Opinion
1:23-cv-03349-JPC-GRJ
04-08-2024
JAI M.C., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES, United States Magistrate Judge
In April of 2021, Plaintiff Jai M.C.applied for Supplemental Security Income Benefits under the Social Security Act. The Commissioner of Social Security denied the application. Plaintiff, pro se, commenced this action seeking judicial review of the Commissioner's denial of benefits under 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
Plaintiff's name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
This case was referred to the undersigned for a Report and Recommendation on March 7, 2024. For the following reasons, the Commissioner's decision should be reversed and this matter should be remanded for further proceedings.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on April 30, 2021, alleging disability beginning April 1, 2021. (T at 155-64).Plaintiff's application was denied initially and on reconsideration. He requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on April 28, 2022, before ALJ Lucian A. Vecchio. (T at 58-85). Plaintiff appeared pro se and testified. (T at 61-69, 84-85). The ALJ also received testimony from Zach Fosberg, a vocational expert. (T at 71-84).
Citations to “T” refer to the administrative record transcript at Docket No. 22.
B. ALJ's Decision
On May 19, 2022, the ALJ issued a decision denying the application for benefits. (T at 8-26). The ALJ found that Plaintiff had not engaged in substantial gainful activity since April 30, 2021 (the date he applied for benefits). (T at 13).
The ALJ concluded that Plaintiff's degenerative disc disease of the lumbar spine; internal derangement in the left shoulder; internal derangement in the right ankle, status-post right ankle surgery; degenerative changes in the right knee; and osteoarthritis in the right ankle were severe impairments as defined under the Social Security Act. (T at 13).
However, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 403, Subpart P, Appendix 1. (T at 14).
At step four of the sequential analysis the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform sedentary work, as defined in 20 CFR 416.967 (a), with the following limitations; he can stand or walk combined for one hour maximum per eight-hour workday and sit seven hours maximum per eight-hour workday; perform occasional kneeling, squatting, or crawling; with no climbing ladders, scaffolds, or stairs; or walking on uneven surfaces; and no exposure to unprotected heights, or heavy machinery; and no operation of motor vehicles, foot controls, or foot pedals. (T at 15). The ALJ further found that Plaintiff could reach overhead with his left arm less than occasionally, reach forward with his left arm occasionally, could not lift more than 5 pounds with the left arm, and would be off-task for 6% of an 8-hour workday. (T at 15).
The ALJ concluded that Plaintiff could perform his past relevant work as a reception clerk. (T at 21). In addition, considering Plaintiff's age (44 on the application date), education (at least high school, able to communicate in English), work experience, and RFC, the ALJ determined that there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 21-22).
As such, the ALJ found that Plaintiff had not been under a disability, as defined under the Social Security Act, and was not entitled to benefits for the period between April 30, 2021 (the application date) and May 19, 2022 (the date of the ALJ's decision). (T at 22-23).
On March 28, 2023, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. (T at 1-7).
C. Procedural History
Plaintiff commenced this action by filing a Complaint pro se on April 20, 2023. (Docket No. 1). The Commissioner filed a brief in support of a request for judgment on the pleadings on January 2, 2024. (Docket No. 33). Plaintiff submitted several letters in support of his request for judicial review of the denial of benefits. (Docket Nos. 35, 36).
The matter was assigned to the undersigned for a Report and Recommendation on March 7, 2024.
II. APPLICABLE LAW
A. Standard of Review
“It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). The court's review is limited to “determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings, which are considered conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted).
“When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or when the ALJ's rationale is unclear, remand “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. Five-Step Sequential Evaluation Process
Under the Social Security Act, a claimant is disabled if he or she lacks the ability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months ....” 42 U.S.C. § 423(d)(1)(A).
A claimant's eligibility for disability benefits is evaluated pursuant to a five-step sequential analysis:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without
considering vocational factors such as age, education, and work experience.
4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. 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.See Rolon v. Commissioner of Soc. Sec., 994 F.Supp.2d 496, 503 (S.D.N.Y. 2014); see also 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
The claimant bears the burden of proof as to the first four steps; the burden shifts to the Commissioner at step five. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner determines whether the claimant can perform work that exists in significant numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).
C. Pro Se Standard
In the Second Circuit, “[w]e liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest.” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017)(quoting Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (alterations in original). This applies to requests for review of the denial of Social Security benefits. See Tipadis v. Comm'r of Soc. Sec., 284 F.Supp.3d 517, 523 (S.D.N.Y. 2018).
III. DISCUSSION
For the following reasons, the Court recommends a remand for further development of the record.
Social Security proceedings are non-adversarial and the ALJ is obliged “to investigate the facts and develop the arguments both for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 111, 147 L.Ed.2d 80, 120 S.Ct. 2080 (2000) (citation omitted). The duty to develop the record has been described as a “bedrock principle of Social Security law.” Batista v. Barnhart, 326 F.Supp.2d 345, 353 (E.D.N.Y.2004)(citing Brown v. Apfel, 174 F.3d 59 (2d Cir.1999)).
It is well-settled that “[w]hen a claimant properly waives his right to counsel and proceeds pro se, the ALJ's duties are ‘heightened.'” Moron v. Astrue, 569 F.3d 108, 113 (2d Cir.2009) (citing Cruz v. Sullivan, 912 F .2d 8, 11 (2d Cir.1990)). The ALJ is required “to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.” Cruz v. Sullivan, 912 F.3d 8, 11 (2d Cir.1990)(internal quotation marks omitted).
The Court, in turn, must undertake a “searching investigation of the record” to ensure that the claimant received “a full hearing under the [Commissioner's] regulations and in accordance with the beneficent purposes of the [Social Security] Act.” Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir.1980) (internal quotation marks omitted).
“The reason for this added duty is obvious: claimants unassisted by skilled counsel are unlikely to call to the ALJ's attention all of the information which the ALJ should consider in evaluating the claim.” Molina v. Colvin, No. 15-CV-8088 (JLC), 2016 WL 7388374, at *4 (S.D.N.Y. Dec. 20, 2016)(quotation omitted).
In the present case, the only medical opinions of record were provided by non-examining State Agency review physicians (Dr. A. Vinluan and Dr. M. Kirsch), both of whom opined that Plaintiff could perform a range of light work. (T at 92-96, 108-14).
The ALJ recognized, however, that Plaintiff was more limited than these physicians believed, finding their opinions only “somewhat consistent with” and “generally supported by” the record. (T at 20). The ALJ gave the opinions “some [but] not full consideration in the formulation of [Plaintiff's RFC].” (T at 20).
The ALJ referenced Plaintiff's ongoing treating relationship with several medical professionals, including Dr. Benjamin Williams and Dr. Andrew Rokito (an orthopedist) and summarized their treatment history, while recognizing several gaps in the record before him. (T at 17-18).
Under the circumstances, including the fact that the only two medical opinions of record (from non-examining physicians) were not fully persuasive to the ALJ, the treatment history, and Plaintiff's pro se status, the Court concludes that the ALJ was required to undertake greater efforts to develop the record by asking the treating physicians for their assessment of Plaintiff's work-related limitations and/or obtaining a consultative examination. See Piscope v. Colvin, 201 F.Supp.3d 456, 464 (S.D.N.Y. 2016)(“Given the conflicts in the medical evidence, and in light of the ALJ's decision to grant none of the medical opinions full weight, the record calls for enhancement through inquiries to the treating physicians or consultants that might shed light on the import of their opinions and the conflicts the ALJ identified.”).
It is well-settled that an ALJ must attempt to obtain medical opinions-not just medical records-from a claimant's treating physicians. Skartados v. Comm'r of Soc. Sec., No. 20-CV-3909 (PKC), 2022 WL 409701, at *4 (E.D.N.Y. Feb. 10, 2022) (citing Prieto v. Comm'r of Soc. Sec., No. 20-CV-3941 (RWL), 2021 WL 3475625, at *10-11 (S.D.N.Y. Aug. 6, 2021) (collecting cases)).
“Medical opinions from treating physicians are critical because, beyond simply diagnosing the patient's impairment, they relate the impairment to the patient's functional capacity.” Skartados, 2022 WL 409701, at *4 (citing Guillen v. Berryhill, 697 Fed.Appx. 107, 109 (2d Cir. 2017) (“The medical records discuss her illnesses and suggest treatment for them, but offer no insight into how her impairments affect or do not affect her ability to work, or her ability to undertake her activities of everyday life.”)); see also Robins v. Astrue, No. CV-10-3281 FB, 2011 WL 2446371, at *4 (E.D.N.Y. June 15, 2011)(“It is not sufficient for the ALJ simply to secure raw data from the treating physician. What is valuable about the perspective of the treating physician-what distinguishes him from the examining physician and from the ALJ-is his opportunity to develop an informed opinion as to the ... status of a patient.”)(quoting Peed v. Sullivan, 778 F.Supp. 1241, 1246 (E.D.N.Y.1991)(emphasis original).
The Court recognizes that Plaintiff's application for benefits was filed in April of 2021 and is thus governed by the Commissioner's new regulations for reviewing medical opinion evidence (which abrogated the treating physician's rule).
In January of 2017, the Social Security Administration promulgated new regulations regarding the consideration of medical opinion evidence. The revised regulations apply to claims filed on or after March 27, 2017. See 20 C.F.R. § 404.1520c. The ALJ no longer gives “specific evidentiary weight to medical opinions,” but considers all medical opinions and “evaluate[s] their persuasiveness” based on supportability, consistency, relationship with the claimant, specialization, and other factors. See 20 C.F.R. § 404.1520c (a), (b)(2).
Notably, however, the duty to develop the record, which includes contacting (and re-contacting) treating medical providers when needed to afford the claimant a full and fair hearing based on an adequately developed record, applies to claims governed by the new Regulations. See, e.g., Snoke v. Comm'r of Soc. Sec., No. 22-CV-3708 (AMD), 2024 WL 1072184, at *9 (E.D.N.Y. Mar. 12, 2024); Fintz v. Kijakazi, No. 22-CV-00337(KAM), 2023 WL 2974132, at *7 (E.D.N.Y. Apr. 15, 2023); Cheryl W. v. Kijakazi, No. 3:22-CV-1476 (VAB), 2024 WL 1012923, at *5 (D. Conn. Mar. 8, 2024); Daniela B. v. Kijakazi, 675 F.Supp.3d 305, 316 (E.D.N.Y. 2023); see also Ramos v. Comm'r of Soc. Sec., No. 20-CV-9436 (OTW), 2023 WL 3380660, at *2 (S.D.N.Y. May 11, 2023); Skartados v. Comm'r of Soc. Sec., No. 20-CV-3909 (PKC), 2022 WL 409701, at *4 (E.D.N.Y. Feb. 10, 2022).
A remand is recommended.
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Commissioner's decision should be reversed, and this case should be remanded for further proceedings under sentence four of section 405 (g) of the Social Security Act.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).