Opinion
23 Civ. 6720 (NSR)(JCM)
07-03-2024
EDWIN RAFAEL HERNANDEZ PENA, Plaintiff, v. MARTIN O'MALLEY, Commissioner of Social Security, Defendant.
Honorable Nelson S. Roman, United States District Judge
REPORT AND RECOMMENDATION
JUDITH C. MCCARTHY, UNITED STATES MAGISTRATE JUDGE
Edwin Rafael Hernandez Pena (“Plaintiff”), proceeding pro se, commenced this action on July 31, 2023, pursuant to 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security (the “Commissioner”), which found that Plaintiff was not disabled and, thus, not entitled to Supplemental Security Income (“SSI”) under the Social Security Act. (Docket No. 1). Presently before the Court is Plaintiff's Complaint for Judicial Review of a Final Decision of the Commissioner (“Compl.”), (Docket No. 1), and the Commissioner's Brief in Opposition (“Comm'r Br.”), (Docket No. 16). For the reasons set forth herein, I respectfully recommend granting the Commissioner's motion for judgment on the pleadings.
Plaintiff did not file a brief, nor did he file a reply, as required by the Court's Standing Order. (Docket No. 3). On March 25, 2024, the Court instructed Plaintiff to file a response by April 8, 2024, or the matter will be deemed fully submitted. (Docket No. 18). To date, Plaintiff has not filed anything other than the original Complaint. Thus, the Court deems this matter fully submitted.
I. BACKGROUND
Plaintiff was born on October 7, 1977. (R. 30). Plaintiff applied for SSI on December 9, 2020, alleging a disability onset date of January 1, 2020. (R. 23). On March 17, 2021, Plaintiff's claim was initially denied. (R. 23). Plaintiff requested reconsideration, but the denial of his claim was upheld on June 17, 2021. (Id.). Plaintiff then requested an administrative hearing before an Administrative Law Judge (“ALJ”) on June 21, 2021. (Id.). The request was granted and ALJ John Carlton (“ALJ Carlton”) held a hearing on April 19, 2022. (R. 51-86). A supplemental hearing was held on November 22, 2022. (R. 37-50). ALJ Carlton issued a written decision on December 12, 2022, finding that Plaintiff was not disabled, and thus not entitled to SSI. (R. 17-36). Plaintiff requested review by the Appeals Council, which denied his request on June 2, 2023, (R. 1-6), making the ALJ's decision ripe for this Court's review.
Refers to the certified administrative record of proceedings relating to Plaintiff's application for Social Security benefits, filed in this action on November 15, 2023. (Docket No. 11). All page number citations to the certified administrative record refer to the page number assigned by the Social Security Administration (“SSA”).
A. Medical Evidence
1. Dr. Fernando Taveras and Candida Cartagena, LMHC
Dr. Fernando Taveras, and a mental health counselor associated with his office, Candida Cartagena, LMHC, treated Plaintiff from November 2017 through October 2022 for his diagnosis of “[m]oderate intellectual disabilities (F71), with an IQ level 35-40 to 50-55 and [m]ajor depressive disorder, recurrent, severe with psychotic symptoms (F33.3).” (R. 525); (see generally R. 498-516, 524-98). He was prescribed medication and participated in psychotherapy. (R. 525). Plaintiff's mother accompanied him on most visits. (See, e.g., R. 546, 553).
It is unclear how Dr. Taveras arrived at this IQ range, and appears to be his estimate, since he did not conduct a formal IQ test.
On April 23, 2018, Dr. Taveras noted that Plaintiff's behavior was “under control,” he had “no present distress,” and was tolerating his medication well, but that he was “low functioning.” (R. 546). Further, Dr. Taveras noted that Plaintiff's mood was normal, with no signs of depression, but that his attention and calculation were poor. (Id.). Dr. Taveras saw Plaintiff again on June 22, 2018. During that visit, Dr. Taveras noted that Plaintiff was depressed with poor sleep and motivation, but otherwise was “calm, attentive, fairly groomed,” and had an appropriate affect with “[n]o signs of hallucinations, delusions, bizarre behaviors, or other indicators of psychotic process.” (R. 548). He directed Plaintiff to continue his medication, including daily doses of 100 milligrams of sertraline and 200 milligrams of Seroquel. (R. 54849). On April 15, 2020, Plaintiff and his mother appeared for a virtual appointment with Dr. Taveras. (R. 550). Dr. Taveras reported that Plaintiff was complying with his medication regimen and had “good control of his behavior.” (Id.). Dr. Taveras saw Plaintiff again on October 28, 2020, at which time Plaintiff reported that he had run out of his medication, but Dr. Taveras observed that his behavior was under control, and that he had “no new emotional or somatic complaints.” (R. 553).
On January 27, 2021, Plaintiff and his mother attended a therapy appointment with Ms. Cartagena. (R. 498-99). Plaintiff's mother reported that Plaintiff was “isolating more,” and did not want “to talk in front of others because people w[ill] make fun of him,” but “describe[d] no depressive symptoms.” (R. 498). From January 2021 through October 2022, Plaintiff continued to see Ms. Cartagena and Dr. Taveras regularly and showed progress through his treatment. (R. 499-516, 556-98). For example, on April 7, 2021, Ms. Cartagena noted that Plaintiff's speech was “poorly modulated, and garbled,” (R. 502), but at his next appointment, on May 6, 2021, his “speech” improved and was “normal in rate, volume, and articulation and [wa]s coherent and spontaneous,” (R. 504) (noting Plaintiff's “[l]anguage skills are intact”). On October 1, 2021, Plaintiff expressed, for the first time, that he was “hearing voices [for] weeks, almost daily, commanding . . . him to harm himself,” but “that he won't act on the voice's commands, he has good emotional support, he's otherwise stable, [and] denied active plan[s] or ideas for harming himself.” (R. 514). In response, Dr. Taveras increased the dosage on Plaintiff's medication, (R. 515), and, by October 11, 2021, Plaintiff reported “hearing less voices,” (R. 569).
On November 29, 2021, Plaintiff reported “doing much better,” but still had some “neg[ative] thoughts.” (R. 573). A few months later, on March 28, 2022, Plaintiff had an appointment in which no new issues were raised, and Dr. Taveras instructed him to continue his current treatment regimen. (R. 579-80). Two months later, on May 11, 2022, Plaintiff reported having difficulty speaking, stating “I don't like talking much,” but that he otherwise “feel[s] fine.” (R. 585). On June 8, 2022, Ms. Cartagena noted that Plaintiff's “mother d[id] most of the talking because[,] due to [his] speech problem, he is not able to articulate words.” (R. 587). However, during his most recent visit, on October 28, 2022, Plaintiff reported “I feel good,” that he had no anger issues, some anxiety, no depression, and no “other symptoms of psychotic process ....” (R. 597). While he was “minimally communicative . . . and slow to respond,” Plaintiff was the person who spoke at his appointment. (Id.) (noting that “Mr. Hernandez stutters”). Plaintiff's diagnosis of “[m]ajor depressive disorder, recurrent, severe with psychotic symptoms,” remained “[a]ctive.” (R. 598). Dr. Taveras assessed Plaintiff's IQ as between “3540 to 50-55,” but did not administer an IQ test to confirm this estimation. (See, e.g., R. 597).
2. Consultive Examination: Arlene Broska, Ph.D.
On March 9, 2021, Dr. Arlene Broska performed a psychiatric consultive examination on Plaintiff. (R. 489-93). Plaintiff's mother attended the appointment, along with a Spanish interpreter. (R. 490). During his mental status examination, Plaintiff “tended to respond ‘yes' to every question that was asked[,] which resulted in his contradicting himself at times,” and “had problems with articulation,” which “[h]e attributed [] to his mandible surgery.” (R. 491). However, his “[r]eceptive and expressive language were adequate through the use of an interpreter,” and “[h]e was able to understand and answer all questions adequately.” (Id.). “His thinking was coherent and goal-directed,” and his attention and concentration were “intact during the clinical interview.” (R. 491-92). Plaintiff reported that he “dresses, bathes, and grooms himself,” but that “[h]is mother pays the bills,” and conducts “a[ll] activities of daily living” for him. (R. 492). “Vocationally, there [wa]s no evidence of limitation [in] understanding, remembering, or applying simple directions and instructions.” (Id.).
Dr. Broska found that Plaintiff had between a mild and moderate limitation in: (1) understanding, remembering, or applying complex directions and instructions; (2) using reason and judgment to make work-related decisions; (3) interacting adequately with supervisors, coworkers and the public; (4) sustaining concentration and performing a task at a consistent pace; (5) sustaining an ordinary routine and regular attendance at work; and (6) regulating emotions, controlling behavior, and maintaining well-being. (Id.). Dr. Broska found that Plaintiff had no limitations in his ability to maintain personal hygiene and appropriate attire, be aware of normal hazards, or take appropriate precautions. (Id.). Plaintiff was diagnosed with unspecified bipolar disorder, but Dr. Broska found that this “does not appear to be significant enough to interfere with [his] ability to function on a daily basis.” (R. 493). With treatment, Dr. Broska assessed Plaintiff's prognosis as “fair.” (Id.).
3. State Agency Consultants: Dr. K. Lieber-Diaz and Dr. M. D'Ortona
Dr. Lieber-Diaz and Dr. D'Ortona independently reviewed Dr. Broska's findings. On March 15, 2021, Dr. Lieber-Diaz found that Plaintiff had mild limitations in interacting with others, and moderate limitations in: (1) understanding, remembering or applying information; (2) concentrating, persisting or maintaining pace; and (3) adapting or managing oneself. (R. 91-92). On June 15, 2021, Dr. D'Ortona came to the same conclusions as Dr. Liber-Diaz. (R. 107-08).
4. Psychiatric Consultive Examination: Dr. Joshua Goldstein
Plaintiff saw Dr. Joshua Goldstein on December 2, 2021, for a second psychiatric consultive examination. (R. 517-20). At this time, Plaintiff was taking 100 milligrams of sertraline, 300 milligrams of Seroquel, and 250 milligrams of Depakote per day. (R. 518). Plaintiff did not speak during the evaluation and had difficulty understanding instructions. (Id.). However, his attention and concentration were good. (R. 519). Dr. Goldstein noted that Plaintiff's mother cooks, cleans, does laundry and shopping, and manages finances for him, and that he generally interacts only with his mother and sister. (Id.). Unless he has an appointment, he usually stays at home and watches television. (Id.).
Dr. Goldstein found that Plaintiff has a moderate limitation in: (1) understanding, remembering, or applying simple directions and instructions; (2) understanding, remembering, or applying complex directions and instructions; (3) using reason and judgment to make work-related decisions; (4) interacting adequately with supervisors, co-workers, and the public; (5) sustaining concentration and performance of a task at a consistent pace; (6) sustaining an ordinary routine and regular attendance at work; (7) regulating his emotions, controlling his behavior, and maintaining his well-being; and (8) being aware of normal hazards and taking appropriate precautions. (R. 519-20). Dr. Goldstein found no evidence supporting a finding that Plaintiff was limited in his ability to maintain personal hygiene and appropriate attire. (R. 520). He also administered the Test of Nonverbal Intelligence, Fourth Edition (“TONI-4”), which yielded a score of 74, reflecting a “poor range of intellectual functioning.” (R. 519). Overall, Dr. Goldstein opined that this “evaluation appear[s] to be consistent with cognitive problems and this may significantly interfere with [Plaintiff's] ability to function on a daily basis.” (R. 520).
B. Nonmedical Evidence
Plaintiff's mother is referred to by three names: (1) Alexandria Hernandez, (see generally Comm'r Br.); (2) Alexandra Hernandez, (R. 23, 430); and (3) Juana Pena Rodriguez, (R. 40). At the hearing, the ALJ specifically asked “what is the claimant's mother's name,” to which his attorney replied, “Juana Pena Rodriguez,” (R. 40). Thereafter, Plaintiff's mother referred to herself as “Juana Pena Rodriguez,” with the ALJ subsequently referring to her as “Ms. Pena.” (R. 69). Therefore, I will refer to her as “Juana Pena Rodriguez” and “Ms. Pena.”
On January 27, 2021, Plaintiff's mother, Juana Pena Rodriguez, completed a form detailing Plaintiff's activities of daily living. (R. 423-30); (see Docket No. 11 at 3) (detailing Form 4E, (R. 421-30), as “Activities of Daily Living, dated 01/27/2021”). The form notes that Plaintiff “was always shy,” and “can't talk well.” (R. 424). Moreover, Plaintiff “does not go anywhere by [him]self,” and, when he does go out, is “accompanied by [his] mother or [his] sister.” (Id.). The only people he speaks to are members of his “family when they come to [his] house.” (Id.). He does not count his money, and does not know how to cook, both of which are done by his mother. (R. 424-25). For his function report, his mother notes that he is depressed, unable to speak clearly, and has an IQ of 35-40. (R. 427).
On April 19, 2022, Ms. Pena testified at Plaintiff's hearing. (R. 69-75). She testified that she has lived with Plaintiff since he came to the United States of America in 2010, takes off work to take Plaintiff to his doctor's appointments, and that Plaintiff has trouble speaking. (R. 69-70). When the ALJ pointed out that Plaintiff speaks at some appointments, Ms. Pena said that it is actually her that is doing the speaking. (R. 72). Ms. Pena then clarified, stating that Plaintiff's sister attends the appointments and pretends to translate for him while she is the one actually talking. (R. 75). The ALJ then asked Ms. Pena about an IQ test conducted by one of Plaintiff's doctors, but Ms. Pena only remembered that “the doctor asked him some questions.” (R. 73).
Plaintiff's mother also testified at the supplemental hearing held on November 22, 2022. (R. 47-49). She testified that Plaintiff was born with jaw issues, which inhibits his articulation ability. (R. 47). Plaintiff did not go to special education and did not “want to” continue school past first grade, so he stopped. (R. 47-48). His mother testified that Plaintiff “doesn't understand when I speak to him, he gets very angry, he has mental problems, he tells me he hear[s] voices that tell him to go out to the street, where there's water, the train, and that is very dangerous for him.” (R. 48). Plaintiff's mother “applied for a home attendant to stay with him,” has her daughter-in-law stay with him, and accompanies him to doctor's appointments. (R. 48). She does not believe he would be able to sustain a regular job schedule. (R. 48).
2. Plaintiff's Testimony
On April 19, 2022, Plaintiff testified at his hearing through an interpreter. (R. 58-68). He stated that he lives with his mother, and does not work. (R. 58-59). Plaintiff testified that he cannot read or write in English or Spanish. (R. 60). He also testified that he does not believe he can work, because “[i]t scares me . . . [i]t makes me afraid the way the people are going to see me,” and he believes that his work will “be bad.” (R. 61-62). However, his attorney clarified that “my client had jaw surgery in 2013,” and that what he is trying to articulate is that he suffers, “for lack of a better term, a stigma.” (R. 62). The ALJ pointed out to Plaintiff that he has “spoken to doctors,” and asked whether there is a reason he speaks sometimes but does not speak at other times. (R. 66). Plaintiff responded that “there's days that I don't want to talk to anyone.” (R. 66). He stated that he watches television at home, but cannot remember what he watches. (R. 67). Moreover, Plaintiff testified that his mother must tell him the time and day at which he must take his medication. (R. 68). Plaintiff testified that he is only able to take public transportation with his mother. (R. 68).
Plaintiff also testified at the supplemental hearing on November 22, 2022. (R. 44-46). He stated that his jaw issues cause problems with his speech, which is still being treated by Dr. Fernando Taveras. (R. 45). Plaintiff testified that his mother accompanied him to these visits, and that she administers the medication Dr. Taveras prescribed to him. (R. 45). Plaintiff also said that he was hearing voices. (R. 46).
The hearing transcript refers to someone named “Dr. Fernando Ballellas.” (R. 45). However, the court reporter notes that this is a phonetic spelling. (Id.). At the initial hearing, counsel for Plaintiff referred to “Dr. Fernando Ferrera,” but the ALJ refers to the same person as “Dr. Fernando Taveras.” (R. 56). Since Dr. Fernando Ballellas was a phonetic spelling, and the ALJ referred to Dr. Fernando Ferrera as Dr. Fernando Taveras, the Court will assume both names are referring to Dr. Fernando Taveras, whose records appear throughout the record.
3. Vocational Expert Christina Spaulding
Christina Spaulding, a vocational expert (“VE”), testified at Plaintiff's hearing. (R. 7584). The ALJ asked whether a hypothetical individual of the same age, education, and vocational background as Plaintiff could perform any jobs, given that they are limited to: (1) simple, routine work that is not performed at a production-rate pace; (2) work that requires no more than occasional interactions with the general public, and no more than brief, superficial interactions with supervisors and co-workers; and (3) no more than brief interactions with the general public, which are not part of the general job duties. (R. 77). The VE testified that the individual may work as: (1) a salvage laborer, DOT 929.687-022, of which there are 10,000 jobs; (2) a cleaner, DOT 323.687-014, of which there are 100,000 jobs; or (3) a dishwasher, DOT 318.687-010, of which there are 107,000 jobs. (R. 77-78). When the ALJ added a fourth limitation to the individual, by limiting them to “not read or write in any language,” and “that the individual cannot communicate in English, but only in Spanish,” the VE testified that there are only limited language skills required for these jobs, and, moreover, “these jobs can be demonstrated to learn them, so . . . all three of those jobs could still be performed.” (R. 78).
While these “social limitations are not directly addressed by the DOT,” the VE based her response on her “professional experience and training.” (R. 78). The VE also testified that there would be no reduction in the number of available jobs. (Id.).
The ALJ further posited that the hypothetical individual would be working a forty-hour workweek, eight hours per day, five days per week, with a thirty-minute meal break in the middle of the shift, and two fifteen-minute breaks before and after the meal break. (R. 79). When asked how much time off-task an employer would tolerate, the VE responded that the employee may be off task “10% of the time, or 6 minutes per hour, but no more than that, on an ongoing or chronic basis.” (Id.). Furthermore, employers will not tolerate more than one absence per month on a consistent basis. (Id.).
Plaintiff's attorney then questioned the VE, and asked her whether these jobs require employees to work at a consistent pace, to which the VE responded “yes.” (R. 80). The VE then testified that she “could see” there being a problem if an individual was unable to communicate, because “if there was a problem with the dishwasher machine, for instance, and . . . they weren't able to communicate that, or have questions if they didn't understand what their job requirements were . . . I could see that ultimately [] could be problematic on the job and may ultimately lead to termination.” (R. 82). On follow-up questioning on this point, the VE did not extend this conclusion to the other two jobs she listed. (R. 82-84).
C. The ALJ's Decision
On December 22, 2022, ALJ Carlton denied Plaintiff's application. (R. 23-31). Using the five-step procedure promulgated by the Commissioner, ALJ Carlton found that Plaintiff was not eligible for disability benefits. At step one, he found that Plaintiff has not engaged in substantially gainful activity since his application date, December 9, 2020. (R. 25). At step two, he found that Plaintiff suffers a severe impairment of: (1) intellectual disability; (2) major depressive disorder; and (3) history of mandible surgery. (Id.).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (R. 26). To qualify, Plaintiff must have either “one extreme limitation or two marked limitations in a broad area of functioning.” (Id.). ALJ Carlton found that Plaintiff had four moderate limitations, thus, he does not satisfy this requirement. First, Plaintiff has a moderate limitation in understanding, remembering or applying limitation, because the “[t]reatment notes show deficits in memory . . . as well as an IQ test of 74.” (Id.) (citing R. 492, 519). Second, Plaintiff has a moderate limitation in interacting with others, because he does not go anywhere independently, but, while he has difficulty speaking, he communicates “effectively” with “normal speech and language.” (Id.) (citing R. 543-81). Third, Plaintiff has a moderate limitation in concentrating, persisting or maintain pace, as he “reported hearing voices instructing him to harm himself,” and “was easily distracted” at medical appointments. (Id.) (citing R. 530, 583). Fourth, Plaintiff has a moderate limitation for adapting or managing himself, since “he could not perform activities of daily living . . . prepare meals, do household chores, or take public transportation alone.” (Id.) (citing R. 502-03). Therefore, the ALJ concluded that Plaintiff does not have an impairment that meets the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ then determined Plaintiff's residual function capacity (“RFC”). ALJ Carlton found that Plaintiff has the RFC to perform “a full range of work at all exertional levels,” but may only:
tolerate simple, routine work not performed at a production rate pace, no more than occasional interactions with supervisors and co-workers and no more than brief, superficial interactions with the general public with such interactions not being a part of the general job duties; and must not be required to read or write in any language, and can only communicate in Spanish.(R. 27). In making this determination, the ALJ “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 C.F.R. § 416.929 and S.S.R. 163p.” (Id.) (cleaned up). He “also considered the medical opinions and prior administrative medical findings in accordance with the requirements of 20 C.F.R. § 416.920c.” (Id.) (cleaned up). ALJ Carlton followed a “two-step process in which it must first be determined whether there is an underlying medically determinable . . . mental impairment[] . . . that could reasonably be expected to produce [Plaintiff's] pain,” and, “[s]econd, once an underlying . . . mental impairment[] . . . has been shown,” the ALJ “must evaluate the intensity, persistence, and limiting effects of [his] symptoms to determine the extent to which they limit [his] work-related activities.” (Id.).
The ALJ determined that Plaintiff testified and stated on his function report that he: (1) cannot read or write; (2) cannot travel alone; (3) cannot maintain a regular work schedule; (4) has difficulty with memory, concentration, understanding and following instructions; and (5) cannot pay attention. (R. 27). However, the ALJ did not find Plaintiff's testimony regarding intensity, persistence and limiting effect of these symptoms credible. The ALJ found that they were inconsistent with substantial evidence in the record, because “the treatment notes show [the Plaintiff's] mental status examinations [were] within normal limitations.” (Id.). For instance, in January 2021, Plaintiff “reported isolation, and [that he] would not talk in front of other.” (R. 28). However, the ALJ noted that, during this same examination, Plaintiff “had intact language skills, [and] exhibited normal speech that was coherent and spontaneous.” (Id.) (citing R. 498). ALJ Carlton then found that Plaintiff's mother's testimony, that Plaintiff “never” spoke, and had someone speak for him at all of his appointments was “contradicted by the record.” (R. 30). Specifically, he noted that the treatment notes indicated Plaintiff “was clearly speaking for himself, as the examiner [noted Plaintiff's] difficulties with speech as a result of his mandible surgery.” (Id.) (see, e.g., R. 514) (differentiating between what Plaintiff and his mother “stated”); (see also R. 498) (Plaintiff is “slow to respond” and “exhibits speech that is normal in rate, volume, and articulation and is coherent and spontaneous”).
Furthermore, the ALJ found that, in a February 2021 examination, Plaintiff “function[ed] as baseline, was compliant with medication, and was able to maintain behavior under control,” and that “[b]y October 2021, the claimant had low mood, fair insight and judgment, and no other abnormal results on mental status examination.” (R. 28) (citing R. 500, 515). While Plaintiff “stutter[ed],” the ALJ found other treatment notes which found that Plaintiff “had normal speech, [and] intact language skills.” (Id.) (citing R. 583, 597). Moreover, Plaintiff was able to overcome the issue of “hearing command auditory hallucinations” when his medication was adjusted. (Id.) (citing R. 530, 539).
ALJ Carlton also found that, in December 2021, Plaintiff went through the TONI-4 intelligence examination. (R. 28). He received a score of 74, “which corresponds to the poor range of intellectual functioning.” (Id.) (citing R. 518-19). However, the ALJ did not find credible Dr. Taveras's estimation that Plaintiff has an IQ of 35-40 to 50-55, since his records “d[id] not contain any evidence of IQ testing.” (Id.) Thus, the ALJ “ha[d] no information as to how exactly this range was established,” and instead credited the TONI-4 score of 74, since this test was documented in the record. (Id.).
ALJ Carlton supplemented these findings with additional medical evidence in the record. He found Dr. Goldstein's opinion regarding Plaintiff's moderate limitations persuasive. Dr. Goldstein opined that Plaintiff has a moderate limitation in: (1) understanding, remembering, or applying simple or complex information; (2) using reason and judgment to make work-related decisions; (3) interacting with others; (4) sustaining concentration and pace; (5) sustaining an ordinary routine and regular attendance; (6) regulating emotions and controlling behavior; and (7) being aware of normal hazards. (R. 29) (citing R. 519-22). The ALJ credited Dr. Goldstein's opinion because “it is supported by the results of the consultive examination, and is consistent with evidence from treatment notes.” (Id.) (citing R. 518-19, 491-92, 530, 583). Thus, ALJ Carlton credited the record medical evidence over Plaintiff's testimony regarding the intensity, persistence and limiting effects of his symptoms. (Id.) (holding that the RFC determination “is supported by treatment notes that show normal mental status examinations, and by formal intelligence testifying”) (citing R. 518-22, 583, 597).
As for Plaintiff's alleged difficulty speaking, ALJ Carlton noted that “[w]hile typically a restriction to communication in a particular language would not be appropriate,” because Plaintiff “has a history of mandible surgery” and some “intellectual disability,” “such a restriction is appropriate” in this instance. (R. 30). Indeed, ALJ Carlton also restricted Plaintiff's work to “not require more than occasional interactions with co-workers and supervisors,” and ensured that “his interactions with the general public should be at most brief and superficial and not [] a part of his general job duties.” (Id.).
At step four, the ALJ found that Plaintiff “has no past relevant work.” (Id.) (citing 20 C.F.R. § 416.965). At step five, considering Plaintiff's “age, education, work experience, and residual functional capacity,” and the VE's testimony, the ALJ found that “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform,” (id.), and thus “has not been under a disability,” (R. 31). Accordingly, the ALJ concluded that a finding of “not disabled” was appropriate and rejected Plaintiff's claim. (Id.).
II. DISCUSSION
Plaintiff asserts that the ALJ's decision should be reversed and remanded for further administrative proceedings because it “was not supported by substantial evidence in the record, or was based on legal error.” (Compl. at 2). In response, the Commissioner argues that the “ALJ's decision was supported by substantial evidence at each point of the sequential evaluation, and should be affirmed.” (Comm'r Br. at 15-21). Since Plaintiff is proceeding pro se, and has not specifically identified any legal errors with the ALJ's decision, the Court “conduct[ed] a general review of the ALJ's decision” to identify any potential legal errors and ensure that the decision is supported by substantial evidence. Campos v. Saul, 18cv9809 (DF), 2020 WL 1285113, at *21 (S.D.N.Y. Mar. 18, 2020); see also Paz v. Comm'r of Soc. Sec., No. 15cv06353 (AJN) (DF), 2017 WL 1082684, at *29 (S.D.N.Y. Feb. 1, 2017) (holding that the Court must be “mindful of Plaintiff's pro se status” and analyze “the Record and . . . the ALJ's decision, in order to evaluate the merits of the Commissioner's motion”), report and recommendation adopted, 2017 WL 1078573 (S.D.N.Y. Mar. 20, 2017). Additionally, courts must afford pro se plaintiff's “special solicitude.” Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994). Where, as here, a plaintiff proceeds pro se, the court should “read his supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citing Mikinberg v. Baltic S.S. Co., 988 F.2d 327, 330 (2d Cir. 1993)). “‘Even where a motion for judgment on the pleadings is unopposed, the Court must still review the entire record and ensure that the moving party is entitled to judgment as a matter of law.'” Mancebo v. Comm'r of Soc. Sec., 16-CV-6400 (JPO), 2017 WL 4339665, at *2 (S.D.N.Y. Sept. 29, 2017) (quoting Graham v. Comm'r of Soc. Sec., No. 16-CV-142 (LDH), 2017 WL 1232493, at *1 (E.D.N.Y. Mar. 31, 2017)).
If Plaintiff does not have access to cases cited herein that are available only by electronic database, then he may request copies from Defendant's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party.”).
A. Legal Standards
A claimant is disabled if he or 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 12 months.'” Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (per curiam) (quoting 42 U.S.C. § 423(d)(1)(A)). The SSA has enacted a five-step sequential analysis to determine if a claimant is eligible for benefits based on a disability:
(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a “residual functional capacity” assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008); 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). The claimant has the general burden of proving that he or she is statutorily disabled “and bears the burden of proving his or her case at steps one through four.” Cichocki, 729 F.3d at 176 (quoting Burgess, 537 F.3d at 128). At step five, the burden then shifts “to the Commissioner to show there is other work that [the claimant] can perform.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 445 (2d Cir. 2012) (per curiam).
When reviewing an appeal from a denial of SSI or disability benefits, the Court's review is “limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); see also 42 U.S.C. § 405(g). Substantial evidence means “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)). Put another way, a conclusion must be buttressed by “more than a mere scintilla” of record evidence. Id. (quoting Consolidated Edison, 305 U.S. at 229). The substantial evidence standard is “very deferential” to the ALJ. Brault, 683 F.3d at 448. The Court does not substitute its judgment for the agency's “or ‘determine de novo whether [the claimant] is disabled.'” Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (alteration in original) (quoting Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)).
However, where the proper legal standards have not been applied and “might have affected the disposition of the case, [the] court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). Therefore, “[f]ailure to apply the correct legal standards is grounds for reversal.” Id.
On January 18, 2017, the SSA considerably revised its regulations for evaluating medical evidence. The rules went into effect on March 27, 2017, and therefore, apply to the instant case. Under the new regulations, the treating physician rule no longer applies. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Therefore, no special deference is given to the treating physician's opinion. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, “[the Commissioner] will articulate in [his] determination or decision how persuasive [he] find[s] all of the medical opinions.” 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The updated regulations also define a “medical opinion” as “a statement from a medical source about what [the claimant] can still do despite [their] impairment(s) and whether [they] have one or more impairment-related limitations or restrictions” in their “ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions ....” 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). Thus, a medical opinion must discuss both a claimant's limitations and “what [the claimant] is still capable of doing” despite those limitations. Michael H. v. Saul, 5:20-CV-417 (MAD), 2021 WL 2358257, at *6 (N.D.N.Y. June 9, 2021). Relatedly, conclusory statements by a claimant's provider concerning issues reserved to the Commissioner - for instance, whether the claimant is disabled under the Act - are “inherently neither valuable nor persuasive” and will not be analyzed by the ALJ. 20 C.F.R. §§ 404.1520b(c), 416.920b(c).
B. The ALJ's Duty to Develop the Record
As a threshold matter, the Court must be satisfied that the record is fully developed before determining whether the Commissioner's decision is supported by substantial evidence. See Smoker v. Saul, 19-CV-1539 (AT) (JLC), 2020 WL 2212404, at *9 (S.D.N.Y. May 7, 2020) (“Whether the ALJ has satisfied this duty to develop the record is a threshold question.”). “[I]n light of the ‘essentially non-adversarial nature of a benefits proceeding[,]'” “[a]n ALJ, unlike a judge at trial, has an affirmative duty to develop the record.” Vega v. Astrue, No. 08 Civ. 1525 (LAP) (GWG), 2010 WL 2365851, at *2 (S.D.N.Y. June 10, 2010) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)). “This duty is present even when a claimant is represented by counsel.” Atkinson v. Barnhart, 87 Fed.Appx. 766, 768 (2d Cir. 2004) (summary order). “Where there are gaps in the administrative record, remand to the Commissioner for further development of the evidence” is appropriate. Sobolewski v. Apfel, 985 F.Supp. 300, 314 (E.D.N.Y. 1997). “[W]here there are no obvious gaps in the administrative record, and where the ALJ already possesses a ‘complete medical history,' the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (citing Perez v. Chater, 77 F.3d 41, 48 (2d. Cir. 1996)); see also Pellam v. Astrue, 508 Fed.Appx. 87, 90 (2d Cir. 2013) (summary order).
Here, the Court finds no obvious gaps in the Record. The record consists of medical records, (R. 410-73), treatment records (R. 480-81, 483-85, 543-98), and Plaintiff's testimony, (R. 44-46, 58-69). Furthermore, at the April 19, 2022 hearing, Plaintiff's attorney stated that he did not “think there's anything outstanding.” (R. 56); see Jordan v. Comm'r of Soc. Sec., 142 Fed.Appx. 542, 543 (2d Cir. 2005) (finding that the ALJ fulfilled his duty to develop the record where counsel had “nothing further to add,” and did not request the ALJ's help in obtaining additional documents). In any event, “after the April 19, 2022 hearing, the ALJ independently sought and obtained additional records from [Dr. Taveras], which were proffered to Plaintiff's counsel,” (Comm'r Br. at 11) (citing R. 480-81, 483-85, 543-81), and additional records were obtained from Dr. Taveras's office before the supplemental hearing, (see R. 582-98). Thus, before the supplemental hearing, the ALJ was presented with a full record. See Moss v. Comm'r of Soc. Sec., 21 Civ. 01352 (JCM), 2022 WL 4365349, at *11 (S.D.N.Y. Sept. 20, 2022) (finding the record was fully developed where “records were subsequently added to the file”).
Accordingly, the Court concludes and respectfully recommends finding that the ALJ fulfilled his duty to develop the record.
C. The ALJ Did Not Commit Legal Error
Plaintiff argues that the ALJ's decision “was based in legal error.” (Compl. at 2). In response, the Commissioner contends that: (1) “the ALJ appropriately applied the regulations for claims filed after March 27, 2017,” (Comm'r Br. at 17-20); and (2) Plaintiff's credibility was properly discredited, since the medical evidence, including the treatment notes, contradicted his testimony. (Comm'r Br. at 16).
1. Weight Given to the Medical Evidence
When determining whether a claimant is disabled, “an ALJ must consider all medical opinions in the record.” Manzella v. Comm'r of Soc. Sec., CIVIL ACTION NO. 20 Civ. 3765 (VEC) (SLC), 2021 WL 5910648, at *11 (S.D.N.Y. Oct. 27, 2021), report and recommendation adopted, 2021 WL 5493186 (S.D.N.Y. Nov. 22, 2021). “A medical opinion is a statement from a medical source about what [a claimant] can still do despite [his or her] impairment[s] and whether [the claimant] ha[s] one or more impairment-related limitations or restrictions in . . . [the claimant's] ability to perform [the physical and mental] demands of work activities.” 20 C.F.R. § 404.1513(a)(2) (2017).
The treating physician rule does not apply to claims filed after March 27, 2017. See 82 Fed.Reg. 5,844 (Jan. 18, 2017). Thus, the ALJ is no longer required to “defer or give any specific evidentiary weight, including controlling weight, to any medical opinion[s], . . . including those from [a claimant's] medical sources.” 20 C.F.R. § 404.1520c(a) (2017); see Manzella, 2021 WL 5910648, at *11. Instead, the ALJ must consider all the medical opinions and determine how persuasive he finds them. See 20 C.F.R. § 404.1520c(b). In conducting this evaluation, the ALJ must consider: (1) supportability, (2) consistency, (3) the medical source's relationship with the claimant, (4) the medical source's specialization, and (5) any “other factors that tend to support or contradict a medical opinion.” Id. § 404.1520c(c)(1)-(5).
The first two factors-supportability and consistency-are considered the “most important” in determining how persuasive an ALJ finds a medical source's opinions. Id. § 404.1520c(b)(2). As a result, the ALJ must “explain how [he] considered the supportability and consistency factors,” but is not required to explain how he considered the remaining factors. Id. With respect to supportability, the new rule provides that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” Id. § 404.1520c(c)(1). “Simply put, supportability is an inquiry confined to the medical source's own records that focuses on how well a medical source supported and explained their opinion.” Vellone ex rel. Vellone v. Saul, 1:20-cv-00261 (RA) (KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021), report and recommendation adopted, 2021 WL 2801138 (S.D.N.Y. July 6, 2021). With respect to consistency, the new regulations provide that the more consistent a medical opinion is with other evidence in the medical record, the more persuasive it will be. 20 C.F.R. § 404.1520c(b)(2). “[C]onsistency is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record.” Vellone, 2021 WL 319354, at *6. “If the ALJ fails adequately to explain the supportability or consistency factors, or bases [his] explanation upon a misreading of the record, remand is required.” Rivera v. Comm'r of Soc. Sec. Admin., 19-CV-4630 (LJL) (BCM), 2020 WL 8167136, at *14 (S.D.N.Y. Dec. 30, 2020), report and recommendation adopted, 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021) (internal quotation and citation omitted). An ALJ is “not required to articulate how [he] considered each medical opinion . . . from one medical source individually.” 20 C.F.R. § 404.1520c(b)(1). Here, it is clear that the ALJ considered the consistency and supportability of all the evidence in coming to his decision. (See, e.g., R. 29-30) (analyzing records from “medical sources,” including Dr. Broska, Dr. Taveras, Dr. Goldstein, Dr. Lieber-Diaz and Dr. D'Ortona).
i. Dr. Arlene Broska
ALJ Carlton first weighed the medical opinion of Dr. Arlene Broska. In March 2021, Dr. Broska opined that Plaintiff had mild to moderate limitations in: (1) understanding, remembering, or applying complex information; (2) using reason and judgment to make work-related decisions; (3) interacting with others; (4) sustaining concentration and pace; (5) sustaining an ordinary routine and regular attendance; and (6) regulating emotions and controlling behavior. (R. 492). ALJ Carlton properly gave partial weight to Dr. Broska's opinion, as “it is supported by the results of the consultative examination.” (R. 29) (citing R. 491-92); see Heckman v. Comm'r of Soc. Sec., 18-CV-6032, 2019 WL 1492868, at *4 (W.D.N.Y. Apr. 4, 2019) (“[W]hen the record contains at least some evidence of a specific limitation, the ALJ may appropriately reach a specific RFC incorporating that limitation.”).
The only deviation the ALJ made from Dr. Broska's opinion was in Plaintiff's favor.
The ALJ held that Plaintiff suffered from “greater mental limitations,” than the “mild to moderate limitations” noted by Dr. Broska. (R. 29). In support of this finding, the ALJ referenced other medical evidence in the record indicating that Plaintiff suffered from “auditory hallucinations and deficits in cognition, attention, and memory,” which supported a finding of a greater limitation. (R. 29) (citing R. 491-92, 530, 518-19, 583). Where, as here, “an ALJ makes an RFC assessment that is more restrictive than the medical opinions of record, it is generally not a basis for remand.” Barone v. Comm'r of Soc. Sec., 19-cv-00482(JJM), 2020 WL 3989350, at *4 (W.D.N.Y. July 15, 2020) (cleaned up). Thus, ALJ Carlton properly weighed Dr. Broska's medical opinion.
ii. Dr. Joshua Goldstein
The ALJ turned next to Dr. Goldstein's opinion. In December 2021, Dr. Goldstein examined Plaintiff, and opined that he had a moderate limitation in: (1) understanding, remembering, or applying simple and complex information; (2) using reason and judgment to make work-related decisions; (3) interacting with others; (4) sustaining concentration and pace; (5) sustaining an ordinary routine and regular attendance; (6) regulating emotions and controlling behavior; and (7) awareness of normal hazards. (R. 519-22). ALJ Carlton reviewed Dr. Goldstein's opinion, and found that it was persuasive, because it “is supported by the results of the consultative examination, and is consistent with evidence from treatment notes.” (R. 29) (citing R. 491-92, 530, 518-19, 583). In fact, the ALJ credited Dr. Goldstein's opinion, in part, because “it is supported by” and “consistent with evidence from” Dr. Taveras. (Id.) (citing Dr. Taveras's “treatment notes”) (R. 528-32, 584, 598); see, e.g., Puglisi v. Astrue, No. 07-CV-628S, 2008 WL 4371353, at *3 (W.D.N.Y. Sept. 17, 2008) (finding that “contrary to Plaintiff's argument, the ALJ considered [medical evidence], as evidenced by [the ALJ's] citation to that medical record”). Dr. Taveras's records showed that Plaintiff had some abnormalities, such as distractibility, a limited attention span, and an isolated incident of hallucinations, (see, e.g., R. 533), but consistently noted that he had good behavior control, a calm and friendly demeanor, denied depression, and had intact thought processes, insight and judgment. (See, e.g., R. 526, 528, 536); see also Puglisi, 2008 WL 4371353, at *3. Thus, it is clear that the ALJ “considered both the consistency and the supportability” of Dr. Goldstein's opinion. Brian M. v. Comm'r of Soc. Sec., 670 F.Supp.3d 1, 10 (W.D.N.Y. 2023); see also Morell v. Comm'r, 22-CV-06660 (SN), 2023 WL 5352794, at *6-7 (S.D.N.Y. Aug. 21, 2023) (affirming ALJ's consistency analysis where the ALJ cited to other medical evidence that were largely consistent with the opining source's observations and opinion). Consequently, since ALJ Carlton specifically found that Dr. Goldstein's opinion was supported by evidence in the record, and consistent with the same, he did not err in finding Dr. Goldstein's opinion persuasive.
iii. Dr. K. Lieber-Diaz and Dr. M. D'Ortona
Finally, ALJ Carlton evaluated the medical opinions of Dr. K. Lieber-Diaz, the initial state agency psychiatric reviewer, and Dr. M. D'Ortona, who reconsidered Dr. Lieber-Diaz's findings. Both doctors opined that “that the claimant had mild limitations in interacting with others and moderate limitations in all other areas of mental functioning.” (R. 29) (citing R. 91, 107). ALJ Carlton found “these opinions generally persuasive, as [they are] supported by a review of the record,” (R. 29) (citing R. 97-98, 113-14), but noted “that [Plaintiff's] testimony and examination results show[ed] at least moderate limitations in interacting with others,” (R. 29) (citing R. 518-19). Therefore, the ALJ's only deviation was in Plaintiff's favor, as he found that Plaintiff had a more restrictive limitation in interacting with others than found by Dr. Lieber-Diaz and Dr. D'Ortona. (R. 29). Therefore, remand is unwarranted since the ALJ's deviation was “ground[ed] . . . in the record evidence,” and in favor of Plaintiff. Piper v. Comm'r of Soc. Sec., 18-CV-1311-FPG, 2020 WL 4499530, at *4 (W.D.N.Y. Aug. 4, 2020); see also Lesanti v. Comm'r of Soc. Sec., 436 F.Supp.3d 639, 649 (W.D.N.Y. 2020) (declining to remand where the ALJ made an RFC determination that may have been more restrictive than necessary). Thus, the ALJ properly weighed the opinions of Dr. Lieber-Diaz and Dr. D'Ortona.
2. Assessment of Plaintiff's Credibility
The SSA's regulations provide a two-step process for evaluating a claimant's assertions of pain and other limitations. First, “the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). Second, if the claimant does suffer from an impairment, “the ALJ must consider the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence of record.” Id. (internal quotations and citation omitted). The ALJ considers the claimant's activities, the location, duration, frequency and intensity of the pain or other symptoms, precipitating and aggravating factors, medication and other treatment, measures taken by the claimant to relieve pain or other symptoms, and other relevant factors. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (2019). After considering these factors, the ALJ “has the discretion to evaluate the credibility of a claimant and to arrive at an independent judgment . . . regarding the true extent of the pain alleged by [plaintiff].” Martinez v. Astrue, No. 10 Civ. 9284 (PKC), 2012 WL 4761541, at *11 (S.D.N.Y. Aug. 1, 2012) (quoting Minims v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984)); see also Genier, 606 F.3d at 49 (the ALJ “may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record.”). “If these findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount plaintiff's subjective complaints of pain.” Martinez, 2012 WL 4761541, at *11 (citing Aponte v. Sec'y of Dep't of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)). “In addition, ‘courts must show special deference to an ALJ's credibility determinations because the ALJ had the opportunity to observe plaintiff's demeanor while [the plaintiff was] testifying.'” Mayor v. Colvin, 15 Civ. 0344 (AJP), 2015 WL 9166119, at *19 (S.D.N.Y. Dec. 17, 2015) (quoting Marquez v. Colvin, No. 12 Civ. 6819 (PKC), 2013 WL 5568718, at *7 (S.D.N.Y. Oct. 9, 2013)). At the outset, the ALJ recognized this “two-step process,” and identified the same legal standard set out by courts in this Circuit. (See R. 27).
The ALJ properly assessed Plaintiff's credibility. The ALJ listed each medically determinable impairment that could reasonably be expected to cause Plaintiff's alleged symptoms, noting: (1) “he could not read or write;” (2) he “does not travel independently and would not be able to sustain a regular work schedule;” (3) he has “difficulty with memory, concentration, understanding, and following instructions;” and (4) he has “problems paying attention.” (R. 27); see Samuels v. Comm'r of Soc. Sec., 16CV5507 (NSR)(LMS), 2019 WL 2526943, at *4 (S.D.N.Y. May 21, 2019) (finding that the ALJ applied “the correct two-step analysis described in the regulations,” when he “first found that Plaintiff's medically determinable impairments could reasonably be expected to cause his alleged symptoms”), report and recommendation adopted, 2019 WL 2524843 (S.D.N.Y. June 19, 2019). Thus, the ALJ satisfied the first step.
However, ALJ Carlton did not find Plaintiff entirely credible, as his “statements concerning the intensity, persistence and limiting effects of these symptoms [we]re not entirely consistent with the medical evidence and other evidence in the record.” (R. 27). As for Plaintiff's statements that he could not read or write, the ALJ found that while Plaintiff is “minimally communicative,” “[i]t is readily apparent in reviewing [his] treating records that [Plaintiff] . . . is the one speaking, since the records at times distinguish between” him and his mother. (R. 30); (see also R. 502, 504) (noting that Plaintiff's speech was “poorly modulated, and garbled,” but at his next appointment, his “speech” improved and was “normal in rate, volume, and articulation and [wa]s coherent and spontaneous”). Thus, the ALJ held that while the “records do show [Plaintiff] to be minimally communicative,” the “testimony that he will not speak at all is clearly contradicted.” (R. 30). The ALJ also found that, during one examination, “the examiner [noted Plaintiff's] difficulties with speech as a result of his mandible surgery.” (Id.); (see also R. 491) (Dr. Broska noted that Plaintiff “was sometimes difficult to understand [which] [h]e attributed [] to his mandible surgery”); see Bradley v. Comm'r of Soc. Sec., No. 12 Civ. 7300(ER), 2015 WL 1069307, at *11 (S.D.N.Y. Mar. 11, 2015). Since the treatment notes clearly contradicted Plaintiff's testimony, the ALJ did not err in discounting his testimony. See David H. v. Comm'r of Soc. Sec., Case # 20-CV-01471-FPG, 2023 WL 2601968, at *3 (W.D.N.Y. Mar. 22, 2023) (holding that the ALJ properly discounted a plaintiff's credibility when his “medical history is replete with treatment notes” contradicting him).
Similarly, the ALJ did not find Plaintiff's testimony on his mental capability credible. ALJ Carlton found that the “treatment notes show mental status examinations with results within normal limitations.” (R. 28). In making this finding, ALJ Carlton relied on several pieces of evidence from the record. For example, in January 2021, Plaintiff “reported isolation, and would not talk in front of others or over the phone,” but, “on examination, [he] had intact language skills, exhibited normal speech that was coherent and spontaneous.” (R. 28) (citing R. 498). Moreover, over the next several months, the ALJ found that Plaintiff: (1) “was functioning as baseline, was compliant with medication, and was able to maintain behavior under control on examination in February 2021,” (R. 28) (citing R. 500); (2) “denied symptoms of depression” in April and May 2021, (id.) (citing R. 502, 504); and (3) “had low mood, fair insight and judgment, and no other abnormal results on mental status examination” in October 2021, (id.) (citing R. 515). The ALJ also found that, in March 2021, despite having “impaired recent and remote memory,” “borderline intellectual functioning skills, and limited insight,” Plaintiff “was able to understand and answer all questions, had coherent and goal-directed thought processes, had intact attention and concentration skills,” and had “fair judgment.” (Id.) (citing R. 491-92).
Furthermore, the ALJ found that Plaintiff was able to control some of his symptoms with medication. In October 2021, Plaintiff reported “hearing command auditory hallucinations that instructed him to harm himself” but, told doctors that his symptoms disappeared within one month after his medication was adjusted. (R. 28) (citing R. 530, 539); see Edwards v. Comm'r of Soc. Sec., 20-CV-8843 (ALC), 2023 WL 3336513, at *7 (S.D.N.Y. May 10, 2023) (affirming ALJ's finding of non-disability where the record as a whole showed episode of psychosis was an “isolated incident” that was largely resolved with medication). Since Plaintiff's treatment notes showed that he was doing better than he reported, the ALJ did not err in discounting Plaintiff's testimony. See Fillmore v. Colvin, 286 F.Supp.3d 536, 538 (W.D.N.Y. 2017) (“In finding plaintiff's testimony to be exaggerated, the ALJ weighed the appropriate factors, including medical evidence . . . [and] reports that plaintiff was doing ‘fairly well.'”).
Finally, in discrediting Plaintiff's credibility and relying on medical evidence showing Plaintiff had a higher intelligence than claimed, the ALJ properly reconciled a discrepancy in the medical evidence. While Dr. Taveras “reference[s] [Plaintiff's] IQ as 35-40 to 50-55,” ALJ Carlton rejected this opinion, as “the medical evidence does not contain any evidence of IQ testing, and therefore [the ALJ] ha[d] no information as to how exactly this range was established.” (R. 28) (citing R. 524, 547). Dr. Goldstein, on the other hand, performed an intelligence assessment, which was documented in the record and based upon the well-recognized TONI-4 test. (R. 519); Rivera, 2020 WL 8167136, at *20 n.19 (holding that that TONI-4 “has a mean of 100 and a standard deviation of 15, and thus meets the parameters of 20 C.F.R. Pt. 404 Subpt. P, App'x 1, § 12.00(H)(2)(a) when administered by a qualified specialist”) (internal quotations and citation omitted). Dr. Goldstein's TONI-4 examination determined Plaintiff “had an IQ score of 74, which is far higher than the [] range of 35-55.” (R. 28-29) (citing R. 518-19). ALJ Carlton found this intelligence examination credible, and it was not error to do so since it was the only intelligence test in the record. Moreover, even if Dr. Taveras had conducted an IQ test, “[t]o the extent that the two tests offered mixed results, the ALJ had discretion to resolve any conflicts within the context of the overall record.” Williams v. Comm'r of Soc. Sec., 19-CV-44 HBS, 2020 WL 1861711, at *5 (W.D.N.Y. Apr. 14, 2020) (finding error when the ALJ failed to explain “how [his] discretion [was used] to resolve [] conflicts” between two intelligence tests). Since ALJ Carlton explained how he weighed the medical evidence and provided reasons for discounting Dr. Taveras's IQ assessment while crediting Dr. Goldstein's, there was no legal error.
Accordingly, I conclude and respectfully recommend finding that ALJ Carlton's credibility determination is devoid of legal error.
D. The ALJ's Decision is Supported by Substantial Evidence
Plaintiff claims that the ALJ's decision was not supported by substantial evidence. (Compl. at 2). In response, the Commissioner argues that “[a]t each point of the sequential evaluation, the ALJ's findings were supported by substantial evidence.” (Comm'r Br. at 15-21). Since, Plaintiff is pro se, and the Commissioner addresses each step of the ALJ's five-step process, the Court will analyze each in turn.
1. The ALJ's Step One, Two and Three Findings
At step one, the ALJ must evaluate whether Plaintiff has engaged in substantial gainful activity. See 20 C.F.R. § 416.920(a)(4)(i), (b). Here, ALJ Carlton found that Plaintiff “ha[d] not engaged in substantial gainful activity since December 9, 2020, the application date.” (R. 25).
Plaintiff did not contest this finding, and even if he had, “the Second Circuit has found that, where an ALJ continues the disability evaluation process past step one and considers medical evidence from the entire relevant period, an error in determining that a plaintiff performed substantial gainful activity at step one is harmless.” Parks v. Comm'r of Soc. Sec., Case no. 7:14-CV-1367 (GTS), 2016 WL 590227, at *4 (N.D.N.Y. Feb. 11, 2016). Thus, “the Court can find no error with the ALJ's findings at step one of the sequential evaluation.” Bell v. Astrue, No. 09-CV-0037 (NAM)(VEB), 2010 WL 1948209, at *4 (N.D.N.Y. Apr. 27, 2010), report and recommendation adopted, 2010 WL 1948213 (N.D.N.Y. May 14, 2010).
Step two requires the Commissioner to “determine whether the claimant has a severe impairment that significantly limits his or her physical or mental ability to do basic work activities.” Taylor v. Astrue, 32 F.Supp.3d 253, 265 (N.D.N.Y. 2012); see 20 C.F.R. §§ 404.1520(c), 416.920(c). A “severe impairment” is a medically determinable impairment or combination of impairments that “significantly limits [the claimant's] ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). The Commissioner must “‘consider the combined effect of all of [the claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity.'” Burgin v. Astrue, 348 Fed.Appx. 646, 647 (2d Cir. 2009) (summary order) (alteration in original) (quoting 20 C.F.R. § 404.1523). Plaintiff has the burden at step two of establishing that he has a medically severe impairment or combination of impairments. Taylor, 32 F.Supp.3d at 265; see also 20 C.F.R. § 404.1512(a). “[T]he ‘mere presence of a disease or impairment, or establishing that a person has been diagnosed or treated for a disease or impairment' is not, by itself, sufficient to render a condition ‘severe.'” Id. at 266 (quoting Coleman v. Shalala, 895 F.Supp. 50, 53 (S.D.N.Y. 1995)).
At step two, the ALJ found that the Plaintiff “has the following severe impairments: intellectual disability, major depressive disorder, history of mandible surgery,” (R. 25), which was in line with the impairments alleged by Plaintiff as severe, (see R. 88) (listing “learning disability; trouble remembering; bipolar; problems with speech”). Furthermore, this finding is supported by substantial evidence, as the medical evidence shows that Plaintiff suffers from: (1) intellectual disability, (R. 520); (2) major depressive disorder, (R. 524); and (3) a history of mandible surgery, (R. 490). See Rivera v. Comm'r of Soc. Sec., 21-CV-7135 (LDH), 2023 WL 6214242, at *2 (E.D.N.Y. Sept. 25, 2023) (upholding an ALJ's step two finding where the ALJ “relied on the opinions of two consulting physicians”). After identifying them as severe impairments, the ALJ went on to address them throughout the sequential process. Thus, no legal error was committed. Woodmancy v. Colvin, 577 Fed.Appx. 72, 74 n.1 (2d Cir. 2014) (summary order) (no error warranting remand where “the ALJ did identify severe impairments at step two, so [plaintiff's] claim proceeded through the sequential evaluation process, in which all of [plaintiff's] ailments were part of the analysis”).
At the third step, “[w]here the claimant's symptoms, as described in the medical evidence, appear to match those described in the Listings, the ALJ must provide an explanation as to why the claimant failed to meet or equal the Listings. If the ALJ fails to do so, however, the court may look to other portions of the ALJ's decision and to clearly credible evidence in finding that his determination was supported by substantial evidence.” Figueroa v. Comm'r of Soc. Sec., 19-CV-6472(MWP), 2020 WL 2393308, at *5 (W.D.N.Y. May 12, 2020) (internal quotations and citations omitted). “It is Plaintiff's burden to demonstrate that his disability meets all of the specified medical criteria.” Mercado v. Berryhill, 1:15-CV-00282-MAT, 2017 WL 6275726, at *3 (W.D.N.Y. Dec. 11, 2017) (cleaned up).
“To meet listing 12.04 (Depressive, Bipolar and Related Disorders), a claimant must establish the criteria of paragraphs A and B or the criteria of paragraphs A and C.” Gabriel C. v. Comm'r of Soc. Sec., 6:18-CV-671 (ATB), 2019 WL 4466983, at *4 (N.D.N.Y. Sept. 18, 2019) (citing 20 C.F.R. Part 404, Subpart P, Appendix 1). Paragraph A “requires medical documentation of either a depressive disorder or bipolar disorder.” Id. If a plaintiff meets Paragraph A, he must also meet either Paragraph B or Paragraph C. Paragraph B requires an extreme limitation in one area, or a marked limitation in two areas, of mental functioning, including: (1) understanding, remembering or applying information; (2) interacting with others; (3) concentrating, persisting or maintaining pace; and (4) adapting or managing oneself. Id. Paragraph C requires a “medically documented history of the existence of the” disorder for at least two years, with 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, meaning minimal capacity to adapt to changes in environment or to demands that are not already part of daily life. See 20 C.F.R. Part 404, Subpart P, Appendix 1.
Here, the ALJ's step three findings were supported by substantial evidence. First, the ALJ found that Plaintiff did not meet Paragraph B, as he only had moderate limitations in each area of mental functioning. In understanding, remembering or applying information, the ALJ found that Plaintiff had a moderate limitation, as he had an IQ of 74, and a deficit in memory. (R. 26) (citing R. 492, 519); see Lionel James G.L. v. Comm'r of Soc. Sec., 7:23-cv-03204-CS-GRJ, 2024 WL 2133387, at *6 (S.D.N.Y. Mar. 21, 2024) (affirming a finding of “moderate limitation with respect to understanding, remembering, or applying information” where the plaintiff had an IQ of 56), report and recommendation adopted, 2024 WL 1514148 (S.D.N.Y. Apr. 8, 2024); see also Sierra M. B. v. Saul, 1:20-CV-0127 (GTS), 2020 WL 7316121, at *6 (N.D.N.Y. Dec. 11, 2020) (upholding a step three finding “that Plaintiff had a moderate limitation in understanding, remembering or applying information,” even though “testing had shown a full scale IQ lower than 70”).
Second, the ALJ found that Plaintiff was moderately limited in interacting with others. The ALJ noted that Plaintiff did not go anywhere by himself, but communicated effectively. (R. 26). In making this finding, the ALJ credited medical evidence over Plaintiff's testimony. While he “testified to having difficulty speaking, the [ALJ] note[d] that treatment notes show [Plaintiff] communicat[ed] effectively with his treating physicians and show[ed] normal speech and language.” (Id.) (citing R. 543-81). “The ALJ was well within his duty to reconcile the conflicting evidence and determine that the plaintiff's impairments, or combination of impairments, did not meet or equal a listing,” by relying on “medical findings.” Richard B. v. Comm'r of Soc. Sec., 1:20-CV-00585-MJR, 2021 WL 4316908, at *6 (W.D.N.Y. Sept. 23, 2021) (internal quotation and citation omitted). Furthermore, the ALJ explained, in detail, why he relied on the medical evidence over Plaintiff's testimony, which was not legally erroneous. See supra Section II.C. “‘When, as here, the evidence of record permits us to glean the rationale of an ALJ's decision, we do not require that he have mentioned every item of testimony presented to him or have explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.'” Id. (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)).
Third, regarding Plaintiff's ability to concentrate, persist and maintain pace, the ALJ found that Plaintiff had a moderate limitation. The ALJ noted that Plaintiff heard voices that instructed him to harm himself, and that he was easily distracted. (R. 26) (citing R. 425-26).
However, the ALJ explained that Plaintiff stopped hearing voices when his medication was adjusted. (See R. 28) (R. 530-36). As a result, the Court can “glean” the ALJ's rationale, see Mongeur, 722 F.2d at 1040, and conclude that his finding of a moderate limitation in this regard is supported by substantial evidence, Attendorn v. Comm'r of Soc. Sec., No. 1:12-CV-5 (DNH/ATB), 2012 WL 6680375, at *4 (N.D.N.Y. Nov. 2, 2012) (upholding a finding of moderate restrictions regarding “concentration persistence, or pace,” due to plaintiff's testimony that she gets “easily distracted”), report and recommendation adopted, 2012 WL 6680374 (N.D.N.Y. Dec. 21, 2012).
Fourth, in adapting or managing himself, the ALJ found Plaintiff moderately limited because Plaintiff could not perform activities of daily living, including preparing meals, chores, and taking public transportation. (R. 26) (citing R. 425-26). This was consistent with Dr. Goldstein's opinion that Plaintiff had only a moderate limitation in: (1) understanding, remembering, or applying simple directions and instructions; (2) understanding, remembering, or applying complex directions and instructions; (3) using reason and judgment to make work-related decisions; (4) interacting adequately with supervisors, co-workers, and the public; (5) sustaining concentration and performance of a task at a consistent pace; (6) sustaining an ordinary routine and regular attendance at work; (7) regulating his emotions, controlling his behavior, and maintaining his well-being; and (8) being aware of normal hazards and taking appropriate precautions. (R. 519-20). In addition, Dr. Taveras's treatment notes further support the ALJ's findings. (See R. 498, 500, 504, 541, 585, 587, 589-90, 592, 597). Thus, the “ALJ supported this conclusion with substantial evidence from the record.” Antoinette J. v. O'Malley, 3:23-CV-00194 (SVN), 2024 WL 1298203, at *3 (D. Conn. Mar. 27, 2024).
Finally, the ALJ found that Plaintiff did not meet Paragraph C, as there was “no evidence of treatment in a ‘highly structured setting' which would diminish the signs or symptoms of the claimant's mental impairments.” (R. 26). Since Plaintiff has the “burden to demonstrate that his disability meets all of the specified medical criteria,” Mercado, 2017 WL 6275726, at *3 (cleaned up), and failed to submit any evidence supporting this determination, the ALJ properly concluded that Plaintiff did not satisfy Paragraph C. Therefore, the ALJ supported his step three findings with substantial evidence.
2. The ALJ's RFC Determination
The RFC is an “individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, at *2). When determining the RFC, the ALJ considers “a claimant's physical abilities, mental abilities, [and] symptomatology, including pain and other limitations that could interfere with work activities on a regular and continuing basis.” Weather v. Astrue, 32 F.Supp.3d 363, 376 (N.D.N.Y. 2012) (citing 20 C.F.R. § 404.1545(a)). Nevertheless, an ALJ is not a medical professional. See Heather R. v. Comm'r of Soc. Sec., 1:19-CV-01555 EAW, 2021 WL 671601, at *3 (W.D.N.Y. Feb. 22, 2021). The ALJ “may not substitute his own judgment for competent medical opinion.” Quinto v. Berryhill, No. 3:17-cv-00024(JCH), 2017 WL 6017931, at *12 (D. Conn. Dec. 1, 2017) (internal quotations and citation omitted). Thus, where the record shows that the claimant has more than “minor physical impairments,” Jaeger-Feathers v. Berryhill, 1:17-CV-06350(JJM), 2019 WL 666949, at *4 (W.D.N.Y. Feb. 19, 2019), an ALJ is not qualified “to assess residual functional capacity on the basis of bare medical findings,” Kinslow v. Colvin, No. 5:12-cv-1541(GLS/ESH), 2014 WL 788793, at *5 (N.D.N.Y. Feb. 24, 2014). Moreover, “an ALJ's ultimate RFC assessment need not ‘perfectly correspond with any of the medical sources cited in his decision,' as he is ‘entitled to weigh all of the evidence available to make an RFC finding . . . consistent with the record as a whole.'” Eugene C. v. Kijakazi, No. 3:22-CV-420 (MPS) (RMS), 2023 WL 2866759, at *7 (D. Conn. Feb. 2, 2023) (quoting Kelly W. v. Kijakazi, No. 3:20-CV-00948 (JCH), 2021 WL 4237190, at *16 (D. Conn. Sept. 17, 2021)).
Here, the ALJ found Plaintiff was capable of work at all exertional levels, but is limited to: (1) “simple, routine work not performed at a production rate pace;” (2) “no more than occasional interactions with supervisors and co-workers;” (3) “no more than brief, superficial interactions with the general public with such interactions not being a part of the general job duties;” and (4) a job with no requirement “to read or write in any language,” with any communication limited to Spanish. (R. 27). As an initial matter, the ALJ's RFC determination was highly restrictive. Typically, where “the ALJ's RFC determination was more restrictive than what was required by the limitations in” the medical evidence, remand is unwarranted. Matthew R. v. Comm'r of Soc. Sec., 21-CV-00173-LJV, 2023 WL 6927194, at *5 (W.D.N.Y. Oct. 19, 2023).
Furthermore, in determining Plaintiff's RFC, the ALJ properly considered the record evidence. The ALJ found that each medically determinable impairment to which Plaintiff testified “could reasonably be expected to cause [Plaintiff's] alleged symptoms,” namely that: (1) “he could not read or write;” (2) he “does not travel independently and would not be able to sustain a regular work schedule;” (3) he has “difficulty with memory, concentration, understanding, and following instructions;” and (4) he has “problems paying attention.” (R. 27). However, the ALJ found that Plaintiff's testimony regarding the intensity, persistence and limiting effect of these symptoms was inconsistent with the record. (R. 27-28). As discussed supra Section II.C.2, in making this finding, the ALJ properly weighed Plaintiff's testimony and the medical evidence, and his analysis is devoid of legal error.
Moreover, the ALJ's RFC determination is supported by substantial evidence. In making this RFC determination, the ALJ “properly addressed each of Plaintiff's impairments.” Beshaw v. Comm'r of Soc. Sec., 8:15-CV-556 (MAD), 2016 WL 4382702, at *14 (N.D.N.Y. Aug. 16, 2016). First, the ALJ addressed Plaintiff's difficulty with reading and writing. ALJ Carlton limited Plaintiff by “not [] requir[ing] [him] to read or write in any language,” and required any communication to only be “in Spanish.” (R. 27). Moreover, when the VE testified, the ALJ confirmed that the jobs she identified were “at the lowest level that the DOT identifies,” and “could still be performed” even if Plaintiff “cannot communicate in English, but only in Spanish.” (R. 78). Thus, this finding is supported by substantial evidence. Second, as to Plaintiff's inability to travel independently, while the ALJ did not specifically address this, the Court is able to “glean” why the ALJ did not include it, see Mongeur, 722 F.2d at 1040, since the ALJ found that the only evidence supporting this limitation was Plaintiff's mother's hearing testimony, (R. 27) (“His mother also testified that the claimant does not travel independently and would not be able to sustain a regular work schedule.”). The ALJ found that this testimony was “clearly contradicted,” (R. 30), and “inconsistent [with] the medical evidence,” (R. 28). Since he found both Plaintiff's and his mother's testimony unreliable, and there is no evidence in the record supporting Plaintiff's inability to travel alone, Plaintiff “had a duty to prove a more restrictive RFC, and failed to do so.” Smith v. Berryhill, 740 Fed.Appx. 721, 726 (2d Cir. 2018) (citing Barry v. Colvin, 606 Fed.Appx. 621, 622 (2d Cir. 2015) (summary order) (“A lack of supporting evidence on a matter for which the claimant bears the burden of proof, particularly when coupled with other inconsistent record evidence, can constitute substantial evidence supporting a denial of benefits.”)).
Third, regarding Plaintiff's ability to maintain a regular work schedule, “[w]ork pace and attendance fall under the category of concentration and persistence.” Sharon R. v. Kijakazi, 3:20-CV-902 (ATB), 2021 WL 3884257, at *8 (N.D.N.Y. Aug. 31, 2021). Plaintiff's limitation in concentration, understanding, following directions and paying attention fall under the same category. See id. Here, the ALJ found credible Dr. Goldstein's testimony that Plaintiff had a “moderate limitation[] in sustaining concentration and pace,” and “sustaining an ordinary routine and regular attendance,” (R. 29), and thus limited Plaintiff to “work not performed at a production rate pace,” (R. 27). “[B]ecause the record evidence establishes that plaintiff has . . . a moderate limitation in maintaining a regular work schedule and work-pace and the RFC specifically limits plaintiff to light work that involves only simple, routine tasks with minimal contact with coworkers, supervisors, or the public, the RFC adequately accounts for plaintiff's limitations for performing activities within a schedule and maintaining regular attendance.” Andrea N. v. Saul, No. 3:18-CV-1186 (CFH), 2020 WL 1140512, at *7 (N.D.N.Y. Mar. 9, 2020) (cleaned up). Furthermore, the RFC is consistent with Dr. Goldstein's IQ assessment of Plaintiff, which found Plaintiff to have an IQ of 74. See, e.g., Teresi v. Comm'r of Soc. Sec., 19-cv-1268-JLC, 2020 WL 5105163, at *18-19 (S.D.N.Y. Aug. 31, 2020) (finding ALJ appropriately relied on opinions of no more than moderate mental limitations to find claimant was not disabled, despite IQ score of 75). Record evidence supported this finding, as there was no evidence of a limitation in “understanding, remembering, or applying simple directions and instructions.” (R. 492). Therefore, the ALJ's RFC determination is supported by substantial evidence.
3. The ALJ's Step Four and Five Findings
At step four, the ALJ found that Plaintiff “has no past relevant work experience.” (R. 30). Thus, he proceeded to step five in the sequential process. (Id.). “[E]ven if the ALJ erred at step four, his error would be harmless and would not warrant remand” because he proceeded to step five. Roman Jimenez v. Colvin, No. 12 Civ. 6001 (PGG)(FM), 2014 WL 572721, at *17 (S.D.N.Y. Feb. 13, 2014), report and recommendation adopted, 2016 WL 5660322 (Sept. 30, 2016).
At step five, “[a]n ALJ may rely on a vocational expert's testimony regarding a hypothetical as long as the facts of the hypothetical are based on substantial evidence . . . and accurately reflect the limitations and capabilities of the claimant involved.” Calabrese v. Astrue, 358 Fed.Appx. 274, 276 (2d Cir. 2009) (citations omitted). “When the testimony of a vocational expert is used, the ALJ must present a hypothetical that incorporates all of Plaintiff's impairments .... If the ALJ fails to pose hypothetical questions that include all of a claimant's impairments, limitations and restrictions, or is otherwise inadequate, a vocational expert's response cannot constitute substantial evidence to support a conclusion of no disability.” Harkins v. Colvin, 15 Civ. 5223 (NSR)(JCM), 2016 WL 8669981, at *18 (S.D.N.Y. Dec. 8, 2016), report and recommendation adopted, 2017 WL 1239655 (S.D.N.Y. Mar. 31, 2017); see also Banks v. Colvin, 10 Civ. 6462 (KMK)(JCM), 2016 WL 5478467, at *14 (S.D.N.Y. July 8, 2016), report and recommendation adopted, 2016 WL 5468302 (S.D.N.Y. Sept. 27, 2016).
Here, ALJ Carlton asked the VE whether a hypothetical individual of the same age, education, and vocational background as Plaintiff could perform any jobs, given that they are limited to: (1) simple, routine work that is not performed at a production rate pace; (2) work that requires no more than occasional interactions with the general public, and no more than brief, superficial interactions with supervisors and co-workers; and (3) no more than brief interactions with the general public, which are not part of the general job duties. (R. 77). The ALJ then added that the hypothetical individual can “not read or write in any language,” or “communicate in English, but only in Spanish.” (R. 78). This corresponds with the ALJ's RFC determination, which found that Plaintiff “may tolerate simple, routine work not performed at a production rate pace, no more than occasional interactions with supervisors and co-workers and no more than brief, superficial interactions with the general public with such interactions not being a part of the general job duties, and must not be required to read or write in any language, and can only communicate in Spanish.” (R. 27). The ALJ further posited that the hypothetical individual would be working a forty-hour workweek, eight hours per day, five days per week, with a thirtyminute meal break in the middle of the shift and two fifteen-minute breaks before and after the meal break. (R. 79).
In response to the hypothetical, the VE testified that the individual may work as: (1) a salvage laborer, DOT 929.687-022, of which there are 10,000 jobs; (2) a cleaner, DOT 323.687014, of which there are 100,000 jobs; or (3) a dishwasher, DOT 318.687-010, of which there are 107,000 jobs. (R. 77-78). The VE testified that there are only limited language skills required for these jobs, and, moreover, “these jobs can be demonstrated to learn them, so . . . all three of those jobs could still be performed,” and there would be no reduction in the number of available jobs. (R. 78). When asked how much time off-task an employer would tolerate, the VE responded that the employee may be off task “10% of the time, or 6 minutes per hour, but no more than that, on an ongoing or chronic basis.” (R. 79). Furthermore, employers will not tolerate more than one absence per month on a consistent basis. (Id.).
As an initial matter, where the “Court finds the ALJ's RFC determination supported by substantial evidence,” it will generally “find[] no error in the hypothetical presented to the VE.” Dianne H. v. Kijakazi, 1:21-CV-06235-GRJ, 2022 WL 17251583, at *7 (S.D.N.Y. Nov. 28, 2022). Here, as stated supra Section II.D.2, the ALJ's RFC determination is supported by substantial evidence. Thus, the ALJ did not err in relying on his hypothetical to the VE, which included his RFC finding. Moreover, at step five, the ALJ identified over 200,000 available jobs in the national economy. (R. 31). Courts have found that “a total number over 17,000 is sufficient to satisfy the Commissioner's step five burden.” Dianne H., 2022 WL 17251583, at *8. Therefore, a total number of over 200,000 is certainly sufficient. See Pardee v. Astrue, 631 F.Supp.2d 200, 222 (N.D.N.Y. 2009) (holding that “[i]t is well-established that elicitation of testimony from a vocational expert is a proper means of fulfilling the agency's burden at step five”).
Finally, the ALJ's decision not to rely on the VE's testimony that certain jobs could be problematic if Plaintiff could not communicate, was not in error. The VE stated that she “could see” there being a problem if an individual was unable to communicate, because “if there was a problem with the dishwasher machine, for instance, and . . . they weren't able to communicate that, or have questions if they didn't understand what their job requirements were . . . I could see that ultimately [] could be problematic on the job and may ultimately lead to termination.” (R. 82). However, the ALJ found that the record did not support a finding that Plaintiff could not communicate since the ALJ did not credit Plaintiff's, nor his mother's, testimony that Plaintiff does not speak, as record evidence showed Plaintiff frequently spoke at his appointments, and he testified at his hearing. Regardless, the VE testified that two of the three jobs she listed would not require Plaintiff to communicate with others, so even if the ALJ was wrong to find that
Plaintiff could communicate with others, that error would not have affected his overall finding since it still left Plaintiff eligible for over 100,000 jobs.
Accordingly, I conclude and respectfully recommend finding that the ALJ's decision is supported by substantial evidence.
IV. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that the Commissioner's motion be granted and the case be dismissed.
The Clerk of Court is respectfully requested to mail a copy of this Report and Recommendation to the pro se Plaintiff.
V. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report and Recommendation to serve and file written objections. See Fed.R.Civ.P. 6(a) and (d) (rules for computing time). If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Nelson S. Roman at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at said Courthouse.
Requests for extensions of time to file objections must be made to the Honorable Nelson S. Roman and not to the undersigned. Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b), 6(d), 72(b); Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008).