Opinion
20 Civ. 4369 (KMK) (AEK)
08-08-2022
MARISEL RIOS, Plaintiff, v. KILOLO KIJAKAZI,[1] ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
HONORABLE KENNETH M. KARAS, U.S.D.J.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE UNITED STATES MAGISTRATE JUDGE
Plaintiff Marisel Rios brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Kilolo Kijakazi, Acting Commissioner of Social Security (the “Commissioner”), which denied her application for disability insurance benefits (“DIB”). ECF No. 1. Plaintiff has moved for remand and/or judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, ECF Nos. 26-27, and the Commissioner has cross-moved for judgment on the pleadings, ECF No. 28. For the reasons that follow, I respectfully recommend that Plaintiff's motion (ECF Nos. 26-27) be DENIED, the Commissioner's motion (ECF No. 28) be GRANTED, and that judgment be entered in favor of the Commissioner.
BACKGROUND
I. Procedural Background
On May 26, 2016, Plaintiff filed an application for DIB, alleging July 31, 2014, as the onset date of her disability. Administrative Record (“AR”) 65. Plaintiff claimed she was disabled due to aortic replacement, mechanical valve, eight or more strokes, possible epileptic seizures, chronic hypertension, depression, fatigue, and memory loss. AR 67, 195. After the Social Security Administration (the “SSA”) denied her claim, AR 65, 83-87, Plaintiff requested a hearing before an administrative law judge (“ALJ”), AR 95-96. An administrative hearing was held on October 10, 2018, before ALJ David Suna. AR 28-64. On February 20, 2019, ALJ Suna issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act (the “Act”) from the alleged onset date of July 31, 2014 through September 30, 2016, Plaintiff's date last insured. AR 7-21. Plaintiff subsequently filed a request for review of that decision with the SSA's Appeals Council, which was denied on April 2, 2020. AR 1-4, 172-73. That made the ALJ's February 20, 2019, decision the final decision of the Commissioner. The instant lawsuit, seeking judicial review of the ALJ's decision, was filed on June 8, 2020. ECF No. 1.
Citations to “AR” refer to the certified copy of the administrative record filed by the Commissioner. ECF No. 18.
The “date last insured” is the last date a claimant is eligible to receive DIB, and the date is calculated based on the claimant's work history. Specifically, “[t]o qualify for Social Security [DIB], a claimant generally must, inter alia, have earned at least twenty ‘quarters of coverage' over the ten-year period prior to the onset of disability.” Feliciano v. Colvin, No. 12-cv-6202 (PGG), 2015 WL 1514507, at *1 n.1 (S.D.N.Y. Mar. 31, 2015). “[W]hen a claimant does not show that a currently existing condition rendered her disabled prior to her date last insured, benefits must be denied.” Mauro v. Berryhill, 270 F.Supp.3d 754, 762 (S.D.N.Y. 2017). Here, Plaintiff does not dispute that her date last insured for purposes of her claim for DIB was September 30, 2016. Accordingly, Plaintiff was required to establish that her disability arose on or before September 30, 2016, to qualify for DIB.
II. Medical, Vocational, and Testimonial Evidence
The Commissioner has provided a summary of the medical, vocational, and testimonial evidence contained in the administrative record. See ECF No. 29 (“Def.'s Mem.”) at 2-10. Based on an independent and thorough examination of the record, the Court finds that this summary of the evidence is largely comprehensive and accurate. Accordingly, the Court adopts this summary and discusses the evidence in the record in more detail to the extent necessary to a determination of the issues raised in this case. See, e.g., Banks v. Comm'r of Soc. Sec., No. 19-cv-929 (AJN) (SDA), 2020 WL 2768800, at *2 (S.D.N.Y. Jan. 16, 2020), adopted by 2020 WL 2765686 (S.D.N.Y. May 27, 2020).
APPLICABLE LEGAL PRINCIPLES
I. Standard of Review
The scope of review in an appeal from a Social Security disability determination involves two levels of inquiry. First, the court must review the Commissioner's decision to determine whether the Commissioner applied the correct legal standards when determining that the plaintiff was not disabled. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). “‘Failure to apply the correct legal standards is grounds for reversal.'” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
Second, the court must decide whether the Commissioner's decision was supported by substantial evidence. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 106 (quotation marks omitted). When determining whether substantial evidence supports the Commissioner's decision, it is important that the court “carefully consider[] the whole record, examining evidence from both sides.” Tejada, 167 F.3dat 774 . “It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). If the “decision rests on adequate findings supported by evidence having rational probative force, [the court] will not substitute [its own] judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
II. Determining Disability
The Act defines “disability” 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 twelve months.” 42 U.S.C. § 423(d)(1)(A). An individual is disabled under the Act if he or she suffers from an impairment which is “of such severity that he [or she] is not only unable to do his [or her] previous work but cannot . . . engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). “‘[W]ork which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” Id.
Regulations issued pursuant to the Act set forth a five-step process that the Commissioner must follow in determining whether a particular claimant is disabled. See 20 C.F.R. § 404.1520(a)(4). The Commissioner first considers whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), (b). If the claimant is engaged in substantial gainful activity, then the Commissioner will find that the claimant is not disabled; if the claimant is not engaged in substantial gainful activity, the Commissioner proceeds to the second step, at which the Commissioner considers the medical severity of the claimant's impairments. 20 C.F.R. § 404.1520(a)(4)(ii). A severe impairment is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant suffers from any severe impairment, the Commissioner at step three must decide if the impairment meets or equals a listed impairment; listed impairments are presumed severe enough to render an individual disabled, and the criteria for each listing are found in Appendix 1 to Part 404, Subpart P of the SSA regulations. 20 C.F.R § 404.1520(a)(4)(iii), (d).
If the claimant's impairments do not satisfy the criteria of a listed impairment at step three, the Commissioner must then determine the claimant's residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). A claimant's RFC represents “the most [he or she] can still do despite [his or her] limitations.” 20 C.F.R. § 404.1545(a)(1). After determining the claimant's RFC, the Commissioner proceeds to the fourth step to determine whether the claimant can perform his or her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv), (e)-(f). If it is found that the claimant cannot perform his or her past relevant work, the Commissioner proceeds to step five to consider the claimant's RFC, age, education, and work experience to determine whether he or she can adjust to other work. 20 C.F.R. § 404.1520(a)(4)(v), (g). To support a finding that the claimant is disabled, there must be no other work existing in significant numbers in the national economy that the claimant, in light of his or her RFC and vocational factors, is capable of performing. 20 C.F.R. § 404.1560(c).
The claimant bears the burden of proof on the first four steps of this analysis. DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998). If the ALJ concludes at an early step that the claimant is not disabled, he or she need not proceed with the remaining steps. Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000). If the fifth step is necessary, the burden shifts to the Commissioner to show that the claimant is capable of performing other work. DeChirico, 134 F.3d at 1180.
DISCUSSION
Plaintiff seeks to reverse the Commissioner's decision and have the matter remanded to the SSA solely for the calculation of benefits or, alternatively, for further administrative proceedings. She contests the ALJ's decision on four grounds, asserting that: (1) the ALJ erred at step two of his analysis in finding that Plaintiff's mental impairment was not severe; (2) the ALJ's RFC determination was not supported by substantial evidence, and the ALJ erroneously relied on Plaintiff's activities of daily living in finding that she was not disabled; (3) the hypothetical that the ALJ posed to the vocational expert as part of his step five analysis was not supported by substantial evidence; and (4) the Appeals Council erred in failing to consider additional medical evidence that showed that Plaintiff could not perform any of the jobs discussed by the vocational expert during Plaintiff's administrative hearing. See ECF No. 27 (“Pl.'s Mem.”). The Commissioner maintains that the ALJ's decision is supported by substantial evidence. See Def.'s Mem. at 11-25.
As discussed below, the Court finds that the Commissioner's decision was legally correct and supported by substantial evidence, and therefore respectfully recommends that Plaintiff's motion be denied, the Commissioner's motion be granted, and that judgment be entered in favor of the Commissioner.
I. The ALJ's Decision
ALJ Suna applied the five-step sequential analysis described above and issued a decision finding that Plaintiff was not disabled from the alleged onset date of July 31, 2014, through the date last insured of September 30, 2016. AR 10-21. First, the ALJ found that Plaintiff had not engaged in substantial gainful activity during the period between July 31, 2014 and September 30, 2016. AR 12. Second, the ALJ determined that Plaintiff had the severe impairments of obesity, hypertension, a history of aortic aneurysm, and cerebrovascular disease, and the non-severe impairment of a depressive disorder. Id. Third, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 15.
According to the ALJ, Plaintiff retained the RFC to perform light work, as defined in 20 C.F.R. § 404.1567(b), with the following limitations: “no more than frequently reach in all directions, handle, finger, push, or pull bilaterally; no more than occasional operation of foot controls bilaterally; no more than occasional climbing of ramps and stairs; no climbing of ladders, ropes, or scaffolds; no more than occasional balance, stoop, kneel, or crouch; never crawl; and no exposure to unprotected heights, moving mechanical parts or operating a motor vehicle.” AR 15.
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b).
In determining Plaintiff's RFC, the ALJ evaluated Plaintiff's symptoms by applying the two-step framework described in 20 C.F.R. § 404.1529 and SSR 16-3p, as well as by considering the opinion evidence in the record in accordance with 20 C.F.R. § 404.1527. Id. The ALJ provided an extensive summary of the evidence in the record, including Plaintiff's statements about her symptoms and activities of daily living and the medical records. AR 15-19. The ALJ found that Plaintiff's “statements that she is unable to work is [sic] not supported by a record showing that after she has had two aortic replacements, two strokes and at least two possible transichemic [sic] attacks, her cardiac and neurological examinations have remained normal and/or stable in these past few years.” AR 18.
The ALJ specified that the first step in this process is to determine “whether there is an underlying medically determinable physical or mental impairment(s)i.e., an impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques-that could reasonably be expected to produce the claimant's pain or other symptoms.” AR 15. The second step in the process, “once an underlying physical or mental impairment(s) that could reasonably be expected to produce the claimant's pain or other symptoms has been shown,” is for the ALJ to “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functional limitations.” Id. “[W]henever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the [ALJ] must consider other evidence in the record to determine if the claimant's symptoms limit the ability to do work-related activities.” Id.
ALJ Suna considered the medical opinion evidence, giving “significant weight” to the opinion of consultative examiner Dr. Carol McLean-Long that Plaintiff had “mild to moderate limitations in her ability to walk; toe and heel walk; squat; maneuver her cervical spine; reach up, out and backwards with her bilateral extremities; and to flex and extend her lumbar spine, hips and knees, bilaterally.” Id. The ALJ noted that the “finding that [Plaintiff] has up to moderate physical limitations is consistent with a record showing that her cardiological, neurological and obesity impairments limit her to a range of light exertion.” AR 18-19. At the same time, the ALJ gave “less weight” to Dr. McLean-Long's “same day somewhat contradictory statement” that Plaintiff “was limited from activities requiring mild or greater exertion secondary to her cardiac condition,” because “[w]hile [Plaintiff] has a history of significant cardiac episodes in the past, in the past few years her cardiovascular examinations have been normal, including Dr. McLean-Long's own finding of a normal heart examination.” AR 19. The ALJ also gave “great weight” to the opinion of neurologist Dr. Steven Goldstein that Plaintiff “can perform work at the light level”; Dr. Goldstein's opinion was based on his review of “the entire medical record,” and the ALJ found this opinion to be “supported by a record showing that even though [Plaintiff] has a history of neurological and cardiological impairments, her cardiac and neurological impairments have been largely stable or improving since February 2015.” Id.
At the fourth step, citing the hearing testimony of the vocational expert, the ALJ found that Plaintiff was unable to perform her past relevant work as a preventive maintenance coordinator, because it was “too physically demanding” and required “greater physical exertion than [Plaintiff] is capable of performing.” Id.
At the fifth step, the ALJ found that if Plaintiff had the RFC to perform the full range of light work through the date last insured, “Medical-Vocational Rule 202.21 would direct a finding of ‘not disabled.'” AR 20. But the ALJ concluded that Plaintiff's “ability to perform all or substantially all of the requirements of this level of work was impeded by additional limitations.” Id. Thus, “[t]o determine the extent to which these limitations erode the unskilled light occupational base, through the date last insured, the [ALJ] asked the vocational expert whether jobs existed in the national economy for an individual with [Plaintiff's] age, education, work experience, and [RFC].” Id. The vocational expert determined that Plaintiff could perform the light, unskilled jobs of (1) office cleaner (600,000 jobs nationally); (2) parking lot attendant (75,000 jobs nationally); and (3) hand packager (190,000 jobs nationally). Id. In addition, the vocational expert determined that Plaintiff could perform the sedentary, unskilled jobs of (1) telephone order clerk (90,000 jobs nationally); (2) document preparer (2,000 jobs nationally); (3) surveillance system monitor (5,000 jobs nationally); (4) assembler (80,000 jobs nationally); and (5) inspector (140,000 jobs nationally). AR 20-21. Relying upon the vocational expert's testimony, and considering Plaintiff's age, education, work experience, and RFC, the ALJ found that Plaintiff “was capable of making a successful adjustment to other work that existed in significant numbers in the national economy.” AR 21. For all of these reasons, the ALJ determined that Plaintiff was not disabled from the alleged onset date, July 31, 2014, through the date last insured, September 30, 2016. Id.
II. Step Two Determination
Contrary to Plaintiff's argument, see Pl.'s Mem. at 4-5, the ALJ's determination at step two of the sequential analysis that Plaintiff's depressive disorder was a non-severe impairment is supported by substantial evidence.
Under SSA regulations, an impairment is not severe “if it does not significantly limit [a person's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1522(a); see SSR 85-28 (“Titles II and XVI: Medical Impairments That are Not Severe”), 1985 WL 56856, at *3 (S.S.A. 1985). “Basic work activities” are defined as “the abilities and aptitudes necessary to do most jobs” and include “[u]nderstanding, carrying out, and remembering simple instructions”; “[u]se of judgment”; “[r]esponding appropriately to supervision, co-workers and usual work situations”; and “[d]ealing with changes in a routine work setting.” 20 C.F.R. § 404.1522(b); see SSR 85-28, 1985 WL 56856, at *3.
In reaching his conclusion regarding the severity of Plaintiff's depressive disorder, ALJ Suna gave “little weight” to psychological consultative examiner Dr. Fredelyn Engelberg's July 15, 2016 opinion that Plaintiff was “mildly to moderately impaired in her ability to appropriately deal with stress.” AR 14. The ALJ acknowledged that Plaintiff reported at a July 15, 2016 examination (with a different provider) that she had been depressed since her first surgery, AR 1262, and noted that the medical records do indicate that Plaintiff “experiences mild stress secondary to her physical impairments,” AR 14. But the ALJ accurately found that Dr. Engelberg's assessment of impairment was not supported more broadly by Plaintiff's medical records, because those records demonstrated that Plaintiff “never reported any ongoing stress problems during any of her physical examinations.” Id. Moreover, as the ALJ explained, the records further demonstrated that Plaintiff “had consistently normal mini-mental status examinations. Indeed, she often denied experiencing any psychological symptoms when undergoing treatment for her physical conditions.” Id.; see AR 13 (citing Montefiore Medical Center records showing “consistently normal mini-mental status examination[s],” in particular, examinations on March 9, 2015 (AR 374, 377), June 2, 2015 (AR 865), May 22, 2015 (AR 431, 438, 456), March 3, 2016 (AR 749), and October 28, 2017 (AR 1368)). While the ALJ noted that the Montefiore Medical Center records for Plaintiff's appointment on October 2, 2014, reflect that she reported anxiety, see AR 593, 598 (reporting “anxiety, depression”), the exam notes for that appointment also state that Plaintiff had “[a]ppropriate mood and affect,” and that there were “[n]o abnormal behaviors during exam,” AR 594, 599. Even in one circumstance where a provider temporarily assessed Plaintiff with a dysthymic (depressive) disorder, see AR 1249-50 (assessment made at 2/25/2016 appointment with cardiologist), subsequent appointments with that same provider a short time later indicated lessening symptoms, and the provider ultimately removed the assessment of dysthymic disorder altogether. AR 1251-52 (at 5/16/2016 appointment with her cardiologist, Plaintiff was assessed with dysthymic disorder, but she had “[s]topped Zoloft” and was “[f]eeling well”; the treatment record notes “no high stress level. no depression. no sleep disturbances. no suicidal ideation. no eating disorder. no mental or physical abuse. no anxiety.”), 1253-54 (by 6/13/2016 appointment with her cardiologist, Plaintiff was no longer assessed with dysthymic disorder).
Although the ALJ's decision refers to a “May 2, 2015 visit,” this appears to be an error-the relevant language referenced in this portion of the decision regarding Plaintiff's mental health condition is taken from a consultation that took place on June 2, 2015. AR 86467. The consultation does not appear to have occurred at Montefiore Medical Center; rather it was with a doctor from a practice known as Doctors On Call. See AR 867.
This record is not from treatment at Montefiore Medical Center, but rather from an inpatient examination at Lincoln Medical and Mental Health Center; the ALJ's decision accurately reflects that Plaintiff denied having a psychiatric history during this examination.
Plaintiff also denied having anxiety and depression at a June 5, 2016 examination at Lincoln Medical and Mental Health Center, AR 1109, and earlier that same day, a psychiatric assessment by the Emergency Department found that Plaintiff's affect was appropriate, that she responded appropriately, was cooperative, had normal speech, maintained good eye contact, was alert and oriented, and did not have any suicidal ideation, AR 1116-17. In addition, a separate psychiatric assessment at the Lincoln Medical and Mental Health Center Emergency Department on February 24, 2016 found that Plaintiff's affect was appropriate, that she responded appropriately, was cooperative, had normal speech, maintained good eye contact, was alert and oriented, and did not have any suicidal ideation. AR 1140-41. Further, at a June 6, 2016 examination at Lincoln Medical and Mental Health Center, Plaintiff denied having a psychiatric history. AR 1063.
In contrast, the ALJ gave “great weight” to the opinion of State agency psychologist Dr. D. Brown that Plaintiff had “no limitations in social functioning or in maintaining concentration[,] persistence[,] and pace,” because that conclusion was “supported by records showing that [Plaintiff] ha[d] undergone no mental health treatment nor ha[d] she ever been psychiatrically hospitalized.” AR 14; see 20 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent a medical opinion is with the record as a whole, the more weight we will give to that medical opinion.”). He also found that Dr. Brown's opinion was supported by “[r]ecords showing that [Plaintiff's] mini-mental status examinations ha[d] remained consistently normal.” AR 14. The ALJ explained that Dr. Brown's “same day opinion that [Plaintiff] had a non-severe mental impairment is getting great weight for the same reasons.” Id. Finally, for these same reasons, the ALJ gave “great weight” to the parts of Dr. Engelberg's opinion finding that Plaintiff “could perform simple and complex tasks; learn new tasks; make appropriate decisions; relate adequately with others; and maintain attention and concentration,” as well as Dr. Engelberg's “same day opinion that [Plaintiff's] psychiatric problems [did] not significantly interfere with her ability to function on a daily basis.” Id.
An ALJ may “choose between properly submitted medical opinions,” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998), and may accept some parts and reject other parts of a medical opinion, Veino, 312 F.3d at 588-89. “Genuine conflicts in the medical evidence are for the Commissioner to resolve.” Id. at 588; see Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (“In our review, we defer to the Commissioner's resolution of conflicting evidence.”). The ALJ was therefore entitled to weigh the opinion evidence as he did, and his treatment of this evidence was proper.
In addition, in making his step two determination regarding Plaintiff's mental impairment, the ALJ considered the four areas of mental functioning known as the “paragraph B” criteria, 20 C.F.R. Part 404, Subpt. P, App. 1 § 12.00(A)(2)(b), and found that Plaintiff had only a mild limitation in the functional area of “adapting or managing oneself” and no limitations in the other three functional areas of “understanding, remembering, or applying information”; “interacting with others”; and “concentrating, persisting, or maintaining pace.” AR 13-14. These findings were supported by substantial evidence in the record.
The ALJ found no limitation in understanding, remembering or applying information based on Dr. Engelberg's finding that Plaintiff had intact recent and remote memory and average intellectual functioning, and Plaintiff's reporting that she “like[d] to read a lot,” which “require[d] the ability to understand what she [was] reading.” AR 13; see AR 1259-60. He found no limitation in interacting with others based on Plaintiff's statements to Dr. Engelberg that she had a friend, took public transportation, had good family relationships, spent her days playing with her grandson, and lived with her children, her grandson, and her boyfriend. AR 13; see AR 1257, 1260. The ALJ found no limitation in concentrating, persisting, or maintaining pace since Plaintiff's attention and concentration both “tested as normal” during Dr. Engelberg's examination, and she reported that she liked to read a lot, which reflected an ability “to sustain the attention and concentration needed to complete reading a book, magazine or whatever other reading material she was using.” AR 13-14; see AR 1259-60. Finally, the ALJ found that Plaintiff had a mild limitation in adapting or managing herself because she experienced “mild stress secondary to her medical condition,” citing Dr. Engelberg's report. AR 14; see AR 1258 (Plaintiff reported to Dr. Engelberg her “worry that her medical problems could start again”). In concluding that this was only a mild limitation, the ALJ cited Plaintiff's report of “no high stress level” at her July 18, 2018 appointment with her cardiologist. AR 14; see AR 1273; see also AR 1252 (at May 16, 2016 appointment Plaintiff reported “no high stress level”).
On balance, the ALJ determined that “[d]ue to the normal nature of [Plaintiff's] mental status examinations and her depressive disorder being assessed as stable, [Plaintiff's] medically determinable mental impairment does not cause more than minimal limitation in [Plaintiff's] ability to perform basic mental work activities.” AR 13. As detailed above, the ALJ's determination that Plaintiff's mental impairment was non-severe was supported by the entirety of the medical record here, including Plaintiff's lack of treatment for any mental impairment. See DePasquale v. Comm'r of Soc. Sec., No. 18-cv-1500 (HKS), 2020 WL 3791472, at *4 (W.D.N.Y. July 7, 2020) (where the plaintiff's treatment for mental impairments “was limited to medication from her primary care physician,” the district court concluded that “[t]his dearth of treatment supports the ALJ's finding that Plaintiff's mental impairments were not severe.”) (citing cases). Even if the ALJ had given greater weight to Dr. Engelberg's opinion that Plaintiff was “mildly to moderately impaired in her ability to appropriately deal with stress,” the Second Circuit has held that moderate limitations in mental functioning are consistent with an RFC for unskilled work-the kind of work the ALJ found Plaintiff could perform. See, e.g., McIntyre v. Colvin, 758 F.3d 146, 152 (2d Cir. 2014); Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010).
In assessing that an impairment is not severe because it does not “significantly limit” an individual's physical or mental ability to do “basic work activities,” the “basic work activities” in question include the same mental activities “generally required by competitive, remunerative, unskilled work . . . understanding, remembering, and carrying out simple instructions; making simple work-related decisions; responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in a routine work setting.” Margo J. v. Comm'r of Soc. Sec., No. 20-cv-1614 (DB), 2022 WL 409573, at *7 n.3 (W.D.N.Y. Feb. 10, 2022); see 20 C.F.R. § 404.1522(b); SSR 85-28, 1985 WL 56856, at *3. The ALJ's assessment of Plaintiff's mental impairment was thus proper both at step two and in his determination at step five regarding jobs that Plaintiff could perform despite her limitations.
III. The ALJ's RFC Determination
Plaintiff offers a series of brief points to dispute the ALJ's RFC determination and the conclusion that there were jobs in the national economy that Plaintiff could perform. see Pl.'s Mem. at 5-6. The first of these is easily dismissed. Plaintiff maintains that the ALJ “improperly found that Ms. Rios could return to past relevant work in a sedentary capacity.” Id. at 5. But at step four of his analysis, the ALJ actually determined that Plaintiff could not return to her past relevant work, AR 19, so any purported issue Plaintiff is attempting to raise regarding the ALJ's step four determination is without merit.
Plaintiff further asserts that the ALJ's failure to properly review the medical evidence led to an incorrect finding that Plaintiff “had the ability to perform other work that would require her to sit for prolonged periods of time.” Pl.'s Mem. at 5. Plaintiff contends that the ALJ posed hypotheticals to the vocational expert “that did not consider [her] physical limitations,” id., and that “[t]he ALJ found that [Plaintiff] had a completely different RFC than the [sic] supported by the medical records,” noting Plaintiff's “significant limitations of the movement of his [sic] head and neck.” Id. at 6. Plaintiff elsewhere claims that the ALJ “failed to properly credit Dr. McLean-Long's opinion finding mild to moderate limitations in walking, reaching, squatting, range of motion of the neck and back, that at best she could do light exertion.” Id. at 5.
As noted above, the ALJ determined that Plaintiff retained the RFC to perform light work, with the following exceptions: “no more than frequently reach in all directions, handle, finger, push, or pull bilaterally; no more than occasional operation of foot controls bilaterally; no more than occasional climbing of ramps and stairs; no climbing of ladders, ropes, or scaffolds; no more than occasional balance, stoop, kneel, or crouch; never crawl; and no exposure to unprotected heights, moving mechanical parts or operating a motor vehicle.” AR 15. A careful review of the administrative record, as summarized in detail in the Commissioner's brief, see Def.'s Mem. at 2-10, as well as in the ALJ's Decision, see AR 15-19, makes clear that there is substantial evidence supporting the ALJ's finding regarding Plaintiff's RFC. Although Plaintiff contests the ALJ's RFC determination, she fails to cite to any medical evidence in the record that would support a contrary conclusion. The fact that Plaintiff has suffered “t[w]o aortic replacements, two strokes and two transi[s]chemic attacks,” Pl.'s Mem. at 5-some of which took place well before the relevant period of alleged disability at issue here, see, e.g., AR 266327 (aortic dissection repair surgery in March 2012), 525-29 (first of two strokes occurred in 2012)-does not automatically establish that she is disabled.
Plaintiff also claims in conclusory fashion that the ALJ's failure to properly review the medical evidence led him to improperly find that Plaintiff had “the ability to perform other work that would require her to . . . be on task Ninety Percent of the time.” Pl.'s Mem. at 5. She cites no medical evidence, however, to support a contrary finding.
Indeed, the ALJ noted that despite Plaintiff's significant medical history, “her cardiac and neurological examinations have remained normal and/or stable in these past two years.” AR 18. As the ALJ pointed out, Plaintiff was determined to have suffered “no residual effects” from her two strokes, see, e.g., AR 373 (“CVA [cerebrovascular accident] 2012/2014 w/o residual deficit”); her left ventricular ejection fraction “was consistently assessed as normal” in 2014, see, e.g., AR 656 (normal left ventricular ejection fraction in echocardiogram performed on August 4, 2014), 1198 (normal ventricular function found in echocardiogram performed in November 2014); and her brain scans in 2015 and 2016 “showed that her past infarcts were stable and that she ha[d] not developed any new strokes,” see, e.g., AR 375, 382-83, 436, 474, 735, 798, 799, 823-24, 851-52, 853-54, 982; but see AR 471-72 (brain MRI taken on May 22, 2015 showed small acute left frontal lobe infarct). The ALJ also cited the “essentially normal” cardiac and neurological examinations performed by consultative examiner Dr. McLean-Long. AR 18; see AR 1264-65. Finally, although Plaintiff testified at her hearing that she had been using a cane for the past four months, she did not use an assistive device at her examination with Dr. McLean-Long, and there was no evidence from the relevant period of any gait abnormalities. AR 18; see AR 45, 1264; see also, e.g., 363, 374, 402, 738, 772, 783, 820, 841, 885, 947, 950, 954, 959, 963, 966, 1007, 1031.
An infarct is “an area of dying or dead tissue resulting from inadequate blood flow through blood vessels normally supplying the part.” https://www.collinsdictionary.com/us/dictionary/english/infarct (last visited 8/8/2022).
Despite the May 22, 2015 finding, no acute infarct appeared on the CT scan of Plaintiff's head taken on May 21, 2015, AR 429, and by May 23, 2015, Plaintiff was found to be clinically stable, AR 462; see AR 465 (clinically stable on May 24, 2015). In his notes of a March 2016 examination, Plaintiff's neurologist, considering Plaintiff's claims of possible transischemic attacks (“TIAs”) several times per month, posited that Plaintiff might have been experiencing seizures, “not TIAs.” AR 967-68; see AR 1108 (March 2016 hospital admission was most likely for a focal seizure, not a TIA). Records from a hospital admission in June 2016 note that Plaintiff might have been suffering from complicated migraines or recurrent seizures instead of TIAs or CVAs. see AR 1101.
Moreover, the ALJ's weighing of the medical opinion evidence was proper and supported by substantial evidence, and the opinion evidence itself was substantial evidence that supported the ALJ's RFC determination. In evaluating all medical opinions including, as in this case, those from non-treating sources, an ALJ must consider various factors to determine the appropriate amount of deference to assign to that opinion. These factors include: (i) the length of the treatment relationship and the frequency of examination; (ii) the nature and extent of the treatment relationship; (iii) the extent to which the medical source provides relevant evidence to support an opinion; (iv) the extent to which the opinion is consistent with the record as a whole; (v) whether the opinion is given by a specialist; and (vi) other factors which may be brought to the attention of the ALJ. 20 C.F.R. § 404.1527(c)(2)(i)-(ii),(c)(3)-(c)(6).
This is the citation to the SSA regulation governing the evaluation of opinion evidence for claims filed before March 27, 2017. Plaintiff filed for DIB on May 26, 2016; accordingly, this version of the regulation is the applicable standard for this matter.
Plaintiff challenges the weight that the ALJ assigned to Dr. McLean-Long's opinion, see Pl.'s Mem. at 5, but she provides no legal basis to set aside the ALJ's assessment of that opinion. The ALJ gave “significant weight” to Dr. McLean-Long's opinion that Plaintiff “had mild to moderate limitations in in her ability to walk; toe and heel walk; squat; maneuver her cervical spine; reach up, out and backwards with her bilateral extremities; and to flex and extend her lumbar spine, hips and knees, bilaterally.” AR 18; see AR 1265. In so doing, the ALJ appropriately concluded that Dr. McLean-Long's opinion that “[Plaintiff] ha[d] up to moderate physical limitations [was] consistent with a record showing that her cardiological, neurological and obesity impairments limit her to a range of light exertion,” AR 18-19, and numerous items in the record support this conclusion. See, e.g., AR 960-63 (by February 5, 2015 visit with cardiothoracic surgeon, Plaintiff reported feeling great and was noted to be in New York Heart Association's “Class I” category), 964-66 (record for June 11, 2015 neurology stroke visit noted a normal neurological examination), 968 (normal neurological examination on March 16, 2016), 1229-54 (normal cardiovascular examinations from April 2015 through June 2016), 1244 & 1247 (Plaintiff's cerebrovascular disease was “stable”).
Although the ALJ cites to Dr. McLean-Long's opinion as Exhibit 6F, issued on April 25, 2016, AR 18, Dr. McLean-Long's opinion is actually Exhibit 10F, and it was issued on July 15, 2016. AR 1262-66.
Class I means that a patient has “[n]o limitation of physical activity. Ordinary physical activity does not cause undue fatigue, palpitation, dyspnea (shortness of breath).” https://www.heart.org/en/health-topics/heart-failure/what-is-heart-failure/classes-of-heart-failure (last visited on 8/5/2022).
“Courts in this circuit have consistently found that moderate limitations in a plaintiff's ability to perform exertional activities are consistent with an RFC for light work.” Renee L. v. Comm'r of Soc. Sec., No. 20-cv-991 (TWD), 2022 WL 685285, at *9 (N.D.N.Y. Mar. 8, 2022) (citing cases); see id. at *10 (“Further, up to moderate limitations in reaching and other postural limitations . . . are generally considered consistent with an RFC limiting a plaintiff to light work.”); White v. Berryhill, 753 Fed.Appx. 80, 82 (2d Cir. 2019) (summary order) (RFC for modified light work was supported by consultative examiner's opinion that plaintiff had “‘moderate limitations' in standing, sitting, and performing other activities”); Martinez v. Comm'r of Soc. Sec., No. 13-cv-159 (KMK) (JCM), 2016 WL 6885181, at *13 (S.D.N.Y. Oct. 5, 2016) (“[M]oderate restrictions for lifting, pushing, pulling, overhead reaching, stooping, squatting, prolonged standing, and prolonged walking . . . are consistent with an RFC for light work.”), adopted by 2016 WL 6884905 (S.D.N.Y. Nov. 21, 2016).
At the same time, the ALJ “afforded less weight” to “Dr. McLean-Long's same day somewhat contradictory statement that [Plaintiff] was limited from activities requiring mild or greater exertion secondary to her cardiac condition.” AR 19. Dr. McLean-Long's own cardiac examination of Plaintiff that same day was normal, AR 1264, and the record demonstrates numerous normal cardiovascular examinations during the relevant period, AR 1229-54. Not only is Dr. McLean-Long's opinion suggesting further limitations for Plaintiff inconsistent with her own cardiac findings and those of other providers in the record, but it cannot be squared with the conclusion in the same paragraph of her report that Plaintiff only had mild to moderate limitations in various potential forms of exertion. see AR 1265. Accordingly, the ALJ did not err in discounting Dr. McLean-Long's opinion regarding limitations due to Plaintiff's cardiac condition, as an ALJ may discount an internally inconsistent medical opinion. See Micheli v. Astrue, 501 Fed.Appx. 26, 28-29 (2d Cir. 2012) (summary order) (“A physician's opinions are given less weight when his [or her] opinions are internally inconsistent.”). On balance, the ALJ appropriately resolved the conflict in the evidence by giving more weight to those portions of Dr. McLean-Long's opinion that were consistent with the record as a whole, and less weight to the remainder of the opinion.
The ALJ also gave “great weight” to the opinion of non-examining medical expert, Dr. Steven Goldstein, that Plaintiff “can perform work at the light level.” AR 19. “[A]n ALJ is free to give great weight to the opinion of a non-examining medical expert as long as their opinions are supported by substantial evidence.” Keila R. v. Comm'r of Soc. Sec., No. 20-cv-1243S, 2022 WL 1420777, at *6 (W.D.N.Y. May 5, 2022) (quotation marks omitted); see also Botta v. Colvin, 669 Fed.Appx. 583, 584 (2d Cir. 2016) (summary order); Hancock v. Barnhart, 308 Fed.Appx. 520, 521 (2d Cir. 2009) (summary order). In crediting Dr. Goldstein's opinion, which was given in response to a medical interrogatory provided by the ALJ, see AR 1432-36, the ALJ noted that Dr. Goldstein had been able to review the entire record and had an expertise in neurology. AR 19; see 20 C.F.R. § 404.1527(c)(5) (“We generally give more weight to the medical opinion of a specialist about medical issues related to his or her area of specialty than to the medical opinion of a source who is not a specialist.”).
Dr. Goldstein opined that Plaintiff would have been able to perform work at the light exertional level by February 2015. While this opinion potentially leaves open the question of Plaintiff's RFC from her alleged onset date of July 31, 2014 through January 2015, the Act defines “disability” 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 twelve months.” 42 U.S.C. § 423(d)(1)(A) (emphasis added); see 20 C.F.R. § 404.1509 (an impairment “must have lasted or be expected to last for a continuous period of at least 12 months.”); Barnhart v. Walton, 535 U.S. 212, 214-15 (2002) (noting that both the impairment and the inability to engage in substantial gainful activity must last at least 12 months). There is no evidence in the record to support a finding that Plaintiff's neurological and cardiac impairments resulting from her August 2014 stroke and October 2014 aortic valve replacement lasted beyond January 2015. Indeed, as the ALJ properly and accurately explained, Dr. Goldstein's opinion was supported by the medical records, which confirmed that Plaintiff's “cardiac and neurological impairments have been largely stable or improving since February 2015.” AR 19 (citing Plaintiff's medical treatment records); see AR 960-66, 1229-54; 20 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent a medical opinion is with the record as a whole, the more weight we will give to that medical opinion.”). Moreover, as noted by the ALJ, see AR 19, and reflected in the medical records, Plaintiff's hypertension was also stable, see AR 759, 763, 896, 964, 968, 1238, 1242, 1250, 1252, 1254, and her obesity had not limited her physical functioning, see, e.g., AR 947, 950, 954, 959, 962-63, 966 (normal musculoskeletal and/or motor exams, normal gait).
Treatment records from an emergency room visit on January 8, 2015 reflect a steady gait and no cardiovascular or neurological issues. see AR 402, 406-07, 420.
Finally, Plaintiff challenges the ALJ's reliance on Plaintiff's engagement in activities of daily living in finding that she was not disabled. Pl.'s Mem. at 7. The ALJ noted in his decision Plaintiff's hearing testimony “that she takes the bus three times per month and she last took the train this past Sunday....She said that she does not want to move but she also said that she goes to church every Sunday.” AR 15-16. Plaintiff also reported at her psychiatric consultative examination that she was able to dress, shower, and groom herself; could cook; took public transportation; read a lot; went to church and Bible study; listened to the radio; and played with her grandson, AR 1259-60, and hospital records noted that she was “independent with activities of daily living,” AR 1134, 1140. Plaintiff argues that the ALJ improperly held these activities against her, see Pl.'s Mem. at 5; however, it was appropriate for the ALJ to consider evidence of Plaintiff's activities of daily living in deciding to discount aspects of Plaintiff's testimony, and this evidence supports the ALJ's RFC determination. See Cichocki v. Astrue, 729 F.3d 172, 178 (2d Cir. 2013) (per curiam) (ALJ properly relied on plaintiff's report that “she performed numerous daily tasks, such as walking her dogs and cleaning her house, that are consistent with a residual capacity to perform light work”); Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir. 2009) (per curiam) (ALJ's finding that claimant's testimony about his limitations was not fully credible was appropriate in part because of evidence regarding claimant's activities, such as caring for his one-year-old child, including changing diapers, sometimes vacuuming and washing dishes, occasionally driving, and watching television, reading, and using the computer); see also, e.g.,
Fischer v. Comm'r of Soc. Sec., No. 18-cv-1467, 2020 WL 4731878, at *4 (W.D.N.Y. Aug. 14, 2020) (in assessing the plaintiff's RFC, the ALJ could consider that the activities of daily living to which the plaintiff testified-“that he was able to cook, clean, do laundry, shop, use a computer to access social media, use public transportation, perform home maintenance, and that he had, in the past, cared for his elderly mother”-were “consistent with light work”).
In sum, the ALJ's RFC determination was legally correct and supported by substantial evidence.
IV. Step Five Determination
Plaintiff maintains that the hypothetical that the ALJ posed to the vocational expert during the hearing “was not supported by the substantial evidence in the record . . . ” because the hypothetical “did not consider the claimant's physical limitations.” Pl.'s Mem. at 5, 6. The hypothetical that the ALJ posed contained the same physical limitations that were later included in the ALJ's RFC finding in the decision; the hypothetical also included the additional non-exertional mental limitations that the individual in question “can perform more than simple, but less than complex tasks that are not at a production rate pace such as an assembly line” and “could tolerate no more than occasional changes in the work setting.” AR 56. The ALJ also asked about sedentary jobs that would fit this hypothetical and be limited to “simple, routine work.” AR 58; see id. (limiting hypothetical individual to unskilled work).
In his step two analysis of Plaintiff's mental impairment, the ALJ found, with respect to the four areas of mental functioning, that Plaintiff had only a mild limitation in the functional area of “adapting or managing oneself” and no limitations in the other three functional areas. These findings were supported by substantial evidence in the record, as set forth in the analysis of the Step Two Determination, supra. As previously noted, the Second Circuit has held that even moderate limitations in mental functioning are consistent with an RFC for unskilled work. See, e.g., McIntyre, 758 F.3d at 152; Zabala, 595 F.3d at 410.
“An ALJ may rely on a vocational expert's testimony regarding a hypothetical as long as there is substantial record evidence to support the assumption[s] upon which the vocational expert based his [or her] opinion, and [it] accurately reflect[s] the limitations and capabilities of the claimant involved.” McIntyre, 758 F.3d at 151 (quotation marks and citations omitted). As explained above, the ALJ's RFC determination is supported by substantial evidence, and therefore the ALJ's hypothetical inquiry to the vocational expert, which was consistent with the RFC determination as to the physical limitations, is also supported by substantial evidence.
Moreover, although Plaintiff did not object to the ALJ's inclusion of Plaintiff's non-exertional mental limitations in the hypothetical that he posed to the vocational expert, it is clear that the inclusion of those non-exertional mental limitations is also supported by substantial evidence. see Section II, supra. The ALJ did not incorporate the non-exertional mental limitations that were included in the hypothetical posed to the vocational expert as part of the RFC determination in the decision. But the inclusion of such limitations in the hypothetical and not in the RFC does not prejudice Plaintiff; in fact, a more restrictive hypothetical to the vocational expert necessarily would result in expert testimony regarding a narrower range of potential jobs that exist in the national economy than would have resulted from a less restrictive hypothetical. Accordingly, any error that could be assigned based on the ALJ's inclusion of Plaintiff's non-exertional mental limitations-limitations that are supported by substantial evidence in the record-as part of the hypothetical to the vocational expert but not as part of the RFC in the decision is harmless.
Accordingly, the ALJ's reliance on the vocational expert's testimony at step five of his analysis, based on the hypothetical posed to the vocational expert, was appropriate. This testimony constitutes substantial evidence to support the ALJ's conclusion that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform.
V. Failure to Consider Additional Evidence
Finally, Plaintiff asserts in a conclusory fashion that the SSA Appeals Council “erred in not considering the additional medical evidence submitted that clearly showed that Ms. Rios could not perform any of the three jobs discussed at his [sic] hearing by the vocational expert.” Pl.'s Mem. at 7. Yet Plaintiff nowhere specifies what additional medical evidence was allegedly provided to the Appeals Council, and there is nothing in the administrative record to support the claim that additional medical evidence was in fact submitted. Indeed, the only “additional evidence” noted by the Appeals Council was the form on which Plaintiff requested additional time to submit evidence as part of her appeal. see AR 4, 172-73; see also AR 5-6 (letter from Appeals Council stating that it had granted Plaintiff's request for more time before acting on her case). Despite having made this request for extra time to submit further evidence, and despite the Appeals Council having granted the request, there is no indication in the record of any additional evidence having been submitted.. Accordingly, the Court cannot find any error with the administrative process on this basis.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff's motion for judgment on the pleadings (ECF Nos. 26-27) be DENIED, the Commissioner's motion for judgment on the pleadings (ECF No. 28) be GRANTED, and that judgment be entered in favor of the Commissioner.
NOTICE
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 and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kenneth M. Karas, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Karas, 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 appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).
ANDREW E. KRAUSE UNITED STATES MAGISTRATE JUDGE