Opinion
Civil Action 20 Civ. 7087 (GBD) (SLC)
12-10-2021
RAFAEL RUA-CAMPUSANO, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
Plaintiff Rafael Rua-Campusano (“Mr. Rua-Campusano”) commenced this action pursuant to Section 205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. § 405(g). Mr. Rua-Campusano seeks review of the decision by the Commissioner (the “Commissioner”) of the Social Security Administration (“SSA”), denying his application for Supplemental Security Income (“SSI”) under the Act. Mr. Rua-Campusano contends that the decision of the Administrative Law Judge (“ALJ”) dated April 9, 2019 (the “ALJ Decision”) was erroneous, not supported by substantial evidence, and contrary to law, and asks the Court to (a) reverse the Commissioner's finding that he was not disabled and remand to the Commissioner for an award of SSI benefits, or (b) remand for a new hearing.
The parties have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). On May 27, 2021, Mr. Rua-Campusano filed a motion for judgment on the pleadings (ECF No. 14 (“Mr. Rua-Campusano's Motion”), on August 2, 2021, the Commissioner cross-moved (ECF No. 20 (the “Commissioner's Motion”)), and on August 23, 2021, Mr. Rua-Campusano filed a reply memorandum of law in further support of his Motion. (ECF No. 22). On November 10, 2021, the Court issued a Report and Recommendation recommending that Mr. Rua-Campusano's Motion be GRANTED and the Commissioner's Motion be DENIED. (ECF No. 23 (the “First R&R”)). On December 8, 2021, the Commissioner filed objections to the First R&R (ECF No. 26 (the “Objections”)), which the Court construed as a motion for reconsideration, granted, and withdrew and vacated the First R&R. (ECF No. 27). After consideration of the Objections, the Court now issues this revised Report and Recommendation, and respectfully recommends that Mr. Rua-Campusano's Motion be GRANTED and the Commissioner's Motion be DENIED.
II. BACKGROUND
A. Procedural Background
On July 21, 2017, Mr. Rua-Campusano filed an application for SSI, alleging a disability onset date of July 1, 2017 based on anxiety and affective disorder. (Administrative Record (“R.”) 232-40 (ECF Nos. 11 - 11-1)). On October 25, 2017, the SSA denied Mr. Rua-Campusano's application (R. 154-59). After Mr. Rua-Campusano requested a hearing before an ALJ, on March 4, 2019, ALJ Paul R. Armstrong conducted a hearing by video and teleconference from Chicago, Illinois (the “Hearing”). (R. 160-62, 96-129). On April 9, 2019, ALJ Armstrong issued the Decision finding that Mr. Rua-Campusano was not disabled under the Act. (R. 69-77). The ALJ Decision became the final decision of the Commissioner when the Appeals Council denied review. (R. 1-7).
B. Factual Background
1. Non-medical evidence
Mr. Rua-Campusano was born in 1984 and was 32 years old on the alleged onset date, July 1, 2017. (R. 232). He lived with his mother in an apartment in the Bronx, New York. (R. 233). He did not finish high school but did receive his GED and completed one semester of college at Bronx Community College. (R. 104, 108). He last worked at the age of 19 or 20 in a warehouse moving boxes, although he left this job after “[j]ust a couple of months” as a result of his anxiety and depression. (R. 103).
In a function report dated July 31, 2017 (the “Function Report”), Mr. Rua-Campusano stated that, during the day, he eats, showers, sits on the couch, uses the Internet, and then goes back to bed and sleeps “most of the day.” (R. 257). His mother prepares most of his meals, as she did before the onset of his conditions. (R. 258). He does not do chores around the house because he gets “tired and out of breath due to [his] weight. (R. 259). The only time he leaves the house is to go to a doctor's appointment, approximately once every two months. (R. 259- 60). He does not shop or drive, although he has a driver's license. (R. 259). Mr. Rua-Campusano “avoid[s] contact [and] conversation with friends, neighbors and some family members.” (R. 261). He has “no strength or energy to do lifting, ” cannot stand, walk, kneel, climb stairs, or kneel for a long time. (Id.) He can walk a block before he needs to stop to rest. (R. 262). He can follow spoken and written instructions, does not have any problems getting along with people in authority, and does not have trouble remembering. (R. 263). He needs to know changes in schedule “in advance to avoid stress or anxiety.” (Id.)
In a questionnaire about his anxiety dated July 31, 2017 (the “Questionnaire”), Mr. Rua-Campusano stated that his anxiety began at the age of 17 when he was in high school and worsened over time. (R. 284). “[A]lmost anything” can trigger a panic attack, for example, being in a crowd or having people around him. (Id.) During a panic attack, he experiences a rapid heartrate, an adrenaline rush, fear, sweaty hands, shortness of breath, and a stiff neck. (Id.) To relieve an attack, he isolates himself. (Id.) His mood fluctuates during the day and he depends on his medication to function. (R. 285).
In a third-party function report dated August 28, 2017 (the “Third Party Function Report”), his sister, Fausta Campusano, stated that Mr. Rua-Campusano “cannot be around people” and “gets panic[] attack[s] and [has a] high level of stress.” (R. 294). She stated that he became overweight due to inactivity and medication side effects. (Id.) Ms. Campusano stated that Mr. Rua-Campusano “needs to be on medication at all time[s] and when he is medicated[, ] he only sleeps and eat[s].” (Id.) She stated that he was “not able to work, go to school[, ] or be around people, ” but “is always secluded in his room.” (Id.) Ms. Campusano stated that, before his conditions, he used to work, socialize, go to school, have friends, participate in sports, have a girlfriend, and go out of the house, but he no longer does those things. (R. 295, 297- 99). She attested that he had no problems with personal care. (R. 295). She stated that he does not do house or yard work due to shortness of breath, only goes outside to go to doctors' appointments, and does not handle money or pay bills. (R. 297). Ms. Campusano stated that he could only walk a few minutes, could pay attention for ten to fifteen minutes, was able to follow instructions, got along well with authority figures, was “not interested, willing or able to work, ” and could only handle stressful situations with medication or by avoiding them. (R. 299-300). She concluded:
It is a difficult situation, he must be on medication all the time and when he is medicated he sleeps too much. My mother has to feed him because he does not care for cooking or is [un]able to do it. He [has] been in this situation for years now and we are not sure [] how to make it better or help him to be better without taking medication.(R. 301).
2. Medical evidence
Mr. Rua-Campusano alleges that he is disabled based on his anxiety and depressive disorders, with an onset date of July 1, 2017. (ECF No. 11 at 247, 253; see ECF No. 15 at 2). The Court summarizes the medical information in the Record concerning these conditions, pre- and post-onset date.
a. Montefiore Medical Center - Treating Physicians
The Record contains treatment records from Montefiore Medical Center (“Montefiore”)that predate the onset date. Since at least December 9, 2015, Hector Coll-Ruiz, M.D. and his colleagues at Montefiore treated Mr. Rua-Campusano for his psychiatric symptoms. (R. 336-41). On that date, Mr. Rua-Campusano reported that he was “feeling ‘great'” and “‘loving life.'” (R. 339). He had gained weight, and while he had stopped dieting and going to the gym, he was “planning on going back to it.” (Id.) The treatment records from this visit describe “fair stability of psychiatric symptoms with positive results, ” a “‘good'” mood, sleep as “not good, ” and weight gain. (R. 336). Mr. Rua-Campusano stated during this visit that “the medication makes me happy so I don't mind [gaining] weight.” (Id.) Dr. Coll-Ruiz continued his medication, Sertraline (“Zoloft”) at 200 milligrams per day. (R. 341). During a February 9, 2016 visit, Mr. Rua-Campusano reported “feeling ‘great, '” and having lost about 15 pounds due to dieting. (R. 342). He noted that the “[m]eds are helpful.” (Id.) At an April 4, 2016 appointment, Mr. Rua- Campusano reported “feeling fine” and that his medications were “helpful, ” without side effects. (R. 347). In June 10, 2016 and August 8, 2016 visits, Mr. Rua-Campusano stated that his medications were working and that he was “stable.” (R. 350, 353). On October 5, 2016, he told Dr. Coll-Ruiz that he was “feeling great, ” “love[d] being around people, ” and his medications were “helpful.” (R. 356). During each of these visits, his mental status examinations were unremarkable and his medications were continued without change. (R. 337, 340, 343, 352, 356, 358).
On December 1, 2016, Mr. Rua-Campusano reported having “ups and downs” and getting “upset” with his mother, but noted that he had been “feeling good for a couple of weeks.” (R. 363). His mental status examination was still unremarkable and his medication was continued. (R. 364-65). On December 6, 2016, Mr. Rua-Campusano described himself as doing “OK, ” and reported that he had been talking and playing games with family members who visited him and had “[n]o symptoms of depression at this time.” (R. 365-66). On February 2, 2017, he described “feeling good, a little nervous, ” and observed “trembling” in his hand. (R. 369). His mental status examinations during each of these visits were also unremarkable. (R. 364, 367, 370).
On April 7, 2017, Mr. Rua-Campusano attended a therapy session. (R. 372). He stated that he typically did not attend therapy because he did not need or desire to speak to anyone other than his psychiatrist nor did he have any “concerns.” (Id.) He described having difficulty working on his weight loss and being “suspicious regarding the need for medication and his diagnosis.” (Id.) The same day, he told Carmencita Concepcion Vicencio, M.D., that he was “no longer feeling depressed, ” had a tremor in both hands that started with the medication, and never had suicidal ideation, but still needed his medication. (R. 375). Dr. Concepcion Vicencio described him as “better” and encouraged him to see his primary care provider for a referral to a neurologist for the tremors. (R. 377). Mental status examinations throughout this time were unremarkable. (R. 373-74, 376-77, 380, 383).
On August 4, 2017, Mr. Rua-Campusano reported “occasional anxiety” for which he calmed himself by “sleeping or sitting quietly.” (R. 384). He denied “suicidal and homicidal thoughts as well as hallucinations and paranoia, ” and his appetite and sleep were both “good.” (Id.) On October 6, 2017, he stated that he was “feeling good” and “denie[d] feeling depressed, ” although he noted that he had felt depressed in the last two weeks. (R. 387-88). He did state that he felt anxious, “that people [were] talking about him” and “judging him, ” which was a “stronger” feeling now. (R. 388). Dr. Coll-Ruiz added a prescription for aripiprazole (“Ablify”). (R. 390). On December 4, 2017, Mr. Rua-Campusano described a “depressed mood, difficulty concentrating, fatigue, hopelessness and insomnia, ” although he felt that the Ablify medication was “helping him feel motivated to do things” and noted that he had spent “Thanksgiving with family and had a nice time.” (R. 391, 394). On December 8, 2017, Mr. Rua-Campusano told Dr. Coll-Ruiz that he was “feeling a little better with Ablify, ” that is, “more focused, ” although he still felt “anxious.” (R. 397). At Mr. Rua-Campusano's request, Dr. Coll-Ruiz increased his Ablify prescription from five milligrams to ten milligrams. (R. 400). Mental status examinations during this period continued to be unremarkable, with ratings fair or greater. (R. 386, 389-90, 392-93, 396, 399).
On January 8, 2018, Mr. Rua-Campusano reported moderate difficulty concentrating, insomnia, irritability, shortness of breath, and sweating, but felt that his current medication was “helping him feel more motivated.” (R. 401). He stated his intent to join a gym and find employment, although his family was encouraging him to apply for benefits. (Id.) On January 30, 2018, he reported a “significant decrease of depressive anxiety” as a result of his medication, and again expressed a desire to find employment, such as driving a school bus. (R. 404, 406). On February 5, 2018, he told Dr. Coll-Ruiz that he was feeling good, although he noticed some dizziness when he stood up, and still worried that other people were talking about him, although it did not “bother him as much.” (R. 407). On March 20, 2018, he wanted to ask to decrease his Zoloft prescription because it was “making him sleepy at all times.” (R. 410). Mental status examinations during this period continued to be unremarkable, with ratings fair or greater. (R. 402, 405, 408-09).
On April 5, 2018, Mr. Rua-Campusano told Dr. Coll-Ruiz that he felt “okay, emotionally” and while his Abilfy medication was “helpful, ” it “was making him sleepy.” (R. 432). His mental status examination was unremarkable, and Dr. Coll-Ruiz discontinued his Ablify and decreased the Zoloft dosage to 150 milligrams. (R. 434-35). On May 3, 2018, Mr. Rua-Campusano's status was “fairly stable, ” and Dr. Coll-Ruiz further reduced his Zoloft dosage to 100 milligrams. (R. 436- 39). On July 5, 2018 and September 5, 2018, Dr. Coll-Ruiz described Mr. Rua-Campusano as “fairly stable” and kept his medications unchanged. (R. 442, 446).
On November 14, 2018, Mr. Rua-Campusano told a mental health counselor at Montefiore that he had “not seen his therapist in some time, ” and that his “depression has increased since his Zoloft dose was lowered, ” but he was “alert, coherent and [] cooperative” and not a danger to himself or others. (R. 448, 452). Seen by Dr. Concepcion Vicencio the same day, his mental status examination was unremarkable, and he underwent supportive psychotherapy. (R. 453-56). On February 13, 2019, Mr. Rua-Campusano told Dr. Coll-Ruiz that he was “feeling down” and “depressed for months, ” was sleeping multiple times during the day, and had “passive wishes of dying” and anxiety. (R. 458). His mental status exam showed marked decline since mid-2018: his head was covered by a hooded sweatshirt, and he was tearful, depressed, and had fair to poor attention and concentration. (R. 460-61). Dr. Coll-Ruiz decreased and then discontinued his Zoloft, and started him on Citalopram (Celexa). (R. 461). On his next visit two weeks later, Mr. Rua-Campusano reported “feeling better” and his mental status exam had improved, although he still felt “depressed.” (R. 463, 466). On March 28, 2019, Mr. Rua-Campusano described “not feeling the best;” as his anxiety and anger were “up, ” he was “sleeping all day, ” and “feeling not happy.” (R. 12). At this time, Dr. Coll-Ruiz increased his Celexa dosage to 30 milligrams per day. (R. 15). A mental status examination was unremarkable except for judgment, which Dr. Coll-Ruiz rated at “fair to poor, ” and Dr. Coll-Ruiz deemed Mr. Rua-Campusano to be “not stable.” (Id.)
Dr. Coll-Ruiz completed a medical source statement concerning Mr. Rua-Campusano's ability to do work-related activities dated April 5, 2018 (the “Medical Source Statement”). (R. 332-34). Dr. Coll-Ruiz stated that, due to depressive and psychotic symptoms, Mr. Rua-Campusano had mild restrictions in his ability to understand, remember, and carry out simple instructions, and marked restrictions in his ability to understand, remember, and carry out complex instructions, and his ability to make judgments about both simple and complex work-related decisions. (R. 332, 415). Dr. Coll-Ruiz opined that Mr. Rua-Campusano had a moderate restriction in his ability to interact appropriately with the public, and marked restrictions in his ability to interact appropriately with supervisors and co-workers and respond appropriately to usual work situations and changes in a routine work setting. (R. 333, 416). He also found a mild restriction in Mr. Rua-Campusano's ability to concentrate and a marked restriction in his ability to persist and maintain pace, and to adapt and manage himself. (Id.)
Dr. Coll-Ruiz also completed a Psychiatric/Psychological Impairment Questionnaire dated March 28, 2019 (the “PPIQ”). (R. 84-88). Dr. Coll-Ruiz described Mr. Rua-Campusano's conditions as (1) major depressive disorder, recurrent episode, moderate, and (2) other specific anxiety disorder with a history of other psychotic disorder not due to substance or known physiological condition. (R. 84). He described Mr. Rua-Campusano as having the following symptoms: depressed mood, past suicidal ideation, difficulty thinking or concentrating, past paranoia and vigilance, anhedonia (pervasive loss of interests), decreased energy, deeply ingrained, maladaptive patterns of behavior, psychomotor retardation, slowed speech, and social withdrawal, the most frequent or severe manifestations of which were his “passive wishes of dying.” (R. 85-86). Dr. Coll-Ruiz noted that Mr. Rua-Campusano's psychiatric conditions did not exacerbate pain or other physical symptoms, and that he did not have reduced intellectual functioning. (R. 86). Rating his ability to perform mental activities, Dr. Coll-Ruiz assessed him as having moderate-to-marked limitations in understanding and carrying out simple instructions, and in asking simple questions or requesting assistance, and as having a marked limitation in all other mental activities. (R. 87). Dr. Coll-Ruiz anticipated that Mr. Rua-Campusano would be absent from work more than three times per month as a result of his conditions, and concluded that his findings in the PPIQ were “reasonably consistent with [Mr. Rua-Campusano's] symptoms and functional limitations.” (R. 88).
The mental activities with marked limitation were: remembering locations and work-like procedures, understanding, remembering, and carrying out detailed instructions, maintaining attention and concentration for extended periods, performing activities within a schedule and consistently being punctual, sustaining an ordinary routine without supervision, working in coordination with others without being distracted, making simple work-related decisions, completing a workday without interruption from his psychological symptoms, performing at a consistent pace without unreasonably long or frequent rest, accepting instructions and responding appropriately to criticism from supervisors, getting along with coworkers without distracting them, maintaining socially appropriate behavior, adhering to basic standards of neatness, responding appropriately to workplace changes, being aware of hazards and taking appropriate precautions, traveling to unfamiliar places or using public transportation, setting realistic goals, and making plans independently. (R. 87).
b. Elizabeth Kronk, Psy. D. - SSA Consultative Examiner
On October 9, 2017, Carol McLean Long, M.D., conducted a consultative internal medicine examination of Mr. Rua-Campusano, and found mild limitations in walking and in flexing the lumbar spine, knees, and hips. (R. 325-31). Neither party disputes the ALJ's conclusion that Dr. Long's opinion was contradicted by both testing that showed full strength and normal walking, and by the limited medical treatment of any physical impairments in the record. (R. 72).
On August 3, 2017, Elizabeth Kronk, Psy. D., examined Mr. Rua-Campusano at the request of the SSA. (R. 319-23). Mr. Rua-Campusano related that he had been receiving bi-monthly outpatient mental health treatment at Montefiore for the past three years. (R. 319). He told Dr. Kronk that he “rarely” saw his therapist because “he has difficulty leaving his house and just wants the medication, ” which, at that time, was Zoloft. (Id.) He described his psychiatric symptoms as: difficulty falling and staying asleep, “extreme anxiety on a daily basis[, ]” “frequent[] nervous[ness], ” and “extreme difficulty leaving his house” because he did “not want to be seen in public” and did “not want interactions with other people due to anxiety and nervousness.” (Id.) He told Dr. Kronk that he had attended Bronx Community College but was unable to continue due to his psychiatric problems, although he denied “any suicidal and homicidal ideation and thought disorder symptoms.” (R. 320). Mr. Rua-Campusano stated that he felt scared all the time, and had regular panic attacks in which he had an irregular heartbeat and felt like he was “locked in a room.” (Id.)
Dr. Kronk observed that Mr. Rua-Campusano was “cooperative” in the evaluation, but his “manner of relating was poor, ” as he sat with his hood shielding his face and “was extremely withdrawn.” (R. 320). He was “fairly groomed, ” exhibited “coherent and goal directed” thought processes without hallucinations, and showed average intellectual functioning, but made poor eye contact, exhibited a “dysphoric and anxious” affect, an “anxious” mood, and showed impaired attention and concentration, and poor insight and judgment. (R. 320-21). Dr. Kronk noted that he was able to perform daily dressing, bathing, and grooming, but his mother performed all household tasks; he no longer drove, he did not take public transportation due to anxiety, and he spent his days on the computer or sleeping. (R. 321-22).
In her medical source statement, Dr. Kronk opined that Mr. Rua-Campusano's difficulties were caused by his psychiatric conditions, that is, generalized anxiety disorder and panic disorder. (R. 322). She determined that his psychiatric conditions “may significantly interfere with [Mr. Rua-Campusano's] ability to function on a daily basis.” (Id.)
Dr. Kronk found no limitations in Mr. Rua-Campusano's abilities to: understand, remember, or apply simple instructions, maintain personal hygiene and appropriate attire, or be aware of normal hazards and take appropriate precautions. (R. 322). She found mild limitations in his ability to use reason and judgment to make work-related decisions. (Id.) She found moderate limitations in his abilities to: understand, remember, or apply complex directions and instructions; and sustain concentration and perform tasks at a consistent pace. (Id.) She found marked limitation in his abilities to: interact adequately with supervisors, co-workers, and the public, sustain an ordinary routine and regular work attendance, and regulate his emotions, control his behavior, and maintain his well-being. (Id.) Dr. Kronk recommended that he continue psychiatric treatment and undergo individual therapy on a consistent basis for one year, and gave him a “fair” prognosis. (R. 322-23).
c. M. Juriga, Ph.D. - State Agency Examiner
On September 14, 2017, M. Juriga, Ph.D., assessed the records of Mr. Rua-Campusano's mental Residual Functional Capacity (“RFC”). (R. 140-50). Dr. Juriga reviewed Mr. Rua-Campusano's treatment records from Montefiore, and the medical source statements from Drs. Kronk and Long. (R. 142-44). Applying the “B Criteria” of Listings 12.04 and 12.06, Dr. Juriga assessed that Mr. Rua-Campusano had a mild limitation in the ability to understand, remember or apply information, and moderate limitations in his abilities to interact with others, concentrate, persist, or maintain pace, and adapt or manage himself. (R. 145). Dr. Juriga found that the “C Criteria” for Listings 12.04 and 12.06 were not present. (Id.) After summarizing Dr. Kronk's August 3, 2017 consultative examination, Dr. Juriga concluded that Mr. Rua-Campusano “retained the ability to perform unskilled work in a low contact setting, ” and was not disabled. (R. 150, 152).
State agency examiners examine the record, not the claimant, and determine whether the claimant is disabled based on a review of the file, including any available medical opinions. See Rivera v. Comm'r of Soc. Sec. Admin., No. 19 Civ. 4630 (LJL) (BCM), 2020 WL 8167136, at *4 n.7 (S.D.N.Y. Dec. 30, 2020), adopted by, 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021).
See generally DiStefano v. Berryhill, 363 F.Supp.3d 453, 465-66 (S.D.N.Y. 2019) (providing overview of requirements of “B” and “C” Criteria for Listings 12.04 and 12.06).
d. James Ellis, Ph.D. - Retained Examining Psychologist
On February 11, 2019, James Ellis, Ph.D., examined Mr. Rua-Campusano at his attorney's request. (R. 421). Mr. Rua-Campusano reported periods of “severely depressed mood, anhedonia, hypersomnia, avolition, hyperphagia, and feelings of hopelessness since he was a child.” (Id.) He described spending “most of the day sleeping, ” but denied any symptoms consistent with psychosis, manic, or hypomanic episodes, generalized anxiety, or panic disorder. (R. 421-22). Mr. Rua-Campusano reported “significant interpersonal trauma history throughout childhood, including bullying and abuse in elementary school as well as emotional abuse by a sibling, ” which he relives in nightmares, fear and avoidance of others, physiological hyperarousal, tension and angry outbursts. (R. 422).
In his mental status exam, Dr. Ellis described Mr. Rua-Campusano as: making poor eye contact; oriented to person, place and time; speaking at a normal rate at low volume; displaying a depressed mood and affect; average intelligence; and insight and judgment, and attention and concentration. (R. 423). Mr. Rua-Campusano denied having any suicidal or homicidal ideation. (Id.)
Dr. Ellis's diagnostic impressions were that Mr. Rua-Campusano had major depressive disorder, recurrent without psychotic features, chronic post-traumatic stress disorder, and relational problem related to a mental disorder. (R. 423; see R. 426-27).
C. Administrative Proceedings
1. The Hearing a. Mr. Rua-Campusano's testimony
Mr. Rua-Campusano testified at the Hearing that he had last worked when he was 19 or 20 years old, moving boxes at a warehouse, but left the position after a couple of months due to anxiety and depression. (R. 103). He dropped out after a semester of college due to “Parkinsonlike symptoms” from one of the psychotic medications he was taking. (R. 104-05). Although he and his doctor made changes with his medications, he “basically crashed, ” and his depression, anxiety, and irritability worsened. (R. 106). He testified that his depression and anxiety had been a problem since high school. (R. 106-07). His anxiety made him “hate being around people, ” and as a result of his depression, he sleeps most of the time. (R. 107-08). Although he has a therapist, he has not discussed with her the topic of joining a group because he cannot “really be around people.” (R. 114). Instead, he has worked with his doctor on finding “a good combination of medications so [he] can be normal.” (Id.; see R. 124-25).
b. Vocational expert testimony
ALJ Armstrong posed several hypotheticals to vocational expert (“VE”) Connie O'Brien-Heckler. (R. 121). First, ALJ Armstrong posed “a hypothetical individual without any past relevant work, limited to jobs that do not require public contact and no more than occasional contact with supervisors and []employees.” (Id.) The VE testified that this individual would be capable of working at a medium exertion level as a floor waxer, at a light exertion level as a janitor, and at a sedentary level as an inspector. (R. 121-22).
In response to the ALJ's variations on the first hypothetical, the VE also testified that no jobs would be available for an individual who was “off task for in excess of 15 percent of the day, ” or who, for only one third of the work day “would be able to understand, remember, and carry out one- to two-step instructions, ” “perform activities within a schedule and consistently be punctual, ” or “sustain ordinary routine [tasks] without supervision or be able to complete work tasks without interruptions from psychological symptoms.” (R. 125-26).
At the conclusion of the Hearing, the ALJ granted Mr. Rua-Campusano two weeks to submit additional treatment records from Montefiore. (R. 128-29). The Record before the Court includes records assembled on May 21, 2020 documenting Dr. Coll-Ruiz's treatment notes for the period March 2019 to March 2020 (the “Supplemental Montefiore Records”), which the Court infers the ALJ did not have at the time of his Decision. (R. 12-55).
2. The ALJ Decision and Appeals Council Review
On April 9, 2019, ALJ Armstrong issued his Decision finding Mr. Rua-Campusano not disabled and denying his application for SSI benefits. (R. 69-77). ALJ Armstrong followed the five-step disability determination process. 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, ALJ Armstrong determined that Mr. Rua-Campusano had not engaged in substantial gainful employment since the onset date, and at step two, that his affective disorder and anxiety were severe impairments within the meaning of 20 C.F.R. § 416.920(c). (R. 71).
At step three, however, ALJ Armstrong determined that neither of Mr. Rua-Campusano's impairments were of a severity to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, 20 C.F.R. §§ 416.920(d), 416.925, 416.926 (the “Listings”). (R. 72). In reaching that conclusion, the ALJ considered listings 12.04 (affective disorders) and 12.06 (anxiety disorders), and found that the “paragraph B” and “paragraph C” criteria were not met. (R. 72-73).
Before moving to step four, the ALJ addressed Mr. Rua-Campusano's RFC, and found that he had the RFC “to perform a full range of work at all exertional levels but [he could] have no more than occasional contact with supervisors, co-employees, and the general public.” (R. 73 (“Mr. Rua-Campusano's RFC”)). In determining Mr. Rua-Campusano's RFC, the ALJ considered all of his symptoms “and the extent to which they can be reasonably accepted as consistent with the objective medical evidence and other evidence, ” and “the medical opinion(s) and prior administrative medical finding(s)” in accordance with SSA regulations. (Id.) The ALJ found that the opinions of Drs. Kronk, Coll-Ruiz, and Ellis were contradicted by the mental status examinations between February 2016 and May 2018 “that showed a good, great, or euthymic mood, a cooperative attitude and appropriate behavior.” (R. 74-75).
At step four, the ALJ found that Mr. Rua-Campusano had no past relevant work, and at step five, determined that based on his age, education, work experience, and RFC, that jobs exist in significant No. in the national economy that he could perform, that is, floor waxer, janitor, and inspector. (R. 75-76). For these reasons, the ALJ concluded that Mr. Rua-Campusano was not disabled. (R. 77).
On June 29, 2020, the Appeals Council denied Mr. Rua-Campusano's request for review of the ALJ Decision. (R. 1-7).
III. LEGAL STANDARDS
A. Standard of Review
Under Rule 12(c), a party is entitled to judgment on the pleadings if he establishes that no material facts are in dispute and that he is entitled to judgment as a matter of law. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999); Morcelo v. Barnhart, No. 01 Civ. 743 (RCC) (FM), 2003 WL 470541, at *4 (S.D.N.Y. Jan. 21, 2003).
The Act provides that the Commissioner's findings “as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). A court may set aside the Commissioner's decision denying SSI benefits if it is not supported by substantial evidence or was based on legal error. See Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). Judicial review, therefore, involves two levels of inquiry. First, the Court must decide whether the ALJ applied the correct legal standard. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, No. 05 Civ. 4254 (SCR) (MDF), 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). Second, the Court must decide whether the ALJ's decision was supported by substantial evidence. Id. “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, No. 07 Civ. 5952 (LAP), 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). 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.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal citations omitted). The substantial evidence test applies not only to the factual findings, but also to the inferences and conclusions drawn from those facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y. 1999). In determining whether the administrative record contains evidence to support the denial of claims, the Court must consider the whole record, and weigh all evidence to ensure that the ALJ evaluated the claim fairly. See, e.g., Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999). The Commissioner, not the Court, resolves evidentiary conflicts and appraises the credibility of witnesses, including the claimant. See, e.g., Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
Disability-benefits proceedings are non-adversarial in nature, and therefore, the ALJ has an affirmative obligation to develop a complete administrative record, even when the claimant is represented by counsel. See Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009). To this end, the ALJ must make “every reasonable effort” to help an applicant get medical reports from her medical sources. 20 C.F.R. § 416.912(b). Ultimately, “[t]he record as a whole must be complete and detailed enough to allow the ALJ to determine the claimant's residual functional capacity.” Casino-Ortiz v. Astrue, No. 06 Civ. 155 (DAB) (JCF), 2007 WL 2745704, at *7 (S.D.N.Y. Sept. 21, 2007). When there are inconsistencies, gaps, or ambiguities in the record, the regulations give the ALJ options to collect evidence to resolve these issues, including re-contacting the treating physician, requesting additional records, arranging for a consultative examination, or seeking information from others. 20 C.F.R. § 416.920b.
The Act authorizes a court, when reviewing decisions of the SSA, to order further proceedings: “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see Butts v. Barnhart, 388 F.3d 377, 382 (2d Cir. 2004). If “there are gaps in the administrative record or the ALJ has applied an improper legal standard, ” the Court will remand the case for further development of the evidence or for more specific findings. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)). Remand is particularly appropriate where further findings or explanation will clarify the rationale for the ALJ's decision. Pratts, 94 F.3d at 39. If, however, the reviewing court concludes that an ALJ's determination to deny benefits was not supported by substantial evidence, a remand solely for calculation of benefits may be appropriate. See, e.g., Butts, 388 F.3d at 386 (discussing Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000)).
B. Eligibility for Benefits
For purposes of SSI benefits, one is “disabled” within the meaning of the Act, and thus entitled to such benefits, when he or 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. § 1382c(3)(A). The Act also requires that the impairment be “of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 1382c(3)(B). In reviewing a claim of disability, the Commissioner must consider: “(1) objective medical facts; (2) diagnoses or medical opinions based on those facts; (3) subjective evidence of pain and disability testified to by claimant and other witnesses; and (4) the claimant's background, age, and experience.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988).
Under the applicable regulations, an alleged disability is evaluated under the sequential five-step process set forth in 20 C.F.R. § 416.920(a)(4)(i)-(v). The Second Circuit has described the process as follows:
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on the medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the Claimant could perform.Bush v. Shalala, 94 F.3d 40, 44-45 (2d Cir. 1996) (quoting Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983)).
At the first four steps, the claimant bears the burden of proof. At the fifth step, the burden shifts to the Commissioner to demonstrate that there are jobs in the national economy that the claimant can perform. See, e.g., Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). In meeting the burden of proof at the fifth step, the Commissioner can usually rely on the Medical-Vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, known as “the Grid.” Zorilla v. Chater, 915 F.Supp. 662, 666-67 (S.D.N.Y. 1996).
C. Evaluation of Medical Opinion Evidence
For benefits applications filed before March 27, 2017, the SSA's regulations required an ALJ to give more weight to those physicians with the most significant relationship with the claimant. See 20 C.F.R. § 416.927; see also Taylor v. Barnhart, 117 Fed.Appx. 139, 140 (2d Cir. 2004). Under this “Treating Physician Rule, ” an ALJ was required to “give good reasons” Kevin E. v. Comm'r of Soc. Sec., No. 1: 19-CV-593 (EAW), 2021 WL 1100362, at *4 (W.D.N.Y. Mar. 23, 2021) (quoting former 20 C.F.R. § 404.1527(c)(2)), if he or she determined that a treating physician's opinion was not entitled to “controlling weight, ” or, at least, “greater weight” than the opinions of non-treating and non-examining sources. Gonzalez v. Apfel, 113 F.Supp.2d 580, 588-89 (S.D.N.Y. 2000). In addition, under the Treating Physician Rule, a consultative physician's opinion was generally entitled to “little weight.” Giddings v. Astrue, 333 Fed.Appx. 649, 652 (2d Cir. 2009).
On January 18, 2017, the SSA published comprehensive revisions to the regulations regarding the evaluation of medical evidence, revisions that were applicable to applications filed on or after March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 F. R. 5844-01, 2017 WL 168819 (Jan. 18, 2017). These new regulations reflect a departure from a perceived hierarchy of medical sources. See Id. The regulations now provide that an ALJ need “not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources.” 20 C.F.R. § 416.920c(a). See Young, 2021 WL 4148733, at *9. Instead, an ALJ must consider all medical opinions in the record and “evaluate the persuasiveness” based on five “factors”: (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) any “other” factor that “tend[s] to support or contradict a medical opinion.” 20 C.F.R. § 416.920c(a)-(c)(1)-(5).
The new regulations define “prior administrative medical finding” as:
[A] finding, other than the ultimate determination about whether you are disabled, about a medical issue made by our Federal and State agency medical and psychological consultants at a prior level of review (see § 416.1400) in your current claim based on their review of the evidence in your case record, such as: (i) The existence and severity of your impairment(s); (ii) The existence and severity of your symptoms; (iii) Statements about whether your impairment(s) meets or medically equals any listing in the Listing of Impairments in Part 404, Subpart P, Appendix 1; (iv) If you are a child, statements about whether your impairment(s) functionally equals the listings in Part 404, Subpart P, Appendix 1; (v) If you are an adult, your [RFC]; (vi) Whether your impairment(s) meets the duration requirement; and (vii) How failure to follow prescribed treatment (see § 416.930) and drug addiction and alcoholism (see § 416.935) relate to your claim.20 C.F.R. § 416.913(a)(5).
The ALJ's duty to articulate a rationale for each factor varies. 20 C.F.R. § 416.1520c(a)- (b). Under the new regulations, the ALJ must “explain, ” in all cases, “how [he or she] considered” both the supportability and consistency factors, as they are “the most important factors.” Id. § 416.920c(b)(2); see Young, 2021 WL 4148733, at *9 (describing supportability and consistency as “the most important” of the five factors); Amber H. v. Saul, No. 3: 20-CV-490 (ATB), 2021 WL 2076219, at *4 (N.D.N.Y. May 24, 2021) (noting that the two “most important factors for determining the persuasiveness of medical opinions are consistency and supportability, ” the “same factors” on which the Treating Physician Rule was based); Rivera, 2020 WL 8167136, at *13 (explaining that supportability and consistency are the “most important” factors under 20 C.F.R. § 416.920c(c)). As to supportability, “the strength of a medical opinion increases as the relevance of the objective medical evidence and explanations presented by the medical source increase.” Vellone v. Saul, No. 20 Civ. 261 (RA) (KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021) (citing 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1)); see Rivera, 2020 WL 8167136, at *16 (noting that supportability “has to do with the fit between the medical opinion offered by the source and the underlying evidence and explanations ‘presented' by that source to support [his or] her opinion”) (quoting 20 C.F.R. § 416.920c(c)(1)). Consistency “is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record.” Vellone, 2021 WL 319354, at *6.
As to the three remaining factors-relationship with the claimant, specialization, and “other”-the ALJ is required to consider, but need not explicitly discuss, them in determining the persuasiveness of the opinion of a medical source. 20 C.F.R. § 416.920c(b)(2). If the ALJ finds two or more medical opinions to be equally supported and consistent with the record, but not identical, the ALJ must articulate how he or she considered those three remaining factors. See Id. § 416.920c(b)(3).
Thus, “[a]lthough the new regulations eliminate the perceived hierarchy of medical sources, deference to specific medical opinions, and assigning ‘weight' to a medication opinion, the ALJ must still ‘articulate how [he or she] considered the medical opinions' and ‘how persuasive [he or she] find[s] all of the medical opinions.'” Andrew G. v. Comm'r of Soc. Sec., No. 3: 19-CV-942 (ML), 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (quoting 20 C.F.R. §§ 416.920c(a), (b)(1)). “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.” Rivera, 2020 WL 8167136, at *14 (quoting 20 C.F.R. § 416.920c(b)(2)). “If the ALJ fails adequately to ‘explain the supportability or consistency factors,' or bases [his] explanation upon a misreading of the record, remand is required.” Id. (quoting Andrew G., 2020 WL 5848776, at *9)).
Several opinions among the district courts within the Second Circuit applying the new regulations have concluded that “the factors to be considered in weighing the various medical opinions in a given claimant's medical history are substantially similar” to the former Treating Physician Rule. Acosto Cuevas v. Comm'r of Soc. Sec., No. 20 Civ. 502 (AJN) (KHP), 2021 WL 363682, at *9 (S.D.N.Y. Jan. 29, 2021) (surveying district court cases in the Second Circuit considering the new regulations); see Prieto v. Comm'r of Soc. Sec., No. 20 Civ. 3941 (RWL), 2021 WL 3475625, at *9 (S.D.N.Y. Aug. 6, 2021) (noting that under both the Treating Physician Rule and the new regulations, “an ALJ's failure to properly consider and apply the requisite factors is grounds for remand”); Dany Z. v. Saul, No. 2: 19-CV-217 (WKS), 2021 WL 1232641, at *12 (D. Vt. Mar. 31, 2021) (surveying Second Circuit district courts that “have concluded that the factors are very similar to the analysis under the old [Treating Physician] [R]ule”); Andrew G., 2020 WL 5848776, at *5 (noting that “consistency and supportability” were “the foundation of the treating source rule”); see also Brianne S. v. Comm'r of Soc. Sec., No. 19-CV-1718 (FPG), 2021 WL 856909, at *5 (W.D.N.Y. Mar. 8, 2021) (remanding to ALJ with instructions to provide explicit discussion of supportability and consistency of two medical opinions, because ALJ's “mere[] state[ment]” that examining physician's opinion was not consistent with overall medical evidence was insufficient).
D. Assessing a Claimant's Subjective Allegations
In considering a claimant's symptoms that allegedly limit his or her ability to work, the ALJ must first determine “whether there is an underlying medically determinable physical or mental impairment(s) - i.e., an impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques - that could reasonably be expected to produce the claimant's pain or other symptoms.” 20 C.F.R. § 416.929(c)(3). If such an impairment is found, the ALJ must next evaluate the “intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functional limitations.” 20 C.F.R. § 416.929(c)(1).
To the extent that the claimant's expressed symptoms are not substantiated by the objective medical evidence, the ALJ must evaluate the claimant's credibility. See Meadors v. Astrue, 370 Fed.Appx. 179, 183-84 (2d Cir. 2010); Taylor v. Barnhart, 83 Fed.Appx. 347, 350-51 (2d Cir. 2003). “An ALJ's credibility finding as to the claimant's disability is entitled to deference by a reviewing court.” Rivera v. Berryhill, No. 17 Civ. 991 (JLC), 2018 WL 4328203, at *10 (S.D.N.Y. Sept. 11, 2018). That deference is due “because the ALJ had the opportunity to observe plaintiff's demeanor while [the plaintiff was] testifying.” Marquez v. Colvin, No. 12 Civ. 6819 (PKC), 2013 WL 5568718, at *7 (S.D.N.Y. Oct. 9, 2013). Thus, a district court will not “second-guess” the ALJ's credibility finding “where the ALJ identified specific record-based reasons for his ruling, ” Stanton v. Astrue, 370 Fed.Appx. 231, 234 (2d Cir. 2010), and where the ALJ's credibility finding is supported by substantial evidence. See Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013) (declining to review ALJ's credibility finding where the ALJ “set forth specific reasons why she found [the plaintiff's] testimony not credible”). If the ALJ rejects the claimant's testimony as not credible, the ALJ must set forth the basis for that finding “with sufficient specificity to permit intelligible plenary review of the record.” Williams, 859 F.2d at 260-61. The ALJ may not base his credibility determination “on unsupported interpretations of raw medical evidence or mischaracterizations of the record.” Rivera, 2020 WL 8167136, at *20.
Courts have recognized that “the second stage of [the] analysis may itself involve two parts.” Sanchez v. Astrue, No. 07 Civ. 931 (DAB), 2010 WL 101501, at *14 (S.D.N.Y. Jan. 12, 2010). “First, the ALJ must decide whether objective evidence, on its own, substantiates the extent of the alleged symptoms (as opposed to the question in the first step of whether objective evidence establishes a condition that could ‘reasonably be expected' to produce such symptoms).” Id. “Second, if it does not, the ALJ must gauge a claimant's credibility regarding the alleged symptoms by reference to the seven factors listed [in 20 C.F.R. § 416.929(c)(3)].” Id. (citing Gittens v. Astrue, No. 07 Civ. 1397 (GAY), 2008 WL 2787723, at *5 (S.D.N.Y. June 23, 2008)). These seven factors include: (1) an individual's daily activities; (2) the location, duration, frequency and intensity of pain or other symptoms; (3) factors that precipitate and aggravate those symptoms; (4) the type, dosage, effectiveness, and side effects of medication that the individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, that the individual receives or has received for pain or other symptoms; (6) measures other than treatment the individual uses or has used to relieve pain or other symptoms; and (7) other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. See Bush, 94 F.3d at 46 n.4; 20 C.F.R. § 416.929(c)(3). If the ALJ does not follow these steps, remand is appropriate. Sanchez, 2010 WL 101501, at *15.
IV. DISCUSSION
A. RFC Determination
The Commissioner correctly notes that, to the extent Mr. Rua-Campusano's Motion challenges the ALJ's RFC determination, it was incumbent on Mr. Rua-Campusano “to prove a more restrictive RFC.” Smith v. Berryhill, 740 Fed.Appx. 721, 726 (2d Cir. 2018). (See ECF No. 21 at 17).
Under the SSA regulations, the ALJ was permitted to rely on the entire record, including treatment notes of his treating physicians, in determining Mr. Rua-Campusano's RFC. See Corbiere v. Berryhill, 760 Fed.Appx. 54, 56-57 (2d Cir. 2019) (noting that evidence supporting ALJ's RFC determination included “relevant medical records and testimony of examining and non-examining physicians, ” including an MRI and other exams); 20 C.F.R. § 416.920(e) (explaining that Commissioner will assess RFC “based on all the relevant medical and other evidence” in the record) (emphasis added); Id. § 416.945(a)(3) (explaining that adjudicator will assess RFC based on “all” the relevant evidence in the record); Id. § 416.913(a)(1), (4) (explaining that “evidence” that can be considered includes objective medical evidence, including medical signs and laboratory findings, and evidence from non-medical sources, including the claimant).
The Court finds that the ALJ properly dismissed Mr. Rua-Campusano's argument that his psychiatric conditions prevented him from performing full-time work by reference to mental status examinations showing “generally” that he had “a good mood.” (R. 74 (citing R. 343 (“great”), 346 (“euthymic”), 352 (“euthymic”), 358 (“great”), 364 (“good”), 370 (“good, a little nervous”), 386 (“euthymic”), 393 (“all right”), 402 (“euthymic”), 408 (“good”)). See Burchette v. Comm'r of Soc. Sec., No. 19 Civ. 5402 (PED), 2020 WL 5658878, at *10 (S.D.N.Y. Sept. 23, 2020) (affirming ALJ's RFC determination that was supported by “largely unremarkable mental status examination findings” that were consistent with consultative examiner's opinion); see also Wilber v. Comm'r of Soc. Sec., No. 17-CV-621 (MAT), 2018 WL 5489571, at *3 (W.D.N.Y. Oct. 29, 2018) (finding that mental status examinations showing “good memory, good judgment, and the ability to attend and maintain focus” supported ALJ's decision to afford little weight to contradictory opinion of treating provider). Although some of these examinations took place before the onset date, (see R. 343 (2016), 346 (2016), 352 (2016), 358 (2016), 364 (2016), 370 (February 2017)), the ALJ also relied on Mr. Rua-Campusano's ability, after the onset date in 2017, to do light cleaning, some laundry, and prepare simple meals (R. 75 (citing R. 256-63, 326-27)). The ALJ also cited 2018 and 2019 mental status examinations as showing that Mr. Rua-Campusano's memory was intact and his intelligence was average, (R. 74 (citing R. 423, 434, 455- 56, 463)), and that his concentration was “fair, ” “intact, ” or “good.” (R. 74 (citing R. 402, 408- 09, 434, 455-56, 463)). Accordingly, in this aspect of the ALJ's Decision, the ALJ adequately surveyed the record and supported his findings with citations to evidence from the onset date through the ALJ Hearing.
In this context, euthymic means having “a stable mental state or mood.” Euthymia, Merriam-Webster, https://www.merriam-webster.com/medical/euthymia (last visited Nov. 10, 2021).
B. Evaluation of Medical Opinion Evidence
Mr. Rua-Campusano argues that the ALJ failed to follow the new regulations' requirement to “articulate how persuasive he found any medical opinions in the record, ” and that the ALJ erred by using “boilerplate language” concerning Mr. Rua-Campusano's own statements concerning the intensity, persistence, and limiting effects of his symptoms, and by failing to provide an “analysis of how any evidence in the record [was] ‘not entirely consistent' with [his] allegations.” (ECF No. 15 at 12-13, 18, 21-22). Mr. Rua-Campusano is correct that the ALJ did not use the word “persuasive” one way or the other. (See R. 75). Mr. Rua-Campusano's argument invokes the requirements of the new regulations, which supplant the former Treating Physician Rule. (See § III.C supra). Under the new regulations, an ALJ must consider all medical opinions in the record and “evaluate the persuasiveness” based on five “factors”: (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) any “other” factor that “tend[s] to support or contradict a medical opinion.” 20 C.F.R. § 416.920c(a)- (c)(1)-(5). As other courts in this district have noted, “the Commissioner no longer needs to assign particular evidentiary weight to treating sources or their opinions, ” but rather must consider the five factors in § 416.920c(c) and the “ALJ must explain his/her approach with respect to the first two factors”-supportability and consistency-“when considering a medical opinion, but need not expound on the remaining three.” Vellone, 2021 WL 319354, at *6; see 20 C.F.R. § 416.920c(b)(2) (“[W]e will explain how we considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings in your determination or decision.”).
Here, the ALJ did reference the consistency of the medical opinions of Drs. Juriga, Kronk, Coll-Ruiz and Ellis, but did not discuss the supportability factor or ultimately state which, if any of these opinions, he found persuasive. (R. 75). Although the Court is hesitant to assign “magic” status to the word “persuasiveness” in the new regulations, see Sassone v. Comm'r of Soc. Sec., 165 Fed.Appx. 954, 959 (3d Cir. 2006), the ALJ's brief, categorical dismissal of the three medical opinions without discussing supportability or persuasiveness is not sufficient under the new regulations. See Prieto, 2021 WL 3475625, at *9, *14-15 (remanding based on “ALJ's failure to properly consider and apply the requisite factors” under the new regulations); Vellone, 2021 WL 319354, at *6 (explaining that “in cases where the new regulations apply, an ALJ must explain his/her approach with respect to the first two factors [supportability and consistency] when considering a medical opinion”); Andrew G., 2020 WL 5848776, at *6-9 (remanding based on ALJ's failure to explain adequately supportability or consistency factors).
C. Credibility Determination
Here, the ALJ determined that Mr. Rua-Campusano's “statements concerning the intensity, persistence and limiting effects of [his] symptoms [were] not entirely consistent with the medical evidence and other evidence in the record” for reasons explained in the ALJ Decision. (R. 75). On remand, the Court respectfully recommends that ALJ reassess Mr. Rua-Campusano's credibility based on the entirety of the record, including his treatment records and the medical opinion evidence evaluated under the new regulations as discussed above.
V. CONCLUSION
For the reasons set forth above, I respectfully recommend granting Mr. Rua-Campusano's
Motion; denying the Commissioner's Motion; vacating the Commissioner's Decision denying benefits; and remanding this matter to the SSA for further proceedings.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Daniels.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).