Opinion
21-cv-06464 (PGG) (SDA)
08-02-2022
Susan Zukergood, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security,[1] Defendant.
HONORABLE PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Susan Zukergood (“Zukergood” or “Plaintiff”) brings this action pursuant to Section 205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the “Commissioner”) that denied her application for Disability Insurance Benefits (“DIB”). (Compl., ECF No. 1.) Presently before the Court are the parties' cross-motions, pursuant to Federal Rule of Civil Procedure 12(c), for judgment on the pleadings. (Pl.'s Not. of Mot., ECF No. 14; Comm'r Not. of Mot., ECF No. 25.) For the reasons set forth below, I respectfully recommend that Plaintiff's motion be GRANTED, the Commissioner's cross-motion be DENIED, and that this action be remanded for further proceedings.
BACKGROUND
I. Procedural Background
Zukergood filed an application for DIB on July 18, 2017, with an alleged disability onset date of May 4, 2017. (Administrative R., ECF No. 10 (“R.”), 165.) The Social Security Administration (“SSA”) initially denied her application on October 20, 2017 (R. 95), and Zukergood requested a hearing before an Administrative Law Judge (“ALJ”) on December 5, 2017. (R. 101.) A hearing was held on May 8, 2019 before ALJ Mark Solomon. (R. 28-49.) Zukergood was represented at the hearing by attorney Amy Shenstone. (Id.) In a decision dated June 7, 2019, ALJ Solomon found Zukergood not disabled. (R. 7.) Zukergood requested review of the ALJ decision from the Appeals Council. (R. 162-65.) Her request for review was denied on October 21, 2019, making ALJ Solomon's decision the Commissioner's final decision. (R. 1-6.) Plaintiff then commenced a civil action in the United States District Court for the Southern District of New York. (R. 689.) Upon stipulation and agreement between the parties, that action was remanded back to the Commissioner for further administrative proceedings on June 25, 2020. (R. 687.) On August 17, 2020, the Appeals Council vacated the prior hearing decision and remanded the case to ALJ Solomon. (R. 692-94.)
Zukergood had her second hearing on February 3, 2021 before ALJ Solomon. (R. 639-59.) Zukergood was represented by attorney J. Antonwicz. (R. 639.) On April 5, 2021, ALJ Solomon again found Zukergood not disabled. (R. 609-33.) The ALJ's decision became final when Zukergood declined to file exceptions and the Appeals Council otherwise found no reason to assume jurisdiction. (See Comm'r Mem., ECF No. 25, at 1.) This action followed.
II. Non-Medical Evidence
Born on September 10, 1956, Zukergood was sixty years old on the alleged disability onset date. (R. 75.) She completed college and one year of graduate school. (R. 33.) Zukergood lives alone and has stated she can take care of her own personal needs on a daily basis. (R. 650, 709.)
From November 2000 through May 2017, Zukergood worked as an executive assistant or administrative assistant for various employers. (R. 218.) From June 2018 to September 2018 and from April 2019 to July 2019, she worked as a receptionist and administrative assistant at Sloan
Kettering Cancer Center (“Sloan”). (R. 816.) The jobs with Sloan were through a temporary employment agency. (R. 702-03.)
III. Medical Evidence Before the ALJ
Because the substance of Plaintiff's challenge to the ALJ's decision does not relate to her mental impairments, the Court focuses on the medical evidence regarding Plaintiff's physical impairments.
A. Medical Evidence Prior To May 4, 2017 Alleged Onset Date
On July 10, 2015, Zukergood visited Dr. Gail Schattner,5 a pulmonary doctor at NYU Langone Medical Center (“NYUMC”), for a pulmonary evaluation with a chief complaint of shortness of breath. (R. 303, 306.)6 Zukergood, a lifelong smoker, had been hospitalized for one week the previous month following a severe episode of asthmatic bronchitis and was discharged on June 16, 2015 with prescriptions for Spirivaand Proair HFA (Albuterol). (R. 303, 306; see also R. 396-420 (hospital records).) Dr. Schattner noted that Zukergood significantly was improved with essentially normal airway function on the medication Spiriva and that she had quit smoking. (R. 306.) Dr. Schattner further noted that an exercise and weight program was essential and that Zukergood was scheduled to be seen in the NYU medical weight loss program. (Id.) Dr. Schattner diagnosed Zukergood with dyspnea,hypoxemiaand sleep-disordered breathing. (R. 306.) On January 20, 2016, Zukergood returned to Dr. Schattner, complaining of a cough. (R. 307.) Dr. Schattner noted that Zukergood had stopped smoking, that she had lost 25 pounds, that she had some shortness of breath and that she had been experiencing some intermittent heartburn. (R. 307.) Dr. Schattner diagnosed Zukergood with a cough and gastroesophageal reflux disease. (R. 309.)
Spiriva (a brand name of tiotropium) is a bronchodilator used to prevent wheezing, shortness of breath, coughing, and chest tightness in patients with chronic obstructive pulmonary disease (“COPD”), a group of diseases that affect the lungs and airways such as chronic bronchitis (swelling of the air passages that lead to the lungs) and emphysema (damage to air sacs in the lungs). See Tiotropium Oral Inhalation, https://medlineplus.gov/druginfo/meds/a604018.html (last visited July 28, 2022). Spiriva works by relaxing and opening the air passages to the lungs to make breathing easier. See id.
Proair HFA (Albuterol) is another bronchodilator used to prevent and treat difficulty breathing, wheezing, shortness of breath, coughing, and chest tightness caused by lung diseases such as asthma and COPD. See Albuterol Oral Inhalation, https://medlineplus.gov/druginfo/meds/a682145.html (last visited July 28, 2022).
“Dyspnea is breathlessness or shortness of breath, or labored or difficult respiration.” Wilson v. Colvin, 107 F.Supp.3d 387, 391 n.6 (S.D.N.Y. 2015) (internal quotation marks and citation omitted).
Hypoxemia is an “oxygen deficiency.” Rosario v. Kijakazi, No. 20-CV-05490 (JPC) (BCM), 2022 WL 875925, at *4 (S.D.N.Y. Mar. 15, 2022).
On July 20, 2016, Zukergood had an initial visit with Dr. Linh Dinh, an internist at NYUMC. (R. 574.) Among his diagnoses, Dr. Dinh found hyperlipidemia and COPD. (R. 578.) Zukergood saw Dr. Dinh again on August 19, 2016 for an annual comprehensive visit. (R. 579.) On August 30, 2016, Zukergood returned to Dr. Schattner, again complaining of shortness of breath. (R. 310.) Dr. Schattner diagnosed Zukergood with dyspnea and COPD. (R. 312.)
“Hyperlipidemia is high cholesterol.” Byrd v. Kijakazi, No. 20-CV-04464 (JPO) (SLC), 2021 WL 5828021, at *4 n.10 (S.D.N.Y. Nov. 12, 2021) (internal quotation marks and citation omitted).
B. Medical Evidence After May 4, 2017 Alleged Onset Date
1. NYUMC
On July 25, 2017, Zukergood had a follow-up visit with Dr. Dinh who diagnosed her with essential hypertension and hyperlipidemia. (R. 597-600.) Dr. Dinh noted that Zukergood had been fired from her job on May 4, 2017 due to “poor work performance.” (R. 597.) Her pulmonary evaluation revealed that Zukergood's effort was normal, there was no respiratory distress, and she did not have a wheeze. (R. 599.) Zukergood reported that she was swimming four times a week. (R. 597.)
On September 26, 2017, Zukergood saw orthopedic surgeon Dr. Pereira for an initial evaluation on both her shoulders. (R. 386-89.) Zukergood reported experiencing intermittent shoulder pain for about nine years after falling on a sidewalk and complained of pain with pulling, lifting, reaching grooming and dressing. (R. 386.) On examination, Dr. Pereira noted limited and painful range of motion in the right shoulder and diminished strength at 4/5 and greater range of motion, but some discomfort in the left shoulder. (R. 388.) Dr. Pereira assessed bilateral shoulder impairment, right worse than left and ordered an MRI of the right shoulder and physical therapy. (Id.) An October 8, 2017 MRI Zukergood's right shoulder revealed a rotator cuff tear with atrophy and severe arthritis. (R. 390, 392-94, 892-93.) Dr. Pereira recommended physical therapy and that Zukergood follow-up in six weeks.
The record does not reflect any further treatment with Dr. Pereira.
On January 9, 2018, Zukergood returned to Dr. Dinh for a routine examination. (R. 46566.) Dr. Dinh noted that Zukergood was negative for shortness of breath; her pulmonary/chest effort and breath sounds were normal; and she had no respiratory distress, wheezes or rales. (R. 465-66.) On musculoskeletal examination, Dr. Dinh noted that Zukergood had normal range of motion. (R. 466.)
2. August 31, 2017 Consultative Internal Medicine Examination - Dr. Ram Ravi, M.D.
On August 31, 2017, Dr. Ram Ravi performed an internal medicine examination of Zukergood at the request of the SSA. (R. 568-71.) Zukergood reported she was asymptomatic from COPD that had been diagnosed in 2015. (R. 568.) She reported that she dressed daily, showered several times a week, shopped twice weekly, and cooked, cleaned and did laundry once weekly. (R. 569.) She stated that she spent her time watching television, listening to the radio and reading. (R. 569.) Zukergood's chest and lungs sounded clear, but had some limitations in flexion in her lumbar spine, hips, knees, ankles and shoulder. (R. 570.) Her gait, stance, and joints were normal, but she was only able to squat 15%. (R. 569-70.) Her strength was 5/5 with no muscle atrophy, and she had no sensory or reflux deficits. (R. 570.)
Dr. Ravi opined that Zukergood had no limitation of sitting or standing, but that she had moderate limitations bending, pushing, pulling, lifting, carrying and overhead activities and should avoid squatting and driving. (R. 571.) Dr. Ravi also opined that Zukergood should avoid smoke, dust and other respiratory irritants/triggers due to COPD, and that she was limited from work requiring fine auditory acuity due to bilateral hearing loss. (Id.)
3. October 19, 2017 State Agency Evaluation - Dr. R. Gauthier, M.D.
On October 19, 2017, Dr. Gauthier, a state agency medical consultant, completed a physical residual functional capacity assessment for Zukergood. (R. 84-85.) Dr. Gauthier found Zukergood had exertional limitations, but could occasionally lift and/or carry up to fifty pounds and could frequently lift and/or carry twenty-five pounds. (R. 84.) Dr. Gauthier also found Zukergood could stand and/or walk for about six hours and sit for about six hours in an eighthour workday, and had an unlimited ability to push and/or pull and had no postural limitations, manipulative limitations, visual limitations or communicative limitations. (R. 84-85.) In support of these limitation, Dr. Gauthier wrote “see 416” referring to his medical evaluation. (R. 85; see also R. 81.) In his medical evaluation assessment, Dr. Gauthier noted that Zukergood's COPD was stable and asymptomatic and that she used Spiriva and ProAir. (R. 81.) Dr. Gauthier further noted that she performed her activities of daily living, used public transportation and participated in a swim class. (Id.) In addition, Dr. Gauthier noted that Zukergood had an episode of hypoxia in 2015 related to a viral respiratory infection, but her subsequent follow-up indicated good oxygen levels on a 6-minute walking test and no evidence of significant ongoing obstruction on spirometry. (Id.) He further noted that Zukergood had no exacerbations of COPD since 2015. (Id.) Dr. Gauthier explained that he found Zukergood's allegation of “dyspnea at a couple blocks” inconsistent with this evidence, but given the COPD diagnosis and need for treatment, he reduced his RFC assessment to include the standing/walking and lifting/carrying limitations set forth above. (Id.)
4. January 4, 2019 Consultative Orthopedic Examination - Dr. Allen Meisel
On January 4, 2019, Dr. Allen Meisel performed a consultative orthopedic examination of Zukergood at the request of the SSA. (R. 438-48.) She had no orthopedic complaints. (R. 438.) Dr. Meisel noted that Zukergood's gait was normal and could walk on her heels and toes without difficulty and squat fully. (R. 439.) She was able to rise from a chair and get on and off the examination table without difficulty. (Id.) She had full range of motion in her extremities and spine and had a strength of 5/5 in her hands and extremities. (R. 439-40.) The rest of the physical examination also was normal. (Id.)
Dr. Meisel opined that, due to Zukergood's respiratory status, she should avoid activities that were mildly to moderately strenuous, and that she had marked limitations of heavy lifting and carrying, climbing ladders, scaffolds and being exposed to unprotected heights. (R. 440.) Dr. Meisel opined that Zukergood could not lift or carry more than 20 pounds, but could lift and carry up to 20 pounds continuously; she could sit, stand and/walk up to 8 hours without interruption; she could continuously use her hands for reaching, handling, fingering, feeling and pushing and/or pulling; she could continuously use her feet to operate foot controls; she did not indicate any limitations of postural activities (climbing, balancing, stooping, kneeling, crouching or crawling); she could never work around unprotected heights, moving mechanical parts or operate a motor vehicle; she could continuously tolerate humidity and wetness, dusts, odors, fumes and pulmonary irritants, extreme heat or cold; and she could tolerate moderate (officelevel) noise. (R. 443-48.)
5. New York Presbyterian Hospital
On January 2, 2020, after not seeing a primary care physician in two years, Zukergood visited Dr. Patrick Weill at New York Presbyterian Hospital for establishment of care. (R. 1339.) She stated that she had fallen about one month ago and fractured her shoulder and reinjured her shoulder two weeks earlier when she fell out of her bed.(Id.) Upon physical examination, Zukergood's lungs were clear to auscultation with no wheezes, crackles or rhonchi. (R. 1342.) Dr.
On November 17, 2019, Zukergood saw Dr. Sanjay Mohan at the Tisch Hospital emergency department where a CT-scan of the right shoulder revealed a shoulder fracture. (R. 950, 953, 1358.) Dr. Mohan gave home care instructions with a shoulder mobilizer and had recommended following up with a healthcare provider. (R. 953.)
Weill did not report any examination findings related to Zukergood's shoulder but planned for her to see an orthopedist. (Id.)
Upon follow-up with Dr. Weill on February 19, 2020, Zukergood reported that her shoulder pain was much better. (R. 1332.) Upon physical examination, her lungs were clear to auscultation bilaterally with no wheezes, crackles or rhonchi. (R. 1334.) Dr. Weill did not report any particular findings with respect to Zukergood's shoulder and noted only that pain was resolving according to Zukergood and that she followed with orthopedics. (Id. (“per pt is resolving”).) According to the supervising attendant, at this visit, Zukergood reported that she was about to start a new job. (R. 1335.)
When Zukergood next saw Dr. Weill on July 9, 2020 due to nausea and vomiting, her lungs were clear to auscultation bilaterally, with no wheezes, crackles or rhonchi. (R. 1328.) Dr. Weill noted that she was requesting refills of medications that “are not all on our list, including albuterol inhaler for asthma.” (Id.) Dr. Weill prescribed an Albuterol inhaler and referred to the pulmonary department. (R. 1329.) During this visit, Zukergood reported that her breathing had been stable. (R. 1330.)
On October 6, 2020, Zukergood visited Dr. David Berlin for her COPD. (R. 1322.) She reported dyspnea on exertion. (Id.) She stated that she could walk “blocks,” but had dyspnea with one flight of stairs and rare wheezes. (Id.) She further stated that she was on Spiriva and Albuterol, as needed. (Id.) Zukergood said that her COPD was affected by extremes of hot and cold and fumes. (Id.) Dr. Berlin noted that Zukergood had been admitted to the hospital in June 2020 for COPD. (See id.) Upon examination, Zukergood's lungs were clear to auscultation. (R. 1323.) Dr. Berlin assessed mild COPD and maintained Zukergood on Spiriva and Albuterol, as needed. (Id.)
On December 22, 2020, Zukergood visited Dr. Weill and reported feeling “well overall” but felt “like she [was] thirsty all of the time.” (R. 1307.) Upon her examination, her lungs were clear with no wheezes, crackles or rhonchi. (R. 1309.)
IV. The February 3, 2021 Administrative Hearing
On February 3, 2021, Plaintiff appeared with counsel for an administrative hearing before ALJ Solomon. (R. 639-59.)
A. Plaintiff's Testimony
Zukergood testified she no longer was working because her temporary job expired. (R. 644.) She further testified that her previous testimony from the first hearing was accurate, except her hearing had gotten worse, but she could hear with her hearing aids that she wore full-time. (R. 644-45.) At the previous hearing, Zukergood testified that, before working in the temporary job, she worked as an administrative assistant for NYU, but she was fired because her performance was not good due to the fact that she could not communicate and would stop midsentence because of the cognitive impairment and ADHD (R. 644); that it was a very stressful job because of problems with her supervisor (R. 38); that, after being fired, she received unemployment benefits (R. 37); and that she has poor hearing and wears hearing aids. (R. 36.) Plaintiff also previously testified that she had no other physical difficulties other than getting older, but she was able to take care of her personal needs. (R. 37, 40.)
In her second hearing, Zukergood testified that she had a history of COPD and that, when it “was very hot or cold[,] [she] had a hard time breathing and [her] arms and legs would tremor.”
(R. 646.) Zukergood further testified she could not walk far due to the condition, and after about a block, she would have to sit down or stand in place especially in certain weather. (Id.) Zukergood testified she had shortness of breath when standing for around five minutes. (R. 646-47.) She also testified that she had difficulty lifting and carrying and could carry a large soda bottle in each hand, but “that was about it.” (R. 647.) Although ALJ Solomon asked about an emergency room visit for the condition in 2021, Zukergood claimed not to remember because she had a “hard time remembering little things” and testified that “most of the time [she] [couldn't] remember what [she] just said” which started in May 2017. (R. 647-48.) Zukergood further testified that she used “a puffer” and took Spiriva every day. (R. 648.) However, she was able to perform the job as a receptionist for five months without any problems. (Id.)
By this question, the ALJ may have been inquiring about the June 2020 hospital admission referred to in Dr. Berlin's notes. (See R. 1322.)
Zukergood testified she used her inhaler once every two weeks because that was how often she got exacerbated. (R. 649-50.) She further testified that “too much physical activity” and the weather triggered the exacerbation. (R. 650.)
Zukergood testified that in November 2019 she broke her right shoulder and was hospitalized for five days. (R. 648.) Thereafter, she completed physical therapy, but at the time of the hearing was no longer receiving treatment. (R. 649.) Regarding residual effects, she testified that she cannot lift “too much” as a result. (Id.)
Zukergood testified she could take care of her personal needs, do her own shopping by taking multiple trips and do her own laundry. (R. 650.) She further testified that she was not aware of any side effects from her medications and was currently receiving mental health counselor treatment. (R. 651.)
B. Vocational Expert Testimony
Vocational Expert (“VE”) Christine Ditrinco also testified at the hearing. (R. 654-59.) The VE testified that, if the ALJ found Plaintiff could do medium work with the ability to sit for at least six hours, stand for at least six hours, walk up to an hour, lift or carry up to fifty pounds occasionally and twenty-five pounds frequently, occasionally climb ramps and stairs, and avoid concentrated exposure to respiratory irritants, Plaintiff could perform her past work. (R. 655.) The VE further testified that Plaintiff could perform the job at a sedentary level as well. (Id.)
Next, the ALJ asked the VE to assume a hypothetical individual of the Plaintiff's age, education and work experience with the above limitations as well as additional restrictions that “she can never understand and carry out all instructions necessary to perform SVPlevel 1 or 2 up to reasoning level 3,” but can respond appropriately to supervisors, maintain routine and personal contact with employees and general public, and maintain concentration and attention for routine and repetitive unskilled rote work. (R. 656.) The VE testified that, under this hypothetical, the individual could perform medium level work including laundry labor (SVP 2 or unskilled), dining room attendant (SVP 2) and cleaner II (SVP 1). (R. 656-57.) The VE further testified that the individual would still be able to perform these jobs if she had to avoid extreme of heat and cold. (R. 657.)
“‘SVP' stands for ‘specific vocational preparation,' and refers to the amount of time it takes an individual to learn to do a given job.... SVP uses a scale from 1 to 9 and the higher the SVP number the greater the skill required to do the job.” Urena-Perez v. Astrue, No. 06-CV-02589 (JGK) (MHD), 2009 WL 1726217, at *20 (S.D.N.Y. Jan. 6, 2009) (citations omitted), report and recommendation adopted as modified, 2009 WL 1726212 (S.D.N.Y. June 18, 2009).
The VE testified that Plaintiff could be off task at a rate of fourteen percent of the workday and miss one day per month before she would be unable to work. (Id.) The VE testified this information was based on her education, experience, training and observations, and was consistent with the DOT and Selected Characteristics of Occupations. (Id.) V.ALJ Solomon's Decision
Applying the Commissioner's five-step sequential evaluation, see infra Legal Standards Section II, the ALJ found at step one that Plaintiff had engaged in substantial gainful activity in the third quarter of 2018 and the second quarter of 2019, but did not engage in substantial gainful activity for twelve consecutive months from the alleged disability onset date until about June of 2018 and then after July 2019. (R. 615-16.) Therefore, the ALJ continued to the next step of the evaluation for the periods the claimant did not engage in substantial gainful activity. (R. 616.)
At step two, the ALJ determined that the following impairments were severe: depressive disorder, anxiety disorder, mild cognitive impairment and COPD. (Id.) The ALJ found that the obesity, mild hearing loss, right shoulder arthritis, hypertension and bilateral macular degeneration were not severe because based on the evidence they did not have “more than a minimal effect on [Plaintiff's] ability to do basic work activities.” (Id.)
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 617) The ALJ found Plaintiff's COPD did not meet Listing 3.02 and that the mental impairments did not meet the criteria for Listing 12.04 or 12.06. (Id.) He found that Plaintiff's mental impairment did not meet the standards for “paragraph B” in which “a mental impairment must result in at least one extreme or two marked limitations in a broad area of functioning.” (Id.) The ALJ found that Plaintiff had mild limitations in understanding, remembering or applying information, interacting with others and adapting or managing oneself, and a moderate limitation in concentrating persisting or maintaining pace. (R. 617-18.) The ALJ also found that the record failed to establish the existence of the “paragraph C” criteria. (R. 618.)
The ALJ then assessed Plaintiff's RFC, determining that she could perform “medium work except she could lift/carry fifty pounds occasionally and twenty-five pounds frequently, and sit for six hours, stand for six hours, and walk for one hour in an eight-hour workday . . . occasionally climb ramps and stairs . . . must avoid concentrated exposure to respiratory irritants [and] weather extremes of hot and cold.” (R. 619.) The ALJ further found Plaintiff “[could] remember, understand and carry out all instructions necessary to perform SVP level 1 or 2 jobs, up to reasoning level 3,” “adapt to routine changes in the work places,” “make all work-related decisions necessary to perform SVP level 1 or 2 jobs,” “respond appropriately to supervision,” maintain “routine interpersonal contact with supervisors, coworkers and the public, and maintain “attention and concentration for routine repetitive unskilled rote work.” (Id.)
Upon evaluation of the opinion evidence regarding Plaintiff's physical impairments, the ALJ found the opinion of consultative examiner Dr. Ravi “largely unpersuasive” because, although Dr. Ravi supported his opinion with an examination, the examination occurred on a single occasion, and “the overall evidence of record [was] not consistent with limitations regarding [Plaintiff's] use of her shoulder or her hearing, as there [was] no evidence of findings, symptoms, or treatment that indicate these are severe impairments.”(R. 620.) However, the ALJ found Dr. Ravi's opinion limiting Plaintiff's exposure to respiratory irritants to be persuasive because it was consistent with evidence in the record about her COPD and her testimony. (Id.)
As set forth in the Discussion Section, infra, although the ALJ assumed that Dr. Ravi's opinion regarding Plaintiff's limitations was based in part on Plaintiff's shoulder injuries, there actually is no mention of any shoulder complaints in Dr. Ravi's report and he does not list any shoulder impairment among the diagnoses. (See R. 568-71.) Dr. Ravi's report only discussed Plaintiff's complaints about her hearing loss, hypertension and COPD. (See R. 568.)
The ALJ further found that the opinion by State agency evaluator Dr. Gauthier that Plaintiff was limited to medium work and should avoid concentrated exposure to respiratory irritants was persuasive because it was consistent with the overall record which indicated only mild COPD and no other severe physical impairment. (Id.) However, the ALJ found that Plaintiff's testimony supported an additional limitation on walking only on hour per day. (Id.)
The ALJ found the opinion of consultative examiner Dr. Meisel to be unpersuasive because it was inconsistent with his examination, which found Plaintiff to have full strength of her extremities and full range of motion of her joints, and was “internally inconsistent and illogical.” (R. 621.) The ALJ explained that he found it “inconceivable that an individual who has severe COPD would be limited to lifting/carrying only up to 20 lbs. (albeit continuously), yet would be able to walk to walk continuously at one time without interruption, would have no limits at all climb stairs, ramps, ropes, ladders or any other postural limitations, and can have continuous exposure to weather extremes and respiratory irritants.” (Id.) Further, the ALJ noted that the records documented few, if any, limitations attributable to her COPD. (Id.)
Moving on to step four, the ALJ found that Plaintiff had past relevant work as an administrative assistant and an executive secretary, both of which were sedentary in exertion and skilled. (R. 625.) However, because Plaintiff's past relevant work exceeded the non-exertional demands of the residual functional capacity, the ALJ found that she was unable to perform her past relevant work. (Id.)
At step five, the ALJ considered Plaintiff's age, education and work experience, along with the RFC determination, and, based on testimony from the VE, concluded there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, including laundry worker, dining room attendant and cleaner II. (R. 626.) Therefore, the ALJ found that Plaintiff was not disabled during the relevant period and denied her claim for benefits. (R. 627.)
LEGAL STANDARDS
I. Standard Of Review
A motion for judgment on the pleadings should be granted if it is clear from the pleadings that “the moving party is entitled to judgment as a matter of law.” Burns Int'l Sec. Servs., Inc. v. Int'l Union, United Plant Guard Workers of Am., Local 537, 47 F.3d 14, 16 (2d Cir. 1995) (citing Fed.R.Civ.P. 12(c)). 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[.]” Ellington v. Astrue, 641 F.Supp.2d 322, 328 (S.D.N.Y. 2009); 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). “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 she 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).
[A]n 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. Id.
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. Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). It is only after the claimant proves that she 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. Id. at 50-51.
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(c).
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. § 404.1520c(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).
DISCUSSION
Plaintiff argues that the ALJ's RFC is unsupported by substantial evidence since he failed to properly evaluate the opinion evidence. (See Pl.'s Mem., ECF No. 16, at 8-10.) Specifically, Plaintiff argues that the ALJ did not properly evaluate the opinions of consultative examiners Dr. Ravi and Dr. Meisel. (See id. at 9-10.) The Court agrees.
Dr. Ravi in August 2017 opined that Plaintiff had moderate limitations in bending, pushing, pulling, lifting, carrying and overhead activities. (R. 571.) In finding that Dr. Ravi's opinion was “largely unpersuasive[,]” the ALJ stated that “[t]he overall evidence of record is not consistent with limitations regarding the claimant's use of her shoulder or her hearing.” (R. 620.) However, Dr. Ravi's opinion cannot be based upon limitations of Plaintiff's use of her shoulder as such limitations nowhere are addressed in Dr. Ravi's examination report.(See R. 568-71.) The ALJ did not consider the consistency and supportability of Dr. Ravi's actual opinion since the ALJ was mistaken as to the basis for such opinion.
Dr. Ravi's diagnoses were bilateral hearing loss, hypertension and COPD. (R. 568.) His opinion regarding Plaintiff's limitation from work requiring fine auditory acuity logically was based upon Plaintiff's hearing loss. (R. 570-71.) Since hypertension alone generally would not cause physical limitations, Dr. Ravi's opinion regarding Plaintiff's moderate limitations in bending, pushing, pulling, lifting, carrying and overhead activities must have been based upon Plaintiff's COPD diagnosis. (R. 571.)
Dr. Meisel in January 2019 opined that due to Plaintiff's respiratory status, she should avoid activities that were mildly to moderately strenuous, and that she had marked limitations of heavy lifting and carrying, climbing ladders, scaffolds and being exposed to unprotected heights. (R. 440.) In finding that Dr. Meisel's opinion was unpersuasive, the ALJ found that such limitations were inconsistent with an assessment of severe COPD. (R. 620-21.) Specifically, the ALJ states that “[i]t is inconceivable that an individual who has severe COPD would be limited to lifting/carrying only up to 20 lbs. (albeit continuously), yet would be able to walk continuously at one time without interruption, would have no limits at all climb[ing] stairs, ramps, ropes, ladders or any other postural limitations, and can have continuous exposure to weather extremes and respiratory irritants.” (R. 621.) It is unclear precisely what point the ALJ is making here.
Even so, the ALJ further stated, with respect to Dr. Meisel's opinion, that “[t]he records do not document any limits at all attributable to the COPD after the alleged onset date other than one complaint of dyspnea on stair climbing in October 2020 without any abnormal findings.” (R. 621.) This is untrue. During her visit with Dr. Berlin in October 2020, in addition to complaining about dyspnea on stair climbing, Plaintiff complained about “dyspnea on exertion.” (R. 1322.) Indeed, Dr. Berlin also noted that Plaintiff had been hospitalized in June 2020 due to “COPD e[x]acerbation.” (Id.) The ALJ himself notes that Plaintiff had been admitted to the hospital in June 2020, but that “the details on this are not clear in the record.” (R. 620.) To the extent that the record is unclear, it was the ALJ's duty “to investigate and develop the facts and develop the arguments both for and against the granting of benefits.” See Moran v. Astrue, 569 F.3d 108, 11213 (2d Cir. 2009). Thus, the ALJ did not properly consider the consistency and supportability of Dr. Meisel's opinion.
The Court cannot conclude that these errors were harmless. The ALJ based his determination that Plaintiff could perform medium work, at least in part, on his conclusion that the record did not support any limitations in lifting or carrying for less than fifty pounds based upon a severe medically determinable impairment. (R. 625.) As set forth above, this reflects a misunderstanding of Dr. Ravi's opinion, which appears to have attributed exertional limitations to Zukergood's COPD. Dr. Ravi's opinion also was consistent with Dr. Meisel's opinion and Plaintiff's testimony (see R. 646-47 (testifying to limitation in lifting due to her COPD)), factors that the ALJ did not consider given his error. If credited, Dr. Ravi's opinion that Plaintiff was limited to moderate lifting and/or carrying, among other limitations, likely would have precluded a finding that she could perform medium work. See Sagman v. Comm'r of Soc. Sec., No. 20-CV-04257 (CS) (JCM), 2021 WL 5831114, at *17 (S.D.N.Y. Dec. 8, 2021) (noting “general rule” that moderate exertional limitations are inconsistent with medium work) (citing Kociuba v. Comm'r of Soc. Sec., No. 16-CV-00064 (GTS), 2017 WL 2210511, at *8 (N.D.N.Y. May 19, 2017) (“a moderate limitation in exertional activities such as lifting, carrying, pushing, and pulling is more consistent with an ability to perform light (rather than medium) work.”)). The same is true for Dr. Meisel's opinion that Plaintiff should avoid activities that are mildly to moderately strenuous. Accord Sagman, 2021 WL 5831114, at *17 (ALJ erred by finding moderate limitations in strenuous activity were consistent with medium work).
The ALJ's determination that Plaintiff could perform medium work was supported by the opinion of the state agency review physician, Dr. Gauthier, which the ALJ found to be “generally persuasive.” (R. 620.) However, Dr. Gauthier's assessment does not include a citation to any specific medical evidence regarding Plaintiff's ability to lift and/or carry. (R. 81.) Instead, it appears to be based on the lack of exacerbations of Plaintiff's COPD up until that point.(See id.) The Court finds that such evidence, alone, insufficient to support the conclusion that Plaintiff could perform the exertional requirements of medium work.
State agency physicians are qualified as experts in the evaluation of medical issues in disability claims and, thus, their opinions can constitute substantial evidence “when consistent with the record as a whole.” Cepeda v. Comm'r of Soc. Sec., No. 19-CV-04936 (BCM), 2020 WL 6895256, at *10 (S.D.N.Y. Nov. 24, 2020) (citing cases); see also Harris v. Berryhill, No. 18-CV-00651 (WFK), 2020 WL 8361918, at *4 (E.D.N.Y. June 19, 2020) (“the Second Circuit has made it clear that the opinion of a State agency medical consultant may constitute substantial evidence to support an ALJ's RFC determination if such opinion is itself supported by substantial evidence.”) (cleaned up) (citing Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995)).
The Court notes that the state agency physician's assessment was from August 2017 (R. 84-85) and, thus, did not consider later evidence in the record regarding Plaintiff's COPD exacerbations.
Because I recommend remand due to the ALJ's failure to properly consider the opinions of Dr. Ravi and Dr. Meisel, the Court does not address Plaintiff's arguments regarding the ALJ's evaluation of Plaintiff's credibility. (See Pl.'s Mem. at 10-11.)
Plaintiff moves the Court to remand for the calculation of benefits or, in the alternative, to remand for further proceedings. (Pl.'s Mem. at 11.) The Court may remand solely for the calculation of benefits when “the records provide[ ] persuasive evidence of total disability that render[s] any further proceedings pointless.” Barthelemy v. Saul, No. 18-CV-12236 (ER) (JLC), 2019 WL 5955415, at *7 (S.D.N.Y. Nov. 13, 2019), report and recommendation adopted, 2020 WL 1528479 (S.D.N.Y. Mar. 31, 2020) (quoting Williams v. Apfel, 204 F.3d 48, 50 (2d Cir. 1999)). However, where “the ALJ has applied an improper legal standard,” courts routinely remand to the Commissioner for further development of the evidence. See id. (citing Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)) (internal quotation marks and alterations omitted). Under the circumstances here, the Court finds that remand for further proceedings is appropriate.
CONCLUSION
For the reasons set forth above, I respectfully recommend that Plaintiff's motion be GRANTED, the Commissioner's cross-motion be DENIED, and this action be remanded for further proceedings.
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. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). 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 Gardephe.
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).