Opinion
21-CV-1313 (VEC) (JW)
08-05-2022
NICOLE M. PROSA, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER
JENNIFER E. WILLIS, UNITED STATES MAGISTRATE JUDGE
To the Honorable Valerie E. Caproni, United States District Judge:
Plaintiff Nicole M. Prosa brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (the “Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”). Both Parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons stated below, Plaintiff's motion is GRANTED and the Commissioner's motion is DENIED.
BACKGROUND
A. Procedural History
On August 24, 2018, Plaintiff submitted an application for DIB asserting disability beginning January 1, 2015. See Social Security Administration (“SSA”) Administrative Record (Dkt. No. 16) (hereinafter “R. ”) at 64. Plaintiff alleged a left knee injury, right knee pain, and right and left hip pain as conditions limiting her ability to work. R. at 192. The claim was initially denied on December 12, 2018. R. at 77. On January 24, 2019, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), R. at 90, which took place on November 25,2019 in front of ALJ Sharda Singh. R. at 30.
In a written decision dated December 27, 2019, the ALJ found that Plaintiff was not disabled as defined under the Act. R. at 24. Plaintiff subsequently requested Appeals Council Review. R. at 5. The Appeals Council denied that request on December 11, 2020, rendering the ALJ's decision final. Id. Plaintiff brought this action on February 13, 2021, contending that the ALJ's residual functional capacity (“RFC”) determination was unsupported by substantial evidence because the ALJ did not consider certain opinion evidence. Dkt. No. 20 (“Pl. Mem.”) at 10-11.
B. Personal Background
Plaintiff was born on July 16, 1986. Her education continued through two years of college. R. at 50. In April 2014, Plaintiff began working as a train operator for the Metropolitan Transit Authority (“MTA”). Id. On January 16, 2015, she sustained an injury while working. R. at 35. When going to stand from her seat, a broken bar fell from beneath her foot. R. at 36. Plaintiff lost her balance and twisted her left knee, resulting in injury to her knee cap. Id. Plaintiff subsequently had two surgeries stemming from that injury. Id.
C. Plaintiff's Relevant Medical History
Plaintiff's arguments center on the ALJ's evaluation of her RFC. In particular, Plaintiff contends that “the ALJ failed to properly evaluate the opinion evidence provided by Dr. Hearns,” Pl. Mem. at 11, and that the ALJ's determination that PT Gumtang's opinion was “generally persuasive” should have led to a disability finding. Pl. Mem. at 15.
Several medical opinions were given over the course of Plaintiff's treatment history. These included opinions from Dr. Daniel Tomlinson, Dr. Strauss, Dr. Hudak, Dr. Michael Hearns, Dr. Glassman, Dr. Rita Figueroa, Dr. Chinweike Izeogu, Dr. Gilbert Jenouri, Dr. M. Angelotti, Dr, Louis Rose, and Physical Therapist Joanne Gumtang. See generally, Pl. Mem. As Plaintiff's contentions are limited to the ALJ's treatment of Dr. Hearns's opinion, as well as that of PT Gumtang, the Court's discussion of Plaintiff's medical history will focus on those two evaluations.
i. Dr. Michael Hearns, M.D.
Plaintiff first saw Dr. Hearns on June 10, 2016. At that time, he stated her restrictions were “[l]imited lifting, pushing, pulling, carrying, sitting, standing, walking, climbing, kneeling, repetitive motion.” R. at 754. On August 5, 2016, Plaintiff again saw Dr. Hearns. At that time, he noted her restrictions as “[n]o lifting, pushing, pulling, carrying anything more than 10 pounds. R. at 748. Plaintiff continued to see Dr. Hearns several times over the next year. R. at 822 (Oct. 15, 2016), 795 (Feb. 3, 2017). Plaintiff again saw Dr. Hearns on August 10, 2017. At that time she reported a “50% improvement since the surgery in a general way” but also “new onset right knee pain for the last 3 months, right hip pain for the last 3 months, and lower back pain for the last one month.” R. at 499. At that time, Dr. Hearns updated his restrictions for Plaintiff to “[l]imited lifting, pushing, pulling, carrying sitting, standing, walking, climbing, kneeling, repetitive motion.” R. at 500. Plaintiff saw Dr. Hearns again in December 2017, as well as February 2018. R. at 838; 795. This appears to be Plaintiff's last visit to Dr. Hearns.
ii. Physical Therapist (“PT”) Joanna Gumtang
Upon referral from Dr. Hearns, on June 8, 2017 Plaintiff met with Joanna Gumtang, a physical therapist. PT Gumtang opined that Plaintiff “demonstrated the ability to perform within the LIGHT Physical Demand Category... Ms. Prosa is presently able to work part time for up to 7 hours and 7 minutes hours per day while taking into account her need to alternate sitting and standing.” R. at 700. PT Gumtang also found that Plaintiff could carry 7 pounds, push 27 horizontal force pounds, and pull 27 horizontal push pounds. Id.
D. The Hearing
On November 25, 2019, Plaintiff appeared with her attorney, William Morrison, for a telephonic hearing before ALJ Sharda Singh. Linda Stein, the vocational expert (“VE”), was also present. R. at 30.
iii. Plaintiff's Testimony
Plaintiff was first examined by her attorney. Mr. Morrison began by walking Plaintiff through a description of the accident that caused her injury, and the associated medical care she received in its aftermath. R. at 35-38. Mr. Morrison then transitioned to Plaintiff's limitations during the disability period, first establishing that Plaintiff has trouble with both sitting and standing, R. at 38, and then discussing Plaintiff's difficulties with household tasks including her difficulties with lifting items. R. at 39. Plaintiff then testified that she was currently working at a call center for a healthcare organization and noted the difficulties she has had with pain in that job. R. at 40-41. In describing the effect her disability period had on her, Plaintiff stated the following: “I was starting this new career and it was bringing in money and my boyfriend and I had moved in together and all of these sad things happened and bam, I get injured, I'm laid up, you know, the - the first surgery comes along, then I have to ... have a second major surgery, physical therapy, the pain that I was in...” R. at 41-42.
Plaintiff also testified that she lived with her now husband and her son, who was born in the middle of her disability period. R. at 43. She stated that has difficulty lifting him and carrying him around now that he has gotten bigger. Id. Plaintiff's mother assists with childcare and was present at Plaintiff's house almost every day. R. at 43-44. Plaintiff had a housekeeper for some time, but after worker's compensation ended she could no longer afford her services. R. at 44-45.
Subsequently, the ALJ examined Plaintiff. The ALJ began by asking Plaintiff about what personal needs she had difficulty with, to which Plaintiff testified that showering was very difficult after her surgeries and she required assistance. R. 4546. The ALJ then asked Plaintiff about her pregnancy, and there was some discussion about whether her conditions caused back pain during that period. R. at 46. For some time, Plaintiff was not allowed to drive, following her surgeries R. at 47. As of the hearing, Plaintiff could drive for up to 20 minutes. R. at 48. Plaintiff testified that she could sit for about an hour if needed. R. at 49. The ALJ then reviewed Plaintiff's personal and work history. R. 50-52.
iv. VE Testimony
VE Stein began by classifying Plaintiff's prior work: “So, the position at the hospital I classified as medical secretary, the DOT for that is 201.362-014, it has an SVP of six, exertionally defined as sedentary, and the position at the day care center I classified as child dash day dash care center worker, the DOT for that is 359.677018, it has an SVP of 4, exertionally defined as light.” R. at 56-57.
The ALJ then provided a hypothetical, asking if someone in the same position as Plaintiff who was limited to a “sedentary exertion level, can never climb ladders, ropes, or scaffolds, occasionally climbs ramps, stairs, balance, stop, knee, crouch, or crawl...[i]s to avoid hazards such as moving machinery.” R. at 57. The VE said that “the position of medical secretary could still be performed in that hypothetical.” Id. The ALJ then adjusted that hypothetical to add a “sit/stand option,” defined as “after one hour having to stand up for one to two minutes and then sit back down, not being off-task.” R. at 58. The VE confirmed that a medical secretary role could still be performed under those circumstances. Id.
The ALJ then set forth a second hypothetical, adding limited “understanding, remembering, and carrying out simple, routine, repetitive, non-complex tasks.” Id. Here, the VE found that that would preclude Plaintiff's prior work. Id. The VE then listed other jobs in the national economy that could still be performed under that hypothetical. R. at 58-59.
The ALJ's third hypothetical added the need “to take unscheduled breaks outside of the normal eight-hour break resulting in an individual being off-task for more than 15 percent of the work day.” R. at 59. The VE concluded that that would “preclude full-time gainful employment.” Id.
Plaintiff's attorney then asked the VE one question; whether only being able to sit for a total of five hours in an eight-hour workday and stand and walk for up to two hours in an eight-hour workday” would preclude an individual from working in the national economy. Id. The VE stated that “falling short of the eight hours, that's going to preclude full-time gainful employment.” Id.
E. The ALJ's Decision
The ALJ denied Plaintiff's application for DIB on December 27, 2019. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity from the period January 1, 2015, to February 4, 2019. R. at 14-15. The ALJ did not determine whether Plaintiff's receipt of worker's compensation benefits constituted substantial gainful activity. R. at 15. At step two, the ALJ found that Plaintiff had the following severe impairments: left and right knee derangement and obesity. R. at 15. As part of this finding, the ALJ found that there were no severe mental impairments. R. at 6.
At step three, the ALJ found that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity” of any of the impairments listed in the Listings. R. at 16-17. Specifically, the ALJ considered Listings 1.02 (Major dysfunction of a joint) and 1.03 (Reconstructive surgery or surgical arthrodesis of a major weight bearing joint). R. at 17. The ALJ found that Plaintiff had not shown an “inability to ambulate effectively,” therefore not meeting the requirements of the Listings. Id. Finally, the ALJ did not find that Plaintiff's obesity enhanced the severity of any impairments to a level that would meet a Listing. Id.
At step four, the ALJ considered Plaintiff's RFC. The ALJ found that Plaintiff “has the [RFC] to perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant can never climb ladders, ropes, or scaffolds, balance, stop, kneel, crouch, or crawl. She can occasionally operate foot controls with the left lower extremity. She should avoid hazards such as moving machinery. She requires a sit/stand option, defined as that after one hour of sitting she would be able to stand for one to two minutes before sitting down, not being off task.” R. at 17. As part of this determination, the ALJ reviewed Plaintiff's medical history and various doctors' evaluations. R. at 17-20.
Ultimately, the ALJ found that “claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” R. at 21. Specifically, the ALJ pointed to Plaintiff's ability to walk without assistive devices post-surgery; that there was no clear link between the impairment to her right knee and the injury to her left knee; and that she had reported she was able to “cook, do laundry, and go shopping for essentials.” Id.
In coming to this opinion, the ALJ relied on medical evaluations from several doctors. The ALJ found that with respect to Dr. Hearns that his opinions were “not entirely consistent with the records from the claimant's other medical providers and examining sources during the same period, and are thus found less persuasive.” R. at 23. In contrast, the ALJ found the opinion of Plaintiff's physical therapist “generally persuasive, as it [was] supported by the comprehensive functional capacity evaluation performed at the time this opinion was rendered, and [was] consistent with the totality of the medical evidence and physical therapy treatment notes..” R. at 23.
In conclusion, the ALJ found that Plaintiff was capable of performing past relevant work as a Medical Secretary, and that this would not be precluded by Plaintiff's RFC. R. at 23-24.
LEGAL STANDARD
A. Scope of Judicial Review under 42 U.S.C. § 405(g)
“After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
“In reviewing a final decision of the SSA, this Court 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) (citation and internal quotation marks omitted). “Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam) (citation and internal quotation marks omitted). Substantial evidence is “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citations omitted). “Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.” Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (internal citations omitted).
B. Standard Governing Evaluation of Disability Claims by the SSA.
To qualify for disability benefits, an individual must be unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The SSA's regulations establish a five-step process for determining a disability claim. See 20 C.F.R. § 416.920(a)(4).
If at any step a finding of disability or nondisability can be made, the SSA will not review the claim further. At the first step, the agency will find nondisability unless the claimant shows that he is not working at a “substantial gainful activity.” §§ 404.1520(b), 416.920(b). At step two, the [SSA] will find nondisability unless the claimant shows that he has a “severe impairment.” Defined as “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” §§ 404.1520(c), 416.920(c). At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. §§ 404.1520(d), 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the [SSA] assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the [SSA]
to consider so-called “vocational factors” (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy.Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003).
“The applicant bears the burden of proof in the first four steps of the sequential inquiry; the Commissioner bears the burden in the last.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). “Because a hearing on disability benefits is a nonadversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.” Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999).
DISCUSSION
Plaintiff raises one fault with the ALJ's finding; namely, that the “RFC determination is unsupported by substantial evidence as he failed to properly evaluate the opinion evidence of record in accordance with the prevailing rules and regulations.” Pl. Mem. at 10. Specifically, Plaintiff argues that “the ALJ failed to properly evaluate the opinion evidence provided by Dr. Hearns pursuant to the regulations.” Id. at 11. Plaintiff argues that the ALJ's explanation for why Dr. Hearns's opinion was not persuasive was limited to a single statement: Dr Hearns's opinion was “not entirely consistent with the records from the claimant's other medical providers and examining sources during the same period.” R. at 23. Plaintiff maintains that this is “boilerplate and conclusory” and does not offer any analysis as to why Dr. Hearns's opinion was discounted. Pl. Mem. at 13.
Defendant's memorandum notes that Dr. Hearns only has one statement in one opinion that differed from what other doctors noted. At the August 5, 2016 evaluation, Dr. Hearns stated that Plaintiff could not carry more than 10 pounds; other than that, at every other assessment, Dr. Hearns also noted “limited lifting pushing, pulling, carrying, sitting, standing, walking, climbing, kneeling.” Dkt. No. 29 (“Opp.”) at 22.
As noted by both Defendant and the ALJ, the other medical professionals also noted limitations on lifting and carrying. Opp. at 22; R. at 21-23. Thus, regardless of whether the ALJ properly credited Dr. Hearns's opinion, Dr. Hearns's conclusions were in line with the evaluations provided by the other medical professionals. Whether or not the ALJ should have provided more color on how they reached their conclusion on the persuasiveness of Dr. Hearns's opinion is, at most, harmless error. See Franco v. Saul, No. 16-cv-5695 (LMS), 2020 WL 4284157, at *17 (S.D.N.Y. July 27, 2020) (finding that where an ALJ was not persuaded by a doctor's opinion because it was inconsistent with the totality of the medical evidence, remand was not warranted as asking the ALJ to assign a different weight to the opinion would not change the ultimate determination).
However, Plaintiff also points out that the ALJ did find PT Gumtang's opinion “generally persuasive” and that that opinion should have led to a disability finding. Pl. Mem. at 15. VE Stein testified that working for a full eight hours is required to qualify for any work in the national economy. R. at 59. PT Gumtang found that Plaintiff could work for up to seven hours and thirteen minutes. R. at 277. The ALJ acknowledged this aspect of PT Gumtang's opinion, noting that Plaintiff “would be able to work part time, up to 7 hours per day,” and that Plaintiff “could sit for five hours and stand for two hours.” R. at 23. The ALJ only cited one other medical opinion contradicting PT Gumtang's note on this point; Dr. Angelotti opined that Plaintiff “was limited to two hours of standing/walking and six hours of sitting in an 8-hour workday.” R. at 21-22. However, the ALJ found this opinion only “partially persuasive.” Id. In light of the ALJ's finding that PT Gumtang's assessment was more persuasive, the assessment that Plaintiff could not work 8 hours a day should have governed that aspect of Plaintiff's RFC as determined by the ALJ.
Therefore, in light of VE Stein's testimony that “falling short of the eight hours, that's going to preclude full-time gainful employment,” and PT Gumtang's opinion that Plaintiff could at most sit for 5 hours and 5 minutes and stand for 2 hours and 8 minutes (totaling 7 hours and 13 minutes), the Government has not met its burden of demonstrating that there is a job in the national economy that, considering Plaintiff's RFC, Plaintiff could perform. See Talavera, 697 F.3d at 151. The ALJ's positive discussion of PT Gumtang's opinion, including noting twice the temporal limits on Plaintiff's ability to sit or stand, further supports a lack of evidence that Plaintiff could engage in full-time gainful employment. Thus, the ALJ's conclusion is not supported by substantial evidence, warranting remand.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff's motion (Dkt. No. 19) be GRANTED, and the Commissioner's motion (Dkt. No. 28) be DENIED.
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 days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections shall be filed with the Clerk of Court and on ECF. Any requests for an extension of time for filing objections must be directed to Judge Caproni. Failure to file objections within fourteen days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).
SO ORDERED.