Maurer v. Comm'r of Soc. Sec.

Full title: KATIE ANN MAURER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Court: United States District Court, S.D. New York

Date published: Jun 17, 2022

21 Civ. 6518 (KMK) (JCM) (S.D.N.Y. Jun. 17, 2022)

Opinion

21 Civ. 6518 (KMK) (JCM)

06-17-2022

KATIE ANN MAURER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

JUDITH C. McCARTHY UNITED STATES MAGISTRATE JUDGE

The Honorable Kenneth M. Karas, United States District Judge

REPORT AND RECOMMENDATION

JUDITH C. McCARTHY UNITED STATES MAGISTRATE JUDGE

Plaintiff Katie Ann Maurer (“Plaintiff”) commenced this action on August 2, 2021 pursuant to 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security (“Commissioner”), which partially denied Plaintiff's application for Disability Insurance Benefits (“DIB”). (Docket No. 1). Presently before the Court are: (1) Plaintiff's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, (Docket No. 10), accompanied by a memorandum of law (“Pl. Br.”) (Docket No. 11), and (2) the Commissioner's cross-motion for judgment on the pleadings, (Docket No. 15), accompanied by a memorandum of law (“Comm'r Br.”), (Docket No. 16). For the reasons set forth below, I respectfully recommend granting Plaintiff's motion, denying the Commissioner's cross-motion, and remanding the case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Report and Recommendation.

I. BACKGROUND

Plaintiff was born on May 8, 1983. (R. 147). Plaintiff first applied for DIB on July 27, 2016. (Id.). She alleged an amended disability onset date of May 5, 2016. (R. 167). After a hearing on August 27, 2018, Administrative Law Judge Sharda Singh (“ALJ Singh”) denied Plaintiff's claim on December 14, 2018, (R. 12-26), and the Appeals Council subsequently denied review, (R. 1). Plaintiff appealed to the United States District Court, and at the parties' request, the Court remanded the case for further proceedings. (R. 486-87); see also Maurer v. Comm'r of Soc. Sec., No. 7:20-cv-00130(JCM), ECF No. 16 (S.D.N.Y. Sept. 28, 2020). On remand,¹ under the Appeals Council's direction, ALJ Singh conducted a second hearing by telephone on February 1, 2021. (R. 417, 440-69). On April 1, 2021, the ALJ issued a partially favorable decision, finding that Plaintiff was disabled after February 22, 2019, but not before. (R. 418, 431). Plaintiff now appeals the ALJ's decision. (Docket No.1). Because Plaintiff did not file exceptions to the ALJ's decision, and the Appeals Council did not assume jurisdiction within 60 days, the ALJ's decision became the final decision of the Commissioner and is properly before this court. See 20 C.F.R. § 404.984(d).

1 Plaintiff applied for disability again on December 12, 2019 for essentially the same impairments. (R. 603-04). Upon remanding Plaintiff's case to the ALJ, the Appeals Council consolidated the claims. (R. 503).

A. Medical Evidence ²

2 The Court only summarizes the medical evidence relevant to the issues raised in this matter.

1. Before February 2019

On April 25, 2016, Plaintiff visited Dr. Todd B. Askenas, D.C. (“Dr. Askenas”), a chiropractor,³ with complaints of constant midback pain rated at a 4 out of 10 and frequent moderate neck pain rated at “0-8,” both of which began in March 2016 from holding and feeding her newborn baby. (R. 226). Examination revealed restricted cervical motion, with “malpositioned right lateral” spinal joint fixations at T3-T6, and a severe amount of left lateral restrict joint function at C4-C7. (Id.). There was moderate tension of the thoracic muscles and severe hypertonicity of the cervical paraspinal muscles. (Id.). Palpation demonstrated a moderate level of pain at T3-T6 bilaterally and a severe degree of pain at C4-C7 bilaterally, and Plaintiff had positive Maximum Cervical Compression and Shoulder Depression tests. (R. 22627). Trigger points were identified in the right and left paraspinal cervical musculature, and Plaintiff was diagnosed with segmental and somatic dysfunction of the cervical and thoracic region, other idiopathic scoliosis in the thoracic region, and contracture of muscles. (R. 227). Dr. Askenos administered “adjustment[s]” to the neck to correct misalignment and joint fixation, and performed myofascial release to the thoracic spine to reduce myofascial adhesions and improve soft tissue mobilization. (Id.). Plaintiff was ordered to return twice a week, with the goal of decreasing her pain to 4 out of 10 in three weeks and permitting her to sit for an hour without painful limits. (Id.).

3 According to the regulations, a chiropractor is not listed as an acceptable medical source. See 20 C.F.R. § 404.1513(a). “Instead, chiropractors are expressly listed in a different section, under ‘other sources' whose ‘[i]nformation ... may also help [the ALJ] to understand how [Plaintiff's] impairment affects [his] ability to work.'” Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 2022) (quoting 20 C.F.R. § 404.1513(e) (1994)). “Because the regulations do not classify chiropractors as either physicians or “other acceptable medical sources,” chiropractors cannot provide medical opinions.” Id.

On May 5, 2016, Plaintiff met with pain management physician Dr. Lyssa Jacobs, M.D. (“Dr. Jacobs”) at Pain Management Associates. (R. 286). Plaintiff had been receiving treatment for her neck and thoracic pain at Pain Management Associates for “several years.” (Id.). She reported experiencing increased pain since giving birth to her baby in February and rated it a 3 out of 10 in severity, and worse when sleeping. (Id.). Examination revealed tenderness along the cervical spine and facet joints, and trigger points were identified in her trapezius, rhomboid, and levator scapulae muscles, predominantly on the right side. (Id.). Her strength and sensation to touch were intact in her bilateral upper extremities. (Id.). Dr. Jacobs diagnosed her with chronic neck and thoracic pain, and recommended cervical facet block, trigger point injections, and Percocet as treatment. (Id.). Plaintiff's pain subsequently improved, (R. 228, 229), and on May 20, 2016, Dr. David Gamburg, M.D. (“Dr. Gamburg”) performed facet nerve blocks on Plaintiff's right C4, C5, and C6, (R. 293). By June 1, 2016, Plaintiff noted at a chiropractic visit with Dr. Askenas that her back and neck pain had reduced to 2 and 3 out of 10, respectively. (R. 230).

However, on June 9, 2016, Plaintiff's pain worsened to a pain level of 5 in both her midback and neck, and additional trigger points were identified in her right levator scapulae and right rhomboids. (R. 230-31). Plaintiff continued to exhibit a limited range of motion and positive Maximum Cervical Compression and Shoulder Depression tests. (R. 231). However, examination revealed slight improvements in condition: only “slight discomfort” at T3-T6 bilaterally and “moderate” pain at C4-C7 bilaterally; a “slight degree” of hypertonicity in the thoracis muscles and “moderate” hypertonicity of the cervical paraspinal muscles; and “moderate” degree of fixation at T3-T6 and C4-C7, with C4-C7 showing a lateral deviation to the right. (R. 231).

On June 29, 2016, upon referral, Plaintiff saw Dr. Evan Gaines, M.D. (“Dr. Gaines”) at Northeast Orthopedics and Sports Medicine, complaining of hip pain that began on March 1, 2016. (R. 667). The pain was worse on the right side, did not radiate, and there was no numbness or tingling. (Id.). She also reported general arthritic joint problems, osteoarthritis, headaches, neck pain, and lower back pain and muscle aches, (R. 667-68), but had not yet tried any remedies, (R. 667). Examination confirmed tenderness over her pubic symphysis but also revealed full range of movement over her hips, negative FABER (Flexion Abduction External Rotation) test, negative impingement, and 4/5 strength with hip flexion, abduction, and adduction. (R. 668). Dr. Gaines reviewed an anteroposterior view of Plaintiff's pelvic X-ray and found “degenerative change and mild stepoff at the symphysis,” but no abnormalities of the hip joints. (Id.). Dr. Gaines assessed Plaintiff with pubalgia, explained that the problem was “typically managed without surgery,” and recommended physical therapy and over-the-counter anti-inflammatories. (Id.).

By July 6, 2016, Plaintiff's pain worsened to a 7 out of 10 for both back and neck, and palpitation showed “moderate” pain at T3-T6 and “severe” pain at C4-C7. (R. 232). Dr. Askenas's examination revealed that her joints and muscles had returned to her April 2016 levels of fixation and hypertonicity. (Compare R. 232 with R. 226). Dr. Askenas assessed Patient's acute exacerbation as the result of “holding baby and not being able to get care [in the] last 4 weeks.” (R. 232). Plaintiff received chiropractic adjustments to her neck and myofascial release to her spine, and noted that there was slight improvement in pain levels that month, with her midback pain rated a 6 out of 10 and her neck pain rated a 4 out of 10. (R. 232-34). On August 4, 2016, Dr. Gamburg performed a bilateral facet rhizotomy to Plaintiff's C4-C5 and diagnosed her with cervical spondylosis. (R. 294).

At a visit on September 28, 2016, Plaintiff reported that the previous day she experienced hip and lower back pain that was throbbing and intermittent, and noted that she was unable to fully stand up straight. (R. 670). She was unable to alleviate the pain with ice, heat, or antiinflammatory medication, but at the visit, she reported the pain had “much improved,” some “90% better.” (Id.). Examination revealed normal body habitus, normal gait, no spasm, no gross deformity, no tenderness, no pain with leg roll or impingement maneuvers, negative straight leg raise test, negative FABER test, and 5/5 muscle strength. (R. 671). Dr. Gaines assessed Plaintiff with “lower back pain” that was “without evidence for radicular symptoms,” and again advised “primarily nonoperative” treatment like physical therapy, ice and heat, and medications. (Id.). Plaintiff was ordered to begin “home exercises” and to follow up in four weeks if she felt no improvement, in order to consider formal physical therapy and imaging. (Id.).

X-rays from October 12, 2016 showed “mild levoscoliosis” in her lumbosacral spine and straightening of her cervical spine, as well as well-maintained height of vertebral bodies and intervertebral disc spaces, and intact pedicles. (R. 276-77).

On October 20, 2016, Plaintiff returned to Dr. Jacobs and noted “90% improvement” in symptoms since her cervical facet rhizotomy, rating her neck pain at a 2 out of 10 in severity but noting continued pain in her back that “burn[ed] and tingl[ed].” (R. 287). She reported being unable to work because she had trouble lifting and pushing items heavier than 10 pounds, standing and walking for longer than 30 minutes, and keeping her arms overhead to style hair, and needed to take multiple posture breaks. (Id.). Examination revealed improved range of cervical motion, tenderness to palpation in the mid-thoracic and upper lumbar regions, limited forward flexion in her lumbar spine, and 5/5 strength in all extremities. (Id.).

In February 2017, after doctors failed to diagnose her recurrent symptoms, Plaintiff visited Westwood Cardiology to check if she had positional orthostatic tachycardia syndrome (“POTS”). (R. 317). Symptoms included elevated heart rate, low blood pressure, purple itchy discoloration of her legs, limited food intake, and syncope. (Id.). Upon examination, Dr. Patricia Murphy, M.D., F.A.C.C., (“Dr. Murphy”), found scoliosis and varicose veins, but no gross motor or sensory deficits, and determined that Plaintiff “may very well have POTS syndrome.” (R. 317-19). Plaintiff was informed there was “no FDA approved medication,” and Dr. Murphy recommended that Plaintiff, who preferred to avoid medical therapy, have “a salty meal before bed and another one on arising with increased water intake.” (R. 319). Dr. Murphy ordered an echocardiogram and told Plaintiff to ask her primary physician about rheumatological issues. (Id.). Plaintiff's echocardiogram showed trace to mild mitral regurgitation, normal left ventricular cavity dimensions, systolic and diastolic function, and tricuspid valve prolapse with trace tricuspid regurgitation. (R. 325). Dr. Murphy's impression was that Plaintiff had “positional tachycardia in the setting of being severely underweight.” (R. 323). In March 2017, after Plaintiff reported dramatically improved symptoms and a fifteen-pound weight gain using mirtazapine, (R. 321, 323), Dr. Murphy advised Plaintiff to continue with the medication and follow up with her prescribing doctor, (R. 323).

Plaintiff returned to Dr. Jacobs in May 2017 with neck, thoracic, and lower back pain. (R. 288). She reported feeling that the effects of her August rhizotomy were wearing off, and her pain was returning. (Id.). Plaintiff also suffered from “falling of her jaw and tongue,” which caused additional pressure on her trachea and pain in her neck. (Id.). Plaintiff was not doing physical therapy but reported continuing to work with her chiropractor and on the home exercise program. (Id.). Examination showed cervical extension and bilateral rotation, and 5/5 strength and intact sensation in her bilateral upper extremities. (Id.). However, she exhibited scoliosis in the spine, increased thoracic kyphosis, forward flexed neck, and multiple trigger points throughout her bilateral trapezial muscles. (Id.). On June 22, 2017, Dr. Gamburg performed bilateral facet rhizotomy at C4 and C5. (R. 295).

On July 31, 2017, Plaintiff returned to Pain Management Associates for new pain in her lower back rated at an 8 or 9 out of 10 in severity. (R. 289). The pain began after she lifted a heavy piece of furniture, and was improving but radiated into her left leg and thigh; she remained unable to bend and lift. (Id.). Dr. Gamburg performed an examination, revealing positive straight leg elevation on the left side at 40 degrees and tender left sacroiliac joint, but also intact strength, sensation, and reflexes, and diagnosed her with sciatica and sacroiliitis. (Id.). Dr. Gamburg ordered a lumbar spine MRI to evaluate for sciatica, (id.), and the MRI, taken in September 2017, showed levoconvex curvature and disc desiccation at L2-L3, L3-L4, and L4-L5, (R. 297). At L3-L4, there was a shallow right posterior herniation “flattening the right ventral margin of the thecal sac.” (Id.). At L4-L5, there was a left posterior disc herniation causing “narrowing [at] the lateral recess and inferior left neural foramina.” (Id.). At L5-S1, there was a broad-based central disc herniation “flattening the ventral margin of the thecal sac.” (R. 296, 297).

On October 9, 2017, Dr. Gamburg administered an epidural cortisone injection in the left L4 and L5, (R. 299-300), which “significantly helped her with her sciatic symptoms.” (R. 304). He also recommended physical therapy to address her continued left hip pain. (Id.).

On February 8, 2018, Plaintiff reported to Dr. Gaines that her pain ranged from 4 to 7 out of 10 and that she had improved sciatic symptoms after her lumbar epidural injection. (R. 290). However, she experienced increased pain in her neck along the upper distribution and exhibited significant tenderness at C3-C4, with restricted range of motion. (Id.). Dr. Gamburg recommended a facet block for “diagnosis of cervical spondylotic changes in the cervical spine,” (Id.), which he performed on February 14, 2018. (R. 301). Plaintiff's preoperative diagnosis included cervical arthropathy and spondylosis, but her postoperative diagnosis was “SAA.”⁴(Id.).

4 The Court understands “SAA” here to refer to the serum amyloid A protein, which is often produced in chronic inflammatory conditions including arthritis.

After receiving the bilateral facet block, Plaintiff reported feeling “greater than 80% relief of her pain” over the previous month. (R. 291). She reported, however, a recurrence of pain and difficulty with neck movement, extension, and rotation. (Id.). To address Plaintiff's pain, Dr. Gamburg added Lorzone to Plaintiff's prescription and performed a cervical rhizotomy at C2-C3 on April 26, 2018. (R. 291, 303).

X-rays from July 2, 2018 showed mild scoliosis in her lumbosacral spine, straightening of her cervical spine, and scoliosis with mild degenerative spurring in her thoracic spine. (R. 284-85). Each showed well-maintained height of vertebral bodies and intervertebral disc spaces and no acute fracture of subluxation. (Id.). Mild dextroscoliosis was noted in the thoracic spine at the T8-T9 intervertebral disc space. (R. 285).

On July 26, 2018, Plaintiff visited Crystal Run Healthcare for an evaluation to “rule out” Ehlers-Danlos. (R. 305). Plaintiff complained of memory loss, loss in balance, and poor grip strength, (R. 305), and upon physical examination, Dr. Suleman Bhana, M.D. (“Dr. Bhana”) found Plaintiff likely had Ehlers-Danlos and Raynaud's without gangrene, (R. 307-08). On August 1, 2018, Dr. Bhana informed Plaintiff that her bone density suggested osteopenia with possibility of osteoporosis and suggested Plaintiff continue regular exercise. (R. 310).

On August 8, 2018, fourteen months after her cervical rhizotomy in June 2017, Plaintiff returned to Dr. Gamburg, complaining of recurrent mid-cervical pain. (R. 292). Plaintiff's rhizotomy at C2-C3 from August 2018 was “still working unaffected,” but Dr. Gamburg found symptoms of cervical arthropathy and spondylosis at C4-C5 and determined her rhizotomy at C4-C5 had “worn off.” (Id.). A second rhizotomy at C4-C5 was performed on August 16, 2018. (R. 692). Plaintiff also received four trigger point injections in her lower trapezius and post cervical areas. (Id.).

On November 27, 2018, Plaintiff underwent a mental status exam that revealed fair and normal results in appearance, orientation, behavior, speech, attention, mood, affect, thought process and content, perception, insight, judgment, impulse control, and cognition. (R. 703). Nurse Practitioner Carl Ankrah, (“NP Ankrah”)⁵ diagnosed Plaintiff with major depressive disorder, continued Plaintiff on Diazepam and Remeron, added Valium and Promethazine, and recommended therapy. (Id.).

5 Though the regulations were amended in 2017 to add advanced practice registered nurses (a category that includes nurse practitioners) to the list of acceptable medical sources, these new regulations do not apply to Plaintiff's claims since she filed for disability benefits before March 27, 2017. See Cherry v. Comm'r of Soc. Sec. Admin., 813 Fed.Appx. 658, 661 (2d Cir. 2020) (citing 20 C.F.R. § 404.1502(a)(7)). “Nevertheless, an ALJ should consider evidence from “other sources,” . on important issues like the severity of an impairment and any related functional effects.” Susan B. v. Comm'r of Soc. Sec., No. 1:20-CV-00546(EAW), 2021 WL 3266231, at *4 (W.D.N.Y. July 30, 2021).

On January 25, 2019, Plaintiff returned to NP Ankrah for a follow-up appointment and reported that she was “not overly depressed or anxious” and “fine on the current regimen of medication,” with fair sleep, appetite and mood. (R. 704).

On February 19, 2019, Plaintiff visited Dr. Gaines, complaining of left hip pain and tendonitis in her right wrist. (R. 673). Her hip pain began after she suffered a fall four days earlier and was “most prominent on the lateral aspect of the hip” and radiated “into her groin.” (Id.). The pain was exacerbated with movement, (R. 673), and examination revealed positive hip impingement test, with tenderness “over the greater trochanter” but not over her anterior hip, (R. 674). Examination also revealed normal body habitus, normal gait, no swelling, full extension, flexion, and rotation, negative FABER test, negative Ober test, intact sensation, 4/5 muscle strength with abduction, and 5/5 adduction and hip flexion. (Id.). Dr. Gaines reviewed Plaintiff's left hip X-ray and found mildly dysplastic acetabular morphology but no evidence of arthritis, no fractures or dislocations, no atypical soft tissue shadows, and normal hip morphology. (Id.). Assessed with “left hip pain,” Plaintiff decided to begin physical therapy with over-the-counter medication. (R. 674-75).

2. After February 22, 2019

On February 22, 2019, Plaintiff had an appointment with Dr. Medici, complaining of hip, groin, and back pain that was not being relieved by physical therapy or Percocet. (R. 725). Examination revealed Plaintiff's left hip was tender on palpation and exhibited passive flexion of 80 degrees and rotation of 10 to 20 degrees. (R. 726). Dr. Medici assessed Plaintiff with arthralgia in the left pelvis and trochanteric bursitis in her left hip, and prescribed continued physical therapy and Celebrex. (R. 726-27).

On February 25, 2019, Plaintiff saw NP Ankrah again, reporting that “her anxiety [was] coming back,” and she was “getting nasty with people around her.” (R. 705). Valium made her drowsy, and gabapentin had limited results, so NP Ankrah prescribed Buspirone. (Id.).

On February 26, 2019, Plaintiff visited Dr. Gaines again, reporting lower back pain that started two days earlier after loading her dishwasher and that was exacerbated with sitting and lifting her feet onto the couch, but alleviated slightly when lying flat or standing. (R. 676). Plaintiff found no relief with a muscle relaxer, but found that Celebrex and Percocet helped. (Id.). She reported being unable to lift her left leg, and noted the pain was worse on her left side. (Id.). Dr. Gaines described the “lower back pain” as an “extremely common problem,” often treated with “physical therapy, core strengthening, and use of anti-inflammatory medications.” (R. 678).

On March 20, 2019, Plaintiff saw her psychiatrist, Dr. Raymond, for a follow-up visit at which he reviewed her medications and their side effects, and completed a mental status exam that again revealed normal findings. (R. 706).

On June 20, 2019, Plaintiff visited Dr. Gamburg with recurrent pain in her cervical region. (R. 687). Examination revealed significant tenderness at C2-C3, which increased upon extension of 20 to 25 degrees. (Id.). Dr. Gamburg diagnosed Plaintiff with facet arthropathy of the cervical area and cervical spondylosis, and performed another rhizotomy at C2-C3. (R. 687, 693).

At follow-up visits with NP Ankrah in June, July, and October 2019, and January 2020, Plaintiff reported she was taking her psychiatric medication “as prescribed without any side effects.” (R. 707-10).

On January 13, 2020, Plaintiff underwent additional imaging tests, and Dr. David M. Ginsburg, M.D. found that Plaintiff's T9-T12 vertebral bodies had fused anteriorly. (R. 878).

On January 17, 2020, Plaintiff was assessed by Dr. Murphy, who noted that Plaintiff experienced dizziness, weakness, and shortness of breath after undergoing a surgical procedure complicated by blood loss. (R. 865). Dr. Murphy diagnosed Plaintiff with POTS, Tricuspid valve prolapse without significant regurgitation, and Ehlers-Danlos. (Id.).

On February 18, 2020, Plaintiff visited Dr. Medici, who found Plaintiff's patellofemoral region on her right knee was tender on palpation. (R. 728-29). However, Dr. Medici found no tenderness laterally or at the medial joint line, no effusion, no erythema, no warmth, no crepitus, no motor weakness, no anterior or posterior drawer sign, negative Lachman test, and negative McMurray test. (R. 729). “Pain was elicited at the extreme limits of the range of motion,” and X-rays of her knee were “without evidence of acute osteoarticular abnormality.” (Id.). Dr. Medici assessed her with “chondromalacia of right patella” and ordered physical therapy. (R. 729-30).

On March 5, 2020, Dr. Gamburg evaluated Plaintiff, and found Plaintiff's range of motion was restricted “with neck flexion and extension.” (R. 921). Plaintiff was diagnosed with bilateral knee osteoarthritis and bursitis. (Id.).

B. Medical Opinions

1. David Gamburg, M.D. - Treating Physician

Dr. Gamburg began treating Plaintiff for her pain on or before May 20, 2016. (R. 293). On August 31, 2018, Dr. Gamburg completed a questionnaire in which he opined that Plaintiff's cervical spondylosis, sciatica, and thoracic outlet syndrome prevented her from standing and walking more than 3 hours in a workday and sitting for more than 2 hours in a weekday. (R. 409). Dr. Gamburg indicated that Plaintiff could constantly lift up to 10 pounds; frequently balance, reach, feel, and handle; and occasionally lift up to 20 pounds, climb, bend, stoop, crouch, crawl, kneel, and push or pull; but could never lift more than 20 pounds. (R. 409-11).

2. Michael D. Vardy, M.D. - Treating Physician

Dr. Michael D. Vardy, M.D. (“Dr. Vardy”) began treating Plaintiff prior to April 24, 2019, and last examined her on January 18, 2020, before filling out the impairment questionnaire on February 21, 2020. (R. 732-33). Dr. Vardy noted Plaintiff suffered from prolapse and incontinence, but opined that she was “able to resume normal activities” and experienced “no limitations” in her ability to do work-related physical activities. (Id.).

3. Julia Kaci, M.D. - Consultative Examiner

Dr. Julia Kaci, M.D. (“Dr. Kaci”) conducted a consultative internal medicine examination on October 12, 2016. (R. 272-75). Plaintiff's chief complaint was back pain, which started when she was twenty-four years old and worsened over the years. (R. 272). Diagnosed with scoliosis and kyphosis, Plaintiff reported dull, achy, constant pain in her thoracic spine that could become “sharp or burning to the point that the back gets numb.” (Id.). Despite physical therapy, chiropractic care, acupuncture, and periodic injections, Plaintiff rated her pain as an 8 to 10 out of 10, which lessened to 5 out of 10 with medications. (Id.). Any upright position caused pain, and Plaintiff reported relief only when lying down. (Id.). The back pain radiated to her lower back and neck, but not to her legs. (Id.). Plaintiff reported that she cooked twice a week, cleaned three times a week, did laundry and shopping once a week, and performed childcare daily. (R. 273).

Plaintiff appeared in no acute distress, needed no help changing for the exam, could walk on heels and toes, and could rise from a chair without difficulty, but could only squat halfway. (Id.). Examination revealed fingers and toes with bluish discoloration, “almost non-existent” hand muscles, intact hand and finger dexterity, 5/5 bilateral grip strength, and 4+/5 upper and lower extremity strength. (R. 273-74). Plaintiff had full range of motion in her cervical and lumbar spine with no pelvic tilt, negative straight leg raising test, and stable and nontender joints. (R. 274). X-rays showed scoliosis in her lumbosacral spine, and straightening of her cervical spine. (Id.).

Based on her examination, Dr. Kaci diagnosed Plaintiff with chronic back pain, kyphoscoliosis, hypothyroidism, and Raynaud's, with stable prognosis. (R. 274-75). Dr. Kaci opined that Plaintiff had moderate limitations in standing, squatting, lifting, carrying, pushing, pulling, and kneeling, and mild limitations in bending, sitting, walking, and going up and down stairs. (R. 275). Plaintiff also needed to avoid cold temperatures because of her Raynaud's. (R. 275).

4. Michael Healy, M.D. - Consultative Examiner

Dr. Michael Healy, M.D. (“Dr. Healy”) conducted a consultative internal medicine examination of Plaintiff on June 29, 2018. (R. 280-83). Plaintiff's chief complaint was back pain, Ehlers-Danlos, and POTS. (R. 280). No surgery had been offered to her for her back pain. (Id.). Plaintiff reported that she had difficulty with pain when cooking, cleaning, laundering, and shopping, but she could shower, bathe, and dress herself. (R. 281).

Examination revealed no acute distress, normal gait and stance, and an ability to walk on heels and toes, squat fully, change for the exam, and get on and off the exam table without help. (R. 281). However, she could not rise from a chair without difficulty. (Id.). She exhibited full range of motion in her hips, knees, ankles, shoulders, elbows, forearms, and wrists, and had intact hand and finger dexterity, with stable and non-tender joints, 4/5 strength in her extremities, and 5/5 grip strength. (R. 281-82). Her cervical and lumbar spine showed “full flexion, extension, lateral flexion, and full rotary movement bilaterally,” but also showed dorsal cervical scoliosis with “perhaps early developing dorsal kyphosis.” (R. 281). X-rays from July 9, 2018 showed mild scoliosis in her lumbosacral spine, straightening of her cervical spine, and scoliosis in her thoracic spine. (R. 282).

Based on the examination, Dr. Healy diagnosed Plaintiff with POTS, scoliosis, kyphosis, bilateral pes planus, Ehlers-Danlos, with good prognosis, and opined that Plaintiff had moderate limitations for sitting, standing, walking, climbing stairs, bending, and lifting. (Id.).

5. Nina Spooner, M.D. - Consultative Examiner

Dr. Nina Spooner, M.D. (“Dr. Spooner”) conducted a consultative internal medicine examination on July 27, 2020. (R. 817-21). Plaintiff's chief complaint was Ehlers-Danlos and POTS, (R. 817), and she reported a history of back pain and syncopal episodes. (R. 817). She also had dull pain and muscle spasms in her neck, upper back, and shoulders, as well as pain in her foot that she rated a 7 out of 10. (R. 818). The lower back pain was rated at a 7 out of 10, worsened when rising from a sitting position, and limited Plaintiff to very little cleaning, cooking, laundry, and grocery shopping. (R. 818-19). Plaintiff's husband and mother-in-law cooked and shopped; a housekeeper cleaned and did the laundry, and Plaintiff used a shower chair. (R. 819).

Examination revealed that Plaintiff was in mild distress with unsteadiness, slow and slightly broad-based gait, ability to squat halfway, and mildly kyphotic stance. (R. 820). She required her husband's assistance to change for the exam, got on and off the exam table a bit slowly, and declined to do a heel-toe walk. (Id.). However, Plaintiff used no assistive device and was able to rise from a chair without difficulty. (Id.). As before, Plaintiff's cervical spine showed full flexion and extension, but had limited lateral flexion and rotary movement. (Id.). Plaintiff's lumbar spine showed full extension, but also unsteadiness and limited lateral flexion and rotary movement. (R. 820-21). Plaintiff also had a negative sitting straight leg raise test. (R. 821).

Dr. Spooner diagnosed Plaintiff with chronic pain in multiple sites, kyphoscoliosis, Ehlers-Danlos, POTS, depression, irritable bowel syndrome, and migraine headaches, with fair prognosis. (R. 821). Dr. Spooner opined that Plaintiff had moderate limitations in sitting, standing, walking, climbing stairs, squatting, bending, heavy lifting, carrying, pushing, and pulling, and mild limitation in her balance. (R. 822). She also determined that Plaintiff may experience schedule interruptions due to her migraine headaches. (Id.).

6. Melissa Antiaris, Psy.D. - Consultative Examiner

Dr. Melissa Antiaris, Psy.D. (“Dr. Antiaris”) conducted a consultative psychiatric examination on July 27, 2020. (R. 812-15). Plaintiff reported experiencing various issues with sleep, including difficulty falling asleep, oversleeping, and sleep paralysis, as well as having increased appetite, fatigue, pain, depression, anxiety, and claustrophobia. (R. 812). She reported having at least three panic attacks a week for the past year and experiencing difficulties with her short-term memory and concentration. (R. 812-13).

Examination revealed normal appearance, speech, affect, mood, sensorium, orientation, insight and judgment. (R. 813-14). She exhibited coherent thought processes and intact attention and concentration, but her recent and remote memory skills were mildly impaired, and her cognitive functioning was judged to be in the average/below average range. (Id.).

Based on the examination, Dr. Antiaris diagnosed Plaintiff with panic disorder and unspecified depressive disorder, and found Plaintiff had no limitations in her ability to understand, remember, and apply simple directions and instructions; to use reason and judgment to make work-related decisions; to interact adequately with supervisors, coworkers, and the public; to sustain concentration; to perform a task at a constant pace; to sustain an ordinary routine and regular attendance at work; to maintain personal hygiene; and to be aware of normal hazards. (R. 814-15). Plaintiff did show, however, moderate limitations in her ability to regulate emotions, control behavior, and maintain well-being, (id.), and mild limitations in her ability to understand, remember, and apply complex directions and instructions, (R. 814). These “[d]ifficulties [were] caused by lack of motivation.” (R. 815).

7. Parthena Kallopenes - Physician Assistant

In July 2016, Physician Assistant (“PA”)⁶ Kallopenes completed a medical assessment of Plaintiff's ability to do work-related activities. (R. 244-47). With respect to Plaintiff's physical limitations, PA Kallopenes assessed that Plaintiff's cervical radiculitis facet syndrome prevented her from carrying or lifting any weight, standing or walking any hours, sitting more than one hour, reaching, handling, pushing or pulling, climbing, bending, balancing, stooping, crouching, kneeling, and crawling. (R. 245-46). Moreover, Plaintiff experienced frequent headaches and would be unable to move machinery or experience humidity and temperature extremes. (R. 246-47).

6 Though the regulations were amended in 2017 to add physician assistants to the list of acceptable medical sources, these new regulations do not apply to Plaintiff's claims since she filed for disability benefits before March 27, 2017. See 20 C.F.R. § 404.1502(a)(8); Genier v. Astrue, 298 Fed.Appx. 105, 108 (2d Cir. 2008) (“[P]hysicians' assistants are defined as ‘other sources' whose opinions may be considered with respect to the severity of the claimant's impairment and ability to work, but need not be assigned controlling weight.”).

PA Kallopenes also opined that Plaintiff's “exacerbated pain syndrome” prohibited focus, preventing her from maintaining attention and concentrating, functioning independently, dealing with work stress, relating to coworkers, dealing with the public, (R. 244), and understanding, remembering, and carrying out detailed job instructions, (R. 247). However, Plaintiff retained “fair” ability to use her judgment, (R. 244), and understand, remember, and carry out simple and complex job instructions, (R. 247). Plaintiff had a “good” ability to follow work rules, interact with supervisors, and adjust personally and socially to situations. (R. 244, 247).

8. Randee Shuman - Social Worker

Licensed Clinical Social Worker Randee Shuman (“LCSW Shuman”)⁷ first treated Plaintiff on September 30, 2019, and saw her on August 31, 2020, (R. 648), before filling out a medical source statement on September 8, 2020, (R. 829-31).

7 Social workers are not considered acceptable medical sources even under the new regulations. Rivas v. Berryhill, No. 1:17-CV-05143(ALC), 2018 WL 4666076, at *10, n.6 (S.D.N.Y. Sept. 27, 2018) (citing 20 C.F.R. § 404.1502(a)). “Nevertheless, an ALJ should consider evidence from “other sources,” such as social workers, on important issues like the severity of an impairment and any related functional effects.” Susan B. v. Comm'r of Soc. Sec., No. 1:20-CV-00546(EAW), 2021 WL 3266231, at *4 (W.D.N.Y. July 30, 2021).

Plaintiff reported isolating, finding it difficult to travel and leave her home, and suffering occasional panic attacks. (R. 830). She also reported being unable to cook and clean due to sleep disturbances, and she explained that a lack of concentration, focus, and task retention prevented her from following a work schedule. (Id.). Upon examination, Plaintiff exhibited no problems with her attitude, appearance, behavior, speech, thought, perception, orientation, or immediate memory, but Plaintiff's remote memory, attention, concentration, insight, and judgment were impaired. (R. 829-30). Her mood and affect were “labile, anxious, irritable” with “periods of crying.” (R. 829). Moreover, the COVID-19 pandemic had “added to her mental health issues,” as she exhibited additional anxiety and fear. (R. 831).

Plaintiff was diagnosed with generalized anxiety disorder and Ehlors-Danlos Type 3, and received a score of 55 on the Global Assessment of Functioning scale. (R. 829). LCSW Shuman found that “[m]edical issues ha[d] continually impacted [Plaintiff's] mental health.” (R. 831). She was unable to retain information; lacked focus and concentration; and was “unable to follow through with routine due to sleep disturbances and symptoms of withdrawal from people.” (R. 830). Plaintiff also had a fear of large groups. (Id.). Finally, Plaintiff exhibited limitations in her ability to adapt and was unable to be consistent with any task or follow through with it. (R. 831).

9. A. Auerbach, M.D. - State Agency Medical Consultant

Dr. A. Auerbach, M.D. (“Dr. Auerbach”) completed the physical Residual Functional Capacity (“RFC”) assessment on August 3, 2020. (R. 478-80). Dr. Auerbach determined that Plaintiff could occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, and stand, walk, and sit for about 6 hours in an 8-hour workday with normal breaks. (R. 478). Dr. Auerbach also found Plaintiff would be able to frequently stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, and scaffolds, and her ability to push, pull, and balance was unaffected. (R. 478-79). He found Plaintiff did not have any manipulative, visual, communicative, and environmental limitations. (R. 479).

10. T. Bruni, Ph.D. - State Agency Psychological Consultant

Dr. T. Bruni, Ph.D. (“Dr. Bruni”) completed a mental RFC assessment on September 9, 2020, (R. 480-83), and determined that Plaintiff had mild limitations in understanding, remembering, or applying information and interacting with others; moderate limitations in concentrating, persisting, or maintaining pace; but no limitations in her ability to adapt or manage herself. (R. 475-76).

Dr. Bruni concluded that (1) although Plaintiff struggled to understand instructions with a high degree of complexity, she “appear[ed] capable of understanding both simple and some more detailed instructions;” (2) although Plaintiff is “somewhat distractible,” she was not precluded from “sustain[ing] a normal work day or work week;” (3) Plaintiff could adequately engage in “basic interactions to meet work-related needs;” and (4) although Plaintiff struggled with adaptation, she was able to cope with changes and make decisions without significant limitations. (R. 482-83).

C. Non-Medical Evidence

1. Plaintiff's Function Reports

Plaintiff completed two Function Reports, one in September 2016, (R. 180-87), and the other in March 2020, (R. 619-29). In 2016, Plaintiff's impairments did not affect her ability to care for herself, do light cleaning and laundry, and light cooking, but she couldn't cook dinner as often and stated that she often ate dinner out if she was in pain. (R. 181-82). She was able to “do what mothers do” for her children, going to the park with them on a “regular basis,” (R. 181, 184), albeit in pain and with her husband's help, (R. 181). She was also going out daily by car, getting groceries once or twice a week, and going for walks when she was able. (R. 183-84). However, she reported being unable to walk more than two blocks or 5 to 10 minutes before needing to stop and rest, (R. 186), and being unable to lift without pain, stand for long, sit for the duration of a movie, or kneel because of difficulties with getting back up, (R. 185). She often stopped halfway through a chore and either did it later or the next day, (R. 186), and had a history of bosses and teachers having problems with her need to sit or stand at “unacceptable times,” (R. 187).

By 2020, Plaintiff's reported symptoms had gotten worse. She was no longer able to lift, squat, reach, kneel, or use her hands, and she tried to avoid climbing stairs. (R. 624). She reported not being able to sit for more than fifteen minutes, nor being able to stand for more than a few minutes. (Id.). She didn't leave the house more than twice a week due to her agoraphobia and pain, and her husband drove her because her anxiety and hand pain prevented her from gripping the driving wheel. (R. 622). She continued to take care of her son when able but noted that her mother-in-law and husband helped her. (R. 620).

2. Plaintiff's Testimony

Plaintiff's first hearing before the ALJ was on August 27, 2018 (“2018 hearing”). (R. 3267). Upon appeal, the ALJ held another hearing on February 1, 2021 (“2021 hearing”). (R. 440).

At the 2018 hearing, Plaintiff was represented by Christopher Latham, Esq. (R. 35). Plaintiff testified that she worked in the hairdressing and cosmetology industry for about fifteen years. (R. 39). During a typical day at the salon, Plaintiff would shampoo hair, do blow outs and cut hair, which required her to stand all day, rarely sit, and lift and carry nothing heavier than a half-gallon of developer. (Id.). She testified that she stopped working because the medication that managed her pain and allowed her to work “made [her] sick,” and risked “deteriorat[ing] further” her neck and spine issues. (R. 40, 53). At the time, she recalled taking “a few Percocets” per day and antidepressant and anti-anxiety medication. (Id.). She had tried Lyrica but experienced side effects that almost resulted in hospitalization, and muscle relaxers were “near impossible to take” while working. (Id.).

Plaintiff stated that she was diagnosed with Ehlers-Danlos, which explained why she pulled her muscles and got injured “very easily,” and experienced joint and muscle pain “regularly.” (R. 41). She reported receiving injections around three times a year from Dr. Gamburg to “kill[]” the nerves and alleviate muscle pain. (R. 41, 49). She also experienced palpitations “throughout the day” and lightheadedness, and she received treatment for these POTS symptoms from Dr. Murphy. (R. 41-42). Plaintiff was also diagnosed with Raynaud's, a “circulation issue” that caused her hands and feet to “always” be cold, in pain, and “usually” blue, (R. 43); and sciatica, which prevented her from bending her back, (R. 45-46). Plaintiff experienced headaches every day, sometimes lasting for hours; they were caused both by eye strain and neck pain, and she alleviated them with ice. (R. 44). She also had a history of seeing psychiatrists but reported having trouble finding a new psychiatrist after her last one had left a few months earlier. (R. 40-41).

Plaintiff described the time she was off medication during her pregnancy from 2015 through the birth of her son as “incredibly difficult.” (R. 52). She was in “a lot of pain,” unable to even take Advil because she “didn't want to risk anything happening to [her son],” and was essentially on “bed rest.” (Id.). After he was born, she remained unable to walk “for a few months” because of “muscle problems” with the pelvic floor, (id.), but she immediately resumed medications which helped improve her symptoms, (R. 53).

Every day, Plaintiff “[didn't] do much,” alternating between laying in bed and sitting on the couch. (R. 44). She did not participate in any clubs or organizations, (R. 46), had no activities outside the home, (id.), and could not participate in family or other social holiday gatherings, (R. 51). Plaintiff drove only on “rare” occasions, “maybe once every three months,” (R. 51), because neck pain prevented her from looking left and right and lower back pain made sitting difficult, (R. 46). She testified that she was unable to “really care for” her two-year-old son, who was dropped off and picked up from daycare by her husband or mother-in-law. (R. 4445). She relied on them to also do the shopping and cooking for the household. (R. 45). She was unable to carry a gallon of milk because it was “too much weight” and would hurt her neck and shoulders. (R. 49). Plaintiff also reported being unable to clean the home because she would “pull muscles in [her] back” and could not “bend to do anything.” (R. 45). If Plaintiff hurt her hip muscles by bending, it resulted in her inability to “move at all for like three or four days,” becoming “totally bedridden.” (R. 46). Her husband also did the laundry because the machines were downstairs, and Plaintiff was unable to go up and down stairs due to back, leg, and knee pain. (R. 48). She was able, however, to take a shower, wash her hair, and put on shirts, bras, and pants, but she could not dry her hair, shave her legs, or put on socks and shoes for fear of pulling a muscle. (R. 50).

When asked if she could imagine working “a very easy job” that did not require lifting, carrying, or standing, Plaintiff testified that she would be unable to do that job full-time because she felt “very weak all the time” and was in constant pain, making it hard to concentrate and stay seated for a period of time; pain medications were unable to alleviate the pain. (R. 47). She estimated that she could sit for twenty minutes and stand for up to ten minutes before needing to lay down. (R. 47-48). She was able to walk to different rooms in her house (albeit not up and down stairs), but she was unable to walk around the neighborhood. (R. 48). She noted an inability to pick up anything from the floor, requiring her husband to place shoes and objects on the nightstands, because she was unable to stand, bend down, and get back up without pulling a muscle. (R. 48-49).

At the 2021 hearing, Plaintiff testified that her condition had remained the same. (R. 448). Plaintiff continued to experience physical pain managed with injection treatments and pain medications, and experienced worsened symptoms of depression and anxiety, for which she also continued to receive regular treatments. (Id.).

Plaintiff had migraines a couple of times per week, which she was unable to completely manage using Botox injections, mirtazapine, and Advil, resulting in her need to “lay in bed in a particular way” without light and sounds for at least several hours. (R. 448-49, 457). Plaintiff also continued to struggle with spinal, neck, and shoulder pain that sometimes caused pain on the side of her face, which worsened with any activity, including looking in a direction for more than a few minutes. (R. 449-50). In order to look at a computer monitor or television screen, Plaintiff needed to assume a reclining position to “give [her] muscles a break,” and estimated being able to hold her head straight up without any support for a maximum of five to ten minutes. (R. 45152). POTS also caused dizziness but her doctor declined to prescribe medication due to risks to her heart at her age; Plaintiff would sit until the dizziness went away. (R. 456-57). Her hand use was also limited by her Ehlers-Danlos diagnosis, which caused “really bad” cramps; upon cramping, Plaintiff needed to stop using her hands and take a muscle relaxer. (R. 452). Plaintiff remained unable to do the laundry, cook, clean, vacuum, make the bed, or send more than “little texts,” (R. 452-53), because it was “incredibly painful” and she didn't “want to risk getting hurt.” (R. 452). She testified that both she and her doctors “knew” that with Ehlers-Danlos, her conditions were “going to just get worse.” (R. 457-58).

As for her mental health, Plaintiff suffered “random panic attacks” and anxiety triggered by leaving the house or attending a scheduled doctor's appointment because she had a history of “complications after some surgeries and some procedures.” (R. 453-54). Plaintiff also testified that “[l]arge crowds [were] a no-go,” particularly around grocery and pharmacy stores, and holding conversations with people other than her husband and mother-in-law was “difficult.” (R. 454). Her depression also prevented Plaintiff from focusing and concentrating, making her unable to watch television or read a book, and caused weight gain. (R. 455, 459).

3. The Vocational Expert's Testimony

At the 2018 hearing, vocational expert (“VE”) Droste identified Plaintiff's past work as a cosmetologist, which was light work. (R. 58). The ALJ posed a hypothetical to VE Droste, asking her to assume an individual of Plaintiff's age, education and vocational history, with the following limitations:

[limited to] light exertional level[;] . . . [a] sit/stand option [such that] after every half an hour having to stand up at the workstation, [Plaintiff could] alternate positions and sit back down, not being away from the workstation or being off task[;] can never climb ladders, ropes or scaffolds[;] occasionally climb ramps, stairs, balance, stoop, kneel, crouch and crawl[;] and is to avoid hazards such as moving machinery and is further limited to understanding, remembering and carrying out simple, routine, repetitive, noncomplex tasks with an SVP (Specific Vocational Preparation) of 2 or below.

(R. 59). VE Droste opined that Plaintiff would be unable to perform her past work because the cosmetologist job was “a skilled position” that required more than “simple, repetitive tasks.” (Id.). However, VE Droste testified that Plaintiff could perform the following light jobs: cashier II, ticket taker, and ticket seller. (R. 60).

When the ALJ added to the hypothetical unscheduled breaks that would result in Plaintiff being off task for more than 15% of a workday, VE Droste said that no jobs would be available because she did not believe an employer would allow an unskilled worker to be off task “63 minutes over and above scheduled breaks.” (R. 60-61).

The ALJ changed the hypothetical, replacing light work with sedentary work, and keeping all other postural and non-exertional limitations. (R. 61). VE Droste opined Plaintiff would be able to work as a charge-account clerk, order clerk for food and beverage, and document preparer. (Id.).

Plaintiff's attorney asked if any of the cited jobs could be performed if the hypothetical also included an inability to lift even zero to five pounds occasionally. (R. 62). VE Droste testified that even with the additional lift/carry limitation, (R. 63), Plaintiff could be a ticket taker, ticket seller, charge-account clerk, order, clerk, and document preparer, (R. 62).

VE Droste also testified that “an individual who could never reach, could never feel and handle and could never push and pull” or needed to “lay down for more than an hour during the workday” would be unable to perform any of the cited jobs. (R. 63).

At the 2021 hearing, unlike at the previous hearing, the ALJ determined that Plaintiff had no “past work” because there were no significant earnings in the record. (R. 465). The ALJ posed a hypothetical to VE Cogliano, asking her to assume an individual of Plaintiff's age, education and vocational history, with the following limitations:

limited to sedentary exertional level[;] can never climb ladders, ropes, or scaffolds[;] occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl[;] . . . [requires a] sit/stand option after 30 minutes, having to stand up for one to two minutes and then sit back down, not being off task[;] . . . limited frequently to rotation, extension of the neck, and flexion of the neck[;] . . . further limited to . . . avoid hazards such as moving machinery[;] and is further limited to working in a low-stress environment, which [is] define[d] as simple, routine, repetitive, non-complex tasks involving . . . occasional decision-making, judgment and . . . and routine changes in a workplace setting[;] [and] occasional contact with supervisors, coworkers and the general public.

(R. 465-66). VE Cogliano testified that Plaintiff could hold the following positions: document preparer, cable worker position, and assembler position. (R. 466). She opined that the available positions nationwide should be reduced by 50% due to Plaintiff's sit/stand option, frequent use of neck, and occasional contact with other persons. (Id.). The ALJ changed the hypothetical, and VE Cogliano determined no jobs were available to a person who was off task for more than 50% of a workday or absent more than twice a month. (R. 466-67). When the ALJ's hypothetical was changed such that Plaintiff was limited to “occasional” rotation of the neck instead of “frequent” use, there were no jobs available to Plaintiff. (R. 467). There would also be no jobs, if the original hypothetical also included a limitation of occasional handling, fingering, and feeling with the bilateral upper extremities, or if the individual was only able to sit, stand, or walk for six hours. (R. 468).

D. The ALJ's Decision

ALJ Singh first determined that Plaintiff met the Act's insured status requirements through March 31, 2020. (R. 420). ALJ Singh then applied the five-step procedure established by the Commissioner for evaluating disability claims. See 20 C.F.R. § 404.1520(a). (R. 418-20). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date on May 5, 2016. (R. 418, 420). At step two, the ALJ found that Plaintiff had eight severe medically determinable impairments: scoliosis and cervical radiculitis, Raynaud's, POTS, Ehlers-Danlos, facet arthropathy of the cervical spine, cervical spondylosis, right knee chondromalacia patella, depressive disorder, and left greater trochanter bursitis. (R. 420). The ALJ also found that Plaintiff had non-severe gastrointestinal, endocrine, and gynecological impairments. (Id.). At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. (R. 420-22).

The ALJ then determined that starting from Plaintiff's alleged onset date until February 22, 2019, Plaintiff had the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) except:

she could never climb ladders, ropes, or scaffolds. She could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. She needed to avoid hazards such as moving machinery. The claimant required a sit/stand option [] after every 30 minutes of sitting, she must stand for one to two minutes, as long as it did not require her to be off-task or away from the workstation. She was limited to frequent flexion, extension, and rotation of the neck. She could work at low stress jobs, defined as jobs containing no more than simple, routine, and repetitive noncomplex tasks, involving only occasional decision making, judgment, and routine changes in a work place setting, with occasional contact with supervisors, coworkers, and the general public.

(R. 422).

The ALJ determined that beginning February 22, 2019, Plaintiff had the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) except:

she can never climb ladders, ropes, or scaffolds. She can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. She needs to avoid hazards such as moving machinery. The claimant requires a sit/stand option[] after every 30 minutes of sitting, she must stand for one to two minutes, as long as it did not require her to be off-task or away from the workstation. She is limited to frequent flexion, extension, and rotation of the neck. She can work at low stress jobs, defined as jobs containing no more than simple, routine, and repetitive non-complex tasks, involving only occasional decision making, judgment, and routine changes in a work place setting, with occasional contact with supervisors, coworkers, and the general public. She will be off-task more than 15% of a typical work day and absent from work more than two days per month.

(R. 427-28).

In arriving at the RFC, the ALJ considered all of Plaintiff's symptoms and their consistency with the objective medical evidence and other evidence in the record. (R. 422). The ALJ concluded that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record prior to February 22, 2019.” (R. 427).

The ALJ reviewed the opinion evidence in the record, giving “great weight” to Dr. Spooner and LCSW Shuman's opinions; “some weight” to Drs. Kaci, Healy, and Antiaris' opinions; and “minimal weight” or “little weight” to Drs. Vardy, Auerbach, and Bruni's opinions. (R. 429-30). The ALJ gave mixed weight to Dr. Gamburg's and PA Kallopenes's opinions, assigning great weight to some of their limitations and less or little weight to others. (R. 426-27).

At step four, the ALJ found Plaintiff had no past relevant work, (R. 430), and at step five, the ALJ determined that, based on Plaintiff's age, education and job skills and the VE's testimony, Plaintiff retained the RFC to perform unskilled sedentary jobs-i.e., document preparer, table worker, and assembler-prior to February 22, 2019, but was unable to perform any jobs with significant numbers in the national economy after February 22, 2019, (R. 430-31). Thus, the ALJ concluded that Plaintiff was not disabled prior to February 22, 2019 but became disabled on that date. (R. 432).

II. DISCUSSION

Plaintiff asserts that remand is warranted because in determining Plaintiff's pre-February 2019 RFC, the ALJ improperly rejected Plaintiff's treating sources without sufficient analysis and improperly dismissed Plaintiff's subjective statements “without as much as even a line of analysis.” (Pl. Br. at 16-20⁸). The Commissioner denies any defective reasoning, maintaining that the ALJ properly weighed the medical opinions and that substantial evidence supports the ALJ's credibility findings. (Comm'r Br. at 11-20).

8 All page citations to the parties' briefs refer to the page numbers assigned upon the electronic filing of the documents.

A. Legal Standards

A claimant is disabled if she “is unable . . . ‘to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.'” Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)). The Social Security Administration (“SSA”) has enacted a five-step sequential analysis to determine if a claimant is eligible for benefits based on a disability:

(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a [RFC] assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's [RFC], age, education, and work experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008)); 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). The claimant has the general burden of proving that they are statutorily disabled “and bears the burden of proving his or her case at steps one through four.” Cichocki, 729 F.3d at 176 (quoting Burgess, 537 F.3d at 128). At step five, the burden then shifts “to the Commissioner to show there is other work that [the claimant] can perform.” Brault v. Soc. Sec. Admin. Comm'r, 683 F.3d. 443, 445 (2d Cir. 2012).

When reviewing an appeal from a denial of SSI or disability benefits, the Court's review is “limited to determining whether the SSA'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) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); see also 42 U.S.C. § 405(g). Substantial evidence means “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)). Put another way, a conclusion must be buttressed by “more than a mere scintilla” of record evidence. Id. (quoting Consolidated Edison, 305 U.S. at 229). The substantial evidence standard is “very deferential” to the ALJ. Brault, 683 F.3d at 448. The Court does not substitute its judgment for the agency's “or determine de novo whether [the claimant] is disabled.” Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (alteration in original) (quoting Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)).

However, where the proper legal standards have not been applied and “might have affected the disposition of the case, [the] court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). Therefore, “[f]ailure to apply the correct legal standards is grounds for reversal.” Id.

B. The ALJ's Duty to Develop the Record

As a threshold question, the court must determine “[w]hether the ALJ has satisfied [his] duty to develop the record.” Smoker v. Saul, 19-CV-1539(AT)(JLC), 2020 WL 2212404, at *9 (S.D.N.Y. May 7, 2020). “Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.” Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)). The regulations define “complete medical history” to mean, at a minimum, “the records of [a claimant's] medical source(s) covering at least the 12 months preceding the month in which” a claim is filed. 20 C.F.R. §§ 404.1512(b)(ii) (2017), 416.912(b)(1)(ii) (2017). “This duty is present even when a claimant is represented by counsel.” Atkinson v. Barnhart, 87 Fed.Appx. 766, 768 (2d Cir. 2004). “Where there are gaps in the administrative record, remand to the Commissioner for further development of the evidence” is appropriate. Sobolewski v. Apfel, 985 F.Supp. 300, 314 (E.D.N.Y. 1997). “[W]here there are no obvious gaps in the administrative record, and where the ALJ already possesses a ‘complete medical history,' the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim.” Rosa, 168 F.3d at 79 n.5 (citing Perez, 77 F.3d at 48); see also Pellam v. Astrue, 508 Fed.Appx. 87, 90 (2d Cir. 2013).

Here, I respectfully recommend finding that there are no obvious gaps in the record.⁹ The record consists of extensive medical records, including treatment records and evaluations of Plaintiff's physical and mental impairments, (R. 226-408, 667-731, 735-811, 824-28, 836-921); medical opinions from treating physicians and other sources, (R. 244-47, 272-75, 280-83, 40911, 478-83, 732-33, 812-14, 829-31, 817-21); the VE's testimony, (R. 57-63, 462-68); Plaintiff's testimony, (R. 39-54, 448-459); and Plaintiff's function report, (R. 180-87, 619-31). These records span from 2015 to 2021, covering more than the required 12 months prior to July 2016. Furthermore, Plaintiff's attorney did not object to the evidence that was available at the hearing on any grounds, (R. 445), and after being given extra time to produce additional documents, confirmed that all medical evidence had been submitted, (R. 666); see Jordan v. Comm'r of Soc. Sec., 142 Fed.Appx. 542, 543 (2d Cir. 2005) (finding that where Plaintiff's counsel volunteered to secure certain records, the ALJ kept the record open to allow counsel to do so, and Plaintiff made no request for the ALJ's assistance in securing additional evidence, the Court “cannot say that the ALJ failed to discharge his duty to develop the record.”). Accordingly, I respectfully recommend finding that the ALJ has fulfilled her duty to develop the record.

9 I also respectfully recommend concluding that the lack of a medical opinion in the record regarding Plaintiff's mental impairments is not grounds for remand. It is true that an ALJ has a heightened duty to develop the record where psychiatric impairments are at issue, see, e.g., Munnings-Bah v. Saul, No. 19-CIV-3510(LJL)(RWL), 2020 WL 5755065, at *12 (S.D.N.Y. Sept. 14, 2020), report and recommendation adopted sub nom, and where a treating physician is concerned, see, e.g. Craig v. Comm'r of Soc. Sec., 218 F.Supp.3d 249, 268 (S.D.N.Y. 2016). However, a lack of a formal source statement from a treating physician does not always require remand if the ALJ can glean an informal assessment of the plaintiff's limitations from the treating physician's notes. See Tankisi v. Comm'r of Soc. Sec., 521 Fed.Appx. 29, 34 (2d Cir. 2013) (summary order); Sanchez v. Colvin, No. 13-CV-6303(PAE), 2015 WL 736102, at *5 (S.D.N.Y. Feb. 20, 2015). Here, the record contains treatment notes with mental status examinations from Plaintiff's treating psychiatrist, Dr. Raymond, and NP Ankrah who worked with him; these examinations reveal normal, unremarkable findings. (R. 703-10). The record regarding Plaintiff's psychiatric limitations was also developed through a psychiatric consultative examination conducted by Dr. Antiaris, (R. 812-15), a medical source statement from LCSW Shuman, (R. 829-31), and a mental RFC assessment from Dr. Bruni, the State Agency Psychological Consultant, (R. 480-83). The ALJ clearly considered these opinions, giving Dr. Antiaris's opinion “some weight,” LCSW Shuman's “great weight,” and Dr. Bruni's opinion “little weight,” (R. 429). The ALJ also explicitly incorporated mental health limitations into the RFC, restricting Plaintiff to low stress jobs with occasional contact with supervisors, coworkers, and the general public. (R. 422, 427-28).

C. The ALJ's RFC Assessment

The RFC is an “individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, at *2). The RFC determination is reserved to the Commissioner. Monroe, 676 Fed.Appx. at 8. When determining the RFC, the ALJ considers “a claimant's physical abilities, mental abilities, [and] symptomatology, including pain and other limitations that could interfere with work activities on a regular and continuing basis.” Weather v. Astrue, 32 F.Supp.3d 363, 376 (N.D.N.Y. 2012) (citing 20 C.F.R. § 404.1545(a)). Nevertheless, ALJs are not medical professionals. See Heather R. v. Comm'r of Soc. Sec., 1:19-CV-01555(EAW), 2021 WL 671601, at *3 (W.D.N.Y. Feb. 22, 2021). The ALJ must refrain “from ‘playing doctor' in the sense that [he] may not substitute his own judgment for competent medical opinion.” Quinto v. Berryhill, 3:17-cv-00024(JCH), 2017 WL 6017931, at *12 (D. Conn. Dec. 1, 2017) (internal quotations omitted). Accordingly, where the record shows that the claimant has more than “minor physical impairments,” Jaeger-Feathers v. Berryhill, 1:17-CV-06350(JJM), 2019 WL 666949, at *4 (W.D.N.Y. Feb. 19, 2019), an ALJ is not qualified “to assess residual functional capacity on the basis of bare medical findings,” Kinslow v. Colvin, 5:12-cv-1541(GLS/ESH), 2014 WL 788793, at *5 (N.D.N.Y. Feb. 24, 2014).

1. Treating Physician Rule ¹⁰

10 Despite recent changes in the regulations, the treating physician rule applies to claims filed before March 27, 2017. Quiles v. Saul, No. 19-CV-11181(KNF), 2021 WL 848197, at *9 (S.D.N.Y. Mar. 5, 2021) (citing 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2)). Here, when the Appeals Council consolidated Plaintiff's July 2016 and December 2019 applications for disability benefits, it directed the ALJ to “apply the prior rules to the consolidated case pursuant to HALLEX I-5-3-30.” (R. 503). Therefore, the ALJ must apply the treating physician rule here.

In determining whether a claimant is disabled, an ALJ must give the medical opinion of a treating physician “controlling weight if it is well supported by medical findings and not inconsistent with other substantial evidence.” Rosa, 168 F.3d at 78-79. This is because the treating physician is in a more capable position to provide a detailed picture of a claimant's impairments than consultative physicians who may see the claimant on just one occasion or not at all. See Estela-Rivera v. Colvin, No. 13-CV-5060(PKC), 2015 WL 5008250, at *13 (E.D.N.Y. Aug. 20, 2015) (citing 20 C.F.R. § 404.1527(d)(2)). An ALJ may properly disregard the opinion of a treating physician where the opinion is contradicted by the weight of other record evidence, Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999), or if it is internally inconsistent or otherwise uninformative, see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); see also Micheli v. Astrue, 501 Fed.Appx. 26, 28 (2d Cir. 2012) (summary order) (“A physician's opinions are given less weight when his opinions are internally inconsistent.”).

Where the ALJ affords limited weight to the treating source's opinion and more weight to a non-treating source's opinion, he or she must provide “good reasons” for doing so. Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998); see also 20 C.F.R. § 404.1527(c)(2). In addition, the ALJ must follow “specific procedures . . . in determining the appropriate weight to assign” the treating source's opinion. Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019). The ALJ must “explicitly consider the following, nonexclusive Burgess factors: (1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Id. at 95-96 (quoting Selian, 708 F.3d at 418) (per curium) (citing Burgess, 537 F.3d at 129)) (internal quotation marks omitted). “An ALJ's failure to ‘explicitly' apply the Burgess factors when assigning weight at step two is a procedural error.” Id. at 96. Where an ALJ procedurally errs, “the question becomes whether a searching review of the record . . . assure[s] [the court] . . . that the substance of the treating physician rule was not traversed.” Id. (quoting Halloran, 362 F.3d at 32) (internal quotation marks omitted). Remand is appropriate “when the Commissioner has not provided ‘good reasons' for the weight given to a treating physician[']s opinion.” Halloran, 362 F.3d at 33.

2. Evaluating Dr. Gamburg's Medical Opinion

Plaintiff argues that the ALJ erred in rejecting all opinions from treating medical sources and providing “only superficial analysis” to justify doing so. (Pl. Br. at 17). Specifically, Plaintiff contends that the RFC incorporated none of Dr. Gamburg's opined limitations, despite the ALJ affording “great weight” to those aspects of his opinion. (Id. at 17-18). The Commissioner responds that the ALJ gave “good reasons” for affording great or less weight where applicable and that the RFC properly incorporated relevant aspects of these opinions. (Comm. Br. at 12-15).

While an ALJ “is not required to accept, or follow, any one medical opinion in toto. the ALJ must provide an explanation if he accords significant weight to a medical source statement but fails to adopt the portions of those opinions that were potentially favorable to Plaintiffs claim of disability.” Cepeda v. Comm'r of Soc. Sec., No. 19-CV-4936(BCM), 2020 WL 6895256, at *11 (S.D.N.Y. Nov. 24, 2020)(internal quotations omitted); Pereyra v. Astrue, No. 10-CV-5873(DLI), 2012 WL 3746200, at *14 (E.D.N.Y. Aug. 28, 2012). Here, the ALJ gave “great” weight to Dr. Gamburg's limitations concerning lifting, standing/walking, climbing, bending, stooping, crouching, kneeling, crawling, and balancing. (R. 427). However, despite giving great weight to these limitations, the ALJ failed to incorporate any restrictions on standing/walking or bending into the RFC and did not provide any explanation for failing to do so.¹¹ (Id.). “The Court will not speculate that the ALJ implicitly incorporated the limitations ... into the RFC assessment. Rather, it is incumbent upon the ALJ to provide a detailed rationale for either rejecting the limitations or deeming them accommodated by the limitations stated as part of the RFC assessment[.]” Long v. Berryhill, No. 18-CV-1146(PKC), 2019 WL 1433077, at *4 (E.D.N.Y. Mar. 29, 2019) (remanding where the ALJ gave a medical opinion “significant weight,” but failed to explain how the doctor's “finding of Plaintiffs moderate limitations in following instructions and making work-related decisions factored into the RFC”). As such, I respectfully recommend remanding this matter to the ALJ for proper consideration of these limitations and their impact on the RFC.

11 The Commissioner correctly notes that Dr. Gamberg's limitation of lifting up to 20 pounds is accounted for by the ALJ's finding that Plaintiff could only perform sedentary work, because the regulations define sedentary work as that which involves lifting no more than 10 pounds at a time. (Comm'r Br. at 19); 20 C.F.R. § 404.1567(a).

The ALJ also gave “less”/ “limited” weight to Dr. Gamburg's opinion that (1) Plaintiff could sit only for two hours per day, (2) Plaintiff could occasionally push and pull, and (3) Plaintiff could frequently reach, feel, and handle objects. (R. 427). The ALJ stated that Dr. Gamburg's opinion about Plaintiff's ability to push and pull, reach, feel, and handle objects was inconsistent with the “treating record as a whole,” because the record revealed “full grip strength,” “intact sensation,” “4/5 or better strength in her upper extremities, her intact grip strength and wrist stability.” (R. 427). Sufficient evidence in the record supports that Plaintiff had good grip strength,¹² (see, e.g., R. 274, 282, 821); intact sensation, (see, e.g., R. 286, 288, 479, 671); and normal upper extremity strength, (see, e.g., R. 344, 760, 775). Thus, the ALJ adequately explained her reasoning in rejecting those limitations in Dr. Gamburg's opinion.

12 Though on one occasion in July 2018 Plaintiff complained of “poor grip strength” to Dr. Bhana, (R. 401), numerous treatment records and examinations show 5/5 grip strength before and after July 2018.

The ALJ, however, did not provide sufficient reasons for giving limited weight to Dr. Gamburg's opinion that Plaintiff could sit for just two hours per day. The ALJ explained that it was not well supported by the “treating record as a whole,” specifically mentioning Plaintiff's statements to providers, other opinion evidence, and activities of daily living. (R. 427). First, despite referring to “statements to providers,” the ALJ did not point to any specific statement to a provider that undermined Dr. Gamburg's opinion, and the Court's review of the record does not independently reveal when Plaintiff reported to her physicians a better ability to sit. In fact, the record consistently contains Plaintiff's statements about her limited ability to sit: she estimated to the New York State Office of Temporary and Disability Assistance that her ability to sit was two hours out of eight, (R. 633); she testified she could sit for around 20 minutes, (R. 46), noting she would “sit on the couch for a little while” before needing to go lay down, (R. 44); and in 2016, she was assigned the short term goal in physical therapy to be able to sit for 60 minutes without painful limits, (R. 227). Moreover, in her adult function reports, she submitted in 2016 she said that she could not “sit for a duration of a movie without getting up,” (R. 185).

The ALJ's second bucket of purported contradicting evidence- “other opinion evidence”- is likewise not compelling. Dr. Kaci opined that Plaintiff's ability to sit was “mild[ly]” limited, (R. 275), while Doctors Spooner and Healy noted it was “moderate[ly]” limited, (R. 282, 822), without providing specific hours-based limitations; as the ALJ acknowledges, these limitations were “somewhat vague,” (R. 425), and do not contradict Dr. Gamburg's assessment. Other more specific opinions in the record present conflicting views on Plaintiff's ability to sit: PA Kallopenes opined that Plaintiff could only sit for one hour, (R. 245), and Dr. Auerbach's concluded that Plaintiff could sit with normal breaks for six hours, (R. 478). The ALJ gave “little weight” to each of these opinions, (R. 426, 429), so the Court cannot assume that the ALJ simply weighed conflicting evidence and determined to credit Dr. Auerbach's lesser sitting restriction. Thus, the ALJ did not adequately explain his reasons for rejecting Dr. Gamburg's opinion regarding Plaintiff's ability to sit.

Similarly, Plaintiff's activities of daily living do not support the ALJ giving little weight to Dr. Gamburg's opinion regarding Plaintiff's sitting restriction. The ALJ's error here is disappointing because the Appeals Council had already advised on remand that the ALJ needed to correct her failure to “discuss [Plaintiff]'s activities of daily living [and] how these activities would conflict with the limitations Dr. Gamburg assessed.” (R. 501). The ALJ does selectively discuss Plaintiff's reported daily activities from her Adult Function Report from September 2016, like child and pet care, basic cooking, light cleaning, laundry, driving, shopping once to twice per week, taking walks and going to the park with her children three times a month. (R. 423). However, she does not address other countervailing evidence of Plaintiff's daily activities, particularly that which The Appeals Council highlighted in its order remanding the ALJ's prior decision: that although Plaintiff cared for her child, doing so caused or exacerbated her pain; that Plaintiff put her son in daycare due to difficulty repetitively picking him up and playing with him on the floor; that Plaintiff did not go shopping; and that Plaintiff rarely drove. (R. 501-02). As such, though the ALJ refers in a cursory way to statements to providers, other opinion evidence, and activities of daily living, these bald statements are inadequate reasons for rejecting Dr. Gamburg's opinion regarding Plaintiff's ability to sit.

The ALJ's partial rejection of Dr. Gamburg's opinion is problematic because if his opinion regarding Plaintiff's ability to sit for only two hours was credited, that would erode Plaintiff's ability to do sedentary work. See Perez, 77 F.3d at 46 (citing Social Security Ruling 83-10) (“Sedentary work also generally involves . six hours of sitting in an eight-hour work day.”); Woodford v. Apfel, 93 F.Supp.2d 521, 529 (S.D.N.Y. 2000) (citing 20 C.F.R. § 404.1567) (“In order for the ALJ to make a proper determination about Plaintiff's RFC to engage in sedentary work, she was required to review evidence that showed whether Plaintiff could sit for six hours of an eight hour workday.”). Further, although the ALJ incorporated into Plaintiff's RFC “a sit/stand option in [which] after every 30 minutes of sitting, [Plaintiff] must stand for one to two minutes,” (R. 422), she did not provide any support for this estimated time from medical opinions or treatment notes in the record, and the Court's review of the record does not find such support.

The ALJ also committed procedural error in her evaluation of Dr. Gamburg's opinion because she failed to explicitly address Burgess factors one and four, regarding the frequency, length, nature, and extent of Dr. Gamburg's treatment and whether he is a specialist. See Burgess, 537 F.3d at 129. An assessment of these factors here does not support the ALJ's partial rejection of Dr. Gamburg's opinion. Namely, Dr. Gamburg had a long treatment relationship with Plaintiff of almost four years, from May 2016 to March 2020, regularly treated plaintiff over the relevant time period, and specialized in pain management. (R. 293, 409-11). Though the ALJ did not have to explicitly enumerate these factors in her opinion, a searching review of the record does not assure the Court that the substance of the treating physician rule was not traversed. See Estrella, 925 F.3d at 96; Halloran, 362 F.3d at 33.

Accordingly, I respectfully recommend finding that remand is warranted because the ALJ erred in her analysis and weighing of Dr. Gamburg's medical opinion.

3. Other Treating Source Opinions

Plaintiff generally states that “the ALJ rejected all treating sources in the record and provides only superficial analysis of the treating providers,” (Pl. Br. at 17), without providing any analysis to support this contention for any physician beyond Dr. Gamburg. I respectfully recommend finding that the ALJ made no error in her consideration of Dr. Vardy's opinion as the other treating physician in the record.¹³ The ALJ afforded Dr. Vardy “minimal weight” because his opinion that Plaintiff was unlimited in her work capacity was inconsistent with any of the other opinion evidence. (R. 429). The record provides substantial evidence in support of the ALJ's analysis, including consistent treatment records noting the debilitating effect Plaintiff's pain and headaches caused her, (see, e.g., R. 286, 308, 645), and medical opinions regarding the effect of her mental impairments on her abilities and limitations, (see, e.g., R. 627-28, 705).

13 Because physician assistants and social workers are not considered “acceptable medical sources” whose opinions should be given controlling weight under the treating physician rule, the opinions of PA Kallopenes and LCSW Shuman are not discussed. See supra notes 7 and 8.

D. The ALJ's Evaluation of Plaintiff's Subjective Statements

Plaintiff maintains that the ALJ “brushed off” Plaintiff's subjective statements by failing to explain why she found them inconsistent with the evidence. (Pl. Br. at 18-20). The Commissioner argues that the ALJ considered all reported symptoms and discussed their inconsistencies with the record, and that substantial evidence supports the ALJ's credibility findings. (Comm. Br. at 21-23).

“It is the function of the Commissioner. to appraise the credibility of witnesses, including the claimant..,[A]n ALJ is not required to accept the claimant's subjective complaints without question; he may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record.” Martes v. Comm'r of Soc. Sec., 344 F.Supp.3d 750, 762-63 (S.D.N.Y. 2018) (internal quotations omitted). The regulations state that the Commissioner will “consider all of the available evidence, including [the claimant's] medical history, the medical signs and laboratory findings, and statements about how [his or her] symptoms affect [him or her].” 20 C.F.R. § 404.1529(a). However, the Commissioner “will not reject [a claimant's] statements about the intensity and persistence of [his or her] pain or other symptoms or about the effect [his or her] symptoms have on [his or her] ability to work solely because the available objective medical evidence does not substantiate [his or her] statements.” 20 C.F.R. § 404.1529(c)(2). “[A]n ALJ is not required to explicitly address each and every statement made in the record that might implicate his evaluation of the claimant's credibility as long as the evidence of record permits the court to glean the rationale of an ALJ's decision.” Morales v. Berryhill, 484 F.Supp.3d 130, 151 (S.D.N.Y. 2020) (internal quotations omitted).

Here, the ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause Plaintiff's alleged symptoms, but determined that Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms [we]re not consistent with the medical evidence and other evidence in the record prior to February 22, 2019.” (R. 427). Despite Plaintiff's assertion that the ALJ made her credibility finding “without as much as even a line of analysis,” (Pl. Br. at 19), the ALJ in fact explicitly considered Plaintiff's testimony and its inconsistency with the medical record, (R. 427). The ALJ specifically referred to Plaintiff's September 2016 Adult Function Report in which she described her activities of daily living, as well as referenced Plaintiff's hearing testimony about her sustained cervical spinal and shoulder pain, weakness, fatigue, side effects from her medication, complaints of one to two migraines per week, and worsened depression and anxiety. (R. 423). The ALJ explained, however, that these subjective statements were undermined by Plaintiff's “conservative course of treatment, treating notes showing that her pain improved with this treatment, and the objective medical findings showing normal gait, full strength, and only reduced limited range of motion in her neck.” (R. 427). The record confirms that Plaintiff exhibited normal gait, (see, e.g., R. 332, 337, 758), full strength in her extremities, (see, e.g., R. 286, 287, 289), and a “supple” neck, (see, e.g., R. 804, 820, 848). The ALJ also found that Plaintiff's testimony about her depression diagnosis and her related limitations were inconsistent with treatment records, which showed intact mental status examinations and a lack of significant treatment. (R. 427). This is again confirmed by the record, which shows Plaintiff's continued intact mental status, (see, e.g., R. 257, 348, 354), and stable condition while on the same prescription of medication for more than a year, (see, e.g., R. 703-10). Thus, the ALJ properly pointed to inconsistencies between Plaintiff's allegations regarding her inability to work and the evidence in the record, and gave specific reasons for not giving deference to Plaintiff's allegations. See Urena v. Comm'r of Soc. Sec., 379 F.Supp.3d 271, 287-88 (S.D.N.Y. 2019), appeal dismissed (Nov. 7, 2019) (concluding that the ALJ properly considered and discounted Plaintiff's testimony regarding her ability to work due to inconsistencies between her allegations and the record); Hutchings v. Berryhill, No. 18-Civ-1921(PAE)(KHP), 2019 WL 5722478, at *14 (S.D.N.Y. June 28, 2019), report and recommendation adopted, 2019 WL 5722009 (S.D.N.Y. July 16, 2019) (“[I]t is clear to this Court that the ALJ did not ignore Plaintiff's subjective complaints when formulating her opinion, but merely discounted their veracity in light of medical and other evidence in the record.”).

Accordingly, I respectfully recommend finding that the ALJ adequately addressed Plaintiff's subjective statements.

III. CONCLUSION

For the foregoing reasons, I conclude and respectfully recommend granting Plaintiff's motion for judgment on the pleadings, denying the Commissioner's cross-motion, and remanding this case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Report and Recommendation.

IV. NOTICE

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report and Recommendation to serve and file written objections. See Fed.R.Civ.P. 6(a) and (d) (rules for computing time). A party may respond to another party's objections within fourteen (14) days after being served with a copy. See Fed.R.Civ.P. 72(b)(2). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Kenneth M. Karas at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at said Courthouse.

Requests for extensions of time to file objections must be made to the Honorable Kenneth M. Karas and not to the undersigned. Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b), 6(d), 72(b); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).

SO ORDERED: