Opinion
23-cv-01317 (AT) (SDA)
12-13-2023
Martha Vellone, on behalf of Kenneth Vellone, Dec'd Plaintiff, v. Kilo Kijakazi, Acting Commissioner of Social Security, Defendant.
THE HONORABLE ANALISA TORRES, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Martha Vellone brings this action on behalf of her deceased ex-husband, Kenneth Vellone (“Vellone”). (Compl., ECF No. 1.) Pursuant to Section 205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g), Plaintiff challenges the final decision of the Commissioner of Social Security (the “Commissioner”) that denied his application for Disability Insurance Benefits (“DIB”). (See id.) Plaintiff has moved for judgment on the pleadings. (Pl.'s Mot., ECF No. 16.) For the reasons set forth below, I respectfully recommend that Plaintiff's motion be GRANTED IN PART and that this action be remanded for further administrative proceedings.
BACKGROUND
I. Procedural Background
Vellone filed an application for DIB on December 8, 2017, with an alleged disability onset date of June 15, 2016. (Administrative R., ECF No. 15 (“R.”), 156-58.) The Social Security Administration (“SSA”) denied his application on April 6, 2018, and Vellone filed a request for a hearing before an Administrative Law Judge (“ALJ”) on May 9, 2018. (R. 86-90, 98-99.) Vellone passed away on January 21, 2019. (See R. 117, 330.) Martha Vellone became a substitute party on January 29, 2019. (R. 119.) A video hearing was held on April 12, 2019 before ALJ John Carlton. (R. 27-67.) Vellone was represented at the hearing by attorney. (R. 27.) In a decision dated September 26, 2019, ALJ Carlton found Vellone not disabled. (R. 424-31.) Vellone requested review of the ALJ's decision from the Appeals Council on October 28, 2019. (See R. 439.) The Appeals Council denied the request on December 9, 2019, making ALJ Carlton's decision the Commissioner's final decision. (R. 436-38.)
Vellone subsequently filed an appeal in this Court. On January 29, 2021, Magistrate Judge Parker entered a Report and Recommendation, recommending that the case be remanded for further proceedings. (R. 398.) District Judge Abrams adopted the recommendation on July 6, 2021 and the Court entered judgment. (R. 399-410.) On January 6, 2022, the Appeals Council issued an Order vacating the final decision and remanding the case to the ALJ for further consideration. (R. 444.) A second hearing was held before ALJ Carlton on June 8, 2022. (R. 36571.) In a decision dated December 21, 2022, ALJ Carlton again found Vellone not disabled. (R. 450-58.) The Appeals Council denied Plaintiff's request for review on December 9, 2019, making ALJ Carlton's December 21, 2022 decision the Commissioner's final decision. (R. 436-38.) This action followed.
II. Non-Medical Evidence
Born on October 2, 1957, Vellone was 59 years old on the alleged disability onset date. (See R. 190.) Vellone received his GED in 1977 and had past relevant work as a jeweler. (R. 183, 195-96.) Vellone died of a heart attack on January 21, 2019. (R. 32, 330.)
III. Medical Evidence Before the ALJ
The Court focuses on the medical evidence from on or after the alleged onset date of June 15, 2016. Prior to the alleged onset date, Vellone had a history of chronic back pain and opioid/heroin addiction. (See R. 301.) He also had undergone a right hip replacement. (See R. 242, 303, 306, 312.)
Prior to and throughout the relevant time period, Vellone saw Dr. Abdul Azeez, M.D. for primary care. During an appointment on June 22, 2016, Dr. Azeez noted that Vellone had been admitted to alcohol rehab and was no longer drinking. (R. 660.) Dr. Azeez recorded Vellone's blood pressure; noted that his head eyes, ears, nose and throat were within normal limits and his lungs were clear; and prescribed Valium. (Id.) On July 8, 2016, Dr. Azeez noted that Vellone had an appointment for hepatitis C and documented normal physical examination findings regarding his head eyes, ears, nose, throat, lungs, heart and abdomen. (Id.) Dr. Azeez continued prescriptions for Oxycodone and Xanax. (Id.)
In his Disability Report, Vellone indicated that he had been seeing Dr. Azeez since 1997. (R. 185.) The Administrative Record contains treatment notes from Dr. Azeez from November 2014 through January 2019. (R. 608-27; see also R. 653-72 (duplicate records).)
Vellone had been taking Oxycodone and Xanax, as prescribed by Dr. Azeez, since at least 2014. (R. 653-60.)
On August 3, 2016, Dr. Azeez noted that Vellone was “feeling better” with similar normal physical examination results of the head eyes, ears, nose, throat, lungs, heart and abdomen. (R. 661.) Dr. Azeez refilled Vellone's prescriptions on August 5, 2016. (Id.) At his next visit on September 7, 2016, Dr. Azeez noted that Vellone was “doing o.k.” and noted hypertension and anxiety. (Id.) A physical examination of the head eyes, ears, nose, throat, lungs, heart and abdomen was normal and Dr. Azeez refilled Vellone's prescriptions. (Id.) On September 30, 2016, Dr. Azeez wrote that Vellone felt ok and needed a letter for a work program, noting that he had difficulty bending and lifting more than 20 pounds because of his right hip replacement ten years prior. (R. 662.) Dr. Azeez also noted that Vellone had left hip pain. (Id.) A physical examination of Vellone's head, eyes, ears, nose and throat and lungs was normal. (Id.) On October 7, 2016, Dr. Azeez refilled Vellone's prescriptions of Oxycodone and Xanax. (Id.) During an appointment on November 4, 2016, Dr. Azeez noted that Vellone felt okay and was on Zepatier, the brand name for a combination of Elbasvir and Grazoprevir, for hepatitis C. (R. 662.) Dr. Azeez documented normal physical examination findings regarding the head eyes, ears, nose, throat, lungs, heart and abdomen and continued Vellone's prescriptions for Oxycodone and Xanax. (Id.) On December 2, 2016, Dr. Azeez noted that Vellone felt okay and documented normal physical examination findings regarding the head eyes, ears, nose, throat, lungs, heart and abdomen. (R. 663.) Dr. Azeez started Vellone on Norvasc in addition to refilling his prescriptions for Oxycodone and Xanax. (Id.)
“The combination of elbasvir and grazoprevir is used . . . to treat a certain type of chronic (long-term) hepatitis C infection (swelling of the liver caused by a virus)[.]” Elbasvir and Grazoprevir, https://perma.cc/X9GW-EBN7.
Norvasc is a brand name for amlodipine, which is used alone or in combination with other medications to treat high blood pressure. See Amlodipine, https://perma.cc/UG3H-S59G.
During a follow-up visit on February 1, 2017, Dr. Azeez noted that Vellone felt okay and smoked 2-3 cigarettes. (R. 664.) Dr. Azeez noted normal physical examination findings regarding the head eyes, ears, nose, throat, lungs, heart and abdomen and that Vellone had no edema in the legs. (Id.) Dr. Azeez noted diagnoses of hypertension, hepatitis C, and anxiety. (Id.) Dr. Azeez continued Vellone's prescriptions for Xanax and Oxycodone and added a prescription for Nicorette gum. (Id.) Dr. Azeez saw Vellone again on March 1, 2017. (Id.) Dr. Azeez noted that Vellone felt okay and documented normal physical examination findings regarding the head eyes, ears, nose, throat, lungs, heart and abdomen. (Id.) Dr. Azeez also referred to a complete blood count and other blood work. (Id.) Dr. Azeez continued Vellone's prescriptions for Norvasc, Xanax and Oxycodone. (Id.)
On March 29, 2017, Dr. Azeez noted that Vellone felt okay, but had had a fall and had been seen in urgent care with “no fix.” (R. 665.) Dr. Azeez noted that Vellone had pain in his left knee, back pain and numbness. (Id.) Dr. Azeez noted normal findings regarding the head eyes, ears, nose, throat, lungs, heart and abdomen and wrote “[range of motion] hip [and] knees” without further notation. (Id.) Dr. Azeez continued Vellone's prescriptions for Norvasc, Xanax and Oxycodone. (Id.) During his next visit, on what appears to have been April 28, 2017, Dr. Azeez noted that Vellone complained of pain in his left hip. (Id.) Dr. Azeez noted normal findings regarding the head eyes, ears, nose, throat, lungs and heart and noted that Vellone's range of motion for the left hip was within normal limits. (Id.) Dr. Azeez continued the same medications. (Id.) The following month, on May 26, 2017, Dr. Azeez noted that Vellone felt okay. (R. 666.) Dr. Azeez documented similar physical examination findings and noted that Vellone was being followed by orthopedics. (R. 666.) Dr. Azeez refilled Vellone's prescriptions for Xanax and Oxycodone. (Id.)
The only orthopedic notes in the record appear to be from November 2018 and later. (See R. 329.)
On June 26, 2017, Dr. Azeez noted that Vellone's hip pain persisted, but he was “working full time.” (R. 666.) Dr. Azeez's physical examination findings regarding the head eyes, ears, nose, throat, lungs, heart and abdomen were normal and he continued Vellone's prescriptions for Norvasc, Xanax and Oxycodone. (Id.) During the next follow-up visit on July 24, 2017, Dr. Azeez noted that Vellone felt okay and documented normal physical examination findings regarding the head eyes, ears, nose, throat, lungs, heart and abdomen. (R. 667.) Dr. Azeez continued the same prescriptions. (Id.)
On August 14, 2017, Vellone had an x-ray of his lumbosacral spine taken at Mount Sinai Beth Israel, Philips Ambulatory Care Center. (R. 241) Principal radiologist Dr. David Liu, M.D., noted mild degenerative changes involving the L3 to S1 disc spaces, multilevel facet arthropathy, and probable muscle spasm, but no fracture or destructive process. (Id.; see also R. 636.)
On August 16, 2017, Vellone saw Dr. Azeez for a follow-up appointment. (R. 667.) Dr. Azeez noted that Vellone felt the same and documented normal physical examination findings regarding the head eyes, ears, nose, throat, lungs and heart. (Id.) On August 23, 2017, Dr. Azeez refilled Vellone's prescriptions for Oxycodone and Xanax. (Id.)
On September 17, 2017, Vellone was seen New York Presbyterian Hospital for left face pain following an assault two days earlier. (R. 297-301.) Dr. Joshua Stillman, M.D. assessed a facial fracture and ordered a head CT. (See id.) On September 22, 2017, Vellone underwent surgery for the facial fracture performed by Dr. Michael Perino, M.D. (R. 290-96.)
On October 1, 2017, Vellone was seen by Dr. Talia Walker, M.D., in the emergency department at New York Presbyterian for alcohol intoxication. (R. 270-72.) Vellone's mother, who he lived with, called EMS because he was drunk and verbally abusive. (R. 271.) She reported no longer feeling safe in the home, but that Vellone threatened suicide if she kicked him out. (Id.) On sobering, Vellone reported that it was his mother who was an alcoholic and verbally abusive and denied suicidal ideation. (Id.) Dr. Walker referred him for a psychiatric consultation for possible suicidal ideation and possible harm to his mother. (R. 272.) On psychiatric examination, Dr. Daniel Linhares, M.D., noted that Vellone was guarded, hostile and irritable. (R. 268.) Vellone expressed depressive feelings and admitted a history of alcohol and “pills” use. (Id.) Dr. Linhares found that Vellone could not be safely discharged and recommended he be transferred for a full psychiatric evaluation. (R. 269-70.) While at the emergency department, Vellone also was reassessed for left facial pain and was prescribed Oxycodone for pain. (R. 267.)
On October 28, 2017, Vellone was seen again at the New York Presbyterian emergency department following an overdose of alcohol and opiates. (R. 264-66.) Vellone endorsed drinking beer and taking two Percocet in an attempt to relieve chronic back pain. (R. 264.) He denied intent to harm himself or physical complaints. (Id.) The following morning, Dr. Christopher Tedeschi, M.D., noted that Vellone was awake and alert and ambulating. (R. 265.) Vellone denied acute psychiatric complaints and was eager to return to his new job. (Id.) Dr. Tedeschi discharged Vellone with instructions to follow up with his primary doctor. (Id.)
On December 15, 2017, Vellone returned to Mount Sinai and saw Dr. Richard Chang, M.D., on referral from Dr. Azeez. (R. 317.) Vellone complained of a sharp, constant lower back pain radiating to the left lower extremity, including the left buttock, lateral thigh, posterior calf, and the heel and sole of the left foot (R. 318). Vellone reported that the pain began over a year prior and had worsened in the past few months (R. 318.) Vellone rated the pain as 8-9/10, described it as worsening with any movement especially walking and standing, and stated there are no alleviating factors (R. 318.) Vellone had tried physical therapy, Tylenol, naproxen and ibuprofen. (Id.) Dr. Chang conducted a heel lifting test and noted Vellone was able to do 10 full heel lifts on his right side but only 5 on his left side (R. 320.) Dr. Chang reviewed Vellone's August 14, 2017 x-Ray imaging and noted loss of lumbar lordosis, multilevel degenerative disc disease most severe at L3-4 and L5-S1 and associated lumbar facet arthropathy (R. 320.) Dr. Chang assessed left L5 and S1 lumbar radiculopathy. (R. 321.) Dr. Chang recommended physical therapy and an MRI of the lumbosacral spine. (Id.) He also started Vellone on 300 mg of Gabapentin. (Id.)
“Lordosis is the normal convex curvature of the cervical and lumbar regions of the spine.” Tulipani v. Saul, No. 3:19-CV-00565 (AVC), 2020 WL 13553266, at *5 n.18 (D. Conn. Apr. 13, 2020) (internal quotation marks and alteration omitted).
On December 26, 2017, Vellone underwent an MRI of the lumbar spine performed by Dr. Azita Khorsandi, M.D. (R. 314, 634-35.) Dr. Khorsandi noted in the MRI report left paracentral disc herniation at L5/S1 with mass effect against the left S1 nerve root; left lateral disc herniation at L4/L5 with mass effect against the left L4 nerve root; moderate spinal canal stenosis at L4/L5 and L3/L4 level; and left lateral disc herniation at L2/L3 with moderate left-sided neural foramina narrowing. (R. 635.)
On December 29, 2017, Vellone returned to Mount Sinai for a follow-up visit with Dr. Chang (R. 310-11.) Vellone reported his back pain as a 10/10, claiming it was becoming more constant and was interfering with his work. (R. 311.) Vellone described the pain as starting in his lower back and traveling behind and along his thigh to the bottom of his foot with numbness and tingling. (Id.) Vellone reported that his 300mg Gabapentin prescription was causing stomach irritation and drowsiness (Id.) On physical examination of the lumbosacral spine, Dr. Chang noted antalgic gait; ability to heel, toe and tandem walk; positive Trendelenburg with single leg stance on left lower extremity; positive tenderness to palpitation of lumbar paraspinals bilaterally with associated tightness; and negative tenderness to palpitation of greater trochanters, PSIS, sciatic notch, SI joint bilaterally. (R. 313.) For range of motion, Dr. Chang noted full active range of motion in all planes except restricted with extension. (R. 314.) A manual muscle test was 5/5 bilaterally, except left ankle plantar/flexion was 4/5 and there was decreased sensation over the whole left lower extremity. (Id.) A straight leg raise test was positive on the left side and a Kemp's test was positive on left side. (R. 314.) Other provocative tests were negative. (Id.)
Dr. Chang reviewed Vellone's December 26, 2017 MRI and official report and noted that at L5-S1, there was a left central disc herniation at L5-S1 contacting the descending left S1 nerve root. (R. 314.) Dr. Chang further noted that at L4-5 there was a “large broad based disc herniation with left central and foraminal disc protrusion contacting the exiting L4 and descending L5 nerve roots” and also “associated moderate-severe central canal, as well as moderate left lateral recess, and foraminal stenosis.” (Id.) Dr. Chang noted that there was lumbar facet arthropathy and degenerative disc disease in multiple levels, especially L4-5 and L5-S1. (Id.)
Dr. Chang assessed left L5 and S1 radiculopathy secondary to left central disc herniation at L5-S1 and broad based disc herniation with left central and foraminal disc protrusions at L4-5. (Id.) Dr. Chang doubled Vellone's Gabapentin prescription to 600mg, encouraged him to continue physical therapy, and advised him to begin tapering his Oxycodone use. (Id.) Dr. Chang also recommended transforaminal epidural steroid injections to L5 and S1. (Id.) Dr. Chang administered the epidural injections on January 10, 2018. (R. 606-07.)
On March 9, 2018, Dr. Azeez completed a Medical Findings Summary. (R. 331-33.) Dr. Azeez opined that the symptoms of Vellone's back problems would likely increase if he were placed in a competitive work environment and would pose constant interference to his attention and concentration (R. 331.) Dr. Azeez indicated that Vellone was limited to sitting for no more than three hours in an eight-hour workday and standing/walking no more than three hours. (R. 332.) Dr. Azeez opined that Vellone could occasionally lift and carry 10-15 pounds, but never lift or carry more than 15 pounds; could stoop, kneel, crawl, crouch, push or pull and should avoid heights, humidity and wetness and fumes. (Id.) Additionally, Vellone should only occasionally climb, balance, or operate a motor vehicle as a condition of employment (Id.) Dr. Azeez also opined Vellone would need breaks of two to three hours during the workday, and would be off task for over 21% of the workday as a result of his symptoms (R. 333.)
On March 21, 2018, State Medical Consultant S. Ahmed, M.D. evaluated Vellone's August 14, 2017 x-ray, Dr. Chang's medical report of Vellone's December 29, 2017 appointment, and a CT head scan from 2015 (R. 74-5.) Dr. Ahmed opined that there was insufficient evidence to assess Vellone's functional limitations (Id.)
Vellone saw Dr. Azeez again on April 18, 2018. (R. 624.) Dr. Azeez noted that Vellone felt better and documented normal physical examination findings regarding the head eyes, ears, nose, throat, lungs, heart and abdomen and noted no edema in the legs. (Id.) Dr. Azeez also noted hypertension and back pain and refilled Vellone's prescriptions. (Id.) At his next visit on June 20, 2018, Dr. Azeez noted that Vellone felt okay, was complaining of a cough and needed a physical. (R. 625.) Dr. Azeez documented normal physical examination findings regarding the head eyes, ears, nose, throat, lungs, heart and abdomen. (Id.) Dr. Azeez also ordered blood work and continued Vellone's prescriptions for Xanax and Oxycodone. (Id.)
On July 25, 2018, Dr. Azeez noted that Vellone felt okay and that his employer wanted to know what medications he was taking for pain. (R. 625.) Dr. Azeez noted that Vellone's blood work and labs were okay; documented normal physical examination findings regarding the head eyes, ears, nose, throat and lungs; and continued his prescriptions. (Id.) At a follow-up visit the following month, Dr. Azeez documented similar findings and noted that he gave Vellone a medical certificate for his job. (R. 626.) Vellone next saw Dr. Azeez on October 17, 2018. (Id.) Dr. Azeez noted no new complaints, but that Vellone's back pain persisted. (Id.) Dr. Azeez documented normal physical examination findings regarding the head eyes, ears, nose, throat, lungs, heart and abdomen and continued Vellone's prescriptions. (Id.)
On November 8, 2018, Vellone saw Dr. Joseph Solberg, D.O., at Colombia Doctors Orthopedics for an initial consultation. (R. 328.) Vellone presented with pain in his left leg rated 9/10, radiating from his left buttock to left foot, with constant aching, stabbing, stiffness, and numbness (Id.) Vellone reported that his pain was exacerbated by walking, sitting, and standing, and was relieved by nothing (Id.) Vellone also reported weakness in his toes and numbness in his foot. (Id.) Vellone indicated that he had had two epidurals by a pain management physician without any benefit. (Id.) Dr. Solberg noted that Vellone's pain appeared secondary to lumbosacral radiculopathy and that epidurals and medication had not given him significant benefit. (R. 329.) Dr. Solberg discussed treatment options with Vellone including potential surgical referral and instructed him to bring a copy of his December 26, 2017 MRI imaging and official report to a follow-up visit scheduled in one week. (Id.)
Vellone next saw Dr. Azeez on November 19, 2018. (R. 626.) Dr. Azeez noted that Vellone complained of a runny nose and cough and documented normal physical examination findings regarding the head eyes, ears, nose, throat, lungs heart and abdomen. (Id.) Under diagnoses, Dr. Azeez wrote MRI, back pain and anxiety. (Id.) He continued Vellone's prescriptions for Xanax and Oxycodone as well as an antibiotic. (Id.)
On November 20, 2018, Vellone returned to Colombia Doctors Orthopedics for a follow-up visit with Dr. Solberg (R. 324.) Vellone reported no change in pain since their last visit one week prior, still radiating from the left buttock to the foot with no alleviating factors (R. 324.) Dr. Solberg reviewed Vellone's December 26, 2017 MRI and official report and noted “degenerative changes, a left paracentral disc protrusion L5-S1,” and “neuroforaminal narrowing left L4-5.” (R. 326.) Dr. Solberg discussed treatment options with Vellone and placed a referral for surgery given “weakness and timecourse” and the lack of benefit from epidural injections. (Id.)
Vellone had an appointment with orthopedic surgeon Marc Dyrszka, M.D., on January 22, 2019, but passed away the day before. (R. 330, 334.)
On December 19, 2018, Vellone saw Dr. Azeez complaining of back pain. (R. 627.) Dr. Azeez documented normal physical examination findings regarding the head eyes, ears, nose, throat, lungs, heart and abdomen and continued Vellone's prescriptions. (Id.) During his next visit January 2, 2019, Dr. Azeez wrote that Vellone had “ a lot of emotional problems.” (Id.) Dr. Azeez again documented normal physical examination findings of regarding the head eyes, ears, nose, throat, lungs, heart and abdomen and continued Vellone's prescriptions. (Id.)
IV. Administrative Hearing Testimony
Martha Mooniaz (formerly Vellone), Vellone's ex-wife, testified at the April 12, 2019 administrative hearing before ALJ Carlton regarding her recollection of Vellone's work history and medical condition. (R. 36-59.) Vocational expert (“VE”) Kelly Hember also testified at the hearing. (R. 59-66.) In response to a hypothetical regarding an individual who could perform sedentary work, but could not work on ladders, ropes or scaffolds or slippery, uneven surfaces; could occasionally use ramps or stairs; could occasionally balance, stoop, crouch, crawl and kneel; could no work at unprotected heights; and could not operate a motor vehicle as a condition of employment, the VE testified that such individual could perform Vellone's past work as a jeweler. (R. 61-62.) Vellone's attorney asked the ALJ what records the hypothetical was based upon, to which the ALJ responded the x-rays and the MRI, but that he didn't have the full MRI. (R. 61.)
The ALJ explained that he relied on the testimony of Vellone's ex-wife from the April 2019 hearing because she did not testify at the second hearing. (R. 455.)
The VE testified that a person with the additional limitation of a sit-stand option every 20 minutes would not be able to perform the jeweler job because they would need to be able to maintain one position for at least 30 minutes at a time to maintain an acceptable level of productivity. (R. 63.) The VE also testified that the jeweler job required frequent fingering and feeling and constant handling. (R. 64.) Further, the VE testified that an individual could not be off task more than 10 percent of the time to maintain employment and that the typical employer would tolerate one absence per month. (Id.) The VE testified that a limitation to simple routine work would preclude the jeweler position, as would a limitation to semi-skilled work. (R. 65.)
Following remand, ALJ Carlton held a second administrative hearing on June 8, 2022. (R. 365-71.) Plaintiff's counsel appeared at the hearing, but no testimony was taken. (See id.)
V. ALJ Carlton's December 21, 2022 Decision
Applying the Commissioner's five-step sequential evaluation, see infra Legal Standards Section II, at Step 1, the ALJ found that Vellone had engaged in substantial gainful activity since his alleged onset date of June 15, 2016. (R. 452-53.) The ALJ based this determination on notations in the medical records that Vellone was working after the alleged consent date. (R. 452 (citing 177, 264, 297, 311, 662, 666, 670.) However, in the alternative, the ALJ continued with the sequential evaluation. (R. 453.)
At Step 2, the ALJ found that Vellone had severe impairments of degenerative disc disease and joint dysfunction status post right hip replacement. (R. 453.) At Step 3, the ALJ found that Vellone's impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, including Listing 1.15 for disorders of the skeletal spine resulting in compromise of a nerve root. (R. 454.)
Prior to proceeding to Step 4, the ALJ found that Vellone retained the RFC to perform sedentary work, as defined in 20 C.F.R. § 404.1567(b), except that he could not climb ladders, ropes or scaffolds, nor perform work on slippery or uneven surfaces; could occasionally climb ramps and stairs and occasionally balance, stoops, crouch, crawl and knew; and was precluded from working at unprotected heights or around dangerous machinery and could not operate a motor vehicle as a condition of employment. (R. 454-55.)
At Step 4, the ALJ found that Vellone was able to perform his past relevant work as a jeweler. (R. 457-58.) The ALJ therefore concluded that Vellone was not under a disability as defined under the Act at any time between June 15, 2016 and the date last insured. (R. 458.)
LEGAL STANDARDS
I. Standard Of Review
In reviewing a decision of the Commissioner, a court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
“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.” Ulloa v. Colvin, No. 13-CV-04518 (ER), 2015 WL 110079, at *6 (S.D.N.Y. Jan. 7, 2015) (citing Tejada 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[.]” Id.; accord Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). A court must set aside legally erroneous agency action unless “application of the correct legal principles to the record could lead only to the same conclusion,” rendering the errors harmless. Garcia v. Berryhill, No. 17-CV-10064 (BCM), 2018 WL 5961423, at *11 (S.D.N.Y. Nov. 14, 2018) (quoting Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)).
Absent legal error, the ALJ's disability determination may be set aside only if it is not supported by substantial evidence. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (vacating and remanding ALJ's decision). “Substantial evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). However, “[t]he substantial evidence standard is a very deferential standard of review-even more so than the clearly erroneous standard, and the Commissioner's findings of fact must be upheld unless a reasonable factfinder would have to conclude otherwise.” Banyai v. Berryhill, 767 Fed.Appx. 176, 177 (2d Cir. 2019), as amended (Apr. 30, 2019) (summary order) (emphasis in original) (citation and internal quotation marks omitted). If the findings of the Commissioner as to any fact are supported by substantial evidence, those findings are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995).
II. Determination Of Disability
A person is considered disabled for benefits purposes when he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months ....” 42 U.S.C. § 423(d)(1)(A).
An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § 423(d)(2)(A).
In determining whether an individual is disabled, the Commissioner 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.” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam) (citations omitted).
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims:
(i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled.
(ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement . . . [continuous period of 12 months], or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled.
(iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in appendix 1 [(the “Listings”)] . . . and meets the duration requirement, we will find that you are disabled.
(iv) At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled.
(v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled.20 C.F.R. § 404.1520(a)(4) (internal citations omitted).
If it is determined that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not progress to the next step. 20 C.F.R. § 404.1520(a)(4).
After the first three steps (assuming that the claimant's impairments do not meet or medically equal any of the Listings), the Commissioner is required to assess the claimant's RFC “based on all the relevant medical and other evidence in [the claimant's] case record.” 20 C.F.R. § 404.1520(e). A claimant's RFC is “the most [the claimant] can still do despite [the claimant's] limitations.” 20 C.F.R. § 404.1545(a)(1).
The claimant bears the burden of proof as to the first four steps. See Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). It is only after the claimant proves that he cannot return to work that the burden shifts to the Commissioner to show, at step five, that other work exists in the national and local economies that the claimant can perform, given the claimant's RFC, age, education, and past relevant work experience. See id. at 51-52.
III. Regulations Regarding Consideration Of Medical Opinions And Prior Findings For Applications Filed On Or After March 27, 2017
Under the regulations applicable to Plaintiff's claim, the ALJ considers five factors in evaluating the persuasiveness of medical opinions: (1) supportability; (2) consistency; (3) relationship of the source with the claimant, including length of the treatment relationship, frequency of examination, purpose of the treatment relationship, extent of the treatment relationship and whether the relationship is an examining relationship; (4) the medical source's specialization; and (5) other factors, including but not limited to “evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of [the SSA] disability program's policies and evidentiary requirements.” 20 CFR § 404.1520c(c). Using these factors, the most important of which are supportability and consistency, the ALJ must articulate “how persuasive [he] find[s] all of the medical opinions and all of the prior administrative medical findings in [the claimant's] case record.” Id. § 404.1520c(b).
With respect to the supportability factor, the regulations provide that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” Id. § 404.1520c(c)(1). As to the consistency factor, the regulations provide that “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id. § 405.1520c(c)(2). While the ALJ “may, but [is] not required to, explain how [he] considered” the factors of relationship with the claimant, the medical source's specialization, and other factors, the ALJ “will explain how [he] considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings ....” Id. § 404.1520c(b)(2) (emphasis added). An ALJ must provide sufficient explanation to allow a reviewing court to “trace the path of [the] adjudicator's reasoning[.]” Amber H. v. Saul, No. 20-CV-00490 (ATB), 2021 WL 2076219, at *6 (N.D.N.Y. May 24, 2021) (quoting Revisions to Rules Regarding the Evaluation of Medical Evidence (“Revisions to Rules”), 2017 WL 168819, 82 Fed.Reg. 5844-01, at 5858 (Jan. 18, 2017) (“We expect that the articulation requirements in these final rules will allow a . . . reviewing court to trace the path of an adjudicator's reasoning[.]”)).
DISCUSSION
Plaintiff primarily argues that the ALJ erred in his evaluation of Dr. Azeez's opinion and that the RFC determination is not supported by substantial evidence for the same reasons found by the Court in assessing the ALJ's 2019 decision. (Pl.'s Mem., ECF No. 17, at 5, 8-16.) In particular, Plaintiff asserts that the ALJ substituted his lay interpretation of the raw medical evidence over that of any medical opinion in order to find that Plaintiff had the ability to perform sedentary work. (See id.) Plaintiff further argues that the ALJ erred in his consideration of Vellone's subjective complaints and that ALJ's findings at step one and step five were not supported by substantial evidence. (Id. at 16-25.) For the reasons set forth below, the Court finds that the ALJ's RFC determination is not supported by substantial evidence and that this action should again be remanded for further administrative proceedings.
I. The ALJ's Evaluation Of Dr. Azeez's Opinion
The ALJ found that the newly submitted treatment records provided partial support for Dr. Azeez's opinion. (R. 456.) The ALJ pointed to a treatment notes indicating that Vellone had difficulty bending or lifting more than 20 pounds, MRI results showing impingement and notes referencing restricted range of motion and back pain. (R. 456-57 (citing R. 662, 634).) However, the ALJ concluded that the additional records did “not provide significant support for the less than sedentary RFC” and, instead, appeared to document that Vellone worked well after the alleged onset date. (Id. (citing 670-71).) The ALJ then found that Dr. Azeez's opinion was “of little persuasive value” citing “benign physical exam findings and relative lack of treatment[,]” which the ALJ found supported and were consistent with the “capacity to perform sedentary work, at a minimum.” (R. 457 (citing R. 272, 299, 313, 320, 325, 668-69.) The ALJ also found no objective evidence to support a restriction in the upper extremities. (See id.)
With respect to supportability, the ALJ acknowledged that Dr. Azeez's opinion was at least partially supported, including by treatment notes documenting back pain and, most significantly, the December 2017 MRI results showing impingement. (R. 456-57.) The ALJ nonetheless concluded, without explanation, that the records “d[id] not provide significant support for the less than sedentary RFC.” (R. 457.) However, as Plaintiff contends, and as discussed further below, the ALJ cannot himself determine whether or not the MRI results support Dr. Azeez's opinion. Accordingly, I find that the ALJ's supportability determination is not supported by substantial evidence.
Moreover, with respect to consistency, the ALJ found that “benign physical findings” and “relative lack of treatment” were consistent with Vellone's ability to perform sedentary work, but failed to explain how those findings were inconsistent with Dr. Azeez's opinion, particularly regarding Vellone's ability to sit. The ALJ also failed to address evidence in the record that was consistent with Dr. Azeez's opinion, such as treatment notes from Dr. Chang and Dr. Solberg documenting objective medical signs such as positive straight leg raising, as well as indications that Vellone's pain was exacerbated by sitting. (R. 314, 328; see also Pl.'s Mem. at 5.) The ALJ also relied on a “relative lack of treatment” but did not discuss evidence of escalating treatment, including Dr. Chang's steroid injections and Dr. Solberg's recommendation that Vellone undergo surgery. (R. 326.) Thus, the Court agrees with Plaintiff that the ALJ committed similar errors as in his prior analysis and that the ALJ's determination regarding consistency is not supported by substantial evidence. See Vellone v. Saul, No. 20-CV-00261 (RA) (KHP), 2021 WL 319354, at *9 (S.D.N.Y. Jan. 29, 2021), report and recommendation adopted sub nom. Vellone on behalf of Vellone v. Saul, 2021 WL 2801138 (S.D.N.Y. July 6, 2021).
In any event, even if the Court were to find no error in the ALJ's consideration of the Dr. Azeez's opinion, the Court finds that the RFC determination still is not supported by substantial evidence because there is otherwise no evidence of Vellone's functional limitations to support the ALJ's RFC determination.
II. The ALJ's RFC Determination
It is well settled that the RFC “is an administrative finding, not a medical one.” Christopher H. v. Comm'r of Soc. Sec., No. 20-CV-01463 (DB), 2022 WL 2109180, at *4 (W.D.N.Y. June 10, 2022); see also 20 C.F.R. § 404.1527 (indicating that “the final responsibility for deciding these issues [including RFC] is reserved to the Commissioner”). Thus, an ALJ is tasked with weighing the evidence in the record and reaching an RFC finding based on the record as a whole. See Tricarico v. Colvin, 681 Fed.Appx. 98, 101 (2d Cir. 2017). It is within the ALJ's discretion to resolve genuine conflicts in the evidence. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).
The Court is mindful that the ALJ is not required to accept Dr. Azeez's opinion simply because it is the only opinion in the record. See Breinin v. Colvin, No. 5:14-CV-01166 (LEK) (TWD), 2015 WL 7749318, at *3 (N.D.N.Y. Oct. 15, 2015), report and recommendation adopted, 2015 WL 7738047 (N.D.N.Y. Dec. 1, 2015) (“It is the ALJ's job to determine a claimant's RFC, and not to simply agree with a physician's opinion.”). Indeed, an ALJ may formulate an RFC absent any medical opinions where “the record contains sufficient evidence from which an ALJ can assess the [plaintiff's] residual functional capacity[.]” Monroe, 676 Fed.Appx. at 8; see also Michael A. v. Comm'r of Soc. Sec., No. 21-CV-00085 (LJV), 2023 WL 185419, at *3 (W.D.N.Y. Jan. 13, 2023) (“Stated another way, without a medical opinion supporting a claimant's functional capacity, the ALJ cannot base the claimant's RFC only on raw medical data unless that data allows a layperson to do so and the ALJ explains the commonsense link between the data and the RFC.”). However, in the Court's view, this is not such a case.
“Courts are more likely to find that a treating physician's opinion was necessary where a plaintiff has complex or numerous impairments, where there are no acceptable opinions from non-treating sources, and where the record does not otherwise include informal assessments of a plaintiff's functionality by a medical provider.” Hart v. Comm'r of Soc. Sec., No. 21-CV-03104 (NSR) (AEK), 2023 WL 2873247, at *8 (S.D.N.Y. Feb. 16, 2023) (comparing cases), report and recommendation adopted, 2023 WL 2424129 (S.D.N.Y. Mar. 9, 2023). Unlike in cases cited by the Commissioner, here, the record does not contain sufficient non-opinion evidence from which the ALJ could assess Vellone's RFC, such as consultative examinations, state agency consultants, or other findings regarding functional limitations. (See Pl.'s Reply Mem. at 2-3 (distinguishing cases).) Moreover, the treatment records refer to medical findings, such as MRI test results, that the ALJ is not equipped to interpret without a medical opinion. See Donofrio v. Saul, No. 18-CV-09968 (ER), 2020 WL 1487302, at *8 (S.D.N.Y. Mar. 27, 2020) (“[T]he ALJ is not a medical professional who can interpret the MRIs to assess [the plaintiff's] RFC.”) (internal quotation marks and alterations omitted); see also Harold W.J. v. Comm'r of Soc. Sec., No. 18-CV-00146 (ATB), 2019 WL 1410350, at *10 (N.D.N.Y. Mar. 27, 2019) (lack of opinion from medical expert “left the ALJ in the untenable position of interpreting raw medical data to arrive at an RFC determination”); Martin v. Berryhill, No. 16-CV-06184 (FPG), 2017 WL 1313837, at *4 (W.D.N.Y. Apr. 10, 2017) (ALJ was not permitted to render “common sense judgment” about the plaintiff's functional capacity when treatment notes contained complex medical findings). Thus, the Court finds that the ALJ's RFC determination is not supported by substantial evidence.
Accordingly, the Court need not address Plaintiff's arguments regarding the ALJ's assessment of Vellone's subjective complaints and the ALJ's step five finding, both of which are impacted by the ALJ's RFC determination. See Millett v. Berryhill, No. 17-CV-07295 (PGG) (HBP), 2019 WL 2453344, at *22 (S.D.N.Y. Jan. 11, 2019) (citing Rosa, 168 F.3d at 82 & n.7), report and recommendation adopted, 2019 WL 1856298 (S.D.N.Y. Apr. 25, 2019); Lawson v. Berryhill, No. 17-CV-00247 (JGM), 2018 WL 1401285, at *11 (D. Conn. Mar. 20, 2018) (court “need not address the ALJ's step five decision as such decision must be revisited after consideration of plaintiff's RFC on remand”).
III. The ALJ's Step One Determination
The Court also addresses the parties' arguments regarding the ALJ's step one finding since that finding could provide an alternative basis to uphold the ALJ's decision. However, the Court finds that the ALJ's step one finding is not supported by substantial evidence.
“Substantial gainful activity” is “work activity that is both substantial and gainful.” 20 C.F.R. § 404.1572. Work is considered “substantial” if it “involves doing significant physical or mental activities,” regardless of whether it “is done on a part-time basis or if [the claimant] do[es] less, get[s] paid less, or ha[s] less responsibility than when [he or she] worked before.” Id. § 404.1572(a). Work activity is “gainful” if it is “the kind of work usually done for pay or profit, whether or not a profit is realized.” Id. § 404.1572(b). “In determining whether work constitutes [substantial gainful activity], the ‘primary consideration' is the claimant's earnings.” Figueroa-Plumey v. Astrue, 764 F.Supp.2d 646, 650 (S.D.N.Y. 2011) (citing § 404.1574(a)(1)).
In finding that Vellone had engaged in substantial gainful activity during the relevant period, the ALJ relied upon several notes in treatment notes that Vellone was working after the alleged onset date. (R. 452-53.) The ALJ does not refer to any earnings data, but speculates that Vellone was working “off the books.” (See id.) The Court agrees with Plaintiff that, under the circumstances here, these notations do not constitute substantial evidence to support the ALJ's step one finding. Cf. Torres v. Colvin, No. 12-CV-06527 (ALC) (SN), 2014 WL 4467805, at *4 (S.D.N.Y. Sept. 8, 2014) (inconsistencies between plaintiff's testimony and medical records containing “at least sixteen references to [the plaintiff's] work history of varying detail and frequency” supported ALJ's determination that plaintiff engaged in substantial gainful activity). Even if Vellone had engaged in some work after the alleged onset date, the ALJ does not cite to evidence to support the conclusion that such work rose to the level of substantial gainful activity.
IV. Nature Of Remand
Plaintiff asks the Court to remand solely for the calculation of benefits. (Pl.'s Mem. at 2526.) “‘When there are gaps in the administrative record or the ALJ has applied an improper legal standard . . . remand to the Secretary for further development of the evidence' is generally appropriate.” Schmelzle v. Colvin, No. 12-CV-01159 (GLS) (ATB), 2013 WL 3327975, at *9 (N.D.N.Y. July 2, 2013) (quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)). “On the other hand, remand for determination of benefits is warranted when the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose.'” Id. (citing Parker, 626 F.2d at 235); see also Rucker v. Kijakazi, 48 F.4th 86, 95 (2d Cir. 2022). “A record contains ‘persuasive proof' of disability when there is ‘no apparent basis to conclude' that additional evidence ‘might support the Commissioner's decision.'” Jeffery Z. v. Kijakazi, No. 21-CV-01458 (MPS), 2023 WL 8115041, at *23 (D. Conn. Feb. 21, 2023) (quoting Rosa, 168 F.3d at 83).
Based on the current record, the Court cannot say that there is “persuasive proof” that Vellone was disabled as of June 15, 2016 or that the Commissioner could not, on remand, develop or articulate further evidence supporting the ultimate conclusion that Vellone was not disabled during the relevant time period. Although additional evidence may not be available from any of Vellone's treating doctors, the Commissioner may be able to employ a medical expert to review all of the medical evidence of record and generate evidence supporting a finding that plaintiff was not disabled during the relevant time period. Accordingly, the Court recommends that this case again be remanded for further proceedings and strongly suggests that the Commissioner seek out a medical expert to render a relevant opinion. See Schmelzle, 2013 WL 3327975, at *14 (suggesting use of medical expert on remand); see also Sinopoli v. Berryhill, No. 18-CV-06558 (JGK) (KHP), 2019 WL 3741051, at *11 (S.D.N.Y. May 31, 2019) (“On remand, this Court suggests that the Commissioner seek out a medical expert to determine from the diagnostic findings whether Plaintiff is able to meet the lift and carry requirements of light work or better explain or better explain the basis for drawing an inference that Plaintiff can in fact lift 20 pounds.”), report and recommendation adopted, 2019 WL 3734059 (S.D.N.Y. June 27, 2019).
CONCLUSION
For the reasons set forth above, I respectfully recommend that Plaintiff's motion be GRANTED IN PART and that this action be remanded for further administrative findings.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).