Opinion
20-CV-7312 (ER) (BCM)
03-31-2022
DANIEL M. BOLAND, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
AMENDED REPORT AND RECOMMENDATION TO THE HON. EDGARDO RAMOS
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Daniel Boland filed this action pursuant to § 405(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking judicial review of a final determination of the Commissioner of Social Security (Commissioner) denying his application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). Now before me for report and recommendation are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Plaintiff primarily argues that the Administrative Law Judge (ALJ) erred by failing to address "the required factors of supportability and consistency" before concluding that the opinion of plaintiff's treating neurologist - who wrote that he was "currently not capable of participating in work activities" -was not persuasive. I find no such error. Consequently, for the reasons discussed in more detail below, I recommend that plaintiff's motion (Dkt. No. 29) be denied, that the Commissioner's motion (Dkt. No. 31) be granted, and that the case be dismissed.
1. BACKGROUND
A. Procedural Background
Plaintiff applied for DIB on May 15, 2017, see Certified Administrative Record (Dkt. No. 25) (hereinafter "R. ____ ") 78, 182-89, and for SSI on June 17, 2017 (R. 79), asserting disability since September 1, 2014 due to traumatic brain injury, epilepsy, left eye blindness and cognitive impairment. (R. 9, 53, 66.) On October 25, 2017, both applications were denied (R. 82-88), after which plaintiff requested a hearing before an ALJ, which was held on May 14, 2019. (R. 26-51.) At the hearing, plaintiff appeared with counsel and testified before ALJ Sandra R. DiMaggio Wallis. (R. 27-51.) Vocational expert (VE) Rebecca Hill also appeared and testified, by telephone. (R. 45-49). In a written decision dated August 2, 2019 (Decision), ALJ Wallis determined that plaintiff was not disabled within the meaning of the Act. (R. 9-18.)
On August 19, 2019, plaintiff sought Appeals Council review (R. 165), but his request was denied on July 6, 2020 (R. 1-5), rendering the ALJ's determination final.
On September 8, 2020, plaintiff commenced this civil action.
B. Personal Background
Plaintiff Boland was born on July 15, 1984 (R. 65), making him 30 years old on the alleged onset date and 35 years old on the date of the Decision. According to his mother, he suffered a head injury when he was five months old, causing seizures, for which he was treated with phenobarbital as a child. (R. 283.) Thereafter, he was seizure-free until approximately 2002, when he was once again placed on anti-seizure medication. (Id.) As of his alleged onset date he was taking Trileptal daily, with no medication side effects. (R. 292-94.)
Trileptal is a brand name for Oxcarbazepine, which is "used alone or together with other medicines in the treatment of epilepsy to control partial seizures." Mayo Clinic, Oxcarbazepine (Oral Route), https://www.mayoclinic.org/drugs-supplements/oxcarbazepine-oral-route/description/drg-20067615 (all cited urls were last visited February 28, 2022).
On October 25, 2002, when plaintiff was 18 years old and a senior in high school, he was assessed on the WASI (Weschler Abbreviated Scale of Intelligence), and scored as follows:
Scale
Score
Percentile
Category
Verbal
90
25
Average
Performance
92
30
Average
Full Scale
89
23
Low Average
(R. 275.) On January 7, 2003, plaintiff was assessed again, using the WAIT-II (Weschler Individual Achievement Test-II), scoring between 87 (low average) and 90 (average) on various sub-tests (R. 272), and was noted to be doing "borderline work in a number of subjects." (Id.)
Plaintiff obtained his high school diploma, and worked as a service clerk at a grocery store and as a dishwasher until September 2014, after which he received some unemployment compensation but did not work for wages. (R. 33-34, 195.) Due to his seizure disorder, he does not drive. (R. 44.) At the time of the hearing, he lived with his girlfriend and their two young children. (R. 14.) He told a consulting neurologist that although his girlfriend did the cooking, he cleaned every day, did the laundry, and assisted his girlfriend with childcare and shopping. (R. 362.) Plaintiff requires no assistance with bathing, dressing, or personal hygiene. (Id.) He and his girlfriend go out to eat once a month and to the movies "once in a while." (R. 42.)
11. MEDICAL EVIDENCE
A. Treating
1. Marcelo Lancman, M.D.
Dr. Lancman, a neurologist, treated plaintiff for his seizure disorder from October 25, 2011 through November 2016. (R. 283-300, 310-27). From May 12 to May 14, 2014 (four months prior to his alleged onset date), plaintiff underwent video electroencephalogram (EEG) monitoring, which showed two abnormalities: asymmetric background (right greater than left amplitude) and sporadic focal epileptiform discharges arising from the right occipital region, correlated with "hemispheric dysfunction" and "localization-related epilepsy, most likely of the right occipital region." (R. 319.)
An EEG "detects electrical activity in your brain using small, metal discs (electrodes) attached to your scalp." Mayo Clinic, EEG (electroencephalogram), https://www.mayoclinic.org/tests-procedures/eeg/about/pac-20393875.
On October 27, 2015 - his first visit after his alleged onset date - plaintiff was accompanied to his appointment with Dr. Lancman by his father, who reported that plaintiff was having an average of two seizures a month - but not while he was awake. (R. 294.) Dr. Lancman ordered another video EEG, which was conducted from November 9 through November 12, 2015. (R. 32023.) The test results were "normal." (R. 323.) At plaintiff's next visit on December 22, 2015, plaintiff and his father reported "no seizures since [the] last visit." (R. 296.) Dr. Lancman noted that the EEG was "unremarkable," and continued plaintiff's treatment with Trileptal. (Id.).
On August 23, 2016, plaintiff and his father saw Dr. Lancman again. (R. 297.) According to plaintiff's father, plaintiff's girlfriend noticed plaintiff having nocturnal seizures every other night. (Id.) Plaintiff was not aware of these seizures himself. (Id.) Plaintiff's neurological exam was unremarkable. (Id.) Dr Lancman did not observe any ataxia (lack of muscle control or coordination) or gait abnormality. (Id.) However, he ordered another EEG "to characterize the seizures." (Id.) That EEG, performed on September 12, 2016, was again "normal" (R. 299, 310), but when plaintiff was seen on October 25, 2016, his Trileptal level was "less than 2" (R. 299), suggesting that he was not fully compliant with his medication regimen. Dr. Lancman ordered repeat bloodwork and a new video EEG. (Id.) A video EEG was conducted from November 7 through November 10, 2016 (R. 324-27), and was once again "normal." (R. 327.)
The reference range for the medication is 8.0-35.0 mcg/ML. (R. 306.)
2. Adrienne Salomon, M.D.
Dr. Salomon, a neurologist, saw plaintiff six times from June 12, 2017 through April 23, 2019. (R. 368-71, 379-87, 395-417, 424.) Before that, plaintiff had an annual physical on April 22, 2017, during which he "denie[d] recent seizure-like activity," reported that he felt "well with no complaints," and stated that he exercised daily, including by walking. (R. 391-92.) His seizure disorder was noted to be "stable." (R. 394.)
During his first visit to Dr. Salomon, plaintiff reported that his recent EEGs with Dr. Lancman (which he did not bring with him) showed that "he is having events at night and subclinical events during the day," that a brain MRI at some point in the past "revealed huge post traumatic left paracephalic cyst with associated left hemispheric atropy," and that plaintiff was "applying for disability." (R. 379.) On examination, Dr. Salomon noted "mild ataxia" of the gait, ordered a CT scan of the brain (which was not done, apparently for insurance reasons), and assessed seizure disorder and cerebral palsy. (R. 380.)
Thereafter, plaintiff saw Dr. Salomon approximately every six months. At each visit, Dr. Salomon observed that plaintiff's physical examination findings were normal, except for mild ataxia of the gait and vision loss in the left eye. (R. 369-70, 382-83, 397-98, 408, 412, 416.) At each visit, plaintiff denied having had any seizures since the last visit (R. 368, 381, 406, 414), except on April 17, 2018, when he reported that he "kicked his wife at night about once a week" and was unsure as to whether this was a seizure. (R. 368.) A blood test for Trileptal in on April 17, 2018 showed a low blood level of less than 1.0 mcg/mL (R. 384), but a later blood test, on November 20, 2018, showed a level of 9.4 mcg/mL, within the reference range. (R. 424.)
On January15, 2019, plaintiff saw Dr. Salomon and reported left-sided neck pain and left shoulder pain for the past three days, but was unsure if he had a seizure. (R. 410.) Dr. Salomon wrote a prescription for physical therapy. (R. 412.) At plaintiff's April 23, 2019 visit he was "seizure free" since the last visit, and did not mention neck or shoulder pain. (R.414.)
B. Opinion Evidence
1. Consultative Examiner Leslie Helprin, Ph.D.
Dr. Helprin, a clinical psychologist, evaluated plaintiff on September 7, 2017, for purposes of his benefits application. (R. 346-51.) Plaintiff reported that he completed a year of community college after high school and that he left his job as a dishwasher because the company went bankrupt. (R. 347.) He told Dr. Helprin that he could no longer work because he had weakness on his left side and short-term memory difficulties, including difficulty in recognizing even people he knows well for the first "two or three seconds." (Id.) He could bathe, dress, and groom himself, cook (though his girlfriend "preferred to do it"), clean, and do laundry (though he required help carrying the bundles up and down the stairs). (R. 349.) He had difficulty budgeting, and explained that his girlfriend helped him manage his money. (Id.) He cared for his children, socialized with friends and relatives, watched television, read, collected DVDs, watched movies, played video games, and listened to music. (Id.)
Plaintiff's mental status examination was unremarkable except that his affect was restricted and his mood was "neutral to somewhat anxious." (R. 348.) Additionally, his recent and remote memory skills were "impaired due to limited intellectual functioning." (R. 349.) He recalled 3 of 3 objects immediately but only 2 after a five-minute delay. He could repeat 4 digits forwards or backwards. (Id.) Dr. Helprin estimated his intellectual skills in the borderline range and noted that his general fund of information was "somewhat limited" and his insight was "fair," though his judgment was "good." (Id.)
Dr. Helprin opined that plaintiff had no limitations in: (1) understanding, remembering, and applying simple instructions and directions, (2) using reason and judgment to make work-related decisions, (3) interacting adequately with co-workers, supervisors, and the public, (4) sustaining concentration and performing a task at a consistent pace, (5) sustaining an ordinary routine and regular attendance at work, and (6) regulating emotions, controlling behavior, and maintaining well-being. (R. 349-50.) Her examination did not reveal any psychiatric problems "that would significantly interfere with the claimant's ability to function on a daily basis." (R. 350.) She recommended, however, that he undergo a medical evaluation, and noted that he might benefit from "vocational retraining for a simple job with job coach support and transportation provided." (R. 350.)
2. Consultative Examiner Chad Lewick, O.D.
Dr. Lewick, an optometrist, examined plaintiff on September 15, 2017, for purposes of his benefits application. (R. 354-58.) Plaintiff complained of blurred vision in his left eye and relayed that, "without spectacle correction[, ] [p]roblems are experienced primarily at close-range." (R. 355.) Dr. Lewick found that plaintiff's unaided distance visual acuity was at 20/60 in his right eye, 20/200 in his left eye, and 20/60 for both eyes. (Id.) Plaintiff's aided visual acuity, for both distance and near, was 20/30 in his right eye, 20/200 in his left eye, and, 20/30 for both eyes. (Id.)
3. State Agency Examiner S. Hennessey, Ph. D.
Dr. Hennessey, a state agency psychological consultant, assessed plaintiff's mental residual functional capacity (RFC) on September 19, 2017, based on a review of the record at that point. (R. 59-62.) Overall, Dr, Hennessey noted, "the evidence of record indicates [a] claimant with general intellectual function falling within the borderline to low average range," (R. 62) who retained the capacity to: (1) understand and remember simple instructions and procedures, (2) sustain adequate concentration to complete simple tasks independently on a sustained basis, (3) engage in routine interactions to meet basic work needs, and (4) cope with basic changes in the work place and making routine work place decisions. (Id.) Dr. Hennessey concluded that plaintiff could perform "simple work." (Id.)
4. Consultative Examiner Rita Figueroa, M.D.
Dr. Figueroa, a surgeon, performed a neurological evaluation of plaintiff on October 17, 2017, for purposes of his benefits application. (R. 362-65). Plaintiff reported that he had a grand mal seizure "last year witnessed by his girlfriend after he kicked her in bed" (R. 362) and also had petite mal seizures, "except he cannot tell when was the last one." (Id.) He said that his girlfriend did the cooking but he cleaned daily, did the laundry, went shopping ("always with someone"), and took care of the children. (Id.) His hobby was video games. (Id.) On examination, Dr. Figueroa observed that plaintiff's gait and stance were normal. (R. 363.) He exhibited no difficulty changing for the examination, getting on and off the examination table, or rising from a seated position. (Id.) He demonstrated full muscle strength and normal sensation throughout his arms and legs; his hand and finger dexterity was intact; and he demonstrated full grip strength bilaterally. (R. 363-64.) However, the Romberg test (for balance problems) was abnormal and "[r]ight hand finger-to-nose testing" was slow. (R. 363.) Dr. Figueroa diagnosed seizure disorder and left-eye vision loss. (R. 364.) She opined that plaintiff should avoid driving, operating motorized machinery, and being on unprotected heights and ladders. (Id.) She added that plaintiff would have difficulty with activities requiring fine visual acuity. (Id.)
5. State Agency Examiner R. Pradhan, M.D.
Dr. Pradhan, a state agency medical consultant, assessed plaintiff's physical RFC on October 24, 2017, based on evidence of record to date. (R. 58-59.) Dr. Pradhan opined that plaintiff had no exertional, postural, or manipulative limitations, but could not perform work activities that required full visual acuity, depth perception, or full field of vision. (Id.)
6. Treating Physician Adrienne Salomon, M.D.
On April 29, 2019, Dr. Salomon completed a 2-page questionnaire for the Orange County Department of Social Services. (R. 386-87.) She diagnosed plaintiff with epilepsy and cerebral palsy and opined that he was limited to "sedentary" work, meaning that he could lift no more ten pounds occasionally and, during the course of an eight-hour workday, could sit for no more than six hours, and could stand and/or walk for no more than two hours each. (R. 387.) She then checked a box to opine that plaintiff was "currently not capable of participating in work activities at this time," and wrote, in the space for "reasons," "seizures." (R. 387). She did not check the "permanently disabled" box. (Id.) Nor did she check the box asking whether plaintiff had a "severe impairment(s) which has lasted, or is expected to last, at least 12 months." (Id.) Other than the reference to "seizures," and another reference to her "attached notes," Dr. Salomon did not explain her opinions. (R. 386-87.)
III. HEARING
A. Plaintiff's Testimony
At the May 14, 2019, hearing, ALJ Wallis presided from St. Louis, Missouri, while plaintiff appeared in Goshen, New York with his counsel. (R. 9.)
After confirming his education and work background, plaintiff testified that he had trouble concentrating and would sometimes get distracted and forget to complete tasks he had started. (R. 41.) Regarding his former employment at a grocery store, he recalled times when he "thought he was pushing carts," as instructed, but his managers told him he had been gone two hours and that they had been unable to find him during that time. (R. 36-37.) He said that that job ended "[b]ecause I moved out of Orange County." (R. 43.)
Regarding the day-to-day operation of his home, plaintiff stated that his girlfriend did the cooking, but he helped her when she went grocery shopping, assisted in watching the children, who were then aged five and seven, took the children to the park, and helped with the cleaning. (R. 41-42.) He and his girlfriend ate out once a month and saw a movie occasionally. (R. 42.)
Regarding his seizure disorder, plaintiff testified that he had seizures "every other night or every night," when he was sleeping (noted by his girlfriend, who did not testify), and that during the day "I daydream a lot and my neurologist told me those are mini seizures." (R. 39.) Plaintiff testified that he took Trileptal, but that his girlfriend sometimes had to remind him to take his medication. (R. 44.) He did not think he would be able to maintain "the schedule of a 40 hour a week job," but was not asked why. (R. 45.) Plaintiff confirmed that he is a "lefty" and stated that his right side was "weaker than my left," "[b]ecause of the brain damage." (R. 49-50.)
This is not reflected in the treating notes submitted to the Social Security Administration.
B. VE Testimony
After plaintiff's testimony, the ALJ asked VE Hill about a hypothetical individual who had no exertional limitations but was limited to: (1) no climbing ladders, ropes, or scaffold, (2) avoiding unprotected heights, hazardous machinery, and commercial driving, (3) no requirement of fine binocular vision or fine depth perception, (4) understanding, remembering, and carrying out only simple tasks and job instructions, (5) only occasional interaction with supervisors, coworkers and the general public, (6) routine changes in the workplace, and (7) no strict production quotas or production rate pace. (R. 46-47.) VE Hill testified that such an individual could perform the jobs of kitchen helper, cleaner II, and laundry laborer. (R. 47). According to VE Hill, there were 154, 000 kitchen helper jobs, 140, 000 cleaner II jobs, and 62, 000 laundry worker jobs in the national economy. (R. 47-48.) On cross-examination, the VE stated that if the hypothetical individual regularly missed two or more days of work per month, or had "only occasional use" of his non-dominant hand and arm, he would not be able to perform those jobs. (R. 49.)
IV. THE ALJ'S DECISION
A. Standards
A claimant is "disabled," and therefore eligible for benefits under the Act, if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). The impairments must be "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. § 423(d)(2)(A).
In her August 2, 2019 Decision, ALJ Wallis correctly set out the five-step sequential evaluation process used pursuant to 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)) to determine whether a claimant over the age of 18 is disabled within the meaning of the Act. (R. 10-13.) The Second Circuit has described the sequence as follows:
First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a "severe impairment" that significantly limits her physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1 . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (citation omitted); see also Cardoza v. Comm'r of Soc. Sec., 353 F.Supp.3d 267 (S.D.N.Y. 2019) (applying standard to applications for DIB and SSI).
If it is determined that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not progress to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). A claimant bears the burden of proof as to the first four steps; the Commissioner bears the burden at the fifth step. See Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). To support a finding that the claimant is not disabled at step five, the Commissioner must offer evidence demonstrating that other work exists in significant numbers in the national and local economies that the claimant can perform given his residual functional capacity (RFC), age, education, and relevant work experience. See 20 C.F.R. §§ 404.1512(b)(3), 404.1560(c), 416.912(b)(3), 416.960(c). In this Circuit, "the ALJ must call a vocational expert to evaluate a claimant's significant non-exertional impairments in order to meet the step five burden." Lacava v. Astrue, 2012 WL 6621731, at *18 (S.D.N.Y. Nov. 27, 2012) (citations omitted), report and recommendation adopted, 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012).
Prior to steps four and five, the ALJ must determine the claimant's RFC, based on all of the relevant medical and other evidence in the record, including the claimant's credible testimony, objective medical evidence, and medical opinions from treating and consulting sources. 20 C.F.R. §§ 404.1520(a), 404.1545(a)(3), 416.920(a), 416.945(a)(3). For disability claims filed on or after March 27, 2017 - including the claim at issue here - the ALJ does "not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s)." 20 C.F.R. §§ 404.1527c(a), 416.920c(a). Rather, the ALJ must evaluate the "persuasiveness" of each medical opinion in the record in light of (i) its "supportability," (ii) its "consistency," (iii) the "relationship" between the medical source and the claimant, (iv) the source's "specialization" in a relevant medical field, and (v) "other factors that tend to support or contradict a medical opinion or prior administrative medical finding." 20 C.F.R. §§ 404.1527c(c)(1)-(5), 416.920c(c)(1)-(5). Of these, the most important factors are "supportability" and "consistency." Id. §§ 404.1527c(b)(2), 416.920c(b)(2); see also Rivera v. Comm'r of the Soc. Sec. Admin., 2020 WL 8167136, at * 11 (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).
B. Application of Standards
In her Decision, the ALJ found that plaintiff met the insured status requirements of the Act through March 31, 2020. (R. 12.) She then found at step one that plaintiff had not engaged in substantial gainful activity since September 1, 2014, and at step two that he had the following severe impairments: "seizure disorder, left eye blindness, and a history of a cognitive disorder. (Id.) At step three, the ALJ found that plaintiff did not have any impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) Plaintiff does not challenge the ALJ's determinations at steps one through three.
Before proceeding to step four, the ALJ determined that plaintiff had the RFC to perform "a full range of work at all exertional levels," but with the following non-exertional limitations:
[T]he claimant should never climb ladders, ropes, or scaffolds and must avoid unprotected heights, hazardous machinery, and commercial driving. He is also limited to jobs that do not require fine binocular vision or fine depth perception". Furthermore, the claimant can understand, remember, and carry out simple tasks and job instructions and can have occasional interaction with supervisors, coworkers, and the general public. He can respond appropriately to routine changes in the work place, and is limited to jobs that do not require strict production quotas or production rate pace, but goal-oriented work is acceptable."
(R. 13.)
In the course of determining plaintiff's RFC, the ALJ concluded that plaintiff's medically determinable impairments could reasonably be expected to cause his alleged symptoms; "however, his statements concerning the intensity, persistence and limiting effects of these symptoms are not fully supported by the preponderance of the evidence of record." (R. 16.) In particular, the ALJ noted that "the available treatment notes indicate that the claimant's seizure disorder was very stable during the period of alleged disability, with no evidence of worsening in his seizure episodes between the time when he was working prior to late 2014 and the time after he stopped." (Id.) She added that while a video EEG from May 2015 "showed some abnormalities consistent with epilepsy, subsequent tests have been within normal limits," and observed that plaintiff has been "kept on the same medication and dosage at least since his new neurologist took over his care in April 2017." (Id.)
Turning to the opinion evidence, the ALJ "found persuasive" the opinions of Dr. Pradhan (who opined that plaintiff could not perform work activities that require full visual acuity, depth perception, and field of vision) and Dr. Helprin (who opined that he would have difficulty with activities of fine visual acuity and should avoid driving, operating motorized machinery, and being on unprotected heights and ladders). (R. 16.) The ALJ found these "limitations are very reasonable given the evidence of left eye blindness and the history of a seizure disorder, whether currently controlled or not." (Id.) The ALJ was also persuaded by Dr. Hennessey's opinion that plaintiff can understand, remember, and apply simple instructions and procedures; sustain attention to complete simple tasks; cope with basic workplace changes; and engage in routine interactions with others to meet basic work needs. (Id.) She reasoned that plaintiff's "history of traumatic brain injury, borderline performance at school, and his work experience are consistent with these observations." (Id.) By contrast, the ALJ rejected Dr. Hennessey's view that there were "no functional limitations in the claimant's abilities to meet the mental demands of competitive employment," concluding that "[t]his assessment does not adequately account for [plaintiff's] medical and educational history and is thus not persuasive." (Id.)
Finally, the ALJ considered the "statement" of plaintiff's treating neurologist, Dr. Salomon, "indicating limits to sedentary exertion and no capacity for 'participating in work activities at this time.'" (R. 17.) The ALJ concluded that this statement was unsupported by Dr. Salomon's own treatment notes, which repeatedly confirmed that plaintiff's seizure disorder was stable; that plaintiff reported being seizure-free or, "at most," reported "questionable seizure episodes at night"; and that he had required no changes in his anti-seizure medication or dosage since Dr. Salomon took over his care in mid-2017. (Id.) The ALJ also pointed out that Dr. Salomon did not explain what "specific symptoms render[ed] [plaintiff] unable to work." (Id.) ALJ Wallis concluded that Dr. Salomon's "statement is not persuasive without more evidence of abnormalities or uncontrolled problems." (Id.)
At step four, the ALJ found, based on the VE's testimony, that plaintiff could not perform his past relevant work as a "bagger." (R. 17.) Proceeding to step five, she found that considering plaintiff's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the plaintiff can perform. (R. 17-18.) Consequently, the ALJ concluded that plaintiff was not disabled at any time from May 15, 2017, through the date of the Decision. (R. 18.)
V. ANALYSIS
A. Standards of Review
Both parties have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). To prevail on such a motion, a party must establish that no material facts are in dispute and that she is entitled to judgment as a matter of law. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988); Claudio v. Commissioner of Social Security, 2017 WL 111741, at *1 (S.D.N.Y. Jan. 11, 2017). The law governing cases such as this is clear. The reviewing court "may set aside an ALJ's decision only where it is based upon legal error or where its factual findings are not supported by substantial evidence." McClean v. Astrue, 650 F.Supp.2d 223, 226 (E.D.N.Y. 2009) (citing Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998)); accord Longbardi v. Astrue, 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). Thus, the district court must first decide whether the Commissioner applied the correct legal standards. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). If there was no legal error, the court must determine whether the ALJ's decision was supported by substantial evidence. Tejada, 167 F.3d at 773; Calvello, 2008 WL 4452359, at *8.
"Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1970)). "In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Longbardi, 2009 WL 50140, at *21 (citing Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)). However, the reviewing court's task is limited to determining whether substantial evidence exists to support the ALJ's fact-finding; it may not reweigh that evidence or substitute its judgment for that of the ALJ where the evidence is susceptible of more than one interpretation. "[O]nce an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (emphasis in original) (quotation marks and citation omitted). The same standard applies to "inferences and conclusions drawn from such facts," Williams v. Colvin, 2015 WL 1223789, at *7 (S.D.N.Y. Mar. 17, 2015), which the reviewing court is obligated to accept if supported by substantial evidence. Id.; accord Marchand v. Sullivan, 1991 WL 183355, at *2 (S.D.N.Y. Sept. 11, 1991). Thus, the substantial evidence standard is "a very deferential standard of review - even more so than the 'clearly erroneous' standard." Brault, 683 F.2d at 448 (citation omitted); see also Brown v. Colvin, 73 F.Supp.3d 193, 198 (S.D.N.Y. 2014).
B. The Parties' Contentions
Plaintiff contends that the ALJ erred in her evaluation of the medical opinion evidence. In particular, plaintiff takes issue with the ALJ's determination that Dr. Salomon's opinions were "not persuasive" because they were not supported by her treatment notes and because she failed to explain what specific symptoms rendered plaintiff unable to work. Pl. Mem. (Dkt. No. 30) at 11. Plaintiff argues that the ALJ failed to provide "meaningful discussion" as to how Dr. Salomon's notes - which showed that plaintiff's seizure disorder was "stable" and did not require any medication changes - were "inconsistent" with her opinion. Id. at 12. More generally, plaintiff complains that ALJ Wallis improperly dismissed Dr. Salomon's opinion "in a conclusory manner," without a detailed discussion of its supportability and consistency. Id. (quoting Dany Z. v. Saul, 531 F.Supp.3d 871, 885 (D. Vt. 2021)). According to plaintiff, Dr. Salomon's opinion is in fact "well supported by, and consistent with, other medical evidence," Pl. Mem. at 12. As to supportability, plaintiff notes that Dr. Salomon treated plaintiff for "nearly two years." Id. As to consistency, he points out that Dr. Salomon, like other physicians who examined plaintiff, diagnosed him with cerebral palsy and seizure disorder, prescribed Trileptal, and noted his prior abnormal EEG. Id. at 12-13.
The Commissioner responds that the ALJ's determination is supported by substantial evidence, Def. Mem. (Dkt. No. 32) at 11-14, and that ALJ Wallis properly assessed Dr. Salomon's opinion, id. at 14-15. I agree with the Commissioner that the ALJ did not err in evaluating Dr. Salomon's bare-bones opinion; that her determination of plaintiff's RFC was based on substantial evidence; and therefore that the Commissioner's decision should not be disturbed by this Court.
C. ALJ Wallis Properly Assessed Dr. Salomon's Opinion
As noted above, the ALJ must evaluate the "persuasiveness" of each medical opinion in the record in light of its "supportability," its "consistency," the "relationship" between the medical source and the claimant, the source's "specialization" in a relevant medical field, and any "other factors that tend to support or contradict a medical opinion or prior administrative medical finding." 20 C.F.R. §§ 404.1527c(c)(1)-(5), 416.920c(c)(1)-(c)(5). Of these factors, the "most important" are supportability and consistency. As to supportability, the regulations provide: "The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be." Id. §§ 404.1527c(c)(1), 416.920c(c)(1). As to consistency: "The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be." Id. §§ 404.1527c(c)(2), 416.920c(c)(2). The ALJ need not discuss all of the factors described in the regulations, but must, as to each opinion or prior administrative medical finding, "explain how [he or she] considered the supportability and consistency factors." 20 C.F.R. §§ 404.1527c(b)(2), 416.920c(b)(2).
In discussing Dr. Salomon's two-page, check-the box opinion (apparently intended for a different agency under a different disability standard), ALJ Wallis adequately addressed both supportability and consistency. As to supportability, the ALJ noted, correctly, that "Dr. Solomon . . . has not explained what specific symptoms render the [plaintiff] unable to work." (R. 17.) Dr. Salomon stated that plaintiff had "seizures" (R. 387), but did not say when, how often, or how severe. Moreover, as discussed above, her own underlying treatment notes reflected that plaintiff was, for the most part, "seizure-free" during the approximately two-year period covered by those notes (R. 399, 402, 406, 410, 414), which may be why he "required no change in his anti-seizure medication or dosage since Dr. Salomon took over his care in mid-2017." (R. 17.) Similarly, nothing in her medical source statement, or in her underlying notes, explained why plaintiff - who reported a "moderate" activity level at his annual physical in 2017, including walking for exercise (R. 392) - was restricted to "sedentary" work. (R. 387.) If and to the extent Dr. Salomon believed that her generally mild clinical findings prevented plaintiff from lifting more than 10 pounds occasionally, or from standing/walking more than two hours per day, she failed to draw the connection. The ALJ was thus correct to conclude that Dr. Salomon's "statement is not persuasive without more evidence of abnormalities of uncontrolled problems." (R. 17.)
It appears that during plaintiff's July 25, 2017 visit Dr. Salomon reduced his Trileptal dosage from 450 mg twice a day to 300 mg twice a day, after which, on January 26, 2018, she reverted to the original dose of 450 mg twice a day. (R. 401, 404.)
Dr. Salomon consistently noted that plaintiff displayed "normal bulk and tone," strength of 4+/5 in both upper extremities (R. 397, 398, 400, 404, 408, 412), a "mild" ataxia in his gait, but no "appendicular ataxia on finger to nose testing." (R. 398, 401, 404, 408, 412.)
As to consistency, plaintiff is correct that Dr. Salomon, like many of the other physicians who examined plaintiff, diagnosed him with cerebral palsy, and seizure disorder. Pl. Mem. at 13. It is not the diagnosis that determines disability, however; it is the degree of functional impairment resulting from that diagnosis. See Colbert v. Comm'r of Soc. Sec., 313 F.Supp.3d 562, 581 (S.D.N.Y. 2018) ("A mere diagnosis . . . does not necessarily support a finding of limitations in a claimant's RFC.") (collecting cases). Only Dr. Salomon found that plaintiff had an ataxic gait.And only Dr. Salomon opined that his general exertional capacity, including his ability to sit, stand, and walk, was limited. Indeed, Dr. Figueroa, who performed a consultative neurological exam on plaintiff, observed that plaintiff's gait and stance were normal; that he demonstrated full muscle strength and normal sensation throughout his arms and legs; that his hand and finger dexterity was intact; and that he demonstrated full grip strength bilaterally. (R. 363-64.) Consequently, while Dr. Figeuroa assessed non-exertional limitations (no driving, operating motorized machinery, or unprotected heights and ladders, and no activities requiring "fine visual acuity") (R. 364), she did not find that plaintiff was subject to any exertional limitations at all. (Id.) In short, although the ALJ did not expressly use the label "inconsistent" when discussing Dr. Salomon's views, it is clear from the Decision that the opinion of plaintiff's current treating physician is an outlier, not only as to her patient's exertional capabilities but also as to the effect of his seizure disorder on his functional ability to meet the demands of employment. The ALJ thus did not err when concluding that Dr. Salomon's opinion was "not persuasive." (R. 17.)
Dr. Lancman and Dr. Figueroa expressly found to the contrary. (R. 297, 363.)
D. Substantial Evidence Supported the ALJ's RFC Determination
A claimant's RFC is the most he can do despite his limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); see also SSR 96-8p, 1996 WL 374184, at *4 (S.S.A. July 2, 1996). The ALJ must assess the claimant's RFC based on all the relevant medical and other evidence of record, taking into consideration the limiting effects of all the claimant's impairments. See SSR 96-8p, 1996 WL 374184, at *2, 5. The relevant evidence includes the claimant's medical history, "effects of treatment," reports of the claimant's daily activities, medical source statements, "effects of symptoms," and "[e]vidence from attempts to work," among other things. Id. at *5.
Regardless of how many medical source statements the ALJ receives - or the weight she assigns to them - the determination of the claimant's RFC is reserved to the ALJ, who is not required to accept, or follow, any one medical opinion. See Camille v. Colvin, 652 Fed.Appx. 25, 29 n.5 (2d Cir. 2016) (summary order) ("An ALJ may accept parts of a doctor's opinion and reject others."). "[I]t is the ALJ's prerogative to make an RFC assessment after weighing the evidence and the District Court may not reverse provided there is substantial evidence in the record to support her findings." Moronta v. Comm'r of Soc. Sec., 2019 WL 4805801, at *19 (S.D.N.Y. Sept. 30, 2019) (quoting Mitchell v. Astrue, 2010 WL 3070094, at *5 (W.D.N.Y. Aug. 4, 2010)). Indeed, because this issue is reserved to the Commissioner, a medical opinion to the effect that a claimant is "not capable of participating in work activities" (R. 387) is "inherently neither valuable nor persuasive," and may be disregarded by the ALJ. 20 C.F.R. §§ 404 1520b(c), 416.920b(c).
In this case, there is substantial evidence to support the ALJ's RFC determination, and hence her conclusion that plaintiff was not disabled. (R. 18.) Plaintiff's treating records, as noted above, demonstrate that his seizure disorder was stable and under good control from the alleged onset date forward, and that plaintiff has been for the most part "seizure free" since 2017. I note, in particular, that none of his post-onset date EEGs were abnormal. (R. 296, 310, 326-27.) Plaintiff has at most a mild right-sided weakness (observed by Dr. Salomon but not by other physicians) and a mildly ataxic gait (again, observed by Dr. Salomon only). These limitations - as well as his left eye blindness - are accounted for in the ALJ's RFC, which restricts plaintiff from climbing ladders, ropes, or scaffolds, requires him to avoid unprotected heights, hazardous machinery, and commercial driving, and limits him to "jobs that do not require fine binocular vision or fine depth perception." (R. 13.)
Plaintiff's treating and consultative records also show that his mental status examinations have been consistently unremarkable, except for his recent and remote memory skills and general fund of knowledge, which Dr. Helprin assessed as "impaired due to limited intellectual functioning." (R. 349.) Dr. Hennessy agreed with this assessment, opining that plaintiff could perform "simple work." (R. 59-60.) These deficits are also addressed in the RFC, which explains that plaintiff can "understand, remember, and carry out simple tasks and job instructions and can have occasional interaction with supervisors, co-workers, and the general public. (R. 62) He can respond appropriately to routine changes in the work place, and is limited to jobs that do not require strict production quotas or production rate pace, but goal-oriented work is acceptable." (R. 13 (emphasis added).)
To be sure, there is some evidence in the record that would support the conclusion that plaintiff had greater limitations than those the ALJ incorporated into her RFC determination. But that is not the test. "If the reviewing court finds substantial evidence to support the Commissioner's final decision, that decision must be upheld, even if substantial evidence supporting the claimant's position also exists." Johnson v. Astrue, 563 F.Supp.2d 444, 454 (S.D.N.Y. 2008). Having found that the ALJ's decision was free of legal error and supported by substantial evidence, I am required, under the "very deferential standard of review" that applies to ALJ fact-finding, to accept the Commissioner's RFC determination. Brault, 683 F.3d at 448; see also Blalock v. Berryhill, 2018 WL 6332896, at *14 (S.D.N.Y. Nov. 8, 2018) ("The existence of contrary evidence does not negate substantial evidence supporting the ALJ's decision.").
VI. CONCLUSION
For the reasons stated above, I respectfully recommend that plaintiff's motion (Dkt. No. 29) be DENIED, that the Commissioner's motion (Dkt. No. 31) be GRANTED, and that the case be DISMISSED.