Opinion
21-CV-04676 (MKV)(SN)
08-15-2022
JINELSIE VARGAS, Plaintiff, v. ANDREW SAUL, Defendant.
TO THE HONORABLE MARY KAY VYSKOCIL:
REPORT & RECOMMENDATION
SARAH NETBURN, United States Magistrate Judge.
Jinelsie Vargas seeks review of the decision of the Commissioner of Social Security (the "Commissioner") finding that she was not disabled or entitled to disability insurance benefits ("DIB") or supplemental security income ("SSI") under the Social Security Act (the "Act"). The parties have cross-moved for judgment on the pleadings. I recommend that Vargas's motion be denied, and the Commissioner's motion granted.
BACKGROUND
I. Administrative History
Vargas applied for DIB and SSI on May 20, 2015, with a date last insured of December 31, 2019. See Administrative Record ("R.") 10, 216-31, 244. She alleged that she was disabled beginning January 1, 2015, due to bipolar disorder, schizophrenia, hallucinations, insomnia, and inability to be around too many people (as stated in her initial application), as well as spinal impairment, right shoulder impairment, bilateral knee impairment, right ankle impairment, bilateral foot impairment, tempomandibular joint dysfunction, dental trauma and fractures, migraine headaches, post-traumatic stress disorder, major depression, generalized anxiety disorder, attention deficit disorder, and traumatic brain injury (as later summarized by her attorneys). R. 10, 57, 344. Her application was denied, and she requested a hearing before an administrative law judge ("ALJ") to review her case. R. 10. Vargas appeared for a hearing before ALJ Alexander G. Levine on January 4, 2019, and ALJ Levine issued a decision denying her claims on April 2, 2019. R. 10-28. On March 30, 2020, the Appeals Council denied Vargas's request for review, making the ALJ's decision final. R. 1-6; see 20 C.F.R. §§ 404.981, 416.1481; 42 U.S.C. § 405(g).
II. Vargas's Civil Case
Vargas filed her complaint on May 25, 2021, seeking review of the ALJ's decision. See ECF No. 1. She requested that the Court set aside the decision and grant her DIB and SSI or, alternatively, remand the case for further proceedings. Id. at 2-3. The Commissioner answered by filing the administrative record, and the parties cross-moved for judgment on the pleadings. See ECF Nos. 11, 19,23.
Vargas argues that ALJ Levin's determination of disability was not supported by substantial evidence for two reasons. First, she argues that the ALJ improperly adjudicated her application based on an alleged onset date that her attorney provided at the hearing rather than the alleged onset date provided in her application. Second, she argues that the ALJ's RFC determination did not properly consider the opinion of one of Vargas's treating physicians and improperly substituted the ALJ's lay assessment of the medical evidence. See ECF No. 20. The Commissioner contends that the ALJ properly evaluated the entire relevant period and that the ALJ's RFC assessment properly weighed Vargas's treating physicians' opinions and properly considered all of the relevant evidence in the record. See ECF No. 24. The Honorable Mary Kay Vyskocil referred this case to me for a report and recommendation. ECF No. 6.
III. Factual Background
A. Non-Medical Evidence
Vargas was born in 1985 and was between 29 and 33 years old during the period at issue. R. 15, 40, 57. She obtained a GED in 2013. R. 257. At the time of the hearing, she was unmarried and had a child who was under one year old, whom she cared for on a daily basis. R. 40, 42. She lived in a homeless shelter with her child and, at the time of the hearing, received no public assistance (though when she initially applied for SSI, she stated that she received food stamps). R. 40-41, 25.
At the hearing, the ALJ asked whether there was any basis for the alleged onset date of disability in her application, January 15, 2015. Vargas's attorney responded, that there "really [wasn't] anything" until October 26 or 27, 2016, when Vargas was in a car accident. R. 40. She did not bring a lawsuit after the accident because the car that she was a passenger in was at fault, but the driver's insurance paid for the surgeries she required afterwards. R. 41. Until she was involved in the car accident, Vargas prepared and cooked food for eight hours a day, five days a week at Sweetgreen, a restaurant. R. 41. Before that, she worked as a housekeeper. R. 42.
Vargas saw her psychiatrist, Dr. Edwin Robbins, monthly, and her psychologist, Dr. Edward Robins, weekly. R. 42. She had trouble sleeping and got three hours of sleep "on a good night." R. 42. She had problems with her memory and sometimes forgot "a lot of things." R. 42. The medications Vargas took caused her to suffer from constipation, drowsiness, and dizziness. R. 42-43. She had no thoughts about hurting herself or other people and did not experience hallucinations. R. 43. She did not have any breathing problems and did not smoke. R. 46.
Vargas had trouble walking and could walk only two blocks before she needed to stop and rest; she was supposed to use a cane but someone stole it from her at the shelter. R. 43 She also had trouble with her lumbar spine while sitting and could sit for about 15 to 20 minutes before needing to stand up or lie down, and she could stand in one place for about five minutes. R. 43-44. She could climb one flight of stairs before needing to stop and rest. R. 44-45. She could bend and dress and bathe herself. R. 45.
Vargas had two surgeries performed on her feet that she claimed were unsuccessful. R. 44. As of the date of the hearing, she was in the process of scheduling another surgery on her right foot. R. 44. She could not lift much weight because of her right shoulder but could lift a gallon of milk by putting the bottle on her shoulder. R. 44. She was able to reach above her head with her left hand; she could use her right hand to sign documents and reach in front of her a little bit. R. 44. She could use her hands to feed herself. R. 44.
Vargas did not have a driver's license and did not socialize or watch TV at the shelter where she lived. R. 45. She did not belong to any clubs or activities, did not have any hobbies, and had not been on vacation in the two years preceding the hearing. R. 45-46. She did not do laundry at the shelter and said at the hearing that she had not cleaned her clothes. R. 46.
On May 21, 2015, an SSA field office employee completed a Disability Report based on a face-to-face interview with Vargas. R. 244-46. The report notes that "from the beginning" of the interview, Vargas displayed "signs suggestive of mental conditions": she appeared "zoned out" when the interviewer called her into the interviewing area, did not make immediate eye contact, appeared to have a slight tremor, and appeared very nervous. R. 245. Throughout the interview, she intermittently rocked back and forth and bit and picked at her fingers. R. 245. Toward the end of the interview, she asked for bandages because her thumb had begun to bleed as a result of her biting and picking. R. 245. Vargas had apparent scars on her arms and fingers, and she had what appeared to be blade slash marks on her left arm. R. 245-46. She said "shut up" to herself and pressed her fingers against her ears as if to block out noise or speech from some external source, and she bit her lips a lot and smiled to herself once in a while. R. 245-46. She was properly dressed for the weather and well-groomed. R. 246.
On June 4, 2015, Vargas's mother, Nadia Quijano, completed a function report for Vargas. R. 263-88. She explained that Vargas was a "nervous wreck" who harmed herself and heard voices, and that she had "been this way since 1996." R. 271, 281. The voices Vargas heard affected her sleep, and her general condition affected her ability to feed herself and use the toilet. R. 270-71. She needed special help or reminders to take care of her personal needs and grooming and to take her medicine, and she spent her days talking to herself. R. 270, 282. Vargas or her mother prepared her meals. R. 269. Sometimes she could not go out alone and she sometimes or rarely went outside. R. 269. Vargas had trouble getting along with family, friends, neighbors, authority figures, and others, did not spend time with other people, and had previously lost a job because of her problems getting along with other people. R. 266-67. She was unable to pay bills, handle a savings account, or use a checkbook or money orders. R. 284. She had trouble paying attention because she heard voices and could not finish what she started. R. 266. She could not follow written or spoken instructions at all and did not handle stress or changes in routine well. R. 286-87. At one of her previous jobs, Vargas could not lift or carry things because her arms were weak. R. 274.
Vocational expert Rachel Duchon testified via interrogatories about Vargas's vocational status. R. 333-38. Duchon described Vargas's previous work experience as cashier (unskilled and with a light physical demand level) and housekeeper (same). R. 335. The ALJ then asked Duchon to assume a hypothetical person of Vargas's age, education, work experience, and ability to perform sedentary work. R. 336. The hypothetical person could occasionally lift or carry up to 20 pounds; push or pull, climb ramps or stairs, or kneel; be exposed to extreme cold or heat, wetness or humidity, or other environmental irritants. R. 336. They could frequently balance, stoop, operate foot controls, reach, finger, feel, and handle, and they could never climb ladders, ropes, or scaffolds, crouch, or crawl. R. 336. The hypothetical person had moderation noise limitation and their work was limited to simple, routine tasks with only occasional decisionmaking required, occasional changes in the work setting, and occasional interaction with the public, coworkers, and supervision. R. 336.
Duchon testified that such a person could not perform any of Vargas's past jobs as actually performed by her or as generally performed in the national economy. R. 336. Such a person could, however, work as a compact assembler (251,670 positions within the national economy), stuffer (4,252 positions), or document preparer (46,541 positions). R. 337.
B. Treating Medical Evidence
1. Lincoln Medical and Mental Health Center
On June 26, 2013, Vargas was punched in the face and hit on the back of the head with a skateboard by her ex-boyfriend. R. 390. After the assault, she vomited and became dizzy with a mild, generalized headache, but by the time she received healthcare, she denied dizziness, nausea, vomiting, or any vision changes. R. 390, 397. The left side of her face was swollen. R. 390. She presented as alert, was oriented to person, place, and time, and was calm and cooperative. R. 395-96, 404. She was well-groomed and neatly dressed and denied having any hallucinations or illusions. R. 405-06.
On October 9, 2013, Vargas was assaulted and presented with left facial pain and a laceration to the scalp. R. 399. A CT scan of her facial bones and brain showed no acute findings. R. 399.
On February 14, 2015, Vargas experienced right shoulder pain. R. 409. She described chronic instability of the right shoulder since 2004 and recurrent dislocation of that shoulder after waking up from sleep. R. 382. An x-ray of the right shoulder showed anterior dislocation with soft tissue swelling. R. 375, 461.
2. Arlene Broska, PhD
On June 30, 2015, Dr. Broska performed a psychiatric evaluation of Vargas based on an interview and review of her history. R. 418-24. In 2010, Vargas went to the hospital for auditory hallucinations. R. 418. She reported a suicide attempt in 2011, after which she was hospitalized and diagnosed with bipolar disorder or schizophrenia. R. 418-19. As of the date of the interview, she had never been in any outpatient mental health treatment. R. 418. She sometimes took her friend's Ambien to help her sleep because she had difficulty falling asleep. R. 418. She was anxious, did not like being around too many people, and when she was outside, she was afraid that someone would attack her. R. 419. Vargas described her moods as changing all the time, and that sometimes when she was not able to sleep, she thought she heard someone calling her name or saw something in the corner of her peripheral vision that was not there. R. 419. She smoked ten marijuana cigarettes per day. R. 419.
Dr. Broska described Vargas's demeanor and responsiveness as cooperative and with adequate manner of relating, social skills, and overall presentation. R. 420. She was casually dressed and well-groomed, and had normal posture, motor behavior, and eye contact. R. 420. Her thinking was coherent and goal directed, there was no evidence of hallucinations, delusions, or paranoia in the evaluation setting, and her attention and concentration was intact. R. 420. Vargas's recent and remote memory skills were within normal limits and she had average cognitive function, but her judgment was poor around substance abuse. R. 420-21. She dressed, bathed, and groomed herself every day, and traveled independently. R. 421. There was no evidence of psychiatric limitation in following and understanding simple directions and instructions, performing simple or complex tasks independently, maintaining attention and concentration, learning new tasks, or maintaining a regular schedule. R. 421. Dr. Broska did find evidence for moderate limitation in making appropriate decisions based on Vargas's substance abuse, and evidence for mild limitation relating adequately with others and appropriately dealing with stress. R. 421. Vargas's psychiatric problems were not significant enough to interfere with her ability to function on a daily basis-but substance abuse problems could significantly interfere with that ability. R. 421. Finally, Dr. Broska warned that Vargas would need assistance to manage her funds, as she might use the money to obtain drugs. R. 421. 3. Jacobi Medical Center On October 27, 2016, Vargas was treated at the emergency room for acute pain due to a car crash the previous day. R. 428-53. The doctors performed CT scans of her head and spine and x-rays of her chest, elbow, and shoulder. R. 429. The imaging was all negative for acute injuries. R. 429, 441-48. Vargas was alert and oriented. R. 435. She reported that she lost consciousness for a few seconds during the car crash but denied any nausea. R. 435. Vargas experienced abrupt and constant pain in her head, neck, and right shoulder and arm that she rated as a 7 out of 10. R. 432, 437. The physical exam revealed cervical, thoracic, lumbosacral, and paraspinal tenderness, as well as paraspinal spasms. R. 438. On December 18, 2016, Vargas again presented with right shoulder and lower back pain after the car crash. R. 426.
4. Stella Mansukhani, MD
On November 10, 2016, Vargas saw Dr. Mansukhani at New York Heights Medical PC for an initial evaluation. R. 480-84. Her chief complaints were pain in the face, neck, right shoulder, right elbow, and left knee, headaches, and blurry vision in the right eye. R. 480. The neck pain did not radiate but Vargas felt a burning sensation in her right shoulder and numbness in the right hand. R. 480. She felt like her shoulder might come out of place, especially when she raised her arm. R. 480. Her right elbow and left knee sometimes locked up. R. 480. Her headaches were constant. R. 480. Because of her injuries, she had difficulty sitting for a long time because it hurt her knee, and she had pain when raising her arm. R. 481.
Examination revealed tenderness to palpation in the right cervical paraspinal and trapezius muscles, reduced range of motion on flexion, extension, and rotation to the left. R. 482. There was tenderness to palpation in the anterior and posterior joint lines of Vargas's right shoulder and reduced range of motion on flexion and abduction. R. 482. She refused any "provocative" testing because of the shoulder pain. R. 482. There was also tenderness to palpation in the triceps for Vargas's right elbow, as well as pain on flexion, pronation, and supination. R. 482. There was tenderness to palpation in the medial and lateral joint lines of Vargas's left knee, as well as some effusion. R. 482. Her active range of motion on flexion was reduced, as was extension. R. 482. She could not tolerate the McMurray test (used to detect internal tears in the knee joint). R. 482. Other stress tests of the knee were negative. R. 482. Vargas also had reduced muscle strength in her right upper extremity due to pain, and decreased sensation to light touch and pinprick in the right C6-C8 dermatome. R. 482.
Dr. Mansukhani assessed that Vargas had a sprain or strain of her cervical spine, right shoulder, right elbow, and left knee, and posttraumatic headaches, blurry vision, facial pain, and nervousness and anxiety. R. 482. She recommended that Vargas begin physical therapy to receive moist heat, cold pack, electrical stimulation, massage therapy, and ultrasound therapy, followed by gentle range of motion and stretching exercises. R. 483. Vargas was also advised to see a neurologist, psychologist, ophthalmologist, maxillofacial specialist, and to undergo an MRI of her right shoulder and left knee and x-ray of the right elbow. R. 483. Dr. Mansukhani confirmed that, based on Vargas's description of her history, her injuries were causally linked to the car crash. R. 483. Finally, she advised Vargas not to do any activities that would further exacerbate her injuries. R. 484.
On December 9, 2016, Dr. Mansukhani again evaluated Vargas, who had gone to the emergency room the night before because of back pain. R. 486-90, 629-36. Vargas reported that her neck pain was radiating down to her right arm and that her back pain had recently increased and was exacerbated by prolonged sitting and standing. R. 486. She continued to have right elbow pain, left knee pain, headaches and blurry vision, nervousness and anxiety, and facial pain. R. 486. She also reported new pain in her right knee. R. 486. Dr. Mansukhani noted that a November 28, 2016 MRI of Vargas's right shoulder had shown anterior dislocation, a Hill-Sachs fracture, a labrum tear, an interstitial tear of the posterior fibers of the supraspinatus tendon, and infraspinatus tendinosis. R. 487, 526-27. That same date, an MRI of her left knee showed edema in the superior lateral aspect of the Hoffa's pad, which could be seen with a patellar tracking abnormality such as lateral patellar friction syndrome. R. 487, 530-31.
Examination revealed tenderness to palpation in the cervical spine and bilateral paraspinal and trapezius muscles, reduced range of motion on flexion, extension, and rotation to the left and right. R. 487. There was tenderness to palpation in Vargas's lumbar spine and paraspinal muscles, as well as reduced range of motion on flexion, extension, and bending. R. 487. There was tenderness to palpation in the anterior and posterior joint lines of Vargas's right shoulder. R. 488. The drop-arm test was positive, and Vargas was unable to tolerate any further testing due to pain. R. 488. There was also tenderness to palpation in the posterior elbow joint, reduced range of motion on extension and flexion, and pain on flexion, pronation, and supination. R. 488. There was tenderness to palpation in the medial and lateral joint lines of both of Vargas's knees. R. 488. Her active range of motion on flexion was reduced for both knees, as was extension for her right knee. R. 488. The McMurray test was positive for her right knee. R. 488. Vargas also had reduced muscle strength in her right shoulder, right elbow, and bilateral knees, and decreased sensation to light touch and pinprick in the right C6-C7 dermatome. R. 488.
The drop-arm test is used to assess rotator cuff tears. See Anne D. Walling, Three Clinical Tests Reliably Diagnose Rotator Cuff Tears. 64 A. Fam. Physician 1262 (2001).
In addition to Dr. Mansukhani's previous assessments, she also assessed Vargas with a right shoulder Hill-Sachs fracture, labrum tear, Bankart injury, tear of the posterior fibers of the supraspinatus tendon, and infraspinatus tendinosis, and left knee edema in the superior lateral aspect of the Hoffa's fat pad. R. 488.
Dr. Mansukhani recommended that Vargas undergo an MRI of the cervical and lumbar spine to rule out disc herniation or other spinal pathology, and electrodiagnostic studies of her upper extremities to evaluate and differentiate between cervical radiculopathy, brachial plexopathy, and entrapment neuropathy. R. 489. She was also advised to see an orthopedic specialist about her right shoulder, right elbow, and knee pain. R. 489.
On January 16 or 20, 2017, electrodiagnostic testing showed right C6 radiculopathy. R. 485, 518-21. Based on the study, Dr. Mansukhani recommended adding gentle cervical traction to Vargas's physical therapy program to unload the pressure on the compressed nerve root exiting the spinal canal. R. 485. Dr. Mansukhani also referred Vargas to a pain management specialist for further evaluation and management of her cervical radiculopathy. R. 485.
Dr. Mansukhani saw Vargas for a follow-up evaluation on February 6, 2017. R. 497-501. Vargas continued to complain of neck pain, low back pain (exacerbated when bending), right shoulder pain, right elbow pain, pain in both knees, facial pain, headaches, and blurry vision. R. 497. She also complained of right ankle pain. R. 497. Examination results were similar to those in December 2016, except that Vargas had decreased sensation to light touch and pinprick in her right index finger and thumb and in her right L4 dermatome. R. 499-500. Dr. Mansukhani recommended that Vargas undergo an x-ray of the right ankle and not do any activities that would further exacerbate her injuries. R. 501.
On March 20, 2017, Dr. Mansukhani again evaluated Vargas. R. 502-05. Vargas continued to complain of radiating neck pain, low back pain, pain in her right shoulder and elbow, knee pain, ankle pain, headache, and nervousness and anxiety. R. 502. Dr. Mansukhani noted that a March 18, 2017 MRI of the right knee showed patellar and quadriceps tendinosis, edema in the Hoffa's fat pad, and moderate joint effusion. R. 503, 528-29. Examination results were again similar (spinal tenderness and reduced range of motion, shoulder tenderness and pain, elbow tenderness and reduced range of motion, knee tenderness), and Vargas continued to experience decreased sensation to light touch and pinprick in the right C6-C7 dermatome and right L4-S1 dermatome. R. 503-04. Dr. Mansukhani assessed that Vargas's left knee sprain or strain was clinically improved but that she had right knee patellar and quadriceps tendinosis and cervicalgia with right C6 radiculopathy. R. 504. Vargas was advised to undergo an MRI of her cervical and lumbar spine and an x-ray of her right ankle as previously ordered. R. 505.
Dr. Mansukhani next saw Vargas on June 5, 2017. R. 506-09. Vargas was six weeks pregnant and continued to complain of neck pain, radiating low back pain, right shoulder and right elbow pain, knee and ankle pain, headaches, and nervousness and anxiety. R. 506. Dr. Mansukhani noted that an April 2017 MRI of Vargas's lumbar spine showed left paracentral herniation at ¶ 4-L5 impinging on the thecal sac with reduced disc signal intensity, and disc bulge at ¶ 5-S1 with anterior thecal sac impingement and reduction in disc signal density. R. 507, 522. That same date, an MRI of Vargas's cervical spine showed central herniation at ¶ 3-C4 with thecal sac impingement, central disc herniation at ¶ 4-C5, also with thecal sac impingement and with left foraminal herniation with left foraminal stenosis, and broad-based disc herniation at ¶ 5-C6 with thecal sac impingement. R. 524. Examination results were again similar, though the Hawkin's test (used to assess shoulder impingement) was positive for Vargas's right shoulder and the McMurray test was positive for both knees. R. 507-08. Dr. Mansukhani assessed that Vargas had lumbar spine disc bulge and disc herniation, and left knee lateral patellar friction syndrome with exacerbation of pain. R. 508.
On October 19, 2017, Vargas continued to experience neck pain, non-radiating back pain exacerbated by bending down and prolonged sitting, right shoulder and elbow pain, left knee pain, right ankle pain, headaches, and nervousness and anxiety. R. 510. She had gone to the emergency room in June because of her low back pain. R. 510. An orthopedic specialist recommended surgery to treat her right shoulder, which was to be performed after Vargas gave birth. R. 511. Examination results were again similar except that Vargas's right knee was improved. R. 511.
Vargas delivered her baby on February 2, 2018, and was seen by Dr. Mansukhani again on March 8, 2018. R. 514. She continued to experience neck pain, radiating low back pain, right shoulder and elbow pain, left knee pain, and right ankle pain. R. 514. Examination results were similar to previous notes. R. 515. Dr. Mansukhani recommended that Vargas undergo an MRI of her right ankle and right elbow to rule out any ligament tears. R. 516. On March 27, 2018, an MRI of the right elbow showed thickening and edema of the ulnar nerve compatible with ulnar neuropathy. R. 701. That same date, an MRI of her right ankle showed thickening of the anterior talofibular ligament consistent with a partial-thickness tear, extensive peroneal tenosynovitis, moderate tibiotalar and posterior subtalar joint effusion, and Achilles tendinosis. R. 702.
5. Nicky Bhatia, MD
On November 28, 2016, Dr. Bhatia evaluated Vargas based on Dr. Mansukhani's neurology referral. R. 532. Vargas described having headaches after the car crash, while awake and also while waking up and falling asleep. R. 532. She found it difficult to think and function, and loud sounds and light bothered her. R. 532. Dr. Bhatia found her alert, fluent of speech, and with an intact autobiographical memory. R. 533. The neurological examination was benign, but Dr. Bhatia recommended an MRI of her brain to assess her subcortical and posterior fossa elements in more detail. R. 535.
6. C. Edward Robins, PhD
On December 22, 2016, Dr. Robins conducted a clinical neuropsychological evaluation of Vargas. R. 548. Vargas reported headaches, forgetfulness, and feelings of sickness and irritability. R. 549. After administering a number of tests, Dr. Robins found that Vargas's overall intellectual functioning and ability to concentrate was "in the borderline range," indicating the possibility of an intrusion of depressive and/or anxiety processes. R. 550. She also had deficiencies in her short-term numeric memory vs. short-term alphabetic memory and relative bilateral intercommunication, potentially indicating organic etiology or anxiety or depressive processes disturbing her concentration and attention. R. 550. Dr. Robins found that psychosis was "ruled out," and Vargas admitted to severe levels of clinical depression. R. 551. Dr. Robins concluded that Vargas's attention, concentration, and memory functioning were all severely affected by morbid organic, anxious, and depressive processes. R. 552. He assessed her as having post-traumatic stress disorder, major depression, and post-concussion cerebri. R. 552. Dr. Robins recommended supportive individual and group psychotherapy and, if indicated, medication to treat Vargas's anxiety and depression. R. 553.
Vargas saw Dr. Robins on a weekly or bi-weekly basis in 2017 and early 2018. In general, she reported significant weight gain, insomnia, fatigue, loss of energy, diminished interest and pleasure in activities, excessive anxiety, headaches, sleep disturbance, and a significant decline from her previous level of function. R. 536, 538. She was sometimes distressed, concerned about her physical limitations and pain, and had a difficult time coping with her pain and the numbness in her hands. R. 538, 540. She worried about caring for her child afterbirth due to her condition. R. 538, 542.
In general, Dr. Robins reported that Vargas's hygiene was good, and her appearance was good or fair. R. 536, 538, 540, 542, 545. He found her well-oriented and coherent, with appropriate affect, logical thought processes, and good judgment and insight. Id. She demonstrated no delusions or hallucinations. Id. Vargas's mood was generally anxious and depressed, and her social/occupational/vocational functioning was fair (except on April 3, 2017, when it was poor). Id. Dr. Robins noted on one occasion that she picked at her skin and had a phobic avoidance of people and the outdoors. R. 655. On April 3, 2017, and also in January of 2017, her prognosis was marked as "poor." R. 545-47.
7. University Orthopedics of New York
On October 3, 2017, Dr. Touliopoulos conducted an initial evaluation. R. 716. Physical examination showed positive Hawkin's tests and impingement signs as to Vargas's shoulder. R. 716. Her rotator cuff strength was diminished, there was spinal and hip tenderness, and she was positive for anterior drawer and talar tilt tests. R. 716.
On April 17, 2018, Vargas had a follow-up evaluation. R. 715. An MRI of her right ankle showed anterolateral ligament injury to the right ankle, and Vargas's pain was persistent and debilitating. R. 715. She underwent therapy without much response and had residual pain, discomfort, and dysfunction. R. 715. The evaluating doctor suggested that Vargas could be a candidate for surgical intervention. R. 715.
On May 1, 2018, Dr. Touliopoulos conducted an orthopedic evaluation of Vargas related to her right ankle pain and difficulty walking up and down stairs or for prolonged periods of time. R. 714. She reported that all of her activities of daily living had been adversely affected due to the injury. R. 714. Dr. Touliopoulos assessed a right ankle lateral ligament deficiency or chondral injury. R. 714. He recommended a right ankle arthroscopy open lateral ligament repair, with which Vargas agreed to proceed. R. 714.
On June 14, 2018, another provider at University Orthopedics examined Vargas's feet. R. 903. She was well-groomed and had normal mood and affect. R. 903. The exam was largely normal but there was mild edema and erythema to the first and fifth metatarsophalangeal joint of the right foot and the fourth distal interphalangeal joint. R. 903. There was also erythema and edema to the fifth metatarsophalangeal joint of the left foot and the fourth distal interphalangeal joint. R. 903. The examiner also noted a tailor's bunion on both feet, as well as a mallet toe deformity on the fourth digit with pain on palpation and a right hallux valgus deformity. R. 903. Vargas requested surgical treatment rather than conservative treatment. R. 904.
On August 9, 2018, Dr. Touliopoulos completed a form regarding Vargas's ability to work. R 862. He stated that she was totally disabled and could not return to work until further notice. R. 862. He also noted that, on August 2, 2018, Vargas underwent a bunionectomy for her right foot, repair of mallet toe deformity of the fourth toe, and resection of a tailor's bunion. R. 862-65. That same day, another examiner at University Orthopedics examined Vargas. R. 916. There was edema and mild ecchymosis noted to the first and fifth metatarsophalangeal joint of the right foot and the fourth distal interphalangeal joint at the surgical sites where Vargas had undergone the August 2, 2018 procedures. R. 916.
On October 1, 2018, Dr. Touliopoulos completed another form regarding Vargas's ability to work. R. 861. He again stated that she was totally disabled and could not return to work until further notice and noted that Vargas was scheduled to undergo a bunionectomy for her left foot and a fourth digit arthroplasty, which took place on October 11, 2018. R. 861, 866-68. She continued to return for post-surgical evaluation over the next few weeks. R. 958-59. She also had an appointment scheduled to discuss surgery for her shoulder and ankle. R. 861.
On October 16, 2018, Dr. Touliopoulos completed a third form regarding Vargas's ability to work. R. 860. He again stated that she was totally disabled and could not return to work until further notice. R. 860.
8. Stefan Trnovski, MD
On March 22, 2018, Dr. Trnovski evaluated Vargas for pain management. R. 721. Vargas reported that her neck pain was constant and sharp, with burning, tingling, and numbness in her shoulders, arms, and both hands. R. 721. Moving her head or neck aggravated the pain, and pain medication and chiropractic treatment provided minimal pain relief. R. 721. Vargas's lower back pain was constant and sharp, also with burning, tingling, and numbness in her right buttock and right thigh. R. 721. Bending forward, prolonged standing, sitting, and walking aggravated her pain. R. 721. Vargas complained of persistent anxiety due to post-traumatic stress caused by the car crash. R. 721.
According to Dr. Trnovski's physical examination, Vargas had fluent speech, appropriate affect, and good judgment. R. 722. She walked with a non-antalgic gait. R. 722. On palpation, there was tenderness at the C5 and C7 levels of her cervical spine, as well as of her trapezius muscle and suprascapular and infrascapular muscles. R. 722. Her cervical range of motion was reduced and she had decreased sensation to light touch and pinprick at the right C5 to C8 dermatome. R. 722. There was similar tenderness of Vargas's lumbar spine, and her lumbar range of motion was reduced. R. 722. Dr. Trnovski diagnosed her with post-traumatic cervicalgia with bilateral radiculopathic pain, post-traumatic lumbalgia with right-sided radiculopathic pain, disc herniation at the C3-C4, C4-C5, C5-C6, and L4-L5 vertebrae, disc bulging at ¶ 5-S1, posttraumatic cervical and lumbar facet joint arthropathy, and myofascial pain. R. 722. Dr. Trnovski recommended steroid injections at the C6-C7 level, selective nerve root block injections at ¶ 4 and L5, and pain medication. R. 723.
Dr. Trnovski saw Vargas again on July 19, 2018. R. 854. She continued to experience neck and lower back pain which she described as debilitating and interfering with her daily activities. R. 854. She rated her neck pain as an 8 out of 10 and her back pain as a 10 out of 10. R. 854. Neither pain medication nor chiropractic treatment offered relief. R. 854. The physical examination findings were similar to those from before, but muscle strength testing was normal in Vargas's upper extremities. R. 854. Dr. Trnovski assessed Vargas as continuing to suffer from post-traumatic cervicalgia with bilateral radiculopathic pain, post-traumatic lumbalgia with right-sided radiculopathic pain, disc herniation at the C3-C4, C4-C5, C5-C6, and L4-L5 vertebrae, disc bulging at ¶ 5-S1, post-traumatic cervical and lumbar facet joint arthropathy, and myofascial pain. R. 854. He recommended steroid injections at the C6-C7 level, selective nerve root block injections at ¶ 4 and L5, and continuing chiropractic procedures and physical therapy. R. 855.
9. Edwin Robbins, MD
On July 11, 2018, Dr. Robbins, a psychiatrist, completed a medical assessment of Vargas's ability to do work-related activities. R. 844. According to Dr. Robbins, Vargas's ability to follow work rules, relate to coworkers, deal with the public, use judgment, interact with supervisors, deal with work stresses, function independently, and maintain attention or concentration was poor. R. 844. He explained that she had memory issues, a bad temper, a lack of patience, and an inability to talk to more than one person at a time. R. 844. Her symptoms were consistent with head trauma. R. 844. She had poor or no ability to understand, remember, and carry out complex, detailed, or simple job instructions. R. 845. She had good ability to maintain her personal appearance but poor or no ability to behave in an emotionally stable manner, relate predictably in social situations, or demonstrate reliability. R. 845. Vargas could not manage benefits or funds in her own best interest. R. 845.
That same day, he also wrote a letter about Vargas's ability to work. R. 843. He stated that she could no longer work as a chef because of the constant pain on her right side and extreme weakness and limited motility of her right upper extremity. R. 843. Since her accident, her thinking had slowed and her memory was impaired. R. 843. Vargas did not have the confidence that she could work as a childcare helper and assist children with homework, and she did not have the physical strength to manage a child more than a few months old. R. 843.
On July 18, 2018, Dr. Robbins wrote another letter regarding Vargas's health status. R. 842. She experienced headaches, facial pain, problems with concentration, stuttering, and anxiety, inability to retain others' speech, increased irritability, problems controlling her temper, and memory loss. R. 842. She was isolated, avoided people, and stayed indoors as much as possible. R. 842. According to a "brief neurological exam, Vargas was almost deaf in her right ear and had reduced sensitivity to pain, heat, cold, and touch in her head and right extremities. R. 842. Her grip was weaker on her right side and she could not raise her arm above her head. R. 842. The constant pain contributed to her insomnia. R. 842. Vargas's mental status was depressed; she cried every night after her baby went to sleep. R. 842. She had "excellent" social skills but was withdrawn because of her depression and had difficulties in relating to other people because of her memory. R. 842.
According to Dr. Robbins, she had "classical symptoms" of a traumatic brain injury with a guarded prognosis and multiple problems with both extremities. R. 842. It was impossible to make any predictive statements about her capacity to return to work as a chef, but Dr. Robbins thought the prospects were not good. R. 842. He diagnosed Vargas with a traumatic brain injury and depressive reaction. R. 842. Recommended treatment was an amphetamine to improve her concentration and reduce the severity of memory loss and an anti-depressant. R. 842.
On September 12, 2018, Dr. Robbins wrote a letter stating that Vargas required psychiatric and psychological treatment because of her traumatic brain injury, anxiety, and physical incapacity stemming from the car accident. R. 897. Her brain injury was a "major deterrent" because it led to anxiety with groups of people. R. 897. Vargas had injuries to the right side of her body, was physically weak, and walked with a limp exacerbated by the loss of her cane. R. 897. She was too weak to hold her child in her arms for prolonged periods and had pain on her right side when she placed the child in his crib, carriage, or bath. R. 897.
On November 5, 2018, Dr. Robbins prescribed Vargas a month's worth of amphetamine. R. 872. That same day, he wrote a letter explaining that she had been a patient since July 18, 2018, for medication and psychotherapy. R. 896. With the medication, she was calmer, functioned well, was an "excellent mother," followed Dr. Robbins's instructions, was better organized, and was much less anxious. R. 896. She continued to experience panic attacks but her thinking was more organized. R. 896. She was still picking at her skin. R. 896. 10. Claire Rufin-Lew, MD
On June 12, 2018, Dr. Rufin-Lew evaluated Vargas. R. 899. She continued to experience radiating neck pain and low back pain, both an 8 out of 10. R. 899. She also continued to experience right shoulder pain, right elbow pain, left knee pain, and right ankle pain. R. 899. Upon examination, there was tenderness to palpation of Vargas's cervical spine, paraspinal, and trapezius muscles, her lumbar spine, and her lumbar paraspinal muscles. R. 900. Her range of motion was limited on flexion, extension, rotation, and bending. R. 900. Her right shoulder was also tender to palpation. R. 900. Multiple tests for shoulder impingement and injury were positive, but she could not tolerate further testing due to the pain. R. 900. Her right elbow, left knee, and right ankle were also tender to palpation and had limited ranges of motion on flexion. R. 900-01. Her muscle strength was normal in all extremities except for right shoulder, right elbow, left knee, and right ankle muscles. R. 901. She also had decreased sensation to light touch and pinprick in the right C5-T1 dermatome and right L2-S1 dermatome. R. 901. Dr. Rufin-Lew assessed Vargas as having cervical spine disc herniation with right C6 radiculopathy, lumbar spine disc bulge and disc herniation, right shoulder Hills-Sachs fracture, labrum tear, tear of the posterior fibrous of the supraspinatus tendon, infraspinatus tendinosis, right elbow thickening and edema of the ulnar nerve, right ankle partial thickness tear of the anterior talofibular ligament, excessive peroneal tenosynovitis, and Achilles tendinosis. R. 901. Vargas was advised to continue with physical therapy and continue seeing specialists about her various conditions. R. 901-02.
On July 25, 2018, Dr. Rufin-Lew opined on Vargas's ability to do work-related activities on a day-to-day basis. R. 846-47. She found that Vargas could only lift zero to five pounds occasionally with her right upper extremity. R. 846. Vargas could stand and/or walk only three hours in an eight-hour workday and sit for only three hours in an eight-hour workday. R. 846. She could climb, bend, stoop, crouch, or kneel occasionally, and never crawl. R. 847. She could never reach with her right upper extremity or push and pull and could occasionally feel or handle. R. 847.
On September 18, 2018, Dr. Rufin-Lew again evaluated Vargas. R. 925. She continued to experience radiating neck pain and low back pain, both an 8 or 9 out of 10. R. 925. She also continued to experience right shoulder pain, right elbow pain, left knee pain, and right ankle pain. R. 925. She had attended 12 physical therapy sessions since the last evaluation. R. 926. Upon examination, there was tenderness to palpation of Vargas's cervical spine, paraspinal, and trapezius muscles, her lumbar spine, her lumbar paraspinal muscles, and her buttocks. R. 927. Her range of motion was limited on flexion, extension, rotation, and bending. R. 927. Her right shoulder, right elbow, left knee, and right ankle were also tender to palpation and had limited ranges of motion on flexion. R. 927. Her muscle strength was normal in all extremities except for right shoulder, right elbow, left knee, and right ankle muscles. R. 927. She also had decreased sensation to light touch and pinprick in the right C5-T1 dermatome and right L2-S1 dermatome. R. 927. Dr. Rufin-Lew assessed Vargas as having the same conditions as previously. R. 928. Vargas was advised to continue with physical therapy and continue seeing specialists about her various conditions. R. 928-29.
11. Alexandre B. De Moura, MD
On August 13, 2018, Dr. Moura examined Vargas. R. 874. She presented with neck and lower back pain, as well as headaches. R. 874. At the appointment, she received physical therapy, epidural injections, and diagnostic imaging. R. 874. Based on previous radiological imaging, Dr. De Moura found that there was central herniation between C3-C4, C4-C5, and C5-C6, and left paracentral herniation of L4-L5. R. 874. A neurological exam showed muscle weakness in the right biceps, right wrist dorsiflexor, and right outside of the leg, and decreased sensation to pinprick and light touch in the right C5 and L5 distribution. R. 875. Vargas was viewed to be in "excessive" discomfort, her range of motion was painful, there was evidence of bilateral paraspinal musculator spasms, and there was tenderness to palpation. R. 875-76. Her range of cervical and lumbar motion was decreased. R. 875-76. Dr. De Moura thought she would benefit from an anterior cervical discectomy and fusion and anticipated subsequent lumbar spinal surgery. R. 877. Vargas agreed to proceed with surgery. R. 877.
Such surgeries are performed to treat damaged discs in the neck area of the spine. See Johns Hopkins Med., Anterior Cervical Discectomy and Fusion (ACDF) Surgery, https://www.hopkinsmedicine.org/neurologyneurosurgery/news/videos/bydon-acdf-video.html (last visited August 4, 2022).
On September 11, 2018, Dr. De Moura wrote a letter confirming that Vargas was being treated for spinal injuries and was indicated for an anterior cervical discectomy and fusion. R. 873.
12. Cobert Price, PA
On September 11, 2018, Cobert Price PA examined Vargas. R. 848-50. She reported neck pain radiating into her upper extremities and low back pain radiating into her lower extremities. R. 851. The neck pain was a 9 out of 10 and the back pain was a 10 out of 10, and the pain was exacerbated by bending, lifting, sitting, standing, and walking. R. 851. Physical therapy and medication did not improve Vargas's symptoms. R. 851. Price noted that she ambulated without assistance. R. 848.
With respect to her cervical spine, Vargas had bilateral trapezial spasm and tenderness, midline tenderness, and pain extremes of flexion, extension, and rotation to the left and right. R. 848. Her range of motion was decreased for flexion, extension, lateral bending, and lateral rotation. R. 848. Similarly, Vargas's lumbar spine had midline tenderness, bilateral paraspinal spasm and tenderness, and pain extremes of flexion, extension, and bending to the left and right. R. 848. Her range of motion was decreased for flexion, extension, and lateral bending and rotation. R. 848. Her motor exam was normal in both upper extremities but she had diminished reflexes and diminished strength in her lower extremities. R. 848-49. Price noted that Vargas had difficulty carrying her seven-month-old baby, who weighed 23 pounds, due to her neck and back pain. R. 849.
That same day, Price completed a form regarding Vargas's ability to work. R. 859. He indicated that she was currently disabled and that her estimated date of return to work was unknown. R. 859.
13. Tamer Elbaz, MD
On September 20, 2018, Dr. Elbaz saw Vargas and reported that she would be able to return to work or school with no restrictions the next day but that she could not lift, carry, push, or pull heavy objects, could not stand or walk for prolonged periods of time, could not climb, squat, kneel, or bend, and could not participate in any sports. R. 870. On September 26, 2018, he wrote a letter explaining that Vargas was being treated and evaluated at his office for low back, neck, right shoulder, elbow, and bilateral knee pain. R. 871. Because of her condition, she was unable to bend, lift, or stand for a prolonged period of time. R. 871. Her diagnoses were lumbar and cervical radiculopathy, traumatic arthropathy of the right shoulder, pain in both knees, long term opiate use, and traumatic arthropathy of the right elbow. R. 871. On November 5, 2018, Dr. Elbaz wrote another letter identical to the September one. R. 869. 14. Shari Bispham, LMSW
On October 31, 2018, Vargas was referred for a psychosocial assessment for supportive housing. R. 880. She reported having mental health issues since childhood and first received treatment at age 10 or 11. R. 880. Vargas did not receive mental health treatment between 2011 and 2016, until her car accident. R. 880. She reported having ongoing anxiety that resulted in daily panic attacks and reported two previous psychiatric hospitalizations. R. 880.
Vargas reported that the car accident caused depressive symptoms including fear that something bad would happen, anxiety and nervousness, easily becoming annoyed, restlessness, trouble relaxing, and uncontrollable worrying. R. 880. She was homeless and living in a shelter. R. 880. She reported having no social and peer support and no community involvement, volunteer activities, or other interests. R. 881-82.
Bispham observed that Vargas's appearance was generally normal and her attitude cooperative. R. 883. She had a logical thought process, full affect, clear speech, and normal judgment. R. 883-84. She did not appear to be experiencing any hallucinations or delusions. R. 884. Vargas did, however, report impairments with cognition and her short-term and long-term memory. R. 884. She also reported a history of picking at her skin. R. 884. According to the depression screening tool, Vargas was severely depressed. R. 885.
Bispham described Vargas as having a history of severe and persistent mental illness due to domestic violence and other traumatic events, including the car accident. R. 885.Vargas could benefit from continued psychiatric care and psychotherapy. R. 886.
On November 2, 2018, Vargas was seen by another provider at the same institution for a psychiatric evaluation. R. 893. She presented with symptoms of a traumatic brain injury with a guarded prognosis. R. 893. She agreed that Vargas could benefit from continued psychiatric care and psychotherapy. R. 890.
15. Michael Healy, MD
On February 5, 2019, Dr. Healy examined Vargas at the SSA's request. R. 982. Dr. Healy wrote that her neck pain (which stemmed from the car accident) was located at ¶ 7, radiated to the right shoulder, and was aggravated by range of motion of her cervical spine. R. 982. The neck pain forced Vargas to keep her neck chronically flexed forward to alleviate the pain. R. 982. She also had a history of lower back pain related to the car accident; that pain was located at ¶ 5, radiated to her right lower extremity, and was aggravated by prolonged sitting, standing, walking, and bending. R. 982. Vargas also reported pain in both feet when walking. R. 982.
Vargas generally did not cook or have access to cooking, did not clean or do laundry, had difficulty shopping because of her pain, and could shower and dress herself. R. 983. She did not appear to be in acute distress, although her gait was slightly widened and she could not walk on her right heel. R. 983. She used no assistive devices. R. 983. She did not need any help getting on or off the examination table and was able to rise from a chair without difficulty. R. 983-94.
Her cervical spine showed decreased flexion, extension, and rotary motion. R. 984. Her lumbar spine also showed decreased flexion, extension, and rotary motion. R. 984. She had a full range of movement of her shoulders, elbows, forearms, and wrists, but she complained of shoulder pain. R. 984. She also had a full range of motion of her hips, knees, and ankles. R. 984. She had decreased strength in her right upper and lower extremities, and her grip strength in her right hand was decreased. R. 985. Dr. Healy diagnosed Vargas with neck pain (known history of cervical spinal intervertebral disc disruption), lower back pain (known history of lumbar spinal intervertebral disc disruption), and previous fracture of both first toes of each foot (repaired by surgery). R. 985. Her prognosis was good. R. 985.
He then completed a medical source statement. R. 985. Dr. Healy found that Vargas had moderate limitations standing, walking, climbing stairs, bending, lifting, and carrying. R. 985. She could continuously lift or carry up to 10 pounds, frequently lift or carry 11 to 20 pounds, occasionally lift or carry 21 to 50 pounds, and never lift or carry over 50 pounds. R. 987. She could sit for four hours at a time, stand for two hours at a time, and walk for one hour at a time. R. 988. In an eight-hour workday, she could sit for a total of seven hours, stand for a total of three, and walk for a total of one. R. 988. She did not need a cane to walk. R. 988. Vargas could frequently reach out and overhead, handle, finger, and feel with either hand, and could occasionally push or pull with either hand. R. 989. She could frequently operate foot controls with either foot. R. 989. She could never climb ladders or scaffolds, crouch, or crawl; occasionally climb stairs and ramps or kneel; and frequently balance or stoop. R. 990. She could frequently tolerate exposure to unprotected heights, moving mechanical parts, or operation of a motor vehicle; she could occasionally tolerate humidity and wetness, dust, odors, fumes, pulmonary irritants, extreme cold, or extreme heat. R. 991. She could tolerate moderate noise. R. 991. Finally, Vargas could travel without a companion for assistance, move without using an assistive device, walk a block at a reasonable pace on rough or uneven surfaces, use standard public transportation, climb a few steps at a reasonable pace using a single handrail, prepare a simple meal and feed herself, care for her personal hygiene, and sort, handle, or use paper files. R. 992.
16. Laura Kerenyi, PhD
Also on February 5, 2019, and at the SSA's request, Dr. Kerenyi performed a psychiatric evaluation of Vargas. R. 995. Vargas reported that she had been diagnosed with bipolar disorder, anxiety, depression, and attention deficit hyperactivity disorder. R. 995. She also reported difficulty falling asleep, waking up four times a night, and having nightmares three times a week. R. 996. She experienced crying spells, guilt, loss of interests, irritability, fatigue, loss of energy, worthlessness, diminished self-esteem, difficulties concentrating, and social withdrawal. R. 996. She was also restless, had difficulty concentrating, and had panic attacks twice a week. R. 996. She had a manic episode several days prior to the examination where she was distractable, felt like she did not need to sleep, and had an elevated and expansive mood. R. 996. When Vargas did not sleep for several days, she started to experience auditory hallucinations that someone was calling her name and visual hallucinations of little people. R. 996.
Dr. Kerenyi's mental status examination notes state that Vargas's demeanor was cooperative and that she was appropriately dressed and groomed and made appropriate eye contact. R. 997. Her thought processes were coherent and goal-directed with no evidence of hallucinations, delusions, or paranoia. R. 997. Vargas's attention, concentration, and recent and remote memory skills were all intact. R. 998. She had fair insight and judgment. R. 998. Dr. Kerenyi found that the results of the evaluation were consistent with Vargas's vocational and educational history. R. 998. She was able to dress, bathe, and groom herself, cook and prepare food for herself, do her own laundry, and shop for herself. R. 998. She took public transportation independently. R. 998. Vargas did not manage her own money; her mother did it for her. R. 998. She socialized with her son and mother but did not have any hobbies or interests. R. 998.
Dr. Kerenyi then completed a medical source statement. R. 998. She found that Vargas was not limited in her ability to understand, remember, or apply simple or complex directions and instructions. R. 998, 1001. She was not limited in her ability to use reason and judgment to make work-related decisions, her ability to sustain concentration and perform a task at a consistent pace, or her ability to sustain an ordinary routine and regular attendance at work. R. 998-99. She was, however, mildly limited in her ability to interact adequately with supervisors, coworkers, and the public, and mildly limited in her ability to regulate emotions, control behaviors, and maintain well-being. R. 998-99, 1002. Vargas could maintain personal hygiene and appropriate attire and was aware of normal hazards and appropriate precautions to take. R. 999. Her difficulties were caused by psychological issues. R. 999. The examination results were consistent with psychiatric and substance abuse problems that were not significant enough to interfere with Vargas's ability to function on a daily basis. R. 999. Dr. Kerenyi diagnosed Vargas with unspecified bipolar disorder, generalized anxiety disorder, and substance abuse disorder in remission. R. 999. She recommended that Vargas continue with psychological and psychiatric treatment and undergo vocational training and rehabilitation. R. 999. Her prognosis was guarded. R. 999.
C. Non-Treating Medical Evidence
1. Psychological Consultant S. Bhutwala
On July 14, 2015, Bhutwala submitted a Medical Determinable Impairments and Severity Form after reviewing Vargas's medical records and considering her activities of daily living and treatment (including medication). R. 60-62. Bhutwala found that Vargas had two medically determinable impairments, an affective disorder (Listing 12.04) and a drug/substance addition disorder (Listing 12.09). R. 60; see 20 C.F.R. Part 404, Subpart P, App'x 1, §§ 12.04, 12.09. She had mild difficulties in maintaining social function but no other restrictions as to the Paragraph "B" criteria for the relevant listings, and the evidence did not establish the presence of any Paragraph "C" criteria. R. 60-61. Bhutwala concluded that Vargas's impairment was "non-severe," that her statements about the intensity, persistence, and functionally limiting effects of her symptoms were unsubstantiated by the objective medical evidence, and that she was not disabled. R. 61-62.
IV. The ALJ's Decision
On April 2, 2019, the ALJ denied Vargas's DIB and SSI applications. R. 10-28. 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 Vargas had not engaged in any substantial gainful activity since October 27, 2016. R. 13. At step two, he found that Vargas had the following severe impairments: cervical degenerative disc disease with radiculopathy, lumbar degenerative disc disease with radiculopathy, bilateral foot bunion deformity and fourth mallet toe deformity (postsurgical repair), right ankle partial-thickness ligament tear, right shoulder status post tendon and ligament tear, bilateral knee patellar tracking abnormalities, generalized anxiety disorder, and unspecified bipolar disorder. 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, 416.920(d), 416.925, 416.926. 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 compromise of a nerve root or the spinal cord characterized by neuro-anatomic distribution of pain, limitation of spinal motion, motor loss accompanied by sensory or reflex loss, and positive straight4eg raising test, no medical finding of spinal arachnoiditis, and no evidence of lumbar spinal stenosis resulting in pseudoclaudication and inability to ambulate effectively. R. 13; 20 C.F.R. Part 404, Subpart P, App'x 1, § 1.04(A)-(C). The requirements of Listing 1.02A or B were also unsatisfied because the objective medical evidence did not show involvement of one major peripheral weight-bearing joint resulting in inability to ambulate effectively or involvement of one major peripheral joint in each upper extremity resulting in inability to perform fine and gross movements effectively. R. 13-14; 20 C.F.R. Part 404, Subpart P, App'x 1, § 1.02(A)-(B).
Because Vargas had no limitation in understanding, remembering, or applying information, moderate limitation in interacting with others, moderate limitation in concentrating, persisting, or maintaining pace, and no 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 Vargas had minimal capacity to adapt to changes in her environment), the ALJ also found that the requirements of Listing 12.04 (depressive, bipolar, and related disorders), and Listing 12.06 (anxiety and obsessive-compulsive disorders) were not satisfied. R. 14-15; 20 C.F.R. Part 404, Subpart P, App'x 1, §§ 12.04, 12.06.
The ALJ next established Vargas's RFC. R. 15-26. The ALJ found that she had the RFC to perform sedentary work, as defined in 20 C.F.R. § 404.1567(a) and § 416.967(a), except that she could: occasionally lift or carry up to 20 pounds, push or pull, climb ramps or stairs, or kneel; never climb ladders, ropes or scaffolds, crouch, or crawl; frequently balance, stoop, operate foot controls, reach, finger, feel, and handle; tolerate occasional exposure to extreme cold or heat, wetness or humidity, environmental irritants, and unprotected heights; frequently use hazardous machinery; and tolerate moderate noise. Id. Her work was limited to simple, routine tasks with only occasional decision-making required, occasional changes in the work setting, and occasional interaction with the public, coworkers, and supervision. R. 15. Vargas's impairments could reasonably be expected to cause her symptoms, but her "statements concerning the intensity, persistence, and limiting effects of [her] symptoms [were] not entirely consistent with the medical evidence and other evidence in the record," especially the longitudinal medical evidence in the file and her activities of daily living. R. 16. In reaching this determination, the ALJ considered Vargas's testimony, treatment records from all of her providers, and opinion evidence from her providers, the examining consultants, and the non-examining consultant. R. 15-26.
With respect to the opinion evidence, the ALJ gave the "greatest weight" to Dr. Healy's February 2019 opinion because he was an examining source and his opinion was supported by his own examination findings and the examination findings of other treating physicians. R. 20-21. The ALJ similarly gave "great weight" to Dr. Kerenyi's February 2019 opinion because she was an examining source who completed a detailed mental status examination of Vargas and her opinion was consistent with her findings. R. 23. The ALJ nevertheless found that, given Vargas's reports of depression, anxiety, and pain, greater limitations were warranted as to her RFC than those recommended by Dr. Kerenyi. R. 22-23. The ALJ also gave "great weight" to Dr. Broska's June 2015 opinion because she was an examining source and her opinion was supported by her examination findings, but again, the ALJ noted that greater mental limitations were warranted than those assessed by Dr. Broska in light of evidence of Vargas's continued anxiety and depressive symptoms. R. 22.
The ALJ gave little weight to the opinions of Dr. Tamer Elbaz and other employees of Pain Physicians NY, where he worked, because the file did not include treatment records from that provider with examination findings or treatment notes. R. 23. Additionally, the opinions were vague and internally inconsistent. R. 23. The ALJ also gave little weight to Dr. Rufin-Lew's July 2018 opinion because it was not supported by or consistent with the medical evidence in the file (specifically Dr. Healy's examination findings and other clinical signs and reports). R. 23-24. The ALJ similarly gave little weight to the opinions of Dr. Touliopoulos and other University Orthopedics employees, as well as opinion evidence from Cobert Price, because those opinions stated that Vargas was totally disabled and did not identify specific function-by-function limitations that impacted Vargas's ability to perform basic work activities. R. 24.
None of Dr. Robbins's July, September, or November 2018 opinions was supported by the mental status examinations in the file showing Vargas's intact memory, attention, and concentration. R. 25. His opinions were also inconsistent with each other and lacked support from clinical signs and findings. R. 25.
Finally, the ALJ gave little weight to the non-examining consultant's opinion because the evidence in the file was sufficient to conclude that Vargas's mental impairments caused more than a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on her ability to work. R. 26. He also gave little weight to the third-party function reports prepared by Vargas's mother and the SSA field office employee because they were unsupported. R. 26.
The ALJ also noted that Vargas's statements about the intensity, persistence, and limiting effects of her symptoms were not fully consistent with the weight of the evidence in the file, specifically the medical evidence and her activities of daily living. R. 26.
At step four, given Vargas's RFC, the ALJ determined that she could not perform any past relevant work. R. 26-27. There were, however, jobs existing in significant numbers in the national economy that Vargas could have performed through the date last insured. R.27-28.
The ALJ concluded that Vargas had not been disabled during the relevant period and was not entitled to DIB or SSI. R. 28.
V. The Appeals Council's Determination
Following the ALJ's unfavorable decision, Vargas requested that the Appeals Council review the decision. See R. 1-6. On March 30, 2020, the Appeals Council denied her 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 plaintiffs 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)); Cage v. Comm'r of Soc. Sec, 692 F.3d 118, 122 (2d Cir. 2012) ("In our review, we defer to the Commissioner's resolution of conflicting evidence."). 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 she 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 her "impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] 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 Onset Date Used by the ALJ
Vargas claims that the ALJ did not have the authority to adjudicate her application using a different alleged onset date than that indicated in her initial May 2015 application, and that remand is warranted to evaluate the entire period at issue. Because the ALJ relied on her attorney's hearing statement to use October 27, 2016, as the onset date in his opinion, Vargas contends that the ALJ left a period of time unadjudicated (January 15, 2015, through October 26, 2016) and therefore left claims and impairments in that time period unadjudicated as well. Vargas notes that the record contains medical evidence from that time period, including Dr. Broska's evaluation.
The ALJ properly relied on Vargas's statement through her counsel that her disability began on October 27, 2016. See Rotolo v. Berryhill 741 Fed.Appx. 851, 853 (2d Cir. 2018) ("We have held that, when counsel for a claimant concedes that the ALJ's review is limited to a particular time period, the ALJ need not evaluate the record for disability outside that time period."); Zabala v. Astrue, 595 F.3d 402, 408-09 (2d Cir. 2010) (ALJ did not err in limiting period of review where claimant's counsel requested to amend the period and there was no evidence that claimant was deceived or coerced into stipulating to the amended period); see also 20 C.F.R. §§ 404.1710(a), 416.1510(a) (representative may make statements about facts and law and make requests about proceedings).
Even if Vargas had not intended to amend her alleged onset date of disability, there is no "reasonable likelihood" that changing the period at issue would have changed the ALJ's analysis or ultimate decision. Zabala, 595 F.3d at 410. She cites no evidence that was excluded as a result of the ALJ's decision to make October 27, 2016, the alleged onset date that would have affected his analysis. Vargas suggests that Dr. Broska's 2015 examination was discounted, but the ALJ did consider Dr. Broska's evaluation-in fact, he gave it great weight-so Vargas's argument that the ALJ excluded pre-October 27, 2016 evidence from his evaluation is unconvincing. See R. 22. Moreover, other than Dr. Broska's evaluation, all of the pre-2016 medical records relate to Vargas's physical well-being, not her mental health, and Vargas does not appear to dispute the ALJ's physical RFC finding, only his finding as to the opinions of her psychiatrist, Dr. Robbins. Vargas has not shown, as is her burden, that any pre-2016 evidence would have necessitated that the ALJ find her disabled. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) ("[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.").
IV. The ALJ's RFC Determination
Based on all of the relevant medical and other evidence available, including Vargas's own testimony, the ALJ found that Vargas had the RFC to perform sedentary work with certain limitations described above. R. 15-26; see 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(3), 416.920(a)(4)(iv), 416.945(a)(3). Vargas had the burden of proving she did not have the RFC to perform any substantial gainful activity. See 20 C.F.R. §§ 404.1512(a), 404.1545(a)(3), 416.912(a), 416.945(a)(3).
Vargas 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 Dr. Robbins and did not assess the consultative examiners' opinions with regard to whether they were consistent with the record as a whole. Additionally, Vargas argues that, by assessing more restrictive limitations in Vargas's RFC than the consultative examiners recommended, the ALJ substituted his own lay assessment of the medical evidence.
A. Legal Standard
Because Vargas's DIB and SSI applications were filed before March 27, 2017, 20 C.F.R. § 404.1527 and § 416.927 guided the ALJ's analysis. Under the applicable regulations, when evaluating medical opinions by medical sources, ALJs generally give more weight to the medical opinion of atreating physician than a non-treating physician. 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1). Treating physicians are "likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations . . . ." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also Petrie v. Astrue, 412 Fed.Appx. 401, 405 (2d Cir. 2011). If the ALJ finds that a treating physician's medical opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, [the ALJ] will give it controlling weight." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Medically acceptable clinical and laboratory diagnostic techniques include consideration of a "patient's report of complaints, or history, ... an essential diagnostic tool." Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) (internal citation and quotation marks omitted).
The ALJ can discount a treating physician's opinion if the ALJ believes that it "lacks support or is internally inconsistent." Duncan v. Astrue, No. 09-cv-4462 (KAM), 2011 WL 1748549, at *20 (E.D.N.Y.May 6, 2011). "When other substantial evidence in the record conflicts with the treating physician's opinion, [] that opinion will not be deemed controlling. And the less consistent that opinion is with the record as a whole, the less weight it will be given." Snell v. Apfel 177 F.3d 128, 133 (2d Cir. 1999). If the ALJ decides that the treating physician's opinion is not entitled to controlling weight, he must decide how much weight it should be afforded, considering: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other significant factors. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6); Estrella v. Berryhill 925 F.3d 90, 95-96 (2d Cir. 2019).
When the ALJ discredits the opinion of a treating physician, the regulations direct him to "always give good reasons in [the] notice of determination or decision for the weight [given a] treating source's medical opinion." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Snell 177 F.3d at 133. He need not recite every piece of evidence in relation to these factors, however, so long as "the evidence of record permits [the Court] to glean the rationale of an ALJ's decision." Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam); see Martinez-Paulino v. Astrue, No. ll-cv-5485 (RPP), 2012 WL 3564140, at *16 (S.D.N.Y. Aug. 20, 2012) ("It is not necessary that the ALJ recite each factor explicitly, only that the decision reflects application of the substance of the rule."). Although an ALJ's failure to explicitly apply the factors is a procedural error and may be grounds for remand, if the Court determines upon "a searching review of the record" that "the substance of the treating physician rule was not traversed," affirmance is appropriate. Estrella, 925 F.3d at 96 (quoting Halloran, 362 F.3d at 32).
It is the ALJ's province to resolve conflicting evidence in the record, including medical evidence, and courts accordingly defer to an ALJ's determination. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) ("Genuine conflicts in the medical evidence are for the Commissioner to resolve."). "The ALJ is permitted to discount the opinion of a treating physician if it is inconsistent with other substantial evidence," and the ALJ's RFC determination "need not perfectly match any single medical opinion in the record" if it is supported by substantial evidence. Schillo v. Kijakazi, 31 F.4th 64, 78 (2d Cir. 2022). So long as the ALJ applies the "substance of the treating physician rule" and provides good reasons for the weight he gave a particular opinion, he may choose to discount that opinion or deviate from it in his RFC determination. Id. at 79; see Ramsey v. Comm'r of Soc. Sec, 830 Fed.Appx. 37, 39 (2d Cir. 2020) (ALJ committed no error in determining the scope of the claimant's RFC where he deviated from consultative examiners' recommendations to decrease the RFC based on other evidence in the record).
B. Analysis
The ALJ sufficiently considered the regulatory factors in affording Dr. Robbins's 2018 opinions little weight. Dr. Robbins was Vargas's treating psychiatrist. The ALJ properly noted the length of Dr. Robbins's treating relationship with Vargas, which spanned only four months. R. 24-25, 842-45, 872, 896-97. Additionally, in making his finding as to the opinion evidence, the ALJ noted with particularity treatment records for Vargas's treatment with Dr. Robins, her therapist, and the records from Dr. Kerenyi's examination. R. 25, 637-57, 994-1003. The ALJ specifically noted that Dr. Robbins's opinions were inconsistent with previous mental status examinations of Vargas that had shown intact memory, attention, and concentration. Id. The ALJ's discussion therefore sufficiently considered the length, nature, and extent of Dr. Robbins's treatment relationship, and the evidence supporting his opinion. See Petrie, 412 Fed.Appx. at 405 (a treating physician's opinion is not afforded controlling weight where his opinions were inconsistent with other substantial evidence in the record, such as a consultative physician's report).
The record contains no treatment notes from Dr. Robbins, only medical assessments and letters. Without any treatment notes or records from Dr. Robbins, The ALJ was within his right to evaluate Dr. Robbins's opinions in the context of Vargas's other mental health providers' treatment records.
The Court is not convinced, as the ALJ was, that Dr. Robbins's July and November 2018 opinions were internally inconsistent because the July opinion reported that Vargas had poor to no ability to interact with others or understand simple instructions, whereas the November opinion reported that she functioned well and could follow instructions. R. 25. It is only logical that, when a patient with a mental health condition starts taking medication that addresses that condition, their symptoms are likely to improve. Regardless, the ALJ properly considered the medical evidence in the file that supported and contradicted Dr. Robbins's opinions and evaluated his opinions' consistency with the record as a whole. It is not enough that Vargas disagrees with the ALJ's weighing of the evidence (not to mention that she appears to conflate Dr. Robbins's opinions with Dr. Robins's treatment notes and evaluations, see ECF No. 20 at 18, 20). "The substantial evidence standard means once an ALJ finds facts, [the Court] can reject those facts 'only if a reasonable factfinder would have to conclude otherwise.'" Brault, 683 F.3d at 448 (emphasis in original) (citation omitted). The record supports the ALJ's conclusion.
The ALJ also properly weighed Dr. Broska's and Dr. Kerenyi's opinions. Vargas is correct that the ALJ found both opinions persuasive because they were supported by the examiners' own examination findings, and that the ALJ did not explicitly address whether those two opinions were consistent with the record as a whole. R. 22-23. But immediately after evaluating Dr. Broska's and Dr. Kerenyi's opinions, the ALJ wrote: "[G]reater limitations are warranted" than those recommended by the two examiners "in light of evidence of the claimant's reports of continued anxiety and depressive symptoms"-that is, other evidence in the record. R. 22-23. The ALJ had no obligation to align his RFC analysis with any particular medical opinion, and he was entitled to modify Vargas's RFC based on his consideration of all the relevant medical evidence in the record. See Trepanier v. Comm'r of Soc. Sec. Admin., 752 Fed.Appx. 75, 79 (2d Cir. 2018) ("Even where the ALJ's determination does not perfectly correspond with any of the opinions of medical sources cited in his decision ... the ALJ [is] entitled to weigh all of the evidence available to make a residual functional capacity finding that [is] consistent with the record as a whole."); see also Snyder v. SauL 840 Fed.Appx. 641, 643 (2d Cir. 2021) (affirming where ALJ incorporated more restrictions into RFC than those identified by a medical source); Cook v. Comm'r of Soc. Sec, 818 Fed.Appx. 108, 109 (2d Cir. 2020) (no medical opinion evidence is required to justify an RFC analysis when the record contains "sufficient evidence" from which the ALJ can assess the RFC).
CONCLUSION
Because the ALJ's conclusion was based on substantial evidence, I recommend that Vargas's motion be denied and the Commissioner's motion 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 Mary Kay Vyskocil at the United States Courthouse, 500 Pearl Street, 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 Vyskocil. 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).