Opinion
19 Civ. 10631 (KMK) (AEK)
01-26-2022
DEYANIRA BRITO, Plaintiff, v. KILOLO KIJAKAZI, [1] ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
TO: THE HONORABLE KENNETH M. KARAS, U.S.D.J.
This case was originally referred to Magistrate Judge Lisa Margaret Smith on November 20, 2019. ECF No. 7. The case was reassigned to the undersigned on October 19, 2020.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE, UNITED STATES MAGISTRATE JUDGE
Plaintiff Deyanira Brito brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security (the “Commissioner”), which denied her application for benefits under the Social Security Act (the “Act”). ECF No. 2. Currently pending before the Court is the Commissioner's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ECF Nos. 16-17. Plaintiff did not submit any opposition to the Commissioner's motion or any cross-motion for judgment on the pleadings, despite being given multiple opportunities by the Court to do so. See ECF Nos. 19, 20. Nevertheless, for the reasons that follow, I respectfully recommend that the Commissioner's motion (ECF No. 16) be DENIED, that judgment be entered in favor of Plaintiff, and that the case be remanded to the Commissioner for further proceedings. 1
BACKGROUND
I. Procedural History
In March 2016, Plaintiff filed an application for benefits pursuant to the Act, alleging March 9, 2015 as the onset date of her disability. Administrative Record (“AR”) 23, 139-40. Plaintiff claimed she was disabled due to neck pain (cervicalgia) and joint pain in her lower leg. AR 49-50. Following the denial of Plaintiff's claim by the Social Security Administration (the “SSA”) on October 24, 2016, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). AR 49-55, 88-90. An administrative hearing was held on September 26, 2018. AR 34-48. Plaintiff appeared in person and testified at the hearing with the assistance of a Spanish interpreter; she also was accompanied at the hearing by a non-attorney representative. Id. A vocational expert was available for testimony by telephone, but her testimony was deemed unnecessary by the ALJ. Id.
Citations to “AR” refer to the certified copy of the administrative record filed by the Commissioner. ECF No. 12.
ALJ Mark Solomon issued a decision on November 29, 2018, finding that Plaintiff was not disabled within the meaning of the Act. AR 23-30. Plaintiff subsequently filed a request for review of the ALJ's decision with the SSA's Appeals Council, which was denied on September 17, 2019. AR 1-8, 138. That made the ALJ's November 29, 2018 decision the final decision of the Commissioner. The instant lawsuit, seeking judicial review of the ALJ's decision, was filed on November 13, 2019. ECF No. 2.
II. Medical Evidence
The Commissioner has provided a summary of the medical evidence contained in the administrative record. See ECF No. 17 (“Def.'s Mem.”) at 2-9. Based on an independent and 2 thorough examination of the record, the Court finds that the Commissioner's summary of the contents of the medical evidence is accurate and largely comprehensive. Accordingly, the Court adopts the factual background as set forth by the Commissioner, and discusses the evidence in the record in more detail to the extent necessary to a determination of the issues in this case. See, e.g., Banks v. Comm'r of Soc. Sec., No. 19-cv-929 (AJN) (SDA), 2020 WL 2768800, at *2 (S.D.N.Y. Jan. 16, 2020), adopted by 2020 WL 2765686 (S.D.N.Y. May 27, 2020).
In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) and Local Rule 7.2 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, copies of this case and other cases that are unpublished or only available by electronic database shall be simultaneously mailed, along with this Report and Recommendation, to the address that has been used previously in this matter to send court documents to the pro se Plaintiff.
III. Agency Forms
a. SSA Function Report
On an SSA Function Report completed with the assistance of a case manager on March 25, 2016, Plaintiff reported that she lived in an apartment with her son, spent most of her time at home, and took medication that made her sleepy at times. AR 202. Plaintiff also stated that her doctor told her she needed to walk daily, and that she therefore would take daily walks of about 2-3 blocks. Id. As set forth in the report, Plaintiff indicated that her pain made it hard to sleep and made it difficult some days to dress, bathe, and care for her hair. AR 203. While Plaintiff reported that she was able to do some cooking, she required her son's help to cook, sweep, and mop. AR 204. Plaintiff reported that she was able to use public transportation and leave the house alone, but that her son needed to accompany her to carry bags when she went shopping. AR 205. 3
According to Plaintiff, her conditions affected her ability to lift, walk, climb stairs, squat, sit, see, bend, kneel, use her hands, stand, and reach. AR 207. She stated that she had “very bad pain all over her left side of the body, ” that her son often had to help her do things, and that her vision became blurry “often.” Id. Plaintiff was able to pay attention during the interview, and reported that she could follow written or spoken instructions, had no issues getting along with authority figures, and handled stress and changes in routine well. AR 207-08.
b. Activities of Daily Living
On an Activities of Daily Living form completed on October 11, 2016 with the assistance of a case worker, Plaintiff stated that her son helped her with her daily activities, chores, and going to the pharmacy and doctors' appointments. AR 172. When asked what she was able to do before the onset of her conditions that she could not do now, Plaintiff answered, “working full time/seasonal part time work” and “I was able to do chores, cleaning, walking to places, and takes [sic] care of my family.” Id. Plaintiff stated that the stiffness of her muscles and her neck and shoulder pain affected her ability to dress, bathe, and wash her own hair. Id. In addition, Plaintiff explained that her son prepared food for her “most of the time, ” because Plaintiff could not be “standing for long period [sic] of time to avoid dizziness.” AR 173. Plaintiff also noted that her son helped her with laundry and cleaning because she needed help moving furniture, lifting, and bending. AR 173-74.
Plaintiff stated that she went outside “twice a week only for medical [appointments] and/or mandatory welfare business related to [her] case, ” and that she did not go out alone due to the “risk of dizziness or fainting as a side effect of all my medication.” AR 174.
In the section of the form titled “Information About Your Abilities, ” Plaintiff stated that she was “unable to do lifting of any kind, ” could not stand for more than 15 minutes, was only 4 able to walk two blocks without shortness of breath or fatigue, and could not sit for more than an hour without experiencing shortness of breath, dizziness, and muscle spasms. Id. Plaintiff also asserted that she was unable to kneel or squat, but could reach “not too high or too low” and use her hands, as well as see, hear, and talk. AR 176-77. Plaintiff reported that she had no problems paying attention, following instructions, remembering things, or getting along with authority figures, but she could not finish what she started because she falls asleep easily, and also gets anxious. AR 177-78.
In the section titled “Questions About Pain, ” Plaintiff stated she feels a “heavy pressure” in her neck, shoulders, and left leg that radiates to her lower back, left leg, and ribs, and that the pain now also affects her lower back and right arm. AR 179. Plaintiff stated that she feels this pain every day and that it is brought on by lifting, standing for 15 minutes, doing dishes, and cooking. Id. She reported that she took 300 milligrams of gabapentin daily, which made her sleepy. AR 179-80.
IV. Hearing Testimony
At the time of the hearing before ALJ Solomon, Plaintiff was 54 years old. AR 38. Plaintiff testified that she was born in Santo Domingo in the Dominican Republic and became a United States citizen in 1991. AR 39-40. She explained that she could understand, speak, read, and write English, and that she obtained a general equivalency diploma in approximately 1986 or 1987. Id. Plaintiff testified that she was not currently working or attending school, and was receiving public assistance. Id. According to Plaintiff's non-attorney hearing representative, Plaintiff was last employed approximately seven years prior to the hearing, as a cashier. AR 38. Plaintiff testified that she was not required to attend any programs for vocational rehabilitation 5 because “I can't lift anything heavy, and I fainted. So they told me to apply for Social Security.” AR 40.
Plaintiff testified that she had a pinched nerve in her neck and a problem with the mitral valve in her heart. AR 41. According to Plaintiff, she could not breathe well as a result of her heart problem, and she also had high blood pressure, high cholesterol, glaucoma, and a hernia in her spine. Id. Plaintiff testified that she was not currently seeing a cardiologist, as she was in the process of finding a new one, but she was receiving treatment for the pinched nerve in her neck, specifically gabapentin and physical therapy. AR 41-42. Plaintiff testified that she had received one injection in the past but was told she was not eligible for neck surgery. AR 42.
Plaintiff testified that she was able to take care of her personal needs, such as dressing herself, bathing, and grooming, but that she had difficulties cleaning and cooking, and that her son had to do her laundry for her. AR 42-43. She reported that her arm and neck bothered her when she mopped or swept, and she would have to take medication afterwards. AR 43. Plaintiff testified that she could “sometimes” go shopping by herself, but she needed her son to bring shopping bags up the stairs to their fourth-floor apartment. AR 43-44.
In response to specific questions from ALJ Solomon, Plaintiff explained that she has difficulty sitting for longer than half an hour due to lower back pain. AR 44. She testified that she treated her lower back problems with physical therapy, and that diagnostic tests showed she was suffering from “[a] hernia, arthritis, and something that I didn't understand very well but sort of degenerative.” Id. Plaintiff testified that she can only stand for approximately 15 to 20 minutes because her back hurts and she has bursitis in her left leg. AR 44-45. While Plaintiff testified that she had no difficulties using her hands and fingers for tasks like zippering zippers, buttoning buttons, putting on jewelry, or holding objects, she said that she could only 6 comfortably lift or carry 5-10 pounds, and could only walk about one block before she found herself out of breath. AR 45. Plaintiff testified that her medication had side effects: the gabapentin made her sleepy, and some of her medications made her heart beat faster and made her dizzy. Id.
When asked how she spends her days, Plaintiff testified that she gets up, makes coffee, and reads newspapers. Id. She testified that she takes all her medication, but one of them makes her sleepy, so she takes approximately two to three naps during the day. AR 46. Plaintiff testified that she has difficulty climbing stairs because she has to stop periodically to breathe, but she does not use any assistive devices. Id. She explained that she usually travels to her medical appointments by taxi, or sometimes the bus, but that she would only take the train with her son present because of the noise and her dizziness. AR 46-47. Plaintiff testified that she was unable to work because of her appointments and her pain, in particular her neck pain. Id.
APPLICABLE LEGAL PRINCIPLES
I. Standard of Review
The scope of review in an appeal from a Social Security disability determination involves two levels of inquiry. First, the court must review the Commissioner's decision to assess whether the Commissioner applied the correct legal standards when determining that the plaintiff was not disabled. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). “‘Failure to apply the correct legal standards is grounds for reversal.'” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
Second, the court must decide whether the Commissioner's decision was supported by substantial evidence. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means such relevant evidence as a reasonable mind might accept as 7 adequate to support a conclusion.” Id. at 106 (quotation marks omitted). When determining whether substantial evidence supports the Commissioner's decision, it is important that the court “carefully consider[] the whole record, examining evidence from both sides.” Tejada, 167 F.3d at 774. “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). If the “decision rests on adequate findings supported by evidence having rational probative force, [the court] will not substitute [its own] judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
“When, as here, the Court is presented with an unopposed motion, it may not find for the moving party without reviewing the record and determining whether there is a sufficient basis for granting the motion.” Martinez v. Comm'r of Soc. Sec., No. 14-cv-9115 (SN), 2016 WL 2343863, at *8 (S.D.N.Y. May 3, 2016). “Pro se litigants ‘are entitled to a liberal construction of their pleadings,' and, therefore, their complaints ‘should be read to raise the strongest arguments they suggest.'” Id. (quoting Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001)); see also Alvarez v. Barnhart, No. 03-cv-8471 (RWS), 2005 WL 78591, at *1 (S.D.N.Y. Jan. 12, 2005).
II. Determining Disability
The Act defines “disability” as “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). An individual is disabled under the Act if he or she suffers from an impairment which is “of such severity that he [or she] is not only unable to do his [or her] previous work but cannot . . . engage in any other kind of substantial gainful work 8 which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). “ʻ[W]ork which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” Id.
Regulations issued pursuant to the Act set forth a five-step process that the Commissioner must follow in determining whether a particular claimant is disabled. See 20 C.F.R. § 404.1520(a)(4). The Commissioner first considers whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), (b). If the claimant is engaged in substantial gainful activity, then the Commissioner will find that the claimant is not disabled; if the claimant is not engaged in substantial gainful activity, the Commissioner proceeds to the second step, at which the Commissioner considers the medical severity of the claimant's impairments. 20 C.F.R. § 404.1520(a)(4)(ii). A severe impairment is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant suffers from any severe impairment, the Commissioner at step three must decide if the impairment meets or equals a listed impairment; listed impairments are presumed severe enough to render an individual disabled, and the criteria for each listing are found in Appendix 1 to Part 404, Subpart P of Social Security regulations. 20 C.F.R. §§ 404.1520(a)(4)(iii), (d).
If the claimant's impairments do not satisfy the criteria of a listed impairment at step three, the Commissioner must then determine the claimant's residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). A claimant's RFC represents “the most [he or she] can still do despite [his or her] limitations.” 20 C.F.R. § 404.1545(a)(1). After determining the claimant's RFC, the Commissioner proceeds to the fourth step to determine whether the claimant can perform his or her past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), (e)-(f). If it is found 9 that the claimant cannot perform his or her past relevant work, the Commissioner proceeds to step five to consider the claimant's RFC, age, education, and work experience to determine whether he or she can adjust to other work. 20 C.F.R. §§ 404.1520(a)(4)(v), (g). To support a finding that the claimant is disabled, there must be no other work existing in significant numbers in the national economy that the claimant, in light of his or her RFC and vocational factors, is capable of performing. 20 C.F.R. § 404.1560(c).
The claimant bears the burden of proof on the first four steps of this analysis. DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998). If the ALJ concludes at an early step of the analysis that the claimant is not disabled, he or she need not proceed with the remaining steps. Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000). If the fifth step is necessary, the burden shifts to the Commissioner to show that the claimant is capable of performing other work. DeChirico, 134 F.3d at 1180.
DISCUSSION
I. The ALJ's Decision
ALJ Solomon applied the five-step sequential analysis described above and issued a decision finding that Plaintiff was not disabled from March 25, 2016 through the date of the decision, November 29, 2018. AR 23-30. First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since March 25, 2016, the date her application for benefits was filed. AR 25. Second, the ALJ determined that Plaintiff had the severe impairment of degenerative disc disease of the cervical spine. Id. The ALJ noted that Plaintiff has a history of knee, lumbar back, and leg pain, but concluded that there was “no evidence that these conditions would last or [be] expected to last at least 12 months, ” nor was there evidence that these conditions “caused any significant limitations on her ability to perform basic work activity.” AR 25. The ALJ 10 further explained that while the record indicates Plaintiff has a “remote history of mitral valve disorder, ” Plaintiff's “syncopal episodes were negative” and her echocardiogram showed only mild mitral prolapse and atrial aneurysm that were not likely to cause her symptoms. Id. The ALJ also referenced the fact that Plaintiff was asymptomatic during her Holter monitor study in December 2016. AR 25-26. Thus, the ALJ found that only Plaintiff's degenerative disc disease qualified as a severe impairment. Third, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 26.
The ALJ improperly referred to the Holter monitor study-a type of cardiac testing-as a finding by a “Dr. Holter.” AR 25.
According to the ALJ, Plaintiff retained the RFC to perform the full range of “medium work, ” as defined in 20 C.F.R. § 416.967(c), without any exceptions or accommodations. Id. The ALJ determined Plaintiff's RFC by applying the two-step framework described in 20 C.F.R. § 404.1529, concluding first that “the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms.” Id. The ALJ next found that Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” Id. The ALJ focused on those portions of Plaintiff's Activities of Daily Living form, see AR 165-90, that indicated her ability to take care of various personal needs, as well as her abilities to remain attentive and get along with others. AR 27. In addition, the ALJ provided a summary of certain medical records, ultimately concluding that “[t]he overall medical evidence in file [sic] fails to 11 show any disabling symptoms because of the claimant's impairments. Her physical examinations were normal. With the exception of mild cervical degenerative disc disease, the object records indicated that she has no problems ambulating, bending, or performing other range of motion exercises.” AR 28.
“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c). If someone can do medium work, the SSA “determine[s] that he or she can also do sedentary and light work.” Id.
In weighing opinion evidence, the ALJ assigned “substantial weight” to the October 18, 2016 opinion of consultative examiner Dr. Aurelio Salon, who opined that Plaintiff had “no limitations for sitting, standing, pulling, pushing, lifting, or carrying.” Id. According to the ALJ, Dr. Salon's one-time evaluation was thorough and “completely within normal limitations, ” a point that the ALJ asserted was supported by the lack of substantial limitations in Plaintiff's treatment records. Id. In contrast, the ALJ assigned “little weight” to consultative internal medicine examiner Dr. Silvia Aguiar's medical source statement, which was completed after an examination performed on June 18, 2018. Id. Dr. Aguiar opined that Plaintiff had a moderate limitation on exertion due to mitral valve abnormality and should avoid any positional activities that require balance, heights, operating heavy machinery, and operating motor vehicles due to a history of syncope. Id. The ALJ gave little weight to this conclusion because Plaintiff's mitral valve abnormality was “noted to be mild and asymptomatic, ” and diagnostic tests had not confirmed any condition that would cause syncope. Id. The ALJ ultimately determined that “the record did not demonstrate any substantial physical limitations, ” and that while Plaintiff's testimony and “some minimal positive findings” were sufficient to support a finding of “a severe medically determinable impairment, ” this impairment “would not prevent [Plaintiff] from doing medium work.” Id. 12
Syncope is “loss of consciousness resulting from insufficient blood flow to the brain.” https://www.merriam-webster.com/dictionary/syncope (last visited 1/19/2022).
At the fourth step, the ALJ determined that Plaintiff had no past relevant work. Id.
This assertion is contradicted by evidence in the administrative record, as discussed in Part II.b, infra.
At the fifth step, the ALJ found that considering the claimant's age, education, work experience, and RFC for the full range of medium work, a finding of “not disabled” was directed by Medical-Vocational Rule 203.14 and 203.21. AR 29. The ALJ therefore concluded that Plaintiff was not disabled from the date of her application for benefits, March 25, 2016, through the date of the decision, November 29, 2018. AR 30.
The ALJ noted that even if Plaintiff were only able to perform the full range of light, rather than medium, work, she would still be deemed “not disabled” pursuant to Medical-Vocational Rule 202.13. AR 29. Light work “involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b).
II. The ALJ's Evaluation of Medical Evidence
The Commissioner seeks to have her final decision affirmed; she maintains that the ALJ's decision is supported by substantial evidence and is based upon the application of correct legal standards. See Def.'s Mem. at 11-19.
As a general matter, an ALJ is directed to consider “every medical opinion” in the record, regardless of its source. 20 C.F.R. §§ 404.1527(c). The ALJ failed to do so here. Although the ALJ gave appropriate consideration to certain medical sources, the ALJ erred by wholly ignoring evidence from one source whose evaluation of Plaintiff could have had a substantial 13 impact on the RFC analysis in Plaintiff's favor. Accordingly, the Court cannot conclude that the ALJ's error was harmless.
Citations to SSA regulations in this section are to the version of the “treating source rule” that is applicable to claims filed before March 27, 2017. Plaintiff filed for benefits on March 25, 2016; accordingly, this version of the treating source rule is the applicable standard for this matter.
While the ALJ must consider every medical opinion in the record, “the source of the opinion dictates the process by which it is weighed.” Mercado v. Colvin, No. 15-cv-2283 (JCF), 2016 WL 3866587, at *14 (S.D.N.Y. July 13, 2016). SSA regulations “distinguish between ‘acceptable medical sources,' who can provide opinion evidence to establish whether a claimant has a medically determinable impairment, and ‘other sources,' who can offer opinions regarding the severity of an impairment and how it affects the claimant's ability to work.” Id. (quoting 20 C.F.R. § 404.1513(a), (d)). In addition, the opinions of a treating source as to the nature and severity of a claimant's impairments are generally, but not always, entitled to “more weight” relative to those from other healthcare providers. 20 C.F.R. § 404.1527(c)(2); Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 1995). Such opinions are given controlling weight if they are “well-supported by medically acceptable clinical and laboratory diagnostic techniques and [are] not inconsistent with the other substantial evidence” in the record. 20 C.F.R. § 404.1527(c)(2); Rugless v. Comm'r of Soc. Sec., 548 Fed.Appx. 698, 700 (2d Cir. 2013) (summary order). Conversely, opinions from treating sources “need not be given controlling weight where they are contradicted by other substantial evidence in the record.” Veino, 312 F.3d at 588; Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (a treating source opinion is not afforded controlling weight if it is “not consistent with other substantial evidence in the record, such as the opinions of other medical experts.”).
In the event that a treating source's opinion is not given controlling weight, the ALJ must consider various factors to determine the appropriate amount of deference to assign to the 14 medical opinions in the record. See 20 C.F.R. §§ 404.1527(c). These factors include: (i) the length of the treatment relationship and the frequency of examination; (ii) the nature and extent of the treatment relationship; (iii) the extent to which the medical source provides relevant evidence to support an opinion; (iv) the extent to which the opinion is consistent with the record as a whole; (v) whether the opinion is given by a specialist; and (vi) other factors which may be brought to the attention of the ALJ. 20 C.F.R. § 404.1527(c)(2)(i)-(ii), (c)(3)-(c)(6). The ALJ need not provide a “slavish recitation of each and every factor where the ALJ's reasoning and adherence to the regulation are clear.” Atwater v. Astrue, 512 Fed.Appx. 67, 70 (2d Cir. 2013) (summary order); see also Martinez-Paulino v. Astrue, No. 11-cv-5485 (RPP), 2012 WL 3564140, at *16 (S.D.N.Y. Aug. 20, 2012). Nevertheless, when an ALJ fails to consider an opinion that is more favorable to the Plaintiff than the other opinions that were considered, it may be grounds for remand. See Santiago v. Comm'r of Soc. Sec., No. 13-cv-3951 (LTS) (SN), 2014 WL 3819304, at *19 (S.D.N.Y. Aug. 4, 2014).
a. Evidence Properly Considered by the ALJ
Plaintiff was treated at the Washington Heights Family Health Center from February 2015 through June 2018, and she had numerous visits during that period with Nurse Practitioner (“NP”) Crystal Cartwright. AR 314-98. ALJ Solomon cited medical records from the Center in support of his decision but did not assign a particular weight to the findings of Nurse Practitioner Cartwright. Even though NP Cartwright was Plaintiff's treating medical provider, this was appropriate, because at the time of the ALJ's decision, nurse practitioners were not considered an “acceptable medical source” under SSA regulations. See 20 C.F.R. § 416.913(d)(1) (effective September 3, 2013 to March 26, 2017); Genier v. Astrue, 298 Fed.Appx. 105, 108 (2d Cir. 2008) (summary order); Ayala v. Berryhill, No. 18-cv-124 (VB) (LMS), 2019 WL 1427398, at *7 (S.D.N.Y. Mar. 12, 2019), 15 adopted by 2019 WL 1417220 (S.D.N.Y. Mar. 29, 2019). For this reason, nurse practitioners also did not qualify as a “treating source” whose opinion would be entitled to more weight. 20 C.F.R. 404.1527(a)(2); Evans v. Comm'r of Soc. Sec., 110 F.Supp.3d 518, 536 (S.D.N.Y. 2015); Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983) (“the diagnosis of a nurse practitioner should not be given the extra weight accorded to a treating physician”). A nurse practitioner could, however, be considered an “other source opinion” whose findings are “still entitled to some weight, especially where there is a regular treatment relationship with the claimant.” Evans, 110 F.Supp.3d at 536; Genier, 298 Fed.Appx. at 108 (“while the ALJ is certainly free to consider the opinions of these ‘other sources' in making his overall assessment of a claimant's impairments and residual abilities, those opinions do not demand the same deference as those of a treating physician”). ALJ Solomon properly applied the relevant regulations by including NP Cartwright's findings and diagnoses in his decision while apparently only giving them some weight. See AR 27.
ALJ Solomon assigned “significant weight” to the opinion of Dr. Salon, a consultative examiner who performed a “thorough” one-time evaluation of Plaintiff. Dr. Salon concluded that “there are no objective findings to support the fact that the claimant will be restricted in her ability to sit or stand or in her capacity to climb, push, pull, or carry heavy objects.” AR 28, 213-15. Meanwhile, ALJ Solomon afforded “little weight” to the medical opinion of another consultative examiner, Dr. Silvia Aguiar, who examined Plaintiff upon a referral by the Division of Disability Determination on June 18, 2018. AR 28, 251-61. Despite Dr. Aguiar's determination that Plaintiff had moderate limitation to exertion due to mitral valve abnormality and that she should avoid heights and machinery due to a history of syncope, the ALJ gave little weight to these conclusions because Plaintiff's “mitral valve abnormality was noted to be mild 16 and symptomatic” and “no diagnostic tests have confirmed any condition that would cause syncope.” Id.
“It is well-settled that a consulting physician's opinion can constitute substantial evidence supporting an ALJ's conclusions.” Suarez v. Colvin, 102 F.Supp.3d 552, 577 (S.D.N.Y. 2015); Mongeur, 722 F.2d. at 1039. The Second Circuit Court of Appeals has “frequently cautioned that ALJs should not rely heavily on the findings of consultative physicians after a single examination.” Estrella v. Berryhill, 925 F.3d 90, 98 (2d Cir. 2019); Drake v. Saul, 839 Fed.Appx. 584, 587 (2d Cir. 2020) (summary order). But “[i]t is also generally accepted that a consultative examiner's opinion may be accorded greater weight than a treating source's opinion where the ALJ finds it more consistent with the medical evidence.” Colbert v. Comm'r of Soc. Sec., 313 F.Supp.3d 562, 577 (S.D.N.Y. 2018). As there was no acceptable treating medical source in this case, the ALJ properly turned to Plaintiff's non-treating medical sources, even though they had only evaluated Plaintiff on a single occasion. There is also nothing inappropriate about the ALJ assigning different weights to the medical opinions of different consultative examiners within the same decision. See, e.g., Suarez, 102 F.Supp.3d at 566-67, 576-78. Here, ALJ Solomon explained his bases for the different weights that he assigned to the opinions of Dr. Salon and Dr. Aguiar, and the reasoning he provided is consistent with the medical evidence that he reviewed in evaluating Plaintiff's claim.
b. The Failure to Consider the Findings of Dr. Branker
The problem, however, is that the ALJ did not consider all of the available medical evidence that should have been assessed in evaluating Plaintiff's claims. Specifically, the ALJ failed to weigh or even mention the findings of Dr. Lavonna Branker, a third non-treating medical source, who examined Plaintiff on behalf of Federation Employment & Guidance 17 Service (“FEGS”) on March 27, 2015. See AR 231-50. While the report from Dr. Branker was listed as a “medical record” exhibit to the ALJ's decision, see AR 32, there is no discussion, or even any citation, anywhere in the decision to any findings from that report, including findings that presented a much narrower view of Plaintiff's work capabilities than Dr. Salon, whose opinion was given significant weight based on a similar scope of examination. See AR 23-30. As set forth by the Commissioner in her motion papers-which included a discussion of Dr. Branker's findings, see Def.'s Mem. at 9-there were only four medical sources to consider in this case. The ALJ's completely unexplained omission of one of those sources-the one that presented findings most favorable to Plaintiff's application for benefits-is an error sufficient to require remand.
“Regardless of its source, the ALJ must evaluate every medical opinion in determining whether a claimant is disabled under the Social Security Act.” Craig v. Comm'r of Soc. Sec., 218 F.Supp.3d 249, 262 (S.D.N.Y. 2016) (quotation marks and brackets omitted); see 20 C.F.R. § 404.1527(c); Garcia v. Berryhill, No. 17-cv-10064 (BCM), 2018 WL 5961423, at *11-12 (S.D.N.Y. Nov. 14, 2018) (remanding to the SSA based on an ALJ's failure to incorporate limitations described by one doctor into the RFC determination, and “wholly ignoring the opinion” of a second doctor). Where, as here, there has been no assignment of controlling weight to the medical opinion of the claimant's treating physician, “the weight accorded any medical opinion, including the opinions of non-treating medical sources, must be assessed under the same factors relevant to an ALJ's decision to accord less than controlling weight to the opinion of a treating physician.” Hubbard v. Comm'r of Soc. Sec., No. 18-cv-3119 (RWL), 2019 WL 3940150, at *10 (S.D.N.Y. Aug. 5, 2019) (quotation marks omitted). “Failure to properly weigh non-treating medical opinions under this framework is legal error.” Id. Such error 18 “ordinarily requires remand to the ALJ for consideration of the improperly excluded evidence, at least where the unconsidered evidence is significantly more favorable to the claimant than the evidence considered.” Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010). Even if an ALJ may have discounted a medical opinion for any number of reasons, the ALJ must explain why that opinion is being rejected, because in the absence of such an explanation, “the Court cannot simply assume that the required consideration and analysis took place.” Garcia, 2018 WL 5961423, at *12.
Failure to consider a medical opinion might “be harmless error if it could not have changed the outcome at the agency level.” Garcia, 2018 WL 5961423 at *14; Greek v. Colvin, 802 F.3d 370, 376 (2d Cir. 2015). But in this case, consideration of Dr. Branker's findings could have impacted the ALJ's RFC determination and the assessment as to Plaintiff's ability to perform jobs existing in significant numbers in the national economy. While some of Dr. Branker's observations were similar to those of Dr. Salon-for example, her finding that Plaintiff had full range of motion in her extremities bilaterally, and a normal musculoskeletal exam-Dr. Branker concluded, unlike Dr. Salon, that Plaintiff should limit or eliminate lifting, pushing, pulling, carrying, stooping, bending, and reaching. AR 231-45. In particular, Dr. Branker found that Plaintiff had could only lift, push, and pull up to 10 pounds, no more than ten times per hour, for up to three hours, and would have temporal limitations in her ability to stand, climb, and repeatedly bend, crouch, or stoop. AR 243, 245, 246. Dr. Branker recommended that Plaintiff limit or eliminate lifting, pushing, pulling, carrying, stooping, bending, or reaching, and limit walking, standing, climbing, kneeling, or squatting. AR 245. Yet without even acknowledging Dr. Branker's contrary opinion, the ALJ determined that Plaintiff was capable of performing the full range of medium work, which involves lifting up to 50 pounds at a time with 19 frequent lifting or carrying of objects weighing up to 25 pounds-a finding very much at odds with Dr. Branker's recommendations. See 20 C.F.R. § 404.1567(c) (defining medium work); AR 26. Additionally, Dr. Branker diagnosed Plaintiff with vertigo, and advised that she “avoid unprotected heights, balancing, and heavy machinery.” AR 245. The vertigo diagnosis, when considered with other medical opinions-particularly Dr. Aguiar's conclusion that Plaintiff had moderate limitation to exertion and should avoid positional activities that require balance, heights, operating heavy machinery, and operating motor vehicles-itself could have resulted in a different RFC analysis. AR 251-54; see Garcia, 2018 WL 5961423 at *14-15. Again, the ALJ did not even consider this evidence, let alone review it with a vocational expert, who was present at the administrative hearing but was not asked to provide testimony. “This was error, for an ALJ's ‘RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the [ALJ] must explain why the opinion was not adopted.'” Hubbard, 2019 WL 3940150, at *11 (quoting SSR 96-8P, 1996 WL 374184, at *7 (S.S.A. July 2, 1996)). Moreover, the Court is not permitted to “infer a reason for the ALJ's failure to address these records.” Santiago, 2014 WL 3819304, at *19; see Barbera v. Barnhart, 151 Fed.Appx. 31, 33 (2d Cir. 2005) (summary order) (“A reviewing court may not supply reasons to justify an agency determination.”). Given the ALJ's failure to provide an explanation for his disregard of Dr. Branker's findings, “the Court cannot determine whether [Plaintiff] was afforded a full and fair hearing.” Santiago, 2014 WL 3819304, at *19.
Indeed, based on this combination of recommended limitations and accommodations, Plaintiff may not have been deemed available for the full range of light work. See 20 C.F.R. § 404.1567(b).
The ALJ's failure to acknowledge the medical opinion of Dr. Branker was not harmless error, as the limitations it noted could have resulted, at the very least, in a more restrictive RFC 20 finding. See Lewis v. Colvin, No. 1:14-CV-00794, 2017 WL 2703656, at *2 (W.D.N.Y. June 23, 2017). Even though “an ALJ need not reconcile explicitly every conflicting shred of medical testimony, ” Zabala, 595 F.3d at 410 (quotation marks omitted), an ALJ is required to evaluate every medical opinion received, 20 C.F.R. § 404.1527(c), and an ALJ must explain his or her decision to discount the opinion of any medical source opinion that conflicts with his or her RFC determination, SSR 96-8P, 1996 WL 374184, at *7. The ALJ in this case neither acknowledged the opinion of Dr. Branker nor explained his reasons for declining to adopt Dr. Branker's assessed limitations in determining Plaintiff's RFC. Accordingly, the case should be remanded so that Dr. Branker's medical opinions can be properly considered.
In addition to properly addressing Dr. Branker's evaluation of Plaintiff, the ALJ should also address the erroneous conclusion that Plaintiff “has no past relevant work, ” and thus “[t]ransferability of job skills is not an issue.” AR 28-29. There are several indications in the record that Plaintiff does have a work history, even though the record is unclear as to when Plaintiff most recently worked: (i) on her Activities of Daily Living form, Plaintiff stated that she worked as a cashier at a fast food restaurant until 2013, AR 183-84; (ii) as part of a Disability Report completed on September 14, 2016, Plaintiff stated that she stopped working as a cashier in January 2007, adding that she “had only one job in the last 15 years before [she] became unable to work”; and (iii) Plaintiff's non-attorney representative stated at the administrative hearing that Plaintiff “was last employed about seven years ago as a cashier, ” AR 38.
SSA regulations provide that “work experience applies when it was done in the last 15 years, lasted long enough for [the claimant] to learn to do it, and was substantial gainful activity.” 20 C.F.R. § 416.965(a). “Substantial gainful activity” is defined as work that 21 “involves doing significant and productive physical or mental duties; and . . . [i]s done (or intended) for pay or profit.” 20 C.F.R. § 416.910. Regardless of whether Plaintiff stopped working in 2007 or 2013, her work experience would qualify as substantial gainful activity. See, e.g., Morales v. Berryhill, 484 F.Supp.3d 130, 140 (S.D.N.Y. 2020) (Plaintiff's previous employment as cashier qualified as “past relevant work”).
Upon remand, the ALJ should explicitly acknowledge that Plaintiff has a work history, clarify the confusion in the record about when Plaintiff stopped working, and elicit testimony about the kinds of activities she engaged in as part of her work. See McCarthy v. Astrue, No. 07-cv-300 (JCF), 2007 WL 4444976, at *8 (S.D.N.Y. Dec. 18, 2009) (“[A] credibility determination should take account of prior work history”).
Because the Court recommends that this case be remanded remands on the dispositive issue of the ALJ's legal error in failing to acknowledge the medical opinion of Dr. Branker, the Court need not reach the second aspect of judicial review, namely whether the ALJ's resolution of Plaintiff's case is supported by substantial evidence. See Hubbard, 2019 WL 3940150, at *12; Garcia v. Colvin, No. 14-cv 3725, 2015 WL 5786506, at *26 (S.D.N.Y. Sept. 29, 2015) (“Where remand is appropriate because the ALJ failed to apply the correct legal principles, the Court should not, prior to remand, attempt to assess whether substantial evidence in the Record supports the ultimate disability determination.”).
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Commissioner's motion for judgment on the pleadings (ECF No. 16) be DENIED, that judgment be entered in favor of 22 Plaintiff, and that this matter be remanded to the Commissioner for further administrative proceedings.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made by mail). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kenneth M. Karas, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Karas, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015). 23