Opinion
7:22-cv-10145-KMK-VR
07-31-2024
Pamela Foster, Plaintiff, v. Martin O'Malley, Commissioner of Social Security Administration,[1] Defendant, Social Security Administration, Interested Party.
HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
REPORT & RECOMMENDATION
VICTORIA REZNIK UNITED STATES MAGISTRATE JUDGE
Plaintiff Pamela Foster brings this action under 42 U.S.C. § 405(g), seeking judicial review of a final determination of the Commissioner of Social Security (the Commissioner), which denied her application for disability benefits under the Social Security Act and Supplemental Security Income, and found that she was not disabled. This action is before the undersigned under an Order of Reference entered on December 2, 2022. (ECF No. 6 (Or. of Reference)). The parties now cross-move for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. (See ECF Nos. 15 (Foster's Mot.), 16 (Foster's Mem.), 18 (Commissioner's Cross-Mot.), 19 (Commissioner's Mem.), 20 (Foster's Reply)). For the reasons below, I respectfully recommend that Foster's motion be DENIED, and that the Commissioner's motion be GRANTED.
This action was reassigned to the undersigned on June 6, 2023. (ECF 06/06/2023 Notice of Reassignment).
I. Background
The facts below are taken from the administrative record of the Social Security Administration, filed by the Commissioner on July 17, 2023. (ECF Nos. 14, 14-1, 14-2 (SSA Record)).
The undersigned conducted a plenary review of the entire administrative record, familiarity with which is presumed. The undersigned assumes knowledge of the facts surrounding Foster's medical history and does not recite them in detail, except as relevant to the analysis set forth in this Report and Recommendation.
A. Application History
On August 18, 2020, Foster applied for disability benefits under the Social Security Act and Supplemental Security Income, alleging that she had been disabled since June 20, 2018. (ECF No. 14 at 253-62, 266-67) Foster's claims were initially administratively denied on January 14, 2021, and then again after reconsideration on June 1, 2021. (Id. at 148-59, 164-89). On June 8, 2021, Foster requested a hearing before an Administrative Law Judge (ALJ). (Id. at 190-95). On November 1, 2021, ALJ Kieran McCormack held a telephonic hearing. (Id. at 33-73). At that hearing, Foster appeared with a non-attorney representative and testified. (Id. at 36, 44-69). On November 16, 2021, the ALJ issued a written decision, in which he concluded that Foster was not disabled within the meaning of the Social Security Act. (Id. at 1424). The ALJ reasoned that Foster maintained a residual functional capacity (RFC) to perform sedentary work, except that she can bend, stoop, kneel, and squat on a frequent basis, and she can reach overhead with both arms on a frequent basis. (Id. at 20-23). The ALJ relied on a vocational expert's testimony that an individual with Foster's limitations could perform her past relevant work as a receptionist. (Id. at 23-24, 69-70). Foster sought review from the Appeals Council (id. at 250-52), who denied her request on October 4, 2022. (Id. at 5-9). This action followed. (ECF No. 1 (Compl.)).
All page numbers to documents filed on ECF refer to the pagination generated by ECF on the top right corner of a given page, not the sequential numbering of the SSA Record provided on the bottom right corner of the page.
A Social Security claimant may appear with a non-attorney representative before a Social Security proceeding. See 42 U.S.C. § 406(a)(1) (“The Commissioner of Social Security may prescribe rules and regulations governing the recognition of agents or other persons, other than attorneys as hereinafter provided, representing claimants before the Commissioner of Social Security ....”); 20 C.F.R. § 404.1705(b) (providing that a Social Security claimant “may appoint any person who is not an attorney to be [their] representative in dealings with us if the person” satisfies certain requirements).
B. Record Before the ALJ
Both parties have provided summaries of the testimonial, medical, and vocational evidence contained in the administrative record. (ECF Nos. 16 at 8-21; 19 at 7-9). Based on an independent and thorough examination of the record, the undersigned finds that the parties' summaries of the evidence are largely comprehensive and accurate. Thus, the undersigned adopts these summaries and discusses the record in more detail only as necessary to recommend disposition of the issues raised. See, e.g., Jimenez ex rel. D.S.J. v. Comm'r of Soc. Sec., No. 21-cv-2030, 2022 WL 4085953, at *1 (S.D.N.Y. Aug. 18, 2022), report and recommendation adopted, 2022 WL 4087958, at *1 (S.D.N.Y. Sept. 6, 2022).
II. Legal Standards
A. Standard of Review
This Court “engage[s] in limited review” of the Commissioner's decision. Schillo v. Saul, 31 F.4th 64, 74 (2d Cir. 2022). The Court “conduct[s] a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision and if the correct legal standards have been applied.” Id.; see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive ....”). “The substantial evidence standard is a very deferential standard of review,” such that it is not the function of the Court “to determine de novo whether a plaintiff is disabled.” Schillo, 31 F.4th at 74 (internal quotation marks omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted). “[T]he reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Id. “If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld.” Id. “[O]nce an ALJ finds facts, [this Court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Id. (internal quotation marks omitted).
But “where an error of law has been made that might have affected the disposition of the case, this [C]ourt 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) (alteration and internal quotation marks omitted). Thus, “[f]ailure to apply the correct legal standards is grounds for reversal.” Id. “When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or when the ALJ's rationale is unclear in relation to the evidence in the record, the Court may remand to the Commissioner “for further development of the evidence” or for an explanation of the ALJ's reasoning. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996); accord Fowlkes v. Adamec, 432 F.3d 90, 98 (2d Cir. 2005).
B. Statutory Disability
Under the Social Security Act, a claimant is disabled when the claimant lacks the ability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); Schillo, 31 F.4th at 69-70. The claimant is eligible for disability benefits
only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B).
The Social Security Regulations, 20 C.F.R. § 404.1520(a)(4)(i)-(v), set forth a five-step sequential analysis for evaluating whether a person is disabled under the Social Security Act. See Schillo, 31 F.4th at 70. “If at any step a finding of disability or nondisability can be made, the Commissioner will not review the claim further.” Id. (alteration and internal quotation marks omitted). Under the five-step process, the Commissioner determines the following:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe physical or mental impairment, or combination of severe impairments;
(3) whether the impairment (or combination) meets or equals the severity of one of the impairments specified in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listing of Impairments”);
(4) whether, based on an assessment of the claimant's residual functional capacity, the claimant can perform any of her past relevant work; and
(5) whether the claimant can make an adjustment to other work given the claimant's residual functional capacity, age, education, and work experience.Schillo, 31 F.4th at 70 (citing 20 C.F.R. § 404.1520(a)(4)(i)-(v)). “At step three, the [Commissioner] determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies.” Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003). But “[i]f the claimant's impairment is not on the list, the inquiry proceeds to step four.” Id. “The claimant bears the burden of proof in the first four steps of the sequential inquiry.” Schillo, 31 F.4th at 70. “In step five, the burden shifts, to a limited extent, to the Commissioner to show that other work exists in significant numbers in the national economy that the claimant can do.” Id. “Because the shift in step five is limited, the Commissioner need not provide additional evidence of the claimant's residual functional capacity.” Id. (internal quotation marks omitted).
A severe impairment is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c).
Listed impairments are presumed severe enough to render an individual disabled, and the criteria for each listing are found in Appendix 1 to Part 404, Subpart P of the SSA regulations. 20 C.F.R §§ 404.1520(a)(4)(iii), (d), 416.920(a)(4)(iii), (d). If the claimant's impairments do not satisfy the criteria of a listed impairment at step three, the Commissioner moves on to step four and must determine the claimant's residual functional capacity (RFC). 20 C.F.R. §§ 404.1520(e), 416.920(e).
A claimant's RFC represents “the most [the claimant] can still do despite [their] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
To support a finding that the claimant is disabled, there must be no other work existing in significant numbers in the national economy that the claimant, considering his or her RFC and vocational factors, can perform. 20 C.F.R. § 404.1560(c).
III. The ALJ's Decision
To assess Foster's disability claim, the ALJ applied the five-step sequential analysis. (ECF No. 14 at 14-24); 20 C.F.R. § 404.1520(a)(4)(i)-(v). At step one, the ALJ concluded that Foster had not engaged in substantial gainful activity since June 20, 2018, the alleged onset date. (ECF No. 14 at 17). At step two, the ALJ concluded that Foster had the following severe impairments: degenerative changes and stenosis of the cervical spine, hypertension, ulcerative colitis, and psoriatic arthritis. (Id.). The ALJ also found that Foster had the following non-severe impairments: abnormal echocardiogram, history of skin cancer, anemia, gastroesophageal reflux disease (GERD), maxillary sinusitis, acute renal failure, migraine headaches, depressive disorder, anxiety, and a specific learning disorder. (Id.).
At step three, the ALJ determined that Foster's impairments, individually or combined, did not meet, or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 19-20). The ALJ found that Foster's physical impairments did not meet or medically equal Listings 1.15 (disorders of the skeletal spine resulting in compromise of a nerve root(s)), 1.18 (abnormality of a major joint(s) in any extremity), 4.00H (cardiovascular impairments), and 5.06 (inflammatory bowel disease). (Id.).
At step four, the ALJ assessed Foster's RFC as follows:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except that she can bend, stoop, kneel, and squat on a frequent basis. She also can reach overhead with both arms on a frequent basis.(Id. at 20). In reaching this conclusion, the ALJ “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence” in accordance with 20 C.F.R. §§ 404.1529 and 416.929 and Social Security Ruling 16-3p. (Id.). The ALJ also “considered the medical opinion(s) and prior administrative medical finding(s)” in accordance with 20 C.F.R. §§ 404.1520c and 416.920c. (Id.). In reaching this determination, the ALJ used a two-step process. First, the ALJ found that the evidence revealed medical impairments that could reasonably be expected to cause the symptoms Foster had alleged. (Id. at 21). Second, the ALJ determined that “the intensity, persistence and limiting effects of [Foster's] symptoms [were] not shown to be of a disabling nature by the medical evidence and other evidence in the record.” (Id.).
The ALJ then proceeded to the second part of step four and concluded that Foster “is capable of performing past relevant work as a receptionist” and that such work would “not require the performance of work-related activities precluded by [her] residual functional capacity.” (Id. at 23). The ALJ credited the vocational expert's testimony that an individual with Foster's RFC could perform her past work as a receptionist, both as it is generally performed in the national economy and as she performed it. (Id. at 23-24). Thus, Foster was “not disabled.” (Id. at 24).
IV. Discussion
Foster makes several arguments that challenge (1) the ALJ's determination that Foster did not have an impairment or combination of impairments that meet or medically equal the criteria of a listed impairment (at step three); (2) the ALJ's RFC determination (in step four); and (3) the ALJ's determination that Foster could return to her past relevant work as a receptionist (second part of step four). (ECF Nos. 16 at 22-32; 20 at 2-8). As explained below, the Court finds that the ALJ's determinations were supported by substantial evidence and that no legal error occurred.
A. The ALJ Appropriately Considered Foster's Non-Severe Impairments in Combination and Combined with Her Severe Impairments at Step Three.
Foster argues that the ALJ “did not articulate consideration” of all her non-severe impairments “in combination, let alone in combination with the severe impairments.” (ECF No. 16 at 22-23). This argument reduces to the contention that the ALJ did not properly carry out step three, where the ALJ must determine whether the claimant's impairment, or combination of impairments, meet or medically equal the criterial of a listed impairment specified in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 416.920(a)(4)(iii).
But despite bearing the burden at step three, see Schillo, 31 F.4th at 70, Foster neither identifies any listing from Appendix 1, the criteria of which she believes are met, nor points to any medical findings in the record that equal in severity to the criteria for the one most similar listed impairment, see Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (“For a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is ‘equivalent' to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment.”); cf. Cianfano v. Kijakazi, No. 22-cv-4801, 2023 WL 6455758, at *12 (S.D.N.Y. Aug. 24, 2023) (“But even though Cianfano bears the burden at step three, he neither identifies any listing from Appendix 1, the criteria of which he believes are met, nor points to any medical findings in the record that equal in severity to all the criteria for the one most similar listed impairment.”) (citation and internal quotation marks omitted), report and recommendation adopted, 2023 WL 5950687 (S.D.N.Y. Sept. 12, 2023).
The ALJ did what was required at step three. First, at step two, the ALJ considered all of Foster's non-severe impairments: abnormal echocardiogram, history of skin cancer, anemia, GERD, maxillary sinusitis, acute renal failure, migraine headaches, depressive disorder, anxiety, and a specific learning disorder. (See ECF No. 14 at 17-18). The ALJ found that Foster's non-severe physical impairments “did not cause more than minimal limiting symptoms, were acute, or improved with treatment,” and did “not have a more than minimal effect on [Foster's] ability to perform basic work-related activities.” (Id. at 17-18). And her “mental impairments cause no more than ‘mild' limitation” in the four areas of mental functioning. (Id. at 18-19). Then, at step three, having already reviewed Foster's non-severe impairments, the ALJ found that she did “not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments.” (Id. at 19-20). Thus, the ALJ considered Foster's non-severe impairments in combination, and combined with her severe impairments, to determine whether the combination met or equaled a listing.
Further, the ALJ identified potentially relevant listed impairments: Listings 1.15 (disorders of the skeletal spine resulting in compromise of a nerve root(s)), 1.18 (abnormality of a major joint(s) in any extremity), 4.00H (cardiovascular impairments), and 5.06 (inflammatory bowel disease). (Id.). The ALJ concluded that Foster did not meet Listings 1.15 and 1.18 because no evidence showed that she cannot perform fine and gross movements with at least one upper extremity due to a combination of extremity-related limitations and the use of a medically necessary device. (Id. at 19). Likewise, the ALJ concluded that Foster did not meet Listing 4.00 because “Listing 4.00H requires that any limitations imposed by hypertension be considered when the [RFC] is assessed.” (Id. at 20). And the ALJ concluded that Foster did not meet Listing 5.06: the evidence did “not demonstrate obstruction of stenotic areas (not adhesions) in the small intestine or colon with proximal dilatation, requiring hospitalization for intestinal decompression or for surgery, and occurring on at least two occasions at least 60 days apart within a consecutive 6-month period” and Foster had “not demonstrated the requisite hemoglobin levels, serum albumin levels, palpable mass with abdominal pain or cramping, perineal disease, involuntary weight loss or need for supplemental daily enteral nutrition.” (Id.). “While the ALJ's analysis supporting these conclusions is brief, they may be upheld so long as we are able to look to other portions of the ALJ's decision and to clearly credible evidence in finding that his determination was supported by substantial evidence.” Cianfano, 2023 WL 6455758, at *12 (internal quotation marks omitted); Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982) (per curiam) (“[I]n spite of the ALJ's failure to explain his rejection of the claimed listed impairments, we were able to look to other portions of the ALJ's decision and to clearly credible evidence in finding that his determination was supported by substantial evidence.”). As explained below, substantial evidence elsewhere in the ALJ's decision supports these conclusions.
B. The ALJ's RFC Determination Was Supported by Substantial Evidence.
Foster makes a series of sub-arguments that the ALJ erred in determining her RFC without substantial evidence (in step four). (ECF No. 16 at 22-27). First, Foster argues that the ALJ only considered evidence supportive of his determination (otherwise known as “cherrypicking”). (Id.). Second, Foster argues that the ALJ failed to consider the combined effect of all her non-severe impairments in his RFC assessment. (Id. at 22-23, 25-27). Third, Foster argues that the ALJ failed to adequately consider her ulcerative colitis, so that the RFC determination did not account for her need for frequent bathroom breaks. (Id. at 23, 25). Fourth, Foster argues that the ALJ improperly “engaged in speculation” and made his own “medical judgments.” (Id. at 25). Fifth, Foster argues that the ALJ erred by failing to obtain a medical source statement that would have considered all of her “impairments together and produced a residual functional capacity.” (Id. at 27). And sixth, Foster argues that the ALJ did not properly assess the opinion of consultative psychiatric evaluator, Dr. Alison Murphy. (Id. at 23-24). The Court first addresses whether substantial evidence supports the ALJ's RFC determination as a whole, and then addresses each of Foster's arguments in turn.
1. Substantial Evidence Supports the ALJ's RFC Determination
The ALJ found that Foster had the RFC to perform sedentary work, “except that she can bend, stoop, kneel, and squat on a frequent basis” and she can “reach overhead with both arms on a frequent basis.” (ECF No. 14 at 20). In support of this finding, the ALJ extensively cited Foster's treating source records and the findings of consultative physicians. (Id. at 18-23). As explained below, the ALJ's conclusions are supported by substantial evidence. More specifically, the record reveals that Foster's medically determinable impairments could reasonably be expected to cause the symptoms she alleged-an issue undisputed by the parties. (Id. at 21). But the record also supports the ALJ's finding that the intensity, persistence, and limiting effects of Foster's alleged symptoms are not entirely consistent with the record evidence. (Id.).
“‘[S]edentary work' is generally defined as work in a sitting position for six hours of an eight-hour workday.” McIntyre v. Colvin, 758 F.3d 146, 152 (2d Cir. 2014).
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.20 C.F.R. § 404.1567(a).
As noted above, the ALJ concluded that ulcerative colitis was among Foster's severe impairments. (ECF No. 14 at 17). But substantial evidence supports the ALJ's finding that Foster reported significant improvement in her ulcerative colitis over time, and that she was doing relatively well. (Id. at 21-22). Foster established care for her long-standing ulcerative colitis in November 2019. (ECF No. 14-1 at 148). At that point, her most recent colonoscopy had been performed in May 2019, which had returned “remarkable for mild active colitis.” (Id.). During her November 2019 visit, Foster reported that “from inflammatory bowel standpoint she is relatively asymptomatic,” as she was not experiencing abdominal pain, nausea, vomiting, diarrhea, or blood in her stool. (Id.). She also reported “one formed bowel daily without urgency.” (Id.). In December 2019, Foster reported that she was “not having significant colitis symptoms such as diarrhea or blood in the stool.” (Id. at 159). Though she reported chills, fatigue, malaise, and weakness, she denied anorexia, change in appetite, fainting, fever, sweats, weight loss, rectal bleeding, constipation, diarrhea, dysphagia, early satiety, excessive flatulence, gas/bloating, heartburn, jaundice, melena, nausea, odynophagia, and vomiting. (Id. at 160). In February 2020, Foster reported that she “feels that her ulcerative colitis is in clinical remission.” (Id. at 170). While she complained of nausea, lack of appetite, and weight loss, she denied loose stools, blood in her stool, or lower abdomen pain. (Id. at 170). And upon examination, she appeared “healthy and well developed.” (Id. at 171). Though Dr. Meca was “not sure what [was] causing the elevated inflammatory markers,” Dr. Meca recommended continued treatment. (Id. at 172). In March 2020, Foster felt “about the same,” but Dr. Meca noted that Foster “does not have symptoms of colitis” and that she would “need a repeat colonoscopy in the near future.” (Id. at 181). During an April 2020 hospital admission (for acute renal failure), Foster reported “doing well in terms of her ulcerative colitis and having no problems with diarrhea.” (Id. at 28). When Foster followed up with Dr. Meca in July 2020, Foster reported “feeling much better,” having “regained 13-15 pounds,” and denied nausea or vomiting. (Id. at 12). She did complain “of a constant discomfort in the epigastrium and right upper quadrant, dull discomfort that is constant and associated with bloating.” (Id.). But Dr. Meca again noted that Foster “does not have symptoms of colitis.” (Id. at 15). In September 2020, Foster reported “feeling well” and that her “epigastric abdominal pain resolved.” (Id. at 188). During that visit, she denied nausea, dysphagia, and loose or bloody stools, and she reported “[n]o changes in bowel habits.” (Id.). And Dr. Meca again noted that Foster “does not have symptoms of colitis.” (Id. at 191). While Dr. Meca expressed the need for a repeat colonoscopy, Foster wanted to postpone it. (Id.). The record does not contain any further records from Foster's visits with Dr. Meca after September 2020. (See ECF No. 14 at 42). But during March and June 2021 visits with Dr. Lorraine Nardi (for hypertension), Foster denied heartburn, nausea, vomiting, difficulty swallowing, diarrhea, constipation, and abdominal pain, and was reminded that “she needs to have [her] yearly colonoscopy.” (ECF No. 14-2 at 141, 145).
During the ALJ hearing, Foster's representative explained that the last report from Dr. Meca was from September 2020, but Foster had “said that she did have appointments with [her] since then.” (ECF No. 14 at 42).
Substantial evidence also supports the ALJ's finding that despite Foster's severe medical impairments-pain in her neck, shoulders, back, and knees, along with abdominal pain, fatigue, malaise, nausea, and some impaired ambulation, due to degenerative changes and stenosis in the cervical spine, hypertension, ulcerative colitis, and psoriatic arthritis-she could perform sedentary work, except that she can more than frequently bend, stoop, kneel, and squat, and she could frequently reach overhead bilaterally. (ECF No. 14 at 23). In support, the ALJ considered Dr. Kautilya Puri's May 2021 consultative examination. (ECF No. 14-2 at 97-100). As the ALJ explained, Dr. Puri's examination revealed as follows. Foster reported cervical pain due to herniated discs that radiated into her hands. (Id. at 97). She also reported a history of low back pain, which she said was “fine at present.” (Id.). She further reported a history of arthritis in her joints, ulcerative colitis, diarrhea, cramping, and weight loss. (Id.). Upon examination, she appeared to be in no acute distress. (Id. at 98). Her gait was normal. (Id.). She could stand on her heels and toes, though she said that she cannot walk on them. (Id.). Her squat was moderately decreased, though she sat with no difficulty. (Id.). She used no assistance devices, was able to rise from a chair without difficulty, and needed no help changing for exam or getting on and off the exam table. (Id.). She had full flexion, extension, lateral flexion, and rotary movement in the cervical spine, with full lumbar spine range of motion. (Id. at 99). Straight leg raises were negative bilaterally. (Id.). She had full range of motion in the shoulders, elbows, forearms, wrists, hips, knees, and ankles. (Id.). Her joints were stable and nontender, except that she showed tenderness to palpation in the knees, shoulders, back, and neck. (Id.). She had full strength in all extremities. (Id.). She had no muscle atrophy, and she had full grip strength. (Id. at 100). Based on her examination, Dr. Puri opined that Foster had no limitations in fine motor or gross motor activities, with mild limitations to her gait and her ability to squat, bend, stoop, kneel, lift, and reach overhead. (Id.). Because Dr. Puri's opinion was supported by her own objective findings and the record in general, the ALJ found Dr. Puri's opinion “generally persuasive.” (ECF No. 14 at 22-23).
The Court separately addresses Foster's nonsevere physical and mental impairments below in Subsection IV.B.3.
The Court separately elaborates on substantial evidence of Foster's ulcerative colitis below in Subsection IV.B.4.
The ALJ also observed that Foster's providers generally noted that she had normal strength, reflexes, sensation, and gait. (See, e.g., ECF Nos. 14-1 at 7, 161; 14-2 at 77). The ALJ added that Foster reported at her psychological consultative examination that she could dress, bathe, groom herself, cook, drive, and manage money. (ECF No. 14-2 at 93).
The ALJ considered opinion evidence from state agency non-reviewing consultant, Dr. J. Rosenthal, who opined that Foster was limited to light work. (ECF No. 14 at 134-36). As the ALJ explained, Dr. Rosenthal “supported his/her opinion with an explanation of the evidence used to formulate it.” (See id. at 22, 134-36). Thus, the ALJ found Dr. Rosenthal's opinion to be “somewhat consistent with the evidence of record” because he/she noted that Foster had a normal gait, full upper and lower extremity strength, and intact range of motion. (Id. at 22, 13436). But the ALJ found that Foster had “reaching limitations” that had not been reported by Dr. Rosenthal because Dr. Puri had noted that Foster had displayed tenderness to palpation and with movement in the shoulders and neck. (Id. at 22). So, Dr. Rosenthal's opinion was not fully persuasive. (Id.). Instead, the ALJ found that Foster had a more limited RFC-that she was limited to sedentary work. (Id. at 23).
Thus, there is substantial evidence, considering the record as a whole, to support the ALJ's determination of Foster's RFC.
2. The ALJ Did Not Engage in “Cherry-Picking”
Foster argues that, as part of step four, the ALJ erred in determining her RFC by only considering the evidence supportive of the ALJ's determination. (ECF No. 16 at 22-27). When reviewing the medical record, the ALJ may not pick and choose from the record, using only portions that favor the ALJ's determination. Fiorello v. Heckler, 725 F.2d 174, 175-76 (2d Cir. 1983) (reversing and remanding where ALJ credited all medical evidence in favor of nondisability determination but rejected, without reason, all medical evidence in claimant's favor); accord Lopez v. Dep't of Health & Hum. Servs., 728 F.2d 148, 150-51 (2d Cir. 1984) (“We have remanded cases when it appears that the ALJ has failed to consider relevant and probative evidence which is available to him.”). Rather, the ALJ's decision must be based on consideration of “all evidence available in [the claimant's] case record.” 42 U.S.C. § 423(d)(5)(B). That said, the ALJ need not mention every item of testimony presented, Rucker v. Kijakazi, 48 F.4th 86, 100 (2d Cir. 2022), or “reconcile explicitly every conflicting shred of medical testimony,” Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010).
Foster's “cherry-picking” contentions are meritless. (ECF No. 16 at 22-27). She appears to argue that because the ALJ failed to “articulate consideration” of all her non-severe impairments, the ALJ engaged in “cherry-picking.” (Id. at 22-23). But review of the ALJ's decision reveals that the ALJ did consider each of her non-severe impairments. (See ECF No. 14 at 17-19). The ALJ acknowledged that Foster suffered from abnormal echocardiogram, history of skin cancer, anemia, GERD, maxillary sinusitis, acute renal failure, migraine headaches, depressive disorder, anxiety, and a specific learning disorder. (Id. at 14). And after reviewing the medical evidence in the record, the ALJ found that each of these conditions did not “have a more than minimal effect on [Foster's] ability to perform basic work-related activities.” (Id. at 17-18). While the ALJ might not have explicitly mentioned every item of medical evidence in the record, the ALJ was not required to do so. Rucker, 48 F.4th at 100. And in any event, Foster does not explain what evidence the ALJ purportedly failed to consider when reviewing her non-severe impairments. (See ECF No. 16 at 22-23).
Conversely, about Foster's argument that the ALJ “cherry-picked” the evidence of ulcerative colitis, Foster does identify an evidentiary item that the ALJ purportedly failed to consider. (Id. at 23). She argues that with respect to the July 20, 2020, medical examination by Dr. Simona Meca, the ALJ failed to consider that she had “complained of constant discomfort in the epigastrium and right upper quadrant, dull discomfort that is constant and associated with bloating,” and that she had “reported morning nausea, with some bouts of bilious vomiting and no appetite, fatigue and malaise.” (Id.). Yet this “cherry-picking” argument is also meritless. First, the ALJ did acknowledge Foster's report of epigastrium discomfort and bloating. (See ECF No. 14 at 21 (“However, she noted constant abdominal discomfort with bloating.”)). And, as the ALJ observed, in September 2020, Foster reported that her “epigastric abdominal pain resolved once she started esomeprazole.” (ECF No. 14-1 at 188; see ECF No. 14 at 21 (“[I]n September of 2020, the claimant reported feeling well, and she said that her epigastric abdominal pain resolved with medication.”)). Second, Foster did not report morning nausea, bouts of bilious vomiting, and lack of appetite in July 2020. (See ECF No. 14-1 at 12). Rather, she reported that in March 2020, and then in July 2020, she reported “feeling much better,” having “regained 13-15 pounds,” and had “no more nausea or vomiting.” (Id.). Thus, the ALJ did not “cherry-pick” within the July 2020 examination notes.
On reply, Foster argues that the ALJ engaged in “cherry picking” as to the September 2020 medical note. (ECF No. 20 at 3). She argues that in September 2020, she continued to complain of constant discomfort associated with bloating. (Id. at 3). But Foster appears to be citing the second paragraph of the September 2020 medical note, which is a summary of her July 2020 visit. (See ECF No. 14-1 at 188). And as explained above, the first paragraph of the September 2020 medical note reveals that Foster reported that her bloating discomfort had resolved by September 2020. (Id.). Similarly, Foster argues that in September 2020, she also complained that she had nausea in the morning and no appetite. (ECF No. 20 at 3). But, again, Foster appears to be citing the third paragraph of the September 2020 medical note, which is a summary of her March 2020 visit. (See ECF No. 14-1 at 188). And as explained above, the second paragraph of the September 2020 medical note reveals that Foster had reported in July 2020 that she had “no more nausea or vomiting.” (Id.). Finally, Foster argues that on November 2, 2020, she also reported daily vomiting. (ECF No. 20 at 3). True, Foster did report “vomiting about once a day” (ECF No. 14-2 at 71), but later that month, she reported feeling better and denied nausea and vomiting (id. at 75).
Moreover, a general review of Foster's gastroenterological records, summarized in Subsection IV.B.1 above, reveals that the ALJ did not engage in “cherry-picking.” Instead, the record reveals, as the ALJ found, that Foster reported significant improvement in her ulcerative colitis over time, and that she was doing relatively well. (ECF No. 14 at 21-22). While the ALJ might not have explicitly mentioned every gastroenterology evidentiary item in the record, the ALJ was not required to do so. Rucker, 48 F.4th at 100. Thus, Foster's “cherry-picking” contentions are meritless.
3. The ALJ Adequately Addressed Foster's Non-Severe Mental Impairments in the RFC Determination and Any Failure to Address Foster's Non-Severe Physical Impairments Was Harmless Error
Foster argues that the ALJ failed to consider the combined effect of all her non-severe impairments in her RFC assessment. (ECF No. 16 at 22-23, 25-27). The ALJ is required to “consider all” of a claimant's medically determinable impairments in an RFC determination, “including those that are not severe.” Richardson v. Comm'r of Soc. Sec., No. 21-cv-11146, 2024 WL 1363451, at *6 (S.D.N.Y. Mar. 29, 2024); see 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,' as explained in §§ 404.1520(c), 404.1521, and 404.1523, when we assess your residual functional capacity.”); Parker-Grose v. Astrue, 462 Fed.Appx. 16, 18 (2d Cir. 2012) (Summary Order) (“A RFC determination must account for limitations imposed by both severe and nonsevere impairments.”).
The Court recognizes that under the Second Circuit's Local Rules, a “summary order do[es] not have precedential effect.” 2d Cir. Loc. R. 32.1.1(a). But “this Court finds even the less-considered words of distinguished panels of judges highly persuasive.” CFTC v. Int'l Fin. Servs., 323 F.Supp.2d 482, 510 n.19 (S.D.N.Y. 2004). Surely, such orders “are at least as valuable to a district [court] considering thorny legal issues as the musings of the authors of student law-review notes, which are freely citable.” Id.
Here, the ALJ acknowledged all of Foster's non-severe impairments at step two (see ECF No. 14 at 17-19), but only addressed some of them in his RFC determination (see id. at 20-23). The ALJ's review of a claimant's non-severe impairments at step two does not obviate the need to review them later when determining the claimant's RFC. See Parker-Grose, 462 Fed.Appx. at 17 (remanding because “the Commissioner failed to account for any functional limitations associated with [claimant's] depression when determining her residual functional capacity”). But “where an ALJ fails to mention non-severe impairments in formulating the RFC, such an error may be considered harmless absent evidence that these impairments contributed to any functional limitations.” Smith v. Comm'r of Soc. Sec., No. 20-cv-8547, 2022 WL 421136, at *15 (S.D.N.Y. Feb. 11, 2022) (internal quotation marks omitted).
See, e.g., Douglas v. Saul, No. 20-cv-322, 2021 WL 2852962, at *9-10 (S.D.N.Y. July 8, 2021) (explaining that despite the ALJ's duty to consider claimant's non-severe impairments of asthma and decreased visual acuity in her RFC analysis, the ALJ's error as to claimant's vision problems was harmless because the vision problem was “clearly inconsequential to the ALJ's RFC determination;” and the ALJ's error as to claimant's asthma was not harmless because the medical evidence indicated that claimant suffered from “mild, intermittent (but ongoing) asthma with acute exacerbation, controlled by medication,” warranting remand for the ALJ to determine whether claimant's asthma was inconsequential or necessitated an environmental restriction).
To begin with, the ALJ did adequately address Foster's non-severe mental impairments- depressive disorder, anxiety, and a specific learning disorder-in his RFC determination. The ALJ explained that “for the reasons outlined earlier at Step Two,” these impairments did “not cause more than mild limitations in [Foster's] ability to perform basic mental work activities,” and thus, “no psychiatric limitation” was necessary. (ECF No. 14 at 23). Although the ALJ's analysis was brief and referred to the step two analysis, the ALJ adequately explained why there was no need to include a mental limitation in the RFC. See Coulter v. Comm'r of Soc. Sec., 673 F.Supp.3d 365, 376 (S.D.N.Y. May 10, 2023) (explaining that the “the ALJ may find that [claimant's] mental impairments are inconsequential” at step two, and “reject the need to incorporate mental limitations into the RFC-but he must explain his reasoning for doing so”) (internal quotation marks omitted).
As for Foster's non-severe physical impairments-abnormal echocardiogram, history of skin cancer, anemia, GERD, maxillary sinusitis, acute renal failure, and migraine headaches- the ALJ did not directly address them in his RFC determination. But this failure amounts to harmless error. At step two, the ALJ reviewed each of these impairments and found that they had all “resolved or improved with treatment and/or did not cause [Foster] to experience continued complications” during the period. (ECF No. 14 at 17). And “because all of the above impairments did not cause more than minimal limiting symptoms, were acute, or improved with treatment, the [ALJ found] that they do not have a more than minimal effect on [Foster's] ability to perform basic work-related activities.” (Id. at 17-18). As the ALJ explained, Foster generally appeared healthy and well-developed at her medical appointments, with normal cardiovascular, abdominal, respiratory, skin, and neurological evaluations, other than at appointments for acute issues. (See ECF No. 14-1 at 14, 106, 109, 142, 185, 190; 14-2 at 5, 32, 112). Thus, Foster's non-severe physical impairments were inconsequential to the ALJ's RFC determination, and the ALJ's failure to discuss them in his RFC determination was harmless error. See Smith, 2022 WL 421136, at *15 (noting that “where an ALJ fails to mention non-severe impairments in formulating the RFC, such an error may be considered harmless absent evidence that these impairments contributed to any functional limitations”) (internal quotation marks omitted).
Nor does Foster explain how her non-severe physical impairments were consequential to the ALJ's RFC determination. The ALJ found that Foster had the RFC to perform sedentary work (ECF No. 14 at 20), which “is the least rigorous of the five categories of work recognized by SSA regulations,” Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000), superseded by statute on other grounds, as recognized in Douglass v. Astrue, 496 Fed.Appx. 154, 156 (2d Cir. 2012) (Summary Order). And despite bearing the burden to prove a more restrictive RFC, Foster does not explain how her non-severe physical impairments, in combination, would render her unable to perform the requirements of sedentary work.
Schillo, 31 F.4th at 70; Snyder v. Comm'r of Soc. Sec., No. 22-277, 2023 WL 1943108, at *3 (2d Cir. Feb. 13, 2023) (Summary Order) (“[I]t is the claimant's burden to prove a more restrictive RFC ....”).
Thus, the ALJ adequately addressed Foster's non-severe mental impairments in the RFC determination, and his failure to address Foster's non-severe physical impairments was harmless error.
4. The ALJ Adequately Addressed Foster's Ulcerative Colitis in the RFC Determination Foster argues that the ALJ failed to adequately address her ulcerative colitis in his RFC determination, largely because he did not account for her need for frequent bathroom breaks. (ECF No. 16. at 23, 25). These arguments reduce to claims that the ALJ's RFC determination about ulcerative colitis was not supported by substantial evidence and that the ALJ improperly rejected Foster's subjective reports of limitations she suffered because of it. As explained below, these two arguments fail.
When making an RFC determination, “the ALJ is required to take the claimant's reports of pain and other limitations into account.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam); see 20 C.F.R. § 416.929. But the ALJ “is not required to accept the claimant's subjective complaints without question; he may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record.” Genier, 606 F.3d at 49.
“The regulations provide a two-step process for evaluating a claimant's assertions of pain and other limitations.” Id. First, “the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged.” Id. (citing 20 C.F.R. § 404.1529(b)). This requirement stems from the regulation that “subjective assertions of pain alone cannot ground a finding of disability.” Id. (citing C.F.R. § 404.1529(a)). Second, “the ALJ must consider ‘the extent to which the claimant's symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence' of record.” Id. (alterations omitted) (quoting 20 C.F.R. § 404.1529(a)).
At the second step, the ALJ must consider all available evidence, including objective medical evidence and information about (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medications taken to alleviate symptoms; (5) any treatment, other than medication, that the claimant has received; (6) any other measures that the claimant employs to relieve symptoms; and (7) other factors concerning the claimant's functional limitations and restrictions as a result of the symptoms. 20 C.F.R. § 404.1529(c)(3)(i)-(vii); see also Genier, 606 F.3d at 49 (“The ALJ must consider ‘statements the claimant or others make about his impairments, his restrictions, his daily activities, his efforts to work, or any other relevant statements he makes ....'”) (alterations omitted) (quoting 20 C.F.R. § 404.1512(b)(3)); Snyder v. Saul, 840 Fed.Appx. 641, 643 (2d Cir. 2021) (Summary Order); SSR 16-3p, 2017 WL 5180304, at *7-8 (S.S.A. Oct. 25, 2017). “The ALJ need not discuss all the factors, however, as long as the decision includes precise reasoning, is supported by evidence in the case record, and clearly indicates the weight the ALJ gave to the claimant's statements and the reasoning for that weight.” Simmons v. Comm'r of Soc. Sec., 103 F.Supp.3d 547, 569 (S.D.N.Y. 2015) (internal quotation marks omitted); see Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (“An ALJ does not have to state on the record every reason justifying a decision. Although required to develop the record fully and fairly, an ALJ is not required to discuss every piece of evidence submitted.”) (internal quotation marks omitted).
When the ALJ considered Foster's ulcerative colitis, the ALJ applied this two-step analysis. Under step one, the ALJ acknowledged that Foster had alleged gastrointestinal issues, including frequent bathroom visits, and found that her ulcerative colitis could reasonably be expected to cause her alleged symptoms. (ECF No. 14 at 20-22). Under step two, the ALJ reviewed Foster's gastroenterology records and found that the intensity, persistence, and limiting effects of her ulcerative colitis was not of a disabling nature and that Foster's allegations about her symptoms were not consistent with the medical evidence and other evidence in the record. (Id.). As explained above (in Subsection IV.B.1), the medical evidence reveals that Foster reported significant improvement in her ulcerative colitis over time and that she was consistently doing relatively well. The gastroenterology records discussed above demonstrate that the ALJ's findings about Foster's ulcerative colitis are substantially supported by the record. Thus, Foster's claim that the ALJ failed to adequately consider her ulcerative colitis lacks merit.
Similarly, Foster's claim that the ALJ disregarded her need for frequent bathroom breaks is unfounded. The gastroenterology records do not show that the RFC needed to account for frequent bathroom breaks, beyond those already allowed in the typical workday. For example, in November 2019, Foster reported having “one formed bowel daily without urgency.” (ECF No. 14-1 at 148). In subsequent medical visits, Foster consistently denied colitis symptoms such as diarrhea, loose stools, and bloody stools. (See id. at 28, 159-60, 170, 188; ECF No. 14-2 at 141, 145). Foster only exhibited “elevated inflammatory markers” in February and March 2020, when she complained of nausea, lack of appetite, and weight loss. (ECF No. 14-1 at 170, 172). But in April 2020, she reported doing well, and by July 2020, she reported “feeling much better,” having “regained 13-15 pounds,” and denied nausea or vomiting. (ECF No. 14-2 at 12).
Foster testified that she needed to go to the bathroom three or four times a day. (ECF No. 14 at 64). The vocational expert testified that a typical workday allows for about one hour of breaks. (Id. at 71). Thus, Foster's need for bathroom breaks is generally consistent with the vocational expert's testimony. Foster also testified that she was fired her from her last job, as a receptionist, because of frequent bathroom breaks. (Id. at 50). But that was in 2015 (id.), and Foster alleged that she became disabled in 2018 (see id. at 14-15, 254, 266).
Foster also argues that “it is simply not true that [her] gastrointestinal issues did not result in disabling limitations” because “[a] temporary improvement in the claimant's condition does not warrant a finding that the individual is no longer disabled.” (ECF No. 20 at 3 (citing Coughlin v. Sec'y of Health & Hum. Servs., 671 F.Supp. 138, 141 (E.D.N.Y. 1987)); see also ECF No. 16 at 27). True, a “temporary period of control of a claimant's condition, . . . does not indicate that [a] claimant's condition was not disabling.” Baker v. Berryhill, No. 17-cv-8433, 2019 WL 1062110, at *28 (S.D.N.Y. Feb. 19, 2019), report and recommendation adopted, 2019 WL 1059997 (S.D.N.Y. Mar. 6, 2019). But Foster's ulcerative colitis records do not reveal that she was experiencing a temporary period of control of her condition. Rather, those records show that she was generally doing relatively well, except for a problem in February and March 2020, when she exhibited “elevated inflammatory markers” and complained of nausea, lack of appetite, and weight loss (ECF No. 14-1 at 170, 172), and which resolved by April 2020 (ECF No. 14-2 at 12).
Thus, the ALJ adequately addressed Foster's ulcerative colitis in the RFC determination. And the ALJ did not err by not including frequent bathroom breaks in the RFC.
5. The ALJ Did Not Engage in “Speculation” or Make His Own “Medical Judgments”
Foster argues that the ALJ improperly “engaged in speculation” and made his own medical judgments. (ECF No. 16 at 25). Specifically, she argues that in “ignoring” her need for bathroom breaks, “the ALJ, who is a lay individual, engaged in speculation and medical judgments of his own, which he is unqualified to do.” (Id.).
Of course, “[t]he ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.” Schillo, 31 F.4th at 75. But the ALJ decision does not reveal that he did so. Rather, the ALJ considered Foster's alleged gastrointestinal issues, and then determined that the medical evidence had revealed that the intensity, persistence, and limiting effects of her ulcerative colitis were not as severe as Foster had claimed. By making this finding, the ALJ did not substitute his own judgment for a medical opinion, Schillo, 31 F.4th at 75, or otherwise “attempt to forge his own medical opinions based on raw data or reject diagnoses provided by medical professionals.” Ramsey v. Comm'r of Soc. Sec., 830 Fed.Appx. 37, 38 (2d Cir. 2020) (Summary Order). Instead, the ALJ accurately observed, as explained above, that the record reflected that Foster had established care for ulcerative colitis, she consistently denied having symptoms of colitis (except for isolated weight loss, nausea, lack of appetite, and epigastrium discomfort), and she consistently reported that she felt her colitis was in clinical remission. (ECF No. 14 at 21-22); cf. Ramsey, 830 Fed.Appx. at 38. As the Court noted in Antrip v. Bowen, 651 F.Supp. 376, 381 (S.D.N.Y. 1987), there is an “often thin line between an ALJ's legitimate consideration of medical evidence and his improper substitution of his own ‘medical judgment.'” But, as in Antrip, that line has not been crossed here. “The ALJ's observations about the true severity of plaintiff's pain as suggested by [her] medications were made in the context of a review of the entire record, including the objective findings and opinions of examining physicians both within and without the Administration.” Id. Thus, the ALJ did not improperly substitute his own judgment for a competent medial opinion. Schillo, 31 F.4th at 75; see, e.g., Giron v. Kijakazi, No. 22-cv-6226, 2023 WL 6121764, at *13 (S.D.N.Y. Sept. 19, 2023) (holding that ALJ's statements that claimant's “symptoms have been managed with treatment” and “has not generally required pain medication aside from Ibuprofen and Tylenol” did not cross the “thin line” noted by Antrip).
6. The ALJ Did Not Err by Failing to Obtain a Medical Source Statement
Foster argues that the ALJ erred by failing to obtain a medical source statement that would have considered all her “impairments together and produced a residual functional capacity” assessment. (ECF No. 16 at 27). Foster's argument reduces to a claim that the ALJ failed to adequately develop the record.
Given the “inquisitorial rather than adversarial” nature of Social Security proceedings, the ALJ must “investigate the facts and develop the arguments both for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 110-11 (2000). The ALJ also has “regulatory obligations to develop a complete medical record before making a disability determination.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996); see 20 C.F.R. § 416.912(b)(1) (“Before we make a determination that you are not disabled, we will develop your complete medical history for at least the 12 months preceding the month in which you file your application ....”); see also Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (“Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.”).
“Prior to elimination of the treating physician rule, as part of their duty to develop the record, ALJs were required to obtain a relevant, comprehensive opinion from the claimant's treating physician, and courts frequently remanded cases where ALJs failed to do so.” Ayala v. Kijakazi, 620 F.Supp.3d 6, 18 (S.D.N.Y. 2022); see, e.g., Romero v. Comm'r of Soc. Sec., No. 18-cv-10248, 2020 WL 3412936, at *13 (S.D.N.Y. June 22, 2020) (stating, in context of a pre-2017 application, that “ALJs fail to satisfy their duty to develop the record by having a record with the only functional assessment coming from a CE after a single examination and failing to request (and receive) a functional assessment from the treating physician(s)”) (collecting cases). But an ALJ's failure to obtain a treating source opinion did not necessarily require remand. See Swiantek v. Comm'r of Soc. Sec., 588 Fed.Appx. 82, 84 (2d Cir. 2015) (Summary Order) (“[T]his Court does not always treat the absence of a medical source statement from claimant's treating physicians as fatal to the ALJ's determination.”). As a Second Circuit panel has explained, an ALJ's failure to request medical source opinions is not a per se basis for remand where “the record contains sufficient evidence from which an ALJ can assess the [claimant's] residual functional capacity.” Tankisi v. Comm'r of Soc. Sec., 521 Fed.Appx. 29, 34 (2d Cir. 2013) (Summary Order).
“Although the treating physician rule has been abolished, the principle espoused by Tankisi still applies: whether remand is required because of failure to obtain an opinion from the claimant's treating physician depends on whether the ALJ could have reached an informed decision based on substantial evidence without it.” Ayala, 620 F.Supp.3d at 18-19 (collecting cases). So, “where 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).
Here, remand is unwarranted because the ALJ had a sufficient record on which to make his determination, even without an assessment of Foster's functional limitations from a treating provider. There are no obvious gaps in the SSA record. The SSA record contains medical records dated as recent as three months before the ALJ's November 2021 decision. The ALJ received, reviewed, and extensively cited a lengthy medical record that included treatment notes, dating back to at least February 2018, for Foster's severe impairments and her physical and mental non-severe impairments. (See ECF No. 14 at 17-23). The ALJ also considered opinions from psychological consultative examiner Dr. Alison Murphy; state agency non-examining psychological consultants Dr. Y. Sherer and Dr. M. Momot-Baker; examining consultative examiner Dr. Kautilya Puri; and state agency non-examining medical consultant Dr. J. Rosenthal. (ECF No. 14 at 18-19, 22-23). The ALJ did not defer or give any specific evidentiary weight, including controlling weight, to any prior administrative medical findings or medical opinions. (See id.). Instead, the ALJ evaluated each on their own merits. (See id.). In so doing, the ALJ found Dr. Rosenthal's opinion “not fully persuasive” because the ALJ found that Foster had “reaching limitations” that had not been reported by Dr. Rosenthal. (Id. at 22). And the ALJ found Dr. Puri's opinion that Foster “had no limitations in fine motor or gross motor activities, with mild limitations to her gait and to her ability to squat, bend, stoop, kneel, lift, and reach overhead,” “generally persuasive.” (Id. at 22-23). The ALJ also considered the psychiatric diagnoses in his RFC evaluation and omitted a psychiatric limitation because Foster's mental impairments did not cause more than mild limitation in Foster's ability to perform basic mental work activities. (Id. at 23). In sum, because there are no obvious gaps in the SSA record and the ALJ could reach an informed decision based on substantial evidence without obtaining an opinion from Foster's treating source(s), the ALJ was under no obligation to seek a medical source statement before rejecting Foster's benefits claim. See Rosa, 168 F.3d at 79 n.5; Tankisi, 521 Fed.Appx. at 34; Ayala, 620 F.Supp.3d at 18-19.
7. The ALJ Properly Assessed Dr. Murphy's Opinion
Finally, Foster argues that the ALJ did not properly assess the opinion of consultative psychiatric evaluator, Dr. Alison Murphy, who had opined about marked psychiatric limitations. (ECF No. 16 at 23-24). The ALJ found Dr. Murphy's opinion “not generally persuasive” because (a) it was “not supported by her own objective findings, as she said that [Foster] was cooperative, with appropriate eye contact, normal speech, the ability to perform serial 3 testing, and good insight,” (b) it was “not consistent with a finding that [Foster] ha[d] more than mild mental limitations because [Foster's] treating providers generally noted that [Foster] had a normal mood and affect, fluent speech, cooperative behavior, and good insight,” and (c) it was “inconsistent with the opinion rendered by [Dr. Momot-Baker], who reviewed it, as well as other evidence in the file, and opined that [Foster] had no more than mild psychiatric limitations.” (ECF No. 14 at 18-19). Foster argues that “taken to its logical extreme, the ALJ's rationale for rejecting [Dr. Murphy's] opinion based at least in part on [Foster's] subjective presentations, would justify rejection of opinions by all mental health professionals, in every case.” (ECF No. 16 at 24). Further, she argues that “the ALJ committed legal error when he engaged in no analysis as to how Dr. Murphy reached her conclusions.” (Id.).
As an initial matter, “[t]here is no requirement that the agency accept the opinion of a consultative examiner concerning a claimant's limitations.” Pellam v. Astrue, 508 Fed.Appx. 87, 89 (2d Cir. 2013) (Summary Order). Thus, the ALJ did not err by finding that Dr. Murphy's opinion, which was based on a one-time examination, was not persuasive. See, e.g., Gibbs v. Acting Comm'r of Soc. Sec., No. 20-cv-6225, 2023 WL 21867, at *7 (S.D.N.Y. Jan. 3, 2023) (noting “that the ALJ has the discretion to give [an examining consultant's] opinion partial weight based on the fact that [the consultant] only provided a one-time examination”).
In any event, as the Second Circuit has repeatedly explained, “an ALJ is free to . . . choose between properly submitted medical opinions,” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (alteration and internal quotation marks omitted), and the Court must “defer to the Commissioner's resolution of conflicting evidence,” Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012). “The most important factors ALJs consider when they evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability and consistency.” Gauda v. Comm'r of Soc. Sec., No. 23-594, 2024 WL 886595, at *2 (2d Cir. Mar. 1, 2024) (Summary Order) (alterations omitted) (quoting 20 C.F.R. § 404.1520c(a)). “The regulations further require the agency to explain how it considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings in its determination or decision.” Loucks v. Kijakazi, No. 21-1749, 2022 WL 2189293, at *1 (2d Cir. June 17, 2022) (Summary Order) (alterations and internal quotation marks omitted) (quoting 20 C.F.R. § 404.1520c(b)(2)).
See also McGonagle v. Kijakazi, No. 22-637, 2022 WL 17724696, at *1 (2d Cir. Dec. 16, 2022) (Summary Order).
As Foster explains, “in her interview with Dr. Murphy, [Foster] reported a whole host of depressive symptoms including social withdrawal, avoidance of social settings, easily fatigued, and difficulty concentrating.” (ECF No. 16 at 23; see ECF No. 14-2 at 91-92). Also, as Foster explains, upon examination, Dr. Murphy found, among other things, that Foster had “limited intellectual functioning,” no friends, and her hobbies were reading and watching TV. (ECF No. 16 at 23; see ECF No. 14-2 at 92-93). Further, as Foster explains, Dr. Murphy opined that Foster had marked limitations in interacting with others and sustaining an ordinary routine and attendance at work. (Id. at 23-24; see ECF No. 14-2 at 93). But, as the Commissioner argues, the ALJ found Dr. Murphy's opinion not persuasive because it was not well supported, and it was inconsistent with the other evidence in the record. (ECF No. 19 at 14-16; see ECF No. 14 at 18-19).
In terms of supportability, the ALJ properly found that Dr. Murphy's opinion was not well supported. (ECF No. 14 at 18). For example, as the ALJ explained, despite finding that Foster had a marked limitation with interacting with others and regulating her emotions, that opinion was not supported by Dr. Murphy's own objective findings: Foster was cooperative, with appropriate eye contact, had normal speech, could perform serial 3 testing, and had good insight and judgment. (Id. at 18; see ECF No. 14-2 at 92-93). Further, Dr. Murphy's opinion conflicted with notes from Foster's treatment providers, who generally noted that Foster had a normal mood and affect, fluent speech, cooperative behavior, and good insight. (See, e.g., ECF No. 14-1 at 149, 156, 166, 177). Indeed, at least ten times between November 2019 and November 2020, Foster denied anxiety or depression. (Id. at 149, 155, 160, 165, 176, 179, 185, 190; ECF No. 14-2 at 51, 75). And on at least nine other occasions between April 2019 and December 2020, Foster was negative for depression. (ECF No. 14-2 at 38, 40, 43, 55-56, 59, 63, 67, 71, 80).
As for consistency, the ALJ also found that Dr. Murphy's opinion was inconsistent with Dr. Momot-Baker's opinion. (ECF No. 14 at 18-19). Dr. Momot-Baker, who had reviewed Dr. Murphy's opinion, explicitly refuted Dr. Murphy's opinion: “CE examiner concluded marked limitations, however, this opinion is not supported by evidence.” (Id. at 132-33). Instead, Dr. Momot-Baker opined that Foster's mental impairments were nonsevere. (Id.) This reflects a conflict between two properly submitted medical opinions, which the ALJ was free to choose between, Balsamo, 142 F.3d at 81, and the Court must defer to the ALJ's resolution of these conflicting opinions, Cage, 692 F.3d at 112. While Dr. Murphy examined Foster and Dr.
Momot-Baker did not, Dr. Murphy's opinion is not controlling. As a Second Circuit panel has explained, “[t]he opinions of examining physicians are not controlling if they are contradicted by substantial evidence, be that conflicting medical evidence or other evidence in the record.” Krull v. Colvin, 669 Fed.Appx. 31, 32 (2d Cir. 2016) (Summary Order). And here, the ALJ explained why Dr. Murphy's opinion was contradicted by substantial evidence. Ultimately, Foster's disagreement is with the ALJ's weighing of the evidence, but the deferential standard of review prevents the Court from reweighing it. Cage, 692 F.3d at 112; Krull, 699 Fed.Appx. at 32.
Thus, the ALJ appropriately assessed Dr. Murphy's opinion and did not err by finding it not persuasive. Gauda, 2024 WL 886595, at *2.
C. The ALJ's Determination that Foster Could Return to Her Past-Relevant Work as a Receptionist (Second Part of Step Four) Was Supported by Substantial Evidence.
At the second part of step four, the ALJ determines whether the claimant's RFC would allow her to perform “past relevant work.” Schillo, 31 F.4th at 70. “If so, the claimant is not disabled.” Lesterhuis v. Colvin, 805 F.3d 83, 86 n.2 (2d Cir. 2015) (per curiam). “Past relevant work” is “work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it.” 20 C.F.R. § 404.1560(b)(1); see Glessing v. Comm'r of Soc. Sec., 725 Fed.Appx. 48, 49 (2d Cir. 2018) (Summary Order). “[T]he claimant has the burden to show an inability to return to her previous specific job and an inability to perform her past relevant work generally.” Jasinski v. Barnhart, 341 F.3d 182, 185 (2d Cir. 2003). “This inquiry requires separate evaluations of the previous specific job and the job as it is generally performed.” Id. The ALJ may inquire into the way a job is generally performed using a vocational expert and the Dictionary of Occupational Titles. Id.
See also Glessing, 725 Fed.Appx. at 49; Emmanuel G. v. Comm'r of Soc. Sec., No. 22-cv-6497, 2024 WL 303849, at *8 (S.D.N.Y. Jan. 26, 2024).
Foster makes several arguments to challenge the ALJ's determination at the second part of step four, in which the ALJ determined whether Foster's RFC would allow her to perform “past relevant work.” The Court addresses each of these arguments below.
1. The Hypothetical Posed by the ALJ to the Vocational Expert Was Adequate
Foster argues that the ALJ erred by finding that she could return to her past relevant work as a receptionist because that finding was based on an inaccurate hypothetical posed by the ALJ. (ECF No. 16 at 27-28). She explains that the ALJ's hypothetical omitted a non-exertional limitation, her need to use the bathroom with “unusual frequency.” (Id. at 27-28). She emphasizes that she was fired from her last job because of that need and because she was excessively absent. (Id. at 28). She also argues that the ALJ's hypothetical did not account for her “knee and back pain, shoulder and neck tenderness on palpation and movement.” (Id. at 29).
“An ALJ may rely on a vocational expert's testimony regarding a hypothetical as long as there is substantial record evidence to support the assumptions upon which the vocational expert based his opinion, and accurately reflect the limitations and capabilities of the claimant involved.” McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (alteration, citation, and internal quotation marks omitted); see also Gauda, 2024 WL 886595, at *2. Here, the ALJ asked the vocational expert to assume an individual who “can perform sedentary work, except that the individual can bend, stoop, kneel, and squat on a frequent basis” and “can also reach overhead with both arms on a frequent basis.” (ECF No. 14 at 69). The vocational expert testified that such an individual could perform past-relevant work as a receptionist. (Id. at 70). This hypothetical reflected the same limitations the ALJ assessed in the RFC determination (id. at 20), which, as explained above, was supported by substantial evidence. As noted by the Second Circuit, “[w]hen the hypothetical posed to the vocational expert is based on a residual functional capacity finding that is supported by substantial evidence, the hypothetical is proper and the ALJ is entitled to rely on the vocational expert's testimony.” Snyder v. Colvin, 667 Fed.Appx. 319, 321 (2d Cir. 2016) (Summary Order) (citing Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir. 1983)). Thus, the ALJ's hypothetical questioning was proper and not a basis for remand.
Foster's argument that the ALJ's hypothetical should have provided for greater limitations to account for her need to use the bathroom with “unusual frequency” (ECF No. 16 at 27-28), fails. As explained above, substantial evidence supports the ALJ's finding that Foster reported significant improvement in her ulcerative colitis over time, and that she was doing relatively well. (ECF No. 14 at 21-22). Those same records do not demonstrate that Foster's RFC must account for frequent bathroom breaks, beyond those already provided in the typical workday. The hearing testimony supports this finding. When asked at her hearing whether her abdominal pain from colitis was constant or periodic, Foster responded, “Periodically, I have to go to the bathroom.” (Id. at 64). And when asked how many times a day she must go to the bathroom, Foster said “Three or four times a day.” (Id.). Later, the ALJ asked the vocational expert how many breaks a person would be allowed during a standard eight-hour workday and still maintain their job. (Id. at 71). In response, the vocational expert testified that “regular breaks are about 15 minutes every 2 hours or a half hour for lunch. So, that adds up to about an hour per day. And then, in addition, such a person can have about 10% or 48 minutes of breaks in addition.” (Id. at 71). Thus, the number of breaks provided in a standard eight-hour workday generally coincide with the number of breaks Foster testified she might need.
Foster's argument that the ALJ's hypothetical should have provided for greater limitations to account for her “knee pain and back, shoulder and neck tenderness on palpation and movement” (ECF No. 16 at 29), also fails. As explained above (subsection IV.B.1), the ALJ adequately considered her “pain in her neck, shoulders, back, and knees” when finding that Foster was “limited to sedentary work” (ECF No. 14 at 23).
2. The Commissioner Was Not Required to Demonstrate that Foster Could Sit for the Requisite Number of Hours Per Day for Sedentary Work
Foster argues that the Commissioner needed to demonstrate that she could fulfill the requirements of sedentary work, including the ability to sit for the requisite number of hours per day. (ECF No. 16 at 27-28). But Foster misstates the law. In so arguing, Foster relies on Dambrowski v. Astrue, 590 F.Supp.2d 579, 585 (S.D.N.Y. 2008), which in turn relied on Curry v. Apfel, 209 F.3d 117, 123 n.1 (2d Cir. 2000), for the proposition that: “Rather than requiring [claimant] to demonstrate that he cannot sit for extended periods, the law requires the Commissioner to prove that [claimant] can sit for the requisite number of hours per day.” Id. But the Curry v. Apfel standard of review was abrogated in 2003. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam). As explained above, the claimant bears the burden at steps one through four. See Schillo, 31 F.4th at 70. It is Foster's “burden to show an inability to return to her previous specific job and an inability to perform her past relevant work generally.” Jasinski, 341 F.3d at 185. Only at step five does the burden shift to the Commissioner. See Schillo, 31 F.4th at 70. And that burden shift is limited. Id. At step five, “the Commissioner need only show that there is work in the national economy that the claimant can do; he need not provide additional evidence of the claimant's residual functional capacity.” Poupore, 566 F.3d at 306 (citing 20 C.F.R. § 404.1560(c)(2)); see also Schillo, 31 F.4th at 70. Thus, the Commissioner was not required to demonstrate-either at step four or at step five-that Foster could sit for the requisite hours necessary for sedentary work. In any event, because the ALJ found that Foster could return to her past relevant work, the ALJ never reached step five, and no burden shifted to the Commissioner.
“In order to support a finding that you are not disabled at this fifth step of the sequential evaluation process, we are responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that you can do, given your residual functional capacity and vocational factors. We are not responsible for providing additional evidence about your residual functional capacity because we will use the same residual functional capacity assessment that we used to determine if you can do your past relevant work.” 20 C.F.R. § 404.1560(c)(2).
3. Foster's Argument that She Could Not Perform Past-Relevant Work as a Receptionist Fails Because the ALJ Did Not Find that She was Limited to a Low-Stress Job
Foster also argues that she cannot return to her work as a receptionist because she is limited to a low-stress job-a limitation the vocational expert testified would make someone unable to perform the duties of a receptionist. (ECF Nos. 16 at 31-32; 20 at 6-7). But Foster misstates the import of the vocational expert's testimony, because Foster's RFC includes no such limitation.
True, the vocational expert did testify that a hypothetical individual, who was limited to sedentary work, had the same limitations as Foster, and was limited to “low stress jobs” would no longer be able to perform past relevant work as a receptionist. (ECF No. 14 at 70). But Foster's argument hinges on the assumption that she was limited to low-stress work. Yet the ALJ found no such limitation in his RFC determination. (See id. at 20-24). So, ultimately, this argument amounts to a disagreement with the ALJ's omission of a limitation to low-stress work in the RFC. Foster's argument that she is limited to low-stress work is based on her ulcerative colitis, major depressive disorder, and anxiety disorder. (ECF No. 20 at 7). But the ALJ considered all these impairments in his RFC determination. The ALJ considered Foster's non-severe mental impairments, including major depressive disorder and anxiety disorder, and found that they caused no more than mild limitations in Foster's ability to perform basic mental work activities. (ECF No. 14 at 18-19, 23). The ALJ also considered Foster's ulcerative colitis and found, based on a review of the medical evidence and other evidence in the record, that the intensity, persistence, and limiting effects of her alleged symptoms were not as severe as Foster had alleged. (Id. at 20-22). Because the ALJ did not find that Foster was limited to low-stress work, this argument is meritless.
The vocation expert defined “low stress jobs” as “jobs containing no more than simple, routine, and repetitive tasks, involving only simple work-related decisions, with no more than occasional workplace changes, and where there is only occasional interaction with supervisors, coworkers and/or the general public.” (ECF No. 14 at 70).
4. Foster's Objections to the ALJ's Reliance on the Dictionary of Occupational Titles Do Not Support Remand
The final four pages of Foster's memorandum of law appear to object to the ALJ's reliance on the Dictionary of Occupational Titles, which Foster appears to argue should be dispensed with because it was last updated in 1991. (See ECF No. 16 at 29-32). But Foster's argument is unclear and unfocused. Foster identifies a series of responsibilities and skills that a receptionist might be required to perform. (See ECF No. 16 at 30-31). Perhaps she means to argue that she cannot perform these responsibilities and skills. (See id.). But she fails to explain why she would be unable to do so. (See id.).
Perhaps Foster argues that the ALJ should have eschewed the Dictionary of Occupational Titles altogether. But the Dictionary of Occupational Titles may not be dispensed with absent a “reasonable explanation.” See Brault, 683 F.3d at 446 (“[T]he DOT is so valued that a [vocational expert] whose evidence conflicts with the DOT must provide a ‘reasonable explanation' to the ALJ for the conflict.”).
Perhaps she argues (as the Commissioner understood her to argue) “that the receptionist position is somehow obsolete.” (ECF No. 19 at 17). But this argument must be mistaken because a survey of the contemporary workplace would reveal the receptionist position is far from obsolete.
Perhaps she meant to argue, as she suggests on reply, that she cannot perform her past relevant work as a receptionist because she “may have learned the skills to return to this job as of 2014, . . . but not as of 2023.” (ECF No. 20 at 7). In other words, Foster might believe that her receptionist-work experience is too remote to be past relevant work. But this argument amounts to mere disagreement with the regulatory scheme. The applicable regulations define “past relevant work” as “work that you have done within the past 15 years.” 20 C.F.R. § 404.1560(b)(1). In fact, Foster's potential concern that her work experience is too remote is already accounted for. The 15-year period is meant to ensure that remote work experience is not currently applied. See 20 C.F.R. § 416.965(a) (“We do not usually consider that work you did 15 years or more before the time we are deciding whether you are disabled applies. A gradual change occurs in most jobs so that after 15 years it is no longer realistic to expect that skills and abilities acquired in a job done then continue to apply. The 15-year guide is intended to insure that remote work experience is not currently applied.”). So, this argument is also meritless.
V. Conclusion
The Court is sympathetic to Ms. Foster's medical conditions and the difficulties attendant to them. But a claimant is not entitled to benefits under the Social Security Act solely because of illness. Instead, a claimant must establish that, during the relevant period between her alleged onset date and her DLI, her illness precluded her from performing both her past relevant work and any other work that is available in significant numbers in the national economy. Because the ALJ's finding that Ms. Foster was not limited to that degree was free of legal error and supported by substantial evidence, I respectfully recommend that Foster's motion for judgment on the pleadings be DENIED and the Commissioner's cross-motion for judgment on the pleadings be GRANTED.
Finally, the Clerk of Court is respectfully directed to amend the official caption to conform to the caption reflected on the first page of this Report and Recommendation.
SO ORDERED
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days from service of this Report and Recommendation to file written objections. Fed.R.Civ.P. 6(a). 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 responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kenneth M. Karas, 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 the same address.
FAILURE TO TIMELY FILE OBJECTIONS TO THIS REPORT AND RECOMMENDATION WILL PRECLUDE LATER APPELLATE REVIEW OF ANY ORDER OF JUDGMENT TO BE ENTERED. See Caidor v. Onondaga County , 517 F.3d 601, 604 (2d Cir. 2008).
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Karas, and not to the undersigned.