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finding that the ALJ properly assessed the claimant's eligibility for the Listings 12.04 an d12.06 where the evidence showed he had no restrictions in activities of daily living, and only moderate difficulties in social functioning, maintaining concentration, persistence, and pace
Summary of this case from Deinna G. v. SaulOpinion
6:16-CV-0484 (TWD)
06-29-2017
RAYMOND VARGAS, Plaintiff, v. COMM'R OF SOC. SEC., Defendant.
APPEARANCES: RAYMOND VARGAS Plaintiff, Pro Se 7700 Stone Road Whitesboro, NY 13492 U.S. SOCIAL SECURITY ADMIN. OFFICE OF REG'L GEN. COUNSEL - REGION II Counsel for Defendant 26 Federal Plaza, Room 3904 New York, NY 10278 OF COUNSEL: HEETANO SHAMSOONDAR, ESQ.
APPEARANCES: RAYMOND VARGAS
Plaintiff, Pro Se
7700 Stone Road
Whitesboro, NY 13492 U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG'L GEN. COUNSEL - REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278 OF COUNSEL: HEETANO SHAMSOONDAR,
ESQ. THÉRÈSE WILEY DANCKS, United States Magistrate Judge DECISION and ORDER
Currently before the Court, in this Social Security action filed by Raymond Vargas ("Plaintiff") against the Commissioner of Social Security ("Defendant" or "the Commissioner") pursuant to 42 U.S.C. §§ 405(g), is Defendant's motion for judgment on the pleadings. (Dkt. No. 20.) For the reasons set forth below, Defendant's motion for judgment on the pleadings is granted. The Commissioner's decision denying Plaintiff's disability benefits is affirmed, and Plaintiff's Complaint is dismissed.
I. RELEVANT BACKGROUND
A. Factual Background
Plaintiff was born in 1968, making him 43 years old at his alleged onset date and 48 years old at the date of the final Social Security Administration ("SSA") decision. Plaintiff has an 11th grade education and past relevant work as a construction worker. Generally, Plaintiff alleges disability consisting of left knee instability, hearing loss, artery damage, and history of three gunshot wounds.
B. Procedural History
Plaintiff applied for Disability Insurance Benefits on December 13, 2011. Plaintiff's application was initially denied on March 7, 2012, after which he timely requested a hearing before an Administrative Law Judge ("ALJ"). Plaintiff appeared at hearings before ALJ Eric W. Borda on June 27, 2012, and September 12, 2012. On December 21, 2012, ALJ Borda issued a written decision finding Plaintiff not disabled under the Social Security Act. (T. 132-141.) On April 8, 2014, the Appeals Council remanded for evaluation of Plaintiff's obesity, to obtain additional evidence related to Plaintiff's knee impairment, to obtain clarification from a medical expert (if necessary), to give further consideration to the RFC, and to obtain evidence from a vocational expert. (T. 146-47.) Plaintiff attended subsequent hearings with ALJ Bruce Fein on July 31, 2014, and June 11, 2015. On August 25, 2015, ALJ Fein issued a written decision finding Plaintiff not disabled under the Social Security Act. (T. 14-24.) On March 18, 2016, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (T. 1-3.)
The Administrative Transcript is found at Dkt. No. 11. Citations to the Administrative Transcript will be referenced as "T." and the Bates-stamped page numbers as set forth therein will be used rather than the page numbers assigned by the Court's CM/ECF electronic filing system.
C. The ALJ's Decision
Generally, in his decision, the ALJ made the following seven findings of fact and conclusions of law. (T. 13-21.) First, the ALJ found that Plaintiff was insured for disability benefits under Title II of the Social Security Act until December 31, 2016. (T. 16.) Second, the ALJ found that Plaintiff has not engaged in substantial gainful activity since March 16, 2011, the alleged onset date. (T. 17.) Third, the ALJ found that Plaintiff's status post-bilateral knee and left wrist surgery, status-post right ankle fracture, osteoarthritis, intermittent explosive disorder, and mood disorder (not otherwise specified) are severe impairments, while his status-post gunshot wounds, left-sided hearing loss, reported nerve damage, arterial damage, and obesity are non-severe impairments. (T. 17-18.) Fourth, the ALJ found that Plaintiff's severe impairments do not meet or medically equal one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the "Listings"). (T. 18-19.) More specifically, the ALJ considered Listing 1.02 (major dysfunction of a joint), 1.06 (fracture of the femur, tibia, pelvis, or one or more of the tarsal bones), 12.02 (organic mental disorders), 12.04 (affective disorders), 12.05 (intellectual disability), and 12.06 (anxiety-related disorders). Id. Fifth, the ALJ found that Plaintiff has the residual functional capacity ("RFC") to
lift/carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk for 6 hours out of an 8 hour workday with normal breaks; sit for 6 hours out of an 8 hour workday with normal breaks; occasionally climb (all other), stoop, balance, kneel, crouch, and crawl but never climb ropes, ladders, and scaffolds; should avoid concentrated exposure to excessive vibrations and extreme cold; and is limited to a low stress job defined as involving only occasional decision-making, changes in work setting, judgment required, and interaction with co-workers, supervisors, and the public.(T. 20.) Sixth, the ALJ found that Plaintiff has past relevant work as a construction worker, but that the limitations in the RFC assessment prevent him performing this work. (T. 22.) Seventh, and finally, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, including marker II, small products assembler, and mail clerk. (T. 23.)
D. Defendant's Brief and Plaintiff's Failure to File a Brief
Plaintiff, proceeding pro se, did not file a brief in this matter despite being afforded multiple opportunities to do so. (Dkt. Nos. 12, 14-15, 17.) The Court is entitled to consider the record without the benefit of any arguments he might have asserted. (See General Order #18 at 7.)
Generally, Defendant asserts three arguments in support of her motion for judgment on the pleadings. First, Defendant argues that Plaintiff's impairments do not meet or equal an impairment in the Listings. (Dkt. No. 20 at 16-19.) Second, Defendant argues that the ALJ's RFC assessment is supported by substantial evidence. Id. at 19-24. More specifically, Defendant argues that the ALJ properly considered and weighed the medical opinion evidence and properly found that Plaintiff's allegations were not entirely credible because the medical evidence and Plaintiff's reported activities were inconsistent with disability. Id. Third, and last, Defendant argues that the ALJ's Step Five finding that Plaintiff remains able to perform a significant number of jobs in the national economy is supported by substantial evidence, including the vocational expert's testimony. Id. at 24-25.
Page numbers in citations to Defendant's brief refer to the actual page numbers of the brief rather than the page number assigned by the Court's electronic filing system.
II. RELEVANT LEGAL STANDARD
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only if the correct legal standards were not applied, or it was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); see also Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). "Substantial evidence" is evidence that amounts to "more than a mere scintilla," and has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation and citation omitted). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
"To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B. Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920. The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform. Under the cases previously discussed, the claimant bears the burden of proof as to the first four steps, while the [Commissioner] must prove the final one.Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982), accord McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). "If at any step a finding of disability or nondisability can be made, the SSA will not review the claim further." Barnhart v. Thomas, 540 U.S. 20, 24 (2003).
III. ANALYSIS
A. Whether the ALJ Properly Determined That Plaintiff's Impairments Do Not Meet or Equal a Listed Impairment
After carefully considering the matter, the Court answers this question in the affirmative for the reasons stated in Defendant's memorandum of law. (See Dkt. No. 20 at 16-19.) To those reasons, the Court adds the following analysis.
A plaintiff will be found disabled if the individual has an impairment or combination of impairments that meets or equals one of the Listings, and meets the duration requirement. 20 C.F.R. § 404.1520(d). The burden is on the plaintiff to present medical findings that his or her impairments match a Listing or are equal in severity to a Listing. Davis v. Astrue, 6:09-CV-0186 (LEK/GHL), 2010 WL 2545961, at *3 (N.D.N.Y. June 3, 2010). A plaintiff must show that his or her impairment meets or equals all of the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (superceded by statute on other grounds). If a plaintiff's impairment "manifests only some of those criteria, no matter how severely," the impairment does not qualify. Id. Additionally, while an ALJ "should set forth a sufficient rationale in support of his decision to find or not to find a listed impairment," the absence of an express rationale for an ALJ's conclusions does not prevent a court from upholding them so long as we are "able to look to other portions of the ALJ's decision and to clearly credible evidence in finding that his determination was supported by substantial evidence." Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982).
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
The ALJ found that Plaintiff's impairments did not meet or equal any of the applicable Listings, discussing specific Listing sections and providing reasons based on the evidence in the record as to why Plaintiff did not meet the criteria of those Listing sections. (T. 18-19.) These explanations are clear and provide this Court with sufficient information to determine the ALJ's rationale.
In this case, the record does not show that Plaintiff meets all the criteria of any of the applicable Listings. In terms of Listing 1.02, there was no evidence that Plaintiff required an assistive device to ambulate other than during the period immediately following the various treatments for his gunshot wounds. Although consultative examiner Sharon Revan, M.D., observed that Plaintiff had a limp to the left, was unable to walk on his heels and toes, and had some warmth and swelling in his right knee with pain on range of motion, she opined only a mild limitation in his ability to walk. (T. 581-83.) Additionally, although consultative examiner Tanya Perkins-Mwantuali, M.D., opined a moderate-to-marked limitation for walking (which she quantified as two hours out of an eight-hour workday) based on her examination findings, this still does not substantiate an inability to ambulate effectively. (T. 834, 838.) While some examinations did reveal diminished strength in Plaintiff's lower extremities related to his knees, these findings do not indicate that he was unable to ambulate effectively. (See e.g., T. 1736, 1741, 1747, 1753, 1757.) Additionally, while some examinations showed an antalgic or limping gait, others revealed no gait abnormalities. (See, e.g., T. 757, 818, 832, 846, 849, 852, 1741, 1886, 1916, 1939.) Consequently, there is substantial evidence to support the ALJ's conclusion that Plaintiff had not demonstrated an inability to ambulate effectively. Likewise, there is very little objective evidence of ongoing limitations in Plaintiff's left hand, and certainly nothing to show he had an "extreme loss of function of both upper extremities." 20 C.F.R. § 404, Subpart P, App. I, 1.00(B)(2)(c). There is substantial evidence to support the ALJ's finding that Plaintiff did not meet Listing 1.02.
Listing 1.02 defines an "inability to ambulate effectively" as "an extreme limitation of the ability to walk," such as insufficient functioning of the lower extremities that prevents the individual from ambulating without use of a hand-held assistive device that limits the use of both upper extremities. 20 C.F.R. § 404, Subpart P, App. I, 1.00(B)(2)(b)(1). Similarly, the Listing defines the ability to ambulate effectively as being capable of walking at a reasonable pace over a sufficient distance to carry out activities of daily living and to travel without companion assistance to work or school. 20 C.F.R. § 404, Subpart P, App. I, 1.00(B)(2)(b)(2).
Listing 1.06 also requires an inability to ambulate effectively, so there is also substantial evidence to support the ALJ's finding on that section for the same reasons. 20 C.F.R. § 404, Subpart P, App. I, 1.06.
In terms of the applicable mental Listings (12.02, 12.04, and 12.06), the ALJ found that Plaintiff had no restrictions in activities of daily living, moderate difficulties in social functioning and maintaining concentration, persistence, and pace, and no episodes of decompensation of extended duration. (T. 19.) These conclusions are supported by the overall record, which, despite a few instances of greater symptoms, includes mental health examinations showing primarily normal concentration, attention, and memory, fluctuating but generally mild mood abnormalities, and good response to medications. (See, e.g., T. 757-58, 796, 800-01, 806, 810, 820, 823, 846, 849, 853, 1802, 1804, 1806, 1854-55, 1857, 1886, 1908, 1911.)
On May 12, 2014, consultative examiner Rebecca Fisher, Psy. D., observed Plaintiff was cooperative with adequate social skills, was well-groomed, and displayed a coherent and goal directed thought process, appropriate affect, neutral mood, and intact attention and concentration, though he did also display lethargic motor behavior, poor eye contact, slow but intelligible speech, mildly impaired memory, and below average intellectual functioning. (T. 823-24.) Based on these observations, Dr. Fisher opined Plaintiff had the following functional limitations: no limitation in ability to follow and understand simple directions, perform simple tasks independently, maintain attention and concentration, maintain a regular schedule, learn new tasks, make appropriate decisions, and relate adequately with others; a mild limitation in ability to deal appropriately with stress; and a moderate limitation in ability to perform complex tasks independently. (T. 824.) In a separate form, Dr. Fisher opined Plaintiff had moderate limitations in understanding and remembering complex instructions and making judgments on complex work-related decisions, as well as mild limitations in carrying out complex instructions and making judgments on simple work-related decisions. (T. 826-28.)
On December 24, 2014, Nurse Practitioner ("N.P.") Robert Sharpe noted that he told Plaintiff "frankly" that he "did not see any reason from a psychiatric standpoint why [Plaintiff] was not able to work." (T. 1802.) The medical evidence therefore does not indicate that Plaintiff experienced the marked limitations or the episodes of decompensation of extended duration needed to meet any of the applicable mental Listings. (T. 18-20.)
Paragraph B of the mental Listings requires that the individual display at least two of the following as a result of a mental impairment: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; and repeated episodes of decompensation, each of extended duration. 20 C.F.R. § 404, Subpart P, App. I, 12.00. Paragraph C of the mental Listings requires that the mental impairment cause more than a minimal limitation in the ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, as well as one of the following: repeated episodes of decompensation, each of extended duration; a disease process where even a minimal increase in mental demands or change in environment would cause the individual to decompensate; or a current history of one or more years' inability to function outside of a highly supportive living arrangement, with indication of the continued need for such an arrangement. Id.
For all these reasons, the ALJ's Step Three Listing findings are supported by substantial evidence, and remand is not required on this basis.
B. Whether the RFC Determination is Supported By Substantial Evidence and Based on a Proper Assessment of the Opinion Evidence
After carefully considering the matter, the Court answers this question in the negative, but finds that the errors committed are nonetheless harmless based on the vocational expert's testimony from the 2015 hearing.
Residual functional capacity is defined as "what an individual can still do despite his or her limitations[.] Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis[.]" Pardee v. Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). "In making a residual functional capacity determination, the ALJ must consider a claimant's physical abilities, mental abilities, symptomology, including pain and other limitations which could interfere with work activities on a regular and continuing basis." Id. (citing 20 C.F.R. § 404.1545(a)).
In terms of weighing opinion evidence, the Second Circuit has long recognized the 'treating physician rule' set out in 20 C.F.R. § 404.1527(c). "Thus, the opinion of a claimant's treating physician as to the nature and severity of the impairment is given controlling weight so long as it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (quoting Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)). However, there are situations where the treating physician's opinion is not entitled to controlling weight, in which case "the ALJ must explicitly consider, inter alia: (1) the frequen[c]y, length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist." Greek, 802 F.3d at 375 (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)). "Where an ALJ's reasoning and adherence to the Regulations is clear, she is not required to explicitly go through each and every factor of the Regulation." Blinkovitch v. Comm'r of Soc. Sec., No. 3:15-CV-1196 (GTS/WBC), 2017 WL 782979, at *4 (N.D.N.Y. Jan. 23, 2017) (citing Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013)), adopted by 2017 WL 782901 (N.D.N.Y. Feb. 28, 2017). After considering these factors, "the ALJ must 'comprehensively set forth [his] reasons for the weight assigned to a treating physician's opinion.'" Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129) (alteration in original). "The failure to provide 'good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand." Id. (quoting Burgess, 537 F.3d at 129-30).
The factors for considering opinions from non-treating medical sources are the same as those for assessing treating sources, with the consideration of whether the source examined the claimant replacing the consideration of the treatment relationship between the source and the claimant. See 20 C.F.R. § 404.1527(c)(1)-(6). Additionally, when weighing opinions from sources who are not considered "medically acceptable sources" under the regulations, the ALJ must consider the same factors as used for evaluating opinions from medically acceptable sources. Saxon v. Astrue, 781 F. Supp. 2d 92, 104 (N.D.N.Y. 2011) (citing Canales v. Comm'r of Soc. Sec., 698 F. Supp. 2d 335, 344 (E.D.N.Y. 2010)); SSR 06-03p, 2006 WL 2329939. "[A]n ALJ is entitled to rely upon the opinions of both examining and nonexamining State agency medical consultants, since such consultants are deemed to be qualified experts in the field of social security disability." Gamble v. Comm'r of Soc. Sec., No. 1:15-CV-0352 (GTS/WBC), 2016 WL 4491710, at *5 (N.D.N.Y. July 25, 2016) (quoting Baszto v. Astrue, 700 F. Supp. 2d 242, 249 (N.D.N.Y. 2010)), adopted by 2016 WL 4487780 (N.D.N.Y. Aug. 25, 2016).
Medically acceptable sources are noted to include the following: licensed physicians; licensed or certified psychologists; licensed optometrists; licensed podiatrists; and qualified speech-language pathologists. SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006).
In determining that Plaintiff remained capable of performing a range of light work with additional postural, environmental, and mental limitations, the ALJ afforded great weight to the opinion of consultative examiner Dr. Revan, some weight to the interrogatory and testimony of non-examining medical expert Louis Fuchs, M.D., and little weight to the opinion of consultative examiner Dr. Perkins-Mwantuali in relation to Plaintiff's physical functioning, and great weight to the opinion of consultative examiner Dr. Fisher and some weight to the statement of N.P. Sharpe in relation to Plaintiff's mental functioning. (T. 21-22.)
Turning first to the mental RFC, this Court agrees with Defendant that the ALJ was entitled to rely on Dr. Fisher's opinion, particularly given the absence of a functional opinion regarding Plaintiff's mental abilities from any treating physician or other source. (Dkt. No. 20 at 22.) The ALJ found that Dr. Fisher's opinion was entitled to great weight because she was an acceptable source, had examined Plaintiff, and her finding of at most moderate mental limitations were consistent with Plaintiff's "presentation during exams, positive response to conservative treatment, and varied activities of daily living." (T. 22.) As already noted above in Section III.A of this Decision and Order, the mental treatment evidence as a whole did not show ongoing mental health symptoms suggestive of greater limitation, and N.P. Sharpe, who provided mental health care for Plaintiff, went so far as to explicitly indicate that there was no reason that Plaintiff would be unable to work from a psychiatric standpoint. (T. 1802.) The RFC accounts for evidence showing limitations in dealing with stress and decision-making and even accommodates some of Plaintiff's reports of difficulty dealing with others. Therefore, the ALJ was entitled to rely on Dr. Fisher's opinion and the mental portion of the RFC determination is supported by substantial evidence.
The ALJ afforded some weight to this opinion because he found it to be consistent with the evidence as a whole, but declined to afford it greater weight due to the lack of a functional assessment of Plaintiff's mental abilities. (T. 22.)
However, the supportability of the physical RFC assessment is not so clear. The ALJ afforded great weight (the most afforded to any physical opinion) to Dr. Revan's February 2012 opinion, noting that Dr. Revan was an acceptable medical source who had the opportunity to examine Plaintiff and that her primarily mild findings were consistent with the medical imaging, Plaintiff's presentation on exams, his surgical history, and his reported activities of daily living. (T. 21.) By contrast, the ALJ afforded only some weight to the opinion from medical expert Dr. Fuchs, noting that while Dr. Fuchs was an acceptable medical source with a specialty in orthopedic surgery, he had not examined Plaintiff and (as particularly relevant to this Court's analysis) his limitations related to Plaintiff's abilities to stand and walk were inconsistent with physical exams that did not show difficulties with these tasks other than the presence of an antalgic gait. (T. 21-22.) The ALJ then afforded little weight to the opinion from consultative examiner Dr. Perkins-Mwantuali, finding that while Dr. Perkins-Mwantuali was an acceptable source who had examined Plaintiff, her findings were inconsistent with claimant's presentation on exams, his positive response to treatment, and his reported activities of daily living. (T. 22.)
This Court is not convinced that substantial evidence supports the ALJ's finding that Plaintiff remains able to stand and walk for six hours in an eight-hour workday despite his impairments. The ALJ relied on the 2012 opinion from Dr. Revan, who opined in a rather vague manner that Plaintiff had only a mild limitation in walking. (T. 21, 583.) However, it is not clear that this opinion is consistent with Dr. Revan's own examination, which showed that Plaintiff ambulated with a limp, was unable to walk on his toes, displayed pain when walking on his heels, could only squat halfway down while holding onto something, needed help changing for the exam, and had swelling and pain with range of motion of his knee. (T. 581-82.)
Nor does a "mild" limitation appear to be consistent with the other treatment evidence, contrary to the ALJ's assertion. Dr. Perkins-Mwantuali observed in May 2014 that Plaintiff had an antalgic gait, could not walk on his heels or toes due to lower extremity pain, and had a minimal ability to squat; she also found diminished hip range of motion, swelling and decreased flexion in the left knee, diminished ankle range of motion, and diminished sensation in the fourth and fifth toes of the left foot. (T. 832-33.) A left knee arthrogram from November 16, 2012, showed significant osteoarthritic changes with a suspicion of poorly visualized meniscal tears. (T. 678.) A right knee arthrogram showed osteoarthritic changes, and though it did not reveal a definitive tear, it raised suspicions of a tear in the posterior horn of the medial meniscus. (T. 859.) As noted previously, Plaintiff was observed to have an antalgic or otherwise abnormal gait on multiple examinations. (T. 581, 690, 727, 819, 832, 846, 849, 852, 1882, 1886.) He was also variously observed to have knee tenderness, swelling, and diminished lower extremity strength on examinations throughout the relevant period; it was also noted that his knee impairment appeared to be causing tightness in the Achilles tendon that resulted in calf pain. (See, e.g., T. 681, 700-01, 703, 850, 853, 1719, 1736, 1741, 1747-48, 1757, 1882, 1886.)
It is important to note that the ALJ's assertions that the medical imaging supported fairly mild findings ignore the fact that Plaintiff was unable to undergo MRI testing of his knees due to the metal bullet that remained lodged in his skull. (See e.g., T. 493, 502, 690.) Because such imaging would be more likely to provide a better understanding of his knee condition than the x-rays and CT scans that were taken, and because the arthrograms suggest greater impairment than shown in those scans, the ALJ's reliance on the objective imaging that shower milder findings in this case is not wholly persuasive.
Additionally, Plaintiff's reported activities of daily living do not support an ability to stand or walk for six hours in an eight-hour workday. At the September 2012 hearing, Plaintiff testified he could not walk much due to his knee and indicated he could only walk a few blocks at one time and stand less than a half hour before needing to sit. (T. 47-48.) At the June 2015 hearing, Plaintiff testified he could walk approximately a block or two at once and could stand "a couple of hours" while shopping or doing things around the house, such as cleaning every few weeks and cooking once per day. (T. 76-77.) He reported getting cramps in his calves daily when walking due to muscle tightness related to his knee impairment. (T. 81-82.) In a function report from 2012, Plaintiff reported he could not constantly stand at the stove while cooking due to pain, but he performed household chores such as light dusting, sweeping, and laundry every two weeks, and drove short distances. (T. 421.) He indicated he had leg pain if standing for more than 10 or 15 minutes and could only walk a couple of blocks at one time. (T. 423-24.) Contrary to the ALJ's assertions, there is nothing in Plaintiff's reported daily activities that is inconsistent with Dr. Fuchs' and Dr. Perkins-Mwantuali's opinions that Plaintiff was limited to standing and walking two hours total in an eight-hour workday.
Most tellingly, the two other opinions regarding physical functioning, provided by another examining physician and an orthopedic surgeon who had the opportunity to examine all the evidence before the ALJ when affirming his earlier interrogatory opinion at the June 2015 hearing, both indicate an ability to stand and walk for only two hours total in an eight-hour workday. (T. 838, 904.) Dr. Fuchs also opined that Plaintiff would need the ability to change positions at will within the confines of his ability to sit eight hours in an eight-hour day and stand or walk two hours in an eight-hour day. (T. 904.)
Although the treatment evidence alone does not reveal overwhelmingly clear evidence that Plaintiff would be restricted to standing and walking for two hours in an eight-hour workday contrary to the ALJ's assessment, orthopedic surgeon Dr. Fuchs concluded that such a limitation was warranted after reviewing all of this evidence. However, rather than relying on Dr. Fuchs' expert assessment of the evidence, the ALJ instead relied on his own assessment of the treatment evidence and a less-than-specific opinion from a one-time examiner who did not review the treatment records. (T. 21-22.) While it is the duty of the ALJ to weigh all the evidence and make the final RFC determination, the circumstances of this case suggest that the ALJ improperly substituted his own lay opinion of the medical evidence for that of a specialist physician. Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999) ("[T]he ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.") (internal quotations omitted); Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) ("[W]hile an [ALJ] is free to resolve issues of credibility as to lay testimony or to choose between properly submitted medical opinions, he is not free to set his own expertise against that of a physician who [submitted a medical opinion to] or testified before him."); see also Provencher v. Comm'r of Soc. Sec., No. 6:15-CV-1287 (GTS), 2017 WL 56702, at *5 (N.D.N.Y. Jan. 5, 2017) ("It is well settled that the ALJ is not permitted to substitute his or her own expertise or view of the medical proof for any competent medical opinion.") (citing Greek, 802 F.3d at 375; Rosa, 168 F.3d at 79; Balsamo, 142 F.3d at 81). Accordingly, there is not substantial evidence to support the ALJ's assertion that Dr. Fuchs' opinion was inconsistent with the evidence, particularly as the only opinion that suggests a greater ability to stand and walk is couched in fairly vague terms and does not appear to be consistent with that physician's own examination. The ALJ's rejection of Dr. Fuchs' opinion, and particularly the limitations related to Plaintiff's ability to stand and walk, is therefore not supported by substantial evidence, which in turn leaves the physical RFC assessment unsupported by substantial evidence.
However, based on the vocational expert's testimony at the hearing, this error is nonetheless harmless. An error is considered harmless where proper application of standards or consideration of evidence would not change the outcome of the ALJ's decision. Jaghamin v. Comm'r of Soc. Sec., No. 1:11-cv-1273 (GLS), 2013 WL 1292061, at *7 (N.D.N.Y. Mar. 28, 2013) (citing Walzer v. Chater, No. 93-cv-6240 (LAK), 1995 WL 791963, at *9 (S.D.N.Y. Sept. 26, 1995)); Dombrowski v. Astrue, No. 5:12-cv-0638 (GLS), 2013 WL 528456, at *3 (N.D.N.Y. Feb. 11, 2013); see Ryan v. Astrue, 650 F. Supp. 2d 207, 217 (N.D.N.Y. 2009) (finding that, although the ALJ improperly discounted the treating physician's opinion, that error was harmless because the ALJ nonetheless included those limitations in the RFC). Although substantial evidence does not support the ALJ's conclusion that Plaintiff remained capable of standing and walking six hours in an eight-hour workday, the opinions of Dr. Fuchs and Dr. Perkins-Mwantuali do not necessarily indicate that the ALJ's ultimate determination is not supported by substantial evidence. Notably, the ALJ posed a hypothetical question to the vocational expert at the hearing in which he described an individual who could perform sedentary work (described as lifting up to ten pounds, standing and walking for two hours total with normal breaks, and sitting for up to six hours total with normal breaks) with all the other non-exertional limitations included in the RFC. (T. 113-14.) In response to this hypothetical, the vocational expert testified that Plaintiff would be able to perform other work in the national economy such as optical final assembler, document preparer, and stem mounter. (T. 114.) The vocational expert also testified that the need to change positions at will between sitting and standing would not prevent an individual from performing the identified sedentary occupations because, in his opinion, they "generally can be done from standing or sitting position[s]." (T. 117.) Although the vocational expert noted the individual would need to stoop to their desk while standing in order to remain on task, he also noted that the hypothetical question allowed the individual to stoop occasionally, which would be consistent with an individual who was limited to standing only two hours in an eight-hour workday. (T. 117-18.) Therefore, even if the ALJ had accepted limitations for standing and walking for only two hours in an eight-hour workday, as opined by both Dr. Fuchs and Dr. Perkins-Mwantuali, and the need to change positions between sitting and standing at will, as opined by Dr. Fuchs, the vocational expert's testimony indicates that there would still be a substantial number of jobs Plaintiff would be able to perform with all of the supported limitations. Because the outcome would not change in the absence of the ALJ's errors in weighing the opinion evidence, those errors are harmless and do not necessitate remand.
As the vocational expert noted, the term "occasionally" is defined for Social Security disability purposes as up to one-third of the workday. (T. 118.) See also SSR 96-9p, 1996 WL 374185, at *3 (July 2, 1996) (defining "occasionally" as "occurring from very little up to one-third of the time, and would generally total no more than about 2 hours of an 8-hour workday").
As a corollary matter, the ALJ found that Plaintiff was not entirely credible, noting that his reports of symptoms were not consistent with much of the objective medical evidence, that Plaintiff had some non-compliance with his mental health medications and treatment, and that he reporting the ability to perform a range of activities despite his limitations, including cooking, cleaning, shopping, socializing with friends, going to church, going to the casino, and driving. (T. 21.) The ALJ is required to provide reasons for rejecting a claimant's allegations of symptoms with "sufficient specificity to enable [this Court] to decide whether the determination is supported by substantial evidence." Schlichting v. Astrue, 11 F. Supp. 3d 190, 205 (N.D.N.Y. 2012) (quoting Lewis v. Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999)). The Second Circuit recognizes that "[i]t is the function of the [Commissioner], not [reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant," and that "[i]f there is substantial evidence in the record to support the Commissioner's findings, the court must uphold the ALJ's decision to discount a claimant's subjective complaints of pain." Id. (alternation in original) (quoting Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983); Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)). Because the ALJ has provided specific reasons grounded in the evidence for finding that Plaintiff's allegations were not entirely credible and his conclusion regarding Plaintiff's credibility is supported by substantial evidence, this Court defers to that finding.
Although Plaintiff's reported daily activities do not contradict Dr. Fuchs' and parts of Dr. Perkins-Mwantuali's opinions related to Plaintiff's ability to stand and walk as noted previously, the ALJ's separate finding that those activities reported by Plaintiff were not consistent with the extent of disability alleged is not unreasonable and is supported by substantial evidence in the record.
Because the ALJ's errors in assessing the opinion evidence and RFC are harmless, the ALJ's ultimate decision remains supported by substantial evidence and remand is not warranted.
C. Whether the Step Five Finding is Supported By Substantial Evidence
After carefully considering the matter, the Court answers this question in the affirmative for the reasons stated in Defendant's memorandum of law. (See Dkt. No. 20 at 24-25.) To those reasons, the Court adds the following analysis.
Although the claimant has the general burden to prove he has a disability under the definitions of the Social Security Act, the burden shifts to the Commissioner at Step Five "to show there is other work that [the claimant] can perform." McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (alteration in original) (quoting Brault v. Soc. Sec. Admin., 683 F.3d 443, 445 (2d Cir. 2012)). The Commissioner can usually establish that there is other work that a plaintiff can perform by reliance on the Medical-Vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as "the Grids." Baldwin v. Astrue, No. 07-Civ.-6958 (RJH/MHD), 2009 WL 4931363, at *20 (S.D.N.Y. Dec. 21, 2009). However, when a plaintiff suffers from nonexertional limitations that significantly limit the plaintiff's employment opportunities, exclusive reliance on the Grids is inappropriate. Id. at *27. However, "the mere existence of a non-exertional limitation does not automatically . . . preclude reliance on the guidelines." Zabala v. Astrue, 595 F.3d 402, 410-11 (2d Cir. 2010) (alteration in original) (quoting Bapp, 802 F.2d at 603.) A plaintiff's range of potential employment is significantly limited when the plaintiff "suffers from the additional loss of work capacity beyond a negligible one or, in other words, one that so narrows a claimant's possible range of work as to deprive him of a meaningful employment opportunity." Baldwin, 2009 WL 4931363, at *27 (internal quotations omitted).
As noted above in Section III.B of this Decision and Order, the ALJ consulted a vocational expert and posed hypothetical questions regarding limitations covering the ability to perform both light and sedentary work with additional postural, environmental, and mental limitations that resulted in a showing of light and sedentary jobs that could be performed with those limitations. (T. 112-20.) Because this testimony shows a substantial number of jobs Plaintiff can perform when the full range of limitations supported by the record are considered, including those the ALJ improperly failed to adopt, the vocational expert's testimony provides substantial evidence to support the ALJ's Step Five finding and remand is not required on this basis.
ACCORDINGLY, it is
ORDERED that Defendant's motion for judgment on the pleadings (Dkt. No. 20) is GRANTED ; and it is further
ORDERED that Defendant's decision denying Plaintiff disability benefits is AFFIRMED ; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED. Dated: June 29, 2017
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge