Vellone v. Saul

Full title: MARTHA VELLONE, on behalf of Kenneth Vellone, Dec'd, Plaintiff, v. ANDREW…

Court: United States District Court, Southern District of New York

Date published: Jan 29, 2021

1:20-cv-00261 (RA) (KHP) (S.D.N.Y. Jan. 29, 2021)

Opinion

1:20-cv-00261 (RA) (KHP)

01-29-2021

MARTHA VELLONE, on behalf of Kenneth Vellone, Dec'd, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.

KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE

To Hon. Ronnie Abrams, United States District Judge

REPORT AND RECOMMENDATION

KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE

Named-plaintiff Martha Vellone, represented by counsel, commenced this action against the Commissioner of the Social Security Administration (the “Commissioner”) on behalf of her now-deceased ex-husband, Kenneth Vellone (“Plaintiff” or “Vellone”). Pursuant to the Social Security Act (the “Act”), 42 U.S.C. § 405(g), Vellone seeks review of the Commissioner's decision that he was not disabled under Sections 216(i) and 223(d) of the Act from June 15, 2016-Vellone's alleged disability onset date-through January 21, 2019, the date of his passing.

The parties submitted cross motions for judgment on the pleadings (ECF Nos. 28, 40), pursuant to the Court's Order at ECF No. 10. Plaintiff appeals the Commissioner's decision claiming that: (1) the Administrative Law Judge (“ALJ”) failed to properly consider the relevant medical evidence of record in determining Plaintiff's residual functional capacity to perform work; (2) the ALJ's evaluation of Plaintiff's subjective complaints were not supported by substantial evidence; and (3) the ALJ's Step 4 and Step 5 analysis was not supported by substantial evidence. For the reasons set forth below, I respectfully recommend that Plaintiff's motion be GRANTED and that the Commissioner's motion be DENIED.

Background

Plaintiff was born on October 2, 1957. (Administrative Record (“R.”) 68, 289.) He obtained a GED in 1977 and spent most of the following 35 years working as a jeweler. (R. 183.) As a jeweler, Plaintiff would fabricate and repair various types of jewelry-work which required him to walk for an hour, stand for an hour, sit for six hours, and stoop for 30 minutes each day. (R. 39, 196.) Plaintiff was also required to be able to lift equipment and/or objects of up to ten pounds. (R. 39, 196.) Plaintiff was laid off from his job in June of 2016. (R. 182.) The record reveals that Plaintiff believed he was laid off because his disability limited his ability to work as a jeweler. (See R. 157.) Although Plaintiff attempted to resume working at some point, he was unable to hold a job.

I. Procedural History and Hearing Testimony

Plaintiff filed his initial claim for disability insurance benefits under the Act on December 5, 2017. (R. 10, 69.) The Commissioner denied Plaintiff's initial application on April 6, 2018. (R. 86.) Plaintiff contested the denial and filed a request for hearing on May 9, 2018, which was granted. (R. 10.) Unfortunately, Plaintiff passed away on January 21, 2019 due to a heart attack. (R. 32.) On April 12, 2019 Plaintiff's ex-wife, Martha Mooniaz (Vellone) appeared and testified at the ALJ hearing on Plaintiff's behalf. (R. 36.) Ms. Mooniaz testified that, starting in 2016, Plaintiff was unable to maintain a stable job because his chronic pain forced him to regularly miss work. (R. 37-38, 43, 50.) Further, Mooniaz testified that she visited Plaintiff every weekend over the course of the last couple of years prior to his passing. (R. 42.) During those visits, Mooniaz observed Plaintiff walking around his home with a noticeable limp due to his back pain. (R. 42-43.) According to Mooniaz, Plaintiff would often complain that he was unable to sit or stand for extended periods of time because of his back pain and that he suffered from back spasms, recurrent pins and needles down his legs, and numbness. (R. 4344, 52, 54-55.) Mooniaz also testified that Plaintiff was unable to drive a car, attend his children's soccer games, or play with his children in the park due to his pain. (R. 46, 49.) Finally, Mooniaz testified that Plaintiff took two medications - Neurontin and Oxycodone - for pain management. (R. 55.)

II. Summary of Relevant Medical Evidence

Hospitalizations Prior to the Alleged Disability Onset:

The record indicates that Vellone was hospitalized numerous times at New York Presbyterian Hospital in the year preceding the onset of his alleged disability. (R. 262-308.) However, only a few of the hospital visits are remotely relevant to the instant action. On April 21, 2015, Vellone was admitted to the emergency room complaining of pain to his left pelvic area. A physician, Edwin Naamon, M.D., assessed Vellone's hip and determined that Vellone was ambulatory, not in acute distress, and that he should be discharged. (R. 308.) Vellone was also admitted to the emergency room on multiple occasions due to his sustained use of oxycodone. For instance, on July 5, 2015 Vellone was found unconscious on a New York City bus. (R. 303.) The hospital records indicate that Vellone refused treatment and wanted to be discharged immediately. (R. 304; see also R. 305.) Vellone also admitted himself on November 24, 2015 due to severe oxycodone withdrawal. (R. 301.)

Hospitalizations After the Alleged Disability Onset:

On August 14, 2017 Vellone received an x-ray of his spine at the Philips Ambulatory Care Center, part of the Mount Sinai Beth Israel hospital system. (R. 240-41.) The x-ray was assessed by an attending radiologist and revealed mild degenerative changes involving the L3 to the S1 disc spaces, multilevel facet arthropathy, and probable muscle spasms. (R. 241.)¹

1 These findings were also confirmed by the medical evaluation conducted in connection with Plaintiff's initial disability determination. (R. 74-75.)

Then, on October 1, 2017, Vellone's mother called the police because Vellone was verbally abusing and threatening her. (R. 268.) As a result, Vellone was admitted to a hospital for treatment. He told those evaluating him that he had been mixing opiates with vodka in order to, at least in part, treat his pain. (R. 268.) Just a few weeks later, on October 28, 2017, Vellone was once again found unresponsive and was admitted to New York Presbyterian. Vellone reported to the doctor assigned to his care on this occasion that he drank beer and took “2 percocets” in an attempt to relieve chronic back pain. (R. 264.)

Dr. Abdul C. Azeez:

The record indicates that Dr. Abdul C. Azeez, M.D. was Plaintiff's primary care physician from 1997 through Plaintiff's death in early 2019. (See, e.g., R. 185.) However, the only substantive medical evidence of record directly associated with Dr. Azeez is a Medical Findings Summary from March of 2018. (R. 331-33.) The summary classified Vellone's back pain as moderately severe. (R. 331.) Further, Dr. Azeez opined that Vellone's symptoms were likely to increase if he were placed in a competitive work environment. (R. 331.) Dr. Azeez noted that Plaintiff's back pain “continuously” interfered with Plaintiff's attention and concentration (R. 331, ) and that Plaintiff would be limited to three hours of sitting and three hours of standing/walking over the course of an eight-hour workday (R. 332). Dr. Azeez also opined that Vellone could never stoop, kneel, or crouch and that he could occasionally lift materials between 10 and 15 pounds. (R. 332.) Dr. Azeez's summary also noted that Vellone could occasionally operate a motor vehicle and occasionally perform fingering and fine manipulation. (R. 332.) Finally, Dr. Azeez opined that Plaintiff's condition would force more than 3 absences from work over the course of a month, that Plaintiff would be off task over 20% of the workday, and that Plaintiff would require a daily two to three hour work break to manage his pain. (R. 333.) Dr. Azeez also clarified that these limitations applied on or before June 2016 but offered limited objective clinical findings to support his conclusions. (R. 331, 333.)

Dr. Richard Chang:

Plaintiff saw Dr. Richard Chang, M.D. twice during the month of December 2017 based on a referral from Dr. Azeez in light of Plaintiff's persistent back pain. (See R. 318.) During the first visit, on December 15, 2017, Vellone told Dr. Chang that his back pain was sharp and constant and had been worsening over the course of recent months. (R. 318.) The pain radiated from Vellone's back to his left lower extremity and worsened with any movement, especially while walking or standing. (R. 318.) Dr. Chang noted arthritic deformities in Plaintiff's hip and degenerative disc disease in Plaintiff's spine. (R. 320.) Dr. Chang outlined Vellone's treatment options, directed him to continue taking his pain medication, and prescribed gabapentin to supplement his pain management. (R. 321.)

During the second follow-up visit, on December 29, 2017, Vellone was in even more pain. Vellone rated his back pain as ten out of ten (the worst possible pain) and reported that the gabapentin caused negative side effects. (R. 311.) Plaintiff also reported that the pain was affecting his ability to work and support his family. (R. 311.) Dr. Chang analyzed an MRI of Plaintiff's back and found a “left central disc herniation contacting the descending left Si nerve root at ¶ 4-5” along with a “large broad based disc herniation with left central and foraminal disc protrusion contacting the exiting L4 and descending L5 nerve roots.” (R. 314.) Dr. Chang also upped Plaintiff's dose of gabapentin, directed Plaintiff to continue taking his other medications, and recommended supplemental steroid injections. (R. 314.) Finally, Dr. Chang noted at both visits that Plaintiff was able to heel, toe, and tandem walk. (R. 313, 320.)

Dr. Joseph Solberg:

Plaintiff also saw Dr. Joseph Solberg, D.O. twice during the month of November 2018.

At the first visit, which took place on November 8, 2018, Plaintiff reported nine out of ten back pain that was exacerbated by walking, sitting, and standing. (R. 328.) He reported that the pain was constant. (R. 328.) However, Vellone failed to bring his MRI to his visit with Dr. Solberg. Accordingly, Vellone scheduled a follow-up appointment to provide the MRI and to discuss a potential surgical referral. (R. 329.) At the November 20, 2018 follow-up visit, Plaintiff reported the same type of pain (radiating from the left buttock to the foot) and the same pain severity. (R. 324.) Dr. Solberg recorded Plaintiff's gait as normal and confirmed Plaintiff's ability to heel/toe walk. (R. 326.) Further, based on Plaintiff's MRI, Dr. Solberg found a “paracentral disc protrusion [at] ¶ 5-S1.” (R. 326.) Because other treatment efforts had failed, Dr. Solberg referred Vellone for back surgery. (R. 326.)

Dr. S. Ahmed:

On March 21, 2018 Dr. S. Ahmed - a non-examining state agency medical consultant -evaluated Vellone's medical records in connection with Plaintiff's initial application for disability benefits. In short, Dr. Ahmed analyzed the medical evidence outlined above that was available and, based on those records, determined that Vellone had a severe medically determinable impairment-namely, Degenerative Disc Disease. (R. 75.) However, based on this evaluation, the disability examiner determined that Plaintiff was not disabled under the Act. (R. 77-78.)

III. The Commissioner's Decision

ALJ Carlton determined that Plaintiff met the insured status requirements of the Act through the end of the year 2020. (R. 12.) Although the ALJ found that Plaintiff engaged in substantial gainful activity from October 16, 2017 through November 3, 2017, he nevertheless found that there had been a continuous 12-month period since the alleged disability onset date during which Plaintiff did not engage in substantial gainful activity. (R. 12-13.) Further, the ALJ found that Plaintiff had degenerative disc disease of the lumbar spine with multilevel herniated discs and that this condition constituted a severe impairment under the Act. (R. 13.)²However, the ALJ concluded that Plaintiff did not have an impairment, or combination of impairments, that met or medically equaled the severity of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 13.) The ALJ then found that Plaintiff retained the residual functional capacity (“RFC”) to perform sedentary work, except that he could never climb ladders, ropes or scaffolds; must avoid slippery or uneven surfaces; could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; have no exposure to unprotected heights; and could not operate a motor vehicle as a condition of employment. (R. 13.) As such, the ALJ determined that Plaintiff was capable of performing his past relevant work as a jeweler since that work does not require the performance of work-related activities precluded by Plaintiff's RFC. (R. 16.)

2 Although the record contains some evidence of potential psychological impairments, Plaintiff does not seek judicial review on that basis. (See, e.g., R. 76.)

Thus, the ALJ held that Plaintiff had not been disabled, as defined by the Act, from June 15, 2016 through January 21, 2019 (the date of his death). (R. 17.) Plaintiff appealed that determination to the Appeals Council. (R. 236-39.) The Appeals Council denied Plaintiff's appeal on December 9, 2019. (R. 1.) The instant case followed.

Discussion

I. The Applicable Law

A. Judicial Standard of Review of the Commissioner's Determination

A court's review of a Social Security disability determination requires two distinct inquiries. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987); Dwyer v. Astrue, 800 F.Supp.2d 542, 546 (S.D.N.Y. 2011). First, the court must determine whether the Commissioner applied the correct legal principles in reaching a decision. See Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019). Second, the court must decide whether the Commissioner's decision is supported by substantial evidence in the record. Id. Moreover, if the Commissioner's decision is supported by substantial evidence, the ALJ's findings as to any facts are conclusive. 42 U.S.C. §§ 405(g), 1383(c)(3).

An ALJ's failure to apply the correct legal standard constitutes reversible error if that failure might have affected the disposition of the case. See Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). This applies to an ALJ's failure to follow an applicable statutory provision, 8 regulation, or Social Security Ruling (“SSR”). See, e.g., id. at 266-67 (regulation); Schaal v. Callahan, 993 F.Supp. 85, 93 (D. Conn. 1997) (SSR). In such a case, the court may remand the matter to the Commissioner under sentence four of 42 U.S.C. § 405(g), especially if deemed necessary to allow the ALJ to develop a full and fair record to explain his or her reasoning. See, e.g., Donnelly v. Colvin, No. 13-cv-7244 (AJN) (RLE), 2015 WL 1499227, at *8 (S.D.N.Y. Mar. 31, 2015).

If the reviewing court is satisfied that the ALJ applied the correct legal standards, then the court must “conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision.” Brault v. Soc. Sec. Admin. Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). Thus, the court does not determine de novo whether a claimant is disabled. Id. (citing Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)). To be supported by substantial evidence, the ALJ's decision must be based on consideration of “all evidence available in [the claimant]'s case record.” 42 U.S.C. §§ 423(d)(5)(B). The Act requires the ALJ to set forth “a discussion of the evidence” and the “reasons upon which [the decision] is based.” 42 U.S.C. § 405(b)(1). While the ALJ's decision need not “mention[] every item of testimony presented, ” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam), or “reconcile explicitly every conflicting shred of medical testimony, ” Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010), the ALJ may not ignore or mischaracterize evidence of a person's alleged disability. See Ericksson v. Comm'r of Soc. Sec., 557 F.3d 79, 82-84 (2d Cir. 2009) (mischaracterizing evidence); Kohler, 546 F.3d at 268-69 (overlooking and mischaracterizing evidence); Ruiz v. Barnhart, No. 01-cv-1120 (DC), 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring evidence). Eschewing rote analysis and conclusory explanations, the ALJ must discuss the “the crucial factors in any determination . . . with sufficient specificity to enable the reviewing court to decide whether the determination is supported by substantial evidence.” Calzada v. Astrue, 753 F.Supp.2d 250, 269 (S.D.N.Y. 2010) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)).

If the decision denying benefits applied the correct legal standards and is based on substantial evidence, the reviewing court must affirm; if not, the court may modify or reverse the decision, with or without remand. 42 U.S.C. § 405(g).

B. Legal Principles Applicable to the Commissioner's Disability Determination

Under the Act, every individual considered to have a “disability” is entitled to benefits. 42 U.S.C. §§ 423(a)(1), 1382. The Act defines “disability” as 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant's impairments must be “of such severity that he is not only unable to do previous work but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

To determine whether an individual is entitled to receive disability benefits, the Commissioner is required to conduct the following sequential five-step inquiry:

(1) First, determine whether the claimant is currently engaged in any substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

(2) Second, if not gainfully engaged in any activity, determine whether the claimant has a “severe impairment” that significantly limits his or her ability to do basic work activities. Under the applicable regulations, an impairment or combination of impairments that significantly limits the claimant's ability to perform basic work activities is considered “severe.” 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

(3) Third, if the claimant has a “severe impairment, ” determine whether the impairment is one of those listed in Appendix 1 of the regulations - if it is, the Commissioner will presume the claimant to be disabled and the claimant will be eligible for benefits. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). At this stage, the Commissioner also must determine the claimant's RFC; that is, her ability to perform physical and mental work activities on a sustained basis despite her impairments.³ 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

(4) Fourth, if the claimant does not meet the criteria for being presumed disabled, the Commissioner next must determine whether the claimant possesses the RFC to perform his or her past work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

(5) Fifth, if the claimant is not capable of performing work he or she performed in the past, the Commissioner must determine whether the claimant is capable of performing other work which exists in the national economy.

3 A claimant's RFC is “the most [she] can still do despite [her] limitations.” 20 C.F.R. § 404.1545(a); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010); see also S.S.R. 96-9P (clarifying that a claimant's RFC is his maximum ability to perform full-time work on a regular and continuing basis). The ALJ's assessment of a claimant's RFC must be based on “all relevant medical and other evidence, ” including objective medical evidence, such as x-rays and MRIs, the opinions of treating and consultative physicians, and statements by the claimant and others concerning the claimant's impairments, symptoms, physical limitations, and difficulty performing daily activities. Genier, 606 F.3d at 49 (citing 20 C.F.R. § 404.1545(a)(3)).

The claimant bears the burden of proof at the first four steps of the analysis. Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). At the last step, however, the Commissioner has the burden of showing that “there is other gainful work in the national economy which the claimant could perform.” Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998).

In Burgess v. Astrue, the Second Circuit set forth the factors an ALJ was obligated to evaluate when determining whether to give a treating physician's medical opinion controlling weight in accordance with the so-called “treating physicians rule” per 20 C.F.R. §§ 404.1527(c), 416.927(c). 537 F.3d 117 (2d Cir. 2008). At base, the rule required an ALJ to assign weight to the medical opinions of a claimant's treating physician based on medically acceptable techniques and the other medical evidence of record. Id. (citation omitted). But Burgess evaluated the treating physicians rule under regulations applicable to claims filed prior to March 27, 2017. Claims filed on or after March 27, 2017 are subject to new regulations set forth in 20 C.F.R. §§ 404.1520c and 416.920c.

Under these new regulations, while the Commissioner no longer needs to assign particular evidentiary weight to treating sources or their opinions (as is required under the Treating Physicians Rule), the Commissioner must still consider certain factors in considering medical opinions. See 20 C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c); see also Andrew G. v. Comm'r of Soc. Sec., 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (citing Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed.Reg. 5844, at 5867-68 (Jan. 18, 2017)). The new regulatory factors are: (1) supportability, (2) consistency, (3) relationship with the claimant (which has five sub-factors of its own to consider), (4) specialization, and (5) other factors. 20 C.F.R. §§ 404.1520c(c), 416.920c(c). Further, in cases where the new regulations apply, an ALJ must explain his/her approach with respect to the first two factors when considering a medical opinion, but need not expound on the remaining three. 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The Commissioner is tasked with analyzing medical opinions at the source-level, meaning that the Commissioner need not discuss each and every medical opinion in the record, and may apply the new factors holistically to a single medical source. 20 C.F.R. §§ 404.1520c(b)(1), 416.920c(b)(1). These new rules do not apply to the Commissioner's analysis or consideration of nonmedical sources. 20 C.F.R. §§ 404.1520c(d), 416.920c(d).

With respect to the two required factors, the new rules provide that, for supportability, the strength of a medical opinion increases as the relevance of the objective medical evidence and explanations presented by the medical source increase. 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). Simply put, supportability is an inquiry confined to the medical source's own records that focuses on how well a medical source supported and explained their opinion. As for consistency, the new rules provide that the greater the consistency between a particular medical source/opinion and the other evidence in the medical record, the stronger that medical opinion becomes. 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(3). Simply put, consistency is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record.

C. Development of the Record

However, even before the Court assesses whether the ALJ applied proper legal principles or whether the ALJ's decision is supported by substantial evidence, as described above, the Court must assess whether the ALJ satisfied the threshold for fully developing the administrative record. In Social Security proceedings, the ALJ must affirmatively develop the record on behalf of the claimant, including those represented by counsel. See Moran v. Astrue, 13 569 F.3d 108, 112-13 (2d Cir. 2009); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). As part of this duty, the ALJ must investigate the facts and develop the arguments both for and against granting benefits. Moran, 569 F.3d at 108, 112. This is so because a hearing on disability benefits is a non-adversarial proceeding. Additionally, the applicable regulations require the ALJ to develop a claimant's complete medical history. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (citing 20 C.F.R. §§ 404.1512(d)-(f)). In other words, “the court must first be satisfied that the ALJ provided plaintiff with a full hearing under the Secretary's regulations and also fully and completely developed the administrative record” before it even assesses the evidence presented. Scott v. Astrue, No. 9-cv-3999 (KAM) (RLM), 2010 WL 2736879, at *12 (E.D.N.Y. July 9, 2010) (internal quotations and citations omitted).

II. Analysis

A. The Duty to Develop the Record and the ALJ's RFC Determination

As set forth above, the Court must, as a threshold matter, determine whether the ALJ satisfied his duty to develop the record. Where there are deficiencies or gaps in the record, an ALJ must develop a claimant's medical history, to the extent possible. Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999). Indeed, the ALJ has the authority to subpoena medical evidence on behalf of a claimant, but, at the very least, must request the missing records through ordinary means. Gonell De Abreu v. Colvin, No. 16-cv-4892 (BMC), 2017 WL 1843103, at *5 (E.D.N.Y. May 2, 2017).

In the instant case, the record suggests that Plaintiff's primary physician was Dr. Abdul Azeez. Dr. Azeez started treating Plaintiff in 2003, at the latest. (R. 237, 331.) Some evidence indicates that Plaintiff first saw Dr. Azeez as early as 1997. (R. 185.) Either way, it is clear that Dr. Azeez treated Plaintiff for at least fifteen years prior to Plaintiff's death. However, the only medical record included in the administrative record from Dr. Azeez is a three-page Medical Findings Summary from March 2018. (R.331-33.) Thus, there is a glaring gap in the record with respect to Plaintiff's medical history-a gap which includes over a year and a half's worth of records after the onset date of Plaintiff's alleged disability. Further, there is no evidence that the ALJ or anyone from the Commissioner's office endeavored to acquire these records. (See R. 70-74) (referencing attempts to acquire a consultative examination report from Dr. Azeez, but no additional records).

Counsel for the Commissioner correctly points out, however, that both the SSA and the ALJ took a “number of actions to try to help Plaintiff develop the record . . . including . . . questioning Plaintiff at the hearing about whether any evidence was missing” and offering to help Plaintiff's counsel retrieve a missing record from Dr. Solberg's office. (ECF No. 41 at 12 n.12.) While there is no evidence that the ALJ attempted to retrieve additional medical records or treatment notes from Dr. Azeez, Plaintiff's counsel certified at the ALJ hearing that the record was complete and that no records were outstanding at that time. (R. 32.)

The Court notes that the administrative record in this case is relatively sparse. The record only contains a single functional assessment of Plaintiff's work-related capabilities and, as discussed above, lacks any medical records from a fifteen year treating relationship between Plaintiff and Dr. Azeez. An ALJ's affirmative duty to develop the record on behalf of a claimant represented by counsel is particularly important in social security cases where the record is so limited. Ajibose v. Colvin, 2016 U.S. Dist. LEXIS 136685, at *30-31 (E.D.N.Y. Sept. 30, 2016). However, the fact that Plaintiff's counsel affirmatively represented that no additional records were pending or missing suggests that the Plaintiff's medical history may be complete. See Eusepi v. Colvin, 595 Fed. App. 7, 9 (2d Cir. 2014) (summary order) (finding that the ALJ had no duty to further develop the record where claimant's attorney submitted additional posthearing materials and then represented that the medical record was complete). Given these circumstances, whether ALJ Carlton was obligated to inquire about and obtain additional records from Dr. Azeez is a close question. Accordingly, the ALJ's treatment of the record evidence requires additional analysis.

Notwithstanding the sparse administrative record, ALJ Carlton found that Plaintiff retained the RFC to perform sedentary work, except that he could never climb ladders, ropes or scaffolds; must avoid slippery or uneven surfaces; could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; have no exposure to unprotected heights; and could not operate a motor vehicle as a condition of employment. (R. 13.) In arriving at this RFC, the ALJ highlighted the inconsistencies between Dr. Azeez's Medical Findings Summary and the other medical evidence of record. (R. 16.) Importantly, however, the record lacks any functional assessment of Plaintiff's limitations from any medical source other than Dr. Azeez. Indeed, there is no indication that the ALJ sought to solicit additional functional assessments from other treating sources, such as Dr. Chang or Dr. Solberg. Unable to rely on such alternative functional assessments, the ALJ eventually discredited Dr. Azeez's findings based, in large part, on treatment notes from the other doctors of record. (See R. 16, 313-14, 320, 32526.) The ALJ was not permitted to do so.

Even assuming arguendo that there are in fact material inconsistencies between Dr. Azeez's treating opinion and the other physician's treatment notes, the ALJ was not permitted to rely on his own interpretation of those treatment notes to reconcile those inconsistencies. “Because an RFC determination is a medical determination, an ALJ who makes an RFC determination in the absence of supporting expert medical opinion has improperly substituted his own opinion for that of a physician, and has committed legal error.” Merriman v. Comm'r of Soc. Sec., No. 14-cv-3510 (PGG) (HBP), 2015 WL 5472934, at *18 (S.D.N.Y. Sept. 17, 2015); see also Martin v. Berryhill, No. 16-cv-6184 (FPG), 2017 WL 1313837, at *4 (W.D.N.Y. Apr. 10, 2017) (remanding where the ALJ determined that plaintiff could perform sedentary work absent any medical opinion regarding the plaintiff's ability to work at any exertional level). The evidence ALJ Carlton relied on in rejecting Dr. Azeez's functional assessment - i.e., treatment notes showing Plaintiff's generally normal gaits and ability to heel, toe, and tandem walk - is not medical opinion. Nor can such evidence overcome the need for a medical source to weigh in on Plaintiff's functional limitations. Hooper v. Colvin, 199 F.Supp.3d 796, 816 (S.D.N.Y. 2016). While ALJs are sometimes permitted to make an RFC determination without a treating source opinion evidence, “the RFC assessment will be sufficient only when the record . . . contains some useful assessment of the claimant's limitations from a medical source.” Morales v. Colvin, No. 3:16-cv-0003 (WIG), 2017 WL 462626, at *3 (D. Conn. Feb. 3, 2017) (emphasis in original) (citation omitted). Accordingly, the intermittent references to Plaintiff's normal gait and ability to heel, toe, and tandem walk cited by the ALJ are wholly inadequate bases, on their own, to discredit Dr. Azeez's findings with respect to Plaintiff's ability to sit, stand, or walk throughout an eight-hour workday.

Further, having reviewed the entire record in detail, none of the treatment notes from other doctors address Plaintiff's work-related functional capacity in any meaningful way. To the extent that the ALJ relies on additional treatment notes referencing Plaintiff's normal motor function, normal muscle bulk, negative straight leg raising, and range of motion, the ALJ cherry picked these findings amongst far more serious symptoms, impairments, and diagnoses discussed in those very same records. (See also Section IIB infra.) Thus, there is inadequate support in the record for the ALJ's RFC determination based on the record evidence. See Quinto v. Berryhill, No. 3:17-cv-0024 (JCH), 2017 WL 6017931, at *13-14 (D. Conn. Dec. 1, 2017) (remanding because the “ALJ improperly substituted his own expertise and interpretation for that of the treating physician by cherry picking the evidence from the treatment notes and interpreting the complex diagnostic evidence himself”).

Accordingly, I respectfully recommend that this matter be remanded with instructions to the ALJ: (1) to acquire additional medical records from Dr. Azeez concerning his longstanding medical relationship with Plaintiff and the alleged disability; (2) to seek additional medical source statements regarding Plaintiff's work-related functional limitations from the other treating sources (to the extent these sources are able to do so based on their notes and recollection); and (3) to reevaluate Plaintiff's claim and RFC based on this additional evidence.

B. The ALJ's RFC Determination is Otherwise Not Supported by Substantial Evidence

To start, in reviewing the ALJ's decision, it is clear that the ALJ addressed Dr. Azeez's treating opinion contained in the Medical Findings Summary both with respect to supportability and consistency, as required by the new regulations outlined above. However, the ALJ's analysis with respect to those regulatory factors, at least with respect to “consistency, ” was lacking.

As noted above, Dr. Azeez opined that Plaintiff's condition would force more than three absences from work over the course of a month and that Plaintiff would be off task over 20% of the workday. (R. 332.) The ALJ found, however, that the only support for these opinions was a note from Dr. Azeez that “the claimant experiences back and hip pain, ” which the ALJ found “does not indicate why these symptoms would warrant such severe absenteeism and off-task behavior.” (R. 16.) Thus, the ALJ reasonably found that there was limited evidence provided by Dr. Azeez to substantiate his assessment of Plaintiff's limitations. It bears noting, however, that it is possible that Dr. Azeez's findings would be further supported by records from Dr. Azeez's prior interactions with Plaintiff. Thus, as recommended above, the ALJ should endeavor to obtain those records to conduct a more complete analysis with respect to the supportability of Dr. Azeez's Medical Findings Summary, if additional records indeed exist.

The ALJ also criticized Dr. Azeez's assessment of Plaintiff's work-related limitations with respect to the regulatory factor of “consistency.” The ALJ explained that Dr. Azeez's opinion was inconsistent with other medical evidence in the record-evidence which indicated that Vellone had a “generally intact musculoskeletal and neurological functioning, including generally normal gaits and an ability to heel, toe, and tandem walk . . .” (R. 16.) However, this medical conclusion proffered by the ALJ misrepresents the record evidence. Indeed, some of the records ALJ Carlton cites to show Plaintiff's “generally intact musculoskeletal . . . functioning” and “generally normal gaits” specifically state that Plaintiff had an “antalgic” gait- which means that Plaintiff demonstrated an abnormal walking pattern due to pain.⁴ (R. 313, 320.) Further, the very same records indicate that Plaintiff had worsening lower back pain, which led the examining physician, Dr. Chang, to recommend that Plaintiff receive epidural steroid injections and to increase Plaintiff's dose of gabapentin from 300 to 600 milligrams in order to help manage the worsening pain. (R. 314.) Although one of the records cited by the ALJ does note that Plaintiff had a normal gait on November 20, 2018 (R. 326, ) that record also indicates degenerative changes in Plaintiff's spine along with a “left paracentral disc protrusion” and “neuroforaminal narrowing.”⁵ (R. 326.) Thus, it is clear to the Court that the ALJ cherry picked treatment notes that supported his RFC determination while ignoring equally, if not more significant evidence in those same records.

4 See https://www.ncbi.nlm.nih.gov/books/NBK559243/ (last visited January 20, 2021).

5 Neuroforaminal narrowing refers to a narrowing of the spinal column at the point where the spinal nerve exits, which causes inflammation and pain. See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6615450/ (last visited, Jan. 20, 2021).

Further, while the ALJ correctly points out that Vellone was able to heel, toe, and tandem walk, that fact is insufficient to ignore the functional limitations prescribed by Dr. Azeez. See Morris v. Colvin, No. 15-cv-5600 (JFB), 2016 WL 7235710, at *9 (E.D.N.Y. Dec. 14, 2016) (“the ALJ's reliance on [a treating physician's] medical notes indicating that plaintiff had a normal gait and normal motor and sensory exams does not justify his rejection of the treating physician's opinions”). Simply put, ALJ Carlton was not in a position to determine whether Plaintiff's ability to heel, toe, and tandem walk during a medical examination should invalidate the physical limitations set forth in Dr. Azeez's Medical Findings Summary. Thus, although the ALJ went through the motions of assessing the consistency of Dr. Aziz's opinion with the rest of the medical evidence of record, that analysis was lacking for the reasons set forth above.

With respect to the RFC determination itself, the ALJ determined that Plaintiff was capable of performing sedentary work, with certain additional limitations. The Second Circuit acknowledges that a plaintiff/claimant must be capable of sitting for extended periods of time in order to be able to perform sedentary work. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (“the concept of sedentary work contemplates substantial sitting”). Similarly, the Social Security Administration generally recognizes that an individual must be able to sit for a total of 6 hours in an 8-hour workday in order to perform sedentary work. SSR 96-9P, 1996 WL 374185, at *6 (1996). Thus, the ALJ's RFC determination materially differs from Dr. Azeez's medical opinion, which limits Plaintiff to three hours of sitting in an eight-hour workday. (R. 332.) In setting forth an RFC different from that of the lone functional assessment in the record, the ALJ failed to cite any medical evidence that directly contradicts the limitations Dr. Azeez ascribed to Plaintiff. Having reviewed the administrative record in detail, the Court notes that no such evidence exists. Instead of crediting Dr. Azeez's opinion, the ALJ found the opinion “only somewhat persuasive to the extent that it is consistent with performing work at the sedentary exertional level.” (R. 16.) Therefore, absent any medical evidence that would warrant invalidating Dr. Azeez's assessment of Plaintiff's work-related capabilities, the ALJ relied on his own lay opinion to determine Plaintiff's RFC, which is patently improper. Merriman, 2015 WL 5472934, at *18.

The Commissioner cites to various cases, including Matta v. Astrue, in support of the proposition that an ALJ's conclusions need not correspond to a medical opinion in the record. Notwithstanding the fact that Matta was a mental impairment case, it is distinguishable on other grounds as well. In Matta the Court summarized the opinions of four medical sources that conflicted with one another with respect to the plaintiff's ability to perform work. The plaintiff in Matta challenged the ALJ's conclusion that the evidence revealed plaintiff's stable condition and moderate symptoms. Matta v. Astrue, 508 Fed. App. 53, 56 (2d Cir. 2013) (summary order). The Court found that “[a]lthough the ALJ's conclusion may not perfectly correspond with any of the . . . medical sources cited in his decision, he was entitled to weigh all of the evidence available to make an RFC finding that was consistent with the record as a whole.” Id. Further, the court in Matta confirmed that the treating psychiatrist's opinion was not entitled to controlling weight since the ALJ provided sufficient reasons for departing from that opinion.” Id. at 57.

In the instant case, the issue is not that ALJ Carlton's decision does not “perfectly correspond” with Dr. Azeez's Medical Findings Summary. The issue is that it completely departs from Dr. Azeez's opinion, which was the only functional assessment contained in the administrative record. Further, the ALJ's RFC is not otherwise consistent with the record, as was the case in Matta. Here, the vast majority of relevant evidence suggests that Plaintiff experienced severe back pain throughout the relevant period and that his doctors' extensive efforts to help manage that pain were consistently unsuccessful, leading Dr. Solberg to eventually recommend back surgery. (See, e.g., R. 314, 326.) Indeed, the opposite was the case in Matta, where the plaintiff's condition deteriorated only after he stopped taking his medication. 508 Fed. App. at 57. Moreover, the fact that ALJ Carlton ignored substantial evidence in assessing Dr. Azeez's opinion with respect to the mandatory regulatory factor of “consistency, ” (as explained above) demonstrates that the ALJ provided insufficient reasons to permit a departure from the treating source's functional assessment.⁶

6 To the extent that the Commissioner cites to cases in support of the proposition that a formal medical opinion is not required for and ALJ to properly render an RFC, those decisions are equally distinguishable. For instance, in Trepanier v. Comm'r of Soc. Sec., the Court endorsed the ALJ's decision to fill gaps in a treating orthopedist's functional assessment based on other substantial evidence in the record. 752 Fed. App. 75, 79 (2d Cir. 2018) (summary order). Quite differently, in this case, the ALJ's RFC determination totally contradicts the treating source's opinion.

Accordingly, I recommend that this matter should also be remanded because the ALJ's RFC determination is not supported by substantial evidence.

C. Plaintiff's Subjective Complaints

In order to determine whether a claimant is disabled, an ALJ must consider subjective evidence of pain or disability drawn out in a claimant's testimony or from other portions of the record. See 20 C.F.R. § 404.1529(a). If an ALJ finds that the claimant has a “medically determinable impairment that could reasonably be expected to produce” the symptoms alleged, 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1), the ALJ must then evaluate the “intensity and persistence of [the claimant's] symptoms, such as pain, ” based on all of the available evidence when determining the claimant's RFC. 20 C.F.R. §§ 404.1529(c)(2), 416.929(c). An ALJ cannot reject subjective complaints of pain simply because the objective medical evidence of record does not substantiate those complaints. 20 C.F.R. §§ 404.1529(c)(2), 416.929(c). Instead, the ALJ must assess the subjective complaints in relation to the other evidence of record. 20 C.F.R. §§ 404.1529(c)(3)-(4). To the extent an ALJ finds that a claimant's subjective complaints are not supported by the record, the ALJ must clearly articulate “specific reasons for the weight given” to the complaints that are consistent with and supported by the record such that a reviewing court can assess that evaluation. SSR 16-3p.

The ALJ concluded that Vellone's statements about the intensity, persistence, and limiting effects of his pain were “inconsistent with the longitudinal medical evidence of record.” (R. 14.) Specifically, the ALJ discussed Dr. Chang's treatment notes evaluating multiple images of Plaintiff's spine throughout 2017 that showed mild degenerative changes, a left central disc herniation, foraminal stenosis, lumbar facet arthropathy, and degenerative disc disease at multiple levels. (R. 14-15.) However, the ALJ noted that while Plaintiff complained of ten out of ten back pain in a September 2017 hospital visit with Dr. Chang, Plaintiff was observed to be in no acute distress. (R. 15.)

In dismissing Plaintiff's subjective complaints, the ALJ also considered Dr. Solberg's treatment records. Those records indicated to the ALJ that Plaintiff had a normal gait, an ability to heal, to and tandem walk, negative straight leg raise tests, normal muscle bulk in his lumbar spine, and positive strength tests. According to the ALJ, these treatment notes were inconsistent with Plaintiff's reports of pain. (R. 15.)

Finally, rounding out the analysis, the ALJ generally stated that he considered Plaintiff's daily activities, symptoms, aggravating factors, medications and side effects, and measures used to relieve symptoms in considering Plaintiff's subjective complaints. (R. 15.)

However, as already discussed above, the ALJ failed to address various portions of these records that reflect both physicians' efforts to treat Plaintiff's pain. For example, as noted above, the ALJ cites to hospital visits with Dr. Chang at New York Presbyterian. Although the ALJ mentions certain treatment notes that could, in isolation, suggest that Plaintiff's pain was manageable, Dr. Chang concluded in the very same record: “[g]iven that the patient has not improved with tylenol, aleve, advil, and physical therapy/home exercise . . .left L5 and S1 transforaminal epidural steroid injections were recommended.” (R. 314.) Similarly, about a year later, treatment notes from Dr. Solberg indicated no acute distress, a normal gait, ability to heal, toe and tandem walk, negative straight leg raise tests, and normal muscle bulk in Plaintiff's lumbar spine. (R. 326.) However, that very same record concludes with Dr. Solberg explicitly saying that Plaintiff suffered from lumbosacral radiculopathy, ⁷ that epidurals and various medications did not alleviate Plaintiff's pain, and that, as a result, he was referring Plaintiff for surgery. (R. 326.) This progression clearly evidences severe pain as well as Plaintiff's doctors' unsuccessful efforts to help Plaintiff manage that pain. More importantly, the ALJ failed to mention any of this evidence in his decision.

7 Lumbosacral radiculopathy describes a pain syndrome caused by compression or irritation of nerve roots in the lower back. See https://www.ncbi.nlm.nih.gov/books/NBK430837/#:~:text=Lumbosacral%20radiculopathy%20is%20a%20term, ner ves%20exit%20the%20spinal%20canaL (last visited, Jan. 28, 2021).

To be sure, ALJ Carlton was not required to specify Plaintiff's specific symptoms that were inconsistent with the medical record. Nor was he required to mention every piece of testimony in rendering his decision. However, the ALJ was required to properly weigh the evidence corroborating Plaintiff's subjective complaints of pain. Woodford v. Apfel, 93 F.Supp.2d 521, 530 (S.D.N.Y. 2000). In light of the above, the ALJ failed to fully assess the records he relied on and failed to discuss the portions of those record that contradict his findings.

In sum, the record contains objective evidence that the ALJ should have weighed in his analysis. Plaintiff was diagnosed with radiculopathy and degenerative disc disease on multiple occasions by different physicians. Plaintiff had tried a number of remedies to alleviate his pain including various over the counter medications, oxycodone, Neurontin, and gabapentin to no avail. On such a record, the ALJ should not have concluded that Plaintiff's subjective complaints of pain were not credible. See Downey v. Barnhart, 294 F.Supp.2d 495, 503 (S.D.N.Y. 2003) (holding that ALJ did not properly consider similar evidence in evaluating Plaintiff's subjective complaints); Woodford, 93 F.Supp.2d at 530 (same). Accordingly, I recommend finding that the ALJ's determination with respect to Plaintiff's subjective complaints is not supported by substantial evidence.

To the extent that the parties dispute the admissibility of Plaintiff's Function Report, the Court need not address the parties' arguments since the ALJ's assessment of Plaintiff's subjective complaints of pain was inadequate even without considering that evidence.

D. Step Four Analysis

The Court notes that the parties present short arguments on the issue of whether the ALJ's Step Four analysis was supported by substantial evidence. However, because the Court recommends finding that the ALJ's decision was deficient, it would make little sense to evaluate the ALJ's Step Four analysis which, itself, was based on an improperly constructed RFC assessment and faulty evaluation of the record evidence.

CONCLUSION

For the foregoing reasons, I respectfully recommend that Plaintiff's motion be GRANTED, that the Commissioner's motion be DENIED, and that this case be remanded for further proceedings consistent with this Report and Recommendation.

Notice

The parties shall have fourteen days from the service of this Report and Recommendation to file written objections to the Report and Recommendation, 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 only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).

If any party files written objections to this Report and Recommendation, the opposing party may respond to the 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 Ronnie Abrams 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 Abrams. 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).