Opinion
7:22-cv-02256-KMK-VR
08-15-2023
GENESIS DIAZ, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
VICTORIA REZNIK,UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
TO THE HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE:
Plaintiff Genesis Diaz brings this action pursuant to 42 U.S.C. § 205(g), as amended, 42 U.S.C. § 405(g), seeking judicial review of a final determination of the Commissioner of Social Security (the “Commissioner”), which denied her application for disability insurance benefits and supplemental security income under the Social Security Act. The matter is before me pursuant to an Order of Reference entered March 25, 2022. ECF No. 5. Currently pending before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ECF Nos. 10, 12. For the reasons below, I respectfully recommend that Plaintiff's motion (ECF No. 10) be DENIED and that the Commissioner's motion (ECF No. 12) be GRANTED.
I. BACKGROUND
The following facts are taken from the administrative record (“R.”) of the Social Security Administration, filed by the Commissioner on July 11, 2022. ECF No. 9 and 9-1 (SSA Record).
A. Application History
Plaintiff was born on February 14, 1994. R. 171. On February 6, 2018, Plaintiff applied for monthly Social Security disability insurance and Supplemental Security income disability benefit payments, alleging that she had been disabled since December 31, 2013. R. 17, 102-103, 171-181. On April 26, 2018, the Social Security Administration (“SSA”) denied her applications after an initial review. R. 102-11. Plaintiff then requested an administrative law judge (“ALJ”) hearing, which was held on May 3, 2019. R. 38-78, 112-13. Plaintiff and her attorney appeared before ALJ John Carlton, who considered the case de novo, and on October 2, 2019, issued a decision finding that Plaintiff was not disabled. R. 14-29. Plaintiff requested review of the ALJ's decision by the Appeals Council. R. 162-170. On June 29, 2020, the Appeals Council denied Plaintiff's request for review and the ALJ's decision became the final decision of the Commissioner. R. 8-11, 36-37, 267-70. Thereafter, Plaintiff filed this lawsuit, seeking judicial review of the ALJ's decision. ECF No. 10.
The record also contains evidence regarding asthma and degenerative disc disease and includes the medical opinions of Dr. Mohammad Islam and Dr. S. Stradley. See, e.g., R. 25 - 26. Plaintiff does not dispute the ALJ's findings with respect to these medical conditions and they are not the basis for the parties' respective motions for judgment on the pleadings. Consequently, I have not summarized the record as to these medical conditions.
The relevant medical evidence spans the years 2006 to 2019. As detailed below, before December 31, 2013 - the date that Plaintiff alleges the onset of her disability - the record contains evidence of Plaintiff's in-patient psychiatric treatment in 2006. Thereafter, the record contains no evidence of psychiatric treatment until November 2017. The bulk of medical evidence relates to various treatment and medical examinations between November 2017 and December 2019.
1. Four Winds Hospital (in 2006)
In June 2006, Plaintiff received in-patient psychiatric treatment at Four Winds Hospital for mood disorder and psychotic disorder. At that time, she reported command auditory hallucinations telling her to kill herself and others. R. 284-94. Plaintiff was re-admitted to Four Winds in October 2006, for depression and suicidal thoughts. R. 271-83. Plaintiff attempted to overdose on medication and suffered from auditory hallucinations. R. 280.
2. Jacobi Medical Center (November 27, 2017)
On November 27, 2017, Plaintiff was brought to Jacobi Medical Center via EMS after being found “naked in hallway, banging head to wall.” R. 320. Plaintiff's family indicated she was smoking marijuana that may have been laced with another substance. R. 303-04. Plaintiff tested positive for marijuana in the emergency room. R. 350. Plaintiff stated her name was “Dr. Sues” or “Miguel.” R. 329. The facility administered Haldol and Ativan to Plaintiff and placed her in restraints. R. 328. It is unclear precisely how long Plaintiff stayed in the hospital for this visit, however a note from November 30, 2017, indicated that she was again brought to the hospital via EMS after yelling and fighting with her family. R. 296. A mental status exam revealed an “irritable mood” with “congruent affect,” “concrete” thought process, and “limited spontaneous speech.” R. 303. Plaintiff was diagnosed with “substance induced psychosis.” R. 308.
Haldol (Haloperidol) is prescribed to treat psychotic disorders. https://medlineplus.gov/druginfo/meds/a682180.html.
Lorazepam (Ativan) is prescribed to relieve anxiety. https://medlineplus.gov/druginfo/meds/a682053.html.
3. Zucker Hillside Hospital (December 13 - 26, 2017)
From December 13, 2017, to December 26, 2017, Plaintiff was hospitalized at Zucker Hillside Hospital for psychiatric treatment. R. 355 - 357. On December 14, 2017, Plaintiff underwent a psychological assessment. Id. Plaintiff reported a history of being sexually abused and removed from her home as a child. Id. The results of the examination are not included in the certified administrative record, however, there is a discharge summary dated December 26, 2017. Id. This summary noted that Plaintiff had multiple prior psychiatric hospitalizations dating back to age 12, and that since her Jacobi Medical Center hospitalizations (in November 2017), Plaintiff exhibited increasingly bizarre behavior, including driving to Florida for no reason, becoming aggressive and physical towards her boyfriend, and attempting to flee from police during a traffic stop. Id. At the time of admission, Plaintiff refused to answer many questions, blankly stared at staff, and at times became agitated and yelled. Id. The medical notes indicate that “there was a significant concern that her presentation was substance-induced because she was not sure of the substances she had been smoking prior to her admission.” R. 357. Plaintiff's psychosis symptoms improved with hospitalization and the use of Risperidone. Id. Her final diagnosis was “psychosis,” with a note regarding “substance-induced psychotic disorder.” R. 358. Plaintiff was also advised to begin outpatient therapy and medication management. R. 358, 359.
Risperidone (Risperdal) is prescribed to treat symptoms of schizophrenia and episodes of mania or mixed episodes cause by bipolar disorder (https://medlineplus.gov/druginfo/meds/a694015.html).
4. Social Worker Massiel at Stevenson Family Health Center (between Dec. 2017- May 2018)
Upon her release from the hospital on December 26, 2017, Plaintiff saw a social worker at Stevenson Family Health Center. R. 420. Plaintiff reported symptoms of “agitation, anxiety, change in appetite, depressed mood, hallucinations, loss of energy, difficulty concentrating, sleep disturbance, feelings of worthlessness, and anxiety or panic attacks.” R. 420. The medical notes indicated that Plaintiff's “appearance, build/stature, and posture” were “within normal limits.” R. 423. She made “average” eye contact, her speech was “clear,” her mood was “euthymic,” her affect was “appropriate to content,” and she was “cooperative.” R. 423. Plaintiff's thought process was reported as “intact,” “delusions were not present,” and there was “no impairment” of perception. R. 423. She was given the PHQ-9 and GAD-7 inventories during her therapy appointment, which measure the severity of depression and anxiety, respectively. Her reported PHQ-9 score was 19 and her GAD-7 score was 18. R. 424.
The Patient Health Questionnaire (“PHQ-9”) is a module that scores each of the 9 DSM-IV criteria to measure the severity of depression. The scores range from 0-27 and are divided into categories of increasing severity: 0-4, 59, 10-14, 15-19, and 20 or greater (www.ncbi.nlm.nih.gov/pmc/articles/PMC1495268/).
The General Anxiety Disorder-7 (“GAD-7”) scale is used to assess and diagnoses anxiety disorder and ranges from increasing severity from 0 - 21. (www.ncbi.nlm.nih.gov/pubmed/16717171); (https://adaa.org/sites/default/files/GAD-7Anxiety-updated0.pdf).
After December 2017, Plaintiff began individual therapy with social worker Massiel Ramos. Plaintiff reported symptoms of agitation, nervousness, anxiety, change in appetite, depressed mood, loss of energy, sleep disturbance, feelings of worthlessness, and difficulty with concentration. R. 377, 379, 380, 382, 400, 409, 414. Upon mental status examinations, hallucinations/delusions were not present, and Plaintiff was oriented to time, place, and person. R. 377, 379, 380, 400, 382, 400, 409, 414. She was again given the PHQ-9 and GAD-7 inventories during her therapy appointments. R. 381-82, 401, 410, 415. On February 13, 2018, her PHQ-9 score was 17 (on a severity scale of 0-20+) and her GAD-7 score was 16 (on a severity scale of 021). R. 410. On February 23, 2018, her PHQ-9 score was 23 and her GAD-7 score was 20. R. 415. On March 15, 2018, Plaintiff's PHQ-9 score was 17, and her GAD-7 score was 16. R. 401. On April 26, 2018, Plaintiff's PHQ-9 was an 8, and her GAD-7 was a 7. R. 381-82.
5. Nurse Practitioner Alexandre at Stevenson Family Health Center (between Feb. 2018 - May 2018)
On February 15, 2018, Plaintiff also began treatment with Nurse Practitioner (NP) Alexandre. R. 403 - 407. Plaintiff related a history of depression and hallucinations dating back to her childhood. R. 403-404. She described periods of time in which she experienced less pleasure and was disengaged from activities. R. 404. She also related episodes in which she had “reduced speaking” that could last a week, and other episodes in which she became “tongue-twisted” that occurred about twice a week. R. 404. Plaintiff gave a work history of several jobs that lasted anywhere from two months to one year. R. 404. Upon mental status examination, “Plaintiff's appearance, build/stature, and posture” were reported to be “within normal limits,” her eye contact was “average,” her speech was “clear,” her thought process was “intact,” there was “no impairment” of perception, and hallucinations and delusions were “not present.” R. 406. Plaintiff scored a 15 on the PHQ-9, and an 18 on the GAD-7. R 405. NP Alexandre assessed “schizoaffective disorder, depressive type,” ordered a laboratory work-up, and started Plaintiff on Abilify. R. 407.
Abilify® is an antipsychotic medication that helps treat several kinds of mental health conditions, including schizophrenia, bipolar I disorder, autism spectrum disorder and Tourette syndrome. It balances the levels of dopamine and serotonin in your brain to regulate your mood, behaviors, and thoughts. (https://my.clevelandclinic.org/health/drugs/19695-aripiprazole-tablets).
NP Alexandre interviewed Plaintiff's boyfriend as well. R. 404. He reported that when Plaintiff did not take her Risperidone, she was “really angry” and had difficulty focusing. R. 404. He stated that if she did not take her Trazodone, then she would not sleep and would become “more crazy” and “more aggressive,” mixing up her words and talking about things that were not real. R. 405.
Trazodone® is a medication used in the management and treatment of major depressive disorder. (https://www.ncbi.nlm.nih.gov/books/NBK470560/).
At her appointment with NP Alexandre on April 10, 2018, Plaintiff reported that she thought about too many things and she continued to experience “tongue twisted” speech about twice a week with episodes lasting about twenty minutes. R. 384. Upon mental health screening, her PHQ-9 score was 10, and her GAD-7 score was 5. R. 384. Plaintiff stated that she was currently living in a shelter and that she had interviewed for a job as a safety school agent. R. 385.
At therapy on April 19, 2018, Plaintiff's symptoms were agitation, nervousness, anxiety, changes in appetite, a depressed mood, loss of energy, sleep disturbances, and feelings of worthlessness. R. 382. A mental status exam found a depressed mood and no improvement was noted regarding Plaintiff's symptoms at subsequent therapy sessions on April 26, 2018, and May 10, 2018. R. 379, 380 - 382. At the latter visit, the mental status examination revealed a depressed and irritable mood. Id.
At Plaintiff's next appointment with NP Alexandre on May 24, 2018, Plaintiff reported that she had not been taking her medication more than twice a week for the past month. R. 373. Plaintiff's PHQ-9 score was 23 and her GAD-7 score was 19. R. 373-74. Medical notes indicate that Plaintiff reported the following symptoms:
[A]gitation, nervousness/anxiety, depressed mood, hallucinations, loss of energy, lability, nightmares, paranoia, difficulty with concentration, sleep disturbance, loss of interest or fear in meeting people (social withdrawal), weight change, feelings of worthlessness, and feeling oppositional. R. 374.
a) Psychological impairment forms
On May 30, 2018, Plaintiff saw NP Alexandre for an evaluation and completion of psychological impairment forms. R. 370. She acknowledged smoking marijuana every other day. R. 370. She had started the Wellbutrin five days prior. R. 370. She denied hallucinations, oppositional behavior, mood lability or nightmares since her last visit one week earlier. R. 370. Her boyfriend was interviewed during this evaluation. R. 370. He noted mild improvement and denied Plaintiff had experienced any episodes of hospitalization or psychosis since starting treatment. R. 370. He also reported that Plaintiff was learning to control her anger. R. 370. On the PHQ-9, Plaintiff scored an 11. R. 370. On the GAD-7, she scored a 15. R. 370. Plaintiff reported symptoms of agitation, depressed mood, flashbacks, feelings of helplessness, feelings of hopelessness, loss of energy, difficulty concentrating, and loss of interest in or fear of meeting people (social withdrawal). R. 371. At this appointment, Plaintiff was compliant with her medication. R. 371.
Wellbutrin is an antidepressant medicine that is thought to work in the brain and nerves on the chemical messengers norepinephrine and dopamine. (https://www.drugs.com/wellbutrin.html)
Upon mental status examinations conducted over several visits, NP Alexandre found that Plaintiff's appearance and posture were “within normal limits” and her eye contact was “average.” R. 371, 374, 385. Her mood was “depressed,” and her affect was “constricted” on one occasion. R. 374. Otherwise, her mood was “unremarkable” and her affect was “appropriate.” R. 371, 385. Plaintiff's thought process was “intact,” her thought content was “within normal limits,” her speech was “clear, “and her attitude was “cooperative.” R. 371, 374, 385. There was “no impairment” of perception, and hallucinations and delusions were “not present.” R. 371, 374, 385. The mental status examination on May 30, 2018, indicated that there was some depressive content and issues with attention/concentration. R. 371. However, cognition was “within normal limits” and Plaintiff's intelligence appeared “average.” R. 374, 385. NP Alexandre noted that Plaintiff declined antipsychotic medication “due to fear of increased weight gain.” R. 375. She initially started Plaintiff on Abilify but switched her to Wellbutrin. R. 372, 375-76, 385.
b) Psychiatric questionnaire
On May 31, 2018, NP Alexandre completed a psychiatric questionnaire. R. 389-93. Plaintiff's diagnosis was schizoaffective disorder, depressive type. R. 388. Plaintiff's signs and symptoms supporting this diagnosis and assessment were: depressed mood; constricted affect; feelings of guilt or worthlessness; hostility or irritability; illogical thinking; past suicide attempt; difficulty thinking or concentrating; easy distractibility; paranoia or suspiciousness; anhedonia/pervasive loss of interest; decreased energy; psychomotor retardation - slowed due to depression; social withdrawal or isolation; hallucinations; loosening of associations; disorganized speech; and decreased need for sleep. R. 389. NP Alexandre noted Plaintiff's most frequent and/or severe symptoms were “depression, anxiety, lack of energy, and poor concentration.” R. 390. She noted the previously reported PHQ-9 and GAD-7 scores. R. 390. NP Alexandre also noted episodes of decompensation or deterioration, citing Plaintiff's reports of becoming “overwhelmed” and her average time of employment lasting six months to one year. R. 390.
NP Alexandre opined that Plaintiff had moderate limitations (symptoms occasionally interfere with ability, i.e. up to one-third of an 8-hour workday) in the following areas:
1. Understand, remember, and carry out one-to-two step instructions
2. Perform activities within a schedule and consistently be punctual
3. Sustain ordinary routine without supervision
4. Make simple work-related decisions
5. Ask simple questions or request assistance
6. Accept instructions and respond appropriately to criticism from supervisors
7. Get along with co-workers or peers without distracting them
8. Maintain socially appropriate behavior
9. Be aware of hazards and take appropriate precautions
10. Travel to unfamiliar places or use public transportation
11. Set realistic goals
12. Make plans independently
R. 391.
NP Alexandre further opined that Plaintiff had moderate-to-marked limitations (symptoms frequently interfere with ability, i.e. one-third to two-thirds of an 8-hour workday) in the following areas:
1. Remember locations and work-like procedures
2. Understand, remember and carry out detailed instructions
3. Maintain attention and concentration for extended periods
4. Work in coordination with or near others without being distracted by them
5. Perform at a consistent pace without rest periods of unreasonable length or frequency
6. Respond appropriately to workplace changes
R. 391.
She assessed that Plaintiff had marked limitations (symptoms constantly interfere with ability, i.e. more than two-thirds of an 8-hour workday) in the following areas:
1. Complete a workday without interruptions from psychological symptoms
2. Interact appropriately with the public
R. 391.
She assessed that Plaintiff had “none to mild” limitation of her ability to adhere to standards of neatness. R. 391. NP Alexandre believed that Plaintiff would miss work two to three times a month and opined that Plaintiff's limitations had been present since December 2017. R. 392.
6. Consultative Examination Report of Amory Carr, Ph. D. (March 27, 2018)
On March 27, 2018, Dr. Carr performed a psychiatric evaluation of Plaintiff at the request of the SSA. R. 360. Plaintiff arrived alone by public transportation. R. 360. Plaintiff reported difficulty sleeping, loss of appetite, and some symptoms of depression including a dysphoric mood, crying spells, loss of usual interest, feelings of irritability, and constantly hearing “things” that she described as amplification of normal sounds. R. 360-61. Plaintiff also reported that she felt like people were staring at her, and that she experienced explosive levels of irritability or temper, so much so that she experienced palpitations and sweating. R. 361. Plaintiff did not describe symptoms that were indicative of panic or mania. R. 361.
Upon mental status examination, Dr. Carr found that Plaintiff was “cooperative and adequately related.” R. 361. Additionally, Dr. Carr noted the following:
Appearance: She appeared her age. She was dressed appropriately. Hygiene and grooming were good. Her nails were well done with glitter on them. Posture was normal. Motor behavior was normal. Eye contact was appropriate.
Speech: Speech was fluent and clear with adequate expressive and receptive language skills.
Thought Processes: Thought processes were coherent and goal directed. There was no evidence of hallucinations, delusions, or paranoia in the evaluation room.
Affect: Her affect was somewhat restricted.
Mood: Her mood was somewhat dysthymic.
Sensorium: Sensorium was clear.
Orientation: She was oriented x3.
Attention and Concentration: Attention and concentration were intact. She made no errors on serial 3s. She could do simple calculations like 2+2 = 4, 5+7 = 12, 8-3 = 5. She was able to count to 20. She could not do serial 7s.
Recent and Remote Memory Skills: Recent and remote memory skills were mildly impaired with 3 out of 3 objects immediately, 3 out of 3 at five minutes, 5 numbers forward, and 3 numbers in reverse.
Cognitive Functioning: Cognitive functioning appeared average to below average. Fund of information seemed somewhat limited.
Insight: Insight was fair.
Judgment: Judgment was fair.
R. 361 - 362.
In terms of daily activities, Plaintiff reported that she was able to attend to her personal care and clean, but she claimed to not know how to prepare food or do laundry. R. 362. Plaintiff acknowledged that she was able to shop but maintained that she did not manage money well. R. 362. Plaintiff reported that she did not drive and “preferre[d] not to take public transportation due to crowds.” R. 362. Plaintiff did not describe any hobbies and explained that she did not socialize, although noted that she was close with her child's grandmother. R. 363.
Dr. Carr diagnosed schizophrenia by report but noted that bipolar disorder and intermittent explosive disorder needed to be “ruled out.” R. 363. Dr. Carr opined that Plaintiff had mild limitations her abilities to “understand, remember, or apply simple directions and instructions;” “maintain personal hygiene and appropriate attire;” and be “aware of normal hazards and take appropriate precautions.” R. 363. Dr. Carr further assessed that Plaintiff had mild-to-moderate limitations of her abilities to “use reason and judgment to make work-related decisions and handle complex directions.” R. 363. This report added that Plaintiff had moderate limitations of her abilities to “interact adequately with supervisors, co-workers, and the public;” “sustain concentration and perform a task at a consistence pace;” and “sustain an ordinary routine and regular attendance at work.” R. 363. Lastly, Dr. Carr added that Plaintiff had moderate-to-marked limitations of her abilities to regulate emotions, control behavior, and maintain wellbeing. R. 363.
7. State Agency Administrative Medical Findings of M. Juriga, Ph D. (April 17, 2018)
On April 17, 2018, Dr. Juriga reviewed Plaintiff's case record and concluded that Plaintiff had moderate limitations in her ability to “understand, remember or apply information”; “interact with others”; “concentrate, persist, or maintain pace”; and “adapt and manage oneself.” R. 84-85. Dr. Juriga further concluded that Plaintiff was not significantly limited or moderately limited in her mental functioning and concluded that Plaintiff retained the ability to perform basic mental demands of unskilled work. R. 87-89. In support of these conclusions, Dr. Juriga noted Plaintiff's stated depression, bipolar disorder, schizophrenia, and obsessive-compulsive disorder; her psychiatric hospitalizations in 2006 and 2017; her drug use; and the possibility of substance-induced psychotic episodes. R. 89. Dr. Juriga also noted Plaintiff's February 2018 psychiatric evaluation as well as the consultative examiner's report, including the reports of symptoms, mental status findings, and Plaintiff's daily activities. R. 89.
8. Montefiore Health System (December 2018)
In December 2018, Plaintiff underwent a pre-operative evaluation for breast reduction surgery. R. 472. During the evaluation, Plaintiff denied agitation or confusion. R 473. Upon psychiatric examination, she was alert and cooperative, her mood and affect were normal, and her attention and concentration were normal. R. 474. Plaintiff underwent breast reduction surgery on January 2, 2019. R. 478-79. Upon surgical follow-up on February 26, 2019, Plaintiff's psychiatric examination indicated that she was alert and cooperative, and had a normal mood, affect, attention span and concentration. R. 465.
9. Dr. Lee at Stevenson Family Health Center (April 2019)
On April 16, 2019, during a visit for leg pain at Stevenson Family Health, it was noted that Plaintiff was studying to become a medical assistant and she denied any auditory or visual hallucinations. R. 451 - 452. A note was also made that Plaintiff had received a ticket for speeding and she needed medical clearance for the Department of Motor Vehicles. R. 451. Plaintiff stated that she had last used marijuana three months earlier. R. 451. On April 18, 2019, Dr. Angel Lee, a physician at Stevenson Family Health Center, completed a New York State Department of Motor Vehicles Physician's Statement for Medical Review Unit. R. 516. Dr. Lee reported that Plaintiff had come into his direct care on April 16, 2018, and was scheduled to undergo an initial mental health assessment. R. 517. He reported that Plaintiff had a history of chronic schizoaffective disorder and depression, was not on any medications, and had been advised to start therapy. R. 517. Dr. Lee stated that he did not believe Plaintiff's condition would interfere with her safe operation of a motor vehicle. R. 517.
C. Relevant Portion of Plaintiff's Hearing Testimony
At her administrative hearing, Plaintiff testified that she has past work experience as a babysitter and in retail stores such as “Marshall's.” R. 48-49. Plaintiff further testified that she is now unable to work due to her focus feeling “off” and “not being able to concentrate the way I want to.” R. 51. Plaintiff also described feeling overwhelmed by various circumstances and told of an “outburst” in which she had become very angry during an argument in public with the father of her children and was “taken to another room” where she “calmed down.” R. 53-34. Plaintiff also testified that she must “force [herself] to get up and make a plan” to do things during the day. R. 68.
Plaintiff acknowledged that she was not taking any medication for the past six months because it caused her to feel “non-responsive” and unable to connect with anyone. R. 51-52, 53. Plaintiff also believed that the doctor was experimenting with the medications and treating her like a “guinea pig.” R. 52. Plaintiff acknowledged that she was “a lot more angr[y]” when she was not taking medication. R. 69. She stated that the medication did not help with her depression, and she was only able to partially distract herself from her depression. R. 69-70. Plaintiff acknowledged that she had not been in treatment for more than six or seven months. R. 53.
Plaintiff testified that she was currently in vocational school “training to become a medical assistant.” R. 54-55. She had been attending since January 2019 and was in class Monday through Friday from 1:00 to 3:30 p.m. R. 55. Plaintiff testified that she attended all her classes (R. 55-56) and that she does “not really” have any trouble handling the work because it is “pretty straightforward.” Id. In addition to class work, she received “hands on” training for drawing blood and performing electrocardiograms. R. 56. She stated that she did not socialize with her classmates and that she does not “really talk to anyone.” R. 57. Plaintiff testified that she planned to pursue part-time employment once she completed the program and was hopeful that she could continue her education to obtain a degree in nursing. R. 66. Plaintiff expressed her belief that upon completion of the program, she would be able to work full time. R. 67. She explained that this was different than in the past when she felt unable to work. R. 67.
Plaintiff stated that she lived with the family of her father's children and her own two daughters who were age two and six. R. 59. She stated that during the day, she was mostly alone at home with her two-year old child and she “makes her breakfast” and gives “her a bath when she needs one.” R. 60-61. Plaintiff testified that she prepared meals, cleaned up and watched television with her daughter. R. 61. She also walked her six-year-old to school in the morning and picked her up in the afternoon. R. 61. Plaintiff asserted that her children's father helped when he could see that she was not in a good mood or not in her “right state of mind.” R. 70.
D. Relevant Portion of Vocational Expert's Hearing Testimony
A vocational expert (“VE”), Carter Hyatt, testified that an individual of Ms. Diaz's age, education, and work history could not perform Plaintiff's past work even if given the following limitations: no work with unprotected heights or dangerous machinery; simple and routine work not at a production rate pace; interacting and reacting appropriately to supervisors and co-workers on an occasional basis; and no more than superficial interactions with the general public. R. 73. Such an individual could perform other work as a packager, Department of Labor, Dictionary of Occupational Titles (4th ed. 1991 rev'd) (“DOT”) Job Code No. 920.587-018, of which there were 130,000 jobs nationally; laundry laborer, DOT Job Code No. 361.687-018, of which there were 60,000 jobs nationally, and industrial cleaner, DOT Job Code No. 381.687-018, of which there were 970,000 jobs nationally. R. 74. The VE stated that an individual who was off task from work more than 12 percent of the day could not work. Id. In addition, an individual who missed work more than once a month could not maintain a job. Id. Finally, if an individual was unable to understand and remember one-to-two step instructions for up to one third of the workday, she could not work. R. 75.
II. LEGAL STANDARD
A. Standard of Review
This Court “engage[s] in limited review” of the ALJ's decision. Schillo v. Saul, 31 F.4th 64, 74 (2d Cir. 2022). The Court “conduct[s] 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 and if the correct legal standards have been applied.” Id.; see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive ....”). “The substantial evidence standard is a very deferential standard of review,” Schillo, 31 F.4th at 74 (internal quotation marks omitted), and it is not the function of the Court “to determine de novo whether a Plaintiff is disabled.” Id. “Substantial evidence” is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted). “If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld.” Id. “[O]nce an ALJ finds facts, [this Court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Id. (internal quotation marks omitted).
However, “where an error of law has been made that might have affected the disposition of the case, this [C]ourt cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (alteration and internal quotation marks omitted). Thus, “[f]ailure to apply the correct legal standards is grounds for reversal.” Id. “When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or where “we are unable to fathom the ALJ's rationale in relation to the evidence in the record without further findings or clearer explanation,” the Court may remand to the Commissioner for further development of the evidence or for an explanation of the ALJ's reasoning. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (internal citations omitted).
B. Statutory Disability
Under the Social Security Act, a claimant is disabled when the claimant lacks the ability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); Schillo, 31 F.4th at 69-70. The claimant is eligible for disability benefits
only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, 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. §§ 423(d)(2)(A); 1382c(a)(3)(B).
The Social Security Regulations, 20 C.F.R. § 404.1520(a)(4)(i)-(v), set forth a five-step sequential analysis for evaluating whether a person is disabled under the Social Security Act. See Schillo, 31 F.4th at 70. “If at any step a finding of disability or nondisability can be made, the Commissioner will not review the claim further.” Id. (alteration and internal quotation marks omitted). Conversely, “[i]f [the Commissioner] cannot find that [the claimant is] disabled or not disabled at a step, [then the Commissioner proceeds] to the next step.” 20 C.F.R. § 404.1520(a)(4). Under the five-step process, the Commissioner determines the following:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe physical or mental impairment, or combination of severe impairments;
(3) whether the impairment (or combination) meets or equals the severity of one of the impairments specified in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listing of Impairments”);
(4) whether, based on an assessment of the claimant's residual functional capacity (RFC), the claimant can perform any of her past relevant work; and
(5) whether the claimant can make an adjustment to other work given the claimant's residual functional capacity, age, education, and work experience.Schillo, 31 F.4th at 70 (citing 20 C.F.R. § 404.1520(a)(4)(i)-(v)). “At step three, the [Commissioner] determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies.” Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003). However, “[i]f the claimant's impairment is not on the list, the inquiry proceeds to step four.” Id. “The claimant bears the burden of proof in the first four steps of the sequential inquiry.” Id. “In step five, the burden shifts, to a limited extent, to the Commissioner to show that other work exists in significant numbers in the national economy that the claimant can do.” Id. “Because the shift in step five is limited, the Commissioner need not provide additional evidence of the claimant's residual functional capacity.” Id. (internal quotation marks omitted).
A severe impairment is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c).
Listed impairments are presumed severe enough to render an individual disabled, and the criteria for each listing are found in Appendix 1 to Part 404, Subpart P of the SSA regulations. 20 C.F.R § 404.1520(a)(4)(iii), (d), 416.920(a)(4)(iii),(d). If the claimant's impairments do not satisfy the criteria of a listed impairment at step three, the Commissioner moves on to step four and must determine the claimant's residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e).
A claimant's RFC represents “the most [he or she] can still do despite [his or her] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
To support a finding that the claimant is disabled, there must be no other work existing in significant numbers in the national economy that the claimant, in light of his or her RFC and vocational factors, is capable of performing. 20 C.F.R. § 404.1560(c).
III. THE ALJ'S DECISION
The ALJ evaluated Plaintiff's disability claim pursuant to the above-described five-step sequential analysis. R. 17-29. In step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since December 31, 2013, the alleged onset date of her disability. R. 19. In step two, the ALJ found that the complainant suffers from the severe impairment of schizoaffective disorder. R. 20.
In step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. R. 20. To make this determination, the ALJ considered whether the “paragraph B” criteria was satisfied. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Fed.Appx. 12.03. To satisfy the “paragraph B” criteria, Plaintiff must exhibit either an extreme limitation in one, or a marked limitation in two areas. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Fed.Appx. 12.00(A)(2)(b). The ALJ found that Plaintiff did not exhibit either an extreme limitation in one area or a marked limitation in two areas. R. 20 - 21. The ALJ also considered the “paragraph C” criteria. To satisfy the “paragraph C” criteria, the claimant must suffer from “marginal adjustment,” defined as a minimal capacity to adapt to changes in one's environment or demands that are not already part of daily life. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Fed.Appx. 12.00(G)(2)(c). The ALJ found that Plaintiff did not suffer from a marginal adjustment because she is able to handle her personal care, arrived at the consultative exam unaccompanied, and interviewed with the New York City Police Department to become a school safety agent. R. 21.
In step four, the ALJ determined that Plaintiff has the residual functional capacity (RFC) to perform a full range of work at all exertional levels but with the following non-exertional limitations: cannot work at unprotected heights or around dangerous machinery; can do simple and routine work not production rate pace; and can interact with and react appropriately with supervisors and coworkers on an occasional basis, but is limited to no more than superficial interactions with the general public. R. 22. In reaching this determination, the ALJ performed a two-step analysis. First, the ALJ found that Plaintiff suffered from an underlying medically determinable physical impairment, schizoaffective disorder, that could reasonably be expected to produce her symptoms. R. 22. Second, the ALJ evaluated the intensity, persistence, and limiting effects of the claimant's symptoms and determined that Plaintiff's statements concerning the intensity of her symptoms were not credible as they were not entirely consistent with the medical evidence and other evidence in the record. R. 22 - 24. In assessing Plaintiff's statements, the ALJ considered factors including Plaintiff's daily activities, the nature of her symptoms, the precipitating and aggravating factors of her condition, medications, and other treatment. R. 23.
The ALJ also considered the medical opinions of psychiatric consultative examiner W. Amory Carr, PhD; state agency psychological consultant M. Juriga, PhD; and the nurse practitioner who treated Plaintiff, Vanessa Alexandre, PMHNP. R. 25 - 26. Dr. Carr met with Plaintiff for an in-person exam, while Dr. Juriga reviewed only Plaintiff's records. R. 79 - 92, 360. The ALJ considered whether each of these medical opinions was supported by objective medical evidence and consistent with evidence from other sources and, as a result, determined that the opinions of Dr. Carr and Dr. Juriga were persuasive and that the opinion of NP Alexandre was not. R. 25 - 27.
In step five, based upon the vocational expert's hearing testimony, the ALJ concluded that “considering the [Plaintiff's] age, education, work experience, and residual functional capacity, the [Plaintiff] is capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” R. 29. Accordingly, the ALJ found that the Plaintiff is “not disabled” as defined in the SSA. Id.
IV. DISCUSSION
Plaintiff argues that the ALJ erred in evaluating the medical evidence with respect to the severity of Plaintiff's impairment and her RFC by (1) finding NP Alexandre's medical opinion unpersuasive; (2) finding Dr. Juriga's medical opinion persuasive; and (3) failing to explain why he did not adopt Dr. Carr's opinion that Plaintiff suffers from moderate to marked limitations in adapting or managing herself. ECF No. 11 at 8 - 20. Plaintiff also argues that the ALJ erred by finding her subjective statements regarding the severity of her symptoms not credible. ECF No. 11 at 20 - 23. As detailed below, the Court finds that the ALJ's decision is supported by substantial evidence and any legal error that may have occurred was harmless.
A. The ALJ Did Not Err in Finding the Medical Opinion of NP Alexandre Unpersuasive.
In assessing the severity of Plaintiff's impairment and her RFC, the ALJ reviewed the medical evidence and opinion of treating specialist NP Alexandre, who opined that Plaintiff suffered from “marked limitations” in two areas, “moderate to marked” limitations in seven areas, and that Plaintiff would miss work because of these limitations “two to three times per month.” R. 391 - 392. The Court finds that the ALJ did not err in finding NP Alexandre's medical opinion unpersuasive.
For applications filed on or after March 27, 2017, the “treating physician rule,” which gave deference to the opinion of the treating physician, no longer applies. Schillo, 31 F.4th at 69; Loucks v. Kijakazi, No. 21-1749, 2022 WL 2189293, at *1 (2d Cir. June 17, 2022) (summary order). The agency “will not defer or give any specific weight, including controlling weight, to any medical opinion(s) or prior administrative medical findings(s).” Id; 20 C.F.R. § 404.1520c(a). Instead, when evaluating the persuasiveness of medical opinions, pursuant to 20 C.F.R. § 404.1520c(c), the Commissioner will consider the following five factors:
(1) supportability; (2) consistency; (3) relationship of the source with the claimant, including length of the treatment relationship, frequency of examination, purpose of the treatment relationship, extent of the treatment relationship, and whether the relationship is an examining relationship; (4) the medical source's specialization; and (5) other factors, including but not limited to evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of [the SSA] disability program's policies and evidentiary requirements.Acheampong v. Comm'r of Soc. Sec., 564 F.Supp.3d 261, 266 (E.D.N.Y. 2021). The ALJ must address the first two factors, supportability and consistency, but is not required to address the remaining factors. 20 C.F.R. § 404.1520c(b). For supportability, “the more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c). For consistency, “the more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id.
Plaintiff notes that the ALJ “failed” to consider factor three (relationship) and factor four (specialization). ECF No. 11 at 18. However, the ALJ is not required to address these factors. See 20 C.F.R. § 404.1520c(b).
Plaintiff makes several arguments challenging the ALJ's findings with respect to the supportability and consistency of NP Alexandre's opinions. First, Plaintiff contends that the ALJ failed to provide more than a conclusory assertion that NP Alexandre's opinions were neither supported by her objective medical evidence nor consistent with the remainder of the record. ECF No. 11 at 10-11. The Court disagrees. As an initial matter, the ALJ noted that NP Alexandre's position was “somewhat supported” by a treatment history and progress notes “showing depressive thought content and impairment in concentration and attention.” R. 27. However, the ALJ continued to explain that NP Alexandre's progress notes indicated elsewhere that Plaintiff was “cooperative, with intact thought process, judgment and insight, and thought content and cognition within normal limits.” Id.
Moreover, while NP Alexandre found that Plaintiff had marked limitations regarding (1) completing a workday without interruptions from psychological symptoms, and (2) interacting appropriately with the public, the ALJ articulated several reasons why those opinions were not consistent with the record. R. 27. For example, the ALJ explained that during consultative examinations the claimant was “dressed appropriately and her hygiene and grooming were good.. .her speech was fluent and clear.. .and her eye contact was appropriate.” Id. The ALJ also noted that Plaintiff's “thought processes were coherent and goal directed, she was oriented, and her attention and concentration were intact.” Id. In addition, the ALJ noted that Plaintiff's hospitalizations were tied to substance use, that she had an interview with the NYPD as a school safety agent, pursued vocational training, and was not taking medications although she was advised to get therapy. Id. These findings provide more than a conclusory assertion that NP Alexandre's opinions were neither supported by objective medical evidence, nor consistent with the remainder of the record.
Second, Plaintiff argues that the ALJ erred in finding NP Alexandre's opinion inconsistent with the record based on Plaintiff's conservative course of treatment, which did not require psychiatric hospitalization except when preceded by substance use. ECF No. 11 at 13 (citing Burgess v. Astrue, 537 F.3d. 117, 129 (2d. Cir. 2008)). Under Burgess v. Astrue, 537 F.3d. 117, 129 (2d. Cir. 2008), “[t]he ALJ and the judge may not impose[] their [respective] notion[s] that the severity of a physical impairment directly correlates with the intrusiveness of the medical treatment ordered.” Id. (internal quotations and citations omitted). As a preliminary matter, Burgess may not be applicable as it predates the abolition of the “treating physician rule.” Regardless, even in the waning years of the treating physician rule, this court generally considered the conservative nature of a Plaintiff's course of treatment in making an RFC determination. Dolan v. Comm'r of Soc. Sec., No. 17-cv-4202, 2018 WL 4658804, at *17 (S.D.N.Y. Jul. 24, 2018) (“a claimant's conservative treatment is a relevant factor that an ALJ may consider in making his RFC determination”), report and recommendation adopted by 2018 WL 3991496 (S.D.N.Y. Aug. 21, 2018). This court has also looked to whether the ALJ considered the claimant's treatment collectively with other evidence in the record. Selimaj v. Comm'r of Soc. Sec., No. 17-cv-3389, 2019 WL 1417050, at *9 (S.DN.Y. Mar. 29, 2019). Here, in addition to the Plaintiff's course of treatment, the ALJ also looked to NP Alexandre's own progress notes, which state that Plaintiff was cooperative, had thought content and cognition within normal limits, and had an intact thought process, judgment, and insight. R. 27. In addition, as described above, the ALJ also considered that the Plaintiff's hospitalizations were tied to substance use, that she had an interview with the NYPD as a school safety agent, and that she participated in vocational training to become a medical assistant. R. 27.
Although a lack of psychiatric hospitalization alone does not prove conservative treatment, the ALJ may consider lack of hospitalization as an element of conservative care. Selimaj v. Comm'r of Soc. Sec., No. 17-cv-3389, 2019 WL 1417050, at *9 (S.DN.Y. Mar. 29, 2019).
Third, Plaintiff argues that the ALJ improperly found NP Alexandre's opinion inconsistent with the record by relying on the fact that Plaintiff stopped taking her medication. ECF No. 11 at 14-15. According to the Plaintiff, the ALJ should have recognized the likely possibility that Plaintiff's psychological condition caused her to cease taking her medication. Id. (citing Thompson v. Apfel, No. 97CIV.7697(LAK)(JCF), 1998 WL 720676, at *6 (S.D.N.Y. Oct. 9, 1998)). However, even without considering whether and why Plaintiff stopped taking her medication, there is still substantial evidence in the record to support the ALJ's finding that NP Alexandre's opinion was not consistent with the record. For instance, the ALJ noted that “[d]uring the consultative examination [with Dr. Carr], the claimant was dressed appropriately and her hygiene and grooming were good. Her speech was fluent and clear with adequate expressive and receptive language and her eye contact was appropriate. The claimant's memory was mildly impaired and her fund of knowledge information seemed limited. However, her thought processes were coherent and goal oriented, she was oriented, and her attention and concentration were intact.” R. 27.
In Apfel, the court reasoned that when a claimant suffers from psychological difficulties and may lack the rationality to decide whether to continue treatment, the Court should not conclude that a claimant's condition has improved because they have chosen to discontinue treatment. See Apfel, 1998 WL 720676, at *6. However, this Court is not bound by Apfel. And even if the Court were to completely disregard that Plaintiff discontinued her medication, there is still substantial evidence in the record to support the ALJ's finding, as discussed above.
Fourth, Plaintiff criticizes the ALJ for noting that Plaintiff's efforts to receive vocational training and a job conflict with NP Alexandre's opinions. ECF No. 11 at 15. However, the ALJ properly questioned the medical opinion evidence because it was inconsistent with Plaintiff's self-reported activities, including applying for jobs and attending vocational training. Michels v. Comm'r of Soc. Sec., 297 Fed.Appx. 74, 75 (2d Cir. 2008) (no deference due to medical opinion that was inconsistent with other substantial evidence, which included the claimant's own selfreported daily activities); see also Brush v. Comm'r of Soc. Sec., 294 F.Supp.3d 241, 262 (S.D.N.Y. 2018) (doctor's opinion of moderate to marked limitations in most areas of mental functioning were unsupported by his own record that included the Plaintiff's statements that she was applying for jobs); Rivera v. Comm'r of Soc. Sec., No.16-cv-8874, 2017 WL 5633313, at *9 (S.D.N.Y. Oct. 31, 2017), report and recommendation adopted by 2017 WL 5633159 (S.D.N.Y. Nov. 21, 2017) (ALJ properly found treating physician's opinion was not controlling with other evidence including the claimant's own testimony that she was attending classes regularly and completing the course requirements).
Finally, Plaintiff emphasizes that the opinion of NP Alexandre was supported by her longitudinal records and reports of various symptoms of depression and anxiety, as well as the PHQ-9 and GAD-7 scores. ECF No. 11 at 12-13; ECF No. 14 at 3. However, the standard is not whether substantial evidence supports Plaintiff's argument, but whether substantial evidence supports the ALJ's decision. Morgan v. Comm'r of Soc. Sec., No. 20CIV7124NSRPED, 2022 WL 1051177, at *9 (S.D.N.Y. Jan. 27, 2022), report and recommendation adopted, No. 20CV7124NSRPED, 2022 WL 704013 (S.D.N.Y. Mar. 9, 2022) (citations omitted). The court may only reject an ALJ's findings of facts if a reasonable factfinder would “have to conclude otherwise.” Schillo, 31 F.4th at 74.
Here, as the ALJ observed, Plaintiff did suffer from depression, impaired concentration, and attention. R. 24. However, at times, her mood, affect, attention, appearance, cognition, and concentration were normal, and she maintained a normal appearance and eye contact. Id. The overall record showed that during multiple examinations the Plaintiff had intact thought processes and judgment. R. 24, 371, 406. In fact, Plaintiff herself testified that she is in school to become a medical assistant, her program meets every weekday from 1:00 to 3:30 pm, she attends every class, and she does “not really” have any trouble handling the work because it is “pretty straightforward.” R. 55 - 56. This other substantial evidence supports the determination that NP Alexandre's opinion was not supported by her own reports nor consistent with the other record evidence.
B. Any Error in Addressing the Medical Opinion of Dr. Carr was Harmless.
Plaintiff agrees that the ALJ correctly deemed Dr. Carr's medical opinion persuasive. ECF No. 11 at 18. However, Plaintiff claims that the ALJ erred by failing to explain why he did not accept Dr. Carr's opinion that Plaintiff suffered from “moderate to marked” limitations “regulating her emotions, controlling her behavior, and maintaining well-being,” ECF No. 11 at 19-20, which is also referred to as “adapting or managing oneself.” See 20 C.F.R. Pt. 404, Subpt. P, App. 1, Fed.Appx. 12.00(E)(4). Instead, the ALJ noted that Plaintiff only has a mild limitation in this area. R. 21. In support, Plaintiff relies on legal precedent that predates the abolition of the “treating physician rule,” which says, generally, that claimants are entitled to an express recognition or explanation concerning the existence of favorable findings from treating sources. ECF No. 11 at 19 (citing Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999); Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996)). Plaintiff also cites to Second Circuit precedent for the general proposition that remand is appropriate if an ALJ fails to consider or ignores relevant evidence that is probative of disability. ECF No. 11 at 19 (citing Cutler v Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975); Lopez v. Sec'y of Dept. of HHS, 728 F.2d 148, 150-51 (2d. Cir. 1984)).
As an initial matter, Dr. Carr is not a treating physician and the “treating physician rule” no longer applies. However, even if this Court were to assume that the ALJ erred in failing to explain why he adopted parts of Dr. Carr's opinion but not others (namely, his view that Plaintiff suffered from a “moderate to marked” limitation in adapting or managing herself), any failure by the ALJ in this regard is harmless.
Remand is not appropriate if the ALJ committed harmless error, i.e., where the “application of the correct legal principles to the record could lead only to the same conclusion.” Jacqueline O. v. Comm'r of Soc. Sec., No. 1:21-CV-02468-AT-GRJ, 2022 WL 6564679, at *4 (S.D.N.Y. Sept. 2, 2022), report and recommendation adopted, No. 21CIV2468ATGRJ, 2022 WL 4463845 (S.D.N.Y. Sept. 26, 2022) quoting Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010).
As it relates to step three of the five step analysis, the ALJ must determine whether Plaintiff's impairment meets or equals the severity of one of the impairments specified in 20 C.F.R. Part 404, Subpart P, Appendix 1. To make this determination, the ALJ must consider whether the “paragraph B” criteria are satisfied. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Fed.Appx. 12.03. To satisfy the “paragraph B” criteria, Plaintiff must exhibit either an extreme limitation in one, or a marked limitation in two of the following areas:
1. Understand, remember, or apply information
2. Interact with others
3. Concentrate, persist, or maintain pace
4. Adapt or manage oneself (also referred to as regulating her emotions, controlling behavior, and maintaining well-being)
20 C.F.R. Pt. 404, Subpt. P, App. 1, Fed.Appx. 12.03. Dr. Carr did not opine that Plaintiff exhibited an extreme limitation in any of the above areas. Dr. Carr only opined that Plaintiff exhibited a marked limitation in one of the above areas, “adapt or manage oneself.” R. 25. Therefore, regardless of whether the ALJ explained his decision not to adopt this aspect of Dr. Carr's opinion, Plaintiff would still be one marked limitation short of satisfying the “paragraph B” criteria that would deem her disabled.
As it relates to step four (determination of RFC), the ALJ's failure to explain why he did not adopt Dr. Carr's findings of “moderate to marked” limitations “regulating her emotions, controlling her behavior, and maintaining well-being,” is also harmless. “An ALJ can account for moderate or even marked mental impairments, including the ability to adapt and manage oneself, through an RFC containing non-exertional limitations...” See generally Jacqueline O. v. Comm'r of Soc. Sec., No. 1:21-CV-02468-AT-GRJ, 2022 WL 6564679, at *4 (S.D.N.Y. Sept. 2, 2022), report and recommendation adopted, No. 21CIV2468ATGRJ, 2022 WL 4463845 (S.D.N.Y. Sept. 26, 2022). Here, the ALJ imposed an RFC with such limitations and stated that Plaintiff could perform a full range of work at all exertional levels but with the following non-exertional limitations:
1. Cannot work at unprotected heights or around dangerous machinery
2. Can do simple and routine work not production rate pace
3. Can interact with and react appropriately with supervisors and coworkers on an occasional basis, but is limited to no more than superficial interactions with the general public.
R. 22. Thus, the ALJ's failure to explain why he did not accept Dr. Carr's finding that Plaintiff had a marked limitation in “adapting and managing oneself” is harmless, because the ALJ imposed RFC limitations that account for Dr. Carr's finding.
In her reply papers, Plaintiff raises the new argument that the ALJ's RFC finding fails to account for Dr. Carr's opinion that Ms. Diaz has “moderate” limitations in her ability to sustain an ordinary routine and attendance at work. ECF No. 14 at 3. Plaintiff relies on Rivera v. Comm'r of Soc. Sec., No. 21-CV-1193 (CS) (JCM), 2022 WL 4482374 (S.D.N.Y. Sept. 27, 2022), in which Judge Seibel held that the ALJ's assessment of RFC failed to account for Dr. Juriga's opinion that Rivera would experience limitations in maintaining attendance. Id. However, in Rivera, Dr. Juriga's opinion was shared by three other medical professionals, making the ALJ's failure to address it arguably more significant. Rivera, 2022 WL 4482374, at *3. Here, by contrast, Dr. Carr's opinion is at odds with Dr. Juriga's opinion, which found that Plaintiff's ability to maintain routine and sustain attendance are not significantly limited. R. 87. Dr. Juriga's opinion also comports with Plaintiff's own testimony that from January 28, 2019, through May 3, 2019 (the ALJ hearing date), Plaintiff maintained perfect attendance at her medical assistant class that met every weekday. R. 55 - 56. In addition, in Rivera, Judge Seibel remanded for the ALJ to further develop the record to determine the degree to which Plaintiff would experience limitations in maintaining attendance and staying on task. Rivera, 2022 WL 4482374 at *3-4. Here, such a remand is unnecessary because, as explained above, there is already ample support in the record for the ALJ's finding, including Plaintiff's perfect attendance record at medical assistant classes that met every weekday (R. 55-56) and her own testimony that she does “not really” have any trouble handling the work because it is “pretty straightforward.” Id. Again, any error in failing to address Dr. Carr's opinion is harmless considering the substantial evidence in the record that would lead to the same conclusion reached by the ALJ.
C. The ALJ Did Not Err in Finding the Prior Administrative Medical Findings of Dr. Juriga Persuasive.
Plaintiff contends that the ALJ improperly found the medical opinion of Dr. Juriga persuasive, because Dr. Juriga's review of Plaintiff's file only “included treatment records through February 2018.” ECF No. 11 at 16-17. As an initial matter, Plaintiff fails to mention that the records Dr. Juriga reviewed also included the results from Dr. Carr's March 27, 2018, exam. Putting that aside, Plaintiff also does not mention how, if at all, the post-February 2018 treatment records could change or nullify Dr. Juriga's opinion. In fact, when assessing a medical opinion, ALJs may consider whether new evidence received after the medical source formed their opinion changes the persuasiveness of that medical opinion. 20 C.F.R § 404.1520c(c)(5). Here, the ALJ did just that. In finding Dr. Juriga's opinion consistent with the record evidence, the ALJ cited to NP Alexandre's notes from May 24, 2018, and May 30, 2018, and noted that while she had depressed thought content and impairment in attention and concentration, her thought process, judgment, and insight were all intact. R. 26.
Plaintiff also emphasizes that “20 months” had passed between the records Dr. Juriga reviewed and the hearing date. ECF No. 11 at 17. However, a medical opinion will only be deemed stale if there was a significant period between the date of the opinion and the hearing date and there are subsequent treatment notes indicating that the patient's condition deteriorated during that period. Cepeda v. Comm'r of Soc. Sec., No. 19-CV-4936 (BCM), 2020 WL 6895256, at *10 (S.D.N.Y. Nov. 24, 2020). Opinions rendered as long as two years before a hearing have been deemed acceptable. Teresi v. Comm'r of Soc. Sec., 2020 WL 5105163, at *18 (S.D.N.Y. Aug. 31, 2020). Also, even a dated opinion will not be deemed stale if it is consistent with the record as a whole and there is no evidence of an intervening event or significant deterioration. Id.
Here, although there were fluctuations in Plaintiff's condition after February 2018, there was no significant deterioration. For instance, at her mental health exam on April 10, 2018, her PHQ-9 score improved to 10 from the February 15 score of 15, and her GAD-7 score improved to 5 from the February 15 score of 18. R. 384 and 405. Then, after not taking her medication, on May 24, 2018, her PHQ-9 score worsened to 23 and her GAD-7 score worsened to 19. R. 373374. After that, Plaintiff began taking Wellbutrin and on May 30, 2023, her PHQ-9 score recovered to 11 and her GAD-7 score returned to 15. R. 370. In addition, NP Alexandre interviewed Plaintiff's boyfriend on May 30, 2023, and he noted that Plaintiff had mildly improved. R. 370. Moving forward to December 2018, during a pre-operative psychiatric examination, Plaintiff was alert and cooperative, her mood and affect were normal, and her attention and concentration were normal. R. 474. Then, on February 26, 2019, during a followup psychiatric examination Plaintiff was again found to be alert and cooperative, with normal mood, affect, attention span, and concentration. R. 465. The February 26 examination occurred only approximately two months before the ALJ hearing. In addition, no medical records after February 26 indicate a significant change in Plaintiff's mental health condition. Thus, between February 2018 and the ALJ hearing, there is no evidence of a significant deterioration in Plaintiff's condition.
Plaintiff also notes that reliance on opinions from non-examining consultants are frowned upon. ECF No. 11 at 17. Regardless, the opinion of a consultative examiner such as Dr. Carr, in conjunction with the opinion of a non-examining State agency, can constitute substantial evidence in support of an ALJ's decision. Morgan, 2022 WL 1051177, at *8-9 (S.D.N.Y. Jan. 27, 2022), report and recommendation adopted by 2022 WL 704013 (S.D.N.Y. Mar. 9, 2022) (holding that consultative examiner and non-examining State agency physician opinions constituted substantial evidence in support of the ALJ's decision); Grega v. Saul, 816 Fed.Appx. 580, 582-83 (2d Cir. 2020) (summary order)); Rosario v. Comm'r of Soc. Sec., No. 21-cv-1151, 2022 WL 4593069, at *11 (S.D.N.Y. Sept. 30, 2022).
D. The ALJ Did Not Err in Finding Plaintiff's Subjective Statements Not Credible.
In connection with the ALJ's RFC determination, Plaintiff contends that the ALJ failed to properly evaluate her subjective statements regarding the severity of her condition. ECF No. 11 at 20 - 23. Specifically, Plaintiff contends that the ALJ failed to evaluate her statements with sufficient specificity and failed to properly apply a factor-based analysis. Id.
When determining a claimant's RFC, the ALJ is required to take the claimant's subjective statements regarding her symptoms and limitations into account. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). The ALJ is not required to accept the claimant's statements without question and may exercise discretion in weighing the credibility of the claimant's testimony considering the other evidence in the record. Id. An ALJ is not required to explicitly address all statements made in the record that might implicate their evaluation of Plaintiff's credibility if the evidence of record enables the court to glean the rationale of an ALJ's decision. Hall v. Comm'r of Soc. Sec., No. 20-cv-7320, 2022 WL 6250384, at *8, 13 (S.D.N.Y. Jan. 25, 2022), report and recommendation adopted by 2022 WL 4592913 (S.D.N.Y. Sept. 30, 2022). Federal courts must show special deference to an ALJ's credibility determinations because the ALJ observed Plaintiff's demeanor while testifying. Id.
The regulations provide a two-step process for evaluating a claimant's subjective statements. Hall, 2022 WL 6250384, at *8, 13. First, the ALJ must consider whether there is a medically determinable impairment that reasonably could be expected to produce the pain or other symptoms alleged. Id.; see also 20 C.F.R. §§ 416.929(b) and 404.1529(b); SSR 16-3p, 2016 WL 1119029, at *2 - 4 (S.S.A. March 16, 2016). Second, if the ALJ finds that the individual suffers from such an impairment, then the ALJ must evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which they limit the individual's capacity for work. See SSR 16-3p, 2016 WL 1119029, at *2 - 4.
At the second step, the ALJ must consider all available evidence, including objective medical evidence and information regarding (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medications taken to alleviate symptoms; (5) any treatment, other than medication, that the claimant has received; (6) any other measures that the claimant employs to relieve symptoms; and (7) other factors concerning the claimant's functional limitations and restrictions as a result of the symptoms. 20 C.F.R. § 404.1529(c)(2)(i)-(vii) and § 416.929(c)(2)(i)-(vii); see also SSR 16-3p, 2017 WL 5180304, at *7-8 (S.S.A. Oct. 25, 2017). The ALJ is not required to “discuss all the factors, however, as long as the decision includes precise reasoning, is supported by evidence in the case record, and clearly indicates the weight the ALJ gave to the claimant's statements and the reasoning for that weight.” Simmons v. Comm'r of Soc. Sec., 103 F.Supp.3d 547, 569 (S.D.N.Y. 2015) (quotation marks omitted); see also Donofrio v. Saul, No. 18-cv-9968 (ER), 2020 WL 1487302, at *6 (S.D.N.Y. March 27, 2020) (“If the ALJ decides to reject subjective testimony concerning pain and other symptoms, he [or she] must do so explicitly and with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the ALJ's disbelief and whether his [or her] determination is supported by substantial evidence.”) (quotation marks omitted); SSR 16-3p, 2017 WL 5180304, at *10.
Here, in step one, the ALJ found that Plaintiff had a medically determinable impairment that reasonably could be expected to produce the symptoms alleged. R. 23. In step two, the ALJ found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely consistent with the medical evidence and other evidence in the record. Id. Plaintiff contends that in step two, the ALJ failed to adequately address the abovereferenced factors and explain with sufficient specificity his reasons for deeming Plaintiff's statements not credible. ECF No. 11 at 20 - 23. The Court disagrees.
In this case, the ALJ adequately applied the factor analysis and explained with sufficient specificity his decision to reject Plaintiff's subjective statements. The ALJ specifically stated that Plaintiff's statements regarding the severity of her symptoms were inconsistent with “objective medical evidence.” R. 23. Moreover, the ALJ specifically stated that he considered “factors in assessing the claimant's [ ] symptoms, and how those factors affect the claimant's ability to work”:
These include the following: the claimant's daily activities; the nature of the symptoms; precipitating and aggravating factors; the medications and any side effects; other treatment followed and measures used to relieve the symptoms; and any other factors concerning functional limitations and restrictions.
R. 23.
The ALJ then provided a multi-paragraph recantation of the record evidence concerning Plaintiff's condition. R. 23 - 24. In these paragraphs, the ALJ addressed Plaintiff's daily activities by noting that she is “in vocational school, training to become a medical assistant” (R. 23), which suggests greater functional capacity than Plaintiff previously reported. It was appropriate for the ALJ to consider this evidence in deciding to discount aspects of Plaintiff's testimony. See Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir. 2009) (per curiam) (ALJ's finding that claimant's testimony about his limitations was not fully credible was appropriate in part because of evidence regarding claimant's activities, such as caring for his one-year-old child, including changing diapers, sometimes vacuuming and washing dishes, occasionally driving, and watching television, reading, and using the computer). The ALJ also recounted the frequency of Plaintiff's symptoms by noting how, at times, she experienced “auditory hallucinations every other day and visual hallucinations [three] times per month; however she has been observed with symptoms not present.” R. 24. In addition, the ALJ indicated that smoking marijuana had previously served as a precipitating factor of Plaintiff's conditions and subsequent hospitalizations and that the drug Risperidone had been prescribed with “good effect.” See R. 23. The ALJ also noted that Plaintiff appears to have a history of providing “inaccurate information” as evidenced by conflicting statements she made to keep her driver's license. R. 24. Courts “defer to an ALJ's decision to discredit subjective complaints if the decision is supported by substantial evidence.” Watson v. Berryhill, 732 Fed.Appx. 48, 52 (2d Cir. 2018) (summary order) (citing Aponte v. Sec., Dep't of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)). As set forth in the ALJ's decision, and as explained further in the discussion of the medical opinion evidence and the treatment notes in the record, supra, there is substantial evidence to support the ALJ's determination not to credit Plaintiff's subjective statements about the severity of her symptoms. In addition, the ALJ adequately addressed the above-referenced factors and provided sufficient specificity for his reasons for deeming Plaintiff's statements not credible.
Even if the Court were to conclude that the ALJ failed to properly assess these factors and provide sufficient specificity, any failure to do so would not necessitate remand or reversal. An error is harmless when the application of the correct legal principles to the record could lead only to the same conclusion. Jacqueline O., No. 2022 WL 6564679, at *4, report and recommendation adopted, 2022 WL 4463845 quoting Zabala v. Astrue, 595 F.3d at 409. As explained above, there is ample support in the record for the ALJ's conclusion that Plaintiff's statements are not credible, including Plaintiff's successful participation in medical assistant classes and her role as a caregiver to young children. R. 55, 56, 60, and 61.
CONCLUSION
For the reasons set forth above, I respectfully recommend that Plaintiff's motion for judgment on the pleadings be DENIED and that Defendant's motion for judgment on the pleadings be GRANTED.
The Clerk of the Court is respectfully directed to terminate ECF Nos. 10 and 12 and close this case.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. See also Fed.R.Civ.P. 6(a). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable .enneth M. .aras, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections or responses to objections must be made to Judge Karas, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).