Opinion
21 Civ. 10847 (KMK)(PED)
11-23-2022
Brian Sherwood, Plaintiff, v. Kilolo Kijakazi,[1]Acting Commissioner of the Social Security Administration Defendant.
HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
PAUL E. DAVISON, U.S.M.J
I. INTRODUCTION
Plaintiff Brian Sherwood brings this action pursuant to 42 U.S.C. § 405(g), challenging the decision of the Acting Commissioner of the Social Security Administration that denied his application for a period of disability and Social Security Disability Insurance Benefits (“DIB”). Your Honor referred this matter to me for a report and recommendation. [Dkt. 9.] Plaintiff filed a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), seeking to reverse the Acting Commissioner's decision that Plaintiff was not disabled within the meaning of the Social Security Act, 42 U.S.C. §§ 423 et seq., and to remand the matter for further administrative proceedings. [Plaintiff's Memorandum of Law at Dkt. 21.] The Acting Commissioner filed a cross-motion for judgment on the pleadings to affirm the decision and to dismiss this action. [Defendant's Motion at Dkt. 24; Memorandum of Law at Dkt. 25.] For the reasons that follow, I respectfully recommend that Your Honor DENY Plaintiff's motion, and GRANT the Acting Commissioner's motion.
Plaintiff elected not to file a reply. [See dkt. 26.]
II. BACKGROUND
Plaintiff was born on April 26, 1981. [R. 211.] He graduated high-school and has an Associate's degree. [Id.] He previously worked as a route driver for UPS. [Id.] Prior to working as a route driver, he drove the bread route for a bread company, and before that he worked as a laborer in construction. [Id.] He contends that he is disabled due to obesity, degenerative disc disease of the lumbar spine, pseudoarthrosis and status post lumbar fusion L4-5 and L5-S1. [R. 12.] Plaintiff alleges that the onset of his disability was March 14, 2017. [R. 188.] Plaintiff's date of last insured was June 30, 2018. [R. 207.]
Notations preceded by “R.” refer to the certified administrative record of proceedings relating to this case submitted by the Acting Commissioner in lieu of an answer. [Dkt. 16.] The Court conducted a plenary review of the entire administrative record, familiarity with which is presumed. In light of plaintiff's narrow challenge to the ALJ's decision, I assume knowledge of the facts surrounding plaintiff's medical treatment and do not recite them in detail, except as germane to the analysis set forth below.
“In order to retain eligibility for benefits, Social Security Disability claimants must earn at least a minimum threshold amount of Social Security wages within a set period preceding their claim.” Oomen v. Berryhill, 2017 WL 1386355, at *1 n.2 (S.D.N.Y. Apr. 17, 2017). The date of last insured “is the last day on which a claimant is last eligible for disability insurance benefits.” Id. (internal quotation marks omitted). “A claimant is not eligible to receive benefits for any disability beginning after that date.” Id. (internal quotation marks omitted); see 20 C.F.R. §§ 404.130, 404.315; Arnone v. Bowen, 882 F.2d 34, 38 (2d Cir. 1989).
A. Procedural History
On January 9, 2020, Plaintiff filed for a period of disability and/or all insurance benefits. [Application at R. 188-94.] Plaintiff's application was denied and he requested reconsideration. [Denial at R. 63-71; Request for Reconsideration at R. 87.] Upon reconsideration, Plaintiff's application was again denied, and so he requested a hearing before an Administrative Law Judge (“ALJ”). [Request for ALJ Hearing at R. 100.] A telephonic hearing was held on January 7, 2021 before ALJ Vincent Cascio. [R. 39.] Plaintiff appeared with counsel and testified at the hearing. [R. 44-51.] A vocational expert also testified at the hearing. [R. 51-58. ] On January 28, 2021, the ALJ issued a written decision in which he concluded that Plaintiff was not disabled within the meaning of the SSA and denied Plaintiff's application. [R. 10-20.] The ALJ's decision became the Acting Commissioner's final decision on October 18, 2021 when the Appeals Council denied Plaintiff's request for review. [R. 1-4.] Plaintiff timely commenced this action on December 17, 2021. [Dkt. 1.]
B. Medical Evidence
1. Prior to Plaintiff's Alleged Onset Date, March 14, 2017
On October 14, 2015, Plaintiff had an appointment with Adam Soyer, D.O. [R. 1182.] Dr. Soyer noted that Plaintiff previously worked as a UPS driver but that he was involved in a work-related accident on June 10, 2015 when he was lifting packages and sustained injuries to his mid-back and lower back. [Id.] Dr. Soyer conducted a physical examination of Plaintiff's lumbar spine and noted that Plaintiff had no paraspinal spasms, and minimal to moderate paraspinal tenderness to light touch. [R. 1183-84.] Dr. Soyer further noted that Plaintiff's straight leg raising test was positive at 45 degrees bilaterally, but that his seated straight leg raising test was negative. [R. 1184.] Dr. Soyer diagnosed Plaintiff with a lumbar spine sprain/exacerbation of lumbar spondylosis. [Id.] Dr. Soyer also assessed Plaintiff's work capabilities and determined that Plaintiff was “capable of maintaining light employment” with the restriction that he could only exert up to 20 pounds occasionally. [Id.]
On February 3, 2017, Plaintiff had an MRI of his lumbar spine that was studied by Anand Kakkanatt, M.D. [R. 1207.] Based on the MRI, Dr. Kakkanatt concluded that Plaintiff had mild central spinal stenosis at ¶ 3-L4, a mild to moderate central spinal stenosis in the lateral stenosis at the L4-L5, and a broad-based posterior disc herniation that came into close proximity with the descending right S1 nerve root. [Id.]
On March 6, 2017, Plaintiff had an appointment with Esteban Cuartas, M.D. [R. 583.] Dr. Cuartas noted that Plaintiff reported joint pain, stiffness, muscle pain, and back pain, and more specifically noted that Plaintiff reported pain “in the region corresponding to dermatomes bilaterally, S1.” [R. 582.] He also noted that Plaintiff walked with a normal gait and had a normal station. [Id.] Dr. Cuartas further noted that Plaintiff had a positive ipsilateral sign for his straight leg raises and that Plaintiff had intermittent symptoms of claudication, where his legs go numb. [R. 583.] Dr. Cuartas stated that Plaintiff's symptoms were moderate, and that he had azial back pain and that there was a slight improvement. [Id.] He also observed that Plaintiff had a 100% temporary impairment. [Id.] Plaintiff had another appointment with Dr. Cuartas on March 24, 2017. [R. 559.] At that appointment, Dr. Cuartas again noted that Plaintiff had back pain and stiffness. [R. 560.] He also again noted that Plaintiff walked with a normal gait and had a normal station. [Id.] Dr. Cuartas also observed that Plaintiff's symptoms were moderate and that Plaintiff had axial back pain but his symptoms were improving. [Id.] Finally, Dr. Cuartas noted that Plaintiff had a 100% temporary impairment. [R. 561.]
Dr. Cuartas noted that Plaintiff had intermittent “sx” which is the medical abbreviation for symptoms. See Practical Guide to Clinical Medicine, UC San Diego School of Medicine, meded.ucsd.edu/clinicalmed/abbreviation.html (last visited November 22, 2022).
2. After Plaintiff's Alleged Onset Date But Prior to Plaintiff's Date of Last Insured, June 30, 2018
On April 10, 2017, Plaintiff had an appointment with Enrique Sanz, M.D. [R. 528.] Dr. Sanz noted that Plaintiff reported dull pain in his lower back and numbness down both of his legs. [Id.] Dr. Sanz observed that Plaintiff had a normal gait, and that palpitation of the back showed no tenderness or muscle spasm. [R. 530.] Dr. Sanz further observed that Plaintiff had a normal range of motion with pain upon extension and that Plaintiff's straight leg raises tests were negative. [R. 530-31.] Dr. Sanz agreed with Dr. Kakkanatt's impression of Plaintiff's February 3, 2017 MRI. [R. 531.] Dr. Sanz's impression was that Plaintiff had persistent lumbar spine pain with radicular symptoms. [R. 532.] He further noted that Plaintiff's MRI “showed discogenic disease at the L3-4, L4-5, and the L5-S1 levels.” [Id.] Dr. Sanz further observed that “[t]here is mild stenosis at the L3-4, moderate at the L4-5 level, and a more right sided [herniated nucleus pulposus] at the L5-S1 level.” [Id.] Dr. Sanz also noted that Plaintiff had a “100% temporary impairment.” [Id.]
Dr. Sanz stated that Plaintiff had right sided “HNP”, which is the medical abbreviation for “herniated nucleus pulposus.” See Sang Heon Lee et al., The Factors Associated With the Successful Outcomes of Percutaneous Disc Decompression in Patients With Lumbar Herniated Nucleus Pulposus, 35 Annals of Rehabilitation Medicine 735, 735 (2015), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4654080/.
On April 13, 2017, Plaintiff had another appointment with Dr. Cuartas. [R. 524.] Dr. Cuartas noted that Plaintiff reported joint pain, stiffness, muscle pain, and back pain. [R. 523.] He also noted that Plaintiff walked with a normal gait and had a normal station. [Id.] Dr. Cuartas further noted that Plaintiff reported “decreased sensation to light tough corresponding to dermatomes bilaterally, S1, L5,” and intermittently when walking. [Id.] Dr. Cuartas noted that Plaintiff's symptoms were moderate and that he had axial back pain and radicular pain. [R. 524.] He further noted that Plaintiff's symptoms were “stable, not worsening, but not improving fully.” [Id.] Finally, Dr. Cuartas noted that Plaintiff had a “100% temporary impairment.” [Id.]
Plaintiff had another appointment with Dr. Cuartas on April 27, 2017. [R. 506] At that appointment, Dr. Cuartas noted that Plaintiff reported back pain, and more specifically, Plaintiff reported pain in the regions corresponding to the dermatomes bilaterally and that the pain and symptoms were “in the buttock and posterior thigh only[.]” [R. 506-07.] Dr. Cuartas observed that Plaintiff's symptoms were moderate but his condition was worsening. [Id.] He again noted that Plaintiff had a “100% temporary impairment.” [Id.] On May 1, 2017, Dr. Cuartas completed a narrative report for Plaintiff's workers' compensation. [R. 509.] Dr. Cuartas noted that Plaintiff's diagnosis or the nature of his injury was “[r]adiculopathy, lumbar region”, “ [o]ther intervertebral disc [displacement]”, and “[s]pinal stenosis, lumbar region”. [Id.] Dr. Cuartas further noted that Plaintiff's temporary impairment was 100%. [Id.]
On May 3, 2017, Plaintiff had an appointment with Ronald Moskovich, M.D. [R. 1432.] Dr. Moskovich noted that Plaintiff reported experiencing pain radiating down both legs and that walking provoked numbness from the waist downwards. [Id.] He further noted that Plaintiff reported varying symptoms and that he was sometimes able to walk some distance, but other times was very limited. [Id.] He also examined Plaintiff and observed that Plaintiff's straight leg raise test was negative on the right but positive on the left at 50 degrees. [R. 1433.] Dr. Moskovich also reviewed Plaintiff's MRIs from June 19, 2015, September 20, 2016, and February 20, 2017. [R. 1434.] Dr. Moskovich's assessment was that Plaintiff “has multilevel lumbar spondylosis with disc herniations at ¶ 3-4, L4-5 and L5-S1.” [Id.] Dr. Moskovich further noted that Plaintiff “clinically exhibits varying degrees of neurogenic claudication and clinical evaluation reveals S1 nerve root weakness, considering the left gastrocsoleus weakness.” [Id.] Dr. Moskovich determined that Plaintiff was “disabled from his occupation” and that he “failed to improve with active management with physical therapy.” [Id.]
On May 18, 2017, Plaintiff had another appointment with Dr. Cuartas. [R. 502.] Dr. Cuartas noted that Plaintiff walked with a normal gait and had a normal station. [R. 501.] Dr. Cuartas further noted that Plaintiff reported joint pain, stiffness, muscle pain, pain causing awakening, back pain, and numbness/tingling. [Id.] Dr. Cuartas specifically noted that Plaintiff reported “pain in the region corresponding to dermatomes on the right, L5.” [Id.] Dr. Cuartas discussed surgical options with Plaintiff at this appointment. [R. 502.] He also noted that Plaintiff had a “100% temporary impairment.” [Id.]
On May 23, 2017, Plaintiff had an appointment with Martin Quirno, M.D. [R. 301, repeated at R. 470, R. 1313.] Dr. Quirno noted that Plaintiff reported “severe lower back pain . . . with associated bilateral lower extremity radiculopathy” and “with associated numbness and tingling[.]” [R. 300.] Dr. Quirno noted that this was “consistent with neurogenic claudication type symptoms.” [Id.] Dr. Quirno also conducted a physical examination of Plaintiff. He observed that Plaintiff was able to walk with a “normal reciprocal gait” and could walk on his heels and toes without difficulty. [R. 300.] He noted that Plaintiff had “mild tenderness to palpation in the paraspinal muscles mostly L4-L5, and L5-S1.” [Id.] He further noted that Plaintiff had negative straight leg raise bilaterally. [Id.] Dr. Quirno reviewed an MRI of Plaintiff's lumbar spine and noted that Plaintiff had “a small disc herniation at ¶ 3-L4 with mild bilateral recess stenosis.” [Id.] Dr. Quirno further noted that at ¶ 4-L5 there was “a large central disc herniation with severe bilateral recess stenosis and mild foraminal stenosis” and at ¶ 5-S 1 there was “a small central disc herniation with a very mild bilateral recess stenosis and mild-to-moderate foraminal stenosis.” [Id.] Based on his examination of Plaintiff, Dr. Quirno referred Plaintiff for epidural injections. [R. 301.]
On May 23, 2017, Plaintiff also had an appointment with Syed Husain, M.D. [R. 497.] Dr. Husain noted that Plaintiff's lumbar spine was “positive tenderness to palpation at ¶ 3, L4, and L5 facet joints bilaterally.” [Id.] Dr. Husain also observed that Plaintiff had a negative straight leg test bilaterally and further observed that Plaintiff's sensation to “light touch was intact in bilateral lower extremities.” [Id.] Based on an MRI, Dr. Husain observed that Plaintiff had “broad based bulging with central subligamentus disc herniation” between the L3 and the L4 that “contacts and flattens and deforms the thecal sac posteriorly.” [R. 496.] Dr. Husain further observed that there was a “bilateral mild-to-moderate neuroforaminal stenosis below the exiting nerve roots.” [Id.] Between the L4 and the L5, Dr. Husain noted that there was a “diffuse broadbased disc bulge with central disc herniation [that] contacts, flattens, deforms, and displaces the thecal sacs poteriority and resultant spinal stenosis with a maximum AP dimension of 11 mm.” [Id.] Dr. Husain also noted that there was an “L1-L5 diffuse disc bulge with large central disc herniation [that] contacts and flattens and deforms and displaces the thecal sac posteriorly and results in spinal stenosis with a maximum AP dimension of 10-11 mm.” [Id.] Dr. Husain noted that he would schedule Plaintiff for a “bilateral L3-L4 and L4-L5 transforaminal epidural[.]” [Id.]
On June 7, 2017, Plaintiff had an appointment with Ronald Mann, M.D. [R. 333, repeated at R. 1159.] Dr. Mann performed an orthopedic evaluation on Plaintiff and reviewed his medical records in connection with Plaintiff's worker's compensation. [Id.] Dr. Mann noted that Plaintiff reported sharp pain with stiffness, pinching, and achiness in his lower back, with the pain radiating down his legs. [R. 336.] Dr. Mann further noted that Plaintiff's stated capabilities included walking for one block, standing for 10 minutes, and sitting for 20 minutes. [R. 335.] Dr. Mann also observed that Plaintiff was normal in appearance, ambulated with normal gait, sat comfortably, moved his head, neck, and body freely during unguarded conversation, was able to get on the examining table with no assistance, could turn from side to side or back to front freely, and could dress and undress his outerwear with no assistance. [R. 337.] Upon examination of Plaintiff's lumbar spine, Dr. Mann noted that there was no muscle spasm upon palpation, no complaint of tenderness upon palpation, and Plaintiff's straight leg raise test was negative bilaterally. [Id.] Dr. Mann's impression was that Plaintiff had a lumbar spine sprain/strain that was superimposed on preexisting degenerative changes, but that the sprain/strain was resolving itself. [Id.] Dr. Mann also noted there was no evidence of symptom magnification. [Id.] With respect to Plaintiff's ability to work, Dr. Mann stated that Plaintiff would be capable of work with modified duties and limitations on repetitive bending, twisting, carrying, and lifting items over 25 pounds. [R. 338.]
On June 13, 2017, Plaintiff had a CT scan of his lumbar spine conducted by Jessica Berkowitz, M.D. [R. 1103.] Dr. Berkowitz's impression from the scan was that Plaintiff had a “congenitally narrow spinal canal in the lumber region.” [R. 1105.] Plaintiff also had “[m]ultilevel disc bulges and herniations resulting in spinal stenosis at ¶ 3-L4 and L4-L5” and further noted that this was unchanged from Plaintiff's MRI on February 3, 2017. [Id.]
On July 10, 2017, Plaintiff had an epidural steroid injection on both sides of his L3-L4 and his L4-L5. [R. 491.] After the injection, on July 25, 2017, Plaintiff had a follow-up appointment with Dr. Husain. [R. 487.] Plaintiff reported that he had approximately 60-70% pain relief after the injection and that he walks 20 blocks a day. [Id.] Dr. Husain also examined Plaintiff and noted that Plaintiff's lumbar spine was positive for tenderness upon palpation over the L3, L4, and L5 facet joints bilaterally. [Id.] Dr. Husain further observed that Plaintiff's range of motion was limited slightly and that he was positive for tenderness upon palpation in the lumbar paraspinal muscles. [Id.] Dr. Husain also noted that Plaintiff had a negative straight leg test bilaterally. [Id.] On August 7, 2017, Dr. Husain completed a doctor's narrative report in connection with Plaintiff's worker's compensation. [R. 485.] Dr. Husain noted that Plaintiff's temporary impairment was 66-67%. [R. 486.]
On September 12, 2017, Plaintiff had an appointment with Dr. Quirno. [R. 466, repeated at R. 1310.] At the appointment, Plaintiff reported that after received the epidural injection, he initially received significant relief, but since then the pain had “pretty much returned.” [Id.] Dr. Quirno recommended that Plaintiff obtain a second injection, but noted that if the pain returned again, they may need to have a discussion regarding surgery. [Id.] On September 22, 2017, Dr. Husain completed a doctor's narrative report in connection with Plaintiff's worker's compensation. [R. 482.] Dr. Husain noted that Plaintiff's temporary impairment was 100%. [R. 483.]
On December 6, 2017, Plaintiff had an appointment with Dr. Mann as an orthopedic medical re-evaluation in connection with Plaintiff's worker's compensation. [R. 341, repeated at R. 1187.] Dr. Mann noted that Plaintiff reported sharp pain, stiffness, pinching, and achy pain in his lower back, and that the pain occurs all day. [R. 344.] Dr. Mann further noted that Plaintiff's stated capabilities included walking with limitation, standing for five minutes, and sitting for five minutes. [R. 342.] Dr. Mann also observed that Plaintiff ambulated with normal gait, sat comfortably, was able to get on the examining table with no assistance, could turn from side to side or back to front freely, and could dress and undress his outerwear with no assistance. [R. 345.] Upon examination of Plaintiff's lumbar spine, Dr. Mann noted that there was no muscle spam upon palpation, but there was a complaint of mild tenderness upon palpation and Plaintiff's straight leg raise test was positive bilaterally. [Id.] Dr. Mann's diagnosis was that Plaintiff had a lumbar spine sprain/strain that was superimposed on preexisting degenerative changes, but that the sprain/strain was resolving itself. [Id.] Dr. Mann also noted there was no evidence of symptom magnification. [Id.] With respect to Plaintiff's ability to work, Dr. Mann stated that Plaintiff would be capable of light duty work with limitations on repetitive bending, twisting, and carrying and lifting items over 15 pounds. [R. 346.]
On October 6, 2017, Plaintiff received his second epidural injection. [See R. 481.] On December 19, 2017, Plaintiff had a follow-up appointment with Dr. Husain. [Id.] Dr. Husain noted that Plaintiff stated he did not receive any pain relief from the injection and that he continues to have back pain that extends down to his legs. [Id.] Dr. Husain noted that Plaintiff was positive for tenderness upon palpation over the lumbar paraspinal muscles and positive for tenderness upon palpation over the L3, L4, and L5 facet joints bilaterally. [Id.] Dr. Husain also noted that Plaintiff was positive for his straight leg test on the left. [Id.]
Plaintiff also had an appointment with Dr. Quirno on December 19, 2017. [R. 463, repeated at R. 1309.] Dr. Quirno noted that Plaintiff's pain was very severe and that he had intermittent numbness in his lower extremities in no particular distribution. [R. 463.] Dr. Quirno further noted that because Plaintiff had failed non-operative treatments, they would possibly discuss surgery after Plaintiff obtained updated MRIs. [Id.] On December 27, 2017, Dr. Quirno completed a doctor's narrative report in connection with Plaintiff's worker's compensation. [R. 462.] In the report, Dr. Quirno noted that Plaintiff has a 100% temporary impairment. [Id.]
On December 29, 2017, Plaintiff had an updated MRI that was reviewed by Robert Tash, M.D. [R. 307.] Dr. Tash noted that between the L3 and L4, there was a “diffusely bulging disc with a small central annular tear/herniation” and “congenitally short pedicles and bilateral facet joint arthropathy.” [Id.] Dr. Tash noted that the combination of these yielded a “mild central spinal canal and bilateral lateral recess stenosis.” [Id.] With respect to Plaintiff's L4-L5, Dr. Tash noted that there was “a diffusely bulging disc with a broad-based central disc herniation” and “congenitally short pedicles and bilateral facet joint arthropathy.” [Id.] Dr. Tash noted that combined, these yielded “mild/moderate central spinal canal and bilateral lateral recess stenosis.” [Id.] Finally, at Plaintiff's L5-S1, Dr. Tash observed that there was a small central disc herniation, but that the herniation did not displace either S1 nerve root. [Id.] In comparison to Plaintiff's February 3, 2017 MRI, Dr. Tash noted that Plaintiff's multilevel disc disease was unchanged. [Id.]
On January 4, 2018, Dr. Husain completed another doctor's narrative report in connection with Plaintiff's worker's compensation. [R. 479.] Dr. Husain noted that Plaintiff's temporary impairment was 100%. [R. 480.] On January 8, 2018, Plaintiff had an electrodiagnostic study done on his lumbar spine. [R. 475.] Dr. Husain interpreted the electrodiagnostic study and determined that there was no evidence of radiculopathy and neuropathy. [R. 476.]
On January 16, 2018, Plaintiff had an appointment with Dr. Quirno. [R. 296, repeated at R. 1308.] Dr. Quirno noted that at his last appointment, Plaintiff complained of severe numbness and weakness in his L5-S1 distribution, but that at the current appointment, Plaintiff indicated that these symptoms had been getting worse and that he was having episodes where he stands up and he cannot feel his legs. [R. 296.] Dr. Quirno noted that Plaintiff's new MRI and CT scan revealed that Plaintiff had “severe bilateral recess stenosis at ¶ 3-L4 and L4-L5 with severe foraminal stenosis . . . with retrolisthesis and a bone spike within the foramen at the L4-L5 as well as the L5-S1 region.” [Id.] Based on these findings, Dr. Quirno recommended that Plaintiff undergo surgery. [Id.] On January 24, 2018, Dr. Quirno completed a doctor's narrative report in connection with Plaintiff's worker's compensation. [R. 459.] Dr. Quirno indicated that Plaintiff had a 100% temporary impairment. [Id.]
On February 6, 2018, Plaintiff had another appointment with Dr. Quirno. [R. 295, repeated at R. 1307.] Dr. Quirno noted that Plaintiff's numbness and weakness had been getting worse. [R. 295.] Dr. Quirno expressed concern that Plaintiff had a central stenosis and compression in his thoracic spine and requested Plaintiff obtain a thoracic MRI before doing a lumbar spine procedure. [Id.] On February 28, 2018, Plaintiff had an MRI of his cervical spine observed by Prakash Patel, M.D. [R. 305.] Dr. Patel's impression was that Plaintiff had a congenitally small central spinal canal, and “[n]o evidence of focal disc herniation or acquired spinal canal stenosis.” [Id.] On March 1, 2018, Dr. Patel also conducted an MRI of Plaintiff's thoracic spine. [R. 304.] Dr. Patel's impression was that there were mild degenerative changes, but “[n]o significant disc herniation or spinal canal stenosis.” [Id.] On March 6, 2018, Plaintiff had an appointment with Dr. Quirno. [R. 294, repeated at R. 1306.] Dr. Quirno observed the MRIs of Plaintiff's cervical and thoracic spine and scheduled Plaintiff for a transforaminal lumber interbody fusion on his L4-L5 and L5-S1 and a decompression laminectomy on his L3-L4 for the next day. [R. 294.] Indeed, on March 7, 2018, Dr. Quirno performed the surgery on Plaintiff. [R. 450.]
Dr. Quirno identified the procedure on Plaintiff's L4-L5 and L5-S1 as a “TLIF”, which is the medical abbreviation for a transforaminal lumber interbody fusion. See Lars Hackenberg et al., Transforaminal Lumbar Interbody Fusion: A Safe Technique with Satisfactory Three to Five Year Results, 14 European Spine Journal 551, 551 (2005), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3489237/.
On March 19, 2018, Dr. Quirno completed a doctor's narrative report in connection with Plaintiff's worker's compensation. [R. 455.] Dr. Quirno indicated that Plaintiff had a 100% temporary impairment. [R. 456.] On March 27, 2018, Plaintiff had an appointment with Dr. Quirno. [R. 293, repeated at R. 1305.] Dr. Quirno noted that after surgery, Plaintiff reported that the numbness and pain he had in his bilateral lower extremities was completely gone, and although he still had some anterior thigh pain, it was very mild. [R. 293.] Plaintiff also reported that after the surgery, he was able to walk a mile and a half. [Id.] On April 3, 2018, Dr. Quirno completed another doctor's narrative report in connection with Plaintiff's worker's compensation. [R. 445.] Dr. Quirno indicated that Plaintiff had a 100% temporary impairment. [R. 446.]
On April 24, 2018, Plaintiff had another appointment with Dr. Quirno. [R. 292, repeated at R. 1304.] Dr. Quirno noted that Plaintiff's back pain was much improve and his leg pain and numbness were completely resolved. [R. 292.] Dr. Quirno noted that he developed bilateral upper extremity cubital tunnel syndrome, but that he did a positioning which helped resolve the issue. [Id.] On May 4, 2018, Dr. Quirno completed another doctor's narrative report in connection with Plaintiff's worker's compensation. [R. 442.] Dr. Quirno indicated that Plaintiff had a 100% temporary impairment. [R. 443.]
On June 5, 2018, Plaintiff met with Dr. Quirno again for another follow-up appointment. [R. 291, repeated at R. 1303.] Dr. Quirno noted that Plaintiff was doing very well, but that he was still having some back spasms. [R. 291.] Dr. Quirno further noted that Plaintiff denied any pain in his legs and that he had not taken any pain medication at that point. [Id.] On June 26, 2018, Dr. Quirno completed another doctor's narrative report in connection with Plaintiff's worker's compensation. [R. 439.] Dr. Quirno indicated that Plaintiff had a 100% temporary impairment. [R. 440.]
3. After Plaintiff's Date of Last Insured, June 30, 2018
On July 18, 2018, Plaintiff had an appointment with Dr. Mann in connection with his worker's compensation. [R. 804, repeated at R. 1164, R. 1170.] Dr. Mann noted that Plaintiff reported pain in his low back, but that his symptoms had much improved. [R. 806.] Dr. Mann further noted that Plaintiff's stated capabilities included walking for a quarter mile, standing for 20 minutes, and sitting for 20 minutes. [R. 805.] Dr. Mann also observed that Plaintiff sat comfortably, moved his body freely during unguarded conversation, was able to get on the examining table without assistance, and did not use any assistive devices. [R. 807.] Upon examination of Plaintiff's lumbar spine, Dr. Mann noted that there was no muscle spam upon palpation, but there was a complaint of mild tenderness upon palpation. [Id.] Dr. Mann also noted that Plaintiff's straight leg raise was positive bilaterally. [R. 808.] Dr. Mann's impression was that Plaintiff had a lumbar spine fusion surgery that was healing. [Id.] Dr. Mann also noted there was no evidence of symptom magnification. [Id.] With respect to Plaintiff's ability to work, Dr. Mann stated that Plaintiff was capable of sedentary duties, and that he should not perform work activity requiring bending, twisting, and carrying and lifting items over 5 pounds. [Id.]
On September 11, 2018, Plaintiff had an appointment with Dr. Quirno. [R. 290.] Dr. Quirno noted that Plaintiff reported minimal back pain, but denied any radiculopathy, lower back pain, and significant back pain. [Id.] Dr. Quirno further reported that Plaintiff indicated “some mild pain in some extension of his back intermittently.” [Id.] On September 11, 2018, Dr. Quirno also completed a worker's compensation disability form. [R. 795, repeated at R. 2146.] On the form, Dr. Quirno indicated that Plaintiff had a moderate (50%) temporary impairment. [R. 795.] On September 21, 2018, Dr. Quirno completed a doctor's narrative report for Plaintiff's worker's compensation. [R.797.] Dr. Quirno indicated that Plaintiff had a 50% temporary impairment. [R. 798.]
Repeated at R. 436, R.793, R. 799, R. 800, R. 1285, R. 1302, R. 1877, R. 1878, R. 1244.
On February 26, 2019, Plaintiff had another appointment with Dr. Quirno. [R. 696] Dr. Quirno noted that Plaintiff stated that he still had “some soreness very intermittently to little bit of pain down the left leg in the posterior aspect of the thigh to certain positions.” [Id.] Nonetheless, Plaintiff reported that he was happy with the significant improvements from where he was prior to the surgery. [Id.] Because Plaintiff still reported some soreness in his back, Dr. Quirno requested that Plaintiff get a CAT scan of his lower back. [Id.] On February 26, 2019, Dr. Quirno also completed a worker's compensation disability form, and indicated that Plaintiff was totally disabled and that his temporary impairment was 100%. [R. 697, repeated at R. 723, R. 2133.]
Repeated at R. 785, R. 789, R. 1280, R. 1301, R. 2050, R. 2132.
On March 13, 2019, Plaintiff had a CT scan of his lumbar spine that was reviewed by Robert Greco, M.D. [R. 302 repeated at R. 329, R. 779, R. 1320.] Dr. Greco's impression was that there were postoperative changes at the L4-L5 and L5-S1 levels. [R. 302.] He further noted that there were “mild cystic changes along the inferior endplate of the L4 vertebral body that can be seen with incomplete fusion.” [Id.] He also noted “[m]ild posterior osteophytic ridging at the L5-S1 level” and “[d]isc bulging and possibly a central disc herniation at the L3-L4 level” that was in Plaintiff's prior MRI. [R. 302-03.]
On April 30, 2019, Plaintiff had a follow-up appointment with Dr. Quirno. [R. 288]Dr. Quirno noted that Plaintiff reported significant back pain mostly in Plaintiff's right paraspinal in his lower back. [Id.] Dr. Quirno noted that Plaintiff further reported that the pain was worse when he sits down and extends his back. [Id.] Upon observation of Plaintiff's CT scan, Dr. Quirno noted that there was only partial integration of bone within the interbody space at ¶ 4-L5 and L5-S1, as well as a loose set screw on the left side of the S1. [Id.] Dr. Quirno noted that he would recommend physical therapy and injections, but that if Plaintiff failed to improve, Dr. Quirno would recommend another surgery. [Id.] Dr. Quirno also completed a worker's compensation disability form on April 30, 2019, and indicated that Plaintiff was totally disabled and that he had a 100% temporary impairment. [R. 722.]
Repeated at R. 695, R. 768, R. 776, R. 1281, R. 1300, R. 2136.
In connection with his worker's compensation, Marc Appel, M.D. conducted an independent medical examination of Plaintiff on October 3, 2019. [R. 1176.] In his physical examination of Plaintiff, Dr. Appel noted that Plaintiff was not using a back brace, removed his clothes without difficulty, was not using a cane, did not limp, could stand on his heels and his toes, and could perform half of a squat. [R. 1179.] In examining Plaintiff's back, Dr. Appel noted that Plaintiff's scars were non-tender, there was no spasm, and that the remainder of Plaintiff's back was also non-tender. [Id.] In terms of his impression of Plaintiff's condition, Dr. Appel noted that Plaintiff reported ongoing back pain but that there was no evidence of radiculopathy. [Id.] With respect to Plaintiff's disability, Dr. Appel opined that Plaintiff cannot return to work. [R. 1180.] He noted that Plaintiff has difficulty with prolonged sitting and standing. [Id.] He further noted that it was unlikely Plaintiff could perform sedentary work and that his level of disability would be 100% temporary, and that it was premature to determine permanency. [Id.]
On July 9, 2019, Plaintiff had an appointment with Dr. Quirno. [R. 287.] Dr. Quirno noted that the physical therapy had significantly helped Plaintiff and that the muscle spasms were much better controlled. [Id.] Dr. Quirno further noted that Plaintiff reported that his ability to move and do activities was much better when compared to how he was feeling at the last appointment. [Id.] Dr. Quirno recommended Plaintiff continue with his physical therapy. [Id.] Dr. Quirno also completed a worker's compensation disability form for Plaintiff on July 9, 2019, and indicated that Plaintiff was totally disabled and that he had a 100% temporary impairment. [R. 721.]
Repeated at R. 430, R. 683, R. 692, R. 710, R. 1273, R. 1282, R. 1288, R. 1299, R. 2125, R. 2138, R. 2149.
On October 22, 2019, Plaintiff had another appointment with Dr. Quirno. [R. 286.] Dr. Quirno noted that Plaintiff reported that his pain was improving and denied any leg pain. [Id.] Plaintiff further reported that he had not been doing physical therapy for the past couple of months and that the pain had started to return. [Id.] Dr. Quirno encouraged Plaintiff to continue with physical therapy and to also start an at home exercise program. [Id.] On January 14, 2020, Plaintiff had another appointment with Dr. Quirno. [R.285.] Dr. Quirno noted that Plaintiff was complaining of mechanical and muscle spasms in his back. [Id.] Dr. Quirno further noted that Plaintiff started developing significant muscle spasms, mostly on the left side of his paraspinal, but also on the right. [Id.] Dr. Quirno stated that Plaintiff denied any pain, radiculopathy, or numbness down his legs. [Id.] Dr. Quirno requested Plaintiff obtain another CAT scan in order to review for any signs of a “nonunion” at ¶ 4-L5 or L5-S1, because if so, Plaintiff would be a candidate for revision surgery. [Id.]
Repeated at R. 428, R. 652, R. 655, R. 1289, R. 1298, R. 1587, R. 2153.
Repeated at R. 426, R. 599, R. 602, R. 605, R. 1201, R. 1202, R. 1297, R. 2017, R. 2019.
On February 14, 2020, Plaintiff obtained a CT scan of his lumbar spine that was reviewed by Dr. Kakkanatt. [R. 1215, repeated at R. 1318.] Dr. Kakkanatt observed that between the L3 and L4, there was a broad-based posterior disc herniation which flattened the anterior thecal sac. [R. 1215.] Dr. Kakkanatt further noted that the “conjunction bilateral hypertophic facet joint change and ligament flavum hypertrophy result[ed] in spinal stenosis.” [Id.] Dr. Kakkanatt also observed that at Plaintiff's L5-S1, there was a posterior disc osteophyte complex, but no bony spinal stenosis. [Id.] Dr. Kakkanatt's impression was that Plaintiff had spinal stenosis at ¶ 3-L4 and bilateral neuroforaminal narrowing at ¶ 5-S1. [R. 1216.]
On February 25, 2020, Plaintiff had an appointment with Dr. Quirno. [R. 1296, repeated at R. 2045.] Dr. Quirno noted that Plaintiff complained mostly of “mechanical pain in his lower back with range of motion and activity.” [R. 1296.] Plaintiff denied any radiculopahty and numbness going down his leg. [Id.] Dr. Quirno reviewed Plaintiff's CT and noted that there was minimal incorporation of the bone graft at ¶ 4-L5 and L5-S1, and also acknowledged the loose screw on the left of the S1. [Id.] Dr. Quirno recommended that Plaintiff undergo revision surgery “from an anterior lumbar interbody fusion, removal of prior TLIF cages and placement of large anterior lumbar interbody fusion with exchange in posterior screws too.” [Id.]
On May 7, 2020, S. Padmaraju, M.D. reviewed Plaintiff's medical record to assess whether Plaintiff was disabled and Plaintiff's residual functional capacity (“RFC”). [R. 66-71.] Dr. Padmaraju determined that Plaintiff was not disabled. [R. 71.] Dr. Padmaraju further determined that Plaintiff would only be able to occasionally lift 20 pounds, frequently lift 10 pounds, and stand or walk for about six hours within an eight hour workday. [R. 67.] Dr. Padmaraju also noted that Plaintiff would be able to sit more than six hours within an eight hour workday and his ability to push or pull was unlimited. [Id.] Dr. Padmaraju further noted that Plaintiff would be able to climb ramps or stairs frequently, climb ladders occasionally, balance occasionally, stoop occasionally, kneel occasionally, crouch occasionally, and crawl occasionally. [R. 68.] Dr. Padmaraju also noted that Plaintiff would need to avoid concentrated exposure to vibrations and hazards. [R. 68-69.]
On July 28, 2020, in connection with Plaintiff's request for reconsideration, A. Vinluan, M.D. reviewed Plaintiff's medical record. [R. 77-83.] Similar to Dr. Padmaraju, Dr. Vinluan determined that Plaintiff was not disabled. [R. 82.] Dr. Vinluan also made determinations similar to Dr. Padmaraju concerning Plaintiff's RFC. [R. 79-80.] Dr. Vinluan determined that Plaintiff would only be able to occasionally lift 20 pounds, frequently lift 10 pounds, and stand or walk for about six hours within an eight hour workday. [R. 79.] Dr. Vinluan also noted that Plaintiff would be able to sit more than six hours within an eight hour workday and his ability to push or pull was unlimited. [Id.] Dr. Vinluan further noted that Plaintiff would be able to climb ramps or stairs frequently, climb ladders occasionally, balance occasionally, stoop occasionally, kneel occasionally, crouch occasionally, and crawl occasionally. [R. 79.] Dr. Vinluan also noted that Plaintiff would need to avoid concentrated exposure to vibrations and hazards. [R. 80.]
On September 15, 2020, Plaintiff had an appointment with Dr. Quirno. [R. 2260.] Dr. Quirno noted that Plaintiff was still complaining of significant back pain mostly mechanical in nature. [Id.] Dr. Quirno further noted that Plaintiff reported “having some intermittent pain down the left leg mostly on the outside anterior of his left leg[.]” [Id.] Dr. Quirno noted that Plaintiff decided to proceed with the revision surgery, but requested that Plaintiff obtain an MRI prior to the surgery. [Id.] On October 1, 2020, Plaintiff had an MRI of his lumbar spine that was reviewed by Dr. Patel. [R. 2261.] Dr. Patel's findings were that at the L3-L4, Plaintiff had a bulging disc with a superimposed small focal central disc herniation which resulted in a mild central canal and bilateral lateral recess stenosis. [Id.] With respect to Plaintiff's L4-L5, Dr. Patel observed that there was a residual mild central spinal canal stenosis. [Id.] With respect to Plaintiff's L5-S1, Dr. Patel noted that there was a moderate left foraminal encroachment and no evidence of a herniated disc. [Id.] On October 6, 2020, Plaintiff had another appointment with Dr. Quirno. [R. 2258.] Dr. Quirno noted that Plaintiff was “mostly complaining of lower back pain, left lower extremity radiculopathy with a bilateral recess stenosis at ¶ 3-L4 in a nonunion from previous TLIF L4-L5 and L5-S1.” [Id.] Based upon these findings, Dr. Quirno recommended the revision surgery for Plaintiff and noted that Plaintiff would provide him with a decision at the next appointment. [Id.]
C. Plaintiff's Hearing Testimony
Vocational expert Sheri Pruitt also testified at the hearing. [R. 51-58.] Her testimony is not germane to the issues before the Court.
At the hearing, Plaintiff testified that he was 39 years old at the time of the hearing. [R. 45.] He further testified that he was six feet and four inches and he weighed 275 pounds. [Id.] He testified that he has an Associate's degree and he is single. [Id.] Plaintiff reported that he worked for UPS for approximately two years before he was no longer able to work. [R. 45-46.] He testified that his worker's compensation claim was still ongoing. [R. 46.] Prior to working for UPS, Plaintiff reported that he worked at Rivertowns Renovation, where he engaged in carpentry work. [Id.] Plaintiff reported that he later worked at ESSR Insured where he also engaged in carpentry work. [Id.] Prior to working for UPS, Plaintiff reported that he worked for Freihofer, delivering bread. [R. 46-47.]
Plaintiff testified that he hurt his back and that he had a fusion surgery in 2018. [R. 47.] He further testified that he was told by his surgeon that the fusion “didn't take” and that he had a revision surgery scheduled for January 25, 2021. [R. 47, 51.] Plaintiff reported that for his pain, he takes Tylenol and Ibuprofen. [R. 47.] He further stated that he had not had any injections recently and that physical therapy would only help for approximately a week before his pain returned. [R. 48.]
Regarding his abilities, Plaintiff testified that he could only walk one to two blocks before he needed to stop and rest. [R.48.] He testified that this was about the same as he was back in 2018. [Id.] He stated that he could sit 10 to 15 minutes, and that this was similar to his condition in 2018. [Id.] He further testified that around 2018, he could not lift five pounds. [R. 49.] He also testified that he was not able to navigate stairs and that around that time he moved his bedroom downstairs in order to avoid the stairs. [Id.] He stated that at that time, he could not reach over his head. [Id.]
With respect to his day-to-day responsibilities, Plaintiff reported that he could shower and dress himself with difficulty. [R. 49.] He also testified that he did minimal cooking, cleaning, and laundry. [R. 49, R. 50.] He stated that he does not do any of the heavier type of cleaning, and that his mother and sister would help him with that. [R. 49.] He further stated that his mom mainly does the shopping for him. [R. 50.] Plaintiff reported that he spends his day laying down to relieve his back pain. [Id.] He stated that he will watch a little TV and read. [Id.]
D. The ALJ's Decision
At the first step of the sequential analysis, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since March 14, 2017, Plaintiff's alleged onset date, through June 30, 2018, his date of last insured. [R. 12.] At the second step, the ALJ determined that Plaintiff had the following severe impairments: obesity; degenerative disc disease of the lumbar spine-with herniation; pseudoarthrosis and status post lumbar fusion L4-L5 and L5-S1. [Id.] At the third step, the ALJ found that through the date of last insured, Plaintiff's impairments or combination of impairments did not meet or medically equal the severity of one of the listed impairments in the Adult Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 13.]
At step four, the ALJ concluded that through the date of last insured, Plaintiff has the RFC to perform light work as defined in 20 C.F.R. 404.1567(b) except:
he could occasionally climb ramps and stairs, but could not climb ropes, ladders and scaffolds; and could occasionally balance, stoop, crouch, kneel and crawl. The [Plaintiff] was precluded from exposure to vibrations, unprotected heights and hazardous machinery.[R. 13.] To reach this conclusion, the ALJ considered “all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence ” in accordance with 20 C.F.R. § 404.1529 and Social Security Ruling 16-3p. [Id.] The ALJ also found that Plaintiff would be unable to perform any past relevant work. [R. 18.]
At step five, in light of the vocational expert's testimony, the ALJ determined that through the date last insured, Plaintiff could be an inspector hand packager (DOT code: 559.687074), a small package assembler (DOT code: 706.684-022), or a shipping and receiving weigher (DOT code: 222.387-074). [R. 19.] The ALJ thus concluded plaintiff “not disabled” as defined in the SSA. [Id.]
III. LEGAL STANDARDS
A. Standard of Review
In reviewing a decision of the Commissioner, a district court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). “It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). Rather, the court's review is limited to “determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).
The substantial evidence standard is even more deferential than the “clearly erroneous” standard. Brault v. Social Sec. Admin, 683 F.3d 443, 448 (2d Cir. 2012). “Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam). “The substantial evidence standard means once an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448 (internal quotation marks omitted).
“Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Comm'r Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotation marks omitted). “In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotation marks omitted). “When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or when the ALJ's rationale is unclear in light of the record evidence, remand to the Commissioner “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. Statutory Disability
The Social Security Act (“SSA” or the “Act”) defines the term “disability” to mean the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). In addition, a person is eligible for disability benefits under the SSA only if
his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.Id. § 423(d)(2)(A).
Social Security Regulations set forth a five-step sequential analysis for evaluating whether a person is disabled under the SSA:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of impairments;
(3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments;
(4) based on a “residual functional capacity” assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing 20 C.F.R. §§ 404.1520(a)(4)(I)-(v), 416.920(a)(4)(I)-(v)). The claimant bears the burden of proof for the first four steps of the process. See Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008). If the claimant proves that his impairment prevents him from performing his past work, the burden then shifts to the Commissioner at the fifth and final step. See Brault, 683 F.3d at 445.
C. Weighing the Medical Evidence
On January 18, 2017, the Commissioner published the “Revisions to Rules Regarding the Evaluation of Medical Evidence,” effective March 27, 2017. 82 Fed.Reg. 5844-01, 2017 WL 168819 (Jan. 17, 2017). The Revisions altered certain longstanding rules for evaluating medical opinion evidence for cases filed after March 27, 2017. Id. at *5844. “Under the new regulations, a treating doctor's opinion is no longer entitled to a presumption of controlling weight.” Prieto v. Comm'r Soc. Sec., 2021 WL 3475625, at *8 (S.D.N.Y. Aug. 6, 2021). Instead, all medical opinions must be evaluated for their persuasiveness based on: (1) supportability; (2) consistency; (3) the medical source's relationship with the claimant; (4) the medical source's specialization; and (5) other relevant factors. 20 C.F.R. §§ 404.1520c(a)-(c).
The ALJ must provide an explanation for the factors of supportability and consistency, because these factors are the most important. See Byrd v. Kijakazi, 2021 WL 5828021, at *15 (S.D.N.Y. Nov. 12, 2021). As to supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical findings(s), the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). As for consistency, “[t]he more consistent a medical opinion(s) or prior administrative finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id. at § 404.1520c(c)(2).
“An ALJ must not only consider supportability and consistency in evaluating medical source opinions but also must explain the analysis of those factors in the decision.” Prieto, 2021 WL 3475626, at *9; see 20 C.F.R. § 404.1520c(b)(2). Further, in most instances, an ALJ must “consider, but need not explicitly discuss, them in determining the persuasiveness of the opinion of a medical source.” Byrd, 2021 WL 5828021, at *16. “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.” Id. (citing 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3)).
IV. DISCUSSION
Plaintiff challenges the ALJ's decision on four grounds. First, Plaintiff argues that he meets the requirements for Listing 1.04C, because he had lumbar spinal stenosis and pseudoclaudication. The Acting Commissioner contends that Plaintiff does not meet the requirements for any of the disorders outlined in Listing 1.04. Plaintiff next argues that the ALJ's conclusion that he was not fully credible is not supported by substantial evidence. The Acting Commissioner argues that the ALJ properly addressed Plaintiff's subjective symptoms. Plaintiff further argues that the ALJ did not properly consider the opinions of his treating physicians. The Acting Commissioner contends that the ALJ in fact properly weighed the treating physician's opinions. Finally, Plaintiff argues that the RFC is not supported by substantial evidence. The Acting Commissioner argues that substantial evidence does support the RFC.
Plaintiff also seems to indicate that he did not receive a full and fair hearing, but does not argue that his hearing was deficient in any way. A review of the hearing transcript also does not demonstrate any fundamental issues with the hearing. Accordingly, the Court will not address this argument.
A. Plaintiff Does Not Meet Listing 1.04C
Plaintiff argues that the evidence supports a finding that he meets Listing 1.04. Specifically, Plaintiff argues that the evidence demonstrates that he had neurogenic claudication symptoms. [Dkt. 21 at 12.] Because neurogenic claudication symptoms are only relevant to Listing 1.04C, Plaintiff seems to be arguing that the evidence supports a finding that he meets Listing 1.04C.
Pseudoclaudication is “pain, tingling, or cramping in the lower back and one or both legs, hips, and buttocks” that is the result of “compression of the spinal nerves in the lumbar (lower) spine.” Neurogenic Claudication, Columbia Neurosurgery, https://www.neurosurgery.columbia.edu/patient-care/conditions/neurogenic-claudication (last visited November 22, 2022). It is also called neurogenic claudication. See id.
Plaintiff bears the burden in proving that he meets the Listing. See Burgess, 537 F.3d at 128. To satisfy this burden, Plaintiff must “meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Perozzi v. Berryhill, 287 F.Supp.3d 471, 482 (S.D.N.Y. 2018) (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990)). To satisfy the requirements of Listing 1.04, Plaintiff must show-in addition to a spinal disorder such as a herniated nucleus pulpous, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position
or posture more than once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04.
“The regulation has since been amended so that Listing 1.04 no longer exists.” Aguirre v. Saul, 568 F.Supp.3d 447, 484 n.2 (S.D.N.Y. Oct. 22, 2021). The equivalent listing here is Listing 1.16, “Lumbar spinal stenosis resulting in compromise of the cauda equina.” 20 C.F.R. § 404, Subpt. P, App. 1 § 1.01.
For Listing 1.04C, an inability to ambulate effectively means “an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 1.00B2b(1). More generally, ineffective ambulation is defined as “having insufficient lower extremity functioning . . . to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities.” Id. In contrast, to ambulate effectively, “ individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living.” Id.
Here, the ALJ concluded that Plaintiff did not meet Listing 1.04, because the evidence did not demonstrate lumbar spinal stenosis resulting in pseudoclaudication. [R. 13.] Plaintiff is correct that the ALJ inaccurately indicated that Plaintiff did not have lumbar spinal stenosis resulting in pseudoclaudication. Indeed, the record demonstrates that Plaintiff had spinal stenosis (see R. 295, R. 296, R. 300, R. 304, R. 305, R. 307, R. 496, R. 509, R. 532, R. 1105, R. 1207, R. 1215, R. 2258, R. 2261), and that Plaintiff had neurogenic claudication (R. 1434), as well as symptoms of neurogenic claudication (R. 300). The Acting Commissioner does not dispute this, but instead argues that nowhere in the record does it indicate that Plaintiff failed to ambulate effectively. The Acting Commissioner is correct. Throughout the record, Plaintiff is shown to have had a normal gait or ambulated effectively. See R. 300, R. 337, R. 345, R. 501, R. 523, R. 530, R. 560, R. 582, R. 807. Accordingly, substantial evidence supports the ALJ's findings that Plaintiff did not meet the requirements of Listing 1.04C. See Figueroa v. Saul, 2019 WL 4740619, at *21 (S.D.N.Y. Sept. 27, 2019) (finding that the record failed to establish that plaintiff had an inability to ambulate effectively and collecting cases). Therefore, I respectfully recommend Your Honor conclude that Plaintiff did not meet the requirements of Listing 1.04C, and the ALJ did not err in so finding.
B. The ALJ's Credibility Conclusion Concerning Plaintiff's Testimony
Plaintiff next argues that the ALJ erred in failing to credit Plaintiff's testimony regarding the intensity, persistence, and limited effects of his symptoms. The Acting Commissioner contends that the ALJ did not err as Plaintiff's statements were not consistent with the medical evidence.
“When determining a claimant's RFC, the ALJ is required to take the claimant's reports of pain and other limitations into account, but is not required to accept the claimant's subjective complaints without question; he may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record.” Barry v. Colvin, 606 Fed.Appx. 621, 622 (2d Cir. 2015). In evaluating a claimant's credibility, an ALJ must engage in a two-step process. First, “the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). If so, the ALJ proceeds to the second step, whereby “the ALJ must consider the extent to which the claimant's symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence of record.” Id. (internal quotation marks and alterations omitted). “The ALJ must consider statements the claimant or others make about his impairment(s), his restrictions, his daily activities, his efforts to work, or any other relevant statements he makes to medical sources during the course of examination or treatment, or to the agency during interviews, on applications, in letters, and in testimony in its administrative proceedings.” Id. (internal quotation marks and alterations omitted). Where an ALJ finds that a claimant's testimony is not credible, the ALJ's finding must “be set forth with sufficient specificity to permit intelligible plenary review of the record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 261 (2d Cir. 1988). The ALJ's credibility determination is entitled to deference. See Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999).
Here, the ALJ appropriately engaged in the two-step process. At the first step, the ALJ determined that Plaintiff was diagnosed with lumbar herniation and degenerative disease that required surgery. [R. 16.] The ALJ observed that following the surgery, “reports reflect improvement” through the date last insured, “with a reported absence of significant pain or lower extremity weakness or numbness and reports of an improved ability to function.” [Id.] At the second step, the ALJ noted that Plaintiff's statements about his debilitating symptoms were not wholly persuasive nor consistent with the evidence. [R. 16.] The ALJ identified several reasons, including Plaintiff's daily activities and that there were not any non-conclusory opinions supported by clinical or laboratory evidence that indicated that Plaintiff was currently disabled. [Id.] With respect to Plaintiff's daily activities, the ALJ relied upon the Function Report completed by Plaintiff on January 28, 2020 and Plaintiff's testimony. [R. 226.] The ALJ noted that Plaintiff reported an ability to drive, which shows the “ability to use hand and foot controls, an ability to turn one's head to consult mirrors, to back up and change lanes, to sit for continuous period of time. It further demonstrates the ability to bend and stoop to get into and out of a car.” [Id.] The ALJ also noted in his Function Report, Plaintiff reported watching TV, washing laundry, visiting family, and cleaning. [Id.] Plaintiff also reported that every other weekend he has his kids and he makes meals for them, bathes them, and washes their clothes. [Id.] Plaintiff also, with some assistance from his girlfriend, cooks with breaks, drives, shops, watches sports, and read books. [Id.] In this Circuit, activities of daily living are an appropriate basis for rejecting a Plaintiff's statements. See Poupore, 566 F.3d at 307 (noting that “the ALJ properly found that [claimant's] testimony about his limitations was not fully credible” based in part on the fact that the claimant “was able to care for his one-year-old child, including changing diapers, that he sometimes vacuumed and washed dishes, that he occasionally drove, and that he watched television, read, and used the computer.”). Accordingly, the ALJ's reasoning behind his determination that the Plaintiff's statements were unpersuasive and inconsistent was appropriate.
Plaintiff argues that his ability to care for his children every other weekend and with the help of his girlfriend does not show an ability for full-time work. Plaintiff's argument does not undermine the ALJ's determination, or the deference afforded to the ALJ's determination.
Indeed, the ALJ took into consideration that Plaintiff only took care of his children every other weekend. [R. 16.] Consistent with Plaintiff's Function Report, the ALJ also noted that Plaintiff reported that when taking care of his children he “[p]repare[s] meals, wash[es] clothes, bath[es] them.” [R. 220.] Accordingly, the ALJ appropriately took into account Plaintiff's reported ability to take care of his children in determining that Plaintiff was not disabled.
Plaintiff next argues that while he does have the ability to drive, it is affected by his inability to sit for long periods of time. To support this assertion, Plaintiff notes that he testified that he could only sit for 10-15 minutes in 2018. As the ALJ noted, Plaintiff indeed testified that he could drive [R. 45], and reported in his Functional Report that he could drive [R. 222]. On his Functional Report, Plaintiff noted that he went out daily and that he would travel only by driving a car. [R. 222.] In spite of Plaintiff's testimony regarding his ability to sit for extended periods of time, the ALJ relied upon Plaintiff's assertion that he could drive and concluded that this indicated his ability “to sit for a continuous period of time.” [R. 16.] This is a valid basis for an ALJ to discount a Plaintiff's credibility. See Poupore, 566 F.3d at 307; see also Perozzi, 287 F.Supp.3d at 478-79. Accordingly, I recommend Your Honor conclude that the ALJ provided acceptable reasons for his credibility determination.
C. The ALJ Properly Considered the Medical Evidence
Plaintiff next argues that the ALJ did not properly consider the opinions from treating physicians. Plaintiff contends that the ALJ rejected the findings of his treating physicians that found, under a worker's compensation analysis, that Plaintiff was 100% disabled. The Acting Commissioner counters that the ALJ appropriately weighed the medical evidence in reaching his determination regarding the Plaintiff's disability.
The standard for disability under the Act is different from the standard for workers' compensation. See Prieto, 2021 WL 3475625, at *13. Because a decision concerning workers' compensation is based on a different standard, that decision is not binding on a disability claim under the Act. See 20 C.F.R. § 404.1504 (“Because a decision by any other governmental agency or a nongovernmental entity about whether you are disabled . . . is based on its rules, it is not binding on us[.]”). Although a disability determination by another agency or entity is not binding, the Agency “will consider all of the supporting evidence underlying the other governmental agency or nongovernmental entity's decision[.]” Id. Accordingly, the ALJ was permitted to find-as he did-that the temporary impairment determinations made by Plaintiff's doctors were not binding. Nonetheless, Plaintiff argues that the ALJ failed to consider the opinions of Drs. Cuartas, Sanz, Husain, and Quirno.
Plaintiff also references a March 6, 2017 report by Dr. DelSavio. First, the report shows that Dr. Cuartas was Plaintiff's examining physician that day, not Dr. DelSavio. Instead, Dr. DelSavio merely electronically signed the report. [R. 583.] Second, the March 6, 2017 report predates Plaintiff's alleged onset date, March 14, 2017, and accordingly, is not relevant to Plaintiff's disability determination. See Carway v. Colvin, 2014 WL 1998238, at *5 (S.D.N.Y. May 14, 2014) (“[M]edical evidence that predates the alleged disability onset date is ordinarily not relevant to evaluating a claimant's disability.”).
As noted above, the regulations regarding the evaluation of medical records were updated on January 18, 2017. Under the new regulations, the definition of “medical opinion” was updated. Ramirez v. Saul, 2021 WL 4943551, at *10 (S.D.N.Y. July 2, 2021). Under the new regulations, a “medical opinion” is defined as “a statement from a medical source about what [a claimant] can still do despite [the claimant's] impairment(s) and whether [a claimant has] one or more impairment-related limitations or restrictions” in the physical demands of work activities. 20 C.F.R. § 404.1513(a)(2). “Thus, a medical opinion must discuss both a claimant's limitations and what the claimant is still capable of doing despite those limitations.” Ramirez, 2021 WL 4943551, at *10 (internal quotation marks and alteration omitted).
1. Dr. Cuartas
On March 24, 2017, Dr. Cuartas evaluated Plaintiff. Plaintiff argues, in essence, that the ALJ should have considered Dr. Cuartas's findings that Plaintiff had a 100% temporary impairment and that Plaintiff's symptoms were consistent with the history of Plaintiff's injury and with Dr. Cuartas's objective findings. For the reasons discussed above, the ALJ could disregard Dr. Cuartas's determination that Plaintiff had a 100% temporary impairment, because such a determination was made in relation to Plaintiff's workers' compensation. See 20 C.F.R. § 404.1504 .
Further, under the new regulations, Dr. Cuartas's findings do not constitute a medical opinion. Dr. Cuartas does not opine on Plaintiff's “ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching)[.]” 20 C.F.R. § 404.1513(a)(2). Instead, the report consists of Plaintiff's status, medical history, current medications, a review of his systems, a physical examination, and an assessment plan. [R. 559-61.] Dr. Cuartas's report neither identifies Plaintiff's limitations, nor opines as to what Plaintiff is still capable of doing despite those limitations. See Ramirez, 2021 WL 4943551, at *10. Therefore, the ALJ did not have “a duty to specifically examine the persuasiveness” of Dr. Cuartas's report. Michael H. v. Saul, 2021 WL 2358257, at *6 (N.D.N.Y. June 9, 2021).
2. Dr. Sanz
On April 10, 2017, Dr. Sanz conducted an evaluation of Plaintiff. Plaintiff argues that the ALJ failed to consider Dr. Sanz's findings that Plaintiff had a 100% temporary impairment. For the reasons discussed above, the ALJ could disregard Dr. Sanz's conclusion concerning Plaintiff's temporary impairment, because such a determination was made in relation to Plaintiff's workers' compensation. See 20 C.F.R. § 404.1504. Further, similar to Dr. Cuartas's report, Dr. Sanz's evaluation of Plaintiff does not identify Plaintiff's limitations or what Plaintiff is still capable of doing despite those limitations. See R. 528-32; see also Ramirez, 2021 WL 4943551, at *10. Accordingly, the ALJ did not have “a duty to specifically examine the persuasiveness” of Dr. Sanz's evaluation. Michael H., 2021 WL 2358257, at *6.
3. Dr. Husain
Plaintiff also points to consultations he had with Dr. Husain as further instances where the ALJ inappropriately disregarded an opinion from a treating or examining physician. Plaintiff first argues that the ALJ failed to take into account Dr. Husain's finding that he had a 100% disability on May 23, 2017. For the reasons noted above, Dr. Husain's finding that Plaintiff had a 100% disability are not binding upon the ALJ. See 20 C.F.R. § 404.1504. Further, Dr. Husain's notes from that day consisted of noting Plaintiff's reported pain, a physical examination of Plaintiff that focused on his lumbar spine, commentary on Plaintiff's MRI, and an assessment plan. [R. 496.] Accordingly, under the new regulations, these notes do not constitute a medical opinion. See Ramirez, 2021 WL 4943551, at *10.
Plaintiff also identifies the notes from his appointment with Dr. Husain on July 10, 2017 and January 4, 2018. Similar to the notes from his May 23rd appointment, the notes from both of these appointments included a discussion of Plaintiff's reported pain, a physical examination of Plaintiff that focused on his lumbar spine, commentary on Plaintiff's most recent MRI, and an assessment plan. [R. 487, R. 481.] Because the notes from these appointments do not identify Plaintiff's limitations, or what Plaintiff is still capable of doing despite those limitations, the ALJ did not have “a duty to specifically examine the persuasiveness” of Dr. Husain's notes. Michael H., 2021 WL 2358257, at *6.
4. Dr. Quirno
Plaintiff also argues that the ALJ did not consider Dr. Quirno's findings that Plaintiff had a 100% impairment from when he began treatment on May 23, 2017, through an evaluation on January 14, 2020. As noted above, the ALJ was not bound by Dr. Quirno's determination that Plaintiff had a “100% temporary impairment” because Dr. Quirno assessed Plaintiff within the context of workers' compensation. See 20 C.F.R. § 404.1504 . Accordingly, Dr. Quirno's determinations concerning Plaintiff's temporary impairment are not relevant.
Nonetheless, the ALJ appropriately considered the evidence that supported Dr. Quirno's determination. See 20 C.F.R. § 404.1504. The ALJ considered Dr. Quirno's notes in the time leading up to Plaintiff's surgery and considered Dr. Quirno's notes after Plaintiff's surgery and after Plaintiff's date of uninsured. [R.14-15.] In fact, the ALJ relied heavily on Dr. Quirno's notes in concluding that Plaintiff has the ability to “perform a range of light work” up until his date of uninsured. [R. 15-16.] Therefore the ALJ appropriately considered the supporting evidence underlying Dr. Quirno's determination, but disregarded the determination itself because it was based on a different framework. See 20 C.F.R. § 404.1504 .
Accordingly, I conclude, and I respectfully recommend Your Honor conclude that the ALJ appropriately considered the medical evidence provided by Plaintiff's treating physicians.
D. The RFC Is Supported By Substantial Evidence
Plaintiff's final argument is that the RFC is not supported by substantial evidence. Plaintiff argues that the RFC is inconsistent with Dr. Mann's opinion because Dr. Mann opined that Plaintiff could not bend, twist, and carry or lift items over five pounds. In contrast, Plaintiff argues, the RFC does not take into consideration the restriction regarding carrying or lifting items over five pounds and the RFC allows for occasional stooping. The Acting Commissioner argues that the RFC is supported by substantial evidence. The Acting Commissioner is correct.
In crafting the RFC, the ALJ considered the opinions provided by Dr. Mann. [R. 17.] The ALJ noted that in a June 2017 evaluation conducted by Dr. Mann, Dr. Mann indicated that Plaintiff was “capable of working modified duties with limitations on repetitive bending, twisting, carrying and lifting items over 25” pounds. [Id.] The ALJ determined that this opinion was persuasive, “as it is consistent with and supported by a thorough exam demonstrating some restriction in lumbar ranges of motion but no neurological or gait abnormality.” [Id.] The ALJ then considered an evaluation performed by Dr. Mann in December 2017. The ALJ observed that Dr. Mann opined that Plaintiff was “capable of light duty work activity with limitations on repetitive bending, twisting, carrying and lifting items over 15 pounds.” [Id. (internal citation omitted).] The ALJ found this opinion persuasive, “as it is consistent with and supported by a thorough exam demonstrating mild tenderness, some restriction in lumbar ranges of motion but no muscle atrophy or neurological abnormality.” [Id.] Nonetheless, the ALJ also concluded that the part of the opinion that determined that Plaintiff could lift no more than 15 pounds was not persuasive, “as it is not supported by the [Plaintiff's] activities of daily living including the ability to cook, clean and shop”, “[n]or is it consistent with other opinions of record indicating the [Plaintiff] can lift and/or carry up to 20 pounds occasionally.” [Id. (internal citation omitted).] The ALJ also reviewed Dr. Mann's opinion from July 2018. [Id.] The ALJ determined that it was generally persuasive and that Plaintiff was “limited to sedentary duties at that time, not involving bending, twisting, carrying or lifting items over 5 pound[s.]” [Id.] The ALJ determined that “the restriction of lifting and carrying up to 5 pounds is not supported by other medical records and is not consistent with [Plaintiff's] activities of daily living, including his reported ability to shop, clean and cook.” [Id. (internal citation omitted).]
In assessing Dr. Mann's opinion, and determining that portions of it were not persuasive, the ALJ appropriately addressed the factors of supportability and consistency. Regarding supportability, the ALJ acknowledged that in general Dr. Mann's findings were based upon an examination of Plaintiff and a review of Plaintiff's records. [R. 17.] This supports the ALJ's overall conclusion that Dr. Mann's reports were persuasive. [Id.] Regarding inconsistency, the ALJ appropriately determined that Dr. Mann's finding that Plaintiff could not lift items over 5 pounds was inconsistent with Plaintiff's reported activities of daily living. See Riaz v. Comm'r Soc. Sec., 2022 WL 4482297, at *4 (S.D.N.Y. Sept. 27, 2022) (identifying activities of daily living as an appropriate consideration for the inconsistency factor). Because the ALJ adequately considered both supportability and consistency in rejecting some of Dr. Mann's findings, the ALJ's rejection of portions of Dr. Mann's findings was sufficient under the new regulations. See Rodriguez v. Kijakazi, 2022 WL 3211684, at *15 (S.D.N.Y. Aug. 9, 2022).
Plaintiff also argues that the portions of Dr. Mann's opinion that the ALJ found persuasive were not adopted into the RFC. Specifically, Plaintiff argues that Dr. Mann opined that he could do no bending or twisting, but the RFC allows for occasional stooping and does not prescribe any limits for twisting. However, even where an “ALJ's determination does not perfectly correspond with any of the opinions of medical sources cited in his decision,” an ALJ is nonetheless “entitled to weigh all of the evidence available to make a residual functional capacity finding that was consistent with the record as a whole.” Trepanier v. Comm'r Soc. Sec., 752 Fed.Appx. 75, 79 (2d Cir. 2018). Here, although the ALJ found Dr. Mann's opinions persuasive, the ALJ was not obligated to adopt Dr. Mann's opinions wholesale into the RFC. Importantly, Dr 2018 opinion is the only one of his assessments that prohibited Plaintiff from ben twisting. [R. 17.] Otherwise, Dr. Mann's opinions indicated that Plaintiff had li repetitive bending and twisting. [Id.] The ALJ contextualized Dr. Mann's July 2 noted that they were “supported by the context of recovery from surgery.” [Id.] RFC based solely off of that opinion would not have been consistent with the rec As Dr. Quirno's notes indicate, Plaintiff recovered from his surgery and reported improvement in his symptoms. [See R. 285-88, R. 290, R. 696, R. 1296, R. 2258 Further, the RFC's allowance for occasional stooping was consistent with the ass state agency doctors, Dr. Padmaraju and Dr. Vinluan. [R. 68, R. 79.] According recommend Your Honor conclude that the ALJ did not err in his consideration of opinion and the RFC is supported by substantial evidence.
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that Your Hono Plaintiff's motion for judgment on the pleadings, GRANT the Acting Commissi judgment on the pleadings.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. See also Fed.R.Civ.P. 6(a), (b), (d). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Kenneth M. Karas, at the Honorable Charles L. Brieant, Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. Requests for extensions of time to file objections must be made to Judge Karas.