Opinion
22-CV-1020 (MKV) (BCM)
03-08-2023
SONIA NOVAS, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION TO THE HONORABLE MARY KAY VYSKOCIL
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Sonia Novas brings this action pursuant to § 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking judicial review of a final determination of the Commissioner of Social Security (Commissioner) denying her claim for disability insurance benefits (DIB). Now before me for report and recommendation (see Dkt. 12) are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkts. 15, 19.) For the reasons that follow, I recommend that plaintiff's motion be granted, that the Commissioner's motion be denied, and that the case be remanded to the Commissioner for further proceedings.
I. BACKGROUND
Plaintiff was born on November 27, 1958. See Certified Administrative Record (Dkt. 11) (hereinafter "R. ___") at 97. She has a bachelor's degree and was certified as a Credentialed Alcoholism and Substance Abuse Counselor Trainee. (R. 54-56.) From 2005 through 2019, plaintiff worked as a case manager/social worker at domestic violence and family shelters. (R. 35, 43-54, 255, 290.) She has also worked as a substance abuse and mental health counselor. (R. 4752.) Her last job was as a house aide at a domestic violence shelter, where she assisted families with housing and benefits, escorted clients to appointments, and made mental health referrals. (R. 35-36.) Plaintiff has not worked since August 23, 2019. (R. 35.) She applied for DIB on January 16, 2020, alleging disability since August 22, 2019, due to fibromyalgia, rheumatoid arthritis, diabetes, hypertension, depression, and an injury to her right leg. (R. 97-98.)
The Social Security Administration (SSA) denied plaintiff's claim initially on May 1, 2020, and on July 23, 2020, came to the same conclusion on reconsideration. (R. 122, 133.) On August 7, 2020, plaintiff requested a hearing before an Administrative Law Judge (ALJ). (R. 139-40.) On December 2, 2020, plaintiff and her counsel appeared by telephone before ALJ John Carlton. (R. 27.) After taking testimony from plaintiff (R. 31-86), and Vocational Expert (VE) Mary Vasishth (R. 86-94), the ALJ issued a written decision, dated February 22, 2021 (Decision) (R. 10-22), concluding that plaintiff was not disabled within the meaning of the Act. On January 5, 2022, the Appeals Council denied review (R. 1-3), rendering the ALJ's determination final.
This action followed.
II. SUMMARY OF RELEVANT MEDICAL EVIDENCE
A. Treating Providers
Plaintiff's primary care provider throughout the relevant period was Joan T. Fitten, N.P., at the Montefiore Comprehensive Family Care Center (CCFC). Plaintiff also received treatment from CFCC practitioners Bibi Ayesha, M.D. (a rheumatologist), Julianne K. Suojanen, D.O. (a psychiatrist), Nancy J. Faunt, L.C.S.W. (a psychotherapist), and Yu Hyon Kim, M.D. (an ophthalmologist). The relevant portions of the records from these providers are briefly summarized here.
Plaintiff began seeing N.P. Fitten for primary care in 2018. (See R. 307, 601, 1089, 1106.) Her diagnoses at that time were type 2 diabetes and high blood pressure, and with a history of depression. (R. 307.) She took Norvasc for her high blood pressure, Metformin for diabetes, and Lexapro for depression. (R. 311.) Between April 2018 and October 2020, plaintiff's body mass index (BMI) fluctuated between 31 and 36. (R. 305, 344, 372, 389, 405, 439, 452, 467, 1553.)
"Body Mass. Index (BMI) is a person's weight in kilograms (or pounds) divided by the square of height in meters (or feet). A high BMI can indicate high body fatness." Centers for Disease Control and Prevention, "Body Mass. Index (BMI)," https://www.cdc.gov/healthyweight/assessing/ bmi/index.html. A person with a BMI of 30 is categorized as obese. Centers for Disease Control and Prevention, "About Adult BMI," https://www.cdc.gov/healthyweight/assessing/bmi/ adultbmi/index.html (all internet citations last visited March 8, 2023).
On April 15, 2018, N.P. Fitten made a note of plaintiff's elevated depression and anxiety scores and "depressed mood," and recommended that she follow up with Dr. Suojanen. (R. 307, 310-11.) Plaintiff reported that her mother had recently had a stroke and was hospitalized. (R. 307.)
On April 30, 2018, plaintiff saw Dr. Suojanen, who refilled her prescription for Lexapro and recommended a weekly social worker appointment. (R. 1093.) Plaintiff reported that she had lost her job while her mother was hospitalized, and then tried to care for her mother at home, but her mother "refused to eat so she was readmitted." (Id.) Plaintiff's mood was "sad," and she was experiencing "excessive guilt" over being unable to care for her mother herself. (Id.)
On January 16, 2019, N.P. Fitten noted that plaintiff was positive for bilateral knee pain, aggravated by walking, and arthralgias (joint pain). (R. 392.) On July 12, 2019, N.P. Fitten observed that plaintiff had also developed alopecia areata. (R. 406.) Plaintiff reported that her depression was "stable." (Id.) She was still mourning the death of her mother, who had passed away on November 27, 2018 (R. 40), but had obtained a new job and was "feeling some what better." (R. 406.) However, she also reported back pain and intermittent "multiple site joint pain," for which she took Motrin. (R. 409.)
"With alopecia areata, the body's immune system attacks the hair follicles - causing hair loss." Mayo Clinic, "Stress Management," https://www.mayoclinic.org/healthy-lifestyle/stress-management/expert-answers/stress-and-hair-loss/faq-20057820.
The following week, on July 29, 2019, plaintiff saw Dr. Ayesha, complaining of polyarthralgia (pain in multiple joints). (R. 688.) Dr. Ayesha diagnosed fibromyalgia, osteoarthritis of the knees, and back pain, after performing a musculoskeletal exam revealing 14 out of 18 "tender points on palpation" and crepitus in both knees, but "no active synovitis" (inflamed joints). (R. 690-91.) Dr. Ayesha prescribed gabapentin, together with hydrotherapy for plaintiff's back pain. (R. 691.)
On September 3, 2019, plaintiff was examined by Dr. Kim after presenting with eye symptoms including "seeing floaters/flashes of light in both eyes for the past few months," as well as blurry vision. (R. 724.) Dr. Kim found a retinal break in plaintiff's left eye (R. 729), for which he prescribed laser retinoplexy, and "[a]ge-related nuclear cataract of both eyes," which was "[n]ot visually significant to patient." (R. 730.) Plaintiff's vision was 20/20 in the right eye and 20/25 in the left, with glasses. (R. 726.)
On September 9, 2019, plaintiff returned to Dr. Ayesha, who noted that her anti-CCP antibody test results were positive, observed Herberden's nodes on her hands, and diagnosed her with poorly-controlled rheumatoid (inflammatory) arthritis (R. 748-53), for which she prescribed leflunomide and diclofenac gel. (R. 753.) At that visit, plaintiff rated her pain level "9/10," and described it as intermittent, aggravated by activities, and relieved with rest. (R. 749.)
The anti-cyclic citrullinated peptide (anti-CCP) antibody test is "one of a group of blood tests primarily used to help pinpoint a diagnosis of rheumatoid arthritis." Mayo Clinic, "Rheumatoid factor," https://www.mayoclinic.org/tests-procedures/rheumatoid-factor/about/pac-20384800.
The following day, on September 10, 2019, plaintiff reported to N.P. Fitten that she was upset after being "terminated for her job working in a shelter" and was "considering taking legal[] action." (R. 436.)
On September 30, 2019, plaintiff told her psychiatrist, Dr. Suojanen, that she was "falling apart," referencing her new physical diagnoses, and reported fatigue, a "down" mood, and an "inability to enjoy much." (R. 1274.) She told Dr. Suojanen that she lost her job at the shelter after being "wrongly accused of activities she 'did not and would not do,'" and requested an increase in her Lexapro dosage. (R. 1275.) Dr. Suojanen increased her prescription from 20 mg to 30 mg a day, and advised that this dosage was above the FDA-approved daily maximum. (Id.) Plaintiff's mental status examination was unremarkable, except that her insight and judgment were only "fair" and her mood was "depressed and sad." (R. 1278.)
On October 14, 2019, plaintiff saw Dr. Suojanen again, and reported "some improvement in mood symptoms," such that she was "getting out of bed," but was "tired, too tired" to look for work. (R. 1312.) Plaintiff also stated that she was "not sure she can return to work based on both physical and emotional symptoms." (R. 1316.) Dr. Suojanen again referred her to a social worker for talk therapy, and revised her working diagnosis of major depressive disorder to "[a]djustment disorder with depressed mood." (R. 1313, 1316.)
Plaintiff met with Ms. Faunt the same day. (R. 1324.) During the diagnostic evaluation, Ms. Faunt found that plaintiff was experiencing "Moderate Severe" depression, as measured on a modified PHQ-9 scale, and "Severe" anxiety, as measured on the GAD-7 scale. (R. 1327.) Her mental status examination was unremarkable except that her insight and judgment were only "fair" and her mood was "angry, depressed and anxious." (R. 1327.) Plaintiff reported to Ms. Faunt that she was experiencing a lack of motivation and anger, that she was "sleep[ing] all day," and had a reduced appetite. (R. 1324.) She also reported that she was "very tired, struggling emotionally and physically," but was taking care of housing and medical appointments. (R. 1328.)
The Patient Health Questionnaire (PHQ) is a "diagnostic tool for mental health disorders used by health care professionals[.]" Health Resources & Services Administration, "Patient Health Questionnaire (PHQ) Screeners," https://www.hrsa.gov/behavioral-health/patient-health-questionnaire-phq-screeners. The General Anxiety Disorder-7 (GAD-7) is a "seven-question screening tool that identifies whether a complete assessment for anxiety is indicated." Health Resources & Services Administration, "GAD-7 (General Anxiety Disorder-7)," https://www.hrsa.gov/ behavioral-health/gad-7-general-anxiety-disorder-7.
On October 21, 2019, plaintiff visited Dr. Ayesha for a follow-up examination, reporting that she felt "much better" and that her joint pain had improved to "4/10." (R. 1337.) Dr. Ayesha noted that plaintiff's physical exam revealed a "[f]ull range of motion, no synovitis or effusions" (R. 1340), and her straight-leg raising (SLR) test was negative bilaterally. (Id.) During a followup with Dr. Ayesha on January 7, 2020, plaintiff reported that her pain was further improved, to "2-3/10," and Dr. Ayesha again found no synovitis. (R. 1414, 1417.)
Treating notes from Ms. Faunt and Dr. Suojanen over the following year, through October 2020, reflect that plaintiff persistently complained of depression and anxiety. (See, e.g., R. 1578, 1604, 1631, 1671.) On September 9, 2020, she told Ms. Faunt that she "slept all day yesterday" (R. 1676), but also reported that she had been "very busy and on the go." (Id.) Her PHQ-9 and GAD-7 depression scores at that visit were in the "Mild" range. (Id.) During this period, plaintiff also told Ms. Faunt that she frequently experienced difficulties interacting with others, including friends and family. (See, e.g., R. 1093, 1584, 1610.) For example, on September 9, 2020, plaintiff complained that her friends "haven't done anything for her since she broke her hand," and reported that she had "many people upset with her." (R. 1677.) On October 21, 2020, reported an argument with "her auto repair man," during which she cursed and was loud, and Ms. Faunt noted that plaintiff "reported arguing and telling people (friends and family) off" in "all of [their] sessions." (R. 1584.) Ms. Faunt observed that it was "typical" for plaintiff to curse and be loud in interactions. (Id.) During the same session, plaintiff reported that she had gotten a "tea cup dog," that she loved the dog, that she "[took] the dog everywhere with her" and that it was "keeping her busy." (Id.)
Plaintiff was seen in the emergency room on August 16, 2020, for an "acute nondisplaced fracture" of the left radius. (R. 1043.)
B. N.P. Fitten's Medical Source Statement
In a one-page letter dated November 12, 2020, N.P. Fitten provided a list of plaintiff's chronic medical conditions: rheumatoid arthritis, osteoarthritis of multiple joints, fibromyalgia, alopecia and vitiligo (unpigmented patches of skin), depression, and type 2 diabetes, and hypertension. (R. 1527.) N.P. Fitten wrote that these conditions "make[] it difficult[] for [plaintiff] to work and maintain a job due to possible exacerbations of the diseases and her symptoms." (Id.) She did not provide any supporting details or any function-by-function analysis.
C. Consultative Psychiatric Examiner Dr. Sebold
On March 14, 2020, Seth Sebold, Ph.D., conducted a consultative psychiatric examination of plaintiff at the request of the SSA. (R. 516-20.) Plaintiff told Dr. Sebold that she was "unable to work because of relapse, medical problems and inability to continue to work." (R. 516.) Plaintiff reported depressive symptoms, including a dysphoric mood, crying spells, irritability, fatigue, and social withdrawal. (R. 517.) She had been "extremely close" to her mother and reported that, after her mother passed away in November 2018, there was "a chaotic situation among other family members." (R. 517.) Plaintiff also reported that "[s]trained family relationships have led to depression symptoms," to the point where she did not want to leave the house. (Id.) With regard to her anxiety, plaintiff reported general stress due to unemployment, "being taken to court because of her housing," and "limited support." (Id.)
During the examination, plaintiff was cooperative and her "[m]anner of relating, social skills, [and] overall presentation were adequate." (R. 517.) During the mental status exam, plaintiff "did a serial 3's task with two errors . . . but the other responses were accurate." (R. 518.) Dr. Sebold found plaintiff's recent and remote memory "mildly impaired," though her insight and judgment were "[g]ood." (R. 518.) Plaintiff "could recall three out of three objects and one out of the three objects after several minutes." (Id.)
Dr. Sebold found plaintiff had no limitations when it came to understanding, remembering, and applying either simple or complex directions and instructions; no limitations in using reason and judgment to make work-related decisions; "mild to moderate" limitations in regulating emotions, controlling behavior, and maintaining well-being; and mild limitations in interacting adequately with supervisors, coworkers, and the public. (R. 519.) He also found that these limitations "appear[ed] to be consistent with psychiatric problems, but in itself, not significant enough to interfere with [plaintiff's] ability to function on a daily basis." (Id.)
D. Consultative Medical Examiner Dr. Reyes
On March 14, 2020, Luz Reyes, M.D., conducted a consultative medical examination of plaintiff at the request of the SSA. (R. 522-26.) Plaintiff reported that her chief complaints were fibromyalgia, alopecia areata, polyarthralgia, autoimmune disorder, type 2 diabetes, hypertension, and depression. (R. 522.) Dr. Reyes found that she had full range of motion in her elbows, forearms, wrists, and ankles, but limited hip flexion and extension, and limited interior and exterior hip rotation. (R. 524-25.) Plaintiff's lumbar spine also showed a limited range of motion. (Id.) Plaintiff's SLR test was negative bilaterally. (Id.) Dr. Reyes evaluated plaintiff for fibromyalgia and found "[b]ilateral shoulder pains, bilateral hip pains, and bilateral knee pains," as well as "6 tender points." (R. 525.) Plaintiff had full (5/5) strength in the upper and lower extremities, full grip strength bilaterally, and intact hand and finger dexterity. (Id.)
Dr. Reyes concluded that plaintiff had "moderate limitations in standing, walking, and climbing secondary to bilateral hip and knee pains, generalized weakness associated with rheumatoid arthritis, and polymyalgia. She has moderate limitation in carrying and lifting secondary to bilateral shoulder pain." (R. 525.)
E. State Agency Medical Reviewers
On March 30, 2020, A. Saeed, M.D., reviewed plaintiff's medical records, including Dr. Reyes's report. (R. 102-05.) Based on that review, Dr. Saeed opined that plaintiff could sit for six hours a day; stand or walk for two hours; occasionally lift or carry ten pounds; perform unlimited pushing and pulling; but only occasionally climb ramps, stairs, ladders, ropes, and scaffolds, balance, stoop, kneel, crouch, and crawl. (R. 103-04.) Dr. Saeed also opined that plaintiff had limitations in reaching overhead due to decreased range of movement in her shoulders. (R. 104.) On July 20, 2020, at the reconsideration stage, A. Vinluan, M.D., reviewed plaintiff's medical records and agreed with Dr. Saeed's assessment. (R. 116-18.)
F. State Agency Psychiatric Reviewers
On April 13, 2020, O. Fassler, Ph.D., reviewed plaintiff's mental health records, including Dr. Sebold's report. (R. 100-01.) Dr. Fassler evaluated plaintiff's mental impairments using the psychiatric review technique (PRT) mandated by 20 C.F.R. § 404.1520a. (R. 100-01.) Dr. Fassler opined that plaintiff had mild limitations in understanding, remembering, and applying information; interacting with others; and concentration, persistence, and maintaining pace, but no limitations in adapting and managing herself. (R. 101.) On July 16, 2020, M. D'Ortona, Psy.D., reviewed plaintiff's mental health records at the reconsideration stage, and opined that plaintiff had mild limitations in all four functional areas. (R. 113-14.)
The PRT requires the Commissioner to "rate the degree of [the claimant's] functional limitation based on the extent to which [her] impairment(s) interferes with [her] ability to function independently, appropriately, effectively, and on a sustained basis." 20 C.F.R. § 404.1520a(c)(2). The degree of functional limitation is rated in "four broad functional areas," including the claimant's ability to: (i) "[u]nderstand, remember, or apply information"; (ii) "interact with others"; (iii) "concentrate, persist, or maintain pace"; and (iv) "adapt or manage [her]self." Id. § 404.1520a(c)(3). The degree of limitation in each area is rated on a five-point scale: "None, mild, moderate, marked, and extreme." Id. § 404.1520a(c)(4).
III. THE HEARING
At the hearing, plaintiff testified that she unable to work due to her rheumatoid arthritis, which made it difficult to get out of bed or leave the house, and which caused fatigue and pain in her hands. (R. 56-59.) She told the ALJ that the death of her mother exacerbated her depression which, in turn, affected her physical health. (R. 86.) Plaintiff also testified about her alopecia, her cataracts, and the "hole in [her] retina," which sometimes caused pain in her eyes and blurry vision. (R. 74-76.) She added that the gabapentin that she took for her rheumatoid arthritis caused stomach problems. (R. 77.) Plaintiff testified that for the last two years she had rarely left the house and had become a "loner." (R. 64.) Asked about Ms. Faunt's September 9, 2020 treatment note (in which plaintiff referred to herself as "very busy and on the go"), she said that "it's referring to before these two years." (Id.)
Although plaintiff initially testified that her employment ended due to her health (R. 38), she acknowledged, after questioning by the ALJ, that she was terminated from her employment due to allegations that she sexually harassed a client. (R. 39-41.) She further acknowledged that she had been looking for work up until "maybe like less than a month" before the hearing, and stated that she stopped looking "[o]nce she started getting worse." (R. 43.)
As to her past employment, plaintiff told the ALJ she worked for various social services organizations where she assisted children and families in shelters. (R. 35-54.) These were all clientfacing roles. (Id.) Plaintiff testified that she was last employed as a house aide at a domestic violence shelter, until August 23, 2019. (R. 35.) Her duties included working with homeless families to help them secure housing and benefits, help them find "supportive groups," and make referrals to any services the family needed, including mental health. (Id.)
VE Vasisth then testified. The VE classified plaintiff's past positions as: (1) Case Manager, DOT 195.167-050, which is highly skilled work with an SVP of 8, and which was usually sedentary, though plaintiff performed it at the level of light work (R. 88); (2) a "composite" of Intake Counselor, DOT 195.107-010, and of Substance Abuse Counselor, DOT 045.107-058, the former being skilled (SVP 7), and the latter being highly skilled (SVP 8), and both of which were usually sedentary, but performed at the level of light work (id.); (3) Employment Training Specialist, DOT 094.224-022, which is skilled work (SVP 6), and which was usually light work, and which was performed as such (R. 88-89); and (4) Casework Supervisor, DOT 195.137-010, also skilled work (SVP 7), and sedentary. (R. 89.)
"'SVP' stands for 'specific vocational preparation,' and refers to the amount of time it takes an individual to learn to do a given job . . . SVP uses a scale from 1 to 9 and the higher the SVP number the greater the skill required to do the job." Garcia v. Comm'r of Soc. Sec., 2022 WL 4234555, at *9 n.18 (S.D.N.Y. Sept. 14, 2022) (quoting Urena-Perez v. Astrue, at *20 (S.D.N.Y. Jan. 6, 2009) (citations omitted), report and recommendation adopted as modified, 2009 WL 1726212 (S.D.N.Y. June 18, 2009)), amended in part on other grounds, 2022 WL 17103621 (S.D.N.Y. Nov. 22, 2022). 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).
The ALJ asked VE Vasisth to determine whether plaintiff's past work could be performed by a hypothetical individual who is:
of the same age, education, and vocational background as [plaintiff]. However, in the hypothetical, individual has the following limitations. The individual is limited to sedentary work. The individual cannot work on ladders, ropes, or scaffolds. [INAUDIBLE] occasionally and some stairs. They can occasionally balance, stoop,
crouch, crawl, and kneel. They are limited to no more than frequent fingering feeling and handling bilaterally. They cannot work on unprotected heights or around dangerous machinery.(R. 89.) VE Vasisth opined that the hypothetical claimant could perform plaintiff's past jobs as a Casework Supervisor or a Case Manager. (R. 90-91.) The ALJ then asked the VE whether the same hypothetical individual, who was additionally limited to only occasional handling, fingering, and feeling bilaterally, could perform those two positions. (R. 91.) The VE opined that the Case Manager position would be "eliminated." (Id.) Finally, when the ALJ asked whether an additional limitation of "no more than occasional interaction with the general public" would eliminate both positions, the VE responded, "yes, both." (Id.)
Under questioning from plaintiff's counsel, VE Vasisth testified that an individual working a full time (40-hour) workweek can be off-task no more than 10% of the time. (R. 92.) "More than 10% on a sustained basis would eliminate all competitive employment." (Id.) The VE further agreed that if a claimant had "moderate" limitations in regulating emotions, controlling behavior, and maintaining well-being, "that would take them off task" for more than 10% of the work day. (R. 93-94.)
IV. THE ALJ'S DECISION
In his Decision, issued on February 22, 2021, the ALJ found that plaintiff met the insured status requirements of the Act through December 31, 2024 (R. 15), then undertook the five-step sequential evaluation process mandated by 20 C.F.R. § 404.1520(a)(4)(i)-(v).
At step one, see 20 C.F.R. § 404.1520(a)(4)(i), the ALJ found that plaintiff had not engaged in substantial gainful activity since August 22, 2019. (Id.)
At step two, see 20 C.F.R. § 404.1520(a)(4)(ii), the ALJ found that plaintiff had three severe physical impairments: rheumatoid arthritis, fibromyalgia, and degenerative joint disease in the bilateral knees. (R. 16.) The ALJ also found that plaintiff had several non-severe medical impairments: hypertension, diabetes, alopecia, and an acute non-displaced left arm fracture. (Id.) Similarly, he found plaintiff's major depressive disorder "medically determinable" but non-severe, because it did not "cause more than minimal limitation" in her ability to "perform basic mental work activities[.]" (Id.) In support of that finding, the ALJ analyzed plaintiff's limitations in each of the four "broad functional areas of mental functioning" described in 20 C.F.R. § 404.1520a(c)(3) (known as the "paragraph B criteria") and found that, for purposes of step two, plaintiff had "mild limitations" in all areas. (R. 16-17.)
If a claimant's limitations are rated "none" or "mild" in all four areas, her mental impairment will generally be found "not severe," meaning that it does not cause "more than a minimal limitation in [the claimant's] ability to do basic work activities." 20 C.F.R. § 404.1520a(d)(1).
At step three, see 20 C.F.R. § 404.1520(a)(4)(iii), the ALJ determined that plaintiff did not have any impairment or combination of impairments that met or medically equaled the severity of any impairment listed in 20 C.F.R. part 404, subpart P, appendix 1. (R. 17.) As the ALJ found all of plaintiff's mental impairments non-severe, the ALJ did not specifically analyze Listing 12.04 (depressive, bipolar, and related disorders). (Id.)
Before proceeding to step four, the ALJ determined plaintiff's residual functional capacity (RFC), that is, the "most [a claimant] can still do despite [her] limitations." 20 C.F.R. § 404.1545(a)(1). In developing plaintiff's RFC, the ALJ considered plaintiff's testimony; her medical records, including treatment notes from N.P. Fitten, Ms. Faunt, and Dr. Ayesha; objective medical evidence, including bilateral hand and knee x-rays; the opinions of consultative examiners Drs. Reyes and Sebold; the opinions of state agency consultants Drs. Saeed, Vinluan, D'Ortona, and Fassler; and the letter from N.P. Fitten. (R. 18-21.) The ALJ "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence" in the record (R. 18), and found that plaintiff's impairments could be expected to cause the symptoms she alleged, but that her statements regarding the intensity, persistence, and limiting effects of those symptoms were "not entirely consistent with the medical evidence and other evidence in the record[.]" (R. 20.)
The ALJ then evaluated each medical opinion and prior administrative finding in the record. (R. 20.) He found the opinion of consultative medical examiner Dr. Reyes to be only "somewhat persuasive," because the "moderate" limitations were "not defined" and "the carrying and lifting restrictions" were "based on subjective reports of shoulder pain" that were not supported by the "overall objective evidence" and were inconsistent with plaintiff's "full strength in the bilateral upper and lower extremities." (Id.) The ALJ agreed that plaintiff had "limitations with standing and walking secondary to bilateral hip and knee pain." (Id.)
The ALJ similarly found the opinions of state agency medical consultants Drs. Saeed and Vinluan "somewhat persuasive," writing that "the sedentary limitations are consistent with the overall record, the claimant's testimony and consistent allegations of pain, and the opinion of consultative internist Dr. Reyes." (R. 20.) However, the ALJ concluded that the shoulder limitations were unsupported, since the treatment records did not show "any particular limitations with regard to the claimant's shoulders besides the consultative physical examination." (R. 20-21.)
Consultative psychiatrist examiner Dr. Sebold's opinion (that claimant had no limitations or mild limitations in most functional areas, but "mild-to-moderate limitations regulating emotions, controlling behavior, and maintaining well-being") was "generally persuasive." (R. 21.) The ALJ explained that Dr. Sebold "did not define the mild or mild-to-moderate limitations" and that, "while the record supports the claimant to have issues regarding regulating emotions," it also "consistently states" that plaintiff had interpersonal relationships, got a new dog, and was "very active" and "busy." (Id.) The ALJ concluded that the record was "consistent with the claimant having mild limitations" in this functional area, particularly given "the opinion of the state medical consultants and [N.P.] Fitten wherein the claimant was very active, and is busy." (Id.)
State agency psychological consultant Dr. D'Ortona's opinion (that plaintiff had mild limitations in all four broad functional areas) was "persuasive" because the record supported these findings, namely the PHQ-9 and GAD-7 tests, plaintiff's testimony, and the consultative examination and state medical consultant's findings that plaintiff "cooks, cleans, does laundry and shopping, and showers and dresses herself," and is "active and tak[es] care of a new dog." (R. 21 (citing R. 516-21, 529-30).)
The ALJ found state agency psychological consultant Dr. Fassler's opinion "mostly persuasive" because it was consistent with the opinion of Dr. D'Ortona and the overall record, but noted that, while Dr. Fassler found that plaintiff had mild limitations in only three areas of mental function - but no limitations in adapting or managing oneself - the ALJ himself found that plaintiff also "has mild limitations in adapting or managing oneself shown by a score of 9 on PHQ-9 and GAD-7 tests which shows mild depression." (R. 21.)
Lastly, the ALJ assigned "no persuasiveness" to N.P. Fitten's treating source statement (R. 1527), which was "inherently neither valuable nor persuasive." (R. 21.) The ALJ nevertheless agreed with N.P. Fitten's opinion "that the claimant's request for a home health attendant is not warranted because the claimant is very active and goes out a lot." (R. 21 (citing R. 1633-38).) The ALJ found that this opinion (which does not appear in N.P. Fitten's notes, but was relayed by plaintiff to Ms. Faunt during a September 2020 session and mentioned in Ms. Faunt's treatment notes) was "consistent and supported by the claimant's testimony and the overall above-cited record." (Id.)
Since "[t]he ultimate finding of whether the claimant is disabled is reserved to the agency," Schillo v. Kijakazi, 31 F.4th 64, 70 (2d Cir. 2022), an ALJ need not - indeed, should not - accord any weight to a medical opinion couched solely in those terms. See 20 C.F.R. § 404.1527(d) ("We are responsible for making the determination or decision about whether you meet the statutory definition of disability....A statement by a medical source that you are 'disabled' or 'unable to work' does not mean that we will determine that you are disabled.")
The ALJ concluded that plaintiff had the RFC to perform sedentary work, as defined in 20 C.F.R. § 404.1567(a), except that she "cannot climb ladders, ropes, or scaffolds; can occasionally use ramps or stairs, balance, stoop, crouch, crawl, and kneel; frequently finger, feel, and handle bilaterally; and cannot work at unprotected heights or around dangerous machinery." (R. 18.)
The ALJ did not include any mental limitations in his RFC formulation. Moreover, although he discussed the evidence concerning plaintiff's mental impairments at step two, and alluded to portions of that evidence from time to time in his RFC analysis, the ALJ did not expressly consider whether plaintiff's RFC should incorporate any mental limitations, and did not explain why no such limitations were included. Instead, he summed up by stating, "[b]ased on the foregoing, the undersigned finds the claimant has the above residual functional capacity assessment, which is supported by the above-cited objective medical evidence, physical and mental examinations, and the claimant's testimony." (R. 21.)
At step four, on the basis of his RFC determination and the VE's testimony, the ALJ found that plaintiff could perform her past relevant work as a Casework Supervisor (DOT 195.137-010, SVP 7) or Case Manager (DOT 195.167-050, SVP 8). (R. 22.) Because the ALJ found that plaintiff could perform her past work, he did not proceed to step five. (R. 22.) The ALJ therefore found that plaintiff was not disabled, as defined in the Act, from August 22, 2019, through February 22, 2021, the date of the Decision. (Id.)
According to the Dictionary of Occupational Titles, a Casework Supervisor "[s]upervises and coordinates activities of social-service-agency staff and volunteers," "coordinates activities of staff in providing counseling services to assist clients with problems of emergency or crisis nature," "[c]ounsels clients individually or in groups on planned or experimental basis and in emergencies," and "[r]epresents agency in community or in interagency activities," among other client-facing and supervisory activities. U.S. Department of Labor, Dictionary of Occupational Titles, 195.137-010, 1991 WL 671580 (4th ed. 1991). The DOT code for Case Manager provided by the VE and recited in the Decision (195.167-050) does not "presently exist." Arthur v. Saul, 2020 WL 6381136, at *11 n.6 (E.D. Va. June 3, 2020), report and recommendation adopted, 2020 WL 5701885 (E.D. Va. Sept. 24, 2020). "The correct DOT code for the case manager appears to be 195.107-010, which is listed as 'caseworker.'" Id. A Caseworker "[c]ounsels and aids individuals and families requiring assistance of social service agency" and "[i]nterviews clients with problems, such as personal and family adjustments, finances, employment, food, clothing, housing, and physical and mental impairments to determine nature and degree of problem." Additionally, a Caseworker "[c]ounsels client individually, in family, or in other small groups regarding plans for meeting needs, and aids client to mobilize inner capacities and environmental resources to improve social functioning." Dictionary of Occupational Titles, 195.107-010, 1991 WL 671569.
V. THE PARTIES' POSITIONS
Plaintiff identifies five grounds for remand. First, she contends that the ALJ erred at step two in finding that plaintiff's mental impairments were not severe, given Dr. Sebold's opinion that she had "mild-to-moderate limitations" in one functional area, and that he improperly mischaracterized the record in order to discount Dr. Sebold's opinion. Pl. Mem. (Dkt. 16) at 1214. Second, she asserts that even if plaintiff's mental impairments were non-severe, the ALJ erred in failing to account for them in developing her RFC. Id. at 14-15. Third, she argues that the ALJ similarly failed to account for plaintiff's shoulder pain, synovitis in multiple joints, and obesity in developing her RFC. Id. at 15-18. Fourth, plaintiff contends that the ALJ's credibility analysis was flawed. Id. at 18-21. Lastly, she argues that the ALJ erred at step four in finding that plaintiff could perform her past relevant work, because that work was both highly skilled and "client facing," such that even mild limitations in regulating emotions, controlling behavior, and interacting with others would interfere with her ability to remain on task sufficiently to perform that work. Id. at 21-24. See also Pl. Reply Mem. (Dkt. 21) at 2 (arguing that the ALJ implicitly found that plaintiff would not be off-task more than 10% of the time but did not provide "proper explanation of the basis of his findings and assessments" on this issue, which "must be based on evidence").
The Commissioner contends that the ALJ's step two finding and RFC are supported by substantial evidence. The Commissioner points out that both Dr. Fassler and Dr. D'Ortona found that plaintiff's mental impairments were non-severe, while Dr. Sebold, who characterized them as "mild to moderate," opined that they would not interfere with her ability to function. Def. Mem. at 8-14. The Commissioner adds that the ALJ's statement that he considered all of plaintiff's "medically determinable impairments" showed that he took plaintiff's non-severe impairments into account when developing the RFC. Id. at 14-18. Further, according to the Commissioner, the ALJ properly resolved evidentiary conflicts in the record to determine that plaintiff could perform sedentary work with no mental accommodations, and argues that plaintiff offered no evidence that her obesity should impact her RFC. Id. at 18-26. Lastly, the Commissioner argues that the ALJ properly relied on evidence of plaintiff's activities of daily living to discount her subjective statements concerning the degree of her disability, and urges this Court to reject plaintiff's "invitation to reassess the evidence contrary to the substantial evidence standard." Id. at 26-30.
In my view, the ALJ did not err at step two, nor (at any step) with respect to plaintiff's physical limitations or credibility. However, after a careful review of the record, I conclude that, on the facts of this case, the ALJ failed to adequately consider plaintiff's "mild" mental impairments when formulating her RFC and when determining, at step four, that she was capable of performing past relevant work that was highly skilled, that required significant client contact, and that could not be performed by a claimant who was off-task more than 10% of the time. I therefore recommend that this case be remanded to the Commissioner for further proceedings.
VI. ANALYSIS
In considering the parties' motions, I have reviewed the entire administrative record (totaling 1,680 pages) and applied the familiar and frequently reiterated standards used by federal district courts to review decisions of the Commissioner.
A court may set aside an ALJ's decision only if it is based upon legal error or if the ALJ's factual findings are not supported by substantial evidence. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Conyers v. Comm'r of Soc. Sec., 2019 WL 1122952, at *11-13 (S.D.N.Y. Mar. 12, 2019); Calvello v. Barnhart, 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008).
"Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). "In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Longbardi v. Astrue, 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009) (citing Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)). "However, the reviewing court's task is limited to determining whether substantial evidence exists to support the ALJ's fact-finding; it may not reweigh that evidence or substitute its judgment for that of the ALJ where the evidence is susceptible of more than one interpretation." Dubois v. Comm'r of Soc. Sec., 2022 WL 845751, at *4 (S.D.N.Y. Mar. 21, 2022). "[O]nce an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (emphasis in original) (quotation marks omitted). Thus, the substantial evidence standard is "a very deferential standard of review." Id.
"Even if the Commissioner's decision is supported by substantial evidence," however, "legal error alone can be enough to overturn the ALJ's decision." Ellington v. Astrue, 641 F.Supp.2d 322, 328 (S.D.N.Y. 2009); accord Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). Therefore, legal error will result in remand unless "application of the correct legal principles to the record could lead only to the same conclusion," rendering the error harmless. Garcia v. Berryhill, 2018 WL 5961423, at *11 (S.D.N.Y. Nov. 14, 2018) (quoting Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)).
A. The ALJ's Step Two Finding Was Supported By Substantial Evidence
Only Dr. Sebold opined that plaintiff's mental limitations exceeded the "mild" level in any area, and he stated only that she had "mild to moderate" limitations in regulating emotions, controlling behavior, and maintaining well-being. (R. 519.) The state agency psychiatric reviewers (who, unlike Dr. Sebold, had access to plaintiff's treatment records) found that plaintiff had either no limitations or mild limitations in all four of the broad functional areas of mental functioning described in 20 C.F.R. § 404.1520a(c)(3). (R. 101, 113.)
Further, although plaintiff told Dr. Sebold that she experienced crying spells, social withdrawal, and "not wanting to leave the house" (R. 517) - and told the ALJ at the hearing that she was a "loner" who had rarely left the house for the past two years (R. 64) - other evidence in the record showed that plaintiff had relationships with neighbors and friends (R. 1584, 1676), and that she kept "busy," including with her new dog, which she took "everywhere with her." (R. 1584.) The ALJ was entitled and indeed required to consider all of this evidence. Consequently, under the "very deferential" substantial evidence standard, Brault, 683 F.3d at 448, this Court cannot disturb the ALJ's step two determination. See Bonet ex rel. T.B. v. Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013) (summary order) ("[W]hether there is substantial evidence supporting the [claimant's] view is not the question here; rather, we must decide whether substantial evidence supports the ALJ's decision.") (emphasis in original); Blalock v. Berryhill, 2018 WL 6332896, at *14 (S.D.N.Y. Nov. 8, 2018) ("[T]he existence of contrary evidence does not negate substantial evidence supporting the ALJ's decision.").
B. The ALJ Failed Adequately to Consider Plaintiff's Non-Severe Mental Limitations When Formulating Her RFC and Questioning the Vocational Expert
An RFC determination must be based on all of the relevant medical and other evidence in the record, including the plaintiff's credible testimony, the objective medical evidence, and medical opinions from treating and consulting sources. 20 C.F.R. § 404.1545(a)(3). When formulating a claimant's RFC, the ALJ must "consider" not only her severe impairments, but her non-severe impairments as well. 20 C.F.R. § 404.1545(a)(2); see also Policy Interpretation Ruling Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184, at *2, *5 (S.S.A. July 2, 1996).
This does not necessarily mean that the ALJ "must include a specific limitation in the RFC corresponding to each of the claimant's non-severe impairments." DuBois, 2022 WL 845751, at *5. Nonetheless, it is possible that, "in combination with limitations imposed by an individual's other impairments, the limitations due to . . . a 'not severe' impairment may prevent an individual from performing past relevant work or may narrow the range of other work that the individual may still be able to do." SSR 96-8p, 1996 WL 374184, at *5. Moreover, "[i]n the world of work, losses of intellectual and emotional capacities are generally more serious when the job is complex." Titles II & XVI: Capability to Do Other Work - The Medical-Vocational Rules As A Framework for Evaluating Solely Nonexertional Impairments, SSR 85-15, 1985 WL 56857, at *4 (S.S.A. 1985). Thus, in formulating a claimant's RFC, the ALJ must consider even non-severe impairments that would not, standing alone, require the analysis to proceed past step two. DuBois, 2022 WL 845751, at *5; see also Amparo v. Comm'r of Soc. Sec., 2022 WL 3084482, at * 10 (S.D.N.Y. July 19, 2022) (ALJ's assessment at step two that plaintiff's mental impairments were non-severe "did not relieve the ALJ of the requirement to discuss Amparo's mental health impairments in the RFC portion of her decision"), report and recommendation adopted, 2022 WL 3084380 (S.D.N.Y. Aug. 3, 2022)); Rookey v. Comm'r of Soc. Sec., 2015 WL 5709216 at *3 (N.D.N.Y. Sept. 29, 2015) (reversing and remanding where the ALJ "fail[ed] to consider [the plaintiff's] non-severe mental impairments in determining his RFC").
Adequate consideration of a plaintiff's non-severe mental impairments becomes particularly important where the disability determination turns upon her ability to perform skilled or highly skilled work. See, e.g., Del Priore v. Comm'r of Soc. Sec., 2019 WL 4415279, at *3 (E.D.N.Y. Sept. 16, 2019) (remanding where the ALJ found that plaintiff could perform his past relevant work as an airport operations duty manager without adequately considering whether his "mild" mental limitations would impact his ability to perform that "highly skilled" work); Rousey v. Comm'r of Soc. Sec., 285 F.Supp.3d 723, 741 (S.D.N.Y. 2018) (remanding where ALJ failed to explain "why he concluded that plaintiff's amnestic disorder, NOS did not affect the mental demands of her past semi-skilled and skilled work").
The requirement that the ALJ "consider" a plaintiff's non-severe mental impairments in formulating her RFC cannot be discharged by the paragraph B analysis used at step two to rate the severity of those impairments. Garcia, 2022 WL 4234555, at *14 ("the ALJ's assessment at step two did not relieve him of the requirement to discuss Plaintiff's mental health impairments in formulating the RFC"); Garcia v. Comm'r of Soc. Sec., 2022 WL 970566, at *8 (S.D.N.Y. Mar. 31, 2022) ("To the extent the Commissioner suggests that a review of medical evaluations for step two purposes obviates the need to consider them later in determining the claimant's RFC, that is incorrect[.]"); David Q. v. Comm'r of Soc. Sec., 2022 WL 806628, at *5 (W.D.N.Y. Mar. 17, 2022) (step-two analysis and RFC determination are "analytically distinct").
Similarly, it is insufficient merely to refer to evidence that may bear on the plaintiff's mental functioning, such as his "activities of daily living and course of treatment." Garcia, 2022 WL 4234555, at *14. Such references are "insufficient to explain how the ALJ considered Plaintiff's mental impairments or the basis for his decision not to include any mental impairments in Plaintiff's RFC." Id.; see also Rousey, 285 F.Supp.3d at 741 (remanding where "the ALJ made two references to plaintiff's psychological condition in discussing her RFC but did not explain how the RFC finding included consideration of plaintiff's nonsevere mental impairments"). If the ALJ concludes that the plaintiff's mental impairments do not require any RFC accommodation, he should clearly explain why. See Laura Anne H. v. Saul, 2021 WL 4440345, at *11 (N.D.N.Y. Sept. 28, 2021) ("The ALJ may find that Plaintiff's mental impairments are inconsequential and, thus, reject the need to incorporate mental limitations into the RFC - but he must explain his reasoning for doing so."); Dixon v. Astrue, 2011 WL 4478493, at *12 (D.N.J. Sept. 26, 2011) (ALJ erred when he neglected to factor Plaintiff's non-severe depression into his RFC analysis and "failed to offer a reason for leaving Plaintiff's depression out of that analysis").
By the same token, when posing hypotheticals to the VE, the ALJ should inquire about even "mild" limitations on mental functioning, particularly when the issue is whether the plaintiff can perform skilled past work. See Rousey, 285 F.Supp.3d at 742 (ALJ should have asked the VE to "assume non-severe mental impairments including mild limitations in concentration, persistence or pace," because plaintiff's "non-severe anxiety and memory impairments may have affected the vocational expert's conclusion that [she] could do her past skilled and semi-skilled sedentary work"); Dixon, 2011 WL 4478493 at *12 (although plaintiff's depression was not severe, ALJ erred in failing to include any depression-related impairments in the hypothetical posed to vocational expert).
Here, the ALJ expressly found that plaintiff had mild limitations across all four areas of mental functioning - not just at step two but also in his RFC analysis, where he found the opinions of Drs. Sebold, D'Ortona and Fassler "persuasive" (or mostly so) (R. 21) - but then made no specific findings about whether these limitations required any restrictions in her RFC, and did not ask the VE whether those mild limitations would impact her ability to do her highly-skilled past relevant work. (See R. 89-92.) Thus, as in Rousey, the ALJ formulated an RFC that "did not include any mental limitations" but failed to "offer any explanation for omitting those mental impairments from his RFC finding." 285 F.Supp.3d at 740.
The ALJ's failure to adequately consider plaintiff's mental impairments when formulating her RFC and questioning the VE is particularly significant in light of the nature of her past relevant work - which was not only highly skilled but also intensely interpersonal - and the evidence concerning the nature of plaintiff's mental limitations. The record as a whole reflects that plaintiff's social functioning deteriorated during the relevant period. For example, on October 21, 2020, her therapist, Ms. Faunt, noted that plaintiff had "reported arguing and telling people (friends and family) off" "in all [their] sessions"; that it was "typical" for plaintiff to curse and be loud in interactions; and that plaintiff "continues to state that she has many people upset with her and they no longer talk to her." (R. 1584.) Mr. Faunt then observed that, "based on the way [plaintiff] reports she communicates, her choice in friends, making friendships too fast aren't helping [her] engage in healthy relationships." (Id.) The ALJ, however, did not discuss this evidence, or consider whether plaintiff's demonstrated difficulties in interacting with others and managing herself - even if "mild" for paragraph B purposes - would impact her ability to hold a client-facing Case Manager or Casework Supervisor position. (R. 22.) "Thus, the ALJ failed to engage in the type of more detailed assessment that an ALJ is required in reaching an RFC determination." Garcia, 2022 WL 4234555, at *14.
C. The Error Was Not Harmless
"Although an ALJ's failure to mention non-severe impairments in formulating the RFC may be considered harmless error 'absent evidence that these impairments contributed to any functional limitations'," Amparo, 2022 WL 3084482, at *11 (quoting Ferreras-Matos v. Comm'r of Soc. Sec., 2021 WL 7287630, at *15 (S.D.N.Y. Nov. 15, 2021), report and recommendation adopted sub nom. Matos v. Comm'r of Soc. Sec., 2022 WL 292921 (S.D.N.Y. Jan. 31, 2022)), that is not the case, where, as here, the ALJ found mild limitations in all four areas of mental functioning and concluded - without asking the VE about those mild limitations - that she was capable of performing her skilled, client-facing past work as a Case Manager or Casework Supervisor, which would not permit her to be off-task more than 10% of the time. See Garcia, 2022 WL 4234555, at *14 ("consideration of Plaintiff's metal impairments on her RFC could have impacted the ALJ's determination that she was able to perform her past work, which was semiskilled"); Lorraine K. v. Kijakazi, 2022 WL 1115456, at *3 (W.D.N.Y. Apr. 14, 2022) (even semiskilled work, with an SVP of 4, "may be inconsistent with mild limitations in mental functioning") (quoting Wagner v. Commissioner, 2020 WL 1853496, at *12 (W.D.N.Y. April 13, 2020). Moreover, the ALJ did not proceed to step five, and consequently did not determine whether plaintiff was capable of performing any other work in the national economy. See 20 C.F.R. § 404.1520(a)(4)(v).
Remand is therefore required so that the ALJ can "adequately consider Plaintiff's mental impairments in formulating an RFC determination," taking into account the skill level required to perform her past relevant work, Garcia, 2022 WL 4234555, at *14, and so that the ALJ can reformulate his hypothetical questions to the VE, and - if necessary - perform a step five analysis.
D. Plaintiff's Remaining Arguments
Plaintiff's contention that the ALJ failed to account for her shoulder pain, synovitis, and obesity in her RFC, see Pl. Mem. at 15-18, is not well founded. The ALJ was correct that only Dr. Reyes prescribed shoulder limitations, and that she did so based upon plaintiff's subjective report rather than objective medical evidence. Dr. Ayesha's treating notes showed that plaintiff had no synovitis and that her joint pain improved significantly once she was diagnosed with rheumatoid arthritis and put on an appropriate medication. (R. 1340, 1414-17.) Although plaintiff's BMI fluctuated between 31 and 36, in the "obese" range, there is no evidence in plaintiff's treatment records, and no medical opinion, that her obesity exacerbated any of her conditions. Thus, the ALJ's findings as to these conditions was supported by substantial evidence in the record.
Nor did the ALJ err in finding that plaintiff's statements regarding the intensity, persistence, and limiting effects of her symptoms were "not entirely consistent with the medical evidence and other evidence in the record[.]" (R. 18.) An ALJ is not obliged to "accept [a claimant's] subjective complaints without question," Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010), particularly in the face of "[g]enuine conflicts in the evidence," which are "for the Commissioner to resolve." Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). Here, there were several genuine conflicts between plaintiff's hearing testimony and the underlying medical record, including, for example, whether plaintiff had difficulty getting out of bed and had rarely left her house for the two years leading up to the hearing, as she testified (R. 56-59, 64), or whether her joint pain had substantially resolved, as she told Dr. Ayesha in late 2019 and early 2020 (R. 1337, 1414), and she was "very busy and on the go," as she reported to Ms. Faunt a few months prior to the hearing. (R. 1676.) Notwithstanding plaintiff's lengthy work history, the ALJ was entitled to note these and other conflicts and, on that basis, to find her subjective reports not entirely credible.
VII. CONCLUSION
For the reasons set forth above, I recommend, respectfully, that plaintiff's motion (Dkt. 15) be GRANTED, that the Commissioner's motion (Dkt. 19) be DENIED, and that this action be REMANDED for further proceedings.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Mary Kay Vyskocil at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Vyskocil. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).