Opinion
20 Civ. 07320 (KMK)(JCM)
01-25-2022
LISA M. HALL, Plaintiff, v. KILOLO KIJAKAZI,[1] COMMISSIONER OF SOCIAL SECURITY Defendant.
To the Honorable Kenneth M. Karas, United States District Judge:
REPORT AND RECOMMENDATION
JUDITH C. MCCARTHY, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Lisa M. Hall (“Plaintiff”) commenced this action on September 8, 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. 13), accompanied by a memorandum of law (“Pl. Br.”), (Docket No. 14); (2) the Commissioner's cross-motion for judgment on the pleadings, (Docket No. 19), accompanied by a memorandum of law (“Comm'r Br.”), (Docket No. 20); and (3) Plaintiff's reply in further support of Plaintiff's motion for judgment on the pleadings (“Pl. Reply Br.”), (Docket No. 21). For the reasons set forth below, I respectfully recommend granting the Commissioner's cross-motion and denying Plaintiff's motion.
I. BACKGROUND
Plaintiff was born on October 10, 1962. (R. 91, 195). Plaintiff applied for DIB and SSI on September 7, 2016. (R. 91, 195-201). In her applications, Plaintiff alleged a disability onset date of May 17, 2012. (Id.). Plaintiff's application was initially denied on October 18, 2016, (R. 91), after which she requested a hearing on November 29, 2016. (R. 124-25). A hearing was held on April 1, 2019 before Administrative Law Judge (“ALJ”) Theodore W. Grippo. (R. 6180). ALJ Grippo issued a decision on April 26, 2019 denying Plaintiff's claim. (R. 96-110). Plaintiff requested review by the Appeals Council, which denied the request on July 8, 2020, (R. 1-6), making the ALJ's decision ripe for review.
Refers to the certified administrative record of proceedings relating to Plaintiff's application for social security benefits, filed in this action on February 26, 2021. (Docket No. 12). 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. Ranga Krishna, M.D.
Ranga Krishna, M.D. (“Dr. Krishna”) was Plaintiff's treating neurologist in relation to her worker's compensation claim. (R. 258-390, 740-45, 1141-339). At a June 6, 2012 appointment with Dr. Krishna, Plaintiff complained of persistent headaches and dizziness that occurred daily for several minutes a day, as well as anxiety, memory problems, neck pain radiating into her arms with numbness and tingling, left shoulder pain and tenderness, and lower back pain radiating into her thigh. (R. 270). Plaintiff reported that it was difficult for her to lift, bend, walk, and sit for prolonged periods of time, and ranked her general pain at ¶ 7 out of 10. (R. 270). Dr. Krishna noted that Plaintiff had an abnormal range of motion in her lumbosacral spine and diminished light touch and pinprick sensation. (R. 272).
In October 2012, Plaintiff reported that it was difficult for her to rise and walk from a seated position and to ride for prolonged periods of time in a car. (R. 274). In December 2012, Dr. Krishna prescribed Plaintiff Esgic-Plus tablets, Ultram and EC Naprosyn to help alleviate her pain and recommended that she continue physical therapy for her neck and left shoulder. (R. 279). At visits in June, October, and December 2012, and April 2013, Dr. Krishna repeatedly opined that Plaintiff should avoid bending/twisting, climbing stairs/ladders, lifting and operating heavy equipment. (R. 273, 276, 279, 281). He also noted that his findings were consistent with post-traumatic headache, dizziness, underlying cervical and lumbar disc pathology resulting in radiculopathy, mild cervical spondylosis and multi-level disc bulges of the lumbar spine. (R. 272, 276, 279, 281). At the April 2013 visit, he stated that his findings were consistent with internal derangement of the left shoulder and left knee. (R. 281).
On April 9, 2013, Dr. Krishna, along with physical therapist Arnel Ong, completed a functional capacity evaluation for Plaintiff, which indicated a cervical and lumbosacral radiculopathy diagnosis. (R. 264). Dr. Krishna opined that Plaintiff had normal bilateral upper coordination and grip strength and was able to stand for about ten minutes; sit for about sixty minutes; and bend forward and rotate in sitting and standing positions. (R. 265). Dr. Krishna found that Plaintiff was unable to lift more than 5 pounds, crawl, or squat and kneel. (Id.). Plaintiff also had increased lower back pain, trunk instability, and loss of balance when she applied strong efforts, as well as decreased range of motion in her neck. (Id.). Plaintiff ranked her neck pain at ¶ 7 out of 10, and her lower back pain at ¶ 4 out of 10. (Id.). Dr. Krishna also noted that Plaintiff “demonstrated cooperative behavior in that she was willing to work to maximum abilities throughout the testing procedure [e]xcept for some lifting activities that she refused to do because of pain and weakness in neck and lower back.” (Id.). Dr. Krishna concluded that Plaintiff was unable to meet the requirements of sedentary work and thus could only perform less than sedentary work. (R. 266).
The records from Plaintiff's July 1, 2015 appointment with Dr. Krishna indicate that Plaintiff had normal power bulk and tone in all of her muscle groups except for weakness in the left deltoids, left biceps and left quadriceps which showed a strength of 4/5. (R. 261). The range of motion in her left shoulder was restricted with a flexion of 160/180 and abduction of 135/180 degrees, with signs of impingement. (Id.). Plaintiff had a positive straight leg raise test on the left side. (Id.). Dr. Krishna also noted positive point tenderness on the left knee with a flexion of 115/130 degrees and extension of 10 degrees. (Id.). The cervical and lumbosacral spine revealed abnormal flexion, extension and rotation. (Id.). Dr. Krishna indicated that these clinical findings were consistent with post-traumatic headache, dizziness, mild cervical spondylosis and multilevel lumbar disc bulge syndrome resulting in left L4-L5 radiculopathy and internal derangement of the left shoulder and knee, in addition to left orbit and facial contusion. (R. 26162). Dr. Krishna recommended that Plaintiff continue to receive physical therapy for her left shoulder and follow up with him as well as with a chiropractor and orthopedist. (R. 262).
On November 9, 2015, Dr. Krishna administered trigger point injections to the bilateral upper trapezius with lidocaine and ketorolac to help decrease Plaintiff's pain and improve her range of motion. (R. 385).
In both July and November 2015, Dr. Krishna concluded that Plaintiff could occasionally lift, carry, or push/pull up to 5 pounds and was unable to perform prolonged walking, climbing, kneeling, bending, stooping or squatting. (R. 262, 385). He found that Plaintiff could occasionally sit and stand, perform fine manipulation and simple grasping, reach overhead and at/below shoulder level, but that Plaintiff could never drive a vehicle or operate machinery. (Id.).
Dr. Krishna stated that Plaintiff was “capable of sedentary work, exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull, or otherwise move objects, including the human body.” (Id.). Dr. Krishna indicated that Plaintiff could not perform her previous work activities that she was doing at the time of her injury and noted that her prognosis was poor. (Id.).
At numerous visits, Dr. Krishna also concluded that Plaintiff was temporarily partially or totally disabled in the context of her worker's compensation claim. (See, e.g., R. 262, 273, 276, 279, 281, 285, 288).
These conclusions regarding the degree of Plaintiff's disability were reached in connection with Plaintiff's worker's compensation claim, which has a different standard than claims under the Social Security Act. See Brodie v. Comm'r of Soc. Sec., No. 19-CV-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).
2. Diagnostic Imaging
i. MRI of the Cervical Spine
Plaintiff had an MRI of the cervical spine performed on June 7, 2012, which revealed evidence of mild cervical spondylosis and subtle bulges at ¶ 3-C7. (R. 277, 383, 802). Plaintiff had another MRI of the cervical spine on November 17, 2015 at University Diagnostic Medical Imaging, P.C. (“University Diagnostic Medical”) (R. 309, 929). The MRI in 2015 showed that there were “mild multilevel degenerative changes in the cervical spine[, with] the most significant level being C6-C7 where there is a mild diffuse disc bulge with a small broad-based superimposed central disc protrusion which is causing mild compression of the ventral aspect of the thecal sac.” (Id.).
ii. X-ray of the Lumbar Spine
Plaintiff had two X-rays of her lumbar spine. First, on June 8, 2012, Plaintiff received an X-ray of her lumbar spine at Xcalibur Chiropractic. (R. 381). The X-ray revealed findings suggestive of acute ligament derangement, mild degenerative disc disease at ¶ 5/S1, and mild-to-moderate levoscoliosis with apex at ¶ 2. (Id.). Second, on October 11, 2016, Plaintiff had another X-ray of her lumbar spine administered at the IMA Group. (R. 1139). The X-ray revealed scoliosis, specifically moderate dextroscoliosis of the thoracolumbar spine. (Id.).
iii. MRI of the Brain
On July 17, 2012, Plaintiff had an MRI of the brain administered at Innovative Medical Diagnostic Care, P.C. (R. 307). The MRI results were normal, with no acute infarct or bleed, normal visualized orbits and sinuses, and unremarkable diffusion-weighted images. (Id.).
iv. MRI of the Lumbar Spine
An MRI of the lumbar spine on January 15, 2013 revealed disc desiccation at ¶ 3-L4 and L5-S1; a disc bulge with indentation of the ventral margin of the thecal sac at ¶ 3-L4, L4-L5 and L5-S1; mild facet hypertrophy at ¶ 4-L5 and L5-S1; and straightening of the lumbar spine, which could be due to muscle spasm. (R. 301-02, 383). There was no significant spinal stenosis or severe neural foraminal narrowing. (R. 302).
v. MRI of the Left Knee
On April 10, 2013, an MRI was administered on Plaintiff's left knee, revealing evidence of a complex tear of the posterior horn and posterior root of the medial meniscus; degeneration of the anterior cruciate ligament; and abnormal bony edema of the anterolateral femoral condyle. (R. 305, 383).
vi. MRI of the Left Shoulder
An MRI of Plaintiff's left shoulder on April 10, 2013 showed inflammatory changes of the acromioclavicular joint and “an os acromiale impinge on the underlying supraspinatus tendon”; distal rotator cuff tendinopathy; and subacromial bursitis. (R. 303, 383).
Plaintiff had another MRI of the left shoulder on December 28, 2015 at University Diagnostic Medical. (R. 595). The MRI revealed a small osteochondral injury involving the anterior aspect of the humeral head, but was otherwise unremarkable. (Id.).
vii. X-ray of the Cervical Spine
Plaintiff received an X-ray of the cervical spine on July 7, 2015 at New York Spine & Sport. (R. 928). The X-ray revealed mild anterior osteophytosis, calcification within the posterior soft tissues, and degenerative changes. (Id.).
3. Michael Hossack, M.D.
Plaintiff saw Michael Hossack, M.D. (“Dr. Hossack”) at Montefiore's Department of Orthopedic Surgery on April 1, 2013. (R. 566-67). Dr. Hossack found that Plaintiff's right knee had no effusion, was neurovascularly intact distally, and had a good range of motion. (R. 567). She had no pain on the medial side, a negative McMurry test, and minimal discomfort at Gerdy's tubercle. (Id.). Dr. Hossack noted that Plaintiff's pain had improved. (Id.).
On December 17, 2013, Dr. Hossack performed arthroscopic surgery on Plaintiff's left knee, including a partial medial meniscectomy, chondroplasty and microfracture. (R. 1141-44). Dr. Hossack found that there was a complex tear at the posterior horn and body of the medial meniscus with synovitis, chondromalacia and osteoarthritis. (R. 1141).
Plaintiff had a follow-up appointment with Dr. Hossack on November 3, 2014, where she complained of some weakness and swelling at times, “but nothing major.” (R. 576). She had made some progress; she was no longer using a cane, but she had not started physical therapy. (Id.). Plaintiff presented with a normal gait and without any assistive devices for ambulation, and an examination of the left knee showed well-healed incisions without effusion but with some discomfort over the medial and lateral patellofemoral facets and mild joint line tenderness. (R. 577).
Dr. Hossack's assessments on January 30 and March 20, 2015 were largely unchanged, though in January, he noted that Plaintiff had “good motion” in her left knee. (R. 558, 561-62).
In January, May and December 2016, Dr. Hossack determined that Plaintiff “was able to straight leg raise”; her left knee had well-healed incisions, mild effusion, positive crepitus, good range of motion, positive pain patellofemoral facets, and minimal tenderness at the medial joint line; and her left foot and ankle showed mild discomfort but no pain. (R. 1227, 1239, 1262). At the May visit, Plaintiff also complained of right knee pain that had become worse, which Dr. Hossack opined may have been caused by her right knee compensating for the left. (R. 1239). Her right knee showed well-healed incisions, small effusion, crepitus, discomfort with range of motion, and pain with patellofemoral facets with some mild pain medially as well; she also “can straight leg raise.” (Id.). An exam in December showed good range of motion and minimal discomfort in her right knee, as well as improved strength. (R. 1260).
4. Mark Kramer, M.D.
Drs. Oshidar and Krishna referred Plaintiff to Mark Kramer, M.D. (“Dr. Kramer”) of Cohen & Kramer, M.D., P.C. (R. 298). Plaintiff saw Dr. Kramer on April 2, 2013, and a physical examination revealed that Plaintiff had a mildly antalgic gait on the left side, a mildly lower left shoulder, positive impingement and Neer signs of the left shoulder, left knee swelling and positive McMurray sign. (R. 298-99). Her sensation, motion and reflexes were intact; she had a normal shrug, protraction and retraction; and her left knee extended fully and was stable to varus, valgus, anteroposterior and rotational stress. (Id.). Dr. Kramer's impression was that Plaintiff sustained a sprain of her left shoulder and left knee as a direct result of the work-related accident on May 17, 2012. (R. 299). He recommended an MRI of the left shoulder to rule out an occult tear of the rotator cuff and/or labrum, and an MRI of the left knee to rule out a torn meniscus. (Id.). Dr. Kramer opined that at the very least, Plaintiff had traumatic impingement syndrome and advised that she continue with physical therapy for her left knee and shoulder. (Id.).
At Plaintiff's May 9, 2013 appointment with Dr. Kramer, Plaintiff reported continued pain in her left knee. (R. 300). She was able to extend the knee fully but had discomfort when doing so, and she could not flex the left knee as far as the right. (Id.). Dr. Kramer noted that the left knee was stable, but that she had medial joint line tenderness and a positive McMurray test. (Id.). He recommended that she undergo arthroscopic surgery for the tear in her medial meniscus and continue with physical therapy, which she underwent in December 2013. (Id.; R. 268). Plaintiff also stated that she still had pain in her left shoulder with limited elevation, and Dr. Kramer noted positive impingement and a positive Neer test. (R. 300). Dr. Kramer administered Depo-Medrol and lidocaine injections into the left subacromial space. (Id.).
On August 21, 2014, Plaintiff saw Dr. Kramer again, and complained of weakness in her left leg, particularly on uneven surfaces, which required her to ambulate with a cane. (R. 268). She also reported right knee and lower back pain due to her altered gait pattern. (Id.). She stated that she had not had any formalized physical therapy since Dr. Hossack performed the arthroscopic surgery in December 2013. (Id.). A physical exam revealed that she had nonspecific tenderness in her left knee, but the knee was not red or warm, there was no effusion, she could extend it fully, and it was stable. (Id.). Dr. Kramer recommended that the worker's compensation board authorize physical therapy to her left knee, and prescribed Naprosyn 500 mg twice a day. (Id.).
5. Carl Eugene Wilson, M.D.
On April 29, 2013, Plaintiff was examined by Carl Eugene Wilson, M.D. (“Dr. Wilson”), an orthopedic surgeon, regarding occasional headaches as well as pain in her neck, left trapezius muscle, left shoulder, left knee, and mid and lower back. (R. 673-74). She was most bothered by her neck pain. (R. 674). A physical examination revealed that Plaintiff's cervical spine supporting musculature was tight, with particular tenderness in the left trapezius muscle. (Id.). Her flexion was 40 degrees, extension 30 degrees, and right and left bending 20 degrees, with a negative Spurling's test “to the [r]ight and [l]eft.” (R. 674-75). Her “[s]traight leg raise seated [wa]s 90 degrees.” (R. 675). Plaintiff's left shoulder was much more tender in the subacromial area than anteriorly, and the Hawkin's test was positive. (Id.). Plaintiff's left knee was “maximally tender posterior to the MCL and pain is produced in this area with McMurrays in external rotation.” (Id.). Dr. Wilson diagnosed cervical sprain with no significant MRI lesions but “with objective findings on examination”; lumbar sprain without MRI but “with objective findings on examination”; left shoulder strain; and left knee torn medial meniscus. (Id.). He concluded that Plaintiff had a moderate temporary disability; could not lift, push or pull over 20 pounds; could not bend, particularly repetitively; was limited in stair climbing; could not squat or kneel; and could not use her left arm for heavy or overhead work. (Id.).
This conclusion regarding the degree of Plaintiff's disability was reached in connection with Plaintiff's worker's compensation claim, which has a different standard than claims under the Social Security Act. See Brodie v. Comm'r of Soc. Sec., No. 19-CV-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).
6. Alexios Apazidis, M.D.
On July 31 and November 4, 2014, Alexios Apazidis, M.D. (“Dr. Apazidis”) performed independent orthopedic examinations of Plaintiff as part of her worker's compensation claim. (R. 676, 683). Plaintiff complained of pain in her neck, mid and lower back, both shoulders, left elbow, both wrists, both hips and both knees. (R. 678, 686). She ranked her pain at ¶ 7 to 8 out of 10, and described it as burning, sharp, stabbing. (Id.). In July 2014, Plaintiff noted that she could walk 4 to 5 city blocks without experiencing too much pain and could sit for 2 hours at a time. (R. 678). In November 2014, she stated that she could walk one city block without experiencing too much pain and sit for thirty minutes at a time. (R. 686). At both visits, Plaintiff reported difficulty climbing stairs as well as worsening of her pain when she reached overhead, bent down, walked and slept. (R. 678, 686).
Upon examination, Dr. Apazidis did not observe a limp or antalgic gait, and noted that Plaintiff had a normal appearance and posture and used a straight cane for ambulation but was carrying the cane. (R. 679, 686). Plaintiff's cervical spine had no spasms or tenderness to palpation in July 2014, and moderate spasms and moderate paraspinal and trapezii tenderness to palpation in November 2014, with muscle strength in the arms being 5/5 throughout at both visits. (Id.). An examination of Plaintiff's lumbar spine revealed no paraspinal spasms or tenderness, with muscle strength in the legs at 5/5. (R. 679, 686-87). An examination of the left shoulder, hip and knee revealed no tenderness to palpation. (R. 680, 687). At the November visit, Dr. Apazidis indicated that “symptom magnification was noted during the examination. It is difficult to understand the vastly different exam results this time without any new event and the claimant has not returned to work.” (R. 688). He also did not find that any ongoing physical therapy or orthopedic treatment would be reasonable or necessary. (Id.).
7. Carol McLean Long, M.D. - Consultative Examination
Plaintiff had a consultative examination with Carol McLean Long, M.D. (“Dr. Long”), an internal medicine provider at Industrial Medicine Associates, P.C., on October 11, 2016. (R. 1134-39). Plaintiff reported to Dr. Long that she still experienced neck stiffness, headaches, intermittent swelling in the right knee, and weakness, stiffness and swelling in her legs. (R. 1134). She stated that she could walk three blocks, sit for one hour, stand for thirty-five to forty minutes, and walk up about five steps. (Id.). Plaintiff said she could cook seven days a week, clean once a week, do laundry once a week, and shop three days a week. (R. 1135). She could shower by herself daily and dress herself four to five days a week. (Id.).
A physical examination revealed that Plaintiff's gait had a slow hesitancy, that she could walk on her heels and toes with mild difficulty, and that she could squat one fourth to one half of the way down. (Id.). Her stance was normal, she used no assistive devices, she needed no help changing for the exam, and she was able to rise from the chair without difficulty. (R. 1135-36). A cervical spine examination showed flexion of around 30 degrees, extension of around 30 degrees, lateral flexion of around 30 degrees bilaterally, and rotary movement of around 50 degrees bilaterally. (R. 1136). The lumbar spine examination showed flexion/extension of approximately 45 degrees, lateral flexion of approximately 20 to 30 degrees, and rotary movement of approximately 20 and 30 degrees bilaterally. (Id.). Hip flexion/extension was approximately 70 degrees bilaterally, whereas knee flexion/extension was approximately 100 degrees bilaterally. (R. 1136-37). The straight leg raise test was negative in the supine and seated positions, but was slower for the left leg. (R. 1136). Dr. Long noted that Plaintiff was showing signs of left thigh and knee pain, especially around the kneecap. (Id.).
Dr. Long diagnosed a history of injuries to the left side, tears in the left and right knee post-surgery, neck stiffness, and left shoulder/neck pain, chronically. (R. 1137). She determined that Plaintiff's prognosis was fair and found mild to moderate limitations in walking, walking on the heels and toes, squatting, maneuvering the cervical spine, reaching up and out, and backwards with both arms, and flexing and extending the lumbosacral spine, hips and knees bilaterally. (R. 1137-38).
B. Nonmedical Evidence
1. Plaintiff's Testimony
Steven Heeby, Esq. represented Plaintiff at the April 1, 2019 hearing. (R. 63). Plaintiff testified that the last time she worked was on the date of her injury, May 17, 2012, at the New York City Department of Transportation MaxPreps in Queens, New York. (R. 67). At that time, she had been working there for over twelve years making signs for highways, bus stops, street names and pavement markings. (R. 67-68). Plaintiff explained that this job was physically taxing as it involved lifting, hoisting, fabricating and assembling sheet metal, as well as cutting vinyl and reflective graphics to apply to the substrate, and installing the signs on railings or buildings. (R. 68). She was on her feet most of the time and worked mostly indoors, though she occasionally had to complete certain tasks, like application and installation, outdoors. (R. 68-69). The heaviest weight she had to lift and carry on this job was 50 to 60 pounds, with the average weight being approximately 30 pounds. (R. 69). Plaintiff testified that this was the only full-time employment that she had in the fifteen years before she stopped working. (Id.).
On May 17, 2012, Plaintiff was walking down a long corridor at her job when someone kicked open an industrial, steel interior door. (R. 69-70). “[T]he heavy steel door hit [her] entire left side and squeezed [her], struck [her], and dragged [her] back and down to the floor of [her] building.” (Id.). As a result, Plaintiff injured her neck, the left side of her head, and her left shoulder, arm, wrist, hip, thigh and knee. (R. 70). Plaintiff reported that she was still suffering from continuous chronic pain on her left side, including sustained headaches, impingement in her shoulder, a torn meniscus in her left knee, and pain in her neck, left arm, left hip and lower back. (R. 70-71). She testified that she could comfortably be on her feet for ten to fifteen minutes, after which she started sinking or bending into her knees as well as crouching. (R. 71). It was also painful for her to bend. (Id.). Plaintiff could walk about half a block before she started having congestion and wheezing in her lungs, and walking also bothered her knee. (R. 71-72). She stated that she wore a back brace at home on and off to help with her back pain, which was brought on by changing angles, standing and sometimes sitting. (R. 72). She could sit for twenty to thirty minutes before she needed to get up to stretch, and when she sat, she had to extend her legs out in front of her. (Id.). Plaintiff further explained that her neck was stiff, and that she could not fully turn to the left because of her injury. (R. 73). She also reported getting headaches, which she believed were due to her neck pain and shoulder impingement. (Id.). Plaintiff stated that she took Naprosyn, Advil or Motrin for the headaches. (R. 74). Plaintiff's shoulder was also stiff and she could not lift it above the shoulder plane. (Id.). She said she could lift and carry up to 5 pounds. (Id.). For treatment, Plaintiff went to a chiropractor, saw a shoulder doctor, and received head and neck MRIs, as well as trigger point injections. (Id.). Dr. Hossack, her surgeon, recommended post-surgery physical therapy but it was denied by the workman's compensation board. (R. 75). Plaintiff's right knee also ached as it was supporting the left side of her body. (R. 76).
Plaintiff testified that she spent her typical day assisting her mother with medications, taking her own medications, stretching, applying pressure, and sitting in certain positions. (R. 7576). She used special footwear to ambulate and held onto objects in her house for balance. (R. 76). Plaintiff stated that she did not really do any cleaning but tidied up a bit, like cleaning up eggshells or putting dishes in the sink to soak. (Id.).
2. Vocational Expert Testimony
Vocational Expert (“VE”) Sherry Fredette (“Fredette”) testified that Plaintiff's past work consisted of employment as a metal products assembler, which is generally performed at a medium exertional level with a Specific Vocational Preparation (“SVP”) of 5. (R. 77). This job was performed in conjunction with the job of sign arrester 2, which is a heavy job with an SVP of 3. (Id.).
The ALJ posed a hypothetical to VE Fredette, asking her to assume an individual of Plaintiff's age, education and vocational background, with the following limitations: the individual can perform the full range of light work as defined in the Dictionary of Occupational Titles (“D.O.T”), but could never crouch or kneel; could never reach overhead with the left upper extremity; could occasionally climb ramps and stairs and never climb ladders, ropes or scaffolds; and could occasionally stoop. (Id.). VE Fredette testified that such an individual would not be able to perform Plaintiff's past work, but that other unskilled work that such a person could do exists in significant numbers in the national economy. (R. 77-78). VE Fredette identified inspector and hand packager, small parts assembler, and electronics worker, which are all light jobs with an SVP of 2, as examples of such unskilled work. (R. 78).
The ALJ then posed a second hypothetical to VE Fredette, asking her to assume a hypothetical individual who can lift a maximum of 5 pounds; sit for a maximum of thirty minutes at a time; stand for a maximum of fifteen minutes at a time; walk a maximum of half a block; and who is unable to reach overhead with the left arm. (Id.). VE Fredette testified that no work exists in significant numbers in the national economy that such a person could do because these limitations would preclude work. (Id.). VE Fredette also stated that Plaintiff does not have transferable skills to the sedentary level. (R. 79). VE Fredette confirmed that her testimony was consistent with the D.O.T. and the Selected Characteristics of Occupations, and that anything she testified to that was not addressed in those publications, such as reaching overhead with one arm or working at a less than sedentary level, was based on her training, education and experience. (Id.).
C. The ALJ's Decision
ALJ Grippo first determined that Plaintiff last met the insured status requirements of the Social Security Act (“Act”) on March 31, 2017. (R. 99). Thereafter, ALJ Grippo 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. 99-110). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity from the alleged onset date of May 17, 2012 through her date last insured of March 31, 2017. (R. 99). At step two, the ALJ found that Plaintiff had the following severe impairments: (1) obesity, (2) dysfunction of the left shoulder, (3) left knee status post arthroscopic surgery, (4) right knee status post arthroscopic surgery, (5) degenerative disc disease, and (6) headaches and dizziness. (Id.). The ALJ further found that Plaintiff's chronic obstructive pulmonary disease and plantar fasciitis were non-severe impairments. (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 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). (R. 100).
The ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), except that she could never crouch or kneel; could never reach overhead with her left upper extremity; could occasionally climb ramps and stairs; could never climb ladders, ropes or scaffolds; and could occasionally stoop. (R. 101). 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. 102). The ALJ reviewed the opinion evidence in the record, giving “great weight” to Dr. Wilson's opinion, “significant” weight to Dr. Long's opinion, and “little weight” to Dr. Krishna's opinion. (R. 106).
At step four, the ALJ determined that Plaintiff was unable to perform any of her past relevant work, but that there were jobs that existed in significant number in the national economy that the claimant could have performed. (R. 107-10). The ALJ thereafter concluded that Plaintiff was not disabled under the Act. (R. 110).
II. DISCUSSION
Plaintiff argues that the ALJ's decision should be reversed and remanded for further administrative proceedings for two reasons: (1) the ALJ improperly evaluated the medical evidence by failing to follow the treating physician rule, (Pl. Br. at 16-25); and (2) the ALJ failed to properly assess Plaintiff's disabling symptoms, (id. at 25-28). The Commissioner argues that (1) the ALJ's decision should be affirmed because the ALJ reasonably evaluated the medical opinion evidence in the record and the RFC finding is supported by substantial evidence, (Comm'r Br. at 12-17), and (2) the ALJ properly evaluated Plaintiff's subjective complaints, (id. at 18-20).
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.
B. ALJ's Duty to Develop the Record
Initially, the Court must be satisfied that the record is fully developed before determining whether the Commissioner's decision is supported by substantial evidence. See Smoker v. Saul, No. 19-CV-1539(AT)(JLC), 2020 WL 2212404, at *9 (S.D.N.Y. May 7, 2020). For the reasons set forth below, I respectfully recommend finding that the ALJ met his duty to develop the record.
“[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 the 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, 2020 WL 2212404, at *9.
Here, there are no obvious gaps in the record as the ALJ had before him numerous diagnostic imaging reports, a consultative examination and numerous medical records and treatment notes from treating physicians, many of which adequately addressed Plaintiff's abilities and impairment-related limitations. For example, Dr. Krishna, Plaintiff's longstanding treating physician, completed a functional capacity evaluation, (R. 264), and generally opined on Plaintiff's abilities and limitations due to her injuries, (R. 262, 385). He noted that Plaintiff could occasionally lift, carry, or push/pull up to 5 pounds and was unable to perform prolonged walking, climbing, kneeling, bending, stooping, or squatting, and found that Plaintiff could occasionally sit and stand, perform fine manipulation, simple grasping, reach overhead and at/below shoulder level, but that Plaintiff could never drive a vehicle or operate machinery. (R. 262, 385). Dr. Krishna also concluded that Plaintiff was “capable of sedentary work, exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull, or otherwise move objects, including the human body.” (Id.). Dr. Wilson also commented on her abilities and limitations, noting that Plaintiff cannot lift, push or pull over 20 pounds; cannot bend, particularly repetitively; is limited in stair climbing; cannot squat or kneel; and cannot use her left upper extremity for heavy or overhead work. (R. 675). Dr. Long provided her opinions as well in her consultative examination, finding that Plaintiff was mildly to moderately limited in walking, including on the heels and toes; squatting; maneuvering the cervical spine; reaching up and out, and backwards with bilateral upper extremities; and flexing and extending the lumbosacral spine, hips and knees bilaterally. (R. 1137-38). Thus, given the extensive record before the ALJ, which includes many medical opinions that discuss Plaintiff's abilities and limitations, the ALJ was not under a duty to develop the record further.
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). Thus, 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, 3:17-CV-00024(JCH), 2017 WL 6017931, at *12 (D. Conn. Dec. 1, 2017). 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, 5:12-CV-1541(GLS/ESH), 2014 WL 788793, at *5 (N.D.N.Y. Feb. 24, 2014).
1. The Treating Physician Rule
Despite recent changes in the regulations, the treating physician rule applies to claims filed before March 27, 2017. 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)). Plaintiff filed her claim on September 7, 2016, (R. 91, 195-201), so the treating physician rule applies here.
Plaintiff argues that the ALJ improperly evaluated the medical evidence by failing to follow the treating physician rule because he incorrectly accorded little weight to the opinions of Plaintiff's treating physician, Dr. Krishna, and instead relied on the one-time examinations of Drs. Wilson and Long. (Pl. Br. at 16-24). Plaintiff also contends that even if the ALJ did not err by refusing to give the treating physician's opinions controlling weight, he failed to provide adequate reasoning for according them less than great weight. (Id. at 24-25). The Commissioner argues that the ALJ reasonably evaluated the medical opinion evidence in the record and the RFC finding is supported by substantial evidence because Dr. Krishna's limitations were not well-supported and were inconsistent with other evidence in the record. (Comm. Br at 12-17).
In determining whether a claimant is disabled, an ALJ must give the medical opinion of a treating physician “controlling weight if it is well supported by medical findings and not inconsistent with other substantial evidence.” Rosa, 168 F.3d at 78-79. This is because the treating physician is in a better position to provide a detailed picture of a claimant's impairments than consultative physicians who may see the claimant on just one occasion or not at all. See Estela-Rivera v. Colvin, No. 13-CV-5060(PKC), 2015 WL 5008250, at *13 (E.D.N.Y. Aug. 20, 2015) (citing 20 C.F.R. § 404.1527(d)(2)). An ALJ may properly disregard the opinion of a treating physician where the opinion is contradicted by the weight of other record evidence, Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999), or if it is internally inconsistent or otherwise uninformative, Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). See also Micheli v. Astrue, 501 Fed.Appx. 26, 28 (2d Cir. 2012) (summary order) (“A physician's opinions are given less weight when his opinions are internally inconsistent.”).
Where the ALJ affords limited weight to the treating source's opinion and more weight to a non-treating source's opinion, he must provide “good reasons” for doing so. Schaal, 134 F.3d at 505; see also 20 C.F.R. § 404.1527(c)(2). In addition, the ALJ must follow “specific procedures . . . in determining the appropriate weight to assign a treating physician's opinion.” Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019). The ALJ must “‘explicitly consider' the following, nonexclusive ‘Burgess factors': ‘(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.'” Id. at 95-96 (quoting Selian, 708 F.3d at 418) (per curium) (citing Burgess, 537 F.3d at 129). “An ALJ's failure to ‘explicitly' apply the Burgess factors when assigning weight at step two is a procedural error.” Id. at 96. Where an ALJ procedurally errs, “the question becomes whether a searching review of the record . . . assure[s] [the court] . . . that the substance of the [treating physician] rule was not traversed.” Id. (quoting Halloran, 362 F.3d at 32) (internal quotations omitted). Remand is appropriate “when the Commissioner has not provided ‘good reasons' for the weight given to a treating physician[']s opinion.” Halloran, 362 F.3d at 33.
Here, the ALJ gave Dr. Krishna's opinions “little weight” because he noted that the opinions were self-contradictory, inconsistent with other opinions in the record like that of Dr. Wilson, and inconsistent with Plaintiff's decision to opt for conservative treatment. (R. 106). For example, he pointed out that Dr. Krishna's notes contradict each other because in one section, Dr. Krishna opined that Plaintiff can occasionally lift/carry/pull and push up to 5 pounds and could only perform less than sedentary work, (R. 265-66), and in another part, he stated that
Plaintiff can exert up to 10 pounds of force occasionally and can perform sedentary work. (R. 106, 262, 385). Further, the ALJ noted that in Dr. Krishna's functional capacity evaluation form, he stated that Plaintiff “gave maximum, consistent effort” and yet later indicated that Plaintiff refused to do some lifting activities because of pain or weakness in the neck and lower back. (R. 107). The internal inconsistency of Dr. Krishna's opinions supports the ALJ's decision not to accord controlling weight to them. See Micheli, 501 Fed.Appx. at 28-29 (holding that substantial evidence supported the ALJ's decision not to give controlling weight to treating physician's opinions where the opinions were internally inconsistent and inconsistent with other record evidence).
In a footnote, Plaintiff argues that the ALJ did not cite to any specific findings supporting his determination that Plaintiff can perform light work. (Pl. Br. at 19-20, n.9). However, the ALJ gave great weight to Dr. Wilson's opinion, which concluded that Plaintiff could not lift, push or pull over 20 pounds, (R. 675), and significant weight to Dr. Long's opinion, who did not provide any limitations on lifting, pushing or pulling and listed mild to moderate limitations in other areas, (R. 1137-38). According to the Regulations, “[l]ight work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds,” 20 C.F.R. § 404.1567, which is consistent with Dr. Wilson's findings. Further, as the Commissioner points out, the Second Circuit has found mild to moderate limitations to be consistent with light work. See, e.g., White v. Berryhill, 753 Fed.Appx. 80, 82 (2d Cir. 2019) (Moderate limitations in standing, sitting, and performing other activities did not indicate that a reasonable factfinder would have to conclude that Plaintiff lacked the ability to perform light work); see also Gurney v. Colvin, No. 14-CV-688S, 2016 WL 805405, at *3 (W.D.N.Y. Mar. 2, 2016) (“[M]oderate limitations...are frequently found to be consistent with an RFC for a full range of light work.”). As such, substantial evidence in the record supports the ALJ's determination that Plaintiff can perform light work, with the limitations provided in the RFC.
The ALJ also explained that Dr. Krishna's opinion is inconsistent with Dr. Wilson's opinion and other record evidence, and in doing so, addressed the third Burgess factor, the consistency of the opinion with the remaining medical evidence. Plaintiff is correct, however, that the other Burgess factors were not explicitly considered. (Pl. Br. at 24-25). Namely, the ALJ noted that Dr. Krishna is a neurologist, but did not explicitly discuss that he is a specialist in accordance with Burgess factor four. (R. 106). He also did not explicitly evaluate the frequency, length, nature, and extent of the treatment relationship, in line with Burgess factor one, and did not explicitly consider the amount of medical evidence supporting the opinion as Burgess factor two requires. Though these omissions constitute procedural error, a searching review of the record assures the Court that the substance of the treating physician rule was not traversed and the ALJ provided good reasons for the weight he gave to this opinion. See Halloran, 362 F.3d at 32.
The ALJ was aware that Dr. Krishna was a specialist and described the frequency, length, nature, and extent of the treating relationship that Dr. Krishna had with Plaintiff in his analysis. (R. 103-05). Further, the ALJ's statement that Dr. Krishna's opinion was inconsistent with Dr. Wilson's is supported by the record. Namely, while Dr. Krishna stated that Plaintiff could not lift or carry more than 5 pounds, (R. 265), or 10 pounds, (R. 262, 385), Dr. Wilson concluded that Plaintiff could not lift, push or pull over 20 pounds, (R. 675). Notably, Dr. Long provided no limitation for lifting, pushing, pulling or carrying. (R. 1137-38). Moreover, Dr. Krishna's notes themselves indicate that Plaintiff had normal bilateral upper coordination and grip strength, (R. 265), and normal power bulk and tone in all muscle groups, except for weakness in the left shoulder/arm, (R. 261, 275, 278, 284, 287, 292). This finding does not support Dr. Krishna's limitations on Plaintiff's ability to lift and carry. Dr. Hossack and Dr. Long also discuss normal findings for Plaintiff's abilities, including normal gait and stance, good motion in both knees, improved strength, and fair prognosis. (R. 558, 561-62, 577, 1135-38, 1260). Although there is conflicting evidence regarding the extent of Plaintiff's ability to lift and carry, there is enough evidence in the record to support the ALJ's determination to accord Dr. Krishna's opinions “little weight.” See Schaal, 134 F.3d at 504 (“It is for the SSA, and not this court, to weigh the conflicting evidence in the record.”); see also Bezerra v. Commissioner of Social Security, 20-CV-4303(SLC), 2021 WL 4219727, at *10-11 (S.D.N.Y. Sept. 16, 2021) (finding adequate support for the ALJ's decision to accord the treating physicians' opinions “little weight” where those opinions were inconsistent with substantial record evidence, including their own treatment records and the findings of several consultative examiners).
Moreover, despite according Dr. Krishna's opinion little weight, the ALJ did incorporate many of Dr. Krishna's limitations into the RFC. Namely, Dr. Krishna opined that Plaintiff was limited in climbing, kneeling, bending, stooping, squatting, and reaching overhead, (R. 262, 385), and the RFC included no crouching, kneeling, reaching overhead with the left arm, or climbing ladders, ropes, or scaffolds, only occasionally climbing ramps and stairs, and occasionally stooping. (R. 101).
Plaintiff further argues that the ALJ improperly discounted Dr. Krishna's opinions by finding that Dr. Krishna's opinions were “not entirely consistent” with Plaintiff “opting for conservative treatment.” (Pl. Br. at 23-24, R. 106). Plaintiff cites to legal authority that says that a treating physician's opinion cannot be discounted merely because he has recommended a conservative treatment regimen. (Pl. Br. at 23-24). However, here, the ALJ appears to be making a different point - that the severity of the limitations in Dr. Krishna's opinions is not consistent with the Plaintiff's decision to pursue conservative treatment. An ALJ may consider a plaintiff's decision to avoid testing or treatment, refusal to undergo surgery, and discontinuation of physical therapy when evaluating a plaintiff's allegations of disabling pain. See Taylor v. Chater, 94-CV-5197(JSM), 1995 WL 694466, at *6 (S.D.N.Y. Nov. 22, 1995) (holding that the ALJ's findings regarding plaintiff's complaints of pain were supported by substantial evidence). Nevertheless, the Court agrees that the record does not support the ALJ's position that Plaintiff opted for conservative treatment. Plaintiff underwent arthroscopic surgery on her left knee, including left knee partial medial meniscectomy, chondroplasty and microfracture, (R. 1141- 1144), had trigger point injections administered to her bilateral upper trapezius with lidocaine and ketorolac, (R. 385), and went to physical therapy before and eventually after the surgery, (R. 74-75, 261-62, 279, 299-300, 683). See Scognamiglio v. Saul, 432 F.Supp.3d 239, 250 (E.D.N.Y. 2020) (“Plaintiff's injections, physical therapy, and consistent use of prescription opioid pain-management medications rise above the level of ‘conservative' treatment.”). Therefore, the ALJ's decision to allot little weight to Dr. Krishna's opinions because Plaintiff chose conservative treatment is not supported by the record. However, as discussed above, there were other reasons that the ALJ gave to explain his decision to afford little weight to Dr. Krishna's opinions, and those reasons are sufficient and based on substantial evidence in the record.
Plaintiff also argues that the ALJ improperly relied on Dr. Wilson's opinion, which was based on a single examination and should have been given limited weight. (Pl. Br. at 18-19). The Commissioner contends that the ALJ reasonably gave Dr. Wilson's opinion great weight because the doctor is an orthopedic specialist and the opinion was well-supported by the doctor's findings and consistent with other evidence in the record, including Dr. Long's opinion. (Comm. Br. at 14). The ALJ explained in his decision that he assigned great weight to Dr. Wilson's opinion because it was well-supported and consistent with the other evidence in the record, including Dr. Long's opinion, and was based on a detailed independent physical examination. (R. 106). He also noted that Dr. Wilson is an orthopedic specialist. (Id.). While it is generally true that opinions based on a single examination should not be relied upon heavily, see Jackson v. Colvin, 13-CV-5655(AJN)(SN), 2014 WL 4695080, at *20 (S.D.N.Y. Sept. 3, 2014) (collecting cases), it is also “well-settled” that a one-time opinion, like that of a consultative examiner, “may be given great weight[,] may constitute substantial evidence to support a decision[, and] ... may be accorded greater weight than even a treating source's opinion where the ALJ finds it more consistent with the medical evidence,” Oleske v. Berryhill, 18-CV-74(JLS), 2020 WL 1643860, at *4 (W.D.N.Y. Apr. 2, 2020). See also Poole v. Saul, 462 F.Supp.3d 137, 156 (D. Conn. 2020). Here, there are numerous treatment notes in the record from various practitioners that indicate that Plaintiff had good range of motion in her knees, (R. 298300, 558, 561-62, 567, 1227, 1239, 1262); that her pain had improved, (R. 567); that she had a normal gait, (R. 577, 679, 686, 1135-36); that she had minimal tenderness and mild discomfort but no pain in her left foot and medial joint line, (R. 1227, 1239, 1260, 1262); that she had improved strength, (R. 1260); that her sensation, motion and reflexes were intact, (R. 298-99); that the muscle strength in her arms was 5/5, (R. 679, 686); that she had no tenderness to palpation in her lumbar spine, left shoulder, hip or knee; and that her left knee was not red or warm, there was no effusion, she could extend it fully and it was stable, (R. 268, 300). As such, the ALJ's decision to afford Dr. Wilson's opinion great weight is supported by substantial evidence in the record.
Plaintiff also contends that the ALJ improperly used Dr. Long's opinion to discount Dr. Krishna's opinions where the moderate limitations that Dr. Long assessed were not sufficiently specific to constitute a functional capacities assessment. (Pl. Br. at 22-23). However, the ALJ explicitly acknowledged in his decision that Dr. Long's opinion was not specific and gave Dr. Wilson's opinion greater weight for this reason. (R. 106). As discussed above, the opinion of a consultative examiner may be given greater weight than a treating physician's opinion. See Oleske, 2020 WL 1643860, at *4.
Overall, Plaintiff's disagrees with how the ALJ weighed the evidence, “but the deferential standard of review prevents us from reweighing it.” Krull v. Colvin, 669 Fed.Appx. 31, 32 (2d Cir. 2016). Accordingly, I respectfully recommend finding that there is substantial evidence in the record to support the ALJ's RFC determination.
2. Evaluating Plaintiff's Subjective Complaints
Plaintiff argues that the ALJ improperly found Plaintiff not credible based on her inconsistent statements at her hearing and medical appointments, unduly relied on the objective medical findings when evaluating her disabling symptoms, and incorrectly characterized her treatment as conservative. (Pl. Br. at 25-28). The Commissioner contends that the ALJ properly evaluated Plaintiff's subjective complaints by thoroughly considering her statements in conjunction with the record and finding that the totality of the objective medical evidence did not corroborate her alleged symptoms. (Comm'r Br. at 18-20).
“[I]t is the function of the Commissioner to appraise the credibility of witnesses, including the claimant..,[A]n ALJ is not required to accept the claimant's subjective complaints without question; he may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record.” Martes v. Comm'r of Soc. Sec., 344 F.Supp.3d 750, 762-63 (S.D.N.Y. 2018) (internal quotations omitted). The regulations state that the Commissioner will “consider all of the available evidence, including [the claimant's] medical history, the medical signs and laboratory findings, and statements about how [his or her] symptoms affect [him or her].” 20 C.F.R. § 404.1529(a). However, the Commissioner “will not reject [a claimant's] statements about the intensity and persistence of [his or her] pain or other symptoms or about the effect [his or her] symptoms have on [his or her] ability to work solely because the available objective medical evidence does not substantiate [his or her] statements.” 20 C.F.R. § 404.1529(c)(2). Rule 16-3p directs the ALJ to specifically consider: (1) Plaintiff's daily activities; (2) the location, duration, frequency, and intensity of pain or other symptoms; (3) factors that precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, an individual receives or has received for relief of pain or other symptoms; (6) any measures other than treatment an individual uses or has used to relieve pain or other symptoms; and (7) any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms. See Soc. Sec. Ruling 16-3p: Titles II & XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3P (S.S.A. Mar. 16, 2016). “[A]n ALJ is not required to explicitly address each and every statement made in the record that might implicate his evaluation of the claimant's credibility as long as the evidence of record permits the court to glean the rationale of an ALJ's decision.” Morales v. Berryhill, 484 F.Supp.3d 130, 151 (S.D.N.Y. 2020) (internal quotations omitted). “Federal courts must show special deference to an ALJ's credibility determinations because the ALJ had the opportunity to observe plaintiff's demeanor while testifying.” Jimenez v. Colvin, 12-CV-6001(PGG)(FM), 2016 WL 5660322, at *13 (S.D.N.Y. Sept. 30, 2016) (internal quotations omitted).
Here, the ALJ properly pointed to inconsistencies between Plaintiff's testimony at the hearing and what she told the doctors during examinations, as well as inconsistencies with other evidence in the record, and gave specific reasons for not giving deference to Plaintiff's allegations. See Urena v. Comm'r of Soc. Sec., 379 F.Supp.3d 271, 287-88 (S.D.N.Y. 2019), appeal dismissed, No. 19-1753 (2d Cir. Nov. 7, 2019) (concluding that the ALJ properly considered and discounted Plaintiff's testimony regarding her ability to work due to inconsistencies between her allegations and the record). The ALJ noted that Plaintiff testified that she was able to sit for thirty minutes, stand for fifteen minutes, and walk half a block at one time, (R. 71-72), but reported to Dr. Long that she could sit for one hour and stand for thirty-five to forty minutes at one time, and walk three blocks in ten minutes, (R. 1134). (R. 102). Further, the ALJ highlighted that while Plaintiff testified that she did not do any chores or cleaning, (R. 76), she reported to Dr. Long that she cooked seven days per week, cleaned once per week, did laundry once per week, and shopped three days per week, (R. 1135). (R. 102). The ALJ also pointed to Dr. Apazidis's evaluation records, where he noted Plaintiff's “[s]ymptom magnification.” (R. 102, 688). Plaintiff argues that there is no evidence that Plaintiff intended to mislead the ALJ and points to Dr. Krishna's note that during a visit with him, Plaintiff gave maximum, consistent effort. (R. 264; Pl. Br. at 27). However, the ALJ did not claim that Plaintiff's inconsistencies were intentional and he could properly find that Plaintiff's contentions lacked credibility even without a conscious intention to mislead. See Trepanier v. Comm'r Soc. Sec. Admin., 16-CV-01520(VLB), 2017 WL 6631553, at *10 (D. Conn. Sept. 8, 2017), aff'd sub nom. Trepanier, 752 Fed.Appx. 75 (2d Cir. 2018). Further, the fact that on one occasion Plaintiff put in maximum, consistent effort does not negate the numerous inconsistencies properly considered by the ALJ.
The ALJ also described how Plaintiff's allegations were inconsistent with the evidence in the record. Contrary to Plaintiff's assertion that the ALJ over-relied on the objective evidence in his analysis, (Pl. Br. at 27-28), the ALJ considered not only the objective evidence, but also Plaintiff's treatment, the medical opinions, and Plaintiff's own testimony, (R. 102-07). See Martes, 344 F.Supp.3d at 763 (“[I]n addition to the objective medical evidence, the ALJ considered [plaintiff's] course of treatment, ‘the opinions provided,' and his testimony, in addition to ‘the medical evidence and other evidence in the record.'”). Further, the ALJ's analysis conformed to Rule 16-3p. The ALJ noted that Plaintiff's “statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision... [and then] devoted several pages of analysis to provide his reasoning as to [Plaintiff's] actual limitations, which included the ALJ's discussion of the opinions of treating and non-treating sources, as well as [Plaintiff's] activities of daily living and hearing testimony.” Morales, 484 F.Supp.3d at 150 (“Given the detailed analysis performed by the ALJ, we cannot agree that his analysis was ‘conclusory' in any way.”); Hutchings v. Berryhill, 18-CV-1921(PAE)(KHP), 2019 WL 5722478, at *15 (S.D.N.Y. June 28, 2019), report and recommendation adopted, 2019 WL 5722009 (S.D.N.Y. July 16, 2019) (“[I]t is clear to this Court that the ALJ did not ignore Plaintiffs subjective complaints when formulating her opinion, but merely discounted their veracity in light of medical and other evidence in the record.”).
Further, the ALJ properly considered Plaintiff's treatment choices, see 20 C.F.R. § 404.1529(c)(3)(v) (listing treatment as a factor in evaluating a claimant's subjective complaints), although he incorrectly characterized them as “conservative.” This error was harmless because the ALJ supplied sufficient other reasons for not crediting Plaintiff's subjective complaints.
Accordingly, I respectfully recommend finding that the ALJ properly evaluated Plaintiff's subjective statements.
III. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend denying Plaintiff's motion for judgment on the pleadings and granting the Commissioner's cross-motion in its entirety.
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 Kenneth M. Karas 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 Kenneth M. Karas 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: