Opinion
16-CV-7419 (GBD)(SN)
01-22-2018
DAVID ALMODOVAR, Plaintiff, v. CAROLYN W. COLVIN, Defendant.
REPORT AND RECOMMENDATION SARAH NETBURN, United States Magistrate Judge.
TO THE HONORABLE GEORGE B. DANIELS:
Plaintiff David Almodovar brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the final determination of the Commissioner of Social Security (the "Commissioner") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Almodovar moves for judgment on the pleadings to reverse or vacate the Commissioner's determination under Federal Rule of Civil Procedure 12(c), and the Commissioner cross-moves to uphold the Commissioner's determination and dismiss the case.
Because I find that the administrative law judge ("ALJ") failed to apply the treating physician rule correctly, I recommend GRANTING the plaintiff's motion for judgment on the pleadings, VACATING the Commissioner's denial of benefits, and REMANDING the case. I also recommend DENYING the Commissioner's cross-motion for judgment on the pleadings.
BACKGROUND
On May 7, 2013, Almodovar applied for DIB and SSI, alleging that he was disabled beginning January 23, 2013, due to knee and back pain, complications and pain following a coronary bypass surgery, asthma, phlebitis, obesity, sleep apnea, diabetes, depression, and anxiety. Administrative Record at 33, 175, 223, ECF No. 12 [hereinafter AR]. After his application was initially denied on July 29, 2013, Almodovar requested a hearing. Id. at 14. ALJ Louis M. Catanese, Jr. conducted a hearing on September 26, 2014, and issued a decision on October 27, 2014, holding that Almodovar was not disabled within the meaning of the Social Security Act. Id. at 14-23. On July 19, 2016, the Appeals Council denied Almodovar's request for review. Id. at 1. Almodovar subsequently filed this case challenging the Commissioner's denial of his application for DIB and SSI.
I. Almodovar's Testimony
During the administrative hearing on September 26, 2014, then-53-year-old Almodovar testified that he had completed high school and two years of college. Id. at 37. He worked as an assistant therapist for people with autism from 1993 to 2001 and then as a mail carrier for the U.S. Postal Service until January 2013. Id. at 37, 42-43, 196-98, 221. Almodovar stated that he had a heart attack in January 2013 and underwent a coronary bypass surgery. Id. at 34, 43. He had lost nearly 100 pounds since the surgery but was still experiencing chest pains, difficulty breathing, numbness, and tingling. Id. at 34, 43. He indicated that his sternum had not healed properly after the procedure and that he needed additional surgery, but he was afraid to undergo surgery again. Id. at 43-44. Almodovar also testified that he experienced a great deal of pain in his back and knees. Id. at 44-45. Doctors had operated on the meniscus in his right knee a few years earlier. Id. at 47.
Due to problems with his chest, back, and knee, Almodovar stated that he had difficulty sitting for more than 15 or 20 minutes and that he could only stand for about 30 minutes at a time, walk for about 20 minutes, and lift about 10 pounds for a short period of time. Id. at 45. He also testified that he sometimes used a cane, especially when the weather got cold. Id. He took Metformin for diabetes, Astonin and Metoprolol for his heart condition and hypertension, and Aleve for his back and knee pain. Id. at 47, 49. In addition, Almodovar testified that he experienced depression, anxiety, irritability, memory problems, and difficulty focusing. Id. at 48-49, 55. He also stated that he had asthma, which caused him to become fatigued when walking up and down stairs. Id. at 54.
Almodovar lived in a fifth-floor walk-up apartment with a roommate and her daughter. Id. at 36. He noted that he was able to walk up and down the stairs to his apartment but had to stop and rest after each flight. Id. at 36, 54. In addition, he stated that he was able to prepare meals, go to the post office, do light grocery shopping, do laundry at his own pace, and shower and dress himself, though he had difficulty shaving his head and face because raising his arms caused pain. Id. at 39, 41, 52. He testified that he usually walked or took the bus when running errands or going to medical appointments. Id. at 38. When walking, he would often stop at bus stops to sit down and rest. Id. at 45. Almodovar attended a vocational program for seven hours each day to try to determine what type of work he could do. Id. at 40-41.
II. Evidence of Impairments
A. Treating Physicians
1. Orthopedic Conditions
Treatment records from Almodovar's primary care physician, Dr. Ruben Carvajal, demonstrate that Almodovar complained of various health issues from 2003 to 2012, including chronic venous insufficiency, carpal tunnel, and shoulder, back, leg, knee, and foot pain. In 2006, Dr. Carvajal referred Almodovar to a podiatrist. AR at 373. Almodovar reported foot pain and difficulty walking, and the podiatrist treated him for edema and tendonitis. Id. at 373-74. In January 2009, Dr. Carvajal completed a Family Medical Leave Act ("FMLA") form stating that Almodovar experienced one to two episodes each month of peripheral venous insufficiency in both legs and carpal tunnel syndrome, which "incapacitated" him, prevented him from working, and required one to three days of bed rest. Id. at 410. In 2010, Almodovar complained of shoulder pain, upper back pain, and periodic pain, swelling, and cramping in his legs. Id. at 304-08. Dr. Carvajal observed tenderness in Almodovar's upper back, decreased range of motion of his right shoulder, and crepitation when moving his right shoulder. Id. Near the end of 2010, Dr. Carvajal completed another FMLA form indicating that Almodovar was suffering from peripheral venous insufficiency and carpal tunnel syndrome, which prevented him from standing and sorting mail for prolonged periods of time. Id. at 358-60.
In May 2011, Almodovar injured his right knee while lifting boxes at work. Id. at 294, 298. He went to the emergency room and received an x-ray that showed bone spurs. Id. at 298. Dr. Carvajal noted that Almodovar reported experiencing "pain when walking or stretching . . . the knee." Id. An MRI later showed "[p]rominent joint effusion," a "[c]omplete tear to the lateral collateral ligament with soft tissue swelling," and a "[h]orizontal tear through the posterior horn of the lateral meniscus." Id. at 356.
As of July 2011, Almodovar was still experiencing "significant pain" in his knee but had returned to work. Id. at 292. He reported to Dr. Carvajal that he was "able to walk a little bit" but could not stand or walk for prolonged periods and had difficulty lifting and carrying. Id. at 296. Dr. Carvajal reviewed the MRI results and observed that Almodovar had tenderness of the tendon of the distal femur and that the knee's range of motion had decreased to 90 degrees. Id. Dr. Carvajal gave Almodovar a doctor's note stating that the patient would be able to return to work on July 18, 2011, with limitations of lifting less than 10 pounds, carrying less than 5 pounds, and avoiding climbing stairs, squatting, and walking and standing for prolonged periods. Id. at 355. Dr. Carvajal later completed a Workers' Compensation form stating that Almodovar could lift and carry 5 pounds continuously and 15 pounds intermittently, sit for 2 hours per day, stand for 4 hours per day, and walk for 2 hours per day. Id. at 351. In September 2011, Almodovar was cleared for arthroscopic surgery on his knee. Id. at 230-32. Despite the surgery, in August 2013 and again in October 2013, Dr. Carvajal observed that Almodovar was continuing to experience tenderness in his right knee and that the knee's range of motion had decreased to 90 degrees. Id. at 469, 474.
In November 2013, an MRI showed that Almodovar had various spinal issues. Id. at 441. Dr. John Lyons diagnosed Almodovar with a "right paracentral herniation with stenosis of the canal at L4-L5," a "disc bulge at L3-L4," a "bilateral foraminal stenosis from L3-L4 through L5-S1," and "shallow levocurvature." Id. Almodovar visited Dr. Carvajal again in May 2014, complaining of "low back pain for over a month" and "pain with bending[,] lifting, getting up from a chair or bed." Id. at 460. In the examination, Dr. Carvajal did not observe any effusions or synovitis but noted that Almodovar was experiencing pedal edema and directed him to continue taking painkillers. Id. In June 2014, Almodovar's cardiothoracic surgeon, Dr. David D'Alessandro, likewise noted that Almodovar was experiencing back pain, but he also indicated that Almodovar was able to walk one mile for exercise and had full range of motion in all extremities. Id. at 512-13.
2. Coronary Conditions
In January 2013, Almodovar went to the emergency room, where he was diagnosed with asthmatic bronchitis and discharged. Id. at 234, 289. He returned to the hospital the following day and was treated for a non-ST elevation myocardial infarction and three-vessel coronary artery disease. Id. at 234-36. Dr. D'Alessandro performed a coronary artery bypass graft surgery. Id. at 263. Following the surgery, Almodovar was examined by his cardiologist, Dr. Yoram Amsalem, and Dr. D'Alessandro during various follow-up visits. Id. at 259, 273, 419.
In February 2013, Dr. Amsalem noted that Almodovar was experiencing swelling in his extremities, reduced air entry, and frequent bruising. Id. at 273. In March 2013, Almodovar reported to Dr. D'Alessandro that he was having pain near the surgical incision sites and was taking Percocet to relieve the pain. Id. at 254, 256. Dr. D'Alessandro diagnosed Almodovar with a mild sternal dehiscence, which meant that the sternal components had separated. Id. at 254. Dr. D'Alessandro observed that Almodovar had tenderness in his chest but noted that Almodovar's incisions were healing, he had full range of motion in all extremities, he had a steady gait, and he was experiencing no acute distress. Id. at 257-58.
By late March 2013, Almodovar told Dr. Amsalem that he felt better, had stopped taking painkillers, had resumed walking, and was not experiencing exertional chest pain. Id. at 275. In April 2013, Almodovar followed up with Dr. D'Alessandro, who noted that Almodovar's "sternum remain[ed] unstable with a palpable click." Id. at 249. He also observed that Almodovar had full range of motion in all extremities, a steady gait, and no acute distress. Id. Dr. D'Alessandro noted that Almodovar wanted to return to work as a mail carrier but that the job required heavy lifting, which Almodovar was unable to do. Id. Dr. D'Alessandro decided to reevaluate Almodovar in four weeks to determine whether "additional surgery might be required to stabilize his sternum so that he may return to work." Id.
In May 2013, Almodovar told Dr. D'Alessandro that he was experiencing stabbing pains and numbness in his chest, sporadic stabbing pains and numbness in his buttock and thigh, and difficulty sleeping due to the discomfort in his chest and leg. Id. at 243-45, 415-16. Dr. D'Alessandro observed that Almodovar had pedal edema and varicosities in his left leg but had full range of motion in all extremities, a steady gait, and no acute distress. Id. at 245. A CT scan later showed that Almodovar's sternum was not united and that the space between the sternal components had increased since the prior examination. Id. at 241. In assessing this condition, Dr. D'Alessandro indicated that "the displacement between the 2 halves of the sternum is minimal" and that there was "no sternal instability." Id. at 445. Dr. D'Alessandro also noted that Almodovar had full range of motion in all extremities, a steady gait, and no acute distress. Id.
In November 2013, Dr. D'Alessandro indicated that Almodovar still had some chest discomfort but that his symptoms had "diminished." Id. at 447. He also pointed out that Almodovar had "successfully lost more than 70 pounds," had full range of motion in all extremities, and was experiencing no acute distress. Id. 447-49. Nevertheless, Almodovar continued to experience a sternal click and sternal pain over the months that followed. Id. at 451-53, 564, 611. In June 2014, Almodovar returned to Dr. D'Alessandro, who noted that Almodovar was still experiencing persistent chest discomfort and a sternal dehiscence. Id. at 513. In light of the severity of Almodovar's ongoing symptoms, Dr. D'Alessandro recommended that Almodovar undergo sternal rewiring surgery. Id. Dr. D'Alessandro also indicated that Almodovar was walking one mile for exercise, had full range of motion in all extremities, had a steady gait, and had no acute distress. Id. at 512-13. A CT scan in July 2014 showed no sternal diastases but did show cirrhosis and splenomegaly. Id. at 506.
3. Asthma
As discussed above, in January 2013, Almodovar was diagnosed with asthmatic bronchitis. Id. at 234, 289. During a follow-up examination with Dr. Carvajal in March 2013, Almodovar reported that his asthma was stable and that he was no longer using asthma medications. Id. at 289. Dr. Carvajal determined that Almodovar had allergic asthma without "status asthmaticus or acute axacerbation." Id. at 290. In October 2013, Almodovar told his pulmonologist, Dr. David Rosen, that his breathing problems had significantly improved since the bypass surgery and that he was able to walk up five flights of stairs without stopping. Id. at 591. But Almodovar also reported that he had recently experienced "some chest congestion since the weather got [colder] along with some worsening chest tightness over [the] right sternum." Id. Accordingly, Dr. Rosen directed Almodovar to continue using his asthma medications. Id. at 593. In January 2014, Almodovar again reported that his breathing problems had significantly improved since the surgery and that he was able to walk up five flights of stairs without stopping and walk ten blocks without stopping. Id. at 525. Dr. Rosen noted that Almodovar's pulmonary function test was normal, he did not require inhalers, and his symptoms of dyspnea appeared to be "a manifestation of anxiety/depression." Id. at 527.
4. Depression and Anxiety
During his January 2014 pulmonology examination, Almodovar told Dr. Rosen that he believed he was experiencing general anxiety and wondered whether it was affecting his breath. Id. at 525. Almodovar also became "tearful about his life stressors (financial, being a burden to his family)." Id. Accordingly, Dr. Rosen referred Almodovar to Ms. Ana Oni-Eseleh, a licensed clinical social worker. Id. at 522. Almodovar told Ms. Oni-Eseleh that his mother and sister had died recently. Id. He said that he did not want to live anymore but denied having an active plan or history of self-harm. Id. He also noted that he had open-heart surgery a year earlier, had been unable to work, and had been denied social security benefits. Id.
Almodovar had several follow-up appointments with Ms. Oni-Eseleh during the months that followed. In March 2014, Almodovar reported that he was continuing to struggle with the deaths of his mother and sister, felt that "so many things ha[d] gone wrong for him since he stopped working over a year ago," and was frustrated with trying to resolve bills for his union dues and medical insurance. Id. at 520. On April 4, 2014, Almodovar indicated that he was doing a little better, had reconnected with some of his peers, and felt good being around friends and doing things he enjoyed. Id. at 517. Yet he also stated that he had been in a lot of discomfort, had been experiencing a "flooding of feelings," and was worried about dying during his upcoming surgeries. Id. Ms. Oni-Eseleh administered tests that suggested Almodovar was experiencing moderate levels of anxiety and depression. Id. at 518. In a subsequent appointment later that month, Almodovar reported feeling angry, depressed, frustrated, and irritable. Id. at 515.
In August 2014, Almodovar reported that he had been feeling more anxious and depressed. Id. at 606. He was struggling with his self-esteem and engaged in a lot of negative self-talk. Id. Testing suggested that Almodovar was experiencing severe anxiety and moderately severe depression. Id. at 607. In addition, Almodovar stated that he had thoughts of suicide and frequent thoughts about dying, but he denied ever acting on those thoughts. Id. at 608. Ms. Oni-Eseleh noted that Almodovar was experiencing symptoms of depression and anxiety and that his condition had deteriorated. Id. Ms. Oni-Eseleh referred Almodovar to a mental health provider for further treatment. Id. at 609.
B. Consultative Examination
On July 22, 2013, Dr. Sharon Revan conducted a consultative examination of Almodovar. Id. at 437. Dr. Revan observed that Almodovar "appeared to be in no acute distress," limped on the right, could not walk on his heels and toes, and was able to squat halfway while holding on. Id. at 438. She noted that Almodovar's stance was normal, he needed no help changing or getting on and off the exam table, and he was able to rise from a chair without difficulty. Id. Dr. Revan indicated that Almodovar's heart, chest, and lungs appeared normal. Id. at 439. She noted that Almodovar had full range of motion in his ankles, knees, hips, shoulders, elbows, forearms, wrists, and neck. Id. He also had full range of motion in his back, except for lumbar spine flexion, which was limited to 60 degrees. Id. Almodovar's joints were stable and had no tenderness, redness, heat, swelling, or effusion. Id. He had pain and crepitus in his knees, varicose veins, and edema in his left leg. Id.
Dr. Revan opined that Almodovar had no limitations with personal grooming, with lying down, and with the upper extremities for fine and gross motor activities. Id. at 440. She indicated that Almodovar had mild limitations with climbing stairs (due to knee pain and shortness of breath), walking (due to shortness of breath), and activities of daily living. Id. Finally, Dr. Revan opined that Almodovar had "[l]imitation with standing due to knee, ankle, and left leg pain." Id.
C. Treating Physician's Opinion
On October 16, 2014, Almodovar's primary care physician, Dr. Carvajal, completed a medical assessment questionnaire. Id. at 630-32. Dr. Carvajal stated that Almodovar had an L4-L5 lumbar disc herniation, an L5-S1 radiculopathy, a torn meniscus in his right knee, and osteoarthritis in his right knee. Id. at 630. The physician also noted that Almodovar experienced severe back pain, which radiated to the right lower extremities; pain in his right knee with crepitation of the joint; pain with prolonged standing and minimal walking; and shortness of breath and wheezing due to asthma. Id. at 630, 632. Dr. Carvajal indicated that Almodovar could lift and carry less than 15 pounds and could do so very little in an 8-hour day, could stand and walk for less than 30 minutes in an 8-hour day, and could sit for less than 1 hour total in a day. Id. at 630-31. In addition, Dr. Carvajal stated that Almodovar could never climb, stoop, kneel, crouch, crawl, push, or pull and could only occasionally balance and reach. Id. at 631-32. Finally, Dr. Carvajal indicated that Almodovar could not be exposed to moving machinery, temperature extremes, dust, fumes, humidity, or vibrations due to his asthma. Id. at 632.
III. Vocational Expert Testimony
At the administrative hearing, the ALJ presented vocational expert Josiah L. Pearson with three hypotheticals. First, the ALJ described a hypothetical claimant with the following characteristics: Almodovar's age, educational background, and work history, who could perform no greater than light work; could occasionally stoop, kneel, and crouch; could perform all other postural activities frequently; could occasionally reach overhead with the bilateral upper extremities; and would need to avoid concentrated exposure to pulmonary irritants and extreme cold. Id. at 58-59. Mr. Pearson stated that this hypothetical claimant would be capable of performing certain jobs that required a light level of physical exertion, such as cashier/checker, route delivery clerk, unskilled mail clerk, and marker. Id. at 59-60.
Second, the ALJ asked Mr. Pearson to identify any jobs that could be performed by a hypothetical claimant who had the same limitations as the first but could perform only simple, routine, repetitive tasks. Id. at 60. Mr. Pearson stated that such a claimant could perform the jobs of mail clerk, marker, and photocopying machine operator. Id. at 60-61. Third, the ALJ asked whether the assessment would change if the same hypothetical claimant needed two or three additional 15-minute rest breaks during a typical 8-hour work day. Id. at 61. Mr. Pearson indicated that the number of available jobs would decrease by approximately 75% under that scenario. Id.
Almodovar's attorney then presented Mr. Pearson with a hypothetical claimant who had the same limitations as the ALJ's second hypothetical but who required a sit/stand option. Id. at 62. Mr. Pearson responded that the marker and mail clerk positions "would tolerate a sit/stand option at some level." Id. Almodovar's attorney then asked whether Mr. Pearson's assessment would change if the claimant needed to alternate positions every 20 to 25 minutes. Id. Mr. Pearson opined that under those circumstances, the number of marker positions would likely decrease by about 50% and the number of mail clerk positions would likely decrease by about 25%. Id.
IV. The Commissioner's Decision
The ALJ found that Almodovar suffered from the following severe impairments: asthma, coronary artery disease, status post bypass grafting with sternal dehiscence, status post myocardial infarction, diabetes mellitus, degenerative disc disease of the lumbar spine, bilateral knee degenerative joint disease, status post right knee arthroscopic surgery, cirrhosis, and a history of obesity. Id. at 16.
But the ALJ determined that Almodovar was not disabled. He noted that Almodovar's "consistently good range of motion and otherwise normal physical examinations indicate that he is not as limited as alleged." Id. at 21. Thus, the ALJ concluded that Almodovar's "statements concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely credible." Id. at 19. In addition, because he determined that Dr. Carvajal's opinion was inconsistent with Almodovar's treatment notes, the ALJ gave little weight to the treating physician's opinion that Almodovar had significant limitations in his ability to sit, stand, walk, and lift. Id. at 21. Instead, the ALJ gave great weight to Dr. Revan's assessment that Almodovar's limitations were generally mild. Id. at 21.
The ALJ concluded that Almodovar had "the residual functional capacity to perform light work," except that he would only occasionally be able to stoop, kneel, crouch, or reach overhead and would need to avoid concentrated exposure to extreme cold and pulmonary irritants. Id. at 18. The ALJ also determined that Almodovar was unable to perform any of his past relevant work, but given his age, education, work experience, and residual functional capacity, he could perform the jobs of mail clerk, marker, and photocopy machine operator. Id. at 22-23. The Appeals Council subsequently denied Almodovar's request for review. Id. at 1.
DISCUSSION
I. Standard of Review
A motion for judgment on the pleadings under Rule 12(c) 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. (UPGWA) & Its Local 537, 47 F.3d 14, 16 (2d Cir. 1995). 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 of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The Commissioner's determination may be set aside only if "it is based upon legal error or is not supported by substantial evidence." Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998)). "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)). 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); accord Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).
II. Definition of Disability
A claimant is disabled under the Social Security Act if he demonstrates an "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 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A "physical or mental impairment" is defined as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. §§ 423(d)(3), 1382c(a)(3)(D). A claimant will be determined to be disabled only if the "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." Id. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The Social Security Administration has established a five-step sequential evaluation process for making disability determinations. See 20 C.F.R. §§ 404.1520, 416.920. The steps are followed in order: if it is determined that the claimant is not disabled at a step of the evaluation process, the evaluation will not progress to the next step. The Court of Appeals has described the process as follows:
First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a "severe impairment" that significantly limits her physical or mental ability to do basic work activities. If the claimant suffers
such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (quoting Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999)). "The claimant bears the burden of proof in the first four steps of the sequential inquiry; the Commissioner bears the burden in the last." Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013).
"The Social Security regulations define residual functional capacity as the most the claimant can still do in a work setting despite the limitations imposed by his impairments." Selian, 708 F.3d at 418; see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In this case, the ALJ concluded that Almodovar had the residual functional capacity to perform light work. The regulations explain that "[l]ight work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. §§ 404.967(b), 1567(b). "[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." Id. In addition, Social Security Ruling 83-10 indicates that because "frequent lifting or carrying requires being on one's feet up to two-thirds of a workday, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday." SSR 83-10, 1983-1991 Soc. Sec. Rep. Serv. 24 (1983).
III. Treating Source Rule
The ALJ's decision to deny Almodovar benefits largely hinged on his refusal to give controlling weight to the opinion of Almodovar's treating physician, Dr. Carvajal. The Social Security regulations require the ALJ to give "controlling weight" to the opinions of "treating sources" when those opinions are "well-supported by medically acceptable clinical and laboratory diagnostic techniques" and "not inconsistent with the other substantial evidence." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Treating sources "are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant's] impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations." Id.
"The failure to provide good reasons for not crediting the opinion of a claimant's treating physician is a ground for remand." Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (internal quotation marks omitted) (quoting Burgess v. Astrue, 537 F.3d 117, 130 (2d Cir. 2008)). Even if the treating physician's opinion is contradicted by other substantial evidence, it is "entitled to some extra weight . . . because the treating source is inherently more familiar with a claimant's medical condition than are other sources." Schisler v. Bowen, 851 F.2d 43, 47 (2d Cir. 1988). But "the less consistent that opinion is with the record as a whole, the less weight it will be given." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).
The ALJ gave little weight to Dr. Carvajal's treating source opinion because it was purportedly "inconsistent with the claimant's treatment notes." AR at 21. Almodovar's treatment notes often indicated that he had full range of motion in his extremities, a steady gait, and no acute distress. The treatment notes also suggested that Almodovar felt significantly better in the first few months following his heart surgery. Eventually, Almodovar told Dr. D'Alessandro that he was able to walk a mile for exercise, and on two occasions, Almodovar reported to his pulmonologist that he was able to walk up five flights of stairs without stopping.
Contrary to the ALJ's assessment, however, the evidence from the treatment notes was not inconsistent with Dr. Carvajal's opinion that Almodovar could lift and carry less than 15 pounds, could stand and walk for less than 30 minutes in a day, could sit for less than 1 hour total in a day, and could not perform postural activities other than balancing and reaching. A person with full range of motion, a steady gait, and no acute distress during a brief examination with a treating physician might nevertheless have difficulty carrying large amounts of weight and standing, walking, and sitting for long periods of time. Moreover, even Dr. Revan's consultative examination, which was given great weight by the ALJ, showed that Almodovar had limitations with standing due to ankle, knee, and leg pain as well as mild limitations with walking, climbing stairs, and activities of daily living.
The treating physician's opinion was also supported by medically acceptable diagnostic techniques. Following Almodovar's knee injury, Dr. Carvajal reviewed MRI results showing "[p]rominent joint effusion," a "[c]omplete tear to the lateral collateral ligament with soft tissue swelling," and a "[h]orizontal tear through the posterior horn of the lateral meniscus." Id. at 356. He also observed that Almodovar had tenderness of the tendon of the distal femur and that the knee's range of motion had decreased to 90 degrees. Almost two years later, Dr. Carvajal's treatment notes stated that Almodovar was continuing to experience tenderness in his right knee and that the knee's range of motion was limited to 90 degrees. Likewise, when Almodovar complained of back pain, Dr. Carvajal reviewed MRI results showing a "right paracentral herniation with stenosis of the canal at L4-L5," a "disc bulge at L3-L4," a "bilateral foraminal stenosis from L3-L4 through L5-S1," and "shallow levocurvature." Id. at 441, 630. Based on this information and various examinations of the patient, Dr. Carvajal concluded that Almodovar experienced severe back pain.
In addition, to override the opinion of a treating physician, an ALJ must follow a structured evaluative procedure and explain his decision. See Selian, 708 F.3d at 418; Rolon v. Comm'r of Soc. Sec., 994 F. Supp. 2d 496, 506 (S.D.N.Y. 2014). The ALJ must explicitly consider: (1) the length of the treatment relationship and the frequency of the examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) the consistency of the treating physician's opinion with the record as a whole; (5) the specialization of the physician in relation to the condition being treated; and (6) any other significant factors. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). In this case, the ALJ gave reasons for not crediting Dr. Carvajal's opinion but did not discuss the nature, extent, length, or frequency of Dr. Carvajal's treatment relationship with Almodovar, Dr. Carvajal's specialization in relation to the condition being treated, or the evidence that supported Dr. Carvajal's opinion. Because the ALJ did not properly apply the treating source rule, I recommend vacating the Commissioner's decision and remanding the case to allow the ALJ to conduct the proper analysis.
IV. Credibility Assessment
Almodovar argues that the ALJ improperly rejected his own account of his symptoms and impairments. It is the ALJ's role to evaluate a claimant's credibility and to decide whether to discredit a claimant's subjective estimate of the degree of his impairment. Tejada, 167 F.3d at 775-76; 20 C.F.R. §§ 404.1529(b), 416.929(b). In making credibility determinations, the ALJ should consider "all of the available evidence," including the claimant's "history, the signs and laboratory findings" and statements from the claimant and his treating physicians. 20 C.F.R. §§ 404.1529(c), 416.929(c). A court may set aside a credibility determination only when it is not supported by substantial evidence. Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984).
The ALJ's credibility determination was supported by substantial evidence. The ALJ noted that Almodovar "testified that he takes public transportation, walks or takes the bus when he needs to go somewhere, is able to dress and bathe himself, does household tasks such as making his bed and doing laundry, and performs tasks such as going to the post office and doing light shopping." AR at 21. Moreover, treatment records showed that Almodovar told his physicians he was able to walk a mile for exercise and walk up five flights of stairs without stopping. This evidence undermined Almodovar's testimony regarding the severity of his symptoms, particularly his assertions that he could not walk far without stopping and that he needed to stop and rest after each flight when walking up and down stairs.
Almodovar also argues that the ALJ erred by not considering his thirty-seven year work record in assessing his credibility. A claimant's "life history of hard labor performed under demanding conditions over long hours" may justify "the inference that when he stopped working he did so for the reasons testified to." Singletary v. Sec'y of Health, Ed. & Welfare, 623 F.2d 217, 219 (2d Cir. 1980). But "work history is just one of many factors that the ALJ is instructed to consider in weighing the credibility of claimant testimony." Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998). That Almodovar's "good work history was not specifically referenced in the ALJ's decision does not undermine the credibility assessment, given the substantial evidence supporting the ALJ's determination." Wavercak v. Astrue, 420 F. App'x 91, 94 (2d Cir. 2011). Nonetheless, I recommend directing the ALJ to consider explicitly Almodovar's extensive work history when evaluating his credibility on remand.
CONCLUSION
For the reasons stated above, I recommend GRANTING the plaintiff's motion for judgment on the pleadings, ECF No. 15, VACATING the Commissioner's denial of benefits, and REMANDING the case to the Commissioner for proper analysis in line with the treating physician rule. In addition, I recommend DENYING the Commissioner's cross-motion for judgment on the pleadings, ECF No. 19.
/s/_________
SARAH NETBURN
United States Magistrate Judge DATED: January 22, 2018
New York, New York
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NOTICE OF PROCEDURE FOR FILING OBJECTIONS
TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from the 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), (E), or (F)). A party may respond to another party's objections within 14 days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. 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 Daniels. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. 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).