Opinion
Civil Action 22 Civ. 5627 (JPO) (SLC)
07-24-2023
CARMEN MILAGROS SERRANO, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE J. PAUL OETKEN, United States District Judge:
I. INTRODUCTION
Plaintiff Carmen Milagros Serrano (“Ms. Serrano”) commenced this action pursuant to Section 205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. § 405(g), seeking review of the April 25, 2022 decision by the Commissioner (the “Commissioner”) of the Social Security Administration (“SSA”), denying her application for Supplemental Security Income (“SSI”) benefits under the Act. (ECF No. 1). Ms. Serrano contends that the decision of the Administrative Law Judge (“ALJ”) was erroneous, not supported by substantial evidence, and/or contrary to law, and asks the Court to modify the decision to grant the SSI payments, or remand for a new hearing to reconsider the evidence. (Id. at 2).
Ms. Serrano moved, and the Commissioner cross-moved, for judgment on the pleadings, both pursuant to Federal Rule of Civil Procedure 12(c). (ECF Nos. 21 (“Ms. Serrano's Motion”); 25 (the “Commissioner's Motion”), together, the “Motions”)). The Motions have been referred to me for a report and recommendation. (ECF No. 7). For the reasons set forth below, I respectfully recommend that Ms. Serrano's Motion be DENIED and the Commissioner's Motion be GRANTED.
II. BACKGROUND
A. Factual Background
On August 22, 2014 (the “Onset Date”), Ms. Serrano filed an application for SSI benefits (the “Application”), claiming that her “mental problems” rendered her unable to work as of that date. (SSA Administrative Record (“R.”) 67-75, 311-16 (ECF Nos. 16-16-4)). On October 21, 2014, the SSA denied Ms. Serrano's Application, finding that she was not disabled. (R. 66; 74).
1. Non-medical evidence
Ms. Serrano was born in 1967 and was nearly 47 years old at the time of her Application. (R. 67, 311, 1470). She lives alone in an apartment and has three grown sons, who have “isolated” from her. (R. 56, 58, 1470). She attended school up to the sixth or seventh grade in Puerto Rico, and moved to the continental United States in 1983. (R. 57, 1471). She has “tried” to learn English but “cannot get it.” (R. 1471). Her last employment was as a cleaning person in “around 2013.” (R. 1472; see R. 57). She was fired from that position after she “lost control” and “was very upset.” (R. 1472-73). After she was fired, Ms. Serrano “started to get depressed.” (R. 1473). She does not want to leave her house, becomes “overwhelmed when [she is] around people,” and “like[s] to be alone.” (Id.; see R. 58). She does not have visitors, does not clean, and makes simple meals for herself. (R. 57-58). Ms. Serrano feels “anger” and “rage” that “make[] it very difficult to communicate with people.” (R. 61). She “hate[s] reading,” is not able to follow a television show from beginning to end, and has “one friend.” (Id.) In December 2013, Ms. Serrano's former partner subjected her to verbal abuse and “put a gun to [her] head.” (R. 6263). Her psychiatric condition worsened after that incident. (R. 63).
In a function report completed on July 3, 2019 by her counsel (the “Function Report”), Ms. Serrano described her daily activities as staying at home and going to doctor visits every other week. (R. 1690, 1694, 1697). Although she prepares simple meals for herself, a friend buys her food for her. (R. 1692). On a “good day,” she can do cleaning and laundry. (Id.) She socializes on the phone once per month, but no longer goes out with family. (R. 1694-95). Ms. Serrano described fear caused by her depression as a reason for staying at home. (R. 1697; see R. 1690).
2. Medical evidence
a. New Beginnings Community Counseling Center
i. Dr. Sanchez
On May 6, 2014, Ms. Serrano underwent an outpatient psychiatric evaluation (the “May 2014 Evaluation”) performed by Antonio Alberto Sanchez, M.D. (“Dr. Sanchez”) of New Beginnings Community Counseling Center in Bronx, New York (“New Beginnings”). (R. 462-63). Dr. Sanchez noted that Ms. Serrano reported that she had been depressed for about one year following her relationship with a man who caused her to become estranged from her adult children. (R. 462). Ms. Serrano described feeling depressed and anxious, and having difficulty sleeping. (Id.) She reported that she was referred for therapy at Lincoln Hospital but stopped after three sessions because she did not feel that they helped her. (Id.)
Dr. Sanchez noted that Ms. Serrano appeared her stated age, was thin, “almost underweight,” and with “fair to good” grooming. (R. 463). Dr. Sanchez indicated that Ms. Serrano was “fidgety,” “alert,” with a “negativistic, but cooperative” attitude, “average” intellectual functioning, and a “constricted and mildly labile, but appropriate” affect. (Id.) Dr. Sanchez noted that Ms. Serrano's mood appeared “moderately depressed and anxious,” but she had “no evident psychotic features” or suicidal or homicidal ideations. (Id.) While her insight was fair, her judgment and impulse control seemed mildly impaired. (Id.)
Dr. Sanchez diagnosed Ms. Serrano with depressive disorder not otherwise specified and anxiety disorder not otherwise specified. (R. 463). Dr. Sanchez ruled out major depressive disorder and adjustment disorder with mixed anxiety and depressed mood, chronic. (Id.) Dr. Sanchez recommended a regimen of Prozac, the dosage of which would increase after two weeks, Trazadone at bedtime, and psychotherapy involving cognitive behavioral therapy (“CBT”). (Id.)
The New Beginnings records included a two-page medication record with Dr. Sanchez's notes concerning prescriptions for Prozac, Trazodone, and Wellbutrin for the period from May 6, 2014 to September 10, 2014. (R. 464-65).
Dr. Sanchez completed a form entitled “Medical Source Statement About What the Claimant Can Still Do Despite Medical Impairment(s),” dated November 13, 2015 (“Dr. Sanchez's Medical Source Statement”). (R. 475-79). Dr. Sanchez's Medical Source Statement leaves blank the field concerning “frequency and length of contact,” and does not indicate the extent of Dr. Sanchez's treatment of or relationship with Ms. Serrano, or when he last provided her medical care. (See id.) In a field providing for a “yes” or “no” response concerning whether Ms. Serrano had a “low [intelligence quotient (“IQ”)]” or reduced intellectual functioning, Dr. Sanchez wrote “unknown” and elaborated, “no test[] results available.” (R. 476). Dr. Sanchez' Medical Source Statement identifies Ms. Serrano as suffering from depressive disorder and anxiety disorder, and identifies her symptoms on a “yes/no” basis, answering yes to, inter alia, poor memory, sleep disturbance, personality change, mood disturbance, loss of intellectual ability in excess of 15 I.Q. points,delusions or hallucinations, recurrent panic attacks, difficulty thinking or concentrating, perceptual disturbances, oddities of thought, perception, speech, or behavior, social withdrawal or isolation, manic syndrome, obsessions or compulsions, hostility and irritability. (R. 475). Of 32 symptoms, Dr. Sanchez's form indicates that Ms. Serrano suffered from 29. (Id.)
This assessment is curious, in light of Dr. Sanchez' response just a page later that he did not know whether Ms. Serrano had reduced intellectual functioning because there were “no test results available.” (Id.)
Dr. Sanchez's Medical Source Statement also addressed the impact of Ms. Serrano's condition on her ability to work. (R. 476-78). Dr. Sanchez checked off that Ms. Serrano's impairments could, on average, cause her to be absent from work “more than 3 times a month” and identified a “marked loss” in her ability to understand, remember, and carry out detailed instructions, maintain attention and concentration for extended periods, maintain regular attendance, sustain an ordinary routine without special supervision, deal with the stress of semiskilled and skilled work, complete a normal workday or workweek without interruptions from psychologically-based symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, set realistic goals or make plans independently of others, and travel in unfamiliar places (which was characterized as a moderate to marked loss). (Id.)
Dr. Sanchez also indicated mostly “moderate loss” in the degree to which Ms. Serrano could work with others without being unduly distracted, interact appropriately with the public, accept instructions and receive feedback from supervisors, respond appropriately to changes in a routine work setting, be aware of normal hazards, and use public transportation. (R. 477-78).
Finally, Dr. Sanchez deemed that there was a loss between moderate and “no/mild loss” in Ms. Serrano's ability to remember locations and work procedures, understand, remember, and carry out very short and simple instructions, make simple work-related decisions, ask simple questions or request assistance, and get along with co-workers and peers without unduly distracting them or exhibiting behavioral extremes. (Id.) Dr. Sanchez indicated that Ms. Serrano's condition existed since 2013. (R. 479).
ii. Dr. Pellowe
On November 10, 2016, Arthur Pellowe, M.D. (“Dr. Pellowe”), completed a Medical Source Statement form (“Dr. Pellowe's Medical Source Statement”). (R. 516-21). Dr. Pellowe noted in the field for frequency and length of contact “weekly therapy monthly medication” without specifying with whom the therapy occurred or the period of his relationship with Ms. Serrano. (R. 517). Dr. Pellowe's Medical Source Statement identified Ms. Serrano as suffering from depressive disorder, psychosis, and anxiety disorder. (Id.) Of 32 possible symptoms, Dr. Pellowe's form indicated that Ms. Serrano suffered from twelve, in contrast to the 29 that Dr. Sanchez indicated two-and-a-half years earlier. (Compare R. 475 with R. 517).
In a separate field for clinical findings, Dr. Pellowe noted “fidgety, negativistic attitude, depressed, anxious, constricted affect[,] labile affect, [and] mildly impaired judgment and impulse control at [the] time of [the] psych[ological] assess[ment on May 6, 2014]. Better on medication but continues to experience auditory hallucinations and visual illusions of knockings on her door and seeing shadows when nothing [is] there.” (R. 518). Like Dr. Sanchez, Dr. Pellowe indicated that Ms. Serrano's impairments would, on average, cause her to be absent more than three times a month. (R. 518). Dr. Pellowe addressed Ms. Serrano's limitations and noted a “marked loss” in her ability to understand, remember, and carry out detailed instructions, maintain attention and concentration for extended periods, sustain an ordinary routine without special supervision, deal with stress of semi-skilled and skilled work, work in coordination with or proximity to others without being unduly distracted, interact appropriately with the public, accept instructions from supervisors and get along with peers, respond appropriately to changes in a routine work setting, and to set realistic goals or make plans independently of others. (R. 519-20). Dr. Pellowe determined that Ms. Serrano had an “extreme loss” in her ability to complete a normal workday or workweek without interruptions from psychologically-based symptoms, travel in unfamiliar places, and use public transportation. (R. 520) Dr. Pellowe indicated that Ms. Serrano's condition existed and persisted since an unspecified point in 2014. (R. 521).
b. Lincoln Hospital
Ms. Serrano's Lincoln Hospital medical records reflect routine medical treatment unrelated to her psychiatric condition, with some observations bearing on her mental state. These visits are summarized chronologically below.
On September 17, 2014, Ms. Serrano was seen for a routine gynecological examination and a mammogram. (R. 1306-23). The medical record for this visit indicates a past medical history of depression, although during a Patient Health Questionnaire (“PHQ-2”) screening, Ms. Serrano denied anhedoniaas well as depressed mood. (R. 1315).
“Anhedonia is the inability to feel pleasure. It's a common symptom of depression as well as other mental health disorders.” Smitha Bhandari, MD (medical review), What Is Anhedonia?, WebMD (Oct. 20, 2020), https://www.webmd.eom/depression/what-is-anhedonia#1 (last visited July 21, 2023).
On February 26, 2015 Ms. Serrano had a walk-in appointment at a virology clinic for bloodwork. (R. 1324-51). She was diagnosed with “depressive disorder, not elsewhere classified” and “major depressive disorder, single episode, unspecified.” (R. 1342). Ms. Serrano reported anhedonia and stated that she took medication for depression. (R. 1345).
On July 27, 2015, Ms. Serrano presented at the Lincoln Hospital Emergency Room for lower back pain radiating to her lower extremities and bilateral knee pain. (R. 528, 532-33). She reported that she was independent in her activities of daily living and she presented as oriented to time, person, and place, with an appropriate affect, cooperative demeanor, and normal speech. (R. 534). She appeared well-nourished, denied suicidal thoughts, visual or auditory hallucinations, past medical history, and taking any medications. (R. 534-37). Ms. Serrano was treated with a muscle relaxant and ibuprofen and released. (R. 529, 531, 536).
In a February 17, 2016 medical screening visit, Ms. Serrano was diagnosed with major depressive disorder and unspecified lower back pain. (R. 556, 1374, 1381). Ms. Serrano denied anhedonia but reported a depressed mood and reported that she was taking medications for depression. (R. 1390).
On January 4, 2017, Ms. Serrano was seen in the Emergency Department for flu symptoms, including fever, chills, and a productive cough. (R. 1400-01). She reported that she was independent with her activities of daily living and appeared well-nourished. (R. 1401). Her medical record indicates that she was oriented to time, person, and place, not taking medications, and not suicidal. (R. 1401-02). She was diagnosed with myalgia (muscle pain), with an impression of chronic obstructive pulmonary disease (“COPD”), and she was prescribed a vitamin supplement, as well as Tessalon and Augmentin, and discharged to home or self-care. (R. 708, 1406-07).
At a routine gynecological appointment on February 2, 2017, Ms. Serrano was diagnosed with “[m]ajor depressive disorder, single episode, unspecified,” and she denied experiencing anhedonia or a depressed mood. (R. 722, 1415, 1422-23).
Additional Lincoln records were part of the record for the Third Hearing. (R. 1702-1903). Most of these visits were for physical conditions, but some indications of her mental status were noted. (See id.) At a February 17, 2016 visit, Ms. Serrano described feeling depression, nervousness, and suicidal ideation, for which she was prescribed medications including Trazodone, Bupropion, Fluoxetine, and Olanzapine. (R. 1742, 1744-45, 1781). At January 4, 2017, December 4, 2017, and December 11, 2017 suicide screens, she denied having suicidal thoughts. (R. 1756, 1799, 1804-05). Her diagnosis of “major depressive disorder, single episode, unspecified,” was regularly noted throughout 2016, 2017, 2018, and 2019, with unremarkable mental status examinations. (R. 1751-52, 1768, 1770-74, 1776, 1779-82, 1787, 1798, 1803, 1807, 1809, 1811, 1817, 1836, 1841, 1843, 1846-52, 1861, 1875, 1886, 1888).
c. SSA consulting psychologist - Lucy Kim, Psy. D.
On October 4, 2014, Lucy Kim, Psy.D. of Industrial Medicine Associates, P.C. (“Dr. Kim”) performed a psychiatric consultative evaluation of Ms. Serrano (“Dr. Kim's Evaluation”). (R. 46770). Ms. Serrano was accompanied by a friend who acted as a translator. (R. 467).
Ms. Serrano reported that she cooked, cleaned, shopped, did laundry, groomed herself, and managed money independently. (R. 469). She reported that a past mugging made her afraid to take public transportation by herself and that she spent her days watching television. (Id.) Ms. Serrano reported that she last worked in December 2013 as a cleaner and discontinued work due to her depression. (R. 467). She described receiving monthly psychiatric treatment and weekly therapy since May 2014. (Id.) She was taking Trazodone (100 milligrams daily), Fluoxetine (40 milligrams daily), and Bupropion XL (300 milligrams daily). (Id.) Ms. Serrano reported experiencing poor appetite resulting in weight loss, difficulty sleeping, dysphoric moods, social withdrawal, and anxiety. (Id.) She denied suicidal and homicidal ideations, and reported visual hallucinations of “dead bodies,” increased paranoia and fear following an incident three years prior when she was held at gunpoint, and feeling “as though someone is knocking on her door.” (R. 467-68).
Dr. Kim performed a mental status examination in which she observed Ms. Serrano's appearance, speech, thought process, affect, mood, sensorium, orientation, attention, and concentration and memory. (R. 468-69). Ms. Serrano was well-groomed, dressed appropriately, and appeared her stated age. (R. 468). Her speech was clear, her affect was of a full range and appropriate to the content of her speech, her mood was euthymic, and her thought process was “[c]oherent and goal[-]directed with no evidence of hallucinations, delusions, or paranoia.” (Id.)
Dr. Kim concluded that Ms. Serrano's insight and judgment were fair, her intellectual functioning was below average, and her general fund of information was appropriate to her experience. (R. 469). Dr. Kim noted that Ms. Serrano's attention and concentration were mildly impaired-possibly due to limited intellectual functioning-and although Ms. Serrano could count, she was not able to do simple calculations or complete “serial 3s.” (R. 468-69). Ms. Serrano's memory skills were intact, and she could both recall three out of three objects immediately and after a five-minute delay and repeat four digits forward and three digits backward. (R. 469).
In the medical source statement, Dr. Kim noted mild limitation to maintaining attention and concentration, and no evidence of limitation to the following: “Following and understanding simple directions and instructions, performing simple tasks independently, being able to maintain a regular schedule, learning new tasks, performing complex tasks independently, making appropriate decisions, relating adequately with others, and appropriately dealing with stress.” (R. 469).
Dr. Kim diagnosed Ms. Serrano with major depressive disorder and generalized anxiety disorder and ruled out posttraumatic stress disorder (“PTSD”). (R. 470). She concluded that “[d]ifficulties are caused by distractibility and cognitive deficits,” and although the results of the cognitive examination “appear to be consistent with psychiatric and cognitive problems . . . in itself, this does not appear to be significant enough to interfere with [Ms. Serrano's] ability to function on a daily basis.” (R. 469). Ultimately, Dr. Kim determined that Ms. Serrano's prognosis was “fair” in light of “minimal” psychological symptoms impacting her activities of daily life. (R. 470).
d. State agency psychologist - J. Dambrocia, M.D.
Based on a review of Ms. Serrano's medical records, state agency psychologist J. Dambrocia, M.D. (“Dr. Dambrocia”)provided a report in which he observed that Ms. Serrano had no psychiatric hospitalizations; was prescribed Trazadone, Wellbutrin, and Prozac; and had been treated at New Beginnings since 2014. (R. 73). The records reflected her reports of symptoms of depression, anxiety, visual hallucinations, PTSD, paranoia, and difficulties in cognitive functioning. (Id.) Dr. Dambrocia concluded that Ms. Serrano was “able to understand and remember instructions and sustain attention and concentration for tasks,” although she “may have difficulties relating with others and/or adapting to changes,” a “somewhat reduced” ability to deal with co-workers and the public, and a “reduced” ability to tolerate and respond appropriately to supervision, “but adequate to handle ordinary levels of supervision in the customary work setting.” (Id.) Dr. Dambrocia assessed Ms. Serrano's residual functional capacity and determined that Ms. Serrano's abilities in the following categories were “not significantly limited”:
Dr. Dambrocia's medical specialty code indicates his specialty as psychology. See ECF No. 26 at 10 n.4.
[1] to carry out very short and simple instructions, [2] carry out detailed instructions, [3] maintain attention and concentration for extended periods, [4] sustain an ordinary routine without special supervision, [5] work in coordination with or proximity to others without being distracted by them, [6] ask simple questions or request assistance, [7] accept instructions and respond appropriately to criticism from supervisors, [8] get along with coworkers or peers without distracting them or exhibiting behavioral extremes, [9] maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness, [10] be aware of normal hazards and take appropriate precautions, and [11] set realistic goals or make plans independently of others.(R. 71-72). Moderate limitations were indicated for the ability to perform activities within a schedule, maintain regular attendance, and be punctual; make simple work-related decisions; complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public, and respond appropriately to changes in work setting; and ability to travel in unfamiliar places or use public transportation. (Id.)
The mental status evaluation was positive for mild difficulties in memory but otherwise unremarkable, with no affective symptoms noted. (R. 73). Dr. Dambrocia concluded that Ms. Serrano's “psychiatric difficulties are not significant enough to interfere with daily functioning.” (Id.) While acknowledging that Ms. Serrano has certain difficulties in relating to others and adapting to changes, Dr. Dambrocia determined that these abilities were “adequate to handle ordinary levels of supervision in the customary work setting,” and that she was “able to understand and remember instructions and sustain attention and concentration for tasks.” (Id.)
Ultimately, Dr. Dambrocia found that Ms. Serrano was not disabled. (R. 74).
Michael Healy, M.D., performed a consultative internal medicine examination (R. 1905-1908), which the Court does not summarize because only Ms. Serrano's mental conditions are at issue. (See ECF No. 22; R. 1438).
e. Consultative examiner - David Schaich, Psy. D.
On July 26, 2019, David Schaich, Psy. D. (“Dr. Schaich”) performed a consultative psychiatric evaluation of Mr. Ms. Serrano. (R. 1910-14). Dr. Schaich observed that Ms. Serrano had not undergone inpatient psychiatric treatment but was participating in outpatient psychiatric treatment once per month and spoke to a therapist once per week. (R. 1910). Ms. Serrano reported difficulty sleeping and loss of appetite. (Id.) She reported a history of depression, daily depressed moods, crying spells, guilt, hopelessness, loss of interest, irritability, loss of energy, worthlessness, diminished self-esteem, concentration problems, diminished sense of pleasure, and social withdrawal. (Id.) She denied suicidal or homicidal thoughts, but reported anxiety, worry, apprehension, restlessness, and irritability. (Id.) Ms. Serrano described being a victim of domestic violence, which caused her to experience nightmares, flashbacks, and intrusive thoughts. (R. 1910-11). She denied symptoms of mania, thought disorder, or cognitive deficits. (R. 1911).
Dr. Schaich's mental status examination found Ms. Serrano to have an adequate manner of relating, social skills, and overall presentation. (R. 1911). She appeared her age, was well-groomed, and had appropriate eye contact. (Id.) Her speech was fluent and clear. (Id.) Her thought process was coherent and goal-directed, with no evidence of hallucinations, delusions, or paranoia. (Id.) Her affect was appropriate and she was oriented to person, place, and time, although her mood was down. (Id.) Dr. Schaich found her attention and concentration and her recent and remote memory skills impaired due to emotional distress secondary to depression and limited intellectual functioning. (R. 1912). Ms. Serrano described being “bad at math,” and was unable to count serial 7s. (Id.) Dr. Schaich found her cognitive functioning “borderline,” and her insight and judgment “poor.” (Id.) Dr. Schaich observed that Ms. Serrano was able to dress, bathe, and groom herself, prepare food, clean, do laundry, shop, and manage money. (Id.) He noted her lack of a driver's license, inability to take public transportation due to mental health issues, and lack of socializing or hobbies. (Id.)
In his medical source statement (“Dr. Schaich's Medical Source Statement”), Dr. Schaich observed that there was “no evidence” of a limitation in Ms. Serrano's ability to understand, remember, or apply simple directions and instructions; understand, remember, or apply complex directions and instructions; ability to sustain concentration and perform tasks at a consistent pace; sustain an ordinary routine and regular attendance at work; ability to maintain personal hygiene and appropriate attire; and ability to be aware of normal hazards and take appropriate precautions. (R. 1912-13). Dr. Schaich described Ms. Serrano as having a moderate limitation in her ability to use reason and judgment to make work-related decisions, a moderate limitation in her ability to regulate emotions, control behavior, and maintain well-being, and a mild limitation in the ability to interact adequately with supervisors, co-workers, and the public. (Id.) Dr. Schaich found that Ms. Serrano's difficulties were caused by depression, anxiety, and possible learning disability, and that the results of his examination were consistent with psychiatric and cognitive problems, but did not appear to be significant enough to interfere with her ability to function on a daily basis. (R. 1913). Dr. Schaich ruled out specific learning disorders, and diagnosed unspecified depressive disorder and unspecified anxiety disorder. (Id.) He recommended that Ms. Serrano continue with psychological and psychiatric treatment as currently provided and undergo vocational training, and gave Ms. Serrano a prognosis of “fair.” (Id.)
B. Administrative Proceedings
1. The first administrative proceeding
a. The first and second hearings before the ALJ
At Ms. Serrano's request, on December 8, 2016 and March 23, 2017, ALJ Dina R. Loewy held video hearings, in which Ms. Serrano participated with the assistance of a Spanish interpreter and accompanied by her attorney. (R. 34-45, 51-65, 82-83). Although the ALJ sent two subpoenas to New Beginnings seeking Ms. Serrano's medical records, by the date of the later hearing the ALJ had not yet received them and agreed to wait for them before issuing a decision. (R. 38-39, 127-29, 300-01).
b. The first ALJ decision and Appeals Council review
On July 31, 2017, ALJ Loewy issued a decision finding that Ms. Serrano was not disabled under the Act. (R. 15-23 (the “First ALJ Decision”)). On September 5, 2018, the Appeals Council denied review, rendering the ALJ Decision the final decision of the Commissioner. (R. 1-3, 10).
2. The second administrative proceeding
a. Appeals Council order
On September 29, 2021, the Appeals Council vacated the First ALJ Decision and remanded the matter to another ALJ for further proceedings. (R. 1555-56). The Appeals Council noted that, on May 31, 2019, Ms. Serrano had filed a claim for Title II and Title XVI disability benefits, and the state agency subsequently found Ms. Serrano disabled as of Onset Date. (R. 1555). The Appeals Council “neither affirm[ed] nor reopen[ed] the determination, which continue[d] to be binding,” instructing that the period for the ALJ's consideration at a new hearing was “limited to that period prior to May 31, 2019.” (Id.)
b. The third ALJ hearing
On March 15, 2022, ALJ Raymond Prybylski held a telephonic hearing, at which Ms. Serrano testified with the assistance of a Spanish interpreter and accompanied by her attorney. (R. 1462-84). Although Lincoln had produced a large volume of records, New Beginnings still had not produced any records in response to the subpoenas that ALJ Loewy had issued. (R. 1468). Ms. Serrano cried during the testimony. (R. 1478).
During the hearing, ALJ Prybylski asked vocational expert (“VE”) Sheri Pruitt (“VE Pruitt”) to consider a hypothetical claimant of Ms. Serrano's age, education, and work experience who was: (i) limited to the full range of light work; (ii) occasionally crouch or crawl; (iii) avoid concentrated exposure to respiratory irritants; (iv) avoid exposure to unprotected heights and unprotected machinery; (v) limited to simple tasks; (vi) able to tolerate few if any workplace changes; (vii) tolerate no interaction with the public and only occasional interaction with coworkers; (viii) off-task 10% of the day; and (ix) absent once per month. (R. 1479). VE Pruitt testified that such a person would be able to perform three jobs: marker, of which there are 131,000 jobs in the national economy; small parts assembler, of which there are 18,000 jobs in the national economy; and routing clerk, of which there are 31,000 jobs in the national economy. (R. 1479-80). In response to the ALJ's additional limitation to sedentary work, VE Pruitt testified that there were three jobs available to such a person: sorter, of which there are 1,800 jobs in the national economy; circuit board inspector, of which there are 1,000 jobs in the national economy; and eyeglass frames polisher, or which there are 1,400 jobs in the national economy. (R. 1480-81). VE Pruitt acknowledged that employers would not tolerate “[a]nything over ten percent off task behavior or more than one day per month absenteeism.” (R. 1481).
c. The second ALJ decision
On April 25, 2022, ALJ Prybylski issued his decision finding that, while Ms. Serrano was disabled from March 1, 2019 through May 30, 2019, she was not disabled prior to March 1, 2019. (R. 1435-52 (the “Second ALJ Decision”)). At step one, the ALJ found that Ms. Serrano had not engaged in substantial gainful activity since the Onset Date. (R. 1438). At step two, the ALJ found that, since the Onset Date, Ms. Serrano had the severe impairments of depressive disorder and anxiety disorder. (Id.) At step three, the ALJ found that, since the Onset Date, she did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (R. 1439 (citing 20 C.F.R. §§ 416.920(d), 416.925, 416.926 (the “Listings”))). The ALJ next found that, prior to March 1, 2019, Ms. Serrano had the residual functional capacity to perform light work with several limitations: Ms. Serrano was limited to occasionally crouching and crawling; she must avoid concentrated exposure to respiratory irritants; she must avoid all exposure to workplace hazards such as unprotected heights and unprotected machinery; she is limited to simple tasks; she can tolerate few workplace changes; she can tolerate no interaction with the public and only occasional interaction with co-workers and supervisors; and she is expected to be off-task 10% of the day and absent once per month. (R. 1441 (the “RFC”)). The ALJ also found that her RFC after March 1, 2019 was similar, with the limitation of sedentary (rather than light) work. (R. 1447).
In reaching this decision, the ALJ considered the medical evidence summarized above (see § II.A.2, supra), including the medical opinions of Drs. Pellowe, Sanchez, Kim, Dambrocia, and Schaich. (R. 1444-46). After considering the six factors in 20 C.F.R. § 416.927(c),the ALJ afforded “little weight” to the opinions of Drs. Pellowe and Sanchez due to the absence of treatment notes from them to support the multiple marked and extreme limitations they concluded that Ms. Serrano had and the expectation that she would be absent more than three times per month. (R. 1444-45). In particular, the ALJ noted that, although Dr. Sanchez evaluated Ms. Serrano on May 6, 2014, there was “no indication whatsoever of the length, nature, and extent of his relationship with [her].” (R. 1445). And while Dr. Pellowe's Medical Source Statement noted “weekly therapy monthly medication,” it did “not indicate for which period this took place or with whom the medication management and therapy took place.” (Id.) The ALJ also noted that their assessments of Ms. Serrano “diverged significantly,” were “inconsistent with the lack of abnormal mental exam findings at physical exams during and around the relevant period,” and that “these incongruities” did not support their opinions. (Id.) The ALJ afforded “significant weight” to the opinions of Drs. Kim, Dambrocia, and Schaich, all of which he incorporated into the RFC because they were consistent with examination findings and other evidence in the record showing “relatively normal mental exam findings” and “the lack of abnormal mental exam findings” during the relevant period. (R. 1445-46).
The ALJ cited “20 CDR 404.1527(c),” (R. 1445), which, from context, the Court infers was intended to reference 20 C.F.R. § 416.927(c).
At step four, the ALJ noted that Ms. Serrano had no past relevant work, such that no skills transferred within the RFC. (R. 1449-50). At step five, considering her age, education, and RFC, the ALJ concluded that there were jobs that existed in significant numbers in the national economy that she could have performed, including as a marker, small parts assembler, and routing clerk. (R. 1450-51). Accordingly, the ALJ concluded that Ms. Serrano was not disabled prior to March 1, 2019, but became disabled on that date due to lumbar disc disease that limited her to sedentary work, and was disabled through May 30, 2019, the end of the relevant period for the Second ALJ Decision. (R. 1451).
C. Federal Court Proceedings
1. The first action
On December 10, 2018, Ms. Serrano filed a complaint in this Court challenging the First ALJ Decision. Complaint, Serrano v. Comm'r of Soc. Sec., No. 18 Civ. 11543 (S.D.N.Y. Dec. 10, 2018), ECF No. 1; see Ms. Serrano v. Comm'r of Soc. Sec., No. 18 Civ. 11543 (GBD) (SLC), 2021 WL 1536538, at *1 (S.D.N.Y. Jan. 25, 2021) (“Serrano I”), adopted in part and rejected in part, 2021 WL 1172478 (S.D.N.Y. Mar. 29, 2021) (“Serrano II”). (See R. 1486-88). After Ms. Serrano and the Commissioner both moved for judgment on the pleadings, I issued a report and recommendation recommending that: (1) the Court temporarily refrain from ruling on Ms. Serrano's argument that the ALJ Decision was invalid because the ALJ was not properly appointed at the time of the hearings and decision as required by the Appointments Clause of the United States Constitution and the Supreme Court's decision in Lucia v. S.E.C., 138 S.Ct. 2044 (2018); and, in the alternative, (2) the Court hold that the ALJ applied the correct standards and that the First ALJ Decision was supported by substantial evidence. Serrano I, 2021 WL 1536538, at *12-16.
The Commissioner objected to the finding that Ms. Serrano had not forfeited her Appointments Clause challenge. Serrano II, 2021 WL 1172478, at *1. The Honorable George B. Daniels overruled the Commissioner's objection, adopted my report and recommendation in part, “decline[d] to refrain from ruling on [Ms. Serrano's] Appointments Clause Challenge,” denied the Commissioner's motion for judgment on the pleadings, granted Ms. Serrano's crossmotion for judgment on the pleadings, and remanded the matter “for a new hearing before a different, properly appointed ALJ.” Id. at *2. The Third Hearing and the Second ALJ Decision followed. (See §§ II.B.2.b - c, supra).
2. The second action
On July 1, 2022, Ms. Serrano filed the Complaint in this action, challenging the Second ALJ Decision to the extent that the ALJ found her not disabled prior to March 1, 2019. (ECF No. 1). On April 14, 2023 and June 13, 2023, Ms. Serrano and the Commissioner filed their respective Motions. (ECF Nos. 21; 25). On July 5, 2023, Ms. Serrano filed a reply. (ECF No. 27). Judge Oetken has referred the Motions to me for a report and recommendation. (ECF No. 7).
III. DISCUSSION
A. Applicable Legal Standards
1. Standard of review
Under Rule 12(c), a party is entitled to judgment on the pleadings if she establishes that no material facts are in dispute and that she is entitled to judgment as a matter of law. See Juster Assoc. v. Rutland, 901 F.2d 266, 269 (2d Cir. 1990); Nunez v. Colvin, No. 16 Civ. 3917 (PKC), 2017 WL 3614444, at *4 (S.D.N.Y. Aug. 22, 2017).
The Act provides that the Commissioner's findings “as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). A court may set aside the Commissioner's decision denying SSI benefits if it is not supported by substantial evidence or was based on legal error. See Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). Judicial review, therefore, involves two levels of inquiry. First, the Court must decide whether the ALJ applied the correct legal standard. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Byrd v. Kijakazi, No. 20 Civ. 4464 (JPO) (SLC), 2021 WL 5828021, at *13 (S.D.N.Y. Nov. 12, 2021), adopted by, 2021 WL 5827636 (S.D.N.Y. Dec. 7, 2021). Second, the Court must decide whether the ALJ's decision was supported by substantial evidence. Tejada, 167 F.3d at 773; Byrd, 2021 WL 5828021, at *13. “To determine whether the findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Feliciano v. Comm'r of Soc. Sec., No. 10 Civ. 3151 (JPO), 2011 WL 6399512, at *3 (S.D.N.Y. Dec. 20, 2011); see, e.g., Schillo v. Saul, 31 F.4th 64, 74 (2d Cir. 2022).
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., Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); Thomas v. Comm'r of the SSA, 479 F.Supp.3d 66, 82 (S.D.N.Y. Aug. 18, 2020) (citing Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)).
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). 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.” Rosario v. Comm'r of Soc. Sec., No. 20 Civ. 7749 (SLC), 2022 WL 819810, at *6 (S.D.N.Y. Mar. 18, 2022). 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 a court, when reviewing decisions of the SSA, to order further proceedings: “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner [], with or without remanding the ca[]se for a rehearing.” 42 U.S.C. § 405(g); see Butts v. Barnhart, 388 F.3d 377, 382 (2d Cir. 2004). If “there are gaps in the administrative record or the ALJ has applied an improper legal standard,” the Court will remand the case for further development of the evidence or for more specific findings. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)). Remand is particularly appropriate where further findings or explanation will clarify the rationale for the ALJ's decision. Pratts, 94 F.3d at 39. If, however, the reviewing court concludes that an ALJ's determination to deny benefits was not supported by substantial evidence, a remand solely for calculation of benefits may be appropriate. See, e.g., Butts, 388 F.3d at 386 (discussing Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000)).
2. Standards for benefit eligibility
For purposes of SSI benefits, one is “disabled” within the meaning of the Act, and thus entitled to such benefits, when she is “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(3)(A). The Act also requires that the impairment be “of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 1382c(3)(B). In reviewing a claim of disability, the Commissioner must consider: “(1) objective medical facts; (2) 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 (2d Cir. 1983)).
At the first four steps, the claimant bears the burden of proof. At the fifth step, the burden shifts, to a limited extent, to the Commissioner to demonstrate that there are jobs in the national economy that the claimant can perform. See, e.g., Schillo, 31 F.4th at 70. “Because the shift in step five is limited, the Commissioner ‘need not provide additional evidence of the claimant's residual functional capacity.'” Id. (quoting Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009)). In meeting the burden of proof at the fifth step, the Commissioner may usually rely on the Medical-Vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, known as “the Grid.” Hernandez v. Colvin, No. 13 Civ. 3035 (RPP), 2014 WL 3883415, at *14 (S.D.N.Y. Aug. 7, 2014) (citing Zorilla v. Chater, 915 F.Supp. 662, 666-67 (S.D.N.Y. 1996)). "[T]he Grid is inapplicable[,]” however, “in cases where the claimant exhibits a so-called ‘non-exertional impairment' that significantly diminishes the claimant's ability to work.” Id.
3. Evaluation of medical opinion evidence
For benefits applications filed before March 27, 2017, like Ms. Serrano's, the SSA regulations required the ALJ to give “controlling weight” to “the opinion of a claimant's treating physician as to the nature and severity of the impairment . . . so long as it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record.” Burgess, 537 F.3d at 128 (internal citation omitted); accord Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). "This preference is generally justified because treating sources are likely to be ‘the medical professionals most able to provide a detailed, longitudinal picture' of a plaintiff's medical impairments and offer a unique perspective that the medical tests and SSA consultants are unable to obtain or communicate.” Martinez v. Comm'r of Soc. Sec., No. 21 Civ. 11054 (SLC), 2023 WL 2707319, at *11 (S.D.N.Y. Mar. 30, 2023) (quoting Correale-Engelhart v. Astrue, 687 F.Supp.2d 396, 426 (S.D.N.Y. 2009), adopted by, 687 F.Supp.2d 396 (S.D.N.Y. 2010)).
If the ALJ determines that a treating physician's opinion is not controlling, he is nevertheless required to consider the following factors in determining the weight to be given to that opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence provided to support the treating physician's opinion; (4) the consistency of the opinion with the record as a whole; (5) whether the opinion is from a specialist; and (6) other factors brought to the Commissioner's attention that tend to support or contradict the opinion. 20 C.F.R. § 416.927(c). The ALJ must give “good reasons” for not crediting the claimant's treating physician. 20 C.F.R. § 416.927(c)(2); see Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (explaining that Appeals Council had “an obligation to explain” the weight it gave to the opinions of the non-treating physicians). After considering these factors, the ALJ must fully set forth his reasons for the weight assigned to the treating physician's opinion. Burgess, 537 F.3d at 129.
While the ultimate issue of disability is reserved to the Commissioner, the regulations make clear that opinions from one-time examining sources that conflict with treating source opinions are generally given less weight. 20 C.F.R. § 416.927(c)(2). See Selian v. Astrue, 708 F.3d 409, 419 (2d Cir. 2013) (“ALJs should not rely heavily on the findings of consultative physicians after a single examination”); Martinez, 2023 WL 2707319, at *11 (explaining that opinions of onetime consultants should not overrule those provided by the treating medical sources unless there are “serious errors” in treating sources' opinions) (citing Cabreja v. Colvin, No. 14 Civ. 4658 (VSB), 2015 WL 6503824, at *30 (S.D.N.Y. Sept. 14, 2015), adopted by, 2015 WL 6503824 (S.D.N.Y. Oct. 27, 2015)). Failing to apply proper weight to a treating physician's opinion is reversible error. See Greek v. Colvin, 802 F.3d 370, 376 (2d Cir. 2015) (per curiam).
4. Assessing a claimant's subjective allegations
In considering a claimant's symptoms that allegedly limit his or her ability to work, the ALJ must first determine whether there is an underlying “medically determinable impairment(s)”- i.e., “an impairment(s) that can be shown by medical signs or laboratory findings”-that could “reasonably be expected to produce [claimant's] symptoms.” 20 C.F.R. § 416.929(c). If such an impairment is found, the ALJ must next evaluate the “intensity and persistence of [the claimant's] symptoms [to] determine the extent to which [the] symptoms limit [the claimant's] capacity for work.” 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) (summary order); Taylor v. Barnhart, 83 Fed.Appx. 347, 350-51 (2d Cir. 2003) (summary order).
Courts have recognized that “the second stage of the analysis may itself involve two parts.” Martinez, 2023 WL 2707319, at *12 (citing Sanchez v. Astrue, No. 07 Civ. 931 (DAB), 2010 WL 101501, at *14 (S.D.N.Y. Nov. 17, 2009), adopted by, 2010 WL 101501 (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)). If the ALJ does not follow these steps, remand is appropriate. Id.
When a claimant reports symptoms that are more severe than medical evidence alone would suggest, SSA regulations require the reviewing ALJ to consider specific factors in determining the credibility of the claimant's symptoms and their limiting effects. SSR 96-7p, 1996 WL 374186, at *2, superseded by, SSR 16-3p, 2017 WL 5180304 for claims filed after March 27, 2017 (see SSR 96-7p, 1996 WL 374186, at *7 n.15). 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; Cherico v. Colvin, No. 12 Civ. 5734 (MHD), 2014 WL 3939036, at *29 (S.D.N.Y. Aug. 7, 2014).
B. Evaluation of the Second ALJ Decision
Ms. Serrano advances four reasons why the Second ALJ Decision finding her not disabled prior to March 1, 2019 due to her mental impairments is erroneous: (i) the ALJ erred in his application of the Treating Physician Rule; (ii) the VE's testimony did not constitute substantial evidence; (iii) the ALJ impermissibly relied on his own lay opinion; and (iv) the ALJ misapplied the “paragraph B” criteria of Listings 12.04 and 12.06. (ECF No. 22 at 17-29). The Commissioner responds that substantial evidence supports the ALJ's RFC determination, the ALJ properly weighed the medical opinion evidence, and substantial evidence supports the ALJ's finding that there were significant numbers of jobs that Ms. Serrano could perform. (ECF No. 26 at 17-34).
The Court first considers the ALJ's evaluation of the medical opinion evidence before turning to Ms. Serrano's remaining arguments.
1. The ALJ properly applied the Treating Physician Rule.
Ms. Serrano argues that the ALJ erred in only giving “little weight” to the opinions of the two treating physicians, Drs. Pellowe and Sanchez, while giving “significant weight” to the one-time consultative examinations of Drs. Kim and Schaich. (ECF No. 22 at 18-24; see ECF No. 27 at 2-4). Ms. Serrano notes that Drs. Pellowe and Sanchez, both specialists in psychiatry, agreed that she exhibited symptoms of sleep and mood disturbance, emotional lability, delusions or hallucinations, feelings of guilt and worthlessness, difficulty concentrating, perceptual disturbances, decreased energy, intrusive recollections of a traumatic experience, persistent irrational fears, hostility, and irritability. (ECF No. 22 at 19-20 (citing R. 475-79, 51721); see ECF No. 27 at 3). She contends that their evaluations of her limitations are consistent with Dr. Sanchez's May 2014 Evaluation and other references in the record to her diagnosis of “major depressive disorder, single episode, unspecified,” which Dr. Dambrocia had also noted. (ECF No. 22 at 20-21 (citing R. 69-75, 548, 577, 581, 1328, 1393, 1415)).
The Commissioner responds that the ALJ properly accorded little weight to the opinions of Drs. Pellowe and Sanchez because Dr. Sanchez examined Ms. Serrano only once, and the record contains no treatment notes for Dr. Pellowe, such that neither qualified as a “treating physician” under 20 C.F.R. § 416.927(b)(2). (ECF No. 26 at 24-25). Even if they were treating physicians, the Commissioner continues, neither opinion was both well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the record. (Id. at 25 (citing 20 C.F.R. § 416.927(c)).
The Court agrees that ALJ Prybylski appropriately accorded “little weight” to the opinions of Drs. Sanchez and Pellowe given the absence of treatment notes to support their opinions and the vagueness in the limited records they did make as to the length and nature of their relationship with and treatment of Ms. Serrano. The records for Drs. Sanchez and Pellowe consist of only four documents: Dr. Sanchez's May 2014 Evaluation, which was prior to the period of Ms. Serrano's disability, a list of medications Dr. Sanchez prescribed over several months in 2014, and each doctor's Medical Source Statement. (R. 462-65, 475-79, 516-21). The Medical Source Statements of each doctor state their conclusions as to Ms. Serrano's degree of impairment (R. 475-79, 516-21), but these conclusions are unsupported by any notes, treatment records, or test results elsewhere in the record. See 20 C.F.R. § 416.927(c)(3) (“The more a medical source presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight we will give that medical opinion”). The limited documents from Drs. Sanchez and Pellowe are also deficient because they do not provide adequate information concerning the length of the treatment relationship, the frequency of examination, and the nature and extent of the treatment relationship. See 20 C.F.R. § 416.927(c)(2) (length, nature, and extent of treatment relationship and frequency of examination are important factors in determining weight given to medical opinion)). Dr. Sanchez's Medical Source Statement leaves conspicuously blank the field for frequency and length of contact, so there is no indication whatsoever of the length, nature, or extent of his treatment relationship with Ms. Serrano. (R. 475). See 20 C.F.R. § 416.927(c)(2). Dr. Pellowe's November 10, 2016 Medical Source Statement has slightly more information, noting “weekly therapy monthly medication,” but it does not indicate for which period this took place, or with whom the medication management and therapy took place. (R. 517). Thus, the opinions of Drs. Sanchez and Pellowe were not “well-supported” by medically acceptable clinical and laboratory diagnostic techniques. Burgess, 537 F.3d at 128.
Further, the Court agrees with the ALJ that Drs. Sanchez and Pellowe diverged significantly in their assessment of Ms. Serrano's symptoms, as indicated in the table below.
| Symptom | Pellowe (R. 517) | Sanchez (R. 475) |
| Poor memory | No | Yes |
| Appetite disturbance with weight change | No | Yes |
| Personality change | No | Yes |
| Loss of intellectual ability of 15 IQ points or more | No | Yes |
| Recurrent panic attacks | No | Yes |
| Anhedonia or pervasive loss of interests | No | Yes |
| Psychomotor agitation or retardation | No | Yes |
| Paranoia or inappropriate suspiciousness | No | Yes |
| Oddities of thought, perception, speech, or behavior | No | Yes |
| Time or place disorientation | No | Yes |
| Catatonia or grossly disorganized behavior | No | Yes |
| Social withdrawal or isolation | No | Yes |
| Blunt, flat, or inappropriate affect | No | Yes |
| Illogical thinking or loosening of associations | No | Yes |
| Manic syndrome | No | Yes |
| Obsessions and compulsions | No | Yes |
| Generalized persistent anxiety | No | Yes |
| Somatization unexplained by organic disturbance | Yes | No |
| Pathological dependence or passivity | No | Yes |
Accordingly, the Court finds that the ALJ did not err in affording only little weight to the opinions of Drs. Pellowe and Sanchez.
2. The ALJ properly weighed the VE's testimony and did not substitute his own opinion.
Ms. Serrano argues that the ALJ erred in failing to include in his hypothetical to the VE Ms. Serrano's inability to perform math, as both Drs. Kim and Schaich had noted. (ECF No. 22 at 25 (citing R. 467-70, 1910-14); see ECF No. 27 at 5-6). As a result of this omission, Ms. Serrano contends that the VE's testimony did not constitute substantial evidence to support the ALJ's conclusions. (ECF No. 22 at 25). The Commissioner responds that the ALJ's hypothetical included Ms. Serrano's sixth-grade education, and, in any event, other evidence in the record showed her ability to manage money, pay bills, count change, and handle a savings account. (ECF No. 26 at 33-34 (citing R. 344, 469, 1912)).
As noted above, at step five of the disability analysis, the ALJ must determine that significant numbers of jobs exist in the national economy that the claimant can perform. See 20 C.F.R. § 416.920(a)(4)(v). “An ALJ may make this determination either by applying the Medical Vocational Guidelines or by adducing testimony of a vocational expert,” McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014), on whose testimony regarding a hypothetical the ALJ may rely as long as “there is substantial record evidence to support the assumption[s] upon which the vocation expert based [her] opinion,” Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983), and “accurately reflect[s] the limitations and capabilities of the claimant involved.” McIntyre, 758 F.3d at 151; see Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981). The Second Circuit has explained that “an ALJ's hypothetical should explicitly incorporate any limitations in concentration, persistence, and pace,” but that the failure to include non-exertional limitations in a hypothetical is harmless error if:
(1) “medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace,” and the challenged hypothetical is limited “to include only unskilled work”; or
(2) the hypothetical “otherwise implicitly account[ed] for a claimant's limitations in concentration, persistence, and pace.”McIntyre, 758 F.3d at 152 (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011), superseded in part by, SSR 16-3p, 2017 WL 5180304 (SSA ruling rescinding SSR 96-7p, 1996 WL 374186)).
This ruling is inapplicable to Ms. Serrano's Application. (See § III.A.4, supra).
In his hypothetical to VE Pruitt at the Third ALJ Hearing, the ALJ did not specifically mention Ms. Serrano's difficulty calculating serial threes, but did ask the VE to consider Ms. Serrano's education and noted that she “would be limited to simple tasks and would be able to tolerate few if any workplace changes.” (R. 1479). In addition, the VE heard Ms. Serrano's testimony that she only completed “[u]p to the sixth grade” in school in Puerto Rico (R. 1471), and each of the jobs the VE listed required, at most, a mathematical development level of 1, which approximates a fourth-grade level of mathematical ability. See Dictionary of Occupational Titles (“DOT”). See Hall v. Astrue, No. 11 Civ. 22 (JEG), 2012 WL 3732815, at *8 (E.D. N.C. July 6, 2012) (collecting cases), adopted by, 2012 WL 3727317 (E.D. N.C. Aug. 28, 1012); see also Kelley S. v. Comm'r of Soc. Sec., No. 17 Civ. 1234 (ATB), 2019 WL 529909, at *10 (N.D.N.Y. Feb. 11, 2019) (because claimant with fifth-grade mathematical skills could perform jobs with mathematical level of 1, finding that ALJ did not err in failing to specifically mention claimant's documented math difficulties). Furthermore, the record indicates that, during her examinations with Drs. Kim and Schaich, Ms. Serrano was able to do some counting, and, as she stated in her Function Report, she was able to manage her own money, pay bills, count change, and handle a savings account. (R. 469, 1912; see R. 344). Under the Second Circuit's standard, then, the ALJ's omission of Ms. Serrano's difficulties with math was, at most, harmless error because the hypothetical contemplated that she was limited to simple tasks and substantial evidence demonstrated that she could engage in simple, routine tasks. See McIntyre, 758 F.3d at 152. In addition, by referencing Ms. Serrano's sixth-grade education, the ALJ “otherwise implicitly accounted for” Ms. Serrano's mathematical capabilities. Id. Accordingly, any omission in the ALJ's hypothetical was harmless and does not undermine the finding that Ms. Serrano was not disabled. See Andrew R. v. Comm'r of Soc. Sec., No. 21 Civ. 102 (CJS), 2023 WL 2445335, at *9-10 (W.D.N.Y. Mar. 10, 2023) (holding that ALJ's failure to specifically include non-exertional limitations in hypothetical to VE was harmless error where record demonstrated plaintiff's ability to perform work at the level ALJ specified in RFC) (citing McIntyre, 758 F.3d at 151-52); Rodriguez v. Comm'r of Soc. Sec., No. 19 Civ. 10002 (JGK), 2021 WL 1335907, at *5-6 (S.D.N.Y. Apr. 9, 2021) (holding that ALJ's failure to specifically include non-exertional limitations in hypothetical to VE was harmless error where substantial evidence supported plaintiff's ability to perform simple, routine tasks despite limitations) (citing McIntyre, 758 F.3d at 152); Kelley S., 2019 WL 529909, at *10 (holding that “to the extent that the ALJ erred by not referencing plaintiff's math skills in his RFC and the resulting hypothetical question to the VE, such error was harmless”).
“The DOT sets forth a General Education Development Scale (‘GED Scale'), which describes the level of education, both formal and informal, required for satisfactory performance in different jobs.” Martinez v. Comm'r of Soc. Sec., No. 15 Civ. 3649 (RRM), 2017 WL 1155778, at *17 (E.D.N.Y. Mar. 27, 2017). “The GED Scale breaks down the level of education into three categories: reasoning development, mathematical development, and language development.” Id.; see Haiss v. Berryhill, No. 17 Civ. 8083 (VB) (LMS), 2019 WL 3738624, at *11 (S.D.N.Y. May 15, 2019), adopted by, 2019 WL 5690712 (S.D.N.Y. Nov. 4, 2019). As is relevant to the ALJ's RFC determination for Ms. Serrano, GED mathematical level 1 contemplates the ability to add and subtract two-digit numbers, multiply and divide 10s and 100s by 2, 3, 4, and 5, and perform operations with coins and units of measurement. See OALJ Law Library, Dictionary of Occupational Titles, Appendix C (4th Ed., Rev. 1991), available at, https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOTAPPC (last visited July 21, 2023).
In addition, Ms. Serrano contends that, in the RFC, the ALJ substituted his own “lay” opinion that she was limited to no interaction with the public but occasional interaction with coworkers and supervisors. (ECF No. 22 at 26-28). Ms. Serrano contends that Drs. Sanchez and Kim made no distinction between her ability to interact with the public as opposed to co-workers and supervisors. (Id. at 26-27 (citing R. 475-79, 467-70)). In the most recent evaluation in the record, however, Dr. Schaich, while noting that a home health aide helped Ms. Serrano with some tasks, found only a mild limitation in her “ability to interact adequately with supervisors, coworkers, and the public.” (R. 1912 (emphasis added)). Ms. Serrano is therefore simply incorrect that the ALJ substituted his lay opinion as to her ability to interact with others.
Ms. Serrano also argues that the ALJ improperly substituted his lay opinion that she would be off-task 10% of the time and absent once per month, which she maintains is unsupported by substantial evidence. (ECF No. 22 at 26-27). As the Commissioner correctly points out, however, the Second Circuit has rejected the argument that an ALJ's assignment of a particular percentage range to illustrate a non-exertional limitation is permissible, where it is supported by substantial evidence. See Johnson v. Colvin, 669 Fed.Appx. 44, 47 (2d Cir. 2016) (explaining that ALJ's assignment of percentage range to illustrate non-exertional limitation did “not undermine the fact that the ALJ's finding was supported by substantial evidence”); David H. v. Comm'r of Soc. Sec., No. 21 Civ. 447S (WMS), 2023 WL 3316579, at *6, (W.D.N.Y. May 8, 2023) (same). Here, substantial evidence supporting the ALJ's low estimate of Ms. Serrano's absences and time off-task includes, inter alia, (i) Dr. Dambrocia's assessment of only a moderate limitation in her ability to maintain a regular schedule and his conclusion that she was able to ask simple questions or request assistance, accept instructions, maintain socially appropriate behavior, and sustain attention; (ii) Dr. Kim's opinion that Ms. Serrano had no limitation in maintaining a regular schedule; and (iii) her full orientation on examination throughout the relevant period. (R. 72-73, 467-69, 534, 576, 599, 1712, 1763, 1818, 1838-39, 1862, 1875, 1888, 1892, 1895, 1902, 1912). In any event, to the extent Ms. Serrano contends that she should have “a more restrictive RFC than the ALJ found,” she bore the burden to prove that, and her reliance on the opinions of Drs. Sanchez and Pellowe is misplaced for the reasons discussed above. Salerno v. Berryhill, No. 19 Civ. 627 (KHP), 2020 WL 882006, at *10 (S.D.N.Y. Feb. 24, 2020) (citing Smith v. Berryhill, 740 Fed.Appx. 721, 76 (2d Cir. 2018)); see Finn v. Comm'r of Soc. Sec., No. 21 Civ. 5457 (SLC), 2022 WL 4245196, at *7 (S.D.N.Y. Sept. 15, 2022) (finding that claimant failed to meet burden to show more restrictive RFC than ALJ assessed).
Accordingly, Ms. Serrano's challenges to the ALJ's hypothetical and his assessment of her non-exertional limitations fail to demonstrate that the Second ALJ Decision was not supported by substantial evidence.
3. The ALJ properly applied the “paragraph B” criteria.
Ms. Serrano argues that the ALJ erred by including in the hypothetical to the VE and in the RFC the accommodation of “few, if any, workplace changes,” despite his finding that she had moderate limitations in her ability to adapt or manage herself. (ECF No. 22 at 28 (citing R. 1441, 1451)). As a result, she contends that the ALJ erred by failing to properly consider the “paragraph B” criteria in Listings 12.04 and 12.06. (ECF No. 22 at 28).
Listing 12.00 covers “Mental Disorders.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00. “Paragraph B of each [Section 12] listing (except 12.05) provides the functional criteria [the Commissioner] assess[es] . . . to evaluate how [a claimant's] mental disorder limits [his or her] functioning.” Id. § 12.00(A)(2)(b). Paragraph C of listings 12.02, 12.03, 12.04, 12.06, and 12.15 provides the criteria [the Commissioner] use[s] to evaluate ‘serious and persistent mental disorders.'” Id.
The applicable regulations provide that, to determine the severity of a mental impairment at step three of the disability determination, the Commissioner assesses, on a five-point scale, four areas to determine the degree of functional limitation: “[u]nderstand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself.” 20 C.F.R. §§ 416.920a(c)(3)-(4). As the Second Circuit has explained, these factors only apply at step three-determining the severity of a mental impairment-“not a claimant's RFC, which is relevant to the guidelines' fourth and fifth steps.” Whipple v. Astrue, 479 Fed.Appx. 367, 369 (2d Cir. 2012) (summary order); see 20 C.F.R. §§ 416.920a(d) (stating that factors are used to determine severity of mental impairment and that ALJ will assess claimant's RFC only after determining that mental impairment is severe but does not meet or equal a Listing); 416.920(a)(4)(iii) (third step evaluates medical severity of impairment and whether it meets or equals a Listing); 416.920(a)(4)(iv) (fourth step assesses RFC and past relevant work); 416.920(a)(4)(v) (fifth step assesses RFC, age, education, and work experience to assess potential adjustment to other work). Accordingly, the ALJ was not required to consider, in determining Ms. Serrano's RFC for use in steps four and five, the paragraph B criteria for determining the degree of functional limitation at step three.
In any event, at step three, the ALJ considered each of the paragraph B criteria, finding that Ms. Serrano had only a mild limitation in the area of understanding, remembering, or applying information, and moderate limitations in each of the areas of interacting with others; concentrating, persisting, and maintaining pace; and adapting or managing oneself. (R. 143839). Those findings led the ALJ to conclude that, while her mental impairments were severe, they nevertheless did not meet or medically equal Listings 12.04 or 12.06, and that, with the non-exertional limitations he included in the RFC-in particular the limitations to simple tasks, no interaction with the public, and only occasional interaction with co-workers and supervisors (R. 1441, 1447)-she was capable of performing work available in the national economy. (R. 1438-51). Courts in this Circuit have found that similar non-exertional limitations are “appropriate when a person has moderate limitations” in the areas of concentration, persistence, or pace, and interacting with others. McMillian v. Comm'r of Soc. Sec., No. 20 Civ. 7626 (KHP), 2022 WL 457400, at *6 (S.D.N.Y. Feb. 15, 2022) (collecting cases). Accordingly, the ALJ did not err as a matter of law in how he applied the paragraph B factors. See Whipple, 479 Fed.Appx. at 369-70 (upholding ALJ's application of paragraph B factors).
* * *
In sum, despite some conflicting medical opinions in the record, the Court finds that the Second ALJ Decision finding that Ms. Serrano was not disabled and could perform certain work available in the national economy both applied the correct legal standard and was supported by substantial evidence. See Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (finding that ALJ's decision that claimant who had only moderate limitations in her work-related functioning could perform unskilled work was “well supported”); Bryant v. Comm'r of Soc. Sec., No. 20 Civ. 6933 (MKV) (SLC), 2022 WL 17540581, at *15-16 (S.D.N.Y. Nov. 21, 2022) (finding that substantial evidence supported ALJ's decision that, despite mild and moderate functional limitations, claimant was capable of performing work in the national economy and was not disabled), adopted by, 2022 WL 17540540 (S.D.N.Y. Dec. 6, 2022); German v. Comm'r of Soc. Sec., No. 19 Civ. 3328 (AT) (SDA), 2020 WL 5899521, at *6 (S.D.N.Y. May 27, 2020) (finding that substantial evidence supported ALJ's decision that, despite moderate functional limitations, claimant could perform unskilled work and failed to demonstrate that a more restrictive RFC was warranted), adopted by, 2020 WL 3959187 (S.D.N.Y. July 13, 2020).
IV. CONCLUSION
For the reasons set forth above, I respectfully recommend that Ms. Serrano's Motion be DENIED and the Commissioner's Motion be GRANTED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Oetken.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).