Ferreras-Matos v. Comm'r of Soc. Sec.

Full title: RALDIRIS FERRERAS-MATOS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY…

Court: United States District Court, S.D. New York

Date published: Nov 15, 2021

20 Civ. 07106 (NSR)(JCM) (S.D.N.Y. Nov. 15, 2021)

Opinion

20 Civ. 07106 (NSR)(JCM)

11-15-2021

RALDIRIS FERRERAS-MATOS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

JUDITH C. MCCARTHY UNITED STATES MAGISTRATE JUDGE

Honorable Nelson S. Roman, United States District Judge:

REPORT AND RECOMMENDATION

JUDITH C. MCCARTHY UNITED STATES MAGISTRATE JUDGE

Plaintiff Raldiris Ferreras-Matos (“Plaintiff”) commenced this action on September 1, 2020 pursuant to 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security (the “Commissioner”), which denied Plaintiff's application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket No. 1). Presently before the Court are: (1) Plaintiff's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, (Docket No. 22), accompanied by a memorandum of law, (Docket No. 23) (“Pl. Br.”); (2) the Commissioner's cross-motion for judgment on the pleadings, (Docket No. 26), accompanied by a memorandum of law, (Docket No. 27) (“Comm'r Br.”); and (3) Plaintiff's reply in support of Plaintiff's motion for judgment on the pleadings, (Docket No. 28) (“Pl. Reply Br.”). For the reasons set forth below, I respectfully recommend Plaintiff's motion be granted, the Commissioner's cross-motion be denied, and the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Report and Recommendation.

I. BACKGROUND

Plaintiff was born on December 31, 1958. (R.¹ 51). Plaintiff applied for DIB and SSI on September 18, 2018. (R. 177-89). In both applications, Plaintiff alleged a disability onset date of June 25, 2018 for a date of injury of March 11, 2015. (R. 216; 303). Plaintiff's application was initially denied on December 11, 2018, (R. 110-13), after which she requested a hearing on January 8, 2019. (R. 119-20). A hearing was held on August 7, 2019 before Administrative Law Judge (“ALJ”) Raymond Prybylski. (R. 45-80). ALJ Prybylski issued a decision on September 4, 2019 denying Plaintiff's claim. (R. 17-27). Plaintiff requested review by the Appeals Council, which denied the request on June 29, 2020, (R. 1-4), making the ALJ's decision ripe for review.

1 Refers to the certified administrative record of proceedings relating to Plaintiff's application for social security benefits, filed in this action on February 12, 2021. (Docket No. 19). All page number citations to the certified administrative record refer to the page number assigned by the Social Security Administration (“SSA”).

A. Medical Evidence Relating to Plaintiff's Physical Impairments

1. Medical Evidence Before the Disability Onset Date

i. Jeanette Torres, M.D.

Plaintiff saw Jeanette Torres, M.D. (“Dr. Torres”) of Vail Healthcare Medical, PLLC, from October 17, 2011 to June 15, 2018 for a variety of medical concerns including hypertension and chronic back pain. (R. 394-481).² Dr. Torres performed a depression screening during many of these visits (e.g., R. 394, 396, 400, 410), concluding on at least one occasion that Plaintiff had anxiety and depression but was not suicidal. (R. 394). Dr. Torres also stated in her December 11, 2016 notes that Plaintiff was not taking meloxicam 15 MG. (R. 410).

2 The Court notes that these records are difficult to read due to the quality of the scan provided. Given that the parties did not refer to these records in their briefs, and the ALJ only made scant reference to specific portions of these records, the Court did not find it necessary to request a better copy and provides a brief analysis of the legible and relevant portions.

ii. Magnetic Resonance Imaging (MRI) of the Left Shoulder and Lumbar Spine

Plaintiff received an MRI of her left shoulder on June 18, 2015 at University Diagnostic Medical Imaging. (R. 304). The MRI revealed AC joint arthropathy with downward projecting spur and strain or partial tear to the supraspinatus tendon. (Id.).

On July 1, 2015, Plaintiff underwent an MRI of her lumbar spine at Stand-Up MRI of the Bronx, which showed disc bulges and disc herniations in a variety of locations. (R. 303). On December 23, 2016, Plaintiff got an updated MRI, which did not show any significant changes. (R. 317). A third MRI of the lumbar spine on November 11, 2017 showed that the previous disc bulges with the L1/L2 disc herniation were not conspicuous and had either resolved or reabsorbed. (R. 377). It also revealed L4/L5 moderate bilateral facet joint effusions. (Id.).

iii. Ruby E. Kim, M.D.

On October 14, 2015, Plaintiff had an initial office visit with Ruby E. Kim, M.D. (“Dr. Kim”), a provider at Central Medical Services of Westrock (“CMSW”). (R. 303). She presented with low back pain and left shoulder pain sustained in a work-related injury that occurred on March 11, 2015 at the entrance to her school. (Id.). Plaintiff was still working at the school at the time of this visit. (Id.). Plaintiff characterized her left shoulder pain to Dr. Kim as a 9 out of 10, explaining that it was constant, sharp and stabbing, but improved with rest. (Id.). She stated that her lower back pain is a 7 or 8 out of 10 in intensity, and is constant, aching and worsened by standing, household activities, sitting and certain movements, but improved by lying on her back. (Id.). Dr. Kim noted that Plaintiff had a normal gait and was able to walk on her heels and toes. (R. 304). Her lumbar spine was symmetric without atrophy with significantly decreased range of motion, “with flexion and extension with pain at end ranges[, ] [p]ositive paraspinal tenderness and pain with facet loading [with] [m]yospasms present.” (Id.). Plaintiff did not have any “tenderness over the bilateral PSIS or greater trochanters” and had intact range of motion in the hip with minimal pain at end ranges. (Id.). Dr. Kim indicated that Plaintiff's shoulder was symmetric without atrophy, and had significantly decreased range of motion “with concordant pain at end ranges with left shoulder flexion, abduction, and internal rotation.” (Id.). Plaintiff did not have tenderness to palpation over the biceps tendon or AC joint and had negative adduction signs, but positive Neer's and Hawkin's signs. (Id.). After performing a neurologic exam, Dr. Kim concluded that Plaintiff's bilateral upper and lower extremities were normal, and that her muscle tone and reflexes were normal and symmetric. (Id.). For neural tension signs, Dr. Kim found negative Spurling's sign, but positive left slump and straight leg raise test. (Id.). After the examination, Dr. Kim diagnosed lumbar radiculopathy, lumbar disc herniation, low back pain, lumbar facet joint pain, lumbar sprain and strain, and left shoulder pain. (R. 305).

On November 3, 2015, Dr. Kim administered a lumbar medial branch block injection. (R. 301). At a follow-up visit on November 25, 2015, Dr. Kim noted that the injection administered on November 3 provided Plaintiff with 60% relief for five days. (R. 306). Plaintiff reported at this visit that the pain across her lower back no longer radiated to the posterior aspect of the left lower limb to the knee. (Id.). Dr. Kim administered a left subacromial bursa steroid injection. (R. 307). Dr. Kim added (1) left subacromial bursitis, and (2) left rotator cuff tendonitis and partial tear to her previous diagnoses. (R. 307-08). Dr. Kim ordered a lumbar medial branch nerve radiofrequency ablation at bilateral L3, L4 and L5, and recommended that Plaintiff continue on naproxen and continue with physical therapy. (R. 308).

iv. Michael Hearns, M.D.

Plaintiff saw Michael Hearns, M.D. (“Dr. Hearns”) at CMSW on March 29, 2016, at which time she was still working at her job full-time. (R. 337). The visit was in relation to her worker's compensation claim. (Id.). At the visit, Plaintiff complained of left shoulder pain with limited range of motion and back pain with radiation down her left leg. (Id.). Dr. Hearns noted his impression that Plaintiff suffered from lumbar radiculopathy, lumbar bulging disc, lumbar sprain, and an impingement and sprain of the left shoulder. He determined that Plaintiff suffers from partial mild disability, at 25%, and that she should return to Dr. Friedman for left shoulder injection versus surgery, stating that he thinks “she will end up undergoing surgery, ” and referred her to pain management for injections. (R. 337-08). He also suggested that she continue with Tylenol because she is still working with kids. (R. 338).

In a March 17, 2017 progress report for the worker's compensation board, Dr. Hearns reported that Plaintiff suffered from 30% temporary impairment, was currently working, and could return to work without limitations. (R. 328).

v. Richard E. Pearl, M.D.

Plaintiff saw Richard E. Pearl, M.D. (“Dr. Pearl”), a provider at CMSW, on May 20, 2016 in connection with her worker's compensation claim. (R. 370). She complained of severe pain, especially at night and during the day. (Id.). Dr. Pearl indicated that he had previously administered a lidocaine injection in her subacromial space that made the pain immediately resolve, “which is significant for severe impingement with rotator cuff pathology.” (Id.). Dr. Pearl determined that Plaintiff was 25% to 50% disabled and his impression was that she suffered from impingement. (Id.).

vi. Isaiah Pinckney II, M.D.

On August 31, 2016, Plaintiff had a visit at CMSW with Isaiah Pinckney II, M.D. (“Dr. Pinckney”). (R. 347). Plaintiff had pain in her left shoulder, specifically in the supraspinatus muscle where she experienced acromioclavicular joint tenderness. (Id.). She also had tenderness of the deltoid muscle, and her forward elevation was limited to fifty degrees with decreased abduction and adduction. (Id.). Plaintiff's lumbar spine examination revealed tenderness of the right and left latissimus dorsal muscle, with more pain on the right than the left, with flexion extension limited to forty degrees and with lateral flexion restricted in movement. (Id.). Dr. Pinckney noted that Plaintiff was supposed to have surgery on her left shoulder on September 7, 2016 but wanted to reschedule because of her work commitments. (R. 348). Dr. Pinckney determined that Plaintiff's only restriction was a weight limit greater than ten pounds. (Id.).

Plaintiff saw Dr. Pinckney again on September 30, 2016, at which point Dr. Pinckney diagnosed displaced lumbar disc and subacromial impingement. (R. 339-40). Dr. Pinckney noted that Plaintiff was not working at the time of this visit and had a disability status of temporary partial disability (TPD). (R. 339). He also indicated that Plaintiff was seen by Dr. Pearl, who requested left shoulder acromioplasty with subacromial decompression and treated her with Depo-Medrol lidocaine injection. (Id.). Dr. Pinckney again assessed that Plaintiff's only restriction was a weight limit greater than ten pounds. (Id.).

On November 2, 2016, Plaintiff followed up with Dr. Pinckney and reported that the new job site was worse on her back because of the physical activities of caring for young children, including bending, reaching and pulling up the children. (R. 357). Dr. Pinckney again assessed that Plaintiff's only restriction was a weight limit greater than ten pounds. (Id.).

On March 20, 2018, Dr. Pinckney noted that Plaintiff complained of recurrent left shoulder pain that occurred only when she picked things up and she ranked the pain a 3 out of 10. (R. 317). Plaintiff ranked her back pain a 9 out of 10, noting that the pain radiated down to her right hip and right leg and remained constant despite rest. (Id.). Her right hip pain had become worse, and she ranked it a 6 or 7 out of 10. (Id.). In evaluating prior MRI tests, Dr. Pinckney assessed that there was “no significant change since 7/1/2015.” (Id.). He indicated that Plaintiff was currently working, though her disability status was TPD (20%). (R. 318). Dr. Pinckney again assessed that Plaintiff's only restriction was a weight limit greater than ten pounds. (Id.).

Plaintiff returned to Dr. Pinckney on May 1, 2018. (R. 343). Dr. Pinckney again indicated that Plaintiff was currently working, and her disability status was TPD (20%). (Id.). Dr. Pinckney again assessed that Plaintiff's only restriction was a weight limit greater than ten pounds. (R. 344). He stated that it was his medical opinion that Plaintiff is unable to work but that she continued to go to work in pain and estimated that “she will be unable to return to work next semester.” (Id.).

2. Medical Evidence After the Disability Onset Date

i. Landis L. Barnes, D.O.

On June 26, 2018, Plaintiff presented to Landis L. Barnes, D.O. (“Dr. Barnes”)³ of CMSW with pain in her left shoulder and lumbar spine. (R. 499-500). Upon a physical examination, Dr. Barnes noted that Plaintiff has positive tenderness diffusely in her left shoulder, with decreased range of motion in flexion and extension and a positive Neer's test. (R. 500). She also had L4-L5 spinous process tenderness with the paraspinal muscles bilaterally at ¶ 4 and palpable muscle spasms. (Id.). He concluded that Plaintiff suffers from left rotator cuff tendonitis, displaced lumbar disc and subacromial impingement. (Id.). Dr. Barnes also remarked that Plaintiff responded well to physical therapy, which led to less pain and more mobility, so he requested three therapy sessions for eight weeks. (R. 501). He assessed her disability status as temporary total disability. (Id.).

3 When discussing Dr. Barnes' report in his analysis, the ALJ incorrectly cites to Dr. Li's report, and vice versa. (R. 26). Dr. Barnes' report is found at Ex. 13F pages 1-3, which is R. 499-501. Dr. Li's report is found at Ex. 13F pages 4-8, which is R. 502-06. The ALJ also incorrectly states these doctors' opinions regarding Plaintiff's level of disability. The correct recitation of their opinions in this regard is as follows: Dr. Barnes states that Plaintiff has a “temporary total” disability, (R. 501), and Dr. Li states Plaintiff has 100% temporary total disability, (R. 504).

ii. Tong Li, M.D.

On July 13, 2018, Tong Li, M.D. (“Dr. Li”) of CMSW examined Plaintiff. (R. 502). Dr. Li noted that Plaintiff was retired due to pain and appeared in mild to moderate distress. (R. 503). Dr. Li reviewed Plaintiff's MRI records and noted his impression that Plaintiff had left rotator cuff tendonitis, displaced lumbar disc and subacromial impingement. (R. 504). Dr. Li concluded that Plaintiff was temporarily totally disabled (“100% TTD”) with the following restrictions: “limited lifting, pushing, pulling, carrying heavy objects[, ] [n]o climbing, no reaching, handling or repetitive motion.” (Id.). At this visit, Dr. Li diagnosed posttraumatic left shoulder supraspinatus tendinitis and administered an injection to the left supraspinatus tendon. (R. 505).

iii. Isaiah Pinckney II, M.D.

On October 4, 2018, Plaintiff had another visit with Dr. Pinckney, at which point he assessed her status as temporary total disability (“TTD”) and noted her work status as retired as of July 2018. (R. 512). Dr. Pinckney again assessed that Plaintiff's only restriction was a weight limit greater than ten pounds. (R. 513).

iv. Jeanette Torres, M.D.

Plaintiff saw Jeanette Torres, M.D. (“Dr. Torres”) of Vail Healthcare Medical, PLLC, from November 8, 2018 to June 20, 2019 for a variety of medical concerns, including hypertension, stomach cramps, headache, bilateral knee pain, left foot pain, panic episodes, body aches and fatigue. (R. 526-52). Several treatment notes from these visits state that Plaintiff did not have tenderness in her back (R. 529, 533), though on March 15, 2019 and June 20, 2019, Dr. Torres noted tenderness in Plaintiff's back. (R. 542, 544). On June 20, 2019, Plaintiff reported body aches and pain in her bilateral knee and left jaw that interfered with her normal activity all the time; she rated this pain a 6 out of 10. (R. 547). In a functional assessment, however, Dr. Torres rated Plaintiff at an eight, indicating high-function and independence in daily activities. (Id.).

v. Carol McLean Long, M.D. - Consultative Examination

Plaintiff saw Carol McLean Long, M.D. (“Dr. Long”), an internal medicine provider at Industrial Medicine Associates, P.C., on December 4, 2018 for a consultative orthopedic examination. (R. 483). Plaintiff presented with back pain with sciatica symptoms, anxiety and hypertension. (Id.). Dr. Long's notes summarize Plaintiff's history of back pain, diagnosed in approximately 2015 after a fall at work. (Id.). Plaintiff informed Dr. Long that it is difficult for her to stand or sit or walk for long periods of time and that she cannot do any heavy lifting. (Id.). She indicated that she is able to walk one to two blocks, sit and stand for thirty minutes each, and go up about ten steps at home. (R. 484). She stated that she can cook two to three days per week, wash a plate about two times per week, buy a loaf of bread every two weeks. (Id.). She indicated that she showers and dresses daily, usually without assistance, even though she is in pain. (Id.). Plaintiff rated her pain at ¶ 5 to 9 out of 10 for sciatica symptoms and a 6 to 9 out of 10 for the back pain. (R. 483).

Dr. Long noted that Plaintiff appeared in moderate distress and agitated secondary to the pain in her back, showing poor effort secondary to pain. (R. 485). Her gait was slow and shufflelike, and she was unable to walk on her heels and toes. (Id.). While Plaintiff used no assistive device at the time of the examination, Dr. Long remarked that “she may need one, at least a cane, most likely four prong.” (Id.). Plaintiff needed no help changing for the exam, but used a step stool and the table to get on and off the exam table and used the counter and the chair handle to rise from the chair. (Id.).

Dr. Long indicated that Plaintiff's hand and finger dexterity were intact, and she had a grip strength of “about 3/5 bilaterally.” (Id.). Plaintiff's cervical spine revealed that she was having more problems on the left side of her neck, with “flexion 10 to 15 degrees, lateral flexion around 10 to 15 degrees, and rotary movements 10 to 20 degrees bilaterally.” (Id.). She did not have cervical or paracervical pain or spasm, or trigger points. (Id.). Dr. Long also noted bilateral shoulder forward elevation and abduction was less than 95 degrees, adduction was 15 to 20 degrees, internal rotation was 20 to 30 degrees, external rotation was 40 to 50 degrees. (Id.). Bilateral elbows flexion/extension was about 90 to 100 degrees and pronation and supination were 50 to 60 degrees, with movements being very slow. (R. 485-86). As for Plaintiff's wrist movements, Dr. Long noted “dorsiflexion and palmar flexion around 30 degrees and the deviations about 10 degrees bilaterally.” (R. 486). Plaintiff had no joint inflammation, effusion or instability, no muscle atrophy and no sensory abnormality. (Id.). As for her thoracic and lumbar spine, Dr. Long noted “flexion/extension less than 5 degrees, lateral flexion approximately 5 degrees, and rotary movements approximately 5 degrees bilaterally, ” with no spinal or paraspinal tenderness, no spasm and no scoliosis or kyphosis. (Id.). Plaintiff's back movements were slow, and she complained of back pain, but there were no trigger points. (Id.). Her hips had flexion/extension of approximately fifty degrees bilaterally and knees approximately seventy degrees bilaterally. (Id.). Rotational movements, abduction and adduction of hips were grossly normal, with no muscle atrophy, sensory abnormality or joint effusion, inflammation or instability. (Id.). Plaintiff had “[s]trength 3-4/5 in proximal and distal muscles bilaterally.” (Id.).

On the basis of this examination, Dr. Long concluded that Plaintiff had moderate limitation in her ability to maneuver the cervical spine, to reach up, out and backwards with bilateral upper extremities, and to maneuver the elbows, wrists and hands to grip, grasp or hold, push or pull, flex and extend the LS spine, the hips and the knees bilaterally. (R. 486-87). Dr. Long also determined that Plaintiff appears to have a mild to moderate limitation in walking long distances and in squatting. (R. 487). Dr. Long diagnosed Plaintiff with history of injury with back pain and sciatica symptoms on right side, anxiety, hypertension and being overweight. (R. 486).

vi. R. Uppal, D.O. - State Agency Medical Consultant

R. Uppal, D.O. (“Dr. Uppal”) reviewed Plaintiff's record on December 7, 2018. (R. 8395). Dr. Uppal concluded that Plaintiff could occasionally lift or carry ten pounds, frequently carry less than ten pounds, stand or walk with normal breaks for two hours, and sit with normal breaks for about six hours in an eight-hour workday. (R. 90-91). Dr. Uppal also assessed that Plaintiff's ability to push and/or pull was limited in her left, upper extremities. (R. 91). Dr. Uppal found that Plaintiff could occasionally climb ramps/stairs, balance, stoop, kneel, crouch and crawl, and could never climb ladders/ropes/scaffolds. (Id.). Plaintiff had no limitations in handling, fingering, feeling, but was limited in front, lateral and overhead reaching. (R. 91-92). Dr. Uppal noted that Plaintiff had left shoulder impingement and cervical spine degenerative disc disease (“DDD”). (R. 92). Dr. Uppal concluded that Plaintiff has the residual functional capacity (“RFC”) to do her past relevant work as a financial aid advisor as actually performed and determined that Plaintiff was not disabled. (R. 94).

vii. Lisa Daley, M.D.

On January 11, 2019, Plaintiff saw Lisa Daley, M.D. (“Dr. Daley”) at CMSW. (R. 519). A physical examination revealed that Plaintiff had positive Neer and Hawkins tests, and a range of motion with abduction and flexion to 90 degrees. (Id.). Dr. Daley noted that in Plaintiff's lumbar and thoracic spine, she had positive tenderness to palpation of the lumbar and thoracic paravertebral muscles, an antalgic gait and a straight leg raising test revealed pain in the lower back. (Id.). Dr. Daley documented her impression that Plaintiff suffered from rotator cuff tendinitis, lumbar disc derangement and thoracic and lumbar sprain. (R. 520). Dr. Daley noted that Plaintiff had several restrictions, including limited sitting, standing, walking, climbing, repetitive motion, as well as lifting, pushing and pulling no more than ten pounds. (Id.). Dr. Daley assessed that Plaintiff suffered from total temporary disability. (Id.).

viii. Joanna Gumtang, Physical Therapist (“PT”)

On January 15, 2019, Plaintiff had a functional capacity evaluation performed by Joanna Gumtang, PT (“PT Gumtang”)⁴ of CMSW, at the referral of Dr. Pinckney. (R. 515). PT Gumtang noted that Plaintiff is unable to work full-time because she can only work up to 6 hours and 27 minutes per day, including breaks for alternating sitting and standing. (Id.). Plaintiff was found to be able to sit for a total of two hours, forty-two minutes, with only fifteen minutes of sitting at a time. (R. 516). As for standing, Plaintiff could stand for a total of four hours and three minutes, with only thirty minutes of standing at one time. (Id.). PT Gumtang remarked that “the unskilled sedentary occupational base is significantly eroded because (s)he is unable to sit for five hours and seventeen minutes, and sit at least two hours at one time.” (R. 515). PT Gumtang stated that Plaintiff “reported reliable pain ratings 0.0% of the time, ” and remarked that “the functional abilities demonstrated in this evaluation do not represent a true and accurate representation of [Plaintiff's] overall physical capabilities secondary to the unreliable pain reports.” (Id.). PT Gumtang found that the results of the evaluation represented a minimal level of functioning for Plaintiff. (Id.).

4 “Although physical therapists are not acceptable medical sources, the opinions of physical therapists may constitute substantial evidence where the opinions are well documented and supported by the medical evidence.” Ortiz v. Saul, No. 1:19-CV-00942 (ALC), 2020 WL 1150213, at *7 (S.D.N.Y. Mar. 10, 2020); 20 C.F.R. § 404.1502.

ix. Carl Gastanes, Nurse Practitioner ⁵ (“NP”)

5 The regulations were amended in 2017 to add advanced practice registered nurses (a category that includes nurse practitioners) to the list of acceptable medical sources, which applies to Plaintiff's claims as they were filed after March 27, 2017. Cherry v. Comm'r of Soc. Sec. Admin., 813 Fed.Appx. 658, 661 (2d Cir. 2020) (citing 20 C.F.R. § 404.1502(a)(7)).

Plaintiff saw Carl Gastanes, NP (“Nurse Gastanes”) on January 25, 2019. (R. 539). Nurse Gastanes administered an Activities of Daily Living (“ADL”) functional assessment and determined that Plaintiff scored an 8, indicating that she is high-functioning and independent. (Id.). Namely, Plaintiff was independent in bathing, dressing, feeding, toileting, grocery shopping, housekeeping, using the telephone, handling finances and ambulating. (Id.).

x. Michael Hearns, M.D.

Plaintiff saw Dr. Hearns again on March 21, 2019, and complained of left shoulder pain, limited range of motion, weakness in the left arm, back pain and difficulty with prolonged sitting, standing and walking. (R. 553). Dr. Hearns determined after examination that Plaintiff has impingement syndrome, a limited range of motion with forward flexion to 110 degrees, abduction to 100 degrees, internal rotation to 70 degrees and weakness in the left arm. (R. 554). An examination of her back disclosed multiple trigger points and muscle spasms. (Id.). Dr. Hearns determined that Plaintiff “has [a] 75% partial and permanent disability as a result of his abnormal physical examination findings, persistent symptoms, FCE findings and her diagnoses of lumbar radiculopathy, and sprain left shoulder.” (Id.). Dr. Hearns noted his impression that Plaintiff suffers from sprains to the left shoulder and lower back, left shoulder impingement syndrome and multiple bulging herniated discs of the lumbosacral spine. (R. 555). He recommended not working, monitoring and symptomatic care. (Id.).

xi. Zahra Virani, M.D.

Plaintiff saw Zahra Virani, M.D. (“Dr. Virani”), a provider at Jacobi Medical Center, on July 24, 2019. (R. 570). Plaintiff complained of right knee pain on and off for the past year, especially when walking and bending, as well as occasional pain in her left knee. (Id.). However, Plaintiff denied that the knee pain was due to a fall or trauma and stated that it may be due to being shot by a BB gun ten years ago. (Id.). Dr. Virani observed that Plaintiff used a cane, ambulated slowly with a cane, and had a slight limp. (Id.). Plaintiff also complained of a herniated disc in her neck and back. (Id.). Dr. Virani recommended follow-up with her primary medical doctor as well as physical therapy. (R. 571).

B. Medical Evidence Relating to Plaintiff's Psychological Impairments

1. Medical Evidence After the Disability Onset Date

i. Laura Kerenyi, Ph.D. - Psychiatric Consultative Examination

Laura Kerenyi, Ph.D. (“Dr. Kerenyi”) administered a psychiatric consultative examination to Plaintiff on December 4, 2018. (R. 489-93). Dr. Kerenyi noted that Plaintiff had no history of psychiatric hospitalization and was not being seen by a psychiatrist or a psychologist at the time of the examination. (R. 489). Plaintiff reported depressive symptoms such as difficulty falling asleep and frequent waking twice a night, dysphoric mood, crying spells, hopelessness, loss of usual interests, irritability, fatigue, loss of energy, diminished sense of pleasure, diminished self-esteem and social withdrawal. (R. 489-90). Plaintiff also reported anxiety-related symptoms such as excessive apprehension and worry, becoming easily fatigued, irritability and muscle tension. (R. 490). Plaintiff denied any suicidal or homicidal ideation, intent or plan in the last thirty days, as well as denied any social or other phobias, manic symptomatology, formal thought disorder, cognitive or any other symptomatology. (Id.). Plaintiff conveyed that she also suffered from panic attacks, symptoms of which included chest pain and a need to walk back and forth. Dr. Kerenyi noted that Plaintiff has a history of trauma in the form of domestic violence and her trauma symptoms include nightmares two to three times a week and hypervigilance. (Id.). Plaintiff also informed Dr. Kerenyi that she experiences panic attacks, with symptoms involving chest pain and a need to walk back and forth. (Id.).

Dr. Kerenyi observed on a mental status examination that Plaintiff's demeanor was cooperative; manner of relating adequate; thought processes coherent and goal-directed with no evidence of hallucinations, delusions or paranoia; attention and concentration intact; intellectual functioning average; and insight and judgment fair. (R. 490-91). Plaintiff's speech was marked by mild articulation problems, her affect appeared depressed and at times tearful, and her recent and remote memory skills were impaired. (R. 491).

As for daily functioning, Plaintiff was able to dress, bathe and groom herself, as well as cook and shop for herself and manage her own finances. (R. 492). Plaintiff was unable to clean or do laundry independently and reported that she was assisted by her son. (Id.). Plaintiff stated that she was unable to drive and took public transportation instead. (Id.). She reported socializing with her son, daughters and grandchildren, with whom she has good relationships. (Id.).

Dr. Kerenyi concluded that Plaintiff is not limited in her ability to understand, remember or apply simple directions or instructions, but mildly limited with complex directions or instructions. (Id.). Dr. Kerenyi assessed that Plaintiff is also not limited in her ability to reason and make judgments for work-related decisions; sustain concentration and perform a task at a consistent pace; sustain an ordinary routine and regular attendance at work; maintain personal hygiene and appropriate attire; and be aware of normal hazards and take appropriate precautions. (Id.). Dr. Kerenyi determined that Plaintiff was mildly limited in her ability to interact adequately with supervisors, co-workers and the public, as well as in her ability to regulate emotions, control behavior and maintain well-being. (Id.). Dr. Kerenyi noted that any difficulties are caused by psychological issues and that the results of her examination appeared consistent with psychiatric problems but did not appear significant enough to interfere with Plaintiff's ability to function on a daily basis. (Id.). She diagnosed Plaintiff with unspecified depressive disorder and unspecified anxiety disorder, and recommended that Plaintiff engage in individual psychological therapy, psychiatric intervention and vocational training and rehabilitation. (R. 492-93).

ii. Dr. T. Inman-Dundon, Ph.D. - State Agency Medical Consultant

On December 10, 2018, T. Inman-Dundon, Ph.D. (“Dr. Inman-Dundon”), a state agency medical consultant, reviewed Plaintiff's medical records. (R. 83-89). Dr. Inman-Dundon concluded that Plaintiff had a mild ability to understand, remember or apply information; interact with others; concentrate, persist or maintain pace; and adapt or manage herself. (R. 88). Dr. Inman-Dundon assessed that Plaintiff's anxiety and obsessive-compulsive disorders were non-severe. (Id.).

iii. Jensy Linares, Licensed Clinical Social Worker

On January 30, 2019, Plaintiff began weekly psychiatric and psychotherapy sessions for Panic Disorder with Agoraphobia with Jensy Linares, Licensed Clinical Social Worker⁶ (“LCSW Linares”) at the Institute for Family Health Center for Counseling. (R. 574). LCSW Linares noted that Plaintiff was responsive to treatment. (Id.).

6 Social workers are not considered acceptable medical sources even under the new regulations. Rivas v. Berryhill, No. 1:17-CV-05143 (ALC), 2018 WL 4666076, at *10, n.6 (S.D.N.Y. Sept. 27, 2018) (citing 20 C.F.R. § 404.1502(a)). “Nevertheless, an ALJ should consider evidence from “other sources, ” such as social workers, on important issues like the severity of an impairment and any related functional effects.” Susan B. v. Comm'r of Soc. Sec., No. 1:20-CV-00546(EAW), 2021 WL 3266231, at *4 (W.D.N.Y. July 30, 2021).

On April 12, 2019, Plaintiff reported taking her medication and stated that there were no barriers to compliance. (R. 578). LCSW Linares assessed that Plaintiff was oriented to time, place and person, and appeared within normal limits. (Id.). Plaintiff's mood was unremarkable, and her affect was appropriate to content. (Id.). LCSW Linares and Plaintiff discussed Plaintiff's unhealthy dynamics with her adult son as well as how to improve them, and Plaintiff was receptive to the interventions provided. (Id.).

At Plaintiff's visit on April 26, 2019, Plaintiff reported not taking her medication and experiencing the following symptoms: nervousness/anxiety, difficulty with concentration and anxiety/panic attacks. (R. 587). LCSW Linares observed Plaintiff's mood to be anxious, with the increased anxiety caused by financial stress. (Id.). Plaintiff was again “engaged effectively in session and was receptive to interventions provided.” (Id.).

In May and June 2019, Plaintiff's use of medication was inconsistent. At her May 10, 2019 and June 14, 2019 visits, Plaintiff reported that she was taking her medication and was 100% compliant for the previous week. (R. 592, 606). However, at her May 17, 2019, June 5, 2019 and June 21, 2019 visits, Plaintiff reported not taking her medication and feeling nervous/anxious as well as suffering from anxiety/panic attacks. (R. 596, 601, 610). At the June 21, 2019 visit, Plaintiff told LCSW Linares that she planned to vacation in the Dominican Republic for a month, and was looking forward to increasing her exercise, expressing that her aches and pains tend to increase due to lack of exercise and body movement. (R. 611).

On July 26, 2019, Plaintiff again reported being noncompliant with her medication, feeling nervous/anxious and depressed, and experiencing loss of energy and sleep disturbances. (R. 618). Plaintiff stated that she developed severe knee pain on her vacation and was feeling sadness due to her limited mobility. (R. 619). She planned to follow up to get proper treatment for her knee pain. (Id.).

At her August 2 and 9, 2019 visits, Plaintiff again reported not taking her medication and feeling nervous/anxious. (R. 625, 630). On both occasions, LCSW Linares opined that Plaintiff appeared within normal limits, engaged effectively in session and was receptive to the interventions provided. (Id.).

Generally, as the Commissioner notes, the conclusions of Doctors Hearns, Pearl, Barnes, Li and Daley regarding the percentage of Plaintiff's total disability were reached in connection with Plaintiff's worker's compensation claim, which has a different standard than claims under the Social Security Act. Brodie v. Comm'r of Soc. Sec., No. 19-CIV-06968(PAE)(RWL), 2020 WL 5754607, at *7 (S.D.N.Y. Aug. 25, 2020), report and recommendation adopted sub nom. Brodie v. Saul, 2020 WL 5775234 (S.D.N.Y. Sept. 28, 2020).

C. Nonmedical Evidence

1. Plaintiff's Function Report

On October 8, 2018, Plaintiff completed a Function Report. (R. 228-37). Plaintiff stated in the report that she lived in an apartment with her family, and though she usually woke up early, she spent most of the day lying in bed or sitting on the couch. (R. 228). Plaintiff reported that before her injury, she could stand or sit for long periods of time, go shopping and lift heavy bags, none of which she could do now. (R. 229). She stated that her pain does not impact her ability to bathe, feed herself or use the toilet, but when getting dressed, she has to sit down to put on her clothes and when caring for her hair, it is painful to lift her arm. (R. 229-30). Plaintiff reported preparing meals every two days, though she indicated that sometimes she doesn't cook because it is hard for her to stand for a long time and stated that she doesn't cook anything that takes too long to make. (R. 230). She also said she can only wash dishes if she takes breaks to rest. (Id.). Her son assists her with cleaning, laundry and any repairs around the apartment. (R. 231).

Plaintiff reported that she is capable of traveling independently, but only goes outside when needed because it's hard for her to walk or stand for long periods of time and because she is afraid of her surroundings. (Id.). She only leaves the house for church or doctor's visits. (R. 232). Plaintiff stated that she was able to pay bills and that her ability to handle her money did not change as a result of her injury. (Id.). She spends her days watching television or reading. (Id.). She used to dance but can no longer do so, and now she cannot read for too long. (Id.). She also does not socialize anymore. (R. 233).

Plaintiff described her abilities in the following manner: she could lift no more than five pounds, stand up to half an hour at a time, walk 3-4 blocks, sit up to half an hour at a time, climb stairs only if she has to, reach but with pain, and use her hands when necessary. (R. 233). She does not kneel or squat. (Id.). Plaintiff reported needing to stop and rest frequently in order to finish activities. (R. 234). If she experiences stress or changes in her schedule, she gets upset, anxious, has a headache and gets palpitations. (R. 235).

Plaintiff stated that her anxiety began in 2011 and increased due to her inability to do things that she was previously able to do. (Id.). During a typical panic attack, Plaintiff feels tightening in her chest, rapid heartbeat, lightheadedness, restlessness, confusion and sometimes needs to go to the emergency room. (Id.). Her triggers include being in crowded places, as well as memories of lost relatives and sick family. (Id.).

2. Plaintiff's Testimony

Jay Anklowitz, Esq. represented Plaintiff at the August 7, 2019 hearing. (R. 48). Plaintiff testified that until June 25, 2018 she worked in a school with children who have developmental delays. (R. 54-55). In that capacity, she worked an eight-hour day, pushing wheelchairs to help transport students, as well as sitting with students in the classroom, yard and cafeteria. (R. 5556). She would have to be on her feet for approximately three hours during the workday and the rest of the time she was sitting, walking and doing other activities with the students. (R. 56-57). Plaintiff explained that she sustained an injury at work in March 2015 that caused pain in her back and neck. (R. 57-58). Plaintiff had been waiting for a child to come out of the school bus when she tripped on the rug in front of the building and fell onto her extended arms. (R. 58). After the fall, she went to the emergency room. (Id.). She was subsequently able to return to work again. (Id.). She ultimately stopped working on June 25, 2018 because her pain was getting worse. (Id.).

Plaintiff testified that before working at this school for children with disabilities she had worked at Sanford Brown and Technical Career Institute as a financial aid counselor, helping the students and giving advice on how to pay their tuition. (R. 60). At that job, Plaintiff stated that she was seated practically all day except when making copies, and further explained that she would not be able to do that job today due to the amount of time spent sitting and standing. (R. 61-62).

Plaintiff described that she suffers from a “very painful back, ” and that the pain starts from her neck and goes all the way to her lower back. (R. 62). She also stated that the pain is getting worse, impacting her hips, knee and ankles. (Id.). After she was injured, she went to the emergency room, where they performed an X-ray and gave her some painkillers. (Id.). She then followed up with workers' compensation doctors. (R. 63-64). One of her doctors told her surgery was not recommended, and her experience with physical therapy was that it helped the pain short-term but by the time she got home, she was in pain again. (R. 64). For the pain, Plaintiff takes ibuprofen 800 and Tylenol 500, and uses menthol ointment. (R. 64-65). Plaintiff also has swelling and pain in her knees, ankles and feet, for which her doctors prescribed high blood pressure medication and water pills. (R. 66). She also has new pain in her knee and went to the emergency room for it, where they took some X-rays and recommended physical therapy. (Id.). Sitting for too long causes her pain and she feels like she has to get up. (R. 75). Currently, she is not receiving treatment or physical therapy for her back because worker's compensation is not paying for it anymore and her regular doctor is not sending her to treatment because insurance is not paying for it since it was a job-related injury. (R. 76).

Plaintiff stated that during her typical day, she spends time lying down and doing some chores like dishes. (R. 68-69). However, due to her pain, she needs to take breaks to sit down when she is standing and washing dishes, and she cannot mop, sweep or clean the house due to the twisting to her back - her son helps with those chores. (R. 63, 69). Plaintiff testified that she cooks three meals per week. (R. 72). Plaintiff does not leave the house unless she needs to, other than for doctor's visits, therapy sessions or church, and does not socialize with friends or the community. (R. 70). She does not have any hobbies. (Id.). She said that her “mind is kind of crazy lately” due to anxiety and panic. (R. 72). Plaintiff also stated that she travels to her home country, Dominican Republic, about once a year and was there in January of the year of the hearing. (R. 74). She said the plane ride was painful for her and she used the wheelchair service in the airport. (R. 75).

3. Vocational Expert Testimony

Vocational Expert (“VE”) Michael Smith (“Smith”) testified that Plaintiff's most recent work consisted of employment as a teacher's assistant, which is generally performed at a light exertional level. (R. 77). Her prior work was characterized as financial aid counselor, which is generally performed at a sedentary exertional level. (Id.). VE Smith stated that Plaintiff performed her work at both jobs compatible with these levels. (R. 77-78).

The ALJ posed a hypothetical to VE Smith, asking him to assume an individual of Plaintiff's age, education and work experience, with the following limitations: the individual can perform the full range of sedentary work as defined in the Dictionary of Occupational Titles (“D.O.T”), but could never climb any ladders, ropes or scaffolds. (R. 78). She is limited in terms of overhead reaching with either arm, and is limited in terms of handling and fingering in the left arm, which she can do frequently but not constantly. (Id.). VE Smith testified that such an individual would be able to do Plaintiff's past work as a financial aid counselor. (Id.).

The ALJ then posed a second hypothetical to VE Smith, adding the additional limitation that because of pain, the individual needs to lie down for half an hour of every workday and this is not necessarily something that can be done during a break. (Id.). VE Smith testified that this limitation would rule out any job, including her past work, because no employer would allow that, especially if it was unpredictable when the person needed to lie down and if this was needed on an ongoing basis. (R. 79).

D. The ALJ's Decision

ALJ Prybylski first determined that Plaintiff met the insured status requirements of the Social Security Act (“Act”) through December 31, 2022. (R. 19). Thereafter, ALJ Prybylski applied the five-step procedure established by the Commissioner for evaluating disability claims. See 20 C.F.R. §§ 404.1520(a) and 416.920(a). (R. 19-27). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since June 25, 2018, the alleged disability onset date. (R. 19). At step two, the ALJ found that Plaintiff had the following severe impairments: (1) cervical spine and lumbar spine degenerative disc disease with herniations and stenosis, (2) left shoulder tendinosis and impingement, and (3) obesity. (Id.). The ALJ further found that Plaintiff's gastroesophageal reflux disease, hypertension, depressive disorder and anxiety disorder were non-severe impairments. (R. 20). At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). (R. 22).

The ALJ determined that Plaintiff had the RFC to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), except that she cannot climb ladders, ropes or scaffolds; cannot reach overhead with both arms; and is limited to frequent handling and fingering with the non-dominant left hand. (Id.). In arriving at the RFC, the ALJ considered all of Plaintiff's symptoms and their consistency with the objective medical evidence and other evidence in the record. (Id.). The ALJ ultimately determined that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (R. 23). The ALJ reviewed the opinion evidence in the record, finding “persuasive” the opinions of the following doctors: (1) Dr. Carol McLean, (2) Dr. Uppal, (3) Dr. Pinckney, and (4) Dr. Daley. The ALJ found the opinions of the following doctors “unpersuasive”: (1) Dr. Michael Hearns, (2) Dr. Tong Li, and (3) Dr. Landis Barnes. (R. 25-26).

At step four, the ALJ determined that Plaintiff was capable of performing her past relevant work as a financial aid counselor as this job does not require the performance of work-related activities precluded by her RFC. (R. 26). The ALJ thereafter concluded that Plaintiff was not disabled under the Act. (R. 27).

II. DISCUSSION

Plaintiff argues that the ALJ's decision should be reversed and remanded for further administrative proceedings for four reasons: (1) the ALJ failed to develop the record, (Pl. Br. at 13-15); (2) the ALJ erred in his evaluation of the medical opinion evidence, (id. at 15-16); (3) the ALJ's RFC determination is not supported by substantial evidence, (id. at 16-19); and (4) the ALJ relied on erroneous vocation expert testimony, (id. at 20-22). The Commissioner argues that the ALJ's decision should be affirmed because it is supported by substantial evidence, and specifically contends that the ALJ was under no duty to develop the record further. (Comm'r Br. at 18-30).

A. Legal Standards

A claimant is disabled if he or she “is unable ‘to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.'” Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)). The SSA has enacted a five-step sequential analysis to determine if a claimant is eligible for benefits based on a disability:

(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a “residual functional capacity” assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008); 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). The claimant has the general burden of proving that he or she is statutorily disabled “and bears the burden of proving his or her case at steps one through four.” Cichocki, 729 F.3d at 176 (quoting Burgess, 537 F.3d at 128). At step five, the burden then shifts “to the Commissioner to show there is other work that [the claimant] can perform.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 445 (2d Cir. 2012).

When reviewing an appeal from a denial of SSI or disability benefits, the Court's review is “limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); see also 42 U.S.C. § 405(g). Substantial evidence means “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)). Put another way, a conclusion must be buttressed by “more than a mere scintilla” of record evidence. Id. (quoting Consolidated Edison, 305 U.S. at 229). The substantial evidence standard is “very deferential” to the ALJ. Brault, 683 F.3d at 448. The Court does not substitute its judgment for the agency's “or determine de novo whether [the claimant] is disabled.” Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (alteration in original) (quoting Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)).

However, where the proper legal standards have not been applied and “might have affected the disposition of the case, [the] court 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) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). Therefore, “[f]ailure to apply the correct legal standards is grounds for reversal.” Id.

1. Medical Opinion Evidence

On January 18, 2017, the Social Security Administration (“SSA”) considerably revised its definition of “medical opinion” evidence. The updated regulations define a “medical opinion” as “a statement from a medical source about what [the claimant] can still do despite [their] impairment(s) and whether [they] have one or more impairment-related limitations or restrictions” in their “ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling or other physical functions . . . ” 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). Thus, a medical opinion must discuss both a claimant's limitations and “what [the claimant] is still capable of doing” despite those limitations. Michael H. v. Saul, 5:20-CV-417 (MAD), 2021 WL 2358257, at *6 (N.D.N.Y. June 9, 2021). Relatedly, conclusory statements by a claimant's provider concerning issues reserved to the Commissioner - for instance, whether the claimant is disabled under the Act - are “inherently neither valuable nor persuasive” and will not be analyzed by the ALJ. 20 C.F.R. §§ 404.1520b(c), 416.920b(c).

2. No Treating Physician Rule

For claims filed before March 27, 2017, the treating physician rule applies, which states that if “a treating source's medical opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, ” it is given “controlling weight.” Quiles v. Saul, No. 19-CV-11181 (KNF), 2021 WL 848197, at *9 (S.D.N.Y. Mar. 5, 2021) (citing 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2)). Under the new regulations, the treating physician rule does not apply to claims filed on or after March 27, 2017. Id. Rather, for those claims, no special deference is given to the treating physician's opinion. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, “[the Commissioner] will articulate in [his] determination or decision how persuasive [he] find[s] all of the medical opinions.” 20 C.F.R. §§ 404.1520c(b), 416.920c(b).

B. ALJ's Duty to Develop the Record

Plaintiff argues that the ALJ did not meet his duty to develop the record because the ALJ rejected the opinions of Plaintiff's treating physicians, namely Dr. Hearns, Dr. Li, Dr. Barnes and Dr. Daley, on the grounds that they lacked specificity regarding Plaintiff's limitations, but the ALJ had a duty to inquire further about these doctors' limitations. (Pl. Br. at 15⁷). The Commissioner argues that the ALJ was under no duty to develop the record further because he based his decision on a fully developed record, consisting of two consultative examinations, numerous progress notes and narrative reports, and many medical opinions. (Comm'r Br. at 2123).

7 All citations to the parties' briefs refer to the page numbers assigned upon the electronic filing of the documents.

“[I]n light of the ‘essentially non-adversarial nature of a benefits proceeding[, ]'” “[a]n ALJ, unlike a judge at trial, has an affirmative duty to develop the record.” Vega v. Astrue, No. 08 Civ. 1525 (LAP)(GWG), 2010 WL 2365851, at *2 (S.D.N.Y. June 10, 2010) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)). “This duty is present even when a claimant is represented by counsel.” Atkinson v. Barnhart, 87 Fed.Appx. 766, 768 (2d Cir. 2004). “Where there are gaps in the administrative record, remand to the Commissioner for further development of the evidence” is appropriate. Sobolewski v. Apfel, 985 F.Supp. 300, 314 (E.D.N.Y. 1997). “[W]here there are no obvious gaps in the administrative record, and where the ALJ already possesses a ‘complete medical history,' the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (citing Perez v. Chater, 77 F.3d 41, 48 (2d. Cir. 1996)); see also Pellam v. Astrue, 508 Fed.Appx. 87, 90 (2d Cir. 2013). As the Second Circuit in Tankisi explained, where “[t]he medical record . . . is . . . extensive” and contains “sufficient evidence from which an ALJ can assess the petitioner's [RFC], ” remand is not required on the grounds that the ALJ failed to request medical opinions in assessing the RFC. 521 Fed.Appx. 29, 34 (2d Cir. 2013); see also Monroe v. Comm'r of Soc. Sec., 676 Fed.Appx. 5, 8-9 (2d Cir. 2017) (finding that RFC determination was proper even though ALJ rejected treating physician's formal medical assessment because she relied on “years' worth of treatment notes” describing Plaintiff's symptoms and assessing characteristics “relevant to her ability to perform sustained gainful activity”). “Whether the ALJ has satisfied this duty to develop the record is a threshold question.” Smoker v. Saul, No. 19-CV-1539(AT)(JLC), 2020 WL 2212404, at *9 (S.D.N.Y. May 7, 2020). The court must be satisfied that the record is fully developed before determining whether the Commissioner's decision is supported by substantial evidence. See id.

Here, there were no obvious gaps in the record as the ALJ had before him two consultative examinations, two state agency medical consultant opinions and numerous medical records and treatment notes from treating physicians, many of which adequately addressed Plaintiff's abilities and impairment-related limitations. For example, having considered a list of possible restrictions, Dr. Pinckney opined over numerous visits that Plaintiff was only restricted in lifting more than ten pounds, implying that she was able to do the unchecked categories of activities. (R. 318, 339, 344, 348, 357, 513). Dr. Li noted that Plaintiff was restricted to limited lifting, pushing, pulling, carrying heavy objects, and could not climb, reach, handle or do repetitive motion. (R. 504). Dr. Long's extensive consultative examination notes indicate that Plaintiff had moderate limitation in her ability to maneuver the cervical spine, to reach up, out and backwards with bilateral upper extremities, and to maneuver the elbows, wrists and hands to grip, grasp or hold, push or pull, flex and extend the LS spine, the hips, and the knees bilaterally. (R. 486-87). Dr. Long also determined that Plaintiff appears to have mild to moderate limitation in walking long distances and in squatting. (R. 487). After reviewing the records, Dr. Uppal, the state agency medical consultant, also opined in depth about Plaintiff's capabilities and limitations (R. 90-92). Dr. Daley noted that Plaintiff had several restrictions, including limited sitting, standing, walking, climbing, repetitive motion, as well as lifting, pushing and pulling no more than ten pounds. (R. 520). Dr. Kerenyi, the psychiatric consultative examiner, performed a thorough analysis of Plaintiff's cognitive and psychological abilities and limitations, and also conducted a daily functioning analysis. (R. 490-92). Dr. Inman-Dundon, the state agency medical consultant, reviewed Plaintiff's medical records and concluded that Plaintiff had a mild ability to understand, remember or apply information; interact with others; concentrate, persist or maintain pace; and adapt or manage herself. (R. 88).

Moreover, the two cases cited by Plaintiff in support of his arguments about requiring the ALJ to obtain missing information from physicians, Calzada v. Astrue, 753 F.Supp.2d 250, 277 (S.D.N.Y. 2010), and Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir. 1990), are no longer relevant due to changes in the regulations and are in any event distinguishable on multiple grounds. Calzada relied upon the following regulation: “[The Commissioner] will seek additional evidence or clarification from [applicant's] medical source when the report from [applicant's] medical source contains a conflict or ambiguity that must be resolved [or] the report does not contain all the necessary information.” 20 C.F.R. § 404.1512(e)(1) (2006). However, this section was “amended in 2012 to remove former paragraph (e) and the duty it imposed on ALJs to re-contact a disability claimant's treating physician under certain circumstances.” Clarke v. Comm'r of Soc. Sec., No. 19-CV-7213 (BCM), 2021 WL 2481909, at *17 (S.D.N.Y. June 16, 2021) (internal citations omitted) (citing cases). “[U]nder the regulatory scheme applicable to the present case, an adjudicator may elect to recontact a treating source to obtain additional information or clarification, but is not obligated to do so.” Id. (internal citations omitted) (citing 20 C.F.R. § 404.1520b(b)(2)(i)). Both Calzada and Cruz discuss the opinions of a treating physician and were decided based on outdated regulations that established the treating physician rule, which granted special deference to the opinions of treating physicians. The new regulations that eliminate the treating physician rule apply to the instant case, making Plaintiff's cited cases inapposite here. Moreover, these two cases involved pro se plaintiffs, “to whom ALJs owe an especially heightened duty to develop a record, ” Smith v. Colvin, No. 14-CV-5868(ADS), 2016 WL 5395841, at *18 (E.D.N.Y. Sept. 27, 2016), while Plaintiff here was represented by counsel at her hearing.

Thus, given the extensive record before the ALJ, which includes many medical opinions that properly discuss Plaintiff's abilities and limitations, the ALJ was not under a duty to develop the record further and inquire about the treating doctors' descriptions of Plaintiff's limitations.

C. The ALJ's RFC Assessment

The RFC is an “individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, at *2). The RFC determination is reserved to the Commissioner. Monroe, 676 Fed.Appx. at 8. When determining the RFC, the ALJ considers “a claimant's physical abilities, mental abilities, [and] symptomatology, including pain and other limitations that could interfere with work activities on a regular and continuing basis.” Weather v. Astrue, 32 F.Supp.3d 363, 376 (N.D.N.Y. 2012) (citing 20 C.F.R. § 404.1545(a)). Nevertheless, ALJs are not medical professionals. See Heather R. v. Comm'r of Soc. Sec., 1:19-CV-01555(EAW), 2021 WL 671601, at *3 (W.D.N.Y. Feb. 22, 2021). The ALJ must refrain “from ‘playing doctor' in the sense that [he] may not substitute his own judgment for competent medical opinion.” Quinto v. Berryhill, Civil Action No. 3:17-cv-00024 (JCH), 2017 WL 6017931, at *12 (D. Conn. Dec. 1, 2017) (internal citations omitted). Accordingly, where the record shows that the claimant has more than “minor physical impairments, ” Jaeger Feathers v. Berryhill, 1:17-CV-06350 (JJM), 2019 WL 666949, at *4 (W.D.N.Y. Feb. 19, 2019), an ALJ is not qualified “to assess residual functional capacity on the basis of bare medical findings, ” Kinslow v. Colvin, Civil Action No. 5:12-cv-1541 (GLS/ESH), 2014 WL 788793, at *5 (N.D.N.Y. Feb. 24, 2014).

1. Consideration of Plaintiff's Mental Impairments

Plaintiff argues that the ALJ failed to consider Plaintiff's mental impairments, specifically agoraphobia, when determining the RFC. (Pl. Br. at 18). The Commissioner argues that the ALJ properly considered Plaintiff's depressive and anxiety disorder, and that Plaintiff was diagnosed with panic disorder with agoraphobia, which falls under anxiety disorder. (Comm'r Br. at 26). Further, the Commissioner argues that “based on Dr. Kerenyi's opinion, the delayed and sparse psychiatric treatment notes, the absence of any history of hospitalizations or emergency room visits, Plaintiff's non-compliance with medication and the evidence indicating no more than a de minimis effect of Plaintiff's psychiatric impairments on her daily functioning, the ALJ properly found those impairments to be non-severe at step two... and the RFC determination did not need to be further restrict[ed] on their account.” (Id. at 27). In other words, the Commissioner argued that no further explanation of the ALJ's rationale with regard to mental impairments was necessary where the record could explain that rationale. (Id.)

“Even where ‘substantial evidence supports the ALJ's finding that a claimant's mental impairment was nonsevere, it would still be necessary to remand ... for further consideration where the ALJ failed to account for the claimant's mental limitations when determining her RFC.'” Rousey v. Comm'r of Soc. Sec., 285 F.Supp.3d 723, 740-41 (S.D.N.Y. 2018) (citing Parker-Grose v. Astrue, 462 Fed.Appx. 16, 18 (2d Cir. 2012)) (collecting cases); see also 20 C.F.R. § 404.1545(a)(2) (“We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not ‘severe [ ]' ... when we assess your [RFC][.]”). However, “where an ALJ fails to mention non-severe impairments in formulating the RFC, such an error may be considered harmless ‘absent evidence that these impairments contributed to any functional limitations.'” Andino v. Saul, No. 1:18-CV-00379(JJM), 2019 WL 4621878, at *2 (W.D.N.Y. Sept. 24, 2019); Trombley v. Colvin, No. 8:15-CV-00567 (TWD), 2016 WL 5394723, at *17 (N.D.N.Y. Sept. 27, 2016) (“While the ALJ may not have specifically mentioned non-severe impairments by name in his RFC analysis, the record as a whole shows that he did evaluate those impairments and their possible limiting effects and found those limitations to be non-existent or de minimis, thereby rendering any legal error on his part harmless.”).

Here, the ALJ found at step two that Plaintiff's mental impairments, namely depressive and anxiety disorders, were non-severe and her related limitations were mild in all four categories of the “paragraph B” criteria after considering each functional area as well as the psychiatric medical opinions in the record. (R. 20-22). However, the fact that the ALJ analyzed the paragraph B criteria and discussed the weight he assigned to the opinions of Dr. Kerenyi and Dr. T. Inman-Dundon in finding Plaintiff's mental impairments to be non-severe, did not relieve him of the requirement to discuss these mental health impairments in the RFC portion of his decision. Cantos v. Comm'r of Soc. Sec., No. 1:19-CV-04269(GBD)(SDA), 2020 WL 5371341, at *12 (S.D.N.Y. July 31, 2020), report and recommendation adopted, No. 19-CIV-4269(GBD)(SDA), 2020 WL 5369919 (S.D.N.Y. Sept. 8, 2020). Furthermore, the ALJ's boilerplate statement that his RFC “assessment reflects the degree of limitation [he] found in the ‘Paragraph B' mental function analysis” does not cure this flaw. Id.; Calderon v. Comm'r of Soc. Sec., No. 16-CIV-9002(PKC)(RWL), 2018 WL 1466099, at *16 (S.D.N.Y. Mar. 5, 2018), report and recommendation adopted, 2018 WL 1468687 (S.D.N.Y. Mar. 23, 2018) (“The ALJ's opinion only formulaically states that he would consider mental impairments in his RFC section ... but there is nothing in the ALJ's opinion indicating that he carried out that duty.”). Additionally, the ALJ's error was not harmless because the ALJ's own analysis in step two highlights several mental impairments that were not de minimis and did contribute to functional limitations. Namely, the ALJ notes that Plaintiff had a mild limitation in interacting with others, which would include her ability to interact with supervisors, co-workers and the public, as well as mild limitations in concentrating, persisting or maintaining pace and adapting or managing herself. (R. 20-21). Accordingly, I respectfully recommend remanding this matter to the ALJ for further consideration of Plaintiff's mental impairments in the RFC analysis.

2. Consideration of All Impairments in Combination

Plaintiff argues that the ALJ failed to consider Plaintiff's impairments in combination. (Pl. Br. at 19). The Commissioner does not directly address this argument.

“[A]s [the Second Circuit] has long recognized, the combined effect of a claimant's impairments must be considered in determining disability; the SSA must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe.” Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995). “Thus, in assessing a claimant's RFC, the ALJ must consider the effects of her impairments separately and in combination, regardless of severity.” Calderon, 2018 WL 1466099, at *16 (finding that the ALJ listed some of Plaintiff's impairments separately and found them to be non-severe, but “said nothing regarding whether these impairments or other impairments were considered in combination, and there [was] no other indication from the opinion that he did so during the RFC analysis.”); see also Cantos, 2020 WL 5371341, at *12.

As discussed above, the ALJ failed to specifically consider Plaintiff's mental impairments in evaluating the RFC, and as such, necessarily failed to consider the combined effect of her mental and physical impairments. Further, the ALJ listed and discussed Plaintiff's gastroesophageal reflux, hypertension, depression and anxiety disorder separately in his step two analysis, but failed to consider their combined effect with each other or with Plaintiff's back, neck and shoulder impairments. (R. 20). The ALJ's RFC analysis exclusively discusses Plaintiff's obesity and physical impairments, namely her back, neck and shoulder pain, without mentioning their combined effect with Plaintiff's mental impairments or gastroesophageal reflux and hypertension. (R. 22-26). As such, I respectfully recommend remanding this matter to the ALJ for further consideration of the combined effect of Plaintiff's impairments.

3. Vocational Expert Testimony

Plaintiff argues that the hypothetical posed to the VE did not include all of Plaintiff's limitations (Pl. Br. at 20-22). The Commissioner argues that substantial evidence supports the findings upon which the VE hypotheticals were based and thus the ALJ may rely on the VE's testimony. (Comm'r Br. at 28-29).

“When the testimony of a vocational expert is used, the ALJ must present a hypothetical that incorporates all of Plaintiffs impairments... If the ALJ fails to pose hypothetical questions that include all of a claimant's impairments, limitations and restrictions, or is otherwise inadequate, a vocational expert's response cannot constitute substantial evidence to support a conclusion of no disability.” Harkins v. Colvin, No. 15-CIV-5223(NSR)(JCM), 2016 WL 8669981, at *18 (S.D.N.Y. Dec. 8, 2016), report and recommendation adopted, 2017 WL 1239655 (S.D.N.Y. Mar. 31, 2017); see also Banks v. Colvin, No. 10-CIV-6462(KMK)(JCM), 2016 WL 5478467, at *14 (S.D.N.Y. July 8, 2016), report and recommendation adopted, 2016 WL 5468302 (S.D.N.Y. Sept. 27, 2016). Furthermore, “an ALJ's hypothetical should explicitly incorporate any limitations in concentration, persistence, and pace.” McIntyre, 758 F.3d at 152. However, “an ALJ's failure to incorporate non-exertional limitations in a hypothetical.. .is harmless error if (1) ‘medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace,' and the challenged hypothetical is limited ‘to include only unskilled work'; or (2) the hypothetical ‘otherwise implicitly accounted for a claimant's limitations in concentration, persistence, and pace.'” Id.

The ALJ posed two hypotheticals to the VE at the hearing, ultimately relying on the following one in determining that Plaintiff was not disabled: an individual of Plaintiff's age, education and work experience who can perform the full range of sedentary work as defined in the D.O.T., but could never climb any ladders, ropes or scaffolds; is limited in terms of overhead reaching with either arm; and is limited in terms of handling and fingering in the left arm, which he can do frequently but not constantly. (R. 78). In response, the VE stated that such an individual would be able to do Plaintiff's past work as a financial aid counselor. (Id.).

This hypothetical failed to explicitly include Plaintiff's mental impairments, such as the mild limitations that the ALJ found in Plaintiff's ability to concentrate, persist or maintain pace, interact with others, and adapt or manage herself. (R. 20-21; 26-27). Moreover, this failure was not harmless error. An ALJ's failure to incorporate non-exertional limitations in a hypothetical is harmless error if “(1) medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace, and the challenged hypothetical is limited to include only unskilled work; or (2) the hypothetical otherwise implicitly accounted for a claimant's limitations in concentration, persistence, and pace.” McIntyre, 758 F.3d at 152 (internal citations omitted) (holding that the ALJ's error was harmless where the hypothetical was explicitly limited to “simple, routine, low stress tasks”). Here, the ALJ failed to incorporate Plaintiff's mental limitations implicitly by restricting the hypothetical to unskilled work, or implicitly accounting in any other way for her limitations in concentration, persistence and pace. Rather, the ALJ's hypothetical included “the full range of sedentary work” and only involved physical limitations. Nonetheless, the ALJ relied on the VE's hearing testimony in reaching his conclusion that Plaintiff is not disabled - this constituted legal error. As such, the Court respectfully recommends remanding this matter to the ALJ to properly incorporate all of Plaintiff's impairments into the hypothetical to the VE.

Plaintiff also argues that the VE's testimony was not consistent with the D.O.T. Specifically, Plaintiff argues that the ALJ's hypothetical included a limitation on overhead reaching with both arms, and that this is inconsistent with the D.O.T.'s description for a financial aid counselor, which requires occasional reaching without any differentiation between overhead reaching and reaching in any other direction. (Pl. Br. at 22). The Commissioner argues that there is no apparent inconsistency between the ALJ's RFC determination and the D.O.T.'s description because the D.O.T. does not specify that overhead reaching is required, and because VE testimony may in some circumstances supplement D.O.T. definitions. (Comm'r Br. at 29-30).

“An ALJ may rely on a vocational expert's testimony regarding a hypothetical as long as the facts of the hypothetical are based on substantial evidence . . . and accurately reflect the limitations and capabilities of the claimant involved.” Calabrese v. Astrue, 358 Fed.Appx. 274, 276 (2d Cir. 2009) (citations omitted). However, where the VE's testimony conflicts with the D.O.T., “the ALJ must reconcile the two.” See Saunders v. Saul, No. 19-CV-0270L, 2020 WL 4208250, at *2 (W.D.N.Y. July 22, 2020) (citing cases). “[W]henever the Commissioner intends to rely on [a] vocational expert's testimony, she must identify and inquire into all those areas where the expert's testimony seems to ... conflict with the Dictionary.” Lockwood v. Comm'r of Soc. Sec. Admin., 914 F.3d 87, 92 (2d Cir. 2019) (internal citations omitted). “In other words, the Ruling requires the Commissioner to ‘obtain a reasonable explanation' for any ‘apparent' - even if non-obvious-conflict between the Dictionary and a vocational expert's testimony.” Id.

Here, the D.O.T.'s description for a financial aid counselor includes “Reaching: Occasionally - Exists up to 1/3 of the time, ” but does not specify overhead reaching. 169.267018 Financial-aid Counselor, Dictionary of Occupational Titles, 1991 WL 647448. The Second Circuit addressed this exact scenario in Lockwood, holding that “[t]estimony that a claimant with overhead reaching limitations is capable of performing a job that the Dictionary describes as requiring ‘reaching,' ... creates at least an apparent conflict that triggers the Commissioner's duty to elicit an explanation that would justify crediting the testimony.” 914 F.3d at 92. In Lockwood, the Court relied on a 1985 Social Security Program Policy Statement that defined reaching as “extending the hands and arms in any direction, ” as well as on the common usage of these terms, to find that “reaching” includes overhead reaching. Id. Though the financial-aid counselor job at issue here contains no explicit reference to overhead reaching, if the ALJ wished to rely on the VE's testimony, he was obligated to “identify and resolve the apparent conflict between that testimony and the Dictionary, even if there is a chance that, upon inquiry, no actual conflict would have emerged.” Id. at 93. Furthermore, the ALJ's ambiguous question during the hearing as to whether the VE's testimony was consistent with the D.O.T. is not sufficient to resolve this apparent conflict. Id. at 93-94. Because “it is not our role to speculate as to how or whether that conflict might have been resolved had the Commissioner carried out [his] responsibility to probe such matters, ” id., I respectfully recommend remanding this matter to the ALJ to conduct the requisite inquiry.

4. Dr. Long's Opinion Not Included in its Entirety

Plaintiff argues that the ALJ failed to explain how he considered “supportability” and “consistency” when he found Dr. Long's opinion persuasive and yet only included a limitation for overhead reaching, but not reaching out and backwards, in his RFC Assessment. (Pl. Br. at 15-16). The Commissioner responds that there was conflicting evidence in the record with respect to reaching out and backwards, and that the ALJ weighed and reasonably resolved this conflict. (Comm'r Br. at 23-24).

Under the new regulations that removed the treating physician rule for claims filed on or after March 27, 2017, the ALJ must “explain how [h]e considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings in [his] determination or decision.” 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). “Supportability concerns the degree to which the ‘objective medical evidence and supporting explanations presented by a medical source' support the medical opinion; consistency concerns the degree to which the medical opinion is consistent with the other evidence in the record.” Quiles, 2021 WL 848197, at *9 (citing 20 C.F.R. §§ 404.1520c(c)(1), (2), 416.920c(c)(1), (2)).

Here, the ALJ adequately explained that he found Dr. Long's overall opinion persuasive, because it was supported by the examination and the medical evidence and was generally consistent with the opinions of Dr. Uppal, Dr. Pickney and Dr. Daley. (R. 25). Plaintiff is correct that the ALJ did not incorporate Dr. Long's opinion in its entirety; while the ALJ accepted Dr. Long's opinion as persuasive, he did not incorporate her limitation on reaching out and backwards in his RFC. (Id.) However, an ALJ is not required to adopt a medical opinion in its entirety and may determine an RFC that differs from a medical opinion, where these differences are supported by substantial evidence in the record and are not the product of legal error. Davis v. Berryhill, No. 17-CV-6579L, 2018 WL 6694929, at *2 (W.D.N.Y. Dec. 20, 2018); see Pellam, 508 Fed.Appx. at 89-90 (“There is no requirement that the agency accept the opinion of a consultative examiner concerning a claimant's limitations, and substantial evidence supported the ALJ's decision not to adopt many of [the doctor's] conclusions”); see also Torbicki v. Berryhill, No. 17-CV-386(MAT), 2018 WL 3751290, at *5 (W.D.N.Y. Aug. 8, 2018) (“An ALJ has discretion to weigh the opinion of a consultative examiner and attribute the appropriate weight based on his review of the entire record.”). “It is for the SSA, and not this court, to weigh the conflicting evidence in the record.” Schaal, 134 F.3d at 504.

In addition to Dr. Long's opinion, the ALJ found the opinions of Dr. Pinckney, Dr. Daley and Dr. Uppal persuasive (R. 25). Like Dr. Long, Dr. Uppal noted a limitation for reaching in front and/or laterally as well as overhead on the left side. (R. 104). However, Dr. Pinckney and Dr. Daley did not include a limitation of any kind with regard to reaching. Namely, Dr. Pinckney only included a limitation for not lifting more than ten pounds, and left reaching unmarked on his treatment notes each of the five times he saw Plaintiff (R. 340, 344, 348, 358, 513). Dr. Daley included limitations for lifting, pushing, pulling, sitting, standing, walking, climbing and repetitive motion, as well as a weight limit of ten pounds. (R. 520). Since the ALJ considered conflicting opinions in the record on this point, with some doctors finding a limitation for reaching in multiple directions and others not finding any limitation for reaching, the Court will defer to the ALJ's determination on how to weigh this evidence. Further, there was substantial evidence from two other physicians in the record to support the ALJ's decision not to include Dr. Long's opinion in its entirety as to reaching, and thus the court finds that the ALJ was not obligated to explain his decision to ignore part of Dr. Long's opinion.

Plaintiff argues in her Reply Brief that the ALJ's failure to incorporate Dr. Long's limitations in reaching out and backwards was “cherry-picking” medical findings. (Pl. Reply Br. at 2). “Reviewing courts decry administrative cherry-picking of relevant evidence. This term refers to crediting evidence that supports administrative findings while ignoring conflicting evidence from the same source.” Jackson v. Comm'r of Soc. Sec., No. 16-CV-6183 (KAM), 2019 WL 7283518, at *7 (E.D.N.Y. Dec. 27, 2019); see also Smith v. Bowen, 687 F.Supp. 902, 904 (S.D.N.Y. 1988) (“Although the ALJ is not required to reconcile every ambiguity and inconsistency of medical testimony... he cannot pick and choose evidence that supports a particular conclusion.”).

However, here, the ALJ did not credit evidence that supported a finding of no disability while ignoring conflicting evidence, since he credited one of Dr. Long's findings of limitation as to overhead reaching, which supports a disability finding, and did not include two others. (R. 22, 25). This was not a case of selectively incorporating only that part of an opinion that confirmed the ALJ's findings, but rather was a case of reconciling Dr. Long's opinion on reaching with the opinions of several other doctors. As such, the Court does not find that the ALJ's decision on this point constituted cherry-picking, and remand is not required on this ground.

Though the ALJ was not obligated to incorporate every part of Dr. Long's opinion, the ALJ did not refer to or even mention by name several doctors' treatment notes in the record, namely those of Dr. Kim, Dr. Pearl, PT Gumtang, Dr. Virani and LCSW Linares.⁸ Neither party raised this argument in its papers, but the Court recommends that the ALJ consider and address these opinions on remand because the Court finds it difficult to determine from the current decision whether and to what extent the ALJ incorporated these relevant treatment notes into his decision.

8 The ALJ also did not consider or mention by name the treatment notes of Nurse Practitioner Gastanes, but those notes do not present evidence that could support a disability as they discuss Plaintiff's high-functioning and independence. (R. 539).

“Among the ALJ's legal obligations is the duty to adequately explain his reasoning in making the findings on which his ultimate decision rests, and in doing so he must address all pertinent evidence. An ALJ's failure to acknowledge relevant evidence or to explain its implicit rejection is plain error.” Klemens v. Berryhill, 703 Fed.Appx. 35, 36 (2d Cir. 2017) (internal citations omitted); see also Keeton v. Comm'r of Soc. Sec., 583 Fed.Appx. 515, 528 (6th Cir. 2014) (ALJ's failure to consider the opinions of-or even mention by name-two examining physicians was a ground for remand because this violated the requirement that administrative agencies must explain their reasoning.) Here, Dr. Kim saw and treated Plaintiff on at least three occasions, and interpreted her MRI imaging, noted her back and shoulder pain levels, opined on Plaintiff's “significantly decreased range of motion, ” listed several diagnoses, and administered multiple injections - all of which is relevant to Plaintiff's claims of disability. (R. 301-08). Dr. Pearl also noted Plaintiff's complaints of severe pain, which he stated resolved when he administered an injection and was significant for the particular diagnoses he mentioned. (R. 370). PT Gumtang made important observations regarding Plaintiff's inability to work full-time due to her limitations with standing and sitting for long stretches of time, and also remarked that due to this, “the unskilled sedentary occupational base is significantly eroded.” (R. 515-16). “Although physical therapists are not acceptable medical sources, the opinions of physical therapists may constitute substantial evidence where the opinions are well documented and supported by the medical evidence.” Ortiz v. Saul, No. 1:19-CV-00942 (ALC), 2020 WL 1150213, at *7 (S.D.N.Y. Mar. 10, 2020). Dr. Virani described Plaintiff's knee pain as well as Plaintiff's use of a cane, and that she ambulated slowly with a cane and had a slight limp this information is relevant evidence that could support disability, which the ALJ did not mention at all. (R. 570-71). LCSW Linares saw Plaintiff weekly for at least half of a year, and described her panic, anxiety and depression symptoms, noting that Plaintiff was responsive to treatment. (R. 574-631). On remand, I recommend that the ALJ consider and explicitly mention the treatment notes of these practitioners.

5. Evaluation of Plaintiff's Obesity

Plaintiff also argues that though the ALJ determined that Plaintiff suffered from severe obesity, he did not consider the effect of that obesity on Plaintiff's RFC or question her on the way her obesity impacted her ailments. (Pl. Br. at 17). The Commissioner argues that the ALJ specifically considered obesity in arriving at the RFC and found persuasive Dr. Long's opinion, who noted Plaintiff was overweight. (Comm'r Br. at 25).

[O]besity can cause limitation of function, as it may impede a claimant's ability to do sustained work activity on a regular and continuing basis and also exacerbate the effects of other impairments. As such, obesity is a medically determinable impairment and must be considered in evaluating a Plaintiff's R[F]C. This does not mean, however, that an ALJ must always explicitly discuss a claimant's obesity in his or her RFC determination; rather, an ALJ's determination can reflect an appropriate consideration of obesity if it adopts the limitations suggested by physicians who have directly considered the effects of obesity in their opinions.

Wilson v. Colvin, No. 14-CV-5666(DF), 2015 WL 5786451, at *30 (S.D.N.Y. Sept. 29, 2015) (internal citations omitted).

Here, the ALJ noted in his evaluation of the RFC that Plaintiff is obese, noted her height, weight and BMI, and stated that he “considered this in evaluating the claimant's residual functional capacity.” (R. 24). He also stated that “the record does not document any significant problems secondary to obesity that would reduce the claimant's residual functional capacity beyond that already discussed.” (Id.). The ALJ also found Dr. Long's opinion persuasive, who noted that Plaintiff was overweight in her diagnoses. (R. 25; 486). Thus, I respectfully recommend finding that the ALJ adequately considered the effect of Plaintiff's obesity on Plaintiff's RFC.

6. Consideration of Plaintiff's Need for a Cane

Plaintiff argues that the ALJ's limitations do not include that Plaintiff requires a cane, as allegedly discussed by Dr. Long and Dr. Zahra Virani. (Pl. Br. at 18-19). The Commissioner argues that Dr. Virani only noted Plaintiff's use of a cane on the day of Plaintiff's visit, and that other evidence in the record, including Plaintiff's Function Report, Dr. Long's notes, and Plaintiff's hearing testimony makes scant or no reference to the need for a cane. (Comm'r Br. at 25-26).

Dr. Long's December 4, 2018 consultative examination notes state that Plaintiff “used no assistance device, but it appears she may need one, at least a cane, most likely four prong.” (R. 485). Contrary to Plaintiff's contentions, Dr. Virani's July 24, 2019 treatment notes do not say that Plaintiff requires a cane, but rather state that “today [Plaintiff] used a cane” and that Plaintiff “ambulates slowly with a cane”. (R. 570). The other doctors whose opinions the ALJ found persuasive, Dr. Pinckney, Dr. Daley and Dr. Uppal, did not mention that Plaintiff requires a cane. (R. 83-95; 346-48; 512-13; 519-20). Given that, at a minimum, there was conflicting evidence as to whether Plaintiff required a cane, the Court defers to the ALJ's weighing of this evidence. Schaal, 134 F.3d at 504. As such, the ALJ was not required to include Plaintiff's alleged need for a cane in his RFC finding.

III. CONCLUSION

For the foregoing reasons, I conclude and respectfully recommend granting Plaintiff's motion for judgment on the pleadings, denying the Commissioner's cross-motion, and remanding this case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Report and Recommendation.

IV. NOTICE

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report and Recommendation to serve and file written objections. See Fed.R.Civ.P. 6(a) and (d) (rules for computing time). A party may respond to another party's objections within fourteen (14) days after being served with a copy. See Fed.R.Civ.P. 72(b)(2). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Nelson S. Roman at the 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 said Courthouse.

Requests for extensions of time to file objections must be made to the Honorable Nelson S. Roman and not to the undersigned. Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Fed. R.Civ.P. 6(a), 6(b), 6(d), 72(b); Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008).

RESPECTFULLY SUBMITTED: