Opinion
20-CV-05490 (JPC) (BCM)
03-31-2022
GLORIA MARIO ROSARIO, Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION TO THE HON. JOHN P. CRONAN
BARBARA MOSES UNITED STATES MAGISTRATE JUDGE
Plaintiff Gloria Mario Rosario brings this action pursuant to § 205(g) of the Social Security Act (the 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 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). For the reasons that follow, I respectfully recommend that plaintiff's motion (Dkt. No. 20) be granted, that defendant's motion (Dkt. No. 24) be denied, and that the case be remanded to the Commissioner for further proceedings.
Kilolol Kijakazi, the Acting Commissioner of Social Security, is substituted in the case caption for former Commissioner Andrew Saul in accordance with Fed.R.Civ.P. 25(d).
I. BACKGROUND
A. Procedural Background
On February 1, 2017, plaintiff submitted her application for DIB, asserting disability since February 27, 2015 due to sepsis, pneumonia, fibromyalgia, anal fissures, anxiety, depression, panic disorder, and claustrophobia. See Administrative Record (Dkt. No. 15) (hereinafter "R. ") at 86-87, 260. On June 29, 2017, the Social Security Administration (SSA) denied her claim. (R. 101.) On August 23, 2017, plaintiff requested a hearing before an Administrative Law Judge (ALJ). (R. 108-109.) The hearing, at which plaintiff was represented by counsel, took place on February 14, 2019, before ALJ Michael D. Burrichter. (R. 37-85.) Vocational expert (VE) Janice S. Hastert also appeared and testified. (R. 76.) In a written decision dated May 10, 2019 (Decision), ALJ Burrichter determined that plaintiff was not disabled within the meaning of the Act. (R. 13-29.) On the same day, plaintiff requested Appeals Council review. (R. 217.) The Appeals Council denied that request on May 19, 2020 (R. 1), making the ALJ's determination final.
B. Personal Background
Plaintiff was born on November 8, 1972, in New York City. (R. 48, 1075.) Her father was abusive, and she spent part of her childhood in shelters with her mother and brother. (R. 1392.) Plaintiff graduated from high school, attended college (but did not graduate), and was certified as a medical assistant. (R. 48-49.) She has an ex-husband, with whom she had two daughters, and an ex-wife, whom she also describes as abusive. (R. 1392.) From 2004 to 2015 she worked as a secretary, babysitter, bill collector, receptionist, phone operator, and medical assistant. (R. 49-56.) She was employed as a medical assistant in Missouri in February 2015 when she stopped working, due primarily to anal fissures, which caused bleeding, spasms, and "a lot of pain." (R. 55.) Thereafter, in 2017, plaintiff left her wife and returned to New York, where she initially lived with an aunt, until that relationship proved too difficult, at which point plaintiff moved into a "psychiatric women's shelter," which is where she was living at the time of her hearing. (R. 47.)
II. PLAINTIFF'S MEDICAL HISTORY
Plaintiff's medical history since her claimed onset date is complex, including multiple physical and mental diagnoses (14 of which the ALJ ultimately found to be "severe" impairments), surgery, at least three periods of inpatient hospitalization (one of them requiring intubation for respiratory failure and two of them psychiatric), a course of partial psychiatric hospitalization, physical therapy, individual and group mental health therapy, injections, and dozens of oral and inhaled medications. As of the date of her hearing, plaintiff used a walker to ambulate outside her home, showered with the aid of a shower chair, relied on a continuous positive airway pressure device (CPAP) to sleep, and took nine prescription medications on a daily basis, including an anticonvulsant, a muscle relaxer, a cocktail of antidepressants, an antipsychotic, a sedative, and both long- and short-acting inhaled asthma medications. For clarity, the relevant portions of plaintiff's medical records, described below, are organized primarily by diagnosis.
A. Treatment Records
1. Hemorrhoidal Pain and Anal Fissures
From July 2015 through September 2016, plaintiff was treated at UM Health Care (at the University of Missouri) for anal fissures and related issues. On April 18, 2016, after conservative therapy failed to provide relief, she saw Zihao Wu, M.D., for unhealed anal fissures and rectal pain and bleeding which by then had lasted two years and had rendered plaintiff "unable to work or do any activities she enjoys for the last year." (R. 725-28.) Plaintiff reported that over the past year, the pain and bleeding had worsened, especially with defecation, and that she spent "all day in bed crying due to the pain." (Id.) Dr. Wu advised a "more aggressive" approach, including "Botox treatment and sphincterotomy." (R. 728.) Thereafter, plaintiff received Botox injections, but they "helped for only [a] limited amount of time." (R. 639.) On August 16, 2016, plaintiff underwent a hemorrhoidectomy and partial lateral internal sphincterotomy. (R 761-63.) By September 2016, plaintiff's pain was "significantly reduced after the surgery." (R. 777-78.)
Plaintiff's medication list, at the time of her visit with Dr. Wu, included injectable and topical lidocaine (an anesthetic), Fluoxetine (an antidepressant), albuterol (a bronchodilator), nitroglycerin ointment (a vasodilator), and a stool softener. (R. 726.)
2. Mental Health Issues
Plaintiff has a longstanding history of depression and anxiety, and was involuntarily hospitalized in 2010 after a suicide attempt. (R. 982, 984.) Starting on September 4, 2015, Hanna Klara Gov-Ari, M.D., treated plaintiff for "severe" generalized anxiety disorder (GAD), panic attacks, and major depression (R. 654-58), and started her on Celexa (an antidepressant), followed by Paxil (another antidepressant). (R. 658, 644.) By October 29, 2015, plaintiff was feeling better and was assessed to have mild to moderate GAD and "no depression," though plaintiff still reported that her work, home, and life were "somewhat difficult." (R. 644-45.) In early February 2017, after plaintiff was discharged from the hospital following treatment for pneumonia (discussed below), her depression worsened and Dr. Gov-Ari increased her Fluoxetine prescription and added Amitriptyline (a tricyclic antidepressant). (R. 626, 637.) On March 13, 2017, Dr. Gov-Ari added Wellbutrin (another antidepressant). (R. 625.)
a) Blueler Psychotherapy Center
Beginning in January 2018, in New York, plaintiff sought treatment at the Blueler Psychotherapy Center (BPC) for frequent panic attacks, anxiety, depression, and crying spells. (R. 982.) Gary Weinstein, M.D. and Katarzyna Oskarbska, LMHC, diagnosed moderate bipolar disorder. (R. 1017.) On March 1, 2018, plaintiff saw Sharon Sageman, M.D., reporting suicidal thoughts, chronic insomnia, depression, mood swings, and racing thoughts. (R. 1018.) Dr. Sageman prescribed Risperdal (an antipsychotic), Wellbutrin, Lexapro (another antidepressant), and Vistaril (an antihistamine also used as a sedative). (R. 1049.) On May 10, 2018, plaintiff reported feeling "a little better" after her Risperdal dose was increased (R. 1059) and later that month she began weekly psychotherapy sessions. (R. 1501.)
After her psychiatric hospitalizations (discussed below), plaintiff returned to BPC for weekly psychotherapy and medication management. (R. 1493-1502.)
b) Montefiore
From July 3 through July 19, 2018, plaintiff was a psychiatric inpatient at Montefiore Medical Center (Montefiore). (R. 1067-1108.) She presented with suicidal ideation after a fight with her aunt and "reportedly wanted to OD on Xanax." (R. 1074.) Plaintiff responded "well" to group psychotherapy, showing "significant progress over course of time on the unit in dealing with challenges of depression and anxiety." (R. 1073.) She was discharged on July 19, 2018, with prescriptions for Lexapro, Wellbutrin, and Abilify (an antipsychotic), among other medications (R. 1083), and two new diagnoses: chronic post-traumatic stress disorder (PTSD) stemming from the abuse she witnessed and suffered in her chaotic childhood; and borderline personality disorder (BPD). (R. 1082.) Montefiore recommended that she seek "intensive partial hospitalization treatment" to support her in long-term treatment planning. (Id.)
c) North Central Bronx Hospital
On July 23, 2018, plaintiff was admitted to the partial hospitalization program (PHP) at North Central Bronx Hospital (NCB) with a Global Assessment of Functioning (GAF) score of 30. (R. 1387-1481.) She "consistently attend[ed] PHP and participat[ed] in groups as she settle[d] in." (R. 1480.) On August 24, 2018, Alissa Kyloff, Psy. D., wrote that plaintiff "has continued to demonstrate some improvements this period but remains symptomatic." (R. 1410.) On August 31, 2018, plaintiff was discharged from the PHP with a GAF score of 45. (R. 1478-80.) At discharge, her psychotropic medications included Wellbutrin, Lexapro, and Seroquel (an antipsychotic). (R. 1480.)
"GAF rates overall psychological functioning on a scale of 0-100 that takes into account psychological, social, and occupational functioning." Zabala v. Astrue, 595 F.3d 402, 405 n.1 (2d Cir. 2010) (citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, at 34 (4th ed. rev. 2000) (DSM-IV)). A GAF score in the range of 21 to 30 denotes that the patient's "[b]ehavior is considerably influenced by delusions or hallucinations or serious impairment, in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day, no job, home, or friends)." DSM-IV, at 32. The Fifth Edition of the DSM discarded the use of GAF scores, see Morales v. Berryhill, 2018 WL 679566, at *1 (S.D.N.Y. Jan. 8, 2018), and in 2013, the SSA issued a bulletin limiting the use of GAF scores in disability proceedings, noting that "there is no way to standardize measurement and evaluation." SSA, "Global Assessment of Functioning (GAF) Evidence in Disability Adjudication," AM-13066 (July 22, 2013), revised (Oct. 14, 2014). The Commissioner may still consider GAF scores as one factor among others. Mitchell v. Colvin, 2015 WL 5306208, at *12 (S.D.N.Y. Sept. 10, 2015).
"A GAF in the range of 41 to 50 indicates '[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).'" Zabala, 595 F.3d at 406 (quoting DSM-IV, at 34).
d) Montefiore
Later that same day, plaintiff was re-admitted to Montefiore for suicidal ideation, and remained there for a week, until September 6, 2018. (R. 1141-1265.) Plaintiff reported that her aunt told her to move out and live in a shelter, and she stated that she "would rather be dead than have to live in a shelter." (R. 1170, 1178-79.) During her second inpatient stay at Montefiore, she continued to feel depressed, with low energy, poor concentration, and decreased sleep, though she no longer felt suicidal by the time of her discharge. (R. 1146, 1150.)
e) Acacia Network
On January 22, 2019, plaintiff visited Acacia Network facility for a psychiatric evaluation by Adele Sand, LCSW. (R. 1482-86.) Plaintiff was by then living at the Stadium Women's Shelter. (R. 1482.) Ms. Sand noted that plaintiff was sad, irritable, and anxious, with a constricted affect and a "fair" memory, fund of knowledge, and judgment. (R. 1485.) She reported difficulty with mobility and noted that she used Access-A-Ride or other car services to travel. (R. 1486.) She was "anxious" about using public transportation. (Id.) Ms. Sand concluded that plaintiff was "relatively stable psychiatrically," and did not present an "imminent danger" to herself or others, but would be "unable to maintain her own apartment" and would need a home health aide since she is unable to "bend over and keep floors and tubs clean without assistance." (Id.) Ms. Sands assessed that plaintiff "will require a supportive housing environment which would facilitate, support, and promote her adherence with all scheduled appointments and medication adherence and thereby foster mental fitness." (Id.)
3. Respiratory Issues
On January 16, 2017, after suffering for several days from what was initially diagnosed as bronchitis and/or panic attacks, plaintiff was admitted to the UM Health Care Medical Intensive Care Unit (MICU) after presenting with chest pain, shortness of breath, and "oxygen saturation in the 70s," "requiring significant amounts of oxygen." (R. 358, 362.) A chest x-ray indicated a borderline enlarged heart and a decrease in lung capacity. (R. 360.) The next day, plaintiff was sedated and intubated for acute respiratory failure and hypoxemia (oxygen deficiency) due to community acquired pneumonia. (R. 367, 372-73.)
Normal oxygen saturation readings, via pulse oximeter, "usually range from 95 to 100 percent. Values under 90 percent are considered low." Mayo Clinic, "Hypoxemia," https://www.mayoclinic.org/symptoms/hypoxemia/basics/definition/sym-20050930 (last visited March 15, 2022).
Plaintiff was extubated on January 24, 2017 (R. 381-82, 391-92), and discharged on January 30, 2017 (R. 390-95), with home oxygen (2L/min.). (R. 392.) The hospital also recommended a wheeled walker, which plaintiff obtained, and home health aide, which was "not a financial possibility." (R. 392-93.) At her February 3, 2017 follow-up visit with Dr. Gov-Ari, plaintiff completed a six-minute walk test and was cleared to discontinue the use of home oxygen, but complained of worsening depression as well as muscle and bone pain (discussed below). (R. 633-38.) By February 22, 2017, plaintiff was "reasonably stable" from a respiratory standpoint, with only "mild shortness of breath" (R. 346), although her spirometry (pulmonary function test) was "suggestive of restrictive defect." (R. 350.)
On June 5, 2017, plaintiff visited Mizzou Urgent Care for cough, shortness of breath, wheezing, body aches, chills, and headache. (R. 690-93.) Karli Ross Echterling, M.D. diagnosed bronchitis and prescribed an antibiotic and a Qvar inhaler. (R. 690-92.) On June 9, 2017, plaintiff saw Joseph Beckmann, M.D., who found that her illness was likely "RAD" [restrictive airway disease] or an "Asthma exasperation," and prescribed Prednisone (a steroid). (R. 699.) By November 2017, plaintiff's asthma symptoms were "well controlled." (R. 1332.)
4. Insomnia and Sleep Apnea
After an overnight sleep study at UM Health Care on January 27, 2016 (R. 547-51), a continuous positive airway pressure (CPAP) machine was recommended to improve plaintiff's sleep apnea. (R. 548.) On November 2, 2017, in New York, Deepak Vadhan, M.D., recommended that she undergo a split night study. (R. 1334.) The study, conducted on November 28, 2017, revealed "severe Sleep-Disordered Breathing" with episodes of hypoxemia. (R. 1353.) However, sleep architecture was improved and the "majority of the respiratory events were abolished with CPAP therapy." (Id.) On December 5, 2017, Dr. Vadham adjusted plaintiff's CPAP and prescribed Phentermine (an appetite suppressor) to assist with weight loss. (R. 1335-36.)
5. Fibromyalgia and Pain
On February 3, 2017, Dr. Gov-Ari noted that plaintiff had "diffused joint and 'bone' pain" and an "underlying diagnosis of fibromyalgia." (R. 637.) At her February 14, 2017 appointment, Dr. Gov-Ari noted that plaintiff's fibromyalgia was "uncontrolled." (R. 630.) On March 13, 2017, plaintiff reported a "pins and needle sensation on her left anterior leg," as well as weight gain, which she attributed to having stopped smoking after her hospitalization. (R. 619.) On April 25, 2017, plaintiff told Dr. Gov-Ari and that she was depressed, sleeping poorly, and had pain standing and walking, which she attributed in part to her weight gain. (R. 667.) Her fibromyalgia was still "uncontrolled." (R. 671.) Dr. Gov-Ari prescribed Cymbalta (an antidepressant frequently prescribed for nerve pain) to "help with the depression and the pain." (Id.)
On November 1, 2017, in New York, plaintiff visited her primary care provider Javid Yadegar, M.D., who started her on Lyrica (an anticonvulsant that is also prescribed for nerve pain) for her fibromyalgia, Xanax (a benzodiazepine) for anxiety, Lexapro for depression, and Metformin for diabetes. (R. 1289-90.) On November 10, 2017, plaintiff saw Dr. Yadegar again, complaining of neck, left knee and back pain, as well as "[g]eneral muscle ache." (R. 1293-04.) On February 2, 2018, Dr. Yadegar referred plaintiff to pain management. (R. 1301.) From October 2018 through December 2018, plaintiff attended physical therapy two to three times weekly for upper back pain, neck pain, and cervical pain. (R. 1376-80.) As of October 24, 2018, plaintiff's physical therapist noted that she had tenderness and pain in the upper back, an antalgic gait, and difficulty with both sitting and standing tolerance, as well as sit-to-stand transfers, bed transfers, and "lifting ability." (R. 1386.)
6. Obesity
By March 13, 2017, plaintiff's body mass index (BMI) was in the 50.0-59.9 range, which is considered "morbidly obese." (R. 620.) On April 25, 2017, Dr. Gov-Ari informed plaintiff that she was not a candidate for Phentermine or bariatric surgery due to her recent intubation. (R. 671.) By June 27, 2017, plaintiff had gained another 22 pounds and was depressed about it. (R. 700.) Her BMI was 60 and she suspected that her weight was causing her shortness of breath and back pain. (R.700, 703.) Dr. Gov-Ari encouraged her to lose weight, which would "help with her mood and also her physical complaints." (R. 704.)
Patients with BMIs over 25.0 are classified as "overweight," while those with BMI over 30 are classified as obese. Mayo Clinic, "Obesity," https://www.mayoclinic.org/diseases- conditions/obesity/symptoms-causes/syc-20375742. Morbid obesity," now frequently called "Class III" obesity, is a term generally used when a patient's BMI is over 40. Cleveland Clinic, "Class III Obesity (Formerly Known as Morbid Obesity)," https://my.clevelandclinic.org/health/diseases/21989-class-iii-obesity-formerly-known-as-morbid-obesity (last visited March 15, 2022).
On August 11, 2017, plaintiff told Dr. Gov-Ari that her depression was "much worse" and was "related to her continuous weight gain," which also caused back and knee pain that were "debilitating," such that she was "hardly able to ambulate" and unable to help with "daily activities." (R. 705.) On December 5, 2017, plaintiff's weight was 293 pounds and her BMI was 59.17, at which point (as noted above) Dr. Vadham prescribed Phentermine. (R. 1335-46.) On June 26, 2018, when plaintiff visited Dr. Yadegar, her weight was down to 262 pounds, which made her BMI 57.2, still well into the morbid obesity range. (R. 1306-1308.)
Dr. Yadegar's treatment notes from June 26, 2018 give plaintiff's BMI as 79.94 (R. 1306), but this appears to be a typographical error.
7. Knee Osteoarthritis
From December 5, 2017 to January 16, 2018, plaintiff attended physical therapy for "bilateral primary osteoarthritis of the knees." (R. 1362-74.) Plaintiff presented with knee and back pain, severe enough to hinder her "bed mobility and ambulation skills," as well as "radiating weakness and numbness to both legs" affecting her ability to perform "standing up activities" such as grooming, bathing, dressing, meal preparation, cleaning, and laundry. (R. 1364.) She walked with a cane (R. 1365), but experienced "sever[e] pain with walking, stairs and ADL's." (R. 1366.) Her treatment plan included ultrasound/phonophoresis, therapeutic exercise, manual therapy, hot/cold packs, and electrical stimulation. (R. 1365.)
On January 12, 2018, plaintiff underwent an LD (lidocaine/depo-medrol) injection to the left knee. (R. 1266.) She reported that "the pain is stronger when sitting down for long periods." (Id.) Her McMurray's and Patella Grind test were positive, and the left knee showed "tenderness with palpation," but plaintiff had full strength in all major muscle groups and full range of motion, with pain on flexion. (R. 1267.) By February 9, 2018, there was "less tenderness with palpitation" on the left knee. (R. 1269-70.)
On March 23, 2018, plaintiff again reported bilateral knee pain, worse in the right knee, and asked for a right knee injection, which was administered that day, leading to a "50% reduction in pain within 5 minutes." (R. 1271-72.) On May 4, 2018, plaintiff stated that her knee pain was "not constant" and at a level of only two (out of ten). (R. 1273-74.) Two weeks later, however, plaintiff reported that her bilateral knee pain level was an eight, with her right knee again worse, and she was given an injection of Supartz (sodium hyaluronate), which led to an immediate decrease in her pain in that knee (to "0/10"). (R. 1275-76.) Additionally, plaintiff was referred for an orthopedic evaluation. (R. 981.)
On June 22 and October 17, 2018, plaintiff received a Supartz injection in the left knee (R. 1278, 1284.) On February 4, 2019, she saw Danielle Sher, M.D., at BronxCare Orthopedics for "significant bilateral knee pain since November 2017." (R. 1504.) Her x-rays revealed "mild arthrosis" in both knees. (R. 1505.) Dr. Sher administered cortisone injections, prescribed Mobic (a brand name for meloxicam, a non-steroidal anti-inflammatory), and counseled plaintiff that "most important thing to decrease knee pain would be continued weight loss." (Id.)
8. Upper Extremity Impairments
On March 15, 2018, Dr. Yadegar diagnosed plaintiff with carpal tunnel syndrome and referred her to an orthopedic surgeon. (R. 1303-04.) On February 20, 2019, plaintiff visited Dr. Sher at BronxCare Orthopedics (using a walker) and explained that for "several years" she had experienced "pain in both wrists with radiation of the pain to the elbows," and that she could not "hold a cell phone up to her ear for long without feeling numbness and tingling in the hands."(R. 1511-12.) Tinel's sign was positive in both wrists, as were Durkan's test and Phalen's test (diagnostic for carpel tunnel syndrome). (Id.) Dr. Scher referred plaintiff for nerve conduction velocity and electromyography (EMG/NCV) studies and again prescribed meloxicam. (R. 1512.)
On March 1, 2019, plaintiff visited Pramila Kolisetty, M.D., at Siri Medical Associates, for "pain and numbness in the hands." (R. 1487-88.) Dr. Kolisetty performed EMG/NCV studies that showed "prolonged distal onset latency," "decreased conduction velocity," and "prolonged distal peak condition velocity" on both sides. (Id.) Additionally, "[t]he right ulnar sensory nerve showed reduced amplitude." (Id.) Dr. Kolisetty explained that "[t]his is a[n] abnormal study which revealed BL Moderate SENSORY MOTOR demyelinating CTS." (R. 1488.)
B. Opinion Evidence
Given the number and complexity of plaintiff's medical conditions, the record contains surprisingly little medical opinion evidence. There are no medical source statements from any of plaintiff's treating physicians, nor from any consultative examiners. Instead, the record contains (and the ALJ relied on) the opinions of the two state agency reviewers who assessed plaintiff's mental and physical residual functional capacity (RFC) in connection with the SSA's initial disability determination on June 23, 2017. Neither of them examined the claimant; rather, they examined the treating notes and other medical records assembled for their review at that time.
1. Dr. Cottone
Robert Cottone, Ph.D., rendered his opinion as to plaintiff's mental functioning on June 21, 2017, well prior to either of plaintiff's psychiatric hospitalizations. (R. 90-91, 95-97.) First, he considered whether plaintiff had an impairment that met or equaled the impairments listed in 20 C.F.R. pt. 404, subpt. P, app. 1. (R. 90-91.) After considering Listing 12.04 (depressive, bipolar, or related disorders) and Listing 12.06 (anxiety and obsessive-compulsive disorders), Dr. Cottone opined that plaintiff did not meet the criteria for either. (Id.) Next, Dr. Cottone considered plaintiff's mental RFC (R. 95-97), finding that while she had limitations in each of the four functional areas assessed, she retained the ability to "understand and remember simple instructions," "carry out simple work instruction[s]," "maintain adequate attendance and sustain an ordinary routine without special supervision," "interact adequately with peers and supervisors," and "adapt to most unusual changes common to a competitive work setting." (R. 97.)
2. Dr. Trowbridge
Denise R. Trowbridge, M.D., assessed plaintiff's physical RFC on June 23, 2017, prior to her osteoarthritis or carpal tunnel syndrome diagnoses. (R. 92-95.) Dr. Trowbridge noted that surgery had resolved plaintiff's anal fissures and that she had been "reasonably stable" from a pulmonary function standpoint since her discharge from the hospital. (R. 94-95.) Dr. Trowbridge opined that plaintiff could occasionally lift and/or carry twenty pounds; frequently lift and/or carry ten pounds; stand and/or walk for a total of two hours in an eight-hour work day; and sit for a total of 6 hours in an 8-hour workday. (R. 92.) She added that plaintiff could occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and crawl, but could never climb ladders, ropes, or scaffolds, and should avoid extreme cold, humidity, fumes, or hazards. (R. 93-94.) Dr. Trowbridge noted that due to her obesity plaintiff "would likely be limited to less than a full pace of lighter work on a sustained basis," but "could do sedentary work and with bariatric surgery her condition is likely to improve." (R. 93.)
III. HEARING
A. Plaintiff's Testimony
At her February 12, 2019 hearing, plaintiff testified that she was forced to leave her job as a medical assistant "because that's when I started having problems with the anal fissures and I would bleed during the day and had spasms and a lot of pain." (R. 55.) Asked what kept her from returning to the workforce, plaintiff testified that she was diagnosed with fibromyalgia in 2016, after experiencing "body pains," that her fibromyalgia has "gotten worse," and that in combination with her osteoarthritis it caused back, joint and leg pain and prevented her from "sit[ting] for long periods" and walking "for too long." (R. 56.) She explained that she loved her job as a medical assistant but "you have to be one your feet," which she could no longer do. (Id.)
Asked about sedentary work, plaintiff testified that he could not sit "for long periods" and had "carpal tunnel," which causes hand pain and prevents her from holding a pen. (R. 57.) She told the ALJ, "I'm in constant pain. I wake up in pain, and I go to sleep in pain." (Id.) She added that due to her mental illness she has "a lot of anxiety" and became "overwhelmed when I have to do something or when I'm given paperwork." (Id.) Plaintiff further explained that although her anal surgery "help[ed] me," she still needs to stay close to a bathroom, for fear of accidents. (R. 58.) Asked about her walker, which she brought to the hearing, plaintiff testified that she had been using it since January 2017 and still needed it for "some kind of support." (R. 59.) Asked about her pulmonary function, plaintiff stated, "It's okay," adding that she used a nebulizer daily, as well as two inhalers, "but I do lose my breath a lot." (Id.)
When the ALJ turned the subject to plaintiff's mental health, she reported that she lived in a "chaotic" environment that had made her depression and anxiety worse. (R. 60.) Sometimes her depression kept her "in bed" and caused her to miss appointments. (Id.)
When asked about her day-to-day functioning, plaintiff responded that she could not lift groceries on her own because her arm, wrist, and hands hurt. (R. 61.) She could not lift a "12 pack box of sodas." (Id.) She could lift a gallon of milk, and pour herself a glass, but could not carry a gallon home from a store because of pain and hand numbness. (Id.) However, she could pour herself a glass of milk and return it to the refrigerator. (Id.) She could stand for "maybe ten minutes" before she had to "sit in my walker." (Id.) Plaintiff noted that even when on line for food at the shelter "I have to sit while I'm on line 'cause I can't stand." (R. 62.) Plaintiff estimated that she could walk half a block before needing to rest and sit for 30 to 40 minutes before needing to get up. (Id.)
With respect to her living situation, plaintiff testified that she lived in a homeless shelter where she shares a room with three other women. (R. 63.) At the shelter, plaintiff had to make her bed, which she did with help, but had no other chores. (Id.) She did not read books because she could not concentrate or focus, but she watched television. (Id.) She stopped driving in February 2017 due to panic attacks. (Id.) She relied on Access-A-Ride to go to appointments, because "I can't do the stairs for the train." (R. 64.) She went to physical therapy twice a week and purchased sundries at a store next door to the physical therapist, to take advantage of the "Medicaid transportation" that "takes me there." (R. 64-65.) She used her phone to check the weather and play Solitaire, and had "a Facebook so I can see how my family's doing." (R. 65.) She stopped smoking marijuana when she left Missouri and her ex-wife. (R. 66)
Under questioning from her own attorney, plaintiff explained that when she returned home after being intubated, she received oxygen for a month. (R. 67-68.) During her recovery she had difficulty standing and walking and needed help from her then-wife to cleanse herself. (Id.) Her wife was frustrated, and their relationship "started falling apart." (R. 68-69.) Plaintiff gained weight, used a walker at home, a chair in the shower, and a wheelchair to attend her daughter's graduation. (Id.) After leaving her wife and moving back to New York, plaintiff started injections for her knee pain (R. 69) and went to physical therapy two to three times a week, which gave her "a little bit of relief." (R. 70.) Plaintiff was told by an orthopedist to wait until she lost weight before undergoing knee surgery. (Id.) She was then told by a weight specialist that she needed to wait until her weight loss "plateaued" before scheduling bariatric surgery. (R. 71.)
At the time of her hearing plaintiff was taking albuterol and Breo via nebulizer and/or inhalers for asthma (R. 59); Wellbutrin, Lexapro, Seroquel, and Vistaril for her mental illness (R. 60, 72); and Lyrica, Gabapentin, cyclobenzaprine (generic Flexeril, a muscle relaxant), and ibuprofen for her fibromyalgia. (R. 71.) Her medications made her "dizzy" and "sleepy." (R. 71.) She used a CPAP machine to sleep, but still had trouble sleeping, due to her carpal tunnel pain, and regularly fell asleep during the day. (R. 72.)
When her attorney started to ask plaintiff about her psychiatric hospitalizations, ALJ Burrichter interrupted to say, "we've got about five minutes left of hearing time." (R. 72.) Counsel then offered to "cut it a little bit short" (R. 73), after which he elicited from plaintiff the testimony that if she had to deal with a stressful situation at work or a negative interaction with a co-worker, she "would probably be very anxious and get overwhelmed and have to get the supervisor or something[.]" (R. 75.)
B. VE Testimony
VE Hastert testified that plaintiff's past relevant work was as a medical assistant (DOT 079.364-018), which is a skilled, "light" job with an SVP of 7; a receptionist (DOT 237.367-038), which is a semi-skilled, "sedentary" job with an SVP of 4; a bill collector (DOT 241.357-010), which is a skilled, "sedentary" job with an SVP of 5; a school secretary (DOT 201.362-022), which is a skilled, "sedentary" job with an SVP of 5; a secretary (DOT 201.362-030), which is a skilled, "sedentary" job with an SVP of 6; and a babysitter (DOT 201.677-010), which is a semi-skilled, "medium" job with an SVP of 3. (R. 77-78). The ALJ then asked about a hypothetical claimant with the plaintiff's age, education, and past job, who:
. . . could lift and carry up to 20 pounds occasionally and lift or carry up to 10 pounds frequently, could stand and/or walk for two hours out of an eight hour workday and sit for six hours out of an eight hour workday. They would require the use of an assisting device for ambulation, standing, and balance, but they would remain at the workstation on task, and the opposite upper extremity could be used to lift and/or carry up to the exertional limitation. They should never climb ladders, ropes, scaffolds and can occasionally use foot controls bilaterally. They should never work at unprotected heights or with moving mechanical parts. They should never be exposed to humidity and wetness, dust, odors, fumes, and pulmonary irritants, extreme cold, and extreme heat. They are able to understand, remember, and carry out simple, routine, and repetitive tasks in a work environment with no fast pace production requirements involving only simply work related decisions and with only occasional judgment and work place changes. And they can frequently respond to and have interaction with supervisors and co-workers and occasionally with the general public.(R. 79.)
The VE indicated that this hypothetical claimant's exertional level was "sedentary, " that he or she could not perform any of plaintiff's past work, but that there were three unskilled, sedentary jobs in the national economy, which the hypothetical claimant could perform, including ampoule sealer (DOT 559.687-014), final assembler (DOT 713.687-018), and document preparer (DOT 249.587-018). (R. 79.)
"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). "Sedentary work also generally involves up to two hours of standing or walking and six hours of sitting in an eight-hour work day." Crowell v. Astrue, 2011 WL 4863537, at *3 (S.D.N.Y. Oct. 12, 2011) (quoting Perez v. Chater. 77 F.3d 41, 46 (2d Cir. 1996)).
The ALJ asked about a second hypothetical claimant with the same limitations as the first except that the "individual's truly at a range of sedentary in that they can lift and carry up to ten pounds occasionally and lift or carry less than ten pounds frequently, stand and/or walk for two hours out of an eight hour workday, and sit for six hours out of an eight hour workday." (R. 80.) The VE indicated that "[t]he three occupations cited would remain," and that there would not be a reduction in job numbers because of the additional limitations. (Id.)
The ALJ then asked about a third hypothetical claimant, with the same limitations as the second except that "in addition to normal breaks, and due to the combined effect of the severe impairments, the individual would be off task more than 15% of the time in an eight hour workday." (R. 80.) The VE replied that there would be "no competitive employment" for the third hypothetical claimant. (R. 81.)
On cross-examination, plaintiff's counsel put several additional hypotheticals to the VE, all involving more restrictive functional limitations than those described by the ALJ. As to each, the VE responded that the limitations described would rule out competitive employment. (R. 81-83.) Plaintiff's counsel also asked the VE about employer "tolerance for absences during a month." (R. 84.) The VE replied "somewhere in the range of eight to ten days a year or less than one day a month." (Id.)
IV. ALJ DECISION
A. Standards
A claimant is "disabled" within the meaning of the Act if she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The impairments must be "of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In his Decision, the ALJ correctly set out the five-step sequential evaluation process 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. 22-23.) 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). 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 RFC, age, education, and past relevant work experience. See 20 C.F.R. §§ 404.1512(3), 404.1560(c). "Under the law of this Circuit and the SSA Guidelines, the ALJ must call a vocational expert to evaluate a claimant's significant non-exertional impairments in order to meet the step five burden." Lacava v. Astrue, 2012 WL 6621731, at *18 (S.D.N.Y. Nov. 27, 2012) (citations omitted), report and recommendation adopted, 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012).
Prior to steps four and five, the ALJ must determine the claimant's RFC, that is, the "most [a claimant] can still do despite [her] limitations." 20 C.F.R. § 404.1545(a)(1). The claimant's RFC is determined based on all of the relevant medical and other evidence in the record, including the claimant's credible testimony, objective medical evidence, and medical opinions from treating and consulting sources. Id.; § 404.1545(a)(3).
With respect to medically determinable mental impairments, the regulations further require that the ALJ "rate the degree of [the claimant's] functional limitation based on the extent to which [her] impairment(s) interferes with [her] ability to function independently, appropriately, effectively, and on a sustained basis." 20 C.F.R. § 404.1520a(c)(2). The degree of functional limitation is rated in "four broad functional areas," including the claimant's ability to "[u]nderstand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself." 20 C.F.R. § 404.1520a(c)(3). The degree of limitation in each area is rated on a five point scale: "None, mild, moderate, marked, and extreme." 20 C.F.R. § 404.1520a(c)(4). These ratings are used both at step two, to determine whether a mental impairment is "severe," and at step three, to determine whether a severe mental impairment meets or medically equals a listed impairment.
In order to meet or medically equal a listed mental impairment, a claimant must satisfy the "paragraph A" criteria for that disorder, that is, "the medical criteria that must be present in [the claimant's] medical evidence," as well as either the "paragraph B" criteria or the "paragraph C" criteria. See 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.00A(2)(a)-(c) (emphasis in the original). To satisfy the "paragraph B" criteria, the claimant must demonstrate "an extreme limitation of one, or a marked limitation of two," of the same four broad functional areas described in 20 C.F.R. § 404.1520a(c)(3): the ability to "[u]nderstand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself." See, e.g., 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.04B. To satisfy the "paragraph C" criteria, the claimant must demonstrate that her mental disorder is "serious and persistent," that is, that she has "a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: (1) [m]edical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of [her] mental disorder . . . and (2) [m]arginal adjustment, that is, [the claimant has] minimal capacity to adapt to changes in [her] environment or to demands that are not already part of [her] daily life[.]" See, e.g., 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.04C (emphasis in the original).
B. Application of Standards
At step one, the ALJ found that plaintiff had "not engaged in substantial gainful activity since February 27, 2015, the alleged onset date[.]" (R. 15.) At step two, he found that plaintiff had the severe impairments of "fibromyalgia; osteoarthritis of the knees; type-2 diabetes; bilateral carpal tunnel syndrome; asthma; obstructive sleep apnea; anal fissure and hemorrhoids status-post hemorrhoidectomy and partial lateral internal sphincterotomy; obesity; depression; bipolar disorder; anxiety; panic disorder; borderline personality disorder; post-traumatic stress disorder (PTSD); and polysubstance dependence in remission[.]" (R. 16.)
At step three, the ALJ found that plaintiff did "not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]" (R. 18.) The ALJ first considered Listings 1.02 (major dysfunction of a joint), 3.02 (chronic respiratory disorders), 3.03 (asthma), and 11.14 (peripheral neuropathy). (Id.) With regard to plaintiff's obesity - which is not itself a listed impairment - the ALJ found, after evaluating its "additional and cumulative effects," that "the evidence does not support finding the claimant's condition meets or equals the criteria of a listing," but noted that "the effects of the claimant's obesity have been considered when determining a residual functional capacity for the claimant." (R. 19.)
Next, in assessing plaintiff's mental impairments, the ALJ considered Listings 12.04 (depressive, bipolar, and related disorders), 12.06 (anxiety and obsessive-compulsive disorders), 12.08 (personality and impulse-control disorders), and 12.15 (trauma- and stressor-related disorders), but found that that plaintiff had only "moderate limitations" in each of the four functional areas and therefore did not meet the "paragraph B" criteria for any of those Listings. (R. 19-20.) The ALJ supported his conclusion, as to each functional area, by noting that plaintiff "watches TV, goes to the store twice a week, is able to share a room with some other women at a shelter, and uses the Internet to get weather/news/ Facebook/and games such as Solitaire." (R. 19.) The ALJ also considered whether plaintiff met the "paragraph C" criteria for Listings 12.04, 12.06, and 12.15, and quickly concluded (without further discussion of the record) that "the evidence fails to establish the presence of the 'paragraph C' criteria." (R. 20.)
Before proceeding to step four, the ALJ determined that plaintiff had the residual functional capacity:
. . . to perform sedentary work as defined in 20 CFR 404.1567(a), in that she can lift and carry up to ten pounds occasionally and lift or carry less than ten pounds frequently, stand and/or walk for two hours out of an eight-hour workday, and sit for six hours out of all eight-hour workday. The claimant would require the use of an assistive device for ambulation, standing and balance, but they would remain at the workstation on task and the opposite upper extremity could be used to lift and/or carry up to the exertional limitation. The claimant should never climb ladders, ropes
and scaffolds; and can occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl. The claimant can frequently handle, finger and feel bilaterally. The claimant can occasionally use foot controls bilaterally. The claimant should never work at unprotected heights or with moving mechanical parts. The claimant should never be exposed to humidity/wetness, dust, odors, fumes and pulmonary irritants, extreme cold and extreme heat. The claimant is able to understand, remember, and carry out simple, routine and repetitive tasks in a work environment with no fast-paced production requirements involving only simple work-related decisions, and with only occasional judgment and work place changes. The claimant can frequently respond to and have interaction with supervisors and coworkers, and occasionally with the general public.(R. 20-21.)
In determining plaintiff's RFC, the ALJ concluded that plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms," but that her "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record[.]" (R. 22.)
In weighing the medical opinion evidence, the ALJ gave "significant" weight to the state agency psychological reviewer, Dr. Cottone, because it was "consistent with the claimant's activities of daily living and the limited clinical signs and findings." (R. 25.) The ALJ gave "partial weight" to the opinion of the state agency medical reviewer, Dr. Trowbridge, because it was rendered after reviewing the medical record "as it existed at the time" and did not adequately account for all of plaintiff's physical restrictions. (Id.) The ALJ gave "partial weight" to the "assessed GAF scores," but did not further explain how or to what degree he incorporated them into plaintiff's RFC. (R. 25-26.)
At step four, the ALJ found plaintiff unable to perform any of her past relevant work (R. 27), but at step five, the ALJ found, based on the testimony of VE Hastert, that there were jobs that existed in significant numbers in the national economy that plaintiff could perform. (R. 27- 28.) The ALJ therefore found that plaintiff was not under a disability, as defined in the Act, from February 27, 2015 through the date of the Decision. (R. 28.)
V. ANALYSIS
A. Standard of Review
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 he or she is entitled to judgment as a matter of law. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988); Claudio v. Comm'r of Soc. Sec., 2017 WL 111741, at *1 (S.D.N.Y. Jan. 11, 2017). The law in 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). If there was no legal error, the court must then determine whether the ALJ's decision was supported by substantial evidence. Tejada, 167 F.3d at 773; Calvello, 2008 WL 4452359, at *8.
"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, 2009 WL 50140, at *21 (citing Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) and 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 and citation omitted). Thus, the substantial evidence standard is "a very deferential standard of review - even more so than the 'clearly erroneous' standard." Id.; accord Brown v. Colvin, 73 F.Supp.3d 193, 198 (S.D.N.Y. 2014).
B. The Parties' Contentions
Plaintiff advances four principal arguments, which I summarize here in the order dictated by the five-step sequential evaluation process rather than the order in which they appear in plaintiff's brief. First, plaintiff contends that the ALJ erred at step three in that, rather than analyze the "paragraph C' criteria against the evidence in the record as required, he "merely recited the Part C criteria and then stated that the evidence failed to establish its presence," and in so doing failed to consider plaintiff's psychiatric hospitalizations and related treatment. See Pl. Mem. (Dkt. No. 21) at 28; Pl. Reply Mem. (Dkt. No. 26) at 6-7. Second, plaintiff asserts - seemingly in connection with her step three argument, although the point has broader implications - that the ALJ erred in giving significant weight to the opinion of state agency reviewers Dr. Cottone and Dr. Trowbridge because those opinions were stale. See Pl. Mem. at 29-30; Pl. Reply Mem. at 8. Third, she contends that the ALJ's RFC formulation failed to include all of plaintiff's functional limits, see Pl. Mem. at 18-20, and in particular that the ALJ failed to consider the impact of her symptoms (including pain), see id. at 20-22; improperly relied on her "extremely limited" activities of daily living (ADLs) to support his finding that she had only "moderate limitations" in the four areas of mental functioning, see id. at 22-23; Pl. Reply Mem. at 5-6; "cherry-picked" the evidence, see Pl. Mem. at 23-24; failed to include the combined effect of all of her impairments, including obesity, see id. at 24-27; Pl. Reply Mem. at 7; and failed to incorporate the undisputed evidence that as a result of her hospitalizations plaintiff missed too much work in 2017 and 2018 to be employable. Pl. Reply Mem. at 9. Fourth, plaintiff asserts that the ALJ erred at step five, in that the hypothetical given to the VE was less restrictive than the RFC ultimately formulated by the ALJ, and therefore that the ALJ could not rely on the occupations identified by the VE as evidence that jobs exist in the national economy for an individual with the claimant's age, education, work experience, and RFC. See Pl. Mem. at 16.
The Commissioner contests each of plaintiff's arguments. She contends that the ALJ committed no legal error and that substantial evidence supports his determination at step three, his formulation of plaintiff's RFC, and his ultimate disability determination. See Def. Mem. (Dkt. No. 25) at 20-34.
C. The ALJ Improperly Relied on a Stale Opinion by Dr. Cottone
Plaintiff is correct that the ALJ erred in giving "significant" weight to the June 21, 2017 opinions rendered by the state agency psychological reviewer, Dr. Cottone, concerning plaintiff's mental impairments. "[M]edical source opinions that are . . . stale[ ] and based on an incomplete medical record may not be substantial evidence to support an ALJ finding." Cepeda v. Comm'r of Soc. Sec., 2020 WL 6895256, at *10 (S.D.N.Y. Nov. 24, 2020) (alterations in original) (quoting Camille v. Colvin, 104 F.Supp.3d 329, 343-44 (W.D.N.Y. 2015), aff'd, 652 Fed.Appx. 25 (2d Cir. 2016)). However, "[f]or a medical opinion to be stale, not only must there be a significant period of time between the date of the opinion and the hearing date, there also must be subsequent treatment notes 'indicat[ing] a claimant's condition has deteriorated' over that period." Ambrose-Lounsbury v. Saul, 2019 WL 3859011, at *3 (W.D.N.Y. Aug. 16, 2019) (quoting Whitehurst v. Berryhill, 2018 WL 3868721, at *4-5 (W.D.N.Y. Aug. 14, 2018)); see also Amrhein Deruchie v. Comm'r of Soc. Sec., 2019 WL 5208123, at *8 (W.D.N.Y. Oct. 16, 2019) (ALJ erred in relying on doctor's stale opinion where, after the opinion was rendered, plaintiff was "hospitalized multiple times for attempted suicide and Lamictal overdose"); Davis v. Berryhill, 2018 WL 1250019, at *3 (W.D.N.Y. Mar. 11, 2018) (2011 medical opinions were stale where "significant developments in Plaintiff's medical history had occurred since" the opinions were issued, including inpatient psychiatric treatment for seven days in 2012 following a voluntary mental health arrest, a second psychiatric emergency room visit in 2013, and consistently abnormal mental health examinations from 2012 forward).
In this case, Dr. Cottone's opinion was rendered almost two years prior to the ALJ's Decision. During those two years, plaintiff's mental health materially deteriorated, at least for a period of time. As Dr. Cottone noted in his opinion, plaintiff had a "past medical history of anxiety/depression" but had been managed, for the most part, on antidepressants, with no recent hospitalizations and little evidence of sustained psychotherapy. (R. 90-91.) Six months after he wrote that opinion, however, plaintiff began treatment at BPC for frequent panic attacks, anxiety, depression, and crying spells. (R. 982), was diagnosed with bipolar disorder (R. 1017), and was prescribed an antipsychotic (Risperdal) in addition to her antidepressants. (R. 1049.)
In May of that year, plaintiff's Risperdal dose was increased, causing her to feel "a little better" (R. 1059), and she began weekly psychotherapy sessions. (R. 1501.) However, from July 3 through September 6, 2019 - a total of more than two months - plaintiff was either a psychiatric inpatient at Montefiore or (R. 1067-1108) or enrolled in an intensive ("partial hospitalization") program at NCB. (R. 1387-1481.) During these months, plaintiff experienced suicidal ideation, was diagnosed with PTSD and borderline personality disorder (R. 1082), and was prescribed two new anti-psychotics (Abilify and Seroquel). (R. 1082, 1424, 1464.) Her highest GAF score during this period was 45, signifying "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job." DSM-IV, at 34, and after her second discharge from Montefiore she entered the shelter system, residing in a psychiatric women's shelter (R. 1482), where she remained through the date of the hearing. On January 22, 2019 (approximately one month prior to her hearing before the ALJ), plaintiff was assessed by LCSW Sands as "relatively stable psychiatrically," but in need of a "supportive housing environment." (R. 1486.)
Under the regulations governing claims filed before March 27, 2017, a licensed clinical social worker was not considered an "acceptable medical source" whose opinion the ALJ was formally required to weigh. See 20 C.F.R. § 404.1502(a)(7); D'Amato v. Comm'r of Soc. Sec., 2020 WL 759957, at *22 (S.D.N.Y. Jan. 30, 2020), report and recommendation adopted sub nom. D'Amato v. Comm'r of Soc. Sec. Admin., 2020 WL 757841 (S.D.N.Y. Feb. 14, 2020). However, an ALJ should "consider" opinions from medical sources other than "acceptable" medical sources, using the same factors prescribed for weighing opinions from acceptable medical sources, and "generally should explain the weight given to opinions from these sources or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case." 20 C.F.R. § 404.1527(f)(1)-(2); see also SSR 06-03p, 2006 WL 2329939, at *3 (Soc. Sec. Admin. Aug. 9, 2006) (directing ALJs to "use the same factors for the evaluation of the opinions of acceptable medical sources to evaluate the opinions of medical sources who are not acceptable medical sources, such as licensed social workers"). At a minimum, the ALJ should have considered whether LCSW Sands' January 2019 assessment, which included an in-person examination and incorporated plaintiff's recent mental health history, bore upon the weight that he assigned to Dr. Cottone's June 2017 opinion, which was based solely upon his review of the medical records available at that time.
In the Decision, the ALJ noted plaintiff's 2018 hospitalizations and related treatment, but downplayed their significance, writing that she "did not return to treatment after September 2018" and reasoning that her "limited treatment history suggests that this episode was an isolated acute exacerbation." (R. 24.) In fact, plaintiff did "return to treatment" after her second hospital discharge. (R. 1493-1502.) Even if the ALJ had accurately read the record, however, he was neither equipped nor entitled to render the medical opinion that plaintiff's back-to-back psychiatric hospitalizations in 2018 constituted "an isolated acute exacerbation." See Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (an 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") (internal citations omitted). "Put another way, 'ALJs may not, of course "play doctor" by using their own lay opinions to fill evidentiary gaps in the record.'" Russ v. Comm'r of Soc. Sec., 2022 WL 278657, at *9 (S.D.N.Y. Jan. 31, 2022) (quoting Manzella v. Comm'r of Soc. Sec., 2021 WL 5910648, at *14 (S.D.N.Y. Oct. 27, 2021), report and recommendation adopted, 2021 WL 5493186 (S.D.N.Y. Nov. 22, 2021)).
In Russ, the ALJ relied on the opinion of a non-examining state agency reviewer, Dr. Mohanty, who "could not have and did not review any of [plaintiff's] medical records" for the 13-month period between the review and the hearing. 2022 WL 278657, at *9. During that period, plaintiff "regularly saw her pain management treaters," whose records "suggest[ed] chronic pain in multiple parts of the body of a varying but generally high degree." Id. The ALJ concluded, on his own, "that none of those materials 'warrant a change in the pertinent findings of Dr. Mohanty.'" Id. However, as the court explained, since "the ALJ had no medical opinion before him to support that statement," he "impermissibly substituted his own medical opinion - exactly what he was not entitled to do," requiring remand. Id.; see also Manzella, 2021 WL 5910648, at *15 (remand was required where the only relevant medical opinion in the record was 18 months old and where the ALJ failed to "obtain an updated assessment" even after learning that the claimant had undergone surgery in the interim). Here, as in Russ, ALJ Burrichter made a compound error, improperly relying on a stale medical opinion as to plaintiff's mental RFC and then improperly using his own medical judgment to evaluate the post-opinion medical evidence in the record and dismiss the deterioration in plaintiff's mental health as "an isolated acute exacerbation." Consequently, remand is required.
D. The ALJ Failed to Develop the Record
The ALJ did not make the same mistake with respect to the June 23, 2017 opinion by state agency reviewer Dr. Trowbridge, who evaluated plaintiff's physical RFC based upon the record as of that date. As noted above, the ALJ gave only "partial" weight to Dr. Trowbridge's opinion, recognizing that plaintiff's later medical history required greater restrictions. (R. 25.) However, the fact that the record contains no medical opinion evidence from acceptable sources other than two stale opinions from non-examining agency reviewers demonstrates that the ALJ erred at the outset by failing adequately to develop the record.
"Whether 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) (explaining that "the Court cannot rule on whether the ALJ's decision regarding [plaintiff's] functional capacity was supported by substantial evidence if the determination was based on an incomplete record"). It is well-established in this Circuit that "the social security ALJ . . . 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). This obligation exists "even where, as here, the claimant is represented by counsel." Merriman v. Comm'r of Soc. Sec., 2015 WL 5472934, at *18 (S.D.N.Y. Sept. 17, 2015) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)), and is appropriately considered by the reviewing court even if the plaintiff does not raise the issue. See Prieto v. Comm'r of Soc. Sec., 2021 WL 3475625, at *10 (S.D.N.Y. Aug. 6, 2021) ("the Court must independently consider whether the ALJ failed to satisfy his duty to develop the record") (collecting cases). "The ALJ's duty is 'enhanced when the disability in question is a psychiatric impairment,' as is the case here." Pacheco v. Acting Comm'r of Soc. Sec., 2022 WL 702303, at *13 (S.D.N.Y. Mar. 9, 2022) (quoting Marinez v. Comm'r of Soc. Sec, 269 F.Supp.3d 207, 215 (S.D.N.Y. 2017)); accord Velez v. Colvin, 2017 WL 1831103, at *15 (S.D.N.Y. May 5, 2017); Hidalgo v. Colvin, 2014 WL 2884018, at *4 (S.D.N.Y, June 25, 2014).
In order to adequately develop the record, the ALJ must make "every reasonable effort" obtain medical opinions - not just medical records - from the claimant's treating physicians. 20 C.F.R § 404.1512(b)(1)(i); Prieto, 2021 WL 3475625 at *10 (collecting cases); Romero v. Comm'r of Soc. Sec., 2020 WL 3412936, at *13 (S.D.N.Y. June 22, 2020) (collecting cases); see also Annabi v. Berryhill, 2018 WL 1609271, at *17 (S.D.N.Y. Mar. 30, 2018) ("An ALJ's duty to develop the record includes seeking opinion evidence, usually in the form of medical source statements, from the claimant's treating physicians."); Dimitriadis v. Barnhart, 2004 WL 540493, at *9 (S.D.N.Y March 17, 2004) ("'raw data' or even complete medical records are insufficient by themselves to fulfill the ALJ's duty . . . It is the opinion of the treating physician that is to be sought[.]") (emphasis in original) (internal citation omitted). "In order to have made a 'reasonable effort,' the ALJ must 'make an initial request for evidence from [the claimant's] medical source or entity that maintains [the claimant's] medical source's evidence, and, at any time between 10 and 20 calendar days after the initial request, if the evidence has not been received, [the ALJ] will make one follow-up request to obtain the medical evidence necessary to make a determination." Pireto, 2021 WL 3475625, at *10 (quoting § 404.1512(b)(1)(i)).
There is no indication in the record of this action that any such requests were made to any of plaintiff's numerous treating physicians. "This alone is a sufficient basis to remand," Vargas v. Comm'r of Soc. Sec., 2022 WL 462392, at *6 (E.D.N.Y. Feb. 15, 2022), especially where, as here, plaintiff's claim was filed prior to March 27, 2017 and is governed by the treating physician rule, which requires the ALJ to give "controlling weight" to the opinions of her own physicians, if they are "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record." 20 C.F.R. § 404.1527(c)(2). In such cases, "[i]n addition to not satisfying the duty to develop the record, a failure to make reasonable efforts to obtain these opinions is a de facto violation of the treating physician rule, requiring remand." Vargas, 2022 WL 462392, at *6; see also Russ, 2022 WL 278657, at *8 (noting that in cases governed by the treating physician rule ALJs are required, "as part of their duty to develop the record," to "obtain an opinion from the claimant's treating physician, and courts "frequently remand[] cases where ALJs failed to do so"); McMahon v. Colvin, 2017 WL 8948743, at *35 (S.D.N.Y. Aug. 18, 2017) ("The fact that the ALJ made his disability determination without first obtaining treating source statements regarding Plaintiff's functional impairments warrants remand."), report and recommendation adopted, 2018 WL 1989560 (S.D.N.Y. Apr. 25, 2018); Vera v. Barnhart, 2007 WL 756577, at *10 (S.D.N.Y. March 13, 2007) (remanding because the "ALJ had a clear duty to seek an opinion from [the plaintiff's treating physician] regarding the existence, the nature, and the severity of the plaintiff's claimed disability" but did not).
Even where the treating physician rule applies, "the absence of a medical source statement from claimant's treating physician" is not always "fatal to the ALJ's determination." Swiantek v. Commissioner of Social Security, 588 Fed.Appx. 82, 84 (2d Cir. 2015). The court must consider whether, in the absence of any such opinion, the record nonetheless "contains sufficient evidence from which an ALJ can assess the petitioner's residual functional capacity." Tankisi v. Commissioner of Social Security, 521 Fed.Appx. 29, 34 (2d Cir. 2013). If a treating source opinion is unavailable, the ALJ can develop the record by alternative means, including by asking the claimant "to attend one or more consultative examinations at [the SSA's] expense." 20 C.F.R. § 404.1512(b)(2).
Here, however, the ALJ failed to obtain any opinion evidence from either treating or consultative examiners, leaving him with only the two stale opinions, discussed above, rendered by non-examining state agency reviewers almost two years prior to the hearing. Particularly given the complexity of this case - involving an interconnected set of physical and mental impairments, some of which were not even diagnosed until after the state agency reviewers rendered their opinions - I cannot conclude that the ALJ had sufficient medical opinion evidence before him to adequately assess plaintiff's residual functional capacity. Consequently, remand is also required because the ALJ failed adequately to develop the record. See Russ, 2022 WL 278657, at *10-11 (remanding for failure to develop the record where the ALJ failed to obtain any "functional assessment from [plaintiff's] treating pain-management professionals that takes into account the medical records post-dating the opinion of [non-examining reviewer] Dr. Mohanty"); Manzella, 2021 WL 5910648, at *15 (concluding that "the ALJ failed to adequately develop the record" where the "only medical source to provide an RFC assessment" was a stale opinion from a consultative examiner); Zayas v. Colvin, 2016 WL 1761959, at *4 (W.D.N.Y. May 2, 2016) (ALJ could not determine plaintiff's RFC without updated medical opinion evidence "because Zayas had several complicated and longstanding impairments including coronary artery disease, hypertension, diabetes, shoulder, knee, and ankle pain, and obesity"); Hooper v. Colvin, 199 F. Supp.3d 796, 815 (S.D.N.Y. 2016) (remanding where, "rather than obtain a consultative examination or seek comprehensive medical opinions from the treating physicians, the ALJ made Hooper's disability determination based on a record devoid of any truly complete medical opinion").
On remand, the ALJ should make reasonable efforts to obtain functional assessments from plaintiff's current treating sources, including her primary care physician, Dr. Yadegar, and her therapists at BPC. Failing that, the ALG should obtain opinions from consultative examiners and/or updated assessments from non-examining medical experts who are provided with her complete medical records.
E. Remaining Issues
Where, as here, the record has not been adequately developed, the Court cannot conclude that substantial evidence supports any of the ALJ's record-based determinations, including his step three analysis, his RFC formulation, and his ultimate decision as to disability. See Eltareb v. Berryhill, 2019 WL 636705, at *10 (S.D.N.Y. Jan. 28, 2019) ("Given the ALJ's failure adequately to develop the record, I cannot conclude that his credibility assessment, his RFC determination, or his ultimate finding of non-disability was supported by substantial evidence."), report and recommendation adopted, LGS), 2019 WL 632339 (S.D.N.Y. Feb. 13, 2019); Annabi, 2018 WL 1609271, at *21 ("since "the ALJ erred in failing to develop the record as to whether plaintiff can perform sedentary work," his "determination as to plaintiff's RFC was not supported by substantial evidence"). Thus, the specific challenges that plaintiff raises to the determinations that the ALJ made on the present record are largely moot. See Russ, 2022 WL 278657, at *10 ("declin[ing] to rule on the RFC issues at this juncture" because "the ALJ will need to reassess Ms. Russ's RFC in light of newly obtained evidence"); Manzella, 2021 WL 5910648 at *16 (declining to reach RFC determination because missing evidence, including opinions from claimant's treating physicians, was "integral to the ALJ's determination of the RFC"); Merriman v. Commissioner of Social Security, 2015 WL 5472934, at *24 (S.D.N.Y. Sept. 17, 2015) (court could not "meaningfully review the ALJ's RFC analysis . . . in light of the antecedent errors").
That said, plaintiff has correctly identified several independent errors committed at step three, discussed here so that they are not repeated on remand. First, in considering whether plaintiff's mental impairments meet or medically equal any relevant Listing, the ALJ did not discuss any of the medical evidence in the record. The only evidence he references when discussing the "paragraph B" criteria is plaintiff's hearing testimony concerning her ADLs. This is error because, in determining medical equivalence at step three, "the Commissioner must consider all relevant evidence in the case record, as well as 'the opinion given by one or more medical or psychological consultants designated by the Commissioner.'" 20 C.F.R. § 404.1526(c); accord Rivera v. Comm'r of the Soc. Sec. Admin., 2020 WL 8167136, at *18 (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); Marcano v. Berryhill, 2018 WL 5619749, at *12 (S.D.N.Y. July 13, 2018). "Some courts within our Circuit would remand on this basis alone." Rivera, 2020 WL 8167136, at *19; see also, e.g., Genua v. Comm'r of Soc. Sec., 2019 WL 5691827, at *5 (W.D.N.Y. Nov. 4, 2019) (remanding because "it is not apparent to the Court that the ALJ considered or relied upon the PC [psychological consultant] opinion in the step-three analysis"); Kudrick v. Comm'r of Soc. Sec., 2020 WL 2933234, at *5 (W.D.N.Y. June 3, 2020) ("[T]he ALJ failed to properly assess the medical expert's opinion at step three and her determination was not supported by substantial evidence.").
Second, the activities upon which the ALJ relies for his conclusion that plaintiff is only "moderately" limited in each of the four functional areas are themselves, as plaintiff notes, extremely limited: according to the ALJ, plaintiff was able to watch TV, go to the store twice a week, share a room with "some other women at a shelter," and use the Internet to check the weather and Facebook, and play "games such as Solitaire." (R. 19.) It is not obvious to this Court that any of these activities, singly or in combination, demonstrate that plaintiff is (for example) "generally able to learn, recall, or use information on an independent and sustained basis" and "capable of interacting independently, appropriately, effectively and on a sustained basis." (R. 19-20.) See Stacey v. Comm'r of Soc. Sec., 799 Fed.Appx. 7, 10 (2d Cir. 2020) (summary order) (noting that watching television is "a largely passive activity" which does not say "anything at all about a claimant's ability to concentrate on even simple work tasks," and that the claimant's "ability to interact with his spouse" says little about his ability to "interact with the public.")
Third, when discussing the "paragraph C" criteria for Listings 12.04. 12.06. and 12.15, the ALJ states that "the evidence fails to establish the presence of" those criteria (R. 20), but provides no hint as to the reasoning behind that conclusion. This too is error, because an ALJ is required to provide an explanation "as to why the claimant failed to meet or equal the Listings," particularly "'[w]here the claimant's symptoms as described by the medical evidence appear to match those described in the Listings.'" Rockwood, 614 F.Supp.2d at 273 (quoting Kuleszo v. Barnhart, 232 F.Supp.2d 44, 52 (W.D.N.Y. 2002)). Thus, remand may be warranted where "the ALJ offered no meaningful analysis in his decision whatsoever regarding the paragraph (C) criteria." Gomez v. Comm'r of Soc. Sec., 2017 WL 1194506, at *19 (S.D.N.Y. March 30, 2017). In Rivera v. Colvin, 2015 WL 1027163, at *13 (S.D.N.Y. Mar. 9, 2015), the ALJ's failure to set out his reasoning warranted "remand for further explanation" where "the facts . . . are not so clear as to render the ALJ's analysis of [one of the "paragraph C' criteria] unnecessary." Those facts included that plaintiff had spent 30 months "in a court-mandated residential mental health treatment facility and required "continued intensive psychological treatment" thereafter. Id.
Similarly, in Gonzalez v. Comm'r of Soc. Sec., 2017 WL 7310391, at *10 (S.D.N.Y. Dec. 21, 2017), report and recommendation adopted, 2018 WL 671261 (S.D.N.Y. Jan. 31, 2018), the ALJ approached the "paragraph C" criteria much as ALJ Burrichter did here: by "summarily dismiss[ing] the possibility that [plaintiff] satisfied any of the paragraph C criteria" without explaining why. But it was not obvious from the record that those criteria could not be met, given that the plaintiff "lived in supportive housing with a roommate, suffered from panic attacks, relied heavily on his brother and could not take public transportation by himself." Id. Consequently, the case was remanded because - while the evidence did not "conclusively demonstrate that Plaintiff satisfied [the] Paragraph C criteria" - it was "unclear from the face of the decision whether the ALJ even considered these matters." Id. at *11.
Here too, "the facts are not so clear," Rivera, 2015 WL 1027163, at *13, as to render unnecessary any discussion of the "paragraph C" criteria as applied to plaintiff, who spent two months in 2018 as a psychiatric inpatient, or enrolled in an intensive partial hospitalization program, after which she entered a psychiatric women's shelter where she was not expected to do perform any home management or housekeeping chores other than making her bed, which she did with "help." (R. 63.) The following year, plaintiff was assessed as "relatively stable psychiatrically" but "unable to maintain her own apartment," and in need of "a supportive housing environment which would facilitate, support, and promote her adherence with all scheduled appointments and medication adherence and thereby foster mental fitness." (R. 1486.) While this evidence does "not conclusively demonstrate" that plaintiff satisfied the "paragraph C" criteria for any of the relevant Listings, it is impossible to conclude from the present record that the ALJ conducted "a meaningful analysis." Gonzalez, 2017 WL 7310391, at *11. On remand, therefore, the ALJ should conduct "a more fulsome review of the Paragraph C criteria." Id.
VI. CONCLUSION
For the reasons stated above, I recommend, respectfully, that plaintiffs motion be GRANTED, that defendant's motion be DENIED, and that the case be REMANDED for further proceedings consistent with this Report and Recommendation. On remand, the ALJ should make every reasonable effort to obtain opinion evidence concerning plaintiffs physical and mental functioning from her treating sources, or failing that, from appropriate consultative examiners. Once the record is properly developed, the ALJ should reassess whether plaintiffs impairments meet or medically equal the severity of one of the listed impairments, and in so doing (with respect to plaintiffs mental impairments) should provide a reasoned analysis of both the "paragraph B" and the "paragraph C" criteria tied to specific evidence in the record. Additionally, the ALJ should reformulate plaintiffs RFC, taking into account not only her separate impairments but also their combined effect.