Opinion
6:21-CV-06480 EAW
2023-03-06
DAVID C., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Mark M. McDonald, Bond McDonald & Lehman, PC, Geneva, NY, for Plaintiff. Graham Morrison, Kristina Danielle Cohn, Office of General Counsel Office of the General Counsel Social Security Administration, Baltimore, MD, Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant.
Mark M. McDonald, Bond McDonald & Lehman, PC, Geneva, NY, for Plaintiff. Graham Morrison, Kristina Danielle Cohn, Office of General Counsel Office of the General Counsel Social Security Administration, Baltimore, MD, Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Represented by counsel, Plaintiff David C. ("Plaintiff") brings this action pursuant to Titles II and XVI of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 15; Dkt. 19), and Plaintiff's reply (Dkt. 20). For the reasons discussed below, the Commissioner's motion (Dkt. 19) is granted, and Plaintiff's motion (Dkt. 15) is denied.
BACKGROUND
Plaintiff protectively filed his applications for DIB and SSI on May 7, 2018. (Dkt. 5 at 27, 214-15). In his applications, Plaintiff alleged disability beginning March 20, 2018, due to type II diabetes, post-traumatic stress disorder, soratic arthritis/psoriasis, left shoulder injury, obesity, neck problems, and back problems. (Id. at 27, 216-17, 231-32). Plaintiff's applications were initially denied on September 12, 2018. (Id. at 27, 246-53). A telephone hearing was held before administrative law judge ("ALJ") Matthew Kuperstein on May 14, 2020. (Id. at 27, 111-73). On June 2, 2020, the ALJ issued an unfavorable decision. (Id. at 24-42). Plaintiff requested Appeals Council review; his request was denied on May 24, 2021, making the ALJ's determination the Commissioner's final decision. (Id. at 7-13). This action followed.
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper right-hand corner of each document.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("SSA")], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It is not the Court's function to "determine de novo whether [the claimant] is disabled." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law." Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
II. Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Bowen v. City of New York, 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ determines whether the claimant is engaged in substantial gainful work activity. See 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act, in that it imposes significant restrictions on the claimant's ability to perform basic work activities. Id. §§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment or combination of impairments, the analysis concludes with a finding of "not disabled." If the claimant does have at least one severe impairment, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant's impairment meets or medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the "Listings"). Id. §§ 404.1520(d), 416.920(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement, id. §§ 404.1509, 416.909, the claimant is disabled. If not, the ALJ determines the claimant's residual functional capacity ("RFC"), which is the ability to perform physical or mental work activities on a sustained basis, notwithstanding limitations for the collective impairments. See id. §§ 404.1520(e), 416.920(e).
The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work. Id. §§ 404.1520(f), 416.920(f). If the claimant can perform such requirements, then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled. Id. §§ 404.1520(g), 416.920(g). To do so, the Commissioner must present evidence to demonstrate that the claimant "retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy" in light of the claimant's age, education, and work experience. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted); see also 20 C.F.R. § 404.1560(c).
DISCUSSION
I. The ALJ's Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in 20 C.F.R. §§ 404.1520 and 416.920. Initially, the ALJ determined that Plaintiff last met the insured status requirements of the Act on December 31, 2022. (Dkt. 5 at 30). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since March 20, 2018, the alleged onset date. (Id.).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "Left shoulder arthritis, Obesity, Cervical and lumbar degenerative disc disease, and Psoriatic arthritis." (Id.). The ALJ further found that Plaintiff's medically determinable impairments of diabetes, hypertension, anxiety disorder, depressive disorder, and post-traumatic stress disorder were non-severe. (Id. at 30-32).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. at 32). The ALJ particularly considered the criteria of Listings 1.02, 1.04, and 8.05 in reaching his conclusion. (Id.).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), except:
with further limitation to lifting and/or carrying 10 pounds occasionally and 10 pounds frequently; to standing and/or
walking with normal breaks for a total of six hours in an eight hour workday; to sitting with normal breaks for a total of six hours in an eight hour workday; to only occasional climbing, balancing, stooping, kneeling, crouching, or crawling; and to only occasional overhead reaching bilaterally and to only occasional handling bilaterally.(Id.). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 40).
At step five, the ALJ relied on the testimony of a vocational expert ("VE") to conclude that, considering Plaintiff's age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of surveillance system monitor, callout operator, and election clerk. (Id. at 40-41). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 41-42).
II. The Commissioner's Determination is Supported by Substantial Evidence and Free from Legal Error
Plaintiff asks the Court to remand this matter to the Commissioner, arguing that: (1) the Appeals Council rejected the opinion of the treating physician and new and material imaging studies without sufficient explanation; (2) the ALJ failed to apply the proper legal standard in concluding that Plaintiff did not meet Listing § 1.04(A) for the lower back; (3) the ALJ failed to properly assess the opinion evidence; and (4) the ALJ improperly assessed Plaintiff's symptoms. (See Dkt. 15-2 at 8). The Court has considered each of these arguments and, for the reasons discussed below, finds them without merit.
A. The Appeals Council
Plaintiff's first argument is that the Appeals Council improperly rejected additional medical evidence, pointing specifically to the following evidence he submitted to the Appeals Council: imaging studies of the cervical and lumbosacral spine from June and July 2020; treatment notes from Plaintiff's orthopedic surgeon, Zair Fishkin, M.D., relating to Plaintiff's worsening condition following a December 2020 motor vehicle accident; and an August 2020 opinion offered by Plaintiff's treating physician, Philipp C. Wirth, M.D. (Dkt. 15-2 at 27-28). Plaintiff contends that the Appeals Council failed to offer a sufficient explanation for its rejection of this evidence.
"[T]he Appeals Council, in reviewing a decision based on an application for benefits, will consider new evidence only if (1) the evidence is material, (2) the evidence relates to the period on or before the ALJ's hearing decision, and (3) the Appeals Council finds that the ALJ's decision is contrary to the weight of the evidence, including the new evidence." Rutkowski v. Astrue, 368 F. App'x 226, 229 (2d Cir. 2010) (citing 20 C.F.R. § 416.1470). "Material evidence is both relevant to the claimant's condition during the time period for which benefits were denied and probative, and the claimant must show a reasonable possibility that the new evidence would have influenced the Commissioner to decide the claimant's application differently." Hairston-Scott v. Comm'r of Soc. Sec., No. 20-758, 2021 WL 3777581, at *2 (2d Cir. Aug. 21, 2021) (alterations, quotations, and citation omitted).
Medical evidence generated after an ALJ's decision cannot be deemed irrelevant solely based on timing. Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004). "For example, subsequent evidence of the severity of a claimant's condition may demonstrate that 'during the relevant time period, [the claimant's] condition was far more serious than previously thought.' " Newbury v. Astrue, 321 F. App'x 16, 18 n.2 (2d Cir. 2009) (quoting Pollard, 377 F.3d at 193). However, evidence that does not provide additional information about the claimant's functioning during the relevant time period, but instead relates to his or her functioning at some later point in time, need not be considered by the Appeals Council. See Vitale v. Apfel, 49 F. Supp. 2d 137, 142 (E.D.N.Y. 1999) ("While the existence of a pre-existing disability can be proven by a retrospective opinion, such an opinion must refer clearly to the relevant period of disability and not simply express an opinion as to the claimant's current status"). Further, the Appeals Council is not required to consider evidence that is cumulative of existing evidence in the record. See Lynnessa M. v. Comm'r of Soc. Sec., 1:20-cv-00971, 2021 WL 4437184, at *7 (W.D.N.Y. Sep. 28, 2021) ("Evidence that is cumulative to that already contained in the record prior to the ALJ decision is, by definition, not 'new' and need not be considered.").
The Appeals Council addressed the new evidence submitted by Plaintiff, in relevant part:
You submitted medical records from Finger Lakes Radiology, dated May 21, 2018 through November 27, 2019 (4 pages); Julie Goodspeed, dated March 5, 2020 (8 pages); Lowry Chiropractic & Wellness, dated April 17, 2020 through June 1, 2020 (23 pages); Philipp C. Wirth, M.D., dated April 29, 2020 (5 pages); Lowry Chiropractic and Wellness, dated June 3, 2020 through July 20, 2020 (9 pages); Pinnacle Orthopedic and Spine Specialists, dated June 8, 2020 through July 16, 2020 (15 pages); Robert Karpman, M.D., MBA, dated June 11, 2020 (8 pages); Finger Lakes Radiology, dated June 11, 2020 (3 pages); and Geneva General Hospital, dated July 13, 2020 (3 pages). We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not exhibit this evidence.(Dkt. 5 at 8).
You also submitted medical records from Pinnacle Orthopedic and Spine Specialists dated August 3, 2020 (5 pages); Philipp C. Wirth, M.D., dated August 24, 2020 (9 pages); and Pinnacle Orthopedic and Spine Specialists, dated November 11, 2020 through November 12, 2020 (9 pages). The Administrative Law Judge decided your case through June 2, 2020. This additional evidence does not relate to the period at issue. Therefore, it does not affect the decision about whether you were disabled beginning on or before June 2, 2020.
The Court turns first to the evidence submitted by orthopedic surgeon, Dr. Fishkin. Plaintiff began treating with Dr. Fishkin on June 8, 2020 (see Dkt. 5 at 88)—after the ALJ rendered his decision on June 2, 2020—and therefore Plaintiff did not treat with Dr. Fishkin during the relevant period of disability. The Court has reviewed the records from Dr. Fishkin, which span from June 2020 through November 2020, and finds that they do not purport to provide a retroactive opinion, or suggest that Plaintiff's impairments were more significant than previously diagnosed. Dr. Fishkin could not have had first-hand knowledge of Plaintiff's functioning during the relevant time period, given that Plaintiff did not begin treating with him until after the relevant period of disability. See, e.g., Pulos v. Comm'r of Soc. Sec., 346 F. Supp. 3d 352, 363 (W.D.N.Y. 2018) (opinion submitted to the Appeals Council was not relevant to the period of disability, including because the provider "had not treated Plaintiff prior to the November 2017 report, and had no knowledge of Plaintiff's level of functioning during the period of disability"); Miller v. Colvin, 13-cv-6462-MWP, 2015 WL 1431699, at *14 (W.D.N.Y. Mar. 27, 2015) (opinion submitted to Appeals Council was not retrospective because "the opinion [wa]s based upon an evaluation of [the plaintiff] that occurred almost six months after the ALJ rendered his decision," and "[n]othing in the report suggests that [the provider] had ever met, treated, or evaluated [the plaintiff] during the relevant time period."). Accordingly, the records from Dr. Fishkin do not "add so much as to make the ALJ's decision contrary to the weight of the evidence," see Rutkowski, 368 F. App'x at 229, and the Appeals Council was not required to consider them. Similarly, the imaging studies from June and July 2020 provide a snapshot of Plaintiff's condition at a specific point in time after the relevant period of disability, and Plaintiff has failed to articulate how these studies shed light on his functional limitations during the relevant period of disability. See Pulos, 346 F. Supp. 3d at 363 ("the November 2017 report is a snap shot of Plaintiff's condition in November 2017, and does not clearly refer to the relevant period of disability").
The Court has also reviewed the additional records from Dr. Wirth, including his August 2020 opinion, which addressed limitations relating to Plaintiff's cervical spine impairment, including that Plaintiff has limited movement and pain in his neck, which would bother him "constantly," and assessed various physical limitations with respect to Plaintiff's shifting positions, lifting and carrying, moving his neck, and opining that Plaintiff is "100 percent" disabled due to his cervical spine. (See Dkt. 5 at 60-67). As further detailed below, Dr. Wirth provided multiple opinions that were carefully considered by the ALJ in the written determination, and the Court finds that the August 2020 opinion is merely cumulative of those previously provided opinions, and it does not contain any information that could reasonably be expected to change the disability determination. Plaintiff himself acknowledges that the August 2020 opinion is similar to the opinions Dr. Wirth previously provided in November 2018 and April 2020. (See, e.g., Dkt. 15-2 at 29 (contending that Dr. Wirth's August 2020 opinion offered "limitations somewhat similar to his opinion rendered in November 201[9] and April 2020")). Accordingly, the ALJ did not err by declining to consider this evidence.
In sum, "[t]he evidence submitted by [Plaintiff] to the Appeals Council does not contradict the ALJ's finding . . . and therefore the ALJ's determination is supported by substantial evidence." Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). Accordingly, the Court finds no basis for remand based on the Appeals Council's assessment of the additional evidence submitted by Plaintiff.
B. Listing § 1.04(A)
Plaintiff's next argument is that the ALJ failed to apply the proper legal standard when assessing Plaintiff's lower back impairment. Plaintiff contends that he is entitled to remand because the ALJ improperly concluded that he does not meet Listing 1.04, including because Listing 1.04A does not require an inability to ambulate, and evidence in the record demonstrates that he otherwise meets the requirements of this listing. (See Dkt. 15-2 at 30-31). In support of this assertion, Plaintiff points to evidence he contends establishes that he met this listing between March 2018 and March 2019, including that he suffered from nerve root compression, limited range of motion in his spine, difficulty standing on his toes and heels, weakness, tingling, and positive straight leg raise test, concluding that because the ALJ's determination was based on a misreading of the listing requirements, he never fully evaluated whether Plaintiff met each element. (Id. at 31-32).
"Plaintiff has the burden of proof at step three to show that [his] impairments meet or medically equal a Listing." Rockwood v. Astrue, 614 F. Supp. 2d 252, 272 (N.D.N.Y. 2009), adopted, 614 F. Supp. 2d 252 (N.D.N.Y. 2009). "To match an impairment in the Listings, the claimant's impairment must meet all of the specified medical criteria of a listing." Loescher v. Berryhill, No. 16-CV-300-FPG, 2017 WL 1433338, at *3 (W.D.N.Y. Apr. 24, 2017) (quotation and citation omitted). "If a claimant's impairment manifests only some of those criteria, no matter how severely, such impairment does not qualify." Rockwood, 614 F. Supp. 2d at 272 (quotations and citations omitted). An ALJ is required to provide an explanation "as to why the claimant failed to meet or equal the Listings, '[w]here the claimant's symptoms as described by the medical evidence appear to match those described in the Listings.' " Rockwood, 614 F. Supp. 2d at 273 (quoting Kuleszo v. Barnhart, 232 F. Supp. 2d 44, 52 (W.D.N.Y. 2002)) (alteration in original).
After concluding that Plaintiff had the severe impairment of cervical and lumbar degenerative disc disease (see Dkt. 5 at 30), the ALJ proceeded to step three of the sequential analysis and the ALJ explained, in relevant part:
The claimant's spine impairments do not meet listing 1.04. With regard to the claimant's cervical spine impairment, the medical evidence does not establish the requisite evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis as required under listing 1.04. As to the claimant's lumbar spine impairment, while there is documentation of nerve root compression prior to the claimant's L4-L5 fusion, there is no evidence that the claimant's back disorder has resulted in an inability to ambulate effectively, as defined in 1.00(B)(2)(b). The medical records show a normal gait and no apparent issues walking (Exhibit 38F, Pages 3, 7; Exhibit 44F, Pages 12, 16).(Id. at 32).
To meet Listing 1.04(A), a claimant must show proof of the following conditions:
1. A disorder of the spine, including but not limited to "herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture," andSee 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04A. In addition, "all of the requirements of Listing 1.04(A) must be simultaneously present on examination and continue, or be expected to continue, for at least 12 months, in order for a disorder of the spine to meet the Listing at step three." See Monsoori v. Comm'r of Soc. Sec., No. 1:17-cv-01161-MAT, 2019 WL 2361486, at *4 (W.D.N.Y. June 4, 2019); see also Flores v. Comm'r of Soc. Sec., No. 21-CV-8109 (RWL), 2022 WL 17496235, at *8 (S.D.N.Y. Dec. 8, 2022). "In other words, when the listing criteria are scattered over time, wax and wane, or are present on one examination but absent on another, the individual's nerve root compression would not rise to the level of severity required by listing 1.04A." Monsoori, 2019 WL 2361486, at *4 (quotations and citation omitted).
2. "Compromise of nerve root (including the cauda equina) or the spinal cord," and
3. "Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness)," and
4. "Sensory or reflex loss," and if there is involvement of the lower back,
5. "Positive straight-leg raising test" in both the sitting and supine position.
Plaintiff points to certain evidence in the record he contends satisfies the requirements of Listing 1.04A for a 12-month period. However, other evidence in the record contradicts this assertion, underscoring that his symptoms waxed and waned over time, and therefore were not simultaneously present for a period of at least 12 months. For example, despite Plaintiff's assertion that he had motor and sensory or reflex loss between March 2018 and March 2019 (see Dkt. 15-2 at 31-32), treatment notes indicate that Plaintiff also displayed intact motor strength and sensation during the same timeframe (see, e.g., Dkt. 5 at 554 (on April 16, 2018, examination revealing "sensory intact," and "reflexes symmetric and normal"); id. at 679 (on April 9, 2018, physical examination revealing intact motor strength and sensation)). Harbinder Toor, M.D., the consultative examiner, examined Plaintiff on September 6, 2018, and found no sensory deficit, and "strength 5/5 in the upper and lower extremities." (Id. at 901; see also id. at 922-23 (on August 9, 2018, Daniel Carr, M.D., noting that Plaintiff does not have lower extremity radicular complaints, no sensory deficit, and "back pain with strength testing of the thigh musculature but no deficits")). Treatment notes from December 2018 demonstrate that, by that time, Plaintiff "denie[d] any radiculopathy," and reported that his numbness and tingling had resolved. (See id. at 940-41 (treatment note from Raman Dhawan, M.D.)).
Plaintiff carries the burden of demonstrating that he meets the criteria of a particular listing, see Rockwood, 614 F. Supp. 2d at 272, and he has failed to demonstrate that his spinal impairment meets the requirements of Listing 1.04A, or any other listed impairment. Accordingly, Plaintiff is not entitled to remand on this basis.
Plaintiff contends that the ALJ misapplied the Listing based on the ALJ's statement that the medical records show a normal gait and no apparent issues walking. While Listing 1.04(C) requires evidence of an inability to ambulate, Listing 1.04(A) does not include this requirement. See Appendix 1, 20 C.F.R. Part 404, Subpart P, 1.04A & C. The ALJ's explanation refers to Listing 1.04 generally, and not specifically to subsection (A) of the Listing. Even assuming the ALJ misapplied the Listing, any such error was harmless because Plaintiff has failed to demonstrate that he otherwise meets the requirements of Listing 1.04(A). See, e.g., Solis v. Berryhill, 692 F. App'x 46, 48 (2d Cir. 2017) ("Although the ALJ did not explicitly discuss Listing 11.14, his general conclusion (that Solis did not meet a listed impairment) is supported by substantial evidence.").
C. Assessment of Opinion Evidence
Plaintiff next argues that the ALJ did not properly assess the opinion evidence in the record, including because the ALJ's conclusions relating to the opinion evidence are not supported by substantial evidence, and because he failed to assess the opinions according to the relevant regulations. (Dkt. 15-2 at 33-39).
Under the regulations applicable to Plaintiff's claim, the Commissioner "will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [the claimant's] medical sources." 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Further, when a medical source provides one or more medical opinions, the Commissioner will consider those medical opinions from that medical source together using the factors listed in paragraphs (c)(1) through (c)(5) of the applicable sections. Id. Those factors include: (1) supportability; (2) consistency; (3) relationship with the claimant, including the length of the treatment relationship, the frequency of examinations, purpose and extent of the treatment relationship, and the examining relationship; (4) specialization; and (5) any other factors that "tend to support or contradict a medical opinion or prior administrative medical finding." Id. at §§ 404.1520c(c), 416.920c(c).
When evaluating the persuasiveness of a medical opinion, the most important factors are supportability and consistency. Id. at §§ 404.1520c(a), 416.920c(a). With respect to "supportability," the new regulations provide that "[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be." Id. at § 404.1520c(c)(1). With respect to "consistency," the new regulations provide that "[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be." Id. at §§ 404.1520c(c)(2), 416.920c(c)(2).
The ALJ must articulate his consideration of the medical opinion evidence, including how persuasive he finds the medical opinions in the case record. Id. at §§ 404.1520c(b), 416.920c(b). "Although the new regulations eliminate the perceived hierarchy of medical sources, deference to specific medical opinions, and assigning 'weight' to a medical opinion, the ALJ must still articulate how [he or she] considered the medical opinions and how persuasive [he or she] find[s] all of the medical opinions." Andrew G. v. Comm'r of Soc. Sec., No. 3:19-CV-0942 (ML), 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (quotations and citation omitted). Specifically, the ALJ must explain how he considered the "supportability" and "consistency" factors for a medical source's opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). The ALJ may—but is not required to—explain how he considered the remaining factors. Id.
The ALJ evaluated several medical opinions in connection with assessing the RFC, including the opinion offered by the state agency medical consultant, several opinions offered by Dr. Wirth, an opinion offered by Plaintiff's treating orthopedist, Dr. Dhawan, an opinion offered by Dr. Toor, and an opinion offered by Stephen Farmer, Psy.D., the mental consultative examiner. (See Dkt. 5 at 36-39). Plaintiff's arguments focus on the ALJ's assessment of the opinions offered by Dr. Wirth, Dr. Dhawan, and Dr. Toor.
The Court turns first to the opinions offered by Dr. Wirth: (1) a November 21, 2019 opinion, in which Dr. Wirth stated that Plaintiff could return to work with restrictions, noting Dr. Dhawan's opinion from August 2019 of no lifting more than 25 pounds and no carrying more than 25 pounds; (2) a November 20, 2019 opinion, in which Dr. Wirth opined that Plaintiff could lift/carry 11-20 pounds; could only stand, sit, and walk for a combined total of six hours per day; would need to elevate his legs as needed; would likely be absent from work more than four days per month because of his impairments; and would experience pain or other symptoms severe enough to interfere with the attention and concentration needed to perform simple tasks for more than 67 percent of an eight-hour workday; (3) a February 24, 2020 opinion, in which Dr. Wirth found that Plaintiff could return to work with restrictions, again noting Dr. Dhawan's opinion that Plaintiff could not lift or carry more than 25 pounds, as well as a work limitation form reflecting very limited exertional abilities, as well as limitations for foot controls, cold environment or weather limitations, and limitations for use of heavy equipment; and (4) an April 29, 2020 opinion, in which Dr. Wirth opined that Plaintiff could lift/carry 11-20 pounds; could stand, sit, and walk for a total of two to three hours each; had to periodically elevate his legs for 10 to 20 minutes due to pain; would likely be absent from work more than four days per month because of his impairments; and would experience pain or other symptoms severe enough to interfere with the attention and concentration needed to perform simple tasks for more than 67 percent of an eight-hour work day. (Id. at 37-38; see also id. at 1104-06 (November 21, 2019 opinion), 1027-30 (November 20, 2019 opinion), 1107-10, 1116-18 (February 24, 2020 opinion), 1112-15 (April 29, 2020 opinion)).
The written determination also discusses an August 2019 opinion that Plaintiff could return to work with restrictions for lifting/carrying 25 pounds. (Id. at 37). The ALJ attributed this opinion to Dr. Wirth, but that opinion was actually issued by Dr. Dhawan. Plaintiff contends that the ALJ's error was harmful, since the ALJ found Dr. Wirth's opinions unpersuasive on the basis that they were inconsistent with each other. (See Dkt. 15-2 at 33-34). Any error with respect to this misattribution is harmless, as Dr. Wirth did not disagree with the Dr. Dhawan's assessment of Plaintiff's ability to lift and carry—rather, Dr. Wirth noted these as restrictions should Plaintiff return to work. Further, as explained herein, the ALJ found Dr. Wirth's opinions to be inconsistent with other evidence in the record for several reasons beyond Plaintiff's ability to lift and/or carry.
The ALJ explained initially with respect to Dr. Wirth's opinions:
Each will be addressed below, but they generally follow the pattern of the claimant's limitations increasing since August 2019 such that he presently has very limited functioning. There is little support for this, and it is inconsistent with the medical record. Even before the claimant's cervical fusion, Dr. Wirth's records show examination results for normal gait, full strength in all extremities, and intact sensation (Exhibit 7F, Pages 41, 44, 48). There is no significant change in the examination results from Dr. Wirth's later records in 2019 and 2020. They show some spinal tenderness but otherwise normal extremity examinations other than slightly asymmetrical lower extremity reflexes at one appointment ( + 1 to + 2). They also show normal gait and no apparent issues with walking (Exhibit 38F, Pages 3, 7; Exhibit 44F, Pages 12, 16). The substance of these notes indicates that the claimant is doing quite well as to his cervical disc disease and that he has had improvement after his lumbar fusion and is able to walk on a treadmill at home and at the gym (Exhibit 38F, Page 5; Exhibit 44F, Page 9). There is simply nothing in the record, including Dr. Wirth's own treatment notes, to support the decline in the claimant's functioning reflected in his opinions.(Id. at 37). Accordingly, the ALJ considered the supportability and consistency of Dr. Wirth's opinions both with respect to the individual opinions, as well as across Dr. Wirth's opinions collectively, as required by the applicable regulations. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a).
With respect to the November 20, 2019, and the April 29, 2020 assessments, the ALJ found these opinions were persuasive to the extent they were consistent with an RFC for sedentary work, but further found that they were inconsistent with Dr. Wirth's own treatment records. The ALJ noted specific instances of inconsistency, including Dr. Wirth's assessment that Plaintiff needed to elevate his legs due to swelling, which Plaintiff reported at only one appointment, and also later records documenting that Plaintiff was doing better, and was able to walk on a treadmill at home and in the gym. (Id. at 37-38). The ALJ also noted that Dr. Wirth's opinions were inconsistent with other evidence in the record, including Plaintiff's orthopedic records, which demonstrated decreased lumbar range of motion but normal strength and sensation. (Id.). Finally, the ALJ noted that although Dr. Wirth's April 2020 opinion referenced depression, there was little evidence of mental limitations, including few specific mental health complaints, largely intact mental examinations, and that modest treatment was effective. (Id. at 38).
With respect to the February 24, 2020 opinion, the ALJ found the opinion persuasive to the extent it was consistent with Plaintiff's ability to perform sedentary work as provided in the RFC, but further found the opinion to be inconsistent with Dr. Wirth's physical examinations of Plaintiff. (Id. at 38). The ALJ also explained that the limitations for foot controls and environmental factors were not supported by the record, and it was unclear what Dr. Wirth was referring to when he gave Plaintiff limitations for "heavy equipment." (Id.). Finally, the ALJ noted that the opinion was inconsistent with evidence from other sources, including orthopedic records, which demonstrated decreased lumbar range of motion, but normal strength and sensation. (Id.).
Plaintiff contends that the ALJ "fail[ed] to assess the opinions per the regulations," pointing specifically to the ALJ's purported failure to explain his assessment of Dr. Wirth's opinions that Plaintiff would be out of work and off-task due to his impairments. (Dkt. 15-2 at 36). As noted above, the ALJ thoroughly explained why he found Dr. Wirth's numerous opinions to be not persuasive, and offered proper reasons for his findings. (See Dkt. 5 at 37-38). Indeed, even under the old regulations, an ALJ is not required to credit a treating physician's opinion when it is internally inconsistent, not supported by the record, or contrary to other evidence in the record. See, e.g., Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (treating physician rule does not require deference to opinion of claimant's treating physician when the opinion is not consistent with other substantial evidence in the record). Although the ALJ did not discuss specifically each piece of evidence in the record, these conclusory assessments by Dr. Wirth are not entitled to controlling weight or any special deference (see, e.g., 20 C.F.R. §§ 404.1520c(a), 416.920c(a)), and the detailed explanation provided by the ALJ—which properly discusses both the supportability and consistency of the opinions—makes clear why the ALJ did not credit these assessments.
The Court turns next to the ALJ's assessment of the opinions offered by Dr. Dhawan. Dr. Dhawan opined in May 2018, June 2018, October 2018, and December 2018, that Plaintiff would be out of work "until further notice." (See Dkt. 5 at 38; see also id. at 992-93, 995-96). The ALJ proscribed "little persuasiveness" to these opinions because "a statement on an issue reserved to the Commissioner such as that the claimant is 'unable to work' does not even require a written analysis because such statements are neither inherently valuable nor persuasive," and further that the opinions related to a very narrow period shortly after the alleged onset date, and Dr. Dhawan did not have the opportunity to review further evidence in the record. (Id. at 38). It is well-settled that an ALJ is not required to credit a physician's statement on an issue reserved to the Commissioner, such as that a claimant is "unable to work." See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). Accordingly, the ALJ's assessment of these opinions was proper.
The ALJ also assessed Dr. Dhawan's September 2018 opinion, in which he opined that Plaintiff could lift/carry 20 pounds, and could not floor to waist lift, waist to shoulder lift, or perform repetitive pushing or pulling. (See Dkt. 5 at 38; see also id. at 994). The ALJ assigned "some persuasiveness" to this opinion to the extent it was consistent with Plaintiff's ability to perform sedentary work, and was supported by his treatment notes, which demonstrated that Plaintiff had issues with his back but was not reporting neck pain. (Id. at 38). The ALJ further noted that Dr. Dhawan's assessment was internally inconsistent, including because it was "unclear how the claimant could lift 20 pounds but could not lift things from the floor to his waist or from his waist to his shoulders." (Id.). The ALJ also noted that the assessment was made only five months after the alleged onset date, and Dr. Dhawan did not know how Plaintiff's treatment would progress at the time; for example, later evidence revealed that Plaintiff reported almost full resolution of cervical symptoms, as well as his ability to walk for exercise following his lumbar fusion surgery. (Id. at 38-39). Accordingly, the ALJ appropriately considered the supportability and consistency of Dr. Dhawan's September 2018 opinion, pointing to specific evidence in the record supporting his conclusions in those respects. As explained above, under the new regulations, the ALJ is not required to give controlling weight to the opinions of Plaintiff's treating providers, and the ALJ has adequately explained why he declined to credit certain limitations and opinions assessed by Dr. Dhawan, including by taking into account the consistency and supportability of his opinions.
The Court finally considers the ALJ's assessment of the opinion offered by Dr. Toor, who examined Plaintiff on September 6, 2018, and assessed moderate to marked limitations for standing, walking, bending, lifting, and carrying, as well as moderate limitations sitting for an extended time, and also for reaching, pushing, pulling, or twisting the cervical spine. (Id. at 39; see also id. at 898-902). The ALJ explained that Dr. Toor's opinion was "generally supported by his examination results," and that the records from other providers were consistent with the claimant being less limited than opined by Dr. Toor. (Id. at 39). The ALJ pointed to specific evidence in the record—including that Plaintiff reported essentially full resolution of his cervical symptoms in December 2018, and recent physical examinations showing decreased range of motion but normal strength, normal sensation, and negative straight-leg raising, normal gait, and no apparent issues with walking—concluding that this evidence suggested that Dr. Toor "overstated the claimant's stand/walk limitations." (Id.). Accordingly, the ALJ properly considered the consistency and supportability of Dr. Toor's opinion as required by the regulations, and identified specific evidence supporting this conclusion.
Plaintiff contends that the ALJ's conclusion that he did not experience a decline in functioning is not supported by the record. (Dkt. 15-2 at 34). Plaintiff points to various portions of the medical record documenting that he reported or complained of pain in his back, as well as medical examinations and treatment showing that Plaintiff had pain and limitations. (Id. at 34-36). As an initial matter, the ALJ is not required to credit Plaintiff's reports of pain, and as further explained below, the ALJ adequately explained why he did not find Plaintiff's complaints entirely credible. In addition, the fact that there is some evidence in the record that Plaintiff experienced pain and had limitations throughout the disability period does not require remand. As is apparent from the written determination, the ALJ recognized Plaintiff's impairments and limitations and assessed a highly restrictive RFC, which limits Plaintiff to sedentary work with additional limitations. "Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (quotations and citation omitted). In other words, simply because there is conflicting evidence in the record with respect to Plaintiff's condition does not mean that the ALJ's determination is not supported by substantial evidence. Rather, it is the ALJ's duty to evaluate the evidence in the record and to resolve conflicts in assessing the RFC. Monroe v. Comm'r of Soc. Sec., 676 F. App'x 5, 7 (2d Cir. 2017) ("Genuine conflicts in the medical evidence are for the Commissioner to resolve."). Accordingly, remand is not required on this basis.
In sum, the ALJ properly discussed each medical opinion in the record, and his analysis complies with the aforementioned regulations pertaining to the evaluation of medical evidence for claims filed after March 27, 2017, particularly as they require the ALJ to discuss the supportability and consistency of the opinions. Further, it is clear that the ALJ meaningfully engaged with the medical records and explained how they supported or contradicted the various medical opinions, as evidenced by his specific citations to the record. Accordingly, remand is not required on this basis.
D. Plaintiff's Symptoms and the ALJ's Credibility Assessment
Plaintiff's last and final argument is that the ALJ failed to properly assess his symptoms. Specifically, Plaintiff contends that the ALJ disregarded his symptoms based solely upon the lack of objective medical evidence, and failed to consider other factors required for the evaluation of symptoms. (See Dkt. 15-2 at 39, 41).
The ALJ, who has the "opportunity to observe witnesses' demeanor, candor, fairness, intelligence and manner of testifying," is "best-positioned to make accurate credibility determinations." Whiting v. Astrue, No. CIV.A. 1:12-274, 2013 WL 427171, at *6 (N.D.N.Y. Jan. 15, 2013), adopted, 2013 WL 427166 (N.D.N.Y. Feb. 4, 2013). As such, "credibility findings of an ALJ are entitled to great deference and therefore can be reversed only if they are patently unreasonable." Perez v. Barnhart, 440 F. Supp. 2d 229, 235 (W.D.N.Y. 2006) (quotation omitted).
In assessing the credibility of a claimant's subjective complaints, the Commissioner's regulations require ALJs to employ a two-step inquiry. Meadors v. Astrue, 370 F. App'x 179, 183 (2d Cir. 2010). "First, the ALJ must determine whether the claimant suffers from a 'medically determinable impairment[ ] that could reasonably be expected to produce' " his symptoms. Id. (quoting 20 C.F.R. § 404.1529(c)(1)). "Second, the ALJ must evaluate the intensity and persistence of those symptoms considering all of the available evidence; and, to the extent that the claimant's [subjective] contentions are not substantiated by the objective medical evidence, the ALJ must engage in a credibility inquiry." Id. Here, the ALJ considered Plaintiff's symptoms:
At the hearing, the claimant alleged that he is unable to work due to multiple impairments. He stated that he has had fusion surgery to his neck and lower back, and he still experiences pain in both locations. He stated he still gets numbness in his arms and legs. He reported he has had difficulty gripping things ever since he tore his rotator cuff and he also has limitations with reaching. He indicated that any bending or lifting is very difficult for him. Overall, the claimant alleged an inability to engage in any full time employment due to his medical issues.(Dkt. 5 at 33).
Thereafter, the ALJ properly applied the two-step inquiry. At the first step, the ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms." (Id.). At the second step, the ALJ found that Plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." (Id.). The ALJ further recognized that "whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the undersigned must consider other evidence in the record to determine if the claimant's symptoms limit the ability to do work related activities." (Id.).
Accordingly, the ALJ assessed Plaintiff's credibility and explained why his complaints were not supported by other evidence in the record. The ALJ first explained how Plaintiff's complaints were not supported by medical evidence in the record (id.), including by pointing to specific medical records demonstrating Plaintiff's limitations with respect to his cervical and lumbar spine impairments (id. at 33-35). The ALJ concluded that, given Plaintiff's longitudinal record, including multiple fusion surgeries, Plaintiff had "significant limitations," but further explained:
Despite the relative lack of treatment for shoulder issues and the claimant's documented intact dexterity at the consultative examination, the undersigned has limited the claimant to occasional overhead reaching and occasional handling. However, the claimant's own statements to his medical providers establish that he has had an excellent result from his cervical fusion. His recovery from lumbar fusion has been less spectacular, but he is still able to engage in walking on a treadmill and at the gym. With some exceptions immediately preceding his fusion surgeries, the claimant's baseline examination shows full strength in all extremities and normal gait. There is little treatment for shoulder issues and little evidence of joint abnormalities attendant to psoriatic arthritis. There is no evidence for the regular use of an assistive device. These factors establish that more restrictive limitations are not appropriate.(Id. at 36).
Contrary to Plaintiff's argument, the ALJ considered other factors separate from the objective medical evidence in assessing Plaintiff's credibility, including Plaintiff's reports of pain, his daily activities, the opinion evidence in the record, and other treatment Plaintiff received for his pain. (See, e.g., id. at 33 (discussing Plaintiff's testimony that he continues to experience pain at his neck and lower back, experiences numbness in his arms and legs, has difficulty gripping things, and has limitations reaching, bending, and lifting); id. at 33-34 (discussing Plaintiff's surgeries); id. at 34 (discussing that at December 2018 orthopedic appointment, Plaintiff reported no pain with neck movement, and resolution of numbness and tingling); id. at 34-35 (discussing Plaintiff's reports with respect to his lumbar pain, including that he reported improvement, and he can walk on a treadmill at home and in the gym)). To the extent Plaintiff contends that remand is required because the ALJ did not explicitly discuss each factor relevant to determining his credibility, any such error would not require remand. See, e.g., Cichocki v. Astrue, 534 F. App'x 71, 76 (2d Cir. 2013) ("Because the ALJ thoroughly explained his credibility determination and the record evidence permits us to glean the rationale of the ALJ's decision, the ALJ's failure to discuss those factors not relevant to his credibility determination does not require remand."); Lao v. Colvin, No. 14-CV-7507(ADS), 2016 WL 2992125, at *16 (E.D.N.Y. May 23, 2016) ("Although the ALJ did not explicitly consider all of these factors in evaluating the Plaintiff's statements concerning the intensity of his symptoms; the ALJ did consider evidence beyond the medical evidence in the record, including the Plaintiff's own statements; the medications he was taking; and the medical opinions of the Plaintiff's treating and non-treating physicians. Thus, the ALJ did not, as the Plaintiff contends, discount the Plaintiff's statements solely on the basis of the objective medical evidence."). Accordingly, remand is not required on this basis.
CONCLUSION
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings (Dkt. 19) is granted, and Plaintiff's motion for judgment on the pleadings (Dkt. 15) is denied.
SO ORDERED.