Opinion
20 Civ. 6663 (KMK)(JCM)
02-04-2022
JOSE MANUEL DISLA, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
JUDITH C. MCCARTHY UNITED STATES MAGISTRATE JUDGE
To the Honorable Kenneth M. Karas, United States District Judge:
Plaintiff Jose Manuel Disla (“Plaintiff”) commenced this action on August 20, 2020 pursuant to 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security (the “Commissioner”), which denied Plaintiff's application for Disability Insurance Benefits (“DIB”). (Docket No. 1). Presently before the Court are: (1) Plaintiff's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, (Docket No. 22), accompanied by a memorandum of law (“Pl. Br.”), (Docket No. 23); (2) the Commissioner's cross-motion for judgment on the pleadings and in opposition to Plaintiff's Motion, (Docket No. 24), accompanied by a memorandum of law (“Comm'r Br.”), (Docket No. 25); and (3) Plaintiff's reply in support of Plaintiff's motion for judgment on the pleadings (“Pl. Reply Br.”), (Docket No. 26). For the reasons set forth below, I respectfully recommend Plaintiff's motion be granted, the Commissioner's cross-motion be denied, and the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Report and Recommendation.
I. BACKGROUND
Plaintiff was born on September 29, 1964. (R. 150). Plaintiff applied for DIB on June 23, 2017. (R. 286-92). In the application, Plaintiff alleged a disability onset date of August 1, 2012. (R. 286). Plaintiff's application was initially denied on October 5, 2017, (R. 150-59), after which he requested a hearing on October 20, 2017. (R. 175). Hearings were held on April 5 and July 22, 2019 before Administrative Law Judge (“ALJ”) Seth I. Grossman. (R. 38-77; 78-148). ALJ Grossman issued a decision on October 17, 2019 denying Plaintiff's claim. (R. 13-23). Plaintiff requested review by the Appeals Council, which denied the request on June 18, 2020, (R. 1-4), making the ALJ's decision ripe for review.
Refers to the certified administrative record of proceedings relating to Plaintiff's application for social security benefits, filed in this action on February 12, 2021. (Docket No. 19). All page number citations to the certified administrative record refer to the page number assigned by the Social Security Administration (“SSA”).
The Court only summarizes the medical evidence relevant to the issues raised in this matter.
1. Attending Physicians at Bellevue Hospital Center
Plaintiff was treated by attending physicians at Bellevue Hospital Center (“Bellevue”) from August 14, 2012 to November 27, 2018 for a variety of issues - those that are relevant to his disability claims include HIV, and neck and back pain. (R. 417-21, 477-513, 598-1156).
On August 14, 2012, Plaintiff was seen by attending physicians at Bellevue who noted that Plaintiff's CD4 count was 380 and his viral count was undetectable. (R. 620). After a physical exam, the doctor remarked that he had a full range of motion in all extremities and was ambulatory with stable gait. (R. 621).
On January 10, 2013, Plaintiff had a follow-up visit during which he complained of intermittent back pain, though a pain assessment revealed “no pain issues at this time.” (R. 630).
The doctor noted that Plaintiff had full range of motion in his neck and a normal gait, and suggested that he take a non-steroidal anti-inflammatory drug (“NSAID”) as needed. (R. 631).
During a visit on March 17, 2013 for unrelated medical issues, Plaintiff denied any pain, including neck pain/stiffness, but doctors noted myalgia and back and joint pain. (R. 637, 642).
On May 9, 2013, Plaintiff had a routine visit to monitor his HIV, and was found to be “doing well.” (R. 649). The doctors again noted full range of motion in his neck and a normal gait. (R. 650).
At a follow-up visit on August 15, 2013, Plaintiff complained of “intermittent neck pain with radiation down [his] left arm” for which he took 200 mg of Advil, and he denied trauma to that area. (R. 654). The doctor discussed changing his medication to Naprosyn and adding a muscle relaxant. (Id.). The doctor noted that Plaintiff's neck was stiff, but he had full range of motion and a normal gait. (R. 655-56).
On December 12, 2013, Plaintiff had another routine visit to monitor his HIV, and again was noted to have full range of motion in his neck and a normal gait. (R. 663).
On January 14, 2014, Plaintiff had a follow-up appointment at which he complained that for the past two months he experienced neck pain with radiation to his left upper extremity, the shoulder, and down into the last three digits of his left hand. (R. 668). Plaintiff “denie[d] difficulty with ambulation” and said he had not tried physical therapy or conservative management. (Id.). The doctor also noted that Plaintiff “[a]mbulates without assistance.” (Id.). Plaintiff expressed a desire to try three months of conservative therapy prior to consideration of surgery, and the doctor recommended an MRI of the cervical spine, as well as pain management and physical therapy. (Id.). The medical records indicate that Plaintiff had full muscle strength (5/5) in his bilateral upper and lower extremities throughout. (Id.).
On May 15, 2014, Plaintiff presented with intermittent shooting pains down his left arm and he stated that he did not want to take pain medication. (R. 742). He had full range of motion in his neck and a normal gait. (R. 741).
On June 9, 2014, Plaintiff reported that his neck pain was worse and was associated with movement, rating the pain at ¶ 9 out of 10, indicating severe pain. (R. 744, 749). The doctor noted that his neck extension was impaired to 50 degrees with normal flexion and pain on left rotation to 70 degrees. (R. 750).
On June 19, 2014, Plaintiff was referred to the rehabilitation clinic “for evaluation of physical therapy needs for C5-C6 radiculopathy” and “left sided neck pain with radiation down his arms, initially into his 3rd, 4th and 5th digits which progressed to numbness/tingling throughout his entire hand and all 5 digits approximately 1 month ago.” (R. 754). Plaintiff reported waking up six months ago to a ‘pop' and having acute onset of a shooting sensation down his arm. (Id.). He also complained of difficulty sleeping due to shifting positions causing “shooting” sensations and causing his arm to fall asleep. (Id.). The pain was “worse with sidebending and extension of his cervical spine.” (Id.). Plaintiff stated that he took 2 to 4 ibuprofen pills twice a day but they did not provide relief; however, using a soft foam cervical collar did provide some relief. (Id.). Plaintiff denied difficulty with grasp or dexterous activities, denied dropping objects, and stated he was able to ambulate independently. (Id.). The doctor noted that Plaintiff had full active range of motion at his cervical spine and no atrophy at his upper extremity. (Id.). The doctor advised Plaintiff that he had “possible cervical radiculopathy, ” and warned him to avoid excessive flexion and extension of the cervical spine. (Id.).
On June 26, 2014, Plaintiff complained of difficulty turning his head, looking up, carrying heavy objects and making certain movements due to pain in his neck and left upper extremity. (R. 757). He described the pain as frequent to constant, like an “electric shock, ” ranking the neck pain at ¶ 7 out of 10, and the left upper extremity pain at ¶ 6 out of 10. (Id.). The neck pain disability index questionnaire produced a result of 54%. (R. 758). The doctor noted that Plaintiff walked into the clinic independently, without an assistive device. Plaintiff had tenderness in his lower cervical spine on the left side. (Id.). Movement testing revealed that repeated protraction reduced the pain in his left upper extremity, but did not change or increase his neck pain. (R. 759). The doctor prescribed physical therapy twice a week for four weeks to address the neck pain, left upper extremity radicular symptoms, posture, weakness and functional limitations due to pain. (R. 760).
On September 12, 2014 and February 5, 2015, Plaintiff had follow-up visits at which he reported no pain issues and had full range of motion in his neck and a normal gait. (R. 700-71, 787-88).
At a follow-up visit on March 31, 2015, Plaintiff complained of lower neck pain and left upper extremity numbness that had not resolved with physical therapy. (R. 802). He was noted to have full range of motion in his neck. (R. 803).
Plaintiff stated at his May 12, 2015 appointment that he had cervical spine disc disease, and his chronic neck and lower back pain was no worse than usual. (R. 835). The doctor noted that Plaintiff had full range of motion in all extremities and was ambulatory with a stable gait. (R. 835-36).
On September 17, 2015, Plaintiff reported that his neck and back still hurt, but that there was less numbness in his left upper extremity. (R. 850). The doctor noted that he had full range of motion in his neck and a normal gait. (R. 851).
During Plaintiff's March 8, 2016 visit, he reported worsening neck pain with left hand numbness, but he had full range of motion in his neck and a normal gait. (R. 861-62). The doctor recommended a cervical spine MRI and a neurosurgical appointment. (R. 862). On March 29, 2016, Plaintiff still had neck pain and was awaiting the MRI. (R. 866).
Plaintiff went to the neurosurgical clinic on May 17, 2016 because his neck pain and left hand numbness worsened. (R. 874). At the appointment, he indicated that physical therapy did not relieve the pain in his neck nor the numbness in his left hand. (Id.). Additionally, he complained of pain in his right elbow and hips and mentioned that the previously intermittent pain he experienced in his lower back had become constant. (Id.). Plaintiff stated that he took Aleve for his lower back pain, but it only provided temporary relief. (Id.). He had not tried physical therapy or epidural steroid injections to manage the pain. (Id.). Plaintiff also noted that his pain was worse with overexertion and walking or sitting/standing for too long, but was relieved when he lied flat. (Id.). Moreover, Plaintiff indicated that his strength had diminished, and he reported difficulty lifting heavy objects and opening jars. (Id.). The doctor recorded Plaintiff's gait as within normal limits, recommended conservative management for his neck pain, and referred him to pain management and physical therapy. (R. 874-75). He further advised that Plaintiff should follow up with his referring physician for a “work-up” of the lower back. (Id.).
At an appointment on June 2, 2016, Plaintiff presented with chronic neck and back pain, for which he took ibuprofen or Aleve. (R. 881). He reported recent travel to Orlando which caused his lower back pain to become “much worse” after his flight home. (Id.).
A follow-up appointment on June 28, 2016 showed that Plaintiff's lower back pain was accompanied by numbness in his left thigh and was worse when sitting and standing for long periods and carrying heavy items. (R. 885). Plaintiff continued to suffer from neck pain with radiation to his left shoulder. (Id.). Plaintiff was taking NSAIDs and a muscle relaxant, which provided some relief, and he expressed a desire to go to physical therapy. (Id.). The attending physicians noted that Plaintiff's gait was normal. (R. 886).
At a pre-operative visit on July 8, 2016, Plaintiff complained of neck and back pain that shot down his arms and caused occasional numbness or weakness, rating the pain at ¶ 8 out of 10. (R. 417). A physical exam revealed normal gait, unassisted ambulation, positive Spurling's test bilaterally, mild sensory numbness, and pain after lateral rotation of the neck. (R. 418). His range of motion in his cervical spine was limited due to pain, but “no gross deformity of injury [was] appreciated.” (Id.). The attending physician concluded that Plaintiff suffers from cervical back pain with radiculopathy, myofascial pain and HIV, and suggested cervical epidural steroid injections and muscle relaxants for spasms, as well as lifestyle modifications, physical therapy and heat/ice pads as needed. (R. 419).
On July 20, 2016, Plaintiff reported an acute worsening of his chronic neck and back pain, which was interfering with his daily living. (R. 892). He stated that he had tried physical therapy, massage, wearing his backpack on his other shoulder, and rest, all without improvement. (Id.). The pain was constantly waking him up during the night, and he ranked the pain at ¶ 8 out of 10, with it being at best a 5 out of 10 in the previous week and at worst a 9 out of 10. (Id.).
Plaintiff also complained of occasional numbness in both arms and occasional weakness compared to years ago. (Id.). Plaintiff stated that he took Aleve as needed for the back pain with temporary relief. (Id.). The doctor noted that Plaintiff's gait was normal, but that his cervical spine range of motion was limited due to pain and that he had mild sensory numbness. (R. 892-93).
Plaintiff underwent cervical epidural steroid injections on July 21 and 25, 2016, and attending physicians at Bellevue noted that he reported excellent pain relief. (R. 421). On September 27, 2016, the medical records note that Plaintiff had a normal gait and full range of motion in his neck. (R. 915).
On March 6, 2017, Plaintiff had a HIV annual comprehensive exam, during which he reported that he still had lower back pain and wanted to see a pain management doctor again. (R. 935). He noted that the muscle relaxant provided relief. (Id.). He was found to have a normal gait and full range of motion in his neck. (R. 937).
On April 14, 2017, Plaintiff had a follow-up visit with a pain management specialist for neck and lower back pain. (R. 940). He reported that he was “pain free” for five months after the epidural steroid injection, but the intermittent neck pain, which radiated into his bilateral shoulders and to his lower extremities as far as the fingers, had returned. (Id.). The doctor remarked that “the pain is associated with subjective bilateral grip weakness, ” and that Plaintiff “notes paresthesias in back of left hand.” (Id.). Plaintiff rated his neck pain at ¶ 9 out of 10, and stated that it was alleviated by hot showers and methocarbamol as needed, and was exacerbated by holding his neck in one position for too long and lifting heavy objects. (Id.). Plaintiff stated that his back pain was progressively worsening and rated it at ¶ 10 out of 10, describing it as spasmodic, constant and radiating to the iliac crests, buttocks and legs. (Id.). He said the pain was aggravated by walking on level ground and down stairs, and when he went from sitting to standing. (Id.). Plaintiff also noted “subjective leg weakness but denied paresthesias.” (Id.). His cervical and lumbar paraspinal muscles and spinous processes were tender to palpation and his gait was normal. (R. 941).
On May 4, 2017, Plaintiff underwent L5-S1 interlaminar epidural steroid injection, which improved his severe hip and leg pain. (R. 960). On May 26, 2017, Plaintiff presented with lower back pain. (R. 499). He noted sharp, constant pain in the middle of his lower back that was non-radiating, and he had no lateralizing weakness. (R. 967).
On September 1, 2017, Plaintiff again presented with lower back pain and was prescribed meloxicam. (R. 500). He reported the pain intensity at ¶ 10 out of 10, indicating the worst level of pain. (R. 976). He stated that his neck and lower back pain stemmed from bending over to pick up coins off of the floor. (R. 978).
On February 6, 2018, Plaintiff had a routine visit for his HIV, and reported lower back pain; the doctor noted that he had a normal gait and full range of motion in his neck. (R. 987-88). Plaintiff was receiving physical therapy and Botox injections and was advised to continue. (R. 988).
On November 28, 2018, the medical records indicated that Plaintiff had a normal gait and full range of motion in his neck. (R. 996).
2. Diagnostic Imaging
i. MRI of Cervical Spine
In January 2014, Plaintiff underwent an MRI of his cervical spine, which showed degenerative joint disease at ¶ 5-C6 “with encroachment on bilateral neural foramina and mild cord indentation.” (R. 740).
An MRI in March 2014 showed “C4-C5 mild to moderate right neuroforaminal narrowing and degenerative disc and facet changes at ¶ 5-C6 with encroachment on b/1 neural foraminal and mild cord indentation.” (R. 754).
Plaintiff had another MRI of the cervical spine in April 2016, which showed “cervical spondylosis with flattening of the ventral cord at ¶ 5-C6, to a lesser degree at ¶ 4-C5, with mild spinal canal stenosis at ¶ 5-C6.” (R. 418, 455, 491). There was “[m]ultilevel neural foraminal stenosis, overall slightly increased from the prior examination, with moderate to severe bilateral neural forainal stenosis at ¶ 4-C5 and C5-C6.” (Id.). There was a “slight reversal of the normal cervical lordosis, with minimal retrolisthesis of C5 on C6 similar to the prior exam.” (R. 454, 490). The vertebral bodies were normal in height, and there were no aggressive osseous lesions identified and no intrinsic spinal cord signal abnormality. (Id.). The MRI also revealed multilevel mild disc space narrowing. (Id.).
ii. MRI of Lumbar Spine
On August 11, 2016, Plaintiff had an MRI of his lumbar spine, which revealed “mild straightening of the lumbar spine curvature, ” and “mild degenerative retrolisthesis proximally 2 mm” at ¶ 5-S1, but otherwise the alignment was normal. (R. 451-52, 487-88). There was also “diminished T2 signal intensity within the L5-S1 disc space level with slightly diminished height posteriorly consistent with degenerative desiccation the nucleus pulposus.” (R. 451). There was no acute fracture, prevertebral or paravertebral fluid collection, mass lesion, intramedullary or perimedullary lesion, or abnormal epidural collection. (Id.). “Multilevel discogenic degenerative changes [were] most pronounced at the L4-5 and L5-S1 levels with moderate to mild canal stenosis and slight thecal sac effacement.” (R. 452). The MRI also showed a left renal cyst and small pelvic cyst. (Id.).
3. Julia Ioffe, M.D.
On October 5, 2017, Plaintiff saw Julia Ioffe, M.D. (“Dr. Ioffe”) at New York Neurology Associates, P.C., for lumbar facet injections. (R. 593). Plaintiff explained that he had neck and lower back pain for six years, and described his neck pain as persistent stiffness throughout the neck with radiating symptoms to both shoulders, persistent muscle tension, and difficulty turning his head in any direction due to discomfort. (Id.). He stated that he just completed physical therapy, which provided moderate relief. (Id.). Plaintiff said that he suffered from daily headaches that occurred throughout the bilateral temporal region, and were associated with pressure in the back of the eyes. (Id.). Plaintiff complained of lower back pain as well, ranking it at ¶ 9 out of 10 and he described the pain as radiating throughout the waist with occasional radicular symptoms to the left upper thigh and associated tingling sensation in the left lateral thigh. (Id.). Plaintiff reported that he had been treated at Bellevue, where prior epidural steroid injections provided one to two months of lumbar spine pain relief and four months of cervical spine pain relief. (Id.).
Plaintiff had Botox injections administered on October 19, 2017. (R. 591). He noted moderate relief from the lumbar facet joint injections and denied any new symptoms. (Id.).
On December 6, 2017, Plaintiff returned for a follow-up visit, and said that the lumbar facet injections helped his lower back pain. (R. 588). Plaintiff noted occasional flare ups of his lower back pain when exercising, and stated that he noticed significant improvement of his headaches and neck muscle spasticity after Botox injections. (Id.). He stated that his headaches were less severe and occurred less frequently, but he still had two headaches per week with associated blurry vision and sensitivity to light. (R. 588-89).
On February 7, 2018, Plaintiff had a follow-up appointment and had Botox injections again; the prior injections resulted in significant improvement in his neck pain, stiffness and headaches. (R. 586). Plaintiff complained that the non-radiating lower back pain had returned, which he described as stiffness with turning and bending. (Id.). He noted that his symptoms were constant and got progressively worse towards the end of the day. (Id.). Plaintiff also stated that he had bilateral knee pain on the medial aspect of the knee, with greater pain on the left side, with occasional swelling, and a buckling and locking sensation. (Id.). He said he had difficulty going from a seated to a standing position. (Id.). Plaintiff was doing physical therapy for the lower back pain with mild relief. (R. 586-87). Dr. Ioffe recommended continuing physical therapy and taking meloxicam. (R. 587).
On February 21, 2018, Plaintiff had a follow-up visit with Dr. Ioffe, where she administered a lumbar facet joint injection and took an X-ray of his knees. (R. 584). Plaintiff reported continued pain in his knees and lower back, similar to what he described during his prior visit. (Id.).
Plaintiff returned on March 27, 2018, and stated that his knee pain had resolved. (R. 582). He also noted improvement with lower back pain approximately two weeks after the lumbar facet joint injection. (Id.).
On May 8, 2018, Plaintiff saw Dr. Ioffe again because his lower back pain with radicular symptoms to his lower extremities had returned. (R. 579). He noted weakness of the lower extremities that worsened with prolonged sitting or walking. (Id.). He also reported intermittent paresthesias in the left lower extremity. Plaintiff continued to experience relief after the Botox injection for migraines and cervical dystonia. (Id.).
On June 6, 2018, Plaintiff had a follow-up visit with Dr. Ioffe, where she administered another epidural steroid injection. (R. 576). Plaintiff reported that his symptoms continued in similar character and distribution, and denied any new symptoms. (Id.).
On November 7, 2018, Plaintiff returned to Dr. Ioffe with exacerbation of his lower back, left knee and neck pain. (R. 574). Plaintiff reported that all his symptoms worsened over the previous two weeks, noting left-sided lower back pain with radicular symptoms and associated weakness to the left extremity, as well as difficulty ambulating. (Id.). Plaintiff also stated that he had pain, swelling, and difficulty with range of motion in his left knee. (Id.). Plaintiff exhibited neck pain and muscle tension throughout his left side, with radiating symptoms to the left arm. (Id.). He noted that he had difficulty sleeping. (Id.). A general examination revealed neck tenderness on the trapezius muscle, paraspinal spasms, muscle spasms throughout the splenius capitus, restricted range of motion of the cervical spine with lateral bending and rotation, painful flexion and extension, and tenderness and restricted range of motion in both knees. (Id.). A neurologic exam showed tenderness and paravertebral muscle spasm in the L-S area, but a normal gait and normal sensation. (Id.). Tenderness and muscle spasms were appreciated upon palpation of the L-S spine, with painful but non-restricted range of motion with extension and lateral movement. (Id.). Dr. Ioffe recommended physical therapy, and prescribed gabapentin as well as meloxicam. (R. 575).
On November 14, 2018, Plaintiff saw Dr. Ioffe for nerve conduction studies. (R. 549). Dr. Ioffe noted that “[e]valuation of the left sural sensory nerve showed reduced amplitude, ” but “[a]ll remaining nerves were within normal limits.” (R. 551). Dr. Ioffe also stated that “[r]ight side comparison data for the ulnar sensory nerve indicates abnormal L-R amplitude difference, ” but all remaining left versus right side differences were within normal limits. (Id.). All F wave latencies and side latency differences were also within normal limits. (Id.). Dr. Ioffe remarked that “H-reflex studies indicate that the right tibial H-reflex has prolonged latency, ” but all other H-reflex latencies and side latency differences were within normal limits. (R. 552). She also noted that “[n]eedle evaluation of the left anterior tibialis, the left peroneus longus, the left medial gastrocnemius, and the left exterior hallucis longus muscles showed increased insertional activity, slightly increased spontaneous activity, and reduced recruitment.” (Id.). The left L5 paraspinal and the left S1 paraspinal muscles showed increased insertional activity and moderately increased spontaneous activity, but all remaining muscles showed no evidence of electrical instability. (Id.). Dr. Ioffe concluded that Plaintiff suffered from left L5-S1 lumbosacral radiculopathy. (Id.). At this visit, Plaintiff reported 50% relief from the knee injection, but said his left-sided lower back pain continued with no improvement from the prior visit. (R. 571). Dr. Ioffe recommended continuing physical therapy and meloxicam. (R. 572). On November 15, 2018, Plaintiff presented for a lumbar epidural steroid injection in the L4-L5 and L5-S1 regions. (R. 568).
Plaintiff saw Dr. Ioffe on December 5, 2018, for a follow-up visit, noting significant improvement with his lower back and bilateral knee pain, and denying any new symptoms. (R. 565).
4. Ram Ravi, M.D. - Consultative Examinations
Plaintiff saw Ram Ravi, M.D. (“Dr. Ravi”) of Industrial Medicine Associates, P.C. on September 27, 2017 for an internal medicine consultative examination. (R. 514). Plaintiff reported suffering from neck and back pain for five years. (Id.). His pain was sharp and constant, and radiated down his left arm and leg. (Id.). Plaintiff rated it as 10 out of 10 on the pain scale. (Id.). He also complained of headaches for the past year, which occurred five times weekly, but at the time of the examination, his condition was stable and he was asymptomatic. (Id.). He stated that he had been HIV-positive for six years, but his exertional fatigue symptoms were stable with no acute changes. (Id.). Plaintiff “appeared to be in no acute distress, ” though he had discomfort with sitting, his gait was antalgic, and he was unable to walk on his heels and toes. (R. 515). Dr. Ravi noted that Plaintiff used a cane to stand and for pain, weightbearing and balance, and that the cane was prescribed by a doctor as medically necessary. (Id.). Plaintiff declined to ambulate without the cane, and with it, his gait was moderately antalgic. (Id.). He needed no help changing for the exam and was able to rise from the chair without difficulty, but he declined getting on and off the exam table. (Id.).
A musculoskeletal examination revealed that Plaintiff's cervical spine flexion was 30 degrees, extension 20 degrees, rotation 40 degrees and lateral flexion 20 degrees. (R. 516). Plaintiff declined a straight leg raise and lumbar spine and hip range-of-motion tests. (Id.). His shoulder forward elevation was 90 degrees and abduction 90 degrees, and he had full range of motion of elbows, forearms and wrists bilaterally. (Id.). Plaintiff's knee flexion was 37 degrees, ankle dorsiflexion 5 degrees, and plantar flexion 10 degrees. (Id.). Dr. Ravi concluded that Plaintiff had moderate limitations in sitting, standing, walking, pushing, pulling, lifting, carrying and overhead activities, and had to avoid driving, bending, squatting and climbing stairs due to his neck and back pain. (R. 517). He also opined that Plaintiff needed scheduled interruptions due to headaches. (Id.).
Plaintiff saw Dr. Ravi for a second consultative examination on January 2, 2019. (R. 524). Plaintiff explained that he suffered from neck and back pain for eight years, and the pain traveled down his left arm and leg and was sharp and constant; he rated it a 9 out of 10. Dr. Ravi noted that “claimant appeared to be in no acute distress, ” had an antalgic gait, was unable to walk on his heels or toes, and declined squatting due to pain. (R. 525). Dr. Ravi remarked that Plaintiff always used a cane to stand and for pain, weightbearing and balance. (Id.). The cane was prescribed by a doctor and Dr. Ravi opined that it was medically necessary. (Id.). Plaintiff declined to ambulate without the cane due to his pain, and with the cane, his gait was moderately antalgic. (Id.). Dr. Ravi stated that Plaintiff needed no help changing for the exam and was able to rise from the chair without difficulty, but declined getting on and off the exam table due to pain. (Id.).
Plaintiff declined doing the straight leg raise test and range-of-motion testing for his hip and cervical and lumbar spine because of pain. (Id.). Dr. Ravi remarked that Plaintiff had no spinal or paraspinal tenderness, “no SI joint or sciatic notch tenderness, ” no spasm and no scoliosis or kyphosis. (Id.). Dr. Ravi noted that Plaintiff had “[s]houlder forward elevation 50 degrees bilaterally and abduction 50 degrees bilaterally.” (Id.). His elbow flexion/extension was full for the right arm, 130 degrees for the left arm, and “pronation and supination [was] full bilaterally.” (Id.). Plaintiff had no joint inflammation, effusion or instability, no sensory abnormality, and had full strength in his proximal and distal muscles. (Id.). In his lower extremities, Plaintiff had knee flexion/extension of 75 degrees in his right leg and 35 degrees in his left leg. (Id.). His ankle dorsiflexion was 10 degrees in the right leg and 5 degrees in the left, and plantar flexion was 20 degrees on the right and 10 degrees on the left. (Id.). He had full strength in his proximal and distal muscles bilaterally. (Id.). His lower extremities showed no muscle atrophy or sensory abnormality, no joint effusion, inflammation or instability, and his reflexes were physiologic and equal. (R. 526).
Dr. Ravi opined that Plaintiff had no limitations sitting and moderate limitations standing, walking, pushing, pulling, lifting and carrying. (Id.). He also concluded that Plaintiff should avoid bending due to neck and back pain. (Id.).
In a medical source statement, Dr. Ravi noted that Plaintiff could occasionally lift and carry up to 20 pounds, but could never lift or carry more than 20 pounds. (R. 528). He stated that Plaintiff could sit for 6 hours at one time without interruption, stand for 3 hours at one time without interruption, and walk for 3 hours at one time without interruption. (R. 529). During an 8-hour workday, Dr. Ravi opined that Plaintiff could sit for 8 hours, stand for 4 hours, and walk for 4 hours. (Id.). Dr. Ravi acknowledged that Plaintiff required the use of a cane to ambulate and that it was medically necessary, and noted that Plaintiff could walk one block without a cane. (Id.). Plaintiff could occasionally reach overhead, could generally push/pull, and could frequently handle, finger and feel. (R. 530). Plaintiff could also occasionally operate foot controls. (Id.). Dr. Ravi opined that Plaintiff could never climb stairs and ramps, climb ladders or scaffolds, balance, stoop, kneel, crouch, or crawl. (R. 531). Plaintiff could never tolerate exposure to unprotected heights, moving mechanical parts and operating a motor vehicle, and could occasionally tolerate exposure to humidity and wetness, dust, odors, fumes and pulmonary irritants, extreme cold and heat, and vibrations. (R. 532). Dr. Ravi noted that Plaintiff could perform activities like shopping; travel without a companion for assistance; ambulate without using a wheelchair, walker or 2 canes or 2 crutches; prepare a simple meal and feed himself; care for his personal hygiene; and sort, handle or use paper/files. (R. 533). However, Plaintiff could not walk a block at a reasonable pace on rough or uneven surfaces, use standard public transportation, nor climb a few steps at a reasonable pace with the use of a single handrail. (Id.).
B. Non-Medical Evidence
1. Plaintiff's Function Report
On August 28, 2017, Plaintiff completed a function report. (R. 335-42). Plaintiff stated in the report that he lived in an apartment with his family, and spent his days reading, sleeping, watching television, meditating, praying, listening to music, and playing games online. (R. 335, 339). Before his injuries, Plaintiff could dance, bowl, go to the gym, take long walks, ride his bike, and stand and sit for long periods of time. (R. 336). He stated that his injuries impacted his sleep, and that he would wake up repeatedly in the night due to pain and discomfort, restlessness and insomnia. (Id.). Plaintiff noted that his mother prepared his meals for him because he lacked the desire to cook for himself. (R. 337). His appetite also decreased considerably. (Id.). In terms of chores, Plaintiff made his bed and ironed, but could not mop or sweep or do anything that required lifting or straining. (R. 338). He said he mostly stayed at home unless he had appointments, but could travel on his own, and either would take a cab if he was in a lot of pain or public transportation if in moderate pain. (Id.). Plaintiff was able to handle money and his ability to do so was not impacted by his injuries or conditions. (Id.). He often socialized with friends who visited him or through online chats, and he attended church on Sundays.
Plaintiff reported that he could not climb stairs, lift anything over five pounds, sit or stand for long periods of time, or walk long distances due to pain. (R. 340). He could kneel and squat with difficulty, and reaching caused pain in his neck. (Id.). He stated that he used a cane when walking long distances, as recommended by doctors to ease pressure. (R. 341). He could walk a block or two before he had to stop and rest for about five minutes. (Id.). Plaintiff noted that he did not have problems paying attention, getting along with bosses, teachers or others in authority, could finish what he started and could follow spoken and written instructions. (R. 341-42). Stress or changes in schedule caused Plaintiff to experience sleeplessness, fatigue, lack of appetite and anxiety. (R. 342). Plaintiff also stated that he had trouble remembering things; for instance, he sometimes forgot which medication he had taken and sometimes took the same one twice. (Id.).
2. Plaintiff's Testimony
William Arnonin, Esq. represented Plaintiff at his first hearing on April 5, 2019. (R. 40). Plaintiff testified that he last worked in 2008. (R. 42). He stated that he did not do housekeeping, but he would clean the basement and his bedroom. (R. 43). For fun, Plaintiff read informative articles about science. (Id.). Plaintiff testified that he was not capable of working because he had constant pain in his neck that shot down through his left arm and down his left leg, and he could not sit for too long. (R. 45). He explained that it hurt to hold his head straight or move it in any direction, and that he had trouble finding a comfortable position when he was sitting and lying down. (Id.). Plaintiff said he could not do a sedentary job because he could not be still or in one position for too long, and could only sit for up to an hour at a time. (R. 46). Plaintiff previously worked in a sedentary role at Computer Shack, but his job relocated. (R. 47). Plaintiff testified that he used a cane every day and needed it for balance. (R. 49). Plaintiff explained that he saw Dr. Ioffe, a neurologist who helped him manage his pain through pain medication, physical therapy and epidural shots. (R. 50). Sometimes his pain was so bad that it affected his ability to walk, and the epidural shots helped relax his muscles. (Id.). Plaintiff also testified that he suffered from severe migraines that would force him to lie down. (R. 50-51). Dr. Ioffe gave Plaintiff Botox injections all around his skull to alleviate the severity and frequency of his headaches. (R. 51). The injections diminished the frequency of Plaintiff's migraines from every day to three or four times per week, with the most intense part of each migraine lasting three to four hours. (Id.). To alleviate the migraines, Plaintiff also drank black coffee, took two Tylenol tablets and lied down with a sleeping mask for about an hour. (Id.). This means that in any given week, Plaintiff would wear a sleeping mask for a total of three to four hours. (Id.).
Plaintiff had a second, supplemental hearing on July 22, 2019 because at the first hearing, there was no orthopedic medical expert available to testify. (R. 73-74). At the second hearing, Plaintiff was again represented by Attorney William Arnonin. Plaintiff testified that he was HIV-positive and his last CD4 count was about 520. (R. 83). He did not have any opportunistic infections, or any hospitalizations related to HIV in the years 2016 or 2017, and his viral load in those two years was undetectable. (Id.). His CD4 count had gotten better with time and as the medications improved. (R. 84). Plaintiff testified that prior to December 31, 2017, the date last insured, he had pain in his neck and lower back, and he was being treated for it at Bellevue by Dr. Ioffe. (R. 85-86). Plaintiff stated that Dr. Ioffe administered lumbar injections to him prior to the end of 2017. (R. 93). He had three semi-herniated discs in his cervical spine and four in the lumbar, which compressed his nerves and caused him constant pain and severe headaches. (R. 87). He repeated his testimony from the prior hearing that moving his head in different directions caused him pain that radiated down his arm. (R. 87-88). Plaintiff was able to hold his head straight for about five minutes and then had to move it to a different position. (R. 88). Plaintiff also stated that sitting for long periods of time was unbearable for him and he spent most of the day lying down. (R. 88-89). Plaintiff again testified that he used a cane for support when he walked and that he started using the cane in October 2016 at his doctor's suggestion. (R. 90-92). Plaintiff said he was unable to do a desk job because after sitting for an hour, the pain would become so intense that it would interfere with his focus, and he would have to get up or lie down for about an hour. (R. 93-94). Plaintiff also mentioned that he felt like a zombie after he took his meloxicam medication. (R. 94-95). He also took prescription ibuprofen and sometimes took Aleve. (R. 95). Plaintiff started crying during his testimony, which he said was due to his pain and talking about it; he stated that he would cry from the pain frequently. (Id.). He rated his pain at ¶ 8 out of 10 generally, and described it as a 10 out of 10 at the hearing, with 10 meaning he wanted to go to the emergency room. (R. 96). He said his pain was frequently a 10. (Id.). Plaintiff was last in the emergency room a week prior to this hearing, and then a month before that. (Id.). In 2017, he estimated that he was in the Bellevue emergency room four or five times. (R. 97). At this point, Plaintiff's counsel noted that he was having difficulty securing some of the Bellevue records, including those relating to the emergency room visits. (Id.).
Plaintiff stated that he had difficulty with many daily activities like bending down to tie his shoelaces, but he was able to shower every day. (R. 99-100). Plaintiff had previously worked in a sedentary job with computers, but testified that he could no longer do that work because mentally, he lacked the necessary level of concentration and physically, he could not sit for that long. (R. 100-01). Plaintiff further testified that surgery would be the last resort. (R. 101).
3. Vocational Expert Testimony
Vocational Expert (“VE”) Cestar testified that Plaintiff's most recent work consisted of employment as a payroll clerk or data entry clerk. (R. 54). The ALJ posed a hypothetical to VE Cestar, asking him whether an individual who could perform the full range of sedentary work, could handle these jobs, and VE Cestar testified that both of these jobs can be done by such a person. (Id.). Attorney Arnonin then posed a hypothetical to VE Cestar, adding the additional limitation that this individual would randomly be out of commission and would need to be in a dark room for an hour at a time, three times per week. (Id.). VE Cestar testified that such an individual could still perform those two jobs as he could be off task for three hours in a 48-hour work week. (R. 55). VE Cestar acknowledged that if an individual were off task a minimum of 15 percent of a day, then he could not perform those jobs. (R. 57). He also testified that any absences for longer than one month would be excessive. (R. 58). He stated that if a hypothetical person was unable to frequently finger, he would be unable to perform the two jobs. (Id.). He further noted that the jobs in question did not require more than frequent overhead reaching, but both jobs required frequent reaching, handling and fingering. (R. 58-59). VE Cestar interpreted reaching to mean in front of or below the body. (Id.).
Plaintiff then clarified that the main function of his job at the Computer Fund Services was training rather than data entry, and that he was a team leader in a financial company that dealt with proxy fights. (R. 60-61). Plaintiff estimated that in this role, he spent approximately six hours standing or walking. (R. 62). VE Cestar was unable to find an exact job title for someone who supervised a proxy fight, (R. 66-67), and ultimately stated that “supervisor real estate office” and “supervisor order takers” involved some of the skills from Plaintiff's prior job. (R. 68-70). He stated that both jobs required frequent reaching and handling and occasional fingering. (R. 71-72).
C. Medical Expert Testimony of Darius Ghazi, M.D.
Darius Ghazi, M.D. (“Dr. Ghazi”) testified as a medical expert at Plaintiff's July 22, 2019 hearing. (R. 101-47). Dr. Ghazi stated that Plaintiff's medically determinable impairment was very mild to moderate neck and back pain in the cervical and lumbar region, with some radiculopathy and encroachment of the nerve roots, degenerative disc disease at ¶ 5-C6 cervical spine and L5-S1 lumbar spine, as well as very mild stenosis. (R. 102-03). Dr. Ghazi clarified that when he said the impairment is mild to moderate, he was basing it upon a combination of the imaging and the physical results. (R. 127). Plaintiff also had some pain radiating down the left arm and leg, but otherwise “his sensory and reflexes are pretty much normal.” (R. 103). Dr. Ghazi opined that these impairments were mostly age-appropriate for Plaintiff, who is 54 to 55 years old. (R. 102-03). He also pointed out that Plaintiff had relief with epidural injections, but did not require any surgical intervention. (R. 103). Dr. Ghazi concluded that Plaintiff was capable of engaging in sedentary work, and mentioned that “moderate activity would be more suited for his type of ability.” (R. 103-04). He also stated that there was no reason to limit his ability to reach, finger or handle because his grips were adequate and he could reach above shoulder level, handle objects, finger, grasp and squeeze despite the fact that he had some radiation of pain to the left arm. (R. 104). After this testimony, Dr. Ghazi stated that he was looking at the papers for someone else's case because he was preparing the next case while doing this one. (R. 107, 109).
The hearing transcript for Dr. Ghazi's testimony is hard for the Court to follow and includes many side tangents and unrelated conversations between Plaintiff's attorney and the ALJ. (See, e.g. R. 116-20, where the ALJ and Plaintiff's attorney discuss the areas of law in which they had previously practiced, and refer to The Godfather and the mafia). It is also unclear from the transcript whether Dr. Ghazi had the correct case before him when providing his testimony. Thus, the Court agrees with the ALJ that Dr. Ghazi's opinions deserve little, if any, weight.
D. The ALJ's Decision
ALJ Grossman determined that Plaintiff last met the insured status requirements of the Social Security Act (“Act”) on December 31, 2017. (R. 15). Thereafter, ALJ Grossman applied the five-step procedure established by the Commissioner for evaluating disability claims. See 20 C.F.R. § 404.1520(a). (R. 15-22). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity from his alleged disability onset date, August 1, 2012, through December 31, 2017, his date last insured. (R. 15). At step two, the ALJ determined that Plaintiff had the following severe impairments: (1) cervical degenerative disc disease, and (2) lumbar degenerative disc disease. (Id.). The ALJ further found that Plaintiff's HIV, daily headaches and depression were non-severe impairments. (R. 16-17). At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). (R. 18).
The ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to perform the full range of sedentary work as defined in 20 C.F.R. § 404.1567(a). (Id.). In arriving at the RFC, the ALJ considered all of Plaintiff's symptoms and their consistency with the objective medical evidence and other evidence in the record. (Id.). The ALJ concluded that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (R. 19). The ALJ reviewed the opinion evidence in the record, finding Dr. Ravi's opinion from September 27, 2017 “somewhat persuasive, ” and finding Dr. Ghazi's opinion “minimally persuasive.” (R. 21). The ALJ found Dr. Ravi's opinion from January 2, 2019 “not persuasive” because it was done outside the relevant time period and more than a year after the date last insured. (R. 22).
At step four, the ALJ determined that Plaintiff could perform his past relevant work as a payroll clerk and data entry clerk because these jobs did not require the performance of work-related activities precluded by his RFC. (R. 22). The ALJ thereafter concluded that Plaintiff was not disabled under the Act at any time from August 1, 2012 through December 31, 2017. (Id.).
In a footnote, Plaintiff mentions that the VE incorrectly identified Plaintiff's prior jobs as data entry clerk and payroll clerk, and suggests that on remand, the ALJ should have the VE correctly identify Plaintiff's past relevant work. (Pl. Br. at 10, n.4). In his work history report, Plaintiff described his job duties at Computershare Fund Services as follows: “train staff, sort and distribute workload, research timesheets, payroll, weekly progress reports, data entry.” (R. 346). He stated that in this job, he walks for one hour each day, stands for two hours, sits for five hours and carries less than ten pounds. (Id.). He also mentioned that he supervises other people in this position. (Id.). At the April 2019 hearing, the VE at first identified Plaintiff's past work as payroll clerk and data entry clerk, which are both sedentary roles with a Specific Vocational Preparation (“SVP”) of four, and the VE testified that a person who could do the full range of sedentary work could do both jobs. (R. 54). Later in the hearing, Plaintiff testified that the main function of his job at Computershare Fund Services was training rather than data entry, causing the ALJ to comment that data entry and payroll clerk don't sound like the right jobs and “it sounds like he was more of a supervisor.” (R. 60). The Court notes that this supervisory and training function was clearly stated in Plaintiff's work history report, and Plaintiff did not improperly revise his job description as the Commissioner suggests. (Comm. Br. at 25). The Court does acknowledge that Plaintiff testified at the hearing that this job required about six hours of standing each day, rather than the two hours he had indicated in the work history report, which creates an inconsistency. (R. 62). In any event, even if the VE and ALJ credited only the two hours of standing per day, the VE had trouble finding an exact job title that matched the training and supervisory responsibilities, ultimately narrowing it down to supervisor real estate, which included some but not all of the skills that Plaintiff had, and was a sedentary job with an SVP of 7, and supervisor order takers, which was a sedentary job with an SVP of 5. (R. 68-72). The Court finds that the hearing testimony regarding the proper characterization of Plaintiff's past work is not accurate - it appears that none of the jobs discussed by the VE properly account for Plaintiff's work responsibilities. On remand, I respectfully recommend that the ALJ reexamine the D.O.T. job description that best fits Plaintiff's past relevant work responsibilities at Computershare Fund Services. See Albizu v. Berryhill, 335 F.Supp.3d 355, 382 (E.D.N.Y. 2018) (finding that the ALJ improperly relied on vocational expert's testimony where vocational expert's proposed job did not resemble claimant's past work and directing the ALJ on remand to reexamine the D.O.T. job description that fits plaintiff's past relevant work).
II. DISCUSSION
Plaintiff argues that the ALJ's decision should be reversed and remanded for further administrative proceedings because the ALJ's RFC determination is not supported by substantial evidence, as the ALJ improperly substituted his own lay opinion for the opinion of a physician and failed to consider the fact that Plaintiff requires a cane to ambulate and suffers from debilitating headaches. (Pl. Br. at 10-13). The Commissioner argues that the ALJ's decision should be affirmed because both the RFC and the ALJ's finding that Plaintiff could perform his past relevant work are supported by substantial evidence; namely, the ALJ properly considered the medical evidence and opinions in the record and Plaintiff's contentions are without merit. (Comm'r Br. at 16-26).
A. Legal Standards
A claimant is disabled if he or she “is unable ‘to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.'” Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)). The SSA has enacted a five-step sequential analysis to determine if a claimant is eligible for benefits based on a disability:
(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a “residual functional capacity” assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008); 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). The claimant has the general burden of proving that he or she is statutorily disabled “and bears the burden of proving his or her case at steps one through four.” Cichocki, 729 F.3d at 176 (quoting Burgess, 537 F.3d at 128). At step five, the burden then shifts “to the Commissioner to show there is other work that [the claimant] can perform.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 445 (2d Cir. 2012).
When reviewing an appeal from a denial of SSI or disability benefits, the Court's review is “limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); see also 42 U.S.C. § 405(g). Substantial evidence means “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)). Put another way, a conclusion must be buttressed by “more than a mere scintilla” of record evidence. Id. (quoting Consolidated Edison, 305 U.S. at 229). The substantial evidence standard is “very deferential” to the ALJ. Brault, 683 F.3d at 448. The Court does not substitute its judgment for the agency's “or determine de novo whether [the claimant] is disabled.” Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (alteration in original) (quoting Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)).
However, where the proper legal standards have not been applied and “might have affected the disposition of the case, [the] court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). Therefore, “[f]ailure to apply the correct legal standards is grounds for reversal.” Id.
On January 18, 2017, the Social Security Administration (“SSA”) considerably revised its regulations for evaluating medical evidence. The rules went into effect on March 27, 2017, and therefore, apply to the instant case. Under the new regulations, the treating physician rule no longer applies. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Therefore, no special deference is given to the treating physician's opinion. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, “[the Commissioner] will articulate in [his] determination or decision how persuasive [he] find[s] all of the medical opinions.” 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The updated regulations also define a “medical opinion” as “a statement from a medical source about what [the claimant] can still do despite [their] impairment(s) and whether [they] have one or more impairment-related limitations or restrictions” in their “ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling or other physical functions . . . ” 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). Thus, a medical opinion must discuss both a claimant's limitations and “what [the claimant] is still capable of doing” despite those limitations. Michael H. v. Saul, 5:20-CV-417(MAD), 2021 WL 2358257, at *6 (N.D.N.Y. June 9, 2021). Relatedly, conclusory statements by a claimant's provider concerning issues reserved to the Commissioner — for instance, whether the claimant is disabled under the Act — are “inherently neither valuable nor persuasive” and will not be analyzed by the ALJ. 20 C.F.R. §§ 404.1520b(c), 416.920b(c).
B. ALJ's Duty to Develop the Record
Initially, the Court must be satisfied that the record is fully developed before determining whether the Commissioner's decision is supported by substantial evidence. See Smoker v. Saul, No. 19-CV-1539(AT)(JLC), 2020 WL 2212404, at *9 (S.D.N.Y. May 7, 2020). “[I]n light of the ‘essentially non-adversarial nature of a benefits proceeding[, ]'” “[a]n ALJ, unlike a judge at trial, has an affirmative duty to develop the record.” Vega v. Astrue, No. 08-Civ-1525(LAP)(GWG), 2010 WL 2365851, at *2 (S.D.N.Y. June 10, 2010) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)). “This duty is present even when a claimant is represented by counsel.” Atkinson v. Barnhart, 87 Fed.Appx. 766, 768 (2d Cir. 2004). “Where there are gaps in the administrative record, remand to the Commissioner for further development of the evidence” is appropriate. Sobolewski v. Apfel, 985 F.Supp. 300, 314 (E.D.N.Y. 1997). “[W]here there are no obvious gaps in the administrative record, and where the ALJ already possesses a ‘complete medical history,' the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (citing Perez v. Chater, 77 F.3d 41, 48 (2d. Cir. 1996)); see also Pellam v. Astrue, 508 Fed.Appx. 87, 90 (2d Cir. 2013). “Whether the ALJ has satisfied this duty to develop the record is a threshold question.” Smoker, 2020 WL 2212404, at *9.
Here, the Court finds that there are no obvious gaps in the record. The record consists of extensive medical records from Bellevue, (R. 565-93), and Dr. Ioffe, (R. 549, 551-52, 565, 568, 571-72, 574, 576, 579, 582, 584, 586, 588, 591, 593); numerous diagnostic records, (R. 418, 451-52, 454-55, 487-88, 490-91, 740, 754); medical opinions from the consultative examiner, Dr. Ravi, (R. 514-17, 524-33); Plaintiff's testimony, (R. 40-51, 73-101), and Plaintiff's function report, (R. 335-42). Further, Plaintiff's attorney stated at both hearings that he had no objections to the evidence on the grounds that there were gaps in the record. (R. 40, 80). See David B. C. v. Comm'r of Soc. Sec., No. 1:20-CV-01136(FJS)(TWD), 2021 WL 5769567, at *7 (N.D.N.Y. Dec. 6, 2021) (finding that the ALJ fulfilled her duty to develop the record where “Plaintiff did not object to the contents of the record or identify any gaps that need to be filled… In fact, Plaintiff's counsel affirmatively stated the record was complete.”).
Accordingly, I respectfully recommend finding that the ALJ fulfilled his duty to develop the record.
C. The ALJ's RFC Assessment
The RFC is an “individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, at *2). The RFC determination is reserved to the Commissioner. Monroe v. Comm'r of Soc. Sec., 676 Fed.Appx. 5, 8 (2d Cir. 2017). When determining the RFC, the ALJ considers “a claimant's physical abilities, mental abilities, [and] symptomatology, including pain and other limitations that could interfere with work activities on a regular and continuing basis.” Weather v. Astrue, 32 F.Supp.3d 363, 376 (N.D.N.Y. 2012) (citing 20 C.F.R. § 404.1545(a)). Nevertheless, ALJs are not medical professionals. See Heather R. v. Comm'r of Soc. Sec., 1:19-CV-01555 (EAW), 2021 WL 671601, at *3 (W.D.N.Y. Feb. 22, 2021). Therefore, the ALJ must refrain “from ‘playing doctor' in the sense that [he] may not substitute his own judgment for competent medical opinion.” Quinto v. Berryhill, Civil Action No. 3:17-cv-00024 (JCH), 2017 WL 6017931, at *12 (D. Conn. Dec. 1, 2017) (internal citations omitted). Accordingly, where the record shows that the claimant has more than “minor physical impairments, ” Jaeger-Feathers v. Berryhill, 1:17-CV-06350 (JJM), 2019 WL 666949, at *4 (W.D.N.Y. Feb. 19, 2019), an ALJ is not qualified “to assess residual functional capacity on the basis of bare medical findings, ” Kinslow v. Colvin, Civil Action No. 5:12-cv-1541 (GLS/ESH), 2014 WL 788793, at *5 (N.D.N.Y. Feb. 24, 2014).
1. ALJ's Substitution of his own Lay Opinion for that of a Physician
Plaintiff argues that although the ALJ found Dr. Ravi's 2017 opinion “somewhat persuasive” and “generally consistent with the medical evidence, ” the ALJ did not include Dr. Ravi's limitations in Plaintiff's RFC assessment. (Pl. Br. at 11). The Commissioner contends that Dr. Ravi's examination findings and opinion support the ALJ's RFC determination that Plaintiff retained the capacity to perform the full range of sedentary work and that the ALJ properly evaluated the persuasiveness of Dr. Ravi's 2017 assessment under the revised regulations, explicitly considering the two key factors of supportability and consistency. (Comm'r Br. at 17-19).
Dr. Ravi's 2017 consultative examination constitutes the only medical opinion in the record as to Plaintiff's physical impairments from the relevant period. In his examination report, Dr. Ravi opined that Plaintiff has moderate limitations in sitting, standing, walking, pushing, pulling, lifting, carrying and conducting overhead activities; that he had to avoid driving, bending, squatting and climbing stairs due to his neck and back pain; and that he needs scheduled interruptions due to his headaches. (R. 517). Dr. Ravi also noted that Plaintiff used a cane to stand and for pain, weightbearing and balance, and that the cane was prescribed by a doctor as medically necessary. (R. 515). The ALJ acknowledged that Dr. Ravi included these limitations in his opinion and found Dr. Ravi's opinion “somewhat persuasive” because it is generally consistent with the medical evidence, but he did not find that the Plaintiff's cane was always medical necessary due to contrary records from Bellevue. (R. 21). The ALJ then concluded that Plaintiff had the RFC to perform the full range of sedentary work without any limitations. (R. 18).
The ALJ failed to include the following limitations in Plaintiff's RFC or explain his reasoning for omitting them: moderate limitations in sitting, standing, walking, pushing, pulling, lifting, carrying, conducting overhead activities, bending, squatting and climbing stairs, and Plaintiff's need for scheduled interruptions due to his headaches.
The RFC's silence as to sitting and standing limitations is problematic because in order for the ALJ to make a proper determination about Plaintiff's RFC to engage in sedentary work, he was required to review evidence that showed whether Plaintiff “could sit for six hours of an eight hour workday, do a certain amount of walking and standing, and lift up to ten pounds.” Woodford v. Apfel, 93 F.Supp.2d 521, 529 (S.D.N.Y. 2000) (citing 20 C.F.R. § 404.1567). “Under such circumstances, the RFC must be specific as to the frequency of the individual's need to alternate sitting and standing.” Kimberly M. v. Comm'r of Soc. Sec., No. 19-CV-1546 (LJV), 2020 WL 6947346, at *3 (W.D.N.Y. Nov. 25, 2020) (internal citations omitted); see also Falk v. Colvin, No. 15-CIV-3863(ER)(KNF), 2016 WL 4411423, at *5 (S.D.N.Y. Aug. 18, 2016) (ALJ's RFC assessment was incomplete where “the ALJ made no determination as to the frequency with which Plaintiff would need to alternate between sitting and standing.”). “That is because a claimant's need to alternate among sitting, standing, and walking ‘may erode the occupational base'—for example, by making even sedentary or light work impossible to perform.” Linda H. v. Comm'r of Soc. Sec., No. 19-CV-1244(LJV), 2021 WL 2075437, at *3 (W.D.N.Y. May 24, 2021). The record indicates that Dr. Ravi found Plaintiff had “[m]oderate limitations to sitting [and] standing.” (R. 517). In addition, Plaintiff complained during Bellevue visits of increased pain when he sat or stood for too long, (R. 579, 874, 885), and testified about this at both his April and July 2019 hearings, (R. 45, 88-89, 93-94). Because the ALJ did not include any discussion in the RFC about Plaintiff's need to alternate between sitting and standing, and failed to explain why he rejected Dr. Ravi's findings on this issue despite finding his opinion “somewhat persuasive, ” the Court cannot “determine whether the ALJ considered the limitations or overlooked them altogether.” Kimberly M., 2020 WL 6947346 at *4.
Accordingly, I respectfully recommend remanding this matter to the ALJ for proper consideration of these limitations and their impact on the RFC.
2. Plaintiff's Headaches
Plaintiff argues that while the ALJ acknowledged that Plaintiff suffers from daily headaches in his step two analysis, he mistakenly determined that they were not severe and failed to include limitations for headaches in the RFC. (Pl. Br. at 12-13). The Commissioner argues that the ALJ acted well within his province to reconcile conflicting evidence about Plaintiff's headaches and did not need to include this limitation in the RFC. (Comm. Br. at 23-24).
When making an RFC determination, an ALJ must consider both severe and non-severe impairments. See Parker-Grose v. Astrue, 462 F. App'x. 16, 18 (2d Cir. 2012) (summary order); see also 20 C.F.R. § 404.1545(a)(2) (“We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not ‘severe' . . . when we assess your [RFC].”). Even if an ALJ finds that a claimant's non-severe impairments result in only “mild” restrictions, the ALJ must analyze those restrictions in determining the claimant's RFC. See Winter v. Comm'r of Soc. Sec., No. 18-CV-632 (FPG), 2020 WL 2465080, at *3 (W.D.N.Y. May 12, 2020).
Here, the ALJ noted that the claimant “described daily headaches that were pronounced with neck pain occurring throughout the bilateral temporal region, ” and stated that the “headaches appear to be related to his neck pain, as opposed to a separate diagnosis.” (R. 16). In doing so, he cited to several pages of Dr. Ioffe's treatment notes, without explaining his reasoning. He then concluded that the headaches were non-severe.
“Severe” impairments significantly limit an individual's physical or mental ability to do basic work activities, and last or may be expected to last for a continuous period of at least twelve months. See 20 C.F.R. §§ 404.1509, 404.1520(c); see also Eaddy v. Colvin, No. 14-CV-766 (JTC), 2015 WL 8678361, at *3 (W.D.N.Y. Dec. 11, 2015). “The claimant bears the burden of presenting evidence establishing severity.” Taylor v. Astrue, 32 F.Supp.3d 253, 268 (N.D.N.Y. 2012). In the Second Circuit, a severity inquiry serves only to “screen out de minimis claims.” Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). Consequently, “[a] finding of ‘not severe' should be made if the medical evidence establishes only a ‘slight abnormality' . . . [with] . . . ‘no more than a minimal effect on an individual's ability to work.'” Rosario v. Apfel, No. 97-CV-5759, 1999 WL 294727, at *5 (E.D.N.Y. Mar. 19, 1999) (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n.12 (1987)). An ALJ's decision is sufficient where it is clear from the ALJ's written determination that the ALJ considered conflicting evidence, but simply did not draw the conclusions that Plaintiff thinks he should have. See Pulos v. Comm'r of Soc. Sec., 346 F.Supp.3d 352, 360-62 (W.D.N.Y. 2018). The record here, however, is not clear on whether the ALJ considered the conflicting evidence; thus, this should be addressed on remand.
Furthermore, the ALJ did not include in the RFC any limitation regarding headaches or migraines and did not explain this decision. He mentioned that Dr. Ravi opined that Plaintiff would need “scheduled interruptions due to headaches, ” and found Dr. Ravi's September 2017 opinion “somewhat persuasive, ” but did not provide his reasoning for discounting this aspect of Dr. Ravi's opinion. (R. 21). While the ALJ did mention that Plaintiff's headaches improved significantly with the Botox injections, he did not address evidence suggesting that although improved, the headaches may nevertheless impact Plaintiff's ability to work. (Id.; R. 51, 87).
There is evidence in the record that Plaintiff suffered from daily headaches, which improved significantly after Botox injections. (R. 588). However, even with this treatment, Plaintiff testified that he experienced weekly headaches, with blurry vision and sensitivity to light. (R. 588-89, 593). Plaintiff testified at his April 2019 hearing that even with Botox injections, his headaches occurred three to four times per week, with the most intense part of the migraine lasting three to four hours. (R. 51). Plaintiff explained that to alleviate the headaches, he lies down with a sleeping mask, which means he may need to lie down for an extended period of time several times a week. (Id.). At the July 2019 hearing, Plaintiff again testified about the severity of his headaches. (R. 87). Dr. Ravi noted in his September 27, 2017 consultative examination that Plaintiff complained of five headaches weekly, but his condition was stable, and he was currently asymptomatic. (R. 514).
The ALJ's failure to address Plaintiff's testimony or Dr. Ravi's opinion regarding Plaintiff's headaches makes it difficult for the Court to determine whether the ALJ evaluated this evidence in formulating the RFC. This failure is critical since there is evidence in Dr. Ravi's opinion and in Plaintiff's testimony that would suggest that Plaintiff's headaches may interfere with his ability to work. See Graham v. Berryhill, No. 16-CV-6787(FPG), 2017 WL 5019274, at *4 (W.D.N.Y. Nov. 3, 2017) (remanding where ALJ's “RFC analysis d[id] not mention [Plaintiff]'s migraines and the RFC determination lack[ed] any related limitations despite evidence that her migraines could interfere with work activities on a regular and continuing basis”). Accordingly, I respectfully recommend remanding this matter to the ALJ for proper consideration of the impact of Plaintiff's headaches on the RFC.
3. Consideration of Plaintiff's Need for a Cane
Plaintiff argues that the ALJ failed to consider the fact that Plaintiff required a cane to ambulate. (Pl. Br. at 12). The Commissioner contends that the ALJ was not required to include this limitation in the RFC because there was contrary evidence in the record, including in the Bellevue records and Dr. Ravi's opinion. (Comm. Br. at 22). Plaintiff argues in Reply that the ALJ found that Dr. Ravi opined that the cane was medically necessary. (Pl. Reply Br. at 3, R. 21).
Although the ALJ stated in his decision that “Dr. Ravi opined [that the cane] was medically necessary, ” a review of the record indicates that Dr. Ravi was not opining himself as to Plaintiff's need for a cane, but was simply summarizing the medical records. Dr. Ravi states in his September 27, 2017 consultative examination: “Cane to stand. Cane for pain, weightbearing, and balance. Always prescribed by a doctor as medically necessary.” (R. 515). Thus, while Dr. Ravi notes that a doctor prescribed the cane as medically necessary, he does not himself opine that the cane was medically necessary. Further, the ALJ adequately explained his reasoning for not including a cane limitation in Plaintiff's RFC, and relied on records at Bellevue that indicated there was no gait abnormality. (R. 21-22). In fact, in numerous treatment records, attending physicians at Bellevue explicitly observed that Plaintiff had a normal or stable gait. (R. 418, 621, 631, 650, 655-56, 663, 741, 787-88, 835-36, 851, 861-62, 874, 886, 892-93, 915, 937, 941). The Commissioner also correctly points out that during a January 2014 visit at Bellevue, Plaintiff denied difficulty with ambulation. (Comm'r Br. at 22; R. 668). Because there is contradictory evidence in the record, “[i]t is for the SSA, and not this court, to weigh the conflicting evidence.” Schaal, 134 F.3d at 504. Accordingly, I respectfully recommend finding that there was substantial evidence to support the ALJ's decision to omit Plaintiff's requirement for a cane in the RFC.
III. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend granting Plaintiff's motion for judgment on the pleadings, denying the Commissioner's cross-motion, and remanding this case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Report and Recommendation.
IV. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report and Recommendation to serve and file written objections. See Fed. R. Civ. P. 6(a) and (d) (rules for computing time). A party may respond to another party's objections within fourteen (14) days after being served with a copy. See Fed. R. Civ. P. 72(b)(2). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Kenneth M. Karas at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at said Courthouse.
Requests for extensions of time to file objections must be made to the Honorable Kenneth M. Karas and not to the undersigned. Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b), 6(d), 72(b); Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008).