Opinion
Civil Action 20 Civ. 7897 (AJN) (SLC)
01-31-2022
JOHANNA FERNANDEZ PENA, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
TO THE HONORABLE ALISON J. NATHAN, United States District Judge:
REPORT AND RECOMMENDATION
SARAH L. CAVE, United States Magistrate Judge.
I. INTRODUCTION
Plaintiff Johanna Fernandez Pena (“Ms. Pena”) commenced this action pursuant to Section 205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. § 405(g). Ms. Pena seeks review of the decision by the Commissioner (the “Commissioner”) of the Social Security Administration (“SSA”), denying her application for Disability Insurance Benefits (“DIB”) under the Act. Ms. Pena contends that the decision of the Administrative Law Judge dated May 24, 2019 (the “ALJ Decision”) was erroneous, not supported by substantial evidence, and/or contrary to law, and asks the Court to (a) reverse the Commissioner's finding that she was not disabled and remand to the Commissioner for an award of DIB benefits, or (b) remand for a new hearing. (ECF No. 1).
The parties have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). On August 13, 2021, Ms. Pena filed a motion for judgment on the pleadings (ECF No. 20 (“Ms. Pena's Motion”)), on November 15, 2021, the Commissioner cross-moved (ECF No. 24 (the “Commissioner's Motion”)), and on December 6, 2021, Ms. Pena filed a reply memorandum of law in further support of her Motion. (ECF No. 28). For the reasons set forth below, I respectfully recommend that Ms. Pena's Motion be DENIED, and the Commissioner's Motion be GRANTED.
II. BACKGROUND
A. Procedural Background
On December 8, 2017, Ms. Pena filed an application for DIB, alleging a disability onset date of October 30, 2017 (the “Onset Date”) due to Crohn's disease, small bowel obstruction, adhesion, tuberculosis, acute intestinal obstruction, and latent tuberculosis. (Administrative Record (ECF No. 16 (“R.”) 246-43, 259-60, 273). On March 14, 2018, the SSA denied Ms. Pena's application. (R. 86-90). Ms. Pena requested a hearing before an ALJ. (R. 98-99). On April 22, 2019, ALJ David Suna (“ALI Suna”) conducted a video hearing from Jersey City, New Jersey, with Ms. Pena appearing in person in the Bronx, New York, represented by an attorney and with a Spanish interpreter (the “ALJ Hearing”). (R. 36-69). On May 24, 2019, ALJ Suna issued the Decision finding that Ms. Pena was not disabled under the Act. (R. 19-30). Ms. Pena timely requested that the Appeals Council review the ALJ Decision, which became the final decision of the Commissioner when the Appeals Counsel denied review. (R. 1-8, 238-41).
B. Factual Background
1. Non-medical evidence
Ms. Pena was born in 1970 and was 47 years old on the alleged onset date, October 30, 2017. (R. 44, 70, 259). She was born in the Dominican Republic, where she received an eighthgrade education. (R. 24, 46, 270). She came to the United States in 1994, and, after taking the citizenship examination in English, became a naturalized United States citizen in 2011. (R. 45). She is divorced and lives with her 22-year-old son in the Bronx, New York. (R. 44).
From August 2003 until November 2017, Ms. Pena worked as a home attendant, which involved providing basic medical care, administering medications, changing dressings, checking vital signs, assisting with medical equipment, ambulating patients, housekeeping, laundry, and shopping. (R. 47, 271, 290-91). She stopped working altogether on October 30, 2017 because of her medical conditions. (R. 47, 332).
Ms. Pena regularly travels by public transportation for doctors' appointments and meetings with her attorney. (R. 46).
2. Medical evidence
The parties have each submitted summaries of the medical evidence, which are presented in different formats but are largely consistent. (ECF Nos. 21 at 7-16; 25 at 7-17). The Court summarizes the medical evidence relevant to the ALJ Decision and the Court's review.
a. DIB Application & Function Report
Ms. Pena's claim for DIB was based on the following alleged impairments: Crohn's disease, small bowel obstruction, adhesion, tuberculosis, acute intestinal obstruction, and latent TB. (R. 47, 70-71, 259-60, 273).
In Ms. Pena's function report dated February 8, 2018, which her son completed (the “Function Report”), Ms. Pena stated that she had trouble sleeping due to pain and stress, and had to lie down after a few minutes of performing tasks around the home. (R. 282-83). She stated that her abdomen hurt when she would reach over to tie her shoe. (R. 283). The pain occasionally caused fevers. (R. 284). She was able to do light cleaning, ride in a car and use public transportation, and go shopping. (R. 284-85). Ms. Pena stated that lifting caused pain in her back and abdomen, and that standing or sitting for long periods of time caused pain. (R. 287). She could walk for 20 minutes before needing to rest. (R. 288).
b. Crohn's Disease
Garrett O. Lawlor, M.D., a gastroenterologist at New York Presbyterian Hospital/Milstein Pavilion (“NYPH”), treated Ms. Pena for Crohn's disease from 2017 through 2019. (R. 350, 38485, 560-78). Marcus Pereira, M.D. and Steven Lee-Kong, M.D., of Columbia University Medical Center (“CUMC”), also treated Ms. Pena during 2017. (R. 376, 384-85).
In January 2017, Ms. Pena first began showing symptoms that were later diagnosed as Crohn's disease. (R. 436). Crohn's disease “is a chronic disease that causes inflammation in [the] digestive tract.” Crohn's Disease, MEDLINE PLUS, https://medlineplus.gov/crohnsdisease.html (last visited Dec. 28, 2021). On February 21, 2017, Ms. Pena went to the Emergency Room at CUMC with abdominal pain, nausea, mild abdominal distension, and vomiting. (R. 416). She denied fever, chills, diarrhea, or other symptoms. (Id.) The attending physician described her as “well appearing, ” treated her conservatively with bowel rest, and discharged her the same day. (R. 416; see R. 436). A CT scan showed “multifocal small bowel obstruction.” (R. 421).
On May 2, 2017, Ms. Pena went to the Emergency Room at CUMC with abdominal pain that worsened after eating. (R. 409). She vomited several times in the Emergency Room, but had no fevers, chills, or diarrhea. (Id.) She was seen by a surgeon regarding complaints of mild epigastric pain. (R. 405-406). A May 3, 2017 CT scan showed suspected right renal cortical thinning and scarring. (R. 376). Her nausea, burping, and vomiting had subsided, and her abdomen was benign. (R. 406). She was treated conservatively with trial liquids, bowel rest, and discharged. (R. 406, 411).
On June 2, 2017, Ms. Pena was seen at CUMC, where a CT scan showed small bowel obstructions. (R. 401). A physical exam showed normal bowel sounds. (Id.) She was referred for a surgical examination “to assess and treat [the] obstruction.” (R. 402).
Reviewing a June 26, 2017 abdominal MRI, Dr. Lee-Kong observed “moderate bowel wall” swelling “and thickening throughout” the middle part of the small intestine, which was consistent with Crohn's disease. (R. 426).
Following a referral from Dr. Lee-Kong, Dr. Lawlor examined Ms. Pena on July 7, 2017. (R. 436). He noted her January, March, and May 2017 hospital visits were for “severe, acute onset generalized abdominal pain, ” and that she was “treated conservatively with bowel rest.” (!dL)
A colonoscopy performed by Dr. Lawlor on July 11, 2017 showed “excellent” bowel preparation, a normal colon, and “very mild” Crohn's disease, although there were indications of “previous more severe disease.” (R. 398-400, 441). Armando Del Portillo, M.D., who reviewed the biopsy of the colonoscopy results, observed “a moderately to severely active” chronic inflammation of her intestine, and concluded that the “overall findings [were] compatible with idiopathic inflammatory bowel disease, ” another term for Crohn's disease. (R. 433, 444).
See Inflammatory Bowel Disease (IBD), MAYO CLINIC, https://www.mayoclinic.org/diseases-conditions/inflammatory-bowel-disease/symptoms-causes/syc-20353315 (last visited Dec. 27, 2021).
On August 11, 2017, Ms. Pena reported to Dr. Lawlor that she experienced ongoing abdominal pain. (R. 436). Dr. Lawlor noted the confirmed diagnosis of Crohn's disease, and started her on a course of Remicade infusions. (Id.)
Remicade, known generically as Infliximab, works by “blocking the actions of a certain natural substance (tumor necrosis factor alpha) in the body . . . to decrease swelling” and weaken the immune system, to slow or stop damage from the underlying disease. See Remicade Vial - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-16554/remicade-intravenous/details (last visited Dec. 27, 2021).
On August 20, 2017, Ms. Pena went to the Emergency Room reporting abdominal pain, and exhibited inflammatory markers consistent with her diagnosis of Crohn's disease. (R. 390). She denied having diarrhea, blood in her stool, fever, or chills, although she did feel waves of nausea. (R. 392). Her abdominal exam was “benign.” (R. 394). She was discharged in stable condition and instructed to report to her primary care physician. (R. 391).
Ms. Pena's symptoms began to improve in September 2017, when Dr. Lawlor began to administer Remicade infusions every two weeks for six weeks. (R. 348, 350). On November 29, 2017, Ms. Pena presented at CUMC because her Isoniazid prescription had expired due to an insurance issue. (R. 386). She reported feeling “colder than normal, ” but denied having any other symptoms of Crohn's disease. (Id.)
On October 13, 2017, midway through her course of Remicade infusions, Ms. Pena reported to Dr. Lawlor that her abdominal pain was “improving, ” although she had “persistent pain” in her right flank, which he suspected could be related to kidney scarring. (R. 436).
On November 3, 2017, Ms. Pena reported to Dr. Lawlor “in mild distress, ” with “significant abdominal pain.” (R. 436). She described feeling three times per week like she was “‘suffocating' in her clothes because of the pressure on her abdomen.” (Id.) Dr. Lawlor continued the Remicade infusions, but changed them to monthly rather than biweekly, added Colace to soften her bowel movements, and directed her to consult with a nutritionist and nephrologist. (R. 437, 449, 560-61). In visits on November 27, 2017 and December 4, 2017, Steven Brandes, M.D., of CPMC, observed that Ms. Pena continued the infusions of Remicade, showed “[n]o acute distress, ” and was continuing to take Isoniazid, Motrin, and Pyridoxine. (R. 376, 379-80).
During a January 26, 2018 examination by Dr. Lawlor, Ms. Pena reported that the Remicade “was starting to help, ” but she had not had an infusion since November 3, 2017 due to a loss of insurance. (R. 436). She reported constipation and bloating. (Id.) Dr. Lawlor administered a Remicade infusion during the visit. (R. 437).
Despite a statement on February 20, 2018 that she could not “even tolerate having clothes on because of the pain” and could not sit, stand, or sleep due to her pain, (R. 299), on March 16, 2018, Ms. Pena reported to Dr. Lawlor that she was “[d]oing better, ” although she noticed increasing discomfort a few days before each infusion. (R. 561, 587). On April 10, 2018, Ms. Pena reported worsening symptoms of severe abdominal pain. (R. 560, 593). Dr. Lawlor stated that he was “a little worried that [her] symptoms [were] somewhat somatoform given the normal inflammatory markers, and a lack of objective findings (rash aside) and given previous good subjective response” to her Remicade infusions. (R. 587). He performed a CT scan, and opined that increasing her Remicade dosage would not have a beneficial impact, and instead, should be reduced. (Id.) On May 4, 2018, Ms. Pena reported that she was “feeling really well” and wanted to try bariatric surgery. (R. 560). A June 2018 colonoscopy was normal. (R. 560, 600).
On June 22, 2018, Ms. Pena reported to Dr. Lawlor that she had “no symptoms” until two days prior, when she began feeling pain in her upper left quadrant. (R. 587). Dr. Lawlor administered a Remicade infusion and suggested bentyl for the discomfort. (Id.)
On August 3, 2018, Dr. Lawlor discussed lowering her dose of Remicade infusions from 1060 mg to 800 mg “given her recent colonoscopy without active inflammation and high levels.” (R. 587). On September 28, 2018, Ms. Pena reported to Dr. Lawlor intermittent right flank pain, but that she was feeling well and had “no complaints.” (R. 560).
During a November 16, 2018 visit with Dr. Lawlor, Ms. Pena was “well” and having “intermittent abdominal pain” that was “unlikely related to Crohn[']s.” (R. 560). On January 11, 2019, Dr. Lawlor noted that she was “[d]oing well, ” and her Crohn's disease appeared to be in “clinical remission/stable” following the Remicade infusions. (R. 562).
c. Vertigo and Dizziness
Since 2017, Ms. Pena has experienced daily dizziness, triggered by walking or nausea. (R. 449). Sudden movement or stress triggered these “attacks.” (R. 630). In an April 12, 2019 evaluation, Natasha Rastogi, M.D. noted that Ms. Pena had both a history of frequent attacks of balance disturbance and tinnitus, dating back seven months. (R. 628-29, 632). Dr. Rastogi noted that Ms. Pena exhibited symptoms of vertigo, nausea and vomiting, malaise, photosensitivity, fatigue, visual disturbances, mood changes, and mental confusion. (R. 629). The attacks occurred two times per week and lasted up to two days, with Ms. Pena having warnings of the attacks a few minutes before they occurred. (R. 629-30). Dr. Rastogi diagnosed Ms. Pena with BPPV-benign paroxysmal positional vertigo-and opined that she would have psychological limitations on her ability to work, and could not push, pull, kneel, bend, or stoop. (R. 628, 632). Dr. Rastogi estimated that Ms. Pena was capable of low stress at work, but was likely to be absent from work more than three times per month. (R. 631). Dr. Rastogi also prescribed Meclizine. (R. 630).
Benign paroxysmal positional vertigo (BPPV), MAYO CLINIC, https://www.mayoclinic.org/diseases-conditions/vertigo/diagnosis-treatment/drc-20370060 (last visited Dec. 27, 2021).
d. Depression
On November 29, 2017, Dr. Rastogi noted that Ms. Pena reported that on more than half the days she felt down, depressed or hopeless, tired, problems with appetite, trouble concentrating; on several days little interest in doing things; nearly every day trouble sleeping (R. 387). She denied any suicidal ideations, and stated that her feelings were “likely related to her pain and chronic illnesses.” (R. 388).
On July 16, 2018, Ms. Pena underwent a mental health intake session at Metropolitan Center for Mental Health (“MCMH”), during which Ms. Pena reported that she had “been struggling emotionally to adjust to the change of lifestyle” since her Crohn's disease diagnosis. (R. 494). A mental status examination showed her to be alert, oriented, and able to relate. (R. 506). She reported one instance of feeling “better of[f] dead because her life has change[d] so much, ” but had no suicidal plan or intent. (Id.) Ms. Pena was diagnosed as having adjustment disorder with mixed anxiety and depressed mood, and depressive disorder, recurrent episode (moderate). (R. 459, 509). On September 10, 2018, Ms. Pena reported to Nicholas Figueroa, M.D., that since her diagnosis with Crohn's disease, she has had a “low mood with poor energy [and] poor sleep[].” (R. 471, 477). He diagnosed her as having depressive disorder due to another medical condition with depressive features. (R. 474). Dr. Figueroa prescribed Zoloft (25 mg) and trazodone (50 mg) to address her depressive symptoms, and advised her to continue therapy. (R. 475).
In an evaluation for bariatric surgery at CUMC on August 29, 2018, Ms. Pena reported a history of depression related to her Crohn's disease, but denied any additional mental health symptoms and indicated that she was meeting weekly with a mental health therapist. (R. 581). Following her mental health provider's approval, on September 26, 2018, Ms. Pena was cleared for bariatric surgery. (R. 583).
In a mental status examination on October 29, 2018, Dr. Figueroa found all of Ms. Pena's thought processes to be normal, without suicidal, homicidal, or violent ideations, and with fair judgment and insight, a fair mood, and a restricted affect. (R. 458-59). She reported to Dr. Figueroa that her prescriptions for Zoloft (25 mg), and trazodone (50 mg) had a “fair effect.” (R. 460). Although he noted that her condition was “improving, ” based on her statement that she continued to feel residual depressive symptoms, Dr. Figueroa increased her Zoloft dosage to 50 mg, and continued her prescription for trazodone. (Id.)
In an evaluation by a mental health therapist on November 5, 2018, Ms. Pena expressed her goal of alleviating or eliminating her depression and anxiety symptoms. (R. 481). The therapist noted that Ms. Pena was “cooperative and engaged” during the session and had “good support from her son.” (Id.) She set a course of weekly therapy sessions for one year. (R. 48182).
On December 10, 2018, Ms. Pena reported to Dr. Figueroa that she was “doing well on [her] medications, ” and had been able to sleep six hours per night, despite her Crohn's Disease, which usually made sleeping uncomfortable. (R. 463). Her mental status examination was unchanged, and he noted her condition was “improving” and did not change her medication dosage. (R. 469).
e. Obesity
References to Ms. Pena's obesity appear throughout the Record. For example, on November 29, 2017, Dr. Rastogi noted her morbid obesity and counseled her on diet and exercise. (R. 387-88). On July 16, 2018, Ms. Pena reported weight gain “due to her medical treatment.” (R. 496). As noted above, she was cleared for bariatric surgery in August 2018, but the Record does not indicate that the surgery was performed. (R. 583; see R. 25).
f. Back and knee pain
Since 2017, Ms. Pena has had low back pain at a level eight out of ten. (R. 448). Over-the-counter medications have provided some relief. (R. 386, 448).
g. John Fkiaras, M.D. - SSA Consultative Examiner
On February 6, 2018, at the request of the SSA, John Fkiaras, M.D., conducted a consultative examination of Ms. Pena. (R. 448). She stated that she was diagnosed with Crohn's disease in 2017, and had abdominal pain “almost on a daily basis” at a level seven or eight out of ten. (Id.) She reported nausea, vomiting once or twice a month, constipation, and mucus in her stools, but denied diarrhea or bloody stools. (Id.) She reported four hospitalizations at CUMC in 2017. (Id.) She described having difficulty walking two blocks, lifting more than a gallon of water, standing, and sitting. (Id.) She noted receiving Remicade infusions once per month. (Id.)
Ms. Pena informed Dr. Fkiaras that she cooked twice per week, cleaned, and did laundry once per week, shopped four times per week, showered and dressed daily, and watched television, listened to the radio, and read. (R. 449).
Dr. Fkiaras observed that Ms. Pena was in no acute distress, had a normal gait, and needed no help getting on and off the exam table or rising from a chair, but had some difficulty walking on her heels and toes and could squat four fifths of the way down. (R. 450). He observed right upper quadrant abdominal pain, but her bowel sounds were normal, her abdomen was soft, and he felt no masses. (Id.) He observed pain to palpitation in Ms. Pena's right lumbar region. (Id.)
Dr. Fkiaras diagnosed Ms. Pena with Crohn's disease, abdominal pain, nausea, vomiting, low back pain, latent tuberculosis, and dizziness. (R. 451). He provided the following medical source statement:
The claimant has a moderate limitation bending. The claimant has a moderate to marked limitation for repetitive heav[y] lifting, carrying, pushing, and pulling. The claimant has moderate schedule disruptions. The claimant has a moderate limitation standing extended periods. The claimant has a moderate limitation sitting extended periods.(R. 451).
h. R. Pradhan, M.D. - Disability Determination
On March 12, 2018, following a review of Dr. Fkiaras' examination and opinion, and Ms. Pena's treatment records, R. Pradhan, M.D. assessed her residual functional capacity and exertional limitations, and found Ms. Pena to be able to do the following: (i) occasional lifting or carrying up to 20 pounds; (ii) frequently lifting or carrying up to ten pounds; (iii) standing for about six hours in an eight-hour workday; (iv) sitting for about six hours in an eight-hour workday; (v) unlimited pushing; (vi) occasionally climbing ramps or stairs; (vii) occasionally climbing ladders, ropes, or scaffolds; and (viii) occasionally balancing, stooping, kneeling, crouching, or crawling. (R. 75-76). Dr. Pradhan noted that Dr. Fkiaras' opinion about Ms. Pena's abilities and limitations was “more restrictive” than his own opinion. (R. 77). Dr. Pradhan concluded that Dr. Fkiaras' opinion: relied heavily on Ms. Pena's subjective statements, which the evidence did not support; was based on the assessment of limitations from an impairment for which Dr. Fkiaras had not treated her; and overestimated her restrictions and limitations. (Id.) Accordingly, Dr. Pradhan concluded that Ms. Pena was capable of performing “light” work, and was not disabled. (R. 78).
C. Administrative Proceedings
1. ALJ Hearing
On April 22, 2019, ALJ Suna conducted the ALJ Hearing, with Ms. Pena, her attorney, and a Spanish interpreter present in person. (R. 38). Vocational Expert (“VE”) David Boatner also testified at the ALJ Hearing. (R. 38, 57-69).
a. Ms. Pena's testimony
At the beginning of the ALJ Hearing, Ms. Pena's attorney informed ALJ Suna that Ms. Pena's case was “well documented, ” and that there were “sufficient records” for the ALJ to rule on her application. (R. 43). Ms. Pena stated that she was five feet tall and weighed 255 pounds. (R. 45). She testified that she stopped working in June 2017 due to her medical condition and then tried to restart in October 2017, but stopped after ten days. (R. 47). The medical conditions that prevented her from working were intestinal obstructions, flare-ups of her Crohn's disease, and vertigo. (Id.)
During the ALJ Hearing, Ms. Pena felt “[a] lot of pain” in her abdomen from her Crohn's disease, such that she requested - and the ALJ granted - permission for her to stand for a few minutes. (R. 48). She described receiving Remicade “injections” lasting about two hours every six weeks, but described her discomfort as “constant.” (R. 49). On days when she felt discomfort while sitting or standing, she would lay down and take medication. (R. 49-50). In response to the ALJ's question about how often during the workday she needed to take breaks to go to the bathroom, Ms. Pena stated that “[i]t depends on how the pain starts affecting me.” (R. 50).
Every two to four days, Ms. Pena experienced vertigo, which caused vomiting and required her to lay down. (R. 51). She took medication, which made her feel better, although the symptoms could last up to two days. (Id.)
Ms. Pena attributed her back and knee pain to the steroids, which caused her pain and weight gain. (R. 51-52).
Ms. Pena testified that she was able to sit for 20 to 30 minutes before starting to feel discomfort, and then she would need to lay down, walk, or rub the afflicted area. (R. 52). She was able to walk for about 20 minutes. (R. 53). She had some difficulty bathing, and her niece or son did the cooking, cleaning, laundry, and shopping. (Id.)
Although she experienced depression, it did not stop her from working, rather, it was her “physical conditions” that stopped her from working. (R. 54-55). She testified that she was under Dr. Figueroa's care for her psychological problems, including insomnia, but with medication she had been able to sleep. (R. 55). She stated that one or two days per week, she woke up “really sad and depressed and down, ” and would cry a lot. (R. 56). She only had suicidal ideations once. (Id.)
b. VE testimony
The VE testified that Ms. Pena's prior position of home attendant was categorized in the Dictionary of Occupational Titles (“DOT”) as semi-skilled work requiring a medium level of strength. (R. 59). ALJ Suna then posed a hypothetical (“Hypothetical One”), that assumed an individual of Ms. Pena's age, education, and work history, who needed to do light work, and had the following additional limitations on ability: (i) only occasional climbing with ramps and stairs; (ii) never climbing ladders, ropes, or scaffolds; (iii) occasional balancing, stooping, kneeling, crouching, or crawling; (iv) no exposure to hazards; (v) limited use of the English language consisting of only simple messages and questions; and (vi) simple routine tasks. (R. 60). The VE testified that the individual in Hypothetical One could not perform Ms. Pena's past work of home attendant. (Id.) There were, however, “an abundance [of] job [] titles” in the “unskilled[/]light” category that the individual in Hypothetical One could perform, including housekeeping cleaner, gluer, and test strip inspector. (R. 61).
The ALJ then asked whether any sedentary jobs would be available for the individual in Hypothetical One. (R. 61). The VE said that there would be “135 unskilled sedentary job titles, ” but excluding those for which English fluency was required, 65 job titles remained, including table worker (24, 000 jobs in the nation), inspector checker (22, 000 jobs), and weight tester (12, 700 jobs). (R. 62). The VE further testified that having this individual alternate from sitting to standing every 30 minutes would not have an adverse impact on these positions, because “most employers recognize that sustain[ed] sitting is difficult for workers and the work is typically done on tables that would reasonably allow an opportunity to stand or sit to do the jobs, as long as the[worker] can stay on task.” (R. 63).
The ALJ then asked about “the maximum amount of time an individual can be off task in addition to normal breaks in an eight[-]hour work day and still be able to perform the six jobs [the VE] identified.” (R. 63). The VE referred to the results of a 2014 survey that workers doing “entry level unskilled work [can] be off task no more than about 4 percent to 7 percent of a given day.” (Id.) The VE clarified that seven percent, or about 30 minutes over an eight-hour workday, would not have an adverse effect on meeting the job requirements. (R. 64). He added that “the upper limit of tolerance is about one day a month not to go over eight absences in a rolling 12[-]month period.” (R. 65). The ALJ then asked about an individual who was off task 20 percent of the time in additional to normal breaks in an eight-hour workday, with 15 unscheduled absences in a year, which the VE testified, based on his experience, would be “work preclusive.” (Id.)
Ms. Pena's attorney asked the VE about a person who “has a condition that comes suddenly, only gives her a few minutes to prepare for it and occurs at least twice a week.” (R. 68). The VE responded that “from a behavioral standpoint if a person has anything that is going to take him from [] performing - even modest productions, they are eventually not going to be able to keep that job.” (Id.)
2. The ALJ Decision and Appeals Council Review
On May 24, 2019, ALJ Suna issued his Decision finding Ms. Pena not disabled and denying her application for DIB benefits. (R. 19-30). The ALJ followed the five-step disability determination process. (R. 20; see 20 C.F.R. § 404.1520(a)(4)(i)-(v)). As a preliminary matter, the ALJ determined that Ms. Pena met the insurance requirements through December 31, 2022. (R. 21).
At step one, Ms. Pena had not engaged in substantial gainful activity since the Onset Date. (R. 21). At step two, ALJ Suna determined that Ms. Pena had five severe impairments: (i) Crohn's disease; (ii) obesity; (iii) depressive disorder; (iv) anxiety disorder; and (v) BPPV. (R. 21).
At step three, however, ALJ Suna determined that none of Ms. Pena's impairments were of a severity to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526) (the “Listings”). (R. 22). In reaching that conclusion, the ALJ considered Listings 2.07 (disturbance of labyrinthine-vestibular function), Listing 5.06 (inflammatory bowel disease), Listing 12.04 (depressive, bipolar, and related disorders), and Listing 12.06 (personality and impulse-control disorders). (R. 22-24). In concluding that Ms. Pena did not meet Listing 2.07, the ALJ found that there was “no evidence of frequent attacks of balance disturbance, tinnitus, and progressive loss of hearing, nor is there any evidence of specific vestibular tests or audiometry.” (R. 22). The ALJ found that Listing 5.06 was not met because, despite the history of small bowel obstructions, there was “no evidence [Ms. Pena] has ever required intestinal decompression or surgery, ” and her treatment has been conservative. (Id.) As to obesity, for which there is not a specific Listing, the ALJ found that there was “no evidence to suggest that the functional effects of [her] obesity combine with her other impairments to meet or equal any medical listing.” (Id.) In evaluating Ms. Pena's psychiatric disorders, the ALJ determined that the “paragraph B” and “paragraph C” criteria for Listings 12.04 and 12.06 were not met because Ms. Pena's mental impairments did “not cause at least two ‘marked' limitations or one ‘extreme' limitation, ” and the evidence did “not show a medically documented history of the existence of the disorder over a period of at least [two] years” nor “consistent psychiatric treatment, mental health therapy, psychosocial supports, or a highly structured setting.” (R. 23). Although Listings 12.04 and 12.06 were not met, the ALJ did include in his residual functional capacity assessment “the degree of limitation [he] has found in the ‘paragraph B' mental functional analysis.” (R. 24).
Before moving to step four, the ALJ determined that Ms. Pena had the residual functional capacity (“RFC”):
to perform light work as defined in 20 CFR 404.1567(b) except she can perform no more than occasional climbing of ramps or stairs; never climbing ladders, ropes, or scaffolds; no more than occasional balancing, stooping, kneeling, crouching or crawling; she can have no exposure to hazards such as unprotected heights or moving mechanical parts; she can perform jobs that do not require fluent speech in English, but [Ms. Pena] can communicate simple messages and ask simple questions in English; she is limited to simple and routine tasks; she would be off-task 5% of the day in additional to normal breaks in an 8-hour workday (due to Crohn's related issues).(R. 24 (“Ms. Pena's RFC”)).
“Light work” requires the ability to stand for six hours total in an eight-hour workday. Disability Insurance: SSR 83-10: Titles II And XVI: Determining Capability To Do Other Work -- The Medical-Vocational Rules Of Appendix 2, SSA, https://www.ssa.gov/OP Home/rulings/di/02/SSR83-10-di-02.html (last visited Dec. 27, 2021); § 404.1567. Code of Federal Regulations: Physical Exertion Requirements, SSA, https://www.ssa.gov/OP Home/cfr20/404/404-1567.htm (last visited Dec. 27, 2021).
In determining Ms. Pena's RFC, ALJ Suna “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, ” as well as the medical opinions and administrative medical findings, consistent with SSA regulations. (R. 24). With respect to Ms. Pena's Crohn's disease, the ALJ noted her complaints of abdominal pain, nausea, and vomiting dating to early 2017, as well as her hospital admissions. (R. 25). The ALJ noted, however, that she was generally treated conservatively with bowel rest, and later with Remicade infusions, to which she “responded well” such that her Crohn's disease symptoms were “well-controlled” by “early-to-mid 2018.” (Id.)
The ALJ therefore concluded that her Crohn's disease was “adequately accommodated by the light exertional, postural, and environmental limitations” in Ms. Pena's RFC. (Id.) As to her obesity, the ALJ found it to be “a compounding factor to her other physical and mental impairments, ” but did not pose additional limitations beyond those set forth in Ms. Pena's RFC. (Id.) The ALJ noted twice-weekly BPPV attacks lasting up to two days, but noted that she had not undergone any diagnostic tests and was prescribed Meclizine, such that her condition was “adequately accommodated by the postural and environmental limitations” in Ms. Pena's RFC. (R. 26). Finally, the ALJ found that her impairments were “moderate” and “responded well to medications, ” such that no further limitations to Ms. Pena's RFC were needed. (Id.)
The ALJ considered the medical opinion evidence in the Record. ALJ Suna found Dr. Pradhan's opinion that Ms. Pena was capable of light work with occasional postural limitations to be “highly persuasive, ” well-supported by the evidence, and consistent with the Record as a whole - in particular with Ms. Pena's reports of improvements to her symptoms following the Remicade infusions, and indications that her Crohn's disease was in remission. (R. 26). The ALJ found Dr. Fkiaras' opinion only “somewhat persuasive, ” because the words “moderate” and “marked, ” used with respect to Ms. Pena's limitations, were undefined and did not “correlate with any specific exertional category.” (R. 27). The ALJ also found Dr. Fkiaras' opinion that greater limitations were needed was “inconsistent with the reports of improvement and denial of acute complaints” in Ms. Pena's treatment records since “early-to-mid 2018.” (Id.) Finally, the ALJ found Dr. Rastogi's opinion not “particularly persuasive or consistent” with the Record. (Id.) Although he considered the “particular insight” Dr. Rastogi might have as her treating physician, the ALJ noted that the treatment records did “not contain any complaints of constant, debilitating dizziness and the other symptoms” Ms. Pena described. (Id.) The ALJ also found Dr. Rastogi's asserted degree of limitations inconsistent with Ms. Pena's reported daily activities of “cooking, some household chores including sweeping, taking public transportation, and shopping.” (Id.)
At step four, the ALJ determined that Ms. Pena was unable to perform her past relevant work because he had found she was limited to “light work.” (R. 27-28). At step five, the ALJ determined that based on Ms. Pena's age, education, work experience, and RFC, light work jobs exist in sufficient numbers in the national economy that she could perform, such as housekeeping cleaner, gluer, and tester/inspector, as well as sedentary jobs, including table worker, inspector/checker, and weight tester. (R. 28-29). For these reasons, the ALJ determined that Ms. Pena was not disabled. (R. 29).
On July 28, 2020, the Appeals Council denied review, making the ALJ's Decision the final decision of the Commissioner. (R. 1-3).
III. LEGAL STANDARDS
A. Standard of Review
Under Federal Rule of Civil Procedure 12(c), a party is entitled to judgment on the pleadings if he or she establishes that no material facts are in dispute and that based on those facts he or she is entitled to judgment as a matter of law, Morcelo v. Barnhart, No. 01 Civ. 743 (RCC) (FM), 2003 WL 470541, at *4 (S.D.N.Y. Jan. 21, 2003), even after “drawing all reasonable inferences in favor of the nonmoving party.” Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999); see Fed.R.Civ.P. 12(c).
The Act provides that the Commissioner's findings “as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). A court may set aside the Commissioner's decision denying SSI benefits if it is not supported by substantial evidence or was based on legal error. See Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). Judicial review, therefore, involves two levels of inquiry. First, the Court must decide whether the ALJ applied the correct legal standard. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, No. 05 Civ. 4254 (SCR) (MDF), 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). Second, the Court must decide whether the ALJ's decision was supported by substantial evidence in a sufficiently developed record. Tejada, 167 F.3d at 774; Calvello, 2008 WL 4452359, at *8; Moran, 569 F.3d at 114. “In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.” Longbardi v. Astrue, No. 07 Civ. 5952 (LAP), 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (citation omitted). The substantial evidence test applies not only to the factual findings, but also to the inferences and conclusions drawn from those facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y. 1999). In determining whether the record contains evidence to support the denial of claims, the Court must consider the whole record, and weigh all evidence to ensure that the ALJ evaluated the claim fairly. See, e.g., Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999). The Commissioner, not the Court, resolves evidentiary conflicts and appraises the credibility of witnesses, including the claimant. See, e.g., Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
Moreover, disability-benefits proceedings are non-adversarial in nature, and therefore, the ALJ has an affirmative obligation to develop a complete record, even when the claimant is represented by counsel. See Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009). To this end, the ALJ must make “every reasonable effort” to help an applicant get medical reports from his or her medical sources. 20 C.F.R. § 404.1512b. Ultimately, “[t]he record as a whole must be complete and detailed enough to allow the ALJ to determine the claimant's residual functional capacity.” Casino-Ortiz v. Astrue, No. 06 Civ. 155 (DAB) (JCF), 2007 WL 2745704, at *7 (S.D.N.Y. Sept. 21, 2007). When there are inconsistencies, gaps, or ambiguities in the record, the regulations give the ALJ options to collect evidence to resolve these issues, including recontacting the treating physician, requesting additional records, arranging for a consultative examination, or seeking information from others. See 20 C.F.R. § 404.1520(b).
The Act authorizes a court, when reviewing decisions of the SSA, to order further proceedings: “[t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see Butts v. Barnhart, 388 F.3d 377, 382 (2d Cir. 2004). If “there are gaps in the administrative record or the ALJ has applied an improper legal standard, ” the Court will remand the case for further development of the evidence or for more specific findings. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)). Remand is “particularly appropriate” where further findings or explanation will clarify the rationale for the ALJ's decision. Pratts, 94 F.3d at 39. If, however, the reviewing court concludes that an ALJ's determination to deny benefits was not supported by substantial evidence, a remand solely for calculation of benefits may also be appropriate. See, e.g., Butts, 388 F.3d at 386.
B. Eligibility for Benefits
For purposes of DIB benefits, one is “disabled” within the meaning of the Act, and thus entitled to such benefits, when she is “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(3)(A). The Act also requires that the impairment be “of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 1382c(3)(B). In reviewing a claim of disability, the Commissioner must consider: “(1) objective medical facts; (2) diagnoses or medical opinions based on those facts; (3) subjective evidence of pain and disability testified to by claimant and other witnesses; and (4) the claimant's background, age, and experience.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988).
Under the applicable regulations, an alleged disability is evaluated under the sequential five-step process set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v). The Second Circuit has described the process as follows:
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on the medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the Claimant could perform.Bush v. Shalala, 94 F.3d 40, 44-45 (2d Cir. 1996) (quoting Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983)).
At the first four steps, the claimant bears the burden of proof. At the fifth step, the burden shifts to the Commissioner to demonstrate that there are jobs in the national economy that the claimant can perform. See, e.g., Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). In meeting the burden of proof at the fifth step, the Commissioner can usually rely on the Medical-Vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, known as “the Grid.” Zorilla v. Chater, 915 F.Supp. 662, 666-67 (S.D.N.Y. 1996).
C. Evaluation of Medical Opinion Evidence
For benefits applications filed before March 27, 2017, the SSA's regulations required an ALJ to give more weight to those physicians with the most significant relationship with the claimant. See 20 C.F.R. § 404.1527; see also Taylor v. Barnhart, 117 Fed.Appx. 139, 140 (2d Cir. 2004). Under this “Treating Physician Rule, ” an ALJ was required to “give good reasons” Kevin E. v. Comm'r of Soc. Sec., No. 1:19-CV-593 (EAW), 2021 WL 1100362, at *4 (W.D.N.Y. Mar. 23, 2021) (quoting former 20 C.F.R. § 404.1527(c)(2)), if he or she determined that a treating physician's opinion was not entitled to “controlling weight, ” or, at least, “greater weight” than the opinions of non-treating and non-examining sources. Gonzalez v. Apfel, 113 F.Supp.2d 580, 588-89 (S.D.N.Y. 2000). In addition, under the Treating Physician Rule, a consultative physician's opinion was generally entitled to “little weight.” Giddings v. Astrue, 333 Fed.Appx. 649, 652 (2d Cir. 2009).
On January 18, 2017, the SSA published comprehensive revisions to the regulations regarding the evaluation of medical evidence, revisions that were effective on March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 F. R. 5844-01, 2017 WL 168819 (Jan. 18, 2017). These new regulations reflect a move away from a perceived hierarchy of medical sources. See id. The regulations now provide 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. § 404.1520c(a). See Young v. Kijakazi, No. 20 Civ. 3604 (SDA), 2021 WL 4148733, at *9 (S.D.N.Y. Sept. 13, 2021). Instead, an ALJ must consider all medical opinions in the record and “evaluate their persuasiveness” based on five “factors”: (1) supportability, (2) consistency, (3) relationship of the source with the claimant, (4) the medical source's specialization, and (5) any “other” factor that “tend[s] to support or contradict a medical opinion[.]” 20 C.F.R. § 404.1520c(c)(1)-(5).
The new regulations define “prior administrative medical finding” 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; (iv) If you are a child, statements about whether your impairment(s) functionally equals the listings in Part 404, Subpart P, Appendix 1; (v) If you are an adult, your [RFC]; (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).
The ALJ's duty to articulate a rationale for each factor varies. 20 C.F.R. § 404.1520c(a). 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. § 404.1520c(b)(2); see Young, 2021 WL 4148733, at *9 (describing supportability and consistency as “the most important” of the five factors). As to supportability, “the strength of a medical opinion increases as the relevance of the objective medical evidence and explanations presented by the medical source increase.” Vellone v. Saul, No. 20 Civ. 261 (RA) (KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021) (citing 20 C.F.R. § 404.1520c(c)(1)), adopted by, 2021 WL 2801138 (S.D.N.Y. July 6, 2021). Consistency “is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record.” Id.; see 42 U.S.C. § 423(f) (requiring ALJ to base decision on “all the evidence available in the” record).
As to the three remaining factors-relationship with the claimant, specialization, and “other”-the ALJ is required to consider, but need not explicitly discuss them, in determining the persuasiveness of the opinion of a medical source. 20 C.F.R. § 404.1520c(b)(2). If the ALJ finds two or more medical opinions to be equally supported and consistent with the record, but not identical, the ALJ must articulate how he or she considered those three remaining factors. See id. § 404.1520c(b)(3).
Several opinions among the district courts within the Second Circuit applying the new regulations have concluded 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.” Acosto Cuevas v. Comm'r of Soc. Sec., No. 20 Civ. 502 (AJN) (KHP), 2021 WL 363682, at *9 (S.D.N.Y. Jan. 29, 2021) (surveying district court cases in the Second Circuit considering the new regulations); see Prieto v. Comm'r of Soc. Sec., No. 20 Civ. 3941 (RWL), 2021 WL 3475625, at *9 (S.D.N.Y. Aug. 6, 2021) (noting that under both the Treating Physician Rule and the new regulations, “an ALJ's failure to properly consider and apply the requisite factors is grounds for remand.”); Dany Z. v. Saul, No. 2:19-CV-217 (WKS), 2021 WL 1232641, at *12 (D. Vt. Mar. 31, 2021) (surveying Second Circuit district courts that “have concluded that the factors are very similar to the analysis under the old [Treating Physician] [R]ule”); Andrew G. v. Comm'r of Soc. Sec., No. 3:19-CV-942 (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 also 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 ALJ with instructions to provide explicit discussion of supportability and consistency of two medical opinions, because ALJ's “mere[] state[ment]” that examining physician's opinion was not consistent with overall medical evidence was insufficient).
D. Assessing a Claimant's Subjective Allegations
In considering a claimant's symptoms that allegedly limit his or her ability to work, the ALJ must first determine “whether there is an underlying medically determinable physical or mental impairment(s) -i.e., an impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques - that could reasonably be expected to produce the claimant's pain or other symptoms.” 20 C.F.R. § 404.1529(c). If such an impairment is found, the ALJ must next evaluate the “intensity, persistence, and limiting effects” of the claimant's symptoms to determine the extent to which they limit the claimant's functional limitations. 20 C.F.R. § 404.1529(c)(1). To the extent that the claimant's expressed symptoms are not substantiated by the objective medical evidence, the ALJ must evaluate the claimant's credibility. See Meadors v. Astrue, 370 Fed.Appx. 179, 183-84 (2d Cir. 2010); Taylor v. Barnhart, 83 Fed.Appx. 347, 350-51 (2d Cir. 2003).
Courts have recognized that “the second stage of [the] analysis may itself involve two parts.” Sanchez v. Astrue, No. 07 Civ. 931 (DAB), 2010 WL 101501, at *14 (S.D.N.Y. Jan. 12, 2010). “First, the ALJ must decide whether objective evidence, on its own, substantiates the extent of the alleged symptoms (as opposed to the question in the first step of whether objective evidence establishes a condition that could ‘reasonably be expected' to produce such symptoms).” Id. “Second, if it does not, the ALJ must gauge a claimant's credibility regarding the alleged symptoms by reference to the seven factors listed [in 20 C.F.R. § 404.1529(c)(3)].” Id. (citing Gittens v. Astrue, No. 07 Civ. 1397 (GAY), 2008 WL 2787723, at *5 (S.D.N.Y. June 23, 2008)). These seven factors include: (1) an individual's daily activities; (2) the location, duration, frequency and intensity of pain or other symptoms; (3) factors that precipitate and aggravate those symptoms; (4) the type, dosage, effectiveness, and side effects of medication that the individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, that the individual receives or has received for pain or other symptoms; (6) measures other than treatment the individual uses or has used to relieve pain or other symptoms; and (7) other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3); see Bush, 94 F.3d at 46 n.4. If the ALJ does not follow these steps, remand is appropriate. Sanchez, 2010 WL 101501, at *15.
IV. DISCUSSION
A. The ALJ's Determination of Ms. Pena's RFC Is Supported By Substantial Evidence.
1. The parties' arguments
a. Ms. Pena's arguments
Ms. Pena argues that the ALJ's determination of her RFC was not supported by substantial evidence in four respects. First, she maintains that the ALJ failed to consider the evidence that she would be absent from any job more than eight times in a twelve-month period. (ECF Nos. 21 at 18; 28 at 4-5). Second, she contends that the evidence shows that she would not be able to meet the daily time requirements. (ECF No. 21 at 18-19). Third, she criticizes the ALJ's heavy reliance on Dr. Pradhan's opinion, which she contends is “internally inconsistent and does not provide substantial evidence” in support of the ALJ's Decision, and is entitled to less weight because he did not examine her personally. (Id. at 19; ECF No. 28 at 3). Fourth, she contends that the ALJ ignored the evidence that her twice-weekly vertigo attacks would prevent her from working “at pace.” (ECF No. 21 at 21; see ECF No. 28 at 6).
b. The Commissioner's arguments
The Commissioner rejects Ms. Pena's assertion that her treatment regimen would cause her to be excessively absent on either an annual or a daily basis as unsupported by any evidence. (ECF No. 25 at 26-27). As to Ms. Pena's criticism of the ALJ's reliance on Dr. Pradhan, the Commissioner notes that, as the State agency expert, his opinion may constitute substantial evidence in support of the ALJ's determination of Ms. Pena's RFC, and his opinion was consistent with the evidence showing Ms. Pena's responsiveness to the treatment for her Crohn's disease. (Id. at 20-22). Finally, the Commissioner discusses the evidence that supports the ALJ's conclusion that vertigo did not impose any additional limitations beyond those in Ms. Pena's RFC. (Id. at 22-23).
2. Analysis
The Court finds that the ALJ's determination of Ms. Pena's RFC is supported by substantial evidence. Taking Ms. Pena's first, second, and fourth arguments together, the Court rejects her contention that she would have excessive absences on a daily and annual basis that would prevent her from performing light work. As an initial matter, the ALJ did consider Dr. Rastogi's opinion that Ms. Pena would be absent from work for more than three days per month and found it both unpersuasive and inconsistent with the evidence of Ms. Pena's ability to perform her daily activities, as well as the absence of any evidence that Dr. Rastogi ordered additional testing or referred Ms. Pena to a specialist for vertigo. (R. 27). The ALJ also extensively questioned the VE about the impact of varying levels of required absences on the availability of appropriate jobs. (R. 63-68). Therefore, this case is distinguishable from those in which courts have found that ALJs erred in completely failing to consider anticipated work absences. See Iglesias-Serrano v. Colvin, No. 16 Civ. 418, 2016 WL 7441697, at *8 (S.D.N.Y. Dec. 23, 2016) (finding that “ALJ's failure to even address [both] th[e] issue of how much time Plaintiff would miss in a month based on her ailments[, ]” and VE testimony that there would be no unskilled sedentary work for someone absent more than once per month, was in error); Gallagher v. Astrue, No. 10 Civ. 8338 (LTS) (AJP), 2012 WL 987505, at *22 (S.D.N.Y. Mar. 22, 2012) (finding that the ALJ erred in “fail[ing] to address this issue [claimant's number of monthly absences] at all in determining that [he] was capable of performing his past relevant work”), adopted by, 2012 WL 1339357 (S.D.N.Y. Apr. 17, 2012).
Although the Record corroborates Ms. Pena's assertion that she continued to receive Remicade infusions about every six weeks, with each infusion taking about two hours, (R. 49), the Record does not contain any evidence supporting her contention that additional “travel, wait and recovery time . . . means that the treatment is likely to take all day, necessitating missing a day of work for each treatment.” (ECF No. 21 at 18). In addition, as the Commissioner points out, Ms. Pena “cites no evidence whatsoever in support of her assertion that she could only receive infusion therapy during traditional business hours or that she would be unable to work the entire [] day she received treatment.” (ECF No. 25 at 26). The Record also indicates that, by January 2019, the infusion schedule decreased to every eight weeks, (see R. 437, 562-63), such that even if Ms. Pena were correct that she would be absent for some portion of the treatment days, the number of absences per year would be equal to or less than the eight absences the VE testified as being preclusive. (R. 65).
In her Reply, Ms. Pena belatedly cites to several websites supporting her assertion that she “would lose a day's work when she receives an infusion.” (ECF No. 28 at 5). Given that ALJ Suna did consider Ms. Pena's possible absences in determining her RFC, (see R. 27, 63-68), the Court finds that there is “[n]o reasonable possibility” that this “new evidence, submitted in reply, would have influenced the Commissioner to decide [her] application differently.” Goins v. Comm'r of Soc. Sec., No. 12 Civ. 9204 (RA) (KNF), 2014 WL 2180536, at *7 (S.D.N.Y. May 20, 2014), adopted by, 2014 WL 3375009 (S.D.N.Y. July 8, 2014).
Similarly, Ms. Pena does not point to any evidence in the Record to support her assertion that she would be off-task more than seven percent per workday. (ECF No. 21 at 17-18). The ALJ confirmed during the VE's testimony that seven percent per day amounted to 30 minutes, in addition to normal breaks, and that it would be acceptable for Ms. Pena to alternate between sitting and standing at her workstation if she felt discomfort. (R. 64). The ALJ then took this testimony into account in his determination of Ms. Pena's RFC that “she would be off-task 5% of the day in addition to normal breaks in an 8-hour workday (due to Crohn's related issues).” (R. 24). Ultimately, it was Ms. Pena's “burden to prove a more restrictive RFC than the RFC assessed by the ALJ, ” and she has failed to sustain that burden by pointing to particular evidence in the Record. Lesanti v. Comm'r of Soc. Sec., 436 F.Supp.3d 639, 650 (W.D.N.Y. 2020) (citing Smith v. Berryhill, 740 Fed.Appx. 721, 726 (2d Cir. 2018)).
In addition, the ALJ properly applied the new regulations in evaluating Dr. Rastogi's opinion that Ms. Pena would be absent more than three times per month and finding it unpersuasive and inconsistent with and unsupported by the Record. See 20 C.F.R. § 404.1520c. The ALJ did recognize as an initial matter that Dr. Rastogi, as Ms. Pena's treating physician, might have particular insight into her conditions, but nevertheless found Dr. Rastogi's opinion was contradicted by the fact that she had not ordered any additional testing or referred Ms. Pena to a specialist for vertigo, as well as by Ms. Pena's ability to perform her daily activities, including some cooking, cleaning, shopping, and taking public transportation, and by the absence of treatment records showing Ms. Pena had complained of the “constant, debilitating dizziness and other symptoms” that Dr. Rastogi included in her opinion. (R. 27). It is also notable that Ms. Pena did not describe any such symptoms in her pre-bariatric surgery psychological evaluation. (R. 581, 604-09). Given the absence of medical evidence supporting Dr. Rastogi's opinion, the ALJ appropriately discounted it. Roma v. Astrue, 468 Fed.Appx. 16, 18-19 (2d Cir. 2012) (holding that ALJ properly declined to defer to treating physician's opinion that was materially inconsistent with substantial evidence). Therefore, the Court finds that the ALJ not only applied the correct analytical framework - i.e., the supportability and consistency analysis required by the new regulations -in determining that Dr. Rastogi's opinion was not persuasive, but also that that conclusion is supported by substantial evidence in the Record.
Similarly, the ALJ properly relied on Dr. Pradhan's opinion, even though he did not personally examine Ms. Pena, because it was consistent with the evidence in the Record. See Roma, 468 Fed.Appx. at 19 (finding that ALJ properly relied on non-examining state agency physician's opinion that was consistent with other record evidence); Cepeda v. Comm'r of Soc. Sec, No. 19 Civ. 4936 (BCM), 2020 WL 6895256, at *10-11 (S.D.N.Y. Nov. 24, 2020) (same). The Record included evidence that, despite Ms. Pena's acute small bowel obstruction episodes - for which she went to the emergency room in the first half 2017 and resulting the diagnosis of Crohn's disease -once she began treatment, including regular Remicade infusions, Ms. Pena generally reported feeling “well” or “really well, ” and had better control of her symptoms by October 2017. (R. 436-37, 561, 567, 573, 594, 620-21). While she had a flare-up of her symptoms in November 2017 (R. 561), by early 2018, she had resumed her infusions and reported doing better. (R. 561). By May 2018, she was “feeling really well, no symptoms, ” and a June 2018 colonoscopy showed “mild” Crohn's disease but was otherwise normal. (R. 441, 560). Into September 2018, she continued to feel well, without complaints, and only intermittent abdominal pain that a lab workup deemed “likely unrelated” to Crohn's disease. (R. 560). By January 2019, her Crohn's disease was deemed in “clinical remission.” (R. 562). Dr. Pradhan's opinion is also consistent with the evidence of Ms. Pena's ability to participate in daily activities, including some cleaning, shopping, cooking, and transportation. (R. 284-85). Because Dr. Pradhan's opinion is consistent with both the medical and non-medical evidence in the Record, the ALJ did not err in relying on that opinion in determining Ms. Pena's RFC.
In sum, there is substantial evidence to support the ALJ's determination of Ms. Pena's RFC, including Dr. Pradhan's opinion, Ms. Pena's testimony about her responsiveness to her medical treatments, the evidence of her daily activities, the treatment records showing that her Crohn's disease is well-controlled, and the absence of any reported severe vertigo symptoms. See Cepeda, 2020 WL 6895256, at *12 (finding that substantial evidence, including medical opinions, testimony, and treatment records, supported ALJ's RFC determination); Lesanti, 436 F.Supp.3d at 650 (same).
B. Additional Arguments
Ms. Pena recasts her criticism of the ALJ's RFC determination as an erroneous application of the new regulations for the evaluation of medical opinion evidence. (ECF No. 21 at 23-24). Despite extensively quoting the new regulations, which supplant the former Treating Physician Rule (see supra § III.C), Ms. Pena nevertheless reverts to the former rule in arguing that the ALJ failed to give proper deference to Dr. Rastogi's opinion as her treating physician. (ECF No. 21 at 24). Notwithstanding that Dr. Rastogi had been treating Ms. Pena for seven months, there is sparse mention in any treatment notes to support her diagnosis of BPPV, apart from a list “positive clinical findings, ” without elaboration, that supported that diagnosis and ruled out Meniere's Disease. (R. 628-29). For the reasons discussed above, including the absence of any laboratory test results or referral to a specialist, there is sufficient support in the Record for the ALJ's conclusion that Dr. Rastogi's opinion was “not particularly persuasive or consistent with the evidence of record.” (R. 27).
Ms. Pena also argues that the ALJ failed to consider - in the context of the overall Record - the evidence of Ms. Pena's improving physical and mental conditions. (ECF No. 21 at 24-25).
To the contrary, ALJ Suna did consider her improvements in comparison to the history of her Crohn's disease, beginning with his references to her hospitalizations in the first half of 2017, through her treatment by Dr. Lee-Kong, course of Remicade infusions, and up to and including the progress note in January 2019 that her disease was in “clinical remission.” (R. 25 (citing R. 562)). The ALJ concluded that, “while [Ms. Pena] may never be completely asymptomatic, her Crohn's disease has responded well to Remicade treatments and has been well-controlled since approximately early-to-mid 2018.” (Id.) This conclusion was also supported by Dr. Lawlor's skepticism about Ms. Pena's asserted symptoms given the negative lab test results in April 2018, and his notes in November 2018 that there were “no issues” of concern. (R. 567). The Court therefore rejects Ms. Pena's assertion that the ALJ erred in considering evidence of her improvement.
Finally, in her Reply, Ms. Pena advances the new argument that the ALJ “should have tried to further develop the record to reconcile differences in the evidence, ” and to obtain additional records from Dr. Rastogi. (ECF No. 28 at 4, 6). “[I]t is generally inappropriate to raise new arguments in a reply brief.” Filer v. Comm'r of Soc. Sec., 435 F.Supp.3d 517, 525 n.2 (W.D.N.Y. 2020) (internal citation omitted). The Court finds this argument unavailing because, at the ALJ Hearing, Ms. Pena's counsel admitted that “the case is well documented” and there were “sufficient records" for the ALJ to render a decision without waiting for any additional records. (R. 43). She has therefore arguably waived any challenge to the ALJ's development of the Record. See Watson v. Astrue, No. 08 Civ. 1523 (DAB) (JCF), 2010 WL 1645060, at *3 (S.D.N.Y. Apr. 22, 2010) (collecting cases holding that, at least where a claimant is represented by counsel before the ALJ, “failure to raise an issue before the ALJ waives that issue's review by the District Court”).
Nonetheless, the Court has reviewed the entire Record and for the reasons set forth above finds that ALJ Suna did fulfill his obligation and substantial evidence supports the ALJ's Decision.
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that Ms. Pena's Motion be DENIED and the Commissioner's Motion be GRANTED.
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NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Nathan.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).