Opinion
1:18-cv-04494 (AT) (SDA)
06-26-2019
McCleese, Plaintiff, v. Andrew M. Saul, Defendant.
REPORT AND RECOMMENDATION STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE ANALISA TORRES, UNITED STATES DISTRICT JUDGE:
On May 21, 2018, Plaintiff Demetrius McCleese ("Plaintiff" or "McCleese") filed this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits. (Compl., ECF No. 1.) For the reasons set forth below, I recommend that the decision of the Commissioner be vacated and this case be remanded for further proceedings.
BACKGROUND
At my direction, in lieu of cross-motions for judgment on the pleadings, the parties filed a Joint Stipulation that sets out a stipulated statement of facts and their respective positions on the contested issues. (Joint Stip., ECF No. 16). This section is based upon the content of Sections I and II of the Joint Stipulation. (Id. at 1-13.)
I. Procedural History
On March 19, 2012, McCleese filed an application for disability insurance benefits, with a disability onset date of February 12, 2010. (Administrative R. ("R."), ECF No. 11, 113-19.) The Social Security Administration ("SSA") denied McCleese's application on May 1, 2012 and McCleese requested a hearing before an Administrative Law Judge ("ALJ"). (R. 55-66, 67-68.) A hearing was held before ALJ Vincent Cascio on May 14, 2013. (R. 23-43.) In a decision dated June 17, 2013, ALJ Cascio found McCleese not disabled. (R. 10-22.) On July 9, 2013, McCleese requested review of the ALJ's decision by the Appeals Council. (R. 9.) However, the Appeals Council denied his request for review on December 23, 2014. (R. 1-4.) McCleese subsequently filed an appeal in this Court. (See 15-CV-01103, Compl., ECF No. 1.) While that action was pending, McCleese filed a new application for benefits on March 5, 2015. (See R. 387.) The parties agreed to remand the first case for further administrative proceedings and, on May 12, 2015, the Court endorsed the stipulation of remand. (R. 401-03.) Based on the Court's Order, the Appeals Council issued an Order dated August 17, 2015, consolidating the case with McCleese's subsequent claim for benefits and remanding the case to the ALJ for further consideration. (R. 395-99.) In particular, the Appeals Council directed that the ALJ "further evaluate the opinion evidence of record, with particular consideration of the opinions of treating physician Dr. Polifrone[.]" (R. 398.)
To qualify for disability insurance benefits, a claimant must be both disabled and insured for benefits. 42 U.S.C. § 423(a)(1)(A) & (C); 20 C.F.R. §§ 404.101, 404.120 & 404.315(a). The last date a person meets these requirements is commonly referred to as the date last insured ("DLI"). McCleese's DLI is December 31, 2015. Therefore, to qualify for benefits, he must prove his disability began on or before December 31, 2015.
ALJ Cascio held a second hearing on September 22, 2016. (R. 343-68.) By decision dated February 1, 2017, ALJ Cascio again found McCleese not disabled. (R. 325-42.) ALJ Cascio's decision became the Commissioner's final decision when the Appeals Council denied McCleese's request for review on March 19, 2018. (R. 308-11.) This action followed.
II. Non-Medical Evidence
McCleese was born in 1972 and was 37 years old on the alleged onset date. (R. 350.) McCleese has a high school education (R. 351) and past relevant work as a residential rehabilitation aide, a security guard and a small products assembler. (R. 360-61.)
III. Medical Evidence
A. Good Samaritan Hospital
On February 13, 2010, McCleese was seen in the emergency room for back and hip pain after pulling a heavy resident at his job as a residential rehabilitation aide. (R. 208.) A physical examination of the lower back was notable for evidence of tenderness on palpation of the back and right hip, leg raising limited to 45 degrees on the left and 35 degrees on the right and inability to bend over completely. (R. 209.) McCleese was injected with Toradol and given Valium while in the emergency room. (Id.) He was diagnosed with sciatica and prescribed Percocet and instructed to follow up with orthopedics and his preferred medical doctor. (R. 210.)
B. Rockland Diagnostic Imaging
On October 8, 2010, McCleese underwent a magnetic resonance image ("MRI") of his lumbosacral spine. Dr. Jonathan Schwartz, M.D. of Rockland Diagnostic Imaging found the test to be "unremarkable." (R. 612.)
C. Dr. Annarose Polifrone , M.D. - Treating Physician
McCleese began treatment with Dr. Annarose Polifrone, M.D. on November 17, 2010. (R. 219.) McCleese told Dr. Polifrone that he had acute low back pain that began on February 12, 2010 when he attempted to assist a patient stand up in his work as a residential rehabilitation aide; since then, he had regular chiropractic care three times per week but continued to experience symptoms of low back pain with posterior radiation into the right leg associated with numbness in the right calf. He also had difficulty sleeping due to the pain. (Id.) Dr. Polifrone observed that McCleese walked with a limp and needed help getting on and off the examination table. (R. 220.) A physical exam revealed decreased curvature of the lumbar spine, spasm/tenderness on palpation of the paraspinal muscles bilaterally with decreased movement in all directions due to pain, positive straight leg raising test on the right, weakness of the extensors of the toes/foot on the right, decreased sensation in the L5 and S1 dermatomes on the right, and decreased Achilles' reflex on the right. He did not have any muscle atrophy. (R. 220.) Dr. Polifrone diagnosed lumbosacral injury with herniated nucleus pulposus and lumbosacral radiculopathy. She prescribed Percocet. (Id.)
Straight leg raising "is a means of diagnosing nerve root compression, which can be caused by a herniated disc. The patient lies flat while the physician raises the extended leg. If the patient feels pain in the back at certain angles (a 'positive test'), the pain may indicate herniation." Moore v. Astrue, No. 07-CV-05207 (NGG), 2009 WL 2581718, at *2 n.7 (E.D.N.Y. Aug. 21, 2009) (internal citation omitted).
"A normal human vertebral column consists of thirty-three vertebrae labeled according to their position and region (in descending order, cervical ('C1' through 'C7'), thoracic ('T1' through 'T12'), lumbar ('L1' through 'L5'), sacral ('S1' through 'S5') and coccygeal ('Co1' through 'Co4')). The fifth lumbar vertebra, for example, is labeled 'L5.' The space between the fifth lumbar and first sacral vertebrae, for example, is labeled 'L5-S1.'" Friedman v. Astrue, No. 07-CV-03651 (NRB), 2008 WL 3861211, at * 2 n.4 (S.D.N.Y. Aug. 19, 2008) (citing Dorland's Illustrated Medical Dictionary 2079 (31st ed.2007)).
"Reduced Achilles reflexes are consistent with low back pain caused by nerve root damage." Miller v. Comm'r of Soc. Sec., No. 13-CV-06233 (LGS), 2015 WL 337488, at *4 n.10 (S.D.N.Y. Jan. 26, 2015) (citing Alta Skelton, Lumbar Radiculopathy: Proper Diagnosis Key to Effective Treatment of Back and Leg Pain); see also National Center for Biotechnology Information, Achilles Reflex, https://www.ncbi.nlm.nih.gov/books/NBK459229/ (last visited June 20, 2019) ("An absent or decreased Achilles reflex could also reveal certain conditions such as a first sacral radiculopathy[.]")
The nucleus pulposus is "a semifluid mass of fine white and elastic fibers that forms the central portion of an intervertebral disk[.]" Dorland's at 1301.
Lumbosacral refers to the lumbar and sacral regions of the spine. Dorland's at 1076. Radiculopathy is a "disease of the nerve roots." Dorland's at 1571. Lumbar radiculopathy is a "disease of the lumbar nerve roots, such as from a disc herniation or compression by a tumor or bony spur, with lower back pain and often paresthesias[,] an abnormal touch sensation. Id. at 1383, 1571.
On January 5, 2011, Dr. Polifrone examined McCleese and completed a Doctor's Progress Report form for the Workers' Compensation Board. (R. 230.) Dr. Polifrone indicated that Percocet was helping, but that McCleese's symptoms were unchanged and found him "totally disabled" and unable to return to his previous work. (Id.) Dr. Polifrone completed another Doctor's Progress Report following an examination on February 17, 2011. (R. 231.) Dr. Polifrone noted that a February 3, 2011 MRI of McCleese's lumbosacral spine was normal. (Id.) Dr. Polifrone further noted that she conducted electromyography/nerve conduction ("NCV/EMG") studies of the lower right extremity and diagnosed right S1 radiculopathy with axonal involvement of the tibial motor nerve in the leg and recommended injection therapy. (R. 224-26, 231.) Dr. Polifrone's assessment remained that McCleese was "totally disabled" and unable to return to his previous work. (R. 231.)
The Administrative Record contains only the second page of the form. Compare R. 230 with New York State Workers' Compensation Board Doctor's Progress Report Form C-4.2, available at www.wcb.ny.gov/content/main/forms/c4_2.pdf (last visited June 11, 2019). The same is true for the similar forms completed by Dr. Polifrone on February 17, 2011 (R. 231); March 15, 2011 (R. 232); March 16, 2011 (R. 233); April 21, 2011 (R. 234) and June 2, 2011 (R. 235).
On March 15, 2011, Dr. Polifrone conducted NCV/EMG studies of the lower left extremity and found left S1 radiculopathy. (R. 226-29, 232.) Otherwise, she noted that McCleese's symptoms were unchanged and he was unable to return to work. (R. 232.) Following the appointment, Dr. Polifrone completed another Doctor's Progress Report dated March 16, 2011. (R. 233.) Dr. Polifrone noted marked pain palpation at L5-S1 on the right and administered a paraspinal nerve block injection to McCleese's lower back. (Id.) During a follow-up appointment on April 21, 2011, McCleese reported that he felt better and had no pain in his right leg. (R. 234.) Dr. Polifrone observed that McCleese had less spasm and increased range of motion. (Id.) In May 2011, Dr. Polifrone noted that McCleese's symptoms were unchanged and that he was "doing a good home ex[ercise] program daily," and continued to take pain medication. (R. 235.)
At a follow-up on July 21, 2011, McCleese described continued lower back pain with radiation into the legs with acute flare-ups of pain. (R. 222.) Dr. Polifrone noted that McCleese's course continued to be complicated by acute flare-ups of pain and he continued to need pain medication. (Id.) On August 25, 2011, McCleese described unchanged symptoms. (Id.) Dr. Polifrone's examination revealed a limping gait due to pain, muscle spasms in the lower back, positive leg raising bilaterally, decreased sensation to palpation in the legs, and decreased Achilles' reflex on the right. No changes were made to Plaintiff's course of treatment. (Id.)
On January 19, 2012, McCleese reported continued lower back pain with radiation into his legs. (R. 223.) He reported that he tried to do a home exercise program on a daily basis and also tried to go on walks, weather permitting. (R. 223.) Dr. Polifrone continued McCleese on Percocet. (Id.) During his next appointment on February 16, 2012, McCleese exhibited weakness and numbness in his lower extremities and was limping due to lower back pain. (R. 221.) Dr. Polifrone's examination indicated a decrease in the normal curve of his lower back, as well as muscle spasms, decreased range of motion due to pain, positive straight les raising, decreased sensation to the lower extremities and absent Achilles reflex on the right. (Id.) McCleese's symptoms remained unchanged during his follow-up visits in March and April 2012. (Id.) He continued to report that he was doing a home exercise program and Dr. Polifrone continued his pain medication, which she noted "allow[ed] him to function." (Id.)
Dr. Polifrone completed an undated narrative regarding McCleese following a visit on June 1, 2012. (R. 267-72.) This letter was addressed to McCleese's attorney. (R. 267.) Dr. Polifrone summarized her treatment of McCleese between November 2010 and June 2012. (R. 267-71.) She stated his diagnosis of lumbosacral injury with radiculopathy involving S1 nerve root bilaterally. (R. 271.) Dr. Polifrone wrote that McCleese continued to need treatment in the way of pain control and that the medication we was taking caused drowsiness and could interfere with concentration. (Id.) Dr. Polifrone opined that Plaintiff was unable to sit, stand, walk or drive for extended periods and could not lift more than five pounds. She further opined that he could not perform repetitive or sustained activities using his lower extremities, could not twist or bend the lower back as unable to tolerate heights and weather changes. (Id.) Dr. Polifrone stated that McCleese's prognosis was "guarded/poor." (Id.)
Dr. Polifrone also completed a Lumbar Spine Impairment Questionnaire dated June 1, 2012. (R. 259-65.) Her clinical findings included limited range of motion in the lower back, tenderness in the paraspinal muscles of the lower back, muscle spasms in the lower back, a limping gait due to back pain, decreased sensation on palpation at L5-S1 bilaterally, decreased Achilles' reflex on the right, weak extensor muscles in the toes on the right and positive straight leg raising to 30 degrees bilaterally. (R. 259-60.) Dr. Polifrone noted that the radiculopathy was confirmed by EMG testing. (R. 260.) Dr. Polifrone reported that McCleese's primary symptoms were low back pain radiating to both legs on the right more than the left, numbness on the right side, difficulty sleeping due to pain, weakness of both legs and constipation. (Id.) She stated that the symptoms and functional limitations in the questionnaire were consistent with documentation of McCleese's impairments. (Id.) She found these symptoms and limitations to be present since the date of Plaintiff's injury at work on February 12, 2010. (R. 264.)
As for pain, Dr. Polifrone noted that McCleese experienced pain daily, which ranged from mild to severe. (R. 261.) She further noted that medication had been unable to completely relieve the pain without unacceptable side effects, but that various treatments had provided "temporary improvement." (R. 263.) Dr. Polifrone opined Plaintiff was able to sit less than one hour and stand/walk less than one hour in an eight-hour work day. (R. 261.) When sitting, he needed to get up and move around "as needed." (R. 262.) He occasionally could lift and carry five pounds, but never more. (Id.) She assessed that his pain, fatigue or other symptoms were constantly severe enough to interfere with his attention and concentration. (R. 263.) She stated he was not a malingerer. (Id.) He also require breaks to rest "as needed" through an eight-hour workday for thirty minutes at a time. (R. 264.) Dr. Polifrone noted that McCleese's impairments were likely to produce "good days" and "bad days" and estimated he would miss work, on average, more than three times a month as a result of his impairments or treatment. (Id.)
Dr. Polifrone examined McCleese again on June 29, 2012. (R. 276.) McCleese continued to report lower back pain radiating into his legs with weakness and numbness in both legs. (Id.) He described difficulty sitting, standing and walking for extended periods. On examination, Dr. Polifrone noted muscle spasms in the lower back, decreased range of motion due to pain, positive straight leg raising bilaterally, patchy decreased sensation in both legs, weakness of toes in the right foot and absent Achilles' reflex on the right. She continued to recommend home exercises and renewed his prescription for Percocet. (Id.)
In August 2012, Dr. Polifrone reiterated that McCleese continued to have good days and bad days and that he experienced acute flare-ups of pain that requires him to stay on bed rest for a few days. (R. 276.) Subsequent office visits in September and October 2012 documented no significant changes in McCleese's condition. (R. 276-78.) In November 2012, Dr. Polifrone noted that McCleese's course continued to be complicated by acute flare-ups of pain requiring bed rest. (R. 278.) In January 2013, McCleese reported difficult sleeping due to pain. (Id.) Dr. Polifrone prescribed Rozerem and during his next visit, on February 13, 2013, McCleese reported he was getting six to seven hours of uninterrupted sleep with the medication without side effects. (R. 279.) In March 2013, Dr. Polifrone noted that McCleese's pain persisted, but that his pain medications allowed him to function and get through his day and perform activities of daily living. (Id.)
In a narrative report dated June 12, 2013, Dr. Polifrone wrote that McCleese had been under her care since November 2010 due to low back pain with bilateral S1 radiculopathy. (R. 306.) She reported that Plaintiff had unchanged symptoms, medical findings and limitations from those detailed in the questionnaire completed on June 1, 2012 and opined those findings remained valid. (Id.)
During an examination on September 11, 2013, McCleese reported unchanged lower back pain radiating to the legs with weakness. (R. 528.) Dr. Polifrone noted that McCleese was getting acute flare-ups in his pain more often as the cold weather was starting. (Id.) A physical exam revealed spasms in the lower back muscles, decreased range of motion due to pain, pain going down into the legs with extension, positive straight leg raising test bilaterally, decreased sensation in both legs, weakness of the flexors/extensors of the toes bilaterally and decreased reflex of the Achilles' on the right. (Id.) These findings remained the same during follow-up appointments in October and December 2013. (R. 528-29.)
On January 9, 2014, Dr. Polifrone reduced McCleese's pain medication. (R. 529.) McCleese returned to Dr. Polifrone five months later, and stated that his pain and weakness in his legs persisted. (Id.) Dr. Polifrone noted that McCleese was continuing his home exercise program, but continued to need pain medications and continued to experience complications due to acute flare-ups. (Id.) She recorded similar notes during follow-up visits in June and September 2014. (R. 529-30.)
In February 2015, Dr. Polifrone noted no change in McCleese's complaints or condition and recommended he continue with the same course of treatment. (R. 530.) In March 2015, Dr. Polifrone noted that without pain medication he would not be able to leave his house. (Id.) A physical examination showed a slight limp and Dr. Polifrone noted that McCleese needed help getting on and off the exam table. (Id.) She further noted muscle spasms in the lower back with decreased range of motion in all planes, positive straight leg raising, patchy sensation, decreased Achilles reflex and muscle weakness. (Id.)
During a follow-up visit on August 28, 2015, Dr. Polifrone noted that McCleese continued to experience flare-ups of pain that sometimes cause him to stay on bed rest for a few days. (R. 836.) In a narrative completed the same day, Dr. Polifrone reported no change in McCleese's physical limitations from the previous reports. (R. 534.) She reiterated the positive clinical findings and restated her opinion that McCleese would be limited to sitting and standing/walking for less than one hour in an eight-hour workday and lifting/carrying less than five pounds, among other limitations. (Id.) She also reiterated that McCleese would need to take unscheduled breaks and would likely be absent from work more than three time per month. (Id.)
At a follow-up visit on September 25, 2015, McCleese reported his low back pain persisted despite doing home exercises and use of medication. (R. 836.) An exam was notable for evidence of decrease of the normal lumbar curve, muscle spasms in the lower back with decreased range of motion in forward flexion due to pain, positive straight leg raising bilaterally, patchy decreased sensation in the legs, decreased Achilles' reflex on the right and 3/5 weakness in all muscles tested in the right lower extremity. (Id.) Subsequent notes documented no significant changes through September 9, 2016. (R. 836-38, 840-42.) In a letter completed on September 9, 2016, Dr. Polifrone opined that McCleese remained disabled from all work and that his condition was permanent and, due to the longevity of his symptoms, his prognosis was "guarded/poor." (R. 839.)
D. Dr. Jose Corvalan , M.D. - April 2012 Consultative Examination
At the request of the SSA, Dr. Jose Corvalan evaluated McCleese on April 19, 2012. (R. 215.) As part of his evaluation, Dr. Corvalan did not review the EMG studies. (Id.) McCleese reported low back pain radiating to both extremities, and stated he had chiropractic adjustments with mild relief and that he had not had any physical therapy. (Id.) He denied operations and hospital admissions. (Id.) He reported that he cooked once per week, watched television, listened to the radio, read, socialized with friends and went out to stores. (Id.) He showered and dressed independently. (Id.) He said that his parents did the cleaning, laundry and shopping. (Id.)
A physical examination revealed an antalgic gait, McCleese declined to walk on his heels or toes; squatted to 20 degrees; had limited motion in the lumbar spine with flexion, extension, lateral flexion and rotation; and had positive straight leg raising test in the sitting position only. (R. 216.) McCleese did not appear to be in any acute distress and his station was normal. (Id.) He did not use any assistive devices. (Id.) He did not need help changing for the exam or getting on and off the exam table. (Id.) He was able to rise from a chair without difficulty. (Id.) His hand and finger dexterity was intact and he had full (5/5) grip strength bilaterally. (Id.) He had full range of motion in his cervical spine, shoulders, elbows, forearms, wrists and fingers. (Id.) He had full (5/5) strength in his upper and lower extremities. (Id. at 216-17.) He did not have any muscle atrophy. (Id. at 216.) He had tenderness in his lumbar spine, but no spasms. (Id.) He did not have any sensory abnormalities and his reflexes were normal. (Id. at 217.)
"An antalgic gait is one in which the stance phase of walking is shortened on one side due to pain on weight bearing." Rodriguez v. Astrue, No. 02-CV-01488 (BSJ) (FM), 2009 WL 1619637, at * 6 n.23 (S.D.N.Y. May 15, 2009) (internal citation omitted).
Dr. Corvalan diagnosed low back pain radiating to the legs. (Id.) He opined that McCleese had "moderate" limitations in sitting and standing for long periods, walking long distances, bending, squatting and lifting heavy objects. (Id.)
E. Carol McLean-Long , M.D. - May 2015 Consultative Examination
On May 7, 2015, Dr. McLean-Long evaluated Plaintiff for the SSA. (R. 821.) Dr. McLean-Long did not review any EMG or any imaging studies of the spine. (Id.) McCleese reported that he had not done any physical therapy, and that he had discontinued chiropractic treatment. (R. 821.) He further stated he could do light cooking, but that his parent did most of it. (Id.) He stated that he did a little shopping, showered and dressed independently, watched television, socialized with friends and read. (Id. at 821-22.)
Upon physical examination, McCleese was limited to one-quarter to one-half decreased lumbar flexion and extension and weakness measured at 4/5 in the upper and lower extremities. (R. 822-23.) McCleese did not appear to be in any acute distress, and his gait and stance were normal; he could walk on heels and toes without difficulty. (R. 822.) He did not use any assistive devices. (Id.) He did not need help changing for the exam, nor getting on and off the examination table. (Id.) He was able to rise from a chair without difficulty. (Id.) He had full range of motion in his cervical spine, and his straight leg raising test was negative bilaterally. (Id. at 823.) He had normal deep tendon reflexes and no sensory deficits. (Id.) He did not have any muscle atrophy. (Id.) His hand and finger dexterity was intact, and he had full (5/5) grip strength bilaterally. (Id.)
Dr. McLean-Long diagnosed back pain with radicular symptoms in the legs. (R. 823.) She opined that Plaintiff had "mild" limitations sitting, standing, climbing, pushing, pulling and carrying heavy objects. (R. 824.)
F. Dr. Joseph DeFeo , M.D. - 2017 Independent Medical Examination
Dr. DeFeo evaluated McCleese in July 2017 and, in October 2017, wrote a report and completed a Disability Impairment Questionnaire, which were submitted to the Appeals Council. (R. 314-22.) Dr. DeFeo reviewed the EMG studies and McCleese's medical records and also referenced a September 25, 2017 MRI that showed a disc bulge at L4-5 with bilateral foraminal stenosis and desiccation of the L5-S1 disc. (R. 316.) Dr. DeFeo's exam revealed difficulty with heel-toe walking, limited motion in the lumbar spine, muscle weakness in both legs, positive straight leg raising test bilaterally and decreased circumference of the right thigh compared to the left. (R. 315) McCleese walked without any assistance, and his sensation was intact, and his reflexes were 2+ bilaterally and equal. (Id.) Dr. DeFeo diagnosed lumbosacral derangement, chronic lumbosacral spondylosis and radiculopathy. (R. 316.)
Derangement is "disarrangement of a part or organ." Dorland's at 493.
"Spondylosis is a broad term that simply refers to some type of degeneration in the spine. Most often, the term spondylosis is used to describe osteoarthritis of the spine, but it is also commonly used to describe any manner of spinal degeneration." Van Allen v. Colvin, No. 15-CV-00174 (DJS), 2016 WL 5660377, at *2 n.10 (D. Conn. Sept. 29, 2016) (citation omitted).
In the accompanying Disability Impairment Questionnaire, Dr. DeFeo reiterated his diagnoses. (R. 318.) He cited to the EMG and an MRI as support for his diagnoses. (Id.) McCleese's primary symptoms were low back pain radiating to the right leg and muscle weakness. (R. 319.) Dr. DeFeo opined that Plaintiff was able to sit for two hours and stand/walk for one hour in an eight-hour work day. (R. 321.) He could occasionally lift and carry five pounds, but never more. (Id.) McCleese's symptoms were frequently severe enough to interfere with attention and concentration (from one-third to two-thirds of an eight-hour workday). (Id.) He also required breaks to rest hourly during an eight-hour day for five to ten minutes at a time. (Id.) Dr. DeFeo estimated McCleese would miss work more than three times per month, and that these limitations were found to be present since McCleese's work accident on February 12, 2010. (R. 322.) IV. The September 22 , 2016 Administrative Hearing
At the administrative hearing on September 22, 2016, McCleese testified that he stopped working in 2010 after he injured his back. (R. 352-53.) McCleese testified that he saw Dr. Polifrone on a monthly basis and was taking Percocet three times per day. (R. 354-55.) He testified that he experienced constipation blurred vision and at time could not sleep as side effects from the medication. (R. 355.) He testified that he had never gone to physical therapy, worn a back brace, used a TENS unit or used a cane. (R. 354.) He stated surgery had never been recommended for his back. (R. 353.) McCleese also testified that he went to a chiropractor, which provided some temporary pain relief. (R. 355.)
TENS stands for Transcutaneous Electrical Nerve Stimulation. See Dorland's at 1882. A TENS Unit is "a portable device that sends electrical impulses to the body to block pain signals to the brain." Battle v. Recktenwald, No. 14-CV-02738 (VB), 2016 WL 698145, at *5 n.9 (S.D.N.Y. Feb. 19, 2016). The Court notes that treatment records from Dr. Polifrone indicate that McCleese did use a TENS unit as well as a lumbar spine corset and that he sometimes used a cane for ambulatory assistance. (See, e.g., R. 276-79, 529-30.)
McCleese estimated he could walk ten to fifteen minutes at a time, and could stand and sit for the same length of time. (R. 355-56.) In addition, McCleese estimated he could lift no more than five to ten pounds and could not bend over to touch his toes or knees. (Id.) As for daily activities, McCleese testified that he lived with his mother, who did most of the household chores, including cooking and laundry, but that he could shower and dress himself. (R. 351, 358.) He further testified that read and watched television and that he went to the park to feed the ducks, but did not go out socially. (R. 358-59.) McCleese drove a car to the hearing and testified that he sometimes drove while taking his medication, depending on the situation. (R. 351, 355.)
Vocational expert ("VE") Linda Stein also testified at the hearing. (R. 359-66.) The VE testified that an individual of McCleese's age, education and work history who was limited to light work, except who could occasionally climb ramps and stairs, but never ladders, ropes or scaffolds; occasionally balance, stoop, crouch, kneel and crawl; and, must avoid unprotected heights and hazardous machinery, could perform McCleese's past work as a security guard and assembler of small products. (R. 361-62.)
However, the VE testified that, if an individual was limited to sitting for less than one hour and standing/walking for less than one hour in an eight-hour workday; lifting or carrying up to five pounds; occasionally climbing ramps and stairs but no climbing ladders, ropes or scaffolds; occasional balancing, stooping, crouching, kneeling or crawling; avoiding unprotected heights and hazardous machinery; would be off task fifteen percent of the workday in addition to regularly scheduled breaks; and would be absent from work three or more times a month, then that individual could not perform any work on a full-time gainful basis. (R. 364-65.) In addition, the VE testified that an individual who required multiple unscheduled breaks for up to thirty minutes at a time could not perform any of McCleese's prior jobs. (R. 365-66.)
V. ALJ Cascio's Decision And Appeals Council Review
Following the five-step process, see infra Legal Standards Section II, ALJ Cascio determined that McCleese did not have a disability within the meaning of the Act. (R. 328-36.) The ALJ found at step one that McCleese had not engaged in substantial gainful activity during the period from his alleged onset date to the date last insured. (R. 330.) At step two, the ALJ determined that McCleese had the severe impairment of lumbar spine radiculopathy. (Id.)
At step three, the ALJ found that McCleese did not have an impairment or combination of impairments that met or equaled the severity of one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. (R. 331.) In making this decision, the ALJ considered Listing 1.04 for disorders of the spine, but found that the record did not demonstrate compromise of the nerve root with the requisite additional findings. (Id.)
The ALJ then assessed McCleese's Residual Functional Capacity ("RFC") and determined that he was able to perform light work, except he could occasionally climb ramps and stairs, but never ladders, ropes or scaffolds; could occasionally balance stoop, crouch, kneel and crawl; and must avoid unprotected heights and hazardous machinery. (R. 331-35.) Based on this RFC, the ALJ concluded at step four that McCleese could perform his past work as a security guard or assembler of small products as generally performed. (R. 335-36.) Thus, the ALJ concluded that McCleese was not disabled. (R. 336.)
Light work involves lifting and carrying 20 pounds occasionally and 10 pounds frequently. See 20 C.F.R. § 404.1567(b). It also generally requires standing/walking at least six hours a day and sitting the remainder of the day. See Social Security Ruling ("SSR") 83-106 (1983 WL 31251).
Following the ALJ's February 1, 2017 decision, McCleese sought review from the Appeals Council and requested additional time to submit exceptions. (R. 472.) The Appeals Council granted his request on March 21, 2017 and permitted an additional 30 days for McCleese to submit written exceptions to the ALJ's decision. (R. 323.) McCleese did not submit written exceptions by the new deadline, nor did he request additional time to file. It was not until November 22, 2017 that McCleese submitted exceptions, including additional evidence from an independent medical examiner, Dr. Joseph DeFeo, M.D. (R. 313-22.) On March 19, 2018, the Appeals Council denied McCleese's request for review. (R. 308-311.) The Appeals Council explained that McCleese's exceptions were not submitted within the time allowed and, therefore, it did not consider the specific exceptions. (Id.) Nonetheless, the Appeals Council indicated that it considered Plaintiff's "general disagreement" and found no basis to change the ALJ's decision. (Id.)
LEGAL STANDARDS
I. Standard Of Review
In reviewing a decision of the Commissioner, a court may "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). "The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does [the Court] determine whether the Commissioner's conclusions were supported by substantial evidence." Ulloa v. Colvin, No. 13-CV-4518 (ER), 2015 WL 110079, at *6 (S.D.N.Y. Jan. 7, 2015) (citing Tejeda v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)). "Even if the Commissioner's decision is supported by substantial evidence, legal error alone can be enough to overturn the ALJ's decision[.]" Id.; accord Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
Absent legal error, the ALJ's disability determination only may be set aside if it is not supported by substantial evidence. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (vacating and remanding ALJ's decision). "Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). "The substantial evidence standard is a very deferential standard of review—even more so than the clearly erroneous standard, and the Commissioner's findings of fact must be upheld unless a reasonable factfinder would have to conclude otherwise." Banyai v. Berryhill, No. 17-CV-01366, 2019 WL 1782629, at *1 (2d Cir. Apr. 24, 2019) (summary order) (quoting Brault v. Social Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (emphasis in original) (internal quotation marks omitted). If the findings of the Commissioner as to any fact are supported by substantial evidence, those findings are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995).
II. Determination Of Disability
Under the Act, every individual determined to have a "disability" is entitled to disability insurance benefits. 42 U.S.C. § 423(a)(1). The Act defines "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 result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
[A]n individual shall be determined to be under a disability only if [the combined effects of] his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § 423(d)(2)(A).
In determining whether an individual is disabled, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims:
I. At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled. . . .
II. At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 404.1509 [continuous period of 12 months], or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled. . . .
III. At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in appendix 1 of this subpart and meets the duration requirement, we will find that you are disabled. . . .
IV. At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled. . . .
V. At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education and work experience to see if you can make an adjustment to other work. If you can make an adjustment
to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled.20 C.F.R. § 404.1520.
If it is determined that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not progress to the next step. 20 C.F.R. § 404.1520(a)(4). After the first three steps (assuming that the claimant's impairments do not meet or medically equal any Listing), the Commissioner is required to assess the claimant's RFC "based on all the relevant medical and other evidence in [the claimant's] case record." 20 C.F.R. § 404.1520(e). A claimant's RFC is "the most [the claimant] can still do despite [the claimant's] limitations." 20 C.F.R. § 405.1545(a)(1).
The claimant bears the burden of proof as to the first four steps. Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). It is only after the claimant proves that she cannot return to work that the burden shifts to the Commissioner to show, at step five, that other work exists in the national and local economies that the claimant can perform, given the claimant's RFC, age, education and past relevant work experience. Id. at 51.
III. The Treating Physician Rule
An ALJ must follow specific procedures "in determining the appropriate weight to assign a treating physician's opinion." Estrella v. Berryhill, No. 17-3247, 2019 WL 2273574, at *2 (2d Cir. May 29, 2019). First, the ALJ must decide whether a treating physician's opinion is entitled to controlling weight. See id. The ALJ must give "controlling weight" to the opinion of a claimant's treating physician as to the nature and severity of the impairment as long as it "'is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.'" Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(2)); see also Halloran, 362 F.3d at 32 ("[T]he opinion of the treating physician is not afforded controlling weight where . . . the treating physician issued opinions that are not consistent with other substantial evidence in the record, [including] the opinions of other medical experts.").
If the ALJ decides the treating physician's opinion is not entitled to controlling weight, the ALJ must determine how much weight, if any, to give it. Estrella, 2019 WL 2273574, at *2. "Even if the treating physician's opinion is contradicted by other substantial evidence, and so is not controlling, it may still be entitled to significant weight 'because the treating source is inherently more familiar with a claimant's medical condition than are other sources.'" Tankisi v. Comm'r of Soc. Sec., 521 F. App'x 29, 33 (2d Cir. 2013) (summary order) (quoting Schisler v. Bowen, 851 F.2d 43, 47 (2d Cir.1988)). In deciding what weight to assign, the ALJ must "explicitly consider" the following, nonexclusive factors (the "Burgess factors"): "(1) the frequency, 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." Estrella, 2019 WL 2273574, at *2 (citing Burgess, 537 F.3d at 129) (additional citations omitted).
At both steps, the ALJ must "give good reasons in [its] notice of determination or decision for the weight [it gives the] treating source's [medical] opinion." Halloran, 362 F.3d at 32 (2d Cir. 2004) (quoting 20 C.F.R. § 404.1527(d)(2)); see also Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) ("The ALJ was required either to give [the treating physician's] opinions controlling weight or to provide good reasons for discounting them."). "An ALJ's failure to 'explicitly' apply the Burgess factors when assigning weight at step two is a procedural error." Estrella, 2019 WL 2273574, at *3 (citing Selian v. Astrue, 708 F.3d 409, 419-20 (2d Cir. 2013)). However, if "a searching review of the record" assures the Court "that the substance of the treating physician rule was not traversed," the Court should affirm. Id. (citing Halloran, 362 F.3d at 32.).
IV. Credibility Determinations
It is the function of the Commissioner, not the reviewing court, to "appraise the credibility of witnesses, including the claimant." Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). Social Security "regulations provide a two-step process for evaluating a claimant's assertions of pain and other limitations." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam). First, the ALJ must decide whether the claimant suffers from a medically determinable impairment that "could reasonably be expected to produce [the claimant's] alleged symptoms." 20 C.F.R. § 404.1529(b). If so, the ALJ "must then evaluate the intensity and persistence of [the claimant's] symptoms" to determine the extent to which the symptoms limit the claimant's capacity for work. 20 C.F.R. § 404.1529(c)(1).
"When determining a claimant's RFC, the ALJ is required to take the claimant's reports of pain and other limitations into account, but is not required to accept the claimant's subjective complaints without question; [the ALJ] may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record." Genier, 606 F.3d at 49 (internal citations omitted). A court must defer to an ALJ's finding and uphold the ALJ's decision to discount a claimant's subjective complaints if that finding is supported by substantial evidence. Aponte v. Sec'y, Dep't of HHS, 728 F.2d 588, 591 (2d Cir. 1984).
V. Consideration Of Additional Evidence Submitted To Appeals Council
When requesting review of an ALJ's decision, a claimant may submit "new and material evidence" to the Appeals Council. Perez v. Chater, 77 F.3d 41, 44 (2d Cir. 1996). The applicable regulations state that the Appeals Council will review a case if it "receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision." 20 C.F.R. § 404.970(a)(5). Material evidence is evidence that is "both relevant to the claimant's condition during the time period for which benefits were denied and probative[.]" Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988). However, new evidence submitted to the Appeals Council does not warrant remand unless it "add[s] so much as to make the ALJ's decision contrary to the weight of the evidence." Rutkowski v. Astrue, 368 F. App'x 226, 229 (2d Cir. 2010).
DISCUSSION
I. The ALJ Erred In Failing To Provide Good Reasons For The Little Weight Assigned To The Opinions of Dr. Polifrone , A Treating Physician
Plaintiff contends that the ALJ failed to properly weigh the medical opinion evidence. (Joint Stip. at 20.) Plaintiff argues that Dr. Polifrone's opinions should have been given controlling weight, as they were "based on appropriate clinical and objective findings" and were "uncontradicted by any findings that rise to the level of substantial evidence in the record[,]" but that even if the ALJ correctly accorded Dr. Polifrone's opinions less than controlling weight, he failed to provide good reasons for assigning them little weight. (Id.) The Court agrees.
In explaining his decision to accord Dr. Polifrone's opinions "partial" or "little" weight, the ALJ stated that Dr. Polifrone's opinions were more restrictive than the medical evidence warranted, citing Dr. McLean Long's description of McCleese's daily activities as well as a set of treatment notes from 2012 in which Dr. Polifrone noted that McCleese's prescriptions allowed him to perform his activities of daily living. (R. 334 (citing R. 275.) The ALJ also stated that "the medical evidence of record shows largely routine and conservative care." (R. 334.) The ALJ also discounted Dr. Polifrone's opinion regarding McCleese's nonexertional limitations because Dr. Polifrone "never opined that [McCleese] cannot drive[,]" which the ALJ found to contradict Dr. Polifrone's opinion that McCleese's medication interfered with his ability to concentrate or engage in the mental demands required of him to work. (R. 334 (citing R. 307.) The ALJ concluded that Dr. Polifrone's opinions were not consistent with her own treatment notes, the consultative examinations and McCleese's admitted activities of daily living. (R. 334.) However, the ALJ was required to assign Dr. Polifrone opinions as to the nature and severity of McCleese's impairment controlling weight, unless they were not supported by medically acceptable clinical and laboratory diagnostic techniques or were inconsistent with the other substantial evidence in the record. Moreover, the ALJ was required to provide good reasons for the weight accorded by considering the factors set forth in 20 C.F.R. § 404.1527(c)(2)(i), (2)(ii), (3)-(6). The Court finds that the ALJ failed to do so.
First, to the extent that the ALJ relied on evidence of McCleese's daily activities and "conservative care[,]" the Court finds that these are not good reasons to discount Dr. Polifrone's opinion. As for daily activities, the ALJ cited to evidence in the record that McCleese engaged in shopping, exercising, light cooking, watching television, reading and socializing with friends, which he found indicated a "higher level of functionality" than Dr. Polifrone's opinions allowed. (R. 334.) However, McCleese's ability to engage in certain daily activities on a limited basis is not inconsistent with the limitations described by Dr. Polifrone. See Cabrera v. Berryhill, No. 16-CV-04311 (AT) (JLC), 2017 WL 3172964, at *12 (S.D.N.Y. July 25, 2017), report and recommendation adopted sub nom. Cabrera v. Comm'r of Soc. Sec., 2017 WL 3686760 (S.D.N.Y. Aug. 25, 2017) (claimant's ability to perform some daily activities did not necessarily conflict with treating physician's opinion regarding functional limitations in eight-hour competitive work environment) (citing Murdaugh v. Sec'y of Dep't of Health & Human Servs. of U.S., 837 F.2d 99, 102 (2d Cir. 1988) ("[A] claimant need not be an invalid to be found disabled.")).
Further, to the extent that the ALJ discounted portions of Dr. Polifrone's opinions because she "never opined that claimant cannot drive" the ALJ failed to consider Dr. Polifrone's June 1, 2012 opinion that McCleese was unable to "drive for extended periods." (R. 271.)
Indeed, as the ALJ pointed out, Dr. Polifrone herself noted that McCleese's medication and home exercise helped him to perform activities of daily living. (R. 334 (citing R. 275).) Despite the ALJ's suggestion to the contrary, this does not render Dr. Polifrone's opinions inconsistent with her treatment notes. See Byrne v. Berryhill, 752 F. App'x 96, 98 (2d Cir. 2019) (summary order) ("no apparent contradiction" between limitations described in treating physician report and fact that physical therapy and home exercise had been "helpful"). Thus, without some discussion of the rigor or duration of McCleese's daily activities, or other indication that those activities were inconsistent with the limitations discussed by Dr. Polifrone, the Court finds that evidence of McCleese's activities did not provide a good reason for discounting Dr. Polifrone's opinions. See Cabrera, 2017 WL 3686760, at *4 (S.D.N.Y. Aug. 25, 2017) (ALJ "had an obligation to better explain his decision to discount [treating physician's] opinion based on [claimant's] alleged ability to perform daily activities, and to at least acknowledge the rigor of [claimant's] daily activities and the limitations she placed on those tasks.").
The only case cited by the Commissioner for the proposition that evidence of daily activities can constitute substantial inconsistent evidence to undermine the opinion of a treating physician (as opposed to substantial evidence to support an RFC determination) is Roma v. Astrue, 468 F. App'x 16, 18 (2d Cir. 2012) (summary order), which included daily activities as one of several reasons to discount a treating physician's decision. However, in Roma, the Court relied on inconsistent evidence from several other physicians in addition to the plaintiff's testimony regarding his daily activities. Id. On the present record, the Court finds that McCleese's daily activities do not constitute substantial evidence to contradict Dr. Polifrone's opinions.
Similarly, the ALJ's determination that the medical record showed "largely routine and conservative care" does not constitute substantial evidence to assign less than controlling weight to Dr. Polifrone's opinions. See Cabrera, 2017 WL 3686760, at *4 ("The opinion of a treating physician is not 'to be discounted merely because he has recommended a conservative treatment regimen.'") (quoting Burgess, 537 F.3d at 129); see also Alonso v. Berryhill, No. 17-CV-04769 (DF), 2018 WL 4997512, at *24 (S.D.N.Y. Sept. 27, 2018) (ALJ's reference to plaintiff's "conservative" care did not constitute "good reason" for discounting medical opinions of treating physicians) (citing cases).
The Court recognizes the Summary Order cited by the Commissioner, Tricarico v. Colvin, 681 F. App'x 98, 100-01 (2d Cir. 2017) (summary order), which upheld an ALJ's decision to afford limited weight to a treating physician's assessment based on, among other things, a conservative course of treatment. However, the Tricarico Summary Order does not have precedential effect and, in any event, there, the ALJ relied on additional evidence that the Court finds lacking here.
The ALJ also found that Dr. Polifrone's opinions were not consistent with the two consultative examinations. (R. 334.) The "conflicting opinions of other examining physicians, where supported by evidence in the record, can constitute substantial evidence to support not according the treating physician's opinion controlling weight, as well as good reasons to attribute only limited weight to that opinion." Tricarico, 681 F. App'x at 101; see also Mongeur, 722 F.2d at 1039 ("It is an accepted principle that the opinion of a treating physician is not binding if it is contradicted by substantial evidence and the report of a consultative physician may constitute such evidence.") (internal citation omitted).
Here, Dr. Corvalon opined that McCleese had "moderate" limitations in his ability to sit and stand for long periods, walk long distances, bend, squat, and lift heavy objects and Dr. McLean-Long opined that McCleese had "mild" limitations in his ability to carry, sit and stand. The Commissioner argues that these opinions "directly conflict[]" with Dr. Polifrone's opinion that McCleese could stand and/or walk for less than one hour, lift five to ten pounds and sit for one hour. Even assuming these opinions constitute substantial inconsistent evidence to accord less than controlling weight to Dr. Polifrone's opinions, see, e.g., Straughter v. Comm'r of Soc. Sec., No. 12-CV-0825 (DAB) (DCF), 2015 WL 6115648, at *17 (S.D.N.Y. Oct. 16, 2015) (opinion of one-time consultative examiner would need to be "sufficiently substantial" to constitute evidence that could undermine treating physician's opinion) (quoting Burgess, 537 F.3d at 128), and that such findings of mild or moderate limitations also could be read as conflicting with all of Dr. Polifrone's opinions, such as McCleese's need to take breaks or be absent from work (which the consultative examiners did not specifically address), the Court finds that the ALJ still failed to provide good reasons for assigning Dr. Polifrone's opinions little weight.
The Commissioner further argues that Dr. Polifrone's assessment that McCleese could not sit for more than one hour conflicted with the statements of his chiropractors that he could perform sedentary work. However, the ALJ assigned the chiropractor's opinions "partial weight" and, in any event, did not discuss the chiropractor's opinion as a reason for discounting Dr. Polifrone's opinion.
The Court notes that many of the cases cited by both the Commissioner and Plaintiff discuss the separate issue of whether such "vague" opinions can constitute substantial evidence in support of an ALJ's RFC determination. Compare Selian, 708 F.3d at 421 (consultative examiner's opinion that claimant could lift "objects of a mild degree of weight on an intermittent basis" too vague to constitute substantial evidence to support ALJ's finding that claimant could perform lifting requirements of light work ) with Tankisi v. Comm'r of Soc. Sec., 521 F. App'x 29, 34 (2d Cir. 2013) (summary order) (consultative examiner's opinions as to specific mild and moderate limitations, coupled with other medical evidence, constituted substantial evidence in support of ALJ's RFC determination); see also Quintana v. Berryhill, No. 18-CV-00561 (KHP), 2019 WL 1254663, at *17 (S.D.N.Y. Mar. 19, 2019) ("courts in this district have held that a medical source's use of the terms 'mild' or 'moderate' to describe a claimant's impairments does not automatically render their opinion vague as long as the opinion contains objective medical findings to support their conclusion."). However, because I find that the ALJ committed legal error, I do not address whether these opinions constitute substantial evidence in support of the ALJ's RFC determination.
First, the ALJ failed to explicitly consider the majority of the factors set forth in 20 C.F.R. § 404.1527(c)(2)(i), (2)(ii), (3)-(6). The ALJ did not discuss the frequency, length, nature or extent of McCleese's years-long treating relationship with Dr. Polifrone nor the fact that Dr. Polifrone is a specialist in physical medicine and rehabilitation. Moreover, the ALJ did not discuss the medical evidence that supported Dr. Polifrone's opinion. See 20 C.F.R. § 404.1527(c)(3) ("The more a medical source presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight we will give that medical opinion."). Dr. Polifrone's treatment notes consistently indicate positive straight leg tests, decreased Achilles reflex and other findings in support of her opinions. (R. 220, 222, 259-60, 276, 528, 836.) Dr. Polifrone specifically points to this evidence in the June 2012 Questionnaire in which she sets forth the specific clinical findings and test results in support of her opinions. (R. 259-260.) Among other things, Dr. Polifrone references the NCV/EMG studies confirming radiculopathy as well as positive straight leg tests, sensory loss, reflex changes and muscle weakness. (R. 260.) Nonetheless, the ALJ did not discuss any of the medical evidence in support of Dr. Polifrone's opinions. See Craig v. Comm'r of Soc. Sec., 218 F. Supp. 3d 249, 266 (S.D.N.Y. 2016) (remanding for failure to consider relevant factors, including, inter alia, evidence supporting treating physician's opinion); Randolph v. Colvin, No. 12-CV-08539 (LTS) (JLC), 2014 WL 2938184, at *12 (S.D.N.Y. June 30, 2014) (remanding when ALJ addressed only inconsistent evidence in explaining weight assigned to treating physician's opinion).
Because the ALJ procedurally erred in not explicitly addressing the required factors, "the question becomes whether a searching review of the record assures [the Court] that the substance of the [treating physician] rule was not traversed—i.e., whether the record otherwise provides 'good reasons' for assigning 'little weight' to [the treating physician's] opinion." Estrella, 2019 WL 2273574, at *3 (citing Halloran, 362 F.3d at 32) (internal brackets, ellipses and quotation marks omitted). The Court finds that it does not.
As set forth above, neither McCleese's activities of daily living nor Dr. Polifrone's "conservative" treatment plan constitute good reasons for assigning little weight to Dr. Polifrone's opinions. Further, while the ALJ was entitled to weigh the various opinion evidence in the record and assign the opinions of consultative examining physicians more weight than a treating physician, the Second Circuit has "frequently 'cautioned that ALJs should not rely heavily on the findings of consultative physicians after a single examination.'" Estrella, 2019 WL 2273574, at *5 (quoting Selian, 708 F.3d at 419); see also Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990) (consulting physician's opinion deserved limited weight because "consultative exams are often brief, are generally performed without benefit or review of claimant's medical history and, at best, only give a glimpse of the claimant on a single day") (internal quotation omitted).
Here, the ALJ gave great weight to Dr. McClean-Long's opinion because it was "based on a recent in-person examination of the claimant showing improvement in the claimant's functionality since [Dr. Corvalan's] earlier consultative examination in 2012." (R. 333-34.) The fact that Dr. McLean-Long's opinion was "recent" is not a reason to accord it more weight than Dr. Polifrone's opinions, particularly when the record includes later opinions and treatment notes from Dr. Polifrone. (See R. 534, 836-42.) And that fact that Dr. McLean-Long's opinion showed "improvement" from the earlier consultative examination is not itself a reason to assign the opinion more or less weight.
However, the Court agrees with the Commissioner that the fact that the consultative examiners did not review the EMG results does not mean that the ALJ could not assign their opinions greater weight. (See Joint Stip. at 16, 18.) Dr. Corvalan and Dr. McLean-Long were aware that Plaintiff experienced radicular pain. (R. 215, 217, 823.) Moreover, although the SSA will "give the examiner any necessary background information about [a claimant's] condition," the regulation does not mandate that particular evidence be furnished to the consultative examiner. 20 C.F.R. § 404.1517; see also Wright v. Berryhill, 687 F. App'x 45, 48 (2d Cir. 2017) (finding ALJ properly assigned great weight to medical source statement of consultative examiner, even though consultant's review did not include MRI findings).
For these reasons, the Court finds that the ALJ erred by failing to provide good reasons for assigning little weight to all of Dr. Polifrone's opinions. "The requirement that the Commissioner provide good reasons is particularly important in cases where, as here, ALJs issue decisions unfavorable to claimants because those reasons allow claimants to better understand the dispositions of their cases." Sink v. Berryhill, No. 16-CV-1094 (NSR) (PED), 2019 WL 1915291, at *4 (S.D.N.Y. Apr. 29, 2019) (citing Snell, 177 F.3d at 134). Thus, the Court recommends that the case be remanded to the Commissioner for further proceedings. See Halloran, 362 F. 3d at 33 ("We do not hesitate to remand when the Commissioner has not provided 'good reasons' for the weight given to a treating physician's opinion and we will continue remanding when we encounter opinions from ALJs that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion.").
II. The ALJ's Evaluation Of Plaintiff's Testimony
Plaintiff argues that the ALJ's findings "regarding McCleese's subjective allegations were insufficient" and seeks remand "to reevaluate the claimant's statements about his spine impairment." (Joint Stip. at 33.) The Commissioner argues that the ALJ properly considered McCleese's statements. (Id.)
The ALJ considered McCleese's subjective complaints and statements about his functioning, and found they did not demonstrate a complete inability to work. (R. 331-35.) Specifically, the ALJ found that McCleese's "medically determinable impairments could reasonably be expected to cause the alleged symptoms," but found McCleese's statements concerning the intensity, persistence and limiting effects of his symptoms "not entirely consistent with the medical evidence and other evidence in the record[.]" (R. 332.) In making his credibility determination, the ALJ considered McCleese's activities of daily living and treatment history, as well as the medical opinions in the record. (R. 332-33.) While the Court finds no legal error in the ALJ's analysis, because I recommend remanding the case based on the treating physician rule, the ALJ's proper evaluation of Dr. Polifrone's opinions may impact the ALJ's analysis of McCleese's credibility. See Rivera-Cruz v. Berryhill, No. 16-CV-02060 (RNC), 2018 WL 4693953, at *8 (D. Conn. Sept. 30, 2018). Accordingly, on remand the ALJ should reconsider his credibility determinations in light of any revisions he makes to the weight accorded to the medical opinions. III. The Appeals Council Did Not Fail To Properly Consider New Evidence , But Certain "New" Evidence Should Be Considered By The ALJ On Remand
See 20 C.F.R. § 404.1529(c)(3) (daily activities, modalities of treatment and medication proper considerations in evaluating symptoms such as pain).
Plaintiff argues that remand is warranted because it is unclear whether the Appeals Council considered the evidence from Dr. DeFeo, which he alleges it should have done. (Joint Stip. at 35-37.) The Court finds no error in the Appeal Council's failure to address the evidence from Dr. DeFeo that was submitted approximately seven months after the specified deadline.
As an initial matter, the report completed by Dr. DeFeo was not timely submitted to the Appeals Council. Thus, the Appeals Council did not need to consider the new material. See Reynolds v. Comm'r of Soc. Sec., No. 12-CV-01167, 2019 WL 2020999, at *4 (W.D.N.Y. May 8, 2019) (no error in Appeals Council's failure to consider additional evidence when plaintiff failed to act diligently).
In any event, Dr. DeFeo's opinion is only relevant to the extent it relates to McCleese's condition during the relevant period, which was from Plaintiff's alleged disability onset date (February 12, 2010) through the DLI, December 31, 2015. (R. 330.) "Medical evidence generated after an ALJ's decision cannot [be] deemed irrelevant solely because of timing" if it demonstrates that "during the relevant time period, [the claimant's] condition was far more serious than previously thought." Phoenix v. Colvin, No. 14-CV-04164 (AJP), 2015 WL 451016, at *23 (S.D.N.Y. Feb. 4, 2015) (citing Newbury v. Astrue, 321 F. App'x 16, 18 n.2 (2d Cir. 2009)). The Court finds that much of Dr. DeFeo's report is cumulative of other evidence in the record. See Tricarico, 681 F. App'x at 102 (finding assessment by Dr. DeFeo as to claimant's earlier condition "cumulative of other doctors who reviewed these same reports prior to the ALJ's decision."); see also Maniscalco v. Colvin, No. 13-CV-04359, 2015 WL 273689, at *16 (S.D.N.Y. Jan. 22, 2015) (finding reports from Dr. DeFeo authored after ALJ's decision did not require remand).
The September 2017 MRI is new evidence and, compared to previous MRIs, does appear to show a more serious condition. However, it is not clear that this MRI provides new information about McCleese's condition during the relevant time period, as opposed to a possible deterioration in his condition since that time. Because I recommend remanding this case for further proceedings on other grounds, on remand, the ALJ should consider whether evidence in Dr. DeFeo's report, including the September 2017 MRI, shed light on McCleese's condition during the relevant time period. See, e.g., Rolon v. Comm'r of Soc. Sec., 994 F. Supp. 2d 496, 510 (S.D.N.Y. 2014) (finding scans performed after date of ALJ's decision relevant to claimant's prior condition).
CONCLUSION
For the foregoing reasons, I recommend that the Commissioner's decision be vacated and this case be remanded for further proceedings, as set forth herein, pursuant to sentence four of 42 U.S.C. § 405(g). DATED: June 26, 2019
New York, New York
/s/ _________
STEWART D. AARON
United States Magistrate Judge
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS
TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed. R. Civ. P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Any requests for an extension of time for filing objections must be addressed to Judge Torres.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).