Opinion
18 Civ. 7918 (PED)
08-26-2019
RACHEL ROWLAND, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
DECISION AND ORDER
PAUL E. DAVISON, U.S.M.J.
Pro se plaintiff Rachel Rowland brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c) seeking judicial review of a final determination of the Commissioner of Social Security (the "Commissioner") denying her application for disability benefits. This case is before me for all purposes on the consent of the parties, pursuant to 28 U.S.C. § 636(c) (Dkt. #11). On April 5, 2019, the Commissioner filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. #15 (motion), #16 (memorandum of law in support)). Plaintiff's time to respond expired without response. In recognition of her pro se status, I issued an Order on July 22, 2019 (Dkt. #18) granting plaintiff an additional thirty days, until August 21, 2019, to file any opposition and advising her that if she did not oppose defendant's motion, the Court would decide the motion based solely on defendant's submissions. To date, plaintiff has not filed any opposition, nor has she contacted my chambers in any fashion. Nonetheless, for the reasons set forth below, defendant's motion is DENIED and the case REMANDED pursuant to 42 U.S.C. § 405(g), sentence four, for further administrative proceedings.
Plaintiff alleges entitlement to two types of disability-related benefits under the Social Security Act: Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Because the definition of "disabled" governing eligibility is the same for DIB and SSI, the term "disability benefits" refers to both. See Paredes v. Comm'r of Soc. Sec., No. 16 Civ. 810, 2017 WL 2210865, at *1 n.1 (S.D.N.Y. May 19, 2017); 42 U.S.C. §§ 423(d), 1382c(a)(3).
Copies of all unpublished opinions and decisions available only in electronic form cited herein have been mailed to plaintiff. See Lebron v. Sanders, 557 F.3d 76, 78 (2d Cir. 2009).
I. BACKGROUND
The following facts are taken from the administrative record ("R") of the Social Security Administration, filed by defendant on February 4, 2019 (Dkt. #13). A. Application History
Plaintiff, born April 10, 1972, worked as a bartender from 2000 through September 2013. R. 241, 267, 399. Plaintiff filed her initial claim for disability benefits on October 28, 2014, alleging that she had been disabled since October 1, 2013 due to a variety of back problems. R. 267. Her claim was administratively denied on or about February 4, 2015. R. 282-87. Plaintiff requested a hearing before an administrative law judge ("ALJ"); a hearing was held on February 24, 2017 before ALJ Mark Solomon. R. 235-51. Plaintiff appeared without counsel (or other representative) and testified at the hearing. R. 237-38, 241-50. The ALJ noted that he was missing medical records for more than two years and informed plaintiff that he would obtain those records and hold another hearing. R. 239-40, 250. On June 6, 2017, plaintiff appeared without counsel (or other representative) and testified at the supplemental hearing. R. 252-66. On September 15, 2017, the ALJ issued a written decision in which he concluded that plaintiff was not disabled within the meaning of the Social Security Act ("SSA"). R. 184-91. The ALJ's decision became the final order of the Commissioner on July 2, 2018, when the Appeals Council denied plaintiff's request for review. R. 1-7. This action followed. B. Medical Evidence Before the ALJ
The initial application was a claim for DIB. R. 184, 267. Plaintiff filed her claim for SSI benefits on March 21, 2015. R. 184, 191. In both applications, plaintiff alleged disability beginning October 1, 2013. R. 184.
Vocational expert Eileen Feldman also testified at the hearing. R. 260-64.
On March 17, 2014, an MRI of plaintiff's cervical spine revealed disc herniations (most prominent at C4-5 and C5-6) and "[s]evere straightening of the cervical lordosis which may be related to positioning or muscle spasm." R. 448. On March 31, 2014, plaintiff began physical therapy ("PT") to address her complaints of "intermittent aching" neck pain and numbness in her left upper extremity which limited her activities of daily living ("ADLs"). R. 452. On May 2, 2014, after twelve PT sessions, plaintiff's neck pain was more localized, less intense and less frequent and she was able to do overhead activity with less difficulty. Id.
Cervical lordosis is "the normal, anteriorly convex curvature of the cervical segment of the vertebral column." Farlex Partner Medical Dictionary © Farlex 2012, accessed at https://medical-dictionary.thefreedictionary.com/cervical+lordosis.
On May 13, 2014, an MRI of plaintiff's cervical spine revealed disc bulges at C3-4 and C5-6, a prominent disc herniation at C4-5 (indenting the ventral margin of the thecal sac and spinal cord), straightening of the cervical spine (which could be due to muscle spasm) and no spinal stenosis or myelopathy. R. 654-55. That same day, an MRI of plaintiff's lumbar spine showed a disc bulge at L3-4, facet hypertrophy (noted throughout), straightening of the lumbar spine (possibly due to muscle spasm) and no spinal stenosis. R. 656. On May 14, 2014, an MRI of plaintiff's thoracic spine revealed straightening (which could be due to muscle spasm) and "no evidence of disc bulge, herniation or spinal stenosis." R. 657. On May 30, 2014, plaintiff presented for PT "with significant improvement" of pain, tenderness, range of motion ("ROM"), motor strength and functional ADLs. R. 456.
"Spinal stenosis causes narrowing in your spine. The narrowing puts pressure on your nerves and spinal cord and can cause pain." MedlinePlus, a service of the U.S. National Library of Medicine and the National Institutes of Health, available at https://medlineplus.gov/spinalstenosis.html. "Myelopathy is a disorder that results from severe compression of the spinal cord." Johns Hopkins Medicine, The Johns Hopkins University, The Johns Hopkins Hospital, and Johns Hopkins Health System © 2019, accessed at https://www.hopkinsmedicine.org/health/conditions-and-diseases/myelopathy.
"Facet Hypertrophy is the term used to describe a degeneration and enlargement of the facet joints. The facet joints, which are a pair of small joints at each level along the back of the spine, are designed to provide support, stability, and flexibility to the spine." Veritas Health © 1999-2019 Veritas Health, LLC, accessed at https://www.spine-health.com/glossary/hypertrophic-facet-disease.
This is the final physical therapy treatment note from 2014.
On June 20, 2014, plaintiff went to the Mount Sinai/St. Luke's Hospital emergency room complaining of back pain. R. 495-98. A physical examination revealed tenderness upon palpation to the left lumbar paraspinal muscles, no midline spinal tenderness and 5/5 strength in plaintiff's lower extremities. R. 496-97. Plaintiff was neurovascularly intact and ambulatory. R. 497. She was diagnosed with chronic back pain, discharged with prescriptions for Ibuprofen and a muscle relaxant and cleared to return to work without restrictions on June 23, 2014. R. 497-98.
On June 25, 2014, in conjunction with her application for public assistance, plaintiff was evaluated by the Federation Employment & Guidance Service ("FEGS"). R. 458-87. Plaintiff traveled by subway to the appointment; she reported "whole back pain" as a barrier to employment. R. 459-60. She also reported difficulty with ADLs due to "chronic severe pain" and alleged she was limited to climbing one stair and walking one-fourth of a block. R. 465-66. On physical examination (by FEGS physician Dr. Fazil Hussain), plaintiff had "moderate" tenderness upon motion of the posterior neck, "severe" tenderness upon flexion/extension of the lumbosacral spine and decreased ROM (unquantified) in her lumbosacral spine. R. 479. Dr. Hussain opined that plaintiff had the following work limitations: lift/push/pull 0-5 pounds, 1-10 times/hour for less than 30 minutes; walk/stand less than 30 minutes; sit less than one hour; no reaching; and no repetitive bending. R. 480-81. Dr. Hussain recommended a ninety-day wellness plan for severe neck and back pain, herniated cervical and lumbar disks, lumbar radiculopathy and arthritis. R. 486.
FEGS was a nonprofit health and human services organization in New York City. It has been defunct since early 2015.
On July 10, 2014, plaintiff was examined by Dr. Otis Barron at St. Luke's orthopedic clinic. R. 513. Plaintiff complained of back pain radiating down to her left toes for the past three months, with occasional tingling in her arms and legs on the entire left side. Id. She denied muscular weakness; she stated that she had not had any treatment so far. Id. Upon examination, plaintiff had full ROM in her cervical, thoracic and lumbar spine, no midline spinal tenderness and full strength and sensation, bilaterally, in upper and lower extremities. Id. Her reflexes were equal and symmetric; straight leg raising test was negative. Id. Dr. Barron prescribed physical therapy. Id.
On September 4, 2014, plaintiff was examined by Dr. Daveed Frazier at St. Luke's/Roosevelt Hospital. R. 511. Plaintiff reiterated her previous complaints about radiating back pain, which she said had been ongoing for seven months, and denied muscular weakness. Id. She denied any relief from past physical therapy. Id. Plaintiff's examination results were essentially benign, unchanged from the July 10th examination. Id. At plaintiff's insistence, Dr. Frazier referred her for steroid injections. Id. On October 1, 2014, Dr. Jung Kim (at St. Luke's clinic) evaluated plaintiff for steroid injections. R. 509. She complained of neck and back pain "for many years," worsening since February. Id. Plaintiff reported "some days she gets weakness in her arms and legs," and stated that physical therapy and medications "do not help at all." Id. Upon examination, plaintiff walked with an antalgic gait. Id. She had limited ROM (unquantified) in her cervical spine; she exhibited paracervical muscle tightness and tenderness. Id. She had perilumbar tenderness, bilateral sacroiliac joint tenderness and multiple paired trigger points with pain on extension. Id. Dr. Kim concluded that plaintiff could benefit from steroid injections "so that she can participate in PT and improve in the future." Id. Based upon plaintiff's representation that her back pain was worse than her neck pain, Dr. Kim scheduled plaintiff for a lumbar injection. Id. Plaintiff received the lumbar injection on October 21, 2014. R. 522-23.
An antalgic gait is "[a] limp in which a phase of the gait is shortened on the injured side to alleviate the pain experienced when bearing weight on that side." The American Heritage® Stedman's Medical Dictionary, Houghton Mifflin Company, accessed at Dictionary.com, https://www.dictionary.com/browse/antalgic-gait.
On October 31, 2014, plaintiff was examined by NP LaToya Weathersby at St. Luke's Heritage Health and Housing facility. R. 524-25. Plaintiff complained of bilateral hip pain (over the prior two days) and radiating low back pain with weakness, numbness and tingling. R. 524. Upon examination, plaintiff had normal ROM in her extremities, normal sensations and symmetric strength and reflexes. R. 525. She had normal ROM in her cervical spine; her lumbosacral spine was within normal limits, except for "[p]ain with bending over." Id. NP Weathersby referred plaintiff to physical therapy for her low back pain, and prescribed Ibuprofen and pain medication (Tramadol and Gabapentin). R. 524.
Plaintiff returned to NP Weathersby on April 21, 2015 seeking treatment for abdominal pain. R. 539-40. Plaintiff's physical examination was generally unremarkable (including normal ROM in her cervical and lumbosacral spine), except for pain with bending over. R. 540. On June 1, 2015, plaintiff sought treatment at Mount Sinai/St. Luke's Hospital for a corneal ulcer. R. 599-604. She denied any joint pain, weakness or myalgia. R. 599. Upon routine physical examination, plaintiff's motor strength was intact and her sensation, gait and coordination were normal. R. 601. On October 14, 2015, during a medical visit for complaints of stomach pain, plaintiff denied any joint pain or muscle pain. R. 554.
"Myalgia describes muscle aches and pain, which can involve ligaments, tendons and fascia, the soft tissues that connect muscles, bones and organs." Johns Hopkins Medicine, accessed at https://www.hopkinsmedicine.org/health/conditions-and-diseases/myalgia.
On November 30, 2015, plaintiff was seen by Dr. Mary Chandy (at St. Luke's Heritage Health and Housing facility) for complaints of left hip pain. R. 556-57. Plaintiff reported pain in her left hip for the past year, radiating to her groin and buttocks, unrelieved by an epidural injection one year prior. R. 556. Plaintiff stated that she "gets some relief from heat and physical therapy. Id. A physical examination revealed "mild tenderness on palpation around left hip." R. 557. Dr. Chandy did not provide a diagnosis or recommend any treatment for plaintiff's complaints of hip pain. Id.
On June 8, 2016, plaintiff saw Dr. Stacie Richardson at St. Luke's Heritage Health and Housing facility for a medical check-up. R. 558-61. Plaintiff complained of chronic pain in her left back, shoulder and hip (radiating to her foot) with numbness and tingling in her left arm and lower extremities. R. 558. Plaintiff reported prior PT and requested a referral to restart PT. Id. Upon examination, plaintiff had full ROM in her shoulder, spine and lower extremities bilaterally, with pain on ROM testing of left shoulder, R. 559. She had tenderness to palpation in her left shoulder, left hip, lumbar spine and left paraspinal muscles. Id. Straight-leg raising test was positive. Id. Dr. Richardson assessed unspecified joint pain and dorsalgia. Id. She referred plaintiff for a PT evaluation and recommended that plaintiff continue to take Ibuprofen. R. 559-60. At a follow-up appointment on June 29, 2016, Dr. Richardson noted identical findings upon examination; she also noted plaintiff's gait, sensation and bilateral motor strength were normal. R. 566. Additionally, Dr. Richardson noted plaintiff had an upcoming PT appointment and that plaintiff declined to follow-up with the orthopedic clinic. Id.
Dorsalgia is defined as "[p]ain in the upper back." The American Heritage® Stedman's Medical Dictionary, at https://www.dictionary.com/browse/dorsalgia.
On October 18, 2016, Dr. Richardson saw plaintiff for complaints of cough and abdominal pain. R. 568-70. Dr. Richardson noted plaintiff's complaints of chronic left-sided pain in her back, shoulder and hip but did not report any examination results pertinent to those complaints. Id. She also noted that plaintiff declined to follow-up with the orthopedic clinic, and that plaintiff did not like the PT facility and was looking for an alternative one. R. 570.
Plaintiff returned to Dr. Richardson on December 20, 2016 and reiterated her prior complaints of back, shoulder and hip pain. R. 612. Dr. Richardson noted that plaintiff continued to decline follow-up with the orthopedic clinic, and gave her a new PT referral. R. 608-10, 613.
Plaintiff attended PT regularly from January 16, 2017 through March 9, 2017. R. 606, 617-18, 620, 624-25, 627.
On February 20, 2017, plaintiff went to Mount Sinai/St. Luke's emergency room and complained of back pain, radiating down her left side, which had worsened in the last few days and was not improving with Ibuprofen. R. 586-93. She denied numbness, weakness and difficulty walking. R. 589. Upon physical examination, plaintiff was able to straight-leg raise to 90 degrees, bilaterally, without increased pain. R. 590. There was no musculoskeletal pain or midline spinal tenderness; plaintiff's back was "nontender." Id. She had full ROM, passively and actively, and intact motor strength in all extremities. Id. Plaintiff's sensation and gait were normal. Id. After receiving pain medication, plaintiff reported that the pain had improved. R. 591. Upon discharge, she was ambulatory and reported "mild" pain (1/10 on the pain scale). R. 588.
The next day (February 21, 2017), plaintiff returned to Dr. Richardson for renewal of her prescriptions. R. 572. Plaintiff reported that she had gone to the emergency room the day before because of sharp pain in her lower extremity. Id. Upon examination, plaintiff had full ROM in her shoulder, spine and lower extremities (bilaterally), with pain on ROM testing in the left shoulder. R. 573. She had tenderness to palpation in her left shoulder, left hip, lumbar spine and left paraspinal muscles. Id. Straight leg raising test was negative. Id. Dr. Richardson advised plaintiff to continue taking Ibuprofen. R. 574. Plaintiff continued to decline follow-up with the orthopedic clinic, but requested updated MRIs due to recent worsening of her symptoms. Id. Later that day, plaintiff underwent MRIs of her cervical and lumbar spine.
On March 6, 2017, plaintiff reviewed her MRI results with Dr. Chandy. R. 580. The MRIs showed disc bulges with no spinal stenosis at C5-6, L3-4, and L4-5, straightening of the lumbar and cervical spine, a disc herniation at L5-S1 (no spinal stenosis) and a bone spur causing mild spinal stenosis at C4-5. R. 581, 659-60. Dr. Chandy referred plaintiff to the orthopedic clinic. R. 581.
On March 13, 2017, plaintiff was evaluated by Dr. Luba Karlin, a physician at the facility where plaintiff was receiving PT. R. 646-52. She complained of, inter alia, increased neck pain (8-9/10 on the pain scale), intermittently radiating to the left side of her face and left upper extremity, and constant low back pain/stiffness, radiating bilaterally to her lower extremities. R. 646. Plaintiff's gait was antalgic and she was unable to walk on her heels and toes. R. 650. She had difficulty dressing/undressing and getting on/off the exam table. Id. A cervical spine examination revealed tenderness on palpation over the paraspinal muscles (bilaterally) and vertebrae (C2-7). R. 646. Plaintiff exhibited decreased ROM in her neck upon flexion, extension, bilateral flexion and bilateral rotation. R. 646, 648. Spurling's test was positive, bilaterally. R. 648. Examination of plaintiff's lumbar spine revealed tenderness on palpation and decreased ROM upon flexion, extension, bilateral rotation and bilateral flexion. Id. Straight-leg raising tests (straight, sitting and reversed) were positive, bilaterally; Patrick's maneuver was also positive. Id. Plaintiff had pain upon compression of the sacroiliac joint and tenderness, bilaterally, upon palpation of the sciatic notch. Id. Examination of plaintiff's shoulders showed full ROM, bilaterally, with pain. R. 648, 650. Plaintiff's upper extremity muscle strength was 5/5 on the right (except for 4/5 thumb opposition) and 4-/5 to 4+/5 on the left. R. 650. Her lower extremity muscle strength was 4/5 to 5/5, bilaterally. Id. A sensory evaluation revealed hypersensitivity to pinprick over plaintiff's left forearm, thumb and index finger, and decreased sensitivity to pinprick over her left outer leg and top of her left foot. R. 650-51. Dr. Karlin diagnosed traumatic cervical and lumbosacral radiculitis, cervical and lumbar intervertebral disc disorder with myelopathy, and displacement of cervical/lumbar intervertebral disc without myelopathy. R. 651. He recommended additional PT, referred plaintiff for electrodiagnostic testing and to a neurosurgeon, and prescribed pain medications (Lyrica® and NSAIDs). R. 631, 634, 652.
Spurling's test is an "evaluation for cervical nerve root impingement in which the patient extends the neck and rotates and laterally bends the head toward the symptomatic side; an axial compression force is then applied by the examiner through the top of the patient's head; the test is considered positive when the maneuver elicits the typical radicular arm pain." Stedman's Medical Dictionary © Wolters Kluwer Health, accessed at https://www.medilexicon.com/dictionary/90833.
With Patrick's maneuver, "pain in the hip evoked by pressure on the knee is presumptive evidence of sacroiliac disease." McGraw-Hill Concise Dictionary of Modern Medicine © 2002 by The McGraw-Hill Companies, Inc., accessed at https://medical-dictionary.thefreedictionary.com/Patrick's+sign.
Radiculitis is defined as "[i]nflammation of a spinal nerve root." McGraw-Hill Concise Dictionary of Modern Medicine, accessed at https://medical-dictionary.thefreedictionary.com/radiculitis.
On March 30, 2017, plaintiff was re-examined by Dr. Karlin. R. 637-41. Dr. Karlin's findings and treatment plan were unchanged. Id.
On May 2, 2017, plaintiff saw orthopedic surgeon Dr. Dennis Fabian. R. 683. Plaintiff complained of pain (unspecified, but 10/10 on the pain scale) and reported that PT and NSAIDs provided no relief. Id. Dr. Fabian diagnosed cervical stenosis; he noted that plaintiff "may be a surgical candidate, or possibly referred to pain management." Id. Plaintiff was directed to follow-up in the spine clinic in six to eight weeks. Id.
On May 16, 2017, plaintiff was treated at Mount Sinai/St. Luke's emergency department for a complaint of facial pain. R. 676-81. She was discharged with a prescription for Ketorolac (twice a day for five days). R. 681.
Ketorolac is a "nonsteroidal anti-inflammatory" drug which, when injected, provides "short-term relief of moderately severe pain." MedlinePlus, at https://medlineplus.gov/druginfo/meds/a614011.html.
II. LEGAL STANDARDS
A. Standard of Review
In reviewing a decision of the Commissioner, a district court may "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). See 42 U.S.C. § 1383(c)(3). "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). Rather, 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) (quoting Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002)).
The substantial evidence standard is "even more" deferential than the "'clearly erroneous' standard." Brault v. Soc. Sec. Admin, 683 F.3d 443, 448 (2d Cir. 2012), The reviewing court must defer to the Commissioner's factual findings and the inferences drawn from those facts, and the Commissioner's findings of fact are considered conclusive if they are supported by substantial evidence. See 42 U.S.C. § 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). 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. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (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 quotation marks and citation omitted). "If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld." McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (citation omitted).
"However, where the proper legal standards have not been applied and 'might have affected the disposition of the case, the court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ. Failure to apply the correct legal standards is grounds for reversal.'" Velez v. Colvin, No. 14 Civ. 3084, 2017 WL 1831103, at *15 (S.D.N.Y. June 5, 2017) (citing Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004)). Thus, "[w]hen there are gaps in the administrative record or the ALJ has applied an improper legal standard," or when the ALJ's rationale is unclear in relation to the record evidence, remand to the Commissioner "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).
When, as here, if a motion for judgment on the pleadings is unopposed (in the context of a Social Security benefits appeal), the Court may not grant the unopposed motion based merely upon the opposing party's failure to respond; rather, the Court "must review the record and determine whether the moving party has established that the undisputed facts entitle it to judgment as a matter of law." Martell v. Astrue, No. 09 Civ. 1701, 2010 WL 4159383, at *2 n.4 (S.D.N.Y. Oct. 20, 2010) ("[I]n light of the similarity between a motion for summary judgment and a motion on the pleadings in the present context, where there is a fulsome record of the underlying administrative decision, we look to the summary judgment context for guidance."). See also Ortiz v. Comm'r of Soc. Sec., No. 15 Civ. 7602, 2017 WL 519260, at *5 (S.D.N.Y. Feb. 8, 2017); McCreery v. Comm'r of Soc. Sec., No. 13 Civ. 3254, 2014 WL 3377099, at *4 (S.D.N.Y. My 9, 2014); Sepulveda v. Comm'r of Soc. Sec., No. 12 Civ. 4301, 2013 WL 6588452, at *2 (S.D.N.Y. Dec. 16, 2013). B. Statutory Disability
A claimant is disabled under the SSA when 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), 1382c(a)(3)(A). In addition, a person is eligible for disability benefits under the SSA only if
his physical or mental impairment or impairments are of such severity that he 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.Id. §§ 423(d)(2)(A), 1382c(a)(3)(B).
Social Security Regulations set forth a five-step sequential analysis for evaluating whether a person is disabled under the SSA:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of impairments;
(3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments;
(4) based on a "residual functional capacity" assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and
(5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age,
education, and work experience.McIntyre, 758 F.3d at 150 (citing 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 of the process. See Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008). If the claimant proves that his impairment prevents him from performing his past work, the burden shifts to the Commissioner at the fifth and final step. See Brault, 683 F.3d at 445.
Many of the regulations and Social Security Rulings cited herein have been amended subsequent to the ALJ's decision. For the sake of brevity, I discuss (and have applied) the relevant regulations/rulings as they existed at the time of the ALJ's decision.
III. THE ALJ'S DECISION
In the introductory section of his decision, the ALJ stated the following:
Subsequent to the [June 2017] hearing, the local office attempted to arrange a consultative examination of the claimant but the medical provider stated that when the scheduler attempted to contact the claimant, the scheduled [sic] was informed by the claimant that she was leaving the country. (Ex. 12E) The claimant made no attempt to reschedule or advise when she would be available more than 30 days after contact.R. 184. The ALJ then proceeded to evaluate plaintiff's disability claim pursuant to the five-step sequential analysis. R. 185-86. See 20 C.F.R. § 404.1520(a)(4)(I)-(v) and discussion, supra.
At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since October 1, 2013, the alleged onset date of her disability. R. 186. At step two, the ALJ concluded that plaintiff has the following severe impairments: lumbar and cervical degenerative disc disease; obesity. Id. At step three, the ALJ determined that plaintiff's impairments (individually or combined) did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 187.
Next, the ALJ concluded that plaintiff has the residual functional capacity ("RFC") to perform light work (as defined in 20 CFR §§ 404.1567(b) and 416.967(b)), "except she is limited to occasional stooping." Id. In reaching this conclusion, the ALJ considered "all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence" and "opinion evidence" in accordance with 20 C.F.R. §§ 404.1527, 404.1529, 416.927 and 416.929, and the Social Security Rulings 96-4p, 96-2p, 96-5p, 96-6p and 06-3p. R. 187-91.
The record before the ALJ contained only one medical opinion: the work limitations assessed by FEGS' Dr. Hussain in June 2014. R. 480-81. The ALJ gave "little weight" to this opinion "as it was based on a one-time examination performed for the purpose of evaluating the claimant's ability to perform work for the receipt of public assistance; it was not performed by a treating doctor and there was no indication that the described limitations were expected to last at least 12 months." R. 188. --------
At step four, the ALJ determined that plaintiff is able to perform her past relevant work as a bartender. R. 191. At step five, based upon the vocational expert's hearing testimony, the ALJ concluded that if plaintiff "had additional limitations that would limit her to a job with no rapid, repetitive neck movements from side to side or up and down," there are "a sufficient number of jobs in the national economy [that plaintiff can perform], even if [she] could not perform her past relevant work." Id. Thus, the ALJ found plaintiff "not disabled" as defined in the SSA. Id.
IV. ASSESSING THE ALJ'S FINDINGS
The Commissioner argues that the ALJ's decision is legally correct and supported by substantial evidence and, therefore, should be affirmed. Dkt. #16, at 17-25. I have liberally construed plaintiff's pro se submission in this proceeding and, in light of the record evidence, interpreted it to raise the strongest arguments it suggests. Triestman, 470 F.3d at 474. Accordingly, I read plaintiff's complaint to challenge the ALJ's failure to afford plaintiff an opportunity to reschedule her consultative examination.
It is well-settled that the ALJ has an affirmative obligation to develop the record. See Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). "Whether the ALJ has fulfilled his or her duty to develop the record is a threshold issue." Matos v. Berryhill, No. 13 Civ. 5062, 2017 WL 2371395, at *15 (S.D.N.Y. May 4, 2017) (Report & Recommendation), adopted 2017 WL 2364368 (May 30, 2017). "The ALJ must seek additional evidence or clarification where the documentation from a claimant's treating physician, psychologist, or other medical source is inadequate . . . to determine whether the claimant] is disabled." Matta v. Colvin, No. 13 Civ. 5290, 2016 WL 524652, at *9 (S.D.N.Y. Feb. 8, 2016) (quotation marks and citation omitted). To this end, "[i]f necessary additional information is not readily available from the treating physicians or other medical sources, the ALJ may 'ask [the claimant] to have one or more physical or mental examinations or tests' at the SSA's expense." Id. (citing 20 C.F.R. §§ 404.1517, 416.917). "If a claimant does 'not have a good reason for failing or refusing to take part in a consultative examination or test . . . [the SSA] may find that [the claimant is] not disabled.'" Id. (citing 20 C.F.R. §§ 404.1518.416.918). Accordingly, the regulations instruct claimants:
if you have any reason why you cannot go for the scheduled appointment, you should tell us about this as soon as possible before the examination date. If you have a good reason, we will schedule another examination.20 C.F.R. §§ 404.1518(a), 416.918(a). "Examples of good reasons for failing to appear at a consultative examination include: '(1) Illness on the date of the scheduled examination or test; [and] (2) Not receiving timely notice of the scheduled examination or test, or receiving no notice at all[.]'" Matta, 2016 WL 524652, at *9 (citing 20 C.F.R. §§ 404.1518. 416.918).
"Where claimants have refused to acknowledge, attend, or cooperate at scheduled consultative examinations or have failed to argue that they had good reasons for not attending such examinations, courts have rejected claims that the ALJ failed to develop the record." Matta, 2016 WL 524652, at *10 (citations omitted). See Lay v. Colvin, No. 14 Civ. 981S, 2016 WL 3355436, at *5 (W.D.N.Y. June 16, 2016) (plaintiff proffered no explanation for failure to attend initial appointment and rescheduled appointment); Faucette v. Comm'r of Soc. Sec., No. 13 Civ. 4851, 2015 WL 5773565, at *18 (S.D.N.Y. Sept. 30, 2015) ("The record makes clear that any attempt by the ALJ to schedule a consultative examination would have been fruitless and that despite being advised of the consequences of his failure to attend, plaintiff was adamant in his refusal to attend such examinations."); Lewis v. Colvin, No. 13 Civ. 1072S, 2014 WL 6609637, at *6-7 (W.D.N.Y. Nov. 20, 2014) (plaintiff appeared on the appointed date but left before she could be assessed, stating that she did not want to wait).
Here, plaintiff did not miss a scheduled consultative examination without explanation; nor did she refuse to cooperate or attend. In this case, the Commissioner authorized a consultative medical examination - presumably because he believed he lacked sufficient evidence regarding the severity of plaintiff's impairments to determine whether she was disabled. In any event, regardless of the ALJ's reason, the regulations set forth the process to be followed once a consultative examination is authorized. It appears that plaintiff complied with the regulations: she notified the scheduler (apparently upon initial contact) that she was going to be out of the country. R. 436-37. In response, the "voucher" for the consultative examination was "placed on hold" and expired after thirty days. Id. No attempt was made to reschedule the examination. The ALJ subsequently rendered his decision - but the decision does not include a finding that plaintiff lacked a good reason for failing to take part in a consultative examination. "In failing to do so, the ALJ precluded meaningful review of [his] decision to make a determination based on incomplete evidence." Antoniou v. Astrue, No. 10 Civ. 1234, 2011 WL 4529657, at *17 (E.D.N.Y, Sept. 27, 2011).
Accordingly, I conclude that this matter is remanded to the Commissioner. Upon remand, the ALJ shall: (1) provide plaintiff with a meaningful opportunity to reschedule the consultative examination; and (2) re-evaluate plaintiff's RFC if a consultative opinion is obtained.
V. CONCLUSION
For the reasons set forth above, defendant's motion for judgment on the pleadings is DENIED and the case is REMANDED for further administrative proceedings consistent with this Report and Recommendation pursuant to 42 U.S.C. § 405(g), sentence four.
The Clerk of the Court is respectfully directed to terminate the pending motion (Dkt. #15) and close this case. Dated: August 26, 2019
White Plains, New York
SO ORDERED.
/s/_________
PAUL E. DAVISON, U.S.M.J.