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rejecting argument that ALJ erred in affording "little weight" to treating physician's findings that plaintiff was 100% disabled where such findings were provided in the context of his worker's compensation claim
Summary of this case from Naumov v. Comm'r of Soc. Sec.Opinion
17 Civ. 5515 (CM)(HBP)
07-18-2018
PATRICIA ANNE URBANAK, Plaintiff, v. NANCY A. BERRYHILL, Commissioner of Social Security Defendant.
REPORT AND RECOMMENDATION
:
TO THE HONORABLE COLLEEN MCMAHON, United States District Judge,
I. Introduction
Plaintiff brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits ("DIB"). Plaintiff and the Commissioner have both moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket Item ("D.I.") 15, 22). For the reasons set forth below, I respectfully recommend that the Commissioner's motion be granted and that plaintiff's motion be denied. II. Facts
I recite only those facts relevant to my resolution of the pending motions. The administrative record that the Commissioner filed pursuant to 42 U.S.C. § 405(g) (see Administrative Record, dated Aug. 18, 2017 (D.I. 13) ("Tr.")) more fully sets out plaintiff's social and medical history.
A. Procedural Background
Plaintiff filed an application for DIB on November 13, 2013, alleging that she became disabled on June 12, 2013 due to lower back and left leg pain (Tr. 10, 148-49, 175). Her application for DIB benefits was initially denied on February 20, 2014 and she requested, and was granted, a hearing before an administrative law judge ("ALJ") thereafter (Tr. 10, 84-85). On June 4, 2015, plaintiff and her attorney appeared before ALJ Vincent M. Cascio for a hearing (Tr. 59-68). However, the ALJ adjourned the hearing because approximately 328 pages of plaintiff's medical records had been produced for the first time on the day of the hearing and he needed time to review them (Tr. 59-68). The ALJ held a supplemental hearing on August 25, 2015, during which plaintiff and a vocational expert testified (Tr. 26-58). On November 3, 2015, the ALJ issued a decision finding that plaintiff was not disabled (Tr. 10-20). This decision became the final decision of the Commissioner on May 25, 2017 when the Appeals Council denied plaintiff's request for review (Tr. 1-5). Plaintiff timely commenced this action on July 20, 2017, seeking review of the Commissioner's decision (Complaint, dated July 18, 2017 (D.I. 1)).
B. Social Background
Plaintiff was born on February 13, 1963 and was 50 years old at the time she filed her application for DIB (Tr. 69, 173). She has a ninth grade level of education and never received her GED (Tr. 32, 168). Plaintiff is divorced and lives alone in "a little cottage" with a single floor (Tr. 31).
Plaintiff worked as a Certified Nurse's Aide ("CNA") from October 1997 through February 19, 2013 (Tr. 32). Plaintiff stated in her "Disability Report," dated November 18, 2013, that her position required her to assist patients with eating, dressing, bathing and moving in and out of bed (Tr. 169). She also maintained that her job frequently required her to lift fifty pounds or more and to perform tasks, such as, walking, standing, reaching, climbing, sitting, crawling, crouching, kneeling, stooping, writing and handling large objects (Tr. 169).
Plaintiff injured her back at work when she fell trying to lift a patient out of bed (Tr. 34). After this fall, plaintiff reported significant pain in her lower back and difficulty standing or sitting for long periods of time (Tr. 34-35). Plaintiff was able to perform only "light duty work" after this injury (Tr. 32-35). At the hearing, plaintiff testified that on February 19, 2013 her employer informed her she could no longer work as a CNA, but offered her another position in the nursing home's kitchen (Tr. 32-33). It is unclear from plaintiff's testimony whether she voluntarily declined to accept this position or if she was actually terminated by her employer because she later testified that her employer told her that she was "getting fired because [she was] cursing" at work (Tr. 32-35). Plaintiff returned to her job briefly in August 2013, but testified that, as of the date of the hearing, she was no longer able to work at all due to constant pain in her left leg and lower back (Tr. 34-43).
It is unclear from the record when this fall took place. Plaintiff reports that various workplace injuries took place on February 28, 2012, March 10, 2012 and at some point during the week prior to March 4, 2013 (see Tr. 409-10, 287, 311).
According to the medical records from New York Neurosurgical, plaintiff was suspended and then fired from Elant Nursing Home around February 2013 (see Tr. 311).
The ALJ categorized this as an "unsuccessful work attempt" (Tr. 12).
C. Medical Background
1. Medical Records Pre-Dating the Relevant Time Period
a. The Westchester Medical Practice
Plaintiff visited Terry Alexander, Family Nurse Practitioner ("FNP") and Dr. Cynthia Ligenza of the Westchester Medical Practice five times before the onset of her alleged disability in June 2013. Plaintiff listed Westchester Medical Practice as her Primary Care Physician ("PCP") during this time (Tr. 225, 410).
Plaintiff visited her PCP on February 8, 2012 complaining of lower back pain (Tr. 852). The pain reportedly originated in her left lower back and radiated to her left buttock (Tr. 852). Plaintiff described the pain as dull and noted it was aggravated by lifting, walking and standing (Tr. 852). According to plaintiff, these symptoms began approximately two months prior to this visit and improved with a lidocaine patch (Tr. 852). Dr. Ligenza ordered an x-ray of plaintiff's lower back, which revealed "degenerative changes of the lumbar spine predominantly involving L4-L5" (Tr. 851). Dr. Ligenza also ordered an x-ray of plaintiff's hips, which revealed no abnormalities (Tr. 850).
Lidocaine is a drug having anesthetic, sedative, analgesic, anticonvulsant and cardiac depressant activities and can be used as a local anesthetic, applied topically to the skin and mucous membranes. See Dorland's Illustrated Medical Dictionary, 1034 (32nd ed. 2012) ("Dorland's").
The spinal column is comprised of four regions. The cervical region is located closest to the skull and is made up of vertebrae C1 through C7. Anatomy of the Human Spine, Mayfield Brain & Spine, available at https://www.mayfieldclinic.com/PE-AnatSpine.htm (last visited June 4, 2018). The thoracic region is located below the cervical region and consists of vertebrae T1 through T12. Anatomy of the Human Spine, supra. The lumbar region is located below the thoracic region and is made up of vertebrae LI through L5. Anatomy of the Human Spine, supra. Finally, the sacral region is located below the lumbar region and is made up of vertebrae S1 through S5. Anatomy of the Human Spine, supra. "Degenerative changes" to the lumbar spine refers to osteoarthritis of the spine. Degenerative Changes in the Spine, Mayo Clinic, available at https://www.mayo-clinic.org/diseases _conditions/osteoarthritis/expert-answers/arthritis/faq-20058457 (last visited June 4, 2018). Over time, the soft discs that act as the spine's vertebrae dry out and shrink, which narrows the space between the vertebrae, and can cause pain, weakness and stiffness of the spine. Degenerative Changes in the Spine, supra.
According to a letter dated May 11, 2012 from her PCP, plaintiff returned to her PCP on February 28, 2012, though there are no medical records available of this visit (Tr. 399).
On March 10, 2012, plaintiff visited her PCP and claimed to have injured her back at work while lifting a patient out of a chair (Tr. 200, 409-10). Terry Alexander, FNP, ordered an MRI of plaintiff's lumbar spine (Tr. 286). This MRI was performed on March 14, 2012 and revealed mild multilevel degenerative disc disease most prominent at L4-5, a small broad-based left bilateral disc protrusion at L3-4 with left neural foraminal encroachment, mild impingement of the exiting left L3 nerve root and moderate left neural foraminal narrowing, diffuse disc bulging at L4-5 with bilateral neutral foraminal encroachment and left lateral disc protrusion which encroached the left neural foramen at L5-S1 (Tr. 286). However, there did not appear to be any impingement on the exiting left L5 nerve root and there was no evidence of significant spinal canal stenosis (Tr. 286). Plaintiff applied for, and eventually received, workers' compensation benefits for this injury (Tr. 34, 63-64, 392-98). However, because plaintiff's PCP did not accept workers' compensation benefits, Dr. Ligenza referred plaintiff to Orthopedic Associates of Dutchess County for treatment for these injuries (Tr. 200, 396-99).
Degenerative disc disease is the gradual deterioration and thinning of shock-absorbing intervertebral discs in the spine. See Multilevel Degenerative Disc Disease, Laser Spine Institute, available at https://www.laserspineinstitute.com/back_problems/degenerative_disc_disease/multilevel/ (last visited June 4, 2018) This condition can occur at any level of the spine -- cervical (neck), thoracic (upper back) or lumbar (lower back) -- and may cause a range of symptoms and intensity levels. Multilevel Degenerative Disc Disease, supra. Unless a degenerative disc places pressure upon an adjacent nerve, symptoms remain non-existent or strictly localized. Multilevel Degenerative Disc Disease, supra.
Broad-based implies that 90 to 180 degrees of the spinal disc's circumference is protruding or bulging outside of the vertebral boundaries. Disc Protrusion Overview, Laser Spine Institute, available at https://www.laserspineinstitute.com/back_probiems/disc_protrusion/articles/protrusions/ (last visited June 4, 2018).
Foraminal encroachment means that degeneration of the spinal column has caused an obstruction of the foramina -- open spaces on either side of the vertebrae through which spinal nerves pass on their way to other parts of the body. Foraminal Encroachment, Laser Spine Institute, available at https://www.laserspineinstitute.com/back_problems/foraminal_steno sis/encroachment/ (last visited June 4, 2018). This encroachment can force pressure on the nerves, which causes pain at the site of the impinged nerve that can also travel to the extremities. Foraminal Encroachment, supra.
Over 90% of disc bulging occurs at L4-5. Bulging Disc Overview, Laser Spine Institute, available at https://www.laserspineinstitute.com/back_problems/bulging_disc/ (last visited June 4, 2018). Bulging discs occur when the outer fibrous portion of discs weaken, causing the discs to stretch. Bulging Disc Overview, supra. Bulging discs typically remain asymptomatic, but can cause pain to travel from the lower back to the hips, buttocks, legs and feet. Bulging Disc Overview, supra.
Generally, a disc protrusion must press against the nerve root for there to be significant pain. Bulging Disc Overview, supra.
Spinal stenosis is the narrowing of spaces within the spinal cord, which can put pressure on the nerves that travel through the spine. See Spinal Stenosis Overview, Mayo Clinic, available at https://www.mayoclinic.org/diseases-conditions/spinal-stenosis/symptoms-causes/syc-20352961 (last visited June 4, 2018)
On March 23, 2012, a Workers' Compensation Employer's Report was filed following the injury to plaintiff on March 10, 2012 (Tr. 409-11). According to the report, plaintiff was injured while "lifting a resident . . . and performing morning care" (Tr. 410). Plaintiff reported lower back and left leg pain and had not returned to work as of March 23, 2012 (Tr. 410).
After this referral, plaintiff did not return to her PCP until February 25, 2013 for her annual physical (Tr. 838). At this physical, plaintiff denied having any lower back problems, and the physical examination disclosed no deformity or scoliosis of the thoracic or lumbar spine (Tr. 842). Plaintiff responded "no" when asked if she was in pain during this examination (Tr. 842). The next visit by plaintiff to her PCP was on June 4, 2013, and her physical examination again disclosed no deformity or scoliosis of the thoracic or lumbar spine (Tr. 827-31).
Scoliosis is an appreciable lateral deviation in the normally straight vertical line of the spine. Dorland's at 1681.
b. Dr. William Barrick
On May 24, 2012, plaintiff visited Dr. William Barrick of Orthopedic Associates of Dutchess County. As of that date, plaintiff was still out of work due to her March 10, 2012 injury and plaintiff reported that she was still experiencing pain that was a three to four out of ten in severity (Tr. 396). Plaintiff also had right-sided neck pain, but did not report any numbness or tingling (Tr. 396). Plaintiff had previously been prescribed Flexeril, but claimed to have stopped taking it because it made her nauseous (Tr. 396).
Flexeril, a preparation of cyclobenzaprine hydrochloride, is a common muscle relaxer prescribed to treat pain and stiffness caused by muscle spasms. Dorland's at 717.
The physical exam of plaintiff showed that her gait and station were normal (Tr. 397). She required no assistive de vices or assistance walking and required no assistance removing her sandals (Tr. 397). Plaintiff's lumbar spine exhibited nearly full-extension (Tr. 397). She also had full range of motion in both hips (Tr. 397). Plaintiff exhibited no pain, guarding or tenderness; however, there was mild tenderness in the left groin region (Tr. 397). Dr. Barrick also reviewed plaintiff's March 14, 2012 MRI during his examination (Tr. 397).
Gait and station refers to the manner and style of walking and standing. Dorland's at 753.
At the conclusion of the May 24, 2012 appointment, Dr. Barrick opined that plaintiff was experiencing an exacerbation of her pre-existing degenerative disc disease and the development of new onset lumbar radiculopathy as a result (Tr. 397). Dr. Barrick found that plaintiff had been temporarily totally disabled, but was no longer disabled as of his examination (Tr. 397). Dr. Barrick further found that plaintiff was 25% impaired and could return to work albeit with limitations on lifting and bending (Tr. 394-97). Dr. Barrick also recommended a consultation with pain management services and for plaintiff to consider epidural steroid injections ("ESIs") since physical therapy did not appear to be helping plaintiff with her discomfort (Tr. 397).
Lumbar radiculopathy is any disease of lumbar nerve roots, such as, from disc herniation or compression by a tumor or bony spur, with lower back pain and often an abnormal touch sensation. Dorland's at 1383, 1571. In plaintiff's case, Dr. Barrick opined that the lumbar radiculopathy was causing plaintiff to experience hip pain (Tr. 397).
An ESI is a minimally invasive procedure that delivers both a corticosteroid and an anesthetic numbing agent into the "epidural space of the spine, which is the area between the protective covering (dura) of the spinal cord and the nerves of the bony vertebrae." Epidural Steroid Injection (ESI), Mayfield Brain & Spine, available at https://www.mayfieldclinic.com/PE-ESI.htm (last visited June 4, 2018). The procedure may last fifteen to forty-five minutes and is followed by a recovery period. Epidural Steroid Injection (ESI), supra.
c. Dr. Steven Jacobs
Plaintiff visited Dr. Steven Jacobs, a neurosurgeon at New York Neurological, on ten occasions prior to the alleged onset of her disability.
Plaintiff's initial consultation with Dr. Jacobs took place on May 15, 2012 (Tr. 287). Plaintiff told Dr. Jacobs that her workplace injury actually took place on February 28, 2012 and denied any back pain prior to that date (Tr. 287). Plaintiff complained of progressive back pain radiating down her left leg into the groin and reported weakness, tingling and numbness in her left leg (Tr. 287). She described the pain as "incapacitating" and stated the pain was an eight out of ten in severity (Tr. 287). She further claimed the back pain was aggravated by activity and relieved by rest (Tr. 287).
Dr. Jacob's physical examination of plaintiff's lumbar spine revealed pain when plaintiff rose from a seated position (Tr. 289). The plaintiff exhibited a distressed posture during the history taking portion of the exam (Tr. 289). Plaintiff also had increased back pain standing up from the examination table (Tr. 289). Walking was difficult and painful for plaintiff, particularly toe walking (Tr. 289). During the straight leg raising test, plaintiff was only able to bilaterally raise her legs to 50 degrees without feeling pain, indicating nerve root irritation (Tr. 289). Plaintiff was able to balance on one leg with difficulty (Tr. 289). Her lumbar spine range of motion was painful in all planes of motion (Tr. 289). Plaintiff's forward extension was painful at 0 to 10 degrees (normal is 0-30 degrees); right and left lateral rotation was painful at 30 degrees (normal is 0 to 45 degrees) and right and left lateral bending was painful at 25 degrees (normal is 0-50 degrees) (Tr. 289-90).
The straight leg raising test is used to assess patients who complain of back pain that radiates down one leg for nerve root irritation. A Practical Guide to Clinical Medicine: Musculo-Skeletal Examination, University of California, San Diego School of Medicine, available at https://meded.ucsd.edu/clincalmed/joints6.htm (last visited June 4, 2018). To conduct a straight leg raising test, the patient must first lie on his or her back and completely relax the affected leg. A Practical Guide to Clinical Medicine: Musculo-Skeletal Examination, supra. Cupping the heel of the foot of that leg, the treating physician will gently rase the leg. A Practical Guide to Clinical Medicine: Musculo-Skeletal Examination, supra. If the patient experiences pain when his or her leg is elevated between 30 and 60 degrees, the test is positive, indicating that root irritation is likely; if there is no sensitivity in that range, the test is negative and the patient is unlikely to suffer from root irritation. A Practical Guide to Clinical Medicine: Musculoskeletal Examination, supra.
After speaking with plaintiff, conducting a physical examination and reviewing the March 14, 2012 MRI, Dr. Jacobs opined that plaintiff had a left lateral herniated disc compressing the left L4 nerve root and a smaller disc herniation at L5-S1 without nerve root compression (Tr. 287). Dr. Jacobs found that plaintiff had a 75% partial musculoskeletal disability and was unable to return to work as a CNA (Tr. 290). Dr. Jacobs recommended physical therapy and ordered an Electromyogram Test ("EMG") and a Nerve Conduction Velocity Test ("NCV") of the lower extremities in order to guide future treatments (Tr. 290). Plaintiff was also provided with a back brace and a TENS unit for pain relief (Tr. 291).
Unlike a bulging disc described above, a herniated disc occurs when a disc in between two vertebrae becomes compressed and breaks, causing the inner gel from the disc to leak into the spinal cord and impact a nerve root. Lumbar (Lower Back) Herniated Disc - Overview and Treatment Options, Laser Spine Institute, available at https://www.laserspineinstitute.com/herniated_disc/lumbar/ (last visited June 4, 2018). Patients diagnosed with a herniated disc in the lumbar spine may experience local pain in the lower back, which can also radiate into the buttocks and legs. Lumbar (Lower Back) Herniated Disc - Overview and Treatment Options, supra. Typically, an MRI is needed to diagnose this condition. Lumbar (Lower Back) Herniated Disc - Overview and Treatment Options, supra.
An Electromyogram Test is an electrodiagnostic test that records extracellular activity of skeletal muscles while at rest, during voluntary contractions and electrical stimulation. See Dorland's at 602.
A Nerve Conduction Velocity Test measures how fast an electrical impulse moves through the nerves and can help identify nerve damage. Nerve Conduction Studies, John Hopkins Medicine, available at https://www.hopkindsmedicine.org/healthlibrary/test_procedures/neurological/nerve_conduction_velocity_92, P07657 (last visited June 4, 2018).
TENS refers to transcutaneous electrical nerve stimulation. Dorland's at 1951. "Transcutaneous electrical nerve stimulation (TENS) is a common form of noninvasive pain treatment involving the use of electrical current, transmitted via electrodes placed on the skin." McGann v. Colvin, 14 Civ. 1585 (KPF), 2015 WL 5098107 at *1 n.2 (S.D.N.Y. Aug. 31, 2015) (Failla, D.J.), citing Effectiveness of Transcutaneous Electrical Nerve Stimulation for Treatment of Hyperalgesia and Pain, Current Medicine Group (2008), available at http://www.ncbi.nlm.nih.gov/pmc/articles-/PMC2746624.
Dr. Marc J. Rosenblatt conducted an EMG and NCV on plaintiff on June 11, 2012 (Tr. 292). Plaintiff's reflexes tested normal and symmetrical, except for her left knee, which registered 1+, indicating a somewhat diminished reflex (Tr. 292). Plaintiff's lumbar spine exhibited bilateral paraspinal spasms with multiple trigger points and there was marked tenderness over the left sacroiliac joint (Tr. 292). Dr. Rosenblatt summarized the results of the EMG, opining that there was evidence of L-5 radiculopathy and evidence of traumatically induced left-sided sacroiliitis (Tr. 293). Dr. Rosenblatt suggested that plaintiff consider epidural injections and sacroiliac joint injections to assist with pain management (Tr. 293).
The sacroiliac joint connects the sacrum (triangular bone at the bottom of the spine) with the pelvis. See Dorland's at 1662.
Sacroiliitis refers to inflammation or arthritis in the sacroiliac joint. See Dorland's at 1662.
The following day, plaintiff had her post-EMG follow up with Dr. Jacobs (Tr. 299). Plaintiff continued to report back pain that radiated down both legs, but declined epidural injections (Tr. 299-301). Dr. Jacobs opined that plaintiff remained 75% disabled and that she may be a candidate for decompression surgery (Tr. 300-01).
Plaintiff's next appointment with Dr. Jacobs was on July 16, 2012 (Tr. 302). Plaintiff reported that she had returned to work and was feeling better since starting physical therapy and home exercises (Tr. 302). Plaintiff reported decreased pain and numbness in her legs (Tr. 302), Plaintiff's physical examination showed normal gait and station, motor skills and reflexes with no sensory loss (Tr. 302). However, Dr. Jacobs opined that plaintiff still suffered from lumbar radiculopathy and that plaintiff was 50% disabled (Tr. 303).
On October 15, 2012, plaintiff saw Dr. Jacobs again and reported that she was feeling better than her last visit. She reported less back pain and occasional discomfort in her left leg (Tr. 305). Plaintiff had returned to work full-time (Tr. 305). Her physical examination showed normal gait and station, motor skills and reflexes with no sensory loss (Tr. 305-06). Dr. Jacobs opined that plaintiff was 25% disabled (Tr. 306).
Plaintiff next visited Dr. Jacobs on January 7, 2013 and reported intermittent back pain; she also stated that she felt the same as she did at her last visit (Tr. 308). Plain- tiff's physical examination showed normal gait and station, motor skills and reflexes with no sensory loss (Tr. 309). Dr. Jacobs advised against any type of lumbar spine surgery and opined plaintiff was still 25% disabled (Tr. 310). Plaintiff was working full-time at the time of this visit (Tr. 308).
On March 4, 2013, plaintiff visited Dr. Jacobs and claimed that the week prior to her appointment, she moved a bedridden patient while at work and approximately an hour later, her lower back started to hurt (Tr. 311). Plaintiff claimed that she was now experiencing constant sharp back pain that radiated down her left groin, buttock and leg (Tr. 311). Plaintiff was also experiencing numbness and tingling down the left leg and stated that her pain increased with sitting (Tr. 311). Her physical examination showed normal gait and station, motor skills and reflexes with no sensory loss; however, she tested positive for pain at 40 degrees during the straight leg raising test on her left leg (Tr. 312-13). Dr. Jacobs ordered an MRI of plaintiff's lumbar spine and opined plaintiff was 50% disabled (Tr. 313).
Dr. Michael Bromley performed the MRI on March 15, 2013, which revealed a slight progression of plaintiff's degenerative disc disease and a mild disc desiccation at L2-3 and L5- S1 (Tr. 315). Like plaintiff's March 14, 2012 MRI, the MRI confirmed moderate left foraminal and minimal right foraminal stenosis, but no significant spinal stenosis (Tr. 315-16). Dr. Bromley opined that plaintiff's disc bulges were largely unchanged since her last MRI and reported that despite the progression of her degenerative disc disease, she did not present with any significant spinal stenosis (Tr. 315-16).
Disc desiccation refers to the dehydration of shock-absorbing intervertebral discs in the spine. Dorland's at 500. Disc desiccation is a common feature of degenerative disc disease. Multilevel Degenerative Disc Disease, supra.
At plaintiff's next appointment with Dr. Jacobs on April 8, 2013, however, Dr. Jacobs diagnosed plaintiff with significant spinal stenosis and opined that she was 75% disabled (Tr. 319). Her physical examination showed normal gait and station, motor skills and reflexes with no sensory loss. Plaintiff reported back pain that was constantly interrupting her daily activities and described the pain as a seven out of ten in severity (Tr. 317). Dr. Jacobs referred plaintiff to Dr. Peter Zheng for pain management and ordered four weeks of physical therapy (Tr. 319). Dr. Jacobs also recommended that plaintiff undergo decompression and fusion surgery if epidural spinal injections and physical therapy did not alleviate plaintiff's pain (Tr. 319).
Although Dr. Jacobs referred plaintiff to Dr. Zheng on April 8, 2013, the only records from Dr. Zheng are from January and February 2015 (Tr. 823-26).
On May 14, 2013, plaintiff reported to Dr. Jacobs that physical therapy was not alleviating her back pain and that the pain continued to radiate down her left leg (Tr. 320). Plaintiff described her physical condition as unchanged since her last visit (Tr. 320). Dr. Jacobs ordered another EMG/NCV study of plaintiff's lower extremities and a Functional Capacity Test because plaintiff claimed to be unable to work as a CNA due to her back and leg pain (Tr. 322). Dr. Jacobs opined that plaintiff was 75% disabled (Tr. 322).
Plaintiff underwent an EMG study with Dr. Rosenblatt on May 17, 2013 (Tr. 344). The results showed bilateral paraspinal spasms in plaintiff's lumbar spine with multiple trigger points and limited range of motion in multiple planes (Tr. 344). The test also revealed evidence of left L4-5 and L3-4 lumbosacral radiculopathy (Tr. 345).
Dr. Jacobs reviewed these results with plaintiff on May 20, 2013 (Tr. 323). He also performed a physical examination of plaintiff, which revealed slight abnormalities during the motor exam (Tr. 324). Dr. Jacobs diagnosed plaintiff with radiculopathy in left L3-4 and L4-5 and a left lateral herniated disc at L3-4 (Tr. 325). He opined that plaintiff was 100% disabled and scheduled her for decompression and fusion surgery at L3-4 (Tr. 325).
Plaintiff had a pre-operative visit with Dr. Jacobs on June 10, 2013 -- two days prior to her alleged date of disability (Tr. 330). Dr. Jacobs continued to classify plaintiff as 100% disabled and prescribed Dilaudid and Keflex for the post-surgical period (Tr. 330).
Dilaudid is an opioid narcotic medication made with preparations of hydromorphone hydrochloride, a morphine alkaloid, the hydrochloride salt of hydromorphone for the relief of moderate to severe pain. Dorland's at 520, 879.
Keflex is an antibiotic medication made with preparation of cephalexin for treatment of bacterial infections. Dorland's at 978.
d. St. Luke's Cornwall Center for Physical Therapy
Plaintiff attended ten physical therapy sessions at St. Luke's Cornwall Center for Physical Therapy from March 20, 2012 until May 15, 2013. On March 20, 2012, plaintiff was seen by physical therapist John Geurriero and reported lower back pain from her injury on March 10, 2012 (Tr. 494). Plaintiff claimed to have difficulty sleeping, standing, walking, climbing stairs and performing "toilet hygiene" (Tr. 494-95). Plaintiff described her pain in the lumbar area as a five out of ten in severity while she was resting and as an eight out of ten with activity (Tr. 495). Plaintiff reported some pain relief with medication and lying down (Tr. 495). During the physical examination, plaintiff's left L3-5 back muscles and buttocks muscles were tender to the touch (Tr. 495).
Guerriero opined that plaintiff presented with findings consistent with lumbar radiculopathy and performed a slump test, a la segue test and conducted a spinal assessment (Tr. 495). The slump test indicated adverse neural tension and dural restriction (Tr. 495). The lasegue test indicated dural or nerve root restrictions (Tr. 496). The spinal assessment showed plaintiff's joint mobility was decreased bilaterally at S1 and L3-5 (Tr. 496). Guerriero also noted decreased weight bearing ability on plaintiff's left side (Tr. 469). Guerriero recommended physical therapy three times per week for six weeks (Tr. 496).
The slump test is used to test neural tissue sensitivity and is performed by slowly and progressively stretching the neural structures within the vertebral canal and foramen. Slump Test, Physiopedia, available at https://www.physio-pedia.com/Slump_Test (last visited June 6, 2018).
The lasegue test is another term for the straight leg raising test described above at n.19. Dorland's at 1006.
Plaintiff's next documented physical therapy session did not take place until April 4, 2012 (Tr. 500). Plaintiff claimed she was still in pain, but had less difficulty sleeping, standing, walking, climbing stairs and performing "toilet hygiene" (Tr. 500). Plaintiff described her pain as a three out of ten while she was resting and as a five out of ten with activity (Tr. 500). During the session, plaintiff vocalized pain with extension, left-sided bending, and rotation (Tr. 500). Both the slump test and the lasegue test were positive and plaintiff's joint mobility was still diminished (Tr. 501).
Plaintiff did not visit Guerriero again until a month later, May 4, 2012, when she described her pain as a three out of ten while resting and as a four out of ten with activity (Tr. 502). Plaintiff tested positive for pain during the slump test, but negative for pain during the lasegue test (Tr. 502-03). Guerriero noted that she continued to have decreased mobility (Tr. 503).
Plaintiff did not return to St. Luke's Cornwall Center for Physical Therapy until almost a year later on April 23, 2013 (Tr. 436). Plaintiff did, however, participate in seven physical therapy sessions with Guerriero from April 23, 2013 until May 15, 2013 (Tr. 436-45). During these sessions, Guerriero assisted plaintiff with manual therapy and various stretches to improve her pain and weakness (Tr. 436-45). Plaintiff's back pain level ranged from a four out of ten to a six out of ten during this time period (Tr. 436-45) Guerriero did not document any specific physical tests, but commented that plaintiff was able to perform the exercises without difficulty (Tr. 436-45).
e. Dr. Govindlal Bhanusali
On May 1, 2013, plaintiff was examined by Independent Medical Examiner (IME), Dr. Govindlal Bhanusali, in connection with her workers' compensation claim arising out of her March 10, 2012 workplace injury (Tr. 415). Plaintiff reported to Dr. Bhanusali that she had returned to work as a CNA in May 2012 after this injury, but stopped work on February 19, 2013 because of her back pain (Tr. 415). Plaintiff reported she was experiencing lower back pain on the day of her appointment that was radiating down her left groin, buttock and thigh and described the pain as a six out of ten (Tr. 415).
Dr. Bhanusali observed plaintiff walk into the examination room without a limp and without any assistive device (Tr. 415). The physical exam showed no abnormalities, except for the lumbosacral spine flexion, which was 50 out of 70 degrees, and squatting, which the plaintiff could only perform at 75% (Tr. 417-18). Both of these resulted in some pain in the lumbosacral spine (Tr. 417-18). Dr. Bhanusali also reviewed (1) the March 14, 2012 MRI; (2) the June 11, 2012 EMG test results; (3) the workers' compensation report; (4) multiple physical therapy reports from St. Luke's Cornwall Center for Physical Therapy; (5) notes of Terry Alexander from March 19, 2012 and April 3, 2012; (6) Dr. Jacobs' reports of plaintiff's visits on May 15, 2012, June 12, 2012, July 16, 2012, October 15, 2012 and January 7, 2013 and (7) Dr. Barrick's report from his May 24, 2012 examina- tion of plaintiff (Tr. 416).
Dr. Bhanusali's report states this MRI took place on March 11, 2012; however, the MRI report from DRA Imaging lists the date as March 14, 2012 (Tr. 286).
Based on his conversation with plaintiff, his review of her prior medical records and his observations during her physical examination, Dr. Bhanusali reported a guarded prognosis that plaintiff was 50% disabled and that she should be restricted to "light duty type work" with a fifteen pound lifting limitation (Tr. 419). He instructed plaintiff to avoid bending, pushing, pulling and strenuous physical activities and recommended she continue with physical therapy and consultations with a pain management specialist (Tr. 419).
2. Medical Records for the Relevant Time Period
a. Dr. Steven K. Jacobs
Dr. Jacobs performed lumbar decompression surgery on plaintiff at Putnam Hospital Center on June 12, 2013 -- the alleged onset date of plaintiff's disability (Tr. 225-30). Dr. Jacobs performed a hemilaminectomy at L3 and the superior part of the lamina on the left at L4 was removed to decompress the nerve roots (Tr. 228). Dr. Jacobs opined that a full discectomy, or removal of the intervertebral disc, was unnecessary (Tr. 229). Plaintiff was ambulating without weakness upon discharge and was instructed not to lift anything over ten pounds (Tr. 226).
Hemilaminectomy is a decompression surgery technique in which a portion of the lamina, or the posterior section of the vertebrae arch, is removed to create more space in the spinal canal to release pressure on nerve tissue. Dorland's at 836, 1000.
Plaintiff saw Dr. Jacobs for a follow-up appointment twelve days later on June 24, 2013 (Tr. 350). Plaintiff reported her overall strength was improving and she denied any radiating pain or numbness on her left side (Tr. 350). Plaintiff's physical examination showed normal gait and station, motor skills and reflexes with no sensory loss (Tr. 351). Dr. Jacobs removed the staples from the incision site, which was well-healed, and noted that plaintiff was making steady improvements (Tr. 351). Dr. Jacobs opined plaintiff was still 100% disabled (Tr. 352).
On July 15, 2013 and August 6, 2013, plaintiff visited Dr. Jacobs again and reported some back soreness, but stated that her pain was continuing to improve (Tr. 353-54, 356). Her physical examinations at both visits showed normal gait and station, motor skills and reflexes with no sensory loss (Tr. 354, 357). Dr. Jacobs noted plaintiff was doing well after her surgery, but still opined that she was 100% disabled (Tr. 353, 355-56).
On November 11, 2013, plaintiff visited Dr. Jacobs and reported some pain and advised that she still had not returned to work (Tr. 335). Her physical examination showed normal gait and station and normal reflexes with no sensory loss (Tr. 336). Her motor skills tested normal, except for her dorsiflexor, which was below normal on the right side (Tr. 336). Dr. Jacobs referred plaintiff for a functional capacity evaluation to evaluate her capacity to perform work activities as a CNA and opined that she was still 100% disabled (Tr. 338).
On December 23, 2013, plaintiff reported to Dr. Jacobs that her condition was deteriorating and that she was experiencing increased back pain that was radiating down her left side and increased numbness (Tr. 359). Plaintiff denied any new trauma or accidents (Tr. 359). During her physical examination, her gluteal muscle registered 4+/5 and her hamstring registered 4+/5 during her motor examination and she had decreased sensation over her left L4-5 during her sensory examination (Tr. 360). Her gait and station remained normal (Tr. 360). Dr. Jacobs expressed concern about the recurrent weakness and sensory loss in plaintiff's left leg and ordered a new MRI of the lumbar spine and an EMG/NCV test of the lower extremities (Tr. 361). Dr. Jacobs also prescribed plaintiff Medrol Dosepak, Flexeril and Motrin for pain management (Tr. 361). Dr. Jacobs opined that plaintiff was still 100% disabled (Tr. 361).
Medrol Dosepak, a preparation of methylprednisolone, is used as an anti-inflammatory and immunosuppressant in a wide variety of disorders. Dorland's at 1120, 1154.
Dr. Jon Lewis conducted an MRI of plaintiff on January 2, 2014 (Tr. 256). Like plaintiff's March 15, 2013 MRI, Dr. Lewis noted plaintiff's mild left foraminal stenosis at L3-4 and L4-5 due to large broad-base disc bulges, but no significant spinal stenosis (Tr. 256). Other than changes consistent with her lumbar decompression surgery, Dr. Lewis opined that there were no significant changes to plaintiff's spine when he compared these findings with the March 15, 2013 MRI (Tr. 256-57).
Plaintiff visited Dr. Jacobs on January 14, 2014, complaining of severe intermittent back pain that radiated into her left buttock along with numbness and tingling (Tr. 363). Plaintiff also reported that the pain was affecting her sleep and that she was unable to lift anything (Tr. 363). She reported that physical therapy and rest would only temporarily alleviate her symptoms and she continued to take Flexeril and Motrin for her pain (Tr. 363). Plaintiff tested positive for pain at 40 degrees on the left side during the straight leg test and noted decreased sensation to pinprick over the L4-5 distribution during her sensory exam (Tr. 365). Plaintiff's gait and station, motor skills and reflexes all tested normal (Tr. 365-66). Dr. Jacobs agreed with Dr. Lewis that plaintiff's January 2, 2014 MRI showed no significant disc herniations or stenosis, but opined that plaintiff was still 100% disabled (Tr. 366-67). He ordered an EMG/NCV test of the lower extremities and instructed plaintiff to begin physical therapy and an aquatherapy program (Tr. 367).
Aquatherapy -- often referred to as aquatic therapy or hydrotherapy -- is a conservative form of physical therapy that involves various exercises and movements in warm water to strengthen muscles and alleviate pain. Back Pain Relief from Aquatic Therapy, Laser Spine Institute, available at https://www.laserspineinstitute.com/beendoctors/section/other26/aquatic/185 (last visited June 8, 2018).
Dr. Rosenblatt conducted an EMG/NCV study of plaintiff on January 30, 2014, the results of which were normal with no evidence of radiculopathy, neuropathy or myopathy (Tr. 369). Thus, Dr. Rosenblatt opined that plaintiff's pain may be secondary to soft tissue scarring (Tr. 369).
Neuropathy refers to a functional disturbance or pathological change in the peripheral nervous system. Dorland's at 1268.
Myopathy is any disease of the muscle. Dorland's at 1224.
On February 3, 2014, plaintiff followed up with Dr. Jacobs and continued to complain of back pain (Tr. 371). Plaintiff reported that she felt about the same as she felt on her previous visit except that she was no longer experiencing significant leg pain (Tr. 371). Her physical examination showed normal gait and station, motor skills and reflexes with no sensory loss (Tr. 372). Dr. Jacobs agreed with Dr. Rosenblatt that plaintiff's EMG was normal (Tr. 372). He continued to recommend physical therapy and acquatherapy and opined plaintiff was still 100% disabled (Tr. 372-73).
Plaintiff visited Dr. Jacobs on April 28, 2014 and June 2, 2014 and reported feeling the same as she did on her February 3, 2014 visit (Tr. 374, 377). Her physical examinations showed normal gait and station, motor skills and reflexes with no sensory loss (Tr. 375, 378). She reported that physical therapy provided her with moderate pain relief (Tr. 374-78). Dr. Jacobs recommended continuing therapy and pain management and opined that plaintiff was still 100% disabled (Tr. 376, 379).
On September 15, 2014, plaintiff reported to Dr. Jacobs that her condition was unchanged (Tr. 380). Dr. Jacobs noted some lumbar muscle spasms, but plaintiff's physical examination showed normal gait and station, motor skills and reflexes with no sensory loss (Tr. 381). Dr. Jacobs referred plaintiff for chiropractic care in addition to her therapy (Tr. 382).
Plaintiff next saw Dr. Jacobs on November 10, 2014 and reported that her condition was not improving and that she was experiencing radiating pain down her left leg. Dr. Jacobs referred plaintiff to Dr. Peter Zheng for a neurostimulator trial (Tr. 385). Her physical examination on that date continued to reveal no abnormalities, showing normal gait and station, motor skills and reflexes with no sensory loss (Tr. 384).
Neurostimulation involves the stimulation of nerves or neural tissue for therapeutic purposes. Dorland's at 1271.
Plaintiff reported no change in her condition during her follow-up appointments with Dr. Jacobs on January 21, 2015 and April 27, 2015 (Tr. 386, 389). Her physical examination during these visits showed normal gait and station, motor skills and reflexes with no sensory loss, but Dr. Jacobs continued to opine that she remained 100% disabled (Tr. 386-91).
On August 11, 2015 -- two weeks prior to plaintiff's supplemental hearing before the ALJ -- Dr. Jacobs completed a medical source statement form and stated that plaintiff could continuously lift and carry up to ten pounds and could frequently lift and carry up to twenty pounds (Tr. 997). He stated plaintiff could constantly sit, stand and walk throughout an eight-hour workday, but might need to change positions (Tr. 998). He further noted that plaintiff could continuously climb stairs and ramps, but with rest as needed (Tr. 1000). He also stated that plaintiff might need "support" for frequent low level reaching and did not require the use of a cane to walk (Tr. 998-1000). Dr. Jacobs opined that as of that date, plaintiff was capable of doing "light work" (Tr. 1002).
b. St. Luke's Cornwall Center for Physical Therapy
Plaintiff's first physical therapy session after her spinal decompression surgery took place on August 6, 2013 with Lisa Cipollini (Tr. 548). During this session, plaintiff complained of dull back and hip pain that radiated with activity and intermittent pain in her left groin (Tr. 549). She described the pain as a six out of ten in severity at rest and an eight out of ten with activity (Tr. 549). Plaintiff further reported that her pain decreased when she was sitting up in a chair, icing and shifting positions (Tr. 549). She was taking only Tylenol for her pain at that time (Tr. 549). Plaintiff reported difficulty in completing daily tasks, such as, cooking, cleaning and lifting objects (Tr. 550).
Plaintiff did not return to St. Luke's until December 2, 2014 and attended physical therapy sessions on that date and on December 4, 9, 11 and 17. Over the course of these five sessions, plaintiff's back pain levels fluctuated between a seven out of ten and eight out of ten (Tr. 541-50). The therapists noted no physical abnormalities during these sessions (Tr. 541-50).
c. Dr. Govindlal Bhanusali
Plaintiff reported to Dr. Bhanusali for a second time on August 5, 2013 for an independent orthopedic examination with respect to her workers' compensation claim (Tr. 424). Plaintiff stated she was experiencing back pain that was a seven out of ten and leg pain that was five out of ten (Tr. 424). She claimed her back pain had not improved since her surgery and that her leg pain had improved only approximately 10% (Tr. 424). Plaintiff used a cane to walk into Dr. Bhanusali's office and was wearing a spinal bone growth stimulator (Tr. 424).
A spinal bone growth stimulator is an electrical device used to induce the growth of a new bone after spinal fusion surgery. Bone Growth Simulator, Laser Spine Institute, available at https://www.laserspineinstitute.com/learn_more/glossary/definition/bone_growth_stimulator/16 (last visited June 8, 2018).
Plaintiff's range of motion in her lumbar spine was greatly decreased compared to her May 1, 2013 visit (Tr. 426). Her flexion was 30 out of 70 degrees and her extension was 0 out of 30 degrees (Tr. 426). She also reported pain when she attempted to perform the straight leg raising test, and she was only able to reach a 50% squatting position with both lower extremities (Tr. 426).
After speaking with plaintiff, observing her during the physical examination and reviewing her prior medical records, Dr. Bhanusali opined that plaintiff was symptomatic and that use of the spinal bone growth stimulator and a course of physical therapy was appropriate (Tr. 426-27). He also opined that she was capable of walking up to half a mile a day (Tr. 426).
d. Dr. Gilbert Jenouri
Plaintiff underwent a neurological examination by Dr. Gilbert Jenouri after being referred by the Division of Disability Determination on February 10, 2014 (Tr. 280). Plaintiff reported to Dr. Jenouri that she had been having difficulties with her lower back since 2012 and that she was still experiencing back pain post surgery (Tr. 280). Plaintiff described the pain as throbbing, radiating and a seven out of ten in severity (Tr. 280). When asked to list her daily activities during this time period, plaintiff stated she cooked three to four times per week, cleaned once a week, did her laundry once a week and went food shopping once a week (Tr. 280). Plaintiff also stated that she showered and dressed daily, watched television, listened to the radio, read books and occasionally went out socially (Tr. 280).
Plaintiff's physical examination revealed no motor or sensory loss, and Dr. Jenouri noted plaintiff was able to walk without assistance and was able to rise from her chair without difficulty (Tr. 281). Dr. Jenouri diagnosed plaintiff with lower back pain and left lower extremity radiculopathy (Tr. 282). He opined that plaintiff's condition was stable and set no restrictions for her other than recommending the use of a cane when walking outside or when in pain (Tr. 281-82).
e. Functional Capacity Exam
Plaintiff underwent a functional capacity exam with physical therapist, Kevin Stafford, on October 23, 2014 (Tr. 966-67, 1004). Stafford noted that with proper breaks and seating adjustments, plaintiff could constantly sit, stand and walk (Tr. 966-67). Stafford also opined that plaintiff was limited in low level activities, such as, climbing stairs, bending, stooping and driving and may need some support when engaging in these activities (Tr. 966-67, 1004). He concluded, therefore, that plaintiff was able to perform "light work" as defined by the United States Department of Labor (Tr. 1004). Based on this assessment, Stafford opined that plaintiff would not be able to return to work as a CNA and that a job testing match and a job function analysis should be completed (Tr. 1004).
f. Dr. Peter Zheng
Plaintiff attended an appointment with the pain management specialist Dr. Peter Zheng on January 8, 2015 (Tr. 825). Plaintiff described her pain that day as aching, throbbing and radiating down her left leg (Tr. 825). She stated it was between a five and an eight out of ten in severity and that it increased with activity (Tr. 825). Plaintiff also reported stiffness, fatigue and difficulty with sleeping and daily activities due to the pain (Tr. 825).
During her physical examination, plaintiff exhibited a limited range of motion in her thoracic and lumbar spine, but had a full range of motion in her hips and knees (Tr. 825). A stork test was positive, indicating less than normal mobility (Tr. 825). Her motor skills were normal, except for slight weakness in her left knee and ankle, and she had some decreased sensation at the left L4-S1 dermatomal distribution (Tr. 825). Plaintiff's straight leg test was negative and she presented with normal gait and station and normal reflexes (Tr. 825). Dr. Zheng advised plaintiff that spinal cord stimulation would be her best option for pain management, but that she should perform therapeutic exercises three to four times a day first to see if they alleviated the pain (Tr. 826).
The stork test involves testing the movement in the Posterior Superior Iliac Spine; a positive test indicates less than normal mobility. Stork Test, Physiopedia, available at https://www.physio-pedia.com/Stork_test (last visited June 8, 2018).
Spinal cord stimulation involves surgically implanting a spinal cord stimulator device in the spine which transmits electronic pulses to the nerve fibers in the spinal cord to mask pain signals before they reach the brain. Spinal Cord Stimulation, Mayfield Clinic, available at http://www.mayfieldclinic.com/pe-stim.htm (last visited June 8, 2018).
Plaintiff followed up with Dr. Zheng on February 12, 2015 and complained that her pain had increased to a nine out of ten (Tr. 823). Plaintiff stated that she could no longer tolerate her back pain and requested to start the neuro spinal cord stimulator trial (Tr. 824). However, as of the hearing, plaintiff had not pursued this course of treatment and testified that she was unsure if she was going to pursue it (Tr. 66).
During her physical examination on February 12, 2015, plaintiff exhibited limited range of motion in her thoracic and lumbar spine and full range of motion in her hips and knees (Tr. 823). A stork test was positive (Tr. 823). Her motor skills tested normal, except for slight weakness in her left knee and ankle, and she had some decreased sensation at the left L4-S1 dermatomal distribution (Tr. 823). Plaintiff's straight leg test was negative, and she presented with normal gait and station and normal reflexes (Tr. 825).
D. Proceedings Before the ALJ
1. Plaintiff's Testimony
Plaintiff testified that the June 12, 2013 surgery alleviated a lot of the pressure off her back, but that she was still experiencing pain (Tr. 36). She claimed that the medicine she had been prescribed made her sick and debilitated to the point where she was unable to get out of bed (Tr. 37), Plaintiff stated that she tries to walk about a mile every day, but used her cane to take pressure off her back (Tr. 38). Plaintiff further claimed that she had been prescribed a walker, but did not use it because it did not fit in her house (Tr. 38-39). She testified that she is only able to sit or stand for approximately ten to fifteen minutes at a time before needing to move positions and that she has difficulty lifting objects (Tr. 40). When asked if she could perform a less demanding job than her former work as a CNA, plaintiff responded that she did not think so because she does not have a degree and was worried that most jobs that did not require a degree would require her to regularly lift fifty pounds (Tr. 41).
Plaintiff testified that she rarely goes out socially and spends most of her time at home where she reads, does puzzles, watches television, does crafts and takes care of her indoor plants (Tr. 42). Plaintiff stated that she is able to dress and bathe herself and complete basic household tasks, such as, laundry, cooking and cleaning (Tr. 42). She also goes grocery shopping every two weeks and asks her daughter to accompany her when needed (Tr. 42). Plaintiff is able to drive and drove to the hearing unaccompanied (Tr. 31).
2. Vocational Expert Testimony
Vocational expert Brian Daly ("the VE") also testified at the hearing. The VE testified that plaintiff's past work, described in the United States Department of Labor's Dictionary of Occupational Titles ("DOT") as a CNA, DOT Code 355.674-014, was considered medium, semi-skilled work (Tr. 51-52). The ALJ asked the VE to consider possible jobs for a hypothetical person of plaintiff's age, education and work background, who was limited to a range of light work that involved never climbing ladders, ropes or scaffolds and never kneeling, crouching or crawling and only occasional climbing stairs and ramps and only occasional balancing and stooping (Tr. 52). The VE testified that such a hypothetical individual could not perform plaintiff's past work as a CNA (Tr. 52), The VE testified, however, that such an individual could work in jobs such as an informational clerk, DOT Code 237.367-018, with 981,150 jobs nationally, a counter clerk, DOT Code 249.366-010, with 437,610 jobs nationally and a store facility rental clerk, DOT Code 295.367-026, with 437,610 jobs nationally (Tr. 52-53). The VE further testified that a hypothetical person of plaintiff's age, education and work background with the above described limitations would not be able to work in any jobs if the person was required to walk with a handheld device at all times or if the person was off task 15% to 20% of the day (Tr. 54-55).
The regulations define "light work" as work which
involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.20 C.F.R. § 404.1567(b).
III. Analysis
A. Applicable Legal Principles
1. Standard of Review
The Court may set aside the final decision of the Commissioner only if it is not supported by substantial evidence or if it is based upon an erroneous legal standard. 42 U.S.C. § 405(g); Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2014) (per curiam); Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012); Burgess v. Astrue, 437 F.3d 117, 127 (2d Cir. 2008). Moreover, the court cannot "affirm an administrative action on grounds different from those considered by the agency." Lesterhuis v. Colvin, 805 F.3d 83, 86 (2d Cir. 2015), quoting Burgess v. Astrue, supra, 537 F.3d at 128.
The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence. Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003), citing Teiada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). "Even if the Commissioner's decision is supported by substantial evidence, legal error alone can be enough to overturn the ALJ's decision." Ellington v. Astrue, 641 F. Supp. 2d 322, 328 (S.D.N.Y. 2009) (Marrero, D.J.). However, "where application of the correct legal principles to the record could lead to only one conclusion, there is no need to require agency reconsideration." Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
"'Substantial evidence' is 'more than a mere scintilla. It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Talavera v. Astrue, supra, 697 F.3d at 151, quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). Consequently, "[e]ven 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), quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982). Thus, "[i]n determining whether the agency's findings were 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.'" Selian v. Astrue, supra, 708 F.3d at 417 (citation omitted).
2. Determination Of Disability
A claimant is entitled to DIB if the claimant can establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); see also Barnhart v. Walton, 535 U.S. 212, 217-22 (2002) (both the impairment and the inability to work must last twelve months). In addition, to obtain DIB, the claimant must have become disabled before the date on which she was last insured. See 42 U.S.C. §§ 416(i), 423(a); 20 C.F.R. §§ 404.130, 404.315; McKinstrv v. Astrue, 511 F. App'x 110, 111 (2d Cir. 2013) (summary order), citing Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008).
The standards that must be met to receive Social Security Insurance ("SSI") benefits under Title XVI of the Act are the same as the standards that must be met in order to receive DIB under Title II of the Act. Barnhart v. Thomas, 540 U.S. 20, 24 (2003). Accordingly, cases addressing the former are equally applicable to cases involving the latter.
The impairment must be demonstrated by "medically acceptable clinical and laboratory diagnostic techniques," 42 U.S.C. § 423(d)(3), and it must be "of such severity" that the claimant cannot perform her previous work and "cannot, considering [her] age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). Whether such work is actually available in the area where the claimant resides is immaterial. 42 U.S.C. § 423(d)(2)(A).
In making the disability determination, the Commis- sioner must consider: "(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." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999), quoting Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (internal quotation marks omitted).
In determining whether an individual is disabled, the Commissioner must follow the five-step process required by the regulations. 20 C.F.R. § 404.1520(a)(4)(i)-(v); see Selian v. Astrue, supra, 708 F.3d at 417-18; Talavera v. Astrue, supra, 697 F.3d at 151. The first step is a determination of whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If she is not, the second step requires determining whether the claimant has a "severe medically determinable physical or mental impairment." 20 C.F.R. § 404.1520(a)(4)(ii). If she does, the inquiry at the third step is whether any of these impairments meet one of the listings in Appendix 1 of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). To be found disabled based on a listing, the claimant's medically determinable impairment must satisfy all of the criteria of the relevant listing. 20 C.F.R. § 404.1525(c)(3); Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Otts v. Comm'r of Soc. Sec., 249 F. App'x 887, 888 (2d Cir. 2007). If the claimant meets a listing, claimant is disabled. 20 C.F.R. § 404.152(a)(4)(iii).
If the claimant does not meet any of the listings in Appendix 1, step four requires an assessment of the claimant's residual functional capacity ("RFC") and whether the claimant can still perform her past relevant work given her RFC. 20 C.F.R. § 404.1520(a)(4)(iv); see Barnhart v. Thomas, supra, 540 U.S. at 24-25. If she cannot, then the fifth step requires assessment of whether, given claimant's RFC, she can make an adjustment to other work. 20 C.F.R. § 404.1520(a)(4)(v). If she cannot, she will be found disabled. 20 C.F.R. § 404.1520(a)(4)(v).
RFC is defined in the applicable regulations as "the most [the claimant] can still do despite [her] limitations." 20 C.F.R. § 404.1545(a)(1). To determine RFC, the ALJ "identif[ies] the individual's functional limitations or restrictions and assess[es] his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b),(c), and (d) of 20 [C.F.R. §§] 404.1545 and 416.945." Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (per curiam), quoting Social Security Ruling ("SSR") 96-8p, 1996 WL 374184 at *1 (July 2, 1996). The results of this assessment determine the claimant's ability to perform the exertional demands of sustained work which may be categorized as sedentary, light, medium, heavy or very heavy. 20 C.F.R. § 404.1567; see Schaal v. Apfel, 134 F.3d 496, 501 n.6 (2d Cir. 1998). This ability may then be found to be limited further by nonexertional factors that restrict a claimant's ability to work. See Michaels v. Colvin, 621 F. App'x 35, 38 n.4 (2d Cir. 2015) (summary order); Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010).
Exertional limitations are those which "affect [plaintiff's] ability to meet the strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling)." 20 C.F.R. § 404.1569a(b).
Nonexertional limitations are those which "affect only [plaintiff's] ability to meet the demands of jobs other than the strength demands," including difficulty functioning because of nervousness, anxiety or depression, maintaining attention or concentration, understanding or remembering detailed instructions, seeing or hearing, tolerating dust or fumes, or manipulative or postural functions, such as reaching, handling, stooping, climbing, crawling or crouching. 20 C.F.R. § 404.1569a(c).
The claimant bears the initial burden of proving disability with respect to the first four steps. Once the claimant has satisfied this burden, the burden shifts to the Commissioner to prove the final step -- that the claimant's RFC allows the claimant to perform some work other than her past work. Selian v. Astrue, supra, 708 F.3d at 418; Burgess v. Astrue, supra, 537 F.3d at 128; Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004), amended in part on other grounds on reh'g, 416 F.3d 101 (2d Cir. 2005).
When the ALJ finds that the nonexertional limitations significantly diminish a claimant's ability to work, then the Commissioner must introduce the testimony of a vocational expert or other similar evidence in order to prove "that jobs exist in the economy which the claimant can obtain and perform." Butts v. Barnhart, supra, 388 F.3d at 383-84 (internal quotation marks and citation omitted); see also Heckler v. Campbell, 461 U.S. 458, 462 n.5 (1983) ("If an individual's capabilities are not described accurately by a rule, the regulations make clear that the individual's particular limitations must be considered."). An ALJ may rely on a vocational expert's testimony in response to a hypothetical if there is "substantial record evidence to support the assumption[s] upon which the vocational expert based his opinion." Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir. 1983); accord Snyder v. Colvin, 667 F. App'x 319, 321 (2d Cir. 2016) (summary order) ("When the hypothetical posed to the vocational expert is based on a residual functional capacity finding that is supported by substantial evidence, the hypothetical is proper and the ALJ is entitled to rely on the vocational expert's testimony."); Rivera v. Colvin, 11 Civ. 7469, 2014 WL 3732317 at *40 (S.D.N.Y. July 28, 2014) (Swain, D.J.) ("Provided that the characteristics described in the hypothetical question accurately reflect the limitations and capabilities of the claimant and are based on substantial evidence in the record, the ALJ may then rely on the vocational expert's testimony regarding jobs that could be performed by a person with those characteris- tics.")
3. Treating Physician Rule
In considering the evidence in the record, the ALJ must afford deference to the opinions of a claimant's treating physicians. A treating physician's opinion will be given controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in . . . [the] record." 20 C.F.R. § 416.927(c)(2); see also Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000); Diaz v. Shalala, 59 F.3d 307, 313 n.6 (2d Cir. 1995); Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993).
The SSA recently adopted regulations that alter the standards applicable to the review of medical opinion evidence with respect to claims filed on or after March 27, 2017. See 20 C.F.R. § 404.1520c. Because plaintiff's claim was filed before that date, those regulations do not apply here.
"[G]ood reasons" must be given for declining to afford a treating physician's opinion controlling weight. 20 C.F.R. § 4 04.1527(c)(2); Schisler v. Sullivan, supra, 3 F.3d at 568; Burris v. Chater, 94 Civ. 8049 (SHS), 1996 WL 148345 at *4 n.3 (S.D.N.Y. Apr. 2, 1996) (Stein, D.J.). The Second Circuit has noted that it "'do[es] not hesitate to remand when the Commissioner has not provided "good reasons" for the weight given to a treating physician[']s opinion.'" Morgan v. Colvin, 592 F. App'x 49, 50 (2d Cir. 2015) (summary order), quoting Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004); accord Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015). Before an ALJ can give a treating physician's opinion less than controlling weight, the ALJ must consider various factors to determine the amount of weight the opinion should be given. These factors include: (1) the length of the treatment relationship and the frequency of examination, (2) the nature and extent of the treatment relationship, (3) the medical support for the treating physician's opinion, (4) the consistency of the opinion with the record as a whole, (5) the physician's level of specialization in the area and (6) other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)-(6); Schisler v. Sullivan, supra, 3 F.3d at 567; Mitchell v. Astrue, 07 Civ. 285 (JSR), 2009 WL 3096717 at *16 (S.D.N.Y. Sept. 28, 2009) (Rakoff, D.J.); Matovic v. Chater, 94 Civ. 2296 (LMM), 1996 WL 11791 at *4 (S.D.N.Y. Jan. 12, 1996) (McKenna, D.J.). Although the foregoing factors guide an ALJ's assessment of a treating physician's opinion, the ALJ need not expressly address each factor. Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013) (summary order) ("We require no such slavish recitation of each and every factor where the ALJ's reasoning and adherence to the regulation are clear.").
As long as the ALJ provides "good reasons" for the weight accorded to the treating physician's opinion and the ALJ's reasoning is supported by substantial evidence, remand is unwarranted. See Halloran v. Barnhart, supra, 362 F.3d at 32-33; see also Atwater v. Astrue, supra, 512 F. App'x at 70; Petrie v. Astrue, 412 F. App'x 401, 406-07 (2d Cir. 2011) (summary order); Kennedy v. Astrue, 343 F. App'x 719, 721 (2d Cir. 2009) (summary order). "The opinions of examining physicians are not controlling if they are contradicted by substantial evidence, be that conflicting medical evidence or other evidence in the record." Krull v. Colvin, 669 F. App'x 31, 32 (2d Cir. 2016) (summary order) (citation omitted); see also Monroe v. Comm'r of Soc. Sec., 676 F. App'x 5, 7 (2d Cir. 2017) (summary order). The ALJ is responsible for determining whether a claimant is "disabled" under the Act and need not credit a treating physician's determination on this issue where it is contradicted by the medical record. See Wells v. Comm'r of Soc. Sec., 338 F. App'x 64, 66 (2d Cir. 2009) (summary order).
The ALJ may rely on the opinion of a consultative physician where it is supported by substantial evidence in the record. See Richardson v. Perales, supra, 402 U.S. at 410; Camille v. Colvin, 652 F. App'x 25, 27-28 (2d Cir. 2016) (summary order); Diaz v. Shalala, supra, 59 F.3d at 313 n.5; Mongeur v. Heckler, supra, 722 F.2d at 1039.
B. The ALJ's Decision
The ALJ applied the five-step analysis described above and determined that plaintiff was not disabled (Tr. 10-20).
As an initial matter, the ALJ found that plaintiff met the insured status requirements of the Act through December 31, 2019 (Tr. 12).
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date of June 12, 2013 (Tr. 12).
At step two, the ALJ found that plaintiff suffered from the following severe impairments:
[status post] hemilaminectomy and fusion at L3-4; [status post] surgery - mild/moderate left neural foraminal stenosis at L3-4 and mild left neural foraminal stenosis at L4-5 secondary to left lateral broad based disc bulge and enlarged facets; (Pre Surgery) left L3-4 and left L4-5 radiculopathy; intervertebral disc displacement, lumbar without myelopathy; and disc bulges and protrusions at L3-4 through L5-S1.(Tr. 13).
The ALJ also found the following non-severe impairments: (1) borderline diabetes with mellitus that is well controlled and has not caused any complications, (2) hypertension, (3) hypercholesterolemia that has been properly treated with medication and routine care and (4) a subconjunctival hemorrhage of the left eye and headache with no lasting vision or pain problems (Tr. 13). The ALJ took these non-severe impairments into account when ruling on plaintiff's RFC (Tr. 13).
At step three, the ALJ found that plaintiff's disabili- ties did not meet the criteria of the listed impairments and was therefore not entitled to a presumption of disability (Tr. 13). In reaching his conclusion, the ALJ stated that he gave "[s]pecific consideration" to listing 1.04 and "concluded that the medical evidence does not include evidence of nerve root compression, spinal arachnoiditis or lumbar spinal stenosis as the listing requires" (Tr. 13). The ALJ also noted that post-surgery laboratory results confirmed no significant disc herniation or stenosis and there was no evidence that plaintiff was not able to ambulate independently (Tr. 13). Thus, the ALJ concluded that plaintiff's impairments were also not medically equal to listing 1.04 (Tr. 13).
Arachnoiditis is a pain disorder caused by inflammation of the membranes that surround and protect the nerves of the spinal cord, which typically causes a severe stinging or "burning" pain and can lead to neurological problems. Arachnoiditis, The Cleveland Clinic, available at https://my.clevelandclinic.org/health/diseases/12062-arachnoiditis (last visited June 14, 2018)
The ALJ then determined that plaintiff retained the RFC to perform light work with the following limitations:
claimant is limited to occasional climbing ramps and stairs; never climbing ladders, ropes or scaffolds; occasional balancing and stooping; never kneeling, crouching or crawling; and must avoid unprotected heights or hazardous machinery.(Tr. 14). To reach his RFC determination, the ALJ examined the opinions of the treating and consulting physicians and determined the weight to be given to each opinion based on the objective medical record, including the treatment notes of plaintiff's treating physicians (Tr. 14-18).
The ALJ afforded "little weight" to the opinions of Dr. Jacobs, Dr. Bhanusali and Dr. Barrick regarding plaintiff's physical condition prior to June 12, 2013 because these opinions were rendered prior to plaintiff's corrective decompression and fusion surgery (Tr. 15).
With respect to the period after June 12, 2013, the ALJ gave "little weight" to treating physicians Dr. Jacobs' and Dr. Zheng's opinions that plaintiff was "100% disabled" because "the determination of disability is reserved for the Commissioner" and the "opinions were rendered for a different government program with different standards," i.e. workers' compensation (Tr. 15, 17). However, the ALJ went on to give "great weight" to Dr. Jacobs' subsequent opinions, including his August 11, 2015 medical source statement, that plaintiff could constantly stand or sit with proper position changes as needed and that plaintiff did not need a cane to walk (Tr. 16-17).
The ALJ afforded "great weight" to Dr. Bhanusali's opinion that as of August 5, 2013, plaintiff was "able to walk up to half a mile a day" because it was consistent with the corresponding examination results (Tr. 16).
The ALJ gave "significant weight" to Stafford's opinion that as of October 23, 2014, plaintiff could "stand for more than an hour, sit for more than twenty minutes, walk for more than two miles, negotiate stairs, cross her legs, bend, stoop and drive" with rest or breaks when needed (Tr. 16). The ALJ acknowledged that Stafford is not a "recognized source," however his assessment was still given significant weight because it provided a "function-by-function assessment of the [plaintiff's] capabilities" and was used by treating physician Dr. Jacobs in his subsequent opinions (Tr. 16).
The ALJ gave "some weight" to Dr. Jenouri's February 10, 2014 opinion that after a normal physical examination, plaintiff had no restrictions or limitations (Tr. 16). The ALJ noted that while Dr. Jenouri's opinion was consistent with the examination results and other objective medical evidence that showed plaintiff had improved steadily since her surgery, it was inconsistent with medical evidence and treatment notes that showed plaintiff still had some limitations due to her back problems (Tr. 16).
Finally, the ALJ gave "some weight" to Dr. Zheng's opinion that plaintiff had increasing back pain and should be limited in heavy lifting because Dr. Zheng was a treating source and his opinion was consistent with the overall record (Tr. 16).
In reaching his RFC determination, the ALJ also considered plaintiff's testimony and found that while plaintiff's medically determinable impairments could reasonably have caused her alleged symptoms, a review of the entire case record showed that plaintiff's statements regarding their intensity, persistence and limiting effects were not entirely credible (Tr. 17). The ALJ pointed out that plaintiff's description of her daily activities demonstrated that she was not as limited as she claimed (Tr. 17). Plaintiff testified that she is able to drive, which the ALJ found showed an "ability to use hand and foot controls . . . to turn one's head . . . [and] a good degree of concentration and persistence" (Tr. 17). Plaintiff also testified that she is able to live alone, go shopping, engage in crafts and puzzles, do laundry and clean all factors that the ALJ concluded weighed against disability (Tr. 17). The ALJ also considered plaintiff's lack of debilitating symptoms during the hearing as a factor in evaluating her credibility (Tr. 18).
At step four, the ALJ concluded that, because plaintiff is limited to light work, plaintiff is unable to perform her past work as a CNA, which required medium physical exertion (Tr. 18).
At step five, relying on the testimony of the VE, the ALJ found that jobs existed in significant numbers in the national economy that plaintiff could perform, given her RFC, age and education (Tr. 19). The ALJ noted that the VE testified that given plaintiff's age, education, work experience and RFC, plaintiff could perform unskilled light work as an informational clerk, DOT Code 237.367-018, with 981,150 jobs nationally, a counter clerk, DOT Code 249.366-010, with 437,610 jobs nationally and a store facility rental clerk, DOT Code 295.367-026, with 437,610 jobs nationally (Tr. 19). Concluding that the expert's testimony was consistent with information in the DOT, the ALJ determined plaintiff could perform those occupations and, accordingly, was not disabled (Tr. 19).
C. Analysis of the ALJ's Decision
Plaintiff contends that the ALJ's disability determination was erroneous because (1) there was substantial evidence in the record that plaintiff met or was medically equal to listing 1.04(A) and (C); (2) the ALJ's RFC determination was not supported by substantial evidence because the ALJ violated the treating physician rule and improperly evaluated plaintiff's credibility and (3) the job descriptions that the VE relied on during his testimony were outdated (Memorandum of Law in Support of Plaintiff's Motion for Remand for Further Administrative Proceedings, dated Jan. 8, 2018 (D.I. 15) ("Pl. Mem.")). The Commissioner contends that ALJ Cascio's decision was supported by substantial evidence and should be affirmed (Memorandum of Law in Support of Defendant's Cross-Motion for Judgment on the Pleadings and in Opposition to Plaintiff's Motion for Judgment on the Pleadings, dated May 1, 2018 (D.I. 22) ("Def. Mem.")).
As described above, the ALJ went through the sequential process required by the regulations. The ALJ's analysis at steps one, two and four were decided in plaintiff's favor, and the Commissioner has not challenged those findings. I shall, therefore, limit my discussion to addressing whether ALJ Cascio's analysis at steps three and five complied with the applicable legal standards and were supported by substantial evidence.
1. Step 3: the Listings
At step three, ALJ Cascio found that none of plaintiff's impairments, either singularly or in combination, were severe enough to meet or medically equal the impairments listed in Section 1.04 (Tr. 13, citing 20 C.F.R. Pt. 404, Subpt. P, App. 1). To show that an impairment meets or is medically equal to a listing, a claimant must show that his or her impairments "meet all of the specified criteria." Sullivan v. Zebley, supra, 493 U.S. at 530; accord Solis v. Berryhill, 692 F. App'x 46, 48 (2d Cir. 2017); King v. Astrue, 32 F. Supp. 3d 210, 218 (N.D.N.Y. 2012). If a claimant's impairment "manifests only some of those criteria, no matter how severely," the impairment does not qualify. Sullivan v. Zebley, supra, 493 U.S. at 530; see also Scully v. Berryhill, 282 F. Supp. 3d 628, 636 (S.D.N.Y. 2017) (Gorenstein, M.J.). To satisfy this burden, a claimant must show abnormal physical findings that "must be determined on the basis of objective observation during the examination and not simply a report of the individual's allegation." 20 C.F.R. pt. 404, Subpt. P, App. 1, § 1.00(D).
Section 1.04 addresses disorders of the spine and requires a showing of a "compromise of a nerve root . . . or the spinal cord" with one or more of the following:
(A) Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine); or20 C.F.R. pt. 404, Subpt. P, App. 1, § 1.04.
* * *
(C) Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively.
The ALJ found the medical record did not include evidence of nerve compression or lumbar spinal stenosis "as the listing requires" (Tr. 13). The ALJ stated he based this conclusion on the fact that plaintiff's "post-operative laboratory results showed no significant disc herniation or stenosis" and that plaintiff is still able to "ambulate independently" and "retains functioning in her lower extremities" (Tr. 13).
Plaintiff maintains that remand is required because the ALJ did not properly explain or support his analysis that plaintiff did not meet or medically equal Section 1.04, there was substantial evidence that plaintiff met the criteria listed in Paragraphs (A) and (C) of the listing and that the ALJ erred in not calling a medical expert to explain the concept of medical equivalence (Pl. Mem. at 16-18).
Although the ALJ could have been more thorough in his analysis, remand is not mandated because, as explained below, the ALJ's "general conclusion [that plaintiff did not meet the listed impairments] is supported by substantial evidence." See Solis v. Berryhill, supra, 692 F. App'x at 48; see also Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982) ("[T]he absence of an express rationale does not prevent us from upholding the ALJ's determination regarding appellant's claimed listed impairments, since portions of the ALJ's decision and the evidence before him indicate that his conclusion was supported by substantial evidence.").
a. Section 1.04(A)
Plaintiff contends that she meets the impairments in Section 1.04(A) because there is evidence of nerve compression in the record. Specifically, plaintiff cites to her March 14, 2012 MRI, which indicated a "mild impingement of the exiting left L3 nerve root" and her January 2, 2014 MRI, which showed disc bulges that "abutted" the exiting left L3 and L4 nerve root (Tr. 286, 256-57). Plaintiff also argues that she tested positively for pain on the straight leg raising test multiple times both before and after surgery and that there were intermittent examinations in which her motor and sensory skills were found to be diminished (Pl. Mem. at 16-17).
Although not indicated on the MRI report, Dr. Jacobs went on to diagnose plaintiff with a herniated disc at L3-4 compressing the left L4 nerve root after reviewing the MRI (Tr. 290). This discrepancy was not addressed in the ALJ's opinion.
While the ALJ may have erred in stating there was no evidence in the record of nerve compression, any such error was harmless because a review of the overall treatment period supports the finding that not all the criteria listed in Section 1.04(A) were met and the ALJ's ruling is, therefore, supported by substantial evidence. See King v. Astrue, supra, 32 F. Supp. 3d at 219 (remand not required where ALJ "erred in failing to explicitly reconcile [a] conflict in the record" concerning Section 1.04(A) because even with this error, there was substantial evidence to show plaintiff did not meet all of the required criteria).
First, while, as stated above, there appears to be some evidence of possible nerve compression in the record, the physician who interpreted plaintiff's MRIs described this "impingement" as "mild" and "only minimal" (Tr. 286, 315).
Second, any evidence of nerve compression was not accompanied by all the aggravating factors required by Section 1.04 -- namely, motor loss accompanied by sensory or reflex loss. After plaintiff's surgery, her motor skills tested normal with no muscle atrophy during eleven out of her thirteen visits with Dr. Jacobs (Tr. 351, 354, 357, 365-66, 372, 374-78, 382, 386-91). During the majority of these physical examinations, plaintiff also did not exhibit any sensory or reflex loss. Dr. Jenouri reached a similar conclusion during his examination of plaintiff, noting her "rapid alternating movements were normal," she had "no muscle atrophy" and her sensations and reflexes were normal (Tr. 281-82). Plaintiff told Dr. Jenouri that she was able to cook, clean, dress, bathe, do her laundry, and go grocery shopping without assistance (Tr. 280). Plaintiff testified to being able to engage in these same activities at the hearing (Tr. 42). Her January 30, 2014 EMG/NCV study was also normal with no signs of radiculopathy, neuropathy or myopathy (Tr. 369).
Atrophy refers to wasting away or diminution of the muscle. Dorland's at 175-76.
Third, plaintiff's multiple positive straight raising leg tests are not determinative. While there were approximately thirteen positive straight leg raising tests in the record, there were also approximately nine negative straight leg raising tests (Tr. 210, 269, 289, 312, 365-66, 397, 496, 503, 508, 513, 588, 615, 641-42, 738, 771-72, 823, 825, 846). Moreover, even if that were not the case, multiple positive straight leg tests, without more, do not meet all of the specified criteria required by Section 1.04(A). Solis v. Berryhill, supra, 692 F. App'x at 48; see also King v. Astrue, supra, 32 F. Supp. 3d at 219-20 (evidence of nerve compression along with multiple instances of a positive straight leg tests does not satisfy Section 1.04(A) if there is not sufficient evidence of motor loss accompanied by sensory loss or reflex loss).
Admittedly, there is some evidence that supports that plaintiff may have met or been medically equal to Section 1.04(A). However, where, as here, there are intermittent changes in a claimant's condition and conflicts in medical evidence, "it is the ALJ's decision that controls as factfinder." King v. Astrue, supra, 32 F. Supp. 3d at 220, citing Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983). So long as the "Commissioner's decision rests on adequate findings supported by evidence having rational probative force [the court must] not substitute [its] judgment for that of the Commissioner." Veino v. Barnhart, 312 F.3d 578 (2d Cir. 2002). Furthermore, the Second Circuit has explicitly held that "[w]here there is substantial evidence to support either [the claimant's or the ALJ's position], the determination is one to be made by the factfinder." Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); accord Scully v. Berryhill, supra 282 F. Supp. 3d at 636 (ALJ's decision upheld where medical evidence could support either finding that claimant did or did not have nerve root compression); Knight v. Astrue, supra, 32 F. Supp. 3d at 219-20 (ALJ's decision upheld even though there were intermittent test results indicating some motor loss because the majority of physical examinations showed normal motor skills); Johnson v. Astrue, 563 F. Supp. 2d 444, 454 (S.D.N.Y. 2008) (Gorenstein, M.J.) ("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.").
Thus, plaintiff is not entitled to remand because substantial evidence supports ALJ Cascio's's determination that plaintiff did not have an impairment or combination of impairments under Section 1.04(A).
b. Section 1.04(C)
Plaintiff's argument that she met the listings in Section 1.04(C) is without merit because it is clear from the record that plaintiff was able to ambulate independently. "Inability to ambulate effectively" is "defined generally as having insufficient lower extremity functioning . . . to permit ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities." 20 C.F.R. pt. 404, Subpt. P, App. 1, § 1.00(B)(2)(b)(1). The regulations provide that examples of "ineffective ambulation" include:
the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail20 C.F.R. pt. 404, Subpt. P, App. 1, § 1.00(B)(2)(b)(2).
Plaintiff's gait and station were normal at every physical examination throughout the entire record. On August 5, 2013, Dr. Bhanusali found that plaintiff was able to walk up to half a mile a day, even though she was still showing symptoms of degenerative disc disease (Tr. 426). On February 10, 2014, Dr. Jenouri recommended that plaintiff use a cane when outside or in pain, but opined that plaintiff was able to walk without assistance and able to get up from her chair without difficulty (Tr. 280). Plaintiff was examined by her primary treating physician, Dr. Jacobs, the very next day who stated that she presented with normal gait and station and noted she was walking without difficulty (Tr. 244-46). Over a year later on August 11, 2015, Dr. Jacobs, opined that plaintiff did not require the use of a cane to ambulate effectively (Tr. 998). Treatment notes from plaintiff's physical therapy sessions after surgery also indicate that plaintiff had no abnormalities or difficulty ambulating (Tr. 541- 50). These medical opinions combined with plaintiff's own testimony that she is able to carry out routine ambulatory activities and walks about a mile per day support the ALJ's finding that plaintiff did not meet all criteria of Section 1.04(C).
Thus, substantial evidence supports ALJ Cascio's determination that plaintiff did not have an impairment or combination of impairments meeting the Listings in 20 C.F.R. Part 404, Subpart P, Appendix 1 and, thus, was not entitled to a finding of disability per se.
c. No Medical Expert
Plaintiff's argument that the ALJ erred by not calling a medical expert to address the issue of medical equivalence to the listings similarly fails. While an ALJ has an obligation to fully develop the record, it is well established that "where there are no obvious gaps in the administrative record, and where the ALJ already possesses a 'complete medical history,' the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim." Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999), quoting Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996).
Furthermore, "the regulations do not require that the ALJ seek an opinion of a medical expert at step three." Mastrobattista v. Comm'r of Social Sec., 15 CV 1253 (GTS/WBC), 2016 WL 7669503 at *6 (N.D.N.Y. Dec. 14, 2016) (Report & Recommendation), adopted at, 2017 WL 90364 (N.D.N.Y. Jan. 10, 2017); see also Scully v. Berryhill, supra, 282 F. Supp. 3d at 636 (ALJ under no obligation to call a medical expert to clarify if plaintiff met or was medically equal to Section 1.04); Velez v. Colon, 15 Civ. 0487 (SAS), 2015 WL 8491485 at *9-*10 (S.D.N.Y. Dec. 9, 2015) (Scheindlin, D.J.) (ALJ under no obligation to seek an expert medical opinion); Van Valkenberg ex rel. B.G. v. Astrue, 08 CV 0959 (DNH/VEB), 2010 WL 2400455 at *17 (N.D.N.Y. May 27, 2010) (Report & Recommendation), adopted at, 2010 WL 2400443 (N.D.N.Y. June 10, 2010) ("[T]he regulations leave calling a medical expert to the discretion of the ALJ.").
Rather, the regulations contain permissive language, stating that an ALJ "may . . . ask for and consider opinions from medical experts on the nature and severity of a [claimant's] impairment(s) and on whether [her] impairment(s) equals the requirements of any impairment in the listings. 20 C.F.R. § 404.1527(e)(2)(iii) (emphasis added); see also Rivera v. Comm'r Soc. Sec., 15 Civ. 8439 (GBD)(HBP), 2017 WL 120974 at *10 (S.D.N.Y. Jan. 12, 2017) (Pitman, M.J.) (Report & Recommendation), adopted at, 2017 WL 946296 (S.D.N.Y. Mar. 9, 2017) (Daniels, D.J.); Carter v. Comm'r of Soc. Sec., No. 06-CV-186C(F), 2008 WL 1995122 at *5 (W.D.N.Y. May 6, 2008).
The ALJ had a full administrative record here with medical records from more than seven different healthcare providers who treated or examined plaintiff over the three-year period prior to the hearing. Thus, the ALJ was under no obligation to call or consult with a medical expert during his step three analysis.
2. Step 3: the ALJ's RFC Determination
Plaintiff next contends that the ALJ's determination that plaintiff had the RFC to do "light work" is not supported by substantial evidence (Pl. Mem. at 18-19). However, rather than citing to any evidence that contradicts this finding, plaintiff relies on the fact that Dr. Jacobs and Stafford failed to measure plaintiff's ability to "stoop" during their functional evaluations and, thus, it was impossible for the ALJ to find plaintiff could perform light work (Pl. Mem. at 18). Plaintiff's claim is without merit.
First, plaintiff is factually incorrect because Stafford opined that plaintiff was able to "stoop," and the ALJ relied on this assessment in making his RFC determination (see Tr. 16).
In any event, a review of the entire record shows that the ALJ's RFC determination is supported by substantial evidence. Dr. Jacobs' post-surgery records indicate that plaintiff had normal movement in her hips and lower extremities (Tr. 242, 245, 254, 276, 378, 381, 384, 387, 390). These findings were confirmed by the January 30, 2014 objective EMG test (Tr. 369). Dr. Jacobs opined that plaintiff could continuously lift and carry up to ten pounds and could frequently lift and carry up to twenty pounds (Tr. 997). He also stated that she could constantly sit, stand and walk, but "may need to switch positions as needed," and that she could continuously climb stairs and ramps, but "with rest as needed" (Tr. 998-1000).
Additionally, Dr. Bhanusali opined that post-surgery, plaintiff was able to walk up to a half a mile a day -- an opinion confirmed by plaintiff's own testimony that she tries to walk "at least a mile every day" (Tr. 426, 38). Stafford noted that plaintiff could constantly sit, stand and walk with proper breaks and seating adjustments and could climb stairs, bend, stoop and drive with assistance as needed (Tr. 966-67, 1004).
These assessments constitute substantial evidence supporting the ALJ's determination that plaintiff was capable of performing "light work." See 20 C.F.R. § 404.1567(b) ("Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying objects weighing up to 10 pounds."); see also SSR 83-10, 1983 WL 31251 at *6 (Jan. 1, 1983) ("the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday").
a. The Treating Physician Rule
Plaintiff also appears to argue that the ALJ violated the treating physician rule in reaching his RFC determination because he "insisted on crediting and giving great weight to Dr. Bhanusali's opinion over the opinion of treating neurosurgeon Dr. Jacobs" (Pl. Mem. at 20). The ALJ did no such thing. To the contrary, the ALJ actually gave "great weight" to Dr. Jacobs' August 11, 2015 opinion and heavily relied on that analysis in making his RFC determination (Tr. 16-17). He also gave "great weight" to Dr. Bhanusali's August 5, 2013 opinion that although plaintiff was symptomatic and experiencing decreased range of motion, she could walk up to a half a mile a day (Tr. 426-27). Plaintiff is correct that the ALJ afforded "light weight" to some of Dr. Jacobs' opinions in 2012 and early 2013, however, he also gave "little weight" to Dr. Bhanusali's opinion during that same time period because they were given prior to plaintiff's surgery and alleged date of disability (Tr. 15). Plaintiff's lumbar decompression and fusion surgery was intended to improve plaintiff's degenerative disc disease, and a review of the overall record indicates that plaintiff's condition did in fact improve post-surgery, Thus, it was entirely reasonable to give more weight to opinions rendered after this corrective surgery was performed.
Not only did the ALJ not violate the treating physician rule because both Dr. Jacobs' and Dr. Bhanusali's opinions were given equal weight, but these two physicians' opinions were not wholly inconsistent with one another. Before and after June 12, 2013, Dr. Jacobs and Dr. Bhanusali noted plaintiff's reported pain and limitations and both opined that she was capable of doing "light duty type work" (Tr. 415-19, 424-27, 997-1002).
Plaintiff further argues that the ALJ erred in affording only "little weight" to those opinions of Dr. Jacobs that found plaintiff to be "100% disabled" and, thus, cherry picked "pieces of opinions that supported his RFC" (Pl. Mem. 19-23). However, it is well established that the opinion provided in a workers' compensation claim, such as that in issue here, is not controlling with respect to a claim of disability claim under the Act. See Mangum v. Colvin, 13 Civ. 4213 (KPF), 2015 WL 629403 at *11 n.13 (S.D.N.Y. Feb. 13, 2015) (Failla, D.J.) ("[T]he characterization of Plaintiff as 'disabled' by medical providers for purposes of his Workers' Compensation claim is not particularly useful in the Social Security context because the two statutory schemes have completely different definitions of disability."); Flanigan v. Colvin, 21 F. Supp. 3d 285, 308 & n.27 (S.D.N.Y. 2014) (Peck, M.J.) (collecting cases); Simmons v. Colvin, 13 Civ. 1724 (KBF), 2014 WL 104811 at *7 n.5 (S.D.N.Y. Jan. 8, 2014) (Forrest, D.J.) ("'[T]he standards which regulate workers' compensation relief are different from the requirements which govern the award of disability insurance benefits under the Act,' and 'an opinion rendered for purposes of workers' compensation is not binding on the [Commissioner].'" (citation omitted)); DeJesus v. Chater, 899 F. Supp. 1171, 1177 (S.D.N.Y. 1995) (Koeltl, D.J.) ("The issue is whether a person is disabled as that term is defined under the Social Security Act, not whether a person is 'disabled' or 'partially disabled' for purposes of workers' compensation.").
Furthermore, it is equally well established that an ALJ is free to accept part of a medical source's opinion and reject another part. See Camille v. Colvin, supra, 652 F. App'x at 29 n.5 ("An ALJ may accept parts of a doctor's opinion and reject others."); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (permissible for an ALJ to credit only part of a treating physician's opinion); accord Williams v. Berryhill, 17-CV-0383 (CFH), 2018 WL 987257 at *5 (N.D.N.Y. Feb. 20, 2018); Tilves v. Acting Comm'r of Soc. Sec., 17 Civ. 0824 (ER)(KHP), 2017 WL 6942654 at *17 (S.D.N.Y. Dec. 20, 2017) (Parker, M.J.) (Report & Recommendation), adopted at, 2018 WL 401514 (S.D.N.Y. Jan. 12, 2018) (Ramos, D.J.).
The ALJ properly afforded "little weight" to Dr. Jacobs' opinions that plaintiff was 100% disabled for purposes of workers' compensation and "great weight" to his functional assessments and observations of plaintiff during numerous physical examinations post-surgery (Tr. 15-17). Thus, the ALJ did not violate the treating physician rule and remand is unwarranted on this ground.
b. Plaintiff's Credibility
The ALJ also considered plaintiff's subjective complaints about her condition in making his RFC determination. In Genier v. Astrue, supra, 606 F.3d at 49, the Second Circuit set out the framework an ALJ must follow in assessing the credibility of a plaintiff's subjective complaints when making an RFC finding:
When determining a claimant's RFC, the ALJ is required to take the claimant's reports of pain and other limitations into account, 20 C.F.R. § 416.920; see McLaughlin v. Sec'y of Health, Educ. & Welfare, 612 F.2d 701, 704-05 (2d Cir. 1980), but is not required to accept the claimant's subjective complaints without question; he may exercise discretion in weighing the credibility of claimant's testimony in light of the other evidence in the record. Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1978).
The regulations provide a two-step process for evaluating a claimant's assertions of pain and other limitations. At the first step, the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged. 20 C.F.R. § 404.1529(b). That requirement stems from the fact that subjective assertions of pain alone cannot ground a finding of disability. 20 C.F.R. § 404,1529(a). 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. The ALJ must consider "[s]tatements [the claimant] or others make about [his] impairment(s), [his] restrictions, [his] daily activities, [his] efforts to work, or any other relevant statements [he] make[s] to medical sources during the course of examination or treatment, or to [the agency] during interviews, on applications, in letters, and in testimony in [its] administrative proceedings."20 C.F.R. § 404.1512(b)(3); see also 20 C.F.R. § 404.1529(a); S.S.R. 96-7p, 1996 WL 374186 at *1 (July 2, 1996). An ALJ's credibility determination is entitled to deference. See Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999) ("After all, the ALJ is in a better position to decide issues of credibility.").
Applying the two-part framework, and referring specifically to SSR 96-7p, supra, the ALJ found that "after careful consideration of the evidence . . . [plaintiff's] medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms [were] not wholly credible" (Tr. 17). Specifically, the ALJ found that plaintiff's description of her daily activities supported a finding that she had the RFC to perform light work, plaintiff displayed no debilitating symptoms during the hearing and that her treatment had been "essentially routine" (Tr. 17- 18). Plaintiff argues that the ALJ erred in his assessment of her credibility because her list of daily activities did not support a light work RFC, the ALJ was not permitted to use her physical demeanor during the hearing as a factor in assessing her credibility and her treatment was not "routine" (Memorandum of Law in Opposition to Defendant's Cross-Motion for Judgment on the Pleadings and in Further Support of Plaintiff's Motion for Remand for Further Administrative Proceedings, dated May 22, 2018 (D.I. 24) ("Pl. Reply Mem.") at 6-9).
The ALJ also stated that "the record does not contain any non-conclusory opinions, supported by clinical or laboratory evidence, from treating or examining physicians indicating that the claimant is currently disabled" as a reason for not wholly crediting plaintiff's statements regarding the extent of her symptoms (Tr. 17-18). This finding is supported by substantial evidence as discussed above at page 64-65.
Plaintiff's testimony as to the severity of her impairments was inconsistent with her daily activities, which, as discussed above, included driving, cooking, cleaning, shopping, taking care of plants and walking "at least a mile every day" (Tr. 38, 42-43). Furthermore, plaintiff's claim that she needed a cane to ambulate and that she was prescribed a walker by Dr. Jacobs is contradicted by the record (Tr. 38-39). Dr. Jacobs specifically opined that plaintiff did not require cane and it does not appear that plaintiff was ever prescribed a walker by any of her physicians. Thus, the ALJ properly found that plaintiff's statements as to the limiting effects of her symptoms were not wholly credible and that her list of daily activities supported a light work RFC finding.
Plaintiff's argument that the ALJ is not allowed "to consider Plaintiff's demeanor at the hearing and then make a judgment, from that demeanor, that Plaintiff is not credible" is patently incorrect (Pl. Reply Mem. at 9). The Second Circuit has explicitly held that an ALJ may "take account of a claimant's physical demeanor in weighing the credibility of her testimony as to physical disability" so long as this observation is given "limited weight" and is "one of several factors in evaluating credibility." Schaal v. Apfel, supra, 134 F.3d at 502. "Thus, the ALJ, 'after weighing objective medical evidence, the claimant's demeanor, and other indicia of credibility . . . may decide to discredit the claimant's subjective estimation of the degree of impairment.'" Valdez v. Colvin, 232 F. Supp. 3d 543, 552 (S.D.N.Y. 2017) (Gorenstein, M.J.), quoting Tejada v. Apfel, supra, 167 F.3d at 775-76. In fact, "[d]eference should be accorded the ALJ's [credibility] determination because he heard plaintiff's testimony and observed [her] demeanor." Gernavage v. Shalala, 882 F. Supp. 1413, 1419 n.6 (S.D.N.Y. 1995) (Leisure, D.J.); accord Jones v. Comm'r. of Soc. Sec., 14 Civ. 7856 (KBF), 2016 WL 6248443 at *9 (S.D.N.Y. Oct. 26, 2016) (Forrest, D.J.); Gomez v. Comm'r of Soc. Sec., 14 Civ. 7207 (PAE)(FM), 2016 WL 3938161 at *14 (S.D.N.Y. July 18, 2016) (Engelmayer, D.J.).
The ALJ noted that "[w]hile the hearing was short-lived and cannot be considered a conclusive indicator of the [plain- tiff's] overall level of functioning on a day-to-day basis, the apparent lack of debilitating symptoms during the hearing is a permissible factor to consider amongst other factors in reaching the conclusion regarding the credibility of the [plaintiff's] allegations and the [plaintiff's] residual functional capacity" (Tr. 18). Thus, the ALJ's assessment of plaintiff's demeanor during the hearing was entirely proper based on the legal principles outlined above.
Plaintiff is correct that the ALJ may have minimized the seriousness of her treatment by characterizing her lumbar decompression surgery and potential neurostimulator treatment as routine. However, any alleged error in this description was harmless and does render the ALJ's overall credibility analysis or RFC determination deficient because it was only one aspect of the ALJ's credibility assessment that was otherwise supported by substantial evidence. See Phelps v. Colvin, 20 F. Supp. 3d 392, 404-05 (W.D.N.Y. 2014) (any alleged error the ALJ made in not assigning a specific weight to a lay witness' testimony did not render the overall credibility assessment deficient because even if the error had not been made, it would have led to the same conclusion); Schlichtinq v. Astrue, 11 F. Supp. 3d 190, 207 (N.D.N.Y. 2012) (one error in ALJ's credibility assessment did not require remand where the overall decision to not credit all of plaintiff's statements was supported by the record); Barringer v. Comm'r of Soc. Sec., 358 F. Supp. 2d 67, 82 n.26 (N.D.N.Y. 2005) (ALJ's misstatement in the record about one of plaintiff's daily activities constituted harmless error because the overall credibility assessment was supported by other substantial evidence).
Therefore, to the extent the ALJ's RFC findings rested on his determination of plaintiff's credibility, it was "within the discretion of the [Commissioner] to evaluate the credibility of plaintiff's complaints and render an independent judgment in light of the medical findings and other evidence regarding the true extent of such symptomology." Gernavage v. Shalala, 882 F. Supp. 1413, 1419 (S.D.N.Y. 1995) (Leisure, D.J.); accord Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984).
Thus, because the ALJ's RFC determination was supported by substantial evidence, he did not violate the treating physician rule and he properly took into consideration plaintiff's subjective statements, the ALJ committed no error that requires remand.
3. Step 5: the ALJ's Reliance on DOT's Job Descriptions
Finally, plaintiff contends that because the DOT's job descriptions of an informational clerk, a counter clerk and a store facility rental clerk have not been updated in approximately thirty years, the VE and the ALJ improperly relied on them in determining whether plaintiff could perform other work (Pl. Mem. at 19). This argument is also without merit.
Plaintiff also argues that remand is warranted because "Plaintiff had waived her right to Counsel without knowing there would be an opportunity to cross-examine the VE about these issues" (Pl. Mem. at 19). This argument is incomprehensible given that plaintiff was represented by counsel at her hearing and plaintiff's counsel specifically cross-examined the VE (Tr. 54-55).
The regulations specifically provide that an ALJ will take administrative notice of "reliable job information" available from various publications, including "Dictionary of Occupational Titles, published by the Department of Labor." See 20 C.F.R. § 404.1566(d)(1) ("[ALJ] will take notice of [DOT] when determining if there are jobs suitable in the national economy for claimant . . . ."). The Second Circuit has held that "DOT is so valued that a [VE] whose evidence conflicts with the DOT must provide a 'reasonable explanation' to the ALJ for the conflict." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 446 (2d Cir. 2012), citing SSR 00-4P, 2000 WL 1898704 at *1 (Dec. 4, 2000); see also Allen v. Comm'r of Soc. Sec., 16-CV-1207 (WBC), 2017 WL 6001830 at *7 (N.D.N.Y. Dec. 4, 2017) (specifically rejecting plaintiff's argument that DOT job title descriptions are outdated).
Thus, the ALJ's and the VE's reliance on DOT's descriptions of an informational clerk, a counter clerk and a store facility rental clerk as other jobs plaintiff could perform was proper.
IV. Conclusion
Accordingly, for all the foregoing reasons, I respectfully recommend that the Commissioner's motion for judgment on the pleadings be granted and that plaintiff's motion be denied.
V. Objections
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Colleen McMahon, United States District Judge, 500 Pearl Street, Room 2550, New York, New York 10007., and to the Chambers of the undersigned, 500 Pearl Street, Room 1670, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge McMahon. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Am, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983) (per curiam). Dated: New York, New York
July 18, 2018
Respectfully submitted,
/s/_________
HENRY PITMAN
United States Magistrate Judge Copies transmitted to: All Counsel