Opinion
20-CV-8518 (RA) (BCM)
08-31-2022
ALEXANDRA ASUNCION REGINO, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION TO THE HONORABLE RONNIE ABRAMS
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE
Plaintiff Alexandra Asuncion Regino filed this action pursuant to § 205(g) of the Social Security Act (Act), 42 U.S.C. § 405(g), seeking judicial review of a final determination of the Commissioner of Social Security (Commissioner) denying her application for Supplemental Security Income (SSI). Now before me is the Commissioner's unopposed motion for judgment on the pleadings. (Dkt. 22.) For the reasons that follow, I recommend that the motion be granted.
I. BACKGROUND
Plaintiff was born on September 14, 1968, and came to the United States in 1987. See Certified Administrative Record (Dkt. 13) (hereinafter "R. ") at 397. She attended high school in the Dominican Republic, but did not graduate (R. 611), and although she later obtained a GED in the United States, she testified that she only speaks "[a] little bit" of English. (R. 54.) She is a single mother who stopped working in 2001 to take care of her son, who is autistic, schizophrenic, and diabetic. (R. 584-85.) Plaintiff continues to live with and take care of her now-adult son, manages his medication, and, with the assistance of a neighbor, cooks and cleans for her son, shops, and does the laundry. (R. 56-57, 615, 620.) When not attending to her son's needs, or doing "[t]he normal things to do for the home" (R. 57), plaintiff watches television. (R. 615, 620.)
For many years, plaintiff has suffered from a variety of physical and mental health issues, including, inter alia: persistent back and shoulder pain that she rates at six out of ten; osteoarthritis in her left knee, which causes her to walk with a slight limp and use a cane; anemia, for which she takes ferrous sulfate; asthma, triggered by dust, solvents, and seasonal allergies, leaving her "short of breath" after climbing one flight of stairs or walking four to five blocks on the street, which she treats with an Albuterol inhaler and Singulair; eczema, particularly on her legs, which causes thickened and hardened skin, slow capillary filling, and malodourous secretions, and which she treats with moisturizers; migraines; vertigo with intermittent dizziness; insomnia, attributable to anxiety about her son, for which she takes the sleep aid zolpidem (brand name Ambien); and major depressive disorder with psychotic features, for which she is prescribed the antidepressant paroxetine (brand name Paxil) and sees a therapist biweekly. (R. 513, 577-78, 589, 618-20.) Although plaintiff occasionally goes grocery shopping with her son - which causes her anxiety because he is prone to spontaneous bouts of aggression in public - she is otherwise almost entirely "socially isolated." (R. 612, 615, 690.)
Plaintiff first applied for SSI on August 10, 2006. (R. 71.) An Administrative Law Judge (ALJ) denied that claim on January 15, 2008. (Id.) Plaintiff reapplied for SSI on July 28, 2018, at the age of 49, alleging disability as of January 1, 2015, due to eczema, migraines, intermittent dizziness, visual disturbances, herniated discs in her back, leg pain, asthma, stomach ulcers, poor circulation, myopia and astigmatism, insomnia, and major depressive disorder with psychotic features. (R. 428.) The Social Security Administration (SSA) initially denied that claim on October 16, 2018 (R. 82), prompting plaintiff to request a hearing before an ALJ. (R. 90.) On August 8, 2019, plaintiff appeared by videoconference before ALJ Hilton R. Miller. (R. 51-69.) On October 4, 2019, ALJ Miller issued an unfavorable decision (Decision) (R. 34-46) concluding that plaintiff was not disabled. On August 4, 2020, the Appeals Council denied plaintiff's request for review of the Decision (R. 4), rendering the ALJ's determination final.
Plaintiff, filed this action, pro se, on October 9, 2020. (Dkt. 2.) The Commissioner filed the Certified Administrative Record on August 10, 2021, followed by a motion for judgment on the pleadings on November 3 2021. (Dkt. 22.) The Court directed plaintiff to file her opposition papers no later than January 3, 2022. (Dkt. 21.) After she failed to do so, the Court, sua sponte, extended her time to oppose the Commissioner's motion to April 11, 2022. (Dkt. 26.) Plaintiff never filed any opposition.
11. SUMMARY OF RELEVANT MEDICAL EVIDENCE
A. Treating Providers
1. Mental Health
Plaintiff regularly received biweekly psychotherapy and monthly medication management at the Metropolitan Center for Mental Health (MCMH) from April 19, 2007, through at least June 21, 2019. (R. 472-569, 630-693.) For much of that time she was prescribed Ambien for insomnia and Paxil for depression, which she tolerated well and which stabilized her mood. (See, e.g., R. 489, 502-03.) Between April 2015 and June 2019 - the time period for which detailed records from MCMH are available - plaintiff presented normally and, with only occasional deviations, was described as doing well. (R. 472-569, 630-693.)
For example, plaintiff's therapist, Catalina Angel, L.C.S.W., reported on April 10, 2015, that she had a "depressive mood and anxiety due to memories of trauma" associated with her son's mental illness and her relationship with her own mother, who abandoned plaintiff as a child but then reestablished contact and became "her closest friend" before dying in 2015. (R. 518, 534, 611.) Ms. Angel noted that plaintiff had the same "depressive mood" at every session for two and a half years thereafter, but also recorded - every time - that plaintiff had a "[s]table mood on medication," with no side effects. (R. 522-23, 530, 534, 539, 544, 549, 559, 564, 569.)
On November 18, 2017, Ms. Angel diagnosed plaintiff with recurrent major depressive disorder with psychotic features. (R. 490.) Between January 26, 2015 and May 25, 2018, psychiatric nurse practitioner Carol Deutsch, N.P.P. and/or psychiatrist Daniel Cohen, M.D., both at MCMH, regularly reported that plaintiff's mood was "euthymic" or "good," her sleep was "good" or "very good" (with only occasional lapses), her speech, cognition, judgment, and insight were "good," her recent and remote memory were "intact," her attention and concentration were "good," her fund of knowledge was intact, and she had no suicidal, homicidal, or violent ideation. (R. 47778, 485-87, 498, 504, 506-10, 513-17.) Additionally, plaintiff was reportedly "engaged and compliant with treatment" (R. 492), and, as of January 2018, had "made progress in decreasing depressive mood and anxiety symptoms." (Id.)
Between November 27, 2018 and May 10, 2019, MCMH therapist Jannette Santana, L.C.S.W., and psychiatric nurse practitioner Jessica Marta, N.P.P, observed that plaintiff's sleep and mood were "very good," she was appropriately dressed and groomed, and she was "stable on medication." (R. 670, 674, 676). Additionally, plaintiff continued to be "engaged and compliant with treatment," continued to make "progress in decreasing depressive mood and anxiety symptoms," and was "[i]mproving" overall. (R. 640, 643-46, 650, 653, 655-56, 681.) Although plaintiff on occasion was "oddly dressed" (R. 653) or "oddly related" (R. 630), as late as May 10, 2019, her thought processes were "normal," her speech and cognition were "normal," her judgment and insight were "good," her recent and remote memory, along with attention, concentration and fund of knowledge, were "intact," she was alert and oriented "x3," she had no suicidal, homicidal, or violent ideation, and her "[c]omorbidities" were "[s]table." (R. 630, 633-36.)
Those comorbidities, as reported to MCMH, included asthma, anemia, and knee pain. (E.g., R. 632, 672.) Plaintiff did not report any back pain or shoulder problems to MCMH.
Despite plaintiff's seeming longitudinal stability across four years of treatment, on June 21, 2019, nurse practitioner Marta signed a "Psychiatric Medical Report," in connection with plaintiff's SSI application, in which she opined that plaintiff had "marked" limitations in her ability to understand and remember simple instructions, carry out simple instructions, and understand and remember complex instructions; and "extreme" limitations in her ability to carry out complex instructions and to make judgments on either simple or complex work-related decisions. (R. 689.) Ms. Marta further wrote that plaintiff could not "interact rationally with [the] public or coworkers," could not "form rational judgments regarding prioritizing, social cues, [or] appropriateness," and had a disorganized thought process, along with poor computation, reading, and social skills. (R. 690, 692.) On the same form, however, Ms. Marta wrote that plaintiff had "no" limitations in her ability to interact appropriately with supervision, coworkers, and the public. (R. 692.) She also reported that plaintiff had a euthymic mood and full affect, fair attention and concentration; was alert and oriented "x3"; had an "intact" memory, fund of information, as well as the ability to perform calculations; had "fair" insight and judgment; had "linear" thought processes and no suicidal or homicidal ideation; and tolerated her medications well. (R. 688, 693.)
2. Physical Health
Plaintiff's November 26, 2018 Disability Report, which was apparently prepared by an agency staff member, reports that plaintiff was treated for asthma, anemia, and back pain by Dr. Petya Petrov of Total Medical PC, whom she saw between March 2016 and at least October 2018. (R. 441-42.) However, there are no records from Dr. Petrov in the administrative file. Nor are there any treating notes or other medical evidence from plaintiff's dermatologist, although she told the consultative medical examiner that she had one. (R. 619.) The only evidence concerning plaintiff's physical impairments comes from her own testimony, occasional statements made to or observations by her mental health care providers, and the examination results and opinion evidence of two physicians who evaluated plaintiff for purposes of her SSI application, as follows.
According to the Disability Report, the SSA had "no vendor file" for Dr. Petrov. (R. 437.) "[T]he import of this is not clear." Santiago v. Comm'r of Soc. Sec. Admin., 2021 WL 4207226, at *5 (S.D.N.Y. July 15, 2021), report and recommendation adopted, 2021 WL 4206815 (S.D.N.Y. Aug. 2, 2021).
Insofar as the administrative record discloses, plaintiff never identified her dermatologist to the SSA.
B. Opinion Evidence
1. Fedcap
Between April 6, 2018 and May 7, 2018, Fedcap Rehabilitation Services, Inc. (Fedcap), which provides vocational training and employment resources to disabled persons, prepared a biopsychosocial summary on plaintiff under the direction of Gino Zunino, M.D. (R. 574.) Plaintiff was "sociable," "responsive[,] and well groomed" at her evaluation. (R. 584-85.) Fedcap noted that she traveled independently by bus and subway, took "care of [her] special needs child," and socialized "every[] day" with her "son[ and] friends." (R. 583.) She reported that her "barriers to employment" were her major depressive disorder, migraines, herniated discs, back and leg pains, weakness, eczema, dizziness, asthma, stones in stomach, poor circulation, myopia, and [a]stigmatism, and that she "walks with a cane" and is "the caretaker for [her] adult (27 years old) son with special needs[.]" (R. 578.) She rated her chronic low back pain as "6/10 intensity for more than 1 year," and said that her eczema had been "progressive since childhood" and "worsening over the last 4 to 6 months." (R. 589.)
Plaintiff's physical exam at Fedcap was largely unremarkable, with the exception of her "severe eczema," primarily affecting "the lower extremities up to her knees," and manifesting as "thickening skin, redness, some purple areas, and malodorous secretions," as well as "lesions over the extensor surfaces of the upper extremities." (R. 428, 589, 596, 598-99.) Asked about her activities of daily living (ADLs), plaintiff reported no difficulties with bathing, dressing, grooming, toileting, or meal preparation, and no issues filling out forms, spelling, or performing arithmetic with small numbers. (R. 582-83.) However, she said she had difficulty washing dishes and clothes, and cleaning her house, because of herniated discs in her back. (Id.)
Dr. Zunino opined that plaintiff was limited to lifting less than 15 pounds at a time; could not push or pull more than 15 pounds; could not stand or sit for more than 30 minutes continuously; could not walk more than two to three blocks at a time; was limited in climbing; could only do "some" kneeling and squatting; and should avoid dust, fumes, and extreme temperatures; but had no communicative, cognitive, or interpersonal issues. (R. 599-601.) In terms of work limitations, Dr. Zunino opined that plaintiff could perform a job with limited (or no) lifting, pushing, pulling, carrying, stooping, bending, or reaching, and that provided alternate sitting and standing arrangements and flexible or modified scheduling and use of leave as needed. (R. 602.) Dr. Zunino added that plaintiff should perform indoor work with adequate ventilation and temperature control, and needed a low-stress environment without dust, smoke, odor, or fumes. (R. 602.)
2. Dr. Finegan
On September 13, 2018, Ann Marie Finegan, M.D. conducted a consultative internal medicine examination of plaintiff at the request of the SSA. (R. 618-24.) Plaintiff told Dr. Finegan that she had asthma since early childhood, exacerbated by extreme temperatures, pollen, dust, and springtime allergies. (R. 618.) However, plaintiff had never been hospitalized for asthma (or for anything else, except childbirth), got "excellent" symptom relief from Albuterol, and was monitored only by her primary care physician (PCP). (Id.) Plaintiff also reported anemia for more than 20 years, for which she took iron tablets and met with her PCP "on a regular basis" to monitor her blood counts. (R. 618.) Because of her asthma and anemia, plaintiff told Dr. Finegan, she became short of breath after walking "four or five blocks" or climbing one flight of stairs. (Id.)
Plaintiff also reported vertigo, intermittently, for over 15 years, triggered by "repetitive bending" or rapid head movement, which she avoided. (R. 619.) Plaintiff told Dr. Finegan that she had struggled with eczema since early childhood, that it was treated by her (unidentified) dermatologist and/or her PCP, and that it was "actually doing very well" at the time of the exam, due in part to the routine plaintiff had "worked out" with moisturizers, which "helped." (Id.) Plaintiff also told Dr. Finegan that she had suffered from mood disorders for over 20 years, treated by a psychiatrist and psychotherapist. (Id.)
Regarding her ADLs, plaintiff reported to Dr. Finegan that she "does do the cooking, cleaning, laundry, and shopping," but that "[s]hopping sometimes causes problems because she does not like being out in public. She showers by herself and dresses herself. Activities include watching TV." (R. 620.)
On physical examination, plaintiff was in no acute distress, and although she had a cane with her, and was "limping slightly on the left," she could heel and toe walk. (R. 620.) She had a normal stance, did not need help changing, could get on and off the exam table on her own using foot rests and handles, and could rise from her seat on her own using arm rests, but could only perform a quarter squat before complaining of pain in her left knee. (Id.) Her skin was "significantly abnormal" (id.), particularly on her lower extremities, where Dr. Finegan observed induration (hardening and thickening of the skin), "loss of the normal hair growth," slow capillary filling with drainage, abnormal dermal ridges (but without obvious scaling), and hyperpigmentation, which "might be consistent with psoriasis," but no significant adenopathy. (R. 620-21.) Additionally, Dr. Finegan noted that plaintiff had a limited range of motion (ROM) in the shoulders, as well as limited lumbar flexion, but a negative straight leg raising test bilaterally. (R. 621.) Plaintiff's musculoskeletal system was otherwise normal. She had full ROM in the cervical spine, hips, lower leg joints, elbows, wrists, and small joints of the hands bilaterally. (Id.) There was a "palpable 'click'" on her left knee exam, with a Baker's cyst present, but no instability or localized tenderness. (Id.) Plaintiff's strength was "5/5" in her upper and lower extremities, and her hand and finger dexterity were intact, with grip strength "5/5" bilaterally. (Id.)
Dr. Finegan diagnosed plaintiff with asthma, inflammatory skin disease ("eczema versus psoriasis"), mood disorder, mild osteoarthritis of the left knee, bilateral shoulder impingement syndrome, and lower back pain of unclear etiology. (R. 622.) Based on plaintiff's history and clinical exam, Dr. Finegan concluded that she should not be exposed to fumes, other known respiratory irritants, "solvents or agents known to cause contact dermatitis," or "extremes of temperature." (R. 623.) Further, plaintiff "should not perform any tasks involving either arm above shoulder height," and according to Dr. Finegan was "mildly limited with regard to [her] ability to kneel, crouch, or crawl." (Id.) Dr. Finegan did not recommend any exertional limitations.
3. Dr. Dubro
On September 13, 2018, Alan Dubro, Ph.D. performed a consultative psychiatric evaluation of plaintiff. (R. 611-17.) Plaintiff reported to him that she took public transportation to the exam, on her own, that she spoke only Spanish, and that she lived with and took care of her 28-year-old son, who has had significant psychiatric problems. (R. 611.) She herself had never been hospitalized for psychiatric problems, and "[f]or the past ten years . . . [had] been receiving outpatient psychiatric treatment at" MCMH, including biweekly psychotherapy and monthly psychiatric medication management with Paxil and Ambien. (Id.)
Plaintiff reported "longstanding problems with insomnia" because her son was "up throughout much of the night" and she felt that she needed to check on him (R. 612.) She also reported "longstanding symptoms of depression," explaining that it was "markedly stressful" to raise an autistic son who then developed schizophrenia. (Id.) Plaintiff said that she "frequently feels exhausted and depressed by having to care for her son as he is not able to care for himself," but would feel guilty if she did not provide his care. (Id.) Plaintiff also experienced "marked anxiety and worry regarding the welfare of her son," who on more than 10 occasions had become so aggressive that she had to call 911. (Id.) Because she was fatigued and overwhelmed, she did not engage in any other activities and avoided "all social settings." (Id.) Plaintiff added that she had become "significantly more depressed" since her mother's death in 2015. (Id.) Plaintiff denied trauma, panic attacks, manic symptoms, thought disorder symptoms, suicidal or homicidal ideation, or alcohol or drug abuse, but she did "report having experienced learning difficulties in school" and said she had "limited academic skills." (R. 612-13.)
Plaintiff appeared "older than her stated age" and was "tense and anxious" during Dr. Dubro's exam (R. 613.) She had a slouched posture and "sluggish" motor behavior, and established, "but did not consistently maintain," eye contact. (Id.) Her speech was fluent; her thought processes were coherent and goal-directed, "with no evidence of hallucinations, delusions, or paranoia in the evaluation setting"; her affect was blunted, "depressed[,] and anxious throughout the exam"; her sensorium was clear; and she was alert and oriented "x3." (Id.) Dr. Dubro found plaintiff's attention, concentration, and recent and remote memory impaired "secondary to depression and anxiety," and wrote that her insight and judgment were fair. (R. 614.) Plaintiff was "not able to perform mental arithmetic," and functioned intellectually in the below-average range, with a "relatively limited" general fund of information. (Id.) Although she said she was "getting along adequately" with the assistance of a calculator to perform arithmetic, Dr. Dubro opined that she "will require assistance in managing money." (R. 614, 616.)
With respect to her ADLs, plaintiff told Dr. Dubro that she got herself out of bed, dressed, and maintained her hygiene, but required her neighbor's assistance to do cooking, cleaning, and laundry. (R. 614.) She said she had no energy to go food shopping, but nonetheless did so on a monthly basis - with her son on occasion - which heightened her anxiety because of his irritability and aggression. (Id.) Because "[s]he does not socialize at all," she "spends her days watching TV." She also told Dr. Dubro that she had no hobbies or interests. (R. 615.)
Dr. Dubro diagnosed plaintiff with severe recurrent major depression, dysthymic disorder, and generalized anxiety disorder. (R. 615.) He opined that plaintiff "displays mild limitations" in her ability to understand, remember, and apply simple directions and instructions; "displays moderate limitations" in her ability to understand, remember, and apply complex directions and instructions; "would display marked limitations" in her ability to use reason and judgment to make work-related decisions; "would display marked limitations" in her ability to interact adequately with supervisors, workers, and the public; "does display marked limitations" in her ability to sustain concentration and to perform tasks at a consistent pace; "would display marked limitations" in her ability to sustain an ordinary routine and regular attendance at work; and "does display marked limitations" in her ability to regulate her emotions, control her behavior, and maintain her well-being. (R. 615.) She was able to maintain her personal hygiene and wear appropriate attire and was "aware of normal hazards and takes appropriate precautions." (Id.) Dr. Dubro concluded that plaintiff's psychiatric problems "significantly interfere with [her] ability to function on a daily basis" (id.), and that her prognosis was "[g]uarded." (R. 616.)
4. Dr. Bhutwala
On September 27, 2018, state agency reviewer S. Bhutwala, Ph.D. evaluated plaintiff's mental functioning based on the record available at that time, including her MCMH treatment records and Dr. Dubro's report. (R. 74-75.) Using the psychiatric review technique (PRT) mandated by 20 C.F.R. § 416.920a, Dr. Bhutwala found that plaintiff had a "[m]oderate" limitation in understanding, remembering, or applying information; no limitation in interacting with others; a "[m]oderate" limitation in concentrating, persisting, or maintaining pace; and no limitation in adapting or managing herself. (R. 76.) He also noted that the "[e]vidence does not establish the presence of" the "paragraph C" criteria. (Id.) Based on these ratings, Dr. Bhutwala found that plaintiff's medically determinable mental impairment did not "precisely satisfy the diagnostic criteria" of Listing 12.04, 20 C.F.R. pt. 404, subpt. P, app'x 1, § 12.04 (depressive, bipolar, and related disorders). (Id.)
The PRT requires the Commissioner to rate the degree of the claimant's limitation in "four broad functional areas," including her ability to: (i) "[u]nderstand, remember, or apply information"; (ii) "interact with others"; (iii) "concentrate, persist, or maintain pace"; and (iv) "adapt or manage [her]self." 20 C.F.R. § 416.920a(c)(3). The degree of limitation in each area is rated on a five-point scale: "None, mild, moderate, marked, and extreme." Id. § 416.920a(c)(4). If the claimant's limitations are rated "none" or "mild" in all four functional areas, her mental impairment will generally be found "not severe," meaning that it does not cause "more than a minimal limitation in [the claimant's] ability to do basic work activities." Id. § 416.920a(d)(1). If the claimant's limitations are greater than "mild," such that her mental impairment is deemed "severe," the Commissioner must then "determine if [the impairment] meets or is equivalent in severity to a listed mental disorder." Id. § 416.920a(d)(2). For most mental disorders, equivalence may be demonstrated by satisfying, among other things, the so-called "paragraph B" criteria, which require the claimant to show that her mental disorder "result[s] in 'extreme' limitation of one, or 'marked' limitation of two," of the same four broad functional areas, see 20 C.F.R. pt. 404, subpt. P, app'x 1, §§ 12.00A(2)(b), 12.00E, or the so-called "paragraph C" criteria, which require the claimant to show that she relies, on an ongoing basis, upon medical treatment and/or mental health therapy to diminish the symptoms and signs of her mental disorder and that despite her diminished symptoms and signs, she has achieved only marginal adjustment, i.e., that her "adaptation to the requirements of daily life is fragile," such that she has "minimal capacity to adapt to changes in [her] environment or to demands that are not already part of [her] daily life." Id. §§ 12.00G(2)(b), (c).
Dr. Bhutwala also considered plaintiff's mental residual functional capacity (RFC) (R. 7779), and concluded that she is: "[n]ot significantly limited" in remembering locations and worklike procedures, or in understanding and remembering very short and simple instructions; "[m]oderately limited" in her ability to understand and remember detailed instructions; "[n]ot significantly limited" in her ability to carry out very short and simple instructions; "[m]oderately limited" in her ability to carry out detailed instructions; "[m]oderately limited" in her ability to maintain attention and concentration for extended periods; "[m]oderately limited" in her ability to perform activities within a schedule, maintain regular attendance, and be adequately punctual; "[n]ot significantly limited" in her ability to sustain an ordinary routine without special supervision; "[n]ot significantly limited" in her ability to work in coordination or proximity to others without being distracted; "[n]ot significantly limited" in her ability to make simple work-related decisions; "[m]oderately limited" in her ability to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace; and had "no" limitations regarding social interaction or adaptation. (R. 78-79.)
Dr. Bhutwala explained that the record "document[s the] same medications and dosage with stable mood for over 3 years"; that plaintiff's MCMH records from May 25, 2018, "document good judgment and insight, intact recent and remote memory, [and] good attention/concentration"; that plaintiff "took public transportation alone to the [psychiatric] exam [with Dr. Dubro on September 13, 2018]"; that she was "cooperative" at her psychiatric evaluation, with fluent speech and coherent and goal-directed thought processes; and that, despite her depressed and anxious mood, cognitive difficulties, and avoidance of social situations "due to her son," plaintiff "retains [the] ability to do at least unskilled work." (R. 79.)
5. Dr. Padmaraju
On October 12, 2018, state agency reviewer S. Padmaraju, M.D. assessed plaintiff's physical functioning based on the sparse relevant record to date, consisting of plaintiff's biopsychosocial summary prepared by Fedcap in May 2018 and Dr. Finegan's consultative exam on September 13, 2018. (R. 74-75.) Dr. Padmaraju found that plaintiff's asthma, which she treated with an inhaler and which did not require hospitalization, was "non severe"; her anemia, which she treated with "iron pills," was "non severe"; and her vertigo, which she neither treated with medications nor accounted for by avoiding activities, was "non severe." Dr. Padmaraju then described plaintiff's remaining impairments, based on Dr. Finegan's report, and concluded that since plaintiff "failed to provide information concerning her PCP and dermatologist, her claim was "denied for FTC [failure to cooperate] as physical presentation at CE [consultative examination] needs to be supported and longitudinal evidence [is] required." (R.75.)
According to Dr. Padmaraju, "[m]ultiple attempts [were] made to obtain information" about plaintiff's PCP and dermatologist, "from both claimant and rep without success." (R. 75; see also R. 73-74.) As noted above, plaintiff provided the name and address of her PCP, Dr. Petrov, on November 26, 2018 (after Dr. Padmaraju's evaluation but prior to the hearing before ALJ Miller). (R. 441-42.) The only further mention of Dr. Petrov in the record is the SSA's notation, "no vendor file." (R. 437.) Plaintiff never provided the name of - or any contact information for - her dermatologist.
6. Ms. Marta
As noted above, Ms. Marta opined on June 21, 2019, that plaintiff had "marked" or "extreme" limitations impairments with respect to all aspects of her ability to understand, remember, and carry out instructions (but also that plaintiff had "no" limitations in that area) and that she could not "interact rationally with [the] public or coworkers," but was "able to do all ADLs." (R. 688-93.)
III. THE HEARING
On August 8, 2019, plaintiff and her representative appeared by videoconference before ALJ Miller. Plaintiff testified through a Spanish interpreter. (R. 53.) The ALJ also took testimony from impartial medical expert John Jansky, Ph.D., a psychologist, and vocational expert (VE) Amy Kutschbach. (R. 51-69.)
A. Plaintiff's Testimony
Plaintiff, who was 50 years old at the time of the hearing, testified that she had a GED, did not understand much English, and "[n]ever ever worked" because she has had to take care of her son. (R. 54-55.) Plaintiff explained that she "look[s] after his medication, make[s] sure he takes it, as prescribed," "clean[s] his room," and "cook[s] for him." (R. 56.) Plaintiff also did laundry and shopping - "[t]he normal things to do for the home, but with help" from her neighbor. (R. 57.)
With respect to her own alleged impairments, plaintiff said that when walking she had to "stop, constantly, and that's because of back pain," and that her poor circulation caused "problems to the legs, to the feet, [and her] knees." (R. 56.) She also explained that she had difficulty "lifting and carrying objects" because of "the back." (Id.) She testified that she had taken the bus, with her cane, to attend the hearing. (R. 57.) With respect to her asthma, plaintiff said that she generally feels "better" but if there's "perfume around . . . the scent irritates it," and that she takes Singulair and uses a "pump" to ameliorate symptoms. (R. 58.) In addition, plaintiff testified that she had seen a psychiatrist and taken psychiatric medications "for several years," including Ambien "to sleep" and Paxil for depression. (R. 56-57.) Plaintiff did not bring up her eczema, anemia, migraines, vertigo, stomach ulcers, knee pain, or shoulder problems, and neither the ALJ nor plaintiff's representative asked her any questions about those conditions.
B. Dr. Jansky's Testimony
Dr. Jansky confirmed at the start of his testimony that he had received Exhibits 1F through 9F (see R. 469-687) in advance of his testimony, including plaintiff's MCMH treating records; her Fedcap biopsychosocial summary; and Dr. Dubro's consultative medical opinion. (R. 59.) The only exhibit he did not have was Ms. Marta's June 21, 2019 opinion, which later became Exhibit 10F. (R. 688-93.)
Dr. Jansky diagnosed plaintiff with "persistent depressive disorder," also known as "dysthymia," with "anxious distress." (R. 59.) He considered her case "mild." (Id.) Asked if plaintiff's mental impairments were severe, he responded, "No, they do not meet criteria, in terms of psychologically" (R. 59-60), and agreed with the ALJ that "no listing" was met. (R. 60.) Dr. Jansky opined that plaintiff was "capable of simple, routine, and repetitive tasks." (Id.) In support of his opinions, Dr. Jansky cited plaintiff's MCMH records from 2016, 2017, and 2018, highlighting in particular that plaintiff had "made progress in decreasing depression, mood, and anxiety symptoms." He concluded that it "appears that the patient is doing very well, in terms of functioning now." (R. 61.)
C. VE Kutschbach's Testimony
For his first hypothetical, the ALJ asked the VE whether there would be any jobs in the national economy for a person with plaintiff's age, education, and work experience, and the RFC to perform medium work, who could stand or walk for six hours and sit for two hours in an eight hour workday (with normal breaks), but who was subject to the following limitations: she could occasionally climb ramps and stairs, but not ladders, ropes, or scaffolds; could occasionally balance, kneel, crouch, and stoop; but not crawl; could frequently (but not more than frequently) manipulate or use the bilateral lower extremities, such as for foot controls or pedals; could not be exposed to hazards, odors, dust, fumes, gases, and other respiratory irritants; was limited to performing simple, routine, and repetitive tasks at Specific Vocational Preparation (SVP) levels 1 and 2, which involve making "simple decisions," with only "occasional routine changes"; could not work with the public "due to limited understanding and communication in English"; and could have only occasional contact with coworkers and supervisors. (R. 62-63.)
"Medium work involves listing no more than 50 pounds at a time with frequently lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work." 20 C.F.R. § 416.967(c).
The Dictionary of Occupational Titles (DOT), published by the U.S. Department of Labor from 1938-1999, includes SVP times for each occupation listed therein, which correspond to the amount of time required to develop the pertinent skills for a given job. See SSR 82-41, 1982 WL 31389, at *2 (S.S.A. 1982). SVPs 1 and 2 correspond to "unskilled work," which is "work which needs little or no judgment to do" and involves "simple duties that can be learned on the job in a short period of time. . . . [A] person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed." 20 C.F.R. § 416.968(a).
In response, the VE identified three jobs that would fit those criteria: laundry worker (DOT 361.685-018), which is an SVP 2 job totaling 50,000 positions nationwide; hand packager (DOT 920.587-019), another SVP 2 job, totaling 410,000 positions; and cook's helper (DOT 317.687-010), also SVP 2, totaling 140,000 positions. (R. 63.) The ALJ then asked how the VE's response would change if the first hypothetical also included "only frequent" reaching, to which the VE replied that laundry worker and cook's helper jobs would still be available, but the hand packager job would not be. (R. 64.)
For his second hypothetical, the ALJ asked the VE to consider a claimant with the RFC to perform light work, with similar non-exertional limitations. (R. 64-65.) In response, the VE identified three additional jobs: laundry sorter (DOT 361.687-014), SVP 2, totaling 190,000 jobs; small products assembler (DOT 706.684-022), SVP 2, totaling 230,000 jobs; and inspector and hand packager (DOT 559.687-074), SVP 2, totaling 175,000 jobs. (R. 65-66.) The VE confirmed that these were all unskilled jobs that would not require communication beyond "very basic English understanding," and could be "learned in under 30 days." (R. 66.) The ALJ then asked about adding a "sit/stand option" to the RFC, and the VE testified that the small products assembler job would still be available but that the number of positions would be eroded to 115,000 jobs; that the laundry sorter job would similarly be available but eroded to 145,000 jobs; and that - based on the VE's anecdotal experience - whether the hand packager job could accommodate a sit/stand option would be "based on employer tolerances." (R. 66.) On cross-examination by plaintiff's representative, the VE testified that none of the jobs she named would allow an employee to be 20% "off task," because employers would only tolerate 10-15%, and would not permit more than two absences per month. (R. 67-68.)
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time." 20 C.F.R. § 416.967(b).
At the conclusion of the hearing, the ALJ asked if there was "any evidence that's outstanding or missing." (R. 68.) Plaintiff's representative explained that she had "brought in" a psychiatric medical report - presumably Ms. Marta's - but that there was no other "evidence we're waiting for." (R. 69.)
IV. THE ALJ'S DECISION
On October 4, 2019, the ALJ issued the Decision, concluding that plaintiff was not disabled. At step one of the five-step analysis mandated by 20 C.F.R. §§ 416.920(a)(4)(i)-(v), the ALJ found that plaintiff had not engaged in substantial gainful activity since July 28, 2018, the date on which she applied for SSI. (R. 36.) At step two, see 20 C.F.R. § 416.920(a)(4)(ii), he found that plaintiff's bilateral shoulder impingement syndrome, osteoarthritis of the left knee, lumbago, anemia, contact dermatitis, and depression were all "severe" impairments. (Id.) At step three, see 20 C.F.R. § 416.920(a)(4)(iii), the ALJ found that none of plaintiff's severe impairments, individually or in combination, met or equaled the severity of any impairment listed in 20 C.F.R. Part 404, subpart P, appendix 1. (R. 37-38.)
Before proceeding to step four, the ALJ found that plaintiff had the RFC to perform medium work, as defined in 20 C.F.R. § 416.967(c), except that she:
. . . can stand and/or walk for a total of about 6 hours, and sit for a total of about 6 hours in an 8-our workday with normal breaks. She can occasionally climb ramps and stairs, and never climb ladders, ropes, or scaffolds. The claimant can occasionally balance, kneel, crouch, and stoop, and never crawl, and she is limited to work not requiring more than frequent manipulation using the bilateral lower extremities, such as foot controls or pedals. She must avoid concentrated exposure to odors, dust, fumes, gases, poor ventilation, toxic dusts, chemicals, and other respiratory irritants. In addition, the claimant is limited to performing simple, routine, and repetitive tasks that can be explained, specifically with SVP 1-2, involving only simple decision-making and occasional changes in routine. She is limited to work not requiring any contact with the public, due to limited understanding and communication in English, and only occasional contact with coworkers and supervisors.
(R. 39.)
In developing plaintiff's RFC, the ALJ closely analyzed the objective evidence in the record, and then turned to the opinion evidence. He found that Dr. Zunino's conclusion, incorporated into the May 2018 Fedcap report, was "partially persuasive." (R. 43.) Although Dr. Zunino's views were "generally supported by the evidence as a whole," and "adequately consider[ed] the claimant's subjective complaints and self-reported physical and mental capacity," his opinion was "not expressed in terms of quantitative limitations," and therefore the ALJ was "unable to determine to what extent the evidence supports it." (Id.)
The ALJ found that Dr. Finegan's September 13, 2018 consultative exam was "persuasive" (R. 43), because it was "supported by the objective and treating evidence as a whole, which demonstrates left knee, asthma, and contact dermatitis with persistent symptoms despite treatment, as well as persistent anemia despite treatment" and "shoulder and lower back impairment without a specific course of treatment." (Id.) The opinion was also "consistent with Dr. Finegan's objective examination findings, and adequately consider[ed] the claimant's subjective complaints and selfreported retained physical capacity for tasks such as [ADLs] despite her severe musculoskeletal, respiratory, hematologic, and skin impairments." (R. 43-44.)
The ALJ did not address Dr. Padmaraju's prior administrative finding.
With respect to plaintiff's mental impairments, the ALJ found that the opinions of Dr. Dubro and Ms. Marta were only "partially persuasive." (R. 43-44.) The "marked" limitations assessed by Dr. Dubro were "more restrictive than indicated by the evidence as a whole." (R. 43.)In addition, "while this opinion consider[ed] the claimant's subjective complaints, it d[id] not adequately consider the claimant's self-reported retained mental capacity to understand, remember, and apply information; interact with others; concentrate, persist, and maintain pace; and adapt and manage herself despite her severe psychiatric impairment." (Id.) As for Ms. Marta's opinion, the ALJ found that it was "supported by the evidence" insofar as it concerned plaintiff's "capacity for complex tasks and decision-making," but was "more restrictive than indicated" regarding "simple tasks and interacting appropriately with others." (R. 44.) The ALJ found the opinion of Dr. Bhutwala, the state agency reviewer, "not persuasive," because it was "less restrictive than indicated by the evidence as a whole, and d[id] not adequately consider the claimant's subjective complaints regarding interacting with others and adapting and managing herself." (R. 44.)
Dr. Dubro, the consultative examiner, did not have the benefit of plaintiff's mental health treatment notes from MCMH.
Finally, the ALJ found Dr. Jansky's testimony at the hearing "persuasive," as it was "supported by the evidence as a whole, which demonstrates depression with persistent symptoms. In addition, this opinion adequately considers the claimant's subjective complaints and selfreported retained mental capacity to understand, remember, and apply information; interact with others; concentrate, persist, and maintain pace; and adapt and manage herself despite her severe psychiatric impairments." (R. 40.)
At step four, see 20 C.F.R. § 416.920(a)(4)(iv), the ALJ found that plaintiff had no past relevant work, see 20 C.F.R. § 416.965 (R. 44), but at step five, see 20 C.F.R. § 416.920(a)(4)(v), the ALJ determined, based on VE Kutschbach's expert testimony at the hearing, that given plaintiff's vocational profile and RFC, there were jobs that exist in significant numbers in the national economy that she could perform, including as a laundry worker, hand packager, cook's helper, laundry sorter, small products assembler, and inspector and hand packager. (R. 45.) Consequently, the ALJ concluded, plaintiff was not under a disability, as defined in the Act, at any time since she filed her application on July 28, 2018. (R. 46.)
In the Decision, the ALJ misidentifies VE Kutschbach as "July Dyer" or "vocational expert Dyer." (R. 45-46.)
V. THE PARTIES' POSITIONS
In her brief, the Commissioner asserts that the Decision is supported by substantial evidence and that the ALJ did not err in his evaluation of the opinion evidence, his analysis of plaintiff's subjective complaints, or his reliance on the VE's testimony in determining that a significant number of jobs exist in the national economy which plaintiff could perform. Def. Opp. (Dkt. No. 23) at 16-22. The plaintiff, as noted above, did not file a brief.
VI. ANALYSIS
A. Standards
In considering the Commissioner's motion, I have reviewed the entire administrative record (totaling 693 pages) and applied the familiar and frequently reiterated standards used by federal district courts to review disability decisions. Generally speaking, a court may set aside an ALJ's decision only if it is based upon legal error or if the ALJ's factual findings are not supported by substantial evidence. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Conyers v. Comm'r of Soc. Sec., 2019 WL 1122952, at *11-12 (S.D.N.Y. Mar. 12, 2019).
"Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). "In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Longbardi v. Astrue, 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009) (citing Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)). However, the reviewing court's task is limited to determining whether substantial evidence exists to support the ALJ's fact-finding; it may not reweigh that evidence or substitute its judgment for that of the ALJ where the evidence is susceptible of more than one interpretation. "[O]nce an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (emphasis in original) (quotation marks omitted). Thus, the substantial evidence standard is "a very deferential standard of review." Id.
A claimant's RFC is the "most [she] can still do despite [her] limitations." 20 C.F.R. § 416.945(a)(1). A claimant's RFC is based on all of the relevant medical and other evidence in the record, including her credible testimony, objective medical evidence, and medical opinions from treating and consulting sources. 20 C.F.R. § 416.945(a)(3). Although necessarily informed by the medical evidence in the record, "[a]n RFC finding is administrative in nature, not medical, and its determination is within the province of the ALJ[.]" Curry v. Comm'r of Soc. Sec., 855 Fed.Appx. 46, 48 n.3 (2d Cir. 2021).
In evaluating a disability claim filed on or after March 27, 2017 (including the claim at issue here) the ALJ need not "defer" or "give any specific evidentiary weight" to "any medical opinion or prior administrative medical finding. 20 C.F.R. § 416.920c(a). Rather, the ALJ must evaluate the "persuasiveness" of each opinion or finding in light of: (i) its "[s]upportability"; (ii) its "[c]onsistency"; (iii) the "[r]elationship" between the medical source and the claimant; (iv) the source's "[s]pecialization" in a relevant medical field; and (v) "other factors that tend to support or contradict" the opinion or finding. 20 C.F.R. § 416.920c(c)(1)-(5). Of these, the most important factors are "supportability" and "consistency." Id. § 416.920c(b)(2); see also Rivera v. Comm'r of the Soc. Sec. Admin., 2020 WL 8167136, at *11 (S.D.N.Y. Dec. 30, 2020), report and recommendation adopted sub nom. Rivera v. Comm'r of Soc. Sec. Admin., 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021).
As to supportability, the regulations provide: "The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be." 20 C.F.R. § 416.920c(c)(1). As to consistency: "The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be." Id. § 416.920c(c)(2). The ALJ need not discuss all of the factors described in the regulations, but must, as to each opinion or prior administrative medical finding, "explain how [he or she] considered the supportability and consistency factors." Id. § 416.920c(b)(2).
In weighing medical opinions, "[t]he ALJ is not permitted to substitute his own expertise or view of the medical proof for the treating physician's opinion or for any competent medical opinion." Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015). However, regardless of how many (or how few) medical source statements are in the record, the determination of the claimant's RFC is reserved to the ALJ, who is not required to accept, or follow, any one medical opinion. See Camille v. Colvin, 652 Fed.Appx. 25, 29 n.5 (2d Cir. 2016) (summary order) ("An ALJ may accept parts of a doctor's opinion and reject others."). "[I]t is the ALJ's prerogative to make an RFC assessment after weighing the evidence and the District Court may not reverse provided there is substantial evidence in the record to support [his] findings." Moronta v. Comm'r of Soc. Sec., 2019 WL 4805801, at *19 (S.D.N.Y. Sept. 30, 2019) (quoting Mitchell v. Astrue, 2010 WL 3070094, at *5 (W.D.N.Y. Aug. 4, 2010)) (alteration in original).
B. The ALJ Did Not Fail in his Duty to Develop the Record
"[T]he social security ALJ, unlike a judge in a trial, must on behalf of all claimants . . . affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation marks and citations omitted). Consequently, "[w]hether the ALJ has met his duty to develop the record is a threshold question" which the Court must determine "[b]efore reviewing whether the Commissioner's final decision is supported by substantial evidence." Craig v. Comm'r of Soc. Sec., 218 F.Supp.3d 249, 261 (S.D.N.Y. 2016). Although the Commissioner does not discuss this issue in her brief, it warrants consideration by the Court. The administrative record concerning plaintiff's mental impairments is robust, including four years of detailed treating notes and opinion evidence from a state agency reviewer, a consultative examiner, one of plaintiff's treating therapists, and an impartial medical expert. But the record concerning her physical impairments is much thinner, and is notable for the absence of any records (much less any opinion evidence) from plaintiff's PCP, Dr. Petrov, or from any other treating source as to those impairments.
The applicable regulations require the SSA to develop the claimant's "complete medical history for at least the 12 months preceding the month in which [she] file[s] [her] application," and make "every reasonable effort" to help her obtain records from her treating sources. 20 C.F.R. § 416.912(b)(1). The ALJ must assist the claimant to obtain "not merely the medical records of the treating physician but also a report that sets forth the opinion of the treating physician as to the existence, the nature, and the severity of the claimed disability.'" Hooper v. Colvin, 199 F.Supp.3d 796, 812 (S.D.N.Y. 2016) (quoting Molina v. Barnhart, 2005 WL 2035959, at *6 (S.D.N.Y. Aug. 17, 2005)). However, the absence of a treating source opinion - even if that absence results from the ALJ's failure to request it - does not necessarily require remand, so long as "the record contains sufficient evidence from which an ALJ can assess the petitioner's residual functional capacity." Tankisi v. Comm'r of Soc. Sec., 521 Fed.Appx. 29, 34 (2d Cir. 2013). If opinion evidence from plaintiff's treating physician(s) is unavailable or inadequate, the ALJ may "order a consultative examination," 20 C.F.R. § 416.912(b)(2), which can also furnish substantial evidence to support the ALJ's conclusions. Tankisi, 521 Fed.Appx. at 34. In fact, "[i]t can be reversible error for an ALJ not to order a consultative examination when an examination is required for an informed decision." Id. at 32.
More generally, the ALJ's obligation to assemble the claimant's medical records, although robust, "is not unlimited." Martin v. Saul, 2020 WL 5096057, at *4 (W.D.N.Y. Aug. 28, 2020); Myers ex rel. C.N. v. Astrue, 993 F.Supp.2d 156, 163 (N.D.N.Y. 2012). "Plaintiff bears the ultimate burden of proving that she was disabled throughout the period for which benefits are sought[.]" Holly P. v. Comm'r of Soc. Sec., 2022 WL 2872650, at *3 (W.D.N.Y. July 21, 2022) (upholding ALJ determination that plaintiff had no "severe" impairments where she failed to submit any objective or opinion evidence concerning the functional impact of her claimed impairments); see also Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) ("The claimant has the general burden of proving that he or she has a disability within the meaning of the Act[.]"). It is the claimant's obligation, both in her application materials and throughout the pendency of her case, to "inform [the agency] about or submit all evidence known to you that relates to whether or not you are blind or disabled." 20 C.F.R. § 416.912. "This duty is ongoing and requires you to disclose any additional related evidence about which you become aware." Id.
Moreover, where (as here) the claimant was represented before the agency, "the ALJ may satisfy the duty to develop the record by relying on the claimant's counsel to obtain additional medical documentation." Myers, 993 F.Supp.2d at 163; see also Martin, 2020 WL 5096057, at *4 (in a counseled case, ALJ satisfied her duty "by holding the record open after the hearing to permit the submission of additional evidence"); Jordan v. Comm'r of Soc. Sec., 142 Fed.Appx. 542, 543 (2d Cir. Sept. 8, 2005) (summary order) (ALJ "fulfilled his duty to develop the administrative record" where plaintiff's counsel volunteered to secure missing records from treating physician; ALJ held the record open to allow him to do so; and counsel never asked for further assistance from ALJ).
In this case, the SSA was initially unable to obtain any medical records from Dr. Petrov, or from plaintiff's dermatologist, because plaintiff failed to identify those providers despite "[m]ultiple attempts made to obtain information from both claimant and rep without success." (R. 75.) The record corroborates Dr. Padmaraju's assessment, showing that the agency requested medical evidence from "Unknown Name" on five separate occasions: twice on August 1, 2018, once on August 15, 2018, and twice on September 27, 2018. (R. 73-74.) Consequently, the agency arranged for plaintiff to undergo a consultative examination by Dr. Finegan, which she did. (R. 618-24.) Further, although plaintiff did provide Dr. Petrov's name and address information in her November 26, 2018 Disability Report (R. 441-42), she never named her dermatologist, and neither she nor her representative responded to the SSA's pre-hearing letter, dated January 9, 2019, reminding plaintiff that it was her responsibility provide medical records sufficient to support her claim and requesting "[a]ll medical records . . . from one year prior to the alleged onset date" that were not already in the agency's files. (R. 448-61.) Thereafter, at the conclusion of the hearing before ALJ Miller, the ALJ specifically asked plaintiff's representative whether "there [is] any evidence that you're waiting for, that we need to hold the record open for?" (R. 69.) Plaintiff's representative replied, "Oh, no. No. No evidence we're waiting for, no." (Id.)
I note as well that in her brief to the Appeals Council, signed by an attorney at the Legal Aid Society, plaintiff complained only that the ALJ's RFC did not incorporate the "overhead activity or reaching limitations" contained in Dr. Finegan's consultative report. (R. 467-68.) Plaintiff did not challenge the adequacy of the record and did not submit any additional medical records to the Appeals Council.
On these facts, I do not recommend remand for the purpose of further developing the record. Although the absence of any treating records with regard to plaintiff's physical impairments is troubling, it is difficult to fault the ALJ where, as here, a represented claimant initially failed to provide the name or address of her PCP; never provided the name or address of her dermatologist; did not respond to the SSA's pre-hearing letter reminding her to ensure that the medical record was complete; and when specifically asked at the hearing if there were "any other evidence" to wait for, answered in the negative. It was not error, under these circumstances, for the ALJ to take the representative at her word.
C. The ALJ Did Not Err in His Evaluation of the Opinion Evidence
With regard to plaintiff's mental functioning, the ALJ found that she was "moderately" limited in two areas set out in 20 C.F.R. § 416.920a(c)(3) - understanding, remembering, or applying information and interacting with others - and "mildly" limited in the remaining two areas - concentrating, persisting, or maintaining pace and adapting or managing herself. (R. 37-38.) The ALJ then incorporated these limitations into plaintiff's RFC, by limiting her to "simple, routine, and repetitive tasks," which involved no contact with the public and only occasional contact with coworkers and supervisors. (R. 39.)
In making his findings regarding plaintiff's mental functioning, the ALJ rejected portions of Ms. Marta's opinion, including that plaintiff had "marked" limitations in her ability to understand, remember and carry out even simple instructions; that she had "extreme" limitations in her ability to make judgments on even simple work-related decisions; and that she could not "interact rationally with . . . coworkers," and could not "form rational judgments regarding prioritizing, social cues, [or] appropriateness." (R. 690-92.) He also rejected portions of Dr. Dubro's opinion, including that plaintiff did (or "would") display "marked" limitations in her ability to use reason and judgment to make work-related decisions, interact adequately with supervisors and coworkers, sustain concentration, perform tasks at a consistent pace, sustain an ordinary routine and regular attendance at work, regulate her emotions, control her behavior, and "maintain her well-being." (R. 615.)
Unfortunately, the ALJ provided only a perfunctory discussion of his reasons for finding these two opinions unpersuasive in part. As to Dr. Dubro, he wrote that the "assessed marked limitations are more restrictive than indicated by the evidence as a whole," and did not adequately consider plaintiff's "self-reported mental capacity" for various tasks. (R. 43.) As to Ms. Marta, he stated only that her opinion was "more restrictive than indicated, regarding simple tasks and interacting appropriately with others." (R. 44.) The ALJ thus failed adequately to "explain how [he] considered the supportability and consistency factors," as required by 20 C.F.R. § 416.920c(b)(2). Remand is not required, however, if an ALJ's failure adequately to articulate these factors is harmless and "the substance of the [regulation] was not traversed." Loucks v. Kijakazi, 2022 WL 2189293, at *2 (2d Cir. June 17, 2022) (alteration in the original) (quoting Estrella v. Berryhill, 925 F.3d 90, 96 (2d Cir. 2019)); see also Scott A. C. v. Kijakazi, 2022 WL 2965585, at *2-3 (N.D.N.Y. July 27, 2022) (agreeing with magistrate judge that that "the ALJ's failure to mention examining [n]europsychologist Victoria Londin, Ph.D., by name and failure to articulate any findings related to the supportability factor was harmless error," because a "searching review of the record" showed that Dr. Londin's opinion was "inconsistent with the three other evaluations and opinions in the record" and properly rejected "on that ground"); Ricky L. v. Comm'r of Soc. Sec., 2022 WL 2306965, at *4 (W.D.N.Y. June 27, 2022) (finding that "the ALJ's procedural error was harmless" where, although he failed to explain how he considered the supportability and consistency of a medical opinion, the court could adequately "glean" his reasoning from other portions of his decision); Gutierrez v. Comm'r of Soc. Sec., 2022 WL 2116718, at *11 n.3 (S.D.N.Y. June 13, 2022) ("Although ALJ Miller was required to discuss the supportability and consistency of Dr. Joshi's medical opinion pursuant to § 404.1520c, his failure to do so was harmless because it is clear from the record his discussion would lead to the same conclusion.").
Here, a review of the record shows that Ms. Marta's opinion as to plaintiff's "marked" and "extreme" mental limitations was strikingly at odds with (and therefore unsupported by) the treating notes that she and her colleagues at MCMH wrote during the approximately four years that they saw plaintiff regularly for therapy and medication management. Those notes generally show that plaintiff was stable on her medication; that her speech, cognition, judgment, and insight were "good"; that her thought processes were "normal"; that her recent and remote memory were "intact," as was her fund of knowledge; that her attention and concentration were "good"; that she was appropriately dressed and groomed; and that she had no suicidal, homicidal, or violent ideation. (R. 477-78, 485-87, 498, 504, 506-10, 513-17, 522-23, 530, 534, 539, 544, 549, 564, 569, 630, 633-36, 670, 674, 676.) Additionally, plaintiff was "engaged and compliant with treatment" and frequently noted to be "improving" and/or making "progress" in decreasing her symptoms of depression and anxiety. (R. 492, 640, 643-46, 650, 653, 655-56, 681.) There is nothing in those treatment notes that suggests, for example, that plaintiff was incapable of understanding and carrying out simple instructions, or could not interact "rationally" with coworkers. Similarly, Dr. Dubro's opinion as to plaintiff's "marked" mental limitations was inconsistent with the MCMH treating notes (which he did not see). The opinions of Ms. Marta and Dr. Dubro were also inconsistent with the opinion of state agency reviewer Dr. Bhutwala - which the ALJ found "not persuasive," because it was "less restrictive than indicated by the evidence as a whole" (R. 44) -and inconsistent in part with the opinion of medical expert Dr. Jansky, who reviewed the entire record (except, apparently, Ms. Marta's opinion) and also had the opportunity to consider plaintiff's hearing testimony.
Ms. Marta's opinion is also internally inconsistent. For example, although she wrote that plaintiff "cannot interact rationally" with the public or with coworkers (R. 690), she also checked the "no" box when asked whether plaintiff's ability to interact appropriately with supervisors, coworkers, or the public was "affected by [her] impairments," and left the rest of that section of the form blank. (R. 692.)
Further, a review of the record shows that the more restrictive portions of Dr. Dubro's and Ms. Marta's opinions were undercut by plaintiff's self-report as to her activities of daily living, including caring for her son, managing his medications, light housekeeping (limited only by her physical impairments), money management (which she said she handled with the assistance of a calculator), shopping - limited by her son's behavior, not her own mental functioning (R. 612, 620) - and regularly taking public transportation. Even Ms. Marta acknowledged, in her medical source statement, that plaintiff is "able to do all ADLs." (R. 690.) Since a searching review of the record shows that the substance of § 416.920c(b)(2) was not traversed, I conclude that although the ALJ erred in failing to articulate the supportability and consistency factors with respect to the opinions of Ms. Marta and Dr. Dubro, the error was harmless.
D. The Decision of the ALJ Is Supported by Substantial Evidence
The ALJ's determination that plaintiff was mentally capable of performing simple, unskilled work at SVP 1-2, involving no contact with the public and only occasional contact with coworkers and supervisors, is supported by the extensive MCMH treating notes in the record, plaintiff's statements as to her daily activities, the opinion of Dr. Jansky, and the portions of Dr. Dubro's and Ms. Marta's opinions accepted by the ALJ. It is also supported by the opinion of Dr. Zunino of Fedcap, who wrote that plaintiff needed a "[l]ow stress environment" (R. 602) but did not otherwise describe any mental limitations on her ability to work.
The ALJ's determination that plaintiff was physically capable of medium work with significant additional limitations - restrictions on climbing, balancing, kneeling, crouching, stooping, crawling, use of the lower extremities and avoidance of hazards and respiratory irritants -is also supported by substantial evidence in the record, including the examinations performed by Dr. Finegan and Dr. Zunino and portions of their opinions. On examination, neither physician noted any respiratory issues, and although plaintiff reported a history of asthma, she also reported that she controlled it with medication, and had never gone to the ER or been hospitalized for it. (R. 618.) The only musculoskeletal abnormality noted by Dr. Zunino was mild lumbar tenderness. (R. 598.) Plaintiff's straight leg raising test that day was "equivocal" because plaintiff had pain from the eczema affecting her lower extremities. (Id.) Dr. Finegan, for her part, noted that plaintiff was "limping slightly on the left," had a Baker's cyst on the left knee, and could perform only a quarter squat (due to left knee pain), but had a negative straight leg raising test bilaterally, full strength in both her upper and lower extremities, intact hand and finger dexterity, and full ROM except in the shoulders and on lumbar flexion. (R. 620-21.) The ALJ accommodated plaintiff's knee impairment by incorporating significant limitations on climbing, balancing, kneeling, crouching, stooping, crawling, and use of the lower extremities into his RFC formulation. (R. 39.)
There is no medical evidence in the record concerning plaintiff's reported anemia, headaches, vertigo, or stomach ulcers. Further, although both Dr. Zunino and Dr. Finegan noted plaintiff's severe eczema, neither of them (nor plaintiff, for that matter) suggested that her skin condition restricts her ability to work, except that, as Dr. Finegan opined, she should not be "exposed to solvents or agents known to cause contact dermatitis." (R. 623.) The ALJ accommodated this restriction by limiting plaintiff to jobs that did not expose her to "odors, dust, fumes, gases, poor ventilation, toxic dusts, [or] chemicals." (R. 39.)
I note as well that although the ALJ did not fully accept Dr. Finegan's opinion, the physical RFC that he formulated generally incorporates more limitations than those proposed by Dr. Finegan, with the exception of her recommendation that plaintiff "not perform any tasks involving either arm above shoulder height." (R. 623.) If the ALJ's failure to incorporate that shoulder restriction into his RFC formulation was error, the error was harmless, because, according to the VE, only one of the jobs that satisfied his hypothetical - that of "hand packager" - would be precluded if the hypothetical claimant had a "reaching" limitation. (R. 64.)
To be sure, there is some evidence in the record that would support the conclusion that plaintiff had greater limitations than those the ALJ incorporated into his RFC determination. But that is not the test. "If the reviewing court finds substantial evidence to support the Commissioner's final decision, that decision must be upheld, even if substantial evidence supporting the claimant's position also exists." Johnson v. Astrue, 563 F.Supp.2d 444, 454 (S.D.N.Y. 2008). Having found that the ALJ's decision was free of legal error and supported by substantial evidence, I am required, under the "very deferential standard of review" that applies to ALJ fact-finding, to accept the Commissioner's RFC determination. Brault, 683 F.3d at 448; see also Blalock v. Berryhill, 2018 WL 6332896, at *14 (S.D.N.Y. Nov. 8, 2018) ("The existence of contrary evidence does not negate substantial evidence supporting the ALJ's decision.").
VII. CONCLUSION
For the reasons set forth above, I recommend that the Commissioner's motion (Dkt. 22) be GRANTED and that this case be closed.
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. Ronnie Abrams at 40 Foley Square, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Abrams. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).