Opinion
20 Civ. 5141 (KMK) (AEK)
02-28-2022
KELSEY PEARL NICOLETTI, Plaintiff, v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
TO: THE HONORABLE KENNETH M. KARAS, U.S.D.J.
This case was referred to the undersigned on October 29, 2020. ECF No. 14.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE, United States Magistrate Judge.
Plaintiff Kelsey Pearl Nicoletti brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security (the “Commissioner”), which denied her application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under the Social Security Act (the “Act”). ECF Nos. 1, 10. Currently pending before the Court are Plaintiff's motion, and the Commissioner's crossmotion, for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ECF Nos. 19, 25. For the reasons that follow, I respectfully recommend that Plaintiff's motion (ECF No. 19) be DENIED, the Commissioner's motion (ECF No. 25) be GRANTED, and that judgment be entered in favor of the Commissioner.
BACKGROUND
I. Procedural Background
On August 7, 2017, Plaintiff filed for DIB and SSI, alleging May 4, 2017, as the onset date of her disability; she subsequently amended the alleged onset date to February 11, 2016. Administrative Record (“AR”) 59-60, 113, 128, 143-45. In her initial filing, Plaintiff claimed she was disabled due to postural orthostatic tachycardia syndrome (“POTS”), post-traumatic stress disorder (“PTSD”), anxiety, depression, irritable bowel syndrome (“IBS”), scoliosis, and frequent urinary tract infections (“UTIs”). AR 113-14, 128-29. After the Social Security Administration (the “SSA”) denied her claim, AR 185-88, 194-201 (denial on reconsideration), Plaintiff requested a hearing before an administrative law judge (“ALJ”), AR 204. An administrative hearing was held on January 9, 2019, and Plaintiff appeared in person and testified. AR 56-96.
Citations to “AR” refer to the certified copy of the administrative record filed by the Commissioner. ECF No. 16.
ALJ Tracy LaChance issued a decision on March 7, 2019, finding that Plaintiff was not disabled within the meaning of the Act from the alleged onset date, February 11, 2016, through the date of the decision, March 7, 2019. AR 11-34. Plaintiff subsequently filed a request for review of the ALJ's decision with the SSA's Appeals Council, which was denied on May 7, 2020. AR 1-4. That made the ALJ's March 7, 2019, decision the final decision of the Commissioner. The instant lawsuit, seeking judicial review of the ALJ's decision, followed. ECF No. 1.
II. Testimonial, Medical, and Vocational Evidence
Both parties have provided summaries of the testimonial, medical, and vocational evidence contained in the administrative record. See ECF No. 20 (“Pl.'s Mem. of Law”) at 2-15; ECF No. 26 (“Def.'s Mem. of Law”) at 1-12. Based on an independent and thorough examination of the record, the Court finds that the parties' summaries of the evidence are largely comprehensive and accurate. Accordingly, the Court adopts these summaries and discusses the evidence in the record in more detail to the extent necessary to a determination of the issues raised in this case. See, e.g., Banks v. Comm'r of Soc. Sec., No. 19-cv-929 (AJN) (SDA), 2020 WL 2768800, at *2 (S.D.N.Y. Jan. 16, 2020), adopted by 2020 WL 2765686 (S.D.N.Y. May 27, 2020).
APPLICABLE LEGAL PRINCIPLES
I. Standard of Review
The scope of review in an appeal from a Social Security disability determination involves two levels of inquiry. First, the court must review the Commissioner's decision to assess whether the Commissioner applied the correct legal standards when determining that the plaintiff was not disabled. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). “‘Failure to apply the correct legal standards is grounds for reversal.'” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
Second, the court must evaluate whether the Commissioner's decision was supported by substantial evidence. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 106 (quotation marks omitted). When determining whether substantial evidence supports the Commissioner's decision, it is important that the court “carefully consider[] the whole record, examining evidence from both sides.” Tejada, 167 F.3d at 774. “It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). If the “decision rests on adequate findings supported by evidence having rational probative force, [the court] will not substitute [its own] judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
II. Determining Disability
The Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual is disabled under the Act if he or she suffers from an impairment which is “of such severity that he [or she] is not only unable to do his [or her] previous work but cannot . . . engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). “‘[W]ork which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” Id.
Regulations issued pursuant to the Act set forth a five-step process that the Commissioner must follow in determining whether a particular claimant is disabled. See 20 C.F.R. § 404.1520(a)(4). The Commissioner first considers whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i),(b), 416.920(a)(4)(i),(b). If the claimant is engaged in substantial gainful activity, then the Commissioner will find that the claimant is not disabled; if the claimant is not engaged in substantial gainful activity, the Commissioner proceeds to the second step, at which the Commissioner considers the medical severity of the claimant's impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A severe impairment is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant suffers from any severe impairment, the Commissioner at step three must decide if the impairment meets or equals a listed impairment; listed impairments are presumed severe enough to render an individual disabled, and the criteria for each listing are found in Appendix 1 to Part 404, Subpart P of the SSA regulations. 20 C.F.R §§ 404.1520(a)(4)(iii),(d), 416.920(a)(4)(iii),(d).
If the claimant's impairments do not satisfy the criteria of a listed impairment at step three, the Commissioner must then determine the claimant's residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). A claimant's RFC represents “the most [he or she] can still do despite [his or her] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). After determining the claimant's RFC, the Commissioner proceeds to the fourth step to determine whether the claimant can perform his or her past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv),(e)-(f), 416.920(a)(4)(iv),(e)-(f). If it is found that the claimant cannot perform his or her past relevant work, the Commissioner proceeds to step five to consider the claimant's RFC, age, education, and work experience to determine whether he or she can adjust to other work. 20 C.F.R. §§ 404.1520(a)(4)(v),(g), 416.920(a)(4)(v),(g). To support a finding that the claimant is disabled, there must be no other work existing in significant numbers in the national economy that the claimant, in light of his or her RFC and vocational factors, is capable of performing. 20 C.F.R. § 404.1560(c).
The claimant bears the burden of proof on the first four steps of this analysis. DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998). If the ALJ concludes at an early step that the claimant is not disabled, he or she need not proceed with the remaining steps. Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000). If the fifth step is necessary, the burden shifts to the Commissioner to show that the claimant is capable of performing other work. DeChirico, 134 F.3d at 1180.
DISCUSSION
Plaintiff seeks to reverse the Commissioner's decision, or, in the alternative, to have the matter remanded to the SSA for further administrative proceedings. She contends that the ALJ erred in (i) evaluating Plaintiff's credibility, (ii) evaluating the medical evidence and other evidence in the record, and (iii) making her step five determination. See Pl.'s Mem. of Law at 17-25; ECF No. 27 (“Reply Mem.”) at 2-8. The Commissioner seeks to have her final decision affirmed; she maintains that the ALJ's decision is based upon the application of correct legal standards and is supported by substantial evidence. Def.'s Mem. of Law at 14-25.
As discussed below, the Court finds that the Commissioner applied the correct legal standards and that her decision was supported by substantial evidence, and therefore respectfully recommends that Plaintiff's motion be denied, the Commissioner's motion be granted, and that judgment be entered in favor of the Commissioner.
I. The ALJ's Decision
ALJ LaChance employed the five-step analysis described above and issued a decision finding that Plaintiff was not disabled from the alleged onset date of February 11, 2016, through the date of the decision, March 7, 2019. AR 14-25. First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 11, 2016. AR 17. Second, the ALJ determined that Plaintiff had the severe impairments of POTS, migraine headache disorder, depression, and anxiety. AR 17. Third, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 20-21.
The ALJ accepted the amended alleged onset date requested by Plaintiff. See AR 14, 59.
The ALJ noted that based on the evidence in the record, Plaintiff's claimed impairments of hypermobility of the joints and vision limitations were both not severe. AR 19-20. These two impairments are not listed in any application for either DIB or SSI in the record. Nonetheless, during the hearing, Plaintiff's attorney questioned her regarding problems with her vision, and she testified to having cataracts. AR 75; see also AR 412 (in a Function Report filled out by Plaintiff on November 6, 2018, Plaintiff noted, “I also have cateracts [sic] now, which make driving at night difficult.”). Beyond that, there are medical records for ophthalmology and optometry appointments which note that Plaintiff was diagnosed with a benign condition known as pseudopapilledema, “an optic nerve appearance that mimics, but is not, swelling in the optic disc.” See AR 869-80, 1012-19, 1022-26; see also AR 353, 355-56 (Disability Report - Appeal from December 2017 notes treatment/evaluation related to an elevated optic nerve). There is also a treatment note for an appointment that Plaintiff had with her primary care physician on August 3, 2018 at which Plaintiff complained about hypermobility of her joints, see AR 1039-40, but Plaintiff's doctor assessed Plaintiff with benign hypermobility syndrome and noted that she did “not see any contraindication to an aerobic exercise program ....” AR 1040. In any event, Plaintiff has not contested the ALJ's findings with respect to these possible impairments as part of her submissions in this matter.
According to the ALJ, Plaintiff retained the RFC to perform sedentary work, as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), with the exceptions that
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a).
she cannot climb ladders/ropes/scaffolds and she can only occasionally climb ramps/stairs. She can occasionally balance, stoop, kneel, crouch, and crawl. She needs to avoid work around hazards such as unprotected heights and dangerous machinery. She cannot drive for work. She needs to avoid exposure to extreme heat and more than moderate noise. She can maintain concentration/persistence/pace on simple tasks in 2-hour blocks over a typical workday and workweek. She is able to adapt to occasional changes. She can tolerate brief, routine interaction with the public and with co-workers on an occasional basis.AR 21.
ALJ LaChance determined Plaintiff's RFC by applying the two-step framework described in 20 C.F.R. §§ 404.1529 and 416.929 and SSR 16-3p. AR 21-22. She concluded that although Plaintiff's medically determinable impairments “could reasonably be expected to cause the alleged symptoms,” her “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 ....” AR 22. In particular, the ALJ found that “the record contains from April 2014 to August 2016, “greeting the public as a front desk clerk for a hotel,” and that her employer reported that Plaintiff “did this work without any difficulties.” Id.
The ALJ specified that the first step in this process is to determine “whether there is an underlying medically determinable physical or mental impairment(s)i.e., an impairment(s) that multiple and significant contradictions between the claimant's testimony about her work and her reports to various treatment providers,” and that “despite the claimant's report of an inability to stand or walk for more than short periods, this has never been observed by her treating sources.” AR 22-23. The ALJ also noted that there was no evidence in the record of cataracts or impaired vision, and that in terms of Plaintiff's alleged hip and back pain, “the medical record shows only brief treatment for right trochanteric bursitis,” and Plaintiff had “repeatedly been observed to exhibit normal gait.” AR 23. According to ALJ LaChance, Plaintiff's testimony regarding migraines was contradicted by her report to her doctor in December 2018 that she experienced a migraine every two weeks. Id. The ALJ considered statements submitted by Plaintiff's mother and sister, but found that they dealt with Plaintiff's “personal history and/or behaviors during adolescence,” and thus, they “offer[ed] little to explain the claimant's recent or current functioning.” Id. Finally, the ALJ pointed out that Plaintiff worked for more than two years, can be shown by medically acceptable clinical or laboratory diagnostic techniques-that could reasonably be expected to produce the claimant's pain or other symptoms.” AR 22. The second step in the process, “once an underlying physical or mental impairment(s) that could reasonably be expected to produce the claimant's pain or other symptoms has been shown,” is for the ALJ to “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functional limitations.” Id. “[W]henever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the [ALJ] must consider other evidence in the record to determine if the claimant's symptoms limit the ability to do work-related activities.” Id.
ALJ LaChance also considered the medical opinion evidence in the record. First, the ALJ concluded that the opinions of Plaintiff's treating physician, Dr. Allison Christie, were not persuasive because Dr. Christie's opinions were “inconsistent with one another.” Id. Dr. Christie opined in December 2018 that Plaintiff remained able to lift up to 50 pounds, sit for eight hours per day and stand for four hours per day, while noting that in May 2018 Plaintiff “had lesser dysfunction.” Id. But in a subsequent opinion, Dr. Christie “asserted that prior to May 2018, [Plaintiff] had been able to lift only 20 pounds and sit for only 5 hours.” Id. The ALJ further noted that Dr. Christie provided a letter which stated that Plaintiff experienced “frequent dizziness and daily headache, yet this statement is not supported by her own medical observations.” Id. Rather, the ALJ stated that Dr. Christie's clinical records “do not document ongoing signs of headache. In fact, but for some brief treatment for sinus symptoms, Dr. Christie has generally observed normal attention span, thought, memory, gait, and interactions.” Id.
Second, ALJ LaChance also found the opinion of consultative psychologist Dr. Martin Brutus “less than persuasive,” because it was unclear. Id. Although Dr. Brutus found that Plaintiff had functional limitations, he said that they were due to parenting responsibilities, and he failed to articulate any specific limitations for Plaintiff. Id.
Third, and in contrast, ALJ LaChance found that the opinions of State Agency reviewing physician Dr. Donald Swartz and State Agency reviewing psychologist Dr. John Petty were “generally persuasive.” Id. Nonetheless, because these sources “did not fully consider the impact of all the medical conditions,” the ALJ “reduced the residual functional capacity to sedentary work and . . . added additional limitations to account for any safety and/or fatigue issues given the evidence of POTS.” Id.
At the fourth step, citing the hearing testimony of the vocational expert (“VE”), the ALJ found that Plaintiff was unable to perform her past relevant work as a front desk clerk, a teacher's aide, and a childcare worker. AR 24.
At the fifth step, the ALJ noted that Plaintiff, at age 25, was a “younger individual,” and that transferability of job skills was “not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is ‘not disabled,' whether or not the claimant has transferable job skills.” Id. The ALJ stated that if Plaintiff “had the residual functional capacity to perform the full range of sedentary work, a finding of ‘not disabled' would be directed by Medical-Vocational Rule 201.28.” Id. But the ALJ concluded that Plaintiff's “ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations.” Id. Thus, “[t]o determine the extent to which these limitations erode the unskilled sedentary occupational base, the [ALJ] asked the vocational expert whether jobs exist in the national economy for an individual with [Plaintiff's] age, education, work experience, and [RFC].” Id. The VE testified that Plaintiff could perform the requirements of representative occupations such as (1) small parts inspector (104,500 jobs in the national economy); (2) final assembler (104,500 jobs in the national economy); and (3) laminator (95,500 jobs in the national economy). AR 24-25. Citing SSR 004p, the ALJ determined that the VE's testimony was “consistent with the information contained in the Dictionary of Occupational Titles.” AR 25. Relying upon the VE's testimony, the ALJ found that, “considering [Plaintiff's] age, education, work experience, and [RFC],” Plaintiff could adjust to other work that existed in significant numbers in the national economy. Id. ALJ LaChance therefore concluded that Plaintiff was not disabled from the alleged onset date, February 11, 2016, through the date of the decision, March 7, 2019. Id.
II. The ALJ's RFC Determination
Plaintiff's contentions that the ALJ erred in evaluating her credibility and erred in evaluating the medical evidence and other evidence in the record all fundamentally amount to challenges to the ALJ's RFC determination. But for the reasons set forth below, the ALJ applied the correct legal standards to the evidence in the record, and her RFC determination is supported by substantial evidence.
A. Credibility Determination
Plaintiff maintains that the ALJ erred in evaluating her credibility. Pl.'s Mem. of Law at 17-21. The SSA has eliminated the use of the term “credibility” in its sub-regulatory policy because SSA regulations do not use this term. See SSR 16-3p, 2017 WL 5180304, at *2 (S.S.A. Oct. 25, 2017). Rather, in accordance with SSA regulations, an ALJ is required to consider all of the evidence in a claimant's record in evaluating the intensity, persistence, and limiting effects of a claimant's symptoms. Id. SSA regulations set forth a two-step process for evaluating a claimant's subjective complaints about his or her symptoms and the effect they have on the claimant's ability to work. First, the ALJ determines whether the claimant suffers from a “medically determinable impairment[] that could reasonably be expected to produce [his or her] symptoms, such as pain.” 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1). If the ALJ determines that to be the case, then in the second step, the ALJ determines “the extent to which [the claimant's] symptoms limit [his or her] capacity for work.” Id.
When evaluating the intensity, persistence, and limiting effects of a claimant's symptoms, the ALJ must consider all available evidence, including objective medical evidence and information regarding (i) the claimant's daily activities; (ii) the location, duration, frequency, and intensity of his or her symptoms; (iii) any precipitating and aggravating factors; (iv) the type, dosage, effectiveness, and side effects of any medications taken; (v) treatment other than medication used to relieve the claimant's symptoms; (vi) any measures used to relieve his or her symptoms; and (vii) other factors concerning functional limitations and restrictions resulting from the claimed symptoms. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii); SSR 16-3p, 2017 WL 5180304, at *7-8. The ALJ is not required to “discuss all the factors, however, as long as the decision includes precise reasoning, is supported by evidence in the case record, and clearly indicates the weight the ALJ gave to the claimant's statements and the reasoning for that weight.” Simmons v. Comm'r of Soc. Sec., 103 F.Supp.3d 547, 569 (S.D.N.Y. 2015) (quotation marks omitted); see also Donofrio v. Saul, No. 18-cv-9968 (ER), 2020 WL 1487302, at *6 (S.D.N.Y. March 27, 2020) (“If the ALJ decides to reject subjective testimony concerning pain and other symptoms, he [or she] must do so explicitly and with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the ALJ's disbelief and whether his [or her] determination is supported by substantial evidence.”) (quotation marks omitted); SSR 16-3p, 2017 WL 5180304, at *10.
Although Point I in Plaintiff's moving brief is titled “The ALJ Erred in Evaluating Plaintiff's Credibility,” Plaintiff focuses on criticizing the ALJ for failing to credit the statements submitted by Plaintiff's sister and mother. See Pl.'s Mem. of Law at 18-20; AR 460, 462-66. The ALJ explained that although she considered these statements, they “largely address [Plaintiff's] personal history and/or behaviors during adolescence” and “offer little to explain [Plaintiff's] recent or current functioning.” AR 23. An ALJ may discount information concerning events that occurred outside of the relevant period. See Teuscher v. Astrue, No. 11-cv-899 (GLS), 2012 WL 3061605, at *5 (N.D.N.Y. July 26, 2012) (ALJ “appropriately discredited” statements from plaintiff's sisters describing events that “occurred outside of the adjudicative time period”); Palmer v. Astrue, No. 10-cv-151 (JGM), 2011 WL 3881024, at *5 (D. Vt. Sept. 2, 2011) (finding substantial evidence supported ALJ's determination that statements by plaintiff's family and friend “should be afforded little weight because they did not specifically describe her functional limitations during the relevant time period”). Accordingly, the ALJ did not err in deciding not to credit the statements from Plaintiff's sister and mother.
The ALJ also did not err in evaluating Plaintiff's subjective complaints. As the ALJ explained, the treatment notes in the record (discussed in more detail in Section II.C, infra) refer to Plaintiff's participation in work, personal, and recreational activities, which suggests substantially greater functional capacity than Plaintiff testified to during the hearing. See AR 1719, 22-23. It was appropriate for ALJ LaChance to consider this evidence in deciding to discount aspects of Plaintiff's testimony. See Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir. 2009) (per curiam) (ALJ's finding that claimant's testimony about his limitations was not fully credible was appropriate in part because of evidence regarding claimant's activities, such as caring for his one-year-old child, including changing diapers, sometimes vacuuming and washing dishes, occasionally driving, and watching television, reading, and using the computer); see also AR 862 (Plaintiff reported to Dr. Brutus, “I have one son.... I cook his meals, keep age appropriate learning activities, toys, books, shows at the house. I make sure he has fairly regular play dates, so he can socialize with his peers. I get him dressed or into pajamas, change [h]is diapers and give him bathes [sic]....”). Notwithstanding Plaintiff's testimony and information that she provided in Function Reports, see AR 72, 76, 81-82, 291, 336, as the ALJ also noted, none of Plaintiff's treating sources observed in their treatment notes that Plaintiff was unable to stand or walk for more than short periods. AR 23. Courts “defer to an ALJ's decision to discredit subjective complaints if the decision is supported by substantial evidence.” Watson v. Berryhill, 732 Fed.Appx. 48, 52 (2d Cir. 2018) (summary order) (citing Aponte v. Sec., Dep't of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)). As set forth in the ALJ's decision, and as explained further in the discussion of the medical opinion evidence and the treatment notes in the record, infra, there is substantial evidence to support the ALJ's determination not to credit Plaintiff's statements about the severity of her symptoms.
B. The ALJ's Evaluation of the Medical Opinion Evidence
Plaintiff contends that the ALJ improperly weighed the medical opinion evidence. More specifically, Plaintiff asserts that the ALJ “erred in determining the persuasiveness she awarded to the opinions of treating sources vs. State agency non-examining sources.” Pl.'s Mem. of Law at 22; see AR 23.
Because Plaintiff filed her applications for DIB and SSI after March 27, 2017, her claims are governed by the SSA's current regulations concerning the consideration of medical opinions. See 20 C.F.R. §§ 404.1520c, 416.920c. “Under the new regulations, a treating doctor's opinion is no longer entitled to a presumption of controlling weight.” Knief v. Comm'r of Soc. Sec., No. 20-cv-6242 (PED), 2021 WL 5449728, at *6 (S.D.N.Y. Nov. 22, 2021) (quotation marks omitted). Rather, an ALJ will neither defer, nor give any specific evidentiary weight, to any medical opinion. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). An ALJ must evaluate the persuasiveness of all medical opinions based on the following factors: (1) supportability; (2) consistency; (3) the medical source's relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the medical opinion. 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). Supportability and consistency are considered the most important factors in evaluating a medical opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2); see Knief, 2021 WL 5449728, at *6. With respect to supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). With respect to consistency, “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). As part of his or her decision, the ALJ must explain how the factors of supportability and consistency were considered. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2); see Knief, 2021 WL 5449728, at *6. In general, the ALJ may, but is not required to, explain how the other factors were considered. But when the ALJ determines that two or more medical opinions about the same issue are both “equally well-supported” and “consistent with the record,” but “are not exactly the same,” the ALJ must also articulate how he or she considered the other factors for those medical opinions. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3).
1. Dr. Christie
With respect to Dr. Christie's opinions, the ALJ found that they were not persuasive because they were “inconsistent with one another.” AR 23. Dr. Christie's December 2018 opinion stated that Plaintiff could occasionally lift up to 50 pounds; sit eight hours in a day; stand four hours in a day; and walk three hours in a day; and that Plaintiff had “lesser dysfunction” before May 2018. AR 1083-88 (emphasis added). In contrast, Dr. Christie's January 2019 opinion, which covered the period from 2017 to May 2018, rather than reflecting “lesser dysfunction” during timeframe, states that Plaintiff could only occasionally lift up to 20 pounds; sit five hours in a day; stand one hour in a day; and walk one hour in a day. AR 1110-15. It was appropriate for the ALJ to discount Dr. Christie's opinions based on this inconsistency. See Micheli v. Astrue, 501 Fed.Appx. 26, 28 (2d Cir. 2012) (summary order) (“A physician's opinions are given less weight when his [or her] opinions are internally inconsistent.”).
Although dated January 29, 2018, it is apparent from the administrative record that Dr. Christie filled out this medical source statement form in January 2019. See AR 1108-09.
The ALJ also concluded that Dr. Christie's January 2019 letter, in which she states that Plaintiff was frequently dizzy and suffered from daily headaches, see AR 1104, was “not supported by Dr. Christie's own clinical observations,” AR 23. Plaintiff challenges this finding by arguing that Dr. Christie's treatment records do evidence daily headaches and incapacitating migraines. See Pl.'s Mem. of Law at 22. But the records specifically cited by Plaintiff are for an office visit on January 10, 2017, which notes that Plaintiff was experiencing sinus headaches related to acute bacterial sinusitis, AR 703-04, and a record for an office visit on September 8, 2017, at which Plaintiff complained of, and was treated for, a migraine that was “not intractable,” AR 680-81. Given the frequency with which Dr. Christie treated Plaintiff during this time period, this is hardly evidence of “daily headaches.” Plaintiff also cites a record for an office visit on December 4, 2018, when Plaintiff asked Dr. Christie to complete disability paperwork. In that record, Dr. Christie writes that “[t]he basis of her disability is POTS symptoms. She is frequently dizzy, it's just a state of life. There are associated headaches, headache every day. Migraine every 2 weeks or so that incapacitate her for 2-3 days at a time.” AR 1096. While there is a reference to “daily headaches” here, these statements appear to be based on Plaintiff's self-reporting, and are not substantiated by Dr. Christie's overall treatment records. See AR 882-87, 890-94, 897- 902, 969-74, 1029-36, 1039-40. A treating physician's opinion can be discounted when it is inconsistent with the physician's own treatment records. See, e.g., Dorta v. Saul, No. 19-cv-2215 (JGK) (RWL), 2020 WL 6269833, at *5 (S.D.N.Y. Oct. 26, 2020) (ALJ was entitled to discount treating physicians' opinions because they “were inconsistent with their own contemporaneous treatment notes and other evidence in the record”) (citing cases). Because Dr. Christie's medical opinions were neither supportable based on her own records of treating Plaintiff nor consistent with either her own opinions or other evidence in the record, it was not error for the ALJ to find Dr. Christine's opinions unpersuasive here.
It is apparent from the administrative record that this letter dated January 2, 2018, actually was prepared in January 2019. See AR 1103.
Moreover, as explained below, the treatment notes in the record from other medical providers likewise reflect that Plaintiff's headaches were not disabling.
2. Dr. Brutus
Plaintiff also challenges the ALJ's decision to disregard Dr. Brutus's opinion. See Pl.'s Mem. of Law at 22. But the ALJ's treatment of this opinion is understandable in light of Dr. Brutus's failure in his report to elucidate Plaintiff's ability to function in the workplace. See AR 23, 860-68. Dr. Brutus's mental status examination found that although Plaintiff was guarded, and her affect was constricted, she was cooperative; her speech was at a normal rate and volume; her mood was congruent with the content of her thoughts and the situation; her eye contact was unremarkable; and her thought processes and associations were clear, coherent, and relevant. AR 863. In addition, Plaintiff exhibited neither a formal thought disorder nor perceptual disturbance; she was alert and fully oriented; her attention and concentration were adequate; there were no issues with memory; her intellectual functioning was average; and her insight and judgment were fair, although they both might suffer during times of stress. AR 863. Dr. Brutus also noted that although Plaintiff wrote about herself in a Function Report that “completing tasks, remembering, concentrating, following instructions and getting along with others are restricted due to her condition,” Dr. Brutus observed that “these same parameters were managed adequately during this evaluation,” and Plaintiff “was positively engaged in the interview.” AR 865. As the ALJ pointed out, Dr. Brutus “asserted that there are functional limitations in this case, but he then indicated that they are due to parenting responsibilities.” AR 23; see AR 864 (“If she is found either disabled or not disabled, she still would need to meet parenting obligations and not be able to work in the community.”), 866 (“Working outside the home can be a problem because client already has existing parenting responsibilities.”). Dr. Brutus also surmised that because the law requires employers to make reasonable accommodations for employees who are disabled, “there ought to be employers who would provide reasonable accommodations” to Plaintiff if she were found to be disabled. AR 866. Dr. Brutus' opinion, which did not include an assessment of Plaintiff's work-related mental limitations, did little to aid in the ALJ's determination of Plaintiff's RFC.
Plaintiff contends that if the ALJ thought Dr. Brutus's opinion was unclear, then she had a duty to develop the record to get clarification. See Pl.'s Mem. of Law at 22-23. But “[t]he ALJ is not required to develop the record any further when the evidence already presented is adequate for the ALJ to make a determination as to disability.” Janes v. Berryhill, 710 Fed.Appx. 33, 34 (2d Cir. 2018) (summary order) (quotation marks and brackets omitted); see also Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (“[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.”) (quotation marks omitted). With respect to reports from consultative examiners, the Social Security regulations “require an assessment of ‘[w]hether the report provides evidence which serves as an adequate basis for decisionmaking in terms of the impairment it assesses'” and “further provide that ‘[i]f the report is inadequate or incomplete, we will contact the medical source who performed the consultative examination, give an explanation of our evidentiary needs, and ask that the medical source furnish the missing information or prepare a revised report.'” Harkins v. Colvin, No. 15-cv-5223 (NSR) (JCM), 2016 WL 8669981, at *16 (S.D.N.Y. Dec. 8, 2016) (quoting 20 C.F.R. § 404.1519p(a)(1) and 20 C.F.R. § 404.1519p(b)), adopted by 2017 WL 1239655 (S.D.N.Y. Mar. 31, 2017). Dr. Brutus's findings, as summarized above, formed an adequate basis for the ALJ to evaluate Dr. Brutus's report, and the report itself was neither inadequate nor incomplete. Plaintiff does not point to any gaps in the voluminous administrative record that would have required the ALJ to develop the record any further, and “because the record as a whole was not otherwise incomplete,” the ALJ did not err by not asking Dr. Brutus to clarify his opinion. Harkins, 2016 WL 8669981, at *16.
3. State Agency sources
The ALJ did not err in finding persuasive the opinions of the non-examining State Agency sources, Dr. Swartz (physician) and Dr. Petty (psychologist). The SSA's new regulations regarding the consideration of medical opinions “eliminate the perceived hierarchy of medical sources, deference to specific medical opinions, and assigning weight to a medical opinion.” Victor B. v. Comm'r of Soc. Sec., No. 20-cv-1154 (FPG), 2021 WL 3667200, at *2 (W.D.N.Y. Aug. 18, 2021) (quotation marks omitted). Furthermore, “when supported by evidence in the record, the opinion of a nonexamining physician can also constitute substantial evidence.” Rose o/b/o X.G.T.A. v. Berryhill, No. 18-cv-509 (LGS) (SN), 2019 WL 2453352, at *3 (S.D.N.Y. Feb. 4, 2019), adopted by 2019 WL 2498279 (S.D.N.Y. June 17, 2019).
The discussion of the treatment notes below confirms that the opinions of Dr. Swartz and Dr. Petty are supported by evidence in the record.
Dr. Swartz opined that in an eight-hour workday, Plaintiff could occasionally lift and/or carry up to 20 pounds; frequently lift and/or carry up to 10 pounds; and stand, walk, or sit for six hours. AR 179. He further opined that Plaintiff had no limitations on pushing or pulling, climbing ramps or stairs, balancing, kneeling, crouching, or crawling, and could frequently climb ladders, ropes, or scaffolds and stoop, and that Plaintiff's only environmental limitation was that she should avoid exposure to hazards. AR 179-80. Dr. Petty opined that Plaintiff was moderately limited in her ability to maintain attention and concentration for extended periods, and moderately limited in her ability to 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. AR 181-82. He explained, however, that Plaintiff retained the capacity to maintain concentration, persistence, and pace for two-hour periods over an eight-hour day throughout a week. AR 182.
The ALJ's RFC determination-that Plaintiff “can maintain concentration/persistence/ pace on simple tasks in 2-hour blocks over a typical workday and workweek[,] . . . is able to adapt to occasional changes[,] . . . [and] can tolerate brief, routine interaction with the public and with co-workers on an occasional basis,” AR 21-is not only consistent with Dr. Petty's opinion, but is also consistent with Dr. Christie's opinion. With respect to Plaintiff's mental functional limitations, Dr. Christie noted that Plaintiff's concentration was impaired by her POTS, migraines, anxiety, panic attacks, PTSD, and depression, but she did not state the extent of the impairment. AR 1092. The only other mental functional limitations that Dr. Christie described were moderate limitations in Plaintiff's ability to understand, remember, and carry out complex instructions, and slight limitations in Plaintiff's ability to make judgments on simple and complex work-related decisions. AR 1091-92. Dr. Christie opined that Plaintiff had no limitations at all in either her ability to understand, remember, and carry out short, simple instructions, her ability to respond appropriately with supervision, co-workers, and the public, or her ability to respond to changes in the routine work setting. Id.
And even though the ALJ found the opinions of Dr. Swartz and Dr. Petty persuasive, she did not simply accept their analyses in full-she acknowledged that the State Agency sources “did not fully consider the impact of all the medical conditions,” and therefore reduced Plaintiff's RFC “to sedentary work and [ ] added additional limitations to account for any safety and/or fatigue issues given the evidence of POTS.” AR 23. Although an ALJ's RFC determination “may not perfectly correspond with any of the opinions of medical sources cited in his [or her] decision, he [or she] [is] entitled to weigh all of the evidence available to make an RFC finding that [is] consistent with the record as a whole.” Matta v. Astrue, 508 Fed.Appx. 53, 56 (2d Cir. 2013) (summary order). Moreover, “[g]enuine conflicts in the medical evidence are for the Commissioner to resolve,” Veino, 312 F.3d at 588; see Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012), and an ALJ may “choose between properly submitted medical opinions,” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998). It was therefore entirely appropriate for the ALJ to resolve conflicts in the medical evidence and choose among the medical opinions of Plaintiff's treating source Dr. Christie, consultative examiner Dr. Brutus, and non-examining State Agency sources Dr. Swartz and Dr. Petty in formulating Plaintiff's RFC.
4. Dr. Hayden
In her reply brief, Plaintiff cites the June 9, 2016, report of consultative examiner JP Hayden, a licensed psychologist-master, as “not supportive of the ALJ's RFC.” Reply Mem. at 7. Although Dr. Hayden reported that Plaintiff's affect was flat and “she was extremely lethargic,” Dr. Hayden also reported that Plaintiff “drove herself to the interview and was on time”; her thoughts were expressed clearly; she was fully oriented; she had no disordered thoughts; her memory appeared intact; and she had no cognitive impairment. AR 743-44. Dr. Hayden diagnosed Plaintiff with dysthymic disorder, panic disorder (subsumed under PTSD), PTSD, and medical and occupational problems, AR 744, but Dr. Hayden did not provide an assessment of Plaintiff's functional abilities with respect to work-related mental activities.
Plaintiff does not expressly assign error to the ALJ for her failure to discuss Dr. Hayden's report. Rather, in her moving brief, Plaintiff comments only that Dr. Hayden “did not have the benefit of evaluating the hundreds of pages of medical evidence added to the file subsequent to his examination date.” Pl.'s Mem. of Law at 12 n.6. But even if the ALJ erred in failing to discuss Dr. Hayden's report, such error may be deemed harmless, since it would not have affected the outcome of the ALJ's decision. See Walzer v. Chater, No. 93-cv-6240, 1995 WL 791963, at *9 (S.D.N.Y. Sept. 26, 1995) (concluding ALJ's failure to discuss a treating physician's report was harmless error because doing so would not have changed ALJ's decision); see also Jaghamin v. Comm'r of Soc. Sec., No. 11-cv-1273 (GLS), 2013 WL 1292061, at *7 (N.D.N.Y. Mar. 28, 2013) (where opinion offered no assessment of plaintiff's functional capabilities, opinion would not have changed outcome and ALJ's “failure to explicitly discuss the report” was harmless error) (citing Walzer). As noted above, Dr. Hayden did not provide an assessment of Plaintiff's functional abilities.
Moreover, to the extent that the ALJ did consider Dr. Hayden's report without specifically referencing it, see AR 21 (making RFC finding “[a]fter careful consideration of the entire record . . .”), the ALJ was entitled to assess it in light of the other medical evidence in the record. For example, treatment notes from an appointment with Psychiatric Mental Health Nurse Practitioner (“NP”) Jessica Terrien on July 6, 2016, almost a month after the appointment with Dr. Hayden, indicate that Plaintiff “had to stop coming to counseling because of her work schedule ....” and reflect that although Plaintiff had a blunted affect and an up and down mood, she also had normal sleep, calm motor activity, intact thought process, normal thought content, no perceptual disturbances, fair insight, and a fully oriented and alert mental status. AR 626. Treatment records from an August 31, 2016, appointment with NP Terrien note that Plaintiff “started to get more kids in the home daycare” and had been “feeling ok” and that her depression and anxiety were both “[i]mproving.” AR 747-48. At most, Dr. Hayden's report presents a conflict in the medical evidence, and “[g]enuine conflicts in the medical evidence are for the Commissioner to resolve.” Veino, 312 F.3d at 588. In short, Dr. Hayden's report, when assessed as part of the entire administrative record, does not compel a different outcome here.
C. Treatment Notes from Plaintiff's Medical Providers
“A finding as to RFC will be upheld on review when there is substantial evidence in the record to support the requirements listed in the regulations.” Jiminez v. Astrue, No. 12-cv-3477 (GWG), 2013 WL 4400533, at *12 (S.D.N.Y. Aug. 14, 2013) (quotation marks omitted). Plaintiff challenges the ALJ's decision as not being supported by substantial evidence. She maintains that the ALJ was “continually dismissive of the many symptoms, both physical and mental, suffered [ ] during the relevant period, . . .,” and that the ALJ erred because she “cherry picked from the vast amount of documentation as to which symptoms were credited and which were disparaged.” Pl.'s Mem. of Law at 23-24. In her reply brief, Plaintiff marshals all of the evidence in the record that she believes shows the severity of her physical and mental symptoms. See Reply Mem. at 2-5.
An ALJ is not required, however, to “explicitly . . . reconcile every conflicting shred of medical testimony.” Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981); see also Jones v. Berryhill, 415 F.Supp.3d 401, 415 (S.D.N.Y. 2019); Daniels v. Berryhill, 270 F.Supp.3d 764, 775 (S.D.N.Y. 2017). Nor is an ALJ required to state on the record every reason justifying a decision. Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012). “An ALJ's failure to cite specific evidence does not indicate that such evidence was not considered.” Id. (quotation marks omitted); see also Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d Cir. 2013) (per curiam) (“An ALJ need not recite every piece of evidence that contributed to the decision, so long as the record ‘permits us to glean the rationale of an ALJ's decision.'”) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)). There is nothing inappropriate about the ALJ's decision not to describe each and every item of medical evidence in the voluminous administrative record in this case, and the ALJ's finding as to Plaintiff's RFC, which she arrived at “[a]fter careful consideration of the entire record,” AR 21, is supported by substantial evidence. See AR 18-19, 22-23.
With respect to Plaintiff's physical impairments, there is substantial evidence in the record to support the ALJ's finding that Plaintiff's symptoms were not disabling. Regarding POTS, while Plaintiff occasionally complained of dizziness and shortness of breath, as the ALJ found, the record does not support a conclusion that these symptoms rendered Plaintiff disabled. An electrocardiogram in December 2016 showed only borderline tachycardia. AR 707. Although cardiologist Mark A. Capeless initially diagnosed Plaintiff with POTS in January 2017, he and one of Plaintiff's subsequent healthcare providers, neurologist Jean Marie Prunty, later questioned the diagnosis, and in October 2017, Dr. Capeless thought that the issue had resolved given that Plaintiff was not experiencing an elevated heart rate while standing. AR 18 (citing Exs. 11F and 20F (Dr. Capeless's and Dr. Prunty's records)), 769 (“It is not clear what Ms. Nicoletti really does have. She may have had some element of POTS, but that seems to have resolved.”), 921 (Dr. Prunty noted, “[S]he has a questionable medical [history] of ‘[POTS]' with postural dizziness and palpitations. [H]owever after reviewing her cardiologists [sic] notes, holter results, the [diagnosis] is not clear to me.”). Plaintiff also failed to follow the advice of her cardiologists to wean her infant son so that she could take medications for her condition, to take sufficient fluids, and to begin a formal exercise program. AR 18-19, 765, 769, 921, 928-29, 961-62, 1005, 1007-08. In March 2018, cardiologist Adam W. Kunin noted that Plaintiff's tachycardia symptoms were “tolerable” and that he would see her again in a year. AR 928-29; see AR 1008 (in treatment note for September 24, 2018, appointment, Dr. Kunin reported that “[o]rthostatics today were reassuring”).
On January 23, 2019, after Plaintiff's hearing before the ALJ, Plaintiff saw specialist Dr. Peter Novak at Brigham and Women's Hospital in Boston, who concluded that Plaintiff might have autonomic dysfunction/POTS and had chronic headaches. See AR 1124-25 (“Impression: 1. Autonomic dysfunction/POTS ? 2. Headaches, chronic”). Dr. Novak recommended a number of tests in connection with the diagnosis, as well as the medication verapamil for tachycardia, and he agreed with the prescription of Topamax for headaches. AR 1125; see AR 1107 (Topamax had been prescribed to Plaintiff on January 8, 2019, by neurologist Dr. Robert E. Shapiro). In her appeal of the ALJ's decision, Plaintiff submitted additional evidence to the Appeals Council, including mental health treatment notes from February through June 2019, see AR 2, 35-45, but she did not submit any further evidence regarding her autonomic dysfunction/POTS diagnosis and/or treatment following the appointment at Brigham and Women's Hospital. Plaintiff maintains that the ALJ's failure to discuss Dr. Novak's and Dr. Shapiro's treatment records “warrants reversal and remand.” See Pl.'s Mem. of Law at 21-22. But the ALJ did reference Dr. Shapiro and his treatment records in her decision, see AR 19, 21, and any failure to discuss Dr. Novak in the decision is no more than harmless error, as there is nothing in his treatment records that was inconsistent with any of the other treatment records expressly cited by the ALJ in her decision. See Walzer, 1995 WL 791963, at *9 (“While the ALJ should have discussed Dr. Leahy's report in his decision (even though her report was received after the close of the hearing), the ALJ's failure to do so was harmless error, since his written consideration of Dr. Leahy's report would not have changed the outcome of the ALJ's decision. Essentially, Dr. Leahy's report as to Walzer's gait difficulty was consistent with all the other medical testimony considered by the ALJ.”). Dr. Novak, like Drs. Capeless and Prunty, was unsure of Plaintiff's POTS diagnosis, and he agreed with Dr. Shapiro's choice of medication for the treatment of Plaintiff's headaches.
Regarding migraines, it appears that Plaintiff first complained of migraines in April 2016. A treatment note from an office visit with Family NP (“FNP”) Cheryl Holton on April 13, 2016, indicates that Plaintiff complained of a migraine but felt that increasing sinus pressure might have triggered the pain and continuing symptoms. AR 18 (citing Ex. 7F (Stowe Family Practice records)), 670. FNP Holton assessed Plaintiff with allergic rhinitis, sinusitis, and migraine, and noted that they would “treat for sinusitis to see if this is the underlying etiology of her headaches.” AR 671. FNP Holton further noted that the plan for treatment of Plaintiff's migraine was for Plaintiff to “try to find some help and get more sleep, increase calories and number of times you eat, recheck if no better to discuss other options for nursing mom.” Id.
The next time that Plaintiff complained of a migraine was over a year later, on September 8, 2017, and her migraine was without aura and not intractable. AR 680. A brain MRI taken on September 9, 2017 was normal. AR 728 (Ex. 8F, Morrisville Family Health Care records), 921 (Ex. 20F, Dr. Prunty's treatment notes). In October 2017, Plaintiff reported to Dr. Christie that she was having migraines more frequently-three to four times a month-but she had “never taken any medication to prevent migraine,” and ibuprofen “usually work[ed] reasonably well to stop the migraine, but is less effective in recent months than it has been in the past.” AR 808. Nonetheless, in March 2018, Dr. Kunin noted that Plaintiff's migraines had improved on their own. AR 928 (“Her condition has also been complicated by what I believe are possible migraine headaches, but these unfortunately [sic] improved on their own.”); see AR 18 (citing Ex. 21F (Dr. Kunin's treatment notes)). Although the record reflects that Plaintiff sporadically sought treatment for headaches and migraines in general, there is no evidence that these were debilitating or would prevent Plaintiff from working. AR 665-66 (sinus headache accompanying chest cold/upper respiratory infection), 701-02 (sinus headache due to sinusitis), 703-04 (same), 709-10 (sinus headache accompanying upper respiratory infection), 921-22 (at 1/29/2018 appointment with Dr. Prunty, Plaintiff complained of “headaches for months” and was assessed with chronic migraine, but also reported that “she runs an at home day care”), 896 (although diagnosed with vestibular migraine on 3/28/2018, since Plaintiff was “asymptomatic or minimally symptomatic, at this time will not give her any treatment”), 1037-38 (sinus headache accompanying sinusitis), 1106-07 (on 1/8/2019 Plaintiff saw neurologist Dr. Shapiro for evaluation and management of headaches; exam was normal; Plaintiff was diagnosed with chronic migraine without aura without status migrainosus not intractable, was prescribed medication, and was instructed to return in 4 months); see AR 18-19 (citing Exs. 7F, 8F, 18F, 20F, 31F, 38F).
Dr. Prunty's assessment was somewhat contradictory in that Dr. Prunty assessed “[i]ntractable chronic migraine . . . without status migrainosus,” AR 922 (emphasis added), but intractable migraine is, by definition, status migrainosus. See Healthline, “What is Status Migrainosus?,” available at www.healthline.com/health/migraine/status-migrainosus (last visited 2/21/2022) (“Status migrainosus is an especially severe and long-lasting form of migraine headache. It's also called an intractable migraine.”).
With respect to her mental impairments, Plaintiff appears to have sought limited treatment-there is no evidence in the record of Plaintiff seeking any mental health treatment at all from the end of August 2016 through the middle of April 2018-and she resisted taking medication. AR 481, 484, 487, 638, 885, 890; see AR 17 (citing Ex. 1F (Stowe Family Practice records) and Ex. 6F (records from Community Health Services of Lamoille Valley)), 18 (citing Ex. 18F (Morrisville Family Health Care records)). Aside from a blunted affect and anxious mood, examination findings were essentially normal, including with respect to Plaintiff's appearance, behavior, speech, thought content, thought process, perception, memory, judgment, and insight. AR 17-18, 626, 629, 632, 635, 638, 641, 645-46, 748, 751, 886. As noted by the ALJ, NP Terrien reported that Plaintiff was interested in obtaining disability benefits and that she wanted to stay home with her infant child. AR 17, 643, 646; see also AR 634, 637. At the same time, NP Terrien observed that Plaintiff maintained a normal ability to perform daily activities despite her impairments. AR 17, 645; see also AR 631 (Plaintiff went to a “BabyChat” group), 637 (Plaintiff went to “Mommy and Me Yoga”), 989 (August 2018 treatment note in Ex. 26F from Plaintiff's licensed clinical mental health counselor Melissa Mason notes that Plaintiff participated in a “POTS group”). As also noted by the ALJ, by August 2016, NP Terrien reported that Plaintiff was “feeling ok,” with an improved mood since Plaintiff had been “able to work from home as a child care provider,” AR 18, 747-48, and that Plaintiff's depression and anxiety were both “improving.” AR 748. Overall, there is substantial evidence in the record to support the ALJ's finding that Plaintiff's mental health symptoms were not disabling.
Plaintiff contests the ALJ's failure to address in any way her other claimed impairments of panic disorder, scoliosis of the back, bursitis of the hips, and IBS. See Pl.'s Mem. of Law at 17. Of these, only two-scoliosis and IBS-were listed as impairments in Plaintiff's applications for DIB and SSI, see AR 113-14, 128-29; the other two-panic disorder and bursitis of the hips-were articulated as impairments only in a pre-hearing letter from Plaintiff's counsel to ALJ LaChance, which referred to a Function Report filled out by Plaintiff on November 6, 2018, see AR 456 (citing Ex. 28E (AR 412-19)). This argument does not align with the additional impairments listed on Plaintiff's applications for DIB and SSI, which were PTSD, scoliosis, IBS, and frequent UTIs. See AR 113-14, 128-29. In any event, the ALJ did address Plaintiff's claimed impairments of scoliosis and hip bursitis in her step two analysis of the severity of Plaintiff's impairments. Discussing the medical evidence in the record, the ALJ noted that in May 2016, Dr. Christie described Plaintiff's scoliosis as “minor.” AR 18; see AR 659-60; see also AR 669 (in treatment record from April 14, 2016, FNP Holton noted that Plaintiff had a history of “[m]inor scoliosis” and denied previous back issues). The ALJ also noted that in July 2018, Dr. Christie diagnosed Plaintiff with trochanteric bursitis and prescribed physical therapy, but Plaintiff cancelled many physical therapy appointments, and a month later, Dr. Christie observed a normal gait and found that Plaintiff could engage in aerobic exercise. AR 19; see AR 969-70, 993-1004, 1039-40. With respect to Plaintiff's alleged impairment of a panic disorder, as the Commissioner notes in her motion papers, a panic disorder is an anxiety disorder, and the ALJ found that Plaintiff's anxiety was a severe impairment. See Def.'s Mem. of Law at 17 n.7. Lastly, although the ALJ did not address Plaintiff's IBS, and although the medical records reflect some treatment for IBS during the relevant time period, see AR 800-01, there is nothing in the record to indicate that IBS would affect Plaintiff's ability to perform sedentary work with the additional limitations included in the RFC.
This Function Report mentions only in passing “panic issues” brought on by changes in routine, AR 418; an earlier Function Report noted that Plaintiff had been having anxiety attacks and panic attacks, AR 286.
Although Plaintiff had an initial evaluation with a physical therapist for low back pain on April 14, 2016, she never attended any subsequent appointments and was discharged from treatment on June 28, 2016. See AR 600-04.
In cases where, as here, the ALJ finds certain claimed impairments to be severe, any failure by an ALJ either to classify additional claimed impairments as severe or non-severe, or failure to discuss additional claimed impairments at all, is harmless error. See Jones-Reid v. Astrue, 934 F.Supp.2d 381, 402 (D. Conn. 2012) (“At step two, if the ALJ finds an impairment is severe, the question whether the ALJ characterized any other alleged impairment as severe or not severe is of little consequence.... A harmless error approach is consistent with the Second Circuit's finding that step two severity determinations are to be used only to screen out de minimis claims.”) (quotation marks omitted), aff'd, 515 Fed.Appx. 32 (2d Cir. 2013); see also Stover v. Saul, No. 18-cv-404 (MJR), 2020 WL 897411, at *8 (W.D.N.Y. Feb. 25, 2020) (“Moreover, even if the ALJ wholly failed to consider these conditions in fashioning the RFC, the failure was also harmless error. While the medical records in evidence indicate that plaintiff periodically received treatment for gynecological issues, hypertension, spine pain, and other physical ailments, there is nothing in the record to indicate that these conditions would affect her ability to perform sedentary work with the additional restrictions contained in the RFC.”). Accordingly, any failure by the ALJ here either to classify Plaintiff's scoliosis or hip bursitis as severe or non-severe or to address Plaintiff's panic disorder or IBS at all is no more than harmless error.
Finally, as recognized by the ALJ, throughout the treatment notes in the record are references to Plaintiff's involvement in activities, particularly work activities. AR 17-18. Notes from an occupational therapy evaluation on August 1, 2016 reference Plaintiff's “daycare and housekeeping jobs.” AR 608 (“Patient reported she works as a housekeeper on the weekends at Stowe Mountain Resort, and during the week she has a home daycare, caring for kids ages 2, 6, 6 months, as well as her own 9 month old.”). Notes from an August 31, 2016 appointment with NP Terrien reflect Plaintiff's report that she had four children in her home daycare and was doing some housekeeping. AR 747. Treatment notes from a January 16, 2017 appointment with Dr. Capeless report that Plaintiff “runs a daycare out of her home.” AR 760. An August 5, 2017 treatment note from Dr. Delores Burroughs-Biron reports that Plaintiff “has not seen her PCP [Dr. Christie] as [patient] runs a Daycare and hard to get away.” AR 692. A treatment note from an August 30, 2017 visit with NP Elise Rozendaal for a muscle strain suffered while “weeding with hedge trimmers” states that Plaintiff “runs home daycare so lifting toddlers and babies all day has exacerbated pain.” AR 682. Dr. Prunty's treatment notes from January 29, 2018 indicate that Plaintiff “tells me she runs an at home day care.” AR 922. Dr. Kunin's treatment notes from March 5, 2018 report that Plaintiff “is a very busy woman running a small daycare.” AR 928. A June 21, 2018 note of a home visit by DeAnne Blueter with Plaintiff and her son reports that there was a new baby in the childcare and that Plaintiff “watched his sister last year.” AR 1061. As referenced previously, Plaintiff also reported to her medical providers that she attended parenting groups, participated in yoga, gardened, and was exercising. AR 631, 637, 682, 803. The ALJ reasonably and appropriately considered all of Plaintiff's reported activities in determining her RFC. See, e.g., Cichocki, 729 F.3d at 178 (in formulating claimant's RFC ALJ properly relied on claimant's reported daily activities).
In addition, Plaintiff's cardiologist Dr. Kunin encouraged Plaintiff to exercise to help deal with her POTS. At an August 9, 2018, office visit, Plaintiff had questions about working out, and she was advised to engage in “Daily exercise/walking. As much as you can. Slowly build up.” AR 1005. And at a September 24, 2018 appointment, Dr. Kunin advised Plaintiff to “Keep up activity. Try for a daily walk.” AR 1008.
In sum, the ALJ included a detailed discussion of the medical and non-medical evidence in the record, including treatment records, medical opinion evidence, and Plaintiff's own testimony, as well as an explanation of how she evaluated such evidence, in arriving at her determination of Plaintiff's RFC. See AR 17-23. To the extent that the ALJ did not address every piece of evidence contributing to her decision, from its own review of the record, the Court can glean the rationale of the decision. The ALJ applied the correct legal standards in assessing both the statements from Plaintiff's family members and Plaintiff's subjective complaints and in weighing the medical opinion evidence, and the ALJ's RFC determination is supported by substantial evidence.
III. Step Five Determination
At step five of her analysis, the ALJ cited the VE's testimony that Plaintiff could perform the functions associated with the jobs of small parts inspector, final assembler, and laminator. AR 24-25. Plaintiff asserts that the ALJ erred by finding that the VE's testimony was “consistent with the information contained in the Dictionary of Occupational Titles [‘DOT'].” AR 25. She contends that this statement was “misleading, at best,” since the descriptions in the DOT for the jobs selected by the VE did not address limitations as to overhead reaching, absenteeism, and time off task, and the VE instead relied on her experience in the field for her opinion as to these limitations. See Pl.'s Mem. of Law at 25.
The hypothetical posed to the VE was for an individual with Plaintiff's age, education, and work experience who was limited to the sedentary level of exertion, with standing or walking no more than two hours in a day and sitting six hours in a day; who could never climb ladders, ropes, or scaffolds and could occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl; who must avoid work around hazards such as unprotected, dangerous machinery; who should not drive a motor vehicle for work; who should avoid extreme heat; who is limited to no more than moderate noise and a typical office setting; who could maintain concentration, persistence, and pace for simple tasks in two-hour blocks over a typical workday and workweek; who could only occasionally reach overhead; who could adapt to only occasional changes; and who could tolerate brief routine interaction with the public and coworkers on an occasional basis. AR 85-87.
The VE testified that such a hypothetical individual could perform the unskilled sedentary jobs of small parts inspector, final assembler, and laminator. AR 87. The VE added that in these jobs, the individual could be off task “10 percent of the workday outside of regular breaks, 15 minutes in the morning and afternoon and a 30-minute lunch period.” AR 87-88. The VE further testified that the tolerated level of absenteeism in these jobs would be missing one day per month. AR 88. When asked whether there was any conflict between her testimony and the DOT, the VE responded, “No,” but then further explained that the DOT did not “break down the reaching in different directions . . . [and the reaching] as well as the time off task and absenteeism would be based on [the VE's] professional experience, education and training with over 17 years in the field.” Id.
The Second Circuit has held that where job descriptions do not provide certain specific information, “[t]he law recognizes that vocational experts may be useful in supplementing the definitions [of the relevant occupational titles] in such circumstances.” Colvin v. Berryhill, 734 Fed.Appx. 756, 759 (2d Cir. 2018) (summary order) (quotation marks omitted). Therefore, it was permissible for the ALJ to rely on the VE's testimony regarding the extent to which limitations on overhead reaching, time off task, and absenteeism would impact the ability of the hypothetical individual to perform the jobs that the VE had identified.
Even though the ALJ included a limitation on overhead reaching in her hypothetical to the VE, she ultimately did not include any limitation on overhead reaching in her RFC determination. See AR 21. Thus, such a limitation is irrelevant to the question at step five of whether Plaintiff could perform any of the jobs cited by the VE.
Plaintiff additionally argues that the “ALJ cannot just accept the testimony of the VE without probing the basis therefor,” Pl.'s Mem. of Law at 25, citing the case of Lockwood v. Comm'r of Soc. Sec. Admin., 914 F.3d 87 (2d Cir. 2019). In Lockwood, the Second Circuit held that the Commissioner erred in relying on the testimony of a VE that contained “an unexplained apparent conflict” with the DOT. The Commissioner in that case determined that the plaintiff “suffered an impairment that required him to avoid all overhead reaching tasks,” id. at 92 (quotation marks omitted), and although the VE identified three jobs the plaintiff could perform that the VE said did not involve overhead reaching, the DOT stated that these jobs required occasional or frequent “reaching,” which a Social Security Program Policy Statement defined as “extending the hands and arms in any direction,” id. (quotation marks omitted) (emphasis in Lockwood). Thus, there was “at least an apparent conflict” between the VE's testimony and the job requirements specified in the DOT, and this apparent conflict “triggers the Commissioner's duty to elicit an explanation that would justify crediting the testimony.” Id.
In this case, there is no apparent conflict between the VE's testimony regarding jobs that Plaintiff could perform despite her limitations and the descriptions of those jobs in the DOT. Rather, Plaintiff maintains that “[n]one of these job descriptions fit the hypothetical questions posed by the ALJ at the hearing,” Pl.'s Mem. of Law at 25, based on the definitions of the jobs of small parts inspector, final assembler, and laminator in O*NET (Occupational Information Network), a jobs database that contains job descriptions that are different from the descriptions in the DOT. See Dennison v. Berryhill, No. 17-cv-1059F, 2019 WL 2088506, at *8 (W.D.N.Y. May 13, 2019); AR 478-79; Reply Mem. at 7-8. But the VE's reliance on the DOT, instead of on O*NET, “remains an accepted basis for vocational opinion according to the Commissioner's rules.” Dennison, 2019 WL 2088506, at *9 (quotation marks omitted) (collecting cases); see Byrd v. Kijakazi, No. 20-cv-4464 (JPO) (SLC), 2021 WL 5828021, at *19 (S.D.N.Y. Nov. 12, 2021) (“Courts in this Circuit have noted that the DOT is outdated, but continue to consider the DOT a permissible source for disability adjudications.”) (quotation marks omitted), adopted by 2021 WL 5827636 (S.D.N.Y. Dec. 7, 2021). Moreover, here, as in Dennison, Plaintiff “does not point to any caselaw from within the Second Circuit holding the VE's reliance on the DOT's job descriptions is improper. Nor does Plaintiff reference any authority calling into doubt the accuracy of job descriptions contained in the DOT as compared to those contained in the O*NET but, rather, baldly concludes that because the DOT's job descriptions have not been updated since 1991, they must be less accurate than those found on the O*NET database.” 2019 WL 2088506, at *9. And “unlike the DOT, O*NET does not appear in the Social Security Rulings as an approved source nor one with which the VE's testimony must be consistent.” Id.
In sum, the ALJ did not err in relying on the VE's testimony at step five of her analysis, and this testimony constitutes substantial evidence to support the ALJ's conclusion that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. See, e.g., Snyder v. Colvin, 667 Fed.Appx. 319, 321 (2d Cir. 2016) (summary order) (“When the hypothetical posed to the vocational expert is based on a [RFC] finding that is supported by substantial evidence, the hypothetical is proper and the ALJ is entitled to rely on the vocational expert's testimony.”).
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff's motion for judgment on the pleadings (ECF No. 19) be DENIED, the Commissioner's cross-motion for judgment on the pleadings (ECF No. 25) be GRANTED, and that judgment be entered in favor of the Commissioner.
NOTICE
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 (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kenneth M. Karas, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge 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 appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).