Opinion
18cv12201 (JGK)
2020-03-24
Jorge LOPEZ, Plaintiff, v. Nancy BERRYHILL, Defendant.
ORDER
:
The Court has received and reviewed the Report and Recommendation of Magistrate Judge Lehrburger dated March 2, 2020. No objections have been filed and the time for filing objections has passed. In any event, the Court finds that the Report and Recommendation are well founded and should be adopted.
Therefore, the Commissioner's motion for judgment on the pleadings is granted and the plaintiff's motion for judgment on the pleadings is denied. The Clerk is directed to enter judgment in favor of the Commissioner and to close this case. The Clerk is also directed to close all pending motions.
SO ORDERED.
REPORT AND RECOMMENDATION TO HON. JOHN G. KOELTL: SOCIAL SECURITY APPEAL
ROBERT W. LEHRBURGER, United States Magistrate Judge.
JORGE LOPEZ, Plaintiff,
- against
COMMISSIONER OF SOCIAL SECURITY, Defendant.
Plaintiff Jorge Lopez, represented by counsel, commenced the instant action against Defendant Commissioner of the Social Security Administration (the "Commissioner"), pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking review of the Commissioner's decision that Lopez is not entitled to disability insurance benefits under 42 U.S.C. § 423 et seq. The parties have submitted cross-motions pursuant to Rule 12(c) seeking judgment on the pleadings. (Dkts. 21, 23.) For the reasons stated below, the Commissioner's motion should be GRANTED, and Lopez's motion should be DENIED.
Background
A. Summary of Claim and Procedural History
For several years, Lopez worked as a truck driver for the United Parcel Service ("UPS"). On May 19, 2015, however, Lopez filed an application for disability insurance benefits, alleging disability beginning on January 3, 2015. (See Administrative Record, Dkt. 16 ("R.") at 182.) Lopez claimed disability due to a right shoulder injury (which required multiple surgeries), a left knee injury, and wrist injuries. (R. at 98, 213.) On June 29, 2015, the Social Security Administration (the "Administration") denied his claim, determining that Lopez's conditions, taken together with his "age of 51 years, [his] education of 8 years, and [his] experience" would not "prevent [him] from working" within a year of January 3, 2015. (R. at 111.) Lopez subsequently requested a hearing before an Administrative Law Judge ("ALJ") to review his claim (R. at 115), which took place on August 8, 2017 before ALJ Michael Carr (the "Hearing"). (R. at 46-86.) At the Hearing, Lopez was represented by his current counsel, Edward J. Madigan. (R. at 46.) On February 14, 2018, ALJ Carr issued a decision finding Lopez not disabled for the relevant time period. (R. at 25, 28-39.) Lopez timely appealed the ALJ's decision to the Appeals Council, which denied Lopez's request for review on November 2, 2018, rendering it the final determination of the Commissioner. (R. at 1-7.)
On December 26, 2018, Lopez filed the operative complaint (Dkt. 1, the "Complaint") seeking district court review pursuant to 42 U.S.C. § 405(g). On July 31, 2019, the Honorable John G. Koeltl (U.S.D.J.) referred this matter to the undersigned for a Report and Recommendation. (Dkt. 17.)
On August 7, 2017, Lopez filed several additional reports in support of his disability claim that ALJ Carr refused to consider as untimely. (See R. at 87-97 (untimely records).) ALJ Carr indicated that such untimely records "were either duplicative or from a source not timely identified by the representative" and noted that they were neither considered nor exhibited. (R. at 28.) Despite citing to certain of these untimely records in support of his arguments (Dkt. 21 at 7, 8), Lopez fails to proffer any basis for this Court to overturn ALJ Carr's decision to disregard these untimely records and this Court sees none. See 20 C.F.R § 404.935(a) (requiring parties to submit written evidence to presiding ALJ "no later than 5 business days before the date of the scheduled hearing" and advising that the presiding ALJ may "decline to consider or obtain the evidence" if submitted late). But, even if the Court were to consider the late-submitted records, they would make no difference to the outcome. A portion of these records are centered on Lopez's sciatica pain, which ALJ Carr did not identify as a "severe" impairment that could serve as a basis for disability. (See R. at 89, 93-95 (untimely records); R. at 31 (severe impairments).) As Lopez has not challenged this portion of ALJ Carr's decision, Lopez's alleged sciatica is irrelevant to the issues before this Court. The remaining untimely records either reconfirm facts stated elsewhere in the lengthy medical record or present evidence of treatment that pre-dates the onset of Lopez's alleged disability and do not counter the challenged portions of ALJ Carr's decision. (See R. at 87-88 (January 5, 2015 MRI of Lopez's right shoulder confirming rotator cuff tear ); R. at 90 (July 11, 2015 letter from Dr. Julio E. Sotelo stating that Lopez could not continue working as a truck driver due to his ailments); R. at 91-92 (copy of February 10, 2015 note on Lopez's first rotator cuff repair ); R. at 96-97 (May 18, 2013 MRI of Lopez's left knee).)
As stated above, Lopez's initial application for disability insurance benefits claimed disability due to a right shoulder injury, a left knee injury, and wrist injuries. (R. at 98 (listing "post right shoulder arthroscopy, double row rotator cuff repair, left knee, both wrists" as injuries causing disability).) But, at the Hearing, Lopez testified that he also suffers from diabetes, vertigo, obesity, sciatica, and depression, all of which prevent him from working. (R. at 68, 72-74.) The following discussion addresses each of the claimed injuries and conditions.
1. Right Shoulder Injury
On or about January 3, 2015, Lopez injured his right shoulder while "trying to turn [a] lever" at work and immediately felt a "popping sensation" followed by "severe pain." (R. at 374.) Five days later, Lopez had an initial consultation with Dr. Marc Levinson of Seaport Orthopedic Associates where he reported that his right shoulder pain was "constant" and rated it a "10" on a scale of 1 to 10, limiting "his ability to lift, stand, carry, walk, run, climb stairs, exercise, do overhead activities and reach behind back" and leaving him unable to bathe or dress without assistance. (R. at 361.) Dr. Levinson diagnosed Lopez with "[i]nternal derangement of the right shoulder" and a "rotator cuff tear" and concluded that Lopez was "totally disabled" at that time. (R. at 363.) On January 14, 2015, Lopez met with orthopedic surgeon Dr. Darren F. Friedman of Seaport Orthopedic Associates. (R. at 366-368.) Dr. Friedman concluded that "[s]econdary to findings on MRI as well as findings on clinical examination [Lopez] is a candidate for right shoulder arthroscopy and rotator cuff repair and debridement." (R. at 367.) After discussing treatment options with Dr. Friedman, Lopez elected to proceed with surgery. (Id. )
Dr. Friedman performed surgery on February 10, 2015, which included "glenohumeral joint debridement" and an "arthroscopic double-row rotator cuff repair." (R. at 290-291.) Dr. Friedman noted that there were no complications during the surgery. (R. at 291.) Following the procedure, Dr. Friedman noted that Lopez's postoperative plan included use of an abduction sling for six weeks with immediate "table slide and passive motion," with active motion beginning when the sling was removed and rotator cuff strengthening beginning after three months. (Id. )
On February 18, 2015, Lopez had a follow up visit with Dr. Friedman. (R. at 281-282.) Dr. Friedman noted that Lopez "d[id] not complain of any significant discomfort," but had "pain on and off" that was treatable with medication. (Id. ) At that time, Lopez was "ambulating without any assistive devices" and his right arm was in a sling (as prescribed) and would remain in a sling for another five weeks. (Id. ) Lopez visited Dr. Friedman again on March 13, 2015, when he reported "pain and aching" in his right shoulder. (R. at 283.) Dr. Friedman recommended that Lopez keep his right arm in a sling, continue with physical therapy for "passive motion and modalities" and begin active motion "after 6 weeks." (Id. )
On April 20, 2015, Lopez returned for another follow up visit with Dr. Friedman. (R. at 284-285.) At that visit, Lopez reported that he "continue[d] to have significant pain and discomfort" in his right shoulder, leaving him "[u]nable to actively move the arm" and causing him difficulty with physical therapy and sleeping. (R. at 284.) Dr. Friedman expressed concern about Lopez's "worsening discomfort," requested an ultrasound to assess the rotator cuff repair, and concluded that, at that time, Lopez was 100% disabled regarding his right shoulder. (Id. ) Lopez had the ultrasound on May 5, 2015, and attended another follow up appointment with Dr. Friedman the next day. (R. at 292-294, 286-287.) During that appointment, Dr. Friedman noted that the ultrasound "pick[ed] up biceps tenosynovitis" and, taken together with Lopez's "persistent pain and discomfort," recommended a "right shoulder ultrasound-guided intra-articular glenohumeral corticosteroid injection" and a "proximal biceps tendon sheath ultrasound-guided corticosteroid injection," both to be done by Dr. Levinson. (R. at 286.) On May 8, 2015, two days later, Dr. Friedman drafted a letter stating that Lopez "is totally disabled for work pending next evaluation." (R. at 297.)
Dr. Levinson performed the prescribed steroid injection on May 21, 2015. (R. at 353.) Dr. Levinson reported that Lopez felt "relief" after the injection. (Id. ) On June 1, 2015, Lopez had another follow up appointment with Dr. Friedman following the prescribed injections. (R. at 348-49.) Lopez reported that the injection was "quite helpful" and that he was feeling "significantly better," experiencing minimal pain and no sleeping issues. (R. at 348.) Dr. Friedman concluded that Lopez was "currently 50% temporarily disabled regarding right shoulder," prescribed physical therapy to work on stretching and strengthening and asked to see Lopez for another follow up appointment in approximately two months to discuss "return to work dates." (Id. )
On July 10, 2015, Lopez had an initial consultation with Dr. Andrew Brown of NYU Langone Seaport Orthopedics. (R. at 338-342.) At that appointment, Lopez reported constant pain that rated a "5" on a scale from 1 to 10, but worsened with exercise, walking, showering, and lifting and inhibited his ability to lift, carry, walk, and run. (R. at 338.) Dr. Brown reported that Lopez's mobility was "minimally impaired;" that Lopez used no ambulatory aids; that Lopez was able to dress slowly and with pain; and that Lopez's gait was normal, heel walking was normal, and toe walking was normal. (R. at 339.) Further, Dr. Brown reported that "[a]ll joints of the upper extremities show range of motion was within normal limits except for at the left shoulder," that "[m]uscle testing was normal except for at the left shoulder and the right hand," and that there was "right anterior shoulder and posterior shoulder tenderness." (Id. ) Dr. Brown recommended that Lopez continue physical therapy and exercise at home, and prescribed Mobic (an anti-inflammatory drug). (R. at 340.) Dr. Brown concluded that Lopez was "totally disable[d] from his job and partially disabled (60% temporary impairment) for a different job involving light work." (Id. )
Lopez had a follow up appointment with Dr. Brown on August 27, 2015 where he reported that, while physical therapy afforded him temporary relief and some improvement in function, he remained "significantly limited" in movement of his right upper extremity. (R. at 311.) Dr. Brown concluded that Lopez remained "totally disabled for his job description," but concluded that "[i]n relation to ‘any job’ [Lopez] would be limited to light work as defined by the Dictionary of Occupational Titles with the added restriction of no lifting over 10 pounds approximately 15% of the day with the right arm, no overhead and repetitive type activities with the right upper extremity" and had a "60% temporary impairment." (R. at 313.)
On September 8, 2015, Dr. Brown conducted another MRI of Lopez's right shoulder, concluding that his "proximal long biceps tendon appear[ed] split" and that there "appear[ed] to be a delaminating tear of the articular cartilage along the anterior-inferior glenohumeral joint." (R. at 323-33.) Ten days later, Lopez saw Dr. Brown again. (R. at 320-22.) Lopez reported that his symptoms had not worsened without physical therapy, but continued to have right shoulder pain rated a "5" on a scale of 1 to 10. (R. at 320.) Dr. Brown recommended that, in light of Lopez's stasis, he be reevaluated by Dr. Friedman to see whether further surgical intervention was warranted. (R. at 321-22.) Dr. Brown concluded that Lopez "remain[ed] totally disabled for his job description," but maintained that he could perform "light work ... with the added restriction of no lifting over 10 pounds approximately 15% of the day with the right arm, no overhead and repetitive type activities with the right upper extremity" and that he had a "60% temporary impairment." (R. at 322.) In addition, Dr. Brown noted that Lopez had begun experiencing pain in his left shoulder due to overuse, finding that motion in his left shoulder was restricted by approximately 5-10% in all planes and recommending physical therapy for Lopez's left shoulder. (Id. )
On September 11, 2015, Dr. Jeffrey Schwartz examined Lopez as part of his worker's compensation claim for relief following the work-related injury he suffered on January 3, 2015. (R. at 657-661.) As of that date, Lopez reported that he was no longer receiving active treatment for his injury, but was taking painkillers and still in pain. (R. at 657.) Lopez described his pain as a "sharp, stabbing, and pulling" pain that "radiates down his arm." (Id. ) Lopez reported that he could walk five city blocks "without too much pain," but had difficulty with stairs and could not sit for more than 20 minutes before he is in too much pain to continue. (Id. ) Dr. Schwartz examined Lopez's right shoulder, which revealed "no tenderness to palpation," "no effusion," and "no muscle atrophy," but did reveal impingement. (R. at 659.) Dr. Schwartz's examination also revealed a limited range of motion in all directions. (Id. ) As a result, Dr. Schwartz concluded that there was "evidence of moderate partial causally related orthopedic disability," but that he was capable of returning to work with certain restrictions (i.e., no working above shoulder level with the right arm and no lifting of greater than 15 pounds with his right arm). (R. at 660.)
On November 4, 2015, Lopez had another consult with Dr. Friedman to discuss his ongoing right shoulder pain. (R. at 395-97.) Lopez reported that he "continues to have significant pain and discomfort" in his right shoulder, which had worsened "over the past month or so." (R. at 395.) That pain left him unable to do any pushing or pulling and gave him difficulty with overhead lifting and use. (Id. ) Upon further examination, Dr. Friedman found that there was a "SLAP" tear (i.e., an injury to the ring of cartilage that surrounds the socket of the shoulder joint) in Lopez's right shoulder and determined that he was a candidate for surgery. (R. at 396.) Dr. Friedman concluded that Lopez was "75% temporarily disabled" in his right shoulder, but drew no conclusions about Lopez's ability to work. (Id. ) Following consult with Dr. Friedman, Lopez elected to proceed with a second surgery. (Id. )
Approximately a month later, on December 1, 2015, Lopez saw Dr. Dhvani Doshi at Settlement Health for a physical. (R. at 500-01, 519-23.) During that visit, Lopez stated that he was not in pain, but was unable to extend his right arm above ninety degrees and showed reduced strength in that arm. (R. at 500, 521.) Dr. Doshi observed that Lopez's left arm was "normal." (R. at 521.) On December 29, 2015, Lopez visited Dr. Brown for another follow up appointment. (R. at 635-38.) At that visit, Lopez reported continued right shoulder pain rated as a "6" on a scale of 1 to 10. (R. at 635.) Dr. Brown reported that Lopez's range of motion of the right shoulder was limited, but his conclusions about Lopez's ability to return to work were unchanged. (R. at 636-37.) Dr. Brown recommended that Lopez proceed with surgery and transferred Lopez's care to Dr. Friedman. (R. at 636.)
On January 26, 2016, Dr. Friedman performed a second surgery on Lopez's right shoulder. (R. at 622-24.) Specifically, Dr. Friedman performed a "glenohumeral joint debridement," a "glenohumeral synovectomy," a "subacromial decompression with partial acromioplasty," and an "open subpectoral biceps tenodesis." (R. at 622.) During surgery, Dr. Friedman observed that the original rotator cuff repair had healed. (R. at 623.) Following surgery, Dr. Friedman recommended sling immobilization for a month with "active and passive motion" to begin afterwards. (R. at 624.) Lopez attended his first post-surgery follow up on March 4, 2016. (R. at 416.) At that appointment, Dr. Friedman noted that Lopez was "doing well" and concluded that his right shoulder had "significantly improved" as Lopez's range of motion had improved and was progressing further with therapy. (Id. ) Lopez complained of left shoulder pain due to overcompensation. (Id. ) Dr. Friedman concluded that, as of that appointment, Lopez was "100% temporarily disabled" in his right shoulder. (Id. ) Dr. Friedman drew no conclusions on Lopez's ability to work in his former role or in any other role.
At a subsequent follow up appointment on May 4, 2016, Dr. Friedman noted that Lopez "continues to do well," but has "some fatigue with repetitive lifting." (R. at 625.) Dr. Friedman noted that Lopez's "shoulder [was] feeling much better ... [his] range of motion significantly improved" and concluded that he was "happy with [Lopez's] progress." (Id. ) Lopez reported to Dr. Friedman that he had continued left shoulder pain and discomfort from overuse. (Id. ) Dr. Friedman concluded that Lopez was "currently 75% temporarily disabled" in his right shoulder. (R. at 626.) Dr. Friedman set no formal follow up date, instead directing Lopez to follow up with his office "if no improvement or symptoms worsen." (Id. ) Lopez presents no evidence of returning to Dr. Friedman's office after May 2016.
On May 17, 2017, Lopez did sit for another MRI on his right shoulder, which reported a "moderate to large amount of fluid in the subacromial subdeltoid bursa" and "a mild widening of the acromioclavicular joint which may be posttraumatic or postsurgical." (R. at 722.) The MRI showed "no rotator cuff re-tear." (R. at 723.)
2. Knee Injuries
Prior to the onset date to his alleged disability, Lopez sought treatment for left knee pain, swelling, clicking, and difficulty walking. (R. at 231-32.) Specifically, on May 18, 2013, Lopez had an MRI done on his left knee, which showed "medial collateral ligament thickening and inhomogeneity extending to its femoral attachment site representing a sprain." (R. at 232.) Following that, and despite receiving extensive treatment for his right shoulder following a work-related injury in January 2015 (detailed above), Lopez did not seek out any treatment for a knee-related issue until June 22, 2015, as a consequence of the consultative examination conducted by Dr. Benjamin Kropsky at the Administration's request. (R. at 300-305.) As part of Dr. Kropsky's consultative examination, he requested an x-ray of Lopez's left knee, which showed "no evidence of acute fracture, dislocation, or destructive bony lesion" and that the "joint spaces" in his knee were "relatively well maintained." (R. at 306-308.)
Lopez did not next seek treatment for knee pain until February 16, 2016. That day, Lopez sought treatment for "bilateral knee pain" from Dr. Doshi. (R. at 479-81.) Dr. Doshi referred to Lopez's bilateral knee pain as a "new problem," but noted that Lopez referred to it as a "chronic" problem that had existed for "several years." (R. at 480.) At that time, Lopez alleged that his knees hurt most when coming down stairs and that he had to "stop frequently when walking"; Dr. Doshi did not observe any redness or swelling, observed that Lopez retained his full range of motion, but noted that there was "tenderness to palpation along medial knees bilaterally." (Id. ) Dr. Doshi then called for an x-ray of Lopez's knees and an orthopedic consult. (R. at 481.) The x-ray revealed "slight narrowing of the medial compartments mild productive changes around the medial aspect of the right knee joint." (R. at 550.)
On May 12, 2016, Lopez sought additional treatment for bilateral knee pain from Dr. Mitchell Weiser of Mt. Sinai's Orthopedics Department. (R. at 547-49.) During that visit, Lopez reported that he had suffered from bilateral knee pain "for several years," but that it had recently worsened. (R. at 547.) Lopez reported that he had difficulty with stair use and rated his pain a "7" on a scale of 1 to 10. (Id. ) Lopez stated that he had a one-block walking radius. (Id. ) Dr. Weiser observed no effusions or erythema, and noted that his range of motion was between zero to 110 degrees bilaterally, but noted that an x-ray of his knees showed that Lopez had mild degenerative joint disease and "slight joint space narrowing." (R. at 547-48.) To treat Lopez's knee pain, Dr. Weiser recommended weight loss and a steroid injection (which Lopez declined). (R. at 548.)
Approximately one year later, on May 17, 2017, Lopez had an MRI on his right knee at the behest of Dr. Matthew Mendez-Zfass, an orthopedic surgeon. (R. at 715-17.) According to the MRI, Lopez's right knee showed a "[s]mall root attachment tear of the posterior horn of the medial meniscus with associated reactive marrow edema on the adjacent tibial plateau," a "joint effusion with popliteal cyst," and a "moderate patellofemoral degeneration." (R. at 716.) As a result, Dr. Mendez-Zfass performed a medial meniscectomy and chondroplasty on July 14, 2017 and, following the procedure, advised Lopez to use a cane to assist in recovery and attend physical therapy. (R. at 552, 554.)
3. Diabetes & Obesity
Lopez was diagnosed with diabetes mellitus on or around December 18, 2015 by his primary care physician, Dr. Doshi. (R. at 494-99.) At that visit, Dr. Doshi began Lopez on Glucophage and instructed him on how to use a glucometer to measure his fasting sugar each morning. (R. at 496.) Approximately two weeks after his initial diagnosis, Lopez returned to Dr. Doshi for a follow up visit to review his glucose readings. (R. at 490-93.) Dr. Doshi noted that his fasting sugar was "still very elevated," as it was running between 242-277 (as opposed to the recommended 70-130). (R. at 491-92.) On January 25, 2016, Lopez had another follow up visit with Dr. Doshi. (R. at 486-89.) According to Dr. Doshi, Lopez's fasting sugar had improved in the weeks since his initial diagnosis. (Id. ) That same day, Lopez had an initial consultation with nutritionist Eduardo Gonzalez to discuss potential diet and exercise regimens that could assist in treating his "uncontrolled" diabetes. (R. at 483-85.) On February 16, 2016, Lopez had a follow up visit with Dr. Doshi where, among other things, she noted that his diabetes was "doing better." (R. at 480.) On March 4, 2016, Lopez had a follow up visit with Mr. Gonzalez to further discuss the appropriate diet and exercise regimen for treating his diabetes. (R. at 473-76.) Approximately two weeks later, on March 14, 2016, Lopez had a follow up visit with Dr. Doshi where he reported having occasional sugar lows as evidenced by sweating and shaking. (R. at 470-71.) Again, Dr. Doshi referred to his diabetes as "uncontrolled," but made no changes to his treatment. (Id. )
On May 19, 2016, Lopez had an appointment with Dr. Doshi, the report for which contained a summary of his medical ailments. (R. at 464-468.) In that summary, Dr. Doshi listed the various medications Lopez was then taking to treat his diabetes, which included metformin, tradjenta, glipizide, lisinopril, and aspril. (R. at 465.) Dr. Doshi described Lopez's diabetes as "uncontrolled," called for a change to one of his medications "to help avoid lows" and referred him to a podiatrist. (R. at 466.) On July 19, 2016, Lopez attended an appointment with Dr. Poff, another of his primary care physicians. (R. at 460-463.) Dr. Poff also acknowledged Lopez's diabetes, and recommended that he continue his current treatment and incorporate additional diet and exercise. (R. at 462.) On October 17, 2016, Lopez attended a follow up appointment with Dr. Poff. (R. at 450-53.) Dr. Poff reported that his diabetes was "not well controlled," but he did not recommend a change in medication and instead maintained a recommendation that Lopez "work harder on diet and exercise." (R. at 451-52.)
4. Vertigo
Lopez has suffered from vertigo since at least 2015. On July 15, 2015, Lopez saw Dr. Ashutosh Kacker of Weill Cornell Medicine to treat "episodes of dizziness occurring daily, often triggered by bending forward or turning his head quickly." (R. at 12.) Dr. Kacker performed various examinations on Lopez, all of which appeared to yield normal results. (R. at 12-13.) To treat his vertigo, Dr. Kacker recommended "vestibular rehab," weight loss, and Flonase nasal spray daily. (R. at 13.) Dr. Kacker also asked that Lopez return for a follow up in one month. (Id. ) But, according to the record before this Court, Lopez did not seek treatment for his vertigo again until April 13, 2016, when he saw neurologist Dr. Noam Harel at Mount Sinai. (R. at 420-22.) Following his examination, Dr. Harel, like Dr. Kacker, referred Lopez to vestibular rehabilitation. (R. at 419.) In August 2016, Lopez saw Dr. Yaowaree Leavell at Mount Sinai. (R. at 432.) Dr. Leavell requested an otolaryngology consultation, reporting that he had a head impulse test to the left, which was positive for ringing in ears, sensorineural hearing loss, and right ear fullness. (R. at 433.)
While there is little discussion in the record about whether Lopez attended the vestibular rehabilitation recommended by Dr. Harel or whether the otolaryngology consultation sought by Dr. Leavell yielded additional clarity, it is clear that Dr. Poff – one of Lopez's primary care physicians – referred Lopez for a neurology appointment in light of his "chronic vertigo" as recently as June 8, 2018. (R. at 9.)
5. Consultative Examination
On June 22, 2015, Dr. Benjamin Kropsky performed an independent medical examination of Lopez at the Administration's request. (R. at 299-308.) Dr. Kropsky identified Lopez's "chief complaint" as "osteoarthritis in both knees" and a "rotator cuff tear of the right shoulder." (R. at 300.) Dr. Kropsky stated that Lopez was "limited in raising, reaching, pulling, and pushing with the upper right extremity," had "difficulty with lifting and carrying and does not lift more than 2 lb or 3 lb with the right hand," and occasionally dropped objects when he tried to lift them. (Id. ) Lopez also reported that he was beginning to experience pain in his left shoulder, which he rated a "6" on a scale of 1 to 10, but admitted that he had not had "x-rays or other diagnostic studies for the left shoulder" and could still lift up to 20 pounds with his left hand. (Id. )
Lopez also reported experiencing lower back pain and abdominal discomfort. (R. at 300-301.) Lopez's lower back pain began "recently," after he noticed a "clicking" when he stood up straight. (R. at 300.) Lopez rated his lower back pain an "8" on a scale of 1 to 10 and stated that the pain radiated into his left leg. (Id. ) Lopez's back pain gave him difficulty with prolonged sitting and interfered with his ability to lift and carry objects. (Id. ) For his abdominal discomfort, Lopez had received a sonogram showing that he had an enlarged liver and a test showing that he had H. pylori. (R. at 301.) At the time of Dr. Kropsky's examination, Lopez was receiving treatment for H. pylori. (Id. ) Despite the difficulties posed by his ailments, Lopez reported showering, bathing, and dressing himself daily. (Id. ) Lopez also stated that he goes shopping once per week and watches television, reads, and goes to the park. (Id. )
Dr. Kropsky performed a physical examination of Lopez. (R. at 302.) Dr. Kropsky observed that Lopez "appear[ed] to be in no acute distress," that his gait and stance were "normal," that he could "walk on his toes without difficulty," and that he needed no help changing for the exam or getting on or off the exam table. (Id. ) At the same time, Dr. Kropsky reported that Lopez had mild difficulty walking on his heels, that his squat was "halfway," and that he experienced mild to moderate difficulty rising from a chair due to his back pain. (Id. ) Upon further examination, Dr. Kropsky observed that Lopez had a limited range of motion in his lumbar spine (i.e., a 45 degree range of motion in his lumbar spine, between a 20 and 30 degree lateral range of motion bilaterally, and a 15 degree rotary range of motion bilaterally) and in his right shoulder (i.e., 110 degrees forward elevation, 110 degrees abduction, 15 degrees adduction, full external rotation, and 30 degrees internal rotation). (R. at 303.) Dr. Kropsky also observed mild swelling and moderate tenderness of both Lopez's knees, but noted that there was no redness, heat, or effusion and described an x-ray of Lopez's left knee as "negative." (Id. )
Following his examination, Dr. Kropsky diagnosed Lopez with osteoarthritis of the knees ; right shoulder pain and limited range of motion secondary to a rotator cuff tear ; left shoulder pain; lower back pain with lumbar radiculopathy ; pre-diabetes; fatty liver ; H. pylori infection; and obesity. (R. at 304.) Lopez's prognosis was "fair" on all counts. (Id. ) But Dr. Kropsky did note that Lopez had "mild to moderate limitations for prolonged walking and climbing stairs," a "moderate to severe limitation for lifting and carrying with the right upper extremity," and "a mild to moderate limitation for lifting and carrying with the left upper extremity secondary to the low back pain." (Id. )
C. Hearing Testimony
During the August 8, 2017 hearing before ALJ Carr, Lopez testified that he had worked for UPS in different roles from 1989-2015, approximately 26 years. (R. at 51-52.) From 1989 to 2006, Lopez served as a package car driver; from 2006 to 2015, Lopez served as a tractor-trailer truck driver. (Id. ) Lopez stopped working for UPS as a tractor-trailer truck driver on or about January 3, 2015, when his alleged disabilities prevented him from continuing. (R. at 50-51.) As a package car driver, Lopez had to lift and carry packages weighing up to 70 pounds for thirteen-hour stretches. (R. at 53 ("I started delivering packages at nine o'clock in the morning to 10 o'clock at night. I can't tell you how many times.").) As a tractor-trailer driver, Lopez would drive a route from New York, New York to Houston, Texas, to Jacksonville, Florida, and then would return to New York. (R. at 54.) In addition to long stretches of driving, Lopez and his colleagues were responsible for "loading" and "hook[ing] up" the trailers that they were transporting, along with checking and fueling the truck. (R. at 54-56.)
Before the onset of his alleged disabilities, Lopez had surgery on his right shoulder and his left knee in 2005. (R. at 64.) Following a year-long recovery, Lopez returned to work with UPS and continued working there until becoming disabled in January 2015. (Id. ) Since January 3, 2015 (the alleged onset date), Lopez testified that he has had two surgeries performed on his right shoulder. (R. at 62.) Lopez testified that his right shoulder has not improved despite the two surgeries, leaving him unable to "carry anything" and making it difficult for him to shower, brush his hair, and get dressed. (R. at 64; R. at 69 ("[W]hen I put [on] my shirt, problems with my shoulder. Actually, both shoulders, because I'll overuse my left shoulder, and that's where I got problems, too."); R. at 70 ("With pain any time when I shave, or when I brush my hair. I can't lift my right arm.").)
Lopez also testified to experiencing pain in both his left and right knees. While he has not sought out treatment for his left knee since January 3, 2015, Lopez testified that the knee bothers him when he goes up stairs, and that, when he walks, he has "to stop, like, every five blocks to rest." (R. at 65.) Lopez testified to having surgery on his right knee in July 2017, the need for which came about after he slipped while climbing a flight of stairs and felt a "twist on [his] knee." (Id. ) Following surgery, Lopez required use of a cane, testifying that, as of the Hearing, he could only walk "about three blocks, slow" before requiring rest. (R. at 66.) ALJ Carr observed that Lopez used his cane at the Hearing. (R. at 57.) As of the Hearing, Lopez was still undergoing weekly physical therapy for his right knee and had been prescribed Oxycodone for pain management. (R. at 68-69, 76-77.)
While not included in his original request for disability insurance benefits, Lopez also testified to the impact that his diabetes, vertigo, sciatica, and depression had on his ability to work and to perform day-to-day tasks. Lopez testified that he learned he was diabetic in November 2016. (R. at 61.) As of the Hearing, Lopez treated his diabetes through medication and exercise as prescribed. (Id. ) Lopez testified that his diabetes was "killing [him]" by causing him to need to use the bathroom between "five to six times" each hour, leaving him feeling uncomfortable performing day-to-day tasks outside his home. (R. at 72-73.)
Lopez testified that he has taken anti-dizziness medication to treat symptoms of vertigo for approximately two years. (R. at 73.) Lopez experiences vertigo (which he sometimes describes as "losing his balance") approximately three to four times each week. (Id. ) Lopez's vertigo contributes to his difficulty in performing day-to-day tasks like bathing, getting dressed, and laying down. (R. at 69, 71-72.) Lopez testified that his vertigo would impact his ability to return to being a tractor trailer driver for UPS. (R. at 60.)
Lopez also testified that he has suffered from sciatica since January 2015, which prevents him from sitting down or standing comfortably for long stretches of time. (R. at 71-72.) Lopez testified that he can only sit or stand comfortably for fifteen minutes before "feeling the motion and the pain in there" and feeling tired. (Id. ) Lopez has not yet received treatment for his sciatica, but testified that the physician who performed surgery on his right knee in July 2017 planned "to see that after [Lopez is] done with [his] knee and the shoulder." (R. at 74.)
During the Hearing, Lopez also mentioned that he suffers from depression, which "sometimes ... don't let [him] do anything." (R. at 69.) Indeed, Lopez indicated that his depression will prevent him from leaving his home, testifying that he will "try to watch TV, listen to music, and back and forth. And sometimes I don't want to go outside." (Id. ) Lopez was not asked about, nor did he testify to, receiving treatment for his depression.
Following Lopez's testimony, ALJ Carr heard testimony from Thomas Grassick, a vocational expert. (R. at 77.) In relevant part, Grassick testified that a hypothetical individual "who is limited to the light exertional level ... except that this individual can lift and or carry 10 pounds occasionally with the right upper extremity, and lesser weights frequently, again with the right upper extremity" who also "cannot climb ladders, ropes, or scaffolds ... [and] cannot engage in overhead reaching with the right upper extremity, and cannot be exposed to unprotected heights" would be unable to return to Lopez's prior work, but would be able to hold a job in the national economy. (R. at 78-80.) Specifically, Grassick testified that such a hypothetical individual could perform work as an office helper, routing clerk, and checker. (R. at 79-80.)
D. The Commissioner's Decision
On February 18, 2018, ALJ Carr issued his decision, concluding that Lopez's health conditions – albeit severe – did not meet the requirements to be found "disabled" under 42 U.S.C. § 423 et seq. (R. at 28-39.) As required, ALJ Carr conducted the five-step evaluation process for determining whether an individual is disabled pursuant to 20 C.F.R. 404.1520(a). (R. at 30-37.) ALJ Carr determined that Lopez met the insured status requirements of the Act, had not engaged in substantial gainful activity during the period of alleged disability, and had a number of severe impairments (i.e., knee disorder, right shoulder dysfunction status post arthroscopic repair of a torn rotator cuff, diabetes mellitus, and obesity ). ALJ Carr concluded, however, that these severe impairments did not meet the severity of any one of the listed impairments included in 20 C.F.R. 404, Subpart P, Appendix 1. (R. at 30-32.) Specifically, ALJ Carr found that Lopez's orthopedic impairments failed to "meet or medically equal" any of the sub-listings of the "Musculoskeletal Body System Listings" category, and that Lopez's diabetes did not "meet or medically equal" the "Endocrine Disorder" listing. (R. at 32.)
In reviewing Lopez's medical history and treatment (both by his personal physicians and by the consultative examiner engaged by the Administration), ALJ Carr concluded that Lopez has the residual functional capacity ("RFC") to perform "light work" (as defined in 20 C.F.R. 404.1567(b) ), but could only lift and/or carry 10 pounds occasionally (and lesser weight frequently) with his right upper extremity; could stand and/or walk for 4 hours of an 8-hour work day; should never climb ladders, ropes, or scaffolds, but could occasionally climb ramps and stairs and could occasionally balance, stoop, kneel, crouch, and crawl; should never perform overhead reaching with his right upper extremity; and should never work at unprotected heights. (R. at 32-33.) With this conclusion in mind, ALJ Carr found that Lopez could not perform any of his past relevant work for UPS, but could "mak[e] a successful adjustment to other work that exists in significant numbers in the national economy" in light of his age, education, work experience, and RFC, particularly in light of the testimony provided by vocational expert Grassick. (R. at 38.)
Applicable Law
A. Standard of Review
The court's review of an appeal of a denial of disability benefits requires two levels of inquiry. Johnson v. Bowen , 817 F.2d 983, 985 (2d Cir. 1987). First, the court must determine whether the Commissioner applied the correct legal principles in reaching a decision. 42 U.S.C. § 405(g) ; Tejada v. Apfel , 167 F.3d 770, 773 (2d Cir. 1999). Second, the court must decide whether the Commissioner's decision is supported by substantial evidence in the record. Id. So long as they are supported by substantial evidence in the administrative record, the findings of the ALJ after a hearing as to any facts are conclusive. 42 U.S.C. § 405(g).
An ALJ's failure to apply the correct legal standard constitutes reversible error if that failure might have affected the disposition of the case. Kohler v. Astrue , 546 F.3d 260, 265 (2d Cir. 2008). This applies to an ALJ's failure to follow an applicable statutory provision, regulation, or Social Security Ruling ("SSR"). See, e.g. , id. (regulation); Schaal v. Callahan , 993 F. Supp. 85, 93 (D. Conn. 1997) (SSR). In such a case, the court may remand the matter to the Commissioner especially if deemed necessary to allow the ALJ to develop a full and fair record to explain his or her reasoning. Crysler v. Astrue , 563 F. Supp. 2d 418, 429 (N.D.N. Y 2008).
If the reviewing court is satisfied that the ALJ applied correct legal standards, then the court must "conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision." Brault v. Social Security Administration Commissioner , 683 F.3d 443, 447 (2d Cir. 2012) (per curiam ) (quoting Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009) ). The Supreme Court has defined substantial evidence as requiring "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). Pursuant to the substantial evidence standard, a reviewing court may reject an ALJ's findings of fact "only if a reasonable factfinder would have to conclude otherwise." Brault , 683 F.3d at 448 (emphasis omitted) (quoting Warren v. Shalala , 29 F.3d 1287, 1290 (8th Cir. 1994) ).
To be supported by substantial evidence, the ALJ's decision must be based on consideration of "all evidence available in [the claimant]'s case record." 42 U.S.C. § 423(d)(5)(B). The Act requires the ALJ to set forth "a discussion of the evidence" and the "reasons upon which [the decision] is based." 42 U.S.C. § 405(b)(1). While the ALJ's decision need not "mention[ ] every item of testimony presented," Mongeur v. Heckler , 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam ), or "reconcile explicitly every conflicting shred of medical testimony," Zabala v. Astrue , 595 F.3d 402, 410 (2d Cir. 2010) (quoting Fiorello v. Heckler , 725 F.2d 174, 176 (2d Cir. 1983) ), the ALJ may not ignore or mischaracterize evidence of a person's alleged disability. See Ericksson v. Commissioner of Social Security , 557 F.3d 79, 82-84 (2d Cir. 2009) (mischaracterizing evidence); Kohler , 546 F.3d at 268-69 (overlooking and mischaracterizing evidence); Ruiz v. Barnhart , No. 01 Civ. 1120, 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring evidence).
If the decision denying benefits applied the correct legal standards and is based on substantial evidence, the reviewing court must affirm; if not, the court may modify or reverse the decision, with or without remand. 42 U.S.C. § 405(g).
B. Legal Principles Applicable to Disability Determinations
Under the Social Security Act, every individual considered to have a "disability" is entitled to disability insurance benefits. 42 U.S.C. § 423(a)(1). The Act defines "disability" as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). A claimant's impairments must be "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." 42 U.S.C. § 423(d)(2)(A).
To determine whether an individual is entitled to receive disability benefits, the Commissioner is required to conduct a five-step inquiry. First, the Commissioner must determine whether the claimant is currently engaged in any substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). Second, if the claimant is not gainfully engaged in any activity, the Commissioner must determine whether the claimant has a "severe impairment" that significantly limits the claimant's ability to do basic work activities. Under the applicable regulations, an impairment or combination of impairments that significantly limits the claimant's ability to perform basic work activities is considered "severe." 20 C.F.R. § 404.1520(c)(a)(4)(ii). Third, if the claimant has a severe impairment, the Commissioner must determine whether the impairment is one of those included in the Listings of the regulations – if it is, the Commissioner will presume the claimant to be disabled, and the claimant will be eligible for benefits. 20 C.F.R. § 404.1520(c)(a)(4)(iii).
If the claimant does not meet the criteria for being presumed disabled, then the Commissioner must next assess the claimant's RFC; that is, the claimant's ability to perform physical and mental work activities on a sustained basis despite his impairments, 20 C.F.R. § 404.1520(e), and determine whether the claimant possesses the RFC to perform the claimant's past work. 20 C.F.R. § 404.1520(a)(4)(iv). Fifth and finally, if the claimant is not capable of performing prior work, the Commissioner must determine whether the claimant is capable of performing other work. 20 C.F.R. § 404.1520(a)(4)(v). The claimant bears the burden of proof at the first four steps. Selian v. Astrue , 708 F.3d 409, 418 (2d Cir. 2013). Once the claimant has established that they are unable to perform their past work, however, the Commissioner bears the burden of showing that "there is other gainful work in the national economy which the claimant could perform." Balsamo v. Chater , 142 F.3d 75, 80 (2d Cir. 1998) (quoting Carroll v. Secretary of Health and Human Services , 705 F.2d 638, 642 (2d Cir. 1983) ).
Discussion
Lopez proffers two arguments in support of reversing (or, alternatively, remanding) ALJ Carr's findings. First, Lopez argues that ALJ Carr failed to follow the medical vocational guidelines to properly determine Lopez's RFC. (Dkt. 21 at 7.) Lopez alleges that ALJ Carr (1) failed to discuss the weight of Lopez's treating physicians and sources in his decision; and (2) reached a finding that was unsupported by Lopez's testimony and the medical evidence, with specific reference to two pieces of evidence contained in the record before ALJ Carr that, according to Lopez, evidence a "less than sedentary" RFC. (Id. at 5-6.) Second, Lopez argues that ALJ Carr failed to "adequately explain" how Lopez did not meet Listings 1.02, 1.03, and 1.08 of the Listing of Impairments contained in 20 C.F.R. Part 404, Appendix 1, and lists a myriad of medical records that purportedly "support[ ] a meeting or equaling" of those Listings. (Id. at 7-8.) The Commissioner opposes, arguing that ALJ Carr's decision is supported by substantial evidence and should be affirmed. (Dkt. 24 at 1.) This Court agrees with the Commissioner.
A. ALJ Carr's RFC Determination Is Supported by Substantial Evidence.
In the heading for this argument, Lopez also alleges that ALJ Carr erred in "fail[ing] to call a medical expert regarding plaintiff's impairments." (Dkt. 21 at 5.) Although it is the "well-established rule in the Second Circuit that the ALJ must develop the record ... the Second Circuit has clarified ... that ‘where there are no obvious gaps in the administrative record, and where the ALJ already possesses a ‘complete medical history,’ the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim.’ " Castagna v. Berryhill , No. 16 Civ. 6908, 2017 WL 3084903, *23 (S.D.N.Y. July 20, 2017) (quoting Swiantek v. Commissioner of Social Security , 588 Fed. Appx. 82, 84 (2d Cir. 2015) (internal brackets omitted)). Lopez fails to expand on this argument at all, let alone point to any evidence of gaps in the 728-page record before this Court that could call for further development of the record through a medical expert. (See Dkt. 21 at 5-6.) Accordingly, this argument is without merit and should be rejected. See Castagna , 2017 WL 3084903 at *23 (dismissing identical argument where the reviewing court found "no reason to believe that ALJ Gonzalez was working with an incomplete record where the record before him already spanned approximately 1,000 pages and included an extensive number of reports from medical professionals" and where claimant's brief "fail[ed] to identify a time period constituting a gap in the record or any other basis to indicate a need for an independent medical examiner to be retained").
In its regulatory guidance, the Administration defines an individual's RFC as "an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis" (i.e., for "8 hours a day, for 5 days a week, or an equivalent work schedule"). Social Security Ruling 96-8p, 1996 WL 374184, at *1 (S.S.A.). An individual's RFC "is not the least an individual can do despite his or her limitations or restrictions, but the most. " Id. (emphasis added).
To properly assess an individual's RFC, the ALJ must examine "all of the relevant evidence in the case record," which includes, but is not limited to, the individual's medical history; the effects of his treatment (e.g., frequency of treatment, duration, disruption to routine, side effects of medication); lay evidence; medical source statements; and evidence of symptoms, including pain, that are reasonably attributed to a medically determinable impairment. Social Security Ruling 96-8p, 1996 WL 374184 at *5. When considering the relevant evidence, the ALJ should afford "controlling weight" to the opinions of a claimant's treating physicians if such opinions are "well-supported by medically acceptable clinical and laboratory diagnostic techniques and ... not inconsistent with the other substantial evidence in the case record." 20 C.F.R. § 404.1227(c)(2). Where an ALJ declines to afford a treating physician's opinion controlling weight, he or she must give "good reasons" for doing so and must consider various factors to determine the amount of weight the opinion should be given, including: (1) the length of the treatment relationship and the frequency of examination, (2) the nature and extent of the treatment relationship, (3) the medical support for the treating physician's opinion, (4) the consistency of the opinion with the record as a whole, (5) the physician's level of specialization in the area, and (6) other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)-(6) ; Schisler v. Sullivan , 3 F.3d 563, 567 (2d Cir. 1993).
Lopez first argues that ALJ Carr "failed to discuss the weight of the treating physicians and sources" in analyzing Lopez's RFC. (Dkt. 21 at 5-6.) But Lopez does not point to any legal or factual support for this argument, perhaps recognizing that there is none. In fact, a substantial portion of ALJ Carr's decision is devoted to reviewing and assigning appropriate weight to each piece of medical evidence presented in the record, including those from Lopez's treating physician, Dr. Brown. (See R. at 32-36.) As part of that review, ALJ Carr recognized that Dr. Brown "opined that [Lopez] had varying degrees of disability during this recovery period" and points to various examples of this in the medical record. (R. at 36.) Despite Dr. Brown's role as Lopez's treating physician, ALJ Carr specifically – and properly – afforded these portions of Dr. Brown's treatment records "little weight" as those conclusions "were rendered for the purposes of establishing disability according to Worker's Comp criteria, which is entirely different from SSA's criteria." (Id. ) Regardless of the source, "the opinion provided in a workers' compensation claim ... is not controlling with respect to a claim of disability claim under the Act." Urbanak v. Berryhill , No. 17 Civ. 5515, 2018 WL 3750513, *24 (S.D.N.Y. July 18, 2018) (rejecting argument that ALJ erred in affording "little weight" to treating physician's findings that plaintiff was 100% disabled where such findings were provided in the context of his worker's compensation claim); Gillespie v. Astrue , No. 09 CV 2198, 2012 WL 3646820, *13 (E.D.N.Y. Aug. 23, 2012) ("Plaintiff's treating physicians opined that he was disabled with regard to workers' compensation. However, those determinations are not dispositive, because the standards for workers' compensation are different than those under the Act."); Flanigan v. Colvin , 21 F. Supp. 3d 285, 308 n.27 (S.D.N.Y. 2014) (collecting cases).
Lopez next argues that ALJ Carr's RFC determination was not supported by the medical evidence and the testimony of the claimant. ( Id. ) In support of this argument, Lopez points to two pieces of record evidence purportedly ignored by ALJ Carr: (1) a letter issued by Dr. Brown on August 27, 2015 stating that Lopez "remain[ed] totally disabled for his job description" and that Lopez "may work with restrictions of lifting no more than 10 lbs and no repetitive and overhead type activities with the right arm"; and (2) the independent medical examination of Dr. Kropsky on June 22, 2015, which was completed at the behest of the Administration. (Id. at 6.) But Lopez fails to recognize that both of these record items were specifically cited in ALJ Carr's decision. (See R. at 34, 36 (discussing and crediting the consultative examination performed by Dr. Kropsky, particularly his conclusion that Lopez "has mild to moderate limitation in prolonged walking, climbing stairs, and moderate to severe limitation lifting/carrying with his right upper extremity"); R. at 34, 36 (discussing and crediting treatment received from Dr. Brown, but ascribing "little weight" to the degrees of disability he assigned Lopez during treatment – including the one assigned on August 27, 2015 – as they were rendered for purposes of establishing disability under worker's compensation).)
Additionally, the opinions rendered by Dr. Brown and Dr. Kropsky highlighted by Lopez do not contradict ALJ Carr's RFC assessment. As stated above, ALJ Carr concluded that Lopez had the RFC "to perform light work," under a number of additional limitations, which included caveats on how much Lopez could lift and/or carry with his upper right extremity and a prohibition on overhead reaching with his right upper extremity. (R. at 32-33.) This assessment is entirely in line with Dr. Kropsky's conclusion that, as of June 22, 2015, Lopez had "mild to moderate limitations for prolonged walking and climbing stairs" and "a moderate to severe limitation for lifting and carrying with the right upper extremity," as well as Dr. Brown's repeated conclusions that Lopez was "totally disabled for his job description," but "may work with restrictions of lifting no more than 10 lbs and no repetitive and overhead type activities with the right arm." (R. at 317; see also R. at 322 (concluding that, as of September 18, 2015, Lopez "remain[ed] totally disabled for his job description" but "in relation to ‘any job’ [Lopez] would be limited to light work ... with the added restriction of no lifting over 10 pounds approximately 15% of the day with the right arm, no overhead and repetitive type activities with the right upper extremity").) These disability determinations are also consistent with the hypothetical RFC considered by vocational expert Grassick, which supposed an individual who could "lift and or carry 10 pounds occasionally with the right upper extremity, and lesser weights frequently, again with the right upper extremity" but could not, among other things, "engage in overhead reaching with the right upper extremity." (R. at 78-80.)
While it is evident to this Court that Lopez's ailments cause him pain and discomfort, it is equally evident that ALJ Carr's determination that Lopez was not totally disabled and has the RFC to work in some capacity is supported by substantial evidence.
B. ALJ Carr's Determination that Lopez's Ailments Did Not Meet Listings 1.02, 1.03, or 1.08 is Supported by Substantial Evidence.
Lopez argues that his ailments met or medically equaled Listing 1.04 in the heading for this argument, and mentions it in passing when he states that "The medical evidence established that the claimant's disabling conditions met or equaled the listings of 1:02, 1:03, 1:04, and 1:08," but fails to present any record evidence in support of this argument. (See Dkt. 21 at 7 (citing medical evidence that allegedly "supports a meeting or equaling of Listings 1:02, 1:03 and 1:08").) Without any evidence to counter ALJ Carr's conclusion that Lopez did not meet or medically equal Listing 1.04, this Court cannot find that ALJ Carr's decision was not supported by substantial evidence. See Johnson v. Colvin , No. 13-CV-6319, 2014 WL 1394365, *6 (W.D.N.Y. April 9, 2014) ("Since Plaintiff is represented by counsel, the Court presumes that if evidence in support of the memorandum's conclusory arguments were to be found, counsel would have cited to it. The Court is not required to comb the record in search of evidence in support of Plaintiff's position."); Dietrich v. E.I. Du Pont de Nemours & Co. , No. 02-CV-678S, 2004 WL 2202656, *9, n.8 (W.D.N.Y. Sept. 28, 2004) ("Not only has Plaintiff failed to provide any of his own medical evidence in support of his prima facie case, but he has also failed to include citations to the medical records Defendant included as exhibits in its moving papers. It is not this Court's duty, obligation, or function to search the record for evidence supporting Plaintiff's case, and this Court declines to do so.").
Lopez next argues that ALJ Carr failed to adequately explain how Lopez did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Dkt. 21 at 6-8.) Specifically, Lopez argues that certain evidence in the record supports a finding that he meets or medically equals Listings 1.02, 1.03, and 1.08. (Id. at 7-8.) While acknowledging that ALJ Carr's decision neglected to provide "an analysis of the evidence related to the specific criteria of the Listings," the Government maintains that ALJ Carr's decision should be upheld because "portions of [his] decision and the evidence before him indicate that his conclusion was supported by substantial evidence." (Dkt. 24 at 17) (quoting Berry v. Schweiker , 675 F.2d 464, 468 (2d Cir. 1982).) The Government is correct.
Before reviewing whether Lopez met or equaled each of the Listings referenced, the Court sets forth the relevant burden of proof and standard of review. "As with all steps except the final one, [Lopez] bears the burden of showing that he meets [a] Listing." Perozzi v. Berryhill , 287 F. Supp. 3d 471, 482 (S.D.N.Y. 2018) ; Balaguer Perez v. Berryhill , No. 17 CV 3045, 2019 WL 1324949, *3 (E.D.N.Y. March 25, 2019) ("At step three in the analysis, Plaintiff bears the burden to establish that his impairments meet or medically equal a listed impairment."). "For a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is equivalent to a listed impairment, he must present medical findings equal in severity to all the criterial for the one most similar listed impairment." Sullivan v. Zebley , 493 U.S. 521, 531, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990) ; see also 20 C.F.R. § 404.1525(c)(3) ("We will find that your impairment(s) meets the requirements of a listing when it satisfies all of the criteria of that listing, including any relevant criteria in the introduction, and meets the duration requirement.").
The Second Circuit has held that an ALJ "should set forth a sufficient rationale in support of his decision to find or not find a listed impairment." Salmini v. Commissioner of Social Security , 371 Fed. Appx. 109, 112 (2d Cir. 2010) (quoting Berry , 675 F.2d at 469 ). But, "the absence of an express rationale does not prevent [the court] from upholding the ALJ's determination regarding appellant's claimed listed impairments [where] portions of the ALJ's decision and the evidence before him indicate that his conclusion was supported by substantial evidence." Berry , 675 F.2d at 468 ; see also Blau v. Berryhill , 395 F. Supp. 3d 266, 279 (S.D.N.Y. 2019) (collecting cases); Roche v. Berryhill , No. 17 Civ. 4524, 2018 WL 560207, *16-17 (S.D.N.Y. Jan. 25, 2018) ; Killings v. Commissioner of Social Security , No. 15 Civ. 8092, 2016 WL 4989943, *11 (S.D.N.Y. Sept. 16, 2016). Remand is called for where the Court "would be unable to fathom the ALJ's rationale in relation to evidence in the record, especially where credibility determinations and inference drawing is required of the ALJ." Berry , 675 F.2d at 469. With these standards in mind, the Court next addresses each of the three listings called out by Lopez.
1. Listing 1.02
"Listing 1.02 defines major dysfunction of a joint as a dysfunction characterized ‘by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable impacting of joint space narrowing, bony destruction, or ankylosis of the affected joint(s).’ " Schildwachter v. Berryhill , No. 17 Civ. 7177, 2019 WL 1116256, *3 (S.D.N.Y. Feb. 8, 2019) (quoting 20 C.F.R. 404 Subpart P, Appendix 1, § 1.02). Claimants alleging that ailments fall under Listing 1.02 must also show either (1) "[i]nvolvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b;" or (2) "[i]nvolvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively, as defined in 1.00B2c." 20 C.F.R. 404 Subpart P, Appendix 1, § 1.02(A), (B). As Lopez fails to identify which subsection of Listing 1.02 is purportedly met by record evidence, the Court will examine both.
A claimant alleging that his ailments fall under Listing 1.02 "must at a minimum demonstrate that he has a gross anatomical deformity." Schildwachter , 2019 WL 1116256 at *3. The regulations do not define that term. Id. Accordingly, "courts have relied upon the common medical definition, which defines ‘gross’ as ‘coarse or large’ and ‘visible to the naked eye without the use of magnification.’ " Id. (quoting Igo v. Colvin , 839 F.3d 724, 729 (8th Cir. 2016) ); Shelton v. Colvin , No. 12-CV-279, 2013 WL 3816607, *4 (W.D.N.C. July 22, 2013) (confirming that the Commissioner "properly applied the common medical definition of the word ‘gross,’ which refers to something ‘course or large; visible to the naked eye; as gross pathology; macroscopic; taking no account of minutiae’ " when assessing whether ailment fell under Listing 1.02). Based on the records identified by Lopez in his briefing before this Court, Lopez alleges that both his alleged right shoulder injuries and his knee injuries should have qualified under Listing 1.02. (Dkt. 21 at 7-8.) But Lopez points to no record evidence that shows that either of these injuries were "visible to the naked eye without use of magnification." In the plethora record evidence Lopez proffers in support of his argument, there are no findings that Lopez suffered from a visible deformity as a result of either his knee or shoulder injuries. (See, e.g. , R. at 695 (observing "no fracture or dislocation" in Lopez's shoulder the day after the alleged onset date of disability); R. at 715 (observing "a mild widening of the acromioclavicular joint" but "no disproportionate muscle atrophy" and "no fracture or osteonecrosis").) Indeed, almost all of the medical evidence cited are X-Rays, CT scans, and MRIs, which courts have considered "an implicit admission that the impairments are not gross." Schildwachter , 2019 WL 1116256 at *3 ; see also Figueroa v. Saul , No. 18 Civ. 4534, 2019 WL 4740619, *20 (S.D.N.Y. Sept. 27, 2019) (finding that medical evidence established that claimant "did not suffer from a ‘gross anatomic deformity’ " where there was "never an indication ... that [claimant] suffered from a deformity in any joint" and x-rays showed "no fracture, dislocation, joint effusion, or any other evidence of a ‘gross anatomic deformity’ ").
Even if Lopez's knee or shoulder impairments could be considered a "gross anatomical deformity" pursuant to Listing 1.02, Lopez proffers no evidence that these ailments left him unable to ambulate or perform fine or gross movements effectively. To show an "inability to ambulate effectively," the claimant must show "an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning ... to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities." 20 C.F.R. 404 Subpart P, Appendix 1, § 1.00(B)(2)(b)(1). "[E]xamples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail." 20 C.F.R. 404 Subpart P, Appendix 1 § 1.00(B)(2)(b)(2). Neither party contests that Lopez was prescribed to use a single cane following his knee surgery in July 2017. (R. at 552 (prescribing "weight bearing as tolerated with cane" as part of Lopez's post-operative home care instructions); R. at 57 (noting that, at the Hearing, Lopez was using a cane prescribed to him by his knee surgeon, Dr. Mendez).) But, at that same Hearing, Lopez testified that he was able to walk "about three blocks ... I've walked like, three, five blocks" without using his cane at all. (R. at 66.)
Despite the pain and difficulties caused by injuries like Lopez's, courts in this Circuit have repeatedly upheld ALJ findings that they did not meet or medically equal Listing 1.02. See, e.g. , Rivera v. Commissioner of Social Security , No. 15 Civ. 8439, 2017 WL 120974, *11 (S.D.N.Y. Jan. 12, 2017) (finding that knee injury did not meet or equal Listing 1.02 where claimant "required only one cane to stand and walk" and "was able to do household chores and take a bus" to medical appointments); DiPalma v. Colvin , 951 F. Supp. 2d 555, 571 (S.D.N.Y. 2013) (finding that knee injury did not meet or equal Listing 1.02 where claimant's doctors recommended exercise as part of treatment plans, where claimant could carry out "activities of daily living," and used a single cane to walk); Dibiasio v. Astrue , No. 08 CV 0743, 2010 WL 3368429, *10 (W.D.N.Y. June 10, 2010) (claimant who "made short trips to the store, performed light household chores ... and was able to travel short distances without a cane" could "ambulate effectively" as defined by 1.00(B)(2)(b)(2)). This Court must do the same.
Similarly, Lopez fails to point to any evidence that his shoulder injuries left him unable to "ambulate or perform fine or gross movements effectively" as required under Listing 1.02(2). "Inability to perform fine and gross movements effectively means an extreme loss of function of both upper extremities; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities." 20 C.F.R. 404 Subpart P, Appendix 1 § 1.00(B)(2)(c) (emphasis added). "[E]xamples of inability to perform fine and gross movements effectively include, but are not limited to, the inability to prepare a simple meal and feed oneself, the inability to take care of personal hygiene, the inability to sort and handle papers or files, and the inability to place files in a file cabinet at or above waist level." Id.
Again, the Court recognizes that Lopez's right shoulder injury is "severe," let alone painful and, at times, frustrating. But the record does not contain evidence that would demonstrate Lopez's inability to use both upper extremities. All of the medical records Lopez cites focus on treatment of his right shoulder; none mention his left. (See R. at 698-699 (CT of right shoulder); 700 (X-Ray of right shoulder); 87-88 (MRI of right shoulder); 91-92 (surgery on right shoulder in February 2015); 292-293 (ultrasound of right shoulder); 410 (surgery on right shoulder in January 2016); 722-23 (MRI of right shoulder).) And the few medical records in the record that reference left shoulder pain do not indicate any "inability to perform fine or gross movements" with his left shoulder. (See, e.g. , R. at 322 (recognizing "restricted motion" in Lopez's left shoulder by 5-10% on all planes due to "excessive use" and recommending physical therapy to treat); R. at 416 (recognizing "compensatory left shoulder pain secondary to overuse" but only calling for further examination if it "remain[ed] symptomatic").) Indeed, Lopez's own testimony indicates that he is able to perform certain daily household tasks, albeit with some pain. (R. at 69 (testifying that he is able to dress himself, but experiences pain in his shoulders when putting on his shirt); R. at 70 (testifying that he can button buttons, bathe, comb his hair, and shave (though experiences trouble lifting his right arm when doing so)); R. at 75-76 (testifying that he drives to go grocery shopping with his wife); R. at 76 (testifying that he "take[s] the bus to get [his] physical therapy" and walks two blocks to the pharmacy).)
Without evidence that his upper extremities are suffering from an extreme loss of function, Lopez's shoulder injuries cannot meet or medically equal Listing 1.02(B). See Clark v. Astrue , No. 09-CV-841A(F), 2011 WL 710161, *8 (W.D.N.Y. 2011) (affirming ALJ decision that claimant's rotator cuff injury did not meet the requirements for Listing 1.02(B) "because his impairment did not affect both of his upper limbs") (internal brackets omitted). Accordingly, ALJ Carr's conclusion that Lopez's knee and shoulder ailments did not meet the requirements for Listing 1.02 is supported by substantial evidence. 2. Listing 1.03
An ailment meets the requirements of Listing 1.03 if in involves "[r]econstructive surgery or surgical arthrodesis of a major weight-bearing joint, with inability to ambulate effectively, as defined in 1.00B2b, and return to effective ambulation did not occur, or is not expected to occur, within 12 months of onset." 20 C.F.R. Part 404, Subpart P, Appendix 1 § 1.03. Lopez's condition does not meet or medically equal Listing 1.03 because the record contains substantial evidence demonstrating that he can effectively walk with a cane. See Jones v. Berryhill , 415 F. Supp. 3d 401, 419 (S.D.N.Y. Nov. 12, 2019) (finding it "clear from the record" that claimant who used a cane did not meet or medically equal Listing 1.03 because "there is no evidence in the record that [claimant] used or needed a walker or some other device that limited the functioning of both upper extremities"); Balaguer Perez , 2019 WL 1324949 at *4 (concluding that claimant failed to meet the requirements of Listing 1.03 where there was "no evidence that [claimant] required an assistive device that limited the use of both arms"); Acevedo v. Berryhill , No. 16-CV-769, 2017 WL 5495984, *5 (W.D.N.Y. Nov. 16, 2017) (concluding that claimant failed to meet the requirements of Listing 1.03 because claimant's "use of a single cane – as opposed to a hand-held assistive device that requires the use of both hands, such as a walker – also shows that he can ambulate effectively."). Accordingly, ALJ Carr's conclusion that Lopez's knee ailments did not meet the requirements for Listing 1.03 is supported by substantial evidence.
3. Listing 1.08
Listing 1.08 encompasses "[s]oft tissue injury (e.g., burns) of an upper or lower extremity, trunk, or face and head, under continuing surgical management, as defined in 1.00M, directed toward the salvage or restoration of major function, and such major function was not restored or expected to be restored within 12 months of onset." 20 C.F.R. Part 404, Subpart P, Appendix 1 § 1.08. The phrase "under continuing surgical management" as used in Listing 1.08 "refers to surgical procedures and any other associated treatments related to the efforts directed toward the salvage or restoration of functional use of the affected part," which "may include such factors as post-surgical procedures, surgical complications, infections, or other medical complications, related illnesses, or related treatments that delay the individual's attainment of maximum benefit from therapy." 20 C.F.R. Part 404, Subpart P, Appendix 1 § 1.00(M). But, generally, "when there has been no surgical or medical intervention for 6 months after the last definitive surgical procedure, it can be concluded that maximum therapeutic benefit has been reached." Id.
The regulations "do not define ‘soft tissue injury’ other than identifying ‘burns’ as an example of such an injury." Murray v. Commissioner of Social Security , No. 13 CV 1336, 2014 WL 4199725, *12 (E.D.N.Y. Aug. 21, 2014). Without a clear definition, courts have debated whether muscle tears (like the ones suffered by Lopez in his right shoulder and knee) constitute "soft tissue injuries" for purposes of Listing 1.08. Compare McNulty v. Colvin , No. 14 CV 5242, 2015 WL 5096471, *4 (E.D.N.Y. Aug. 28, 2015) (concluding that ALJ's conclusion that claimant's right shoulder labral tear and partial rotator cuff tear did not constitute "soft tissue injuries" under Listing 1.08 was supported by substantial evidence where claimant failed to present authority for considering such injuries "soft tissue injuries"); with Murray , 2014 WL 4199725 at *13 ("assuming without deciding" that a rotator cuff tear constituted a soft tissue injury within the meaning of Listing 1.08, but noting that "[a]t least two district courts have suggested that muscle tears are ‘soft tissue injuries.’ ") (citing Cranmer v. Astrue , No. 07-CV-11386, 2008 WL 3084706, at *4 (D. Mass. Aug. 5, 2008) and Allard v. Chater , No. 96-CV-4646, 1997 WL 573400, at *15 (N.D. Ill. Sept. 11, 1997) ).
The regulations also do not define the term "major function." Murray , 2014 WL 4199725 at *12. Accordingly, to evaluate whether an individual's "major function" has been restored for purposes of Listing 1.08, courts have looked to whether a claimant suffers from "functional loss" as defined by 20 C.F.R. Part 404, Subpart P, Appendix 1 § 1.00(B)(1). Id. ; see also Corchado v. Astrue , No. 12-CV-52, 2013 WL 324022, at *5 (D.N.H. Jan. 29, 2013) ("For purposes of Listing 1.08, loss of a major function includes the inability to ambulate effectively on a sustained basis or the inability to perform fine and gross movements."); Howl v. Astrue , No. 2:08-0038, 2011 WL 91130, *14 (M.D. Tenn. Jan. 10, 2011) ("The necessary functional loss that is required by Listing 1.08, as defined by the Regulations, includes the ‘inability to perform fine and gross movements effectively ... [which] must have lasted, or be expected to last for at least 12 months.’ ").
Here, however, the Court need not determine whether Lopez's right shoulder or right knee injuries constitute "soft tissue injuries" implicating a "major function" under Listing 1.08, as Lopez has failed to demonstrate that any of those injuries were "under continuing surgical management." During the relevant period, Lopez has had two surgeries on his right shoulder (performed February 10, 2015 and January 26, 2016) and one surgery on his right knee (performed July 14, 2017, less than a month before the August 8, 2017 hearing before ALJ Carr). (R. at 410-412, and 552-554.) Reports from each of those surgeries make clear that Lopez suffered no complications during those procedures, and subsequent medical records do not reference that Lopez suffered any ensuing complications or need for additional surgery to treat his ailments. (Id. )
Indeed, at the last medical appointment regarding Lopez's right shoulder ailments in the record, Dr. Friedman reported that, while Lopez was still "75% temporarily disabled" in his right shoulder, Lopez's shoulder was "feeling much better" and his "[r]ange of motion significantly improved." (R. at 625.) Based on that examination, Dr. Friedman "request[ed] additional therapy working on stretching and strengthening with transition to a home program." (R. at 626.) And at the August 8, 2017 hearing before ALJ Carr, less than one month following his right knee surgery, Lopez testified that he was attending physical therapy for his knee (R. at 76-77) and could walk "like, three, five blocks" without using his cane at all. (R. at 66.) Neither the medical record nor Lopez's testimony indicate that he suffered any complications following his surgeries nor that he expected to require additional surgeries. In sum, ALJ Carr's conclusion that Lopez's shoulder and knee ailments did not meet the requirements for Listing 1.08 is supported by substantial evidence. See DeFreece v. Colvin , No. 12 Civ. 4641, 2013 WL 4028154, *7 (S.D.N.Y. Aug. 8, 2013) (finding that substantial evidence existed to support ALJ conclusion that medical impairments did not meet or medically equal Listing 1.08 where there was no evidence that additional surgical procedures would be necessary or expected).
Conclusion
For the reasons stated above, pursuant to sentence four of 42 U.S.C. § 405(g), I recommend granting the Commissioner's motion, denying Plaintiff's motion and dismissing this action. Pursuant to 28 U.S.C. §§ 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable John G. Koeltl, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
SO ORDERED.
Dated: March 2, 2020