Opinion
23-CV-00818 (PGG)(SN)
12-13-2023
JOHN WALSH, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
HONORABLE PAUL G. GARDEPHE, JUDGE.
REPORT AND RECOMMENDATION
SARAH NETBURN, United States Magistrate Judge.
John Walsh (the “Plaintiff') seeks judicial review of the determination of the Commissioner of Social Security (the “Commissioner”) that he was not entitled to Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. See 42 U.S.C. § 405(g). I recommend that the Plaintiff s motion be denied.
BACKGROUND
I. Administrative Proceedings
Plaintiff applied for DIB on March 1, 2021, alleging disability beginning on January 1, 2013, as a result of “multiple orthopedic injuries, including cervical and lumbar- disc derangements, right shoulder derangement, right knee and ankle arthritis, left ankle derangement, and obstructive sleep apnea, and anxiety and post-traumatic stress disorder.” ECF No. 10, Pl. Br., at 3 (“Pl. Br.”). Additionally, Plaintiff alleged “functional limitations related to sinusitis and GERD acquired from his work at the World Trade Center on September 11, 2001.” Id.
Plaintiff's application was denied on June 2, 2021, and again upon reconsideration on October 27, 2021. ECF No. 9, Administrative Record (“R.”) 8. Plaintiff requested a hearing before an administrative law judge (“ALJ”) to review his case and appeared remotely for a hearing before ALJ Vincent M. Cascio on February 10, 2022. Id. at 11. The ALJ denied the claim on March 1, 2022. Id. at 8-29. On November 30, 2022, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision final. Id. at 1-7.
II. Plaintiff's Federal Case
Plaintiff filed his complaint on January 31, 2023, seeking review of the ALJ's decision. See ECF No. 1, Complaint (“Compl.”). He requests that the Court reverse the ALJ's decision and remand to the Commissioner to award him DIB. Plaintiff argues that (1) there is no medical evidence to support the ALJ's residual functional capacity determination that Plaintiff can frequently use his arms for reaching above shoulder level, and (2) Plaintiff's “at will” sit or stand option permits discretion that is work preclusive. He also seeks a remand so that the Commissioner can find a disability freeze and recalculate his date last insured.
III. Factual Background
Plaintiff contests the ALJ's determination regarding his physical limitations. Therefore, the Court does not discuss medical evidence related to allegations of mental impairment or physical limitations not related to Plaintiff's overhead reaching ability and need for a sit or stand option at work.
A. Non-Medical Evidence
At the hearing, Plaintiff testified that he was 48 years old and had obtained a bachelor's degree. R. 40-41. Plaintiff lives with his wife and six children. Id. at 41. From 2003 to 2013, Plaintiff worked as a firefighter. Id. at 42. He left the position in 2012 after injuring his right shoulder several times and undergoing surgery. Id. at 42-43. Based on the Plaintiff's earnings, the ALJ determined that Plaintiff did not engage in substantial gainful activity from January 1, 2013, the alleged onset date, through September 30, 2019, the date last insured under the Social Security Act (the “relevant period”). Id. at 23.
Vocational expert Joseph Young also testified. Id. at 47-48. Mr. Young testified that Plaintiff previously worked as a firefighter (DOT 373.364-010), which is a skilled position with a Specific Vocational Preparation (SVP) level of 6 performed by Plaintiff as heavy work. Id. at 49. The ALJ posed a hypothetical to Mr. Young of an individual with Plaintiff's age, education, and past work and the residual functional capacity (RFC) to perform sedentary work, who could frequently reach, including overhead reaching, and with certain other physical and environmental limitations. Mr. Young testified that that individual could not perform Plaintiff's prior work, but that there are other jobs existing in significant numbers in the national economy that that individual could perform with frequent reaching of the dominant arm, including Document Preparation Clerk (DOT 249.587-018), Addresser or Addressing Clerk (DOT 209.587-010), and Call Out Operator (DOT 237.367-014). Id. at 50-51.
B. Treating Medical Evidence Before January 1, 2013
1. Jo Hannafin, M.D.
Plaintiff received medical treatment from orthopedic surgeon Jo A. Hannafin from June 2008 through June 2012. On July 16, 2008, Dr. Hannafin performed a debridement of Plaintiff's right patellar tendon and right prepatellar bursa based on a diagnosis of chronic degeneration and tendinitis. R. 530-33. A magnetic resonance image (MRI) of Plaintiff's shoulder from February 2011 showed a mild subacromial/subdeltoid arthritis, a new mild degree partial thickness articular surface rotator cuff tear, distal supraspinatus tenson, and tears of the superior and anterior glenoid labrum. R. 535-36.
Although there are no surgical records, the evidence shows that Dr. Hannafin performed two surgeries on Plaintiff's right shoulder in March and December of 2011. R. 550. Plaintiff returned to Dr. Hannafin in August 2011 for a follow-up evaluation four months after his anterior labral repair. R. 538. At that time, Plaintiff was able to do knee pushups and full pushups with acute pain with rotation and extension of his back. Dr. Hannafin noted that Plaintiff had full forward flexion and full abduction of the shoulder. Examination showed that Plaintiff lacked five levels of internal rotation, had posterior pain with a cross body adduction load, and had tenderness over the infraspinatus and teres tendons. Dr. Hannafin noted, however, that Plaintiff had good resistive strength of the infraspinatus teres and supraspinatus and believed that Plaintiff likely strained his rotator cuff. Id. On June 22, 2012, Dr. Hannafin opined that Plaintiff was unable to return to full duty. Id.
2. Anne Kelly, M.D.
Plaintiff also received medical treatment from orthopedic surgeon Anne M. Kelly in May and September 2012. In May, Dr. Kelly noted that Plaintiff demonstrated full forward flexion but abduction to 90 degrees was bothersome and internal rotation was painful. R. 551. Dr. Kelly noted that it was surprising that a subacromial injection did not relieve Plaintiff's pain because Plaintiff's symptoms appeared to be all cuff symptoms and the glenohumeral joint was well maintained. Id. Dr. Kelly opined that Plaintiff may need more time to recover after the surgery and removed him out of therapy to conduct aerobic training on his own. Id.
In September, Dr. Kelly noted that Plaintiff continued to experience the same symptoms and found that Plaintiff had “no strength even below shoulder height and certainly no sustainable strength above shoulder height.” R. 549. Dr. Kelly believed that Plaintiff could not return to his full duties as a firefighter. Id.
C. Treating Medical Evidence During the Relevant Period
1. Anne Kelly, M.D.
Nearly two years after his last visit, Plaintiff returned to see Dr. Kelly on June 10, 2014. R. 547. Plaintiff reported shoulder pain while removing a pool cover, and as a result, fell on his arm. Id. Dr. Kelly noted that Plaintiff had pain at the top of forward flexion, consistent with a Neer impingement sign. Plaintiff felt pain with abduction beyond 90 degrees consistent with impingement, and pain with thumb-down resistive testing at the proximal lateral arm. Dr. Kelly found only mildly positive results for O'Brien. About ten days later, Dr. Kelly reviewed the MRI results and found evidence of a small full thickness tear in the supraspinatus. R. 546. Plaintiff had mild cuff symptoms and had notable impingement signs. Dr. Kelly administered an injection, after which Plaintiff felt a relief in pain with forward flexion and supraspinatus resistive testing. Id.
On September 11, 2014, Dr. Kelly performed a revision anterior labral repair and subacromial bursectomy of the right shoulder. R. 360.
2. Brian Reade, D.P.M.
Plaintiff received medical treatment from podiatrist Brian Reade from November 2015 through September 2019. On November 16, 2015, Dr. Reade reported that Plaintiff felt constant numbness in his right foot over a five-day period without any history of trauma or pain. R. 617. Dr. Reade prescribe steroids. Id.
On December 16, 2015, Electromyography (EMG) and nerve conduction (NCV) testing showed chronic right L5 radiculopathy and no evidence of right tarsal syndrome. R. 704-5. That same day, Dr. Reade noted a cyst on Plaintiff's right foot and numbness at the second toe. R. 612. Dr. Reade diagnosed Plaintiff with right foot pain, lumbar radiculopathy, and tarsal tunnel syndrome. Id. at 613. An aspiration of the ganglion cyst was performed. Id. Dr. Reade further recommended Plaintiff see Dr. Nicholas Renaldo, a back specialist, for a follow-up.
Nearly a year later, Mr. Walsh saw Dr. Reade with complaints of a painful cyst on his right foot and ankle. R. at 609. Despite the cyst aspiration in December of 2015, the cyst returned bigger and more painful. Plaintiff experienced pain with pressure on the foot. Dr. Reade discussed Plaintiff's options, which included aspiration or surgical excision. Id. at 610. Plaintiff reported that his busy schedule with work and coaching made aspiration preferable, and so the cyst aspiration was performed. Id. Dr. Reade aspirated the cyst again on January 24, 2017, and May 16, 2017. Id. at 603-10. Dr. Reade diagnosed Plaintiff with a ganglion cyst and right foot pain on May 30, 2017, and recommended surgical treatment. R. at 325. On June 9, 2017, Dr. Reade excised the ganglion cyst of the right ankle and repaired the right anterior talofibular ligament (ATFL). Id. at 362-3. On August 22, 2017, Plaintiff reported to Dr. Reade that he felt well at “100%.” Id. at 586. Dr. Reade found that the right ankle was stable and there were no signs of a recurrent cyst.
Plaintiff returned to Dr. Reade on June 11, 2019, with complaints of left ankle pain due to an injury while playing basketball. R. at 583. From June through September 10, 2019, Plaintiff repeatedly visited Dr. Reade with complaints of pain. X-rays revealed fibular fracture in the left ankle. R. at 582, 710, 579. An MRI “revealed a transverse fracture of the distal fibula, an osteochondral injury to the lateral aspect of the talar dome, sprains of the anterior tibiofibular, anterior talofibular, calcaneofibular, and deltoid ligaments, a remote intra-articular fracture of the second metatarsal base, scattered degenerative changes of the hindfoot and midfoot, edema and effacement of the fat within the sinus tarsi.” Pl. Br. at 10. On September 10, 2019, Dr. Reade noted that Plaintiff's pain was around a 3 out of 10 when sedentary or minimally active and increased to an 8 out of 10 when active since April. R. at 574. Dr. Reade recommended Plaintiff to continue to wear a brace and take cortisone shots for pain and discussed various forms of therapy. Id.
3. Nicholas Renaldo, M.D.
Plaintiff treated with Dr. Renaldo on December 28, 2015, the only time during the relevant period. R. 665-67. Dr. Renaldo noted that Plaintiff complained of right foot numbness and denied back or leg pain. Id. at 665. X-rays demonstrated L3-4 spondylosis and slight anterlosthesis, and an EMG revealed right L5 radiculopathy. Id. at 666. Dr. Renaldo diagnosed Plaintiff with lumbar radiculopathy and right L5 radiculopathy and L3-4 spondylosis. Id. at 66667. He ordered physical therapy. Id. at 667.
D. Treating Medical Evidence After September 30, 2019
1. Brian Reade, D.P.M.
Plaintiff continued to treat with Dr. Reade for his left foot pain. After diagnosing Plaintiff with left ankle effusion, left ankle pain, and osteochondral lesion of the talar dome, Dr. Reade performed a left ankle arthroscopy and synovectomy on December 13, 2019. R. 355-65. In January and February of 2020, Plaintiff visited Dr. Reade with reports that his pain level was reduced and that he was feeling better. Id. 564, 561.
2. Kevin H. Weiner, M.D.
Plaintiff began treatment with Dr. Kevin Weiner, a pain management specialist, in March 2021. At that time, Dr. Weiner noted that Plaintiff could not sit or stand for prolonged periods of time. R. 380-87. Upon physical examination, Dr. Weiner concluded that Plaintiff had a limited range of motion of the cervical spine, multiple scars with atrophy of the right shoulder girdle, and limited flexion of the right shoulder. Id. Dr. Weiner observed increased pain with scapular elevation and a positive Tinel's sign on the right side. Further, Dr. Weiner saw a limited range of motion of the left ankle and lowered motor strength for dorsiflexion and plantar flexion. Dr. Weiner indicated that Plaintiff was to see Dr. Baynes for possible surgical intervention. An x-ray of Plaintiff's cervical spine from March 2021 showed evidence of osteoarthritis, and an x-ray of Plaintiff's left shoulder from March 2021 revealed an edema within a small thickness tear, tendinitis, and a truncated appearance of the acromion process. R. 379, 373.
In March 2021, Dr. Weiner reviewed MRIs of Plaintiff's lumbar and cervical spine. An MRI of the lumbar spine showed multi-level degenerative disc disease, osteoarthritis, mild spondylolistheses, disc bulging, and bilateral neural foraminal narrowing of L3-L4. R. 377-78. An MRI of Plaintiff's cervical spine revealed disc bulging, disc herniation, deformity of the thecal sac at the C6-7 level, and mild bilateral foraminal stenosis. Id. at 375. An MRI of Plaintiff's right shoulder showed low grade partial tears of the distal supraspinatus and infraspinatus tendons, subacromial and subdeltoid bursitis, and degenerative fraying/tear of the posterior labrum. Id. at 371-72. After physical examination, Dr. Weiner found that Plaintiff had a limited range of motion of the cervical spine, lumbar spine, left ankle, and right shoulder. Id. at 369.
In August and September 2021, Plaintiff saw Dr. Weiner with complaints of neck and back pain causing difficulty performing daily living activities. R. 746, 748. Upon physical examination, Dr. Weiner again noted that Plaintiff had a limited range of motion of the cervical spine, right shoulder, and lumbar spine. Dr. Weiner assessed that Plaintiff wass “totally disabled and unable to return to work.” Id. In October and December 2021, Plaintiff again saw Dr. Weiner for cervical and lumbar spine pain as well as bilateral shoulder pain. R. 742, 744. Dr. Weiner further noted a limited range of motion of the lumbar spine, right shoulder, and left ankle. Id.
3. Wasik Ashraf, M.D.
Plaintiff also treated with orthopedist Wasik Ashraf in March 2021 for left shoulder pain. Dr. Ashraf noted that Plaintiff had intermittent pain and aching, with symptoms aggravated by daily activities and sleeping. R. 621. Upon physical examination, Plaintiff showed positive signs for the SLAP test, Speed's test, Hawkins, and Neer's test. Id. Plaintiff's shoulders were normal in strength tests, though he had a limited range of motion in both the right and left shoulders, with pain noted in the left shoulder. Id.
4. Nicholas Renaldo, M.D.
Plaintiff treated with Dr. Renaldo from April 2021 through January 2022. Plaintiff complained of persistent neck and low back pain, and occasional pain in the left leg with numbness and tingling. R. 661. Plaintiff experienced worse pain with bending and standing but improved with rest. Dr. Renaldo reviewed Plaintiff's lumbar and cervical MRIs and concluded that Plaintiff had left lumbar radiculopathy and spondylolisthesis at ¶ 3-4. Id. Dr. Renaldo provided Plaintiff with a back corset and recommended physical therapy.
5. Vishal Rekhala, M.D.
Plaintiff treated with pain management specialist Vishal P. Rekhala from July through October 2021. On July 15, 2021, Plaintiff sought treatment for chronic bilateral lower back pain that started years prior. R. 674. Plaintiff reported that his back pain was nearly constant and was aggravated with bending, lifting, standing, or walking for too long. Based on MRI imaging, Dr. Rekhala noted lumbar facet syndrome, lumbar spondylosis, chronic bilateral low back pain without sciatica, and lumbar radiculopathy. Dr. Rekhala recommended cervical or lumbar medical branch block injections for the pain. Id.
Plaintiff received medial branch injections to his spine in August 2021 and reported improvement in lower back pain. R. 671. Plaintiff continued to have pain bending backwards or straightening from a bent position or standing too long, and Dr. Rekhala recommended additional medial branch injections. Id. at 673. While Plaintiff reported an 80% improvement following the injections, Plaintiff had a gradual return of symptoms in October 2021. R. 668.
E. Consultative Medical Opinion Evidence
1. New York City Fire Department Medical Board
On October 3, 2012, the New York City Fire Department Medical Board determined that Plaintiff was permanently disabled due a chronic degenerative joint disease affecting his right shoulder, precluding full firefighting duties. The Board recommended Plaintiff be granted ordinary disability retirement for his right shoulder and “may engage in suitable and gainful occupation.” R. 707-08.
2. Kevin H. Weiner, M.D.
Over two years after Plaintiff's date last insured, Dr. Weiner completed a medical opinion questionnaire in which he opined that Plaintiff could sit, stand and/or walk for less than two hours in an eight-hour workday, and occasionally reach in all directions with both arms. R. 735. Dr. Weiner indicated that Plaintiff could lift and/or carry more than five pounds, but less than ten pounds, up to one-third of an eight-hour workday. Id. Dr. Weiner stated that Plaintiff would need to lie down, have a sit or stand option available, and take frequent breaks during the workday. Id. He predicted that Plaintiff would need two or more sick days off each month. Id.
Dr. Weiner also submitted a narrative statement. Id. 735-39. Dr. Weiner broadly wrote that “[b]ased on the history obtained from the patient, review of the medical records, physical exam, patient is totally disabled from all forms of employment including sedentary work.” Id. at 739. Dr. Weiner noted that Plaintiff has persistent discomfort in his back and could not sit for longer than 10 to 15 minutes. Dr. Weiner reported that Plaintiff drove very short distances because of persistent pain and dropped objects due to weakness in his hands. In addition to back pain, Dr. Weiner noted that Plaintiff had severe pain and weakness in his shoulder region, making him a candidate for left shoulder surgery. Id.
The opinion statement is dated January 11, 2021. Although it purports to cover January 1, 2013, to the present, it makes no retrospective assessment.
3. Jason Baynes, M.D.
On February 9, 2022, Dr. Baynes also completed a medical opinion questionnaire. Like Dr. Weiner, Dr. Baynes opined that Plaintiff could sit for less than two hours and stand and/or walk for less than two hours in an eight-hour workday. R. 752-53. Dr. Baynes indicated that Plaintiff could occasionally reach forward with both arms but never reach overhead with either arm. Id. at 752. Dr. Baynes similarly noted that Plaintiff would need to lie down, have a sit or stand option available, and take frequent breaks during the workday. Dr. Baynes indicated that Plaintiff suffered pain which prevents him from performing eight hours of work. Id. Dr. Baynes's medical opinion was based on an MRI dated April 6, 2021, and stated that “due to [Plaintiff's] chronic injuries to his bilateral shoulders and bilateral [a]nkles, [Plaintiff] clearly cannot work.” Id.
Like Dr. Weiner's opinion statement, Dr. Baynes's report purports to cover the period from January 1, 2013, to the present, thought makes no retrospective findings.
IV. The ALJ's Decision
On March 1, 2022, the ALJ denied Plaintiff's application for DIB. R. 8-29. The ALJ determined that Plaintiff was not under a disability at any time from January 1, 2013, the alleged onset date, through September 30, 2019, the date last insured under the Social Security Act. Id. at 23. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity from January 1, 2013, through September 30, 2019. Id. at 14.
At step two, the ALJ found that Plaintiff had the following severe impairments that significantly limit Plaintiff's ability to perform basic work activities: “status post right ankle excision of ganglion cyst and stabilization; status post left ankle arthroscopic synovectomy; status post right shoulder anterior labrum arthroscopic repair; degenerative joint disease of right shoulder; cervical and lumbar spine degenerative disc disease; left foot degenerative joint disease and history of fracture; chronic sinusitis; and sleep apnea.” Id. at 14.
At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in the applicable regulations. Id.; see 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. The ALJ considered and rejected listings 1.15 in relation to Plaintiff's disorder of the skeletal spine resulting in compromised nerve roots, 1.16 for lumbar spinal stenosis resulting in compromise of the cauda equina, and 1.18 for abnormality of major joints in any extremity. Id. at 15-16. As relevant here, the ALJ found “no documented medical need for a one-handed, handheld assistive device that requires the use of the upper extremity or a wheeled and seated mobility device involving the use of one hand; and.no medical need for a walker, bilateral canes, or bilateral crutches or a wheeled and seated mobility device involving the use of both hands.” Id.
The ALJ next found that Plaintiff had the RFC to perform sedentary work, as defined in 20 C.F.R. § 404.1567(a), except that he “can occasionally climb ramps and stairs; can never climb ropes, ladders or scaffolds; can occasionally stoop, crouch and kneel; [can] never crawl;” cannot have exposure to unprotected heights, hazardous machinery, and exposure to respiratory irritants; “can frequently reach, including overhead reaching with the right upper extremity;” and “is allowed to alternate sitting and standing at will provided . . . [he] is not off task more than five percent of the workday.” Id. at 16.
The ALJ based his conclusion on Plaintiff's testimony that he can walk for a half hour before needing to rest, sit for half hour before changing position, stand in place for 20 to 25 minutes, and lift and carry 20 to 25 pounds. Id. The ALJ also considered Plaintiff's testimony that he can use the stairs slowly, write and make a fist, shower and dress, drive his kids, shop as needed, and wash dishes. Id. Considering the medical evidence presented, the ALJ determined that the intensity, persistence, and limiting effects of Plaintiff's symptoms “are not entirely consistent with . . . the evidence in the record.” Id. at 15-16.
The ALJ acknowledged that Plaintiff's condition deteriorated after September 30, 2019, but concluded that most of the treatment for the allegedly disabling impairments took place after the date last insured and the record did not contain any “non-conclusory opinions, supported by clinical or laboratory evidence, from treating or examining physicians indicating that the claimant was disabled prior to the date last insured.” Id. at 21. The ALJ found that the evidence establishes that Plaintiff had the capacity to adequately perform many basic activities associated with work and a wide range of sedentary work during the time insured. Id. at 20.
At step four, the ALJ determined that Plaintiff was unable to perform any past relevant work as a firefighter. Id. at 21. The ALJ found that the demands of Plaintiff's past work as a firefighter exceed the RFC. Id.
At step five, the ALJ determined that through the date last insured, there were a significant number of jobs in the national economy that the Plaintiff could have performed based on his age, education, work experience, and RFC. Id. at 22. Plaintiff was 45 years old on the date last insured and had at least a high school education. Id. The ALJ based his conclusion on the testimony of an impartial vocational expert, who stated that based on the Plaintiff's characteristics, “the individual would have been able to perform the requirements of representative occupations such as a document preparer (DOT# 249.587-018, unskilled (SVP-2), sedentary exertion, 20,000 jobs in the national economy); an addresser (DOT# 209.587-010, unskilled (SVP-2), sedentary exertion, 23,000 jobs in the national economy); and a call out operator (DOT# 237.367-014, unskilled (SVP-2) sedentary exertion, 24,000 jobs in the national economy).” Id. Therefore, the ALJ found that Plaintiff could make a successful adjustment to other work and was not disabled pursuant to the Social Security Act at any time from January 1, 2013, through September 30, 2019.
DISCUSSION
I. Standard of Review
“It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). In reviewing a decision of the Commissioner, a court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). An ALJ's determination may be set aside only if it is based upon legal error, or it is not supported by substantial evidence. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998)).
“Substantial evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The Commissioner's findings as to any fact supported by substantial evidence are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995); see also Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to support either position, the determination is one to be made by the factfinder.”). Therefore, if sufficient evidence supports the ALJ's final decision, the Court must grant judgment in favor of the Commissioner, even if substantial evidence also supports the plaintiff's position. See Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (“The substantial evidence standard means once an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to conclude otherwise.” (emphasis in original) (citations and internal quotation marks omitted)). Although deferential to an ALJ's findings, a disability determination must be reversed or remanded if it contains legal error or is not supported by “substantial evidence.” See Rosa, 168 F.3d at 77.
II. Definition of Disability
A claimant is disabled under the Act if he demonstrates an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A). A “physical or mental impairment” is defined as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). A claimant will be found to be disabled only if his “impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . .” Id. § 423(d)(2)(A).
An ALJ must proceed through a five-step process to make a disability determination. See 20 C.F.R. § 404.1520. The steps are followed in order; if it is determined that the claimant is or is not disabled at a step of the evaluation process, the evaluation will not progress to the next step. See id. The Court of Appeals has described the process as follows:
First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a “severe impairment” that significantly limits her physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1....Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (quoting Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999)).
A claimant bears the burden of proof as to steps one, two, three, and four; the Commissioner bears the burden as to step five. Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013).
III. Calculation of Date Last Insured
In his reply brief, Plaintiff argues for the first time that the Court should remand his case, at a minimum, for recalculation of his date last insured based on a “disability freeze.” Although arguments raised for the first time in a reply brief may be deemed waived, the Court requested supplemental briefing from the Commissioner on this issue, which was filed on December 1, 2023. ECF No. 15. Plaintiff's argument is without merit.
Because people who suffer from a disability may later improve to the point that they no longer are disabled within the meaning of the Act and are again able to engage in substantial gainful activity, the statute defines a “period of disability” as the basis for the award of disability. 42 U.S.C. § 416(i)(2). A period of disability begins on the day that a disability begins, so long as the individual is fully insured at that time. 42 U.S.C. §§ 416(i)(2)(C), 416(i)(3)(A); 20 C.F.R. § 404.131. To have disability insured status during any quarter, an individual must be fully insured in that quarter and have at least 20 quarters of coverage in the last 40-quarter period ending with that quarter. 20 C.F.R. § 404.130(b). See generally Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1459-60 (9th Cir. 1995).
Establishment of a period of disability also allows an individual to exclude that time from the number of years for which quarters of coverage are required, to make it easier for an individual to satisfy the insured status requirement for a second period of disability at a later time. This is referred to as a “disability freeze.” See Program Operation Manual DI 25501.240(A)(1). To qualify for a disability freeze, a claimant must meet the SSA medical and non-medical criteria for disability during the disability freeze period. Id.
Plaintiff argues that the evidence establishes that he was disabled, at a minimum, between January 1, 2013, and December 31, 2014. He contends that a finding of disability during this period would entitle him to a disability freeze, which would, in turn, extend his date last insured from September 30, 2019, through 2020. Plaintiff relies on (1) Dr. Kelly's September 11, 2012 observation that Plaintiff “had ‘no strength' for movement below or above the shoulder on the right side,” (2) Dr. Kelly's mention of a failure of surgical anchors on September 11, 2014, and (3) findings from Dr. Kelly and Dr. Hannafin that Plaintiff's right shoulder lacked abduction beyond 90 degrees. Id. Plaintiff admits that there are no post-surgical follow-up treatment records for his right shoulder after 2014. Id. at 3.
First, Plaintiff has failed to establish legal error or the absence of substantial evidence for the ALJ's finding that Plaintiff was not disabled during this limited or closed period. Having failed to meet the medical requirements to be found disabled, he is not entitled to a disability freeze.
Second, even if he could meet those medical requirements, he does not satisfy the nonmedical requirements. An application for disability benefits must be filed either at any time while the period of disability continues or within 12 months of the end of the period of disability. 20 C.F.R. § 404.320(b)(3). Plaintiff argues, in the alternative, that his first period of disability ended on December 31, 2014, but he filed his application for benefits on March 31, 2021, well beyond the 12-month period. See David D. v. Saul, No. 18-cv-8765 (KS), 2019 WL 8631482, at *2 (C.D. Cal. Dec. 16, 2019) (“a claimant only qualifies for a freeze if he files an application for benefits no later than 12 months after the end of the period of disability”). Accordingly, he is not entitled to a disability freeze for the alternative reason that his application for that relief is time-barred.
IV. The ALJ's RFC Determination
“The RFC is ‘the most [a person] can still do despite [their] limitations.'” Latifu v. Comm'r of Soc. Sec., No. 21-cv-884 (KMK)(JCM), 2022 WL 2532193, at *18 (May 4, 2022), report & rec. adopted 2022 WL 3044582 (S.D.N.Y. Aug. 2, 2022) (quoting 20 C.F.R. § 404.1545(a)(1) (2012)). “The claimant's RFC is determined based on all of the relevant medical and other evidence in the record, including the claimant's credible testimony, objective medical evidence, and medical opinions from treating and consulting sources.” Id. (quoting Rivera v. Comm'r of Soc. Sec., 368 F.Supp.3d 626, 640 (S.D.N.Y. 2019)).
A. Overhead Reaching
Plaintiff argues that there is no medical evidence to support the ALJ's RFC assessment that Plaintiff can frequently reach his arms overhead. The plaintiff bears the burden of proving a more restrictive RFC. Snyder v. Comm'r of Soc. Sec., No. 22-cv-277, 2023 WL 1943108, at *3 (2nd Cir. Feb. 13, 2023) (citing Estrella v. Berryhill, 925 F.3d 90, 94 (2d Cir. 2019)). “A lack of supporting evidence on a matter for which the claimant bears the burden of proof, particularly when coupled with other inconsistent record evidence, can constitute substantial evidence supporting a denial of benefits.” Barry v. Colvin, 606 Fed.Appx. 621, 622 (2d Cir. 2015) (citing Talavera v. Astrue, 697 F.3d 145, 153 (2d Cir. 2012)).
1. Medical Evidence
Substantial evidence in the record supports the ALJ's findings that Plaintiff could frequently reach overhead during the relevant period. The only medical evidence concerning Plaintiff's right shoulder during the relevant time period is limited to June and September of 2014. As the ALJ noted, “although the claimant has received treatment for the allegedly disabling impairments, much of the treatment and impairments are after the date last insured” R. 21. After Plaintiff reported right shoulder pain to Dr. Kelly on June 14, 2014, he received injection for the pain and underwent a revision surgery. There are no follow-up visits or examinations to support Plaintiff's argument that he did not have the capacity to reach overhead during the entire relevant period.
While the ALJ did not cite every exhibit or piece of medical evidence in support of the RFC, the ALJ analyzed the medical record during the relevant time period in detail, including the reported objective range of motion measures. R. 17-20; see Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (“When . . . evidence of record permits us to glean the rationale of an ALJ's decision, we do not require that he have mentioned every item of testimony presented to him or have explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.”). The ALJ supported his conclusion that Plaintiff was not disabled during the relevant period on the following grounds: (1) Plaintiff described daily activities “which are not limited to the extent one would expect, given the complaints of disabling symptoms and limitations;” (2) most of the treatment Plaintiff received for the allegedly disabling impairments occurred after the date last insured; and (3) the record did not contain any non-conclusory opinions from treating or examining physicians stating that the Plaintiff was disabled before the date last insured. Id. at 21.
The ALJ recounted evidence before and during the relevant period. Specifically, the ALJ noted the following from before January 1, 2013: (1) an MRI of Plaintiff's shoulder from May 2008 showing a small effusion, small popliteal cyst, and meniscal degeneration; (2) records from a July 2008 debridement of the right patella tendon and right prepatellar bursa at the Hospital for Special Surgery; (3) records from an anterior labral repair of the right shoulder from March 2011; (4) an MRI of the right shoulder from September 2011 showing an extensive complex tear/labral degeneration rotator cuff tear and tear of the superior glenoid labrum; (5) records from 2011 in which Dr. Hannafin noted that Plaintiff had been doing pushups and felt acute posterior pain, with an impression that Plaintiff likely had a strain or load to the posterior rotator cuff and capsule; and (6) records from an acromioplasty of the right shoulder in December 2011.
The ALJ also reviewed the limited medical evidence available during the relevant time related to Plaintiff's right shoulder: (1) June 2014 notes from Dr. Kelly in which Plaintiff complained of right shoulder pain after removing a pool cover and in which Dr. Kelly noted a positive Neer impingement sign with pain at the top of forward flexion, pain with abduction beyond 90 degrees, only mildly positive O'Brien results, and some minimal discomfort with infraspinatus resistive testing; (2) June 2014 records documenting Plaintiff's mild cuff symptoms and notable impingement sign with a record of an injection to the right shoulder that provided relief; and (3) September 2014 medical records for a right shoulder revision anterior labral repair and subacromial bursectomy. R. 16-17.
Based on the medical records and Plaintiff's testimony, the ALJ found that Plaintiff can lift and carry 20 to 25 pounds, pick up a coin or a pencil from a table with his hands, write, make a fist, shower, dress, drive his kids to sporting games, shop as needed, and wash dishes after meals. R. 16. The ALJ stated that Plaintiff experienced pain using his right arm, so he used his left arm to reach. Id. The ALJ concluded that the Plaintiff's subjective testimony as to the pain he experienced was unpersuasive. R. 16-17.
Finally, courts have concluded that overhead reaching is not generally a feature of sedentary work. See Jamil D. v. Kijakazi, No. 21-cv-464 (GMH), 2022 WL 910334, at *19 (D.D.C. March 29, 2022) (“[S]edentary work does not require overhead reaching.”) (gathering cases); cf. Gaviria v. Berryhill, No. 17-cv-6502 (KHP), 2019 WL 926112, at *6 (S.D.N.Y. Feb. 26, 2019) (noting with approval the ALJ's finding that “even if Plaintiff were limited to an RFC of sedentary work with no overhead reaching, there remained a number of jobs in the national economy that Plaintiff could perform”); Sova v. Colvin, No. 7:13-cv-0570 (TJM), 2014 WL 4744675, at *8 (N.D.N.Y. Sept. 23, 2014) (“[In] sedentary work . . . reaching overhead is rare.”). These cases lend further support to the ALJ's RFC determination.
The ALJ appropriately considered Plaintiff's limitations resulting from his shoulder impairment in developing the RFC by limiting the amount he could lift or carry and noting Plaintiff's ability to frequently reach overhead with the right upper extremity. R. 49; Velez v. Comm'r of Soc. Sec., No. 16-cv-10036 (ER)(HBP), 2017 WL 6761925, at *19 (S.D.N.Y. Dec. 12, 2017) (holding that the ALJ properly took plaintiff's reduced strength and range of motion in his shoulder into account in limiting him to light work with additional restrictions). Accordingly, substantial evidence supports the ALJ's finding.
2. Medical Opinion Evidence
Because Plaintiff's DIB application was filed after March 27, 2017, revised regulations guided the ALJ's analysis. See 20 C.F.R. § 404.1520c. When considering medical opinions and prior administrative medical findings under these new regulations, the ALJ is not required to “defer or give any specific evidentiary weight, including controlling weight” to any of those opinions. Id. § 404.1520c(a). Instead, the ALJ evaluates the persuasiveness of an opinion provided by medical sources based on the opinion's “supportability,” its “consistency,” the “relationship” of the medical source and the claimant, the source's “specialization,” and “other factors that tend to support or contradict a medical opinion or prior administrative medical finding.” Id. § 404.1520c(1)-(5).
The new regulations also differ from the previous rules in that the definition of “acceptable medical sources” is expanded. 20 C.F.R. § 404.1502(a).
The most important factors are supportability and consistency; “the more relevant the objective medical evidence and supporting explanations presented by a medical source are to support” their opinion, and the more consistent a medical opinion or prior administrative medical finding is with “the evidence from other medical sources and nonmedical sources” in the claim, the more persuasive the opinion or finding. Id. § 404.1520c(b)(2), (c)(1), (c)(2).
Dr. Weiner opined that Plaintiff is totally disabled from all forms of employment, including sedentary work. The ALJ found his opinion not persuasive because it was dated January 11, 2022, years after the relevant period, and was not retrospective. Although the ALJ did not use the words “supportability” or “consistency” in his evaluation, it is clear that the ALJ concluded that Dr. Weiner's opinion could not support a finding of disability during the relevant period.
In any event, any error due to not evaluating the opinion under this rubric is harmless. Dr. Weiner's opinion did not cite to records from the relevant period. Rather, the opinion appears to be based primarily on a contemporaneous evaluation of Plaintiff's condition, which continued to deteriorate after the last insured date. See Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (remand is unnecessary “[w]here application of the correct legal standard could lead to only one conclusion”).
While the ALJ did not address Dr. Baynes's opinion, it suffers from the same fatal deficiency because it was issued on February 9, 2022, and is not retroactive. See Walzer v. Chater, No. 93-cv-6240 (LAK), 1995 WL 791963, at *9 (S.D.N.Y. Sept. 26, 1995) (reasoning that failure to discuss treating physician's report was harmless error because it would not have changed the outcome of the ALJ's decision); Franco v. Saul, No. 16-cv-5695 (LMS), 2020 WL 4284157, at *16 (S.D.N.Y. July 27, 2020).
Plaintiff, moreover, has not challenged the ALJ's failure to consider Dr. Weiner's and Dr. Baynes's opinions for supportability and consistency. See Shineski 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.” (collecting cases)).
Finally, the ALJ appropriately declined to give any weight to Dr. Weiner's conclusion that Plaintiff was “totally disabled” and unable to return to work because a determination that a claimant is “disabled” or “unable to work” is “reserved to the Commissioner.” 20 C.F.R. § 404.1527 (d)(1); see also Distefano v. Berryhill, 363 F.Supp.3d 453, 473 (S.D.N.Y. 2019) (“SSA regulations specify that the ultimate conclusion of whether an individual is ‘disabled' or ‘unable to work' is reserved to the Commissioner and conclusory opinions by others are entitled to no particular weight.”) (internal quotations omitted).
Thus, the medical and opinion evidence does not present substantial evidence to support a more restrictive RFC, and I recommend that the Court affirm the Commissioner's final decision.
B. Sit/Stand Option
The Plaintiff also argues that the “at will” sit/stand option is work preclusive because it would necessarily allow the Plaintiff to be off task for more than 5% of the workday. Plaintiff contends that the ALJ's RFC contains an “internal conflict that cannot be reconciled” because an individual permitted to sit and stand at will controls as much sitting or standing as needed at their own discretion, and therefore could be off task more than 5% of the day.
The vocational expert testified that a sit or stand option at a frequency greater than every 30 minutes would be work preclusive. R. 53-54. The vocational expert also testified, however, that a person could work at a sedentary job with an at-will sit/stand option so long as the person remained “on task.” Id. at 53. The vocational expert confirmed that sedentary jobs existed in the national economy that could accommodate an at-will sit/stand option so long as the employee was not off task for more than 5% of the day. Because the ALJ assessed the Plaintiff's RFC to allow being off task for up to 5% of the day, the Commissioner has met its burden at step five.
Plaintiff relies on a 1984 Court of Appeals' decision to argue that a sit/stand option “may not be within the concept of sedentary work.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). More recently, however, the Court of Appeals has indicated that “the category of sedentary jobs is large, and the general definition allows of exceptions. Accordingly, ‘[i]n more complex cases' a vocational expert may be consulted to determine whether there is other work in the national economy that an individual with the ability to do less than the full range of sedentary work may perform.” McIntyre v. Colvin, 758 F.3d 146, 152 (2d Cir. 2014) (affirming the ALJ's denial of disability benefits based on the vocational expert's credible testimony that there are enough sedentary jobs that can be performed by a person who requires to alternate from a sitting to a standing position every 15 to 30 minutes).
With the respect to the need to alternate the sitting of sedentary work by standing, Social Security Ruling 96-9p recognizes that any sit/stand option made available in an RFC must also account for the frequency of the individual's need so as to ensure that the occupational base for sedentary work is not “eroded.” The ALJ did just this. He set an RFC that limited the frequency of any sit/stand alternating to preclude being off task more than 5% of the day. The vocational expert then testified that jobs existed in the national economy that met that RFC. The Commissioner, thus, met its burden at step 5. See Ponzini v. Commissioner of Social Security, No. 20-cv-2522 (LJL), 2021 WL 4441512, at *9 (S.D.N.Y. Sept. 28, 2021) (substantial evidence supports the ALJ's conclusion that the petitioner could perform sedentary work “except the claimant needed a sit/stand option at will as long as doing so does not take the claimant off task more than 5% of the workday”).
Thus, because substantial evidence supports the ALJ's finding that jobs existed in the national economy that a person with Plaintiff's limitations could perform during the relevant period, and there is no legal error with the ALJ's conclusion, the Commissioner's final decision should be affirmed.
CONCLUSION
I recommend that the Plaintiff's motion for judgment on the pleadings be DENIED.
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. 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 Paul G. Gardephe 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 Gardephe. 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).