Garcia v. Comm'r of Soc. Sec.

Full title: HUGO ANTONIO GARCIA, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY…

Court: United States District Court, S.D. New York

Date published: Mar 31, 2022

Civil Action 20 Civ. 7539 (PAE) (SLC) (S.D.N.Y. Mar. 31, 2022)

Opinion

Civil Action 20 Civ. 7539 (PAE) (SLC)

03-31-2022

HUGO ANTONIO GARCIA, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

SARAH L. CAVE, United States Magistrate Judge.

TO THE HONORABLE PAUL A. ENGELMAYER, United States District Judge:.

REPORT & RECOMMENDATION

SARAH L. CAVE, United States Magistrate Judge.

I. INTRODUCTION

Plaintiff Hugo Antonio Garcia (“Mr. Garcia”) commenced this action pro se pursuant to Section 205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. § 405(g). (ECF No. 1). He seeks review of the decision by the Commissioner (the “Commissioner”) of the Social Security Administration (“SSA”), denying his January 2017 application for Disability Insurance Benefits (“DIB”) under the Act. (Id.) Mr. Garcia contends that the decision of the Administrative Law Judge (“ALJ”), dated January 25, 2019 (the “ALJ Decision”), “was not supported by substantial evidence in the record, or was based on legal error.” (ECF No. 1 at 2).

The parties have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). On July 16, 2021, the Commissioner filed a motion for judgment on the pleadings (ECF No. 16) (the “Commissioner's Motion”), on December 16, 2021, Mr. Garcia, through counsel, cross-moved (ECF No. 25) (“Mr. Garcia's Motion, ” together with the Commissioner's Motion, the “Motions”)), and on December 17, 2021, the Commissioner filed a 1 reply brief (ECF No. 27). For the reasons set forth below, I respectfully recommend that Mr. Garcia's Motion be GRANTED, the Commissioner's Motion be DENIED, and the case be remanded for further proceedings.

II. BACKGROUND

A. Procedural History

On January 18, 2017, Mr. Garcia filed an application for DIB, ¹ alleging that he had been unable to work since November 9, 2016 (the “Onset Date”) due to diabetes, a neck injury, a back injury, a right shoulder injury, and high blood pressure. (Administrative Record (“R.”) 165-73, 184 (ECF Nos. 15-15-2)). On March 30, 2017, the SSA denied Mr. Garcia's application. (R. 8596). On April 11, 2017, Mr. Garcia requested a hearing before an ALJ. (R. 97-98). On September 24, 2018, he appeared before ALJ Susan Smith for an evidentiary hearing (the “Hearing”). (R. 43-70). A vocational expert (“VE”) testified at the Hearing. (R. 63-69). On January 25, 2019, ALJ Smith issued her Decision finding that Mr. Garcia was not disabled under the Act. (R. 18-29 (the “ALJ Decision”)). On August 13, 2020, the ALJ Decision became the final decision of the Commissioner when the Appeals Council denied review. (R. 3-11); see 20 C.F.R. § 404.981. 2

1 In order to quality for DIB, one must be both disabled and insured for benefits. 42 U.S.C. § 423(a)(1)(A); 20 C.F.R. §§ 404.120, 404.315(a). The last date a person meets the insurance requirement is the date by which the claimant must establish a disability. Mr. Garcia met the insurance requirements through December 31, 2020 (R. 181), and thus his disability must have begun on or before that date to qualify for DIB.

B. Factual Background

1. Non-medical evidence

Mr. Garcia was born in 1971 and was 45 years old at the time of his application. (R. 181). Mr. Garcia completed high school in Guatemala before moving to the United States in 1986 or 1987. (R. 51, 185). Mr. Garcia's native language is Spanish. (R. 183). On his disability report, Mr. Garcia indicated that he cannot speak, read, or understand English, and that he cannot write more than his name in English. (R. 183).² Mr. Garcia indicated on his function report (the “Function Report”) that he can follow spoken and written instructions, but only in Spanish. (R. 209).³

2 Mr. Garcia's disability report was completed by his attorney. (R. 191).

3 The Function Report was completed by a paralegal. (R. 209).

Mr. Garcia was employed as a maintenance worker at Mount Sinai Hospital from April 2007 to November 2016, when he stopped working due to repetitive stress injuries suffered during his normal work activities. (R. 51, 185, 267). This position involved “[a]ll kinds of maintenance . . . like mopping, sweeping, waxing, . . . [and] carrying heavy things.” (R. 51; see R. 186). Mr. Garcia is right-hand dominant. (R. 51).

Mr. Garcia resides in a sixth-floor apartment in a building with no elevator. (R. 50). At the Hearing, however, he testified that, since undergoing back surgery in January 2018, he had been staying with his aunt, who lives on the first floor of her building. (R. 50). Mr. Garcia explained that it was difficult for him to carry items like “laundry, shopping, and food” up the stairs. (R. 50). 3

2. Medical evidence

The Commissioner provided a detailed summary of the medical evidence. (ECF No. 16-1 at 6-14). Mr. Garcia provided a summary only of the medical opinion evidence (ECF No. 26 at 11-15), which largely tracks the Commissioner's summary in this respect. (See ECF No. 16-1 at 9-14). Accordingly, the Court adopts the Commissioner's summary of the medical evidence as accurate and complete and references the pertinent evidence for purposes of analyzing the Motions. See infra § III.B.1-4.

C. Administrative Proceedings

1. Hearing before the ALJ

On September 24, 2018, ALJ Smith held the Hearing, at which Mr. Garcia was represented by an attorney, Marc Strauss. (R. 43). The ALJ conducted the Hearing from Virginia, and Mr. Garcia appeared remotely from New York. (R. 43, 45, 47).

At Mr. Garcia's request, ALJ Smith arranged for a Spanish-language interpreter to appear by telephone. (R. 45). ALJ Smith was initially unable to connect with the interpreter. (R. 45). The ALJ advised Mr. Strauss that she would “go ahead with the beginning procedural matters” and asked Mr. Garcia if he was able to “understand some English[.]” (R. 46-47). Mr. Garcia initially responded, “[y]es, no problem[, ]” but then added that “[s]ometimes [he is] confused ....” (R. 47). The transcript of the Hearing reflects that the following exchange then occurred:

ALJ: I understand, and for your testimony, let's hope that the interpreters on the line. We'll start with some of the preliminary.

CLMT: No problem. No problem.

ALJ: All right.

4

CLMT: Thank you.

ALJ: So, we have another participant that you don't see. He's on the telephone. His name is George Starosta. He's a vocational expert, and of course, there is the hearing monitor in the room with you that's recording what we say. Okay. I'm Susan Smith, the Administrative Law Judge assigned to hear the case. I'm actually sitting down in Virginia, so you're appearing via the video screen today.

CLMT: No problem.

ALJ: Your case was denied. I am not bound by that. I look at the evidence and the testimony and am held to an independent decision. Okay.

CLMT: No problem.

(R. 47). The ALJ then successfully connected with the interpreter, and began questioning Mr. Garcia. (R. 48).

The ALJ asked Mr. Garcia if he learned to speak English after moving to the United States, and Mr. Garcia responded, “a little.” (R. 51). Mr. Garcia stated that he has difficulties reading and writing in English, but that, “at the job that [he] used to have before [his injury], [he] needed the language, and [he] was able to communicate.” (R. 51).

Regarding the limitations caused by his impairments, Mr. Garcia testified, inter alia, that: (i) he experiences pain in his right shoulder “especially and specifically when [he] tr[ies] to use [his] hand[;]” (ii) he is able to raise his right arm above his head, “but with pain[;]” (iii) he can sit for an hour and can stand for “[f]orty minutes to an hour[;]” (iv) he can walk eight to ten blocks and uses public transportation; and (v) he was “very depressed.” (R. 53-61). He also testified that his back condition improved following his surgery. (R. 57-58).

VE George Starosta, also testified at the Hearing. (R. 63-69). VE Starosta classified Mr. Garcia's past work as falling under the title of “floor waxer, ” which, according to the Dictionary 5 of Occupational Titles (“DOT”)⁴ code 381.687-034, was a medium⁵ category, unskilled position. (R. 63). ALJ Smith then posed two hypothetical to VE Starosta. (R. 63-65). In the first hypothetical (the “First Hypothetical”), ALJ Smith asked VE Starosta to:

4 The DOT is “an accepted basis for vocational opinion according to the Commissioner's rules.” Henry v. Colvin, 12 Civ. 6822 (KBF), 2015 WL 9238959, at *7 n.7 (S.D.N.Y. Dec. 17, 2015) (citing Brault v. Comm'r Soc. Sec. Admin., 683 F.3d 443, 446 (2d Cir. 2012)).

5 The regulations provide that “[m]edium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c).

assume a hypothetical individual [Mr. Garcia]'s age and education and the past job as described. Further assume the individual is limited to sedentary exertion; can occasionally reach overhead on the right; can occasionally stoop, kneel, balance, and crouch, and climb stairs and ramps but never crawl or climb ladders or scaffolds; must avoid concentrated exposure to hazards including dangerous moving machinery, uneven terrain, and unprotected height.

(R. 63).

VE Starosta confirmed these limitations would preclude Mr. Garcia's past work. (R. 63). The ALJ then asked whether there was any work in the national economy that the First Hypothetical individual could perform, and VE Starosta stated that he could perform the following positions:

• Mail sort clerk, also known as “addresser, ” DOT code 209.587-010, a sedentary, ⁶ unskilled position of which there were approximately 19, 000 in the national economy;

• Surveillance system monitor, DOT code 379.367-010, a sedentary, unskilled position of which there were approximately 291, 000 in the national economy; and

6

• Toy stuffer, DOT code 731.685-014, a sedentary, unskilled position of which there were approximately 4, 000 in the national economy.

(R. 63-64).

6 The regulations provide that “[s]edentary 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).

ALJ Smith then posed a second hypothetical individual (the “Second Hypothetical”) with “the same limitations” except that “the individual can never reach overhead on the right; can lift a maximum of eight pounds; and needs to be able to sit, stand, and can remain at the work station.” (R. 64). VE Starosta responded that such an individual: (i) could not perform the position of toy stuffer; (ii) could perform the portion of surveillance system monitor positions that is restricted to only video monitoring, of which there were approximately 161, 000 in the national economic; and (iii) could perform the position of mail sort clerk. (R. 65).

ALJ Smith then asked whether there were any positions available if the individual had to be absent “two times per month on an ongoing basis.” (R. 65). VE Starosta responded that such a limitation would “cost the person their job.” (R. 65).

Mr. Strauss then questioned VE Starosta. (R. 66-69). Mr. Strauss asked VE Starosta whether any positions existed for an individual who “was off-task 20 percent of the workday, ” and VE Starosta responded that there were not. (R. 66-67). The VE also confirmed that an individual with the same restrictions as the Second Hypothetical individual except that the individual “would have to walk away from the work station for about 15 minutes every hour” would be precluded from “all competitive employment.” (R. 67-68). In response to further questioning from Mr. Strauss, VE Starosta also testified that: (i) an individual who needs a cane to ambulate would be able to perform the position of video surveillance monitor; and (ii) an individual who “had difficulties rotating the neck, the head side to side and up and down” would 7 be precluded from performing the positions VE Starosta identified. (R. 68-69). In neither of the hypotheticals nor in the follow up questions to the VE did the ALJ inquire about an individual with either limited English capability or depression like Mr. Garcia.

2. The ALJ Decision and Appeals Council review

On January 25, 2019, ALJ Smith issued her Decision finding Mr. Garcia not disabled and denying his application for DIB benefits. (R. 18-29).

The ALJ followed the five-step disability determination process. 20 C.F.R. § 404.1520(a)(4)(i)-(v). As a preliminary matter, ALJ Smith found that Mr. Garcia met the insured status requirements through December 31, 2020. (R. 20). At step one, the ALJ found that Mr. Garcia had not engaged in substantial gainful activity since the onset date. (R. 20).

At step two, the ALJ found that Mr. Garcia had four severe physical impairments: lumbar degenerative disc disease; cervical disc herniation; right shoulder dysfunction; and obesity. (R. 20-22). ALJ Smith deemed non-severe Mr. Garcia's diabetes mellitus, high blood pressure, and right carpal tunnel syndrome, because these physical conditions “did not exist for a continuous period of 12 months, were responsive to medication, did not require significant medical treatment, or did not result in any continuous exertional or non-exertional functional limitations.” (R. 20).

ALJ Smith also found that Mr. Garcia's “depression does not cause more than minimal limitation in [his] ability to perform basic mental work activities and is therefore nonsevere.” (R. 21). The ALJ noted that Mr. Garcia “underwent a psychiatric consultative examination in April 2018, at which the examining psychologist noted anxiety and depression, and diagnosed the claimant with major depressive disorder, single episode.” (R. 21 (citing R. 327-331 (the 8 “Psychological Evaluation”))). The ALJ did not identify the examining psychologist by name (R. 21), but the Psychological Evaluation was signed by psychologists Tara Trout, Psy.D., and Elina Spektor, Ph.D. (R. 331).

In reaching the conclusion that Mr. Garcia's depression was non-severe, ALJ Smith “considered the four broad areas of mental functioning” found in section “12.00 of the Listings of Impairments” and “known as the ‘paragraph B' criteria.” (R. 21-22 (citing 20 C.F.R., Part 404, Subpart P, Appendix 1)).⁷ To satisfy paragraph B, the mental impairment must result in at least one extreme⁸ or two marked⁹ limitations in a broad area of functioning. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00(A)(2)(b). The broad areas of functioning are: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. Id.

7 The impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 are known as the “Listings.” Listing 12.00 covers “Mental Disorders.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00. “Paragraph B of each [Section 12] listing (except 12.05) provides the functional criteria [the Commissioner] assess[es] . . . to evaluate how [a claimant's] mental disorder limits [his or her] functioning.” Id. § 12.00(A)(2)(b).

8 An “extreme limitation” is the inability to function independently, appropriately, or effectively, and on a sustained basis. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00(F)(2)(e).

9 A “marked limitation” means functioning in this area independently, appropriately, effectively, and on a sustained basis is “seriously limited.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00(F)(2)(d).

With respect to understanding, remembering, or applying information, ALJ Smith determined that Mr. Garcia has a “mild limitation.” (R. 21).¹⁰ The ALJ noted that, in his Function Report, Mr. Garcia stated that “he sometimes forgets whether he has taken his medication” (R. 21 (citing R. 209)), and that, at the psychological examination, Drs. Trout and Spektor found 9 that Mr. Garcia “displayed impaired short- and long-term memory[.]” (R. 21 (citing R. 327-31)). ALJ Smith noted that, by contrast, Drs. Trout and Spektor found “no evidence of thought disorder and a good fund of information” (R. 21 (citing R. 327-31)), and that, at two later physical examinations, Mr. Garcia “did not report any memory problems.” (R. 21 (citing R. 480, 1039)).

10 A “mild limitation” means functioning in this area independently, appropriately, effectively, and on a sustained basis is “slightly limited.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00(F)(2)(b). “If [the Commissioner] rate[s] the degrees of [a claimant's] limitation as ‘none' or ‘mild,' [the Commissioner] will generally conclude that [the claimant's] impairment(s) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in [his or her] ability to do basic work activities.” 20 C.F.R. § 404.1520a(d)(1).

In the second functional area-interacting with others-ALJ Smith similarly found that Mr. Garcia “has a mild limitation.” (R. 21). The ALJ noted that, at his psychological examination, Mr. Garcia “complained of social isolation[.]” (R. 21 (citing R. 327)). The ALJ also noted, however, that Dr. Trout found Mr. Garcia to be “cooperative” during the exam, and that Mr. Garcia “was generally observed to be pleasant and cooperative with treatment providers.” (R. 21 (citing R. 327, 408, 475, 574, 643, 649, 847, 970)).

ALJ Smith also found that Mr. Garcia “has a mild limitation” in the mental functioning area of concentrating, persisting, or maintaining pace. (R. 21). To support his conclusion, the ALJ noted that, at the psychological examination, Mr. Garcia “complained of fatigue, sleep disturbances, and low motivation” (R. 21 (citing R. 327)), but that he also “generally displayed good concentration despite [his] subjective complaints.” (R. 21 (citing R. 297, 327-28, 1039)).

Finally, in the area of adapting or managing oneself, the ALJ found that Mr. Garcia “has no limitation.” (R. 21). ALJ Smith referenced Mr. Garcia's Hearing testimony and Functional Report, in which he acknowledged that “he can use public transportation independently” and “could do household tasks such as cooking, cleaning, and caring for a dog with help from family.” (R. 21 (citing R. 201-09)). The ALJ also noted that Mr. Garcia “reported to physicians that he could cook, do home therapy exercises, self-care, and perform other household activities with help.” (R. 21-22 (citing R. 643, 661)). 10

ALJ Smith acknowledged that “[t]he limitations identified in the ‘paragraph B' criteria are not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process.” (R. 22). The ALJ further acknowledged that “[t]he mental residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraph B of the adult mental disorders listings in 12.00 of the Listing of Impairments.” (R. 22 (citing SSR 96-8p)). ALJ Smith stated that her RFC assessment at step four “reflects the degree of limitation . . . [that she] found in the ‘paragraph B' mental function analysis.” (R. 22).

At step three, ALJ Smith found that Mr. Garcia did not have an impairment or a combination of impairments that met or medically equaled the severity of one of the Listings. (R. 22). The ALJ specifically considered Listings 1.02 (major joint dysfunction) and 1.04 (disorders of the spine), “as well as SSR 02-1p regarding obesity[.]” (R. 22).¹¹ The ALJ explained that, “[t]o meet Listing 1.02, medical evidence must show a gross anatomical deformity, associated with chronic pain and stiffness, in either: a major peripheral weight-bearing joint - e.g. hip, knee, or ankle - resulting in inability to ambulate effectively; or, when involving a major peripheral joint in each upper extremity - e.g. shoulder, elbow, or wrist-hand - resulting in inability to perform 11 fine and gross movements effectively.” (R. 22). ALJ Smith concluded that, “[w]hile [Mr. Garcia] displayed reduced range of motion in his right upper extremity, the record does not disclose that he was unable to perform fine and gross movements effectively” (R. 22 (citing R. 298, 1020-21, 1024, 1039)), and noted that Mr. Garcia “was able to ambulate effectively with a cane.” (R. 22 (citing R. 1039)). Similarly, the ALJ noted that Listing 1.04 required “compromise of a nerve root or the spinal cord with either: evidence of nerve root compression; spinal arachnoiditis; or lumbar spinal stenosis resulting in inability to ambulate effectively.” (R. 22). ALJ Smith concluded that “[t]he medical evidence does not show the types of spinal abnormalities required by the listing[, ]” and noted that Mr. Garcia “was able to ambulate, with and without the use of a cane, throughout the relevant period.” (R. 22 (citing R. 250-57, 291, 338, 1008, 1012, 1027, 1030, 1033, 1037, 1039)).

11 The Court notes that Listings 1.02 and 1.04 were eliminated as of April 2, 2021. See 20 C.F.R. Part 404, Subpart P, Appendix 1. Because they were in effect at the time of the ALJ's Decision, however, they still control for purposes of the Court's analysis. See Lowry v. Astrue, 474 Fed.Appx. 801, 805 n.2 (2d Cir. 2012) (applying Listing “in effect when the ALJ adjudicated [the challenged] disability claim”); Kiser v. Saul, 821 Fed.Appx. 211, 213 n.1 (4th Cir. 2020) (“the version of the listings in effect as of the date of the Commissioner's final decision controls.”); Distefano v. Berryhill, 363 F.Supp.3d 453, 466 n.5 (S.D.N.Y. 2019) (“Although the listings have since been revised, [courts] apply the listings that were in effect at the time the ALJ rendered his decision.”).

ALJ Smith then assessed Ms. Garcia's RFC as identical to her First Hypothetical, i.e., that he was able:

to perform sedentary work as defined in 20 CFR [§] 404.1567(a) except that [Mr. Garcia] could: occasionally reach overhead on the right; occasionally stoop, kneel, balance, crouch, and climb stairs and ramps; never crawl or climb ladders, ropes, or scaffolds; must avoid concentrated exposure to hazards including dangerous moving machinery, uneven terrain, and unprotected heights.

(R. 22-23).

ALJ Smith concluded that, while Mr. Garcia's “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” his “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. 24). 12

In support of her conclusions at step three, ALJ Smith set forth a detailed summary of Mr. Garcia's medical treatment for his shoulder, back, and neck impairments. (R. 23-25). In particular, the ALJ summarized “clinical notes and treatment records showing that [Mr. Garcia]'s pain, strength, and range of motion improved with surgical procedures, injections, medication, and physical therapy.” (R. 27; see R. 24-27). The ALJ noted that Mr. Garcia “showed improved range of motion in his right shoulder” and “consistently maintained a home exercise program and was able to use physical therapy machines.” (R. 27). The ALJ also noted that Mr. Garcia “was also able to perform daily household activities with some help and use public transportation.” (R. 27).

The ALJ also considered the opinions of several treating and non-treating sources. (R. 2627). ALJ Smith first considered the opinion of Aurelio Salon, M.D., who performed a consultative examination of Mr. Garcia in March 2017 and “opined that [Mr. Garcia] had no physical restrictions.” (R. 26 (citing R. 322)). The ALJ concluded that Dr. Salon's opinion was “supported by the examiner's clinical observations of full range of motion, full strength, full grip strength, and no atrophy.” (R. 26). The ALJ noted, however, that Dr. Salon's opinion was “not consistent with the records of treatment including therapy and surgery.” (R. 26). ALJ Smith concluded that, “although this assessment lends further support for the conclusion that [Mr. Garcia] is not totally debilitated, it is given little weight based on the record overall demonstrating a combination of impairments, which limited [Mr. Garcia]'s range of motion and his exertional and postural abilities.” (R. 26).

ALJ Smith also accorded “little weight” to the June 20, 2018 opinion of Gbolahan O. Okubadejo, M.D., “who performed [Mr. Garcia]'s spinal surgery [on January 10, 2018]” and 13 “opined in a letter that [Mr. Garcia] needed to be excused from work for one year due to the January 2018 procedure.” (R. 26 (citing R. 332)). The ALJ noted that the Record lacked “clinical observations made by Dr. Okubadejo providing support for his opinion[, ]” and that the opinion was “unsupported by the record as a whole, which shows that, following his January 2018 back surgery, [Mr. Garcia] was able to ambulate with a cane, returned to physical therapy, and improved his range of motion in his right arm and shoulder.” (R. 26 (citing R. 1004-39)).

Similarly, the ALJ gave “little weight” to the May 18, 2017 and December 4, 2017 functional capacity assessments provided by Ranga C. Krishna, M.D., which “reflect[ed] that [Mr. Garcia] was limited to less than sedentary work and could stand ten minutes; lift no more than eight pounds; never crawl, kneel, squat, or climb ladders; rarely climb stairs, balance, or coordinate with his right upper extremity; occasionally coordinate with his left upper extremity; and needed to alternate sitting and standing positions.” (R. 26 (citing R. 641-51)). ALJ Smith concluded that Dr. Krishna's opinion “overstate[d] the limitations as compared to the objective findings.” (R. 26). In particular, the ALJ noted that, while Dr. Krishna's clinical observations included reduced range of motion in Mr. Garcia's spine and right shoulder and an antalgic gait, they also showed “normal power bulk and tone in all extremities except the right shoulder and arm.” (R. 26 (citing R. 291-92, 817-18)). ALJ Smith also noted that “the overall record show[ed] that [Mr. Garcia] was able to ambulate with a cane, had grossly intact motor function and sensation, and had no loss of coordination or motor strength.” (R. 26 (citing R. 1004-39)). Additionally, “[t]o account for [Mr. Garcia]'s residual loss of range of motion and pain, ” ALJ Smith “limited [his] postural and climbing activities, and exposure to hazards.” (R. 26). 14

ALJ Smith accorded “partial weight” to the March 2018 opinion of Carl Wilson, M.D., who opined that Mr. Garcia had a “marked temporary restriction of work activity precluding any lifting, pushing, or pulling” and that Mr. Garcia “could not be on his feet all day; was unable to climb stairs extensively, squat, kneel, twist, and bend repetitively; could not use his right arm for overhead work.” (R. 26-27 (citing R. 662)). The ALJ concluded that “Dr. Wilson's opinion [was] inconsistent with his review of [Mr. Garcia]'s records showing improvement after spine and shoulder surgery, [Mr. Garcia]'s reports of activities such as cooking and household chores, and Dr. Wilson's own observations that [Mr. Garcia] had ‘normal station and gait' though presented with use of a cane.” (R. 27 (citing R. 661-62)). The ALJ also concluded that “the overall record does not support Dr. Wilson's opinion that [Mr. Garcia] was precluded from lifting, pushing, or pulling.” (R. 27). In particular, ALJ Smith found that “[t]he record shows that [Mr. Garcia]'s strength and range of motion improved with physical therapy, he continued to ambulate with a cane, could rotate his right arm against resistance, and could elevate his right arm to at least 140 degrees.” (R. 27 (citing R. 1004-39)). The ALJ acknowledged, however, that “the evidence of back surgery does support a finding that [Mr. Garcia] should not work on his feet all day.” (R. 27). Accordingly, ALJ Smith “reduced [Mr. Garcia] to sedentary exertion and limited [his] climbing, postural activities, and overhead use of his right arm given some gait abnormality, complaints of pain, and reduced range of motion in his right shoulder.” (R. 27 (citing R. 1004-39)).

At step four, the ALJ found Mr. Garcia is unable to perform his past relevant work as a floor waxer. (R. 27). At step five, ALJ Smith concluded that “[c]onsidering [Mr. Garcia]'s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that [he] can perform.” (R. 28). The ALJ noted that 15 Mr. Garcia was 45 years old on the alleged onset date, and thus was a “younger individual” for purposes of his disability claim. (R. 27 (citing 20 C.F.R. § 404.1563)). The ALJ also concluded that Mr. Garcia “has a limited education and is able to communicate in English.” (R. 28). In reaching this conclusion, the ALJ reasoned that, although he testified at the Hearing through an interpreter, Mr. Garcia “spontaneously responded to some questions asked in English during the hearing” and “admitted that he used English as it was needed at his job.” (R. 28).

ALJ Smith then relied on “the Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2[, ]” to determine whether Mr. Garcia was able to make a successful adjustment to other work. (R. 28). The ALJ noted that, if Mr. Garcia “had the residual functional capacity to perform the full range of sedentary work, a finding of ‘not disabled' would be directed by Medical-Vocational Rule 201.18.” (R. 28). ALJ Smith concluded, however, that Mr. Garcia's “ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations.” (R. 28). Accordingly, the ALJ relied on the testimony of VE Starosta, noting that, in response to her question as to “whether jobs exist in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity[, ]” the VE identified the positions of mail sort clerk (19, 000 jobs), surveillance systems monitor (291, 000 jobs), and toy stuffer (4, 000 jobs). (R. 28). “Based on the testimony of the [VE], the [ALJ] conclude[d] that, considering [Mr. Garcia]'s age, education, work experience, and residual functional capacity, [he] is capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” (R. 29). Accordingly, the ALJ determined that Mr. Garcia was not disabled from November 9, 2016 through January 25, 2019, the date of the ALJ Decision. (R. 29). 16

On August 13, 2020, the Appeals Council denied Mr. Garcia's request for review of the ALJ Decision. (R. 3-11).

III. DISCUSSION

A. Legal Standards

1. Standard of Review

Under Rule 12(c), a party is entitled to judgment on the pleadings if he establishes that no material facts are in dispute and that he is entitled to judgment as a matter of law. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999); Morcelo v. Barnhart, No. 01 Civ. 743 (RCC) (FM), 2003 WL 470541, at *4 (S.D.N.Y. Jan. 21, 2003).

The Act provides that the Commissioner's findings “as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). A court may set aside the Commissioner's decision denying benefits if it is not supported by substantial evidence or was based on legal error. See Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). Judicial review, therefore, involves two levels of inquiry. First, the Court must decide whether the ALJ applied the correct legal standard. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, No. 05 Civ. 4254 (SCR) (MDF), 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). Second, the Court must decide whether the ALJ's decision was supported by substantial evidence. Id. “In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.” Longbardi v. Astrue, No. 07 Civ. 5952 (LAP), 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate 17 to support a conclusion.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal citations omitted). The substantial evidence test applies not only to the factual findings, but also to the inferences and conclusions drawn from those facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y. 1999). In determining whether the administrative record contains evidence to support the denial of claims, the Court must consider the whole record, and weigh all evidence to ensure that the ALJ evaluated the claim fairly. See, e.g., Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999). The Commissioner, not the Court, resolves evidentiary conflicts and appraises the credibility of witnesses, including the claimant. See, e.g., Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).

Disability-benefits proceedings are non-adversarial in nature, and therefore, the ALJ has an affirmative obligation to develop a complete administrative record, even when the claimant is represented by counsel. See Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009). To this end, the ALJ must make “every reasonable effort” to help an applicant get medical reports from her medical sources. 20 C.F.R. § 404.1512(b). Ultimately, “[t]he record as a whole must be complete and detailed enough to allow the ALJ to determine the claimant's residual functional capacity.” Casino-Ortiz v. Astrue, No. 06 Civ. 155 (DAB) (JCF), 2007 WL 2745704, at *7 (S.D.N.Y. Sept. 21, 2007). When there are inconsistencies, gaps, or ambiguities in the record, the regulations give the ALJ options to collect evidence to resolve these issues, including recontacting the treating physician, requesting additional records, arranging for a consultative examination, or seeking information from others. 20 C.F.R. § 404.1520b.

The Act authorizes a court, when reviewing decisions of the SSA, to order further proceedings: “The court shall have power to enter, upon the pleadings and transcript of the 18 record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see Butts v. Barnhart, 388 F.3d 377, 382 (2d Cir. 2004). If “‘there are gaps in the administrative record or the ALJ has applied an improper legal standard, '” the Court will remand the case for further development of the evidence or for more specific findings. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)). Remand is particularly appropriate where further findings or explanation will clarify the rationale for the ALJ's decision. Pratts, 94 F.3d at 39. If, however, the reviewing court concludes that an ALJ's determination to deny benefits was not supported by substantial evidence, a remand solely for calculation of benefits may be appropriate. See, e.g., Butts, 388 F.3d at 386 (discussing Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000)).

2. Standards for benefit eligibility

For purposes of DIB, one is “disabled” within the meaning of the Act, and thus entitled to such benefits, when she is “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(3)(A). The Act also requires that the impairment be “of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 1382c(3)(B). In reviewing a claim of disability, the Commissioner must consider: “(1) objective medical facts; (2) diagnoses or medical opinions based on those facts; (3) subjective evidence of pain and disability testified to by claimant and 19 other witnesses; and (4) the claimant's background, age, and experience.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988).

Under the applicable regulations, an alleged disability is evaluated under the sequential five-step process set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v). The Second Circuit has described the process as follows:

First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on the medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the Claimant could perform.

Bush v. Shalala, 94 F.3d 40, 44-45 (2d Cir. 1996) (quoting Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983)).

For claims of mental impairments, the applicable regulations require the ALJ to use a “special technique” to evaluate the claimed mental impairments. See 20 C.F.R. § 404.1520a(a).

At step two of the five-step procedure for evaluating disability, the ALJ must rate the degree of functional limitation resulting from the claimant's mental impairment to determine whether it is “severe.” See id. at § 404.1520a(d)(1). If the claimant's mental impairment is severe, then the ALJ must determine whether the impairment “meets or is equivalent in severity to a listed mental disorder” in the Listings. Id. at § 404.1520a(d)(2). If the claimant is found to have a severe 20 impairment not in the Listings, then the ALJ must assess the claimant's residual functional capacity to determine whether the claimant can meet the mental demands of past relevant work in spite of the limiting effects of the claimant's impairment and, if not, whether the claimant can do other work, considering the claimant's remaining mental capacities reflected in terms of the claimant's occupational base, age, education, and work experience. See Id. at § 404.1520a(d)(3).

For the first four steps, the claimant bears the burden of proof. At the fifth step, the burden shifts to the Commissioner to demonstrate that there are jobs in the national economy that the claimant can perform. See, e.g., Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).

In meeting the burden of proof at the fifth step, the Commissioner can usually rely on the Medical-Vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, known as “the Grids.” Zorilla v. Chater, 915 F.Supp. 662, 666-67 (S.D.N.Y. 1996). “The [G]rids ‘take[ ] into account the claimant's residual functional capacity in conjunction with the claimant's age, education[, ] and work experience.'” Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999) (quoting Zorilla, 915 at 667). “Based on these considerations, the [G]rids indicate whether the claimant can engage in any substantial gainful work existing in the national economy.” Id. “Exclusive reliance on the Grid[s], however, is inappropriate where the medical-vocational guidelines fail to accurately describe a claimant's particular limitations.” Zorilla, 915 F.Supp. at 667. “In particular, ‘sole reliance on the Grid[s] may be precluded where the claimant's exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform.'” Rosa, 168 F.3d at 78 (quoting Zorilla, 915 F.Supp. at 667). “In these circumstances, the Commissioner must ‘introduce the testimony of a vocational expert (or 21 other similar evidence) that jobs exist in the economy which claimant can obtain and perform.'” Id. (quoting Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986)).

At the time of the ALJ Decision, the regulations required the Commissioner to evaluate a claimant's education through the use of five categories, which included the claimant's “[i]nability to communicate in English.” 20 C.F.R. § 404.1564(b)(5) (2019). This was reflected in the Grids, including, inter alia, Grid Rule 201.17, which required a finding of disability for individuals aged 45 to 49 who were “illiterate or unable to communicate in English” and limited to sedentary work as a result of their severe medically determinable impairments. 20 C.F.R. Part 404, Subpart P, Appendix 2 § 201.17 (2019).

As of April 27, 2020, however, the Commissioner eliminated the inability-to-communicate-in-English education category (the “2020 Rule Change”). See 20 C.F.R. § 404.1564; SSR 20-01p. The 2020 Rule Change applies “to new applications filed on or after [April 27, 2020], and to claims that are pending on and after [April 27, 2020].” 85 Fed. Reg. 10586-01, 2020 WL 885690. “This means that [the Commissioner] will use the [new] rule on and after [April 27, 2020] in any case in which [it] make[s] a determination or decision . . . .” Id. Reflecting the 2020 Rule Change, Grid Rule 201.17 no longer requires a finding of disability where the claimant is unable to communicate in English. 20 C.F.R. Part 404, Subpart P, Appendix 2 § 201.17. 22

3. Treating Physician Rule ¹²

12 The Court notes that “[i]n March 2017, the Social Security Administration published regulations that effectively abolished the Treating Physician Rule for claims filed on or after March 27, 2017.” Dorta v. Saul, No. 19 Civ. 2215 (JGK) (RWL), 2020 WL 6269833, at *3 n.8 (S.D.N.Y. Oct. 26, 2020). Under the new regulations, the ALJ “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources.” 20 C.F.R. § 404.1520c(a). Because Mr. Garcia filed his claim in January 2017 (R. 165), the Treating Physician Rule applies.

The regulations require the ALJ to give “controlling weight” to “the opinion of a claimant's treating physician as to the nature and severity of the impairment . . . so long as it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record[, ]” known as the “Treating Physician Rule.” Burgess, 537 F.3d at 128 (internal citation omitted); accord Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); Correale-Englehart v. Astrue, 687 F.Supp.2d 396, 426 (S.D.N.Y. 2010). “This preference is generally justified because treating sources are likely to be ‘the medical professionals most able to provide a detailed, longitudinal picture' of a plaintiff's medical impairments and offer a unique perspective that the medical tests and SSA consultants are unable to obtain or communicate.” Correale-Engelhart, 687 F.Supp.2d at 426 (quoting 20 C.F.R. § 416.927(c)(2)); see 20 C.F.R. § 404.1527.

If the ALJ determines that a treating physician's opinion is not controlling, he or she is nevertheless required to consider the following factors in determining the weight to be given to that opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence provided to support the treating physician's opinion; (4) the consistency of the opinion with the record as a whole; (5) whether the opinion is from a specialist; and (6) other factors brought to the Commissioner's 23 attention that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c). The ALJ must give “good reasons” for not crediting the plaintiff's treating physician. 20 C.F.R. § 404.1527(c)(2); see Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (explaining that Appeals Council had “an obligation to explain” the weight it gave to the opinions of the non-treating physicians). After considering these factors, the ALJ must fully set forth his reasons for the weight assigned to the treating physician's opinion. Burgess, 537 F.3d at 129.

While the ultimate issue of disability is reserved to the Commissioner, the regulations make clear that opinions from one-time examining sources that conflict with treating source opinions are generally given less weight. 20 C.F.R. § 404.1527(c)(2). See also Selian v. Astrue, 708 F.3d 409, 419 (2d Cir. 2013) (“ALJs should not rely heavily on the findings of consultative physicians after a single examination.”); Cabreja v. Colvin, No. 14 Civ. 4658 (VSB), 2015 WL 6503824, at *30 (S.D.N.Y. Oct. 27, 2015) (explaining that opinions of one-time consultants should not overrule those provided by the treating medical sources unless there are “serious errors” in treating sources' opinions). Failing to apply proper weight to a treating physician's opinion is reversible error. Greek v. Colvin, 802 F.3d 370, 376 (2d Cir. 2015).

4. Assessing a claimant's subjective allegations

In considering a claimant's symptoms that allegedly limit his or her ability to work, the ALJ must first determine “whether there is an underlying medically determinable physical or mental impairment(s) - i.e., an impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques - that could reasonably be expected to produce the claimant's pain or other symptoms.” 20 C.F.R. § 404.1529(c). If such an impairment is found, the ALJ must next evaluate the “intensity, persistence, and limiting effects of the claimant's symptoms to 24 determine the extent to which they limit the claimant's functional limitations.” 20 C.F.R. § 404.1529(c)(1). To the extent that the claimant's expressed symptoms are not substantiated by the objective medical evidence, the ALJ must evaluate the claimant's credibility. See Meadors v. Astrue, 370 Fed.Appx. 179, 183-84 (2d Cir. 2010); Taylor v. Barnhart, 83 Fed.Appx. 347, 350-51 (2d Cir. 2003).

Courts have recognized that “the second stage of [the] analysis may itself involve two parts.” Sanchez v. Astrue, No. 07 Civ. 931 (DAB), 2010 WL 101501, at *14 (S.D.N.Y. Jan. 12, 2010). “First, the ALJ must decide whether objective evidence, on its own, substantiates the extent of the alleged symptoms (as opposed to the question in the first step of whether objective evidence establishes a condition that could ‘reasonably be expected' to produce such symptoms).” Id. “Second, if it does not, the ALJ must gauge a claimant's credibility regarding the alleged symptoms by reference to the seven factors listed [in 20 C.F.R. § 404.1529(c)(3)].” Id. (citing Gittens v. Astrue, No. 07 Civ. 1397 (GAY), 2008 WL 2787723, at *5 (S.D.N.Y. June 23, 2008)). If the ALJ does not follow these steps, remand is appropriate. Id. at *15.

When a claimant reports symptoms that are more severe than medical evidence alone would suggest, SSA regulations require the reviewing ALJ to consider specific factors in determining the credibility of the claimant's symptoms and their limiting effects. SSR 96-7p, 1996 WL 374186, at *2 (superseded by SSR 16-3p for cases filed after March 27, 2017). These seven factors include: (1) an individual's daily activities; (2) the location, duration, frequency and intensity of pain or other symptoms; (3) factors that precipitate and aggravate those symptoms; (4) the type, dosage, effectiveness, and side effects of medication that the individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, that the 25 individual receives or has received for pain or other symptoms; (6) measures other than treatment the individual uses or has used to relieve pain or other symptoms; and (7) other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. See Bush, 94 F.3d at 46 n.4.

B. Evaluation of the ALJ's Decision

Mr. Garcia asserts five challenges to the ALJ Decision. Specifically, he argues that: (i) the ALJ used the wrong Grid Rule at step five based on an incorrect determination that Mr. Garcia is able to speak English; (ii) the ALJ violated the Treating Physician Rule by failing to properly assess the psychiatric opinion of Drs. Trout and Spektor; (iii) the ALJ's physical RFC determination was flawed because ALJ Smith relied on her own judgment instead of medical opinion; (iv) the ALJ failed to properly assess Mr. Garcia's subjective allegations of pain; and (v) the ALJ improperly relied on her own judgment when assessing the severity of Mr. Garcia's mental impairment. (ECF No. 26 at 17-31). The Commissioner argues that the ALJ Decision should be affirmed because it is supported by substantial evidence and based on correct legal standards. (ECF Nos. 16-1 at 1929; 27 at 2-10).

The Court finds that, based on an improper determination that Mr. Garcia can communicate in English, the ALJ failed to comply with step five. In addition, the Court finds that the ALJ's RFC determination failed to account for Mr. Garcia's mental impairment. Because these errors undermine the ALJ's step-five determination regarding the existence of a significant number of jobs in the national economy that Mr. Garcia could perform, the Court cannot conclude that the ALJ Decision was supported by substantial evidence. Thus, while the Court finds no error in the ALJ's physical RFC determination, assessment of Mr. Garcia's subjective 26 complaints of his physical pain, or determination of the severity of Mr. Garcia's mental impairment, because the ALJ committed reversible error at steps four and five, the Court respectfully recommends that remand for further proceedings is necessary.

1. Mr. Garcia's English language ability

Mr. Garcia argues that the ALJ improperly determined that he was able to communicate in English and, as a result, relied on the wrong Grid Rule in concluding that he was not disabled. (ECF. No 26 at 18-23). Mr. Garcia argues that, had the ALJ properly concluded that he could not communicate in English, she would have applied Grid Rule 201.17, which, in turn, would have mandated a finding of disability. (R. 20-21).

The Commissioner argues that substantial evidence in the record supports the ALJ's determination that Mr. Garcia can communicate in English. (ECF No. 27 at 8-9). Specifically, the Commissioner notes that, at steps four and five, “the ALJ specifically determined that ‘the claimant spoke and appeared to understand English during his testimony, spontaneously responded to questions asked in English during the hearing and admitted that he used English as needed at his job.'” (Id. at 9 (quoting R. 23)). The Commissioner also notes that, in light of the 2020 Rule Change, Mr. Garcia's inability to communicate in English would no longer require a finding of disability under Grid Rule 201.17. (Id. at 10).

As discussed above, under the regulations in place at the time of the ALJ Decision, ALJ Smith was required to determine whether Mr. Garcia was able to communicate in English. See 20 C.F.R. § 404.1564(b)(5) (2019). Specifically, the regulations provided:

Since the ability to speak, read and understand English is generally learned or increased at school, [the Commissioner] may consider this an educational factor. Because English is the dominant language of the country, it may be difficult for someone who doesn't speak and understand English to do a job, regardless of the

27

amount of education the person may have in another language. Therefore, [the Commissioner] consider[s] a person's ability to communicate in English when [it] evaluate[s] what work, if any, he or she can do. It generally doesn't matter what other language a person may be fluent in.

Id. In Vega v. Harris, 636 F.2d 900 (2d Cir. 1981), the Second Circuit found inadequate an ALJ's determination of a claimant's ability to communicate in English. In Vega, the claimant testified through an interpreter that she was able to understand English, but “[n]ot too much, ” and that she occasionally used English in her prior job at a hotel. Vega, 636 F.2d at 904. The ALJ did not specifically determine that the claimant was able to communicate in English, but nonetheless found that she was not disabled. Id. at 903-04. In concluding that remand for further proceedings was appropriate, the Second Circuit found that the “brief exchange” in English during the claimant's hearing was “not a substitute for a determination on the question of ability to communicate in English.” Id. at 904. The court also found that “the fact that Vega apparently was able to communicate sufficiently to perform her hotel job does not necessarily mean that she can communicate well enough” to satisfy the regulations. Id.

Based on a review of the entire Record, the Court finds that the ALJ's determination as to Mr. Garcia's ability to communicate in English was not supported by substantial evidence. ALJ Smith determined that Mr. Garcia could speak English based only on the facts that he “spontaneously responded to some questions asked in English during the [H]earing” and “admitted that he used English as it was needed at his job.” (R. 28). As the Vega court explained, such findings are “not a substitute for a determination on the question of ability to communicate in English” and do “not necessarily mean that [he] can communicate well enough” to satisfy the regulations. Vega, 636 F.2d at 904; see Cabrera v. Astrue, No. 06 Civ. 9918 (JCF), 2007 WL 2706276, at *6 (S.D.N.Y. Sept. 18, 2007) (finding the claimant's testimony that she sometimes 28 read newspapers and watched television in English, but could not always understand the words, was insufficient to support conclusion that she could communicate in English), modified on other grounds, 2008 WL 144697 (S.D.N.Y. 2008).

Moreover, as Mr. Garcia notes, the Record contains substantial evidence contradicting ALJ Smith's finding that he can communicate in English. (ECF No. 26 at 21-22). For example, Mr. Garcia indicated on his disability report that he is unable to speak, read, or understand English, and that he was unable to write more than his name in English. (R. 183). Similarly, Mr. Garcia indicated on his Function Report that he could follow spoken and written instructions, but only in Spanish. (R. 209). Indeed, the Record reflects the Commissioner's recognition of Mr. Garcia's limited English-language abilities, as nearly all the notices the Commissioner sent to Mr. Garcia were in Spanish. (See R. 1-17, 99-159). Based on this Record, the Court cannot conclude that ALJ Smith's determination that Mr. Garcia could communicate in English was supported by substantial evidence. See Cabrera, 2007 WL 2706276, at *7 (“Because the record does not establish whether [the plaintiff] is sufficiently proficient in English to make application of Rule 201.21 rather than Rule 201.17 appropriate, her claim must be remanded for further findings.”); c.f. Torres v. Comm'r of Soc. Sec., No. 19 Civ. 8610 (SDA), 2021 WL 839428, at *10 (S.D.N.Y. Mar. 5, 2021) (substantial evidence supported finding that the claimant could speak English where the claimant indicated in his disability report that he could read and understand English and, despite using a Spanish-language interpreter at the hearing, answered specific questions about his medical history in English); Negron v. Saul, No. 19 Civ. 7547 (KMK) (JCM), 2021 WL 465768, at *27 (S.D.N.Y. Feb. 8, 2021) (substantial evidence supported finding that the claimant could speak English where the claimant indicated on her disability and function reports that she could both 29 read and understand English and could write more than her name in English), adopted by, 2021 WL 1254426 (S.D.N.Y. Apr. 5, 2021).

The ALJ's error was not harmless for two reasons. First, as Mr. Garcia points out, a determination that he was unable to communicate in English would have mandated a finding of disability under the regulations in place at that time. See 20 C.F.R. Part 404, Subpart P, Appendix 2 § 201.17 (2019); Vega, 636 F.2d at 904. Second, even a limited ability to communicate in English appears to eliminate nearly all the jobs that the VE identified as those that an individual with Mr. Garcia's limitations could perform. Specifically, of the 314, 000 jobs that VE Starosta identified, ¹³ a single position-surveillance system monitor-accounted for 291, 000, i.e., nearly 93%.¹⁴ (See R. 28, 63-64). That position, however, requires “Level 3” language skills.¹⁵ See DOT Code 379.367-010, 1991 WL 673244. Level 3 language skills require the following:

13 291, 000 surveillance system monitor jobs + 19, 000 mail sort clerk jobs + 4, 000 toy stuffer jobs = 314, 000 total jobs.

14 100*(291, 000/(291, 000+19, 000+4, 000)) = 92.7.

15 “Each job description in the D.O.T. includes General Educational Development (‘GED') levels rated between ‘1' and ‘6' pertaining to reasoning, mathematical and language development.” Negron v. Saul, No. 19 Civ. 7547 (KMK) (JCM), 2021 WL 465768, at *27 n.24 (S.D.N.Y. Feb. 8, 2021) (citing Appendix C-Components of the Definitional Trailer, Dictionary of Occupational Titles, 1991 WL 688702 (4th ed. 1991)). “The GED levels describe the general educational background that makes an individual suitable for a particular job.” Id.

READING: Read a variety of novels, magazines, atlases, and encyclopedias. Read safety rules, instructions in the use and maintenance of shop tools and equipment, and methods and procedures in mechanical drawing and layout work.

WRITING: Write reports and essays with proper format, puncuation [sic], spelling, and grammar, using all parts of speech.

SPEAKING: Speak before an audience with poise, voice control, and confidence, using correct English and a well-modulated voice.

30 Id. Thus, even if the Record supported a finding that Mr. Garcia can understand some English, that does not rise to the level of substantial evidence to support a finding that he has Level 3 language skills. As a result, the Record lacks substantial evidence supporting the ALJ's step-five determination.

Notably, only one position identified by VE Starosta-toy stuffer-requires Level 1 language skills, “the most basic of the levels used in the DOT” and the one that arguably corresponds with Mr. Garcia's abilities. Torres, 2021 WL 839428, at *11; see DOT Code 731.685014, 1991 WL 679811.¹⁶ The VE testified, however, that only 4, 000 toy stuffer positions existed in the national economy. (R. 28, 64). While the term “significant number” is not statutorily defined, courts have deemed numbers around 4, 000 and 5, 000 not to be “significant.” See Hanson v. Comm'r of Soc. Sec., No. 15-CV-150 (GTS) (WBC), 2016 WL 3960486, at *13 (N.D.N.Y. June 29, 2016) (collecting cases); see Peach v. Berryhill, No. 17-CV-201 (MAT), 2018 WL 4140613, at *3 (W.D.N.Y. Aug. 30, 2018) (finding that 8, 991 total jobs nationally did not constitute a “significant number”). Accordingly, because the Court cannot conclude that the ALJ identified a significant number of jobs in the national economy that an individual with Mr. Garcia's RFC would be able to perform, the ALJ failed to carry her step-five burden. See L.E.D. v. Kijakazi, No. 20-CV- 31 1904 (SHK), 2021 WL 4839499, at *6 (C.D. Cal. Aug. 12, 2021) (“[B]ecause the DOT descriptions of the occupations that the ALJ found Plaintiff could perform at step five appear to exceed Plaintiff's ability to communicate in English, the Court finds that the Commissioner failed to meet its burden of proving that Plaintiff could perform other work that exists in significant numbers in the national economy at step five.”); Roman v. Berryhill, No. 17 Civ. 2804 (VSB) (DCF), 2018 WL 7291422, at *8 (S.D.N.Y. May 9, 2018) (reversing ALJ decision where “the hypotheticals posed by the ALJ to [the] VE . . . may have been inaccurate in light of the ALJ's failure to evaluate Plaintiff's educational level”), adopted sub nom. Roman v. Comm'r of Soc. Sec., No. 17 Civ. 2804 (VSB) (DCF), 2019 WL 588464 (S.D.N.Y. Feb. 13, 2019); c.f. Torres, 2021 WL 839428, at *11 (affirming ALJ decision “despite the ALJ's failure to explicitly include a limitation on Plaintiff's ability to communicate in English” where three of the four positions identified by the VE required Level 1 language skills); Negron, 2021 WL 465768, at *28 (affirming ALJ decision where there was “substantial evidence that Plaintiff could perform unskilled work at Language Level 1, despite her ‘limited education' and ‘basic' English capabilities”).

16 Level 1 language skills require:

READING: Recognize meaning of 2, 500 (two- or three-syllable) words. Read at rate of 95-120 words per minute. Compare similarities and differences between words and between series of numbers.

WRITING: Print simple sentences containing subject, verb, and object, and series of numbers, names, and addresses.

SPEAKING: Speak simple sentences, using normal word order, and present and past tenses.

DOT Code 731.685-014, 1991 WL 679811. The Court notes that, according to VE Starosta, Mr. Garcia's prior job fell under the DOT title of “floor waxer, ” which requires Level 1 language skills. See DOT Code 381.687-034, 1991 WL 673262.

The Commissioner argues that, “due to the change in the regulations, [Mr. Garcia]'s ability to speak English is [now] irrelevant, and because he was literate, he would not be found disabled under Grid Rule 201.17 in the event this matter is remanded.” (ECF No. 27 at 10). This argument, however, misses the point. While Mr. Garcia's purported inability to communicate in English may no longer automatically render him disabled under Grid Rule 201.17, this rule change does not obviate the Commissioner's step-five burden to establish the existence of a significant number of jobs in the national economy that Mr. Garcia would be able to perform. Because, for the 32 reasons discussed above, the Commissioner has failed to carry that burden, the Court respectfully recommends that remand for further proceedings is warranted.

2. The ALJ's Consideration of the Psychological Evaluation

a. Steps two and three

Mr. Garcia argues that “ALJ Smith relied on her own judgment when assessing the severity of [his] alleged mental impairments.” (ECF No. 26 at 30 (capitalization omitted)). More specifically, Mr. Garcia argues that ALJ Smith's determination regarding the non-severity of his depression was not supported by substantial evidence “to the extent that she did not rely on a medical opinion to make this assessment.” (Id.) Mr. Garcia argues that “[a]though she acknowledged that the record did not contain evidence related to [his] alleged mental condition, ” “nowhere in the substantial evidence demonstrates that ALJ Smith sent Mr. Garcia to see a consultative psychiatrist prior to making” her non-severity assessment. (Id. at 31).

The Commissioner argues that the ALJ's determination on this issue “was supported by substantial evidence and free of legal error.” (ECF No. 27 at 2). The Commissioner argues, inter alia, that “the ALJ properly applied the special technique to assess at step two the severity of [Mr. Garcia]'s depression, rating the degree of any functional limitation in four broad areas of functioning: understanding, remembering or applying information; interacting with others; concentrating, persisting or maintaining pace; and adapting or managing oneself.” (Id. at 4). “The ALJ correctly found that during the relevant period [Mr. Garcia] experienced mild limitations in the first three functional categories, and no limitations in the last broad area of functioning, thus leading the ALJ to conclude that Plaintiff's depression was not severe.” (Id.) 33

“An ALJ's decision at step two that an impairment is not severe must be ‘supported by ‘substantial evidence' in the record as a whole.'” Suzanne H. v. Comm'r of Soc. Sec., No. 20-CV-0684 (WBC), 2021 WL 5309718, at *3 (W.D.N.Y. Nov. 15, 2021) (quoting Veino, 312 F.3d 578, 586 (2d Cir. 2002)). “A step two finding that a plaintiff's impairment ‘is non-severe is not supported by substantial evidence [when] the evidence on which it is based is inconsistent with evidence that [the plaintiff's impairment] significantly impaired her ability to do basic work activities.'” Id. (quoting Parker-Grose v. Astrue, 462 F. App'' at 17-18). Conversely, “[a] step two error is not reversible and does not necessitate remand where the record is devoid of evidence that the allegedly omitted impairments were severe.” Guerra v. Comm'r of Soc. Sec., No. 16-CV-991, 2018 WL 3751292, at *2 (W.D.N.Y. Aug. 7, 2018), aff'd sub nom. Guerra v. Saul, 778 Fed.Appx. 75 (2d Cir. 2019).

The Court agrees with the Commissioner that ALJ Smith's determination that Mr. Garcia's depression was non-severe was supported by substantial evidence. As the Commissioner notes-and as Mr. Garcia does not dispute-the ALJ applied the “special technique” in making this determination. (R. 21-22). In doing so, the ALJ determined that Mr. Garcia had “mild” limitations in three of the four broad areas of mental functioning-understanding, remembering, or applying information; interacting with others; and concentrating, persisting, or maintaining pace-and no limitation in the area of adapting or managing oneself. (R. 21-22).

Mr. Garcia's argument that the Record lacks evidence relating to his depression is incorrect. The ALJ specifically relied on Drs. Trout and Spektor's Psychological Evaluation to determine that Mr. Garcia was diagnosed with depressive disorder. (R. 21 (citing R. 327-31)). The ALJ also relied on the Psychological Evaluation to evaluate the severity of Mr. Garcia's 34 depression in each of the four broad areas of mental functioning. (R. 21-22). The ALJ also considered Mr. Garcia's Function Report as well as his treatment records for his physical impairments. (R. 21-22). While the ALJ noted that the Record did “not reflect significant health treatment during the relevant period[, ]” the Commissioner is “permitted to rely on the absence of medical records in determining that a claim of total disability is ‘undermined by his failure to seek regular treatment for his alleged disabling condition.'” Shealy v. Saul, No. 18-CV-1193F (LGF), 2020 WL 1283442, at *5 (W.D.N.Y. Mar. 18, 2020) (quoting Navan v. Astrue, 303 Fed.Appx. 18, 20 (2d Cir. 2008)).

Accordingly, the Court finds that substantial evidence supported ALJ Smith's determination that Mr. Garcia's depression was non-severe.

b. Steps four and five

Mr. Garcia argues that, “to the extent that ALJ Smith blatantly ignored the opinions of Dr. Trout and Dr. Spektor [in the Psychological Evaluation], ALJ Smith conducted legal error that necessitates remand.” (R. 26 at 23). He notes that, “[r]egardless of its source, the ALJ must evaluate every medical opinion in determining whether a claimant is disabled under the [Act].” (Id. at 24 (quoting Craig v. Comm'r of Soc. Sec., 218 F.Supp.3d 249, 262 (S.D.N.Y. 2016). Mr. Garcia argues that, while ALJ Smith “briefly reference[d] a ‘psychiatric consultative examination'” in her analysis at steps two and three, she failed to “evaluate the medical opinion pursuant to the treating physician rule.” (Id. at 25).

The Commissioner argues that the ALJ's failure to consider the opinion of Drs. Trout and Spektor was not legal error because “[t]hose sources did not provide any medical opinions in their independent medical evaluation and consultation.” (ECF No. 27 at 6). The Commissioner 35 claims that Mr. Garcia “never identifies any opinions by these two sources the ALJ allegedly overlooked, and erroneously relies on case law and regulations concerning the treating physician rule, which is not applicable here because Dr. Trout and Dr. Spektor are not treating sources.” Id. Finally, the Commissioner claims that substantial evidence supported the ALJ's “decision not to incorporate any mental work-related limitations in her residual functional capacity (RFC) assessment.” Id.

As Mr. Garcia correctly notes, “[t]he Social Security Administration regulations require the Commissioner to evaluate every medical opinion received.” Hubbard v. Comm'r of Soc. Sec., No. 18 Civ. 3119 (RWL), 2019 WL 3940150, at *10 (S.D.N.Y. Aug. 5, 2019) (quotation omitted) (citing 20 C.F.R. § 404.1527(c) (“Regardless of its source, we will evaluate every medical opinion we receive.”). “Although failure to consider a medical opinion might ‘be harmless error if it could not have changed the outcome at the agency level,' ‘[a]n ALJ's failure to consider a medical opinion is not harmless [ ] where that opinion is significantly more favorable to the plaintiff than those that were considered, and is not otherwise covered by other record evidence.'” Id. (quoting Garcia v. Berryhill, No. 17 Civ. 10064 (BCM), 2018 WL 5961423, at *14 (S.D.N.Y. Nov. 14, 2018)).

The applicable regulations define “medical opinions” generally as “statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1). More specifically, the regulations provide: 36

A medical opinion is a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions in the following abilities:

(i) Your ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching);

(ii) Your ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting;

(iii) Your ability to perform other demands of work, such as seeing, hearing, or using other senses; and

(iv) Your ability to adapt to environmental conditions, such as temperature extremes or fumes.

Id. § 404.1513(a)(2)(i)-(iv).

In their Psychological Evaluation, Drs. Spektor and Trout opined that Mr. Garcia was “struggling to function at the full capacity in core areas of his life, which include the social, personal, and occupational domains.” (R. 330). They noted that he had “been suffering from depression due to the incident and injuries that he sustained while he was working.” (Id.) Among other findings, they observed that Mr. Garcia's “[s]hort and long-term memory was impaired” and that his scores on tests for depression, anxiety, somatization, and “Global Severity Index”¹⁷ to be “above the 90^th percentile” and were “an indication of significant stress.” (R. 328). Drs. Trout and Spektor diagnosed Mr. Garcia with “depressive disorder, single episode, unspecified” and “pain disorder with related psychological factors.” (R. 331). 37

17 According to Drs. Trout and Spektor, “[t]he Global Severity Index (GSI) represents the global or total score which summarizes the patient's overall level of psychological distress. The GSI is a concise, quantitative indication of the patient's current level or depth of psychological dysphoria. The GSI is the single best indicator of the patient's overall emotional adjustment.” (R. 328).

The Court agrees with Mr. Garcia that the ALJ Decision fails to reflect the required consideration of Drs. Trout and Spektor's psychological diagnoses, at least with respect to Mr. Garcia's RFC. The doctors diagnosed Mr. Garcia with depression and pain disorder, and opined that, as a result, he was “struggling to function at the full capacity in core areas of his life, which include the social, personal, and occupational domains.” (R. 330-31). As discussed above, ALJ Smith in fact relied on the doctors' Psychological Evaluation in concluding that Mr. Garcia's depression constituted a “medically determinable mental impairment.” (R. 21). Despite this finding, however, the ALJ's assessment of Mr. Garcia's RFC contains no discussion of the Psychological Evaluation as to the effects of Mr. Garcia's depression. (R. 22-27).

Even though the ALJ determined at steps two and three that Mr. Garcia's depression was non-severe and thus did not satisfy any of the impairments of Listing 12.00 (R. 21-22), "[r]emand is required if the ALJ fails to account for the claimant's nonsevere impairments when determining her RFC.” Zochios v. Berryhill, No. 17-CV-6207 (FPG), 2018 WL 1835451, at *3 (W.D.N.Y. Apr. 18, 2018) (citing Parker-Grose v. Astrue, 462 Fed. App'x 16, 18 (2d Cir. 2012) ("[A]fter finding that [the claimant's mental impairment of depression does not cause more than minimal limitation in her ability to perform basic mental work activities and is therefore nonsevere, . . . the ALJ determined [the claimant's RFC without accounting for any of the limitations arising from her mental impairment[] Thus, the ALJ committed legal error.”)); see Cantos v. Comm'r of Soc. Sec., No. 19 Civ. 4269 (GBD) (SDA), 2020 WL 5371341, at *11 (S.D.N.Y. July 31, 2020) ("[T]he Court need not determine whether the ALJ erred in finding that [the claimant's dizziness, sleep apnea, obesity and depression were nonsevere because, at a minimum, the ALJ did not consider [the claimant's medically determinable mental impairment in determining her RFC and, thus, remand 38 is required.”), adopted by, 2020 WL 5369919 (S.D.N.Y. Sept. 8, 2020); Calderon v. Comm'r of Soc. Sec., No. 16 Civ. 9002 (PKC) (RWL), 2018 WL 1466099, at *16 (S.D.N.Y. Mar. 5, 2018) (“[The ALJ] did not explain how [the claimant's [non-severe] mental illnesses informed his RFC determination, and that failure alone requires remand.”), adopted by, 2018 WL 1468687 (S.D.N.Y. Mar. 23, 2018); Rousey v. Comm'r of Soc. Sec., 285 F.Supp.3d 723, 740 (S.D.N.Y. 2018) (“Although the ALJ's finding that plaintiff's mental impairments were not severe was supported by the record, the ALJ did err in failing to consider plaintiff's mental impairments in determining plaintiff's RFC and in the hypothetical posed to the vocational expert.”); Schmidt v. Colvin, No. 15 Civ. 2692 (MKB), 2016 WL 4435218, at *13 (E.D.N.Y. Aug. 19, 2016) (“Where an ALJ fails to account for any functional limitations associated with the [non-severe] impairments in determining the claimant's RFC, a court must remand for further administrative proceedings.”) (quotation marks and citations omitted).

Indeed, ALJ Smith explicitly acknowledged that “[t]he limitations identified in the ‘paragraph B' criteria are not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process[, ]” and that “[t]he mental residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraph B of the adult mental disorders listings in 12.00 of the Listing of Impairments.” (R. 22 (citing SSR 96-8p)). Despite this acknowledgement, however, the ALJ's RFC assessment failed even to mention Mr. Garcia's mental impairment. (R. 22-27). ALJ Smith's conclusory statement that her RFC assessment at step four “reflects the degree of limitation . . . [that she] found in the ‘paragraph B' mental function analysis” does not satisfy the 39 Commissioner's burden. (R. 22); see Zochios, 2018 WL 1835451, at *4 (“The ALJ's step two conclusion includes boilerplate language indicating that the RFC assessment ‘reflects the degree of limitation [he] found in the ... mental function analysis, ” however, the ALJ's RFC analysis does not mention [the claimant]'s anxiety or bipolar disorders and the RFC determination lacks any related mental limitations. Accordingly, remand is required.”) (internal citations omitted); Calderon, 2018 WL 1466099, at *16 (“The ALJ's opinion only formulaically states that he would consider mental impairments in his RFC section, but there is nothing in the ALJ's opinion indicating that he carried out that duty. He did not explain how [the claimant]'s mental illnesses informed his RFC determination, and that failure alone requires remand.”) (internal citations omitted).

Accordingly, even if the ALJ was not required to assign a specific weight to the opinion of Drs. Trout and Spektor as to Mr. Garcia's depression, and despite substantial evidence supporting her determination that Mr. Garcia's depression was non-severe, the law required ALJ Smith to account for this mental impairment when determining the RFC. See Rousey, 285 F.Supp.3d at 740-41 (quoting Parker-Grose, 462 Fed. App'x at 18) (“Even where ‘substantial evidence supports the ALJ's finding that [a claimant's] mental impairment was nonsevere, it would still be necessary to remand . . . for further consideration [where] the ALJ failed to account [for the claimant's] mental limitations when determining her RFC.”). The ALJ's failure to do so was legal error, and the Court respectfully recommends that remand is warranted for this additional reason. On remand, the ALJ should consider whether additional medical opinion evidence regarding the functional limitations caused by Mr. Garcia's depression is warranted. 40

3. The ALJ's Physical RFC determination

Mr. Garcia argues that ALJ Smith's physical “RFC determination must fail because the ALJ relied on her own judgment as competent medical opinion.” (ECF No. 26 at 25 (capitalization omitted). He argues that, “to the extent that the record does not contain a single medical report to support that Mr. Garcia can perform sedentary work, the final decision of the Commissioner necessitates remand.” (Id.) More specifically, Mr. Garcia argues that, “ALJ Smith [did] not demonstrate^ that Mr. Garcia can sit for six hours.” (Id. at 27). To rebut the ALJ's conclusion that he was capable of performing sedentary work, Mr. Garcia specifically relies on the opinion of Dr. Krishna, who opined, inter alia, that Mr. Garcia: (i) “could lift and carry only up to eight pounds, six-to-thirty three percent of the time in an eight-hour workday[;]” (ii) “could only push six-to-thirty three percent of the time, and pull one-to-five percent of the time[;]” (iii) “could only use his left hand to grip six-to-thirty three percent of the time, while his right grip was restricted to one-to-five percent of the time[;]” (iv) “had a sitting tolerance of thirty-four-to-sixty six percent of the time [i.e., up to 5.28 hours in an eight-hour workday], his standing tolerance was limited to one-to-five percent of the time[;]” and (v) “was limited to walking only one-to-five percent of the time.” (Id. at 26-27 (citing R. 651)). Mr. Garcia also notes that “Dr. Theodore Xenos, D.C., Mr. Garcia's treating chiropractor, opined that Mr. Garcia would not be able to work his previous job or any job due to his injuries[, ]” and that Mr. Garcia's limitations included “no lifting more than a grocery bag, no bending more than five minutes, no climbing, and no sitting/standing in one position for more than fifteen minutes.” (Id. (citing R. at 563-64)).

The Commissioner argues that it was Mr. Garcia's burden to prove “the existence of a severe impairment or impairments that resulted in an RFC that prevented him from performing 41 substantial gainful activity.” (ECF No. 16-1 at 20 (citing Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009)). The Commissioner also argues that, “because a claimant's RFC is an administrative, rather than a medical, finding, it is not necessary for an ALJ to rely on medical opinions where the RFC is otherwise supported by substantial evidence.” (ECF No. 27 at 7 (citing 20 C.F.R. §§ 404.1527(d)(1), 404.1546)). Regarding Dr. Xenos' opinion as to Mr. Garcia's limitations, the Commissioner argues that, “[a]s a chiropractor, Dr. Xenos is not a medical source whose opinion can be given controlling weight.” (Id. (citing 20 C.F.R. §§ 404.1502(a), 404.1527(a)-(c)). The Commissioner also notes that the limitations Dr. Xenos identified “were only temporary, insofar as Dr. Xenos also opined that Plaintiff would conceivably be able to return to normal work functions by June 14, 2017.” (Id. (citing R. 563-64)).

Mr. Garcia's challenge to the ALJ's physical RFC determination lacks merit. As an initial matter, his claim that “the record does not contain a single medical report to support that Mr. Garcia can perform sedentary work” is incorrect. (ECF No. 26 at 25). Following his consultative examination in March 2017, Dr. Salon opined that “there are no objective findings to support the fact that [Mr. Garcia] would be restricted in his ability to sit or stand or in his capacity to climb, push, pull, or carry heavy objects.” (R. 322). Mr. Garcia's challenge to the ALJ's physical RFC assessment is therefore misplaced.

Mr. Garcia essentially challenges the ALJ's factual findings as to the opinions of Drs. Krishna and Xenos, which support a more restrictive physical RFC. “However, in determining whether the ALJ's factual findings are supported by substantial evidence, the reviewing court may not reweigh the evidence or substitute its own opinion for that of the ALJ.” Gilliam v. Comm'r of Soc. Sec., No. 17 Civ. 3764 (ER) (BCM), 2018 WL 9837921, at *10 (S.D.N.Y. Sept. 5, 42 2018), adopted sub nom. Gilliam v. Berryhill, 2019 WL 5188946 (S.D.N.Y. Oct. 15, 2019). Indeed, “[i]t is for the SSA, and not this court, to weigh the conflicting evidence in the record.” Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998); see Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”). “[O]nce an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (emphasis in original) (quotation marks and citation omitted).

The Court finds that the ALJ properly evaluated the opinions of Drs. Krishna and Xenos. In according little weight to Dr. Krishna's opinion, ALJ Smith noted that his findings were inconsistent with other Record evidence, including his own treatment records. (R. 26). Contrary to his opinion, Dr. Krishna's own clinical observations showed “normal power bulk and tone in all extremities except the right shoulder and arm.” (R. 26 (citing R. 291-92, 817-18)). ALJ Smith also noted that “the overall record show[ed] that [Mr. Garcia] was able to ambulate with a cane, had grossly intact motor function and sensation, and had no loss of coordination or motor strength.” (R. 26 (citing R. citing R. 1004-39)). Nonetheless, to partially account for the limitations assessed by Dr. Krishna, the ALJ “limited [his] postural and climbing activities, and exposure to hazards.” (R. 26).

With respect to Dr. Xenos, as the Commissioner correctly notes (ECF No. 27 at 7-8), “chiropractors are not ‘medical sources' as defined by the Act, and thus ‘cannot provide medical opinions.'” Ramirez v. Saul, No. 20 Civ. 2922 (NSR) (JCM), 2021 WL 4943551, at *11 (S.D.N.Y. July 2, 2021) (quoting Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 1995) (emphasis original)); see 20 C.F.R. § 404.1502(a). In any event, Dr. Xenos' opinion does not materially undermine the 43 substantial evidence supporting the ALJ's physical RFC assessment. As the Commissioner notes, the limitations that Dr. Xenos assessed on May 3, 2017 were temporary, as Dr. Xenos opined that Mr. Garcia would not “be able to return to normal work functions until at least June 24, 2017.” (R. 563). Accordingly, these limitations do not appear to meet the Commissioner's “duration requirement, ” which provides that, “[u]nless [a claimant's] impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months.” 20 C.F.R. § 404.1509.

Finally, contrary to Mr. Garcia's assertion (ECF No. 26 at 25), the ALJ was not required to introduce medical opinion evidence to support the RFC determination; rather, it was Mr. Garcia's burden to introduce evidence to show that his RFC was more limited than the ALJ determined. See Poupore, 566 F.3d at 306 (explaining that “the Commissioner need only show that there is work in the national economy that the claimant can do; [s]he need not provide additional evidence of the claimant's residual functional capacity”); Villalobo v. Saul, No. 19 Civ. 11560 (CS) (JCM), 2021 WL 830034, at *16 (S.D.N.Y. Feb. 9, 2021) (“It is ultimately the claimant's burden to prove that Plaintiff should have a more restrictive RFC than the one assessed by the ALJ.”) (citing Smith v. Berryhill, 740 Fed.Appx. 721, 726 (2d Cir. 2018)). As the Commissioner correctly notes, “it is not necessary for an ALJ to rely on medical opinions where the RFC is otherwise supported by substantial evidence.” (ECF No. 27 at 7). See Cook v. Comm'r of Soc. Sec., 818 Fed.Appx. 108, 10910 (2d Cir. 2020) (“[A]lthough there was no medical opinion providing the specific restrictions reflected in the ALJ's RFC determination, such evidence is not required when ‘the record contains sufficient evidence from which an ALJ can assess the [claimant's] residual functional capacity.'”) (quoting Tankisi v. Comm'r of Soc. Sec., 521 Fed.Appx. 29, 34 (2d Cir. 2013)). 44

Accordingly, the Court concludes that the ALJ's physical RFC determination was supported by substantial evidence.

4. The ALJ's assessment of Mr. Garcia's credibility

Mr. Garcia argues that ALJ Smith failed to properly assess his statements regarding the intensity and persistence of his pain. (ECF No. 26 at 28-30). He claims that his complaints were “accompanied by objective medical evidence” and, thus, were “entitled to great weight.” (Id. at 29). In particular, he notes that, “at various points throughout his chiropractic therapy, on a pain scale of zero-to-ten, Mr. Garcia's pain neck and back pain levels had always been above a five[, ]” (id. (citing (R. at 339-473; 481-640)), and that “evaluations with Dr. Krishna revealed similar pain observations.” (Id. at 29-30 (citing R. at 643; 649)). He also notes that, in his Function Report, Mr. Garcia claimed that “he woke up in pain, he could not do physical things, nor stand or sit too long due to pain, he had difficulty bathing and dressing due to pain, as well as difficulty using the toilet due to prolonged sitting[, ]” and that “he could not cook like he used to, and had trouble completing tasks around the home due to pain.” (Id. at 30 (internal citations omitted)). Finally, Mr. Garcia notes that, at the Hearing, “Mr. Garcia testified that the pain affected his ability to sit, stand, and walk, and that he had been using a cane for ambulation and balance.” (Id. (internal citations omitted)).

The Commissioner argues that “the ALJ properly evaluated the totality of the relevant record evidence, ” including Mr. Garcia's subjective statements, “and exercised his [sic] discretion in resolving the evidentiary conflicts therein to reach a well-supported RFC for work at the sedentary exertional level.” (ECF No. 16-1 at 22). 45

Like his challenge to the physical RFC determination, Mr. Garcia's complaint about the ALJ's findings in this respect represents a challenge to the ALJ's assessment of his credibility in his description of his pain and symptoms. The function of this Court's review, however, is not “‘to resolve evidentiary conflicts and to apprise the credibility of witnesses, including the claimant'”; that function is reserved to the Commissioner. Martes v. Comm'r of Soc. Sec., 344 F.Supp.3d 750, 759 (S.D.N.Y. 2018) (quoting Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983) (internal citation omitted)). It is the province of the ALJ, “after weighing objective medical evidence, the claimant's demeanor, and other indicia of credibility . . . [to] decide [whether] to discredit the claimant's subject estimation of the degree of impairment.” Tejada v. Apfel, 167 F.3d 770, 775-76 (2d Cir. 1999). “In performing this function, the Commissioner's regulations state that [she] ‘will consider all of the available evidence, including [a claimant's] medical history, the medical signs and laboratory findings, and statements about how [the claimant's] symptoms affect [him or her], '” in determining “the credibility of a claimant's allegations about ‘the intensity and persistence of [his or her] symptoms.'” Martes, 344 F.Supp.3d at 762 (emphasis omitted) (quoting 20 C.F.R. §§ 404.1529(a), 416.929(a)). The regulations also provide that the Commissioner “will not reject [a claimant's] statements about the intensity and persistence of [their] pain or other symptoms or about the effect [the claimant's] symptoms have on [their] ability to work solely because the available objective medical evidence does not substantiate [the claimant's] statements.” 20 C.F.R. § 404.1529(c)(2).

The ALJ complied with this regulation. In addition to the objective medical evidence, the ALJ considered Mr. Garcia's course of treatment over several years, the opinions of the providers and the consultative examiners, and Mr. Garcia's testimony, and, in her discretion, determined 46 that, even though Mr. Garcia's shoulder, neck and back impairments “could reasonably be expected to cause the alleged symptoms, ” they did not prevent him from performing the sedentary work described in the RFC. (R. 24-27). This was a permissible credibility determination by the ALJ that this Court declines to disturb. Martes, 344 F.Supp.3d at 763 (rejecting claimant's challenge to ALJ's credibility determination where “the ALJ considered the evidence and determined that, although [the claimant] suffered ongoing pain, that pain did not prevent him from performing sedentary work”). The ALJ identified several “specific [R]ecord-based reasons” for not fully crediting Mr. Garcia's subjective statements, Stanton v. Astrue, 370 Fed.Appx. 231, 234 (2d Cir. 2010), including Mr. Garcia's ability to “generally perform his daily activities with some help” (R. 24 (citing R. 318-25, 641-51)), his “reported improvement” following surgical procedures (R. 24 (citing R. 660-70, 1004-39)), and that “he generally displayed normal motor function and was able to ambulate with a cane secondary to spinal surgery.” (R. 25 (citing R. 766, 1008, 1030, 1037, 1039)). The ALJ also noted that Mr. Garcia “consistently maintained a home exercise program and was able to use physical therapy machines[, ]” and that he “was also able to perform daily household activities with some help and use public transportation.” (R. 27). Thus, the ALJ Decision reflects a “detailed review of the [R]ecord” that was not “‘conclusory' in any way.” Pappas v. Saul, 414 F.Supp.3d 657, 681 (S.D.N.Y. 2019); see Morales v. Berryhill, 484 F.Supp.3d 130, 150 (S.D.N.Y. 2020) (upholding ALJ's decision that included “several pages of analysis” supporting ALJ's determination not to fully credit claimant's statements regarding her conditions). Moreover, “[t]o account for [Mr. Garcia]'s residual loss of range of motion and pain, the [ALJ] limited [his] postural and climbing activities, and exposure to hazards.” (R. 26). 47

Accordingly, the Court finds that “there is no basis upon which to second guess the ALJ's credibility determination.” Harrison v. Berryhill, No. 16 Civ. 7220 (KMK), 2019 WL 580748, at *6 (S.D.N.Y. Feb. 13, 2009); see Wright v. Berryhill, 687 Fed.Appx. 45, 49 (2d Cir. 2017) (upholding ALJ's finding that claimant had “diminished credibility” given his “range of activities, ” “conservative course of . . . treatment, ” performance of “physical labor in close temporal proximity to the dates of claimed disability, ” and “readiness and ability to work in connection with his receipt of unemployment benefits”).

IV. CONCLUSION

For the reasons set forth above, I respectfully recommend that Mr. Garcia's Motion be GRANTED, the Commissioner's Motion be DENIED, and the case be remanded for further proceedings. 48

NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Engelmayer.

FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). 49