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remanding where ALJ ignored treating physician's opinion as to certain of the plaintiff's physical limitations; did not incorporate those limitations into the plaintiff's RFC; and did not provide any reasons for failing to do so
Summary of this case from Hogans v. Comm'r of Soc. Sec.Opinion
17-CV-6165 (JGK) (BCM)
03-01-2019
LINDA A. PATARO, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION TO THE HON. JOHN G. KOELTL
BARBARA MOSES, United States Magistrate Judge.
Plaintiff Linda A. Pataro filed this action pursuant to § 405(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), challenging a decision by the Commissioner of Social Security (Commissioner) denying her application for Disability Insurance Benefits (DIB). Now before the Court for report and recommendation are the parties' cross-motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). As discussed in more detail below, the Administrative Law Judge (ALJ) ignored the opinions of plaintiff's long-term treating physician, including his opinions concerning specific functional limitations that if credited would have changed the outcome of the ALJ's residual functional capacity (RFC) analysis. The ALJ also erred in his consideration of plaintiff's credibility. I therefore recommend, respectfully, that the Commissioner's motion be DENIED, that plaintiff's motion be GRANTED, and that the case be remanded to the Commissioner for further proceedings.
I. BACKGROUND
A. Procedural Background
Plaintiff filed an application for DIB on January 1, 2010, alleging disability since October 8, 2008. See Social Security Administration (SSA) Administrative Record (Dkt. No. 7) (hereinafter "R. ___.") at 12. The SSA denied that application on May 26, 2010. (Id.)
Plaintiff filed a second application for DIB on April 29, 2014, again alleging disability since October 8, 2008. (R. 153-54.) The agency denied that application on June 25, 2014. (R. 83-85.) On July 2, 2014, plaintiff requested a hearing before an ALJ (R. 95-96), which took place on January 21, 2016 before ALJ Kieran McCormack. (R. 37-71.)
In a written decision dated January 28, 2016 (Decision), ALJ McCormack dismissed plaintiff's claim as to the period October 8, 2008 - May 26, 2010 under the doctrine of res judicata, because it involved "the rights of the same claimant on the same facts and on the same issues that were decided in the final and binding determination dated May 26, 2010." (R. 12.) As to the period May 27, 2010 - December 31, 2012 (plaintiff's "date last insured" under the Act), the ALJ determined that plaintiff was not disabled within the meaning of the Act. (R. 13-20.)
On February 10, 2016, plaintiff requested Appeals Council review of the Decision. (R. 150.) The Appeals Council denied plaintiff's request on June 15, 2017 (R. 1), making the ALJ's determination final.
B. Personal Background
Plaintiff was born on October 3, 1962. (R. 18.) She completed a GED in 1980. (R. 190.) From approximately 1986 through 2003, plaintiff worked at a pharmacy as a cashier and then a manager. (R. 43-44, 191, 612.) From 2005 to October 1, 2008 - when she stopped working "because of my condition(s)" (R. 190) - plaintiff worked as a clerk in a delicatessen. (R. 45, 191.)
At some point in 2005, plaintiff fell off a porch and injured her neck. (R. 46.) On February 6, 2008, while working at the delicatessen, plaintiff fell over a box of rolls on a dolly, injuring her left knee, neck, and spine. (R. 46-47.) Plaintiff received workers' compensation benefits related to her February 6, 2008 injury. (R. 47.)
In a function report dated April 10, 2010, plaintiff wrote that she lived in a house with a disabled friend (whom she has since married). (R. 54, 153, 172.) She reported that she spent her days preparing simple meals, watching TV, and laying down. (R. 173-74.) She reported difficulty with personal care, stating that she did not bathe or shower without someone else there, for fear of falling or slipping, and could not wash her hair by herself. (Id.) Her sister and niece each sometimes visited to wash her hair. (R. 174.) Plaintiff also reported that she had trouble feeding herself due to difficulty holding a fork, but could do some washing of dishes, small loads of laundry, and very light cleaning. (R. 175.)
Plaintiff reported that she went outside 3-4 times a week, but that walking caused her "severe pain" and that she could not "go very far" before it became "too painful." (R. 175.) She reported that she could no longer do yardwork or swim, and that "playing w/ [her] granddaughter" was "painful." (R. 176.) She also wrote that it was "hard to hold cards do puzzles + crochet when my hands keep going numb." (Id.) She stated that she could not "lift, stand, walk, sit, climb stairs, kneel/squatting for periods of time due to severe pain," and that she had trouble "using hands to write, eat, s[c]issors due to numbness/pain in hands," and did not "talk long on phone because of pain when holding phone." (R. 177.) She reported using a cane "when walking/for balance around house." (R. 178.) She reported going to the food pantry every week for groceries. (R. 183.)
II. PLAINTIFF'S MEDICAL HISTORY
The administrative record contains documents dating from 2006 through 2016, including a number of medical records that either pre-date or post-date the period considered by the ALJ (May 27, 2010 - December 31, 2012). I focus primarily on the records within that period.
In some cases, evidence "bearing upon an applicant's condition subsequent to" a claimant's date last insured "is pertinent evidence in that it may disclose the severity and continuity of impairments existing before" that date "or may identify additional impairments which could reasonably be presumed to have been present and to have imposed limitations" before the date last insured. Lisa v. Sec'y of Dep't of Health & Human Servs. of U.S., 940 F.2d 40, 44 (2d Cir. 1991) (citations omitted).
A. Treatment Records
1. Dr. Shein
Orthopedic surgeon David Shein, M.D. treated plaintiff on 82 occasions between May 2006 and January 2016, including 25 visits between May 27, 2010 and December 31, 2012. Plaintiff's chief complaints in 2006 and 2007 were chronic neck and back pain, which she attributed to her 2005 injury, and carpal tunnel syndrome in her wrists. (See R. 457, 411, 454, 408, 407, 406, 405, 404, 402, 403, 401, 400.)
On February 19, 2008, Dr. Shein saw plaintiff after her second accident. (R. 399.) In his treatment notes from that visit, he wrote, "This is a worker's compensation case." (Id.) However, X-rays of plaintiff's ankle and left knee showed no bony injuries. (Id.) "At this stage," Dr. Shein advised plaintiff "to continue working as best she [could]." (Id.) On February 26, 2008, Dr. Shein again examined plaintiff and found that all motor units around the shoulder, elbow, wrist, and hand, as well as all lower limb motors, "were completely intact." (R. 398.) Plaintiff's gait pattern also remained intact. (Id.) Dr. Shein discussed with plaintiff that at "the present time her cervical spine problem [had] not precluded her from working." (Id.) He prescribed Valium, Vicodin, and Ambien for her ongoing "persistent discomfort." (Id.)
Valium (diazepam) is "a benzodiazepine derivative" indicated "for the management of anxiety disorders" and is a "useful adjunct for the relief of skeletal muscle spasm due to reflex spasm." RxList, "Valium," https://www.rxlist.com/valium-drug.htm (last accessed March 1, 2019). Vicodin (hydrocodone bitartrate and acetaminophen) is an opioid analgesic indicated "for the management of pain severe enough to require an opioid analgesic and for which alternative treatments are inadequate." RxList, "Vicodin," https://www.rxlist.com/vicodin-drug.htm (last accessed March 1, 2019). Ambien (zolpidem tartrate) is "indicated for the short-term treatment of insomnia characterized by difficulties with sleep initiation." RxList, "Ambien," https://www.rxlist.com/ambien-drug.htm (last accessed March 1, 2019).
On August 5, 2008, Dr. Shein observed that plaintiff's symptoms had been "progressively" getting worse "since her second fall." (R. 598.) He reviewed a recent MRI, which revealed "cervical spine stenosis in the midsection of the cervical spine at C4-C5, C5-C6, and C6-C7," as well as "bulging disk" at the "lower level of the cervical spine." (Id.) On October 28, 2008, Dr. Shein observed that although plaintiff remained "neurologically fully intact" (R. 595), she was "permanently totally disabled because of ongoing intractable neck ache." (Id.) Dr. Shein made similar notes on December 16, 2008, February 3, 2009, and March 3, 2008. (R. 594, 593, 592.)
On April 7, 2009, Dr. Shein concluded that plaintiff had "no need for surgical intervention." (R. 591; see also R. 587, R. 580.) He considered physical therapy, "but my fear is that physical therapy may irritate her and make her worse." (R. 591.) On May 26, 2009, and on several occasions thereafter, Dr. Shein observed that plaintiff was "unable to perform fine function with her upper limbs." (R. 590; see also R. 589, 588, 566.) On November 17, 2009, he opined that plaintiff did not present "a true fibromyalgia picture, but tending towards this." (R. 585.)
On March 2, 2010, Dr. Shein noted that, according to plaintiff, her life had "changed completely" as the result of her 2008 accident, and that she had become "basically housebound because she has great difficulty functioning and getting around because of her ongoing persistent neckache, mid-thoracic back pain, lumbar back pain," and associated symptoms. (R. 582.) On June 8, 2010, Dr. Shein wrote:
She is keen to go back to work. The only problem is that she is unable to stand for longer than 15 minutes and likewise she is unable to sit for any protracted period of time. She needs to continually mobilize herself due to facet arthropathic axial neck pain.(R. 579.) On December 7, 2010, plaintiff appeared "generally well." (R. 577.) Her tandem gait was normal, with a good range of movement of her cervical spine, and "no change in the neurological status of her upper or lower limbs." (Id.) Dr. Shein wrote that he was "keen on continuing her analgesic medication," including Percocet, Flexeril, Valium, and Ambien. (Id.) On February 15, 2011, Dr. Shein added a Lidoderm patch. (R 575.)
Percocet (oxycodone and acetaminophen) "is indicated for the relief of moderate to moderately severe pain." RxList, "Percocet," https://www.rxlist.com/percocet-drug.htm (last accessed March 1, 2019). Flexeril (cyclobenzaprine hcl) "is indicated as an adjunct to rest and physical therapy for relief of muscle spasm associated with acute, painful musculoskeletal conditions." RxList, "Flexeril," https://www.rxlist.com/flexeril-drug.htm (last accessed March 1, 2019).
Lidoderm (lidocaine) "is comprised of an adhesive material containing 5% lidocaine" and is "indicated for relief of pain associated with post-herpetic neuralgia." RxList, "Lidoderm," https://www.rxlist.com/lidoderm-drug.htm (last accessed March 1, 2019).
On April 5, 2011, Dr. Shein's notes reflect that plaintiff had been "in Florida recently and had a fall," causing her to fracture her distal radius, that is, her wrist. (R. 574.) Dr. Shein prescribed "routine" medication: "Lidoderm patch, Flexeril, Vicodin, as well as Naprosn and Ambien." (Id.)
Naprosyn (naproxen) is indicated for the signs and symptoms of arthritis, tendonitis, bursitis, and acute gout, and for the management of pain. RxList, "Naprosyn," https://www.rxlist.com/naprosyn-drug.htm (last accessed March 1, 2019).
On June 7, 2011, Dr. Shein reported that plaintiff had "dysesthesia in the index, middle, ring, and fifth fingers." (R. 572.) By August 2, 2011, Dr. Shein reported that his patient was having "difficulty transferring, getting in and out of a chair and in and out of the bath," and that "pain continue[d] to be a subjective problem for her." (R. 570.) Dr. Shein continued to assess her as "permanently totally disabled," ordered a transfer chair for use in the bath, and opined that "[a] neurological examination may be wise." (Id.) On September 6, 2011, Dr. Shein stated that "[p]icking up any object is problematic to her." (R. 569.) On October 4, 2011, he noted that "cleaning an oven" had set plaintiff back "three days with significant discomfort" (R. 568), and repeated that plaintiff needed a transfer seat as she had "difficulty even with simple bathing." (Id.)
On November 8, 2011, Dr. Shein examined plaintiff and again identified "no objective findings." (R. 567.) On January 3, 2012, in his "clinical diagnosis," Dr. Shein wrote: "This is all subjective symptomology. Patient remains convinced, because of her inability to deal with activities of daily living with regard to neckache and headache, that she remains permanently totally disabled at this stage." (R. 565.) Dr. Shein's notes over the following six months continued to note significant pain and functional limitations - requiring high doses of analgesics - but no objective evidence of neurological compromise. (R. 564, 563, 441, 361, 363.)
On September 4, 2012, Dr. Shein noted that plaintiff had "deteriorated in the sense that over the past few weeks she feels generally weak." (R. 364.) He observed that her most recent MRI, taken on August 10, 2012, showed "clear-cut evidence of cervical spine stenosis at C3-C4, C4-C5, and C5-C6," adding that plaintiff's spine may one day "need surgical intervention." (Id.) On October 2, 2012, Dr. Shein noted that plaintiff needed a cane to walk. (R. 367.)
On October 16, 2012, plaintiff brought in "new scans" which showed the presence of what looked to Dr. Shein "like significant changes in the midcervical region," in that there were "large bulging disks pressing up against the posterior longitudinal ligament and indenting the thecal sac significantly." (R. 440.) He wrote that plaintiff's 2012 MRIs "definitely appear[ed] . . . more significant" than those from 2008. (R. 440.) He assessed that plaintiff's cervical spine needed "careful watching." (Id.) On clinical examination, plaintiff's tandem gait was still negative; she got "on and off the examining couch with no difficulty"; her cervical spine "range of movement" was "reasonably well maintained with pain at extremes of motion"; all motors were "5/5"; and all jerks were normal. (Id.)
On November 13, 2012, however, Dr. Shein again reviewed the MRI scans which plaintiff "brought in with her," compared them to those from "a few years back," and found that the "recently-performed scans" showed "the presence of similar findings of C3 to C7 disk bulges with no significant findings of any neural foraminal or canal stenosis." (R. 394.) On examination, plaintiff had pain at extremes of motion "with all movements of her neck." (Id.) Dr. Shein opined that plaintiff was "mildly disabled on a permanent basis" (id.), and prescribed "continued conservative treatment." (Id.)
In a December 4, 2012 treatment note - the last such note before plaintiff's date last insured - Dr. Shein wrote: "All her symptoms are completely subjective. She has no objective findings. Although there is nothing objective to be found she has marked disability as a result of this and is unable to work." (R. 366.)
After plaintiff's date last insured, Dr. Shein's treating notes reveal that her condition deteriorated further. On January 10, 2013, plaintiff reported to Dr. Shein that she had toppled down the stairs and injured her left arm and wrist. (R. 553.) On May 29, 2013, Dr. Shein noted that plaintiff had "a recent fall" and "uses a cane at all times." (R. 330.) He planned to put in "an application to workers' comp" for plaintiff to receive "a home health aide to help with house chores 2-3 times a week." (Id.) On October 2, 2013, Dr. Shein noted that plaintiff "drops objects out of her hands." (R. 327.) However, there was still "no need for surgical intervention as her vertebral canal and neural foramina remain[ed] patent and wide open." (Id.) On November 6, 2013, Dr. Shein observed that while plaintiff's pains had "always involved predominantly the right arm," plaintiff was now "developing some dysfunction in the left arm and left hand with vague pins and needles on both the left and right." (R. 325.) In an addendum, Dr. Shein wrote that plaintiff's medications, which were "helping her originally," were "not proving at all efficacious at this present time." (R. 326.) On December 4, 2013, Dr. Shein wrote that plaintiff's "pain has reached the point where it affects her ability to wear clothing." (R. 324.)
On January 22, 2014, Dr. Shein's examination revealed that plaintiff's tandem gait was "questionable and when she perform[ed] a tandem gait it hurts her in her lumbar spine." (R. 323.) He wrote that what was "most concerning" to him was that "she is dropping objects out of her hands," and that "I have known this lady for many years and there has been definite subtle decrease in her functionality and nerve functionality all exacerbated by this injury." (Id.)
On February 12, 2014, Dr. Shein wrote that plaintiff was "traveling and going away to a resort to try and strengthen and exercise in warmer weather in Florida and I am encouraging her to do this." (R. 322.) On July 24, 2014, plaintiff reported another recent fall to Dr. Shein. (R. 542.) On May 6, 2015, Dr. Shein reported that plaintiff informed him of "sudden drop attacks," that if she walks "she suddenly falls," and that this "happens at any time." (R. 540.) According to Dr. Shein, plaintiff's "new, suddenly progressive neurological symptoms warrant[ed] repeat investigation." (Id.) On November 4, 2015, plaintiff told Dr. Shein she had another fall when her left knee buckled. (R. 535.) On November 18, 2015, Dr. Shein reviewed plaintiff's "entire history and record." (R. 622.) He wrote that "[r]ecurrent falls have occurred," and that plaintiff's "activity is getting less with time." (Id.) On December 16, 2015 - in the last substantive treating note from Dr. Shein in the record - he reported that plaintiff had yet another fall (R. 605), attributed her symptoms to "her whiplash injury," which "is beginning to cause stenotic features on her spinal vertebral canal resulting in myelopathic changes," and opined, again, that plaintiff remained "100% disabled." (R. 605.)
2. Dr. Koo
Internist Jimmy L. Koo, M.D. treated plaintiff for various acute sicknesses and injuries between 2011 and 2013. (R. 290-313.) On January 11, 2011, when Dr. Koo treated plaintiff for strep throat, plaintiff denied "constitutional, eye, ENT, respiratory, cardiovascular, GI, GU, musculoskeletal, neurological, endocrine, hematological, skin, or psychiatric symptoms unless otherwise noted with the exception of right eustachian tube dysfunction." (R. 290.)
Plaintiff next saw Dr. Koo on January 19, 2011 for a burn on her left wrist. (R. 292.) She again denied constitutional, musculoskeletal, or neurological symptoms, "with the exception of second-degree burn." (Id.) She saw Dr. Koo again on February 9, 2011, this time for chest discomfort, and once again denied symptoms, "with the exception of chest discomfort." (R. 293.)
On November 12, 2011, plaintiff saw Dr. Koo for breast pain. (R. 299.) Dr. Koo wrote that plaintiff "was mowing her lawn approximately 3 days ago" and the lawnmower "kicked up an object, possibly a rock, which flew and struck her into the right breast." (Id.) Plaintiff denied symptoms other than breast pain. (Id.)
Plaintiff next saw Dr. Koo on April 12, 2012 for cough and congestion. (R. 300.) She denied symptoms other than wheezing, cough, sore through, and nasal congestion, and Dr. Koo diagnosed her with an upper respiratory infection. (R. 300.) On December 29, 2012, plaintiff saw Dr. Koo to follow up on an emergency room visit resulting from fever and cough. (R. 301.)
Each time plaintiff visited Dr. Koo in 2011 and 2012, she denied "constitutional," "musculoskeletal," or "neurological" symptoms, except for those for which she sought treatment. (R. 290, 292, 293, 299, 300, 301.) Dr. Koo was aware, however, of the numerous medications plaintiff was prescribed for her back pain. For example, on February 9, 2011, Dr. Koo's notes listed as current medications "Aspirin, Ambien, Cozaar, Vicodin, Flexeril, Naprosyn, Lidoderm patch, and HCTZ." (R. 293.)
On December 9, 2013, during an office visit, Dr. Koo observed that plaintiff presented with "herniated discs." (R. 302.) He also listed, as another symptom, "back pain." (R. 303.) His "Assessment/Plan" included "[l]ow back pain associated with a spinal disorder other than radiculopathy or spinal stenosis." (R. 305.)
3. Open MRI of Yorktown
A July 31, 2008 MRI of plaintiff's cervical spine revealed a "focally extruded right-sided C5-C6 disc herniation causing right cord compression [with] mild central stenosis," disc herniation with mild to moderate stenosis at C6-C7, disc herniation causing impression on the right cord at C4-C5, disc bulging at C3-C4 through C6-C7, and C3-C4 "abutting the ventral cord." (R. 515.)
An August 10, 2012 MRI of plaintiff's cervical spine revealed "[s]table multilevel degenerative disc disease." (R. 416-17.) It also showed disc bulges and foraminal narrowing at C3-C4, C4-C5, C5-C6, and C6-C7, and disc bulges at C7-T1, T3-T4, and T4-T5. (Id.)
4. Empire Open MRI
An October 8, 2012 MRI of plaintiff's right hip showed fluid present "within the right greater trochanteric bursa consistent with bursitis." (R. 418.) Other results were normal. (Id.) MRIs of plaintiff's thoracic and cervical spine on the same day revealed "[m]ild discogenic changes throughout the thoracic spine" with no evidence of "thoracic disc herniation or compression upon the thoracic cord" (R. 419), and "straightening of the cervical lordosis" and disc herniation at "the C3-4, C4-5, C5-6 levels with compression upon the cord." (R. 420.)
5. Dr. Simon
On February 14, 2013, plaintiff underwent nerve conduction studies and an electromyography (EMG) under the care of orthopedist Robert M. Simon, M.D. (R. 278.) The tests revealed bilateral carpal tunnel syndrome; Dr. Simon was unable "to rule out cervical radiculitis due to presence of muscle spasm/pain in cervical paraspinal muscles." (R. 280.)
B. Medical Opinion Evidence
1. Dr. Shein
Beginning in late 2008, Dr. Shein routinely opined that plaintiff was "permanently" or "totally" disabled. (See, e.g., R. 595.) On certain occasions, he also commented on plaintiff's functional limitations and ability to perform specific work-related tasks.
On June 8, 2010, as noted above, Dr. Shein reported that plaintiff was "keen to go back to work," but was "unable to stand for longer than 15 minutes" or "sit for any prolonged period of time." (R. 579.) He stated that what would be "obviously ideal" was "a combination of seated clerical type work as well as getting up and mobilizing, but not carrying any object heavier than 20 pounds." (R. 579.) In an addendum, however, Dr. Shein stated that "this lady is actually unfit for work because of her ongoing severe persistent pain as noted in my previous report." (Id.)
On October 12, 2010, Dr. Shein encouraged plaintiff "to try some other work related issues where she would be flexed forward at her head and neck. This would require clerical work." (R. 578.) However, he still assessed that she was "permanently totally disabled." (Id.) On September 6, 2011, he reported that "[p]icking up any object" was "problematic" for plaintiff. (R. 569.) On February 7, 2012, his notes reflect that there were "times when [plaintiff] cannot function at all with the right upper limb." (R. 564.)
On July 10, 2012, Dr. Shein noted again that plaintiff was "unable to sit or stand for prolonged periods of time," and stated that she was "unable to do any work or pick up objects as a result of the pull of the trapezius muscles trying to stabilize the scapulae pulling her head into her neck." (R. 560.) In an addenda, he added that plaintiff remained "permanently totally disabled because of her inability to work, do housework, yardwork, or enjoy normal activities of daily living." (Id.) On October 16, 2012, Dr. Shein advised plaintiff "against any activity, picking up any heavy objects." (R. 440.)
On February 14, 2013, Dr. Shein completed a form concerning plaintiff's ability to work for workers' compensation purposes. (R. 335.) He listed as an objective finding that plaintiff had "ongoing neck pain with associated imbalance," indicated that plaintiff's complaints were consistent with her history of injury, stated that she could not return to work due to "pain," and assessed that she had a 100% temporary impairment. (R. 335.)
2. Dr. Mann
Orthopedic surgeon Ronald Mann, M.D. examined plaintiff for workers' compensation purposes on November 20, 2012. (R. 368.) Dr. Mann noted that plaintiff had "no physical therapy or injections or surgical treatment for" her injuries. (Id.) Dr. Mann reviewed the medical records of Dr. Shein and plaintiff's MRI scans from August and October, 2012. (Id.) On physical examination, he observed plaintiff to be "able to get on and off the examination table without difficulty" and to have a "normal gait pattern." (R. 370.)
Dr. Mann diagnosed plaintiff with "[c]ervical herniated disc and discogenic disease" and contusion of the left knee. (Id.) He noted that based on plaintiff's "significant MRI findings," she "may become a candidate for cervical decomposition and fusion at some future date." (Id.) Dr. Mann then opined that plaintiff could "return to work in a light duty capacity avoiding lifting more than 20 pounds," and that she should "avoid twisting and turning her neck left and right." (Id.)
Dr. Mann performed another examination of plaintiff on April 21, 2014. (R. 376-78.) Dr. Mann observed that plaintiff used a cane, but "was seen to walk normally without it." (R. 377.) He diagnosed cervical degenerative disease and contusion of the left knee, found that plaintiff had a "moderate, partial degree of disability," and opined that she was "capable of light duty capacity" but should "avoid lifting more than 20 pounds." (R. 378.)
3. Dr. Simon
On June 5, 2013, Dr. Simon completed a "Doctor's Progress Report" for plaintiff for workers' compensation purposes. (R. 275.) He diagnosed plaintiff with brachial neuritis. (Id.) He indicated that plaintiff's complaints were compatible with her history of injury and found that she had a "100%" temporary impairment. (R. 276.)
Brachial neuritis is "a form of peripheral neuropathy that affects the nerves going to the chest, shoulder, arm, and hand," and "peripheral neuropathy is a disease that causes pain or loss of function in the nerves that carry signals to and from the brain and spinal cord (the central nervous system) to other parts of the body." Johns Hopkins Medicine, "Brachial Neuritis," https://www.hopkinsmedicine.org/healthlibrary/conditions/nervous_system_disorders/brachial_neuritis_134,33 (last accessed March 1, 2019).
4. Dr. Seitzman
On June 23, 2014, state agency medical consultant Peter Seitzman, M.D., analyzed plaintiff's file for the Disability Determination Explanation (DDE) issued in connection with the SSA's initial denial of benefits to plaintiff. (R. 74-75.) Dr. Seitzman wrote that plaintiff did not "meet or equal the listings," could "lift/carry 20 lbs," and could "walk/stand/sit 6-8 hours per day." (R. 75.) The DDE also stated, however, that there were "no new allegations made for this claim and no new evidence sources . . . that would alter decision from 5/26/10." (Id.)
III. HEARING
On January 21, 2016, plaintiff appeared, with counsel, before ALJ McCormack. (R. 37.) Plaintiff testified by video. (R. 40.) Also present was vocational expert (VE) Frank Lindner, who testified by telephone. (Id.)
A. Plaintiff's Testimony
After introductory remarks, the ALJ questioned plaintiff about her work history. (R. 43.) Plaintiff testified that she worked at a pharmacy for seventeen years, including three years as a manager from 2000 to 2003. (R. 43-44.) After the pharmacy closed in 2003, plaintiff found work at delicatessen beginning in 2005, and worked there until October, 2008. (R. 45.) It was at the delicatessen where, on February 6, 2008, plaintiff injured her knee, neck, and "discs." (R. 46.)
Turning to her injuries, plaintiff testified: "Well, the discs are still herniated in my neck, and now they're herniated in my back. I have pain throughout the day and night. My knee has been bothering me more now. I've fallen several times in the last two years." (R. 47.) Plaintiff identified "going up and down the stairs" as particularly problematic. (Id.)
As to her neck, plaintiff testified that she "can't turn left to right," can't "bend down . . . to clean the bottom part" of her body, and had problems "carrying anything really heavier than a gallon of milk." (Id.) As to her back, she stated that she had pain that she thought came about as "part of the recent falls." (R. 49.) She also testified that she had carpal tunnel syndrome in both wrists, which resulted in her hands going numb "constantly" and kept her from braiding, crocheting, or using knives to prepare food. (R. 50). Plaintiff testified that her pain medications were working "to a point," but did not take the pain away completely. (R. 51.)
In response to questioning by her attorney, plaintiff testified that her medications make her drowsy, forgetful, occasionally incoherent, and fuzzy. (R. 51-52.) She stated that she attends medical appointments two or three times a month. (R. 53.) She testified that she could sit for 15 to 30 minutes, or could stand for 10 or 15 minutes, before getting pain. (R. 56.) She said she had used a cane for "three or four years, maybe five." (Id.) She testified that she was unable to use a computer without pain, was unable to use a phone except on speakerphone, and was unable to write with a pen or pencil for more than ten minutes. (R. 57.)
B. VE Testimony
The ALJ then proposed a first hypothetical to VE Lindner: an individual with plaintiff's "profile, age, education and work history," who was limited to sedentary work, except that the individual could "climb, balance, stoop, kneel, crouch and crawl on an occasional basis." (R. 63.) VE Lindner testified that this individual could not perform plaintiff's past relevant work. (Id.) He then testified that that certain skills from that past work - "[m]anaging others," "merchandising and sales," "working within a retail trade," and "ability to manage" - were transferrable (R. 64-65), and identified four sedentary jobs to which those skills would transfer: wholesaler II, merchandise manager, drapery and upholstery estimator, and stamp analyst. (R. 65-67.)
The ALJ then presented VE Lindner with a second hypothetical:
Assume an individual who has the same profile as Ms. Pataro. The individual can perform sedentary work. However, the individual . . . cannot climb ladders, ropes, scaffolds, cannot balance, cannot kneel or crawl and can climb ramps and stairs and stoop on a less than occasional basis.(R. 67.) VE Lindner again testified that such an individual could not perform plaintiff's past relevant work, but could also perform the jobs of wholesaler II, merchandise manager, and drapery and upholstery estimator. (R. 67-68.)
The ALJ then presented a third hypothetical:
The individual can lift 5 pounds occasionally. The individual can sit six hours in an eight-hour workday, stand and walk for two hours total in an eight-hour workday. And per the second hypothetical regarding the postural limitations, the individual cannot climb ladders, ropes, scaffolds, balance, kneel or crawl, can climb ramps and stairs and stoop on a less than occasional basis.(R. 68.) VE Lindner testified that such an individual could not perform plaintiff's past relevant work; that the skills acquired from plaintiff's past relevant work were not transferrable to "this residual functional capacity"; and that there were no jobs in the national economy that the individual in the ALJ's third hypothetical could perform. (R. 69.)
Counsel for plaintiff then asked VE Lindner whether, in "the examples that you provided," these individuals would "still be employable" if they were "to miss work two or three times a month due to medical appointments." (R. 69.) VE Lindner responded that no jobs would be available for such individuals. (Id.)
IV. THE ALJ'S DECISION
A. Standards
A five-step sequential evaluation process is used pursuant to 20 C.F.R. § 404.1520(a) to determine whether a claimant over the age of 18 is disabled within the meaning of the Act. (R. 18-20.) The Second Circuit has described the sequence as follows:
First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a "severe impairment" that significantly limits her physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1 . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (citation omitted). If it is determined that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not progress to the next step. 20 C.F.R. § 404.1520(a)(4). A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden at the fifth step. See Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Therefore, to support a finding that the claimant is not disabled at step five, the Commissioner must offer evidence demonstrating that other work exists in significant numbers in the national and local economies that the claimant can perform, given the claimant's residual functional capacity, age, education, and past relevant work experience. See 20 C.F.R. §§ 404.1520(g); 404.1560(c).
B. Application
Before turning to the required five-step test, the ALJ made two preliminary determinations. First, he dismissed plaintiff's "request for hearing which pertains to the period from October 8, 2008 through May 26, 2010" under the doctrine of res judicata. (R. 12.) He noted that plaintiff had filed an application on January 1, 2010, alleging "the same onset date as alleged in the current application," and that the earlier application was "denied initially on May 26, 2010." (Id.) The ALJ found no basis for reopening that application. (Id.) Therefore, the ALJ limited "the issues to be decided . . . to the unadjudicated period beginning May 27, 2010." (Id.)
Second, the ALJ found that plaintiff had "acquired sufficient quarters of coverage to remain insured through December 31, 2012," which was her date last insured. (R. 13.) Thus, the ALJ held that plaintiff had to "establish disability on or before that date in order to be entitled to a period of disability and disability insurance benefits." (Id.)
Turning to the first step of the five-step evaluation process, the ALJ found that plaintiff "did not engage in substantial gainful activity during the period from May 27, 2010 . . . through her date last insured of December 31, 2012." (R. 15.)
At step two, the ALJ found that plaintiff had the severe impairments of "cervical radiculopathy, degenerative disc disease (DDD) of the cervical spine and bursitis of the right hip." (R. 15.)
At step three, the ALJ found that plaintiff "did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." (R. 15.) He considered Listings 1.02 (major joint dysfunction) and 1.04 (disorders of the spine). (Id.)
Before proceeding to step four, the ALJ found that plaintiff, through her date last insured, had the RFC "to perform sedentary work as defined in 20 CFR 404.1567(a) except that the claimant could not climb ladders, ropes, or scaffolds; or balance, kneel, or crawl," but "could climb ramps and stairs and stoop on a less than occasional basis." (R. 15.) In determining plaintiff's RFC, the ALJ did not include any limitations (nor make any findings) concerning her ability to sit, stand, or walk.
Sedentary work "involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 404.1567(a).
In determining plaintiff's RFC, the ALJ found her allegations of pain and functional limitations were "not supported by the evidence of record," and concluded that she was able to "do a wide range" of activities of daily living (ADLs), noting that she mowed the lawn in 2011 and traveled to Florida. (R. 17.)
The ALJ also weighed the opinion evidence. He assigned "some weight" to the opinion of Dr. Seitzman, stating that "it appear[ed] that Dr. Seitzman based his determination on a prior claim, without considering progression of the claimant's degenerative conditions or the effect of her obesity on her musculoskeletal impairments." (R. 17.)
The ALJ assigned "little weight" to all of the remaining medical opinions in the record, calling them "Workers' Compensation" opinions and noting that "they were rendered within the purview of Workers' Compensation (WC) law and are not binding on the Social Security Administration." (R. 17.) The ALJ explained that "many of these opinions state that the claimant is disabled," which is an opinion "clearly reserved to the Commissioner." (Id.)
The ALJ provided no other rationale for the weight assigned to, and no other analysis of, the opinions of Drs. Shein, Mann, and Simon.
At step four, on the basis of his RFC determination and VE Lindner's testimony, the ALJ found that the plaintiff was unable "to perform any past relevant work." (R. 18.)
At step five, the ALJ found that, considering plaintiff's "age, education, work experience, and residual functional capacity, [she] had acquired work skills from past relevant work that were transferable to other occupations with jobs existing in significant numbers in the national economy." (R. 19.) These jobs included wholesaler II, merchandise manager, and drapery estimator. The ALJ therefore found that plaintiff was not under a disability at any time from May 27, 2010 through December 31, 2012. (Dkt. No. 20.)
V. ANALYSIS
Both parties have moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). To prevail on such a motion, a party must establish that no material facts are in dispute and that judgment must be granted to that party as a matter of law. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988); Claudio v. Commissioner of Social Security, 2017 WL 111741, at *1 (S.D.N.Y. Jan. 11, 2017).
The law governing cases such as this is clear. The reviewing court "may set aside an ALJ's decision only where it is based upon legal error or where its factual findings are not supported by substantial evidence." McClean v. Astrue, 650 F. Supp. 2d 223, 226 (E.D.N.Y. 2009) (citing Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998)); accord Longbardi v. Astrue, 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). Thus, the district court must first decide whether the Commissioner applied the correct legal standards. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008), report and recommendation adopted, 2008 WL 4449357 (S.D.N.Y. Oct. 1, 2008). If there was no legal error, the court must determine whether the ALJ's decision was supported by substantial evidence. Tejada, 167 F.3d at 773; Calvello, 2008 WL 4452359, at *8.
In this case, plaintiff makes three principal arguments. First, she asserts that the ALJ "erred by barring Plaintiff's request for a hearing on the basis of res judicata." Pl. Mem. dated February 2, 2018 (Dkt. No. 9), at 8-9. Second, plaintiff argues that the ALJ failed "to conduct a proper step 3 analysis" when he determined that plaintiff's impairments did not meet or equal the criteria of Listings 1.02 and 1.04. Id. at 9-10. Third, plaintiff argues that the ALJ failed to accord proper weight to the opinion of plaintiff's treating physician Dr. Shein. Id. at 11-12.
I agree with plaintiff that the ALJ violated the treating physician rule, albeit for different reasons than those raised by plaintiff. I also find that the ALJ erred in finding the plaintiff not credible. I therefore conclude that the ALJ's RFC determination was not supported by substantial evidence, and that the case should be remanded for further proceedings.
A. Legal Standards
1. Res Judicata
"When an administrative agency is acting in a judicial capacity and resolved disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose." United States v. Utah Const. & Min. Co., 384 U.S. 394, 422 (1966); see also Stellacci v. Barnhart, 2003 WL 22801554, at *5 (S.D.N.Y. Nov. 24, 2003) ("The application of administrative res judicata has been recognized and enforced by the Supreme Court, and the Second Circuit has deemed it appropriate in Social Security cases."). An ALJ may find that res judicata applies where the Social Security Administration has "made a previous determination or decision" about a claimant's rights "on the same facts and on the same issue or issues, and this previous determination or decision has become final by either administrative or judicial action." 20 C.F.R. § 404.957. See also Dunn v. Astrue, 2010 WL 376390, at *3 (W.D.N.Y. Jan. 27, 2010) ("The Commissioner may invoke res judicata to a claim for social security benefits in cases where the claimant seeks to reopen a claim that has already had a final decision.").
The SSA's "initial determination" on an application is "binding" unless the claimant requests "reconsideration within the stated time period" or the Commissioner revises her initial determination. 20 C.F.R. § 404.905. A final determination may be reopened and revised either on the Commissioner's initiative or on request of a claimant. 20 C.F.R. § 404.987. Where, as here, a request is made more than 12 months but less than four years after a final determination, it may be reopened only for "good cause." 20 C.F.R. § 404.988(b). As relevant here, "good cause" requires "[n]ew and material evidence" or a demonstration that "the evidence that was considered in making the [prior] determination or decision clearly shows on its face that an error was made." 20 C.F.R. § 404.989.
The Commissioner's decision not to reopen a prior determination is generally not subject to judicial review. Califano v. Sanders, 430 U.S. 99, 107-08 (1977). "Nevertheless, federal courts may review the Commissioner's decision not to reopen a disability application in two circumstances: where the Commissioner has constructively reopened the case and where the claimant has been denied due process." Byam v. Barnhart, 336 F.3d 172, 180 (2d Cir. 2003). "If the Commissioner reviews the entire record and renders a decision on the merits, the earlier decision will be deemed to have been reopened, and any claim of administrative res judicata to have been waived and thus, the claim is . . . subject to judicial review." Id. (citations and quotation marks omitted).
2. Regulatory Listings
"For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original). The claimant bears the burden to make that showing. Kaczkowski v. Colvin, 2016 WL 5922768, at *22 (S.D.N.Y. Oct. 11, 2016) (citing Sullivan, 493 U.S. at 530). "To satisfy this burden, a claimant must show abnormal physical findings that must be determined on the basis of objective observation during the examination and not simply a report of the individual's allegation." Urbanak v. Berryhill, 2018 WL 3750513, at *19 (S.D.N.Y. July 18, 2018) (citations and quotation marks omitted), report and recommendation adopted, 2018 WL 3745667 (S.D.N.Y. Aug. 7, 2018).
The question for this Court is whether substantial evidence supported the ALJ's conclusion that plaintiff's impairments do not meet or medically equal the impairments listed in the regulations. Johnson v. Astrue, 563 F. Supp. 2d 444, 455 (S.D.N.Y. 2008). Even the "absence of an express rationale" from the ALJ does not prevent a court "from upholding the ALJ's determination regarding appellant's claimed listed impairments," if "portions of the ALJ's decision and the evidence before him indicate that his conclusion was supported by substantial evidence." Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982).
3. The Treating Physician Rule
When weighing and analyzing opinion evidence, the ALJ must give controlling weight to the opinion of the claimant's treating physician, so long as that opinion is well-supported by medical findings and is not inconsistent with other evidence in the record. 20 C.F.R. § 404.1527(c)(2) (2012). The rule recognizes that treating physicians are "most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. § 404.1527(c)(2) (2012); see also Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983) ("The opinion of a treating physician is accorded extra weight because the continuity of treatment he provides and the doctor/patient relationship he develops place him in a unique position to make a complete and accurate diagnosis of his patient.").
20 C.F.R. § 404.1527 was amended effective March 27, 2017. In this Report and Recommendation, I quote and I apply the regulations as they existed at the time of the ALJ's Decision. Citations to these regulations - and to other regulations that have since been amended - include the date of the version that was in effect at that time.
In this Circuit, the treating physician rule is robust, though not unassailable:
Before an ALJ can give a treating physician's opinion less than controlling weight, the ALJ must apply various factors to determine the amount of weight the opinion should be given. These factors include: (1) the length of the treatment relationship and the frequency of examination, (2) the nature and extent of the treatment relationship, (3) the medical support for the treating physician's opinion, (4) the consistency of the opinion with the record as a whole, (5) the physician's level of specialization in the area, and (6) other factors that tend to support or contradict the opinion.Norman v. Astrue, 912 F. Supp. 2d 33, 73 (S.D.N.Y. 2012); see also 20 C.F.R. § 404.1527(c)(2) (2012).
Under this standard, the ALJ may decline to afford the opinion of a treating physician controlling weight where "the treating physician issued opinions that are not consistent with other substantial evidence in the record." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). "When other substantial evidence in the record conflicts with the treating physician's opinion . . . that opinion will not be deemed controlling. And the less consistent that opinion is with the record as a whole, the less weight it will be given." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). See also 20 C.F.R. § 404.1527(c)(4) (2012) ("Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that medical opinion.").
If the ALJ does not afford controlling weight to the treating physician's opinion, he must provide "good reasons" for that decision. Halloran, 362 F.3d at 32-33 (citing Schaal, 134 F.3d at 505). See also 20 C.F.R. § 404.1527(c)(2) (2012) ("We will always give good reasons in our . . . decision for the weight we give your treating source's medical opinion.").
4. Credibility
"An ALJ's credibility finding as to the claimant's disability is entitled to deference by a reviewing court." Rivera v. Berryhill, 2018 WL 4328203, at *10 (S.D.N.Y. Sept. 11, 2018) (citing Osorio v. Barnhart, 2006 WL 1464193, at *6 (S.D.N.Y. May 30, 2006)). "[C]ourts must show special deference to an ALJ's credibility determinations because the ALJ had the opportunity to observe plaintiff's demeanor while [the plaintiff was] testifying." Marquez v. Colvin, 2013 WL 5568718, at *7 (S.D.N.Y. Oct. 9, 2013). Thus, the court will not "second-guess" the ALJ's credibility finding "where the ALJ identified specific record-based reasons for his ruling," Stanton v. Astrue, 370 F. App'x 231, 234 (2d Cir. 2010), and where his determination is supported by substantial evidence. Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2012).
Where an ALJ rejects witness testimony as not credible, however, the basis for the finding must be set forth "with sufficient specificity to permit intelligible plenary review of the record." Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988) (citing Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 643 (2d Cir. 1983)). Further, an ALJ's credibility determination - like an ALJ's evaluation of a treating physician opinion - cannot be based on unsupported interpretations of raw medical evidence or mischaracterizations of the record. Henderson v. Berryhill, 312 F. Supp. 3d 364, 369 (W.D.N.Y. 2018).
The regulations provide a two-step process for evaluating the credibility of a claimant's assertions of pain and other limitations:
At the first step, the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged. 20 C.F.R. § 404.1529(b). That requirement stems from the fact that subjective assertions of pain alone cannot ground a finding of disability. 20 C.F.R. § 404.1529(a). If the claimant does suffer from such an impairment, at the second step, the ALJ must consider "the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence" of record. Id.Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010).
In considering a claimant's symptoms of pain, an ALJ must also consider a claimant's "daily activities"; the "location, duration, frequency, and intensity" of her pain; any precipitating or aggravating factors; the "type, dosage, effectiveness, and side effects of any medication" taken to alleviate the pain; "treatment" other than medication received by the claimant; any "measures" used by a claimant to relieve her pain or other symptoms; and any other factors concerning the claimant's "functional limitations and restrictions due to pain or other symptoms." 20 C.F.R. § 404.1529(c)(3) (2011); see also Lugo v. Barnhart, 2008 WL 515927, at *22 (S.D.N.Y. Feb. 8, 2008) ("The ALJ is of course free to discount [the claimant's] testimony if he finds it not to be credible, but in assessing that credibility question he must consider a variety of factors specified in the SSA regulations, and consistent with the general requirement for a clear explanation of his analysis, he must sufficiently articulate his reasoning to demonstrate his compliance with the regulation."), report and recommendation adopted, 2008 WL 516796 (S.D.N.Y. Feb. 27, 2008).
B. Application of Standards
1. The ALJ Did Not Err in Applying Res Judicata
The ALJ's application of res judicata is not subject to judicial review. Plaintiff does not argue that she was denied due process, and there is nothing in the record that suggests she was. Further, the ALJ did not "constructively reopen" plaintiff's first application merely by mentioning it before rendering a decision on the merits of her second application. See Hussain v. Comm'r of Soc. Sec., 2014 WL 4230585, at *13 (S.D.N.Y. Aug. 27, 2014) (ALJ did not constructively reopen the record when he considered evidence concerning the period underlying the first application as "background information" relevant to the second application), report and recommendation adopted, 2014 WL 5089583 (S.D.N.Y. Sept. 25, 2014).
Even if the ALJ's res judicata determination were subject to judicial review, I would find no error. Plaintiff has identified no "new and material evidence," pertaining to the prior application and no clear error on the face of the prior determination, as required by 20 C.F.R. § 404.989. There is thus no reason to disturb the ALJ's finding that there was "no basis" to reopen plaintiff's prior application. (R. 12.)
Finally, even if the ALJ's res judicata determination were error, that error would be harmless. Plaintiff's objective medical records pre-dating May 27, 2010 are either consistent with or reflect less severe impairments than those after that date - which the ALJ did consider. (Compare, e.g., R. 416-17 with R. 515.) Thus, plaintiff has identified no reason to believe "that the ALJ's res judicata ruling . . . was anything but harmless error." Kobetic v. Comm'r of Soc. Sec., 114 F. App'x 171, 173 (6th Cir. 2004) (finding ALJ's error resulting in a failure to consider an eligible time period harmless); Plummer v. Berryhill, 747 F. App'x 631, 632 (9th Cir. 2019) (finding ALJ's application of res judicata harmless).
2. Substantial Evidence Supported the ALJ's Step Three Determination
Nor did the ALJ err in determining that plaintiff did not meet or equal the severity of Listings 1.02 and 1.04. (R. 15.)
a. Listing 1.02
Listings 1.02 provides:
1.02 Major dysfunction of a joint(s) (due to any cause): Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With:20 C.F.R. § Pt. 404, Subpt. P, App. 1 (Aug. 12, 2015).
A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b; or
B. Involvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively, as defined in 1.00B2c. . . .
The ALJ found that plaintiff's impairment did not meet Listing 1.02 because the "record [failed to] document involvement of a major peripheral joint in each upper extremity resulting in an inability to perform fine and gross movements effectively." (R. 15.) Plaintiff argues that this was error because she had an "inability to perform fine and gross movements effectively [pursuant] to Listing 1.02." Pl. Mem. at 10. Plaintiff relies on Dr. Shein's notes (all post-dating plaintiff's date last insured) reflecting that plaintiff regularly dropped objects out of her hands, experienced numbness in her hands, and was incapable of housework or yard work. Id. (citing R. 323, 327, 328).
The ALJ's finding was supported by substantial evidence. The record does not reflect "limitation of motion" of "the affected joint(s)" prior to plaintiffs' date last insured. (See R. 385, 439.) Moreover, the record does not demonstrate an inability to ambulate effectively, as defined by the regulations. While Dr. Shein noted plaintiff's use of a cane prior to her date last insured (R. 367), nothing in the record reflects an "an extreme limitation of the ability to walk" that was so severe as to require "the use of a hand-held assistive device(s) that limits the functioning of both upper extremities." 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (Aug. 12, 2015) (emphasis added).
Finally, the record does not demonstrate involvement "of one major peripheral joint in each upper extremity [] resulting in inability to perform fine and gross movements effectively," as defined by the regulations. 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (Aug. 12, 2015) (emphasis added). The "[i]nability to perform fine and gross movements effectively means an extreme loss of function of both upper extremities." Id. As late as June 12, 2012, on neurological examination, Dr. Shein found that all of plaintiff's "motors around the shoulder, elbow, wrist, and hand" were "5/5." (R. 561.) Similarly, Dr. Mann's examination on November 20, 2012 revealed that plaintiff was "[n]eurologically intact in both upper extremities with deep tendon reflexes, sensation and motor strength intact in the upper extremities." (R. 370.) Thus, while plaintiff identified limitations in her ability to complete certain movements (R. 172-183), substantial evidence supported the ALJ's determination that plaintiff did not equal Listing 1.02 as of her date last insured.
b. Listing 1.04
Listing 1.04 provides:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine); or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours; or20 C.F.R. § Pt. 404, Subpt. P, App. 1 (Aug. 12, 2015).
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.
The ALJ found Listing 1.04 inapplicable because plaintiff's impairments "did not result in compromise of a nerve root or the spinal cord." (Id.) Plaintiff argues that the ALJ erred by failing to obtain medical expert testimony relating to Listing 1.04; failing to discuss the medical evidence in the record; and failing to acknowledge plaintiff's October 8, 2012 MRI. Pl. Mem. at 10.
Once again, the ALJ's finding was supported by substantial evidence. An ALJ's decision to seek medical expert testimony at step three is discretionary. 20 CFR 404.1527(e)(2)(iii) (2012); Urbanak, 2018 WL 3750513, at *23. Moreover, the ALJ's failure to address the medical evidence generally - or the October 8, 2012 MRI specifically - does not justify remand, because even where "the ALJ fails to explain his conclusion at step three, his analysis may be upheld where other portions of the decision and other clearly credible evidence demonstrate that the conclusion is supported by substantial evidence." Martinez v. Comm'r of Soc. Sec., 2017 WL 9802837, at *18 (S.D.N.Y. Sept. 19, 2017) (quotation marks and citations omitted), report and recommendation adopted, 2018 WL 1474405 (S.D.N.Y. Mar. 26, 2018).
In this case, the objective medical evidence supports the ALJ's Listing 1.04 determination. There is no evidence of spinal arachnoiditis, lumbar spinal stenosis resulting in pseudoclaudication, or nerve root compression in the record. See Sanders v. Comm'r of Soc. Sec., 506 F. App'x 74, 76 (2d Cir. 2012) (upholding ALJ's Listing 1.04 determination where no doctor diagnosed the claimant "with nerve root compression."). Dr. Shein's notes dated March 7, 2013 suggest that he was concerned about nerve root compression in the "years to come," but not at that time. (R. 331.) Moreover, examinations during the relevant period most often found plaintiff to have normal reflexes, gait, and full motor strength. (R. 363, 366, 370, 394, 575, 572.) Thus, even if plaintiff had shown nerve root compression, substantial evidence would support the ALJ's Listing 1.04 determination.
3. The ALJ Violated the Treating Physician Rule
I agree with the plaintiff that the ALJ erred in assigning "little" weight to "all of the Workers' Compensation (WC) opinions throughout the record" - including Dr. Shein's opinions - on the sole basis that he rendered them "within the purview of Workers' Compensation (WC) law." (R. 17.) The ALJ was correct in disregarding Dr. Shein's ultimate conclusions as to whether, and to what extent, plaintiff was "disabled." See, e.g., DeJesus v. Chater, 899 F. Supp. 1171, 1177 (S.D.N.Y. 1995) (Koeltl, J.) ("[F]indings of disability for workers' compensation purposes are of limited utility for disability purposes under the Social Security Act."). However, an opinion about a claimant's functional assessment, as opposed to a general disability conclusion, should not be rejected simply because of the context in which the opinion is rendered. See Urbanak, 2018 WL 3750513, at *25 ("The ALJ properly afforded 'little weight' to Dr. Jacobs' opinions that plaintiff was 100% disabled for purposes of workers' compensation and 'great weight' to his functional assessments and observations of plaintiff during numerous physical examinations."); see also Sepa v. Colvin, 2016 WL 7442658, at *6 (S.D.N.Y. Dec. 27, 2016) (Koeltl, J.) ("Although it is true that the ultimate determination of disability is reserved for the Commissioner . . . Dr. Greene plainly conveyed functional limitations by stating that Sepa could not perform the functions of a firefighter and was otherwise unable to work.").
That is especially so when an opinion comes from a long-time treating physician like Dr. Shein, who saw plaintiff on a regular basis for ten years (R. 457, 631), beginning long before he was asked to provide opinions for workers' compensation purposes. See 20 C.F.R. § 404.1527(c)(2)(ii) (2012) ("Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion.").
Most relevant here, Dr. Shein opined on June 8, 2010 that plaintiff was "unable to stand for longer than 15 minutes" and "unable to sit for any prolonged period of time" (R. 579), and on July 10, 2012 that plaintiff was "unable to sit or stand for prolonged periods of time." (R. 560.) These observations, made prior to plaintiff's date last insured, were consistent with her hearing testimony (that she could sit for 15 to 30 minutes and stand for 10 or 15 minutes) (R. 55-56), and her 2010 Function Report, in which plaintiff wrote that she could not "stand/sit" long enough to do various chores (R. 175), and that "[t]here is no happy medium. I cannot sit, stand, or walk without constant pain." (R. 183.)
These observations appear in the "history" section of Dr. Shein's treatment notes. To the extent Dr. Shein's statements concerning plaintiff's sit/stand/walk limitations are ambiguous as to whether they are his opinions or simply the self-report of the plaintiff, it was the ALJ's duty to seek out more information to resolve that ambiguity. See Moreira v. Colvin, 2014 WL 4634296, at *6 (S.D.N.Y. Sept. 15, 2014) (Koeltl, J.); Foster v. Berryhill, 2017 WL 3129801, at *5 (S.D.N.Y. July 21, 2017) (Koeltl, J.)
The ALJ simply ignored Dr. Shein's opinions as to plaintiff's ability to sit, stand, and walk. He did not incorporate any of these limitations in plaintiff's RFC, and did not give good reasons (or any reasons) for failing to do so. To the contrary: the ALJ stated, erroneously, that his RFC determination was supported by "the lack of opinions from acceptable medical sources stating greater limitations than those noted above." (R. 18.) This was error. See Krupczyk v. Comm'r of Soc. Sec., 342 F. Supp. 3d 352, 360 (W.D.N.Y. 2018) ("The record further shows that Dr. Hucknell's treatment of Plaintiff was continuous and significant. Accordingly, good reasons for failing to adopt his opinion as to several work-related limitations [beyond 'the conclusory statement' that 'the New York State and federal standards on disability are different'] were required.")
Moreover, the ALJ's error was not harmless. See Walzer v. Chater, 1995 WL 791963, at *9 (S.D.N.Y. Sept. 26, 1995) (an error is harmless where consideration of a physician's opinion "would not have changed the outcome of the ALJ's decision"). Social Security Ruling 96-6p provides that limitations to an individual's ability to sit or stand may erode the occupational base of sedentary work available to that individual. See SSR 96-9p, 1996 WL 374185, at *6-7 (July 2, 1996) (noting that a claimant's inability to stand or walk for two hours or sit for six hours during a standard eight-hour work day could erode the unskilled sedentary occupational base significantly, as would a "need to alternate the required sitting of sedentary work by standing (and, possibly, walking) periodically"). As a result, an ALJ's RFC assessment must be "specific as to the frequency of the individual's need to alternate sitting and standing." Id.; see also Rosario v. Colvin, 2016 WL 2342008, at *3 (W.D.N.Y. May 4, 2016) (same). Where an ALJ fails to so specify, remand is appropriate. Gavazzi v. Berryhill, 687 F. App'x 98, 100-01 (2d Cir. 2017); Falk v. Colvin, 2016 WL 4411423, at *7 (S.D.N.Y. Aug. 18, 2016); Delacruz v. Astrue, 2011 WL 6425109, at *23, 23 n.22 (S.D.N.Y. Dec. 1, 2011), report and recommendation adopted, 2011 WL 6425101 (S.D.N.Y. Dec. 21, 2011) (Koeltl, J.).
Nor can the Court determine from its review of the Department of Labor's Dictionary of Occupational Titles (DICOT) whether an individual with a need to alternate sitting and standing could perform the jobs identified by VE Lindner. See DICOT 185.157-018 WHOLESALER II; DICOT 185.167-034 MANAGER, MERCHANDISE; DICOT 299.387-010 DRAPERY AND UPHOLSTERY ESTIMATOR.
Because the ALJ improperly ignored the opinion of plaintiff's treating physician as to her functional limitations, and because those limitations, if credited, would have changed the outcome of his RFC determination, this case should be remanded.
4. The ALJ Erred in Determining Plaintiff's Credibility
For similar reasons, I conclude that the ALJ erred in finding that the plaintiff's "statements concerning the intensity, persistence and limiting effects" of her symptoms were "not entirely credible." (R. 17.) The ALJ discounted plaintiff's credibility based on (a) evidence that plaintiff mowed her lawn in 2011, despite complaints of being unable to do any yardwork; (b) Dr. Koo's note that plaintiff denied "constitutional, musculoskeletal or neurological symptoms" in December, 2012; (c) plaintiff's travel to Florida "two months later"; (d) the apparent conflict between plaintiff's reports of knee pain and various doctors' observations that plaintiff had "no difficulty walking or balance problems" and was "neurologically intact with full strength and good functioning" in the upper and lower extremities; and (e) the fact that plaintiff has "never been considered a surgical candidate or even been referred for physical therapy for her impairments." (R. 17.)
In determining a claimant's credibility, an ALJ must fairly consider all of the relevant facts in the record, not just those that are arguably consistent with the credibility conclusion he wishes to draw. See Raja v. Astrue, 2012 WL 1887131, at *6 (S.D.N.Y. May 23, 2012) (quoting Murphy v. Barnhart, 2003 WL 470572, at *10 (S.D.N.Y. Jan. 21, 2003) ("In assessing the claimant's credibility, the ALJ must consider all of the evidence in the record and give specific reasons for the weight accorded to the claimant's testimony.").
"Federal courts reviewing administrative social security decisions decry 'cherry picking' of relevance evidence, which may be defined as inappropriately crediting evidence that supports administrative conclusions while disregarding differing evidence from the same source." Artinian v. Berryhill, 2018 WL 401186, at *8 (E.D.N.Y. Jan. 12, 2018); see also Annabi v. Berryhill, 2018 WL 1609271, at *16-19 (S.D.N.Y. Mar. 30, 2018) (remanding where ALJ "tended to highlight" the opinion and non-opinion evidence "that supported his own view while ignoring evidence suggestive of disability"); Cautillo v. Berryhill, 2018 WL 1305717, at *30 (S.D.N.Y. Mar. 12, 2018) (remanding where "the evidence that the ALJ chose to discuss in his credibility evaluation did not accurately portray the medical record as a whole"); Eldridge v. Colvin, 2016 WL 11484451, at *14-15 (S.D.N.Y. June 29, 2016), report and recommendation adopted, 2016 WL 6534258 (S.D.N.Y. Nov. 2, 2016) (remanding where "[t]he ALJ's analysis of Plaintiff's credibility . . . misconstrues the evidence and reflects a failure to consider facts that are contrary to the ALJ's conclusion that Plaintiff is not credible"). Here, the ALJ improperly ignored significant record evidence suggesting that plaintiff's testimony was credible.
For example, the ALJ did not discuss plaintiff's work record (see R. 43, 191), which, as plaintiff argues (Pl. Mem. at 4), should have entitled her "to substantial credibility when claiming an inability to work because of a disability." Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983). Plaintiff worked at a pharmacy for 17 years, advancing from cashier to manager, before it was closed in 2003. (R. 43-45.) While a plaintiff's work history "is just one of many factors that the ALJ is instructed to consider in weighing the credibility of claimant testimony," Schaal, 134 F.3d at 502, it is one that the ALJ should have considered here. See Eldridge, 2016 WL 11484451, at *14 (ALJ should have considered "whether Plaintiff's 14-year work history entitles her to substantial credibility"); Romanelli v. Astrue, 2013 WL 1232341, at *11 (E.D.N.Y. Mar. 26, 2013) (same; 17-year work history); Hilton v. Comm'r of Soc. Sec., 2002 WL 32152290, at *10 (D. Conn. Nov. 25, 2002) (instructing ALJ to consider plaintiff's 23-year work record in assessing his credibility on remand).
She also attempted (unsuccessfully) to return to work in 2015. (R. 608-09.)
Moreover, in discussing plaintiff's daily activities, the ALJ improperly relied on a single episode - her effort to mow her lawn in 2011, during which she injured herself (R. 299) - without acknowledging the significant limitations she reported in connection with her ability to take care of her own personal hygiene, clean her home, go grocery shopping, or pick up her granddaughter. (R. 173, 175, 183.) See Eldridge, 2016 WL 11484451, at *15 (quoting Hilsdorf v. Comm'r of Soc. Sec., 724 F. Supp. 2d 330, 351-52 (E.D.N.Y. 2010) ("The ALJ may not cite to Plaintiff's activities while 'wholly ignor[ing] the qualifications that Plaintiff placed on [her] ability to engage in [those] activities.'"). As the Second Circuit has stated, "a claimant need not be an invalid to be found disabled." Williams v. Bowen, 859 F.2d 255, 260 (2d Cir. 1988).
Similarly, the ALJ failed to address plaintiff's extensive pain medication regime - and its side effects - and dismissed, rather than considered, plaintiff's treatment efforts in Florida, where she went to a resort on Dr. Shein's encouragement "to try to strengthen and exercise in warmer weather." (R. 322.) This was error. See Lugo, 2008 WL 515927, at *22 (finding error where "the ALJ, when addressing pain, mentioned but did not evaluate [the claimant's] medication regime, referred to [claimant's] attempts to do light housework and cited the lack of physical therapy or surgery"), report and recommendation adopted, 2008 WL 516796 (S.D.N.Y. Feb. 27, 2008). See also Moss v. Colvin, 2014 WL 4631884, at *32 (S.D.N.Y. Sept. 16, 2014) ("because of limitations in the ALJ's analysis and explanations, we are unable to perform a proper review of the ALJ's findings with respect to plaintiff's credibility.") In addition, the ALJ also misinterpreted the record when he cited the fact that plaintiff had "never . . . even been referred for physical therapy" as a reason to disbelieve her testimony about her pain. (R. 17.) As noted above, Dr. Shein considered physical therapy for plaintiff but concluded that it "may irritate her and make her worse." (R. 591.)
The remaining bases that the ALJ identified for discrediting plaintiff are also problematic. Dr. Koo did repeatedly note that plaintiff denied constitutional, musculoskeletal, and neurological symptoms. However, plaintiff may have understood the inquiry as relating only to the "reason for" plaintiff's visit to Dr. Koo. Thus, Dr. Koo's April 12, 2012 note, reflecting a "reason for visit" of "cough, congestion," and a "present illness" of "malaise, cough, chills, congestion, and wheezing," also noted that plaintiff denied constitutional, musculoskeletal, or neurological symptoms "with the exception of wheezing, cough, sore throat," and nasal congestion. (R. 300.) Her extensive medication regime for her back and neck pain was known to Dr. Koo. (R. 293.)
It is true that an "ALJ's determination with respect to the credibility of witnesses" is given "great deference because the ALJ heard the testimony and observed the demeanor of the witnesses." Ruiz v. Barnhart, 2006 WL 1273832, at *7 (S.D.N.Y. May 10, 2006) (Koeltl, J.). In this case, however, plaintiff appeared in front of the ALJ by video, thereby "potentially reducing the [ALJ's] ability to discern nuance in credibility observations." Absalon v. Comm'r of Soc. Sec., 2009 WL 1035118, at *8 n.4 (N.D.N.Y. Apr. 17, 2009). Moreover, as noted above, the ALJ erred by failing to consider plaintiff's work history and medication regime. And because plaintiff, like Dr. Shein, testified to significant limitations in her ability to sit and stand (R. 175, 183), the ALJ's error was not harmless. See Colon v. Berryhill, 2017 WL 4570389, at *8 (W.D.N.Y. Sept. 14, 2017) (reversing where "plaintiff's testimony regarding his ability to sit, stand and walk" was "substantially consistent with the assessment" of her treating physician and the ALJ "did not give good reasons to discredit plaintiff's testimony regarding his functional limitations"), report and recommendation adopted, 2017 WL 4541011 (W.D.N.Y. Oct. 11, 2017). On remand, therefore, the ALJ should also re-evaluate plaintiff's credibility.
VI. CONCLUSION
For the reasons stated above, I respectfully recommend that plaintiff's motion be GRANTED, that the Commissioner's motion be DENIED, and that this action be REMANDED to the Commissioner for further proceedings, including a re-evaluation of the medical opinion evidence in the record, a reassessment of plaintiff's credibility, and reconsideration of her residual functional capacity. Dated: New York, New York
March 1, 2019
/s/ _________
BARBARA MOSES
United States Magistrate Judge
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS
TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). See also Fed. R. Civ. P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. John G. Koeltl at 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Koeltl. Failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 2018 WL 6179017, at *1 (2d Cir. Nov. 27, 2018); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).