Opinion
22-cv-5003 (JGK) (JW)
08-22-2023
DIANE PATRICIA NICHOL, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
HONORABLE JOHN G. KOELTL, UNITED STATES DISTRICT JUDGE
Plaintiff Diane Patricia Nichol brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (the “Commissioner”) denying her claim for Social Security Insurance (“SSI”) under the Social Security Act (the “Act”). Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons stated below, this Court recommends that Plaintiff's motion be DENIED and the Commissioner's motion be GRANTED .
BACKGROUND
A. Procedural History
On September 1, 2017, Plaintiff applied for SSI asserting disability based on a dislocated disc, anxiety, depression, panic attacks, and migraine headaches. See Social Security Administration (“SSA”) Administrative Record (Dkt. No. 14) (hereinafter “R.__ ”) at 345-55, 375. The claim was initially denied on May 15, 2018. R. at 168. On June 16, 2018, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), R. at 174, which took place on August 19, 2019, before ALJ Paul Armstrong. R. at 85.
ALJ Armstrong then issued an unfavorable decision, which Plaintiff appealed to the Appeals Council and the Appeals Council remanded. R. at 31, 38. After a hearing on November 4, 2020, ALJ Armstrong became unavailable to preside over further proceedings or complete a decision. R. at 10. ALJ Thomas Sanzi was then appointed to preside over the matter. R. at 124.
In a decision dated July 21, 2021, ALJ Sanzi found that Plaintiff was not disabled as defined under the Act. R. at 7. Plaintiff subsequently requested Appeals Council review. R. at 1. The Appeals Council denied that request on April 20, 2022, rendering the ALJ's decision final. Id.
Plaintiff brought this action on January 6, 2023, contending that (i) the ALJ failed to properly evaluate the limiting effects of a medically necessary cane in the residual functional capacity (“RFC”) assessment, and (ii) the ALJ's RFC determination is unsupported by substantial evidence because he failed to properly evaluate the opinion evidence of record per the prevailing rules and regulations. Memo of Law in support of Pl.'s Mot. for Judgment on the Pleadings at 15-22 (Dkt. No. 17) (“Pl. Memo”). Plaintiff seeks remand for a directed finding of disability and calculation of benefits or for further administrative proceedings, including a new decision. Pl. Memo at 22.
B. Personal Background
Ms. Nichol was born on August 12, 1971. R. at 127. She attended school in Jamaica and left school prior to completion. R. at 134. In 2011, Ms. Nichol received a CNA certificate. Id. Ms. Nichol lives with her mother and husband. R. at 131.
Her past relevant employment history consists of working as a home health aide. R. at 22. As of June 23, 2021, Ms. Nichol worked about 7 hours per week at $19.00 per hour taking care of her mother as part of the Consumer Directed Personal Assistance Program (“CDPAP”) program. R. at 135.
Ms. Nichol has a long history of treatment for back impairments, and she eventually developed comorbidities, such as depression, panic attacks, anxiety, and foot ailments. R. at 137.
C. Plaintiff's Relevant Medical History
Ms. Nichol has an extensive medical history, which is separated into pre- and post-2017, when Plaintiff's alleged disability began.
a. Treatment Prior to the Relevant Period
From 2012 to 2017, Ms. Nichol received treatment from three sources (i) Montefiore Medical Center (“Montefiore”), (ii) Dr. Sady Reibero, and (iii) Miguel Aviles, MHS. R. at 516, 559, 1443, 1461. Prior to this treatment, Plaintiff's medical history included bilateral knee osteoarthritis and morbid obesity. R. at 1446.
i. Montefiore Medical Center
In 2012, Ms. Nichol presented at Montefiore and was diagnosed with bilateral Tailor's bunions, bilateral hallux valgus deformities, and right foraminal and far lateral subligamentus disc herniation with an annular tear and a disc bulge. R. at 490, 1443.
In 2014 and 2015, Plaintiff was diagnosed with Tailor's bunion on her right foot and radiculopathy-type pain in her right foot and mononeuritis of the right lower limb. R. at 1448, 1470.
ii. Dr. Sady Reibero
In 2016, Dr. Reibero diagnosed Plaintiff with an additional intervertebral disc displacement in the lumbosacral region. R. at 559. Dr. Reibero also updated Ms. Nichol's medical history to include migraines, anxiety, depression, and back pain resulting from dislocated discs. R. at 1478.
Ms. Nichol received several cortisone injections during her visits to Dr. Reibero throughout 2016 and 2017. R. at 1463, 1465, 1477. On July 24, 2017, Ms. Nichol had a Morton's neuroma resected from her right foot. R. at 1598.
iii. Miguel Aviles, MHS
On October 15, 2016, Ms. Nichol received mental health treatment from therapist Miguel Aviles. R. at 568. She reported symptoms of anxiety and depression and identified her anxiety as a major factor in her inability to focus and concentrate. Id.
Treatment notes indicate that Ms. Nichol appeared guarded and timid, spoke in a low tone of voice, and was confused and forgetful. Id. Continued diagnoses included major depressive affective disorder, recurrent episodes of a moderate degree, and generalized anxiety disorder. Id.
b. Treatment During the Relevant Period
i. 2017
On November 20, 2017, Ms. Nichol presented to Dr. Reibero and reported feeling pain emanating from a lump on the bottom of her foot and numbness in the interdigital space and plantar intermetatarsal space. R. at 516.
ii. 2018
Ms. Nichol spent approximately three months in Jamaica, where she had help taking care of her mother and experienced "practically no pain.” R. at 593. Upon her return to New York, she began to feel body aches and pain in her legs. Id.
On April 17, 2018, Ms. Nichol presented to Dr. Carol McLean Long for an internal medicine consultative examination at the behest of the Social Security Administration (“SSA”). R. at 529. Dr. Long noted that Ms. Nichol was in mild to moderate distress and complained about pain in her thigh, back, and left hip. R. at 531, 533.
Without her cane, Ms. Nichol had a slow, shuffling gait which improved only slightly with the use of a cane. R. at 529. Dr. Long noted that Ms. Nichol's cane appeared to be necessary for balance and ambulation. Id. Her stride increased with the cane, but it was still slow and indicative of a limp on her left side. Id. Ms. Nichol declined to walk on her heels and toes because of pain in her thighs. Id. Of note, Ms. Nichol did not require assistance getting on and off the examination table and could rise from the chair without difficulty. Id.
Musculoskeletal examination results revealed reductions in (1) cervical spine flexion and extension; (2) lumbar spine flexion, rotation, and extension; (3) the range of motion bilaterally; (4) the range of her hips bilaterally; (5) flexion and extension in the knees bilaterally; (6) ankle dorsiflexion and plantar flexion bilaterally; and (7) grip strength and overall strength. R. at 533. In addition, Plaintiff's elbow movement was slow, and her straight leg raise was positive on the left and negative on the right. Id. Furthermore, a neurological examination showed reduced strength in her upper left extremity and lower extremity. Id. Ms. Nichol's movements during the examination were slower on the left than on the right. Id.
Based upon a review of the records and examinations, Dr. Long concluded that Ms. Nichol would have moderate limitations in her ability to squat and walk on heels. Id. In addition, Plaintiff would have mild-to-moderate limitations in: maneuvering her cervical spine; reaching up, out, and backward with her bilateral upper extremities; maneuvering her elbow on the left; grasping and holding on her upper left extremity; flexing and extending her lumbar spine, hips, and knees, but more so on the right than left; performing straight leg raises on the left; and maneuvering her ankles-more so on the left than right. Id.
Moreover, on April 17, 2018, Ms. Nichol presented to Dr. Clementina Porcelli, Ph.D., for a psychiatric clinical examination at the behest of the SSA. R. at 525. Dr. Porcelli documented Ms. Nichol's use of a cane. R. at 526. During the examination, Plaintiff's speech was clear yet monotonous, and her thought process was coherent and goal-oriented, her affect was moderately depressed, and her mood was moderately dysthymic. Id. Ms. Nichol's attention and concentration were mildly impaired due to emotional distress secondary to her depression, resulting in Dr. Porcelli re-orienting her three times. Id. Her recent and remote memories were mildly impaired, and her cognitive functioning was average-to-below-average. R. at 527. Lastly, Dr. Porcelli indicated Ms. Nichol's judgment and insight were fair-to-poor. Id.
Based upon the examination and review of Plaintiff's medical history, Dr. Porcelli concluded that Ms. Nichol could understand, remember, and carry out simple instructions without limitation. Id. However, Dr. Porcelli noted that Ms. Nichol may have moderate limitations with respect to understanding, remembering, applying complex instruction, using reason and judgment to make work-related decisions, interacting in a work setting, sustaining an ordinary routine and regular attendance, sustaining concentration, performing a task at a consistent pace, regulating emotions, controlling behavior, and maintaining well-being. Id. Of note, Dr. Porcelli indicated that Ms. Nichol's prognosis was guarded and recommended a representative payee to manage funds due to mental issues. R. at 528.
On April 23, 2018, State Agency psychiatric consultant Dr. M. D'Ortona assessed Ms. Nichol and concluded that, among other limitations, she is moderately limited in her ability to perform activities within a schedule, maintain attendance, and be punctual within normal tolerances, as well as moderate limitations in her ability to respond appropriately to instructions and criticism from supervisors. R. at 163.
On May 2 and June 8, 2018, Plaintiff reported to Dr. Leonard Vando that she was in severe pain and could not sleep due to the pain. R. at 596, 599.
On May 11, 2018, State Agency Dr. R. Uppal, DO, opined that Ms. Nichol could perform light work, such as standing and/or walking up to six hours in an eight-hour day, sitting for six hours in an eight-hour day, lifting and carrying 20 pounds occasionally and 10 pounds frequently, and occasionally performing postural maneuvers, except crawling. R. at 160. Dr. Uppal did not note the use of a cane. Id.
During her October 1 and November 12 visits to Montefiore in 2018, Ms. Nichol ambulated with a cane (at baseline), and the range of motion in her hip was limited due to pain. R. at 832, 878. On November 19, 2018, she complained of bilateral pain with exceptional pain in the ball area of her right foot. R. at 615. Montefiore staff assessed Plaintiff with right foot pain; Morton's neuroma on her right foot; and metatarsalgia on her right foot. R. at 616.
iii. 2019
On May 9, 2019, Plaintiff asked Dr. Vando about the CDPAP program, but he advised her that she could not “work under her current mental and physical condition.” R. at 2173.
During a May 14, 2019, visit to Montefiore, Plaintiff reported aggravating factors such as sitting, standing, and/or walking over 15 to 30 minutes, and lifting/carrying over five pounds. R. at 1233. Ms. Nichol also reported that she was independent in completing daily living activities but required occasional assistance dressing. Id. The examination showed increased lumbar lordosis, increased thoracic kyphosis, and left out-toeing. Id.
In addition, palpation was positive for paraspinal Thrombotic Thrombocytopenic Pupura to the left portion of the lower spine, superior gluteals, piriformis, and greater trochanter, as well as ecchymosis in the left lateral knee and lateral lower leg. Id. Ms. Nichol noted pain in the lumbar spine on flexion, extension, lateral flexion, and lumbar rotation. Id. Plaintiff was able to alternate between sitting and standing without the use of upper extremity support. Id. She was unable to balance on her left foot and lasted 11 seconds balancing on her right foot. Id. Lastly, without a cane, Ms. Nichol had a reciprocal gait pattern, but her cadence and bilateral stride length decreased. Id.
On September 11, 2019, Dr. Vando observed Ms. Nichol and concluded that she appeared depressed as she spoke in a low tone and admitted to experiencing panic attacks the past two days. R. at 1651. Ms. Nichol also reported that she was very forgetful and agreed to undergo a mini-mental status examination. Id. She scored 20 out of 30, indicating the presence of cognitive impairment. Id. Dr. Vando's review of her symptoms displayed stressed speech, depressed mood, labile affect, and poor short- and long-term memory. Id.
iv. 2020
In 2020, Dr. Vando's treatment notes vacillate from indications of normal mental examinations, R. at 1652-1654, to depressive and anxious behavior, R. at 1660-1662, 1665. On June 16, 2020, Ms. Nichol indicated to Dr. Vando that she has “bad days and good days.” R. at 1667.
On December 23, 2020, Dr. Vando provided a Medical Assessment of Ability to Do Work Related Activities report, opining that Plaintiff had a “poor” ability to deal with work stresses, maintain attention and concentration, demonstrate reliability, and interact with coworkers, supervisors, and the general public. R. at 2097. Dr. Vando supported his conclusion with the fact that, since 2014, Ms. Nichol has “a mood disorder (depression) which is recurrent/moderate. [Plaintiff] also has an anxiety [disorder]. Both of these disorders impact her ability to perform.” R. at 2097, 2098.
D. The Hearing
On June 23, 2021, Plaintiff appeared and testified before ALJ Sanzi. R. at 124.
i. Plaintiff's Testimony
Plaintiff began by testifying about her biographical details. At the time of the hearing, Ms. Nichol was 50 years old. R. at 127. Ms. Nichol went to school in Jamaica and did not complete her degree, but she received a CNA certificate in 2011. R. at 134. Ms. Nichol reported that she worked about 7 hours per week at $19.00 per hour taking care of her mother as part of the CDPAP program. R. at 135.
Plaintiff testified that the “job” did not require lifting. Id. Plaintiff testified that she suffered from a “bad back, bad [right] knee, [and] depression,” and her right foot affected her ability to work. R. at 137-138. According to Plaintiff's testimony, her bad back predates her arrival in the United States, and her CNA work exacerbated the issue, leading to an emergency room visit. R. at 139. Plaintiff testified that her bad back first affected her ability to work in 2012 and that she stopped working around that time at her doctor's direction. R. at 137.
Plaintiff indicated that foot problems began affecting her work around 2013, R. at 141. Plaintiff testified that she underwent foot surgery to remove a bunion on her right foot. R. at 140. After the surgery, a bump appeared, and Ms. Nichol underwent another surgery to remove the nerve from where the bump was located. Id. At this point, Plaintiff was still in pain, and the doctor completed another MRI, which indicated that she had a pinched nerve. Id. Although she eventually returned to work, Plaintiff stopped working again after a specialist completed an MRI of her lumbar spine and instructed her to stop working. R. at 139, 490.
Depression, panic attacks, and anxiety started affecting Plaintiff's ability to work in 2012. R. at 140. She testified that her mental health affected her ability to travel by public transportation. Id.
Finally, Ms. Nichol testified that she uses a cane every day to walk and stand, and she cannot walk or stand without it. R. at 142, 144.
ii. VE Testimony
As a preliminary matter, the VE classified Ms. Nichol's past relevant work as a companion and home health aide. R. at 144. The ALJ, however, made a finding on the record that the companion job was not past relevant work. Id.
ALJ Sanzi then asked the VE what type of work a person like Ms. Nichol could perform; assuming the person would have the same age, education, and work experience as Ms. Nichol, could perform light work, and could only stand or walk for four hours in an eight-hour day. R. at 145. The ALJ clarified that the work would have to be in a low-stress job that was limited to simple routine tasks and required only occasional decision-making and occasional changes in the work setting. Id. In addition, the hypothetical person would not be able to perform production rate or pace work and could only have occasional interactions with the public. Id.
The VE identified the jobs of electronic worker, laundry folder, and shipping and receiving weigher. R. at 146.
Next, the ALJ posed a second hypothetical question: “[A]ssuming all of the limitations contained in the first hypothetical, with the additional limitation that such a person would be limited to jobs that employees can perform while using a handheld assistive device, required only for uneven terrain or prolonged ambulation.” Id. The VE said the same three would still be available. R. at 147.
On cross-examination, Plaintiff's counsel asked whether the jobs the VE identified could be performed if the hypothetical person also required the handheld assistive device for standing. Id. The VE said such a limitation would preclude all employment. Id.
d. The ALJ's Decision
ALJ Thomas Sanzi issued his decision on December 27, 2018. R. at 38-54. At step two, the ALJ found that Ms. Nichol's degenerative disc disease, right foot Morton's neuroma, status post bunionectomy, status post left knee arthroscopy, headaches, obesity, anxiety, and depression were severe. R. at 13.
At step three, however, the ALJ found that Ms. Nichol's impairments, individually and in combination, did not meet or equal the criteria of an impairment as listed in Appendix 1 of Subpart P of Part 404, 20 C.F.R. R at 13-15. At step four, ALJ Sanzi found that Ms. Nichol was unable to perform her previous type of work as a home health aide. R. at 22.
Lastly, at step five, despite Ms. Nichol's impairment, the ALJ found that she retained the RFC to perform light work, as defined in 20 C.F.R. § 416.967(b), with the following restrictions:
1) Standing and walking for a total of no more than four hours in an eight-hour day;
2) Use of a handheld assistive device for prolonged ambulation or uneven terrain;
3) Simple and routine tasks;
4) Low stress work, defined as having only occasional decision-making required and only occasional changes in the work setting;
5) No production rate or pace work such as assembly line work, but allowing for goal-oriented work that can be checked at the end of the work period; and
6) No more than occasional interaction with the public.R. at 15.
a. The ALJ's Mental RFC Finding
With respect to Ms. Nichol's mental functioning, the ALJ evaluated the treatment notes and testimony of Dr. Vando, Miguel Aviles, MHS, Dr. Porcelli, and Dr. D'Ortona. R. at 16, 20-21. The ALJ concluded that Ms. Nichol's claims of disabling symptoms and limitations were inconsistent with the record because the record exhibited well-managed symptoms with psychiatric medication and treatment, repeated findings on intact thought processes, cognition, and memory, and the ability to perform household tasks, travel to and from Jamaica, and study for the U.S. citizenship exam. Id.
To arrive at his conclusion, ALJ Sanzi noted that Ms. Nichol had a long history of anxiety and depression but no suicidal ideation or psychiatric hospitalizations. R. at 16. In addition, Ms. Nichol received regular psychotherapy and psychiatric treatment throughout the relevant period. R. at 20. The ALJ reviewed Dr. Vando's treatment notes and concluded that Ms. Nichol was sometimes depressed and anxious, R. at 1651, 1660-2, 1665, 1668, 1670-3, 2204-8, but more often than not, she exhibited a fair, calm, normal, or euthymic mood, R. at 593, 599, 602, 606, 609-10, 612, 615-6, 618-9, 1650, 1652-8, 1663-7.
In addition, the ALJ acknowledged a single instance in September 2020 in which Dr. Vando observed poor memory in a session at which Plaintiff appeared stressed. However, ALJ Sanzi also recognized that Dr. Vando did not observe any deficiencies in Ms. Nichol's memory thereafter and generally described her as stable, doing well, and cognitively intact. R. at 13-15, 20.
In Plaintiff's concurrent visits to Dr. Porcelli, she complained of dysphoric mood, loss of interest, low energy, concentration problems, memory issues, and social withdrawal. R. at 20 referring to R. at 526. Ms. Nichol also exhibited fair-to-poor social skills, slow motor behavior, moderately depressed mood and affect, mildly impaired attention and concentration, mildly impaired memory, average-to-below-average cognitive functioning, and fair-to-poor insight and judgment. R. at 20 referring to R. at 527. Notwithstanding these findings, Dr. Porcelli also reported that Ms. Nichol exhibited cooperative behavior and intact thought processes. Id.
The ALJ contrasted Dr. Porcelli's findings with Dr. Vando's concurrent findings of fair grooming, fair ability to relate, normal speech, logical thought processes, fair insight, fair judgment, normal cognition, and normal memory. R. at 20; see R. at 596-7.
The ALJ then evaluated the persuasiveness of each doctor's medical opinion. R. at 22. First, ALJ Sanzi addressed Dr. Porcelli's opinion that Ms. Nichol had no limitations in understanding, remembering, or applying simple directions, but might have moderate limitations in making work-related decisions, interacting with others, working at a consistent pace, and sustaining an ordinary routine. R. at 22 referring to R. at 527. The ALJ found Dr. Porcelli's opinion persuasive because it was consistent with Ms. Nichol's medical history and subjective complaints and supported by his clinical examination findings. R. at 22 referring to R. at 526-7.
Similarly, the ALJ concluded that Dr. D'Ortona's finding that Plaintiff had the ability to perform the demands of unskilled work was generally persuasive because Dr. D'Ortona reviewed the available evidence and based her opinion on her review of the record and her knowledge of the disability program and its requirements. R. at 21 referring to R. at 164. In addition, ALJ Sanzi noted that prior administrative medical findings were consistent with Ms. Nichol's longitudinal treatment history and Dr. Porcelli's findings. R. at 21 referring to R. at 526-7.
However, regarding Dr. Vando's opinion that Ms. Nichol exhibited poor functioning, the ALJ opined that Dr. Vando's opinion was not persuasive. R. at 22 referring to R. at 2097. The ALJ reasoned that Dr. Vando's own treatment notes showed largely normal mental status examinations and reports of Plaintiff doing well on medication and performing household chores and home health care for her mother one day per week. R. at 22 referring to R. at 134-5, 527, 592-620, 1649-73, 1751, 22049.
b. The ALJ's Physical RFC Finding
The ALJ considered Ms. Nichol's history of treatment, surgery, and new diagnoses regarding pain, sensation, and mobility in her lower back and feet. R. at 17. The ALJ concluded Ms. Nichol's medical history, ranging from 2014 to 2020, displayed a circular pattern of temporary foot and back pain relief resulting from increased medication dosages and peripheral nerve block injections, often followed by physical setbacks, such as disc space narrowing in her back. R. at 17-8 referring to R. at 533, 535.
ALJ Sanzi considered Dr. Long's and Plaintiff's physical therapist's reports of Ms. Nichol ambulating with a cane, but also independently changing for the examination, rising from chairs, and getting on or off the examination table. R. at 18 referring to R. at 531, 1233. In addition, the ALJ considered the Plaintiff's physiatrist's December 2018 and March 2019 reports that Ms. Nichol exhibited difficulty with the straight leg raising test and reduced strength in her lower extremities, particularly her left lower extremity. R. at 18 referring to R. at 959, 998.
Next, the ALJ addressed Plaintiff's history of physical therapy beginning in May 2019. R. at 18 referring to R. at 1231. ALJ Sanzi specifically noted that Ms. Nichol reported that her back pain was not exacerbated with activity and that she was independent in all daily living activities, except for occasional assistance with dressing. R. at 18 referring to R. at 1233, 1678. The physical therapist found tenderness to palpation of her spine, reduced range of motion of her lumbar spine and left knee, reduced strength in the lower extremities, and decreased sensation in the left leg. R. at 18 referring to R. at 1233-4.
After consistent physical therapy coupled with facet joint and medial branch block injections, Plaintiff demonstrated a normal gait and reported significant pain relief, increased strength, and normal sensation. R. at 18-9. Despite her physical improvements, Plaintiff continued to walk with a cane and work as a home health aide one day per week. R. at 18 referring to R. at 1754.
Lastly, the ALJ considered Ms. Nichol's history of migraine headaches. While Plaintiff initially reported four-to-five headaches per month that lasted for two days each, by June 2018, Plaintiff's migraine headaches were less frequent and better well-controlled. R. at 19 referring to R. at 692, 1750. After November 2019, there is no record of Ms. Nichol complaining about migraine headaches. R. at 19.
The ALJ then evaluated the persuasiveness of each doctor's medical opinion. Of note, the ALJ found that the opinion of Dr. Long was only “partially persuasive” because Dr. Long's opinion that Ms. Nichol was limited in reaching or postural activities was unsupported. R. at 22 referring to R. at 533-4. ALJ Sanzi did not address the need for a cane when assigning weight to Dr. Long's opinion. R. at 22. While the ALJ did acknowledge that Dr. Long held this opinion prior to assigning a weight of persuasiveness to Dr. Long's opinion, the ALJ rejected Dr. Long's assessment because “the claimant did not need help changing for examination, rising from a chair, or getting on or off the examining table.” R. at 18.
ALJ Sanzi acknowledged other Doctors' records indicating that Ms. Nichol's had a “very limited” range of motion with a decreased range of motion of her hips, decreased strength of her left leg, and positive straight-leg raising. Id. Nevertheless, the ALJ concluded that the references to instances where Ms. Nichol displayed intact strength and reflexes and the ability to ambulate independently were indicative of Ms. Nichol's RFC to perform light work that, among other accommodations, allows for the use of a cane for prolonged ambulation or uneven terrain. Id. Thus, ALJ Sanzi found that Ms. Nichol was not disabled. R. at 24.
LEGAL STANDARD
A. Scope of Judicial Review under 42 U.S.C. § 405(g)
“After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
“In reviewing a final decision of the SSA, this Court 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) (per curiam) (citation and internal quotations omitted). “Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam) (citation and internal quotations omitted). Substantial evidence is “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citations omitted). “Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.” Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (internal citations omitted).
B. Standard Governing Evaluation of Disability Claims by the SSA
To qualify for disability benefits, an individual must be unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The SSA's regulations establish a five-step process for determining a disability claim. See 20 C.F.R. § 416.920(a)(4).
“If at any step a finding of disability or nondisability can be made, the SSA will not review the claim further. At the first step, the agency will find nondisability unless the claimant shows that he is not working at a “substantial gainful activity.” §§ 404.1520(b), 416.920(b). At step two, the [SSA] will find nondisability unless the claimant shows that he has a “severe impairment.” Defined as “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” §§ 404.1520(c), 416.920(c). At
step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. §§ 404.1520(d), 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the [SSA] assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the [SSA] to consider so-called “vocational factors” (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy.”Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003).
“The applicant bears the burden of proof in the first four steps of the sequential inquiry; the Commissioner bears the burden in the last.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). “Because a hearing on disability benefits is a nonadversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.” Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999).
In addition to the five-step analysis outlined in 20 C.F.R. § 404.1520, the Commissioner has promulgated regulations governing evaluations of the severity of mental impairments. 20 C.F.R. § 404.1520a. These regulations require application of a “special technique” at the second and third steps of the five-step framework, and at each level of administrative review. Kohler, 546 F.3d at 265. This technique requires the reviewing authority to determine first whether the claimant has a “medically determinable mental impairment.” § 404.1520a(b)(1). If the claimant is found to have such an impairment, the reviewing authority must “rate the degree of functional limitation resulting from the impairment(s) in accordance with paragraph (c),” § 404.1520a(b)(2), which specifies four broad functional areas: (1) understand, remember, or apply information; (2) interact with errors; (3) concentration, persistence, or maintaining pace; and (4) adapting or managing oneself. § 404.1520a(c)(3). If the degree of limitation is rated as “none” or “mild,” then the reviewing authority will generally conclude that the claimant's mental impairment is not “severe” and will deny benefits. § 404.1520a(d)(1). If the claimant's mental impairment is severe, the reviewing authority will first compare the relevant medical findings and the functional limitation ratings to the criteria of listed mental disorders in order to determine whether the impairment meets or is equivalent in severity to any listed mental disorder. § 404.1520a(d)(2). If so, the claimant will be found to be disabled. If not, the reviewing authority will then assess the claimant's RFC. § 404.1520a(d)(3).
DISCUSSION
Plaintiff explicitly states two grounds for reversing the ALJ's decision: (i) the ALJ failed to properly evaluate the limiting effects of a medically necessary cane in the residual functional capacity (“RFC”) assessment, and (ii) the ALJ's RFC determination is unsupported by substantial evidence because he failed to properly evaluate the opinion evidence of record per the prevailing rules and regulations.
The first argument centers around the ALJ's alleged failure to properly evaluate the evidence provided by Dr. Long pursuant to the regulations, thereby causing his determination to lack substantial evidence. Pl. Memo at 16. Plaintiff argues that the ALJ failed to mention Dr. Long's opinion that Plaintiff's use of a cane is medically necessary for balance and ambulation, thereby failing to adequately address two out of the five agency-required factors for evaluating opinion evidence: supportability and consistency. Pl. Memo at 16-18.
The second argument concerns the ALJ's failure to include the assessed limitations reported by Dr. D'Ortona, Dr. Porcelli, and Dr. Vando. Plaintiff argues that all three mental health experts agreed that Ms. Nichol would have a moderate to poor ability to interact with supervisors and maintain a schedule. Pl. Memo at 20, 21. While the ALJ found that two of the opinions were “persuasive,” Plaintiff alleges the ALJ failed to (1) include any limitations in the RFC relating to these limitations and (2) explain how, out of three “nearly identical” opinions, only two were supported by the administrative record. Pl. Memo at 18.
A. Whether the ALJ's Determination Lacked Substantial Evidence
Pursuant to Social Security Ruling (“SSR”) 96-6p, “[t]o find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed.” See SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996). Accordingly, whether the ALJ's determination lacked substantial evidence centers around the existence of persuasive medical documentation establishing that Ms. Nichol requires a cane for all ambulation or standing as opposed to solely for prolonged ambulation and navigating uneven terrain.
Plaintiff argues that Dr. Long's 2018 opinion that Ms. Nichol required a cane for ambulation and balance should have been addressed when assigning weight to Dr. Long's opinion. Pl. Memo at 17. Further, Plaintiff asserts that the error was not harmless because the VE testified that if a person needed a cane for standing, they would not be employable under the hypothetical. Pl. Memo at 19.
In response, Defendant asserts that the ALJ's finding that Plaintiff needed a cane only for “prolonged ambulation or uneven terrain” was proper because (i) the ALJ correctly considered Dr. Long's opinion and concluded it was not supported by the evidence, and (ii) no treating source supports Plaintiff's argument that she requires a cane for standing. Memo of Law in Support of Comm'r's Cross-Mot. for Judgment on the Pleadings and in Opp. of Pl's. Mot. for Judgment on the Pleadings (Dkt. No. 19) (“Opp.”) at 19-21.
This Court notes the ALJ did acknowledge Dr. Long's opinion in his decision, but the ALJ did not find it persuasive in part because it contradicts Dr. Long's own observation. R. at 18. In the same visit where Dr. Long mentioned the cane was necessary for ambulation and balance, Dr. Long recorded that Ms. Nichol “did not need help changing for examination, rising from a chair, or getting on or off the examining table.” Id. While Plaintiff alleges that the ALJ failed to address supportability and consistency, the ALJ clearly stated that Dr. Long's opinion was only “partially persuasive” in light of “normal examinations elsewhere in the file.” R. at 22. It is clear from the ALJ's ruling that he balanced the supportability and consistency of Dr. Long's opinion against the rest of the record. Dr. Long's opinion that Plaintiff needed a cane for ambulation and balance is arguably in conflict with Dr. Long's other findings and other examinations in the record. It is within the discretion of the ALJ to weigh evidence and resolve conflicts. 20 C.F.R. § 404.1546(c); See also Richardson v. Perales, 402 U.S. 389, 399 (1971). Therefore, because the ALJ did evaluate Dr. Long's opinion and subsequently reject it based on substantial evidence, his finding was proper.
Additionally, while Plaintiff argues that the ALJ may not “cherry-pick” parts of the record, Pl. Memo at 19, the Defendant points to other parts of the record indicating that Plaintiff did not need a cane for all ambulation. Opp. at 19-20. Of note, several medical records following Dr. Long's 2018 opinion indicate that Ms. Nichol did not require a cane for all ambulation and balance. For example, on May 11, 2018, Plaintiff presented to Dr. Uppal without documented use of a cane. R. at 160. A year later, Montefiore treatment notes specify that Ms. Nichol could alternate between sitting and standing without the use of upper extremity support. R. at 1233. Case law is clear that “[a]n ALJ need not accept a treating source opinion that “conflicts with other substantial evidence in the record.” Colbert v. Comm'r of Soc. Sec., 313 F.Supp.3d 562, 573 (S.D.N.Y. 2018) (internal quotation marks and citation omitted). Accordingly, the ALJ relied on other evidence in the record to reach the conclusion that Plaintiff needed a cane for prolonged ambulation and navigating uneven terrain rather than ambulation and balance as suggested by Dr. Long. Thus, it cannot be said that the ALJ's finding lacked substantial evidence.
Finally, even if the ALJ had accepted Dr. Long's opinion that Ms. Nichol's cane was necessary for balance and ambulation, the VE testimony concluded that if a hypothetical person required a cane for ambulation the same jobs would be available. R. at 148. The VE only found that the jobs would be unavailable if the hypothetical person needed a cane for standing. Id. Defendant argues, there is no treating source that indicated that Plaintiff required a cane for standing, Opp. at 21, and Defendant points to the Montefiore treatment notes that Ms. Nichol could sit and stand without support. R. at 1233. Even if Plaintiff required a cane for ambulation and balance as Dr. Long opined, the VE's testimony that other jobs would be available would still apply. See Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (declining remand where “application of the correct legal principles to the record could lead [only to the same] conclusion”).
Therefore, this Court is satisfied that the ALJ properly evaluated Dr. Long's opinion and remand is not warranted on the issue of Plaintiff's cane.
B. Whether the ALJ Failed to Include Limitations in the RFC
Plaintiff argues that the ALJ erred in failing to explain why he did not include limitations espoused by Dr. D'Ortona, Dr. Porcelli, and Dr. Vando in the RCF relating to Plaintiff's ability to maintain a schedule, regularly attend work, and interact with supervisors. Pl. Memo at 20. Plaintiff further alleges that the ALJ did not explain his finding only two out of three doctors' opinions persuasive, despite the opinions being “nearly identical.” Pl. Memo at 20-21.
Defendant counters that the ALJ's decision shows he considered all three opinions and made determinations about their persuasiveness based on the record. Opp. at 21-28. Further, Defendant argues that Plaintiff fails to show evidence that no reasonable factfinder could have reached the ALJ's conclusion based on the record. Opp. at 23 (citing Brault v. Soc. Sec. Admin., Com'r, 683 F.3d 443, 448 (2d Cir. 2012)).
Upon review, the three opinions are distinct in terms of degree and certainty. First, Dr. Porcelli's opinion was that Plaintiff might have moderate limitations in making work-related decisions, interacting with others, working at a consistent pace, and sustaining an ordinary routine. R. at 22 referring to R. at 527. Defendant provides case law to support that because the opinion used equivocal terms, it was not conclusive. Opp. at 24 (citing Sanchez v. Colvin, No. 13 CIV. 6303 PAE, 2015 WL 736102, at *6 (S.D.N.Y. Feb. 20, 2015)). Similarly, while Dr. D'Ortona found that Plaintiff was moderately limited in her ability to interact with supervisors, Dr. D'Ortona ultimately concluded that Plaintiff retained the ability to “perform the basic demands of unskilled work.” R. at 163-164.
In contrast, Dr. Vando opined that Ms. Nichol's functioning was poor or could not be determined in all areas. R. at 22 referring to R. at 2097. The ALJ did not find Dr. Vando's opinion persuasive because it was not consistent with Dr. Vando's own treatment notes and Plaintiff's reports of doing well on medication, performing household chores, studying for her citizenship exam, and providing home health care for her mother one day per week. R. at 22 referring to R. at 134-34, 527, 592-620, 1649-73, 1751, 2204-09.
While Ms. Nichol had experienced episodes of slow speech and processing in the past, after September 2020, Dr. Vando did not observe any deficiencies in Ms. Nichol's memory, and classified her as stable, doing well, consistently medicated without side effects, and cognitively intact. R. at 13-15, 20. Yet, on December 23, 2020, Dr. Vando opined that Ms. Nichol demonstrated a “poor” ability to deal with work stresses, maintain attention and concentration, demonstrate reliability, and interact with coworkers, supervisors, and the general public. R. at 2097. Thus, the ALJ relied on other evidence to conclude that Dr. Vando's opinion was not persuasive when contextualized as the successor of months of stability and consistent mental health improvement.
Additionally, the ALJ considered the psychological consultative examination findings, and her episodes of slow speech and processing, in assessing Ms. Nichol's RFC for work involving simple, routine tasks in a low-stress, non-production-rate job, with only occasional interaction with the public. R. at 21. The ALJ qualified this consideration, reasoning that “the largely normal findings on mental status examination, together with the claimant's conservative treatment, do not support the additional limitations the claimant alleged.” Id.
Therefore, the ALJ did not err in omitting additional RFC limitations or rejecting Dr. Vando's opinion because his reasoning was supported by substantial evidence and a reasonable factfinder could have concluded the same. Accordingly, ALJ Sanzi's factual findings must be given conclusive effect.
CONCLUSION
For the foregoing reasons, this Court recommends that Plaintiff's motion (Dkt. No. 16) be DENIED , and the Commissioner's motion (Dkt. No. 18) be GRANTED .
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections shall be filed with the Clerk of Court and on ECF. Any requests for an extension of time for filing objections must be directed to Judge Koeltl. Failure to file objections within fourteen days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).
SO ORDERED.