Santana v. Kijakazi

Full title: LINA YOCASTA SANTANA, Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER…

Court: United States District Court, S.D. New York

Date published: Jul 29, 2022

Civil Action 21 Civ. 1041 (ER) (SLC) (S.D.N.Y. Jul. 29, 2022)

Opinion

Civil Action 21 Civ. 1041 (ER) (SLC)

07-29-2022

LINA YOCASTA SANTANA, Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

REPORT & RECOMMENDATION

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

TO THE HONORABLE EDGARDO RAMOS, United States District Judge:

I. INTRODUCTION

Plaintiff Lina Yocasta Santana (“Ms. Santana”) commenced this action pursuant to Section 205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. § 405(g). (ECF No. 1). Ms. Santana seeks review of the decision by the Commissioner (the “Commissioner”) of the Social Security Administration (“SSA”), denying her application for Social Security Income (“SSI”) under the Act. (Id.) Ms. Santana contends that the decision of the Administrative Law Judge (“ALJ”) dated April 7, 2020 (the “ALJ Decision”) is erroneous because the ALJ's determination is not supported by substantial evidence and because the ALJ failed to elicit testimony from a vocational expert. (ECF No. 18 at 23-28).

The parties have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). On December 20, 2021, Ms. Santana filed a motion for judgment on the pleadings (ECF No. 17 (“Ms. Santana's Motion”)), on February 18, 2022, the Commissioner crossmoved (ECF No. 19 (the “Commissioner's Motion”)), and on March 11, 2022, Ms. Santana filed a reply. (ECF No. 24) (Ms. Santana's Motion and the Commissioner's Motion, the “Motions”). For the reasons set forth below, I respectfully recommend that Ms. Santana's Motion be GRANTED, the Commissioner's Motion be DENIED, and the matter be remanded for further proceedings.

II. BACKGROUND

A. Procedural Background

On August 1, 2018, Ms. Santana filed an application for SSI, initially alleging a disability onset date of June 30, 2017, which was later amended to December 15, 2017. (Administrative Record (“R.”) 38-40, 171-79 (ECF Nos. 23 - 23-4)). She alleged that her disabilities were a torn ligament on her left foot, high cholesterol, depression, and anxiety. (R. 82-83, 204). On October 18, 2018, the SSA denied her application. (R. 82-92).

After Ms. Santana requested a hearing before an ALJ, on January 30, 2020, ALJ Brian G. Kanner conducted a hearing (the “Hearing”). (R. 32-74). On April 7, 2020, ALJ Kanner issued his Decision finding that Ms. Santana was not disabled under the Act. (R. 12-31). On December 10, 2020, the ALJ Decision became the final decision of the Commissioner when the Appeals Council denied review. (R. 1-5).

B. Factual Background

1. Non-medical evidence

Ms. Santana was born in 1972 and was 45 years old on the alleged onset date. (R. 41, 82). She completed the ninth grade in special education, and has had no other vocational training. (R. 42).¹Her past work includes employment as a baker helper, home health aide, cleaner, medicine sorter, and factory assembler. (R. 23, 42-48, 205).

1 A notation in the record indicates that Ms. Santana completed the tenth grade, but the Court defers to her testimony at the Hearing that she completed the ninth grade. (Compare R. 42 with R. 205). The difference is immaterial, and is consistent with the ALJ's finding that she has “a limited education.” (R. 24).

In a function report dated August 27, 2018 (the “Function Report”), Ms. Santana stated that her daily activities included sitting all day “staring at the wall[.]” (R. 218). She did not sleep or eat much at all due to her anxiety. (R. 218-19). She only leaves her apartment when she has an appointment because she is “too scared to go out alone” and moves slowly because of the boot on her foot. (R. 220). She is able to pay bills and count change, but does not handle a savings account. (R. 221). She no longer engages in any hobbies and does not socialize with friends. (R. 221-22). Ms. Santana stated that she cannot lift or stand due to the pain in her left leg, which goes to sleep while she is sitting. (R. 222). She can follow spoken or written instructions with help and has a hard time reading. (R. 224). She sometimes has trouble getting along with people in positions of authority because “they make [her] feel stupid.” (R. 224). Stress and changes in schedule cause her to be nervous, shaky, and anxious. (R. 224). She has trouble remembering, and sometimes, her “nerves are so out of control that [she] begin[s] to cry for no reason.” (R. 224).

2. Medical evidence

Ms. Santana summarized the evidence concerning her physical and mental impairments, (ECF No. 18 at 5-22), a summary that the Commissioner adopted and supplemented with additional facts. (ECF No. 20 at 9-16). Accordingly, the Court adopts the parties' summaries of the medical evidence as accurate and complete, and summarizes below the pertinent evidence for purposes of analyzing the Motions.

a. Physical Impairment

On December 15, 2017, while working in the bakery, Ms. Santana slipped and “fell up against a wall[,]” twisting her left ankle and causing severe pain from her ankle radiating to her buttock. (R. 804). She ultimately stopped working on December 19, 2017 due to severe pain. (R. 804).

i. Mohamed Ahmed, M.D.

After she injured her left foot and ankle while working in the bakery on December 15, 2017, Ms. Santana began treatment with Mohamed Ahmed, M.D. (“Dr. M. Ahmed”) and Khaled Ahmed M.D. (“Dr. K. Ahmed”) at Hunts Point Medical Associates. (R. 645-77). On January 3, 2018, Ms. Santana complained of pain in her left plantar heel while walking at level 9/10, which prevented her from going to work. (R. 657). An MRI was performed, and Dr. K. Ahmed prescribed rest, pain medication, and physical therapy. (R. 657-58). At her next visit on January 26, 2018, Ms. Santana complained of pain at a level 7/10 and buckling in her left knee when she walked or stood, which NSAIDs did not alleviate. (R. 651-52). Dr. M. Ahmed diagnosed left knee sprain for which he prescribed a brace, Mobic (15mg),² physical therapy, home exercise, and activities modifications to avoid prolonged walking, standing, climbing, or squatting. (R. 654-55). During her February 9, 2018 visit, Ms. Santana reported that physical therapy and pain medication were helping to alleviate the pain in her left ankle. (R. 661). Dr. M. Ahmed added a diagnosis of plantar fascial fibromatosis, assessed her as having a temporary 50% disability, and maintained the prescribed treatment plan from the prior visit. (R. 664). Dr. M. Ahmed recommended a steroid injection, but Ms. Santana “refused.” (R. 665). On March 9, 2018, Ms. Santana described her left foot and ankle pain as continuing, at a level 6/10. (R. 668). Dr. M. Ahmed maintained his diagnoses, added a prescription for Motrin (800mg), and recommended a steroid injection, but Ms. Santana refused. (R. 670).

2 Mobic is the brand name for the nonsteroidal anti-inflammatory drug (“NSAID”) meloxicam, which reduces pain, swelling, and stiffness of the joints. See Mobic - Uses, Side Effects, and More, WEBMD, https://www.webmd.eom/drugs/2/drug-18173/mobic-oral/details (last visited July 29, 2022).

On November 16, 2018, Dr. M. Ahmed performed surgery that included the following procedures:

ankle arthroscopy, left, ankle partial synovectomy, left, ankle extensive debridement, left, chondroplasty of central osteochondral lesions of talus, lateral collateral ligaments repair through capsular shrinkage using arthocare, ankle joint Duramorph injection for postoperative pain control and posterior splint application[.]

(R. 1022-23). Dr. M. Ahmed's post-operative diagnosis was internal ankle derangement, sprain, and osteochondral dissecans lesion. (R. 1023). One week post-surgery, Dr. M. Ahmed noted that the incision on her left ankle appeared to be healing, but showed mild swelling and tenderness, and strength at 4/5; he prescribed home exercise, activities modification, and Percocet.³(R. 648).

3 Percocet is an opioid pain reliever. See Percocet - Uses, Side Effects, and More, WEBMD, https://www.webmd.eom/drugs/2/drug-7277/percocet-oral/details (last visited July 29, 2022).

On April 19, 2019, Dr. M. Ahmed performed surgery that included the following procedures: “left foot endoscopic plantar fasciotomy, left ankle block, plantar fascia Depo-Medrol 40 injection and posterior sprint application[,]” based on a diagnosis of left foot plantar fasciitis. (R. 1023).

On December 6, 2019, Ms. Santana informed Dr. M. Ahmed that her left ankle pain was “improving” but her left foot pain had worsened to level 8/10 over the past month and was not alleviated by NSAIDs or activities modification. (R. 815). Dr. M. Ahmed diagnosed left ankle sprain and plantar fascial fibromatosis,⁴ and assessed her temporary disability at 100%. (R. 818). Dr. M. Ahmed prescribed physical therapy, home exercise, and Tylenol (500mg), and authorized a platelet-rich plasma (“PRP”) injection.⁵(R. 818). The same day, Dr. M. Ahmed completed an assessment of Ms. Santana's residual functional capacity (“RFC”), noting a diagnosis, confirmed by MRI, of left foot and ankle derangement and plantar fasciitis for which she was receiving treatment twice per month, and a prognosis of “guarded.” (R. 793-99 (the “Dec. 6 Assessment”)). The Dec. 6 Assessment references a “report,” the identity of which is not apparent from the record. (R. 795-99).

4 A fibrous knot or nodule in the arch of the foot. See What Is a Plantar Fibroma?, WEBMD, https://www.webmd.com/pain-management/what-is-plantar-fibroma (last visited July 29, 2022).

5 “PRP injections are used to treat torn tendons, tendinitis, muscle injuries, arthritis-related pain, and joint injuries.” See Platelet-Rich Plasma Injections: What to Know, JUMPSTART BY WEBMD, https://www.webmd.com/fitness-exercise/platelet-rich-plasma-injections (last visited July 29, 2022).

On February 15, 2020, Dr. M. Ahmed examined Ms. Santana, noting only continued pain in her left ankle and foot, and diagnoses of plantar fascial fibromatosis and left ankle ligament sprain. (R. 1010-19).

ii. Multi-Specialty Pain Management

In August 2019, Ms. Santana began treatment at Multi-Specialty Pain Management (“MSPM”). (R. 640). An examination on August 21, 2019 noted that her surgical incisions had healed, no significant tenderness or atrophy, a limited active range of motion in her left ankle, pain on stress testing, and her use of a CAM boot.⁶ (R. 641-42). Ms. Santana reported that, due to her pain level, she had difficulty in performing the activities of daily living, and feared that engaging in certain activities of daily living would increase her pain. (R. 641). She was instructed to begin physical therapy, avoid strenuous activity and heavy lifting, and return in four weeks. (R. 642). She was assessed at 100% temporary disability. (R. 642). On August 26, 2019, MSPM added a course of electronic stimulation, heat and cold therapy, myofascial release, and therapeutic exercises. (R. 637).

6 A foot brace-designed to alleviate pressure off an ulcerated area of a foot, offer support, and control ankle movements. See How Does a CAM Walker Work?, LIVESTRONG.COM, https://www.livestrong.com/article/22337-cam-walker-work/ (last visited July 29, 2022).

Throughout September and October 2019, Ms. Santana's physical therapist continued this course, noting pain and swelling in her left ankle, but that she underwent treatment without adverse effects. (R. 617-23, 627-35). During a September 19, 2019 examination, Ms. Santana reported that the physical therapy had “helped some[,]” but she continued to feel “a constant stabbing and sharp sensation aggravated with standing or walking[,]” swelling, and “pins and needles sensation.” (R. 624). Marinela Popaj, PAC, (“Ms. Popaj”) and Brian Haftel, M.D., noted her ongoing symptoms and deteriorated neurological status, and thus ordered an EMG/NCCV examination of her lower extremities. (R. 625-26). They also instructed her to undergo an orthopedic consult, continue physical therapy as tolerated, avoid strenuous and heavy lifting, and return in four weeks. (R. 626). During an October 31, 2019 examination, Ms. Santana told Farhana Ahmed, D.O. (“Dr. F. Ahmed”), that her ankle pain was “a constant stabbing, throbbing and sharp sensation” with “pins and needles,” which was helped “some” by medications and physical therapy. (R. 614-16). The examination of the ankle was consistent with the August 21, 2019 examination. (R. 614-16). Dr. F. Ahmed noted that EMG results were still pending, and recommended an orthopedic consult, continued physical therapy, avoiding strenuous activity and heavy lifting, and returning in four weeks. (R. 615-16). The October 2019 EMG results showed no evidence of entrapment neuropathy, but did not rule out the possibility of bilateral SI radiculopathy. (R. 643-44). At a December 5, 2019 visit, Ms. Santana's condition was unchanged and she was instructed by Susan DiStasio, D.O. to restart physical therapy and undergo an orthopedic consult “soon[,]” given her continued inability to bear weight and continued use of the CAM boot. (R. 611-13).

On September 24, 2019, Ms. Popaj completed a medical source statement for Ms. Santana. (R. 605-10). Ms. Popaj indicated that Ms. Santana's pain was “often” severe enough to interfere with her attention and concentration, had a moderate limitation to dealing with work stress, could sit for a maximum of two hours before needing to change position, needed to elevate her left leg while sitting, and could sit for more than six hours per day. (R. 606-07). Ms. Popaj indicated that Ms. Santana could stand or walk for 30 minutes, following which she would need to rest for 30 minutes, and could stand or walk for no more than one hour per day. (R. 607). Ms. Popaj stated that Ms. Santana needed two hours of rest periods during the workday to relieve pain. (R. 607-08). Ms. Popaj noted that Ms. Santana could carry one to five pounds throughout the day, and six to ten pounds occasionally during the day, could stoop and balance occasionally, and could reach, handle, and finger throughout the day. (R. 608-09). Ms. Popaj noted that Ms. Santana required a can to aid in walking and standing. (R. 609). Ms. Popaj estimated that Ms. Santana was likely to be absent from work three times per month due to her impairment. (R. 610).

iii. St. John's Riverside Hospital

On January 23, 2020, Ms. Santana was admitted to St. John's Riverside Hospital for treatment and examination following a syncopal episode that caused her to fall and hit her head. (R. 967-70). She presented with hypertension, schizoaffective disorder, syncope,⁷ and transient loss of consciousness. (R. 969). Testing revealed a lung nodule requiring outpatient follow up. (R. 970).

7 Syncope is fainting, a sudden, brief loss of consciousness and posture caused by decreased blood flow to the brain. See Understanding Fainting - the Basics, WEBMD, https://www.webmd.com/brain/understanding-fainting-basics (last visited July 29, 2022).

iv. Worker's Compensation Examiners

On April 5, 2019, Mitchell Goldstein, M.D. (“Dr. Goldstein”), examined Ms. Santana for workers' compensation purposes. (R. 804-06). Dr. Goldstein noted that Ms. Santana had an antalgic gait and used a CAM boot and cane. (R. 805). He observed decreased sensation in her left foot, slight restriction of inversion and eversion with pain, and marked tenderness over the plantar fascia. (R. 805). Dr. Goldstein opined that Ms. Santana had a moderate disability, due to left ankle internal derangement, sprain, and her status post-left ankle arthroscopy. (R. 805).

On October 8, 2019, Louis McIntyre, M.D. (“Dr. McIntyre”), a Board-Certified orthopedic surgeon, examined Ms. Santana for workers' compensation purposes. (R. 913-15). Ms. Santana complained of left knee pain. (R. 913). Dr. McIntyre noted that swelling, heat, effusion, erythema, crepitus, and deformity were absent. (R. 914). He noted that her range of motion in her left ankle was about 50% of normal range. (R. 914). He concluded that there was “evidence of a moderate[]orthopedic disability[,]” for which he recommended twice-weekly physical therapy for six weeks and an orthopedic reevaluation. (R. 914).

On February 5, 2020, Robert L. Cristofaro, M.D. (“Dr. Cristofaro”), a Board-Certified orthopedic surgeon, examined Ms. Santana for workers' compensation purposes. (R. 1021-25). Dr. Cristofaro noted Ms. Santana's December 15, 2017 work-related accident, which Ms. Santana described as causing a ligament tear, for which she underwent a course of physical therapy, massage therapy, heat treatment, ice treatment, a left heel injection, and surgery on November 16, 2018. (R. 1021). Dr. Cristofaro reported that Ms. Santana said that she could walk without limitation and could sit for one hour before needing to change position due to pain, although her current pain level was 8/10. (R. 1021-23). Dr. Cristofaro observed that Ms. Santana ambulated with a normal gait, and showed “well-healed arthroscopy portals over the anterior aspect” of her left ankle and foot, appreciated swelling, and normal arch appearance, with no instability or atrophy. (R. 1023). The fourth page of Dr. Cristofaro's report, which appears to have contained his opinions, is missing from the record. (See R. 1023-25).

v. Michael Healy, M.D. - SSA Consultative Examiner

On September 26, 2018, SSA consultative examiner Michael Healy, M.D. (“Dr. Healy”) conducted an internal medicine examination of Ms. Santana. (R. 428). Dr. Healy noted that Ms. Santana sustained a severe twist injury to her left ankle in 2017, the initial evaluation of which showed no fracture, but further imaging studies “disclosed multiple muscle tearing injuries as well as possibly tendon tears.” (R. 428). Since the injury, Ms. Santana “has not been able to walk on that foot” and “is only able to walk limping on her forefoot on that left foot.” (R. 428). He noted that “she has difficulty standing, [] or walking any distance, [and] needs to use a cane.” (R. 428). He noted that she expected to undergo surgical repair. (R. 428).

For her daily activities, Dr. Healy noted that she can cook once per week and can shower and dress, but she reported that she cannot clean, launder, or shop, and goes out only for appointments. (R. 429).

As to her appearance, gait, and station, Dr. Healy observed that she was not in acute distress but “can only walk on [her] left foot on [the] forefoot[,]” had a widened gait, shortened stride, and severe limping. (R. 429). He noted that she complained of pain in her left ankle, and could not walk on her heels and toes without difficulty or squat. (R. 429). She did not use an assistive device, but was wearing CAM boot to assist in ambulation. (R. 429). Even with the CAM boot, however, “she still has the limping quality caused by her persistent walking on her forefoot to avoid pain.” (R. 429). She did not need assistance to change for the exam, get on and off the exam table, or rise from a chair. (R. 429). Her left ankle showed a decreased range of motion and was “notably also tender to palpation.” (R. 430). Dr. Healy diagnosed “[s]tatus post severe twist injury left ankle with musculotendinous damage and pain[,]” which, “[w]ith surgery should be good.” (R. 430). He opined that she had “moderate to marked limitation standing, walking, [and] climbing stairs.” (R. 430).

vi. A. Saeed - SSA Agency Consultant

On October 18, 2018, A. Saeed, M.D. (“Dr. Saeed”), repeated the findings from Dr. Healy's report, based on which Dr. Saeed opined that Ms. Santana is limited to a sedentary RFC, with “[e]xertional limitations within/between ranges of work[.]” (R. 92). Dr. Saeed did not make a finding as to her ability to perform past relevant work, but found that she “can adjust to other work.” (R. 91).

b. Mental Impairments

i. La Casa de Salud

Beginning in April 2017, Ms. Santana began treatment at La Casa De Salud (“La Casa”) for severe depression. (R. 325). Previously, she had received psychological treatment at Bella Vista for over 20 years. (R. 326). During her initial examination with Eddie Pabon, LCSW (“Mr. Pabon”) on April 11, 2017, Ms. Santana described increasing anxiety and panic attacks that started approximately five years before and cause light-headedness, sweating, trembling, racing heartbeat, and trouble sleeping. (R. 326, 329). During her panic attacks, she could not communicate or express herself. (R. 326). She referenced her 2004 suicide attempt after which her marriage ended and her depression seemed to begin, a 2008 hospitalization for hallucinations, and her 2014 hospitalization for an acute panic attack, “which ended in a mild stroke.” (R. 326). She has been diagnosed with ADHD/ADD, a developmental disability, and dyslexia. (R. 326). Ms. Santana described symptoms of lack of motivation, feeling down, sad, depressed, hopeless, worthless, and very emotional, sleep and appetite disturbance, trouble concentrating, restlessness, and feeling that she would be better off dead. (R. 326). Her anxiety symptoms include “feeling afraid that something awful will occur, feeling nervous and on edge, being easily annoyed, restlessness, trouble relaxing, and uncontrollable worrying[.]” (R. 326).

Her PHQ-9 (“Patient Health Questionnaire”)⁸ score was 20, indicating severe depression, and her GAD-7 (“Generalized Anxiety Disorder”)⁹score was 14, indicating moderate anxiety. (R. 326).

8 “The PHQ-9 is a multipurpose instrument for screening, diagnosing, monitoring and measuring the severity of depression.” Patient Health Questionnare-9 (PHQ-9), NATIONAL HIV CURRICULUM, https://www.hiv.uw.edu/page/mental-health-screening/phq-9 (last visited July 29, 2022). Total scores of 5, 10, 15, and 20 are significant metrics for evaluating mild, moderate, moderately severe, and severe depression, respectively. Id.

9 “The Generalized Anxiety Disorder 7-item (GAD-7) is a[n] easy to perform initial screening tool for generalized anxiety disorder).]” Generalized Anxiety Disorder 7-item (GAD-7), NATIONAL HIV CURRICULUM, https://www.hiv.uw.edu/page/mental-health-screening/gad-7 (last visited July 29, 2022). Scores between zero and four indicate minimal anxiety, five through nine indicate mild anxiety, ten through fourteen indicate moderate anxiety, and scores greater than 15 illustrate severe anxiety. Id.

Mr. Pabon concluded that Ms. Santana had major depressive disorder, single episode, severe, with psychiatric features, and panic disorder. (R. 329). He noted that her depression and anxiety were consistent with dysthymic disorder, and that she could benefit “from psychiatric evaluation to access psychotropic medication needs” and “psychotherapy to identify coping skills and improve mood, behavior[,] and functioning.” (R. 328-29). Ms. Santana agreed to meet with a psychiatrist for evaluation and a social worker for psychotherapy. (R. 329).

At ensuing visits during 2017, Ms. Santana described hearing voices that sounded like whispers or static, and seeing visual hallucinations, which she found very disturbing and made her feel fearful. (R. 332-33). The visual hallucinations included images of dead people and animals. (R. 335). She described an experience at work during which she had a conversation with a person who was not there and who, she later learned, had died earlier that day in a car accident. (R. 335). During a July 28, 2017 session, she shared that, in 1993 she was raped at gunpoint. (R. 335-36). During that same session, she saw a woman standing behind Mr. Pabon.

(R. 336, 370). Ms. Santana was then prescribed the following medication regimen: Prozac (20mg),¹⁰ Remeron (15mg),¹¹Buspirone (10mg),¹²and Risperdal (1mg).¹³(R. 337).

10 Prozac is the brand name for fluoxetine, which is used to treat depression, panic attacks, and other mood disorders. See Prozac Capsule - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-6997/prozac-oral/details (last visited July 29, 2022).

11 Remeron is the brand name for mirtazapine, which is used to treat depression. See Remeron Tablet,[]Disintegrating - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-13707/remeron-oral/details (last visited July 29, 2022).

12 Buspirone is a medication to treat anxiety. See Buspirone HCL - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-8876/buspirone-oral/details (last visited July 29, 2022).

13 Risperdal is a medication used to treat mood disorders. See Risperdal - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-9846/risperdal-oral/details (last visited July 29, 2022).

Ms. Santana continued treatment at La Casa in 2018. (R. 339-55). Ms. Santana described being depressed due to her inability to go back to work and her daughter's impending departure for college. (R. 340-44). She shared that she had been seeing dead people for many years, and heard voices and saw spirits or shadows. (R. 340, 345, 349). Her depression and anxiety symptoms remained the same as in 2017, while her PHQ-9 score was 24 and her GAD-7 score was 4. (R. 340, 345). She denied suicidal or homicidal ideations during some visits, but acknowledged them during others. (Compare R. 347 with R. 349). She was directed to a psychiatric evaluation and psychotherapy. (R. 341). During a mental status examination on September 19, 2018, Ms. Santana's mood and affect were depressed, her speech and thought were clear, her thought content was self-deprecatory, her intelligence was borderline, and her ability to make reasonable decisions was mildly impaired. (R. 351-52). The examination noted that her delusional thoughts included predicting events such as death, and she had auditory and visual hallucinations. (R. 351). On that date, she was directed to continue therapy and her medication regimen was modified to: Remeron (15mg), Cymbalta (20mg),¹⁴ and Zyprexa (5mg).¹⁵(R. 351-53). During a December 21, 2018 visit, Ms. Santana described her mood as “not good” due to poor sleep and feeling anxious, and felt that her medications were “not working.” (R. 355). Her medication regimen was modified to: Remeron (15mg), Zyprexa (5mg), Ambien (10mg),¹⁶ Vistaril (25mg),¹⁷and Cymbalta (20mg). (R. 355). By November 2018, her mood had improved and she was experiencing no overt psychotic symptoms. (R. 601). Her medications were changed to discontinue Vistaril and Ambien. (R. 601). In December 2018, her mood had deteriorated due to lack of sleep and anxiety, but she remained stable and was not experiencing overt psychotic symptoms. (R. 603). Her medications were changed, again, to re-introduce Vistaril and Ambien. (R. 603).

14 Cymbalta is the brand name for duloxetine, which is used to treat depression and anxiety. See Cymbalta - Uses, Side Effects, and More, WEBMD, https://www.webmd.eom/drugs/2/drug 91491/cymbalta-oral/details (last visited July 29, 2022).

15 Zyprexa is the brand name for olanzapine, which is used to treat mood conditions and, in combination with other medications, depression. See Zyprexa - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-1699/zyprexa-oral/details (last visited July 29, 2022).

16 Ambien is the brand name for zolpidem, which is used to treat certain sleep problems, including insomnia. See Ambien - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-9690/ambien-oral/details (last visited July 29, 2022).

17 Vistaril is the brand name for hydroxyzine, which is used to treat allergic reactions. See Vistaril - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-6144/vistaril-oral/details (last visited July 29, 2022); see ECF No. 18 at 10 n.12.

At a March 6, 2019 visit to her primary care provider, Angela King, M.D. (“Dr. King”), Ms. Santana requested to change providers due to poor communication with La Casa, whom, she felt, was “not being efficient assisting her with” her disability application. (R. 724). Dr. King performed a mental status examination, and found Ms. Santana oriented, cooperative, attentive, and having clear speech and thought process, but with a depressed, sad, uneasy, and anxious mood and “passive” suicidal ideations. (R. 724-25). Dr. King noted that Ms. Santana described auditory and visual hallucinations, and assessed that she needed supportive intervention. (R. 725). At Dr. King's encouragement, Ms. Santana decided to keep her next appointment with La Casa. (R. 725).

ii. New York Psychotherapy and Counseling Center

In early 2019, Ms. Santana began treatment at New York Psychotherapy and Counseling Center (“NYPCC”). (R. 440, 519). During her screening session on March 27, 2019, Ms. Santana shared that she was the victim of domestic violence perpetrated by the father of her children. (R. 453, 520). She described having daily hallucinations and delusions involving voices and images of a daughter who died during childbirth. (R. 453). She acknowledged having suicidal ideations and attempts, the first of which was 20 years before and the most recent in 2015. (R. 453, 525). She was diagnosed with major depressive disorder with psychological features and panic disorder. (R. 459, 524). Her clinical needs were treatment to stabilize her mood, address triggers to the hallucinations and anger, learn anger management techniques, address isolation, engage in social activities to establish a healthy support system, and address triggers to suicidal ideations. (R. 524). The treatment plan included individual psychotherapy, psychotropic medication, and psychiatric assessment. (R. 524).

During an April 2019 treatment session with Carlin De La Rosa, MSW (“Ms. De La Rosa”), Ms. Santana was in a calm, cooperative mood, and did not express suicidal intent, ideation, or plan. (R. 526). She expressed concerns about her finances due to her inability to work, and expressed feelings of low self-worth and negative labeling. (R. 526). She subsequently missed several sessions due to her ankle surgery. (R. 528-33).

During May 2019 treatment sessions, Ms. Santana described cutting herself and expressed feelings of negative self-worth, but did not express suicidal intent, ideation, or plan. (R. 508, 534-35). On May 28, 2019, Ms. Santana was in a stressed mood, but did not exhibit any psychotic features. (R. 536). The same day, James Dusenbery, PNP (“Mr. Dusenbery”), performed a psychiatric evaluation, noting her poor sleep, appetite, and concentration, her mood “all over the place,” irritability, and poor frustration tolerance, but absence of suicidal ideation or intent. (R. 538). He recommended continuing psychotherapy and modified her medication regimen to Mirtazapine (7.5mg), Aripiprazole (Ablify) (5mg),¹⁸ and Hydroxyzine HCl (10mg). (R. 539).

18 See ECF No. 18 at 10 n.11.

In June 2019, Ms. Santana's mood was “down,” and she continued to suffer “severe negative thought patterns,” but did not exhibit psychotic features. (R. 543-44). Mr. Dusenbery re-evaluated her medications, noting that she reported “no therapeutic effects” and continued depression, poor sleep, and irritability, and so increased her Ablify (Aripiprazole) to 15mg. (R. 545). In July 2019, Ms. Santana continued to experience hallucinations, depression, panic attacks, suicidal ideation, irregular sleep, feeling disconnected, and isolation, and was assessed as a high risk of harm to herself. (R. 516-17, 548-49, 849-50). During some sessions, however, she did not exhibit suicidal intent and appeared calmer. (R. 551, 555, 557). Mr. Dusenbery did not modify her medication regimen. (R. 553).

In August 2019, Ms. Santana's hallucinations resumed, and she described seeing dark figures surrounding her. (R. 558). She did not exhibit suicidal ideation, but she was nervous and stressed due to a toxic relationship, her finances, and negative thought patterns. (R. 557, 559, 563). Following a “tearful” interview, Mr. Dusenbery started her on a course of Klonopin (Clonazepam) for one month.¹⁹(R. 561). On August 20, 2019, Ms. Santana displayed a “happy mood” and did not exhibit suicidal ideation. (R. 567).

19 Klonopin is the brand name for clonazepam, which is used to treat, inter alia, panic attacks. See Klonopin - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-920-6006/klonopin-oral/clonazepam-oral/details (last visited July 29, 2022).

In September 2019, Ms. Santana reported continued anxiety, but did not exhibit suicidal ideation. (R. 572-74). Mr. Dusenbery noted that she was “responding well” to her medication regimen, and continued the Klonopin for another month. (R. 574). In a September 24, 2019 visit, Ms. Santana reported that had not been sleeping well, and Ambien was not helping. (R. 441). An assessment in October 2019 noted that she continued to suffer from hallucinations, depression, panic attacks, suicidal ideation, irregular sleep, isolation, and explosive anger, and had a history of self-harm and remained a high risk of harm to herself. (R. 857-58). At an October 8, 2019 therapy session, Ms. Santana presented in a happy mood with no psychotic features. (R. 870). Mr. Dusenbury performed a mental status examination on October 15, 2019, which showed her to be anxious but without suicidal ideation or hallucinations. (R. 874). He increased her Klonopin dosage at that time. (R. 874). On October 29, 2019, Ms. Santana's anxiety had lessened and the medication was helping. (R. 879).

In December 2019, Ms. Santana responded, in a patient health questionnaire, that nearly every day she had little interest in doing things, felt down, had trouble sleeping, felt tired, felt bad about herself, and had trouble concentrating. (R. 842). She had a poor appetite more than half the time, and on several days, thought she would be better off dead or about hurting herself. (R. 842). She asserted that these problems made it very difficult to take care of things at home or get along with other people. (R. 842). In a December 3, 2019 mental status examination, Mr. Dusenbury noted that Ms. Santana's behavior and affect were sad, but she denied hallucinations or suicidal ideation. (R. 893-94).

A January 2020 assessment noted that she continued to suffer from hallucinations, depression, panic attacks, suicidal ideation, irregular sleep, isolation, and explosive anger, and had a history of self-harm and remained at high risk of hurting herself. (R. 865). Ms. Santana reported to Ms. De La Rosa that she was in a down mood and had negative thoughts, but denied thoughts about self-harm. (R. 901-02). In a January 7, 2020 mental status examination, Mr. Dusenbury noted that her behavior and affect were sad, but that she denied hallucinations or suicidal ideation. (R. 905). Ms. De La Rosa observed that Ms. Santana had made progress in her goal to stop damaging behaviors of cutting and other negative thoughts. (R. 860, 907-08).

iii. Stephen Kildare, Psy.D. - SSA Consultative Examiner

On September 26, 2018, SSA consultative examiner Stephen Kildare, Psy.D. (“Dr. Kildare”) performed a psychiatric examination of Ms. Santana. (R. 432). He noted that she was educated to the ninth grade and received special education services. (R. 432). At the time, she was seeing a therapist and psychiatrist at La Casa every two weeks. (R. 432).

Her psychiatric history included treatment at Lincoln Hospital in 2008 for hallucinations, at Bronx-Lebanon Hospital in 2014 for a panic attack and stroke, in 2015 for a minor heart attack, and in 2017 for an allergic reaction. (R. 432). He noted that she took the following medications once daily: Buspirone (10mg), Mirtazapine (15mg), Olanzapine (5mg), and Duloxetine HCl (20mg). (R. 432).

As to her current functioning, Dr. Kildare observed that she has difficulty falling and staying asleep, loss of appetite, depressive symptomatology including dysphoric moods, crying spells, feelings of hopelessness, loss of self-esteem, loss of interest, fatigue, loss of energy, and concentration difficulties. (R. 433). Ms. Santana denied any suicidal or homicidal ideation. (R. 433). He noted that her anxiety symptomatology included excessive apprehension, worry, restlessness, and difficulty concentrating. (R. 433). She described having panic attacks including palpitations, sweating, trembling, and hot flashes, and reported auditory hallucinations that were “somewhat benign.” (R. 433). She heard noises in her house and people saying things that made her feel worthless. (R. 433). She has also had visual hallucinations of people speaking to her, and “evil spirits” telling her to “go to the other side[.]” (R. 433). Her cognitive symptomatology included concentration difficulties, receptive language difficulties, difficulties learning new material, long-term memory deficits, word-finding deficits, disorientation, planning difficulties, and sequencing difficulties. (R. 433).

For her mental status examination, Dr. Kildare found her cooperative and her manner of relating adequate. (R. 434). Ms. Santana was fairly groomed, had normal posture and motor behavior, and appropriate eye contact. (R. 434). Her speech was fluent and clear, but Dr. Kildare noted that her receptive language was poorly developed. (R. 434). During the examination, Ms. Santana had visual hallucinations, in which she saw three people standing behind Dr. Kildare telling her that he needed to go to the doctor and “should not be stubborn about going to the doctor.” (R. 434). Her affect and mood were anxious, and although she was oriented to person, place and time, her attention were “[m]ildly impaired due to anxiety in the evaluation setting.” (R. 434). She was able to count from one to ten and count serial threes, but could solve only one of three simple calculations and could not count serial sevens. (R. 434). Dr. Kildare noted that her recent and remote memory skills were mild impaired due to anxiety, but she was able to remember four digits forward and three digits backward. (R. 434). He found her cognitive functioning to be below average and her general fund of information somewhat limited, while her insight and judgment were both fair. (R. 435).

As to her daily living, Dr. Kildare noted that Ms. Santana dress, bathed, groomed, cooked and prepared food, do general cleaning and laundry with limitations, shop, manage her money, take public transportation, socialize with friends and a neighbor, and maintain relationships. (R. 435). Her hobbies included decorating and sewing, and she spent her days lying down, watching television, looking at the walls, and talking on the phone. (R. 435).

Dr. Kildare then opined that Ms. Santana had mild limitations in her abilities to understand, remember, or apply simple directions and instructions; use reason and judgment to make work-related decisions; and regulate emotions, control behavior, and maintain well-being. (R. 435-36). He opined that she had moderate limitations in her abilities to understand, remember, or apply complex directions and instructions, and sustain concentration and perform a task at a consistent pace. (Re. 435-36). He opined that she had no limitations in her abilities to interact adequately with supervisors, coworkers, and the public, sustain an ordinary routine and regular attendance at work, and maintain personal hygiene and appropriate attire, awareness of normal hazards, and taking appropriate precautions. (R. 435-36). He opined that her difficulties were “caused by lack of motivation and psychiatric symptoms[,]” and that her psychiatric and cognitive problems did “not appear to be significant enough to interfere with [her] ability to function on a daily basis.” (R. 436). His diagnosis was unspecified schizophrenia spectrum and other psychotic disorder, and unspecified depressive disorder. (R. 436). He recommended that she continue with current psychological and psychiatric treatment, which he expected her to need for more than one year, and gave her a fair prognosis. (R. 436).

iv. O. Fassler - SSA Agency Consultant

On October 17, 2018, O. Fassler, Ph.D. (“Dr. Fassler”), found, based on Dr. Kildare's report, that Ms. Santana had the medically determinable impairments of depression and anxiety that did “not precisely satisfy” the “paragraph A” criteria of Listings 12.04 and 12.06, and that she had only mild limitations to understanding, remembering or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing herself. (R. 87). Dr. Fassler assessed that her statements regarding her symptoms were partially consistent with the record evidence, and that her statements concerning the intensity, persistence, and limiting effects of her symptoms were “generally not consistent with the evidence of record.” (R. 88).

C. Administrative Proceedings

1. The Hearing

Ms. Santana testified about the physical and mental impairments that prevented her from working. She described how, in the middle of the night on January 23, 2020, she experienced a severe headache, nausea, shortness of breath, and unconsciousness, for which she was taken to the hospital for an MRI, which showed that “everything was good[.]” (R. 48-49). This was the third such episode she experienced. (R. 68). She described that she was about to undergo radiation and surgery for breast cancer. (R. 50-51).

Ms. Santana testified that, on December 15, 2017, she injured her left foot while working in the bakery, causing her to stop working. (R. 52). Despite two surgeries, one on her ankle and one on the lower foot, Ms. Santana “still feel[s] the sharp pain and [] cannot put [her] foot flat.” (R. 53). At the hearing, Ms. Santana was wearing a CAM boot on her foot and using a cane, both of which she uses at all times, inside and outside her home. (R. 53-54). Ms. Santana had also undergone physical therapy and pain management. (R. 54-55). She also experienced back pain due to the way she leaned on her foot, and was uncomfortable sitting down. (R. 56-57). She described experiencing, during the hearing, a “stabbing” pain in her back and lower feet at a level nine out of ten. (R. 61). She estimated that she could stand for 30-45 minutes at a time. (R. 58). At the time of the hearing, she was scheduled to have an injection for the pain in her ankle. (R. 71-72). She could walk two or three blocks without stopping, and has trouble sitting up to 30 minutes at a time. (R. 72-73).

Ms. Santana testified that she took four psychiatric medications and one pain medication each day. (R. 55-56). She did not take her medications on the day of the hearing because she wanted to be more alert. (R. 61). The medications caused her to stutter, feel anxious, “very droopy[,]” and unable to speak. (R. 61, 63). At one point during the hearing, Ms. Santana had to pause during the questioning to compose herself. (R. 61-62).

Ms. Santana testified that her mental problems prevented her from working. (R. 62). She was unable to recall the names of the mental conditions with which she had been diagnosed. (R. 62-63). She had been receiving psychiatric treatment since about 2010, when she was first prescribed Wellbutrin.²⁰ (R. 63). She testified that she heard voices and saw “shadows” that are “always there[,]” which made her feel embarrassed, and had panic attacks when she was at work.

20 Wellbutrin is the brand name for bupropion, which is used to treat depression. See Wellbutrin 75 Mg Tablet - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-13509/wellbutrin-oral/details (last visited July 29, 2022).

(R. 64-65). During the hearing, Ms. Santana saw “shadows.” (R. 64-65). Ms. Santana acknowledged that she had suicidal thoughts in the past. (R. 65). As a result of her psychiatric problems, Ms. Santana isolated herself and did not socialize with friends, although she does socialize with her family. (R. 65-66). She has trouble sleeping and difficulty remembering instructions in a work situation. (R. 66-67).

Ms. Santana testified that she could lift around five pounds and had no problems dressing herself, but could only shower, not bathe. (R. 59). Her sisters helped her with laundry, shopping, and cooking. (R. 60). She was living in a fifth-floor apartment with her then-19 year-old daughter. (R. 70).

The ALJ agreed to hold the record open for Ms. Santana to submit additional records. (R. 73-74; see R. 840-1029). No vocational expert (“VE”) testified at the Hearing.

2. The ALJ Decision and Appeals Council Review

On April 7, 2020, ALJ Kanner issued his Decision finding Ms. Santana not disabled and denying her application for SSI benefits. (R. 15-31). The ALJ followed the five-step disability determination process. 20 C.F.R. § 416.920(a)(4)(i-v). (R. 16-25). At step one, ALJ Kanner determined that Ms. Santana had not engaged in substantial gainful activity since August 1, 2018, the application date. (R. 17). At step two, the ALJ determined that she had two severe impairments, depressive disorder and status-post left foot/left ankle surgery, both of which significantly limited her ability to perform basic work activities. (R. 17).

At step three, ALJ Kanner determined that neither of Ms. Santana's impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, 20 C.F.R. §§ 416.920(d), 416.925 and 416.926 (the “Listings”). (R. 18). In evaluating Ms. Santana's physical impairment, the ALJ determined that Ms. Santana's left foot and ankle did not satisfy the requirement of Listing 1.02 (which addresses major dysfunction of a joint), because she did not have a gross anatomical deformity, chronic pain and stiffness, signs of limitation of motion or abnormal motion supported by medical imaging. (R. 18). In evaluating Ms. Santana's psychiatric disorders, the ALJ determined that the “paragraph B” criteria for Listing 12.04 was not met because her mental impairment did not cause at least two “marked” limitations or one “extreme” limitation. (R. 19). Instead, ALJ Kanner found that Ms. Santana had only mild or moderate limitations in: understanding, remembering or applying information; fair insight and judgment; recent and remote memory skills; attention and concentration skills; interacting with others; concentrating, persisting or maintaining pace; and adapting or managing herself. (R. 18-19). The ALJ noted that, despite her score of 20 on the PHQ-9 test indicating severe depression and 14 on the GAD-7 test indicating moderate anxiety, Ms. Santana stated that her medications were effective in controlling her mental symptoms, that there was no evidence of current hallucinations. (R. 18-19). The ALJ also found that the record did not contain evidence of the “paragraph C” criteria, i.e., a two-year period of treatment for severe mental health diagnosis. (R. 19).

Before moving to step four, the ALJ assessed Ms. Santana's RFC, finding that she had the RFC to perform sedentary work as defined in 20 C.F.R. § 416.967(a), with the limitations of simple, routine instructions and tasks. (R. 19). This assessment was based on a review of medical evidence, physical examinations, and her testimony. (R. 19-23). With respect to Ms. Santana's physical impairment, the ALJ acknowledged that she had torn a ligament in her left ankle in December 2017, for which she underwent surgery in April 2019 and used a CAM boot and cane, but noted that there was “no significant tenderness . . . over the medial or lateral malleoli, and no muscle atrophy.” (R. 20). He also noted that, in February 2020, Ms. Santana stated that she could walk without limitation and sit for an hour before having to change position, was no longer using an assistive device, experienced pain 8/10, and presented with swelling, but ambulated with a normal gait and did not show instability or atrophy. (R. 20).

The ALJ evaluated the medical opinions of Dr. Cristofaro, Dr. Healy, Dr. Saeed, Ms. Popaj, and Dr. M. Ahmed concerning her physical impairment. (R. 22). The ALJ found persuasive Dr. Cristofaro's opinion that she had no limits in walking and can sit for an hour before changing positions, which was consistent with Ms. Santana's statements during her examination that she could walk without limitation and sit for an hour before changing position and evidence that she had no instability or muscle atrophy and ambulated with a normal gait without an assistive device. (R. 22). The ALJ found slightly persuasive Dr. Healy's opinion that she had a moderate-to-marked limitation to standing, walking, and climbing stairs because his opinion pre-dated her surgery and therefore did not represent her current functioning. (R. 22). The ALJ found persuasive Dr. Saeed's opinion that she was limited to a sedentary RFC because it was consistent with her statements, testimony at the Hearing, record evidence, and Dr. Cristofaro's opinion. (R. 22). The ALJ found partially persuasive Ms. Popaj's opinion that she would need to lie down for two hours every day causing her to miss three days of work per month, because it was inconsistent with Ms. Santana's “statements that she can walk without limitations in 2020[.]” (R. 22). The ALJ found unpersuasive Dr. M. Ahmed's opinion²¹due to his failure to complete the form and reference only to his treating notes. (R. 22). The ALJ found Dr. M. Ahmed's opinion that Ms. Santana should avoid prolonged standing, walking, and climbing “only partially persuasive” as supported by the evidence of her surgery, decreased range of motion, and decreased strength in her left lower extremity (R. 23 (citing R. 612, 804)), but inconsistent with her statement that she could walk without limitation. (R. 23 (citing R. 816-18, 1022-23)).

21 The ALJ does not specify which opinion he finds unpersuasive here. (R. 22).

As to Ms. Santana's credibility, the ALJ found that her statements about the intensity, persistence, and limiting effects of her physical symptoms inconsistent with the longitudinal medical evidence that showed that her impairments were controlled with conservative and infrequent treatment and medication. (R. 21-22).

With respect to Ms. Santana's psychiatric impairment, the ALJ found that her panic attacks and hallucinations had abated over “the last several years[,]” (R. 21 (citing R. 325-427, 432-37, 432-37, 440-582, 814-19)), and that, since May 2019, she “denied hallucinations with rare exception[,]” (R. 21 (citing R. 543, 548, 551, 556, 563, 572)), and “was responding well to the regimen[.]” (R. 21 (citing R. 574)). He also noted that in July 2019, Ms. Santana stated that her medications were effective in controlling her mental symptoms, although, he noted, in March 2019 she exhibited self-harmful intent and in January 2020, was anxious about possible upcoming breast cancer surgery. (R. 21 (citing (R. 453, 553, 816, 905)). The ALJ considered the opinions of Dr. Kildare and Dr. Fassler as to her psychiatric impairment. (R. 23). The ALJ found persuasive Dr. Kildare's opinion that she had no limitation in her ability to interact with others and moderate limitation in her ability to understand, remember, or apply instructions and her ability to sustain concentration and perform a task at a consistent pace, and could perform simple work, as consistent with Ms. Santana's statements that her medications were effective in controlling her symptoms in July 2019. (R. 23 (citing R. 432-37, 553, 359-60)). The ALJ found partially persuasive Dr. Fassler's opinion that Ms. Santana had no more than mild limitations in the four mental functional domains because it was “not entirely consistent with the more conservative evidence from [the] mental examinations.” (R. 23 (citing R. 87, 432-37, 359-60)).

At step four, the ALJ determined that Ms. Santana did not have the RFC to perform her past relevant work as a fabric assembler, caretaker, and baker helper, each of which required light to medium levels of strength. (R. 23). At step five, the ALJ determined that based on Ms. Santana's age, education, work experience, and RFC, jobs existed in significant numbers in the national economy that she can perform, although the ALJ did not specify what these positions were. (R. 24). Rather, citing Rule 201.18 of the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the “grids”),²²the ALJ found that “the additional limitations of simple, routine instructions and tasks, have little or no effect on the occupational base of unskilled sedentary work[,]” and therefore, “[a] finding of ‘not disabled' is . . . appropriate.” (R. 24).

22 Rule 201.18 provides that an individual age 45-49 (a “younger individual”) who unskilled and has limited or marginal education but is not illiterate is “[n]ot disabled.” 20 C.F.R. Part 404, Subpart P, Appendix 2, § 201.18.

On December 10, 2020, the Appeals Council denied Ms. Santana's request for review. (R. 1-6).

III. LEGAL STANDARDS

A. 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. Id. 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. § 416.912(b)(1). 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), adopted by, 2008 WL 461375 (S.D.N.Y. Feb. 20, 2008). 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. § 416.920b.

The Act authorizes the Court 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 may 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.

B. Eligibility for Benefits

For purposes of SSI benefits, one is “disabled” within the meaning of the Act, and thus entitled to such benefits, when he or 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) diagnosis 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. § 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 he is 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 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 23 (2d Cir. 1983)).

At the first four steps, the claimant bears the burden of proof, and 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). As discussed further below, (see § IV.C.1, infra), in meeting the burden of proof at the fifth step, the Commissioner may usually rely on the grids. See Zorilla v. Chater, 915 F.Supp. 662, 666-67 (S.D.N.Y. 1996).

C. Evaluation of Medical Opinion Evidence

For benefits applications filed before March 27, 2017, the SSA's regulations required an ALJ to give more weight to those physicians with the most significant relationship with the claimant. See 20 C.F.R. § 416.927; see also Taylor v. Barnhart, 117 Fed.Appx. 139, 140 (2d Cir. 2004). Under this “[T]reating [P]hysician [R]ule,” an ALJ was required to “give good reasons[,]” Kevin E. v. Comm'r of Soc. Sec., No. 19 Civ. 593 (EAW), 2021 WL 1100362, at *4 (W.D.N.Y. Mar. 23, 2021) (quoting former 20 C.F.R. § 404.1527(c)(2)), if he or she determined that a treating physician's opinion was not entitled to “controlling weight,” or, at least, “greater weight” than the opinions of non-treating and non-examining sources. Gonzalez v. Apfel, 113 F.Supp.2d 580, 588-89 (S.D.N.Y. 2000). In addition, under the Treating Physician Rule, a consultative physician's opinion was generally entitled to “little weight.” Giddings v. Astrue, 333 Fed.Appx. 649, 652 (2d Cir. 2009) (quoting Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990)).

On January 18, 2017, the SSA published comprehensive revisions to the regulations regarding the evaluation of medical evidence, revisions that were applicable to applications filed on or after March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 F. R. 5844-01, 2017 WL 168819 (Jan. 18, 2017). These new regulations reflect a departure from a perceived hierarchy of medical sources. See id. The regulations now provide that an ALJ need “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.”²³ 20 C.F.R. § 416.920c(a). See Young v. Kijakazi, No. 20 Civ. 03604 (SDA), 2021 WL 4148733, at *9 (S.D.N.Y. Sept. 13, 2021). Instead, an ALJ must consider all medical opinions in the record and “evaluate the persuasiveness” based on five “factors”: (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) any “other” factor that “tend[s] to support or contradict a medical opinion.” 20 C.F.R. § 416.920c(a)-(c)(1)-(5).

23 The new regulations define “prior administrative medical finding” as:

[A] finding, other than the ultimate determination about whether you are disabled, about a medical issue made by our Federal and State agency medical and psychological consultants at a prior level of review (see § 416.1400) in your current claim based on their review of the evidence in your case record, such as: (i) The existence and severity of your impairment(s); (ii) The existence and severity of your symptoms; (iii) Statements about whether your impairment(s) meets or medically equals any listing in the Listing of Impairments in Part 404, Subpart P, Appendix 1; (iv) If you are a child, statements about whether your impairment(s) functionally equals the listings in Part 404, Subpart P, Appendix 1; (v) If you are an adult, your [RFC]; (vi) Whether your impairment(s) meets the duration requirement; and (vii) How failure to follow prescribed treatment (see § 416.930) and drug addiction and alcoholism (see § 416.935) relate to your claim.

20 C.F.R. § 416.913(a)(5).

The ALJ's duty to articulate a rationale for each factor varies. 20 C.F.R. § 416.1520c(a)-(b). Under the new regulations, the ALJ must “explain,” in all cases, “how [he or she] considered” both the supportability and consistency factors, as they are “the most important factors.” Id. § 416.920c(b)(2); see Young, 2021 WL 4148733, at *9 (describing supportability and consistency as “the most important” of the five factors); Amber H. v. Saul, No. 20 Civ. 490 (ATB), 2021 WL 2076219, at *4 (N.D.N.Y. May 24, 2021) (noting that the two “most important factors for determining the persuasiveness of medical opinions are consistency and supportability,” the “same factors” on which the Treating Physician Rule was based); Rivera v. Comm'r of the Soc. Sec. Admin., No. 19 Civ. 4630 (LJL) (BCM), 2020 WL 8167136, at *13 (S.D.N.Y. Dec. 30, 2020), (explaining that supportability and consistency are the “most important” factors under 20 C.F.R. § 416.920c(c)). As to supportability, “the strength of a medical opinion increases as the relevance of the objective medical evidence and explanations presented by the medical source increase.” Vellone v. Saul, No. 20 Civ. 261 (RA) (KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021) (citing 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1)); see Rivera, 2020 WL 8167136, at *16 (noting that supportability “has to do with the fit between the medical opinion offered by the source and the underlying evidence and explanations ‘presented' by that source to support [his or] her opinion”) (quoting 20 C.F.R. § 416.920c(c)(1)). Consistency “is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record.” Vellone, 2021 WL 319354, at *6.

As to the three remaining factors-relationship with the claimant, specialization, and “other”-the ALJ is required to consider, but need not explicitly discuss, them in determining the persuasiveness of the opinion of a medical source. 20 C.F.R. § 416.920c(b)(2). If the ALJ finds two or more medical opinions to be equally supported and consistent with the record, but not identical, the ALJ must articulate how he or she considered those three remaining factors. See id. § 416.920c(b)(3).

Thus, “[a]lthough the new regulations eliminate the perceived hierarchy of medical sources, deference to specific medical opinions, and assigning ‘weight' to a medication opinion, the ALJ must still ‘articulate how [he or she] considered the medical opinions' and ‘how persuasive [he or she] find[s] all of the medical opinions.'” Andrew G. v. Comm'r of Soc. Sec., No. 19 Civ. 942 (ML), 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (quoting 20 C.F.R. §§ 416.920c(a), (b)(1)). “The ALJ need not discuss all of the factors described in the regulations but must, as to each opinion or prior administrative medical finding, ‘explain how [he or she] considered the supportability and consistency factors.” Rivera, 2020 WL 8167136, at *14 (quoting 20 C.F.R. § 416.920c(b)(2)). “If the ALJ fails adequately to ‘explain the supportability or consistency factors,' or bases [his] explanation upon a misreading of the record, remand is required.” Id. (quoting Andrew G., 2020 WL 5848776, at *9)).

Several opinions among the district courts within the Second Circuit applying the new regulations have concluded that “the factors to be considered in weighing the various medical opinions in a given claimant's medical history are substantially similar” to the former Treating Physician Rule. Acosto Cuevas v. Comm'r of Soc. Sec., No. 20 Civ. 502 (AJN) (KHP), 2021 WL 363682, at *9 (S.D.N.Y. Jan. 29, 2021) (surveying district court cases in the Second Circuit considering the new regulations); see Prieto v. Comm'r of Soc. Sec., No. 20 Civ. 3941 (RWL), 2021 WL 3475625, at *9 (S.D.N.Y. Aug. 6, 2021) (noting that under both the Treating Physician Rule and the new regulations, “an ALJ's failure to properly consider and apply the requisite factors is grounds for remand”); Dany Z. v. Saul, No. 19 Civ. 217 (WKS), 2021 WL 1232641, at *12 (D. Vt. Mar. 31, 2021) (surveying Second Circuit district courts that “have concluded that the factors are very similar to the analysis under the old [Treating Physician] [R]ule”); Andrew G., 2020 WL 5848776, at *5 (noting that “consistency and supportability” were “the foundation of the treating source rule”); see also Brianne S. v. Comm'r of Soc. Sec., No. 19 Civ. 1718 (FPG), 2021 WL 856909, at *5 (W.D.N.Y. Mar. 8, 2021) (remanding to ALJ with instructions to provide explicit discussion of supportability and consistency of two medical opinions, because ALJ's “mere[] state[ment]” that examining physician's opinion was not consistent with overall medical evidence was insufficient).

D. 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. § 416.929(c)(3). 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. § 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); see also Taylor v. Barnhart, 83 Fed.Appx. 347, 35051 (2d Cir. 2003). “An ALJ's credibility finding as to the claimant's disability is entitled to deference by a reviewing court.” Rivera v. Berryhill, No. 17 Civ. 991 (JLC), 2018 WL 4328203, at *10 (S.D.N.Y. Sept. 11, 2018). That deference is due “because the ALJ had the opportunity to observe plaintiff's demeanor while [the plaintiff was] testifying.” Marquez v. Colvin, No. 12 Civ. 6819 (PKC), 2013 WL 5568718, at *7 (S.D.N.Y. Oct. 9, 2013). Thus, a district court will not “second-guess” the ALJ's credibility finding “where the ALJ identified specific record-based reasons for his ruling,” Stanton v. Astrue, 370 Fed.Appx. 231, 234 (2d Cir. 2010), and where the ALJ's credibility finding is supported by substantial evidence. See Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013) (declining to review ALJ's credibility finding where the ALJ “set forth specific reasons why she found [the plaintiff's] testimony not credible”). If the ALJ rejects the claimant's testimony as not credible, the ALJ must set forth the basis for that finding “with sufficient specificity to permit intelligible plenary review of the record.” Williams, 859 F.2d at 260-61. The ALJ may not base his credibility determination “on unsupported interpretations of raw medical evidence or mischaracterizations of the record.” Rivera, 2020 WL 8167136, at *20.

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. § 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)). 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; 20 C.F.R. § 416.929(c)(3). If the ALJ does not follow these steps, remand is appropriate. Sanchez, 2010 WL 101501, at *15.

IV. DISCUSSION

A. The Parties' Arguments

1. Ms. Santana's Arguments

Ms. Santana advances two arguments in support of overturing the ALJ Decision. First, she argues that the ALJ's RFC finding is inconsistent with the medical evidence. (ECF No. 18 at 2325). With respect to her mental impairment, she asserts that the ALJ overlooked evidence that she reported hallucinations a month before the Hearing, her anti-psychotic medication dosage was increased several months before the Hearing, she experienced visual hallucinations during the Hearing, she testified that she continues to isolate herself, had been caught on video at work having a conversation with an invisible person, and experienced negative side effects from her medication, which she did not take on the morning of the Hearing. (Id. at 24-25). By failing to consider this evidence, she argues that the ALJ underestimated the severity of her psychiatric limitations. (Id. at 24). As to her physical impairment, she notes that the ALJ improperly found that she could walk without limitation in 2020 given the evidence that, “in 2020, Ms. Santana continued to use a cane and CAM boot for walking, and continued to take medication in [an] attempt to alleviate the pain in her leg, ankle, and foot[.]” (Id. at 25 (citing R. 55, 60-61)). She also criticizes the ALJ's finding persuasive the opinion of Dr. Saeed, who neither treated nor examined her and reviewed the “record in its early developmental state.” (ECF No. 18 at 25 (citing (R. 22)). Ms. Santana contends that the ALJ was required but failed to evaluate whether and to what extent her symptoms improved following her second surgery. (ECF No. 18 at 2526).

Second, Ms. Santana contends that, because she suffers from a combination of exertional and non-exertional impairments, the ALJ was required, but failed, to obtain testimony from a VE. (ECF No. 18 at 26). Because a VE was not at the Hearing, the ALJ did not have “an opinion on the extent to which the anticipated absences from work would affect an individual's ability to maintain substantial gainful activity on a sustained basis.” (Id. at 27). She adds that a VE was also necessary to determine whether her occasional disorientation to person, place, and time, as Dr. Kildare found, would prevent her from performing the jobs found by the ALJ. (Id.) As a result, the ALJ “impermissibly made a vocational finding[,] which he is not qualified to do.” (Id. at 28).

2. The Commissioner's Arguments

The Commissioner responds to both of Ms. Santana's arguments. First, as to the ALJ's RFC determination, the Commissioner argues that Ms. Santana had the “burden of presenting evidence that she was incapable of performing substantial gainful activity.” (ECF No. 20 at 20 (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)). The Commissioner contends that “the ALJ properly evaluated the record evidence, including the opinion of Dr. Kildare that she had no or mild limitations, the assessment of Dr. M. Ahmed that her prolonged standing and walking were limited, and the findings of Dr. Saeed and Dr. Fassler, “to reach a well-supported RFC for sedentary work that involved simple, routine instructions and tasks.” (ECF No. 20 at 21). To the extent Ms. Santana argues that “she had further unspecified mental limitations,” the Commissioner disputes that the ALJ was required to state every basis to justify his Decision, and in any event, cites evidence disputing that Ms. Santana “had further social limitations.” (Id. at 22 (citing R. 23, 87,435, 471, 526, 534, 541, 543, 548, 551-52, 556-57, 567, 569, 572, 593, 618-19, 647, 654)). As to Ms. Santana's assertion that the ALJ overlooked her recent hallucination, the Commissioner points to her past denials of hallucinations, and points out that, although she claimed to have experienced hallucinations since childhood, she was able to work for a time and did not stop working due to her mental condition. (ECF No. 20 at 22-23 (citing R. 355, 432, 539, 543, 548, 551, 553, 556, 561, 563, 572, 574, 601, 816, 893, 905)). As to the side effects of her medications, the Commissioner points out that the evidence shows that Ms. Santana “reported medication compliance without adverse effects.” (ECF No. 20 at 23 (citing R. 21, 470-79, 553, 561, 617, 619, 623, 629, 632, 708, 818, 879, 893, 905)). As to the medical opinion evidence, the Commissioner contends that the ALJ appropriately considered the persuasiveness of Dr. Healy's opinion and Dr. Saeed's findings, as well as the findings of Dr. Cristofaro, Dr. M. Ahmed, and Ms. Popaj. (ECF No. 20 at 24). The Commissioner concludes that Ms. Santana's RFC arguments “amount[] to an invitation to the court to reevaluate the evidence,” contrary to the standard of review. (Id. at 26).

Second, the Commissioner disputes that VE testimony was required. The Commissioner points out that the ALJ considered Ms. Santana's age, education and ability to communicate in English, past work experience, and RFC for sedentary work, factors that correspond with the grids, which contain “approximately 200 sedentary unskilled occupations . . . each representing numerous jobs in the national economy[,]” and relied on Rule 201.18 to find that she was not disabled. (ECF No. 20 at 27). The Commissioner contends that, at step five, the ALJ did consider Ms. Santana's nonexertional limitations “and reasonably determined that they had little to no effect on the occupational base of unskilled work.” (Id. (citing R. 24)). The Commissioner describes Ms. Santana's surgeries as “temporary, discrete events” that “would not cause continued absences[,]” and notes that her participation in physical therapy from August 2019 through October 2019 “would not meet the 12-month durational requirement.” (ECF No. 20 at 28 (citing R. 617-23, 627-39; see id. at 54)). In conclusion, the Commissioner argues that the ALJ properly applied the grids and did not need VE testimony because the ALJ had found that Ms. Santana's “limitations did not erode the occupational base of unskilled sedentary [work].” (ECF No. 20 at 29 (citing R. 19)). The Commissioner thus maintains that the ALJ's determination that Ms. Santana was not disabled was supported by substantial evidence and should be affirmed. (ECF No. 20 at 29-30).

B. RFC Determination

In general, Ms. Santana's challenges to the ALJ's RFC determination amount to the contention that the ALJ should have interpreted the evidence of her physical and mental impairments differently. (See, e.g., ECF No. 18 at 26 (arguing that, “had the ALJ properly considered the evidence, he would have found that due to the combination of [Ms. Santana]'s severe impairments, she has been under a disability from the time of her administrative onset through the date of his decision.”)). As noted above, however, this Court's task “is limited to determining whether substantial evidence exists to support the ALJ's fact-finding; it may not reweigh that evidence or substitute its judgment for that of the ALJ where the evidence is susceptible of more than one interpretation.” Almodovar v. Berryhill, No. 17 Civ. 8902 (BCM), 2019 WL 1313883, at *7 (S.D.N.Y. Mar. 22, 2019) (citing Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012)).

One of Ms. Santana's criticisms of the ALJ's RFC determination does, however, have more traction. As she correctly points out, the ALJ found persuasive the opinion of Dr. Saeed (R. 22), who not only did not treat or examine Ms. Santana in person, but also rendered his opinion before both of her surgeries on her foot and ankle. (ECF No. 18 at 25). Dr. Saeed rendered his opinion on October 18, 2018, a month before the left ankle arthroscopy that Dr. M. Ahmed performed on November 16, 2018, and six months before the plantar fasciotomy that Dr. M. Ahmed performed on April 19, 2019. (Compare R. 92 with R. 1022-23). The Court must therefore assess whether this opinion can be substantial evidence to support the ALJ's Decision.

“[M]edical source opinions that are . . . stale[] and based on an incomplete medical record may not be substantial evidence to support an ALJ finding.” Camille v. Colvin, 104 F.Supp.3d 329, 343-44 (W.D.N.Y. 2015), aff'd, 652 Fed.Appx. 25 (2d Cir. 2016) (citation omitted). “For a medical opinion to be stale, not only must there be a significant period of time between the date of the opinion and the hearing date, there also must be subsequent treatment notes ‘indicat[ing] a claimant's condition has deteriorated' over that period.” Ambrose-Lounsbury v. Saul, No. 18 Civ. 240, 2019 WL 3859011, at *3 (W.D.N.Y. Aug. 16, 2019) (quoting Whitehurst v. Berryhill, No. 16 Civ. 01005 (MAT), 2018 WL 3868721, at *4-5 (W.D.N.Y. Aug. 14, 2018); see Amrhein Deruchie v. Comm'r of Soc. Sec., No. 18 Civ. 227, 2019 WL 5208123, at *8 (W.D.N.Y. Oct. 16, 2019) (holding that ALJ erred in relying on stale opinion rendered before claimant was “hospitalized multiple times for attempted suicide and Lamictal overdose”). A dated opinion may not be “stale” and may constitute substantial evidence “if it is consistent with the record as a whole[,]” Santiago v. Comm'r of Soc. Sec., No. 19 Civ. 2051 (KHP), 2020 WL 1922363, at *5 (S.D.N.Y. Apr. 21, 2020), and if there is “no evidence of an intervening event (such as a new injury) or significant deterioration” in the claimant's condition. Id. at *6.

Here, not only did Dr. Saeed's opinion pre-date Ms. Santana's two surgeries, but there is substantial evidence in the record that the two surgeries did not resolve Ms. Santana's physical impairment, and that her pain remained as bad or worse than before them. For example, on December 6, 2019, more than a year after the first surgery and more than six months after the second, Ms. Santana told Dr. M. Ahmed that, although her left ankle pain was “improving,” her left foot pain had worsened to an 8/10 and was not alleviated by NSAIDs or activity modification. (R. 815). From August 2019, Ms. Santana began receiving pain management therapy as MSPM, where her providers noted her limited active range of motion, pain and swelling, and continued use of the CAM boot. (R. 605-13, 640-42). Ms. Santana wore the CAM boot and used the cane at the Hearing, during which she testified that she continued to feel “sharp pain,” and could not put her “foot flat” or “step regularly.” (R. 53).

Despite this extensive contrary evidence in the record, the ALJ somehow found Dr. Saeed's opinion persuasive and consistent with Ms. Santana's “statements, testimony, the overall medical record, and the opinion of Dr. Cristofaro[.]” (R. 22). As noted above, however, Ms. Santana testified at the Hearing (where she was wearing a CAM boot and using a cane) that she still felt a sharp pain in her foot. (R. 53). Although Dr. Cristofaro examined Ms. Santana on February 5, 2020, closer to the Hearing, the penultimate page of his report-which appears to have contained his opinions-is missing from the record. (R. 1023-25). And, while Dr. Cristofaro did report that Ms. Santana told him that she could walk without limitation (R. 1021-22), that single statement of ability stands in contrast to her statement to him that her pain was an 8/10 as well as her testimony at the Hearing and other substantial evidence of her difficulty walking and standing for any significant amount of time. (See, e.g., R. 53, 56, 428-30, 605-610, 614-15, 617-24, 627-35, 640-42, 804-806, 815-18, 913-15, 1010-19). The ALJ therefore erred in cherry-picking this single statement to support relying heavily on Dr. Saeed's opinion in arriving at his RFC determination in the face of overwhelming evidence to the contrary. See, e.g., Colgan v. Kijakazi, 22 F.4th 353, 362 (2d Cir. 2022) (explaining that an ALJ may not cherry-pick particular instances of improvement to create an inconsistency); Jackson v. Kijakazi, No. 20 Civ. 6476 (JLC), 2022 WL 620046, at *18 (S.D.N.Y. Mar. 3, 2022) (“Courts frequently remand an ALJ's decision when it ignores or mischaracterizes medical evidence or cherry-picks evidence that supports his RFC determination while ignoring other evidence to the contrary.”); Herrera v. Comm'r of Soc. Sec., No. 20 Civ. 7910 (KHP), 2021 WL 4909955, at *9 (S.D.N.Y. Oct. 21, 2021) (explaining that “an ALJ may not ‘cherry-pick' medical opinions that support her opinion on RFC and ignore opinions that do not”).

Accordingly, the Court finds that, because there is evidence in the record that “at least some of [Ms. Santana's] symptoms deteriorated or worsened” in the 18 months between Dr. Saeed's opinion and the ALJ's Decision, Dr. Saeed's opinion as to her “functional abilities and limitations do[es] not constitute substantial evidence in support of the RFC.” Santana v. Saul, No. 18 Civ. 6651 (MJR), 2020 WL 2782393, at *4-5 (W.D.N.Y. May 29, 2020); see Gillespie v. Saul, No. 19 Civ. 6268 (MJP), 2020 WL 5628068, at *5 (W.D.N.Y. Sept. 21, 2020) (“[C]onsidering the A.L.J.'s reliance on this stale opinion evidence, the Court cannot determine whether the RFC was based upon substantial evidence.”); Fambo v. Comm'r of Soc. Sec., 474 F.Supp.3d 603, 608 (W.D.N.Y. 2020) (remanding where stale opinion “did not constitute substantial evidence for the ALJ's opinions”). Furthermore, this error was not harmless given the ALJ's heavy reliance on Dr. Saeed's stale, in tandem with Dr. Cristofaro's incomplete, opinions. (R. 22). See Mack v. Saul, No. 19 Civ. 0302 (DGL), 2020 WL 4338887, at *3 (W.D.N.Y. July 28, 2020) (remanding where ALJ's reliance on stale medical opinion impacted RFC determination).

C. Vocational Expert Testimony

For the reasons set forth below, the Court also finds that the ALJ erred by failing to elicit VE testimony in determining, at step five, whether there are jobs that exist in significant numbers in the national economy that Ms. Santana can perform. (R. 24).

1. Legal Standard

As noted above, at step five, once a claimant has shown she cannot perform her past work due to a severe impairment, the burden shifts to the Commissioner to prove that the claimant “still retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy.” Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986). The Commissioner may generally rely on the grids, which “take into account the claimant's residual functional capacity in conjunction with the claimant's age, education and work experience” to “indicate whether the claimant can engage in any other substantial gainful work which exists in the national economy” in any of five categories. Samuels v. Barnhart, No. 01 Civ. 3661 (MBM), 2003 WL 21108321, at *11 (S.D.N.Y. May 14, 2003). “Generally speaking, if a claimant suffers only from exertional impairments, e.g., strength limitations, then the Commissioner may satisfy her burden by resorting to the applicable grids.” Pratts, 94 F.3d at 38-39. “But if a claimant suffers from additional ‘nonexertional' impairments, the grid rules may not be controlling.” Bapp, 802 F.2d at 604. The SSA regulations provide, in these circumstances:

[W]here an individual has an impairment or combination of impairments resulting in both strength limitations and nonexertional limitations, the rules in this subpart are considered in determining first whether a finding of disabled may be possible based on the strength limitations alone and, if not, the rule(s) reflecting the individual's maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations. Also, in these combinations of nonexertional and exertional limitations which cannot be wholly determined under the rules in this appendix 2, full consideration must be given to all of the relevant facts in the case in accordance with the definitions and discussions of each factor in the appropriate sections of the regulations, which will provide insight into the adjudicative weight to be accorded each factor.

20 C.F.R., Pt. 404, Subpt. P., App. 2 § 200.00(e)(2) (1986). Section 200.00(a) provides that “[w]here any one of the findings of fact does not coincide with the corresponding criterion of a rule, the rule does not apply in that particular case and, accordingly, does not direct a conclusion of disabled or not disabled.” Id. § 200.00(a). “Consequently, the language of these sections indicates that in a case where both exertional and nonexertional limitations are present, the guidelines cannot provide the exclusive framework for making a disability determination.” Bapp, 802 F.2d at 605. The Second Circuit has explained:

that application of the grid guidelines and the necessity for expert testimony must be determined on a case-by-case basis. If the guidelines adequately reflect a claimant's condition, then their use to determine disability status is appropriate. But if a claimant's nonexertional impairments “significantly limit the range of work permitted by [her] exertional limitations” then the grids obviously will not accurately determine disability status because they fail to take into account claimant's nonexertional impairments . . . Accordingly, where the claimant's work capacity is significantly diminished beyond that caused by [her] exertional impairment the application of the grids is inappropriate. By the use of the phrase “significantly diminish” we mean the additional loss of work capacity beyond a

negligible one or, in other words, one that so narrows a claimant's possible range of work as to deprive him of a meaningful employment opportunity.

Id. at 605-06 (quoting Blacknall v. Heckler, 721 F.2d 1179, 1181 (9th Cir. 1983)).

Thus, an ALJ errs where he “neither identifie[s] [the claimant's] nonexertional limitations nor consider[s] whether a vocational expert [is] necessary,” and instead “proceed[s] directly to the ultimate question of disability without first considering whether further testimony was necessary in light of [the claimant's] nonexertional impairments.” Pratts, 94 F.3d at 39. Instead, the ALJ must “consider the intermediate question-whether the range of work [the claimant] could perform was so significantly diminished as to require the introduction of vocational testimony.” Bapp, 802 F.3d at 606; see Tricic v. Astrue, No. 07 Civ. 9997 (NAM) (GHL), 2010 WL 3338697, at *5 (N.D.N.Y. Aug. 24, 2010) (same). “If a claimant's range of work is significantly diminished, the Commissioner must present testimony from a vocational expert showing that there are still jobs in the national economy for someone with the claimant's limitations.” Samuels, 2003 WL 21108321, at *12 (explaining that the grids do not accurately reflect disability status where claimant's nonexertional limitations “‘significantly diminish' the full range of light work” otherwise allowed by his exertional limitations) (quoting Bapp, 802 F.2d at 605-06)).

To determine whether the ALJ erred in failing to obtain VE testimony, the Court “must determine whether there is substantial evidence in the record to support the ALJ's conclusion” as to the impact of the nonexertional limitations, Reyes v. Colvin, No. 13 Civ. 4683 (WHP), 2015 WL 337483, at *15 (S.D.N.Y. Jan. 26, 2015), which may be “mental, postural, auditory, visual, or environmental.” Pena Lebron v. Comm'r of Soc. Sec., No. 18 Civ. 125 (BCM), 2019 WL 1429558, at *19 (S.D.N.Y. Mar. 29, 2019).

2. Application

The ALJ did not consult a VE in this case, nor consider whether one was required, instead finding that “the additional limitations of simple, routine instructions and tasks, have little or no effect on the occupational base of unskilled sedentary work[,]” and therefore, grid Rule 201.18 directed the conclusion that Ms. Santana is not disabled. (R. 24). Considering the medical evidence of Ms. Santana's nonexertional impairments, however, the Court finds that the ALJ should not have relied solely on the grids to determine whether Ms. Santana was disabled, and should have consulted the expertise of a VE before making that determination.

There is substantial evidence in the record to indicate that Ms. Santana's left leg and ankle impairments significantly limit her ability to stand or walk, and even to sit for the time necessary to accomplish even the limited, sedentary work the ALJ determined for her RFC. For example, Ms. Santana wore the CAM boot and used a cane at the Hearing, at which she testified that she “still [felt] the sharp pain” and could not “put [her] foot flat.” (R. 53). In addition, as her treating physician, Dr. M. Ahmed, noted just days after the Hearing, she continued to experience “chronic” pain in her left ankle and foot, caused by plantar fascial fibromatosis and an unspecified sprain. (R. 1015). Since August 2019, Ms. Santana had been going to MSPM for pain treatment, and her providers there repeatedly noted the limited range of motion in her left ankle, her use of a CAM boot, pain and swelling, and only “some” relief from pain medication. (R. 611-15, 61723, 641-42, 624, 627-35). Ms. Popaj at MSPM also noted that Ms. Santana's pain “often” interfered with her attention and concentration, limited her to sitting for up to two hours and standing or walking for up to 30 minutes, and that her pain could cause her to be absent from work as often as three times per month. (R. 606-07, 610). Similarly, worker's compensation examiner Dr. McIntyre noted in October 2019 that her range of motion was 50% of normal. (R. 914).

This evidence, combined with evidence demonstrating that she suffered from other nonexertional impairments, including depression, anxiety, and diagnosed learning disabilities²⁴ (see, e.g., R. 325-29, 432-36, 459, 524, 865), “suggest that the ALJ should have consulted a vocational specialist to assist in the determination that there are jobs in the national economy for an individual with [Ms. Santana's] limitations.” Hanmann v. Chater, No. 94 Civ. 0735E (JTE) (CEH), 1996 WL 116192, at *9 (W.D.N.Y. Jan. 17, 1996) (remanding where ALJ “relied entirely on the Grids to make a determination of disability” despite substantial evidence of nonexertional impairments); see Samuels, 2003 WL 21108321, at *13 (remanding where ALJ “should have recognized” claimant's nonexertional limitation, namely, a tenth grade education, and assessed whether claimant's “intellectual abilities significantly limited the range of work permitted by her exertional limitations” before turning to the grids); Gallivan v. Apfel, 88 F.Supp.2d 92, 99 (W.D.N.Y. 2000) (remanding where record did “not support the ALJ's opinion that [claimant's intellectual] limitations would not significantly compromise her ability to perform a full range of light or sedentary work[,]” and thus the ALJ “should have introduced testimony from a vocational expert or received other evidence to ascertain whether jobs existed in the national economy”); see also Allen v. Comm'r of Soc. Sec., No. 10 Civ. 1156 (GTS), 2012 WL 4033711, at *10 (N.D.N.Y. Sept. 12, 2012) (remanding where ALJ erred in relying only on grids in determining that claimant, who had several nonexertional limitations, was not disabled); Baggett v. Astrue, No. 11 Civ. 0195 (NAM) (DEP), 2012 WL 2814369, at *13 (N.D.N.Y. June 13, 2012) (recommending remand where ALJ erred in failing to take into account claimant's “pain as a non-exertional limitation” and instead relied solely on the grids). Given Ms. Santana's nonexertional limitations, “the ALJ should have introduced testimony from a vocational expert or received other evidence to ascertain whether jobs existed in the national economy that [Ms. Santana] could perform.” Gallivan, 88 F.Supp.2d at 99; see Tricic, 2010 WL 3338697, at *6 (remanding where record contained evidence “that plaintiff suffers additional mental limitations that would diminish the range of work plaintiff could perform and that would, consequently, need to be addressed through the testimony of a vocational expert before a disability determination could be reached”); Hanmann, 1996 WL 116192, at *9 (remanding where claimant's physical and nonexertional limitations indicated that ALJ should have consulted with VE); see also Williams v. Barnhart, No. 01 Civ. 353 (SAS), 2002 WL 618605, at *6 (S.D.N.Y. Apr. 18, 2002) (remanding for consideration of evidence of IQ of claimant who had tenth-grade education).

24 Under the SSA regulations, “mental limitations are nonexertional limitations.” Samuels, 2003 WL 21108321, at *12 (citing 20 C.F.R. § 416.969(c); 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e)). Courts in the Second Circuit have recognized that “intellectual limitations can affect the range of employment opportunities available to a person.” Id.; see DeLeon v. Sec'y of Health & Human Serv., 734 F.2d 930, 936 (2d Cir. 1984) (“Surely a borderline IQ has a bearing on employability, even as a mop-pusher, porter, or maintenance man.”).

Because the ALJ did not do so here, the Court cannot conclude that the Commissioner met her burden at step five to establish that jobs existed in significant numbers in the national economy that Ms. Santana can perform. See Ruvo v. Colvin, No. 15 Civ. 0768 (LEK), 2016 WL 3647877, at *10 (N.D.N.Y. July 1, 2016) (“Given that the ALJ's RFC determination was not supported by substantial evidence, and that the requirement of the ALJ to elicit testimony from a vocation expert is based on whether Plaintiff's RFC falls within the Grids, the Court cannot conclude that the ALJ's decision not to elicit testimony from a vocational expert was properly determined.”) Accordingly, the Court respectfully recommends that remand is required for further development of the record.

V. CONCLUSION

For the reasons set forth above, I respectfully recommend that Ms. Santana's Motion be GRANTED, the Commissioner's Motion be DENIED, and the matter be remanded for further proceedings.