Opinion
20cv7612 (VEC) (DF)
03-01-2022
EDELIAS RODRIGUEZ OTERO, Plaintiff, v. KILOLO KIJAKASI, Acting Commissioner of Social Security, [1] Defendant.
REPORT AND RECOMMENDATION
DEBRA FREEMAN, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE VALERIE CAPRONI, U.S.D.J.:
In this Social Security Action, which has been referred to this Court for a report and recommendation, plaintiff Edelias Rodriguez Otero (“Plaintiff”) seeks review of the final determination of defendant Commissioner of the Social Security Administration (“SSA”) (“Defendant, ” or the “Commissioner”), denying Plaintiff Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”) on the grounds that, for the relevant period, Plaintiff's impairments did not render him disabled under the Act. Currently before the Court is Plaintiff's motion for judgment on the pleadings reversing the Commissioner's decision (Dkt. 25) and Defendant's cross-motion for judgment on the pleadings affirming the Commissioner's decision (Dkt. 30). For the reasons set forth below, I respectfully recommend that Plaintiff's motion be granted, and Defendant's motion be denied, and that the case be remanded for further proceedings.
The background facts set forth herein are taken from the SSA Administrative Record (Dkt. 15) (referred to herein as “R.” or the “Record”).
Plaintiff filed an application for SSI on October 26, 2017, alleging a disability onset date of January 1, 2008, due to depression and his HIV positive status. (R., at 1519-27, 1555.) After Plaintiff's claims were initially denied on January 16, 2018 (id., at 1444-49), Plaintiff requested a hearing before an administrative law judge (“ALJ”) (id., at 1450). On August 6, 2019, Plaintiff, represented by counsel and assisted by a Spanish interpreter, appeared at a hearing before ALJ Mark Solomon (the “Hearing”). (Id., at 1389-1431.) At the Hearing, ALJ Solomon also heard testimony from Juanita Pritchard, a vocational expert (“VE”). (Id., at 1411-29.) On October 1, 2019, ALJ Solomon issued an unfavorable decision finding that Plaintiff was not disabled under the Act. (Id., at 1238-61.) Plaintiff sought review of the ALJ's decision by the Appeals Council. (Id., at 1517-18.) In connection with his request for review, Plaintiff's counsel, Rachel Clapp, Esq. (“Clapp”), of the Legal Aid Society, submitted two letters (id., at 1601-05, 1606-07) along with additional medical records (id., at 983-1237, 1262-1380). The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on July 14, 2020. (Id., at 1-9.)
The “additional medical records” that Clapp reportedly submitted to the Appeals Council (see R., at 1606 (Cover letter from Clapp to the Appeals Council)) all appear to have been either (1) duplicates of records that were available to the ALJ when he rendered his decision, or (2) records that fall outside the relevant period, which runs from October 26, 2017 to October 1, 2019 (see Background, infra, at Section B). Of the referenced documents, this Court has not been able to locate in the Record seven pages of psychiatric records that Clapp claims to have submitted from the Gay Men's Health Crisis, reportedly dated from October 18, 2019 to December 18, 2019. (See R., at 1606.)
A. Plaintiffs Personal History
Plaintiff was born on October 20, 1968 (R., at 1519), such that he was 49 years old at the time he filed his application for SSI benefits. Plaintiff earned a GED equivalent in Puerto Rico in 1989 (id., at 1396) and a cosmetology certification in 1995 (id., at 1589). He was previously employed as a factory worker, hair stylist, and security guard (id., at 1538-41, 1556), and has not worked since 2007 (id., at 1555). At the Hearing, he testified that he lived alone and that he had been married, but that his husband had passed away in the prior year. (Id., at 1398.)
B. Medical Evidence
The relevant period under review on Plaintiffs claim for SSI benefits runs from October 26, 2017, the date on which Plaintiff applied for those benefits, to October 1, 2019, the date of the ALJ's decision. 20 C.F.R. §§ 416.330, 416.335; Barrie on behalf of F.T. v. Berryhill, No. 16cv5150 (CS) (JCM), 2017 WL 2560013, at *2 (S.D.N.Y. June 12, 2017) (adopting report and recommendation). This Court therefore focuses its analysis on the records from the relevant period.
1. Montefiore Medical Center
Plaintiff received regular medical and mental health care at Montefiore Medical Center (“Montefiore”) from May 2015 through the date of the Hearing. (R., at 1617-1877, 1959-2271, 2733-3044).
a. Medical Care with Dr. Peter Alpert
According to publicly available information, Dr. Alpert is an infectious disease specialist. https://health.usnews.com/doctors/peter-alpert-117621.
At Montefiore, Plaintiff saw Dr. Peter Alpert every few months during the relevant period for treatment and maintenance of HIV. On November 3, 2017, Dr. Alpert noted that plaintiff felt “well[] [without] complaints.” (R., at 1774.) Upon a physical examination, Dr. Alpert noted no irregularities and observed that Plaintiff had full range of motion. (Id., at 1775-76.) On February 5, 2018, Dr. Alpert noted that Plaintiff's HIV “viral load” was “undetectable.” (Id., at 436.) On May 7, 2018, Plaintiff reported that he had been experiencing “dizziness” for the prior 5 weeks. (Id., at 481.) Plaintiff continued to see Dr. Alpert approximately every three months until the end of the relevant period (see id., at 531-42, 600-16, 653-66, 743-58, 824-40, 914-29), with Dr. Alpert's notes remaining essentially the same, except for occasionally recording Plaintiff's reports that he had experienced “some vomiting” (see, e.g., id., at 601, 915).
b. Mental Health Care
i. Judith Reilly, NP
Also at Montefiore, Plaintiff saw Nurse Practitioner (“NP”) Judith Reilly for psychiatric care throughout the relevant period. On November 8, 2017, NP Reilly listed Plaintiff's diagnoses as “[r]ecurrent major depressive disorder, in remission” and “[m]oderate episode of recurrent major depressive disorder.” (R., at 394.) NP Reilly's notes from that visit indicate that Plaintiff reported having “good days and bad days” and that “[b]ad days occur[ed] when [his] partner bec[a]me[] aggressive about money.” (Id., at 395.) NP Reilly noted that Plaintiff had no history of suicide attempts; that he had a history of treatment for depression; that he spoke English, but Spanish was his primary language; and that he lived alone and had a “poor support system” in New York. (Id.) She also indicated that Plaintiff was, at that time, an “[e]very [d]ay [s]moker.” (Id., at 396.) Upon a mental status exam, NP Reilly noted that Plaintiff's appearance was “within normal limits”; he was “cooperative and engaged in [the] interview”; his eye contact was “good”; he had appropriate motor activity; his rate and volume of speech was “normal” and the content of his speech was “appropriate”; his thought process was “intact”; and his thought content was “appropriate.” (Id., at 397.) She further noted that Plaintiff had no suicidal ideation, fair insight, good judgment, and a “neutral” mood. (Id.) In her “Assessment & Plan Note, ” NP Reilly wrote, “Schizoaffective disorder, depressive type, ” and further noted that Plaintiff reported no side effects from any of his medications. (Id., at 401.) NP Reilly also noted that Plaintiff agreed that his depressive symptoms were “related to feelings about his partner.” (Id.)
Plaintiff saw NP Reilly again on November 22, 2017 (id., at 405-14) and December 6, 2017 (id., at 415-24). On both dates, NP Reilly's observations upon a mental status exam remained consistent with her earlier observations (see generally id., at 394-97), except that, on December 6, she noted that Plaintiff's mood was “sad” and his affect was “sad/tearful” (id., at 418); apparently, Plaintiff was upset at that time because his partner had died (see id., at 416). On January 3, 2018, NP Reilly noted that Plaintiff continued to be “sad, ” with a mood that was “appropriate to [the] situation, ” but further noted that he “actually seem[ed] to be coping well.” (Id., at 432.)
On February 7, 2018, NP Reilly noted that Plaintiff “[d]enie[d] [symptoms] of depression.” (Id., at 450.) Upon a mental status exam, she observed that Plaintiff was not having hallucinations or delusions (id., at 452) and that his “[m]ental status continue[d] to be stable” (id., at 453). On April 4, 2018, Plaintiff reported “episodes of sadness and lethargy” and stated that he was afraid his symptoms of depression were returning, but that the symptoms were not affecting his activities of daily living (“ADLs”). (Id., at 460.) On May 2, 2018, Plaintiff reported that his depression symptoms had improved, but that he felt “dizzy frequently during the day.” (Id., at 470.) NP Reilly noted that these symptoms were “probably [a] result of [an] increased dose of bupropion.” (Id.) On June 6, 2018, Plaintiff reported that his mood had improved, and he denied symptoms of depression. (Id., at 497.)
Bupropion is used to treat depression. https://www.webmd.com/drugs/2/drug-13507155/bupropion-hcl-oral/bupropion-oral/details.
ii. Sara Stevenson, NP
Plaintiff's care was transferred from NP Reilly to NP Stevenson on July 12, 2018. (Id., at 516.) At this visit, Plaintiff reported feeling anxious when out in public, especially “in crowds or in his neighborhood, ” and indicated that he was “fearful of violence” and afraid that people might “be talking about him.” (Id.) NP Stevenson noted that Plaintiff denied panic attacks, nightmares, or flashbacks. (Id.) She did note that Plaintiff had a history of “hearing [a] command” (an auditory hallucination) “to jump in front of [a] train” when he did not take his medications, but that the last time he had experienced auditory hallucinations or suicidal thoughts was two years earlier. (Id.) NP Stevenson also wrote that Plaintiff had recently quit smoking. (Id.) Upon a mental status exam, NP Stevenson observed that Plaintiff's manner was “withdrawn and passive”; his eye contact was “fair”; his rate of speech was “normal”; his volume of speech was “soft”; and his speech content was “appropriate.” (Id., at 519.) NP Stevenson also noted that Plaintiff's thought process was “intact and logical”; his insight was “poor”; his judgment and concentration were “fair”; his fund of knowledge was “poor”; his mood was “sad”; and his affect was “dysthymic, blunted, mood congruent.” (Id.) NP Stevenson further observed that Plaintiff had no impairment of his recent memory, but that he did have impairment of his remote memory. (Id.) She noted that Plaintiff's presentation was consistent with schizoaffective disorder, that he had “[s]ome possible delusional thinking” because he thought that others were talking about him, and that he had “mild depression” related to the death of his partner. (Id., at 523.)
On August 14, 2018, Plaintiff reported to NP Stevenson that he was feeling “a little more anxious and depressed” and was having “[d]ifficulty getting out of bed.” (Id., at 544.) NP Stevenson's other observations remained the same as they had been, except that, this time, she reported impairment of Plaintiff's recent memory and no impairment of his remote memory - the opposite of what she had reported on July 12, 2018. (Id., at 547.) She also noted that Plaintiff “appear[ed] cognitively limited.” (Id., at 551.) On August 28, 2018, NP Stevenson noted that Plaintiff had “difficulty understanding and following directions which impact[ed] ADLs.” (Id., at 562.)
Other visits with NP Stevenson occurred on September 11, 2018 (id., at 574-85), October 18, 2018 (id., at 587-99), November 16, 2018 (id., at 617-28), December 21, 2018 (id., at 629-40), January 3, 2019 (id., at 641-52), February 6, 2019 (id., at 675-87), and March 6, 2019 (id., at 689-98). Of note, at the October 2018 visit, Plaintiff reported having auditory hallucinations of his deceased partner's voice, once to twice per week, and difficulty with ADLs. (Id., at 587.) At the March 2019 visit, Plaintiff reported that he had experienced one “severe panic attack” in the past month and that he had thought he was “going to die.” (Id., at 689.) He also reported, at that time, that he was able to utilize coping skills including deep breathing, and that he took temazepam, which he found helpful. (Id.) Plaintiff then continued to see NP Stevenson every few weeks through the end of the relevant period, indicating varying levels of anxiety and depression throughout.
Temazepam is used to treat insomnia. https://www.webmd.com/drugs/2/drug8715/temazepam-oral/details.
On August 17, 2018, during the early period of her treatment of Plaintiff, NP Stevenson filled out a “Psychiatric Functional Assessment” form at the request of the Legal Aid Society. (Id., at 2632-38.) In that form, NP Stevenson opined that Plaintiff had an “extreme limitation or inability to function” in understanding and learning terms, instructions, and procedures; in identifying and solving problems; in using reason and judgment to make work-related decisions; in remembering locations and work-like procedures; and in carrying out very short and simple oral instructions. (Id., at 2633.) She also opined that Plaintiff had “marked or serious” limitations in asking simple questions or requesting assistance; in providing explanations; and in understanding and remembering short and simple instructions; initiating or sustaining conversation; in understanding and responding to social cues; in completing tasks in a timely manner; maintaining attention; sustaining an ordinary routine; and staying on task. (Id., at 2633-34.) She further opined that Plaintiff was likely to be absent from work more than four days per month, and late to work more than four days per month. (Id., at 2635.) According to NP Stevenson's report, Plaintiff had minimal capacity to adapt to increased mental or stress-related demands without a deterioration in functioning. (Id., at 2636.) At the bottom of the assessment, the form states: “If form is not completed by psychiatrist or psychologist, please have supervising psychiatrist or psychologist review and co-sign below, ” and the form then reflects that it was signed on August 29, 2018 by Kamran Rahmani, M.D. (Id., at 2637.)
Approximately 10 months later in the course of her treatment of Plaintiff - on June 25, 2019 - NP Stevenson filled the same form out again. (See id., at 3045-51.) This time, she noted that Plaintiff experienced sedation and fatigue as side effects of his medications. (Id., at 3045.) Much of the remainder of NP Stevenson's assessment remained the same as she had expressed in her August 2018 report, with a few notable improvements, some of which, for illustrative purposes, are shown in the chart below:
| Activity | Extent of Limitation or Inability To Function, per August 17, 2018 Assessment | Extent of Limitation or Inability To Function, per June 25, 2019 Assessment |
| Understanding and learning terms, instructions, and procedures | Extreme | Marked or serious |
| Identifying and solving problems | Extreme | Moderate |
| Using reason and judgment to make work-related decisions | Extreme | Marked or serious |
| Remembering locations and work-like procedures | Extreme | Marked or serious |
| Carrying out very short and simple oral instructions | Extreme | Moderate |
| Initiating or sustaining conversation | Marked or serious | Moderate |
| Keeping social interactions free of excessive irritability, sensitivity, argumentativeness, or suspiciousness | Marked or serious | Mild |
| Getting along with coworkers or peers without unduly distracting them or exhibiting behavioral extremes | Extreme | Mild |
(See id., at 3046-48.) On June 26, 2019, this second assessment by NP Stevenson was again co-signed by Dr. Rahmani, who this time indicated his title as “MD/Psychiatrist.” (See id., at 3050.)
iii. Olga Santiago-Casiano, LCSW
Overlapping with his care from the treaters discussed above, Plaintiff was also seen at Montefiore, during the relevant period, by a licensed clinical social worker (“LCSW”), Olga Santiago-Casiano (“Santiago-Casiano”). On November 10, 2017, Plaintiff saw Santiago-Casiano for a “new patient visit.” (R., at 1801-09.) At that time, Santiago-Casiano noted that Plaintiff was “oriented x3” (i.e., to person, place, and time), and was cooperative. (Id., at 1802.) Plaintiff denied hallucinations, but reported that he believed that people he did not know were talking about him. (Id.) Santiago-Casiano noted that Plaintiff's “main reasons” for attending therapy, at that time, were issues with his partner. (Id.) Plaintiff completed a depression questionnaire and indicated that he felt “down, depressed, or hopeless” and “tired or [with] little energy” on “[m]ore than half the days.” (Id., at 1804.) His overall score yielded a finding of “moderate depression.” (Id.) Plaintiff also completed an anxiety questionnaire, indicating that on “[m]ore than half the days” he was unable to stop worrying, worried too much about different things, and became easily annoyed or irritable. (Id.) His overall score yielded a finding of “mild” anxiety. (Id.)
Plaintiff continued to see Santiago-Casiano for therapy every two weeks throughout the relevant period. (See, e.g., id., at 2932-34, 2916-18; 2874-76, 2853-55, 2818-20, 2751-54.) The sessions focused on issues such as Plaintiff's eventual partner's death, Plaintiff's overall mood and anxiety, and his feelings of loneliness. (See, e.g., id.) Plaintiff repeatedly denied hallucinations and Santiago-Casiano repeatedly noted that “[n]o delusional thinking [was] elicited.” (See, e.g., id.)
On June 28, 2019 - only three days after NP Stevenson had filled out her second “Psychiatric Functional Assessment” of Plaintiff - Santiago-Casiano similarly filled out a copy of the same assessment form. (See id., at 3052-57.) Santiago-Casiano opined that Plaintiff had only a “mild” limitation in asking simple questions or requesting assistance (id., at 3053), and no limitations in several areas, such as getting along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes (id., at 3054), initiating and performing a task he understood and knew how to do (id.), and setting realistic goals (id., at 3055). She also opined, however, that Plaintiff had an “extreme limitation or inability to function” in remembering locations and work-like procedures and in sustaining an ordinary routine. (Id., at 3053-54.) Further, she found that Plaintiff had “marked or serious” limitations in understanding and learning terms, instructions, and procedures; in identifying and solving problems; in initiating or sustaining conversation; in understanding and responding to social cues; in completing tasks in a timely manner; and in maintaining attention (id.), and “moderate” limitations in using reason and judgment to make work-related decisions; in carrying out very short and simple oral instructions; and in staying on task (id.). She noted that Plaintiff would “need extra supportive supervision [and] guidance, ” and that it was “unlikely [he] would be able to work independently.” (Id., at 3054.) She also echoed NP Stevenson's opinion that Plaintiff would be absent from work more than four days per month and late more than four days per month. (Id., at 3055.) As with the forms that NP Stevenson had completed, the assessment form filled out by Santiago-Casiano was co-signed by Dr. Rahmani, this time on June 28, 2019 (two days after he had co-signed the second of NP Stevenson's assessments). (Id., at 3057.)
iv. Erica Weiss, Ph.D.
Plaintiff saw Dr. Erica Weiss, a psychologist, on February 4, 2019, for a “comprehensive neuropsychological evaluation to ascertain current cognitive functioning.” (R., at 668.) Dr. Weiss noted that Plaintiff “endorsed memory complaints as the reason for this evaluation, ” and specifically, that he “reported occasional forgetfulness.” (Id.) Plaintiff reported that he was forgetting to take his medication and turn off the stove, and that he was losing the papers on which he wrote his appointment dates and then forgetting the appointments. (Id.) Plaintiff told Dr. Weiss that he used to rely on his partner, who had recently passed, to do household chores, and that, since his partner's passing, he had struggled to maintain the house “due to a lack of interest in cleaning.” (Id.) Dr. Weiss wrote that Plaintiff also “endorsed a history of possible attention difficulties and questionable learning abilities, ” and that a review of his medical chart “revealed that there [was] a concern about [Plaintiff's] ability to process auditory information and his ability to manage complex tasks.” (Id.) Plaintiff indicated that his symptoms were improving with therapy, but that the medication was “not helping to decrease depression.” (Id., at 668-69.) Plaintiff also noted a past history of suicidal ideation. (Id., at 669.)
Dr. Weiss observed that Plaintiff was poorly groomed and that his speech was “of slow speed and low tone.” (Id.) She observed that Plaintiff's “[t]hought process appeared similarly slow, ” but that his thought “content was adequate.” (Id.) She noted that he “needed constant prompting and occasional redirection to complete tasks” and “frequently require[ed] cuing on each item.” (Id.) Dr. Weiss observed that it took Plaintiff “about double the time to complete tasks as would be expected given his age, ” and that “he gave up easily during difficult tasks but was responsive to coaxing” and “completed everything asked of him.” (Id.)
Plaintiff continued his neuropsychological evaluation with Dr. Weiss on March 7, 2019. (Id., at 699-704). At that visit, Plaintiff denied forgetting to take his medication. (Id., at 700.) Dr. Weiss's observations remained the same, and she indicated that Plaintiff would return to complete testing and receive feedback. (Id., at 701.)
Plaintiff saw Dr. Weiss for a final time on April 15, 2019, at which time she also wrote a report of her evaluation. (Id., at 717-26.) At the April 15, 2019 examination, Plaintiff reported that he was “fully independent on all ADLs” and that during a regular day he “stay[ed] home watching television and walk[ed] his dog once a day.” (Id., at 719.) Dr. Weiss reported, though, that Plaintiff “appeared to be a questionable historian as he struggled to provide specific details of his personal and medical histories, ” and also provided “conflicting details.” (Id.) She noted that Plaintiff completed a battery of neuropsychological tests and that his score indicated “normal cognition and mild cognitive impairment.” (Id., at 720.)
Dr. Weiss opined that Plaintiff's verbal comprehension, perceptual reasoning, and processing speed were within the “low average range”; that his math abilities were in the “impaired” range; that his memory recall was in the “low average range”; and that his visual recall was in the “borderline range.” (Id.) She indicated that Plaintiff had demonstrated “low average to average performances on tasks of attention and processing speed, ” and that he had exhibited “poor planning” and “weak organization skills.” (Id., at 721.) She also indicated that Plaintiff exhibited difficulties “ascertain[ing] the goal of [a] task, ” and that he “struggled to learn from the task when the task demands/instructions changed.” (Id.) She found that Plaintiff performed within the “low average range . . . on a task of fund knowledge, ” and in the “average range . . . on a task of word knowledge and abstract verbal reasoning.” (Id.) Dr. Weiss opined that Plaintiff's “expressive language abilities were estimated to be at the age equivalent of 13.7 years, ” and that his “receptive language abilities were estimated to be at the age equivalent of 14.6 years.” (Id.) Dr. Weiss further observed that Plaintiff's “manual dexterity performances were impaired” in his right hand and were “borderline” in his left (non-dominant) hand. (Id., at 722.) Dr. Weiss opined that Plaintiff's performance was generally consistent with his reported depression and anxiety. (Id.)
Overall, Dr. Weiss concluded that it was possible Plaintiff had “mild neurocognitive changes secondary to HIV, ” but that it appeared that psychological factors including the recent death of his partner “impact[ed] his ability to focus and attend to information.” (Id.) Dr. Weiss recommended that “all information during medical appointments be simplified, ” and that information be presented to Plaintiff in “concrete, short sentences that are repeated to assure understanding.” (Id., at 723.)
2. Consultative Examinations (“CEs”)
a. Dr. Allen Meisel
Plaintiff saw Dr. Allen Meisel for an internal medicine CE on December 11, 2017. (R., at 1878-81.) Dr. Meisel indicated that Plaintiff was “able to do cooking, cleaning, laundry, and shopping, ” and that he was “able to shower and dress himself.” (Id., at 1879.) Upon a physical examination, Dr. Meisel noted normal findings across the board, including that Plaintiff's gait and stance were “normal, ” that his joints were “stable and nontender, ” and that he had full range of motion of his “shoulders, elbows, forearms, and wrists bilaterally” and also had full range of motion of his “hips, knees, and ankles bilaterally.” (Id., at 1879-80.) Dr. Meisel noted that Plaintiff was HIV positive, had genital herpes, a skin rash, and depression, and opined, at that time, that Plaintiff had “no physical limitations.” (Id., at 1880-81.)
Plaintiff returned to Dr. Meisel on January 24, 2019 for another internal medicine CE. (See id., at 1886-89.) Dr. Meisel's observations and findings were generally the same as those he recorded in 2017. (See id.) This time, however, Dr. Meisel completed a Medical Source Statement and opined that Plaintiff could “continuously” (meaning “more than two-thirds of the time”) lift and carry up to 100 pounds (id., at 1890); could sit, stand, and walk for eight hours total in an eight-hour work day, and also for eight hours without interruption (id., at 1891); could “continuously” reach, handle, finger, push, and pull with both hands (id., at 1892); could “continuously” use both his feet (id.); could “continuously” climb stairs, ramps, ladders, and scaffolds, as well as balance, stoop, kneel, crouch, and crawl (id., at 1893); could “continuously” tolerate exposure to unprotected heights, moving mechanical parts, humidity and wetness, extreme temperatures (id., at 1894); could operate a motor vehicle (id.); could never tolerate dust, odors, fumes and pulmonary irritants (id.); and could tolerate moderate noise (id.). Dr. Meisel also found that Plaintiff could shop, travel without a companion, use public transportation, prepare meals, and care for his personal hygiene. (Id., at 1895.)
b. Dr. Michael Kushner
Plaintiff saw Dr. Michael Kushner for a psychiatric CE on December 11, 2017. (R., at 1882-85.) Plaintiff reported to Dr. Kushner that he had trouble sleeping and low appetite. (Id., at 1882.) He denied having suicidal thoughts at that time, but noted that he experienced “auditory hallucinations of voices that [told] him to take all of his pills to try to kill himself.” (Id.) He also reported “sometimes thinking that people [were] talking about him, ” as well as short-term memory problems. (Id., at 1882-83.) Upon a mental status examination, Dr. Kushner observed that Plaintiff's speech intelligibility was “fluent”; his expressive language and receptive language were “adequate”; his thought process was “coherent and goal directed with no evidence of hallucinations, delusions, or paranoia”; his attention and concentration were “somewhat impaired”; his recent and remote memory skills were “mostly impaired”; and his intellectual functioning was “below average.” (Id., at 1883-84.)
Dr. Kushner opined that Plaintiff had a “mild limitation” in understanding, remembering, and applying simple directions and instructions, and “moderate limitations” in a number of functional domains, including in understanding, remembering, and applying complex directions and instructions; in using reason and judgment to make work-related decisions; in interacting adequately with supervisors, coworkers, and the public; in sustaining concentration and performing a task at a consistent pace; and in sustaining an ordinary routine and regular attendance at work. (Id., at 1884.) Dr. Kushner also opined that Plaintiff had a “moderate to occasionally marked limitation” in regulating emotions, controlling behavior, and maintaining well-being; a “mild to moderate limitation” in maintaining personal hygiene and appropriate attire; and “no evidence of a limitation” in being aware of normal hazards and taking appropriate precautions. (Id.) Finally, Dr. Kushner noted that “[t]he results of the present evaluation appear[ed] to be consistent with psychiatric problems, ” and opined that this “may significantly interfere with the claimant's ability to function on a daily basis.” (Id., at 1885.)
c. Dr. David Schaich
Plaintiff saw Dr. David Schaich on January 24, 2019 for an “intelligence evaluation.” (See R., at 1898-1909.) After administering a “non-verbal intelligence” test, Dr. Schaich indicated that Plaintiff had scored in the “poor range.” (Id., at 1899.) Dr. Schaich issued a Medical Source Statement, in which he opined that Plaintiff had “no evidence of limitation” in his ability to understand, remember, and apply simple or complex directions and instructions (id.), but that he had “moderate limitations” in his abilities to use reason and judgment to make work-related decisions; to sustain concentration and perform a task at a consistent pace; and to sustain an ordinary routine and regular attendance at work (id., at 1900), and “marked limitations” in his ability to interact adequately with supervisors, coworkers, and the public, and in his ability to regulate emotions, control behaviors, and maintain wellbeing. (Id.) Dr. Schaich found no evidence of limitations in Plaintiffs ability to maintain personal hygiene and appropriate attire, or to be aware of normal hazards and take appropriate precautions. (Id.)
d. Dr. A. Saeed and Dr. T. Harding
Seemingly without examining Plaintiff, Dr. A Saeed opined in the initial disability determination that “[objective findings do not support any severe functional limitations.” (R., at 1436.) Similarly - also seemingly without examining Plaintiff personally - Dr. T. Harding opined that, while Plaintiffs “medically determinable impairments could have reasonably been expected to produce the alleged symptoms, ” Plaintiffs “statements concerning the intensity, persistence, and limiting effects of these symptoms are generally not consistent with the evidence of record.” (Id., at 1438.)
C. Non-Medical Evidence
1. Plaintiffs Function Report
Plaintiff filled out a function report on November 14, 2017. (R., at 1546-53.) In that report, Plaintiff indicated that he performed “house chores” (id, at 1546), that he went shopping twice a month (id, at 1548), that he was able to count change (id., at 1550), that he liked to watch television (id), and that he went to a “community center” two or three times per week (id.). Plaintiff also indicated that he was able to dress and bathe (id, at 1547), but that he was only able to walk “about one block” before needing to stop and rest (id., at 1552), and that he had difficulty concentrating (id, at 1553). Plaintiff noted that a “friend” helped him around the house and with preparing meals (id, at 1547-48), that he was afraid to go outside alone (id, at 1548) and that he had low back pain and pain in both of his legs (id., at 1551.)
2. The Hearing
a. Plaintiff's Testimony Before the ALJ
As noted above, Plaintiff appeared with counsel and testified with the assistance of a Spanish interpreter at the Hearing. (See R., at 1389-1431.) Plaintiff testified that he had obtained his GED in Puerto Rico and that he understood some English but spoke “very little.” (Id., at 1396-97.) He also testified that he did not know how to write more than his name and address in English. (Id., at 1397.) He explained that he lived alone and that his partner had passed away a year earlier. (Id., at 1398.) He testified that he was able to take the subway, but found the bus “more difficult.” (Id., at 1399.) He testified that he did not “make [many] friends, ” but did not have any specific problem getting along with people. (Id., at 1400.)
As for his physical impairments, Plaintiff testified that his HIV caused constant numbness in his hands and feet (id., at 1397), and that he went to a “program” for HIV patients about three times a week (id., at 1399-1400). He explained that, if he sat for a long time, he would feel neck pain and fatigue. (Id., at 1401.) He stated that he was able to sit for about three hours at a time and stand for about one hour at a time, and that he could carry up to two grocery bags per hand, but would have to stop several times before arriving home “[b]ecause [his] arms hurt.” (Id., at 1401-02.) He also testified that he had a problem with his left thumb. (Id.) Plaintiff testified that his medications made him “feel a bit of dizziness.” (Id., at 1403.)
Regarding his mental impairments, Plaintiff testified that he “[a]lways” had trouble remembering things, and that he was in mental health treatment, which he found helpful. (Id., at 1404-06.) He testified that he felt depressed and anxious every day and that he used to think about suicide. (Id., at 1407.) He stated that he had good days and bad days, and good months and bad months. (Id., at 1408.)
After questioning by the ALJ, Plaintiff's attorney, Clapp, asked him, “if something costs 63 cents and you give a dollar, how much change do you get back?” and Plaintiff responded, “Fifty cents.” (Id., at 1409.) Clapp asked, “[i]f you're buying laundry detergent that costs $1.59 and you give the cashier $5.00, how much change do you get back?” and Plaintiff replied, “Four dollars.” (Id.)
Plaintiff testified that he had worked as a security guard in 2006 and 2007, but did not discuss any other work history. (See id., at 1411-12.)
b. The VE's Testimony Before the ALJ
As noted above, VE Pritchard testified at the Hearing. (Id., at 1416-29.) She testified that Plaintiff's prior work as a security guard was a “semi-skilled” job, classified at Specific Vocational Preparation (“SVP”) level 3, with a “light” exertional level. (Id., at 1416.) The ALJ noted that there was an “actual question of whether that constitutes past relevant work or not because [Plaintiff's] testimony [was] somewhat at variance with his actual reporting.” (Id.)
The ALJ first asked the VE to assume a hypothetical claimant of age 50, with a GED diploma and no past work, with “no exertional limitations [except that] he would have to avoid working [with] unprotected heights or hazardous machinery, ” and with the ability to perform the “full range of repetitive work, ” except for a job “requiring high volume or fast-paced production quotas.” (Id., at 1417.) Considering these limitations, the VE testified that such a hypothetical person could perform various unskilled jobs, including a “hand packager, ” a “dishwasher, ” and a “cook helper.” (Id., at 1417-18.)
The ALJ then asked the VE to consider the same hypothetical person, except that the person would be unable to speak English. (Id., at 1418.) The VE testified that the same jobs would be available. (Id.) The VE then added to the hypothetical that the person could “only have occasional close interpersonal contact with the general public, ” and the VE again opined that the same jobs would be available. (Id.)
The VE testified that an individual could miss no more than one day of work per month, and be “off task” no more than 10 percent of the time before he would be deemed unable to work. (Id., at 1419.) The VE also testified that, if the person were “unable to remember, understand, and carry out simple instructions, ” unable to have “personal contact at all with others, ” or “unable to tolerate even simple stress in the workplace, ” then there would be no available jobs for them in the national economy. (Id.)
Clapp then asked the VE to assume the same person from the ALJ's first hypothetical, but with the additional limitations that the person would be limited to “simple one-to[-]two-step tasks” and have limited manual dexterity, and asked whether there were jobs such a person could perform in the national economy. (Id., at 1424.) The VE testified that such a person could perform the jobs of “bakery helper” and “ironer.” (Id., at 1425-26.)
D. The Current Action and Motions Before the Court
Represented by counsel, Plaintiff filed a Complaint in this action on September 16, 2020. (Dkt. 1.) On July 13, 2021, Plaintiff moved for judgment on the pleadings (see Dkt. 25-1 (Notice of Motion)), filing, in support of his motion, a memorandum of law (Memorandum of Law in Support of Plaintiff s Motion for Judgment on the Pleadings, dated July 13, 2021 (“Pl. Mem.”) (Dkt. 25)). In his memorandum, Plaintiff argued that the ALJ “cherry picked evidence” when evaluating whether Plaintiffs impairments met or equaled Listing 12.04 (for depression-related disorders) or Listing 12.06 (anxiety-related disorders); that the ALJ “substituted his own judgment for the medical opinions in the record”; that the ALJ “erred in weighing the opinion evidence”; and that the ALJ made and relied on an “incomplete” assessment of Plaintiff s residual functional capacity (“RFC”) “that fail[ed] to include all limitations.” (See Pl. Mem., at 17-25.)
On December 9, 2021, Defendant filed a cross-motion for judgment on the pleadings (Dkt. 30), along with a supporting memorandum of law (Memorandum of Law in Support of the Commissioner's Cross-Motion for Judgment on the Pleadings and in Opposition to Plaintiff's Motion for Judgment on the Pleadings, dated Dec. 9, 2021 (“Def. Mem.”) (Dkt. 31)). Defendant argued therein that “substantial evidence support[ed] the ALJ's finding that Plaintiff's condition did not meet or equal the requirements of Section 12.04 or 12.06 of the listing of impairments, ” that “substantial evidence support[ed] the ALJ's finding that Plaintiff had the mental [RFC] for work with certain non-exertional limitations, ” that “the ALJ was not required to adopt the opinions of other professionals, ” and that “substantial evidence support[ed] the ALJ's finding that Plaintiff did not have a severe physical impairment and was not disabled based on a lack of English proficiency.” (See Def. Mem., at 14-28.)
Plaintiff submitted a reply memorandum on January 31, 2022, largely restating his principal arguments. (See Reply Memorandum of Law in Further Support of Plaintiff's Motion for Judgment on the Pleadings and in Opposition to Defendants' Cross-Motion for Judgment on the Pleadings, dated Jan. 31, 2022 (“Pl. Reply”) (Dkt. 32).)
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
A. Judgment on the Pleadings
Judgment on the pleadings under Rule 12(c) is appropriate where “the movant establishes ‘that no material issue of fact remains to be resolved, '” Guzman v. Astrue, No. 09cv3928 (PKC), 2011 WL 666194, at *6 (S.D.N.Y. Feb. 4, 2011) (quoting Juster Assocs. v. City of Rutland, 901 F.2d 266, 269 (2d Cir. 1990)), and a judgment on the merits can be made “‘merely by considering the contents of the pleadings, '” id. (quoting Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988)).
Judicial review of a decision of the Commissioner is limited. The Commissioner's decision is final, provided that the correct legal standards are applied and findings of fact are supported by substantial evidence. 42 U.S.C. § 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000).
B. The Five-Step Sequential Evaluation
To be entitled to disability benefits under the Act, a claimant must establish his or her “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). An individual is considered disabled only if the individual's physical or mental impairments are of such severity that he or she is not only unable to do his or her previous work, but also cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B).
In evaluating a disability claim, an ALJ must follow the five-step procedure set out in the regulations governing the administration of Social Security benefits. See 20 C.F.R. § 416.920; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). Throughout the inquiry, the ALJ must consider four primary sources of evidence: “(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience.” Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (citations omitted).
The first step of the inquiry requires the ALJ to determine whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i). If not, at the second step, the ALJ determines whether the claimant has a “severe” impairment or combination of impairments that significantly limits his or her physical or mental ability to do basic work activities. Id. §§ 416.920(a)(4)(ii), (c). If the claimant does suffer from such an impairment, then the third step requires the ALJ to determine whether this impairment meets or equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. Id. § 416.920(a)(4)(iii). If it does, then the claimant is presumed to be disabled “without considering [the claimant's] age, education, and work experience.” Id. § 416.920(d).
Where the claimant alleges a mental impairment, Steps Two and Three require the ALJ to apply a “special technique, ” outlined in 20 C.F.R. § 416.920a, to determine the severity of the claimant's impairment at Step Two, and to determine whether the impairment satisfies Social Security regulations at Step Three. See Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). If the claimant is found to have a “medically determinable mental impairment, ” the ALJ must “specify the symptoms, signs, and laboratory findings that substantiate the presence of the impairment(s), ” then “rate the degree of functional limitation resulting from the impairment(s) in accordance with paragraph (c) of [Section 416.920a], ” which specifies four broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence or pace; and (4) episodes of decompensation. 20 C.F.R. §§ 416.920a(b), (c)(3); see Kohler, 546 F.3d at 265-66. The functional limitations for these first three areas are rated on a five-point scale of “[n]one, mild, moderate, marked, [or] extreme, ” and the limitation in the fourth area (episodes of decompensation) is rated on a four-point scale of “[n]one, ” “one or two, ” “three, ” or “four or more.” 20 C.F.R. § 416.920a(c)(4).
“Episodes of decompensation are exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence, or pace.” Morales v. Colvin, No. 13cv4302 (SAS), 2014 WL 7336893, at *8 n.130 (S.D.N.Y. Dec. 24, 2014) (quoting Kohler, 546 F.3d at 266 n.5).
If the claimant's impairment does not meet or equal a listed impairment, then the ALJ must determine, based on all the relevant evidence in the record, the claimant's residual functional capacity, or ability to perform physical and mental work activities on a sustained basis. Id. § 416.945. The ALJ then proceeds to the fourth step of the inquiry, which requires the ALJ to determine whether the claimant's RFC allows the claimant to perform his or her “past relevant work.” Id. § 416.920(a)(4)(iv). Finally, if the claimant is unable to perform his or her past relevant work, the fifth step requires the ALJ to determine whether, in light of the claimant's RFC, age, education, and work experience, the claimant is capable of performing “any other work” that exists in the national economy. Id. §§ 416.920(a)(4)(v), (g).
On the first four steps of the five-step evaluation, the claimant generally bears the burden of establishing facts to support his or her claim. See Berry, 675 F.2d at 467 (citation omitted). At the fifth step, the burden shifts to the Commissioner to “show that there is work in the national economy that the claimant can do.” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). The Commissioner must establish that the alternative work “exists in significant numbers” in the national economy and that the claimant can perform this work, given his or her RFC and vocational factors. 20 C.F.R. § 416.960(c)(2).
In making such a finding, an ALJ may rely on a vocational expert's testimony concerning the availability of jobs suited to a hypothetical person with the claimant's capabilities, “as long as the facts of the hypothetical are based on substantial evidence and accurately reflect the limitations and capabilities of the claimant involved.” Sylcox v. Colvin, No. 14cv2161 (PAC) (HBP), 2015 WL 5439182, at *16 (S.D.N.Y. Sept. 15, 2015) (citing Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983); Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981)).
C. Evaluation of Medical Opinion Evidence
For SSI applications filed prior to March 27, 2017, SSA regulations dictated that an ALJ was to give more weight to the opinions of those physicians with the most significant clinical relationship with the plaintiff. See 20 C.F.R. § 416.1527; see also, e.g., Taylor v. Barnhart, 117 Fed.Appx. 139, 140 (2d Cir. 2004) (Summary Order). Under this “treating physician rule, ” an ALJ was required to “give good reasons” if he or she determined that a treating physician's opinion was not entitled to “controlling weight, ” or, at least, “more weight” than the opinions of non-treating and non-examining sources. Gonzalez v. Apfel, 113 F.Supp.2d 580, 589 (S.D.N.Y. 2000). Further, under that same rule, a consultative physician's opinion was generally entitled to “little weight.” Giddings v. Astrue, 333 Fed.Appx. 649, 652 (2d Cir. 2009) (Summary Order).
On January 18, 2017, however, the SSA published comprehensive revisions to its regulations regarding the evaluation of medical evidence, applicable to benefits applications filed on or after March 27, 2017 (such as Plaintiff's claims in this case). See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01 (Jan. 18, 2017) (available at 2017 WL 168819). In implementing new regulations, the SSA has apparently sought to move away from a perceived hierarchy of medical sources. See 82 Fed.Reg. 5844. Thus, the new regulations state that an ALJ need “not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources.” 20 C.F.R. § 416.1520c(a). Instead, an ALJ is to consider all medical opinions in the record and “evaluate their persuasiveness” based on the following five “factors”: (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) any “other” factor that “tend[s] to support or contradict a medical opinion.” Id. § 416.920c(a)-(c). Despite the requirement to “consider” all of these factors, the ALJ's duty to articulate a rationale for each factor varies. Id. § 416.1520c(a)-(b).
Under the new regulations, a “prior administrative medical finding” is defined as:
a finding, other than the ultimate determination about whether you are disabled, about a medical issue made by our Federal and State agency medical and psychological consultants at a prior level of review (see § 416.1400) in your current claim based on their review of the evidence in your case record, such as: (i) The existence and severity of your impairment(s); (ii) The existence and severity of your symptoms; (iii) Statements about whether your impairment(s) meets or medically equals any listing in the Listing of Impairments in Part 404, Subpart P, Appendix 1; . . . (v) . . . your residual functional capacity; (vi) Whether your impairment(s) meets the duration requirement; and (vii) How failure to follow prescribed treatment (see § 416.930) and drug addiction and alcoholism (see § 416.935) relate to your claim.20 C.F.R. § 416.913(a)(5).
More specifically, under the new regulations, the ALJ must “explain, ” in all cases, “how [he or she] considered” both the supportability and consistency factors, as they are “the most important factors.” Id. § 416.1520c(b)(2); see Amber H. v. Saul, No. 3:20-CV-490 (ATB), 2021 WL 2076219, at *4 (N.D.N.Y. May 24, 2021) (noting that the two “most important factors for determining the persuasiveness of medical opinions are consistency and supportability, ” which are the “same factors” that formed the foundation of the treating physician rule). For supportability, “the strength of the medical opinion increases as the relevance of the objective medical evidence and explanations presented by the medical source increase.” Vellone v. Saul, No. 20cv261 (RA) (KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021) (citing 20 C.F.R. § 416.920c(c)(1)). Consistency, on the other hand, “is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record.” Id. (citing 20 C.F.R. § 416.920c(c)(2)); see generally 42 U.S.C. § 423(d)(5)(B) (governing SSA statute that requires an ALJ to base the decision on “all the evidence available in the [record]”).
In addition to eliminating the treating physician rule, the SSA's new regulations broaden the definition of “acceptable medical sources” to include advanced practice nurses, including nurse practitioners, and licensed physician assistants. See 20 C.F.R. § 416.902(a)(7); see also Mota v. Comm'r of Soc. Sec., No. 20cv07294 (SN), 2022 WL 464098, at *8 n.6 (S.D.N.Y. Feb. 15, 2022).
Under the new regulations, see 20 C.F.R. § 416.920c(b)(2), the ALJ is required to consider, but need not explicitly discuss, the three remaining factors (i.e., relationship with the claimant, specialization, and “other”) in determining the persuasiveness of a medical source's opinion. Where, however, the ALJ has found two or more medical opinions to be equally supported and consistent with the record, but not exactly the same, the ALJ must articulate how he or she considered those three remaining factors. See Id. § 416.920c(b)(3).
Although, at this time, there appear to be only a handful of opinions at the district level within the Second Circuit that have considered the application of the new regulations, those courts that have been “presented with these [new] regulations have concluded that the factors are very similar to the analysis under the old [treating physician] rule.” Dany Z. v. Saul, No. 2:19-CV-217, 2021 WL 1232641, at *11 (D. Vt. Mar. 31, 2021) (citing Cuevas v. Comm'r of Soc. Sec., No. 20cv0502 (AJN) (KHP), 2021 WL 363682, at *9 (S.D.N.Y. Jan. 29, 2021) (surveying Second Circuit district court level cases considering the new regulations and concluding that they show that “the essence” of the treating physician rule “remains the same, and the factors to be considered in weighing the various medical opinions in a given claimant's medical history are substantially similar”)). As another court in this District recently explained, “[t]his is not surprising[, ] considering that, under the old rule, an ALJ had to determine whether a treating physician's opinion was supported by well-accepted medical evidence and not inconsistent with the rest of the record before controlling weight could be assigned.” Cuevas, 2021 WL 363682, at *9 (emphasis in original); see also Andrew G. v. Comm'r of Soc. Sec., No. 3:19-CV-0942 (ML), 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (noting that “consistency and supportability” were “the foundation of the treating source rule”); see, e.g., Brianne S. v. Comm'r of Soc. Sec., No. 19-cv-1718-FPG, 2021 WL 856909, at *5 (W.D.N.Y. Mar. 8, 2021) (remanding to the ALJ with instructions to provide an explicit discussion of the supportability and consistency of two medical opinions and explaining that an ALJ may not merely state that an examining physician's opinion is not consistent with the overall medical evidence).
Although it is not yet clear how much the new regulations regarding the weighing of medical opinion evidence may affect other aspects of the body of Second Circuit law that has developed with respect to Social Security appeals, this Court joins other courts in this District in concluding that other, longstanding general principles of judicial review still apply to cases with benefits claims that were filed on or after March 27, 2017. See, e.g., Cuevas, 2021 WL 363682, at *15 (determining that the well-settled principle in this Circuit that an ALJ “cannot ignore or mischaracterize evidence” applied “equally to the ALJ's mandatory explanation of the new consistency factor, ” and, thus, holding that the ALJ committed legal error by failing to satisfy that principle). Certainly, nothing in the new regulations should obviate the ALJ's obligation to develop the Record, see, e.g., Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citation omitted), to consider “all of the relevant medical and other evidence, ” 20 C.F.R. § 416.945(a)(3), and to refrain from substituting his or her own lay opinion for that of medical professionals, see, e.g., Merriman v. Comm'r of Soc. Sec., No. 14cv3510 (PGG) (HBP), 2015 WL 5472934, at *18 (S.D.N.Y. Sept. 17, 2015) (adopting report and recommendation).
II. THE ALJ'S DECISION
The ALJ issued his decision on October 1, 2019, finding that Plaintiff was not disabled for purposes of the Act and did not qualify for SSI benefits. (R., at 1238-56.) In rendering that decision, the ALJ applied the required five-step sequential evaluation. (See id.)
A. Steps One Through Three of the Sequential Evaluation
At Step One, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since October 26, 2017, the date of his application for SSI benefits. (R., at 1246.)
At Step Two, the ALJ found that Plaintiff had the severe impairments of schizoaffective disorder, bipolar disorder, major depressive disorder, and generalized anxiety disorder. (Id.) The ALJ also found that, although Plaintiff had HIV, “he was able to work at substantial gainful activity levels after he was diagnosed, and during the relevant period his viral load was undetectable and his physical examinations were unremarkable.” (Id.) Therefore, the ALJ found this condition to be “non-severe.” (Id.)
At Step Three, after considering Plaintiffs mental impairments and applying the required “special technique” for assessing such impairments (see Discussion, supra, at Section I(B)), the ALJ determined that Plaintiff did not have an impairment or combination of impairments that “meets or medically equals the severity of one of the listed impairments . . . .” (Id., at 1247.) In making that finding, the ALJ determined that Plaintiffs mental impairments did not, as required, meet the criteria set out in “Paragraph B” or “Paragraph C” of Listing 12.04 (Depressive, bipolar and related disorders) or Listing 12.06 (Anxiety and obsessive-compulsive disorders). (Id.)
A claimant meets the listing for depressive, bipolar, and related disorders (i.e., Listing 12.04) or anxiety-related disorders (i.e., Listing 12.06), where she meets both the “paragraph A” and “paragraph B” criteria, or both the “paragraph A” and “paragraph C” criteria of those listings. To meet the “paragraph B” criteria under either Listing, a claimant would need to demonstrate an “extreme limitation” of one, or “marked limitation” of two, of the following areas of mental functioning: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; (4) adapting or managing oneself. 20 C.F.R. Pt. 404, Subpt. P, App'x 1. An “extreme limitation” means the claimant is “not able to function in this area independently, appropriately, effectively, and on a sustained basis.” Id. A “marked limitation” means the claimant's “functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited.” Id. To meet the “paragraph C” criteria under either Listing 12.04 or Listing 12.06, a claimant would need to demonstrate that the condition was “serious or persistent, ” namely, a medically documented history of the existence of the disorder over a period of at least two years, and evidence of both: (1) medical treatment, mental health therapy, psychosocial support, or a highly structured setting that is ongoing and that diminishes the symptoms and signs of the mental disorder; and (2) marginal adjustment, or minimal capacity to adapt to changes in his or her environment or to demands that are not already part of his or her daily life. Id.
B. The ALJ's Assessment of Plaintiffs RFC
The ALJ determined that Plaintiff had the RFC to perform
[A] full range of work at all exertional levels but with the following nonexertional limitations: he should avoid working at unprotected heights or with hazardous machinery. He can perform the full range of unskilled, repetitive, rote work with only the restriction that he cannot perform a job requiring high volume or fast-paced production quotas, and can only have occasional close interpersonal contact with the general public.(Id., at 1248.) In making this RFC determination, the ALJ found that Plaintiffs medically determinable impairments could “reasonably be expected to cause the alleged symptoms, ” but that Plaintiffs “statements concerning the intensity, persistence, and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record . . . .” (Id., at 1249.)
The ALJ found that Plaintiffs statements were “inconsistent” because, while he testified that he “hardly did anything when he was not feeling positive, that he had trouble remembering things, and [that he] did not make friends, ” he also reported that he could “watch television, count change, spend time with others, [and] use public transportation.” (Id.) The ALJ noted that Plaintiff had told consultative examiners that he “lived alone, could do cooking, cleaning, laundry, and shopping, and could shower and dress himself, ” and that he testified that he attended a “group HIV program” three times a week, that he had no problems getting along with others, and that his “auditory hallucinations were more controlled with medication.” (Id.) The ALJ also stated that the treatment notes in the Record did not fully support Plaintiff's allegations of disabling symptoms because, inter alia, Plaintiff indicated that the reported suicidal and depressive symptoms were related to his then-living situation. (Id.)
The ALJ then turned to the medical opinion evidence. As for the opinion evidence regarding Plaintiff's physical limitations, the ALJ found Dr. Meisel's opinion that Plaintiff had no physical limitations “significantly persuasive, ” because, according to the ALJ, it was “consistent with unremarkable physical [CE] findings . . . .” (Id., at 1253.) Similarly, the ALJ found that Dr. Alpert's opinion that Plaintiff had no physical limitations was “substantially persuasive, ” as that portion of Dr. Alpert's opinion was, in the ALJ's view, “consistent with and supported by regular[] normal physical examinations . . . .” (Id.) On the other hand, the ALJ found Dr. Alpert's opinion that Plaintiff had marked limitation in ADLs “not persuasive, ” as “inconsistent with his opinion that [Plaintiff] could independently travel” and “unsupported by longitudinal treatment notes showing asymptomatic HIV . . . [and] numerous [ADLs] . . . .” (Id.)
As for the opinion evidence regarding Plaintiff's mental limitations, the ALJ found that Dr. Kushner's opinion had “limited persuasiveness, ” as it was purportedly “inconsistent” with Dr. Kushner's “largely normal” CE of Plaintiff, and because, “although the neurocognitive exam revealed moderate limitation as the tasks became more complex, the marked limitation [was] unsupported by longitudinal treatment notes showing few if any cognitive or memory deficits, numerous activities of daily living, and increased socialization and improvement and remittance of depression symptoms . . . .” (Id., at 1252-53.)
As to Dr. Schaich's opinion, the ALJ found “persuasive” the portions of that opinion that related to Plaintiff's ability to follow “simple direction and instructions and maintain[] concentration, persistence or pace, ” finding those portions “consistent with [CE] findings and supported by treatment notes, other opinion evidence, reported [ADLs] and hearing testimony.” (Id., at 1253.) In contrast, the ALJ found unpersuasive the remainder of Dr. Schaich's opinion regarding Plaintiff's “marked limitations, ” finding that this portion of the opinion was “not consistent with Dr. Schaich's examination or [Plaintiff's] reported one friend, okay family relationships, and ability to use public transportation independently, ” and was not “supported by relatively normal treatment notes, ” by an unspecified “State agency consultant opinion, ” or by Plaintiffs “reported [ADLs].” (Id.)
The ALJ also considered the three opinions of Dr. Kamran Rahmani (id., at 1253-54), the psychiatrist who co-signed the functional assessments prepared by both NP Stevenson and Santiago-Casiano (see id., at 2637, 3055, 3057). The ALJ did not acknowledge, however, that these were all co-signed opinions, two of which had apparently been authored by NP Stevenson, and the third by Santiago-Casiano. (See id., at 1253-54.) In any event, the ALJ found that all three of the opinions that Dr. Rahmani had adopted were “not persuasive” because, in the ALJ's view, they were “inconsistent with and unsupported by longitudinal treatment notes showing depressed mood and affect but otherwise normal mental status examinations, numerous [ADLs], and improvement and remittance of depression symptoms with conservative treatment compliance.” (Id., at 1254.) The ALJ further found that these three opinions were “unsupported by the State agency psychological consultant opinion” (presumably referring to the opinion of Dr. Harding) “and hearing testimony, ” and that the opinions were “grossly exaggerated.” (Id.)
The ALJ found that the opinions of the Dr. Harding and Dr. Saeed (neither of whom, it appears, examined Plaintiff), were, respectively, “persuasive” and “significantly persuasive.” (Id.)
The ALJ did not evaluate Dr. Weiss's opinion. (See generally id., at 1244-56.)
C. Steps Four and Five of the Sequential Evaluation
At Step Four, the ALJ concluded that Plaintiff had no past relevant work, because, “[although [Plaintiff] appeared to work at substantial gainful activity levels for several years, his testimony was vague as to what type of work he performed . . . .” (Id., at 1254.)
At Step Five, the ALJ found that Plaintiff was able to perform work existing in the national economy during the relevant period. (Id., at 1255.) In making this determination, the ALJ considered Plaintiffs age, education, and RFC, noting specifically that, on the date the application was filed, Plaintiff was 49 years old, which is defined as a “younger individual, ” but that he had “since changed age category to an individual closely approaching advanced age.” (Id., at 1254.) The ALJ also found that Plaintiff had “at least a high school education” and was “able to communicate in English.” (Id.) The ALJ noted that transferability of job skills was “not an issue because the [Plaintiff] [did] not have past relevant work.” (Id., at 1255.) Ultimately, the ALJ relied on the VE's testimony that Plaintiff could perform jobs such as “dishwasher, ” “hand packager, ” and “cook helper.” (Id.)
III. REVIEW OF THE ALJ'S DECISION
Plaintiff makes several arguments as to why the ALJ's decision should be reversed or, in the alternative, remanded for further proceedings. (See generally Pl. Mem.) While Plaintiff breaks his arguments out into four separate categories - asserting (1) that “the ALJ cherry-picked evidence at Step Three” of the five-step sequential evaluation (see Pl. Mem., at 18-19); (2) that the ALJ “substituted his own judgment for the medical opinions in the record” (see id., at 20-21); (3) that the ALJ “erred in weighing the opinion evidence” (see id, at 21-23); and (4) that the ALJ “relied on an incomplete RFC that fail[ed] to include all limitations” (see id., at 24-25) - the first three arguments all relate to the same core proposition, namely, that the ALJ erred in evaluating whether Plaintiff met the Paragraph B and Paragraph C criteria for Listings 12.04 (Depressive, bipolar and related disorders) and 12.06 (Anxiety and obsessive-compulsive disorders). Plaintiff also makes an argument in a footnote that the ALJ erred by failing to consider Listing 12.03 (Schizophrenia spectrum and other psychotic disorders). (Pl. Mem., at 18, n.36.)
A. The ALJ Erred in Evaluating the Paragraph B Criteria
Paragraph B (as applicable to Listings 12.04 and 12.06) requires a claimant to show “extreme limitation of one, or marked limitation of two, of the following areas of mental functioning”: (1) understand, remember, or apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt or manage oneself. (Pl. Mem., at 18 (citing 20 C.F.R. Pt. 404 Subpt. P, App'x 1); see also supra, at n.10.)
Here, the ALJ did not find that Plaintiff had an extreme or marked limitation in any of the relevant areas of mental functioning. With regard to the first area - understanding, remembering, or applying information - the ALJ found that Plaintiff had a “moderate” limitation. (R., at 1247.) The ALJ found that Plaintiff reported “having trouble remembering things and being able to understand English.” (Id.) In support of this conclusion, the ALJ stated that, while Plaintiff reported “difficulty handling his finances due to difficulty with memory, he was still able to watch television, count change, and navigate public transportation routes and schedules.” (Id.) Further, the ALJ relied on the fact that, “although [Plaintiff] demonstrated impaired memory at some [CEs], he also told consultative examiners he could manage his finances, and was still able to follow simple instructions, correctly solve simple calculations, and perform serial 3's.” (Id.) Finally, according to ALJ, Plaintiff was “able to understand questioning, recall information, and respond appropriately to questioning at the [H]earing.” (Id.)
With regard to the second area of functioning - the ability to interact with others - the ALJ found that Plaintiff had a “mild to moderate” limitation. (Id.) In support, the ALJ noted that Plaintiff had reported that, while “he did not go out much, ” “he was still able to maintain a friendship, use public transportation, shop in stores, and spend time with others.” (Id.) Despite “rarely disheveled appearance at examinations, ” the ALJ continued, Plaintiff “regularly demonstrated appropriate hygiene, ” “focused eye contact, ” “cooperative attitude, ” and “normal speech.” (Id.) Although Plaintiff reported having panic attacks with public transportation and around crowds, the ALJ noted that Plaintiff indicated the panic attacks had subsided after a medication adjustment. (Id.) Lastly, the ALJ relied on his perception that Plaintiff was “able to interact appropriately at the [H]earing.” (Id.)
With regard to the third area of functioning - the ability to concentrate, persist, and maintain pace - the ALJ found that Plaintiff had a “moderate” limitation. (Id.) On this point, the ALJ noted that, although Plaintiff reported having difficulty concentrating and handling stress and changes in routine, he was still able to “watch television, navigate public transportation routes, and count change.” (Id.) The ALJ further noted that, although Plaintiff “demonstrated impaired concentration at some [CEs], he was still able to follow simple instructions, correctly solve simple calculations, and perform serial 3's.” (Id.) The ALJ finally noted that Plaintiff could manage his finances, that he “demonstrated good attention and concentration at other examinations, ” and “was able to maintain focus and persist throughout the [H]earing.” (Id.)
Finally, with regard to the fourth area of functioning - the ability to adapt or manage oneself - the ALJ found that Plaintiff had only a “mild” limitation. (Id.) The ALJ again emphasized that Plaintiff was “able to live alone and use public transportation.” (Id.) He noted that, while Plaintiff told consultative examiners that, due to his anxiety, he did not drive, he also reported that he could “independently perform all personal care and [ADLs] and traveled internationally and locally independently.” (Id., at 1247-48.) The ALJ also again noted that Plaintiff was “able to comport himself appropriately at the [H]earing.” (Id., at 1248.)
1. The ALJ Erred in Evaluating the Opinion Evidence.
Although not the first argument set out in Plaintiff's brief, this Court turns first to the question of whether, in considering whether Plaintiff satisfied the Paragraph B criteria, the ALJ made legal errors by failing, as a general matter, to give proper consideration and weight to the available medical opinion evidence, as this analysis impacts whether, and to what extent, the ALJ may have made other errors.
a. The ALJ Should Have Given Separate Consideration to the Assessments of NP Stevenson and Santiago-Casiano.
At the outset, this Court has concern regarding how the ALJ considered the opinions of NP Stevenson and Santiago-Casiano. As discussed above, the ALJ ascribed each of these opinions to Dr. Rahmani, who signed them as a supervising psychiatrist. In principle, this was not necessarily improper, and, indeed, the formerly applicable “treating physician rule” dictated that medical opinions prepared by providers (like a LCSW) who would not have qualified under the rule as a “treating source” were to be evaluated as if made by the co-signing doctor, “unless evidence indicate[d] that the report [did] not reflect the doctor's own views.” See Ryan v. Comm'r of Soc. Sec., No. 18-CV-388-FPG, 2019 WL 2497904, at *4 (W.D.N.Y. June 17, 2019) (citing Djuzo v. Comm'r of Soc. Sec., No. 5:13-CV-272 GLS/ESH, 2014 WL 5823104, at *4 (N.D.N.Y. Nov. 7, 2014)). In this case, though, the last two of these opinions - authored nearly contemporaneously, in June 2019, by separate direct providers - were inconsistent with each other in potentially significant ways. Of particular note, there were areas of mental functioning (including the ability to “distinguish between acceptable and unacceptable work performance, ” and to “set realistic goals”) where NP Stevenson found that Plaintiff had a “marked” or “serious” limitation (see id., at 3048), while Santiago-Casiano found that he had no limitation (see id., at 3055). For this reason (and where it does not appear that Dr. Rahmani himself examined or treated Plaintiff), the differing opinions of the direct providers should have been considered separately by the ALJ, and the underlying clinical notes of each provider should have been separately reviewed to determine if either opinion was consistent with that underlying documentation. It was especially important here for the ALJ to undertake such a differentiated review, given that NP Stevenson and Santiago-Casiano each saw Plaintiff every few weeks during the relevant period and the record contains hundreds of pages of their separate treatment notes. (See generally R.)
The need for the ALJ to have conducted a separate analysis of the opinions of each of Plaintiff's direct mental-health providers is further underscored by the fact that, under the regulations applicable to the ALJ's determination, an NP is now considered an “acceptable medical source” for purposes of disability review (20 C.F.R. § 416.902(a)(7)). Further, while social workers such as Santiago-Casiano are still not considered acceptable medical sources, it has been held that the opinions of therapists should nonetheless be independently evaluated “on key issues such as impairment severity and functional effects.” VanGorden v. Astrue, No. 3:11-CV-1044 GLS, 2013 WL 420761, at *2 (N.D.N.Y. Feb. 1, 2013). Here, the ALJ barely gave separate mention to the opinion of Santiago-Casiano, much less any discussion of the weight that it should be afforded, which was improper. See Canales v. Comm'r of Soc. Sec., 698 F.Supp.2d 335, 344 (E.D.N.Y. 2010 (“While the ALJ was free to conclude that the opinion of a licensed social worker was not entitled to any weight, the ALJ had to explain that decision.”)); Michael K. v. Saul, No. 19-CV-0861F, 2021 WL 949169, at *8 (W.D.N.Y. Mar. 12, 2021) (“Licensed clinical social workers . . . are not considered ‘acceptable medical sources' for purposes of disability review . . . . [but ALJs] have a duty to discuss their opinions.”)
Under these circumstances, this Court finds that it was error for the ALJ to have failed to undertake any independent evaluation of NP Stevenson's and Santiago-Casiano's opinions.
Plaintiff does not make the argument that the ALJ erred in grouping together the two opinion of the two providers, but argues that the ALJ's finding that the opinions were “not persuasive, as they [we]re inconsistent with and unsupported by longitudinal treatment notes” was erroneous, and that the ALJ erred more generally in weighing the evidence and in evaluating the “supportability” and “consistency” factors. (See Pl. Mem., at 21-23.) Specifically, as pertains to the Paragraph B criteria, Plaintiff asserts that “treatment notes show limitations in all four Paragraph B categories.” (Id., at 21-22.)
Defendant argues that “a reasonable factfinder could have come to the same conclusion” regarding NP Stevenson's and Santiago-Casiano's opinions, and that, in any event, they used a different definition of “marked” and “extreme” limitations than those used in the relevant regulations. (Def. Mem., at 23.) In particular, Defendant asserts that the forms used by these providers “define an extreme limitation as one that affects an individual more than 20 percent of the workday or workweek” (Def. Mem., at 23 (citing R., at 2633, 3046, 3053)), whereas the “relevant SSA regulation[s] define an extreme limitation as one where ‘you are not able to function in this area independently, appropriately, and on a sustained basis'” (id. (citing 20 C.F.R. Part 404, Subpt. P, App'x 1)).
As discussed above, this Court agrees with Plaintiff that the ALJ erred in evaluating the supportability and consistency of NP Stevenson's and Santiago-Casiano's opinions, at least to the extent that the ALJ failed to analyze the opinions separately, in light of the clinical treatment notes that had been separately recorded by each of the providers. As for Defendant's argument regarding the appropriateness of the definitions used in the providers' assessments, this Court cannot evaluate the extent to which the ALJ did, or did not, rely on those definitions, where his opinion never addressed the matter.
Accordingly, I recommend that this matter be remanded with instructions to the ALJ to evaluate NP Stevenson's and Santiago-Casiano's assessments separately, applying the currently applicable factors for the evaluation of opinion evidence.
This Court also notes the ALJ's observation that, while NP Stevenson's first assessment (made in August 2018) found Plaintiff to have certain “extreme” limitations, her later assessment (made about 10 months later, in June 2019) found Plaintiff to have, at most, “marked” limitations. (See R., at 1253.) If, in the ALJ's view, the earlier medical opinion suggests disability, while the later one does not, then, by reference to the treatment notes, the ALJ should also be directed to evaluate whether, prior to any improvement in Plaintiff's condition, there was a continuous 12-month period in which he was unable to work. See, e.g., Sandra Lee M. v. Comm'r of Soc. Sec., 541 F.Supp.3d 277, 283 (W.D.N.Y. 2021) (“When deciding a disability claim, if a claimant is disabled at any point in time, the ALJ should consider not only whether Plaintiff was disabled at the time of the hearing, but also whether Plaintiff was entitled to disability benefits for any closed, continuous period of not less than 12 months, following the date of [his] claim.” (internal quotation marks and citation omitted)).
b. The ALJ Did Not Adequately Discuss His Reasons For Rejecting Portions of Dr. Schaich's Opinion.
Plaintiff also argues that the ALJ's “analysis of the most recent psychiatric CE [by Dr. Schaich] is [] deficient.” (Pl. Mem., at 23.) Dr. Schaich found that Plaintiff had two marked and two moderate limitations as to the Paragraph B criteria, and while the ALJ found that opinion “not persuasive, ” Plaintiff claims he did not conduct any analysis as to “consistency.” (Id.)
The ALJ found that the “portions of [Dr. Schaich's] opinion regarding simple direction and instructions and maintaining concentration, persistence or pace [were] persuasive, as they [were] consistent with consultative examination findings and supported by treatment notes, other opinion evidence, reported [ADLs], and hearing testimony, ” but that the “remainder of the opinion[] regarding marked limitations [was] not persuasive, ” as it was not consistent with Dr. Schaich's examination or Plaintiff's “reported one friend, okay family relationships, and ability to use public transportation independently, ” and was not “supported by the relatively normal treatment notes, the State agency consultant opinion, or reported ADLs. (R., at 1253.)
Although this Court agrees with Plaintiff that the ALJ erred in evaluating Dr. Schaich's opinion, it disagrees as to the type of error committed. In short, the ALJ did, in fact, address the “consistency” of Dr. Schaich's opinion, but he did not address its “supportability.” Specifically, the ALJ found that the opinion - or portions of it - was “not persuasive” because it was inconsistent with other portions of the record, which is what a “consistency” analysis requires. Vellone, 2021 WL 319354, at *6. On the other hand, the “supportability factor asks how well a medical source supported their opinion(s) with ‘objective medical evidence' and ‘supporting explanations, '” William B. J. v. Comm'r of Soc. Sec., No. 6:20-CV-0989 (LEK), 2022 WL 344059, at *4 (N.D.N.Y. Feb. 4, 2022), a question the ALJ did not attempt to answer. See id.
I therefore recommend that, on remand, the ALJ be directed to articulate his findings as to the “supportability” of Dr. Schaich's opinion.
c. The ALJ Failed To Provide Any Discussion of Dr. Weiss's Opinion.
The Court also finds that the ALJ erred by not providing any evaluation, at all, of the opinion of Dr. Weiss, the psychologist who conducted a three-day neuropsychological evaluation of Plaintiff and issued a rather thorough report. (See R., at 2713-2719.) On remand, I recommend that the ALJ also be directed to consider and address Dr. Weiss's evaluation.
2. The ALJ Cherry-Picked Evidence.
Plaintiff also makes more narrow arguments regarding ways in which the ALJ allegedly erred in evaluating the Paragraph B criteria. Most notably, in the lead-off point in Plaintiff's brief, he argues that the ALJ “cherry picked” the evidence at Step Three, “to support his finding that the Paragraph B criteria were not satisfied.” (See Pl. Mem., at 18-19.) On this point, Plaintiff highlights the fact that, while Dr. Schaich found “two marked limitations during the most recent” CE (id., at 19 (citing R., at 1905)) and both NP Stevenson and Santiago-Casiano also found more than two marked limitations in their June 2019 assessments (id. (citing R., at 2633-35, 3046-48, 3053-55)), the ALJ, in finding a lack of marked limitations, selectively relied “almost exclusively on portions of [Plaintiff's] self-reported Function Report, arbitrarily chosen information from three CEs, a few seemingly random treatment notes from 2012-2016, and [Plaintiff's] conduct” at the Hearing (id. (citations omitted)). Plaintiff also argues that, as part of the Step Three analysis, the ALJ “did not cite a single mental health treatment note from 2017 or later.” (Pl. Mem., at 19.) Defendant, by contrast, states that the ALJ “spent nearly two pages of his decision discussing plaintiff's mental health treatment from 2017-2019” (Def. Mem., at 16), although, as Plaintiff points out on reply, the pages of the ALJ's decision to which Defendant refers do not actually relate to the Step Three analysis (see Pl. Reply, at 4).
At the outset, this Court notes that, while the ALJ's Step Three analysis certainly does not cite to many of the mental health treatment notes from 2017 or later, it is incorrect to say that he did not cite to a single one. (See R., at 1247-48 (citing to Dr. Kushner's 2017 notes, Dr. Schaich's 2019 notes, Dr. Weiss's 2019 notes, and Santiago-Casiano's June 2019 note); see also Def. Mem., at 16-17.) Still, Plaintiff has argued persuasively that the ALJ selectively relied on the records which supported a finding that Plaintiff did not meet the Paragraph B criteria. The ALJ cited the same handful of notes for each of the Paragraph B criteria, many of which fell outside the relevant period. (See R., at 1247-48.) For instance, the ALJ cited to exhibit B1F, which is a CE from 2014; exhibit B4F, which contains medical records from 2015 to 2016; exhibits B13F and B14F, which are both from 2013; and exhibit B19F, which are records from 2012 to 2015. (See id.) Similarly, the ALJ selectively relied on the handful of records that indicated that Plaintiff was able to do things like use public transportation and answer questions at the Hearing, when the Record also contained ample evidence that Plaintiff had more serious limitations. (See id.) For just a few examples: Plaintiff reported having auditory hallucinations “of voices that [told] him to take all of his pills to try to kill himself.” (Id., at 1882.) Dr. Kushner found that Plaintiff's attention and concentration were “somewhat impaired, ” that his memory skills were “mostly impaired, ” and that his intellectual functioning was “below average.” (Id., at 1883-84.) NP Stevenson observed that Plaintiff “appear[ed] cognitively limited” (id., at 551), and that Plaintiff had difficulty understanding and following directions which impacted his ADLs (id., at 562). Plaintiff also reported having memory problems and forgetfulness, such that he would occasionally leave the stove on and forget his appointments. (Id., at 668.) Dr. Weiss noted concerns about Plaintiff's ability to “process auditory information and his ability to manage complex tasks.” (Id.) Dr. Weiss also noted that Plaintiff's speech was slow, that his thought process was “similarly slow” (id., at 669), that his language abilities were estimated to be at the age equivalent of approximately 14 years old (id., at 721), and that Plaintiff was poorly groomed (id., at 669).
As the ALJ improperly cherry-picked evidence to support his finding that Plaintiff did not satisfy the Paragraph B criteria, I further recommend that, on remand, the ALJ be directed to consider the entirety of the evidence in the record in making the Paragraph B assessment.
3. The ALJ Substituted His Own Judgment For the Medical Opinions in the Record.
Plaintiff additionally argues that the ALJ substituted his own judgment for the medical opinions in the Record, specifically with regard to his finding that Plaintiff had a “mild to moderate” limitation in the second Paragraph B category of being able to “interact with others” (Pl. Mem., at 20-21), and his finding that Plaintiff had a “mild” limitation in the fourth Paragraph B category of being able to “adapt or manage oneself” (id.) Defendant counters that the “numerous medical opinions in the Record regarding Plaintiff's mental limitations diverged significantly, ” and that, “[g]iven these genuine conflicts in the medical opinions, the ALJ - as factfinder - was required to resolve the conflicts in reaching a decision based on the [R]ecord as a whole.” (Def. Mem., at 22 (citing Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).)
Defendant is, of course, correct that the ALJ is charged with resolving conflicts in the Record, see Muro v. Berryhill, 412 F.Supp.3d 254, 263 (E.D.N.Y. 2019) (“genuine conflicts in the medical evidence are for the ALJ to resolve” (citing Gunter v. Comm'r of Soc. Sec., 361 Fed.Appx. 197, 199 (2d Cir. 2010) (Summary Order)), but the Record must contain medical opinion evidence to support his functional assessments, see Balsamo, 142 F.3d at 81 (“It is well-settled that the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.” (internal quotation marks and citation omitted)).
Here, with respect to the category of “interacting with others” (for which the ALJ found that Plaintiff had a mild to marked limitation) Plaintiff asserts that “none of the medical opinions noted a mild limitation.” (Pl. Mem., at 21.) For this category, Plaintiff states that NP Stevenson and Santiago-Casiano found “marked” and “extreme” limitations (id. (citing R., at 2634, 3047, 3054)), while medical consultants found “moderate” or “marked” limitations (see id. (citing, inter alia, R., at 1437 (Dr. Harding's finding of a “moderate” limitation), 1884 (Dr. Kusher's finding of a “moderate” limitation), 1904 (Dr. Schaich's finding of a “marked” limitation))).
While Plaintiff is correct regarding the opinions of Drs. Harding, Kushner, and Schaich, his assertion regarding the opinions of NP Stevenson and Santiago-Casiano is misleading. It is true that both NP Stevenson and Santiago-Casiano found marked and extreme limitations, however, their assessments were not broken down simply into the four Paragraph B criteria described above. Instead, for each Paragraph B criterion, NP Stevenson and Santiago-Casiano assessed Plaintiff's degree of impairment with respect to between seven and 12 specific functional abilities, including, for the criterion “interacting with others, ” the abilities to “[u]nderstand and respond to social cues” and “[c]ooperate and handle conflict with others.” (See, e.g., id., at 2634.) These providers, therefore, did not actually provide an overall assessment as to Plaintiff's limitations in interacting with others. It is also incorrect to state that NP Stevenson and Santiago-Casiano only assessed marked or extreme limitations in this general area, as NP Stevenson actually assessed mild, moderate, marked, and extreme limitations (see id., at 2634, 3047) and Santiago-Casiano assessed moderate and marked limitations, as well as no limitation at all in three of the subcategories (see id., at 3054).
Regardless, the ALJ's opinion is, at a minimum, internally inconsistent. The ALJ dismissed NP Stevenson's and Santiago-Casiano's 2019 opinions (as attributed to Dr. Rahmani) as “not persuasive, ” and yet found that Plaintiff had only a “mild” limitation in interacting with others - a finding supported by none of the other medical opinions. The ALJ cannot have it both ways. If the ALJ believes that there are sound reasons for disregarding the opinions of NP Stevenson and Santiago-Casiano, then he cannot rely on those opinions (to the exclusion of the other medical opinion evidence that he supposedly finds more persuasive) to support his Paragraph B assessment. While this Court agrees with Defendant that, in this case, there are conflicting opinions in the Record that the ALJ must resolve, and that, as a general matter, an ALJ may “choose between properly submitted medical opinions, ” this does not mean that an ALJ may “set his own expertise against that of a physician” who has submitted medical opinion evidence, Balsamo, 142 F.3d at 81 (internal quotation marks and citation omitted), or that the ALJ can make a medical finding as to a claimant's functional limitations that are supported only by a professional opinion the ALJ has rejected wholesale.
The issue of the ALJ's having substituted his own lay opinion for medical opinion evidence in the Record is even more apparent with respect to the fourth functional ability that he needed to assess under Paragraph B - the ability to “adapt or manage oneself.” There, Plaintiff correctly asserts that “[e]very single medical opinion in the record disagrees with [the ALJ's] assessment” that Plaintiff only had a “mild” limitation. (Pl. Mem., at 20-21 (emphasis added).) On this issue, Plaintiff points out that NP Stevenson and Santiago-Casiano found “marked” and “extreme” limitations in this category (R., at 2635, 3048, 3055), that Dr. Kushner found a “moderate to occasionally marked” limitation (id., at 1884), and that Dr. Schaich found a “marked” limitation (id., at 1905); and that only Dr. Harding, who apparently never examined Plaintiff, found nothing more than a “moderate” limitation (id., at 1437). In light of this, it is clear that, on this important point, the ALJ impermissibly substituted his own lay opinion for the medical opinions contained in the Record. See Genna v. Comm'r of Soc. Sec., No. 19-CV-6878 (PKC), 2021 WL 1176144, at *2 (E.D.N.Y. Mar. 28, 2021) (“An ALJ is prohibited from playing doctor in the sense that an ALJ may not substitute his own judgment for competent medical opinion.” (citing Lawton v. Comm'r of Soc. Sec., 351 F.Supp.3d 378, 383 (W.D.N.Y. 2019))).
As the ALJ improperly substituted his own lay opinion for that of the medical sources in finding that Plaintiff had a mild to moderate limitation with respect to his ability to “interact with others, ” and a mild limitation with respect to his ability to “adapt or manage [him]self, ” I recommend that, on remand, the ALJ be directed to re-evaluate the Paragraph B criteria based on the medical opinion evidence in the record.
B. The ALJ Also Erred in Evaluating the Paragraph C Criteria.
Plaintiff also argues that the ALJ did not adequately address whether Plaintiff met the Paragraph C criteria for Listings 12.04, and 12.06. (See Pl. Mem., at 19-20.) As set out above, these criteria are satisfied where a mental disorder is found to be “serious and persistent, ” requiring that the claimant had a medically documented history of the existence of the disorder over a period of at least two years, and evidence of both: (1) medical treatment, mental health therapy, psychosocial support, or a highly structured setting that is ongoing and that diminishes the symptoms and signs of the mental disorder; and (2) marginal adjustment, or minimal capacity to adapt to changes in his or her environment or to demands that are not already part of his or her daily life. (Id.) Plaintiff contends that it was insufficient for the ALJ merely to have stated that Plaintiff did not satisfy the Paragraph C criteria because he “was still able to live alone, prepare meals, [and] use public transportation.” (Pl. Mem., at 19 (citing R., at 1248).) Defendant, on the other hand, asserts that the ALJ “reasonably concluded that the evidence failed to establish that Plaintiff met the paragraph C criteria, ” because Dr. Harding concluded he did not, and because the evidence discussed by the ALJ demonstrated that Plaintiff did not have the requisite “marginal adjustment.” (Def. Mem., at 18.) Defendant further argues that there was no evidence “of changes in environment or demands causing significant exacerbations in [P]laintiff's symptoms or deteriorations in his functioning, such as suicidal ideation, delusions, or hospitalizations, ” and that “even when [his] partner died, [he] continued to function independently.” (Id.)
Given the ALJ's one-sentence analysis as to whether Plaintiff met the Paragraph C criteria, this Court cannot conclude that the ALJ's consideration and evaluation of those criteria was sufficient. In the absence of a meaningful discussion by the ALJ, I recommend that this issue also be reconsidered on remand. See, e.g., Jablonski v. Comm'r of Soc. Sec., No. 1:18-CV-00597 (EAW), 2019 WL 4439453, at *4 (W.D.N.Y. Sept. 13, 2019) (remanding for further proceedings where the ALJ failed to justify his findings under Paragraph C); Lewis v. Astrue, No. 11cv7538 (JPO), 2013 WL 5834466, at *31 (S.D.N.Y. Oct. 30, 2013) (same).
C. The ALJ Erred in Formulating at Least Part of Plaintiff's RFC.
As set out above, the ALJ found that Plaintiff had the RFC to perform
[A] full range of work at all exertional levels but with the following nonexertional limitations: he should avoid working at unprotected heights or with hazardous machinery. He can perform the full range of unskilled, repetitive, rote work with only the restriction that he cannot perform a job requiring high volume or fast-paced production quotas, and can only have occasional close interpersonal contact with the general public.(R., at 1248.) Plaintiff asserts that the RFC was incomplete because it failed to include all of his limitations, specifically containing “no limitation on interactions with coworkers and supervisors, ” “no limitation on absences, lateness, or time off-task, ” and “no limitations in English communication or manual dexterity.” (Pl. Mem., at 24-25.) In response, Defendant contends that the RFC is supported by Dr. Harding's opinion and by notes that demonstrated that Plaintiff had no problems getting along with others and attended a group HIV program three days a week. (Def. Mem., at 20.) Defendant also contends that the medical evidence did not support Plaintiff's assertion that he had impaired motor function in his hands (id., at 26), and that “lack of fluency in English is not a physical or mental impairment, and thus it is not properly considered in a [RFC] assessment” (id.). Defendant further notes that, even if Plaintiff “were unable to communicate in English, the [VE] testified that all of the jobs she identified at the hearing would be available to an applicant who could not speak English.” (Id. (citing R., at 1417-18).)
As to Plaintiff's limitation in his ability to interact with coworkers and supervisors, there are conflicting opinions in the record. Dr. Harding opined that Plaintiff was moderately limited in his ability to “accept instructions and respond appropriately to criticism from supervisors, ” but not significantly limited in his ability to “get along with coworkers or peers without distracting them or exhibiting behavioral extremes.” (R., at 1440.) Dr. Schaich found that Plaintiff had a marked limitation in the ability to interact with supervisors and coworkers. (Id., at 1990, 1904.) Dr. Kushner found a moderate limitation in this functional area. (Id., at 1884.) NP Stevenson found marked and extreme limitations in August 2018 (id., at 2634), but mild and moderate limitations in June 2019 (id., at 3047). Santiago-Casiano noted no limitations in this area. (Id., at 3054.) Where, as here, there is a genuine conflict in the record, it is the duty of the ALJ to resolve the conflict. Once again, however, the ALJ's determination that Plaintiff did not have any limitation on interacting with co-workers was supported only by a medical opinion (that of Santiago-Casiano) that he stated was “not persuasive.” I therefore recommend that, on remand, the ALJ be directed to re-evaluate Plaintiff's limitation in this regard, and to ensure that his determination is adequately supported by opinion evidence in the Record.
As for Plaintiff's purported limitation in his ability to avoid absences from work, lateness, and time off-task, the VE testified that an absence of more than one day per month, and an inability to stay on-task for at least 90 percent of the time, would preclude gainful employment for an individual with the RFC otherwise described by the ALJ. (See id., at 1419.) Although they did not opine as to how much time Plaintiff would spend “off task” on the days he was present at work, both NP Stevenson and Santiago-Casiano opined that Plaintiff would be late or absent “more than 4 days per month” (R., at 2635, 3048, 3055), and none of the other medical sources provided an opinion that addressed (much less contradicted) these providers on these particular points. If the ALJ had reason to discount the opinions of NP Stevenson and Santiago-Casiano, then, in light of the VE's testimony, he should have contacted the others who provided medical opinions, to seek their assessments of Plaintiff's limitations, if any, in these areas.
On remand, I recommend that he ALJ be directed that, if he chooses to diverge from the opinions of Plaintiff's providers and omit from Plaintiff's RFC any limitations that such providers have specifically identified, then he first take steps to ensure that there is medical opinion evidence in the Record to support his decision. Once again, the ALJ should be directed that he may not simply substitute his own lay opinion for that of a medical professional as to particular functional impairments.
As to Plaintiff's manual dexterity, Dr. Meisel found that Plaintiff's hand and finger dexterity was intact (R., at 1880, 1888), while Dr. Weiss found that Plaintiff's “manual dexterity performances were impaired” (id., at 2717-18). Plaintiff testified at the Hearing that he had a “thumb problem” with his left hand, but that he had no problems with his right hand. (Id., at 1402-03.) This conflict in the Record was the ALJ's to resolve, Jason R. v. Comm'r of Soc. Sec., No. 19-CV-1641 (FPG), 2021 WL 1131265, at *5 (W.D.N.Y. Mar. 24, 2021), and the ALJ's determination that Plaintiff was not limited in his manual dexterity was supported by Dr. Meisel's opinion and thus not erroneous.
Finally, as to Plaintiff's ability to speak English, the ALJ specifically asked the VE to “[a]ssume that the [Plaintiff] would be unable to speak English, ” and expressly inquired as to whether the “number of [available] jobs [would] be diminished” for that reason. (R., at 1418.) The VE responded, “No, Your Honor” (id.), and, for that reason, even if it was error for the ALJ to have omitted Plaintiff's language limitations in the RFC, such error was harmless.
For the above reasons, I recommend that the ALJ be directed to re-evaluate Plaintiff's
RFC with respect to any limitations on interacting with coworkers and supervisors, and on absences, lateness, and time off-task, so as to ensure that his RFC determination is fully supported by substantial evidence in the Record.
D. The ALJ Failed To Consider Whether Plaintiff's Impairments Met or Equaled Listing 12.03.
In a footnote, Plaintiff notes that the ALJ “did not consider whether [Plaintiff's] impairments meet or equal Listing 12.03 (schizophrenia spectrum and other psychotic disorders), even though he correctly identified schizoaffective disorder as one of [Plaintiff's] severe impairments, ” and that this was error. (Pl. Mem., at 18 n.36.) Defendant has not addressed this argument. (See generally Def. Mem.)
Courts have remanded social security decisions where an ALJ failed to consider a listing despite finding a “severe impairment” related to that listing. See, e.g., Rivera v. Comm'r of Soc. Sec., No. 19cv4630 (LJL) (BCM), 2020 WL 8167136, at *19 (S.D.N.Y. Dec. 30, 2020), report and recommendation adopted sub nom. Rivera v. Comm'r of Soc. Sec. Admin., 2021 WL 134945 (Jan. 14, 2021); Morales ex rel. Morales v. Barnhart, 218 F.Supp.2d 450, 459 (S.D.N.Y. 2002). Here, the ALJ found that Plaintiff had the “severe” impairment of schizoaffective disorder (R., at 1246), which falls under Listing 12.03 (20 C.F.R. § Pt. 404, Subpt. P, App. 1).
Accordingly, I recommend that, on remand, the ALJ be directed to consider whether Plaintiff met the criteria for Listing 12.03 during the relevant period. As the Paragraph B and C criteria discussed above apply to Listing 12.03 (just as they apply to Listing 12.04 and 12.06), the ALJ should also be directed to ensure that his consideration of Listing 12.03 is supported by a proper evaluation of those criteria.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff's motion for judgment on the pleadings (Dkt. 25) be granted, and that Defendant's cross-motion (Dkt. 30) be denied, and that the case be remanded for further proceedings. I further recommend that, on remand, the ALJ be directed:
(1) to conduct a more complete assessment of the opinion evidence in the Record, by
(a) evaluating NP Stevenson's and Santiago-Casiano's opinions separately, with separate consideration of whether those opinions are well supported by the two providers' underlying clinical treatment notes;
(b) considering the extent to which Dr. Schaich's opinion is supported by the objective medical evidence and explains the bases of its support; and
(c) evaluating Dr. Weiss's opinion;
(2) to review the entirety of available medical evidence, focusing on evidence from the relevant period, in assessing whether Plaintiff meets the Paragraph B criteria, rather than cherry-picking from a few treatment notes;
(3) to base his assessment of Plaintiff's Paragraph B limitations on medical opinions in the Record, rather than on his own lay opinion;
(4) to provide a detailed assessment as to whether Plaintiff satisfies the Paragraph C criteria for the pertinent listings;
(5) to re-evaluate Plaintiff's RFC, after properly considering the opinion evidence, and reconsider, in light of that evidence, whether the RFC should include limitations in Plaintiff's ability to interact with coworkers and supervisors and in his ability to be regularly present for work, to arrive to work on time, and to remain on-task during the work day; and
(6) to consider whether Plaintiff meets the criteria for Listing 12.03.
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 to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Valerie Caproni, United States Courthouse, 40 Foley Square, New York, New York 10007, if her Individual Practices require such courtesy copies. Any requests for an extension of time for filing objections must be directed to Judge Caproni. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).