Opinion
No. 5:15-CV-35 (LEK/CFH)
03-15-2016
ARKISHA K. HARRISON, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security Administration, Defendant.
APPEARANCES: Arkisha K. Harrison 306 Parrish Lane Syracuse, New York 13205 Plaintiff Pro Se Social Security Administration Office of Regional General Counsel, Region II 26 Federal Plaza - Room 3904 New York, New York 10278 Attorneys for Defendant OF COUNSEL: DAVID L. BROWN, ESQ.
APPEARANCES:
Arkisha K. Harrison
306 Parrish Lane
Syracuse, New York 13205
Plaintiff Pro Se Social Security Administration
Office of Regional General Counsel,
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
Attorneys for Defendant
OF COUNSEL:
DAVID L. BROWN, ESQ.
CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION AND ORDER
Plaintiff Arkisha K. Harrison ("plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security ("Commissioner" or "defendant") denying her applications for supplemental security income benefits ("SSI") and Disability Insurance Benefits ("DIB"). Plaintiff has not filed a brief in this matter, but was given opportunities to do so. Dkt. Nos. 14-15. The Commissioner has filed a brief pursuant to General Order 18, and seeks a judgment on the pleadings. Dkt. No. 16. For the following reasons, it is recommended that the matter be remanded.
I. Background
On September 13, 2011, plaintiff protectively filed for SSI and SSDI benefits, alleging a disability onset date of March 11, 2011. T at 117-129. Those applications were denied on December 9, 2011. Id. at 23-28. Plaintiff timely filed a request for a hearing, and a hearing was held on June 10, 2013 before Administrative Law Judge ("ALJ") Stanley K. Chin. T at 52-53; 6-22. Plaintiff's claim for benefits was denied by the ALJ on June 28, 2013. Id. at 29-38. Plaintiff's timely-filed request for review was denied, making the ALJ's findings the final determination of the Commissioner. Id. at 1-3. This action followed. Dkt. No. 1. ("Compl.").
Plaintiff was represented by counsel at this hearing. T at 51.
A. Facts
This "facts" section is a recitation of plaintiff's testimony at the hearing and does not amount to findings of facts by this Court.
Plaintiff, born on April 13, 1977, was thirty-three years old on the alleged disability onset date. T at 36. She is a high school graduate. Id. at 18. Plaintiff lived with her two children, aged seven and fourteen at the time of the hearing, and her fiancé. Id. at 12. Plaintiff's fiancé works two jobs. Id. Plaintiff does cooking and cleaning, and her fiancé helps her. Id. Plaintiff bathes and dresses herself, and can leave her home to go to the store. Id. at 12-13. Plaintiff's friends visit her at her home. Id. Plaintiff's typical day involves dropping her son off at school and "do[ing] a little chores around the house" such has making her bed, "[t]ry to clean the tub, a little dishes." Id. at 13. Plaintiff enjoys scrapbooking. Id.
Plaintiff provided that she is unable to work due to neck and back pain. T at 13. Plaintiff has undergone nerve block injections but they have not helped. Id. at 14. Plaintiff has not undergone any other treatments. Id. Plaintiff takes Flexeril for pain which causes "a little drowsiness." Id. Plaintiff does not take pain medication because her "body can't tolerate it[,]" she "get[s] nauseous, and [she] vomit[s]." Id. Plaintiff contends that her doctors "wanted to put a [spinal cord] stimulator in [her]." Id. at 15. Plaintiff "was debating on it because [she is] a little nervous about something planted inside [her], so [she] do[esn]'t think [she] want[s] to do that." Id. Plaintiff experiences "numbness and tingling down [her] hands and feet." Id. Plaintiff reported she cannot stand for more than ten to fifteen minutes at one time. Id. She opined that she could walk less than one half of a mile before she "get[s] real bad, sharp pain down [her] back." Id. at 16. She can sit for a "few minutes" before her back and neck get stiff and then she needs to get up and move around. Id. Plaintiff is most comfortable "[l]aying down with [her] feet up," which she does "[m]ainly throughout the day." Id.
Plaintiff's neck pain causes her to get headaches, specifically when she is reading or using her laptop. T at 17. Plaintiff gets headaches four times per week, which last "[t]hroughout the day" and are "[r]eal intense, like a 10." Id. Plaintiff takes Motrin for her headaches and puts a "cold pack" on her head and on the back of her neck. Id. Plaintiff stated that she can lift five pounds occasionally. Id. If she tries to lift more than five pounds, her "back usually gives out on [her] . . . . [She] get[s] real bad, sharp pain down [her] neck all the way down to [her] lower back." Id. Plaintiff's past work was in health care, helping patients with cleaning, shopping, bathing, dressing, and eating. Id. at 18. The job involved a lot of lifting. Id.
The ALJ presented a hypothetical to the vocational expert ("VE"): an individual of the same age, education, and work experience as plaintiff, limited to lifting twenty pounds occasionally, ten pounds frequently; standing/walking for six hours, sitting up to eight hours, with normal breaks; occasional climbing of ladders, ropes, scaffolds; frequent use of ramps and stairs; frequent balancing, stooping, kneeling, crouching, and crawling; avoidance of concentrated exposure to environmental irritants; avoidance of concentrated use of moving machinery and exposure to unprotected heights; limited to simple, routine, repetitive tasks. T at 20. The VE testified that someone with such an RFC could not perform plaintiff's past work as a nurse assistant or home health aide. Id. The VE testified further that such person could perform the role of mail clerk, sorter, or marker, and that such jobs existed in significant numbers in the national economy. Id. at 21. In a second hypothetical, the ALJ added to the first hypothetical the additional limitation of being off task twenty percent of the time. Id. The VE testified that there would be no jobs for someone with that RFC. Id.
II. Discussion
In accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curium), the Court has attached hereto all unpublished cases cited to within this Report-Recommendation and Order.
A. Standard of Review
In reviewing a final decision of the Commissioner, a district court may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if the correct legal standards were not applied, or it was not supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Substantial evidence is "more than a mere scintilla," meaning that in the record one can find "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations omitted)). If supported by substantial evidence, the Commissioner's finding must be sustained, "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citation omitted).
"In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision." Barringer v. Comm'r of Soc. Sec., 358 F. Supp. 2d 67, 72 (N.D.N.Y. 2005) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). However, a court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. See Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). If the Commissioner's finding is supported by substantial evidence, it is conclusive. 42 U.S.C. § 405(g), as amended; Halloran, 362 F.3d at 31.
B. Determination of Disability
Although the SSI program has special economic eligibility requirements, the requirements for establishing disability under Title XVI, 42 U.S.C. § 1382c(a)(3)(SSI) and Title II, 42 U.S.C. § 423(d) (Social Security Disability Insurance ("SSDI")), are identical, so that "decisions under these sections are cited interchangeably." Donato v. Sec 'y of Health and Human Services, 721 F.2d 414, 418 n.3 (2d Cir. 1983) (citation omitted).
"Every individual who is under a disability shall be entitled to a disability . . . benefit . . . ." 42 U.S.C. § 423(a)(1) (2004). Disability is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." Id. § 423(d)(1)(A). A medically-determinable impairment is an affliction that is so severe that it renders an individual unable to continue with his or her previous work or any other employment that may be available to him or her based upon age, education, and work experience. Id. § 423(d)(2)(A). Such an impairment must be supported by "medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3). Additionally, the severity of the impairment is "based [upon] objective medical facts, diagnoses or medical opinions inferable from [the] facts, subjective complaints of pain or disability, and educational background, age, and work experience." Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)).
The Second Circuit employs a five-step analysis, based on 20 C.F.R. § 404.1520, to determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity.Berry, 675 F.2d at 467 (spacing added). The plaintiff bears the initial burden of proof to establish each of the first four steps. DeChirico v. Callahan,134 F.3d 1177, 1179-80 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth step, the burden shifts to the Commissioner to prove that the plaintiff is still able to engage in gainful employment somewhere. Id. at 1180 (citing Berry, 675 F.2d at 467).
If he [or she] is not, the [Commissioner] next considers whether the claimant has a 'severe impairment' which significantly limits his [or her] physical or mental ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him [or her] disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a 'listed' impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he [or she] has the residual functional capacity to perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her] past work, the [Commissioner] then determines whether there is other work which the claimant could perform.
C. Failure to File a Brief
Plaintiff did not file a brief, despite being given more than one opportunity to do so. Dkt. No. 12, 14. Plaintiff submitted a form complaint with an attached letter. See Compl. The letter does not set forth specific claimed errors in the ALJ's decision, and instead reiterates the treatment she has received, the pain she has experienced, and her belief that she is entitled to benefits. Id. at 2-5. It is well settled that a plaintiff bears the burden of establishing disability. See Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999); Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). General Order 18 of the Northern District of New York provides, however, that the Court
will 'consider' the case notwithstanding a plaintiff's failure to file a brief, albeit in a way that might be 'heavily influenced by the Commissioner's version of the facts.' In a case such as this, where the plaintiff is proceeding pro se, General Order No. 18's promise of a consideration of the merits complies with the special solicitude that the Second Circuit mandates for pro se litigants.Gregorka v. Commissioner of Soc. Sec., 13-CV-1408 (GTS/TWD), 2015 WL 3915959, at *4 (N.D.N.Y. June 25, 2015) (quoting G.O. 18); Hubbard v. Commissioner of Soc. Sec., 14-CV-1401 (GTS/WBC), 2016 WL 551783, at *4 (N.D.N.Y. Jan. 14, 2016) (same). Thus, despite plaintiff's failure to provide a brief, this Court must examine the record to consider whether the ALJ applied the proper standards, reaching a decision that is based on substantial evidence. Id.
D. ALJ Determination
Using the five-step disability sequential evaluation, the ALJ found that plaintiff had not engaged in substantial gainful activity since March 11, 2011, the alleged onset date. T at 31. The ALJ determined at step two that plaintiff had the following severe impairments: lumbar spine disc bulge, asthma, and panic disorder without agoraphobia. Id. The ALJ acknowledged that a thyroid nodule was noted in a cervical MRI, which turned out to be a colloid cyst, but that followup testing showed normal results. Id. As there were no functional limitations caused by the cyst, the ALJ concluded that the colloid cyst was not a severe impairment. Id. At step three, the ALJ concluded that plaintiff did not have an impairment, alone or in combination, sufficient to meet the listed impairments in Appendix 1, Subpart P of Social Security Regulation Part 404p, Appx. 1. Id. at 31-32. Before reaching step four, the ALJ concluded that plaintiff has the residual functional capacity ("RFC"):
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that the claimant can lift up to 20 pounds occasionally; lift up to 10 pounds frequently; and stand/walk about 6 hours and sit up to 6 hours in an 8-hour day, with normal breaks. The claimant could occasionally climb ladders, ropes, or scaffolds; frequently climb ramps or stairs; and frequently balance, stoop, kneel, crouch, and crawl. The claimant also needs to avoid concentrated exposure to environmental irritants such as fumes, odors, dusts, gases, and poorly ventilated areas. The claimant needs to avoid concentrated use of moving machinery and exposure to unprotected heights. Work is also limited to simple, routine, and repetitive tasks.Id. at 32-33. At step four, the ALJ determined that plaintiff was unable to perform any past relevant work. Id. at 36. The ALJ concluded that, "[c]onsidering plaintiff's age, education, work experience, and residual functional capacity, there are other jobs that exist in significant numbers in the national economy that the claimant can perform[.]" Id. at 37. The ALJ provided, based on the VE's testimony, that plaintiff could perform the jobs of mail clerk, sorter, and marker. Id. Thus, the ALJ concluded that plaintiff "has not been under a disability, as defined in the Social Security Act from March 11, 2011, through the date of this decision (20 C.F.R. 404.1520(g) and 416.920(g))." Id. at 38.
B. Medical Evidence
a. James Walzer, D.C.
i. Treatment notes
Dr. Walzer, plaintiff's treating chiropractor, diagnosed plaintiff with cervical, thoracic, and lumbar complex subluxation and sprain/strain. T at 218. At an initial consultation on March 15, 2011, plaintiff had decreased range of motion of the lumbar and cervical spine, and bilateral spasm and tenderness of the paracervical muscles, trapezius muscles, paradorsal muscles, and paralumbar muscles. Id. at 258. At a March 17 visit, plaintiff reported "improvement in areas of activities of daily living." Id. at 166. Dr. Walzer noted that plaintiff's condition "appears to be guarded." Id. At a March 30 visit, Dr. Walzer observed that plaintiff's symptoms of stiffness and soreness of upper back, mid back, neck, left and right upper extremities, shoulders, hands, lower extremities, and legs were "slowly improving with treatment." Id. at 263.
Dr. Walzer ordered an electrodiagnostic study which revealed "no evidence of lumbar radiculopathy." T at 221. Dr. K. Walzer "note[d] that conventional Emg and nerve conduction studies cannot test small sensory fibers which, when relatively irritated, may underlie pain and paresthesias arising from within 'named' peripheral nerves, soft tissues and bony structures, and sensory roots." Id.
ii. Spinal MRI
Dr. Walzer ordered an MRI obtained of plaintiff's cervical spine. The MRI, taken on April 7, 2011, showed "[n]o fracture, spondylosisthesis, marrow replacement process, intrathecal mass, disc herniation, cord compression, or abnormal signal in the spinal cord." T at 224. The paraspinal soft tissues were within normal limits. Id. Anterior spondylosis was noted atT1-2 and T2-3." Id. The impression, as relevant here, was "no disc herniation" and "anterior spondylosis . . . at T1-2 and T2-3." Id. Dr. Walzer also ordered an MRI of the Lumbar spine. An MRI of the lumbar spine taken on April 7, 2011 showed no fracture, spondylolisthesis, narrow replacement process, interathecal mass, no spinal canal or foraminal stenosis, no retroperitoneal mass, lymphadenopthay, or aneurism. Id. at 225. The discs at L1-2, L2-3, L3-4, L5-S1 "levels appear within normal limits." Id. At the L4-L5 level, "a central disc bulge is noted." Id. The ALJ reviewed these findings. Id. at 34.
b. New York Spine & Wellness Center
During plaintiff's visits to the New York Spine and Wellness Center, plaintiff treated largely with Jennifer Godlewski, PA or Robert Richman, PA. On January 16, 2012 plaintiff reported pain at a level of eight out of ten. T at 399. Plaintiff's range of motion in her head/neck was "limited with rotation to the right at about 60 degrees and to the left at about 60 degrees. She has more pain when turning her head to the right. She also has pain with attempts at flexion and extension." Id. There was no swelling in plaintiff's upper or lower extremities. Id. Plaintiff's gait was "slightly antalgic" with "[s]tiff, guarded posture." Id. Plaintiff could get out of her chair without assistance. Id. Her lumbar region was "quite limited with flexion at about 30 degrees with low back pain." Id. An EMG and Nerve Conduction study were performed on May 5, 2012 by Rina Davis, M.D. Id. at 396. The impression was that it was "a normal study" and there was "no evidence of a cervical radiculopathy, peripheral neuropathy, or peripheral nerve entraptment." Id. at 398. Plaintiff received a trigger point injection on June 25. Id. at 394. At a July 16, visit, plaintiff indicated a minimum pain level of eight out of ten and a maximum pain level of ten out of ten. Id. at 390. Plaintiff's low back pain worsened with lifting, standing, walking, driving, and bending. Id. Plaintiff reported nausea caused by her neck pain. Id. at 391. Her gait was reported to be normal. Id. Ms. Godlewski referred plaintiff for an orthopedic surgery consult. Id. at 392. On August 29, plaintiff received trigger point injections. Id. at 388-89. PA Richman noted that plaintiff reported an increase in migraines after her last injection. Id. at 388.
Several of Ms. Godlewski's treatment notes indicate that Dr. Jason Lok or Dr. Joseph Cantania saw plaintiff and agreed with Ms. Godlewski's treatment plan for plaintiff. T at 379-80, 383-84, 401. However, some visits indicate that plaintiff was seen only by Ms. Godlewski or Robert Richman, PA, and without an accompanying signature from a medical doctor. See 389, 392, 394, 397, 406.
On September 13, 2012, plaintiff complained her pain was a ten out of ten. T at 385. She complained of low back, neck, arm, and leg pain. Id. at 385. Ms. Godlewski noted plaintiff's gait to be antalgic. Id. at 386. On November 11, plaintiff's pain was seven out of ten and she felt burning, numbness, aching, stabbing, and a constant pain. Id. at 381. She complained of pain in her low back, neck, both arms, and both feet. Id. Plaintiff reported anxiety and sleep disturbances. Id. at 382. At a November 14, visit, Ms. Godlewski noted that she was "unsure at this time the source of [plaintiff's] continued pain." Id. at 384. Plaintiff's pain was an eight out of ten on that visit. Id. On Plaintiff received a bilateral lumbar transforaminal nerve block. Id. at 407. Plaintiff had "50% pain relief" which lasted for two days, with a gradual return of pain. Id. On December 20, Ms. Godlewski concluded that plaintiff's "functional status is limited in the following areas: ability to work, ability to perform activities of daily living, aerobic activity, enjoyment of life, ability to perform housework, mood, sleep disturbance and social relationships." T at 378. Plaintiff reported pain at a level of nine out of ten on that visit. Id. at 377. She experienced difficulty sleeping and walking, with muscle pain and spasms, but no extremity weakness or fecal/urinary incontinence. Id. Plaintiff reported her anxiety and depression to be stable. Id. at 378. Her gait was antalgic. Id. at 379.
c. Warren E. Wulff, M.D.
The ALJ referred to this provider as Warren Wulfi, M.D.; however, review of the record reveals that the proper spelling is Wulff.
Dr. Wulff examined plaintiff, following a referral, on October 3, 2012. T at 373. Plaintiff complained of neck pain radiating down to her lower back with pain, numbness[.]" Id. Plaintiff's gait was normal, she could balance on heels and toes, and climb onto the examination table. Id. at 374. Plaintiff's cervical range of movement was "mildly limited secondary to pain," and her "[l]umbar flexibility is moderately limited secondary to pain." Id. at 374. Dr. Wulff indicated that plaintiff had "full unobstructed painless range of motion of both hips." Id. Plaintiff had tenderness to palpation of her "cervical spine in the midline and paraspinal muscles bilaterally," tenderness to palpation in the "lumbrosacral junction midline and paraspinal bilaterally," and tenderness to palpation of the "thoracic spine midline and paraspinal muscles bilaterally." Id. Dr. Wulff provided that he "do[es] not have an explanation for her low back pain or numbness." Id. at 375. He further concluded that plaintiff " is not a surgical candidate." Id. Dr. Wulff noted a fifty percent temporary impairment. Id. Dr. Wullff reviewed MRIs of plaintiff's lumbar and cervical spine from April 2011. Id. He also reviewed X-rays of the cervical and lumbar spine, concluding that the X-rays were normal, with "no evidence of significant degenerative change, trauma or deformity." Id. at 375-76.
Dr. Wulff obtained an MRI of plaintiff's lumbar spine on October 11, 2012. T at 369, 371. He noted
[s]mall foraminal disc protrusions at L3-4 and L4-5. They do not lead to exiting neural foraminal stenosis. No significant dorsal disc herniation is identified. Normal position of the conus meddularis. No significant posterior facet anthropathy. There are congenitally short pedicals but no central canal stenosis appreciated. Normal signal characteristics of the lumbar vertebra and disc. Impression: Essentially normal exam.Id. at 371-72. Dr. Wulff saw plaintiff on three occasions. Id. at 368, 371-72. The ALJ reviewed these records, including Dr. Wullf's review of the spine X-rays and MRIs, and concluded that Dr. Wulff's records show a lack of "any objective basis for the claimant's numerous symptoms and alleged limitations." Id. at 35.
d. Joy Comisso, M.D.
Plaintiff visited Joy Commisso, MD, of the Family Medicine Center, on August 3, 2010 for headaches. T at 236. Plaintiff reported the headaches to be of a severity of seven out of ten, and indicated that they were located in the "frontal right" and "occipital." Id. The headaches caused nausea, dizziness, and a runny nose. Id. Dr. Commisso instructed plaintiff to try the over-the-counter pain medicine, Excedrine, and that if it is unsuccessful, to take Imitrex. Id. On October 12, 2010, plaintiff reported that her migraines were improving and occurred less than once per week. Id. at 238. She indicated that "Execedrin relieves her migraine pain." Id. On October 19, 2010plaintiff was treated for anemia with iron. Id. at 241. On January 20, 2011, plaintiff visited Dr. Commisso for headaches and anemia. Id. at 242. She reported that her headaches "occur intermittently" and are "unchanged." Id. Plaintiff noted that she has "migraines everyday with headache, phonophobia, photophobia x2 years. Imitrex did not help." Id. Dr. Commissio noted that plaintiff's migraines were "[l]ikely anxiety related," provided a prescription for Zomig, and noted that plaintiff should "[c]onsider counseling." Id. at 243. On February 22, 2011, plaintiff visited for a migraine follow up. Id. at 245. Plaintiff noted that her headaches occur intermittently and that "[t]he problem is improving." Id. Dr. Commisso recommended that plaintiff continue taking Motrin as needed. Id.
On March 15, 2011, plaintiff reported to Dr. Commisso severe and constant neck pain following a motor vehicle accident in which her car was hit on the driver's front side by a tractor trailer. T at 247. Plaintiff complained of "severe and constant" neck pain, right arm and right leg pain, and "numbness and tingling to fingers and toes," and "tremors right side." Id. Dr. Commisso diagnosed plaintiff with whiplash and lower back pain. Id. at 250. She recommended that plaintiff continue taking Tylenol and Motrin, as needed, and that plaintiff engage in counseling for anxiety. Id. On April 28, plaintiff reported that her back pain had improved since her last visit to the chiropractor. Id. at 253.
The only other treatment records in the administrative transcript from Dr. Commisso relate to plaintiff's treatment for thyroid problems. T at 251-56.
e. Shari Gaal, Achieve Physical Therapy
On July 30, 2012, plaintiff reported that she had a "tough weekend" as she "stood a lot at a wedding and got hit in [the] back." T at 519. Plaintiff's diagnoses was lumbago, displacement of lumbar intervertebral disc without myleopathy, and brachial neuritis or radiculitis NOS. Id. On August 9, plaintiff reported that she "survived bus ride south [for vacation] but with significant soreness." Id. at 509, 512. On Aug ust 16, plaintiff reported that she took her son to the zoo the day before that was "pretty stiff." T at 506. On September 5, plaintiff reported that she was "on feet a lot yesterday - did better that she would've a month ago." Id. at 478. On September 7, plaintiff was "generally sore but able to do more at home." Id. On October 18, plaintiff reported that she has difficulty doing her hair, lying in bed, and her son assists her with carrying her laundry basket. Id. at 447. She reported that chiropractic care did not help. Id. On October 30, plaintiff's neck was sore and she had a headache "after working on a craft yesterday." Id. at 437. Plaintiff was "gradually improving flexibility, but still functionally limited." Id. On November 1, plaintiff reported that she was "sore everywhere; did a lot of walking for [H]alloween last night." Id. at 435. On November 8, plaintiff's complaints were "not too bad today." Id. at 431. Plaintiff had "stiffness across lower back but strength and east of lifting seems to be improving." Id. On November 15, plaintiff had a "pretty good day, did have some arm numbness last night while sitting at laptop; saw MD and they want her to consider a spinal cord stimulator." Id. at 425. On November 13, plaintiff "had a terrible weekend due to overdoing it; was in tears and considered ER, but better today." Id. at 427. On November 27, plaintiff was "sore all over after doing a lot around the house yesterday, but she was doing stuff she wouldn't have been able to do a few months ago." Id. at 417. On November 27, plaintiff's pain was "not too bad despite having done a lot of walking last night shopping." Id. at 419. On November 29, plaintiff reported right thigh strain, and stated that she "did a lot of walking again yesterday." Id. at 415. On December 6, plaintiff reported that she "did a lot of stairs yesterday to decorate and is still ok today." Id. at 411. Her physical therapist indicated "good progression in strength tolerating inc[.] strengthening with less difficulty." Id. She had an "abnormal posture with m. guarding." Id. Plaintiff's physical therapist indicated that her rehab potential was "fair." Id.
It appears plaintiff began physical therapy on June 18, 2012. See, e.g., T at 411.
The ALJ reviewed plaintiff's physical therapy notes and observed that plaintiff "did more than she alleged was her maximum daily ability." T at 35. The ALJ noted plaintiff's attending a wedding and standing a lot, taking a long bus ride for vacation, taking her son to the zoo, walking a lot for Halloween, doing a lot of walking while shopping, performing activities around the house, and climbing stairs in her house to decorate. Id. The ALJ also noted that plaintiff "occasionally complain[ed] of stiffness and soreness after some strenuous activities, but there is no evidence of the disabling pain that she alleged at the hearing. Furthermore, her overall level of activities and frequency of her activities suggest that she is capable of the [RFC] set forth in this decision." Id.
f. Christina Caldwell, Psy.D. - Psychiatric Consultative Examiner
The ALJ reviewed consultative examiner Christina Caldwell, Psy D.'s November 16, 2011 psychiatric evaluation. T at 35-36. Plaintiff reported difficulty sleeping due to pain. Id. at 328. She further contended that she "experiences panic attacks whenever she is on a highway." Id. Plaintiff "refuses to drive on the highway, but if she is driving with someone and they go on the highway, she experiences palpitations, sweating, breathing difficulties, and trembling." Id. Plaintiff's recent and remote memory skills were in tact. Id. at 329. Her insight and judgment were fair. Id. at 329-30. Plaintiff reported the ability to: dress, bathe, and groom herself; drive when not on the highway; manage finances; clean; shop; and do laundry with help. Id. at 330. Plaintiff reported that she has two best friends "who she sees on occasion, and she receives a lot of support from them." Id. Plaintiff indicated that she has a close relationship with family and a "great relationship" with her fiancé and sons. Id. Plaintiff's hobbies and interests "include going to doctors appointments, caring for her sons, doing light cleaning, and cooking." Id. Dr. Caldwell concluded that plaintiff is able to
follow and understand simple directions and instructions, able to perform simple tasks independently, able to maintain attention and concentration, able to maintain a regular schedule, able to learn new tasks, able to perform complex tasks independently, able to make appropriate decisions, and able to relate adequately with others. She is limited in her ability to appropriately deal with stress. Difficulties are caused by Axis I diagnosis and physical limitations.Id. at 330. Dr. Caldwell diagnosed panic disorder without agoraphobia. Id.
The ALJ gave great weight to Dr. Caldwell's conclusions that plaintiff would have "some limits handling stress due to her panic disorder and physical limitations." Id. at 36. Accounting for this limitation in his RFC, the ALJ limited plaintiff to simple, routine, and repetitive tasks. Id.
g. Ammaji Manyam, M.D. - Internal Medicine Consultative Examiner
Dr. Manyam performed a consultative internal medicine examination of plaintiff on November 16, 2011. T at 332. Plaintiff reported that she does not cook, but she "cleans seven days a week." Id. at 333. She showers, bathes, and dresses herself without assistance. Id. She watches television, listens to the radio, and socializes with friends. Id. Plaintiff's gait was normal; she walked on heels and toes without difficulty; she could squat fully; her stance was normal; she needed no help changing, or getting on/off the exam table; and she rose from her chair without difficulty. Id.
Plaintiff's cervical and bilateral spine showed "full flexion, extension, lateral extension bilaterally, and full rotary movement bilaterally." T at 334. There was "[n]o evident sublaxations, contractures, ankylosis, or thickening." Id. Plaintiff's joints were "stable and nontender." Id. Straight leg raises were negative bilaterally. Id. Plaintiff had full range of movement of shoulders, elbows, forearms, wrists, hips, knees, and ankles, bilaterally. Id. She had full strength in her upper and lower extremities and no muscle atrophy. Id. Dr. Manyam's prognosis for plaintiff was good. Id. Dr. Manyam opined that plaintiff had no physical limitations, but recommended that she avoid smoke, dust, and pollen, due to her history of asthma. Id. at 335. The ALJ accorded partial weight to Dr. Manyam's opinion because "[p]hysical examination findings by Dr. Kuhn . . . and Dr. Wulf[f] did evidence some reduced ranges of motion and positive tenderness in the spine. Id. at 36.
h. Gary L. Kuhn, D.C. - Chiropractic Consultative Examiner
Dr. Kuhn performed a chiropractic independent medical exam of plaintiff on July 29, 2011. T at 321. Based on Dr. Kuhn's examination, he opined that plaintiff suffered cervical sprain/strain, thoracic strain, lumbroscaral sprain/strain. Id. at 322. Dr. Kuhn concluded that plaintiff "sustained a muscle and ligamentous injury and strain to the cervical, thoracic, and lumbar regions." Id. at 323. Dr. Kuhn's prognosis was that plaintiff "needs to increase flexibility and stretching exercises. Prognosis should improve to excellent over the next three months with follow-up care and reconditioning." Id. He estimated that plaintiff could reach pre-injury status by September of 2011. Id. Dr. Kuhn opined that plaintiff's "[o]ccupational duties should be able to commence by the end of September [2011] based on this examination. It is too early to tell what the patient's restrictions would be at this time. Follow up examination may be necessary in 2-3 months[.]" Id.
The ALJ "considered [Dr. Kuhn's] clinical findings and conclusions in this decision as a whole." T at 324. However, the ALJ was "unable to consider his prediction as to when the claimant could work because its is merely a prediction[,]" and noted that Dr. Kuhn did not give an opinion as to plaintiff's functional capacity. Id.
i. E. Kamin Psychology - Psychiatric Review Technique
E. Kamin, a state agency psychological consultant, reviewed plaintiff's medical records. T at 336. Dr. Kamin concluded that plaintiff did not have a severe mental limitation. Id. at 346-47. The ALJ accorded "little weight" to this opinion, and "more weight" to Dr. Caldwell's assessment because E. Kamin did not perform an in-person evaluation of plaintiff. Id. at 36.
B. Severity
At step two of the sequential analysis, the ALJ must determine whether the claimant has a "severe medically determinable physical or mental impairment." 20 C.F.R. § 416.920(a)(4)(ii). A finding of not severe is appropriate when an impairment, or combination of impairments, "does not significantly limit [the claimant's] physical or mental ability to do basic work activities." Id. § 416.921(a). "The 'mere presence of a disease or impairment, or establishing that a person has been diagnosed or treated for a disease or impairment' is not, itself, sufficient to deem a condition severe." Bergeron v. Astrue, No. 09-CV-1219, 2011 WL 6255372, at *3 (N.D.N.Y. Dec. 14, 2011) (quoting McConnell v. Astrue, No. 6:03-CV-0521, 2008 WL 833968, at *2 (N.D.N.Y. Mar. 27, 2008)). The claimant bears the burden of presenting evidence to establish severity. 20 C.F.R. § 404.1512(c). The claimant must demonstrate that the impairment has "caused functional limitations that precluded him from engaging in any substantial activity for one year or more." Perez v. Astrue, 907 F. Supp. 2d 266, 272 (N.D.N.Y. 2012).
The ALJ concluded that plaintiff's severe impairments are lumbar spine disc bulge, asthma, and panic disorder. T at 31. An argument can be made that plaintiff's headaches/migraines should also have been determined to be a severe impairment. Plaintiff testified that she experiences headaches four times per week, which last "[t]hroughout the day" and are "[r]eal intense, like a 10." Id. at 17. Plaintiff takes Motrin for her headaches and puts a "cold pack" on her head and on the back of her neck. Id. Plaintiff treated for headaches/migraines with Dr. Commisso beginning in August 2010, prior to the alleged onset date. Id. at 236. Plaintiff reported a severity of seven out of ten. Id. Plaintiff indicated that Excedrin helped her headaches. Id. at 236. Plaintiff returned to Dr. Commisso in March 2011, following the accident. Id. at 247. Plaintiff did not make further complaints about migraines or headaches. Id.
Substantial evidence supports that the ALJ did not find plaintiff's migraines or headaches to be severe. Although plaintiff testified as to their frequency or severity at the hearing, T at 17, beyond treatment with her primary care provider and over the counter headache medicine in August 2010 to February 2011, there is no record evidence that plaintiff sought continued treatment for migraines. Id. at 236, 238, 242. Further, although plaintiff reported headaches as frequently as four times per week, such frequency is not reported in plaintiff's activities of daily living. Although plaintiff indicated experiencing a headache to some treatment providers, it appears that the headaches were in response to neck pain or nerve block injections. Id. at 388. Thus, the ALJ did not commit error by failing to conclude that plaintiff's migraines/headaches were a severe impairment, as the medical evidence does not support that her migraines/headaches significantly limited her physical or mental ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 404.1521, 416.920(c), 41.921(b). Even if the ALJ did commit such error, an error at step two - either a failure to make a severity determination regarding an impairment, or an erroneous determination that an impairment is not severe - can be harmless error if the ALJ continues the analysis and considers all impairments in his RFC determination. See Tryon v. Astrue, 10-CV-537, 2012 WL 398952, at *3-4 (N.D.N.Y. Feb.7, 2012) ("Often when there are multiple impairments, and the ALJ finds that only some of the impairments, but not others, are severe, any error in the severity analysis is harmless because the ALJ continues with the . . . sequential analysis, and does not deny plaintiff's application based on the second step alone." (internal quotation marks and citations omitted)); 20 C.F.R. § 416.945(a)(2) ("We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not 'severe,' . . . when we assess your [RFC]."). It would be harmless, as the ALJ found that plaintiff had other severe impairments and continued through the sequential evaluation past step two. T at 32-33. Accordingly, the ALJ's step two determination as to plaintiff's headaches or migraines is supported by substantial evidence.
C. Listings
i. 12.06
Impairments listed in Appendix 1 of the Regulations (the "Listings") are "acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment." Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995). Accordingly, a claimant who meets or equals a Listing is "conclusively presumed to be disabled and entitled to benefits." Id. at 1022; see 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii) ("If you have an impairment(s) that meets or equals one of our listings in appendix 1 of this subpart and meets the duration requirement, we will find that you are disabled.").
The ALJ reasonably concluded that plaintiff's anxiety, although "severe" under step two, did not meet or medically equal listing 12.06. Section A calls for "medically documented findings" of either "a persistent irrational fear of a specific object, activity, or situation which results in a compelling desire to avoid the dreaded object, activity, or situation"; or "recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror and sense of impending doom occurring on the average of at least once a week"; or "recurrent obsessions or compulsions which are a source of marked distress"; or "recurrent and intrusive recollections of a traumatic experience, which are a source of marked distress"; or "generalized persistent anxiety accompanied by three out of four of the following signs or symptoms": motor tension, or autonomic hyperactivity, or apprehensive expectation, or vigilance and scanning. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.06. If a claimant meets the requirements of paragraph A, she must still meet the criteria in paragraphs B or C of section 12.06 to be qualified as disabled at step three. Id. Paragraph B is met if the claimant suffers from at least two of the following: "marked restriction of activities of daily living"; "marked difficulties in maintaining social functioning"; "marked difficulties in maintaining concentration, persistence, or pace"; "repeated episodes of decompensation, each of extended duration." Id. If a claimant meets the criteria in paragraph A, but does not satisfy the requirements of paragraph B, she must still be found disabled at step three of the sequential evaluation if she is completely unable to function independently outside the area of her home, as explained in paragraph C. Id.
In reviewing the requirements for anxiety-related disorders under listing 12.06, the ALJ reasonably concluded that plaintiff failed to demonstrate that she met the requirements of paragraph B or C. Although plaintiff indicated anxiety, plaintiff indicated in her exam with Dr. Caldwell that her anxiety is related to driving on the highway, either herself or as a passenger. T at 328. She states that she will not drive on highways due to this anxiety. Id. Plaintiff did not indicate that this anxiety caused any functional limitations beyond her ability to drive on the highway. Id. The ALJ concluded that plaintiff has mild limitations in social functioning. Id. at 32. This is supported by substantial evidence. Plaintiff reported in her disability function report that, due to her illness, she cannot "[d]rive on highway, hangout with friends [&] family[, and go] shopping," do yard work, or exercise, yet in that same report plaintiff indicated that she shopped for groceries one a week and, in response to a question that inquired about changes in her social activities due to her injuries, she provided "none." Id. at 163, 165-68. Further, plaintiff reported having two best friends who provide good support, indicated that she socializes with others, and stated that she had a "great relationship" with her children and fiancé with whom she lives. Id. at 329-30. There is no evidence of any marked restrictions of daily living due to her anxiety. Plaintiff indicated that she cleaned her house seven days a week, though her son helped at times with carrying the laundry basket; prepared food; groomed, bathed, and dressed herself; went shopping twice a week, decorated her home; took her son to the zoo; went on vacations; took public transportation; drove; cared for her children; and engaged in hobbies such as watching television and doing crafts. Id. at 330, 333. Further, plaintiff indicated that stress or changes in schedule do not effect her, she does not have trouble remembering things, she does not have difficulty getting along with others or those in positions of authority, she has no difficulty paying attention, she can follow spoken and written instructions, and her only difficulty in finishing what she starts is completing physical tasks due to pain. Id. at 169-70.
All testing indicated that plaintiff had adequate concentration, persistence and pace, in tact memory skills (three of three objects immediately, two of three objects after five minutes, six digits forward and four digits backward), neutral mood, clear sensorioum, appropriate affect, intelligible and clear speech, cooperative and responsive to questions, adequate manner of relating, coherent and goal-directed though processes, appropriate eye contact, and oriented times three. T at 329-330. Further, plaintiff has no evidence of repeated, extended episodes of decompensation. Thus, the ALJ's conclusion that plaintiff's anxiety did not meet or medically equal listing 12.06 is based on substantial evidence.
ii. 1.04
Section 1.04 of the Listings, Disorders of the spine, requires "compromise of a nerve root (including the cauda equina) or the spinal cord" with one or more of the following: (a) "[e]vidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);" (b) "[s]pinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours;" or (c) "[l]umbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively." 20 C.F.R. Pt. 404, Subpt. P, Appx. 1, § 1.04.
The ALJ considered listing 1.04, but determined that the severity of plaintiff's impairment did not meet or medically equal the listing. T at 32. This finding is based on substantial evidence. Here, all imaging studies resulted in negative findings. The April 2011 cervical spine MRI showed no spondylosisthesis, no cord compression, no abnormal signal in the spinal cord, her paraspinal tissue was within normal limits. Id. at 224. The cervical MRI showed anterior spondylosis at T1-2 and T2-3. Id. The April 2011 lumbar MRI showed no fracture, no spondylolisthesis, and no spinal canal or foraminal stenosis. Id. at 225. The MRI revealed a central disc bulge at L4-L5. Id. An October 2012 lumbar spine MRI showed foraminal protrusion at L3-L4 and L4-L5. Id. at 371. However, it revealed no exiting neural foraminal stenosis, no significant dorsal disc herniation, normal conus, no significant posterior facet anthropathy, no central canal stenosis, normal signal characteristics of lumbar vertebra and disc. Id. at 371-72. Thus, the October 2012 MRI was determined to be an "essentially normal exam." Id. Her EMG was negative for lumbar radiculopathy, cervical radiculopathy, peripheral neuropathy, or peripheral nerve entraptment. Id. at 221, 398. Plaintiff had no atrophy or motor weakness. She had full muscle strength. Id. at 334. Dr. Wullf, the orthopedic surgeon, noted that he could not determine an etiology of plaintiff's pain and numbness. Id. at 375. He concluded that she was not a surgical candidate. Id. Other treatment providers were also unable to determine the cause of plaintiff's pain. Id. at 384. Therefore, the ALJ reasonably concluded that, despite plaintiff's complaints of lumbar and cervical spine pain, plaintiff failed to meet or medically equal Listing 1.04.
Further, there is limited evidence that plaintiff is unable to ambulate effectively. Although some physical therapy notes indicated that plaintiff's gait was antalgic, T at 379, 386, 399, other treatment records noted that plaintiff's gait was normal, that she could stand on her toes and heels, that she was able to squat fully, rise from her chair, get on/off the examination table without assistance, and did not need to walk with an assistive device. T at 333. Treatment records indicated that plaintiff engaged in activities requiring her to sit or stand for extended periods of time, which does not suggest an inability to effectively ambulate, despite her contentions at the hearing. Id. at 415, 417, 419, 435, 478, 506, 509, 512. Althoug h plaintiff reported some increased pain after engaging in extended activity, she did not indicate an inability to do so, as alleged at the hearing. Id. at 15-16.
Thus, the ALJ's determination that plaintiff's lumbar spine disc bulge and related spine pain was not of a severity to meet or medically equal a listing is supported by substantial evidence.
D. RFC
Residual functional capacity ("RFC") is defined as: "what an individual can still do despite his or her limitations." Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). "Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." Id.
As previously indicated, the ALJ determined that plaintiff retained the RFC to perform light work; carry up to twenty pounds occasionally, and ten pounds frequently; stand or walk for up to six hours and sit for up to six hours in an eight-hour day; occasionally climb ladders, ropes or scaffolds; and frequently climb ramps or stairs, balance, stoop, kneel, crouch, and crawl. T at 32-33. The ALJ provided that plaintiff should avoid concentrated exposure to fumes, odors, dust, gases, and poorly-ventilated areas. Id. at 33. The ALJ also limited plaintiff to avoid concentrated use of moving machinery and unprotected heights. Id. Finally, plaintiff was limited to simple, routine, and repetitive tasks. Id.
i. Mental RFC
The ALJ's RFC insofar as it considers plaintiff's mental impairment is supported by substantial evidence. Plaintiff indicated that she experienced anxiety and noted that she experiences this while driving on the highway. T at 328, 350. Plaintiff did not state that she had anxiety relating to any other daily activity or interaction. Id. Plaintiff was not taking medication for her anxiety and was not undergoing psychiatric or psychological treatment. Id. at 328. The ALJ considered consultative examiner Dr. Caldwell's findings that plaintiff has some difficulty dealing with stress, and thus, limited plaintiff to simple, routine, and repetitive tasks. Id. at 36. The psychiatric testing in the record indicates that plaintiff can perform the mental demands of light work that is limited to simple, routine, and repetitive tasks. SSR 85-15 provides that "[t]he basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting." SSR 85-15. As noted, Dr. Caldwell reported that plaintiff has no significant difficulty with any of these categories. Thus, the undersigned concludes that the RFC, insofar as it relates to plaintiff's anxiety, is supported by substantial evidence.
ii. Physical RFC
Here, the ALJ's RFC assessment insofar as it relates to plaintiff's physical limitations and abilities is not supported by substantial evidence as the ALJ failed to meet his duty to fully develop the record. The ALJ is under an affirmative duty to "make every reasonable effort" to develop the record. 20 C.F.R. §§ 404.1512(d), 416.912(d). Moreover, an ALJ has an independent duty to make reasonable efforts to obtain a report prepared by a claimant's treating physician, including an assessment of the claimant's functional capacity, in order to afford the claimant a full and fair hearing. Smith v. Astrue, 896 F. Supp. 2d. 163, 176 (N.D.N.Y. 2012). However, "the ALJ has no duty to re-contact a source where the evidence submitted by that source is complete where it includes all of the factors set forth in 20 C.F.R. 416.913 and there is no indication that further contact will result in additional information, re-contact is not necessary." Slater v. Commissioner of Soc. Sec., 14-CV-255 (GTS), 2015 WL 6157396, at *7 (N.D.N.Y. Oct. 20, 2015) (citation omitted); Pellam v. Astrue, 508 F. App'x 87, 90 (2d Cir. 2013) (concluding that the ALJ's review of all treatment notes from the plaintiff's treating physician and an RFC assessment from a consultative examiner, the ALJ was not obligated to supplement the record by obtaining an MSS from the plaintiff's treating physician) (citing Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999)). 20 C.F.R. § 416.913 provides that
[m]edical reports should include -
(1) Medical history;
(2) Clinical findings . . . ;
(3) Laboratory findings . . . ;
(4) Diagnosis;
(5) Treatment prescribed with response, and prognosis; and
(6) A statement about what you can still do despite your impairment(s) based on the acceptable medical source's findings on the factors under paragraphs (b)(1) through (b)(5) of this section . . . Although we will request a medical source statement about what you can still do despite your impairment(s), the lack of the medical source statement will not make the report incomplete.
The undersigned acknowledges that the record does not contain a medical source statement ("MSS") from any of plaintiff's treating providers - PAs Jennifer Godlewski and Robert Richman from the New York Spine & Wellness Center; Dr. James Walzer, D.C.; Dr. Wulff, orthopedic surgeon; primary care provider Joy Commisso, M.D.; or physical therapist Shari Gaal from Achieve Physical Therapy - containing a function-by-function assessment.
As indicated above, supra n.4, it appears that plaintiff's treatment at the New York Spine & Wellness Center was largely managed by P.A. Godlewski and Richman. Although some treatment notes indicate that plaintiff was also seen by a Dr. Lok, or Dr. Cantania, the majority of treatment notes are signed solely by a P.A. It unclear the extent to which Dr. Lok or Dr. Cantania had involvement in plaintiff's treatment and care, and, thus, unclear whether the nature of the physicians' relationship with plaintiff would rise to the level of "treating physician." See, e.g., George v. Bowen, 692 F. Supp. 215, 219 (S.D.N.Y. 1988).
The only assessment of plaintiff's physical limitations in the administrative transcript is that of internal medicine consultative examiner Dr. Manyam, who opined that plaintiff had no limitations on her abilities to perform basic work activities. T at 35. However, the ALJ accorded only "partial weight" to Dr. Manyam's opinion that plaintiff had no physical limitations. Id. at 36. Although consultative chiropractor Dr. Kuhn indicated that plaintiff would likely be at pre-accident status by September 2011, the ALJ indicated that he was "unable to consider his prediction as to when the claimant could work because it is merely a prediction." Id. at 36. Further, the ALJ acknowledged that Dr. Kuhn did not provide an opinion as to plaintiff's functional capacity. Id. The ALJ gave little weight to state agency psychological consultant E. Kamin that plaintiff did not have any limitations. Id. Although the record contains treatment notes from plaintiff's treating providers, some of which are extensive, these providers make no comment on plaintiff's abilities to perform functions such as lifting, sitting, standing, and walking. The ALJ did not indicate the weight given to records of Dr. Walzer, providers at the New York Spine & Wellness Center, Dr. Wulff, or physical therapist Shari Gaal - likely due to the lack opinions of plaintiff's functional abilities from these providers.
The ALJ opines that plaintiff could lift up to twenty pounds occasionally, ten pounds frequently, and could walk/stand for at least six hours and sit for at least six hours in an eight hour work day. T at 33. However, the undersigned cannot determine the medical evidence on which the ALJ relies to reach this determination, as the only assessment of plaintiff's physical abilities was assigned only partial weight. Id. at 36. Although the ALJ references that plaintiff's diagnostic and imaging studies revealed no objective findings, it does not follow automatically that plaintiff has no physical limitations merely because of a lack of positive imaging studies or testing. It is inappropriate for an ALJ to reach his conclusion as to a plaintiff's RFC "through her own interpretation of various MRIs and x-ray reports contained in the treatment records." Gross v. Astrue, 12-CV-6207P, 2014 WL 1806779, at *18 (W.D.N.Y. May 7, 2014). Although an ALJ may rely on the opinion of a consultative examiner to support an RFC assessment, as they are deemed qualified experts in social security disability, Monguer v. Heckler, 722 F.3d 1033, 1039 (2d Cir. 1983), where, as here, the ALJ gives only "partial" or limited weight to such an opinion and that opinion is the only assessment of plaintiff's functional limitation in the record by someone who has examined the plaintiff, it cannot be said that the ALJ's opined limitations are properly supported by medical evidence because "an ALJ is not qualified to assess a claimant's RFC on the basis of bare medical findings, and as a result an ALJ's determination of RFC without a medical advisor's assessment is not supported by substantial evidence." Dailey v. Astrue, 09-CV-99, 2010 WL 4703599, at *11 (W.D.N.Y. Oct. 26, 2010) (internal citation and quotation marks omitted) (citing Suide v. Astrue, 371 F. App'x 684, 689-90 (7th Cir. 2010) (holding that "the evidentiary deficit" left by the ALJ's rejection of a physician's reports, requires remand where the "rest of the record simply does not support the parameters included in the ALJ's [RFC] determination, such as an ability to 'stand or walk for six hours' in a typical work day.")).
The undersigned must assess whether the ALJ was required to recontact plaintiff's providers for an MSS and, if so, whether recontacting would likely result in additional information. See Slater, 2015 WL 6157396, at *7. Plaintiff's records indicate that she saw Dr. Wulff for three visits, and after obtaining MRI results, he indicated that he could find no objective reason for plaintiff's complaints of pain and numbness; thus, Dr. Wulff referred plaintiff back to the New York Spine & Wellness Center. T at 368-9, 372, 375. Thus, as Dr. Wulff saw plaintiff on just three visits, it is not likely that contacting Dr. Wulff to obtain an MSS would likely result in additional information helpful to forming an opinion on plaintiff's physical limitations. See, e.g., Donnelly v. Colvin, 13-CV-7344 (AJN/RLE), 2015 WL 1499227, at *12 (S.D.N.Y. Mar. 31, 2015) (holding that three visits with a doctor "do not constitute sufficient contact to warrant [the doctor's] opinion being afforded additional weight as [the plaintiff's] treating physician."). Similarly, Dr. Commisso, is plaintiff's primary care provider and an acceptable medical source; however, the administrative transcript largely contains treatment records for visits made prior to the alleged onset date and for headaches or for thyroid problems. Id. at 236-45. Plaintiff visited Dr. Commissio for neck pain following the accident on one occasion, at which time Dr. Commisso diagnosed whiplash recommended over the counter painkillers. Id. at 250. There is no evidence in the administrative transcript indicating that plaintiff continued treatment with Dr. Commisso for back pain or any alleged impairment resulting from the car accident. Thus, recontacting Dr. Commisso is not likely to result in information relevant to an RFC assessment.
The remainder of providers plaintiff visited for back and neck pain were not acceptable medical sources - PA Jennifer Godlewski and Robert Richman; Dr. James Walzer, D.C.; and physical therapist Shari Gaal. However, although physicians assistants, chiropractors, and physical therapists are not acceptable medical sources, and therefore their opinions and records cannot alone establish the existence of a medical impairment, they are considered "other source[s]" whose opinions should be considered and evaluated "on key issues such as impairment severity and functional effects[.]" SSR 06-03p. The undersigned recognizes that the regulations do not direct the ALJ to contact providers other than treating physicians to obtain MSS. 20 C.F.R. § 416.913. However, PA Godlewski and Richman from the New York Spine & Wellness Center, James Walzer, D.C., and physical therapist Shari Gaal have engaged in extensive treatment with plaintiff. These providers have seen plaintiff over periods of several weeks or months, and likely have a greater knowledge of plaintiff's specific functional limitations. Thus, obtaining an MSS from these providers is likely to result in additional information helpful to reaching a determination as to plaintiff's specific abilities or limitations in engaging in the physical activities necessary to perform basic work activities.
Acceptable medical sources are (1) licensed physicians, (2) licensed or certified psychologists, (3) licensed optometrists, (4) licensed podiatrists, and (5) qualified speech-language pathologists. 20 C.F.R. § 404.1513(a).
Ultimately, as the ALJ assigned "partial" weight to the only assessment of plaintiff's physical abilities in the record based on personal examination, leaving an "evidentiary deficit" of any medical support for the opined RFC, Suide, 371 F' Appx. at 690, the ALJ's physical RFC cannot be said to be based on substantial evidence as the undersigned cannot determine upon what evidence the RFC is based. Therefore, it is recommended that this matter be remanded, and that, on remand, the ALJ obtain medical source statements from treating providers and, if necessary, any acceptable medical sources or consultative sources in order to reach a complete assessment as to each of plaintiff's functional limitations.
As discussed above, the undersigned recognizes that E. Kamin also reached a conclusion as to plaintiff's limitations; however, E. Kamin did not examine plaintiff and the ALJ accorded only little weight to his assessment. T at 36. Further, the ALJ reviewed Dr. Kuhn, D.C.'s determination, and indicates that he "considered" his clinical findings, but acknowledged that Dr. Kuhn did not assess plaintiff's functional capacity. Id. Thus, Dr. Manyam's opinion remains the only opinion as to plaintiff's specific functional abilities.
E. Credibility
Courts in the Second Circuit have determined pain is an important element in determining credibility, and evidence of a plaintiff's complaints of pain and limiting symptoms must be carefully considered. Ber v. Celebrezze, 333 F.2d 923 (2d Cir. 1994). Further, if an ALJ rejects a claimant's testimony of pain and limitations, he must be explicit in the reasons for rejecting the testimony. Brandon v. Bowen, 666 F.Supp. 604, 609 (S.D.N.Y. 1997). However, subjective symptomatology, without more, cannot be the basis for a finding of disability. A claimant must present medical evidence or findings that support the existence of an underlying condition which could reasonably be expected to produce the symptomatology alleged. See 42 U.S.C. §§ 423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. §§ 404.1529(b), 416.929; SSR 96-7p; Gernavage v. Shalala, 882 F.Supp. 1413, 1419 (S.D.N.Y. 1995).
An administrative law judge may properly reject claims of severe, disabling pain after weighing the objective medical evidence in the record, the claimant's demeanor, and other indicia of credibility, but must set forth his or her reasons with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.Lewis v. Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999) (internal citations omitted). Thus, the ALJ must follow a two-step process to evaluate the plaintiff's contention of pain, set forth in SSR 96-7p:
First, the adjudicator must consider whether there is an underlying medically determinable physical or medical impairment (s) . . . that could reasonably be expected to produce the individual's pain or other symptoms . . . .According to 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii) and 416.929(c)(3)(i)-(vii), if the plaintiff's pain contentions are not supported by objective medical evidence, the ALJ must consider the following factors in order to make a determination regarding the plaintiff's credibility:
Second, . . . the adjudicator must evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities . . . .
1. [Plaintiff's] daily activities;
2. The location, duration, frequency and intensity of [Plaintiff's] pain or other symptoms;
3. Precipitating and aggravating factors;
4. The type, dosage, effectiveness, and side effects of any medication [Plaintiff] take[s] or ha[s] taken to alleviate ... pain or other symptoms;
5. Treatment, other than medication [Plaintiff] receive[s] or ha[s] received for relief of ... pain or other symptoms;
6. Any measure [Plaintiff] use[s] or ha[s] used to relieve ... pain or other symptoms;
7. Other factors concerning [Plaintiff's] functional limitations and restrictions due to pain or other symptoms.
If the ALJ finds that the plaintiff's pain contentions are not credible, he must state his reasons "explicitly and with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the ALJ's disbelief." Young v. Astrue, 05-CV-1027, 2008 WL 4518992, at *11 (N.D.N.Y. Sept. 30, 2008) (quoting Brandon v. Bowen, 666 F.Supp. 604, 608 (S.D.N.Y. 1987)).
The undersigned finds no error in the ALJ's credibility assessment. "It is the function of the [Commissioner], not [reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant." Carroll v. Secretary of Health and Human Servs., 705 F.2d 638, 642 (2d Cir.1983) (citations omitted). If there is substantial evidence in the record to support the Commissioner's findings, "the court must uphold the ALJ's decision to discount a claimant's subjective complaints of pain." Aponte v. Secretary, Dep't of Health & Human Servs. of U.S., 728 F.2d 588, 591 (2d Cir. 1984) (citations omitted). Further, the ALJ has the benefit of directly observing a claimant's demeanor and other indicia of credibility which entitles the ALJ's credibility assessment to considerable deference. See Tejada v. Apfel, 167 F.3d 770, 776 (2d Cir. 1999) (citing Pascariello v. Heckler, 621 F.Supp. 1032, 1036 (S.D.N.Y. 1985)); Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999).
Here, the ALJ indicated that he found plaintiff's "medicably determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision." T at 34. The ALJ noted that the "objective and clinical evidence of record" does not fully support plaintiff's complaints of disabling pain. Id. The ALJ referenced normal X-rays and CT scans of plaintiff's head and cervical spine taken the day of the motor vehicle accident. Id. He also indicated that plaintiff's lumbar and cervical MRIs from April 2011 "showed merely anterior spondylosis at T1-2 and T2-3 and an L4-5 central disc bulge. There was no herniation, fracture, or stenosis noted in those April 7, 2011 MRIs." Id. The ALJ also pointed out that the EMG taken for plaintiff's radicular right leg pain were negative for lumbar radiculopathy. Id. The ALJ cited plaintiff's treatment with Dr. Wulff, who noted plaintiff's ranges of motion were mildly to moderately reduced and she had tenderness to palpation in her thoracic spine level, but that her muscle strengths were full, she could walk comfortably, balance on toes and heels, and climb onto the examination table. Id. at 34-35. The ALJ also pointed out inconsistencies between plaintiff's allegations of her limitations at the hearing - that she could stand only fifteen minutes, walk a half of a mile, sit for a few minutes, and lift no more than five pounds - and compared that to her statements of activity to Dr. Caldwell during her examination and the variety of physical activities she reported to her physical therapist. Id. at 35. The ALJ also noted that consultative examiner Dr. Manyam indicated that plaintiff had full range of motion in her lumbar and cervical spine, normal gait and stance, intact grip and dexterity, and no physical limitations. Id. at 36. The ALJ also referred to Dr. Caldwell, the psychiatric consultative examiner, who noted that plaintiff had "some limits handling stress due to her panic disorder and physical limitations." Id. As the ALJ's credibility assessment is supported by plaintiff's activities of daily living, treatment, and largely normal test results, the undersigned finds that the ALJ's credibility determination was based on substantial evidence.
However, the undersigned does recognize that reconsideration of plaintiff's physical RFC may necessarily change the ALJ's credibility assessment - especially if, following remand, medical providers opine limitations that are more reflective of the limitations plaintiff espoused. Therefore, to the extent the District Judge agrees that the matter must be remanded for a new physical RFC assessment, it is recommended that plaintiff's credibility be reassessed insofar as any additional medical evidence obtained on remand alters the initial credibility assessment.
F. Step Five Determination
"At step five of the sequential process, the ALJ considered Plaintiff's age, education, and RFC, to determine whether there were a significant number of jobs in the national economy which Plaintiff could perform. 20 C.F.R. § 404.1569. The ALJ relied on the testimony of a vocational expert. At the hearing the VE testified that based on a hypothetical individual with Plaintiff's age, education, and RFC, there were jobs that existed in significant numbers in the national economy which she could perform. ). The VE testified that a person with the abilities to lift twenty pounds occasionally, ten pounds frequently, stand and walk for about six hours, sit for up to six hours in an eight hour day, occasionally climb ladders, ropes and scaffolds, frequently use ramps and stairs, frequently stoop, kneel, crouch and crawl, avoid concentrated exposure of environmental irritants and concentrated use of moving machinery and unprotected heights could perform the roles of mail clerk, sorter, or marker. T at 20-21. Although the undersigned finds no error at step five insofar as it relates to plaintiff's mental abilities, as the undersigned concludes that the ALJ's physical RFC is not based on substantial evidence, his step five assessment can not be said to be supported by substantial evidence, as the hypothetical presented to the VE reflects that RFC. Because the ALJ's RFC assessment is based on substantial evidence, the ALJ did not err in posing hypothetical questions to the vocational expert that was based on that assessment. Cf. Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (approving a hypothetical question to a vocational expert that was based on substantial evidence in the record)." Accordingly, should the matter be remanded, on remand, it is recommended that, if the ALJ is to get to step five of the sequential evaluation, a new step five assessment must be made that is reflective of the updated physical RFC, and, to the extent that the ALJ present hypothetical questions to a VE, such questions must also properly reflect the updated physical RFC.
III. Conclusion
WHEREFORE, for the reasons stated above, it is hereby
RECOMMENDED that the Commissioner's motion for judgment on the pleadings (Dkt. No. 16) be DENIED, and that the Commissioner's decision denying disability benefits be REMANDED, pursuant to 42 U.S.C. § 405(g), to the Commissioner for further proceedings consistent with this Report-Recommendation and Order; and it is
ORDERED, that copies of this Report-Recommendation and Order be served on the parties in accordance with the Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 6(e), 72. Dated: March 15, 2016
Albany, New York
/s/_________
Christian F. Hummel
U.S. Magistrate Judge