Opinion
17cv8433 (AT) (DF)
02-19-2019
DIANE L. BAKER, Plaintiff, v. NANCY A. BERRYHILL Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
TO THE HONORABLE ANALISA TORRES, U.S.D.J.:
In this action, plaintiff Diane L. Baker ("Plaintiff"), through counsel, seeks review of the final decision of the Acting Commissioner of the Social Security Administration ("SSA") ("Defendant" or the "Commissioner"), denying Plaintiff disability insurance benefits under Title II of the Social Security Act (the "Act") on the ground that she was not disabled under the Act. Although Plaintiff has not specified the authority for the motion she has now filed, this Court assumes that she is moving pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings reversing the administrative decision of the Commissioner or, in the alternative, remanding the decision for a new hearing. Defendant has cross-moved under Rule 12(c), for judgment on the pleadings affirming that decision.
For the reasons set forth below, I respectfully recommend that Plaintiff's motion (Dkt. 15) be granted to the extent that the case is remanded for reconsideration, and that Defendant's cross-motion (Dkt. 19) be denied.
BACKGROUND
The background facts set forth herein are taken from the Social Security Administration ("SSA") Administrative Record (see Dkts. 11, 14) (referred to herein as "R." or the "Record").
Plaintiff initially applied for disability insurance benefits on August 1, 2014, alleging disability under the Act as of October 10, 2013, based on depression, fibromyalgia, migraines, ADHD, irritable bowel syndrome, "[s]pine and joint pain weakness and degeneration," and PTSD. (R. at 99.) The application was denied (id. at 98), and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). ALJ Robert Gonzalez held two hearings in White Plains, New York. The first hearing was held on October 25, 2016 (id. at 75-97), but was adjourned for production of a medical expert. At the second hearing, held on January 13, 2017 (id. at 47-72), the ALJ heard testimony from Plaintiff, as well as from medical expert Dr. Arthur Lorber (an orthopedic surgeon), and vocational expert ("VE") Esperanza DiStefano. On February 28, 2017, ALJ Gonzalez rendered a decision unfavorable to Plaintiff, finding that, although Plaintiff was severely impaired, she had retained the residual functional capacity ("RFC") to perform "sedentary work" pursuant to 20 C.F.R § 404.1567(a), with certain limitations, and therefore had not been disabled from October 10, 2013 (the alleged onset date ("AOD") of her disability) through December 31, 2015 (the date she was last insured). (Id. at 10-24.) The Appeals Council denied Plaintiff's request for review on September 21, 2017. (Id. at 1-6.) Thereafter, ALJ Gonzalez's decision became the final decision of the Commissioner.
Fibromyalgia is "a disorder characterized by widespread musculoskeletal pain accompanied by fatigue, sleep, memory and mood issues. Researchers believe that fibromyalgia amplifies painful sensations by affecting the way [the] brain processes pain signals." Fibromyalgia, https://www.mayoclinic.org/diseases-conditions/fibromyalgia/symptoms-causes/syc-20354780
ADHD (attention-deficit/hyperactivity disorder) "is a disorder that makes it difficult for a person to pay attention and control impulsive behaviors." Attention-Deficit/Hyperactivity Disorder (ADHD): The Basics, https://www.nimh.nih.gov/health/publications/attention-deficit-hyperactivity-disorder-adhd-the-basics/index.shtml
PTSD (post-traumatic stress disorder) is a disorder that develops when an individual has experienced a shocking, scary, or dangerous event, causing a fear trigger in the body to help defend against danger. Post-Traumatic Stress Disorder, https://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd/index.shtml
A. Plaintiff's Personal and Employment History
Plaintiff was 46 years old, single, and with two young children when she allegedly became disabled. (Id. at 77, 99.) According to Plaintiff's disability application, she had run her own business from October 1999 through August 2014. (See id. at 234, 235.) In addition, from 2002 through 2006, she had worked as a "flagger" for repairing bridges, and from 1985 through 1996, she had worked as a hair dresser. (Id. at 84, 235.)
B. Medical Records
As Plaintiff reported that her disability began on October 10, 2013, the relevant period under review runs from that date until December 31, 2015, the date when Plaintiff was last insured. See 42 U.S.C. §§ 423(a)(1), (c)(1); 20 C.F.R. §§ 404.130, 404.315(a); Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989).
"An applicant's 'insured status' is generally dependent upon a ratio of accumulated 'quarters of coverage,'" i.e., quarters in which the applicant earned wages and paid taxes, "to total quarters." Arnone, 882 F.2d at 37-38. To qualify for SSDI, "Plaintiff's disability onset date must fall prior to his date last insured." Camacho v. Astrue, No. 08-CV-6425, 2010 WL 114539, at *2 (W.D.N.Y. Jan. 7, 2010) (citing Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)); 20 C.F.R. § 404.315(a).
1. Medical Evidence Within the Relevant Period
During the relevant period, the medical evidence of record consists of treatment records and other information submitted by Plaintiff's treating sources, as well as reports of examining and non-examining medical consultants. The most relevant of this medical evidence regarding Plaintiff's physical and mental impairments is detailed below.
a. Physical Impairments
i. St. Peter's Health Partners Shelly M. Gilbert (Physician's Assistant), and Lauren Lundy (Nurse Practitioner)
It appears from the Record that, during the relevant period, St. Peter's Health Partners ("St. Peter's") served as Plaintiff's primary medical care provider. On January 27, 2014, a little over three months after the claimed onset of Plaintiff's disability, she was seen at St. Peter's by Shelley M. Gilbert, a physician's assistant ("PA"). PA Gilbert noted Plaintiff's complaints of "a significant migraine, brought on by chronic neck pain," nausea, GERD (i.e., gastroesophageal reflux disease), anxiety, and chronic pain. (Id. at 462.) PA Gilbert also noted that Plaintiff was experiencing an increase in anxiety and depression. (Id.) She assessed Plaintiff, at that time, with depressive disorder, chronic back pain, and fibromyalgia. (Id.) Upon a review of systems, PA Gilbert noted positive responses for headache, anxiety, depression, joint pain, and joint swelling. (Id. at 464.) Physical examination results, however, were generally unremarkable. (Id. at 464-65.)
Gastroesophageal reflux disease is "when stomach acid frequently flows back into the tube connecting [an individual's] mouth and stomach." Gastroesophageal reflux disease, https://www.mayoclinic.org/diseases-conditions/gerd/symptoms-causes/syc-20361940
Chronic pain, "as opposed to acute pain, is persistent pain lasting for one month or longer. It is considered a health condition in itself. The cause may not be known, and it can occur without an indication of an injury or illness." Understanding pain, https://www.mayoclinic.org/understanding-pain/art-20208632
On May 6, 2014, Plaintiff again saw PA Gilbert, who noted that Plaintiff had seen a psychiatrist, who had diagnosed her with bipolar depression and had prescribed Wellbutrin. (Id. at 457.) A review of systems indicated headache, "numbness in extremities," "decreased appetite," "back pain, joint pain, joint swelling, muscle weakness, neck pain," and "fatigue." (Id. at 458.) Physical examination resulted in normal findings, however, except that "soft tissue discomfort" at "18 total tender points" was noted. (Id. at 459.)
Wellbutrin (generic name bupropion hcl) is used to treat depression. It may work by helping to restore the balance of certain natural chemicals in the brain. Wellbutrin, https://www.webmd.com/drugs/2/drug-13509/wellbutrin-oral/details
On June 10, 2014, Plaintiff returned to PA Gilbert for a follow-up examination after having been prescribed oxycodone. PA Gilbert noted that Plaintiff's chronic pain was "much improved" after taking oxycodone. (Id. at 452.) A review of systems still indicated "[b]ack pain, [j]oint pain, [m]uscle weakness, [and] [n]eck pain" (id. at 454), but a physical examination yielded normal results (id. at 455). Approximately one month later, Plaintiff again visited PA Gilbert, because her insurance apparently would not pay for the high dosage of oxycodone that had been prescribed. (Id. at 657.) PA Gilbert lowered the oxycodone dosage, and assessed Plaintiff with chronic pain, GERD, lower back pain, neck pain, and right shoulder pain. (Id. at 660.)
Oxycodone is "used to help relieve moderate to severe pain." It belongs to a class of drugs known as opioid (narcotic) analgesics. Oxycodone HCL Solution, https://www.webmd.com/drugs/2/drug-1025-5278/oxycodone-oral/oxycodone-oral/details
On September 2, 2014, PA Gilbert completed a comprehensive medical source statement (the "2014 MSS"). (Id. at 404-13.) In that statement, she diagnosed Plaintiff with "fibromyalgia, depression, bipolar disorder, pernicious anemia, chronic paid, [and] GERD." (Id. at 404.) With regard to these conditions, she wrote that Plaintiff was "unable to walk standing upright without significant pain," that Plaintiff "suffer[ed] from severe depression for which she [took] daily anti-depressants," and that it was "difficult for her to get out of bed" and "concentrat[e] on tasks." (Id.) At that time, Plaintiff was prescribed 10 different medications, including Klonopin, omeprazole, oxycodone, Vicoprofen, Viibryd, and Wellbutrin. (Id.) PA Gilbert indicated that the prognosis was "lifelong." (Id. at 405.) She wrote that Plaintiff was "often . . . . crying and visibly depressed." (Id.) She noted that Plaintiff's "symptoms continue[d] to decline, specifically in regard to her physical health," and stated, in particular, that Plaintiff's "anthralgias/myalgias continue[d] to worsen and [were] not responding well to pain management." (Id.)
Klonopin (generic name clonazepam) is used for the treatment of panic disorder, with or without agoraphobia. Klonopin, https://www.rxlist.com/klonopin-drug.htm#description
Omeprazole "is used to treat certain stomach and esophagus problems (such as acid reflux, ulcers). It works by decreasing the amount of acid [the] stomach makes." Omeprazole, https://www.webmd.com/drugs/2/drug-3766-2250/omeprazole-oral/omeprazole-delayed-release-tablet-oral/details
Vicoprofen (generic name hydrocodone-ibuprofen) is used "to help relieve moderate to severe pain. It contains an opioid (narcotic) pain reliever (hydrocodone) and a nonsteroidal anti-inflammatory drug-NSAID (ibuprofen)." Vicoprofen Tablet, https://www.webmd.com/drugs/2/drug-4635/vicoprofen-oral/details
Viibryd (generic name vilazodone) is used for the treatment of major depressive disorder in adults. It is a selective serotonin reuptake inhibitor and partial serotonin receptor agonist, and works "by helping to restore the balance of certain natural substances in the brain." Viibryd, https://www.webmd.com/drugs/2/drug-155880/viibryd-oral/details
PA Gilbert's clinical findings were diffuse myalgias and arthralgias, diminished patellar reflexes, and radicular issues. (Id. at 413.) She specifically found that "all [of Plaintiff's] joints [had] lost [range of motion] and [were] functioning at about 30% of normal [range of motion]." (Id.) PA Gilbert also found that Plaintiff suffered from "extreme fatigue after any physical exertion" and that "this [was] also secondary to chronic depression." (Id.) She found that Plaintiff was "unable to function for several days at a time." (Id.) Further, she found that Plaintiff was "limited" in her adaptive abilities (because she was "resistant to change secondary to depression and [] anxiety"); in her upper extremities with repetitive movements; in her posture (as she was "unable to stay in one postural position for long periods of time" and "often shift[ed] from sitting to standing secondary to pain"); in understanding and memory (as, "due to depression and chronic medication use," she had "difficulty with [her] short term memory"); and in concentration and persistence. (Id. at 407-08.) She assessed Plaintiff, however, as having no limitations in her social interactions or in her ability to handle payment benefits (and thus presumably in her ability to maintain finances). (Id. at 408-09.)
PA Gilbert's assessment included findings regarding Plaintiff's functional limitations. Specifically, she found that Plaintiff could "occasionally (up to 1/3 of a work day)" "lift and carry" up to 20 pounds, and that she could "stand and/or walk," as well as "sit," "up to [six] hours per day." (Id. at 409.) She further assessed diminished "attention and concentration" abilities and diminished short-term recall, although Plaintiff's orientation and "insight and judgement" were assessed to be "intact." (Id. at 410.)
PA Gilbert noted that Plaintiff's ability to self-employ as a home cleaner was reduced; in this regard, she indicated that, while Plaintiff "attempt[ed] to clean homes for income," she was "often unable to complete [] tasks secondary to fatigue and pain." (Id.) PA Gilbert also wrote that, "[a]t times, [Plaintiff had] come to [PA Gilbert's] office rather unkempt" and had "trouble keeping up with shopping and cleaning/cooking secondary to chronic pain." (Id.) While PA Gilbert clarified that her office was not a mental health clinic, she did indicate that Plaintiff seemed chronically depressed, despite her "speech, thought, [and] perception" being otherwise "intact." (Id. at 411.)
On January 22, 2015, Plaintiff was examined at St. Peters by Lauren Lundy, a nurse practitioner ("NP"). (Id. at 648.) At that time, Plaintiff's chronic conditions were listed as "depressive disorder," "back pain," and fibromyalgia. (Id.) Plaintiff complained of "chronic debilitating pain in the cervical spine" and "frequent crying spells." (Id.) A review of systems indicated back pain, bone and joint symptoms myalgia, fatigue, headache, and paresthesia. (Id. at 649.) Physical examination results showed that Plaintiff's overall appearance was "chronically ill-appearing" and that she had an antalgic gait; tenderness in the cervical spine, with severe pain upon motion; and tenderness in the thoracic and lumber spines, but with only mild pain upon motion. (Id. at 649-50.) The presence of muscle spasms in both the neck and upper extremities were also noted. (Id.)
On February 11, 2015, Plaintiff was again seen by NP Lundy, and Plaintiff's mood was then reported to be "labile" with "angry or tearful" episodes, and she complained of fatigue (although Plaintiff also reported having abruptly stopped taking Viibryd, an anti-depressant, because she could no longer afford it). (Id. at 644.) NP Lundy recommended psychiatric care, for management of Plaintiff's medication regimen and to assist her in dealing with her stressors, and they discussed the negative side effects of stopping her Viibryd prescription while remaining on Wellbutrin. (Id. at 646.) NP Lundy assessed Plaintiff with, inter alia, depressive disorder and chronic pain. (Id.)
On February 18, 2015, Plaintiff reported that she had been in a motor vehicle accident and had gone to the emergency room for muscle spasms in her lower back. (Id. at 639.) A review of systems at the February 18 visit noted Plaintiff to have back pain, bone and joint symptoms, and "psychiatric symptoms." (Id. at 640.) Physical examination revealed an antalgic gait, muscle spasms in the cervical spine, and tenderness in the joints on slight palpitation, as well as psychological symptoms, such as anxiety and poor insight. (Id. at 641.) Plaintiff was assessed with sacroiliac pain, neck spasms, chronic pain, and mood disorder. (Id.) She was referred to physical therapy, and X-rays of the lumbar and cervical spines were ordered. (Id. at 642.)
On March 4, 2015, Plaintiff reported having returned to work, but she also reported an increase in pain. (Id. at 631.) She reported that she had not filled the prescription for X-rays and physical therapy because she had lost those prescriptions. (Id.) A review of systems noted positive responses for fatigue, back pain, bone and joint symptoms, myalgia, and neck stiffness. (Id. at 631-32.) Physical examination results were similar to the prior session, except that Plaintiff's gait was described as "normal," although with "occasional spasm." (Id. at 632.). NP Lundy assessed Plaintiff with lower back pain, but declined to increase the dosage of Plaintiff's pain medication because no diagnostic studies had yet been performed. (Id. at 633.) X-rays and physical therapy were ordered once again. (Id. at 634.) On March 16, NP Lundy noted that Plaintiff's mood was more stable, her sleep had improved, and she seemed better able to handle stressors and anxiety-provoking situations. (Id. at 637.) They discussed Plaintiff's chronic neck pain, and Plaintiff was advised to follow up with a pain management specialist and orthopedic specialist. (Id.) In April, a physical examination yielded unremarkable results. (Id. at 628.) NP Lundy noted that Plaintiff was more alert since ceasing Klonopin, and she again recommended that Plaintiff be seen by a pain management specialist. (Id. at 629.)
On June 5, 2015, Plaintiff reported increased neck pain from having packed and moved her children's belongings. (Id. at 623.) She indicated that she had not yet seen a "spine physician" or a pain management specialist due to lack of time. (Id.) A review of systems again showed fatigue, headache, back pain, bone and joint symptoms, and neck stiffness. (Id. at 623.) Physical examination results, however, were again unremarkable, except that tight cervical spine muscles and tenderness in the lumbar spine were noted. (Id. at 624.) Plaintiff was also assessed with neck muscle spasm and anxiety. (Id. at 625.)
On June 19, 2015, Plaintiff reported more pain in her right shoulder, although she also reported that she felt better after regularly taking her medication. (Id. at 619.) A review of systems showed fatigue, back pain, myalgia, and neck stiffness. (Id.) Physical examination was again generally unremarkable, except for a finding of tenderness over the right scapula with palpation and muscle tension; improved range of motion in the neck and the lower back were also noted. (Id. at 620.) An MRI of the cervical and lumbar spine was ordered. (Id.) MRI tests performed on July 24, 2015 indicated minimal narrowing of the neural foramina, but no significant disc herniation; degeneration and minimal spondylosis; moderate facet hypertrophy; mild narrowing of the spinal canal; and mild foraminal stenosis; with an overall impression of stable appearance of the lumbar spine, although with a tiny disc bulge and mild narrowing of the spinal canal and right neural foramen. (Id. at 507-08.)
Facet hypertrophy "is the term used to describe a degeneration and enlargement of the facet joints." Hypertrophic Facet Disease Definition, https://www.spine-health.com/glossary/hypertrophic-facet-disease
Spinal stenosis is the narrowing of the spine, which puts pressure on the nerves and spinal cord and can cause pain. Spinal Stenosis, https://medlineplus.gov/spinalstenosis.html Foraminal Stenosis is the narrowing of the cervical disc space caused by enlargement of a joint in the spinal canal. Foraminal Stenosis, https://www.spine-health.com/glossary/foraminal-stenosis
On July 31, 2015, Plaintiff and NP Lundy discussed the MRI results and NP Lundy again encouraged Plaintiff to follow up with a pain management specialist. (Id. at 609.) NP Lundy recommended further consultation with a neurologist or physiatrist, due to Plaintiff's muscle spasms. (Id.) With respect to Plaintiff's chronic pain, NP Lundy expressed her concern with Plaintiff's opiate medication usage, and she decreased some of those medications and prescribed Soma for the muscle spasms. (Id. at 609.) A review of systems indicated joint pain, headache, and constipation. (Id. at 607-08.) Physical examination results were generally unremarkable, although tenderness along the spine and mild decreased range of motion in the cervical spine were noted. (Id. at 608.)
Soma (generic name carisoprodol) is used to short-term to treat muscle pain and discomfort. It works by helping to relax the muscles. Soma, https://www.webmd.com/drugs/2/drug-12153/soma-oral/details
On August 11, 2015, Plaintiff reported to PA Gilbert that she felt worse from the changes made to her medication regimen. (Id. at 604.) She requested that she be returned to her original combination of Percocet and Vicoprofen, but PA Gilbert declined. (Id. at 604, 605.) A review of systems indicated back pain and neck pain, but results were otherwise unremarkable. (Id. at 604-05.) Physical examination results were also unremarkable. (Id. at 605.)
Percocet (generic name oxycodone-acetaminophen) is used to help relieve moderate to severe pain. It contains a opioid pain reliever and a non-opioid pain reliever. Percocet, https://www.webmd.com/drugs/2/drug-7277/percocet-oral/details
On October 14, 2015, Plaintiff indicated that she required Percocet for her pain. A review of systems indicated constipation, fatigue, back pain, joint pain, joint swelling, muscle weakness, and neck pain, as well as dizziness, extremity weakness, gait disturbance, headache, and numbness in Plaintiff's extremities. (Id. at 597.) PA Gilbert noted Plaintiff's long history of pain secondary to fibromyalgia, as well as chronic back issues. (Id. at 598.) She referred Plaintiff to a pain management clinic for further treatment. (Id.)
On December 29, 2015, Plaintiff returned to PA Gilbert to follow up on her pain management treatment by pain management specialist, Dr. Larisa Bruma (whose medical treatment notes are further discussed below). Plaintiff reported "feeling worse," including feeling "completely drugged," and she complained that she could not function on her then-current medication regimen. (Id. at 591.) A review of systems indicated dizziness, extremity weakness, gait disturbance, headache, memory impairment, numbness in extremities, back pain, joint pain and swelling, muscle weakness, and fatigue. (Id. at 592.) Physical examination results, however, remained unremarkable. (Id. at 592-93.) PA Gilbert recommended that Plaintiff follow up with Dr. Bruma for her chronic pain syndrome. (Id. at 593.)
ii. StartNew Medical P.C. Dr. Larisa Bruma (Pain Management Specialist)
Plaintiff began seeing Dr. Bruma, a pain management specialist, at StartNew Medical P.C. ("StartNew") during the relevant period, apparently (based on the medical treatment notes of PA Gilbert and NP Lundy, as summarized above) for management of her ongoing pain symptoms and her opioid-based medication regimen.
The first medical treatment note from Dr. Bruma, dated October 23, 2015, reflects that Plaintiff initially presented with complaints of neck and shoulder pain radiating to her arms; migraines and headaches that were aggravated by activity; stiffness and joint popping; diffuse weakness; memory loss; and numbness in her right thumb. (Id. at 705.) Dr. Bruma wrote that Plaintiff was not attending physical therapy and was unemployed. (Id. at 705-06.) Upon physical examination, Dr. Bruma noted that Plaintiff had very limited trunk flexion and extension, and limited range of motion in the cervical spine. (Id. at 706.) She also noted that Plaintiff's strength was poor due to pain, that there was spasming in the paraspinal muscles, and that Plaintiff had moderately limited flexion, extension, and rotation. (Id. at 706.) Dr. Bruma further noted that Plaintiff had a limited range of motion in her right shoulder, and that she had tested positive for Tinel's sign. (Id. at 707.) With respect to neurological findings, Dr. Bruma found that Plaintiff experienced inconsistent sensations. (Id. at 707.) Dr. Bruma also indicated trigger points for fibromyalgia. (Id.) Dr. Bruma assessed Plaintiff with chronic pain syndrome, spondylosis with radiculopathy in the cervical and lumbar region, carpal tunnel syndrome, post-laminectomy syndrome, myalgia (with history of chronic fatigue syndrome and fibromyalgia), chronic migraine, and spasmodic torticollis. (Id. at 707-08.)
Tinel's sign is a test that is commonly used to diagnose carpal tunnel syndrome. Tinel's Sign, https://www.healthline.com/health/tinels-sign
Spasmodic Torticollis (cervical dystonia) "is a disorder where the muscles of the neck contract uncontrollably, making the head turn into various postures. It can be caused by a neurologic disease or as the result of an accident. The spasms tend to worsen when a person stands or walks, making simple tasks difficult." Spasmodic Torticollis, http://www.aanem.org/Patients/Disorders/Spasmodic-Torticollis
On November 4, 2017, Plaintiff reported experiencing severe pain and diffuse body aches, and indicated that she had been taking Vicoprofen and oxycodone six times per day and using Soma, a muscle relaxant. (Id. at 694.) She also reported severe migraines and an inability to exercise or to perform household activities. (Id.) Notably, on November 6, Dr. Bruma wrote that Plaintiff was being treated for multifactorial chronic pain syndrome and that the medication regimen being used to treat Plaintiff's fibromyalgia had been ineffective. (Id. at 697.)
On November 17, 2015 and December 1, 2015, Dr. Bruma ordered an electromyography ("EMG") study of Plaintiff's lumbar spine and upper extremities (see id. at 677-78, 688-89); the EMG that was then performed indicated bilateral radiculopathy (id. at 678, 689). On November 25, 2015, Plaintiff presented to Dr. Bruma with complaints of neck and shoulder pain, migraine headaches, and worsening pain in the lower back. Dr. Bruma noted that Plaintiff was then on morphine and had begun physical therapy. (Id. at 684.) Dr. Bruma also noted that an MRI of Plaintiff's lumbar spine, performed on November 12, "correlate[d] with her symptoms" and indicated moderate facet hypertrophy. (Id.) She recommended lumbar epidural injections. (Id.)
Morphine is used to relieve moderate to severe pain. Side effects include drowsiness, stomach pain and cramping, dry mouth, headaches, nervousness, mood changes, small pupils, and urination difficulties. Morphine, https://medlineplus.gov/druginfo/meds/a682133.html
On December 8, 2015, Plaintiff again complained of migraines (id. at 672), and Dr. Bruma strongly encouraged her to see a neurologist for her migraines (id.). Plaintiff's physical examination results showed no significant change from prior results. (Id. at 673-74.) Plaintiff informed Dr. Bruma, though, that her insurance did not cover physical therapy or certain medications relating to the treatment of her fibromyalgia. (Id. at 672.)
iii. Orthopedic Associates of Dutchess County Dr. Richard Dentico (Physiatrist)
In addition to receiving primary care from medical professionals at St. Peter's, and being treated by Dr. Bruma at StartNew for pain management, Plaintiff was also treated, during the relevant period, by Dr. Richard Dentico of Orthopedic Associates of Dutchess County ("Orthopedic Associates").
Plaintiff visited Dr. Dentico on February 11, 2014, complaining of neck pain. (Id. at 358-60.) A review of systems indicated "numbness, weakness" in the neurologic system, "depression and anxiety," "fatigue," and "nausea, diarrhea and constipation." (Id. at 359.) Physical examination results, however, were unremarkable, except for findings of limited range of motion in the cervical spine, palpatory tenderness along the left paraspinals and facet joints, and a positive Spurling Test. (Id.) An X-ray, which was taken due to Plaintiff's "radicular symptoms and positive Spurling maneuvers," showed "normal alignment" and "no instability," and an MRI was ordered. (Id. at 360.)
The Spurling test helps to diagnose cervical radiculopathy. What is the Spurling Test? https://www.healthline.com/health/spurling-test
On March 11, 2015, Plaintiff again visited Orthopedic Associates, complaining of pain in her neck, lower back, shoulders, and right leg. (Id. at 828.) She reported that her neck and back had been "jolted" in a motor vehicle accident. (Id.) She complained that the pain was "constant," and was worsened by walking, lifting, bending, sitting, reaching, and standing, as well as when the weather changed. (Id.) A review of systems showed dizziness, numbness, and fainting; the presence of Lyme disease; chest pain; bronchitis and pneumonia; nausea and constipation; fatigue and night sweats; and back pain and joint pain. (Id. at 829.) Physical examination results indicated normal gait, mild restriction of cervical range of motion, tenderness with palpation over cervical and lower lumbar paraspinals and buttocks, and positive straight leg raising on the left. (Id.) Noted impressions included cervical radiculopathy, lower back pain, lumbar radiculopathy, and neck pain. (Id. at 830.) MRIs of Plaintiff's cervical and lumbar spines were ordered. (Id.)
On March 18, 2015, Plaintiff underwent MRIs of her cervical and lumber spine, as well as an X-ray of her lumbar spine. (Id. at 441, 443, 445.) The X-ray impression was of bilateral facet degeneration with mild foraminal narrowing, spondylolisthesis with no evidence of instability, and mild loss of disc height. (Id. at 441.) The MRIs found minor degenerative spondylosis; a right foraminal disc protrusion and a left lateral foraminal annular post anterior cervical fusion with metallic hardware in place; cervical lordosis (possibly due to muscle spasm); mild uncovertebral hypertrophy (but without significant spinal stenosis or foraminal narrowing); paracentral disk-osteophyte complex (but without significant cord abnormality or foraminal narrowing); and minimal ventral ridging (but, again, without significant spinal stenosis or foraminal narrowing). (Id. at 445.)
Lordosis is the natural lordotic curve. When the curve arches too far inward, it is called "lordosis, or swayback," which may affect the lower back and neck, leading to excess pressure on the spine and causing pain and discomfort. Lordosis, https://www.healthline.com/health/lordosis
Uncovertebral hypertrophy "is the enlargement of small synovial joints found in the upper surfaces of the bodies of the lower cervical vertebrae and the inferior surface of the superior vertebral body. The enlargement of these neck joints and pain are a common symptom of degenerative neck disease." What Is Uncovertebral Hypertrophy?, https://www.reference.com/health/uncovertebral-hypertrophy-4f218506cbfffe2d
Disc Osteophyte Complex "occurs when more than one spinal vertebra or intervertebral disc is affected by osteophytes, which are more commonly referred to as bone spurs." Understanding disc osteophyte complex, https://www.laserspineinstitute.com/back_problems/spinal_bone_spurs/disc_complex/
On March 31, 2015, Dr. Dentico reviewed the MRI results with Plaintiff, and recommended that she receive a lumbar epidural injection. (Id. at 826.) A review of systems by Dr. Dentico showed numbness, nausea, vomiting, and constipation; further, upon a physical examination, Dr. Dentico indicated that Plaintiff had pain limitations in her right deltoid, and that range of motion in her left shoulder "was severely painful at certain ranges." (Id. at 825.)
iv. Consultative Examiner Dr. Rita Figueroa
The Record does not indicate Dr. Figueroa's medical field or specialty, although the heading of the notes of her consultative examination indicate that it was an "internal medicine examination." (See R. at 420.)
On November 6, 2014, Dr. Rita Figueroa performed a consultative examination of Plaintiff. (Id. at 420-24.) Plaintiff's chief complaints were fibromyalgia, migraines, irritable bowel syndrome, neck pain, left knee weakness, and right shoulder wear and tear. (Id. at 420- 21.) Plaintiff specifically complained that she "hurt[] all over," including in her "legs, scalp, [and] hands," and that she experienced "fatigue and tiredness" due to fibromyalgia. (Id. at 420.) Plaintiff also specifically complained that, due to her migraines, she had "photophobia and noise sensitivity," and experienced "nausea and vomiting three to four times a week." (Id.) Moreover, Plaintiff complained that she had injuries to the area of her cervical spine, for which she had undergone surgery, and that she had a torn meniscus. (Id.) Dr. Figueroa further noted, with respect to Plaintiff's daily living activities, that Plaintiff reported that her ability to cook, clean, do laundry, and shop all depended on her pain level and her mental state, but that she otherwise could shower and dress herself, that she watched television, and that she listened to the radio. (Id. at 421.)
A physical examination revealed a "slow, mechanical, and choppy" gait and a squat limited to 25 percent, although Dr. Figueroa wrote that Plaintiff could otherwise walk on her heels and toes without difficulty. (Id. at 422.) Plaintiff did not use any assistive devices and was able to change for the exam, to get on and off the table without help, and to rise from her chair without difficulty. (Id.) Dr. Figueroa noted, though, that Plaintiff's flexion and extension were limited, that there were spasms in her shoulder, and that her left leg could not be examined at all due to lower back pain. (Id. at 422-23.) In addition, Dr. Figueroa indicated that, while backward extension, abduction, and adduction were possible, these tests had to be performed slowly. (Id. at 423.) Dr. Figueroa further indicated that Plaintiff's reflexes were diminished in her upper and lower extremities, and that her left foot was unable to sense pinprick sensation, but that she otherwise possessed full strength. (Id.) Dr. Figueroa noted that Plaintiff's lumbar spine X-rays showed disc space narrowing and spondylolisthesis with moderate straightening. (Id.)
Dr. Figueroa included a brief medical source statement with her examination notes, finding that Plaintiff had "marked limitations for going up and down stairs, kneeling and squatting" due to a torn left knee meniscus, and "moderate limitation to prolonged walking and standing due to left knee pain," which "radiat[ed] toward the back." (Id. at 423-24.) Dr. Figueroa also found Plaintiff to have "moderate limitation[s] for pushing and pulling, and lifting and carrying," due to Plaintiff's right shoulder pain. (Id. at 424.) Dr. Figueroa stated Plaintiff's prognosis to be "fair." (Id. at 423.)
b. Mental Impairments
i. Ann Paedan (Nurse Practitioner)
Although this Court assumes that Nurse Practitioner Paedan was affiliated with an institutional provider, the identity of that provider is not clear from the Record.
Aside from the mental status notes referenced above, the first indication in the Record of any mental health assessment of Plaintiff during the relevant period is a February 24, 2014 evaluation by NP Ann Paedan. (Id. at 396.) In her evaluation notes, NP Paedan wrote that Plaintiff was "crying a lot" and reported being depressed. (Id.) NP Paedan assessed that Plaintiff's grooming and dress were "appropriate," that her attitude was "cooperative," that her thought processes were "coherent," and that her speech was "normal," although her mood and affect were "angry." (Id. at 399-400.) She found that Plaintiff was oriented, that her memory was intact, and that her information, abstraction, insight, and impulse control were "good." (Id. at 400.) She also found that Plaintiff's concentration was "limited." (Id.) She noted that Plaintiff was having trouble sleeping, but that her appetite was good. (Id.) NP Paedan diagnosed Plaintiff with depression. (Id. at 401.)
ii. Hudson Valley Mental Health Dr. Aurora Carino (Psychiatrist) Dr. Pushpa Shyam Patil (Psychiatrist) Jana Vengrin (Nurse Practitioner)
In early 2015, Plaintiff started mental health treatment with health professionals at Hudson Valley Mental Health ("HVMH"). (Id. at 521-86.) On February 26, 2015, Plaintiff presented to HVMH with complaints of disorganization and "mania," which she attributed to her medication regimen. (Id. at 572.) She indicated that she had agoraphobia. (Id.) She also reported that her home was in foreclosure and that she was fearful of her ex-husband. (Id.) On March 3, 2015, Plaintiff indicated she could not "work anymore because [her] job was physically laboring." (Id. at 566.) On March 27, 2015, Plaintiff again visited HVMH, reporting that she was "overwhelmed and depressed," and was experiencing "panic attacks and anxiety." (Id. at 573.) It was noted that Plaintiff needed mood stabilization with medication. (Id.)
On April 16, 2015, Dr. Aurora Carino, a psychiatrist at HVMH, noted that Plaintiff's house was in foreclosure, and that, as a result, she was feeling overwhelmed and "having more panic attacks," despite being on medication. (Id. at 551.) Dr. Carino also noted that Plaintiff had not been on medication for five days due to issues with her insurance, which may have contributed to "her decompensation with increase[d] depression and panic attacks." (Id.) An assessment of Plaintiff's mental status showed that she "was very anxious, at time stuttering with periodic crying, mild flight of ideas," and "thought blocking"; that she was afraid to be alone and got "panicky when she hear[d] loud noise[s]"; that her memory recall was diminished; and that she only had "some" insight (although her judgment was found to be "fair"). (Id. at 551.) Dr. Carino diagnosed Plaintiff with, inter alia, major depressive disorder and adjustment disorder with depression. (Id. at 553.)
On May 12, 2015, Dr. Pushpa Shyam Patil, another psychiatrist at HVMH, noted that, while Plaintiff was a "[l]ittle bit floaty," she was "leveled with Klonopin," and had not yet experienced any side effects from that medication. (Id. at 576.) Upon examination, Dr. Patil found that Plaintiff was alert and oriented; her thoughts were "relevant and coherent"; her mood and affect "[were] mildly anxious and depressed"; her cognitive functions were grossly intact; and her insight, judgment, and impulse control were "fair." (Id.) Dr. Patil recommended that Plaintiff continue taking her medication and also that she receive therapy. (Id.) On June 3, 2015, Plaintiff reported to Carol Philhower, a mental health counselor at HVMH, reporting improvement (i.e., that Plaintiff was "doing better" and was stabilizing on her medication). (Id. at 577.)
On July 23, 2015, however, Dr. Patil again noted Plaintiff's reports of anxiety, depression, and stress. (Id. at 579.) Plaintiff also reported drowsiness, as a side effect from her medication. (Id.) Dr. Patil assessed Plaintiff as "mildly" anxious and depressed, but indicated that she appeared alert and oriented, that her thoughts were relevant and coherent, and that her cognitive functions were intact. (Id.)
In 2015, Plaintiff reported side effects from the Klonopin, including sleepiness. (Id. at 584.) Jana Vengrin, a nurse practitioner at HVMH, decreased the dosage. (Id.) By the next session, though, Plaintiff reported crying "at the drop of a hat," about six times a day for 45 minutes at a time. (Id.) Moreover, Plaintiff reported that she had stopped taking Trazadone because it made her "sleepy." (Id.) NP Vengrin noted, generally, that Plaintiff was doing better, and she attributed Plaintiff's tiredness to the morphine that she was taking. (Id.) NP Vengrin also noted, that while massage and acupuncture had been recommended, Plaintiff's insurance would not cover such treatments. (Id.)
iii. Consultative Examiner Lauren Stack, Ph.D. (Psychologist)
On November 6, 2014, Dr. Lauren Stack, a psychologist and consultative examiner, examined Plaintiff with respect to her mental impairments. Dr. Stack reported that Plaintiff had driven herself to the appointment, that she had two sons, that she had not had learning difficulties while in school, and that she had not been employed in her job as a cleaning and estate manager since October of 2014, due to chronic pain. (Id. at 414.) Dr. Stack noted Plaintiff's report that she was unable to perform certain tasks because of emotional and psychological problems, and that she was unable to work due to pain, anxiety, physical limitations, and psychological issues. (Id.) Although she noted that Plaintiff was able to dress, bathe, and groom herself; cook and prepare food; and drive and take public transportation (id.), she also noted that, due to pain and anxiety, Plaintiff reportedly struggled with cleaning, doing laundry, and shopping (id.). She wrote that Plaintiff reported receiving assistance from a friend for money management, although Plaintiff also reported having few friends and no familial relationships beyond her relationships with her children. (Id.) According to Dr. Stack, Plaintiff reported that she spent her days watching television, listening to the radio, taking care of her children, going on the Internet, attending Alcoholics Anonymous meetings, and accessing resources "to avoid homelessness." (Id.) Of note, Dr. Stack assessed Plaintiff as having "deficits in social functioning, home living, leisure, and work that stem[med] from physical problems and symptoms of anxiety, depression, PTSD, and panic." (Id.)
Regarding Plaintiff's personal history, Dr. Stack noted that Plaintiff reported having experienced "a lot of stress in her life," resulting from, inter alia, having been in an abusive marriage and having found her boss's body, after he had committed suicide in one of the houses that Plaintiff managed. (Id. at 415.) Plaintiff further reported that one of her sons was autistic, and that her other son had been sexually abused. (Id.) She also reported several symptoms of depression, anxiety, and panic attacks, as well as other cognitive symptoms, including a dysphoric mood, crying spells, guilt, hopelessness, irritability, diminished self-esteem, concentration difficulties, social withdrawal, excessive apprehension and worry, fatigue, irritability, nightmares, restlessness, difficulty concentrating, muscle tension, flashbacks, hypervigilance, heart palpitations, sweating, dizziness, breathing difficulties, trembling, chest pain, being unable to leave the house by herself, short-term memory deficits, and difficulty in organization and planning. (Id.)
Dr. Stack performed a mental status examination and found that, while Plaintiff's mood was dysthymic, her speech was fluent, her thought processes were coherent and goal directed, her affect was full range and appropriate, her sensorium was clear, her orientation was correct, and her attention and concentration were intact (in that Plaintiff was able to count and conduct simple calculations). (Id. at 416-17.) Dr. Stack also found that, while Plaintiff's eye contact was poor, and her posture was slouched, she had a cooperative demeanor, an adequate manner of relating, and appropriate dress and hygiene, and she also exhibited normal motor behavior. (Id. at 416.) Dr. Stack assessed Plaintiff's memory skills as "[m]ildly impaired," with "average" cognitive functioning, and her insight and judgment as fair. (Id. at 417.)
In her medical source statement, Dr. Stack wrote that Plaintiff had psychiatric problems that "may significantly interfere with [her] ability to function on a daily basis." (Id. at 418.) She evaluated Plaintiff as having "moderate" impairment in her ability to maintain a schedule, relate adequately to others, and appropriately deal with stress. (Id.) According to Dr. Stack, Plaintiff had "mild" impairment in the ability to learn new tasks, perform complex tasks independently, and make appropriate decisions; and she had no impairment in the ability to follow and understand simple directions, perform simple tasks independently, and maintain attention and concentration. (Id.)
Dr. Stack diagnosed Plaintiff with major depressive disorder, panic disorder, PTSD, and alcohol use disorder (in remission). (Id.) She recommended that Plaintiff receive therapy and psychiatric intervention. She indicated that Plaintiff's prognosis was guarded, "given the severity of [her] mental health symptoms and problems." (Id.)
iv. Non-examining Consultant Terri Bruni, Ph.D. (Psychologist)
Shortly after Dr. Stack's examination, Dr. Terri Bruni, a non-examining state agency psychologist, made similar findings. Specifically, Dr. Bruni found "moderate" limitations in Plaintiff's ability to understand and remember detailed instructions, to carry out detailed instructions, to perform activities within a schedule, to maintain regular attendance, to be punctual with customary tolerances, to complete a normal workday and workweek without interruptions from psychologically-based symptoms, to perform at a consistent pace without an unreasonable number and length of rest periods, and to interact with the general public. (Id. at 108-10.) Dr. Bruni did not, however, find any adaptation limitations. (Id. at 109-10.) Dr. Bruni found that Plaintiff could understand and remember simple instructions, maintain adequate attention to complete ordinary work tasks on an ongoing basis, relate and respond to others in an appropriate manner, and deal with minor changes in an ordinary work setting (although she also indicated that Plaintiff "ha[d] some trouble coping with stress, and [that] this might impact her capacity to adapt to changes"). (Id. at 110.)
2. Medical Evidence Outside the Relevant Period
The Record contains extensive medical treatment notes and diagnostic studies post-dating the relevant period. The most relevant of this evidence is summarized below, for further context.
a. Physical Impairments
i. Continued Treatment at St. Peter's Dr. Yvanalie Laurent
After the period at issue, the most relevant medical treatment note from St. Peter's (Plaintiff's primary care provider) is dated October 6, 2016. (Id. at 855-62.) At that time, Plaintiff was apparently seen by Dr. Yvenalie Laurent for a routine preventative examination. (See id.) Similar to what was often found during the relevant period, the results of a physical examination at that time were unremarkable (see id. at 858-59), and, with respect to both Plaintiff's chronic pain syndrome and depression, Dr. Laurent wrote that Plaintiff's symptoms "remain[ed] well controlled" (id. at 860). Despite this, Dr. Laurent noted, upon a review of systems, that Plaintiff was positive for "[b]ack pain" and "[j]oint pain." (Id. at 857.)
ii. Continued Treatment at StartNew Lisa Palmieri (Nurse Practitioner) Joel Lagunda (Physical Therapist) Dr. Larisa Bruma (Pain Management Specialist)
After the relevant period, Plaintiff also continued her pain management treatment at StartNew, including by engaging in physical therapy there.
On March 15, 2016, Plaintiff saw Lisa Palmieri, a nurse practitioner at StartNew. (Id. at 748-52.) Plaintiff reported to NP Palmieri that, while her pain medication was working well, the numbness in her right arm was increasing, and she wished to resume physical therapy. (Id. at 748.) In addition, NP Palmieri noted that Plaintiff was experiencing headaches and migraines, rated at a nine out of 10 on the severity scale, with nausea or vomiting, and photophobia or phonophobia. (Id. at 748-49.) At that time, a physical examination revealed that Plaintiff was in moderate distress upon movement, was in obvious discomfort, and experienced pain when changing positions. (Id. at 750.) NP Palmieri also noted trigger points at the lumbosacral segments bilaterally, diminished strength, spasm of the paraspinal muscles, and decreased range of motion. (Id.)
On March 25, 2016, an assessment of Plaintiff's functional capacity was completed by Joel Lagunda ("Lagunda"), a physical therapist at StartNew. (Id. at 746-47.) As set forth in that evaluation, although Lagunda found that Plaintiff was able to reach left and right, grasp left and right, walk up and down one flight of stairs, and stoop to 30 degrees (id.), he also found Plaintiff to have significant limitations. Specifically, Lagunda found that Plaintiff could only sit for 30 minutes, stand for 10 minutes, lift up to 20 pounds (although frequent and constant lifting were limited to only 10 and four pounds, respectively), and carry up to 10 pounds (although frequent and constant carrying was limited to only five and two pounds, respectively). (Id.) In addition, Lagunda found that Plaintiff was not able to stand balanced for 30 seconds, walk balanced for six feet on a beam, or crouch balanced for 30 seconds on a beam. (Id. at 746.) Lagunda also found that Plaintiff was generally not able to crouch, kneel, or crawl. (Id.)
On April 15, 2016, Plaintiff saw Dr. Bruma, complaining of "chronic pain" in her neck, shoulder, and knee. (Id. at 741.) She also reported experiencing significant number of migraines. (Id.) Dr. Bruma rated Plaintiff's neck pain as an eight out of 10 in severity, and noted that the pain was radiating to her arms, aggravated by activity, but alleviated by medication and rest. (Id.) Dr. Bruma also noted that Plaintiff's arms were numb bilaterally. (Id.) Further, she rated Plaintiff's shoulder pain as a seven out of 10 in severity, with associated weakness, without any radiating, but still aggravated by activity and alleviated by medication and rest. (Id.) Plaintiff's left and right knees were rated as a four out of 10 in pain severity, radiating to Plaintiff's thighs and ankles, and aggravated by heat, although alleviated by medication. (Id.) Finally, Dr. Bruma rated Plaintiff's migraines and headaches at a nine out of 10 in severity, with up to 16 headaches per month with "pounding pain, throbbing pain and pressure," and Dr. Bruma indicated that Plaintiff was unable to engage in exercise or perform any household activities. (Id. at 741-42.) Nauseous or vomiting, and photophobia or phonophobia, was again noted, as well as severe constipation. (Id.) Physical examination results indicated that Plaintiff "appear[ed] to be in moderate distress, show[ed] distress with movement, [was in] obvious discomfort, [and was] experiencing pain [that was] . . . indicated by [Plaintiff's] changing positions often, facial wincing[,] and the need to l[ie] down." (Id. at 743.) Dr. Bruma also noted some diminishment in strength, with associated pain; spasms in the paraspinal muscles; and decreased range of motion, along with associated pain upon all movements. (Id.)
On May 11, 2016, Plaintiff had a follow-up examination with Dr. Bruma, at which time she reported having experienced a long-lasting migraine (lasting 11 hours) accompanied by nausea, dry heaving, photophobia, phonophobia, and no relief with medication. (Id. at 737.) Plaintiff rated her overall pain level as an eight out of 10, although she rated her headaches and migraines at a nine out of 10 in severity, aggravated by activity, and "[l]ocated over the entire head," such that she was reportedly unable to exercise or to perform any household activities. (Id.) Upon physical examination, Dr. Bruma again assessed Plaintiff as appearing in moderate distress, as showing distress with movement, as being in obvious discomfort, and as experiencing pain. (Id. at 739.) Dr. Bruma also indicated that Plaintiff had trigger points at the lumbosacral segments, reduced strength with pain, spasming in the paraspinal muscles, and decreased range of motion, with pain upon movement. (Id.) She prescribed Embeda. (Id. at 740.)
Embeda (generic name morphine sulfate and naltrexone hydrochloride) "is indicated for the management of pain severe enough to require daily, around-the-clock, long-term opioid treatment and for which alternative treatment options are inadequate." Embeda, https://www.rxlist.com/embeda-drug.htm#dosage
Medical treatment notes from July 7, 2016 show that, at that point, Plaintiff had stopped her morphine medication because it reportedly made her "very sleepy." (Id. at 728.) Dr. Bruma indicated, at that time, that Plaintiff would be receiving injections from a physician at Orthopedic Associates, and that her overall pain level had decreased to a four out of 10, although her level of lower back pain was reportedly greater, rated at a seven out of 10. (Id.)
On November 16, 2016, Plaintiff again visited Dr. Bruma, complaining of pain in her neck, knees, and shoulders. (Id. at 868.) She reported that the pain came from sitting. (Id.) She rated her neck pain as seven out of 10, radiating to her arms with numbness, and aggravated by activity (although alleviated by pain medication and rest); she rated her bilateral shoulder pain as eight out of 10, located "diffusely over the shoulder," with associated weakness, but not radiating, and aggravated by activity (although alleviated by heat, ice, pain medication, and rest); she rated her left knee pain as eight out of 10, radiating to her thigh and ankle, and aggravated by activity and lifting (although alleviated by heat and pain medication); and she rated her right knee pain as seven out of 10, radiating to her thigh and ankle, and aggravated by activity and lifting (although alleviated by heat and pain medication). (Id. at 868.) Physical examination by Dr. Bruma showed radial pulsing, tenderness in the spine, reduced strength in the spine, spasm of the paraspinal muscles bilaterally, and reduced range of motion with pain, although Plaintiff's gait was normal. (Id. at 870.) Dr. Bruma ordered an X-ray and MRI, in order to evaluate Plaintiff's worsening radicular symptoms, as well as her pain.
On November 23, 2016, per Dr. Bruma's order, an MRI was performed on Plaintiff's lumbar spine. The impression was "mild" spinal stenosis, "mild" foraminal narrowing at multiple levels, and "[s]mall" "bright lesions" within some of the "vertebral bodies," which were of "uncertain significance." (Id. at 864.) In addition, an X-ray of the lumbar spine indicated spondylolisthesis, which was noted to be "slightly worse than on the prior MRI." (Id. at 866.)
b. Mental Impairments - Continued Treatment at HVMH Jana Vengrin (Nurse Practitioner) Gregory Gallo (Medical Social Worker) Dr. Aurora Carino (Psychiatrist)
After the relevant period, Plaintiff also continued to receive mental health treatment at HVMH, including therapy with a licensed medical social worker.
On January 25, 2016, Plaintiff reported to NP Vengrin that Lamictal had helped with her mood swings. (Id. at 807.) Plaintiff reported that migraines and body pain from her fibromyalgia caused her to feel tired during the day. (Id.) NP Vengrin assessed Plaintiff as "doing better" on her medication. (Id. at 586.) Plaintiff's affect was recorded as "pleasant," her mood was described as "okay," and her thoughts were noted to be rational, relevant, and goal directed. (Id.)
Lamictal (generic name lamotrigine) is used alone or with other medicals to prevent the extreme mood swings of bipolar disorder in adults. Lamictal Tablet, https://www.webmd.com/drugs/2/drug-8486-7217/lamictal-oral/lamotrigine-oral/details
On February 25, 2016, however, Plaintiff reported that her daily crying bouts had returned, that her mood was "[o]verly sensitive and overly emotional," and that she felt tired. (Id. at 805.) She also reported that she was continuing to experience migraines, as well as pain from fibromyalgia and from past injuries to her neck and shoulder. (Id.) NP Vengrin noted that Plaintiff would begin counseling with a therapist. (Id.)
In or about February 2016, Plaintiff also began attending therapy with Gregory Gallo ("Gallo"), a licensed medical social worker. Gallo noted that Plaintiff initially presented to him as "overwhelmed with life stressors," and as having "medical problems, trauma history, [a] pressured presentation, [and] emotional dysregulation." (Id. at 806.) He further noted that Plaintiff was experiencing "crying spells," both during their session and reportedly during the day, which was "negatively impacting her functioning socially and emotionally." (Id.) On March 3, 2016, Plaintiff presented to Gallo as "tearful and trembling." (Id. at 804.) During her next session, she reported anxiety, having migraines, and being in physical pain. (Id. at 802.) Gallo again noted that Plaintiff would sometimes cry during her sessions with him. (See, e.g., id. at 802, 799.) In April and May, she reported an anxiety level of seven out of 10, and a depression level of eight out of 10. (Id. at 798, 795.) She also reported ongoing problems relating to anxiety, agoraphobia, trauma reactions, paranoia (e.g., that "others were watching her in her home"), and PTSD symptoms (e.g., "panic when hearing helicopters" and "loud noises"). (Id. at 798.)
In June, NP Vengrin made a note of Plaintiff's having "manic episodes" and "racing thoughts." (Id. at 793.) Although Plaintiff reported that she had recently undergone a procedure on her neck, which had decreased her migraines, she also indicated that she would need further such procedures. (Id. (referencing plan for further cortisone injections and nerve cauterization).) By July, while Plaintiff reported persistent anxiety, Gallo noted that she was "not as emotionally labile," and her "crying spells [had] decreased," although her emotions appeared to be strongly affected by the types of medication she was taking. (Id. at 790, 787.) In September, Gallo noted further improvement, writing that Plaintiff was "relatively calm and centered," having transitioned from having a "hypomanic" to a "euthymic" mood. (Id. at 846.) Her anxiety had also reportedly decreased, and she was "coping better" and had "more insight." (Id.) He noted, however, that, despite these improvements, she was "still prone to mood dysregulation," and that she "may have some difficulty with stability due to a history of hypomania and chaos in her life." (Id.)
On September 29, 2016, in line with these improvements referenced above, Plaintiff reported to NP Vengrin that her moods were "generally ok," that she was "not crying all the time," and that she was "work[ing] and tak[ing] care of one house four hours a week." (Id. at 779.) She also reported lower levels of anxiety, although she indicated that she was easily "triggered," and that she felt tired. (Id.) NP Vengrin noted that Plaintiff was experiencing "[l]ess extreme mood swings" on Latuda, and that her affect was "serious," mood was "flat," and thoughts were rational, relevant, and goal directed. (Id.)
Latuda (generic name lurasidone) is "used to treat certain mental/mood disorders (such as schizophrenia, depression associated with bipolar disorder). Latuda, https://www.webmd.com/drugs/2/drug-155134/latuda-oral/details
By October, however, Gallo noted that Plaintiff had transitioned again, this time from "hypomanic" to "depression," that she was reporting a depression level of eight out of 10 and an anxiety level of six out of 10. (Id. at 846.) Gallo further noted that Plaintiff continued to report trauma-related reactions and panic attacks. (Id. at 847.) In November, Plaintiff was once again noted to be "tearful," due to a "range of stressors," and "depressive" (id. at 847), but Gallo noted that she "remain[ed] committed to treatment" and responsive to "redirection and restructuring" in therapy (id.).
On November 7, 2016, Plaintiff was again assessed by Dr. Carino, who noted, on that occasion, that "[o]nce [Plaintiff] spoke[,] she started crying and [she] stated she [could not] talk [without] crying." (Id. at 848.) Dr. Carino further noted that Plaintiff suffered from agoraphobia (although with no psychosis) and that Plaintiff reported mood swings and "being hyper," such that she could neither "concentrate nor remember," with "fast thinking when in [a] manic state." (Id.) Dr. Carino also assessed Plaintiff as having an "[u]nstable mood," and further noted that medication adjustments were once again necessary. (Id.)
C. Procedural History
Plaintiff applied for disability insurance benefits on August 1, 2014. When her application was denied, she requested a hearing before ALJ Gonzalez. ALJ Gonzalez held two hearings, one on October 25, 2016 (id. at 75-97), at which Plaintiff testified, and a second on January 13, 2017 (id. at 47-72), at which Plaintiff again testified, as did a medical expert and a vocational expert. At both hearings, Plaintiff was represented by counsel.
1. Administrative Hearings and Decision Denying Benefits
As Plaintiff testified at both of the two hearings before the ALJ, this summary of her testimony is derived from both transcripts.
Plaintiff testified that, as of the date of the second hearing, she was 49 years old. (Id. at 76-77.) With respect to her education, she testified that she had attended some community college after high school. (Id.) When asked by the ALJ, she confirmed that, since October 2013, she had been working. (Id. at 77.) She later clarified, however, that while she used to own a "pretty good business" in "estate managing" (i.e., "mak[ing] sure that everything was done" in houses whose owners would only "c[o]me up on the weekends") - at one point, in 2010, managing up to 13 houses - this had changed due to "all of [the] physical and mental stuff [that had] happened" to her. (Id. at 81-82.) She testified that, after the AOD, she did continue her business, but only for "one day a week," and that she was no longer able to perform the work herself. (Id. at 58-60, 77-79.) She testified that she was paid a flat fee for letting other workers into her client's houses, "so that [her] client[s] [felt] secure," and she would then pay the workers out of the flat rate she herself had been paid. (Id. at 58, 78-80.) While the other workers worked, she would just "lay down on the sofa." (Id. at 61.) When questioned by the ALJ, however, Plaintiff further clarified that, because of her "migraines and everything," she was at the point where she "[couldn't] even do that anymore." (Id. at 59.)
ALJ Gonzalez seemed to express some incredulity at Plaintiff's testimony that, because of her claimed disability, she was no longer working to the same degree as she had worked before, especially when he pointed out that, in 2010, when Plaintiff purportedly was managing 13 homes, she reported approximately $18,000 in annual income, but in 2014, when Plaintiff purportedly was managing only one home, she nevertheless reported approximately $11,000 in income. (See R. at 59-60, 83.) Plaintiff explained, however, that she "had an apartment in [her] house that [she] was collecting rent from so that was part of the income." (Id. at 60.)
Plaintiff also indicated that her medical issues may have begun as early as in 2011 when, as Plaintiff testified, her "boss" "hung himself" and she had been the one to find him, which caused her to "los[e] [her] mind a little." (Id. at 81-82, 84.) She also downsized her business due to her children - as her first son was born autistic, and "[she] needed to take care of [him]." (Id. at 84.)
With respect to her physical impairments, Plaintiff testified that, in 2005, she had undergone a cervical fusion. (Id. at 87.) For pain management, she testified that she had received injections in her back, and that she was about to undergo surgery "on [her] neck where they burn off the nerves" due to fibromyalgia and "permanent nerve damages from injuries to [her spine]." (Id. at 86.) She also testified that she had "eight to nine discs" that were "damaged in [her] spine," and that she suffered from "severe migraines" that might be associated with her panic attacks. (Id.) She also testified that the nerves in her neck were "permanently damaged," that there was "nothing else they [could] do for the migraines and the neck pain[,] and it cause[d] [her] arms to go numb[,] and [her] hands[,] and they cripple[d] up with arthritis." (Id. at 87.) To treat these issues, she testified that she had received physical therapy, acupuncture, trigger point injections, physical therapy, cortisone shots, and cauterization. (Id.)
With respect to her mental impairments, Plaintiff testified that she was seeing a psychiatrist for agoraphobia, bipolar disorder, depression, anxiety, and panic attacks. (Id. at 85.) She indicated that she was working with a counselor to desensitize her PTSD symptoms "because [she couldn't] leave [her] house." (Id.) She testified to "cry[ing] all the time" and "get[ing] scared a lot." (Id. at 85-86.) She also testified that she was taking Klonopin, Latuda, and Lamictal, but that her treaters were "chang[ing] the meds and the dosage all the time." (Id. at 87.) When asked why her medication and dosage were always being changed, Plaintiff testified that she thought it was because her treaters would "try something and it [would] work[] for a little bit of time" but then it would stop working, such that the dosage would have to be increased or that medication would have to be discontinued or added. (Id. at 87-88.) She testified that it was because her medication regimen had not worked that she had started intensive PTSD therapy. (Id. at 88.)
Plaintiff also testified to her medication's side effects, which she listed as including "brain fog," "sleepiness," perhaps being "manic," stuttering, "cry[ing] all the time," constipation, irritable bowel syndrome, "stomach issues," "severe pain," a "heart attack muscle" (i.e., when the stomach acid and the reflux it triggered caused a nerve in her esophagus to resemble a heart attack), shaking legs, and being "loopy." (Id. at 61-62.)
Plaintiff further detailed her conditions and symptoms, testifying that the fibromyalgia gave her "sharp shooting pains and numbness everywhere," that the agoraphobia meant she that could not leave the house without experiencing panic, and that her migraines were ocular in nature and so severe that she would vomit. (Id. at 62.) She stated that she had tendinitis, bursitis, and arthritis in her shoulders, and that eight vertebrae in her back were either herniated, slipped, or bulging. (Id. at 62-63.) She testified that the recent lesions found on her tail bone meant that she could not sit, and that when she sat for longer than five or 10 minutes, her feet would go numb and she would have sharp shooting pains. (Id. at 63.) Finally, she testified that she had "severe depression and panic and anxiety attacks," that it was "very hard" for her "socially and to keep [her] thoughts straight," and that she had "problems with [her] memory." (Id. at 64.) She stated that "the pain [drove her] kind of crazy," because it was "relentless" and nothing stopped it. (Id.)
With respect to her daily living activities, Plaintiff testified that she lived with her two children (id. at 88), and that she was their only caretaker (id.). She also testified, however, that, because one of her sons walked to school and the other one took a bus, there was "not that much for [her] to have to do." (Id. at 89.) She testified that she received help from her church with cleaning her house, and "from a friend" for grocery shopping. (Id. at 88-89.) For meals, she explained that she relied on "take out" food, and cooked "crock pot meals and things like that." (Id.) She stated that her "laundry [was] just always done by friends" and that, "most of the time[,] [her] kids carr[ied] it." (Id.) She further testified that she owned a car, but that she could only drive for "short periods" due to her panic attacks. (Id. at 91.) She indicated that she generally could not lift anything heavier than 10 pounds (id. at 92), that "[s]ometimes [she couldn't] get out of bed" (and would fall down), and that her ability to walk was better when the weather was warmer (id. at 93-94).
b. Dr. Lorber's Testimony
Dr. Lorber, an orthopedic surgeon, testified as a medical expert at the second hearing. Based on the medical evidence he reviewed, Dr. Lorber testified that, as of the AOD, Plaintiff's impairments were: degenerative disc disease in the cervical and lumbar spine, a meniscal tear in her knee, fibromyalgia, and "complaints regarding the shoulders." (Id. at 51.) Dr. Lorber also testified that, in his opinion, Plaintiff's impairments "neither singularly nor in combination rose to a listing level," including Listing 1.02, 1.04, and 12 (id. at 53), although Plaintiff had "severe impairments which [were] going to reduce [her] very significantly to a limited range of sedentary" (id. at 52-53).
A claimant meets or equals Listing 1.02 if she has a major dysfunction of a joint, characterized by "gross anatomical deformity . . . and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s)" with one of either "[i]nvolvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle) resulting in inability to ambulate effectively" or "involvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.02. A claimant meets or equals Listing 1.04 if she has a disorder of the spine, such as herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, or vertebral fracture, resulting in "compromise of a nerve root" or "the spinal cord" with evidence of either nerve root compression or spinal arachnoiditis. Id. § 1.04. Listing 12 generally deals with various types of mental disorders, including depressive, bipolar and related disorders (12.04) and anxiety and obsessive-compulsive disorders (12.06). Id. § 12.00.
As to Plaintiff's RFC, Dr. Lorber opined that Plaintiff could "lift 10 pounds occasionally and less than 10 pounds frequently"; "stand and walk, and/or walk for a total of no more than two hours per day and not for more than 30 minutes at a time"; "sit for a total of six hours per day not for more than 30 minutes at a time" (although, he clarified that Plaintiff would not need to break from work when changing position from standing to sitting, or from sitting to standing); "frequently reach" in directions other than reaching overhead with her right upper extremity (which she could not do at all); "frequently" handle and fine finger and feel; "occasionally ascend and descend stairs and/or ramps"; "occasionally operate foot pedals with either foot"; and "occasionally stoop and crouch." (Id. at 53-54.) He found that Plaintiff could not "perform any overhead work with [her] right upper extremity"; "climb ladders, scaffolds or ropes; "crawl"; "work at unprotected heights"; or "kneel"; and that she would be required to "avoid exposure to concentrated vibration." (Id.)
c. VE DiStefano's Testimony
ALJ Gonzalez posed hypothetical questions to VE DiStefano, asking whether there were jobs in the national economy that a person with certain limitations could perform. Initially, the ALJ described a hypothetical person of Plaintiff's age, with her education and history, and with the RFC to engage in a range of sedentary exertional work, except that the person could only lift and carry up to 10 pounds occasionally and less than 10 pounds frequently; could stand or walk and/or walk for a total of only two hours in an eight-hour workday, but for no more than 30 minute at a time; could sit for a total of six hours in an eight-hour workday but for no more than 30 minutes at a time, and would take a one-to-two minute break to change position while remaining on task; could frequently reach in all directions, except for reaching overhead with the dominant right upper extremity; could frequently handle, finger, and feel bilaterally; could occasionally stoop and crouch; could occasionally climb and descend stairs and ramps; could understand, remember and carry out simple work; could adapt to routine work-place changes; and could only occasionally interact with supervisors, co-workers, and the general public. (Id. at 68-69.) He further described the hypothetical person as unable to crawl; to work at unprotected heights; to kneel; or to work on ladders, ropes, or scaffolds. (Id. at 67-68.) Based on the described RFC, VE DiStefano determined that, while the hypothetical person could not engage in any of Plaintiff's past work, this hypothetical person could perform the job of document preparer, with 46,532 positions nationally; toy stuffer, with 3,873 positions nationally; table worker, with 2,816 positions nationally; and, surveillance system monitor, with 5,681 positions nationally. (Id. at 69.)
ALJ Gonzalez then asked VE DiStefano whether her determination would change at all, if the ALJ were to add that the hypothetical person could also "frequently flex, extend and rotate the neck," or if the hypothetical person "would be off task 20 percent of the work day." (Id. at 69-70.) VE DiStefano responded that her determination would not change if the hypothetical person could frequently flex, extend and rotate her neck, but that, if the person would be off task for 20 percent of the workday, then the person would not be able to maintain any employment. (Id. at 70.)
On February 28, 2017, the ALJ denied Plaintiff's application for disability insurance benefits during the relevant period. (Id. at 10-24.) The Appeals Council denied Plaintiff's request for review on September 21, 2017. (Id. at 1-6.)
D. The Parties' Pending Motions Before the Court
On April 13, 2018, Plaintiff filed a motion requesting that the Commissioner's decision either be reversed or, alternatively, remanded for a new hearing. (See Dkt. 15, see also Plaintiff's Memorandum of Law in Support of Plaintiff's Motion for Remand for Further Administrative Proceedings, dated Apr. 13, 2018 ("Pl. Mem.") (Dkt. 16)). In support, Plaintiff argues that the ALJ failed to give adequate consideration to an SSA Ruling regarding how certain claims of complex pain should be evaluated; that the ALJ failed to consider Plaintiff's exertional and non-exertional limitations in combination; that the ALJ's assessment of Plaintiff's subjective complaints regarding her symptoms was flawed; that the ALJ did not properly assess Plaintiff's fibromyalgia; and that, for a variety of other reasons, the ALJ's RFC determination was not supported by substantial evidence. (Pl. Mem. at 23-30.)
On July 24, 2018, Defendant filed a cross-motion for judgment on the pleadings in favor of the Commissioner, contending that, in all regards, the ALJ's findings were supported by substantial evidence, and that the decision denying benefits should be affirmed. (See Dkt. 19; see also Memorandum of Law in Support of the Commissioner's Cross-Motion for Judgment on the Pleadings and in Opposition to Plaintiff's Motion for Judgment on the Pleadings, dated July 24, 2018 ("Def. Mem.") (Dkt. 20).)
On August 13, 2018, Plaintiff's counsel filed a reply memorandum in further support of her motion, generally reiterating her position that, for a variety of reasons, the ALJ's RFC determination was not supported by substantial evidence. (See Memorandum of Law in Further Support of Plaintiff's Motion for Remand and in Opposition to Defendant's Cross-Motion for Judgment on the Pleadings, dated Aug. 13, 2018 ("Pl. Reply Mem.") (Dkt. 23).) Defendant filed no reply on the cross-motion.
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
A. Standard of Review
Judgment on the pleadings under Rule 12(c) is appropriate where "the movant establishes 'that no material issue of fact remains to be resolved,'" Guzman v. Astrue, No. 09cv3928 (PKC), 2011 WL 666194, at *6 (S.D.N.Y. Feb. 4, 2011) (quoting Juster Assocs. v. City of Rutland, 901 F.2d 266, 269 (2d Cir. 1990)), and a judgment on the merits can be made "'merely by considering the contents of the pleadings.'" Id. (quoting Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988)).
Judicial review of a decision of the Commissioner is limited. The Commissioner's decision is final, provided that the correct legal standards are applied and findings of fact are supported by substantial evidence. 42 U.S.C. § 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). "[W]here an error of law has been made that might have affected the disposition of the case, [a] court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ." Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (citation omitted)). Thus, the first step is to ensure that the Commissioner applied the correct legal standards. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
The next step is to determine whether the Commissioner's decision is supported by substantial evidence. See Tejada, 167 F.3d at 773. Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). In making this determination, a court must consider the underlying record. The reviewing court does not, however, decide de novo whether a claimant is disabled. See Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002) ("Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, we will not substitute our judgment for that of the Commissioner."); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997). Therefore, the Court is prohibited from substituting its own judgment for that of the Commissioner, even if it might understandably have reached a different result upon a de novo review. See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
"To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers 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." Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). Thus, if the correct legal principles have been applied, this Court must uphold the Commissioner's decision upon a finding of substantial evidence, even where contrary evidence exists and even where the ALJ failed to recite to every piece of evidence that contributed to the decision. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) ("Where there is substantial evidence to support either position, the determination is one to be made by the factfinder."); Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d Cir. 2013) (per curiam); DeChirico v. Callahan, 134 F.3d 1177, 1182-83 (2d Cir. 1998) (affirming decision where substantial evidence supported both sides). In other words, this Court must afford the Commissioner's determination considerable deference and will not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B. The Five-Step Sequential Evaluation
To be entitled to disability benefits under the Act, a claimant must establish his or her "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); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). An individual is considered to be under a disability only if the individual's physical or mental impairments are of such severity that he or she is not only unable to do his or her previous work, but also cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(2)(A).
In evaluating a disability claim, an ALJ must follow the five-step procedure set out in the regulations governing the administration of Social Security benefits. See 20 C.F.R. § 404.1520; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). Throughout the inquiry, the ALJ must consider four primary sources of evidence: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (citations omitted).
The first step of the inquiry requires the ALJ to determine whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If not, at the second step, the ALJ determines whether the claimant has a "severe" impairment or combination of impairments that significantly limits his or her physical or mental ability to do basic work activities. Id. §§ 404.1520(a)(4)(ii), (c). If the claimant does suffer from such an impairment, then the third step requires the ALJ to determine whether this impairment meets or equals an impairment listed 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "Listings"). Id. § 404.1520(a)(4)(iii). If it does, then the claimant is presumed to be disabled. Id.
If the claimant's impairment does not meet or equal a listed impairment, then the ALJ must determine, based on all the relevant evidence in the Record, the claimant's RFC, or ability to perform physical and mental work activities on a sustained basis. Id. § 404.1545. The ALJ then proceeds to the fourth step of the inquiry, which requires the ALJ to determine whether the claimant's RFC allows the claimant to perform his or her "past relevant work." Id. § 404.1520(a)(4)(iv). Finally, if the claimant is unable to perform his or her past relevant work, the fifth step requires the ALJ to determine whether, in light the claimant's RFC, age, education, and work experience, the claimant is capable of performing "any other work" that exists in the national economy. Id. §§ 404.1520(a)(4)(v), (g).
On the first four steps of the five-step evaluation, the claimant generally bears the burden of establishing facts to support his or her claim. See Berry, 675 F.2d at 467 (internal citation omitted). At the fifth step, the burden shifts to the Commissioner to "show that there is work in the national economy that the claimant can do." Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). The Commissioner must establish that the alternative work "exists in significant numbers" in the national economy and that the claimant can perform this work, given his or her RFC and vocational factors. 20 C.F.R. § 404.1560(c)(2). Where the claimant only suffers from exertional impairments, the Commissioner can satisfy this burden by referring to the Medical-Vocational Guidelines, set out in 20 C.F.R. Pt. 404, Subpt. P, App. 2 (the "Guidelines"). Where, however, the claimant suffers non-exertional impairments, such as visual impairment, psychiatric impairment, or pain, see Id. § 404.1569a, that "'significantly limit the range of work permitted by his [or her] exertional limitations,' the ALJ is required to consult with a vocational expert," rather than rely exclusively on these published guidelines. Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d 601, 604-05 (2d Cir. 1986) (internal citations omitted)).
C. Assessment of a Claimant's Subjective Complaints
Assessment of a claimant's subjective complaints about his or her symptoms or the effect of those symptoms on the claimant's ability to work involves a two-step process. Where a claimant complains that certain symptoms limit his or her capacity to work, the ALJ is required, first, to determine whether the claimant suffers from a "medically determinable impairment[ ] that could reasonably be expected to produce" the symptoms alleged. 20 C.F.R. § 404.1529(c)(1). Assuming the ALJ finds such an impairment, then the ALJ must take the second step of "evaluat[ing] the intensity and persistence of [the claimant's] symptoms," considering "all of the available evidence," to determine "how [the] symptoms limit [the claimant's] capacity for work." Id. In doing so, the ALJ must consider all of the available evidence, and must not "reject [ ] statements about the intensity and persistence of [ ] pain or other symptoms . . . solely because the available objective medical evidence does not substantiate [the claimant's] statements." Id. Instead, where the claimant's contentions regarding his or her symptoms are not substantiated by the objective medical evidence, the ALJ must evaluate the claimant's statements in relation to the objective evidence and other evidence, in order to determine the extent to which the claimant's symptoms affect his or her ability to do basic work activities. Id. § 404.1529(c)(3)(i)-(vii), (4); Social Security Ruling ("SSR") 16-3p.
Effective March 28, 2016, SSR 16-3p superseded SSR 96-7p, which had required the ALJ to make a finding on the credibility of the claimant's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms, where those statements are not substantiated by objective medical evidence. See SSR 96-7p (S.S.A. July 2, 1996). The new Ruling, SSR 16-3p, eliminates the use of the term "credibility" from the SSA's sub-regulatory policy, in order to "clarify that subjective symptom evaluation is not an examination of an individual's character." SSR 16-3p, 2016 WL 1237954 (S.S.A. Mar. 28, 2016). Instead, adjudicators are instructed to "consider all of the evidence in an individual's record when they evaluate the intensity and persistence of symptoms after they find that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms." Id. at *2. Both the two-step process for evaluating an individual's symptoms and the factors used to evaluate the intensity, persistence and limiting effects of an individual's symptoms remain consistent between the two Rulings. Compare SSR 96-7p with SSR 16-3p. As the ALJ's decision in this matter was issued after the new Ruling went into effect, this Court will review the ALJ's evaluation of Plaintiff's statements regarding the intensity of her symptoms under the later Ruling, SSR 16-3p.
While an ALJ "is required to take [a] claimant's reports of pain and other limitations into account" in evaluating his or her statements, an ALJ is "not required to accept the claimant's subjective complaints without question." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). To the extent the ALJ determines that the claimant's statements are not supported by the medical record, however, the ALJ's decision must include "specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence," and the reasons must be "clearly articulated" for a subsequent reviewer to assess how the adjudicator evaluated the individual's symptoms. SSR 16-3p. The factors that an ALJ should consider in evaluating the claimant's subjective complaints, where they are not supported by objective medical evidence alone, are: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medications taken to alleviate the symptoms; (5) any treatment, other than medication, that the claimant has received for relief of the symptoms; (6) any other measures that the claimant employs to relieve the symptoms; and (7) other factors concerning the claimant's functional limitations and restrictions as a result of the symptoms. See 20 C.F.R. § 404.1529(c)(3)(i)-(vii).
D. Duty To Develop the Record
"Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record," Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)), and failure to develop the record may be grounds for remand, Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999); accord Craig, 218 F. Supp. 3d at 262 (noting that "[r]emand is appropriate where this duty is not discharged"). "[W]here there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history 'even when the claimant is represented by counsel.'" Rosa, 168 F.3d at 79 (quoting Perez, 77 F.3d at 47).
The SSA regulations explain this duty to claimants this way:
Before we make a determination that you are not disabled, we will develop your complete medical history . . . [and] will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports. . . . 'Every reasonable effort' means that we will make an initial request for evidence from your medical source and, at any time between 10 and 20 calendar days after the initial request, if the evidence has not been received, we will make one follow up request to obtain the medical evidence necessary to make a determination.20 C.F.R. §§ 404.1512(b)(1), (b)(1)(i).
Where there are no "obvious gaps" in the 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, 168 F.3d at 79 n.5.
II. THE ALJ'S DECISION
On February 28, 2017, the ALJ issued a decision denying Plaintiff disability insurance benefits on the ground that Plaintiff was not disabled under the Act. (See R. at 10-24.)
A. Steps One Through Three of the Sequential Evaluation
At Step One, the ALJ determined that Plaintiff had not engaged in substantial gainful activity from the AOD of October 10, 2013 through the date Plaintiff was last insured, December 31, 2015. (Id. at 12.) Specifically, the ALJ found that, although Plaintiff had worked after the AOD, her work activity did not rise to the level of "substantial gainful activity" because her earnings were below the presumptive level. (Id.)
At Step Two, the ALJ determined that Plaintiff suffered from these severe impairments: depression, ADHD, bipolar disorder, PTSD, fibromyalgia, migraines, irritable bowel syndrome, degenerative disc disease of the cervical and lumbar spines, chronic pain syndrome, right shoulder tendinopathy, and a supraspinatus tear. (Id.) In so finding, the ALJ noted that each of these impairments "significantly affect[ed]" Plaintiff's ability to perform basic work activity and that these impairments had lasted, or could be expected to last, 12 months or longer. (Id.)
At Step Three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled an impairment included in Listings 1.02 (major dysfunction of a joint), 1.04 (disorders of the spine), 12.04 (depressive, bipolar and related disorders), or 12.06 (anxiety and obsessive-compulsive disorders). (Id. at 12-14.)
With respect to Listings 1.02 and 1.04, the ALJ specifically found that there was no evidence in the Record of "a gross anatomical deformity" or "signs of chronic joint pain and stiffness, with corresponding range of motion limitations," no evidence of "nerve root impingement characterized by neuro-anatomic distribution of pain with corresponding loss of sensory or reflex loss," and no evidence of "spinal arachnoiditis or spinal stenosis resulting in pseudoclaudication." (Id. at 13.) Further, the ALJ noted that Plaintiff maintained her ability to ambulate and to perform fine and gross movements. (Id.)
With respect to Listings 12.04 and 12.06, the ALJ considered several factors in reaching his determination that Plaintiff's mental impairments did not, either singly or in combination, meet or equal the listed impairments. First, the ALJ found that Plaintiff only had "moderate limitations" in "understanding, remembering, [and] applying information," given that, while Plaintiff had alleged "difficulty remembering generally and completing tasks," she had also stated that she could "prepare meals, pay bills, go to doctor's appointments, take medications, shop, and drive." (Id.) In making this finding, the ALJ further noted that the Record showed Plaintiff to be able to "provide information about her health, describe her prior work history, follow instructions from healthcare providers, comply with treatment . . . . and respond to questions from medical providers." (Id.)
Second, the ALJ found that Plaintiff had "moderate limitations" in her ability to interact with others; on this point, the ALJ noted that, while Plaintiff had alleged "difficulty engaging in social activities and has agoraphobia," she had also stated that she was "able to shop, spend time with friends and family, and live with others." (Id.) The ALJ further noted that, based on the Record, Plaintiff "had a good rapport with providers, was described as pleasant and cooperative, [] had good interactions with non-medical staff," had "social supports" and had engaged in positive activities with her friends. (Id.)
Third, the ALJ determined that Plaintiff had "moderate limitations" in her ability to "concentrate, persist, or maintain pace." (Id.) While acknowledging Plaintiff's contention that she was limited in her ability to concentrate generally and to maintain a regular work schedule, the ALJ also noted that Plaintiff had stated that she was able to drive, prepare meals, watch television, read, manage her funds, and handle her own medical care. (Id. at 13-14.)
Finally, the ALJ found that Plaintiff only had "mild limitations" in her ability to adapt or manage herself. (Id. at 14.) In this area, he found that, despite Plaintiff's assertions that she had difficulty handling change and managing her mood, she had indicated that she could handle self-care and personal hygiene, care for her children, and get along with her caregivers, and, further, the medical evidence objectively showed that Plaintiff had appropriate grooming and hygiene, did not indicate problems getting along with providers and staff, and that had "normal mood and affect on occasion." (Id.) The ALJ further noted that Plaintiff "was able to move during the period of review and ran her own cleaning business." (Id.)
In addition, with respect to his conclusion that Plaintiff's mental impairments did not meet or equal a listed impairment, the ALJ reasoned that the evidence did not establish "a serious mental disorder that, despite ongoing treatment, would still leave [Plaintiff] with a minimal capacity to adapt to changes in the environment or to the demands that [were] not already part of her daily life," as would be required to meet the Listings. (Id.) Specifically, the ALJ noted that Plaintiff lived with her children independently, had moved to a new residence during the relevant period, had switched healthcare providers multiple times, and ran her own cleaning business. (Id.) In further support of his conclusion, the ALJ pointed to Plaintiff's "handl[ing] all of her personal needs, manag[ing] her own healthcare," shopping and cooking, and "car[ing] for her two younger children, one of whom ha[d] special needs." (Id.)
B. The ALJ's Assessment of Plaintiff's RFC
The ALJ determined that Plaintiff had the RFC to perform sedentary work with the following limitations: Plaintiff could not stand for more than 30 minutes at a time; could only sit for 30 minutes at a time and would require a 1-2 minute break to change positions while remaining on task; Plaintiff could not reach overhead with the dominant right upper extremity, but could frequently reach in all other directions; Plaintiff could frequently handle, finger, and feel with the bilateral upper extremities, but was required to avoid concentrated exposure to vibratory noises; Plaintiff could occasionally stop, crouch, climb, and descend ramps and stairs, and push, pull, and use foot pedals bilaterally, but could not climb ladders, ropes, or scaffolds; Plaintiff could not crawl, kneel, or work from unprotected heights; Plaintiff could frequently flex, extend, and rotate her neck; and Plaintiff could understand, remember, and carry out simple work and adapt to routine workplace changes, as well as occasionally interact with supervisors, coworkers, and the general public. (Id. at 14-15.)
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).
In making this RFC determination, the ALJ concluded that, while Plaintiff's medically determinable impairments could reasonably be expected to cause her alleged symptoms, Plaintiff's statements at the hearing concerning the intensity, persistence, and limiting effects of her symptoms were not "entirely consistent with the medical evidence and other evidence in the record." (Id. at 15.) The ALJ then detailed his review of the Record by summarizing some of the medical assessments and opinions of Plaintiff's treating sources from 2014 through 2016. (Id. at 17-19.) He pointed out that the records "closest in time to [Plaintiff's] alleged onset of disability present an inconsistent picture of her functioning compared to her allegations." (Id. at 16.) Notably, in his review of the medical evidence, the ALJ found that the medical examination notes did not reflect that Plaintiff had endorsed, to her treaters, the same level of functional loss that she later described at the hearing, and he indicated that, generally, her medical examination results were "largely unremarkable." (Id. at 16.) He also noted that Plaintiff had been working "at least part-time" during the relevant period and had been "living independently with her two younger children." (Id.) The ALJ therefore concluded that the medical records did "not reflect the degree of functional loss alleged." (Id.) Furthermore, with respect to those medical notes in the Record that did "show an overall reduction in functioning," the ALJ stated that such reductions were properly accounted for in the RFC determination. (Id.)
In assessing Plaintiff's subjective complaints, the ALJ provided several reasons why, in his view, Plaintiff's allegations regarding "the nature, intensity, persistence, [and] limiting effects of [her] symptoms [were] not consistent" with the medical evidence of record. (Id. at 19.)
First, the ALJ found that Plaintiff had described daily living activities that were not as limited as one would expect; in particular, the ALJ again cited to Plaintiff's caring for her young children, "running a cleaning company throughout the period of review," and having been "able to pack and move her family." (Id. at 20.)
Second, the ALJ found that, although Plaintiff had undergone treatment for her impairments, "various reports showed that her pain was generally well controlled with her medi[c]ation and injection regimen." (Id.)
Third, the ALJ found that the Record "did not contain any opinions from treating or examining physicians indicating that [Plaintiff] was 'currently disabled.'" (Id.)
Fourth, the ALJ found that Plaintiff's work history had been sporadic prior to the AOD, and again noted that Plaintiff had continued to work during the relevant period, which, according to the ALJ, "raise[d] a question as to whether [Plaintiff's] allegations regarding her functional limitations are as severe as she allege[d]." (Id.)
Fifth, the ALJ found that Plaintiff's "symptoms and related limitations [were] not consistent with the evidence of record," in that the Record did not show reduced joint motion, muscle spasm, sensory deficit, or motor disruption associated with Plaintiff's testimony regarding her pain and functional limitations; he therefore concluded that the medical record was not supportive of Plaintiff's statements. (Id.)
In making his RFC determination, the ALJ wrote that he gave "great weight" to the opinion of Dr. Lorber, who had reviewed Plaintiff's medical history files and had provided opinion testimony at the second hearing. (Id.) The reasons for this, the ALJ wrote, were that Dr. Lorber's opinion was consistent with the Record; Dr. Lorber was an orthopedic surgeon, such that he had specialized expert medical knowledge relevant to Plaintiff's impairments; and Dr. Lorber was familiar with the disability program. (Id.)
The ALJ assigned "some weight" to the consultative examination opinions of Drs. Figueroa (regarding Plaintiff's physical impairments) and Stack (regarding Plaintiff's mental impairments), as well as to the opinion of the state agency psychological consultant, Dr. Bruni. With respect to Dr. Figueroa, the ALJ credited Dr. Figueroa's findings that Plaintiff had "moderate limitations," based on her "slow gait, reduced range of motion throughout her spine and shoulders, and shoulder spasms," but taking into account the fact that Plaintiff could "heel and toe walk, had a negative straight-leg raise, and full strength." (Id. at 21.) With respect to Dr. Stack, the ALJ credited Dr. Stack's finding that Plaintiff "could perform simple work with some additional limitations such as relating adequately to others or dealing with stress." (Id.) The ALJ, however, did not credit Plaintiff's reports to Dr. Stack that she suffered daily panic attacks and could not leave her house alone, as, according to the ALJ, Plaintiff "denied having any mental health symptoms on various occasions to multiple providers and she routinely traveled alone." (Id.) The ALJ then gave Dr. Bruni's opinion "some weight" because it was generally in line with Dr. Stack's opinion.
The ALJ also purportedly gave "some weight" to the opinion evidence contained in the 2014 MSS of PA Gilbert, one of Plaintiff's primary care providers (id.), although, in the end, it appears that the ALJ actually gave little, if any, weight to PA Gilbert's stated views. At first, the ALJ appeared to credit, at least somewhat, PA Gilbert's finding that Plaintiff could perform "an eroded [form] of light exertional work with additional non-exertional limits such as decreased attention and concentration." (Id. at 21.) The ALJ, however, then seemingly went on to discount this opinion generally as "inconsistent with the record" because, according to the ALJ, Plaintiff had shown no physical signs of distress or functional loss during multiple examinations, and had continued to run her own business during the relevant period. (Id.) Moreover, the ALJ noted that PA Gilbert was not an acceptable medical source and therefore lacked the specialized medical knowledge necessary to assess Plaintiff's functioning, in relation to her medically determinable impairments. (Id.)
Finally, the ALJ assigned only "slight weight" to the functional assessment completed by Plaintiff's physical therapist, Lagunda, on March 26, 2016, which the ALJ summarized to indicate that Plaintiff could perform an eroded form of light exertional work. (Id.) In discounting this assessment, the ALJ stated that it was not consistent with the Record which, according to the ALJ, showed that Plaintiff had greater limitations than were provided for in Lagunda's assessment. (Id. at 21-22.) The ALJ then clarified, though, that Plaintiff's limitations were no greater than those in the ALJ's RFC determination. (Id. at 22.)
C. Steps Four and Five of the Sequential Evaluation
At Step Four, the ALJ determined that Plaintiff was unable to perform her past relevant work as a flagger, as a flagger was defined at the light exertional and unskilled levels, and Plaintiff was limited to an eroded form of sedentary work. (Id.)
At Step Five, the ALJ determined that Plaintiff's ability to perform all or substantially all of the requirements of sedentary work was impeded by additional limitations. (See id. at 23.) The ALJ, however, relied on VE DiStefano's testimony that, even with those additional limitations, there were jobs in the national economy for an individual with Plaintiff's age, education, work experience, and RFC, including the job positions of document preparer (DOT No. 249.587-018); stuffer (DOT No. 731.685-014); table worker (DOT No. 739.687-182); and surveillance-system monitor (DOT No. 379.367-010). (Id.) Based on the VE's testimony, the ALJ concluded that, through Plaintiff's last insured date, considering her age, education, work experience, and RFC, Plaintiff had been capable of making a successful adjustment to other work that existed in significant numbers in the national economy. (Id.) Accordingly, the ALJ concluded that Plaintiff had not been disabled during the relevant period. (Id. at 24.)
III. REVIEW OF THE ALJ'S DECISION
This Court addresses below each of Plaintiff's arguments in support of her motion for remand or reversal. In sum, this Court finds that, while Plaintiff's first two arguments - i.e., that the ALJ improperly evaluated her impairments under SSR 03-2p and SSR 85-28 - are unavailing, her remaining three arguments are persuasive and warrant remand. Specifically, this Court recommends that this case be remanded for further proceedings based on (1) the ALJ's improper assessment of Plaintiff's subjective complaints of pain and other symptoms, and his associated failure to account for these complaints adequately in the RFC determination; (2) the ALJ's failure, in making his RFC determination, to assess the limiting effects of Plaintiff's fibromyalgia, even after he had determined her fibromyalgia to be a "severe impairment"; and (3) the fact that the ALJ's RFC determination (and thus his ultimate decision that Plaintiff was not disabled under the Act) cannot be found to have been supported by substantial evidence, both in light of the issues noted above and because the ALJ included specific limitations in the RFC without identifying the source in the Record from which he had derived those limitations.
A. The ALJ Did Not Fail To Evaluate Plaintiff's Impairments Adequately Under SSR 03-2p and SSR 85-28.
1. SSR 03-2p (Regarding Complex Regional Pain Syndrome)
As an initial matter, Plaintiff argues that the ALJ improperly failed to consider her chronic pain (and also the effects of the medication she was prescribed to treat her chronic pain) under SSR 03-2p. (Pl. Mem., at 23.) Defendant does not address this argument. Nevertheless, because SSR 03-2p only addresses claimants with complex regional pain syndrome ("CRPS"), and because Plaintiff has pointed to no evidence in the medical record that she was ever diagnosed with this condition (and this Court, independently, has found no such evidence), Plaintiff cannot prevail on this argument.
SSR 03-2p does not address chronic pain or chronic pain syndrome, generally, but rather explains the SSA's policies for evaluating claims for disability on the specific basis of CRPS (which is also referred to as reflex sympathetic dystrophy syndrome ("RSDS")). See SSR 03-02p ("chronic pain syndrome most often resulting from trauma to a single extremity"); Roe v. Colvin, No. 1:13-cv-1065 (GLS), 2015 WL 729684, at *2 (N.D.N.Y. Feb. 19, 2015) (describing the particular disability analysis under SSR 03-2p where plaintiff had been diagnosed with CRPS). Here, Plaintiff did not specifically claim, either in her initial disability application or in her later submissions, that she had CRPS during the period under review. Moreover, while the ALJ did find Plaintiff to have had chronic pain syndrome, and further found it to be a severe impairment at Step Two of the sequential evaluation, he did not similarly find Plaintiff to have had CRPS. See Guarino v. Commissioner of Soc. Sec., No. 7:07-cv-1252 (GLS/VEB), 2010 WL 199721, at *5 n.10 (N.D.N.Y. Jan. 14, 2010) (noting the distinction between a physician's diagnosis of chronic pain syndrome and RSDS). Given the specificity of the SSA Ruling, and the fact that the courts have treated chronic pain and CRPS as distinct, this Court cannot find that Plaintiff was entitled to any special disability analysis under SSR 03-2p. See, e.g., McGinley v. Berryhill, No. 17cv2182 (JGK)(RWL), 2018 WL 4212037, at *16 (S.D.N.Y. Jul. 30, 2018) (noting that CRPS is "a subset of chronic pain" and discussing whether plaintiff had been properly diagnosed with CRPS such that the ALJ should have considered it during his disability analysis).
SSR 03-2p states that "[c]laims in which the individual alleges [CRPS] are adjudicated using the sequential evaluation process, just as for any other impairment," although it also requires the Commissioner to consider certain factors that are unique to the condition. SSR 03-2p.
2. SSR 85-28 (Regarding Consideration of Impairments in Combination)
Although Plaintiff concedes that the ALJ "did not find any alleged impairments to be non-severe" (Pl. Mem., at 23), she nonetheless contends that the ALJ failed to follow SSR 85-28, which sets out the SSA's policy "for determining when a claimant's impairment(s) may be found 'not severe,'" SSR 85-28. Noting that this Ruling indicates that "all impairments of record, both severe and non-severe, must be considered in combination with each other, in part because a non-severe impairment may combine with other non-severe impairments to form a severe impairment" (Pl. Mem., at 23 (citing SSR 85-28 and 20 C.F.R § 404.1523)), Plaintiff seems to be citing this Ruling as slightly misplaced support for an argument that the ALJ erred by failing to give adequate consideration to how Plaintiff's functional limitations, in combination, affected her RFC (see id. (asserting that "there is no evidence that [the ALJ] considered both the exertional and non-exertional impairments in combination with each other"); see also, e.g., Burgin v. Astrue, 348 F. App'x 646, 648 (2d Cir. 2009) (Summary Order) (concluding, inter alia, that ALJ failed to consider how plaintiff's combined mental disorders would affect factors important in the RFC determination)). Apparently viewing Plaintiff's argument in this light, Defendant maintains that the ALJ did consider Plaintiff's limitations in combination, at Steps Two through Five of the sequential evaluation. (See Def. Mem., at 24-25.) Defendant has the better argument on this particular issue.
As clearly set out in his decision, the ALJ did consider, singly and in combination, the exertional and non-exertional limitations that he found Plaintiff to have. At Step Two, the ALJ determined that Plaintiff had both severe mental and physical impairments; and then, at Step Three, as described above, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met one of those included in Listings 1.02, 1.04, 12.04, or 12.06. More to Plaintiff's point, when making the RFC determination, the ALJ plainly considered and incorporated, in combination, both exertional and non-exertional impairments, including Plaintiff's ability to sit, stand, reach, push, pull, crawl and kneel, as well as her ability to understand, remember, and carry out simple work, adapt to routine workplace changes, and interact with others. (Id. at 14-15.)
In other words, although - as discussed further below - the ALJ may have failed to give adequate credit to Plaintiff's complaints of pain, based on her fibromyalgia, the ALJ did not err by failing to consider, in combination, the symptoms and limitations that he did credit. Plaintiff, therefore, has not demonstrated error in this regard. See Novack v. Commissioner of Soc. Sec., No. 17-cv-6704 (BMC), 2019 WL 187300, at *3 (E.D.N.Y. Jan. 14, 2019) (holding that it was plain that the ALJ did consider the impairments in combination when determining the plaintiff's RFC).
B. The ALJ Erred in His Assessment of Plaintiff's Subjective Complaints of Pain and Other Symptoms.
As summarized above, the ALJ set forth five specific reasons that purportedly justified his discounting of Plaintiff's subjective complaints, but, relying on SSR 96-7p and 95-5p (regarding how an ALJ is supposed to evaluate a claimant's credibility), Plaintiff contends that those stated reasons were insufficient. In general, Plaintiff contends that, having initially found that she had a combination of medically determinable physical and emotional impairments that could reasonably be expected to produce her alleged symptoms, the ALJ needed to provide an adequate justification for his later finding that Plaintiff's statements regarding the limiting effects of her pain were not entirely consistent with the medical evidence. More specifically, Plaintiff argues that this later finding was required to be set forth "with sufficient specificity to permit intelligible plenary review of the [R]ecord" and that the ALJ failed to do this when he ignored medical evidence in the Record; cited instead to "ordinary tasks of life that the Plaintiff could do," but that were unrelated to her ability to perform substantial gainful activity; and neglected to resolve "alleged inconsistencies relative to Plaintiff's daily activities and the medical evidence that tend[ed] to support her claims." (Pl. Mem., at 24-25.)
Defendant correctly points out that Plaintiff's reliance on SSR 95-5p is misplaced, as that Ruling was superseded by SSR 96-7, which was then superseded by SSR 16-3p on March 28, 2016. (Def. Mem., at 25.) Nonetheless, as set out above (see supra, at n.34), the evaluation process in which the ALJ was required to engage, in considering Plaintiff's subjective complaints, was not substantially different than that contemplated by the earlier Ruling.
Defendant argues that, as it is "well within the discretion of the Commissioner to evaluate the credibility of [a claimant's] testimony and render an independent judgment in light of the medical findings and other evidence regarding the true extent of the symptoms alleged," the Court should defer to the ALJ's assessment of Plaintiff's subjective complaints. (Def. Mem., at 23.) Defendant further maintains that, in any event, in deciding that the evidence did not fully support Plaintiff's alleged symptoms, the ALJ properly analyzed the factors set out in 20 C.F.R § 404.1529(c)(3), including Plaintiff's "extensive daily activities" and the treatment that Plaintiff received, and appropriately compared Plaintiff's alleged symptoms with the clinical and objective findings contained in the Record. (See id., at 23-24.)
Plaintiff's arguments here are compelling. While the ALJ indicated that, in accordance with the recently enacted SSR 16-3p, he had engaged in an evaluation of Plaintiff's subjective complaints about her symptoms in light of the Record as a whole, the five reasons he gave for discounting Plaintiff's complaints - as discussed, in turn, below - were not fairly derived from Record. Rather, the ALJ improperly mischaracterized and misstated evidence in the Record, such that this Court cannot agree that his assessment was supported by substantial evidence. See, e.g., Horan v. Astrue, 350 Fed. Appx. 483, 484 (2d Cir. 2009) (noting that the ALJ's adverse credibility determination was based on an inconsistency which did not exist); Pratts v. Chater, 94 F.3d 34, 38 (2d Cir. 1996) (finding that ALJ made several errors in assessing the evidence to support the ALJ's disability determination); Ryan v. Astrue, 5 F. Supp. 3d 493, 511 (S.D.N.Y. 2014) (finding that the ALJ's discrediting of the plaintiff's pain symptoms ignored evidence and therefore was not supported by substantial evidence).
1. Plaintiff's Daily Living Activities
The first reason given by the ALJ to discount Plaintiff's subjective complaints was that those complaints were not consistent with the Record regarding Plaintiff's ability to engage in activities of daily living, specifically her caring for her children and running a cleaning company. (See R. at 20.) The Record, however, consistently reflects that Plaintiff was limited in her ability to engage in such activities due to ongoing pain and other symptoms, and the ALJ erroneously failed to acknowledge and reconcile this evidence that was not supportive of his position. Plaintiff testified, for example, that, although she did take care of her children, the amount of care she actually provided was minimal, and that she received help from her church and a friend in cleaning her house, grocery shopping, and doing laundry. (See id. at 88-89.) Further, the medical treatment notes of NP Lundy indicate that, although Plaintiff had helped to move her family to an apartment after they were evicted, she had suffered increased neck pain and muscle spasms as a result. (Id. at 623-25.) Moreover, Plaintiff testified that her ability to run her business and perform work relating to it was drastically diminished by her impairments (see id. at 58-60, 77-79) - testimony that, as discussed further below, was supported by other evidence in the Record.
It should also be noted that, even if Plaintiff was able to perform certain activities of daily living, this would not have precluded a finding of disability, especially if she could only perform those activities to a limited extent or needed assistance to engage in them. See Balsamo, 142 F.3d at 81 (2d Cir.1998) ("We have stated on numerous occasions that 'a claimant need not be an invalid to be found disabled' under the Social Security Act."); Stellmaszyk v. Berryhill, No. 16cv09609 (DF), 2018 WL 4997515, at *4 (S.D.N.Y. Sept. 28, 2018); Woodford v. Apfel, 93 F. Supp. 2d 521, 529 (S.D.N.Y. 2000). In this instance, consistent reports that Plaintiff's daily living activities were limited, and that she required assistance to accomplish the described tasks, were erroneously ignored by the ALJ, without explanation.
2. Plaintiff's Pain Management
The second reason given by the ALJ for discounting Plaintiff's subjective accounts of pain was that Plaintiff's pain was, purportedly, "generally well controlled with her medi[c]ation and injection regimen." (R. at 20.) Again, the Record, in numerous places, strongly suggests the contrary. On this point, the ALJ selectively cited to only a few notes in the Record that indicated that Plaintiff's pain was "well controlled" (id. (citing to the medical note from Dr. Laurent on Oct. 6, 2016 (see id. at 859))), or that Plaintiff's pain levels had improved after injections were performed (id. (citing to medical notes from StartNew and Orthopedic Associates on Jan. 5, 2016 and Sept. 8, 2016, indicating improvement in pain (see id. at 667, 808))). A single, temporary period of control of a claimant's condition, however, does not indicate that claimant's condition was not disabling. Zettlemoyer ex rel. P.M.R. v. Astrue, 945 F. Supp. 2d 387, 390 (W.D.N.Y. 2013). Similarly, "a temporary improvement in the claimant's condition does not warrant a finding that the individual is no longer disabled." Coughlin v. Sec'y of Health and Human Servs., 671 F. Supp. 138, 141 (E.D.N.Y. 1987).
Further, a comprehensive review of the same medical treatment notes that the ALJ cited reveals numerous references by Plaintiff's treaters suggesting that, in large measure, Plaintiff's pain was persistent and often not responsive to treatment. For example, the treatment records contain a notation that Plaintiff's pain was "worse with prolonged sitting, standing, or turning her head towards the left, right or looking up and down and with lifting," with a recommendation that an ablation procedure be performed (see R. at 808); a notation that Plaintiff's medication regimen included morphine, which caused "severe sleepiness"; and a notation, made even at a point where it seemed that Plaintiff's overall pain levels had temporarily decreased, that Plaintiff's headaches and migraines were still severe (i.e., rated at a nine out of 10) and exacerbated by "any movement requiring repeatedly bending (i.e., cleaning)," and accompanied by nausea or vomiting (id. at 667). Again, the ALJ conspicuously omitted these portions of the medical evidence, and failed to discuss or reconcile them with Plaintiff's testimony.
For another example of the ALJ's selective use of the medical evidence, the ALJ supported his view that Plaintiff's chronic pain symptoms were "well controlled" by pointing to the treatment note made by Dr. Laurent in October of 2016. (Id. at 20 (citing to the medical note from Dr. Laurent on Oct. 6, 2016 (see id. at 859)).) Not only is this treatment note well outside the relevant period, and not only did Dr. Laurent examine Plaintiff only once for a routine preventative exam, but Dr. Laurent, in making her findings, seemed to rely on Plaintiff's being treated for her numerous conditions by specialists - including treatment for her pain by a "pain management specialist" (by which she presumably meant Dr. Bruma, at StartNew). (See id. at 860.) Omitted by the ALJ in his discussion, Dr. Bruma herself then found, approximately one month after Dr. Laurent's findings, that Plaintiff's neck and knee pain was a seven out of 10; that her shoulder pain was an eight out of 10; and that a physical examination revealed tenderness and reduced strength in the spine, spasming in the paraspinal muscles, and reduced range of motion with pain - all leading Dr. Bruma to order another X-ray and MRI to aid in the evaluation of what she characterized as Plaintiff's worsening radicular symptoms and pain. (Id. at 868-70.)
3. Lack of Opinions in the Record From Medical Professionals , Indicating that Plaintiff Was Disabled
Next, in support of his discounting of Plaintiff's subjective complaints, the ALJ reasoned that the Record did not contain any opinions from Plaintiff's treaters or examiners that Plaintiff was disabled. (See id. at 20.) As it is the role of the Commissioner, however, and not of the claimant's treaters, to determine disability under the Act, see Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999), this fact, standing alone, cannot support the ALJ's decision to discount Plaintiff's subjective complaints of pain and other symptoms. This is especially true in light of the fact that the Record contains extensive medical treatment notes, documenting that Plaintiff was reporting significant pain throughout the relevant period.
In addition, with respect to Plaintiff's chronic pain in particular, it does not appear that the ALJ sought to develop the Record by soliciting a medical source statement from Dr. Bruma, the pain management specialist who, during a portion of the relevant period, directly oversaw Plaintiff's treatment for pain. To the extent there was any ambiguity in the Record regarding the severity of Plaintiff's pain, the degree to which it was controlled by medication or otherwise, or its potentially disabling effects, the ALJ should have attempted to obtain an opinion on those issues from the treating physician with the greatest insight into Plaintiff's pain treatment regimen and her response to that regimen. Merritt v. Commissioner of Soc. Sec., No. 15-CV-6633-CJS, 2016 WL 6246436, at *9 (W.D.N.Y. Oct. 26, 2016) (where plaintiff had testified to experiencing constant pain, the ALJ erred in failing to develop the record, which led to an "incomplete picture of [plaintiff's] condition"). Certainly, the ALJ should have made such an attempt to develop the Record before discounting Plaintiff's reports of pain on the stated ground that the Record, as it stood, lacked an opinion from any medical professional that Plaintiff's pain was disabling.
4. Plaintiff's Work History
Circling back to a point that he made when commenting generally on Plaintiff's daily living activities, the ALJ's fourth stated reason for discounting Plaintiff's subjective complaints was that her continued ability "to work during the period of review, running her own business" called into question whether her asserted functional limitations were as severe as she alleged. (Id. at 20.) The ALJ's characterization of Plaintiff's ability to "run a business," however, was somewhat disingenuous, as Plaintiff testified at the hearing that, by that time, she was no longer "running her own business," as much as she was paying others to engage in the de minimis amount of work she was still able to book from a dwindled client base. (Id. at 61.) Further, the Record reflects that Plaintiff's earned income had been substantially reduced in 2014 and 2015. (See id. at 59-60, 83.) While, as noted above (see supra, at n.31), the ALJ, at the hearing, expressed some skepticism that Plaintiff could have earned as much as $11,000 in 2014 if her business had been reduced to the extent she claimed (see id. at 83), Plaintiff testified that not all of her self-reported income was derived from the cleaning business, as she had also collected rent from an apartment in her home, prior to having been evicted (see id. at 59-60). Not only did the ALJ disregard this evidence and mischaracterize Plaintiff's testimony, but he also ignored other evidence in the Record tending to support that Plaintiff had a diminished capacity to run her business.
The Record reflects that Plaintiff's treaters, as well as the consultative examiners, consistently noted that Plaintiff had a reduced ability to perform activities of daily living (or that her ability to perform activities varied based on her pain level), and often further noted that Plaintiff was "unemployed" during the relevant period. (See, e.g., id. at 417-18 (Dr. Stack noting that Plaintiff "struggle[ed] with cleaning, laundry, and shopping because of physical pain" and finding that her psychiatric problems "may significantly interfere with [her] ability to function on a daily basis"), 421 (Dr. Figueroa noting that Plaintiff's professed ability to cook, clean, do laundry, and shop all depended on "her pain level and her mental state"), 668 (noting that Plaintiff was "unemployed"), 673 (same), 684 (noting that Plaintiff was unable to "exercise and unable to perform household activities"), 694-95 (noting that Plaintiff was unable to "exercise and unable to perform household activities" and, again, that she was "unemployed.") The ALJ erroneously failed to acknowledge any of this evidence, let alone reconcile it with his findings. See Alonso v. Berryhill, No. 17cv4769 (DF), 2018 WL 4997512, at *25 (S.D.N.Y. Sept. 27, 2018) (an ALJ may not pick and choose evidence that supports his conclusions, including picking portions of plaintiff's statements regarding household activities).
5. Lack of Evidence in the Record
Finally, the ALJ discounted Plaintiff's subjective complaints based on a purported lack of evidence in the record showing that she suffered from "reduced joint motion, muscle spasm, sensory deficit, or motor disruption." (R. at 20.) Again, however, the Record - even the portions referenced by the ALJ - generally reflects the contrary.
For example, in support of this point, the ALJ cited to notes from the consultative examination performed by Dr. Figueroa (see id. at 20 (citing generally to Dr. Figueroa's consultative examination notes, dated Nov. 6, 2014 (see id. at 420-24))), but, while Dr. Figueroa did find full range of motion in Plaintiff's elbows, wrists, knees, and ankles, Dr. Figueroa also specifically found spasming in Plaintiff's shoulders (noting that it was "hard to touch"); was wholly unable to access Plaintiff's left leg due to the presence of lower back pain; was only able to evaluate backward extension, abduction, and adduction "slowly"; and noted that Plaintiff's left foot was unable to sense pinprick sensation (see id. at 422-23.)
Similarly, while the ALJ cited to a particular medical treatment note by Dr. Bruma (see id. at 20 (citing generally to Dr. Bruma's treatment note, dated Dec. 1, 2015 (see id. at 677-83))), in that note - and contrary to the ALJ's characterization - Dr. Bruma actually found Plaintiff to have limitations in range of motion, muscle spasms, and loss of sensation (see id. at 681 (recording "very limited trunk flexion / trunk extension to neutral," "spasm of the paraspinal muscles bilaterally" "moderately limited" left and right lateral flexion, extension, and rotation with discomfort, "limitation with movement of the right upper extremity," positive Tinel's sign, inconsistent sensations in upper and lower extremities, and trigger points of fibromyalgia)). Further, while the ALJ then cited to additional medical notes submitted by Dr. Bruma from outside the relevant period, those notes are no more supportive of the ALJ's findings than the earlier notes referenced by the ALJ; in fact, Dr. Bruma consistently indicated, inter alia, that Plaintiff had discomfort with movement; was experiencing pain; had spasms in her paraspinal muscles bilaterally; had reduced strength; and had decreased range of motion in her trunk, with pain occurring "with all movements." (See id. at 739, 743, 750, 755, 760, 769.)
Treatment notes from the physicians working at Orthopedic Associates are similarly unsupportive of the ALJ's findings, as those physicians also noted restrictions in Plaintiff's range of motion, tenderness, and consistent levels of severe pain, such that multiple rounds of injections and ablation were prescribed. (See, e.g., id. 809-10 (Plaintiff had "back pain, slipped disc and joint pain," mild restrictions in range of motion, and tenderness in the lower cervical paraspinals with the physician prescribing radio frequency ablation), 815-17 (noting limitations in cervical range of motion "in all planes" and radiating neck pain with the physician recommending that more injections be performed), 820 (noting that Plaintiff's "symptoms [were] severe/persistent and [were] affecting [her] quality of life," with then more injections recommended).)
In sum, based on the numerous discrepancies between the ALJ's findings and the evidence contained in the Record, this Court finds that the ALJ's assessment of Plaintiff's subjective complaints regarding her pain and other symptoms was not supported by substantial evidence. Accordingly, I recommend that this case be remanded, so that the ALJ may properly assess Plaintiff's subjective complaints pursuant to the factors set forth in the applicable Regulation, and based on all the evidence in the Record, in order to determine whether Plaintiff was disabled under the Act. See, e.g., Brown v. Astrue, 4 F. Supp. 3d 390, 402 (N.D.N.Y. 2012) (remanding where plaintiff's allegations of disabling pain and limitations were supported by medical assessments and the ALJ had improperly discounted the plaintiff's credibility for home-schooling her children when it was plaintiff's mother who performed the majority of the home-schooling); Bradley v. Colvin, 110 F. Supp. 3d 429, 446 (E.D.N.Y. 2015) (finding that ALJ's credibility assessment was improper where ALJ failed to identify the specific evidence contradicting plaintiff's testimony).
C. The ALJ Erred In Assessing the Potentially Disabling Effects of Plaintiff's Fibromyalgia.
Plaintiff further argues that, in his disability analysis, the ALJ improperly assessed Plaintiff's fibromyalgia under SSR 12-2p, an SSA Ruling that specifically addresses how fibromyalgia should be evaluated. (See Pl. Mem., at 26.) Defendant does not explicitly address this argument, merely maintaining, generally, that the ALJ's findings were supported by substantial evidence. (See Def. Mem., at 18-22.)
The parties do not dispute that Plaintiff suffered from fibromyalgia during the relevant period, and, indeed, the ALJ expressly found fibromyalgia to be one of Plaintiff's severe impairments at Step Two of the sequential evaluation. Plaintiff's primary contention here appears to be that her fibromyalgia, and the attendant symptoms of tenderness and pain that were consistently noted within the medical record, rendered her disabled under the Act. In support of this contention, Plaintiff suggests that SSR 12-2p serves as a conclusive basis for a disability finding in her favor. This SSA Ruling, however, does not mandate a disability finding by the Commissioner. Rather, it generally sets forth the requirements for finding whether a plaintiff has a "medically determinable impairment" of fibromyalgia, advises that fibromyalgia be considered within the five-step sequential evaluation framework, and further advises that the Commissioner consider "the longitudinal record whenever possible," due to fibromyalgia's waxing and waning symptoms. SSR 12-2p. Accordingly, SSR 12-2p, standing alone, did not require the ALJ to find that Plaintiff was disabled under the Act. See Prince v. Astrue, 514 F. App'x 18, 20 (2d Cir. 2013) (noting that the mere diagnosis of fibromyalgia without a finding as to the severity of symptoms and limitations does not mandate a finding of disability, so long as ALJ takes into account plaintiff's fibromyalgia in the RFC determination and the determination was supported by substantial evidence).
Nevertheless, this Court agrees with Plaintiff that, after having included fibromyalgia as one of Plaintiff's severe impairments at Step Two, the ALJ then failed to make a proper assessment, as part of his RFC determination, as to how Plaintiff's fibromyalgia and its symptoms would affect Plaintiff's ability to work. In this regard, the ALJ only tangentially noted Plaintiff's consistent reports of pain in the Record, and summarily dismissed - with no more than a cursory mention - a particular clinical finding by Dr. Bruma that Plaintiff had 18 trigger points consistent with fibromyalgia. (See R. at 18.) Given the fact that the ALJ barely addressed Plaintiff's fibromyalgia, this Court simply cannot discern whether the ALJ properly analyzed the impact of fibromyalgia on Plaintiff's ability to engage in sedentary work, as was required under SSR 12-2p and the precedent of this Circuit. See SSR 12-2p; see also Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003) (holding that fibromyalgia may be a disabling impairment).
Moreover, in making his RFC determination, the ALJ seemed primarily to rely on the opinion of Dr. Lorber. (See R. at 20 (assigning "great weight" to Dr. Lorber's opinion testimony).) Yet Dr. Lorber was an orthopedic specialist, and, as Plaintiff aptly points out, he gave no testimony that specifically addressed Plaintiff's fibromyalgia, her associated pain, and any of her other associated symptoms, thereby necessarily painting an incomplete picture of Plaintiff's overall medical condition. (See Pl. Reply Mem., at 5.) In order to have made a comprehensive RFC determination, the ALJ should have looked elsewhere in the Record to assess the extent of Plaintiff's fibromyalgia-related limitations, but there is no indication in his decision that he did so. The ALJ did state that he had weighed the opinions of a number of medical professionals (including Drs. Figueroa, Stack, and Bruni, PA Gilbert, and physical therapist Lagunda), but he failed to explain how any of that opinion evidence connected to Plaintiff's fibromyalgia and her consistent accounts of severe pain. Further, as noted above, the ALJ failed to develop the Record by seeking opinion evidence from Dr. Bruma, the physician who, at least towards the end of the relevant period, treated Plaintiff most directly for her fibromyalgia-related pain.
Finally, in the specific context of fibromyalgia, this Court is not persuaded by Defendant's general argument that the ALJ's RFC determination should be upheld because it was supported by substantial evidence. In support of this argument, Defendant notably cites to only objective findings in the Record, such as those relating to Plaintiff's strength in her extremities, gait, reflexes, and whether she was neurologically intact. (See Def. Mem., at 19.) It is, however, well understood in this Circuit that fibromyalgia may be characterized by an absence of objective findings. Cabibi v. Colvin, 50 F. Supp. 3d 213, 233 (E.D.N.Y. 2014); see also Alonso, 2018 WL 4997512, at *23 (noting that fibromyalgia will usually yield normal results from physical examinations); Lim v. Colvin, 243 F. Supp. 3d 307, 316-17 (E.D.N.Y. 2017) (holding that ALJ erred by relying on a physician's testimony on the ground that it was most consistent with "objective" findings and physical examinations, where the plaintiff had been diagnosed with fibromyalgia, which, the court noted, may be confirmed by other types of clinical findings that may then support a plaintiff's subjective complaints of pain).
Accordingly, I recommend that, upon remand, and together with being directed to reassess Plaintiff's subjective complaints of pain and other symptoms, the ALJ be directed to give specific consideration to Plaintiff's fibromyalgia (including, as set forth in SSR 12-2p, its waxing and waning nature) and to incorporate expressly, within his RFC determination, any limiting effects of Plaintiff's fibromyalgia symptoms. See Campbell v. Colvin, No. 5:13-cv-451 (GLS/ESH), 2015 WL 73763, at *11-12 (N.D.N.Y. Jan. 6, 2015) (holding that ALJ erred when looking only to objective evidence for rejecting medical source opinion relating to fibromyalgia); Casselbury v. Colvin, 90 F. Supp. 3d 81, 94 (W.D.N.Y. 2015) (holding that, where the ALJ did not consider the potential functional limitations as a result of fibromyalgia symptoms, remand was warranted). In this regard, the ALJ should additionally be instructed that, as the symptoms of fibromyalgia are often not demonstrated through "objective" medical findings, he should, in the context of Plaintiff's fibromyalgia diagnosis, ascribe increased significance to Plaintiff's subjective complaints of symptoms, and not rely solely upon findings from physical examination results or diagnostic studies. See, e.g., Soto v. Barnhart, 242 F. Supp. 2d 251, 256 (W.D.N.Y. 2003).
I further recommend that, so as to enable the ALJ to give adequate consideration to Plaintiff's fibromyalgia and related symptoms, he be instructed to make reasonable attempts to solicit a functional assessment from Dr. Bruma, who oversaw Plaintiff's pain management for at least part of the relevant period, and/or from another treater who could explain the limiting effects of Plaintiff's fibromyalgia. If such efforts prove futile, then the ALJ should alternatively be directed to request a functional assessment relative to Plaintiff's fibromyalgia from a consultative examiner with a relevant specialty.
D. In Light of Errors by the ALJ , the Court Cannot Conclude That His RFC Determination Was Supported by Substantial Evidence.
In addition to the issues discussed above regarding the inadequacy of the ALJ's RFC determination, Plaintiff raises certain additional challenges to that determination, largely arising from the ALJ's reliance on the testimony of Dr. Lorber and VE DiStefano. (See Pl. Mem., at 27-30.) Aspects of these challenges, and related issues regarding the lack of apparent support in the Record for certain of the findings that the ALJ incorporated into his RFC determination, also warrant attention on remand.
As to the ALJ's reliance on Dr. Lorber's testimony, it was not error, per se, for the ALJ to have relied on Dr. Lorber's particular findings regarding Plaintiff's exertional limitations, as those finding were generally supported by the Record. See Ortiz v. Commissioner of Soc. Sec., 309 F. Supp. 3d 189, 204-05 (S.D.N.Y. 2018) (noting that the ALJ was permitted to consider the opinion of a non-examining medical expert in making the RFC determination). Nor was it error for the ALJ to have included certain limitations in Plaintiff's RFC that were more restrictive than those found by Dr. Lorber. It was problematic, however, for the ALJ to have made any findings regarding Plaintiff's exertional capabilities that had not been addressed by Dr. Lorber at all, and as to which the ALJ cited no alternate source in support of his findings. In particular, the ALJ found, on a subject not mentioned by Dr. Lorber, that Plaintiff could "frequently flex, extend, and rotate her neck." (R. at 14.) The ALJ fail to explain the derivation of this finding, and its source is not apparent in the Record, which contains extensive evidence that Plaintiff suffered from chronic neck pain, muscle spasms in her neck, and neck stiffness. (See, e.g., id. at 358-60, 458, 462, 636-37, 650, 660.) Although Plaintiff, in her motion, does not take issue with this specific finding, I nonetheless recommend that, if the ALJ adheres to this finding on remand, then he clarify its evidentiary basis.
In his functional assessment, Dr. Lorber found that Plaintiff could lift 10 pounds occasionally, stand and walk for up to two hours per day for 30 minutes at a time, sit for six hours per day for up to 30 minutes a time, frequently reach in directions other than reaching overhead, frequently handle and fine finger and feel, occasionally ascend and descend stairs and ramps, frequently operate foot pedals with either foot, and occasionally stoop and crouch; and could not perform any overhead work with her right upper extremity, climb ladders or scaffolds or ropes, crawl, work at unprotected heights, kneel, or be exposed to concentrated vibration. (See R. at 53-54.) These findings were supported by other evidence in the Record, including the 2014 MSS submitted by PA Gilbert (see id. at 409 (finding that Plaintiff could lift and carry up to 20 pounds and stand and/or walk and/or sit for "up to 6 hours per day")) and the notes of Dr. Figueroa (see, e.g., id. at 423-24 (indicating that Plaintiff had "moderate limitations to prolonged walking and standing" and "moderate" limitations to "pulling, and lifting and carrying")).
Plaintiff cannot reasonably complain, for example, that the ALJ found her to need a one-to-two-minute break when changing positions from sitting to standing, when Dr. Lorber expressly found that she would not need such breaks. (Compare id. at 14, with id. at 53 ("It is not necessary for the claimant to take a break from work when changing position from standing to sitting or sitting to standing."); cf. Quinn v. Colvin, 199 F. Supp. 3d 692, 712 (W.D.N.Y. 2016) (holding that it was error for the ALJ to include a restriction, such as the need for a break in changing positions, where the medical sources were silent as to whether such a break was needed and, if so, how long it needed to be).
Similarly, the ALJ should be directed to clarify the bases for his findings regarding Plaintiff's non-exertional limitations, as several of his findings in that regard seem in conflict with the existing medical opinion evidence. For example, the ALJ found that Plaintiff had the ability to "carry out simple work and adapt to routine workplace changes." (R. at 14-15.) Yet, Dr. Stack, the consulting psychologist who provided an opinion upon her examination of Plaintiff, had found Plaintiff to have "deficits in . . . work that stem[med] from physical problems and symptoms of anxiety, depression, PTSD, and panic," and, due to symptoms relating to her mental impairments, to be "moderate[ly]" impaired in her ability to maintain a regular schedule, relate adequately to others, and appropriately deal with stress. (Id. at 418.) Dr. Stack had further opined that Plaintiff's psychiatric problems might "significantly interfere" with Plaintiff's "ability to function on a daily basis." (Id.) Dr. Bruni, the non-examining state agency psychologist, had made findings along the same lines as those described by Dr. Stack, and had further opined that, while Plaintiff could potentially deal with minor changes in the work setting, she would have "trouble coping with stress," and that "this might impact her capacity to adapt to changes." (Id. at 110.) In his decision, the ALJ stated that he had only assigned "some weight" to the opinions of Drs. Stack and Bruni (id. at 21), but, even if it was reasonable for the ALJ to have discounted those opinions, the ALJ was still required to support, with substantial evidence in the Record, each of his findings - including his finding regarding Plaintiff's ability to adapt to workplace changes. His failure to do so constitutes reversible error. See Lilley v. Berryhill, 307 F. Supp. 3d 157, 159-61 (W.D.N.Y. 2018) (holding that "the leeway given to ALJs to make 'common sense judgments' does not typically extend to the determination of mental limitations," and that the ALJ erred when he made findings regarding the plaintiff's mental impairments and incorporated them into the RFC, without obtaining a functional assessment directly addressing them); Dale v. Colvin, No. 15-CV-496-FPG, 2016 WL 4098431, at *3 (W.D.N.Y. Aug. 2, 2016) (an RFC assessment must be based on a medical advisor's assessment).
While Plaintiff does not make the argument that the ALJ's discounting of Dr. Stack's and Dr. Bruni's opinions was improper, it appears that at least some of the ALJ's stated reasons for doing so were inconsistent with the medical treatment notes submitted by HVMH. For example, the ALJ found that Plaintiff's reports of "daily panic attacks" and of "being unable to leave the house alone" were contradicted by Plaintiff's having denied "any mental health symptoms on various occasions to multiple providers and [the fact that] she routinely traveled alone, as she did to the consultative examination." (R. at 21.) Yet, the Record is replete with complaints by Plaintiff and clinical findings by treaters, both during and after the relevant period, of panic attacks, crying spells, sleepiness as a side effect of mood stabilizing medication, agoraphobia, paranoia, and rampant mood swings, even despite Plaintiff's consistent treatment with medication and therapy. (See, e.g., id. at 551, 573, 579, 584, 795, 804, 806, 846-47.) Moreover, one of the ALJ's other reasons for discounting Dr. Stack's and Dr. Bruni's opinions - that these consultants were unaware that Plaintiff was "working" throughout the period of review - was, as discussed above, based on an improper cherry picking by the ALJ of select portions of Plaintiff's testimony and the evidence in the Record.
On a related note, the ALJ should be directed, upon remand, to address the question of whether - and to what extent - Plaintiff's various impairments (including, but not limited to both her mental impairments and her fibromyalgia) would likely have resulted in her being off task during the workday, during the relevant period. As relevant to this question, Dr. Stack had found Plaintiff moderately limited in her ability to maintain a schedule (id. at 418), and, although Dr. Bruni had found that Plaintiff could "maintain adequate attention to complete ordinary work tasks on an ongoing basis," Dr. Bruni had also assessed Plaintiff as moderately limited in, inter alia, her ability to keep to a schedule, to complete a normal workday without interruptions from psychologically-based symptoms, and to perform at a consistent pace without an unreasonable number and length of rest periods (id. at 108-10). At the second hearing, the ALJ posed a hypothetical to VE DiStefano, inquiring whether there were existing jobs that could be performed by a person who, in combination with the other limitations the ALJ had described, was unable to remain on task for more than 20 percent of the workday. (R. at 70.) In response, the VE testified that such a person would not be able to sustain gainful employment. (Id.) As noted by Plaintiff, however (see Pl. Reply Mem., at 7), the ALJ did not then incorporate in his RFC determination any limitation in Plaintiff's ability to remain on task - despite the opinion evidence in the Record indicating the contrary. Absent explanation from the ALJ on this point, this Court cannot determine whether - and, if so, how - the ALJ took that opinion evidence into account. See, e.g., Stellmaszyk, 2018 WL 4997515, at *28 (holding that ALJ failed to explain in his analysis how he factored in the vocational expert's testimony that plaintiff could not sustain employment if she were off task for 20 percent of the day).
Finally, with respect the general issue of the ALJ's reliance on the testimony of the VE, it goes without saying that any hypotheticals posed to a VE must have adequate support in the Record, if the ALJ is then going to rely on the VE's responsive testimony as evidence that the claimant is not disabled. See McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (noting that, while an ALJ may rely on a vocational expert's testimony concerning the availability of jobs suited to a hypothetical person with the claimant's capabilities, the facts of the hypothetical must be based on substantial evidence and accurately reflect the limitations and capabilities of the claimant (citations omitted)). A vocational expert's testimony does not constitute substantial evidence where the ALJ asks about a hypothetical claimant whose limitations do not actually mirror those of the claimant. See Garcia v. Colvin, No. 14cv3725 (DF), 2015 WL 5786506, at *23 (S.D.N.Y. Sept. 29, 2015) (holding that where vocational expert's hypotheticals lacked any mention of the plaintiff's learning disability and did not contemplate the plaintiff's additional physical limitations, the hypotheticals did not substantially mirror the plaintiff's RFC (citing, inter alia, Aubeuf v. Schweiker, 649 F.2d 107, 114-15 (2d Cir. 1981))).
Here, because the ALJ did not properly evaluate Plaintiff's fibromyalgia and its symptoms, did not properly assess Plaintiff's subjective complaints of pain and other symptoms, and did not properly support aspects of his RFC determination with substantial evidence, the hypotheticals that the ALJ posed to VE DiStefano - which were based on the ALJ's RFC determination - were infected with error. Consequently, VE DiStefano's testimony cannot be found to constitute substantial evidence at Step Five of the sequential evaluation.
Regarding Plaintiff's specific contention that the job of surveillance system monitor no longer exists in the national economy, as pointed out by Defendant, Plaintiff fails to support this contention with any authority, other than a general citation to a periodical. Accordingly, this Court finds this argument to be meritless. See, e.g., De Gonzalez v. Berryhill, No. 16-CV-06723 (JMA), 2018 WL 6834474, at *12 (E.D.N.Y. Dec. 28, 2018) (holding that the ALJ properly relied upon a vocational expert's finding that the plaintiff could perform the job of surveillance system monitor , a sedentary level position, as the RFC assessment was supported by substantial evidence).
CONCLUSION
For all of the foregoing reasons, I respectfully recommend that Plaintiff's motion remanding this case for a new hearing (Dkt. 15) be granted, and that Defendant's cross-motion (Dkt. 19) be denied. I further recommend that, upon remand, the ALJ be directed as follows:
(1) To reassess Plaintiff's subjective complaints of pain and other symptoms in light of the Record, consistent with this Report and Recommendation, and to adjust the RFC determination as appropriate, in light of that reassessment;
(2) To engage in a proper evaluation of the effects of Plaintiff's fibromyalgia and its attendant symptoms, including by seeking to develop the Record by soliciting a functional assessment as to how such symptoms limited Plaintiff during the relevant period, and to adjust the RFC determination as appropriate, in light of that evaluation; and
(3) To set out the bases in the Record for any exertional and non-exertional limitations included in the RFC; to address the specific question of whether Plaintiff would have likely been off-task for any portion of the workday, during the
relevant period; and to rectify any errors in the hypotheticals posed to the VE.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Annalisa Torres, United States Courthouse, 500 Pearl Street, Room 2210, New York, NY 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, Room 1660, New York, NY 10007. Any requests for an extension of time for filing objections should be directed to Judge Torres. FAILURE TO OBJECT 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). Dated: New York, New York
February 19, 2019
Respectfully submitted,
/s/_________
DEBRA FREEMAN
United States Magistrate Judge
Copies to:
Hon. Annalisa Torres, U.S.D.J. All counsel (via ECF)