Opinion
21 Civ. 800 (VB)(JCM)
05-27-2022
LARRY GONZALEZ, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
The Honorable Vincent L. Briccetti, United States District Judge
REPORT AND RECOMMENDATION
JUDITH C. McCARTHY UNITED STATES MAGISTRATE JUDGE
Plaintiff Larry Gonzalez (“Plaintiff”) commenced this action on January 29, 2021 pursuant to 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security (the “Commissioner”), which denied Plaintiff's application for Disability Insurance Benefits (“DIB”). (Docket No. 1). Presently before the Court are: (1) Plaintiff's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, (Docket No. 17), accompanied by a memorandum of law (“Pl. Br.”), (Docket No. 17-1); and (2) the Commissioner's cross-motion for judgment on the pleadings and in opposition to Plaintiff's motion, (Docket No. 22), accompanied by a memorandum of law (“Comm'r Br.”), (Docket No. 23). For the reasons set forth below, I respectfully recommend granting the Commissioner's cross-motion and denying the Plaintiff's motion.
I. BACKGROUND
Plaintiff was born on November 25, 1965. (R. 258). Plaintiff applied for DIB on April 3, 2018. (R. 104, 256-61). In the application, Plaintiff alleged a disability onset date of August 2, 2017. (R. 258). Plaintiff's application was initially denied on June 15, 2018, (R. 92-103), after which he requested a hearing on June 25, 2018, (R. 121). A hearing was held on October 2, 2019 before Administrative Law Judge (“ALJ”) John Barry. (R. 48-91). ALJ April Wexler issued a decision on May 8, 2020 denying Plaintiff's claim. (R. 32-43). Plaintiff requested review by the Appeals Council, which denied the request on December 10, 2020, (R. 1-4), making the ALJ's decision ripe for review.
Refers to the certified administrative record of proceedings relating to Plaintiff's application for social security benefits, filed in this action on September 3, 2021. (Docket No. 16). All page number citations to the certified administrative record refer to the page number assigned by the Social Security Administration (“SSA”).
Subsequent to the filing of this lawsuit, Plaintiff states that he was awarded disability benefits with an onset date of May 9, 2020 on his second application for disability benefits. (Docket No. 17-1 at 3).
The Court only summarizes the medical evidence relevant to the issues raised in this matter. The Court also notes that Plaintiff's memorandum lacks a summary of facts, but simply lists all the medical evidence before the ALJ in the administrative record. (Pl. Br. at 4-6).
1. Medical Evidence Before the Disability Onset Date
i. Plaintiff's Hands and Fingers
Over the course of several years, Plaintiff underwent multiple trigger finger release surgeries. (R. 434-41, 493, 497). On February 19, 2014, Dr. Andrew Weiland performed an open release of Plaintiff's left ring and small trigger finger, after which Plaintiff complained of some intermittent pain but was doing well and passively had full range of finger motion. (R. 43438, 590). At an independent medical examination performed by Dr. Paul Kleinman on April 21, 2014, Plaintiff reported that he felt improvement, was working full-time, attended physical therapy and was doing stretching exercises for his fingers. (R. 446-47).
On January 18, 2017, Plaintiff underwent electromyography (“EMG”)/nerve conduction studies with Dr. Krishna, which revealed evidence of bilateral median nerve neuropathy at the wrist consistent with a diagnosis of carpal tunnel syndrome, but no evidence of cervical radiculopathy. (R. 626-30).
After experiencing triggering in the fingers of his right hand, Dr. Weiland performed another trigger release surgery on Plaintiff's right index, long, and ring fingers on February 22, 2017. (R. 439-41, 588). Follow-up appointments revealed improvements in Plaintiff's pain, stiffness and swelling. (R. 501, 584-85). By May 2, 2017, Plaintiff reported feeling ready to return to work. (R. 584).
On March 29, 2017 and May 17, 2017, Plaintiff saw Dr. R.C. Krishna for neurology consultations that revealed normal power bulk and tone in all muscle groups except for weakness in both hands. (R. 636-38, 661-63). Dr. Krishna diagnosed cervical stenosis, bilateral carpal tunnel syndrome, status post wrist surgery and status post bilateral trigger finger release.
On June 14, 2017, Plaintiff presented to Dr. Weiland with swelling over the dorsal aspect of the wrist, for which Dr. Weiland suggested nonsteroidal anti-inflammatory drugs (“NSAIDS”).
From November 8, 2016 through November 6, 2017, Plaintiff was in physical therapy for his wrist and hand at Westchester Medical Care, P.C. (R. 610-85).
ii. Plaintiff's Back Injury
Plaintiff suffered a back injury at work on March 6, 2015 when he slipped on ice. (R. 390). On August 22, 2015, Plaintiff saw Dr. Albert Graziosa, an orthopedic surgeon, complaining of continued pain. (R. 390). Dr. Graziosa diagnosed lumbar spine sprain/strain with multilevel injury to the lumbar spine and disc herniation with radiculopathy, and recommended that Plaintiff start physical therapy, continue with chiropractic therapy, use a lumbar brace for support, and try cyclobenzaprine, a muscle relaxant. (R. 391). He also sent Plaintiff for an MRI of the lumbosacral spine that revealed: (1) “mild levoscoliosis and a grade 1 L4-5 spondylolisthesis;” (2) intact distal spinal cord and conus medullaris tapering normally; (3) no compression fracture or bone tumor; (4) “bulge of the T11-12 disc, without herniation or stenosis. The T12-L1 and L1-2 discs are intact;” (5) “bulge of the L2-3 disc with mild spinal stenosis;” (6) “bulge of the L3-4 disc, with moderate neural foraminal and spinal stenoses. Impingement of the L3 nerve roots may occur within their neural foramina. Impingement of the L4 nerve roots may occur within their lateral recesses;” (7) “grade 1 spondylolisthesis and disc bulge at the L4-5 level. Concurrent hypertrophy of the L4-5 facet joints is seen. Moderate bilateral neural foraminal stenosis may impinge on the L4 nerve roots. Severe spinal stenosis is present, which may impinge on the L5 nerve roots within their lateral recesses;” (8) “shallow right neural foraminal herniation of L5-S1 disc. Impingement of the right L5 nerve root may occur within its neural foramen. The spinal canal is otherwise patent at this level. Mild hypertrophy of the L5-S1 facet joints.” (R. 419-20).
From September 11, 2015 through February 18, 2017, Plaintiff had nine more visits with Dr. Graziosa. (R. 394-418). During these visits, Dr. Graziosa consistently found tenderness, myospasm, and a limited range of motion, but intact sensation. (R. 396, 399, 402, 405, 408, 411, 414, 417). In all but the February 2017 visit, he noted negative straight leg raising tests. (Id.). During this time, Plaintiff was a UPS driver, but was having trouble working. (R. 388, 394, 396, 399, 405, 408).
On May 23, 2016, Plaintiff attended an orthopedic independent medical examination with Dr. Lawrence Foster. (R. 455-66). A physical exam revealed 5/5 strength in all muscle groups in both legs, intact heel and toe walk, negative straight leg raise test, and reduced voluntary range of motion. (R. 460). Dr. Foster recommended that Plaintiff be seen by an orthopedic spine specialist but did not see a need for surgical intervention. (R. 463). He also recommended that Plaintiff receive a pain management consultation for possible injections to the lumbar spine, but Plaintiff did not have interest in this treatment option because he felt injections were a “temporary fix.” (Id.).
Plaintiff was again referred to a pain management consultation with possible lumbar spine epidural injections in February 2017, this time by Dr. Graziosa, as well as to undergo another MRI of the lumbar spine. (R. 418). The MRI from February 24, 2017 revealed disc bulging, stenosis, possible impingement, spondylolisthesis, and hypertrophy and degeneration of facet joints, with “no significant change in appearance of the lumbosacral spine when compared to 2015.” (R. 525). An EMG/nerve conduction examination was done by Dr. Marini on March 21, 2017 and revealed sensory peripheral neuropathy affecting both legs, no evidence of lumbar radiculopathy, and no evidence of myopathy. (R. 528).
Plaintiff saw Dr. Graziosa again on March 30, 2017 and April 29, 2017, complaining of continued pain in his lower back. (R. 388, 491). Dr. Graziosa opined that based on the MRI findings and Plaintiff's continued discomfort and pain in his lower back, “it is clear that he will continue to have pain indefinitely” and will require ongoing chiropractic management, physical therapy, and pain medications to alleviate the pain. (R. 389). He also recommended that Plaintiff be evaluated by a spine surgeon and that he consider spinal epidural injections. (Id.).
2. Medical Evidence After the Disability Onset Date
i. Dominick Senzamici, D.C., P.C.
Plaintiff saw Dominick Senzamici, DC, PC (“Dr. Senzamici”) for chiropractic care from January 6, 2017 through April 25, 2018. (R. 696-743). At a visit on August 3, 2017, Plaintiff reported being in too much pain to work, and stated that while he was at work the previous day, he suffered from extreme pain that ran down both of his legs. (R. 725). He finished the workday, but stated that he “truly can't move [without] pain.” (Id.). Dr. Senzamici noted that Plaintiff has reduced range of motion in all lumbar planes and that he had a positive straight leg raise test. (Id.). On August 7 and 9, 2017, Plaintiff came for follow-up visits and stated that he was on “total bedrest” over the weekend, and Dr. Senzamici again indicated in the record that Plaintiff had reduced range of motion in all lumbar planes due to pain. (Id.). Dr. Senzamici wrote a letter on August 8, 2017 to UPS Human Resources explaining that Plaintiff's symptoms worsened on August 3, 2017 to involve both legs and that it was his chiropractic opinion that Plaintiff had “reached a point in his condition that continued work cannot be performed to the level that UPS requires.” (R. 513). Plaintiff continued to see Dr. Senzamici, continuously complaining of back pain, radiating to the legs, and Dr. Senzamici consistently observed reduced lumbar range of motion, (R. 695-743), and occasionally noted positive straight leg raising tests, (R. 522, 702, 706-09, 712-13, 722). During at least one visit, Dr. Senzamici observed Plaintiff's motor strength to be 4/5 in the right leg with diminished deep tendon reflexes. (R. 702).
According to the regulations, a chiropractor is not listed as an acceptable medical source. See 20 C.F.R. § 404.1513(a). “Instead, chiropractors are expressly listed in a different section, under ‘other sources' whose ‘[i]nformation ... may also help [the ALJ] to understand how [Plaintiff's] impairment affects [his] ability to work.'” Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 2022) (quoting 20 C.F.R. § 404.1513(e) (1994)). “Because the regulations do not classify chiropractors as either physicians or “other acceptable medical sources,” chiropractors cannot provide medical opinions.” Id.
On April 3, 2018, Dr. Senzamici completed a Physical Capacities Assessment Questionnaire, remarking that Plaintiff was able to sit and stand for one hour each in an eight hour workday, and lift/carry up to 10 pounds frequently, 11-20 pounds occasionally, but could never carry more than 20 pounds. (R. 517). He stated that Plaintiff could never use his hands for simple grasping or fine manipulation due to multiple hand surgeries, but could use them for pushing and pulling; could occasionally bend, reach above and kneel; and could never squat, crawl, climb, stoop or crouch due to back spasms and pain. (R. 519).
In a letter dated September 25, 2019, Dr. Senzamici remarked that Plaintiff's chronic lumbar condition “has continued to deteriorate over time” and that Plaintiff now has bilateral pain and numbness in both legs. (R. 854). He stated that Plaintiff “had to retire early due to the fact he could not do his daily work requirements, because his condition would worsen when he attempted to do them.” (Id.). Dr. Senzamici noted that Plaintiff's spine had moderate thoracic and lumbar muscle spasms, which are painful upon light touch, and that Plaintiff's range of motion in the lumbar spine is reduced in all planes, with straight leg and double leg raises causing both lumbar and lower extremity pain. (Id.). He said it was his professional opinion that Plaintiff's condition was permanent, “continues to degenerate causing increased pain,” and may require surgical intervention. (Id.). He opined that Plaintiff has a “total disability of a degenerative nature and cannot seek future work.” (Id.).
ii. Emilio Biagiotti, M.D.
Plaintiff saw Dr. Emilio Biagiotti, an internal medicine doctor, for a physical exam on August 21, 2017. (R. 477). Dr. Biagiotti noted that Plaintiff had lower back pain shooting down his legs, as well as lumbar radiculopathy and leg swelling, and diagnosed edema, unspecified type. (R. 479, 825). Dr. Biagiotti referred Plaintiff for a bilateral lower extremity venous duplex ultrasound, which was done on September 26, 2017. (R. 780). The ultrasound revealed no evidence of deep vein thrombosis in either leg. (Id.).
Plaintiff followed up with Dr. Biagiotti on December 4, 2017, who referred him to physical therapy and for cervical traction. (R. 489).
Plaintiff saw Dr. Biagotti again on September 21 and October 1, 2018 regarding his leg edema, (R. 755, 764-65), for which Dr. Biagotti noted that Plaintiff takes Lasix, (R. 765).
iii. Lawrence Moricone, D.C.
Dr. Lawrence Moricone, a chiropractor, completed an independent examination on October 6, 2017, in which he noted that Plaintiff had a normal gait, spinal tenderness, muscle strength of 5/5 in both legs, and normal lumbar ranges of motion. (R. 448-53). Dr. Moricone's impression was that Plaintiff had lumbosacral strain/sprain superimposed upon degenerative changes and that he had achieved maximum chiropractic improvement. (R. 450). Dr. Moricone opined that Plaintiff was capable of medium work, and could frequently lift/carry and push/pull 40 pounds, and frequently sit, stand, walk and climb. (R. 453).
A chiropractor is not an acceptable medical source and cannot provide a medical opinion. See supra note 4.
iv. Wei Cheng, M.D.
Plaintiff saw Dr. Wei Cheng, an internal medicine doctor, at Montefiore on November 29, 2017, November 6, 2018, and March 13, 2019 for unrelated medical issues like sore throat, fever and cough. (R. 800, 806, 815-20). As relevant to Plaintiff's disability claims, during each of those visits, Dr. Cheng noted that Plaintiff had no edema and intact neurological functioning. (R. 802, 808, 817).
v. Michael Healy, M.D. - Consultative Examination
Dr. Michael Healy performed a consultative internal medicine examination on June 4, 2018. (R. 745-51). Plaintiff reported back pain that radiated into both legs and was aggravated by prolonged sitting, standing, walking or bending and was not relieved in any position. (R. 745). He also stated that he had a history of carpal tunnel syndrome in both wrists, wrist fatigue, and mild discomfort when he used his hands for a long time. (Id.). Plaintiff noted that he could cook, do light cleaning, do laundry, shop, shower and dress himself, but had difficulty with excessive walking and stated he could walk for about half a mile before he had to stop due to pain. (R. 74546). Despite fatigue factor in his hands, he said he could write and button. (R. 745).
Dr. Healy's physical examination revealed that Plaintiff had a widened gait but normal stride and that he could walk on heels and toes without difficulty; squat fully; used no assistive device; needed no help getting on and off the exam table or changing for the exam; and was able to rise from the chair without difficulty. (R. 746). Plaintiff had decreased ranges of motion in the lumbar spine and mild discomfort on range of motion examination of both knees, but full ranges of motion in the shoulders, elbows, forearms, wrists, hips, knees and ankles. (R. 747). He had no sensory deficits, no muscle atrophy, negative straight leg raising test, 4/5 leg strength, 5/5 arm strength, 5/5 grip strength, and intact hand and finger dexterity. (Id.). His extremities had no cyanosis, clubbing or edema. (Id.). Dr. Healy concluded that Plaintiff had moderate limitations in sitting, standing, walking and climbing stairs, as well as mild limitations in lifting, carrying, reaching and handling objects with his right upper extremity. (R. 748).
vi. Dr. Gandhi-State Agency Medical Consultant
Dr. Gandhi, a State agency medical consultant, reviewed the record on June 14, 2018 and opined that Plaintiff could perform light work. (R. 98-103). He noted that Plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently; sit, stand, or walk for a total of six hours in an eight-hour workday; and was not limited in his ability to push/pull. (R. 99). He found that Plaintiff could frequently climb ramps and stairs, kneel, crouch and crawl; and occasionally stoop and climb ladders, ropes and scaffolds. (Id.). Dr. Gandhi also opined that Plaintiff must avoid concentrated exposure to hazards. (R. 100).
vii. Arlen Fleisher, M.D.
Plaintiff had a consultation with Dr. Arlen Fleisher at the Center for Vein Restoration on December 3, 2018 for an evaluation of pain, swelling, skin changes and associated heaviness in both of his legs, all of which had been occurring for several months. (R. 756-58). Plaintiff explained that due to these symptoms, he was having trouble sleeping, completing household chores, and performing work-related activities and obligations. (R. 756). Leg elevation and limiting activity relieved his pain and compression stockings provided “significant relief.” (Id.). Plaintiff denied joint and lower back pain, muscle weakness, and paresthesia, and upon physical examination, was in no acute distress, had normal muscle tone, was neurovascularly intact, and had bilateral pitting edema. (R. 757). A duplex ultrasound was performed and was negative for venous insufficiency and deep vein thrombosis in the lower extremities, though Dr. Fleisher opined that Plaintiff's presenting symptoms and physical exam suggested venous disease and recommended further investigation and examination. (R. 758). Dr. Fleisher diagnosed localized edema and venous insufficiency, and determined that no endovenous ablations were needed. (Id.).
viii. Medical Expert Testimony of Dr. James Todd
Based on his review of the record evidence, Dr. James Todd testified as a medical expert at Plaintiff's October 2, 2019 hearing. (R. 74-87). Dr. Todd stated that Plaintiff had an abnormal MRI from August 2015 which indicated “possible L4 nerve root impingement,” but did not “show any definitive reasons that would lead to functional impairment.” (R. 78). Dr. Todd emphasized that “the word ‘possible' [wa]s the operative word” because other neurologic exams in the record, such as Dr. Cheng's exam from March 13, 2019, were normal. (Id.). Dr. Todd also noted that Plaintiff's orthopedic doctors recommended a physical therapy program and pain management, but there are no records indicating that Plaintiff followed these recommendations. (R. 78-80). Dr. Todd testified that Plaintiff's doctors did not recommend chiropractor care because it was not indicated for this problem. (R. 80). Nevertheless, Plaintiff saw a chiropractor, and was “non-compliant with the recommendations of the consulting orthopedic doctors.” (R. 79). Dr. Todd concluded that Plaintiff “clearly has a pain problem with muscle spasm but that in itself would not interfere with routine light work duty.” (R. 80). He stated that he would not be surprised if Plaintiff “has a mild sensory neuropathy with sensation impaired in that nerve.. .that runs from the knee to the ankle on the lateral side.[b]ut that doesn't cause any functional impairment in terms of ability to do functional activities”. (R. 81). Dr. Todd also acknowledged that the record includes evidence of carpal tunnel problems. (R. 86). Based on his review of the record, Dr. Todd opined that Plaintiff did not meet or equal a listing or listings in combination, and that Plaintiff would be able to return to light work duty with the only potential restriction of wearing elastic stockings to help with leg edema. (R. 82-83).
ix. Evidence Submitted to the Appeals Council: Montefiore Records
After receiving the ALJ's May 2020 decision, Plaintiff submitted additional evidence to the Appeals Council for consideration in October 2020, which included a letter from Montefiore Spine Center summarizing Plaintiff's October 22, 2020 visit and treatment, a medication list, and a lumbar spine MRI from June 25, 2020. (R. 12-28). The letter from Montefiore noted that Plaintiff was being treated for “chronic low back pain secondary to symptomatic lumbar spondylolisthesis and lumbar stenosis with neurogenic claudication,” that multiple medications, including NSAIDs, have not provided improvement but that epidural steroid injections did provide 30% improvement for about one week. (R. 12). Further, Plaintiff was referred for a neurosurgical evaluation where surgical decompression was recommended, but Plaintiff refused. (Id.). The June 2020 lumbar spine MRI revealed “no significant spinal canal or neural foraminal stenosis” at L1-L2 or L2-L3; “[d]iffuse disc bulge[s] and facet degenerative changes caus[ing] moderate spinal canal and bilateral neural foramen compromise at L3-L4 and L4-L5; and “[d]iffuse disc bulge” with “mild spinal canal compromise” at L5-S1. (R. 27-28).
B. Non-Medical Evidence
1. Plaintiff's Function Report
In April 2018, Plaintiff completed a function report. (R. 316-20). He stated that he did not need any special help or reminders to take care of his personal needs and grooming or to take medicine, and that his ability to handle money had not changed since his condition began. (R. 317-18). He reported preparing meals daily with the help of his wife, but had been cooking less since his injuries began. (R. 317). He was able to fold clothes and do light cleaning, and his dish washing was limited. (Id.). His hobbies consisted of watching television daily and he socialized by talking daily with others in his life. (R. 318). He stated that he did not go anywhere on a regular basis. (Id.). Plaintiff reported being able to walk four blocks before needing to rest for two minutes. (R. 319).
Plaintiff described his back pain as stabbing and his hand pain as throbbing. (R. 320). He experienced the pain daily and it would last for half an hour; his pain had also worsened over time. (Id.). He took Aleve for the pain as needed, twice daily. (Id.).
2. Plaintiff's Testimony
Edward Madigan, Esq. represented Plaintiff at his hearing on October 2, 2019. (R. 50). Plaintiff testified that he worked for UPS as a package driver for over thirty years, until his disability onset date of August 2, 2017. (R. 54-56). He had an accident at work in 2015, when he fell on black ice, and by August 2017, the pain had escalated to the point that he was having a hard time walking. (R. 59, 73). Though he had been hurt about thirteen times during his career with UPS, after August 2, 2017, he could not return to work because “it was too painful” and he had not worked at all since that date. (R. 55, 72). As a package driver, Plaintiff's responsibilities included driving to locations, taking packages off of the truck, delivering them to the addressees, and lifting up to 150 pounds. (R. 56). At the hearing, the ALJ stipulated to the fact that Plaintiff could not do his past work. (R. 73).
Plaintiff stated that he suffered from constant, daily pain in his lower back which he rated at a seven out of ten. (R. 58-59, 66). He also described swelling and stiffness in both of his hands, and rated this pain at a five out of ten. (R. 58-59, 67). He had had several surgeries on both of his hands, one on the fingers of his right hand in February 2017 and two prior surgeries to the fingers in the left hand. (R. 59). Additionally, Plaintiff had edema in his legs; sleep apnea, for which he used a CPAP machine; and high blood pressure. (R. 58-59).
Plaintiff's treatment has included chiropractic care, and seeing Dr. Grazioso, an orthopedist, every two to three months for about a year. (R. 60-63). Dr. Grazioso recommended surgery which Plaintiff refused out of fear, and recommended that Plaintiff do physical therapy. (R. 62-63). Instead, Plaintiff went to the chiropractor, whom he was seeing weekly. (R. 63). Plaintiff testified that he took the following medications: baby aspirin, Lipitor, Clarinex, rampiril, Nexium, Lovaza, gabapentin, naproxen, Lasix and vitamins. (R. 65-66). When necessary, he took Aleve for the pain, approximately once or twice per week, but had been trying to stay off of pain medication. (R. 67). He testified that he did not have any side effects from any of these medications. (Id.).
Plaintiff stated that he got four or five hours of interrupted sleep per night because he was “very uncomfortable” when he was sleeping. (Id.). He did not cook or do laundry, but he did wash dishes, do light cleaning, help fold the clothes, and help his wife carry the bags when she did grocery shopping. (R. 68). Plaintiff did not attend religious services or belong to any clubs or social organizations, but he did visit friends and relatives and go out to movies, theaters, sporting events, and restaurants. (Id.). Plaintiff stated that he spent a lot of time at the computer, and played golf once per week, which was his only exercise. (R. 69). Plaintiff explained that when golfing he used a cart rather than walking. (R. 69-70). Plaintiff drank occasionally and did not smoke. (R. 70). He said that he was able to feed, dress, and bathe himself. (Id.). In a typical day, Plaintiff showered, drove his wife to the train so she could go to work, visited his mother at the nursing home, and spent the rest of the day watching television and playing on the computer at his sister-in-law's house before picking his wife up. (R. 70-71).
Plaintiff testified that he did not use a cane, walker, braces or splints in order to walk, and was able to walk a quarter mile before needing to stop. (R. 71). He could stand for ten minutes before he needed to switch positions, and could sit for one to two hours before needing to get up and move around. (R. 71-72). He sometimes had difficulty using the stairs in his home. (R. 72). Plaintiff could lift or carry thirty pounds occasionally with his right hand. (R. 74).
3. Vocational Expert Testimony
Vocational Expert (“VE”) Lanell Hall testified that Plaintiff's most recent work consisted of employment as a sales route driver. (R. 88). The ALJ posed a hypothetical to VE Hall, asking her whether the following individual could perform his past work: an individual who could lift and carry ten pounds frequently; twenty pounds occasionally; was able to sit, stand, or walk for six hours each in an eight-hour workday; could never climb ladders, ropes, and scaffolds; frequently climbed ramps and stairs; frequently balanced and bent; occasionally stooped, crouched, crawled, and kneeled; frequently used his hands for fine fingering and manipulation bilaterally; and would be off task five percent of the workday due to the effects of pain. (R. 8889). VE Hall stated that such an individual could not perform Plaintiff's past work because it exceeds the light exertion level. (R. 89). However, VE Hall stated that jobs exist in the national economy for such a hypothetical individual, namely cashier two, housekeeping cleaner, and marker, all of which are light jobs and have a Specific Vocational Preparation (“SVP”) of 2. (Id.).
Attorney Madigan then asked VE Hall whether those three jobs would still be available if Plaintiff were absent more than two days per month, and VE Hall testified that they would not because no job exists for a person who is absent more than one day per month. (R. 90). Attorney Madigan then modified the ALJ's hypothetical to include limitations for sitting, standing, and walking to two hours each in an eight-hour workday with occasional use of ramps, and occasional bending, kneeling and use of the hands. (Id.). VE Hall testified that these limitations would preclude all work because that would not equal a full-time workday or work week. (Id.).
C. The ALJ's Decision
ALJ Wexler determined that Plaintiff meets the insured status requirements of the Social Security Act (“Act”) through December 31, 2022. (R. 34). Thereafter, ALJ Wexler applied the five-step procedure established by the Commissioner for evaluating disability claims. See 20 C.F.R. § 404.1520(a). (R. 34-43). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged disability onset date, August 2, 2017. (R. 34). At step two, the ALJ determined that Plaintiff had the following severe impairments: (1) degenerative disc disease of the lumbar spine, (2) peripheral neuropathy of the bilateral lower extremities, (3) obesity, (4) bilateral carpal tunnel syndrome, and (5) bilateral trigger fingers status post multiple surgeries. (R. 34-35). The ALJ further found that Plaintiff's obstructive sleep apnea, hypertension, hyperlipidemia, and gastroesophageal reflux disease were non-severe impairments. (R. 35). At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). (R. 35).
The ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b) except that he can lift and carry ten pounds frequently and twenty pounds occasionally; can sit, stand, and walk for six hours each in an eight-hour workday; can never climb ladders, ropes, or scaffolds; can frequently climb ramps and stairs, balance and bend; can occasionally stoop, crouch, crawl and kneel; has frequent use of his hands for fine and gross manipulation bilaterally; and will be off task 5% of the workday due to the effects of pain. (R. 36). In arriving at the RFC, the ALJ considered all of Plaintiff's symptoms and their consistency with the objective medical evidence and other evidence in the record. (Id.). The ALJ concluded that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (R. 37). The ALJ reviewed the opinion evidence in the record, finding Dr. Gandhi's and Dr. Todd's opinions “partially persuasive;” Dr. Senzamici's opinion not persuasive; and Dr. Healy's consultative examiner opinion persuasive. (R. 40-41).
At step four, the ALJ determined that Plaintiff could not perform his past relevant work as a sales route driver. (R. 41-42). The ALJ thereafter concluded that Plaintiff was not disabled under the Act because considering his age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. (R. 42-43).
II. DISCUSSION
Plaintiff argues that the ALJ's decision should be reversed and remanded for further administrative proceedings because the ALJ's RFC determination is not supported by substantial evidence, as the ALJ improperly evaluated the Plaintiff's RFC as light rather than sedentary; and failed to adequately explain why the Plaintiff did not meet or equal Listing 1:15 and 1:21. (Pl. Br. at 7-11). Plaintiff also contends that because a different ALJ decided the case than the one who presided over the hearing, his due process rights were violated and the Commissioner violated the Hearings, Appeals, and Litigation Law Manual (“HALLEX”) guidelines. (Id. at 1214). The Commissioner counters that the ALJ's decision should be affirmed because substantial evidence supports the ALJ's credibility and RFC findings, as well as the ALJ's conclusion that Plaintiff's impairments do not meet or equal the requirements of a listing. (Comm'r Br. at 1828). The Commissioner further maintains that the case's reassignment to ALJ Wexler did not violate HALLEX or Plaintiff's due process rights. (Id. at 28-30).
The Court notes that Plaintiff's headings in his Table of Contents also lists as an argument that the ALJ “failed to follow the proper sequential evaluation of disability,” (Pl. Br. at 2), though this argument is not mentioned or addressed substantively within the body of Plaintiff's memorandum. Even if Plaintiff had properly included this argument, I respectfully recommend finding that there is no merit to it given that the ALJ followed the five-step procedure established by the Commissioner for evaluating disability claims. (R. 34-43); see 20 C.F.R. § 404.1520(a).
A. Legal Standards
A claimant is disabled if he or she “is unable ‘to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.'” Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)). The Social Security Administration (“SSA”) has enacted a five-step sequential analysis to determine if a claimant is eligible for benefits based on a disability:
(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a “residual functional capacity” assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the
national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008); 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). The claimant has the general burden of proving that he or she is statutorily disabled “and bears the burden of proving his or her case at steps one through four.” Cichocki, 729 F.3d at 176 (quoting Burgess, 537 F.3d at 128). At step five, the burden then shifts “to the Commissioner to show there is other work that [the claimant] can perform.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 445 (2d Cir. 2012).
When reviewing an appeal from a denial of SSI or disability benefits, the Court's review is “limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); see also 42 U.S.C. § 405(g). Substantial evidence means “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)). Put another way, a conclusion must be buttressed by “more than a mere scintilla” of record evidence. Id. (quoting Consolidated Edison, 305 U.S. at 229). The substantial evidence standard is “very deferential” to the ALJ. Brault, 683 F.3d at 448. The Court does not substitute its judgment for the agency's “or determine de novo whether [the claimant] is disabled.” Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (alteration in original) (quoting Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)).
However, where the proper legal standards have not been applied and “might have affected the disposition of the case, [the] court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). Therefore, “[f]ailure to apply the correct legal standards is grounds for reversal.” Id.
On January 18, 2017, the SSA considerably revised its regulations for evaluating medical evidence. The rules went into effect on March 27, 2017, and therefore, apply to the instant case. Under the new regulations, the treating physician rule no longer applies. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Therefore, no special deference is given to the treating physician's opinion. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, “[the Commissioner] will articulate in [his] determination or decision how persuasive [he] find[s] all of the medical opinions.” 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The updated regulations also define a “medical opinion” as “a statement from a medical source about what [the claimant] can still do despite [their] impairment(s) and whether [they] have one or more impairment-related limitations or restrictions” in their “ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling or other physical functions . . . ” 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). Thus, a medical opinion must discuss both a claimant's limitations and “what [the claimant] is still capable of doing” despite those limitations. Michael H. v. Saul, 5:20-CV-417(MAD), 2021 WL 2358257, at *6 (N.D.N.Y. June 9, 2021). Relatedly, conclusory statements by a claimant's provider concerning issues reserved to the Commissioner - for instance, whether the claimant is disabled under the Act - are “inherently neither valuable nor persuasive” and will not be analyzed by the ALJ. 20 C.F.R. §§ 404.1520b(c), 416.920b(c).
B. ALJ's Duty to Develop the Record
As a threshold question, the court must determine “[w]hether the ALJ has satisfied [his] duty to develop the record.” Smoker v. Saul, 19-CV-1539 (AT) (JLC), 2020 WL 2212404, at *9 (S.D.N.Y. May 7, 2020). “[I]n light of the ‘essentially non-adversarial nature of a benefits proceeding[,]'” “[a]n ALJ, unlike a judge at trial, has an affirmative duty to develop the record.” Vega v. Astrue, 08-Civ-1525(LAP)(GWG), 2010 WL 2365851, at *2 (S.D.N.Y. June 10, 2010) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)). “This duty is present even when a claimant is represented by counsel.” Atkinson v. Barnhart, 87 Fed.Appx. 766, 768 (2d Cir. 2004). “Where there are gaps in the administrative record, remand to the Commissioner for further development of the evidence” is appropriate. Sobolewski v. Apfel, 985 F.Supp. 300, 314 (E.D.N.Y. 1997). “[W]here there are no obvious gaps in the administrative record, and where the ALJ already possesses a ‘complete medical history,' the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (citing Perez v. Chater, 77 F.3d 41, 48 (2d. Cir. 1996)); see also Pellam v. Astrue, 508 Fed.Appx. 87, 90 (2d Cir. 2013).
Here, the Court finds that there are no obvious gaps in the record. The record consists of extensive medical records from Plaintiff's chiropractic care, (R. 448-53, 696-743), and other medical specialists (R. 477-79, 489, 755, 756-58, 764-65, 780, 825); numerous MRI and EMG/nerve conduction diagnostic records, (R. 419-20, 525, 528, 626-30); medical opinions from the consultative examiner, Dr. Healy, (R. 745-51), and the state agency medical consultant, Dr. Gandhi, (R. 98-103); testimony by the medical expert, Dr. Todd, (R. 74-87); Plaintiff's testimony, (R. 50-74); and Plaintiff's function report, (R. 316-20). Furthermore, Plaintiff's attorney stated at the hearing that he believed the medical record was complete. (R. 51); see David B. C. v. Comm'r of Soc. Sec., 1:20-CV-01136(FJS)(TWD), 2021 WL 5769567, at *7 (N.D.N.Y. Dec. 6, 2021) (finding that the ALJ fulfilled her duty to develop the record where “Plaintiff did not object to the contents of the record or identify any gaps that need to be filled... In fact, Plaintiffs counsel affirmatively stated the record was complete.”).
Accordingly, I respectfully recommend finding that the ALJ fulfilled his duty to develop the record.
C. The ALJ's RFC Assessment
Plaintiff argues that the ALJ improperly evaluated Plaintiff's RFC as light, which was not supported by the medical evidence and testimony of Plaintiff. (Pl. Br. at 7) The Commissioner maintains that substantial evidence supports the ALJ's credibility and RFC findings. (Comm. Br. at 18-25).
The Court notes that Plaintiff's memorandum is devoid of any developed arguments and simply states in a conclusory fashion its objections to the ALJ's decision.
The RFC is an “individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, at *2). The RFC determination is reserved to the Commissioner. Monroe v. Comm'r of Soc. Sec., 676 Fed.Appx. 5, 8 (2d Cir. 2017). When determining the RFC, the ALJ considers “a claimant's physical abilities, mental abilities, [and] symptomatology, including pain and other limitations that could interfere with work activities on a regular and continuing basis.” Weather v. Astrue, 32 F.Supp.3d 363, 376 (N.D.N.Y. 2012) (citing 20 C.F.R. § 404.1545(a)). Nevertheless, ALJs are not medical professionals. See Heather R. v. Comm'r of Soc. Sec., 1:19-CV-01555(EAW), 2021 WL 671601, at *3 (W.D.N.Y. Feb. 22, 2021). Therefore, the ALJ must refrain “from ‘playing doctor' in the sense that [he] may not substitute his own judgment for competent medical opinion.” Quinto v. Berryhill, 3:17-cv-00024(JCH), 2017 WL 6017931, at *12 (D. Conn. Dec. 1, 2017) (internal quotations omitted). Accordingly, where the record shows that the claimant has more than “minor physical impairments,” Jaeger-Feathers v. Berryhill, 1:17-CV-06350(JJM), 2019 WL 666949, at *4 (W.D.N.Y. Feb. 19, 2019), an ALJ is not qualified “to assess residual functional capacity on the basis of bare medical findings,” Kinslow v. Colvin, 5:12-cv-1541(GLS/ESH), 2014 WL 788793, at *5 (N.D.N.Y. Feb. 24, 2014).
For the reasons set forth herein, I respectfully recommend finding that the ALJ's determination of a light RFC with the specified limitations was supported by substantial evidence in the record.
1. Medical Records and Opinions
The ALJ did not “ignore” the treating physicians' medical reports and records, as Plaintiff suggests, (Pl. Br. at 7), but rather thoroughly analyzed them in reaching the RFC.
The medical records and diagnostic imaging in the record support the ALJ's RFC of light work with certain additional limitations. The ALJ acknowledged that Plaintiff was diagnosed with a lumbar spine strain/sprain with disc herniations and neuropathy in March of 2015; that he was found to have sensory peripheral neuropathy affecting both lower extremities; that Plaintiff's chiropractor noted his decreased lumbar range of motion; that MRI imaging revealed bulging, disc herniation, moderate neural foraminal and spinal stenosis, as well as nerve impingement; and that physical examinations revealed positive straight leg raising tests. (R. 37). However, she also noted that an EMG was negative for lumbar radiculopathy. (Id.). She also thoroughly evaluated Dr. Healy's June 2018 examination, including its normal findings such as normal stride, lack of need for assistive devices, ability to fully squat, intact heel and toe walk, and negative straight leg raise testing bilaterally. (R. 38). The ALJ cited to Plaintiff's visits to a vein restoration specialist, where he reported significant improvement in his symptoms with the use of compression stockings and was found not to have significant evidence of venous insufficiency. (Id.). Finally, the ALJ noted Plaintiff's history of multiple trigger finger release surgeries on both hands and his diagnosis of carpal tunnel syndrome, which he balanced against Dr. Healy's examination that revealed full range of motion in Plaintiff's wrists and 5/5 grip strength, as well as Plaintiff's report that he could write and button. (Id.). Thus, in formulating the RFC, the ALJ extensively evaluated and appropriately incorporated the medical and diagnostic records.
The ALJ also properly evaluated the opinions of Drs. Healy, Gandhi, Todd, and Senzamici in reaching the RFC. She gave sufficient reasons to explain why she found Dr. Senzamici's opinion and its “significant limitations” “unpersuasive,” noting that it was inconsistent with the doctor's own standard chiropractic treatment of Plaintiff, as well as Plaintiff's very limited treatment, his wide-ranging activities of daily living, and Dr. Healy's observation of 5/5 grip strength in both hands. (R. 40). Though Dr. Senzamici's opinion conflicts with aspects of the other medical opinions, “[i]t is for the SSA, and not this court, to weigh the conflicting evidence in the record.” Schaal, 134 F.3d at 504.
The ALJ also appropriately determined that the opinion of Dr. Gandhi, the state agency medical adviser, was “partially persuasive,” acknowledging that he is a non-examining, nontreating source and his opinion was not completely supported by objective evidence. (R. 40). Because State agency physicians and disability examiners are qualified experts in the evaluation of disability claims, an ALJ may properly consider their analysis of a claimant's functional requirements when they are consistent with the record as a whole. See Marshall v. Astrue, No. 1:11-722, 2012 WL 5866077, at *7 n.10 (N.D.N.Y. Oct. 18, 2012), report and recommendation adopted, 2012 WL 5866516 (N.D.N.Y. Nov. 19, 2012); see also Wells v. Comm'r of Soc. Sec., 338 Fed.Appx. 64, 66 (2d Cir. 2009) (summary order). Here, the ALJ noted that Dr. Gandhi's limitation to light work “is consistent with [Plaintiff's] diagnoses of degenerative disc disease and peripheral neuropathy of the lower extremities, balanced against his very conservative treatment and his activities of daily living.” (R. 40). The ALJ then incorporated into the RFC Dr. Gandhi's limitations to light work and frequently climbing ramps and stairs, and included even more restrictive limitations to Plaintiff's ability to crouch, crawl, and kneel (occasionally rather than frequently) as well as climb ladders, ropes, and scaffolds (never rather than occasionally). (R. 40). She also discounted his opinion to the extent that Dr. Gandhi did not provide for “any manipulative limitations to account for [Plaintiff's] carpal tunnel syndrome and history of trigger finger surgeries.” (Id.). As such, the ALJ reasonably found Dr. Gandhi's opinion partially persuasive.
The ALJ also reasonably incorporated Dr. Healy's opinion as consultative examiner into the RFC, finding it “generally persuasive” and “persuasive overall.” (R. 40). It is “well-settled” that a one-time opinion, like that of a consultative examiner, “may be given great weight and may constitute substantial evidence to support a decision.” Oleske v. Berryhill, 18-CV-74(JLS), 2020 WL 1643860, at *4 (W.D.N.Y. Apr. 2, 2020); see also Poole v. Saul, 462 F.Supp.3d 137, 156 (D. Conn. 2020). In finding Dr. Healy's opinion persuasive, the ALJ appropriately noted that it was supported by Dr. Healy's own examination of Plaintiff, “which showed decreased range of motion of the lumbar spine, normal stride, full squat, no need for any assistive devices for ambulation, 4/5 strength in the lower extremities, and full use of the hands.. .[and] is generally consistent with [Plaintiff's] very routine treatment and his activities of daily living.” (R. 40). Importantly, Dr. Healy's determination that Plaintiff had mild and moderate limitations can support an RFC for light work. See, e.g., White v. Berryhill, 753 Fed.Appx. 80, 82 (2d Cir. 2019) (Moderate limitations in standing, sitting, and performing other activities did not indicate that a reasonable factfinder would have to conclude that Plaintiff lacked the ability to perform light work.); see also Gurney v. Colvin, No. 14-CV-688S, 2016 WL 805405, at *3 (W.D.N.Y. Mar. 2, 2016) (“[M]oderate limitations.. .are frequently found to be consistent with an RFC for a full range of light work.”). As such, the ALJ's evaluation of Dr. Healy's opinion is supported by substantial evidence.
The ALJ also appropriately found Dr. Todd's opinion as the impartial medical expert to be “partially persuasive.” (R. 40-41). The ALJ adequately reasoned that Dr. Todd's limitation to light work duties was consistent with his familiarity with the Social Security disability laws and his review of the entire record, as well as Plaintiff's activities of daily living and need for only very conservative treatment. (R. 41). However, the ALJ noted that Dr. Todd's opinion lacked any manipulative limitations, which she chose to include in the RFC given Plaintiff's history of trigger finger surgeries and his carpal tunnel syndrome diagnosis. (R. 41). Therefore, the ALJ properly incorporated Dr. Todd's opinion into her RFC determination.
Though the ALJ's RFC differed in certain ways from the opinions of Dr. Healy, Dr. Gandhi, and Dr. Todd, the Commissioner is correct that the RFC need not “perfectly correspond” with any particular medical opinion, as long as the RFC is “consistent with the record as a whole.” See Matta v. Astrue, 508 Fed.Appx. 53, 56 (2d Cir. 2013) (summary order). An ALJ may decline to accept some conclusions of a medical opinion when they are inconsistent with the rest of the record. See Pellam, 508 Fed.Appx. at 89-90; Jackson v. Berryhill, No. 17-CV-6268(FPG), 2018 WL 3306193, at *7 (W.D.N.Y. July 5, 2018). “[T]he absence of an express rationale” for accepting some conclusions and declining others “does not prevent [the Court] from upholding the ALJ's determination . . . [if] portions of the ALJ's decision and the evidence before him indicate that his conclusion was supported by substantial evidence.” Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982). Here, for the reasons described above, the ALJ adequately explained the basis for her decisions in formulating the RFC, and though it may not “perfectly correspond” with a particular medical opinion, it is consistent with the evidence in the record.
Importantly, the ALJ included greater limitations in her RFC than Drs. Gandhi or Todd provided for, incorporating a limitation to frequent use of the hands to account for Plaintiff's carpal tunnel syndrome and past trigger finger surgeries, and including additional limitations beyond Dr. Todd's opinion that Plaintiff could perform the full range of light work. (R. 36). Having considered Plaintiff's physical examinations, activities of daily living, and conservative treatment, the ALJ appropriately determined that Plaintiff's impairments limit him to light work “with the need to avoid postural and manipulative movements that would exacerbate his pain,” and acknowledged that his pain would cause him to be off task 5% of the workday. (R. 41).
2. Plaintiff's Subjective Statements in his Testimony
Though Plaintiff suggests that the ALJ “ignored” his testimony, (Pl. Br. at 7), the ALJ properly considered Plaintiff's subjective statements in reaching the RFC. “It is the function of the Commissioner... to appraise the credibility of witnesses, including the claimant..,[A]n ALJ is not required to accept the claimant's subjective complaints without question; he may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record.” Martes v. Comm'r of Soc. Sec., 344 F.Supp.3d 750, 762-63 (S.D.N.Y. 2018) (internal quotations omitted). The regulations state that the Commissioner will “consider all of the available evidence, including [the claimant's] medical history, the medical signs and laboratory findings, and statements about how [his or her] symptoms affect [him or her].” 20 C.F.R. §§ 404.1529(a). However, the Commissioner “will not reject [a claimant's] statements about the intensity and persistence of [his or her] pain or other symptoms or about the effect [his or her] symptoms have on [his or her] ability to work solely because the available objective medical evidence does not substantiate [his or her] statements.” 20 C.F.R. §§ 404.1529(c)(2). “[A]n ALJ is not required to explicitly address each and every statement made in the record that might implicate his evaluation of the claimant's credibility as long as the evidence of record permits the court to glean the rationale of an ALJ's decision.” Morales v. Berryhill, 484 F.Supp.3d 130, 151 (S.D.N.Y. 2020) (internal quotations omitted).
Here, the ALJ explicitly states that she had an obligation to, and did, consider Plaintiff's “statements about the intensity, persistence, and limiting effects of symptoms.” (R. 39). She properly pointed to inconsistencies between Plaintiff's allegations regarding his ability to work and the evidence in the record, and gave specific reasons for not giving deference to Plaintiff's allegations. See Urena v. Comm'r of Soc. Sec., 379 F.Supp.3d 271, 287-88 (S.D.N.Y. 2019), appeal dismissed (Nov. 7, 2019) (concluding that the ALJ properly considered and discounted Plaintiff's testimony regarding her ability to work due to inconsistencies between her allegations and the record). The ALJ stated:
Despite [Plaintiff's] allegations, I note that he is capable of performing a wide and varied range of activities of daily living, including going golfing once a month, going to the casino, going to restaurants, driving, and visiting his mother's nursing home daily... Although his doctors referred him for physical therapy and pain management, he was non-compliant with this advice and instead chose only to seek chiropractic care. He testified at [the] hearing that he takes Aleve once or twice a week for pain, but otherwise receives no treatment. Despite his history of hand surgeries, he could tie and button at the consultative examination, and had 5/5 grip strength.. .He reports that he uses a computer frequently. Each of these factors suggests that [Plaintiff's] symptoms do not limit his activities to the extent alleged.(R. 39). In making this analysis, the ALJ considered the objective medical evidence, Plaintiff's treatment, the medical opinions, and Plaintiff's own testimony. (R. 35-41); see Martes, 344 F.Supp.3d at 763. Further, the ALJ's analysis conformed to Rule 16-3p: she noted that Plaintiff's “statements concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision,” (R. 37), and then “devoted several pages of analysis to provide [her] reasoning as to [Plaintiff's] actual limitations, which included the ALJ's discussion of the opinions of treating and non-treating sources, as well as [Plaintiff's] activities of daily living and hearing testimony.” Morales, 484 F.Supp.3d at 150 (“Given the detailed analysis performed by the ALJ, we cannot agree that his analysis was ‘conclusory' in any way.”); Hutchings v. Berryhill, No. 18-Civ-1921(PAE)(KHP), 2019 WL 5722478, at *15 (S.D.N.Y. June 28, 2019), report and recommendation adopted, 2019 WL 5722009 (S.D.N.Y. July 16, 2019) (“[I]t is clear to this Court that the ALJ did not ignore Plaintiffs subjective complaints when formulating her opinion, but merely discounted their veracity in light of medical and other evidence in the record.”). Consequently, I respectfully recommend finding that in formulating the RFC, the ALJ did not ignore Plaintiff's subjective statements.
Further, the ALJ did not err by considering Plaintiff's activities of daily living, like golfing, visiting the casino, going to restaurants, and driving, in evaluating Plaintiff's subjective statements and in formulating the RFC. See Messina v. Astrue, No. 09-CV-2509(SAS), 2009 WL 4930811, at *6 (S.D.N.Y. Dec. 21, 2009) (“The ALJ's considerations of relevant evidence, including .. [Plaintiff's] daily activities.. .provide sufficient support of his RFC determination.”). The ALJ also properly considered Plaintiff's non-adherence to treatment suggestions, like physical therapy and pain management, and his conservative treatment of chiropractic care and taking Aleve. See Taylor v. Chater, 94-CV-5197(JSM), 1995 WL 694466, at *6 (S.D.N.Y. Nov. 22, 1995) (An ALJ may consider a plaintiff's decision to avoid treatment and discontinue physical therapy when evaluating a plaintiff's allegations of disabling pain.).
Overall, Plaintiff appears to disagree with how the ALJ weighed the evidence, “but the deferential standard of review prevents us from reweighing it.” Krull v. Colvin, 669 Fed.Appx. 31, 32 (2d Cir. 2016). Accordingly, I respectfully recommend finding that there is substantial evidence in the record to support the ALJ's RFC determination.
D. ALJ's Determination that Plaintiff's Impairments Do Not Meet or Equal the Requirements of a Listing
Plaintiff argues that the ALJ failed to adequately explain why the Plaintiff did not meet or equal the requirements of Listings 1:15, for disorders of the skeletal spine resulting in compromise of a nerve root(s), and 1:21, for soft tissue injury or abnormality under continuing surgical management. (Pl. Br. at 7-11). The Commissioner responds that substantial evidence supports the ALJ's conclusion that Plaintiff's impairments do not meet or equal the requirements of a listing. (Comm'r Br. at 25-28).
“Where the claimant's symptoms, as described in the medical evidence, appear to match those described in the Listings, the ALJ must provide an explanation as to why the claimant failed to meet or equal the Listings. If the ALJ fails to do so, however, the court may look to other portions of the ALJ's decision and to clearly credible evidence in finding that his determination was supported by substantial evidence.” Figueroa v. Comm'r of Soc. Sec., 19-CV-6472(MWP), 2020 WL 2393308, at *5 (W.D.N.Y. May 12, 2020) (internal quotations omitted). “It is Plaintiff's burden to demonstrate that his disability meets all of the specified medical criteria.” Mercado v. Berryhill, 1:15-CV-00282(MAT), 2017 WL 6275726, at *3 (W.D.N.Y. Dec. 11, 2017) (internal quotations omitted).
Here, the ALJ stated in her decision that she considered whether the claimant meets or equals any listed impairment, with specific focus on the listings in section 1.00 and 11.00 and with explicit analysis of listings 1.04 and 11.14. (R. 35). She concluded that “[n]o treating or examining physician has proffered findings that are equivalent in severity to the criteria of these or any listed impairment.” (Id.).
Importantly, the listings Plaintiff cite in support of his argument, 1.15 and 1.21, do not apply because they became effective on April 2, 2021 after the ALJ issued her decision. See Comm. Br. at 26, n.5; 85 FR 78164-01, 2020 WL 7056412. Listing 1.04 applies to Plaintiff's claim and was subsequently revised as Listing 1.15. Id. Plaintiff also does not raise any issues with the ALJ's analysis of Listing 11.14. Thus, the relevant issue in this case is whether the ALJ adequately explained why Plaintiff did not meet the requirements in Listing 1.04.
As to Listing 1.04, the ALJ determined that Plaintiff does not meet the requirements of this listing, but offered little analysis and simply restated the listing's definition. (R. 35). Disorders of spine are defined in the regulations as follows:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine); or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.20 C.F.R. Part 404, subpart P, Appendix 1, § 1.04.
Despite the ALJ's lack of analysis, I respectfully recommend finding that the ALJ correctly concluded that Plaintiff's impairments also do not meet the criteria of the listing for disorders of the spine. There is no evidence in the record that Plaintiff suffered from nerve root compression, spinal arachnoiditis or lumbar spinal stenosis that resulted in an inability to ambulate effectively. Furthermore, Plaintiff does not even point to any such evidence. Though MRIs of Plaintiff's lumbar spine from 2015 and 2017 state that impingement of nerve roots “may occur” or that the nerve roots “may” be impinged, (R. 419-20, 525), Dr. Todd, whose testimony the ALJ found partially persuasive, characterized this as “possible impingement” and explained that “the word ‘possible' [wa]s the operative word” because other neurologic exams in the record from the relevant time period were normal and indicated no impairment in Plaintiff's ability to ambulate. (R. 78, 82). Further, Dr. Healy opined that Plaintiff did not have muscle atrophy, (R. 747), Plaintiff denied muscle weakness to Dr. Fleisher, (R. 757), and the record does not demonstrate sensory loss. These are all necessary to meet the requirements in the definition of disorders of the spine set forth in the regulations. Rather, the record reflects that Plaintiff had muscle strength of 4/5 or 5/5 in his arms and legs, 5/5 grip strength, intact hand and finger dexterity, and normal muscle tone, (R. 448-53, 460, 702, 747, 757), as well as no sensory deficits and intact sensation, (R. 396, 399, 402, 405, 408, 411, 414, 417, 747). Further, Plaintiff did not have consistent positive straight-leg raising tests; rather it was only positive on certain occasions, (R. 522, 702, 706-09, 712-13, 722, 725), and negative on others, (R. 396, 399, 402, 405, 408, 411, 414, 417, 460, 747). However, to meet the requirements for nerve root compression, Plaintiff needed to be experiencing all the listing criteria simultaneously for a continuous period of at least twelve months, which Plaintiff has not established. See AR 15-1(4), 2015 WL 5564523, at *57420 (“[W]hen the listing criteria are scattered over time, wax and wane, or are present on one examination but absent on another, the individual's nerve root compression would not rise to the level of severity required by listing 1.04A.”). As for lumbar spinal stenosis, though Plaintiff's lumbar spine MRIs from 2015 and 2017 revealed mild, moderate, and severe stenosis in various levels of the spine, (R. 419-20, 525), there is no evidence in the record that this resulted in an inability to ambulate effectively, as defined in the regulations. See 20 C.F.R. Part 404, subpart P, Appendix 1, §1.00(B)(2)(b). Though Plaintiff reported difficulty with excessive walking, (R. 59, 73, 745-46), records reveal Plaintiff's normal stride, intact heel and toe walk, and his lack of reliance on any assistive device to walk. (R. 71, 460, 746).
Accordingly, I respectfully recommend finding that the ALJ properly concluded that Plaintiff's impairments do not meet the listing for disorders of the spine.
E. Case Reassignment to a Different ALJ than the One Who Presided over the Hearing
Plaintiff argues that because ALJ Barry conducted the hearing but did not decide the case, the Commissioner violated HALLEX and his due process rights. (Pl. Br. at 12-14). The Commissioner responds that the case was properly reassigned pursuant to HALLEX and that Plaintiff failed to show that the reassignment, or ALJ Wexler's failure to hold an additional hearing, violated any law or regulation or his due process rights. (Comm. Br. at 28-30).
HALLEX I-2-1-55(F) provides: “A HOCALJ or other management ALJ may reassign a case to a different ALJ when it is necessary to ensure that the claimant will have his or her case heard or decided in a timely manner.” I-2-1-55(F), 1993 WL 642977. If an ALJ has already held a hearing but has not approved a draft decision, this reassignment must occur with the concurrence of the Regional Chief Administrative Law Judge (“RCALJ”) or the OCALJ, based on “whether the delay in issuing a decision constitutes a detriment to the public.” Id. The reassigned ALJ will review all the evidence in the record, including the audio recording of the hearing, and if she is unable to issue a fully favorable decision based on this review, “will assess whether another hearing is necessary.” Id.
Here, as the Commissioner points out, ALJ Wexler's decision states that the case was reassigned to her pursuant to HALLEX I-2-I-55(F). (R. 32). She indicates that she reviewed all the evidence in the record, including the recording of the hearing. (Id.). She also determined that another hearing is not necessary because “no additional testimony is needed to fully evaluate the claimant's allegations of pain and other symptoms.” (Id.). In doing so, the ALJ followed HALLEX guidelines. Without providing any support, Plaintiff claims that “proper procedure was not followed” and the case was transferred without the approval of the Hearing Office Chief ALJ (“HOCALJ”) or the Office of Chief ALJ (“OCALJ”) in White Plains. (Pl. Br. at 14). This bare statement, without any evidence, is insufficient for the Court to determine that HALLEX guidelines were not followed.
Assuming, arguendo, that the reassignment of this case to ALJ Wexler violated HALLEX, “HALLEX does not bind an ALJ... [because] HALLEX is simply a set of internal guidelines for the SSA, not regulations promulgated by the Commissioner, and therefore... a failure to follow HALLEX does not necessarily constitute legal error requiring remand.” Salati v. Saul, 415 F.Supp.3d 433, 449 (S.D.N.Y. 2019) (internal quotations omitted) (collecting cases); see also Jones-Reid v. Astrue, 934 F.Supp.2d 381, 407-08 (D. Conn. 2012), aff'd, 515 Fed.Appx. 32 (2d Cir. 2013) (“internal agency documents, such as HALLEX, do not to carry the force of law and are not binding on the SSA.. .Therefore, they do not create judicially enforceable duties, and we will not review allegations of noncompliance with their provisions.”).
Plaintiff also contends that the case reassignment violated his due process rights, without providing any support for this proposition. (Pl. Br. at 12). The Commissioner urges the Court to consider this argument waived because Plaintiff has not explained or cited to any authority in support of his argument. (Comm'r Br. at 30). Courts have deemed arguments waived and have declined to address them where a party does not cite to any authority in support and does not develop its argument. See Lewis v. Berryhill, No. 16 Civ. 1091, 2018 WL 1377303 at *9 n.7; see also Johnson v. Panetta, 953 F.Supp.2d 244, 250 (D.D.C. 2013) (“It is not the obligation of this Court to research and construct the legal arguments available to the parties.. ..To the contrary, perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are deemed waived.”). Therefore, I respectfully recommend finding that Plaintiff waived his due process argument.
On the other hand, if the court chooses not to waive this argument, I respectfully recommend finding that Plaintiff's due process rights were not violated here, given that he was provided with a full and fair hearing at which he was represented by counsel, had the opportunity to testify and cross-examine experts, was questioned thoroughly by both the ALJ and his own attorney, and was allowed to present evidence. Yancey v. Apfel, 145 F.3d 106, 112 (2d Cir. 1998) (“Generally, due process requires that a social security disability hearing must be full and fair.”); see also Pokluda v. Colvin, 2014 WL 1679801, at *3 (N.D.N.Y. April 28, 2014). ALJ Wexler considered all of Plaintiff's medical records, and considered and credited opinions expressed by Plaintiff's treating doctors, including testimony from medical and vocational experts, a consultative examiner, and a state agency medical consultant. See Pokluda, 2014 WL 1679801 at *3. Based on a review of this evidence, ALJ Wexler determined that another hearing was not necessary, (R. 32), and Plaintiff does not indicate what evidence he would have offered had another hearing been conducted or how he was prejudiced by the lack of another hearing. Further, in a similar case where one ALJ held earlier hearings and then another ALJ based his decision in part on evidence from those earlier hearings, the court held this was not a violation of due process. Delgrosso v. Colvin, 2015 WL 3915944, at *6 (N.D.N.Y. June 25, 2015) (“It is absurd to argue that ALJ Gale should have retraced the evidence-gathering exercise already accomplished by ALJ Ryan or otherwise ignored that evidence.”).
Accordingly, I respectfully recommend finding that the case's reassignment to ALJ Wexler did not violate HALLEX or Plaintiff's due process rights, and thus remand is not warranted on this ground.
III. CONCLUSION
For the reasons set forth herein, I respectfully recommend granting the Commissioner's cross-motion, (Docket No. 22), and denying the Plaintiff's motion, (Docket No. 17).
IV. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report and Recommendation to serve and file written objections. See Fed.R.Civ.P. 6(a) and (d) (rules for computing time). A party may respond to another party's objections within fourteen (14) days after being served with a copy. See Fed.R.Civ.P. 72(b)(2). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Vincent L. Briccetti at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at said Courthouse.
Requests for extensions of time to file objections must be made to the Honorable Vincent L. Briccetti and not to the undersigned. Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b), 6(d), 72(b); Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008).