Opinion
1:23-cv-08577-JGK-GRJ
07-02-2024
RONALD P., Plaintiff, v. COMMISSIONER OF SOCIAL security, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES UNITED STATES MAGISTRATE JUDGE
In October of 2015, Plaintiff Ronald P.applied for Disability Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the application. Plaintiff, represented by the Law Office of Christopher James Bowes, Christopher James Bowes, Esq., of counsel, commenced this action seeking judicial review of the Commissioner's denial of benefits under 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
Plaintiff's name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
This case was referred to the undersigned for a Report and Recommendation on June 12, 2024. Presently pending is the Commissioner's motion to remand for further administrative proceedings. (Docket No. 13). For the following reasons, it is recommended that the Commissioner's motion should be granted, and this matter should be remanded for further proceedings.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on October 9, 2015, alleging disability beginning July 24, 2014. (T at 501-02, 548).Plaintiff's application was denied initially and on reconsideration. He requested a hearing before an Administrative Law Judge (“ALJ”).
Citations to “T” refer to the administrative record transcript at Docket No. 6.
A hearing was held on October 6, 2017, before ALJ Katherine Edgell. (T at 128-48). On December 26, 2017, ALJ Edgell issued a decision denying the application for benefits. (T at 158-73). On November 1, 2018, the Social Security Appeals Council vacated ALJ Edgell's decision and remanded the case for further proceedings. (T at 174-78).
Plaintiff appeared for a second administrative hearing on October 30, 2019, before ALJ Laura Olszewski. (T at 95-127). On January 29, 2020, ALJ Olszewski issued a decision denying the application for benefits. (T at 179-201). The Appeals Council vacated ALJ Olszewski's decision and remanded the matter again on September 23, 2020. (T at 202).
Plaintiff appeared for a third administrative hearing on January 31, 2021, with ALJ Olszewski presiding. (T at 63-94). On February 3, 2021, ALJ Olszewski issued a decision denying, in part, Plaintiff's application for benefits, but finding Plaintiff disabled as of July 30, 2020, and awarding benefits as of that date. (T at 208-39).
On February 25, 2022, the Appeals Council affirmed ALJ Olszewski's second decision to the extent it found Plaintiff disabled as of July 30, 2020, but vacated the denial of benefits for the period prior to that and remanded the matter for further proceedings. (T at 243-48).
A fourth administrative hearing was held on June 13, 2022, before ALJ Vincent Cascio. (T at 44-62). Plaintiff appeared with an attorney and testified. (T at 50-55). The ALJ also received testimony from Dale Pasculli, a vocational expert. (T at 55-61).
B. ALJ's Decision
ALJ Cascio issued a written decision on July 13, 2022. (T at 7-38). He found that Plaintiff had not engaged in substantial gainful activity since July 24, 2014 (the alleged onset date) and met the insured status requirements of the Social Security Act through December 31, 2020 (the date last insured). (T at 14).
The ALJ concluded that Plaintiff's degenerative disc disease of the cervical spine; ulnar nerve entrapment; obesity, asthma, migraines, degenerative joint disease, coronary artery disease, degenerative disc disease of cervical spine with radiculopathy, lumbar spine degenerative disc disease, cubital tunnel syndrome, and obstructive sleep apnea were severe impairments as defined under the Social Security Act. (T at 14).
However, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 403, Subpart P, Appendix 1. (T at 15).
At step four of the sequential analysis the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform light work, as defined in 20 CFR 404.1567 (b), with the following limitations: he can only occasionally climb stairs and ramps; cannot climb ladders, ropes, or scaffolds; occasionally stoop and crouch; never kneel and crawl; must avoid unprotected heights and hazardous machinery; can occasionally reach, including overhead reaching with the bilateral upper extremities; can occasionally finger with the left hand, but frequently finger with the right hand; can frequently rotate and flex the neck; and can have only occasional exposure to respiratory irritants such as dust, odors, fumes and gases, as well as to extreme temperatures. (T at 18).
The ALJ concluded that Plaintiff could not perform his past relevant work as a firefighter. (T at 24). However, considering Plaintiff's age (48 on the alleged onset date; 55 as of July 31, 2020), education (at least high school), work experience, and RFC, the ALJ determined that, prior to July 30, 2020, there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed. (T at 25-26).
The ALJ concluded that as of July 30, 2020, when Plaintiff's age category changed, there were no jobs that existed in significant numbers in the national economy that Plaintiff could perform. (T at 26).
As such, the ALJ found that Plaintiff had not been under a disability, as defined under the Social Security Act, and was not entitled to benefits for the period between July 24, 2014 (the alleged onset date) and July 30, 2020, but became disabled (and has continued to be disabled) as of the latter date. (T at 26-27).
On July 26, 2023, the Appeals Council denied Plaintiff's request for review, making ALJ Cascio's decision the Commissioner's final decision. (T at 1-56).
C. Procedural History
Plaintiff commenced this action by filing a Complaint on September 28, 2023. (Docket No. 1). Plaintiff filed a brief requesting a remand for calculation of benefits on January 31, 2024. (Docket No. 12). The Commissioner filed a motion requesting a remand for further administrative proceedings, supported by a memorandum of law, on March 27, 2024.
(Docket No. 13). The matter was assigned to the undersigned for a Report and Recommendation on June 12, 2024.
II. APPLICABLE LAW
A. Standard of Review
“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). The court's review is limited to “determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings, which are considered conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted).
“When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or when the ALJ's rationale is unclear, remand “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. Five-Step Sequential Evaluation Process
Under the Social Security Act, a claimant is disabled if he or she lacks the ability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months ....” 42 U.S.C. § 423(d)(1)(A).
A claimant's eligibility for disability benefits is evaluated pursuant to a five-step sequential analysis:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. See Rolon v. Commissioner of Soc. Sec., 994 F.Supp.2d 496, 503 (S.D.N.Y. 2014); see also 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
The claimant bears the burden of proof as to the first four steps; the burden shifts to the Commissioner at step five. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner determines whether the claimant can perform work that exists in significant numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).
III. DISCUSSION
Plaintiff raises three primary arguments in support of his challenge to the ALJ's decision. First, he contends that the ALJ failed to adequately review the medical opinion evidence, including an assessment from Dr. Kevin Weiner, his treating physician. Second, Plaintiff asserts that the ALJ's RFC determination is internally inconsistent and not supported by substantial evidence. Third, Plaintiff argues that the vocational expert's testimony, which the ALJ relied on at step five of his analysis, was flawed. As explained below because the Plaintiff and the Commissioner agree that the ALJ applied the wrong legal standard in assessing the opinion of Plaintiff's treating physician the only issue the Court must resolve is whether the case should be remanded for calculation of benefits or remanded for further administrative proceedings.
In September of 2017, Dr. Weiner completed a functional assessment in which he opined that Plaintiff was limited to less than 2 hours of standing and walking in an 8 hour work day; could not sit more than 2 hours in an 8 hour period; should lift no more than 5 pounds occasionally and less than that frequently; was limited to occasional reaching, handling, and fingering with the left upper extremity; required a sit/stand opinion; and would need to take frequent breaks throughout the workday. (T at 827-28).
In January of 2017, the Social Security Administration promulgated new regulations regarding the consideration of medical opinion evidence. The revised regulations apply to claims filed on or after March 27, 2017. See 20 C.F.R. § 404.1520c.
Because Plaintiff applied for benefits before March 27, 2017, the new regulations do not apply to his application and the ALJ should have followed the former standard, commonly known as the “treating physician's rule.”
Under the treating physician's rule, an opinion from a treating physician is afforded controlling weight as to the nature and severity of an impairment, provided the opinion “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2); 416.927(d)(2); See Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019)(following Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)).
Rather than following the treating physician's rule, the ALJ erroneously applied the new regulations when addressing the medical opinion evidence, including Dr. Weiner's assessment (T at 23-24).
The Commissioner concedes that the ALJ applied the wrong legal standard in weighing Dr. Weiner's opinion and admits that the ALJ's decision cannot be sustained even under the deferential standard of review applicable here.
The parties therefore agree that a remand is necessary but differ as to which type of remand should be ordered.
A court reviewing a denial of benefits may, in its discretion, remand a claim (a) for further proceedings or (b) solely for the calculation of benefits. 42 U.S.C. § 405(g) (sentence four) (a reviewing court may enter, upon the pleadings and the administrative record, “a judgment affirming, modifying, or reversing the decision of the Commissioner ... with or without remanding the cause for a rehearing”).
On the one hand, where the record is complete and contains persuasive proof of disability, “no purpose would be served” by additional administrative proceedings and remand for calculation of benefits is warranted. Curry v. Apfel, 209 F.3d 117, 124 (2d Cir.2000).
In contrast, remand for further administrative proceedings is the appropriate remedy “[w]here there are gaps in the administrative record or the ALJ has applied an improper legal standard.” Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999); see also Rhone v. Colvin, No. 13-CV-5766 (CM)(RLE), 2014 U.S. Dist. LEXIS 180514, at *28 (S.D.N.Y. Nov. 6, 2014).
Plaintiff applied for benefits more than eight (8) years ago and has appeared at four (4) hearings before three (3) ALJs.
This is understandably frustrating (to say the least) and represents a failure of the system for adjudicating applications, which should timely deliver benefits to those entitled to receive them and provide finality to those determined to be ineligible.
Nonetheless, “absent a finding that the claimant was actually disabled, delay alone is an insufficient basis on which to remand for benefits.” Bush v. Shalala, 94 F.3d 40, 46 (2d Cir.1996); see also Gross v. McMahon, 473 F.Supp.2d 384, 386 (W.D.N.Y. 2007); Batista v. Comm'r of Soc. Sec., No. 3:19 CV 1660 (RMS), 2020 WL 6709096, at *5 (D. Conn. Nov. 16, 2020).
Importantly, “[r]emanding ‘solely for the calculation of benefits is an extraordinary action and is proper only when further development of the record would serve no purpose.'” Lynch v. O'Malley, No. 22-CIV-5620-(CS)(AEK), 2024 WL 728483, at *7 (S.D.N.Y. Feb. 21, 2024)(quoting Rivera v. Barnhart, 423 F.Supp.2d 271, 279 (S.D.N.Y. 2006)).
In a case, as here, where there is conflicting medical evidence, a remand for calculation of benefits is not appropriate, notwithstanding the appropriate frustration of the claimant (or, indeed, the court) with undue delay and/or repeated failures to follow the law and apply the regulations. See Newell v. Saul, No. 19-cv-10831 (JLC), 2021 WL 608991, at *23 (S.D.N.Y. Feb. 7, 2021); Lloyd v. Comm'r of Soc. Sec., 335 F.Supp.3d 472, 481 (W.D.N.Y. 2018).
In the present case because there is conflicting evidence the Court cannot conclude that a remand for further proceedings would inevitably lead to a determination of disability.
Notably, as the ALJ discussed, although the treatment notes from the period at issue document consistent complaints and limitations, Plaintiff was also generally reported to have experienced improvement with medication and demonstrated normal gait, full motor strength, intact sensation, full range of motion in the cervical and lumbar regions, and normal range of motion in his hips, knees, and ankles bilaterally. (T at 2021, 762, 802, 840, 850-51, 932-33, 1033, 1055).
In addition, two consultative examiners provided assessments less restrictive than the limitations identified by Dr. Weiner and arguably consistent with a range of light work.
In December of 2015, Dr. Vijaya Deshpande performed a consultative examination and opined that Plaintiff had mild limitation with respect to walking, sitting, standing, pushing, pulling, climbing, and bending; moderate limitations in lifting and carrying objects; and moderate limitation with reaching on the left side. (T at 763).
In January of 2019, Dr. David Mackinnon performed a consultative examination and assessed moderate limitation in Plaintiff's use of the upper extremities for physical tasks, rotational movements of the head, lifting, and pushing, pulling, or carrying. (T at 933).
The Court expresses no view as to what weight should be afforded to the various medical opinions, including what weight should be given to Dr. Weiner's assessment under the treating physician's rule, and/or how best to read the record. Such conflicts are for the Commissioner. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”).
In sum, because the question of whether Plaintiff was disabled during the relevant period is not conclusively resolved by the record, the Court recommends a remand for further proceedings, as opposed to a remand for calculation of benefits.
Plaintiff's challenges to the RFC determination and step five analysis will necessarily need to be revisited after the medical opinion evidence has been properly weighed and Plaintiff's RFC has been reassessed in light of the same.
However, given the length of time Plaintiff's application has been pending and the numerous previous proceedings below, the Court also recommends that the Commissioner be directed to use his best efforts to complete any further proceedings before the ALJ within 120 days of the date of the Court's decision. Further, if the decision is a denial of benefits, then a final decision should be required within 60 days of any appeal by Plaintiff. See Martinez v. Saul, No. 19-CV-6515 (BCM), 2021 WL 2588783, at *11 (S.D.N.Y. June 23, 2021).
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Commissioner's motion to remand (Docket No. 13) should be GRANTED, and this case should be remanded for further proceedings under sentence four of section 405 (g) of the Social Security Act, subject to the deadlines recommended above.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).