Opinion
23 Civ. 5553 (NSR)(JCM)
06-21-2024
ISABEL MARIE MARCANO, Plaintiff, v. MARTIN O'MALLEY,[1] Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
JUDITH C. MCCARTHY UNITED STATES MAGISTRATE JUDGE
To the Honorable Nelson S. Roman, United States District Judge:
Isabel Marie Marcano (“Plaintiff”) commenced this action on June 28, 2023, 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”) under the Social Security Act. (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. 11), accompanied by a memorandum of law, (Docket No. 12) (“Pl. Br.”); (2) the Commissioner's opposition to Plaintiff's motion, (Docket No. 13) (“Comm'r Br.”); and (3) Plaintiff's reply, (Docket No. 14) (“Pl. Reply”). For the reasons set forth herein, I respectfully recommend denying Plaintiff's motion, and granting the Commissioner's cross-motion.
Since the Commissioner “adopt[s] Plaintiff's recitation of the underlying proceedings . . . [and] recitation of the facts in this case, with the exception of any inferences, arguments or conclusions asserted therein,” (Comm'r Br. at 10), the Court limits the background facts to those necessary to resolve the instant dispute.
Plaintiff was born on May 20, 1978. (R.381). She applied for DIB and SSI on February 25, 2020, alleging a disability onset date of August 14, 2018. (Id.). Plaintiff's claim was initially denied on October 1, 2020. (R. 143-52). On November 16, 2020, Plaintiff requested reconsideration, (R. 153-54), and the claim was denied again on February 20, 2021, (R. 157-61). Plaintiff then requested an administrative hearing to review the denial of her claim. (R. 10, 18183). On November 10, 2021, Administrative Law Judge John Carlton (“ALJ Carlton”) held a hearing. (R. 32-67). ALJ Carlton issued a written decision on April 13, 2022, finding that Plaintiff was not disabled, and thus not entitled to DIB or SSI. (R. 7-28). Plaintiff requested review by the Appeals Council, which denied her request on May 12, 2023, (R. 1-6), making the ALJ's decision ripe for this Court's review.
Refers to the certified administrative record of proceedings relating to Plaintiff's application for social security benefits, filed in this action on June 28, 2023. (Docket Nos. 8, 8-1, 8-2, 8-3, 8-4, 8-5, 8-6, 8-7). All page number citations to the certified administrative record refer to the page number assigned by the Social Security Administration (“SSA”).
A. Medical Evidence
1. Montefiore Medical Center
On March 24, 2018, Plaintiff visited the emergency room at Montefiore Medical Center (“Montefiore”) complaining of epigastric, abdominal and chest pain, as well as nausea. (R. 429). Initially, doctors believed that Plaintiff's nausea was caused by peptic ulcer disease or marijuana hyperemesis syndrome, not gastritis. (R. 448). However, a biopsy performed on March 27, 2018, revealed that Plaintiff suffered from “chronic gastritis.” (R. 683).
2. Bronx Lebanon Hospital Center
On May 3, 2019, Plaintiff visited the Bronx Lebanon Hospital Center complaining of “bilateral ear pain, dry cough, [and wheezing]” because she ran out of her asthma medication. (R. 1515). Doctors diagnosed her with gastroesophageal reflux disease, dysuria and asthma exacerbation. (R. 1517) She was treated with a “GI cocktail,” and was discharged. (Id.).
3. New York-Presbyterian Hospital
On June 10, 2019, Plaintiff visited the New York-Presbyterian Hospital (“New York-Presbyterian”) with complaints of “chest pain and body aches.” (R. 730). Doctors treated her with a “GI cocktail.” (R. 736). Plaintiff went to New York-Presbyterian again on August 23, 2019, for treatment of “chest pain, nausea and back pain.” (R. 725). A radiologist examined Plaintiff, and found her lungs to be clear, with no pleural effusion or pneumothorax. (Id.).
On November 5, 2019, Plaintiff was seen in the Emergency Department of New York-Presbyterian for anxiety. (R. 770). She stated that she was not eating, smoked marijuana to increase her appetite, and used cocaine three months prior to her visit. (R. 771). Her asthma was diagnosed as severe, which was likely due to her smoking cigarettes and marijuana. (R. 772). On January 15, 2020, Plaintiff went back to New York-Presbyterian for a follow-up appointment. (R. 708-12). She told doctors that she no longer drinks, but smokes one to two packs of cigarettes and one-eighth of an ounce of marijuana every day. (R. 713).
On March 11, 2020, Plaintiff went to see Dr. Dylan Marshall, who specializes in internal medicine. (R. 813). Her chief complaint was weight loss, as she unintentionally lost “100 [pounds] over the past year.” (Id.). Plaintiff reported that she had not been going to job interviews due to nausea and stress, and her bills were “piling up.” (R. 814). She was still smoking five to six cigarettes per day, but had cut down on her marijuana use. (Id.). Dr. Marshall found that she had chills, nausea and vomiting, and was “nervous/anxious.” (Id.). However, he did not observe any shortness of breath, wheezing or chest pain. (Id.).
On May 21, 2020, Plaintiff saw Dr. Monika Laszkowska, complaining of weight loss, chronic abdominal pain, nausea, vomiting, rectal pain and dark stool. (R. 819). Plaintiff told Dr. Laszkowska that she smokes marijuana to “get food down.” (R. 820). Dr. Laszkowska ordered a colonoscopy, which was performed on July 1, 2020. (R. 825). The colonoscopy revealed that Plaintiff was suffering from H. pylori, as well as chronic active gastritis. (Id.). Three to four polyps were also removed from her colon during the procedure. (Id.). Plaintiff reported breathing better and having a stronger appetite after the procedure. (Id.).
4. New York Psychotherapy and Counseling Center
In addition to seeking treatment for her physical ailments, Plaintiff also attended therapy sessions for a “psychiatric/mental condition.” (R. 1073) (see generally R. 1073-221, 1396-422, 1442-513). On April 8, 2020, Plaintiff reported to her therapist that she was feeling anxious and stressed, and had crying spells and panic attacks. (R. 1038). She stated that she had poor energy levels and sleep disturbances, but noted that she had friends, a supportive mother, a good relationship with her kids, and enjoyed activities such as shopping. (Id.). Plaintiff was prescribed medication in May 2020, and her depression began to improve. (R. 1164). On October 19, 2020, Plaintiff “report[ed] all symptoms [were] adequately controlled by med[ication],” and that “[t]here were no reported changes in sleep; appetite; mood; stressors; and symptoms.” (R. 1212). She was fully compliant with her medication. (Id.). During one session, Plaintiff reported that she “believes the psychotropic medication makes her feel tired,” and she was “[un]able to sleep at night.” (R. 1216). Nevertheless, Plaintiff “reported feeling good” as her therapy sessions progressed. (R. 1215). In fact, from December 27, 2020 through October 18, 2021, Plaintiff reported that her symptoms were adequately controlled by medication, and that she did not have any “medication side effects.” (R. 1415); (see also 1421, 1447, 1454, 1463, 1472, 1480, 1488, 1501, 1506, 1512) (same).
5. State Agency Psychiatric Consultant: Dr. E. Kamin
On September 30, 2020, Dr. E. Kamin completed a Disability Determination Explanation form (“DDE”). (R. 69-78). In the DDE, Dr. Kamin opined that Plaintiff had a moderate limitation in her ability to concentrate, persist or maintain pace. (R. 73). Dr. Kamin also concluded that Plaintiff was moderately limited in her ability to understand and remember detailed instructions, perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. (R. 77). However, Dr. Kamin determined that Plaintiff was only mildly limited in her ability to interact with others, adapt or manage herself. (R. 73).
6. State Agency Psychiatric Consultant: Dr. L. Haus
On February 17, 2021, Dr. L. Haus examined Plaintiff. Dr. Haus opined that Plaintiff's “medically determinable impairments could have reasonably been expected to produce the alleged symptoms; however, [her] statements concerning the intensity, persistence and limiting effects of these symptoms are generally not consistent with the evidence of record.” (R. 108). Dr. Haus found that Plaintiff was “moderately limited” in her ability to carry out detailed instructions, maintain attention and concentration, complete a normal workday and workweek without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, and respond appropriately to changes in the work setting. (R. 111-15).
7. State Agency Consultants: Dr. K. Gallagher and Dr. S. Ahmed
On September 30, 2020, Dr. K. Gallagher reviewed the evidence in Plaintiff's file and found she had no employment limitations, except to avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, among other unidentified things. (R. 75-76). On February 17, 2021, Dr. S. Ahmed concurred with Dr. Gallagher and found that Plaintiff's impairments were “nonsevere ....” (R. 108-10).
8. Internal Medicine Consultative Examination: Dr. Saundra Nickens
The Division of Disability Determination referred Plaintiff to Dr. Saundra Nickens. (R. 839-43). On September 23, 2020, Dr. Nickens conducted an internal medical examination of Plaintiff. (R. 840). While Dr. Nickens found “no objective functional limitations,” she diagnosed Plaintiff with cachexia, anxiety and gastritis. (R. 843).
9. Psychiatric Consultative Examination: Dr. Joshua Goldstein
On September 23, 2020, Dr. Joshua Goldstein conducted a psychiatric evaluation of Plaintiff. (R. 844-49). Plaintiff was “cooperative” and “responsive[e] to [his] questions,” but displayed poor presentation, “manner of relating,” and social skills. (R. 846). Dr. Goldstein opined that Plaintiff was “[c]oherent and goal directed with no evidence of hallucinations, delusions, or paranoia in the evaluation setting.” (Id.). He found her depressed, which impaired her attention. (R. 846-47). Dr. Goldstein noted that Plaintiff “was able to do simple counting, [but] could not do simple calculations, and could not complete serial 7s from 100 nor serial 3s from 20.” (R. 847). He also found “mild evidence of limitation understanding, remembering, or applying simple [or complex] directions and instructions,” “using reason and judgment to make work related decisions,” “sustaining concentration and performing a task at a consistent pace,” and “being aware of normal hazards and taking appropriate precautions.” (R. 847-48). Dr. Goldstein also observed “[m]oderate evidence of limitation interacting adequately with supervisors, co-workers, and the public,” “sustaining an ordinary routine and regular attendance at work,” and “regulating emotions, controlling behavior, and maintaining well-being.” (Id.). He diagnosed her with recurrent, severe major depressive disorder and posttraumatic stress disorder. (R. 848). Dr. Goldstein concluded that these psychiatric problems “may significantly interfere with [her] ability to function on a daily basis.” (Id.).
B. Nonmedical Evidence
1. Plaintiff's Testimony
Plaintiff testified at the hearing before ALJ Carlton. She stated that she last worked in 2018, when she was self-employed as a hairdresser. (R. 38-40). Prior to that, she had a job serving food in a nursing home, but quit because of her “anxiety, throwing up, [and] depression.” (R. 38, 40). She also reported that before working in the nursing home she was a cashier. (R. 43). Plaintiff testified that her physical and mental ailments affect her daily life. She claimed that her depression and “sickness” caused her to lose weight, and that she vomits due to a combination of physical and mental issues. (R. 45-46). Plaintiff testified that she loses concentration frequently and suffers from flashbacks and nightmares that cause insomnia, which are treated with prescription sedatives. (R. 47). However, Plaintiff complained that the sedatives have side-effects, including issues “in [her] legs” and “mood swings.” (Id.). While she could not name an instance in which she had done so, she testified that she “sometimes” gets irritable and snaps at people. (Id.). Plaintiff further testified that she is unable to cook for herself, but gave inconsistent explanations for why, first saying it was due only to concentration issues, and later adding that she cannot lift “the foods or the pots.” (R. 49). Plaintiff claimed that Dr. Marshall told her this was due to a bone deficiency. (Id.).
Plaintiff lives with her teenage sons, brother, and mother, and testified that her teenage sons “have to help” her cook, clean and shop. (R. 44-45). She claimed that she only leaves the apartment twice a month, and does not take public transportation as it triggers her anxiety. (R. 45). Instead, she uses a taxi to get around. (Id.). Plaintiff explained that she suffers from crying spells “[p]ractically every day,” (id.), and “isolate[s] most of the day” by hiding in the bathtub for several hours “every day,” (R. 56).
Plaintiff's testimony was inconsistent at times. Plaintiff initially said that she always took her medication according to doctor's instructions. (R. 53-54). However, when the ALJ presented her with evidence to the contrary, Plaintiff admitted that “[s]ometimes I will forget to take them or I think when that happen[s] I must taste my pills sometimes.” (R. 54-55). Plaintiff also admitted to periodically missing doctor's appointments. She claimed her absences were from the sedative she was taking for insomnia, but conceded that she never told her doctors about this side effect. (R. 53).
2. Vocational Expert Esperanza Distefano's Testimony
Esperanza Distefano, a vocational expert (“VE”), testified at Plaintiff's hearing. She identified Plaintiff's prior jobs as a hairdresser, cafeteria manager and cashier. (R. 58-59). The VE determined that each of these jobs required light or medium exertion, were skilled or semiskilled, and required a specific vocational preparation (“SVP”) between three and seven. (Id.). The ALJ then posed this hypothetical:
the hypothetical individual is of the same age, education and vocational background as this claimant, however, assum[e] [that the] individual has the following limitations. Assume they're limited to light work, they cannot work on ladders, ropes or scaffolds, they cannot work at unprotected heights or around dangerous machinery, they must work indoors in temperature controlled environment with no exposure to excessive gases, fumes, odors, dust, cold, heat, humidity or other pulmonary irritants, would be able to work at what one typically, work in the environment one would typically expect in an office environment, individual is
limited to simple, routine work that is not done at a production rate pace, the individual is limited to work that requires no more than occasional interactions with supervisors and coworkers and is limited to work that requires no more than brief superficial interactions with the general public with such interactions not a part of the general job duties. Based on that, those limitations would that individual be able to do any of the past work that was done by the claimant?(R. 58-59). The VE answered “[n]o,” (R. 59), but stated that such an individual would be able to perform: (1) the job of a marker, DOT code 209.587-034, which is a light exertion, unskilled position with an SVP of 2, of which there are 131,000 positions nationally, (R. 60); (2) the job of a router, DOT code 222.587-038, which is a light exertion, unskilled position with an SVP of 2, of which there are 31,000 positions nationally, (id.); or (3) the job of an assembler of small products, which is DOT code 706.684-022, and is a light exertion, unskilled position with an SVP of 2, of which there are 19,700 positions nationally, (id.). The VE testified that this list was “representative,” and not “exhaustive.” (Id.).
ALJ Carlton then asked how many hours an employee in one of these positions would be expected to be “on task” outside of the typical “40-hour workweek, eight hours a day five days a week with a 30-minute meal break . . . and two 15-minute breaks.” (R. 60). In response, the VE testified that “[m]ost employers will tolerate 10% off task,” but “will not tolerate 20% off task.” (R. 60-61). However, she explained that, in her opinion, “if an individual is off task 15% of the time there would be at least a 50% erosion,” and that, “[o]ff task behavior is not an exact science.” (R. 62). The VE also testified that “[m]ost employers have an absentee policy that will permit an individual to be absent from work one day per month without having it impact [] their ability to maintain employment,” but if the employee is absent more than one day per month, they “would not be able to maintain employment.” (Id.). The VE stated that an employee who interacts improperly with her supervisors will receive a “corrective action plan, and if the individual does not respond appropriately to the correct[ive] action plan then it is likely [they] would lose their employment.” (R. 64-65).
C. The ALJ's Decision
On April 13, 2022, ALJ Carlton denied Plaintiff's application. He determined that she met the insured status requirements of the Social Security Act (“Act”) through December 31, 2023. (R. 12). Using the five-step procedure promulgated by the Commissioner, ALJ Carlton then evaluated Plaintiff's disability claims. At step one, he found that Plaintiff “has not engaged in substantial[ly] gainful activity since August 14, 2018.” (Id.). At step two, ALJ Carlton found that Plaintiff suffers severe impairments of “H. Pylori, gastritis, asthma, a major depressive disorder and cannabis use disorder.” (Id.).
At step three, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). He determined that Plaintiff had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that she could not climb ladders, ropes or scaffolds, work at unprotected heights or around dangerous machinery, and that she must work indoors in a temperature controlled environment with no exposure to excessive gases, fumes, odors, dust, cold, heat, humidity, pollen or other pulmonary irritants. (R. 14-15). The ALJ found that Plaintiff “would be able to work in what one would expect in an office environment,” but is limited to “simple and routine work that is not done at a production rate pace.” (R. 15). In making this determination, the ALJ “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 C.F.R. §§ 404.1529, 416.929 and SSR 16-3p.” (Id.) (cleaned up). He “also considered the medical opinions and prior administrative medical findings in accordance with the requirements of 20 C.F.R. §§ 404.1520c and 416.920c.” (Id.) (cleaned up).
Next, the ALJ examined Plaintiff's treatment notes, and found that Plaintiff's testimony was “not entirely consistent” with the contemporaneous records he reviewed. (R. 16-18). He noted that while Plaintiff claims she missed therapy appointments due to side effects from her prescription sedatives, she “never told this to her doctors,” and “[m]any, if not most, of the missed appointments occurred in the afternoon.” (R. 18). In addition, “[o]nce treatment was underway, [Plaintiff] did improve,” and by “August 2020, the notes stated that [Plaintiff's] symptoms were adequately controlled by medications with no side effects.” (R. 19). As Plaintiff progressed through treatment, ALJ Carlton found that “th[]e treatment records indicated that [Plaintiff] was doing relatively well,” and, “[i]n fact, it was not until September 2021 after missed appointments that [she] stated that she was not sleeping well . . . [and] that her symptoms were not controlled.” (R. 19-20). Nevertheless, when Plaintiff resumed treatment at her next appointment she “was prescribed Remeron,” and at the following appointment she reported that “her symptoms were adequately controlled.” (R. 20). While ALJ Carlton acknowledged that Plaintiff “still had some remaining depression and anxiety,” he accounted for this by “restrict[ing] her to doing simple tasks in a low stress job.” (Id.).
ALJ Carlton did not find Dr. Nickens' opinion, that Plaintiff had no functional limitations, persuasive. (R. 20). Nor was he convinced that that Plaintiff had moderate limitations in “interacting with others,” as described by Dr. Goldstein, because that opinion was based on Plaintiff's self-reports that were inconsistent with her treatment records, which indicated “she visited her grandchild twice a week [and had] a boyfriend and friends.” (R. 21).
However, he did find there was support in the record for Dr. Goldstein's opinion that Plaintiff had “moderate limitations for . . . sustaining an ordinary routine and regulat[ing] attendance,” and addressed it “by limit[ing] [her] to simple work that is not done at a production rate pace.” (Id.).
At step four, the ALJ found that Plaintiff “is unable to perform any past relevant work” as a hairdresser, cafeteria manager or cashier. (R. 21-22) (citing 20 C.F.R. §§ 404.1565, 416.965). At step five, considering Plaintiff's “age, education, work experience, and residual functional capacity,” the ALJ found that “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform,” (R. 22), and, thus, Plaintiff “has not been under a disability . . . from August 14, 2018, through the date of this decision,” (R. 23).
II. DISCUSSION
Plaintiff argues that the ALJ's decision should be reversed and remanded for further administrative proceedings because: (1) the ALJ failed to consider the number of monthly absences and time off-task Plaintiff would experience as a result of her impairments; and (2) the VE's testimony did not constitute substantial evidence. (Pl. Br. at 20-29). The Commissioner maintains that: (1) the ALJ's RFC finding was correct because Plaintiff has not shown that she would have excessive absences or time off-task; and (2) the ALJ's five-step finding was based on substantial evidence. (Comm'r Br. at 14-23).
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) (per curiam) (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) (per curiam).
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) (per curiam) (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, “even more so than the clearly erroneous standard.” Brault, 683 F.3d at 448 (internal quotations and citation omitted). 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 were not applied and “might have affected the disposition of the case, th[e] 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.
On January 18, 2017, the SSA considerably revised its regulations for evaluating medical evidence. The rules went into effect on March 27, 2017, and therefore apply to the instant case. Under the new regulations, the treating physician rule no longer applies. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Therefore, no special deference is given to the treating physician's opinion. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, “[the Commissioner] will articulate in [his] determination or decision how persuasive [h]e find[s] all of the medical opinions.” 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The updated regulations also define a “medical opinion” as “a statement from a medical source about what [the claimant] can still do despite [their] impairment(s) and whether [they] have one or more impairment-related limitations or restrictions in” their “ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling or other physical functions ....” 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). Thus, a medical opinion must discuss both a claimant's limitations and “what [the claimant] is still capable of doing” despite those limitations. Michael H. v. Saul, 5:20-CV-417 (MAD), 2021 WL 2358257, at *6 (N.D.N.Y. June 9, 2021). Relatedly, conclusory statements by a claimant's provider concerning issues reserved to the Commissioner - for instance, whether the claimant is disabled under the Act - are “inherently neither valuable nor persuasive” and will not be analyzed by the ALJ. 20 C.F.R. §§ 404.1520b(c), 416.920b(c).
B. The ALJ's Duty to Develop the Record
As a threshold matter, 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, 19-CV-1539 (AT)(JLC), 2020 WL 2212404, at *9 (S.D.N.Y. May 7, 2020) (“Whether the ALJ has satisfied this duty to develop the record is a threshold question.”). “[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) (summary order). “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) (summary order).
Here, the Court finds no obvious gaps in the record. There are hundreds of pages of medical records, (383-805, 812-38), treatment records, (R. 806-11, 850-920, 1001-72, 1222-314, 1423-513), Plaintiff's functional report, (R. 68-94, 97-140), medical opinions from consultative examiners, (839-49), and the hearing record, (R. 32-67). Moreover, at the hearing, Plaintiff's counsel noted that there is nothing missing from the record, and that Plaintiff did not have any objections to the list of exhibits. (R. 36); see Jordan v. Comm'r of Soc. Sec., 142 Fed.Appx. 542, 543 (2d Cir. 2005) (finding that the ALJ fulfilled his duty to develop the record where counsel had “nothing further to add,” and did not request the ALJ's help in obtaining additional documents). Accordingly, the Court concludes and respectfully recommends finding that the ALJ fulfilled his duty to develop the record.
C. The ALJ's Analysis of the VE's Testimony
Plaintiff argues that ALJ Carlton “failed to include all of plaintiff's limitations in his hypothetical to the VE” and the RFC. (Pl. Br. at 24). Specifically, Plaintiff argues that: (1) the ALJ's hypothetical did not include his findings of Plaintiff's “moderate limitations in understanding, remembering, or applying information and adapting or managing oneself;” and (2) the ALJ “failed to provide an accommodation for his finding that plaintiff had moderate limitations in adapting or managing oneself.” (Pl. Br. at 24-25). In response, Defendant contends that Plaintiff “merely restates her disagreement with the ALJ's RFC,” which “fail[s] under the substantial evidence standard of review.” (Comm'r Br. at 23).
1. The Hypothetical
Plaintiff's argument that the ALJ's hypothetical improperly omitted Plaintiff's cognitive and interpersonal limitations that he ultimately included in his RFC is without merit. The RFC is “what a claimant can still do in a work setting despite physical and/or mental limitations caused by impairments and any related symptoms, such as pain.” Traufler v. Astrue, No. 7:11-1089, 2012 WL 7753772, at *3 (N.D.N.Y. Nov. 30, 2012) (citing 20 C.F.R. §§ 404.1545, 416.945(a)), report and recommendation adopted, 2013 WL 1092124 (N.D.N.Y. Mar. 15, 2013); see also Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). “[T]he RFC assessment must include a discussion of the individual's abilities on that basis.” Melville, 198 F.3d at 52 (quoting SSR 968P, 1996 WL 374184, at *2 (July 2, 1996)) (internal quotations omitted).
“Before an ALJ classifies a claimant's RFC based on exertional levels of work (i.e., whether the claimant can perform sedentary, light, medium, heavy, or very heavy work), he [or] [she] must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis . . . .” Cichocki, 729 F.3d at 176 (citing SSR 96-8P, 1996 WL 374184, at *1) (internal quotations omitted). Such an assessment should discuss “physical abilities (e.g., sitting, standing, walking, lifting, carrying, pushing, pulling) and other manipulative or postural functions (e.g., reaching, handling, stooping, or crouching) that may reduce a claimant's ability to do past work and other work.” See Lanza v. Berryhill, No. 19 Civ. 6783 (AT) (RWL), 2020 WL 5606845, at *18 (S.D.N.Y. Aug. 27, 2020) (citing 20 C.F.R. § 404.1545(b); SSR 96-8P, 1996 WL 374184, at *5-6), report and recommendation adopted, 2020 WL 5603551 (S.D.N.Y. Sept. 18, 2020). “Each function must be considered separately (e.g., the individual can walk for 5 out of 8 hours and stand for 6 out of 8 hours), even if the final RFC assessment will combine activities (e.g., walk/stand, lift/carry, push/pull).” SSR 96-8P, 1996 WL 374184, at *5-6 (internal quotations omitted). “[T]he RFC assessment must also include a narrative discussion, describing how the evidence supports the ALJ's conclusions, citing specific medical facts, and non-medical evidence.” Glessing v. Comm 'r of Soc. Sec., No. 13 Civ. 1254 (BMC), 2014 WL 1599944, at *9 (E.D.N.Y. Apr. 21, 2014) (quoting Wichelns v. Comm r of Soc. Sec., No. 5:12-CV-1595 (NAM/ATB), 2014 WL 1311564, at *6 (N.D.N.Y. Mar. 31, 2014)) (internal quotations omitted).
Although an explicit function-by-function assessment is not always required, “[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” Cichocki, 729 F.3d at 177. This is because “a failure to first make a function-by-function assessment of the individual's limitations or restrictions could result in the adjudicator overlooking some of an individual's limitations or restrictions, which could lead to an incorrect use of an exertional category to . . . an erroneous finding that the individual is not disabled.” Id. at 176 (quoting SSR 96-8P, 1996 WL 374184, at *4) (internal quotations omitted).
Here, while the ALJ did not perform a function-by-function analysis, “failure explicitly to engage in such . . . analysis does not constitute a per se error requiring remand.” Cichocki, 729 F.3d at 173-74. Indeed, Plaintiff's argument “ignores the entirety of the ALJ's decision, in which he reviews [Plaintiff's] abilities and the medical records to determine her RFC.” Cruz v. Astrue, 941 F.Supp.2d 483, 499 (S.D.N.Y. 2013). The ALJ's hypothetical implicitly referenced Plaintiff's limitations:
Assume [the individual] is limited to light work, [and the] individual is limited to simple, routine work that is not done at a production rate pace, the individual is limited to work that requires no more than occasional interactions with supervisors and coworkers and is limited to work that requires no more than brief superficial interactions with the general public with such interactions not a part of the general job duties.(R. 58-59) (emphasis added). Contrary to Plaintiff's argument, there is no requirement that the ALJ provide a word-for-word recitation of his RFC findings in his hypothetical to the VE for the hypothetical to be permissible. Rather, the hypothetical must “include a complete picture of a plaintiff's abilities so that the vocational expert can accurately determine whether the plaintiff could engage in certain vocations.” Day v. Astrue, No. 09-131 (DRH), 2011 WL 1467652, at *16 (E.D.N.Y. Apr. 8, 2011) (cleaned up). That is exactly what the ALJ did here. His hypothetical limited Plaintiff to light work, and required the VE to identify jobs involving simple, routine work, that required only limited interaction with others. (R. 58-59). “[A] hypothetical need not frame the claimant's impairments in the specific diagnostic terms used in the medical reports, but instead should capture the concrete consequences of those impairments.” Calabrese v. Astrue, 358 Fed.Appx. 274, 277 (2d Cir. 2009) (internal quotations and citation omitted). Thus, the ALJ's hypothetical sufficiently accounted for Plaintiff's “limitations in understanding, remembering, or applying information,” (Pl. Br. at 25), otherwise there would be little reason to confine her employment possibilities so narrowly, see, e.g., Moss v. Comm'r of Soc. Sec., No. 21 CIV. 01352 (JCM), 2022 WL 4365349, at *17 (S.D.N.Y. Sept. 20, 2022) (limiting plaintiff to “simple, routine work at a low-stress job” “sufficiently accounted for [his] moderate limitation in concentrating, persisting or maintaining pace”).
Indeed, the consequences of Plaintiff's cognitive and interpersonal impairments are that she is limited to jobs that only require light work, and limited interaction with others. Each job listed by the VE has an SVP of 2, and “[c]ourts in this Circuit agree that scores of SVP-2 assigned to the representative occupations by the DOT are consistent with the ability to perform simple, low-stress, unskilled work.” Napolitano v. Kijakazi, No. 21-CV-10470 (JLC), 2023 WL 3185511, at *17 (S.D.N.Y. May 2, 2023) (internal quotations and citation omitted); see also Haiss v. Berryhill, No. 17CV8083 (VB)(LMS), 2019 WL 3738624, at *11 (S.D.N.Y. May 15, 2019) (“[A] growing number of courts have held that jobs with DOT reasoning levels of two or three are compatible with limitations to simple, routine work.”) (collecting cases), report and recommendation adopted sub nom. Haiss v. Comm'r of Soc. Sec., 2019 WL 5690712 (S.D.N.Y. Nov. 4, 2019). Thus, the ALJ's hypothetical was not improper.
Even assuming, arguendo, that the ALJ's hypothetical was inadequate, that error does not warrant remanding the case for further proceedings. “[A]n ALJ's failure to incorporate non-exertional limitations in a hypothetical (that is otherwise supported by evidence in the record) is harmless error if (1) medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace, and the challenged hypothetical is limited to include only unskilled work; or (2) the hypothetical otherwise implicitly accounted for a claimant's limitations in concentration, persistence, and pace.” McIntyre v. Colvin, 758 F.3d 146, 152 (2d Cir. 2014) (internal quotations and citation omitted) (cleaned up). Here, there is substantial evidence in the record that Plaintiff can engage in simple, routine tasks, or unskilled work, specifically: (1) the treatment notes “consistently indicated” that “her symptoms were largely controlled by the medications, which also had produced no reported side effect,” (R. 20); (2) Plaintiff was able to “follow[] instructions well,” “pa[y] bills and manage[] bank accounts,” and engaged in some leisurely activities, included reading, (R. 18); and (3) Plaintiff had an active social life, (id.). Moreover, the ALJ's hypothetical was expressly limited to “simple” jobs that only required minimal communication with others. (R. 59-60). Therefore, even if the ALJ's hypothetical was too narrow, such error would be harmless.
2. The Accommodations Provided
Plaintiff's argument that the ALJ should have provided accommodations for his finding in the RFC that Plaintiff had “moderate limitations in adapting or managing” herself, (Pl. Br. at 24-25), is similarly unavailing. As an initial matter, the ALJ provided accommodations for Plaintiff's mental infirmities. He found that she could only engage in “simple, routine work” that required little interpersonal interaction, and would be performed at a reduced pace. (R. 5859). Where “the ALJ ultimately quite clearly considered the plaintiff's need for certain work-related accommodations . . . and subsequently formulated the plaintiff's RFC with those accommodations in mind,” he sufficiently incorporated the necessary accommodations into Plaintiff's RFC. Alexander, P.L. v. Kijakazi, No. 3:22-CV-01487 (MPS)(RMS), 2023 WL 7317629, at *10 (D. Conn. Nov. 7, 2023) (citing Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)); see also Pichardo v. Comm'r of Soc. Sec., No. 21-CV-06873 (SDA), 2023 WL 2596970, at *19 (S.D.N.Y. Mar. 22, 2023) (holding that the ALJ “accounted for [mental] limitations by limiting [the Plaintiff] to simple routine work with only occasional interactions with others and not working in tandem with others”).
In addition, Plaintiff's statements about how difficult it was to manage herself is belied by the record. The ALJ noted that treatment notes “consistently indicated” that “her symptoms were largely controlled by medication, which also had produced no reported side effect[s].” (R. 20). In fact, Plaintiff was able to “follow[] instructions well,” “pa[y] bills and manage[] bank accounts,” and engage in leisurely activities. (Id.). Thus, while the ALJ found Plaintiff had moderate limitations in managing herself, he ultimately concluded that medication helped control these symptoms, and explained that he further “addressed [them] . . . by limiting her to simple work that is not done at a production rate pace.” (R. 21). Therefore, the ALJ “reasonably concluded, based on the treatment records and expert testimony, that no further restrictions in the RFC were warranted.” Pichardo, 2023 WL 2596970, at *18.
Accordingly, the Court concludes and respectfully recommends finding that the ALJ sufficiently accounted for Plaintiff's limitations in his hypothetical to the VE and in the RFC.
D. The ALJ's RFC Determination is Supported by Substantial Evidence 1. Severity of Plaintiff's Limitations
Plaintiff argues that the ALJ “should have found that plaintiff had at least marked limitations in managing and adapting” herself because he failed to consider her “history of panic attacks, [and] crying spells.” (Pl. Br. at 26). In response, the Commissioner contends that this argument is unsupported by the record. (Comm'r Br. at 21).
When evaluating mental impairments, the ALJ must use a “special technique” which requires that the ALJ first evaluate the claimant's “pertinent symptoms, signs, and laboratory findings to determine whether” the claimant has a medically determinable mental impairment. 20 C.F.R. § 404.1520a(b)(1). If a medically determinable mental impairment is found, the ALJ “must specify the symptoms, signs, and laboratory findings that substantiate the presence of the impairment(s) and document” the findings. Id. The regulations provide that “[s]igns must be shown by medically acceptable clinical diagnostic techniques” and define psychiatric signs to mean “medically demonstrable phenomena that indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought, memory, orientation, development, or perception, and must also be shown by observable facts that can be medically described and evaluated.” 20 C.F.R. § 404.1502(g).
Thereafter, the ALJ must rate the degree of functional limitation resulting from the impairments and record the finding. 20 C.F.R. § 404.1520a(b)(2). In rating the degree of functional limitation, the ALJ “will consider all relevant and available clinical signs and laboratory findings, the effects of [the claimant's] symptoms, and how [his or her] functioning may be affected by factors including, but not limited to, chronic mental disorders, structured settings, medication, and other treatment.” 20 C.F.R. § 404.1520a(c)(1). Moreover, the ALJ must “rate the degree of [the claimant's] functional limitation based on the extent to which [claimant's] impairment(s) interferes with [his or her] ability to function independently, appropriately, effectively, and on a sustained basis,” and “will consider such factors as the quality and level of [the claimant's] overall functional performance, any episodic limitations, the amount of supervision or assistance [the claimant] require[s], and the settings in which [the claimant [is] able to function.” 20 C.F.R. § 404.1520a(c)(2). The four broad areas in which the degree of functional limitation is rated are: (i) understanding, remembering, or applying information; (ii) interacting with others; (iii) concentrating, persisting, or maintaining pace; and (iv) adapting or managing oneself. 20 C.F.R. § 404.1520a(c)(3). In rating degrees of limitation in these areas, a five-point scale is used: none, mild, moderate, marked, and extreme. 20 C.F.R. § 404.1520a(c)(4). “If [the ALJ] rate[s] the degrees of [the claimant's] limitation as ‘none' or ‘mild,' [the ALJ] will generally conclude that [claimant's] impairment(s) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in [claimant's] ability to do basic work activities.” 20 C.F.R. § 404.1520a(d)(1).
“The claimant bears the burden of presenting evidence establishing severity.” Taylor v. Astrue, 32 F.Supp.3d 253, 265 (N.D.N.Y. 2012). In the Second Circuit, a severity inquiry serves only to “screen out de minimis claims.” Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). Consequently, “[a] finding of ‘not severe' should be made if the medical evidence establishes only a ‘slight abnormality' [with] ‘no more than a minimal effect on an individual's ability to work.'” Rosario v. Apfel, No. 97-CV-5759, 1999 WL 294727, at *5 (E.D.N.Y. Mar. 19, 1999) (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n.12 (1987)). Despite this lenient standard, however, “mere presence of a disease or impairment, or establishing that a person has been diagnosed or treated for a disease or impairment, is not, by itself, sufficient to render a condition ‘severe.'” Lau v. Comm'r of Soc. Sec., 339 F.Supp.3d 421, 428 (S.D.N.Y. 2018) (quoting Taylor, 32 F.Supp.3d at 265).
Here, ALJ Carlton noted that Plaintiff “testified that she only left her house twice a month,” “had daily crying spells, did not socialize and isolated at home and had difficulty concentrating and had a poor memory.” (R. 18). However, he did not find this testimony “consistent with her treatment records, which also indicate[d] that she visited her grandchild twice a week as well as reference[d] [that she had] a boyfriend and friends.” (R. 21) (citing R. 1467). While Plaintiff argues that Dr. Goldstein's opinion supported a more significant limitation, ALJ Carlton specifically found that Dr. Goldstein's opinion was only supported by Plaintiff's self-reports, which were contradicted by the treatment records. (R. 21). The treatment records reflect that Plaintiff “had company at her house,” (R. 941), “has friends,” a “supportive” mother, “a good relationship with her kids,” (R. 1070), and visited family members, including her aunt, (R. 1407). Since “[a] lack of supporting evidence on a matter where the claimant bears the burden of proof, particularly when coupled with other inconsistent record evidence, can constitute substantial evidence,” the ALJ's determination that Plaintiff only had moderate limitations in managing and adapting herself was not in error. Reynolds v. Colvin, 570 Fed.Appx. 45, 46 (2d Cir. 2014). Furthermore, the ALJ's decision “was not an act of impermissible cherrypicking,” as he “explained that a portion of [Dr. Goldstein's] opinion was unpersuasive because it is inconsistent with the totality of the medical evidence of record.” Vecchio v. Comm'r of Soc. Sec., No. 20 Civ. 8105 (MKV) (SLC), 2021 WL 8013772, at *15 (S.D.N.Y. Dec. 1, 2021) (internal quotations and citation omitted) report and recommendation adopted, 2022 WL 873175 (S.D.N.Y. Mar. 24, 2022). Therefore, Plaintiff's argument essentially challenges how the ALJ weighed the evidence, which the Court cannot review. Friedly v. Comm'r of Soc. Sec., No. 19-CV-486S, 2020 WL 2476489, at *4 (W.D.N.Y. May 13, 2020) (“[O]n judicial review this Court cannot reweigh the evidence or substitute its own judgment for that of the Commissioner.”) (citing Krull v. Colvin, 669 Fed.Appx. 31 (2d Cir. 2016)).
The same is true for Plaintiff's argument that ALJ Carlton erroneously found that her moderate limitations in understanding, remembering and applying information were adequately controlled by medication. Plaintiff argues that the ALJ's decision failed to consider Dr. Goldstein's finding that Plaintiff was unable to “do simple calculations.” (Pl. Br. at 27). However, in finding that Plaintiff suffered a moderate limitation in her ability to understand, remember, and apply information, the ALJ took Dr. Goldstein's opinion into consideration, (R. 13-14), and relied on the same piece of evidence on which Plaintiff relies-Plaintiff's inability “perform even serial 3s,” (R. 21). ALJ Carlton rejected Dr. Goldstein's opinion that Plaintiff had only a mild limitation in understanding, remembering and applying information, “because the overall evidence shows [Plaintiff] to be more limited.” (R. 21). In this situation, “[w]here an ALJ makes an RFC assessment that is more restrictive than the medical opinions of record, it is generally not a basis for remand.” Barone v. Comm'r of Soc. Sec., 2020 WL 3989350, at *4 (W.D.N.Y. July 15, 2020) (internal quotation and citation omitted) (alterations in original); see also Shorter v. Comm'r of Soc. Sec., No. 5:12-CV-1502 NAM/ATB, 2014 WL 1280459, at *10 (N.D.N.Y. Mar. 27, 2014) (“In light of the other substantial evidence in the record supporting the ALJ's RFC determination and the fact that the RFC determination is actually more restrictive than [one doctor's] assessment, any error in considering this report was harmless.”). Since ALJ Carlton did consider Plaintiff's inability to perform simple calculations, and accounted for it in the RFC, Plaintiff's argument is meritless.
2. Consideration of Plaintiff's Monthly Absences and Time Off-Task
Plaintiff argues that ALJ Carlton erred by “failing to consider the amount of monthly absences and time off-task that plaintiff will have as a result of her impairments and treatment.” (Pl. Br. at 12). Specifically, Plaintiff faults the ALJ for not reconciling the opinions of Dr. Goldstein, Dr. Haus, and Dr. Kamin, that Plaintiff is moderately limited in her ability to “attend[] to a routine,” (id. at 20-22), with the VE's testimony that an individual cannot be absent more than one day per month or off-task more than 20% of the time, (id. at 22-24). In response, the Commissioner maintains that: (1) “no doctor opined that Plaintiff would experience monthly absences or be off task to any specific degree,” (Comm'r. Br. at 20); (2) “Plaintiff could perform simple, routine work that is not done at a production rate pace” consistent with the ALJ's moderate limitations, (id.); (3) Plaintiff's argument is not entirely consistent with the evidence, (id. at 21); and (4) the ALJ “need not mention every piece of evidence or explain all of his reasoning,” (id. at 23).
Failure to address expected absences can constitute legal error. See Iglesias-Serrano v. Colvin, 16 Civ. 418, 2016 WL 7441697, at *8 (S.D.N.Y. Dec. 23, 2016). However, this only applies if the record shows that Plaintiff's impairments cause a limitation in which she would be absent from work a certain number of days per month. See id. at *7-8 (describing, at length, the extensive support in the record for plaintiff's inability to work without several absences per month); see also Gallagher v. Astrue, No. 10 Civ. 8338(LTS)(AJP), 2012 WL 987505, at *22 (S.D.N.Y. Mar. 22, 2012) (finding the ALJ's failure to address absences was an error when the ALJ had found persuasive the treating physician's opinion that Plaintiff would miss work three times per month). However, even where the ALJ must address absences, he “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.'” Colbert v. Comm'r of Soc. Sec., 313 F.Supp.3d 562, 580 (S.D.N.Y. 2019) (quoting Cichocki v. Astrue, 534 Fed.Appx. 71, 76 (2d Cir. 2013)).
Moreover, even where “[i]t may have been helpful if the ALJ made a more explicit finding regarding [the claimant's] likely frequency of absence and time off task,” so long as the ALJ “provides ‘an adequate roadmap of his reasoning'” his RFC will be upheld. Taylor v. Comm'r of Soc. Sec., No. 21-CV-182 (KAM), 2024 WL 88244, at *8 (E.D.N.Y. Jan. 9, 2024) (quoting Rivera v. Astrue, No. 10-cv-4324 (RJD), 2012 WL 3614323, at *8 (E.D.N.Y. Aug. 21, 2012)).
Here, the ALJ noted that Dr. Goldstein found that Plaintiff “had moderate limitations for interacting with others, sustaining an ordinary routine and regular attendance.” (R. 20). Dr. Haus and Dr. Kamin gave similar testimony. (Id.). However, ALJ Carlton found that that these opinions were only generally persuasive, “because the treatment notes indicated that [Plaintiff's] symptoms were adequately controlled by medications and that she felt okay.” (R. 13-14) (citing R. 937, 945, 950, 954, 957, 959, 1415, 1418, 1421, 1447, 1454, 1463). In addition, Plaintiff's medical records indicate that her “concentration at times was noted to be good and her mood euthymic.” (R. 14) (citing R. 944) (noting Plaintiff's “mood and affect” were “euthymic,” and that she was “alert and oriented,” with “good” attention and “concentration” while she was taking medication) (cleaned up). Thus, ALJ Carlton found that the medical evidence supported a finding that Plaintiff only had a moderate limitation in her concentration and attending to a routine, because her medication sufficiently controlled her symptoms. See Scott v. Colvin, No. 13-CV-6277 MAT, 2014 WL 2818668, at *9 (W.D.N.Y. June 23, 2014) (upholding an RFC determination where “the evidence in the record showed that Plaintiff's mental health treatment . . . was managed with medication and therapy”).
Furthermore, ALJ Carlton considered, but rejected “[Dr. Goldstein's] opinion with respect to [Plaintiff's] ability to interact with others . . . because those limitations appear to be based on [her] self reports,” which “were not consistent with her treatment records.” (R. 21). ALJ Carlton found that the treatment records reflect that Plaintiff frequently interacted with others without issue. (Id.) (citing R. 1467) (Plaintiff visited her granddaughter twice a week); (see also R. 1070) (noting that Plaintiff “has friends,” a “supportive” mother, and “a good relationship with her kids”). As to Plaintiff's testimony regarding her missed appointments, ALJ Carlton considered the claim, but found it to be unreliable since: (1) “she never told this to her doctors;” (2) most of the missed appointments occurred in the afternoon; (3) Plaintiff “was not entirely forthcoming with respect to her marijuana use,” which can also cause drowsiness; and (4) her medical records indicate that she was not taking her medications consistently as prescribed. (R. 18) (citing R. 939, 948, 949, 961, 970, 971, 973-75). In addition, ALJ Carlton relied on treatment notes which indicated that Plaintiff was generally improving and doing “good” to support his finding. (R. 19). Although the Court will not accept “an unreasoned rejection of all the medical evidence in a claimant's favor,” Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983), “[w]here the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, we will not substitute our judgment for that of the Commissioner,” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
Finally, Plaintiff's argument that the ALJ failed to reconcile her potential absenteeism and time off-task with the VE's testimony regarding attendance and attention requirements to maintain employment lacks merit. First, ALJ Carlton incorporated Plaintiff's moderate limitation in her RFC, (R. 14), by limiting her potential employment “to simple and routine work that is not done at a production rate pace,” (R. 15); (see also R. 21) (concluding that Plaintiff's moderate limitations were “addressed . . . by limit[ing] her to simple work that is not done at a production rate pace”). While the VE testified that “most employers will not tolerate 20% off task,” or more than one absence per month, ALJ Carlton specifically determined that Plaintiff could still work since her symptoms were: (1) “largely controlled by medications;” and (2) not so severe that she could not complete work done slower than the production rate pace. (R. 21).
Thus, any potential tension was resolved by the ALJ since he accounted “for any such absence or time-off-task limitations by restricting [Plaintiff] to simple, routine work [and] work not done at a production rate pace.” Taylor v. Comm'r of Soc. Sec., No. 21-CV-182 (KAM), 2024 WL 88244, at *8 (E.D.N.Y. Jan. 9, 2024).
Additionally, “[t]he law does not require . . . that the ALJ [] expressly analyze this issue whenever a VE testifies to a maximum tolerable absentee rate or off-task allowance, or whenever a claimant has ‘moderate' limitations in a broad functional area such as sustaining concentration, performance, and pace” as “those limitations may be accounted for by restricting the plaintiff to simple, routine work and/or work not done at a production rate pace.” Reece v. Kijakazi, No. 22-CV-674 (BCM), 2023 WL 6211788, at *16 (S.D.N.Y. Sept. 25, 2023) (citing Moss v. Comm'r of Soc. Sec., No. 21 CIV. 01352 (JCM), 2022 WL 4365349, at *17 (S.D.N.Y. Sept. 20, 2022) (limiting plaintiff to “simple, routine work at a low-stress job” “sufficiently accounted for [his] moderate limitation in concentrating, persisting or maintaining pace”)). In any event, “because it is the sole responsibility of the ALJ to weigh all medical evidence and resolve any material conflicts in the record where the record provides sufficient evidence for such a resolution, the ALJ will weigh all of the evidence and see whether it can decide whether a claimant is disabled based on the evidence he has, even when that evidence is internally inconsistent.” Micheli v. Astrue, 501 Fed.Appx. 26, 29-30 (2d Cir. 2012). ALJ Carlton did that here. Therefore, the Court finds ALJ Carlton's determination that Plaintiff has a moderate limitation in concentrating and maintaining a routine, but no limitation in interacting with others, was supported by substantial evidence. Moreover, since the ALJ considered Dr. Goldstein's other opinions, see supra Section II.D.1, but found that they were inconsistent with Plaintiff's own testimony and with the evidentiary record, the ALJ was not required to explicitly incorporate monthly absences as part of his opinion.
Plaintiff's citation to Schaal v. Apfel, 134 F.3d 496 (2d Cir. 1998), does not change this conclusion. In Schaal, the Second Circuit remanded the case for further clinical findings because the Commissioner did not have “good reasons for discrediting” one physician's medical opinion. The Circuit held that “[t]he lack of clinical findings complained of by the ALJ did not justify the failure to assign at least some weight to” the physician's opinion. However, here, ALJ Carlton did not reject the opinion of Dr. Goldstein regarding Plaintiff's health. Instead, the ALJ simply found that some of his opinion was contradicted by the other evidence in the record. In fact, the ALJ credited Dr. Goldstein's opinion that Plaintiff had a moderate limitation in her ability to maintain a routine, (R. 21), but noted this limitation was “adequately controlled by medications,” (R. 14). Moreover, ALJ Carlton explained why he discounted Plaintiff's testimony regarding her ability to interact with others, stating this finding was “[in]consistent with her treatment records . . . .” (R. 21) (citing R. 1070, 1467) (Plaintiff visited her granddaughter twice a week, has friends and a “supportive” relationship with her family). Therefore, unlike in Schaal, where the Second Circuit based its decision on the ALJ's failure “to provide plaintiff with ‘good reasons' for the lack of weight attributed to her treating physician's opinion,” Schaal, 134 F.3d at 505, ALJ Carlton provided numerous, record-based reasons for his decision recommending that Plaintiff can perform some work despite having “moderate limitations for attending to a routine.” (R. 21).
Accordingly, the Court concludes and respectfully recommends finding that the ALJ did not err in finding that Plaintiff could perform “simple and routine work that is not done at a production rate pace.” (R. 15).
III. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend denying Plaintiff's motion, and granting the Commissioner's cross-motion.
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). If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Nelson S. Roman at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at said Courthouse.
Requests for extensions of time to file objections must be made to the Honorable Nelson S. Roman and not to the undersigned. Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b), 6(d), 72(b); Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008).