Opinion
21-CV-03993 (MKV)(SN)
08-31-2022
JOHNNY GUAYLUPO, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
SARAH NETBURN UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE MARY KAY VYSKOCIL:
Johnny Guaylupo (“Plaintiff”) seeks judicial review of the determination of the Commissioner of Social Security (the “Commissioner”) that he was not entitled to Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. See 42 U.S.C. § 405(g). The parties cross-moved for judgment on the pleadings. I recommend that the Plaintiff's motion be granted, and the Commissioner's motion be denied.
BACKGROUND
I. Administrative Proceedings
Plaintiff applied for DIB on October 18, 2019, alleging disability beginning on July 24, 2018, as a result of severe lower back pain, severe right and left knee pain, asthma, and a prior operation on his left arm. ECF No. 13, Administrative Record (“R.”) 74-76. His application was denied on January 28, 2020, and again upon reconsideration on June 9, 2020. Id. at 86-87, 102. Plaintiff requested a hearing before an administrative law judge (“ALJ”) to review his case and appeared remotely for a hearing before ALJ Angela Banks on October 28, 2020. Id. at 29, 129 30. ALJ Banks issued a decision denying the claim on January 13, 2021. Id. at 22. On March 2, 2021, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision final. Id. at 1-4.
II. Plaintiff's Federal Case
Plaintiff filed his complaint on May 5, 2021, seeking review of the ALJ's decision. See ECF No. 1, Complaint (“Compl.”). He requests that the Court set aside the decision and grant him DIB or, alternatively, remand the case for further proceedings. Id. at 2. The Commissioner answered by filing the administrative record, and the parties cross-moved for judgment on the pleadings. See ECF Nos. 13, 16, 20. Plaintiff argues that the ALJ did not correctly weigh the opinion of psychiatric consultative examiner Dr. Seth Sebold and failed to consider his mental impairments in her RFC determination, leading her to mistakenly conclude that Plaintiff could perform his prior work as a courier. See ECF No. 17, Plaintiff's Memorandum of Law (“Pl. Mem.”) 8-14. The Commissioner counters that substantial evidence supported the ALJ's RFC determination, that she properly weighed Dr. Sebold's medical opinion, and regardless Dr. Sebold's opinion did not require the ALJ to find that Plaintiff's mental impairments prevented him from performing his past work. ECF No. 21, Defendant's Memorandum of Law (“Def. Mem.”) 12-20.
III. Factual Background
Plaintiff does not contest the ALJ's determination regarding his physical limitations. Rather, he argues that her RFC determination was incomplete because she failed to include mental limitations and improperly evaluated the opinion of consultative examiner Dr. Seth Sebold. Pl. Mem. 8. As a result, this factual summary focuses on evidence of Plaintiff's mental impairments.
A. Non-Medical Evidence
At the hearing, Plaintiff testified that he was 57 years old and had completed the 9th Grade. R. 32. He previously worked as a delivery worker for approximately 20 years. Id. at 34. He left the position after injuring his back while working. Id. at 35. In response to questions regarding any mental impairments, including depression and anxiety, Plaintiff testified that he fell from a bus as a child and as a result struggles to retain information. Id. at 39-40. Plaintiff's answers to certain questions posed by his representative were unclear, prompting the ALJ to implore Plaintiff “to focus on the question that your representative is asking you.” Id. at 39. When asked about his living circumstances, Plaintiff testified that he lives with his mother and that “[i]t's actually a problem. In fact, she's the one that helps with me everything and my sister.” Id. at 43.
Vocational expert Joseph Atkinson also testified. Id., at 44-46. Atkinson testified that Plaintiff's prior work was as a courier (DOT 230.663-010), which is light work with a Specific Vocational Preparation (“SVP) level of 2 (meaning, requires up to one month of training to learn the job), but was performed by Plaintiff as heavy work. The ALJ posed a hypothetical to Atkinson of an individual with Plaintiff's age, education, and past work and the residual functional capacity (RFC) to perform light work with certain physical and environmental limitations. Atkinson testified that that individual could perform Plaintiff's prior work as generally performed (meaning, as light work). Under the same conditions, that individual could not perform Plaintiff's prior job if he were to be off-task more than 20 percent of the time in an eight-hour workday. Id. The ALJ did not interpose any limitations related to Plaintiff's mental health impairments.
B. Treating Mental Health Evidence
1. Prashanth Mannam, M.D.
On May 16, 2020, Plaintiff visited Dr. Prashanth Mannam for a physical exam and a COVID antibody test. R. 564. Dr. Mannam administered the Patient Health Questionnaire-9 (PHQ-9) to screen for depression. Id. Plaintiff reported trouble falling or staying asleep, or sleeping too much, feeling tired or having little energy, and having trouble concentrating nearly every day. Id. He also reported feeling down, depressed, or hopeless, feeling bad about himself, moving slowly or alternately being fidgety or restless, and thoughts that he would be better off dead, several days a week. Id. His total score was 13 and he was diagnosed with moderate depression. Id. at 564. On July 1, 2020, Dr. Mannam referred him to mental health treatment. Id. at 582.
2. Montefiore Medical Records
Plaintiff enrolled in mental health treatment at Montefiore Medical Center on July 14, 2020, and met with LCSW Karen J. Smaltz for the first time on July 28, 2020. R. 790-91. Plaintiff reported depression, frustration with chronic pain, hyperactive feelings, and memory problems. Id. at 791-92. Smaltz noted that he sometimes “derail[ed]” in conversations. Id. at 792. Plaintiff explained that while he had experienced symptoms of depression since the 1980s, he was now depressed “all the time” and was plagued by sleep problems, feelings of shame, sadness, somatic pre-occupation, and irritable moods. Id. at 792. In his mental status examination, Smaltz described Plaintiff's attitude and behavior as “cooperative” and “appropriate,” his insight and judgment as “fair,” and his memory and attention as “intact.” Id. at 797. Plaintiff did not report any hallucinations, delusions, or suicidal or homicidal ideation. Id. But Smaltz described his fund of knowledge as “impaired” and his intelligence as “below average.” Id. Plaintiff scored 21 on the PHQ-9, a result indicative of severe depression. Id. at 797-98. Smaltz diagnosed Plaintiff with “severe major depression, opioid-related disorders, tobacco abuse in remission, history of psychoactive substance use disorder, pain aggravated by anxiety, cognitive complaints, sleep concern, [and a] learning disability.” Id. at 791.
On August 6, 2020, Plaintiff met with Nurse Practitioner Elisabeth J. Maher for a psychiatric evaluation. Id. at 806. Plaintiff's reported symptoms were consistent with those shared at his visit with Smaltz. Id. He also reported feelings of paranoia and difficulty concentrating. Id. Maher described his attitude as cooperative, his speech as normal, his mood as irritable, his thought process as coherent, his cognition, memory, concentration, attention, and fund of knowledge as intact, and his intelligence as average, although she noted some paranoid thoughts. Id. at 809-10. Maher noted that she would follow up with Plaintiff's other medical providers before prescribing medication. Id. at 810.
Plaintiff met with Smaltz again the next day. Id. at 812. Smaltz wrote that Plaintiff was forthcoming and calm. Id. His mental status examination was unremarkable. Id. at 816. The session focused on healthy living, methods to improve memory, and relaxation. Id. at 812. Plaintiff missed his subsequent session with Smaltz on August 17, 2020, because he was on his way to another doctor's appointment. Id. at 819.
Plaintiff attended a follow-up appointment with Nurse Practitioner Maher on August 19, 2020. Id. at 820. He reported feeling very anxious and overwhelmed, and explained that he was having problems with his other medical providers. Id. He denied suicidal or homicidal ideation, delusions, nightmares, concentration problems, flashbacks, mania, or changes to appetite. Id. at 823-24. Maher described his attitude as “superficially cooperative,” his speech as “rapid and talkative,” and his mood as “anxious.” Id. at 823. The mental status exam was otherwise unremarkable. Id. Maher prescribed 50 mg of Zoloft daily. Id. at 824.
Plaintiff met with Maher again on September 10, 2020. Id. at 826. Although he reported some improvement, he also continued to experience depression and anxiety. Id. Plaintiff was not taking Ativan prescribed by another provider correctly and was not taking Zoloft at all. Id. Maher reported that Plaintiff was “superficially cooperative” but was not “treatment compliant and was resistant to psychoeducation regarding treatment and medication management.” Id. at 829.
Plaintiff's next appointment with Smaltz was on September 16, 2020. Id. at 832. Smaltz wrote that Plaintiff complained: “I am not feeling well. I am in pain so I can't talk long. Why do people call me? Who was [it] that call me? Why do they have to ask so many questions? It makes me nervous.” Id. Smaltz reminded him why he enrolled in treatment and the purpose of therapy. Id. She noted that Plaintiff had limited insight and cognitive issues. Id. at 833. Plaintiff's mental status examination was mixed. Smaltz described his attitude as cooperative, his behavior and affect as appropriate, and his mood as calm, but also assessed his cognition, short term memory, and fund of knowledge as impaired, and his insight as poor. Id. at 836-37.
At a follow-up appointment on October 7, 2020, Plaintiff told Smaltz that he wanted to terminate treatment and withdraw from the clinic. Id. at 839. He told her he was “feeling better.” Id. “You helped me,” he continued. “I just want to focus on my pain management and physical therapy. I don't want to take the medications. I am on too much medication.” Id. Plaintiff denied suicidal or homicidal ideation and psychosis, and scored 3 on the PHQ-9, indicating minimal depression. Id. at 843. Smaltz concluded that Plaintiff was at a low risk of dangerousness and agreed to close his case. Id. at 845.
C. Consultative Medical Opinion Evidence
1. Seth Sebold, Ph.D.
On December 7, 2019, Plaintiff saw Dr. Seth Sebold for a psychiatric evaluation. R. 378. Dr. Sebold noted that Plaintiff “struggled mildly at times to provide information” and was assisted by his sister, who had accompanied him to the appointment. Id. at 380. Plaintiff completed the 9th grade and had received special education services for a learning disability. Id. at 378. He reported one previous psychiatric hospitalization for stress and other related problems in 2003 while he was incarcerated at Riker's Island. Id. He told Dr. Sebold that he woke four to five times a night and had heart palpitations related to anxiety. Id. at 379. Plaintiff described feelings of irritability, worthlessness, and frustration. Id. Although he stated that he previously experienced hallucinations, he denied any suicidal or homicidal ideation. Id. Dr. Sebold also noted a history of short and long-term memory and concentration difficulties, possibly related to a head injury as a child. Id. Plaintiff acknowledged using heroin until 2000 and was receiving methadone maintenance treatment. Id.
Dr. Sebold described Plaintiff as appropriately dressed, well-groomed, and cooperative with fair social skills. Id. at 380. Plaintiff's thought processes appeared “coherent and goal-directed” with no evidence of hallucinations, delusions, or paranoia, although Dr. Sebold noted that Plaintiff struggled mildly to provide information and required some assistance from his sister. Id. Dr. Sebold evaluated Plaintiff's expressive and receptive language as mildly underdeveloped, and his attention and concentration and recent and remote memory as mildly impaired. Id. at 380-81. He also observed that Plaintiff struggled to perform basic mental math calculations. Id. at 380. Although he concluded that Plaintiffs insight and judgment were good, Dr. Sebold estimated his intellectual functioning as borderline to impaired. Id. at 381. He noted that Plaintiff required assistance with money management and had difficulty navigating public transportation. Id.
Dr. Sebold assessed no limitations in: (1) understanding, remembering, or applying simple directions and instructions, (2) sustaining an ordinary routine and regular attendance at work, and (3) maintaining personal hygiene and appropriate attire. Id. at 381-82. He assessed mild limitations in: (1) awareness of normal hazards and taking appropriate precautions, and (2) interacting adequately with supervisors, co-workers and the public. Id. He concluded that Plaintiff had mild to moderate limitations in using reasoning and judgment to make work-related decisions, and moderate limitations in regulating emotions, controlling behavior and maintaining wellbeing. Id. Lastly, Dr. Sebold assessed moderate to marked limitations in understanding, remembering, or applying complex directions and instructions, and sustaining concentration and performing a task at a consistent pace. Id.
Dr. Sebold wrote that “[t]he results of the present evaluation appear to be consistent with psychiatric and cognitive problems, and these may significantly interfere with the claimant's ability to function on a daily basis.” Id. at 382. He diagnosed Plaintiff with unspecified depressive disorder and recommended psychiatric intervention and a neuropsychological evaluation to rule out any neurocognitive disorders. Id.
2. Anne Marie Finegan, M.D.
On December 9, 2019, Dr. Anne Marie Finegan performed an internal medical examination of Plaintiff. R. 385. As relevant here, Dr. Finegan observed evidence of impaired judgment, and noted that he required visual cueing for even simple commands and subsequent affirmation to perform those activities. Id. at 390. She did not note any obvious hallucinations or delusions, and Plaintiff denied any suicidal or homicidal ideation. Id. He reported that he had a psychiatrist, but that he had not seen a mental health care provider in more than six months. Id. at 386. His eye contact was “terrible,” and his affect was “flat.” Id. at 390. Dr. Finegan included mood disorder and “rule out cognitive impairment” in her diagnosis, although she deferred to the psychological examiner as to the specific diagnosis and any limitations associated with the condition. Id. at 391.
3. L. Haus PsyD and E. Kamin PhD
On January 21, 2020, Dr. Haus performed a review of Plaintiff's medical records and assessed Plaintiff's limitations in understanding, remembering, or applying information, interacting with others, concentrating, persisting, or maintaining pace, and adapting or managing himself as “mild.” R. 80. Accordingly, he concluded that Plaintiff's mental impairments were non-severe. Id. at 79. On June 8, 2020, Dr. Kamin also performed a records review and reached the same conclusion. Id. at 94-95. Neither of these examiners had Plaintiff's treating mental health records.
IV. The ALJ's Decision
On January 13, 2021, the ALJ denied Plaintiff's application for DIB. R. 12-22. The ALJ determined that Plaintiff met the insured status requirements of sections 216(i) and 223(d) of the Social Security Act and had acquired sufficient quarters of coverage to remain insured through December 31, 2023. Id. at 13. At step one, she found that Plaintiff had not engaged in substantial gainful activity since July 24, 2018, the alleged onset date. Id. at 15.
At step two, she found that Plaintiff's cervical spine and lumbar spine degenerative disc disease, bilateral knee derangement, asthma, and obesity qualified as severe impairments. Id. In contrast, the ALJ concluded that Plaintiff's alleged impairments of right knee status-post gunshot wound, left wrist derangement status-post surgery, seizure disorder, substance use disorders, depressive disorder, and personality disorder were non-severe. Id. As relevant here, the ALJ reasoned that Plaintiff's substance use disorder, depressive disorder and personality disorder, “considered singly and in combination, do not cause more than minimal limitation in [his] ability to perform basic mental work activities.” Id. Applying the paragraph B criteria, she concluded that Plaintiff had only mild limitations in the domains of understanding, remembering or applying information, interacting with others, concentrating, persisting or managing pace, and adapting or managing oneself. Id. at 16. Although she found “persuasive the portions of the opinion of psychiatric consultative examiner Dr. Seth Sebold which are supported by and consistent with the evidence,” id., she noted that his “usage of the terms ‘mild,' ‘moderate,' and ‘marked' are somewhat vague in that they do not specify the actual frequency of the limitations; and his moderate as well as moderate to marked limitations are overly restrictive when considering the medical evidence as a whole,” id. at 17. She stated that Dr. Sebold's remaining limitations were supported by his examination and treatment notes, “which showed mostly minimal to no findings on mental status examinations,” the opinions of Dr. Haus and Dr. Kamin, Plaintiff's “essentially normal non-exertional activities of daily living,” his lack of mental health treatment between 2004 and 2020, the lack of side effects from his medication, and his decision to withdraw from mental health treatment in October 2020. Id.
At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in the applicable regulations. Id.; see 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. The ALJ considered and rejected listings 1.02 in relation to Plaintiff's knee derangement (musculoskeletal disorder), 1.04 regarding his degenerative disc disease (musculoskeletal disorder), and 3.03 (asthma). Id. at 17-18.
The ALJ next found that Plaintiff had the RFC to perform light work, as defined in 20 C.F.R. § 404.1567(b), except he could tolerate no more than occasional exposure to respiratory irritants, could only occasionally balance on uneven terrain, could only occasionally stoop, crouch, kneel, crawl, and climb ramps and stairs, and could never climb ladders, ropes, or scaffolds. Id. at 18. The ALJ did not explicitly consider the evidence regarding Plaintiff's non-severe mental impairments in determining his RFC. Id. at 18-21.
At step four, the ALJ determined that Plaintiff's past work as a courier did not require the performance of work-related activities precluded by his RFC, and he could continue working as a courier. Id. at 21. As such, the ALJ did not move to step five and concluded that Plaintiff had not been under a disability during the applicable period and was not entitled to DIB. Id. at 22.
DISCUSSION
I. Standard of Review
In reviewing a decision of the Commissioner, a court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). An ALJ's determination may be set aside only if it is based upon legal error or it is not supported by substantial evidence. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998)).
“Substantial evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The Commissioner's findings as to any fact supported by substantial evidence are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995); see also Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to support either position, the determination is one to be made by the factfinder.”). Therefore, if sufficient evidence supports the ALJ's final decision, the Court must grant judgment in favor of the Commissioner, even if substantial evidence also supports the plaintiff's position. See Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (“The substantial evidence standard means once an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to conclude otherwise.” (emphasis in original) (citations and internal quotation marks omitted)). Although deferential to an ALJ's findings, a disability determination must be reversed or remanded if it contains legal error or is not supported by “substantial evidence.” See Rosa, 168 F.3d at 77.
II. Definition of Disability
A claimant is disabled under the Act if he demonstrates an “inability 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. §§ 416(i)(1), 423(d)(1)(A). A “physical or mental impairment” is defined as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). A claimant will be found to be disabled only if his “impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . .” Id. § 423(d)(2)(A).
An ALJ must proceed through a five-step process to make a disability determination. See 20 C.F.R. § 404.1520. The steps are followed in order; if it is determined that the claimant is or is not disabled at a step of the evaluation process, the evaluation will not progress to the next step. See id. The Court of Appeals has described the process as follows:
First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a “severe impairment” that significantly limits her physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in 20 C.F.R. pt. 404, subpt. P, app.1....Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform. Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (quoting Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999)).
A claimant bears the burden of proof as to steps one, two, three, and four; the Commissioner bears the burden as to step five. Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013).
III. The ALJ's RFC Determination
“The RFC is ‘the most [a person] can still do despite [their] limitations.'” Latifu v. Comm'r of Soc. Sec., No. 21-cv-884 (KMK)(JCM), 2022 WL 2532193, at *18 (May 4, 2022), report & rec. adopted 2022 WL 3044582 (S.D.N.Y. May 4, 2022) (quoting 20 C.F.R. § 404.1545(a)(1) (2012)). “The claimant's RFC is determined based on all of the relevant medical and other evidence in the record, including the claimant's credible testimony, objective medical evidence, and medical opinions from treating and consulting sources.” Id. (quoting Rivera v. Comm'r of Soc. Sec., 368 F.Supp.3d 626, 640 (S.D.N.Y. 2019)). Therefore, “[e]ven where ‘substantial evidence supports the ALJ's finding that [a claimant's] mental impairment was non-severe, it would still be necessary to remand for further consideration where the ALJ failed to account [for the claimant's] mental limitations when determining [his] RFC.'” Rousey v. Comm'r of Soc. Sec., 285 F.Supp.3d 723, 740-41 (S.D.N.Y. 2018) (quoting Parker-Grose v. Astrue, 462 Fed.Appx. 16, 18 (2d Cir. 2012)) (collecting cases); see also SSR 85-15, 1985 WL 56857 at *6 (Jan. 1, 1985) (“Any impairment-related limitations created by an individual's response to demands of work, however, must be reflected in the RFC assessment.”)
“However, ‘where an ALJ fails to mention non-severe impairments in formulating the RFC, such an error may be considered harmless absent evidence that these impairments contributed to any functional limitations.'” Ferreras-Matos v. Comm'r of Soc. Sec., No. 20-cv-07106 (NSR)(JCM), 2021 WL 7287630, at *15 (Nov. 15, 2021), report & rec. adopted 2022 WL 292921 (S.D.N.Y. Jan. 31, 2022) (quoting Andino v. Saul, No. 1:18-cv-00379 (JJM), 2019 WL 4621878, at *2 (W.D.N.Y. Sept. 24, 2019)).
Despite concluding that Plaintiff's mental impairments of substance use disorder, depressive disorder, and personality disorder were non-severe, the ALJ was still required to account for these impairments when determining Plaintiff's RFC. Her failure to even mention these impairments in her RFC determination is legal error and requires remand. Garcia v. Comm'r of Soc. Sec., No. 20-cv-7539 (PAE)(SLC), 2022 WL 1051134, at *17-18 (Jan. 31, 2022), report & rec. adopted 2022 WL 970566 (S.D.N.Y. Mar. 31, 2022) (collecting cases); Schmidt v. Comm'r of Soc. Sec, No. 20-cv-3594 (KAM), 2022 WL 1540054, at *4 (E.D.N.Y. May 16, 2022). This especially true given that the ALJ found that Plaintiff had mild limitations in understanding, remembering, or applying information, interacting with others, concentrating, persisting, or maintaining pace, and adapting or managing oneself, and such limitations may prevent an individual from performing at an SVP level 2. Courts in this Circuit have found that the ALJ's failure to mention non-severe impairments was not harmless error where the ALJ found at least mild limitations in the areas of mental functioning at step two of the analysis. Amparo v. Comm'r of Soc. Sec., No. 20-cv-10285 (JMF)(SDA), 2022 WL 3084482, at *11 (July 19, 2022), report & rec. adopted 2022 WL 3084380 (S.D.N.Y. Aug. 3, 2022) (collecting cases); Ferreras-Matos, 2021 WL 7287630, at *16.
I therefore recommend that the Court remand this case on the ground that the ALJ failed to properly consider Plaintiff's non-severe mental impairments in determining his RFC.
IV. The ALJ's Consideration of Dr. Sebold's Medical Opinion
A. Legal Standard
Because Plaintiff's DIB application was filed after March 27, 2017, revised regulations guided the ALJ's analysis. See 20 C.F.R. § 404.1520c. When considering medical opinions and prior administrative medical findings under these new regulations, the ALJ is not required to “defer or give any specific evidentiary weight, including controlling weight” to any of those opinions. Id. § 404.1520c(a). Instead, the ALJ evaluates the persuasiveness of an opinion provided by medical sources based on the opinion's “supportability,” its “consistency,” the “relationship” of the medical source and the claimant, the source's “specialization,” and “other factors that tend to support or contradict a medical opinion or prior administrative medical finding.” Id. § 404.1520c(1)-(5).
The new regulations also differ from the previous rules in that the definition of “acceptable medical sources” is expanded. 20 C.F.R. § 404.1502(a).
The most important factors are supportability and consistency; “the more relevant the objective medical evidence and supporting explanations presented by a medical source are to support” their opinion, and the more consistent a medical opinion or prior administrative medical finding is with “the evidence from other medical sources and nonmedical sources” in the claim, the more persuasive the opinion or finding. Id. § 404.1520c(b)(2), (c)(1), (c)(2). The ALJ must address how she considered the supportability and consistency factors but need not discuss the other three. Id. § 404.1520c(b)(2). But where the ALJ finds two or more divergent medical opinions to be equally well-supported and consistent with the record, the ALJ must articulate how she evaluated the three remaining factors. Id. § 404.1520c(b)(3).
“[C]ourts that have been ‘presented with these [new] regulations have concluded that the factors are very similar to the analysis under the old [treating physician] rule.'” Velasquez v. Kijakazi, No. 19-cv-9303 (DF), 2021 WL 4392986, at *20 (S.D.N.Y. Sept. 24, 2021) (citation omitted) (alterations in original); see also Feliz v. Kijakazi, No. 20-cv-9355 (JLC), 2022 WL 2900797, at *9 (S.D.N.Y. July 22, 2022). “[F]ailure to properly consider and apply” supportability and consistency “is grounds for remand.” Prieto v. Comm'r of Soc. Sec., No. 20-cv-3941 (RWL), 2021 WL 3475625, at *9 (S.D.N.Y. Aug. 6, 2021). “An ALJ's failure to apply the correct legal standard constitutes reversible error if that failure might have affected the disposition of the case.” Lopez v. Berryhill, 448 F.Supp.3d 328, 341 (S.D.N.Y. 2020) (citing Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)). The court need not remand the case if the ALJ only committed harmless error, that is, where the “application of the correct legal principles to the record could lead [only to the same] conclusion.” Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (alteration omitted) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).
B. Analysis
Although “an ALJ is not obligated to accept every part of a doctor's opinion,” “[t]he Court cannot conduct meaningful review of the Commissioner's decision where an ALJ's cursory statements and findings obscure the actual reasons that underpin the RFC assessment.” Long v. Berryhill, No. 18-cv-1146 (PKC), 2019 WL 1433077, at *3-4 (E.D.N.Y. Mar. 29, 2019). Here, the ALJ's reasons for rejecting Dr. Sebold's assessment that Plaintiff had moderate limitations in regulating emotions, controlling behavior, and maintaining well-being, and moderate to marked limitations in understanding, remember or applying complex directions and instructions, and sustaining concentration and performing a task at a consistent pace are not adequately explained such that there is “an accurate and logical bridge from the evidence to [her] conclusion.” Id. (quoting Suide v. Astrue, 371 Fed.Appx. 684, 690 (7th Cir. 2010)); see also Chichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (“Remand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.”)
Instead, the ALJ rejected Dr. Sebold's use of the terms moderate and marked because they were “somewhat vague in that they do not specify the actual frequency of the limitations” and “overly restrictive when considering the medical evidence as a whole.” R. 17. This cursory dismissal fails to account for evidence both from Dr. Sebold's examination and from treatment notes that indicate his opinion was well-supported and consistent with the medical record overall.
Although the ALJ acknowledged the Paragraph B criteria for Listing-level mental health impairments in her decision and used the term “mild limitation” in her own assessment, she does not consider whether Dr. Sebold was also relying on the Listing 12.00 five-point scale, which uses these same terms. To the extent the ALJ was rejecting Dr. Sebold's opinion because she did not understand these terms, she had a duty to seek clarification.
Following his examination, Dr. Sebold diagnosed Plaintiff with unspecified depressive disorder. Id. at 382. This diagnosis is consistent with his May 2020 depression screening indicating moderate depression, id. at 564, his July 2020 depression screening indicating severe depression, id. at 797, and his treating provider's diagnosis of severe major depression, id. at 801. Dr. Sebold also noted that Plaintiff's difficulties in carrying out daily activities are “caused by psychiatric symptoms and medical problems, as well as cognitive deficits.” Id. at 382. LCSW Smaltz assessed that Plaintiff sometimes “derail[ed]” in conversation and that his cognition, short term memory, and fund of knowledge were impaired. Id. at 792, 797, 836. Dr. Sebold's opinion about Plaintiff's capacity is also consistent with Plaintiff's hearing testimony that he could not do anything without his mother's help. Dr. Sebold recommended psychiatric intervention and a neuropsychological evaluation to rule out neurocognitive disorders. Although Dr. Finegan deferred to Dr. Sebold's conclusion, she also noted a “definite indication for impaired judgment,” and her diagnosis included “mood disorder” and “rule out cognitive impairment.” Id. at 390-91.
Only the record review examiners concluded that Plaintiff did not have significant mental health limitations. The ALJ concluded that these opinions were “persuasive” because they are “supported by the treatment notes and psychiatric consultative examination.” Id. at 17. But Plaintiff had not started mental health treatment at the time these record reviews were conducted, and the psychiatric consultative examiner (Dr. Sebold) found significant mental health impairments.
While an ALJ need not “reconcile explicitly ever conflicting shred of medical testimony . . . we cannot accept an unreasoned rejection of all the medical evidence in claimant's favor.” Fiorello v. Hecker, 725 F.2d 174, 176 (2d Cir. 1983). See also Maurer v. Comm'r of Soc. Sec., No. 21-cv-6518 (KMK)(JCM), 2022 WL 2657146, at *18 (June 17, 2022), report & rec. adopted 2022 WL 2657190 (S.D.N.Y. July 8, 2022) (concluding that the ALJ's explanation for giving limited weight to medical opinion that “it was not well supported by the ‘treating record as a whole,' specifically mentioning Plaintiff's statements to providers, other opinion evidence, and activities of daily living” was insufficient where the cited evidence supported additional limitations in the RFC determination).
The ALJ found persuasive “the portions” of Dr. Sebold's opinion “which are supported by and consistent with the evidence.” R. 16. Those “portions” appear to be the areas where he found no or mild limitations. The failure to meaningfully explain why Dr. Sebold's opinion of more significant limitations is not persuasive, particularly where they are consistent with Plaintiff's treating records, is not harmless error because, without an explanation, “I cannot ‘conduct a meaningful review of the ALJ's decision and cannot conclude that his errors were harmless.'” Benique v. Kijakazi, No. 20-cv-3243 (PAE)(OTW), 2021 WL 4894582, at *6 (Sept. 10, 2021), report & rec. adopted 2021 WL 4894612 (S.D.N.Y. Sept. 27, 2021) (quoting Harris v. Comm'r of Soc. Sec., No. 17-cv-3867 (KAM), 2020 WL 1941229, at *12 (E.D.N.Y. Apr. 22, 2020)).
This error is compounded because even a finding that Plaintiff had moderate limitations in the areas of understanding, remembering, or applying complex directions and instructions, and sustaining concentration and performing a task at a consistent pace gives rise to additional limitations and could narrow the range of positions in the national economy, changing the ALJ's ultimate disability determination. See Matta v. Astrue, 508 Fed.Appx. 53, 55-56 (2d. Cir. 2013) (finding that RFC determination properly accounted for moderate difficulties in concentration, persistence, or pace by limiting plaintiff “to simple, routine, low-stress” tasks); Cepeda v. Comm'r of Soc Sec., No. 19-cv-4936 (BCM), 2020 WL 6895256, at *12 (S.D.N.Y. Nov. 24, 2020) (reasoning that ALJ adequately accounted for nonexertional limitations by limiting plaintiff to “simple, routine tasks; work in a low stress job . . . with occasional judgment required on the job . . . [and] work in a job with no fast paced work environments”). Plaintiff's prior work was determined to be performed at an SPV level 2, which Plaintiff's impairments may no longer allow.
Finally, although the Commissioner argues that the ALJ's RFC determination was supported by substantial evidence because a finding of mild to moderate limitations in the areas of mental functioning is “largely consistent with the ALJ's finding that Plaintiff retained the RFC to perform his past unskilled work,” Def. Mem. 17, the cases she cites in support of this argument are distinguishable in that the ALJs explicitly considered the plaintiffs' limitations in the RFC determination. See, e.g., Zabala, 595 F.3d at 407, 410. More importantly, “a restriction to ‘simple' or ‘unskilled' work is [not] equivalent to . . . a limitation relating specifically to ‘concentration, persistence, or pace.'” Stellmaszyk v. Berryhill, No. 16-cv-09609 (DF), 2018 WL 4997515, at *26 (S.D.N.Y. Sept. 28, 2018) (citing McIntyre v. Colvin, 758 F.3d 146 (2d Cir. 2014)).
I therefore recommend that the Court remand Plaintiff's case for further consideration of the record. To the extent that the ALJ concludes again that Dr. Sebold's medical opinion is “vague,” she should seek clarification directly from Dr. Sebold or from another consultative examiner.
CONCLUSION
I recommend that the Plaintiff's motion for judgment on the pleadings be granted, the Commissioner's cross-motion be denied, and the case be remanded for further proceedings pursuant to 42 U.S.C. § 405(g).
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the 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. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Mary Kay Vyskocil at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Vyskocil. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).