Opinion
19 Civ. 2466 (KMK)(PED)
08-24-2020
JOHN WILLIAM SEYMOUR, Plaintiff, v. ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant.[1]
REPORT AND RECOMMENDATION
PAUL E. DAVISON, U.S.M.J.
TO THE HONORABLE KENNETH M. KARAS, United States District Judge:
I. INTRODUCTION
Plaintiff John Seymour brings this action pursuant to 42 U.S.C. § 405(g) challenging the decision of the Commissioner of Social Security (the "Commissioner") denying his application for benefits on the ground that he is not disabled within the meaning of the Social Security Act (the "SSA"), 42 U.S.C. §§ 423 et seq. The period at issue begins February 8, 2008, the date plaintiff alleges he became disabled, and ends on December 31, 2011, the date he was last insured for disability benefits. The matter is before me pursuant to an Order of Reference entered March 28, 2019 (Dkt. #6).
Presently before this Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. #13 (plaintiffs motion), #14 (plaintiffs memorandum of law), #15 (defendant's cross-motion), #16 (defendant's memorandum of law) and #17 (plaintiffs reply)). Plaintiff argues, as the basis for his motion, that the ALJ failed to provide "good reasons" for rejecting the opinions of treating physicians Dr. John Lyden and Dr. Miriam Kanter. Dkt. #14, at 17-24. Defendant asserts, in response, that the ALJ applied the correct legal standards and that substantial evidence supports the ALJ's decision. Dkt. #16, at 12-25. For the reasons set forth below, I respectfully recommend that plaintiffs motion be DENIED and that defendant's motion be GRANTED.
II. BACKGROUND
The following facts are taken from the administrative record ("R") of the Social Security Administration, filed by defendant on July 25, 2019 (Dkt. #8).
The Court conducted a plenary review of the entire administrative record, familiarity with which is presumed. In light of plaintiff s narrow challenge to the ALJ's decision, I assume knowledge of the facts surrounding plaintiffs medical treatment and do not recite them m detail, except as germane to the analysis set forth below.
A. Procedural History
On or about August 28, 2009, plaintiff filed his initial application for disability benefits, wherein he alleged he had been unable to work since February 8, 2008 due to torn menisci and arthritis in both knees. R. 136-40, 159. His claim was administratively denied on or about December 17, 2009; plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ"). R. 78-87. On October 18, 2010, plaintiff appeared (with counsel) and testified at a hearing before ALJ Robert Gonzalez. R. 38-72. On November 22, 2010, ALJ Gonzalez issued a written decision in which he concluded that plaintiff was not disabled during the relevant period within the meaning of the SSA. R. 28-37. After the Appeals Council denied his request for review (R. 1-4), plaintiff filed suit in this Court (12 Civ. 5379 (RJS)). R. 1056-58. On December 11, 2012, by stipulation of the parlies, the Court remanded the case for additional proceedings. R. 942-44. In turn, the Appeals Council remanded the case to ALJ Gonzalez on January 15, 2013. R. 1060-65.
On September 10, 2013, plaintiff appeared (with counsel) and testified at a supplemental hearing before ALJ Gonzalez. R. 945-75. By decision dated May 15, 2014, the ALJ again denied plaintiffs claim for disability benefits. On or about May 28, 2014, plaintiff filed exceptions to the ALJ's decision. R. 1012-28. By letter dated October 23, 2015, the Appeals Counsel notified plaintiff that it had considered his exceptions and found no reason to assume jurisdiction. R. 910-14. On or about December 27, 2015, plaintiff commenced a second suit in this Court (15 Civ. 10049 (RA)). T. 1661-64. On December 16, 2016, by stipulation of the parties, the Court remanded the case for additional proceedings. R. 1672-74. By Order dated March 10, 2017, the Appeals Council remanded the case to a different ALJ with instructions to, inter alia, (1) further develop the record by requesting evidence from Dr. Kanter and (2) give further consideration to the treating source opinions of Dr. Kanter and Dr. Lyden and explain the weight given to those opinions. R, 1675-79.
On January 18, 2018, plaintiff appeared (with counsel) and testified at a hearing before ALJ Vincent Cascio. R. 1604-26. On November 19, 2018, ALJ Cascio issued a written decision in which he concluded that plaintiff was not disabled during the relevant period within the meaning of the SS A. R. 1570-84. Plaintiff did not file written exceptions; instead, after the ALJ's decision became the final order of the Commissioner, plaintiff commenced the instant action.
B. Consultative Examination
On November 25, 2009, Dr. Suraj Malhotra conducted a consultative orthopedic examination of plaintiff. R. 318-21. Plaintiff complained of persistent pain in his right knee for the past eleven years. R. 318, He described the pain as a dull ache, 5/10 in intensity, with occasional swelling and worsened with moving and prolonged walking. Id. Plaintiff reported intermittent pain in the left knee since a slip and fall injury at work in 2003. Id. He described the pain as a dull ache (sharp at times), 5/10 in intensity, with occasional swelling and worsened with walking and climbing stairs. Id. He also reported intermittent, dull, aching pain in his right hip for the past year (intensity 4/10) for which he had not sought treatment. R. 319.
Plaintiff stated that he consults an orthopedic physician for the knee problem but had not seen him in a year and a half. R. 318. Plaintiff reported right knee torn meniscus surgery in 1998 (which did not improve the pain) and left knee torn meniscus surgery in 2004 (after which he "did not improve much"). Id. He also reported MRIs in 2004 (right knee) and 2007 (left knee). Id. Plaintiff stated that the 2007 MRJ showed another meniscus tear for which surgery was advised, but he did not consent. Id. He reported that his wife does the cooking, cleaning, laundry and shopping; he showers, bathes, dresses himself, watches television, listens to the radio, reads and goes out to doctor appointments, to dinner and to socialize with friends. R. 319.
Upon examination, Dr. Malhotra observed that plaintiff appeared to be in no acute distress. R. 320. His gait was normal, his squat was three-quarters of the distance (limited by right knee pain) and he could walk on heels and toes without difficulty. Id. He used no assistive device. Id. Plaintiff needed no help changing for the exam or getting on and off the exam table, and was able to rise from a chair without difficulty. Id
Plaintiffs hand and finger dexterity were intact; his grip strength was 5/5 bilaterally. Id. His cervical spine showed full flexion, extension, bilateral flexion and bilateral rotation, with no pain, spasm or trigger points. Id. Plaintiffs thoracic and lumbar spine showed full flexion, extension, bilateral flexion and bilateral rotation, with no spinal/paraspinal tenderness, spasm, trigger points or SI joint/sciatic notch tenderness. Id, Straight-leg raising test was negative bilaterally. Id, Plaintiff had full strength and ROM in his upper extremities and in his lower extremities (with minimal pain on extreme flexion of his right knee), no abnormalities in sensation or reflexes, no muscle atrophy and no joint effusion, inflammation or instability. Id. An X-ray of plaintiffs right knee showed lateral joint space narrowing. R. 321.
Dr. Malhotra diagnosed hypertension by history, right hip pain, "status post repair of right knee torn meniscus, remote with pain" and "status post repair of left knee torn meniscus, remote with pain." Id. He opined that plaintiff had "[m]inimal limitation on squatting" and that his prognosis was "good." Id.
C. The Opinions at Issue
1. Dr. John Lyden
In January 2004, plaintiff sought treatment for his left knee pain from orthopedic surgeon Dr. John Lyden from the Hospital for Special Surgery. R. 761, 867, 872. In February 2004, Dr. Lyden surgically repaired meniscal tears in plaintiffs left knee, R. 768-71, 802-04, 828-31, 868-71, 1198-1203. An MRI of plaintiff s right knee revealed degeneration of the posterior horn remnant, advanced cartilage wear in the lateral compartment and full thickness cartilage loss over both the lateral femoral condyle and lateral tibial plateau. R. 777-79.
Dr. Lyden advised that the surgery would not address pre-existing degenerative osteoarthritis and arthritic wear in plaintiffs left knee. R. 761, 872-73.
In July 2005, a follow-up MRI of plaintiff s left knee revealed evidence of the prior lateral meniscectomy, moderately severe lateral arthrosis, a tear of the posterior horn of the medial meniscus associated with parameniscal cysts and focal condral defect. R. 881-82. Another left knee MRI in August 2007 indicated a possible re-tear of the posterior horn of the medial meniscus, degenerative osteoarthropathy involving all three compartments of the knee, mild lateral patellar subluxation and small joint effusion. R. 305-06, 1221-22.
In a letter dated April 22, 2008, Dr. Lyden advised that, despite a prior successful surgery, plaintiff continued to experience pain, weakness and instability in his left knee, and difficulty with extended walking, running, squatting and entering/exiting a vehId.e. R. 867. Dr. Lyden opined: "Because of the severity of damage to his left knee, Mr. Seymour is not capable of performing the full rigors of police work and should therefore be considered as disabled." Id.
Plaintiff had a long career with the New York Police Department, culminating in a promotion to Deputy Chief (overseeing eight precincts in south Queens) in 2004. R. 1613-14. He held that administrative position until he retired on February 8, 2008. R. 1615-16. On September 9, 2008, the Medical Board Police Pension Fund determined plaintiff was entitled to accident disability retirement. R. 392-95, 1617.
On June 26, 2012, plaintiff returned to Dr. Lyden and complained of "progressive knee deformity and pain." R. 1394, 1566. X-rays of plaintiff s knees revealed "bilateral valgus deformity and lateral [degenerative joint disease]." Id. Dr. Lyden diagnosed valgus degenerative joint disease of both knees and discussed bilateral total knee replacement surgery. Id. On July 26, 2012, Dr. Lyden administered Synvisc injections to both of plaintiff s knees. R. 1393,1565.
A valgus deformity refers to "a deformity in which an anatomical part is turned outward away from the midline of the body to an abnormal degree." Merriam-Webster.com Dictionary, Merriam-Webster, available at https://www.merriam-webster.com/dictionary/valgus (accessed July 31. 2020).
Plaintiff returned to Dr. Lyden on January 3, 2013. Id. Upon examination, Dr. Lyden noted full range of motion, minimal puffiness, 15 °of valgus on the right and 10°on the left. Id, He assessed degenerative joint disease of both knees, right worse than left, and again discussed knee replacement surgery. Id. Two weeks later, on January 17, 2013, plaintiff underwent bilateral total knee replacement surgery. R. 1354-57, 1565.
Dr. Lyden examined plaintiff on February 19, 2013 and noted "no problems." R. 1392, 1564. Dr. Lyden stated that plaintiffs knee "is doing well" and that his "X-rays look good." Id. Plaintiff was "very happy with the results" of the surgery and was told to return in two months. Id At his follow-up appointment on April 18, 2013, plaintiff reported "[f]eeling much better" and was directed to continue his exercise and rehabilitation programs. Id. Dr. Lyden noted "X- rays today look fine" and "[k]nee is doing fine." Id, Plaintiff returned to Dr. Lyden on June 3, 2013 and reported "some acute swelling and discomfort in his right knee." R. 1564. X-rays showed both knees "in good position." Id. Upon examination, plaintiff had "full motion of both knees" and "a mild effusion of the right knee, but no actual restriction of function whatsoever." Id.
On September 6, 2013, Dr. Lyden completed a "Treating Doctor's Patient Functional Assessment to do Sedentary Work" form. R. 1561-62. Dr. Lyden opined that plaintiff: was able to stand and/or walk for less than two hours and sit less than six hours in an eight-hour work day; could lift and/or carry less than ten pounds for one-third of the workday, and less than five pounds for two-thirds of the workday; requires frequent breaks during the workday; and would be absent two or more days each month. Id. In a letter dated the same day, Dr. Lyden stated:
I have been treating John Seymour since 2004 for progressive bilateral knee deformity and pain. It is my opinion, with a reasonable degree of medical certainty, that Mr. Seymour has functional limitations that prevent him from sitting six hours or standing two hours in an eight hour work day, as well as lifting restrictions of less than ten pounds for 1/3 of an eight hour work day or five pounds of 2/3 of an eight hour work day. Mr. Seymour requires periods of rest along with frequent breaks during the day. He suffers pain which necessitates the use of prescription medications, the side effects of which interfere with his ability to work. He would have difficulty concentrating on his work and would require at least two sick days each month.
My opinion regarding Mr. Seymour's functional limitations is based on the objective medical evidence in his file (including MRI and operative reports), along with my clinical observations generated over the patients [sic] long history of treatment in my office. Accordingly, I believe that his functional limitations precluded the same going back to February 2008.R. 1563.
2. Dr. Miriam Kanter
On September 30, 2010, plaintiff went to Dr. Miriam Kanter for an Initial Physiatric Evaluation. R. 1319-21. Plaintiff reported a history of chronic bilateral knee derangements and bilateral knee surgeiy, and complained of moderate, ongoing knee pain. R. 1319. He reported that he can sit at the beginning of the day for an hour and a half and then needs to rise for at least half an hour but, several hours into the day, he can sit no more than half an hour. Id. Plaintiff stated that he retired from the police department in 2008 because he could not complete his work due to severe bilateral knee pain. Id, Dr. Kanter reviewed plaintiffs MRI reports from July 28, 1998 (right knee), October 2003 (left knee), February 17, 2004 (right knee) and August 23, 2007 (left knee). Id. Upon physical examination of plaintiffs right knee, Dr. Kanter noted: mild effusion; full extension but flexion limited to 100/135 degrees; severe genu valgus; retropatellar and medial joint line tenderness; crepitations with knee flexion; intact quadriceps and hamstring strength; and positive McMurray's sign (all other orthopedic tests negative). R, 1320. Examination of plaintiff s left knee revealed: no effusion; full extension but flexion limited to 100/135 degrees; mild genu valgus; retropatellar tenderness (no joint line tenderness); crepitations with knee flexion; intact quadriceps and hamstring strength; and all negative orthopedic tests. Id. Dr. Kanter diagnosed bilateral knee derangement, left knee medial meniscus tear and severe knee osteoarthritis (bilaterally). She opined:
The McMurray test involves "rotation of the tibia on the femur to determine injury to meniscal structures." Farlex Partner Medical Dictionary © Farlex 2012, available at https://medical-dictionary.thefreedictionarv,com/McMurray+test (accessed August 4, 2020).
Mr. Seymour is totally disabled from any work including sedentary work due to the condition of his knees as described above. He is unable to sit for more than 5 hours total within an 8 hour day. He is also unable to stand for more than 2 hours and is restricted from lifting more than 5 pounds due to exacerbation of knee pain and injury with these activities. As such, he is totally disabled and has been advised not to return to work.Id
That same day, Dr. Kanter completed a "Treating Doctor's Patient Functional Assessment to do Sedentary Work" form, in which she opined that plaintiff could stand and/or walk less than two hours and sit less than six hours in an eight-hour work day, lift and/or carry less than ten pounds for up to 1/3 of an eight-hour workday and lift and/or carry less than five pounds for up to 2/3 of an eight-hour workday. R. 251. Additionally, Dr. Kanter opined that plaintiff had the following limitations which would interfere with his ability to perform work during an eight-hour day, five days per week:
-requires periods of bed rest during the work day;
-requires frequent breaks during the work day;
-suffers with pain which prevents him from performing 8 hours of work;
-requires medications that interfere with his ability to function in a work setting;
-would have difficulty concentrating on his work;
-requires an average of 2 or more sick days off each month; and
-has environmental restrictions due to physical limitations and/or sensitivity.R. 252. Dr. Kanter indicated that her opinion was supported by a July 8, 2009 X-ray showing moderate degenerative joint disease in plaintiffs lower back and knees, the August 2007 MRI showing a left knee tear and the February 2004 MRI showing a right knee full tear. Id.
In February 2018, Dr. Kanter completed a questionnaire sent by ALJ Cascio for the purpose of clarifying the basis for her opinion. R. 1877-79. Dr. Kanter stated she had twenty years' experience evaluating patients, including disability status, as part of her job as a physician. R. 1877. She explained that her opinion was based upon a 30-minute physical examination "coupled with record review" (including MRIs of plaintiff s knees). R. 1878. Dr. Kanter stated that plaintiffs limitations were the result of a left knee meniscal tear (status post surgery) and right knee cartilage degeneration (status post surgery). Id.
D. The ALJ's Assessment of the Opinions at Issue
The ALJ determined that, during the relevant period, plaintiff:
had the residual functional capacity ("RFC") to perform the full range of sedentary work, as defined in 20 CFR 404.1567(a), in that-in an 8-hour workday-he could sit approximately 6 hours, stand and/or walk approximately 2 hours and occasionally life/carry up to 10 pounds. He can occasionally climb ramps and stairs; never climb ropes, ladders or scaffolds; occasionally stoop and crouch; never kneel or crawl and can never be exposed to unprotected heights or hazardous machines. He can frequently flex, extend and rotate the neck and must be permitted to alternate positions between sitting and standing at will, provided he is not off-task 5% of the workday.R. 1574.
In making this determination, the ALJ gave "little weight" to Dr. Kanter's Initial Physiatric Evaluation (dated September 30, 2010) "as it is poorly supported by" (1) Dr. Malhotra's consultative examination (on November 25, 2009), (2) plaintiffs reported activities of daily living ("ADLs") (as conveyed to Dr. Malhotra) and (3) the December 9, 2009 opinion of the State agency medical consultant (Dr. Blaber). R. 1578-79. Similarly, the ALJ gave "little weight" to Dr. Kanter's clarification opinion "as it is not supported by" (1) Dr. Malhotra's consultative examination findings, (2) plaintiffs "description of a fairly broad range of daily activities" (including showering, bathing, dressing himself, going to doctor's appointments, going out to dinner and socializing with friends) and (3) Dr. Blaber's opinion based upon review of the medical record. R, 1581, Finally, the ALJ addressed Dr. Lyden's opinion as follows:
However, numerous attempts by both Administrative Law Judge Gonzalez and the undersigned (Exhibit 46E)[ ] were made to clarify the opinions of Dr. Lyden but he failed to clarify his opinion and his opinion is not supported by findings reported and the activities of daily living described by the claimant in a consultative examination in November 2009 (Exhibit 7F) [Dr. Malhotra] and the opinion of a State agency medical consultant (Exhibit 9F) [Dr. Blaber],R. 1580. See also R. 1578-79.
III. STANDARD OF REVIEW
In reviewing a decision of the Commissioner, a district court may "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). See 42 U.S.C. § 1383(c)(3). "It is not the function of a reviewing court to decide de novo whether a claimant was disabled." Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). Rather, the court's review is limited to "'determining] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.'" Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (quoting Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002)).
The substantial evidence standard is "even more" deferential than the '"clearly erroneous' standard." Brault v. Soc. Sec. Admin, 683 F.3d 443, 448 (2d Cir. 2012). The reviewing court must defer to the Commissioner's factual findings and the inferences drawn from those facts, and the Commissioner's findings of fact are considered conclusive if they are supported by substantial evidence. See 42 U.S.C. § 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). Substantial evidence is '"more than a mere scintilla'" and '"means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Lamay v. Comm'r of Soc. Sec, 562 F.3d 503, 507 (2d Cir. 2009) (quoting Richardson v. Perales. 402 U.S. 389, 401 (1971)). "In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn." Talavera v. Astrue. 697 F.3d 145, 151 (2d Cir. 2012) (internal quotation marks and citation omitted). "If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld." Mclntvre v. Colvin. 758 F.3d 146,149 (2d Cir. 2014) (citation omitted).
"However, where the proper legal standards have not been applied and 'might have affected the disposition of the case, the court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ. Failure to apply the correct legal standards is grounds for reversal.'" Velez v. Colvin, No. 14 Civ. 3084, 2017 WL 1831103, at *I5 (S.D.N.Y. June 5, 2017) (citing Pollard v. Halter. 377 F.3d 183, 189 (2d Cir. 2004)). Thus, "[w]hen there are gaps in the administrative record or the ALJ has applied an improper legal standard," or when the ALJ's rationale is unclear in relation to the record evidence, remand to the Commissioner "for further development of the evidence" or for an explanation of the ALJ's reasoning is warranted, Pratts v. Chater. 94 F.3d 34, 39 (2d Cir. 1996).
IV. DISCUSSION
A. The Treating Physician Rule
Although the SSA revised its rules to eliminate the "treating physician rule," it remains applicable to claims filed before March 27, 2017. See, e.g., Salati v. Saul, 415 F.Supp. 3d 433, 447 (S.D.N.Y. 2019).
"Social Security Administration regulations, as well as [Second Circuit] precedent, mandate specific procedures that an ALJ must follow in determining the appropriate weight to assign a treating physician's opinion." Estrella v. Berrvhill 925 F.3d 90, 95 (2d Cir. 2019). "First, the ALJ must decide whether the opinion is entitled to controlling weight." Id. The ALJ must give controlling weight to a treating physician's opinion as to the nature and severity of the impairment if it "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." Id. (quoting Burgess v. Astrue. 537 F.3d 117, 128 (2d Cir. 2008)). If a treating physician's opinion is contradicted by or inconsistent with other substantial evidence in the record, the ALJ may give that treating source's opinion less weight. See Halloran v. Barnhart, 362F.3d28,32 (2d Cir. 2004).
Second, if the ALJ does not give controlling weight to a treating source's opinion, the ALJ must consider various factors and provide "good reasons" for the weight given. 20 C.F.R. §§ 404.1527(c)(2)-(6), 4l6.927(c)(2)-(6); see also Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015). These "nonexclusive Burgess factors [include]: (1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist." Estrella, 925 F.3d at 95-96 (quotation marks and citations omitted). In order to override an opinion from a treating physician, the ALJ must "explicitly consider" the Burgess factors. Greek, 802 F.3d at 375 (quoting Selian v. Astrue. 708 F.3d 409, 418 (2d Cir. 2013) (per curiam)). "An ALJ's failure to 'explicitly' apply the Burgess factors when assigning weight at step two is a procedural error." Estrella, 925 F.3d at 96. If the ALJ has not otherwise provided "good reasons" for the weight accorded to a treating physician's opinion, the case must be remanded unless "a searching review of the record" assures the Court that the ALJ applied "the substance of the treating physician rule." Id.
B. Dr. Kanter is not a Treating Source
Plaintiff argues that the ALJ failed to give good reasons for rejecting the opinion of Dr. Kanter, whom plaintiff describes as his "treating physiatrist." Dkt. #14, at 18-19. However, as defendant points out, Dr. Kanter does not qualify as a "treating source" under SSA regulations:
Treating source means your own acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you, Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s). We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s).20 C.F.R. § 404.1527(a)(2). Here, Dr. Kanter admitted her opinion was based upon a single examination of plaintiff in September 2010. R. 1319-21, 1877-79. Indeed, in his reply, plaintiff reiterates his argument that the ALJ failed to assign controlling weight to Dr. Lyden's opinion, but plaintiff does not extend that contention to Dr. Kanter's opinion. Dkt. #17, at 2-4. Accordingly, the ALJ's assignment of "little weight" to Dr. Kanter's opinion did not violate the treating physician rule. See Greek, 802 F.3d at 375 (SSA "recognizes a rule of deference to the medical views of a physician who is engaged in the primary treatment of a claimant.").
C. The ALJ Did Not Err in Discounting Dr. Lyden's Opinion
Upon careful review of the record, I conclude that the ALJ failed to explicitly consider each of the Burgess factors in evaluating Dr. Lyden's opinion, thus committing procedural error. See Estrella, 925 F.3d at 96. Plaintiff argues, on various grounds, that this procedural error was not harmless because the ALJ failed to give "good reasons" for rejecting Dr. Lyden's opinion. Dirt. #14, at 19-25. I disagree. After conducting a "searching review of the record," the undersigned is satisfied that the ALJ properly weighed Dr. Lyden's opinion, proffered "good reasons" for discounting it and applied the substance of the treating physician rule.
First, plaintiff asserts that the ALJ erroneously discounted Dr. Lyden's opinion because he failed to respond to requests for clarification. As the ALJ noted, Dr. Lyden ignored multiple requests for clarification: on or about October 31, 2013, Dr. Lyden refused mail delivery of the first request (dated October 25, 2013); he did not respond to follow up requests (mailed on or about January 17, 2018, faxed on June 21, 2018 and faxed again on September 24, 2018). R. 1178-82, 1215, 1599-1603, 1864. Plaintiff contends, however, that there was no need to request additional information from Dr. Lyden because the answers to the questions are contained in the record. I disagree. Dr. Lyden authored his report on September 6, 2013, approximately one year and eight months after the date plaintiff was last insured (December 31, 2011), and opined that plaintiffs functional limitations precluded him from working as of February 2008 (when plaintiff alleges he became disabled). R. 1563. Dr. Lyden stated: "My opinion regarding Mr. Seymour's functional limitations is based on the objective medical evidence in his file (including MRI and operative reports), along with my clinical observations generated over the patients [sic] long history of treatment in my office." Id. But, apart from Dr. Lyden's letter dated April 27, 2008 (apparently in support of plaintiff s request for a disability pension), there are no treatment notes from Dr. Lyden during the relevant period (February 2008 through December 2011); the treatment notes reflect plaintiffs return to Dr. Lyden on June 26, 2012, approximately six months after the date plaintiff was last insured. Faced with this gap in Dr. Lyden's treatment records, the ALJ necessarily sought clarification of the basis for Dr. Lyden's opinion that plaintiff was disabled during the relevant period.
Indeed, on November 25, 2009, plaintiff told consultative examiner Dr. Malhotra that he had not seen his orthopedic physician in a year and a half. R. 318.
Second, plaintiff contends that Dr. Malhotra's evaluation was incomplete because the agency did not provide him with plaintiffs MRIs and left knee arthroscopy surgical report, contrary to the requirements of 20 C.F.R. § 404.1517 ("We will also give the examiner any necessary background information about your condition.") and Burgess, 537 F.3d at 132 (opinion of consulting physician who did not review diagnostic MRI evidence could not outweigh treating physician's opinion). In the first instance, it was not error per se for the ALJ to give great weight to Dr. Malhotra's opinion despite the fact that he had not reviewed the diagnostic reports. See Wright v. Berryhill. 687 F. App'x 45, 48 (2d Cir. 2017) (summary order). "The SSA's statement that an examiner must be given 'necessary background information about [a claimant's] condition,' 20 C.F.R. §§ 404.1517, 416.917, does not mandate that 'the examiner must be provided with plaintiffs medical records,' as plaintiff asserts it does." Genovese v. Astrue, No. 11 Civ. 2054, 2012 WL 4960355, at *I8 (E.D.N.Y. Oct. 17, 2012). Here, Dr. Malhotra was familiar with plaintiffs medical history (including diagnostic testing): he noted plaintiffs report of right knee torn meniscus surgery in 1998 (which did not improve the pain); left knee torn meniscus surgery in 2004 (after which he "did not improve much"); a right knee MRI in 2004; and a left knee MRI in 2007 (showing another meniscus tear for which surgery was advised but declined). R. 318. Further, the holding in Burgess in applicable to this case. The Burgess court held that the opinion of a consultative examiner who failed to review a critical MRI report-which contradicted the examiner's conclusions-could not be used to rebut a treating physician's opinion. See Burgess, 537 F.3d at 125, 132. Here, the ALJ did not rely on Dr. Malhotra's medical source statement to rebut Dr. Lyden's opinion; instead, he relied on Dr. Malhotra's clinical findings and plaintiffs report to Dr. Malhotra regarding his activities of daily living. R. 1580. Thus, the ALJ "did not err when he weighed factual evidence gleaned from" Dr. Malhotra's report against Dr. Lyden's "opinion[ ] regarding the severity of [p]laintiff s physical impairments and decided to assign Dr. [Lyden's] opinion little weight." Quintana v. Berryhiil,No. 18 Civ. 00561, 2019 WL 1254663, at *I2 (S.D.N.Y. Mar. 19, 2019). "In any event, particularly where the consultative physician has directly examined plaintiff, there is no requirement that his opinion be disregarded because of a lack of review of prior records." Mayor v. Colvin. No. 15 Civ. 0344, 2015 WL 9166119, at *I8 n.24 (S.D.N.Y. Dec. 17, 2015).
Third, plaintiff argues that the ALJ improperly accorded "great weight" to the opinion of consultative examiner Dr. Malhotra while improperly discounting Dr. Lyden's opinion. As plaintiff points out, the Second Circuit has "frequently cautioned that ALJs should not rely heavily on the findings of consultative physicians after a single examination." Estrella, 925 F.3d at 98 (quotation marks and citation omitted). Nonetheless, "[i]t is not per se legal error for an ALJ to give greater weight to a consulting opinion than a treating opinion." Rivera v. Colvin, No. 13 Civ. 7150, 2015 WL 1027163, at *I6 (S.D.N.Y. Mar. 9, 2015) (citing Rosier v. Colvin, No. 13-4490-CV, 2014 WL 5032325 at *2 (2d Cir. Oct.9, 2014) (summary order)). However, "such a decision must be based upon proper consideration of relevant factors and sufficiently explained." Mercado v. Colvin, No. 15 Civ. 2283, 2016 WL 3866587, at *20 (S.D.N.Y. July 13, 2016) (citing 20 C.F.R. § 404.1527(c)(1)(6), (e)(2)(ii) (requiring explanation of weight determination); Pervea v. Comrn'r of Soc. Sec. No. 13 Civ. 173, 2014 WL 4105296, at *8 (N.D.N.Y. Aug. 20, 2014) ("[Consulting] opinions must be evaluated according to the criteria governing all medical opinions.")). Moreover, "[w]hen determining the weight that should be assigned to a treating physician's opinion, the ALJ may also consider: the opinions of other medical experts that conflict with those of the claimant's treating physician; a lack of objective medical evidence supporting the treating physician's opinion; and evidence from the claimant h[im]self that undermines [his] treating physician's opinion about [his] limitations." Quintana, 2019 WL 1254663, at *IO (citations omitted). Here, the ALJ noted that Dr. Lyden failed to respond to numerous requests for clarification of the basis for his opinion (R. 1580); clarification was necessary given the absence of treatment notes from Dr. Lyden during the relevant period. Further, as the ALJ noted, Dr. Malhotra's examination (which occurred within the relevant period) yielded largely unremarkable clinical findings which support an RFC for sedentary work. R. 318-20, 1578-79. The ALJ also noted that plaintiff told Dr. Malhotra he was able to bathe, shower, dress himself every day. drive, use public transportation, watch television, listen to the radio, read and go out to doctor's appointments, to dinner and to socialize with friends. R. 319, 1579-80. Plaintiff stresses that Dr. Malhotra's findings are inconsistent with the following record evidence:
Plaintiff challenges the ALJ's reliance on physical therapy notes (post-bilateral knee surgery) for the proposition that plaintiff "was independent in ADLs (activities of daily living) prior to admission." R. 1575-76. Plaintiff is correct: the physical therapy intake notes cited by the ALJ indicate that pain affected plaintiffs ADLs, "more so in the past couple of months." R. 1418. However, the ALJ did not discount Dr. Lyden's opinion based upon the physical therapy intake notes; rather, the ALJ relied upon plaintiffs report of ADLs to Dr. Malhotra. R. 1580.
• the September 9, 2008 NYPD Medical Board examination report noting a valgus deformity (more marked on the left), restricted flexion of the left knee at 90°, medial and lateral joint line tenderness in the left knee and a 1- to 1 and V% inch atrophy of the left thigh (R. 392-95);
• on June 24, 2009, Dr. Garcia noted limited flexion of the knees and valgus deformity (R. 883-87);
• throughout 2010, physical therapist Eleanore Robles noted swelling and edema in the knees and gait deviation (R. 893-900); and
• on September 30, 2010, Dr. Kanter noted mild effusion in the knee, limited ROM (to 100°), severe genu valgus, retropatellar and medial joint line tenderness, and positive McMurray's sign (R. 1320).Id.
"An ALJ is not required to explicitly analyze every piece of conflicting evidence in the record." Danielle R. v. Comm'r of Soc. Sec. No. 19 Civ. 00538, 2020 WL 2062138, at *2 (N.D.N,Y. Apr. 29, 2020) (citing Mongeur v. Heckler. 722 F.2d 1033, 1040 (2d Cir. 1983); Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) ("we are unwilling to require an ALJ explicitly to reconcile every conflicting shred of medical testimony")). Here, the ALJ reviewed the entire medical record, including the evidence plaintiff emphasizes (R. 1576-81), evaluated the opinion evidence within that context and sufficiently explained the weight he accorded each opinion. "It is within an ALJ's discretion to resolve genuine conflicts in the medical evidence." Martes v. Comm'r of Soc. Sec.. 344 F.Supp. 3d 750, 760 (S.D.N.Y. 2018) (quoting Veino v. Bamhart. 312 F.3d 578, 588 (2d Cir. 2002)). At bottom, on this record, the ALJ provided good reasons for crediting Dr. Malhotra's opinion while discounting Dr. Lyden's opinion.
Fourth, plaintiff asserts that the ALJ's assignment of "great weight" to the December 2009 opinion of Dr. R. Blaber (a State agency medical consultant) is "puzzling" because he is not a specialist, his opinion is sparse and conclusory and he did not discuss the MRI evidence addressed by Dr. Lyden and Dr. Kanter. Dkt. #14, at 24; see R. 338-39. "[A]n ALJ is entitled to rely on opinions from both examining and non-examining State agency medical consultants because these consultants are considered to he Qualified exnerts in the field of social security disability." Helmbrecht v. Comm'r of Soc. Sec, No. 19 Civ. 0027, 2020 WL 4226850, at *4 (W.D.N.Y. July 23, 2020) (citing 20 C.F.R. § 416.927(e)). See Liberatore v. Colvin, No. 15 Civ. 1483, 2016 WL 7053443, at *7 (N.D.N.Y. Dec. 5, 2016) (same) (citing Little v. Colvin. 14 Civ. 0063, 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26, 2015) ("State agency physicians are qualified as experts in the evaluation of medical issues in disability claims. As such, their opinions may constitute substantial evidence if they are consistent with the record as a whole.")). Here, the ALJ addressed Dr. Blaber's opinion as follows:
Great weight is given by the undersigned to the opinion of Dr. Blaber, as expert opinion evidence from a non-examining source . .. because it is consistent with another opinion in the record, that of Dr. Malhotra, a physician who actually examined the claimant.R. 1579. The ALJ's decision to give "great" weight to Dr. Blaber's opinion is supported by Dr. Malhotra's opinion and plaintiffs self-report of ADLs to Dr. Malhotra- the same evidence the ALJ relied upon to discount Dr. Lyden's opinion. Thus, the ALJ's assignment of "great weight" to Dr. Blaber's opinion is supported by substantial evidence. See Marozzi v. Berryhilh No. 17 Civ. 6864, 2019 WL 497629, at *6 (W.D.N.Y. Feb. 8, 2019) (citing Frawlev v. Colvin, No. 13 Civ. 1567, 2014 WL 6810661 at *5-7, *9-lO (N.D.N.Y. Dec. 2, 2014) (ALJ's decision to give "great" weight to the opinion of a consultative examiner was supported by substantial evidence because the opinion was consistent with the same medical evidence the ALJ relied on to reject the treating source's opinion)).
Finally, plaintiff argues that the ALJ erred because he failed to consider plaintiffs work history and failed to address Dr. Lyden's statement that plaintiffs use of prescription medication would interfere with his ability to work. Dkt. #14, at 24-25. I disagree. First, the ALJ explicitly discussed plaintiffs work history:
He holds a Bachelor's degree and last worked on February 8, 2008 as a deputy police inspector in the support services bureau, a position that he held since 2000. As such he was an Executive Officer second in command. From 1994 or 1995 until 2004 he was promoted to inspector and then deputy chief, when he was moved to a field job. He made deputy inspector in 2000; full inspector in 2001 and deputy chief in 2004. As deputy chief, he was second in command of Queens South, which comprised 8 precincts.... He retired from the police department and eventually got disability retirement because he was required to be able to perform the job requirements of a patrol officer.R. 1575. As to plaintiffs remaining argument, none of Dr. Lyden's treatment notes support his opinion that plaintiffs use of prescription medication would interfere with his ability to work. As discussed above, Dr. Lyden failed to respond to numerous requests for clarification of his opinion. Accordingly, the ALJ's failure to explicitly evaluate this portion of Dr. Lyden's opinion was not error.
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that plaintiffs motion for judgment on the pleadings be DENIED and that defendant's motion for judgment on the pleadings be GRANTED.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. See also Fed. R. Civ. P. 6(a). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Kenneth M. Karas, at the Honorable Charles L. Brieant, Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Karas.