Bogner v. Comm'r of Soc. Sec.

Full title: NORBERT J BOGNER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Court: United States District Court, S.D. New York

Date published: Jul 18, 2022

20 Civ. 10724 (NSR)(JCM) (S.D.N.Y. Jul. 18, 2022)

Opinion

20 Civ. 10724 (NSR)(JCM)

07-18-2022

NORBERT J BOGNER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Honorable Nelson S. Roman, United States District Judge:

REPORT AND RECOMMENDATION

Honorable Nelson S. Roman, United States District Judge:

Plaintiff Norbert J. Bogner (“Plaintiff”) commenced this action on December 18, 2020, pursuant to 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security (the “Commissioner”), which denied Plaintiff's Title II application for Disability Insurance Benefits (“DIB”). (Docket No. 1). Before the Court are: (1) Plaintiff's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, (Docket No. 20), accompanied by a memorandum of law (“Pl. Br.”), (Docket No. 21); (2) the Commissioner's cross-motion for judgment on the pleadings and in opposition to Plaintiff's Motion, (Docket No. 26), accompanied by a memorandum of law (“Comm'r Br.”), (Docket No. 27); and (3) Plaintiff's reply memorandum of law (“Pl. Reply Br.”), (Docket No. 28). For the reasons set forth below, I respectfully recommend granting the Plaintiff's motion and denying the Commissioner's crossmotion, and remanding the case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Report and Recommendation.

I. BACKGROUND

Plaintiff applied for DIB on August 28, 2017, (R. 77, 160-68), alleging a disability onset date of March 30, 2016, due to arthritis, “bone on bone in hip,” previous injury to both ankles, high blood pressure and an undiagnosed heart issue. (R. 78-79, 162). Plaintiff's application was initially denied on March 12, 2018, (R. 88-99), after which he requested a hearing on April 20, 2018, (R. 125-26). Plaintiff testified at the hearing on September 23, 2019, before Administrative Law Judge (“ALJ”) Martha Bower. (R. 45-76). The ALJ found that Plaintiff had a severe impairment, left hip osteoarthritis, but denied Plaintiff's claim on November 13, 2019. (R. 21-43). Plaintiff requested review by the Appeals Council, which was denied on October 21, 2020, (R. 1-7), making the ALJ's decision final.

A. Relevant Medical Evidence

The Court adopts Plaintiff's recitation of the relevant evidence, also adopted by the Commissioner. (Comm'r Br. at 2-3). This summary is, therefore, taken in large part from Plaintiff's Statement of Facts.

1. Mount Sinai St. Luke's Hospital

Plaintiff has been a patient at the Orthopedic and Psychiatric clinics of Mount Sinai St. Luke's Hospital. On July 7, 2016, orthopedic surgeon Dennis Fabian, M.D. (“Dr. Fabian”) evaluated Plaintiff for intermittent left hip pain following injuries to both ankles. (R. 305). Dr. Fabian found decreased range of motion in the left hip, and X-rays of the left hip revealed severe end-stage osteoarthritis. (Id.). Dr. Fabian diagnosed left hip osteoarthritis and prescribed diclofenac. (Id.). On November 10, 2016, Plaintiff stated that he could not afford the diclofenac, but was taking over the counter medicine with adequate pain relief. (R. 303). In addition to ongoing hip pain, he also reported ankle stiffness for several months. (Id.). Dr. Fabian noted decreased range of motion in the left hip and diagnosed right ankle stiffness with a history of right calcaneus ORIF (open reduction internal fixation surgery), and referred Plaintiff to physical therapy. (Id.).

On February 21, 2017, orthopedist David Forsh, M.D. (“Dr. Forsh”) examined Plaintiff, finding decreased range of right ankle motion, stiffness, a positive FADIR¹ sign, and minimal internal rotation. (R. 301). Dr. Forsh diagnosed left hip osteoarthritis. (Id.). On July 25, 2017, Plaintiff followed up with Dr. Forsh and stated he had good and bad days. (R. 299). Dr. Forsh noted use of a cane, a limping gait, right greater than left lower limb discrepancy (“LLD”), and decreased range of motion with pain in the left hip. (Id.). On October 11, 2017, X-rays of the left hip revealed severe primary osteoarthritis with markedly severe narrowing of the left hip joint with loss of the superior cartilaginous thickness and concentric osteophyte formation, subchondral sclerosis and small subchondral cysts, progressive degenerative changes from prior imaging, a stable bone island in the ileum, and a healing traumatic fracture of the left femoral shaft with slight deformity. (R. 292).

1 “FADIR test a.k.a. Flexion, Adduction, Internal Rotation test refers to a clinical examination test performed to assess for hip femoroacetabular impingement.” FADIR test, RADIOPAEDIA, https://radiopaedia.org/articles/fadir-test?lang=us (last visited July 15, 2022).

Pain specialist Steven Halle, M.D. (“Dr. Halle”) evaluated Plaintiff on November 15, 2017, for chronic, worsening left hip pain that increased with walking and a sharp pain that radiated down to the thigh. (R. 296). Dr. Halle found an antalgic gait, left hip tenderness and decreased range of motion in the hip. (Id.). Dr. Halle diagnosed left hip osteoarthritis. (Id.). He recommended a steroid injection and continued physical therapy. (R. 297).

On December 19, 2017, psychiatrist Susan Kahane-Pierre, M.D. (“Dr. Kahane-Pierre”) evaluated Plaintiff for a history of depression and anxiety, complicated by alcohol and cocaine use. (R. 852). Plaintiff reported symptoms of anxiety and depression, difficulty feeling positive after the death of his niece and a friend, stress, impaired concentration and chronic pain in his shoulders, hips, and ankles. (Id.). Plaintiff was currently participating in a substance use prevention program and had reduced his use of cocaine. (R. 852-53). A mental status examination revealed a worried mood and a tearful affect with linear and circumstantial thought process when discussing the deaths of his niece and friend. (R. 857). Dr. Kahane-Pierre diagnosed grief reaction with prolonged bereavement and adjustment disorder with anxiety. (R. 859). Plaintiff was referred for individual therapy. (R. 858).

Psychologist Leora Heckleman, Ph.D. (“Dr. Heckleman”) and social worker² Jillian Scheer (“Scheer”) saw Plaintiff for therapy on December 26, 2017. (R. 848). Plaintiff seemed anxious about therapy. (Id.). A mental status examination revealed inconsistent eye contact, and verbose speech with tangential, logical, and verbose thought processes. (R. 849). On January 4, 2018, Plaintiff reported frequent low moods to Dr. Kahane-Pierre and said that he stayed home most of the time. (R. 845). A mental status examination revealed verbose speech, a worried mood with tearful affect at times, and logical but circumstantial thinking. (R. 846). Dr. Kahane-Pierre prescribed Wellbutrin. (R. 847).

2 Social workers are not considered acceptable medical sources even under the new regulations. Rivas v. Berryhill, No. 1:17-CV-05143 (ALC), 2018 WL 4666076, at *10, n.6 (S.D.N.Y. Sept. 27, 2018) (citing 20 C.F.R. § 404.1502(a)). “Nevertheless, an ALJ should consider evidence from ‘other sources,' such as social workers, on important issues like the severity of an impairment and any related functional effects.” Susan B. v. Comm'r of Soc. Sec., No. 1:20-CV-00546(EAW), 2021 WL 3266231, at *4 (W.D.N.Y. July 30, 2021).

On January 18, 2018, Plaintiff had therapy with Scheer. (R. 843). He admitted using alcohol and cocaine, attributing his use to his ankle injuries and that he was grieving over the deaths of his niece and friend. (Id.). A mental status examination revealed inconsistent eye contact, a somewhat unkempt appearance, verbose speech, and tangential, logical and verbose thinking. (R. 843-44). On January 19, 2018, Plaintiff reported decreased enjoyment, worry, insomnia and poor concentration. (R. 840). Dr. Kahane-Pierre observed that Plaintiff walked with a cane and antalgic gait, and diagnosed major depressive disorder (single episode, moderate), and prescribed Seroquel. (R. 841). In a January 19, 2018 letter, Dr. Kahane-Pierre reported treating Plaintiff for major depressive disorder (single episode, moderate), and described symptoms of impaired concentration, low mood, insomnia, decreased enjoyment, and worry that significantly impaired his ability to work, finding that his psychiatric symptoms, combined with his medical problems, made him likely to be unable to work for at least 12 months. (R. 324).

On January 31, 2018, Plaintiff reported feeling increasingly depressed and having passive suicidal ideation, and admitted to drinking alcohol earlier in the day. (R. 836). Scheer noted that he appeared younger, was cooperative, maintained inconsistent eye contact, and was slightly unkempt; his prior therapy visit findings were unchanged. (Id.). Subsequent progress notes dated through July 31, 2019 document Plaintiff's individual therapy. (R. 563-66, 574-77, 586-89, 594602, 608-10, 624-31, 637-40, 650-52, 658-61, 663-65, 672-74, 679-80, 682-87, 691-93, 702-06, 721-25, 741-43, 765-71, 780-82, 784-86, 790-91, 802- 03, 810-11, 815-16, 824-25). Mental status examinations during this period noted he walked with a cane and a slow/antalgic gait. The psychiatric clinical findings included an unkempt, disheveled, and/or malodorous presentation; verbose, rapid, pressured, loud and/or loquacious speech; tangential, circumstantial, and/or verbose thinking; restless motor activity; psychomotor agitation; hyperactive motor activity; psychomotor slowing; elated, down, sad, irritable, dysphoric, anxious, and/or subdued moods; reactive, bright, elevated, tearful, and/or incongruent affect; poor judgment/poor insight/illness awareness; fidgeting; and thought content focused on fears, and being helpless and incapacitated. (R. 565, 576-77, 588-89, 596-97, 601-02, 610, 626, 631, 639-40, 652, 660, 664, 674, 680, 683, 686, 692, 703, 706, 722, 725, 742-43, 766, 768-69, 771, 781-82, 785-86, 791, 803, 810-11, 816, 825).

On February 1, 2018, Plaintiff reported frequent low mood and anxiety, and felt embarrassed about walking with a cane, did not feel like leaving his house, tended to minimize his symptoms when speaking with others, and admitted drinking wine. (R. 832-33). Dr. Kahane-Pierre observed that Plaintiff walked with a cane and had an antalgic gait, an unshaven appearance, verbose speech, low mood with a congruent and reactive affect, and tangential thinking at times. (R. 833).

In a Treating Physician Wellness Plan Report dated February 1, 2018, Dr. Kahane-Pierre reported treating Plaintiff for diagnoses of acute stress reaction and bereavement and major depressive disorder with anxious features. (R. 532). Relevant clinical findings included unkempt dress; ambulation with a cane and a slow gait; inconsistent eye contact; verbose speech; a down mood with congruent and reactive affect; verbose, overly detailed, and tangential thought processes; and thoughts of feeling stuck. (Id.). Despite compliance with treatment, including bupropion and quetiapine, there was no significant response in Plaintiff's depressive symptoms. (Id.). Plaintiff's symptoms were impaired concentration, low mood, insomnia, decreased enjoyment, and worrying, which significantly impaired his ability to work, as well as irritability, passive suicidal ideation, increased crying, and minimization of symptoms at times. (R. 533). Dr. Kahane-Pierre opined that Plaintiff's diagnoses/condition had not resolved or stabilized, and he was unable to work for at least 12 months. (Id.).

On February 13, 2018, Plaintiff reported that he felt somewhat more alert on bupropion and had no significant changes in his mood, but had difficulty sleeping, passive suicidal ideation, feelings of sadness most of the time, increased crying and irritability, and difficulty making decisions. (R. 827). Dr. Kahane-Pierre noted verbose and relatively fast speech, low mood, and congruent and reactive affect, finding Plaintiff digressive and difficult to follow at times. (Id.). Dr. Kahane-Pierre refilled Wellbutrin and Seroquel. (R. 828).

On March 2, 2018, Dr. Kahane-Pierre administered the MoCA³ cognitive assessment resulting in a score of 22 out of 30, with impairments found on recall, repeating, fluency, cube copy, and abstraction. (R. 821). A mental status examination revealed unchanged findings from Plaintiff's previous treatment, (R. 822), and Dr. Kahane-Pierre prescribed trazodone, (R. 824).

3 Montreal Cognitive Assessment (MoCA) is defined as “a brief screening tool designed to assist clinicians in identifying mild cognitive impairment (MCI) and possible early dementia.” Montreal Cognitive Assessment (MoCA), APA DICTIONARY OF PSYCHOLOGY, https://dictionary.apa.org/montreal-cognitive-assessment (last visited on July 15, 2022).

Orthopedic surgeon Carl Cirino, M.D. (“Dr. Cirino”) evaluated Plaintiff on March 6, 2018, for his severe hip osteoarthritis. (R. 818). Plaintiff's pain so severely limited his ability to walk that he expressed interest in a total hip arthroplasty (“THA”). (Id.). Dr. Cirino observed that Plaintiff used a cane for ambulation, (R. 818-19), while the physical examination showed diffuse tenderness to palpation and decreased range of motion in the left hip and decreased range of right ankle motion, (R. 819). X-rays of the left hip revealed severe osteoarthritis. Dr. Cirino diagnosed osteoarthritis and ordered laboratory tests. (Id.).

Dr. Cirino completed a report at the request of the Social Security Administration (“SSA”) dated March 8, 2018. (R. 318). He examined Plaintiff on March 6, 2018, diagnosing left hip arthritis and bilateral ankle arthritis. (Id.). Plaintiff's primary symptoms were pain and decreased range of motion, and he required a total hip replacement. (Id.). Dr. Cirino noted that Plaintiff's hip condition is expected to last “until total hip replacement is performed,” (R. 318), and, although Plaintiff “was not ready for surgery” previously, “he is interested in THA,” (R. 818). Dr. Cirino stated that Plaintiff ambulated with an antalgic gait and used a cane to walk. (Id.). Plaintiff also had decreased range of motion in the shoulders, elbows, wrists, hips, cervical spine, lumbar spine and ankles. (R. 320-21). Dr. Cirino opined that in an 8-hour workday, Plaintiff could stand and/or walk “less than 2 hours” but was found to have no limitations in sitting. (R. 323).

When seen by Dr. Kahane-Pierre on March 16, 2018, Plaintiff's symptoms included mood fluctuations with hypomanic symptoms for 4-5 days followed by major depressive symptoms as well as occasional passive suicidal ideation. (R. 812). A mental status examination revealed verbose and relatively fast speech, a low mood with congruent and reactive affect, and that Plaintiff “jump[ed] from topic to topic,” was digressive, and was difficult to follow at times. (R. 813). Dr. Kahane-Pierre diagnosed bipolar II disorder and grief reaction with prolonged bereavement, and refilled Wellbutrin and trazodone. (R. 814).

On March 29, 2018, Plaintiff reported continued periods of low mood, difficulty sleeping, feeling sad most of the time, increased crying and irritability, and difficulty making decisions, and he admitted using cocaine. (R. 807). A mental status examination revealed unchanged findings from Plaintiff's previous evaluation. (Id.). Dr. Kahane-Pierre refilled Plaintiff's medications. (R. 808). On April 12, 2018, Plaintiff returned to Dr. Kahane-Pierre with continued low mood and anxiety as well as chronic pain. (R. 799). There was no change in his mental status at that time. (Id.). Dr. Kahane-Pierre refilled Plaintiff's medications. (R. 800).

In a Psychiatric/Psychological Impairment Questionnaire summarizing Plaintiff's conditions dated April 13, 2018, Dr. Kahane-Pierre reported treating Plaintiff every 2 weeks since December 19, 2017, for bipolar II disorder and grief reaction with prolonged bereavement. (R. 326). Clinical signs and symptoms supporting the diagnoses and assessment included a depressed mood, persistent or generalized anxiety, an inappropriate affect, insomnia, crying, irritability, difficulty making decisions, digressive thoughts, difficulty thinking or concentrating, easy distractibility, and decreased energy. (R. 327). Plaintiff's most frequent and/or severe symptoms were distractibility, digressive thought process, insomnia, low mood and difficulty making decisions. (R. 328). Other clinical findings in support of the diagnoses included the results of the MoCA cognitive assessment, documenting impairments in recall, repeating, fluency, cube copy, and abstraction. (Id.). Plaintiff's symptoms of low mood, anxiety and insomnia worsened his physical pain, and Dr. Kahane-Pierre opined that, although she has not seen Plaintiff in a work setting due to his unemployment, he would likely decompensate or deteriorate at work because he tends to withdraw from situations and have exacerbations of symptoms when stressed. (Id.). Dr. Kahane-Pierre reported that Plaintiff is not a malingerer. (R. 326). She further opined that Plaintiff had “marked” limitations (defined as “symptoms constantly interfere with ability” meaning “more than 2/3 of an 8-hr. workday”) in his ability to: (1) carry out detailed instructions; (2) perform activities within a schedule and consistently be punctual; (3) sustain ordinary routine without supervision; (4) complete a workday without interruptions from psychological symptoms; and (5) perform at a consistent pace without rest periods of unreasonable length or frequency. (R. 329). Plaintiff also had “moderate-to-marked” limitations (defined as “symptoms frequently interfere with ability” or from “1/3-2/3 of an 8-hr. workday”) in his ability to: (i) remember locations and work-like procedures; (ii) understand and remember detailed instructions; (iii) maintain attention and concentration for extended periods; (iv) work in coordination with or near others without being distracted by them; (v) interact appropriately with the public; (vi) get along with co-workers or peers without distracting them; (vii) maintain socially appropriate behavior; and (viii) respond appropriately to workplace changes. (Id.). The symptoms and functional limitations detailed in the report were found to be consistent with the available clinical evidence. (R. 330). Dr. Kahane-Pierre estimated that Plaintiff would be absent from work more than three times per month as a result of his impairments or treatment. (Id.).

On April 17, 2018, orthopedist Alexander Hui, M.D. (“Dr. Hui”) evaluated the Plaintiff's left hip. (R. 796). Dr. Hui's examination noted decreased range of motion with pain. (Id.).

At a visit with Dr. Kahane-Pierre on April 27, 2018, Plaintiff stated that he spent a lot of time in bed and admitted to drinking two glasses of wine in the evenings to help him sleep. (R. 787). A mental status examination revealed that Plaintiff had verbose and relatively fast speech, a low mood, an inappropriately bright and reactive affect at times, and he jumped from topic to topic, was digressive, and “at times did not follow MD's line of thought.” (R. 788). Dr. Kahane-Pierre refilled Plaintiff's Wellbutrin and trazodone prescriptions. (R. 789).

Psychiatrist Stephen Glassberg, M.D. (“Dr. Glassberg”) saw Plaintiff at the clinic, on May 17, 2018. (R. 777). Plaintiff stated that he was still depressed despite some benefit from his medications. (Id.). A mental status examination revealed a mildly depressed mood, and Plaintiff walked with difficulty due to pain; no changes were made to Plaintiff's medications. (Id.). On July 19, 2018, Plaintiff returned to Dr. Glassberg, reporting continued depression, chronic pain, and difficulty mobilizing himself, and stated that he used cocaine once and drank wine twice per week since his last visit. (R. 762). A mental status examination revealed a sad and depressed mood and Dr. Glassberg refilled Wellbutrin and trazodone. (Id.).

During his August 21, 2018 visit with Dr. Kahane-Pierre, Plaintiff had difficulty staying on one topic during conversations, described feeling useless, and stated that chronic pain was ruining his sleep. (R. 745). Because of multiple joint pain, he was using marijuana for pain relief and to help him sleep. (Id.). A mental status examination revealed a mildly depressed mood, and circumstantial and tangential thought processes. (Id.). Dr. Kahane-Pierre refilled Plaintiff's medications. (R. 747). On September 5, 2018, Plaintiff reported no significant change in his mental condition. (R. 727-28). A mental status examination revealed fast and pressured speech, a mildly depressed mood, an inappropriately bright affect, and circumstantial, and at times tangential, thought processes. (R. 728). Dr. Kahane-Pierre diagnosed personality disorder and refilled Wellbutrin and trazodone. (R. 728-29). On October 15, 2018, Plaintiff reported feeling hyperactive and waking up after 3 hours despite use of trazodone. (R. 688). He admitted drinking wine the previous night but had decreased his substance use. (Id.). A mental status examination revealed loquacious speech and logical but circumstantial thinking. (Id.). On November 9, 2018, Plaintiff reported continued periods of low mood and sadness, and stated that he cried when alone. (R. 675-76). He reported decreased alcohol use and acknowledged that he was not taking his antidepressants every day. (R. 676). On November 28, 2018, a mental status examination by Dr. Kahane-Pierre revealed a disheveled appearance, restless motor activity, rapid and loquacious speech, subdued and anxious mood, a reactive and bright affect, and circumstantial thought processes. (R. 671).

On January 16, 2019, Plaintiff reported a tendency to isolate himself and expressed that he wanted to reduce his alcohol use. (R. 655). Dr. Kahane-Pierre observed that Plaintiff walked with a limp and antalgic gait and appeared uncomfortable when walking. (R. 655). A mental status examination was notable for loquacious speech, a mildly labile affect, circumstantial thought processes, and a belief in a “third eye.” (Id.). On February 12, 2019, Plaintiff described problems with procrastination, difficulty finding things at times, not liking how he felt, and continued chronic pain. (R. 647). Dr. Kahane-Pierre recommended a day program with physical therapy and activities. (Id.). A mental status examination revealed findings not significantly changed from Plaintiff's previous evaluation. (R. 648). Dr. Kahane-Pierre diagnosed schizotypal disorder with hypomanic traits and renewed Plaintiff's trazodone prescription. (R. 649).

On March 1, 2019, Plaintiff stated he continued to have periods of feeling low, lasting longer than previously. (R. 634). The PHQ-9⁴, the Hamilton depression scale, and the Beck depression scale revealed scores suggesting clinical depression. (Id.). A mental status examination revealed loquacious speech, a less labile affect, circumstantial thought process, and a recent out of body experiences. (R. 635). Dr. Kahane-Pierre restarted bupropion and referred Plaintiff to a day program. (R. 636). On March 22, 2019, Plaintiff stated that he continued to have days when he felt down, despite sobriety from alcohol and cocaine, although he was feeling a little better with bupropion. (R. 617). A mental status examination revealed an uncomfortable appearance when walking, loquacious speech, a less labile affect, and circumstantial thought process. (R. 617).

4 The 9-question Patient Health Questionnaire (PHQ-9) is a self-administered diagnostic tool “for assessing depression.” Patient Health Questionnaire (PHQ-9 & PHQ-2), AMERICAN PSYCHOLOGICAL ASSOCIATION, https://www.apa.org/pi/about/publications/caregivers/practice-settings/assessment/tools/patient-health (last visited July 15, 2022).

At a follow-up with Dr. Fabian on April 2, 2019, Plaintiff reported significant, constant left hip pain. (R. 613). He described an inability to walk more than one block without significant pain, and reported pain when walking upstairs, stating that physical therapy had not helped. (Id.). An examination of the left hip revealed decreased range of motion, a positive FADIR test, and an antalgic gait favoring the right leg. (Id.). Dr. Fabian ordered imaging of the left hip. (Id.).

On April 16, 2019, Plaintiff reported to Dr. Kahane-Pierre that he was not sure bupropion was helping, that he continued to abstain from using substances, and that his hip pain had worsened. (R. 603). Dr. Kahane-Pierre observed that Plaintiff ambulated with a limp and a slow antalgic gait. (R. 604). A mental status examination also revealed essentially unchanged findings from his previous visit. (Id.). On May 30, 2019, Plaintiff said that he felt down, and admitted to drinking wine but wanted to stop. (R. 580). There was no significant change in Plaintiff's mental status. (R. 581). At a visit with Dr. Kahane-Pierre on July 24, 2019, Plaintiff stated that he had not used cocaine for the past 6 to 8 weeks, but he drank a glass of wine occasionally and continued to struggle with chronic pain and physical limitations. (R. 567). A mental status examination revealed an uncomfortable appearance when walking, loquacious speech, a less labile affect, and circumstantial thought process. (Id.).

In a Psychiatric/Psychological Impairment Questionnaire dated July 28, 2019, Dr. Kahane-Pierre reported treating Plaintiff since December 19, 2017, for major depressive disorder (recurrent episode, moderate), personality disorder (schizotypal with hypomanic traits), and grief reaction with prolonged bereavement. (R. 511). Clinical findings included a depressed mood, inappropriate affect, circumstantial thought process, easy distractibility, anhedonia/pervasive loss of interests, decreased energy, deeply ingrained, maladaptive patterns of behavior, pressured speech, social withdrawal or isolation, and insomnia. (R. 512). Plaintiff's primary symptoms were depressed mood with occasional weeping, loss of interest in hobbies, frequent insomnia, low energy, and circumstantial thought process, and he had good and bad days. (R. 513). Dr. Kahane-Pierre found that Plaintiff is not a malingerer, (R. 512), and stated that the symptoms and limitations detailed in the questionnaire were present since March 31, 2016, (R. 515). Dr. Kahane-Pierre opined that Plaintiff had “marked” limitations in his ability to: (1) maintain attention and concentration for extended periods; (2) perform activities within a schedule and consistently be punctual; (3) work in coordination with or near others without being distracted by them; (4) complete a workday without interruptions from psychological symptoms; (5) perform at a consistent pace without rest periods of unreasonable length or frequency; (6) get along with co-workers or peers without distracting them; (7) maintain socially appropriate behavior; and (8) travel to unfamiliar places or use public transportation. (R. 514). Plaintiff also had “moderate-to-marked” limitations in his ability to: (1) understand, remember and carry out detailed instructions; (2) interact appropriately with the public; (3) accept instructions and respond appropriately to criticism from supervisors; (4) respond appropriately to workplace changes; (5) set realistic goals; and (6) make plans independently. (Id.). The symptoms and functional limitations detailed in the report were found to be consistent with the available clinical evidence. (Id.). Dr. Kahane-Pierre estimated that Plaintiff would be absent from work more than three times per month as a result of his impairments or treatment. (Id.).

In a Medical Request for Home Care, dated July 31, 2019, Dr. Kahane-Pierre and Elizabeth Jones, N.P. (“Nurse Jones”)⁵ diagnosed chronic essential hypertension, primary osteoarthritis of the left hip, alcoholic cirrhosis, steatosis of the liver, and major depressive disorder. (R. 551). They certified that Plaintiff required home care services to assist with personal care and/or light housekeeping because he had impaired gait, secondary to severe left hip arthritis and was unable to stand or ambulate for long periods of time. (R. 552). It was noted that Plaintiff currently used a cane, wheelchair, and bath seat. (Id.). In a report dated September 18, 2019, Dr. Kahane-Pierre opined that Plaintiff's drug and/or alcohol use was not material to his disability. (R. 559). She explained that Plaintiff was not currently using drugs or alcohol and remained disabled. (Id.). Dr. Kahane-Pierre further noted that Plaintiff remained disabled during periods of abstinence as a result of his psychiatric and medical conditions. (Id.).

5 The regulations were amended in 2017 to add advanced practice registered nurses (a category that includes nurse practitioners) to the list of acceptable medical sources, which applies to Plaintiff's claims as they were filed after March 27, 2017. Cherry v. Comm'r of Soc. Sec. Admin., 813 Fed.Appx. 658, 661 (2d Cir. 2020) (citing 20 C.F.R. § 404.1502(a)(7)).

2. Examining Psychologist James Ellis, Ph.D.

On September 12, 2019, examining psychologist James Ellis, Ph.D. (“Dr. Ellis”) conducted a clinical interview and reviewed Plaintiff's medical records. (R. 543). Plaintiff reported symptoms of periodic elevated mood and high energy with feelings of euphoria, decreased need for sleep, racing thoughts, and increased goal-oriented activity, as well as involvement in activities with high potential for painful consequences, including substance use. (R. 544). Other symptoms were episodic depressed moods with loss of interests, thoughts of death, difficulty sleeping, low energy, and low self-esteem. (Id.). Plaintiff had completed inpatient rehabilitation and was currently attending an outpatient substance abuse program. (Id.). A mental status examination revealed pressured speech, flight of ideas and circumstantial thought processes, thought derailment, distractibility, a euphoric mood with congruent affect, chronic thoughts of death, and impaired impulse control, attention and concentration. (R. 54445). Dr. Ellis diagnosed bipolar I disorder (moderate, current episode manic), cocaine use disorder, and alcohol use disorder. (R. 546).

In a Psychiatric/Psychological Impairment Questionnaire, Dr. Ellis reaffirmed Plaintiff's diagnoses. (R. 536). Clinical signs and symptoms supporting the diagnoses and assessment included abnormal affect, manic syndrome, grandiose thoughts, suicidal ideation, easy distractibility, flight of ideas, impulsive or damaging behavior, pressured speech, loosening of associations, and decreased need for sleep. (R. 537). Plaintiff's most frequent and/or severe symptoms were manic syndrome and impulsive and damaging behavior. (R. 538). Other clinical findings supporting the diagnoses and assessment were documented in Plaintiff's medical records. (Id.). Dr. Ellis noted that Plaintiff is not a malingerer, (R. 537), and his symptoms and limitations detailed in the questionnaire were present since March 31, 2016, (R. 540). Dr. Ellis opined that Plaintiff had “marked limitations” in his ability to: (1) carry out simple, one-to-two step instructions; (2) carry out detailed instructions; (3) maintain attention and concentration for extended periods; (4) perform activities within a schedule and consistently be punctual; (5) sustain ordinary routine without supervision; (6) work in coordination with or near others without being distracted by them; (7) make simple work-related decisions; (8) complete a workday without interruptions from psychological symptoms; (9) perform at a consistent pace without rest periods of unreasonable length or frequency; (10) interact appropriately with the public; (11) ask simple questions or request assistance; (12) get along with co-workers or peers without distracting them; (13) respond appropriately to workplace changes; (14) be aware of hazards and take appropriate precautions; (15) travel to unfamiliar places or use public transportation; (16) set realistic goals; and (17) make plans independently. (R. 539). The symptoms and functional limitations detailed in the report were found to be consistent with the available clinical evidence. (R. 540). Dr. Ellis estimated that Plaintiff would be absent from work more than three times per month as a result of his impairments or treatment. (Id.).

3. Consultative Examiner Aurelio Salon, M.D.

On November 16, 2017, consultative examiner Dr. Aurelio Salon, M.D. (“Dr. Salon”) evaluated Plaintiff for the SSA. (R. 306). Plaintiff reported osteoarthritis in the left hip and pain in his hands, legs, feet and back. (Id.). A physical exam revealed that he used a cane and he declined to walk on heels or toes, or to squat. (R. 307-08). Dr. Salon diagnosed hypertension, history of osteoarthritis of the left hip, history of back pain, history of arthralgias, status post fractured ankles with remote surgery of the right ankle, and history of substance abuse. (R. 308). Dr. Salon opined that Plaintiff had no restrictions in his ability to sit or stand, climb, push, pull, or carry heavy objects. (R. 308-09).

4. Consultative Psychologist Gladys Frankel, Ph.D.

Consultative psychologist Gladys Frankel, Ph.D. (“Dr. Frankel”) evaluated Plaintiff on February 8, 2018, at the request of the SSA. (R. 313). Plaintiff was accompanied by his friend and roommate, “who helped him as he has a cane.” (Id.). Plaintiff reported outpatient treatment for depression since December 2017. (Id.). Plaintiff's symptoms included difficulty sleeping, loss of appetite, dysphoric moods, loss of interest, fatigue, loss of energy, difficulty concentrating, social withdrawal, difficulty getting out of bed some days, anxiety with excessive apprehension, worrying, and irritability, and difficulties with receptive language, organization and planning. (R. 314). Plaintiff admitted to using alcohol and cocaine, but said he last used cocaine approximately 2 months prior to the evaluation and had decreased his alcohol use. (Id.). Dr. Frankel observed that Plaintiff ambulated with a cane. (R. 315). A mental status examination revealed a mildly dysphoric affect, an erratic and overwhelmed mood, impaired concentration, below average intellectual function, limited general fund of information, and fair to poor insight and judgment. (R. 315-16). Dr. Frankel diagnosed unspecified depressive disorder, complicated bereavement disorder, unspecified anxiety disorder, alcohol use disorder, reportedly in remission, and cocaine use disorder. (R. 317). Dr. Frankel opined that Plaintiff had moderate limitations in sustaining an ordinary routine and in regularly attending work, and mild limitations in his ability to sustain concentration and perform a task at a consistent pace, and maintain personal hygiene and appropriate attire. (R. 316).

5. Disability Determination Service Consultants

On February 16, 2018, S. Bhutwala, Ph.D. (“Dr. Bhutwala”) and A. Sinha, M.D. (“Dr. Sinha”) reviewed Plaintiff's record. (R. 78-85). Dr. Bhutwala noted that Plaintiff had severe “Substance Addiction Disorders (Drugs),” but assessed no mental medically determinable impairments. (R.82). Dr. Sinha assessed Plaintiff's physical residual functional capacity, finding that he could occasionally lift/carry twenty pounds; frequently lift/carry ten pounds; stand and sit for a total of six hours each in an eight-hour workday; and occasionally climb ramps/stairs, climb ladders/ropes/scaffolds, balance, stoop, kneel, crouch and crawl. (R. 83-85).

B. Relevant Non-Medical Evidence

Plaintiff testified that he has been unable to work because of pain in both ankles, right more severe than left, resulting from a fall, as well as due to worsening back and hip pain. (R. 54-55, 61). He has difficulty walking, climbing stairs, stepping on his right foot, bending down, and picking things up. (R. 53-55, 62). Plaintiff has also been unable to work because of depression. (R. 57). He cries without reason, has frequent down moods, and continues to grieve his niece's death. (R. 58, 67). He has little contact with others and spends most of his time alone. (R. 67-69). Plaintiff has difficulty concentrating and completing tasks. (R. 70-71). He can only walk for a block and a half at a time with his cane and can stand for 30-60 minutes with his cane before he must sit down. (R. 62). He can lift but not carry 10 pounds. (R. 63). Plaintiff lives in an apartment with a roommate and mostly travels via Access-A-Ride or takes the bus because he has difficulty with subway station stairs. (R. 53). In a typical week, he spends at least 3 to 4 days in bed because of pain for 3 to 4 hours each time. (R. 60-61). Plaintiff's roommate helps him get dressed, carries their groceries, and does the cleaning. (R. 63-64). Plaintiff uses a chair in the shower and sometimes his roommate helps him in the shower. (Id.). At times, he will go three days without showering, brushing his teeth, or changing his clothes. (R. 69). At the time of the hearing, he was awaiting hip replacement surgery. (R. 56). Plaintiff last drank alcohol approximately 6 weeks prior to the hearing. (R. 57). Prior to that, he typically drank 1 to 2 times per week, and he used cocaine approximately 7 weeks prior to the hearing. (Id.). Plaintiff's medications cause side effects of headaches, nausea, and a feeling of “spacey-ness.” (R. 58, 60).

A vocational expert (“VE”) testified that an individual of Plaintiff's age, education, and work history who could perform light work, with the limitations that he could occasionally climb, balance, stoop, kneel, crouch, and crawl, could perform Plaintiff's past work as a parking lot attendant, a secretary, a food service manager and a waiter. (R. 73). However, if the individual needed to lie down for up to an hour during the workday in addition to routine breaks, he would be precluded from performing Plaintiff's past work. (R. 73-74). The VE stated that an individual who was off task 10 percent or more of the day or was absent more than once per month would have a difficult time maintaining employment. (R. 74). If an individual of Plaintiff's vocational profile was limited for 25 percent of the day in his ability to perform activities within a schedule and consistently be punctual, work in coordination with or near others without being distracted by them, and perform at a consistent pace without rest periods of unreasonable length or frequency, he would be precluded from all employment. (R. 75). If an individual could not get along with co-workers or peers without distracting them and could not maintain socially appropriate behavior for 25 percent of the workday, he would be precluded from performing Plaintiff's past work. (Id.).

C. The ALJ's Decision

The ALJ found that Plaintiff: (1) “meets the insured status requirements of the Social Security Act [‘the Act'] through December 31, 2020;” (2) “has not engaged in substantial gainful activity since March 30, 2016, the alleged onset date;” (3) “has the following severe impairment: left hip osteoarthritis;” (4) “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 04, Subpart P, Appendix 1;” (5) has the residual functional capacity (“RFC”) to perform light work, “except he can only occasionally climb, balance, stoop, kneel, crouch, and crawl;” and (6) “is capable of performing past relevant work as a parking lot attendant, secretary, food service manager, and waiter,” which does not require the performance of work-related activities precluded by Plaintiff's RFC. (R. 26-36).

In evaluating the severity of Plaintiff's impairments, the ALJ considered Plaintiff's ankle pain and hypertension, finding that they are non-severe, and she determined that there is no evidence in the record indicating a spinal impairment. (R. 27). The ALJ also found Plaintiff's “medically determinable mental impairments of depressive, anxiety, personality, and substance use disorders, singly and in combination” to be non-severe because they do not cause more than minimal limitation in the Plaintiff's “ability to perform basic mental work activities.” (Id.).

Concerning opinion evidence, the ALJ found Dr. Kahane-Pierre's opinions unpersuasive. (R. 30-31). The ALJ explained that while Dr. Kahane-Pierre's opinions confirm Plaintiff's medical conditions and treatment history, “the assessed limitations are wholly inconsistent with the record as a whole.” (Id.).

The ALJ also considered Dr. Ellis' September 12, 2019 opinion that Plaintiff had marked limitations in concentration and persistence, social interaction and adaption, but none-to-mild limitations in understanding and memory, and that he would be absent from work more than three times per month. (R. 31, 539). The ALJ determined that “the assessed concentration and persistence limitation is not supported by the record as a whole, supporting only mild limitations” and “is inconsistent with the relatively minor abnormalities on examination, as well as the [Plaintiff's] routine and conservative treatment history and largely intact activities of daily living.” (Id.). The ALJ found the portion of Dr. Ellis's opinion related to absenteeism speculative and not supported by the medical record, which “does not evidence frequent missed appointments.” (Id.). Moreover, Dr. Ellis's “indication that the assessed limitations dated back to 2016 is inconsistent with the [Plaintiff's] treatment history showing more recent initial of (sic) psychological treatment with generally benign findings on examination.” (Id.).

The ALJ stated that she was “generally persuaded” by the consultative examiner Dr. Frankel's February 8, 2018 opinion that Plaintiff had no more than mild limitations except a moderate limitation in work attendance and routine because it was “consistent with the record as a whole, including relatively minor abnormalities on examination, the [Plaintiff's] routine and conservative treatment history and his largely intact activities of daily living.” (Id.).

The ALJ was persuaded by the opinion of the state Disability Determination Service psychological consultant Dr. Bhutwala, who reviewed the evidence and assessed no mental limitations because it was “consistent with the overall weight of the evidence of record, including the relatively minor abnormalities on mental status examinations, the [Plaintiff's] routine and conservative treatment history, and his largely intact activities of daily living.” (Id.).

In assessing physical impairments, the ALJ found persuasive the opinion of consultative examiner, internist Aurelio Salon, M.D. (“Dr. Salon”),⁶ “to the extent that it lends further support of non-disability,” but did not find persuasive Dr. Salon's conclusion that Plaintiff has no exertional restrictions because the objective evidence in the record supports limitation to light exertional level work. (R. 35).

6 Plaintiff does not dispute the ALJ's assessment of Dr. Salon's opinion. (Pl. Br. at 35, n.22).

The ALJ found unpersuasive Dr. Cirino's March 2018 opinion because it was “not supported by the record as a whole, including relatively minor abnormalities on examination as well as the [Plaintiff's] limited, routine, and conservative treatment history” and was “inconsistent with [Plaintiff's] activities of daily living.” (R. 35-36).⁷

7 Plaintiff does not dispute the ALJ's assessment of Dr. Cirino's opinion. (Pl. Br. at 35, n.22).

The ALJ found unpersuasive an “undated questionnaire” in which “a provider (name illegible)⁸ assessed osteoarthritis of the right hip resulting in the ability to sit for two hours and stand/walk for one hour per workday,” and opined that Plaintiff “would be absent from work more than three times per month.” (R. 36). The ALJ found this opinion unpersuasive because of the lack of the provider's identity and inconsistency of the extreme limitations “with the record as a whole, including relatively minor abnormalities on examination as well as the claimant's limited, routine, and conservative treatment history,” and Plaintiff's activities of daily living. (Id.).

8 Plaintiff asserts that the provider whose name the ALJ noted was illegible is a board-certified pain medicine specialist, Dr. Robin Hill. (Pl. Br. at 35).

The ALJ found persuasive the February 16, 2018 opinion of State Disability Determination Service medical consultant, Dr. Sinha, because it was “consistent with the overall weight of the evidence of record, including the relatively minor abnormalities on physical examinations, the [Plaintiff's] treatment history showing improvement of symptoms, and his largely intact activities of daily living.” (Id.). The ALJ concluded that Plaintiff was not under a disability from March 30, 2016, through the date of her decision. (R. 37).

II. DISCUSSION

Plaintiff argues that the ALJ erred by: (1) finding his mental impairments non-severe, (Pl. Br. at 20-35); (2) failing to properly determine his physical RFC based on the medical opinion evidence, (id. at 35-38); and (3) failing to properly evaluate his subjective statements, (id. at 3840). The Commissioner counters that: (a) the ALJ properly considered Plaintiff's mental impairments, (Comm'r Br. at 9-11); (b) substantial medical and non-medical evidence supports the ALJ's step two finding, (id. at 11-13); (c) the ALJ properly considered the opinion evidence in evaluating Plaintiff's mental impairments, (id. at 14-23); (d) the ALJ properly considered Plaintiff's impairments in combination, (id. at 23-25); (e) substantial evidence supports the ALJ's RFC finding, (id. at 25-29); and (f) substantial evidence supports the ALJ's consideration of the consistency of Plaintiff's subjective statements with the record, (id. at 29-31).

A. Legal Standards

A claimant is disabled if he or she “is unable ‘to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.'” Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)). The SSA has enacted a five-step sequential analysis to determine if a claimant is eligible for benefits based on a disability:

(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a “residual functional capacity” assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008); 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). The claimant has the general burden of proving that he or she is statutorily disabled “and bears the burden of proving his or her case at steps one through four.” Cichocki, 729 F.3d at 176 (quoting Burgess, 537 F.3d at 128). At step five, the burden then shifts “to the Commissioner to show there is other work that [the claimant] can perform.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443,445 (2d Cir. 2012).

When reviewing an appeal from a denial of disability benefits, the Court's review is “limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); see also 42 U.S.C. § 405(g). Substantial evidence means “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)). Put another way, a conclusion must be buttressed by “more than a mere scintilla” of record evidence. Id. (quoting Consol. Edison, 305 U.S. at 229). The substantial evidence standard is “very deferential” to the ALJ. Brault, 683 F.3d at 448. The Court does not substitute its judgment for the agency's or “determine de novo whether [the claimant] is disabled.” Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (alteration in original) (quoting Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)). However, where the proper legal standards have not been applied and “might have affected the disposition of the case, [the] 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)). Therefore, “[f]ailure to apply the correct legal standards is grounds for reversal.” Id.

On January 18, 2017, the SSA revised its regulations for evaluating medical evidence. The rules went into effect on March 27, 2017, and therefore, apply to the instant case because Plaintiff filed his DIB application on August 28, 2017. Under the new regulations, the treating physician rule no longer applies. See 20 C.F.R. § 404.1527(c)(2). Therefore, no special deference is given to the treating physician's opinion. See 20 C.F.R. § 404.1520c(a). Instead, “[the Commissioner] will articulate in [her] determination or decision how persuasive [she] find[s] all of the medical opinions.” 20 C.F.R. § 404.1520c(b). In evaluating the persuasiveness of medical opinions and prior administrative medical findings, the most important factors are supportability and consistency, 20 C.F.R. § 404.1520c(a), although other factors are also considered, including relationship with the claimant, length of the treatment relationship, frequency of examinations, purpose of the treatment relationship, extent of the treatment relationship, examining relationship, specialization and any other relevant factors. 20 C.F.R. § 404.1520c(a)-(c).

The updated regulations also define a “medical opinion” as “a statement from a medical source about what [the claimant] can still do despite [their] impairment(s) and whether [they] have one or more impairment-related limitations or restrictions” in their “ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions . . . ” 20 C.F.R. § 404.1513(a)(2). Thus, a medical opinion must discuss both a claimant's limitations and “what [the claimant] is still capable of doing” despite those limitations. Michael H. v. Saul, 5:20-CV-417(MAD), 2021 WL 2358257, at *6 (N.D.N.Y. June 9, 2021). Relatedly, conclusory statements by a claimant's provider concerning issues reserved to the Commissioner - for instance, whether the claimant is disabled under the Act - are “inherently neither valuable nor persuasive” and will not be analyzed by the ALJ. 20 C.F.R. § 404.1520b(c).

B. ALJ's Duty to Develop the Record

Initially, the Court must be satisfied that the record is fully developed before determining whether the Commissioner's decision is supported by substantial evidence. See Smoker v. Saul, No. 19-CV-1539(AT)(JLC), 2020 WL 2212404, at *9 (S.D.N.Y. May 7, 2020) (“Whether the ALJ has satisfied this duty to develop the record is a threshold question.”). “[I]n light of the ‘essentially non-adversarial nature of a benefits proceeding[,]'” “[a]n ALJ, unlike a judge at trial, has an affirmative duty to develop the record.” Vega v. Astrue, No. 08-Civ-1525(LAP)(GWG), 2010 WL 2365851, at *2 (S.D.N.Y. June 10, 2010) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)). “This duty is present even when a claimant is represented by counsel.” Atkinson v. Barnhart, 87 Fed.Appx. 766, 768 (2d Cir. 2004). “Where there are gaps in the administrative record, remand to the Commissioner for further development of the evidence” is appropriate. Sobolewski v. Apfel, 985 F.Supp. 300, 314 (E.D.N.Y. 1997). “[W]here there are no obvious gaps in the administrative record, and where the ALJ already possesses a ‘complete medical history,' the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (citing Perez v. Chater, 77 F.3d 41, 48 (2d. Cir. 1996)); see also Pellam v. Astrue, 508 Fed.Appx. 87, 90 (2d Cir. 2013).

Here, there is an obvious gap in the record because of the undated, illegibly signed Hip Impairment Questionnaire. (R. 348-54). Plaintiff assumes that the questionnaire was authored by Dr. Robin Hill, (Pl. Br. at 15-16), but the questionnaire only states that it was sent to Dr. Hill, (R. 348), and the Court finds it unlikely that Dr. Hill would send the questionnaire to himself. The signature and printed name on the signature page are illegible, (R. 354), and the ALJ acknowledged that the questionnaire's “author's identity [is] unknown.” (R. 36). Courts have consistently remanded based on the ALJ's failure to develop the record where questionnaires or other medical records have an unknown author. See Segarra v. Comm'r of Soc. Sec., No. 20-CV-5801(PGG)(DF), 2022 WL 1051155, at *15-16 (S.D.N.Y. Feb. 17, 2022), report and recommendation adopted, 2022 WL 669877 (S.D.N.Y. Mar. 7, 2022) (“[T]he ALJ had inadequate information from which to assess Plaintiff's impairments” where the “medical questionnaire that was included in the Record was incomplete and its author was unknown”); see also Ransom v. Comm'r of Soc. Sec., No. 1:19-CV-00096(EAW), 2020 WL 2833003, at *3 (W.D.N.Y. June 1, 2020) (“The incomplete medical source statement created a clear gap in the record that the ALJ should have filled. As such, the ALJ failed to develop the record by not attempting to obtain the missing page and to discern the statement's author.”); see also Gauda v. Comm'r of Soc. Sec., No. 1:19-CV-00076(EAW), 2020 WL 2507334, at *4 (W.D.N.Y. May 15, 2020) (“The illegible signature on the [] opinion [] created a clear gap in the record that the ALJ should have filled.”). It is particularly improper for the ALJ to find an opinion unpersuasive because the opinion is undated and the author is unknown, as the ALJ did here, (R. 36), without the ALJ taking steps to determine its author. See Browne v. Comm'r of Soc. Sec., No. 18-CV-11175(GBD)(KNF), 2020 WL 420317, at *6 (S.D.N.Y. Jan. 8, 2020), report and recommendation adopted, 2020 WL 419758 (S.D.N.Y. Jan. 27, 2020) (“The ALJ assigned ‘little weight' to Exhibit 13F because it was ‘undated and unsigned' without noticing that Exhibit 13F was incomplete and without filling the gap in the record.”). The questionnaire at issue here indicates that the provider treated Plaintiff every two to three months for about two years, from 2016 to 2018, (R. 348), for right hip dysplasia and osteoarthritis, which is at the heart of Plaintiff's disability benefits application. Thus, this opinion is highly relevant to the ALJ's determination of Plaintiff's disability status and the ALJ should have solicited additional information where the record contained an unclear or incomplete treating source opinion. See Angelica M. v. Saul, No. 3:20-CV-00727(JCH), 2021 WL 2947679, at *9 (D. Conn. July 14,2021). Further, the regulations require the ALJ to consider a medical source's specialization, 20 C.F.R. § 404.1520c(c), because it may make the opinion “more persuasive about medical issues related to his or her area of specialty than the medical opinion or prior administrative medical finding of a medical source who is not a specialist in the relevant area of specialty.” 20 C.F.R. § 404.1520c(4). The specialty indicated on the signature page is not clearly legible, and without knowing the author's identity, it is not clear how the ALJ could have considered the provider's specialization or the purpose and extent of his or her treatment relationship with Plaintiff, and thus the persuasiveness of the opinion. See 20 C.F.R. § 404.1520c(3).

Accordingly, I respectfully recommend finding that the ALJ failed to develop the record by not attempting to discern the author's name and specialization, and the date of the Hip Impairment Questionnaire.

C. Severity of Mental Impairments

“An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy[.]” 42 U.S.C.A. § 423(d)(2)(A). A physical or mental impairment “is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.A. § 423(d)(3). “An impairment or combination of impairments is not severe if it does not significantly limit [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1522(a). Basic work activities are “the abilities and aptitudes necessary to do most jobs” and include physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling, capacities for seeing, hearing, and speaking, understanding, carrying out, and remembering simple instructions, using judgment, responding appropriately to supervision, co-workers and usual work situations, and dealing with changes in a routine work setting. 20 C.F.R. § 404.1522(b). If the claimant does “not have any impairment or combination of impairments which significantly limits [his or her] physical or mental ability to do basic work activities, [the ALJ] will find that [he or she does] not have a severe impairment and [is], therefore, not disabled,” and “will not consider [the claimant's] age, education, and work experience.” 20 C.F.R. § 404.1520(c).

When evaluating mental impairments, the ALJ must use a “special technique” which requires that the ALJ first evaluate the claimant's “pertinent symptoms, signs, and laboratory findings to determine” whether the claimant has a medically determinable mental impairment(s). 20 C.F.R. § 404.1520a(b)(1). If a medically determinable mental impairment(s) is found, the ALJ “must specify the symptoms, signs, and laboratory findings that substantiate the presence of the impairment(s) and document” the findings. 20 C.F.R. § 404.1520a(b)(1). The regulations provide that “[s]igns must be shown by medically acceptable clinical diagnostic techniques” and define psychiatric signs to mean “medically demonstrable phenomena that indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought, memory, orientation, development, or perception, and must also be shown by observable facts that can be medically described and evaluated.” 20 C.F.R. § 404.1502(g).

Thereafter, the ALJ must rate the degree of functional limitation resulting from the impairments and record the finding. 20 C.F.R. § 404.1520a(b)(2). In rating the degree of functional limitation, the ALJ “will consider all relevant and available clinical signs and laboratory findings, the effects of [the claimant's] symptoms, and how [his or her] functioning may be affected by factors including, but not limited to, chronic mental disorders, structured settings, medication, and other treatment.” 20 C.F.R. § 404.1520a(c)(1). Moreover, the ALJ “will rate the degree of [the claimant's] functional limitation based on the extent to which [his or her] impairment(s) interferes with [his or her] ability to function independently, appropriately, effectively, and on a sustained basis,” and “will consider such factors as the quality and level of [the claimant's] overall functional performance, any episodic limitations, the amount of supervision or assistance [the claimant] require[s], and the settings in which [the claimant is] are able to function.” 20 C.F.R. § 404.1520a(c)(2). The four broad areas in which the degree of functional limitation is rated are: (i) understanding, remembering, or applying information; (ii) interacting with others; (iii) concentrating, persisting, or maintaining pace; and (iv) adapting or managing oneself. 20 C.F.R. § 404.1520a(c)(3). In rating degrees of limitation in these areas, the five-point scale is used: none, mild, moderate, marked, and extreme. 20 C.F.R. § 404.1520a(c)(4). “If we rate the degrees of [the claimant's] limitation as ‘none' or ‘mild,' we will generally conclude that [his or her] impairment(s) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in [his or her] ability to do basic work activities.” 20 C.F.R. § 404.1520a(d)(1).

“The claimant bears the burden of presenting evidence establishing severity.” Taylor v. Astrue, 32 F.Supp.3d 253, 268 (N.D.N.Y. 2012). In the Second Circuit, a severity inquiry serves only to “screen out de minimis claims.” Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). Consequently, “[a] finding of ‘not severe' should be made if the medical evidence establishes only a ‘slight abnormality' . . . [with] . . . ‘no more than a minimal effect on an individual's ability to work.'” Rosario v. Apfel, No. 97-CV-5759, 1999 WL 294727, at *5 (E.D.N.Y. Mar. 19, 1999) (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n.12 (1987)). Despite this lenient standard, however, “mere presence of a disease or impairment, or establishing that a person has been diagnosed or treated for a disease or impairment, is not, by itself, sufficient to render a condition ‘severe.'” Lau v. Comm'r of Soc. Sec., 339 F.Supp.3d 421, 428 (S.D.N.Y. 2018) (quoting Taylor, 32 F.Supp.3d at 265).

Plaintiff asserts that the ALJ erroneously found Plaintiff's medically determinable depression, anxiety and personality disorder non-severe after finding Dr. Kahane-Pierre's opinions unpersuasive and inconsistent with Plaintiff's conservative treatment history and activities of daily living. (Pl. Br. at 23). Plaintiff further argues it was wrong for the ALJ to reject only the portion of Dr. Frankel's opinion that was consistent with the opinions of the treating and examining sources, while finding persuasive the opinion by a non-examining state agency consultant. (Pl. Br. at 23). The Commissioner asserts that the ALJ properly considered Plaintiff's mental impairments and her assessment that they did not cause more than mild limitations in any of the four functional areas is supported by substantial evidence, including opinions of Dr. Frankel and state agency psychologist, Dr. Bhutwala. (Comm'r Br. at 9-11, 14).

In considering medical evidence of mental impairments, the ALJ acknowledged that Plaintiff was diagnosed with major depressive disorder, anxiety and personality disorder. (R. 27). However, she improperly relied on only the findings in the record she determined to be “normal,” while ignoring the longitudinal medical record supporting the opinions of the Plaintiff's treating psychiatrist. See Sutherlandv. Barnhart, 322 F.Supp.2d 282, 289 (E.D.N.Y. 2004) (“It is not proper for the ALJ to simply pick and choose from the transcript only such evidence that supports his determination, without affording consideration to evidence supporting the plaintiff's claims. It is grounds for remand for the ALJ to ignore parts of the record that are probative of the claimant's disability claim.”).

In connection with the Plaintiff's psychiatric treatment in 2019, the ALJ stated that “[m]ental status examinations continued to show relatively minor abnormalities, and the claimant's condition was generally stable. (Ex. 27F).” (R. 28). However, the ALJ did not cite to anything in Exhibit 27, or any findings by Dr. Kahane-Pierre, in support of her finding of “relatively minor abnormalities,” nor did she define the meaning of the term “relatively minor abnormalities.” Similarly, the ALJ rejected Dr. Kahane-Pierre's January 19, 2018, April 13, 2018 and July 28, 2019 opinions as inconsistent with the record as a whole because “[t]he treatment notes show only mildly abnormal findings on examination.” (R. 30). The ALJ also rejected Dr. Ellis's opinion that Plaintiff had marked limitation in concentration and persistence because it was “inconsistent with the relatively minor abnormalities on examination,” (R. 31), without identifying those relatively minor abnormalities or any medical evidence in the record mentioning or showing the relatively minor abnormalities. See Manfra v. Colvin, No. 15-CV-2844(JFB), 2016 WL 4434820, at *14 (E.D.N.Y. Aug. 22, 2016) (“[A]lthough the ALJ found that Dr. Checo's findings showed only very minimal abnormalities in the lumbar spine, at no point did the ALJ discuss which physical and diagnostic examination findings demonstrated only minor abnormalities.”). It is well settled in this circuit that “the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.” McBrayer v. Sec 'y of Health & Hum. Servs., 712 F.2d 795, 799 (2d Cir. 1983). The ALJ has no authority to opine on the extent of the abnormalities without competent medical evidence. Here, the ALJ did just that when she rejected Dr. Kahane-Pierre's and Dr. Ellis's opinions on the ground that they are inconsistent with “the relatively minor abnormalities,” but cited to no medical evidence in the record to support her opinion. As a result, the ALJ improperly substituted her own opinion for that of Dr. Kahane-Pierre and Dr. Ellis, which is an error of law. See McBrayer, 712 F.2d at 799.

The record, in fact, demonstrates that Plaintiff's mental impairments were not “relatively minor abnormalities.” For example, Dr. Kahane-Pierre diagnosed Plaintiff with bipolar II disorder and grief with prolonged bereavement, as well as “major depressive disorder, recurrent episode, moderate, personality disorder (schizotypal, hypomanic traits),” and noted evidence of Plaintiff's depressed mood, persistent or generalized anxiety, an inappropriate affect, crying, irritability, difficulty making decisions, digressive thoughts, difficulty thinking or concentrating, circumstantial thought process, easy distractibility, decreased energy, anhedonia/pervasive loss of interests, pressured speech, social withdrawal or isolation, and insomnia. (R. 326-27, 330, 511-13, 515). She indicated the signs and symptoms which are the most frequent and/or severe: distractibility, digressive thought process, insomnia, low mood, and difficulty making decisions, and she discussed clinical findings supporting her diagnoses and assessments. (R. 328). Dr. Ellis also pointed to evidence in the record of abnormal affect, manic syndrome, grandiose thoughts, suicidal ideation, easy distractibility, flight of ideas, impulsive or damaging behavior, pressured speech, loosening of associations, and decreased need for sleep. (R. 537, 540). Moreover, findings in the longitudinal treatment records support the evidence cited by Dr. Kahane-Pierre and Dr. Ellis, including depression, (R. 728, 745, 762, 777, 836, 852), anxiety, (R. 671, 799, 832833, 848, 852), an abnormal affect, (R. 567, 617, 635, 655, 671, 728, 787, 813, 827, 832-33, 846, 857), tearfulness, (R. 675-76, 807, 827, 846, 857), irritability, (R. 807, 827), abnormal thinking or concentrating, (R. 567, 617, 635, 655, 671, 688, 728, 745, 832-33, 840, 843-44, 846, 849, 852, 857), abnormal speech, (R. 567, 617, 635, 655, 671, 688, 728, 788, 813, 827, 832-33, 840, 84344, 846, 849), social withdrawal, (R. 655, 832-833, 845), sleep disturbances, (R. 807, 827), and manic symptoms, (R. 812, 827, 836). Thus, the record demonstrates that Plaintiff's mental impairments were not “relatively minor abnormalities.”

Furthermore, the ALJ also dismissed the opinions of Dr. Kahane-Pierre and Dr. Ellis on the ground that Plaintiff had a “routine and conservative treatment history.” (R. 30-31). The ALJ “may not ‘impose[ ] their [respective] notion[s] that the severity of [the claimant's] impairment directly correlates with the intrusiveness of the medical treatment ordered. . . . [A] circumstantial critique by non-physicians, however thorough or responsible, must be overwhelmingly compelling in order to overcome a medical opinion.'” Burgess, 537 F.3d at 129 (quoting Shaw v. Chater, 221 F.3d 126, 134-35 (2d Cir. 2000)); see Nicole V. v. Comm'r of Soc. Sec., No. 1:20-CV-01099(TPK), 2022 WL 1134485, at *4 (W.D.N.Y. Apr. 18, 2022) (“[A]lthough the ALJ did discuss the supportability and consistency factors, his analysis was flawed” because “the ALJ clearly discounted Dr. Morra's opinion based on the type of treatment Dr. Morra provided.”). Here, Plaintiff was treated for years with multiple psychoactive drugs, including Wellbutrin, trazodone, Seroquel and bupropion. (R. 326, 511, 532, 617, 636, 649, 72829, 789, 814, 824, 827-28, 841, 847). Though such treatment “may be less aggressive than inpatient treatment, it is not inherently inconsistent with the presence of ‘marked' functional limitations, nor a basis for rejecting [medical] opinions [that] identified such limitations.” Rivera v. Comm'r of the Soc. Sec. Admin., No. 19-CV-4630(LJL)(BCM), 2020 WL 8167136, at *15 (S.D.N.Y. Dec. 30, 2020), report and recommendation adopted sub nom. Rivera v. Comm'r of Soc. Sec. Admin., 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021). Therefore, the ALJ's finding that Dr. Kahane-Pierre's and Dr. Ellis's opinions were inconsistent with Plaintiff's “routine and conservative treatment history” is not supported by citation to any medical evidence or by substantial evidence in the record, and thus constitutes an error of law.

The ALJ also rejected Dr. Kahane-Pierre's and Dr. Ellis's opinions on the ground that they were inconsistent with “largely intact activities of daily living,” and because the record “does not evidence frequently missed appointments.” (R. 30-31). In assessing the four broad areas of Plaintiff's mental functioning, the ALJ noted that Plaintiff “can shop in stores for necessities,” “spends time with others, including his friend and roommate,” “is able to use public transportation,” and “reads.” (R. 29). In connection with Plaintiff's' activities of daily living, the ALJ found that, despite his impairments, Plaintiff “is still able to maintain some activities of daily living,” noting that Plaintiff “is capable of managing his personal care independently, albeit with some reported difficulties,” “is also able to prepare simple meals and shop for necessities with assistance,” and “is able to assist with light household chores.” (R. 34-35).

It is well settled that “‘a claimant need not be an invalid to be found disabled' under the Social Security Act.” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (citing Williams v. Bowen, 859 F.2d 255, 260 (2d Cir. 1988)). The SSA's regulations concerning mental disorders listing 12.00 provide:

We will consider the complete picture of your daily functioning, including the kinds, extent, and frequency of help and support you receive, when we evaluate your mental disorder and determine whether you are able to use the four areas of mental functioning in a work setting. The fact that you have done, or currently do, some routine activities without help or support does not necessarily mean that you do not have a mental disorder or that you are not disabled. For example, you may be able to take care of your personal needs, cook, shop, pay your bills, live by yourself, and drive a car. You may demonstrate both strengths and deficits in your daily functioning.

20 C.F.R. § Pt. 404, Subpt. P, App. 1, Listing 12.00(D)(3)(a).

The ALJ did not identify any inconsistencies, or explain how or why the specialists' medical opinions are inconsistent with any of the Plaintiff's activities of daily living. However, the ALJ did find that, although Plaintiff “is still able to maintain some activities of daily living,” he needs assistance and has difficulties performing them. (R. 34-35). Consequently, the ALJ's finding that Dr. Kahane-Pierre's and Dr. Ellis's opinions are inconsistent with “largely intact activities of daily living,” (R. 30-31), is undermined by the ALJ's own finding that Plaintiff needs assistance preparing simple meals and shopping, and has difficulty managing his personal care independently, (R. 34-35).

In addition, the ALJ did not explain how the lack of frequently missed medical appointments in the record relates to the Plaintiff's ability to adhere to the attendance requirements of a full-time work schedule. (R. 30-31). The record does not indicate that Plaintiff had weekly or daily medical appointments, which undermines the ALJ's conclusion that Plaintiff's ability to attend his occasional medical appointments without frequently missing them translates into being able to continuously show up daily for work as required. Thus, rejecting Dr. Kahane-Pierre's and Dr. Ellis's opinions about Plaintiff's absence from work because there was no evidence in the record that Plaintiff frequently missed appointments was erroneous and not supported by substantial evidence.

Finally, in rejecting Dr. Ellis' opinion, the ALJ noted that Dr. Ellis only examined Plaintiff once at the request of his counsel, without explaining the relevance of that fact to her assessment. To the extent that the ALJ rejected Dr. Ellis's opinion on the ground that Dr. Ellis examined Plaintiff only once at the request of his counsel, the ALJ committed an error of law and his rejection on this ground is not supported by substantial evidence. See Ryan v. Astrue, 5 F.Supp.3d 493, 510 (S.D.N.Y. 2014) (“[T]he mere fact that a medical report is provided at the request of counsel or, more broadly, the purpose for which an opinion is provided, is not a legitimate basis for evaluating the reliability of a report.”). Thus, the ALJ improperly rejected Dr. Kahane-Pierre's and Dr. Ellis's opinions regarding Plaintiff's mental limitations.

Accordingly, I respectfully recommend finding that the ALJ's determination that Plaintiff's mental impairments were non-severe is not supported by substantial evidence.

Assuming, arguendo, that Plaintiff's mental impairments were properly found to be non-severe, the ALJ erred in failing to include any mental limitations in the RFC. “Even where ‘substantial evidence supports the ALJ's finding that a claimant's mental impairment was nonsevere, it would still be necessary to remand ... for further consideration where the ALJ failed to account for the claimant's mental limitations when determining her RFC.'” Rousey v. Comm'r of Soc. Sec., 285 F.Supp.3d 723, 740-41 (S.D.N.Y. 2018) (citing Parker-Grose v. Astrue, 462 Fed.Appx. 16, 18 (2d Cir. 2012)) (collecting cases); see also 20 C.F.R. § 404.1545(a)(2) (“We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not ‘severe [ ]' ... when we assess your [RFC][.]”). However, “where an ALJ fails to mention non-severe impairments in formulating the RFC, such an error may be considered harmless ‘absent evidence that these impairments contributed to any functional limitations.'” Andino v. Saul, No. 1:18-CV-00379(JJM), 2019 WL 4621878, at *2 (W.D.N.Y. Sept. 24, 2019). In the RFC portion of her decision, the ALJ only briefly summarized Plaintiff's testimony regarding his psychological impairments, without evaluating its impact on his ability to work. The fact that the ALJ analyzed the paragraph B criteria and discussed the weight she assigned to the opinions of Dr. Kahane-Pierre and Dr. Ellis, as well as the opinions of the consultative examiner and State Disability Determination Service psychological consultant, (R. 29-32), in finding Plaintiff's mental impairments to be non-severe, did not relieve her of the requirement to discuss these mental health impairments in the RFC portion of her decision. Cantos v. Comm'r of Soc. Sec., No. 1:19-CV-04269(GBD)(SDA), 2020 WL 5371341, at *12 (S.D.N.Y. July 31, 2020), report and recommendation adopted, No. 19-CIV-4269(GBD)(SDA), 2020 WL 5369919 (S.D.N.Y. Sept. 8, 2020). Furthermore, the ALJ's boilerplate statement that she “will take into account all allegations arising from both severe and non-severe impairments” in determining Plaintiff's RFC does not cure this flaw. Id.; Calderon v. Comm'r of Soc. Sec., No. 16-CIV-9002(PKC)(RWL), 2018 WL 1466099, at *16 (S.D.N.Y. Mar. 5, 2018), report and recommendation adopted, 2018 WL 1468687 (S.D.N.Y. Mar. 23, 2018) (“The ALJ's opinion only formulaically states that he would consider mental impairments in his RFC section ... but there is nothing in the ALJ's opinion indicating that he carried out that duty.”). Additionally, the ALJ's error was not harmless because the ALJ's own analysis in step two highlights mental impairments that did contribute to functional limitations, as discussed above. Accordingly, I respectfully recommend remanding this matter to the ALJ for further consideration of Plaintiff's mental impairments in the RFC analysis.

Plaintiff also argues that the ALJ failed to consider the combined impact of all of Plaintiff's impairments, severe and non-severe. (Pl. Br. at 35). The Commissioner responds that the ALJ expressly indicated that she considered Plaintiff's impairments in combination, (R. 32), which is sufficient. (Comm'r Br. at 24-25). “[A]s [the Second Circuit] has long recognized, the combined effect of a claimant's impairments must be considered in determining disability; the SSA must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe.” Dixon, 54 F.3d at 1031. “Thus, in assessing a claimant's RFC, the ALJ must consider the effects of her impairments separately and in combination, regardless of severity.” Calderon, 2018 WL 1466099, at *16 (finding that the ALJ listed some of Plaintiff's impairments separately and found them to be non-severe, but “said nothing regarding whether these impairments or other impairments were considered in combination, and there [was] no other indication from the opinion that he did so during the RFC analysis.”); see also Cantos, 2020 WL 5371341, at *12. As discussed above, the ALJ failed to specifically consider the impact of Plaintiff's mental impairments on the RFC, and as such, necessarily failed to consider the combined effect of her mental and physical impairments. Accordingly, I respectfully recommend remanding this matter to the ALJ for further consideration of the combined effect of Plaintiff's impairments.

D. Physical RFC

The claimant's RFC is the most the claimant can still do despite limitations, and the RFC is assessed “based on all the relevant evidence” in the record, including all medically determinable impairments regardless of their severity. 20 C.F.R. § 404.1545(a)(1)-(2). The applicable regulations provide the following:

When we assess your physical abilities, we first assess the nature and extent of your physical limitations and then determine your residual functional capacity for work activity on a regular and continuing basis. A limited ability to perform certain physical demands of work activity, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping or crouching), may reduce your ability to do past work and other work.

20 C.F.R. § 404.1545(b). If the claimant has a severe impairment, but his symptoms, signs and laboratory findings do not meet or equal those of a listed impairment:

[W]e will consider the limiting effects of all your impairment(s), even those that are not severe, in determining your residual functional capacity. Pain or other symptoms may cause a limitation of function beyond that which can be determined on the basis of the anatomical, physiological or psychological abnormalities considered alone; e.g., someone with a low back disorder may be fully capable of the physical demands consistent with those of sustained medium work activity, but another person with the same disorder, because of pain, may not be capable of more than the physical demands consistent with those of light work activity on a sustained basis. In assessing the total limiting effects of your impairment(s) and any related symptoms, we will consider all of the medical and nonmedical evidence, including the information described in § 404.1529(c).

20 C.F.R. § 404.1545(e).

Plaintiff asserts that the ALJ did not properly evaluate the Hip Impairment Questionnaire, which Plaintiff claims was authored by board-certified pain specialist Dr. Robin Hill (“Dr. Hill”), when determining Plaintiff's RFC, and instead improperly relied on the opinion of a state agency non-examining medical consultant, Dr. Sinha, who did not review the most recent two years of medical records for the period at issue. (Pl. Br. at 35-38). The Commissioner asserts that the ALJ properly relied on Dr. Sinha's February 2018 opinion, which constitutes substantial evidence, and the evidence does not demonstrate that Plaintiff's condition significantly deteriorated since Dr. Sinha's opinion. (Comm'r Br. at 25-29).

The ALJ evaluated the Hip Impairment Questionnaire, acknowledging that it was undated and its “author's identity unknown.” (R. 36). As discussed above, without knowing the author's identity, it was impossible for the ALJ to confirm the provider's specialization, as required under 20 C.F.R. § 404.1520c(c). Furthermore, the ALJ erroneously found that the opinion was not supported by clinical examinations. The Hip Impairment Questionnaire indicates that the date of the first treatment was 2016, the date of most recent exam was April 17, 2018, and the frequency of treatment was “every 2-3 months.” (R. 348). The provider diagnosed Plaintiff with hip dysplasia and osteoarthritis. (Id.). He or she also identified the laboratory and diagnostic test results in support of the diagnoses, citing to left hip radiography showing severe degenerative changes and clinical evidence of limited range of motion and pain with internal rotation of the left hip, an abnormal gait “L hip,” and reduced range of motion in the right ankle. (R. 348-49).

In assessing the consistency of this opinion, the ALJ did not compare the evidence on which the provider relied with any findings in the treatment record, which is at the core of evaluating the consistency factor. See 20 C.F.R. § 404.1520c(c)(2). X-rays of the Plaintiffs left hip demonstrated consistently severe end-stage osteoarthritis with narrowing of the left hip joint, loss of the superior cartilaginous thickness and concentric osteophyte formation, subchondral sclerosis and small subchondral cysts, progressive degenerative changes from prior imaging, a stable bone island in the ileum, and a healing traumatic fracture of the left femoral shaft with slight deformity. (R. 292, 305, 819). These findings are consistent with physical examinations that found decreased range of motion, (R. 296, 299, 301, 303, 305, 613, 757, 796, 819), stiffness, (R. 301), positive FADIR test, (R. 301, 613), an abnormal gait/use of a cane, (R. 296, 299, 613), lower limb discrepancy, (R. 299), pain with straight leg raise, (R. 299), and tenderness, (R. 296, 819).

The ALJ also erroneously found the opinion inconsistent with Plaintiff's “limited, routine, and conservative treatment history,” and activities of daily living. Rejecting the opinion on the ground that it is inconsistent with the Plaintiff's conservative treatment was improper because the ALJ substituted her own opinion on the nature and extent of the treatment for that of the Plaintiff's medical source, including the opinion's finding that Plaintiff experienced constant “pain, fatigue or other symptoms severe enough to interfere with attention and concentration,” (R. 352), and had not been able “to completely relieve the pain with medication without unacceptable side effects,” (R. 350). Balsamo, 142 F.3d at 81 (“[I]t is well-settled that ‘the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.... [W]hile an [ALJ] is free to resolve issues of credibility as to lay testimony or to choose between properly submitted medical opinions, he is not free to set his own expertise against that of a physician who [submitted an opinion to or] testified before him.'”); Burgess, 537 F.3d at 129 (“[T]he opinion of the treating physician [is not] to be discounted merely because he has recommended a conservative treatment regimen.”); Shawn H. v. Comm'r of Soc. Sec., No. 2:19-CV-113, 2020 WL 3969879, at *6 (D. Vt. July 14, 2020) (internal citations omitted) (“Even though ALJs are no longer directed to afford controlling weight to treating source opinions-no matter how well supported and consistent with the record they may be-the regulations still recognize the ‘foundational nature' of the observations of treating sources, and ‘consistency with those observations is a factor in determining the value of any [treating source's] opinion.'”).

Accordingly, the ALJ did not properly evaluate the Hip Impairment Questionnaire or its impact on Plaintiff's physical RFC, which is a basis for remand. On remand, the ALJ should “ensure that every portion of [her] RFC assessment is supported by medical evidence in the Record.” Shafer v. Saul, No. 20-CV-3060(VSB)(DCF), 2022 WL 827075, at *18 (S.D.N.Y. Jan. 20, 2022), report and recommendation adopted, 2022 WL 826411 (S.D.N.Y. Mar. 18, 2022); see also Towers v. Astrue, No. 09-CV-00070(GTS), 2010 WL 3338724, at *8 (N.D.N.Y. June 8, 2010), report and recommendation adopted sub nom. Towers v. Comm'r of Soc. Sec., 2010 WL 3338733 (N.D.N.Y. Aug. 24, 2010).

E. Evaluation of Plaintiff's Statements

An ALJ must follow a two-step process for evaluating a claimant's assertions of pain and other limitations. First, “the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). Second, if the claimant does suffer from such an impairment, “the ALJ must consider ‘the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence' of record.” Id. (citation omitted). The ALJ considers the claimant's activities, the location, duration, frequency, “intensity and persistence” of the claimant's symptoms, such as pain, and determines the extent to which such symptoms limit the claimant's ability for work. 20 C.F.R. § 404.1529(c). “In evaluating the intensity and persistence of [claimant's] symptoms, [the ALJ must] consider all of the available evidence from [claimant's] medical sources and nonmedical sources about how [his or her] symptoms affect [him or her].” 20 C.F.R. § 404.1529(c)(1).

Although the ALJ must consider claimant's subjective complaints of pain when conducting the five-step disability analysis, 20 C.F.R. §§ 404.1529 (2017), 416.929 (2017), the ALJ is not required to blindly accept the subjective testimony of a claimant when examining the issue of pain. Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Rather, an ALJ has the discretion to evaluate a claimant's subjective testimony and “arrive at an independent judgment.. .in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant.” Mimms v. Heckler, 750 F.2d 180, 185-86 (2d Cir. 1984) (internal quotations omitted). If the claimant's testimony relating to the intensity, persistence or functional limitations associated with the pain is not fully supported by the medical evidence alone, the ALJ must consider other facts, including:

(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.

Hamm v. Colvin, No. 16-CV-936(DF), 2017 WL 1322203, at *18 (S.D.N.Y. Mar. 29, 2017) (citing 20 C.F.R. § 404.1529(c)(3)(i)-(vii)). After considering these factors, the ALJ “has the discretion to evaluate the credibility of a claimant and to arrive at an independent judgment . . . regarding the true extent of the pain alleged by claimant.” Martinez v. Astrue, No. 10-Civ-9284(PKC), 2012 WL 4761541, at *11 (S.D.N.Y. Aug. 1, 2012) (quoting Mimms, 750 F.2d at 186); see also Genier, 606 F.3d at 49 (the ALJ “may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record.”). “If there is no information in the evidence of record regarding one of the factors, [the ALJ] will not discuss that specific factor in the determination or decision because it is not relevant to the case. [The ALJ] will discuss the factors pertinent to the evidence of record.” SSR 16-3P, 2017 WL 5180304, at *8 (Oct. 25, 2017). The SSA eliminated the use of the term “credibility” because it is not used in the regulations and to clarify that “subjective symptom evaluation is not an examination of an individual's character.” Id. at *2. Furthermore, where an ALJ gives a specific reason for finding the claimant not credible, the ALJ's determination “is generally entitled to deference on appeal.” Selian, 708 F.3d at 420 (citing Calabrese v. Astrue, 258 Fed.Appx. 274, 277 (2d Cir. 2009)) (summary order). Moreover, “[i]f these findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount plaintiff's subjective complaints of pain.” Martinez, 2012 WL 4761541, at *11 (citing Aponte v. Sec'y of Dep't of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)).

Here, Plaintiff asserts that the ALJ used the same boilerplate language to evaluate his subjective statements as she did to evaluate the opinion evidence, which is insufficient to support the ALJ's assessment. (Pl. Br. at 39-40). The Commissioner argues that the ALJ ‘s evaluation of the Plaintiff's subjective statements is supported by substantial evidence. (Comm'r Br. at 30-31).

In evaluating the Plaintiff's subjective statements about his symptoms, the ALJ explained that clinical examination findings were not sufficient to support Plaintiff's allegations concerning his musculoskeletal condition, that his treatment was conservative, and that his daily activities indicated that he could perform light exertional work. (R. 34-35). The ALJ used the same conclusory explanation for finding Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms [] not entirely consistent with the medical evidence and other evidence in the record” that she used when evaluating the opinion evidence. (R. 33). The applicable regulations provide that the ALJ “will not reject [claimant's] statements about the intensity and persistence of [his or her] pain or other symptoms or about the effect [claimant's] symptoms have on [his or her] ability to work solely because the available objective medical evidence does not substantiate [his or her] statements.” 20 C.F.R. § 404.1529(c)(2). As discussed above, the ALJ improperly substituted her own opinion for that of medical sources concerning “conservative” treatment, ignored the evidence that Plaintiff needed assistance with daily activities and had difficulty performing some of them, and relied on insufficient clinical findings concerning Plaintiff's musculoskeletal conditions. Therefore, relying on these erroneous findings cannot constitute substantial evidence.

Accordingly, I respectfully recommend finding that the ALJ's evaluation of the Plaintiff's subjective statements is not supported by substantial evidence.

III. CONCLUSION

For the foregoing reasons, I conclude and respectfully recommend granting Plaintiff's motion for judgment on the pleadings, denying the Commissioner's cross-motion, and remanding the case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Report and Recommendation.

IV. NOTICE

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report and Recommendation to serve and file written objections. See Fed.R.Civ.P. 6(a) and (d) (rules for computing time). A party may respond to another party's objections within fourteen (14) days after being served with a copy. See Fed.R.Civ.P. 72(b)(2). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Nelson S. Roman at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at said Courthouse.

Requests for extensions of time to file objections must be made to the Honorable Nelson S. Roman and not to the undersigned. Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b), 6(d), 72(b); Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008).