Opinion
20-CV-9136 (MKV)(VF)
07-29-2022
LINDSEY TAYLOR TIPOGRAPH, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
VALERIE FIGUEREDO, United States Magistrate Judge
TO THE HONORABLE MARY KAY VYSKOCIL, United States District Judge
Plaintiff Lindsay Taylor Tipograph seeks judicial review of a final determination by defendant the Commissioner (“Commissioner”) of the Social Security Administration (“SSA”), denying her application for Social Security Disability Insurance (“SSDI”) benefits and Supplemental Security Income (“SSI”) under the Social Security Act. The parties have crossmoved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that Tipograph's motion be DENIED, and the Commissioner's cross-motion be GRANTED.
BACKGROUND
A. Procedural History
On June 29, 2017, Tipograph filed applications for SSDI and SSI benefits, alleging disability beginning on April 1, 2016. R. at 142-43. Tipograph suffers from post-traumatic stress disorder (“PTSD”), anxiety, depression, panic attacks, fear of crowds, insomnia, nightmares, attention-deficit/hyperactivity disorder (“ADHD”), mental and physical slowness, distractibility, forgetfulness, irritability, bulimia, obesity, rule out borderline personality disorder, bipolar disorder, asthma, back disorder with pain, migraine headaches, and a substance abuse disorder in remission since June 2017. R. at 24; Pl.'s Mem. at 2-6, 9. When Tipograph applied for SSDI benefits in 2017, she listed “eating disorder, social anxiety disorder, insomnia, bipolar, PTSD, [and] server [sic] back pain” as the “illnesses, injuries, or conditions that limit [her] ability to work.” R. at 232. Tipograph similarly listed “PTSD, bipolar, anxiety, insomnia, back pain, [and] eating disorder” as her illnesses, injuries, or conditions in her 2017 SSI application. R. at 238. Similar mental and physical conditions appear in Tipograph's medical records through 2017. See, e.g., R. at 377, 381-82, 485, 555, 572-73, 880-82.
Tipograph also filed an application for child's insurance benefits on July 24, 2017. SSA Administrative Record, filed October 14, 2021, ECF No. 15 (“R.”) at 10. The claim was denied on September 25, 2017, after which Tipograph filed a written request for a hearing. Id. The ALJ concluded that Tipograph had not been under a disability before attaining age 22. Id. Tipograph does not challenge the ALJ's determination as to child's insurance benefits here. See Pl.'s Memorandum of Law in Support of the Motion for Judgment on the Pleadings (“Pl.'s Mem.”), ECF No. 18.
On September 25, 2017, the SSA denied Tipograph's application. R. at 144-59. On October 5, 2017, Tipograph requested a hearing before an administrative law judge (“ALJ”). Pl.'s Mem. at 1. A video hearing was held on May 23, 2019. R. at 54-104. On July 3, 2019, the ALJ denied Tipograph's application in a written decision, finding that Tipograph was not disabled under the Act. R. at 19-40. On September 23, 2019, Tipograph requested a review by the SSA Appeals Council, which was denied on September 16, 2020. R. at 1-6, 53-55. On October 30, 2020, after exhausting her administrative remedies, Tipograph filed this action seeking review of the ALJ's decision. Compl., ECF No. 1.
Tipograph's request for a hearing is not included in the administrative record.
On December 13, 2021, Tipograph moved for judgment on the pleadings and submitted a memorandum of law in support of her motion. ECF Nos. 17-18. The Commissioner cross-moved for judgment on the pleadings and submitted a memorandum in support of the motion on April 1, 2022. ECF Nos. 24-25.
B. The Hearing Before the ALJ
The hearing was held before ALJ Sean Teehan in Boston, Massachusetts on May 23, 2019. R. at 57. Tipograph, who was represented by an attorney, appeared via video conference from Manhattan. R. at 57-59. Vocational Expert (“VE”) James F. Conway also participated in the hearing by telephone. R. at 59.
At the time of the hearing, Tipograph was 28 years old and lived with her father in Manhattan. R. at 59, 66, 71. Tipograph received her GED at the age of 18 and completed “one or two” semesters of college, before dropping out; she has no other educational or vocational training. R. at 66.
Tipograph testified that she last worked about two months prior to the hearing, as a babysitter for her neighbor's one-year-old child. R. at 70, 72. Tipograph babysat for the neighbor's child “once in a while” in the evenings while the child slept. R. at 67-68. About a “year or two” prior to the hearing, Tipograph babysat for a family with a five-year-old child for two hours, three days a week. R. 68. In that job, which lasted for about a year, Tipograph picked the child up from school using a car service, walked with the child back to the family's house, and took a car service home, because she was “nervous walking home” alone. R. at 68-69. Prior to those babysitting jobs, Tipograph worked as a part-time assistant for a youth-theatre program for about a year and a half between 2010 and 2012, helping around the office and using the computer. R. at 72-74. Tipograph also worked at a cosmetics store during the holiday season in 2011, but was let go for missing work. R. at 73. Additionally, Tipograph worked at a pizza restaurant for about two weeks in 2013, but was terminated for not being “very effective.” Id. In 2015 and 2016, Tipograph worked at her father's law firm organizing files, for eight hours a day, four days a week. R. at 74-76, 92. After a little under a year, she was terminated for the quality of her work. Id.
The ALJ asked Tipograph why she is unable to work. Tipograph testified that “being around people makes [her] very nervous,” she cannot “concentrate a lot” and tends to “space out,” and she takes “a lot of sick days because leaving the house is very hard for [her].” R. at 76-77. According to Tipograph, she has had panic attacks for “about ten years,” which started after she was sexually assaulted at age 13. R. at 77, 90. Tipograph testified that she saw a therapist and psychiatrist and was taking medication for her PTSD to treat panic attacks. Id. Because she gets panic attacks when taking public transportation, Tipograph testified that she takes a car service when she leaves the house. R. at 84. Although her medication was working for “a while,” Tipograph testified that her panic attacks occurred more frequently after she was sexually assaulted for a second time in 2017. R. at 77-78.
The ALJ also asked Tipograph about her depression and attention-deficit disorder (“ADD”), and inquired about the treatment that she had received for those conditions. R. at 78-79. According to Tipograph, “most days[,]” she can “barely get out of bed” and she feels “hopeless a lot of the time.” R. at 78. Tipograph testified to taking medication for depression and ADD and seeing a therapist and psychiatrist. R. at 78-79. The ALJ asked Tipograph about her back pain and allergies, including the medication she takes for her allergies. R. at 80-81. Tipograph testified to having allergies to ragweed, dust mites, grasses, and cats. Id. She takes Benadryl “almost every day” and uses her inhaler about “three or four times” daily. Id. Tipograph's attorney also asked about her binge eating, which stems from increased depression and anxiety, and leads to vomiting and Tipograph becoming “violently ill.” R. at 85-86. Tipograph and her attorney also discussed her migraines, which occur around four times a month and affect her peripheral vision and her sleep. R. at 85-90. Although at the time of the hearing she was sober, Tipograph also testified to past alcohol abuse. R. at 92-94.
As to her level of activity, Tipograph testified that she takes her dog on daily short walks, “clean[s] up” around the house “a little bit,” prepares her own “microwave meals,” takes out the trash, does laundry, and washes the dishes. R. at 82. Tipograph also testified that she had one friend she would see socially, but that friend moved away. R. at 83-34. Until about eight months prior to the hearing, Tipograph had been seeing a vocal coach once a week for singing lessons. R. at 94-95.
After Tipograph's testimony, the ALJ questioned the VE. R. at 95. The ALJ asked the VE to identify Tipograph's past work and the VE noted that Tipograph had worked as a receptionist, general office clerk, and babysitter. R. at 96-97. The ALJ inquired about the employability of an individual with Tipograph's vocational profile who could: lift and carry 20 pounds occasionally, ten pounds frequently; sit for six hours out of an eight-hour workday; stand and/or walk for six hours out of an eight-hour workday; occasionally climb stairs, ramps, ropes, ladders, or scaffolds; frequently balance and stoop; occasionally crouch, kneel, and crawl; understand and carry out instructions for simple, routine tasks; maintain concentration, persistence, and pace for the performance of simple, routine tasks for two-hour increments over an eight-hour workday over a 40-hour workweek; occasionally engage in superficial interaction with coworkers and supervisors; deal with minor changes in the workplace; and could not perform work dealing with the broad general public. R. at 98. The VE testified that such a person could not perform Tipograph's past work, but could perform the occupations of merchandise marker, cleaner/housekeeper, or electrical accessory assembler. R. at 98-99. The ALJ then asked the VE what jobs would be available if he further limited the individual's ability to consistently be punctual; sustain ordinary routine without supervision; work in coordination with or near others without being distracted; complete a workday without interruptions from psychologically-based symptoms; perform at a consistent pace without rest periods of unreasonable length or frequency; interact appropriately with the public, travel to unfamiliar places; and use public transportation. R. at 100. The hypothetical individual would also have moderate-to-marked limitations in: maintaining attention and concentration for extended periods of time; getting along with co-workers; and responding appropriately to workplace changes. Additionally, the individual would be absent from work more than three times a month. The VE testified that there would be no work for that individual and that “those limitations [were] quite severe.” R. at 100.
In response to questioning by Tipograph's attorney, the VE testified that the tolerance for absenteeism for new, unskilled employees would be one day a month, at which point the individual would be warned, suspended, and then fired if the absenteeism were ongoing. R. at 102. The VE also testified to two additional scenarios where an individual would not be able to find work: (1) an individual that was unable to maintain attention and concentration from one-third to two-thirds of the day; and (2) an individual with a moderate-to-marked limitation in accepting instructions and responding appropriately to criticism from supervisors. R. at 10203. Lastly, the VE testified that anything above 15 percent, or nine minutes per hour, of off-task time during the workday would not be acceptable to employers. R. at 103.
C. Medical Evidence
In her memorandum, Tipograph provides a summary of the medical evidence contained in the administrative record. See Pl.'s Mem. at 2-15. In response, the Commissioner adopted Tipograph's recitation of the relevant facts and underlying proceedings. See Def.'s Memorandum of Law in Support of the Cross-Motion for Judgment on the Pleadings (“Def.'s Mem.”) at 2, ECF No. 25. The Commissioner also submitted additional or contrary facts, to which Tipograph did not object. Id. at 2-7. Having examined the record, I adopt the parties' summaries as accurate and complete for the purposes of the issues raised in this action. See Collado v. Kijakazi, 20-CV-11112 (JLC), 2022 WL 1960612, at *2 (S.D.N.Y. June 6, 2022) (adopting parties' summaries of medical evidence where parties did not dispute recitation of relevant facts). I discuss the medical evidence below to the extent it is necessary to address an argument raised by the parties.
D. Medical Opinion Evidence
1. Andrea Schneer, Licensed Clinical Social Worker (L.C.S.W.) - Treating Therapist
Tipograph saw Andrea Schneer, a licensed clinical social worker, once a week for therapy from July 2015 to April 2019. R. at 834. In Schneer's psychiatric/psychological impairment questionnaire from April 27, 2019, Schneer described Tipograph as having a severe trauma history (including two sexual assaults and the death of her mother) and suffering from depression, migraines, fatigue, and emotionally excessive eating. R. at 834-36, 838. Schneer also described that Tipograph had been employed part-time at a law firm but was unable to handle the social interactions. R. at 836.
Schneer determined that Tipograph had marked limitations in her ability to: work in coordination with or near others without being distracted; complete a workday without interruptions from psychological symptoms; perform at a consistent pace without rest periods of unreasonable length or frequency; interact appropriately with the public; accept instructions and respond appropriately to criticism; and make plans independently. R. at 837. In addition, Schneer noted that Tipograph's “isolation, in addition to self consciousness about her weight, social anxiety, fear of panic attacks may also be related to PTSD-related [symptoms].” R. at 838. Schneer estimated that Tipograph would be absent from work two-to-three times a month due to her impairments. R. at 838.
2. Dr. Kenneth Alper - Treating Psychiatrist
Dr. Kenneth Alper saw Tipograph approximately every 2 months from July 2017 to March 2019. R. at 840. In Dr. Alper's psychiatric/psychological impairment questionnaire from May 2, 2019, Dr. Alper diagnosed Tipograph with major depression, panic disorder, eating disorder, and PTSD. R. at 840. Dr. Alper also noted that Tipograph had twice been sexually assaulted, at age 13 and 26. Id. Tipograph was hospitalized in April 2016 for two weeks for psychiatric symptoms and was in a residential-treatment program for an eating disorder for eight months in 2012. Id. Dr. Alper noted that Tipograph's symptoms were expected to last at least 12 months and that Tipograph is not a malingerer. R. at 841. Dr. Alper based his diagnoses and assessment on signs and symptoms of: depressed mood, persistent or generalized anxiety, irritable affect, feelings of guilt or worthlessness, hopelessness, past suicide attempt, difficulty thinking or concentrating, intrusive recollections of a traumatic experience, recurrent panic attacks, pervasive loss of interests, appetite disturbances and weight change, decreased energy, deeply ingrained maladaptive patterns of behavior, social withdrawal or isolation, excessive sleep, agoraphobia, severe anxiety and depression, and a severe eating disorder. R. at 841-42. Dr. Alper also found that Tipograph's frequent panic attacks and agoraphobia, in a work or work-like setting, caused her to withdraw and/or experience an exacerbation of her symptoms. R. at 842.
Dr. Alper determined that Tipograph had marked limitations in: performing activities within a schedule and being punctual; sustaining an ordinary routine; working in coordination with others; completing a workday without interruptions from psychological symptoms; performing at a consistent pace without rest periods of unreasonable length or frequency; interacting appropriately with the public; and setting realistic goals. R. at 843. While Dr. Alper's and Schneer's indications of limitations overlapped, particularly in the categories of “concentration and persistence” and “understanding and memory,” they had different assessments of Tipograph's limitations with regards to “social interactions” and “adaptation.” Compare R. at 843, with R. at 837. Dr. Alper estimated that Tipograph would be absent from work more than three times per month due to her impairments. R. at 844.
3. Dr. David Kreditor - Treating Psychiatrist
Dr. Kreditor treated Tipograph in 2017 and provided his treatment records for a period of about 6 months. R. at 882-88. In the psychiatric record, Dr. Kreditor noted that Tipograph has been depressed all of her life, suffers from panic attacks, is afraid of big groups, has persistent anxiety, and experiences depressive mood swings. R. at 880. Dr. Kreditor diagnosed Tipograph with “panic disorder with agoraphobia,” generalized anxiety disorder, bulimia, and “dysthymic” disorder. R. at 882. Dr. Kreditor found that a “fast, swift and full recovery” was unlikely and that Tipograph was “disabled” and “unable to work.” Id.
4. Dr. Arlene Broska - Psychological Consultative Examiner
Dr. Broska examined Tipograph on September 5, 2017. R. at 386. Dr. Broska noted that Tipograph's thinking was coherent and goal directed with no evidence of hallucinations, delusions, or paranoia. R. at 387. She could maintain attention and concentration throughout the evaluation, and her manner of relating, social skills, and overall presentation were “adequate.” Id. Dr. Broska found that Tipograph's memory skills were intact, her cognitive functioning was in the average range, and her insight and judgment were fair. R. at 388. Tipograph reported to Dr. Broska that she was feeling anxious and sad. R. 387. Dr. Broska diagnosed Tipograph with unspecified bipolar and related disorder, PTSD, and alcohol use in early remission. R. at 388. Dr. Broska found that “the results of the examination appear to be consistent with psychiatric problems and a history of substance abuse, but in itself, this does not appear to be significant enough to interfere with claimant's ability to function on a daily basis.” Id.
5. Dr. Ram Ravi - Medical Consultative Examiner
Dr. Ravi examined Tipograph on September 5, 2017. R. at 391. Dr. Ravi evaluated Tipograph's left foot fracture and asthma. Id. Dr. Ravi noted that Tipograph's triggers for her asthma included smoke and dust. Id. In the medical source statement, Dr. Ravi concluded that Tipograph had no limitations sitting or standing, and moderate limitations in bending, pushing, pulling, lifting, and carrying. R. at 393. Dr. Ravi suggested that Tipograph avoid squatting due to the left foot fracture, and avoid smoke, dust, and respiratory triggers because of her asthma. Id. Dr. Ravi noted that Tipograph's asthma was “stable” and she was “asymptomatic” at the time. R. at 391.
6. Dr. O. Fassler - State Psychological Consultant
Dr. Fassler is a state psychological consultant who prepared a report on September 14, 2017, without examining Tipograph, following Tipograph's initial claim for disability on June 29, 2017. R. at 106, 118. Dr. Fassler found Tipograph to have severe medically determinable impairments, including obesity, anxiety and obsessive-compulsive disorders, and depressive, bipolar and related disorders. R. at 110. Dr. Fassler found Tipograph to not be disabled. R. at 118. Dr. Fassler opined that Tipograph's “medically determinable impairments could have reasonably been expected to produce the alleged symptoms,” but Tipograph's “statements concerning the intensity, persistence and limiting effects of these symptoms are generally not consistent with the evidence of record.” R. at 112. Dr. Fassler did not find that Tipograph had any marked limitations in sustained concentration or persistence, social interaction, or adaptation. R. at 115-16.
DISCUSSION
A. Legal Standards
1. Judicial Review of the Commissioner's Decision
An individual may obtain judicial review of a final decision of the Commissioner “in the district court of the United States for the judicial district in which the plaintiff resides.” 42 U.S.C. § 405(g). A court reviewing a final decision by the Commissioner “is limited to determining whether the [Commissioner's] conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam) (citations and internal quotation marks omitted); accord Greek v. Colvin, 802 F.3d 370, 374-75 (2d Cir. 2015) (per curiam); see generally 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive[.]”).
Substantial evidence is “more than a mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)); accord Greek, 802 F.3d at 374-75; Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008). “It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (citation and internal quotation marks omitted). “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations . . . [a]nd whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high.” Id. at 1154. In weighing whether substantial evidence exists to support the Commissioner's decision, “the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Selian, 708 F.3d at 417 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)).
The substantial-evidence standard is a “very deferential standard of review.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012). The Court “must be careful not to substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result upon a de novo review.” DeJesus v. Astrue, 762 F.Supp.2d 673, 683 (S.D.N.Y. 2011) (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)) (internal quotation marks and alterations omitted). “[O]nce an ALJ finds facts, [a court] can reject those facts ‘only if a reasonable factfinder would have to conclude otherwise.'” Brault, 683 F.3d at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)) (emphasis omitted). “Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam) (citation and internal quotation marks omitted); see also Johnson v. Astrue, 563 F.Supp.2d 444, 454 (S.D.N.Y. 2008).
2. Commissioner's Determination of Disability
The Social Security Act defines the term “disability” as the “inability 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); see id. § 1382c(a)(3)(A). Physical or mental impairments must 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. §§ 423(d)(2)(A), 1382c(a)(3)(B). In assessing a claimant's impairments and determining whether they meet the statutory definition of disability, the Commissioner “must make a thorough inquiry into the claimant's condition and must be mindful that ‘the Social Security Act is a remedial statute, to be broadly construed and liberally applied.'” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam) (quoting Gold v. Sec'y of H.E.W., 463 F.2d 38, 41 (2d Cir. 1972)). The Commissioner is required to examine: “(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience.” Mongeur, 722 F.2d at 1037 (citations omitted); accord Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (per curiam); Craig v. Comm'r of Soc. Sec., 218 F.Supp.3d 249, 260 (S.D.N.Y. 2016).
Five-Step Inquiry
“The Social Security Administration has outlined a ‘five-step, sequential evaluation process' to determine whether a claimant is disabled[.]” Estrella v. Berryhill, 925 F.3d 90, 94 (2d Cir. 2019) (citations omitted); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). First, the Commissioner must determine whether the claimant is currently engaged in any “substantial gainful activity.” Id. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Second, if the claimant is unemployed, the Commissioner must decide if the claimant has a “severe medically determinable physical or mental impairment,” id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii), which is an impairment or combination of impairments that “significantly limits [the claimant's] physical or mental ability to do basic work activities,” id. §§ 404.1520(c), 416.920(c). Third, if the claimant has such an impairment, the Commissioner considers whether the medical severity of the impairment “meets or equals” a listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. See id. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d). If so, the claimant is considered disabled. Id.
If the claimant alleges a mental impairment, the Commissioner must apply a “special technique” to determine the severity of the claimant's impairment at step two, and to determine whether the impairment satisfies Social Security regulations at step three. See 20 C.F.R §§ 404.1520a, 416.920a; see also Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). “If the claimant is found to have a ‘medically determinable mental impairment,' the [Commissioner] must ‘specify the symptoms, signs, and laboratory findings that substantiate the presence of the impairment(s),' then ‘rate the degree of functional limitation resulting from the impairment(s) in accordance with paragraph (c) of [Sections 404.1520a, 416.920a],' which specifies four broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence or pace; and (4) episodes of decompensation.” Velasquez v. Kijakazi, No. 19-CV-9303 (DF), 2021 WL 4392986, at *18 (S.D.N.Y. Sept. 24, 2021) (quoting 20 C.F.R. §§ 404.1520a(b), (c)(3); Id. §§ 416.920a(b), (c)(3)). “The functional limitations for these first three areas are rated on a five-point scale of none, mild, moderate, marked, or extreme, and the limitation in the fourth area (episodes of decompensation) is rated on a four-point scaled of none, one or two, three, or four or more.” Id. (internal quotations and alterations omitted).
Fourth, if the claimant's impairment does not meet or equal a listed impairment, then the Commissioner continues to the fourth step and determines whether the claimant has the residual functional capacity (“RFC”) to perform his or her past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant is able to do such work, he or she is not disabled. Id. Finally, if the claimant is unable to perform past relevant work, the Commissioner must decide if the claimant's RFC, in addition to his or her age, education, and work experience, permits the claimant to do other work. Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant cannot perform other work, he or she will be deemed disabled. Id.
The claimant has the burden at the first four steps. Burgess, 537 F.3d at 128. If the claimant is successful, the burden shifts to the Commissioner at the fifth and final step, where the Commissioner must establish that the claimant has the ability to perform some work in the national economy. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam).
Evaluation of Medical Opinion Evidence
“Regardless of its source, the ALJ must evaluate every medical opinion in determining whether a claimant is disabled under the [Social Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. §§ 404.1527(d), 416.927(d)) (internal quotation marks omitted). For SSI and SSDI applications filed before March 27, 2017, the SSA's regulations set forth the “treating physician rule,” which required an ALJ to give more weight to the opinions of physicians with the most significant relationship with the claimant. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(d)(2); see also Taylor v. Barnhart, 117 Fed.Appx. 139, 140 (2d Cir. 2004). Under the treating physician rule, an ALJ was required to “give good reasons,” 20 C.F.R. § 404.1527(c)(2), if she determined that a treating physician's opinion was not entitled to “controlling weight,” or at least “more weight,” than the opinions of non-treating and non-examining sources. Gonzalez v. Apfel, 113 F.Supp.2d 580, 58889 (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 for applications filed on or after March 27, 2017 (such as Tipograph's application in this case). See Revisions to the Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844, 5869-70, 2017 WL 168819 (Jan. 18, 2017). “In implementing new regulations, the SSA has apparently sought to move away from a perceived hierarchy of medical sources.” Velasquez, 2021 WL 4392986, at *19 (citing 82 Fed.Reg. 5844). The new regulations state 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. §§ 404.1520c(a), 416.920c(a); see also Young v. Kijakazi, 20-CV-03604 (SDA), 2021 WL 4148733, at *9 (S.D.N.Y. Sept. 13, 2021). 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. §§ 404.1520c(a)-(c), 416.920c(a)-(c).
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).
Notwithstanding the requirement to “consider” all of these factors, the ALJ's duty to articulate a rationale for each factor varies. 20 C.F.R. §§ 404.1520c(a)-(b), 416.1520c(a)-(b). Under the new regulations, the ALJ must “explain,” in all cases, “how [she] considered” both the supportability and consistency factors, as they are “the most important factors.” Id. §§ 404.1520c(b)(2), 416.920c(b)(2); see also 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” that formed the foundation of the treating physician rule). With respect to the supportability factor, “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-CV-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)), report and recommendation adopted, 2021 WL 2801138 (S.D.N.Y. July 6, 2021); see Rivera v. Comm'r of the Soc. Sec. Admin., No. 19-CV-4630 (LJL) (BCM), 2020 WL 8167136, at *16 (S.D.N.Y. Dec. 30, 2020), (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)), report and recommendation adopted, 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021). Consistency, on the other hand, “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 (citing 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2)).
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. §§ 404.1520c(b)(2), 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 she considered those three remaining factors. See id. §§ 404.1520c(b)(3), 416.920c(b)(3); see also Velasquez, 2021 WL 4392986, at *20. 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 [she] considered the medical opinions' and ‘how persuasive [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) (citations omitted). “If the ALJ fails adequately to ‘explain the supportability or consistency factors,' or bases her explanation upon a misreading of the record, remand is required.” Rivera, 2020 WL 8167136, at *14 (quoting Andrew G., 2020 WL 5848776, at *9)).
Courts considering the application of the new regulations have concluded that “the factors are very similar to the analysis under the old [treating physician] rule.” Velasquez, 2021 WL 4392986, at *20 (quoting Dany Z. v. Saul, 531 F.Supp.3d 871, 885 (D. Vt. 2021)); see also Acosta Cuevas v. Comm'r of Soc. Sec., No. 20-CV-502 (AJN) (KHP), 2021 WL 363682, at *9 (S.D.N.Y. Jan. 29, 2021) (collecting cases considering new regulations and concluding that “the essence” of the treating physician rule “remains the same, and the factors to be considered in weighing the various medical opinions in a given claimant's medical history are substantially similar”), report and recommendation adopted, 2022 WL 717612 (S.D.N.Y. Mar. 10, 2022). “This is not surprising considering that, under the old rule, an ALJ had to determine whether a treating physician's opinion was supported by well-accepted medical evidence and not inconsistent with the rest of the record before controlling weight could be assigned.” Acosta Cuevas, 2021 WL 363682, at *9; see also e.g., Andrew G., 2020 WL 5848776, at *5 (noting that “consistency and supportability” were the foundation of the treating physician rule).
Claimant's Credibility
An ALJ's credibility finding as to the claimant's disability is entitled to deference by a reviewing court. Osorio v. Barnhart, No. 04-CV-7515 (DLC), 2006 WL 1464193, at *6 (S.D.N.Y. May 30, 2006). “As with any finding of fact, ‘[i]f the [Commissioner's] findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount a claimant's subjective complaints.'” Id. (quoting Aponte v. Sec'y of Health and Hum. Servs., 728 F.2d 588, 591 (2d Cir. 1984)). Still, an ALJ's finding of credibility “must . . . be set forth with sufficient specificity to permit intelligible plenary review of the record.” Pena v. Astrue, 2008 WL 5111317, at *10 (S.D.N.Y. Dec. 3, 2008) (quoting Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988)) (internal quotation marks omitted). “The ALJ must make this [credibility] determination ‘in light of the objective medical evidence and other evidence regarding the true extent of the alleged symptoms.'” Id. (quoting Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984)).
SSA regulations provide that statements of subjective pain and other symptoms alone cannot establish a disability. Genier, 606 F.3d at 49 (citing 20 C.F.R. § 404.1529(a)). The ALJ must follow a two-step framework for evaluating allegations of pain and other limitations. Id. First, the ALJ considers whether the claimant suffers from a “medically determinable impairment that could reasonably be expected to produce” the symptoms alleged. Id. (citing 20 C.F.R. § 404.1529(b)); see also 20 C.F.R. § 416.929(b). “If the claimant does suffer from such an impairment, at the second step, the ALJ must consider ‘the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence' of record.” Id. (citing 20 C.F.R. § 404.1529(a)); see also 20 C.F.R. § 416.929(a). Among the kinds of evidence that the ALJ must consider (in addition to objective medical evidence) are:
1. The individual's daily activities; 2. [t]he location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. [f]actors that precipitate and aggravate the symptoms; 4. [t]he type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. [t]reatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. [a]ny measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. [a]ny other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.Pena, 2008 WL 5111317, at *11 (citing Social Security Ruling 96-7p, 1996 WL 374186, at *3 (SSA July 2, 1996)).
B. The ALJ's Decision
The ALJ denied Tipograph's application on July 3, 2019. R. at 19. In doing so, the ALJ concluded that Tipograph was not disabled under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act, from April 1, 2016 through July 3, 2019, the date of the decision. R. at 35-36.
Following the five-step test set forth in SSA regulations, the ALJ found at step one that Tipograph met the insured status requirements through June 30, 2017, and had not engaged in “substantial gainful activity since April 1, 2016,” the alleged onset date for disability. R. at 24. At step two, the ALJ found that Tipograph had the following severe impairments: “obesity, asthma, post-traumatic stress disorder, anxiety, depression, [and] substance abuse disorder in remission since June of 2017.” Id. The ALJ also found that Tipograph had the following non-severe impairments: “back disorder with pain and migraine headaches.” Id.
At step three, the ALJ found that Tipograph “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. [§§] 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” R. at 29. The ALJ also specifically analyzed the “paragraph B” criteria of the Listings related to Tipograph's mental impairments. Id. In making the determination as to Tipograph's mental impairments, the ALJ found that she did not suffer from at least one extreme or two marked limitations in the listed mental functional areas. R. at 30. Rather, with regard to the “paragraph B” criteria, the ALJ found that Tipograph had a mild limitation “[i]n understanding, remembering, or applying information,” taking into account that she “has the ability to learn instructions” and is “able to address personal care, attend appointments, care for her pets, go outside unaccompanied, use a computer and follow television programming.” Id. The ALJ also found that Tipograph had: (1) a moderate limitation “[i]n interacting with others,” taking into account that she “has a good relationship with her father and she relates well and cooperatively with her medical providers,” but has “social anxiety and tends to isolate”; (2) a moderate limitation “[w]ith regard to concentrating, persisting, or maintaining pace,” taking into account that she “does not require reminders to address personal care or take her medications”; and (3) a moderate limitation in “adapting or managing oneself,” taking into account that she has “the ability to address personal care” and appeared “neat, clean well-groomed and appropriately dressed” during her mental-status examinations. Id. The ALJ also found that Tipograph did not meet the “paragraph C” criteria for mental impairments, because she is “able to keep appointments, take her pets to the veterinarian, see a vocal coach, and babysit,” and thus she has more than “a minimal capacity to adapt to changes” in her environment “or to demands that are not already part” of her daily life. Id.
Before moving to step four, the ALJ assessed Tipograph's residual functional capacity (“RFC”). R. at 31. The ALJ determined that Tipograph retained the ability to perform light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). The ALJ concluded that Tipograph had the RFC to:
lift/carry twenty pounds occasionally and ten pounds frequently. She is able to sit for six hours out of an eight-hour workday. She can occasionally climb stairs, ramps, ropes, ladders, and scaffolds. She can occasionally crouch, kneel, and crawl. She could frequently balance and stoop. She would have to avoid concentrated exposure to pulmonary irritants such as dust, fumes, gases, and odors. She would be able to understand and carry out instructions for simple routine tasks. She would be able to maintain concentration, persistence and pace for the performance of simple routine tasks for two hour increments over an eight-hour workday over a forty hour workweek. She would occasionally be able to have superficial interaction with coworkers and supervisors and would be unable to perform tandem work. She would be unable to perform work dealing with the broad, general public. She could deal with minor changes in the work place.Id. The ALJ considered Tipograph's description of her impairments and found that although Tipograph's impairments “could reasonably be expected to cause the alleged symptoms,” Tipograph's “statements concerning the intensity, persistence and limiting effects of [her] symptoms [were] not entirely consistent with the medical evidence and other evidence in the record.” R. at 32. More specifically, the ALJ found that Tipograph's statements “about the intensity, persistence, and limiting effects” of her symptoms were “inconsistent.” R. at 31-32.
The ALJ also evaluated the medical opinion evidence in the record. R. at 32-34. His examination included an evaluation of the opinions of treating doctors, consultative examiners, and a state agency psychological consultant. The ALJ did not find the opinions of Schneer, Tipograph's treating L.C.S.W., and Dr. Alper, Tipograph's treating psychiatrist, persuasive. R. at 33. The ALJ found that “[t]heir opinions [were] not consistent with or supported by the medical evidence that shows that with treatment and [medication], the claimant's emotional difficulties have improved.” Id. Specifically, the ALJ noted that Tipograph “[was] able to function well enough to address her personal needs, do babysitting, and recently, about eight months ago, work with a vocal coach to help her with her singing.” Id.
The ALJ was persuaded by the opinion of Dr. Broska, a psychological consultative examiner, who explained that “the results of the claimant's examination appeared to be consistent with psychiatric problems and a history of substance abuse problems,” but that these problems “did not appear to be significant enough to interfere with claimant's ability to function on a daily basis.” Id. Dr. Broska also found that Tipograph did not have more than moderate limitations in her mental functioning. Id.
The ALJ found the opinion of Dr. Fassler, the state agency psychological consultant, to be “very persuasive.” Id. Dr. Fassler found that Tipograph “had no more than a moderate limitation in mental functioning,” which the ALJ found consistent with the “ongoing medical evidence” in the record and Tipograph's “activities of daily living, which support a reasonable level of functioning.” R. at 33-34.
The ALJ did not find the opinion of Dr. Kreditor, a treating psychiatrist, to be persuasive. Dr. Kreditor had “opined” that Tipograph was “disabled and unable to work.” R. at 34. The ALJ found that Dr. Kreditor's opinion “lack[ed] specific mental limitations, function by function limitations” and Dr. Kreditor did “not adequately explain his opinion.” Id. Further, the ALJ found that Dr. Kreditor's opinion was “conclusory in nature” because it provided an opinion, which was “reserved for the Commissioner of Social Security.” Id.
The ALJ found the opinion of Dr. Ravi, a consultative examiner, to be persuasive. R. at 34. Dr. Ravi “opined” that Tipograph “had no limitations to sitting or standing” and “moderate limitations in bending, pushing, pulling, lifting and carrying.” Id. Dr. Ravi found that Tipograph should “avoid smoke, dust, and other respiratory irritants/triggers due to asthma functioning.” Id. The ALJ found Dr. Ravi's assessment to be consistent with Tipograph's RFC, except the ALJ did not find Dr. Ravi's opinion that Tipograph should avoid squatting due to a left foot fracture to be persuasive. Id. In sum, the ALJ found Tipograph's “physical and mental impairments to be severe and limiting.” Id.
At step four, the ALJ concluded that Tipograph was “unable to perform any past relevant work,” including work as a receptionist, general office clerk, and babysitting, which all were semiskilled jobs. R. at 34. Finally, at step five, considering Tipograph's “age, education, work experience, and RFC,” the ALJ concluded that there were “jobs that exist in significant numbers in the national economy that” Tipograph could perform-specifically, the jobs of merchandise marker, cleaner/housekeeper, and electrical assembly. R. at 35. Accordingly, the ALJ determined that “a finding of ‘not disabled' [was] therefore appropriate.” Id.
C. Analysis
Tipograph raises two objections to the Commissioner's decision: (1) the ALJ's determination was not supported by substantial evidence, because the ALJ failed to properly evaluate the medical opinion evidence, and (2) the ALJ failed to properly evaluate Tipograph's subjective statements. See Pl.'s Mem. at 19-33. The Commissioner counters that substantial evidence in the record supports the ALJ's determination, the ALJ gave “meaningful consideration” to the evaluations submitted by Tipograph's treating mental-health professionals, and the ALJ provided record-based reasons for his determination concerning Tipograph's subjective statements. See Def's Mem. at 9-10, 19.
1. Substantial Evidence Supports the Commissioner's Decision
Tipograph argues that the Commissioner's determination denying her SSI and SSDI benefits was not supported by substantial evidence. First, Tipograph contends that the ALJ erred by “disregarding” the opinions of Tipograph's treating mental-health professionals, Dr. Alper and Schneer, Pl.'s Mem. at 21, and that the ALJ did not “articulate” how he considered the consistency and supportability of the medical opinions from those treating specialists. Id. at 25. Neither argument has merit.
In finding the opinions of Dr. Alper and Schneer to be unpersuasive, the ALJ stated that “their opinions [were] not consistent with or supported by the medical evidence,” which showed that “with treatment and [medication],” Tipograph's “emotional difficulties [had] improved.” R. at 33. In that regard, the ALJ noted, specifically, Tipograph's ability to “function well enough to address her personal needs, do babysitting, and . . . work with a vocal coach” about eight months prior to the hearing. Id.
Substantial evidence supports the ALJ's conclusion that Dr. Alper's and Schneer's opinions were unpersuasive. First, in Tipograph's own report of her limitations, from August 23, 2017, Tipograph mentioned “staying in the house” because of “panic attacks,” but noted that she left the house to “walk [her] dog or go to doctors [sic] appointments.” R. at 314, 316, 323. Tipograph also noted that she feeds her pets, takes them to veterinarian appointments, and cleans the kitty litter. R. at 315. Tipograph further reported that she needed no help with personal care, needed no “special help or reminders to take care of [her] personal needs and grooming,” and needed no “help or reminders” taking medicine. R. at 315, 317. Additionally, Tipograph indicated that she prepared her own meals, completed household chores, and shopped online for food, clothing, and makeup. R. at 316-17. Further, in describing her anxiety, Tipograph noted that she was able to travel by herself when she had Xanax with her. R. at 322. While Tipograph's description of her limitations reflects her history of panic attacks, anxiety, and social isolation, her description also reflects, as the ALJ found, that Tipograph is able to function on a daily basis, take care of her personal needs and the needs of her pets, and control her panic attacks with medication.
Moreover, Schneer's treatment notes contain evidence of Tipograph's daily functioning and improvement throughout her therapy sessions-further supporting the ALJ's determination that Tipograph's conditions improved with treatment. For instance, on February 22, 2016, Tipograph mentioned to Schneer that she was spending eight days in Atlanta for a birthday and planned to visit a museum and go to dinner, bars, clubs, and movies. R. at 608. On March 23, 2016, following her trip to Atlanta, Tipograph told Schneer that she “had so much fun” and had talked to her “dad about moving to Atlanta.” R. at 615. On August 25, 2016, Tipograph told Schneer that she had attended a wedding and had fun. R. at 670. On September 19, 2016, Tipograph discussed apartment hunting with Schneer, and Schneer discussed with Tipograph the steps she could take to handle living on her own. R. at 397. On October 20, 2016, Tipograph mentioned to Schneer an interest in party planning, and “mentioned a couple of parties she organized in the past.” R. at 406. Schneer's treatment notes thus illustrate that Tipograph could engage in social interaction and had demonstrated improvement with treatment.
Similarly, Dr. Alper's treatment notes from July 27, 2017, mention that Tipograph's symptoms “seem[ ] to be going OK” and that she is “not as sad.” R. at 864. On August 4, 2017, Dr. Alper noted that Tipograph's mood was “a little bit” improved, but her anxiety was “not so much” improved. R. at 862. At the time, Tipograph was taking medications, including Xanax, for her mental-health conditions. Id. Dr. Alper noted that Tipograph's examination was “unremarkable.” Id. On August 18, 2017, Dr. Alper noted that Tipograph's mood was “mildly” improved, R. at 859, and on October 19, 2017, Tipograph's mood was “very good,” R. at 857. A few weeks later, on November 22, 2017, Tipograph's improvement continued, as she reported to Dr. Alper that she was “good” and “ready to go down on Xanax.” R. at 856. Dr. Alper's notes show that Tipograph's mental-health condition improved over time with medication, further supporting the ALJ's determination that Tipograph's condition improved with treatment and medication. There is no merit to Tipograph's argument that the ALJ erred because the record showed only “some response to treatment” or “transient improvements.” Pl.'s Mem. at 23. To the contrary, entries in the treatment notes of Dr. Alper and Schneer include instances of improvement in Tipograph's condition that spanned a period of several months, supporting the ALJ's determination.
Additionally, the medical record contains the opinions of other physicians, which further support the ALJ's determination that “with treatment and medication,” Tipograph's “emotional difficulties ha[d] improved.” R. at 33. For instance, in his September 5, 2017 report, Dr. Broska noted that Tipograph reported feeling anxious and sad, but her attention and concentration were intact, her recent and remote memory skills were intact, her cognitive functioning was appropriate, her sensorium was clear, her thinking was coherent and goal directed, her intelligibility was fluent, and she was appropriately dressed and well groomed. R. at 386-88. Dr. Alper's treatment records from that time indicate that Tipograph was taking medications for her mental-health conditions. See R. at 857, 859. Additionally, treatment notes from Dr. Kreditor, one of Tipograph's treating psychiatrists, dated January 31, 2017 to June 29, 2017, include a notation that Tipograph was “responsive to Psychotherapy” and that Tipograph was “stable” under the current medication treatment plan, which she was “tolerat[ing] overall well.” R. at 882-87.
Contrary to Tipograph's argument, see Pl.'s Mem. at 25, the ALJ appropriately considered the factors of supportability and consistency in rejecting Dr. Alper's and Schneer's opinions. To be sure, the ALJ did not expressly mention either factor in connection with his discussion of the weight he attributed to Dr. Alper's and Schneer's opinions. But failing to expressly mention both factors does not amount to error where the ALJ's decision reflects that he meaningfully considered the factors in concluding that Dr. Alper's and Schneer's opinions were not persuasive. See Sassone v. Comm'r of Soc. Sec., 165 Fed.Appx. 954, 959 (3d Cir. 2006) (“We do not . . . require an ALJ to use ‘magic words' in his analysis . . . We simply require that the record be developed sufficiently to permit meaningful appellate review.”); see also Rua-Campusano v. Kijakazi, 20-CV-7087 (GBD) (SLC), 2021 WL 7287628, at *13 (S.D.N.Y. Dec. 10, 2021), report and recommendation adopted, 2022 WL 493390 (S.D.N.Y. Feb. 17, 2022).
The ALJ's decision reflects that he considered the supportability and consistency of Dr. Alper's and Schneer's medical opinions when considering the rest of the evidence in the record. With regards to consistency, the ALJ discussed evidence in the record supporting his conclusion that Dr. Alper's and Schneer's opinions were inconsistent with other record evidence-namely that, in contrast to their opinions, “with treatment and medication, [Tipograph's] emotional difficulties have improved.” R. at 33. For instance, the ALJ discussed Dr. Broska's report, which found that Tipograph's “examination appeared to be consistent with psychiatric problems and a history of substance abuse problems,” but that these problems “did not appear to be significant enough to interfere with claimant's ability to function on a daily basis.” R. at 33. The ALJ also noted that “multiple mental health status examinations have been within the normal limits.” R. at 31-33. Further showing inconsistency with Schneer's and Dr. Alper's medical opinions, the ALJ pointed to instances in the record that demonstrated an improvement in Tipograph's condition with treatment and other evidence of her daily functioning, such as babysitting, preparing meals, taking care of her pets, taking singing lessons, and socializing with a friend. R. at 26, 28-30, 32-33. The ALJ's discussion of the evidence in the record shows that the ALJ had considered the consistency of Schneer's and Dr. Alper's opinions when he found them not to be persuasive.
Similarly, evidence in the record indicates that the ALJ considered supportability when finding the opinions of Dr. Alper and Schneer to be unpersuasive. The ALJ discussed in detail Schneer's and Dr. Alper's psychiatric/psychological impairment questionnaires and treatment notes. R. at 26-27. The ALJ specifically noted that in October 2018 and May 2019, Dr. Alper had observed Tipograph's “appearance, behavior, speech, mood and affect, and orientation were all unremarkable,” that there was “no evidence of psychotic symptoms or a thought disorder,” and that “there was no evidence of suicidal ideation.” R. at 27, 33. In determining Tipograph's RFC, the ALJ noted that Tipograph's “treatment for emotional difficulties ha[d] been effective” and “multiple mental status examinations [had] been within normal limits.” R. at 32. When discussing the treatment provided by Dr. Alper and Schneer, the ALJ noted that Tipograph had been “in treatment for a period of time,” and although she had “some mood swings and anxiety-related symptoms,” she was “not suicidal or psychotic,” “her cognitive skills are intact,” and her “mood [was] generally stable with some breakthrough symptoms.” R. at 32. Further, the ALJ cited to Dr. Alper's treatment records to support his conclusion that Tipograph “has made significant progress in her ability to cope with significant stressors in her life.” R. at 33. As such, when the ALJ noted that he found the evidence in the record to “reflect[ ] a history of effective generally routine psychiatric treatment,” R. at 33, his discussion indicates that he considered the supportability of Dr. Alper's and Schneer's opinions in finding them unpersuasive.
Although Tipograph points to evidence in the record that is supportive of, and consistent with, Dr. Alper's and Schneer's opinions, see Pl.'s Mem. at 23-24, it was for the ALJ alone to weigh the conflicting 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's conclusions are supported by substantial evidence, and thus, given the deferential substantial-evidence standard, the determination must be upheld even if other evidence in the record may support a contrary conclusion. See Johnson v. Astrue, 563 F.Supp.2d 444, 454 (S.D.N.Y. 2008) (“If the reviewing court finds substantial evidence to support the Commissioner's final decision, that decision must be upheld, even if substantial evidence supporting the claimant's position also exists.”); see also Bonet ex rel. T.B. v. Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013) (summary order) (“[W]hether there is substantial evidence supporting the [claimant's] view is not the question here; rather, we must decide whether substantial evidence supports the ALJ's decision.”) (emphasis in original).
As to Tipograph's other treating psychiatrist, Dr. Kreditor, it was appropriate for the ALJ to find his medical opinion to be unpersuasive, as it “lack[ed] specific mental limitations, function by function limitations” and lacked an “adequate[ ]” explanation of the basis for his opinion. R. at 34. Dr. Kreditor does not appear to have submitted a psychiatric/psychological impairment questionnaire and he provided only ten pages of treatment notes. R. at 880-88, cf, R. at 734-832 (378 pages of treatment notes from Schneer); R. at 845-78 (34 pages of treatment notes from Dr. Alper). Moreover, although Dr. Kreditor noted that Tipograph is “disabled” and “unable to work,” R. at 882, he did not provide an explanation of how he found Tipograph to have moderate or marked degrees of limitation. Cf, R. at 834-38 (Psychiatric/psychological impairment questionnaire from Schneer detailing degrees of limitation in understanding and memory, concentration and persistence, social interactions, and adaptation, as well as how often Tipograph is likely to be absent from work as a result of these impairments); R. at 840-44 (Psychiatric/psychological impairment questionnaire from Dr. Alper detailing same). Additionally, although Dr. Kreditor described Tipograph's mental-status evaluation, symptoms, complaints, and history of present illness, he did not explain how he came to the conclusion that Tipograph was “unable to work.” R. at 882; cf. R. at 834-38, 840-44. The record thus supports the ALJ's conclusion that Dr. Kreditor's opinion lacked an adequate explanation to support it.
Moreover, the ALJ also acted reasonably in finding the report of the psychological consultative examiner, Dr. Broska, to be persuasive. Dr. Broska's opinion was in line with the treatment notes and questionnaire responses provided by Dr. Alper and Schneer. Dr. Broska evaluated Tipograph in person on September 5, 2017. R. at 386. Dr. Broska's report discusses Tipograph's current functioning, finding that Tipograph had “difficulty falling asleep” and “mostly feels down.” However, it also notes that at “other times [Tipograph] is up and very active,” working on “arts and crafts” and “tak[ing] the dog out.” Id. This description from Dr. Broska is in line with treatment notes from Schneer describing Tipograph's activities, R. at 397, 608, 615, 406, and Dr. Alper's notes that describing Tipograph's improved mood, R. at 854, 856-57, 864. Dr. Broska also considered Tipograph's history of PTSD, sexual assault, and fear of being “outside and around a lot of people.” R. at 387.
Additionally, Dr. Broska conducted a mental-status examination and found Tipograph's demeanor to be cooperative and that her “manner of relating, social skills, and overall presentation were adequate.” Id. This, too, was consistent with notes from Dr. Alper indicating “unremarkable” mental-status examinations. R. at 862. Dr. Broska concluded that Tipograph had “psychiatric problems and a history of substance abuse problems” but reasoned that those problems were not “significant enough to interfere with claimant's ability to function on a daily basis,” and resulted in only “moderate limitations in mental functioning.” R. at 33, 388. Indeed, Tipograph self-reported that she could take care for her personal needs and those of her pets. R. at 314-17, 323. And Tipograph's treating mental-health professionals noted several instances of Tipograph's improved mood, unremarkable mental-status examinations, ability to function, and response to treatment. R. at 406, 608, 615 (Schneer's treatment notes); R. at 854, 856-57, 864 (Dr. Alper's treatment notes); R. aat 882-87 (Dr. Kreditor's treatment notes). As such, and contrary to Tipograph's argument, Pl.'s Mem. at 27, the ALJ did not err in finding Dr. Broska's report persuasive. Moreover, Tipograph's argument that the Commissioner should have provided Dr. Broska with Tipograph's treatment records to give Dr. Broska “necessary background information about her conditions” is without merit. Pl.'s Mem. at 28. The requirement that the Commissioner provide a consultative examiner with “any necessary background information,” see 20 C.F.R. §§ 404.1517, 416.917, does not “require that every consulting physician be provided with a claimant's medical records,” Quintana v. Berryhill, No. 18-CV-00561 (KHP), 2019 WL 1254663, at *16 (S.D.N.Y. Mar. 19, 2019). See Marquez v. Colvin, No. 12-CV-6819 (PKC), 2013 WL 5568718, at *13 (S.D.N.Y. Oct. 9, 2013) (“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”).
Tipograph also contends that it was erroneous for the ALJ to find the opinion of Dr. Fassler, the non-examining state consultant, to be “very persuasive.” Pl.'s Mem. at 29; R. at 33-34. Dr. Fassler found that Tipograph “had no more than a moderate limitation in mental functioning . . . consistent with the ongoing medical evidence of record as well as the claimant's activities of daily living, which support a reasonable level of functioning.” R. at 33-34. That conclusion, however, is in line with other medical evidence in the record, including the opinion of Dr. Broska, who also concluded that Tipograph only had “a moderate limitation in mental functioning.” R. at 388. And, as discussed, Dr. Alper and Schneer documented numerous instances of Tipograph's ability to engage in activities of daily living. See R. at 406, 608, 615, 670, 857, 859, 862, 864. Dr. Fassler explained his determination in conjunction with a review of the opinions of Dr. Alper and Dr. Broska. R. at 116. Furthermore, the record refutes Tipograph's contention that Dr. Fassler received an “empty medical record.” Pl.'s Mem. at 29. As Dr. Fassler's report notes, he received Dr. Broska's report, Dr. Alper's August 2017 evaluation, and Tipograph's April 2016 hospitalization records. See R. at 106-112. Additionally, Dr. Fassler implicitly acknowledged reviewing those documents when he noted in his report that the “medication treatment, treatment other than medication, and longitudinal treatment records” were most informative in his assessment of the “consistency of [Tipograph's] statements about [her] symptom related limitations with all the evidence in the file.” R. at 111-12. That Dr. Fassler reviewed and relied on a report from Dr. Alper that predated Dr. Alper's 2019 psychiatric/psychological impairment questionnaire is of no moment because Dr. Alper's 2019 report/evaluation was consistent with his 2017 report/evaluation. See, e.g., Camille v. Colvin, 652 Fed.Appx. 25, 28 n.4 (2d Cir. 2016) (summary order). As such, it was not unreasonable for the ALJ to find “very persuasive” Dr. Fassler's conclusion that Tipograph's symptoms are generally not consistent with the other evidence in the record, taking into consideration Dr. Alper and Schneer's treatment notes and Dr. Broska's report.
As Tipograph has not shown that the ALJ's decision was unsupported by substantial evidence, I find no basis to recommend a remand on this ground.
2. Substantial Evidence Supports the ALJ's Evaluation of Tipograph's Subjective Statements.
The ALJ concluded that Tipograph had “allege[d] that her impairments adversely impact[ed] her ability to work to a considerably more restricted degree than what [was] established by the medical evidence.” R. at 31. The ALJ explained that Tipograph's “limitations [were] self imposed restrictions that [were] not fully supported by the medical evidence and [were] inconsistent with some of her own actions.” Id. The ALJ then discussed evidence in Tipograph's medical records that showed Tipograph's ability “to perform activities of daily living.” R. at 32. Ultimately, the ALJ determined that Tipograph's “medically determinable impairments could reasonably be expected to cause the alleged symptoms” but found that her “statements concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record.” Id. Tipograph argues that the ALJ's “brief evaluation” of her statements about her mental conditions is not supported by “substantial evidence,” and erroneously focuse[d] on her “minimal activities and selected normal mental status examinations.” Pl.'s Mem. at 31. Tipograph's arguments are meritless.
The ALJ properly considered and weighed the evidence about the combined effects of Tipograph's impairments in assessing her testimony about her symptoms. The ALJ also appropriately accounted for Tipograph's credible symptoms in his RFC finding that Tipograph could perform simple, routine work. Contrary to Tipograph's argument, Pl.'s Mem. at 31-32, the ALJ provided more than a “boilerplate” rejection of her statements. Instead, the ALJ's decision, as previously discussed, see supra Section E, includes a thorough review of information provided by Tipograph in her testimony and function report, the treatment records and questionnaires provided by Tipograph's treating mental-health professionals, and the medical opinions from other observing and non-observing sources. Additionally, the ALJ discussed in detail Tipograph's testimony from the hearing, including Tipograph's work experience, mental conditions, history of therapy, and daily activities. R. at 28-29. The ALJ thus provided a discussion of the various factors-including Tipograph's treatment records and activities-that bore directly on her credibility about her symptoms and conditions.
The ALJ described how Tipograph's “ability to perform activities of daily living remain[ed] reasonably intact.” For instance, Tipograph was “able to address personal care,” “keep medical appointments,” and care for her two pets, including “walk[ing] her dog, clean[ing] the cat's litterbox, and “tak[ing] them to the veterinarian.” R. at 32. The ALJ further described how Tipograph can “follow a medication regimen without reminders,” “watch[ ] television and YouTube,” “order[ ] things on-line,” “count money,” “follow written and spoken instructions well,” and function well enough to take “voice lessons” and “babysit.” Id. Additionally, the ALJ thoroughly discussed the medical evidence provided by Tipograph's treating mental-health professionals, the consultative examiners, and the state psychological consultant. The ALJ noted that “multiple mental health status examinations have been within the normal limits,” R. at 31-33, and pointed to instances in the record that demonstrated an improvement in Tipograph's condition with treatment. R. at 32-33. The ALJ thus sufficiently explained his reasons for finding Tipograph's statements about her limitations not credible, and his conclusion was supported by substantial evidence in the record. Given that the ALJ did consider factors including the frequency and intensity of symptoms, medication, and treatment, the court should not “second-guess the credibility finding . . . where the ALJ identified specific record-based reasons for his ruling.” Stanton v. Astrue, 370 Fed.Appx. 231, 234 (2d Cir. 2010).
Further, the ALJ did not completely disregard Tipograph's statements, and he limited his RFC determination appropriately in response to the record evidence, which, as already discussed, showed that Tipograph's symptoms had improved with therapy and medication. R. at 32. The ALJ found that Tipograph did have some limitations in performing tasks, and impairments that “more than minimally impair her ability to perform work-related activities.” Id. However, the ALJ did not find Tipograph's impairments to be “so limiting” as to prevent her from performing some level of work. Id. Instead, the ALJ appropriately tailored his recommendation to account for Tipograph's inability to “perform tandem work” or “work dealing with the broad, general public.” R. at 31.
In short, the ALJ's determination about Tipograph's credibility and his finding that she could perform simple, routine work are supported by substantial evidence.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff's motion for judgment on the pleadings be DENIED and that the Commissioner's cross-motion for judgment on the pleadings be GRANTED.
NOTICE
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Mary Kay Vyskocil at 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Vyskocil. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).