Opinion
20 Civ. 7124 (NSR) (PED)
03-09-2022
KATRIN A. MORGAN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
NELSON STEPHEN ROMAN, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Plaintiff Katrin Morgan brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final determination of the Commissioner of Social Security (the “Commissioner”) denying plaintiff's application for disability insurance benefits. The period at issue begins January 24, 2016, the date plaintiff alleges she became disabled, and ends on December 31, 2018, the date she was last insured for disability benefits. The matter is before me pursuant to an Order of Reference entered March 22, 2021 (Dkt. #25).
Presently before this Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. #27 (plaintiff's motion), #32 (plaintiff's memorandum of law (and amended motion)), #36 (defendant's cross-motion) and #37 (defendant's memorandum of law)). Plaintiff argues, as the basis for her motion, that the Commissioner's determination that plaintiff retains the residual functional capacity (‘RFC”) for sedentary work is not supported by substantial evidence. Dkt. #32, at 10-20. Defendant asserts, in response, that the Administrative Law Judge (“ALJ”) applied the correct legal standards and that substantial evidence supports the ALJ's decision. Dkt. #37, at 20-30. For the reasons set forth below, I respectfully recommend that plaintiff's motion be DENIED and that defendant's motion be GRANTED.
Unless otherwise specified, citations to specific page numbers reflect ECF pagination.
II. BACKGROUND
The following facts are taken from the administrative record (“R.”) of the Social Security Administration, filed by defendant on March 31, 2021 (Dkt. #26).
The Court conducted a plenary review of the entire administrative record, familiarity with which is presumed. I assume knowledge of the facts surrounding plaintiff's medical treatment and do not recite them in detail, except as germane to the analysis set forth below.
A. Application History
On May 16, 2017, plaintiff filed an application for disability benefits, alleging that she had been disabled since January 24, 2016 due to heart disease/heart attack, neck pain, back pain, depression, pain in both shoulders, asthma, hypertension and obesity. R. 108, 110, 118. On or about January 3, 2018, plaintiff was notified that her claim had been administratively denied. R. 123-33. She requested a hearing before an ALJ; a hearing was held on May 24, 2019 before ALJ Seth Grossman. R. 28-83, 137-38. Plaintiff appeared with counsel and testified at the hearing. R. 30, 32-44. On June 21, 2019, the ALJ issued a written decision in which he concluded that plaintiff was not disabled within the meaning of the Social Security Act (“SSA”). R. 10-20. The ALJ's decision became the final order of the Commissioner on July 6, 2020, when the Appeals Council denied plaintiff's request for review. R. 1-3. This action followed.
Citations to “R. ” reflect document pagination.
Medical expert Dr. Subramaniam Krishnamurthi and vocational expert Christine Ditrinco also testified at the hearing. R. 30-31, 44-82.
B. Treating Chiropractor Richard Amato
On September 2, 2016, Richard Amato, D.C., filled out a Workers' Compensation Board evaluation. R. 376-78. He opined that plaintiff had a permanent impairment as the result of a work-related lumbar disc injury. R. 377. He assessed that plaintiff could occasionally (up to 1/3 of the time) lift, carry, push and pull up to ten pounds, occasionally sit, stand, walk, bend, stoop, squat, grasp, manipulate, reach (at or below shoulder level and overhead) and drive and never climb, kneel, operate machinery or be exposed to extreme temperatures and/or high humidity. R. 378. Dr. Amato stated that these limitations were based upon “positive orthopedic and neurological exam indicative of radiculopathy and subluxation” and an MRI of the lumbar spine. R. 377. He opined that plaintiff would be unable to perform sedentary work. R. 378.
The form also indicates that plaintiff has unspecified environmental limitations. R. 378.
C. Consultative Medical Examination #1
On October 31, 2017, Dr. Michael Healy conducted a consultative internal medicine examination of plaintiff. R. 991-95. Plaintiff reported back pain, sometimes very severe, aggravated by prolonged standing, walking, sitting and bending over. R. 991. Plaintiff also reported bilateral knee pain, triggered by walking or putting weight on the knees, with occasional swelling. Id. Plaintiff also complained of right shoulder pain; Dr. Healy noted that plaintiff had recently had rotator cuff repair surgery in that same shoulder. Id. Plaintiff reported “some degree of improvement and is able to reach straight up with that involved right shoulder.” Id.
Dr. Healy observed that plaintiff appeared to be in mild discomfort and used no assistive devices. R. 993. Her gait was widened, short and antalgic; she could walk on toes but not on heels. Id. Plaintiff's stance was widened and her squat was 30%. Id. She needed no help changing for the exam; she needed help getting on and off the exam table and could not rise from a chair without difficulty. Id.
Plaintiff's skin, lymph nodes, head, face, eyes, ears, nose, throat and neck were normal. Id. Her lungs were clear to auscultation and percussion was normal. Id. There was no significant chest wall abnormality and diaphragmatic motion was normal. Id. Plaintiff's heart rhythm was regular with no audible murmur, gallop or rub. Id. Her abdomen and extremities were normal; no muscle atrophy was evident. R. 994. Neurologic examination revealed no reflex or sensory deficit; plaintiff had full strength in her upper extremities and decreased strength (4/5) in both lower extremities. Id. Her hand and finger dexterity were intact and her grip strength was 5/5 bilaterally. Id.
Plaintiff's cervical spine showed full flexion, extension, lateral flexion (bilaterally) and full rotary movement (bilaterally). Id. There was no scoliosis. Id. Plaintiff's lumbar spine showed decreased flexion/extension of approximately 30 degrees, full lateral flexion (bilaterally) and full rotary movement (bilaterally). Id. Straight-leg raising test was negative, bilaterally. Id. Plaintiff had full range of motion (“ROM”), bilaterally, of her shoulders, elbows, forearms, wrists, hips and ankles. Id. She had mild discomfort on ROM of both knees at approximately 45 degrees and tenderness on palpation of both knees. Id.
Dr. Healy diagnosed: chronic back pain; known lumbar spinal intervertebral disc disruption; chronic knee pain; bilateral degenerative joint disease; right shoulder injury (previous rotator cuff repair with good results); history of atherosclerotic heart disease with previous stent placement one year prior; asthma; and hypertension. Id. He noted that plaintiff's prognosis was “good.” R. 995. Dr. Healy opined:
The claimant has moderate limitation sitting, standing, walking, climbing stairs, bending, lifting, and carrying. The claimant should avoid exposure to respiratory irritants, smoke, and dust.Id.
D. State Agency Review Physician
On January 3, 2018, state agency physician V. Cincore, M.D. reviewed plaintiff's medical record and assessed her RFC. R. 115-17. Dr. Cincore opined that plaintiff could frequently lift/carry up to ten pounds, stand/walk for two hours and sit for six hours in an eighthour workday, occasionally climb, balance, stoop, kneel, crouch and crawl, and must avoid extreme heat/cold, wetness, humidity, noise, vibration, respiratory irritants and hazards. R. 11516. The ALJ found Dr. Cincore's conclusions “persuasive” on the ground that they “are consistent with the evidence of record showing normal neurological findings and fairly good response to treatment and the claimant's surgeries.” R. 17.
E. Consultative Medical Examination #2
On January 14, 2019, Dr. Healy conducted a second consultative internal medicine examination of plaintiff. R. 1222-27. Plaintiff reported numbness, tingling and discomfort in both wrists and hands, especially when using the hands. R. 1222. She stated that she had been diagnosed with bilateral carpal tunnel syndrome and was offered surgery, which she deferred. R. 1222-23. Plaintiff reported ongoing lower back pain, which “may radiate to both lower extremities.” R. 1223. She stated that she had been offered lumbar spine surgery, which she deferred. Id. Plaintiff also reported “some residual neck pain but all in all improved” since her discectomy in 2017. Id.
Dr. Healy observed that plaintiff appeared to be in slight discomfort and used a cane, prescribed to her by her physician. R. 1224. Plaintiff reported that the cane helps her mostly with balance. Id. Her gait was widened and her stride shortened; she could stand on toes and could not walk on heels. Id. Dr. Healy opined that the cane was ”medically necessary, and when walking with the cane, [plaintiff's] stride is longer and her gait is narrower. R. 1224-25. Plaintiff's stance was wide and her squat was 20% (“possibly partially due to pain in her right knee”). R. 1224. She needed no help changing or getting on and off the exam table; she could not rise from a chair without difficulty. R. 1225.
Plaintiff's skin, lymph nodes, head, face, eyes, ears, nose, throat and neck were normal. Id. Her lungs were clear to auscultation and percussion was normal. Id. There was no significant chest wall abnormality and diaphragmatic motion was normal. Id. Plaintiff's heart rhythm was regular with no audible murmur, gallop or rub. Id. Her abdomen and extremities were normal; no muscle atrophy was evident. R. 1225-26. Neurologic examination revealed no reflex or sensory deficit; plaintiff had decreased strength (4/5) in her right lower extremity and normal 5/5 strength in her other three extremities. R. 1226. Her hand and finger dexterity were intact and her grip strength was 5/5 bilaterally. Id.
Plaintiff's cervical spine showed decreased flexion/extension (30 degrees), lateral flexion (10 degrees right and left) and rotary movement (30 degrees right/left). R. 1225. Plaintiff's lumbar spine showed decreased flexion/extension (45 degrees), full lateral flexion (bilaterally) and full rotary movement (bilaterally). Id. Straight-leg raising test was negative, bilaterally. Id. Plaintiffs shoulders showed decreased forward elevations and abductions (approximately 120 degrees, bilaterally); adductions and internal/external rotations were normal, bilaterally. Id. Plaintiff complained of pain in her back when trying to elevate her arms. Id. She had full ROM, bilaterally, of her elbows, forearms, wrists and hips. Id. Plaintiff's right knee showed decreased flexion/extension (45 degrees) associated with discomfort. Id. She had full ROM of her left knee and both ankles. R. 1226.
Dr. Healy diagnosed: lower back pain (probable lumbar spinal intervertebral disc disruption); neck pain (status post anterior cervical discectomy); coronary artery disease (status post coronary artery stent placement); diabetes; asthma; carpal tunnel syndrome; sleep apnea; and status post arthroscopic right knee surgery. Id. He noted that plaintiff's prognosis was “good.” Id. Dr. Healy opined:
This claimant has moderate limitations sitting, standing, walking, bending, lifting, and climbing stairs. The claimant should avoid exposure to respiratory irritants, smoke, and dust.Id.
F. Medical Expert's Hearing Testimony
Dr. Subramaniam Krishnamurthi reviewed plaintiff's medical records and testified at the hearing as an impartial medical expert. R. 31-32, 44-63. He opined that plaintiff: could lift ten pounds frequently and twenty pounds occasionally; could sit for six hours (two hours consecutively) and stand/walk for two hours in a workday; could frequently reach above the shoulder, handle, finger, feel and grasp; could occasionally climb stairs, bend, stoop, crawl, crouch and kneel; and could never climb ladders, scaffolds or ropes or be exposed to heights, heavy machinery or pulmonary irritants. R. 46, 53. Dr. Krishnamurthi testified that these restrictions, which limited plaintiff to sedentary work, were necessitated by plaintiff's knee pain and arthroscopy, degenerative disease of the lumbar spine (including some disc bulge revealed in an MRI on March 16, 2016), obesity, cervical fusion surgery, right shoulder arthroscopy and bilateral carpal tunnel syndrome. R. 46-47. Dr. Krishnamurthi explained that the positive clinical findings in the record (e.g. decreased range of motion) were not severe enough to preclude plaintiff from sedentary work. R. 47-48.
III. LEGAL STANDARDS
A. Standard of Review
In reviewing a decision of the Commissioner, a district court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). See 42 U.S.C. § 1383(c)(3). “It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). Rather, the court's review is limited to “‘determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.'” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (quoting Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002)).
The substantial evidence standard is “even more” deferential than the “‘clearly erroneous' standard.” Brault v. Soc. Sec. Admin, 683 F.3d 443, 448 (2d Cir. 2012). The reviewing court must defer to the Commissioner's factual findings and the inferences drawn from those facts, and the Commissioner's findings of fact are considered conclusive if they are supported by substantial evidence. See 42 U.S.C. § 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). Substantial evidence is “‘more than a mere scintilla'” and “‘means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotation marks and citation omitted). “If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld.” McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (citation omitted).
“However, where the proper legal standards have not been applied and ‘might have affected the disposition of the case, the court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ. Failure to apply the correct legal standards is grounds for reversal.'” Velez v. Colvin, No. 14 Civ. 3084, 2017 WL 1831103, at *15 (S.D.N.Y. June 5, 2017) (quoting Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004)). Thus, “[w]hen there are gaps in the administrative record or the ALJ has applied an improper legal standard, ” or when the ALJ's rationale is unclear in relation to the record evidence, remand to the Commissioner “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. Statutory Disability
A claimant is disabled under the Social Security Act (“the SSA”) when he or she lacks the ability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). In addition, a person is eligible for disability benefits under the SSA only if
his physical or mental impairment or impairments are 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), 1382c(a)(3)(B).
Social Security Regulations set forth a five-step sequential analysis for evaluating whether a person is disabled under the SSA:
(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, 758 F.3d at 150 (citing 20 C.F.R. §§ 404.1520(a)(4)(I)-(v), 416.920(a)(4)(I)-(v)). The claimant bears the burden of proof as to the first four steps of the process. See Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008). If the claimant proves that his impairment prevents him from performing his past work, the burden shifts to the Commissioner at the fifth and final step. See Brault, 683 F.3d at 445.
In the event that the regulations and Social Security Rulings cited herein were amended subsequent to the ALJ's decision, I discuss (and have applied) the relevant regulations/rulings as they existed at the time of the ALJ's decision.
Additionally, where a claimant suffers from an alleged mental impairment, the ALJ is required to utilize a “special technique” at the second and third steps. See Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008); see also 20 C.F.R. §§ 404.1520a, 416.920a. At step two, in determining whether the claimant has a “severe impairment, ” the ALJ must rate the claimant's degree of functional limitation in four areas: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. See 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). If the claimant's mental impairment or combination of impairments is severe, then at step three the ALJ must “compare the relevant medical findings and the functional limitation ratings to the criteria of listed mental disorders in order to determine whether the impairment meets or is equivalent in severity to any listed mental disorder.” Kohler, 546 F.3d at 266 (citing 20 C.F.R. § 404.1520a(d)(2)). See also 20 C.F.R. § 416.920a(d)(2). If the claimant suffers from a severe impairment which is not listed (or equivalent in severity to a listed mental disorder), then the ALJ must assess the claimant's residual functional capacity (“RFC”). See Kohler, 546 F.3d at 266 (citing § 404.1520a(d)(3)). See also 20 C.F.R. § 416.920a(d)(3).
IV. THE ALJ'S DECISION
To assess plaintiff's disability claim, the ALJ followed the five-step sequential analysis and applied the “special technique” at step two. See 20 C.F.R. §§ 416.920(a)(4)(i)-(v), 416.920a and discussion, supra. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity during the relevant period (from alleged onset date through date last insured). R. 13. At step two, the ALJ concluded that plaintiff had the following severe impairments during the relevant period: hypertension; diabetes mellitus; asthma; obesity; coronary artery disease; degenerative disc disease of the cervical and lumbar spine; degenerative joint disease of the right shoulder and right knee; carpal tunnel syndrome; and sleep apnea. Id. Additionally, at step two, the ALJ determined that plaintiff's alleged mental impairment caused no more than mild limitation in any of the four broad areas of mental functioning and, thus, was nonsevere. R. 13-14. At step three, the ALJ determined that plaintiff's impairments (individually or combined) did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 14.
Next, the ALJ assessed plaintiff's RFC as follows:
After careful consideration of the entire record, I find that through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except she cannot perform overhead reaching; she is limited to no more than frequent fingering and handling; she is limited to no more than occasional crouching and kneeling; she can perform no crawling, climbing or working on ladders; she cannot have concentrated exposure to chemicals or pollutants; she needs an option for 5 minutes of standing after 50 minutes of sitting. The above residual functional capacity is supported by the testimony of Subramaniam Krishnamurthi, M.D., the impartial medical expert who appea[r]ed and testified at the claimant's hearing.R. 14-15. In reaching this conclusion, 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” and “medical opinion(s) and prior administrative medical finding(s)” in accordance with 20 C.F.R. §§ 404.1520c and 404.1529 and Social Security Ruling 16-3p. R. 15.
In particular, the ALJ addressed Dr. Krishnamurthi's opinion as follows:
I agree with assessment [sic]. The claimant has mostly 5/5 strength throughout although there are some measurements of 4/5, and is otherwise neurologically intact. Importantly, my review of all the records gives me the impression that, although the claimant has legitimate complaints of pain, she should be able to do sedentary work. For example, her annual examination on July 19, 2017 was fairly unremarkable. In fact, the totality of the examinations in the Riverdale Family Practice notes are fairly unremarkable.R. 17 (emphasis in original) (internal citations to record omitted). Further, the ALJ concluded that the opinions of the consultative medical examiner (Dr. Healy) were “mostly persuasive” because they were “adequately supported by his examination findings and mostly consistent with the opinion of Dr. Krishnamurthi.” R. 17. The ALJ also found the conclusions of the state agency physician (Dr. Cincore) to be “persuasive, ” noting that his opinion and Dr. Healy's opinion “are consistent with the evidence of record showing normal neurological findings and fairly good response to treatment and the claimant's surgeries.” Id. On the other hand, the ALJ was not persuaded by Dr. Amato's opinion, to wit:
I find that the opinion of chiropractor Dr. Amato is not persuasive because it is not supported by the weight of the objective physical evidence nor by the weight of the expert opinion in the record. I also note that the opinions of doctors involved in Worker's Compensation claims, on both sides, should be treated with an additional degree of scrutiny, as they are hardly totally unbiased sources. I also give less weight to doctors of chiropractic medicine that to regular doctors of medicine.Id. (internal citation to record omitted).
At step four, the ALJ determined that plaintiff is unable to perform any past relevant work. R. 18. At step five, based upon the vocational expert's testimony (and considering plaintiff's age, education, work experience and RFC), the ALJ concluded that plaintiff, through the date last insured, “was capable of making a successful adjustment to other work that existed in significant numbers in the national economy.” R. 19. Thus, the ALJ found plaintiff “not disabled” as defined in the SSA. Id.
V. DISCUSSION
Plaintiff argues that the ALJ's opinion is not supported by substantial evidence because he improperly weighed the medical opinion evidence. SSA regulations pertaining to the evaluation of medical evidence have been amended for claims filed after March 27, 2017. Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed.Reg. 58844-10, at *5844 (Jan. 18, 2017). Because plaintiff filed her claim on May 16, 2017, the new regulations (codified at 20 C.F.R. §§ 404.1520c and 416.920c) apply.
“Under the new regulations, a treating doctor's opinion is no longer entitled to a presumption of controlling weight.” Prieto v. Comm'r of Soc. Sec., No. 20 Civ. 3941, 2021 WL 3475626, at *8 (S.D.N.Y. Aug. 6, 2021). Instead, all medical opinions must be evaluated for “their persuasiveness” based on the following five factors: supportability; consistency; relationship with the claimant; specialization; and “other factors.” 20 C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c). “When evaluating the persuasiveness of a medical opinion, the most important factors are supportability and consistency.” Jacqueline L. v. Comm'r of Soc. Sec., 515 F.Supp.3d 2, 7 (W.D.N.Y. 2021). As to supportability, “[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 findings(s), the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). As for consistency, “[t]he more consistent a medical opinion(s) or prior administrative 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.” Id. at §§ 404.1520c(c)(2), 416.920c(c)(2). “An ALJ must not only consider supportability and consistency in evaluating medical source opinions but also must explain the analysis of those factors in the decision.” Prieto, 2021 WL 3475626, at *9. See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). Further, in most instances, an ALJ “must consider, but need not explicitly discuss, the three remaining factors in determining the persuasiveness of a medical sources's opinion.” Amber H., No. 20 Civ. 490, 2021 WL 2076219, at *5 (N.D.N.Y. May 24, 2021). However, “where the ALJ has found two or more medical opinions to be equally well supported and consistent with the record, but not exactly the same, the ALJ must articulate how he or she considered those factors contained in paragraphs (c)(3) through (c)(5). See 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3).
Here, plaintiff does not assert that the ALJ weighed the medical evidence pursuant to an incorrect standard. Rather, plaintiff asserts several narrower arguments, which I now address in turn.
First, plaintiff argues that the ALJ erroneously ignored the “opinions” of treating physicians Amato, Kim and Seldes that plaintiff was 100% disabled. This argument is meritless. “[T]he regulations governing claims filed on or after March 27, 2017 deem decisions by other governmental agencies and nongovernmental entities, disability examiner findings, and statements on issues reserved to the Commissioner (such as statements that a claimant is or is not disabled) as evidence that ‘is inherently neither valuable nor persuasive to the issue of whether [a claimant is] disabled.'” Cory W. v. Comm'r of Soc. Sec., No. 20 Civ. 1424, 2021 WL 5109663, at *4 (W.D.N.Y. Nov. 3, 2021) (citing 20 C.F.R. § 416.920b(c)(1)-(3) (2017)). “The regulations also make clear that, for claims filed on or after March 27, 2017, ‘we will not provide any analysis about how we considered such evidence in our determination or decision.'” Id. (citing 20 C.F.R. § 416.920b(c)).
From January 6, 2016 through October 15, 2018, treating chiropractor Dr. Amato and treating surgeon Dr. Kim submitted Workers Compensation forms in which they stated that plaintiff was 100% disabled. R. 1290-1308, 1315-18. From March 27, 2017 through November 5, 2018, treatment notes from treating surgeon Dr. Seldes state that plaintiff was “temporarily totally disabled.” R. 1184-1204.
Second, plaintiff asserts that the ALJ erred by according any weight to the opinion of the state agency review physician (Dr. Cincore) because “a close reading of the record shows that the physical RFC found in Exhibit 4A was actually provided by S. Collier, a DDS examiner, and therefore does not represent a medical opinion.” Dkt. #32, at 18. Plaintiff is mistaken: Dr. Cincore signed the RFC at issue. R. 117. S. Collier (an agency decisionmaker) conducted the agency's initial disability determination, which incorporated Dr. Cincore's medical assessment. R. 109-118.
Third, plaintiff challenges, on several grounds, the ALJ's reliance on the opinion of consultative medical examiner Dr. Healy. Plaintiff asserts that “Dr. Healy's assessment was performed on January 14, 2019 and is thus not relevant to the entire period at issue.” Dkt. #32, at 18. However, plaintiff seemingly overlooks the fact that Dr. Healy examined plaintiff twice-first during the relevant period in October 2017-and issued two identical opinions assessing only moderate limitations. R. 995, 1226. Plaintiff also contends that the ALJ erred by finding Dr. Healy's opinion “mostly persuasive” but rejecting some limitations ostensibly assessed by Dr. Healy. An ALJ is entitled to adopt some portions of a medical source opinion and reject other portions, provided he explains his reasoning for doing so. See Fahima H. v. Comm'r of Soc. Sec., No. 20 Civ. 0292, 2021 WL 3615702, at *4 (W.D.N.Y. Aug. 16, 2021). Here, the ALJ did not explain why he found “extreme” the limitation that claimant can never kneel, stoop or crouch. But this error is harmless: Dr. Healy did not opine, in either of his opinions, that plaintiff can never stoop, kneel or crouch. R. 995, 1226. Finally, plaintiff argues that Dr. Healy's consultative opinion must be given limited weight and cannot constitute substantial evidence. Plaintiff is mistaken. “It is well-established that a consultative examiner's opinion may constitute substantial evidence if otherwise supported by the record.” Tyrone C. v. Comm'r of Soc. Sec., No. 20 Civ. 0790, 2021 WL 4392071, at *6 (W.D.N.Y. Sept. 23, 2021) (citing Grega v. Saul, 816 Fed.Appx. 580, 582-83 (2d Cir. 2020) (summary order)). Here, as the ALJ correctly noted, Dr. Healy's opinion was supported by his physical examination findings and was consistent with Dr. Krishnamurthi's opinion that plaintiff was capable of performing sedentary work. Further, as the ALJ noted, Dr. Healy's opinion was consistent with the record medical evidence which reflected reduced ranges of motion and tenderness in the affected joints but largely intact neurological functioning. R. 362-64. 397, 400, 402-03, 405, 407, 455, 465, 587, 610, 632, 994, 1193-94, 1211-12, 1216, 1218, 1220, 1224-26, 1322-23, 1332-33. Accordingly, in sum, plaintiff's challenges to the ALJ's reliance on Dr. Healy's opinion are meritless.
The ALJ addressed Dr. Healy's opinions as follows:
I find that the opinions of Dr. Healy (Ex. B20F, B30F) are mostly persuasive.
The opinions are adequately supported by his examination findings and mostly consistent with the opinion of Dr. Krishnamurthi. However, I do not find that the claimant can never kneel, stoop, kneel [sic], or crouch. This limitation is extreme. I also find persuasive the conclusions of Dr. Cincore (Ex. B4A). The opinions cited are consistent with the evidence of record showing normal neurological finding and fairly good response to treatment and the claimant's surgeries.R. 17.
The ALJ's statement at issue is likely attributable to administrative or typographical error.
Fourth, plaintiff contends that “Dr. Krishnamurthi's opinion is not substantial evidence and cannot support the ALJ's finding that the claimant can perform sedentary work.” Dkt. #32, at 17. Specifically, plaintiff argues that the ALJ's “nearly sole reliance” on Dr. Krishnamurthi's opinion was problematic because “exclusive reliance of [sic] a medical source statement by a non-examining physician” constitutes error. Id. However, “[a]lthough some courts have noted that under certain circumstances the opinion of a non-examining physician alone may be insufficient to support an RFC assessment, ” the ALJ did not formulate plaintiff's RFC based exclusively upon Dr. Krishnamurthi's opinion. See Thomas W. v. Comm'r of Soc. Sec., No. 20 Civ. 1010, 2021 WL 3513840, at *8 (W.D.N.Y. Aug. 10, 2021) (citation omitted). Plaintiff apparently focuses on the sentence immediately following, and incorporated within, the ALJ's RFC findings, to wit: “The above residual functional capacity is supported by the testimony of Subramaniam Krishnamurthi, M.D., the impartial medical expert who appea[r]ed and testified at the claimant's hearing.” R. 15. However, the decision makes clear that the RFC was based upon a review of the entire record, including objective testing, courses of treatment, subjective reports, the opinions of Dr. Krishnamurthi, Dr. Healy and Dr. Cincore and treatment notes. R. 15-18. As the ALJ noted, Dr. Krishnamurthi's opinion was mostly consistent with Dr. Healy's opinion and was supported by the record medical evidence (cited above) which reflected reduced ranges of motion and tenderness in the affected joints but largely intact neurological functioning. R. 17. Thus, contrary to plaintiff's contention, Dr. Krishnamurthi's opinion constitutes substantial evidence which supports the ALJ's RFC determination. See Rose o/b/o X.G.T.A. v. Berryhill, No. 18 Civ. 509, 2019 WL 2453352, at *3 (S.D.N.Y. Feb. 4, 2019) (“[W]hen supported by evidence in the record, the opinion of a nonexamining physician can also constitute substantial evidence.”), report and recommendation adopted, 2019 WL 2498279 (S.D.N.Y. June 17, 2019).
Finally, plaintiff argues that the ALJ erred because he did not find Dr. Amato's opinion persuasive despite its consistency with a “plethora of medical evidence” which, according to plaintiff, supports a finding that plaintiff is limited to less than a full range of sedentary work. Dkt. #32, at 12-15. As the ALJ noted, Dr. Amato's opinion is inconsistent with “the weight of the expert opinion in the record” and with objective medical evidence reflecting largely intact neurological functioning. R. 17. Although plaintiff points to evidence in the record which arguably supports her position, “the issue is not whether substantial evidence supports the claimant's argument, but ‘whether substantial evidence supports the ALJ's decision.”” Deborah R. v. Kijakazi, No. 20 Civ. 1235, 2022 WL 34458, at *3 (W.D.N.Y. Jan. 4, 2022) (italics in original) (quoting Bonet ex rel. T.B. v. Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013)). Here, as discussed above, substantial evidence supports the ALJ's decision. “So long as there is substantial evidence in the record to support an ALJ's decision, the court must sustain that decision even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the Commissioner's.” Mark E. v. Kijakazi, No. 20 Civ. 425, 2021 WL 4168590, at *6 (N.D.N.Y. Sept. 14, 2021) (quotation marks and citation omitted). Accordingly, plaintiff's argument is meritless.
VI. CONCLUSION
For the reasons set forth above, I respectfully recommend that plaintiff's motion for judgment on the pleadings be DENIED and that defendant's motion for judgment on the pleadings be GRANTED.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. See also FED. R. CIV. P. 6(a). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Nelson Stephen Roman, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Roman.