Opinion
22-CV-4801 (MKV) (RWL)
08-24-2023
ALFREDO CARMINE CIANFANO, Plaintiff, v. KILOL KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION TO HON. MARY K. VYSKOCIL: SOCIAL SECURITY APPEAL
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Alfredo Carmine Cianfano (“Cianfano” or “Plaintiff”), represented by counsel, commenced the instant action against Defendant Commissioner (the “Commissioner”) of the Social Security Administration (the “Administration” or the “SSA”) pursuant to the Social Security Act (the “Act”), 42 U.S.C. § 405(g), seeking review of the Commissioner's decision that Cianfano is not disabled and therefore not entitled to Supplemental Security Income (“SSI”). Cianfano moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure Rule 12(c), seeking reversal of the denial of his application for SSI. Cianfano contends that the Administrative Law Judge (“ALJ”) who issued the decision failed to conduct proceedings in a non-adversarial manner and that the ALJ's decision is not supported by substantial evidence. The Commissioner crossmoves for judgment on the pleadings, asking the Court to affirm the ALJ's decision. For the reasons explained below, I recommend that Cianfano's motion be DENIED, and the Commissioner's motion be GRANTED.
PROCEDURAL HISTORY
On August 25, 2016, Cianfano filed applications for social security benefits. (R. 394.) He claimed injuries sustained from a car accident on September 22, 2014, including a broken leg, torn meniscus, and traumatic brain injury (severe concussion). (R. 401.) The Administration denied his claim on November 30, 2016. (R. 129-41.) On January 5, 2017, Cianfano requested a hearing. (R. 212.) Represented by counsel, Cianfano appeared for a hearing on August 29, 2018 and testified before ALJ Sharda Singh (“ALJ Singh” or the “ALJ”). (R. 84-110.)
The ALJ's decision under review states that Cianfano filed his SSI application on August 15, 2016. (R. 173). That appears to be a typographical error. The date on Cianfano's applications for social security benefits is August 25, 2016 (R. 394, 382), and that is also the date that Cianfano alleges he applied for SSI in his briefing. (Dkt. 24 at 1.)
Cianfano filed for both SSI (R. 394-408) and Disability Insurance Benefits (“DIB”) (R. 382-93). The Administration denied his claims for both benefits (R. 129-41). Cianfano pursued only his claim for SSI before the ALJ. (R. 93.)
“R.” refers to the administrative record filed on September 26, 2022 at Dkt. 18.
On November 6, 2018, ALJ Singh issued a “Partially Favorable” decision (the “2018 Hearing Decision”) (R. 142), finding that Cianfano was disabled for a closed period from September 22, 2014 through September 30, 2016, and that his disability ended on October 1, 2016 (R. 147). Cianfano requested review of the ALJ's decision by the Appeals Council on November 20, 2018. (R. 272-73.) Upon review, the Appeals Council vacated the entire decision on September 13, 2019 and remanded the case to an ALJ with specific instructions. (R. 165.)
Cianfano, represented by counsel, appeared again before ALJ Singh on April 30, 2021 for a new hearing. (R. 111.) ALJ Singh issued an “Unfavorable” decision (the “2021 Hearing Decision”) on May 20, 2021 (R. 169), finding that Cianfano had not been disabled since August 15, 2016 and was not entitled to SSI. (R. 173.) On May 20, 2021, Cianfano requested review by the Appeals Council. (R. 378-81.) The Appeals Council declined to review the decision on April 7, 2022, at which point the ALJ's decision became final. (R. 191-96.)
On June 10, 2022, Cianfano commenced the instant action by filing the Complaint (“Compl.”), seeking reversal or remand of the Commissioner's decision. (Dkt. 1.) Cianfano filed an Amended Complaint (“Amend. Compl.”) on July 12, 2022. (Dkt. 14.) On December 14, 2022, Cianfano filed the instant motion and supporting memorandum of law. (“Pl. Mem.,” Dkt. 24.) On February 13, 2023, the Commissioner cross-moved for judgment on the pleadings and filed a supporting memorandum of law. (“Def. Mem.,” Dkt. 27.) Cianfano replied on March 6, 2023. (“Pl. Reply,” Dkt. 28.) The matter has been referred to me for a report and recommendation. (Dkt. 16.)
APPLICABLE LAW
A. Standard Of Review
A United States District Court may affirm, modify, or reverse (with or without remand) a final decision of the Commissioner. 42 U.S.C. § 405(g); Skrodzki v. Commissioner of Social Security Administration, 693 Fed.Appx. 29, 29 (2d Cir. 2017) (summary order). The inquiry is “whether the correct legal standards were applied and whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004); accord Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).
“‘Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.'” Douglass v. Astrue, 496 Fed.Appx. 154, 156 (2d Cir. 2012) (quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (remanding for noncompliance with regulations)). Courts review de novo whether the correct legal principles were applied and whether the legal conclusions made by the ALJ were based on those principles. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (reversing where the court could not “ascertain whether [the ALJ] applied the correct legal principles ... in assessing [plaintiff's] eligibility for disability benefits”); Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (reversing where the Commissioner's decision “was not in conformity with the regulations promulgated under the Social Security Act”); Thomas v. Astrue, 674 F.Supp.2d 507, 515, 520 (S.D.N.Y. 2009) (reversing for legal error after de novo consideration).
If the reviewing court is satisfied that the ALJ applied the correct legal standards, then the court must “‘[c]onduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision.'” Brault v. Social Security Administration, Commissioner, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). Substantial evidence is defined as “‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971)); see also Biestek v. Berryhill, __ U.S. __,__, 139 S.Ct. 1148, 1154 (2019) (reaffirming same standard). “The substantial evidence standard means once an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448 (internal quotation marks omitted) (emphasis in original); see also 42 U.S.C. § 405(g) (“findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive”).
To be supported by substantial evidence, the ALJ's decision must be based on consideration of “all evidence available in [the claimant]'s case record.” 42 U.S.C. § 423(d)(5)(B). The Act requires the ALJ to set forth “a discussion of the evidence” and the “reasons upon which [the decision] is based.” 42 U.S.C. § 405(b)(1). While the ALJ's decision need not “mention[ ] every item of testimony presented,” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam), or “‘reconcile explicitly every conflicting shred of medical testimony,'” Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983)), the ALJ may not ignore or mischaracterize evidence of a person's alleged disability. See Ericksson v. Commissioner of Social Security, 557 F.3d 79, 82-84 (2d Cir. 2009) (mischaracterizing evidence); Kohler, 546 F.3d at 268-69 (overlooking and mischaracterizing evidence); Ruiz v. Barnhart, No. 01-CV-1120, 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring evidence).
Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). The Court must afford the Commissioner's determination considerable deference and “‘may not substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'” Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary of Health and Human Services, 733 F.2d 1037, 1041 (2d Cir. 1984)); Dunston v. Colvin, No. 14-CV-3859, 2015 WL 54169, at *4 (S.D.N.Y. Jan. 5, 2015) (same) (quoting Jones, 949 F.2d at 59), R & R adopted, 2015 WL 1514837 (S.D.N.Y. Apr. 2, 2015). Accordingly, if a court finds that there is substantial evidence supporting the Commissioner's decision, the court must uphold the decision, even if there is also substantial evidence for the claimant's position. Genier v. Astrue, 606 F.3d, 46, 49 (2d Cir. 2010). “The Court, however, will not defer to the Commissioner's determination if it is the product of legal error.” Dunston, 2015 WL 54169, at *4 (internal quotation marks omitted) (citing, inter alia, Douglass, 496 Fed.Appx. at 156; Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)).
B. Determination Of Disability
Under the Act, a person meeting certain requirements and considered to have a disability is entitled to disability benefits. 42 U.S.C. § 423(a)(1). The Act defines disability as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A claimant's impairments must be “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.” 42 U.S.C. § 423(d)(2)(A).
To determine whether an individual is disabled and therefore entitled to benefits, the Commissioner conducts a five-step sequential analysis. 20 C.F.R. § 416.920(a)(4). First, the Commissioner must determine whether the claimant is currently engaged in any substantial gainful activity. 20 C.F.R §§ 416.920(a)(4)(i), (b). If so, the claimant is eligible for benefits and the inquiry ceases.
Because this case is about Cianfano's application for SSI benefits, the Court cites to regulatory standards for SSI determinations, which are found at 20 C.F.R. § 416.901, et seq., instead of the standards for DIB, which are found at 20 C.F.R. § 404.900, et seq., or both. See Coulter v. Commissioner of Social Security, No. 22-CV-1149, 2023 WL 3346505, at *2 n.1 (S.D.N.Y. May 10, 2023) (“The regulations for disability and disability insurance and supplemental security income benefits are virtually identical. The DIB regulations are found at 20 C.F.R. § 404.900, et seq., while the parallel SSI regulations are found at 20 C.F.R. § 416.901, et seq.”) (quoting Canter v. Saul, No. 19-CV-00157, 2020 WL 887451, at *1 n.2 (D. Conn. Feb. 24, 2020)).
If the claimant is not engaged in any such activity, the Commissioner proceeds to the second step and must determine whether the claimant has a “severe impairment,” which is an impairment or combination of impairments that significantly limits the claimant's ability to perform basic work activities. 20 C.F.R. §§ 416.920(a)(4)(ii), (c). If the claimant does not have an impairment or combination of impairments that are “severe” the claimant is not entitled to benefits and the inquiry ends.
If the claimant has a severe impairment or combination of impairments, the Commissioner continues to step three and must determine whether the impairment or combinations of impairments is, or medically equals, one of those included in the “listings” of the regulations contained at 20 C.F.R. Part 404, Subpart P, Appendix 1. If the claimant's impairment or impairments meet or medically equals one of those listings, the Commissioner will presume the claimant to be disabled, and the claimant will be eligible for benefits. 20 C.F.R. §§ 416.920(a)(4)(iii), (d).
If the claimant does not meet the criteria for being presumed disabled, the Commissioner continues to step four and must assess the claimant's residual functional capacity (“RFC”), which is the claimant's ability to perform physical and mental work activities on a sustained basis despite their impairments. The Commissioner then determines whether the claimant possesses the RFC to perform the claimant's past work. 20 C.F.R. §§ 416.920(a)(4)(iv), (f), (h). If so, the claimant is not eligible for benefits and the inquiry stops.
If the claimant is not capable of performing prior work, the Commissioner must continue to step five and determine whether the claimant is capable of performing other available work. 20 C.F.R. §§ 416.920(a)(4)(v), (g), (h). If the claimant, as limited by his RFC, can perform other available work, the claimant is not entitled to benefits. 20 C.F.R. §§ 416.920(a)(4)(iv), (v). The claimant bears the burden of proof for the first four steps. Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). Once the claimant has established that he is unable to perform his past work, however, the Commissioner bears the burden of showing at the fifth step that “there is other gainful work in the national economy which the claimant could perform.” Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998) (internal quotation marks omitted).
Both Plaintiff and Defendant provided recitations of the facts and medical record that are largely consistent with each other, although each emphasizes different facts. The Court provides a summary here and assumes the parties' familiarity with the full record.
On September 22, 2014, a car struck Cianfano on the left side of his body, tossing him the ground. (R. 588.) He was taken by ambulance to New York-Presbyterian/Lawrence Hospital, where Dr. Brian Fahnrich (“Dr. Fahnrich”) evaluated him. (R. 588.) Dr. Fahnrich found that Cianfano was not distressed, but instead alert, and that he had no apparent head trauma. (R. 589.) A CT scan showed no acute abnormality. (R. 589-90.) Dr. Fahnrich also examined Cianfano's left knee and concluded there were no fractures. (R. 590.) The hospital discharged Cianfano several hours later. (R. 59192.)
Prior to the time of the car accident, Cianfano worked as a self-employed equities trader. (R. 117, 120.) However, he did not make any earnings from 2000 to the time of the accident. (R. 416; see also R. 120.)
A. The Medical Record
1. Neurological Testing Prior To SSI Filing
Cianfano had his first follow-up after the accident on October 24, 2014 with neurologist Dr. Ronald Silverman (“Dr. Silverman”), who treated him for the next few months. (R. 637.) Dr. Silverman ordered an MRI of Cianfano's brain, which revealed no intracranial abnormality. (R. 637.)
On January 30, 2015, neurologist Dr. Glenn Seliger (“Dr. Seliger”) conducted a medical exam as part of the Cianfano's insurance claim. (R. 897-99.) At the time, Cianfano reported having persistent intermittent headaches, memory problems, organizational problems, and worry about the accident. (R. 897.) Dr. Seliger noted that Cianfano was alert, awake, and fluent, although his recall was “mildly” abnormal. (R. 898.) Dr. Seliger also noted that Cianfano would “probably have some difficulties working at full performance as an equities trader” but noted that a “neuropsych would be necessary to make definitive statements on this issue.” (R. 899.)
On February 16, 2015, Dr. Silverman conducted a mental status exam of Cianfano, finding Cianfano's concentration, speech, memory, and recall to be “normal.” (R. 634.) Although Cianfano reported headaches, slightly blurry vision, sensitivity to light, trouble concentrating, and memory loss, he also reported working out five times a week. (R. 63334.)
Dr. Silverman referred Cianfano to neurologist Dr. Michael Weintraub (“Dr. Weintraub”) to conduct further neurological testing. (R. 629.) On March 17, 2015, Dr. Weintraub stated that “based upon [Cianfano's reported] history, if accurate, the pedestrian accident appears to have caused him a cerebral concussion and a possible contusion effect.” (R. 631.) Based on his examination, however, Dr. Weintraub concluded that Cianfano “demonstrates a normal neurological exam,” that he “did not find any evidence of damage from the primitive reflexes or focal neurological findings,” and that Cianfano had “good recall over 18 minutes” that was “quite excellent.” (R. 631.) Dr. Weintraub advised Cianfano to take folic acid and engage in acupuncture. (R. 631.) Dr. Weintraub also ordered an MRI of the brain, which was conducted in April 2015 (R. 631) and was unremarkable. (R. 679.) In April 2015, Dr. Weintraub discharged Cianfano from his care and noted that Cianfano had not sustained any contusion or severe neurological damage. (R. 679.)
Several months later, on September 15, 2015, Cianfano returned to Dr. Weintraub, complaining of headaches and blurred vision. (R. 675.) Dr. Weintraub ordered two more MRIs in September and October 2015, and both returned unremarkable findings. (R. 670-71.) Dr. Weintraub noted that Cianfano's “workup [was] remarkably normal” and that Cianfano did not display any objective symptomatology. (R. 675, 677.)
Cianfano visited Dr. Weintraub again on February 19, 2016, reporting that he was still having headaches, blurred vision, photosensitivity, and forgetfulness. (R. 667.) Dr. Weintraub continued to document normal neurological findings, including with regard to Cianfano's memory and ability to communicate. (R. 667-69.)
On March 1, 2016, Cianfano was examined by Dr. Scott Forman (“Dr. Forman”), an associate professor of ophthalmology. (R. 626.) Cianfano reported “visual confusion, blurred vision, diplopia, brain fog, inability to concentrate on printed material and/or computer screens and loses his place when reading.” (R. 626.)
“Diplopia is when you see two images of the same thing ... [or] double vision.” Diplopia (Double Vision), WEBMD, https://www.webmd.com/eye-health/double-vision-diplopia-causes-symptoms-diagnosis-treatment (last visited Aug. 24, 2023).
2. Neurological Testing After SSI Filing
Cianfano attended his first appointment after filing for SSI benefits on October 26, 2016 with psychologist Dr. Melissa Antiaris (“Dr. Antiaris”), who performed a consultative psychiatric evaluation. (R. 763-67.) The mental exam showed some mildly limited cognitive skills, but intact concentration and attention and “above average” cognitive functioning. (R. 764.) Dr. Antiaris found that Cianfano had no limitations in following and understanding simple instructions, performing tasks independently, making appropriate decisions, relating adequately with others, and dealing appropriately with stress, although she found mild limitations in his ability to maintain attention, concentration, and a regular schedule, to learn new tasks, and to perform complex tasks independently. (R. 765.) She also reported Cianfano's independence in self-care, occasional cleaning and shopping, managing his own funds, and enjoying being social with friends. (R. 765.) Dr. Antiaris diagnosed Cianfano with a minor neurocognitive disorder and noted that his prognosis was fair. (R. 765.)
The Division of Disability Determination referred Cianfano to Dr. Julia Kaci (“Dr. Kaci”) for an internal medicine examination, which she also performed on October 26, 2016. (R. 768-71.) Cianfano complained of insomnia, daily headaches, double or blurred vision, problems focusing or concentrating, short- and long-term memory loss, and trouble finding words. (R. 768.) Cianfano also reported that he cleaned occasionally, shopped two to three times a week, and liked to watch television and read. (R. 769.) Dr. Kaci diagnosed Cianfano with a concussion, headaches, and left knee pain. (R. 770.) She opined that Cianfano should avoid bright lights and noisy environments to avoid triggering his symptoms, and that he had mild limitations on sitting, standing, walking, and activities requiring fine vision, and moderate limitations in squatting, kneeling, going up and down the stairs, and carrying. (R. 770-71.)
Dr. R. McClintock (“Dr. McClintock”), a state agency psychological consultant, reviewed Cianfano's medical record on November 28, 2016, and determined that Cianfano had mild limitations in daily activities, maintaining social functioning, and maintaining concentration, persistence, or pace. (R. 136.) Additionally, he noted that Cianfano had an excellent memory, that any residual cognitive limitation from Cianfano's concussive injury was very mild, and that there was no evidence of cognitive-related limitations in functioning beyond a mild range. (R. 136.) He found that Cianfano could sit with normal breaks for a total of six hours in an eight-hour workday, and that Cianfano did not have visual limitations. (R. 138.) He further noted that Cianfano was able to clean, do occasional outdoor work, and shop. (R. 135).
On September 22, 2017, Cianfano consulted Dr. Jeffrey O. Berman (“Dr. Berman”) and reported insomnia but no significant headaches when he was compliant with his medication. (R. 846.) Dr. Berman reported that Cianfano works on his computer while in bed. (R. 846.)
On October 9, 2017, Cianfano visited Dr. Weintraub for his yearly evaluation. (R. 843.) Cianfano reported that he had persistent headaches but stated that they were much improved with his medication. (R. 843.) He complained of tinnitus and blurred vision but did not have photophobia or phonophobia, and his work-up was normal. (R. 843.) Although his left eye had some marginal intraocular pressure, an evaluation showed no glaucoma. (R. 843.)
Photophobia means “you are very sensitive to [light].” Stephanie Watson, What Is Photophobia, WEBMD, https://www.webmd.com/eye-health/photophobia-facts (last visited Aug. 17, 2023).
Phonophobia means you are “sensitive to loud noises.” Kimberly Goad, Signs of a Migraine That Aren't Headache, WEBMD, https://www.webmd.com/migraines-headaches/signs-of-a-migraine-that-arent-headache (last visited Aug. 17, 2023).
During another visit to Dr. Berman on November 21, 2017, Cianfano reported problems with insomnia and that his memory was not as good as it as before the accident, but that he was doing well and his headaches improved, recurring only occasionally and effectively combatted with Advil. (R. 841-42.) Cianfano also conveyed that, although he had not returned to work, he was trying to track the equity markets. (R. 841.)
On May 22, 2018, Cianfano again visited Dr. Berman for a six-month follow-up. (R. 892-94.) He reported that he still experienced headaches on a daily basis but continued to benefit from his medication, that his headaches were less severe, and that they usually did not require treatment, but, when necessary, he took Advil, which helped. (R. 892.) He alleged problems maintaining his concentration and focus, but his exam revealed normal attention/concentration, memory, comprehension, and recall. (R. 89293.) His neurological and physical exams also appeared normal. (R. 893.)
On July 26, 2018, Dr. Michael Healy (“Dr. Healy”) performed an internal medicine examination after a referral from the Division of Disability Determination. (R. 881.) Cianfano complained of headaches with an aura “perhaps every day,” but he stated that his prescribed medication helped. (R. 881.) Cianfano relayed that he could cook, clean, launder, shop, shower, and bathe himself. (R. 881.) Dr. Healy found that Cianfano's musculoskeletal, neurological, and physical exams were normal. (R. 882-83.) Dr. Healy noted that “[a]t present, [Cianfano] has no physical limitations to activities of daily living.” (R. 883.)
Also on July 26, 2018, Dr. Antiaris performed another consultative psychiatric evaluation. (R. 872-75.) Although Cianfano reported difficulty falling asleep, occasional depression, difficulty retaining information, and difficulty with short-term memory and concentration, Dr. Antiaris found Cianfano's thought process coherent and goal-directed, his attention and concentration intact, his memory skills intact, and his cognitive functioning above-average. (R. 872-74.) Dr. Antiaris found no limitations in Cianfano's ability to understand, remember, and apply simple or complex directions and instructions; no limitations in his ability to use reason and judgment, make work-related decisions, and interact adequately with supervisors, coworkers, and the public; and no limitations in concentration or performing a task at a consistent pace. (R. 874.) Dr. Antiaris concluded that Cianfano had no significant interference with his ability to function on a daily basis and stated that his prognosis was good. (R. 874-75.)
On December 3, 2018, Cianfano saw Dr. Weintraub for a follow-up. (R. 982.) Dr. Weintraub noted no major changes, and Cianfano continued to report improvement for his headaches with medication and that he was going to the gym four to five days a week. (R. 982.) He did, however, complain of headaches after looking at a computer screen. (R. 982.)
Cianfano again visited Dr. Weintraub on June 10, 2019. (R. 981.) Cianfano reported headaches, including an “all night headache” every two weeks. (R. 981.) Dr. Weintraub concluded that “[t]he fact that this has happened over a long period of time now for almost 5 years suggests that this will be a permanent issue.” (R. 981.) Cianfano reported that lowering the brightness on his computer helped. (R. 981.)
Cianfano next visited Dr. Weintraub on October 7, 2019. Cianfano reported decreased frequency and severity of headaches, and that he visited the gym five times a week. (R. 980.) Dr. Weintraub stated that Cianfano “is trying to get his life back” and concluded that “[Cianfano] is capable.” (R. 980.) The record does not reflect any further visits with Dr. Weintraub.
3. Cianfano's Left Knee
After the car accident, Cianfano entered the care of orthopedist Dr. Michael Cushner (“Dr. Cushner”). (R. 595-96.) Cianfano underwent an MRI of his left knee in October 2014. (R. 596.) The MRI showed evidence of a hairline tibial fracture, but no ligament or meniscal injury. (R. 698-99.) A second MRI from December 2014 showed a mild degenerative abnormality of the knee's meniscus. (R. 698.) Dr. Cushner ordered another MRI of Cianfano's left knee in January of 2015, which revealed some mild degenerative changes of the meniscus but that did not amount to a tear. (R. 593.)
On March 25, 2015, Cianfano underwent a left knee arthroscopy with medial and lateral menisectomy. (R. 606-24.) His mobility improved following the surgery and physical therapy. (R. 606-24.)
On December 3, 2015, Cianfano visited Dr. Cushner again for reevaluation. (R. 697-700.) His left knee range of motion was 0-125 degrees and did not exhibit tenderness. (R. 697; see also R. 858 (explaining that 135 degrees of flexion is “normal”).) Cianfano reported doing well since surgery, although he had some pain with stairs and prolonged walking. (R. 697.) Follow-up visits with Dr. Cushner in February (R. 701-04) and March 2016 (R. 703-08) showed no significant changes to Cianfano's left knee. An MRI in May 14, 2016 revealed no fracture and minimal joint effusion. (R. 709.) On June 3, 2016, in another visit with Dr. Cushner, Cianfano received a steroid injection into his left knee. (R. 711-14.)
On June 21, 2016, Cianfano entered the care of Dr. Yasmin Dhar (“Dr. Dhar”) for a first-time evaluation of his left knee, in which Dr. Dhar recommended physical therapy as well as injections. (R. 715-16.) Cianfano returned to Dr. Dhar in July 2016 and August 2016 for steroid injections into his left knee. (R. 717-19.)
Cianfano attended an orthopedic consultation with Dr. Michael Gott (“Dr. Gott”) on March 8, 2017. (R. 857-58.) Dr. Gott noted that Cianfano complained of pain behind the knee and below the patella, that he demonstrated 120 degrees of flexion and 0 degrees of extension, and that he had marked tenderness in the medial joint line and slight tenderness in the lateral joint line. (R. 857-58.) Additionally, an MRI of the left knee demonstrated a full-thickness cartilage defect. (R. 858.) As a result, Cianfano underwent a second arthroscopic procedure on April 12, 2017, this time conducted by Dr. Gott. (R. 855-56.) Cianfano's postoperative visits with Dr. Gott on April 18, 2017, May 24, 2017, July 6, 2017, and August 29, 2017 were unremarkable. (R. 860-67.) On the last of these visits, Cianfano reported no pain and that he had resumed most of his activities. On examination of the left knee, Dr. Gott found no instability and full active and passive range of motion from full extension to almost 145 degrees of flexion and only minimal crepitus.(R. 866.)
“Crepitus is a sound like crackling, grinding, or squeaking in a joint when you move it. Crepitus has many causes. It's often the result of damage to your cartilage and joint tissue.” What to Know About Crepitus in Your Shoulders, WEBMD, https://www.webmd.com/a-to-z-guides/what-to-know-crepitus-in-your-shoulders (last visited Aug. 22, 2023).
On February 27, 2018, Cianfano had his final follow-up with Dr. Gott. Cianfano reported occasional pain in the knee, but Dr. Gott's exam findings were unremarkable. (R. 868-69.) Dr. Gott then cleared him from an orthopedic standpoint. (R. 869.)
B. The 2018 ALJ Hearing Decision And Appeals Council Remand
In the 2018 Hearing Decision, ALJ Singh found that Cianfano was disabled from September 22, 2014 through September 30, 2016, but that his disability ended on October 1, 2016 (R. 147), at which point Cianfano could perform light work. (R. 155-56.)
In remanding the 2018 Hearing Decision, the Appeals Council stated that the ALJ was to resolve two issues. First, the ALJ was to consider the discrepancy between the ALJ's conclusion in the 2018 Hearing that there were no jobs in the national economy that Cianfano could have performed from September 22, 2014 through September 30, 2016 and testimony from the Vocational Expert (“VE”) that an individual of the same age, education, work history, and RFC as Cianfano could have performed work as an inspector, final assembler, and laminator during that time period. (R. 165.) Second, the ALJ was to further develop Cianfano's RFC, particularly with respect to any visual and environmental limitations related to Cianfano's vision loss and migraines. (R. 166.)
Additionally, the Appeals Council explained that in hearing the case de novo, the ALJ would obtain additional evidence concerning Cianfano's impairments; give further consideration to Cianfano's maximum RFC; and, if warranted by the expanded record, obtain evidence from the VE to clarify the effect of the assessed limitations on the jobs that Cianfano could perform. (R. 166.)
C. The 2021 ALJ Hearing Decision
ALJ Singh conducted a new hearing on April 30, 2021, at which Cianfano was again represented by counsel. (R. 111-28.) At the hearing, the VE classified Cianfano's past work as a trader, confirmed that her testimony was consistent with the Dictionary of Occupational Titles (“DOT”), and answered hypotheticals about what work an individual, with the same age, education, and work experience as Cianfano, could perform. (R. 12426.)
After conducting the hearing, ALJ Singh rendered an “Unfavorable” decision, following the five-step sequential analysis. (R. 172-96.) At step one, the ALJ found that Cianfano had not engaged in substantial gainful activity since August 15, 2016. (R. 174.) At step two, the ALJ determined that Cianfano had severe impairments consisting of a left knee meniscus tear and internal derangement status post arthroscopy, postconcussion syndrome, traumatic brain injury, and migraine headache disorder; and non-severe impairments consisting of visual impairments, adjustment disorder with anxiety, and general mental impairment. (R. 174-76.)
ALJ Singh decided at step three that Cianfano did not have an impairment or combination of impairments that meets or equals the severity of the listed impairments for which disability is presumed. (R. 176.) At step four, ALJ Singh concluded that Cianfano had the RFC to perform light work, including sitting up to six hours in an eighthour work day. (R. 177.) The ALJ found certain limitations, however, including that Cianfano was to avoid bright lights, defined as anything above office lighting, and must take breaks for one to two minutes every 30 minutes to look away from the computer screen. (R. 177.) The ALJ then determined that Cianfano was capable of performing his past relevant work as a trader, and, therefore, was not disabled. (R. 183.)
DISCUSSION
Cianfano challenges the Commissioner's decision on two grounds. First, Cianfano faults the ALJ as having been improperly adversarial. Second, Cianfano claims the ALJ's decision is not supported by substantial evidence. Neither claim has merit.
A. The ALJ Was Not Adversarial And Did Not Mislead Cianfano
Cianfano's argument that the ALJ was impermissibly adversarial is twofold: (1) the ALJ misled Cianfano by labeling the 2018 Hearing Decision “Partially Favorable,” “while in fact the decision would have provided no basis for the payment of any benefits whatsoever;” and (2) the ALJ should have advised Cianfano that if he did not appeal, “he would ... forfeit[] any rights to benefits.” (Pl. Mem. at 6-7.) Neither argument withstands scrutiny.
1. Standard For Non-Adversarial SSI Proceedings
An ALJ must conduct disability benefit proceedings in an “informal, non-adversarial manner.” 20 C.F.R. § 416.1400(b). “[S]ocial security benefits cases ‘are not designed to be adversarial.'” Pabon v. Commissioner of Social Security, No. 14-CV-1954, 2015 WL 4620047, at *5 (S.D.N.Y. Aug. 3, 2015), R & R adopted sub nom., Pabon v. Colvin, 2015 WL 5319265 (S.D.N.Y. Sept. 11, 2015) (quoting Donato v. Secretary of Department of Health & Human Services, 721 F.2d 414, 418 (2d Cir. 1983)); see also Moran, 569 F.3d at 112 (“Social Security disability determinations are investigatory, or inquisitorial, rather than adversarial”) (internal quotation marks omitted); Montes v. Saul, 502 F.Supp.3d 832, 845 (S.D.N.Y. 2020) (“well-settled precedent in this Circuit[] hold[s] that SSA proceedings are fundamentally non-adversarial” and “‘the ALJ, unlike a judge in a trial, must [her]self affirmatively develop the record' in light of ‘the essentially non-adversarial nature of a benefits proceeding'”) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)).
Therefore, “the outcome of a proceeding may fairly be questioned when an ALJ displays ‘deep-seated favoritism or antagonism that would make a fair judgment impossible,'” or refuses “‘to weigh or consider evidence with impartiality.'” Pabon, 2015 WL 4620047, at *5 (former quoting Reddy v. Commodity Futures Trading Commission, 191 F.3d 109, 119 (2d Cir. 1999) and latter quoting Sutherland v. Barnhart, 322 F.Supp.2d 282, 292 (E.D.N.Y. 2004)); see also McAninch v. Astrue, 2011 WL 4744411, at *18-19 (W.D.N.Y. Oct. 6, 2011) (finding an ALJ adversarial when they undermined the fundamental fairness of a proceeding by exhibiting apparent hostility and bias).
ALJs, however are “presumed to be unbiased ... and to exercise their decisionmaking authority with honesty and integrity.” Pabon, 2015 WL 4620047, at *5 (citing Schweiker v. McClure, 456 U.S. 188, 195-96, 102 S.Ct. 1665, 1670 (1982) and Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464 (1975)). “‘This presumption can be rebutted by a showing of conflict of interest or some other specific reason for disqualification.'” Maldonado v. Berryhill, No. 16-CV-165, 2017 WL 946329, at *29 (S.D.N.Y. March 10, 2017) (quoting Schweiker, 456 U.S. at 195, 102 S.Ct. at 1670). In situations where a claimant feels that the ALJ did not conduct the proceedings in an unbiased, non-adversarial manner, the “claimant alleging the denial of a fair hearing therefore bears the burden of showing a conflict of interest or some other specific reason for disqualification.” Pabon, 2015 WL 5319265, at *5 (quoting Schweiker, 456 U.S. at 195, 102 S.Ct. at 1670). Cianfano does not meet these standards.
2. The ALJ Was Not Adversarial
Before addressing Cianfano's two arguments as to how the ALJ was adversarial, the Court notes that the ALJ's conduct in this case, generally, does not rise to the level of antagonism or impartiality necessary to warrant remand. Although Cianfano alleges that the Commissioner's “actions are consistent with an attempt to avoid payment of benefits to the Plaintiff” (Pl. Mem. at 7), he does not provide any evidence that the ALJ exhibited a bias, adopted an adversarial tone, or was otherwise hostile in either the hearings or the hearing decisions. Rather, the ALJ properly asked questions during the hearings to develop the record and did not demonstrate a bias against granting Cianfano benefits during them (see generally R. 84-110, R. 111-28), and her hearing decisions do not include hostile, biased, or adversarial language (see generally R. 142-62, 169-90). Indeed, the record does not reflect any adversarial behavior on the part of the ALJ that rises to such a high degree of “antagonism that would make fair judgment impossible.” Pabon, 2015 WL 4620047, at *5 (internal quotation marks omitted).
3. The ALJ's Labeling Of The 2018 Hearing Decision Was Not Misleading
Still, Cianfano argues that the ALJ was adversarial because she misleadingly labeled the 2018 Hearing Decision as “Partially Favorable,” even though “the decision would have provided no basis for the payment of any benefits whatsoever.” (Pl. Mem. at 6.) That argument does not get off the ground because the 2018 Hearing Decision was vacated and remanded. See Uffre v. Astrue, No. 06-CV-7755, 2008 WL 1792436, at *7 (S.D.N.Y. Apr. 18, 2008) (“the Appeals Council vacated the ALJ's first decision. ... Thus, the first decision has no bearing on these proceedings”).
That said, the Court will address the argument on the merits. Both parties adopt the view that Cianfano would not have received any SSI benefits under the 2018 Hearing Decision. (See Pl. Mem. at 6; Def. Mem. at 13.) Assuming, for argument's sake, that they are correct, the ALJ's labeling of the 2018 Hearing Decision as “Partially Favorable” was neither misleading nor adversarial. If anything, the ALJ's categorization conveys the opposite by acknowledging that Cianfano was disabled for a period of time rather than discrediting his application in its entirety. The fact that Cianfano would have received few to no benefits because he filed his application in August 2016 (R. 394-408), the month before the disability ended on September 30, 2016 (R. 147, 154), does not render the ALJ's designation misleading.
The Court questions the assumption that Cianfano would not have received any benefits under the 2018 Hearing Decision. SSI benefits are payable starting the month following the month in which the application was filed. 20 C.F.R. § 416.335 (“When you file an application in the month that you meet all the other requirements for eligibility, the earliest month for which we can pay you benefits is the month following the month you filed the application”). Since Cianfano filed his SSI application in August 2016 (R. 394408), and the ALJ found that Cianfano was under disability through September 30, 2016 (R. 147, 154), the 2018 Hearing Decision would have entitled Cianfano to SSI benefits for the month of September 2016. See Young v. Astrue, No. 08-CV-7244, 2010 WL 5779346, at *1 n.1 (S.D.N.Y. Dec. 29, 2010), R & R adopted, 2011 WL 497764 (S.D.N.Y. Feb. 10, 2011) (“Young first filed a claim for SSI benefits on December 11, 2002. . Therefore, January 1, 2003, is the first possible date that he could have become eligible for benefits”); Talanker v. Barnhart, 487 F.Supp.2d 149, 154 (E.D.N.Y. 2007) (“Mr. Talanker first filed a claim for SSI benefits on March 8, 1993 ., so April 1, 1993 is the first possible date that he could have become eligible for benefits”).
Cianfano also argues that the record “does not in fact support a determination which would find that the Plaintiff was disabled only until September 30, 2016 but miraculously stopped being disabled a day later.” (Pl. Mem. at 6.) The ALJ made no such “miraculous” finding. Rather, she did what an ALJ is required to do when they find that a claimant was disabled for a period of time but improved to the point of not being disabled. See Milliken v. Saul, No. 19-CV-9371, 2021 WL 1030606, at *12 (S.D.N.Y. March 17, 2021) (explaining that, in a medical improvement case in which the plaintiff's condition improves and he is no longer disabled, the ALJ must find that the plaintiff “is no longer disabled from a certain date”); Ritchie v. Saul, No. 19-CV-1378, 2020 WL 5819552, at *16 (S.D.N.Y. Sept. 29, 2020) (same). And, as explained above, the merits of the 2018 Hearing Decision are irrelevant in light of remand.
4. The ALJ's Failure To Advise Was Not Adversarial
As a second indicia that the ALJ was adversarial, Cianfano argues, rather opaquely, that because the ALJ “d[id] not bother to advise [him] of the fact that had he not appealed [the 2018 Hearing Decision], he would have forfeited any right to benefits.” (Pl. Mem. at 6-7.) That argument holds no water. Contrary to Cianfano's contention, the ALJ did not have the duty to advise Cianfano of the consequences of failing to appeal. See Burch v. Commissioner of Social Security, No. 15-CV-9350, 2017 WL 1184294, at *15 (S.D.N.Y. March 29, 2017) (“‘The social security hearing examiner, furthermore, does not act as counsel. He acts as an examiner charged with developing the facts'”) (quoting Richardson, 402 U.S. at 410, 91 S.Ct. at 1432).
To be sure, “[t]he SSA is required to provide notice of how a claimant, especially a claimant [unlike Cianfano] proceeding pro se, may pursue his administrative claims.” Humber v. Commissioner of Social Security, No. 14-CV-5520, 2015 WL 3972270, at *5 (S.D.N.Y. June 29, 2015) (emphasis added). Here, Cianfano not only was represented by counsel at every step of the proceedings (see R. 84, 111, 197-99, 270-271, 294-98, 329-39), but he did in fact receive notice of his right to appeal, the timeframe within which an appeal had to be filed, and the consequences of both appealing and failing to appeal. As explicitly stated on the face of the notice Cianfano received along with the ALJ's 2018 Decision: “If you disagree with my decision, you may file an appeal with the Appeals Council. ... The Appeals Council will consider your entire case. It will consider all of my decision, even the parts with which you agree. Review can make any part of my decision more or less favorable or unfavorable to you. . If you do not appeal and the Appeals Council does not review my decision on its own, my decision will become final.” (R. 14243.) See Escalera v. Commissioner of Social Security, 457 Fed.Appx. 4, 7 (2d Cir. 2011) (finding that agency did not mislead plaintiff to believe that in-person objections at agency office would satisfy SSA appeals process because “its notices plainly stated that he had to make the request in writing, within 60 days”).
Finally, Cianfano's argument is entirely beside the point. Cianfano did appeal the 2018 Hearing Decision, so whatever rights he thought he would forfeit if he did not appeal were in fact preserved. In short, none of Cianfano's arguments, whether considered alone or together, in any way demonstrates that ALJ Singh was improperly adversarial in adjudicating Cianfano's administrative case.
B. The ALJ's Decision Is Supported By Substantial Evidence
Cianfano advances six reasons that the ALJ's 2021 Hearing Decision was not supported by substantial evidence. First, at step three, the ALJ did not properly evaluate whether Cianfano's severe and non-severe impairments met or medically equal a listing. (Pl. Mem. at 8-9.) Second, the ALJ failed to adequately consider Cianfano's headaches. (Id. at 9-10.) Third, the ALJ failed to follow the Appeals Council's directives that she was to include Cianfano's visual and environmental limitations related to his vision loss or migraines in the RFC and identify and resolve any conflicts between the VE's testimony and the DOT. (Id. at 11.) Fourth, the VE failed to properly consider the effects of the impairments suffered by Cianfano on his ability to work in the national economy. (Id.) Fifth, the ALJ's “change[ ]” from the 2018 Hearing Decision to the 2021 Hearing Decision indicates an error of logic. (Id. at 12.) Sixth, Cianfano argues for the first time in reply that the ALJ improperly relied on Cianfano's activities of daily living. (Pl. Reply at 7.) The Court considers each argument in turn.
1. The ALJ Properly Considered The Listings In Step Three
a. Cianfano's Argument
Cianfano argues that the ALJ “ignored certain of the Plaintiff's acknowledged medical conditions which justify a finding of disability.” (Pl. Mem. at 9.) More specifically, the ALJ “did not fully consider the combination of [Cianfano's] severe impairments,” as well as “the combination of [his] severe impairments with an acknowledged impairment which she found not to be severe, namely a mental impairment disorder with anxiety” to meet a listing under Appendix 1 and find Cianfano disabled. (Id. at 9.) This argument reduces to the contention that the ALJ did not properly carry out step three of the five-step inquiry, where the ALJ must determine whether the claimant's impairment or combination of impairments meet or medically equal the criteria of a listed impairment. See 20 C.F.R. §§ 416.920(a)(4)(iii), (d).
But even though Cianfano bears the burden at step three, Lopez v. Berryhill, 448 F.Supp.3d 328, 346 (S.D.N.Y. 2020), he neither identifies any listing from Appendix 1, the criteria of which he believes are met, nor points to any medical findings in the record that “equal in severity to all the criteria for the one most similar listed impairment.” Moore, 2022 WL 3910600, at *8 (citing Sullivan v. Zebley, 493 U.S. 521, 531, 110 S.Ct. 885, 891, (1990)); accord Powell v. Berryhill, No. 17-CV-8922, 2019 WL 1416990, at *5 (S.D.N.Y. March 28, 2019) (a claimant does not meet his burden if he “does not point to any medical finding suggesting that his combination of impairments meets or medically equals [a] [l]isting”). Nonetheless, the Court will proceed to address the ALJ's analysis.
b. The ALJ's Conclusions At Step Three
The ALJ did what was required of her at step three, finding that: “[Cianfano] does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in ... Appendix 1”; “[t]he record fails to establish that [Cianfano]'s impairments, considered singly and in combination, meet or medically equals the criteria of any listed impairment”; “[t]he medical evidence of record does not document signs, symptoms, and/or laboratory findings indicating an impairment or combination of impairments of such severity to meet the criteria of any listed impairment”; and that “no treating, examining, or non-examining medical source has mentioned findings or rendered an opinion to support a finding that [Cianfano]'s impairments, singly or in combination, medically equal the criteria of any listed impairment.” (R. 176.)
Further, ALJ Singh identified specific, potentially-relevant listed impairments and concluded that Cianfano's (1) left knee impairment did not meet listing 1.17 for reconstructive surgery or surgical arthrodesis of a major weight-bearing joint; (2) left knee impairment did not meet listing 1.18 for abnormality of a major joint in any extremity; (3) traumatic brain injury did not meet listing 11.18 for traumatic brain injury; and (4) postconcussion syndrome and headache disorder did not, in combination, meet any of the listings under 11.00 for neurological disorders. (R. 176-77.) While the ALJ's analysis supporting these conclusions is brief, they may be upheld “‘so long as we are able to look to other portions of the ALJ's decision and to clearly credible evidence in finding that his determination was supported by substantial evidence.'” Conetta v. Berryhill, 365 F.Supp.3d 383, 396 (S.D.N.Y. 2019) (quoting Salmini v. Commissioner of Social Security, 371 Fed.Appx. 109, 112 (2d Cir. 2010)); see also Blau v. Berryhill, 395 F.Supp.3d 266, 280 (S.D.N.Y. 2019) (collecting cases). As the Court explains below, substantial evidence elsewhere in the ALJ's opinion supports those conclusions.
The ALJ did not ignore Cianfano's other impairments. Having determined that Cianfano's visual impairments, adjustment disorder with anxiety, and general mental impairment were non-severe at step two (R. 175-76), she did not need to consider whether those impairments, singly, met or medically equaled a listing under Appendix 1 at step three. 20 C.F.R. § 416.920(a)(4)(d)(2). The ALJ did, however, clearly consider the non-severe impairments in combination with Cianfano's severe impairments to determine whether the combination met or equaled a listing. That is demonstrated both by her explicit statements in step three to that effect, stated above, and her analysis in step four, discussed below.
c. Evidence Discussed At Step Four Supports The ALJ's Conclusions At Step Three
The ALJ's analysis at step four, with its many citations to the record, supports the ALJ's conclusions in step three that no combination of Cianfano's impairments meets or medically equals listings 1.17, 1.18, and 11.18 or any listings under 11.00. The Court considers each of these listings in turn.
Listing 1.17
The criteria for listing 1.17 for reconstructive surgery or surgical arthrodesis of a major weight-bearing joint are: (1) history of reconstructive surgery or surgical arthrodesis of a major weight-bearing joint; and (2) impairment-related physical limitation of musculoskeletal functioning that has lasted, or is expected to last, for a continuous period of at least 12 months; and (3) a documented medical need for a walker, bilateral canes, or bilateral crutches, or a wheeled and seated mobility device involving the use of both hands. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 1.17. A documented medical need means “that there is evidence form a medical source that supports [claimant's] need for an assistive device ... for a continuous period of at least 12 months. Id. § 1.00(C)(6)(a).
At step four, ALJ Singh discusses Cianfano's orthopedists' diagnoses of his left knee impairment. (R. 179-80.) More specifically, she goes through his visits and exams with Dr. Cushner from October 2014 through September 2016 (R. 179; see also R. 59596, 606-25, 697-709, 711-14), Dr. Khaimov in December 2016 (R. 180, see also R. 91112), and Dr. Gott from March 2017 through February 2018 (R. 180; see also R. 857-58, 860-69). These doctors' opinions do not mention that Cianfano required a medically necessary assistive device as per the third criteria of listing 1.17. (See generally R. 59596, 606-25, 697-709, 711-14, 857-58, 860-69, 911-12). Nor does the record reflect that Cianfano used such a device, except for crutches and a cane briefly after his surgeries. (R. 97; see also R. 607-15 (indicating that Cianfano was walking without any assistive device by September 2015, i.e., less than 12 months after his first surgery in March 2015); R. 864, 867 (indicating that he was walking without any assistive device by July 2017 and “is cleared for basketball starting in October,” i.e., less than 12 months after his second surgery in April 2017.)
Therefore, based on the ALJ's analysis in step four, there is no possible combination of Cianfano's impairments that together could meet listing 1.17. See Whitmore v. Kijakazi, No. 20-CV-08435, 2022 WL 976964, at *9 (S.D.N.Y. March 31, 2022) (upholding the ALJ's decision that the plaintiff did not have spinal cord disorder as defined by listing 11.08 because, among other things, he did not require any assistive device); MacLean v. Commissioner of Social Security, No. 16-CV-3270, 2017 WL 4082797, at *7 (S.D.N.Y. Sept. 14, 2017) (finding that because the record showed that “Dr. Bhanusali also recommended that MacLean use a cane or assistive device while walking or standing, but not two devices,” i.e., that would involve the use of both hands, “the record does not support a finding that MacLean's knee impairment was severe enough that he could not ambulate effectively as defined by the Listings” under section 1.00 for musculoskeletal disorders); Fluitt v. Kijakazi, No. 22-CV-0160, 2023 WL 4896486, at *1 n.1 (W.D. Pa. July 31, 2023) (“While acknowledging Plaintiff's use of a cane, [the ALJ] emphasized that there was no evidence Plaintiff required a bilateral cane or walker and that he therefore did not meet the criteria of [listing 1.17 among others] that required the inability to use at least two extremities. ... Accordingly, the Court finds that the ALJ applied the proper legal standards and that substantial evidence supports her findings”).
Listing 1.18
Listing 1.18 is for abnormality of a major joint in any extremity. This listing requires: (1) chronic joint pain or stiffness; and (2) abnormal motion, instability, or immobility of the affected joint; (3) anatomical abnormality of the affected joint noted on (a) physical examination or (b) imaging; and (4) impairment-related physical limitation of musculoskeletal functioning lasting for a continuous period of at least 12 months and medical documentation of (a) a need for a walker, bilateral canes, or bilateral crutches or a wheeled and sealed mobility device involving the use of both hands, (b) an inability to use on upper extremity to independently initiate, sustain, and complete work-related activities involving fine and gross movements, and a documented medical need for a onehanded, hand-held assisted device, or (c) an inability to use both upper extremities to the extent that neither can be used to independently initiate, sustain, and completed work-related activities involving fine and gross movements. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 1.18.
At step three, ALJ Singh noted that Cianfano “has provided evidence of chronic joint pain/stiffness, abnormal motion of the affected joint(s), and anatomical abnormalities on physical examinations and/or imaging, with impairment related limitations that have lasted for a continuous period of at least 12 months” (R. 176), thereby suggesting that Cianfano meets criteria (1)-(4) of listing 1.18. The ALJ also found, however, that “there is no evidence that [Cianfano] has 1) required a medically necessary assistive device involving the use of both hands; or 2) required a medically necessary one-handed, handheld assistive device, or a wheeled or seated mobility device involving the use of one hand, affecting the ability to use the other hand to initiate or sustain fine and gross hand movements” (R. 176-77) (emphasis in original), meaning that Cianfano does not in fact satisfy the fourth criterion required to meet listing 1.18.
Support for the ALJ's statement in step three appears in her step four analysis. There, the ALJ points to: an MRI from October 2014 showing evidence of a hairline fracture of the tibia and MRIs from January 2015 and May 2016 showing mild degenerative changes (meeting criterion (3)) (R. 179; see also R. 593, 596, 709); exams with Dr. Cushner from March 2015, November 2015, May 2016, and September 2016 in which either Cianfano reported soreness or pain, or his left knee's flexion was less than the standard 135 degrees (meeting criteria (1) and (2)) (R. 179; see also R. 595-96, 70914); an exam with Dr. Khaimov from December 2016 in which Dr. Khaimov reported Cianfano ambulating with a limp (meeting criterion (2) and the first part of (4)) (R. 180; see also R. 911-12); and an exam with Dr. Gott from March 2017 in which Cianfano reported pain and stiffness and his left knee's flexion again was less than the standard 135 degrees (meeting criteria (1), (2), and part of (4)) (R. 180; see also R. 857-58). However, in none of these exams did the doctors indicate that Cianfano meets the remaining criteria of the fourth criteria, i.e., use of a medically necessary assistive device or an inability to use upper extremities. Similar to listing 1.17, then, based on these doctors' reports from the record cited in the ALJ's analysis in step four, there is no possible combination of Cianfano's impairments, whether considering only severe or combining severe and non-severe, that could meet listing 1.18.
Listing 11.18
The ALJ found at step two that traumatic brain injury was one of Cianfano's severe impairments, but at step three found that Cianfano did not meet listing 11.18 for traumatic brain injury. (See R. 174-177.) While that may seem contradictory, it is not. Comparing the criteria for listing 11.18 against Cianfano's doctors' diagnoses of his neurological impairments makes it clear that he does not meet the listing. The criteria for listing 11.18 are: (1) disorganization of motor function in two extremities, resulting in an extreme limitation in the ability to stand up from a seated position, balance while standing or walking, or use of the upper extremities, persisting for at least three consecutive months after the injury; or (2) marked limitation in physical functioning and in one of the four paragraph B criteria of mental functioning, persisting for at least three consecutive months after injury. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 11.18.
A “marked” limitation is the “fourth point on a five-point scale consisting of no limitation, mild limitation, moderate limitation, marked limitation, and extreme limitation.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 11.00(G)(2). In determining whether a claimant has a marked limitation in mental functioning, the following four broad functional areas, known as the “paragraph B” criteria, are considered: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. Id. § 11.00(G)(3)(b).
The evidence reviewed by the ALJ in her decision, particularly the results of Cianfano's evaluation by orthopedists and neurologists, shows that Cianfano does not meet either criteria. None of his consultations with his orthopedists suggest that he had any difficulty in the functioning of two extremities (criterion (1) of listing 11.18). (See generally R. 595-96, 606-25, 697-709, 711-14, 857-58, 860-69, 911-12). That alone precludes a finding that Cianfano's impairments meet or medically equal listing 11.18.
As for the second criteria, no doctor assessed Cianfano as having a marked limitation in either physical functioning or any of the mental functioning criteria. In her decision, the ALJ discussed Cianfano's consultations with Dr. Silverman and Dr. Weintraub in early 2015 in which they opined that Cianfano experienced memory loss but that his neurological exams were grossly normal (R. 178, 629-31, 637); Dr. Seliger in January 2015 in which Cianfano reported memory, organizational problems, and worry but, upon neurological exam, his mental status was found to be only mildly abnormal and generally within normal limits (R. 178, 897-99); Dr. Weintraub and Dr. Forman in early 2016 in which Cianfano reported brain fog, an inability to concentrate on printed materials or screens, and memory difficulties (R. 178, 626, 628, 665); Dr. Weintraub in November 2016, October 2017, December 2018, and June 2019 in which Cianfano's neurological exams were normal (R. 178-79, 784-85, 834-35, 981-82); and Dr. Berman in May 2018 in which, again, Cianfano's neurological exams were normal (R. 179, 892-94).
Although the ALJ states that Cianfano “returned to Dr. Weintraub for a yearly evaluation in November 2017” (R. 178-79), her citation is to an evaluation that took place in October 2017.
ALJ Singh also evaluated the “opinion evidence” of Cianfano's psychologists. (R. 181.) The ALJ gave some weight to Dr. McClintock's November 2016 opinion that Cianfano had only mild difficulties in maintaining social functioning, as well as in maintaining concentration, persistence, or pace, because the opinion is “consistent with the unremarkable clinical record and benign mental status and neurological exams throughout the record.” (R. 181, see R. 135-38.) Although Dr. Seliger in January 2015 opined that Cianfano would probably have some difficulties working at full performance as a trader (R. 897-99), the ALJ afforded the opinion little weight because “Dr. Seliger's opinion does not provide any specific assessment of the degree to which [Cianfano] would be limited” and “Dr. Seliger noted his own exam was ‘brief' and a full neuropsychological evaluation should be performed to make definitive statements on the issue” (R. 182).
In contrast, ALJ Singh gave significant weight to the opinions of Dr. Antiaris (R. 182-83), who assessed in October 2016 that Cianfano had at most mild limitations in some of the paragraph B criteria (R. 763-67), and in July 2018 opined that Cianfano had no limitations in any of the criteria (R. 872-75). The ALJ found that Dr. Antiaris's opinions were consistent with the doctor's own clinical observations of Cianfano and were also well supported by Cianfano's neurological treatment records (R. 182-83). As no doctor assessed Cianfano as having a marked limitation in understanding, remembering, or applying information; interacting with others; concentrating; or adapting or managing oneself, the ALJ had ample basis to conclude that Cianfano's severe and non-severe impairments, alone or in combination, did not meet or medically equal listing 11.18.
Any Listings Under 11.00
For the same reason, ALJ Singh's conclusion that no combination of Cianfano's impairments meets or medically equals any listing under 11.00 for neurological disorders is supported by substantial evidence. That is because all of those listings similarly require a “marked” limitation in physical and mental functioning. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 11.01 (identifying the category of impairments under neurological disorders and their criteria.) In sum, the ALJ's determination that Cianfano does not satisfy any of the listings is supported by substantial evidence.
2. The ALJ Adequately Considered Cianfano's Headaches
Cianfano next argues that ALJ Singh “failed to adequately consider the principal impairment from which [he] presently suffers, namely, continuous headaches,” which is significant because “a primary headache disorder, alone or in combination with another impairment, may medically equal a listing.” (Pl. Mem. at 9-10, citing to SSR 19-4p, 2019 WL 4169635 (Aug. 26, 2019) (“SSR 19-4P”).) Primary headache disorder is not a listed impairment. However, as pointed out by Cianfano, it may medically equal a listing alone or in combination with other impairments. (Pl. Mem. at 10; see also SSR 19-4P.) SSR 19-4P gives the following example: “While uncommon, a person with a primary headache disorder may exhibit equivalent signs and limitation to those detailed in listing 11.02 [for epilepsy] ..., and we may find that his or her [medically determinable impairments) medically equals the listing.” SSR 19-4P, at *7. Therefore, while a primary headache disorder may medically equal a listing alone or in combination with other impairments, it, either singly or in combination, must still equal the criteria for a listed impairment.
“Primary headaches occur independently and are not caused by another medical condition,” whereas “[s]econdary headaches are symptoms of another medical condition such as fever, infection, high blood pressure, stroke, or tumors.” SSR 19-4P, at *3. The ALJ refers to Cianfano's headache impairment as “migraine headache disorder.” (R. 174.) Under SSR 19-4P, “primary headache disorder ... include[s] migraine headaches.” SSR 19-4, at *3.
The ALJ explicitly considered Cianfano's headache disorder in step three and found that, considered alone and in combination with other impairments, it did not “reach[] the level of severity contemplated in any of the listings [under Appendix 1], with specific consideration given to the listings under 11.00.” (R. 177.) As explained above, that finding is well supported. The neurological and psychological assessments demonstrate that, no matter what combination of Cianfano's impairments are considered, he does not meet any listing under 11.00 for neurological disorders.
Two of Cianfano's additional arguments warrant brief mention. First, Cianfano faults the ALJ for failing to properly consider several references to his headaches in the medical record. (Pl. Mem. at 9-10.) But “an ALJ is not required to discuss every piece of evidence submitted” and “[a]n ALJ's failure to cite specific evidence does not indicate that such evidence was not considered.” Brault, 683 F.3d at 448 (internal quotation marks omitted). In any event, the purported omission is harmless and could not “have affected the disposition of the case”, see Lopez, 448 F.Supp.3d at 341 (citing Kohler, 546 F.3d at 265), because, as explained above, the headache disorder, whether considered alone or in combination with other impairments, does not meet or medically equal a listing. Second, in reply, Cianfano argues that the ALJ failed to take into account that, although his headaches ultimately lessened, they previously were more severe. (Pl. Reply at 5.) But even when Cianfano's headaches were “more severe,” i.e., before July 2017, they still did not cause more than a mild limitation in any of four paragraph B criteria.
3. The ALJ Properly Followed The Directives Of The Appeals Council's Remand Order
Cianfano claims that ALJ Singh “failed to properly follow the directives of the Appeals Council [on] what issues to consider on remand”; specifically, the directive to determine Cianfano's RFC with regard for his “visual [and] environmental limitations relating to [his] vision loss or migraines,” as well as the directive to “identify and resolve conflicts between [t]he occupational evidence provided by the vocational expert and information in the [DOT] and the Selected Characteristics of Occupations” (the “SCO”). (Pl. Mem. at 11.) Neither argument has merit.
a. The ALJ Determined Cianfano's Visual And Environmental Limitations In Formulating His RFC
In remanding the case following the 2018 Hearing Decision, the Appeals Council explained that the RFC determined by the ALJ did not include “visual or environmental limitations related to [Cianfano's] vision loss or migraines (e.g. work that does not require fine visual acuity or work that does not require exposure to loud noise).” (R. 166.) The Appeals Council therefore indicated that “further consideration of [Cianfano]'s [RFC] is warranted.” (Id. (emphasis added).) The Appeals Council directed the ALJ to “[g]ive further consideration to [Cianfano]'s maximum [RFC] and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations.”(R. 166.) The ALJ did what the Appeal Council directed her to do: she considered Cianfano's visual and environmental limitations in formulating his RFC.
Cianfano mischaracterizes the Appeals Council's order as directing the ALJ “that a determination of residual functional capacities had to include visual or environmental limitation relating to [Cianfano's] vision loss or migraines.” (Pl. Mem. at 11 (emphasis added).)
For instance, with regard to environmental limitations, the ALJ discussed Dr. Healy's consultative exam from July 2018 in which Dr. Healy noted that Cianfano “could frequently tolerate environmental conditions, such as noise, extreme temperatures, and hazards.” (R. 182, see R. 888.) The ALJ afforded that portion of the opinion “less weight,” because it “does not take into consideration [Cianfano]'s ongoing symptoms of his post-concussive syndrome and headache disorder.” (R. 182.)
The ALJ also considered several instances in which Cianfano reported concerns about his vision to doctors, including the impact of environmental conditions such as lighting. The ALJ took account of Cianfano's consultations with Dr. Silverman and Dr. Weintraub in early 2015 when he reported difficulties with blurry vision and photophobia; Dr. Weintraub in early 2016 when Cianfano reported vision problems, symptoms of visual confusion, blurred vision, and an inability to concentrate on printed materials or screens; Dr. Weintraub in November 2017 when he reported experiencing blurred vision but denied photophobia; and Dr. Weintraub in June 2019 when he reported that he was avoiding triggers, such as bright lights on the computer screen. (R. 178-79.)
Giving due consideration to those concerns, the ALJ concluded that “[d]ue to residual headaches and other neurological symptoms of a post-concussion syndrome, [Cianfano] must also avoid bright lights and prolonged exposure to computer screens without breaks.” (R. 183.) Then, in formulating Cianfano's RFC, the ALJ expressly included the limitations that Cianfano “is to avoid bright lights, defined as anything above office lighting, and must take a break for one to two minutes every 30 minutes to look away from computer screen (while not being off-task).” (R. 177.) The ALJ thus considered and accounted for visual and environmental limitations in determining Cianfano's RFC.
b. The VE Testimony Did Not Conflict With The DOT
Despite Cianfano's claim to the contrary, the ALJ fulfilled her obligation to identify and resolve any conflicts between the VE's testimony and the DOT or SCO.
At steps four and five of the five-step inquiry when ALJs assess what jobs a claimant can perform with his impairments, they “rely primarily on the DOT (including its companion publication, the SCO) for information about the requirements of work in the national economy,” and they “also use VEs ... at these steps to resolve complex vocational issues.” SSR 00-4P, 2000 WL 1898704, at *2 (Dec. 4, 2000) (“SSR 00-4P”).
The Second Circuit in Lockwood v. Commissioner of Social Security Administration clarified that if an ALJ “consider[s] the testimony of [VEs] . she must be alert to the possibility of ‘apparent unresolved conflict[s]' between the testimony and the [DOT]” and therefore has “‘an affirmative responsibility to ask about any possible conflict . and elicit a reasonable explanation for [any such] conflict before relying on the [vocational expert's testimony].'” 914 F.3d 87, 91 (2d Cir. 2019) (quoting SSR 00-4P at *2, *4); see also Gibbons v. Commissioner of Social Security, No. 22-2730, 2023 WL 3830774, at *2 (2d Cir. June 6, 2023) (“Under Lockwood, ALJs are required to obtain a reasonable explanation for any apparent - even if non-obvious - conflict between the [DOT] and a [VE]'s testimony”) (internal quotation marks omitted). “Absent such an inquiry, the [ALJ] lacks a substantial basis for concluding that no such conflicts in fact exist.” Lockwood, 914 F.3d at 93 (emphasis in original).
In the 2021 hearing, ALJ Singh expressly instructed the VE “that if you give testimony that conflicts with the [DOT], you must state that conflict and the basis of your opinion.” (R. 124.) The VE agreed to do so. (R. 124.) Additionally, at the end of the VE's testimony, after she had identified work in the national economy that Cianfano could perform, the ALJ directly asked whether her testimony “has been consistent with the [DOT] and SCO,” to which the VE responded affirmatively, “[c]onsistent with the [DOT] and my expertise and experience and education and placing people in jobs and working with employers.” (R. 126.)
Although the VE did not expressly call out the SCO in addition to the DOT, the SCO is a “companion publication” to the DOT, see SSR 00-4P, at *1, and “treated as part of the DOT,” Hessie W. v. Commissioner of Social Security, No. 20-CV-843, 2022 WL 178535, at *7 (W.D.N.Y. Jan. 20, 2022) (internal quotation marks omitted). Accordingly, the Court infers that the VE confirmed the absence of a conflict with respect to both publications.
ALJ Singh thus fulfilled her responsibility to ask about any possible conflict between the VE's testimony and the DOT and SCO. And, because the VE did not identify one and because there was no apparent conflict, the ALJ had no further responsibility to elicit a reasonable explanation for any such conflict. Cf. Salati v. Saul, 415 F.Supp.3d 433, 448 (S.D.N.Y. 2019) (finding that “any error in the [ALJ's] failure to ask the VE whether the VE's testimony was in conflict with the DOT does not require remand under Lockwood” because claimant “does not identify any apparent conflict between the VE's testimony and the DOT”); Smith v. Colvin, No. 16-CV-51, 2017 WL 281736, at *8 (D. Vt. Jan. 23, 2017) (finding that “the ALJ's failure to inquire as to any possible conflicts between the VE's testimony and the DOT constituted at most harmless error” because the claimant “has not identified a conflict between the VE's testimony and the DOT”).
Cianfano's argument, then, that the ALJ did not follow the Appeals Council's directive to identify and resolve conflicts between the VE's testimony and the DOT and SCO does not withstand scrutiny.
4. The VE Properly Considered The Effects Of Cianfano's Impairments On His Ability To Work In The National Economy
Cianfano next argues that, at the 2021 Hearing, the VE “failed to properly consider the effects of the impairments suffered by the Plaintiff on his ability to work in the national economy.” (Pl. Mem. at 11.) Cianfano also faults the VE for failing to “indicate what exhibits were reviewed.” (Id.) Both arguments are readily dispensed with.
The first argument is a moot point. The ALJ concluded the five-step inquiry at step four where she determined that Cianfano was capable of performing his past work as a trader. (R. 183.) Having found that Cianfano could perform his past work, there was no need to continue to the fifth step of the sequential analysis and evaluate whether Cianfano could perform other work in the national economy. See 20 C.F.R. § 416.960(b)(3).
The second argument is frivolous. The ALJ asked the VE whether “you examined the exhibits given to you before the hearing and listened to [Cianfano's] testimony,” to which the VE answered “Yes.” (R. 124.) Cianfano does not cite to any authority requiring that a VE must further specify the exhibits they reviewed. Moreover, the VE's testimony primarily was based on the hypotheticals posed by the ALJ, together with the DOT and SCO. Nothing in the record suggests there being some secret evidence relied upon by the VE of which the parties were not aware.
Once again, Cianfano throws out sundry arguments without development. First, Cianfano takes issue with the fact that the VE relied on the DOT which was “published in 1977 and thus out of date.” (Pl. Mem. at 11.) That argument may have merit but Cianfano offers no proof for it here. Rather, “[c]ourts in this Circuit have noted that the DOT is outdated, but ‘continue to consider the DOT a permissible source for disability adjudications.'” Byrd v. Kijakazi, No. 20-CV-4464, 2021 WL 5828021, at *19 (S.D.N.Y. Nov. 12, 2021), R & R adopted sub nom., 2021 WL 5827636 (S.D.N.Y. Dec. 7, 2021) (quoting Vicari v. Colvin, No. 13-CV-7148, 2016 WL 11482254, at *22 (S.D.N.Y. June 22, 2016), R & R adopted, 2016 WL 5660391 (S.D.N.Y. Sept. 30, 2016)); see also 20 C.F.R. § 416.966(d) (“[w]hen we determine that unskilled, sedentary, light, and medium jobs exist in the national economy . we will take administrative notice of reliable job information available from various governmental and other publications” including the DOT). Second, without any explanation, Cianfano asserts that “it is significant that [the VE] recognized that if a person's impairments required him to take frequent work breaks (1015%) or require special accommodations, jobs would not exist in the economy.” (Pl. Mem. at 11.) That statement is not accurate. The VE testified that a hypothetical claimant with Cianfano's limitations could perform the work of a trader if he only needed to be off task for 10 percent of the time, but not if he needed more time off from the task, such as 15 percent. (R. 125-26.)
5. Cianfano's Argument That The ALJ Improperly Changed Positions In The 2021 Hearing Decision Lacks Merit
Cianfano claims that the ALJ's 2021 Hearing Decision cannot stand because the ALJ “changed her position” from her 2018 Hearing Decision in which she found that Cianfano was disabled from September 22, 2014 through September 30, 2016 to her 2021 Hearing Decision in which she found no disability. (Pl. Mem. at 12.) Cianfano poses the question “how could the ALJ have determined that Plaintiff was disabled up until September 30, 2016 as she did in 2018 and now find, on the same facts and with the same exhibits for that period, that Plaintiff was not disabled during that period?” and answers “There is no logical basis for this finding.” (Id.) That is a reasonable question. As explained above, however, when “the Appeals Council vacate[s] [a] previous [ALJ] decision[] ... [it] ha[s] no bearing [the second].” See Gittens v. Astrue, No. 12-CV-3224, 2013 WL 4535213, at *8 (S.D.N.Y. Aug. 26, 2013) (citing Uffre, 2008 WL 1792436, at *7). As directed by the Appeals Council, the ALJ undertook a de novo review, and did so on a supplemented record. That ALJ Singh came to a different conclusion with respect to the earlier period is of no moment.
6. The ALJ Properly Considered Cianfano's Daily Living Activities
For the first time in reply, Cianfano introduces a new argument that the ALJ improperly “uses claims of Plaintiff's activities in daily living to try to establish a lack of disability.” (Pl. Reply at 7.) Cianfano asserts, without citation to authority, that “the ability to perform daily living activities does prove a capacity to perform work activities when a person is faced with severe and non-severe impairments which both separately and collectively affect such performance.” (Id.) The Court presumes that the foregoing sentence was meant to say “does not prove” instead of does prove.
The fact that Cianfano raised this argument for the first time in reply is ground alone to disregard it. Harrison v. Commissioner of Social Security, No. 20-CV-5282, 2022 WL 1289357, at *10 (S.D.N.Y. Apr. 29, 2022) (“The law in the Second Circuit is clear that arguments or requests for relief raised for the first time in reply briefs need not be considered”) (internal quotation marks omitted); accord Clubside, Inc. v. Valentin, 468 F.3d 144, 159 n.5 (2d Cir. 2006); Patterson v. Balsamico, 440 F.3d 104, 113 n.5 (2d Cir. 2006).
But even considering the argument on its merits does not lead to a different result. The applicable regulations require an ALJ to consider a claimant's activities of daily living. 20 C.F.R. § 416.929 provides that “[i]n determining whether you are disabled, [an ALJ] considers] ... all of your statements about your symptoms, such as pain, and any description your medical sources or nonmedical sources may provide about how the symptoms affect your activities of daily living and your ability to work.” 20 C.F.R. § 416.929(a).
Courts thus regularly uphold an ALJ's reliance on a claimant's ability to perform certain daily activities as inconsistent with the extent of disability claimed. See, e.g., Dianne H. v. Kijakazi, No. 21-CV-6235, 2022 WL 17251583, at *6 (S.D.N.Y. Nov. 28, 2022) (“the ALJ reasonably found Plaintiff's complaints of totally disabling pain and limitation inconsistent with her activities of daily living, which included light household chores, personal care, and driving short distances”); Rios v. Kijakazi, No. 20-CV-4369, 2022 WL 3928565, at *10 (S.D.N.Y. Aug. 8, 2022), R & R adopted, 2022 WL 3927889 (S.D.N.Y. Aug. 31, 2022) (“it was appropriate for the ALJ to consider evidence of Plaintiff's activities of daily living in deciding to discount aspects of Plaintiff's testimony, and this evidence supports the ALJ's RFC determination”); Sagrario M. v. Commissioner of Social Security, No. 20-CV-10027, 2022 WL 1239655, at *7 (S.D.N.Y. Apr. 27, 2022) (“the ALJ reasonably found Plaintiff's complaints of disabling pain and limitation inconsistent with her activities of daily living, which included some self-care, simple household chores, shopping, and managing money”); Joseph Eugene F. v. Commissioner of Social Security, No. 20-CV-04356, 2022 WL 355918, at *6 (S.D.N.Y. Feb. 7, 2022) (“evidence that a plaintiff is capable of participating in various activities of daily living despite allegations of severe pain can support a determination that a plaintiff can perform sedentary work”) (internal quotation marks, citation, and brackets omitted).
That is exactly what ALJ Singh did in her 2021 Hearing Decision, explaining:
[T]he claimant has described activities of daily living that are not as limited as one would expect given his allegations of totally disabling symptoms. In the claimant's function report and statements made to the consultative examiners, he indicated that following his accident he was still able to perform self-care tasks, such as bathing and dressing himself. He reported that he did not prepare meals, but was able to shop for groceries and essentials, clean around the house,
and do occasional outdoor work. He was able to attend doctors' appointments and physical therapy regularly ... . Additionally, the claimant's hearing testimony reflects that with appropriate medical treatment, he experienced significant improvement in his daily functioning. He testified that while he does still receive some assistance from his parents to manage his bills and finances, he is able to do these things independently. He became able to do more things around the house while recovering from his surgeries and brain injury. He testified that while he was getting headaches daily, now he gets them a couple times per week and they are fairly well-controlled with medication. He stated he began driving again after his second knee surgery. He has also been able to engage in hobbies, such as a working out and going for walks(R. 180-81.) The ALJ's assessment is balanced, recognizing both what supports Cianfano's claims and what does not.
To be sure, an ALJ may err in basing a disability finding on the claimant's ability to perform certain basic activities of daily living. See, e.g., Stellmaszyk v. Berryhill, No. 16-CV-9609, 2018 WL 4997515, at *25 (S.D.N.Y. Sept. 28, 2018) (“courts have recognized that a claimant's ability to engage in certain life activities . does not necessarily mean that the claimant is capable of meeting the full requirements of sedentary work”); Woodward v. Apfel, 93 F.Supp.2d 521, 529 (S.D.N.Y. 2000) (“a claimant's ability to engage in self-care and other domestic activities does not by itself establish that the claimant is not disabled”). But each case is context specific. Cianfano does not identify any activity on which the ALJ improperly relied or any particular conclusion that the ALJ made based on such activity that was improper, and the Court discerns none.
CONCLUSION
For the reasons stated above, pursuant to sentence four of 42 U.S.C. § 405(g), Cianfano's motion should be DENIED, and the Commissioner's motion should be GRANTED.
DEADLINE FOR OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Mary Kay Vyskocil, U.S.D.J., United States Courthouse, 500 Pearl Street, New York, NY 10007, and to the Chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, NY 10007. Failure to file timely objections will result in a waiver of objections and will preclude appellate review.
SO ORDERED.