Opinion
20-CV-2717 (AT) (JLC)
07-19-2021
PAUL MICHAEL PEPE, Plaintiff, v. KILOLO KIJAKAZI, [1]Acting Commissioner, Social Security Administration, Defendant.
REPORT & RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
To the Honorable Analisa Torres, United States District Judge:
Plaintiff Paul Michael Pepe seeks judicial review of a final determination by defendant Kilolo Kijakazi, the Acting Commissioner of the Social Security Administration, denying Pepe's application for disability insurance benefits under the Social Security Act. The parties have cross-moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that Pepe's motion be granted, the Commissioner's cross-motion be denied, and the case be remanded for further proceedings.
I. BACKGROUND
A. Procedural Background
Pepe filed for Social Security Disability Insurance Benefits (“DIB”) on February 2, 2012, alleging a disability onset date of January 1, 2012. See Administrative Record (“AR”), Dkt. No. 16, at 12. About two months later, on April 18, 2012, Pepe filed an application for Supplemental Security Income (“SSI”). Id. Pepe alleged a disability due to sciatica, peripheral neuropathy of both legs and possibly of both arms, carpal tunnel syndrome of the left hand and possibly of the right hand, loss of muscle mass of both feet, and deteriorated discs of the lower back. Id. at 14. The Social Security Administration (“SSA”) denied Pepe's claim on June 21, 2012. Id. at 12. On July 31, 2012, Pepe requested a hearing before an Administrative Law Judge (“ALJ”). He appeared before ALJ Robert Gonzalez in Goshen, New York on August 15, 2013. Id. at 12. ALJ Gonzalez issued a decision dated May 2, 2014, in which he found that Pepe was not disabled. Id. at 9-28. On June 27, 2014, Pepe sought review of the ALJ's decision, which the Appeals Council subsequently denied on August 17, 2015, rendering the ALJ's decision final. Id. at 1113-16.
The page numbers refer to the sequential numbering of the Administrative Record provided on the bottom right corner of the page, not the numbers produced by the Electronic Case Filing System.
Peripheral neuropathy, which is the result of damage to the nerves located outside of the brain and spinal cord (peripheral nerves), often causes weakness, numbness and pain, usually in the hands and feet. Peripheral neuropathy, MAYO CLINIC, https://www.mayoclinic.org/diseases-conditions/peripheral-neuropathy/symptomscauses/syc-20352061 (last visited July 19, 2021). Sciatica refers to pain that radiates along the path of the sciatic nerve, which branches from the lower back through the hips and buttocks and down each leg. Sciatica, MAYO CLINIC, https://www.mayoclinic.org/diseases-conditions/sciatica/symptoms-causes/syc-20377435 (last visited July 19, 2021).
Pepe timely commenced his first federal action on October 14, 2015, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Id. at 1119. On August 5, 2016, the Honorable Alvin K. Hellerstein reversed the SSA's decision, concluding that there was a lack of substantial evidence that there were jobs in the national economy that Pepe could perform. Id. at 1222. Judge Hellerstein accordingly remanded the case for further proceedings and a judgment was issued on September 26, 2016. Id. at 1123.
Following the court's remand, on September 28, 2018, Pepe appeared before the same ALJ. Id. at 1046. On May 1, 2019, ALJ Gonzalez again denied Pepe's claim for DIB and SSI. Id. at 1011-35. On May 31, 2019, Pepe requested a review of the ALJ's decision, which the Appeals Council denied on January 27, 2020, making the second ALJ decision final. Id. at 1004-07.
Pepe commenced this action on April 1, 2020. Dkt. No. 1. The Commissioner answered Pepe's complaint by filing the administrative record on October 19, 2020. Dkt. No. 16. On January 19, 2021, Pepe moved for judgment on the pleadings seeking a remand for further administrative proceedings and submitted a memorandum of law in support of his motion. Notice of Motion, Dkt. No. 19; Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment on the Pleadings (“Pl. Mem.”), Dkt. No. 20. The Commissioner crossmoved for judgment on the pleadings on April 21, 2021 and submitted a memorandum in support of his cross-motion. Notice of Cross-Motion, Dkt. No. 23; Memorandum of Law in Opposition to Plaintiff's Motion for Judgment on the Pleadings and in Support of the Commissioner's Cross-Motion for Judgment on the Pleadings (“Def. Mem.”), Dkt. No. 24. No reply papers were filed.
At the time of the filing of the complaint, Pepe resided in Middletown, New York, which is located in this District. Dkt. No. 1, at ¶2.
While Pepe seeks a reversal of the Commissioner's decision that he was not disabled and a remand for benefits, or alternatively a remand before a different ALJ in his memorandum of law (though not in his notice of motion), Pl. Mem. at 26, the record before the Court does not support either of those forms of relief, nor does Pepe provide any arguments as to why those forms of relief are appropriate. See, e.g., Williams v. Apfel, 204 F.3d 48, 50 (2d Cir. 1999) (court may remand solely for calculation of benefits when “the records provide[] persuasive evidence of total disability that render[s] any further proceedings pointless”); Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (“When . . . the ALJ has applied an improper legal standard, [the court has], on numerous occasions, remanded to the [Commissioner] for further development of the evidence.”). Accordingly, the Court will assess only whether a remand for further proceedings is justified or not. See, e.g., Urena v. Berryhill, No. 18-CV-3645 (JLC), 2019 WL 1748131, at *14 n.8 (S.D.N.Y. Apr. 19, 2019) (given incompleteness of record, court did not remand solely for calculation of benefits, citing Williams and Pratt).
B. The Administrative Record
1. Pepe's Background
Pepe was born on January 10, 1978 and was 33 years old on his alleged onset date of disability (January 1, 2012). AR at 24, 17. At the time of his first hearing, Pepe lived with his fiancee, his five-year-old son, and his eight-year-old stepdaughter. Id. at 38, 54. Pepe's fiancee received disability benefits due to physical and emotional disabilities. Id. at 37. Pepe graduated high school and received no further education. Id. at 38-39. From 1998 to 2011, Pepe worked in multiple positions, including as a parking lot attendant, kennel worker, file clerk, cashier, and grocery stock worker. Id. at 42, 1101. Pepe stopped working in July 2011. Id. at 42.
2. Relevant Medical Evidence
a. Treatment History
i. Dr. David S. Kang, M.D. -Treating Physician
Dr. David Kang, a physician at Crystal Run Healthcare, treated Pepe at least 20 times from 2010 to 2016. Id. at 2488-90 (November 8, 2016), 2563-66 (September 22, 2016), 2669-72 (October 20, 2015), 3165-69 (April 10, 2015), 318489 (March 19, 2015), 953-96 (January 14, 2014), 468-71 (July 10, 2013), 485-88 (April 10, 2013), 629-31 (December 19, 2012), 516-18 (October 10, 2012), 620-22 (October 8, 2012), 538-39 (June 27, 2012), 242 (January 27, 2012), 262-63 (October 31, 2011), 289-90 (September 29, 2011), 306-07 (August 16, 2011), 317-22 (August 2, 2011), 379-80 (February 8, 2011), 388-89 (September 10, 2010), and 393-95 (January 29, 2010). On February 22, 2011, Pepe described experiencing back pain resulting from slipping on ice and falling on his arm and side. Id. at 367. On July 26, 2011, Pepe reported pain at the lower back extending to the left groin. Id. at 320. Although Pepe took Naprosyn and Flexeril to manage his pain, he reported that nothing relieved it and that it would become worse with movement. Id. Pepe saw Dr. Kang again on August 2, 2011 for back pain and reported it had become worse. Id. at 317. The pain extended from the lower back to the hip, then went further down to the left thigh. Id. Two weeks later, on August 16, 2011, Pepe reported “pain of 3” in his back and described the pain as “constant” and “dull.” Id. at 306. Pepe complained that nothing would ease the pain and that it was exacerbated when he bent. Id.
Dr. Kang, along with other practitioners, made various observations and provided treatment regarding Pepe's mental health. Because the parties' dispute does not involve Pepe's mental health diagnoses, the Court will only discuss the medical history relevant to Pepe's alleged physical disabilities.
On September 28, 2011, Dr. Kang noted that Tramadol and Flexeril offered “min[imum] relief” for Pepe's back pain, and prescribed Vicodin “at night for worsening of back pain.” Id. at 290. On October 31, 2011, Pepe stated that he was experiencing “tingling in fingers and toes.” Id. at 262. Dr. Kang further detected pain in both of Pepe's shoulder joints in December 2012. Id. at 508. A month later, Pepe reported that while he could relieve his pain by stretching, the pain became worse while walking. Id. at 503. Dr. Kang again noted on April 10, 2013 that Pepe was experiencing “spasms in the lower back. Positive straight leg on [the] left side at 50 deg.” Id. at 487. After three months of treatment, on July 13, 2013, Dr. Kang recorded a “spasm in lower back bil. slight atrophy of hand muscles” and that Pepe had “weakness and atrophy of muscles in hands” and should accordingly “continue with pain management.” Id. at 470. Over time, Dr. Kang prescribed medication, such as Flexeril, Ibuprofen, Percocet, Ultram, and vitamin B12 injections. Id. at 470-71, 509. During a follow-up visit on January 14, 2014, Pepe reported that his back pain switched “on and off” and that he still experienced numbness and tingling despite taking the prescribed medication. Id. at 953.
A straight leg test assesses lumbosacral nerve root irritation and a lumbar disc herniation commonly results in a positive test. Gaston O. Camino Willhuber & Nicolas S. Piuzzi., Straight Leg Raise Test, NATIONAL CENTER FOR BIOTECHNOLOGY INFORMATION (Feb. 8, 2021), https://www.ncbi.nlm.nih.gov/books/NBK539717/.
Dr. Kang completed two medical source statements on Pepe's behalf. Id. at 557-59, 561-62. Dr. Kang completed the first medical source statement on October 8, 2012. Id. at 557-59. Noting that Pepe was experiencing back pain, B-12 deficiency, peripheral neuropathy, and numbness in his feet and hands, Dr. Kang opined that Pepe could sit for less than two-to-four hours and stand for less than an hour in an 8-hour workday. Id. at 557. According to Dr. Kang, Pepe could occasionally lift or carry up to 20 pounds, rarely lift or carry up to 25 pounds but never lift or carry objects above 50 pounds. Id. at 558. Dr. Kang observed that Pepe could occasionally push and pull with his upper extremities, but never with lower extremities. Id. Dr. Kang noted that Pepe could occasionally climb stairs, but never climb ramps, ladders, rope, or scaffold or bend, stoop, balance, kneel, or crouch. Id. Dr. Kang further found that Pepe could occasionally reach in all directions, handle, finger, and feel. Id. Dr. Kang recommended that Pepe take 15-minute-long unscheduled breaks, walking breaks and reclining breaks every half an hour. Id. Lastly, Dr. Kang opined that Pepe would likely be absent from work for more than three days in a month due to his impairments. Id. at 559.
Dr. Kang issued a second medical source statement on July 10, 2013. Id. at 561-62. Noting that Pepe experienced “back pain, numbness in hands, and weakness, ” Dr. Kang opined that Pepe should sit for less than two hours and stand and walk for less than two hours in an eight-hour workday. Id. at 561. Dr. Kang also suggested that Pepe needed to periodically alternate between sitting and standing every 20 minutes to relieve pain or discomfort. Id. He observed that Pepe could rarely lift or carry less than 10 pounds, and he should not push or pull. Id. Dr. Kang found that Pepe could not climb stairs, ramps, ladder, rope, or scaffold, and that he could not bend, stoop, kneel, or crouch, but could occasionally balance. Id. Dr. Kang also noted that Pepe could only occasionally reach in all directions but could rarely handle, finger, or feel. Id. at 562. Dr. Kang opined that Pepe required unscheduled breaks, walking breaks, and reclining breaks every 20 minutes with each break lasting 10-20 minutes. Id. Lastly, Dr. Kang further opined that Pepe would likely be away from work given his impairments for more than three days in a month. Id.
ii. Kaiyu Ma, M.D., Ph.D. -Treating Physician
Kaiyu Ma, M.D., Ph.D, a neurologist also at Crystal Run Healthcare, treated Pepe on at least six occasions for his low back pain, muscle spasm and sacroiliac joint dysfunction, carpal tunnel syndrome, muscle atrophy, radiculopathy, impaired memory, and depression beginning in October 2011 until April 2012. Id. at 278-80, 252-54, 227-30, 414-16, 428-30, 437-38. Pepe began seeing Dr. Ma on October 10, 2011 for his back pain and reported that he experienced pain and numbness in his hands and feet. Id. Dr. Ma recommended that Pepe could not return to work at that time. Id. at 280-81. In 2012, Pepe reported that the pain in his lower back was “aching, dull.” Id. at 220. Dr. Ma eventually diagnosed Pepe with peripheral neuropathy and lumbosacral radiculopathies, carpal tunnel syndrome, bilateral peroneal nerve neuropathy, left sciatic neuropathy, and vitamin B-12 deficiencies. Id. at 221. During an appointment on March 23, 2012, Pepe reported that his lower back pain had worsened, with the level of pain increasing from 4 out of 10 to 8 out of 10 over the preceding week. Id. at 234. As a result, in April 2012, Dr. Ma scheduled a lumbar puncture procedure. Id. at 230.
iii. Dr. Bindu Pathrose, D.O. -Treating Physician
Dr. Bindu Pathrose, also a physician at Crystal Run Healthcare, treated Pepe at least 14 times between August 2011 and August 2017, primarily for lower back symptoms. Id. at 2997-3002, 2887-90, 2479-83, 2440-44, 2406-11, 830-34, 63336, 601-06, 502-05, 473-76, 311-15, 296-99, 268, 265-67, 234-36, 220-21. On September 22, 2011, Dr. Pathrose observed that Pepe could “sit to stand independently with good standing balance, ” and he saw no antalgic gait. Id. at 297. Pepe stated that his pain went from 4 out of 10 to an 8 out of 10 in the week before his visit on February 20, 2012. Id. at 234. Pepe also reported that his back pain was exacerbated with bending, lifting, and turning. Id. at 235.
After his pain again rose to a level of 8 out of 10, Pepe visited Dr. Pathrose for pain management on May 14, 2013. Id. at 473. Earlier that day, Pepe was given a Toradol shot at urgent care and he described his pain as “cramping, sharp, and shooting.” Id. Pepe reported that the Percocet he obtained from Dr. Kang's prescription “was not effective enough.” Id. at 475. Dr. Pathrose noted that Pepe had tight hamstrings bilaterally, muscle atrophy, and an antalgic gait. Id. at 474. To alleviate his pain, Dr. Pathrose prescribed pain medication throughout the years, including Tramadol, Percocet, Ultram, Flexeril, Vicodin, Gabapentin, and Oxycodone. Id. at 297, 475, 477, 479, 480, 776.
A Toradol shot, or a Ketorolac injection, is used for the short-term relief of moderately severe pain. Ketorolac Injection, U.S. NATIONAL LIBRARY OF MEDICINE, https://medlineplus.gov/druginfo/meds/a614011.html (last visited July 19, 2021).
iv. Syed Asim Husain D.O. - Treating Physician
Dr. Syed Husain also treated Pepe at Crystal Run Healthcare for pain management. On April 12, 2012, Pepe reported experiencing a “pain of 5 located in low back into legs” and described the pain as “aching, dull, throbbing.” Id. at 435. Dr. Husain noted that the pain had existed for years and worsened with movement while it improved with “[r]est, medications, [and] [s]tretching.” Id. A year later, Pepe again reported a “pain of 5 located in lower back r[a]diating to [left] knee” and described the pain as “dull, throbbing.” Id. at 482. The pain became worse with “[c]old, bending, twisting, prolonged sitting/standing.” Id.
b. Opinion Evidence
i. Mark Johnston, M.D. - Internal Medicine
Following a referral from the Division of Disability Determination, Dr. Mark Johnston administered an internal medicine examination on May 30, 2012. Id. at 448. During the examination, Pepe reported that he had been experiencing intermittent low back pain for the preceding 18 years and a baseline of throbbing pain with a severity of 3 out of 10. Id. Pepe noted frequent, unpredictable episodes of worsening pain. Id. He mentioned that bending, lifting, or simply waking up in the morning caused more discomfort, and that the pain would rise to 9 out of 10 in severity. Id. Pepe underwent physical therapy, which was only “moderately helpful.” Id. He also took prescribed medication, which helped slightly. Id. At the time of the examination, Pepe planned to begin a series of lumbar injections. Id.
Lumbar injections refer to epidural steroid injections that deliver powerful antiinflammatory medicine directly into the space outside of the sac of fluid around the spinal cord. Epidural injections for back pain, U.S. NATIONAL LIBRARY OF MEDICINE, https://medlLneplus.gov/ency/artLcle/007485.htm (last visited July 19, 2021).
Pepe also reported experiencing numbness in the volar aspects of both forearms, as well as pain and tingling in every finger, which Dr. Johnston believed to signify the existence of bilateral carpal tunnel syndrome and suspected the presence of a diffused polyneuropathy. Id. Dr. Johnston also noted that Pepe “lost muscle mass in his hands and feet, ” and that his feet had markedly higher arches. Id. at 448, 450. Dr. Johnston additionally noted that although the tests had been inconclusive, Pepe's vitamin B12 levels were low and B12 supplementation were not improving his symptoms. Id. at 448. In addition, Dr. Johnston noted that Pepe's hand and finger dexterity remained intact, with a “grip strength 5/5 bilaterally.” Id. at 451. Overall, Dr. Johnston diagnosed Pepe with chronic low back pain, bilateral carpal tunnel syndrome, polyneuropathy with unknown causes, and Vitamin B12 deficiency. Id. at 448. Pepe had a “moderate limitation” when bending and lifting due to low back pain. Id. at 451. He also had a “mild limitation of prolonged or repeated use of both hands for gross manipulation” due to bilateral carpal tunnel syndrome. Id. Dr. Johnston also observed that Pepe had a normal gait and stance and recorded that Pepe could “walk on heels and toes without difficulty.” Id. at 449. Pepe could also rise from the chair with no difficulty. Id. Dr. Johnston noted that Pepe was taking Flexeril, Ultram, Vitamin B12, and Claritin. Id.
Lastly, Dr. Johnston noted that when asked about his daily activities, Pepe reported that he could cook and clean independently but occasionally needed assistance. Id. at 449. Additionally, he could do laundry but not heavy lifting and could shower and dress without help. Id. He also shopped once per month and provided daily childcare. Id.
ii. Rita Figueroa, M.D. - Internal Medicine
On October 5, 2017, Dr. Rita Figueroa administered an internal medicine examination also upon a referral from the Division of Disability Determination. Id. at 3222. According to Dr. Figueroa, Pepe's discomfort was exacerbated from intermittent pain to constant pain. Id. Dr. Figueroa noted that Pepe experienced cramping around the ankles and difficulty walking because his feet turned outward as he walked, which would cause him to lose balance. Id. Pepe also reportedly had weakness in the arms and tended to drop things. Id. Between 2014 and 2015, Pepe had a biopsy of the left leg which found polyneuropathy. He also had severe B12 deficiency. Id.
Additionally, Dr. Figueroa observed that Pepe experienced “numbness and tingling in the first three fingers that tended to shoot upward to his arms.” Id. Although he had difficulty opening jars, he could open round doorknobs. Id. Pepe had a poor grip and had difficulty holding pens, pencils, and cigarettes. Id. An EMG further confirmed that Pepe had carpal tunnel syndrome. Id. Pepe also had bilateral ulnar neuropathy, diagnosed in 2015, which was worse in his right hand. Id. He experienced numbness in the last two fingers, which would further extend to the forearms. Id. Pepe planned on seeking a consultation for surgery. Id.
Dr. Figueroa noted that Pepe's low back pain started when he was doing martial arts at age 16. Id. at 3223. At the time of the examination, Pepe reported experiencing constant lower back pain that was twisting and stabbing in character. Id. The pain further extended down to the legs, with the left worse than the right and a severity of 6 out of 10. Id. The pain worsened when bending, lifting, twisting, walking, standing for over 10 minutes, or lifting and carrying over 5 lbs. Id.
In terms of his daily living activities, Pepe could cook, clean, launder, shop, and provide childcare with help from his wife. Id. Pepe reported that he could shower, bathe, and dress occasionally by himself, although he needed assistance most of the time. Id. Pepe would watch TV, listen to the radio, and read. Id. The pain and resulting frustration largely prevented Pepe from developing any hobbies. Id.
In discussing Pepe's fine motor activity of his hands, Dr. Figueroa noted that Pepe's hand and finger dexterity were intact. Id. at 3225. She also observed that Pepe had atrophy of all the interosseous muscles in his hands, with his right hand worse than the left. Id. With a five out of five bilateral grip strength, Pepe could fasten a zipper, button his clothes, and tie knots. Id.
In her medical source statement, Dr. Figueroa assessed that Pepe would have “moderate limitations to prolonged walking and standing, moderate for lifting and carrying, and mild to repetitive bending.” Id. at 3226. Pepe would also have “mild limitations” to activities demanding fine motor skills. Id.
Dr. Figueroa opined that Pepe could continuously lift and carry objects weighing up to 10 pounds, occasionally up to 20. Id. at 3228. He could sit for 8 hours and stand or walk for 30 minutes without interruption. Id. at 3229. Pepe could frequently reach overhead and in all other directions, frequently push and pull, but only occasionally handle, finger, and feel with both hands. Id. at 3230. Moreover, Dr. Figueroa noted that Pepe could occasionally climb stairs and ramps, climb ladders or scaffolds, balance, stoop, kneel, crouch, and crawl. Id. at 3231. Regarding potential work environments, Dr. Figueroa opined that Pepe could occasionally work at unprotected heights. Id. at 3232. He could also continuously move mechanical parts, operate a motor vehicle, work in humid and wet environments, tolerate dust, odors, fumes, and pulmonary irritants, and tolerate extreme cold or heat. Id. However, he could not be exposed to vibrations. Id.
C. ALJ Hearing
Following the district court's remand, Pepe appeared before ALJ Gonzales in White Plains, New York on September 28, 2018, represented by counsel. Id. at 1046. Pepe testified that he previously worked full-time at Poha Grocery Corporation, where he mostly cleaned and restocked the shelves, cleaned the freezers, and picked up deliveries. Id. at 1051-52. In a typical day, Pepe arrived in the morning and worked for about four hours unloading trucks, which would entail carrying cases weighing up 90 pounds and bags weighing up 60 pounds. Id. at 1052-53. After his morning shift, Pepe would go home and then return in the afternoon or evening to complete an eight-hour shift, in which he would restock the shelves, cleaned the floor, and performed custodial work. Id. at 1053. Pepe further testified that he ended his employment there in 2011 because of back pain, stating that he had been mopping while “[his] back went on [him], ” causing him to fall onto his knees. Id. at 1054. Pepe attempted to work the following day, but could barely lift a two-pound box of cat food. Id.
When asked about the treatment he had received since his first hearing, Pepe testified that he took medication and did exercises to strengthen his back, hands, and legs, but had had no surgical procedures. Id. Pepe received injections, but his back hurt even worse after receiving some of them. Id. Other injections were effective for about a week before the pain returned. Id. at 1054-55. Pepe was scheduled to try different types of injections, but due to staff changes his shots were never administered. Id. at 1055. Pepe had not been working since 2011. Id.
Pepe testified that he continued to see Dr. Pathrose, his original pain management doctor, for his sciatica, polyneuropathy, carpal tunnel, and ulnar palsy. Id. at 1060. Pepe switched to another doctor after Dr. Pathrose left the practice. Id. The doctors at Crystal Run stopped prescribing pain medication after Pepe's memory and motor skills worsened. Id. On June 26, 2015, Pepe's doctors tried to wean him off narcotic pain medication due to a urine drug scan discrepancy, which came up positive for marijuana and alcohol. Id. at 1061. Pepe testified that he remembered having a few drinks while hanging out at his wife's friend's house, but he did not recall having marijuana. Id. However, since then, his doctors stopped prescribing opiates to him. Id. at 1062. Another doctor also administered B12 injections for Pepe about twice a month to prevent the neuropathy from getting worse. Id. Pepe also testified that Dr. Pathrose sent him to a physical therapist, Dr. Daniel Crawford, to have a functional capacity evaluation. Id. at 1064.
Pepe testified that at the time of the hearing, he could not trim his own beard because holding the trimmer had been quite painful for him. Id. at 1070. When asked if he would be able to carry a gallon of milk, Pepe estimated that he would only be able to carry it for about five or ten feet before having to let go of the handle and begin holding it from the bottom because his fingers would lose grip. Id. The ALJ then asked Pepe how long he could stand or walk before needing to stop, to which Pepe responded that he could walk for about 25 feet before having to stop because of the sciatica in his right knee and leg. Id. He elaborated that after walking 25 feet his legs get “wobbly” and he has to sit down. Id. Pepe also reported that his leg cramps caused him sleeping problems because of the need to walk around. Id. at 1071. As a result, Pepe could only sleep four hours at night, which would make him “very groggy and constantly doz[e] off” during the day. Id. Additionally, Pepe explained that he broke his left hand in 2017, when he slipped on ice. Id. at 1090. Pepe further testified that although he is right-hand dominant, he constantly drops coffee and cigarettes because of the numbness in his right hand. Id.
David Vandergoot, a vocational expert, also testified at the hearing. Id. at 1075. As the ALJ instructed, Vandergoot was required to testify regarding a hypothetical person with Pepe's age, education, and work history, and who could engage in a “full range of sedentary exertional work.” Id. at 1079. The hypothetical person could frequently reach in all directions bilaterally, push and pull, and handle, finger, and feel bilaterally. Id. In addition, this person could occasionally climb and descend stairs and ramps; occasionally climb ladders, ropes, and scaffolds; and occasionally balance, stoop, kneel, crouch, and crawl. Id. The ALJ also instructed Vandergoot to imagine that the person could not work with vibration, at unprotected heights, or temperature extremes. Id. Nonetheless, the person could understand, remember, and perform simple work, and adapt to routine workplace changes. Id. Vandergoot opined that such a hypothetical person could work as an addresser, waxer, final assembler, and order clerk. Id. at 1079-80. Further, Vandergoot testified that a person with the ability to engage in a full range of sedentary exertional work along with the same above-listed limitations could not perform any of Pepe's past work, including a kennel attendant and a commercial cleaner. Id. at 1078-79.
Vandergoot also testified that if, in addition to the above-mentioned limitations, this hypothetical person could occasionally interact with supervisors, coworkers, and the public, he could not only work as an order clerk but could become a table worker as well. Id. at 1081-82. Vandergoot noted that employees at these jobs could take a 15-minute scheduled break every two-to-two-and-a-half hours and a half-hour lunch break. Id. at 1082. On a typical workday, Vandergoot testified that a worker in the above-mentioned positions could take ten percent of their work hours off, amounting to 40 to 50 minutes. Id. at 1083. When questioned by Pepe's counsel, Vandergoot stated that a person working in these positions could take no more than two days off in a month. Id. at 1087.
II. DISCUSSION
A. Legal Standards
1. Judicial Review of Commissioner's Determinations
An individual may obtain judicial review of a final decision of the Commissioner in the “district court of the United States for the judicial district in which the plaintiff resides.” 42 U.S.C. § 405(g) (2018). The district court must determine whether the Commissioner's final decision applied the correct legal standards and whether it is supported by substantial evidence. Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004). “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.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks and alterations omitted); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (“Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficient] evidence' to support the agency's factual determinations . . . . whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high.” (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
The substantial evidence standard is a “very deferential standard of review.” Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012). The Court “must be careful not to substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result upon a de novo review.” DeJesus v. Astrue, 762 F.Supp.2d 673, 683 (S.D.N.Y. 2011) (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)) (internal quotation marks and alterations omitted). “[O]nce an ALJ finds facts, [a court] can reject those facts ‘only if a reasonable factfinder would have to conclude otherwise.'” Brault, 683 F.3d at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)) (emphasis omitted).
In weighing whether substantial evidence exists to support the Commissioner's decision, “the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Selian, 708 F.3d at 417 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)). On the basis of this review, the court may “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 . . . for a rehearing.” 42 U.S.C. § 405(g) (2018). However, “[w]hen there are gaps in the administrative record or the ALJ has applied an improper legal standard, [the court has], on numerous occasions, remanded to the [Commissioner] for further development of the evidence.” Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)) (alteration in original).
2. Commissioner's Determination of Disability
Under the Social Security Act, “disability” is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (2018); accord 42 U.S.C. § 1382c(a)(3)(A) (2018). Physical or mental impairments must 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. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In assessing a claimant's impairments and determining whether they meet the statutory definition of disability, the Commissioner “must make a thorough inquiry into the claimant's condition and must be mindful that ‘the Social Security Act is a remedial statute, to be broadly construed and liberally applied.'” Mongeur, 722 F.2d at 1037 (quoting Gold v. Sec'y of H.E.W., 463 F.2d 38, 41 (2d Cir. 1972)). Specifically, the Commissioner's decision must take into account factors such as: “(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience.” Id. (citations omitted).
a. Five-Step Inquiry
“The Social Security Administration has outlined a ‘five-step, sequential evaluation process' to determine whether a claimant is disabled[.]” Estrella v. Berryhill, 925 F.3d 90, 94 (2d Cir. 2019) (citations omitted); 20 C.F.R. § 404.1520(a)(4) (2020). First, the Commissioner must establish whether the claimant is presently employed. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is unemployed, the Commissioner goes to the second step and determines whether the claimant has a “severe” impairment restricting her ability to work. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant has such an impairment, the Commissioner moves to the third step and considers whether the medical severity of the impairment “meets or equals” a listing in Appendix One of Subpart P of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is considered disabled. Id.; 20 C.F.R. § 404.1520(d). If not, the Commissioner continues to the fourth step and determines whether the claimant has the residual functional capacity (“RFC”) to perform his past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). Finally, if the claimant does not have the RFC to perform past relevant work, the Commissioner completes the fifth step and ascertains whether the claimant possesses the ability to perform any other work. 20 C.F.R. § 404.1520(a)(4)(v).
The claimant has the burden at the first four steps. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). If the claimant is successful, the burden shifts to the Commissioner at the fifth and final step, where the Commissioner must establish that the claimant has the ability to perform some work in the national economy. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).
b. Duty to Develop the Record
“Social Security proceedings are inquisitorial rather than adversarial.” Sims v. Apfel, 530 U.S. 103, 110-11 (2000). Consequently, “the social security ALJ, unlike a judge in a trial, must on behalf of all claimants . . . affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation marks omitted). As part of this duty, the ALJ must “investigate the facts and develop the arguments both for and against granting benefits.” Sims, 530 U.S. at 111. Specifically, under the applicable regulations, the ALJ is required to develop a claimant's complete medical history. Pratts, 94 F.3d at 37 (citing 20 C.F.R. §§ 404.1512(d)-(f) (2020)). This responsibility “encompasses not only the duty to obtain a claimant's medical records and reports but also the duty to question the claimant adequately about any subjective complaints and the impact of the claimant's impairments on the claimant's functional capacity.” Pena v. Astrue, No. 07-CV-11099 (GWG), 2008 WL 5111317, at *8 (S.D.N.Y. Dec. 3, 2008) (citations omitted).
Whether the ALJ has satisfied this duty to develop the record is a threshold question. Before determining whether the Commissioner's final decision is supported by substantial evidence under 42 U.S.C. § 405(g), “the court must first be satisfied that the ALJ provided plaintiff with ‘a full hearing under the Secretary's regulations' and also fully and completely developed the administrative record.” Scott v. Astrue, No. 09-CV-3999 (KAM) (RLM), 2010 WL 2736879, at *12 (E.D.N.Y. July 9, 2010) (quoting Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)); see also Rodriguez v. Barnhart, No. 02-CV-5782 (FB), 2003 WL 22709204, at *3 (E.D.N.Y. Nov. 7, 2003) (“The responsibility of an ALJ to fully develop the record is a bedrock principle of Social Security law.” (citing Brown v. Apfel, 174 F.3d 59 (2d Cir. 1999))). The ALJ must develop the record even where the claimant has legal counsel. See, e.g., Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). Remand is appropriate where this duty is not discharged. See, e.g., Moran, 569 F.3d at 114-15 (“We vacate not because the ALJ's decision was not supported by substantial evidence but because the ALJ should have developed a more comprehensive record before making his decision.”).
c. Treating Physician's Rule
“Regardless of its source, the ALJ must evaluate every medical opinion in determining whether a claimant is disabled under the [Social Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. §§ 404.1527(c), 416.927(d) (2020)) (internal quotation marks omitted). A treating physician's opinion is given controlling weight, provided the opinion as to the nature and severity of an impairment “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2); 416.927(d)(2). The regulations define a treating physician as the claimant's “own physician, psychologist, or other acceptable medical source who provides [the claimant] . . . with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the claimant].” 20 C.F.R. § 404.1502 (2020). Deference to such medical providers is appropriate because they “are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical evidence alone or from reports of individual examinations.” 20 C.F.R. §§ 404.1527(c)(2); 416.927(d)(2).
Revisions to the regulations in 2017 included modifying 20 C.F.R. § 404.1527 to clarify and add definitions for how to evaluate opinion evidence for claims filed before March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5869-70 (Jan. 18, 2017). Accordingly, this Report and Recommendation applies the regulations that were in effect when Pepe's claims were filed with the added clarifications provided in the 2017 revisions.
A treating physician's opinion is not always controlling. For example, a legal conclusion “that the claimant is ‘disabled' or ‘unable to work' is not controlling, ” because such opinions are reserved for the Commissioner. Guzman v. Astrue, No. 09-CV-3928 (PKC), 2011 WL 666194, at *10 (S.D.N.Y. Feb. 4, 2011) (citing 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1)); accord Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“A treating physician's statement that the claimant is disabled cannot itself be determinative.”). Additionally, where “the treating physician issued opinions that [were] not consistent with other substantial evidence in the record, such as the opinion of other medical experts, the treating physician's opinion is not afforded controlling weight.” Pena ex rel. E.R., 2013 WL 1210932, at *15 (quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)) (internal quotation marks omitted) (alteration in original); see also Snell, 177 F.3d at 133 (“[T]he less consistent [the treating physician's] opinion is with the record as a whole, the less weight it will be given.”).
Importantly, however, “[t]o the extent that [the] record is unclear, the Commissioner has an affirmative duty to ‘fill any clear gaps in the administrative record' before rejecting a treating physician's diagnosis.” Selian, 708 F.3d at 420 (quoting Burgess, 537 F.3d at 129); see Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) (discussing ALJ's duty to seek additional information from treating physician if clinical findings are inadequate). As a result, “the ‘treating physician rule' is inextricably linked to a broader duty to develop the record. Proper application of the rule ensures that the claimant's record is comprehensive, including all relevant treating physician diagnoses and opinions, and requires the ALJ to explain clearly how these opinions relate to the final determination.” Lacava v. Astrue, No. 11-CV-7727 (WHP) (SN), 2012 WL 6621731, at *13 (S.D.N.Y. Nov. 27, 2012) (“In this Circuit, the [treating physician] rule is robust.”), adopted by 2012 WL 6621722 (Dec. 19, 2012).
To determine how much weight a treating physician's opinion should carry, the ALJ must consider the so-called “Burgess factors” outlined by the Second Circuit: “(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Estrella, 925 F.3d at 95-96 (citation omitted); see also Burgess, 537 F.3d at 129; 20 C.F.R. § 404.1527(c)(2) (2020). This determination is a two-step process. “First, the ALJ must decide whether the opinion is entitled to controlling weight.” Estrella, 925 F.3d at 95. Second, if, based on these considerations, the ALJ declines to give controlling weight to the treating physician's opinion, the ALJ must nonetheless “comprehensively set forth reasons for the weight” ultimately assigned to the treating source. Halloran, 362 F.3d at 33; accord Snell, 177 F.3d at 133 (responsibility of determining weight to be afforded does not “exempt administrative decisionmakers from their obligation . . . to explain why a treating physician's opinions are not being credited”) (referring to Schaal, 134 F.3d at 505 and 20 C.F.R. § 404.1527(d)(2) (2020)). If the ALJ decides that a treating physician's opinion is not entitled to controlling weight, “[a]n ALJ's failure to ‘explicitly' apply these ‘Burgess factors' when [ultimately] assigning weight at step two is a procedural error.” Estrella, 925 F.3d at 96 (quoting Selian, 708 F.3d at 419-20). The regulations require that the SSA “always give good reasons in [its] notice of determination or decision for the weight” given to the treating physician. Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (alteration in original) (citations omitted). Indeed, “[c]ourts have not hesitate[d] to remand [cases] when the Commissioner has not provided good reasons.” Pena ex rel. E.R., 2013 WL 1210932, at *15 (quoting Halloran, 362 F.3d at 33) (second and third alteration in original) (internal quotation marks omitted).
Crucially, “an ALJ's failure to apply the correct legal standard constitutes reversible error if that failure might have affected the disposition of the case.” Lopez v. Berryhill, 448 F.Supp.3d 328, 341 (S.D.N.Y. 2020) (citing Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)). However, the Court need not remand the case if the ALJ only committed harmless error, i.e., where the “application of the correct legal principles to the record could lead only to the same conclusion.” Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (alteration omitted) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987)).
d. Claimant's Credibility
An ALJ's credibility finding as to the claimant's disability is entitled to deference by a reviewing court. Osorio v. Barnhart, No. 04-CV-7515 (DLC), 2006 WL 1464193, at *6 (S.D.N.Y. May 30, 2006). “[A]s with any finding of fact, ‘[i]f the Secretary's findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount a claimant's subjective complaints.” Id. (quoting Aponte v. Sec'y of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)). Still, an ALJ's finding of credibility “must . . . be set forth with sufficient specificity to permit intelligible plenary review of the record.” Pena, 2008 WL 5111317, at *10 (internal quotation marks omitted) (quoting Williams v. Bowen, 859 F.2d 255, 26061 (2d Cir. 1988)). “The ALJ must make this [credibility] determination ‘in light of the objective medical evidence and other evidence regarding the true extent of the alleged symptoms.'” Id. (quoting Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984)).
SSA regulations provide that statements of subjective pain and other symptoms alone cannot establish a disability. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citing 20 C.F.R. § 404.1529(a)). Accordingly, the ALJ must follow a two-step framework for evaluating allegations of pain and other limitations. Id. First, the ALJ considers whether the claimant suffers from a “medically determinable impairment that could reasonably be expected to produce” the symptoms alleged. Id. (citing 20 C.F.R. § 404.1529(b)). “If the claimant does suffer from such an impairment, at the second step, 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. (citing 20 C.F.R. § 404.1529(a)). Among the kinds of evidence that the ALJ must consider (in addition to objective medical evidence) are:
1. The individual's daily activities; 2. [t]he location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. [f]actors that precipitate and aggravate the symptoms; 4. [t]he type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. [t]reatment, other than medication, the individual receives or has received for relief of pain or
other symptoms; 6. [a]ny measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. [a]ny other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.Pena, 2008 WL 5111317, at *11 (citing SSR 96-7p, 1996 WL 374186, at *3 (SSA July 2, 1996)).
B. The ALJ's May 2019 Decision
In his May 1, 2019 decision, the ALJ concluded that Pepe was not disabled beginning January 1, 2012, through the date of his decision. AR at 1011-35. At step one of the five-step inquiry, the ALJ found that Pepe had not been engaged in substantial gainful activity since his alleged onset date. Id. at 1017. At step two, the ALJ found that Pepe had severe impairments, including “bilateral carpal tunnel syndrome, ulnar neuropathy, demyelinating poly-neuropathy, peripheral neuropathy, lumbar spine disc herniation, vitamin B12 deficiency, obesity, cervical spine spondylitic narrowing, thoracic spine small disc protrusions, chronic pain syndrome, sleep apnea, depression, anxiety disorder, post-traumatic stress disorder (PTSD), left fifth metacarpal fracture and trochanteric bursitis.” Id. at 1017. At step three, the ALJ nonetheless found that these impairments did not meet the severity of those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 1018. Before evaluating step four, the ALJ determined Pepe's RFC and found that Pepe could perform sedentary work “except frequently reaching in all directions bilaterally; frequently pushing and pulling; frequently handling, fingering and feeling bilaterally; occasional use of bilateral foot controls; occasionally climbing and descending stairs and ramps, climbing ladders/ropes/scaffolds, balancing, stooping, kneeling, crouching and crawling[.]” Id. at 1019.
Additionally, the ALJ found that Pepe could not work at unprotected heights or at extreme temperatures. Id. After examining medical imaging results, physical examinations, and x-rays, the ALJ concluded that Pepe's testimony concerning the intensity, persistence, and limiting effects of these symptoms was not entirely consistent with the evidence in the record. Id. at 1020. In addition, the ALJ found that while Pepe was obese, there was no significant problem related to his obesity that would reduce his RFC. Id. at 1021.
The ALJ further found that Pepe's allegations concerning the “nature, intensity, persistence, [and] limiting effects” of his symptoms were inconsistent with the medical signs, laboratory findings, and other evidence in the record. Id. at 1023. The ALJ provided several reasons to support this finding. See id. at 1022-23. First, Pepe described daily activities beyond the extent one would expect for the disabling symptoms and limitations that he reported. Id. at 1023. Pepe testified that he could cook, clean, launder, shop, and perform childcare with assistance. Id. Occasionally, he could shower, bathe, and dress without assistance, although he would need assistance most of the time. Id. Pepe could also watch TV, listen to the radio, and read. Id. Second, the ALJ found that although Pepe had continued to receive medical treatment, including medication, therapy, and injections, none of the medication Pepe took would prevent him from engaging in his RFC. Id. Third, in the ALJ's view, the treating or examining physician's opinion that Pepe was disabled at the time of the hearing was inconsistent with the medical evidence in the record. Id. Fourth, upon examining Pepe's work history, the ALJ found that even though Pepe could no longer engage in his past work of stocking and cleaning, he could “engage in other less demanding work.” Id. Fifth, the ALJ concluded that Pepe's symptoms and related limitations were inconsistent with the evidence in the record. Id. Specifically, according to the ALJ, the record demonstrated a lack of “reduced joint motion, muscle spasm, sensory deficit, and motor disruption that may result from or be associated with the symptoms of pain and functional limitations.” Id. at 1023-24.
Regarding the opinion evidence, the ALJ weighed the medical opinions and afforded “very limited weight” to Dr. Ma's opinion that Pepe should stop working until further examination. Id. at 1024. The ALJ reasoned that Dr. Ma's opinion only contained a “vague assessment” instead of a “function-by-function analysis of [Pepe]'s functional abilities.” Id.
The ALJ also accorded “very little weight” to Dr. Kang's medical source statements because “Dr. Kang is a family medicine doctor.” Id. In addition, the ALJ found that Dr. Kang's assessment of Pepe's limited capacity for sitting was “poorly supported” because multiple evaluations confirmed Pepe's “neurological[] intact[ness] in his lower extremities[.]” Id. The ALJ similarly found that the parts of Dr. Kang's opinion that “preclude[d] postural maneuvers [we]re also poorly supported.” Id.
The ALJ assigned “slight weight” to physical therapist (“PT”) Daniel Crowfoot's functional capacity evaluation. Id. Although the ALJ found that this “assessment [wa]s made by an unrecognized medical source, ” he nonetheless gave him “slight weight except for the sitting limitation, ” which the ALJ believed was poorly supported and inconsistent with the record. Id.
The ALJ accorded “some weight” to Dr. Pathrose's opinion from September 22, 2017, except for its portion regarding Pepe's sitting limitation. Id. The ALJ reasoned that Dr. Pathrose's documentation of Pepe's sitting limitation deviated from the evaluations and findings that Pepe's lower extremities remained neurologically intact. Id. The ALJ also assigned “very little weight” to Dr. Pathrose's note excusing Pepe from work because Dr. Pathrose did not “provide a function-by-function assessment.” Id.
The ALJ assigned “some weight” to consultative physician Dr. Johnston's opinion from May 2012, since he was “an agency expert who examined [Pepe].” Id. The ALJ found Dr. Johnston's assessment of Pepe's conditions to be “well supported[, ]” especially regarding the observation that Pepe had moderate limitations on bending and lifting as well as mild limitations for “prolonged or repeated use of both hands for gross manipulation.” Id. at 1024-25.
The ALJ accorded “overall . . . some weight” to Dr. Figueroa's opinion. Id. at 1025. In particular, the ALJ gave “great weight” to the conclusions regarding “the limitations for sitting, standing, walking and postural limitations” but not to the handling and fingering limitations, because they were “not supported by her own findings on the examination, which found his hand dexterity, . . . and strength intact.” Id. at 1025.
At step four, the ALJ found that Pepe could not perform any past relevant work, relying on the vocational expert testimony. Id. at 1025-26. Pepe previously worked as a “kennel attendant and composite job of commercial cleaner and store laborer, ” all requiring “medium to heavy exertion, ” which Pepe could no longer perform. Id. at 1026.
At step five, after considering Pepe's demographic information, the ALJ determined that Pepe could perform jobs that exist in significant numbers in the national economy. Id. Notably, the ALJ found the “transferability of job skills” immaterial to the determination of disability because Pepe was not disabled under the Medical-Vocational Rules framework. Id. Based on the vocational expert's testimony, the ALJ concluded that Pepe was “capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” Id. at 1027.
In sum, the ALJ found that Pepe was not disabled from January 1, 2012, through the date of his decision. Id.
C. Analysis
Pepe argues that the ALJ's decision should be reversed and remanded because the ALJ erred in (1) not assigning controlling weight to Pepe's treating physicians' opinions, and (2) finding that Pepe retained the residual functional capacity for work activities that require frequent handling, fingering, and feeling. Pl. Mem. at 21-26. The Commissioner counters that the ALJ correctly applied the treating physician rule and that the ALJ's RFC determination is supported by substantial evidence. Def. Mem. at 13-19.
1. The ALJ Did Not Properly Apply the Treating Physician Rule
Pepe argues that the ALJ erroneously applied the treating physician rule, contending that Dr. Kang's opinions were “particularly outcome determinative.” Id. at 23. Pepe also claims that the ALJ failed to follow the Burgess factors in determining the proper weight for Dr. Kang's opinions. Id. at 22. The Commissioner counters that the ALJ properly assigned little weight to Dr. Kang's opinions “because they were not well supported and they were inconsistent with other substantial evidence in the record.” Def. Mem. at 15. In addition, the Commissioner argues that the ALJ properly based his RFC finding on the opinions of Drs. Figueroa, Pathrose, and Johnston; Pepe's unremarkable physical examination findings; PT Crowfoot's assessment; and Pepe's own testimony. Id. at 13-14. The Commissioner further contends that the ALJ properly relied on the consultative physicians' opinions in reaching his decision. Id. at 14.
As a threshold matter, Dr. Kang, who provided medical treatment to Pepe on at least 20 occasions over a seven-year period, is indisputably Pepe's treating physician. See, e.g., Novaro v. Comm'r of Soc. Sec., No. 19-CV-804 (BMC), 2020 WL 7643130, at *3 (E.D.N.Y. Dec. 23, 2020) (doctor whose relationship with claimant “spanned years” deemed treating physician). Accordingly, the ALJ was required to explicitly consider the Burgess factors when deciding to give his opinions less than controlling weight: “(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Estrella, 925 F.3d at 95-96 (citation omitted). While the Second Circuit “does not require ‘slavish recitation of each and every factor,' the ALJ's ‘reasoning and adherence to the regulation' still must be clear from his opinion.” Cabrera v. Comm'r of Soc. Sec., No. 16-CV-4311 (AT) (JLC), 2017 WL 3686760, at *3 (S.D.N.Y. Aug. 25, 2017) (citing Atwater v. Astrue, 512 F. App'x. 67, 70 (2d Cir. 2013)). If the ALJ does not “explicitly” consider these factors, the Court must remand the case unless “a searching review of the record” assures it that the ALJ applied “the substance of the treating physician rule.” Estrella, 925 F.3d at 95. Here, in giving Dr. Kang's opinions less-than-controlling weight, the ALJ failed to consider: (1) the frequency, length, nature, and extent of Pepe and Dr. Kang's treatment relationship; and (2) the congruity between Dr. Kang's opinions and the medical record as a whole regarding Pepe's hand limitations.
First, the ALJ disregarded the substantial length, frequency, and nature of Dr. Kang's treatment history with Pepe in giving his opinion “very little weight, ” reasoning only that he is “a family medicine doctor” and that his assessments regarding Pepe's “capacity for sitting [were] poorly supported.” AR at 1024. However, the ALJ's justifications were inadequate, especially in light of the fact that Pepe's treatment relationship with Dr. Kang “has spanned years.” Novaro, 2020 WL 7643130, at *3. The ALJ failed to consider the nature of Dr. Kang's treatment and his unique understanding of Pepe's symptoms given their lengthy relationship.
Under the treating physician rule, Dr. Kang's opinion is entitled to more weight if he has “reasonable knowledge” of Pepe's impairments. 20 C.F.R. § 404.1527(c)(2)(ii). Accordingly, the ALJ was required to consider how Dr. Kang is uniquely situated to opine as to Pepe's symptoms because Pepe had been seeing him for years specifically for his pain and for the issues with his hands. Id. The ALJ thus committed error. See, e.g., Mongeur, 722 F.2d at 1039 n.2 (“The opinion of a treating physician is accorded extra weight because the continuity of treatment he provides and the doctor/patient relationship he develops place him in a unique position to make a complete and accurate diagnosis of his patient.”); Pantoja Santiago v. Commissioner, No. 18-CV-1226 (KPF) (BCM), 2019 WL 6831533, at *15 (S.D.N.Y. July 23, 2019) (“The treating physician rule recognizes that a treating source is ‘most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations ....'” (quoting 20 C.F.R. §§ 404.1527(c)(2) (2012), 416.927(c)(2) (2012)), adopted by 2019 WL 3798055 (Aug. 13, 2019).
Second, the ALJ erred by not considering the consistency between Dr. Kang's opinions and the record as a whole concerning not only Pepe's ability to use his hands but also the deteriorating nature of Pepe's medical condition. While the ALJ can choose not to afford controlling weight to the treating physician's opinions if his views are “not consistent with other substantial evidence in the record, ” including “the opinions of other medical experts, ” Halloran, 362 F.3d at 32 (citation omitted), that is not the case here. The Commissioner contends that Dr. Figueroa's opinion serves as substantial evidence to support the ALJ's decision. Def. Mem. at 14. However, as discussed below, because Dr. Figueroa is a consultative physician, the ALJ can only give her opinion greater weight than Dr. Kang's if Dr. Kang's opinion is not consistent with the record as a whole.
To that end, the record establishes that Dr. Kang's opinions regarding Pepe's hand impairments were consistent with the consultative examiners' opinions, including at least some of Dr. Figueroa's opinions. For example, in 2012 Dr. Johnston observed that Pepe had “Tinel sign bilaterally[, ] [m]oderate wasting of the interosseous muscles between the third and, fourth, and fifth fingers of the left hand.” AR at 451. In addition, in 2017, Dr. Figueroa observed that Pepe had “atrophy of all the interosseous muscles” while “the right hand was worse than the left.” Id. at 3225. According to Dr. Figueroa, both the Tinel test and Phalen's test were positive. Id. at 3226. Moreover, Dr. Figueroa found that Pepe had a “poor grip” and reported that he experienced “numbness and tingling sensations in the first three fingers that tend[ed] to shoot upward to his arms.” Id. at 3222. Dr. Figueroa also documented that Pepe had trouble holding items such as pens, pencils, and cigarettes, and had difficulty opening jars. Id. Similarly, Dr. Kang noted that Pepe experienced “numbness in hands and weakness” in his 2013 diagnosis. Id. at 561. Dr. Kang additionally observed on that same visit that Pepe could “rarely” handle, finger, and feel. Id. at 562. Thus, contrary to the Commissioner's contention (Def. Mem. at 13-15), Dr. Figueroa's opinion supports Dr. Kang's description of Pepe's difficulties with using his hands for simple tasks. Id. at 3230.
The Phalen's test is also used to check for carpal tunnel syndrome. Mercado v. Colvin, No. 15-CV-2283 (JCF), 2016 WL 3866587, at *2 n.9 (S.D.N.Y. July 13, 2016) (citing Test, Phalen's, DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1896 (32d ed. 2012)). The Tinel test is used as an indication of peripheral nerve fiber compression or regeneration as is most commonly associated with carpal tunnel syndrome. Tung Ho & Matthew E. Braza, Hoffmann Tinel Sign, NATIONAL CENTER FOR BIOTECHNOLOGY INFORMATION (Dec. 2, 2020), https://www.ncbi.nlm.nih.gov/books/NBK555934/.
Moreover, the ALJ failed to recognize that Dr. Kang's opinion is consistent with the deteriorating nature of Pepe's condition as illustrated by the record as a whole. Pepe's conditions were exacerbated between his examination by Dr. Johnston in 2012 and Dr. Figueroa in 2017. See id. at 447-51, 3222-34. For instance, Dr. Figueroa documented that Pepe started having symptoms of polyneuropathy in 2012. Id. at 3222. Pepe reported experiencing “pain, numbness, and [a] tingling sensation” intermittently, but at the time of Dr. Figueroa's examination in 2017, Pepe reported constant pain. Id. As another example, while being examined by Dr. Johnston in 2012, Pepe said that he could cook and clean independently and that he occasionally needed assistance with these activities. Id. at 449. However, five years later, Pepe informed Dr. Figueroa that he could perform some household activities but that “all the chores ha[d] to be with his wife due to his health.” Id. at 3222. In addition, during that same visit in 2017, Dr. Figueroa observed that Pepe had “moderate wasting of the interosseous muscles, but [only] between the third, fourth, and fifth fingers” and noted that Pepe “now ha[d] progression” in his symptoms, with the moderate wasting now detected “involving between the first, second, third, fourth, and fifth muscles bilaterally.” Id. at 3225. Dr. Kang similarly documented Pepe's decreasing ability to use his hands, id. at 562, which follows the general pattern demonstrated in the rest of the medical evidence. Nevertheless, the ALJ neglected to consider this corroboration and improperly assigned Dr. Kang's opinion “very little weight.” Id. at 1024.
Accordingly, by failing to properly analyze two of the five Burgess factors before giving Dr. Kang's opinions less-than-controlling weight, the ALJ did not “give good reasons” for his decision and thus violated the treating physician rule.
2. The Error Was Not Harmless
The ALJ's error in discounting Dr. Kang's opinions under the treating physician rule was not harmless. Specifically, Dr. Figueroa observed that Pepe is limited to occasionally handling, fingering, and feeling, where “occasionally” is defined as up to one-third of the time. AR at 3230. On the other hand, Dr. Kang documented that Pepe could rarely handle, finger, or feel, id. at 562, where “rarely” is defined as “approximately 1-5% of 8-hour workday (cumulative, not continuous).” Id. at 561. The ALJ, however, departed from these assessments and concluded that Pepe could perform jobs that require “frequent handling, fingering and feeling bilaterally, ” id. at 1025, where “frequently” means up to two-thirds of the time. Id. at 3230. Consequently, when constructing the hypothetical for the vocational expert at the hearing, the ALJ stated that the hypothetical person “can frequently handle, finger, and feel bilaterally.” Id. at 1079.
Following the ALJ's erroneous instructions, the vocational expert testified that the hypothetical person could work as an addresser, waxer, and final assembler, predicated on Pepe's full ability to frequently handle, finger, or feel. See Dictionary of Occupational Titles (“DICOT”), 209.587-010 Addresser, 1991 WL 671797 (frequently handling and fingering); 779.687-038 Waxer, 1991 WL 680755 (frequently handling); 713.687-018 Final Assembler, 1991 WL 679271 (frequently handling and fingering). However, the ALJ's hypothetical question did not “otherwise implicitly account[] for” Pepe's hand impairments. Cf. McIntyre v. Colvin, 758 F.3d 146, 148 (2d Cir. 2014) (finding that “the ALJ erred in posing an incomplete hypothetical question, ” but nevertheless concluding that it was harmless “because the hypothetical question posed to the vocational expert implicitly (and sufficiently) accounted for [claimant's] . . . limitations”). Then, based on the vocational expert's recommendation, the ALJ erroneously concluded that “there are jobs that exist in significant numbers in the national economy that [Pepe] can perform.” AR at 1026. As such, because the ALJ's erroneous hypothetical question “materially taint[ed] the ALJ's decision, ” Cherry v. Comm'r of Soc. Sec. Admin., 813 Fed.Appx. 658, 662 (2d Cir. 2020), a remand is necessary. See, e.g., Newell v. Saul, No. 19-CV-10831 (JLC), 2021 WL 608991, at *21 (S.D.N.Y. Feb. 17, 2021) (violation of treating physician rule not harmless because it would have changed vocational expert's testimony); Pines v. Comm'r of Soc. Sec., No. 13-CV-6850 (AJN) (FM), 2015 WL 872105, at *10 (S.D.N.Y. Mar. 2, 2015) (ALJ's analysis not harmless error because “the [vocational expert] essentially testified that if these opinions were adopted, [the claimant] would be unable to work” (quoting Archambault v. Colvin, No. 2:13-CV-292, 2014 WL 4723933, at *10 (D. Vt. Sept. 23, 2014))), adopted by 2015 WL 1381524 (Mar. 25, 2015).
III. CONCLUSION
For the foregoing reasons, Pepe's motion for judgment on the pleadings should be granted, the Commissioner's cross-motion should be denied, and the case should be remanded to the ALJ pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the ALJ should explicitly consider all of the Burgess factors in determining how much weight to assign to Dr. Kang's opinions.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres, United States Courthouse, 500 Pearl Street, New York, NY 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Torres.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).