Opinion
20-CV-8523 (JPC) (OTW)
09-06-2022
RALEIGH POOLE BAKER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
To the Honorable JOHN P. CRONAN JUDGE
REPORT & RECOMMENDATION
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE
I. Introduction
On December 27, 2017, Plaintiff Raleigh Poole Baker filed a claim for Social Security Disability benefits (“SSD”). (Administrative Record, dated August 10, 2021, ECF 15, (R.”) 25). Plaintiff's request for SSD was denied on February 21, 2018. (R. 25). On March 10, 2018, Plaintiff filed a written request for a hearing, and on June 10, 2019, Plaintiff and his representative appeared before Administrative Law Judge (“ALJ”) Melissa Warner. (R. 25). At the hearing, Plaintiff amended his onset date to March 1, 2017. (R. 25). The ALJ issued a decision on September 4, 2019, finding that Plaintiff was not disabled and therefore not entitled to benefits. (R. 33). In the decision, the ALJ noted that Plaintiff has a severe impairment: diabetic neuropathy. (R. 32).
Plaintiff appealed to the Appeals Council, which denied review of the ALJ's decision on August 11, 2020. (R. 1). Plaintiff then appealed the ALJ's September 4, 2019 decision, alleging that the ALJ's decision was not supported by “substantial evidence.” (Complaint, ECF 1, ¶ 13). On October 18, 2020, this matter was referred to me for Report and Recommendation. The parties submitted a joint stipulation of facts detailing Plaintiff's medical history, the opinion evidence, and the administrative hearing testimony, which I incorporate by reference. (Joint Stipulation, dated January 5, 2022, ECF 22 (“Stip.”)).
For the reasons set forth below, I recommend that Plaintiff's Motion for Judgment on the Pleadings be GRANTED, the Commissioner's Cross Motion for Judgment on the Pleadings be DENIED, and that the case be remanded for further proceedings pursuant to 42 U.S.C. § 405(g).
II. Background
Plaintiff is a 46-year-old man who worked as a home health aide, a telemarketer, a resident care aid, and a reception clerk. (Stip. 2). Plaintiff reported on his Disability Report Form that he suffers from neuropathy and diabetes. (R. 186, Ex. 2E at 8). Plaintiff testified that because of his conditions, he suffers from nerve pain multiple times a day that prevented him from walking more than 300 feet at a time. (R. 54-56). He further testified that if he got up from bed to move around, his pain would flare up when he lay down again. (R. 64). He stated that he can only stand in one place for a few minutes at a time due to poor balance. (R. 56). He also stated that when he had to go to a medical appointment, he had increased, constant pain. (R. 64-66).
A. The ALI's Decision
The ALJ concluded that Plaintiff was not disabled under the Social Security Act. Specifically, the ALJ found that there was a continuous 12-month period during which the claimant did not engage in substantial gainful activity, and that Plaintiff suffers a severe impairment, diabetic neuropathy. (R. 27-28). ALJ Warner concluded that Plaintiff had the residual functional capacity (“RFC”) to perform light work, as defined in 20 C.F.R. § 404.1567(b) , except for: “occasional climbing stairs, balancing, and crouching; no crawling or climbing ladders, ropes and scaffolds; no operation of foot controls; and no exposure to obvious hazards or uneven floor surfaces.” (R. 28). The ALJ noted that Plaintiff's severe impairment of diabetic neuropathy could reasonably be expected to cause nerve pain that would last for up to hours at a time (R. 29), but ultimately concluded that Plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms were not “entirely consistent with the medical evidence and other evidence in the record.” (R. 29).
Light work means lifting and carrying 20 pounds occasionally and 10 pounds frequently. See 20 C.F.R. § 404.1567(b). It also generally requires standing/walking at least 6 hours a day and sitting the remainder of the day. See Social Security Ruling (“SSR”) 83-10 (1983 WL 31251).
III. Analysis
The ALJ incorrectly cited to and misinterpreted the Record, tainting her assessment of the medical opinion evidence with factual errors.
A. Applicable Law
When determining whether a claimant has a disability, the ALJ must follow a five-step sequential evaluation process. The initial burden lies on the claimant during the first four steps to prove that they are disabled. The burden shifts to the Commissioner on the final step of the process. First, the claimant must prove that they are not currently engaged in substantial gainful activity. Second, the claimant must prove that their impairment is “severe” and therefore significantly limits their physical and/or mental ability to perform basic work activities. Third, the claimant must prove that their impairment falls within one of the impairments listed in 20 C.F.R. Part 404, Subpart P, App. 1. Fourth, the claimant must prove that they are unable to meet the physical and mental demands of their previous employment. Once the Plaintiff has satisfied all four steps, the burden then shifts to the Commissioner. When assessing whether the claimant has a disability, the Commissioner must consider their residual functional capacity, age, education, past work experience, and whether they are capable of performing other work. 20 C.F.R. § 404.1520. Should the Commissioner prove that other work exists for the claimant, the claimant is provided with the opportunity to prove that they cannot perform that work.
For claims such as this one, filed on or after March 17, 2017, ALJs apply the new regulations in 20 C.F.R. §§ 404.1520c and 416.920c in lieu of applying the treating physician rule. See Acosta Cuevas, 2021 WL 363682, at *9 (collecting cases). Under the new regulations ALJs “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s).” 20 C.F.R. § 416.920c(a). Instead, ALJs “will articulate in [their] determination or decision how persuasive [they] find all of the medical opinions.” 20 C.F.R. § 416.920c(b). ALJs must consider all medical opinions and determine their respective persuasiveness considering: supportability; consistency; relationship of the medical source to the claimant; specialization; and “other factors.” 20 C.F.R. § 404.1520c(c)(1)-(5). The supportability and consistency factors are the “most important.” 20 C.F.R. § 416.920c(a). Accordingly, the regulations mandate that ALJs “will explain how [they] considered the supportability and consistency factors for a medical source's medical opinions.” 20 C.F.R. § 416.920c(b)(2) (emphasis added); Vellone v. Saul, No. 20-CV-261 (RA)(KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021), R. & R. adopted, 2021 WL 2801138 (S.D.N.Y. July 6, 2021) (“[I]n cases where the new regulations apply, an ALJ must explain his/her approach with respect to the first two factors when considering a medical opinion.”). “Supportability” is “the objective medical evidence and supporting explanations presented by a medical source.” 20 C.F.R. § 404.1520c(c)(1). “Consistency” refers to how the medical source's opinions compare with “evidence from other medical sources and nonmedical sources in the claim.” 20 C.F.R. § 404.1520c(c)(2). Although ALJs are only required to articulate their consideration of those two factors, ALJs must consider all five factors when determining a medical opinion's persuasiveness. 20 C.F.R. § 416.920c(c).
Additionally, it is well-settled that an “ALJ cannot arbitrarily substitute his own judgment for a competent medical opinion.” McBrayer v. Secretary of Health and Human Servs., 712 F.2d 795, 799 (2d Cir.1983); Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (“The 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.”).
“Where . . . an ALJ misreads a critical piece of evidence in the record and then relies on his error in reaching his opinion, the opinion cannot be said to be supported by ‘substantial evidence.'” Joseph v. Astrue, No. 06-CV-1356 (RMB) (DCF), 2007 WL 5035942, at *1 (S.D.N.Y. Dec. 28, 2007), R & R adopted, No. 06-CV-1356 (RMB) (DCF), 2008 WL 850158 (S.D.N.Y. Mar. 20, 2008). “In some cases where the ALJ bases his decision on a misinterpretation of the evidence, remand may be warranted to afford the ALJ with an opportunity to re-evaluate the plaintiff's claim in light of what the evidence actually reveals.” Id.
B. The ALJ Failed to Properly Evaluate Dr. Saba's Medical Opinion
Dr. Saba examined Plaintiff on January 10, 2018, and found weakness in his feet and legs. (R. 283, Ex. 3F at 3). She also found that Plaintiff displayed diminished ankle and knee reflexes bilaterally, and an inability to heel or toe walk. (R. 283, Ex. 3F at 3). Dr. Saba reviewed an NCS/EMG performed that day that was consistent with diabetic distal symmetric polyneuropathy, and recommended physical therapy. (R. 283, Ex. 3F at 3). Dr. Saba again saw Plaintiff on April 11, 2018, during which she noted some improvements in Plaintiff's condition as a result of his physical therapy. (R. 314, Ex. 6F at 11). In a Multiple Impairment Questionnaire dated April 13, 2018, Dr. Saba reported treating Plaintiff every 2-3 months since November 2017 for diabetic polyneuropathy and a gait impairment. (R. 316-320, Ex. 7F). She found that Plaintiff's primary symptoms were weakness and sensory loss of the feet and legs, as well as imbalance. (R. 317, Ex. 7F at 3). She noted that his pain was in his “feet and legs” and that the frequency of the pain was described as “daily/constant” and became worse with sitting, lying, and walking. (R. 317, Ex. 7F at 3). Dr. Saba opined that Plaintiff was able to sit 4 to 5 hours total and stand 1 to 2 hours total in an 8-hour workday, and that he could lift/carry 5 pounds and occasionally 10 pounds. (R. 318, Ex. 7F at 4). She assessed that his pain, fatigue, or other symptoms were “frequently” severe enough to interfere with attention and concentration. (R. 319, Ex. 7F at 5). She assessed that Plaintiff would be absent less than once a month. (R. 320, Ex. 7F at 6).
Dr. Saba is a neurologist with a sub-specialty in neuromuscular medicine. (Stip. 4 n. 11).
Dr. Saba completed a second Multiple Impairment Questionnaire on June 11, 2018, in which she opined that Plaintiff could sit for four hours in an 8-hour workday and stand/walk for 2 hours. (R. 332). She also opined that when sitting, he needed to get up and move around every 30 minutes and not sit again for 5-10 minutes. (R. 332). She further opined that Plaintiff could only occasionally lift/carry 5 pounds and never lift/carry 10 pounds. (R. 332). She now found that Plaintiff had manipulative limitations bilaterally in all areas of reaching and handling and that he required 5-10 minute breaks every 30 minutes. (R. 333). She further opined that Plaintiff would be absent two to three times a month, and that while her medical opinion described Plaintiff over the past five years, his condition was worsening. (R. 334).
The ALJ discounted Dr. Saba's two opinions because she found that they were “just two months apart and are very different with no corresponding event or findings on examination during that period to account for changes in ability.” (R. 31). She also found the opinions “inconsistent with Dr. Saba's own treatment notes that document no symptoms in the upper extremities and only occasional twinges of pain.” (R. 31).
The ALJ did not properly address the supportability and consistency factors required under 20 C.F.R. § 404.1520c. She did not provide an explanation for finding Dr. Saba's April and June 2018 opinions “very different” when Plaintiff's physical exam and EMGs supported Dr. Saba's findings. (R. 316, 320, 30, and 334). Every doctor in the record found that Plaintiff has diabetic neuropathy, and those who examined the Plaintiff agreed to the objective findings of sensory loss in his feet and legs. (See R. 283, Ex. 3F at 3, 6-7; R. 297, Ex. 5F at 2; R. 352, Ex. 11F at 5, 9, 13). The inconsistencies in Dr. Saba's opinions seem to relate to Plaintiff's fine motor skills in his hands, not to the neuropathy in his lower limbs, which form the crux of Plaintiff's disability claim. Indeed, the ALJ's findings of inconsistency in Dr. Saba's opinions rested on her conclusion that Dr. Saba's treatment notes documented no symptoms in the upper extremities. (R. 31). The ALJ's focus on mild and/or a lack of symptoms in the upper body prevented her from considering the sensory loss in Plaintiff's feet and legs, an opinion shared by multiple doctors throughout the record. (See R. 286-287; 492; 352; 292-293). When considering a medical opinion, the ALJ must “articulate how [he or she] considered the medical opinions and how persuasive [he or she] find[s] all of the medical opinions.” White v. Comm'r of Soc. Sec., No. 20 CIV. 6222 (SLC), 2022 WL 951049, at *6 (S.D.N.Y. Mar. 30, 2022) (internal citations and quotation marks omitted) (remanding where ALJ failed to sufficiently explain basis for adopting one medical opinion while rejecting three other opinions). Because the ALJ did not adequately consider the consistency of Dr. Saba's opinions with similar findings in the treatment record, remand is warranted.
C. The ALJ did Not Properly Evaluate Plaintiff's Subjective Statements
The ALJ found that Plaintiff's “medically determinable impairments could reasonably be expected to cause some of the alleged symptoms” but found Plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms “not entirely consistent with the medical evidence and other evidence in the record. . .” (R. 29). Specifically, the ALJ noted that Plaintiff's condition had improved with treatment. (R. 29). She also found it significant that Plaintiff is able to engage in some daily activities. (R. 30). The ALJ erred by concluding that Plaintiff's positive response to treatment did not support a finding of disability. An individual's allegations cannot be rejected “because the available objective medical evidence does not substantiate [the claimant's] statements.” 20 C.F.R. § 404.1529(c)(2). Moreover, the ALJ failed to explain how Plaintiff's daily activities contradict a finding of disability. A “claimant's participation in the activities of daily living will not rebut his or her subjective statements of pain or impairment unless there is proof that the claimant engaged in those activities for sustained periods of time comparable to those required to hold a...job.” Page v. Colvin, No. 15-CV-792, 2015 WL 9660016 *5 (S.D.N.Y. Dec. 10, 2015) (internal quotation marks omitted); Feliz v. Kijakazi, No. 20-CV-9355 (JLC), 2022 WL 2900797, at *13 (S.D.N.Y. July 22, 2022) (finding that ALJ erred in concluding that claimant's ability to take walks, clean her house, and help her children discredited a finding of disability). Indeed, the Commissioner's own briefing acknowledges that Plaintiff's sensory loss was impeding his walking abilities. (Stip. 30).
IV. Conclusion
Accordingly, I recommend that Plaintiff's Motion for Judgment on the Pleadings be GRANTED, and the Commissioner's Motion for Judgment on the Pleadings be DENIED. I further recommend that the Court remand the case for further administrative review, including but not limited to a de novo hearing and a new decision.
V. Objections
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days (including weekends and holidays) from service of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable John P. Cronan, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Cronan.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. (See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983)).