Opinion
20-CV-7750 (GBD) (JLC)
01-25-2022
GERALDINE BROOKS, Plaintiff, v. KILOLO KIJAKAZI, [1] Commissioner, Social Security Administration, Defendant.
Honorable George B. Daniels, United States District Judge:
REPORT & RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
Plaintiff Geraldine Brooks seeks judicial review of a final determination by defendant Kilolo Kijakazi, the Acting Commissioner of the Social Security Administration, denying her application for disability insurance benefits and supplemental security income under the Social Security Act. The parties have cross-moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court recommends that Brooks' motion be granted to the extent it seeks remand for further administrative proceedings, and the Commissioner's cross-motion be denied.
I. BACKGROUND
A. Procedural History
On October 17, 2017, Brooks filed for Social Security Disability benefits (“SSD”) and Supplemental Security Income (“SSI”), alleging a disability onset date of January 1, 2007. Administrative Record (“AR”), Dkt. No. 17, at 161-77. Brooks claimed she was unable to work due to arm mobility problems, arm pain, anemia, mental problems, eye problems, high blood pressure, and a learning disability. Id. at 75-76.
The page numbers refer to the sequential numbering of the Administrative Record provided on the bottom right corner of the page, not the numbers produced by the Electronic Case Filing (“ECF”) System.
The Social Security Administration (“SSA”) denied Brooks' claims on December 14, 2017, and she subsequently requested a hearing before an Administrative Law Judge (“ALJ”) on January 10, 2018. Id. at 11, 110. On August 8, 2019, Brooks, represented by counsel, appeared before ALJ Lori Romeo. Id. at 31-72. In a decision dated October 24, 2019, the ALJ found Brooks to be not disabled and denied her claims. Id. at 11-23. Brooks sought review of the ALJ's decision by the Appeals Council on November 22, 2019. Id. at 158-59. Her request was denied on July 24, 2020, rendering the ALJ's decision final. Id. at 1-5.
Brooks timely commenced this action on September 21, 2020, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Complaint, (“Compl.”), Dkt. No. 1. The Commissioner answered Brooks' complaint by filing the administrative record on May 28, 2021. Dkt. No. 17. On August 13, 2021, Brooks moved for judgment on the pleadings and submitted a memorandum of law in support of her motion. Memorandum of Law in Support of Plaintiff's Motion for Judgment on the Pleadings (“Pl. Mem.”), Dkt. No. 20-4. The Commissioner cross-moved for judgment on the pleadings on October 25, 2021, and submitted a memorandum in support of her cross-motion. Notice of Cross-Motion, Dkt. No. 29; Memorandum of Law in Support of the Commissioner's Cross-Motion for Judgment on the Pleadings and in Response to Plaintiff's Motion (“Def. Mem.”), Dkt. No. 30. On November 15, 2021, Brooks submitted reply papers. Reply Memorandum of Law in Support of Plaintiff's Motion for Judgment on the Pleadings (“Pl. Reply”), Dkt. No. 33.
B. The Administrative Record
1. Brooks' Background
Brooks was born on May 13, 1971. AR at 36-37. She was 36 years old on her alleged onset date of disability. See Id. at 37, 161. At the time of the hearing, Brooks lived in Manhattan with her daughter. Id. at 37. Brooks has a learning disability and was in special education classes throughout her time in school. Id. at 46-47. She did not graduate from high school and did not obtain a GED. Id. at 47. Brooks has prior work history as a babysitter from January 1, 2007 until May 2018. See Id. at 37-39. In 2008, Brooks worked briefly as a cleaner, but left that job because she did not like being around crowds. Id. at 47.
Brooks was first diagnosed with psychiatric problems when she was approximately 17 years old and began treatment at Brightpoint Health in November 2017. Id. at 47-48; 370. Brooks claims she is unable to work due to the following medical problems: major depressive dis, bipolar disorder, schizoaffective disorder, generalized anxiety disorder, learning disorder, musculoskeletal pain of the right lower extremity, and closed fracture of the right shoulder. Id. at 431. Brooks further reports that she experiences auditory hallucinations that affect her ability to concentrate and that she has memory problems. Id. at 40, 44. The Court will briefly summarize the relevant medical evidence.
2. Relevant Medical Evidence
a. Treatment History
i. Mahbubul Islam, M.D. & Rawand Khader, M.D. - Primary Care Physicians
Dr. Mahbubul Islam began treating Brooks for her arm pain and mental health in October 2017 at Hudson River HealthCare (“HRH”). Id. at 581-84. Brooks' depression screening indicated that she had “severe depression.” Id. at 581. Dr. Islam noted that Brooks' examination was “abnormal” due to her chronic right shoulder pain. Id. at 583. Dr. Islam prescribed Naproxen for Brooks' shoulder pain and Zoloft for her depression. Id. at 614. Dr. Islam also recommended that Brooks receive assistance with personal care and light housekeeping tasks. Id. at 899.
Naproxen is a medication used to relieve pain, tenderness, swelling, and stiffness caused by osteoarthritis. Naproxen, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/meds/a681029.html (last visited January 21, 2022). Zoloft, the brand name for Setraline, is a medication used to treat depression and obsessive-compulsive disorder. Setraline, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/meds/a697048.html (last visited January 21, 2022).
On February 9, 2018, Brooks was seen by Dr. Islam for pain management due to pain in her right arm and leg. Id. at 390-91. Brooks complained of right knee pain at a level of 8 out of 10, worsened by climbing stairs. Id. at 390. Dr. Islam observed that Brooks' “affect/mood” was depressed. Id. at 391. Dr. Islam diagnosed primary osteoarthritis of the left knee and peripheral vascular disease. Id. Dr. Islam also completed a Home Care Referral on the same date, noting Brooks' right knee pain, severe osteoarthritis diagnosis, and chronic pain and recommending a personal aide and the use of a cane. Id. at 607, 609. During examinations conducted in May, June, and July 2018, Dr. Islam noted that Brooks continued to be depressed and to experience pain in her arm and upper extremity. Id. at 396-99 (May 29, 2018 examination); 400-01 (June 25, 2018 examination); 544-45 (July 25, 2018 examination).
As noted in Brooks' motion papers, Dr. Islam's reference to the left knee was likely a typographical error. See Pl. Mem. at 12 (citing AR at 607-10, 891-94). Peripheral vascular disease (“PVD”) is a “slow and progressive circulation disorder” that can be caused by the “narrowing, blockage, or spasms in a blood vessel.” Peripheral Vascular Disease, Johns Hopkins Medicine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/peripheral-vascular-disease (last visited January 21, 2022).
During September 2018, Brooks was examined by Dr. Rawand Khader, M.D. for her right arm pain. Id. at 536-37. On September 13, 2018, Brooks complained of right arm pain with an intensity of 8 out of 10. Id. at 536. She reported that she could not get dressed and described the pain as “burning, aching [and] radiat[ing].' Id. Brooks noted that she took Percocet she received from her boyfriend to help alleviate the pain, and that she previously underwent physical therapy. Id. Dr. Khader diagnosed “[c]hronic, continuous use of opioids” and “[r]ight arm pain” and prescribed Mobic and Gabapentin to treat Brooks' pain. Id. at 537. On September 26, Brooks submitted to a CT scan of her right elbow (recommended by Dr. Khader) which revealed two screws in part of Brooks' bone. Id. at 601. The following day, Brooks again complained to Dr. Khader of constant right arm pain with an intensity of 6 out of 10 and burning and aching. Id. at 534. She also reported taking Endocet she received from her boyfriend to help alleviate the pain. Id. Dr. Khader prescribed Tramadol for Brooks' right arm pain. Id. at 535.
Percocet is a type of oxycodone medication used to relieve moderate to severe pain. Oxycodone, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/meds/a682132.html (last visited January 21, 2022).
Mobic (the brand name for Meloxicam) is a medication used to relieve pain, tenderness, swelling, and stiffness caused by osteoarthritis. Meloxicam, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/meds/a601242.html (last visited January 21, 2022). Gabapentin is a medication used to control seizures and relieve burning and stabbing pain or aches. Gabapentin, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/meds/a694007.html (last visited January 21, 2022).
Endocet is a type of oxycodone medication used to relieve moderate to severe pain. Oxycodone, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/meds/a682132.html (last visited January 21, 2022).
Tramadol is a medication used to relieve moderate to moderately severe pain. Tramadol, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/meds/a695011.html (last visited January 21, 2022).
On October 11, 2018, Brooks complained to Dr. Khader that the Tramadol “[wasn't] working” and that she was experiencing arm pain with an intensity of 6 out of 10 and burning and aching. Id. at 330. Dr. Khader refilled Brooks' Tramadol, Mobic, and Gabapentin prescriptions. Id. at 331.
In January 2019, Brooks continued to complain of right arm pain with an intensity of 6 out of 10 and burning and aching to Dr. Khader. Id. at 301, 409. In response, Dr. Khader prescribed Celebrex and Percocet. Id. at 302, 410. On February 7, 2019, Dr. Khader reaffirmed his assessment of chronic, continuous use of opioids, closed fracture of right shoulder, and osteoarthritis. Id. at 414.
Celebrex, the brand name for Celecoxib, is a medication used to relieve pain, tenderness, swelling, and stiffness caused by osteoarthritis. Celecoxib, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/meds/a699022.html (last visited January 21, 2022).
In an April 10, 2019 progress note, Dr. Islam noted that Brooks was “positive” for joint pain, muscle pain, morning stiffness, and joint swelling, as well as for anxiety, depression, and sleep disturbance. Id. at 416. Dr. Islam also noted that Brooks' extremities had a decreased range of motion. Id. at 417.
ii. Leronda Decamp, Nurse Practitioner -Psychiatric
Leronda Decamp, a nurse practitioner at Brightpoint Health, began treating Brooks in November 2017 after Dr. Islam referred Brooks for a comprehensive psychiatric assessment. Id. at 370. Brooks reported that she had been feeling depressed for the past two years and was experiencing feelings of hopelessness, lack of energy, lack of interest, fatigue, and difficulty with concentration. Id. Brooks stated that she had experienced depression after the death of her father as a child and that she had been physically abused by her ex-husband. Id. Brooks also reported a history of “mania/hypomania” consisting of racing thoughts, impulsive pleasure-seeking but self-destructive behavior, inability to sleep, psychomotor agitation, irritability, feelings of guilt and worthlessness, and reduced concentration “from baseline.” Id. at 573. Brooks further reported anxiety, restlessness, muscle tension, and a history of trauma. Id. During her mental status examination, Nurse Decamp noted that Brooks' “affect/mood” was “depressed, ” diagnosed her with Major Depressive Disorder, recurrent, and prescribed Prozac. Id. at 574.
Prozac, the brand name for Fluoxetine, is a medication used to treat depression, obsessive-compulsive disorder, and panic attacks. Fluoxetine, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/meds/a689006.html (last visited January 21, 2022).
At a follow up appointment on December 6, 2017, Brooks reported that she felt depressed, experienced mood swings, and that she had not “felt any changes with the medication.” Id. at 382. Brooks also reported that according to her boyfriend, she became violent and threw objects in her home because no one attended her Thanksgiving dinner (although Brooks herself did not personally recall this). Id. Nurse Decamp noted in her mental status exam that Brooks' “affect/mood” was “depressed” and increased Brooks' prescription for Prozac and prescribed Seroquel (Quetiapine Fumarate). Id. at 383.
Seroquel, the brand name for Quetiapine, is a medication used to treat symptoms of schizophrenia, mania, or depression in patients with bipolar disorder. Quetiapine, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/meds/a698019.html (last visited January 21, 2022).
On January 11, 2018, Brooks saw Nurse Decamp for medication management because she had run out of medication and was reporting auditory hallucinations and continued feelings of depression. Id. at 385. Nurse Decamp noted in her mental status exam that Brooks' “affect/mood” was “depressed” and discontinued Brooks' Prozac prescription and instead prescribed Zoloft. Id. at 385-86. At a subsequent visit on February 8, 2018, Brooks reported that she had been complying with her medications and had not experienced auditory hallucinations, felt less depressed, and that her mood was “a little better.” Id. at 388-89. Brooks further reported that she had seen “a change in her behavior since she started taking new medication and the increase of her old medication.” Id. Notwithstanding these reported improvements, Nurse Decamp's mental status examination noted that Brooks' “affect/mood” continued to be “depressed.” Id.
On August 7, 2018, Brooks reported feeling depressed and having mood swings after running out of medication. Id. at 403. Brooks noted that she was “out of medication for a while and [was] feeling symptomatic” and that she sees a change in her behavior when she takes medication. Id. Brooks also reported that she only attends therapy sporadically but wished to continue. Id. In her mental status examination, Nurse Decamp noted that Brooks' “affect/mood” was “sad, worried, [and] labile.” Id. at 404.
On September 5, 2018, Brooks reported feeling depressed, having mood swings, and “scream[ing] a lot.” Id. at 538. Brooks also reported that she was taking her medication sporadically and that she sees a change in her behavior when she is compliant with her medication. Id. In her mental status examination, Nurse Decamp noted that Brooks was disheveled and her “affect/mood” was sad, worried, and labile. Id. at 538-39. Nurse Decamp also increased Brooks' prescription for Seroquel. Id. at 538.
On October 18, 2018, Nurse Decamp noted that Brooks appeared disheveled, worried, and with a labile mood. Id. at 325-26. Brooks reported that she was compliant with her medications but continued to feel depressed and have mood swings. Id. at 325. In response, Nurse Decamp increased Brooks' medication. Id. at 326. A month later, in November 2018, Brooks reported feeling less depressed and experiencing fewer mood swings since the increase in her medication. Id. at 314. Nurse Decamp noted that Brooks' appearance was disheveled and her “affect/mood” was sad, worried, and labile. Id. at 315. Similarly, in December 2018, Brooks reported that she was partially compliant with her medication and had improved, but nevertheless remained depressed and experienced mood swings (albeit fewer than before). Id. at 304. Nurse Decamp noted that Brooks continued to appear disheveled with a sad, worried, and labile affect and mood. Id. at 306.
During an April 11, 2019 visit, Brooks reported feeling depressed, having mood swings, and experiencing daily auditory hallucinations. Id. at 418. Brooks admitted that her compliance with medication had been sporadic. Id. Nurse Decamp noted that Brooks' affect and mood were depressed. Id. at 419. Similarly, on May 14, 2019, Brooks reported that she was out of medication, felt depressed, was experiencing mood swings and daily auditory hallucinations, and was “scream[ing] a lot.” Id. at 486. Nurse Decamp once again assessed Brooks' affect/mood as “depressed” and continued her medication. Id. at 487-88. On June 11, 2019, Brooks reported that she was compliant with her medication and was feeling less depressed and experiencing fewer mood swings. Id. at 424. Nurse Decamp once again assessed Brooks' affect/mood as “depressed” and continued her medication. Id. at 425-26.
In her August 26, 2019 “Medical Source Statement, ” Nurse Decamp stated that Brooks was diagnosed with bipolar disorder and depression and that she had received treatment for these conditions since November 2017. Id. at 702, 709. Nurse Decamp noted that Brooks' psychiatric condition rendered her unable to perform any work activity. Id. at 702-03. In her assessment of Brooks' functioning, Nurse Decamp reported that Brooks “has difficulty understanding information” and “may not be able to multi-task or solve complex problems.” Id. at 704. Nurse Decamp also noted that Brooks “suffers from mood swings and may have difficulty cooperating with others” and has “difficulty focusing.” Id. at 704-05. She also noted that Brooks “may have difficulty regulating emotions and controlling behavior.” Id. In her assessment of Brooks' mental status, Nurse Decamp noted Brooks' disheveled appearance and poor hygiene as well as her pressured and slow speech. Id. at 705-06. Nurse Decamp reported that Brooks had “marked” limitations in (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing herself. Id. at 706. Specifically, Nurse Decamp reported that Brooks had “marked” limitations in (1) responding to ordinary work pressure; (2) understanding, remembering, and carrying out instructions; (3) responding to other workers or supervisors appropriately; (4) responding to supervision appropriately; (5) meeting work production, quality, and attendance standards; (6) doing routine, repetitive, simple tasks in a normal work setting; (7) doing complex or varied, changing work; and (8) performing work in a non-sheltered setting. Id. at 707. Nurse Decamp also estimated that Brooks would be off task more than 20% of a typical workday. Id. at 708.
b. Opinion Evidence
i. Non-Examining Consultative Opinions
In November and December 2017, Drs. Saeed, M.D., and D'Ortona, a psychiatrist, completed initial assessments regarding Brooks' physical and mental limitations based on their review of Brooks' medical records and without conducting their own examinations of Brooks. AR at 75-85. On November 29, 2017, Dr. D'Ortona reported that although Brooks had moderate limitations in her ability to maintain attention and concentration, carry out detailed instructions, and respond appropriately to changes in the work setting, she retained “the ability to perform the basic mental demands of unskilled work.” Id. at 81-83. On December 14, 2017, Dr. Saeed, who evaluated Brooks' physical impairments, reported that Brooks had a full range of motion of all joints, no sensory deficits, and full strength. Id. at 78.
ii. Gladys Frankel, Ph.D. - Consultative Psychologist
On November 21, 2017, Dr. Gladys Frankel evaluated Brooks' diagnosis and psychiatric and psychological impairment levels. Id. at 279-83. Brooks reported that she receives psychiatric treatment once a month, was about to begin group therapy sessions, and sees a counselor every two weeks. Id. at 279. Her reported symptoms included difficulty falling asleep, dysphoric mood, crying spells, irritability, fatigue, loss of energy and interest, low self-esteem, and difficulty concentrating. Id. Brooks also reported a history of physical and mental abuse by her ex-husband. Id. at 280. Brooks' other psychiatric symptoms included auditory hallucinations-, short- and long-term memory deficits, difficulty learning new material, and organization difficulties. Id.
After her mental status examination, Dr. Frankel ruled out a diagnosis of specific learning disorder and schizoaffective disorder, but diagnosed unspecified depressive disorder and noted that the “expected duration of impairment” would be more than one year. Id. at 282-83. Dr. Frankel opined that while Brooks' demeanor was cooperative and her overall presentation was adequate, id. at 280, her attention, concentration, and recent and remote memory skills were impaired and her intellectual functioning was below average. Id. at 281. Dr. Frankel noted that these mental status exam results were “consistent with [Brooks'] vocational history.” Id. Dr. Frankel also observed that Brooks was not independent with regard to activities of daily functioning due to her arm pain, and that her daughter had to help her with dressing, bathing, and grooming herself. Id. at 281-82.
Dr. Frankel noted that Brooks had no limitations in her ability to: (1) understand, remember, or apply simple directions and instructions; (2) sustain “an ordinary routine and regular attendance at work; (3) be aware of “normal hazards and [take] appropriate precautions”; and (4) regulate emotions, control behavior, and maintain well-being. Id. at 282. Dr. Frankel further observed that Brooks had moderate limitations in her ability to: (1) understand, remember, or apply “complex directions and instructions”; (2) use “reason and judgment to make work-related decisions”; and (3) sustain “concentration and perform a task at a consistent pace.” Id. at 282. Lastly, Dr. Frankel concluded that Brooks had only mild limitations in her ability to: (1) maintain personal hygiene and appropriate attire; and (2) interacting “adequately with supervisors, coworkers, and the public. Id. Dr. Frankel concluded that the results of her exams appeared “to be consistent with psychiatric and cognitive problems” that “may significantly interfere with [Brooks'] ability to function on a daily basis.” Id.
iii. Aurelio Salon, M.D. - Consultative Examiner
Dr. Aurelio Salon conducted an internal medicine examination on November 21, 2017. Id. at 285-88. During this examination, Brooks' chief complaint was her “broken elbow, mental problems, depression, learning disability, hypertension, and anemia.” Id. at 285. Brooks reported that she had fractured her right elbow “about 5 to 6 years ago” and experienced elbow pain daily with an intensity of 8 out of 10 or 9 out of 10. Id. at 285. Brooks also reported that her children manage the household chores and that she can shower, bathe, and dress herself, but sometimes needs help from her daughter. Id. at 286. Dr. Salon noted that Brooks was obese but “appears to be in no acute distress.” Id. Dr. Salon concluded that based on Brooks' history and physical examination, Brooks had no restrictions on her ability to sit, stand, climb, push, pull, or carry heavy objects. Id. at 287.
iv. David Schaich, Psy.D. - Consultative Psychologist
Dr. David Schaich evaluated Brooks on January 29, 2019. Id. at 357-64. He reported that Brooks was “cooperative” but that her manner of relating, social skills, and overall presentation were “poor”, and she was “poorly related due to psychosis.” Id. at 357-58. Brooks' speech was reportedly fluent and clear, but her thought processes were “marked by tangental [sic] thoughts, loose associations, and benign auditory hallucinations.” Id. at 358. Brooks' attention and concentration were impaired due to “intellectual difficulties and thought difficulties.” Id. at 359. In addition, Brooks' recent and remote memory skills were intact, but her cognitive functioning appeared to be borderline and her general fund of information was limited. Id. at 359. Dr. Schaich further noted that Brooks' insight was limited and her judgment was poor. Id.
Dr. Schaich diagnosed Brooks with specific learning disorder, schizoaffective disorder (bipolar type), and generalized anxiety disorder. Id. at 360. Dr. Schaich found “marked” limitations in Brooks' ability to (1) make judgments on complex work-related decisions; (2) interact appropriately with supervisors, coworkers, and the public; (3) respond appropriately to usual work situations and to changes in a routine work setting; and (4) regulate emotions, control behavior, and maintain well-being. Id. at 359, 363. Dr. Schaich found “moderate” limitations in Brooks' ability to (1) sustain concentration and perform a task at a consistent pace, and (2) sustain an ordinary routine and regular attendance at work. Id. at 359. However, Dr. Schaich's mental evaluation showed no evidence of limitation in Brooks' ability to understand, remember, and apply simple or complex directions or to maintain personal hygiene. Id. at 359-60. Dr. Schaich concluded that the results of his examination “appear to be consistent with psychiatric and cognitive problems” and that Brooks' limitations “may significantly interfere with [her] ability to function on a daily basis.” Id. at 360.
v. Ram Ravi, M.D. - Consultative Examiner
Dr. Ram Ravi completed an internal medicine examination of Brooks on January 29, 2019. Id. at 346. Brooks complained of “sharp and constant” right and left shoulder pain with an intensity of 9 out of 10. Id. at 346. Dr. Ravi diagnosed Brooks with right and left shoulder pain. Id. at 348. Dr. Ravi found “moderate” limitations in Brooks' ability to stand and walk. Id. Dr. Ravi found “marked” limitations in her ability to push, pull, lift, and carry. Id. Specifically, Dr. Ravi found that Brooks could only lift or carry up to ten pounds “occasionally.” Id. at 350. Dr. Ravi further found that Brooks could never reach in any direction or handle, finger, feel, and push/pull with her right hand and could only reach in any direction and push/pull with her left hand occasionally. Id. at 352. Dr. Ravi also noted that Brooks was limited from activities requiring fine manipulation and should avoid bending due to her right and left shoulder pain. Id. Dr. Ravi concluded by stating that Brooks could never sort, handle, or use papers and files. Id. at 355.
3. ALJ Hearing
On August 8, 2019, Brooks, represented by counsel, appeared before the ALJ. Id. at 29. In a pre-hearing letter dated July 31, 2019, counsel argued that Brooks had the following “severe and significant medical problems”: major depressive disorder, bipolar disorder, schizoaffective disorder, generalized anxiety disorder, learning disorder, musculoskeletal pain of the right lower extremity, and closed fracture of the right shoulder. Id. at 431. Brooks' counsel specifically cited the reports of Drs. Frankel and Schaich to demonstrate that Brooks' impairments severely impacted “her ability to function in any work environment from the alleged onset date through the present time.” Id. at 432.
At the hearing, Brooks' counsel moved to amend the onset date of disability from January 1, 2007 to May 31, 2018. AR at 41. However, the ALJ did not formally amend the disability onset date, although her decision reflects an understanding that Brooks had worked intermittently from the early 2000s through May 31, 2018. See, e.g., AR at 14. Therefore, for the purposes of the parties' cross-motions, the Court will assume that Brooks' disability onset date is January 1, 2007, with the understanding that Brooks worked intermittently until May 31, 2018.
During the hearing, Brooks testified that she completed the 11th grade, but did not graduate from high school. Id. at 37, 47. Brooks stated that she was in special education classes for her entire education and did not receive a GED because she “couldn't understand it.” Id. at 47. She further testified that she can read “a little bit” and can write. Id. Brooks then testified about her past work experience. Id. Most recently, Brooks worked as a babysitter from January to May 2018, id. at 38, but had to leave that job because of auditory hallucinations that impacted her ability to concentrate. Id. at 40. Around 2008, Brooks had a temp position doing “clean up, ” but could not continue that work because there were “too many people” and she disliked “being around crowds.” Id. at 47. Brooks testified that although her medication helped with stress and anger and controlled the “voices, ” she was still depressed and had difficulty sleeping and controlling her emotions. Id. at 47, 51-52. Moreover, Brooks testified that she had memory problems, and had trouble concentrating and understanding things. Id. at 44, 53. Brooks stated that she has trouble completing a sentence or cooking and maintaining interest in activities. Id. at 53-54. Brooks further described the symptoms of her anxiety, saying that she does not like to leave her home or be around anyone. Id. at 54. When traveling to medical appointments, she would leave her home early so that she could avoid being around others and would be accompanied by a relative because she did not want to be alone. Id. at 55. Brooks stated that she generally stays home and watches television or listens to music. Id. at 55-56. She also testified that she had a boyfriend whom she met online with the help of a friend, id. at 55, but that they were no longer in a relationship. Id. at 57.
With respect to her physical limitations, Brooks testified that in approximately 2018, she fractured her right arm during a fight with her boyfriend. Id. at 56. Brooks reported that she could not lift her right arm overhead. Id. at 60. She further testified that while she could lift her right arm in front of her, it hurt to do so. Id. At one point, Brooks took Percocet to manage the pain. Id. at 60-61. Brooks also stated that she underwent physical therapy for a period, which helped her arm pain a bit, but could not recall why she stopped attending. Id. The ALJ next questioned vocational expert Don Schader. Id. at 64-70. Schader explained that Brooks' past work experience would be classified as a security guard, which Brooks performed at the light level based on her testimony. Id. at 66. Schader also testified that Brooks' previous work as a babysitter would be classified as a child monitor, which Brooks performed at a medium level based on her testimony. Id. at 67. The ALJ then described a hypothetical individual of Brooks' same age, education, and work experience who is limited to work at the light exertional level, could not lift her arm above her head, would be limited to unskilled labor, could not work with the public, and could have only occasional and casual contact with co-workers. Id. at 68. Schader concluded that, based on these conditions, this hypothetical individual would not be able to perform Brooks' past work as a security guard or child monitor. Id. Schader then testified that such an individual would be able to hold the positions of assembler (small products), marking clerk, or bench assembler. Id. at 68-69. However, he noted that a person who was limited to simple, one or two-step tasks and who could not follow written instructions could not perform the jobs cited. Id. at 69-70. Schader further testified that employers for these jobs would only tolerate being “off task” for 10 percent of the day and likely would not allow more than one absence per month. Id. at 70.
As noted in Brooks' motion papers, the timing of Brooks' right arm fracture is unclear, given that medical notes from 2017 refer to Brooks' right arm fracture. See Pl. Mem. at 5 n.2; Pl. Reply at 8.
II. DISCUSSION
A. Legal Standards
1. Judicial Review of the Commissioner's Decision
An individual may obtain judicial review of a final decision of the Commissioner “in the district court of the United States for the judicial district in which the plaintiff resides.” 42 U.S.C. § 405(g). The district court must determine whether the Commissioner's final decision applied the correct legal standards and whether the decision is supported by “substantial evidence.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004). “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.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks and alterations omitted); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (“Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations . . . whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high.” (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938))).
The substantial evidence standard is a “very deferential standard of review.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012). The Court “must be careful not to substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result upon a de novo review.” DeJesus v. Astrue, 762 F.Supp.2d 673, 683 (S.D.N.Y. 2011) (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)) (internal quotation marks and alterations omitted). “[O]nce an ALJ finds facts, [a court] can reject those facts ‘only if a reasonable factfinder would have to conclude otherwise.'” Brault, 683 F.3d at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)) (emphasis omitted).
In weighing whether substantial evidence exists to support the Commissioner's decision, “the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Selian, 708 F.3d at 417 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)). On the basis of this review, the court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding . . . for a rehearing.” 42 U.S.C. § 405(g). However, “[w]hen there are gaps in the administrative record or the ALJ has applied an improper legal standard, [the court has], on numerous occasions, remanded to the [Commissioner] for further development of the evidence.” Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)) (alteration in original).
2. Commissioner's Determination of Disability
Under the Social Security Act, “disability” is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A); see also Colgan v. Kijakazi, 2022 WL 18502, at *2 (2d Cir. Jan. 3, 2022). Physical or mental impairments must be “of such severity that [the claimant] 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), 1382c(a)(3)(B).
In assessing a claimant's impairments and determining whether they meet the statutory definition of disability, the Commissioner “must make a thorough inquiry into the claimant's condition and must be mindful that ‘the Social Security Act is a remedial statute, to be broadly construed and liberally applied.'” Mongeur, 722 F.2d at 1037 (quoting Gold v. Sec'y of H.E.W., 463 F.2d 38, 41 (2d Cir. 1972)). Specifically, the Commissioner's decision must consider factors such as: “(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience.” Id. (citations omitted).
a. Five-Step Inquiry
“The Social Security Administration has outlined a ‘five-step, sequential evaluation process' to determine whether a claimant is disabled[.]” Estrella v. Berryhill, 925 F.3d 90, 94 (2d Cir. 2019) (citations omitted); 20 C.F.R. § 404.1520(a)(4). First, the Commissioner must establish whether the claimant is presently employed. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is unemployed, the Commissioner goes to the second step and determines whether the claimant has a “severe” impairment restricting his or her ability to work. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant has such an impairment, the Commissioner moves to the third step and considers whether the medical severity of the impairment “meets or equals” a listing in Appendix One of Subpart P of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is considered disabled. Id.; 20 C.F.R. § 404.1520(d).
If the claimant alleges a mental impairment, the Commissioner must apply a “special technique” to determine the severity of the claimant's impairment at step two, and to determine whether the impairment satisfies Social Security regulations at step three. See 20 C.F.R §§ 404.1520a, 416.920a; see also Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). “If the claimant is found to have a ‘medically determinable mental impairment,' the [Commisioner] must ‘specify the symptoms, signs, and laboratory findings that substantiate the presence of the impairment(s),' then ‘rate the degree of functional limitation resulting from the impairment(s) in accordance with paragraph (c) of [Sections 404.1520a, 416.920a],' which specifies four broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence or pace; and (4) episodes of decompensation.” Velasquez v. Kijakazi, No. 19-CV-9303 (DF), 2021 WL 4392986, at *18 (S.D.N.Y. Sept. 24, 2021) (quoting 20 C.F.R. §§ 404.1520a(b), (c)(3); id. §§ 416.920a(b), (c)(3)). “The functional limitations for these first three areas are rated on a five-point scale of none, mild, moderate, marked, or extreme, and the limitation in the fourth area (episodes of decompensation) is rated on a four-point scaled of none, one or two, three, or four or more.” Id. (cleaned up). If the claimant's impairment does not meet or equal a listed impairment, then the Commissioner continues to the fourth step and determines whether the claimant has the residual functional capacity (“RFC”) to perform his or her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). Finally, if the claimant does not have the RFC to perform past relevant work, the Commissioner completes the fifth step and ascertains whether the claimant possesses the ability to perform any other work. 20 C.F.R. § 404.1520(a)(4)(v).
The claimant has the burden at the first four steps. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). If the claimant is successful, the burden shifts to the Commissioner at the fifth and final step, where the Commissioner must establish that the claimant has the ability to perform some work in the national economy. See, e.g., Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).
b. Duty to Develop the Record
“Social Security proceedings are inquisitorial rather than adversarial.” Sims v. Apfel, 530 U.S. 103, 110-11 (2000). Consequently, “the social security ALJ, unlike a judge in a trial, must on behalf of all claimants . . . affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation marks omitted). As part of this duty, the ALJ must “investigate the facts and develop the arguments both for and against granting benefits.” Sims, 530 U.S. at 111. Specifically, under the applicable regulations, the ALJ is required to develop a claimant's complete medical history. Pratts, 94 F.3d at 37 (citing 20 C.F.R. §§ 404.1512(d)-(f)). This responsibility “encompasses not only the duty to obtain a claimant's medical records and reports but also the duty to question the claimant adequately about any subjective complaints and the impact of the claimant's impairments on the claimant's functional capacity.” Pena v. Astrue, No. 07-CV-11099 (GWG), 2008 WL 5111317, at *8 (S.D.N.Y. Dec. 3, 2008) (citations omitted). Whether the ALJ has satisfied this duty to develop the record is a threshold question. Before determining whether the Commissioner's final decision is supported by substantial evidence under 42 U.S.C. § 405(g), “the court must first be satisfied that the ALJ provided plaintiff with ‘a full hearing under the Secretary's regulations' and also fully and completely developed the administrative record.” Scott v. Astrue, No. 09-CV-3999 (KAM) (RLM), 2010 WL 2736879, at *12 (E.D.N.Y. July 9, 2010) (quoting Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)); see also Rodriguez ex rel. Silverio v. Barnhart, No. 02-CV-5782 (FB), 2003 WL 22709204, at *3 (E.D.N.Y. Nov. 7, 2003) (“The responsibility of an ALJ to fully develop the record is a bedrock principle of Social Security law.” (citing Brown v. Apfel, 174 F.3d 59 (2d Cir. 1999))). The ALJ must develop the record even where the claimant has legal counsel. See, e.g., Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). Remand is appropriate where this duty is not discharged. See, e.g., Moran, 569 F.3d at 114-15 (“We vacate not because the ALJ's decision was not supported by substantial evidence but because the ALJ should have developed a more comprehensive record before making his decision.”).
c. Evaluation of Medical Opinion Evidence
“Regardless of its source, the ALJ must evaluate every medical opinion in determining whether a claimant is disabled under the [Social Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. §§ 404.1527(d), 416.927(d)) (internal quotation marks omitted). For SSI and SSDI applications filed prior to March 27, 2017, SSA regulations set forth the “treating physician rule, ” which required an ALJ to give more weight to the opinions of physicians with the most significant clinical relationship with the plaintiff. 20 C.F.R. §§ 404.1527(c)(2); 416.927(d)(2); see also, e.g., Taylor v. Barnhart, 117 Fed.Appx. 139, 140 (2d Cir. 2004). Under the treating physician rule, an ALJ was required to give “good reasons, ” 20 C.F.R. § 404.1527(c)(2), if she determined that a treating physician's opinion was not entitled to “controlling weight, ” or at least “more weight, ” than the opinions of non-treating and non-examining sources. Gonzalez v. Apfel, 113 F.Supp.2d 580, 588 (S.D.N.Y. 2000). In addition, a consultative physician's opinion was generally entitled to “little weight.” Giddings v. Astrue, 333 Fed.Appx. 649, 652 (2d Cir. 2009).
However, in January 2017, the SSA revised its regulations regarding the evaluation of medical opinion for claims filed on or after March 27, 2017 (such as Brooks' claim in this case). See Revisions to the Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844, 5869-70 (Jan. 18, 2017). “In implementing new regulations, the SSA has apparently sought to move away from a perceived hierarchy of medical sources.” Velasquez, 2021 WL 4392986, at *19 (citing 82 Fed.Reg. 5844). The new regulations state that an ALJ need “not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources.” Id. (quoting 20 C.F.R. §§ 404.1520c(a), 416.1520c(a)). “Instead, an ALJ is to consider all medical opinions in the record and ‘evaluate their persuasiveness' based on the following five ‘factors': (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) any ‘other' factor that ‘tend[s] to support or contradict a medical opinion.'” Id. (quoting 20 C.F.R. §§ 404.1520c(a)-(c), 416920c(a)-(c)).
Notwithstanding the requirement to “consider” all of these factors, the ALJ's duty to articulate a rationale for each factor varies. 20 C.F.R. §§ 404.1520c(a)-(b), 416920c(a)-(b). Under the new regulations, the ALJ must “explain how [she] considered” both the supportability and consistency factors, as they are “the most important factors.” 20 C.F.R. §§ 404.1520c(b)(2), 416.1520c(b)(2); see also, e.g., Amber H. v. Saul, No. 20-CV-490 (ATB), 2021 WL 2076219, at *4 (N.D.N.Y. May 24, 2021) (two “most important factors for determining the persuasiveness of medical opinions are consistency and supportability, ” which are the “same factors” that formed foundation of treating physician rule). With respect to the supportability factor, “the strength of a medical opinion increases as the relevance of the objective medical evidence and explanations presented by the medical source increase.” Vellone v. Saul, No. 20-CV-261 (RA) (KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021) (citing 20 C.F.R. §§ 404 1520c(c)(1), 416.920c(c)(1)), adopted sub nom. Vellone on behalf of Vellone v. Saul, 2021 WL 2891138 (July 6, 2021). Consistency, on the other hand, “is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record.” Id. (citing 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2)); see generally 42 U.S.C. § 423(d)(5)(B) (requiring ALJ to base decision on “all the evidence available in the [record]”).
In addition, under the new regulations, the ALJ is required to consider, but need not explicitly discuss, the three remaining factors (relationship with the claimant, specialization, and other factors tending to support or contradict a medical opinion). See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). “Where, however, the ALJ has found two or more medical opinions to be equally supported and consistent with the record, but not exactly the same, the ALJ must articulate how [she] considered those three remaining factors.” Velasquez, 2021 WL 4392986, at *20 (citing 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3)).
Courts considering the application of the new regulations have concluded that “the factors are very similar to the analysis under the old [treating physician] rule.” Id. (quoting Dany Z. v. Saul, 531 F.Supp.3d 871, 885 (D. Vt. 2021)); see also Acosta Cuevas v. Comm'r of Soc. Sec., No. 20-CV-502 (AJN) (KHP), 2021 WL 363682, at *9 (S.D.N.Y. Jan. 29, 2021) (report and recommendation) (collecting cases considering new regulations and concluding that “the essence” of the treating physician rule “remains the same, and the factors to be considered in weighing the various medical opinions in a given claimant's medical history are substantially similar”). “This is not surprising considering that, under the old rule, an ALJ had to determine whether a treating physician's opinion was supported by well-accepted medical evidence and not inconsistent with the rest of the record before controlling weight could be assigned.” Acosta Cuevas, 2021 WL 363682, at *9; see also e.g., Andrew G. v. Comm'r of Soc. Sec., No. 19-CV-942 (ML), 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (“consistency and supportability” were foundation of treating physician rule); Brianne S. v. Comm'r of Soc. Sec., No. 19-CV-1718 (FPG), 2021 WL 856909, at *5 (W.D.N.Y. Mar. 8, 2021) (remanding to ALJ with instructions to provide discussion of supportability and consistency of two medical opinions and explaining that ALJ may not merely state that examining physician's opinion is inconsistent with overall medical evidence).
Importantly, “an ALJ's failure to apply the correct legal standard constitutes reversible error if that failure might have affected the disposition of the case.” Lopez v. Berryhill, 448 F.Supp.3d 328, 341 (S.D.N.Y. 2020) (citing Kohler, 546 F.3d at 265). However, the Court need not remand the case if the ALJ only committed harmless error, i.e., where the “application of the correct legal principles to the record could lead only to the same conclusion.” Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (alteration omitted) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).
d. Claimant's Credibility
An ALJ's credibility finding as to the claimant's disability is entitled to deference by a reviewing court. Osorio v. Barnhart, No. 04-CV-7515 (DLC), 2006 WL 1464193, at *6 (S.D.N.Y. May 30, 2006). “[A]s with any finding of fact, ‘[i]f the Secretary's findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount a claimant's subjective complaints.” Id. (quoting Aponte v. Sec'y of Health and Hum. Servs., 728 F.2d 588, 591 (2d Cir. 1984)). Still, an ALJ's finding of credibility “must . . . be set forth with sufficient specificity to permit intelligible plenary review of the record.” Pena, 2008 WL 5111317, at *10 (internal quotation marks omitted) (quoting Williams v. Bowen, 859 F.2d 255, 260- 61 (2d Cir. 1988)). “The ALJ must make this [credibility] determination ‘in light of the objective medical evidence and other evidence regarding the true extent of the alleged symptoms.'” Id. (quoting Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984)).
SSA regulations provide that statements of subjective pain and other symptoms alone cannot establish a disability. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citing 20 C.F.R. § 404.1529(a)). The ALJ must follow a two-step framework for evaluating allegations of pain and other limitations. Id. First, the ALJ considers whether the claimant suffers from a “medically determinable impairment that could reasonably be expected to produce” the symptoms alleged. Id. (citing 20 C.F.R. § 404.1529(b)). “If the claimant does suffer from such an impairment, at the second step, 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. (citing 20 C.F.R. § 404.1529(a)).
Among the kinds of evidence that the ALJ must consider (in addition to objective medical evidence) are:
1. The individual's daily activities; 2. [t]he location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. [f]actors that precipitate and aggravate the symptoms; 4. [t]he type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. [t]reatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. [a]ny measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. [a]ny other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.Pena, 2008 WL 5111317, at *11 (citing SSR 96-7p, 1996 WL 374186, at *3 (SSA July 2, 1996)).
B. The ALJ's Decision
On October 24, 2019, in a 12-page decision, the ALJ found that Brooks was not disabled from January 1, 2007 through the date of the decision. AR at 12. At step one of the five-step inquiry, the ALJ found that although Brooks continued to work after her disability onset date, she had not been engaged in substantial gainful activity since May 2018. Id. at 14. At step two, the ALJ found that Brooks had the following severe impairments: “asthma, osteoarthritis in multiple sites, right arm impairment, obesity, depressive disorder and bipolar disorder.” Id. At step three, after considering Brooks' mental impairments and applying the required “special technique” for assessing these impairments, the ALJ found that Brooks did not have “an impairment or combination of impairments” that met the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. In so deciding, the ALJ relied primarily on Dr. Frankel's and Dr. D'Ortona's reports, and noted that although Brooks had multiple moderate impairments, she did not have at least two “marked limitations” and therefore failed to satisfy the “paragraph B” criteria. Id. at 14-16.
The ALJ also concluded that the evidence failed to establish the presence of “paragraph C” criteria. Id. at 16.
Prior to evaluating step four, the ALJ determined Brooks' RFC. In making this finding, the ALJ considered “all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence.” Id. First, in considering Brooks' subjective statements, the ALJ found that while Brooks' medically determinable impairments could reasonably be expected to cause the symptoms alleged, her statements “concerning the intensity, persistence, and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record[.]” Id. at 17. The ALJ noted that when Brooks was compliant with her medication, she did not hear voices or scream and yell at people. Id. The ALJ also noted that Brooks was able to perform daily activities such as taking the train, using her phone, and maintaining a relationship with her boyfriend. Id.
Next, the ALJ next assessed the medical opinion evidence. Id. at 17-21. With respect to Brooks' physical limitations, the ALJ found Dr. Ravi's examination, which indicated that Brooks could only perform sedentary work with “only occasional reaching and pushing and pulling with the left arm and hand, and frequent handling, fingering and feeling with the left [arm and hand], ” to be unpersuasive given that Brooks “had full strength in both upper and lower extremities and full grip strength in the right hand.” Id. at 20. The ALJ found Dr. Saeed's opinion that Brooks has “no hand deficits” to be “somewhat persuasive” because that opinion was more consistent with the medical evidence submitted after the hearing. Id.
With respect to Brooks' mental limitations, the ALJ considered Dr. Frankel's consultative examination, during which she ruled out a learning disability and schizoaffective and unspecified depression. Id. The ALJ found Dr. Frankel's opinion that Brooks' psychiatric and cognitive problems may significantly interfere with her ability to function to be unpersuasive given that Dr. Frankel ultimately concluded that Brooks had no marked limitations. Id. Moreover, Brooks had not informed Dr. Frankel that she had worked at substantial gainful activity levels after 2015. Id. The ALJ found Dr. D'Ortona's opinion that Brooks “retains the ability to perform unskilled work” to be persuasive as it was more consistent with Brooks' work history and mental health records submitted after the hearing. Id. at 20.
The ALJ next considered Dr. Schaich's consultative examination, during which he opined that Brooks can follow simple instructions but had marked limitations with making work-related decisions; interacting with the public, co- workers, and supervisors; and adapting. Id. at 20-21. Dr. Schaich further opined that Brooks had moderate limitations with concentrating and pace. Id. at 21. The ALJ found Dr. Schaich's opinion to be unpersuasive because (1) Brooks had not provided an accurate account of her work history, (2) her mental status examination showed “all fair, ” and (3) she reported no hallucinations and improved when she was compliant with her medication. Id. at 20-21.
Finally, the ALJ considered Nurse Decamp's 2019 opinion. Id. at 21. Nurse Decamp opined that Brooks has problems with mood and understanding complex problems, problems cooperating with others, and problems with focus. Id. In addition, Nurse Decamp noted that Brooks had marked limitations in her ability to adapt to changes and would be off task 20 percent of the time. Id. The ALJ found Nurse Decamp's opinion to be unpersuasive because “these treating notes show[] that when [Brooks] is on medications, her mood is stable, and she has mental status examinations which are within normal limitations.” Id.
The ALJ referred to this opinion as the “treating source's” opinion because she could not read Nurse Decamp's name. Id. at 21.
Based on this analysis, the ALJ found that Brooks could perform light work with no lifting of the right arm above her head and is limited to unskilled simple tasks, no working with the public, and only occasional and casual contact with co-workers. Id. at 16.
At step four, the ALJ found that Brooks was unable to perform any past relevant work. Id. At step five, after considering the vocational expert's testimony and Brooks' demographic information, the ALJ concluded that there were jobs that exist in significant numbers in the national economy that Brooks could perform, such as assembler, marker, and bench assembler. Id. at 22. Accordingly, the ALJ concluded that Brooks was not disabled from January 1, 2007 through the date of her decision. Id.
C. Analysis
Brooks argues that the Court should reverse the Commissioner's decision and award benefits for three reasons: (1) the ALJ erroneously ignored conflicts between the vocational expert's testimony and the Dictionary of Occupational Titles (“DOT”); (2) the ALJ failed to properly evaluate the medical source statement of Nurse Decamp; and (3) the ALJ's decision is not supported by substantial evidence. Pl. Mem. at 22, 25, 27. The Commissioner counters that the ALJ's decision should be affirmed because (1) substantial evidence supported the ALJ's finding that the VE's testimony did not conflict with the DOT; (2) substantial evidence supported the weight assigned to the medical opinions; and (3) substantial evidence supports the ALJ's RFC and credibility findings. Def. Mem. at 9, 12, 18. For the reasons that follow, Brooks' case should be remanded because (1) the ALJ failed to properly evaluate the medical evidence regarding Brooks' mental impairments; (2) the RFC finding was not supported by substantial evidence in the record as a whole; (3) the ALJ failed to adequately develop the record; and (4) the hypothetical posed to the vocational expert was inadequate.
Notably, both Brooks and the Commissioner cite to the correct regulations in their memoranda of law, but rely on older cases that invoke the treating physician rule. However, the Court has undertaken to review the ALJ's decision in light of the new standards.
1. The ALJ Failed to Comply with the New SSA Regulations in Evaluating the Medical Opinion Evidence
As discussed above, the new SSA regulations require an ALJ to consider a number of factors when evaluating the medical opinion evidence in the record - “most importantly, the ‘supportability' and ‘consistency' of each submitted opinion.” Velasquez, 2021 WL 4392986, at *25. Courts frequently remand an ALJ's decision when it ignores or mischaracterizes medical evidence or cherry-picks evidence that supports her RFC determination while ignoring other evidence to the contrary. See Id. at *27 (collecting cases); see also Colgan, 2022 WL 18502, at *6 (ALJ erred by cherry-picking isolated instances of improvement and subsequently concluding that claimant was capable of working).
a. The ALJ's Mental Impairment Assessment Was Not Supported by Substantial Evidence in the Record
In concluding that the severity of Brooks' mental impairments did not meet the paragraph B criteria, the ALJ relied almost entirely on two consultative examinations that pre-dated May 31, 2018 (the date when Brooks completely ceased any form of employment). Id. at 15-16. Moreover, the ALJ ignored the opinion of Nurse Decamp, Brooks' psychiatric treating source, who determined that Brooks had “marked” limitations in (1) responding to ordinary work pressure; (2) understanding, remembering, and carrying out instructions; (3) responding to other workers or supervisors appropriately; (4) responding to supervision appropriately; (5) meeting work production, quality, and attendance standards; (6) doing routine, repetitive, simple tasks in a normal work setting; (7) doing complex or varied, changing work; and (8) performing work in a non-sheltered setting. Id. at 707.
Under the new regulations, 20 C.F.R. §§ 404.1502(a)(7) and 416.902(a)(7), a licensed advanced practice registered nurse, such as Decamp, is considered an “accepted medical source.” See, e.g., Withus v. Saul, No. 18-CV-10923 (VSB) (JLC), 2021 WL 2012270, at *7 n.10 (S.D.N.Y. May 19, 2021).
The ALJ's failure to consider Nurse Decamp's opinion was exacerbated by the fact that it was at least arguably consistent with other medical evidence in the record. For example, Dr. Schaich found that Brooks had “marked” limitations in her ability to (1) make judgments on complex work-related decisions; (2) interact appropriately with supervisors, coworkers, and the public; (3) respond appropriately to usual work situations and to changes in a routine work setting; and (4) regulate emotions, control behavior, and maintain well-being. Id. at 359, 363. Courts in this District have found that “an ALJ's failure to consider the consistency of the physicians' opinions with each other . . . constitutes legal error.” Williams v. Saul, No. 19-CV-10443 (AT) (JLC), 2020 WL 6385821, at *13 (S.D.N.Y. Oct. 30, 2020), adopted sub nom. Williams v. Comm'r of Soc. Sec., No. 19-CV-10443 (AT) (JLC), 2020 WL 7337864 (Dec. 14, 2020); see also Velasquez, 2021 WL 4392986, at *26.
The ALJ also failed to consider that Brooks' own testimony at the hearing supported Nurse Decamp's and Dr. Schaich's findings. At the hearing, Brooks testified that she has “a hard time remembering things.” AR at 44. Brooks further testified that even when she takes medication, her memory and ability to focus and concentrate is “a little bit” better, but “then not really, ” and that “sometimes [the medication] will work and sometimes it [won't] . . . .” Id. Brooks also testified that she had been in special education classes her whole life, did not graduate high school, and did not obtain a GED because she “couldn't understand it.” Id. at 47. Brooks also stated that she did not continue her temp job doing “clean up” because she does not like being around crowds. Id. Brooks later stated that she often stays home because she does not like being around people. Id. at 54. Brooks also testified that she has trouble finishing tasks and loses interest and motivation. Id. at 53-54. This testimony was at least arguably consistent with, and supported, Nurse Decamp's and Dr. Schaich's findings. Because the ALJ failed to consider Nurse Decamp's opinion and its consistency with Dr. Schaich's opinion and Brooks' own subjective statements, the Court cannot conclude that the ALJ's determination of Brooks' disability status was justified, and therefore remand is warranted. See, e.g., Velasquez, 2021 WL 4392986, at *27 (remanding when ALJ's inadequate review and consideration of medical evidence led to improper analysis of supportability and consistency of physician's opinion).
In addition, the ALJ found Dr. Schaich's opinion to be unpersuasive because during his examination, Brooks had incorrectly reported that she last worked in 2013. AR at 20. Ironically, however, Brooks had given similarly inaccurate history to Dr. Frankel, id. at 20, 279, and yet the ALJ relied on Dr. Frankel's opinion in assessing the severity of Brooks' mental impairments at step two of her analysis. Id. at 15-16.
b. The ALJ's RFC Determination Was Not Supported by Substantial Evidence
Similarly, the ALJ's RFC determination - in which she found that Brooks could perform light, unskilled work with no lifting of the right arm above her head and with no contact with the public and only occasional contact with co-workers - was unsupported by substantial evidence in the record and provides a separate basis for remand. AR at 16.
In formulating Brooks' RFC with respect to her physical impairments, the ALJ found Dr. Ravi's opinion “not persuasive” because he opined that Brooks was limited to sedentary work with no use of her right hand and arm and only occasional use of the left arm and hand, but also found that Brooks had “full strength in both upper and lower extremities and full grip strength in the right hand.” AR at 20. However, the ALJ failed to consider that Dr. Ravi's findings were consistent with Brooks' own subjective statements about her right arm pain. At the hearing, Brooks testified that she experiences pain in her right arm when lifting it to any extent. Id. at 60. Moreover, the ALJ discredited Dr. Ravi's opinion and relied instead on the opinions of Dr. Salon, who examined Brooks prior to the date she stopped working, and Dr. Saeed, who did not examine Brooks at all. Id. at 18, 20.
Similarly, in formulating Brooks' RFC with respect to her mental impairments, the ALJ improperly considered the opinions of Nurse Decamp and Dr. Schaich, who both found that Brooks had marked limitations in her ability to interact with the public, co-workers, and supervisors. The ALJ discredited Nurse Decamp's opinion of Brooks' “marked” limitations because it was “not supported by the treating notes showing that when [Brooks] is on medications, her mood is stable and she has mental status examinations which are within normal limitations.” AR at 21. However, the outpatient treatment records from 2018 to 2019 consistently demonstrate that even when Brooks was fully or partially compliant with her medication, she continued to feel depressed, experience mood swings, present a disheveled appearance, and have a sad, worried, and labile affect. Id. at 306 (affect/mood “sad, worried, labile” and disheveled appearance), 314-15 (same), 325- 26 (same), 382-83 (continued feelings of depression, mood swings, irritable affect, anger), 385 (mood “a little better” when partially compliant with medication, affect/mood still depressed), 388-89 (mood “a little better” and less depressed when fully compliant with medication, affect/mood still depressed), 392-94 (affect/mood depressed), 403-04 (feeling depressed, having mood swings, affect/mood sad, worried, labile, appearance disheveled), 424-26 (less depressed, less mood swings, but affect/mood depressed), 442-43 (sporadic compliance with medication, change in behavior when on medication, affect/mood still depressed), 445 (positive for anxiety, depression, sleep disturbance), 514-15 (feeling less depressed and having less mood swings when compliant with medication, appearance disheveled and affect/mood sad, worried, labile), 525-26 (fully compliant with medication but feeling depressed, having mood swings, sad/worried/labile affect), 538-39 (partial compliance with medication, still experiencing depression, mood swings, sad/worried/labile affect), 541-42 (partial compliance with medication, sad/worried/labile affect).
Therefore, while the treatment notes indicate that Brooks' compliance with her medication lessened her mood swings and auditory hallucinations, they do not necessarily indicate that these medications improved her other mental impairments such that she could perform work-related functions. See, e.g., Scatola v. Comm'r of Soc. Sec., No. 19-CV-3182 (PKC), 2020 WL 5752300, at *7 (E.D.N.Y. Sept. 26, 2020) (treatment notes indicating plaintiff's compliance with medication did not necessarily indicate improvement of anxiety, panic attacks, or depression) (citing Collins v. Berryhill, No. 16-CV-6673 (PKC), 2018 WL 259282, at *7 (E.D.N.Y. Jan. 2, 2018) (no medical basis for ALJ's conclusion that medications sufficiently managed plaintiff's anxiety such that plaintiff could perform work-related functions)). Indeed, Brooks' own testimony that the medication ameliorated her auditory hallucinations but that she continued experiencing difficulties in her memory and ability to concentrate and sleep disturbances and improved her mood “a little bit” AR at 44, 51, corroborates these findings and at least arguably supports Nurse Decamp's opinion that despite Brooks' compliance with medication, she nevertheless possessed marked limitations.
Moreover, the ALJ's reliance on the fact that the treatment notes in the record showed “all fair” was an improper substitution of her own lay opinion. Id. at 21. First, when discussing the “fair” findings at the hearing, the ALJ admitted that these findings “may or not mean anything, I don't know, ” and stated that she is “not a doctor.” Id. at 63. In her decision, the ALJ did not cite to any evidence in the record that clarified or elucidated the meaning of these findings, and the Court has not independently found any. The ALJ's decision also characterized Nurse Decamp's “fair” findings during her examinations as demonstrating that Brooks' mental status was within “normal limitations.” Id. at 21. However, Nurse Decamp never characterized these findings as being within normal limitations in either her treating notes or in her August 2019 function assessment. Therefore, to the extent the “within normal limitations” descriptor used by the ALJ was her own assessment of Brooks' mental status examinations, it amounted to an improper medical conclusion. See, e.g., Avrutskaya v. Comm'r of Soc. Sec., No. 18-CV-6267 (PKC), 2020 WL 1550252, at *6 (E.D.N.Y. Mar. 31, 2020) (ALJ's characterization of symptoms as “moderate” when medical opinion did not describe symptoms as such amounted to improper medical conclusion and substitution of ALJ's own lay opinion).
In sum, the ALJ's decision, including her RFC determination, was not supported by substantial evidence because it failed to account for objective medical evidence in the record, as well as Brooks' subjective complaints regarding the symptoms and functional limitations that she experienced as a result of her depression, bipolar disorder, and right arm impairments. Because, as discussed below, these errors were not harmless, remand for further administrative proceedings is appropriate.
2. The ALJ Failed to Adequately Develop the Record
Furthermore, the ALJ failed to adequately develop the record regarding Brooks' physical impairments. The only two functional assessments of Brooks' physical impairments in the record were from Drs. Salon and Ravi. AR at 285, 346. As previously noted, Dr. Salon's 2017 assessment predated both the date on which Brooks stopped working as well as Brooks' reported right arm fracture in 2019 (and therefore could not have assessed the extent to which Brooks' physical impairments may have deteriorated over time). AR at 19, 285. With respect to Dr. Ravi, the ALJ effectively discredited his 2019 functional assessment. Id. at 20. As a result, the record of Brooks' physical impairments between 2017 and 2019 consisted only of medical notes from her visits with Drs. Islam and Khader (Brooks' primary care physicians at Brightpoint). These notes simply describe Brooks' symptoms and examinations and do not assess her functional capacity. See AR at 301-02, 330-31, 390-91, 396-99, 400-01, 409-10, 416-17, 534-37, 544-45, 581-84, 607, 609.
Courts in this Circuit have held that when an ALJ has to determine an RFC, her failure to request a functional assessment when no such assessment exists in the record or when any such assessments are insufficient constitutes a failure of her duty to develop the record. See, e.g., Romero v. Comm'r of Soc. Sec., No. 18-CV-10248 (KHP), 2020 WL 3412936, at *13 (S.D.N.Y. June 22, 2020) (collecting cases); see also Acosta Cuevas, 2021 WL 363682, at *11 (applying same principle in post-treating physician rule context). Moreover, despite the new regulations, an ALJ's duty to develop the record “takes on heightened importance with respect to a claimant's treating medical sources, because those sources ‘are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations.'” Id. (quoting Marinez v. Comm'r of Soc. Sec., 269 F.Supp.3d 207, 216 (S.D.N.Y. 2017) (citing 20 C.F.R. § 416.927(c)(2))). To satisfy this duty to develop the record, “an ALJ should have medical evidence from a medical source with a sufficiently persuasive opinion noting the existence and severity of a disability.” Id. (citing Marinez, 269 F.Supp.3d at 216). When an ALJ's RFC determination is questioned by a claimant, a reviewing court's “decision not to remand assumes that there are no obvious gaps in the record precluding the ALJ from properly assessing the claimant's residual functional capacity.” Newton v. Berryhill, No. 18-CV-1244 (MPS), 2019 WL 4686594, at *2 (D. Conn. Sept. 26, 2019) (quoting Downes v. Colvin, No. 14-CV-7147 (JLC), 2015 WL 4481088, at *15 (S.D.N.Y. July 22, 2015)); see also Eusepi v. Colvin, 595 Fed.Appx. 7, 9 (2d Cir. 2014) (ALJ required to seek out additional evidence when there are “obvious gaps” in administrative record).
In this case, the lack of a functional assessment from a source familiar with Brooks' physical impairments and covering the relevant time period was an “obvious gap” in the record. Accordingly, the ALJ should have requested a functional assessment of Brooks' physical impairments in order to better understand the progression of her impairment and the impact of any treatment over time. Without the benefit of a more recent functional assessment (or at least one that the ALJ did not discredit), the RFC was largely supported by the ALJ's own interpretation of Dr. Islam's and Dr. Khader's medical records and treatment notes and nothing more. See, e.g., AR at 17, 19. Courts have found that an ALJ commits legal error when, as here, she “fill[s] th[e] evidentiary void with [her] own medical judgment and interpretation of [the medical] records.” Lee v. Saul, No. 19-CV-9451 (CS) (JCM), 2020 WL 5362619, at *17 (S.D.N.Y. Sept. 8, 2020) (collecting cases); see also Dean C. v. Comm'r of Soc. Sec., No. 19-CV-1165 (DB), 2021 WL 1558501, at *8 (W.D.N.Y. Apr. 21, 2021) (ALJ not permitted to use own lay interpretation of record to develop claimant's physical RFC); McGrath v. Comm'r of Soc. Sec., No. 20-CV-3042 (FB), 2021 WL 5281317, at *2 (E.D.N.Y. Nov. 12, 2021) (“Because the ALJ is a layperson, not a doctor, she is not permitted to interpret raw medical information into a determination about [the claimant's] medical condition without the assistance of a medical professional's insight.”).
3. The ALJ's Hypothetical Question Posed to the Vocational Expert was Incomplete
Finally, the ALJ's failure to adequately develop the record with respect to Brooks' physical impairments, and to properly evaluate the medical opinion evidence with respect to her mental impairments, rendered the ALJ's hypothetical question posed to the vocational expert inaccurate and incomplete. “To support a finding that a claimant is not disabled, the SSA must provide evidence showing that, given the claimant's RFC and vocational factors, the claimant is capable of performing work that exists in significant numbers in the national economy.” Garcia v. Colvin, No. 14-CV-3725 (DF), 2015 WL 5786506, at *23 (S.D.N.Y. Sept. 29, 2015) (citing 20 C.F.R. § 404.1560(c)(2)). “In making such a finding, an ALJ may rely on a vocational expert's testimony concerning the availability of jobs suited to a hypothetical person with the claimant's capabilities, ‘as long as the facts of the hypothetical are based on substantial evidence and accurately reflect the limitations and capabilities of the claimant involved.'” Id. (quoting Calabrese v. Astrue, 358 Fed.Appx. 274, 276-77 (2d Cir. 2009)). Therefore, an ALJ can rely on the answer to a hypothetical that mirrors a claimant's RFC (as long as the RFC is based on substantial evidence). See Mancuso v. Astrue, 361 Fed.Appx. 176, 179 (2d Cir. 2010). “By contrast, a vocational expert's testimony cannot constitute substantial evidence in support of a disability determination where the ALJ asks about a hypothetical claimant whose limitations do not mirror the RFC of the plaintiff.” Garcia, 2015 WL 5786506, at *23 (internal citation omitted).
As discussed above, with respect to Brooks' physical impairments, the ALJ's RFC determination was not supported by substantial evidence and was based on an incomplete record, and therefore the hypothetical posed to the vocational expert about these limitations was at least potentially incomplete and inaccurate. Similarly, with respect to Brooks' mental impairments, the ALJ's hypothetical did not account for any limitations which both Nurse Decamp and Dr. Schaich assessed (such as Brooks' limited ability to interact with co-workers and supervisors), and therefore the vocational expert's answer lacked any consideration of these limitations. Relying on the vocational expert's answer to the hypothetical under these circumstances constituted legal error and warrants remand. Garcia, 2015 WL 5786506, at *24.
In their motion papers, the parties focus on whether the ALJ erred by ignoring conflicts between the vocational expert's testimony and the DOT. Pl. Mem. at 22- 25; Def. Mem. at 9-12; Pl. Reply at 1-6. However, because the ALJ failed to adequately develop the record, the vocational expert's testimony was incomplete, and therefore it is not necessary to address whether this testimony conflicted with the DOT.
4. The ALJ's Errors were Not Harmless
The ALJ's failures to properly evaluate the medical evidence and develop the record were not harmless. Both Nurse Decamp and Dr. Schaich opined that Brooks had “marked” limitations in a number of areas, including interacting appropriately with the public, co-workers, and supervisors and responding to ordinary work pressures and changes in the workplace. AR at 359-60, 706-07. Nurse Decamp also estimated that Brooks would be off task for more than 20% of the workday. Id. at 708. If the ALJ found these opinions to be persuasive, she would have found that Brooks' impairments satisfied the “paragraph B” criteria at step three of her analysis (and thereby found that Brooks was disabled). Moreover, the vocational expert testified that no jobs could accommodate an employee who would be off task for more than 10% of the workday. Id. at 70. Therefore, if the ALJ had credited Nurse Decamp's opinion, she would have found that there were no jobs in the national economy that Brooks could perform. Accordingly, the ALJ's failure to properly assess the medical evidence was not harmless. See, e.g., Pines v. Comm'r of Soc. Sec., No. 13-CV-6850 (AJN) (FM), 2015 WL 872105, at *10 (S.D.N.Y. Mar. 2, 2015) (internal quotation marks and citation omitted) (ALJ's analysis of treating physician's opinion was not harmless error because vocational expert “essentially testified that if these opinions were adopted, [the claimant] would be unable to work”), adopted sub nom. Pines v. Colvin, 2015 WL 1381524 (Mar. 25, 2015).
III. CONCLUSION
For the foregoing reasons, Brooks' motion for judgment on the pleadings should be granted, the Commissioner's cross-motion should be denied, and the case should be remanded pursuant to sentence four of 42 U.S.C. § 405(g). On remand, if this Report is adopted, the ALJ should (1) consider the supportability and consistency of Nurse Decamp and Dr. Schaich's opinions regarding Brooks' mental impairments; (2) develop the record with respect to Brooks' physical impairments; (3) assess Brooks' RFC in light of any additional findings of her physical and mental impairments; and (4) if needed, submit additional hypotheticals mirroring Brooks' RFC to the vocational expert.
Brooks also requests that the Commissioner's decision be reversed and remanded solely for a calculation of benefits. Pl. Mem. at 31, Pl. Reply at 10. Such relief is only appropriate where the Court has “no apparent basis to conclude that a more complete record might support the Commissioner's decision.” Butts v. Barnhart, 388 F.3d 377, 385-86 (2d Cir. 2004). That is not the case here, and Brooks has not provided any reasoning or arguments to the contrary.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, United States Courthouse, 500 Pearl Street, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).