Opinion
21 Civ. 884 (KMK) (JCM)
05-04-2022
ASSANA LATIFU, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
The Honorable Kenneth M. Karas, United States District Judge
REPORT AND RECOMMENDATION
JUDITH C. McCARTHY UNITED STATES MAGISTRATE JUDGE
Plaintiff Assana Latifu (“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security (“Commissioner” or “Defendant”), which denied Plaintiff's application for disability insurance benefits. (Docket No. 1). Presently before the Court are: (1) Plaintiff's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, (Docket No. 14), and (2) the Commissioner's cross-motion for judgment on the pleadings, (Docket No. 16). For the reasons set forth herein, the Court respectfully recommends granting Plaintiff's motion, denying the Commissioner's cross-motion, and remanding this case for further proceedings.
I. BACKGROUND
Plaintiff was born in Ghana on March 7, 1970 and emigrated to the United States in 1996. (R. 56). Plaintiff filed an application for disability insurance benefits on August 13, 2018, alleging a disability onset date (“AOD”) of September 28, 2017. (R. 99, 174). Plaintiff's application was initially denied on September 28, 2018, (R. 100), after which Plaintiff requested a hearing, (R. 106-07), which was held on January 7, 2020, (R. 43). Administrative Law Judge (“ALJ”) Dina R. Loewy (“ALJ Loewy”) issued a decision on March 26, 2020, denying Plaintiff's claim. (R. 15-24). Plaintiff requested review by the Appeals Council, which denied the request on May 12, 2020, (R. 1-3), making the ALJ's decision ripe for review.
Refers to the certified administrative record of proceedings (“Record”) relating to Plaintiff's application for social security benefits. (Docket No. 11).
All page number citations to the Record refer to the page number assigned by the Social Security Administration.
A. Non-Medical Evidence
1. Plaintiff's Work History
From 2003 to September 2017, Plaintiff worked as a home health aide eight hours per day, five days per week, for various employers, including National Home Care, Inc., Special Touch Home Care Services, JK Staffing, Ltd., Harbor Care, LLC, MJ-MC Home Health Care Agency, Inc., Hudson Valley Elder Care, Inc., Regency Healthcare, Inc., and Post Morris Home Care Agency, LLC. (R. 59, 191-94, 199, 202). Plaintiff completed a certification as a home health aide around 2006. (R. 53). She also worked from 2001 to 2009 as a customer service representative at the Dollar Train, Inc., Easy Pickins, Inc., and Dr. Jays, Inc., “working the floor” and “fixing . . . clothes,” for eight hours a day, five days per week. (R. 59, 81-82, 191-94, 199, 201). In 2004 and 2013, Plaintiff was also self-employed as a babysitter, working five hours per day, three days per week. (R. 60, 191, 193, 199, 200). She stopped working on September 28, 2017 due to her medical conditions. (R. 174).
Plaintiff's wage records suggest that she earned $119.70 in 2018 from Regency Healthcare, Inc., but it is unclear whether it was due to continued employment or for some other post-employment reimbursement purposes. (R. 193).
2. Plaintiff's Disability Application
Plaintiff's claim for disability was based on the following alleged impairments: back injury, right shoulder surgery, abdominal pain, ear pain, arthritis, and left knee pain. (R. 94, 209). Plaintiff never submitted a function report. (R. 56). The ALJ, therefore, sought testimony from Plaintiff at the hearing regarding her daily activities and functional limitations. (R. 56-57, 62-63). See infra Section I.D.1. Plaintiff is seeking disability benefits from her AOD of September 28, 2017 to June 30, 2018 (“Eligibility Period”), the date the ALJ determined she was last insured (“DLI”). (R. 18).
B. Medical Evidence
The Record contains hospital and treatment records from December 26, 2000 through October 14, 2019. The relevant portion of the Record is summarized below in chronological order.
1. Before September 29, 2017
On August 28, 2013, Plaintiff underwent a magnetic resonance imaging test (“MRI”) of the lumbar spine (the “2013 Lumbar Spine MRI”) after experiencing bilateral radicular symptoms and foot pain. (R. 407). The 2013 Lumbar Spine MRI showed “significant degenerative changes” at L4-L5 and at L5-S1, both with “significant diffuse disk bulging, ligamentum and facet hypertrophy, and severe bilateral neural foraminal narrowing.” (R. 407-08). At L4-L5, the 2013 Lumbar Spine MRI also found “moderate focal canal stenosis.” (R. 407).
In summer 2014, Plaintiff obtained a doctor's note from Dr. George E. Owusu, M.D. at Gevans Medical Practice, L.C. (“Gevans”), stating that she could not “return to work/school” because of her right shoulder strain and because of her “PT schedule for physical therapy,” which she attended at least twice per week. (R. 429).
On April 28, 2016, Dr. Owusu issued another doctor's note, which stated that she had “medical clearance” to return to work with “no restrictions” and “no limitations.” (R. 427).
On June 13, 2016, Plaintiff underwent another MRI of her lumbar spine (“2016 Lumbar Spine MRI”), as well as an MRI of her right shoulder (“2016 Right Shoulder MRI”). (R. 420-24). The 2016 Lumbar Spine MRI showed findings consistent with the 2013 Lumbar Spine MRI: “degenerative disc disease at L4-L5 and L5-S1” and “board [sic] central disc herniation at L4-L5 and L5-S1, [with] foraminal encroachment of both sides bilaterally.” (R. 421). There was also new evidence of “mild uniform disc bulge at the L3-L4.” (Id.). The 2016 Right Shoulder MRI showed “extensive partial thickness tears of the supraspinatus and infraspinatus tendons,” “advanced osteoarthritis of the glenohumeral joint and to a lesser degree the acromioclavicular joint,” “large joint effusion with multiple loose bodies” in the shoulder, “diffuse tear of the posterior labrum,” and “severe attenuation of the inferior glenohumeral ligament” that suggests a previous partial tear. (R. 423).
On August 3, 2016, Plaintiff went to North Central Bronx Hospital for an unscheduled visit with the Orthopedics Clinic for follow-up pain management. (R. 383-84). Plaintiff's history included X-ray findings of degenerative changes and an MRI finding of degenerative disc disease, (R. 384), but at the time, she was “not experiencing pain” and was ambulating without difficulty, (R. 383), so Plaintiff was instructed to return for a follow-up visit in three months or as needed, (R. 384). The evaluating physician noted her BMI was “above normal,” and provided “exercise counseling.” (R. 383).
On August 10, 2016, Plaintiff returned to North Central Bronx Hospital for an unscheduled visit with Dr. Steven Lager, D.O. at the Rehabilitation Clinic for pain in her right shoulder, left and right knees, and “burning in both feet.” (R. 385). The pain in her right shoulder had been an 8 out of 10, but diminished to a 4 out of 10 after receiving a steroid injection. (Id.). Plaintiff rated the pain in her left knee as an 8 out of 10, and the pain in her right knee as at a 4 out of 10. (Id.). The burning in her feet started “several years ago” and had been limited to the toes, but now “the entire bottom of the foot” burned. (Id.). It was exacerbated after walking for fifteen minutes, and did not subside upon sitting. (Id.). Plaintiff also experienced pain down the legs “within 20 minutes of walking.” (Id.). An examination revealed that Plaintiff “[came] to standing very slowly,” and exhibited “back pain with trunk flexion” that “worse[ned] when she c[a]me upright.” (R. 386). Dr. Lager determined that, consistent with her history, Plaintiff had tenderness in the “L4-S1 regions” and had “abnormal lumbosacral rhythm with back hyperextension without pelvic derotation so she stands with increased lordosis and flexed hips.” (Id.). The range of motion in her hips was “good,” but there was pain from flexing and from immediate and extended releases. (Id.). Plaintiff had a negative straight leg raise test, grades 2 and 3 on the deep tendon reflexes test for her knees and ankles, and “slightly decreased” rate in a vibration test of her hallux. (Id.). Dr. Lager diagnosed Plaintiff with degenerative osteoarthritis in her right shoulder and knees, “lumbar stenosis with symptoms of claudication with walking,” and possible tarsal tunnel or neuropathy. (R. 386-87). He created a treatment plan which included X-raying Plaintiff's knees, increasing the dosage of her gabapentin prescription, taking Aleve, and participating in physical therapy for “knee strengthening, [s]houlder [range of motion] and strength, [and] lumbar stretches.” (R. 387). Plaintiff was instructed to return in two months. (Id.).
On August 23, 2016, Plaintiff returned to North Central Bronx Hospital for an unscheduled walk-in visit to their Medical Clinic, complaining of shoulder and back pain. (R. 380). Plaintiff reported that the gabapentin was not improving her symptoms, but taking Aleve twice a week “help[ed] somewhat.” (Id.). She experienced “mild low back tenderness, limited lumbar flexion,” but no swelling, erythema, or warmth. (R. 381). She also experienced tenderness of the anterior and lateral shoulder, “limited abduction and internal rotation,” but again no swelling, erythema, or warmth. (Id.). Plaintiff's central nervous system “motor” was “5/5;” she was “able to heel/toe walk;” she had symmetric deep tendon reflexes; and her sensory system was “grossly intact.” (Id.). She had a positive straight leg raise test. (Id.). The doctor indicated in the records that Plaintiff had severe degenerative joint disease of the right shoulder and lumbar spine. (Id.). She was prescribed acetaminophen and increased doses of gabapentin, was educated about weight loss, and was told to return in three months. (R. 381-82). Before the next visit, she was ordered to complete blood work. (R. 382). She was also referred to a nutritionist, rehabilitation resource, and orthopedist. (Id.).
On October 18, 2016, Plaintiff returned to the Rehabilitation Clinic at North Central Bronx Hospital complaining of right shoulder and left knee pain. (R. 391). Despite physical therapy, Plaintiff said her pain continued and the burning in her feet persisted. (Id.). She rated the pain in her right shoulder as an 8 out of 10 and her left knee as a 5 out of 10. (Id.). She indicated she had no pain in her left shoulder and right knee. (Id.). There was no change in Plaintiff's history from the August 10, 2016 treatment notes, except that Plaintiff reported her right shoulder felt better for three weeks after receiving a steroid injection. (R. 392). The doctor noted that X-rays from March 2012 showed “moderate arthritic changes;” the 2013 Lumbar Spine MRI showed “severe bilateral neuroforaminal narrowing” at L4-L5 and L5-S1; and an X-ray report from June 2015 noted that her “right shoulder [was] severe.” (Id.). The examination revealed that she had limited range of motion with “adduction and extension” of the external rotation of the right shoulder with crepitus, and that her passive range of motion was “painful and tender[] along [the] joint line.” (Id.). Her left shoulder had full range of motion and was not tender. (Id.). Her left knee was painful but had full range of motion with crepitus, and her right knee was normal, but both had “marked joint line tenderness,” especially on the “left medial joint line.” (R. 392-93). These findings largely confirmed Plaintiff's previous diagnoses. (R. 393-94; compare R. 386-87). The doctor discontinued gabapentin, ordered blood work, prescribed physical therapy for her back, and referred her for a lumbar spine injection. (R. 394). Plaintiff was advised to follow up in a month.
On February 22, 2017, Plaintiff saw Dr. Owusu with complaints of lumbar pain radiating to the right shoulder, with no weakness, numbness and tingling. (R. 467). An examination of the lumbar spine revealed no vertebral tenderness or loss of motor function but found “right lumbar paraspinous musculature with trigger points” and a “decrease[d] range of motion with [her] right shoulder.” (R. 468). Dr. Owusu assessed right shoulder strain. (Id.). Dr. Owusu also noted that Plaintiff was clinically obese, with a BMI of 34.01. (R. 467).
On April 10, 2017, Plaintiff made an appointment at Morrisania Diagnostic & Treatment Center (“Morrisania”) with her primary care physician, Dr. Swarupa Gaddipati, M.D. (R. 321, 324). She complained of diffuse joint pain in her knees, right shoulder and back. (R. 324). Examination revealed Plaintiff had “frozen [right] shoulder” and “crepitations of knees.” (R. 325). Dr. Gaddipati prescribed Voltaren and Zantac, and ordered Plaintiff to do “[range of motion] exercises” and get X-rays taken of her right shoulder before returning in six weeks. (Id.). The X-rays showed “severe degenerative osteoarthritic changes in the right glenohumeral joint” with “severe narrowing of right glenohumeral joint space and multiple marginal osteophyte formation along the inferior aspect of [the] right glenohumeral joint.” (R. 319). The X-rays also revealed “mild degenerative osteoarthritic changes in the right acromioclavicular joint.” (Id.). The right sternoclavicular joint was “intact.” (Id.). Plaintiff's BMI was 34.1, and she was instructed on the “importance of exercising,” encouraged to consume “a low-sodium diet,” and take a half hour walk five days a week. (R. 321). Dr. Gaddipati recommended she return in six weeks. (Id., see also R. 325).
On May 11, 2017, Plaintiff was seen in the Orthopedic Clinic at Lincoln Medical and Mental Health Center (“Lincoln”) for right shoulder pain. (R. 273). The pain increased with overhead movement and woke her at night. (Id.). Plaintiff also reported lower back pain, with numbness and tingling radiating down her lower extremities bilaterally. (Id.). An examination of the right shoulder revealed “[s]urgical incisions well healed,” acromioclavicular joint tenderness, and positive Neer's and Hawkin's tests, and Plaintiff was diagnosed with right shoulder impingement. (R. 273-74, 310-11). The doctor prescribed Naproxen and recommended “RICE” (rest, ice, compression, and elevation), as needed. (R. 274). The doctor also referred Plaintiff for neurosurgery and rehabilitation, and told her to modify her activities and return to the clinic in three months. (Id.)
The Record contains duplicate versions of multiple treatment notes and lab findings. (See, e.g., R. 273-74, 310-11; 374-75, 441-42). For ease of reference, the Court cites only one version of the duplicative notes.
On May 23, 2017, Plaintiff returned to Morrisania for a follow-up appointment with her primary care physician and reported that she saw an orthopedist as advised, but “they didn't do anything for her,” so she did not “keep [her] other appointment” with the orthopedist, and was not planning to attend physical therapy as recommended. (R. 306). Plaintiff was encouraged to keep the physical therapy appointment. (Id.). Plaintiff was diagnosed with hyperlipidemia, advised to go on a low cholesterol diet, and to return in six months to recheck her lipid levels. (Id.).
On July 11, 2017, Plaintiff saw Dr. Peter Kaganowicz, M.D. at Lincoln's Rehabilitation Center, for right shoulder pain. (R. 267). She explained to Dr. Kaganowicz that she had been experiencing right shoulder pain for three years, and it was aggravated by raising her right upper extremity. (Id.). An examination revealed tenderness in the right anterior and posterior-lateral shoulder, limited range of motion with clicking during internal rotation, positive Hawkin's and Neer's test results, and weakness of the shoulder muscles. (Id.). Dr. Kaganowicz diagnosed Plaintiff with impingement syndrome, and recommended that she see an occupational therapist (OT) and continue pain medication. (Id.). The goal was to lessen the pain to a 1 out of 10 on the pain scale. (Id.).
On August 1, 2017, Plaintiff met OT Anna Marie Yeung, who noted that Plaintiff had generalized tenderness and limited strength in her right shoulder, and full strength, mild stiffness, and crepitation in her left shoulder “mostly upon internal rotation.” (R. 276-77). Prior to the onset of pain, Plaintiff was independent in all her activities of daily living (“ADL”), but now had “difficulty in all ADLs” that involved overhead movements, reaching back, and heavy lifting. (Id.). Plaintiff went to occupational therapy every week during August 2017; Plaintiff's response to treatment was “fair;” and her pain level improved from a 5 to a 3. (R. 276-89).
On September 5, 2017, Plaintiff saw Dr. Kaganowicz again and reported improvements. (R. 264). Plaintiff indicated a 0 out of 10 pain level and had no tenderness in the right anterior and posterior-lateral shoulder. (Id.). She had positive Neer's and Hawkin's tests, but her strength in her right shoulder had improved, and Dr. Kaganowicz concluded that she was “[i]ndepenent in all Activities of Daily Living, self-care, & instrumental.” (Id.). Given her improvements, occupational therapy was discontinued, and Plaintiff was instructed to continue her home exercise program and take pain medication as needed. (Id.).
2. Between September 29, 2017 and June 30, 2018
On February 3, 2018, Plaintiff saw Dr. Owusu because she was experiencing sharp lumbar pain that radiated to her knee for three days. (R. 458). She denied any trauma or unusual activity. (Id.). Plaintiff rated the pain as a 4 or 5 out of 10. (Id.). Plaintiff denied paresthesias or motor weakness. (Id.). Plaintiff was taking acetaminophen. (R. 459). An examination revealed right lumbar paraspinous musculature with trigger points, and a decreased range of motion in her right knee. (R. 458; compare R. 468). She had normal curvature, no vertebral tenderness, and “motor function, sensation to light touch, and DTR's intact.” (Id.). Dr. Owusu determined that Plaintiff had lumbar and knee strains and diagnosed her with unspecified backache, malaise and fatigue, myalgia and myositis, sprain of unspecified site of knee, leg, and foot. (R. 459). During this visit, Plaintiff's BMI measured 34.01. (R. 458).
On February 12, 2018, Plaintiff visited the Emergency Department at BronxCare Ogden Family Medical Center (“Ogden”), after experiencing back pain that radiated to the back of her right leg. (R. 371). Plaintiff informed Dr. Ayilam Sudhakar, M.D. that she had experienced similar problems in 2015 which resolved, and she was currently able to weight bear and walk. (Id.). On examination, Plaintiff showed decreased range of motion due to pain in her extremities, but no joint swelling or joint erythema. (R. 372). The straight leg raise test was negative. (Id.). Dr. Sudhakar diagnosed Plaintiff with sciatica and discharged her with prescriptions for ibuprofen and Flexeril. (Id.). She was instructed to return to the Emergency Department “if the symptoms worsen[ed] or if prescribed medications [did] not have the desired/planned effect.” (Id.).
On February 21, 2018, Plaintiff returned to Ogden for follow up. (R. 368). She told Dr. Vijaya Reddi, M.D. that she experienced chronic right shoulder pain that “radiat[ed] down her arm,” and lower back pain that “radiate[d] down both legs.” (Id.). Her shoulder pain was “aggravated by lifting heavy objects, [and relieved] with pain medications.” (R. 368). Her back pain was [aggravated] with walking,” and “[relieved] with lifting her legs.” (Id.). She denied any weakness, but felt “tingling and numbness” in both legs. (Id.). She described the pain as uncontrolled and chronic, and the records indicate that Plaintiff had not been working for a month. (Id.). On examination, Plaintiff had decreased range of motion in her right shoulder due to pain, “intact” range of motion and strength in her back, and negative straight leg raise test in the bilateral lower extremities. (R. 369). Dr. Reddi assessed right shoulder and lower back pain and advised Plaintiff to “continue current pain medications with acetaminophen for break through [pain].” (Id.). Dr. Reddi noted that Plaintiff would benefit from physical therapy and advised her to see her primary care physician because Ogden did not accept her insurance plan. (Id.). Plaintiff's BMI measured 34.9. (Id.).
On March 14, 2018, Plaintiff returned to Dr. Owusu with other health concerns, and upon examination, Plaintiff was determined to be obese, with a BMI of 34.01, and Dr. Owusu advised Plaintiff to increase dietary efforts and exercise. (R. 460-61).
On April 18, 2018, Plaintiff visited Hudson Valley Radiology Associates for X-rays of her right shoulder, at the request of Dr. Marc Silverman, M.D., Plaintiff's orthopedic surgeon. (R. 437). The X-rays showed “no acute changes such as fracture or subluxation,” but there were “extensive degenerative changes” to the shoulder joint with “marked narrowing, sclerosis and prominent spur formation especially inferiorly.” (Id.). Plaintiff also visited Dr. Raji Ayinla, M.D. that day for pain in her right shoulder, and was diagnosed with moderate-to-severe degenerative joint disease. (R. 449).
On May 29, 2018, Plaintiff underwent arthroscopic surgery on her right shoulder. (R. 374-75). Dr. Silverman performed the surgery and found “moderate to severe degenerative arthritis” of the right shoulder joint with “large tears [of the] labrum and partial tears of the biceps and rotator cuff,” as well as synovitis, bursitis, and “severe impingement” of the right shoulder. (Id.). Dr. Silverman also performed abrasion arthroplasty, debridement and arthroscopic repair of tears, synovectomy, bursectomy, acromioplasty, and chondroplasty to Plaintiff's right shoulder. (R. 374). Plaintiff “tolerated” the operation well and was discharged that same day. (R. 375).
3. After June 30, 2018
On July 16, 2018, Plaintiff saw Dr. Melinda A. Aquino, M.D. at the Multidisciplinary Pain Program at Montefiore for chronic lower back pain with bilateral sciatica. (R. 412). Dr. Aquino ordered an X-ray and MRI of Plaintiff's lumbar spine, prescribed Meloxicam and advised Plaintiff to return to the clinic after having her MRI taken. (Id.). Plaintiff had a BMI of 32.95. (Id.).
On August 20, 2018, Plaintiff underwent a lumbar spine MRI (the “2018 Lumbar Spine MRI”). (R. 411). Consistent with Plaintiff's previous MRIs, the 2018 Lumbar Spine MRI showed disc and chronic facet degeneration at L4-L5 and L5-S1 with canal stenosis, lateral recess crowding and bilateral foraminal narrowing. (Id.). It also showed degenerative marrow signal changes along the vertebral endplates and disc desiccation at L4-L5 and L5-S1. (Id.). There was broad disc bulge, moderate facet hypertrophy, facet joint effusions, moderate canal stenosis with crowding in the lateral recesses, and bilateral foraminal narrowing with nerve root impingement at the L4-L5 level. (Id.). Similarly, at the L5-S1 level, there was disc bulge, facet joint hypertrophy that was greater on the right than the left, mild canal stenosis, crowding in the right lateral recess, and bilateral foraminal narrowing without root impingement. (Id.). In addition, the 2018 Lumbar Spine MRI found a mild disc bulge at L2-L3 with slight facet hypertrophy and foraminal narrowing, and a disc bulge at L3-L4 with mild facet joint hypertrophy and mild foraminal narrowing. (Id.).
On October 20, 2018, Dr. Ayinla referred Plaintiff to physical therapy for both knees and lower back. (R. 445). On November 2, 2018, Dr. Ayinla advised Plaintiff to “please [follow up] on prescription [for physical therapy for] right shoulder, frozen right shoulder.” (R. 444).
On November 7, 2018, Plaintiff had X-rays of her lumbar spine, (R. 447), right knee, (R. 419), and left knee, (R. 418). The lumbar spine X-rays confirmed the 2016 Lumbar Spine MRI findings of early degeneration of the L4-L5 and L5-S1 intervertebral discs, but also found new “spondylolisthesis” at L4-L5. (R. 447). The knee X-rays showed no signs of fractures, dislocations, or lytic or blastic lesions in either knee. (R. 418-19). Both knees suffered from moderate-sized joint effusion and hypertrophic osteoarthritis. (Id.). X-rays of the right knee showed it also had “mild lateral compartment joint space narrowing” and “no soft tissue calcifications.” (R. 419). X-rays of the left knee specified “severe medical compartment osteoarthritis” and “hypertrophic osteoarthritis in the lateral compartment and patellofemoral joint.” (R. 418). Dr. Ayinla diagnosed moderate-to-severe degenerative joint disease in the right shoulder and left knee, and moderate degenerative joint disease in the right knee. (R. 443). Dr. Ayinla also noted Plaintiff's May 29, 2016 arthroscopy of her right shoulder commenting that Plaintiff “did great!” (Id.). A follow-up appointment was scheduled for November 28, 2018. (Id.).
On November 28, 2018, Plaintiff had additional X-rays of the lumbar spine, which showed no change. (R. 417). Dr. Ayinla diagnosed Plaintiff with degenerative disc disease. (R. 450).
On January 15, 2019, Plaintiff visited Dr. Owusu with a four-day history of lumbar pain, reporting a pain level of 4 out of 10. (R. 462). Dr. Owusu's findings were consistent with his February 3, 2018 treatment notes, concluding Plaintiff suffered from right lumbar paraspinous musculature and decreased range of motion in her right knee. (R. 462-63). He prescribed acetaminophen. (R. 463). Plaintiff's BMI was measured at 34.19, and Dr. Owusu again advised Plaintiff to increase dietary efforts and exercise. (R. 462).
On February 1, 2019, Plaintiff returned to Dr. Owusu complaining of sharp shoulder pain that radiated to the elbow; she reported a pain level of 4 or 5 out of 10. (R. 464). Dr. Owusu found decreased range of motion of her right shoulder and prescribed acetaminophen. (R. 464 65). Plaintiff's BMI was measured at 34.37, and Plaintiff was advised again to continue dietary efforts and exercise. (Id.).
On October 14, 2019, Dr. Owusu saw Plaintiff again for ongoing lumbar pain that was sharp and radiated to the knee. (R. 475). Plaintiff reported a pain level of 4 or 5 out of 10. (Id.). Findings were consistent with prior treatment records indicating “right lumbar paraspinous musculature with trigger points,” “decreased range of motion with right knee,” and a BMI of 33.30. (R. 475-76). Dr. Owusu prescribed diclofenac sodium. (R. 476).
Dr. A. Periakaruppan, the State agency medical consultant, completed the Disability Determination Explanation form on September 24, 2018. (R. 96-98). Upon review of the records, the consultant determined that Plaintiff had two severe medically determinable impairments: “Osteo-arthrosis and Allied Disorders” and “DDD.” (R. 96). At the time of Dr. Periakaruppan's review, however, the record in the file contained only two physical examinations within the adjudicated period, and therefore, Dr. Periakaruppan found there was not enough evidence to make an RFC assessment. (R. 96-97). Because the form is incomplete and does not contain a discussion of what Plaintiff could still do despite her impairments, (R. 96-98), it does not qualify as a medical opinion and is not discussed further in this summary. See 20 C.F.R. § 404.1527(a)(1) (2017) (Medical opinions are “statements from acceptable medical sources that reflect judgments about the nature and severity of [the Plaintiff's] impairment(s), including [the Plaintiff's] symptoms, diagnosis and prognosis, what [the Plaintiff] can still do despite impairment(s), and [the Plaintiff's] physical or mental restrictions.”).
1. George E. Owusu, M.D. - Treating Physician
Dr. Owusu, a specialist in internal medicine, began treating Plaintiff in March 2014 at Gevans. (R. 453). Over the course of his treatment, he wrote letters regarding Plaintiff's ability to work on April 28, 2016, (R. 427), June 27, 2016, (R. 428), February 23, 2018, (R. 425), January 15, 2019, (R. 451), and December 20, 2019, (R. 477). Dr. Owusu also completed a Multiple Impairment Questionnaire on October 14, 2019 (“Owusu October 2019 MIQ”). (R. 453-57).
Plaintiff states that Dr. Owusu's treatment began in March 2018, (Docket No. 18 at 2), but the doctor's report clearly states that his treatment began in March 2014; therefore, the Court adopts the March 2014 date. (R. 254).
Dr. Owusu opined in letters dated April 28, 2016 and June 27, 2016, over a year prior to the AOD, that Plaintiff can work. (R. 427, 428). In April 2016 there were no work restrictions, (R. 427), but in June 2016, Plaintiff could not lift heavy objects due to severe backache and right shoulder strain, (R. 428). On February 23, 2018, Dr. Owusu stated that Plaintiff could not return to work until March 2, 2018 and should avoid heavy lifting. (R. 425). Then, on January 15, 2019, Dr. Owusu indicated that Plaintiff was being treated for severe bilateral knee, shoulder, and back pain, and had constant pain in multiple joints. (R. 451). He noted that Plaintiff underwent a right shoulder arthroscopy, was taking pain medication, and doing physical therapy. (Id.). Dr. Owusu opined that Plaintiff could not work until medically cleared. (Id.).
In the Owusu October 2019 MIQ, Dr. Owusu stated that he treated Plaintiff on a monthly basis from March 4, 2014 to October 14, 2019. (R. 453). He diagnosed her with bilateral shoulder strain, backache, osteoarthritis of both knees. (Id.). He noted that Plaintiff's primary symptoms were bilateral shoulder and knee pain that was aching and constant, worsened with movement, and aggravated by prolonged standing, sitting and bending. (R. 454). Dr. Owusu opined that Plaintiff's symptoms and related limitations applied as far back as September 28, 2017, (R. 457), and that Plaintiff was not a malingerer, (R. 453). He noted that Plaintiff was prescribed Duexis, Flexeril, tramadol and physical therapy. (R. 454). Dr. Owusu assessed that in an eight-hour day, Plaintiff could sit for two hours and stand or walk for less than one hour; lift and carry up to five pounds occasionally; and occasionally reach, handle and finger bilaterally. (R. 455-56). In addition, when sitting, Plaintiff needed to elevate both legs to waist level every two to three hours. (R. 455). Dr. Owusu opined that Plaintiff's pain, fatigue and other symptoms were severe enough to occasionally interfere with attention and concentration, that Plaintiff would need to take breaks lasting an hour every two hours, and that Plaintiff would be absent from work more than three times a month due to her impairments or treatment. (R. 456-57).
Finally, in December 2019, Dr. Owusu wrote a letter, in which he stated that Plaintiff was being treated for severe bilateral knee, shoulder and back pain, and had a right shoulder arthroscopy. (R. 477). He indicated that Plaintiff was in constant pain and that treatment included pain management, physical therapy and frequent orthopedic consultations. (Id.). He concluded that Plaintiff could not work at the time. (Id.).
2. Raji M. Ayinla, M.D. - Treating Physician
Dr. Raji M. Ayinla began treating Plaintiff in March 2018. (R. 432). Dr. Ayinla completed an MIQ on November 6, 2018 (“Ayinla November 2018 MIQ”). (R. 436).
In his MIQ, Dr. Ayinla stated that he had treated Plaintiff since March 26, 2018, and had last examined her on November 2, 2018. (R. 432). He diagnosed Plaintiff with (1) adhesive capsulitis of the right shoulder, (2) idiopathic aseptic necrosis of the right shoulder, (3) sciatica, and (4) severe generalized osteoarthritis. (Id.). He stated that Plaintiff's primary symptoms included severe and constant back, shoulder, hip, and bilateral knee pain with reduced range of motion and difficulty ambulating. (R. 433). Plaintiff's pain worsened with movement and prolonged sitting and standing. (Id.). Dr. Ayinla did not indicate when Plaintiff's symptoms or limitations began, (R. 436), but he did state that Plaintiff was not a malingerer, (R. 432). Plaintiff was prescribed tramadol for pain. (R. 433). Dr. Ayinla indicated that Plaintiff could sit for less than one hour and stand and/or walk for one hour in an eight-hour day; never lift or carry any amount of weight; and could occasionally reach, handle and finger, except that she could never or rarely reach with her right arm. (R. 434-35). Dr. Ayinla opined that Plaintiff suffered pain and fatigue that was severe enough to frequently interfere with attention and concentration, that Plaintiff would need to take breaks lasting between thirty to sixty minutes every thirty minutes, and that Plaintiff would be absent from work more than three times a month due to her impairments or treatment. (R. 435-36).
D. The ALJ Hearing
On January 7, 2020, Plaintiff appeared before ALJ Loewy in Jersey City, New Jersey, accompanied by her son. (R. 45, 49). Plaintiff's attorney appeared remotely. (R. 49). Vocational Expert (“VE”) Kathleen Basham testified at the hearing by telephone. (R. 78).
Plaintiff's son accompanied Plaintiff to the hearing because he thought he would be able to assist in translating. (R. 46). The ALJ did not permit her son to translate for Plaintiff but offered to postpone the hearing until an interpreter could be found. (R. 47). Plaintiff waived her right to an interpreter and chose to proceed with the hearing testifying on her own in English. (R. 48). At several points during the hearing, Plaintiff misheard or misunderstood questions being asked of her, and she was unable to present her answers clearly. The ALJ, however, took concrete and effective steps in repeating questions, confirming answers, and clarifying her understanding of Plaintiff's testimony. (See, e.g., R. 57-62, 76 (despite receiving initial testimony from Plaintiff that her employment at Dr. Jay's was as a “home attendant,” the ALJ revisited Plaintiff's employment history later in the hearing and clarified that Dr. Jay's was a clothing store, where Plaintiff worked “help[ing] customers.”)). Plaintiff's son did not testify at the hearing. (R. 79-80).
At the start of the hearing, ALJ Loewy commented that the record on file was “very, very slim,” with “a whole lot of imaging but [no] treatment notes.” (R. 51). The record was missing a function report and a work history report. (R. 56). Consistent with notice requirements in Social Security Ruling 17-4p: Titles II and XVI: Responsibility for Developing Written Evidence, 82 Fed.Reg. 46,339 (Oct. 4, 2017), Plaintiff's attorney submitted a letter six business days before the January 2020 hearing, informing the ALJ that treatment notes from Dr. Owusu, Dr. Ayinla and Plaintiff's physical therapist would not be available until after the hearing. (R. 51, 243-44). The ALJ directed Plaintiff to supplement the Record with the missing notes within three weeks. (R. 91). Plaintiff updated the Record with Dr. Owusu's treatment notes, (R. 458-78), but did not provide any additional treatment notes from Dr. Ayinla or from Plaintiff's physical therapist.
1. Plaintiff's Testimony
At the hearing, the ALJ questioned Plaintiff about her work history, her daily activities, her medical history and her functional limitations. Plaintiff testified she was not working at the time of the hearing, (R. 56), but prior to the AOD, Plaintiff worked as a babysitter, home health aide, and customer service representative “working the floor” at Dr. Jay's, a clothing store, (R. 60, 76, 81-82). Plaintiff earned her certification as a home health aide in 2006 after she was trained on issues including safety control, infection control, and universal control, and passed a written test. (R. 53-55). Plaintiff found the written test difficult “because of [her] arm,” but was able to read, understand and answer the questions written in English. (R. 55).
Plaintiff testified she spent most of her days “in the house” because she did not feel well enough to do anything else, and she “walk[ed] around the house” because she “can't sit down [for] long.” (R. 62). She can do laundry and shop for groceries with the assistance of her son. (R. 63).
Plaintiff testified that between September 2017 and June 2018, Plaintiff was receiving treatment relating to her disabilities from Dr. Owusu, Dr. Ayinla, and Dr. Silverman, (R. 63-66), and she was unable to work because she was “not feeling good,” (R. 63). Plaintiff testified that during the Eligibility Period, she experienced a lot of pain in her shoulder due to her arthritis, (R. 70-71), and she “ha[d] limitations,” (R. 71). She testified that Dr. Silverman performed surgery on her right shoulder in May 2018, (R. 66-67), but her shoulder had “worse[ned]” since the surgery despite physical therapy, (R. 67-68, 71). She underwent X-rays in September 2019 but had not yet discussed future surgery for her shoulder. (R. 68).
Plaintiff testified that during the relevant period she had pain that radiated from her back, through her knees, to her feet. (R. 72). Plaintiff went to physical therapy for her lower back pain until she no longer had medical insurance in March 2019, (R. 69), but had resumed physical therapy shortly before the hearing because her husband paid for her medical insurance, (R. 6970). Plaintiff explained that her feet burned as if on fire, and that her left knee was worse than her right. (R. 72). The pain in Plaintiff's knees interfered with her ability to sit, kneel, or get up, making everyday tasks-like using the toilet and taking the stairs-difficult and painful. (R. 7274, 77). The most comfortable position for Plaintiff is reclining with her feet up. (R. 77-78). Plaintiff testified that although Dr. Silverman spoke to her about performing surgery on her knees, Plaintiff declined out of concern that the result would be similar to that of her shoulder surgery, and that her knees would be worse and prevent her from walking. (R. 72).
In addition, Plaintiff testified she took medication with uncomfortable side effects, including one that caused her to sleep during the day. (R. 74-75).
The record is unclear as to which of Plaintiff's medication caused her to sleep during the day. At the hearing, Plaintiff held up a specific medication to show the ALJ, but it was unidentified in the transcript, and the ALJ ordered Plaintiff's attorney to provide a pharmacy log for the Eligibility Period. (R. 75-76).
Plaintiff also testified that she was able to stand for five minutes and walk for “at least ten minutes” before she had to sit down, could sit no longer than twenty minutes due to pain, and could only lift or carry five pounds. (R. 66-67). Plaintiff testified that she was right-handed, (R. 53), and experienced limitations reaching with her right arm, (R. 71).
2. The Vocational Expert's Testimony
VE Kathleen Basham (“VE Basham”) testified that she reviewed Plaintiff's file prior to the hearing, (R. 80-81), but because a work history report was not included in Plaintiff's original file, (R. 56-57), the ALJ summarized Plaintiff's work history for the VE at the hearing, (R. 81). VE Basham identified Plaintiff's past relevant work as cashier checker (211.462-014) and nurse assistant (355.674-014). (R. 82). She testified that the cashier checker is performed at “light strength,” and nurse assistant is performed at “medium strength.” (Id.).
The ALJ posed a hypothetical to VE Basham, asking her to assume an individual of Plaintiff's age, education and work history, with the following limitations:
do[ing] no more than sedentary work; occasionally climbing ramps or stairs, but generally just a few steps, rarely full flights[;] never climbing ladders, ropes, or scaffolds[;] occasionally balancing or stooping[;] never kneeling, crouching, or crawling[;] frequent[ly] reaching, occasional[ly] overhead reaching with the right upper extremity[;] occasional[ly] push[ing], pull[ing] with the right upper extremity[; and having] no foot control . . .(R. 82-83). VE Basham testified that such an individual could work as an addresser (209.587010), tube operator (239.687-014), and cutter-paster (249.587-014). (R. 84). There were approximately 34,000 addressor jobs, 11,000 tube operator jobs, and 55,000 cutter-paster jobs available in the national economy. (Id.). VE Basham confirmed that Plaintiff could perform these jobs even with the additional combined limitations of: “no overhead reaching with the right upper extremity,” “no push[ing] or pull[ing] with the right upper extremity,” and “requir[ing] a . . . six-inch foot stool at her workstation that while she was seated she could put her feet on.” (R. 84-85).
VE Basham clarified, however, that “[e]ach of those positions require frequent handling,” (R. 88), so any handling limitations would prevent Plaintiff from working, including being able to reach only occasionally in all directions bilaterally, (R. 87); to only occasionally perform fine manipulation with the right dominant upper extremity, (id.); to only occasionally handle objects bilaterally, (R. 88); and to only occasionally handle with the right dominant upper extremity, (id.).
The VE also testified that being off task “in excess of 15% [of the time] is not tolerated,” (id.), and being absent “in excess . . . of one day per month would not be tolerated in competitive employment,” (R. 88-89). If the individual could only sit for 30 minutes at a time before needing to stand and walk for 15 minutes, she could not work due to the amount of time off task. (R. 86). However, if the individual only needed to stand and stretch for three minutes at a time, while remaining on task, she could perform the three jobs identified. (R. 89). Similarly, if the individual were limited to 15 minutes of standing or walking before sitting down for a few minutes, while staying on task, then she also could still work as addresser, tube operator, and cutter-paster. (R. 89-90).
E. The ALJ's Decision
ALJ Loewy determined in her March 26, 2020 decision that Plaintiff met the insured status requirements of the Social Security Act (“Act”) through June 30, 2018. (R. 12, 17). ALJ Loewy then applied the five-step procedure established by the Commissioner, see 20 C.F.R. §§ 404.1520(a) (2012), for evaluating disability claims. (R. 16-23). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since September 28, 2017 through her DLI on June 30, 2018. (R. 18). At step two, the ALJ found that Plaintiff had the following severe impairments: (1) right shoulder osteoarthritis status-post arthroscopy, (2) osteoarthritis in the bilateral knees, (3) degenerative disc disease of the lumbar spine, and (4) obesity. (Id.).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). (R. 18). The ALJ specifically considered Listing 1.02 but found that Plaintiff did not meet this listing because she had “no inability to ambulate effectively,” nor did she have an “inability to perform fine and gross movements effectively.” (Id.). The ALJ also considered Listing 1.04 but found that “the records [did] not establish that [Plaintiff] had positive straight leg raise tests in the sitting and supine position bilaterally or that she experienced motor, reflex, or sensory loss.” (Id.). Finally, the ALJ determined that the “functional effects of the [Plaintiff]'s obesity [did] not equal any medical listing.” (Id.).
The ALJ then determined that Plaintiff had the Residual Functional Capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), except:
Sedentary work requires an ability to “lift[] no more than 10 pounds at a time and occasionally lift[] or carry[] articles like Docket files, ledgers, and small tools.” 20 C.F.R. § 404.1567(a).
after sitting for 30 minutes, the [Plaintiff] may stand or stretch at the workstation for two to three minutes, while remaining on task, before resuming sitting; may walk or stand up to 15 minutes at a time while on task, before resuming sitting. The [Plaintiff] can occasionally climb ramps and stairs, but generally just a few steps, rarely full flights. The [Plaintiff] can never climb ladders, ropes or scaffolds. The [Plaintiff] is limited to occasional balancing or stooping. The [Plaintiff] can never kneel, crouch or crawl. The [Plaintiff] can frequently reach, but can never reach overhead with the right upper extremity. The [Plaintiff] is limited to never pushing or pulling with the right upper extremity. The [Plaintiff] is limited to never operating foot controls; the claimant may use a six-inch stepstool while seated at the workstation and while on task.(R. 18-19).
In arriving at the RFC, the ALJ determined that although Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, Plaintiff's statements concerning the intensity, persistence, and limiting effects of the symptoms were “not entirely consistent with the medical evidence and other evidence in the record.” (R. 19). The ALJ outlined Plaintiff's “long-standing history of orthopedic problems” in a recitation of the medical evidence. (R. 20-21).
The ALJ found Dr. Owusu's June 2016 opinion “persuasive” because it was “generally consistent and supported by the [Plaintiff]'s shoulder impairment.” (R. 21). The ALJ considered Dr. Owusu's February 23, 2018 opinion stating that Plaintiff “was unable to lift heavy objects and could return to work on March 2, 2018,” and portions of Dr. Owusu's October 2019 MIQ that stated that Plaintiff “retained the ability to perform a reduced range of sedentary work with additional postural and manipulative limitations.” (Id.). However, the ALJ found unpersuasive Dr. Owusu's October 2019 opinion that Plaintiff “could only sit for two hours and stand or walk for less than one hour, could lift five pounds, needed to elevate her legs to waist level, could only occasionally manipulate with her upper extremities, would need frequent unscheduled breaks and would miss three days a month” because Dr. Owusu's assessment was “too restrictive and [was] not supported or consistent with treatment records, which consistently reflect that [Plaintiff] retained full range of motion in her lumbar spine with intact muscle strength and sensory functionality.” (Id.). The ALJ did not address Dr. Owusu's other medical opinions in her decision.
The ALJ determined that the Ayinla November 2018 MIQ was also “unpersuasive,” finding that Dr. Ayinla's determination that Plaintiff was “unable to perform sedentary work, in that she could sit less than one hour, stand/walk less than one hour, could not lift or carry anything, and could only occasionally manipulate with her upper extremities” was “too restrictive and [was] not supported or consistent with treatment records, which consistently reflect that the [plaintiff] retained full range of motion in her lumbar spine with intact muscle strength, sensory, and ambulation skills.” (Id.).
The ALJ also addressed the September 2018 findings of the state agency medical consultant, A. Periakaruppan, M.D., pursuant to Social Security Ruling 96-6p. The ALJ found Dr. Periakaruppan's opinion “non-persuasive” because Dr. Periakaruppan's conclusion that there was insufficient evidence to evaluate Plaintiff's functioning was “inconsistent and unsupported by subsequent medical evidence submitted.” (Id.).
Finally, the ALJ determined that Plaintiff was unable to perform her past relevant work as cashier checker and nurse's assistant, (R. 22), but found that she could perform other work as an addresser, a tube operator, and a cutter paster, (R. 22-23). The ALJ therefore concluded that Plaintiff was not disabled under the Act. (R. 23).
II. DISCUSSION
Plaintiff argues that remand is warranted due to the ALJ's (1) flawed rejection of the treating physicians' medical opinions, (2) unsupported RFC finding, and (3) failure to properly evaluate Plaintiff's subjective statements. (Docket No. 15 at 9-17; No. 18 at 2-5). Defendant counters that the decision was supported by substantial evidence. (Docket No. 17 at 14-25).
All page citations to the parties' briefs refer to the page numbers assigned upon the electronic filing of the documents.
A. Legal Standards
1. “Disability” Under the Act
A claimant is disabled if she “is unable . . . ‘to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.'” Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)).
The Social Security Administration (“SSA”) has enacted a five-step sequential analysis to determine if a claimant is eligible for benefits based on a disability:
(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a [RFC] assessment, whether the
claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's [RFC], age, education, and work experience.McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008)); 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)).
The claimant has the general burden of proving that they are statutorily disabled “and bears the burden of proving his or her case at steps one through four.” Cichocki, 729 F.3d at 176 (quoting Burgess, 537 F.3d at 128). At step five, the burden then shifts “to the Commissioner to show there is other work that [the claimant] can perform.” Brault v. Soc. Sec. Admin. Comm'r, 683 F.3d. 443, 445 (2d Cir. 2012).
2. Standard of Review
When reviewing an appeal from a denial of disability insurance benefits, the court's review is “limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); see also 42 U.S.C. § 405(g). The Court does not substitute its judgment for the agency's or “determine de novo whether [the claimant] is disabled.” Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (alteration in original) (quoting Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)).
Such a deferential standard, however, is not applied to the Commissioner's conclusions of law. Where the proper legal standards have not been applied and “might have affected the disposition of the case, [the] court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). Therefore, the court must independently determine if the Commissioner applied the correct legal standards in determining that plaintiff was not disabled. “Failure to apply the correct legal standards is grounds for reversal.” Pollard, 377 F.3d at 189 (quoting Townley, 748 F.2d at 112). “Where there are gaps in the administrative record or the ALJ has applied an improper legal standard,” remand to the Commissioner “for further development of the evidence” is appropriate. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (internal quotations omitted).
3. The ALJ's Duty to Develop the Record
“Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.” Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)); Rodriguez ex rel. Silverio v. Barnhart, No. 02-CV-5782 (FB), 2003 WL 22709204, at * 3 (E.D.N.Y. Nov. 7, 2003) (“The responsibility of an ALJ to fully develop the record is a bedrock principle of Social Security law.”) (citing Brown v. Apfel, 174 F.3d 59 (2d Cir. 1999)). Where the ALJ fails to develop the record, remand is appropriate. Rosa, 168 F.3d at 82-83. The ALJ's duty to develop the record remains regardless of whether the claimant is represented by counsel. Atkinson v. Barnhart, 87 Fed.Appx. 766, 768 (2d Cir. 2004).
The court must determine “[w]hether the ALJ has satisfied [her] duty to develop the record,” before determining whether the ALJ's final decision is supported by substantial evidence. Smoker v. Saul, 19-CV-1539 (AT) (JLC), 2020 WL 2212404, at *9 (S.D.N.Y. May 7, 2020); see also Scott v. Astrue, No. 09-CV-3999 (KAM)(RLM), 2010 WL 2736879, at *12 (E.D.N.Y. July 9, 2010) (“[T]he court must first be satisfied that the ALJ provided plaintiff with ‘a full hearing under the Secretary's regulations' and also fully and completely developed the administrative record.”) (quoting Echevarria, 685 F.2d at 755).
B. The ALJ's Consideration of the Medical Opinions
When determining a claimant's RFC, “an ALJ must consider all medical opinions” received. Manzella v. Comm'r of Soc. Sec., CIVIL ACTION NO. 20 Civ. 3765 (VEC) (SLC), 2021 WL 5910648, at *11 (S.D.N.Y. Oct. 27, 2021), report and recommendation adopted, 2021 WL 5493186 (S.D.N.Y. Nov. 22, 2021). “A medical opinion is a statement from a medical source about what [a claimant] can still do despite [his or her] impairment(s) and whether [the claimant] ha[s] one or more impairment-related limitations or restrictions in ... [the claimant's] ability to perform [the physical and mental] demands of work activities.” 20 C.F.R. § 404.1513(a)(2) (2017).
On January 18, 2017, the SSA issued comprehensive revisions to the regulations that govern the evaluation of medical opinions for claims filed on or after March 27, 2017. See 82 Fed.Reg. 5,844 (Jan. 18, 2017). The new regulations end the treating physician rule and no longer require the ALJ to “defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s), . . . including those from [a claimant's] medical sources.” 20 C.F.R. § 404.1520c(a) (2017); see Manzella, 2021 WL 5910648, at *11. Instead, the ALJ must consider all of the medical opinions and determine how persuasive she finds them. See 20 C.F.R. § 404.1520c(b). In conducting this evaluation, the ALJ must consider five factors: (1) supportability, (2) consistency, (3) the medical source's relationship with the claimant, (4) the medical source's specialization, and (5) any “other factors that tend to support or contradict a medical opinion.” Id. § 404.1520c(c)(1)-(5).
The first two factors-supportability and consistency-are the “most important” in determining how persuasive an ALJ finds a medical source's opinions. Id. § 404.1520c(b)(2). As a result, the ALJ must “explain how [she] considered the supportability and consistency factors,” but is not required to explain how she considered the remaining factors. Id. With respect to supportability, the new rule provides that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support . . . her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” Id. § 404.1520c(c)(1). “Simply put, supportability is an inquiry confined to the medical source's own records that focuses on how well a medical source supported and explained their opinion.” Vellone ex rel. Vellone v. Saul, 1:20-cv-00261 (RA) (KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021), report and recommendation adopted, 2021 WL 2801138 (S.D.N.Y. July 6, 2021). With respect to consistency, the new regulations provide that the more consistent a medical opinion is with other evidence in the medical record, the more persuasive it will be. 20 C.F.R. § 404.1520c(b)(2). “[C]onsistency is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record.” Vellone, 2021 WL 319354, at *6 (2021).
“If the ALJ fails adequately to explain the supportability or consistency factors, or bases her explanation upon a misreading of the record, remand is required.” Rivera v. Comm'r of Soc. Sec. Admin., 19-CV-4630 (LJL) (BCM), 2020 WL 8167136, at *14 (S.D.N.Y. Dec. 30, 2020), report and recommendation adopted, 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021) (internal quotation and citation omitted). An ALJ is “not required to articulate how [she] considered each medical opinion . . . from one medical source individually.” 20 C.F.R. § 404.1520c(b)(1).
Here, the Record included medical opinions from two sources: Dr. Owusu and Dr. Ayinla. Dr. Owusu was Plaintiff's treating physician since March 2014. (R. 453). Dr. Ayinla had been treating Plaintiff since March 2018. (R. 432). The ALJ considered three of Dr. Owusu's medical opinions from June 2016, February 2018, and October 2019, and one medical opinion from Dr. Ayinla dated November 2018. (R. 21). The ALJ found Dr. Owusu's June 2016 opinion persuasive, and also considered Dr. Owusu's February 2018 opinion. (R. 21). On the other hand, the ALJ found the Owusu October 2019 MIQ and the Ayinla November 2018 MIQ unpersuasive, and the ALJ used only three pages of medical records, (R. 369, 472, 476), to support her determination that the limitations set forth in both MIQs were “too restrictive” and inconsistent with treatment records, which “consistently reflected that [Plaintiff] retained full range of motion in her lumbar spine with intact muscle strength[,] . . . sensory functionality,” and “ambulation skills.” (R. 21).
In her decision, the ALJ stated that she “considered” the February 2018 medical opinion, but was silent on whether she found it persuasive. (R. 21). The February 2018 opinion stated that Plaintiff should “avoid heavy lifting” and could return to work on March 2, 2018. (R. 425). Defendant asserts the ALJ's reference to it means “she implicitly considered [it], and found [it] persuasive,” (Docket No. 17 at 21), and Plaintiff does not dispute this understanding of the facts, (see Docket Nos. 15, 18). Therefore, the Court will rely on the undisputed facts of the Record. See also Saviano v. Chater, 956 F.Supp. 1061, 1066-67 (E.D.N.Y. 1997) (“In considering a motion for judgment on the pleadings, the Court must accept as true all of the non-movant's well pleaded factual allegations, and draw all reasonable inferences therefrom in favor of the non-movant.”) (citing Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994)).
Plaintiff argues that the ALJ's evaluation of the medical opinions was flawed because (1) she “failed to properly consider the other evidence that [was] consistent with the treating source opinions,” and (2) she “impermissibly substituted her interpretation of the medical findings for the opinions provided by the treating doctors.” (Docket No. 15 at 10-12). Plaintiff further asserts that the ALJ's decision does not comply with the requirement that she articulate how she considered the consistency and supportability of the medical opinions, the treating relationship between Plaintiff and her treating physicians, including the frequency, length and nature of treatment. (Id. at 13) (citing 82 Fed.Reg. 5,844 (2017)). Defendant argues in opposition that the ALJ “reasonably found [Dr. Owusu's] opinion unpersuasive” because it was “inconsistent with, and not supported by, the record overall,” relying on the medical record citations in the ALJ's decision. (Docket No. 17 at 22). Defendant also maintains that both Drs. Owusu and Ayinla's opinions were irrelevant to the ALJ's determination because they included consideration of symptoms from after the DLI, and therefore, could not be “the basis for determination of entitlement to disability benefits.” (Id. at 23). In reply, Plaintiff argues this defense is a “post hoc rationalization[] for agency action.” (Docket No. 18 at 2) (citing Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)). Plaintiff also asserts that because both opinions were based on treatment that started before the DLI, a reference to imaging completed a few months after her DLI should not make the opinions irrelevant when “there is no evidence [Plaintiff] suffered any traumatic injury or other decompensation between the time of her [DLI] and the MRIs.” (Docket No. 18 at 2-3).
I respectfully recommend finding that the ALJ erred in finding the Ayinla November 2018 MIQ and the Owusu October 2019 MIQ unpersuasive. The ALJ provided insufficient reasoning in support of her decision, and she failed to adequately address evidence that supported these opinions. Although the ALJ need not reconcile every ambiguity and inconsistency in the medical record, Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984), her “failure to acknowledge relevant evidence or to explain its implicit rejection is plain error.” Ceballos v. Bowen, 649 F.Supp. 693, 702 (S.D.N.Y. 1986) (citing Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1045 (2d Cir.1984)). Indeed, the ALJ cannot “‘pick and choose' evidence in the record that supports [her] conclusions.” Wiggins v. Barnhart, No. 01 Civ. 4285(GEL), 2002 WL 1941467, at *7 (S.D.N.Y. Aug. 21, 2002). Here, the ALJ avoided substantial pieces of evidence, selecting a few pages of treatment records (two of which postdated the DLI), to support her conclusion with very limited elaboration.
In rejecting these medical opinions, the ALJ cited to only three pages of treatment notes: (1) a February 2018 ER record stating “Back Details: normal shape; [range of motion] intact; strength intact,” (R. 369); (2) a January 2019 SOAP (“Subjective, Objective, Assessment, and Plan”) note from Dr. Owusu indicating “BACK: Normal curvature, no vertebral tenderness, motor function, sensation to light touch, and DTR's intact,” (R. 472); and (3) an October 2019 SOAP note from Dr. Owusu, with identical language to the January 2019 SOAP note, (R. 476; see also R. 470). (R. 21). The ALJ's overreliance on these few pages of treatment notes is a “significant example of the ALJ's failure to consider the record with adequate care.” Hartnett v. Apfel, 21 F.Supp.2d 217, 223 (E.D.N.Y. 1998). This is particularly egregious here, where the ALJ only refers to these pages to undermine all opined limitations regarding (1) the amount of time Plaintiff could sit, (2) the amount of time Plaintiff could stand and walk, (3) Plaintiff's need to elevate her legs, (4) Plaintiff's ability to occasionally manipulate her upper extremities, and (5) Plaintiff's need for unscheduled breaks and absences. (R. 21). The cited treatment records contained no findings directly regarding the extent of Plaintiff's ability to sit, her ability to walk, her need for leg elevation, or her need for unscheduled breaks and absences. (See R. 369, 470). In fact, they undermine the ALJ's rejection of opinions regarding Plaintiff's limited ability to manipulate upper extremities, because there is a note on “decreased [range of motion] due to pain [in] right shoulder.” (R. 369).
Although the ALJ refers to language in treatment records from after the DLI (R. 472, 476), Defendant points out identical language regarding Plaintiff's “normal curvature, no vertebral tenderness, motor function, sensation to light touch, and DTR's intact” is captured in February 2018 treatment records, (R. 470), which the Court will use instead of the post-DLI treatment notes moving forward. This does not change the fact that the ALJ cited to treatment notes outside the Eligibility Period in her analysis, but the Court will consider the 2018 treatment note as part of its comprehensive review of the Record to “glean the rationale” of the ALJ's decision. See Cichocki v. Astrue, 534 Fed.Appx. 71, 76 (2d Cir. 2013) (finding an ALJ's failure to discuss every aspect of her analysis did not require remand when “the record evidence permits us to glean the rationale of the ALJ's decision.”).
Furthermore, there is evidence in the Record that supports Dr. Owusu's and Dr. Ayinla's medical opinions that the ALJ does not adequately address. “[W]e defer to the Commissioner's resolution of conflicting evidence,” Cage, 692 F.3d at 122, unless upon review of the entire record, the Court determines that the ALJ did not “fairly evaluate[]” the evidence, Brown, 174 F.3d at 62 (internal quotations omitted). Here, the ALJ failed to adequately address whether the evidence of the condition of Plaintiff's back, including signs of “[r]ight lumbar paraspinous musculature with trigger points,” (R. 458; see also R. 470), and the ALJ's own finding that Plaintiff's degenerative disc disease was a severe impairment, (R. 18), affected her functional ability. Courts faced with similar conditions have remanded for further review. See, e.g., Dailey v, Barnhart, 277 F.Supp.2d 226 (W.D.N.Y. 2003) (remanding when, inter alia, ALJ's decision was flawed for ignoring significant evidence of degenerative disk disease on the record); Pereira v. Astrue, 279 F.R.D. 201 (E.D.N.Y. 2010) (remanding where, despite reports of Plaintiff's ability to ambulate independently, heel-to-toe gait, negative straight leg test and well leg test, the ALJ failed to address findings of “decreased lumbar motion,” sprain, and nerve pain in Plaintiff's legs); c.f. Mollo v. Branhart, 305 F.Supp.2d 252, 262-63 (E.D.N.Y. 2004) (affirming ALJ's rejection of medical opinion when supported by another medical opinion, and MRI studies “did not reveal any disc herniations or compression of the nerve roots or thecal sac.”). In addition, other medical evidence showed poor function in Plaintiff's knees, legs and feet that could impact her ability to walk, including decreased range of motion in her right knee, (R. 458, 470), a “[s]prain of unspecified site of knee and leg,” (R. 459, 461, 470), and symptoms of “tingling and numbness” in both legs, (R. 368). The ALJ further failed to account for evidence in the Record regarding Plaintiff's ability to lift objects and manipulate her upper extremities that included a diagnosis of “moderate-to-severe degenerative joint disease” in her right shoulder, (R. 449; see also R. 374-75), “severe impingement” of the right shoulder, (R. 374-75), “extensive degenerative changes” to the shoulder joint with “marked narrowing, sclerosis and prominent spur formation” and signs of prior dislocations, (R. 437), “decreased [range of motion] due to pain” in her right shoulder, (R. 369, 372), and “[s]prains and strains of unspecified site of shoulder and upper arm,” (R. 476).
This failure warrants remand because courts in this Circuit have found legal error when an ALJ rejects a medical opinion without addressing record evidence that corroborate the medical opinion. See Steficek v. Barnhart, 462 F.Supp.2d 415, 419-22 (W.D.N.Y. 2006) (finding error when the ALJ ignored evidence that was consistent with the medical opinion and, therefore, “disregarded those opinions for little reason other than that they were inconsistent with his own assessment”) (emphasis in original); Sublette v. Astrue, 856 F.Supp.2d 614, 619 (W.D.N.Y. 2012) (finding that the ALJ erred when he failed to address treatment records consistent with the medical opinion); Sachs v. Astrue, 567 F.Supp.2d 423, 430 (W.D.N.Y. 2008) (finding error in ALJ's determination that physician's opinion was not entitled to controlling weight when the record contained “appreciable objective medical evidence” in support of the physician's opinions of plaintiff's condition).
Although these cases examine medical opinions when the Treating Physician Rule was applicable, their findings of error when an ALJ “cherry-picks” evidence remains good law since even “under the old rule, an ALJ had to determine whether a treating physician's opinion was supported by well-accepted medical evidence and not inconsistent with the rest of the record before controlling weight could be assigned.” See Acosta Cuevas v. Comm'r of Soc. Sec., 20-CV-0502 (AJN) (KHP), 2021 WL 363682, at *9 (S.D.N.Y. Jan. 29, 2021), report and recommendation adopted, 2022 WL 717612 (S.D.N.Y. Mar. 10, 2022) (surveying Second Circuit district court level cases considering the new regulations and concluding that they show that “the essence” of the treating physician rule “remains the same, and the factors to be considered in weighing the various medical opinions in a given claimant's medical history are substantially similar”). See also Amber H. v. Saul, No. 3:20-CV-490 (ATB), 2021 WL 2076219, at *4 (N.D.N.Y. May 24, 2021) (noting that the two “most important factors for determining the persuasiveness of medical opinions are consistency and supportability,” which are the “same factors” that formed the foundation of the treating physician rule); Andrew G. v. Comm'r of Soc. Sec., No. 3:19-CV-0942 (ML), 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (noting that “consistency and supportability” were “the foundation of the treating source rule.”).
Moreover, courts remand for further review when the ALJ “ignore[s] parts of the record that are probative of the claimant's disability claim.” Sutherland v. Barnhart, 322 F.Supp.2d 282, 289 (E.D.N.Y. 2004). See also Kuhaneck v. Comm'r of Soc. Sec., 357 F.Supp.3d 241, 248 (W.D.N.Y. 2019) (“In light of the evidence in the record supporting [the doctor's] assessment of Plaintiff's limitations, it was error for the ALJ to reject those assessed limitations without further explanation.”). Here, treatment records noted persistent symptoms of “back pain [that] radiate[d] down [her] legs” that “worse[ned] on walking,” (R. 368; see also R. 371-72, 459, 469), as well as reports of chronic right shoulder pain that “radiat[ed] down her arm,” (R. 368-69), which induced limited range of motion, (id.), and was “aggravated by lifting heavy objects,” (R. 368). Plaintiff remained consistent in her testimony, noting she should not “sit down for long,” (R. 62), and even in her limited English, managed to convey that she “ha[d] limitations” due to the pain in her shoulder caused by arthritis, (R. 71), including difficulties taking a written test “because of [her] arm,” (R. 55).
Defendant maintains that the ALJ's finding of “full range of motion in [Plaintiff's] back with intact muscle strength and sensation and without tenderness” was sufficient grounds to reject the limitations set forth in Dr. Owusu's and Dr. Ayinla's medical opinions. (Docket No. 17 at 22) (citing R. 20). However, this is not enough because the ALJ failed to adequately explain why she disregarded the evidence that supported the limitations set forth in the medical opinions. See Montanez v. Berryhill, 334 F.Supp.3d 562, 565 (W.D.N.Y. 2018) (“[T]o the extent that the ALJ did discuss some evidence which he believed supported his conclusion that plaintiff has at least moderate limitations, he failed to sufficiently explain his decision not to credit any of the evidence of greater than moderate limitations.”). The critical problem here is that the ALJ simply states in a conclusory fashion that her RFC determination “is supported by treatment records, consultative examination findings, opinion evidence, and hearing testimony,” but she does not cite to any opinion evidence or consultative examinations to support her decision, and she fails to explain why she disregarded other evidence that supports the medical opinions in the Record. (R. 22). See Balsamo v. Chater, 142 F.3d 75, 80-81 (2d Cir. 1998) (finding ALJ erred in rejecting medical opinions when she “did not cite any [other] medical opinion to dispute the treating physicians' conclusions” about Plaintiff's limitations) (emphasis in original); Lopez v. Comm'r of Soc. Sec., No. 13-CV-0979 (JFB), 2014 WL 4700231, at *15 (E.D.N.Y. Sept. 22, 2014) (remand required where the ALJ failed to address that treating physician's opinion was “corroborated to varying degrees by the conclusions of other physicians who examined plaintiff”). The purpose of medical opinions is to help convert “a medical diagnosis into a form” about Plaintiff's limitations, “which may be the basis for [the ALJ's] nonmedical opinion on suitable work.” Dunbar v. Califano, 454 F.Supp. 1261, 1266 (W.D.N.Y. 1978).
Defendant cites additional treatment notes in the Record to support the ALJ's position in finding Plaintiff's subjective statements not credible. (Docket No. 17 at 20). To the extent these additional citations refer to treatment notes outside the Eligibility Period-i.e., evidence of Plaintiff's “normal gait” (see R. 292 (Sept. 5, 2017), 296 (July 11, 2017), 354 (Aug. 1, 2017), 391 (Oct. 18, 2016))-the Court considered them to “glean the rationale” of the ALJ's decision, Cichocki, 534 Fed.Appx. at 76.
Courts have found harmless error when an ALJ's improper assessment of medical opinions is cured by the ALJ's more comprehensive analysis of the record in her RFC discussion. See, e.g., Ryan v. Astrue, 650 F.Supp.2d 207, 217 (N.D.N.Y. 2009). ALJ Loewy's mere recitation of the medical history as support for her RFC assessment, however, is insufficient. The decision is devoid of any explanation for why the ALJ found Plaintiff could sit “for 30 minutes before standing or stretching for two to three minutes while remaining on task” and “walking or standing 15 minutes at a time while on task.” (R. 18). Without more, the Court cannot conduct a meaningful review. “[T]he ALJ is required to provide rationale in the written decision sufficient to allow a reviewing court to conduct an adequate review of [her] findings.” Pamela P. v. Saul, 3:19-CV-575 (DJS), 2020 WL 2561106, at *4 (N.D.N.Y. May 20, 2020); see also Hamedallah ex rel. E.B. v. Astrue, 876 F.Supp.2d 133, 142 (N.D.N.Y. 2012) (“A court cannot conduct a review that is both limited and meaningful if the ALJ does not state with sufficient clarity the legal rules being applied and the weight accorded the evidence considered.”) (internal quotations omitted). “The ALJ must build an accurate and logical bridge from the evidence to [her] conclusion to enable a meaningful review.” Hickman ex rel. M.A.H. v. Astrue, 728 F.Supp.2d 168, 173 (N.D.N.Y. 2010) (internal quotations omitted). The lack of explanation leaves the Court without an understanding of how the ALJ considered the supporting evidence, if at all, in her analyses of the medical opinions.
Consequently, the ALJ has failed to adequately evaluate the supportability or consistency factors, as required by the regulations. See Acosta Cuevas v. Comm'r of Soc. Sec., 20-CV-0502 (AJN) (KHP), 2021 WL 363682, at *15 (S.D.N.Y. Jan. 29, 2021), report and recommendation adopted, 2022 WL 717612 (S.D.N.Y. Mar. 10, 2022) (finding that the ALJ failed to apply the new SSA regulations by “ignor[ing] certain pieces of evidence.”); Sutton v. Comm'r of Soc. Sec., 20-CV-3441 (PKC), 2022 wl 970748, at *5-6 (E.D.N.Y. Mar. 31, 2022) (finding, under post Treating Physician Rule regulations, that the ALJ improperly evaluated the supportability and consistency of a doctor's opinion when rejecting it, given that the doctor's “treatment notes reflect many-if not all-of the ‘signs and symptoms' he listed” and “especially given his relationship with Plaintiff as her treating psychiatrist”); Prietro v. Comm'r of Soc. Sec., No. 20-CV-3941 (RWL), 2021 WL 3475625, at *14 (S.D.N.Y. Aug. 2, 2021) (holding under new regulations that the ALJ failed to make a proper analysis of the supportability and consistency factors, where, in part, the ALJ's “selective and unexplained weighting of the medical opinions ... violate[d] the principle against cherry-picking.”). Such a failure is grounds for remand. Rivera, 2020 WL 8167136, at *14. Accordingly, I respectfully recommend remanding this matter to the ALJ for proper consideration of the medical opinions.
Defendant also argues that the ALJ properly discounted the opinions of Dr. Owusu and Dr. Ayinla because it is unclear if they relate to Plaintiff's Eligibility Period. (Docket No. 17 at 23-24). However, the decision does not mention this as a reason the ALJ rejected these opinions. Therefore, the Court will not consider it here. See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962) (“The courts may not accept appellate counsel's post hoc rationalizations for agency action.”); Snell, 177 F.3d at 134 (noting that while a treating physician's finding unrelated to the period of coverage could be “an acceptable reason for a decision by the Commissioner not to give much weight” to the doctor's finding, it was “not in fact . . . [the] reason” offered and therefore, not a rationalization for consideration.).
C. The ALJ's RFC Assessment
Plaintiff argues that ALJ Loewy erred in her RFC assessment by failing to “cite to any specific medical facts [or] even persuasive non-medical evidence that supports the RFC.” (Docket No. 15 at 14) (emphasis in original). Plaintiff also maintains that because the ALJ did not find any of the medical opinions regarding Plaintiff's RFC limitations persuasive, the ALJ had improperly substituted her own opinion for that of a physician in determining the RFC. (Id.). Defendant counters that the ALJ's RFC determination was supported by substantial evidence because “the ALJ properly evaluated all the medical and non-medical evidence of record, including the persuasiveness of the medical opinions. . .” and that the RFC was “consistent with the overall record.” (Docket No. 17 at 21, 24). Defendant also contends that evidence of a plaintiff's “moderate limitation” in sitting or standing did not bar an ALJ from determining that sedentary work could be performed, and therefore, any error with assessing the medical opinion was effectively harmless since the ALJ's RFC determination accounted for such limitations by reducing the RFC to sedentary work. (Id. at 24-25).
The RFC is “the most [a person] can still do despite [their] limitations.” 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.” Rivera v. Comm'r of Soc. Sec., 368 F.Supp.3d 626, 640 (S.D.N.Y. 2019) (citing 20 C.F.R. § 404.1545(a)(3), 416.945(a)(3)). When determining the RFC, the ALJ considers “a claimant's physical abilities, mental abilities, [and] symptomatology, including pain and other limitations that could interfere with work activities on a regular and continuing basis.” Weather v. Astrue, 32 F.Supp.3d 363, 376 (N.D.N.Y. 2012) (citing 20 C.F.R. § 404.1545(a)). This includes consideration of Plaintiff's limitations “imposed by both severe and nonsevere impairments.” Parker-Grose v. Astrue, 462 Fed.Appx. 16, 18 (2d Cir. 2012) (summary order). Therefore, “conclusory statements regarding plaintiff's capacities are not sufficient,” and an ALJ's findings “must specify the functions plaintiff is capable of performing,” Martone v. Apfel, 70 F.Supp.2d 145, 150 (N.D.N.Y. 1999), and should “include a narrative discussion, describing how the evidence supports the ALJ's conclusions, citing specific medical facts, and non-medical evidence,” Brian Z. v. Comm'r of Soc. Sec., 5:20-CV-737 (ATB), 2021 WL 3552525, at *4 (N.D.N.Y. Aug. 11, 2021) (citation omitted).
The Court here cannot assess whether the ALJ's RFC determination is supported by substantial evidence because there are gaps in the administrative record that the ALJ did not cure. Oliveras ex rel. Gonzalez v. Astrue, No. 07 Civ. 2841(RMB)(JCF), 2008 WL 2262618, at *8 (S.D.N.Y. May 30, 2008) (“Where the ALJ has failed to develop the record, a reviewing court ‘need not-indeed, cannot-reach the question of whether the Commissioner's denial of benefits was based on substantial evidence.”) (internal quotations and citations omitted). The ALJ must ensure that “the record as a whole [is] complete and detailed enough to allow the ALJ to determine the [plaintiff]'s [RFC].” Casino-Ortiz v. Astrue, No. 06 Civ. 0155(DAB)(JCF), 2007 WL 2745704, at *7 (S.D.N.Y. Sept. 21, 2007), report and recommendation adopted, 2008 WL 461375 (S.D.N.Y. Feb. 20, 2008). This duty includes making every reasonable effort to obtain “a functional assessment when no such assessment exists in the record or when any such assessments are insufficient.” Jackson v. Kijakazi, 20-CV-7476 (JLC), 2022 WL 620046, at *17 (S.D.N.Y. Mar. 3, 2022) (citing Romero v. Comm'r of Soc. Sec., No. 18-cv-10248 (KHP), 2020 WL 3412936, at *13 (S.D.N.Y. June 22, 2020) (collecting cases)); see also Acosta Cuevas, 2021 WL 363682, at *11 (finding that even in the post-treating physician rule context, “[a] failure to request a functional assessment when no such assessment exists in the record, or when any such assessments are insufficient, is a failure of [the] duty to develop the record.”).
Moreover, the ALJ is not a medical professional, and therefore, must refrain “from playing doctor in the sense that [she] may not substitute [her] own judgment for competent medical opinion.” Quinto v. Berryhill, CIVIL ACTION NO. 3:17-cv-00024 (JCH), 2017 WL 6017931, at *12 (D. Conn. Dec. 1, 2017) (internal quotations omitted). Where the record shows that the claimant has more than “minor physical impairments,” Jaeger-Feathers v. Berryhill, 1:17-CV-06350(JJM), 2019 WL 666949, at *4 (W.D.N.Y. Feb. 19, 2019), an ALJ is not qualified “to assess [the RFC] on the basis of bare medical findings,” Kinslow v. Colvin, Civil Action No. 5:12-cv-1541 (GLS/ESH), 2014 WL 788793, at *5 (N.D.N.Y. Feb. 25, 2014). See also Trippett v. Comm'r of Soc. Sec., 16-CV-908-MJR, 2018 WL 4268917, at *4 (W.D.N.Y. Sept. 7, 2018) (collecting cases) (the ALJ, “[a]s a lay person, . . . was not in a position to interpret” the treatment notes in the record and conclude that the plaintiff retained the capacity to perform light work.). In other words, to satisfy her duty to develop the record, “an ALJ should have medical evidence from a medical source with a sufficiently persuasive opinion noting the existence and severity of a disability.” Jackson, 2022 WL 620046, at *17 (internal quotations and citations omitted); see also Ruffin v. Comm'r of Soc. Sec., Case # 18-CV-1307-FPG, 2020 WL 419365, at *2 (W.D.N.Y. Jan. 27, 2020) (“Where the administrative record does not contain a medical source opinion about the claimant's functional limitations, an ALJ is generally required to ‘recontact the treating source, order a consultative examination, or have a medical expert testify at the hearing' to fully develop the record.”) (quoting Wilson v. Colvin, No. 13-CV-6286P, 2015 WL 1003933, at *22 (W.D.N.Y. Mar. 6, 2015)).
ALJ Loewy did not fulfill her duty to develop the record because she did not obtain a medical source opinion about Plaintiff's functional limitations after she rejected medical opinions from both of Plaintiff's treating physicians, Dr. Owusu and Dr. Ayinla, regarding Plaintiff's limitations and capabilities. (R. 21). The ALJ commented at the hearing that Plaintiff's medical records were “very, very slim,” and ordered that all medical records be requested and received by the end of the month. (R. 51, 91). Yet, upon receiving additional medical records, the ALJ apparently did not consider recontacting Dr. Periakaruppan or requesting a new state agency medical consultant to provide an opinion on Plaintiff's functional limitations. Instead, the ALJ simply determined the RFC based on her own lay understanding of the medical records. See Suide v. Astrue, 371 Fed.Appx. 684, 690 (7th Cir. 2010) (“Even assuming that [the doctors'] opinions did not deserve greater weight, it is the evidentiary deficit left by the ALJ's rejection of [these] reports-not the decision itself-that is troubling.”). The absence of an opinion of Plaintiff's functional limitations is an obvious gap in the record, and therefore grounds for remand. See Sobolewski v. Apfel, 985 F.Supp. 300, 314 (E.D.N.Y. 1997) (“Where there are gaps in the administrative record, remand to the Commissioner for further development of the evidence” is appropriate.).
See infra Section II.B for discussion on the ALJ's consideration of the medical opinions.
An ALJ's failure to request an RFC assessment may be harmless error in cases where “the record contains sufficient evidence from which an ALJ can assess the petitioner's [RFC].” Tankisi v. Comm 'r of Soc. Sec., 521 Fed.Appx. 29, 34 (2d Cir. 2013); Felder v. Astrue, No. 10-CV-5747 (DLI), 2012 WL 3993594, at *11 (E.D.N.Y. Sept. 11, 2012) (“[T]he absence of an RFC statement from the record does not necessarily make the record incomplete.”). In such cases, however, “the RFC assessment will be sufficient only when the record is clear and contains some useful assessment of the claimant's limitations from a medical source.” Muhammad v. Colvin, No. 6:16-cv-06369(MAT), 2017 WL 4837583, at *4 (W.D.N.Y. Oct. 26, 2017) (internal quotations omitted). That is not the case here. The records the ALJ relied on “offer no insight into how [Plaintiff's] impairments affect or do not affect her ability to work, or her ability to undertake her activities of everyday life.” Guillen v. Berryhill, 697 Fed.Appx. 107, 109 (2d Cir. 2017); Nunez v. Berryhill, 16 Civ. 5078 (HBP), 2017 WL 3495213, at *26 (S.D.N.Y. Aug. 11, 2017) (finding remand required where numerous opinions of doctors in the record did not fill the evidentiary gap and the RFC was not supported by sufficient evidence). Based on the need for further development of the evidence, I respectfully recommend remanding the case to the ALJ to fully develop the record regarding Plaintiff's functional abilities.
D. The ALJ's Evaluation of Plaintiff's Subjective Statements
Plaintiff also asserts that the ALJ improperly rejected Plaintiff's testimony regarding her limited range of motion and disabling levels of pain. (Docket No. 15 at 15-17). Plaintiff maintains that the ALJ failed to explain her reasoning and improperly relied on conclusory statements to dismiss the testimony as unreliable. (Id. at 16). Defendant challenges this characterization, arguing that the ALJ considered Plaintiff's daily activities; the duration, frequency, and intensity of her symptoms; and the type of efficacy of treatment she received to find that Plaintiff's subjective statements were not consistent with the evidence in the record. (Docket No. 17 at 20). In reply, Plaintiff argues that the ALJ (1) substituted her lay opinion that was not supported by any medical authority and (2) failed to explain how Plaintiff's activities of daily living contradicted her testimony about the limiting effects of her impairments. (Docket No. 18 at 3-5).
In determining a plaintiff's disability, an ALJ must consider plaintiff's statements about how her symptoms affect her. 20 C.F.R. § 404.1529(a) (2017). “[A]n ALJ is not required to accept the claimant's subjective complaints without question; [she] may exercise discretion in weighing the credibility of the [plaintiff]'s testimony in light of the other evidence in the record.” Martes v. Comm'r of Soc. Sec., 344 F.Supp.3d 750, 762-63 (S.D.N.Y. 2018) (internal quotations omitted). However, the ALJ “will [also] not reject [a plaintiff's] statements about the intensity and persistence of [her] pain or other symptoms or about the effect [her] symptoms have on [her] ability to work solely because the available objective medical evidence does not substantiate [her] statements.” 20 C.F.R. § 404.1529(c)(2).
Instead, the ALJ must follow a two-step process for evaluating a plaintiff's assertions of her limitations. First, “the ALJ must decide whether the [plaintiff] suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged.” Olmo v. Saul, 19 Civ. 00057 (NSR)(JCM), 2019 WL 11553654, at *18 (S.D.N.Y. Dec. 13, 2019), report and recommendation adopted, 2020 WL 7335312 (S.D.N.Y. Dec. 14, 2020) (quoting Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010)). Second, if the plaintiff does suffer from an impairment, “the ALJ must consider the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence of record.” Id. (internal quotations and citation omitted). Social Security Ruling 16-3p (“SSR 16-3p”) directs the ALJ to specifically consider: (1) plaintiff's daily activities; (2) the location, duration, frequency, and intensity of pain or other symptoms; (3) factors that precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, an individual receives or has received for relief of pain or other symptoms; (6) any measures other than treatment an individual uses or has used to relieve pain or other symptoms; and (7) any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms. See SSR 16-3p: Titles II & XVI: Evaluation of Symptoms in Disability Claims, 82 Fed.Reg. 49,462, 49,465-66 (Mar. 16, 2016).
Where an ALJ rejects witness testimony as not credible, the basis for the finding “must ... be set forth with sufficient specificity to permit intelligible plenary review of the record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988) (citing Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 643 (2d Cir. 1983)). The ALJ must make this determination “in light of medical findings and other evidence[ ] regarding the true extent of the pain alleged by the claimant.” Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984) (internal quotation marks omitted) (quoting McLaughlin v. Sec'y of Health, Ed. and Welfare, 612 F.2d 701, 705 (2d Cir. 1980)). However, “an ALJ is not required to explicitly address each and every statement made in the record that might implicate [her] evaluation of the [plaintiff's] credibility,” Morales v. Berryhill, 484 F.Supp.3d 130, 151 (S.D.N.Y. 2020) (internal quotations omitted), and where an ALJ gives specific reasons for finding the plaintiff not credible, the ALJ's credibility determination “is generally entitled to deference on appeal,” Selian, 708 F.3d at 420 (citing Calabrese v. Astrue, 358 Fed.Appx. 274, 277 (2d Cir. 2009) (summary order)). Thus, “[i]f the [ALJ's] findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount a [plaintiff's] subjective complaints.” Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (citations omitted); see also Jimenez v. Colvin, 12 Civ. 6001 (PGG) (FM), 2016 WL 5660322, at *13 (S.D.N.Y. Sept. 30, 2016) (“Federal courts must show special deference to an ALJ's credibility determinations because the ALJ had the opportunity to observe plaintiff's demeanor while testifying.”) (internal quotations omitted).
Here, the ALJ found that Plaintiff had four medically determinable impairments, (R. 18), and that these impairments could reasonably be expected to cause Plaintiff's alleged symptoms. However, the ALJ did not find Plaintiff's testimony credible, determining that Plaintiff's statements concerning the intensity, persistence and limiting effects of the symptoms were not consistent with the medical evidence and other evidence in the Record. (R. 19). To determine Plaintiff's credibility, the ALJ represented that she considered “all symptoms and the extent to which those symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence” and “the medical opinion(s) and prior administrative medical finding(s).” (Id.). However, ultimately, the ALJ discussed the medical evidence without referring to any persuasive medical opinion or non-medical evidence in her decision that supports her finding, (R. 20).
As discussed above, because the ALJ has failed to develop the record with appropriate medical opinions, the Court cannot assess whether there was otherwise substantial evidence to uphold the ALJ's decision to discount Plaintiff's subjective statements. See Oliveras, 2008 WL 2262618, at *8. Accordingly, I respectfully recommend remanding this matter so that the ALJ can assess Plaintiff's credibility in light of a fully developed record.
Upon remand, the ALJ is advised that she should avoid limiting her explanation to a general summary of the medical record without specifying her reasons for finding Plaintiff's testimony not credible because that makes meaningful judicial review difficult. See Williams v. Berryhill, 17-CV-1660 (JMA), 2019 WL 1271647, at *5-6 (E.D.N.Y. Mar. 19, 2019) (finding that the ALJ's boilerplate promise that reasons for finding a Plaintiff not credible would be “explained in this decision” went unfulfilled when “he merely recited Plaintiff's medical history and pointed to a few limited activities Plaintiff indicated he could perform in support of the RFC determination.”).
III. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend granting Plaintiff's motion for judgment on the pleadings, denying the Commissioner's cross-motion, and remanding this case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Report and Recommendation.
IV. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report and Recommendation to serve and file written objections. See Fed.R.Civ.P. 6(a) and (d) (rules for computing time). A party may respond to another party's objections within fourteen (14) days after being served with a copy. See Fed.R.Civ.P. 72(b)(2). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Kenneth M. Karas at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at said Courthouse.
Requests for extensions of time to file objections must be made to the Honorable Kenneth M. Karas and not to the undersigned. Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b), 6(d), 72(b); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).