Opinion
21 Civ. 00340 (KMK)(JCM)
07-08-2022
CRYSTAL R. MORGAN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Honorable Kenneth M. Karas, United States District Judge:
Plaintiff Crystal R. Morgan (“Plaintiff”) commenced this action on January 14, 2021 pursuant to 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security (the “Commissioner”), which 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. 14), accompanied by a memorandum of law (“Pl. Br.”), (Docket No. 15); and (2) the Commissioner's cross-motion for judgment on the pleadings and in opposition to Plaintiff's motion, (Docket No. 21), accompanied by a memorandum of law (“Comm'r Br.”), (Docket No. 22). Plaintiff also submitted a reply memorandum in opposition to Defendant's cross-motion and in further support of Plaintiff's motion for judgment on the pleadings (“Pl. Reply Br.”), (Docket No. 24). For the reasons set forth below, I respectfully recommend Plaintiff's motion be granted, the Commissioner's cross-motion be denied, and the case be remanded 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 December 30, 1973. (R. 79). Plaintiff applied for DIB on March 27, 2019. (R. 197-203). In the application, Plaintiff alleged a disability onset date of July 1, 2018. (R. 197). Plaintiff's application was initially denied on August 13, 2019, (R. 63-79), and denied again after reconsideration on January 17, 2020, (R. 123-27), after which she requested a hearing on January 29, 2020. (R. 129). A hearing was held on May 1, 2020 before Administrative Law Judge (“ALJ”) Sharda Singh. (R. 36-61). ALJ Singh issued a decision on May 1, 2020 denying Plaintiff's claim. (R. 10-24). Plaintiff requested review by the Appeals Council, which was denied on November 9, 2020, (R. 1-4), making the ALJ's decision ripe for review.
Refers to the certified administrative record of proceedings relating to Plaintiff's application for social security benefits, filed in this action on August 20, 2021. (Docket No. 13). All page number citations to the certified administrative record refer to the page number assigned by the Social Security Administration (“SSA”).
The Court only summarizes the medical evidence relevant to the issues raised in this matter.
1. Physical Impairments
i. Middletown Medical
(a) Yinggang Zheng, M.D.
On April 14, 2014, Plaintiff had a lumbar mini open discectomy at left L3-L4 and L4-L5, after which she reported to Yinggang Zheng, M.D. (“Dr. Zheng”) that she felt her pain “significantly improved” from 9/10 to 3/10. (R. 1037). However, Plaintiff “still ha[d] neck and thoracic back pain which [came] from the disc degeneration and facet joints.” (R. 1039).
On October 28, 2016, Dr. Zheng performed a fluoroscopy and bilateral L3, L4, L5, and S1 medial branch radiofrequency ablation. (R. 896-97). At a follow-up visit on November 13, 2016, Plaintiff reported continued pain even after the procedure and Dr. Zheng believed the pain was mainly from the facet joint. (R. 886). He indicated that Plaintiff was not able to work for one month. (Id.). Dr. Zheng performed a fluoroscopy and bilateral T11, T12, L1 and L2 medial branch block on March 16, 2017. (R. 857).
On August 24, 2018, Plaintiff had another visit with Dr. Zheng after not seeing him for almost two years. (R. 436). Dr. Zheng noted that the lumbar facet joint block he administered in October 2016 gave her more than a 50% pain reduction. (Id.). Plaintiff complained of neck and lower back pain and reported that the pain greatly affected her daily activities. (Id.). Examination revealed that Plaintiff's thoracic spine was very tender on palpation from T10 to L1 on the left side, and that her lumbar spine had limited range of motion and tenderness to palpation. (R. 437). Plaintiff had a positive straight leg raise test on the right side. (Id.). Dr. Zheng ordered a bilateral facet joint block. (Id.).
Plaintiff saw Dr. Zheng again on September 15, 2018, complaining of back pain. (R. 43435). Plaintiff reported that the lumbar facet joint injection she received in August led to 60% reduction in her pain and increased range of motion. (R. 434). An examination revealed tenderness in Plaintiff's thoracic and lumbar spine, and limited range of motion and muscle spasm in her lumbar spine. (Id.). She also had a “mildly positive” straight leg raising test. (Id.). Dr. Zheng noted Plaintiff's good balance and coordination, and normal gait, sensation, motor strength and muscle tone. (Id.). Dr. Zheng administered a trigger point injection and ordered a bilateral facet joint radiofrequency ablation given that Plaintiff's pain had returned. (R. 435). On October 14, 2018, Dr. Zheng indicated that the radiofrequency ablation improved Plaintiff's pain by more than 50% from 8/10 to 4/10, though Plaintiff still had pain in other spinal areas that was aggravated by activity. (R. 431). He again indicated normal findings, though he noted Plaintiff's tenderness in her thoracic and lumbar spine and right hip, and limited range of motion of both shoulders. (R. 432).
Plaintiff saw Dr. Zheng again on December 9, 2018, reporting more than 50% pain improvement in her lower back after a medial branch radiofrequency ablation, but complaining of upper thoracic pain that she ranked at 7/10 with muscle spasm. (R. 428). Dr. Zheng noted that the pain “comes back” after medial branch blocks provided improvement. (Id.). On January 17, 2019, Dr. Zheng administered a bilateral medial branch block. (R. 426-27). At a follow-up visit on February 17, 2019, Plaintiff reported 50% improvement in her thoracic spine and complained of worsening neck pain. (R. 669). Examination revealed decreased range of motion in the cervical and lumbar spine, with tenderness in muscles in the cervical, thoracic and lumbar spine. (R. 671). Dr. Zheng administered trigger point injections. (R. 672).
Dr. Zheng gave Plaintiff medial branch blocks at ¶ 4, C5, C6 and C7 on April 4, 2019, (R. 651), and at ¶ 11, T12, L1 and L2 on June 25, 2019, (R. 1157). On August 16, 2019, Dr. Zheng performed a medial branch radiofrequency ablation. (R. 1159).
(b) Rajan Gulati, M.D.
On July 6, 2018, Plaintiff saw Rajan Gulati, M.D. (“Dr. Gulati”), complaining of lower back pain as well as numbness and weakness in both hands that caused her to drop things. (R. 417). Dr. Gulati's examination revealed paraspinal muscle spasm and tenderness in the lower lumbar area, and he assessed “low back pain, unspecified back pain laterality, unspecified chronicity, with sciatica presence unspecified;” bilateral hand numbness; and cervical pain. (R. 418-19). Dr. Gulati referred Plaintiff to neurology for her hand numbness, ordered an MRI of the cervical spine, and referred her to physical therapy for her neck pain. (R. 421). At a followup visit on July 23, 2018, Plaintiff complained of mid-back pain traveling down to her lumbar spine and legs. (R. 410). Dr. Gulati assessed thoracic spine pain, for which he prescribed Celebrex and Flexeril. (R. 412).
At a visit on October 2, 2018, Plaintiff reported persistent lower back pain that was well-controlled under current medications. (R. 392). Plaintiff saw Dr. Gulati again on January 14, 2019, and noted that the pain was worse, with her husband stating that she had been crying from it. (R. 383). She explained that the pain radiated down both of her legs, and “has been this way since she [was] 12.” (Id.). Dr. Gulati noted weakness in her right leg, and a positive range of motion of 50 degrees in both legs. (R. 385). At both the October 2018 and January 2019 visits, Dr. Gulati stated that Plaintiff had “paraspinal muscle spasm and tenderness in the lower lumbar area” with restricted flexion and extension of the back, which was painful at the extremes. (R. 385, 393). On March 28, 2019, Dr. Gulati indicated that “there is thoracic spinous process and left thoracic paravertebral muscle tenderness to palpation.” (R. 369).
(c) Physician Assistant Brandi Aquino
Plaintiff had several visits with Physician Assistant Brandi Aquino (“PA Aquino”)between February and December 2019, at which she rated her cervical spine pain as 5/10, thoracic spine pain as 5 to 9/10, and lumbar spine pain as 8 or 9/10. (R. 669-74, 1208-14, 121925, 1261-66, 1276-80, 1327-32). The pain was provoked by prolonged sitting and standing, lifting, and bending. (Id.). At these visits, PA Aquino prescribed and occasionally increased dosages of gabapentin and Cymbalta, and discussed scheduling bilateral medial branch blocks and radiofrequency ablation because conservative treatment was not working. (Id.). At the April 2019 visit, PA Aquino noted that Plaintiff's pain was “negatively impacting overall functional status and activities of daily living.” (1279). At the December 5, 2019 visit, Plaintiff stated that the bilateral medial branch block injections that she had in October 2019 gave her four weeks of significant pain relief with gradual recurrence two weeks ago. (R. 1327). The gabapentin she was taking helped her pain “somewhat,” and her pain worsened when she didn't take it for two weeks. (Id.). PA Aquino's examination revealed that Plaintiff was pleasant and in no acute distress, had normal motor strength, intact sensation, equal reflexes, and a normal gait, but had decreased range of motion in her lumbar spine and tenderness in her thoracic and lumbar paraspinal muscles and in her trapezius muscles. (R. 1330). PA Aquino administered trigger point injections, increased Plaintiff's gabapentin dose, and referred her to physical therapy and acupuncture. (Id.).
The regulations were amended in 2017 to add physician assistants to the list of acceptable medical sources and these new rules apply to Plaintiff's claim since it was filed after March 27, 2017. See 20 C.F.R. § 404.1502(a)(8).
(d) Kolo Ediale, M.D.
Plaintiff was seen by Kolo Ediale, M.D. (“Dr. Ediale”) for treatment of her diabetes and hypothyroidism. (R. 333-50, 1354-57). At a visit on February 19, 2020, she denied neck and joint pain, muscle aches and paresthesia, and had normal gross range of motion in her major joints. (R. 1356).
ii. Crystal Run Healthcare
In the relevant period, Plaintiff went for medical visits in November 2018 and May 2019 at Crystal Run Healthcare, during which she was seen for asthma treatment and evaluated for sleep apnea. (R. 351-54, 1372-80). At the May 14, 2019 visit, testing confirmed that Plaintiff had severe obstructive sleep apnea. (R. 1377-80).
iii. Orange Regional Medical Center
Plaintiff presented to the emergency department at Orange Regional Medical Center in June 2014, October 2016 and March 2019. (R. 512-33, 534-38, 545-62). At the June 2014 visit, she complained of back pain related to coughing. (R. 512). At the October 5, 2016 visit, Plaintiff presented with lumbar spine pain, which she described as aching, stiff, and shooting, as well as radiating down both legs and worsened by ambulation, bending and movement. (R. 534). A physical examination revealed normal cervical and thoracic back findings, with a positive bilateral straight leg raise test. (R. 536). She was diagnosed with acute exacerbation of chronic lower back pain with sciatica, and was prescribed a Medrol dose pack. (R. 537). In March 2019, she complained of thoracic back pain that radiated to the left flank and left chest, and felt “similar to previous back pain.” (R. 545). An examination revealed normal range of motion and no edema, but tenderness in her thoracic back. (R. 547).
iv. Gabriel Dassa, M.D.
On May 14, 2019, Plaintiff saw Gabriel Dassa, M.D. (“Dr. Dassa”) for an orthopedic evaluation for her worker's compensation claim. (R. 1097-99). A physical examination revealed that Plaintiff was in no apparent distress, and her sensation and motor functions were intact. (R. 1098). However, the examination revealed that there was “tenderness to palpation from L1 through L5-S1 with myospasm to the paraspinal muscle on palpation,” as well as decreased range of motion on flexion, extension, and lateral bending and rotation. (Id.). Plaintiff also had a positive straight leg raise test to the left. (Id.). Dr. Dassa determined that Plaintiff had lumbar spine disc bulging at the L3-L4 and L4-L5 with a prior history of lumbar spine surgery, and thoracic spine degenerative disc disease with disc bulging at ¶ 11-T12. (Id.). He recommended that Plaintiff continue with physical therapy and pain management and use a lumbar spine brace for support, and referred her to an orthopedic spine surgeon. (Id.).
v. Gilbert Jenouri, M.D. - Consultative Examination
On June 11, 2019, Gilbert Jenouri, M.D. (“Dr. Jenouri”) performed an internal medicine consultative examination. (R. 1106-09). Plaintiff reported that she cooked three times per week, and occasionally cleaned, did laundry, went shopping, showered, and got dressed. (R. 1107). Examination revealed that Plaintiff appeared in no acute distress, but had slightly antalgic gait, walked on heels and toes with difficulty, could squat only halfway, had a forward-tilting stance, and used a prescribed cane for pain and balance when outdoors. (Id.). Her gait improved when she used the cane, and she needed no help changing for the exam or getting on and off the exam table; she was also able to rise from the chair without difficulty. (Id.). Plaintiff had reduced flexion, extension, rotation and lateral flexion in her cervical spine and reduced extension, flexion, lateral flexion and rotation in her lumbosacral spine. (R. 1108). Her shoulder forward elevation and abduction, and hip flexion and extension, were decreased as well. (Id.). Her joints were stable and nontender without redness, swelling, or effusion and her deep tendon reflexes were equal, but she had decreased sensation of fine touch in her left leg. (Id.). She had intact hand and finger dexterity and 5/5 grip strength in both hands. (Id.). Dr. Jenouri diagnosed pain in Plaintiff's neck, lower back, both hips, and both knees, as well as radiculopathy in both legs, asthma, and COPD. (R. 1109). He opined that Plaintiff had moderate to marked restrictions in walking and standing long periods, bending, stair climbing, lifting, and carrying, and should avoid smoke, dust, and other known respiratory irritants. (Id.).
vi. S. Gandhi, M.D. - State Agency Medical Consultant
S. Gandhi, M.D. (“Dr. Gandhi”), a state agency medical consultant, reviewed the record on August 13, 2019. (R. 71-74). He opined that Plaintiff could occasionally lift ten pounds and frequently lift less than ten pounds; stand and/or walk two hours and sit about six hours in an eight-hour workday; frequently climb ramps and stairs; occasionally climb ladders, ropes and scaffolds; occasionally stoop, kneel, crouch and crawl; and frequently balance. (R. 71-72). Dr. Gandhi also concluded that Plaintiff must avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation and hazards like machinery and heights. (R. 72). He noted that Plaintiff did not have any manipulative limitations. (Id.).
vii. S. Naroditsky, M.D. - State Agency Medical Consultant
S. Naroditsky, M.D. (“Dr. Naroditsky”), a state agency medical consultant, reviewed the record on December 26, 2019. (R. 90-93). Dr. Naroditsky assessed the same exertional and environmental limitations as Dr. Gandhi, and most of the same postural limitations except that he stated that Plaintiff should never crawl or climb ladders, ropes or scaffolds. (R. 90-91).
viii. Diagnostic Imaging
On May 23, 2017, Plaintiff had a PET CT scan performed that was indicative of “multiple, small bilateral pulmonary nodules ranging up to approximately 1.1 cm in size oral without abnormal uptake. Regarding the smaller nodules which are subcentimeter in size, this is equivocal of malignancy given the recent enlargement.” (R. 822).
Plaintiff had an MRI of her cervical spine performed on July 27, 2018, which revealed minimal disc bulges at ¶ 3-4 and C4-5, and mild disc bulges at ¶ 5-6 and C6-7, with “mild right foraminal stenosis related to uncovertebral and facet arthropathy” at ¶ 3-4 and “[m]ild bilateral facet arthopathy” at ¶ 4-5, C5-6 and C6-7. (R. 408).
On January 14, 2019, an MRI of Plaintiff's lumbar spine showed small disc bulges at ¶ 3-L4 and at ¶ 4-L5, as well as degenerative disc disease at ¶ 11-T12 with a small disc bulge and prevertebral edema but no spinal stenosis. (R. 423-24). A further MRI was recommended. (R. 424).
An MRI of Plaintiff's thoracic spine on June 10, 2019 revealed mild degenerative spondylosis and left-sided disc herniations at ¶ 4-T5 and T11-T12, with the herniation at ¶ 4-T5 contacting and mildly distorting the ventral aspect of the spinal cord, but no spinal cord signal abnormality was observed. (R. 1104-05). Limited visualization of disc herniations in the cervical spine was also noted on scout imaging, and mild cardiomegaly was incidentally noted. (R. 1105).
2. Psychological Impairments
i. Middletown Medical
During an appointment on February 2, 2017 at Middletown Medical, Plaintiff underwent a PHQ-9 depression screening that revealed a score of 22, indicating “severe depression.” (R. 862). Plaintiff noted that she was depressed nearly every day. (Id.). However, at visits in July, August, September and October 2018, Plaintiff denied depression, anxiety and insomnia, and examinations revealed that Plaintiff was cooperative, alert, had an appropriate mood, had good eye contact, good judgment and insight, clear speech, and normal language and memory. (R. 403, 432, 434, 709, 725, 752). During the July 2018 visit, Plaintiff noted that she had anxiety during an MRI examination, and Dr. Gulati prescribed her Valium. (R. 410, 412). At a visit on January 14, 2019, Plaintiff stated that she had some anxiety about getting on a plane to fly to her son's graduation from Navy Bootcamp, and Dr. Gulati prescribed Xanax. (R. 383). Dr. Gulati's examination at this visit revealed that she was cooperative, had good eye contact, good judgment and insight, and clear speech. (R. 385). Plaintiff again denied depression, anxiety and insomnia at visits with PA Aquino in February, April, July, August, October and December 2019. (R. 671, 1210, 1221, 1263, 1278, 1329). In July 2019, Plaintiff reported to providers that her depression was episodic and did not require medication regularly, and she only used Xanax for an average of two-week periods at a time. (R. 1252). At the December 5, 2019 visit, PA Aquino's assessment was that Plaintiff was alert and oriented, and she had intact general knowledge and judgment within normal variation, as well as fluent speech. (R. 1330). At numerous visits in 2018 and 2019, Plaintiff was described by providers as “pleasant” and “very pleasant.” (R. 333, 342, 385, 1193).
PHQ-9 is a nine-item questionnaire that is used to make criteria-based diagnoses of depression. It scores each of the 9 DSM-IV criteria for depression as “0” (not at all) to “3” (nearly every day). Kurt Kroenke, Robert Spitzer, & Janet Williams, The PHQ-9: Validity of a Brief Depression Severity Measure, 16(9) J Gen INTERN MED. 606 (2001), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1495268/.
ii. Crystal Run Healthcare
During a visit with Dr. Ali Hmidi for surgery clearance on October 4, 2018, Plaintiff had a normal psychiatric exam; she was oriented to time, place, person and situation, and had appropriate mood and affect. (R. 353). Dr. Hmidi made the same psychiatric findings during a visit on May 17, 2019 when Plaintiff presented with asthma. (R. 1374).
iii. Orange Regional Medical Center
When Plaintiff presented at Orange Regional Medical Center with chest pain, a psychiatric evaluation revealed good eye contact, and normal affect and behavior. (R. 555).
iv. Konstantinos Tsoubris, Ph.D. - Consultative Examination
On June 20, 2019, Plaintiff underwent a psychiatric consultative examination by Konstantinos Tsoubris, Ph.D. (“Dr. Tsoubris”). (R. 1111-14). She stated that she had no history of hospitalizations or outpatient treatment and was not currently in treatment. (R. 1111). Plaintiff reported depressive and anxiety-related symptoms, a history of trauma, daily panic attacks, concentration difficulties, and potential visual hallucinations. (R. 1111-12). Plaintiff stated that she needed help to dress, bathe and groom herself and to prepare food, and said she only did laundry, went shopping with help, and did some general cleaning with help. (R. 1113). She only drove in emergencies but did take public transportation. (Id.). She noted that she barely socialized but her family relationships were great. (Id.).
Dr. Tsoubris' examination revealed that Plaintiff was cooperative, and had adequate social skills, fair grooming, appropriate eye contact, fluent speech, coherent and goal directed thought processes, clear sensorium, full orientation, average cognitive functioning, and good insight and judgment. (R. 1112-13). However, she had rigid posture, lethargic motor behavior, depressed affect, and impaired attention, concentration, and recent and remote memory skills “due to emotional distress secondary to depression.” (Id.). She was able to count and do simple calculations, but could not complete serial 7s or serial 3s. (R. 1113).
Dr. Tsoubris concluded that Plaintiff had moderate limitations in understanding, remembering and applying simple directions and instructions, and in maintaining personal hygiene and appropriate attire. (R. 1113-14). He assessed marked limitations in understanding, remembering and applying complex directions and instructions; interacting adequately with supervisors, coworkers, and the public; sustaining concentration and performing a task at a consistent pace; sustaining an ordinary routine and regular attendance at work; and regulating emotions, controlling behavior, and maintaining well-being. (R. 1114). Plaintiff was found to have no limitation in using reason and judgment to make work-related decisions and in being aware of normal hazards and taking appropriate precautions. (Id.). He stated that “[t]he results of the examination appear to be consistent with psychiatric problems and this may significantly interfere with [Plaintiff's] ability to function on a daily basis.” (Id.). Dr. Tsoubris gave a prognosis of “guarded” given the “severity of the symptoms and the interaction between the physical symptoms and her psychological symptoms.” (R. 1115).
v. C. Walker, Ph.D. - State Agency Review Psychologist
C. Walker, Ph.D. (“Dr. Walker”), a state agency review psychologist, reviewed the record on June 28, 2019. (R. 73-76). Dr. Walker opined that Plaintiff was not significantly limited in her ability to: remember locations and work-like procedures; understand, remember, and carry out very short and simple instructions, and detailed instructions; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; sustain an ordinary routine without special supervision; work in coordination with or in proximity to others without being distracted by them; make simple work-related decisions; interact appropriately with the general public; ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; get along with coworkers or peers without distracting them or exhibiting behavioral extremes; maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; respond appropriately to changes in the work setting; be aware of normal hazards and take appropriate precautions; travel to unfamiliar places or use public transportation; and set realistic goals or make plans independently of others. (R. 74-75). Dr. Walker found moderate limitations in Plaintiff's ability to maintain attention and concentration for extended periods; and complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (Id.). Though Dr. Walker recognized that her opinion conflicted with Dr. Tsoubris' opinion, which included greater limitations, Dr. Walker explained that Dr. Tsoubris's opinion was inconsistent with the record, and particularly with plaintiff's average cognition; her general fund of information, which was appropriate to experience; her adequate social skills; and her functional performance. (R. 76).
vi. S. Hennessey, Ph.D. - State Agency Review Psychologist
S. Hennessey, Ph.D. (“Dr. Hennessey”), a state agency review psychologist, reviewed the record on December 18, 2019. (R. 93-96). Dr. Hennessey's assessment of Plaintiff's mental abilities was identical to Dr. Walker's opinion. (Id.).
B. Non-Medical Evidence
1. Plaintiff's Function Report
On April 17, 2019, Plaintiff completed a function report. (R. 225-37). She described that she experienced pain in the back of her neck, spine, ribs, hips, legs, shoulders and feet that radiated to both arms and was severe, stabbing, crippling, excruciating, and felt like “being electrocuted.” (R. 233). Her injuries affected her sleep because it was very painful for her to lie down and she had to wake her husband to help her turn or get up. (R. 226). She stated that if she was in a lot of pain, she tried to sleep in her chair; otherwise, she tried to move around the house “a little bit.” (R. 225). Her husband also helped her dress, get in and out of the shower, and shave her legs, though she stated that she could feed herself. (R. 226). Someone also needed to help her get off the toilet, and her husband and sons helped her sit or lie down. (R. 227). She needed reminders to take care of her personal needs and grooming because she sometimes fell into depression “from so much pain” and didn't want to do anything, and she needed reminders to take her medicine. (Id.). Plaintiff reported that she tried to assist in making meals and washing laundry, and tried to feed her pets and “on good days,” tried to walk them. (R. 226). The meals she made were easy and fast because she could not stand for more than a half hour, and they did not require any heavy lifting. (R. 227). Sometimes she had food delivered or skipped meals because she was in too much pain, and her husband and son also did a lot of the cooking. (Id.). Plaintiff stated that she sometimes drove, though most of the time her husband or son drove her. (R. 228). She did her food shopping in stores, by phone and by computer. (Id.). Plaintiff reported enjoying arts and crafts, being outside, and being with family, though she did not do these activities often and mostly stayed home by herself. (R. 229). She did not have any social activities on a regular basis other than sometimes going to church, and socialized by speaking with her mother on the phone. (R. 229, 234).
Plaintiff stated that she could not lift more than five pounds, could not stand for more than half an hour, could not walk far or sometimes at all and needed a cane, and had to keep getting up and down when sitting. (R. 230). She only climbed stairs when she had to and held onto the rails on both sides, and could not kneel, squat or reach out far. (Id.). She reported using a back brace and cane, and being able to walk 30 to 40 yards before needing a 5 minute rest. (R. 231). Plaintiff had problems paying attention and finishing what she started, and sometimes had trouble remembering things. (R. 231-32). She reported taking tramadol and cyclobenzaprine, but stated that the medications did not relieve her pain and caused numerous side effects. (R. 23334).
Plaintiff reported being anxious when she left the house and talked to people in person or was in large crowds, and the anxiety was triggered by certain memories and smells. (R. 231, 236). Stress or changes in schedule also caused her bad anxiety. (R. 232). When she was anxious, she forgot words and talked backwards, (R. 231), and her chest tightened, she sweat, her face became red and hot, her heart beat fast, and she became dizzy, (R. 236).
2. Plaintiff's Husband's Third-Party Statement about Plaintiff's Daily Activities
Plaintiff's husband, Vincent Morgan, completed a third-party statement on April 7, 2019 regarding Plaintiff's daily activities. (R. 241-53). He stated that he cooked and prepared all the meals and did all the household chores, took his wife to and from all of her doctor's appointments, and helped her in and out of bed. (R. 242-43). He also helped her get dressed, bathe, shampoo her hair, and use the toilet at times. (Id.). He stated that Plaintiff could not sleep in a bed due to the pain and could not sit up after lying down. (R. 242). He also reported that Plaintiff hardly ever engaged in any of the activities she enjoyed, such as entertaining friends and family, exercising, cooking, hiking, camping, traveling and fishing, due to her pain and limited mobility. (R. 245). He stated that Plaintiff used a cane and brace/splint when walking long distances and described how her injuries affected her ability to lift, stand, walk, sit, climb stairs, kneel, squat, reach and use her hands. (R. 246-47). He also described Plaintiff's anxiety. (R. 251-52).
3. Plaintiff's Testimony
Richard LaRose, Esq. represented Plaintiff at her hearing on May 1, 2020. (R. 36).
Plaintiff testified that she hurt her back on July 1, 2018 when she was working as a nursing assistant at The Valley View nursing home and tried to roll a patient over. (R. 39, 41). Prior to this incident, Plaintiff had nerve damage, slipped discs, and arthritis in her spine, and had spinal surgery in April 2014. (R. 40). Between 2014 and July 1, 2018, Plaintiff had some pain, but she was released by her doctor to go back to work full-time without any restrictions other than a back brace that he prescribed. (Id.). Since July 1, 2018, she stated that she was “in a lot of pain 24 hours a day,” and unable to lift anything too heavy, stand for more than 15 to 20 minutes, sit for more than 10 to 15 minutes, or get off the toilet or into the shower unassisted. (R. 41, 51). In addition to her back pain, Plaintiff testified that she had arthritis in her neck, which caused daily pain that she rated at ¶ 8 out of 10, (R. 43), as well as in her hands, ribs, neck and hips. (R. 45). Plaintiff also had numbness in both hands. (R. 49). She testified that her pain made it very difficult for her to sleep because it was hard to lie flat on her back and she needed her husband to help her turn every couple of minutes, so she ended up sitting up in the recliner chair all night. (R. 45). She had to go up about 13 to 15 steps to get to her upstairs apartment, which gave her difficulty, and she had to use a handrail. (R. 55-56). Plaintiff took gabapentin and Flexeril for the pain, as well as used certain creams. (Id.). She also used a cane to help her balance and walk, as prescribed by her doctor. (R. 49).
Plaintiff testified that she had chronic obstructive pulmonary disease (COPD), which caused her to experience shortness of breath and for which she used an inhaler. (R. 44, 56). She stated that she also had anxiety and depression, but did not see a mental health specialist because she did not have the financial means to do so; her primary care doctor prescribed her mental health medication. (R. 44). Her anxiety occurred when she was out around people in public, but also happened when she was at home, for instance if she needed to make a phone call. (R. 55).
In terms of her daily activities, Plaintiff tried to watch television, but did not do much reading because it was hard for her to take in and remember what she read. (R. 51). Plaintiff estimated that she left the house maybe once per week, occasionally going to the food store with her husband or sons. (R. 50). Plaintiff drove “very little” and last drove two months prior when meeting a friend for coffee. (R. 53). She did not visit friends or relatives often, but once in a while, she went out with her husband to celebrate special occasions like their anniversary. (R. 54). When she was out with her husband at the restaurant, she experienced a lot of anxiety as well as pain from sitting, so she needed to keep standing up and sitting down. (Id.). Plaintiff used to enjoy outdoor activities like fishing, hiking, and camping, but stated that she can no longer do them because of her pain. (R. 47-48). Plaintiff explained that her husband and son took care of most household chores and mostly took care of the pets, though she tried to help with folding laundry and making the bed “every once in a while.” (R. 46-47, 54).
4. Vocational Expert Testimony
Vocational Expert (“VE”) Atkinson testified that Plaintiff's most recent work consisted of employment as a nurse assistant, which was medium work with a Specific Vocational Preparation (“SVP”) of 4. (R. 58). Upon questioning from counsel, VE Atkinson stated that as performed, it was heavy work. (R. 60). The ALJ posed a hypothetical to VE Atkinson, asking him to assume an individual of Plaintiff's age, education and past work experience, and with the following limitations: the individual requires a sit/stand option in which after 20 minutes to half an hour of sitting, she has to stand up for one to two minutes and then sit down without being off task; she can never climb ladders, ropes, or scaffolds; she can occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl; she balances with the use of a handheld assistive device; she can frequently do fine and gross hand manipulation bilaterally; she must avoid concentrated exposure to fumes, odors, dust and gases; she can understand, remember, and carry out simple, routine, repetitive, non-complex tasks; and she can have occasional contact with supervisors, coworkers, and members of the general public. (R. 58). VE Atkinson testified that such an individual would not be able to perform Plaintiff's past work. (Id.). VE Atkinson stated that such an individual would be able to perform other jobs in the national economy, such as document preparer and addresser, both of which have an SVP of 2. (R. 59). The ALJ then posed another hypothetical to the VE, assuming the same restrictions as in his RFC but with the additional limitation that the individual would be off-task for more than 15 percent of the workday due to unscheduled breaks. (Id.). VE Atkinson stated that such an individual could not perform any past work or any other jobs in the national economy because the generally accepted rate of time off task is up to 10 percent of the workday. (Id.).
C. The ALJ's Decision
ALJ Singh determined that Plaintiff meets the insured status requirements of the Social Security Act (“Act”) through December 31, 2024. (R. 12). Thereafter, ALJ Singh applied the five-step procedure established by the Commissioner for evaluating disability claims. See 20 C.F.R. § 404.1520(a). (R. 12-24). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged disability onset date, July 1, 2018. (R. 12). At step two, the ALJ determined that Plaintiff had the following severe impairments: (1) degenerative disc disease in the cervical, thoracic, and lumbar spine; (2) COPD; (3) emphysema; (4) asthma; (5) anxiety disorder; (6) depressive disorder; (7) hypothyroidism; (8) diabetes mellitus type II; (9) hypertension; and (10) obesity. (Id.). At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). (R. 13).
The ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) with the following limitations: she required a sit/stand option in which after 20 minutes to half an hour of sitting, she had to stand up for one to two minutes and then sit down without being off task; she could never climb ladders, ropes, or scaffolds; she could occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl; she balanced with the use of a handheld assistive device; she could frequently do fine and gross hand manipulation bilaterally; she had to avoid concentrated exposure to fumes, odors, dust and gases; she could understand, remember, and carry out simple, routine, repetitive, noncomplex tasks; and she could have occasional contact with supervisors, coworkers, and members of the general public. (R. 15). 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. (Id.). 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.” (R. 16). The ALJ reviewed the opinion evidence in the record, finding the opinions of Dr. Dassa and consultative examiner Dr. Tsoubris “unpersuasive;” and the opinion of consultative examiner, Dr. Jenouri, “persuasive.” (R. 20-22). She also found the opinions of the four state agency medical consultants, Drs. Gandhi, Naroditsky, Walker, and Hennessey, “persuasive” but found that the evidence at the hearing indicated additional restrictions. (R. 20-21).
At step four, the ALJ determined that Plaintiff could not perform any past relevant work based on her RFC. (R. 22). However, considering Plaintiff's age, education, work experience and RFC, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, namely document preparer and addresser. (R. 23). The ALJ thereafter concluded that Plaintiff was not disabled under the Act at any time from July 1, 2018 through the date of her decision. (R. 24).
II. DISCUSSION
Plaintiff argues that the ALJ's decision should be reversed and remanded for further administrative proceedings because the ALJ's RFC determination and step five finding of disability are not supported by substantintiff's credibility and evaluating her subjective complaints; and the ALJ failed to develop the record. (Pl. Br. at 14-25). The Commissioner argues that the ALJ's decision should be affirmed because substantial evidence supports the ALJ's RFC findings, the ALJ's evaluation of Plaintiff's subjective complaints, and the ALJ's determination that there were a significant number of other jobs in the national economy that Plaintiff could do. (Comm'r Br. at 22-36). The Commissioner also contends that the record was fully developed. (Comm'r Br. at 36-38).
Plaintiff also argues in her reply that the ALJ incorrectly relied on non-examining, reviewing medical sources over Plaintiff's treating physicians' opinions, (Pl. Reply Br. at 4-7), and that the Commissioner improperly provides post hoc rationalizations for the ALJ's decision, (Id. at 7). Generally, arguments that are raised for the first time on reply are waived. Sanchez v. Saul, No. 18-CV-12102(PGG)(DF), 2020 WL 2951884, at *28 (S.D.N.Y. Jan. 13, 2020), report and recommendation adopted sub nom. Sanchez v. Comm'r of Soc. Sec., 2020 WL 1330215 (S.D.N.Y. Mar. 23, 2020). Even if not waived, Plaintiff's argument that the ALJ improperly weighed the treating physician opinions is unavailing given that the treating physician rule does not apply to Plaintiff's claims. See 20 C.F.R. § 404.1520c(a). It is also “well-settled” that a one-time opinion, like that of a consultative examiner, “may be given great weight and may constitute substantial evidence to support a decision.” Oleske v. Berryhill, 18-CV-74(JLS), 2020 WL 1643860, at *4 (W.D.N.Y. Apr. 2, 2020); see also Poole v. Saul, 462 F.Supp.3d 137, 156 (D. Conn. 2020). Similarly, because State agency physicians and disability examiners are qualified experts in the evaluation of disability claims, an ALJ may properly consider their analysis of a claimant's functional requirements when they are consistent with the record as a whole. See Marshall v. Astrue, No. 1:11-722, 2012 WL 5866077, at *7 n.10 (N.D.N.Y. Oct. 18, 2012), report and recommendation adopted, 2012 WL 5866516 (N.D.N.Y. Nov. 19, 2012); see also Wells v. Comm'r of Soc. Sec., 338 Fed.Appx. 64, 66 (2d Cir. 2009) (summary order). As to Plaintiff's second argument on reply, which she does not adequately develop, the Court acknowledges that to the extent the Commissioner provides post hoc rationalizations for the ALJ's decision, this Court cannot and does not rely on them. See McClain v. Barnhart, 299 F.Supp.2d 309, 324 (S.D.N.Y. 2004) (“[T]he court ‘may not accept appellate counsel's post hoc rationalization for agency action.'”).
A. Legal Standards
A claimant is disabled if he or 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 “residual functional capacity” 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 residual functional capacity, 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 he or she is 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.
On January 18, 2017, the SSA considerably revised its regulations for evaluating medical evidence. The rules went into effect on March 27, 2017, and therefore, apply to the instant case. Under the new regulations, the treating physician rule no longer applies. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Therefore, no special deference is given to the treating physician's opinion. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, “[the Commissioner] will articulate in [his] determination or decision how persuasive [he] find[s] all of the medical opinions.” 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The updated regulations also define a “medical opinion” as “a statement from a medical source about what [the claimant] can still do despite [their] impairment(s) and whether [they] have one or more impairment-related limitations or restrictions” in their “ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions . . . ” 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). Thus, a medical opinion must discuss both a claimant's limitations and “what [the claimant] is still capable of doing” despite those limitations. Michael H. v. Saul, 5:20-CV-417(MAD), 2021 WL 2358257, at *6 (N.D.N.Y. June 9, 2021). Relatedly, conclusory statements by a claimant's provider concerning issues reserved to the Commissioner - for instance, whether the claimant is disabled under the Act - are “inherently neither valuable nor persuasive” and will not be analyzed by the ALJ. 20 C.F.R. §§ 404.1520b(c), 416.920b(c).
B. ALJ's Duty to Develop the Record
Plaintiff argues that the ALJ failed to develop the record because she did not contact Plaintiff's treatment providers for their medical opinions about her ability to do work-related activities. (Pl. Br. at 24-25). The Commissioner responds that the record was fully developed as the ALJ had sufficient evidence on which to base her decision. (Comm'r Br. at 38). The Commissioner also contends that Plaintiff's argument is generic and vague and fails to acknowledge that the ALJ attempted to obtain a medical source statement from Crystal Run Healthcare, and that Plaintiff's attorney admitted at the hearing that the record was complete. (Id. at 36-38).
Initially, the Court must be satisfied that the record is fully developed before determining whether the Commissioner's decision is supported by substantial evidence. See Smoker v. Saul, No. 19-CV-1539(AT)(JLC), 2020 WL 2212404, at *9 (S.D.N.Y. May 7, 2020) (“Whether the ALJ has satisfied this duty to develop the record is a threshold question.”). “[I]n light of the ‘essentially non-adversarial nature of a benefits proceeding[,]'” “[a]n ALJ, unlike a judge at trial, has an affirmative duty to develop the record.” Vega v. Astrue, No. 08-Civ-1525(LAP)(GWG), 2010 WL 2365851, at *2 (S.D.N.Y. June 10, 2010) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)). “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 v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (citing Perez v. Chater, 77 F.3d 41, 48 (2d. Cir. 1996)); see also Pellam v. Astrue, 508 Fed.Appx. 87, 90 (2d Cir. 2013).
Plaintiff states in a conclusory manner that the ALJ erred by failing to contact her treatment providers for medical opinions, but does not explain who the ALJ should have contacted specifically or what gap in the record their opinions would fill. (Pl. Br. at 25). “It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones.” Lynette W. v. Comm'r of Soc. Sec., No. 19-CV-1168(FPG), 2021 WL 868625, at *4 (W.D.N.Y. Mar. 9, 2021). Further, the ALJ did, in fact, attempt to obtain a medical source statement from Crystal Run Healthcare. (R. 304-06).
To the extent that Plaintiff is arguing that the record requires a medical opinion from a treatment provider, that argument is erroneous given the change in regulations that removed the treating physician rule and no longer gives opinions of treating physicians controlling weight. See 20 C.F.R. § 404.1520c(a).
Moreover, the record consists of extensive medical records from Middletown Medical, (R. 333-50, 367-508, 633-1077, 1117-31, 1157-1340, 1345-71), Crystal Run Healthcare, (R.351-66, 1372-80), and Orange Regional Medical Center, (R. 509-632); numerous diagnostic records, (R. 408, 423-24, 822, 1104-05); medical records from Plaintiff's worker's compensation claim, (R. 1097-99, 1141); medical opinions from two consultative examiners, (R. 1106-09, 1111-14), and four state agency medical consultants, (R. 71-74, 73-76, 90-93, 93-96); Plaintiff's testimony, (R. 36-56); Plaintiff's function report, (R. 225-37); and Plaintiff's husband's third-party statement, (R. 241-53). In addition, when asked at the hearing whether the record was complete, Plaintiff's attorney stated, “I believe that it is, Judge, yes,” and he did not raise any objections to it. (R. 37). See David B. C. v. Comm'r of Soc. Sec., No. 1:20-CV-01136(FJS)(TWD), 2021 WL 5769567, at *7 (N.D.N.Y. Dec. 6, 2021) (finding that the ALJ fulfilled her duty to develop the record where “Plaintiff did not object to the contents of the record or identify any gaps that need to be filled... In fact, Plaintiff's counsel affirmatively stated the record was complete.”).
Accordingly, I respectfully recommend finding that the are no obvious gaps in the record and the ALJ fulfilled her duty to develop the record.
C. The ALJ's RFC Assessment
Plaintiff argues that the ALJ's RFC assessment is not supported by substantial evidence because the ALJ offers no citation to the record to support the RFC, cherry-picks portions of doctors' opinions to support her opinion while ignoring other opinions, and fails to support the sit/stand option with medical opinion evidence. (Pl. Br. at 14-18). The Commissioner contends that the RFC is supported by substantial evidence, specifically by medical opinions, treatment records and Plaintiff's activities of daily living. (Comm'r Br. at 22-26). The Commissioner also argues that the fact that no medical source specifically restricted Plaintiff to a sit/stand option is immaterial because the ALJ made additional restrictions beyond those in any medical source, and did not need to formulate an RFC to “perfectly correspond with a medical opinion.” (Id. at 26-27).
The Court addresses Plaintiff's arguments about cherry-picking in the section on Plaintiff's subjective complaints because it is not necessary to the Court's recommendation relating to 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 v. Comm'r of Soc. Sec., 676 Fed.Appx. 5, 8 (2d Cir. 2017). 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). Therefore, 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).
Plaintiff's claim that “[t]he ALJ offers no citation to the record as to medical evidence in support of his RFC determination” has no merit. (Pl. Br. at 16). In fact, in support of her RFC determination, the ALJ cites to numerous medical records and to the opinions of Drs. Jenouri, Gandhi, Naroditsky, Hennessey, and Walker, all of which she found persuasive. (R. 15-22).
The inclusion of a sit/stand option itself in the RFC was also not an error. Even where there is “no medical opinion providing the specific restrictions reflected in the ALJ's RFC determination, such evidence is not required when ‘the record contains sufficient evidence from which an ALJ can assess [Plaintiff's] residual functional capacity.'” Cook v. Comm'r of Soc. Sec., 818 Fed.Appx. 108, 109 (2d Cir. 2020); see Matta v. Astrue, 508 Fed.Appx. 53, 56 (2d Cir. 2013) (the ALJ's RFC does not need to “perfectly correspond” with any of the medical opinions). Though no medical opinion included a sit/stand option, the record shows that Plaintiff's pain was aggravated by prolonged sitting, (R. 1208-14, 1219-25, 1261-66, 1276-80, 1327-32), and that she needed to continuously get up and down when sitting, (R. 54, 230). Given the evidence in the record regarding Plaintiff's difficulties with prolonged sitting, the ALJ was required to include a sit/stand option in her RFC. See Falk v. Colvin, No. 15-CIV-3863(ER)(KNF), 2016 WL 4411423, at *5 (S.D.N.Y. Aug. 18, 2016) (ALJ's RFC assessment was incomplete where “the ALJ made no determination as to the frequency with which Plaintiff would need to alternate between sitting and standing.”). Further, although the ALJ's inclusion of the sit/stand option here deviated from the medical opinions, courts have found no error when additional functional restrictions are included in the RFC as long as they are supported by other evidence in the record. See Ramsey v. Comm'r of Soc. Sec., 830 Fed.Appx. 37, 39 (2d Cir. 2020) (finding that the ALJ did not err where he occasionally deviated from consultative examiners' recommendations to decrease [plaintiff's] RFC based on other evidence in the record).
“Although medical opinion evidence in the record supports a determination that Plaintiff required a sit/stand option,” there is no support in the record and “inadequate analysis” in the ALJ's decision for the specific sit/stand limitation she included in the RFC - sitting for twenty minutes to half an hour and then standing up for one to two minutes. See Lakisha D. W. v. Comm'r of Soc. Sec., No. 1:20-CV-1122(WBC), 2021 WL 5996972, at *3 (W.D.N.Y. Dec. 20, 2021). In fact, Plaintiff testified at the hearing that she could “maybe [sit] 10-15 minutes” at one time. (R. 51). The ALJ does not explain why she disregarded Plaintiff's testimony in formulating the sit/stand option, only stating that she added this sit/stand option “due to a combination of obesity and degenerative disc disease of the back.” (R. 19). Without an explanation, the Court cannot determine the basis for this aspect of the RFC and does not see any support in the record for this specific limitation. “In weighing evidence, the ALJ ‘cannot arrive at specific limitations that do not appear anywhere in that evidence.'” Laura A. v. Comm'r of Soc. Sec., No. 20-CV-610, 2022 WL 464227, at *5 (W.D.N.Y. Feb. 15, 2022) (finding that the ALJ impermissibly based his RFC finding regarding a specific sit/stand option on his own surmise rather than medical opinion and thus it was not supported by substantial evidence). Further, the specifics of the sit/stand option may change the outcome of a disability determination because “[Plaintiff's] need to alternate among sitting, standing, and walking ‘may erode the occupational base'-for example, by making even sedentary or light work impossible to perform.” Linda H. v. Comm'r of Soc. Sec., No. 19-CV-1244(LJV), 2021 WL 2075437, at *3 (W.D.N.Y. May 24, 2021).
Accordingly, I respectfully recommend finding that the limitation that Plaintiff can sit for twenty minutes to a half an hour before needing to stand for one to two minutes is not based on substantial evidence and that remand is required for the ALJ to re-evaluate Plaintiff's RFC. On remand, the ALJ should “ensure that every portion of [her] RFC assessment is supported by medical evidence in the Record.” Shafer v. Saul, No. 20-CV-3060(VSB)(DCF), 2022 WL 827075, at *18 (S.D.N.Y. Jan. 20, 2022), report and recommendation adopted, 2022 WL 826411 (S.D.N.Y. Mar. 18, 2022); see also Towers v. Astrue, No. 09-CV-00070(GTS), 2010 WL 3338724, at *8 (N.D.N.Y. June 8, 2010), report and recommendation adopted sub nom. Towers v. Comm'r of Soc. Sec., 2010 WL 3338733 (N.D.N.Y. Aug. 24, 2010).
D. The ALJ's Step Five Finding
Plaintiff argues that the ALJ's finding that there are significant numbers of jobs in the national economy that Plaintiff can perform is not supported by substantial evidence and that the ALJ improperly interrupted the VE during his testimony. (Pl. Br. 18-21). Plaintiff appears to take issue with the hypothetical that the ALJ posed to the VE, specifically its inclusion of the sit/stand option which Plaintiff claims has no support in the record. (Id.). The Commissioner responds that substantial evidence supports the ALJ's step five finding, and that the ALJ did not err in interrupting the VE. (Comm'r Br. at 35-36).
“An ALJ may rely on a vocational expert's testimony regarding a hypothetical as long as the facts of the hypothetical are based on substantial evidence . . . and accurately reflect the limitations and capabilities of the claimant involved.” Calabrese v. Astrue, 358 Fed.Appx. 274, 276 (2d Cir. 2009) (internal citations omitted). “When the testimony of a vocational expert is used, the ALJ must present a hypothetical that incorporates all of Plaintiffs impairments... If the ALJ fails to pose hypothetical questions that include all of a claimant's impairments, limitations and restrictions, or is otherwise inadequate, a vocational expert's response cannot constitute substantial evidence to support a conclusion of no disability.” Harkins v. Colvin, No. 15-CIV-5223(NSR)(JCM), 2016 WL 8669981, at *18 (S.D.N.Y. Dec. 8, 2016), report and recommendation adopted, 2017 WL 1239655 (S.D.N.Y. Mar. 31, 2017); see also Banks v. Colvin, No. 10-CIV-6462(KMK)(JCM), 2016 WL 5478467, at *14 (S.D.N.Y. July 8, 2016), report and recommendation adopted, 2016 WL 5468302 (S.D.N.Y. Sept. 27, 2016).
Plaintiff's argument that the ALJ improperly interrupted the VE, resulting in a change of his testimony, is without merit. The hearing transcript shows that the VE began answering the ALJ's question based on an incorrect assumption that the hypothetical individual “had difficulty doing any work in a standing position,” and the ALJ interrupted in order to clarify that her hypothetical involved a sit/stand option rather than the inability to stand altogether. (R. 58-59). An ALJ's interruptions of hearing testimony that intend to “further-not disrupt-the fact finding process” are not improper and do not warrant remand on the basis of bias. Maldonado v. Berryhill, No. 16-CV-165(JLC), 2017 WL 946329, at *30 (S.D.N.Y. Mar. 10, 2017).
Plaintiff also objects to the inclusion of the sit/stand option in the hypothetical because it is not supported by substantial evidence. It was not error for the ALJ to pose the hypothetical including the sit/stand option to the VE at the hearing. See, e.g. Burgin v. Astrue, No. 04-CV-6625, 2008 WL 11438127, at *4 (W.D.N.Y. Jan. 11, 2008) (discussing that the ALJ posed several hypotheticals to the VE at the hearing that asked the VE to name an occupation that was sedentary with a sit/stand option). However, the ALJ erred by relying on the VE's response to this hypothetical in formulating her opinion because there is not substantial evidence in the record to support the specific sit/stand limitation in this hypothetical, as discussed above. Though the Commissioner asserts that this argument is “simply a rehashing of her argument that the ALJ's [RFC] was deficient because it included a specific sit/stand option that was not contained in any medical opinion,” (Comm'r Br. at 35), “when an RFC determination is not supported by substantial evidence, a hypothetical based on that RFC is not proper and warrants remand,” Munnings-Bah v. Saul, No. 19-CIV-3510(LJL)(RWL), 2020 WL 5755065, at *21 (S.D.N.Y. Sept. 14, 2020), report and recommendation adopted sub nom. Bah v. Comm'r of Soc. Sec., 2020 WL 5880182 (S.D.N.Y. Oct. 2, 2020); see also McClinton v. Colvin, No. 13-CV-8904(CM)(MHD), 2015 WL 6117633, at *33 (S.D.N.Y. Oct. 16, 2015) (“[W]hen a remand is already necessary to properly determine the plaintiff's RFC, the vocational-capacity finding must also be remanded when it was based on the testimony of a VE answering a similarly flawed hypothetical.”).
Accordingly, I respectfully recommend remanding the case on the basis of the vocational-capacity finding. On remand, if the ALJ relies on a VE's response to a hypothetical, she must ensure that each component of the hypothetical is supported by substantial evidence.
E. ALJ's Evaluation of Plaintiff's Subjective Complaints
Plaintiff argues that the ALJ erred in assessing her credibility and failed to properly evaluate her subjective statements by cherry-picking evidence in the record to discount Plaintiff's complaints, and overlooked evidence in the record regarding Plaintiff's depression, anxiety and pain. (Pl. Br. at 16-17, 21-24). The Commissioner contends that the ALJ did not overlook Plaintiff's complaints of depression and pain because she considered Plaintiff's statements and because there was countervailing evidence in the record of Plaintiff's conservative treatment and activities of daily living. (Comm'r Br. at 31-34).
“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 and citations 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).
The factors that an ALJ should consider in evaluating the claimant's credibility are: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medications taken to alleviate the symptoms; (5) any treatment, other than medication, that the claimant has received for relief of the symptoms; (6) any other measures that the claimant employs to relieve the symptoms; and (7) other factors concerning the claimant's functional limitations and restrictions as a result of the symptoms.Hamm v. Colvin, No. 16-CV-936(DF), 2017 WL 1322203, at *18 (S.D.N.Y. Mar. 29, 2017) (citing 20 C.F.R. § 404.1529(c)(3)(i)-(vii)).
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 entirely consistent with the medical evidence and other evidence in the record.” (R. 16). The ALJ noted Plaintiff's statements in her function report about her need to rest when walking and her descriptions of her pain, as well as her husband's statement that he helps Plaintiff dress and shampoo her hair. (R. 16). The ALJ also referenced Plaintiff's testimony, including that she needs help getting off the toilet or into the shower, that her pain radiates throughout her body, that she has numbness and drops things, that she has shortness of breath after taking a few steps and when she is feeling anxious, that she was miserable due to her pain, and that she had not seen a specialist for her mental impairments due to finances. (R. 16-19). However, the ALJ determined that the record showed that her mental and physical impairments were not as severe as alleged. (R. 19).
Plaintiff argues that the ALJ cherry-picked evidence in the record while ignoring other opinions, specifically disregarding evidence of severe depression, anxiety and Plaintiff's complaints of pain. (Pl. Br. at 17, 22-23). “Reviewing courts decry administrative cherrypicking of relevant evidence. This term refers to crediting evidence that supports administrative findings while ignoring conflicting evidence from the same source.” Jackson v. Comm'r of Soc. Sec., No. 16-CV-6183(KAM), 2019 WL 7283518, at *7 (E.D.N.Y. Dec. 27, 2019); see also Smith v. Bowen, 687 F.Supp. 902, 904 (S.D.N.Y. 1988) (“Although the ALJ is not required to reconcile every ambiguity and inconsistency of medical testimony... he cannot pick and choose evidence that supports a particular conclusion.”). While Plaintiff points out that the record included her PHQ-9 depression screening result with a score of 22, indicating severe depression, this result was from February 2, 2017, before the alleged disability onset date. (Pl. Br. at 17; R. 862). Plaintiff also points to evidence of treatment for anxiety. (Pl. Br. at 17). However, during the relevant period, Plaintiff denied depression and anxiety at numerous visits, which the ALJ noted, and the records show that Plaintiff was cooperative, alert, oriented, had an appropriate mood, had good eye contact, good judgment and insight, clear and fluent speech, normal language and memory, and intact general knowledge and judgment within normal variation at numerous examinations. (R. 385, 403, 432, 434, 671, 709, 725, 752, 1210, 1221, 1263, 1278, 1329, 1330). The ALJ also noted that Plaintiff's anxiety was tied to specific events, like flying to her son's graduation and needing to complete an MRI. (R. 18, 383, 410). The ALJ further referenced Plaintiff's statement that she would use Xanax for approximately two weeks at a time to help her through her episodes of depression, but that she “does not feel the need to be on it regularly.” (R. 19, 1252). Consequently, regarding Plaintiff's complaints of depression and anxiety, I respectfully recommend finding that the ALJ did not cherry-pick the evidence because she did not ignore evidence that would support Plaintiff's claim. Rather, the ALJ “weigh[ed] conflicting evidence” between Plaintiff's subjective statements and the rest of the record, which was her responsibility. Campos ex rel. Cruz v. Barnhart, No. 01-CIV-10005(SAS), 2003 WL 21243036, at *6 (S.D.N.Y. May 28, 2003).
On the other hand, I respectfully recommend finding that the ALJ cherry-picked the evidence regarding Plaintiff's complaints of physical pain. While she recognized that Plaintiff's pain was well-controlled at times and improved with therapeutic injections, (R. 19), the ALJ did not attempt to reconcile this with other evidence in the record from the same sources regarding Plaintiff's continued pain in other spinal areas or the fact that the injections provided only temporary relief, (R. 16-17). The ALJ notes that Plaintiff reported 50 to 60% pain reduction after therapeutic injections and a bilateral facet joint radiofrequency ablation in the lumbar spine. (R. 17). However, Dr. Zheng's records reveal that while Plaintiff reported such improvement, she also complained of worsening neck pain, (R. 669), and reported pain in other spinal areas that was aggravated by activity and ranked as high as 7/10 with muscle spasm, (R. 428, 431, 434). The record is clear that these injections provided temporary relief, and that Plaintiff needed to see Dr. Zheng and PA Aquino shortly thereafter for further treatment because the pain returned. (See, e.g., R. 435, 1327). Dr. Zheng states in his treatment notes that although the procedures reduced Plaintiff's pain, the pain “comes back.” (R. 428). Although Plaintiff reported at one visit with Dr. Gulati that the pain was well-controlled with medications, at the next visit a few months later, Plaintiff complained of worsened pain and her husband noted she had been crying from the pain. (R. 392). The ALJ cites to PA Aquino's treatment notes as support for Plaintiff's cervical conditions being unchanged or improving at times, (R. 17), but those same notes state that Plaintiff had worsening upper to mid- thoracic or thoracolumbar pain, (R. 1279, 1286); that the pain was “negatively impacting overall functional status and activities of daily living;” and that Plaintiff “failed >6 weeks of conservative therapy,” (R. 1279). Similarly, the ALJ cites to an earlier visit with PA Aquino at which Plaintiff's thoracic pain was improving, (R. 17), but those same treatment notes indicate that her cervical pain was worsening, (R. 672). At these visits, PA Aquino ordered medial branch blocks, (R. 672, 1279, 1285), and increased Plaintiff's gabapentin and Cymbalta doses, (R. 1279, 1285). Thus, the ALJ selectively cited to the record evidence supporting her conclusion, while ignoring evidence from the same sources that Plaintiff's pain kept returning or worsening. See Shafer, 2022 WL 827075, at *19 (“In finding. that Plaintiff was not as limited as she alleged, the ALJ highlighted only isolated and seemingly date-specific portions of the medical record that he had summarized” without attempting to reconcile evidence of Plaintiff's pain worsening); see also Vellone v. Saul, No. 120-CV-00261(RA)(KHP), 2021 WL 319354, at *9 (S.D.N.Y. Jan. 29, 2021), report and recommendation adopted sub nom. Vellone on behalf of Vellone v. Saul, 2021 WL 2801138 (S.D.N.Y. July 6, 2021) (finding that the ALJ cherry-picked treatment notes where “the very same records” he cited in support of his conclusion “indicate[d] that Plaintiff had worsening lower back pain, which led the examining physician... to recommend that Plaintiff receive epidural steroid injections and to increase Plaintiff's dose of gabapentin”).
In further support of the ALJ's determination that Plaintiff's subjective complaints were “not wholly supported by the objective evidence,” the ALJ states that Plaintiff was not prescribed a cane. (R. 19). The ALJ cites to Dr. Dassa's worker's compensation report from May 2019 in which he did not check off the box labeled cane, (R. 1096), in support of this conclusion, (R. 19). However, Dr. Jenouri's consultative examination, which the ALJ found persuasive, specifically stated that Plaintiff used a prescribed cane, (R. 1107), and Plaintiff testified that her cane was prescribed by a doctor, (R. 49). The ALJ fails to discuss this countervailing and more concrete evidence.
Accordingly, I respectfully recommend finding that the ALJ cherry-picked evidence in the record as to Plaintiff's complaints of physical pain, warranting remand.
Though the ALJ does not explicitly rely on Plaintiff's activities of daily living and conservative treatment in her evaluation of Plaintiff's subjective statements, the Commissioner argues that these two aspects of the record also support the ALJ's credibility assessment, (Comm'r Br. at 33). To the extent that these are post hoc rationalizations for the ALJ's decision, the Court may not consider them. See supra n.4. Even if the arguments do not constitute post hoc rationalizations, they are unavailing. The Commissioner argues that Plaintiff's activities of daily living support the ALJ's assessment of Plaintiff's subjective complaints. (Comm'r Br. at 33). The Commissioner highlights that Plaintiff could perform household chores, travel out-ofstate, drive, use public transportation, do arts and crafts, care for pets, and go out for coffee and to dinner on some occasions. (Comm'r Br. at 25, 30, 33). However, the Commissioner's selective citation to Plaintiff's reports of her daily activities is a mischaracterization of the evidence. For example, at her hearing, Plaintiff explained that her husband and son took care of most household chores and mostly took care of the pets, though she tried to help with folding laundry and making the bed “every once in a while.” (R. 46-47, 54). She also stated that she tried to feed her pets and “on good days,” tried to walk them. (R. 226). Plaintiff stated that though she made quick meals, sometimes she had food delivered or skipped meals because she was in too much pain, and her husband and son also did a lot of the cooking. (R. 227). Plaintiff's husband reported that he cooked and prepared all the meals and did all the household chores. (R. 242-43). Plaintiff testified that she drove “very little” and last drove two months prior, (R. 53), and that most of the time her husband or son drove her, (R. 228). Plaintiff also said that when she left the house once per week, she occasionally went to the food store with her husband or sons, (R. 50), but she did not claim to take care of grocery shopping on her own. When she went out with her husband for dinner to celebrate their anniversary, she reported experiencing a lot of anxiety as well as pain from sitting, for which she needed to keep standing up and sitting down. (R. 54). Thus, the Commissioner's citations to some of Plaintiff's daily activities is taken out of context and fails to acknowledge Plaintiff's claims of pain while doing these activities, as well as the substantial support she received from her husband. See Lisa E. v. Comm'r of Soc. Sec., No. 20-CV-0037(MWP), 2021 WL 4472469, at *9 (W.D.N.Y. Sept. 30, 2021) (noting plaintiff's similar activities of daily living were “fairly restricted” where they mostly resulted in pain and where she received substantial help from her husband).
The Commissioner also argues that Plaintiff's condition did not require more invasive treatment like surgery or hospitalization and suggests that such evidence counters Plaintiff's subjective complaints of pain. (Comm'r Br. at 32-33). However, “it is highly questionable” that Plaintiff's numerous multiple facet block injections and radiofrequency ablations “could be properly characterized as ‘conservative.'” Hamm, 2017 WL 1322203, at *24; Callahan v. Colvin, No. 6:14-CV-06553(MAT), 2015 WL 5712334, at *6 (W.D.N.Y. Sept. 29, 2015) (finding that nine epidural injections that did not provide “prolonged benefit” and multiple pain medication prescriptions was not an “especially conservative” treatment plan). Thus, the Commissioner's arguments regarding Plaintiff's treatment and activities of daily living do not support the ALJ's credibility evaluation regarding Plaintiff's complaints of physical pain.
In sum, I respectfully recommend remanding the matter to the ALJ for a proper assessment of Plaintiff's subjective complaints of physical pain.
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 Cty., 517 F.3d 601, 604 (2d Cir. 2008).