Opinion
20-cv-3482 (VB) (AEK)
03-17-2022
PETER WASSERMAN, Plaintiff, - v. KILOLO KIJAKAZI,[1] ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
TO: THE HONORABLE VINCENT BRICCETTI, U.S.D.J.
This case was originally referred to Magistrate Judge Lisa Margaret Smith on May 5, 2020. ECF No. 6. The case was reassigned to the undersigned on October 19, 2020.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE, United States Magistrate Judge.
Plaintiff Peter Wasserman brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security (the “Commissioner”), which denied his application for benefits under the Social Security Act (the “Act”). ECF No. 1. Currently pending before the Court are Plaintiff's motion, and the Commissioner's cross-motion, for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ECF Nos. 16, 18. For the reasons that follow, I respectfully recommend that the Plaintiff's motion (ECF No. 16) be DENIED, that the Commissioner's motion (ECF No. 18) be GRANTED, and that judgment be entered in favor of the Commissioner.
BACKGROUND
I. Procedural History
On November 17, 2016, Plaintiff filed an application for disability insurance benefits (“DIB”) pursuant to the Act, alleging September 8, 2011 as the onset date of his disability. Administrative Record (“AR”) 85. Plaintiff claimed he was disabled due to World Trade Center (“WTC”)-related chronic sinusitis, WTC-related gastroesophageal reflux disease (“GERD”), lumbar spine derangement, and right knee derangement. AR 85, 184. Following the denial of Plaintiff's claim by the Social Security Administration (the “SSA”) on February 1, 2017, Plaintiff requested a hearing before an administrative law judge (“ALJ”). AR 84-94, 103116. An administrative hearing was held on August 22, 2018; Plaintiff testified by video at the hearing, and vocational expert Renee Jubrey testified by telephone. AR 27-73.
Citations to “AR” refer to the certified copy of the administrative record filed by the Commissioner. ECF No. 12.
ALJ Robert Gonzalez issued a decision on March 4, 2019, finding that Plaintiff was not disabled within the meaning of the Act from September 8, 2011 through December 31, 2016, the date last insured. AR 8-26. Plaintiff subsequently filed a request for review of the ALJ's decision with the SSA's Appeals Council, which was denied on February 28, 2020. AR 1-7, 169-70. That made the ALJ's March 4, 2019 decision the final decision of the Commissioner.
The “date last insured” is the last date a claimant is eligible to receive DIB, and the date is calculated based on the claimant's work history. Specifically, “[t]o qualify for Social Security [DIB], a claimant generally must, inter alia, have earned at least twenty ‘quarters of coverage' over the ten-year period prior to the onset of disability.” Feliciano v. Colvin, No. 12-cv-6202 (PGG), 2015 WL 1514507, at *1 n.1 (S.D.N.Y. Mar. 31, 2015). “[W]hen a claimant does not show that a currently existing condition rendered her disabled prior to her date last insured, benefits must be denied.” Mauro v. Berryhill, 270 F.Supp.3d 754, 762 (S.D.N.Y. 2017). Here, Plaintiff does not dispute that his “date last insured” for purposes of his claim for DIB was December 31, 2016. Accordingly, Plaintiff was required to establish that his disability arose on or before December 31, 2016, to qualify for DIB. See AR 12.
The instant lawsuit, seeking judicial review of the ALJ's decision, was filed on May 4, 2020. ECF No. 1.
II. Non-Medical Evidence
Plaintiff was born in 1964. AR 181. He has a degree in history from the State University of New York at Oswego. AR 59-60. From September 1991 until he stopped working in September 2011, Plaintiff was employed by the Fire Department of the City of New York (“FDNY”), first as a firefighter and later as a lieutenant. AR 34-35. Plaintiff retired from the FDNY in 2011 after the FDNY Pension Fund granted him disability status based on his chronic sinusitis. AR 656.
III. Medical Evidence
a. Lumbar Degenerative Disc Disease i. Dr. Robert S. Goldstein
Dr. Goldstein first saw Plaintiff on September 8, 2011. AR 720-21. Plaintiff complained of lower back pain with prolonged standing, sitting, and bending that had started approximately one year before, as well as some tingling and numbness in both his legs. AR 720. Dr. Goldstein diagnosed a herniated nucleus pulposus right L4-5, and prescribed Medrol Dosepak, an oral steroid. AR 721. When Plaintiff returned to Dr. Goldstein on October 6, 2011, he reported no improvement and was prescribed Mobic, an NSAID (non-steroidal anti-inflammatory drug), and Ultracet for pain. AR 719. Plaintiff underwent an MRI scan of his lumbar spine a week later, and when Dr. Goldstein compared his MRI to a prior scan from August 2010, he found that “the new MRI showed improvement,” though Plaintiff continued to complain of lower back pain with frequent radicular pain. AR 718. Dr. Goldstein referred Plaintiff for physical therapy. Id. Plaintiff returned to Dr. Goldstein on February 23, 2012, complaining of low back pain with bending, standing, and lifting for long periods of time. AR 717. Dr. Goldstein noted bilateral spasms in the lumbar spine during Plaintiff's physical examination, and decreased range of motion for flexion, extension, and lateral bending. Id. Dr. Goldstein instructed Plaintiff to take Naproxen twice a day-Plaintiff reported taking “no pain medication,” despite prior prescriptions-and recommended physical therapy and stretching. Id.
On July 18, 2012, Plaintiff again saw Dr. Goldstein, complaining of lower back pain with associated radicular pain in both legs with numbness and tingling radiating down to both shins. AR 716. Plaintiff reported that he was not currently taking medication for pain, but stated that he had taken Naproxen and that it had provided him with mild relief. Id. Plaintiff had not started physical therapy, but did stretches at home. Id. Dr. Goldstein told Plaintiff to return in four weeks, but he did not. Id.
Plaintiff's next appointment with Dr. Goldstein was more than four years later, on September 20, 2016. At that time Plaintiff had renewed complaints of lower back pain with worsening symptoms, including tightness, radicular pain down his right lower extremities, and numbness in his right leg. AR 561. Dr. Goldstein's examination of Plaintiff's lumbar spine revealed bilateral pain and spasm, greater on the right side. Id. An x-ray of Plaintiff's lumbar spine was taken at this visit, and Plaintiff was given prescriptions for Meloxicam and Tramadol for pain, and Flexeril, a muscle relaxant, to take at night. AR 561, 567. Plaintiff saw Dr. Goldstein again on October 19, 2016, complaining of pain in the lumbar spine that radiated down the front leg. AR 583. Dr. Goldstein reported that Plaintiff was “[t]otally disabled, not working,” and had a “permanent impairment,” and ordered another MRI. Id. An MRI of the spine taken on November 3, 2016 revealed multilevel mild discogenic degenerative disease and facet arthrosis. AR 564-65, see also 729-30.
Plaintiff returned to Dr. Goldstein's office on five occasions in 2017, after the date last insured; he reported that his back pain and leg symptoms had not improved, and that the pain now radiated down both of his lower extremities. See AR 585-95. Plaintiff was continued on conservative treatment, with medication and exercises, through June 2018. Id.
When Dr. Goldstein last examined Plaintiff on June 26, 2018, Plaintiff reported that he had been experiencing increasing pain and symptoms over the past two weeks, with increasing pain on the left side of his lower back and radiating pain down his left lower extremity to his toes. AR 693. Plaintiff reported increasing pain and limitation of motion of both hips as well, with difficulty going up and down stairs, and difficulty standing, sitting, bending, and squatting. Id. Dr. Goldstein noted that Plaintiff was ambulating with pain in both hips, with pain radiating down his left lower extremities. Id. An x-ray of Plaintiff's pelvis and hips revealed moderate osteoarthrosis in both hips. AR 694. Plaintiff was given new prescriptions for Tramadol, Mobic, and Flexeril. Id.
On June 26, 2018, Dr. Goldstein completed a functional assessment and medical narrative report for Plaintiff. AR 688-95. Dr. Goldstein diagnosed Plaintiff with bilateral primary osteoarthritis of both hips and continued lower back pain with radiculopathy. AR 694. Dr. Goldstein opined that Plaintiff had a 100 percent permanent impairment as a result of the ongoing conditions in his lumbar spine and bilateral hips, and that “[s]ince September 2011, [Plaintiff] has been totally disabled.” Id. Dr. Goldstein concluded that for up to one-third of an eight-hour workday Plaintiff could lift and/or carry objects weighing between five and 10 pounds, but if he were required to lift and/or carry objects for up to two-thirds of an eight-hour workday, Plaintiff could only lift and/or carry objects weighing less than five pounds. AR 688. In addition, Dr. Goldstein assessed that Plaintiff would be limited in his ability to sit during an eight-hour workday, and would be able to spend less than two hours standing and/or walking in an eight-hour workday. AR 688, 694. Dr. Goldstein also asserted that Plaintiff would require frequent breaks, would require an average of two or more sick days per month, and would require medication that interferes with his ability to work. AR 689.
Dr. Goldstein's opinions as to the scope of this limitation are contradictory-in the functional limitation form, he indicated that Plaintiff could sit for less than two hours during an eight-hour workday, AR 688, but in the narrative report, he wrote that Plaintiff could sit for less than six hours in an eight-hour day, AR 694.
On September 25, 2018, Dr. Goldstein responded to written questions from ALJ Gonzalez. AR 749-52. Dr. Goldstein stated that he had been an orthopedic surgeon for 49 years. AR 749. He reported that he had reviewed the FDNY Medical Board minutes from June 2, 2011, multiple x-rays of the lumbar spine and pelvis indicating herniated lumbar discs, degenerative changes, and osteoarthritis of the hips, and physical examinations from September 8, 2011 to June 26, 2018. Id. In addition, Dr. Goldstein explained that his evaluations of Plaintiff's range of motion for his spine and hips lasted 20 minutes each, that he evaluated Plaintiff's strength using resistance, and that he made Plaintiff bend and squat. AR 750. In addition, Dr. Goldstein noted degenerative changes in Plaintiff's lumbar spine based on restricted motion, complaints of pain, and weakness; changes in Plaintiff's hips based on Plaintiff's ability to squat, bend, and crawl; and limits in Plaintiff's lifting abilities by what Plaintiff could do without causing harm to himself. AR 750-51. Dr. Goldstein also reported that he questioned Plaintiff about his functioning and what activities he was able to do on a daily basis. AR 751.
ii. Dr. Stephen Huish
Plaintiff saw Dr. Huish for a pain management evaluation on October 25, 2016. AR 60708. The records reflect that at that appointment, Plaintiff complained of severe low back pain with radiating pain, numbness, and tingling to the right leg, and reported that he was “having difficulty with his activities of daily living.” AR 607. Dr. Huish noted Plaintiff's report that past trigger point and epidural injections had not provided him with any relief, and that Plaintiff had not seen a surgeon. Id. Further, Dr. Huish indicated that Plaintiff had tried physical therapy in the past, recently underwent a lower EMG (electromyography) / NCV (nerve conduction velocity) study, and was awaiting a lumbar MRI. Id.
According to Dr. Huish, Plaintiff presented as awake, alert, and oriented at his physical examination, but appeared to be in moderate distress due to pain, and had difficulty sitting. Id. Plaintiff's spinal evaluation revealed lumbar dorsal hypertonicity with some right lower lumbar spasm, with no tenderness or trigger point. Id. Plaintiff's lumbar flexion was to 40 degrees and his extension was limited to 10 degrees with increased pain on extension and facet joint loading. Id. Plaintiff's deep tendon reflexes were 1-2 out of 4 and symmetric, and his motor power was weak in his right lower leg, but there was no sign of deep vein thrombosis or infection. Id. Dr. Huish reported that he discussed “additional treatment options” with Plaintiff, including an epidural injection series, but Plaintiff was reluctant to undergo such treatment, as he felt his past experience was not helpful and “seemed to exacerbate” his pain. Id. Dr. Huish suggested that Plaintiff see a surgeon if his pain persisted, and told him to continue his current medications. Id.
“Normal ranges of motion for the lumbar spine are as follows: 60 degrees of flexion, 25 degrees of extension, 25 degrees of left and right lateral flexion, and 30 degrees of left and right rotation.” Villarreal v. Colvin, No. 13-cv-6253 (LGS), 2015 WL 6759503, at *6 (S.D.N.Y. Nov. 5, 2015); see also Livestrong, Normal Human Ranges of Motion, https://www.livestrong.com/article/257162-normal-human-range-of-motion/ (last visited March 15, 2022).
b. Right Elbow Pain i. Dr. Goldstein
At his July 18, 2012 appointment with Dr. Goldstein, Plaintiff also complained of “continued” right elbow pain. AR 716. Plaintiff noted that he had tried applying “tiger balm” (an ointment for muscle aches), but the pain relief was minimal. Id. Dr. Goldstein diagnosed Plaintiff with right lateral epicondylitis-commonly known as “tennis elbow”-and gave him an injection of Kenalog and lidocaine in his right elbow lateral epicondylar area. Id. Plaintiff was instructed to apply heat to the affected area, and return in four weeks. Id.
ii. Crystal Run Healthcare
On March 23, 2013, Plaintiff visited Crystal Run Healthcare (“Crystal Run”), complaining of right lateral elbow pain that had persisted for approximately a year. AR 376. Plaintiff ranked the pain as approximately a 6 on a scale of 10, and described it as “aching.” Id. Plaintiff's elbow range of motion was intact, and he felt no pain to palpation of the medial elbow epicondyle. AR 377. Dr. Vipul Patel assessed Plaintiff with acute lateral epicondylitis, and administered a lidocaine injection. AR 377-78. Dr. Patel commented that he discussed “the nature of lateral epicondylosis” with Plaintiff, noting that “[t]here is no known cause although overuse is often an exacerbating factor.” AR 378. Dr. Patel also noted that “[s]ymptoms can be managed with relatively non-specific treatments: non-narcotic pain medication, ice, or heat,” as well as a tennis elbow strap and “stretching and strengthening exercises with therapists.” Id. Plaintiff visited Crystal Run for a physical therapy evaluation on March 28, 2013, and completed a number of exercises for a total of 15 minutes. AR 374-75. Patrick Rossillo, Plaintiff's physical therapist, assessed Plaintiff's rehabilitation potential as “good,” and stated that Plaintiff would achieve a “pain goal” of 2/10, and a “strength goal” of 5/5, within three weeks. AR 375.
Plaintiff visited Crystal Run again on September 5, 2013, complaining of pain “over the middle of the right arm.” AR 372. According to Plaintiff's treatment notes, he was lifting a workbench approximately two days before when he “heard a sudden popping sensation.” Id. Plaintiff described his pain as “aching,” and estimated it was approximately a 2 out of 10 on the pain scale. Id. Dr. Pankaj Kaw observed “mild tenderness present over the middle of the right biceps,” but noted that the range of motion in the right elbow was full, and Plaintiff's strength was 4+ out of 5. AR 373. Plaintiff was assessed with a right bicipital strain, and was advised to ice the area and avoid heavy lifting for the next three weeks. Id.
c. Left Elbow Pain
i. Crystal Run Healthcare
On September 23, 2013, Plaintiff visited the Crystal Run clinic complaining of pain over the posterior left elbow, and a loss of strength in his elbow. AR 370. Plaintiff reported that he had been “working in th[e] Gym on a bike when he suddenly felt a ‘popping' sensation.” Id. Plaintiff reported experiencing an “aching” pain that was at ¶ 7 on a scale of 10 for three days. Id. While Plaintiff experienced relief with rest, he said the pain worsened with bending. Id. Dr. Kaw determined that Plaintiff had a triceps tendon tear in his left elbow, and planned to “[c]onsult Dr. Inzerillo for surgical fixation of the tear.” AR 371.
That same day, Dr. Christopher Inzerillo reported that Plaintiff had been “working out when he fell and braced himself with his left arm and felt a pop in the left elbow,” leading to swelling and weakness in the posterior elbow. AR 365. Dr. Inzerillo ordered an MRI on Plaintiff's left elbow, which showed a triceps tendon tear. AR 363, 365-66. On September 30, 2013, Dr. Inzerillo reviewed the results of the MRI and explained the risks and benefits of surgery to Plaintiff. AR 361. Dr. Inzerillo performed surgery to repair Plaintiff's left elbow triceps tendon rupture on October 4, 2013. See AR 353-54.
Plaintiff visited Crystal Run post-operation on October 14, 2013, and was “doing well” with “no pain.” AR 359-60. At his next appointment on October 28, 2013, Plaintiff reported “expected pain” in his left elbow and wore a brace. AR 357-58. Plaintiff was “instructed in active range of motion exercises.” AR 358. He returned for another post-operative visit on November 12, 2013. AR 355-56. At that time, Plaintiff still wore a brace and performed his range of motion exercises, and although he had no pain, he complained of feeling “uncomfortable.” AR 355. Plaintiff's brace was unlocked to 120 degrees of elbow flexion, and he was instructed to continue his gentle active assisted range of motion exercises at home for two more weeks, after which he would begin physical therapy. AR 356.
Plaintiff began physical therapy for his left triceps on December 2, 2013. AR 454. The physical therapist, Jacqueline Gaspard, reported that Plaintiff had “ruptured his triceps when transitioning from running to biking during [a] triathlon workout.” Id. Plaintiff reported “minimal pain on average, but increased soreness with movement.” Id. During Plaintiff's physical therapy visits between December and February 2014, he reported continuous improvement in his pain-as of February 27, 2014, Plaintiff reported “feeling good,” with no increase in symptoms. AR 464; see also 392, 395, 398, 401, 404, 407, 410, 413, 417, 420, 425, 428, 431, 434, 437, 440, 443, 448, 451, 467, 470, 473, 480, 483. Plaintiff's regimen at that time included strengthening exercises involving 30 repetitions of five-pound weights; additional exercises such as standing shoulder extensions, bicep curls, and counter push-ups; and a home exercise program involving elbow range of motion stretches, elbow flexion stretches, and grip stretches. AR 464-65; see also 392-93, 395-96, 398-99, 401-02, 404-03, 407-08, 410-11, 413- 14, 417-18, 420-21, 425-26, 428-29, 431-32, 434-35, 437-38, 440-41, 443-44, 448-49, 451-52, 467-68, 470-71, 473-74, 480-81, 483-84. By Plaintiff's annual physical exam on February 27, 2014, he reported that he felt well overall, and had no acute complaints. AR 460.
In March and April 2014, Plaintiff continued to receive physical therapy and reported ongoing improvement. AR 379, 382, 385, 492, 495, 498, 501, 504. On April 23, 2014, Plaintiff indicated that he “ha[d] been exercising at home this week,” and that his elbow was feeling better. AR 379. Plaintiff was subsequently discharged from physical therapy with a progressive home exercise plan. AR 381. During a follow-up visit for his left elbow pain with Dr. Inzerillo on June 2, 2014, Plaintiff reported that he was “feeling much better since his last visit,” and had pain with some movement at times. AR 368. Plaintiff rated his pain as a 0 on a scale of 10. AR 369.
ii. Dr. Huish
During Dr. Huish's examination of Plaintiff on October 25, 2016, he reported that Plaintiff's upper extremity examination was within normal limits, with the exception of his left triceps, which revealed a “well-healed surgical site,” and limited end ranges of extension with weakness of the triceps. AR 608.
d. Right Knee Pain
i. Crystal Run Healthcare
On September 21, 2015, Plaintiff complained of right knee pain, specifically tightness along the back of his knees, and pain radiating down the front of the knee. AR 817-19. Plaintiff assessed that his pain was a 2 out of 10 on the pain scale. AR 819. Dr. Inzerillo noted that Plaintiff had “avidly done biking and running,” and that “the next day after rigorous activity he will feel pain.” AR 817. Plaintiff's right knee had a range of motion from 0-135 degrees, and no swelling or tenderness. AR 818. Plaintiff had a positive patellar grind test, but x-rays of his knee were “unremarkable.” AR 818-19. Dr. Inzerillo assessed Plaintiff with knee pain and possible sciatica, and recommended an MRI in the right knee to evaluate his knee for a possible tear. AR 819.
Plaintiff's September 28, 2015 MRI showed mild articular cartilage thinning at the medial femoral-tibial joint compartment, and he was assessed with a mild medial compartment degenerative change, without meniscal or ligamentous tear. AR 733-34, see also 946-47. At a follow-up visit on November 3, 2015, Plaintiff complained of persistent pain that was “more radicular in nature,” starting in his groin and radiating through his leg all the way down into his ankle. AR 815. Plaintiff described the pain as “burning.” Id. Plaintiff had full range of motion of the knee. Id. Dr. Inzerillo noted that Plaintiff's “symptoms today are more consistent with radiculopathy” and “sciatica-type symptoms,” and recommended that Plaintiff begin physical therapy for lower back pain and sciatica. AR 816. Dr. Inzerillo also recommended a consultation with a spine surgeon. Id.
e. Sinusitis and Vertigo
i. ENT and Allergy Associates, LLP
On March 12, 2010, Dr. Michael Shohet performed endoscopic sinus surgery to address Plaintiff's chronic sinusitis, nasal septal deformity, and nasal airway obstruction. AR 553-56. Dr. Shohet noted that Plaintiff was “an otherwise healthy 45 year-old firefighter, who has been complaining of persistent nasal airway obstruction, recurring episodes of acute sinusitis . . . and headaches.” AR 553. At a follow-up visit on December 1, 2010, Plaintiff stated that his headaches had improved, and that he was using Nasonex and sinus rinses. AR 525. Dr. Shohet noted that Plaintiff's condition was “well controlled,” and directed him to continue using sinus rinses and topical nasal steroids. AR 526. On March 11, 2011, Plaintiff reported that he had some persistent postnasal drainage, and in late December had had an acute exacerbation of his chronic rhinosinusitis which had since been resolved. AR 527. Dr. Shohet noted that Plaintiff experienced “persistent sensitivities and exacerbation of his symptoms with exposure to smoke.” AR 528. Dr. Shohet advised that Plaintiff continue topical medical therapy for chronic rhinosinusitis, and that he “minimize any exposure to smoke.” Id. As reflected in the medical records, Plaintiff had periodic visits with Dr. Shohet in the ensuing years with various complaints of sinus infections, headaches, vertigo, and nausea. AR 529-35, 540-42, 548-49, 609-15.
ii. FDNY Pension Fund - Subchapter II Medical Board
On June 2, 2011, the 1-B Medical Board of the FDNY Pension Fund considered Plaintiff's application for disability benefits based on his sinus condition. AR 656. Plaintiff had been referred to the Board's impartial otolaryngologist, Dr. George Alexiades, who subsequently provided a report and determined that Plaintiff's sinus condition “disables him from full fire duty.” Id. The Board found that Plaintiff's condition was permanent and recommended that Plaintiff be granted disability status for chronic sinusitis. Id. The Board also noted that Plaintiff “may engage in a suitable occupation.” Id.
f. Consultative Examiners
i. Dr. Jay Dinovitser
Dr. Jay Dinovitser saw Plaintiff on January 18, 2017 for a consultative examination on behalf of the New York State Division of Disability Determination. AR 569-74. Among other things, Plaintiff complained of tightness and right knee pain of moderate intensity that had worsened over time. AR 569. He also reported having lower back pain for eight years that had worsened over time, with pain that was sometimes moderate and occasionally severe in intensity. Id. Plaintiff described this lower back pain as aching, and that he experienced intermittent “throbbing and burning” radiation down the side of his right leg. Id.
Plaintiff reported that he could sit for 30 to 45 minutes, could stand for 20 to 30 minutes, and could walk for 20 to 30 minutes. Id. He also asserted that he was unable to lift heavy objects. Id. With respect to activities of daily living, Plaintiff reported that he cooked a few times per week, cleaned three times per week, did laundry once per week, and shopped once per week, and that he performed child care daily. Id.
According to Dr. Dinovitser's observations, Plaintiff appeared to be in no acute distress, and ambulated with a normal gait. Id. Plaintiff was unable to walk on his toes, could walk on his heels with difficulty, and could squat 50 percent of full. Id. Plaintiff used no assistive devices and did not need help changing for the exam, but declined to get onto the exam table and instead sat on a chair. Id. During the musculoskeletal exam, Plaintiff's cervical spine showed full flexion, with extension to 40 degrees, lateral flexion to 40 degrees on the left, full lateral flexion on the right, and rotary movement of 60 degrees on the left and 70 degrees on the right.AR 572. Plaintiff's lumbar spine showed flexion to 70 degrees, extension to 15 degrees, lateral flexion to 20 degrees on the left and full on the right, and rotary movement of 25 degrees on the right and full on the left. Id. Dr. Dinovitser observed that Plaintiff had mild paraspinal tenderness present in the lower lumbar spine. Id. Plaintiff had full range of motion in his shoulders, elbows, forearms, wrists, hips, and ankles. Id. He also demonstrated full range of motion of the left knee; in the right knee, Plaintiff had full flexion, and his extension was 160 degrees out of 180. Id. Plaintiff had mild posterior joint tenderness in the right knee, but no redness, swelling, or effusion. Id.
“Normal measurement for cervical flexion (moving the head forward) is 50 degrees, extension (moving the head backward) is 60 degrees, and lateral rotation (turning to the side) is 80 degrees.” Johnson v. Comm'r of Soc. Sec., No. 17-cv-5598 (BCM), 2018 WL 3650162, at *4 n. 4 (S.D.N.Y. July 31, 2018); Livestrong, Normal Human Ranges of Motion, https://www.livestrong.com/article/95456-normal-neck-range-motion/ (last visited March 15, 2022).
See Villarreal, 2015 WL 6759503, at *6 (normal range of motion for the lumbar spine).
Dr. Dinovitser diagnosed Plaintiff with right knee pain, low back pain, GERD, tinnitus, benign positional vertigo, chronic sinusitis, chronic allergic rhinitis, and reactive airway disease. AR 573. Based on his examination, Dr. Dinovitser concluded that Plaintiff had no limitations in the use of his hands, or in seeing, hearing, speaking, pushing, or pulling; he assessed mild limitations in bending, lifting, carrying, prolonged sitting, standing, walking, and stairs and other climbing, and advised Plaintiff to avoid exposure to respiratory irritants. Id.
ii. Dr. J. Koenig
On January 31, 2017, Dr. J. Koenig, a state agency medical consultant, reviewed many of Plaintiff's medical records, as well as Dr. Dinovitser's medical opinions, and determined that Plaintiff had the following severe impairments: disorder of the back (discogenic and degenerative); disorders of muscle, ligament, and fascia; obesity; and disorder of the gastrointestinal system. AR 87-88. Dr. Koenig concluded that Plaintiff had the following exertional limitations: he could occasionally (cumulatively one-third or less of an eight-hour workday) lift or carry up to 20 pounds, and frequently (cumulatively more than one-third and up to two-thirds of an eight-hour workday) lift or carry 10 pounds; he could stand and/or walk for a total of about six hours in an eight-hour workday, sit for a total of six hours in an eight-hour workday, and could do unlimited pushing and pulling. AR 89. In Dr. Koenig's assessment, Plaintiff had the following postural limitations: he could occasionally climb ramps, stairs, ladders, ropes, or scaffolds; he could occasionally stoop, kneel, crouch, and crawl; and had no limitations with respect to balance. Id. Dr. Koenig additionally found that Plaintiff had no visual, communicative, or environmental limitations. AR 90.
IV. Hearing Testimony
a. Plaintiff's Testimony
Plaintiff testified at the hearing before the ALJ that he tore his triceps when he was trying to get on a bicycle, but fell off and hit the ground. AR 40. He explained that he had had the bike for several months prior to the accident and rode it about once per week for approximately four to five miles, or ten to fifteen minutes. Id. According to Plaintiff, this was the only exercise he was doing at the time, aside from stretching. AR 40-41. Plaintiff testified that he used to exercise a lot, but that it became difficult to exercise after his 2010 back injury. AR 41. Contrary to certain notations in the medical records, Plaintiff testified that he had not joined a gym, did not swim, and had not joined any fitness or training groups. AR 42. Plaintiff testified that since his bicycle accident, he had only tried to use the bicycle “a couple of times.” AR 43.
In addition, Plaintiff testified that he had taken a number of trips since 2011, including traveling to California in 2016 and Korea in 2015. AR 43-45. The trip to Korea was for approximately ten days, and the flight there lasted approximately 12-13 hours. AR 44. Plaintiff also reported that he traveled to Wildwood, New Jersey with his family for vacation approximately two or three weeks before the hearing. Id. Plaintiff testified that he was there for four days, but reported that “my back's been killing me and my hip's been killing me,” so he was unable to stay for longer. AR 44-45.
Plaintiff has one daughter, who was 11 years old at the time of the hearing. AR 45. He reported that he would sometimes drive his daughter to softball practice, about ten minutes away from their home. Id. Plaintiff also testified that he owns a riding lawnmower and does his own mowing. AR 56. He testified, however, that if he is on the riding lawnmower for too long, he will begin to get leg spasms, so he will get off and get back on again. Id. All in all, Plaintiff testified that it takes him approximately one hour and forty-five minutes to mow his lawn. Id. Plaintiff testified that he also cooks “a little bit,” washes dishes “once in a while,” and does some grocery shopping, but his wife does most of the cleaning and she does the laundry. AR 56-57. Plaintiff testified that he does not camp or do other outdoor activities. Id.
The ALJ questioned Plaintiff about the December 2, 2013 physical therapy note from Crystal Run, which stated that Plaintiff “ruptured his triceps when transitioning from running to biking during a triathlon workout.” AR 47-48, 454. Plaintiff testified that he had not been running, or training for a triathlon, and that he had “never done a Triathlon in [his] life.” AR 48. The ALJ also questioned Plaintiff about Crystal Run treatment notes from September 23, 2013, which stated that Plaintiff was complaining of elbow pain sustained “while working out at the gym on a bike.” AR 50-51, 370. Plaintiff asserted that these notes referred to the same incident where he ruptured his triceps, and testified that he had never belonged to a gym. AR 51-52. Plaintiff reported that he had an approximately 30-year-old bike that he kept in his home to keep his weight under control. AR 54. The ALJ also questioned Plaintiff about an incident Plaintiff reported at Crystal Run on September 5, 2013, in which he described pain in his right arm that began after he lifted a workbench two days earlier. AR 54, 372. Plaintiff testified that he was “just moving something in the garage,” and that it was a situation in which he would have normally asked his wife to help him. AR 54.
Plaintiff testified that he would take the train from his home in Orange County, New York, for visits at Dr. Goldstein's office in Manhattan, a journey of approximately an hour and a half. AR 55. Plaintiff testified that Dr. Goldstein prescribed him a number of medications, Id., but according to Plaintiff, the pain medications gave him constipation, and the cyclobenzaprine and meloxicam were “almost like sleeping pills,” in that they made him lethargic, AR 57-58. Plaintiff testified that he had received two epidural injections, but believed they made his back pain worse; he said that he had not had any injections after 2011 because the experience was “horrible,” and he would “rather deal with the pain.” AR 58-59. Plaintiff also noted that his doctor had recommended surgery for his back issues, but he had just gone through his sinus surgery and did not want to undergo another surgery. Id.
b. Vocational Expert Testimony
Renee Jubrey, a vocational expert, testified next. AR 60-69. The ALJ asked Ms. Jubrey to assume a hypothetical person of Plaintiff's age, education, and work history, and asked her to further assume that the hypothetical person had the RFC to engage in a full range of light work, except that the person had the following additional limitations: the person can occasionally climb ramps and stairs; can occasionally climb ladders, ropes or scaffolds; can occasionally stoop, kneel, crouch, and crawl; must avoid all exposure to dust, fumes, and noxious gases; and cannot operate motor vehicles. AR 65. Ms. Jubrey opined that such an individual could perform four jobs from the United States Department of Labor's Dictionary of Occupational Titles (“DOT”) involving light, unskilled work: (1) cashier II (850,000 jobs available nationally); (2) marker (300,000 jobs available nationally); (3) routing clerk (40,000 jobs available nationally); and (4) cafeteria attendant (65,000 jobs available nationally). AR 65-66.
The transcript of the ALJ hearing refers to the vocational expert as “Ms. DuPree,” but it is clear from her resume that her last name is actually “Jubrey.” See AR 319-21.
APPLICABLE LEGAL PRINCIPLES
I. Standard of Review
The scope of review in an appeal from a Social Security disability determination involves two levels of inquiry. First, the court must review the Commissioner's decision to assess whether the Commissioner applied the correct legal standards when determining that the plaintiff was not disabled. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). “‘Failure to apply the correct legal standards is grounds for reversal.'” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
Second, the court must decide whether the Commissioner's decision was supported by substantial evidence. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 106 (quotation marks omitted). When determining whether substantial evidence supports the Commissioner's decision, it is important that the court “carefully consider[] the whole record, examining evidence from both sides.” Tejada, 167 F.3d at 774. “It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). If the “decision rests on adequate findings supported by evidence having rational probative force, [the court] will not substitute [its own] judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
II. Determining Disability
The Act defines “disability” as “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). An individual is disabled under the Act if he or she suffers from an impairment which is “of such severity that he [or she] is not only unable to do his [or her] previous work but cannot . . . engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). “‘[W]ork which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” Id.
Regulations issued pursuant to the Act set forth a five-step process that the Commissioner must follow in determining whether a particular claimant is disabled. See 20 C.F.R. § 404.1520(a)(4). The Commissioner first considers whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), (b). If the claimant is engaged in substantial gainful activity, then the Commissioner will find that the claimant is not disabled; if the claimant is not engaged in substantial gainful activity, then the Commissioner proceeds to the second step, at which the Commissioner considers the medical severity of the claimant's impairments. 20 C.F.R. § 404.1520(a)(4)(ii). A severe impairment is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant suffers from any severe impairment, the Commissioner at step three must decide if the impairment meets or equals a listed impairment; listed impairments are presumed severe enough to render an individual disabled, and the criteria for each listing are found in Appendix 1 to Part 404, Subpart P of SSA regulations. 20 C.F.R. §§ 404.1520(a)(4)(iii), (d).
If the claimant's impairments do not satisfy the criteria of a listed impairment at step three, the Commissioner must then determine the claimant's residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). A claimant's RFC represents “the most [he or she] can still do despite [his or her] limitations.” 20 C.F.R. § 404.1545(a)(1). After determining the claimant's RFC, the Commissioner proceeds to the fourth step to determine whether the claimant can perform his or her past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv),(e)-(f). If it is found that the claimant cannot perform his or her past relevant work, or does not have any past relevant work, the Commissioner proceeds to step five to consider the claimant's RFC, age, education, and work experience to determine whether he or she can make an adjustment to other work.
20 C.F.R. §§ 404.1520(a)(4)(v),(g). To support a finding that the claimant is disabled, there must be no other work existing in significant numbers in the national economy that the claimant, in light of his or her RFC and vocational factors, is capable of performing. 20 C.F.R. § 404.1560(c).
The claimant bears the burden of proof on the first four steps of this analysis. DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998). If the ALJ concludes at an early step of the analysis that the claimant is not disabled, he or she need not proceed with the remaining steps. Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000). If the fifth step is necessary, the burden shifts to the Commissioner to show that the claimant is capable of performing other work. DeChirico, 134 F.3d at 1180.
DISCUSSION
Plaintiff seeks to reverse the Commissioner's decision and have the matter remanded to the SSA solely for the calculation of benefits or, in the alternative, for further administrative proceedings. He contends that the ALJ improperly evaluated the medical evidence, and failed to follow the treating physician rule, when he assigned less than controlling weight to Dr. Goldstein's medical opinions and failed to provide “good reasons” under 20 C.F.R. § 404.1527(c)(2) for doing so. See ECF No. 17 (“Pl.'s Mem.”) at 19-21, 22-25. In addition, Plaintiff asserts that it was improper for the ALJ to have determined that Dr. Dinovitser's opinion contradicted Dr. Goldstein's opinions. Pl.'s Mem. at 21-22. The Commissioner seeks to have her final decision affirmed; she maintains that the ALJ's decision is based upon the application of correct legal standards and is supported by substantial evidence. ECF No. 19 (“Def.'s Mem.”) at 9-18.
As discussed below, the Court finds that the ALJ applied the correct legal standards and that his decision was supported by substantial evidence. Therefore, the Court respectfully recommends that Plaintiff's motion for judgment on the pleadings be denied, the Commissioner's motion be granted, and that judgment be entered in favor of the Commissioner.
I. The ALJ's Decision
ALJ Gonzalez applied the five-step sequential analysis described above and issued a decision finding that Plaintiff was not disabled from the alleged onset date of September 8, 2011 through the date last insured, December 31, 2016. AR 11-21. First, the ALJ found that Plaintiff had not engaged in substantial gainful activity during the period between September 8, 2011 and December 31, 2016. AR 14. Second, the ALJ determined that Plaintiff suffered from the following severe impairments: lumbar spine degenerative disc disease, sinusitis, right knee derangement, right epicondylitis, left elbow tendon repair, obesity, and vertigo. Id. Third, the ALJ concluded that Plaintiff did not have an impairment or any combination of impairments that met or medically equaled the severity of any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
The ALJ found that the Plaintiff had the non-severe impairment of GERD, but determined that there was no evidence that this impairment had more than a minimal effect on Plaintiff's ability to perform basic work activities. AR 14. Plaintiff does not contest this finding as part of his submissions in this appeal.
According to the ALJ, Plaintiff retained the RFC to perform “light work,” with the exceptions that Plaintiff could occasionally climb ramps, stairs, ladders, ropes, and scaffolds; could occasionally stoop, kneel, crouch, and crawl; and should avoid all exposure to dust, fumes, and noxious gases. AR 14-15. The ALJ determined Plaintiff's RFC by applying the two-step framework described in 20 C.F.R. § 404.1529, concluding first that “the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms.” AR 15. The ALJ then found, however, that “the claimant's statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record,” and proceeded to explain his reasoning for that conclusion. AR 15-19. The ALJ provided a summary of the evidence in the record, focusing especially on treatment Plaintiff received for his lumbar degenerative disc disease, orthopedic complaints of the elbows, right arm, and right knee, and sinusitis and vertigo. AR 16-17.
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b).
With respect to the medical records, the ALJ stated that he made his RFC determination “[a]fter careful consideration of the entire record,” citing specifically to treatment records from Dr. Goldstein (AR Exhibits 3F, 6F, 15F), Dr. Huish (AR Exhibit 7F), Crystal Run Healthcare (AR Exhibit 1F, 14F, 19F, 26F), Park West Radiology (AR Exhibit 18F), and ENT & Allergy Associates (AR Exhibit 2F, 8F). See AR 15-17. The ALJ also discussed the examination and findings of Dr. Dinovitser, the consultative examiner. AR 16-17.
In weighing opinion evidence, ALJ Gonzalez assigned some weight to the opinion of State agency medical consultant Dr. Koenig, who determined that Plaintiff could perform light work, occasionally climb ramps, stairs, ladders, ropes, and scaffolds, and occasionally stoop, kneel, crouch, and crawl. AR 18. The ALJ explained that he assigned some weight because the limitations specified by Dr. Koenig were “generally consistent with the medical evidence of record, including the mild imaging findings related to the claimant's lumbar spine and right knee, his normal gait, his decreased range of motion, and his decreased right lower extremity strength,” but that Plaintiff's sinusitis and vertigo supported a limitation of no exposure to dust, fumes, and noxious gases. Id.
The ALJ also gave some weight to the opinion of the consultative examiner, Dr. Dinovitser, who concluded that Plaintiff had no limitations in the use of his hands, seeing, hearing, speaking, pushing, and pulling; had mild limitations in bending, lifting, carrying, prolonged sitting, standing, walking, and with stairs and other climbing; and should avoid exposure to known respiratory irritants. AR 18. The ALJ opined that Dr. Dinovitser's assessment was “probative regarding the claimant's functioning,” but the examination findings of reduced right lower extremity strength support and reduced lumbar range of motion supported “greater limitations in the claimant's ability to perform postural activities.” AR 18-19.
In evaluating the medical opinions provided by Dr. Goldstein, Plaintiff's treating source, ALJ Gonzalez found that Dr. Goldstein's “opinions limiting the claimant to less than sedentary exertional work and finding him 100% impaired are poorly supported not only by the physical examinations and the consultative internal medicine examiner's opinion but by the claimant's activities of daily living.” AR 19. The ALJ added that Dr. Goldstein's response to the ALJ's request for clarification of his opinion included explanations that were “not documented in the contemporaneous treatment notes from the relevant period.” Id. While the ALJ recognized that Dr. Goldstein was a treating source for Plaintiff, he noted that Dr. Goldstein had only a “short treatment history” with Plaintiff, his opinions were inconsistent with others in the record, and “the limits set out by Dr. Goldstein are not consistent with the level of activity found throughout the record.” Id.
Finally, the ALJ gave “little weight” to the assessment of the FDNY Medical Board and its otolaryngologist, Dr. Alexiades, on the ground that this assessment “only relates to the claimant's sinus condition and does not provide a function by function analysis of the claimant's functional abilities.” Id. As the ALJ noted, the FDNY Medical Board's determination as to disability “was not made in consideration of the rules and regulations of the [SSA] disability program.” Id.
At the fourth step, the ALJ found that Plaintiff could not perform his past relevant work as a firefighter and fire captain, as these positions exceeded his current RFC. AR 20.
Although Plaintiff was a lieutenant-and not a captain (a higher rank)-in the FDNY at the time of his retirement, the job listing in the DOT that most closely resembled the work of an FDNY lieutenant was the title of “fire captain.” See AR 64.
At the fifth step, the ALJ noted that if Plaintiff had the RFC to perform the full range of light work through the date last insured, a finding of “not disabled” would be directed by Medical-Vocational Rule 202.14. Id. But the ALJ concluded that Plaintiff's “ability to perform all or substantially all of the requirements of this level of work was impeded by additional limitations.” Id. Thus, “[t]o determine the extent to which these limitations erode the unskilled light occupational base, through the date last insured, the [ALJ] asked the vocational expert whether jobs existed in the national economy for an individual with the claimant's age, education, work experience, and [RFC].” AR 20-21. The vocational expert determined and testified that Plaintiff could perform the light, unskilled jobs of (1) cashier II (850,000 jobs available nationally); (2) marker (300,000 jobs available nationally); (3) routing clerk (40,000 jobs available nationally); and (4) cafeteria attendant (65,000 jobs available nationally). AR 21.
Based on the vocational expert's testimony, the ALJ concluded that Plaintiff was capable of making a successful adjustment to other work that existed in significant numbers in the national economy, and determined that a finding of “not disabled” was appropriate. Id. For all of these reasons, the ALJ concluded that Plaintiff was not disabled from the alleged onset date, September 8, 2011, through the date last insured, December 31, 2016. Id.
II. The ALJ's Evaluation of the Medical Evidence
Plaintiff's principal arguments for overturning the ALJ's decision are that the ALJ erred in his evaluation of Dr. Goldstein's medical opinions, failed to follow the treating physician rule, improperly evaluated the opinion of Dr. Dinovitser, and did not give “good reasons” for disregarding Dr. Goldstein's opinions. Pl.'s Mem. at 19-25. This Court disagrees, and concludes that the ALJ applied the correct legal standards in evaluating Plaintiff's claims.
a. Legal Standard for Application of the Treating Physician Rule
As a general matter, an ALJ is directed to consider “every medical opinion” in the record, regardless of its source. 20 C.F.R. § 404.1527(c). Yet not every medical opinion is assigned the same weight. Under SSA regulations, the opinions of a treating source as to the nature and severity of a claimant's impairments are generally, but not always, entitled to “more weight” relative to those from other treatment providers. See 20 C.F.R. § 404.1527(c)(2); Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 1995). Such opinions are given controlling weight if they are “well-supported by medically acceptable clinical and laboratory diagnostic techniques and [are] not inconsistent with the other substantial evidence” in the record. 20 C.F.R. § 404.1527(c)(2); Rugless v. Comm'r of Soc. Sec., 548 Fed.Appx. 698, 700 (2d Cir. 2013) (summary order). Conversely, opinions from treating sources “need not be given controlling weight where they are contradicted by other substantial evidence in the record.” Veino, 312 F.3d at 588; Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (a treating source opinion is not afforded controlling weight if it is “not consistent with other substantial evidence in the record, such as the opinions of other medical experts.”).
Citations to SSA regulations in this section are to the version of the “treating source rule” applicable to DIB claims filed before March 27, 2017. Plaintiff filed for DIB on November 17, 2016; accordingly, this version of the treating source rule is the applicable standard for this matter.
In the event that a treating source's opinion is not given controlling weight, the ALJ must still consider various factors to determine the appropriate amount of deference to assign to that opinion. These factors include: (i) the length of the treatment relationship and the frequency of examination; (ii) the nature and extent of the treatment relationship; (iii) the extent to which the medical source provides relevant evidence to support an opinion; (iv) the extent to which the opinion is consistent with the record as a whole; (v) whether the opinion is given by a specialist; and (vi) other factors which may be brought to the attention of the ALJ. 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii),(c)(3)-(c)(6); see Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008). The ALJ need not provide a “slavish recitation of each and every factor where the ALJ's reasoning and adherence to the regulation are clear.” Atwater v. Astrue, 512 Fed.Appx. 67, 70 (2d Cir. 2013) (summary order); see also Martinez-Paulino v. Astrue, No. 11-cv-5485 (RPP), 2012 WL 3564140, at *16 (S.D.N.Y. Aug. 20, 2012) (“It is not necessary that the ALJ recite each factor explicitly, only that the decision reflects application of the substance of the rule.”) (citing Halloran, 362 F.3d at 32). Nonetheless, the Commissioner must “always give good reasons in [his or her] notice of determination or decision for the weight [he or she] give[s] [a claimant]'s treating source's opinion,” 20 C.F.R. § 404.1527(c)(2), and must “comprehensively set forth reasons for the weight” ultimately assigned to the treating source, Halloran, 362 F.3d at 33.
“Failure to provide ‘good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). Certain findings, however, such as whether a claimant is disabled and cannot work, are reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(1).
b. The ALJ's Application of the Treating Physician Rule
ALJ Gonzalez appropriately explained why he did not give controlling weight to the medical opinions provided by Dr. Goldstein. See AR 19. As an initial matter, the ALJ clearly considered Dr. Goldstein's opinions and treatment records-the ALJ decision indicated that he reviewed “the entire record,” and cited extensively and in detail to Dr. Goldstein's treatment records as part of the RFC analysis. AR 14-16. The ALJ concluded, however, that Dr. Goldstein's opinions were not consistent with Plaintiff's clinical records, his activities of daily living, and other opinions in the record. See AR 19. Dr. Goldstein's opinions, which deemed Plaintiff “totally disabled” and restricted him to fewer than two hours standing, walking, or sitting per work day, are in contrast to Plaintiff's own testimony about his ability to perform household chores, travel by airplane, and ambulate to his own medical appointments, and numerous medical records about Plaintiff's physical activities during the relevant period. The ALJ also contrasted Dr. Goldstein's opinions with those of Dr. Dinovitser and Dr. Koenig. AR 19. Dr. Dinovitser determined that Plaintiff only had mild limitations with lifting, carrying, prolonged sitting, walking, and climbing, see AR 573; Dr. Koenig similarly found that Plaintiff could frequently lift and carry 10 pounds, could stand and sit up to six hours in an eight-hour workday, could perform unlimited pushing and pulling, and could occasionally climb, stoop, kneel, crouch, and crawl, see AR 89-90. Given that a treating physician's opinion is not afforded controlling weight when that opinion is not consistent with other substantial evidence in the record, the ALJ's decision not to assign controlling weight to Dr. Goldstein was not erroneous. See Halloran, 362 F.3d at 32; Veino, 312 F.3d at 588.
The ALJ also properly considered other factors under 20 C.F.R. § 404.1527(c) to determine the appropriate level of deference to accord to Dr. Goldstein's opinions. See AR 19. The ALJ noted the fragmented nature of Plaintiff's treatment relationship with Dr. Goldstein, given the long gap between Plaintiff's appointments in 2011-2012 and his later visits prior to the date last insured in 2016. Id. As a result of the lengthy interruption in treatment, Dr. Goldstein was not nearly as well suited as many treating sources to provide a meaningful longitudinal assessment of Plaintiff's progress over time. While Dr. Goldstein offered broad conclusions about Plaintiff's purported disability based on his condition over a period of more than five years between 2011 and 2016, the reality is that Dr. Goldstein only treated Plaintiff briefly at the beginning of that period and briefly at the end of that period before the date last insured. See AR 557-567, 578-606, 743-89. There is substantial evidence in the medical records from the intervening years-when Plaintiff was not being seen by Dr. Goldstein-that he was engaged in considerably more activity than Dr. Goldstein's opinions suggested would have been possible. See Section III, infra; AR 365, 370, 454, 817 (describing various physical activities in which Plaintiff was engaged in 2013, 2014, and 2015); see Reynolds v. Colvin, 570 Fed.Appx. 45, 48 (2d Cir. 2014) (ALJ properly accorded little weight to treating sources where “record medical evidence contradicted or failed to support their retrospective opinions”). The ALJ gave Dr. Goldstein an opportunity to further explain and justify his medical opinions by presenting a series of questions to him after the hearing. See 20 C.F.R. § 404.1527(c)(3) (“The better an explanation a source provides for a medical opinion, the more weight we will give that medical opinion.”). But ALJ Gonzalez appropriately determined that Dr. Goldstein's explanations raised further doubts because those explanations were not consistent with Dr. Goldstein's own contemporaneous treatment notes from the relevant period. AR 19. Thus, even when Dr.
Goldstein was given the opportunity to “present[] relevant evidence to support [his] opinion,” 20 C.F.R. § 404.1527(c)(3), he was unable to do so. When taken together, the ALJ provided a detailed explanation of why he determined that Dr. Goldstein's opinions were not entitled to controlling weight, and sufficiently addressed the required factors for assessing those opinions.
Moreover, in his June 27, 2018 opinion, Dr. Goldstein diagnosed Plaintiff with bilateral primary osteoarthritis of both hips, and concluded that Plaintiff had a 100 percent impairment due to both his lumbar spine condition and his bilateral hip condition. AR 694. The first time Plaintiff reported hip pain to Dr. Goldstein was at an examination conducted the day before Dr. Goldstein authored his opinion, on June 26, 2018, where Plaintiff complained of “increasing pain and limitation in both hips.” AR 693. Dr. Goldstein observed that Plaintiff was ambulating with pain in both hips, and an x-ray showed moderate osteoarthritis in both hips. AR 693-94. Plaintiff did not complain of, and Dr. Goldstein did not observe, a hip impairment until a year and a half after the date last insured; that impairment cannot be a basis for Plaintiff's DIB application, and provides an independent ground for assigning less weight to Dr. Goldstein's opinion. See Flanigan v. Colvin, 21 F.Supp.3d 285, 303 (S.D.N.Y. 2014) (ALJ properly did not give weight to opinion that only referenced symptoms and limitations occurring during period outside the date last insured); Behling v. Comm'r of Soc. Sec., 369 Fed.Appx. 292, 294 (2d Cir. 2010) (summary order) (“[A]ppellant was required to demonstrate that she was disabled as of the date on which she was last insured. Any new impairments are not relevant to our disposition of appellant's present appeal.”) (citations omitted).
Plaintiff also asserts that contrary to the conclusions of the ALJ, the medical opinion of the consultative examiner, Dr. Dinovitser, did not in fact contradict Dr. Goldstein's opinions or support the RFC of light work with exceptions. Pl.'s Mem. at 21-22. In particular, Plaintiff asserts that when Dr. Dinovitser described Plaintiff's limitations as “mild,” he “provided no useful assessment of the degree to which Mr. Wasserman could perform these activities and described his abilities in impermissibly vague terms.” Id. at 22. While the Second Circuit has noted that “the opinions of consulting physicians . . . generally have less value than the opinions of treating physicians,” Tankisi v. Comm'r of Soc. Sec., 521 Fed.Appx. 29, 34 (2d Cir. 2013) (summary order), the opinions of a consulting source “may constitute substantial evidence if they are consistent with the record as a whole,” Smith v. Colvin, 17 F.Supp.3d 260, 268 (W.D.N.Y. 2014) (quotation marks omitted), and can even “override treating physicians where the nontreating source's opinion is supported by evidence in the record,” Williams v. Colvin, No. 15-cv-6719 (KMK) (PED), 2016 WL 11270671, at *11 (S.D.N.Y. Dec. 14, 2016) (citing Schisler v. Sullivan, 3 F.3d 563, 566-68 (2d Cir. 1993)), adopted sub nom. Williams v. Comm'r of Soc. Sec., 2017 WL 4326119 (S.D.N.Y. Sept. 28, 2017). In addition, when considering the weight given to a medical opinion, ALJs may consider “the amount of understanding of our disability programs and their evidentiary requirements that a medical source has, regardless of the source of that understanding.” 20 C.F.R. §§ 404.1527(c)(6).
Here, the ALJ accorded some weight to Dr. Dinovitser's determination that Plaintiff had mild limitations in bending, lifting, carrying, prolonged sitting, standing, walking, and with stairs and other climbing. AR 18. The ALJ noted, however, that “[t]he examination findings of reduced right lower extremity strength and reduced lumbar range of motion support greater limitations in claimant's ability to perform postural activities.” AR 18-19. In other words, the ALJ did not simply accept Dr. Dinovitser's assessment uncritically-ultimately, he assessed limitations for Plaintiff that were, in part, greater than those recommended by Dr. Dinovitser. But it is still the case-as ALJ Gonzalez found-that Dr. Dinovitser's conclusions contradict those of Dr. Goldstein. Dr. Goldstein found Plaintiff to be 100 percent impaired, and incapable of doing even sedentary work. Dr. Dinovitser, on the other hand, observed that Plaintiff's gait was normal, and that he used no assistive device and needed no assistance changing for the exam. AR 571. Dr. Dinovitser additionally reported that although Plaintiff's range of motion in his lumbar spine was affected, he had full range of motion in his shoulders, elbows, forearms, wrists, hips, and ankles. AR 572. His conclusions about Plaintiff's limitations differed significantly from Dr. Goldstein's, and were informed by his own findings upon physical examination, including range of motion, strength, and reflex testing. It was not error for the ALJ to conclude that Dr. Goldstein's conclusions were inconsistent with those of Dr. Dinovitser.
Finally, Plaintiff contends that the ALJ did not acknowledge Dr. Goldstein's medical specialization as an orthopedic surgeon, in accordance with 20 C.F.R. § 404.1527(c)(5). Pl.'s Mem. at 21. Though the ALJ did not specifically refer to Dr. Goldstein as a surgeon, he did describe Dr. Goldstein as Plaintiff's “treating orthopedist,” AR 15, which is an implicit recognition of his specialization in the musculoskeletal system. See DeJesus v. Colvin, No. 12-cv-7354, 2014 WL 667389, at *17 (S.D.N.Y. Feb. 18, 2014) (“Additionally, by referring to Dr. Salkin as a psychiatrist, the ALJ implicitly recognized that Dr. Salkin qualifies as a specialist.”). The fact that ALJ Gonzalez did not discuss Dr. Goldstein's specialty in greater detail is not grounds for remand in light of the other analysis provided in the ALJ decision. The purpose of the “good reasons” standard is to assist courts in reviewing the Commissioner's decision, and “to let claimants understand the disposition of their cases, even-and perhaps especially-when those dispositions are unfavorable.” Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999); Halloran, 362 F.3d at 33. Here, the ALJ thoroughly outlined his reasons for assigning less than controlling weight to Dr. Goldstein's opinion, making a particularized listing of each factor unnecessary. See Atwater, 512 Fed.Appx. at 70 (ALJs need not provide a “slavish recitation of each and every factor where the ALJ's reasoning and adherence to the regulation are clear.”). On balance, the ALJ's application of the treating physician rule is not a departure from correct legal standards, and therefore does not warrant remand.
ALJ Gonzalez also specifically referenced Dr. Goldstein's responses to his posthearing questions, and as part of those responses, Dr. Goldstein noted that he had been in “orthopedic surgery practice for 49 years.” AR 749; see AR 19 (citing Ex. 25F, Dr. Goldstein's responses)
III. Substantial Evidence Supporting the ALJ's RFC Determination
There also is substantial evidence to support the ALJ's RFC determination that Plaintiff could perform light work subject to certain additional limitations. AR 14-19. The record supports the ALJ's findings that several of Plaintiff's impairments have been successfully managed with surgery, physical therapy, and pain medication and thus would not impede Plaintiff's ability to perform light work. See AR 18. Indeed, while Plaintiff's submissions in this appeal make passing references to impairments other than those of his lumbar spine degenerative disc disease, his arguments focus entirely on the lumbar spine and do not suggest any error in the ALJ's assessment of the impact of Plaintiff's other severe impairments on the RFC determination.
When Plaintiff was diagnosed with acute lateral epicondylitis after presenting at Crystal Run with right elbow pain in March 2013, Dr. Patel advised Plaintiff that his symptoms could be managed with “relatively non-specific treatment,” such as non-narcotic pain medication, ice, and heat. AR 377-78. Plaintiff's physical therapist assessed Plaintiff's rehabilitation potential as “good,” and set goals to restore his strength and reduce his pain to a 2/10 within three weeks. AR 375. Even after Plaintiff re-injured his right arm in September 2013, Dr. Kaw noted that Plaintiff's range of motion and strength were unaffected, and advised that Plaintiff ice the area and avoid heavy lifting for the next few weeks. AR 372-73. After September 2013, Plaintiff did not have further complaints about his right elbow, and Dr. Dinovitser found that Plaintiff had full range of motion in his elbows and forearms. AR 572.
Plaintiff also was able to successfully manage his left elbow pain with surgery and physical therapy. He responded well to left triceps repair surgery in September 2013, and reported feeling little pain in his post-operation follow-up appointments. See AR 355-60. Plaintiff attended physical therapy for his left elbow starting in December 2013, and reported increasing levels of strength and continuous improvement in his pain. See AR 392-484. By the time he was discharged from physical therapy in April 2014, Plaintiff reported that he had been “exercising at home,” and that his elbow was feeling better. AR 379-81.
Similarly, the right knee pain Plaintiff experienced in September 2015 was relatively short-lived and mild, apparently brought on by “rigorous activities.” AR 817; see AR 733-34; 818-19. Plaintiff self-reported that his pain was a two out of 10 on the pain scale, and upon examination, his right knee displayed no swelling or tenderness. AR 818-19. X-rays of the knee were “unremarkable,” and an MRI showed that Plaintiff did not have a meniscal or ligamentous tear. AR 733-34, 819. By November 2015, Plaintiff had full range of motion in his knee. AR 815.
Plaintiff's sinus and vertigo issues were continuously managed with conservative treatment. After Plaintiff underwent endoscopic sinus surgery in March 2010, he used sinus rinses and topical nasal steroids to manage his chronic sinus issues, and Dr. Shohet noted that Plaintiff's condition was “well controlled.” AR 526. Plaintiff was also proactive in seeking care for his seasonal allergies, which he believed worsened his symptoms, and spoke with his providers about allergy shots and mold immunotherapy. AR 671-73, 808-10. Potential limitations stemming from Plaintiff's sinus and vertigo issues were accounted for in the RFC by providing that Plaintiff “should avoid all exposure to dust, fumes, and noxious gases.” AR 15.
Even with respect to Plaintiff's lumbar spine degenerative disc disease, Plaintiff also sought conservative treatments, and his back pain remained largely stable over the period at issue in Plaintiff's application. Indeed, sometimes Plaintiff did not even employ the conservative treatments that Dr. Goldstein recommended-for example, Plaintiff did not attend physical therapy in 2012, even though Dr. Goldstein recommended it on February 23 and July 18, 2012. See AR 716-17. Similarly, Dr. Goldstein noted at both these appointments that Plaintiff was not currently taking pain medication. Id. Even more importantly, however, after Plaintiff's July 18, 2012 appointment with Dr. Goldstein, Plaintiff apparently did not seek treatment for lower back pain for more than four years, before returning to see Dr. Goldstein on September 20, 2016. Plaintiff told Dr. Goldstein at that visit that this break was due to the fact that he had moved upstate and could not get back to Dr. Goldstein's office. AR 562. But this is statement is difficult to reconcile with Plaintiff's complaints at that appointment about “constant” pain and difficult ambulation, Id., particularly because the record reveals that Plaintiff diligently sought care for a number of other issues between July 2012 and September 2016 with providers closer to his home. When viewed in light of the overall record, the long hiatus in Plaintiff's lower back treatment casts doubt on Plaintiff's claimed level of impairment.
Plaintiff did mention at an appointment with Dr. Inzerillo in September 2015 that he was experiencing persistent radicular pain starting in his groin and radiating down his leg. AR 815. Dr. Inzerillo noted that although Plaintiff had come to Crystal Run complaining of knee pain, his “symptoms today are more consistent with radiculopathy” and “sciatica-type symptoms,” and recommended that Plaintiff begin physical therapy for lower back and sciatica. AR 816. Yet there is no indication in the record that Plaintiff pursued that course of therapy at Crystal Run, or followed up on Dr. Inzerillo's recommendation that he consult a spine surgeon. Id.
Nevertheless, as the ALJ recognized, Plaintiff does have certain limitations. Plaintiff's objective treatment records, and his own testimony, show that he experiences moderate to severe back pain when standing or sitting for prolonged periods, or when bending, squatting, and going up or down stairs. See, e.g., AR 38-39, 41, 570-72, 607, 690, 693. Moreover, Plaintiff is correct to point out that the ALJ erred when he categorically stated that “the record shows a lack of reduced joint motion, muscle spasm, sensory deficit, and motor disruption that may result from or be associated with the symptom of pain and testimony regarding functional limitation.” Pl.'s Mem. at 20 (citing AR 18). There certainly is some evidence in the record of reduced joint motion or muscle spasm. See, e.g., AR 562 (“[e]xamination of the lumbar spine reveals pain and spasm bilaterally”); AR 717 (“patient continues to have pain with spasms bilaterally in the lumbar spine . . . [p]atient is only able to flex to 60 [degrees] without pain”). But this misstatement by ALJ Gonzalez is not sufficient to warrant remand, because there was still substantial evidence in the record to support the RFC determination, particularly in light of the range of activities Plaintiff was able to engage in during the relevant period.
Both Plaintiff's treatment records and his hearing testimony reflect that he was able to participate in activities of daily living and take extended trips. The record reflects that Plaintiff occasionally cooks, does grocery shopping, and performs daily child care, including driving his daughter to softball practice; he mows his lawn; he travels by train to medical appointments in New York City; and he traveled by car to a vacation in New Jersey just a few weeks before his hearing (though he testified that due to his back pain, he was only able to stay for four days). AR 44-45, 55-57, 571. Plaintiff also testified that he traveled by airplane during the period at issue, including to California for a five or six day trip in 2016, and to Korea in 2015. AR 43-45. All of these activities-some of which involve sitting and standing for extended periods, and other levels of exertion-when combined with the findings of Dr. Dinovitser and Dr. Koenig about Plaintiff's capabilities, are consistent with the RFC determination that Plaintiff can perform light work subject to certain additional limitations.
The record also includes various indications that Plaintiff was engaged in meaningful physical activity during the relevant time period. As the ALJ observed, “[t]hough the claimant testified to significant exertional limitations, there is palpable evidence in the file that demonstra[tes] that the claimant was not a[s] limited as he alleged.” AR 17. Among other things, the ALJ cited treatment records from Crystal Run, one of which noted that Plaintiff injured his left elbow while working out at the gym on a bike (AR 370, dated September 23, 2013), and another of which stated, “patient avidly done biking and running, the next day after rigorous activities he will feel pain” (AR 817, dated Sept. 21, 2015). AR 17-18. In physical therapy, Plaintiff's exercise program included strengthening exercises involving five-pound weights, standing shoulder extensions, bicep curls, counter push-ups, and a home exercise program. See, e.g., AR 464-65. A Crystal Run provider even cleared Plaintiff on June 2, 2014 to begin “aggressive strengthening, bench press, [and] pushups.” AR 369. While Plaintiff testified “it was tough to exercise” and he “couldn't do too much” since his back injury in 2010, AR 41, he also testified that during the relevant period he would ride four to five miles on his bike about once a week, for about 10-15 minutes, to lose weight, AR 40, see also 48. Plaintiff denied that he had ever joined a gym, and said that running in a race was “impossible.” AR 42, 52. When questioned about his supposed participation in a triathlon, Plaintiff adamantly denied it, saying, “not in a million years was I training for a [t]riathlon.” AR 48-49.
“It is the function of the [Commissioner], not [the reviewing court], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant.” Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). An ALJ “is not required to accept the claimant's subjective complaints without question; he may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). “Where an ALJ rejects witness testimony as not credible,” however, “the basis for the finding must be set forth with sufficient specificity to permit intelligible plenary review of the record.” Ortiz v. Comm'r of Soc. Sec., 309 F.Supp.3d 189, 200 (S.D.N.Y. 2018) (quotation marks omitted). If an ALJ does give specific reasons for finding the claimant to be not credible, this determination “is generally entitled to deference on appeal.” Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013). Thus, “[i]f the [Commissioner's] findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount a claimant's subjective complaints.” Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (citations omitted); Ortiz, 309 F.Supp.3d at 200.
Here, the ALJ concluded that Plaintiff's “testimony on this point of his exercise regimen was vague and not convincing ....” AR 19. As part of his discounting of Dr. Goldstein's medical opinions, ALJ Gonzalez explained that Dr. Goldstein's restrictive opinion was “poorly supported not only by the physical examinations and the consultative internal medicine examiner's opinion, but by the claimant's activities of daily living,” which “appear to show that the claimant was significantly more active, engaged in training that appeared to be for a triathlon.” Id. The Second Circuit has held that a claimant's activities of daily living may constitute a basis for finding a claimant's testimony to be lacking in credibility. Poupore v. Astrue, 566 F.3d 303, 320 (2d Cir. 2009) (finding plaintiff's testimony about his limitations to be “not fully credible,” because he was able to care for his one year-old child, sometimes vacuumed and washed dishes, and occasionally drove); see also Ortiz, 309 F.Supp.3d at 201 (plaintiff's activities of daily living, including grocery shopping, occasional cooking, and cleaning, undermined his assertion that his pain prevented him from doing even sedentary work). Regardless of whether Plaintiff was or was not actually training for a triathlon, there is ample evidence in the record to show that Plaintiff was able to engage in various activities-including “avidly biking and running,” intensive physical therapy, household chores, child care, and train and air travel-that provide substantial evidence in support of the ALJ's RFC determination, and the ALJ's assessment that Plaintiff's testimony regarding the nature, intensity, persistence, and limiting effects of his symptoms were not consistent with the evidence in the record. AR 40-41, 44-45, 48, 56-57, 571.
An RFC of “light work” may involve “a good deal of walking or standing,” but this is consistent with the opinions of Dr. Dinovitser and Dr. Koenig, and the scope of activities that Plaintiff was able to engage in during the relevant time period. See 20 C.F.R. § 404.1567(b). Additionally, the exceptions the ALJ imposed on Plaintiff's RFC address his other exertional limitations, in that he can only occasionally climb ramps, stairs, ladders, ropes, and scaffolds, and occasionally stoop, kneel, crouch, and crawl. AR 14-15. The ALJ also addressed Plaintiff's chronic sinus issues, which are exacerbated by exposure to smoke and chemicals, by limiting his exposure to dust, fumes, and noxious gases. AR 15, see 519, 528.
In sum, the ALJ's RFC determination that Plaintiff could perform light work, subject to additional limitations, was supported by substantial evidence.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Plaintiff's motion for judgment on the pleadings (ECF No. 16) be DENIED, the Commissioner's motion for judgment on the pleadings (ECF No. 18) be GRANTED, and that judgment be entered in favor of the Commissioner.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Vincent Briccetti, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Briccetti, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).