Opinion
22 Civ. 9215 (GHW) (GWG)
12-04-2023
ROSA MARIA MARTINEZ, Plaintiff, v. KILOLO KIJAKAZI, Defendant.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Rosa Maria Martinez brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of the June 28, 2022 decision of the Commissioner of Social Security (“Commissioner”) denying her application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (“Act”). Both parties have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons that follow, Martinez's motion should be denied, and the Commissioner's cross-motion should be granted.
See Notice of Motion, filed Apr. 7, 2023 (Docket # 16); Plaintiff's Memorandum of Law in Support of Her Motion for Judgment on the Pleadings, filed Apr. 7, 2023 (Docket # 17) (“Martinez Mem.”); Notice of Motion, filed May 31, 2023 (Docket # 20); Memorandum of Law in Opposition to Plaintiff's Motion for Judgment on the Pleadings and in Support of the Commissioner's Cross Motion, filed May 31, 2023 (Docket # 21) (“Comm'r Mem.”). Plaintiff did not file a reply to the Government's memorandum.
I. BACKGROUND
A. Procedural History
In March 2016, Martinez filed for DIB, alleging that she was disabled as of February 1, 2014, due to joint pain, hypothyroidism, and osteoarthritis. SSA Admin. Record, filed Feb. 6, 2023 (Docket # 14) (“R.”), at 229, 277. On April 22, 2016, Martinez's application was denied, R. 127, and on August 1, 2016, Martinez requested a hearing before an Administrative Law Judge (“ALJ”), R. 135. Martinez testified before an ALJ at a hearing on April 24, 2018, R. 88, and on August 1, 2018, the ALJ issued a decision finding that Martinez was not disabled and, therefore, not entitled to DIB or SSI, R. 12-27. On September 26, 2018, Martinez requested a review of the ALJ decision, R. 225, and on May 30, 2019, the Appeals Council denied Martinez's request for appeal, R. 1.
On July 30, 2019, Martinez filed an action in the Eastern District of New York seeking review of the Commissioner's decision. R. 575. On January 13, 2020, the Eastern District issued a stipulated order remanding Martinez's case to the SSA for further proceedings. R. 57980. On December 15, 2020, and again on November 18, 2021, Martinez appeared before a new ALJ for further hearings. R. 507, 541. On June 28, 2022, the ALJ issued a decision in which he found that Martinez was not disabled. R. 477. On October 27, 2022, Martinez filed the instant action challenging the ALJ's decision. Complaint, filed Oct. 27, 2022 (Docket # 1) (“Compl.”).
B. The Hearings Before the ALJ
Martinez appeared without representation at the April 24, 2018 hearing before the ALJ, which was held by video. See R. 15, 90. Also present and testifying was vocational expert (“VE”) Janice Hastert. R. 89. In brief, Martinez testified that she suffered from joint pain in her knees, shoulders, neck, and lower back, R. 94, that she had difficulty lifting her arms and bending down, R. 96-97, and had recurring ankle problems, R. 98. She testified that she took care of her son, including dressing, feeding, and bathing him, and was able to cook, clean, and do laundry, albeit with pain and dizziness. R. 100. She testified that she did her own shopping and went to some social events. R. 101. The VE testified that Martinez could work as a surveillance systems monitor, credit checker, or document preparer. R. 104.
At the December 15, 2020 hearing, which followed the remand, Martinez appeared with counsel and testified via telephone. See R. 509. She testified that she continued to suffer from back, neck, shoulder, and knee pain, and was receiving physical therapy. R. 514. Medications did not alleviate her pain, and she had stopped taking them. R. 518. She couldn't “stand for long, walk, and . . . lift [her] shoulder up,” and was “losing [her] balance” due to knee issues. R. 520. She could walk for two minutes at a time, and used a cane “several times a week” since 2017. R. 521-22. She could sit for two minutes at a time before experiencing back pain, and longer when using a heating pad. R. 522-23. Two days a week, she experienced such severe pain that she couldn't get out of bed “at all.” R. 523-24. Her brother and neighbor helped her care for her son, R. 527, and her brother came to her home “every day” to cook, clean, and do laundry. R. 528. She does not drive or use public transit. R. 530.
At the November 18, 2021 hearing, VE Marian Marracco testified via telephone. R. 543. She was asked questions regarding “a hypothetical individual who was born on January 25, 1978, [who] has at least a high school education .... [and] the residual functional capacity (RFC) to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except the individual cannot work on ladders, ropes or scaffolds; can occasionally use ramps and stairs; can occasionally balance, stoop, crouch, crawl, and kneel; cannot reach overhead but can frequently reach, handle, and finger in all other directions; cannot work indoors in a temperature controlled environment without exposure to extreme heat or cold, but would be able to work in a temperature setting similar to what one would typically expect in an office environment; must avoid vibrating machinery, and cannot work at unprotected heights or around dangerous machinery, which would include machinery encompassing open flames, exposed blades or moving parts.” R. 764; see R. 550-51 (adopting written statement). The VE testified that such a person could perform the unskilled occupations of document preparer, customer service clerk, or food & beverage order clerk. R. 765. This would be the case even if the hypothetical individual “required the use of a one handed cane for ambulation.” R. 766. Although the Dictionary of Occupational Titles (“DOT”) “does not address the use of any assistive device,” the VE's answer was “based on [her] professional credentials and given in [her] opinion.” Id. At the hearing, the VE testified that the DOT “does not address overhead reaching,” but based on her experience and professional credentials, she believed the same jobs would be available to a person who could not perform overhead reaching. R. 553.
C. The Medical Evidence
Both Aponte and the Commissioner have provided detailed summaries of the medical evidence. See Martinez Mem. at 3-10; Comm'r Mem. at 4-5. The Court directed the parties to specify any objections they had to the opposing party's summary of the record. See Scheduling Order, dated February 7, 2023 (Docket # 15). Neither party has done so. Accordingly, we adopt the parties' summaries of the medical evidence as accurate and complete for the purposes of the issues raised in this suit. We discuss the medical evidence pertinent to the adjudication of the instant case in Section III below.
D. The ALJ's Decision
The ALJ denied Martinez's application following the remand on June 28, 2022. R. 477-506. In doing so, he determined that Martinez “ha[d] not been under a disability, as defined in the Social Security Act, from February 1, 2014, through the date of [the] decision.” R. 496.
Following the five-step test set forth in the Social Security Administration (“SSA”) regulations, the ALJ found that Martinez “[met] the insured status requirements of the Social Security Act through September 30, 2018,” and “ha[d] not engaged in substantial gainful activity since February 1, 2014, the alleged onset date.” R. 484. At step two, the ALJ found that Martinez “ha[d] the following severe impairments: degenerative disc disease of the lumbar and cervical spine; degenerative joint disease of the bilateral knees, bilateral shoulders, and bilateral hips; seronegative arthritis; and obesity.” Id. The ALJ found that although there was evidence that Martinez had been treated or tested for hypothyroidism, right ankle tendonitis, and fibromyalgia, none of these ailments rose to the level of a severe impairment. See id. At step three, the ALJ found that Martinez “d[id] not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” R. 485.
Before moving on to step four, the ALJ assessed Martinez's residual functional capacity (“RFC”) for the relevant period. R. 486. The ALJ found that Martinez had the capacity “to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she cannot work on ladders, ropes or scaffolds; can occasionally use ramps and stairs; occasionally balance, stoop, crouch, crawl, and kneel; cannot reach overhead, but can frequently reach, handle, and finger in all other directions bilaterally; cannot work indoors in a temperature controlled environment without exposure to extreme heat or cold, but would be able to work in a temperature setting similar to what one would typically expect in an office environment; must avoid vibrating machinery, and cannot work at unprotected heights or around dangerous machinery, which would include machinery encompassing open flames, exposed blades or moving parts.” Id.
In making this RFC finding, the ALJ “considered all symptoms and the extent to which these symptoms [could] reasonably be accepted as consistent with the objective medical evidence and other evidence,” and “considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927.” R. 486-87. The ALJ specifically considered imaging studies of Martinez's cervical spine, lumbar spine, hips, shoulders, and knees, R. 48889, caregiver notes from physical examinations, R. 489-91, and the opinions of medical consultants Dr. Greenfield and Dr. Healy, as well as Physician Assistant Mihei, R. 492-93.
The ALJ gave Dr. Greenfield's determination that Martinez had “mild limitation in ability to squat and to abduct the shoulders” little weight in light of the remaining medical evidence in the record. R. 492. The ALJ gave little weight to Dr. Healy's determinations that Martinez could sit only for “4 hours in an 8-hour workday,” finding that the conclusion was “not supported by the overall evidence.” R. 492-93. The ALJ gave no weight to Dr. Healy's conclusion that “a cane is medically necessary,” explaining that:
the claimant only got this cane shortly before this exam and requested that it be prescribed, and while the claimant testified to using the cane every day, there is nothing in the medical records showing her using the cane at all outside of the short period where of a few months after she had a sprained ankle in February 2021 and at the consultative examinations.... Moreover, while it appears the claimant was using a cane when she appeared for her hearing in August 2017 []which was held just a couple of days after she had appeared at her doctors and requested that they prescribe her a cane . . . per the prior Administrative Law Judge's decision she was not using [it] at the subsequent hearing held in April 2018. There are multiple records of the claimant requesting that her providers prescribe her cane, but none of the doctors themselves in the treatment records suggesting that she need[s] it (again, outside of the period in early 2021).R. 492-93. The ALJ did not state the weight he gave to the remainder of Dr. Healy's conclusions. See id. Finally, the ALJ gave “little weight” to PA Mihei's conclusion regarding Martinez's restrictions, finding that it was “not wholly supported by the clinician's own exam findings” and the remainder of the medical record. R. 493.
The ALJ determined that “[d]espite her impairments, the claimant has engaged in a somewhat normal level of daily activity,” citing her “activities of daily living including attending to her personal care and hygiene, managing medications and appointments, preparing and cooking meals, shopping, using public transportation, performing some light household tasks, and caring for her son.” R. 487. Ultimately, the ALJ found that Martinez's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record[.]” R. 487-88.
At step four, the ALJ found that Martinez was “unable to perform any past relevant work.” R. 493. At step five, the ALJ found that “[c]onsidering [Martinez's] age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform,” including “document preparer,” “clerk -customer service,” and “clerk - food and beverage.” R. 494-95. The ALJ determined that “[a] finding of ‘not disabled' [was] therefore appropriate under the framework of the [Act].” R. 496. Thus, the ALJ ruled that Martinez “ha[d] not been under a disability, as defined in the Social Security Act, from February 1, 2014, through the date of [the] decision.” Id.
II. LEGAL STANDARD
A. Scope of Judicial Review
A court reviewing a final decision by the Commissioner “is limited to determining whether the [Commissioner's] conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam) (punctuation omitted); accord Greek v. Colvin, 802 F.3d 370, 374-75 (2d Cir. 2015) (per curiam); see generally 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive ....”). “Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.” Douglass v. Astrue, 496 Fed.Appx. 154, 156 (2d Cir. 2012) (quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)).
“If the reviewing court is satisfied that the ALJ applied the correct legal standards, then the court must ‘conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision.'” Ayala v. Kijakazi, 620 F.Supp.3d 6, 14 (S.D.N.Y. 2022) (quoting Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam). Substantial evidence is “more than a mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (punctuation omitted) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)); accord Greek, 802 F.3d at 375; Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008). “It means - and means only - such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (punctuation omitted). The “threshold for such evidentiary sufficiency is not high.” Id.
As such, it is not a reviewing court's function “to determine de novo whether [a claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (punctuation omitted); accord Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012), cert. denied, 570 U.S. 919 (2013). “Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam) (punctuation omitted). In other words, “[i]f the reviewing court finds substantial evidence to support the Commissioner's final decision, that decision must be upheld, even if substantial evidence supporting the claimant's position also exists.” Johnson v. Astrue, 563 F.Supp.2d 444, 454 (S.D.N.Y. 2008) (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)). The Second Circuit has held that “[t]he substantial evidence standard means once an ALJ finds facts, [a court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448 (emphasis in original, punctuation omitted). “The role of the reviewing court is therefore quite limited and substantial deference is to be afforded the Commissioner's decision.” Johnson, 563 F.Supp.2d at 454 (punctuation omitted).
B. Standard Governing Evaluation of Disability Claims by the Agency
The Social Security Act defines the term “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see id. § 1382c(a)(3)(A). A person will be found to be disabled only if it is determined that her “impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To evaluate a Social Security claim, the Commissioner is required to examine: “(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); accord Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (per curiam); Craig v. Comm'r of Soc. Sec., 218 F.Supp.3d 249, 260 (S.D.N.Y. 2016).
Regulations issued pursuant to the Social Security Act set forth a five-step process that the Commissioner must use in evaluating disability claims. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Burgess, 537 F.3d at 120 (describing the five-step process). First, the Commissioner must determine whether the claimant is currently engaged in any “substantial gainful activity.” 20 C.F.R. 404.1520(a)(4)(i), 416.920(a)(4)(i). Second, if the claimant is not engaged in substantial gainful activity, the Commissioner must decide if the claimant has a “severe medically determinable physical or mental impairment,” id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii), which is an impairment or combination of impairments that “significantly limits” the claimant's “physical or mental ability to do basic work activities,” id. §§ 404.1520(c), 416.920(c). Third, if the claimant's impairment is severe and is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, or is equivalent to one of the impairments listed, the claimant must be found to be disabled regardless of her age, education, or work experience. See id. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d). Fourth, the Commissioner must determine if the claimant is unable to perform past relevant work, id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv), and if not, fifth, the Commissioner must decide if the claimant's residual functional capacity, in addition to her age, education, and work experience, permits the claimant to do other work, id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant cannot perform other work, she will be deemed disabled. Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The claimant bears the burden of proof on all steps save the final one - that is, on all steps aside from proving that there is other work the claimant can perform. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam).
III. DISCUSSION
Martinez argues that two deficiencies in the ALJ opinion warrant remand: first, that the ALJ failed to properly evaluate the medical opinions of Dr. Healy, Martinez Mem. at 15, 20; and second, that the ALJ's RFC finding was not supported by substantial evidence, id. at 23.
A. Weight Given to Dr. Healy's Opinions
Martinez contends that the ALJ erred in rejecting two separate portions of Dr. Healy's opinion. See Martinez Mem. at 15, 20. Martinez argues that the ALJ's assignment of “no weight” to Dr. Healy's conclusion that Martinez's cane was medically necessary was “improper or wrong,” id. at 17, because, inter alia, the ALJ incorrectly characterized the record and relied upon impermissible sources, see id. at 17-18. Martinez also argues that the ALJ erred by assigning “little weight” to Dr. Healy's conclusions regarding Martinez's ability to sit and stand without explaining why this opinion was not consistent with the record. Id. at 22.
1. Medical Necessity of a Cane
Martinez contends that the ALJ incorrectly rejected Dr. Healy's opinion regarding her need for a cane. Id. at 15. While the Commissioner argues that this determination was correct, she argues in the alternative that any error was harmless in light of the VE's testimony that the same jobs available to a hypothetical individual with Martinez's RFC would be available to a person who also required the use of a one-handed cane. See Comm'r Mem. at 19. Because we agree as to the alternative, it is not necessary to evaluate whether the ALJ properly did not include the use of a cane in Martinez's RFC.
“[A]n ALJ's failure to apply the correct legal standard constitutes reversible error if that failure might have affected the disposition of the case.” Lopez v. Berryhill, 448 F.Supp.3d 328, 341 (S.D.N.Y. 2020) (citing Kohler, 546 F.3d at 265). “However, the Court need not remand the case if the ALJ only committed harmless error, i.e., where the ‘application of the correct legal principles to the record could lead only to the same conclusion.'” Jackson v. Kijakazi, 588 F.Supp.3d 558, 579 (S.D.N.Y. 2022) (quoting Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)).
Here, the ALJ asked the VE to opine as to whether a person of Martinez's RFC could “perform any unskilled occupations with jobs that exist in the national economy.” R. 765. The VE stated that the jobs of “document preparer,” “clerk - customer service,” and “order clerk -food & beverage” would be available to such a person. Id. The ALJ then asked whether an individual who “was further limited in that they required the use of a one[-]handed cane for ambulation” could “perform any unskilled occupations with jobs that exist in the national economy[.]” R. 766. The VE replied that “[t]he three jobs offered [previously] would remain,” explaining that “[t]he use of a cane for ambulation at the Sedentary level does not effect [sic] the performance of the essential functions of the job.” Id. The VE noted that “[t]he DOT does not address the use of any assistive device,” and stated that her answer was “based on [her] professional credentials and given in [her] opinion.” R. 767. In sum, the VE's testimony reflects that Martinez could perform the jobs identified even while using a one-handed cane.
The VE initially submitted answers to a written questionnaire, see R. 764-67, and later adopted her responses when testifying, see R. 550-51.
Martinez contends that the DOT's silence on assistive device use created a conflict between the VE's testimony and the DOT that the ALJ was required - and failed - to resolve. Martinez Mem. at 19. While the ALJ is generally required to resolve conflicts between a VE and the DOT regarding occupational requirements, see Lockwood v. Comm'r of Soc. Sec. Admin., 914 F.3d 87, 93-94 (2d Cir. 2019), no such conflict exists here, because the DOT does not address the use of a cane, see Gibbons v. Comm'r of Soc. Sec., 2023 WL 3830774, at *4 (2d Cir. June 6, 2023) (“The ALJ did not err because these limitations do not conflict with the [DOT], which the parties agree does not include these limitations.”). In short, where the DOT is silent regarding use of a cane and the VE has opined that the use of an ambulatory device would not impair the claimant's ability to perform an occupation, there is no conflict for the ALJ to resolve, and remand is not warranted. See Tanesha L. v. Comm'r of Soc. Sec., 2022 WL 4779761, at *3 (S.D.N.Y. Oct. 3, 2022) (where VE opined that use of a “hand-held device for ambulation . . . would not preclude a claimant from performing the representative occupations,” the ALJ was not required to resolve any conflict), see also id. at *4 (“[T]o the extent there [was] an arguable, apparent conflict between the [VE's] testimony and the actual requirements of the representative occupations, the ALJ's duty to resolve the conflict was satisfied. The vocational expert was asked about the need to use a hand-held device, testified about it specifically, stated that she believed the need to use a device for ambulation would not preclude performance of the representative occupations, and explained that her opinion was based on her education and experience in vocational rehabilitation.”).
Because the VE testified that Martinez could perform jobs in the national economy while using a cane in addition to the RFC assigned, the ALJ was not required to undertake any additional analysis with regard to that opinion. Accordingly, any error in the ALJ's decision to reject Dr. Healy's opinion regarding the medical necessity of a cane was harmless.
2. Sitting and Standing Limitations
Martinez argues that the ALJ gave only “scant, conclusory consideration” to Dr. Healy's conclusions that Martinez could “sit for 4 hours in an 8-hour workday,” and “sit and stand for 2 hours in an 8-hour workday,” and thus the ALJ failed to “provide th[e] Court with a road map for review.” Martinez Mem. at 20-21.
Remand may be appropriate where the ALJ fails to provide an adequate “roadmap” of his reasoning. See Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019) (“[T]he crucial factors in any determination . . . [must] be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.”) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). However, where “the evidence of record permits us to glean the rationale of an ALJ's decision,” the ALJ need not “have mentioned every item of testimony presented to him or have explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.” Mongeur, 722 F.2d at 1040; accord Gibbons, 2023 WL 3830774, at *2. Additionally, it is not error for an ALJ to “discount or reject an opinion in one part of a decision and provide the reasoning and record support for that evaluation elsewhere.” Wendy F. v. Comm'r of Soc. Sec., 2023 WL 2540397, at *2 (W.D.N.Y. Mar. 16, 2023) (citing Mangual v. Comm'r of Soc. Sec., 600 F.Supp.3d 313, 329 (S.D.N.Y. 2022)).
Here, the ALJ gave Dr. Healy's opinion regarding restrictions on Martinez's ability to sit “little weight.” R. 493. The ALJ's explanation for this decision states that the opinion “is not supported by the overall evidence” and “the physician did not articulate reasons or provide explanations for th[is] limitation[].” Id. The ALJ's decision to give this opinion little weight was based, then, on his determination that it was both inconsistent with the record and unsupported by Dr. Healy's examination.
Although the ALJ does not identify any specific evidence in the record that is inconsistent with Healy's opinion, the Court is nonetheless able to “glean the rationale” of the ALJ's determination. In an earlier part of his decision, the ALJ noted that
[t]he claimant has reported limited activities, including difficulty sitting, standing, and walking for more than a short time, difficulty with most household tasks, and difficulty lifting more than a gallon of milk. The objective evidence, including generally normal gait findings, intact sensation, and generally normal strength findings are not consistent with the claimant's allegations of symptoms and limited activities.R. 491. This passage makes clear that the ALJ considered the “normal gait findings, intact sensation, and generally normal strength findings” to be inconsistent with “difficulty sitting, standing, and walking.” See id. We find that the ALJ's failure to reiterate this conclusion in connection with Dr. Healy's opinion was not error that warrants remand.
The ALJ's explanation that Dr. Healy “did not articulate reasons or provide explanations” for his conclusion is a sufficient basis to discount that opinion under the regulations applicable to Martinez's application, which state that “[t]he more a medical source presents relevant evidence to support a medical opinion.... [and] [t]he better an explanation a source provides for a medical opinion, the more weight [the Commissioner] will give that medical opinion.” 20 C.F.R. § 404.1527(c)(3). Because it is clear that the ALJ based his decision on an absence of support in Dr. Healy's own report, remand is not warranted merely because no further explanation was provided.
Martinez's application for benefits was filed before March 27, 2017, and thus the regulations in effect at that time apply to her application. See Conetta v. Berryhill, 365 F.Supp.3d 383, 394 n.5 (S.D.N.Y. 2019).
B. Substantial Evidence
Martinez argues that the RFC “is not supported by any medical opinion,” and thus is not supported by substantial evidence. Martinez Mem. a 23. The Second Circuit has noted, however, that an “ALJ's RFC conclusion need not perfectly match any single medical opinion in the record, so long as it is supported by substantial evidence.” Schillo v. Kijakazi, 31 F.4th 64, 78 (2d Cir. 2022) (citing Richardson, 402 U.S. at 399). Similar to the instant case, in Schillo, the ALJ “declined to afford controlling weight to any of the three physicians' opinions” but nonetheless made an RFC finding. See Id. Schillo upheld this determination on the ground that it was supported by “other sources in the administrative record,” such as “MRI results, x-ray results, and notes documenting [plaintiff's] visits with other medical providers.” Id. Thus, the absence of a specific medical opinion as to a particular aspect of an RFC does not preclude the ALJ from making a finding. Instead, we must consider whether the RFC finding is otherwise supported by substantial evidence. See, e.g., Cook v. Comm'r of Soc. Sec., 818 Fed.Appx. 108, 109 (2d Cir. 2020) (“[A]lthough there was no medical opinion providing the specific restrictions reflected in the ALJ's RFC determination, such evidence is not required when the record contains sufficient evidence from which an ALJ can assess [plaintiff's] residual functional capacity.”) (punctuation and citation omitted).
Here, the ALJ's RFC states the following limitations:
the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she cannot work on ladders, ropes or scaffolds; can occasionally use ramps and stairs; occasionally balance, stoop, crouch, crawl, and kneel; cannot reach overhead, but can frequently reach, handle, and finger in all other directions bilaterally; cannot work indoors in a temperature controlled environment without exposure to extreme heat or cold, but would be able to work in a temperature setting similar to what one would typically expect in an office environment; must avoid vibrating machinery, and cannot work at unprotected heights or around dangerous machinery, which would include machinery encompassing open flames, exposed blades or moving parts.R. 486. The ALJ does not explain precisely what evidence supports these restrictions, but there is little doubt - and the parties appear to agree - that they have been drawn in part from Dr. Healy's opinion. See Martinez Mem. at 26 (“The ALJ cherry picked from Dr. Healy's medical opinion to manufacture a finding that plaintiff had a sedentary RFC.”); Comm'r Mem. at 24 (“[T]he ALJ relied on most of Dr. Healy's opinion in assessing [p]laintiff's RFC finding” and “implicitly accepted the remaining portions of the opinion[.]”). Indeed, the ALJ notes restrictions from Dr. Healy's opinion regarding reaching and handling, climbing, stooping, and kneeling that are similar to the eventual RFC. See R. 492.
The ALJ also notes a record of “generally normal gait findings, intact sensation, and generally normal strength findings,” along with “some progression in degenerative disease, some noted weakness, and varied straight leg raise findings.” R. 491. The ALJ directly cites this record as support for a limitation to “sedentary exertion with . . . additional postural, reaching, manipulative, and environmental restrictions[.]” Id. The ALJ discounts claims of additional limitations based on “mild” examination findings and a conservative record of treatment. See id.
Martinez does not dispute that these findings appear on the record or that the portions of the record cited by the ALJ accurately reflect the findings described the decision: namely, generally normal gait, sensation, and strength findings. See R. 384, 413, 1018, 1147, 1402, 1407, 1459, 1467, 1488, 1502, 1554, 1560, 2218, 2336. Instead, Martinez argues that the record absent medical opinions actually supported a light work RFC, with a 20-pound lifting limitation - thus demonstrating that the ALJ relied on “his layperson opinion” rather than medical evidence, in contravention of SSA regulations. Martinez Mem. at 25. However, where an ALJ otherwise properly assesses the evidence, he does not commit error by imposing a more restrictive RFC on plaintiff than expected. See Ramsey v. Comm'r of Soc. Sec., 830 Fed.Appx. 37, 39 (2d Cir. 2020) (no error where ALJ “occasionally deviated from consultative examiners' recommendations to decrease [plaintiff's] RFC based on other evidence in the record”).
Finally, Martinez argues that because some of Dr. Healy's opinions are reflected in the RFC while others were given low or no weight, the ALJ's decision reflects improper “cherry picking.” See Martinez Mem. at 26. Martinez is correct that “an ALJ may not selectively favor medical opinions, or portions of an opinion, that support [his] opinion and ignore opinions or facts that do not.” Marcano v. Comm'r of Soc. Sec., 2021 WL 5315703, at *19 (S.D.N.Y. Nov. 16, 2021); accord Herrera v. Comm'r of Soc. Sec., 2021 WL 4909955, at *9 (S.D.N.Y. Oct. 21, 2021); Prieto v. Comm'r of Soc. Sec., 2021 WL 3475625, at *14 (S.D.N.Y. Aug. 6, 2021). However, “[it] is entirely proper for the ALJ to only credit portions of medical source opinions, or weigh different parts of the same opinion differently.” Id. (quoting Artinian v. Berryhill, 2018 WL 401186, at *8 (E.D.N.Y. Jan. 12, 2018)). “[I]f the ALJ credits part of a certain opinion to support a finding, while simultaneously rejecting another portion of that same opinion, the ALJ should provide good reasons for doing so.” Id. at *20 (collecting cases).
While the RFC ultimately accepts some portions of Dr. Healy's opinion while rejecting others, we do not find that the ALJ “selectively favor[ed]” those that supported a sedentary RFC finding. As we have explained, the ALJ cited other evidence in the record when rejecting limitations beyond the RFC, including “mild” clinical findings and the conservative record of treatment. See R. 491. The ALJ likewise provided his reasoning for rejecting Dr. Healy's limitation on use of a cane, see R. 492, and for giving little weight to Dr. Healy's opinion on sitting and standing based on inconsistency with the record, see Section III.A.2 above. Thus, the ALJ has provided “good reasons” for giving lesser weight to portions of Dr. Healy's opinion, see Marcano, 2021 WL 5315703, at *20, and his RFC finding is consistent with the record as a whole. Remand is not warranted on the basis of the ALJ's partial use of Dr. Healy's opinion. See, e.g., Rubin v. Kijakazi, 2023 WL 2016300, at *27 (S.D.N.Y. Feb. 15, 2023) (ALJ “did not impermissibly cherry pick the evidence” where “the RFC finding was ‘consistent with the record as a whole'”) (quoting Matta v. Astrue, 508 Fed.Appx. 53, 56 (2d Cir. 2013)).
In sum, we find that the ALJ's RFC determination was supported by substantial evidence.
IV. CONCLUSION
For the foregoing reasons, Martinez's motion for judgment on the pleadings (Docket # 16) should be denied, and the Commissioner's cross-motion (Docket # 20) should be granted.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Woods. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).