Opinion
Civil Action 20 Civ. 2819 (AJN) (SLC)
06-16-2021
LAYZA E. GOTAY RODRIGUEZ, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
HONORABLE ALISON J. NATHAN, United States District Judge:
REPORT & RECOMMENDATION
SARAH L. CAVE, United States Magistrate Judge
I. INTRODUCTION
Plaintiff Layza E. Gotay Rodriguez (“Plaintiff”) commenced this action pursuant to Section 205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. § 405(g). She seeks review of the decision by the Commissioner (the “Commissioner”) of the Social Security Administration (“SSA”) dated May 28, 2019 (the “ALJ Decision”), finding that (i) she did not become disabled until December 2, 2015, (ii) before that date was not disabled and had the residual functional capacity (“RFC”) to perform certain light work, and (iii) was therefore not entitled to receive Disability Insurance Benefits (“DIB”) or Supplemental Security Income (“SSI”) before December 2, 2015. As described further at § II(C)(2), infra, the ALJ Decision found that Plaintiff never had a severe impairment of fibromyalgia, and her disability effective December 2, 2015 was based on psychiatric disorders.
Plaintiff appeals from the Commissioner's determinations that she was not disabled before December 2, 2015 and that her fibromyalgia was not a severe impairment. (ECF No. 18). She contends that the ALJ Decision was erroneous, not supported by substantial evidence, and failed to apply the correct legal standards, and asks the Court to remand for a new hearing to reconsider the evidence, particularly focusing on whether the ALJ erroneously failed to consider her fibromyalgia-as to all time periods-and failed to find that her psychiatric disability existed before December 2, 2015.
The parties have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). On December 28, 2020, Plaintiff filed a motion for judgment on the pleadings (ECF No. 18) (“Plaintiff's Motion”), on April 7, 2021, the Commissioner filed its cross-motion (ECF No. 24) (the “Commissioner's Motion”), and on April 28, 2021, Plaintiff filed her reply (ECF No. 29). For the reasons set forth below, I respectfully recommend that Plaintiff's Motion be GRANTED and the Commissioner's Motion be DENIED.
The Court granted the Commissioner leave to file an amended memorandum of law, which corrected the table of authorities. (ECF Nos. 27-28).
II. BACKGROUND
A. Procedural History
On June 28, 2012, Plaintiff filed an application for DIB and SSI benefits, alleging that she had been disabled and unable to work since June 20, 2010 (the “2012 Claim”). (SSA Administrative Record (“R.”) 82-83, 503). On July 23, 2013, ALJ Dennis G. Katz issued a decision (the “2013 ALJ Decision”) finding that, for the period from June 20, 2010 until July 23, 2013, she was not disabled. (R. 28-35). The Appeals Council denied Plaintiff's request for review of the 2013 ALJ Decision, and she filed an action in the Southern District of New York, Gotay v. Commissioner of Social Security, 15 Civ. 1265 (PAE) (FM) (the “2015 Lawsuit”), challenging the 2013 ALJ Decision. (R. 1-5, 503, 652-55). The parties in the 2015 Lawsuit stipulated to remand, and on October 5, 2015, the Court remanded the case to the Commissioner for further administrative proceedings. (R. 503, 632, 654-55; No. 15 Civ. 1265 (ECF No. 12)). The Appeals Council directed ALJ Weiss to obtain additional evidence concerning Plaintiff's impairments, further evaluate her symptoms and RFC, and obtain evidence from a vocational expert to clarify the effect of her limitations. (See R. 503).
In order to quality for DIB, one must be both disabled and insured for benefits. 42 U.S.C. § 423(a)(1)(A); 20 C.F.R. §§ 404.120, 404.315(a). The last date a person meets the insurance requirement is the date by which the claimant must establish a disability. Plaintiff met the insurance requirements through December 31, 2014, and thus her disability must have begun on or before that date to quality for DIB. (R. 506).
SSI, unlike DIB, has no requirement of being insured for benefits, but requires a showing of financial need. 20 C.F.R. § 416.202. The definition of disability is the same for both DIB and SSI, but the onset date for SSI is the date the claimant filed an application for benefits, and the benefits are limited to that date forward.
The Administrative Record appears at ECF Nos. 15 - 15-5. The Court cites to the pages of the Administrative Record, not the ECF page numbers.
Shortly before the 2015 Lawsuit was remanded, on August 11, 2015, Plaintiff filed a new disability claim for SSI and DIB (the “2015 Claim”). (R. 503, 633-34). On remand, the 2012 Claim and the 2015 Claim were consolidated. (See R. 503).
On May 28, 2019, ALJ Weiss issued the ALJ Decision finding that Plaintiff was not disabled under the Act until December 2, 2015, at which time she became disabled based on her psychiatric disorders. (R. 503-15).
On February 12, 2020, the SSA Appeals Council denied Plaintiff's request for review of the ALJ Decision. (R. 463-69). Accordingly, the ALJ Decision became the final decision of the Commissioner. 20 C.F.R. § 404.984(a).
On April 5, 2020, Plaintiff filed the Complaint in this Court. (ECF No. 1). Plaintiff argues that the ALJ's determination that before December 2, 2015 she was not disabled, and had the RFC to perform light work was not supported by substantial evidence because: (1) the ALJ failed to consider evidence of her fibromyalgia in finding that it was not a severe impairment, and failed to address fibromyalgia in the RFC analysis; (2) the ALJ failed to consider her obesity in determining her RFC; (3) the ALJ failed to appropriately apply the treating physician rule, and should have accorded controlling weight to the opinion of her treating psychiatrist, as a result of which she should have been found disabled earlier than December 2015 on the basis of her psychiatric impairments; and (4) the ALJ failed to consider her dizziness and fatigue in determining her RFC. (ECF No. 19). The Commissioner argues that the ALJ Decision is supported by substantial evidence. (ECF No. 28).
B. Factual Background
1. Non-medical evidence
Plaintiff was 30 years old when she filed the 2012 Claim and 34 years old when she filed the 2015 Claim. (See R. 560, 66). She had a young daughter with whom she lived in an apartment in the Bronx. (R. 59, 560, 599). Her daughter assisted her with chores and tasks at home. (R. 599). Plaintiff prepared meals for her, laundered her clothing, accompanied her to school-a roughly one-block walk-and assisted with her homework. (R. 247, 562, 564). She did chores at home but tried to keep them “as light as possible.” (R. 563). Plaintiff completed high school in Puerto Rico and worked in the United States as a home health aide, cashier, and gas station attendant (R. 53-54, 61). She stopped working in June 2010. (R. 561). She supported herself and her daughter with food stamps and public housing benefits. (R. 600).
During the hearing before ALJ Weiss, Plaintiff described feeling pain and discomfort both sitting and standing for extended periods, walking further than a block, and described limitations in carrying heavy items. (R. 564). She described feeling isolated, “try[ing] not to be around people as much as possible[, ]” and feeling anxiety being around more than a handful of people and in confined spaces. (R. 565, 568). Plaintiff testified that she only read for enjoyment occasionally, as a result of side effects of dizziness and fatigue from her medications. (R. 602). Plaintiff reported that she did not rest well due to her pain, and that due to sleep apnea since 2012 or 2013 has used a continuous positive airway pressure (“CPAP”) machine. (R. 247; see R. 507). In October 2018, she weighed 225 pounds and stood five feet, three inches tall. (R. 560).
2. Medical evidence
Plaintiff and the Commissioner have both provided summaries of the medical evidence in the record, which are largely consistent with one another. (See ECF Nos. 19 at 10-23; 28 at 9- 23). Accordingly, the Court adopts both parties' summaries of the medical evidence as accurate and complete and sets forth those additional facts relevant to the Court's analysis, particularly concerning fibromyalgia. (See infra at III(B)(1)).
C. Administrative Proceedings
1. Hearings before ALJ Weiss
a. June 8, 2017
On June 8, 2017, ALJ Weiss held a hearing at which Plaintiff was represented by counsel. (R. 590-603). Plaintiff testified that she was prescribed increasing dosages of Gabapentin and Cymbalta for her fibromyalgia, and described symptoms including difficulty concentrating and pain throughout the body, including her back, shoulders, neck, thighs, hands, and knees. (R. 596- 97). Plaintiff described that side effects from the fibromyalgia medications included dizziness and lethargy, a feeling of “no energy.” (Id.) She experienced swelling to her knees, which was treated since 2011 or 2012 with injections. (R. 598). She also testified that she was receiving ongoing physical therapy for degenerative disc disease to her lower back. (R. 598-99). Plaintiff reported monthly psychiatric treatment with Dr. Contreras, with whom she began treatment in 2012 or 2013, supplemented by sessions with a therapist. (R. 600-01). She reported taking medications daily for vertigo and migraine headaches. (R. 602-03). The hearing was adjourned so that the ALJ could obtain outstanding medical records from Montefiore Medical Center (“Montefiore”), where Plaintiff was treated for her fibromyalgia, as well as Dr. Contreras' treatment records. (R. 592-94, 603). ALJ Weiss asked her counsel if there were any further outstanding records, and he replied, “[a]s far as records, no, Your Honor, I think those two facilities would cover it.” (R. 595).
b. October 16, 2018
At the start of the resumed hearing on October 16, 2018, Plaintiff's counsel notified the ALJ that she had received additional medical records from Montefiore, including psychiatric records from Dr. Foote. (R. 556). The ALJ responded that these records were not in the SSA's file. (Id.)
Plaintiff testified at the October 16, 2018 hearing through a Spanish language interpreter. (R. 559-60). She stated that she was five feet, three inches tall and weighed 225 pounds, although her weight fluctuated. (R. 560). She last worked, as a home health aide, in June 2010, but testified that she stopped working after injuring her back attempting to lift an obese patient. (R. 561).
Plaintiff described her daily activities, home life, and medical limitations. She testified that she took her daughter to school daily but otherwise did not leave her house often, though she was able to maintain her home, including cooking and cleaning. (R. 562-63). She testified that prolonged sitting and standing longer than 30 or 40 minutes caused her discomfort and required a posture change, and walking more than a block and a half caused severe back pain. (R. 564). She described a persistent baseline level of pain at 8/10 in intensity, specifically in her back. (R. 565-66). She also testified that she experienced two or three daily episodes of vertigo and dizziness lasting approximately thirty minutes and generally coinciding with a position change or abrupt movement, and migraine episodes at least twice weekly. (R. 569-70).
Plaintiff answered questions specifically concerning her fibromyalgia and chronic back pain. She described that the fibromyalgia resulted in “extreme” pain throughout her body at all times not mitigated by pain medicine. (R. 571). With respect to the chronic back pain, she testified that she had this condition since 2010, and it was always present, rendering walking, sitting and standing uncomfortable, and limiting her ability to stoop down. (R. 571-72).
She testified that she was prescribed Prozac and Ambien, as well as Gabapentin, Naprosyn, Antivert and Famotidine. (R. 561-64).
Plaintiff was questioned about her psychiatric treatment and symptoms. She testified that she experienced anxiety around crowds and in confined places, and “tr[ies] not to be around people as much as possible.” (R. 565). Plaintiff also described sleeping during the day, rather than at night, “because in the days [] I can see everything and I feel more secure” and responded “[a]ll the time” when asked if she has intrusive thoughts or flashbacks to past traumatic events. (R. 567). She testified that she shifted her primary psychiatric care from Dr. Contreras to Dr. Foote because she felt that the medication Dr. Contreras prescribed exacerbated her anxiety. (Id.)
Plaintiff's attorney confirmed to the ALJ that neither Dr. Foote nor Dr. Contreras could give a “retrospective opinion” that she was disabled as of 2010. (R. 574-75).
Dr. Michael Falkove, M.D. testified next and provided an expert opinion in internal medicine. (R. 577). Dr. Falkove asserted that although Plaintiff had “a little bit of this and a little bit of that, ” she was not disabled, and she did not have any conditions that met or equaled any listing. (R. 579). Dr. Falkove opined that she had the RFC to “certainly” do sedentary work and “probably” also do light work. (Id.) Dr. Falkove considered her obesity and noted that “[t]he morbid obesity doesn't impair her ability to move around a lot. She's not going to be able to do any job that requires any significant walking and standing, but certainly sitting, she's able to do.” (Id.) Accordingly, Dr. Falkove determined that she could sit at least six hours in a workday and stand and walk for one hour each. (R. 578).
Dr. Falkove did not dispute that Plaintiff had fibromyalgia and received extensive medical treatment for fibromyalgia. Asked about certain treatment records he responded, “I'm not disputing the fact that the lady has fibromyalgia, don't get me wrong.” (R. 582-83). Dr. Falkove also acknowledged that “she's certainly being treated” for fibromyalgia, which included “a lot of trigger point injections over the years” as well as prescriptions for “a bunch of medications.” (R. 583, 581). Although there was not a “hard diagnosis” in the records, Dr. Falkove confirmed that she had “a whole bunch of muscle tenderness here and there and everywhere else . . . that's not in dispute.” (R. 581, 583). Dr. Falkove noted that “[f]ibromyalgia is basically a diagnosis of exclusion and I do not see any extensive rheumatologic workup, any extensive neurologic workup or orthopedic workup, to come up with that.” (R. 580).
Dr. Falkove similarly noted that the record did not include any MRIs of the spine, EMGs “or anything like that” concerning Plaintiff's back pain, nor did it include “any neurologic workup” to address her migraine headaches or dizziness, which Dr. Falkove deemed were “pure[ly] subjective[.]” (R. 580-81).
c. March 7, 2019
The hearing proceeded on March 7, 2019 with the expert psychiatric testimony of Dr. Chukwuemeka Efobi. (R. 528). Dr. Efobi diagnosed Plaintiff with depressive disorder, most likely major depressive disorder, and anxiety disorder, with anxiety, social phobia and panic disorder. (R. 528). In evaluating Plaintiff, Dr. Efobi noted that the severity of her condition began in late 2015, also noted as “about 2015 or [20]16[, ]” because earlier, her condition was “probably mild to moderate at the most.” (R. 528, 530-31). Reviewing her medical records, Dr. Efobi noted that “there is really no reporting of severity actually until 2016[.]” (R. 533). On follow-up questioning by ALJ Weiss concerning whether the severity of Plaintiff's mental condition extended to December 2014, Dr. Efobi was adamant that “what I have is from 2015, '16, that's what I'm comfortable with.” (R. 531).
Following Dr. Efobi's testimony, Yaakov Taitz testified as a vocational expert (“VE”). (R. 539). ALJ Weiss asked the VE if there were any jobs in the national economy for a hypothetical individual that could perform either light or sedentary work, had limited English language abilities, was of the same age and education level as Plaintiff, and had the same prior employment experience as her. (R. 540-43). The ALJ also limited the hypothetical to low stress jobs, with only occasional decision making and occasional changes to the work setting, directed that the individual “can only walk a block, ” provided for “sit/stand at will” and added additional exertional limitations and environmental limitations. (R. 544, 547-48).
The additional limitations included limiting the hypothetical individual to occasionally lifting 50 pounds, frequently lifting eleven to 20 pounds, continuously lifting up to ten pounds, never climbing ladders or scaffolds, crouching or crawling, occasionally climbing stairs and ramps, occasionally stooping and kneeling, frequently balancing, never being exposed to unprotected heights, moving parts or vibrations, occasionally being exposed to dust, odors, fumes and pulmonary irritants, extreme cold and extreme heat, frequently operating a motor vehicle and being exposed to humidity and wetness, and limiting exposure to loud volume. (R. 546-47).
The VE testified that there were jobs available for such an individual, including as a mail clerk or mail sorter, router clerk, addresser and document preparer. (R. 548). The VE testified that the hypothetical individual could be off-task up to ten percent of the time each day, and absent up to one day monthly, but more than one absence per month would not be acceptable. (R. 549).
2. The ALJ Decision
On May 28, 2019, ALJ Weiss issued his Decision granting Plaintiff SSI benefits for a period of disability beginning on December 2, 2015, and denying her DIB benefits altogether. (R. 515). He held that, “[a]fter careful consideration of all of the evidence . . . [she] was not disabled prior to December 2, 2015, but became disabled on that date and has continued to be disabled through the date of this decision. [Plaintiff] was not under a disability within the meaning of the [] Act at any time through December 31, 2014, the date last insured.” (R. 504).
ALJ Weiss followed the five-step disability determination process. As a preliminary matter, the ALJ found that Plaintiff met the insured status requirements for her DIB application through December 31, 2014. (R. 506). At step one, ALJ Weiss found that she had not engaged in substantial gainful activity since her alleged onset date, June 20, 2010. (R. 503, 506). At step two, the ALJ determined that since the alleged onset date, June 20, 2010, she had two severe impairments: obesity and degenerative disc disease. (R. 506). ALJ Weiss determined that beginning on December 2, 2015, her severe impairments also included depressive disorder and panic disorder. (Id.)
As discussed in greater detail, infra § III(B)(1)(c)-(d), ALJ Weiss determined at step two that Plaintiff's fibromyalgia was not a severe impairment at any time because the record evidence did not sufficiently establish it in accordance with the guidelines set forth in the pertinent Social Security Ruling (“SSR”). (R. 507-08). Likewise, the ALJ determined that her anemia, which was not shown to significantly limit her ability to perform basic work activities for at least twelve consecutive months, was not a severe impairment. (R. 508).
ALJ Weiss also determined that her complaints of knee pain, headaches and dizziness were not medically determinable impairments. (R. 508-09).
At step three, the ALJ found that before December 2, 2015, the date Plaintiff became disabled, she did not have an impairment or a combination of impairments that met or medically equaled the severity of one of the listed impairments in the Act. (R. 509). (The impairments listed in 20 C.F.R. Appendix 1, Subpart P, Part 404 are known as the “Listings”). In particular, based on the testimony of Dr. Falkove, the ALJ found that her impairments did not meet or medically equal Listing 1.00, musculoskeletal systems. (Id.)
ALJ Weiss assessed her RFC and determined that, before December 2, 2015, the date on which she became disabled, she had the RFC to perform light work with some limitations. (R. 509). The ALJ noted that her statements about the intensity, persistence, and limiting effects of her symptoms were inconsistent “because the treating source evidence and consultative exams show few abnormalities and conservative and limited treatment.” (R. 511).
As defined in 20 CFR 404.1567(b) and 416.967(b).
At this step ALJ Weiss evaluated the opinions of four consultative examiners and one treating source. (R. 511-12). ALJ Weiss accorded little weight to consultative examiner Dipti Joshi, M.D., whose assertion of marked limitations the ALJ found to be undercut by a “largely normal” musculoskeletal exam that bore “no logical connection” to Dr. Joshi's opinion. (R. 511). The ALJ afforded moderate weight to Dr. Long's “vague” opinion and assertion of exertional limitations, which he determined was contradicted by record evidence that Plaintiff was “walking a good bit in 2014 and 2015.” (Id.) By contrast, ALJ Weiss gave significant weight to the opinion of consultative examiner David Mahony, Ph.D., whose opinion was consistent with his exam and findings, and significant weight to Dr. Falkove, who concluded that she could perform sedentary and possibly light work, and noted that there was “no detailed fibromyalgia work-up, as well as no attempt to rule out other causes[]” and noted no work-up on complaints of migraine headaches or dizziness. (Id.) ALJ Weiss found Dr. Falkove's opinion to be supported by the record evidence. (Id.)
By contrast, ALJ Weiss gave “little weight” to the assertion of treating source, Dr. Contreras, that Plaintiff had marked limitations “since prior to the date last insured, ” December 31, 2014, because the records predating December 2, 2015 “simply do not reflect that level of reduced functioning[] [and] . . . it appears that Dr. Contreras lists far more depressive symptoms in her medical source statement than are found in the records.” (R. 511). The ALJ also noted that there was a gap in Dr. Contreras' records from 2013-16, and that the SSA made “numerous” attempts to obtain the missing records, “only to be rebuffed.” (Id.) Accordingly, the ALJ determined that there is “no way” to adequately weigh Dr. Contreras' opinion. (Id.)
At step four, ALJ Weiss found that, since June 20, 2010, Plaintiff had been unable to perform her past relevant work as a home attendant and waitress. (R. 512). At step five, ALJ Weiss found that, before December 2, 2015, there were jobs in the national economy-both sedentary and at a light exertion level-that she could perform, considering her age, education, work experience and RFC. (R. 512-13). Accordingly, the ALJ determined that before December 2, 2015, she was not disabled. (R. 513).
By contrast, ALJ Weiss determined that beginning on December 2, 2015, the severity of her psychiatric impairments met the criteria for affective disorders in Listing 12.04. (R. 513).The ALJ determined that her psychiatric symptoms increased as of this date, and that, effective December 2, 2015, her allegations regarding her symptoms and limitations were consistent with the evidence. (R. 514). By contrast, ALJ Weiss noted that her mental status evaluations and PHQ-2 scores were “fairly normal” until December 2, 2015. (Id.) ALJ Weiss afforded “great weight” to treating source Dr. Foote, who began treating her in 2018 and had “no knowledge that would allow him to assess her condition prior to this period[, ]” and “good weight” to medical expert Dr. Efobi, who determined that Listing 12.04 was met, and, although “vague” about the date on which the Listing began to be met, made “clear that it did not go back to the date last insured.” (Id.) Finally, ALJ Weiss gave “some weight” to Dr. Contreras' opinion at this step. (R. 514-15).
The ALJ found that her major depressive disorder satisfied the “paragraph A” criteria; the “paragraph B” criteria were satisfied by the resulting limitations; and the “paragraph C” criteria were established by her documented ongoing treatment and marginal adjustment. (R. 513); see Listing 12.04, 20 C.F.R. Pt. 404, Subpt. P, App. 1.
3. The Appeals Council decision
On February 12, 2020, the SSA Appeals Council declined to assume jurisdiction. (R. 463- 69).
III. DISCUSSION
A. Applicable Legal Standards
1. Standard of Review
Under Rule 12(c), a party is entitled to judgment on the pleadings if she establishes that no material facts are in dispute and that she is entitled to judgment as a matter of law. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999); Morcelo v. Barnhart, No. 01 Civ. 743 (RCC) (FM), 2003 WL 470541, at *4 (S.D.N.Y. Jan. 21, 2003).
The Act provides that the Commissioner's findings “as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). A court may set aside the Commissioner's decision denying SSI benefits if it is not supported by substantial evidence or was based on legal error. See Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). Judicial review, therefore, involves two levels of inquiry. First, the Court must decide whether the ALJ applied the correct legal standard. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, No. 05 Civ. 4254 (SCR) (MDF), 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). Second, the Court must decide whether the ALJ's decision was supported by substantial evidence. Id. “In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.” Longbardi v. Astrue, No. 07 Civ. 5952 (LAP), 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal citations omitted). The substantial evidence test applies not only to the factual findings, but also to the inferences and conclusions drawn from those facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y. 1999). In determining whether the administrative record contains evidence to support the denial of claims, the Court must consider the whole record, and weigh all evidence to ensure that the ALJ evaluated the claim fairly. See, e.g., Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999). The Commissioner, not the Court, resolves evidentiary conflicts and appraises the credibility of witnesses, including the claimant. See, e.g., Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
Disability-benefits proceedings are non-adversarial in nature, and therefore, the ALJ has an affirmative obligation to develop a complete administrative record, even when the claimant is represented by counsel. See Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009). To this end, the ALJ must make “every reasonable effort” to help an applicant get medical reports from her medical sources. 20 C.F.R. §§ 404.1512(b), 416.912(b). Ultimately, “[t]he record as a whole must be complete and detailed enough to allow the ALJ to determine the claimant's residual functional capacity.” Casino-Ortiz v. Astrue, No. 06 Civ. 155 (DAB) (JCF), 2007 WL 2745704, at *7 (S.D.N.Y. Sept. 21, 2007). When there are inconsistencies, gaps, or ambiguities in the record, the regulations give the ALJ options to collect evidence to resolve these issues, including re-contacting the treating physician, requesting additional records, arranging for a consultative examination, or seeking information from others. 20 C.F.R. §§ 404.1520b, 416.920b.
The Act authorizes a court, when reviewing decisions of the SSA, to order further proceedings: “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); see Butts v. Barnhart, 388 F.3d 377, 382 (2d Cir. 2004). If “‘there are gaps in the administrative record or the ALJ has applied an improper legal standard, '” the Court will remand the case for further development of the evidence or for more specific findings. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)). Remand is particularly appropriate where further findings or explanation will clarify the rationale for the ALJ's decision. Pratts, 94 F.3d at 39. If, however, the reviewing court concludes that an ALJ's determination to deny benefits was not supported by substantial evidence, a remand solely for calculation of benefits may be appropriate. See, e.g., Butts, 388 F.3d at 386 (discussing Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000)).
2. Standards for benefit eligibility
For purposes of SSI and DIB benefits, one is “disabled” within the meaning of the Act, and thus entitled to such benefits, when she is “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(3)(A). The Act also requires that the impairment be “of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 1382c(3)(B). In reviewing a claim of disability, the Commissioner must consider: “(1) objective medical facts; (2) diagnoses or medical opinions based on those facts; (3) subjective evidence of pain and disability testified to by claimant and other witnesses; and (4) the claimant's background, age, and experience.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988).
Under the applicable regulations, an alleged disability is evaluated under the sequential five-step process set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v) and 20 C.F.R. § 416.920(a)(4)(i)-(v). The Second Circuit has described the process as follows:
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on the medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the Claimant could perform.Bush v. Shalala, 94 F.3d 40, 44-45 (2d Cir. 1996) (quoting Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983)).
At the first four steps, the claimant bears the burden of proof. At the fifth step, the burden shifts to the Commissioner to demonstrate that there are jobs in the national economy that the claimant can perform. See, e.g., Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). In meeting the burden of proof at the fifth step, the Commissioner can usually rely on the Medical-Vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, known as “the Grid.” Zorilla v. Chater, 915 F.Supp. 662, 666-67 (S.D.N.Y. 1996).
The Court notes that “[i]n March 2017, the Social Security Administration published regulations that effectively abolished the Treating Physician Rule for claims filed on or after March 27, 2017.” Dorta v. Saul, No. 19 Civ. 2215 (JGK) (RWL), 2020 WL 6269833, at *3 n.8 (S.D.N.Y. Oct. 26, 2020). Under the new regulations, the ALJ “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Because Plaintiff filed her claims in 2012 and 2015, the Treating Physician Rule remains applicable. (See §§ II(A), supra, III(B)(2) infra).
The regulations require the ALJ to give “controlling weight” to “the opinion of a claimant's treating physician as to the nature and severity of the impairment . . . so long as it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” Burgess, 537 F.3d at 128 (internal citation omitted); accord Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); Correale-Englehart v. Astrue, 687 F.Supp.2d 396, 426 (S.D.N.Y. 2010). “This preference is generally justified because treating sources are likely to be ‘the medical professionals most able to provide a detailed, longitudinal picture' of a plaintiff's medical impairments and offer a unique perspective that the medical tests and SSA consultants are unable to obtain or communicate.” Correale-Engelhart, 687 F.Supp.2d at 426 (quoting 20 C.F.R. § 416.927([c])(2)); see 20 C.F.R. § 404.1527.
If the ALJ determines that a treating physician's opinion is not controlling, he is nevertheless required to consider the following factors in determining the weight to be given to that opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence provided to support the treating physician's opinion; (4) the consistency of the opinion with the record as a whole; (5) whether the opinion is from a specialist; and (6) other factors brought to the Commissioner's attention that tend to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c); 416.927(c). The ALJ must give “good reasons” for not crediting the plaintiff's treating physician. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (explaining that Appeals Council had “an obligation to explain” the weight it gave to the opinions of the non-treating physicians). After considering these factors, the ALJ must fully set forth his reasons for the weight assigned to the treating physician's opinion. Burgess, 537 F.3d at 129.
While the ultimate issue of disability is reserved to the Commissioner, the regulations make clear that opinions from one-time examining sources that conflict with treating source opinions are generally given less weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). See also Selian v. Astrue, 708 F.3d 409, 419 (2d Cir. 2013) (“ALJs should not rely heavily on the findings of consultative physicians after a single examination.”); Cabreja v. Colvin, No. 14 Civ. 4658 (VSB), 2015 WL 6503824, at *30 (S.D.N.Y. Oct. 27, 2015) (explaining that opinions of one-time consultants should not overrule those provided by the treating medical sources unless there are “serious errors” in treating sources' opinions). Failing to apply proper weight to a treating physician's opinion is reversible error. Greek v. Colvin, 802 F.3d 370, 376 (2d Cir. 2015).
4. Assessing a claimant's subjective allegations
In considering a claimant's symptoms that allegedly limit his or her ability to work, the ALJ must first determine “whether there is an underlying medically determinable physical or mental impairment(s) - i.e., an impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques - that could reasonably be expected to produce the claimant's pain or other symptoms.” 20 C.F.R. §§ 404.1529(c), 416.929(c). If such an impairment is found, the ALJ must next evaluate the “intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functional limitations.” 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1). To the extent that the claimant's expressed symptoms are not substantiated by the objective medical evidence, the ALJ must evaluate the claimant's credibility. See Meadors v. Astrue, 370 Fed.Appx. 179, 183-84 (2d Cir. 2010); Taylor v. Barnhart, 83 Fed.Appx. 347, 350-51 (2d Cir. 2003).
Courts have recognized that “the second stage of [the] analysis may itself involve two parts.” Sanchez v. Astrue, No. 07 Civ. 931 (DAB), 2010 WL 101501, at *14 (S.D.N.Y. Jan. 12, 2010). “First, the ALJ must decide whether objective evidence, on its own, substantiates the extent of the alleged symptoms (as opposed to the question in the first step of whether objective evidence establishes a condition that could ‘reasonably be expected' to produce such symptoms).” Id. “Second, if it does not, the ALJ must gauge a claimant's credibility regarding the alleged symptoms by reference to the seven factors listed [in 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3)].” Id. (citing Gittens v. Astrue, No. 07 Civ. 1397 (GAY), 2008 WL 2787723, at *5 (S.D.N.Y. June 23, 2008)). If the ALJ does not follow these steps, remand is appropriate. Id. at *15.
When a claimant reports symptoms that are more severe than medical evidence alone would suggest, SSA regulations require the reviewing ALJ to consider specific factors in determining the credibility of the claimant's symptoms and their limiting effects. SSR 96-7p, 1996 WL 374186, at *2 (superseded by SSR 16-3p for cases filed after March 27, 2017). These seven factors include: (1) an individual's daily activities; (2) the location, duration, frequency and intensity of pain or other symptoms; (3) factors that precipitate and aggravate those symptoms; (4) the type, dosage, effectiveness, and side effects of medication that the individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, that the individual receives or has received for pain or other symptoms; (6) measures other than treatment the individual uses or has used to relieve pain or other symptoms; and (7) other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. See Bush, 94 F.3d at 46 n.4.
B. Evaluation of the ALJ's Decision
The ALJ evaluated Plaintiff's claim pursuant to the five-step sequential evaluation process and concluded that until December 2, 2015, she was not disabled within the meaning of the Act. (R. 503-15). The Court finds that the ALJ Decision erroneously discounted evidence of Plaintiff's fibromyalgia at step two as well as in the RFC analysis, and failed to properly weigh the opinion of her treating psychiatrist Dr. Contreras, impacting the determination of the date on which she became disabled. The Court respectfully recommends that these errors require remand, which may result in the development of further evidence concerning her fibromyalgia, and accordingly, the Court does not reach Plaintiff's additional arguments concerning the assessment of her obesity and side effects in the RFC.
1. Fibromyalgia
a. Plaintiff's arguments
Plaintiff argues that the Commissioner erred in not finding her fibromyalgia to be a severe impairment at step two, and in failing to consider the effects of her fibromyalgia in determining her RFC, regardless of whether the Commissioner deemed it a severe or non-severe impairment. (ECF No. 19 at 24-28). Plaintiff argues that the record contains “overwhelming evidence of fibromyalgia, ” with diagnoses of fibromyalgia and treatment for more than twelve months, including with injections and medications. (Id. at 24-25). She cites to the guidelines in Social Security Ruling 12-2p, “Evaluation of Fibromyalgia” (“SSR 12-2p”) and asserts that the medical evidence satisfy their criteria. (Id. at 25-28). She asserts that the fibromyalgia resulted in debilitating pain throughout her body, including to the back, shoulders, neck, knees, hands, and wrists, and fatigue, sleep problems, difficulty concentrating, anxiety and depression, headache and dizziness, which should have been addressed in the RFC determination. (Id. at 25-27).
Finally, Plaintiff argues that the Commissioner inadequately developed the record by failing to contact her treating rheumatologist. (ECF No. 19 at 26). In contrast to the “numerous attempts” to contact her treating psychiatrist, “there was no mention in the [ALJ's] [D]ecision of any attempt to contact [her] treating rheumatologist[, ]” notwithstanding Plaintiff's testimony that she had been treated by a rheumatologist for fibromyalgia since around 2012. (Id. at 26 n. 26); (R.596).
Plaintiff responded “I think 2012, I think[]” when asked when she began treatment with her rheumatologist. (R. 596).
b. Commissioner's arguments
The Commissioner argues that the ALJ's determination that Plaintiff did not have a severe medically determinable impairment of fibromyalgia was supported by substantial evidence and consistent with the guidelines in SSR 12-2p. (ECF No. 28 at 23-27). The Commissioner argues that the medical evidence did not meet the “strict criteria” of SSR 12-2p. (Id.) First, Plaintiff's medical records did not include “[eleven] positive tender points found bilaterally, ” which are “both above and below the waist.” (Id. at 24 n.4 (citing SSR 12-2p, 2012 WL 3104869, at *3)). Second, while conceding that she was diagnosed with fibromyalgia, that diagnosis was insufficient under SSR 12-2p, which mandates also “[e]vidence that other disorders that could cause the symptoms or signs were excluded.” (Id. at 24 (citing SSR 12-2p, 2012 WL 3104869, at *2-3)). Here, she did not undergo a rheumatologic, neurological or orthopedic workup. (Id. at 25). The Commissioner also argues that the ALJ considered the symptoms attributed to fibromyalgia in formulating the RFC, and “implicitly account[ed]” for these symptoms by relying on medical experts who noted the impairment, such as Dr. Falkove. (Id. at 26).
c. Applicable law
The Second Circuit has recognized that “fibromyalgia is a disabling impairment and that ‘there are no objective tests which can conclusively confirm the disease.'” Green-Younger, 335 F.3d at 108 (quoting Preston v. Sec. of Health and Human Servs., 854 F.2d 815, 818 (6th Cir. 1988)) (remanding after finding that the ALJ “did not actually credit” claimant's fibromyalgia diagnosis or “misunderstood its nature, ” and finding that complaints of back, leg, and upper body pain, fatigue and disturbed sleep are consistent with common symptoms of fibromyalgia). “[A]s Judge Posner of the Seventh Circuit explained . . . ‘[fibromyalgia's] cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia.'” Cabibi v. Colvin, 50 F.Supp.3d 213, 233 (E.D.N.Y. 2014) (quoting Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)). Thus, “‘[i]n stark contrast to the unremitting pain of which [fibromyalgia] patients complain, physical examinations will usually yield normal results-a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions.'” Lisa v. Sec'y of Dep't of Health & Human Servs., 940 F.2d 40, 45 (2d Cir. 1991) (quoting Preston, 854 F.2d at 817-18).
The “main symptoms of fibromyalgia ‘are pain all over,' fatigue, disturbed sleep, stiffness, and-the only symptom that discriminates between it and other diseases of a rheumatic character-multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.'” Cabibi, 50 F.Supp.3d at 233 (quoting Sarchet, 78 F.3d at 306).
SSR 12-2p sets forth the criteria for establishing fibromyalgia as a medically determinable impairment: (1) a physician has diagnosed fibromyalgia; (2) the physician has provided evidence described either by the 1990 American College of Rheumatology (“ACR”) Criteria or the 2010 ACR Preliminary Diagnostic Criteria; and (3) the physician's diagnosis is not inconsistent with the other evidence in the record. SSR 12-2p, 2012 WL 3104869, at *2-3; see Casselbury v. Colvin, 90 F.Supp.3d 81, 93 (W.D.N.Y. 2015) (remanding where the ALJ determined fibromyalgia was not a medically determinable impairment notwithstanding a finding of “multiple trigger points in more than 11 out of 18 points, ” where treatment notes indicated pain consistent with the common symptoms of fibromyalgia and two physicians diagnosed or assessed as likely fibromyalgia). SSR 12-2p provides that if there is not sufficient evidence to determine if the claimant has a medically determinable impairment of fibromyalgia, the ALJ may recontact the treating or other source to see if additional information is available and may request additional records. 2012 WL 3104869, at *4.
Under the 1990 ACR Criteria, the claimant must establish all three of the following: (1) “A history of widespread pain, that is, pain in all quadrants of the body” and “axial skeletal pain” that has persisted for at least three months (although it may not always be present); (2) at least eleven positive tender points found bilaterally and above and below the waist; and (3) evidence that other disorders that could cause the symptoms or signs were excluded. 2012 WL 3104869, at *2-3.
Under the 2010 ACR Preliminary Diagnostic Criteria, the claimant must establish all three of the following: (1) a history of widespread pain; (2) “[r]epeated manifestations of six or more [fibromyalgia] symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems (“fibro fog”), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome;” and (3) evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded. 2012 WL 3104869, at *3.
SSR 12-2p also sets forth guidance for an ALJ's RFC determination relating to fibromyalgia. In making the RFC determination, the ALJ shall consider the effects of all of the claimant's medically determinable impairments, including impairments that are not severe. 2012 WL 3104869, at *6. With regard to fibromyalgia, the ALJ should “consider a longitudinal record whenever possible because the symptoms of [fibromyalgia] can wax and wane so that a person may have ‘bad days and good days.'” (Id.) In particular, SSR 12-2p directs that the ALJ consider the “[w]idespread pain and other symptoms associated with [fibromyalgia], such as fatigue, [which] may result in exertional limitations . . . [as well as] nonexertional physical or mental limitations . . .” (Id.)
d. Analysis
The Court finds that the ALJ erroneously focused on the lack of objective findings to determine that fibromyalgia was not a medically determinable impairment. In doing so, the ALJ disregarded evidence of Plaintiff's trigger points, symptoms, pain, and treatment that are the hallmarks of fibromyalgia, as well as repeated diagnoses of fibromyalgia. Moreover, although the ALJ relied upon, and accorded “significant weight” to an expert who acknowledged that she had fibromyalgia, (R. 511), the RFC analysis did not account for the persistent and widespread resulting pain or other fibromyalgia-related symptoms that she experienced. In light of these errors, the Court finds that the ALJ's Decision, which excluded fibromyalgia as a severe impairment at step two, and from the RFC analysis, was not supported by substantial evidence.
i. Fibromyalgia as a medically determinable impairment
Plaintiff's medical records are replete with references to her tender points, chronic pain symptoms and her history of fibromyalgia. Among them, on August 14, 2013, doctors documented physical findings of “at least [eleven] ¶ 18 tender points” with widespread pain “occurring both above and below the waist and affecting both the right and left sides of the body, ” which was “without a clear organic etiology.” (R. 1353). This finding of eleven tender points is one of the “main symptoms of fibromyalgia . . . ‘and [] the only symptom that discriminates between it and other diseases of a rheumatic character[.]” Cabibi, 50 F.Supp.3d at 233 (quoting Sarchet, 78 F.3d at 306).
On September 10, 2013, Plaintiff reported significant sleep disturbances and doctors performed surgery to implant a peripheral nerve stimulator to address “chronic pain related to fibromyalgia.” (R. 1339-41). Medical records from April 17, 2014 note that she had fibromyalgia “diagnosed by rheumatology” and documented trigger points to the bilateral trapezius and tenderness over the C7 spine. (R. 1314).
Peripheral nerve stimulators send “mild electrical currents directly to nerves outside of the spinal cord[]” to address chronic pain. See Peripheral Nerve Stimulation, Mount Sinai, https://www.mountsinai.org/locations/center-neuromodulation/what-is/peripheral-nerve-stimulation (last visited June 16, 2021).
On June 19, 2014, Plaintiff reported that she stopped working because of the pain, and doctors documented that “multiple points over the back” were tender to palpation, including the bilateral supraspinatus, the mid/low thoracic midline and paraspinal area. (R. 1307-09). She was diagnosed with fibromyalgia, which was noted to be “refractory to medications, [physical therapy] and acupuncture[, ]” and her medication dosage was increased. (R. 1309).
On August 20, 2014, Plaintiff described that a new pain across her lower back extending to the front of her trunk which was not attributed to any history of trauma but was aggravated by walking. (R. 1279). She also explained that her pain worsened at night and severely impacted her sleep. (Id.)
On December 17, 2014, Plaintiff was found to have “multiple trigger points, ” with tender points over the C spine and upper trapezius bilaterally, with associated right hand pain and numbness. (R. 1048-49). She received injections to the trigger points of the neck and shoulders. (R. 1045-49, 1110). On November 11, 2015, doctors assessed fibromyalgia and documented multiple tender points to the bilateral c-spine paraspinal muscles, upper trapezius, shoulders/arms, thighs and medial knees. (R. 1109-1111). She reported generalized body pain persisting “for about [four] years, including [to the] bilateral shoulders, neck, upper and lower back, bilateral hands and knees[]” which was not remedied by trigger point injections. (R. 1112). Plaintiff described at the October 16, 2018 hearing that she felt “[p]ain all over my body all the time, extreme pain.” (R. 571). The symptoms of pain documented in the medical record and elaborated upon at the hearing are “typical symptoms of fibromyalgia, ” as are fatigue and disturbed sleep. Casselbury, 90 F.Supp.3d at 94 (remanding where the ALJ found fibromyalgia was not a medically determinable impairment where claimant had at least eleven tender points and pain symptoms and testing ruled out causes for fatigue and disturbed sleep) (citing Green-Younger, 335 F.3d at 108).
In the course of her treatment, Plaintiff was prescribed (among other medications, including Gabapentin, Amitryptiline and Tramadol), Cymbalta, “which [is] specifically used to treat fibromyalgia[.]” Lim v. Colvin, 243 F.Supp.3d 307, 315, 317 (E.D.N.Y. 2017) (remanding where the ALJ did not credit physicians who treated claimant's fibromyalgia, noted sufficient tender points, and prescribed medications, and credited instead a non-examining expert who relied on “objective and physical examinations”). (See R. 1053-54, 1321, 1279).
In determining that fibromyalgia was not a medically determinable impairment, the ALJ failed to consider that Plaintiff's symptoms also satisfied the 2010 ACR Preliminary Diagnostic Criteria of “[r]epeated manifestations of six or more [fibromyalgia] symptoms, signs, or co-occurring conditions, ” and include documented muscle pain, fatigue or tiredness, headache, numbness or tingling, dizziness, insomnia, depression, anxiety disorder, gastroesophageal reflux disorder (“GERD”) and migraine. SSR 12-2p, 2012 WL 3104869, at *3, nn. 9-10; (see R. 387-89, 415, 417-19, 426-29, 460, 1045-49, 1053, 1064-67, 1071-72, 1109-1114, 1149, 1154, 1279, 1307-1314, 1339-41, 1351-53).
The ALJ's second ground for excluding fibromyalgia as a severe impairment-that there was no “real opinion” (R. 508) ruling out other potential causes of Plaintiff's complaints-both on its face requires a higher degree of proof than the 1990 ACR Criteria for the Classification of Fibromyalgia and the 2010 ACR Preliminary Diagnostic Criteria, and is inconsistent with the medical evidence. Both require “evidence” that other disorders were excluded. 2012 WL 3104869, at *2-3 (emphasis added). Here, there was. On December 17, 2014, Dr. Sikha Guha noted “right hand pain and numbness seems referral from trigger points of her right elbow, ” and EMG testing was negative for carpal tunnel syndrome. (R. 1048). Dr. Guha diagnosed fibromyalgia, bilateral. (Id.)
Moreover, in light of the abundant record evidence showing that Plaintiff had fibromyalgia-including numerous medical diagnoses-if there was uncertainty about whether this evidence met the fibromyalgia criteria, the ALJ had a duty to further develop the record. SSR 12-2p, 2012 WL 3104869, at *4; see Heineck-Polizzi v. Commissioner, No. 1:18-CV-01445 (EAW), 2020 WL 1284017, at *5-6 (W.D.N.Y. March 18, 2020) (remanding for further proceedings where the ALJ provided only a conclusory statement that claimant's fibromyalgia did not meet the SSR 12-2p requirements, while recognizing that the record lacked necessary evidence for the ACR fibromyalgia criteria); Villar v. Commissioner, No. 19-CV-144 (FPG), 2020 WL 1131225, at *3-4 (W.D.N.Y. March 9, 2020) (remanding as the ALJ should have sought clarification regarding whether claimant's trigger points established the fibromyalgia criteria at step two).
That Plaintiff had fibromyalgia was in fact corroborated by the experts on whom the ALJ relied. First, internist Dr. Long, who was accorded “moderate weight” by ALJ Weiss, herself diagnosed Plaintiff with fibromyalgia following her October 14, 2015 examination. (R. 511, 1079- 1083). Underlying Dr. Long's diagnosis, she noted “fibromyalgia areas, ” including the “neck, shoulders, lower back, knees, hands, and wrists that coincides with occiput, trapezius, supraspinatus, gluteal, and knees[]” and found ten trigger points. (R. 1082).
Dr. Falkove, whose medical opinion the ALJ accorded “significant weight, ” was equally unequivocal. (R. 511). While noting the absence of a “hard diagnosis” of fibromyalgia, he conceded, “I'm not disputing the fact that the lady has fibromyalgia, don't get me wrong.” (R. 581-83).
Finally, the ALJ erred by relying on Dr. Falkove's ultimate conclusion that Plaintiff was capable of working, predicated on the lack of objective findings and the absence of “extensive workups” to support a diagnosis of fibromyalgia, notwithstanding that Dr. Falkove acknowledged Plaintiff had fibromyalgia and noted the presence of “a whole bunch of muscle tenderness here and there and everywhere else.” (R. 579, 582-83). Plaintiff's documented trigger points, in conjunction with her other characteristic symptoms supported the fibromyalgia diagnoses, which were supported by substantial evidence, notwithstanding unremarkable test findings. See Gang v. Barnhart, No. 02 Civ. 3647 (FB), 2003 WL 22183423, at *6-7 (E.D.N.Y. Sept. 23, 2003) (remanding for the calculation of benefits where claimant had trigger points and substantial fibromyalgia symptoms, in spite of unremarkable neurological tests and consulting expert testimony disputing the fibromyalgia diagnosis and degree of impairment). The finding by a consulting physician, who did not examine Plaintiff, and predicated his assessment on normal testing, was not substantial evidence. Green-Younger, 335 F.3d at 107-08; Lim, 243 F.Supp.3d at 313-15, 317 (remanding where ALJ adopted the findings of a consulting expert who acknowledged claimant's pain but found physical examinations “pretty normal” over the findings of claimant's treating pain management specialists). (See R. 577).
For these reasons, the Court finds that the ALJ's step two analysis concerning fibromyalgia was not supported by substantial evidence.
ii. RFC determination
Although the VE's testimony, on which the ALJ relied in his RFC analysis, encompassed the effects of many potential limitations on Plaintiff's RFC, it did not account for the widespread pain and other limitations associated with fibromyalgia, nor did the ALJ Decision. See R. 509-12, 539-52. This was error and contrary to SSR 12-2p. See 2012 WL 3104869, at *6.
In finding that Plaintiff had the RFC to perform light work with specified exertional and non-exertional limitations (listed fully at n.5 supra), including a sit-stand option, low stress, and limited public contact, the ALJ did not “consider the effects of all of the person's medically determinable impairments, ” including, notably, the “[w]idespread pain and other symptoms associated with [fibromyalgia], such as fatigue” that result in exertional limitations or in non-exertional resulting physical or mental limitations. 2012 WL 3104869, at *6; see Lim, 243 F.Supp.3d at 317-18 (directing the ALJ on remand to more fully develop the record concerning fibromyalgia claimant's mental limitations including “brain fog” caused by pain medications “which are a non-exertional limitation relevant to [her] capacity to return to work[.]”); Casselbury, 90 F.Supp.3d at 96-97 (noting that if the ALJ finds on remand that fibromyalgia was a medically determinable impairment that impacts the RFC, associated pain would potentially impact her ability to work).
* * *
Accordingly, the Court finds that the ALJ erroneously discounted Plaintiff's fibromyalgia at step two and in the RFC analysis, and respectfully recommends that remand is warranted.
2. Weight of the medical opinion evidence
a. Plaintiff's arguments
Plaintiff argues that Dr. Contreras was her treating psychiatrist and the ALJ improperly afforded her opinion concerning her limitations “little weight.” (ECF No. 19 at 30-34). Had the ALJ properly followed the treating physician rule, and accorded controlling weight to Dr. Contreras' opinion, she contends, the ALJ would have found her disabled at least as of the date of Dr. Contreras' Medical Source Statement, August 29, 2013, rather than December 2, 2015. (Id. at 32). Plaintiff argues that Dr. Contreras' opinion was well-supported, being predicated on monthly treatment for several years. (ECF No. 19 at 32-33). On the basis of this treating relationship, Dr. Contreras diagnosed her with major depression, and noted “marked loss[es]” persisting since August 2013 in numerous categories bearing on her ability to work. (R. 1143- 47). Dr. Contreras opined that she would be absent from work more than three times monthly due to her condition. (R. 1144). Plaintiff argues that the ALJ erred in determining that her psychiatric impairment only rendered her disabled in December 2015, and notes that the ALJ's Decision is unclear as to the basis for determining that she met a Listing no earlier than December 2, 2015. (ECF No. 19 at 33-34). Plaintiff argues that Dr. Contreras' diagnosis was consistent with the medical opinions of Dr. Foote, Dr. Efobi, and Dr. Mahony. (Id.) Plaintiff characterizes as “contradictory” ALJ Weiss' determination that medical records before December 2015 do not support a marked level of reduced functioning, where ALJ Weiss also wrote that he could not determine what Dr. Contreras' opinion was based upon given a three-year gap in records from 2013 to 2016. (ECF No. 19 at 34 (citing R. 511)). Relatedly, Plaintiff argues that the RFC analysis, which found Plaintiff capable of employment prior to December 2015 in “simple, repetitive, and routine work with only occasional decision-making and location changes, and occasional contact with the public and other employees[]” tacitly recognized her psychiatric limitations. (Id. at 34).
Marked losses are noted in, among other categories, Plaintiff's ability to maintain regular attendance, sustain an ordinary routine without special supervision, complete a normal workday without interruptions from psychological symptoms, maintain socially appropriate behavior, and interact appropriately with the public. (R. 1145-46). This Medical Source Statement also notes marked limitations in Plaintiff's restrictions of activities of daily living and difficulties in maintaining social functioning. (R. 1146).
b. Commissioner's arguments
The Commissioner responds that the ALJ properly evaluated the psychiatric evidence, and substantial evidence supports the conclusion that Plaintiff's psychiatric impairments were not disabling prior to December 2, 2015. (ECF No. 28 at 27-32). The Commissioner acknowledges that the ALJ did not apply the Burgess factors in evaluating Dr. Contreras' opinion, but argues that the ALJ's decision “reflects the substance of the treating physician rule” and was supported by substantial evidence. (Id. at 28). The Commissioner argues that Dr. Contreras' opinion was not afforded controlling weight “due to its lack of support and inconsistency with other substantial evidence.” (Id.)
First, the Commissioner identifies treatment records during the period at issue that ALJ Weiss recognized “‘simply do not reflect' the ‘level of reduced functioning' assessed by Dr. Contreras.” (ECF No. 28 at 28 (quoting R. 511)). Second, the Commissioner argues that the ALJ appropriately resolved conflicts in the evidence, noting “largely unremarkable” Mental Status Examinations (“MSEs”) and Patient Health Questionnaire screenings (“PHQ-2”) and functional assessments by Dr. Mahony and Dr. Efobi that conflicted with Dr. Contreras' opinion. (Id. at 29). In particular, contrary to Plaintiff's suggestion that Dr. Contreras' opinion was consistent with that of Drs. Efobi and Foote, Dr. Efobi opined that the psychiatric impairment did not become severe until late 2015 or 2016, and Dr. Foote noted that the restrictions did not extend to the beginning of the relevant period. (Id. (citing R. 533, 1563)).
The PHQ-2 is a questionnaire that “inquires about the degree to which an individual has experienced depressed mood and anhedonia over the past two weeks. Its purpose is not to establish final diagnosis or to monitor depression severity, but rather to screen for depression.” Patient Health Questionnaire (PHQ-9 & PHQ-2), Am. Psych. Ass'n (updated June 2020), https://www.apa.org/pi/about/publications/caregivers/practice-settings/assessment/tools/patient-health.
Taking into account all of the psychiatric evidence, the Commissioner argues that the ALJ reasonably concluded that prior to December 2015, Plaintiff had the RFC to perform a limited range of simple work. (Id. at 30-32).
c. Analysis
The treating physician rule applies because Plaintiff's claims, both the 2012 Claim and the 2015 Claim, were filed before it was abolished on March 27, 2017. Dorta, 2020 WL 6269833, at *3 n.8. (See n.8, supra). It is undisputed that Dr. Contreras was Plaintiff's treating psychiatrist (see ECF No. 28 at 27-30), and so in deciding to give less than controlling weight to Dr. Contreras' opinions, the ALJ was required to explicitly consider the Burgess factors. Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019).
As the Commissioner concedes, the ALJ failed to explicitly consider the six Burgess factors. (ECF No. 28 at 28). “[T]he ‘failure to explicitly apply the Burgess factors when assigning weight at step two is a procedural error,' and unless the ALJ has ‘otherwise provided good reasons for its weight assignment, [the Court will be] unable to conclude that the error was harmless and [will] consequently remand for the ALJ to comprehensively set forth its reasons.'” Ferraro v. Saul, 806 Fed.Appx. 13, 14-15 (2d Cir. 2020) (summary order) (quoting Estrella, 925 F.3d at 95-96)).
The Court cannot conclude the Commissioner's error was harmless or that the ALJ gave good reasons for the weight assignment. Dr. Contreras' assessment that Plaintiff's impairment since August 29, 2013 would have resulted in her absence from work more than three times per month would have precluded her from obtaining and maintaining employment under the VE's testimony from August 29, 2013 onward. (R. 1143-47, 549).
In addition, ALJ Weiss did not explicitly consider “the frequency, length, nature and extent of treatment, ” which was significant given Dr. Contreras' multi-year treating relationship with Plaintiff, which involved regular appointments, particularly given the mental health context. See Ferraro, 806 Fed.Appx. at 15 (“merely acknowledging the existence of treating relationships is not the same as explicitly considering [this factor]”); Newell v. Saul, No. 19 Civ. 10831 (JLC), 2021 WL 608991, at *18 (S.D.N.Y. Feb. 17, 2021) (“the length of a psychiatrist's treatment relationship with his [] patient is of particular importance because mental disabilities are best diagnosed and observed over time.”).
The ALJ also erred by not explicitly acknowledging Dr. Contreras' professional specialization. The passing reference to Dr. Contreras as a psychiatrist “fall[s] short of meeting his obligation to explicitly consider this Burgess factor.” Newell, 2021 WL 608991, at *19 (collecting cases and finding a violation of the treating physician rule).
Although, as ALJ Weiss noted, the SSA was unable to obtain all of Dr. Contreras' medical records, the extent of the relationship and a basis for Dr. Contreras' opinion is evident from those in the record: the February 2, 2017 Medical Source Statement notes monthly to bimonthly treatment since August 29, 2013, and the record also includes treatment records from six of these appointments, in 2013, 2014, 2016, and 2017. (R. 1143-62). These records indicate that, underlying Dr. Contreras' opinion, she managed Plaintiff's medications, documented her mental status, and provided individual psychiatric care and supportive therapy. (Id.) Although treatment notations are limited, Dr. Contreras' August 29, 2013 initial intake evaluation documented that Plaintiff was a victim of sexual abuse from a “very young age until age [twelve]” perpetrated by two male family members and that she felt her mother was aware of the abuse but did not assist her. (R. 1161). Dr. Contreras' records document that Plaintiff attempted suicide when she was fourteen, and had a history of living in shelters. (Id.)
The ALJ's reliance on Drs. Mahoney and Efobi, consultative medical experts, does not provide a good reason for diminishing Dr. Contreras' opinion about the degree of Plaintiff's limitations. In the context of mental illness, “a one-time snapshot of a claimant's status may not be indicative of her longitudinal mental health.” Estrella, 925 F.3d at 98. This error is magnified because, as even ALJ Weiss recognized, Dr. Efobi's testimony was “a little vague as to when the listing began to be met, ” (R. 514), with Dr. Efobi's testimony suggesting that Plaintiff's depressive disorder and anxiety disorder became severe at either October 14, 2015 or 2016. (R. 528, 531). Dr. Efobi also conceded on cross examination that Plaintiff's mental health symptoms resulting from trauma and sexual abuse as a child have “mostly” been present throughout the medical record. (R. 535).
Although Dr. Foote began treating Plaintiff in 2018-a later time period than Dr. Contreras-he too opined that her mental impairments would cause her to be absent from work more than three times per month and documented marked limitations in restriction of activities of daily living, difficulties in maintaining social functioning and deficiencies of concentration, persistence or pace resulting in a failure to timely complete tasks. (R. 1560-63, 1143-47).
Thus, the ALJ failed to apply the proper standard in evaluating Dr. Contreras' testimony. The ALJ's decision to accord only “little weight” to Dr. Contreras' opinion concerning Plaintiff's psychiatric limitations was unsupported by the evidence and necessitates remand.
3. Determination of Plaintiff's RFC
Because the Court has already recommended, for the reasons discussed above, that remand for further evidentiary proceedings is necessary, the Court need not reach this issue. See Morales v. Colvin, No. 13 Civ. 6844 (LGS) (DF), 2015 WL 13774790, at *23 (S.D.N.Y. Feb. 10, 2015) (not reaching additional arguments regarding the ALJ's factual determinations “given that the ALJ's analysis may change on these points upon remand”), adopted at, 2015 WL 2137776 (S.D.N.Y. May 4, 2015); Ewen v. Saul, No. 19 Civ. 9394 (SLC), 2021 WL 1143288, at *17 (S.D.N.Y. Mar. 23, 2021) (following Morales). On remand, the RFC analysis may change based on further development of the record. The Court notes however, that on remand the Commissioner should consider the side effects of Plaintiff's medications. See 20 C.F.R. §§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv); SSR 16-3p, 2017 WL 5180304, at *7-8; Lim, 243 F.Supp.3d at 317-18 (finding the record inadequately developed where hypotheticals presented to the VE did not account for side effects caused by pain medications including memory loss and “brain fog”).
IV. CONCLUSION
For the reasons set forth above, I respectfully recommend that Plaintiff's Motion (ECF No. 18) be GRANTED and that the Commissioner's Motion (ECF No. 24) be DENIED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Nathan.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).