion.”). Failure to “give good reasons” is grounds for remand. Halloran, 362 F.3d at 33.
Here, the supposed “good reasons” the ALJ gave for discounting Dr. Cindrich's opinion about Plaintiff's limitation in the ability to concentrate was that, in the ALJ's view: (1) it was “likely” that Plaintiff was able to concentrate because he had performed certain tasks when traveling, including packing luggage, coordinating paperwork, securing tickets, and filling out customs paperwork; and (2) “the evidence as a whole d[id] not support” that Plaintiff had difficulty concentrating. (R. at 24.) As explained below, neither of these explanations offered by the ALJ was sufficient to “fulfill [his] obligation under the treating physician rule.” Crutch v. Colvin, No. 14-CV-3201 (SLT), 2017 WL 3086606, at *8 (E.D.N.Y. July 19, 2017).
First, as to the ALJ's explanation that it was “likely” that Plaintiff would be able to concentrate based on the tasks that he had presumably completed when traveling, this conclusion had no basis in the objective medical evidence and appears to have stemmed, entirely, from the ALJ's own lay beliefs. Even assuming that Plaintiff could perform the travel-related tasks that the ALJ identified as requiring concentration (i.e., packing of luggage, coordination of paperwork, and itinerary and tickets, filling out customs paperwork), there is no evidence in the Record to suggest that his ability to perform such discrete tasks meant that, despite his reported pain, he would have had the ability to maintain the concentration and attention necessary to perform work at a consistent pace throughout a full work day and work week. See McDonald v. Berryhill, No. 16-CV-926-FPG, 2017 WL 5712304, at *3 (W.D.N.Y. Nov. 28, 2017) (noting that if a claimant was “off task” for 20% of the typical work day, it would mean that her “symptoms [were] likely to be severe enough to interfere with the attention and concentration needed to perform even simple work tasks”). Rather, the ALJ appears simply to have assumed that, based on his ability to travel, Plaintiff would have no difficulties remaining on task as necessary to maintain gainful employment, and such an assumption cannot constitute a “good reason” under the regulations to discount the contrary opinion of Plaintiff's treating physician. See Quinto v. Berryhill, No. 3:17-cv-00024 (JCH), 2017 WL 6017931, at *14 (D. Conn. Dec. 1, 2017) (where ALJ “substitute[ed] his own lay opinion for that of the medical source, ” ALJ's stated reasons for discounting the treating physician's opinion could not be considered “good reasons”); cf. Plaza v. Comm'r of Soc. Sec., No. 19cv3853 (DF), 2020 WL 6135716, at *22 (S.D.N.Y. Oct. 16, 2020) (“[T]he ALJ's reliance on his own interpretation of the medical evidence as the basis for discounting [the treating physician's] opinions did not constitute a ‘good reason' as required by the regulations.”).
Second, to the extent the ALJ also opined that Dr. Cindrich's opinion about Plaintiff's concentration limitation was not supported by the “evidence as a whole, ” the ALJ's observation appears to have been a mischaracterization, or, at the very least, an over-simplification, of the medical evidence. Dr. Cindrich recorded in May 2016 that Plaintiff admittedly sometimes forgot “whether or not he took [his] medications” (R. at 429), and Plaintiff explained in the Function Report to the SSA that his “pain and illness” had made it difficult for him to “pay attention” and “remember[] things” (id. at 218-19). Plaintiff's pain, which he alleged served as the root for his concentration issues, was well documented throughout the longitudinal treatment record. (See Id. at 295, 373-75, 433-62, 533-34, 546-47, 552.) It is well settled that an ALJ's “good reason” to discredit a treating physician's opinion cannot rest on mischaracterized or “cherry-picked” evidence. See Quinto, 2017 WL 6017931, at *14; see also Vasquez v. Comm'r of Soc. Sec., No. 14cv6900 (JCF), 2015 WL 4562978, at *17 (S.D.N.Y. July 21, 2015) (an ALJ may not pick and choose evidence that supports her conclusions).
Thus, in line with applicable precedent, this Court finds that both explanations offered by the ALJ to discount Dr. Cindrich's opinion about Plaintiff's non-exertional limitations were inadequate under the regulations, and that this inadequacy also warrants remand. See Halloran, 362 F.3d at 33.
Accordingly, on remand, I recommend that the ALJ be directed (a) to reconsider the weight that should be assigned to the medical opinion of Dr. Cindrich, in accordance with the factors set out in the applicable regulation (see Discussion, supra, at Section I(E)), and (b) if necessary, to state good reasons for any decision to assign less than controlling weight to Dr. Cindrich's assessment of Plaintiff's non-exertional limitations. Finally, to the extent the ALJ may alter his initial view of Plaintiff's RFC, the ALJ should be directed, as necessary, to recall the VE for additional testimony, to aid in the ALJ's determination of whether Plaintiff's reassessed RFC would preclude employment for Plaintiff during the relevant periods.
CONCLUSION
For all of the foregoing reasons, I respectfully recommend that Plaintiff's motion for judgment on the pleadings (Dkt. 22) be granted, and that Defendant's cross-motion for judgment on the pleadings (Dkt. 25) be denied.
I further recommend that, upon remand, the ALJ be directed:
(1) to develop the Record by seeking any medical records, from within the relevant periods, relating to any evaluation, diagnostic testing, surgery, or other treatment that Plaintiff may have received regarding his peripheral vascular disease.
(2) to reweigh the medical opinion evidence in accordance with both the regulations and treating physician rule;
(3) to set out good reasons for any continued discounting of Dr. Cindrich's opinion regarding Plaintiff's non-exertional limitations; and
(4) after developing the Record and reweighing the opinion evidence, to reconsider Plaintiff's RFC, and, if necessary, to recall the VE for additional testimony to evaluate whether Plaintiff's reassessed RFC would preclude employment for Plaintiff for any continuous 12 months during the relevant periods.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6 (allowing three (3) additional days for service by mail). Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Edgardo Ramos, U.S.D.J., United States Courthouse, 40 Foley Square, Room 410, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Ramos. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).