Opinion
20 Civ. 9543 (KMK)(PED)
03-18-2022
Victor Lebron, Plaintiff, v. Kilolo Kijakazi,[1] Acting Commissioner of the Social Security Administration Defendant.
REPORT AND RECOMMENDATION
Paul E. Davison, U.S.M.J.
TO THE HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Plaintiff Victor Lebron brings this action pursuant to 42 U.S.C. § 405(g) challenging the decision of the Acting Commissioner of the Social Security Administration (the “Agency”) that denied his application for Disability Insurance Benefits (“DIB”). [Dkt. 1.] Your Honor referred this matter to me for a report and recommendation. [Dkt. 5.] Plaintiff filed a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), seeking to reverse the Acting Commissioner's decision that Plaintiff was not disabled within the meaning of the Social Security Act, 42 U.S.C. §§ 423 et seq., and to remand the matter for further administrative proceedings. [Plaintiff's Motion at Dkt. 17; Memorandum of Law at Dkt. 18; Reply in Support at Dkt. 21.] The agency filed a cross-motion for judgment on the pleadings to affirm the Acting Commissioner's decision and to dismiss this action. [Defendant's Motion at Dkt. 19; Memorandum of Law at Dkt. 20.] For the reasons that follow, I respectfully recommend that Your Honor DENY Plaintiff's motion, and GRANT the Acting Commissioner's motion.
II. BACKGROUND
Plaintiff is a former detective who was diagnosed with Hodgkin's lymphoma in late 2016. [R. 21.] After several months of chemotherapy treatment, Plaintiff's lymphoma is now in remission. [R. 19.] Nonetheless, Plaintiff claims that as a result of the treatment, he experiences peripheral neuropathy which has rendered him disabled. [Dkt. 18 at 19.]
Notations preceded by “R.” refer to the certified administrative record of proceedings relating to this case submitted by the Commissioner in lieu of an answer. [Dkt. 12.] The Court conducted a plenary review of the entire administrative record, familiarity with which is presumed. In light of plaintiff's narrow challenge to the ALJ's decision, I assume knowledge of the facts surrounding plaintiff's medical treatment and do not recite them in detail, except as germane to the analysis set forth below.
A. Procedural History
On January 22, 2018, Plaintiff filed for a period of disability and/or all insurance benefits. [Application at R. 184-91.] Plaintiff's application was denied and he requested a hearing before an Administrative Law Judge (“ALJ”). [Denial at R. 84-86; Request for ALJ Hearing at R. 111.] A video hearing was held on November 18, 2019 before ALJ Paul Goodale. [R. 35.] Plaintiff appeared with counsel and testified at the hearing. [R. 33-83.] On February 4, 2020, the ALJ issued a written decision in which he concluded that Plaintiff was not disabled within the meaning of the SSA and denied Plaintiff's application. [R. 13-27.] The ALJ's decision became the Acting Commissioner's final decision on September 8, 2020 when the Appeals Council denied Plaintiff's request for review. [R. 1-3.] Plaintiff timely commenced this action on November 12, 2020. [Dkt. 1.]
Plaintiff appeared in Goshen, New York; ALJ Goodale presided over the hearing from Providence, Rhode Island. [R. 35.]
B. The Medical Evidence
1. Treating Sources
a. Plaintiff's Hodgkin's Lymphoma
On November 2, 2016, Plaintiff met with Lissette Giraud, M.D. regarding potentially obtaining an ear tube in his left ear. [R. 604.] Dr. Giraud observed that Plaintiff had a left neck mass and noted that he would have a scan next Monday. [Id.] After a biopsy on December 21, 2016, Plaintiff was diagnosed with classic Hodgkin's lymphoma on January 24, 2017. [R. 31718.] On January 26, 2017, Plaintiff met with David Straus, M.D. and was informed that he had “stage IIA classical Hodgkin lymphoma.” [R.303.] Dr. Straus discussed treatment with Plaintiff and noted that one of the side effects could be “peripheral sensory neuropathy.” [Id.]
On February 13, 2017, Plaintiff had an appointment with Dr. Straus to monitor his response to the chemotherapy. [R. 300.] Dr. Straus noted that Plaintiff had “mild anesthesia and parethesias in his finders and toes that do not interfere with functioning.” [Id.] On February 27, 2017, Plaintiff had another appointment with Dr. Straus. [R. 298-300.] At this appointment, Dr. Straus again noted that Plaintiff had “mild anesthesia and parethesias in his fingers and toes that do not interfere with functioning.” [Id.] On March 13, 2017, Plaintiff had a follow-up appointment with Dr. Straus. [R. 292.] Dr. Straus noted that Plaintiff had “grade 1 neuropathy involving the fingertips and plantar surfaces” but that such neuropathy did “not interfere with ADLS or fine motor function.” [Id.] On March 27, 2017, Plaintiff had another appointment with Dr. Straus and Dr. Straus again noted that Plaintiff had “mild anesthesia and paresthesias in his fingers and toes that are minimally interfering with functioning.” [R. 287.] Dr. Straus made similar findings in follow-up appointments with Plaintiff on April 10, 2017, April 24, 2017 and May 8, 2017. [R. 281-86.] On July 6, 2017, Plaintiff had an appointment with Dr. Straus to discuss the completion of his treatment for his Hodgkin's lymphoma. [R. 278.] Dr. Straus observed that Plaintiff had “mild anesthesia and parethesias in his fingers and toes that are not interfere with functioning.” [Id.] On November 16, 2017, Plaintiff had a follow-up meeting with Dr. Straus. [R. 275.] Dr. Straus noted that Plaintiff had “persistent neuropathy in his fingers and toes which minimally occasionally affects functioning. He has no difficulty buttoning his shirt or with unsteadiness except occasionally.” [Id.]
On March 15, 2018, Plaintiff had another appoint with Dr. Straus. [R. 273.] Dr. Straus observed that Plaintiff still had “persistent peripheral neuropathy in his fingers and toes.” [Id.] Dr. Straus further observed that Plaintiff's gait was unsteady and that he dropped things easily. [Id.] He noted that “[t]his would be grade 2 sensory neuropathy.” [Id.] On May 16, 2018, Plaintiff had an appointment with Kevin Weiner, M.D. [R. 652.] Dr. Weiner observed that Plaintiff “developed neuropathy” from his chemotherapy treatment and that Plaintiff “drops objects and has burning sensation in his hands and feet.” [Id.]
On May 17, 2018, Plaintiff had an appointment with Felix Karafin, M.D. who administered a nerve conduction study and electromyography. [R. 446-51.] Dr. Karafin noted that one of Plaintiff's chief complaint was “numbness in the upper and lower extremities.” [R. 446.] Dr. Karafin observed that the nerve conduction study and electromyography revealed evidenced of “mixed sensory-motor, axonal and demyelinating peripheral neuropathy.” [R. 448.]
By letter dated September 4, 2018, Jillian Eliot, M.D. stated that Plaintiff “suffers from neuropathy in both his feet and his hands due to chemotherapy treatment.” [R. 463.] She further stated that “[w]alking long distances or carrying objects for a long period of time is painful for Mr. Lebron due to his neuropathy.” [Id.] She further opined that Plaintiff was “permanently disabled.” [Id.]
On October 10, 2018, Dr. Weiner provided a history of Plaintiff's illness, a physical examination, and recommendations. [R. 647.] Dr. Weiner noted that Plaintiff's “neuropathy is increasing.” [Id.] He further observed that Plaintiff's motor strength was “4/5 with paresthesias down the arm.” [Id.] He also noted that Plaintiff “had paresthesias in bilateral hands.” [Id.] On November 26, 2018, Tamitha Bland, FNP also provided a history of Plaintiff's illness, a physical examination, and recommendations. [R. 645.] She reported that Plaintiff “continues to have difficulty with ambulation and completing overhead activities. He paces himself with activities of daily living. He's ambulating without any assistive devices.” [Id.] She observed that his bilateral hand grasp is 5/5, and his motor strength was 4/5. [Id.] She also observed that he “continues to have parethesias down his arm and bilateral hands.” [Id.] Nurse Bland provided a follow-up on March 21, 2019. [R. 643.] She noted that Plaintiff “continues to report difficulties with ambulation and doing activities of daily living.” [Id.] She observed that Plaintiff's motor strength for his biceps, triceps, and deltoids was 4/5. [Id.]
On March 21, 2019, Plaintiff had an appointment with Dr. Weiner. [R. 643.] Dr. Weiner observed that Plaintiff “has numbness in his hands.” [Id.] He further noted that “[d]ue to his persistent symptoms, the [Plaintiff] is totally disabled.” [Id.] On July 17, 2019, Plaintiff had another appointment with Dr. Weiner. [R. 641.] Dr. Weiner noted that Plaintiff “has severe neuropathy of his hands and his feet. He has to look down during ambulation to make sure he knows where his feet are in relation to his body. He has difficulty doing activities.” [Id.] Dr. Weiner also stated that Plaintiff “is totally disabled and is unable to return to work.” [Id.]
On August 21, 2019, Dr. Weiner completed a treating doctor's patient functional assessment to do sedentary work. [R. 636.] He noted that Plaintiff could stand and/or walk for less than one hour in an eight hour work day, and that Plaintiff could sit for less than two hours during an eight hour work day. [Id.] He further noted that Plaintiff would be able to lift less than five pounds if required to do so for 1/3 of an eight hour work day and that Plaintiff would be able to lift less than three pounds if required to do so for 2/3 of an eight hour work day. [Id.] He also noted that Plaintiff faced additional limitations, including that he would need to lie down during the work day, that he would require a sit-stand option, that he would require frequent breaks during the work day, that he would have difficulty concentrating on his work, that he would require an average of 2 or more sick days off each month, that he suffers from pain which prevents him from performing eight hours of work, and that he has environmental restrictions due to limitations or sensitivities. [R. 637.]
On August 27, 2019, Dr. Weiner provided a history of Plaintiff's present illness, noted diagnostic studies, conducted a physical exam, and provided recommendations. [R. 638.] He noted that Plaintiff “is doing activities of daily living due to the numbness in his hands and feet, he has difficulty walking secondary to the neuropathy.” [Id.] In terms of diagnostic studies, Dr. Weiner stated: “Severe left carpal tunnel syndrome and mixed sensory and motor axonal demylineating peripheral neuropathy.” [Id.] For the physical examination section, Dr. Weiner noted that Plaintiff had “[p]aresthesias of bilateral upper extremities. He had positive Tinel's bilaterally. He had paresthesias throughout his hands. He had difficulty doing fine motor control. Hand instrinsics were 4-/5. There was pain along the iliocostalis thoracis.” [R. 638-39.] Dr. Weiner opined that, “[b]ased on [Plaintiff's] history, physical, review of diagnostic studies, he is totally disabled from all forms of employment including sedentary work. [Plaintiff] has severe neuropathy. He cannot use his hands for fine motor typing and holding pens. He is constantly dropping objects out of it....He has difficulty ambulating due to the decreased sensation and he has to look down.” [R. 639.]
b. Plaintiff's Primary Care and Weight Loss
In addition to chemotherapy, Plaintiff was also receiving primary care and weight loss treatment at Crystal Run. On April 4, 2017, Plaintiff met with Ma Florence Celzo, M.D. regarding his type 2 diabetes and hypertension. [R. 600.] She reported that there was “[n]o neuropathy.” [Id.] She reported the same findings on April 18, 2017. [R. 596.] On July 14, 2017, Plaintiff met with Seth Judd, M.D. to discuss a sleeve gastrectomy, to assist Plaintiff with weight loss. [R. 592.] Dr. Judd recommended that Plaintiff would need to “show involvement in an exercise plan” before he could be approved for surgery. [R. 594.] On March 3, 2018, Plaintiff had another appointment with Dr. Celzo in which she again observed that there was “[n]o neuropathy.” [R. 396.] On June 4, 2018, Plaintiff met with Jaimie Tropin, FNP-C at Crystal Run. [R. 380.] Nurse Tropin noted that Plaintiff was “[n]ot exercising at all due to neuropathy, back and foot pain.” [R. 380.]
On June 27, 2018, Plaintiff started physical therapy and completed a questionnaire. [R. 329.] He noted that he had “moderate difficulty” carrying a heavy object, washing his back, and putting on a pullover sweater. [Id.] He also reported that the had “mild difficulty” opening a tight or new jar, placing an object on a shelf above his head, doing heavy household chores, yard work, making a bed, carrying a shopping bag or briefcase, changing a lightbulb overhead, using a knife to cut food, recreational activities in which he would take some force to his arm, shoulder or hand, recreational activities that require him to move his arms freely, and transportation needs. [Id.] He further noted that his arm, shoulder or hand problem moderately interfered with his social activities. [R. 330.] He also noted that during the past week he had severe arm, shoulder, or hand pain, severe weakness in his arm, shoulder, or hand, and severe stiffness in his arm, shoulder, or hand. [Id.] During the initial evaluation for physical therapy, Plaintiff reported neuropathy in “both feet and hands.” [R. 335.] He also reported that he could stand for 15 minutes without aggravating pain, and that he was able to walk without significant pain for 15-20 minutes. [Id.]
On July 6, 2018, Plaintiff had an appointment with Dr. Celzo. [R. 375.] Dr. Celzo observed that Plaintiff had “[n]o neuropathy.” [R. 376.] On August 22, 2018, Plaintiff met with Nurse Tropin to discuss treatment for his morbid obesity. [R. 588.] Plaintiff was informed that he needed to “begin to incorporate 20-30 minutes of walking and isometric exercise into [his] daily life” in order to lose weight. [Id.]
Plaintiff contends that at this appointment, Dr. Celzo also diagnosed him with “diabetic neuropathy.” [Dkt. 18 at 12.] Plaintiff is mistaken, Dr. Celzo diagnosed him with “diabetic nephropathy” which is a kidney disease and not related to neuropathy. See R. 376.; see also Diabetic nephropathy (kidney disease), Mayo Clinic (Oct. 19, 2021), https://www.mayoclinic.org/diseases-conditions/diabetic-nephropathy/symptoms-causes/syc-203 54556#:~:text=Diabetic%20nephropathy%20is%20a%20common,and%20cause%20high%20blo od%20pressure.
On October 24, 2018, Plaintiff had a meeting with Nurse Tropin. [R. 583.] Nurse Tropin again noted that Plaintiff's plan was to “begin to incorporate 20-30 minutes of walking and isometric exercise into daily life.” [Id.] On October 26, 2018, Plaintiff had an appointment with Dr. Celzo. [R. 576.] Similar to previous appointments, Dr. Celzo observed “[n]o neuropathy.” [Id.] Dr. Celzo made similar observations at an appointment on February 15, 2019. [R. 550.]
On April 26, 2019 Plaintiff had his gastric sleeve surgery. [See R. 534.] He then had a follow-up appointment with Dr. Celzo on May 31, 2019. [Id.] At that appointment, she observed that he had “[n]o neuropathy.” [Id.] On June 18, 2019, Plaintiff had an appointment with Dr. Judd. [R.533.] Dr. Judd noted that Plaintiff was “feeling great no issues, walking often.” [R. 530.] On August 30, 2019, Plaintiff had another appointment with Dr. Celzo, in which she again observed that Plaintiff had “[n]o neuropathy.” [R. 525.]
2. Consultative Examinations
On August 17, 2018, Paul Mercurio, M.D. conducted an internal medicine examination of Plaintiff. [R. 408.] Dr. Mecurio reported that Plaintiff “states that he has neuropathy in his fingers and that though he is diagnosed now with carpal tunnel syndrome, he feels that the neuropathy in his fingers is diabetic related. He notes he gets tingling in the hands and fingers.” [R. 409.] For the activities of Plaintiff's daily living, Dr. Mercurio noted that:
[Plaintiff] does some cooking, cleaning, laundry, and shopping, but states that these are done largely by the wife, and that the wife helps when he does these activities. He does watch over the children. He takes his own showers and can dress himself. His leisure time activities include watching TV, listening to music, reading, and going out and socializing with friends.[R. 410.] With respect to Plaintiff's general appearance, gait, and station, Dr. Mercurio observed that Plaintiff “did not appear to be in any acute distress....Gait normal. Able to put weight on heels and toes without difficulty....Stance normal. Used no assistive devices. Needed no help changing for exam or getting on and off exam table. Able to rise from chair without difficulty.” [R. 411.] He further observed that Plaintiff's hand and finger dexterity were “intact” and that his grip strength was 5/5 bilaterally. [R. 412.] Dr. Mercurio diagnosed Plaintiff with “[d]iabetes mellitus with neuropathy” and further noted that Plaintiff “has no limitation for sitting, reaching, or handling of objects or seeing....He has a mild limitation for standing and prolonged walking as well as moderate limitation for climbing stairs and carrying because of his arthralgias.” [R. 413.] On September 25, 2018, upon a review of the evidence, J. Koenig, M.D. concluded
On August 17, 2018, Alan Dubro, Ph. D. also conducted a psychiatric evaluation of Plaintiff. [R. 419.] Dr. Dubro's findings are not germane to the issues before the Court.
Plaintiff could perform light work, subject to certain respiratory limitations. [R. 92-93.]
C. Plaintiff's Hearing Testimony
Vocational expert Heather Mueller also testified at the hearing. [R. 62-69.] Her testimony is not germane to the issues before the Court.
Plaintiff was born on December 5, 1967 and was 51 years old at the time of the hearing. [R. 50.] Plaintiff was five feet and ten inches and he weighed 250 pounds at the time of the hearing. [R. 52.] He graduated high school and completed a few college courses. [Id.] From 2004 until November/December of 2016, Plaintiff worked as a detective in the NYPD/DEA narcotics group. [R. 54.] From 2007 until 2016, Plaintiff also worked in private security for T&M Protection Resources. [R. 56-57.]
Plaintiff testified that he experienced “a lot of pain in [his] hands” and that his right hand “specifically locks up sometimes.” [R. 44.] Plaintiff further testified that the neurologist he sees, Dr. Carver, said that Plaintiff's right hand locking up was “the result of the neuropathy.” [R. 4445.] Plaintiff testified that he's “having problems, you know, carrying heavy stuff” and that he dropped items due to the numbness that he felt in his hands. [R. 45, 68.] When asked if he could perform lighter work, Plaintiff stated “[i]t would still be a little difficult. I can't still for a long period of time. Standing for a long period of time also bothers me....The neuropathy is, you know, pretty disabling.” [R. 58-59.] Plaintiff stated that he had neuropathy in his hands, legs, and feet, and when asked if it was related to the diabetes, he responded “Yes.” [R. 59.]
The ALJ observed that Plaintiff had been sitting for about 30 minutes and Plaintiff reported that his hands were starting to go numb. [R. 61.] When asked how long he could remain standing, Plaintiff reported 15 to 20 minutes before he got “the numbness in [his] feet.” [R. 62.] When asked if he could reach overhead, Plaintiff stated that he could, assuming that it was not too heavy. [Id.] With respect to daily activities, Plaintiff testified that he could get dressed, shower, and get breakfast without help. [R. 63.] He stated that he could only do light house cleaning and some light laundry. [Id.] He also stated that he could do minimum yard work and that he could go grocery shopping. [R. 63-64.] Plaintiff further testified that he walked the family's two dogs “most of the time.” [R. 64.]
Plaintiff testified that in 2019 and 2018 he went to Disney with his family for four to seven days. [R. 65.] He also testified that in the summer of 2021 he went to Peabody, Massachusetts to visit his family. [R. 66.] When asked what typical activities he participate in, Plaintiff testified that he made sure his children “are well taken care of, you know, they do sports and, you know, I make sure that, you know, I walk the dogs. I'm helping my wife out right now, who is - and you know, we help each other out. She just had knee surgery about two years ago. She's about to get knee surgery again.” [Id.] He further testified that his time on the computer was “[m]inimal.” [R. 67.]
D. The ALJ's Decision
At the first step of the sequential analysis, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since December 20, 2016, Plaintiff's alleged onset date. [R. 15.] At the second step, the ALJ determined that Plaintiff had the following severe impairments: Hodgkin's lymphoma status post chemotherapy; degenerative disc disease of the lumbar and cervical spin; left carpal tunnel syndrome, right shoulder impairment; left knee impairment; and obesity status post gastric bypass procedure. [Id.] At the third step, the ALJ found that Plaintiff's impairments or combination of impairments did not meet or medically equal the severity of one of the listed impairments in the Adult Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 19.]
At step four, the ALJ concluded that plaintiff has the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. 404.1567(b):
with ability to lift or carry 20 pounds occasionally and 10 pounds frequently as well as sit and stand/walk for six hours per workday, but with the following limitations: he can only frequently stoop, crouch, crawl, and kneel; can frequently climb ramps or stairs, but only occasionally climb ladders, ropes or scaffolds. He could do frequent handling and fingering with the bilateral upper extremities. The claimant must avoid concentrated exposure to fumes, odors, dust, gases, and poorly ventilated areas.[R. 20.] To reach this conclusion, the ALJ considered “all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence ” in accordance with 20 C.F.R. § 404.1529 and Social Security Ruling 16-3p. [R. 20.] The ALJ also found that Plaintiff would be unable to perform any past relevant work. [R. 25.]
At step five, in light of the vocational expert's testimony, the ALJ determined that Plaintiff could be an office cleaner (DOT code: 323.687-014), inspector (DOT code: 579.687 014), or an assembler press operator (DOT code: 690.685-014). [R. 27.] The ALJ thus concluded plaintiff “not disabled” as defined in the SSA. [Id.]
III. LEGAL STANDARDS
A. Standard of Review
In reviewing a decision of the Commissioner, a district court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). “It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). Rather, the court's review is limited to “determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).
The substantial evidence standard is even more deferential than the “clearly erroneous” standard. Brault v. Social Sec. Admin, 683 F.3d 443, 448 (2d Cir. 2012). “Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam). “The substantial evidence standard means once an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448 (internal quotations omitted).
“Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Comm'r Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted). “When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or when the ALJ's rationale is unclear in light of the record evidence, remand to the Commissioner “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. Statutory Disability
The Social Security Act (“SSA”) defines the term “disability to mean the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). In addition, a person is eligible for disability benefits under the SSA only if
his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.Id. § 423(d)(2)(A).
Social Security Regulations set forth a five-step sequential analysis for evaluating whether a person is disabled under the SSA:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of impairments;
(3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments;
(4) based on a “residual functional capacity” assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and
(5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing 20 C.F.R. §§ 404.1520(a)(4)(I)-(v), 416.920(a)(4)(I)-(v)). The claimant bears the burden of proof for the first four steps of the process. See Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008). If the claimant proves that his impairment prevents him from performing his past work, the burden then shifts to the Commissioner at the fifth and final step. See Brault, 683 F.3d at 445.
C. Weighing the Medical Evidence
On January 18, 2017, the Commissioner published the “Revisions to Rules Regarding the Evaluation of Medical Evidence,” effective March 27, 2017. 82 Fed.Reg. 5844-01, 2017 WL 168819 (Jan. 17, 2017). The Revisions altered certain longstanding rules for evaluating medical opinion evidence for cases filed after March 27, 2017. Id. at *5844. “Under the new regulations, a treating doctor's opinion is no longer entitled to a presumption of controlling weight.” Prieto v. Comm'r Soc. Sec., 2021 WL 3475625, at *8 (S.D.N.Y. Aug. 6, 2021). Instead, all medical opinions must be evaluated for their persuasiveness based on: (1) supportability; (2) consistency; (3) the medical source's relationship with the claimant; (4) the medical source's specialization; and (5) other relevant factors. 20 C.F.R. §§ 404.1520c(a)-(c).
The ALJ must provide an explanation for the factors of supportability and consistency, because these factors are the most important. See Byrd v. Kijakazi, 2021 WL 5828021, at *15 (S.D.N.Y. Nov. 12, 2021). As to supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical findings(s), the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). As for consistency, “[t]he more consistent a medical opinion(s) or prior administrative finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id. at § 404.1520c(c)(2).
“An ALJ must not only consider supportability and consistency in evaluating medical source opinions but also must explain the analysis of those factors in the decision.” Prieto, 2021 WL 3475626, at *9. See 20 C.F.R. § 404.1520c(b)(2). Further, in most instances, an ALJ must “consider, but need not explicitly discuss, them in determining the persuasiveness of the opinion of a medical source.” Byrd, 2021 WL 5828021, at *16. “If the ALJ finds two or more medical opinions to be equally supported and consistent with the record, but not identical, the ALJ must articulate how he or she considered those three remaining factors.” Id. (citing 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3)).
IV. DISCUSSION
Plaintiff challenges the ALJ's decision on two grounds. First, Plaintiff argues that the ALJ failed to properly address Plaintiff's peripheral neuropathy of his hands and feet as a medically determinable severe impairment as step two of the sequential evaluation. [Dkt. 18 at 19.] Second, Plaintiff argues that the jobs identified by the vocational expert are particularly unsuitable for Plaintiff in light of his neuropathy. [Id. at 23.] In response, Defendant argues that the ALJ's decision is supported by substantial evidence, and the ALJ appropriately determined Plaintiff's severe impairments. [Dkt. 20 at 15.] Defendant further argues that Plaintiff's argument that the jobs identified are particularly unsuitable is, in essence, a “rehashing” of Plaintiff's argument that the ALJ failed to properly address Plaintiff's peripheral neuropathy. [Id. at 22 n.6.]
A. The ALJ Properly Addressed Plaintiff's Peripheral Neuropathy
Plaintiff first argues that the ALJ failed to include Plaintiff's peripheral neuropathy as a severe impairment at step two of the sequential evaluation. [Dkt. 18 at 19.] Under the SSA, at step two, an ALJ is required to consider the severity of a claimant's medical impairment. 20 C.F.R. § 404.1520(a)(4)(ii). Here, the ALJ found that Plaintiff indeed had several severe impairments, including Plaintiff's Hodgkin's lymphoma status post chemotherapy. [R. 15.] Plaintiff argues that his neuropathy indeed arose from his chemotherapy treatment. Plaintiff acknowledges that he “first reported mild anesthesia in this [sic] hand and fingers following the first cycle of ABVD chemotherapy in February 2017” and “continued to report mild anesthesia of his toes and fingers after each round of chemotherapy treatment.” [Dkt. 18 at 19 (internal footnote omitted).] Because Plaintiff's neuropathy was a result of his chemotherapy, the ALJ appropriately considered it as a symptom of Plaintiff's chemotherapy and as such, included it in the determination that Plaintiff's status post chemotherapy was a severe impairment.
Further, the ALJ proceeded on the sequential analysis and considered whether Plaintiff's neuropathy met the requirements for listing 11.14 for peripheral neuropathies. [R. 19.] The ALJ specifically found that “[w]ith regard to listing 11.14 for peripheral neuropathies, the record fails to demonstrate any significant and persistent disorganization of motor function in two extremities that have resulted in sustained disturbance of gross and dexterous movements or gait and station.” [Id.] Given that the ALJ continued on the sequential analysis, and analyzed Plaintiff's neuropathy to see if it qualified for a listing, the ALJ's alleged failure to specifically identify Plaintiff's neuropathy at step two is at most a harmless error that would not require remand. See Woodmancy v. Colvin, 577 Fed.Appx. 72, 72 n.1 (2d Cir. 2014) (“[W]e identify no error warranting remand because the ALJ did identify severe impairments at step two, so Woodmancy's claim proceeded through the sequential evaluation process, in which all of Woodmancy's ailments were part of the analysis.”); see also Eralte v. Colvin, 2014 WL 7330441, at *10 (S.D.N.Y. Dec. 23, 2014) (“The failure to address a condition at step two will constitute harmless error, and therefore not warrant remand, if, after identifying other severe impairments, the ALJ considers the excluded conditions or symptoms in the subsequent steps and determines that they do not significantly limit the plaintiff's ability to perform basic work.”)
The ALJ also considered Plaintiff's neuropathy in step four of his analysis, when determining Plaintiff's residual functioning capacity. The ALJ acknowledged Plaintiff's testimony that “described chronic pain as well as neuropathy affecting his hands and feet.” [R. 20.] He noted Plaintiff's visit with Dr. Straus on November 16, 2017 where he “described some neuropathy of his fingers and toes with minimal and only occasional effect on functioning” and Plaintiff's visit on March 15, 2018 when Plaintiff indicated “persistent peripheral neuropathy in his fingers and toes remained with reports of unsteady gait and dropping things easily.” [R. 21.]The ALJ also noted that “[a]s for cancer-induced neuropathy, the treatment notes suggest only mild symptoms, and the claimant indicated during the office visits that they had no or only mild effect on activities.” [R. 23.]
The ALJ states that the dates of Plaintiff's visits were November 15, 2017 and March 13, 2018. [R. 21.] However, given the context, it seems that the ALJ meant Plaintiff's November 16, 2017 and March 15, 2018 visits.
The ALJ also considered Dr. Elliot's opinion in September 2018 that Plaintiff “could not walk long distances or carry objects for a long periods of time due to neuropathy.” [R. 24.] The ALJ stated he was not persuaded by the opinion because it was “vague, without defining long distance or weight of objects that cannot be carried for long periods of time.” [Id.] Nonetheless, the ALJ “included exertional limitations, generally concordant with this opinion” when determining Plaintiff's residual functional capacity. [Id.] In addition to Dr. Elliot's opinion, the ALJ also considered Dr. Weiner's August 21, 2019 opinion that Plaintiff “was disabled due to neuropathy, reduced vision, fatigue, the need to change his position, excessive absenteeism, and inability to sustain concentration.” [R. 24.] The ALJ found that he was not persuaded by this opinion “because it is wholly inconsistent with the record as a whole, including relatively minor abnormalities on diagnostic studies and physical examinations, as well as the claimant's treatment history showing significant improvement and general stability of his conditions as well as robust activities of daily living.” [Id.]
The ALJ's finding with respect to the Plaintiff's neuropathy is not contrary to the substantial evidence of the record. Indeed, Plaintiff first reported his neuropathy after starting his chemotherapy treatment, and Dr. Straus and Dr. Weiner observed the impacts of Plaintiff's neuropathy. [R. 273, 275, 292, 638-39, 641, 643, 652.] Nonetheless, the record also shows that different doctors observed that Plaintiff did not have neuropathy, or that his neuropathy did not interfere with his functioning. [R. 275, 292, 396, 525, 530, 534, 550, 576, 600.] The record further demonstrates, as the ALJ concluded, that Plaintiff engages in “robust activities of daily living.” Plaintiff walks his three dogs every day, participates in childcare, assists his wife with her upcoming knee surgery, and took trips to Disney and Massachusetts. [R. 63-66.] Thus, the ALJ's decision is supported by substantial evidence.
Plaintiff also argues that the ALJ failed to acknowledge Plaintiff's diagnosis of demyelinating peripheral neuropathy from the nerve conduction study and electromyography. [Dkt. 18 at 22.] Plaintiff contends that the ALJ disregarded the conclusion of the nerve conduction study because the ALJ stated that “[t]he nerve conduction study showed involvement of only right radiculopathy whereas the [Plaintiff] endorsed neuropathy of the hands and feet.” [R. 23.] Read in isolation, it appears as though the ALJ completely disregarded the findings of the nerve conduction study. Nonetheless, in the section of the ALJ's opinion where the ALJ considered all of Plaintiff's diagnostic tests, the ALJ acknowledged that the nerve conduction study had “some findings suggestive of neuropathy.” [R. 21.] Thus, contrary to Plaintiff's argument that the ALJ failed to acknowledge the objective testing, the ALJ indeed acknowledged the conclusions of Plaintiff's nerve conduction study.
Plaintiff further argues that the ALJ's failure to acknowledge the nerve conduction study negatively impacted the ALJ's credibility analysis of Plaintiff, and requests remand and a direction that the ALJ should “make corrective credibility findings taking into account . . . [Plaintiff's] lengthy work record meriting enhanced credibility.” [Dkt. 18 at 22-23.] The Court finds this argument unavailing. First, as discussed, the ALJ appropriately considered the findings of the nerve conduction study. Second, work experience, though a factor in a credibility determination, is not dispositive. See Wavercak v. Astrue, 420 Fed.Appx. 91, 94 (2d Cir. 2011) (“Work history, however, is just one of many factors appropriately considered in assessing credibility.” (internal quotation marks omitted)).
Although the ALJ did not completely disregard the nerve conduction study, the ALJ's statement suggesting that Plaintiff's claimed neuropathy was inconsistent with the nerve conduction study is a misstatement of the record. If the ALJ had strongly considered his misstatement when determining Plaintiff's residual functional capacity, then that would merit remand. Cf. Mitchell v. Comm'r Soc. Sec., 2019 WL 2399533, at *4 (W.D.N.Y. June 7, 2019) (granting remand where an ALJ mischaracterized the findings of an MRI and the mischaraterized findings were a “strong consideration” in the ALJ's residual functional capacity assessment.). However, because there is no evidence that the ALJ gave strong consideration to his misstatement when determining the Plaintiff's residual functional capacity, and the ALJ's findings are supported by substantial evidence, the ALJ's misstatement amounts to a harmless error. See McCann v. Comm'r Soc. Sec., 2014 WL 4199230, at *3 (N.D.N.Y. Aug. 21, 2014) (an ALJ's misstatement was, at most, a harmless error where substantial evidence in the record supported the ALJ's conclusion). Accordingly, I conclude, and I respectfully recommend Your Honor conclude, that the ALJ appropriately considered Plaintiff's neuropathy.
B. The Jobs Identified by the Vocational Expert Are Appropriate
Plaintiff argues that the jobs identified by the vocational expert each require frequent reaching and handling, and that Plaintiff would be unable to perform them due to his neuropathy. [Dkt. 18 at 23.] In his opinion, the ALJ took into account Plaintiff's physical limitations and concluded that Plaintiff “is limited to light exertional level work, subject to other limitations within the residual functional capacity.” [R. 25.] The vocational expert then took the ALJ's finding into account and determined the occupations Plaintiff could have were office cleaner (DOT code: 323.687-014), inspector (DOT code: 579.687-014), or an assembler press operator (DOT code: 690.685-014). [R. 27.] Because the substantial evidence supports the ALJ's finding with respect to Plaintiff's residual functional capacity, Plaintiff's argument is unavailing. See Wavercak v. Astrue, 420 Fed.Appx. 91, 95 (2d Cir. 2011) (“Because we have already concluded that substantial record evidence supports the RFC finding, we necessarily reject [plaintiff's] vocational expert challenge.”) Accordingly, I respectfully recommend Your Honor conclude that the jobs identified by the vocational expert were appropriate.
VI. CONCLUSION
For the reasons set forth above, I respectfully recommend that Your Honor DENY Plaintiff's motion for judgment on the pleadings, GRANT the Acting Commissioner's motion for judgment on the pleadings.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. See also Fed.R.Civ.P. 6(a), (b), (d). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Kenneth M. Karas, at the Honorable Charles L. Brieant, Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. Requests for extensions of time to file objections must be made to Judge Karas.