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recognizing continued force of Tankisi but remanding, among other reasons, because record was not sufficient without medical source statements from claimant's treating physicians
Summary of this case from Ayala v. KijakaziOpinion
Civil Action 20 Civ. 3765 (VEC) (SLC)
10-27-2021
JOHN MANZELLA, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE VALERIE E. CAPRONI, United States District Judge:
I. INTRODUCTION
Plaintiff John Manzella (“Mr. Manzella”) commenced this action pursuant to Section 205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. § 405(g). Mr. Manzella seeks review of the decision by the Commissioner (the “Commissioner”) of the Social Security Administration (“SSA”), denying his application for Disability Insurance Benefits (“DIB”) under the Act. Mr. Manzella contends that the decision of the Administrative Law Judge dated April 10, 2019 (the “ALJ Decision”) was erroneous, not supported by substantial evidence, and contrary to law, and asks the Court to (a) reverse the Commissioner's finding that he was not disabled and remand to the Commissioner for an award of DIB benefits, or (b) remand for a new hearing. (ECF No. 1).
The parties have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). On March 1, 2021, Mr. Manzella filed a motion for judgment on the pleadings (ECF No. 18 (“Mr. Manzella's Motion”)), and on June 15, 2021, the Commissioner cross- moved (ECF No. 24 (the “Commissioner's Motion”)). For the reasons set forth below, I respectfully recommend that Mr. Manzella's Motion be GRANTED, the Commissioner's Motion be DENIED, and the case be remanded to the ALJ for further development of the record.
II. BACKGROUND
A. Procedural Background
On August 14, 2017, Mr. Manzella filed an application for DIB, alleging a disability onset date of July 31, 2017 due to bilateral hand pain and immobility, high cholesterol, high blood pressure, and back problems. (Administrative Record (ECF No. 16) (“R.”) 167-97). On October 4, 2017, the SSA denied Mr. Manzella's application. (R. 71-75). Mr. Manzella requested a hearing before an ALJ. (R. 76). On March 7, 2019, ALJ Vincent M. Cascio conducted an in-person hearing in White Plains, New York (the “ALJ Hearing”). (R. 33-58, 128). Mr. Manzella was represented at the hearing by a non-attorney representative. (R. 35). On April 10, 2019, ALJ Cascio issued the Decision finding that Mr. Manzella was not disabled under the Act. (R. 13-22). Mr. Manzella timely requested that the Appeals Council review the ALJ Decision, which became the final decision of the Commissioner when the Appeals Counsel denied review. (R. 1-5; 163-66).
B. Factual Background
1. Non-medical evidence
Mr. Manzella was born in 1958 and was 59 years old on the alleged onset date, July 31, 2017. (R. 38, 60, 167). He received his high school diploma. (R. 39).
Mr. Manzella's work experience includes his tenure from 1984 to 2004 as an officer with the New York City Police Department (“NYPD”), from which he retired at the rank of detective. (R. 42, 206). His roles spanned from patrol to plain-clothes detail and he investigated felony cases. (R. 211). Mr. Manzella was a first responder following the terrorist attacks of September 11, 2001 (“9/11”). (See R. 331, 352). He walked, stood, sat, and wrote for two hours each day. (Id.)
From September 2009 to July 2017, Mr. Manzella worked a variety of jobs, including as a security supervisor, a plant operation mechanic for a hospital, a steamroller driver for a paving company, and a private investigator. (R. 39-41, 66-67, 168, 206-10). In these positions, he did varying amounts of sitting, walking, standing, writing, lifting, and carrying. (R. 39-41, 66-67, 168, 206-10).
He stopped working altogether because of his medical conditions, on July 31, 2017. (R. 37, 191).
2. Medical evidence
Mr. Manzella has submitted a summary of the medical evidence (ECF No. 19 at 11-18), which the Commissioner adopts. (ECF No. 25 at 3). The Court summarizes the medical evidence relevant to the ALJ Decision and the Court's review.
a. DIB Application & Function Report
Mr. Manzella's claim for DIB was based on the following alleged impairments: (i) pain, restricted range of motion and difficulty gripping and grasping, numbness, immobility, and surgery to both hands; (ii) back pain; (iii) high cholesterol; and (iv) high blood pressure. (R. 6061, 191).
In Mr. Manzella's the function report (the “Function Report”), he described having “bilateral hand, wrist, [and] arm pain that causes cramping and stiffness, ” such that “[a]t times” he was unable “to bend [his] fingers and wrist.” (R. 198). His daily activities included light housework, watching television, and taking short walks. (Id.) He stated that he was no longer able to grip or lift, had difficulty buttoning and tying his shoes, had difficulty cleaning himself, and was able to feed himself, but described his hands “sometimes lock[ing] up” during personal care tasks. (R. 199). His fiance prepared his meals because it was “difficult [and] painful to lift pots and pans, ” and open containers. (R. 200). Mr. Manzella wrote that he left the house almost every day, and was able to walk, drive, and go out alone. (R. 201). He described having a “diminished ability to lift heavy things, ” occasional problems gripping the stair railing, and problems “holding” and “gripping.” (R. 203).
b. Adam Carpentieri, M.D. - Treating Physician
Adam Carpentieri, M.D., was Mr. Manzella's treating physician for over ten years. (R. 195). In a January 26, 2017 examination, Dr. Carpentieri observed “mild contracture” to the fourth fingers of both of Mr. Manzella's hands, as well as paresthesia in the left hand that did not change with movement. (R. 246-47). Dr. Carpentieri prescribed Avalide, Lipitor and Celebrex for Mr. Manzella's hypertension, hyperlipidemia and osteoarthritis, respectively. (R. 247). Dr. Carpentieri observed that a November 2016 MRI showed heterogeneous hypercellularity in his bone marrow. (R. 248). Dr. Carpentieri referred Mr. Manzella for neurological and orthopedic evaluations for his hands. (R. 248).
Hypercellularity is “the presence of an abnormal excess of cells.” Hypercellularity, Merriam-Webster, https://www.merriam-webster.com/medical/hypercellularity (last visited Oct. 26, 2021).
On July 26, 2017, Mauro Gasparini, M.D. again observed “mild contracture” to the fourth fingers on both hands and abnormal paresthesia to the left hand. (R. 251). Dr. Gasparini prescribed Irbesartan for hypertension, and continued the Celebrex prescription for arthritis. (Id.)
c. Hang K. Park, M.D., Health Quest - Treating Physician
From December 2017 until January 2019, Hang K. Park, M.D., examined Mr. Manzella for several complaints, including hypertension, pain in both wrists, trigger finger in both hands, bone marrow disorder, and back pain. (R. 300-01).
On December 13, 2017, Dr. Park examined Mr. Manzella, as a new patient, for a routine physical. (R. 322). Dr. Park assessed Mr. Manzella as having: gastroesophageal reflux disease (“GERD” or “heartburn”) without esophagitis; left and right wrist pain; hypertension; dyslipidemia; fatigue; and thyroid enlargement. (R. 323). Dr. Park refilled Mr. Manzella's prescription for Irbesartan hydroclorothiazide for hypertension, and for Atorvastatin for dyslipidemia. (Id.) A subsequent ultrasound found that Mr. Manzella's right thyroid was “slightly prominent” but “without any focal nodules.” (R. 327).
On January 3, 2018, Dr. Park examined Mr. Manzella regarding complaints of abdominal pain and wrist pain. (R. 318). Dr. Park assessed Mr. Manzella as having GERD without esophagitis, for which he changed the prescription from Omeprazole to Ranitidine. (R. 320). For the pain in his left wrist, Dr. Park prescribed Tramadol. (Id.) Dr. Park refilled the prescriptions for Irbesartan Hydrocholorthiazide (hypertension) and Atorvastatin (dyslipidemia), and prescribed vitamin B12. (Id.) Dr. Park also noted that Mr. Manzella was prediabetic. (Id.)
On July 20, 2018, Dr. Park examined Mr. Manzella regarding complaints about heartburn and chronic hand pain. (R. 306). Dr. Park referred Mr. Manzella to a gastroenterologist for heartburn, to a cardiologist for the regurgitation and possible heart disease, and to a hematologist for the bone marrow disorder, directed him to continue Irbesartan-Hydrochlorothiazide for hypertension, directed him to continue Atorvastatin calcium for dyslipidemia, and referred him to a pain specialist for his wrist pain. (R. 310-11). A September 2018 echocardiogram was normal. (R. 328).
The cardiologist to whom Mr. Manzella was referred, Anthony Messina, M.D., examined him on September 5, 2018, September 27, 2018, and October 31, 2018, and found that he had benign essential hypertension, coronary artery disease (“CAD”) in his native artery, moderate left anterior descending artery (“LAD”) disease, and a five-centimeter nodule on his right lung. (R. 331-33). During the September 27, 2018 visit, Dr. Messina found his echocardiogram normal and his stress test noting no ischemia, and prescribed lifestyle changes and more activity. (R. 428, 448-52). On October 31, 2018, Dr. Messina directed him to start alcohol septal ablation (“ASA”), and continue his statin and blood pressure medications. (R. 332).
Coronary artery disease “is caused by plaque buildup in the wall of the arteries that supply blood to the heart.” Coronary Artery Disease (CAD), CENTERS FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/heartdisease/coronary ad.htm (last visited Oct. 26, 2021). The left anterior descending artery or LAD “branches off the left coronary artery and supplies blood to the front of the left side of the heart.” Coronary Heart Disease, JOHNS HOPKINS MEDICINE, https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronary-heart-disease (last visited Oct. 26, 2021).
AsA “is a non-surgical procedure to treat hypertrophic cardiomyopathy, ” which “is an inherited condition in which [the] heart muscle is abnormally thick.” Alcohol Septal Ablation, JOHNS HOPKINS MEDICINE, https://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/alcohol-septal-ablation (last visited oct. 26, 2021). it involves injecting alcohol through a catheter into the heart muscle to improve blood flow. Id.
On December 26, 2018, Dr. Park examined Mr. Manzella regarding his complaints about lower back pain. (R. 304). Dr. Park diagnosed Mr. Manzella has having backache symptoms and a bone marrow disorder, heterogenous marrow hypercellularity, and prescribed Tramadol and Tizanidine. (R. 30-05). An X-ray that same day found “[n]o high grade compression deformity or listhesis in the lumbar spine.” (R. 330).
On January 3, 2019, Dr. Park examined Mr. Manzella regarding his complaints about back pain. (R. 302). Dr. Park diagnosed acute bilateral low back pain without sciatica, refilled Mr. Manzella's prescription for Tramadol, continued his prescription for Tizanidine, and added a prescription for Meloxicam. (R. 303).
d. Stuart Jay Elkowitz, M.D. - Treating Physician
On August 16, 2017, Stuart Jay Elkowitz, M.D., a hand surgeon, saw Mr. Manzella, who complained of bilateral hand and wrist pain and described having had open reduction and internal fixation surgery (“ORIF”) in 1998 and 2005. (R. 259). Dr. Elkowitz diagnosed bilateral Dupuytren's contracture, trigger finger, and wrist pain. (R. 261). Dr. Elkowitz discussed with Mr. Manzella the treatments for Dupuytren's, both operative and nonoperative, and Mr. Manzella chose a cortisone injection for his right hand and to explore surgery for his left side. (Id.)
ORIF surgery involves the repair of broken bones using hardware such as plates, screws, or wires. Dan Brennan, M.D., What Is ORIF Surgery?, WEBMD (May 20, 2021), https://www.webmd.com/a-to-z-guides/what-is-orif-surgery.
On March 19, 2018, at Mr. Manzella's request, Dr. Elkowitz administered a second cortisone injection in his right hand. (R. 281). Mr. Manzella elected to undergo surgery for his left hand. (Id.)
On May 4, 2018, Dr. Elkowitz performed surgery on Mr. Manzella's left hand. (R. 283). The surgical procedures were: subtotal palmar fasciectomy, ring trigger finger release, and middle trigger finger release. (Id.) On May 9, 2018, five days post-surgery, Mr. Manzella described having feeling, with some tingling, in his left ring finger. (R. 285). Dr. Elkowitz removed the dressing, observed “improved abduction, ” but continued stiffness that prevented Mr. Manzella from making a fist. (R. 286-87). Dr. Elkowitz continued the diagnosis of Dupuytrens' contracture and trigger finger in the ring and middle fingers on the left hand, and prescribed range of motion exercises and physical therapy. (R. 287).
On May 16, 2018, Dr. Elkowitz saw Mr. Manzella twelve days post-surgery. (R. 288). Dr. Elkowitz observed that Mr. Manzella could “make a full composite fist now without any triggering, ” and noted that Mr. Manzella reported being diligent about doing his home exercises. (R. 288-89).
On June 6, 2018, Dr. Elkowitz saw Mr. Manzella five weeks post-surgery. (R. 291). Mr. Manzella reported being “happy with his motion but complain[ed] of hypersensitivity.” (Id.) Dr. Elkowitz observed that Mr. Manzella could “make a full composite fist and fully extend all digits, ” and had “significantly improved abduction of the [third] webspace compared to his preoperative exam.” (R. 293). To address the “hypersensitivity and firmness around his scars, ” Dr. Elkowitz prescribed Medrol and continued home exercises. (Id.)
On June 27, 2018, Dr. Elkowitz saw Mr. Manzella eight weeks post-surgery. (R. 294). Mr. Manzella reported that he was “very happy with the restoration of motion in the left hand” and did not experience numbness, but still complained of scar sensitivity and locking in his middle right finger. (R. 294). Dr. Elkowitz prescribed continued therapy for the left hand, and administered a cortisone injection for the right middle trigger finger. (R. 296). Manzella decided to proceed with surgery on his right hand, specifically, right middle and ring trigger finger release and a right hand Depuytren's excision. (R. 299).
On January 14, 2019, Lori Gail Weiser, M.D., a colleague of Dr. Elkowitz, examined Mr. Manzella regarding his lower back pain. (R. 393). She assessed him as having low back pain “likely secondary to facet arthropathy/stenosis” without radiculopathy, and advised him to modify his activities, perform home exercises, participate in physical therapy, take over-the-counter NSAIDS, and continue taking a muscle relaxant at night. (R. 394-95).
On February 6, 2019, Mr. Manzella reported to Dr. Elkowitz that his right middle finger was becoming more stiff, but was not numb. (R. 389). After consultation, Mr. Manzella elected to proceed with right middle finger and right ring finger trigger finger release surgery and excision of the fascial cord in to treat the Dupuytren's disease in his right hand. (R. 392). There are no records from this surgery, but Mr. Manzella testified that it occurred on February 15, 2019. (R. 43).
e. Care Medical - Treating Physicians
On July 31, 2018, Jason Rubin, M.D., examined Mr. Manzella regarding complaints about fatigue and low back pain. (R. 352). Dr. Rubin referred to an August 2016 MRI that revealed the bone marrow disorder, heterogeneous marrow hypercellularity, for which Mr. Manzella had seen a hematologist. (Id.) Dr. Rubin noted that a September 2016 JAK2 mutational analysis was negative. (Id.). Dr. Rubin did not observe any issues with Mr. Manzella's hands or wrists. (R. 353).
The JAK2 gene “plays a significant role in the production of red blood cells, ” and mutation in the JAK2 gene can lead to “overproduction of red blood cells, and at times, white blood cells and platelets.” PolycythemiaVera, JOHNS               HOPKINS               MEDICINE, https://www.hopkinsmedicine.org/kimmel cancer center/cancers we treat/bone marrow failure dis orders/polycythemia vera.html (last visited Oct. 26, 2021).
f. Rita Figueroa, M.D., Industrial Medical Associates, PC - Consulting Examiner
On September 11, 2017, Rita Figueroa, M.D. examined Mr. Manzella and provided a medical opinion as to his conditions. (R. 262-66). Mr. Manzella told Dr. Figueroa that he sustained bilateral injuries to both wrists in 1988 and 2005. (R. 262). Dr. Figueroa diagnosed Mr. Manzella as having “de Quervain's” syndrome “in both hands, which is symptomatically worse in the evening, ” for which he was treated with cortisone injections to the right hand. (R. 262, 265). Mr. Manzella reported making adaptive changes in his home, such as replacing doorknobs with handles and using electric appliances. (R. 262). Dr. Figueroa reviewed an X-ray of his left hand-his dominant hand-which showed that he had undergone ORIF surgery and that he had “flexion deformities.” (R. 262, 265).
“De Quervain's” tenosynovitis “is a painful condition affecting the tendons on the thumb side of [the] wrist.” De Quervain's tenosynovitis, MAYO CLINIC, https://www.mayoclinic.org/diseases-conditions/de-quervains-tenosynovitis/symptoms-causes/syc-20371332 (last visited Oct. 26, 2021). Dr. Schwartz, as well as Dr. Figueroa and ALJ Cascio appear to have mistakenly labeled Mr. Manzella's condition as De Quervain's syndrome, (R. 15, 42; see ECF No. 19 at 10 n.3), when, as discussed further below (see § IV.C.1 infra), Mr. Manzella's treatment records refer only to Depuytren's contracture, which “is a hand deformity that usually develops over years” and “affects a layer of tissue that lies under the skin of [the] palm. Knots of tissue form under the skin - eventually creating a thick cord that can pull one or more fingers into a bent position.” Dupuytren's contracture, MAYO CLINIC, https://www.mayoclinic.org/diseases-conditions/dupuytrens-contracture/symptoms-causes/syc-20371943 (last visited Oct. 26, 2021). Its causes are unknown. Id.
Dr. Figueroa also observed cervicalgia with bilateral neck stiffness that was worse on Mr. Manzella's left side. (R. 262). She reviewed Mr. Manzella's August 31, 2016 MRI, which showed “broad-based right foraminal disc ridge complex without foraminal stenosis” at ¶ 3-C4, a “moderate sized broad-based disc protrusion” at ¶ 5-C6, and a “moderate sized left paracentral disc ridge complex” at ¶ 6-C7. (Id.) She noted that the MRI also showed heterogeneous bone marrow with hypercellularity, for which Mr. Manzella had been recommended to undergo a bone marrow biopsy. (Id.)
Cervicalgia is neck pain. Alana Biggers, M.D., MPH, What is cervicalgia and how is it treated?, MEDICAL NEWS TODAY, (Nov. 13, 2017), https://www.medicalnewstoday.com/articles/320001.
Dr. Figueroa noted that Mr. Manzella was then taking Celecoxib, Irbesartan/hydrocholorothiazide, Atorvastatin, and Tramadol. (R. 263). She noted that he did cleaning twice a week, light cooking, shopping once a week, and bathed and dressed every day. (Id.) Dr. Figueroa observed that Mr. Manzella had “full flexion, extension, lateral flexion bilaterally, and full rotary movement bilaterally” in his cervical spine and in his lumbar spine. (Id.) She documented that Mr. Manzella was unable to make a grip with his left hand, but could with his right and was able to zipper, button, and tie. (R. 265).
Dr. Figueroa wrote “The right hand was not able to make a grip[, ]” but she appears to have marked an “X” through “not, ” such that the Court interprets her to have said, “The right hand was able to make a grip.” (R. 265).
Dr. Figueroa opined that Mr. Manzella's prognosis was “fair” and that he would “have a moderate limitation to activities in gripping and mild limitation to activities requiring fine motor skills.” (R. 265).
g. E. Schwartz, M.D. - Consulting Examiner
On October 2, 2017, E. Schwartz, M.D., conducted a consultative examination for purposes of Mr. Manzella's DIB application. (R. 60-69). Dr. Schwartz listed his area of medical expertise as psychiatry. (R. 66). Dr. Schwartz did not examine Mr. Manzella himself, and appears to have relied exclusively on Dr. Figueroa's single examination of Mr. Manzella, which he quoted at length. (R. 61, 63, 65). Dr. Schwartz labeled Mr. Manzella's impairments as severe “disorders of muscle, ligament and fascia, ” “essential hypertension, ” and “spine disorders, ” and noted that Mr. Manzella experienced symptoms of pain, loss of sensation, and weakness. (R. 63). Dr. Schwartz opined that one or more of Mr. Manzella's impairments could reasonably be expected to produce those symptoms, which were substantiated by the objective medical evidence alone. (Id.)
Dr. Schwartz indicated his specialty as “37, ” which refers to psychiatry. DI 24501.004 Medical Specialty Codes, SOCIAL SECURITY ADMINISTRATION, https://secure.ssa.gov/poms.nsf/lnx/0424501004 (last visited Oct. 26, 2021).
Dr. Schwartz noted that Mr. Manzella said he was “able to prepare simple meals and do light cleaning, ” but had a “[d]iminished ability to lift heavy objects, diminished ability to grip objects, difficulty with button and tie, [and] difficulty with some bathing and grooming.” (R. 65). Dr. Schwartz also noted that Mr. Manzella was able to complete a form, which was “legible . . . and appeared neatly written.” (R. 66).
Dr. Schwartz assessed Mr. Manzella's RFC and his exertional limitations as follows: occasionally lifting or carrying 20 pounds; frequently lifting or carrying ten (10) pounds; standing or walking with normal breaks for six (6) hours in an eight (8) hour workday; sitting with normal breaks for six (6) hours in an eight (8) hour workday; and unlimited pushing or pulling. (R. 64). Dr. Schwartz assessed Mr. Manzella's manipulative limitations as follows: unlimited reaching; limited handling (gross manipulation) on the left; unlimited fingering; unlimited feeling; and occasional handling (gross manipulation) with his left hand. (R. 65).
Dr. Schwartz concluded that Mr. Manzella did not have the RFC to perform his past relevant work, but could work as a gate guard, desk officer, or security consultant, each of which involved sedentary to light work and occasional handling. (R. 67-68). As a result, Dr. Schwartz opined that Mr. Manzella was not disabled. (Id.)
C. Administrative Proceedings
1. ALJ Hearing
On March 7, 2019, ALJ Cascio conducted the Hearing, with Mr. Manzella and his representative present in person. (R. 13, 33-35). Vocational Expert (“VE”) Millie Droste also testified at the Hearing. (R. 33, 51-57).
a. Mr. Manzella's testimony
Mr. Manzella described how “over the last few years, ” he experienced increasing pain, cramping, and “trigger finger” in both of his hands, a condition called Depuytren's. (R. 42). Mr. Manzella had surgery performed on both hands, most recently on his right hand on February 15, 2019. (R. 42-43). Mr. Manzella testified that, although his fingers were “weak, ” he could now open his hands “on [his] own.” (R. 43). Mr. Manzella also stated that he had metal plates and screws in both wrists as a result of prior fractures. (R. 44). In addition, Mr. Manzella described a herniated disc below his neck and arthritis in his lower back. (Id.) Finally, Mr. Manzella stated that he has an “asbestos induced” spot on his right lung “possibly from 9/11” that is being monitored. (R. 45).
In terms of his physical abilities, Mr. Manzella testified that he can walk up to three blocks “without a problem.” (R. 45). He has to stand after sitting for about a half an hour, and needs to sit down after two hours on his feet. (R. 45-46). He can lift and carry 20 to 25 pounds before needing to rest because his hands “start cramping up.” (R. 46). Following the surgery, he can make a fist with his left hand, but not with his right. (R. 46). He can write his name, but his handwriting gets “sloppier” over time. (R. 46-47). Mr. Manzella described having some trouble cleaning himself, and being unable to cook, but he can do small chores, including vacuuming, mopping, and sweeping. (R. 47-48).
When questioned by Ms. Lindhorst, Mr. Manzella described being able to hold a two- pound video camera for “only a few minutes” before his hands would cramp. (R. 50-51). He also testified that he could write for five or ten minutes before his hands would cramp. (R. 50).
b. VE testimony
ALJ Cascio posed four hypotheticals to VE Droste, who certified that her testimony would be consistent with the Dictionary of Occupational Titles (“DOT”) and the Selected Characteristics of Occupations (“SCO”). (R. 51-57). In the first hypothetical, ALJ Cascio asked VE Droste to:
The DOT is “an accepted basis for vocational opinion according to the Commissioner's rules.” Henry v. Colvin, 12 Civ. 6822 (KBF), 2015 WL 9238959, at *7 n. 7 (S.D.N.Y. Dec. 17, 2015) (citing Brault v. Comm'r Soc. Sec. Admin., 683 F.3d 443, 446 (2d Cir. 2012)).
[a]ssume a hypothetical person of [Mr. Manzella's] age, education, and work history. Further assume the person has residual functional capacity for a full range of light work. Further assume the following limitations. The person can occasionally climb stairs and ramps. No climbing ladders, ropes, or scaffolds. Occasional stooping, balancing, crouching, kneeling. Never crawl. Person should avoid unprotected heights and hazardous machinery. The person can occasionally handle and frequently finger with the bilateral wrists and hands.(R. 53). ALJ Cascio then asked whether that hypothetical individual could perform Mr. Manzella's past work, to which VE Droste responded that the person would be able to work as a private investigator, security officer, stationary engineer “as he performed it but not as generally performed, ” and detective. (R. 53-54).
ALC Cascio then posed a second hypothetical, which was identical to the first hypothetical, except that the person was “at the sedentary exertional level.” (R. 54). VE Droste responded that such a person could not do Mr. Manzella's past relevant work. (Id.) VE Droste also testified that “with little or no vocational adjustment, ” only one job would be available, that of “skip tracer, ” DOT 241.367-026, of which only 700 positions exist in the country. (R. 54-55).
ALJ Cascio then posed a third hypothetical, which was the same as the second hypothetical, except that the person would have to perform “occasional handling and fingering with the bilateral hands and wrists.” (R. 55). That is, instead of “frequently” fingering, the fingering would be only “occasional.” (Compare R. 53 with R. 55). VE Droste testified that such a person could not do Mr. Manzella's past work, and the skip tracer position was not applicable because “the handling in that job is frequent.” (R. 55).
The ALJ then posed a fourth hypothetical, which was the same as the first, but the fingering was occasional, not frequent. (R. 55-56). VE Droste stated that the person would still be able to work as a private investigator, security officer, or stationary engineer. (R. 56).
2. The ALJ Decision and Appeals Council Review
On April 10, 2019, the ALJ issued the Decision finding that Mr. Manzella was not disabled under the Act. (R. 13-22). As a preliminary matter, the ALJ found that Mr. Manzella met the insured requirements of the Act through March 31, 2022. (R. 15). At step one, the ALJ found that Mr. Manzella had not engaged in substantial gainful activity since July 31, 2017, the alleged onset date. (R. 15).
At step two, ALJ Cascio found that the following “severe impairments . . . significantly limit the ability to perform basic work activities”: “History of bilateral wrist injuries; De Quervain's syndrome; Cervicalgia, status post release surgery for left and right trigger fingers; Coronary artery disease (CAD) native artery); Facet arthropathy of the spine.” (R. 15). The ALJ found that the following medically determinable impairments, however, did “not cause significant (that is, more than slight or minimal) limitations on [Mr. Manzella's] ability to do basic work activities”: abnormal bone marrow; hypertension; hyperlipidemia; GERD; and his lung nodule. (R. 15-16).
At step three, ALJ Cascio concluded that Mr. Manzella “does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526), ” known as the “Listings.” (R. 16). ALJ Cascio specifically considered Listings 1.02, 1.04, and 4.04(c). (R. 16). As to Listing 1.02, the ALJ found that the record did “not demonstrate gross anatomical deformity and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint . . .” (R. 16-17). As to Listing 1.04, the ALJ found that the record did not show that Mr. Manzella had a compromised nerve root or spinal cord with the additional findings specified in the Listings. (R. 17). As to Listing 4.04(c), for ischemic heart disease, the ALJ found that there were no symptoms of “myocardial ischemia” with the additional conditions described in the Listings. See 20 C.F.R. Subpart P, Appendix 1, § 4.04.
Listing 1.02 “define[d] major dysfunction of a joint as a dysfunction characterized ‘by gross anatomical deformity (e.g. subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s).'” Schildwachter v. Berryhill, No. 17 Civ. 7177 (VEC) (SN), 2019 WL 1116256, at *3 (S.D.N.Y. Feb. 8, 2019) (quoting 20 C.F.R. Subpart P, Appendix 1, § 1.02)). Claimants alleging that ailments fell under Listing 1.02 must also show either (1) “[i]involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b;” or (2) “[i]nvolvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively, as defined in 1.00B2c.” Lopez v. Berryhill, 448 F.Supp.3d 328, 347 (S.D.N.Y. 2020). The Court notes that Listing 1.02 was eliminated as of April 2, 2021. See 20 C.F.R. Appendix 1, Subpart P, Part 404. Because it was in effect at the time of the Decision, however, it still controls for purposes of the Court's analysis. See Lowry v. Astrue, 474 Fed.Appx. 801, 805 n.2 (2d Cir. 2012) (applying Listing “in effect when the ALJ adjudicated [the challenged] disability claim”); Kiser v. Saul, 821 Fed.Appx. 211, 213 n.1 (4th Cir. 2020) (“the version of the listings in effect as of the date of the Commissioner's final decision controls.”); Distefano v. Berryhill, 363 F.Supp.3d 453, 466 n.5 (S.D.N.Y. 2019) (“Although the listings have since been revised, [courts] apply the listings that were in effect at the time the ALJ rendered his decision.”).
The ALJ's determination follows the language of Listing 1.04 in place at the time of the ALJ Decision: “disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture) must result in compromise of a nerve root (including the cauda equina) or the spinal cord with: Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine).” Colon v. Saul, No. 20-CV-2113 (KAM), 2021 WL 2827359, at *5-6 (E.D.N.Y. July 7, 2021) (quoting 20 C.F.R. Part 404, Subpart P, Appendix 1).
ALJ Cascio determined that Mr. Manzella had the residual functional capacity to:
perform the full range of light work as defined in 20 CFR 404.1567(b). He can occasionally climb stairs and ramps. However, he can never climb ladders, ropes, and scaffolds. He can never crawl but he can occasionally stoop, balance, crouch, and kneel. He should avoid unprotected heights and hazardous machinery. He can occasionally handle and frequently finger with his bilateral wrist and hands.(R. 17 (“Mr. Manzella's RFC”)). In analyzing Mr. Manzella's RFC, the ALJ concluded that, “[o]verall, the evidence generally does not support the alleged loss of functioning.” (R. 20). The ALJ found that Mr. Manzella's own statements of the severity of his symptoms and limitations were unsupported by: (i) “the objective clinical findings”; (ii) “the nature and frequency of treatment”; (iii) any “non-conclusory opinions, supported by clinical or laboratory evidence, from treating or examining physicians”; (iv) his approval for retirement from the NYPD “may reduce his motivations to seek further employment”; and (v) any “evidence of debilitating symptoms while testifying at the hearing.” (R. 20-21).
At step four, the ALJ determined that Mr. Manzella was capable of performing past relevant work as a private investigator, security officer, and detective “as actually and generally performed in the national economy, ” and as a station engineer “as actually performed only.” (R. 21-22).
Because the ALJ determined that Mr. Manzella had the RFC to perform past relevant work, he determined at step four that Mr. Manzella was not disabled and did not reach step five. (R. 22).
On March 30, 2020, the Appeals Council denied Mr. Manzella's request for review of the ALJ Decision. (R. 1-6).
III. LEGAL STANDARDS
A. Standard of Review
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. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999); Morcelo v. Barnhart, No. 01 Civ. 743 (RCC) (FM), 2003 WL 470541, at *4 (S.D.N.Y. Jan. 21, 2003).
The Act provides that the Commissioner's findings “as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). A court may set aside the Commissioner's decision denying SSI benefits if it is not supported by substantial evidence or was based on legal error. See Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). Judicial review, therefore, involves two levels of inquiry. First, the Court must decide whether the ALJ applied the correct legal standard. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, No. 05 Civ. 4254 (SCR) (MDF), 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). Second, the Court must decide whether the ALJ's decision was supported by substantial evidence. Id. “In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.” Longbardi v. Astrue, No. 07 Civ. 5952 (LAP), 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). 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.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal citations omitted). The substantial evidence test applies not only to the factual findings, but also to the inferences and conclusions drawn from those facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y. 1999). In determining whether the administrative record contains evidence to support the denial of claims, the Court must consider the whole record, and weigh all evidence to ensure that the ALJ evaluated the claim fairly. See, e.g., Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999). The Commissioner, not the Court, resolves evidentiary conflicts and appraises the credibility of witnesses, including the claimant. See, e.g., Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
Disability-benefits proceedings are non-adversarial in nature, and therefore, the ALJ has an affirmative obligation to develop a complete administrative record, even when the claimant is represented by counsel. See Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009). To this end, the ALJ must make “every reasonable effort” to help an applicant get medical reports from her medical sources. 20 C.F.R. § 404.1512b. Ultimately, “[t]he record as a whole must be complete and detailed enough to allow the ALJ to determine the claimant's residual functional capacity.” Casino-Ortiz v. Astrue, No. 06 Civ. 155 (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 recontacting the treating physician, requesting additional records, arranging for a consultative examination, or seeking information from others. 20 C.F.R. § 404.1520(b).
The Act authorizes a court, when reviewing decisions of the SSA, to order further proceedings: “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see Butts v. Barnhart, 388 F.3d 377, 382 (2d Cir. 2004). If “‘there are gaps in the administrative record or the ALJ has applied an improper legal standard, '” the Court will remand the case for further development of the evidence or for more specific findings. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)). Remand is particularly appropriate where further findings or explanation will clarify the rationale for the ALJ's decision. Pratts, 94 F.3d at 39. If, however, the reviewing court concludes that an ALJ's determination to deny benefits was not supported by substantial evidence, a remand solely for calculation of benefits may be appropriate. See, e.g., Butts, 388 F.3d at 386 (discussing Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000)).
B. Eligibility for benefits
For purposes of SSI and DIB benefits, one is “disabled” within the meaning of the Act, and thus entitled to such benefits, 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 twelve months.” 42 U.S.C. § 1382c(3)(A). The Act also requires that the impairment be “of such severity that [the claimant] 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. § 1382c(3)(B). In reviewing a claim of disability, the Commissioner must consider: “(1) objective medical facts; (2) diagnoses or medical opinions based on those facts; (3) subjective evidence of pain and disability testified to by claimant and other witnesses; and (4) the claimant's background, age, and experience.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988).
Under the applicable regulations, an alleged disability is evaluated under the sequential five-step process set forth in 20 C.F.R. § § 404.1520(a)(4)(i)-(v). The Second Circuit has described the process as follows:
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on the medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the Claimant could perform.Bush v. Shalala, 94 F.3d 40, 44-45 (2d Cir. 1996) (quoting Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983)).
At the first four steps, the claimant bears the burden of proof. At the fifth step, the burden shifts to the Commissioner to demonstrate that there are jobs in the national economy that the claimant can perform. See, e.g., Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). In meeting the burden of proof at the fifth step, the Commissioner can usually rely on the Medical- Vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, known as “the Grid.” Zorilla v. Chater, 915 F.Supp. 662, 666-67 (S.D.N.Y. 1996).
C. Evaluation of Medical Opinion Evidence
For benefits applications filed before March 27, 2017, the SSA's regulations required an ALJ to give more weight to those physicians with the most significant relationship with the claimant. See 20 C.F.R. § 416.1527; see also Taylor v. Barnhart, 117 Fed.Appx. 139, 140 (2d Cir. 2004). Under this “Treating Physician Rule, ” an ALJ was required to “give good reasons” Kevin E. v. Comm'r of Soc. Sec., No. 1:19-CV-593 (EAW), 2021 WL 1100362, at *4 (W.D.N.Y. Mar. 23, 2021) (quoting former 20 C.F.R. § 404.1527(c)(2)), if he or she determined that a treating physician's opinion was not entitled to “controlling weight, ” or, at least, “greater weight” than the opinions of non-treating and non-examining sources. Gonzalez v. Apfel, 113 F.Supp.2d 580, 588-89 (S.D.N.Y. 2000). In addition, under the Treating Physician Rule, a consultative physician's opinion was generally entitled to “little weight.” Giddings v. Astrue, 333 Fed.Appx. 649, 652 (2d Cir. 2009).
On January 18, 2017, the SSA published comprehensive revisions to the regulations regarding the evaluation of medical evidence, revisions that were effective on March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 F. R. 5844-01, 2017 WL 168819 (Jan. 18, 2017). These new regulations reflect a move away from a perceived hierarchy of medical sources. See id. The regulations now provide that an ALJ need “not 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. § 404.1520c(a). See Young v. Kijakazi, No. 20 Civ. 3604 (SDA), 2021 WL 4148733, at *9 (S.D.N.Y. Sept. 13, 2021). Instead, an ALJ must consider all medical opinions in the record and “evaluate their persuasiveness” based on five “factors”: (1) supportability, (2) consistency, (3) relationship of the source with the claimant, (4) the medical source's specialization, and (5) any “other” factor that “tend[s] to support or contradict a medical opinion[.]” 20 C.F.R. § 404.1520c(c)(1)-(5).
The new regulations define “prior administrative medical finding” as:
[A] finding, other than the ultimate determination about whether you are disabled, about a medical issue made by our Federal and State agency medical and psychological consultants at a prior level of review (see § 416.1400) in your current claim based on their review of the evidence in your case record, such as: (i) The existence and severity of your impairment(s); (ii) The existence and severity of your symptoms; (iii) Statements about whether your impairment(s) meets or medically equals any listing in the Listing of Impairments in Part 303, Subpart P, Appendix 1; (iv) If you are a child, statements about whether your impairment(s) functionally equals the listings in Part 404, Subpart P, Appendix 1; (v) If you are an adult, your residual functional capacity; (vi) Whether your impairment(s) meets the duration requirement; and (vii) How failure to follow prescribed treatment (see § 416.930) and drug addiction and alcoholism (see § 416.935) relate to your claim.20 C.F.R. § 416.913(a)(5).
Under the new regulations, a medical opinion is “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions in the following abilities . . .: (i) Your ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching); (ii) Your ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting; (iii) Your ability to perform other demands of work, such as seeing, hearing, or using other senses; and (iv) Your ability to adapt to environmental conditions, such as temperature extremes or fumes.” 20 C.F.R. § 404.1513(a)(2).
The ALJ's duty to articulate a rationale for each factor varies. 20 C.F.R. § 404.1520c(a). Under the new regulations, the ALJ must “explain, ” in all cases, “how [he or she] considered” both the supportability and consistency factors, as they are “the most important factors.” Id. 20 C.F.R. § 404.1520c(b)(2); see Young, 2021 WL 4148733, at *9 (describing supportability and consistency as “the most important” of the five factors). As to supportability, “the strength of a medical opinion increases as the relevance of the objective medical evidence and explanations presented by the medical source increase.” Vellone v. Saul, No. 20 Civ. 261 (RA) (KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021) (citing 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1)), adopted by, 2021 WL 2801138 (S.D.N.Y. July 6, 2021). Consistency “is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record.” Id.; see 42 U.S.C. § 423(f) (requiring ALJ to base decision on “all the evidence available in the” record).
As to the three remaining factors-relationship with the claimant, specialization, and “other”-the ALJ is required to consider, but need not explicitly discuss, them in determining the persuasiveness of the opinion of a medical source. 20 C.F.R. § 404.1520c(c). If the ALJ finds two or more medical opinions to be equally supported and consistent with the record, but not identical, the ALJ must articulate how he or she considered those three remaining factors. See id.
Several opinions among the district courts within the Second Circuit applying the new regulations have concluded that “the essence” of the Treating Physician Rule “remains the same, and the factors to be considered in weighing the various medical opinions in a given claimant's medical history are substantially similar.” Acosto Cuevas v. Comm'r of Soc. Sec., No. 20 Civ. 502 (AJN) (KHP), 2021 WL 363682, at *9 (S.D.N.Y. Jan. 29, 2021) (surveying district court cases in the Second Circuit considering the new regulations); see Prieto v. Comm'r of Soc. Sec., No. 20 Civ. 3941 (RWL), 2021 WL 3475625, at *9 (S.D.N.Y. Aug. 6, 2021) (noting that under both the Treating Physician Rule and the new regulations, “an ALJ's failure to properly consider and apply the requisite factors is grounds for remand.”); Dany Z. v. Saul, No. 2:19-CV-217 (WKS), 2021 WL 1232641, at *12 (D. Vt. Mar. 31, 2021) (surveying Second Circuit district courts that “have concluded that the factors are very similar to the analysis under the old [Treating Physician] [R]ule”); Andrew G. v. Comm'r of Soc. Sec., No. 3:19-CV-942 (ML), 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (noting that “consistency and supportability” were “the foundation of the treating source rule”); see also Brianne S. v. Comm'r of Soc. Sec., No. 19-CV-1718 (FPG), 2021 WL 856909, at *5 (W.D.N.Y. Mar. 8, 2021) (remanding to ALJ with instructions to provide explicit discussion of supportability and consistency of two medical opinions, because ALJ's “mere[] state[ment]” that examining physician's opinion was not consistent with overall medical evidence was insufficient).
D. Assessing a Claimant's Subjective Allegations
In considering a claimant's symptoms that allegedly limit his or her ability to work, the ALJ must first determine “whether there is an underlying medically determinable physical or mental impairment(s) -i.e., an impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques - that could reasonably be expected to produce the claimant's pain or other symptoms.” 20 C.F.R. § 404.1529(c). If such an impairment is found, the ALJ must next evaluate the “intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functional limitations.” 20 C.F.R. § 404.1529(c)(1). To the extent that the claimant's expressed symptoms are not substantiated by the objective medical evidence, the ALJ must evaluate the claimant's credibility. See Meadors v. Astrue, 370 Fed.Appx. 179, 183-84 (2d Cir. 2010); Taylor v. Barnhart, 83 Fed.Appx. 347, 350-51 (2d Cir. 2003).
Courts have recognized that “the second stage of [the] analysis may itself involve two parts.” Sanchez v. Astrue, No. 07 Civ. 931 (DAB), 2010 WL 101501, at *14 (S.D.N.Y. Jan. 12, 2010). “First, the ALJ must decide whether objective evidence, on its own, substantiates the extent of the alleged symptoms (as opposed to the question in the first step of whether objective evidence establishes a condition that could ‘reasonably be expected' to produce such symptoms).” Id. “Second, if it does not, the ALJ must gauge a claimant's credibility regarding the alleged symptoms by reference to the seven factors listed [in 20 C.F.R. § 404.1529(c)(3)].” Id. (citing Gittens v. Astrue, No. 07 Civ. 1397 (GAY), 2008 WL 2787723, at *5 (S.D.N.Y. June 23, 2008)). These seven factors include: (1) an individual's daily activities; (2) the location, duration, frequency and intensity of pain or other symptoms; (3) factors that precipitate and aggravate those symptoms; (4) the type, dosage, effectiveness, and side effects of medication that the individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, that the individual receives or has received for pain or other symptoms; (6) measures other than treatment the individual uses or has used to relieve pain or other symptoms; and (7) other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. See Bush, 94 F.3d at 46 n.4; 20 C.F.R. § 404.1529(c)(3). If the ALJ does not follow these steps, remand is appropriate. Sanchez, 2010 WL 101501, at *15.
IV. DISCUSSION
A. The Parties' Arguments
1. Mr. Manzella's arguments
Mr. Manzella's principal argument is that the ALJ's RFC analysis is not supported by substantial evidence. (ECF No. 19 at 19-21). He points to the fact that Dr. Figueroa, the only consultative examiner in the record, rendered her opinion 18 months before the Hearing, and although the ALJ found her opinion “persuasive, ” he did not adopt the functional limitations in her report. (Id. at 19-20). Mr. Manzella also objects to the ALJ's reliance on the treatment records of Dr. Carpentieri, who examined him only once in January 2017, and on the assessment of Dr. Schwartz, who did not personally examine Mr. Manzella and whose specialty was psychiatry, not orthopedics. (Id.)
2. The Commissioner's arguments
The Commissioner argues that substantial evidence supports the ALJ's RFC finding that Mr. Manzella could perform light work with some limitations. (ECF No. 25 at 11-18). After recounting the evidence on which the ALJ relied, the Commissioner asserts that Mr. Manzella's arguments are an “impermissible invitation[] for the Court to re-weigh the evidence in the record.” (Id. at 13). The Commissioner also rejects Mr. Manzella's argument that he cannot perform light work as contrary to the substantial evidence standard. (Id. at 17). Finally, the Commissioner explains that the ALJ sufficiently considered Mr. Manzella's lower back condition. (Id. at 18).
B. The ALJ Failed To Adequately Develop The Record
As a threshold matter, the Court finds that the ALJ failed to adequately develop the record with respect to Mr. Manzella's physical impairments and opinion evidence from treating sources regarding his ability to perform work-related functions, particularly post-surgery on his left and right hands. Remand is accordingly required to allow the ALJ to develop the record. See Rosa, 168 F.3d at 79 (explaining that whether the ALJ has satisfied the duty to develop the record is a threshold question); Laureano v. Comm'r of Soc. Sec., No. 17 Civ.1347 (SDA), 2018 WL 4629125, at *11 (S.D.N.Y. Sept. 26, 2018) (remanding where ALJ failed to adequately develop record as to claimant's impairments and opinions of claimant's treating sources).
1. Legal standard
The Second Circuit requires that “‘the ALJ, unlike a judge in a trial, must [him]self affirmatively develop the record' in light of ‘the essentially non-adversarial nature of a benefits proceeding.'” Pratts, 94 F.3d at 37 (quoting Echevarria v. Sec'y of Health & Hum. Servs., 685 F.2d 751, 755 (2d Cir. 1982)). The ALJ's duty to develop the record exists even when the claimant is represented:
The regulations describe this duty by stating that ‘[b]efore we make a determination that you are not disabled, we will develop your complete medical history . . . [and] will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports.”Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (quoting 20 C.F.R. § 404.1512(d)).
The Second Circuit “does not always treat the absence of a medical source statement from claimant's treating physicians as fatal to the ALJ's determination.” Swiantek v. Comm'r of Soc. Sec., 588 Fed.Appx. 82, 84 (2d Cir. 2015). An ALJ's failure to request opinions from a treating physician does not necessarily require remand if “the record contains sufficient evidence from which the ALJ can assess the [claimant's] [RFC].” Tankisi v. Comm'r of Soc. Sec., 521 Fed.Appx. 29, 33-34 (2d Cir. 2013). Although Tankisi predated the new regulations, at least two district courts in this Circuit has held that the rule in that case remains in effect: remand for failure to develop the record by obtaining a particular medical source statement depends on the circumstances of the case and will only be required if the record does not otherwise ‘contain[] sufficient evidence from which an ALJ can assess the [claimant's] [RFC].'” Angelica M. v. Saul, No. 3:20-CV-727 (JCH), 2021 WL 2947679, at *5 (D. Conn. July 14, 2021) (quoting Tankisi); see Prieto, 2021 WL 3475625, at *11-12 (remanding where “ALJ did not make the requisite follow-up attempt to obtain medical opinions from either of the treating physicians”).
Nevertheless, “[s]imply having a medical source statement in the record is not . . . ‘dispositive.'” Angelica M., 2021 WL 2947679, at *6 (quoting Delgado v. Berryhill, No. 3:17-CV-54 (JCH), 2018 WL 1316198, at *7 (D. Conn. Mar. 14, 2018)). Despite the presence of a medical source statement, courts have remanded for failure to develop the record where the opinions in the record did not sufficiently address the claimant's limitations. See, e.g., Delgado, 2018 WL 1316198, at *7 (remanding for failure to develop the record where treating source opinion did not address severe physical limitations that ALJ found); Card v. Berryhill, No. 3:18-CV-1060 (AWT), 2019 WL 4438322, at *4 (D. Conn. Sept. 19, 2019) (remanding where medical source statement of claimant's physical therapist did not address inconsistencies in the record and ALJ failed to seek clarification or opinion from treating physician).
ALJs may not, of course, “‘play doctor' by using their own lay opinions to fill evidentiary gaps in the record.” McGlothlin v. Berryhill, No. 1:17-CV-776 (MAT), 2019 WL 1499140, at *5 (W.D.N.Y. Apr. 4, 2019) (quoting Suide v. Astrue, 371 Fed.Appx. 684, 690 (7th Cir. 2010)). It is well-established that an ALJ is not “permitted to substitute his own expertise or view of the medical proof for the treating physician's opinion or for any competent medical opinion.” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (internal citations omitted); see Haynes v. Berryhill, No. 1:17-cv-81 (MAT), 2018 WL 3544944, at *4 (W.D.N.Y. July 24, 2018) (explaining that “an ALJ is not qualified to assess a claimant's RFC based on bare medical findings”). “Because an RFC determination is a medical determination, an ALJ who makes an RFC determination in the absence of supporting expert medical opinion has improperly substituted his own opinion for that of a physician, and has committed legal error.” Hilsdorf v. Comm'r of Soc. Sec., 724 F.Supp.2d 330, 347 (E.D.N.Y. 2010). The question for the reviewing court “is whether the record contains a medical opinion from either a treating or examining source that indicates what the claimant can and cannot do.” Norberto M. v. Saul, No. 3:20-cv-891 (SRU), 2021 WL 4472864, at *15 (D. Conn. Sept. 30, 2021); see Hooper v. Colvin, 199 F.Supp.3d 796, 815 (S.D.N.Y. 2016) (remanding where ALJ “made [claimant's] disability determination based on a record devoid of any truly complete medical opinion”).
2. Application
The Court finds that the ALJ failed to adequately develop the record with respect to Mr. Manzella's ability to perform work-related functions. The only medical source to provide an RFC assessment was consultative examiner Dr. Schwartz, who, based on his quotation of Dr. Figueroa's opinion, incorrectly described Mr. Manzella as having “de Quervain's syndrome, ”and opined that, while he could not perform his past relevant work, Mr. Manzella could perform three occupations-gate guard, desk officer, and security consultant-and therefore, was not disabled. (R. 65, 67-68). Dr. Figueroa examined Mr. Manzella on September 11, 2017, more than 18 months before the ALJ's RFC determination. (R. 262-66). During that 18-month period between Dr. Figueroa's examination and the ALJ Hearing, Mr. Manzella was: treated by Drs. Park, Saidi, and Rubin for hypertension, wrist and back pain, and bone marrow disorder; underwent surgery by Dr. Elkowitz on his left hand in May 2018 and on his right in February 2019, just a few weeks before the Hearing. (R. 43, 283, 300-30, 353-54, 361-68, 392). Given these developments in Mr. Manzella's impairments during the lengthy period between Dr. Figueroa's opinion and the ALJ's RFC assessment, the ALJ was obligated to obtain, at a minimum, an updated assessment from Dr. Figueroa. See Caban v. Comm'r of Soc. Sec., No. 18-CV-929 (PKC), 2019 WL 4254000, at *4-5 (E.D.N.Y. Sept. 9, 2019) (remanding for failure “to solicit updated and current medical opinions from Plaintiff's treating sources or from consultative examiners or any expert, following the progression of Plaintiff's symptoms after her February 2015 surgery”); McGlothlin, 2019 WL 1499140, at *4-5 (remanding for failure to develop the record where ALJ relied on “stale” consultative examination that was “unable to serve as substantial evidence”); Laureano, 2018 WL 4629125, at *13 (remanding for failure to develop the record where the only medical source to provide an RFC assessment was a consultative examiner who saw the claimant more than two years before ALJ hearing); Knepple-Hodyno v. Astrue, No. 11-CV-443 (DLI), 2012 WL 3930442, at *8 (E.D.N.Y. Sept. 10, 2012) (remanding for failure to develop the record where ALJ failed to obtain updated, post-surgery opinions of claimant's RFC). The ALJ did not do so, and therefor erred by making the RFC determination based on a stale and incomplete consultative medical opinion. See Hooper, 199 F.Supp.3d at 815.
See n.6, supra.
Further, the Record contains no medical source statement or RFC assessment from any of Mr. Manzella's treating physicians regarding his functional limitations. See McMahon v. Colvin, No. 16 Civ.1997 (VSB) (DF), 2017 WL 8948743, at *35 (S.D.N.Y. Aug. 18, 2017) (“The fact that the ALJ made his disability determination without first obtaining treating source statements regarding Plaintiff's functional impairments warrants remand.”), adopted by, 2018 WL 1989560 (S.D.N.Y. Apr. 25, 2018). Mr. Manzella told the ALJ at the Hearing that he had just undergone surgery a few weeks before the hearing, and, while he was able to “open them on [his] own, ” his right hand remained “weak.” (R. 43). This should have been an indication to the ALJ that he needed to supplement the record with the surgical records, as well as the need to obtain an updated assessment of Mr. Manzella's RFC, but the record does contain any indication that the ALJ followed up with Mr. Manzella's treating physicians to obtain these additional records or their medical opinions. See Cordova v. Saul, No. 3:19-CV-628 (JCH), 2020 WL 4435184, at *4-5 (D. Conn. Aug. 3, 2020) (remanding where ALJ failed to obtain a medical source statement from treating physician and treatment notes alone were insufficient to fill the gaps in the record); Caban, 2019 WL 45254000, at *5 (remanding where ALJ “fail[ed] to solicit updated and current medical opinions from Plaintiff's treating sources or from consultative examiners or an expert” following claimant's surgery); Haynes, 2018 WL 3544944, at *4 (remanding for failure to develop the record where evidence indicated changes in claimant's conditions but ALJ failed to obtain either updated consultative opinion or an RFC from claimant's treating physicians). Although the record contains treatment notes from Drs. Elkowitz, Park, and Rubin, it does not contain “an assessment of [Mr. Manzella's] functional limitations . . . provided by [any] of them, which the ALJ could rely upon in formulating the RFC.” Reynolds v. Comm'r of Soc. Sec., No. 17-CV-755 (FPG), 2019 WL 688874, at *4 (W.D.N.Y. Feb. 19, 2019). Notwithstanding the new regulations, the ALJ was required to obtain the treating physicians' assessment. See, e.g., Prieto, 2021 WL 3475625, at *12-13 (applying new regulations for evaluation of medical opinion testimony and remanding for failure to develop the record where ALJ did not obtain medical opinion from claimant's treating physicians); Angelica M., 2021 WL 2947679, at *8-9 (same). In the absence of such opinions, it appears, then, that the ALJ improperly “substituted [his] own judgment for credible medical opinion when []he arrived at [the] RFC” for Mr. Manzella. Reynolds, 2019 WL 688874, at *4; see Haynes, 2018 WL 3544944, at *4 (remanding where ALJ “did not seek a medical opinion regarding the extent of Plaintiff's handling and fingering limitations, but instead relied on her own lay assessment of the evidence in concluding that Plaintiff was capable of frequent handling and fingering.”).
The ALJ's error is exacerbated by his finding that “the record [did] not contain any non-conclusory opinions” from any of Mr. Manzella's treating or examining opinions indicating that he was disabled. (R. 21). Implicit in this finding is that gaps existed in the record that the ALJ did not fill. As one court in this district remarked in similar circumstances:
[i]t is fundamentally unfair for the ALJ not to develop the record by obtaining treating sources' opinions while at the same time basing his disability determination, inter alia, on the ground that “the record does not contain any non-conclusory opinions, supported by clinical or laboratory evidence, from treating or examining physicians indicating that the claimant is currently disabled.” The ALJ's failure to develop the record is an error of law warranting remand.Blair v. Colvin, No. 16 Civ.5983 (RJS) (KNF), 2017 WL 4339481, at *5 (S.D.N.Y. May 15, 2017), adopted by 2017 WL 4342123 (S.D.N.Y. Sept. 27, 2017). Thus, the Court finds that the lack of a treating medical source opinion containing a function-by-function assessment of Mr. Manzella's RFC “rendered the record incomplete.” Laureano, 2018 WL 4629125, at *13; see Alessi v. Colvin, No. 14-CV-7220 (WFK), 2015 WL 8481883, at *6 (E.D.N.Y. Dec. 9, 2015) (“[G]iven the gaps in the record and the absence of a thorough and sufficient medical assessment of Plaintiff's ability to sit, stand, walk, or lift from any physician who had seen the lumbar and cervical MRIs, the ALJ committed legal error by deciding Plaintiff could perform past relevant work without seeking to fill this gap.”).
Because the ALJ was obligated, but failed, to develop the record and obtain RFC assessments from Mr. Manzella's treating physicians, records for Mr. Manzella's February 2019 surgery, and an updated consulting opinion from Dr. Figueroa, the Court finds that remand to develop the record is appropriate. Prieto, 2021 WL 3475625, at *11 (“Having failed to” attempt to obtain treating physicians' medical opinions, “the ALJ did not fulfill his duty to develop the record, and his decision must be remanded for that reason alone.”); Oliveras ex rel. Gonzalez v. Astrue, No. 07 Civ. 2841 (RMB) (JCF), 2008 WL 2262618, at *6-7 (S.D.N.Y. May 30, 2008) (remanding with instructions to ALJ to make all reasonable efforts to obtain treating physician's opinion), adopted by, 2008 WL 2548016 (S.D.N.Y. June 25, 2008).
C. Additional Arguments
Mr. Manzella also takes issue with the ALJ's determination that he could perform light work, and contests the existence of a sufficient number of jobs available in the national economy in the one sedentary position that the VE testified he could do, skip tracer. (ECF No. 19 at 2125). Because the Court has found that remand is proper on the basis of the ALJ's failure to develop the record adequately with respect to a non-stale consultative opinion, opinions from Mr. Manzella's treating physicians, and records pertaining to his February 2019 right hand surgery, all of which are integral to the ALJ's determination of the RFC, the Court is unable to “meaningfully review the ALJ's RFC analysis and the VE testimony [that] relied upon the RFC in light of the antecedent errors, ” and therefore, the Court need not analyze Mr. Manzella's additional arguments. Merriman v. Comm'r of Soc. Sec., No. 14 Civ. 3510 (PGG) (HBP), 2015 WL 5472934, at *1, *24 (S.D.N.Y. Sept. 17, 2015); see Prieto, 2021 WL 3475625, at *16 (same); Christopher M. V. v. Comm'r of Soc. Sec., No. 1:19-CV-1500 (JJM), 2021 WL 804258, at *4 (W.D.N.Y. Mar. 3, 2021) (same). To the extent Mr. Manzella's additional arguments “raise potential problems that the ALJ can address on remand, ” however, the Court will briefly address them here. Molina v. Colvin, No. 15 Civ.8088 (JLC), 2016 WL 7388374, at *5 (S.D.N.Y. Dec. 20, 2016); see Duffy v. Comm'r of Soc. Sec., No. 17 Civ.3560 (GHW) (RWL), 2018 WL 4376414, at *13 (S.D.N.Y. Aug. 24, 2018) (citing Molina and performing brief analysis of claimant's additional arguments), adopted by 2018 WL 4373997 (S.D.N.Y. Sept. 13, 2018).
1. Ability to perform light work
The ALJ assessed Mr. Manzella as having the RFC “to perform the full range of light work as defined in 20 CFR [§] 404.1567(b).” (R. 17). The regulation defines light work as:
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. § 404.1567(b).
Mr. Manzella argues that the ALJ erred in finding him able to do the full range of light work where Dr. Figueroa did not state how much he could lift and carry, nor how long he could walk or stand, throughout the workday. (ECF No. 19 at 22). Mr. Manzella points to his testimony at the Hearing that his hands were “weak, ” he could lift and carry 20 pounds only as a one-time task, he could only walk a few blocks before having to rest, and has to sit after standing for two hours. (Id. (citing R. 43, 46, 49)). He also points to the evidence in the treatment notes of Drs. Park, Messina, and Weiser regarding his complaints of and treatment for joint and low back pain. (Id. (citing R. 302-304, 308-09, 330, 393-95, 424)). He also cites the December 26, 2018 lumbar spine X-ray showing facet joint arthrosis and L5-S1 mild sclerosis. (Id. at 22-23 (citing R. 330)). Mr. Manzella asserts that, given the ALJ's finding that his “facet arthropathy of the spine was severe, ” the ALJ had a duty to develop the record as to this impairment. (Id. (citing R. 15)).
The Commissioner responds that, by not specifying any exertional limitations, Dr. Figueroa “effectively found” that Mr. Manzella could perform light work, her specification of “moderate limitation in gripping activities” was consistent with the ALJ's “occasional handling” limitation, and her “mild limitation in fine motor skills activities” supported the ALJ's “frequent fingering” limitation. (ECF No. 25 at 12). The Commissioner also points to the ALJ's reliance on Dr. Schwartz's findings, as well as the treatment notes of Drs. Carpentieri, Rubin, and Elkowitz. (Id. at 12-13).
In addition to the conclusions above that Dr. Figueroa's opinion was stale and the record was flawed by the absence of treating physician RFC assessments or medical source statements, the Commissioner's attempt to bolster the ALJ's determination fails for an additional reason. As noted above, Dr. Figueroa labeled Mr. Manzella's primary condition as “de Quervain's syndrome, ” when, in fact, his treating physicians repeatedly described his condition as Depuytren's contracture. (Compare R. 262, 265 with R. 287, 297, 389). While both are conditions of the hand, they have different causes, manifestations, and symptoms. (See n.6, supra). Dr. Schwartz then relied on Dr. Figueroa's description (R. 65), and the ALJ in turn, made his RFC determination based on the same mischaracterization. (R. 15). Given that none of Mr. Manzella's treating physicians diagnosed him as having “de Quervain's syndrome, ” the Court “is ‘unable to fathom' what conditions and information the ALJ considered in reaching his determination.'” Soto v. Comm'r of Soc. Sec., No. 17-CV-2377 (PKC), 2018 WL 3241313, at *2 (E.D.N.Y. July 2, 2018) (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The ALJ's analysis regarding Mr. Manzella's impairments and resulting RFC determination “is confusing at best and appears to ignore some of the evidence at worst.” Carl D. v. Comm'r of Soc. Sec., No. 8:18-CV-1106 (DJS), 2019 WL 5537627, at *8 (N.D.N.Y. Oct. 25, 2019); see Lockwood v. Comm'r of Soc. Sec., No. 18-CV-103 (FPG), 2020 WL 880796, at *3 (W.D.N.Y. Feb. 24, 2020) (finding that, “[b]y blurring the impairments together and mislabeling them, ” ALJ failed to “fully consider[]” the record, requiring remand). Because the ALJ's RFC determination was based on his finding that Mr. Manzella had a condition undiagnosed in any of the treating physician records, the Court cannot conclude that that determination was supported by substantial evidence. Accordingly, on remand, the ALJ should develop the record as to the exact nature of Mr. Manzella's hand impairment(s) and its impact on his RFC.
2. Available sedentary jobs
The VE testified at the Hearing that Mr. Manzella's skills were transferrable to sedentary work, and while an individual in the second hypothetical could perform the job of skip tracer, only 700 such jobs existed, and an individual in the third hypothetical could not perform Mr. Manzella's past work. (R. 53-55). The ALJ did not, however, inquire, whether such an individual could still perform the sedentary position of skip tracer. (Id.) The ALJ ultimately concluded that Mr. Manzella could perform his past work as a private investigator, security officer, and detective, because those positions did “not require the performance of work-related activities precluded by” his RFC. (R. 21).
As noted above, “[a]t Step Five, the Commissioner must determine that significant numbers of jobs exist in the national economy that the claimant can perform.” McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014); see 20 C.F.R. § 404.1520(a)(4)(i)-(v). Neither the Act nor the Commissioner's regulations “provide a definition for a ‘significant' number of jobs.” Koutrakos v. Colvin, No. 3:13-CV-1290 (JGM), 2015 WL 1190100, at *21 (D. Conn. Mar. 16, 2015). Thus, courts are “generally guided by numbers that have been found ‘significant' in other cases, ” Hamilton v. Comm'r of Soc. Sec., 105 F.Supp.3d 223, 230 (N.D.N.Y. 2015), and courts within the Second Circuit “have generally found that what constitutes a ‘significant' number [of jobs] is fairly minimal.” Rodriguez v. Astrue, No. 11 Civ. 6977 (PAC) (DF), 2013 WL 3753411, at *3 (S.D.N.Y. July 17, 2013); see Torres v. Colvin, No. 3:16-CV-809 (JAM), 2017 WL 1734020, at *3 (D. Conn. May 3, 2017) (finding that 756 laundry laborer jobs available nationally did “not constitute a significant number”); Hanson v. Comm'r of Soc. Sec., No. 15-CV-150 (GTS) (WBS), 2016 WL 3960486, at *13 (N.D.N.Y. June 29, 2016) (finding that national numbers from 9, 000 and up constitute “significant”), adopted by Hanson v. Colvin, 2016 WL 3951150 (N.D.N.Y. July 20, 2016).
Given the gaps in the record that undermine the ALJ's RFC determination, the Court is unable to reach a specific finding on Mr. Manzella's alternative argument that the ALJ's Step Five determination is not supported by substantial evidence because the sole sedentary job that the VE identified-skip tracer-was not available in a significant number in the economy. (ECF No. 19 at 25). Instead, on remand, “the ALJ should consider the need to conduct a new Step Five determination in light of his consideration of [Mr. Manzella's] RFC.” Carl D., 2019 WL 5537627, at *8.
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that Mr. Manzella's Motion be GRANTED and the Commissioner's Motion be DENIED, and the case be remanded to the ALJ for further development of the record and a new decision as set forth above.
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 (14) 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. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Caproni.
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), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).