Opinion
20 Civ. 6888 (NSR) (AEK)
07-08-2022
LISA JANE JAMISON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
TO: THE HONORABLE NELSON S. ROMAN, U.S.D.J.
This case originally was referred to Magistrate Judge Lisa Margaret Smith on September 28, 2020. ECF No. 9. It was reassigned to the undersigned on October 19, 2020.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE UNITED STATES MAGISTRATE JUDGE
Plaintiff Lisa Jamison brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security (the “Commissioner”), which denied her application for benefits under the Social Security Act (the “Act”). ECF No. 1. Currently pending before the Court are Plaintiff's motion, and the Commissioner's cross-motion, for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ECF Nos. 27, 33. For the reasons that follow, I respectfully recommend that Plaintiff's motion (ECF No. 27) be GRANTED, the Commissioner's motion (ECF No. 33) be DENIED, that judgment be entered in favor of Plaintiff, and that the case be remanded to the Commissioner for further administrative proceedings in accordance with sentence four of 42 U.S.C. § 405(g).
BACKGROUND
I. Procedural History
On June 28, 2017, Plaintiff filed an application for disability insurance benefits, alleging November 18, 2016 as the onset date of her disability. Administrative Record (“AR”) 72, 74.Plaintiff claimed she was disabled due to a torn right rotator cuff, bicep tendon repair on January 3, 2017, and a work-related injury. AR 74. Following the denial of her claim by the Social Security Administration (the “SSA”) on October 18, 2017, Plaintiff requested a hearing before an administrative law judge (“ALJ”). AR 72-80, 94-95. An administrative hearing was held on April 18, 2019; Plaintiff appeared and testified at the hearing and was represented by her attorney, Christopher Latham. AR 49-71. A vocational expert, Josiah Pearson, also testified at the hearing. AR 67-70.
Citations to “AR” refer to the certified copy of the administrative record filed by the Commissioner. ECF No. 22.
ALJ Katherine Edgell issued a decision on May 10, 2019, finding that Plaintiff was not disabled within the meaning of the Act from the alleged onset date, November 18, 2016, to the date of the decision, May 10, 2019. AR 16-22. Plaintiff subsequently filed a request for review of the ALJ's decision with the SSA's Appeal Council, which was denied on June 23, 2020. AR 1-7. That made the ALJ's May 10, 2019 decision the final decision of the Commissioner. The instant lawsuit, seeking judicial review of the ALJ's decision, followed. ECF No. 1.
II. Medical Evidence
A. Dr. Albert Graziosa
Plaintiff first saw Dr. Graziosa on November 18, 2016, at which time she reported experiencing right shoulder pain and discomfort since an incident at work on September 27, 2016 where she was lifting heavy boxes. AR 291. Dr. Graziosa determined that Plaintiff had a “right shoulder contusion strain with an associated retracted rotator cuff tear,” and recommended conservative treatment consisting of range of motion strengthening, ultrasound, and heat therapy, combined with anti-inflammatory medication and muscle relaxants. AR 293. At a follow-up appointment on December 20, 2016, Dr. Graziosa observed that a “[p]hysical exam of the shoulder reveals an apprehensive patient with abduction of about 110 degrees and forward flexion of about 120 degrees, but painful.” AR 296. Dr. Graziosa noted that Plaintiff would need surgery, and opined that “[t]he chances for [Plaintiff] being able to return back to a job that involves heavy lifting and strenuous type activity is highly unlikely ....” AR 295.
The normal range of motion for shoulder abduction is 150 degrees, and the normal range of motion for shoulder flexion is 180 degrees. See Understanding the Normal Shoulder Range of Motion, Healthline, https://www.healthline.com/health/shoulder-range-of-motion (last visited 7/6/2022); Furey v. Saul, No. 17-cv-943 (PMH) (AEK), 2021 WL 5412021, at *2 n.5, 5 n.18, adopted by 2021 WL 4596538 (S.D.N.Y. Oct. 6, 2021).
Plaintiff underwent surgery with Dr. Graziosa on January 3, 2017. AR 299-302; see also AR 279-82. At a follow-up appointment on January 6, 2017, Dr. Graziosa reported that Plaintiff would “require aggressive therapy to regain some functional range of motion.” AR 306-07. On January 26, 2017, however, Plaintiff reported “feeling a lot better, less pain.” AR 309. Dr. Graziosa noted that Plaintiff “has been progressing in a therapy protocol although there have been some issues with continuation of therapy based on authorization that is lacking.” Id.
On March 30, 2017, Plaintiff reported that she was “still having some pain and discomfort progressing slowly in her therapy protocol,” and Dr. Graziosa's physical exam revealed an “apprehensive patient.” AR 315. Dr. Graziosa “recommended she continue to modify activities.” AR 316. Similarly, at an appointment on May 8, 2017, Dr. Graziosa's physical exam of Plaintiff's shoulder “still reveal[ed] an active abduction of about 90 to 95 degrees and forward flexion of about 95 degrees, passive to 120 with pain.” AR 317. Plaintiff's physical therapy had not been authorized since March, and Dr. Graziosa emphasized that “[s]he must have physical therapy and we have made that issue clear . . . [i]n the meantime, she will be supplementing and doing range of motion protocol at home in hopes that that can help.” AR 318. Dr. Graziosa also advised Plaintiff to continue use of anti-inflammatory medication, and noted that he did not recommend the use of narcotics. Id. At appointments on June 14 and July 26, 2017, Dr. Graziosa continued to urge Plaintiff to modify her activities and seek aggressive therapy. AR 323-27.
On September 8, 2017, Plaintiff reported that she continued to have pain, discomfort, and stiffness in her right shoulder, and that she also was experiencing discomfort in her left shoulder due to overuse. AR 468. At this appointment, Dr. Graziosa's physical examination revealed “no significant change from previous visits.” Id. Dr. Graziosa also observed that Plaintiff's physical examination remained essentially unchanged at appointments on November 1, 2017 and December 15, 2017. AR 470-73.
B. Dr. Lisa Nason
Plaintiff was evaluated by Dr. Nason, an orthopedic surgeon, for purposes of her workers' compensation claim. See AR 509-68. On February 6, 2017, approximately one month after her right shoulder surgery, Plaintiff complained of shooting pain across her right shoulder, mid-back, and down her arm, and reported that sleeping, reaching up, and lifting worsened her pain. AR 510-11. Dr. Nason observed that Plaintiff had a decreased range of motion in her right shoulder. AR 512. She diagnosed Plaintiff with right shoulder strain, status post arthroscopy and rotator cuff repair, and recommended physical therapy. Id. Dr. Nason concluded that there was evidence of a moderate disability and opined that Plaintiff was “capable of returning to work with the following restrictions: No lifting more than 10 [pounds], and no working above shoulder level with the right, dominant arm.” Id.
At a subsequent appointment on April 17, 2017, Dr. Nason recommended further physical therapy and Advil, noted that “there is no need for prescription medication,” and concluded after her examination that “there is evidence of a mild-to-moderate disability.” AR 522. As part of the next appointment on June 26, 2017, Dr. Nason determined that the evidence showed a mild disability. AR 528. On October 26, 2017, Dr. Nason found that Plaintiff was capable of returning to work, but that she could not lift more than 25 pounds or work above shoulder level with her right arm. AR 533. At this appointment, Dr. Nason also found that Plaintiff's range of motion in her left shoulder was normal. Id. On January 22, 2018, Dr. Nason concluded that Plaintiff was “capable of returning to full employment with no restrictions,” and that there was a 20 percent scheduled loss of use to the right shoulder. AR 543.
But on April 9, 2018, Plaintiff complained of both right and left shoulder pain, and Dr. Nason diagnosed Plaintiff as having a right shoulder sprain/strain status post arthroscopy and rotator cuff repair, and consequential left shoulder pain. AR 549-50. Dr. Nason noted that “despite normal prior left shoulder exams, the claimant had [an] MRI reporting a full-thickness rotator cuff tear with progressive pain.” AR 550. Dr. Nason recommended left shoulder arthroscopic surgery, followed by physical therapy. Id. She concluded that there was evidence of a mild disability, and that Plaintiff was capable of returning to work but could not lift more than 20 pounds or perform any overhead reaching. AR 551.
On September 10, 2018, Dr. Nason reported that Plaintiff had undergone left shoulder surgery on June 11, 2018. AR 554. Plaintiff complained of pain in her bilateral shoulders at her September 2018 visit, and Dr. Nason noted mild pain with passive forward flexion. AR 555-56. Dr. Nason recommended physical therapy, and noted that prescription pain medication was not necessary. AR 556. She concluded that there was evidence of a mild disability, but Plaintiff could lift no more than 25 pounds and could not work above shoulder level with the left, nondominant arm. AR 557. Dr. Nason also saw Plaintiff on January 7, 2019, where she observed that Plaintiff's range of motion in her right shoulder was normal. AR 562. Dr. Nason opined that there was evidence of a mild (25 percent) causally-related disability based on Plaintiff's physical examination, and that Plaintiff should further pursue physical therapy. AR 562-63. On March 11, 2019, Dr. Nason similarly concluded that there was evidence of a mild disability, but added that “[n]o further physical therapy or orthopedic treatment would be reasonable or necessary for the accident of record.” AR 567.
C. Dr. Catherine Pelczar-Wissner
Plaintiff saw Dr. Pelczar-Wissner, a consultative examiner, for an internal medicine examination on September 19, 2017. See AR 449-53. Dr. Pelczar-Wissner noted that Plaintiff had recently had surgery on her right arm, and “for many years” was lifting heavy things in her purchasing and receiving role at work. AR 449. Dr. Pelczar-Wissner also noted that Plaintiff had developed hypertension in 2017, and was diagnosed with diabetes in 2015. Id. Plaintiff reported that she had trouble cooking, cleaning, doing laundry, and shopping because she could not lift anything, but that she could shower, bathe, and dress herself (though she reported difficulty getting dressed due to her right upper extremity). AR 450.
Dr. Pelczar-Wissner observed that Plaintiff walked with a normal gait, could take a few steps on her heels and toes, and could squat one-third of the way. Id. Plaintiff had a normal stance, did not use an assistive device, did not need help changing for the exam or getting on and off the exam table, and was able to rise from her chair without difficulty. Id. Dr. Pelczar- Wissner reported that Plaintiff's right shoulder had a forward elevation of 90 degrees, abduction of 90 degrees, adduction of 15 degrees, and internal rotation of 20 degrees. AR 451. Plaintiff had full range of motion of her hips, knees, and ankles bilaterally, and her joints were stable and nontender, with no redness, heat, swelling, or effusion. Id. Plaintiff's hand and finger dexterity were intact, and her grip strength was 5/5 bilaterally. Id.
The normal range of motion for forward elevation is 180 degrees. See Rucker v. Berryhill, No. 16-cv-1388 (RRM) (SMG), 2018 WL 1320660, at *7 (E.D.N.Y. Mar. 14, 2018). The normal range of motion for shoulder adduction is 30 to 50 degrees; the normal range of motion for internal rotation (also called medial rotation) is 70 to 90 degrees. See Understanding the Normal Shoulder Range of Motion, Healthline, https://www.healthline.com/health/shoulder-range-of-motion#What-is-normal-shoulder-range-of-motion? (last visited 7/6/2022).
Dr. Pelczar-Wissner diagnosed Plaintiff with status post right shoulder surgery, hypertension, history of deviated septum, allergies, diabetes, and high blood pressure. Id. Dr. Pelczar-Wissner concluded that Plaintiff had a marked restriction for lifting and carrying with the right upper extremity, and a marked restriction for overhead activities and push and pull activities with the right upper extremity. AR 452.
D. Dr. Mitchell Kaphan
Plaintiff first saw Dr. Kaphan on March 16, 2018. AR 474-77. Dr. Kaphan noted that “[s]ince treatment began [Plaintiff] is feeling better in her right shoulder,” but Plaintiff complained of consequential left shoulder derangement secondary to overuse, and reported that it was interfering with her activities of daily living. AR 474. Dr. Kaphan's examination of Plaintiff's right shoulder showed no tenderness to palpation, and a full active range of motion of the elbow, wrist, and fingers. AR 474-75. Dr. Kaphan's examination of Plaintiff's left shoulder showed some crepitus and tenderness to palpation, but a full active range of motion of the elbow, wrists, and fingers. AR 475. He noted, however, that a January 29, 2018 MRI of Plaintiff's left shoulder showed a “full-thickness tear,” and that Plaintiff had “failed a full course of structured physical therapy.” Id. Dr. Kaphan diagnosed Plaintiff with a rotator cuff tear in her left shoulder, and recommended an arthroscopic intervention of the left shoulder. Id. He opined that Plaintiff “cannot return to work,” and also added the following work restrictions: “no lifting, pushing, [or] pulling greater than 10 pounds and nothing overhead.” AR 476. Dr. Kaphan reiterated these restrictions on May 4, 2018, and scheduled Plaintiff for left shoulder surgery on June 11, 2018. AR 480. Plaintiff underwent an acromioplasty and rotator cuff repair of the left shoulder on that date. See AR 482-84.
At a follow-up appointment on June 26, 2018, Dr. Kaphan examined Plaintiff's left shoulder, and found that the wounds were well-healed, although there was some tenderness with range of motion. AR 486. Dr. Kaphan recommended physical therapy three times per week for the next six weeks, stating that “[t]he goal of this treatment is to increase mobility, decrease[] pain, improve function, improv[e] strength, and improve[] activities of daily living.” Id. At Plaintiff's subsequent appointments on July 24, September 4, October 23, and November 27, 2018, Dr. Kaphan observed that Plaintiff had no tenderness to palpation at the acromioclavicular joint, lateral acromial margin, or trapezial area, and had a full active range of motion in her left elbow, wrist, and fingers; he continued to advise physical therapy. See AR 488-99.
At appointments on January 8 and February 20, 2019, Plaintiff complained of sharp, intense pain in her left shoulder that worsened when walking or moving, though she claimed that she felt better with treatment. AR 503, 506. Plaintiff's range of motion in her left shoulder remained unchanged, and she continued to have full active range of motion in her elbow, wrist, and fingers. AR 504, 507. Dr. Kaphan opined that Plaintiff had a “total impairment from her usual occupation,” and reiterated the same work restrictions as indicated in previous reports: “no lifting, pushing, [or] pulling greater than 10 pounds and nothing overhead.” AR 505, 508.
III. Non-Medical Evidence
Plaintiff completed a Function Report on August 10, 2017. See AR 222-31. Plaintiff reported that she lived alone in an apartment, and did not care for someone else in her household, or a pet. AR 222-23. She stated that due to her condition she could no longer comb her hair, cook, clean, do laundry, go grocery shopping, work, drive for more than 25 minutes, or go to the gym, and she reported that due to her condition she could not lay on her right side while sleeping because “the pain wakes me up.” AR 223. With respect to personal care, Plaintiff asserted that she needed assistance pulling clothing over her head while dressing herself, could shower but could not use her tub, and needed her daughter to come over and do her hair. Id. Plaintiff reported no difficulties feeding herself or using the toilet; however, she claimed that she did not prepare meals besides sandwiches because she could not lift pots or reach to take items out of cabinets. AR 224.
Plaintiff reported that she was able to clean her apartment, do laundry and ironing, and grocery shop, but she required help dusting, sweeping, mopping, lifting, and carrying during these tasks. AR 224-25. She listed her hobbies as knitting, sewing, crochet, crafting, reading, and watching television, but stated that due to her condition, she could no longer lift a sewing machine, knit, or crochet. AR 226. In addition, Plaintiff reported that she spent time talking with others about two to three times per week, both in person and over the phone, and visited physical therapy and the park about two to three times per week. Id. Plaintiff asserted that she had no problems getting along with family, friends, neighbors, or others, but said that due to her condition, she did not get invited out. AR 227.
Plaintiff reported that she could not lift more than two pounds, but claimed no limitations with respect to standing, walking, sitting, climbing stairs, kneeling, or squatting. Id. Plaintiff described reaching as “painful” and using her hands as “stressful.” Id. Moreover, Plaintiff asserted that she had no problems paying attention, but maintained that she could not complete household tasks without help due to arm and shoulder pain. Id.
Plaintiff reported that she first had pain, and her pain first started to affect her activities, on September 27, 2016. Id. She described her pain as “sharp, stabbing, twisting, pulling, throbbing, [and] constant ache,” and reported feeling it in her biceps, shoulder, neck, lower back, and shoulder blade. Id. Plaintiff also reported that her pain radiated across her shoulder and down her arm. Id. While Plaintiff stated that she did not cry as much as she did prior to her surgery, she felt pain “all day long,” while doing dishes, sweeping, putting away laundry, writing, or using a keyboard. Id. Plaintiff reported that since January 2017, she took Motrin for her pain up to three times per day; she stated that she had taken ten milligrams of Percocet at one time, but stopped because her doctor “said it was addictive.” AR 230-31. Plaintiff reported that she also relieved her pain with heat and ice packs. AR 231.
IV. Hearing Testimony
A. Plaintiff's Testimony
At the administrative hearing before ALJ Edgell, Plaintiff, who was 61 years old at the time of the hearing, testified that she lived in an apartment, with two flights of stairs, in Yonkers, New York. AR 52-53. Plaintiff stated that she had been living in her current apartment for five months, and before that she also lived in an apartment in a building with both stairs and an elevator. Id. She reported that she lived with a roommate who was out at work during the day, but prior to living in her current apartment, she lived alone. AR 53.
Plaintiff testified that she could drive a car, but her daughter drove her to the hearing, and usually took her to medical appointments. AR 54. She explained that if she did not have a ride available, she would take a cab or bus by herself. Id. Plaintiff testified that she finished high school, and took an accounting course after high school. AR 54-55.
Plaintiff testified that she could not work because she “can't lift [her] arms up too high,” and had a stiff neck, tightness underneath her arm, numbness in her left arm, and “burning/shooting” pain. AR 56. She added that she could not lift anything over two or three pounds. Id. According to Plaintiff, the surgery on her left arm in 2018 did not help, but the right side was doing “better than the left,” although she still had “pain in both.” Id. She explained that she could not reach above shoulder level with either hand. Id. Plaintiff testified that her physical therapy had been discontinued because she had not received an authorization for more. AR 57. Plaintiff reported that she took 600 milligrams of ibuprofen first thing in the morning and before she went to sleep, which “helps.” Id. She testified, however, that she was “constantly” up during the night, because she could not sleep on her right or left side for a length of time. Id.
When asked about a typical day, Plaintiff testified that she woke up around 5:30-5:45 a.m., took a shower, made herself breakfast, and watched television. AR 58. Plaintiff testified that she did not do dishes because the motion of going back and forth from the sink to the dish pan hurt her. Id. Plaintiff said she would make her own lunch, usually a sandwich, and then “sit unless somebody calls and says, do you need to do anything.” Id. Plaintiff testified that when she lived in her own apartment her daughter and granddaughter would come and do daily household chores with her, taking her grocery shopping and carrying the bags upstairs to her apartment. AR 58-59. Her daughter and granddaughter also helped her do laundry. AR 59.
Plaintiff testified that she had not traveled anywhere since November 2016, and although she “would like to” participate in community activities, she claimed that “I don't get to do anything; I have to depend on somebody else to drive me; I can't drive.” Id. Plaintiff said that sometimes her friends might call and ask her if she wanted to go shopping, but otherwise, “[b]asically . . . I sit.” Id. After the ALJ asked for clarification, Plaintiff testified that her doctor had allowed her to drive a little, but she “couldn't turn the car the way [she] was supposed to,” and had previously caused damage to her car. AR 59-60.
When asked by the ALJ how high she could reach out with either arm-“just straight out would be 90 degrees; call the teacher's attention would be 180”-Plaintiff said she could reach out 90 degrees. AR 60. Plaintiff testified that the heaviest amount she could pick up and carry for a short distance was a half-gallon of milk. Id. Plaintiff also testified that she could do things like buttons, zippers, and cutting a sandwich with her right hand, but the “left hand has problems,” specifically pain that shoots from her arm into her hand, making her fingers feel numb, or as if they are locking in place. AR 60-61. Plaintiff testified that she exercises by walking. AR 61.
Plaintiff testified that her last job was purchasing and receiving at an ambulatory surgery center in Mount Kisco, New York. AR 62. The role required her to order supplies, including “packs” for each specialty surgery. Id. Her responsibilities included ordering the packs online or by phone, receiving them, checking that all the items inside were correct, and putting them in the proper place. AR 62-63. Plaintiff testified that she had to carry instrument trays that weighed approximately 20 pounds, and bags of fluids to be used in surgery that weighed approximately 10 pounds each. AR 63. Plaintiff said that boxes of the fluids weighed about 20 to 25 pounds each, and that she would have to open them, take the bags of fluid out of the boxes, and put the bags into containers on shelves. AR 63-64. She testified that she spent about a quarter to a third of her work day receiving and putting away supplies, and the rest of the day checking and ordering supplies. AR 64. While Plaintiff checked the supplies, she needed to stand up and walk around. AR 64-65. Plaintiff testified that she worked in this role for nine years, but also estimated that she had been employed at the surgery center from 2005 to 2016, admitting that she was “getting lost with my years and dates.” AR 65. Plaintiff testified that she also worked for the City of Yonkers, doing “a couple of hours” of “parks and recreation” activities for kids on weekends. Id.
Plaintiff testified that prior to working at the surgery center in Mount Kisco, she worked for two years as an office manager for Dr. Aloysius Smith, a plastic surgeon. AR 65-66. She described it as a “desk job,” involving scheduling surgeries, handling billing, and calling insurance companies for authorizations for surgery. AR 66. Plaintiff testified that the heaviest thing she lifted at that job was a ream of paper, and most of her time was spent doing computer work. Id. Before Plaintiff worked for Dr. Smith, she was a unit manager at St. Joseph's Hospital in 2005. Id. As a unit manager, she would place orders and schedule surgery, but would not have to open boxes; Plaintiff noted that “a lot of it was computer work.” AR 66-67.
B. Vocational Expert Testimony
Josiah Pearson, a vocational expert, testified by telephone at the hearing. See AR 67-70. When the ALJ asked Mr. Pearson to characterize Plaintiff's past work, he classified Plaintiff's role at the Mount Kisco surgery center to be that of a “stock control clerk,” her role with Dr. Smith to be “office manager,” and her role at St. Joseph's Hospital to be “department manager.” AR 67-68. The ALJ asked Mr. Pearson to assume a hypothetical claimant of Plaintiff's vocational profile with no restrictions in sitting, standing, or walking; the ability to lift, carry, push, and pull a maximum of ten pounds; and no overhead right reach and occasional reach in other planes. AR 68. Mr. Pearson determined that the position of department manager/unit manager would remain available based on that residual functional capacity. Id. The ALJ asked whether a claimant who was further restricted to occasional left hand handling and fingering could perform this job, and Mr. Pearson testified that the job should remain available. Id. Mr. Pearson noted, however, that if the claimant were off task in excess of 20 percent of the workday, she could not perform this, or any other, job. Id.
Plaintiff's counsel asked Mr. Pearson if his answer regarding the ability to perform past work would change if the individual in the first hypothetical were limited to only lifting or carrying five pounds occasionally. AR 69. Mr. Pearson testified that as customarily performed in the national economy, the department manager job should remain available, although he noted that Plaintiff testified to lifting reams of paper, which might exceed five pounds. Id. Mr. Pearson also testified, in response to a question from counsel, that sedentary work, as listed in the Department of Labor's Dictionary of Occupational Titles, has a ten pound maximum for lifting. Id. Plaintiff's counsel asked Mr. Pearson to assume the individual had less than occasional ability to handle, finger, feel, and grasp with both of the upper extremities, and Mr. Pearson testified that such an individual would not be able to perform any of Plaintiff's past jobs. Id. When Plaintiff's counsel adjusted the hypothetical so that the individual only had no use of the non-dominant upper extremity, Mr. Pearson testified that the individual would be unable to perform any of the jobs cited, because this limitation would affect computer usage. AR 69-70.
This testimony from Mr. Pearson is not entirely clear, as Plaintiff testified to lifting and carrying a ream of paper as part of her office manager job, not her unit/department manager job. See AR 66-67.
APPLICABLE LEGAL PRINCIPLES
I. Standard of Review
The scope of review in an appeal from a Social Security disability determination involves two levels of inquiry. First, the court must review the Commissioner's decision to assess whether the Commissioner applied the correct legal standards when determining that the plaintiff was not disabled. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). “‘Failure to apply the correct legal standards is grounds for reversal.'” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
Second, the court must decide whether the Commissioner's decision was supported by substantial evidence. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 106 (quotation marks omitted). When determining whether substantial evidence supports the Commissioner's decision, it is important that the court “carefully consider[] the whole record, examining evidence from both sides.” Tejada, 167 F.3d at 774. “It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). If the “decision rests on adequate findings supported by evidence having rational probative force, [the court] will not substitute [its own] judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
II. Determining Disability
The Act defines “disability” as “the 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. § 423(d)(1)(A). An individual is disabled under the Act if he or she suffers from an impairment which is “of such severity that he [or she] is not only unable to do his [or her] previous work but cannot . . . engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). “‘[W]ork which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” Id.
Regulations issued pursuant to the Act set forth a five-step process that the Commissioner must follow in determining whether a particular claimant is disabled. See 20 C.F.R. § 404.1520(a)(4). The Commissioner first considers whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), (b). If the claimant is engaged in substantial gainful activity, then the Commissioner will find that the claimant is not disabled; if the claimant is not engaged in substantial gainful activity, then the Commissioner proceeds to the second step, at which the Commissioner considers the medical severity of the claimant's impairments. 20 C.F.R. § 404.1520(a)(4)(ii). A severe impairment is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant suffers from any severe impairment, the Commissioner at step three must decide if the impairment meets or equals a listed impairment; listed impairments are presumed severe enough to render an individual disabled, and the criteria for each listing are found in Appendix 1 to Part 404, Subpart P of SSA regulations. 20 C.F.R. §§ 404.1520(a)(4)(iii), (d).
If the claimant's impairments do not satisfy the criteria of a listed impairment at step three, the Commissioner must then determine the claimant's residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). A claimant's RFC represents “the most [he or she] can still do despite [his or her] limitations.” 20 C.F.R. § 404.1545(a)(1). After determining the claimant's RFC, the Commissioner proceeds to the fourth step to determine whether the claimant can perform his or her past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv),(e)-(f). If the claimant has the RFC to perform her past relevant work, then the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the Commissioner proceeds to step five to consider the claimant's RFC, age, education, and work experience to determine whether he or she can adjust to other work. 20 C.F.R. § 404.1520(a)(4)(v), (g).
The claimant bears the burden of proof on the first four steps of this analysis. DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998). If the ALJ concludes at an early step of the analysis that the claimant is not disabled, he or she need not proceed with the remaining steps. Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000).
DISCUSSION
Plaintiff seeks to reverse the Commissioner's decision and have the matter remanded to the SSA for further administrative proceedings. ECF No. 28 (“Pl.'s Mem.”) at 5, 13. She contends that the ALJ's determination that she could perform sedentary work with limitations is not supported by substantial evidence. Id. at 12-13. The Commissioner seeks to have her final decision affirmed; she maintains that the ALJ's decision is based upon the application of correct legal standards and is supported by substantial evidence. See ECF No. 34 (“Def.'s Mem.”) at 23, 10-14.
As discussed below, while the Court finds that the Commissioner applied the correct legal standards, the Court concludes that the RFC determination and step four evaluation were not supported by substantial evidence, and therefore respectfully recommends that Plaintiff's motion for judgment on the pleadings be granted, the Commissioner's motion be denied, that judgment be entered in favor of Plaintiff, and that the case be remanded to the Commissioner for further administrative proceedings in accordance with sentence four of 42 U.S.C. § 405(g).
I. The ALJ's Decision
ALJ Edgell applied the five-step sequential analysis described above and issued a decision finding that Plaintiff was not disabled from the alleged onset date of November 18, 2016, through the date of the decision, May 10, 2019. AR 17. First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 18, 2016. AR 18. Second, the ALJ determined that Plaintiff suffered from the following severe impairments: hypertension, right shoulder impingement of the rotator cuff, biceps tear, labral tear, status post-January 2017 arthroscopic repair, left rotator cuff tear by January 2018 MRI, and status post-June 2018 arthroscopic repair. AR 18-19. Third, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 19.
The ALJ noted that Plaintiff had a history of diabetes, but “the condition is managed by diet with no evidence of any treatment for secondary complications.” AR 19. The ALJ found that although the condition was chronic, “[t]here is no medical evidence of record to demonstrate functional limitations as a result of . . . this impairment,” and thus concluded that the impairment was non-severe. Id. Plaintiff has not contested this finding as part of her submission in this matter.
According to the ALJ, Plaintiff retained the RFC to perform sedentary work, except she can lift, carry, push, and pull up to 10 pounds, and can occasionally perform overhead reaching. AR 19. The ALJ determined Plaintiff's RFC by applying the two-step framework described in 20 C.F.R. § 404.1529 and SSR 16-3p, concluding first that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms.” AR 21. The ALJ next found, however, that 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.” Id. The ALJ reached this conclusion after providing a summary of the evidence in the record, including Plaintiff's Function Report, her hearing testimony, her 2017 workers' compensation evaluation, 2016-17 physical therapy records from New Rochelle Physical Therapy, 2017 records from St. Joseph Hospital, a 2017 consultative examination by Dr. Pelczar-Wissner, 2016-18 records from Dr. Graziosa, records from Plaintiff's June 2018 surgery, and 2018-19 records from Dr. Kaphan. See AR 20-21.
Sedentary work “involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a).
In weighing opinion evidence, ALJ Edgell noted that although she “fully considered the medical opinions and prior administrative medical findings,” she did not defer or give any specific evidentiary weight, including controlling weight, to them. AR 21. The ALJ found Dr. Nason's opinion that Plaintiff was limited to lifting and carrying between 10-25 pounds with no overhead reaching to be persuasive, as it was “consistent and supported by the claimant's treatment history and clinical examination findings including decreased range of motion but no crepitus or atrophy.” Id. The ALJ found the opinion of Dr. Pelczar-Wissner-i.e., that Plaintiff only had limitations in the use of her right upper extremity-to be persuasive, as it was consistent with and supported by clinical findings. Id. In addition, the ALJ found the opinion of Dr. Graziosa-who opined that Plaintiff should avoid jobs that involve manual labor, heavy lifting, or strenuous or repetitive types of work with the right upper extremity-to be persuasive, as it was “supported by and consistent with the totality of the medical record, as well as other opinions noted.” Id. Finally, the ALJ found the opinions of Dr. Kaphan-who opined that Plaintiff was limited to lifting and carrying up to 10 pounds with “nothing overhead”-to be persuasive, as they were also consistent with and supported by the treatment records and clinical examination findings. AR 21-22.
ALJ Edgell did not find the percentages of disability noted in Dr. Nason's opinion to be persuasive, however, as the opinion was rendered for purposes of eligibility for workers' compensation, and not by applying the standards for determining disability under the Act. Id.
At the fourth step, the ALJ determined that Plaintiff was capable of performing her past relevant work as a unit manager. AR 22. According to ALJ Edgell, the vocational expert testified at the hearing that a person of Plaintiff's age, education, past relevant work, and RFC would be unable to perform her past work as a unit manager. AR 22. Yet the ALJ concluded that Plaintiff's prior work as a unit manager “does not require the performance of work-related activities precluded by the claimant's [RFC],” and therefore Plaintiff was capable of performing past relevant work. Id. Based on this step four determination, the ALJ found that Plaintiff was not disabled from the onset date of November 18, 2016, through the date of the decision, May 10, 2019. Id.
The ALJ's recitation of the vocational expert's testimony is not accurate. Rather, at the hearing, when the ALJ posited the hypothetical of a person with “no restrictions in sitting or stand/walking, but only ten pounds lift/carry maximum; ten pounds lift, carry, push or pull and no overhead right reach and occasional reach in all other planes,” the vocational expert testified that such a person would be able to perform Plaintiff's past position of unit manager. AR 68.
II. The ALJ's RFC Determination and Step Four Evaluation Are Not Supported by Substantial Evidence
A. Standard for Evaluating Medical Opinion Evidence
Because Plaintiff filed her application for disability insurance benefits after March 27, 2017, her claims are governed by the SSA's current regulations concerning the consideration of medical opinions. See 20 C.F.R. § 404.1520c. “Under the new regulations, a treating doctor's opinion is no longer entitled to a presumption of controlling weight.” Knief v. Comm'r of Soc. Sec., No. 20-cv-6242 (PED), 2021 WL 5449728, at *6 (S.D.N.Y. Nov. 22, 2021) (quotation marks omitted). Rather, an ALJ will neither defer, nor give any specific evidentiary weight, to any medical opinion or prior administrative finding. 20 C.F.R. § 404.1520c(a). Instead, the ALJ is required to consider all the medical opinions in the record and “evaluate their persuasiveness” based on five factors: (1) supportability; (2) consistency; (3) the medical source's relationship with the claimant; (4) specialization; and (5) “other factors that tend to support or contradict a medical opinion or prior administrative medical finding.” 20 C.F.R. §§ 404.1520c(c)(1)-(5); see Pena v. Comm'r of Soc. Sec., No. 20-cv-7897 (AJN) (SLC), 2021 WL 6754958, at *12-13 (S.D.N.Y. Dec. 29, 2021), adopted by 2022 WL 280890 (S.D.N.Y. Jan. 31, 2022).
Supportability and consistency are considered the most important factors in evaluating a medical opinion. 20 C.F.R. § 404.1520c(b)(2); see Knief, 2021 WL 5449728, at *6. With respect to supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). With respect to consistency, “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2). As part of his or her decision, the ALJ must explain how the factors of supportability and consistency were considered. 20 C.F.R. § 404.1520c(b)(2); see Knief, 2021 WL 5449728, at *6. In general, the ALJ may, but is not required to, explain how the other factors were considered. 20 C.F.R. § 404.1520c(b)(2). But when the ALJ determines that two or more medical opinions about the same issue are “both equally well-supported” and “consistent with the record” but “are not exactly the same,” the ALJ must also articulate how he or she considered the other factors for those medical opinions. 20 C.F.R. § 404.1520c(b)(3).
B. The ALJ's Evaluation of the Evidence and RFC Determination
Certain aspects of the ALJ's RFC determination-i.e., that Plaintiff has the RFC to perform sedentary work, with the specification that she can lift, carry, push, and pull up to 10 pounds-are not in dispute. Both treating and examining medical sources in the record uniformly acknowledged that Plaintiff had “significant limitations in lifting and carrying.” AR 21. Dr. Nason concluded in April 2018 that Plaintiff was “capable of returning to work with the following restrictions: No lifting greater than 20 lbs. and no overhead reaching.” AR 557; AR 20, 21. Dr. Kaphan recommended even more stringent restrictions, advising against “lifting, pushing, pulling greater than 10 pounds and nothing overhead.” AR 476, 480, 486, 490, 493, 496, 499, 504, 508. Dr. Pelczar-Wissner concluded that Plaintiff had marked restrictions in lifting, carrying, pushing, pulling, and “overhead activities” with the right upper extremity. AR 452. And Dr. Graziosa noted at Plaintiff's pre-shoulder surgery appointment in December 2016 that “[t]he chances for [Plaintiff] being able to return back to a job that involves heavy lifting and strenuous type activity is highly unlikely.” AR 295. The ALJ found each of these opinions “persuasive,” and in accordance with SSA regulations explained how she found each opinion to be supported by and consistent with Plaintiff's treatment history, clinical examination findings, and other medical opinions in the record. AR 21-22.
1. Overhead Reaching
Plaintiff objects to the portion of the ALJ's RFC finding that states that she “can occasionally perform overhead reaching.” See Pl.'s Mem. at 12-13. These objections are well-founded. While the medical sources use different language to refer to Plaintiff's limitations on overhead reaching, those opinions taken together, along with the other evidence in the record, cannot support the ALJ's determination that Plaintiff has the capacity to occasionally perform overhead reaching.
As the Commissioner acknowledges, Dr. Nason concluded, in an examination on April 9, 2018, that Plaintiff could perform “no overhead reaching” at all, AR 551, and the ALJ appropriately incorporated this “no overhead reaching” assessment into her decision, AR 21.In his evaluations, Dr. Kaphan repeatedly restricted Plaintiff to “no lifting, pushing, [or] pulling greater than 10 pounds and nothing overhead” at work through and including his final appointment with Plaintiff in February 2019. AR 476, 480, 486, 490, 493, 496, 499, 504, 508. In addressing this opinion, however, the ALJ improperly minimized the scope of Dr. Kaphan's assessment of Plaintiff's overhead limitations, describing his opinion as recommending only a limitation on “overhead lifting.” AR 22. This framing mischaracterizes Dr. Kaphan's opinion, which was stated consistently throughout his treatment of Plaintiff. In Dr. Kaphan's view, Plaintiff was capable of nothing overhead, which logically would include the same complete restriction on overhead reaching recommended by Dr. Nason. This reading of Dr. Kaphan's opinion is consistent with and supported by the other findings articulated in Dr. Kaphan's reports throughout his course of treatment of Plaintiff. The Commissioner maintains that the placement of the phrase “nothing overhead” in Dr. Kaphan's reports-following his prescribed limitations on lifting, pushing, or pulling-should be interpreted as referring to an even greater limitation on lifting, pushing, or pulling overhead, as opposed to a complete restriction on all overhead activities. But there is no reason to believe that the ALJ interpreted Dr. Kaphan's opinion this way-if she had, she could have described his recommendation as a limitation on overhead lifting, pushing, and pulling. Instead, she erroneously considered Dr. Kaphan's opinion only as a limitation on overhead lifting. Contrary to the Commissioner's argument, see Def.'s Mem. at 11-12 n.8, this is not a situation where “the evidence is susceptible to more than one rational interpretation,” and “the Commissioner's conclusion must be upheld.” McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014). Rather, the ALJ decision incorrectly minimized the scope of Dr. Kaphan's opinion, which indicated that she could perform “nothing overhead,” and created a misleading impression of the record with respect to Plaintiff's ability to perform overhead reaching.
While Dr. Nason's prior evaluations had focused on Plaintiff's right shoulder limitations and had not led to as comprehensive a recommended limitation on overhead reaching, the April 9, 2018 examination was the first performed by Dr. Nason after Plaintiff's January 29, 2018 MRI that revealed a full-thickness tear in her left rotator cuff. See AR 475, 550.
In a subsequent examination on September 10, 2018, Dr. Nason concluded that Plaintiff could return to work with “[n]o lifting greater than 25 lbs. and no working above shoulder level with the left, non-dominant, arm.” AR 557. This opinion was not addressed, however, by either the ALJ, in her decision, or the parties, in their motion papers. The Court declines to offer its own assessment of what impact, if any, this opinion might have had on the ALJ's decision had it been addressed by the ALJ.
The ALJ stated that “no physician opined greater limits during the duration of the alleged period” than the RFC set by the ALJ in the May 10, 2019 decision, which included the ability to “occasionally perform overhead reaching.” As set forth above, however, this statement in the ALJ decision is plainly incorrect in light of the findings and recommendations of both Dr. Nason and Dr. Kaphan.
The other medical sources in the record do not contradict the opinions of Dr. Nason and Dr. Kaphan as to Plaintiff's ability to reach overhead. Dr. Pelczar-Wissner concluded in September 2017 that Plaintiff had a marked restriction for overhead activities and push/pull activities with her right upper extremity. AR 452. Although this opinion only describes an overhead limitation with respect to Plaintiff's right shoulder, that does not tell the entire story, because Dr. Pelczar-Wissner-a consultative examiner-only saw Plaintiff one time, in September 2017. The injury to Plaintiff's left shoulder was observed on an MRI on January 29, 2018, and it is notable that the two physicians who examined Plaintiff after that date-Dr. Nason and Dr. Kaphan-both opined that Plaintiff would not be capable of overhead reaching with either extremity. While the ALJ decision accurately described Dr. Pelczar-Wissner's findings and recommendations, there is no indication that the ALJ considered how the timing of Dr. Pelczar-Wissner's examination impacted the scope of her opinion as to Plaintiff's overhead limitations. The ALJ appropriately found Dr. Pelczar-Wissner's opinion persuasive, based on the fact that it was “consistent with and supported by the clinical examination findings,” AR 21, but because those findings were from a specific point in time, and because the record is clear that Plaintiff's left shoulder impairment developed later, there are obvious limitations in Dr. Pelczar-Wissner's opinion as to overhead reaching that were not adequately acknowledged by the ALJ.
As for Dr. Graziosa, the ALJ appropriately took account of his opinion that Plaintiff “should avoid jobs that involve manual labor, heavy lifting, [and] strenuous or repetitive types of work with the right upper extremity,” AR 21, but Dr. Graziosa did not make any specific recommendations with respect to Plaintiff's ability or inability to perform overhead reaching.
Plaintiff's hearing testimony is consistent with the conclusions reached by Dr. Nason and Dr. Kaphan about her ability to reach overhead. In response to a question about why she was currently unable to work, Plaintiff testified, among other things, that she “can't lift my arms up too high.” AR 56. Shortly thereafter, the ALJ attempted to clarify this point:
Q: Okay. And, you said you can't reach overhead, so you can't reach, like, above should[er] level with either hand?
A: No - no.AR 56-57. The ALJ came back to this issue later in the testimony:
Q: Don't show me, but tell me with words, what's the highest you can reach with either arm; so, in other words, just straight out would be 90 degrees, call the teacher's attention would be 180, what's your percentage?
A: I'd say 90.AR 60. Yet inexplicably, despite these responses, the ALJ also declared that Plaintiff's “allegations of disabling impairments are unsupported by her own statements and actions.” AR 21. Plaintiff's testimony certainly is consistent with the medical opinions limiting her ability to reach overhead. Moreover, while the ALJ points to a number of activities and items of personal care that, in the ALJ's view, indicate that Plaintiff “is leading an active existence in spite of her allegations,” AR 21, none of these activities-such as making a sandwich, lifting a ½ gallon of milk, grocery shopping, talking to friends, going to the park, or using public transportation- necessarily requires the ability to reach overhead.
In sum, the record does not contain substantial evidence to support that portion of the RFC determination that concluded that Plaintiff can occasionally perform overhead reaching. Indeed, the two physicians who saw Plaintiff most recently and for numerous visits both concluded that Plaintiff could not perform any overhead reaching, or, in one case, any overhead activity at all. The one medical opinion that provided a less restrictive assessment of Plaintiff's overheard reaching capabilities was from a consultative examiner who saw Plaintiff at a point in time before certain impairments started to appear in the record, and the fourth medical source did not opine on this particular issue one way or the other. These medical opinions do not provide a basis for the ALJ's conclusions regarding overhead reaching. “In the absence of a medical opinion to support the ALJ's finding . . . it is well-settled that the ALJ cannot arbitrarily substitute [her] own judgment for competent medical opinion. While an ALJ is free to . . . choose between properly submitted medical opinions, [she] is not free to set [her] own expertise against that of a physician who submitted an opinion to or testified before [her].” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (cleaned up). Accordingly, the ALJ's RFC determination is not supported by substantial evidence.
2. Step Four Determination
It is not clear from the record whether the portion of the RFC that is not supported by substantial evidence was integral to the ALJ's step four determination that Plaintiff would be able to perform her past work as a unit manager. The hypothetical RFC posed by the ALJ to the vocational expert at the hearing did not correspond precisely to the ALJ's ultimate RFC determination, nor did the ALJ present a scenario to the vocational expert whereby Plaintiff would not have been capable of any overhead reaching at all. AR 68-70. As a result, this case must be remanded for further administrative proceedings to reassess Plaintiff's RFC, to determine whether Plaintiff she would be able to perform her past relevant work given a properly assessed RFC, and if not, whether, in light of Plaintiff's RFC, age, education and work experience, Plaintiff could adjust to other work.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff's motion for judgment on the pleadings (ECF No. 27) be GRANTED, the Commissioner's motion for judgment on the pleadings (ECF No. 33) be DENIED, that judgment be entered in favor of Plaintiff, and that the case be remanded to the Commissioner for further administrative proceedings.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Nelson S. Roman, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Roman, 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 appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).