Opinion
22-cv-10803
01-29-2024
ANNETTE V. EDWARDS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
HONORABLE CATHY SEIBEL, UNITED STATES DISTRICT JUDGE
REPORT & RECOMMENDATION
VICTORIA REZNIK UNITED STATES MAGISTRATE JUDGE
Plaintiff Annette V. Edwards 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 under the Social Security Act. (ECF Nos. 1, 15). The matter is before me under an Order of Reference entered on December 18, 2022, and a notice of reassignment dated June 6, 2023. (ECF No. 8). Pending before the Court are the parties' crossmotions for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. (ECF Nos. 15, 18). For the reasons below, I respectfully recommend that Plaintiff's motion (ECF No. 15) be DENIED and that the Commissioner's motion (ECF No. 18) be GRANTED.
I. BACKGROUND
The facts below are taken from the administrative record (“R.”) of the Social Security Administration filed by the Commissioner on February 27, 2023. (ECF No. 11).
Unless otherwise noted, all references to the record (“R.”) refer to the sequentially numbered pages on the bottom right-hand corner of the administrative record filed by the Commissioner.
A. Procedural Background
Plaintiff was born on June 4, 1980. (R. 20). On or about August 30, 2019, Plaintiff filed a claim for disability insurance benefits alleging that she was disabled as of July 1, 2017. (Id; ECF No. 1). The Commissioner denied Plaintiff's application on December 18, 2019. (R. 28). On June 1, 2020, the Commissioner denied Plaintiff's request for reconsideration. (R. 41). Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held on November 12, 2020. (R. 10 - 16). The ALJ issued a decision on August 6, 2021, and denied Plaintiff's claim. (R. 46 - 55). Plaintiff requested review of the ALJ's decision, which the Appeals Counsel denied. (R. 1). On December 22, 2022, Plaintiff brought this civil action in the Southern District of New York. (ECF No. 1).
B. Testimonial, Medical, and Vocational Evidence
Both parties have provided summaries of the testimonial, medical, and vocational evidence contained in the administrative record. (ECF Nos. 15, 18). Based on an independent and thorough examination of the record, the Court finds that the parties' summaries of the evidence are largely comprehensive and accurate. The Court thus adopts these summaries and discusses the record in more detail only as necessary to decide the issues raised. See, e.g., Banks v. Comm'r of Soc. Sec., No. 19-cv-929 (AJN) (SDA), 2020 WL 2768800, at *2 (S.D.N.Y. Jan. 16, 2020), report and recommendation adopted by 2020 WL 2765686 (S.D.N.Y. May 27, 2020).
II. APPLICABLE LEGAL PRINCIPLES
A. Standard of Review
This Court “engage[s] in limited review” of the Commissioner'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,” Schillo, 31 F.4th at 74, 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. “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.
Unless otherwise indicated, case quotations omit all internal citations, quotation marks, footnotes, and alterations.
But “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). 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).
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. But “[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 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 RFC, 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). But “[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.
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 under the above-described five-step sequential analysis. (R. 46 - 55). In step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since July 1, 2017. (R. 48). In step two, the ALJ determined that the claimant has the following severe impairments: degenerative disc disease of the cervical and lumbar spines, gastroesophageal reflux disease, and hypertension. (R. 48). In step three, the ALJ held that none of Plaintiff's impairments or combination of impairments meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 49). In step four, the ALJ found that Plaintiff could not perform any of her past relevant work and that: “the claimant has the residual functional capacity to perform sedentary work as defined in 20 C.F.R. 404.1567(a) except that the claimant may occasionally reach overhead, operate foot controls, push/pull, climb ramps/stairs, balance, stoop, or kneel; may never climb ladders, ropes or scaffolds, crouch, or crawl; may frequently reach in all other directions and handle; may tolerate occasional exposure to extreme cold/heat, wetness/humidity, and environmental irritants (i.e., fumes, odors, gases & dusts); and the claimant must avoid all use of hazardous machinery and all exposure to unprotected heights.” (R. 49 - 50). In reaching this determination the ALJ performed a two-step analysis. (Id.). First, the ALJ determined that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms. (Id.). Second, the ALJ concluded that Plaintiff's statements about the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the evidence in the record. Finally, in step five, the ALJ concluded that considering Plaintiff's “age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy” that she can perform including document preparer, cutter and paster, and addresser. (R. 54 - 55).
IV. DISCUSSION
Plaintiff contends that the ALJ failed to properly assess certain medical evidence, neglected to appropriately address Plaintiff's carpal tunnel syndrome (CTS), issued an RFC that is not supported by substantial evidence, and incorrectly found Plaintiff's statements about the severity of her medical condition not credible. (ECF Nos. 15 and 21). For the reasons below, I respectfully recommend that the ALJ's decision be affirmed.
A. The ALJ Properly Assessed the Medical Opinion Evidence
In assessing a claimant's disability claim, ALJs must consider medical opinions and adhere to certain guidelines regarding how to assess them. 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 64, 69 (2d Cir. 2022); 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, under 20 C.F.R. § 404.1520c(c), the Commissioner will consider these 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.Diaz v. Comm'r of Soc. Sec. Admin., No. 22CV2256KMKVR, 2023 WL 6390172, at *3 (S.D.N.Y. Sept. 29, 2023); 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 ones. 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 argues that the “ALJ legally erred by failing to sufficiently articulate his reasons for finding persuasive the opinions of non-examining physicians Drs. Farber and Dhiman and the two state agency physicians.” (ECF No. 15 at 15). Plaintiff thus argues that the ALJ inadequately addressed the factors of supportability and consistency because his analysis was too conclusory. (Id. at 14 - 20). But an “ALJ need not recite every piece of evidence that contributed to the decision, so long as the record permits us to glean the rationale of an ALJ's decision.” See Cichocki v. Astrue, 729 F.3d 172, 178, n.3 (2d Cir. 2013).
All references to page numbers of ECF filed documents refer to the blue sequential numbers on the top of each filed page.
In their reply papers, Plaintiff refers to the Second Circuit's summary order in Barrere v. Saul for the proposition that, in the absence of an adequate explanation, this Court can only glean the ALJ's rationale from the record if it contains “robust support” for the ALJ's determination. (ECF No. 21 at 5) (quoting 857 Fed.Appx. 22, 24 (2d. Cir. 2021)). But Barrere - a non-binding summary order - did not purport to change the relevant standard of review to “robust support,” whatever that might mean. 857 Fed.Appx. at 24. Rather, the Court simply noted that there was “robust support” in the record to support the ALJ's finding in that case, alongside “evidence in the record to the contrary.” Id. Indeed, the relevant standard of review continues to be whether there is “substantial evidence” in the record as a whole to support the ALJ's finding. Schillo, 31 F.4th at 74. And substantial evidence is defined “as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
As it relates to supportability, the ALJ found Dr. Farber's opinion persuasive that “the claimant would be able to work in a sedentary capacity with breaks from sitting as needed and a 5 - 10 pound lifting restriction,” because it was “supported by the doctor's review of the claimant's medical file.” (R. 53). The ALJ then cited to Dr. Farber's report (Exhibit 19F), which lists and explains the many medical records on which he based his review, dating from 2017 to March 5, 2020. (Id.). A review of Dr. Farber's report shows that he assesses the extensive medical record with citations, provides some analysis, includes information that postdates Plaintiff's surgery in October 2019, and also relies on reports from Plaintiff's various treating physicians. (R. 598 - 603). Among the cited medical records is an examination report from Orthopedist Dr. Zaretsky, dated February 28, 2020 (R. 598 - 602), in which Dr. Zaretsky reported that despite some remaining symptoms after surgery, Plaintiff's neck and low back pain “has improved 50%.” (R. 601).
As it relates to consistency, the ALJ stated that Dr. Farber's opinion is “consistent with the objective evidence of multilevel degenerative disc disease in the claimant's cervical and lumbar spines.” (R. 53). The ALJ then cited to a report of MRIs conducted by Dr. Lee Trosterman (Exhibit 2F), which notes that the “[p]atient complains of low back pain radiating to bilateral hips, legs with weakness when standing and difficulty walking.” (R. 278). Although it would have been better for the ALJ to specifically describe or quote from the references he cited, the Court can glean the ALJ's rationale from the record citations themselves. Cichocki, 729 F.3d at 178, n.3. That is particularly true here because just before the ALJ discusses Dr. Farber's opinion, he discusses much of the same medical evidence found in Dr. Farber's report. (R. 50 -53).
Plaintiff argues that “[n]either the ALJ nor Dr. Farber explained what Dr. Farber used to support [his] opinion.” (ECF No. 15 at 12). But, as explained above, Dr. Farber's report not only lists the medical records he relied on, but also specifically refers to certain records in the body of his report to support his opinions. (R. 598 - 602).
Plaintiff also argues that Dr. Farber's opinion that Plaintiff “had the capacity for sedentary work” with “breaks from sitting as needed” is not consistent with the record. (ECF No. 15 at 16 - 18). However, as explained infra, there are numerous points in the record that support Plaintiff's capacity for sedentary work with limitations. See Section C below.
Likewise, for Dr. Dhiman, the ALJ stated that he found this opinion about Plaintiff's limitations - including that Plaintiff could occasionally lift or carry up to 20 pounds and stand or walk for 30 minutes - “persuasive, as it is supported by the medical expert's review of the record (Exhibit 29F at 2, 4 - 9), and is consistent with the objective medical evidence (Exhibit 2F at 2, 4).” (R. 53). Again, although it would have been better for the ALJ to specifically mention and quote from Exhibits 29F or 2F (the references he cited), by including these citations the Court can glean the rationale of his decision. Cichocki, 729 F.3d at 178, n.3. Exhibit 29F is Dr. Dhiman's report, which has multiple sections in which he responds to the prompt “[i]dentify the particular medical or clinical findings which support your assessment.” (R. 779 - 787). Although Dr. Dhiman's report contains minimal analysis or explanation, it does identify the medical evidence in the record that supports his various assessments about Plaintiff's physical impairments and ability to do work-related activities. (R. 780-87). One such medical report includes Exhibit 15F (a report from Dr. Michael Healy dated 3/12/2020 and titled “Internal Medicine Examination”), which states that Plaintiff has “full ROM [range of motion] of shoulders, elbows, forearms, and wrists bilaterally,” only “mild to moderate” limitation “lifting,” and a “good” prognosis. (R. 577 - 578, 779 - 787). Other cited medical reports include serial physical examinations by Plaintiff's various treating physicians both before and after her surgery in October 2019. (R. 784-785, 787). As noted above, Exhibit 2F (a report from Dr. Lee Trosterman dated 1/10/2018 regarding MRI results) notes that Plaintiff has some weakness when standing and difficulty walking. (R. 278). Thus, the Court can glean the ALJ's rationale from a review of Dr. Dhiman's report, the cited evidence in Dr. Dhiman's report, and the ALJ's discussion of that same evidence earlier in his opinion.
Plaintiff makes the same argument that the ALJ failed to adequately explain his assessment of supportability and consistency for the opinions of the state agency physicians. (ECF No. 15 at 20). But, as with Dr. Dhiman's and Dr. Farber's opinions, this Court can glean the ALJ's rationale from the record. The ALJ stated in substance that the conclusions of the state agency physicians were supported by or consistent with the record and then cited to those portions of the record. (R. 53). For instance, the ALJ identified that the state agency reviewers concluded that Plaintiff could “occasionally lift up to 10 pounds and frequently lift less than 10 pounds” and “could sit for 6 hours in a day.” (Id.) The ALJ then noted that these conclusions are consistent with Exhibit 29F (Dr. Dhiman's report), which found that Plaintiff could frequently lift up to 10 pounds and could sit for 8 hours at one time, or 6 hours in an 8-hour workday. (R. 53, 782 - 783).
In any event, any error that the ALJ may have committed by not providing more explicit reasoning in assessing the medical opinions of Drs. Farber and Dhiman, and the state agency reviewers is harmless. Generally, an error is harmless, and remand is not necessary, when applying the correct standards could only lead to one conclusion. See generally Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010). Here, much of the medical evidence discussed or cited in the reports of Drs. Farber and Dhiman and the state agency reviewers was also described by the ALJ in his opinion, with citations to medical evidence both before and after Plaintiff's surgery in October 2019. (R. 51-52). That extensive medical record included a physical examination in November 2019 (after Plaintiff's surgery), and a consultative examination by Dr. Healy in March 2020, from which the ALJ concluded that “while the claimant still has diminished range of motion in the cervical and lumbar spine, she does not show evidence of positive straight leg raise tests, decreased reflexes or sensation, or any deficits in grip strength or manual dexterity after the October 2019 surgery.” (R. 52). The ALJ thus found “that the claimant is capable of a wide range of sedentary work.” (Id.) Thus, even if the ALJ had provided more explicit reasoning for finding certain medical opinions persuasive, the Court would have reached the same conclusion that the ALJ properly assessed the medical opinions based on the cited record.
Ex. 10F at 1, 2 (R. 455, 456).
Ex. 15F at 3 (R. 577).
B. The ALJ Sufficiently Addressed Plaintiff's Carpal Tunnel Syndrome (CTS)
Plaintiff argues that the ALJ erred by not considering her CTS at step two and then by failing to properly consider its effects when determining her RFC at step four. (ECF No. 15 at
22 - 24). But failing to address a condition at step two is harmless error if the ALJ finds other impairments severe, proceeds to the later steps, and then considers the previously unaddressed condition at those later steps. Reices-Colon v. Astrue, 523 Fed.Appx. 796, 798 (2d Cir. 2013) (summary order) (holding that failing to discuss impairments at step two was harmless error when the ALJ specifically considered those impairments at later steps); Rodriguez v. Saul, No. 19-CV-9066 (JLC), 2021 WL 738348, at *1 (S.D.N.Y. Feb. 25, 2021) (“The failure to address a condition at step two will constitute harmless error, and therefore not warrant remand, if, after identifying other severe impairments, the ALJ considers the excluded conditions or symptoms in the subsequent steps and determines that they do not significantly limit the plaintiff's ability to perform basic work.”). That is precisely what happened here.
In her reply papers, Plaintiff notes that other courts in this Circuit have held that “the step-two harmless-error doctrine” only applies to non-severe impairments, not non-medically determinable impairments. (ECF No. 21 at 3 (citing Karlene S. v. Comm'r of Soc. Sec., No. 6:21-CV-06005 EAW, 2023 U.S. Dist. LEXIS 15671, at *15 (W.D.N.Y. Jan. 30, 2023))); Michele H. v. Comm'r of Soc. SEC., No. 5:21-cv-00013 (MAD/TWD), 2022 U.S. Dist. LEXIS 165962, at *9-10 (N.D.N.Y. Sep. 13, 2022)). But Plaintiff's argument is misplaced. In Karlene S., the court noted that it was unclear whether the ALJ considered the disputed impairment in later steps of the sequential evaluation, which is not the case here. Karlene S., No. 6:21-CV-06005 EAW, 2023 U.S. Dist. LEXIS 15671, at *17. And in Michele H., the court ultimately found that any error in step-two was “harmless” because “the ALJ continued beyond step two and discussed Plaintiff's [impairment] as part of his RFC determination.” No. 5:21-cv-00013 (MAD/TWD), 2022 U.S. Dist. LEXIS 165962, at *12-13. For the same reason, remanding this case would not be useful as the ALJ already sufficiently considered Plaintiff's CTS in step four by noting that it is “mild,” and also by noting that Plaintiff has treatment notes that do not reflect deficits in grip strength or dexterity. (R. 51, 52).
The ALJ did not mention Plaintiff's CTS at step two but found that she had other impairments that were severe and proceeded to the later steps. (R. 48 - 54). Then, when determining Plaintiff's RFC at step four, the ALJ explicitly stated that Plaintiff suffers from CTS but noted that it is “mild.” (R 51). The ALJ's finding is buttressed by the fact that there is only one study in the entire record that reflects a current diagnosis of Plaintiff's CTS, dated January 2018. (ECF No. 18 at 13; R. 298). Also, as Defendant notes, Plaintiff received medical evaluations that reflected full strength in her wrist flexors and extensors, grip strength, and intact hand and finger dexterity as recently as March 12, 2020 - just a few months before her hearing with the ALJ. (R. 577). In this Court's view, the ALJ sufficiently considered the severity of Plaintiff's CTS when determining her RFC, making remand for further consideration unnecessary.
C. Substantial Evidence Supports the ALJ's RFC Finding that Plaintiff Can Perform Sedentary Work with Certain Limitations
In assessing Plaintiff's RFC, the ALJ concluded that Plaintiff could perform sedentary work with certain limitations. (R. 49 - 50). Plaintiff argues that the ALJ erred in reaching this conclusion because “the ability to sit for six hours is crucial to finding” that Plaintiff can engage in sedentary work, and the ALJ failed to provide the requisite narrative discussion to support such a finding. (ECF No. 15 at 21 (citing SSR 96-8p (S.S.A. July 2, 1996) and Espinal v. Comm'r, No. 20-cv-4594 (JMA), 2022 U.S. Dist. LEXIS 172695, at*10 (E.D.N.Y. Sep. 23, 2022))). But here, the ALJ did explain that Dr. Dhiman and both state agency reviewers (Drs. Padmaraju and Periakaruppan) opined that Plaintiff could sit for six hours. (R. 53). Likewise, Dr. Farber opined that Plaintiff could “work in a purely sedentary capacity with breaks from sitting as needed.” (R. 602). That finding is consistent with the ability to perform sedentary work with certain limitations. As the Second Circuit has explained, sedentary jobs, in general, do not require sitting motionless for six hours. See Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (“[t]he regulations do not mandate the presumption that all sedentary jobs in the United States require the worker to sit without moving for six hours, trapped like a seat-belted passenger in the center seat on a transcontinental flight. No such counterintuitive presumption exists.”); see also SSR 96-9p, 1996 WL 374185 (S.S.A. July 2, 1996) (noting that sedentary work generally contemplates morning, lunch, and afternoon breaks at about two-hour intervals).
Plaintiff also argues that when the “record indicates that a claimant has significant limitations with regard to [her] ability to sit for extended periods of time, the ALJ should engage in a detailed discussion concerning the claimant's restrictions.. .and the RFC must be specific as to the frequency of the individual's need to alternate sitting and standing.” (ECF No. 15 at 18 (quoting Moss v. Comm'r, 2022 U.S. Dist. LEXIS 171107, at *48 (S.D.N.Y. Sept. 20, 2022))). Plaintiff contends that because the record here reveals trouble sitting, including Dr. Farber's opinion that Plaintiff required “breaks from sitting as needed,” the ALJ needed to address this when formulating the RFC. (ECF No. 15 at 18). But even as Plaintiff points out, for the ALJ to address sitting limitations in the RFC, the record should indicate that those limitations are “significant.” Moss, 2022 U.S. Dist. LEXIS 171107 at *48. Indeed, in Moss, at various times, the plaintiff reported difficulty sitting for as long as “twenty to thirty minutes,” “fifteen minutes,” and even “one to two minutes.” Id. Here, the sitting limitations appear to be far less significant, as Dr. Dhiman concluded that Plaintiff could “sit for 8 hours at a time or 6 hours in an 8-hour workday,” and both state agency reviewers (Drs. Padmaraju and Periakaruppan) concluded that Plaintiff “could sit for 6 hours in a day.” (R. 25, 37, and 783). Although Plaintiff refers to various medical evidence of her lumbar spine issues, she does not clearly identify medical opinions that say she could not sit for six hours with breaks. At most, she cites medical evidence in which she self-reports that sitting for extended periods of time can aggravate her back pain. But that is not inconsistent with sitting with breaks, as defined by the statute. SSR 96-9p, 1996 WL 374185, at *6.
Again, sedentary work contemplates a “morning break, lunch period, and an afternoon break at approximately 2-hour intervals.” SSR 96-9p, 1996 WL 374185 at *6 - 7.
Plaintiff also notes that the ALJ found the record supported greater limitations than those found by Dr. Healy, who opined that Plaintiff has “mild to moderate limitation[s] in sitting, standing, walking, bending, lifting, and climbing stairs.” (R. 578). But the broad statement from Dr. Healy that the ALJ found unpersuasive lumped together a bunch of activities, including sitting, and did not clearly identify which of them supported “mild to moderate limitations.” An ALJ's opinion should be “read as a whole in the context of the record before him.” Green v. Saul, No. 18CV02857 (JGK)(KHP), 2019 WL 2996502, at *8 (S.D.N.Y. June 19, 2019), report and recommendation adopted by Green v. Berryhill, No. 18CV2857 (JGK), 2019 WL 2992088 (S.D.N.Y. July 9, 2019). When read in combination with the other statements made by the ALJ about Plaintiff's ability to sit, it seems clear that the ALJ did not view “sitting” as an activity in which Plaintiff had specific limitations. Indeed, the record includes multiple medical opinions stating that Plaintiff can sit for several hours (for example, the reports from Dr. Dhiman (R. 783), Dr. Padmaraju (R. 25), and Dr. Periakaruppan (R. 37)), all of which the ALJ specifically cited and relied upon.
Similarly, Plaintiff notes that sedentary work requires an individual to stand/walk for a total of about two hours during an eight-hour workday and argues that the ALJ's RFC failed to address Dr. Dhiman's finding that Plaintiff could only stand/walk for one-hour total. (ECF No. 15 at 20-21 (citing SSR 83-10p, 1983 WL 31251, at *5 (S.S.A. 1983). But two state agency reviewing doctors did not share this opinion and concluded that Plaintiff could stand/walk for two hours. (R. 53). SSR 96-9p notes that an individual who can stand for “slightly less than two hours,” “would not cause the occupational base [for sedentary work] to be significantly eroded.” SSR 96-9p, 1996 WL 374185, at *6 - 7. In contrast, if an individual can only stand/walk for a few minutes, that “would erode the unskilled sedentary occupational base significantly.” Id. SSR 96-9p also states that for individuals who can stand/walk between slightly less than 2 hours and only a few minutes, it “may” be appropriate to consult a vocational resource but does not mandate it as a requirement. Id. Thus, there is conflicting information about how long Plaintiff can stand/walk and the ALJ was not required to consult another resource. Generally, when conflicting evidence exists, the ALJ need not explicitly reconcile every conflicting shred of medical testimony; their opinion will be upheld if it is well supported. See Zabala, 595 F.3d at 410 (“Although there was some conflicting medical evidence, the ALJ's determination that Petitioner could perform her previous unskilled work was well supported.”). Indeed, an ALJ's findings “must be given conclusive effect” so long as they are supported by substantial evidence, even if “the administrative record may also adequately support contrary findings on particular issues.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010).
Plaintiff cites to SSR 83-10 but incorrectly lists the publication date as “July 2, 1996.” (ECF No. 15 at 16); SSR 83-10, 1983 WL 31251. As a result, it appears that Plaintiff also may have been relying on SSR 96-9p, which was published on July 2, 1996. SSR 96-9p, 1996 WL 374185. SSR 96-9p addresses many of the same topics as SSR 83-10, including that sedentary work requires a person to be able to stand/walk for a total of approximately two hours. SSR 83-10p, 1983 WL 31251 at *5; SSR 96-9p, 1996 WL 374185 at *6 - 7.
Here, there is substantial evidence to support the ALJ's RFC finding that Plaintiff can perform sedentary work with certain limitations. (R. 49 - 54). For instance, as discussed in the ALJ's opinion, in March 2019, Dr. Wilson noted no injury to the cervical or lumbar spine and no deficits in motor strength, reflexes, or sensation. (R. 51). On physical examination in November 2019, after her surgery, Plaintiff “had moderate tenderness and positive Spurling tests in the cervical spine, but had negative straight leg raise tests and negative Tinel's signs.” (R. 52, citing Exhibit 10F at ¶ 455, 456). By March 2020, Plaintiff “appeared to be in no acute distress, with a normal stride and stance, slightly widened gait, 50% squat” and “needed no assistive devices.” (R. 52, 575 - 578). The ALJ also noted that “claimant had decreased range of motion in the cervical and lumbar spine” but had “no deficits in reflexes or sensation, and full manual dexterity.” (R. 52, 575 - 578). And while Plaintiff did have some diminished range of motion in the cervical and lumbar spine, Dr. Dhiman and both state agency reviewers concluded that Plaintiff could sit for six hours in a day. (R. 25, 37, 52, 53, 575 - 578, 783). Indeed, Dr. Farber specifically concluded that the claimant could work in a sedentary capacity. (R. 602). Based on this extensive record, the ALJ concluded that “recent treatment notes show that while the claimant still has diminished range of motion in the cervical and lumbar spine, she does not show evidence of positive straight leg raise tests, decreased reflexes or sensation, or any deficits in grip strength or manual dexterity after the October 2019 surgery.” (R. 52). This is particularly relevant to the ALJ's finding that Plaintiff can do sedentary work, which involves “occasionally lifting or carrying articles like docket files, ledgers, and small tools.” 20 C.F.R. § 404.1567(a). Thus, substantial evidence supports the ALJ's finding that Plaintiff can perform sedentary work with certain limitations, and it should be given conclusive effect.
D. The ALJ Properly Evaluated Plaintiff's Statements About Her Symptoms
When determining a claimant's RFC, the ALJ is required to consider the claimant's subjective statements about her symptoms and limitations. Genier, 606 F.3d at 49. In considering a claimant's symptoms, the ALJ must follow a two-step process. 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). 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. 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. Id. The ALJ's decision “must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.” SSR 16-3p, 2016 WL 1119029, at *9. Here, the ALJ determined that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that Plaintiff's statements about the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the evidence in the record. (R. 49 - 50).
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). For the reasons explained infra, I respectfully recommend that the Court find the ALJ's decision sufficiently supported and articulated.
Plaintiff testified that “she could walk up to a few blocks, could not carry a gallon of milk with one arm, and has trouble with daily activities.” (R. 50). Plaintiff also noted on her function report that she has “difficulty in grooming and household chores,” “could not lift any weight,” and had “difficulty in standing, walking, sitting, climbing stairs, kneeling, squatting, reaching, or using her hands.” (Id.). Plaintiff argues that the ALJ improperly evaluated these statements when he concluded that they “are not entirely consistent with the medical evidence and other evidence in the record.” (ECF No. 15 at 20 - 25). Specifically, Plaintiff contends that the ALJ failed to clearly articulate specific reasons for his opinion and selectively summarized the medical evidence. (Id.).
Importantly, the ALJ may exercise discretion in weighing the credibility of a claimant's testimony and is not required to accept the claimant's statements without question. Genier, 606 F.3d at 49. In fact, federal courts must show special deference to an ALJ's credibility determinations because the ALJ heard the Plaintiff's testimony. See 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). Ultimately, 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). Substantial evidence is “more than a mere scintilla” and is evidence that a “reasonable” fact finder might accept as adequate to support a conclusion. McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)).
Here, substantial evidence supports the ALJ's decision that Plaintiff's statements are inconsistent with medical evidence and other evidence in the record showing Plaintiff can perform sedentary work with limitations. The ALJ based his opinion on objective medical evidence including x-ray and MRI results, nerve conduction studies, medical treatment notes, multiple doctors' opinions, and Plaintiff's own previous statements. (R. 50 - 54). Of note, the ALJ highlights that in March 2019, Dr. Wilson noted no injury to the cervical or lumbar spine and no deficits in motor strength, reflexes, or sensation. (R. 51). The ALJ continues by noting that after her October 2019 surgery, Plaintiff reported improvement to her low back pain and months later appeared to be in no acute distress with a normal stride, stance, and no assistive devices. (R. 52). Moreover, as the ALJ noted, after the October 2019 surgery, Plaintiff did not show evidence of “deficits in grip strength or manual dexterity.” (R. 52).
Plaintiff contends that “[a]lthough the ALJ details the results of Ms. Edwards' various x-rays, MRIs, and nerve conduction studies, he does not explain how these findings, which are numerous and significant, undermine her subjective allegations of debilitating pain and extremity numbness.” (ECF No. 15 at 25). As an initial matter, the ALJ's decision cites to the specific test results in the record, which helps the Court to glean their relevance. (R. 50 -51). Regardless, after the ALJ mentioned the x-ray, MRI, and nerve conduction studies, he then discussed the medical treatment notes and doctors' opinions, which serve to supplement and clarify his decision regarding how the Plaintiff's statements about her symptoms are inconsistent with the medical evidence. (R. 51 - 54).
Plaintiff notes that in subsequent medical appointments she reported experiencing high levels of pain. (ECF No. 15 at 29). But “subjective assertions of pain alone cannot ground a finding of disability.” Genier, 606 F.3d at 49. Thus, the ALJ appropriately compared Plaintiff's reports of pain to other evidence in the record, and looked to the limiting effects of Plaintiff's symptoms on important functions such as dexterity and grip strength. See Genier, 606 F.3d at 49; R. 52.
Plaintiff points to some conflicting evidence, and, indeed, the ALJ himself acknowledges that Plaintiff's statements are not “entirely” consistent with the record. (R. 50). For instance, Plaintiff notes that the ALJ did not mention some evidence including certain SLR test results, trigger point injections, and physical examination findings. (ECF No. 15 at 22 - 25). As a result, Plaintiff accuses the ALJ of “cherry-picking” evidence that supports his decision. (ECF No. 15 at 22 - 25) (citing Balotti v. Comm'r of Soc. Sec., 605 F.Supp.3d 610, 619 - 620 (S.D.N.Y. 2022) (noting that although an ALJ need not recite every piece of evidence, he also cannot cherry-pick supportive evidence)). Yet, when conflicting evidence exists, the ALJ need not reconcile every conflicting shred of medical testimony if their opinion is otherwise well supported. Zabala, 595 F.3d at 410 (2d Cir. 2010) (upholding ALJ's opinion despite conflicting medical evidence because it was “well supported”); Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983) (noting that an ALJ is not required to explicitly reconcile every conflicting shred of medical testimony). In addition, as noted above, an ALJ's findings “must be given conclusive effect” where reasonably supported by the record, even if “the administrative record may also adequately support contrary findings on particular issues.” Genier, 606 F.3d at 49.
Here, despite some conflicting evidence, there is enough evidence for a reasonable factfinder to conclude - as the ALJ did - that Plaintiff's statements about the severity of her symptoms conflict with other medical evidence that she can perform sedentary work with some limitations. As explained above, the ALJ based his opinion on a wide range of evidence that includes reports of no injury to the cervical or lumbar spine, and no post-operative deficits in motor strength, sensation, grip strength or manual dexterity. (R. 52). Because the ALJ's decision on Plaintiff's statements is supported by substantial evidence, I respectfully recommend deferring to the ALJ's decision.
V. CONCLUSION
For the reasons 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.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties 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 Cathy Seibel, 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 Seibel, 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 to be entered. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).