Opinion
Civil Action 20 Civ. 6933 (MKV) (SLC)
11-21-2022
RENEE BRYANT, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
TO THE HONORABLE MARY KAY VYSKOCIL, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
Plaintiff Renee Bryant (“Ms. Bryant”) commenced this action pursuant to Section 205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. § 405(g) to seek review of the decision by the Commissioner (the “Commissioner”) of the Social Security Administration (“SSA”), denying her applications for Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”) under the Act. (ECF No. 1 at 1). Ms. Bryant contends that the decision of the Administrative Law Judge (“ALJ”) dated July 3, 2019 (the “ALJ Decision”) was erroneous, not supported by substantial evidence, and contrary to law, and asks the Court to reverse the Commissioner's finding that she was not disabled and remand to the Commissioner for a new hearing. (Id.; see ECF No. 25 at 1).
The parties have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (ECF Nos. 24; 28). On February 24, 2022, Ms. Bryant filed a motion for judgment on the pleadings (ECF No. 24 (“Ms. Bryant's Motion”)), on May 2, 2022, the Commissioner cross-moved (ECF No. 28 (the “Commissioner's Motion”)), and on May 23, 2022, Ms. Bryant filed a reply. (ECF No. 30 (the “Reply”)). For the reasons set forth below, I respectfully recommend that Ms. Bryant's Motion be DENIED and the Commissioner's Motion be GRANTED.
II. BACKGROUND
A. Procedural Background
On September 29, 2016, Ms. Bryant filed applications for SSI and DIB, alleging disability beginning on June 22, 2015 (the “Onset Date”) based on post-traumatic stress disorder (“PTSD”), anxiety, major depression, and panic disorder. (Administrative Record (“R.”) 23, 100-01, 209-17 (ECF Nos. 22 - 22-3)). On January 4, 2017, the SSA denied Ms. Bryant's applications. (R. 98-134). After Ms. Bryant requested a hearing before an ALJ, on May 29, 2019, ALJ Eric S. Fulcher conducted a hearing in Orlando, Florida (the “Hearing”). (R. 74-97, 138-39).On July 3, 2019, ALJ Fulcher issued his Decision finding that Ms. Bryant was not disabled under the Act. (R. 1833). On June 30, 2020, the ALJ Decision became the final decision of the Commissioner when the Appeals Council denied Ms. Bryant's request for review. (R. 1-7).
To qualify for DIB, one must be both disabled and insured for benefits. 42 U.S.C. § 423(a)(1)(A); 20 C.F.R. §§ 404.120, 404.315(a). The last date a person meets the insurance requirement is the date by which the claimant must establish a disability.
Ms. Bryant lived near Rochester, New York when she filed the application, but moved to Florida in late 2018. (R. 91, 100, 163).
B. Factual Background
1. Non-medical evidence
Ms. Bryant was born in 1967 and was 48 years old on the alleged onset date. (R. 100). She lives in a home with roommates and a dog. (R. 106, 314, 317). She graduated from high school and has a four-year college degree in social work. (R. 77). Her prior work experience includes employment as a painter, florist, house cleaner, home care aide, nursing home social worker, medical social worker, and volunteer coordinator. (R. 78-84, 94, 299, 327-33, 385, 401).
On June 22, 2015, Ms. Bryant was physically assaulted by her then-boyfriend, who stole and misused her credit cards and was later killed in a police-involved shooting. (R. 81, 86, 106, 360, 364-68 (the “Assault”); see R. 372). As a result of the Assault, she began suffering from PTSD, was recommended to undergo counseling, and went on temporary leave from her position as a care manager. (R. 86, 333, 360).
In a function report dated November 21, 2016 (the “Function Report” (R. 314-24)), Ms. Bryant described her daily activities as walking her dog, caring for an elderly couple, doing laundry and yard work, shopping, and preparing meals for herself. (R. 314-18). Although she previously worked full-time as a social worker, she could “no longer handle stressful situations or being around a lot of people[,] especially unfamiliar people[.]” (R. 317). She described having problems paying attention, getting along with people in authority, training information, and becoming “easily overwhelmed with multiple things to do[.]” (R. 322). She described the Assault, which was followed by stalking and identity theft, as the cause of her PTSD. (R. 322). Whenever she felt an anxiety attack, she took her medicine, tried to return home where she felt safe, took deep breaths, and attended therapy. (R. 322-23). Her anxiety symptoms lasted for a few hours or days, depending on severity. (R. 323).
In the Function Report, Ms. Bryant described how, in the fall of 2015, she resumed her position as a part-time care manager working with seriously mentally ill clients, but had to take another leave after a client “became verbally abusive[.]” (R. 333). In May 2016, while working at a nursing home, she was threatened by a client, which caused her to have a “melt down” and leave her position altogether. (R. 333-34). She then became a commercial painter “but had a hard time keeping up with the demands of the job[,]” and stopped on October 7, 2016. (R. 334). On October 31, 2016, she began working as a home health aide for an elderly couple “a few days a week[,]” which she found “manageable[.]” (R. 334). Ms. Bryant reported that she was currently prescribed Prozac,Klonopin, and Trazodone.(R. 336).
Prozac, a serotonin receptor antagonists and reuptake inhibitors (“SSRI”) that contains the active ingredient fluoxetine, is used to treat major depressive disorder, bulimia nervosa, obsessive-compulsive disorder, panic disorder, and premenstrual dysphoric disorder. See Prozac, DRUGS.COM, https://www.drugs.com/prozac.html (last visited Nov. 21, 2022).
Klonopin, the brand name for Clonazepam, is an anticonvulsant or antiepileptic drug used to prevent and control seizures and treat panic attacks. See Klonopin - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-920-6006/klonopin-oral/clonazepam-oral/details (last visited Nov. 21, 2022); Clonazepam, DRUGS.COM, https://www.drugs.com/clonazepam.html (last visited Nov. 21, 2022).
Trazodone, an SSRI, is used to treat major depressive disorders, insomnia, schizophrenia, and anxiety. See Trazodone, DRUGS.COM, https://www.drugs.com/trazodone.html (last visited Nov. 21, 2022); Trazodone, MEDLINEPLUS, https://medlineplus.gov/druginfo/meds/a681038.html#:~:text=Trazodone%20is%20used%20to%20trea t,that%20helps%20maintain%20mental%20balance. (last visited Nov. 21, 2022).
The Record also contains statements from Ms. Bryant's former co-workers. (R. 400-02). Emily Bertrand, who worked with Ms. Bryant as a care manager in 2015, described how, after the Assault, Ms. Bryant “was physically and emotionally unable to return to work for several months” and “was not the same.” (R. 400). Mary Kay Legler, who worked with Ms. Bryant at the nursing home, described the incident in which a male resident “threatened her[,]” which “so traumatized [her] that she was not able to return to” her position. (R. 402). In addition, Ms. Bryant's parents wrote that her “life has been severely compromised as a result of” the Assault, for which she has undergone treatment for PTSD, anxiety, and depression. (R. 403).
2. Medical evidence
The Commissioner provided a comprehensive summary of the medical evidence in the Record, while Ms. Bryant referenced only the treatment notes of Barbara Burke, LCSW-R (“Ms. Burke”). (Compare ECF No. 29 at 7-21 with ECF No. 25 at 2). The Court adopts the Commissioner's summary of the medical evidence as accurate and complete and summarizes below the pertinent evidence for purposes of analyzing the Motions. In addition, because Ms. Bryant limits her challenge to the ALJ's evaluation of her mental impairments (see ECF Nos. 25; 30), the Court limits its summary to the medical evidence concerning those impairments.
a. Eman Wahba, M.D. and Muhammad Azam Cheema M.D. - Treating Physicians
Beginning in July 2015, Eman Wahba, M.D. (“Dr. Wahba”) and Muhammad Azam Cheema, M.D. (“Dr. Cheema”) treated Ms. Bryant for depression and anxiety resulting from the Assault. (R. 360-63). They recommended counseling and prescribed Prozac, Klonopin, and Trazodone. (R. 360-63). Beginning in December 2017, Dr. Cheema prescribed Remeron and Zyprexa.(R. 389, 396, 570). At a January 15, 2018 visit, Ms. Bryant reported that the Remeron and Zyprexa medications were “working[,]” that she had stopped taking Wellbutrin, and was taking Trazodone before bed. (R. 671).
Remeron is used to treat symptoms of depression. See Remeron, RxLlST, https://www.rxlist.com/remeron-drug.htm (last visited Nov. 21, 2022); Remeron, DRUGS.COM, https://www.drugs.com/remeron.html (last visited Nov. 21, 2022).
Zyprexa, an antipsychotic medication, is used to treat symptoms of schizophrenia or bipolar disorder. See Zyprexa, DRUGS.COM, https://www.drugs.com/zyprexa.html (last visited Nov. 21, 2022); Zyprexa, RXLIST, https://www.rxlist.com/zyprexa-drug.htm (last visited Nov. 21, 2022).
Wellbutrin is used to treat symptoms of depression. See Wellbutrin, DRUGS.COM, https://www.drugs.com/wellbutrin.html (last visited Nov. 21, 2022); see also Bupropion, MEDLINEPLUS, https://medlineplus.gov/druginfo/meds/a695033.html (last visited Nov. 21, 2022).
b. Barbara Burke, LSCW-R - Treating Therapist
Ms. Burke treated Ms. Bryant from June 2015 until at least January 2019. (R. 392, 483, 591). The record contains over 125 pages of Ms. Burke's handwritten treatment notes, some of which are hard to decipher, but each containing a mental status examination (“MSE”) and discussion of Ms. Bryant's psychiatric and medical symptoms, sleep, progress on her goals, lethality and safety concerns, and steps taken during the treatment session. The Court has reviewed each of these notes and provides the following summary.
A partial summary of Ms. Burke's treatment notes also appears in the Commissioner's brief. (ECF No. 29 at 8-12).
Ms. Burke's first session with Ms. Bryant was on June 26, 2015, when Ms. Bryant described the Assault and subsequent feelings of fear, disassociation, insomnia, and nightmares. (R. 483, 592). Ms. Bryant was taking Trazodone, which helped her sleep. (R. 483). Ms. Bryant exhibited depression, anxiety, anger, and poor impulse control and judgment in her MSE. (R. 483). In a report dated September 22, 2015, Ms. Burke stated that, immediately after the Assault, Ms. Bryant began to experience PTSD symptoms, including nightmares, paranoia, hypervigilance, hypersensitivity, flashbacks, trouble sleeping, fear, dread, panic attacks, crying, depression, irritation, and difficulty concentrating and making decisions. (R. 369-71 (the “2015 Report”)). Ms. Burke diagnosed Ms. Bryant as having PTSD and depressive disorder. (R. 369). Ms. Burke added that “the ongoing identity theft [and] financial abuse [were] preventing her from getting better.” (R. 370; see R. 371). The course of treatment was weekly therapy and medication consisting of Prozac, Klonopin, and Trazodone. (R. 370).
Over the next three and one-half years, Ms. Bryant attended counseling sessions with Ms. Burke at least once, and sometimes twice, per week. (R. 474-81, 484-504, 514-25, 594-656, 674-84). During these sessions, Ms. Bryant regularly exhibited symptoms of PTSD, depression, and anxiety about the Assault, including flashbacks, feeling overwhelmed, difficulty focusing, interrupted sleep, fear of unknown people and public places, paranoia, hypersensitivity to noise, and crying, among others. (See, e.g., R. 484-504, 593-610). Ms. Bryant exhibited some improvement with medication. (R. 500, 519, 608 (noting that Abilify made her feel “significantly better”), 511, 619 (noting that Trazodone helped her sleep steadily), 475, 621 (same); 648 (noting improved appetite with Zyprexa)). Ms. Bryant also obtained some relief through meditation and yoga. (R. 508, 616).
Abilify, an antipsychotic medication, is used to treat symptoms of psychotic conditions including schizophrenia. See Abilify, DRUGS.COM, https://www.drugs.com/abilify.html (last visited Nov. 21, 2022).
Despite the medication and counseling regimen, in a medical assessment form dated November 21, 2018, Ms. Burke described Ms. Bryant as continuing to have a mood disorder, paranoia, and episodes of psychosis that made her easily overwhelmed, agitated, and upset. (R. 589-91 (the “2018 Assessment”)). Ms. Burke rated as fair Ms. Bryant's ability to follow work rules and function independently, and rated as “poor/none” her abilities to interact with coworkers, the public, and supervisors, deal with work stress, and maintain attention and concentration. (R. 589).
In a March 15, 2019 letter to the SSA (the “2019 Letter”), Ms. Burke discussed the Assault and subsequent identity theft, which caused Ms. Bryant to experience “classic PTSD symptoms, including trouble sleeping, nightmares, intrusive thoughts and memories, paranoia, hypervigilance, avoidance behaviors, extreme sensitivity to noise, trouble focusing, inability to handle any stress, and big emotional reactions to things that most people could manage easily.” (R. 689). Ms. Burke reported that Ms. Bryant “tried many ways to deal with her symptoms[,] . . . including therapy, journaling, yoga, meditation and desensitization[,]” as well as seeing a psychiatrist and taking psychotropic medications. (R. 689). Ms. Burke described Ms. Bryant's inability to keep a job, noting the incident in the nursing home and arguments with coworkers that caused her to leave positions as a florist, landscaper, and painter. (R. 689). After Ms. Bryant moved to Florida, she continued telephonic sessions with Ms. Burke, but her symptoms did not improve, as she continued having difficulty dealing with other people, paranoia, sensitivity to sound, trouble sleeping, nightmares, intrusive thoughts, trouble focusing, avoidance behaviors, and hypervigilance. (R. 689-90). Ms. Burke opined that Ms. Bryant's issues were “chronic” and rendered her chances of sustaining employment low. (R. 690).
c. David Comisar, LCSW-R - Treating Therapist
In September 2016, David Comisar, LCSW-R (“Mr. Comisar”) began counseling Ms. Bryant for depression and anxiety. (R. 377-80, 532, 553-55). At that time, she was taking Fluoxetine, Klonopin, and Trazodone. (R. 378). She appeared “lost, confused, [and] stuck” about what to do in her future. (R. 532, 552). He observed that she was “very limited” in her capacities to follow, understand, and remember simple instructions, perform simple and complex tasks independently, maintain attention and concentration, and regularly attend to a routine and maintain a schedule. (R. 379). He observed that she was “moderately limited” in her abilities to maintain basic standards of personal hygiene and perform low stress and simple tasks. (R. 379, 531).
On October 7, 2016, Ms. Bryant was “markedly depressed and anxious[,]” and had had “several panic attacks [and] flashbacks.” (R. 551). She found work as a painter “too much” physically and mentally. (R. 551). Mr. Comisar referred her to a psychiatrist. (R. 551). On October 19, 2016, Ms. Bryant reported “[f]eeling less severely depressed and anxious” but was still experiencing PTSD symptoms, for which she was isolating and sleeping. (R. 530, 550). Her MSE was largely normal, with concentration and insight fair, and judgment and impulse control good. (R. 530, 550). On October 28, 2016, Ms. Bryant reported “continued depression and anxiety[,]” but found relief in yoga, meditation, and the support of family. (R. 529, 549). Her MSE was largely normal, with concentration and insight fair, and judgment and impulse control good. (R. 529, 549).
On December 2, 2016, Mr. Comisar observed that Ms. Bryant was still having nightmares, flashbacks, and moments of hopelessness, but they were “less frequent and less intense[.]” (R. 528, 548). Her MSE was unremarkable, with judgment, impulse control, and insight good-to-fair. (R. 528, 548). On December 8, 2016, Mr. Comisar observed that Ms. Bryant “remain[ed] depressed and anxious” but that the “severity of [her] depression seem[ed] to be lifting.” (R. 527, 547). She complained of anxiety, flashbacks, nightmares, startling, and fear of trauma. (R. 527, 547). She found relief in journaling, yoga, and meditation. (R. 527, 547). Mr. Comisar's MSE assessed Ms. Bryant's insight, judgment, and impulse control as good-to-fair, and all other areas normal. (R. 527, 547). On December 20, 2016, Ms. Bryant expressed that her depression was “less severe[,]” and that she had a new boyfriend who was “safe and trusting.” (R. 546). Her MSE was unchanged. (R. 546). On December 28, 2016, Ms. Bryant continued feeling anxious and concerned about her boyfriend's possible move to Florida. (R. 545). She experienced suicidal ideation, but her MSE was unchanged. (R. 545).
On January 5, 2017, Ms. Bryant felt moderately depressed and anxious, and was experiencing flashbacks. (R. 544). Her MSE was unchanged. (R. 544). On January 16, 2017, Ms. Bryant continued feeling depressed and anxious, and had experienced some panic attacks. (R. 543). A car stopping in front of her home twice provoked fear and caused her to isolate. (R. 543). Her MSE remained the same. (R. 543). On January 26, 2017, Ms. Bryant reported continued depression and anxiety. (R. 542). Her medications at the time were Fluoxetine, Wellbutrin, Trazodone, and Klonopin. (R. 542).
d. Tulio Ortega, M.D. - Treating Physician
On January 19, 2017, on a referral from Mr. Comisar, Tulio Ortega, M.D. (“Dr. Ortega”) examined Ms. Bryant. (R. 563-68). Dr. Ortega recorded Ms. Bryant's description of her symptoms of anxiety, panic attacks, PTSD, and generalized anxiety, which had “been occurring for years” but had worsened since the Assault. (R. 563-64). He observed severe depression, but found her to be negative for mood disorder. (R. 565). He noted her current prescriptions for Prozac and Klonopin by Dr. Wahba. (R. 565-66). Dr. Ortega diagnosed major depressive disorder, panic disorder, generalized anxiety disorder, and PTSD. (R. 567). He continued her prescriptions for Prozac, Trazodone, and Klonopin, and Wellbutrin. (R. 567).
On March 2, 2017, Dr. Ortega observed “minimal apparent treatment response[,]” that Ms. Bryant was “episodically expressing suicidal ideas without any plan or intention,” and that she exhibited “a very negative pattern of behavior[.]” (R. 560). The frequency and intensity of her panic attacks were unchanged, as were the symptoms of anxiety, PTSD, hypervigilance, and depression. (R. 560). Dr. Ortega noted that her compliance with her medication was “[e]rratic.” (R. 560). In an MSE, Dr. Ortega observed her speech as “monotonal, perseverative, and soft[,]” a “depressed mood[,]” and a “constricted” affect. (R. 561). He continued her prescriptions for Prozac and Klonopin, and increased the dosage of Trazodone. (R. 562).
On May 19, 2017, Dr. Ortega observed that, although her anxiety symptoms continued, her attention span was longer, she was “fidgeting and squirming less[,]” and her panic attacks had decreased in frequency and intensity. (R. 557). Her depression symptoms were less frequent and less intense, and she “no longer complain[ed] of feelings of restlessness.” (R. 557). She convincingly denied suicidal ideation or intentions, and her MSE was unremarkable. (R. 557). Dr. Ortega continued her prescriptions for Prozac, Trazodone, and Klonopin, and “strongly recommended” cognitive therapy. (R. 558).
e. Kenya P. McIntosh, M.D., M.P.H. - Treating Physician
On March 12, 2018, Ms. Bryant began seeing primary care provider Kenya P. McIntosh, M.D., M.P.H. (“Dr. McIntosh”). (R. 572-76). Dr. McIntosh diagnosed moderate depression, and noted her prescriptions for Klonopin, Trazodone, and Remeron. (R. 573).
f. Lauren O'Neal, N.P. - Treating Provider
Beginning at least in May 2018, Ms. Bryant began seeing Lauren O'Neal, N.P., at Penfield Psychiatry. (R. 387, 389, 587-88). In a September 2018 office visit, Ms. O'Neal noted that the existing prescription for Seroquel“has helped her mood and anxiety[.]” (R. 587). Ms. O'Neal increased the Seroquel dosage. (R. 587-88). During a September 6, 2018 visit, Ms. Bryant said that the Seroquel prescription was “working well for her” and “help[ed] her redirect her thoughts of depression and wanting to hurt herself,” but still reported “[l]ittle interest or pleasure in doing things [m]ore than half the days, [f]eeling down, depressed, or hopeless[.]” (R. 658). Dr. McIntosh also noted her ongoing prescriptions for Klonopin, Remeron, and Trazodone. (R. 658).
Seroquel, an anti-psychotic drug, is used to treat certain mental/mood conditions, including schizophrenia, bipolar disorder, and sudden episodes of mania or depression associated with bipolar disorder. See Seroquel - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-4718/seroquel-oral/details (last visited Nov. 21, 2022).
g. Aspire Health Partners - Treating Physicians
On November 15, 2018, on her relocation to Florida, Ms. Bryant presented to Aspire Health Partners (“Aspire”) for a psychiatric evaluation. (R. 692, 705). Ms. Bryant reported taking Seroquel and Trazodone for PTSD and anxiety. (R. 692, 705). An MSE showed her to be lethargic, agitated, anxious, and having impaired judgment. (R. 710-11). She was prescribed Citalopram,Seroquel, and Trazodone. (R. 693). At a December 5, 2018 visit, Ms. Bryant reported feeling increasingly sleepy and was taking Seroquel at bedtime. (R. 695). An MSE was unremarkable and her prescriptions were renewed. (R. 696). At a February 6, 2019 visit, Ms. Bryant exhibited a flat affect and adverse effects from Celexa,so she was prescribed Effexor to help resolve her PTSD symptoms. (R. 698). Apart from the flat affect, her MSE was unremarkable. (R. 700). At an April 19, 2019 visit, Ms. Bryant reported that the Effexor made her “dizzy and nauseous[,]” and she exhibited a blunted affect and subdued mood. (R. 701). Effexor was discontinued,
Citalopram, whose brand name is Celexa, is an antidepressant medication used to treat major depressive disorder. See Citalopram (Celexa), NAMI NATIONAL ALLIANCE ON MENTAL ILLNESS, https://www.nami.org/About-Mental-Illness/Treatments/Mental-Health-Medications/Types-of-Medication/Citalopram-(Celexa) (last visited Nov. 21, 2022).
The treatment notes refer to “Cymbalta,” but no such prior prescription appears in Aspire's treatment notes, and the Court infers this is a typographical error that refers instead to Celexa.
Effexor, a serotonin-norepinephrine reuptake inhibitor, is used to treat depression. See Effexor Tablet - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-1836/effexor-oral/details (last visited Nov. 21, 2022).
Trazodone and Seroquel were continued, and Wellbutrin was prescribed for smoking cessation. (R. 701).
h. Kristina LaBarbera, Psy.D. - SSA Consultative Examiner
On December 16, 2016, SSA consultative examiner Kristina LaBarbera, Psy.D. (“Dr. LaBarbera”), conducted a psychiatric evaluation of Ms. Bryant. (R. 534-37). Dr. LaBarbera noted that Ms. Bryant had never been psychiatrically hospitalized, but had undergone outpatient counseling from June 2015 until May 2016 with Ms. Burke, medication management with Dr. Cheema, and counseling with Mr. Comisar since August 2016. (R. 534). She had prescriptions for Klonopin, Trazodone, and Fluoxetine.(R. 534). Ms. Bryant reported that her depressive symptoms began in 2000, and her symptoms included dysphoric moods, crying spells, hopelessness, irritability, and social withdrawal. (R. 534). Ms. Bryant described nightmares and flashbacks of the Assault, hyperstartling, hypervigilance, and difficulty concentrating. (R. 535). The MSE was normal in all areas. (R. 535-36). Dr. LaBarbera opined that Ms. Bryant had no limitations in her ability to follow and understand simple instructions, perform simple tasks independently, maintain attention, concentration, and a regular schedule, learn new tasks, perform complex tasks independently, and make appropriate decisions. (R. 536-37). Dr. LaBarbera opined that she had mild limitations in her ability to relate adequately with others and appropriately deal with stress. (R. 537). Dr. LaBarbera attributed her difficulties to “distractibility.” (R. 537). Dr. LaBarbera diagnosed persistent depressive disorder, panic disorder, and PTSD, for which she recommended Ms. Bryant continue with psychological treatment. (R. 537).
Fluoxetine, or Prozac, is used to treat depression, panic attacks and other anxiety disorders. See https://www.webmd.com/drugs/2/drug-6997/prozac-oral/details (last visited Nov. 20, 2022).
i. H. Tzetzo, M.D. - State Agency Consultant
On January 4, 2017, state agency consultant H. Tzetzo, M.D. (“Dr. Tzetzo”) conducted a review of the record evidence and determined that Ms. Bryant was not disabled. (R. 100-25). Dr. Tzetzo noted that Ms. Bryant was prescribed Prozac, Klonopin, and Trazodone and was in good physical health. (R. 106, 119). He noted that she reported her activities of daily living (“ADL”) to include daily food preparation, housework, driving, walking her dog, and yoga. (R. 106, 119). She reported feeling “paranoid” and was “not comfortable around groups of people[.]” (R. 106, 119). Dr. Tzetzo noted Ms. Burke's records as “confirm[ing] that she has ongoing issues related to the assault[.]” (R. 106, 119). In relation to Listings 12.04 and 12.06, he considered the paragraph B criteria and assessed her as having mild restrictions on ADLs, moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. (R. 106, 119). Dr. Tzetzo found that the evidence did not establish the paragraph C criteria of Listings 12.04 and 12.06. (R. 106, 119).
The impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926 are known as the “Listings.”
Dr. Tzetzo's mental residual functional capacity (“RFC”) assessment found that Ms. Bryant would be no more than moderately limited in any of the areas of understanding, memory, sustained concentration, persistence, social interaction, or adaptation. (R. 108-109, 121-22). Dr. Tzetzo concluded that Ms. Bryant “can handle at least simple work tasks[,]” and while her “ability to deal with co-workers and the public would be somewhat reduced, but adequate to handle brief and superficial contact.” (R. 106, 119). Dr. Tzetzo also concluded that Ms. Bryant's “ability to tolerate and respond appropriately to supervision would be reduced, but adequate to handle ordinary levels of supervision in the customary work setting.” (R. 106, 119). Dr. Tzetzo deemed her psychiatric impairments to limit her to unskilled, simple work, and cited the positions of mail clerk, toll collector, and linen room attendance as possible occupations that existed in significant number in the national economy. (R. 111, 124). Accordingly, Dr. Tzetzo concluded that Ms. Bryant was not disabled. (R. 111, 124).
C. Administrative Proceedings
1. The Hearing
On May 29, 2019, ALJ Fulcher held an in-person hearing in Orlando, Florida. (R. 74-97 (the “Hearing”)). Ms. Bryant attended with her attorney, who confirmed that the Record before the ALJ was complete. (R. 76). Ms. Bryant testified first, stating that she graduated from high school and had a four-year college degree in social work, and although she had part time work as a painter, florist, cleaner, and home care aide, had not worked full-time since June 22, 2015. (R. 77-78). Ms. Bryant stated that she stopped working after the Assault and went on disability. (R. 81). She explained that after the Assault, her ex-boyfriend “racked up thousands of dollars of credit card [charges], stalked me . . . [until] he was eventually killed himself by the police[.]” (R. 86). She explained that the PTSD from the Assault “has affected [her] daily.” (R. 86). She returned to work as a social worker in a hospital, but after she was threatened by a client, she “had a meltdown” and transferred to a nursing home. (R. 81-82). Ms. Bryant testified that, at the time of the Hearing, her medication was “pretty good [] but it [did not] take away the symptoms that [she] still [had].” (R. 87). She described a recent incident in which a co-worker yelled at her, causing a panic attack. (R. 87). Her symptoms were triggered when she felt threatened or scared. (R. 88).
Vocational expert (“VE”) Barbara Moses also testified at the Hearing. (R. 93-97). The VE classified Ms. Bryant's past work as social worker, volunteer coordinator, and mental health outreach. (R. 94). The ALJ posed a hypothetical of a person with Ms. Bryant's age, education, and past work, who could perform work at all exertional levels, but limited to performing simple, routine, and repetitive tasks without a production rate pace, able to perform simple or able to make simple work-related decisions, and have occasional interaction with co-workers and supervisors but no interaction with the public. (R. 94). The VE testified that such a person could not perform Ms. Bryant's past work, but could work as (i) a routing clerk, of which there were over 54,000 jobs in the national economy, (ii) silver wrapper, of which there were over 107,000 jobs in the national economy, and (iii) merchandise marker, of which there were over 270,000 jobs in the national economy. (R. 94-95). The ALJ then modified the hypothetical to provide that the person have occasional interaction with supervisors, no interaction with the general public, and interaction with co-workers no more than ten percent of the work day. (R. 95). The VE testified that such limitations would not allow for other work, and noted that ten percent was the maximum time off-task tolerated in competitive, unskilled employment. (R. 95). The VE testified that being off-task at least 20% of the day “would be work preclusive.” (R. 96).
2. The ALJ Decision and Appeals Council Review
On July 3, 2019, ALJ Fulcher issued his Decision finding Ms. Bryant not disabled and denying her applications for SSI and DIB. (R. 18-33). The ALJ followed the five-step disability determination process. As a preliminary matter, the ALJ determined that Ms. Bryant met the insurance requirements through December 31, 2023, for purposes of her DIB application. (R. 20). At step one, ALJ Fulcher determined that Ms. Bryant had not engaged in substantial gainful employment since, June 22, 2015, the Onset Date. (R. 21). At step two, the ALJ determined that Ms. Bryant had the following severe impairments: depressive disorder; panic disorder; anxiety disorder; acute stress disorder; and PTSD. (R. 21).
At step three ALJ Fulcher determined that none of Ms. Bryant's impairments were severe enough to meet or medically equal one of the Listings. (R. 21). In reaching that conclusion, the ALJ considered, inter alia, Listings 12.04 (depressive, bipolar, and related disorders), 12.06 (anxiety and obsessive-compulsive disorders), and 12.15 (trauma- and stress-related disorders). (R. 21-23). In particular, the ALJ determined that the “paragraph B” and “paragraph C” criteria for Listings 12.04 and 12.06 were not met because Ms. Bryant did not have at least two “marked” limitations or one “extreme” limitation in the four broad areas of functioning and did not present with a serious and persistent disorder that was medially documented over a period of at least two years. (R. 21-23). Instead, the ALJ found that Ms. Bryant had only moderate limitations in her abilities in the following areas: (i) understanding, remembering, or applying information; (ii) interacting with others; (iii) concentrating, persisting, or maintaining pace. (R. 22-23). The ALJ found that she had only a mild limitation in adapting or managing herself. (R. 23). The ALJ based these findings on, inter alia, his observations that Ms. Bryant did not present any abnormal memory incidents, continued to work without need for accommodation, was not discharged from any position, had normal MSEs, and lived independently. (R. 22-23).
Listing 12.00 covers “Mental Disorders.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00. “Paragraph B of each [Section 12] listing (except 12.05) provides the functional criteria [the Commissioner] assess[es] . . . to evaluate how [a claimant's] mental disorder limits [his or her] functioning.” Id. § 12.00(A)(2)(b). Paragraph C of listings 12.02, 12.03, 12.04, 12.06, and 12.15 provides the criteria [the Commissioner] use[s] to evaluate ‘serious and persistent mental disorders.'” Id. § 12.00(A)(2)(b).
Next, the ALJ assessed Ms. Bryant's RFC as being able to perform the full range of work at all exertional levels, with the following non-exertional limitations: (i) perform simple, routine, and repetitive tasks but not at production rate pace; (ii) perform simple work-related decisions; and (iii) occasional interaction with co-workers and supervisors but no interaction with the general public. (R. 23-24). In making the RFC determination, ALJ Fulcher considered all of Ms. Bryant's symptoms and “the extent to which [they] can reasonably be accepted as consistent with the objective medical” and other evidence. (R. 24). That evidence included the statements of Ms. Bryant's co-workers and her parents, as well as her own statements. (R. 24-25). The ALJ noted her ongoing treatment since the Assault, including counseling at least monthly with Ms. Burke, who documented “no significant variations[,]” Mr. Comisar, whose MSEs did not indicate “disabling impacts[,]” and Drs. Ortega, Cheema, and McIntosh, who provided medication management. (R. 26-28).
The ALJ discussed his consideration of the medical opinion evidence. (R. 29-30). The ALJ afforded “great weight” to Dr. Tzetzo's opinion that she had only moderate limitations in the non-exertional categories, noting that Ms. Bryant's “track of essentially unremarkable [MSEs] and conservative treatment with typical psychotropic medications is not indicative of more invasive deficits than as estimated by” Dr. Tzetzo and the other medical providers. (R. 29). The ALJ found Dr. LaBarbera's opinion was entitled to “great weight” because it was “not inconsistent with the medical evidence” that documented Ms. Bryant's “need for some treatment with psychotropic medications” and anxiety and depression “from time to time.” (R. 29-30). The ALJ afforded only “limited weight” to Ms. Burke's opinions about Ms. Bryant's ability to sustain employment, which was a determination reserved to the Commissioner. (R. 30). The ALJ found “more persuasive” Ms. Burke's opinion that Ms. Bryant had “poor ability to perform most basic mental work activities,” and thus afforded it “partial weight.” (R. 30). The ALJ similarly afforded limited weight to Dr. Cheema's opinion about Ms. Bryant's inability to work as inconsistent with her actual work activities. (R. 30). The ALJ afforded partial weight to Ms. Bryant's co-workers' statements to the extent that they were consistent with her “long history of treatment with psychotropic medications[,]” but noted that they were “potentially influenced by loyalties of family and friendship.” (R. 31).
At step four, the ALJ determined that, given her RFC, Ms. Bryant was not capable of performing her past relevant work as a social worker, volunteer coordinator, and mental health outreach caseworker. (R. 31). In reaching this conclusion, the ALJ relied on, inter alia, the VE's testimony. (R. 31). ALJ Fulcher also found that, based on Ms. Bryant's age, education, work experience, and RFC, jobs exist in significant numbers in the national economy that she could perform, including routing clerk, silver wrapper, and merchandise marker. (R. 31-32). For these reasons, the ALJ concluded that Ms. Bryant was not disabled from the Onset Date through July 3, 2019, the date of the ALJ Decision. (R. 33).
On June 30, 2020, the Appeals Council denied Ms. Bryant's request for review of the ALJ Decision. (R. 1-7).
III. LEGAL STANDARDS
A. Standard of Review
Under Rule 12(c), a party is entitled to judgment on the pleadings if she establishes that no material facts are in dispute and that she is entitled to judgment as a matter of law. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999); Morcelo v. Barnhart, No. 01 Civ. 743 (RCC) (FM), 2003 WL 470541, at *4 (S.D.N.Y. Jan. 21, 2003).
The Act provides that the Commissioner's findings “as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). A court may set aside the Commissioner's decision denying SSI benefits if it is not supported by substantial evidence or was based on legal error. See Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). Judicial review, therefore, involves two levels of inquiry. First, the Court must decide whether the ALJ applied the correct legal standard. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, No. 05 Civ. 4254 (SCR) (MDF), 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). Second, the Court must decide whether the ALJ's decision was supported by substantial evidence. See Tejada, 167 F.3d at 773. “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 v. Astrue, No. 07 Civ. 5952 (LAP), 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). 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.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal citations omitted). The substantial evidence test applies not only to the factual findings, but also to the inferences and conclusions drawn from those facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y. 1999). In determining whether the administrative record contains evidence to support the denial of claims, the Court must consider the whole record, and weigh all evidence to ensure that the ALJ evaluated the claim fairly. See, e.g., Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999). The Commissioner, not the Court, resolves evidentiary conflicts and appraises the credibility of witnesses, including the claimant. See, e.g., Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
B. Eligibility for Benefits
For purposes of DIB benefits, one is “disabled” within the meaning of the Act, and thus entitled to such benefits, when he or she is “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(3)(A). The Act also requires that the impairment 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.” Id. § 1382c(3)(B). In reviewing a claim of disability, the Commissioner must consider: “(1) objective medical facts; (2) diagnos[e]s or medical opinions based on those facts; (3) subjective evidence of pain and disability testified to by claimant and other witnesses; and (4) the claimant's background, age, and experience.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988).
Under the applicable regulations, an alleged disability is evaluated under the sequential five-step process set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v) and 20 C.F.R. § 416.920(a)(4)(i)-(v).
The Second Circuit has described the process as follows:
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on the medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the Claimant could perform.Bush v. Shalala, 94 F.3d 40, 44-45 (2d Cir. 1996) (quoting Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983)).
At the first four steps, the claimant bears the burden of proof. At the fifth step, the burden shifts to the Commissioner to demonstrate that there are jobs in the national economy that the claimant can perform. See, e.g., Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). In meeting the burden of proof at the fifth step, the Commissioner can usually rely on the Medical-Vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, known as “the Grid[.]” Zorilla v. Chater, 915 F.Supp. 662, 666-67 (S.D.N.Y. 1996).
C. Evaluation of Medical Opinion Evidence
For benefits applications filed before March 27, 2017, the SSA's regulations required an ALJ to give more weight to those physicians with the most significant relationship with the claimant. See 20 C.F.R. §§ 404.1527, 416.927; see also Taylor v. Barnhart, 117 Fed.Appx. 139, 140 (2d Cir. 2004). Under this “Treating Physician Rule[,]” an ALJ was required to “give good reasons” (20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2)) if he or she determined that a treating physician's opinion was not entitled to “controlling weight,” or, “at least greater weight” than the opinions of non-treating and non-examining sources. Gonzalez v. Apfel, 113 F.Supp.2d 580, 588-89 (S.D.N.Y. 2000); see Estrella v. Berryhill, 925 F.3d 90, 96 (2d Cir. 2019). In addition, under the Treating Physician Rule, a consultative physician's opinion was generally entitled to “little weight.” Giddings v. Astrue, 333 Fed.Appx. 649, 652 (2d Cir. 2009).
On January 18, 2017, the SSA published comprehensive revisions to the regulations regarding the evaluation of medical evidence, revisions that were applicable to applications filed on or after March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 F.R. 5844-01, 2017 WL 168819 (Jan. 18, 2017). These new regulations reflect a departure from a perceived hierarchy of medical sources. See id. The regulations now provide 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.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). See Young v. Kijakazi, No. 20 Civ. 3604 (SDA), 2021 WL 4148733, at *9 (S.D.N.Y. Sept. 13, 2021). Instead, an ALJ must consider all medical opinions in the record and “evaluate the persuasiveness” based on 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.” 20 C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c).
The new regulations define “prior administrative medical finding” as:
[A] finding, other than the ultimate determination about whether you are disabled, about a medical issue made by our Federal and State agency medical and psychological consultants at a prior level of review (see § 404.900) in your current claim based on their review of the evidence in your case record, such as: (i) The existence and severity of your impairment(s); (ii) The existence and severity of your symptoms; (iii) Statements about whether your impairment(s) meets or medically equals any listing in the Listing of Impairments in Part 404, Subpart P, Appendix 1; (iv) Your residual functional capacity; (v) Whether your impairment(s) meet the duration requirement; and (vi) How failure to follow prescribed treatment (see § 404.1530) and drug addiction and alcoholism (see § 404.1535) relate to your claim.20 C.F.R. § 404.1513(a)(5); see id. § 416.913(a)(5).
The ALJ's duty to articulate a rationale for each factor varies. 20 C.F.R. §§ 404.1520c(b), 416.920c(b). Under the new regulations, the ALJ must “explain,” in all cases, “how [he or she] considered” both the supportability and consistency factors, as they are “the most important factors.” Id. §§ 404.1520c(b)(2), 416.920c(b)(2); see Young, 2021 WL 4148733, at *9 (describing supportability and consistency as “the most important” of the five factors). As to supportability, “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 Civ. 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 by 2021 WL 2801138 (S.D.N.Y. July 6, 2021). In other words, supportability “looks at how well a medical source supported and explained his/her opinions about the patient.” Herrera v. Comm'r of Soc. Sec., 20 Civ. 7910 (KHP), 2021 WL 4909955, at *6 (S.D.N.Y. Oct. 21, 2021). Consistency “is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record.” Vellone, 2021 WL 319354, at *6.
As to the three remaining factors-relationship with the claimant, specialization, and “other”-the ALJ is required to consider, but need not explicitly discuss, them in determining the persuasiveness of the opinion of a medical source. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). If the ALJ finds two or more medical opinions to be equally supported and consistent with the record, but not identical, the ALJ must articulate how he or she considered those three remaining factors. See id. §§ 404.1520c(b)(3), 416.920c(b)(3).
Thus, “[a]lthough the new regulations eliminate the perceived hierarchy of medical sources, deference to specific medical opinions, and assigning ‘weight' to a medical opinion, the ALJ must still ‘articulate how [he or she] considered the medical opinions' and ‘how persuasive [he or she] find[s] all of the medical opinions.'” Andrew G. v. Comm'r of Soc. Sec., No. 19 Civ. 942 (ML), 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (quoting 20 C.F.R. §§ 404.1520c(a), (b)(1)); see 20 C.F.R. §§ 416.920c(a), (b)(1). “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.” Rivera v. Comm'r of Soc. Sec., No. 19 Civ. 4630 (LJL) (BCM), 2020 WL 8167136, at *14 (S.D.N.Y. Dec. 30, 2020) (quoting 20 C.F.R. § 416.920c(b)(2)), adopted by, 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021). “If the ALJ fails adequately to ‘explain the supportability or consistency factors,' or bases [his] explanation upon a misreading of the record, remand is required.” Rivera, 2020 WL 8167136, at *14 (quoting Andrew G., 2020 WL 5848776, at *9).
Several opinions among the district courts within the Second Circuit applying the new regulations have concluded that “the factors to be considered in weighing the various medical opinions in a given claimant's medical history are substantially similar” to the former Treating Physician Rule. Acosto Cuevas v. Comm'r of Soc. Sec., No. 20 Civ. 502 (AJN) (KHP), 2021 WL 363682, at *9 (S.D.N.Y. Jan. 29, 2021) (surveying district court cases in the Second Circuit considering the new regulations); see Prieto v. Comm'r of Soc. Sec., No. 20 Civ. 3941 (RWL), 2021 WL 3475625, at *9 (S.D.N.Y. Aug. 6, 2021) (noting that under both the Treating Physician Rule and the new regulations, “an ALJ's failure to properly consider and apply the requisite factors is grounds for remand”); Dany Z. v. Saul, No. 19 Civ. 217 (WKS), 2021 WL 1232641, at *12 (D. Vt. Mar. 31, 2021) (surveying Second Circuit district courts that “have concluded that the factors are very similar to the analysis under the old [Treating Physician] [R]ule”); Andrew G., 2020 WL 5848776, at *5 (noting that “consistency and supportability” were “the foundation of the treating source rule”); see also Brianne S. v. Comm'r of Soc. Sec., No. 19 Civ. 1718 (FPG), 2021 WL 856909, at *5 (W.D.N.Y. Mar. 8, 2021) (remanding to ALJ with instructions to provide explicit discussion of supportability and consistency of two medical opinions, because ALJ's “mere[] state[ment]” that examining physician's opinion was not consistent with overall medical evidence was insufficient).
D. Assessing a Claimant's Subjective Allegations
In considering a claimant's symptoms that allegedly limit his or her ability to work, the ALJ must first determine whether there is an underlying “medically determinable” physical or mental impairment-i.e., an impairment that can be shown by “medically acceptable clinical and laboratory diagnostic techniques”-that “could reasonably be expected to produce [the claimant's] symptoms.” 20 C.F.R. §§ 404.1529(c), 416.929(c). If such an impairment is found, the ALJ must next evaluate the “intensity, persistence, and limiting effects of [the claimant's] symptoms,” to determine “the extent to which [those] symptoms, such as pain, affect [the claimant's] capacity to perform basic work activities.” 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4).
To the extent that the claimant's expressed symptoms are not substantiated by the objective medical evidence, the ALJ must evaluate the claimant's credibility. See Meadors v. Astrue, 370 Fed.Appx. 179, 183 (2d Cir. 2010). “An ALJ's credibility finding as to the claimant's disability is entitled to deference by a reviewing court.” Rivera v. Berryhill, No. 17 Civ. 991 (JLC), 2018 WL 4328203, at *10 (S.D.N.Y. Sept. 11, 2018). That deference is due “because the ALJ had the opportunity to observe plaintiff's demeanor while [the plaintiff was] testifying.” Marquez v. Colvin, No. 12 Civ. 6819 (PKC), 2013 WL 5568718, at *7 (S.D.N.Y. Oct. 9, 2013). Thus, a district court will not “second-guess” the ALJ's credibility finding “where the ALJ identified specific record-based reasons for his ruling,” Stanton v. Astrue, 370 Fed.Appx. 231, 234 (2d Cir. 2010), and where the ALJ's credibility finding is supported by substantial evidence. See Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013) (declining to review ALJ's credibility finding where the ALJ “set forth specific reasons why she found [the plaintiff's] testimony not credible”). If the ALJ rejects the claimant's testimony as not credible, the ALJ must set forth the basis for that finding “with sufficient specificity to permit intelligible plenary review of the record.” Williams, 859 F.2d at 260-61. The ALJ may not base his credibility determination “on unsupported interpretations of raw medical evidence or mischaracterizations of the record.” Rivera, 2020 WL 8167136, at *20.
Courts have recognized that “the second stage of [the] analysis may itself involve two parts.” Sanchez v. Astrue, No. 07 Civ. 931 (DAB), 2010 WL 101501, at *14 (S.D.N.Y. Jan. 12, 2010). “First, the ALJ must decide whether objective evidence, on its own, substantiates the extent of the alleged symptoms (as opposed to the question in the first step of whether objective evidence establishes a condition that could ‘reasonably be expected' to produce such symptoms).” Id. “Second, if it does not, the ALJ must gauge a claimant's credibility regarding the alleged symptoms by reference to the seven factors listed [in 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3)].” Id. (citing Gittens v. Astrue, No. 07 Civ. 1397 (GAY), 2008 WL 2787723, at *5 (S.D.N.Y. June 23, 2008)). These seven factors include: (1) an individual's daily activities; (2) the location, duration, frequency and intensity of pain or other symptoms; (3) factors that precipitate and aggravate those symptoms; (4) the type, dosage, effectiveness, and side effects of medication that the individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, that the individual receives or has received for pain or other symptoms; (6) measures other than treatment the individual uses or has used to relieve pain or other symptoms; and (7) other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3) (i)-(vii). If the ALJ does not follow these steps, remand is appropriate. Sanchez, 2010 WL 101501, at *15.
E. Duty to Develop the Record
Disability-benefits proceedings are non-adversarial in nature, and therefore, the ALJ has an affirmative obligation to develop a complete administrative record, even when the claimant is represented by counsel. See Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009); see Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). “This duty exists even when the claimant is represented by counsel,” as was the case here. Chater, 77 F.3d at 47 (2d Cir. 1996).
The ALJ's obligation is set forth in the SSA regulations: “[b]efore we make a determination that you are not disabled, we will develop your complete medical history . . . [and] will make every reasonable effort to help you get medical evidence from your own medical sources . . . when you give us permission to request the reports.” 20 C.F.R. §§ 404.1512(b)(1), 416.912(b)(1). To this end, the ALJ must make “every reasonable effort” to help an applicant get medical reports from her medical sources. 20 C.F.R. §§ 404.1512(b), 416.912(b). Ultimately, “[t]he record as a whole must be complete and detailed enough to allow the ALJ to determine the claimant's residual functional capacity.” Casino-Ortiz v. Astrue, No. 06 Civ. 0155 (DAB) (JCF), 2007 WL 2745704, at *7 (S.D.N.Y. Sept. 21, 2007), adopted by, 2008 WL 461375 (S.D.N.Y. Feb. 20, 2008). When there are inconsistencies, gaps, or ambiguities in the record, the regulations give the ALJ options to collect evidence to resolve these issues, including re-contacting the treating physician, requesting additional records, arranging for a consultative examination, or seeking information from others. 20 C.F.R. §§ 404.1520b, 416.920b. Where there are no “obvious gaps” in the record and where the ALJ “possesses a ‘complete medical history,'” the ALJ is “under no obligation to seek additional information in advance of rejecting a benefits claim.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999). “The duty to develop ‘includes ensuring that the record as a whole is complete and detailed enough to allow the ALJ to determine the claimant's RFC.'” Van Dyne v. Saul, No. 20 Civ. 260 (MKB), 2021 WL 1210460, at *14 (E.D.N.Y. Mar. 31, 2021) (quoting Sigmen v. Colvin, No. 13 Civ. 268, 2015 WL 251768, at *11 (E.D.N.Y. Jan. 20, 2015)).
The Act authorizes a court, when reviewing decisions of the SSA, to order further proceedings: “The court shall have power to 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 the cause for a rehearing.” 42 U.S.C. § 405(g); see Butts v. Barnhart, 388 F.3d 377, 382 (2d Cir. 2004). If “‘there are gaps in the administrative record or the ALJ has applied an improper legal standard,'” a district court may remand the case for further development of the evidence or for more specific findings. Rosa, 168 F.3d at 82-83 (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) and remanding where ALJ “failed to obtain adequate information” from claimant's treating physician, “failed to seek potentially relevant information from a number of other doctors and treatment facilities,” and “jumped to conclusions that were not adequately supported by” the record). Remand is particularly appropriate where further findings or explanation will clarify the rationale for the ALJ's decision. Pratts, 94 F.3d at 39.
IV. DISCUSSION
Ms. Bryant's Motion challenges the ALJ Decision on a single ground: that the ALJ failed to fulfill his obligation to clarify illegible records as was required to develop the record adequately. (ECF No. 25 at 5-7). The Commissioner responds that the ALJ adequately developed the Record, and that the ALJ Decision applied the correct legal standards and is supported by substantial evidence. (ECF No. 29 at 22-30). The Court evaluates both the ALJ's development of the Record and whether the ALJ Decision is based on the correct standards and substantial evidence.
A. The ALJ's Failure to Request More Legible Notes from Ms. Burke Does Not Warrant Remand.
The Court does not disagree with Ms. Bryant's observation that some of Ms. Burke's handwritten notes are difficult to decipher. (ECF No. 25 at 5-7). The Record contains no indication that ALJ Fulcher requested that Ms. Burke provide typewritten copies of the less readable notes, or otherwise sought clarification of any illegible portions of the treatment notes. “Courts in this Circuit have often treated a failure to obtain legible notes from a provider - particularly when that provider's notes and opinions are crucial to the case - as a failure to develop the record.” Anzola v. Berryhill, No. 18 Civ. 11217 (VSB) (DCF), 2019 WL 10630956, at *15 (S.D.N.Y. Dec. 20, 2019) (collecting cases), adopted by, 2020 WL 5646329 (S.D.N.Y. Sept. 21, 2020).
In this case, despite the legibility issues presented by Ms. Burke's notes, the Court finds that ALJ Fulcher was not required to take additional steps to develop the Record. The Court has reviewed the entirety of Ms. Burke's notes, over 125 pages, and finds that only a small percentage are illegible to the point of incomprehensibility, that the few that are least legible still include portions that can be deciphered, and that the notes are highly consistent over the entire period of Ms. Bryant's treatment. Virtually all the notes appear on the same template, comprised of six sections: psychiatric symptoms; medical symptoms; sleep; progress on goals; lethality/safety concerns; steps taken today; and an MSE. (See, e.g., R. 476). The contents of two of the sections, lethality/safety concerns and steps taken today, are very similar across all the notes. (See, e.g., R 476-82). Ms. Burke's MSEs are also consistent, the only variation being that, on several dates, she characterized Ms. Bryant's judgment, insight, and impulse control as fair, rather than poor. (R. 476, 504-05, 622, 638). Otherwise, the MSEs showed Ms. Bryant as anxious and depressed but otherwise consistently having a groomed appearance, cooperative behavior, spontaneous speech, organized thought process, goal directed thought content, congruent affect, and intact short- and long-term memory. (See, e.g., R. 482, 499, 507, 509). In addition, the evidence of Ms. Burke's treatment contains three summaries that are entirely legible and are consistent with the Court's summary of Ms. Burke's notes: the 2015 Report, the 2018 Assessment, and the 2019 Letter. (R. 369-71, 589-91, 689-90).
Given the similarity across the legible portions of the notes, the “Court does not find it reasonable to assume that the handful of illegible entries all contain significantly different findings.” Anzola, 2019 WL 10630956, at *15. Ms. Bryant does not persuasively contend that the illegible entries would reveal more severe symptoms; even if they did, those instances “would be too few in number to outweigh the import of the substantial majority of [Ms. Burke's] notes that are legible.” Id. Accordingly, the Court does not recommend remand for development of the Record based on the legibility of Ms. Burke's notes.
B. Substantial Evidence Supports the ALJ's Decision
The Commissioner argues that the ALJ Decision “otherwise applied the correct legal standards and was supported by substantial evidence.” (ECF No. 29 at 25). In her Reply, Ms. Bryant does not respond to this argument. (ECF No. 30). The Court agrees with the Commissioner.
The ALJ discussed the spectrum of medical records that documented Ms. Bryant's symptoms of PTSD, anxiety, and depression, as well as her regular, yet conservative, treatment with counseling and medication. (R. 24-31). The ALJ agreed that the Record substantiated Ms. Bryant's allegations that her mental impairments limited her ability to work (R. 23-24), but determined that, notwithstanding her impairments, she had an RFC to perform a limited range of work for which many positions were available in the national economy. (R. 23-24, 32).
The ALJ's Decision is supported by the treatment records and Ms. Bryant's testimony reflecting that she was at least partially responsive to treatment using medication and counseling, as well as non-medical intervention such as meditation and yoga. (R. 447, 475, 495, 506, 604, 615, 621, 623, 641, 648). The ALJ was entitled to credit such evidence contradicting Ms. Bryant's assertions about the severity of her symptoms and their impact on her ability to work, which is a “determination that is left to the ALJ rather than the reviewing court.” Torres v. Colvin, No. 13 Civ. 8224 (GWG), 2015 WL 1218705, at *19 (S.D.N.Y. Mar. 17, 2015).
The ALJ Decision is also supported by the medical opinion evidence. See Bonilla Mojica v. Berryhill, 397 F.Supp.3d 513, 535 (S.D.N.Y. 2019) (reviewing medical evidence that supported ALJ's RFC determination). As the ALJ pointed out, Dr. Tzetzo's opinion that Ms. Bryant had only moderate limitations in non-exertional categories was consistent with her “track of essentially unremarkable [MSEs] and conservative treatment with typical psychotropic medications is not indicative of more invasive deficits than as estimated by” Dr. Tzetzo and the other medical providers. (R. 29). In determining that the RFC was limited to “simple, routine and repetitive tasks,” the ALJ accounted for Ms. Burke's “more persuasive” opinion that Ms. Bryant had “poor ability to perform most basic mental work activities[.]” (R. 30, 94; see R. 589). Similarly, in limiting Ms. Bryant's social interactions, the ALJ was incorporating Dr. LaBarbera's opinion that she had mild limitations in her ability to relate adequately with others and appropriately deal with stress. (R. 29-30, 537).
Finally, the ALJ Decision is supported by Ms. Bryant's activities of daily living. (R. 23, 27, 29). As set forth in the Function Report and Ms. Bryant's Hearing testimony, even after the Assault, Ms. Bryant performed several different types of part-time jobs, including a sustained position as a home health care aide for an elderly couple, without accommodation. (R. 23, 7781, 316-17, 333-34). It is undisputed that Ms. Bryant lived independently and cooked, cleaned, did laundry, and drove for herself, even if she needed to avoid public transportation. (R. 27, 29, 316-19). The ALJ was entitled to credit the non-medical evidence reflecting that Ms. Bryant was able to engage in activities of daily living that were inconsistent with her claim that she was disabled. See Johnston v. Colvin, No. 13 Civ. 2710 (VEC) (FM), 2015 WL 657774, at *7 (S.D.N.Y. Feb. 13, 2015) (finding that non-medical evidence of claimant's ability to perform activities of daily living supported ALJ's RFC determination), adopted by, 2015 WL 1266895, at *2 (S.D.N.Y. Mar. 18, 2015).
Accordingly, “it is apparent that the ALJ considered the entire record in making [his] RFC determination, which ultimately accounted for [Ms. Bryant]'s impairments.” Bonilla Mojica, 397 F.Supp.3d at 537. As a result, the Court concludes that substantial evidence supports the ALJ's Decision that Ms. Bryant was not disabled.
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that Ms. Bryant's Motion be DENIED and the Commissioner's Motion be GRANTED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Vyskocil.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).