Opinion
21-CV-00914 (VSB)(SN)
08-11-2022
SEAN VALDES, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
TO THE HONORABLE VERNON S. BRODERICK:
REPORT & RECOMMENDATION
SARAH NETBURN. United States Magistrate Judge.
Sean Valdes seeks review of the decision of the Commissioner of Social Security (the “Commissioner”) finding that he was not disabled or entitled to disability insurance benefits (“DIB”) under the Social Security Act (the “Act”). The parties have cross-moved for judgment on the pleadings. I recommend that Valdes's motion be denied and the Commissioner's motion granted.
BACKGROUND
I. Administrative History
Valdes applied for DIB on November 13, 2019. See Administrative Record (“R.”) 15. He alleged that he was disabled beginning January 1, 2017, due to post-traumatic stress disorder (PTSD), back injuries, anxiety, depression, and sleep apnea, among other impairments, and was insured through June 30, 2019. R. 15, 70, 157-63. His application was denied, and he requested a hearing before an administrative law judge (“ALJ”) to review his case. R. 15. Valdes appeared for a telephonic hearing before ALJ Raymond Prybylski on August 31, 2020, and ALJ Prybylski issued a decision denying his claim on September 25, 2020. R. 15-33. On December 8, 2020, the Appeals Council denied Valdes's request for review, making the ALJ's decision final. R. 1-3; see 20 C.F.R. § 404.981; 42 U.S.C. § 405(g).
II. Valdes's Civil Case
Valdes filed his complaint on February 2, 2021, seeking review of the ALJ's decision. See ECF No. 1. He requested that the Court set aside the decision and grant him DIB or, alternatively, remand the case for further proceedings. Id. at 3. The Commissioner answered by filing the administrative record, and the parties cross-moved for judgment on the pleadings. See ECF Nos. 14, 24, 26. Valdes argues that the ALJ's determination of disability was not supported by substantial evidence because the ALJ's residual functional capacity (“RFC”) determination did not properly consider the opinions of Valdes's treating physicians and did not properly consider certain criteria as to Valdes's limitations, and the ALJ erred in accepting the vocational expert's testimony as to jobs available in the national economy. See ECF No. 25. The Commissioner contends that the ALJ's RFC determination was supported by substantial evidence and that the ALJ properly found that Valdes could perform a job available in the national economy. See ECF No. 19.
III. Factual Background
A. Non-Medical Evidence
Valdes was born in 1980 and was between 36 and 39 years old during the period at issue. R. 15, 31, 45. He served in the military from 2004 to 2010. R. 45, 48-49. During his two military tours, explosives frequently hit Valdes's compound, and he was once knocked unconscious for several minutes. R. 49, 54. After he left the military, he was homeless for multiple years and moved around from job to job. R. 51. He also started having shoulder pain. R. 54. Valdes had trouble with alcohol right after leaving the military, but no longer had issues at the time of the hearing. R. 55.
In 2017, Valdes was struck head-on by an SUV. R. 57-58. He was driving at around 25 miles per hour, but the SUV was driving at least 60 miles per hour. R. 58. Valdes's head struck the steering wheel, and the car crash made his back and neck pain worse. R. 58.
The Department of Veterans Affairs (“VA”) gave Valdes a 100 percent disability rating around 2018 (i.e., he was considered “totally and permanently disabled”) based in part on PTSD and a traumatic brain injury (TBI) caused by his military tours. R. 49, 176. At the time of the hearing, Valdes was receiving care from multiple doctors at the VA and received some physical therapy outside the VA. R. 49, 56-57.
In 2019, Valdes earned a bachelor's degree in criminal justice. R. 46. Attending college in person was a mental and physical challenge for Valdes because it required using mass transit and remaining seated during class. R. 46-47. He struggled to use the subway to get to school because the confining space worsened his paranoia and anger, leading to multiple verbal altercations. R. 55-56. He missed a lot of class because he could not get to school. R. 60. Valdes maintained a 4.0 grade point average for one year and graduated with a 3.0 average overall. R. 46. At the time of the hearing, Valdes did not use public transportation. R. 60.
After he graduated, Valdes looked for a job in law enforcement, such as probation or parole work. R. 47. He was hired for multiple jobs in the criminal justice field but ultimately declined the positions because they were geographically inconvenient and because they would involve sitting for eight hours, which he would not be able to do without standing. R. 48. His last job was at a Department of Motor Vehicles (“DMV”) location, where he worked about three days a week. R. 48, 50-51. He left the DMV position because sitting for seven to eight hours was very difficult for him, and he could not take breaks to get up. R. 51. He also found interacting with the public taxing and got into verbal altercations with some customers. R. 51-52.
Valdes described his job capabilities as substantially decreasing over the years leading up to the hearing and expressed that it was difficult to know that he could not be a reliable employee. R. 52. He had a lot of trouble with consistent attendance because he often woke up with severe pain in his shoulders and could not move quickly or get out of bed. R. 52-53.
Valdes testified at the hearing that if he had a job where he was supposed to stand for an eight-hour shift, he would be able to stand for 10 to 15 minutes at the most. R. 59. Similarly, if he had a job where he had to sit, he would be able to sit for 10 to 15 minutes at the most. R. 60. He had to lie down during the day and had trouble concentrating on simple tasks. R. 60. At the time of the hearing, he wore a back brace. R. 61.
Christina Boardman, a vocational expert, also testified at Valdes's hearing. R. 61-66. She classified Valdes's past work as a field artillery crew member as exertionally heavy with a specific vocational preparation (“SVP”) level of 3. R. 62. Boardman was asked to consider a hypothetical person of Valdes's age, education, and work experience who could perform a full range of sedentary work but could never climb any ladders, ropes, or scaffolds, could occasionally stoop, kneel, crouch, or crawl, could perform only simple tasks, could tolerate few (if any) workplace changes, and could tolerate only occasional interaction with the public, co-workers, or supervisors. R. 62-63. She testified that such a person could not perform Valdes's past work but could work as an addresser (6,000 estimated positions in the country), table worker (3,800 estimated positions in the country), or assembler (4,000 positions in the country). R. 63. At the ALJ's request, Boardman clarified that those jobs were the most numerous that she could identify. R. 63-64.
An SVP level of 3 indicates that it would take a claimant between one and three months to learn the techniques, acquire the information, and develop the facility needed for average performance in the job. Soc. Sec. Admin., Program Operations Manual System, at ¶ 25001.001A.77, https://secure.ssa.gov/poms.nsf/lnx/0425001001 (last visited Mar. 8, 2022).
Boardman also testified that any more than one absence per month would preclude a person from pursuing any of the hypothetical vocational possibilities she had described, as would a half-hour of tardiness more than once a month if it were a pattern of behavior. R. 64-66. Similarly, only 15 percent of off-task behavior a day would be tolerated at any of these jobs. R. 64. If the hypothetical worker's anger issues interfered with his work, they would lead to him losing his job. R. 64.
B. Treating Medical Evidence
1. Kevin Zhang, MD
Dr. Zhang was Valdes's primary care physician in 2018 and 2019. R. 269, 292-93, 319, 445. In May of 2018, Dr. Zhang increased Valdes's muscle relaxant dosage and recommended that he continue taking Naproxen as pain medication. R. 351. That August, Valdes reported pain between a 7 and 9 out of 10 most days that often disabled him for hours at a time. R. 425. Pain medication was unhelpful. R. 425. In October of 2019, Valdes reported lower back and neck pain. R. 269. Dr. Zhang changed his pain medication and again increased his muscle relaxant dosage. R. 270.
On October 9, 2019, Dr. Zhang prepared a questionnaire on Valdes's behalf. R. 251. Dr. Zhang described Valdes's diagnoses as PTSD and lumbar spondylosis and stated that Valdes was being treated with physical therapy, counseling, and pain medications. R. 251. Although Valdes's prognosis was “good,” his impairment was expected to be long-term. R. 251. Dr. Zhang further opined that Valdes should not be in crowded or noisy places, that he should avoid interpersonal stress, and that he should avoid heavy lifting, bending, strenuous physical activity, and prolonged immobility. R. 251.
An October 9, 2019 treatment note from Dr. Zhang reports that pain control with “current therapy” was acceptable to Valdes. R. 338. Then, on December 2, 2019, Valdes noted his pain level an 8 out of 10, and that he could ambulate without assistance. R. 333. That day, Valdes reported feeling down, depressed, or hopeless nearly every day. R. 335.
On August 17, 2020, Dr. Zhang wrote a letter stating that, based on a comprehensive physical assessment, Valdes's mobility was limited. R. 445. That same day, Dr. Zhang prepared a medical source statement for Valdes. R. 446-51. He opined that Valdes experienced pain in multiple joints, anxiety, daytime fatigue, nightmares, dizziness, and parasthesia (i.e., tingling or prickling). R. 446. Valdes had reduced range of motion in the neck, back, and hips, joint instability, impaired sleep, muscle spasms and weakness, and abnormal posture and gait. R. 446. He also suffered from depression, anxiety, and PTSD. R. 447.
According to Dr. Zhang, Valdes's pain was severe enough to interfere with his attention and concentration constantly, and Valdes was severely limited in his ability to deal with work stress. R. 447. Valdes could sit continuously for a maximum of less than 15 minutes and would need to walk about after that period for less than 15 minutes. R. 447. Valdes would also need to elevate both legs up to six inches while sitting to minimize his pain. R. 447. Valdes could sit for a cumulative four hours during an 8-hour workday. R. 448. He could stand or walk about for a maximum of less than 15 minutes and would need to alternate postures after that time by lying down or reclining for one hour. R. 448. In total, Valdes could stand or walk around for less than one hour during an 8-hour workday. R. 448. To relieve pain, he would need a morning break, lunch period, and afternoon break, along with additional rest. R. 448-49. Valdes would need to lie down for less than one hour during an 8-hour workday. R. 449.
Valdes could occasionally lift one to five pounds but never more, could never balance or stoop, and could never flex or rotate his neck. R. 449. He could occasionally reach with either hand and could frequently handle or finger. R. 450. He did not need an assistive device to walk or stand. R. 450. His impairments were likely to cause him to be absent from work more than three times a month. R. 451.
2. Jeffrey Fine, MD
Valdes saw Dr. Fine for his PTSD from 2016 to 2019. R. 273, 292-95, 320. Throughout that time, Valdes missed a number of appointments. Id. In March of 2017, Valdes was having nightmares two or three times a week and remained depressed and somewhat angry. R. 438. That May, Valdes reported that his concentration and focus were “fair” and had improved since increasing his medication dosage. R. 437. He had disrupted sleep, especially without medication, and intermittent nightmares. R. 437. Dr. Fine renewed his prescription for medication to assist concentration and sleep, as well as for anti-depressants. R. 437.
In January of 2018, Valdes explained that the car accident had worsened his depression and increased his nightmares. R. 431-32. In April, Valdes reported continued trouble sleeping and that his low back pain was an 8 out of 10 in severity. R. 429. He read a lot of positive thinking material but was irritable and angry and had nightmares three to four days a week. R. 429. In July, Valdes reported being angry and having nightmares three times a week. R. 427. He also felt severely depressed. R. 427. In August, Valdes felt more energetic and hopeful than he had previously but was still anxious and angry. R. 418-19. He was sleeping about five hours per night and had nightmares two or three times per week. R. 419. That November, Valdes reported considerable anxiety and anger, and that his nightmares were persisting. R. 417.
In January of 2019, Valdes had a “medium” level of depression and constant anxiety. R. 416. He was angry and had trouble sleeping more than three or four hours a night. R. 416. He also had nightmares three or four times a week. 416. That August, Valdes reported that he remained symptomatic with a variable mood, difficulty sleeping without medication, and high anxiety. R. 273, 343-44. He also reported having nightmares and intrusive memories multiple times a day. R. 273. Valdes told Dr. Fine that he wanted to try to go to the gym but had not done so. R. 273. In December, Dr. Fine reported that Valdes was not consistently taking medication to aid his concentration but that he was consistently taking medication for depression. R. 325. Valdes was able to sleep between four and five hours a night by taking medication but still had nightmares four or five times a week. R. 325. He also reported fatigue, back pain, and mild paranoia. R. 325.
Dr. Fine stated in a March 2020 treatment note that Valdes had recently had a marked increase in nightmares and that they were very intense and occurring almost every night. R. 380. That July, Valdes was doing a little better and having fewer nightmares but remained depressed and anxious. R. 439-40.
On August 21, 2020, Dr. Fine prepared a medical source statement for Valdes. R. 452-55. Valdes's diagnoses were PTSD and a TBI. R. 452. His symptoms included poor memory, sleep and mood disturbance, emotional lability, delusions or hallucinations, recurrent panic attacks, feelings of guilt or worthlessness, difficulty thinking or concentrating, social withdrawal or isolation, decreased energy, intrusive recollections of trauma, persistent irrational fears, generalized persistent anxiety, and hostility and irritability. R. 452. Valdes's impairments were reasonably consistent with the symptoms and functional limitations identified, and they would cause him to be absent from work more than three times a month. R. 453. Valdes could not sustain performance during an 8-hour workday. R. 453.
His ability to understand, remember, and carry out instructions was also affected. R. 453. Specifically, he had marked loss in his ability to remember locations and work-like procedures, understand and remember short and simple instructions, carry out those instructions, understand and remember detailed instructions, carry out those instructions, sustain an ordinary routine without special supervision, and make simple work-related decisions. R. 454. He had extreme loss in his ability to maintain attention and concentration for extended periods, maintain regular attendance and be punctual, deal with stress or semi-skilled and skilled work, work in coordination with or proximity to others without being unduly distracted, complete a normal workday or work week without interruptions from his symptoms, and perform at a consistent pace without an unreasonable number and duration of rest periods. R. 454.
Similarly, Valdes's ability to respond appropriately to supervision, coworkers, and work pressure was affected by his impairment. R. 454. He had moderate loss in his ability to be aware of normal hazards and take appropriate precautions. R. 454. He had marked loss in his ability to interact appropriately with the public, ask simple questions or request assistance, get along with coworkers and peers without unduly distracting them or exhibiting behavioral extremes, and adhere to basic standards of neatness and cleanliness. R. 454. He had extreme loss in his ability to accept instructions and respond appropriately to criticism from superiors, maintain socially appropriate behavior, respond appropriately to changes in a routine work setting, travel in unfamiliar places, use public transportation, and set realistic goals or make plans independently of others. R. 454.
Finally, Valdes had extreme restriction of his activities of daily living, difficulty in maintaining social functioning, and deficiencies of concentration, persistence, or pace resulting in a failure to complete tasks in a timely manner. R. 455. He had repeated episodes of deterioration or decompensation in work or work-like settings that caused him to withdraw from that situation or to experience exacerbated symptoms. R. 455.
3. Karen Matseoane, MD
Valdes saw Dr. Matseoane for his PTSD from 2017 to 2019. R. 292-94. In November of 2017, Valdes reported sleeping poorly without medication and increased irritability. R. 435-36. He had nightmares every other night. R. 436. He was appropriately dressed, his thought process was logical, and his judgment was not impaired. R. 436. Dr. Matseoane refilled Valdes's prescriptions for medication to aid his concentration and sleep and recommended that he continue taking an anti-depressant for his PTSD and a blood pressure medication for his nightmares. R. 435-36. In March of 2018, he still had trouble sleeping without medication. R. 420. Dr. Matseoane noted that Valdes had missed his last appointment. R. 430.
In April of 2019, Valdes's mood was “up and down,” he was occasionally angry, and he had difficulty concentrating without medication. R. 353-54. He had just finished school and was in the process of searching for a job. R. 354. Dr. Matseoane recommended that Valdes continue taking an anti-depressant, sleep medication, and medication to help with inattention associated with his TBI. R. 355.
4. Vadim Lerman, MD
Valdes saw Dr. Lerman on October 24, 2018, about his neck and back pain. R. 244-46. Dr. Lerman reported that the pain had originated in 2017 when Valdes was hit by the SUV. R. 244. Valdes described the pain as aching, shooting, sore, stiff, and throbbing, with the neck pain an 8 out of 10 and the back pain a 6 out of 10. R. 244. The pain was aggravated by prolonged sitting, standing, walking, bending, lifting, and physical activities, and was alleviated by massage. R. 244. Naproxen also provided some relief. R. 244. Dr. Lerman also noted that Valdes walked with a cane. R. 245.
Valdes displayed severe tenderness throughout the entire cervical spine and moderate to severe muscle tenderness in the same area. R. 245. He had moderate posterior neck pain and severe trapezius pain. R. 245. His flexion was restricted to 50 degrees, extension to 30 degrees with radicular pain, right lateral flexion to 25 degrees with lateral neck pain, and left lateral flexion to 35 degrees. The Spurling's maneuver, used to detect cervical radiculopathy, was positive. R. 245.
Valdes also displayed moderate tenderness throughout the entire lumbar spine and moderate muscle tenderness in the paraspinous muscles, as well as moderate muscle spasms in that same area. R. 245. His flexion was restricted to 40 degrees with severe low back pain and his extension to 10 degrees with moderate low back pain. R. 245.
Dr. Lerman noted that, on October 13, 2017, an MRI of Valdes's cervical and lumbar spine showed a disc bulge between Valdes's L5 and S1 vertebrae with encroachment on the neural foramina. R. 246. The MRI also showed disc bulges between the C4 and C5 vertebrae and between the C7 and T1 vertebrae, both with compression of the anterior thecal sac and partial effacement of the anterior subarachnoid. R. 246. Additionally, there was a mild loss of disc space height between the C6 and C7 vertebrae with diffuse disc herniation with compression of the cervical spinal cord and encroachment of the neural foramina. R. 246.
Dr. Lerman recommended that Valdes avoid any activity that caused the pain to return or worsen, including lifting, bending, or twisting, and planned to repeat the MRI. R. 246. At the appointment, Valdes's body mass index (BMI) was noted to be a 29.5. R. 245.
Valdes saw Dr. Lerman again on September 25, 2019 (after the date Valdes was last insured), about his neck and lower back pain. R. 247-49. Valdes still described the pain as aching, shooting, sore, stiff, and throbbing, with the neck pain a 7 out of 10 and the back pain a 7 or 8 out of 10. R. 247. The pain continued to be aggravated by prolonged sitting, standing, walking, bending, lifting, and physical activities. R. 247. Naproxen provided some relief. R. 247. Dr. Lerman again noted that Valdes walked with a cane. R. 248.
Valdes displayed severe tenderness throughout the entire cervical spine and moderate to severe muscle tenderness in the same area. R. 248. His flexion was restricted to 50 degrees with moderate neck pain and severe trapezius pain, extension to 30 degrees with radicular pain, right lateral flexion to 25 degrees with lateral neck pain, and left lateral flexion to 35 degrees. The Spurling's maneuver, used to detect cervical radiculopathy, was again positive. R. 248.
Valdes also displayed moderate tenderness throughout the entire lumbar spine and now severe muscle tenderness in the paraspinous muscles, as well as moderate muscle spasms in that same area. R. 248. His flexion was restricted to 40 degrees with severe low back pain and his extension to 10 degrees with moderate low back pain. R. 248.
5. Boleslav Kosharskyy, MD
Valdes saw Dr. Kosharskyy for pain management on February 13, 2020. R. 363-67. He reported lower back pain radiating to the buttocks and legs with numbness and tingling in his feet and toes. R. 363. The pain was constant, dull, aching, sharp, shooting, and burning, and Valdes rated it as a 9 out of 10. R. 363. Standing, sitting, bending, lifting, and twisting all exacerbated the back pain, and standing and walking worsened the leg pain. R. 363. Valdes also reported neck pain radiating to his shoulders. R. 363. The neck pain was also constant and a 9 out of 10. R. 363. Valdes described impaired work tolerance and difficulty sleeping, concentrating, and performing the activities of daily living. R. 363.
Dr. Kosharskyy conducted a physical exam and, as to the cervical spine, found tenderness at the upper trapezius muscle, muscle spasms, and restricted flexion, extension, and lateral rotation. R. 364. As to the lumbar spine, there was also tenderness throughout the back and over the sacroiliac joints, as well as muscle spasms and restricted flexion, extension, and lateral rotation. R. 364. Valdes's ability to get on and off the examination table was moderately impaired; so was his mobility on the examination table. R. 364. The straight leg raise test was positive for lower back pain. R. 364.
Dr. Kosharskyy described Valdes as presenting with “aberrant spinal biomechanics.” R. 366. He diagnosed Valdes with cervical disc displacement, cervical muscle spasms, lumbar disc displacement, and lumbar muscle spasms. R. 364-65. He suggested proceeding with steroid injections to help with the pain and advised Valdes to avoid repetitive forceful, strenuous, twisting, or jerky activities that could aggravate his condition, as well as activities like pulling, pushing, bending, lifting, or carrying anything heavy. R. 364-65. He also conducted an ultrasound of the cervical spine and adjacent ligaments and muscular structures. R. 365. The ultrasound showed an enlarged joint capsule near the facet joints. R. 367.
Valdes saw Dr. Kosharskyy again on March 16, 2020. R. 368-73. The examination notes are largely identical to the February 2020 notes. That day, Dr. Kosharskyy performed a steroid injection to help with Valdes's pain. R. 370.
6. Other Imaging
A 2015 MRI showed a mild diffuse disc bulge with facet arthropathy between Valdes's L4 and L5 vertebrae. R. 328. The MRI also showed disc desiccation with intervertebral disc space narrowing, and a diffuse disc bulge producing mild bilateral neuroforaminal narrowing. R. 392.
An August 22, 2016 MRI showed “worsened” findings compared to a prior CT of Valdes's neck performed in 2012, due to the complete opacification of the right maxillary sinus, moderate mucosal disease of the left maxillary sinus, and an area of polypoid mucosal thickening. R. 307.
Compared to the 2015 MRI, a December 2, 2019 MRI of Valdes's spine showed “trace degenerative change” suggested at the L5-S1 vertebrae. R. 357-58. The 2019 MRI also showed degenerative change of the cervical spine, including neural foraminal narrowing and disc space narrowing, as compared to the 2012 CT. R. 360.
C. Non-Treating Medical Evidence
1. Medical Consultant A. Vinluan
On November 26, 2019, Vinluan submitted a Medical Determinable Impairments and Severity Form after reviewing Valdes's medical records. R. 73-75. Vinluan found that there was insufficient evidence in the file to establish a disability before the date Valdes was last insured. R. 73. Valdes had an impairment, specifically a back disorder, but it was “non-severe.” R. 73. Without further explanation, Vinluan found Valdes not disabled. R. 75.
2. Psychological Consultant S. Bhutwala
Also on November 26, 2019, Bhutwala opined that Valdes had not established any mental medically determinable impairment as of the date he was last insured. R. 73-74. According to Bhutwala, there was insufficient evidence to evaluate the claim. R. 74.
3. Medical Consultant R. Abueg
On February 13, 2020, upon a request for reconsideration of Valdes's disability determination, Abueg opined that the available evidence remained insufficient to assess Valdes's overall function and ability to work. R. 80-82. Abueg found that Valdes had two impairments, a back disorder and a trauma-related disorder, but that both were non-severe. R. 81.
4. Psychological Consultant L. Haus
On March 24, 2022, also related to the request for reconsideration, Haus found that, although Valdes had a mental medically determinable impairment, it did not precisely satisfy the relevant diagnostic criteria and that there was insufficient evidence to assess the severity of Valdes's condition and his mental health function. R. 81.
IV. The ALJ's Decision
On September 25, 2020, the ALJ denied Valdes's DIB application. R. 15-33. The ALJ identified the administrative and procedural history, the applicable law, and his findings of fact and conclusions of law. Id.
At step one, he determined that Valdes had not engaged in any substantial gainful activity between January 1, 2017, the alleged onset date, and June 30, 2019, his date last insured. R. 17. At step two, he found that Valdes's obesity, cervical and lumbar disc disease, sleep apnea, depressive disorder, anxiety disorder, PTSD, and TBI qualified as severe impairments. Id.
At step three, he determined that none of those impairments, whether individually or in combination, equaled the severity of any one of the listed disabilities (“Listings”) in the applicable regulations. Id.; see 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. The ALJ found that the requirements of Listing 1.04A, B, or C (disorders of the spine) were not satisfied. There was no evidence of nerve root compression, no medical finding of spinal arachnoiditis, and no evidence of lumbar spinal stenosis resulting in pseudoclaudication and inability to ambulate effectively. R. 18; 20 C.F.R. Part 404, Subpart P, App'x 1, § 1.04(A)-(C). Because Valdes had only a mild limitation in understanding, remembering, or applying information, moderate limitation in interacting with others, moderate limitation in concentrating, persisting, or maintaining pace, and moderate limitation in adapting or managing himself-not one extreme limitation or two marked limitations-and there was no evidence of “paragraph C” criteria (i.e., that Valdes had minimal capacity to adapt to changes in his environment), the ALJ also found that the requirements of Listing 3.01(P) (sleep-related breathing disorders), Listing 11.18 (traumatic brain injury), Listing 12.04 (depressive, bipolar, and related disorders), and Listing 12.15 (trauma- and stressor-related disorders) were not satisfied. R. 18-20; 20 C.F.R. Part 404, Subpart P, App'x 1, §§ 3.01(P), 11.18, 12.04, 12.15. Finally, the ALJ noted that Valdes had “Level I” obesity given his BMI but that his obesity did not cause greater limitations than those that the ALJ assessed as part of his RFC determination. R. 20.
The ALJ next established Valdes's RFC. R. 21-31. The ALJ found that he had the RFC to perform sedentary work, as defined in 20 C.F.R. § 404.1567(a), could never climb ladders, ropes, or scaffolds, could occasionally stoop, kneel, crouch, and crawl, could perform simple tasks, could have occasional interaction with the public, coworkers, and supervisors, and could tolerate few, if any, workplace changes. Id. Valdes's impairments could reasonably be expected to cause his symptoms, but his “statements concerning the intensity, persistence, and limiting effects of [his] symptoms [were] not entirely consistent with the medical evidence and other evidence in the record.” R. 23. In reaching this determination, the ALJ considered Valdes's testimony, treatment records from Dr. Kosharskyy, Dr. Lerman, Dr. Fine, Dr. Matseoane, Dr. Zhang, and another VA physician, the VA's determination that Valdes was disabled, and opinion evidence from Dr. Zhang, Dr. Fine, and the non-examining consultants. R. 21-31.
With respect to the opinion evidence, the ALJ found that Dr. Zhang's October 2019 questionnaire was “persuasive to the extent [it was] consistent with the operative [RFC] assessment” but that some of the limitations assessed by Dr. Zhang related to Valdes's PTSD were not supported by the record and that the opinion was not consistent with Valdes's activities during the period at issue, including graduating from college and looking for work. R. 29. Dr. Zhang's August 2020 medical source statement was unpersuasive because it reflected a change in opinion without any associated decline in Valdes's treatment records. R. 30. Similarly, Dr. Fine's August 2020 medical source statement was unpersuasive because he found very significant limitations not supported in Valdes's psychiatric treatment notes, and because the opinions were inconsistent with Valdes's activities of daily living during the period at issue, including graduating from college and seeking out work. R. 30. The ALJ found all of the non-examining consultants' opinions unpersuasive. Finally, the ALJ also discussed Dr. Lerman's and Dr. Kosharskyy's recommendations that Valdes avoid activities that aggravate his condition. R. 29. Dr. Lerman's recommendation was “persuasive to the degree that it [was] consistent with the operative [RFC] assessment, and somewhat consistent with Valdes's course of treatment and the diagnostic tests of record but not supported by Valdes's activities during the period; Dr. Kosharskyy's recommendation was persuasive regarding Valdes's avoidance of strenuous activities, lifting, carrying, and bending, and consistent with his course of treatment and the diagnostic tests of record. Id.
At step four, given Valdes's RFC, the ALJ determined that he could not perform any past relevant work. R. 31. There were, however, jobs existing in significant numbers in the national economy that Valdes could have performed through the date last insured. R. 32.
The ALJ concluded that Valdes had not been disabled through the applicable period and was not entitled to DIB. R. 32-33.
V. The Appeals Council's Determination
Following the ALJ's unfavorable decision, Valdes requested that the Appeals Council review the decision. See R. 1-6. On December 8, 2020, the Appeals Council denied his request for review, making the ALJ's decision final. R. 1.
DISCUSSION
I. Standard of Review
In reviewing a decision of the Commissioner, a court may “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 cause for a rehearing.” 42 U.S.C. § 405(g). An ALJ's determination may be set aside only if it is based upon legal error or it is not supported by substantial evidence. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998)).
“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.'” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The Commissioner's findings as to any fact supported by substantial evidence are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995); see also Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to support either position, the determination is one to be made by the factfinder.”). Therefore, if sufficient evidence supports the ALJ's final decision, the Court must grant judgment in favor of the Commissioner, even if substantial evidence also supports the plaintiff's position. See Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (“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.” (emphasis in original) (citations and internal quotation marks omitted)). Although deferential to an ALJ's findings, a disability determination must be reversed or remanded if it contains legal error or is not supported by “substantial evidence.” See Rosa, 168 F.3d at 77.
II. Definition of Disability
A claimant is disabled under the Act if he demonstrates an “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 twelve months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A). A “physical or mental impairment” is defined as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). A claimant will be found to be disabled only if his “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 . . . .” Id. § 423(d)(2)(A).
An ALJ must proceed through a five-step process to make a disability determination. See 20 C.F.R. § 404.1520. The steps are followed in order; if it is determined that the claimant is or is not disabled at a step of the evaluation process, the evaluation will not progress to the next step. See id. The Court of Appeals has described the process as follows:
First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a “severe impairment” that significantly limits her 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 that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (quoting Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999)).
A claimant bears the burden of proof as to steps one, two, three, and four; the Commissioner bears the burden as to step five. Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (citation omitted).
III. The ALJ's RFC Determination
Based on all of the relevant medical and other evidence available, including Valdes's own descriptions and observations, the ALJ found that Valdes had the RFC to perform sedentary work with certain limitations described above. R. 21-31; see 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(3). Valdes had the burden of proving he did not have the RFC to perform any substantial gainful activity. See 20 C.F.R. §§ 404.1512(a), 404.1545(a)(3).
Valdes argues that the ALJ's RFC determination is not supported by substantial evidence because the ALJ failed to give due consideration to the opinions of Valdes's treating physicians and failed to address the number of absences Valdes would have from work as a result of his condition, and because the ALJ improperly evaluated the Paragraph “B” criteria of certain Listings.
A. Legal Standard
In assessing Valdes's RFC, the ALJ considered the medical and other evidence available to him. Because Valdes's DIB application was filed after March 27, 2017, revised regulations guided his analysis. See 20 C.F.R. § 404.1520c. When considering medical opinions and prior administrative medical findings under these new regulations, the ALJ is not required to “defer or give any specific evidentiary weight, including controlling weight” to any of those opinions. Id. § 404.1520c(a). Instead, the ALJ evaluates the persuasiveness of an opinion provided by medical sources based on the opinion's “supportability,” its “consistency,” the “relationship” of the medical source and the claimant, the source's “specialization,” and “other factors that tend to support or contradict a medical opinion or prior administrative medical finding.” Id. § 404.1520c(1)-(5).
The new regulations also differ from the previous rules in that the definition of “acceptable medical sources” is expanded. 20 C.F.R. § 404.1502(a).
The most important factors are supportability and consistency; “the more relevant the objective medical evidence and supporting explanations presented by a medical source are to support” their opinion, and the more consistent a medical opinion or prior administrative medical finding is with “the evidence from other medical sources and nonmedical sources” in the claim, the more persuasive the opinion or finding. Id. § 404.1520c(b)(2), (c)(1), (c)(2). The ALJ must address how he considered the supportability and consistency factors but need not discuss the other three. Id. § 404.1520c(b)(2). But where the ALJ finds two or more divergent medical opinions to be equally well-supported and consistent with the record, the ALJ must articulate how he evaluated the three remaining factors. Id. § 404.1520c(b)(3).
“[C]ourts that have been ‘presented with these [new] regulations have concluded that the factors are very similar to the analysis under the old [treating physician] rule.'” Velasquez v. Kijakazi, No. 19-cv-9303 (DF), 2021 WL 4392986, at *20 (S.D.N.Y. Sept. 24, 2021) (citation omitted) (alterations in Velasquez); see also Feliz v. Kijakazi, No. 20-cv-9355 (JLC), 2022 WL 2900797, at *9 (S.D.N.Y. July 22, 2022) (collecting cases holding same). “[F]ailure to properly consider and apply” supportability and consistency “is grounds for remand.” Prieto v. Comm'r of Soc. Sec., No. 20-cv-3941 (RWL), 2021 WL 3475625, at *9 (S.D.N.Y. Aug. 6, 2021). “An ALJ's failure to apply the correct legal standard constitutes reversible error if that failure might have affected the disposition of the case.” Lopez v. Berryhill, 448 F.Supp.3d 328, 341 (S.D.N.Y. 2020) (citing Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)). The court need not remand the case if the ALJ only committed harmless error, that is, where the “application of the correct legal principles to the record could lead only to the same conclusion.” Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (alteration omitted) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).
B. Analysis
1. Consideration of All Relevant Evidence
Valdes argues first that the ALJ did not properly consider the opinions of Dr. Zhang and Dr. Fine, and that the ALJ should have taken into consideration their finding that Valdes would be absent from work more than three times per month. According to Valdes, Dr. Zhang's and Dr. Fine's August 2020 medical source statements were supported by the medical records and uncontradicted by other medical or psychiatric experts. Valdes also argues that the 2018 and 2019 assessments by Dr. Zhang, Dr. Lerman, and Dr. Kosharskyy do not constitute opinion evidence because they were merely “selections” from the medical records, not assessments of Valdes's ability to work.
I find that the ALJ properly based his determination of Valdes's RFC on all the relevant evidence in the record, not just the medical opinion evidence. See 20 C.F.R. §§ 404.1527(d)(2), 404.1545(a)(3). “Where . . . ‘the record contains sufficient evidence from which an ALJ can assess the [claimant's] residual functional capacity,' a medical source statement or formal medical opinion is not necessarily required.” Monroe v. Comm'r of Soc. Sec., 676 Fed.Appx. 5, 8 (2d Cir. 2017) (quoting Tankisi v. Comm'r of Soc. Sec., 521 Fed.Appx. 29, 34 (2d Cir. 2013) (summary order)); cf. Pellam v. Astrue, 508 Fed.Appx. 87, 90 (2d Cir. 2013) (upholding ALJ's RFC determination where he rejected physician's opinion but relied on physician's findings and treatment notes). The ALJ properly cited the overall record in determining Valdes's RFC, including Valdes's testimony, treatment records, and medical imaging. See R. 21-23.
Substantial evidence in the record supports the ALJ's findings. The Court does not dispute that Valdes experienced back and neck pain during the period at issue, that his pain worsened after his car accident, or that Valdes suffers from PTSD and related mental health conditions. But the record shows that medication helped control both Valdes's physical pain and his PTSD symptoms (when he took it consistently), and that his psychiatric symptoms were largely stable. It was also reasonable for the ALJ to conclude that the medical opinions in the record were inconsistent with Valdes's activities during the relevant period, including graduating from college and looking for work. See Rusin v. Berryhill, 726 Fed.Appx. 837, 839 (2d Cir. 2018) (“The ALJ did not err in declining to afford [the treating physician's] opinion controlling weight because his opinion is inconsistent with his treatment notes and diagnostic observations, the other medical opinion evidence, and [the claimant's] reported activities of daily living.”).
Moreover, Dr. Zhang's and Dr. Fine's 2020 medical opinions were inconsistent with other medical records, and in Dr. Zhang's case, his 2020 opinion reflected a change in opinion from 2019 unsupported by any decline in the record. Given that the ALJ properly found their opinions unsupported by substantial evidence in the record, the ALJ was therefore not obligated to adopt their conclusions that Valdes would be absent from work more than three times a month. See Heaman v. Berryhill, 765 Fed.Appx. 498, 500-01 (2d Cir. 2019) (affirming where substantial evidence contradicted treating physicians' assessments of claimant's attendance); cf. Guzman v. Comm'r of Soc. Sec., No. 20-cv-07420 (JMF)(SDA), 2022 WL 2325908, at *10-11 (S.D.N.Y. June 10, 2022), adopted by 2022 WL 2316643 (S.D.N.Y. June 28, 2022) (finding error where ALJ did not discuss opinion evidence about claimant's absences in part because the ALJ did not explain how persuasive he found the evidence).
As for Dr. Zhang, Dr. Lerman, and Dr. Kosharskyy's 2018 and 2019 assessments, I find that the ALJ properly considered them to be medical opinions. A medical opinion is simply “a statement from a medical source about what [the claimant] can still do despite [their] impairment(s) and whether [they] have one or more impairment-related limitations or restrictions” of certain kinds. 20 C.F.R. § 404.1513(a)(2). When these providers concluded that Valdes needed to avoid noise, crowds, and strenuous activities, they provided their medical opinion as to Valdes's impairment-related restrictions.
In sum, the ALJ's weighing of medical opinions was largely appropriate. I note, however, that the ALJ concluded that multiple opinions were persuasive to the extent that they were “consistent with the operative residual functional capacity assessment” but otherwise unsupported by the record. R. 29 (as to Dr. Zhang's 2018 opinion and Dr. Lerman's 2018 opinion). This is improper. This Court, and many others, have previously criticized ALJ decisions that “[d]etermin[e] the RFC first and then measur[e] the claimant's credibility by that yardstick” as “illogical” and “prejudicial to the claimant.” Cruz v. Colvin, No. 12-cv-7346 (PAC)(AJP), 2013 WL 3333040, at *15-16 (S.D.N.Y. July 2, 2013) (citing cases), adopted by 2014 WL 774966 (S.D.N.Y. Feb. 21, 2014). Nevertheless, the ALJ gave sufficient explanation for finding Valdes's claim of disability not credible (including a careful review of the medical record and Valdes's own testimony about his activities of daily living), and I conclude that the ALJ's finding is supported by substantial evidence. A remand is not called for on this ground.
The ALJ also properly considered other evidence, including Valdes's occasional use of a cane, Valdes's testimony about his ability to sit and focus for prolonged periods of time, and Valdes's school attendance. See Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (“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.”) (citations omitted); Rusin, 726 Fed.Appx. at 840-41 (noting that activities of daily living were inconsistent with claimant's subjective complaints).
In short, the ALJ properly evaluated the opinion evidence before him and appropriately assessed Valdes's RFC by weighing all of the evidence in the record.
2. Paragraph B Criteria
Valdes next argues that the ALJ's RFC determination improperly evaluated the Paragraph B criteria of Listings 12.04 (depressive, bipolar, and related disorders) and 12.15 (trauma- and stressor-related disorders). See 20 C.F.R. Part 404, Subpart P, App'x 1, §§ 12.04(B), 12.15(B). Based on the moderate limitations that the ALJ found as to Valdes's ability to concentrate, persist, or maintain pace, Valdes argues, the RFC assessment should have included greater restrictions to accommodate those limitations.
Courts within this District have generally found that ALJs who assess “moderate” mental limitations properly limit claimants to simple, low-contact work. See McMillian v. Comm'r of Soc. Sec., No. 20-cv-7626 (KHP), 2022 WL 457400, at *6 (S.D.N.Y. Feb. 15, 2022) (collecting cases); Morales v. Berryhill, 484 F.Supp.3d 130 (S.D.N.Y. 2020) (holding that moderate limitation in the area of concentration, persistence, or pace is not inconsistent with an RFC to perform simple work). Substantial evidence in the record supported the ALJ's assessment of moderate limitations in Valdes's ability to concentrate, persist, or maintain pace, including Dr. Fine's mental status findings and Valdes's own statements to Dr. Fine about his concentration and focus. E.g., R. 429, 437-38. Substantial evidence also supported the ALJ's conclusion as to Valdes's capability to perform simple work involving few workplace changes and occasional contact with others. See also McIntyre v. Colvin, 758 F.3d 146, 152 (2d Cir. 2014) (ALJ failure to incorporate non-exertional limitations in hypothetical was harmless error where medical evidence demonstrated that claimant could engage in simple, routine tasks or the hypothetical otherwise implicitly accounted for those limitations).
IV. The ALJ's Acceptance of the Vocational Expert's Testimony
Finally, Valdes argues that the ALJ erred in accepting the vocational expert's testimony as to the number of jobs available in the national economy that Valdes could pursue because there was not a “significant” number of positions available for any of the jobs the vocational expert identified. According to Valdes, the ALJ should have found that there were no jobs in the national economy that could accommodate his RFC.
Neither the applicable law nor applicable regulations define what number of jobs is considered “significant,” and “[c]ourts have not established a bright line test as to the threshold number of jobs that is considered ‘significant' for purposes of the Act.” Sanchez v. Berryhill, 336 F.Supp.3d 174, 177 (W.D.N.Y. 2018); see 42 U.S.C. § 423(d)(2); 20 C.F.R. § 404.1566(a). Courts in this Circuit have held that “numbers of jobs in the ballpark of 10,000 to 11,000 nationwide have been held significant.” Hamilton v. Comm'r of Soc. Sec., 105 F.Supp.3d 223, 231 (N.D.N.Y. 2015) (cleaned up). In so doing, courts have considered the total sum of all jobs put forward by the vocational expert, not each job individually. See Sanchez, 336 F.Supp.3d at 177-78 (affirming where the ALJ relied on vocational expert testimony establishing that there were, at a minimum, 9,046 jobs available to the claimant of several types); Waldvogel v. Comm'r of Soc. Sec., No. 16-cv-868 (GTS), 2017 WL 3995590, at *13 (N.D.N.Y. Sept. 11, 2017) (“[T]he ALJ only must show that significant numbers of overall jobs exist in the national economy, not . . . that each job identified must individually constitute significant numbers.”); Rodriguez v. Astrue, No. 11-cv-6977 (PAC)(DF), 2013 WL 3753411, at *14 (S.D.N.Y. July 17, 2013) (affirming where the ALJ relied on vocational expert testimony establishing that there were over 11,000 jobs in “combined” categories available to the claimant).
Here, the vocational expert testified that there was a combined total of over 13,000 positions available to Valdes. R. 63. The ALJ reasonably relied on that testimony to support his conclusion that Valdes was capable of performing jobs existing in significant numbers in the national economy through the date last insured, and that Valdes was therefore not disabled.
CONCLUSION
Because the ALJ's conclusion was based on substantial evidence, I recommend that Valdes'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 days from the 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 days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Vernon S. Broderick at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Broderick. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).