Opinion
1:21-cv-01928 (GBD) (SDA)
08-06-2022
Quennel W. Malone, Plaintiff, v. Commissioner of Social Security, Defendant.
TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE:
REPORT & RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Quennel W. Malone (“Malone” or “Plaintiff”) brings this action, pursuant to Section 205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the “Commissioner”) that denied his application for Supplemental Security Income (“SSI”). (Compl., ECF No. 1.) Presently before the Court are the parties' cross-motions, pursuant to Federal Rule of Civil Procedure 12(c), for judgment on the pleadings. (Pl.'s Not. of Mot., ECF No. 22; Comm'r Not. of Mot., ECF No. 26.) For the reasons set forth below, I respectfully recommend that Plaintiff's motion for judgment on the pleadings be DENIED and the Commissioner's cross-motion be GRANTED.
BACKGROUND
I. Procedural Background
On October 18, 2017, Malone filed an application for SSI. (Administrative R., ECF No. 13 (“R.”), 10, 73.) The Social Security Administration (“SSA”) denied Malone's application on February 13, 2018 (R. 89-94), and he requested a hearing before an Administrative Law Judge (“ALJ”) on April 19, 2018. (R. 96-97.) On May 10, 2019, a hearing was held before ALJ John Carlton in Bronx, New York. (R. 64-72.) Malone did not appear at the hearing, but was represented by his attorney, David Levine. (R. 66-67.) On February 19, 2020, a second hearing was held before ALJ Carlton. (R. 34-62.) Malone appeared and was represented at the second hearing by attorney Jacques Farhi. (R. 36.) On April 13, 2020, ALJ Carlton issued a decision denying Malone's claim. (R. 10-22.) Malone filed an appeal of the decision to the Appeals Council. (R. 190-93.) On January 7, 2021, the Appeals Council denied his request to review the ALJ's decision, thereby making the ALJ's decision the final decision of the Commissioner. (R. 1-6.) This action followed.
II. Non-Medical Evidence
Malone was born on September 17, 1985. (R. 21.) He dropped out of school in the ninth grade and participated in a G.E.D. program in 2020. (R. 43.) Malone previously worked as a bag packer from February 2005 to July 2009; as a laborer in 2008; and in security from October 2011 to January 2012. (R. 87.) At the time of the February 19, 2020 hearing, Malone had been living in a friend's apartment, sleeping on the couch, for about two years. (R. 49.)
In his memorandum in support of his motion for judgment on the pleadings, Plaintiff argues that the ALJ improperly evaluated the opinions of his treating psychiatrist and failed to properly consider his learning disability. (See Pl.'s Mem., ECF No. 23, at 15-22.) Thus, the Court below summarizes certain of the relevant medical evidence regarding only Plaintiff's mental impairments. In addition, for SSI benefits, the relevant time period is from “the date the SSI application was filed” to “the date of the ALJ's decision,” Frye ex rel. A.O. v. Astrue, 485 Fed.Appx. 484, 485 n.1 (2d Cir. 2012); here, from October 18, 2017 to April 13, 2020. Thus, the Court focuses on the period beginning in October 2017, but also addresses Plaintiff's 2014 psychological testing. Notwithstanding the foregoing, the Court has reviewed the entire administrative record in making its recommendation contained herein.
A. Treatment Records
On October 9, 2017, Dr. Karamchand Rameshwar, Malone's treating psychiatrist at PSI Counseling Center, and Allen Sutton, a psychiatric nurse practitioner at PSI Counseling Center (“NPP Sutton”), completed a Treating Physician's Wellness Plan Report, in which they noted Malone's diagnoses as major depressive disorder, panic disorder with agoraphobia and attention deficit hyperactivity disorder (“ADHD”). (R. 484-85.) The report also stated that Malone had anxiety and a learning disability and was unable to carry out normal functioning for long periods. (Id.) The report noted that Malone was taking Wellbutrin XL and Klonopin. (Id.)
Agoraphobia, which often is associated with panic attacks, is “a mental disorder characterized by an irrational fear of leaving the familiar setting of home, or venturing into the open, so pervasive that a large number of external life situations are entered into reluctantly or avoided.” Kuchenmeister v. Berryhill, No. 16-CV-07975 (HBP), 2018 WL 526547, at *1 n.5 (S.D.N.Y. Jan. 19, 2018) (citation omitted).
Wellbutrin XL is a once-a-day antidepressant containing the active pharmaceutical ingredient bupropion hydrochloride. See In re Wellbutrin XL Antitrust Litig., No. 08-CV-02431, 2012 WL 1657734, at *1 (E.D. Pa. May 11, 2012), aff'd, 868 F.3d 132 (3d Cir. 2017).
“Klonopin is a brand name for the drug clonazepam, which is prescribed for, inter alia, panic disorders, anxiety, and seizures.” Holly S. v. Kijakazi, No. 20-CV-01632 (ATB), 2022 WL 1775712, at *17 (N.D.N.Y. June 1, 2022).
On November 13, 2017, Malone saw NPP Sutton for medication management. (R. 46344.) NPP Sutton's mental status examination showed appropriate grooming; appropriate motor activity; cooperative attitude; normal speech; appropriate thought form; no delusions; no suicidal ideation or hallucinations; sad affect and mood; good concentration; good short-term recall; fair recall and retention; and fair judgment. (R. 463.) NPP Sutton prescribed Wellbutrin XL and Klonopin and recommended monthly medication management and bi-weekly psychotherapy. (R. 464.)
On December 11, 2017, Malone saw NPP Sutton for medication management and reported family problems and feeling depressed. (R. 738-39.) Malone was alert and oriented with a stable mood, and a mental status examination showed appropriate, rational and coherent thought form; no delusions; no suicidal ideation; no hallucinations; and a sad and irritable affect and mood. (Id.) Malone received a refill on his medication Wellbutrin XL and Klonopin. (Id.)
On January 22, 2018, Malone saw NPP Sutton for medication management and reported that he had improved symptoms and was less anxious, but that his stressors remained the same. (R. 736.) NPP Sutton noted that Malone's “[m]ental status [was] stable.” (Id.) An examination showed appropriate, rational and coherent thought form; no delusions; no suicidal ideation; no hallucinations; and a neutral and euthymic affect and mood. (Id.) He again received a refill of his medications. (Id.)
On February 16, 2018, Malone saw Maxwell Rosenberg, LMSW (“LMSW Rosenberg”) at the PSI Counseling Center for a care plan review. (R. 733.) Malone reported taking medication about 4 to 5 days a week and feeling down. (Id.) Malone further reported not taking medication when he drank alcohol, which he did about twice a week, because of concerns about mixing them. (Id.) Malone expressed frustration with his wife after she accused him of “doing nothing” and making him feel worthless; however, he reported he was more involved with the children than she was and that he found this unfair. (Id.)
On March 5, 2018, Malone again saw NPP Sutton for medication management and reported that he was anxious due to his family situation, and that he had constant worry and stress due to his financial situation. (R. 731.) A mental status examination showed appropriate, rational and coherent thought form; no delusions; no suicidal ideation; no hallucinations; and neutral and euthymic affect and mood. (Id.) He again received a refill of his medications. (Id.)
During the next medication management appointment on May 21, 2018, NPP Sutton noted that Malone was alert and oriented with a stable mood, but that he continued to stress about his financial situation. (R. 729.) A mental status examination showed appropriate, rational and coherent thought form; no delusions; no suicidal ideation; no hallucinations; and neutral and somber affect and mood. (Id.) NPP Sutton refilled Malone's prescriptions. (Id.)
On September 6, 2018, NPP Sutton completed a Treating Physician's Wellness Report noting that Malone had reoccurring depressive symptoms causing dysfunction and anxiety with pain. (R. 584.) The report states that Malone displayed inattentiveness, difficulty focusing and poor concentration. (Id.) The report also stated that Malone attended his scheduled appointments, took his prescribed medication and complied with other types of treatment. (Id.) NPP Sutton listed Malone's diagnoses as major depressive disorder, panic disorder and ADHD, and stated that the “diagnosis/condition” for which Malone was being treated had been resolved or stabilized. (R. 584-85.) Nevertheless, NPP Sutton opined that Malone was unable to work for at least 12 months. (R. 585.)
On October 16, 2018, Malone met with NPP Aleen Boyd-McKoy (“NPP Boyd-McKoy”) at the PSI Counseling Center for medication management. (R. 608.) Malone reported that he had missed appointments because he was busy and could not get an appointment with the same doctor. (Id.) Malone reported being down at times and anxious, but that the medication helped. (Id.) He denied alcohol and drug use. (Id.) NPP Boyd-McKoy refilled Malone's medications for Wellbutrin XL and Klonopin and recommend bi-weekly psychotherapy. (R. 609.)
On November 26, 2018, Malone walked into the PSI Counseling Center without an appointment and met with LMSW Rosenberg. (R. 606.) LMSW Rosenberg saw Malone for psychotherapy and did a treatment plan review. (R. 615-19.) LMSW Rosenberg recommended that Malone continue with bi-weekly psychotherapy and monthly medication management. (R. 615.) LMSW Rosenberg noted that Malone had “been coming less consistently since [his] last care plan,” and reported that “his depression [was] ‘a little better.'” (R. 616.) Malone also reported that his “anxiety [was] higher since [his] last care plan,” that he felt a “lot of pressure,” and that he had had a panic attack that morning, but his breathing exercises were helping, and he took Klonopin as needed. (Id.) In addition to LMSW Rosenberg, the treatment plan was signed by supervisor LCSW Marisol Martinez and Dr. Rameshwar. (R. 619.)
The following day, on November 27, 2018, Malone met with NPP Boyd-McKoy for medication management and reported that he was “alright.” (R. 603.) Malone again reported that he missed appointments and felt down at times and anxious, but the medication helped. (Id.) NPP Boyd-McKoy refilled Malone's prescriptions. (R. 604.)
On March 26, 2019, Malone saw NPP Boyd-McKoy for medication management after running out of medication. (R. 674.) Malone reported that he missed his medication follow-up appointment, but he was attending therapy and was “ok.” (R. 674.) A mental status examination showed Malone had appropriate grooming; appropriate motor activity; a cooperative attitude; normal speech; appropriate, rational and coherent thought form; no delusions; no suicidal ideation; no hallucinations; neutral and euthymic affect and mood; and alert cognitive functioning. (R. 674-75.) NPP Boyd-McKoy refilled Malone's prescriptions. (R. 675.)
On July 16, 2019, Malone saw NPP Boyd-McKoy for medication management and stated that he was “good.” (R. 672.) Malone reported that he had difficulty focusing, stayed home, took care of his eight-year-old son, was taking his anti-depressant and was taking Klonopin as needed for panic attacks. (Id.) A mental status examination showed Malone had appropriate grooming; appropriate motor activity; cooperative attitude; normal speech; appropriate, rational and coherent thought form; no delusions; no suicidal ideation; no hallucinations; neutral and euthymic affect and mood; and alert cognitive functioning. (R. 673.) NPP Boyd-McKoy refilled Malone's prescriptions. (Id.)
On November 4, 2019, Malone saw NPP Patrick Tigenoah (“NPP Tigenoah”) at the PSI Counseling Center for medication management. (R. 669.) Malone reported that his medication was effective, he did not miss doses, and he did not have any side effects. (Id.) NPP Tigenoah noted that Malone was responding well to treatment. (Id.) An examination showed rational and coherent thought form; no delusions, suicidal ideation or hallucinations; and neutral and euthymic affect and mood. (R. 670.) NPP Tigenoah refilled Malone's prescriptions. (Id.)
On November 7, 2019, Malone saw LMSW Rosenberg for a psychosocial update. (R. 705-08.) LMSW Rosenberg noted that Malone had been attending individual and group therapy intermittently, but was engaged when he did attend, and was taking medications “off and on.” (R. 705.) Malone reported symptoms of depressed mood, difficulty sleeping, anhedonia, low energy, anxiety, panic attacks, chronic worry, agoraphobia, inattentiveness and hyperactivity. (Id.) He also reported being diagnosed as a child with dyslexia and ADHD. (Id.) He stated that his primary stress was related to financial problems, co-parenting and a “conflictual” relationship with his children's mother. (Id.) Malone reported difficulty being around crowds and leaving the house and was assessed with moderate episodes of recurrent major depressive disorder and ADHD. (Id.) An examination showed appropriate motor activity; cooperative attitude; normal speech; appropriate, rational and coherent thought form; neutral and serious affect and mood; fair concentration, insight, judgment and ability to abstract; and good fund of knowledge, recall, retention, impulse control and intellectual functioning. (R. 707.) LMSW Rosenberg noted that Malone wished to continue psychotherapy and medication management, which “remain[ed] appropriate for this level of care.” (Id.)
“‘Anhedonia' is defined as ‘total loss of feeling of pleasure in acts that normally give pleasure.'” Polanco v. Comm'r of Soc. Sec., 304 F.Supp.3d 345, 352 n.8 (S.D.N.Y. 2018) (citing Dorland's Illustrated Medical Dictionary 83 (28th ed. 1994)).
On December 16, 2019, Malone saw NPP Tigenoah for a psychiatric assessment. (R. 710; see also R. 654.) He told NPP Tigenoah that he was taking his medications “on and off.” (R. 710.) Malone was assessed with moderate episodes of recurrent major depressive disorder and ADHD. (R. 713.) An examination showed appropriate, rational and coherent thought form; no delusions, suicidal ideation or hallucinations; and neutral and pleasant affect and mood. (Id.) NPP Tigenoah opined that Malone was able to perform his own activities of daily living. (Id.)
B. Medical Opinions
1. 2014 Psychological Evaluation
On April 24, 2014, Dr. Ali Khadivi, Ph.D., and Lauren Gonzales, M.A. (a psychology extern), prepared a psychological evaluation of Malone. (R. 719-24.) The report noted that Malone had a history of a learning disability, anxiety and depression. (R. 719.) Malone stated that he did not have difficulty obtaining a job and usually began with a strong start, but that his performance decreased over time and was unable to handle added responsibility and report reading and writing. (R. 720.)
Testing revealed that Malone had a full-scale IQ of 78, placing him in the low average range. (R. 722.) Dr. Khadivi noted diagnostic impressions of anxiety disorder including panic disorder. (R. 723.) He opined that Malone displayed severe deficiencies in the ability to recognize words and read and comprehend sentences. (Id.) Dr. Khadivi explained that, although Malone demonstrated a strong ability to communicate verbally, the discord between his verbal and reading abilities was indicative of a severe learning disability in reading. (Id.) Dr. Khadivi further opined that Malone's severe form of learning disability coupled with attentional difficulties made it very difficult to obtain employment and strongly recommended that he apply for SSI. (R. 724.)
2. January 10, 2018 Psychiatric Consultative Examination
On January 10, 2018, Dr. W. Amory Carr, Ph.D., conducted a psychiatric consultative examination of Malone. (R. 622-25.) Dr. Carr noted that Malone had dropped out of high school in the ninth grade and received special education services for his learning problems and previously was employed as a security guard in 2012, but stopped working due to mental health problems. (R. 622.) Malone reported that he did poorly on the job due to learning problems; that he had sleeping problems, increased appetite, dysphoric moods, loss of usual interests, feelings of worthlessness; and he withdrew socially. (Id.) Malone also reported having anxiety about the way his life was going and the fact that he was not working, but he denied being afraid to leave his home as a result of anxiety. (R. 623.)
On mental status examination, Dr. Carr found that Malone had word-finding difficulties and his receptive language skills appeared poorly developed, but his thought process was coherent and goal directed. (R. 623.) Dr. Carr noted that Malone's affect was somewhat dysphoric, his mood was dysthymic and his attention and concentration were impaired due to limited intellectual functioning. (R. 623-24.) In addition, Dr. Carr found that Malone's recent and remote memory skills were mildly impaired, his cognitive functioning appeared borderline and his fund of information seemed somewhat limited. (R. 624.) Malone reported that he was able to independently dress, bathe, groom himself, prepare food, clean, do laundry, shop, manage money, drive and take public transportation, but he did not take the train because of his physical pain, did not socialize with friends and described no hobbies. (Id.)
Dr. Carr opined that Malone had mild limitations in his ability to understand, remember and apply simple directions and instructions, maintain personal hygiene and be aware of normal hazards; mild to moderate limitations in his ability to sustain concentration and perform a task at a consistent pace and to sustain an ordinary routine and regular attendance at work; and moderate limitations in his ability to use reason and judgment to make work-related decisions, interact adequately with supervisors, coworkers and the public, and regulate emotions, control behavior, and maintain well-being. (R. 624-25.) Dr. Carr opined that these difficulties were caused by psychiatric problems. (R. 625.)
Dr. Carr diagnosed Malone with adjustment disorder with depressed mood and anxiety, but indicated that major depressive disorder, cannabis use disorder and intellectual disability should be ruled out. (R. 625.) Dr. Carr also indicated that Malone could benefit from an intellectual assessment. (Id.)
Dorland's Illustrated Medical Dictionary defines “adjustment disorder” as “a maladaptive reaction to identifiable stressful life events, such as divorce, loss of job, physical illness, or natural disaster; this diagnosis assumes that the condition will remit when the stress ceases or when the patient adapts to the situation.” Dorland's Illustrated Medical Dictionary 547 (32d ed. 2012).
3. January 16, 2018 State Medical Consultant Evaluation
On January 16, 2018, a state medical consultant, S. Juriga, Ph.D., completed an evaluation of Malone based upon review of medical records. (R. 80-81, 85-86.) Dr. Juriga opined that Malone had moderate limitations in his ability to understand and remember detailed instructions; his ability to carry out detailed instructions; his ability to respond appropriately to criticism from supervisors; and his ability to respond appropriately to changes in the work setting. (R. 85-86.) Dr. Juriga further opined that Malone was not significantly limited in his ability to perform activities within a schedule; maintain regular attendance and be punctual within customary tolerances; and to sustain an ordinary routine without special supervision. (Id.) Dr. Juriga concluded that Malone “does have severe impairments but is capable of performing unskilled work on a sustained basis.” (R. 86.)
4. July 31, 2018 Medical Source Statement
On July 31, 2018, Dr. Rameshwar and Steven Baumann, a psychiatric nurse practitioner (“NPP Baumann”) completed a Medical Source Statement regarding Malone's mental impairments. (R. 580-83.) Dr. Rameshwar and NPP Baumann identified the following symptoms: poor memory; appetite disturbance with weight changes; sleep disturbance; mood disturbance; emotional liability; recurrent panic attacks; anhedonia or pervasive loss of interests; psychomotor agitation or retardation; feelings of guilt/worthlessness; difficulty thinking or concentrating; social withdrawal or isolation; decreased energy; generalized persistent anxiety; hostility; and irritability. (R. 580.) Dr. Rameshwar and NPP Baumann noted that Malone had a low I.Q. or reduced intellectual functioning due to his ADHD and learning disabilities, and his ability to understand, remember, and carry out instructions were affected by his impairments which would cause him to be absent from work about three times a month. (R. 581.) They opined that Malone would miss about three days of work a month due to his impairments. (Id.) With respect to Malone's functional ability, Dr. Rameshwar and NP Baumann checked off boxes indicating that Malone had moderate to marked limitations in all listed areas of work-related functioning. (R. 582-83.)
5. January 28, 2020 Medical Source Statement
On January 28, 2020, Dr. Rameshwar and NPP Tigenoah completed a Medical Source Statement. (R. 715-18.) They reported that Malone's psychosocial factors included learning disabilities, financial difficulties, a strained relationship with his children's mother and chronic pain. (R. 715.) They identified the same symptoms as the July 31, 2018 Medical Source Statement, except they did not identify psychomotor agitation or retardation as a symptom. (Id.)
Dr. Rameshwar and NPP Tigenoah opined that Malone had a marked loss in the same abilities as the prior statement, except they found marked loss rather than moderate loss in his ability to work in coordination with or proximity to others without being unduly distracted and his ability to be aware of normal hazards and take precautions. (See R. 717.) They also found that Malone had a marked restriction of activities of daily living; marked difficulties in maintaining social functioning; frequent deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner (in work settings or elsewhere); and repeated episodes of deterioration or decompensation in work or work-like settings which causes the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors). (R. 718.) Dr. Rameshwar and NPP Tigenoah opined that Malone would miss more than three days of month of work due to his impairments. (R. 716.)
IV. The Administrative Hearings
A. Plaintiff's Testimony
At the February 19, 2020 hearing, Plaintiff testified that it had been difficult for him to keep prior jobs due to dyslexia, explaining that when he worked a job in security, he had been criticized by a supervisor when he tried to write a report, which affected him psychologically. (R. 53-54.) He needed instructions to be given to him slowly, and he sometimes had conflicts regarding paperwork, but generally got along with people. (R. 55.) Plaintiff filled out his disability forms himself because he could write “pretty good,” but he could not spell. (R. 43-44.)
Plaintiff testified that he saw a therapist for depression and anxiety. (R. 49.) When asked how his depression and anxiety affected his work, Plaintiff responded, “Honestly, not so much.” (Id.) He stated that his depression stemmed from his learning disability, which prevented him from doing a lot of things and doing more for his son. (Id.) Plaintiff stated that he felt depression symptoms when he had difficulty helping his son with his homework due to his learning disability. (R. 56.) He stated that he isolated from people and had times when he would just stay inside for a week or so. (Id.) Plaintiff stated that he was getting better at concentrating on simple tasks and had to concentrate to avoid fidgeting. (R. 56-57.)
Plaintiff lived in a friend's apartment, where he slept on the couch. (R. 49.) He stated that he barely did cooking and cleaning, ate his friend's food, and did not have a driver's license because of his dyslexia, but he was able to do his own grocery shopping and use trains and buses. (R. 49, 51.)
B. Vocational Expert Testimony
Vocational Expert (“VE”) Christine Ditrinco testified at the May 10, 2019 hearing. (R. 6872.) The ALJ asked the VE to consider a hypothetical individual of Plaintiff's age, education and work experience who was limited to sedentary work, and was otherwise limited as follows: he could occasionally use ramps and stairs; he could occasionally climb, stoop, balance, kneel, crouch and crawl; he could not work on ladders, ropes or scaffolds, nor on slippery or uneven surfaces nor at unprotected heights or around dangerous machinery; he is limited to simple and routine work, not at a production-rate pace, and can only interact with and react appropriately on an occasional basis with supervisors, coworkers and the general public. (R. 70.) In response, the VE opined that such a person could perform assembly-type jobs where the worker sets the pace such as the unskilled sedentary job of bench hand, Department of Labor, Dictionary of Occupational Titles (4th ed. 1991 rev'd) (“DOT”) Job Code No. 715.684-026, of which there were 10,723 jobs nationally; the sedentary job of assembler, DOT Job Code No. 734.687-018, of which there were 16,452 jobs nationally; and the sedentary job of file assembler, DOT Job Code No. 713.687-018, of which there were 10,172 jobs nationally. (R. 70-71.) The VE also testified that an individual who was off task outside of regularly scheduled breaks more than fifteen percent of the workday or an individual who missed more than one day per week would be deemed unable to work. (R. 71.)
V. ALJ Carlton's Decision
Applying the Commissioner's five-step sequential evaluation, see infra Legal Standards Section II, at step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her application date in October 2017. (R. 12.) At step two, the ALJ determined that the following impairments were severe: mild straightening of lumbar curvature; mild redundancy of the anterolateral meniscal root of the left knee; patella alta variant with mild narrowing of the lateral patellofemoral compartment of right knee; bone spurs of right foot; depressive disorder; panic disorder with agoraphobia; ADHD; and a learning disability. (Id.)
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 13.) With respect to Plaintiff's mental impairments, the ALJ considered Listings 12.03 (Schizophrenia Spectrum and Other Psychotic Disorders), 12.05 (Intellectual Disorder), and 12.08 (Personality and Impulse-Control Disorders). (Id.) The ALJ found that “[t]he severity of the claimant's mental impairments, considered singly and in combination, do not meet or medically equal the criteria of listings 12.03, 12.05, and 12.08.” (Id.)
The ALJ considered the “paragraph B” criteria, and found that Plaintiff had moderate limitations in understanding, remembering or applying information; interacting with others; and concentrating, persisting or maintaining pace; and a mild limitation in adapting or managing oneself. (R. 13-14.) The ALJ opined that, because Malone's mental impairments did not cause at least two “marked” limitations or one “extreme” limitation, the “paragraph B” criteria were not satisfied. (R. 14.) The ALJ also found that, for Listing 12.03, the “paragraph C” criteria were not satisfied. (Id.)
Turning back to Listing 12.05, the ALJ considered whether either the “paragraph A” or “paragraph B” criteria for that listing were satisfied. (R. 14-15.) The ALJ found that the paragraph A criteria were not satisfied because Malone did not have significant deficits in adaptive function manifested by depended on other for personal needs. (R. 15.) He also found that “paragraph B” criteria were not satisfied because Malone did not have a significantly subaverage level of general intellectual functioning (evidence by an IQ score of 70 or below or a full scale IQ score of 71-75 accompanied by a verbal or performance IQ score of 70 or below) and did not have an extreme limitation of one, or a marked limitation of two, of the four mental functioning domains, as set forth above. (R. 15.)
The ALJ then assessed Plaintiff's Residual Functional Capacity (“RFC”), determining, with respect to Plaintiff's mental impairments, that he was able to occasionally interact with supervisors, co-workers, and the general public and further was limited to a simple routine without a production rate pace. (R. 15-16.) The ALJ found the opinion of Dr. Carr to be generally persuasive and “supported by the overall medical record finding the claimant has mild to moderate difficulties but can perform his activities of daily living, is consistent with the opinions of medical professionals in the record.” (R. 18.) The ALJ found the July 31, 2018 opinion of Dr. Rameshwar and NPP Baumann to be somewhat persuasive; however, the ALJ noted that neither Dr. Rameshwar nor NPP Baumann appeared to be listed on any treatment records. (R. 19.) The ALJ found the January 28, 2020 opinion of Dr. Rameshwar and NPP Tigenoah to be unpersuasive given the normal psychiatric reports between March and December 2019. (R. 20.) The ALJ further found the 2014 opinion of Dr. Khadivi to be unpersuasive because the background information taken on Malone was inconsistent with the record. (Id.)
At step five, the ALJ considered Plaintiff's age, education and job skills, along with his RFC determination and the VE testimony, and concluded that Plaintiff could perform the unskilled, sedentary jobs of bench hand (DOT 715.684-026), assembler (DOT 734.687-018) and final assembler (DOT 713.687-018). (R. 21-22.) Thus, the ALJ concluded that Malone was not disabled. (R. 22.)
LEGAL STANDARDS
I. Standard Of Review
A motion for judgment on the pleadings should be granted if it is clear from the pleadings that “the moving party is entitled to judgment as a matter of law.” Burns Int'l Sec. Servs., Inc. v. Int'l Union, United Plant Guard Workers of Am., Local 537, 47 F.3d 14, 16 (2d Cir. 1995) (citing Fed.R.Civ.P. 12(c)). In reviewing a decision of the Commissioner, a court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
“The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence.” Ulloa v. Colvin, No. 13-CV-04518 (ER), 2015 WL 110079, at *6 (S.D.N.Y. Jan. 7, 2015) (citing Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)). “Even if the Commissioner's decision is supported by substantial evidence, legal error alone can be enough to overturn the ALJ's decision[.]” Id.; accord Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). A court must set aside legally erroneous agency action unless “application of the correct legal principles to the record could lead only to the same conclusion,” rendering the errors harmless. See Garcia v. Berryhill, No. 17-CV-10064 (BCM), 2018 WL 5961423, at *11 (S.D.N.Y. Nov. 14, 2018) (quoting Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)).
Absent legal error, the ALJ's disability determination may be set aside only if it is not supported by substantial evidence. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (vacating and remanding ALJ's decision). “Substantial evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). However, “[t]he substantial evidence standard is a very deferential standard of review-even more so than the clearly erroneous standard, and the Commissioner's findings of fact must be upheld unless a reasonable factfinder would have to conclude otherwise.” Banyai v. Berryhill, 767 Fed.Appx. 176, 177 (2d Cir. 2019), as amended (Apr. 30, 2019) (summary order) (citation and internal quotation marks omitted). If the findings of the Commissioner as to any fact are supported by substantial evidence, those findings are conclusive. See Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995).
II. Determination Of Disability
A person is considered disabled for benefits purposes when she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months ....” 42 U.S.C. § 1382c(a)(3)(A).
[A]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § 1382c(a)(3)(B).
In determining whether an individual is disabled, the Commissioner must consider: “(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 v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam) (citations omitted).
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims:
(i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled.
(ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 416.909, or a combination of
impairments that is severe and meets the duration requirement, we will find that you are not disabled.
(iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in appendix 1 to subpart P of part 404 of this chapter and meets the duration requirement, we will find that you are disabled.
(iv) At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled.
(v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled.20 C.F.R. § 416.920(a)(4) (internal citations omitted).
“When determining whether a claimant is disabled due to a mental impairment, an ALJ must apply a ‘special technique' at the second and third steps of the five-step framework.” Cherry v. Comm'r of Soc. Sec., No. 17-CV-07999 (VEC), 2019 WL 1305961, at *11 (S.D.N.Y. Mar. 22, 2019) (quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)). First, the ALJ must determine if the claimant has a “medically determinable mental impairment.” Id. If the claimant is found to have such an impairment, the ALJ must rate the degree of functional limitation, across four broad functional areas: (1) understand, remember or apply information; (2) interact with others; (3) concentrate, persist or maintain pace; and (4) adapt or manage oneself. See 20 C.F.R. § 416.920a(b)(3).
If the claimant is found to have a severe impairment not listed in the Appendix, then, at steps four and five, the ALJ must assess the claimant's mental RFC to determine whether the claimant can meet the mental demands of past relevant work in spite of the limiting effects of his impairment and, if not, whether the claimant can do other work, considering his remaining mental capacities and his occupational base, age, education, and work experience. See 20 C.F.R. § 416.920a(d)(3); SSR 85-15, 1985 WL 56857 (S.S.A.), at *4.
The claimant bears the burden of proof as to the first four steps. See Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). It is only after the claimant proves that he cannot return to work that the burden shifts to the Commissioner to show, at step five, that other work exists in the national and local economies that the claimant can perform, given the claimant's RFC, age, education and past relevant work experience. Id. at 51-52.
III. Regulations Regarding Consideration Of Medical Opinions And Prior Findings For Applications Filed On Or After March 27, 2017
Previously, the SSA followed the “treating physician rule,” which required the agency to give controlling weight to a treating source's opinion so long as it was “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and “not inconsistent with the other substantial evidence” in the record. 20 C.F.R. § 416.927(c)(2). However, the regulations relating to the evaluation of medical evidence were amended for disability claims filed after March 27, 2017. Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed.Reg. 5844-01, at *5844 (Jan. 18, 2017). Because Plaintiff's claim was filed on October 18, 2017, the new regulations, codified at 20 C.F.R. § 416.920c, apply. See Jacqueline L. v. Comm'r of Soc. Sec., 515 F.Supp.3d 2, 7 (W.D.N.Y. 2021).
Under the new regulations, the Commissioner no longer will “defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources.” 20 C.F.R. § 416.920c(a). Instead, when evaluating the persuasiveness of medical opinions, the Commissioner will consider the following five factors: (1) supportability; (2) consistency; (3) relationship of the source with the claimant, including length of the treatment relationship, frequency of examination, purpose of the treatment relationship, extent of the treatment relationship and whether the relationship is an examining relationship; (4) the medical source's specialization; and (5) other factors, including but not limited to “evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of [the SSA] disability program's policies and evidentiary requirements.” Id. § 416.920c(c). Using these factors, the most important of which are supportability and consistency, the ALJ must articulate “how persuasive [he] find[s] all of the medical opinions and all of the prior administrative medical findings in [the claimant's] case record.” Id. § 416.920c(b).
With respect to the supportability factor, the regulations provide that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” Id. § 416.920c(c)(1). As to the consistency factor, the regulations provide that “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id. § 416.920c(c)(2). While the ALJ “may, but [is] not required to, explain how [he] considered” the factors of relationship with the claimant, the medical source's specialization, and other factors, the ALJ “will explain how [he] considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings.” Id. § 416.920c(b)(2).
IV. Duty to Develop the Record
Because social security proceedings are “essentially non-adversarial,” the ALJ has an affirmative duty to develop the record. See Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009) (internal citation omitted); see also Rosa, 168 F.3d at 79 (“[W]here there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history.”). An ALJ “must ensure that “[t]he record as a whole [is] complete and detailed enough to allow the ALJ to determine the claimant's residual functional capacity.” Casino-Ortiz v. Astrue, No. 06-CV-00155 (DAB) (JCF), 2007 WL 2745704, *7 (S.D.N.Y. Sept. 21, 2007).
DISCUSSION
Plaintiff argues that remand is required because: (1) the ALJ failed to properly consider the opinions of his treating psychiatrist, and (2) the ALJ failed to properly consider his learning disability. (Pl.'s Mem., ECF No. 23, at 15-22.) For the reasons set forth below, the Court finds that the ALJ's decision is free of legal error and supported by substantial evidence.
First, Plaintiff argues that the ALJ failed to properly consider the two opinions of Dr. Rameshwar, particularly regarding Plaintiffs' monthly absences. (Pl.'s Mem. at 15-19.) In July 2018, Dr. Rameshwar and NPP Baumann opined that Plaintiff on average would be absent from work about three times a month due to his impairments. (R. 581.) In January 2020, Dr. Rameshwar and NPP Tigenoah opined that Plaintiff would miss more than three days per month of work due to his impairments. (R. 716.) The ALJ stated in his decision that he found the July 2018 opinion to be “somewhat persuasive,” expressly acknowledging the portion of the opinion that “the claimant would miss work about three times a month.” (R. 19.) The ALJ found that the opinion was consistent with Plaintiff's allegations but only “slightly supported by the above-cited record,” citing to the consultative examination of Dr. Carr, which he had found “generally persuasive.” (See id. (citing R. 623-24).) The ALJ found the January 2020 opinion to be “unpersuasive” finding that it was not supported by Plaintiff's more recent treatment records and inconsistent with treatment notes and the hearing testimony. (R. 20.)
Although the ALJ did not fully incorporate the foregoing opinions into his RFC, he considered the required factors in explaining how persuasive he found the opinions and specifically discussed the issue of absenteeism. See Mota v. Comm'r of Soc. Sec., No. 20-CV-07294 (SN), 2022 WL 464098, at *11 (S.D.N.Y. Feb. 15, 2022) (finding no issue with ALJ's consideration of plaintiff's potential absences when two medical opinions concluding plaintiff would be absent more than once a month properly were found unpersuasive). In reaching an RFC determination, the ALJ was entitled to give more weight to the opinion of Dr. Carr, who found a mild to moderate limitation in Plaintiff's ability to sustain an ordinary routine and regular attendance at work. See Perozzi v. Berryhill, 287 F.Supp.3d 471, 492 (S.D.N.Y. 2018) (ALJ properly could conclude one physician's findings were inconsistent with those of other physicians, and it “was within the ALJ's discretion to resolve such conflicts between medical opinions in the manner he did”) (citing Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998)); see also Andrea G. v. Comm'r of Soc. Sec., No. 20-CV-01253 (TWD), 2022 WL 204400, at *8 (N.D.N.Y. Jan. 24, 2022) (citing Heaman v. Berryhill, 765 Fed.Appx. 498, 500 (2d Cir. 2019)).
Accordingly, the Court finds this case distinguishable from other cases cited by Plaintiff where the ALJ did not address evidence of absenteeism. See, e.g., Guzman v. Comm'r of Soc. Sec., No. 20-CV-07420 (JMF) (SDA), 2022 WL 2325908, at *10 (S.D.N.Y. June 10, 2022), report and recommendation adopted, 2022 WL 2316643 (S.D.N.Y. June 28, 2022) (“ALJ's failure to address the issue of how much time Plaintiff would miss in a month based on his ailments, and the VE's testimony that only one absence a month would be tolerated, was legal error”).
Moreover, the ALJ limited Plaintiff to simple, routine work, which courts have found adequately accounts for moderate limitations in maintaining a schedule and regular attendance. See, e.g., Becky Sue H. v. Comm'r of Soc. Sec., No. 20-CV-0835 (BKS) (ML), 2021 WL 7367082, at *9 (N.D.N.Y. Dec. 15, 2021) (citing cases), report and recommendation adopted, 2022 WL 304518 (N.D.N.Y. Feb. 2, 2022). The fact that other evidence in the record could support greater limitations is of no moment. As the Commissioner points out, “the question is not whether [plaintiff] has pointed to evidence - even substantial evidence - to support his position, because even if we find substantial evidence supporting the claimant's position, we still must uphold the ALJ's decision if substantial evidence supports the ALJ's decision.” (Comm'r Mem., ECF No. 27, at 18 (quoting Lau v. Comm'r of Soc. Sec., 339 F.Supp.3d 421, 431 (S.D.N.Y. 2018)); see also McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld.”).
Next, Plaintiff argues that, despite finding his learning disability to be a severe impairment, the ALJ failed to develop the record to determine the full extent of his learning disability on his RFC. (Pl.'s Mem. at 19-22.) Plaintiff suggests that the ALJ should have ordered another consultative examination regarding his learning disability. (Id. at 20-21.) The applicable regulations provide that a consultative examination may be warranted where the record does not contain sufficient clinical findings, laboratory tests, diagnosis and prognosis necessary to assess a claim. 20 C.F.R. § 416.919a(b). Consultative examinations also may be warranted where there is a conflict or inconsistency in the record. Id. However, where the record contains sufficient information on which to base a decision, a consultative examination is not required. See Tankisi v. Comm'r of Soc. Sec., 521 Fed.Appx. 29, 32 (2d Cir. 2013).
Here, Plaintiff does not identify any gaps in the record that another consultative examination was necessary to fill. Indeed, the ALJ considered evidence regarding Plaintiff's learning disability and intellectual functioning, including intelligence testing from 2014, and discussed evidence regarding his borderline intellectual functioning, word-finding difficulties and receptive language skills in determining his RFC. (R. 16-20.) Plaintiff contends that there was conflicting evidence regarding the impact of his dyslexia on his ability to perform jobs at Language Level 1. (Pl.'s Mem. at 21-22.) However, Plaintiff testified that he could read at approximately a fourth-grade level and intelligence testing from 2014 assessed his “word reading” to be equivalent to grade 3.7. (R. 43, 722.) Thus, despite Plaintiff's assertion, there is substantial evidence in the record to support the ALJ's determination that Plaintiff could perform simple work requiring Level 1 language skills, the lowest level in the DOT. See, e.g., Fortuna v. Saul, No. 19-CV-11066 (JCM), 2021 WL 961798, at *31 (S.D.N.Y. Mar. 15, 2021) (“Although not stated in the D.O.T., courts have noted that Language Level 1 corresponds with a third grade reading level.”). Accordingly, the Court finds that the ALJ did not err in failing to further develop the record. See Miller v. Comm'r of Soc. Sec., 409 Fed.Appx. 384, 387-88 (2d Cir. 2010) (rejecting argument that ALJ failed to develop record when plaintiff did not describe what aspects were lacking and record contained various medical and educational reports bearing upon plaintiff's learning disability and ADHD); Helwig v. Comm'r of Soc. Sec., No. 17-CV-00859 (WBC), 2018 WL 6330242, at *3 (W.D.N.Y. Dec. 4, 2018) (ALJ did not abuse discretion in declining to order consultative intelligence examination when no inconsistencies in record and evidence in record sufficient to make determination).
The Court notes thar Dr. Carr did indicate in her consultative examination report that intellectual disability should be ruled out and that Plaintiff could benefit from an intellectual assessment. (R. 625.) However, as set forth below, the record before the ALJ contained intellectual testing from 2014 upon which the ALJ relied.
Plaintiff argues that the ALJ improperly dismissed this evaluation as “unpersuasive.” (Pl.'s Mem. at 20-21.) However, despite finding the opinion of the examiners unpersuasive, the ALJ relied upon the testing results as evidence of Plaintiff's IQ score and borderline functioning and favorably cited the report's diagnostic impressions. (R. 15, 17.)
CONCLUSION
For the reasons set forth above, I respectfully recommend that Plaintiff's motion for judgment on the pleadings be DENIED and the Commissioner's cross-motion be GRANTED.
SO ORDERED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) 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. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). 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). Any requests for an extension of time for filing objections must be addressed to Judge Daniels.
FAILURE TO OBJECT WITHIN FOURTEEN (14) 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. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).