Opinion
Civil Action 6:20-CV-1302 (LEK/DEP)
04-25-2022
MICHAEL K. A., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY Defendant.
FOR PLAINTIFF OFFICE OF PETER W. ANTONOWICZ OF COUNSEL PETER W. ANTONOWICZ, ESQ. FOR DEFENDANT SOCIAL SECURITY ADMIN. OF COUNSEL MOLLY CARTER, ESQ.
FOR PLAINTIFF OFFICE OF PETER W. ANTONOWICZ OF COUNSEL PETER W. ANTONOWICZ, ESQ.
FOR DEFENDANT SOCIAL SECURITY ADMIN. OF COUNSEL MOLLY CARTER, ESQ.
REPORT AND RECOMMENDATION
DAVID E. PEEBLES U.S. MAGISTRATE JUDGE.
Plaintiff has commenced this proceeding, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), to challenge a determination of the Commissioner of Social Security (“Commissioner”) finding that he was not disabled at the relevant times and, accordingly, is ineligible for the disability insurance (“DIB”) and supplemental security income (“SSI”) benefits for which he has applied. The matter has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3. For the reasons set forth below, I recommend a finding that the Commissioner's determination did not result from the application of proper legal principles and is not supported by substantial evidence.
I. BACKGROUND
Plaintiff was born in October of 1965, and is currently fifty-six years of age. He was fifty-one years old when he filed his application in May of 2017, and fifty-four years of age at the date of the most recent final decision of the Commissioner. Plaintiff measures five feet and five inches in height, and weighed approximately one hundred and thirty-five pounds during the relevant period. Plaintiff currently lives in an apartment with his brother in Rome, New York.
Plaintiff reports having graduated from high school with involvement in special education classes while he was attending school. He has previously worked primarily in janitorial positions.
Plaintiff alleges that he suffers from physical impairments including an inability to use his left (non-dominant) hand, bilateral carpal tunnel syndrome, chronic low back pain, herniated and bulging discs in his spine with a history of surgery on his cervical spine, and arthritis in his right shoulder. As is relevant to his applications, plaintiff has treated for his impairments with Dr. Glady Jacob at Rome Neurology, Dr. Vivienne Taylor at Rome Medical Group, MVHS Adirondack Neurosurgical Office, and Dr. Apparao Poonati. It is also noted that plaintiff has or had issues with alcohol addiction for which he has received treatment.
Plaintiff alleges that he mainly has difficulties with being unable to use his left arm and hand due to a cervical spine impairment that damaged the nerves of his arm, and that those nerve issues were not remedied or improved after spinal surgery performed in May 2017. His dominant right hand is mostly unaffected but he is starting to also develop symptoms in that hand. Plaintiff reports that he is unable to hold a cup or a pen in his left hand or to button or zip things, and he has difficulty doing chores like washing dishes, preparing meals, doing housework, managing groceries, or opening packages. He can prepare some simple meals, do some vacuuming with his right hand, and do small loads of laundry, but his cousin cleans the house for him. He wears a brace on his left arm and can drive and shop, although he needs help loading and unloading items when he does. Plaintiff's activities include doing word search books with his right hand while the book rests on a table, and watching people from the senior center play cards, although he does not play with them because he cannot grasp or hold the cards with his left hand.
II. PROCEDURAL HISTORY
A. Proceedings Before the Agency
Plaintiff applied for DIB and SSI payments under Title II and Title XVI of the Social Security Act on May 18, 2017. After a hearing, administrative law judge (“ALJ”) Elizabeth W. Koennecke issued a fully favorable decision on April 25, 2019, finding that plaintiff had been disabled since January 3, 2017. The Social Security Appeals Council (“Appeals Council”) reviewed the ALJ's decision sua sponte and issued a decision remanding the matter for further proceedings based on a number of perceived errors, including (1) that the ALJ's findings that plaintiff was limited to only “unilateral” handling and fingering and could rarely engage in overhead reaching was not sufficiently specific to facilitate further consideration of plaintiff's functioning at steps four and five of the sequential evaluation; (2) the evidence of record did not substantially support the ALJ's finding that plaintiff would be limited in reaching with both arms; (3) the ALJ did not explain the restriction that plaintiff could never climb and the evidence did not support such a limitation; (4) the ALJ erred in relying on the Medical-Vocational Guidelines (“Grids”) and Social Security Rulings at step five of the analysis rather than eliciting testimony from a vocational expert; and (5) in finding plaintiff disabled, the ALJ did not address whether plaintiff's alcohol or drug abuse was a contributing factor to his disability. In its remand order, the Appeals Council instructed the ALJ to (1) obtain additional evidence to compete the administrative record; (2) obtain evidence from a medical expert with a specialty in orthopedics; (3) further consider the RFC; (4) with the assistance of a vocational expert, further consider whether plaintiff can perform his past relevant and/or other work; and (5) if she again found plaintiff disabled, determine whether alcoholism is a contributing factor to his disability.
ALJ Koennecke conducted a subsequent hearing on February 3, 2020, to obtain the testimony of both a medical expert and a vocational expert. Following that hearing, on February 18, 2020, ALJ Koennecke issued a decision finding that plaintiff was not disabled. That opinion became a final determination of the agency on September 24, 2020, when the Appeals Council denied plaintiff's request for review of the ALJ's decision.
B. The ALJ's Decision
In her decision, ALJ Koennecke applied the familiar, five-step sequential test for determining disability. At step one, she found that plaintiff did not engage in substantial gainful activity during the relevant period. The ALJ next found at step two that plaintiff suffers from a single severe impairment that imposes more than minimal limitations on his ability to perform basic work functions, which is degenerative disc disease of the cervical spine status post repair with residuals affecting plaintiff's nondominant upper extremity.
At step three, ALJ Koennecke examined the governing regulations of the Commissioner setting forth presumptively disabling conditions (the “Listings”), see 20 C.F.R. Pt. 404, Subpt. P, App. 1, and concluded that plaintiff's conditions do not meet or medically equal any of the listed, presumptively disabling conditions set forth in those regulations, specifically considering Listings 1.02 and 1.04.
ALJ Koennecke next surveyed the available record evidence and concluded that plaintiff retains the residual functional capacity (“RFC”) to perform a reduced range of light work, as defined by the controlling regulations, with the following exceptions:
By regulation, light work is defined as follows:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. §§ 404.1567(b), 416.967(b).
with the dominant right upper extremity, can lift up to 20 pounds, no restrictions as to frequency; on the non-dominant side, can lift up to 10 pounds occasionally; on the non-dominant side, can reach in all directions occasionally; there are no reaching restrictions on the dominant side; bilaterally can reach overhead only occasionally; can handle and fine-finger on the left non-dominant side rarely, no restriction on the dominant side except for bilaterally no very fine fingering; stand or walk four hours in an eight-hour day, not more than one hour at a time; sit for six hours, no more than two hours at a time; never climb ladders, scaffolds, or ropes; never work at unprotected heights; never balance, kneel, or crawl; frequently climb stairs and ramps; frequently use foot pedals bilaterally; frequently stoop and crouch; and should avoid concentrated exposure to vibration.
ALJ Koennecke went on at step four to conclude that plaintiff is unable to perform the demands of his past relevant work. Proceeding to step five, the ALJ elicited the testimony of a vocational expert regarding how plaintiff's limitations would impact the occupations that he could perform with the range of light work specified above and concluded, based on the vocational expert's testimony, that plaintiff remains able to perform available work existing in significant numbers in the national economy, citing as representative examples the positions of inspector and sorter. Based upon these findings, ALJ Koennecke determined that plaintiff was not disabled at the relevant times.
C. This Action
Plaintiff commenced this action on October 20, 2020. In support of his challenge to the ALJ's determination, plaintiff argues the ALJ's finding is not supported by substantial evidence because (1) the ALJ failed to explain how she reconciled the limitations in the RFC that plaintiff could lift ten pounds occasionally with his left upper extremity and that plaintiff could only rarely handle or finger with his left hand because, plaintiff asserts, an individual could not lift an object if he is unable to grip that object as the relevant terms are defined by the regulations; (2) the ALJ also failed to explain how she reconciled the ability to lift up to twenty pounds with no frequency restriction with his right upper extremity with the limitation to standing and walking for only four hours in an eight-hour workday, again arguing that the definitions of these terms provided in the regulations show that there is an inconsistency between these findings; (3) the ALJ's finding at step five is not supported by substantial evidence because the job titles the vocational expert provided for the jobs on which the ALJ bases her finding do not match the Dictionary of Occupational Titles (“DOT”) numbers that the vocational expert provided for those jobs, and the actual description of those jobs in the DOT appear to require greater ability to handle than plaintiff possesses; and (4) alternatively, the step five finding is unsupported by substantial evidence because the jobs identified, even if found to be valid and reliable, do not exist in significant numbers in the national economy to meet the Acting Commissioner's burden at step five. Dkt. No. 15.
This action is timely, and the Commissioner does not argue otherwise. It has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order, the court treats the action procedurally as if cross-motions for judgment on the pleadings have been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Oral argument was conducted in this matter, by telephone, on April 20, 2022, at which time decision was reserved.
III. DISCUSSION
A. Scope of Review
A court's review under 42 U.S.C. § 405(g) and 1383(c)(3) of a final decision by the Commissioner is subject to a “very deferential” standard of review, and is limited to analyzing whether the correct legal standards were applied, and whether the decision is supported by substantial evidence. Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Where there is reasonable doubt as to whether an ALJ has applied the proper legal standards, the decision should not be affirmed even though the ultimate conclusion reached is arguably supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). If, however, the correct legal standards have been applied, and the ALJ's findings are supported by substantial evidence, those findings are conclusive, and the decision will withstand judicial scrutiny regardless of whether the reviewing court might have reached a contrary result if acting as the trier of fact. Veino, 312 F.3d at 586; Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988); see also 42 U.S.C. § 405(g).
The term “substantial evidence” has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 390, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); accord, Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003). To be substantial, there must be “more than a mere scintilla” of evidence scattered throughout the administrative record. Richardson, 402 U.S. at 401 (internal quotation marks omitted); Williams, 859 F.3d at 258. “To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis on the substantiality of the evidence must also include that which detracts from its weight.” Williams, 859 F.2d at 258 (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Mongeur v. Hechler, 722 F.2d 1033, 1038 (2d Cir. 1983)).
B. Disability Determination: The Five-Step Evaluation Process
The Social Security Act (“Act”) defines “disability” to include the “inability 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). In addition, the Act requires that a claimant's
physical or mental impairment or impairments [be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work
exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.Id. § 423(d)(2)(A).
The agency has prescribed a five-step evaluative process to be employed in determining whether an individual is disabled. See 20 C.F.R. §§ 404.1520, 416.920. The first step requires a determination of whether the claimant is engaged in substantial gainful activity (“SGA”); if so, then the claimant is not disabled, and the inquiry need proceed no further. Id. §§ 404.1520(b), 416.920(b). If the claimant has not worked at a level constituting SGA, then the second step involves an examination of whether the claimant has a severe impairment or combination of impairments that significantly restricts his or her physical or mental ability to perform basic work activities. Id. §§ 404.1520(c), 416.920(c). If the claimant is found to suffer from such an impairment, the agency must next determine whether it meets or equals an impairment listed in Appendix 1 of the regulations. Id. §§ 404.1520(d), 416.920(d); see also id. Part 404, Subpt. P, App. 1. If so, then the claimant is “presumptively disabled.” Martone v. Apfel, 70 F.Supp.2d 145, 149 (N.D.N.Y. 1999) (citing Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984)); 20 C.F.R. §§ 404.1520(d), 416.920(d).
If the claimant is not presumptively disabled, step four requires an assessment of whether the claimant's RFC precludes the performance of his or her past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). If it is determined that it does, then as a final matter, at step five the agency must examine whether the claimant can do any other work. Id. §§ 404.1520(g), 416.920(g).
The burden of showing that the claimant cannot perform past work lies with the claimant. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Ferraris, 728 F.2d at 584. Once that burden has been satisfied, however, it becomes incumbent on the agency to prove that the claimant is capable of performing other available work. Perez, 77 F.3d at 46. In deciding whether that burden has been met, the ALJ should consider the claimant's RFC, age, education, past work experience, and transferability of skills. Ferraris, 728 F.2d at 585; Martone, 70 F.Supp.2d at 150.
C. Analysis
1. The ALJ's Assessment of Plaintiff's Subjective Reports Regarding the Intensity, Persistence, and Limiting Effect of his Symptoms
Although not raised by plaintiff, I find it prudent to first discuss the ALJ's apparent failure to provide a sufficient assessment of the plaintiff's subjective reports regarding his symptoms.
Under the two-step review protocol applicable in social security cases for assessing a claimant's subjective reports of symptoms, an ALJ must first determine whether the individual has a medically determinable impairment that could reasonably be expected to produce the alleged symptoms, and, if so, then the ALJ must then evaluate the intensity and persistence of those symptoms and determine the extent to which those symptoms limit the claimant's ability to perform work-related activities. Social Security Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *3-8. When addressing this second prong, an ALJ must consider the objective medical evidence and other evidence in the record, including statements by the claimant and reports from both medical and non-medical sources, and is required to evaluate the intensity, persistence, and limiting effects of the claimant's symptoms, considering relevant factors which include evidence regarding (1) daily activities, (2) the location, duration, frequency, and intensity of pain or other symptoms, (3) factors that precipitate or aggravate the claimant's symptoms, (4) the type, dosage, effectiveness, and side effects of medication, (5) any treatment other than medication that is used to relieve the symptoms, (6) other measures to obtain relief of symptoms, and (7) any other relevant factors. Id.
If the ALJ finds that a claimant's subjective testimony should be rejected, he or she must explicitly state the basis for doing so with sufficient particularity to enable a reviewing court to determine whether those reasons for disbelief are legitimate and whether the determination is supported by substantial evidence. Martone v. Apfel, 70 F.Supp.2d 154, 151 (N.D.N.Y. 1999) (citing Brandon v. Bowen, 666 F.Supp. 604, 608 (S.D.N.Y. 1987)). The ALJ's decision need not contain a discussion of all of the potentially relevant factors listed above, provided that it is clear from the decision that the ALJ considered all of the evidence and that he or she provided specific reasons for his or her determination as to the intensity, persistence, and limiting effect of the claimant's symptoms. See Cichocki v. Astrue, 534 Fed.Appx. 71, 76 (2d Cir. 2013) (finding that failure to discuss certain factors did not require remand because the ALJ provided specific reasons for his determination “and the record evidence permits us to glean the rationale of the ALJ's decision”). Where the ALJ's findings are supported by substantial evidence, the decision to discount subjective testimony may not be disturbed on judicial review. Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984).
Although the ALJ included a boilerplate recitation of the two-step standard in her decision and alluded to SSR 16-3p, it is not at all apparent that she made any good-faith effort to actually apply the obligatory analysis in this case. After summarizing the objective medical evidence and recounting some of plaintiff's subjective reports, the ALJ provided the following analysis:
All of the specific symptomology alleged by the claimant in both the evidence of record and at the hearing, as well as all of the specific functional limitations alleged by the claimant in both the evidence of record and at the hearings, have been duly considered by the undersigned in accordance with Social Security Ruling 16-3p. The undersigned also fully considered the claimant's subjective complaints of pain, psychiatric symptomatology, and cognitive symptomatology, together with any resulting functional limitations.
No matter how sincere, however, statements by interested parties cannot overcome the medical evidence of record (SSR 16-3p). Furthermore, an individual's statements about his or her symptoms alone are insufficient to establish that an individual is disabled (SSR 16-3p). In formulating the residual functional capacity for the claimant, moreover, the undersigned has accounted for any functional deficits of the claimant by limiting him to exertional work with manipulative, postural, and environmental restrictions.Administrative Transcript (“AT”) at 25-26.
The Administrative Transcript is found at Dkt. No. 12, and will be cited throughout this decision as “AT .”
This is the only portion of the decision in which the ALJ addresses the plaintiff's subjective reports, and yet, despite incanting in a conclusory fashion that she appropriately considered plaintiff's subjective reports, there is no indication of what her conclusion was, much less the specific reasons underlying that conclusion. There is no discussion suggesting that the ALJ considered any of the relevant factors identified in Social Security Ruling (“SSR”) 16-3p. The ALJ did not even make any clear finding as to whether the subjective reports were or were not consistent with the evidence as a general matter.
Further, although the ALJ discussed the objective medical evidence and recounted plaintiff's reports activities of daily living to some extent, there is nothing in those abstract recitations of evidence that would provide a rationale to support the ALJ's implicit rejection of the majority of plaintiff's subjective reports related to his ability to use his left hand in particular. Indeed, the cited medical evidence shows that plaintiff had ongoing observed limitations related to his left hand, including references to a claw hand, inability to open or close that hand fully, left wrist drop, and even “non-functional motor strength” in the left extremity, and the cited reported activities suggest that plaintiff cannot use his left hand much, if at all, and that he is severely limited by that inability. The only evidence that would support the ALJ's rejection of certain subjective reports related to plaintiff's left hand is her stated reliance on various opinion evidence, particularly that of medical expert Dr. Arthur Lorber. However, statements from medical sources are only one aspect of the evidence that an ALJ is required to consider when assessing a plaintiff's subjective reports and symptoms, and the other evidence in the record that also requires consideration, as was already discussed, seems to contradict that opinion evidence in relevant respects. SSR 16-3p. There is simply nothing in the ALJ's decision as a whole that explains why she implicitly found that some of plaintiff's subjective reports, particularly related to the functionality of his left hand, should not have been fully accounted for, nor am I convinced that the ALJ's RFC finding sufficiently accounts for the full extent of limitations that plaintiff reported, again, particularly regarding his left hand. Without any indication of how the ALJ assessed the evidence and the bases for her finding regarding plaintiff's subjective complaints, meaningful review of that finding cannot be conducted. See Holman v. Comm'r of Soc. Sec., 19-CV-4393, 2021 WL 857333, at *2 (S.D.N.Y. Mar. 8, 2021) (adopting report and recommendation in which remand was recommended based on the ALJ's use of “boilerplate language that does not satisfy the requirement that the ALJ take Plaintiff's subjective complaints into account”); see also Griffin v. Colvin, 12-CV-0976, 2014 WL 296854, at *11 (N.D.N.Y. Jan. 27, 2014) (Hines, M.J.; Sharpe, C.J.) (acknowledging that a credibility assessment is defective and not susceptible to meaningful review where the ALJ uses “meaningless and suspicious boilerplate” without any further explanation or articulation of the finding regarding subjective reports, but finding no error in that case because the ALJ did provide a detailed explanation and articulated how she considered the relevant regulatory factors).
Based on the foregoing, I recommend that this matter be remanded for further proceedings based on the ALJ's failure to appropriately apply SSR 16-3p and document her findings related to her assessment of plaintiff's subjective reports of symptoms, which error prevents meaningful review.
2. The ALJ's Reliance on the Medical Expert's Opinion
Although also not raised in plaintiff's brief, I have chosen to examine the ALJ's finding that the opinion of Dr. Arthur Lorber is the most persuasive of the medical opinion evidence in the record. That opinion, provided during the most recent hearing in this matter, almost exactly mirrors the ALJ's RFC finding, such that she essentially adopted it wholesale as the definitive statement of plaintiff's functional abilities. AS a result of the medical expert's testimony, the ALJ found that all the other opinions in the record were of less persuasive value when assessing plaintiff's RFC. AT 27. Because the ALJ relied so heavily on Dr. Lorber's opinion, the reasons she provided to support that reliance warrant closer examination.
The ALJ found that Dr. Lorber's opinion was the most persuasive of all of the opinions in the record based on the fact (1) he is an impartial medical expert in orthopedics; (2) he reviewed the record; and (3) the Appeals Council ordered that his opinion be obtained upon remand. AT 26. The ALJ also recounted the testimony that ALJ Lorber provided in support of his opinion. AT 26-27.
Because plaintiff filed his applications for benefits on May 18, 2017, this case is subject to the amended regulations regarding the consideration of medical opinion evidence. Under those regulations, the Commissioner “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s), . . . including those from your medical sources,” but rather will consider whether those opinions are persuasive by primarily considering whether the opinions are supported by and consistent with the record in the case. 20 C.F.R. § 416.920c(a); see 82 Fed.Reg. 5844-01, 2017 WL 168819, at *5853 (stating that, in enacting the new regulations, the agency was explicitly “not retaining the treating source rule”). An ALJ must articulate in his or her determination as to how persuasive he or she finds all of the medical opinions and explain how he or she considered the supportability and consistency of those opinions. 20 C.F.R. § 416.920c(b). The ALJ also may - but is not required to -explain how he or she considered the other relevant enumerated factors related to the source's relationship with the claimant, including the length of any treatment relationship, the frequency of examinations by the source and the purpose and extent of the treatment relationship, whether the source had an examining relationship with the claimant, whether the source specializes in an area of care, and any other factors that are relevant to the persuasiveness of that source's opinion. 20 C.F.R. § 416.920c(c).
On the matter of supportability, the regulations state that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinion or prior administrative medical findings(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1).
On the matter of consistency, the regulations state that “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).
ALJ Koennecke did appear to assess the factor of supportability in that she included a lengthy recitation of the testimony Dr. Lorber provided in response to questions by plaintiff's representative at the hearing. AT 2627. However, particularly as to the ALJ's adoption of Dr. Lorber's finding that plaintiff can lift ten pounds occasionally with his left upper extremity, it is not clear that the ALJ assessed how that testimony supports that finding. Much of Dr. Lorber's explanation at the hearing was to explain why the evidence did not support any restrictions in plaintiff's right upper extremity. AT 44-49. Regarding the left upper extremity, Dr. Lorber testified only that “[t]here is no doubt of the persistent motor disorganization in his left hand. He has a claw hand if you know what that means. His fingers are curled up like a claw and he can't fully extend them and can't properly use his left hand.” AT 45. The ALJ noted this testimony, but did not explain how it supports Dr. Lorber's finding that plaintiff remains able to lift ten pounds occasionally with his left upper extremity.
Even if the ALJ's discussion sufficiently showed that she considered the factor of supportability by reciting the full explanation Dr. Lorber provided for his opinion, any discussion of the factor of consistency is notably absent from the ALJ's decision. Indeed, the ALJ nowhere indicates whether she found Dr. Lorber's opinion to be consistent with the other evidence in the record, merely noting that he considered that evidence when formulating his opinion. Her notation that Dr. Lorber reviewed the medical evidence does not form the basis for even an inference that she found his opinion to be consistent with such evidence. While she does provide a recitation of the objective medical evidence, it is not clear how the ALJ compared that evidence to Dr. Lorber's opinion. The ALJ's recitation acknowledges pertinent findings particularly related to plaintiff's left hand, including observations of left “wrist drop”, decreased left hand grip strength, left arm weakness, limited ability to operate his hand, “nonfunctioning motor strength” in his left upper extremity, and that plaintiff's hand was in a claw-like position. AT 23-24. In addition to the documented problems with his left hand, plaintiff was also observed on multiple examination as having decreased 3/5 strength in his left elbow extensors with increased muscle tone in his left upper extremity. See, e.g., AT 106364, 1118, 1157, 1160. Because the medical record documents that plaintiff continued to experience a range of issues with the use of not only his left hand, but also some impacts on his left arm in general, the ALJ's failure to provide any explanation as to how she assessed the consistency of Dr. Lorber's opinion with this evidence not only violates the regulations, but also renders it impossible to meaningfully review whether her heavy reliance on Dr. Lorber's opinion, particularly his finding that plaintiff could lift ten pounds occasionally with his left upper extremity, is supported by substantial evidence. See Nicole L. v. Kijakazi, 20-CV-1576, 2022 WL 160274, at *8-9 (N.D.N.Y. Jan. 18, 2022) (Mordue, J.) (finding error where the ALJ “did not provide any explicit analysis of the factor of supportability” as to one opinion); Carmen M. v. Comm'r of Soc. Sec., 20-CV-6532, 2021 WL 5410550, at *4 (W.D.N.Y. Nov. 19, 2021) (noting that “[a]n ALJ is specifically required to explain how he or she considered the supportability and consistency factors for a medical opinion,” and that, “[i]f the ALJ failed adequately to explain the supportability and consistency factors, or bases her explanation upon a misreading of the record, remand is required”).
Wrist drop has been described as when, because of compromise in nerve functioning, “the hand hangs flaccidly in a position of flexion when the patient attempts to bring the arm to a horizontal position.” See National Center for Biotechnology Information, https://www.ncbi.nlm.nih.gov/books/NBK532993/ (last visited Mar. 17, 2022).
Lastly, reviewing the ALJ's decision as a whole, I am not convinced that the ALJ otherwise appropriately performed her duties in this case when relying on Dr. Lorber's opinion. The ALJ states twice that she found Dr. Lorber's opinion to be the most persuasive in part because the Appeals Council ordered her to obtain his testimony. AT 26-27. However, nothing in the Appeals Council's remand order required the ALJ to adopt the medical expert's opinion; instead, it only directed her to obtain an opinion from a medical expert. AT 113. It is notable that, in her first ALJ decision, which was vacated by the Appeals Council, ALJ Koennecke concluded that plaintiff was limited to lifting and carrying only five pounds with his left upper extremity. AT 110. In discussing the reasons for remand, the Appeals Council did not appear to find any fault with that specific limitation regarding lifting and carrying with the left upper extremity. AT 111-12. Rather, as was discussed previously, the Appeals Council found, in relevant part, that the ALJ's conclusions that plaintiff was limited to only “unilateral” handling and fingering and could rarely engage in overhead reaching were not sufficiently specific to facilitate further consideration of plaintiff's functioning at steps four and five of the sequential evaluation, and that the evidence of record did not substantially support the ALJ's finding that plaintiff would be limited in reaching with both arms. Id. The vocational expert at the most recent hearing testified that, if an individual is limited to lifting only five pounds with his or her left upper extremity, it would cause the individual to be able to perform only sedentary work, and the two positions identified would no longer be available. AT 52-53. The only apparent basis for the change from a five pound restriction to a ten pound restriction is Dr. Lorber's opinion. The ALJ's failure to appropriately explain how she applied the regulatory factors for weighing opinion evidence is therefore compounded by the fact that she appears to have relied on his opinion in large part simply because the Appeals Council ordered her to obtain it, without actually considering what findings the Appeals Council found to be deficient or unsupported in her first decision and whether every aspect of Dr. Lorber's opinion was consistent with the evidence as a whole.
Because a limitation to lifting and carrying only five pounds with the left upper extremity is both supported by other opinion evidence, particularly the opinions from Dr. Glady Jacobs and the January 2020 opinion of Dr.
I note that, although the ALJ provided specific reasons for finding the other opinions less persuasive, she also stated that, “[a]s a result of the Appeals Council order for medical expert testimony, the undersigned now finds that all other opinions of record have less persuasive value,” suggesting that her assessment of those opinions was tainted by her heavy reliance on Dr. Lorber's opinion. AT 27. It is therefore not clear whether the assessment of the persuasiveness of those opinions would change when an ALJ conducts a more proper and full assessment of Dr. Lorber's opinion on remand.
Vivienne Taylor, and would appear to render plaintiff disabled based on the vocational expert's testimony, the ALJ's failures here materially impact the outcome of this case and cannot be considered harmless.
Based on the foregoing, I recommend that this matter be remanded for further consideration based on the ALJ's failure to appropriately assess Dr. Lorber's opinion consistent with the applicable regulations.
IV. SUMMARY AND RECOMMENDATION
After considering the record as a whole and the issues raised by the plaintiff in support of her challenge to the Commissioner's determination, I recommend a finding that the Commissioner's determination did not result from the application of proper legal principles and is not supported by substantial evidence, and that the matter be remanded to the Commissioner for further consideration. Accordingly, it is hereby respectfully RECOMMENDED that plaintiff's motion for judgment on the pleadings (Dkt. No. 15) be GRANTED, defendant's motion for judgment on the pleadings (Dkt. No. 16) be DENIED, and this matter be remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Order.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen 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 DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.