Opinion
1:20-cv-08079-JMF-GRJ
02-02-2022
TAMI ANN A., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
AMENDED REPORT & RECOMMENDATION
The amended report and recommendation has been filed to correct a typographical error in the conclusion of the report and recommendation (Docket No. 26), which incorrectly granted Plaintiff's motion and denied the Commissioner's motion.
The Clerk is directed to vacate the original report and recommendation. Docket No. 26. The Amended Report and Recommendation replaces Docket No. 26.
Gary R. Jones United States Magistrate Judge
In June of 2017, Plaintiff Tami Ann A. applied for Disability Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the applications. Plaintiff, represented by Olinsky Law Group, Howard D. Olinsky, Esq., of counsel, commenced this action seeking judicial review of the Commissioner's denial of benefits under 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
Plaintiff's name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
This case was referred to the undersigned for a Report and Recommendation on December 29, 2021. Presently pending are the parties' motions for Judgment on the Pleadings under Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket No. 17, 23). For the following reasons, Plaintiff's motion is due to be denied, the Commissioner's motion is due to be granted, and this case dismissed.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on June 12, 2017, alleging disability beginning May 27, 2016. (T at 13, 194, 211). Plaintiff's application was denied initially and on reconsideration. She requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on March 15, 2019, before ALJ Laura Michalec Olszewski. (T at 27). Plaintiff appeared with an attorney and testified. (T at 32-54, 55-56). The ALJ also received testimony from Esperanza Distefano, a vocational expert. (T at 54-74).
Citations to “T” refer to the administrative record transcript at Docket No. 16.
B. ALJ's Decision
On April 23, 2019, the ALJ issued a decision denying the application for benefits. (T at 10-25). The ALJ found that Plaintiff had not engaged in substantial gainful activity since May 27, 2016 (the alleged onset date) and met the insured status requirements of the Social Security Act through December 31, 2021 (the date last insured). (T at 15). The ALJ concluded that Plaintiff's rheumatoid arthritis, obesity, and anemia were severe impairments as defined under the Act. (T at 15). However, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equals one of the listed impairments in 20 CFR Part 403, Subpart P, Appendix 1. (T at 16).
The ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform light work, as defined in 20 CFR 404.1567 (b) and 416.967 (b), with the following limitations: she can lift/carry 20 pounds occasionally and 10 pounds frequently; sit for 6 hours in an 8-hour workday and stand/walk for 6 hours in an 8-hour workday; occasionally climb ramps and stairs, but never climb ladders or scaffolds; occasionally balance and stoop, but never kneel, crouch, or crawl; frequently handle, finger, and feel; and sit or stand intermittently, while remaining on task during transition. (T at 16).
The ALJ concluded that Plaintiff could not perform her past relevant work as a toddler teacher. (T at 20). However, considering Plaintiff's age (48 on the alleged onset date), education (at least high school, able to communicate in English), work experience, and RFC, the ALJ determined that there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 21). As such, the ALJ found that Plaintiff had not been under a disability, as defined under the Social Security Act, and was not entitled to benefits for the period between May 27, 2016 (the alleged onset date) and April 26, 2019 (the date of the ALJ's decision). (T at 28). On July 27, 2020, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. (T at 1-6).
C. Procedural History
Plaintiff commenced this action, by and through her counsel, by filing a Complaint on September 30, 2020. (Docket No. 1). On July 12, 2021, Plaintiff filed a motion for judgment on the pleadings, supported by a memorandum of law. (Docket No. 17, 18). The Commissioner filed a cross-motion for judgment on the pleadings, supported by a memorandum of law, on September 10, 2021. (Docket No. 23, 24). On October 1, 2021, Plaintiff submitted a reply in further support of her motion and in opposition to the Commissioner's cross-motion. (Docket No. 25). The matter was assigned to the undersigned for a Report and Recommendation on December 29, 2021.
II. APPLICABLE LAW
A. Standard of Review
“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). The court's review is limited to “determin[ing] 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) (per curiam).
The reviewing court defers to the Commissioner's factual findings, which are considered conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g). “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. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (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 quotations omitted).
“When there are gaps in the administrative record or the ALJ has applied an improper legal standard, ” or when the ALJ's rationale is unclear, remand “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).
B. Five-Step Sequential Evaluation Process
Under the Social Security Act, a claimant is disabled if he or she lacks the ability “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 12 months ....” 42 U.S.C. § 423(d)(1)(A).
A claimant's eligibility for disability benefits is evaluated pursuant to a five-step sequential analysis:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a “severe impairment, ” the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform.See Rolon v. Commissioner of Soc. Sec., 994 F.Supp.2d 496, 503 (S.D.N.Y. 2014); see also 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
The claimant bears the burden of proof as to the first four steps; the burden shifts to the Commissioner at step five. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner determines whether claimant can perform work that exists in significant numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).
III. DISCUSSION
Plaintiff raises one main argument in support of her challenge to the ALJ's decision. Plaintiff contends that the ALJ failed adequately to address the medical opinion evidence.
In January of 2017, the Social Security Administration promulgated new regulations regarding the consideration of medical opinion evidence. The revised regulations apply to claims filed on or after March 27, 2017. See 20 C.F.R. § 404.1520c. Because Plaintiff's application for benefits was filed on June 12, 2017 (T at 194), the new regulations apply here.
The ALJ no longer gives “specific evidentiary weight to medical opinions, ” but rather considers all medical opinions and “evaluate[s] their persuasiveness” based on supportability, consistency, relationship with the claimant, specialization, and other factors. See 20 C.F.R. § 404.1520c (a), (b)(2). The ALJ is required to “articulate how [he or she] considered the medical opinions” and state “how persuasive” he or she finds each opinion, with a specific explanation provided as to the consistency and supportability factors. See 20 C.F.R. § 404.1520c (b)(2).
Consistency is “the extent to which an opinion or finding is consistent with evidence from other medical sources and non-medical sources.” Dany Z. v. Saul, 531 F.Supp.3d 871, 882 (D. Vt. 2021)(citing 20 C.F.R. § 416.920c(c)(2)). The “more consistent a medical opinion” is with “evidence from other medical sources and nonmedical sources, ” the “more persuasive the medical opinion” will be. See 20 C.F.R. § 404.1520c(c)(2).
Supportability is “the extent to which an opinion or finding is supported by relevant objective medical evidence and the medical source's supporting explanations.” Dany Z, 531 F.Supp.3d at 881. “The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520 (c)(1), 416.920c(c)(1).
In the present case, Dr. Roman Marmur, Plaintiff's treating rheumatologist, completed a functional capacity assessment in February of 2019. (T at 428-35). At the time, Dr, Marmur had been treating Plaintiff approximately every three (3) months for more than three (3) years. (T at 428). He diagnosed rheumatoid arthritis and described Plaintiff as experiencing joint pain and stiffness, as well as fatigue. (T at 428).
Dr. Marmur opined that Plaintiff's symptoms were severe enough to interfere with her attention and concentration constantly (over 2/3 of an 8hour day). (T at 431). He believed Plaintiff was incapable of even “low stress” jobs and would need to take unscheduled, unpredictable rest breaks during an 8-hour workday. (T at 431, 432). Dr. Marmur stated that Plaintiff could sit/stand/walk for less than an hour in an 8-hour workday and would need to change position after very short intervals of sitting, standing, or walking. (T at 431). He opined that Plaintiff would need to use a cane or assistive device when engaged in occasional standing or walking and would have significant limitations in doing repetitive reaching, handling, or fingering. (T at 433).
Dr. Marmur opined that Plaintiff could occasionally lift and carry up to 5 pounds, but never more than that. (T at 433). He opined that Plaintiff's impairments were likely to produce “good” days and “bad” days that, on average, he would expect Plaintiff to miss work more than 3 times per month due to her impairments or treatment. (T at 434).
The ALJ found Dr. Marmur's opinion unpersuasive, finding his opinions inconsistent with, and unsupported by, the objective medical record. (T at 20). This Court concludes the ALJ's decision to discount Dr. Marmur's opinion supported by substantial evidence and consistent with applicable law.
The ALJ reasonably found Dr. Marmur's opinion not supported by the objective medical record, including the physician's own treatment notes. (T at 17-20). While the treatment notes document complaints of tenderness and some symptom flares, they generally evidence normal range of motion, no edema, no focal weakness, and no sensory abnormalities. (T at 277-78, 280, 282-87, 333-34, 386, 397, 401, 406-407).
In May of 2016, Dr. Marmur described Plaintiff's rheumatoid arthritis as “well-controlled.” (T at 283). In the fall of 2016, he reported Plaintiff was “doing well, ” with “much improved range of motion and strength in the knee and lower extremities” after physical therapy. (T at 284-85). In February of 2017, Plaintiff reported “no pain, swelling or stiffness in the joint.” (T at 286). On examination, Plaintiff had normal range of motion in the joints with no swelling or tenderness; Dr. Marmur scheduled a follow-up for three (3) months later. (T at 286). In May of 2017, Plaintiff was described as “doing well” and she “denied significant pain, swelling or stiffness in the joints.” (T at 287). A treatment note from August of 2017 shows that Plaintiff had “intermittent tenderness” in her hand and knees, with a “morning stiffness lasting about 10 minutes, ” but Plaintiff otherwise reported “good quality of life.” (T at 333).
The ALJ carefully reviewed the longitudinal treatment record and reasonably concluded that, while some degree of pain and limitation was documented and established, the objective record did not support the highly restrictive assessment of Dr. Marmur. (T at 17-20). See Aguirre v. Saul, No. 20 Civ. 4648 (GWG), 2021 U.S. Dist. LEXIS 203693, at *20-21 (S.D.N.Y. Oct. 22, 2021) (finding that ALJ “properly concluded” that treating physician's medical opinion “lacked support” from his own treatment notes); 20 C.F.R. § 404.1520c(c)(1) (“The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinions . . . will be.”); see generally Sanders v. Comm'r of Soc. Sec., No. 20-cv-2229 (ALC), 2021 U.S. Dist. LEXIS 174598, at *50 (S.D.N.Y. Sep. 14, 2021)(affirming ALJ's decision to discount treating physician's assessment of disabling arthritis symptoms based on, inter alia, treatment notes showing normal motor strength, no tenderness, no significant neurological deficits or muscle weakness).
The ALJ also reasonably found Dr. Marmur's assessment inconsistent with the other medical opinion evidence. (T at 20).
Dr. Gilbert Jenouri performed a consultative examination in July of 2017. (T at 289-292). According to Dr. Jenouri, Plaintiff reported cooking three times per week, cleaning once a week, doing laundry and shopping weekly, and attending to personal hygiene daily. (T at 289). Plaintiff described experiencing sharp pain, with 7/10 intensity, “on occasion and … precipitated with activity.” (T at 289). Dr. Jenouri assessed range of motion limitations in Plaintiff's cervical spine, lumbar spine, shoulders, elbows, wrists, hips, and knees, along with positive straight leg raise testing. (T at 291). He also found, however, full strength in the upper and lower extremities, no muscle atrophy, and no sensory deficit. (T at 291). Dr. Jenouri assessed 4/5 grip strength bilaterally but found Plaintiff's hand and finger dexterity intact. (T at 291).
Dr. Jenouri diagnosed rheumatoid arthritis, joint pain, bilateral knee pain, right ankle pain, and bilateral upper extremity elbow and wrist pain. (T at 291-92). He characterized Plaintiff's prognosis as “[s]table” and assessed mild to moderate limitation with respect to her ability to walk and stand for long periods, as well as regarding her ability to perform bending, stair climbing, lifting, and carrying. (T at 292).
The ALJ found Dr. Jenouri's opinion persuasive, noting that it was consistent with the treatment notes (described above), which documented episodic flares of joint tenderness, but otherwise described symptoms well-controlled with medication and with generally normal clinical examinations. (T at 19). See Grega v. Saul, 816 Fed.Appx. 580, 582-83 (2d Cir. 2020)(“A consultative examiner's opinion may constitute substantial evidence if otherwise supported by the record.”).
Dr. R. Pradhan, a non-examining State Agency review physician, completed an assessment in August of 2017. He concluded that Plaintiff could occasionally lift/carry 20 pounds; frequently lift/carry 10 pounds; stand and/or walk for about 6 hours in an 8-hour workday; sit for about 6 hours in an 8-hour workday; occasionally climb ramps/stairs; occasionally climb ladders/ropes/scaffolds; occasionally stoop, kneel, crouch, and crawl; and perform work without manipulative, visual, communicative, or environmental limitations. (T at 80-81).
The ALJ found Dr. Pradhan's opinion persuasive, noting that it was consistent with the treatment notes, the examination findings, and the assessment of Dr. Jenouri. (T at 20). See Rose v. Berryhill, No. 18-CV-509 (LGS)(SN), 2019 U.S. Dist. LEXIS 18562, at *8 (S.D.N.Y. Feb. 4, 2019)(“[W]hen supported by evidence in the record, the opinion of a nonexamining physician can also constitute substantial evidence.”).
Plaintiff argues that the ALJ should have found Dr. Marmur's opinion more persuasive. She offers an alternative interpretation of the treatment record, cites the length of her treating relationship with Dr. Marmur, and notes that Dr. Marmur's assessment is consistent with her subjective complaints. It is, however, the role of the Commissioner, and not this Court, to resolve conflicts in the evidence. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”). The ALJ may reach a determination that “does not perfectly correspond with any of the opinions of medical sources, ” provided the ALJ's overall assessment is supported by substantial evidence and consistent with applicable law. See Trepanier v. Comm'r of SSA, 752 Fed.Appx. 75, 79 (2d Cir. 2018).
“Substantial evidence is “a very deferential standard of review - even more so than the ‘clearly erroneous' standard." Brault v. SSA, 683 F.3d 443, 447-48 (2d Cir. 2012) (per curiam) (citation omitted). “The substantial evidence standard means once an ALJ finds facts, [a court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Id. at 448 (emphasis in original) (citation and internal quotation marks omitted). “The role of the reviewing court is therefore quite limited and substantial deference is to be afforded the Commissioner's decision.” Johnson v. Astrue, 563 F.Supp.2d 444, 454 (S.D.N.Y. 2008)(citation and internal quotation marks omitted).
Indeed, “[i]f the reviewing court finds substantial evidence to support the Commissioner's final decision, that decision must be upheld, even if substantial evidence supporting the claimant's position also exists.” Id. (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)); see also McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld.”)(citation omitted).
There is no question that Plaintiff suffers from pain and some degree of limitation arising from rheumatoid arthritis and complicated by obesity. The ALJ incorporated several work-related limitations into the RFC determination. (T at 16). However, “disability requires more than mere inability to work without pain.” Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983). “Otherwise, eligibility for disability benefits would take on new meaning.” Id.
Here, the ALJ's assessment of Plaintiff's ability to perform work-related activities despite her pain and limitations is supported by a reasonable reading of the objective record and is consistent with the conclusions of the consultative examiner and State Agency review physician. The Court, therefore, concludes that the ALJ applied the correct legal standards and reached a decision supported by substantial evidence. As such, it is recommended that the Commissioner's motion be granted and that Plaintiff's motion be denied.
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 17) should be DENIED; that the Commissioner's Motion for Judgment on the Pleadings (Docket No. 23) should be GRANTED; and this case should be dismissed.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).