Opinion
20-CV-8864 (VEC) (BCM)
07-05-2022
HAROLD BAJANA, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
TO THE HONORABLE VALERIE E. CAPRONI, JUDGE.
REPORT AND RECOMMENDATION
BARBARA MOSES, United States Magistrate Judge.
Plaintiff Harold Bajana filed this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final determination of the Commissioner of Social Security (Commissioner) denying his application for Disability Insurance Benefits (DIB). Now before me for report and recommendation are the parties' cross-motions for judgment on the pleadings (Dkt. Nos. 26, 30.) For the reasons that follow, I recommend that plaintiff's motion be denied, the Commissioner's motion be granted, and the case be dismissed.
Pursuant to Fed.R.Civ.P. 25(d), Kilolo Kijakazi, the current Acting Commissioner of Social Security, is substituted for former Acting Commissioner Andrew Saul as the defendant in this case.
I. BACKGROUND
Plaintiff was born on December 11, 1977. See Certified Administrative Record (Dkt. No. 20) (hereinafter "R. ") at 79, 199. He completed four years of college (R. 243), after which he worked as a corrections officer, a substitute teacher, and - from July 2004 to December 2013 - a police officer. (Id.) In 2008, in the course of responding to a police call (R. 322), plaintiff was in a motor vehicle accident and sustained a shattered right femur, as well as injuries to his right hip and knee. (R. 327.) Those injuries required surgical repair with titanium rods and pins (id.), followed by additional surgeries in 2010 and 2013. (R. 322.) Plaintiff returned to work after the accident but was limited to desk duty, which he performed until he retired from the police force in 2013. (R. 40, 243.)
Plaintiff first applied for DIB on April 22, 2015. (R. 62-68). The Social Security Administration (SSA) denied the claim on July 27, 2017 (R. 59-61, 72), after which plaintiff unsuccessfully sought judicial review of the adverse decision. See Bajana v. Saul, 18-CV-6020 (BCM), 2020 U.S. Dist. LEXIS 43543 (S.D.N.Y. Mar. 12, 2020). Plaintiff reapplied for DIB on August 23, 2018 (R. 13), alleging disability beginning on July 28, 2017, due to derangement of the cervical spine, lumbar spine, right knee, and right hip, as well as a right femur injury (R. 80), all relating to the 2008 motor vehicle accident. (R. 86.) The SSA denied that claim on April 9, 2019 (R. 103-10), prompting plaintiff to request a hearing before an Administrative Law Judge (ALJ). (R. 120-21.) The hearing took place before ALJ Michael J. Stacchini on November 7, 2019. (R. 32-58.) On January 9, 2020, the ALJ issued an unfavorable decision (Decision) (R. 13-25) concluding that the plaintiff was not disabled. On January 15, 2020, the Appeals Council denied plaintiff's request for review of the Decision (R. 7-9), rendering the ALJ's determination final.
This action was filed on October 22, 2020, and the SSA filed the Certified Administrative Record on July 12, 2021. Thereafter, both parties requested and obtained extensions of their motion deadlines, citing COVID-related workload issues. (Dkt. Nos. 21-22, 24-25, 28-29, 32-33.) The cross-motions became fully briefed on March 1, 2022. (Dkt. No. 34.)
II. SUMMARY OF RELEVANT MEDICAL EVIDENCE
A. Treating Providers
During the period at issue in the present action, plaintiff received treatment from Anthony Weiner, M.D. (to whom he was referred by his attorney) and Dr. Weiner's practice partner, Felix Karafin, M.D, at Total Body Orthopedics & Rehabilitation in Newburgh, New York. (R. 43, 314, 341-46). The record contains treatment notes and imaging results from April 2018 through October 2019, some prepared by nurse practitioners (NPs) Sharon Lennon and Tameka Bland.
On April 18, 2018, Dr. Karafin performed nerve conduction studies yielding results "consistent with bilateral carpal tunnel syndrome," and recommended that plaintiff wear a carpal tunnel splint. (R. 303-04.) On April 18, 2018, NP Lennon treated plaintiff for "pain management." (R. 313-14.) Her notes, which are sparse in detail and do not reflect any physical examination, state that plaintiff's (unspecified) pain medication "provided appropriate relief," "helped [plaintiff] be more active," and had "no adverse side effects." (Id.)
Although NP Lennon saw plaintiff only four days after his appointment with Dr. Karafin, she recorded his weight as 200 lbs. (R. 313), whereas Dr. Karafin recorded the same patient's weight as 170 lbs. (R. 303.)
On October 15, 2018, plaintiff saw NP Bland for a physical examination. (R. 312.) He complained of pain in the lower back, right hip, and right knee. On examination, NP Bland found that plaintiff had a mildly limited range of motion (ROM) in the cervical and lumbar spine and the right knee, and a positive straight leg raising (SLR) test on the right, but full strength in all lower extremities, and noted that he was taking "NSAIDS [nonsteroidal anti-inflammatory drugs] and muscle relaxants as needed for pain." (Id.) NP Bland wrote that plaintiff was to "return to the office for follow-up to discuss his social security disability case that is pending." (Id.)
On November 7, 2018, plaintiff saw Dr. Karafin, who noted that an MRI of the cervical spine, taken on November 5, 2018, revealed "C5-C6 and C6-C7 bulging discs." (R. 310, 316.)
There was "[m]ild right foraminal narrowing" at both locations. (R. 316.) X-rays of the right knee and right hip, taken on November 7, 2018, were unremarkable, and the hardware used during plaintiff's prior surgery was "intact." (R. 315, 321.) An MRI of the right hip, taken on February 15, 2019, showed a "susceptibility artifact" arising from the hardware used to reconstruct plaintiff's femur but was "[o]therwise unremarkable." (R. 318-19.) An MRI of the lumbar spine, also taken on February 15, 2019, found "disc bulging at the L3-4 level and disc herniation at the L5-S1 level," but no spinal stenosis. (R. 320.)
Plaintiff reported that his back pain was "on and off" but his "neck pain had become more pronounced," accompanied by tension headaches. (R. 310.) After examining plaintiff, Dr. Karafin reported that he had a "full" ROM in the cervical and lumbar spines, no spasm or tenderness, and a negative SLR test. (Id.) In the next paragraph, however, Dr. Karafin reported that plaintiff had "limited lumbar flexion," a positive Spurling's sign, and a "[p]ositive SLR on the right side," as well as limited ROM in the right hip, a "mild Trendelenburg gait pattern," and a "positive Trendelenburg sign." (R. 310-11.) Dr. Karafin advised plaintiff on home stretching techniques and suggested cervical epidural steroid injections if the pain was "not helped by medications." (R. 311.) Plaintiff responded that he was "not a big fan of interventions." (Id.)
On January 9, 2019, plaintiff saw either Dr. Weiner or NP Bland, reporting that he had difficulty walking, could not sit or stand for a prolonged period of time, and that his pain was "at a 10/10." (R. 309.) On April 11, 2019, NP Bland examined plaintiff again, noting that he was having "difficulty with ambulation" and had a "hip hike on right." (R. 344-46.) Later in her note, however, NP Bland wrote that plaintiff was "ambulating normally," but had a "limited range of motion" (ROM) in the right hip and right knee, and recommended that he "consider unloading knee device for long-term use." (Id.) Plaintiff's non-narcotic pain medication was still providing "appropriate relief." (R. 345.)
The January 9, 2019 treatment note bears Dr. Weiner's typed name and NP Bland's handwritten name. (R. 309.)
Dr. Weiner examined plaintiff monthly in July, August, and September 2019, for neck, back, and hip pain. (R. 339-43.) At these visits, Dr. Weiner found that plaintiff had a limited ROM in the lumbar and cervical spine and tenderness to palpation. (R. 341-42.) On July 10, 2019, Dr. Weiner reported that plaintiff was "going to follow up with the surgeon for a total hip replacement," but on August 7, 2019, he recommended physical therapy, moist heat, stretching, and massage. (R. 342-43.)
B. Opinion Evidence
On September 21, 2019, Dr. Weiner signed a form entitled "Patient Functional Assessment to do Sedentary Work" (R. 337-38), and on October 1, 2019, he issued an "updated narrative report," noting that the patient was "actually seen on 4/18/2018." (R. 339-40.)
The only treating note in the record dated April 18, 2018 is signed by NP Lennon, and does not indicate that any physical examination took place that day. (R. 313-14.)
In the October 1, 2019 narrative report, Dr. Weiner wrote that plaintiff complained of pain in the back, right hip and knee; that he had difficulty walking due to "weakness and pain and numbness down the right leg"; that his "leg length discrepancy" was causing "increased pain on left side," as well as a "hip hike on the left"; and that he required a straight cane for ambulation. (R. 339-40.) Dr. Weiner also wrote that plaintiff complained of "headaches and cognitive deficits"; that his "short term memory has been affected since the time of the accident"; and that he had "difficulty concentrating due to persistent headaches." (Id.) With regard to physical exam findings, Dr. Weiner wrote that plaintiff had limited ROM in the cervical and lumbar spine, with tenderness to palpation along the cervical paraspinals; "pain on the iliocostalis thoracis," increased by right scapular elevation and retraction; "atrophy of the right hip girdle"; weakness in the extensor hallucis longus, "anterior tib," iliopsoas, quad, and hamstring muscles on the right; and a positive SLR test on the right. (Id.) Plaintiff had full ROM in the shoulders, elbows, wrists, and hands, but according to Dr. Weiner he complained of paresthesias ("pins and needles") and numbness in the hands, causing him to "drop objects" and experience "difficulty using a keyboard and writing." (R. 339-40.) Dr. Weiner noted that plaintiff continued to take non-narcotic medications (NSAIDs and a muscle relaxant) for his pain and spasms and reported that as a result of his persistent pain and medications, "he has developed erectile dysfunction," for which he was "taking medication[.]" (Id.) Dr. Weiner diagnosed post-concussive disorder, cervical and lumbar radiculopathy, internal derangement of the right hip and right knee, and left hip pain. (R. 340.) He concluded that plaintiff was "totally disabled from all forms of employment including sedentary work." (Id.)
The iliocostalis thoracis muscles, part of the erector spinae group, run along either side of the spine. They "[w]ork in synergy with the two other erector spinae components (longissimus and spinalis) to produce movements of the vertebral column." Physiopedia, "Iliocostalis," https://www.physio-pedia.com/Iliocostalis (all cited webpages last visited July 5, 2022).
The extensor hallucis longus and anterior tibiablis muscles are in the lower leg. See Physiopedia, "Extensor Hallucis Llongus," https://www.physio-pedia.com/ExtensorHallucisLongus. The iliopsoas "is responsible for hip flexion." Id., "Iliacus," https://www.physio-pedia.com/Iliacus.
In his September 21, 2019 functional assessment, Dr. Weiner opined (by checking boxes on the form) that plaintiff could stand or walk for less than one hour in an eight-hour work day; could sit for less than two hours in an eight-hour work day; could lift or carry less than five pounds; and could only "occasionally" (one-third of the work day) use his upper extremities to reach overhead, forward or laterally, or handle, finger, and feel. (R. 337.) Dr. Weiner added that plaintiff would have to lie down during the work day; would require a sit-stand option and frequent breaks during the day; would have difficulty concentrating on his work; would take an average of two or more sick days a month; would suffer pain which prevented him from performing eight hours of work; would require "medications that interfere with [his] ability to function"; and had (unspecified) environmental restrictions "due to limitations or sensitivity." (R. 338.)
On March 25, 2019, at the SSA's request, plaintiff underwent a consultative internal medicine examination performed by Justin Porto, M.D. (R. 327-31.) Plaintiff told Dr. Porto that he had hip and back pain, but was "currently denying any neck pain." (R. 327.) He said he did not do any cooking, cleaning, laundry, or shopping, but was "involved in childcare five days a week" and "goes out for his appointments." (R. 328.) On examination, Dr. Porto found that plaintiff had a "slow, antalgic gait," but used no assistive devices and needed no help changing or managing the exam table. (R. 328-29.) He rose from his chair by "pushing off the arms." (R. 329.) Plaintiff had limited ROM in the cervical and lumbar spine, right hip, and right knee, but his SLR test was "negative bilaterally," he had full ROM of his shoulders and upper extremities, full strength in both the upper and lower extremities, "intact" hand and finger dexterity, and full grip strength bilaterally. (R. 329-30.) Dr. Porto opined that plaintiff had "mild to moderate limitations for prolonged standing, sitting, or walking," "moderate limitations for squatting and kneeling," and "marked restrictions for heavy lifting." (R. 330.)
Plaintiff also underwent a consultative psychiatric evaluation, performed by Alex Gindes, Ph.D., on March 25, 2019. (R. 322-25.) Since plaintiff had not claimed any psychiatric impairments in his DIB application and had never sought any psychiatric treatment, he "questioned the purpose of our exam." (R. 323.) Dr. Gindes did not identify any "psychological difficulties" or "psychiatric problems" and did not make any mental health diagnoses. (R. 324-25.)
On April 4, 2019, state agency reviewer M. Vasquez-Gonzalez, M.D. assessed plaintiff's physical functioning based on the record to date. (R. 86-88.) Dr. Vasquez-Gonzalez made an administrative finding that plaintiff could stand or walk for a total of two hours in an eight-hour work day; could sit for "about 6 hours" in an eight-hour work day, with "normal breaks"; could lift or carry up to ten pounds; was otherwise unlimited as to pushing or pulling; but could never climb ramps, stairs, ladders, ropes, or scaffolds, and could only occasionally balance, stoop, kneel, crouch, or crawl. (R. 85-86.) Dr. Vasquez-Gonzalez's assessment was "affirmed as written" on May 5, 2016, by T. Schmidt-Deyoung, M.D. (R. 94.)
III. THE HEARING
On November 7, 2019, plaintiff appeared, with counsel, before ALJ Stacchini. The ALJ also took testimony from vocational expert (VE) Linda Stein. (R. 32.)
Plaintiff testified that he drove, shopped at a nearby supermarket, took his daughter (then nine years old) to school in the morning and (if his wife wasn't home) to extracurricular activities after school, prepared lunch for his daughter, loaded the dishwater, and performed other "light cleaning" that did not require bending down. (R. 36-40.) He received visits from his family and occasionally visited them in New Jersey, but his wife did the driving on these trips because "[i]t's close to a two-hour drive," which is "too long for me to drive." (R. 38.) Plaintiff further attested that after the 2008 accident, he returned to desk duty for the police department, answering phones and taking reports, and performed that job for about three years. (R. 40.)
Plaintiff explained that he performed physical therapy exercises at home and took "a lot of medication," but had not gotten any injections in the past couple of years because "[t]hey don't last too long." (R. 41.) He testified that both Dr. Weiner and his previous doctor recommended that he get lower back surgery for "two bulging discs," but that he was too "afraid to do it." (R. 43-44.) Plaintiff reported that his back pain affected his ability to "bend down" and "move," and bothered him at night. (R. 44.) If he moved the wrong way, the pain would "radiate from my lower back down to the back of my foot, and the back of my leg on the right side, and sometimes it knocks me down to the floor." (R. 45.) He had no problems reaching his arms forward or over his head, and no problems using his hands - either for grasping or for fine manipulation - but his right knee "still hurts" and "swells up every now and then." (Id.)
Plaintiff testified that he had problems with sitting because his "hip locks, and it starts to hurt," requiring him to "get up to stretch out" after 30 or 35 minutes (R. 46.) Asked about other conditions "that we haven't discussed," plaintiff did not identify any. (R. 46-47.) He denied side effects from his medications, except that when he took Tramadol (a prescription NSAID) at night, "I sleep more solid through the night," and "it's kind of hard to get up" in the morning. (R. 47.)
Under questioning by his own attorney about the years he spent on desk duty at the police department, plaintiff testified that during that period he had trouble sitting for a long time, "same as now," which the department accommodated by permitting him to "work in plainclothes" and take breaks every hour. (R. 48.)
Plaintiff brought a cane to the hearing. (R. 49.) He testified that he had been using the cane since the 2008 accident, "on and off," and had also been "limping ever since the accident." (Id.)
VE Stein then testified, in response to a hypothetical question from the ALJ, that a claimant with plaintiff's age, education, and work experience, who was capable of performing "the full range of sedentary work" but could only occasionally climb ramps and stairs, could never climb ladders, ropes, or scaffolds, and could occasionally balance, stoop, kneel, crouch, and crawl, could perform plaintiff's past work as a police clerk. (R. 52-53.) VE Stein went on to testify that the same claimant could perform various unskilled jobs at the sedentary level, such as addresser of envelopes, surveillant-system monitor, and telephone order clerk. (R. 54.) Under questioning from the ALJ, the VE added that the hypothetical claimant could still perform those jobs if he needed to "alternate from a sitting position after 30 minutes," was "off task for up to five percent of the workday," and needed a cane to walk more than one block. (R. 54-55.)
IV. THE ALJ's DECISION
ALJ Stacchini issued his Decision on January 9, 2020. Before undertaking the five-step analysis mandated by 20 C.F.R. § 404.1520(a)(4)(i)-(v), the ALJ found that plaintiff met the insured status requirements of the Act through March 31, 2021. (R. 15.)
At step one of the five-step analysis, see 20 C.F.R. § 404.1520(a)(4)(i), the ALJ found that plaintiff has not engaged in substantial gainful activity since July 28, 2017. (R. 15-16.) At step two, see 20 C.F.R. § 404.1520(a)(4)(ii), the ALJ found that plaintiff has the "severe" impairments of degenerative disc disease with cervical and lumbar radiculopathy, right knee derangement/dysfunction, and "status-post right femoral open reduction and internal fixation surgery." (R. 16.) However, at step three, see 20 C.F.R. § 404.1520(a)(4)(iii), the ALJ found that none of them, individually or in combination, "meets or medically equals the severity of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]" (R. 17.)
Plaintiff does not challenge the ALJ's findings at steps one through three.
Before proceeding to step four, the ALJ found plaintiff had the residual functional capacity (RFC) to perform sedentary work as defined by 20 C.F.R. § 404.1567(a), with additional restrictions, as follows:
"Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 404.1567(a).
[H]e can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, but can never climb ladders, ropes or scaffolds. He must be permitted to alternate from a seated position after thirty minutes and would be expected to be off-task for up to 5% of the workday in addition to his regularly scheduled breaks, which consist of two fifteen-minute breaks, one in the morning and one in the afternoon, and a mid-day break consisting of thirty to sixty minutes. The claimant must be permitted to use a cane for prolonged ambulation defined as being greater than one block and while on uneven terrain.(R. 17-18.)
In the course of developing plaintiff's RFC, the ALJ considered Dr. Weiner's September 21, 2019 functional assessment and his October 1, 2019 narrative report, but found them "not persuasive," because they were "not well-supported by the longitudinal medical evidence of record" or consistent with "the claimant's reported activity level as discussed herein," and were "not supported by the objective imaging, which documents non-severe findings." (R. 20-21.)
The ALJ also considered, and found "partially persuasive," Dr. Porto's March 25, 2019 opinion, because it was "rendered following an in-person examination of the claimant," and the "exertional and postural limitations were supported by the medical evidence of record." (R. 22.) However, the ALJ noted, Dr. Porto did not "specifically define what he meant by the terms 'prolonged' or 'heavy lifting,'" and "failed to specifically state his opinions on the claimant's ability to perform work-related tasks on a sustained and consistent basis during a normal eight-hour-workday." (Id.)
The ALJ found the May 4, 2019 opinion of Dr. Vasquez Gonzalez and the May 6, 2019 opinion of Dr. Schmidt-Deyoung "persuasive," because they were "generally consistent with and supported by the longitudinal medical evidence of record and with the claimant's reported activity level as discussed herein," as well as being "generally consistent with the opinions and physical exam findings of Dr. Porto[.]" (R. 23.)
At step four, see 20 C.F.R. § 404.1520(a)(4)(iv), the ALJ found that plaintiff could perform his past relevant work as a police clerk, and at step five, see 20 C.F.R. § 404.1520(a)(4)(v), he determined, based on VE Stein's expert testimony at the hearing, that plaintiff could also perform the sedentary occupations of addresser of envelopes, surveillance system monitor, and telephone order clerk. (R. 23-24.) The ALJ concluded that plaintiff was not under a disability, as that term is used in the Act, from July 28, 2017 through the date of the Decision. (R. 25.)
V. THE PARTIES' POSITIONS
Plaintiff argues principally that the ALJ failed to properly evaluate the medical opinion evidence in the record. Pl. Mem. (Dkt. No. 34) at 16-25. In particular, plaintiff contends that the ALJ failed to identify any "genuine inconsistencies between Dr. Weiner's findings and the remainder of the record," id. at 19; that the ALJ "was in no position" to evaluate plaintiff's lumbar spine MRI or other imaging studies, id. at 21; and that plaintiff's activities of daily living do not show that he could "meet the sustained demands of competitive employment." Id. at 22; see also Pl. Rep. Mem. (Dkt. No. 35) at 4-5. Plaintiff further contends that the ALJ should have sought clarification from Dr. Porto regarding his opinion (because he did not define what he meant by "prolonged" or "heavy") and that the "ambiguity" in Dr. Porto's opinion "extends further" to the opinions of the state agency reviewers, Dr. Vasquez Gonzalez and Dr. Schmidt-Deyoung, because they relied in part on Dr. Porto's report. Pl. Mem. at 23-25; Pl. Reply Mem. at 2.
The Commissioner argues that "substantial evidence supports the Commissioner's final decision," see Def. Mem. (Dkt. No. 31) at 9; that the ALJ properly assessed the medical opinions in the record, including Dr. Weiner's, id. at 9-19; and the plaintiff's remaining arguments "are without merit." Id. at 19-20.
Although I do not accept every point made in the Commissioner's brief, I agree that the Decision was free of legal error requiring remand and supported by substantial evidence.
VL ANALYSIS
A. Standards
In considering the parties' motions, I have reviewed the entire administrative record (totaling 346 pages) and applied the familiar and frequently reiterated standards used by federal district courts to review decisions of the Commissioner. Generally speaking, a court may set aside an ALJ's decision only if it is based upon legal error or if the ALJ's factual findings are not supported by substantial evidence. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008); Conyers v. Comm'r of Soc. Sec., 2019 WL 1122952, at *11-13 (S.D.N.Y. Mar. 12, 2019); Rivera v. Comm'r of the Soc. Sec. Admin., 2020 WL 8167136, at *12-14 (S.D.N.Y. Dec. 30, 2020).
"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)). "In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Longbardi v. Astrue, 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009) (citing Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) and Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)). "However, the reviewing court's task is limited to determining whether substantial evidence exists to support the ALJ's fact-finding; it may not reweigh that evidence or substitute its judgment for that of the ALJ where the evidence is susceptible of more than one interpretation." Dubois v. Comm'r of Soc. Sec., 2022 WL 845751, at *4 (S.D.N.Y. Mar. 21, 2022). "[O]nce an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (emphasis in original) (quotation marks omitted). Thus, the substantial evidence standard is "a very deferential standard of review." Id.
A claimant's RFC is the "most [he] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a)(1). A claimant's RFC is based on all of the relevant medical and other evidence in the record, including his credible testimony, objective medical evidence, and medical opinions from treating and consulting sources. 20 C.F.R. § 404.1545(a)(3). Although necessarily informed by the medical evidence in the record, "[a]n RFC finding is administrative in nature, not medical, and its determination is within the province of the ALJ[.]" Curry v. Comm'r of Soc. Sec., 855 Fed.Appx. 46, 48 n.3 (2d Cir. 2021). The ALJ is responsible for deciding a claimant's RFC; in making that determination, the ALJ must consider all relevant medical and other evidence, including any statements about what the claimant can still do provided by any medical sources. See 20 C.F.R. §§ 404.1520c, 404.1545(a), 404.1546(c).
In evaluating a disability claim filed on or after March 27, 2017 - including the claim at issue here - the ALJ need not "defer" or "give any specific evidentiary weight, including controlling weight," to any medical opinion or prior administrative medical finding. 20 C.F.R. § 404.1520c(a). Rather, the ALJ must evaluate the "persuasiveness" of each opinion or finding in light of: (i) its "[s]upportability"; (ii) its "[c]onsistency"; (iii) the "[r]elationship" between the medical source and the claimant; (iv) the source's "[s]pecialization" in a relevant medical field; and (v) "other factors that tend to support or contradict" the opinion or finding. 20 C.F.R. § 404.1520c(c)(1)-(5). Of these, the most important factors are "supportability" and "consistency." Id. § 404.1520c(b)(2); Rivera v. Comm'r of the Soc. Sec. Admin., 2020 WL 8167136, at *11 (S.D.N.Y. Dec. 30, 2020), report and recommendation adopted sub nom. Rivera v. Comm'r of Soc. Sec. Admin., 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021).
As to supportability, the regulations provide: "The 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." 20 C.F.R. § 404.1520c(c)(1). As to consistency: "The 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). The ALJ need not discuss all of the factors described in the regulations, but must, as to each opinion or prior administrative medical finding, "explain how [he or she] considered the supportability and consistency factors." Id. § 404.1520c(b)(2).
In weighing medical opinions, "[t]he ALJ is not permitted to substitute his own expertise or view of the medical proof for the treating physician's opinion or for any competent medical opinion." Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015). "Regardless of how many (or how few) medical source statements the ALJ receives, however - or the weight he assigns to them -the determination of the claimant's RFC is reserved to the ALJ, who is not required to accept, or follow, any one medical opinion." Dubois, 2022 WL 845751, at *4; see also Camille v. Colvin, 652 Fed.Appx. 25, 29 n.5 (2d Cir. 2016) (summary order) ("An ALJ may accept parts of a doctor's opinion and reject others."). "[I]t is the ALJ's prerogative to make an RFC assessment after weighing the evidence and the District Court may not reverse provided there is substantial evidence in the record to support her findings." Moronta v. Comm'r of Soc. Sec., 2019 WL 4805801, at *19 (S.D.N.Y. Sept. 30, 2019) (quoting Mitchell v. Astrue, 2010 WL 3070094, at *5 (W.D.N.Y. Aug. 4, 2010)) (alteration in original).
B. Dr. Weiner's Opinions
The ALJ did not err in concluding that Dr. Weiner's September 21, 2019 functional assessment and October 1, 2019 narrative opinion were "not persuasive" because they were "not well supported by the longitudinal evidence medical evidence of record" and inconsistent with plaintiff's own reported activity. (R. 20.) As the ALJ noted, portions of Dr. Weiner's opinions were also inconsistent with plaintiff's hearing testimony, and some of the examination findings discussed in his narrative report were "inconsistent with the other examinations found in evidence." (Id.)
To begin with, the ALJ properly rejected Dr. Weiner's conclusion that plaintiff was "totally disabled from all forms of employment, including sedentary work" (R. 340), because that determination is "reserved to the Commissioner." (R. 20.) See 20 C.F.R. § 404.1527(d) ("We are responsible for making the determination or decision about whether you meet the statutory definition of disability. In so doing, we review all of the medical findings and other evidence that support a medical source's statement that you are disabled. A statement by a medical source that you are ‘disabled' or ‘unable to work' does not mean that we will determine that you are disabled."); Schillo v. Kijakazi, 31 F.4th 64, 70 (2d Cir. 2022) (“The ultimate finding of whether the claimant is disabled is reserved to the agency[.]”).
Nor did the ALJ err in finding that Dr. Weiner's opinions were "not well supported[.]" (R. 20, 21.) Supportability "has to do with the fit between the medical opinion offered by the source and the underlying evidence and explanations 'presented' by that source to support [his] opinion." Rivera, 2020 WL 8167136, at *16 (S.D.N.Y. Dec. 30, 2020); see also Herrera v. Comm'r of Soc. Sec., 2021 WL 4909955, at *10 (S.D.N.Y. Oct. 21, 2021) (denying plaintiff's remand motion where the ALJ found "unpersuasive" a treating source's assessment that "lacked narrative and corresponding treatment records to support or link the severe functional limits [the source] assessed"). Here, as the ALJ correctly noted, many of the statements made in Dr. Weiner's October 1, 2019 narrative report (which according to the report itself reflected an examination performed eighteen months earlier, on April 18, 2018) were not documented in his own treatment records -or those of other providers in his practice. Among the findings that appear nowhere else in the records of Total Body Orthopedics & Rehabilitation are that plaintiff was experiencing pain on left side and a hip hike on the left; that he required a straight cane for ambulation; that he had "cognitive deficits," short term memory problems, and trouble concentrating; that he had atrophy of the right hip girdle and weakness in various hip and leg muscles; and that he had paresthesias and numbness in the hands, causing him to drop objects and experience difficulty using a keyboard or writing. (R. 339-40.)
On April 11, 2019, NP Bland found that plaintiff had a hip hike on the right. (R. 344.)
On October 15, 2018, NP Bland found that plaintiff had full strength in all lower extremities. (R. 312.)
I note as well that there is no support in the record (not even in the October 1, 2019 narrative report) for Dr. Weiner's assertion, in his September 21, 2019 functional assessment, that plaintiff had (unspecified) "environmental restrictions due to limitations or sensitivity." (R. 338.)
Similarly, the ALJ was entitled to conclude that Dr. Weiner's narrative report and functional assessment were "inconsistent with other evidence" in the record, including the examination conducted by Dr. Porto, plaintiff's MRIs and X-rays, and plaintiff's hearing testimony. (R. 20.) Consistency "is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record." Vellone v. Saul, 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021), report and recommendation adopted, 2021 WL 2801138 (July 6, 2021); accordBalotti v. Comm'r of Soc. Sec., 2022 WL 1963657, at *4 (S.D.N.Y. June 6, 2022); see generally 42 U.S.C. § 423(d)(5)(B) (requiring the ALJ to base her decision on "all the evidence available in the [record]"). Here, as ALJ Stachinni noted (R. 20), there is a sharp inconsistency between Dr. Weiner's opinion that plaintiff had significant limitations for the use of his upper extremities (R. 337) and plaintiff's hearing testimony:
Dr. Porto found, among other things, that plaintiff had low back, right hip, and right knee pain, but no neck pain; that his SLR test was negative bilaterally; and that he had full (5/5) strength in the upper and lower extremities with "[n]o muscle atrophy." (R. 329-30.)
Plaintiff argues that the ALJ improperly relied on his own lay opinion when he wrote (R. 20) that plaintiff's MRIs and X-rays "document[] non-severe findings." Pl. Mem. at 20. The applicable regulations, however, require the ALJ to consider the "objective medical evidence," along with the rest of the record, both in assessing expert opinions and in formulating the claimant's RFC. See 20 C.F.R. §§ 404.1520c(c)(1), 404.1545(a)(3). Because the ALJ was required to consider whether Dr. Weiner's opinions were consistent with "the entire record," Vellone, 2021 WL 319354, at *6, plaintiff's argument that in so doing it was error for him to characterize plaintiff's lumbar MRI findings as "non-severe" or "mild" (R. 21) is unavailing. See Curry, 855 Fed.Appx. at 48 n.3 (ALJ does not inappropriately rely on lay opinion by reconciling evidentiary conflicts when considering "the medical and other relevant evidence in the record in its totality") (emphasis added); DuBois, 2022 WL 845751, at *8 (ALJ did not err in relying on, inter alia, plaintiff's "consistently normal mental status exams" when analyzing supportability and consistency of medical opinions). Moreover, in this case the reporting radiologists - that is, the medical experts who prepared the imaging reports - characterized a number of their findings as "mild" (R. 316, 318), free of "abnormalities" (R. 316), and/or "unremarkable." (R. 319.)
Q. D[o] you have any problems reaching your arms out in front of you, or over your head?
A. No, not really.
Q. Do you have any problems with your hands?
A. No.
Q. You don't have any problems just grasping, which would be like just kind of handling like a coffee mug, or fine manipulation, which would be, you know, like picking up a quarter, or a paperclip, you don't have any problems with your hands doing those kinds of activities?
A. No, sir.(R. 45.) Dr. Weiner's opinion on this issue is also inconsistent with Dr. Porto's finding, on examination, that plaintiff's hand and finger dexterity were intact and his grip strength was "5/5 bilaterally." (R. 330.)
Similarly, Dr. Weiner's views regarding plaintiff's cognitive deficits and memory problems, as well as his formal assessment that plaintiff "would have difficulty concentrating" on work (R. 338), are notably inconsistent with the rest of the record. No other examiner so much as suggested that plaintiff had any cognitive or mental impairments. To the contrary: Dr. Gindes, a psychologist, found that plaintiff's attention and concentration were intact; that he could perform simple calculations and serial 7s, and that his "[r]ecent and remote memory skills were also intact." (R. 323.) Thereafter, at the hearing, neither plaintiff nor his attorney mentioned problems with attention, concentration, memory, or any other area of mental functioning.
Dr. Weiner's opinions were also somewhat inconsistent with the findings of his colleagues at Total Body Orthopedics & Rehabilitation that plaintiff's non-narcotic medications "provided appropriate relief" (R. 313-14, 345) and "helped [plaintiff] be more active," with no side effects (R. 313-14), and with the evidence concerning plaintiff's regular activities, which include childcare, taking his daughter to school and (sometimes) to afterschool activities, shopping, light household chores (that do not require bending), driving (short distances), walking (with or without a cane), personal grooming, and performing home physical therapy exercises. (R. 36-38.) While these activities, standing alone, may not "demonstrate the ability to meet the sustained demands of competitive employment," Pl. Mem. at 22, the ALJ did not rely on them for that purpose. Rather, he considered plaintiff's ADLs, as permitted by the applicable regulation, when comparing Dr. Weiner's opinions with "evidence from other medical sources and nonmedical sources." 20 C.F.R. § 404.1520c(c)(2) (emphasis added). This was not error. See Medina v. Comm'r of Soc. Sec., 831 Fed.Appx. 35, 36 (2d Cir. 2020) (even under prior "treating physician rule," ALJ permissibly afforded Dr. Shah's opinion "little weight" after noting that his "assessment of [plaintiff's] limitations was inconsistent with Shah's own treatment notes and [plaintiff's] self report of her activities of daily living."); Curry, 855 Fed.Appx. at 48-49 (ALJ was entitled to discount treating physician's opinion as inconsistent with plaintiff's "own statements and record of independent activities," among other things); Melendez v. Comm'r of Soc. Sec., 2022 WL 912928, at *7 (S.D.N.Y. Mar. 28, 2022) (ALJ "appropriately considered plaintiff's activities of daily living . . . including personal care, cooking, laundry, travel on public transportation, walking (up to three blocks, according to plaintiff's testimony), and shopping unassisted," in determining that treating source's opinion was not persuasive); Villalobo v. Saul, 2021 WL 830034, at *13 (S.D.N.Y. 2021) ("[T]he ALJ acted appropriately in affording Dr. Marrero-Figarella's opinion less weight because, as the ALJ explained, it was inconsistent with both Plaintiff's self-reported activities of daily living and the treatment records.").
Having properly analyzed both supportability and consistency, the ALJ did not err in determining that Dr. Weiner's opinions were not persuasive.
C. Dr. Porto's Opinion
Nor did the ALJ err in failing to seek "clarification from [consultative examiner] Dr. Porto," in regard to what he meant by "prolonged" and "heavy lifting." Pl. Mem. at 23. The ALJ found Dr. Porto's opinion only "partially persuasive" (R. 22), precisely because he did not "specifically define" these terms. (Id.) This defect, however, did not diminish the reliability of Dr. Porto's objective findings or diagnoses, nor the persuasiveness of the prior administrative findings by Dr. Vasquez-Gonzalez and Dr. Schmidt-Deyoung, who were also entitled to rely on Dr. Porto's objective findings and diagnoses, along with the remaining medical evidence in the record.
"The duty to recontact [a medical source] arises only if the ALJ lacks sufficient evidence in the record to evaluate the doctor's findings[.]" Guillen v. Berryhill, 697 Fed.Appx. 107, 108 (2d Cir. 2017). Conversely, "where there are no obvious gaps in the administrative record, and where the ALJ already possesses a complete medical history, the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim." Rosa v. Callahan, 168 F.3d 72, 79 n. 5 (2d Cir. 1999); see also Janes v. Berryhill, 710 Fed.Appx. 33, 34 (2d Cir. 2018) (ALJ is "not required to develop the record any further when the evidence already presented is 'adequate for [the ALJ] to make a determination as to disability'") (quoting Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996)); McMillian v. Comm'r of Soc. Sec., 2022 WL 457400, at *4 (S.D.N.Y. Feb. 15, 2022) (ALJ was not "obligated to contact Dr. Oshidar to understand what was meant by the lifting restriction of 'a grocery bag' when "the evidence already presented is adequate for [the ALJ] to make a determination as to disability") (cleaned up). Here, the ALJ had an adequate record - both medical and non-medical - upon which to evaluate the opinion evidence presented to him and determine the plaintiffs RFC.
D. Substantial Evidence
The district court must uphold an ALJ's RFC determination and ultimate disability decision if it is supported by substantial evidence, even if there is also substantial evidence to support the plaintiff's claim of disability. See, e.g., Bonet ex rel. T.B. v. Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013) (summary order) ("[W]hether there is substantial evidence supporting the appellant's view is not the question here; rather, we must decide whether substantial evidence supports the ALJ's decision.") (emphasis in the original.); Blalock v. Berryhill, 2018 WL 6332896, at *14 (S.D.N.Y. Nov. 8, 2018) ("[T]he existence of contrary evidence does not negate substantial evidence supporting the ALJ's decision.").
In this case, the substantial evidence test is met. The ALJ's RFC formulation is supported by the opinions of Dr. Vasquez-Gonzalez and Dr. Schmidt-Deyoung, portions of Dr. Porto's report, imaging studies containing generally mild findings, and the results of multiple physical examinations. The exams were broadly consistent with plaintiff's claims of low back, right hip, and right knee pain ("appropriately" relieved by non-narcotic medications), but most of them also found that he had no upper-body limitations, normal strength and reflexes throughout the lower body, with no muscle atrophy, and that he could walk (at least for short distances) without a cane. The ALJ's conclusion is also supported by the evidence regarding plaintiff's ADLs and his testimony at the hearing, during which he discussed his back, hip, and knee impairments, confirmed that he had no upper-body limitations (R. 48), and testified that he held a desk job for approximately three years after his 2008 accident, notwithstanding that his back and hip impairments were the "same as now." (R. 48.) Moreover, although the ALJ did not credit all of the restrictions in Dr. Weiner's narrative report and functional assessment, he wrote many of them into his RFC formulation by limiting plaintiff to "less than the full range of sedentary work with a sit/stand option, and postural limitations to accommodate his ongoing symptoms." (R. 22.)
To be sure, there is some evidence in the record that would support the conclusion that plaintiff had greater limitations than those the ALJ described. But that is not the test. "If the reviewing court finds substantial evidence to support the Commissioner's final decision, that decision must be upheld, even if substantial evidence supporting the claimant's position also exists." Johnson v. Astrue, 563 F.Supp.2d 444, 454 (S.D.N.Y. 2008). Having found that the ALJ's decision was supported by substantial evidence, I am required, under the "very deferential standard of review" that applies to ALJ fact-finding, Brault, 683 F.3d at 448, to accept the Commissioner's RFC determination, and thus, in this case, his ultimate determination that plaintiff is not disabled within the meaning of the Act.
VII. CONCLUSION
For the reasons set forth above, I recommend that plaintiff's motion (Dkt. No. 26) be DENIED, the Commissioner's motion (Dkt. No. 30) be GRANTED, and this action be dismissed.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Valerie E. Caproni at 40 Foley Square, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Caproni. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).