Opinion
6:21-cv-01138-MAD-TWD
02-10-2023
DEZAREA W., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
DEZAREA W., PLAINTIFF, PRO SE SOCIAL SECURITY ADMINISTRATION JESSICA RICHARDS, ESQ. OFFICE OF THE GENERAL COUNSEL Counsel for Defendant
DEZAREA W., PLAINTIFF, PRO SE SOCIAL SECURITY ADMINISTRATION JESSICA RICHARDS, ESQ. OFFICE OF THE GENERAL COUNSEL Counsel for Defendant
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
Dezarea W. (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security (“Defendant” or “Commissioner”) denying her application for disability insurance benefits (“DIB”). (Dkt. No. 1.) Plaintiff did not consent to the jurisdiction of a Magistrate Judge. (Dkt. No. 5.) The matter was referred to the undersigned for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Both parties filed briefs, which the Court treats as cross-motions for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure in accordance with General Order 18. (Dkt. Nos. 15, 16.)
For the reasons set forth below, the Court recommends Plaintiff's motion for judgment on the pleadings be granted, Defendant's motion for judgment on the pleadings be denied, and the case be remanded to the Commissioner for further administrative proceedings.
I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff was born in 1987 and has completed cosmetology school and two years of college. (Administrative Transcript at 120, 287.) She has previously worked as a cosmetologist, customer service representative, and sales associate. (T. 288.) Plaintiff has not worked full-time since 2015 but has worked as a per diem school district substitute since 2018. (T. 45, 288.)
The Administrative Transcript is found at Dkt. No. 10. Citations to the Administrative Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein will be used rather than the page numbers the Court's CM/ECF electronic filing system assigns. Page references to other documents identified by docket number are to the original page numbers at the bottom of the page instead of the pagination generated by CM/ECF. Unless noted, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
On November 12, 2015, Plaintiff was in a car accident. (T. 44.) Since the accident, she developed hip and shoulder pain which required surgical intervention. (T. 387-89, 708-10.) On November 1, 2017, Plaintiff underwent surgery to correct a large labral tear in her right hip. (T. 378, 387-89.) Her hip initially improved but has since deteriorated. (T. 52, 390, 393-94, 409-11, 721-22, 728-29, 731-33.) Plaintiff's shoulder surgery took place on July 9, 2019. (T. 52-53, 708-10.) Plaintiff testified her shoulder was “better” since her surgery in July, but she tries not to push her shoulder too hard or lift too much on her right side so as not to hurt it more. (T. 51.) It is still difficult for her to reach behind her back and over her head. Id.
On February 13, 2019, Plaintiff protectively filed an application for DIB, claiming a disability onset date of November 14, 2015. (T. 14, 120-21). She alleged the following disabilities: back pain, neck pain, hip pain, torn labrum “which was repaired 11/2017,” Fibromyalgia, and right shoulder pain. (T. 120-21.) The Commissioner denied Plaintiff's application on May 23, 2019, and again upon reconsideration on August 19, 2019. (T. 14, 139-50, 167-78.) Plaintiff then filed a written request for hearing received on September 16, 2019. (T. 14, 179-80.) The relevant time period at issue is March 20, 2018, to March 31, 2019. (T. 16.)
On May 1, 2020, Plaintiff, represented by a non-attorney representative, appeared at a hearing before the Administrative Law Judge (“ALJ”) during which Plaintiff testified. (T. 35-63.) Plaintiff reported she started experiencing pain in her neck and between her shoulder blades after the 2015 car accident. (T. 47-48.) She feels numbness and tingling in both arms, but more so in her right arm. (T. 48.) She also reported pain, aches, numbness, and tingling in her middle lower back. Id.
Plaintiff reported her shoulder pain has gotten better since her surgery in July 2019, but her hip pain has gotten worse. (T. 52-53.) It is still difficult for her to reach behind her and overhead on her right side, but it was more difficult prior to her surgery. (T. 53.) After the surgery to repair the torn labrum, her hip initially improved. Id. However, a few months later she experienced a jolt down her leg while walking and her hip pain has since gotten progressively worse. Id. She testified that her doctors believe she might have another tear in her labrum. Id. She sometimes still experiences a sharp jolt in her right leg that “stops [her] dead in [her] tracks.” (T. 48.) Her hip pain is worse when she is sitting with her leg at ¶ 90-degree angle, so she usually sits with her leg hanging off the chair so it is completely straight. (T. 48-49.) She testified she usually does not sit down at home, but rather lies flat on her bed with pillows supporting her neck and back. Id. She can sit five to ten minutes in a work position at one time, but ten minutes is “usually excruciating.” (T. 49.) While standing is a bit easier, she cannot stand very long without leaning and 90 to 98 percent of the time she is leaning or putting her weight on her left leg when she stands. (T. 48-49.) Plaintiff can stand about five minutes without leaning and about 10 minutes with leaning. (T. 50.) Her doctor recently prescribed her a cane to use. (T. 55-56.) She has not been able to walk without leaning for “quite some []time,” at least prior to March 31, 2019. (T. 56.)
Plaintiff testified that she has rheumatoid arthritis and fibromyalgia, which cause her to experience pain throughout her body every day. (T. 54-56.) The pain includes back aches and muscle spasms. (T. 55.) Plaintiff reported having difficulty getting out of bed. Id. She says she uses ice or heat to manage the pain in her hips and back. (T. 56.) She also tries not to go up and down the stairs and spends a lot of her day lying flat in her bedroom. Id. Plaintiff was prescribed Naproxen and the muscle relaxer Baclofen for her conditions. (T. 57.) However, she prefers not to take Baclofen because it causes memory loss and makes her feel unbalanced. Id. Plaintiff also has a TENS unit, but it is difficult for her to put it on and take it off her back. Id. Plaintiff testified she usually does not socialize but when she does, her husband or mother is there playing buffer, and she is usually sitting down. (T. 59-60.) While Plaintiff used to enjoy photography, she testified she can no longer photograph due to the bending, getting up and down, and moving in different directions that is required. (T. 62.)
During the hearing on December 16, 2020, the medical expert, Nitin Dhiman, M.D., and a vocational expert (“VE”) testified. (T. 67-91.) Dr. Dhiman testified about his answers to written interrogatories regarding Plaintiff's abilities, discussed in more detail below. (T. 71-76.) The ALJ posed a hypothetical to the VE based on the Plaintiff's residual functioning capacity (“RFC”) who testified Plaintiff could not perform past relevant work as a cosmetologist but could work as a customer complaint clerk. (T. 84-85.) The VE testified Plaintiff could also work as a cashier, a storage facility rental clerk, or a marker, all of which are classified as a light level of physical exertion. (T. 85-86.)
The ALJ denied Plaintiff's claim for benefits on January 22, 2021, and the Appeals Council denied Plaintiff's request for review on August 16, 2021. (T. 26, 1-4.) Plaintiff, proceeding pro se, now seeks this Court's review. (Dkt. No. 1.)
II. THE ALJ's DECISION
The ALJ applied the five-step sequential evaluation promulgated by the Commissioner for adjudicating disability claims. (T. 14-26.) At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity during the period from March 20, 2018, the day after the decision was made on the claimant's prior application for disability benefits, through her date last insured of March 31, 2019. (T. 18.) Proceeding to step two, the ALJ determined Plaintiff had the following severe impairments through the date last insured: right shoulder rotator cuff impingement, AC joint arthritis, proximal biceps tendinitis; right hip impairment, status post right hip arthroscopy with osteoplasty and labral repair; obesity; asthma/Chronic Obstructive Pulmonary Disease (“COPD”); fibromyalgia; cervical spine degenerative disc disease; and lumbar spine mild degenerative disc disease. Id. At step three of the sequential evaluation, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. (T. 18-19.)
Thereafter, the ALJ determined Plaintiff had the RFC to perform a range of light work. (T. 20.) Specifically, she found Plaintiff:
in an eight-hour workday, the claimant could occasionally lift and carry twenty pounds and frequently lift and carry ten pounds. She could sit for two hours at one time, for a total of six hours; stand for two hours at one time, for a total of six hours; and walk for two
hours at one time, for a total of six hours. She should avoid working at unprotected heights, climbing ladders, ropes, or scaffolds, and working in close proximity to dangerous machinery or moving mechanical parts of equipment. She is able to occasionally operate foot controls. The claimant could occasionally climb ramps or stairs; and could perform occasional stooping, kneeling, crouching, and crawling. With her bilateral arms, the claimant could occasionally reach overhead and frequently reach in all other directions. With her bilateral hands, she can frequently handle and continuously finger and feel. The claimant should avoid exposure to excessive amounts of respiratory irritants such as dust, odors, fumes, and gases and extreme hot and cold temperatures.Id.
Proceeding to step four of the sequential evaluation, the ALJ determined Plaintiff was capable of performing past relevant work as a customer complaint clerk which did not require the performance of work-related activities precluded by her RFC. (T. 23-24.) Accordingly, the ALJ determined Plaintiff was not disabled, as defined in the Social Security Act, from the alleged amended onset date through the date of her decision. (T. 25.)
III. RELEVANT LEGAL STANDARDS
A. Standard of Review
In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Featherly v. Astrue, 793 F.Supp.2d 627, 630 (W.D.N.Y. 2011) (citations omitted). A reviewing court may not affirm the ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if the decision appears to be supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support the decision. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). “Substantial evidence” is evidence amounting to “more than a mere scintilla,” and has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation marks and citation omitted). Where evidence is deemed susceptible to more than one rational interpretation, the ALJ's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's findings must be sustained “even where substantial evidence may support the plaintiff's positions and despite that the court's independent analysis of the evidence may differ from the [Commissioner's].” Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992). A reviewing court cannot substitute its interpretation of the administrative record in place of the Commissioner's if the record contains substantial support for the ALJ's decision. See Rutherford, 685 F.2d at 62. However, when inadequacies in the ALJ's decision frustrate meaningful review of the substantial evidence inquiry, remand may be appropriate. Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019); Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
While the SSI program has special economic eligibility requirements, the requirements for establishing disability under Title XVI, 42 U.S.C. § 1382c(a)(3) and Title II, 42 U.S.C. § 423(d), are identical, so “decisions under these sections are cited interchangeably.” Donato v. Sec'y of Health and Human Servs., 721 F.2d 414, 418 n.3 (2d Cir. 1983) (citation omitted).
To be considered disabled, a plaintiff seeking disability benefits must establish he or she is unable “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). In addition, the plaintiff's
physical or mental impairment or 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § (d)(2)(A).
The Social Security Administration regulations outline a five-step process to determine whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a “residual functional capacity” assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008)); 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). “If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003).
The claimant bears the burden of proof regarding the first four steps. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)). If the claimant meets his or her burden of proof, the burden shifts to the Commissioner at the fifth step to prove the claimant is capable of working. Id.
IV. THE PARTIES' CONTENTIONS
Plaintiff contends, albeit indirectly, the RFC is not supported by substantial evidence. (Dkt. No. 15.) Plaintiff argues the Medical Interrogatory answers and Medical Statement of Ability to Do Work-Related Activities prepared by Dr. Dhiman, and relied on by the ALJ, are inconsistent with the record, specifically the portion of the record Dr. Dhiman cites to support his analysis. Id. at 1-2. Defendant argues the RFC is supported by substantial evidence and Plaintiff's subjective allegations of pain are not supported by the record. (Dkt. No. 16 at 3-12.)
V. THE COURT'S ANALYSIS
“In a case such as this, where Plaintiff is proceeding pro se, General Order No. 18's promise of a consideration of the merits complies with the special solicitude that the Second Circuit mandates for pro se litigants.” Hubbard v. Comm'r of Soc. Sec., No. 6:14-CV-1401 (GTS/WBC), 2016 WL 551783, at *4 (N.D.N.Y. Jan. 14, 2016). As such, this Court will “examine[ ] the record to determine whether the ALJ applied the correct legal standards and reached a decision based on substantial evidence.” Id. (citing Gregorka v. Comm'r of Soc. Sec., No. 6:13-CV-1408 (GTS/TWD), 2015 WL 3915959, at *4 (N.D.N.Y. June 25, 2015)).
A claimant's RFC is the most he can do despite his limitations. 20 C.F.R. § 404.1545(a)(1). “Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. A regular and continuing basis means eight hours a day, for five days a week, or an equivalent work schedule.” Pardee v. Astrue, 631 F.Supp.2d 200, 210 (N.D.N.Y. 2009) (citing Melville v. Apfel, 198 F.3d 45 52 (2d Cir. 1999)). “In making a residual functional capacity determination, the ALJ must consider a claimant's physical abilities, mental abilities, symptomology, including pain and other limitations which could interfere with work activities on a regular and continuing basis.” Id. (citing 20 C.F.R. § 404.1545(a)). “Ultimately, ‘[a]ny impairment-related limitations created by an individual's response to demands of work . . . must be reflected in the RFC assessment.'” Hendrickson v. Astrue, No. 11-CV-0927 (ESH), 2012 WL 7784156, at *3 (N.D.N.Y. Dec. 11, 2012) (quoting Social Security Ruling (“SSR”) 85-15, 1985 WL 56857, at *8). The RFC determination “must be set forth with sufficient specificity to enable [the Court] to decide whether the determination is supported by substantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
As more fully set forth below, this Court finds the RFC is not supported by substantial evidence and remand is required.
A. The ALJ's Evaluation of the Medical Evidence
As an initial matter, the ALJ appears to have based the RFC on a selective or cursory reading of the medical records often without providing necessary context. To support the RFC, the ALJ first cites to Plaintiff's March 2018 orthopedic visit to Russell M. LaFrance, M.D., where she reported her hip had been doing well since her surgery. (T. 21, 405.) At the examination, Plaintiff's range of motion of her right hip was 0-130 degrees of flexion with excellent preservation of periarticular muscle tone and strength in hip flexion, abduction, and adduction. (T. 406.) While there was no pain with palpation, she had positive flexion, adduction, and internal rotation (“FADIR”) and positive flexion, abduction and external rotation (“FABER”) tests, eliciting pain. Id. These findings were almost identical to those previously found when Plaintiff was diagnosed with a large labral tear which caused her 7/10 pain and ultimately needed to be corrected via surgery. (T. 378-79, 383-85, 387-89.) Moreover, at the same March 2018 exam, Plaintiff “continue[d] to have significant shoulder difficulty.” (T. 405.) She was diagnosed with right shoulder impingement with AC joint arthritis and biceps tendinitis and received an injection into the right subacromial space. (T. 406, 407.) Plaintiff's diagnosis and treatment for her right shoulder directly followed an “unremarkable” right shoulder x-ray on the same day. (T. 21, 404-07.)
The ALJ next cites to Plaintiff's April 11, 2018, exam where her primary care physician, Andrea Finocchiaro, D.O., did indicate improved range of motion in the right hip since the surgery, but also noted Plaintiff's report of continued chronic neck, back, and hip pain; decreased anterior right thigh sensation to light touch; and decreased range of motion of her neck with extension and rotation of bilateral shoulders. (T. 21, 476, 479.) The next day, on April 12, 2018, Plaintiff presented to her orthopedist, Dr. LaFrance, with shoulder and hip pain. (T. 409.) She reported that she continued to have pain with sitting or standing for long periods of time and the pain was mostly anterior. Id. She thought her hip was better than it was prior to the surgery but continued to have symptoms. Id. Plaintiff had received a cortisone injection in her right shoulder at her last visit which had helped temporarily but was wearing off. Id. On examination of her right shoulder there was tenderness over the AC joint and biceps tendon. (T. 410.) The shoulder had a range of motion from 0-170 degrees of flexion, 5/5 strength with rotator cuff testing, and positive impingement testing. Id. There was pain with the rotator cuff testing. Id. On examination of her right hip, there was significant anterior tenderness and mild lateral tenderness. Id. The hip had a range of motion from 0-110 degrees of flexion; 5/5 strength with hip flexion, abduction, and adduction; and stable logroll. Id. She was diagnosed with right shoulder rotator cuff impingement, AC joint arthritis, and proximal biceps tendinitis. Id. While the Plaintiff continued to gradually improve with her right hip, she still had symptoms with sitting and prolonged standing and walking. (T. 411.) Her shoulder was doing well after the injection, but the doctor discussed further treatment options including arthroscopy if the pain persisted. Id.
As the ALJ mentions, by June 10, 2019, Plaintiff had returned to her orthopedist, Dr. LaFrance. (T. 21, 502.) Plaintiff complained of anterior, lateral, and superior shoulder pain; recurrent anterior hip pain; trouble sleeping; and difficulty sitting and standing. Id. Examination of Plaintiff's right shoulder revealed tenderness over the AC joint and over the biceps. (T. 503.) She had 170 degrees of flexion and 160 degrees of abduction, positive impingement sign, with rotator cuff strength 5/5. Id. Her left shoulder had 180 degrees of flexion and 175 degrees of abduction with rotator cuff strength 5/5. Id. Her right hip exam revealed tenderness in the anterior aspect with 110 degrees of flexion, 25 degrees of internal rotation, and 40 degrees of external rotation with a positive FADIR test. Id. Plaintiff agreed to go forward with right shoulder arthroscopy, subacromial decompression, acromioplasty, distal clavicle excision, and open biceps tenodesis. (T. 504.) She was also prescribed a shoulder immobilizer because there was “weakness and instability of [her] extremity which require[d] stabilization to improve [her] function.” (T. 504, 506.) Plaintiff's shoulder surgery took place July 9, 2019. (T. 708-10.)
While Plaintiff testified her shoulder was “better” since her surgery in July, she also testified she tries not to push her shoulder too hard so as not to hurt it more. (T. 51.) Plaintiff tries not to lift too much on that side, and it is still difficult to reach behind her back and over her head. Id. She further testified she can carry a gallon of milk on her left side, but on her right side she tries not to carry much. Id. Plaintiff attested that the limitations she described were all present prior to her date last insured. (T. 51-52.)
The Court notes the Transcript reads “Like, I try not to lift too much on that and it's still [sic] to reach behind my back as well as over head.” (T. 51.) Given the context, the Court assumes Plaintiff is describing difficulty reaching and the missing word after “still” was likely a clerical error.
The ALJ also cites to Plaintiff's CT of February 16, 2017, which was negative, nerve conduction studies, and x-ray results in support of the RFC. (T. 21, 813-820.) Plaintiff's spinal x-rays taken on February 8, 2017, noted mild degenerative changes with anterior endplate spurring in the mid to lower thoracic spine. (T. 811.) The January 30, 2017, nerve conduction study of her low back was normal, but the doctor noted clinical evaluation suggested there was a myofascial component to the lumbosacral axial symptoms, as well as an element of right SI joint dysfunction. (T. 820.) The January 31, 2017, nerve conduction study of her cervical area was normal, but the doctor noted that clinical history and evaluation suggested there was a myofascial component to the cervical axial symptoms and further myofascial release techniques may be considered in the future. (T. 815.) Additionally, the report indicated a cervical sensory radicular component could not be completely ruled out, thus, cervical interlaminar epidural injection could be considered in the future for further diagnostic as well as therapeutic purposes. Id.
Just a few weeks earlier, on January 12, 2017, Plaintiff presented to Upstate Neurosurgery with 7/10 pain in her neck and shoulder blades bilaterally down which was worsening with time. (T. 805.) Plaintiff's range of motion of her neck in flexion, extension, rotation, and lateral bending was decreased. Id. Plaintiff's range of motion in all of her upper and lower extremities was also decreased. (T. 806 (emphasis added.)) It was noted “[d]ue to the diffuse nature of her symptoms in conjunction with the relatively normal findings [on] her imaging, it is likely that she has a whiplash injury which is affecting her entire spine from cervical to lumbar” and CT and nerve conduction testing were ordered to better determine her current condition. (T. 808.) At her February 16, 2017, follow-up, she was diagnosed with “[w]hiplash injury, sequela.” (T. 811.) Plaintiff presented with continued low back and right hip pain. Id. Her right hip pain was worse than the lower back pain. Id. Plaintiff had received an injection in her low back and neck on January 26, 2017, which had provided some degree of relief for three days. Id. The office referred Plaintiff to a pain management clinic for her diffuse pain symptoms. Id.
Certainly, the ALJ is not required to discuss every piece of evidence she considered in making her decision. See Holler v. Saul, 852 Fed.Appx. 584, 586 (2d Cir. 2021). However, the ALJ cannot cherry-pick evidence to support her conclusion. See Lee G. v. Comm'r of Soc. Sec., No. 5:19-CV-1558 (DJS), 2021 WL 22612, at *5 (N.D.N.Y. Jan. 4, 2021) (“Cherry picking refers to improperly crediting evidence that supports findings while ignoring conflicting evidence from the same source.”) (internal quotations and citation omitted); Starzynski v. Colvin, No. 1:15-cv-00940(MAT), 2016 WL 6956404, at *3 (W.D.N.Y. Nov. 29, 2016) (“It is plainly improper for an ALJ to cherry-pick evidence that supports a finding of not-disabled while ignoring other evidence favorable to the disability claimant.”); Younes v. Colvin, No. 1:14-CV-170(DNH/ESH), 2015 WL 1524417, at *8 (N.D.N.Y. Apr. 2, 2015) (“Cherry picking can indicate a serious misreading of evidence, failure to comply with the requirement that all evidence be taken into account, or both.”) (internal quotations and citation omitted); Angelo A. C. v. Comm'r, No. 20-CV-1579-A, 2022 WL 682654, at *6 (W.D.N.Y. Mar. 8, 2022) (“It is well-settled that an ALJ cannot ‘cherry pick' only the evidence from medical sources that support a particular conclusion and ignore the contrary evidence.”) (internal quotations and citation omitted). Here, the ALJ emphasized a few records that showed apparent normal findings with some improvements in Plaintiff's conditions without providing relevant context and ignored many entries to the contrary in the RFC determination. This amounts to impermissible cherry-picking and the Court therefore cannot conclude substantial evidence supports the RFC. Therefore, remand is warranted on this basis for the ALJ to consider all of the medical evidence in determining the RFC.
Beyond what is already mentioned, Plaintiff's medical records repeatedly and consistently note pain and/or limited rotation and/or range of motion in her neck, back, right hip, and right shoulder. (2017: T. 376-80; 383-86; 393-94; 399-402; 636-40; 641-45; 651-55; 2018: T. 405-08; 409-11; 475-80; 2019: T. 432-38; 679-84; 700-04; 718-20; 721-23; 728-30.)
B. The ALJ's Evaluation of the Opinion Evidence
The ALJ did not adequately explain the supportability and consistency of Dr. Dhiman's opinion in her RFC determination.
1. Standard of Review
Under the new regulations, applicable here, the Commissioner “will no longer give any specific evidentiary weight to medical opinions.” Raymond M. v. Comm'r of Soc. Sec., 5:19-CV-1313 (ATB), 2021 WL 706645, at *4 (N.D.N.Y. Feb. 22, 2021) (citations and quotations omitted). Rather, the Commissioner will consider all medical opinions and “evaluate their persuasiveness” based on their “supportability; consistency; relationship with the claimant; specialization; and ‘other factors.'” Id. (citing 20 C.F.R. §§ 404.1520c(c)(1)-(5); 416.920c(c)(1)-(5)).
Supportability and consistency are “the most important factors” in determining whether a medical opinion is persuasive. 20 C.F.R. § 416.920c(b)(2). Under the supportability factor, the more a medical opinion or prior administrative medical finding is reinforced by “relevant . . . objective medical evidence and supporting explanations,” the “more persuasive” it will be. 20 C.F.R. § 404.1520c(c)(1); Carmen M. v. Comm'r of the Soc. Sec. Admin, No. 20-CV-06532-MJR, 2021 WL 5410550, at *4 (W.D.N.Y. Nov. 19, 2021) (“The ‘supportability' factor asks how well a medical source supported their opinion(s) with objective medical evidence and supporting explanations.”). Under the consistency factor, a medical opinion or prior administrative medical finding is “more persuasive” if it is consistent “with the evidence from other medical sources and nonmedical sources in the claim.” 20 C.F.R. § 404.1520c(c)(2); Vellone v. Saul, No. 1:20-cv-00261 (RA) (KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021), report and recommendation adopted, 1:20-CV-261 (RA), 2021 WL 2801138 (S.D.N.Y. July 6, 2021) (“Simply put, consistency is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record.”).
While “the new regulations eliminate the perceived hierarchy of medical sources [and] deference to specific medical opinions . . . the ALJ must still ‘articulate how [she] considered the medical opinions' and ‘how persuasive [she] finds all of the medical opinions.'” Brian O. v. Comm'r of Soc. Sec., 1:19-CV-983 (ATB), 2020 WL 3077009 at *4 (N.D.N.Y. June 10, 2020) (quoting 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-(b)). An ALJ is explicitly required to “explain how [she] considered the supportability and consistency factors.” 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). Additionally, the ALJ “must consider, but need not explicitly discuss, the [other] three factors.” Brian O., 2020 WL 3077009, at *5 (citing 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2)).
2. Application
Dr. Dhiman answered a Medical Interrogatory form as an impartial medical expert on June 4, 2020. (T. 23, 851.) Dr. Dhiman had an opportunity to review all available evidence from the record, which had since been developed following two separate findings of insufficient evidence from the relevant time period to adjudicate the claim. (T. 23, 843.) Dr. Dhiman specified Plaintiff's impairments as Degenerative Disc Disease and Asthma/COPD but found that these impairments did not meet or equal any impairment described in the Listings. (T. 843-44.) The form instructed Dr. Dhiman to explain the specific Listings he considered and why the Listings were not met. (T. 844.) Dr. Dhiman simply responded “[Plaintiff] has numerous musculoskeletal complaints due to [a motor vehicle accident]. However, signs/symptoms/presentation do not meet/equal 1.02/1.04. . . . Imaging: 2F - 6F, 8F do not meet/equal 1.02/1.04/11.14” without further explanation. Id.
In the Medical Statement of Ability to Do Work-Related Activities, Dr. Dhiman checked boxes indicating Plaintiff could frequently lift/carry up to 10 pounds and occasionally lift/carry up to 20 pounds. (T. 846.) He further found Plaintiff could sit, stand, or walk for 6 hours out of an 8-hour workday “in any combination.” (T. 847.) Dr. Dhiman indicated Plaintiff could use both her right and left hands to occasionally reach overhead and push/pull; frequently reach in all other directions and handle; and continuously finger and feel. (T. 848.) He also opined Plaintiff could frequently operate foot controls with both her left and right feet; continuously balance; occasionally climb stairs and ramps, stoop, kneel, crouch, and crawl; and never climb ladders or scaffolds. (T. 848-49.) Dr. Dhiman signed off on his findings on June 4, 2020. (T. 851.)
The Court finds the ALJ erred in her assessment of Dr. Dhiman's opinion. Although under the new regulations the ALJ is not required to give specific evidentiary weight to a particular medical opinion, she is still required to articulate how she considered the medical opinion, including explaining how she considered the supportability and consistency factors. See Jaleesa H. v. Comm'r of Soc. Sec., 580 F.Supp.3d 1, 8-9 (W.D.N.Y. 2022). Here, the ALJ did not explain anything; she simply made the conclusory statement that Dr. Dhiman's opinion was “supported by the findings set forth in his report and the testimony that cites to evidence in the record and is consistent with the evidence in the record” without explaining how she assessed the opinion in connection with the consistency and supportability factors as required by the new regulations. (T. 23.) See Jaleesa H., 580 F.Supp.3d at 9.
The ALJ's lack of explanation on the supportability and consistency of Dr. Dhiman's opinion is particularly troublesome for a number of reasons. First, Dr. Dhiman repeatedly cited to examinations in the record outside of the relevant time period which, at best, did not support his findings, or at worst, completely contradicted them. (T. 566-69, 570-74, 580-84, 846-51.) Indeed, after a complete review of the record, it is unclear to the Court whether Dr. Dhiman actually read the portions of the record he cited. For example, Dr. Dhiman cited to Plaintiff's physical examination on March 7, 2016, to support the following findings: (1) Plaintiff could sit, stand, or walk for six hours out of an eight-hour workday in any combination; (2) Plaintiff could use her right and left hands to occasionally reach overhead and push/pull; frequently handle and reach in all other directions; and continuously finger and feel; (3) Plaintiff could frequently use her right and left feet to operate foot controls; and (4) Plaintiff could occasionally climb stairs and ramps, stoop, kneel, crouch, and crawl. (T. 570-74, 847-49.) However, at the March 7, 2016, exam with Dr. Finocchiaro, Plaintiff presented with continued lower back and bilateral shoulder pain. (T. 570.) Plaintiff was going to physical therapy three days a week and to a chiropractor two days a week. Id. While she was slowly gaining more function and range of motion, she was “[s]till unable to sit unsupported, stand or walk for more than 5 minutes.” Id. Dr. Finocchiaro noted Plaintiff was in moderate pain/distress and recorded a decreased range of motion of her neck with extension and “RL, of bilat shoulders and bilat hips secondary to pain” with antalgic gait. (T. 572.) She also noted Plaintiff's range of motion was somewhat improved since last visit. Id.
Dr. Dhiman cites to Exhibit 14F pages 62, 64, 66, 77 which are reflected in the Transcript as T. 568, 570, 572, and 583 respectively.
To support his findings that Plaintiff could frequently lift and carry up to 10 pounds and occasionally lift and carry up to 20 pounds, Dr. Dhiman cited to Plaintiff's examination by Dr. Finocchiaro on April 6, 2016. (T. 568, 846.) At this exam, Plaintiff presented to Dr. Finocchiaro with bilateral shoulder and back pain which she rated a 7/10. Id. Plaintiff denied any changes in her condition and reported she believed her condition may be worsening. Id. Her pain medication, physical therapy, and chiropractor visits provided some relief. Id. Dr. Finocchiaro noted Plaintiff was feeling continuous pain in her lower back and from mid thoracic spine to neck since her injury. Id. She also intermittently experienced right shoulder pain. Id. Plaintiff had been unable to work, went to physical therapy three times a week, and saw a chiropractor two times a week. Id. Plaintiff reported that over the past few weeks her upper back pain, neck pain, and stiffness had increased. Id. She was “[s]till unable to sit unsupported, stand or walk for more than 5 minutes.” Id. Dr. Finocchiaro assessed Plaintiff was in “moderate pain/distress” and had a decreased range of motion in her neck with extension and rotation and in her bilateral shoulders. (T. 568.) Dr. Finocchiaro further assessed that Plaintiff's ligament sprain in her thoracic spine had “[d]eteriorated.” (T. 569.)
When asked at the December 16, 2020, hearing to clarify if he had based his finding on Plaintiff's ability to sit, stand, and walk at least in part on the March 7, 2016, examination, which noted Plaintiff was “[s]till unable to sit unsupported, stand or walk for more than 5 minutes” (T. 570), and which he had specifically cited to for that determination (T. 847), Dr. Dhiman denied doing so and claimed he had looked at a pattern of physical examinations and opinions in making his finding. (T. 74-75.) However, Dr. Dhiman did not cite to any other examinations, or patterns in examinations, that he used to support this determination. Id.
Exhibit 14F, page 64 is reflected in the Transcript as T. 570.
If Dr. Dhiman had made mistakes in his citations on the written interrogatories, he had 6 months between when he submitted his findings and when he testified to rectify them. (T. 67, 845, 851.) If this was, in fact, the case, he failed to do so.
Second, all of the radiology or imaging reports Dr. Dhiman cited to in the interrogatories (T. 844) are outside of the relevant time period, except for one CT scan of Plaintiff's neck/soft tissue which took place on October 26, 2018 (T. 423-24), and which appears to have been ordered for unrelated ear pain Plaintiff had been experiencing. (T. 450-55.) More importantly, Dr. Dhiman offers no explanation why those reports supported his finding that Plaintiff did not meet any of the Listings. (T. 844.) Further, in his hearing testimony, Dr. Dhiman stated “the imaging studies such as 14F, [p]age 35, shows that there's very few degenerative changes in the lumbar spine and of the shoulder and of the cervical spine” and this supported his finding on Plaintiff's ability to sit, stand, and walk within the relevant time period. (T. 74-75.) Yet, the imaging report Dr. Dhiman specifically cites to in his testimony took place two days after Plaintiff's initial accident in 2015. (T. 541.) It does not appear Dr. Dhiman cited any evidence in the record from the relevant time period to support his findings, as instructed by the ALJ, or any evidence in the record to support his findings at all. (T. 71, 843-58.)
Exhibits 2F through 6F are reflected in the Transcript as T. 364-74. Exhibit 8F is reflected as T. 412- 24.
Exhibit 14F, page 35 is reflected in the Transcript as T. 541.
The ALJ's conclusory analysis precludes the Court from undertaking meaningful review of her evaluation of Dr. Dhiman's opinion. See, e.g., Elizabeth P. v. Comm'r of Soc. Sec., No. 3:20-CV-891 (CFH), 2022 WL 507367, at *6 (N.D.N.Y. Feb. 18, 2022) (finding the ALJ's assessment that a doctor's opinion “was persuasive and consistent with the record as well as the examination findings” was cursory and insufficient to explain how she considered the supportability and consistency factors) (internal citations and quotations omitted); Prieto v. Comm'r of Soc. Sec., No. 20-CV-3941 (RWL), 2021 WL 3475625, at *13 (S.D.N.Y. Aug. 6, 2021) (“[R]ather than analyzing the supportability and consistency factors as applied to Dr. Long's opinion, the only reasoning the ALJ provided was entirely conclusory; the ALJ said only that Dr. Long's opinion was ‘supported by the medical evidence of record and by her underlying examination.' Such a conclusory statement is an insufficient explanation of the supportability factor and is grounds for remand.”) (internal citations omitted); Matthews v. Comm'r of Soc. Sec., No. 1:17-cv-00371-MAT, 2018 WL 4356495, at *3 (W.D.N.Y. Sept. 13, 2018) (“The ALJ's failure to explain his assessment of this portion of Dr. Baskin's opinion prevents the Court from meaningfully reviewing his decision, and warrants remand.”) (internal citation omitted). Accordingly, remand is required on this basis. On remand, the ALJ must articulate in a more detailed fashion her assessment of Dr. Dhiman's opinion, including specifically how she considered the supportability and consistency factors—especially in light of Dr. Dhiman's confounding “support” for his opinion.
C. The ALJ's Evaluation of Activities of Daily Living
Finally, the ALJ's RFC determination appears to be based upon a mischaracterization and/or overstatement of evidence concerning Plaintiff's activities of daily living. First, “[s]uch activities do not by themselves contradict allegations of disability,” as people “should not be penalized for enduring the pain of their disability in order to care for themselves.” Woodford v. Apfel, 93 F.Supp.2d 521, 529 (S.D.N.Y. 2000) (internal quotations and citations omitted); see also Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“We have stated on numerous occasions that ‘a claimant need not be an invalid to be found disabled' under the Social Security Act.”).
The ALJ selectively cited portions of the record concerning Plaintiff's daily activities without mentioning important details. The ALJ described Plaintiff's ability to take care of her children with assistance from friends and family as needed, drive herself to doctors' appointments, drive her kids to sports practices, and prepare quick meals. (T. 22.) However, Plaintiff testified whenever she goes out with her family, her husband has to be there because it is physically difficult for her to do the things her kids want to do. (T. 59.) She noted in the activities report that she only prepared simple and quick meals for herself when no one is there to assist her because she could only stand for short periods of time. (T. 297.) She testified that she uses a crockpot to cook so she does not have to stand. (T. 60-61.) The ALJ also noted Plaintiff could dress herself with slight difficulty and can fold laundry but does not put clothes away. (T. 22.) Plaintiff testified she can “pretty much” dress herself and has some difficulty putting her bra on, but she wears tank tops and capris “every day because it's the simplest thing to put on.” (T. 60-61.) She further testified folding laundry is the only household chore she does. (T. 61-62.) Her children bring clothes downstairs, put them in the washer and dryer, and then bring them back upstairs because Plaintiff cannot carry the baskets to and from the basement. (T. 62.) Her father-in-law, who lives with Plaintiff and her family, does dishes and cleans the kitchen and her husband usually does the grocery shopping. (T. 61-62.)
It is well settled that “[t]here are critical differences between activities of daily living (which one can do at his own pace when he is able) and keeping a full time job,” Harris v. Colvin, 149 F.Supp.3d 435, 444-45 (W.D.N.Y. 2016) (internal quotations and citations omitted), and “the fact that [an] appellant can still perform simple functions, such as driving, grocery shopping, dish washing and floor sweeping, does not necessarily indicate that this appellant possesses an ability to engage in substantial gainful activity.” Mecklenburg v. Astrue, No. 07-CV-760, 2009 WL 4042939, at *8 (W.D.N.Y. Nov. 19, 2009) (internal quotations and citations omitted). As such, where an ALJ has “mischaracterize[d] the plaintiff's ability to perform activities of daily living to her disadvantage” in determining plaintiff's credibility, remand is appropriate. Mecklenburg, 2009 WL 4042939, at *7-8; White v. Comm'r of Soc. Sec., No. 5:14-CV-1140 (GTS/WBC), 2016 WL 2865724, at *7 (N.D.N.Y. Apr. 21, 2016), report and recommendation adopted, No. 5:14-CV-1140 (GTS/WBC), 2016 WL 2858859 (N.D.N.Y. May 16, 2016) (remand is appropriate where ALJ “mischaracterized Plaintiff's activities of daily living” in rejecting medical source statement as inconsistent with those activities); Henderson v. Berryhill, 312 F.Supp.3d 364, 370 (W.D.N.Y. 2018) (remanding where “the ALJ clearly misunderstood or exaggerated the degree to which plaintiff could independently perform daily activities such as housework and personal care, and diminished her credibility findings on that basis in a manner which significantly altered and influenced her RFC finding”). Here, the ALJ mischaracterized Plaintiff's activities of daily living by excluding important details or caveats regarding her limitations. As a result, remand is also warranted on this basis.
VI. CONCLUSION
In reaching a decision, the ALJ “must both identify evidence that supports his conclusion and ‘build an accurate and logical bridge from that evidence to his conclusion.'” Gutowski v. Comm'r of Soc. Sec., No. 17-CV-1246, 2019 WL 2266796, at *4 (W.D.N.Y. May 28, 2019) (emphasis in original) (internal quotations and citations omitted). “[P]roviding ‘an accurate and logical bridge' require[s] him to confront the evidence in [a plaintiff's] favor and explain why it [is] rejected before concluding that her impairments [do] not impose more than a minimal limitation on her ability to perform basic work tasks.” Lynn S. v. Comm'r of Soc. Sec., No. 1:20-CV-1915-DB, 2022 WL 17828844, at *8 (W.D.N.Y. Dec. 21, 2022) (internal citations and quotations omitted). “Where [the court is] ‘unable to fathom the ALJ's rationale in relation to the evidence in the record, especially where credibility determinations and inference drawing is required of the ALJ,' [the court] will not ‘hesitate to remand for further findings or a clearer explanation for the decision.'” Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (internal citations omitted); see also Lynn S., 2022 WL 17828844, at *8. Such is the case here.
There is no accurate and logical bridge between the evidence and the ALJ's conclusions as to Plaintiff's RFC. After carefully reviewing the record, the parties' submissions, and the applicable law, and for the reasons stated herein, the Court recommends remand.
WHEREFORE, it is hereby
RECOMMENDED that Plaintiff's motion for judgment on the pleadings (Dkt. No. 15) be GRANTED; and it is further
RECOMMENDED that Defendant's motion for judgment on the pleadings (Dkt. No. 16) be DENIED, that the decision of the Commissioner be reversed, and that the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Report and Recommendation and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec 'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
SO ORDERED.