Opinion
22-cv-4683 (LGS) (JW)
08-18-2023
CHARLES GORDON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
To the Honorable Lorna G. Schofield, United States District Judge:
REPORT & RECOMMENDATION
JENNIFER E. WILLIS, United States Magistrate Judge.
Plaintiff Charles Gordon brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Acting Commissioner of Social Security (the “Commissioner”) denying his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“the Act”). Both parties have moved for judgment on the pleadings pursuant to the Federal Rule of Civil Procedure 12(c). For the reasons stated below, it is recommended that Plaintiff's motion be DENIED, and the Commissioner's motion be GRANTED.
BACKGROUND
A. Procedural History
On June 3, 2020, Plaintiff filed an application for DIB based on disability as of May 1, 2019. See Social Security Administration (“SSA”) Administrative Record (Dkt. No. 10) (hereinafter “R. ”) at 182. The claim was initially denied on August 20, 2019, R. at 94, and denied again upon reconsideration. R. at 101. Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”), which took place on April 5, 2021 before ALJ Vincent Cascio. R. at 34. In a decision dated May 25, 2021, the ALJ denied Plaintiff's claim, finding that Plaintiff was not disabled under the Act. R. at 10. Plaintiff then requested review by the Appeals Council, which denied Plaintiff's appeal on April 15, 2022. R. at 1.
Plaintiff subsequently brought this action, contending (i) the ALJ committed a legal error by making a residual functional capacity (“RFC”) determination in the absence of supporting expert medical opinion; (ii) the ALJ failed to fulfill his affirmative duty to develop the record; and (iii) the ALJ's RFC was unsupported by substantial evidence. Memo. of Law in support of Pl's Motion for Judgment on the Pleadings at 10-12 (Dkt. No. 14) (“Pl. Memo”). Plaintiff seeks remand for approval and a calculation of benefits, or for further administrative proceedings, including a new decision. Pl. Memo. at 13.
B. Personal Background
Mr. Gordon was 35 years old on the alleged disability onset date. R. at 64. Mr. Gordon has a bachelor's degree in stimulation design. R.at 44. Mr. Gordon's past relevant employment includes working as a computer numerical control (“CNC”) operator and an overnight shift leader. R. at 70.
C. Plaintiff's Relevant Medical History
Mr. Gordon sought treatment on numerous occasions and with different providers for continuing symptoms. His medical history is recounted below in chronological order.
a. Initial Orthopedic Associates Treatment
Between August 2019 and August 2020, Mr. Gordon presented to Orthopedic Associates on multiple occasions with complaints of chronic back pain. R. at 281, 304, 312.
From August 19, 2019 to February 19, 2020, Dr. Chaudhry treated Mr. Gordon for complaints of breathing difficulties, back pain and neck pain. R. at 293-305. On August 19, 2019, Dr. Chaudhry noted that Mr. Gordon's chronic lower back pain resulted from accidents he was involved in when he was 18 or 19 years old, based on MRIs done by an orthopedic spine surgeon. R. at 305. Dr. Chaudhry also noted that Mr. Gordon had not taken pain medication for about a year, and did not receive injections due to insurance issues. Id.
An MRI of Mr. Gordon's thoracic spine taken on January 22, 2020 was unremarkable. R. at 284. An MRI of Mr. Gordon's lumbar spine taken on the same date showed mild degenerative changes most prominent at ¶ 5-S1, where there was a small central disc protrusion superimposed on a small circumferential disc bulge contributing to very mild bilateral neural foraminal stenosis with some subtle contact of the bilateral exiting nerve roots, with the right greater than the left. R. at 285-6. The MRI also found a circumferential disc bulge, ligamentum flavum hypertrophy, facet arthropathy contributing to mild spinal canal narrowing at ¶ 3-4, and mild multilevel bilateral facet arthropathy. Id.
On January 30, 2020, Mr. Gordon presented to Orthopedic Associates for followup after undergoing the MRIs. R. at 281. Mr. Gordon reported that he experienced continuing back pain with radicular symptoms and rated his pain 8 out of 10 on the pain scale. Id. The treating physician, Dr. Vishal Rekhala, noted that Mr. Gordon's pain symptoms were likely due to multiple pain generators. R. at 282. Dr. Rekhala further noted that Mr. Gordon failed extensive conservative spinal cord treatment so a spinal cord stimulator was recommended. Id. Dr. Rekhala also observed that Mr. Gordon demonstrated normal muscle strength, reflexes, and sensation. Id. In notes dated February 20, 2020, Dr. Chaudhry acknowledged that Mr. Gordon carried a diagnosis of degenerative disc disease and had previously received a lidocaine shot for a nerve block in September 2019. R. at 324.
b. Dr. Abueg and Cardono Consultative Examination
On July 15, 2020, Dr. R. Abueg, a DDS medical consultant, and J. Cardono, a disability examiner reviewed the evidence of record at the initial determination level. R. at 67-68. Dr. Abueg assessed that Mr. Gordon was able to lift and carry up to 50 pounds occasionally; 25 pounds frequently; sit, stand, and/or walk for up to six hours in an eight-hour day; occasionally climb ladders, ropes, and scaffolds; and occasionally stoop, kneel, and crouch. R. at 68-69. The assessment concluded that Mr. Gordon could perform work up to the “medium” level of exertion. R. at 70.
c. Continuing Orthopedic Associates Treatment
Following the July 15 consultative exam, Mr. Gordon presented again to Orthopedic Associates with continuing complaints of lower back and neck pain on July 28, 2020 and August 17, 2020. R. at 316-319. During the July 28 visit, Dr. Rekhala observed that Mr. Gordon demonstrated normal muscle strength, reflexes, and sensation. R. at 318. During the August 17 visit, Dr. Richard Perkins opined that he did not feel Mr. Gordon was a candidate for spinal surgery. R. at 316.
On August 26, 2020, Mr. Gordon followed up again with Orthopedic Associates with complaints of neck and lower back pain. R. at 312. Mr. Gordon reported that he experienced continuing aching and stabbing pain; shooting, burning numbness; and a tingling sensation in his lower back and extremities. Id. Mr. Gordon said that the pain was worse with physical activity and was helped by activity modification. Id. Mr. Gordon stated that muscle relaxers did not help the pain; however, his prescription was renewed. R. at 312, 314. Mr. Gordon's diagnoses included cervical radiculopathy, an annular tear of lumbar disc, cervical spondylosis, a herniated cervical disc, and neck pain. R. at 313. At the time, Nurse Practitioner (“NP”) Gearhart found that Mr. Gordon exhibited a normal gait and had minimal difficulty rising from a seated position. Id. NP Gearhart also found that Mr. Gordon had full lumbar range of motion, and full muscle strength and normal sensation in his arms and legs. Id.
d. Department of Neurosurgery Opinions
On September 21, 2020, Dr. P. Charles Garell, a neurosurgeon in Westchester Medical Center's Department of Neurosurgery wrote a letter to Dr. Chaudhry. R. at 408-409. Dr. Garrell confirmed that Mr. Gordon's long history of neck and back pain with occasional radicular symptoms to his right leg began following a motor vehicle accident in 2005 and a fall on ice in 2017. R. at 408. Dr. Garell noted that Mr. Gordon treated the pain with medical marijuana and had received two injections in his neck and two in his spine between 2018 and 2019. R. at 408-409. A physical exam at the time showed that Mr. Gordon was slow to move and walked with an antalgic gait, but did not require an assistive device. R. at 409.
In an October 19, 2020 letter to Dr. Chaudhry, Emily Alsdorf, a Family Nurse Practitioner in the Department of Neurosurgery noted that Mr. Gordon reported moderate to severe lower back pain radiating down his leg, which he rated 7 out of 10 on the pain scale. R. at 410-11. Ms. Alsdorf noted that Mr. Gordon was able to walk independently, but did so with moderate rigidity. R. at 411.
In another letter on November 16, 2020, Ms. Alsdorf noted that Mr. Gordon did not want to continue physical therapy because it made his pain worse, so instead he did stretching exercises at home, and “walk[ed] it off” occasionally during the day. R. at 412-13. Ms. Alsdorf noted that Mr. Gordon's pain was not well controlled and she had advised Mr. Gordon that surgery could worsen the pain and may not improve his functional status. R. at 413.
e. Dr. Ravichandra Reddy - November Treatment
On November 19, 2020, Dr. Ravichandra Reddy treated Mr. Gordon for complaints of back and neck pain. R. at 377-393. At the time, Mr. Gordon was diagnosed with lumbar degenerative disc disease and degenerative cervical disc. R. at 378. Dr. Reddy also observed that Mr. Gordon had a wide-based gait with decreased weightbearing on the right leg, and that he exhibited limited ranges of motion with moderate tenderness in his cervical spine. R. at 377.
f. Dr. Angelotti and El-Chafey Consultative Examination
On November 23, 2020, DDS medical consultant Dr. M. Angelotti and disability examiner N. El-Chafey reviewed the evidence of record at the reconsideration level. R. at 77-81. Dr. Angelotti and examiner El-Chafey rendered the same opinion as Dr. Abueg, except that Dr. Angelotti opined that Mr. Gordon could perform unlimited kneeling and only occasionally stoop or crawl. R. at 79.
g. Dr. Ravichandra Reddy - December to March Treatment
Between December 17, 2020 and March 8, 2021, Dr. Reddy continued to treat Mr. Gordon for complaints of back and neck pain. R. at 380-407. On December 17, Dr. Reddy noted a diagnosis of lumbar radiculopathy and observed that Mr. Gordon exhibited limited ranges of motion in his lumbar spine. R. at 380. On December 30, 2020, Dr. Reddy noted that an electrodiagnostic study of Mr. Gordon's lumbar spine performed on December 3, 2020, showed mild right radiculopathy the L5-S1 level. R. at 401; See R. at 396-97.
On March 8, 2021, Dr. Reddy noted that an MRI of Mr. Gordon's cervical spine showed multiple degenerative changes with moderate spinal canal stenosis at the C3-C4 level and moderate to severe degenerative spinal canal stenosis at the C5-C6 level. R. at 394-5.
D. Plaintiff's Non-Medical Evidence
As a part of his DIB claim, Mr. Gordon completed a questionnaire on his daily activities. R. at 235-42. Mr. Gordon stated that he could take care of his personal hygiene and grooming needs. R. at 235-39. Although he had some difficulty standing; Mr. Gordon could also prepare simple meals, house clean, wash his laundry, mow his lawn, travel independently, drive a car, grocery shop in stores, and socialize. Id.
E. The Hearing
On April 5, 2021, Plaintiff appeared and testified at a hearing before ALJ Vincent Cascio. R. at 34. Stephen Sachs testified as a vocational expert (“VE”). Id.
a. Plaintiff's Testimony
Plaintiff testified that at the time of the hearing, Plaintiff was 37 years old, 6'4” tall, and usually weighed 225 pounds. R. at 42. Plaintiff's highest level of education was a bachelor's degree in stimulation design. R. at 44. Plaintiff previously worked as a CNC operator manufacturing theatrical equipment and as a stocker, jobs which required him to lift up to approximately 200 pounds. R. at 45-46.
When asked about his ability to walk, Plaintiff responded that he could walk for five or 10 minutes at most, and had trouble walking to the store. R. at 46-47. He could sit for 15 to 20 minutes at a time, before he experienced muscle spasms that felt like “tingling, like [his back] . . . fall[ing] asleep, [and] more back pain.” R. at 47. Plaintiff could stand for about 15 to 20 minutes, but he could not stand up straight and could not keep weight on his right leg. Id. After standing in this position, Plaintiff stated that his left leg would “start . . . to want to give out too,” so he needed to take a break. Id.
Plaintiff said he could pick up a pencil but could not reach overhead due to sharp pain in his back. R. at 47-48. When climbing up and down stairs, Plaintiff experienced a shocking sensation in his right leg when he stepped up, and when he walked. R. at 48. Plaintiff stated that he needed support to step up, otherwise he felt like he would fall because he did not have balance. Id.
Plaintiff testified that he could take a shower, but it took longer than it used to. Id. Plaintiff needed to use an extended brush to reach his back and leaned against the wall while showering. R. at 50. Plaintiff can clean the house in short breaks and do laundry, however laundry takes hours since Plaintiff has difficulty bending over. R. at 49. Plaintiff can shop in stores, but uses a cart for support and must use something to help him reach objects on lower shelves and straighten up. Id.
Plaintiff takes pain medication, has trouble sleeping, and trouble dressing himself. R. at 50. Plaintiff uses a back brace two to three times per week for 30 minutes at a time. R. at 53. Plaintiff had difficulty turning his neck to the left and right. R. at 53. Despite this, Plaintiff could drive for up to 30 minutes, although he has the most difficulty looking up. R. at 53-54. Plaintiff takes breaks when he drives because his leg starts “going crazy on the gas pedal ....” R. at 55.
Plaintiff describes his back pain as akin to pins and needles, electric, sharp pain “shoot[ing] down . . . in my hip into my ankle.” Id.
b. VE Testimony
The ALJ asked the VE to classify Plaintiff's past work and the VE classified both of Plaintiff's past jobs as “medium” per the Dictionary of Occupational Titles (DOT). R. at 57.
The ALJ then posed his first hypothetical, asking the VE to assume a hypothetical person of Plaintiff's age, education and work history. R. at 57. The ALJ asked the VE to assume this person has the ability to perform a full range of light work with the following additional limitations: the person could occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds; could occasionally balance, stoop, crouch, kneel, or crawl; and must avoid extreme cold, unprotected heights, and hazardous machinery. R. at 57-58. The VE stated that such a person would not be able to perform Plaintiff's previous work. R. at 58.
The ALJ then asked the VE whether there were any other jobs in the national economy that such a person could perform. Id. The VE identified the following available jobs: hand packer, production worker, and production inspector, all at the unskilled light level. Id.
The ALJ asked the VE additional hypothetical questions which were not adopted in the ALJ's RFC assessment. R. at 58-59.
F. The ALJ's Decision
ALJ Vincent Cascio issued his decision on May 25, 2021, denying Plaintiff's claims. R. at 10. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity (“SGA”) since May 1, 2019. R. at 15.
At step two, the ALJ found that Plaintiff suffered from the following severe impairments: lumbar degenerative disc disease, cervical spondylosis, cervical radiculopathy, and obesity. R. at 16. The ALJ also found that Plaintiff had non-severe impairments including hyperlipidemia, celiac disease, and IBS. Id.
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 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. Id.; 20 C.F.R. Ch. III, Pt. 404, Subpt. P, App. 1, Refs & Annos. The ALJ determined that Plaintiff had the RFC to perform a full range of light work; lift and/or carry 20 pounds occasionally and 10 pounds frequently; sit for six hours and stand and/or walk for six hours out of an eight-hour workday. R. at 17. The ALJ determined that Plaintiff can occasionally climb ramps and stairs; can never climb ropes, ladders, and scaffolds; can occasionally balance, stoop, crouch, kneel and crawl; and must avoid extreme cold, unprotected heights, and hazardous machinery. Id.
At step four, the ALJ did not make any findings about Plaintiff's past work. R. at 19. The ALJ did determine that the transferability of an individual's job skills was not material to the RFC determination because the Medical Vocational Rules, when used as a framework, have dictated that a claimant is “not disabled” regardless of whether Plaintiff has transferable job skills or not. Id.
At step five, the ALJ concluded that given Plaintiff's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. R. at 19. Examples of these jobs included hand packer, product worker, and product inspector. R. at 20.
Based on the above, the ALJ concluded that Plaintiff was not disabled as defined in the Act. Id.
LEGAL STANDARD
A. Scope of Judicial Review under 42 U.S.C. § 405(g)
“After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
“In reviewing the final decision of the SSA, this court 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) (per curiam) (citation and internal quotations omitted). “Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam) (citation and internal quotations omitted). Substantial evidence is “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citations omitted). “Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.” Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (internal citations omitted).
B. Standard Governing Evaluation of Disability Claims by the SSA
To qualify for disability benefits, an individual must be unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A) . The SSA's regulations establish a five-step process for determining a disability claim. See 20 C.F.R. § 416.920(a)(4).
“If at any step a finding of disability or nondisability can be made, the SSA will not review the claim further. At the first step, the agency will find nondisability
unless the claimant shows that he is not working at a “substantial gainful activity.” §§ 404.1520(b), 416.920(b). At step two, the [SSA] will find nondisability unless the claimant shows that he has a “severe impairment.” Defined as “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities. §§ 404.1520(c), 416.920(c). At step three, the agency determines whether the impairment that 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. §§ 404.1520(d), 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the [SSA] assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the [SSA] to consider so-called “vocational factors” (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy.”Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003).
“The applicant bears the burden of proof in the first four steps of the sequential inquiry; the Commissioner bears the burden in the last.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). “Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.” Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999).
DISCUSSION
Plaintiff argues that the ALJ's decision should be reversed because it was not supported by substantial evidence. Pl. Memo. at 10. In support, Plaintiff first argues that the ALJ committed a legal error by making an RFC determination in the absence of supporting expert medical opinion, and “engaged in an improper lay evaluation of medical evidence.” Pl. Memo. at 12. Relatedly, Plaintiff's second argument, though not explicit, is that the ALJ did not fulfill his duty to assist Plaintiff in developing the record. Plaintiff argues that because the record does not include a function by function medical opinion on which the ALJ could base his RFC finding, the ALJ should have solicited additional opinions. Pl. Memo. at 13. For these reasons, Plaintiff argues that the ALJ's findings are not supported by substantial evidence, so the case should be remanded for approval and calculation of benefits, or, in the alternative, for further administrative proceedings. Pl. Memo. at 10, 13.
A. Whether the ALJ Committed Legal Error by Making an RFC Determination in the Absence of Supporting Expert Medical Opinion.
Plaintiff argues that the ALJ committed legal error when he made an RFC determination in the absence of supporting expert medical opinion because he substituted his own opinion for the opinion of a physician. Pl. Memo. at 12. In support of this, Plaintiff alleges that the ALJ rejected the consultative DDS opinions and that “there are no medical opinions of record that support the ALJ's RFC finding for Mr. Gordon.” Pl. Memo. at 12.
In response, Defendant makes five arguments. In sum, Defendant argues that the ALJ considers all relevant evidence, but has discretion to resolve any conflicts that he finds. Memo of Law in Support of Comm'r's Cross-Mot. for Judgment on the Pleadings and in Opp. of Pl's. Mot. for Judgment on the Pleadings at 10 (Dkt. No. 16) (“Opp.”). Further, the ALJ's practice of considering both medical and non-medical evidence does not amount to him substituting his own opinion, and in fact, the ALJ is not required to rely directly on a specific medical opinion when making an RFC determination. Opp. at 10-11.
First, Defendant states that “in making an RFC determination, the ALJ must consider all relevant medical and other evidence, including any statements about what the claimant can still do provided by any medical sources . . . [b]ut it is within the ALJ's discretion to resolve genuine conflicts in the evidence, as the ALJ did here.” Opp. at 10. Second, Defendant argues that “[a]n ALJ may accept those portions of a medical opinion that are supported by the record, while rejecting those portions that are not supported by, or even contrary to, the objective evidence of the record.” Opp. at 10. Third, Defendant asserts that “even where the ALJ's determination does not perfectly correspond with any of the opinions of medical sources cited in [his] decision,” the ALJ is entitled to weigh all of the evidence available to make an RFC finding consistent with the record as a whole. Opp. at 10-11. Fourth, Defendant argues that this practice of considering both medical and other relevant evidence to reach an RFC determination does not amount to the ALJ drawing his own conclusions or making a determination based on his own lay opinion. Opp. at 11. Fifth, Defendant asserts that “the Second Circuit has never held that an ALJ must rely directly on a medical source opinion in assessing a claimant's RFC,” and has ruled that “a medical opinion containing the specific restrictions reflected in the ALJ's RFC assessment . . . was not required when ‘the record contains sufficient evidence from which an ALJ can assess the [claimant's RFC].'” Id.
The Court first acknowledges that Plaintiff's recitation of the law is correct. “Because an RFC determination is a medical determination, an ALJ who makes an RFC determination in the absence of supporting medical opinion has improperly substituted his own opinion for that of a physician, and has committed legal error.” Santillo v. Colvin, No. 13-civ-8874, 2015 WL 1809101, at *9 (S.D.N.Y. Apr. 20, 2015) (internal quotations omitted).
However, Plaintiff's argument in the instant action is without merit. The ALJ did not make his RFC determination based on his own opinions, but instead, relied on (i) the medical records from Orthopedic Associates and the Department of Neurosurgery showing that Plaintiff's “treatment was limited to routine follow-up care, medication management, and injections,” that Plaintiff “did not seek emergency care or require hospitalization, . . . was not a candidate for surgery and . . . did not comply with the recommendation to attend physical therapy,” (ii) the medical records from Orthopedic Associates “primar[ily] document[ing] normal musculoskeletal and neurological assessments,” (iii) the medical records from Orthopedic Associates and the Department of Neurosurgery showing that the Plaintiff “did not require an assistive device or exhibit extremity strength deficits,” (iv) the medical records from Orthopedic Associates and Dr. Ravichandra Reddy pertaining to Plaintiff's diagnostic imaging which showed that “nerve root involvement was not identified,” (v) the progress notes from Dr. Ravichandra Reddy showing that an electromyography (EMG) in December 2020 “indicated only mild lumbar radiculopathy,” and (vi) the consultative evaluations of Drs. Abueg and Angelotti stating that Plaintiff “would be able to perform medium physical exertion involving occasional climbing of ladders/ropes/scaffolds, stooping, and crawling.” R. at 18.
Whether the ALJ's decision was supported by substantial evidence from these sources is a secondary issue which this Court will address, but at this stage, it cannot be said that the ALJ committed a legal error by making an RFC determination absent any medical opinions. The fact that the ALJ's RFC determination does not correspond to a specific medical opinion is not of issue. Where, as here, the Plaintiff's “statements concerning the intensity, persistence, and limiting effects of these symptoms is not entirely consistent with the medical evidence and other evidence in the record,” the ALJ may weigh all evidence available, including other evidence of the record outside of medical opinions, in order to make an RFC finding consistent with the record as a whole. R. at 18.
B. Whether the ALJ Fulfilled His Duty to Assist Plaintiff in Developing the Record.
Next, Plaintiff implies that the ALJ failed to properly develop the record. Plaintiff states that “if the record contains a gap or if otherwise incomplete, . . . an ALJ has an affirmative duty to develop the record” by seeking further information from physicians, and “[w]here failure to seek a medical source opinion renders the record incomplete, then an ALJ may be found to have failed to develop the record.” Pl. Memo. at 11-12. To support this, Plaintiff argues that the ALJ admitted that the record does not contain a function by function medical opinion upon which he can base a finding, and is thus incomplete. Pl. Memo. at 13. However, Plaintiff acknowledges that even if the ALJ's duty exists, “failure to develop the record by failing to seek a medical source opinion containing a function-by-function assessment will not always result in remand, as the lack of such an assessment will not always render the record incomplete.” Pl. Memo. at 11.
In response, Defendant argues that the ALJ was not faced with any gaps in the administrative record that gave rise to an affirmative obligation to seek a medical opinion. Opp. at 12. To support this, Defendant states that the Commissioner's regulations afford the ALJ significant discretion to determine when existing record evidence is sufficient where, as here, the medical evidence of record included Plaintiff's treating source records from February 2018 to March 2021, and both DDS consultative evaluations from Drs. Abueg and Angelotti. R. at 15. Defendant argues that although the ALJ discounted some medical opinions of record, his RFC determination was still supported by sufficient evidence for the ALJ to make an informed disability decision. Opp. at 14.
The Court notes that Plaintiff is correct in stating that in light of the non-adversarial nature of a social security disability benefits proceeding, an ALJ presiding over a social security hearing must affirmatively develop the record. Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). Further, the Court cannot rule on whether the ALJ's RFC determination was supported by substantial evidence if the determination was based on an incomplete record. Craig v. Comm'r of Soc. Sec., 218 F.Supp.3d 249, 267 (S.D.N.Y. 2016) (quoting Jackson v. v. Colvin, No. 13-CV-5655 (AJN) (SN), 2014 WL 4695080, at *18 (S.D.N.Y. Sept. 3, 2014)).
However, the Second Circuit has made clear that “where 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 claim for benefits.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999). In contrast, where there are “numerous gaps in the administrative record,” the ALJ should seek additional information regarding the petitioner's medical history. Id. at 79.
The Court agrees with Defendant that the lack of a function by function assessment did not constitute an obvious gap in the administrative record, and the ALJ was not required to request function by function assessments from Plaintiff's treating sources. The ALJ's duty to recontact sources only arises if the ALJ lacks sufficient evidence to evaluate the doctor's findings, not simply when the treating source's opinion is inconsistent with the rest of the record. Morris v. Berryhill, 721 Fed.Appx. 25, 28 (2d Cir. 2018). To this end, the ALJ stated that the medical and other evidence in the record were not entirely consistent with Plaintiff's statements concerning his symptoms. R. at 18. The ALJ was presumably referring to the consultative assessments by DDS examiners Drs. Abueg and Angelotti, which assessed Plaintiff as able to perform medium physical exertion. Id. However, when the ALJ was “not fully persuaded by these opinions,” he considered both medical opinions and other relevant evidence. Id. This included Plaintiff's statements of “ongoing pain despite treatment, as well as the documented objective findings of cervical/lumbar range of motion loss,” to determine that the evidence in the record was “consistent with further exertional restrictions” than the consultative evaluations had found. Id. To arrive at this RFC determination, the ALJ cites Plaintiff's reports of neck and back pain that prevent him from “lifting/carrying more than five pounds, performing postural activities without difficulty, sitting longer than 20 minutes at one time, standing longer than 20 minutes at one time, and walking longer than 10 minutes at one time.” R. at 17.
The ALJ had no duty to seek a function by function assessment in this case. Plaintiff even cites a case in which the ALJ was not required to seek a subsequent medical source statement by a treating physician “where [the] ALJ possessed treatment notes of treating physicians regarding functional limitations and most of the consultative examiner's RFC assessment.” Pl. Memo. at 12; Pellam v. Astrue, 508 Fed.Appx. 87, 90 (2d Cir. 2013). Here, the ALJ possessed the very same: medical records containing treatment notes from numerous occasions on which Plaintiff's treating physicians, including Orthopedic Associates, the Department of Neurosurgery, and Dr. Ravichandra Reddy documenting his capacities for ambulation and range of motion, and the results of reflex and leg raise tests, among others. R. at 18. The ALJ was also in possession of both Disability Determination Explanation reports, signed by Drs. Abueg and Angelotti, and referenced both in his decision. Id.
As such, because the ALJ did not have a duty to seek a function by function assessment, it cannot be said that the ALJ did not fulfill his duty to assist Plaintiff in developing the record.
C. Whether Substantial Evidence Supported the ALJ's RFC Findings.
Plaintiff argues that substantial evidence does not support the ALJ's RFC determination. In support of this contention, Plaintiff asserts that the ALJ failed to properly evaluate the opinion evidence of record in accordance with the prevailing rules and regulations. Pl. Memo. at 10. To advance this argument, Plaintiff relies primarily on the above contention that there were no function by function assessments in the record “other than the ones the ALJ rejected.” Pl. Memo. at 13. Other than Plaintiff's prior contentions outlined by the Court above, Plaintiff does not point to any other explicit reason that the ALJ's findings are unsupported by substantial evidence.
Defendant responds by making three arguments to advance the overall assertion that substantial evidence supports the finding that Plaintiff was not disabled. Opp. at 7, 10-12, 14-15. First, Defendant states that in determining whether the decision was supported by substantial evidence, the Court must defer to the Commissioner's resolution of conflicting evidence. Opp. at 8. To support this, Defendant maintains that the substantial evidence standard is “very deferential,” and that once an ALJ finds facts, a court can only reject those facts “if a reasonable factfinder would have to conclude otherwise.” Id. Second, Defendant also argues that Plaintiff bears the burden of proving that his RFC is more restrictive than found by the ALJ, whereas the Commissioner need only show that substantial evidence supports the ALJ's decision. Opp. at 12. In support of this, Defendant asserts that Plaintiff failed to demonstrate that he required greater restrictions than the ALJ found, and that the ALJ considered the totality of the evidence when he made “a more restrictive finding” than the consultative evaluations. Opp. at 12-13. Third, Defendant submits that when “an ALJ makes an RFC assessment that is more restrictive than the medical opinions of record, it is generally not a basis for remand.” Opp. at 14.
The Court notes that Defendant is correct in stating that the phrase substantial evidence means “such 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. v. NLRB, 305 U.S. 197, 229 (1938)). In determining whether the agency's findings were supported by substantial evidence, this Court is required to “examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Selian, 708 F.3d at 417 (internal quotation marks omitted). The Court also notes Defendant's assertion that Plaintiff's reported activities of daily living support the ALJ's determination that he retained the RFC to perform light work. Opp. at 14. However, the Court is not persuaded by this argument and does not need to discuss it further, because Courts in this Circuit have long recognized that a claimant's ability to perform activities of daily living does not indicate that the claimant does not have a disability. See Mercedes v. Comm'r of Soc. Sec., No. 15-CV-2986 (SJF), 2017 WL 1323789, at *12 (E.D.N.Y. Mar. 28, 2017) (quoting Solsbee v. Astrue, 737 F.Supp.2d 102, 107 (W.D.N.Y. 2010) (“The mere fact that a plaintiff carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise does not in any way detract from [Plaintiff's] credibility as to [his or her] overall disability”).
However, upon reviewing the entire record, the Court concludes that substantial evidence was available to support the ALJ's decision. The Court agrees with Defendant that since the ALJ's analysis is factual or evidentiary in nature, it is subject to the substantial evidence standard of review, which contemplates deference to an ALJ's weighing of conflicting evidence. Biestek, 139 S.Ct. at 1154; McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014); Brault v. Soc. Sec. Admin., Com'r, 683 F.3d 443, 448 (2d Cir. 2012); Richardson v. Perales, 402 U.S. 389, 399 (1971). Here, the DDS consultative opinions are arguably in conflict with Plaintiff's testimony of his own capacities to sit, stand, walk and lift objects over five pounds. R. at 67-69; R. at 78-81; R. at 46-48. However, it is solely the ALJ's responsibility to determine Plaintiff's RFC, including by weighing evidence and resolving conflicts. 20 C.F.R. § 404.1546(c); See also Richardson, 402 U.S. at 399.
Defendant's statement that it is Plaintiff's burden to demonstrate his functional limitations, and it is not the ALJ's burden to disprove them is correct. Poupoure v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). Plaintiff is responsible for providing evidence to show that he is disabled, because as Defendant notes, he is in a better position to share information about his own medical condition. See SSR 86-8, 1986 WL68636; Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). Here, Plaintiff failed to demonstrate that he required a more restrictive RFC than the ALJ determined. Outside of his testimony during the oral hearing, Plaintiff did not present other evidence from which the ALJ could conclude that his RFC should be more restrictive than light work. R. at 46-48. The ALJ was entitled to weigh all of the medical evidence of record holistically, including medical records from Plaintiff's treating physicians that note his ongoing pain and movement restrictions. Trepanier v. Comm'r of Soc. Sec. Admin., 752 Fed.Appx. 75, 79 (2d Cir. 2018). The persistence of these symptoms alone is not equivalent to a disability finding.
The ALJ stated that the “medical evidence of record does not document signs, symptoms, and/or laboratory findings indicating any impairment or combination of impairments severe enough to meet the criteria of any listed impairment.” R. at 16. Specifically, the ALJ evaluated whether Plaintiff's severe impairments matched the criteria of listing 1.15 Disorders of the Skeletal Spine Resulting in Compromise of a Nerve Root(s). Id. However, the record did not contain documentation of any of the necessary criteria, such as: paresthesia, muscle fatigue, muscle weakness with nerve root irritation/compression, sensory changes, decreased reflexes, imaging findings consistent with nerve root compromise, continuous impairment involving a need for a walker, canes, crutches, or a mobility device, or inability to use one or both upper extremity for work-related activities, among others. Id. If such symptoms existed, it was Plaintiff's duty to ensure that they were reflected in the record. Given the absence of many of these symptoms, it is unlikely that Plaintiff would be able to show that he was disabled as defined by listing 1.15.
Further, the ALJ noted that “[s]ignificantly, the record does not contain any non-conclusory opinions, supported by clinical or laboratory evidence, from treating or examining physicians indicating that the claimant is currently disabled.” R. at 18. Given the standard of deference the Court must afford ALJ's analysis, Plaintiff cannot simply ask the Court to re-weigh the minimal evidence in existence in favor of a disability finding.
Plaintiff's failure to demonstrate his limitations does not in turn place a duty upon the ALJ to seek out additional evidence for himself, unless, as discussed in Section B, there are obvious gaps in the record. Waldvogel v. Comm'r of Soc. Sec., 2017 WL 3995590 at *8 (N.D.N.Y. Sept. 11. 2017); Rosa, 168 F.3d at 79 n.5. As Defendant correctly notes, the ALJ's duty to develop the record is not absolute, meaning that “while the ALJ does have a concurrent duty to assist in developing the record, that does not relieve Plaintiff of [his] duty to provide evidence in support of [his] claim.” Waldvogel, 2017 WL 3995590 at *8.
Substantial evidence “is more than a mere scintilla.” Biestek, 139 S.Ct. at 1154. In his opinion, the ALJ outlined the medical evidence he used to reach Plaintiff's RFC determination, including referencing the DDS opinions of Drs. Abueg and Angelotti. R. at 16-19. It cannot be denied that this body of evidence exceeds a mere scintilla. Further, the ALJ concluded that the overall record was “consistent with further exertional restrictions” than those suggested by the DDS examiners, and acknowledged Plaintiff's “ongoing pain despite treatment” and “indications of gait abnormalities and sensation deficits.” R. at 18. These observations by the ALJ clearly indicate that he considered the totality of the evidence available in the record, not just the DDS opinions alone or the portions of the record that show normal or unremarkable physical assessments of Plaintiff.
Because of the deference owed to the ALJ's analysis, the fact that Plaintiff bears the burden of proving his functional limitations and did not do so, and the fact that the ALJ gave a summary of the medical opinions he used to make his determination in his opinion, the Court concludes that the ALJ's findings were based on substantial evidence.
D. Whether the Court Should Remand for Approval and Calculation of Benefits or for Further Administrative Proceedings.
Plaintiff requests a remand for approval and calculation of benefits, or in the alternative, for further administrative proceedings, on the basis that the ALJ's decision is unsupported by substantial evidence. Pl. Memo. at 13. Defendant argues that substantial evidence supports the ALJ's decision, and that the decision is free from legal error. Opp. at 16.
The Court notes that remand for approval and calculation of benefits is “appropriate when the record provides persuasive evidence of total disability that renders any further proceedings pointless.” Stacey v. Comm'r of Soc. Sec. Admin., 799 Fed.Appx. 7, 11 (2d Cir. 2020) (internal quotations omitted). Here, the record does not contain such persuasive proof of disability after the alleged onset date that remand would serve no purpose.
Remand for administrative proceedings is appropriate where “there are gaps in the administrative record or the ALJ has applied an improper legal standard.” Rosa, 168 F.3d at 82-83. Here, as noted above, the ALJ did not commit legal error and based his opinion on substantial evidence. Therefore, remand for further proceedings is not warranted.
RECCOMMENDATION
For the foregoing reasons, this Court recommends Plaintiff's Motion (Dkt. No. 14) be DENIED, and the Commissioner's Motion (Dkt. No. 16) be GRANTED.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections shall be filed with the Clerk of Court and on ECF. Any requests for an extension of time for filing objections must be directed to Judge Schofield. Failure to file objections within fourteen days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).
SO ORDERED.