Opinion
Civil Action 22 Civ. 9173 (JPC) (RFT)
01-30-2024
LUIS ANGEL ALVARADO MALDONADO, Plaintiff, v. MARTIN J. O'MALLEY, COMMISSIONER OF SOCIAL SECURITY, Defendant.
TO THE HONORABLE JOHN P. CRONAN, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
ROBYN F. TARNOFSKY, UNITED STATES MAGISTRATE JUDGE
Plaintiff Luis Angel Alvarado Maldonado (“Alvarado”) seeks judicial review of a final determination by Defendant Martin J. O'Malley, Commissioner (the “Commissioner”) of the Social Security Administration (the “SSA”), denying his application for social security disability benefits (“SSD”) under the Social Security Act (the “Act”). (See ECF 16, Mem. of Law in Support of Motion at 1.) Alvarado has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, seeking reversal of the Commissioner's decision and remand for further administrative proceedings. (See id.) The Commissioner has cross-moved for judgment on the pleadings. (See ECF 21.) Having carefully reviewed the administrative record and the submissions of the parties, and for the reasons set forth below, I respectfully recommend that Alvarado's motion to reverse the Commissioner's decision be GRANTED; that the Commissioner's cross-motion for judgment on the pleadings be DENIED; and that the case be REMANDED for further proceedings.
Martin J. O'Malley is now the Commissioner of the Social Security Administration. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, he is substituted for Kilolo Kijakazi as the defendant in this action.
BACKGROUND
I. Procedural History
Alvarado filed a claim for SSD on May 22, 2020. (R. at 61, 290-323.) He alleged disability beginning on May 28, 2019. (Id. at 61.) His claims were denied first on October 27, 2020, and then on reconsideration on March 24, 2021. (Id. at 97-111.)
Citations to “R.” are to the administrative record, and the page citations are to the numbers in the lower right corner of each page and not to the numbers at the top of the page that are part of the ECF numbering system.
Alvarado requested a hearing before an Administrative Law Judge (“ALJ”), which was held on September 13, 2021, by ALJ Vincent M. Cascio via telephone due to the pandemic. (Id. at 38-60, 123-24.) The ALJ issued a decision dated September 30, 2021, finding that Alvarado was not disabled and denying his SSD application. (Id. at 9-33.) Alvarado asked for review of the ALJ's decision on October 8, 2021, and the Appeals Council denied the request on September 12, 2022. (Id. at 1-8, 284-85.) He now appeals the agency's final decision.
II. Administrative Record
A. Alvarado's Background and Symptoms
Alvarado was born in 1975. (Id. at 61.) He completed school through the sixth grade in Ecuador and speaks very little English (he is a native Spanish speaker). (Id. at 40, 46-47.) He previously worked as a construction laborer. (Id. at 340.) In the disability report completed with his SSD application, he alleged disability beginning on May 28, 2019, due to lumbar spine pain syndrome; a fractured disc in the lower back; and a punctured left ring finger. (Id. at 339.) He began experiencing the back pain after a fall on a construction site in 2014, and he is awaiting approval for back surgery. (Id. at 20, 48.) He continued working in construction after the accident until May of 2019. (Id. at 403, 589.) Alvarado stopped working because of worsening symptoms. (Id. at 404, 589.)
B. Medical Evidence
The administrative record is lengthy and includes medical evidence dating back to 2015. In light of Plaintiff's alleged onset date of May 28, 2019, I focus on the evidence from 2019 onward. In broad strokes, after his 2014 accident, Alvarado was diagnosed with multiple musculoskeletal injuries, including lumbar disc herniation with radiculopathy. (Id. at 444.) Between 2014 and the beginning of 2019, Alvarado saw at least seven different doctors, including specialists in neurology, orthopedics, and spine injuries. (Id at 411, 435-37, 448, 512, 558, 560, 614, 622). He was treated with a lumbar spinal injection and various prescription medications (which he took regularly), but he got no benefit from those courses of treatment. (Id. at 750.) He received physical therapy three to four times per week for a period of five or six months, but his doctors stopped the treatment around May of 2016 because it was not reducing his back pain. (Id. at 444.) Surgery (a lumbar fusion) was first recommended in May of 2017. (Id. at 732.)
“Although the ALJ may focus his inquiry on the period of disability at issue, the[ ] records that pre-date the alleged onset date may still be relevant.” Goldman v. Colvin, No. 13-CV-3291 (KMK) (JCM), 2016 WL 11484447, at *11 (S.D.N.Y. Feb. 23, 2016), report and recommendation adopted as modified, 2016 WL 3522281 (S.D.N.Y. June 22, 2016).
Lumbar disc herniation is a condition in which part of the soft central portion of an intervertebral disc in the lumbar region of the spine is forced through a weakened part of the disc, resulting in back pain and nerve root irritation. See Herniated Lumbar Disk, U.S. NATIONAL LIBRARY OF MEDICINE: MEDLINE PLUS, https://medlineplus.gov/ency/imagepages/9540.htm (last visited on Jan. 24, 2024). Lumbar radiculopathy is the “irritation of or injury to a spinal nerve root” in the lumbar region. Radiculopathy, MERRIAM-WEBSTER MEDICAL DICTIONARY, https://www.merriam-webster.com/dictionary/radiculopathy (last visited on Jan. 17, 2024).
Transforaminal lumbar interbody fusion (“TLIF”) was recommended. TLIF is a spinal fusion technique for the lower back, in which two spinal bones (vertebrae) are joined by removing a portion of the spinal disc between them and placing a spacer (cage), supplemented by screws and rods, in its place. See TLIF Surgery: Transforaminal Lumbar Interbody Fusion, HOSPITAL FOR SPECIAL SURGERY, https://www.hss.edu/conditionstlif-transforaminal-lumbar-interbody-fusion-spine-surgery.asp (last visited on Jan. 24, 2024).
1. Treatment History
a. NY Spine Institute/Dr. Peter G. Passias, M.D.
Alvarado received treatment at the NY Spine Institute, primarily from Dr. Passias, a spine specialist, from December of 2017 through July of 2021. (Id. at 783-826, 832-44, 845-86.) In February of 2018, Dr. Passias diagnosed Alvarado with very severe L4-L5 disc herniation and bilateral paraspinal muscular spasms; he recommended surgery (a lumbar fusion and decompression surgery). (Id. at 815-16, 587)
Spinal decompression surgery is performed to relieve symptoms related to compression of the spinal cord or its roots, which may cause back or neck pain and radiating limb pain. See Spinal Decompression Surgery, HOSPITAL FOR SPECIAL SURGERY, https://www.hss.edu/condition-listspinal-decompression-surgery.asp (last visited on Jan. 24, 2024).
Treatment notes from May 17, 2019, immediately before the onset date of his alleged disability, indicate that “working is severely worsening symptoms and he is unable to work at this time.” (Id. at 801.) A CT scan of the lumbar spine from a few weeks prior to that visit showed disc bulges at ¶ 4-L5 (indicating herniation) as well as anterolisthesis. (Id. at 777-78.)
Anterolisthesis is a misalignment of the vertebrae due to the upper vertebrae slipping forward, which causes pain in the lower back and legs. See Kanna Ingleson, Anterolisthesis: What to know, MEDICAL NEWS TODAY (Mar. 22, 2023), https://www.medicalnewstoday.com/articles/319404 (last visited on Jan. 17, 2024).
A January 22, 2020 functional evaluation by Dr. Passias indicated that Alvarado could lift and/or carry only up to five pounds and only occasionally. (Id. at 587.) He was restricted to only occasionally engaging in fine manipulation or simple grasping. (Id.). He was also restricted from climbing, kneeling, stooping, squatting, or bending. (Id.) Alvarado's treatment notes from February 17, 2020 document a pending approval for lumbar fusion surgery. (Id. at 783.) At that time, Alvarado could not bend or twist without severe pain, and he experienced worsening pain in the back and left leg. (Id.) His ability to perform activities of daily living had also diminished. (Id.) An MRI of the lumbar spine taken a month earlier showed a shallow foraminal disc herniation; shallow central disc herniations and disc desiccations; retrolisthesis; mild multilevel bilateral neural foraminal narrowing; decreased lumbar lordosis; and bilateral L5 spondylolysis. (Id. at 22.)
The neural foramina are “the openings where spinal nerves leave the spinal column,” and the herniation of the openings can cause tingling, a dull ache, or a burning sensation. Narrowing of those openings can cause numbness or weakness in the body. Spinal Stenosis, U.S. NATIONAL LIBRARY OF MEDICINE: MEDLINE PLUS, https://medlineplus.gov/ency/article/000441.htm (last visited on Jan. 17, 2024); id. at https://medlineplus.gov/ency/article/000686.htm (last visited on Jan. 23, 2024).
Disc desiccation is the dehydration of the tissues of the discs between the vertebrae and can lead to symptoms including neck pain or lower back pain depending on the location of the dehydration. See Nicole Galan, How can disc desiccation be treated?, MEDICAL NEWS TODAY (June 23, 2023), https://www.medicalnewstoday.com/articles/322121#symptoms (last visited on Jan. 17, 2024).
Retrolisthesis occurs when a vertebra slips backward and causes back pain. See Jenna Fletcher, Retrolisthesis: What you need to know, MEDICAL NEWS TODAY (Sept. 30, 2017), https://www.medicalnewstoday.com/articles/319571 (last visited on Jan. 17, 2024).
Decreased lumbar lordosis is a symptom which occurs when the lower spine loses part of its inner curvature, which can lead to chronic pain. See Flatback Syndrome, COLUMBIA NEUROSURGERY, https://www.neurosurgery.columbia.edu/patient-care/conditions/flatback-syndrome (last visited on Jan. 17, 2024).
Spondylolysis is the “disintegration or dissolution of a vertebra”; bilateral L5 spondylolysis occurs on both sides of the fifth lumbar of the spine. See Spondylolysis, MERRIAM-WEBSTER MEDICAL DICTIONARY, https://www.merriam-webster.com/medical/spondylolysis (last visited on Jan. 17, 2024); Spondylolysis & spondylolisthesis, MAYFIELD CLINIC, https://mayfieldclinic.com/pe-spond.htm#:~:text=Spondylolysis%20is%20a%20breakdown%20or,or%20fifth%20lumbar%20ve rtebra%20(Fig. (last visited on Jan. 17 2024).
On June 9, 2021, an examination showed that Alvarado's lumbar spine had a decreased range of motion, and he experienced muscle spasms and tenderness in the area. (Id. at 877.) He exhibited left hip flexor weakness, reduced strength in his quadriceps, limitations of range of motion of the right knee on flexion and extension, and limitations in heel and toe walking. (Id. at 876.) Lumbar spine range of motion was described as painful. (Id. at 877.) At that time, Alvarado reported that he could not walk more than one block without difficulty and could neither sit nor stand for more than five to ten minutes. (Id. at 875.) A June 9, 2021 MRI of the lumbar spine revealed disc degeneration, chronic bilateral L5 spondylolysis; mild lumbar spondylotic changes; and mild bilateral foraminal stenosis. (Id. at 880-81.)
On July 9, 2021, Dr. Passias completed a Summary Impairment Form for Alvarado. (Id. at 845-46.) Dr. Passias reported having treated Alvarado for the past three years about once every three months for lumbar radiculopathy, spondylolisthesis, lumbago, low extremity weakness, and other spinal conditions. (Id. at 846.) In support of these diagnoses, Dr. Passias cited, among other objective findings, reports of 2021 MRIs that showed spondylolisthesis at ¶ 3-L4, L4-L5, and L5-S1, and other abnormal results. (Id.) Dr. Passias opined that over the course of an eighthour workday, Alvarado could sit for less than one hour and could stand or walk for up to one hour. (Id. at 845.) Dr. Passias also opined that Alvarado could lift or carry up to five pounds only occasionally and that due to treatment or his impairments, he would be absent from work more than three days a month. (Id.)
Lumbago is lower back pain caused by muscle strain. See Lumbago, MERRIAM-WEBSTER MEDICAL DICTIONARY, https://www.merriam-webster.com/dictionary/lumbago#medicalDictionary (last visited on Jan. 17, 2024).
2. Medical Opinion Evidence
a. Consultative Examiner Michael Healy, M.D.
On August 11, 2020, Dr. Michael Healy conducted an internal medicine consultative examination at the request of SSA. (Id. at 827-31). Alvarado complained primarily of lower back pain and also of pain in both knees. (Id. at 827.) His symptoms were aggravated by prolonged sitting, standing, and walking. (Id.) Dr. Healy reported that Alvarado appeared to be feeling some discomfort and walked with a slightly widened gait and shortened stride. (Id. at 828). Dr. Healy noted that Alvarado experienced discomfort when placing weight on either leg. (Id.) Alvarado could not walk on his heels or toes, could not squat fully, and stood with a widened stance. (Id.) He had decreased flexion and extension, lateral flexion, and rotary motion on both sides of his spine. (Id. at 829.) He had decreased strength in the right leg as well. (Id.)
Based upon his examination, Dr. Healy diagnosed Alvarado with lower back pain, probably due to spinal intervertebral disc disruption with radiation to the right leg and bilateral knee pain, probably due to early degenerative joint disease. (Id. at 829-30.) He concluded that Alvarado had moderate limitations sitting, standing, bending, lifting, walking, and climbing stairs, but did not provide specifics. (Id. at 830.)
b. David Wallace, M.D. - Agency Record Review Consultant
On October 22, 2020, Dr. David Wallace, a reviewing state agency medical consultant, completed a review of then-available records. (Id. at 62-70.) He concluded that Alvarado could occasionally lift and/or carry 20 pounds; frequently lift and/or carry ten pounds; stand/and or walk for two hours at a time; and sit with normal breaks for six hours. (Id. at 67.) Additionally, Dr. Wallace opined that Alvarado's ability to push or pull was “unlimited” except for the postural limitations of climbing ramps or stairs (occasionally); climbing ladders/ropes/scaffolds (never); balancing (frequently); stooping (occasionally); kneeling (never); crouching (occasionally); crawling (never). (Id. at 67-68.) He stated that Alvarado had the ability to perform sedentary work. (Id. at 69.)
c. A. Vinluan, M.D. - Agency Record Review Consultant
On March 8, 2021, Dr. A. Vinluan, another reviewing state agency medical consultant, completed a review of then-available records. (Id. at 71-86.) Like Dr. Wallace, he concluded that Alvarado could occasionally lift and/or carry 20 pounds and frequently lift and/or carry ten pounds. (Id. at 81.) However, he concluded that Alvarado could stand/and or walk for six hours at a time; and sit with normal breaks for six hours. (Id.) Dr. Vinluan concluded that Alvarado's ability to push or pull was “unlimited” except for the postural limitations of climbing ramps or stairs (occasionally); climbing ladders/ropes/scaffolds (never); balancing (frequently); stooping (occasionally); kneeling (never); crouching (occasionally); crawling (never). (Id. at 81-82.) He opined that Alvarado could perform light work. (Id. at 85.)
C. The ALJ Hearing
On September 13, 2021, Alvarado appeared telephonically with counsel before the ALJ. (Id. at 40.) In a pre-hearing letter dated September 7, 2021, his counsel cited diagnostic and treatment records to argue that Alvarado has degenerative spinal impairments sufficient for the ALJ to find Alvarado disabled because his symptoms were equivalent to listed disabling conditions. (Id. at 403-05.) Counsel noted that Alvarado's symptoms had gotten worse over time and that his ability to perform activities of daily life without assistance had deteriorated. (Id. at 404.) Counsel highlighted medical opinions concluding that the attempted treatments (which had included physical therapy, a lumbar spinal injection, and various pain medications) had not been effective (id. at 403) and that the recommended treatment (surgery) had not been approved. (Id. at 404).
At the hearing, Alvarado testified that he lives with a partner who assists him with dressing to the extent bending is required and with showering. (Id. at 50.) He estimated that he can walk about one block or a block and a half at most before needing to take a break, that he can stand for five to ten minutes, and that he can sit for about ten to fifteen minutes before he needs to change positions. (Id. at 48.) He said he believes he can lift the weight of a gallon of milk, which is around eight and a half pounds. (Id. at 48-49). He reported struggling with fine and gross manipulation: he explained that he can sometimes pick up coins or pencils but sometimes drops these items. (Id. at 49.) He said he also experiences dizzy spells about three or four times each week. (Id. at 51.)
Alvarado testified that he takes over-the-counter medication to address his pain and that he lies down four to six times a day to get relief. (Id. at 49, 51). He also testified that he had been under the treatment of a physical therapist shortly after his accident but that his doctors had discontinued that treatment because it did not help his pain. (Id. at 52.) In 2016, Alvarado was prescribed Naproxen, Gabapentin, Meloxicam and Mobic, and Zanaflex and Tinzadine (id. at 536, 750), but the prescribed medications did not provide a significant benefit. (Id. at 750.) Similarly, a lumbar spinal injection in April of 2016 did not alleviate Alvarado's pain. (Id at 752.)
Naproxen is a nonsteroidal anti-inflammatory drug (“NSAID”). Prescription Naproxen is typically used to relieve pain, tenderness, swelling, and stiffness of the joints. See Naproxen, U.S. NATIONAL LIBRARY OF MEDICINE: MEDLINE PLUS, https://medlineplus.gov/druginfo/meds/a681029.html (last visited on Jan. 24, 2024).
Gabapentin is a drug that may be prescribed treat neuropathy (numbness or tingling due to nerve damage). See Gabapentin, U.S. NATIONAL LIBRARY OF MEDICINE: MEDLINE PLUS, https://medlineplus.gov/druginfo/meds/a694007.html (last visited on Jan. 24, 2024).
Meloxicam is a generic prescription NSAiD. Mobic is a brand formulation of meloxicam. See Meloxicam, U.S. NATIONAL LIBRARY OF MEDICINE: MEDLINE PLUS, https://medlineplus.gov/druginfo/meds/a601242.html (last visited on Jan. 24, 2024).
Tinzadine is in a class of medications called skeletal muscle relaxants. it is prescribed for spinal injuries. Zanaflex is a brand formulation of tinzadine. See Tinzadine, U.S. NATIONAL LIBRARY OF MEDICINE: MEDLINE PLUS, https://medlineplus.gov/druginfo/meds/a601121.html (last visited on Jan. 24, 2024).
A vocational expert (“VE”) appeared at the administrative hearing and offered testimony regarding Alvarado's ability to perform work available in the national economy. (Id. at 52-60.) The VE testified that Alvarado had worked as a construction worker I, Dictionary of Occupational Titles (“DOT”) No. 869.664-014, which is semi-skilled heavy work. (Id. at 54.) The VE testified that a hypothetical person who had the capacity to perform a full range of light work and who could occasionally climb ramps and stairs; never climb ropes, ladders, or scaffolds; occasionally stoop, crouch, and reach overhead; never kneel or crawl; and never have exposure to unprotected heights or hazardous machinery could not be a construction worker. (Id. at 54).
The VE testified that the individual could, however, perform work as an usher or a lobby attendant, DOT No. 344.677-014, stock checker, DOT No. 299.667-014, and school bus monitor, DOT No. 372.667-042, which involve unskilled light work. (Id. at 55.) When the ALJ further limited the hypothetical claimant to sedentary work with the same limitations, the VE testified that the hypothetical claimant could perform work including binding semi-conductors, DOT No. 726.685-066, monitoring surveillance systems, DOT No. 379.367-010, and being a cashier II, DOT No. 211.462-010, which is defined as a cashier in a small environment such as a gift shop, a smoke shop, or a similar business; each of these jobs is a sedentary unskilled position. (Id. at 56.)
In response to questioning by Alvarado's counsel, the VE testified that if the hypothetical individual were off task 20% of the workday (due to pain) in addition to regular scheduled breaks, the individual would become unemployable. (Id. at 56-57). The VE also said that an individual could not be absent more than two days per month and could not be off task more than 15% of the time and remain employed in one of those positions. (Id.) The VE opined that an individual with the same age, work history, and impairments as Alvarado, who could not walk or stand for more than one hour, could not sit for more than one hour, could lift only five pounds and only occasionally, and who would be absent three times a month could not perform any work available in the national economy. (Id. at 58.)
DISCUSSION
I. Legal Standards
A. Legal Standard for Deciding a Motion for Judgment on the Pleadings
“Under Rule 12(c), a party is entitled to judgment on the pleadings if [ ]he establishes that no material facts are in dispute and that [ ]he is entitled to judgment as a matter of law.” Rosario v. Comm'r of Soc. Sec., No. 20-CV-7749 (SLC), 2022 WL 819810, at *5 (S.D.N.Y. Mar. 18, 2022) (citing Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999) and Morcelo v. Barnhart, No. 01-CV-0743 (RCC) (FM), 2003 WL 470541, at *4 (S.D.N.Y. Jan. 21, 2003)).
B. Legal Principles Governing Judicial Review of the Commissioner's Decision
A United States District Court may affirm, modify, or reverse (with or without remand) a final decision of the Commissioner. See 42 U.S.C. § 405(g); Skrodzki v. Comm'r of Soc. Sec., 693 Fed.Appx. 29, 29 (2d Cir. 2017) (summary order). The inquiry is “whether the correct legal standards were applied and whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004).
“‘Failure to apply the correct legal standard constitutes reversible error ....'” Douglass v. Astrue, 496 Fed.Appx. 154, 156 (2d Cir. 2012) (quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (remanding due to the ALJ's noncompliance with regulations). In “‘certain circumstances, failure to adhere to the applicable regulations'” counts as a failure to apply the correct legal standard and therefore is reversible error. Douglass, 496 Fed.Appx. at 156 (quoting Kohler, 546 F.3d at 265). Courts review de novo whether the ALJ's legal conclusions were based on the correct legal principles. See Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (reversing where the ALJ's decision “was not in conformity with the regulations promulgated under the Social Security Act”).
If a court concludes that the ALJ used the correct legal standards, the court must then “‘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. Comm'r of Soc. Sec., 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). The substantial evidence standard is quite deferential: “once an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448 (internal quotation marks and emphasis omitted). If the evidence is susceptible to more than one rational interpretation, the court must uphold the ALJ's conclusion. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). A court “‘may not substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'” Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (citation omitted).
However, a court may not defer to a determination by the ALJ if it is the product of legal error, including a failure 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. Comm'r of Soc. Sec., 557 F.3d 79, 82-84 (2d Cir. 2009) (awarding claimant legal fees when ALJ had ignored or mischaracterized evidence); Kohler, 546 F.3d at 268-69 (holding that remand is appropriate when the ALJ had overlooked and mischaracterized evidence); Ruiz v. Barnhart, No. 01-CV-1120 (DC), 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (remanding when the ALJ had ignored evidence). Therefore, in assessing whether there is substantial evidence to support the ALJ's decision, “the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Mongeur, 722 F.2d at 1038) (internal quotation marks omitted).
When “the ALJ has applied an improper legal standard,” or when there is not substantial evidence to support the ALJ's determination, the reviewing court may remand to the ALJ to develop the record. See Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (quotation marks, alteration, and citation omitted).
B. Legal Principles Guiding the Commissioner's Determination of Disability
Under the Act, a person who has a disability and is insured for disability benefits is entitled to disability benefits. See 42 U.S.C. §§ 423(a)(1)(A), (C); 20 C.F.R. §§ 404.101, 404.120, 404.315(a). 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).
Alvarado was insured through December 31, 2023, which is after the date of the ALJ's decision (R. at 336), and so there is no issue with regard to his insured status.
In determining whether impairments meet the statutory definition of disability, the ALJ “must make a thorough inquiry into the claimant's condition and must be mindful that ‘the Social Security Act is a remedial statute, to be broadly construed and liberally applied.'” Mongeur, 722 F.2d at 1037 (quoting Gold v. Sec'y of Health, Educ. & Welfare, 463 F.2d 38, 41 (2d Cir. 1972)). Accordingly, the ALJ's decision must consider factors such as: “(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience.” Mongeur, 722 F.2d at 1037 (citations omitted).
1. Five-Step Inquiry
The Commissioner must conduct a five-step inquiry to determine whether an individual is disabled and therefore entitled to disability benefits. See 20 C.F.R. § 404.1520.3. First, the Commissioner must determine whether the claimant is currently engaged in any substantial gainful activity. See 20 C.F.R. §§ 404.1520(a)(4)(i), (b). If so, the claimant is ineligible for benefits and the inquiry ends.
If the claimant is not engaged in any such activity, the Commissioner moves on to the second step and must determine whether the claimant has a severe impairment, which is an impairment or combination of impairments that significantly limits his ability to perform basic work activities. See 20 C.F.R. §§ 404.1520(a)(4)(ii), (c). If the claimant does not have an impairment or combination of impairments that are severe, the claimant is not entitled to benefits and the inquiry ends.
If the claimant has a severe impairment or combination of impairments, the Commissioner continues to step three and must determine whether the impairment or combination of impairments is, or medically equals, one of the impairments included in the “listings” of qualifying disabilities contained at 20 C.F.R. Part 404, Subpart P, Appendix 1. If the claimant's impairment or impairments meet or medically equal one of those listings, the Commissioner presumes the claimant is disabled, and the claimant will be eligible for benefits. See 20 C.F.R. §§ 404.1520(a)(4)(iii), (d).
If the claimant does not meet the criteria for being presumed disabled, the Commissioner continues to the fourth step and must assess the claimant's residual functional capacity (“RFC”), which is his ability to perform work activities on a sustained basis despite his impairments. The Commissioner then determines whether the claimant possesses the RFC to perform the claimant's past work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), (f), (h). If so, the claimant is not eligible for benefits and the inquiry ends.
If the claimant is not capable of performing his prior work, the Commissioner must continue to step five and determine whether the claimant can perform other available work. See 20 C.F.R. §§ 404.1520(a)(4)(v), (g), (h). If the claimant, as limited by his RFC, can perform other available work, the claimant is not entitled to benefits. See 20 C.F.R. §§ 404.1520(a)(4)(iv), (v).
The claimant bears the burden of proof for the first four steps. See Selian, 708 F.3d at 418. If the claimant shows that he is unable to perform his past work, the Commissioner bears the burden of showing at the fifth step 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) (internal quotation marks and citation omitted).
2. Evaluation of Medical Opinion Evidence
ALJs must evaluate the medical opinion evidence. See Rodriguez v. Colvin, No. 12-CV-3931 (RJS) (RLE), 2014 WL 5038410, at *17 (S.D.N.Y. Sept. 29, 2014). Until 2017, regulations required application of the “treating physician rule,” which provided that the opinion of a claimant's treating physician presumptively was entitled to “controlling weight.” 20 C.F.R. § 404.1527(c)(2); see also Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). For claims filed prior to March 27, 2017, if the ALJ decided not to give controlling weight to a treating physician's opinion, the ALJ had to determine how much weight, if any, to give that opinion. See Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019). In doing so, the ALJ had to “explicitly consider” the following, non-exclusive “Burgess factors”: “(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Selian, 708 F.3d at 418. Failure to apply the Burgess factors constituted procedural error, but a reviewing court would not reverse the Commissioner's decision if the Commissioner gave “good reasons” for the weight assigned to the treating doctor's opinion. Estrella, 925 F.3d at 96. When determining the weight to give the opinions of non-treating physicians, an ALJ applying the earlier regulations also had to consider the Burgess factors. See 20 C.F.R. § 404.1527(c); see also Acosta Cuevas v. Comm'r of Soc. Sec., No. 20-CV-0502 (AJN) (KHP), 2021 WL 363682, at *11 (S.D.N.Y. Jan. 29, 2021) (discussing application of Burgess and collecting cases), report and recommendation adopted sub nom. Cuevas v. Comm'r of Soc. Sec., No. 20-CV-0502 (KMW) (KHP), 2022 WL 717612 (S.D.N.Y. Mar. 10, 2022).
The regulations set forth in 20 C.F.R. § 404.1520c apply to claims filed on or after March 27, 2017. Under these regulations, a treating doctor's opinion is no longer entitled to a presumption of controlling weight. Instead, all medical opinions are evaluated for their persuasiveness. See 20 C.F.R. § 404.1520c(a) (“We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) . . . including those from your medical sources”). “Although the new regulations eliminate the perceived hierarchy of medical sources . . . the ALJ must still ‘articulate how [he or she] considered the medical opinions' and ‘how persuasive [he or she] find[s] all of the medical opinions.'” Amber H. v. Saul, No. 20-CV-490 (ATB), 2021 WL 2076219, at *4 (N.D.N.Y. May 24, 2021)) (alterations in original) (quoting 20 C.F.R. §§ 404.1520c(a), (b)).
These regulations place the most significance for the persuasiveness assessment on the extent to which a physician's opinion is supported by well-accepted medical evidence and consistent with the rest of the record. See 20 C.F.R. § 404.1520c(a) (“The most important factors we consider when we evaluate the persuasiveness of medical opinions . . . are supportability . . . and consistency.”). The ALJ is also required to consider the three remaining factors (relationship with the claimant, specialization, and other factors tending to support or contradict a medical opinion). See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).
Beyond merely considering the supportability and consistency of medical source opinions, the ALJ must explain in his decision how he analyzed those factors. See 20 C.F.R. § 404.1520c(b)(2); Vellone v. Saul, No. 20-CV-261 (RA) (KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021) (“in cases where the new regulations apply, an ALJ must explain his/her approach with respect to the first two factors when considering a medical opinion”) (emphasis in original), report and recommendation adopted, 2021 WL 2801138 (S.D.N.Y. July 6, 2021). In most instances, the ALJ may, but is not required to, discuss the other Burgess factors (relationship with the claimant, specialization, and other relevant factors). See 20 C.F.R. § 404.1520c(b)(2).
The ALJ must discuss those additional factors only if there are “two or more medical opinions or prior administrative medical findings about the same issue [that] are both equally well-supported . . . and consistent with the record . . . but are not exactly the same.” Under those circumstances, the ALJ must “articulate how [she] considered the other most persuasive factors ....” 20 C.F.R. § 404.1520c(b)(3).
Under the current regulations, an ALJ's failure to properly consider and apply the consistency and supportability factors may be a basis for remand. See, e.g., Rivera v. Comm'r of Soc. Sec., No. 19-CV-4630 (LJL) (BCM), 2020 WL 8167136, at *22 (S.D.N.Y. Dec. 30, 2020) (remanding so that the ALJ could “reevaluate the persuasiveness assigned to the opinion evidence of record and explicitly discuss both the supportability and the consistency of the consulting examiner's opinions”), report and recommendation adopted, 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021); Andrew G. v. Comm'r of Soc. Sec., No. 19-CV-0942 (ML), 2020 WL 5848776, at *5-9 (N.D.N.Y. Oct. 1, 2020) (remanding due to the ALJ's failure to adequately explain the supportability or consistency factors that led to the decision); see also 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). The Court need not remand the case if the ALJ only committed harmless error, such that the “application of the correct legal principles to the record could lead only to the same conclusion.” Zabala, 595 F.3d at 409 (2d Cir. 2010) (alteration, quotation marks and citation omitted).
As Alvarado's application post-dates March 27, 2017, the Court must apply the revised regulations on evaluating medical opinions.
3. Evaluating Plaintiff's Credibility
SSA regulations provide that statements of subjective pain and other symptoms, standing alone, cannot establish disability. See Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citing 20 C.F.R. § 404.1529(a)). The ALJ must follow a two-step framework for evaluating allegations of pain and other symptoms. See Genier, 595 F.3d at 49. The ALJ first considers whether the claimant suffers from a “medically determinable impairment that could reasonably be expected to produce” the alleged symptoms. Id. (citing 20 C.F.R. § 404.1529(b)). “If the claimant does suffer from such an impairment, at the second step, the ALJ must consider ‘the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence' of record.” Genier, 595 F.3d at 49 (citing 20 C.F.R. § 404.1529(a)). Among the additional kinds of evidence that an ALJ must consider in addition to objective medical evidence are the “individual's daily activities”; the frequency and intensity of the pain; the type and effectiveness of any medication the individual takes to alleviate pain; other treatments the individual has received for relief of pain; and any other measures the individual uses to relieve pain, such as lying down. See Pena v. Astrue, No. 07-CV-11099 (GWG), 2008 WL 5111317, at *11 (S.D.N.Y. Dec. 3, 2008) (citation omitted).
“If the Secretary's findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount a claimant's subjective complaints of pain.” McLaughlin v. Sec'y of Health, Educ & Welfare, 612 F.2d 701, 704 (2d Cir.1982) However, “[t]he Second Circuit has held that where an ALJ rejects witness testimony as not credible, the basis for the finding “must . . . be set forth with sufficient specificity to permit intelligible plenary review of the record.” Pena, 2008 WL 5111317, at *10 (quoting Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir.1988)).
4. The ALJ's Duty To Develop the Administrative Record
Disability-benefits proceedings are non-adversarial, and so the ALJ has an affirmative obligation to develop a complete administrative record, even if the claimant is represented by counsel. See Lamay v. Astrue, 562 F.3d 503, 508-09 (2d Cir. 2009). Whether the ALJ discharged this duty “is a threshold issue.” Romero v. Comm'r of Soc. Sec., No. 18-CV-10248 (KHP), 2020 WL 3412936, at *12 (S.D.N.Y. June 22, 2020).
“[T]he record as a whole must be complete and detailed enough to allow the ALJ to determine the claimant's residual functional capacity.” Rosario, 2022 WL 819810, at *6 (S.D.N.Y. Mar. 18, 2022) (quoting Casino-Ortiz v. Astrue, No. 06-CV-0155 (DAB) (JCF), 2007 WL 2745704, at *7 (S.D.N.Y. Sept. 21, 2007). When there are inconsistencies, gaps, or ambiguities in the record, the regulations give the ALJ options to collect evidence to resolve these issues, including re-contacting the treating physician, requesting additional records, arranging for a consultative examination, or seeking information from others. See 20 C.F.R. § 416.920b. “If a gap exists in the administrative record[,] then the plaintiff has not been afforded a full and fair hearing and the ALJ has failed in his or her duty to develop the administrative record.” Dufresne v. Astrue, No. 12-CV-0049 (MAD) (TWD), 2013 WL 1296376, at *5 (N.D.N.Y. Mar. 8, 2013) (citing Hankerson v. Harris, 636 F.2d 893, 897 (2d Cir. 1980)), report and recommendation adopted, 2013 WL 1289759 (N.D.N.Y. Mar. 27, 2013). Under those circumstances, the Court will remand the case for further development of the evidence or for more specific findings. See Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999).
II. The ALJ's Decision
On September 30, 2021, in a 14-page decision, the ALJ found that Alvarado was not disabled based on the application filed on May 22, 2020. (R. at 28.) At step one of the five-step inquiry, the ALJ found that Alvarado had not engaged in substantial gainful activity from the alleged onset date of May 28, 2019 through the date of the opinion. (Id. at 17.) At step two, the ALJ found that Alvarado had the following severe impairments: degenerative disc disease in the lumbar spine (with herniations and spondylolysis) and degenerative changes in the right knee. (Id.) At step three, after considering Alvarado's impairments, the ALJ concluded that Alvarado did not have “an impairment or combination of impairments” that equaled the severity of any listed impairment. (Id. at 18)
Prior to evaluating step four, the ALJ determined Alvarado's RFC. In making this assessment, 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 . . . [including] medical opinion(s) and prior administrative medical finding(s) . . . .” (Id. at 19.) The ALJ found that although Alvarado's “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” the alleged “intensity, persistence and limiting effects of these symptoms” were “not entirely consistent” with the evidence in the record. (Id. at 20.)
To reach that finding, the ALJ summarized and assessed clinical treatment notes from September of 2018 through June of 2021. (Id. at 20-24.) Based on the treatment notes, the ALJ concluded that the “claimant's statements about the intensity, persistence and limiting effects of his symptoms are inconsistent,” because “the objective medical evidence since the alleged onset date shows mostly stable conditions and conservative management of the symptoms that allows the capacity to perform a limited range of sedentary work ....” (Id. at 20.) The ALJ went on to state that “the record simply does not establish physiological and psychological abnormalities, which would limit the claimant's daily activities to the disabling degree alleged . . . .” (Id.) The reference to psychological abnormalities is curious, since Alvarado did not claim to have any disabling psychological conditions.
On his application for disability benefits, Alvarado identifies only physiological conditions and denies having been treated for mental conditions. (See R. at 332, 342.)
The ALJ then considered Alvarado's subjective statements, noting that Alvarado said he was able to drive a car for “10-15 minutes at a time.” (Id. at 24.) The ALJ concluded that Alvarado's capacity to drive demonstrated his “ability to use his upper extremities and hands for fine controls as well as to sit for a continuous period. Furthermore, the claimant's ability to drive a car demonstrates the ability to use foot controls.” (Id.)
The ALJ next assessed the medical opinion evidence. (Id. at 25-26.) He first considered the opinion of non-examining state agency medical consultant Dr Wallace, who reviewed the record as of October 22, 2020. (Id. at 25.) The ALJ said Dr. Wallace had opined that Alvarado could perform “a limited range of light work” (id.), when in fact Dr. Wallace had opined that Alvarado could perform a limited range of sedentary work (id. at 69). The ALJ found Dr. Wallace's opinion to be “persuasive,” even though the ALJ ultimately concluded that Alvarado could perform a limited range of sedentary work, which is less strenuous than the light work the ALJ believed Dr. Wallace had endorsed. (Id. at 25.) The ALJ recited that he found the opinion persuasive because it was “somewhat consistent with the record as a whole and is supported.” (Id.)
The ALJ addressed the support for Dr. Wallace's opinion by noting that while:
[t]he objective record indicates that the claimant has some residual pain symptoms from his right knee and lumbar spine impairment that would cause some limitations in the claimant's exertional and postural abilities the record indicates that the symptoms from the claimant's physical impairments were somewhat well controlled with prescribed treatment methods. In addition, the claimant's activities of daily living during the period at issue supports that the symptoms are well controlled in order for him to function daily. Furthermore, Dr. Wallace's opinion is supported by the fact that he/she is a medical professional who has knowledge of the Social Security Disability Program and its evidentiary requirements.(Id.)
The ALJ then considered the opinion of Dr. Vinluan, another non-examining state agency medical consultant, who had reviewed the record as of March 8, 2021. (Id.) Dr. Vinluan opined that the claimant could perform light work (id. at 85), although the ALJ did not mention that conclusion. The ALJ noted only that Dr. Vinluan had concluded that Alvarado could “frequently balance, occasionally climb ramps/stairs, stoop and crouch but can never crawl, kneel and climb ladders/ropes/scaffolds.” (Id. at 25.) The ALJ concluded that Dr. Vinluan's opinion was “persuasive,” because it was “somewhat consistent with the record as a whole and is supported.” (Id.) The ALJ made the same observations, nearly verbatim, about Dr. Vinluan's opinion as he did about Dr. Wallace's opinion, except the ALJ's evaluation of Dr. Vinluan's opinion made puzzling reference to claimant's “mental impairments” (id.).
Dr. Vinluan's opinion does not make any reference to mental impairments. (See id. at 72-86.) Neither does Dr. Healy's opinion (id. at 827-31), which is cited by the ALJ and was reviewed by Dr. Vinluan. (Id. at 76.) The ALJ did not ask Alvarado about any mental impairments at the hearing, nor were any mental impairments identified in the brief submitted by Alvarado's counsel in advance of the hearing.
The ALJ then moved on to Dr. Healy, who, on August 11, 2020, had conducted an internal medicine consultative examination at the request of the SSA and concluded that Alvarado had moderate limitations sitting, standing, bending, lifting, walking, and climbing stairs, without specifying what those limitations were. (Id. at 830.) The ALJ found his opinion persuasive as well, stating that it was “somewhat consistent with the record as a whole and is supported therewith.” (Id. at 25.) The ALJ asserted that Dr. Healy's opinion was backed by his findings made during the claimant's August 2020 physical examination as well as by his reasoned explanations for his conclusions about the nature of Alvarado's limitations. The ALJ believed that Dr. Healy's opinion was also supported because of Dr. Healy's familiarity with the SSA's disability program and its evidentiary standards. (Id. at 25-26.)
Finally, the ALJ considered the opinions of the treating physicians at the New York Spine Institute, especially Dr. Passias, who had concluded that Alvarado's RFC was less than sedentary, in that he could not sit, stand, or walk for more than one hour at a time and could lift or carry up to five pounds only occasionally and never more weight than that. (Id. at 26, 845.) Dr. Passias had further opined that Alvarado would, due to treatment or his impairments, be absent three days per month. (Id. at 845.) The ALJ found this opinion “not persuasive,” explaining that, “[c]onsideration is not assigned to the opinions from the claimant's treating and examining sources regarding the claimant's total disability because the State Workers' Compensation regulation[s] on disability are different from the regulations of the Social Security Administration Disability Program regarding the assessment of disability.” (Id. at 26.)
The ALJ acknowledged that “Dr. Passias does provide a function by function less than sedentary residual functional capacity.” However, the ALJ went on to say that this assessment is “not persuasive,” because: “Dr Passias stated that clamant had the foregoing limitations since September 23, 2014. Yet, claimant worked more than 4 years after that date as a construction worker although supposedly limited to less than sedentary work.” (Id.) Based on this analysis, the ALJ found that Alvarado could perform sedentary work as defined in the SSA's regulations, with certain limitations, including that he should avoid working at unprotected heights or around dangerous machinery. (Id. at 24, 26)
After reaching a conclusion about Alvarado's RFC, at step four, the ALJ found that Alvarado was unable to perform his past relevant work as a construction worker, since the heavy exertion required exceeded Alvarado's RFC of performing unskilled sedentary work with limitations. (Id. at 26.)
At step five, after considering Alvarado's demographics and RFC, as well as the VE's testimony, the ALJ concluded that there were jobs that exist in significant numbers in the national economy that Alvarado could perform, such as semi-conductor bonder, surveillance system monitor, and cashier II. (Id. at 28.) Accordingly, the ALJ concluded that Alvarado had not been under a disability since the alleged onset date of May 28, 2019. (Id.)
III. Analysis
After determining whether the record is complete, a reviewing court decides whether the ALJ applied the correct legal standard. See Calvello v. Barnhart, No. 05-CV-4254 (SCR) (MDF), 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008), report and recommendation adopted, 2008 WL 4449357 (S.D.N.Y. Oct. 1, 2008). If there was legal error, the reviewing court must assess whether the error was harmless. If there was no legal error, or if any such error was harmless, the reviewing court must determine whether the ALJ's decision was supported by substantial evidence. See id.
Setting aside the decision and remanding is appropriate where the record was not fully developed, or where any legal error was not harmless, or where the decision was not supported by substantial evidence. See McClean v. Astrue, 650 F.Supp.2d 223, 226 (E.D.N.Y. 2009) (citing Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998)).
Alvarado argues that the ALJ failed to adequately develop the record; failed to properly evaluate the supportability and consistency of the medical opinions in the record; failed to correctly evaluate Alvarado's symptoms; and reached a conclusion - that Alvarado could perform certain jobs available in significant numbers in the national economy - that was not supported by substantial evidence. (ECF 16, Pl.'s Mem. at 13-24.) The Commissioner counters that the ALJ properly found the treating physician's opinion unpersuasive and that Alvarado's argument that the ALJ failed to properly consider supportability and consistency is actually an impermissible request that the Court reweigh the evidence; that the ALJ correctly evaluated Alvarado's symptoms; and that the conclusion that Alvarado could perform jobs that exist in the national economy in significant numbers was supported by substantial evidence. (ECF 22, Def.'s Mem. at 9-18.)
For the reasons set forth below, I conclude that the ALJ neglected to discharge the duty to develop the record and that his decision failed properly to assess the medical evidence and was not supported by substantial evidence. I also conclude that these errors were not harmless, so that setting aside the judgment and remand are warranted.
A. The ALJ's Failure To Discharge His Duty To Develop the Record Warrants Remand
I begin by analyzing the threshold issue of whether the ALJ discharged his duty to develop the record.
Courts in this Circuit have consistently held that an ALJ violates his duty to develop the record if he makes an RFC determination when no functional assessment exists in the record, or when any such assessments are insufficient, and he does not request a functional assessment. See Romero, 2020 WL 3412936, at *13 (collecting cases); see also Brooks v. Kijakazi, No. 20-CV-7750 (GBD) (JLC), 2022 WL 213994, at *17 (S.D.N.Y. Jan. 25, 2022) (applying the same principle under current regulations, which revised the treating physician rule), report and recommendation adopted, 2022 WL 715424 (S.D.N.Y. Mar. 10, 2022); Acosta Cuevas, 2021 WL 363682, at *11 (remanding because the ALJ fell “well short of [his] duty to develop at least a [12]-month period of [the] plaintiff's medical history”); Newton v. Berryhill, No. 18-CV-1244 (MPS), 2019 WL 4686594, at *2 (D. Conn. Sept. 26, 2019) (finding that the ALJ was required to inquire further to “understand why a treating physician believed that [the claimant's] ability to work was impeded - at least where there was no function-by-function analysis from a treating physician and . . . no information whatsoever from any medical source for nearly half of the relevant time period”).
“[D]espite the new regulations, an ALJ's duty to develop the record “takes on heightened importance with respect to a claimant's treating medical sources, because those sources ‘are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations.'” Brooks, 2022 WL 213994, at *17 (alterations in original) (quoting Marinez v. Comm'r of Soc. Sec., 269 F.Supp.3d 207, 216 (S.D.N.Y. 2017)); Gene L. v. Comm'r of Soc. Sec., No. 20-CV-0152 (CR), 2022 WL 178968, at *6 (D. Vt. Jan. 20, 2022) (explaining that “[a]lthough an ALJ need not defer to the opinions of a claimant's treating sources under the [SSA's] new regulations, the new regulations do not lessen an ALJ's duty to develop the record”).
An ALJ's failure to request a functional assessment from a treating physician or to request a more recent functional assessment may be harmless, and thus no remand warranted, in cases where “the record contains sufficient evidence from which an ALJ can assess the petitioner's residual functional capacity.” Tankisi v. Commr. of Soc. Sec., 521 Fed.Appx. 29, 34 (2d Cir. 2013). For example, remand may not be necessary when the ALJ rejects the medical opinion evidence in the record, but the RFC determination is supported by substantial evidence of functional capacity from “contemporaneous treatment notes.” Monroe v. Comm'r of Soc. Sec., 676 Fed.Appx. 5, 8-9 (2d Cir. 2017).
But “[a] decision not to remand assumes that there are no obvious gaps in the record precluding the ALJ from properly assessing the claimant's residual functional capacity.” Brooks, 2022 WL 213994, at *17 (quoting Newton, 2019 WL 4686594, at *2); see also Eusepi v. Colvin, 595 Fed.Appx. 7, 9 (2d Cir. 2014) (explaining that the ALJ was obligated to develop the record when there were “obvious gaps”). Courts uphold an ALJ's RFC assessment “only where the record is clear and, typically, where there is some useful assessment of the claimant's limitations from a medical source.” Staggers v. Colvin, No. 14-CV-0717 (JCH), 2015 WL 4751123, at *3 (D. Conn. Aug. 11, 2015). To satisfy the duty to develop the record, “an ALJ should have medical evidence from a medical source with a sufficiently persuasive opinion noting the existence and severity of a disability.” Brooks, 2022 WL 213994, at *17 (citing Marinez, 269 F.Supp.3d at 216).
In this case, the ALJ disregarded Dr. Passias's July 9, 2021 function-by-function assessment because Dr. Passias had opined, for purposes of the state workers' compensation determination, that Alvarado had been totally disabled since 2014, notwithstanding that Alvarado had continued working until May of 2018. (R. at 26.) The ALJ did not seek an explanation from Dr. Passias for why he believed Alvarado had been fully disabled since 2014 even though he had continued working in construction for four more years
Even if the decision to disregard Dr. Passias's function-by-function assessment were properly supported under the current regulations, and I believe it was not, see infra Part III(B), that decision meant that the ALJ made his RFC determination without any recent functional evaluation, and without any functional evaluation by a treating physician. The only other functional assessments in the record were by Drs. Wallace and Vinluan, who relied on Dr.
Passias's treatment notes and Dr. Healy's one-time consultative examination but who did not themselves examine Alvarado. (Dr. Healy did not provide a true functional assessment, stating on that Alvarado had “moderate limitations” on sitting, standing, bending, lifting, walking, and climbing stairs, without specifying what those limitations were. (Id. at 830.)
The most recent functional evaluation in the record besides Dr. Passias's was Dr. Vinluan's from March 8, 2021; the Vinluan evaluation was based on a review of medical records through February of 2021 - over seven months prior to the ALJ's decision on September 30, 2021 (id. at 84-86) - even though the record indicates that Alvarado's symptoms had been worsening over time. (Id. at 832, 867, 869, 873.) By February of 2021, Dr. Passias believed that Alvarado's surgery had become “medically necessary” and that Alvarado would “require adjacent levels treated in the future.” (Id. at 873.) On June 9, 2021 - six months after Dr. Vinluan's review of the medical record - Dr. Passias stated in a treatment note that Alvarado's “symptoms continue to worsen as he has been unable to receive the recommended surgery” and that the delay would affect “his long term outcome.” (Id. at 875.) Yet the ALJ did not seek an updated functional assessment from Dr. Passias after declining to consider the one he provided in July of 2021; nor did the ALJ request a functional assessment from another treating medical professional at the New York Spine Institute; nor did the ALJ request a fresh functional assessment from a consultative examiner. The ALJ could have done so, since his duty to develop the record can be extended to “the time that elapses between the claimant's application and the claimant's hearing date.” Pacheco v. ActingComm'r of Soc. Sec., No. 20-CV-5975 (JLC), 2022 WL 702303, at *14 (S.D.N.Y. Mar. 9, 2022) (quoting Corporan v. Comm'r of Soc. Sec., No. 12-CV- 6704 (JPO), 2015 WL 321832, at *27 (S.D.N.Y. Jan. 23, 2015) (internal quotation marks omitted)).
Under these circumstances - the absence of a functional evaluation the ALJ did not reject out of hand from a treating physician who was familiar with Alvarado's impairments, and the absence of any functional evaluation covering the final seven months of the relevant period - there was an “obvious gap” in the record, and the failure to seek a new functional evaluation violated the ALJ's duty to develop the record to fill that gap. Brooks, 2022 WL 213994, at *17; see also Pacheco, 2022 WL 702303, at *14 (finding that the ALJ had erred by neglecting to seek an updated opinion from a treating source after having determined the one the treating physician had provided was of little weight, “despite the fact that she was the only treating source to provide a medical source opinion and that she continued to treat [claimant] for more than four months between her statement and the hearing before the ALJ”); Mondschein v. Saul, No. 19-CV-1019 (RAR), 2020 WL 4364058, at *4-6 (D. Conn. Jul 30, 2020) (requiring the ALJ to further develop the record by requesting either an opinion from new doctor or an “updated opinion” from a doctor who had already provided an opinion, but only after just having begun to treat the claimant); Thomas M.N. v. Comm'r of Soc. Sec., No. 19-CV-0360 (GTS), 2020 WL 3286525, at *5 (N.D.N.Y. Jun. 18, 2020) (directing the ALJ to develop the record further by seeking an “updated opinion” that explained the nature of the claimant's functional limitations).
B. The ALJ's Failure To Properly Assess the Medical Opinions Warrants Remand
I next turn to the question whether the ALJ properly assessed the medical opinions in the record.
Current SSA regulations require an ALJ to “consider all medical opinions in the record and evaluate their persuasiveness, considering the factors outlined in the regulations and specifically explaining, in all cases, how he assessed the ‘supportability' and ‘consistency' factors.” Hernandez v. Kijakazi, No. 21-CV-4918 (VF), 2023 WL 2207601, at *8 (S.D.N.Y. Feb. 24, 2023) (quoting 20 C.F.R. § 416.920c(b)(2)); see also Velasquez v. Kijakazi, No. 19-CV-9303 (DF), 2021 WL 4392986, at *25 (S.D.N.Y. Sept. 24, 2021); Jackson v. Kijakazi, 588 F.Supp.3d 558, 585 (S.D.N.Y. 2022). Here, in assessing the weight to afford each medical opinion, the ALJ failed to adequately explain how the opinions on which he relied were supported and consistent with the evidence in the record as well as why the opinion he found not persuasive lacked support and was inconsistent with the evidence in the record.
This conclusion is not, as the Commissioner suggests (ECF 22, Def.'s Mem at 12), an impermissible determination that the ALJ should have weighed the medical evidence differently; rather, it is an assessment that the ALJ's decision does not meet the requirements set out in current SSA regulations for explaining the conclusion that Alvarado had an RFC for sedentary work with limitations.
1. Supportability
An ALJ's analysis of supportability is insufficient if there is no specific explanation of how the medical sources supported their own opinions. In Acosta Cuevas, for example, the Court ordered remand for failure to properly assess medical evidence when the ALJ neglected “to apply or even consider the supportability factor.” 2021 WL 363682, at *14. In that case, the ALJ never provided the explanation required by current regulations of “what the respective [consultative examiners] used to support their opinions and reach their ultimate conclusions.” Id. The ALJ instead discussed “some of the objective medical evidence in the record in comparison to the [consultative examiners'] opinions to determine if the evidence and opinions were consistent,” id., but as the Court explained, that discussion addressed consistency rather than supportability. See id. The ALJ took the same approach here.
With respect to Drs. Wallace and Vinluan, the ALJ summarized their opinions and asserted that those opinions were supported, but he never said how those doctors justified their findings, which falls short of what the regulations require. See Jackson, 588 F.Supp.3d at 585-86 (finding error where “the ALJ did not explain, as the new regulations require, what [the evaluating doctor] used to support her opinion and reach her ultimate conclusion”); Hernandez, 2023 WL 2207601, at *9 (finding that the ALJ's single statement that a medical opinion was “well-supported by a review of the available evidence at the time of his finding including the consultative examination report” was inadequate because it did not explain how the “opinion was supported by the underlying medical evidence in the record”); Ayala v. Kijakazi, 620 F.Supp.3d 6, 31 (S.D.N.Y. 2022) (noting that ALJ's conclusory assessment of the supportability factor, which stated that a doctor's opinion was “supported by record review,” was insufficient); Prieto v. Comm'r of Soc. Sec., No. 20-CV-3941 (RWL), 2021 WL 3475625, at *13 (S.D.N.Y. Aug. 6, 2021) (explaining that the ALJ “failed to satisfy his obligations under the applicable regulations” where he merely stated that a doctor's opinion was “supported by the medical evidence of record and by her underlying examination”). The ALJ must “[e]schew[ ] rote analysis and conclusory explanations,” and “discuss the . . . crucial factors in any determination . . . with sufficient specificity to enable the reviewing court to decide whether the determination is supported by substantial evidence.” Vellone, 2021 WL 319354, at *4 (citation omitted). Here, the conclusory statement from the ALJ that the opinions of Drs. Wallace and Vinluan were well supported lacks any specificity and thus does not provide a meaningful basis from which the Court can assess how the supportability factor was assessed by the ALJ.
Rather than pointing to the evidence relied on by Drs. Wallace and Vinluan, the ALJ claimed that “the record indicates that the symptoms from the claimant's physical impairments were somewhat well controlled with prescribed treatment methods.” (R. at 25.) But that observation goes to whether the opinions were consistent with the record rather than whether they were supported.
The ALJ added his personal assessment that “claimant's activities of daily living during the period at issue supports that the symptoms are well controlled in order for him to function daily” (id.) - a conclusion that ignores Alvarado's testimony that he needed assistance with shopping, cooking, laundry, showering, and dressing to the extent he needed to bend to put on clothes and shoes. (Id. at 49-50.) Even if the ALJ's conclusion about Alvarado's daily functioning were supported by record evidence, it could not replace the missing description of the evidence Drs. Wallace and Vinluan used to support their findings.
As to Dr. Healy's opinion, the ALJ said it was supported by findings made during the claimant's August 2020 physical examination as well as by Dr. Healy's reasoned explanations for his conclusions about the nature of Alvarado's limitations. (Id. at 26.) But the ALJ improperly fails to identify which findings from the August 2020 physical examination supported Dr. Healy's opinion. And the ALJ's assertion that Dr. Healy's assessment was supported by reasoned explanations of his conclusions about the cause of Alvarado's limitations is not borne out by Dr. Healy's opinion, which provides no explanations for the findings about Alvarado's limitations. (Id. at 827-30.) As such, the ALJ's analysis of the supportability of Dr. Healy's opinion is also deficient. See, e.g., Jackson, 588 F.Supp.3d at 586 (finding that the ALJ failed to appropriately address supportability when the ALJ's explanation of the basis for the medical opinion was not borne out by that document).
Moreover, the ALJ asserts that the opinions of Drs. Wallace, Vinluan, and Healy were supported and therefore persuasive because those doctors were familiar with SSD evidentiary standards. He cites no caselaw to support the proposition a doctor's familiarity with SSD evidentiary standards is a basis for concluding that the doctor has properly identified the evidence that supports his opinion, and I have been unable to locate any. To the contrary, this basis for evaluating a medical opinion improperly assumes there is inherent persuasiveness in opinions given by doctors who are familiar with SSD guidelines, notwithstanding that the 2017 revisions to the SSA regulations were intended to eliminate any hierarchy of medical experts. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed.Reg. 5844-01, 5844 (Jan. 18, 2017) (“We revised the factors for considering medical opinions and prior administrative medical findings in final 404.1520c and 416.920c to both emphasize that there is not an inherent persuasiveness to evidence from [government medical expert] sources over an individual's own medical source(s), and vice versa . . . .”).
In weighing Dr. Passias's opinion as not persuasive, the ALJ does not address the support Dr. Passias provided for his opinion - Dr. Passias cited to numerous scans and tests (R. at 784, 794, 838) - focusing only on the issue of consistency. (Id. at 26.) This is insufficient under the current regulations. See, e.g., Jackson, 588 F.Supp.3d at 586 (ruling that the ALJ's failure to address the extent to which the treating nurse practitioner's opinion was supported by her examination and findings did not meet the requirements of the current regulations).
2. Consistency
An ALJ's assessment of the consistency of a medical opinion with the record evidence is inadequate when that assessment “ignores or mischaracterizes medical evidence or cherrypicks evidence that supports [the ALJ's] RFC determination while ignoring other evidence to the contrary.” Jackson, 588 F.Supp.3d at 585 (citing Velasquez, 2021 WL 4392986, at *27). Citing to “some objective medical evidence in the record” and concluding that the opinion is “consistent with other evidence in the file” is not sufficient. Acosta Cuevas, 2021 WL 363682, at *14. But that is the approach taken by the ALJ here.
To begin with, the ALJ incorrectly concluded that the opinions of Drs. Wallace, Vinluan, and Healy were “persuasive” even though he characterized those opinions as being only “somewhat consistent” with the record (R. at 25). See Thaddeus D. v. Comm'r of Soc. Sec., No. 21-CV-01304 (JGW), 2023 WL 4352940, at *4 (W.D.N.Y. July 5, 2023) (finding that the ALJ had properly concluded that the opinions of certain medical consultants were only partially persuasive, “because although the opinions were based on a review of the medical evidence, they were only somewhat consistent with the findings in the medical evidence”).
With regard to Dr. Wallace's opinion, the ALJ also found it persuasive, despite the ALJ's mistaken belief that Dr. Wallace had concluded that Alvarado was capable of light work while the ALJ determined that Alvarado was capable of sedentary work with limitations. (R. at 25.) The ALJ never explained the discrepancy between his finding (RFC for sedentary work with limitations) and the finding he attributed to Dr. Wallace (RFC for light work), which represents error under the current rules. See Jackson, 588 F.Supp.3d at 586 (holding that the ALJ's finding that a consultant's opinion was “persuasive” despite the consultant's conclusion that the claimant was capable of light work while the ALJ determined he was capable of sedentary work with exceptions, without explaining the discrepancy, fails to address consistency as required by current regulations). For the same reason, the ALJ's evaluation of consistency in connection with Dr. Vinluan's opinion, which actually took the position that Alvarado was capable of light work with limitations (R. at 85), was also deficient.
The ALJ's assessment of the consistency of Dr. Vinluan's opinion is further flawed since the ALJ apparently thought the opinion addressed mental impairments when no other evidence in the record reflects such impairments and Alvarado did not seek benefits based on mental impairments.
The ALJ also erred by neglecting to identify the specific objective findings on which he relied when concluding that Dr. Healy's opinion was somewhat consistent with the evidence in the record. See Jackson, 588 F.Supp.3d at 586-87 (holding that although the ALJ had provided a summary of the doctor's findings when concluding that the opinion was “consistent with the findings of other exams throughout the longitudinal records,” the ALJ erred by not “identifying] the specific objective findings to which he referred”); Hernandez, 2023 WL 2207601, at *10 (explaining that the ALJ's finding that a non-examining state doctor's opinion was “consistent with the evidence reviewed at the hearing level” was deficient because it failed to identify the “specific objective findings to which he referred when” reaching that conclusion).
With regard to Dr. Passias's opinion, the ALJ made the assessment that “[t]he opinion is not consistent with the medical records nor claimant's activities of daily living,” because Dr Passias had placed the onset of Alvarado's limitations in 2014, even though Alvarado had continued working as a construction laborer until 2018. (R. at 26.) But it is not necessarily the case that an incorrect assessment of Alvarado's RFC as of 2014 means that the 2021 RFC evaluation was inconsistent with the contemporaneous medical and other evidence. And because the ALJ asserted that Alvarado's ability in 2021 to perform daily life activities was inconsistent with a conclusion that Alvarado could not perform even sedentary work, the ALJ had an obligation to identify the medical evidence on which he relied, as well as any contrary medical and non-medical evidence in the record. See Hernandez, 2023 WL 2207601, at *10. It is not sufficient to cite to some record evidence and then claim that an opinion is “consistent with other evidence in the file,” thereby rendering it “persuasive.” Acosta Cuevas, 2021 WL 363682, at *14. “Consistency is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record . . . .” Id. at *10 (emphasis supplied).
Additionally, a “claimant's participation in the activities of daily living will not rebut his or her subjective statements of pain or impairment unless there is proof that the claimant engaged in those activities for sustained periods of time comparable to those required to hold a . . . . job.” Polidoro v. Apfel, No. 98-CV-2071 (RPP), 1999 WL 203350, at *8 (S.D.N.Y. Apr. 12, 1999). There is no such proof in this matter.
In this regard, Alvarado is correct (ECF 16, Pl.'s Mem. at 23) that the ALJ's assessment of his symptoms was not supported by substantial evidence.
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Remand is warranted where, as here, the ALJ neglected to apply the proper legal standard, including by failing to adequately consider and apply the current regulatory factors. See, e.g., Jackson, 588 F.Supp.3d at 587 (remanding where ALJ failed to properly assess the medical evidence); Acosta Cuevas, 2021 WL 363682, at *9 (“[J]ust as under the previous regulations when failure to fully consider the Burgess factors . . . would be grounds for remanding an ALJ's decision, an ALJ's failure to adequately consider and apply the new regulatory factors also requires a reviewing court to remand.”).
C. The ALJ's Conclusion that Alvarado Could Perform Jobs Available in Significant Numbers in the National Economy Was Not Supported by Substantial Evidence
Dr. Passias opined that Alvarado's impairments and need for treatment would cause him to be absent from work three days per month and to be off task about 20% of the time. (R. at 845.) The VE testified that if a person was to be absent from work three days a month, or if he was off task more than 15% of the time, he would not be able to maintain employment. (Id. at 57.) Yet the ALJ failed to discuss the VE's testimony about the significance of Alvarado's possible absenteeism and time spent off task. In Matos v. Commissioner of Social Security, the Court found legal error where the ALJ had ignored:
parts of the vocational expert's testimony on which he relied to satisfy his burden at step five . . . . The ALJ's hypothetical question posed to the vocational expert did not match or adequately reflect the ALJ's residual functional capacity assessment because it included limitations concerning absenteeism, tardiness, and off-task that the ALJ erroneously failed to address in the residual functional capacity determination.No. 20-CV-10686 (GBD) (JW), 2022 WL 3084512, at *8 (S.D.N.Y. June 16, 2022); see also Guzman v. Comm'r of Soc. Sec., No. 20-CV-7420 (JMF) (SDA), 2022 WL 2325908, at *10 (S.D.N.Y. June 10, 2022) (explaining that, where there is evidence in the record supporting potential absences, even if the ALJ appears to have found the medical opinion containing such evidence unpersuasive, his failure to discuss the absence portion of the opinion, in light of the VE's testimony about the significance of absences to the ability to hold a job, was legal error), report and recommendation adopted, 2022 WL 2316643 (June 28, 2022); cf. Jackson, 588 F.Supp.3d at 588 (holding that the failure to credit a treating nurse practitioner's conclusion that the claimant would miss about three days of work per month due to his impairment was not harmless because the VE had testified that missing that amount of work would mean the claimant could not maintain a job). The ALJ erred by neglecting to address the VE's testimony that being off task 20% of the time or missing three or more days a week of work would make Alvarado unemployable.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Alvarado's motion be GRANTED, that the Commissioner's cross-motion be DENIED, and that the case be REMANDED for further proceedings. If Your Honor adopts this report and recommendation, on remand, the ALJ should be directed to explicitly consider the supportability and consistency of the relevant medical opinions; to obtain a fresh functional assessment, preferably from a treating source; and to reassess Alvarado's RFC and the corresponding availability of suitable jobs that exist in significant numbers in the national economy, particularly in light of the record evidence about the significance of his possible absenteeism and time spent off task.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO REPORT AND RECOMMENDATION
The parties shall have fourteen days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure to this Report and Recommendation. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Cronan.
THE FAILURE TO OBJECT WITHIN FOURTEEN DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140 (1985).