Opinion
20-CV-8521 (PAE) (JW)
07-15-2022
CATALIN YAMYLETH ELIGIO, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
JENNIFER E. WILLIS, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE
INTRODUCTION
Catalin Yamyleth Eligio (“Eligio”) commenced this action against the Commissioner of Social Security (“Commissioner”), seeking review of an administrative law judge's (“ALJ”) decision of August 14, 2019, finding her ineligible for Supplemental Security Income benefits, pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1385. Before the Court are the parties' motions for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
ALJ'S DECISION
The ALJ, Dina R. Loewy, found that Eligio: (1) has not engaged in substantial gainful activity since August 11, 2017, the application date; (2) “has the following severe impairments: s/p medulloblastoma treatment, dysmetria, hearing loss, and major depressive disorder”; (3) does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) has the residual functional capacity to perform sedentary work, except that, after sitting for 60 minutes, she “must be able to change position at the workstation for 2 to 3 minutes while remaining on task,” “can stand or walk for up to 15 minute increments before being allowed to sit or stand at the workstation for two or three minutes while on task before resuming standing or walking,” “can occasionally climb ramps or stairs, but generally just a few steps and rarely full flights,” “can never climb ladders, ropes, or scaffolds,” “can occasionally balance, stoop, kneel, or crouch but she can never crawl,” “can frequent [sic] reach, handle, and finger,” “can perform jobs not requiring frequent verbal or telephone communication,” “can perform jobs not requiring fast-paced typing speed requirements,” “must avoid all exposure to hazardous machinery unprotected heights and operational control of moving machinery,” “can perform simple, routine and repetitive tasks,” and “can perform work free of fast-paced production requirements such as having to produce 50 widgets a day”; (5) has no past relevant work; (6) was a younger individual age 18-44, on the date the application was filed; and (7) has at least a high school education and is able to communicate in English. The ALJ determined that transferability of job skills is not an issue since Eligio does not have past relevant work and, considering her age, education, work experience and residual functional capacity, jobs exist in significant numbers in the national economy that Eligio can perform, such as a bench worker, a polisher of optical goods and an inspector of electronic components. The ALJ concluded that Eligio has not been under disability since August 11, 2017.
In determining the severity of Eligio's mental impairments, the ALJ considered whether “paragraph B” criteria of listing 12.04 are satisfied, finding the following in the four broad areas of functioning: (1) moderate limitation in understanding, remembering, or applying information; (2) mild limitation in interacting with others; (3) moderate limitation in concentrating, persisting, or maintaining pace; and (4) moderate limitation in adapting or managing oneself.
“Disability Evaluation Under Social Security, 12.00 Mental Disorders - Adult,” Listing 12.04 Depressive, bipolar and related disorders,” paragraph B.1 defines “Understand, remember, or apply information (see 12.00E1),” as follows:
This area of mental functioning refers to the abilities to learn, recall, and use information to perform work activities. Examples include: understanding and learning terms, instructions, procedures; following one- or two-step oral instructions to carry out a task; describing work activity to someone else; asking and answering questions and providing explanations; recognizing a mistake and correcting it; identifying and solving problems; sequencing multi-step activities; and using reason and judgment to make work-related decisions. These examples illustrate the nature of this area of mental functioning.
“Disability Evaluation Under Social Security, 12.00 Mental Disorders - Adult,” Listing 12.04 Depressive, bipolar and related disorders,” paragraph B.2 defines “Interact with others (see 12.00E2),” as follows:
This area of mental functioning refers to the abilities to relate to and work with supervisors, coworkers, and the public. Examples include: cooperating with others; asking for help when needed; handling conflicts with others; stating own point of view; initiating or sustaining conversation; understanding and responding to social cues (physical, verbal, emotional); responding to requests, suggestions, criticism, correction, and challenges; and keeping social interactions free of excessive irritability, sensitivity, argumentativeness, or suspiciousness.
These examples illustrate the nature of this area of mental functioning.
“Disability Evaluation Under Social Security, 12.00 Mental Disorders - Adult,” Listing 12.04 Depressive, bipolar and related disorders,” paragraph B.3 defines “Concentrate, persist, or maintain pace (see 12.00E3),” as follows:
This area of mental functioning refers to the abilities to focus attention on work activities and stay on task at a sustained rate. Examples include: initiating and performing a task that you understand and know how to do; working at an appropriate and consistent pace; completing tasks in a timely manner; ignoring or avoiding distractions while working; changing activities or work settings without being disruptive; working close to or with others without interrupting or distracting them; sustaining an ordinary routine and regular attendance at work; and working a full day without needing more than the allotted number or length of rest periods during the day.
These examples illustrate the nature of this area of mental functioning.
“Disability Evaluation Under Social Security, 12.00 Mental Disorders - Adult,” Listing 12.04 Depressive, bipolar and related disorders,” paragraph B.4 defines “Adapt or manage oneself (see 12.00E4),” as follows:
This area of mental functioning refers to the abilities to regulate emotions, control behavior, and maintain well-being in a work setting. Examples include: responding to demands; adapting to changes; managing your psychologically based symptoms; distinguishing between acceptable and unacceptable work performance; setting realistic goals; making plans for yourself independently of others; maintaining personal hygiene and attire appropriate to a work setting; and being aware of normal hazards and taking appropriate precautions. These examples illustrate the nature of this area of mental functioning.
Concerning medical opinions, the ALJ found persuasive certified pediatric nurse practitioner, Kathleen Shea's (“Shea”) June 2017 opinion that Eligio retained “the ability to perform sedentary work with additional postural, manipulative, and environmental limitations,” because she treated Eligio for several years, and her opinion is “well explained, consistent and supported by treatment records and consultative examination findings.” The ALJ found unpersuasive the October 2017 opinion by psychiatric consultative examiner Stamatoula Georgiou, PhD (“Dr. Georgiou”), that Eligio “may have difficulties regulating her emotions” because “it is vague and speculative and because this examiner noted that the results of his evaluations did not seem consistent with the claimant's history.” The ALJ considered the findings by state agency medical consultants, M. D'Ortona's, Psy.D. (Dr. D'Ortona”), that Eligio's psychiatric impairment was non-severe in December 2017, and Dr. A. Vinluan's (“Dr. Vinluan”) that, in August 2018, Eligio retained the ability to perform light work with additional postural, manipulative, communicative, and environmental limitations, finding them unpersuasive because “they are inconsistent and unsupported by subsequent treatment record, consultative examination findings, and hearing testimony, which warrants more restrictive exertional limitations and a finding that the claimant's psychiatric impairment is severe.”
The ALJ erroneously referred to Kathleen Shea as “treating physician Dr. Shea” and “Dr. Shea.” citing to evidence of Eligio's June 2017 treatment, exhibit “11F, pgs. 18-20.” When making persuasiveness findings, the ALJ referred to “Kathleen Shea, CPNP's opinion from June 2017,” citing to exhibit “11F, pgs. 18-20.” The Social Security Administration's certified administrative record indicates, in its Court Transcript Index, that exhibit 11F is located at pages 478-566. However, the certified administrative record does not indicate exhibit numbers on any of its pages. Page 478 of the certified administrative record indicates it is a letter dated August 31, 2017, from New York State Office of Temporary and Disability Assistance, Division of Disability Determination, to “Herbert Irving/Pediatric Oncol,” requesting information from his records. It appears that exhibit “11F, pgs. 18-20” corresponds to the certified administrative record pages 495-497. Page 495 indicates it is a “Cancer Disability Medical Report” requested by New York State Education Department, Office of Adult Career and Continuing education Services-Vocational Rehabilitation (ACCES-VR) and directed to Columbia University Medical Center. Pages 496 and 497 contain a signature appearing to be that of “Kathleen Shea CPNP,” dated “6/21/2017.” No evidence of “Dr. Shea” or “treating physician Dr. Shea” appears on the pages cited by the ALJ. The parties do not dispute the ALJ's erroneous reference to Kathleen Shea as “Dr. Shea” or “treating physician Dr. Shea,” or claim any prejudice from it.
The ALJ found unpersuasive the September 2010 opinion from Boston Road Pediatrics that Eligio had mild limitations in the “paragraph B” criteria and that she would be off task 5 to 10% a day, because it was provided by a pediatrician rather than a psychiatrist, and “it is inconsistent and unsupported by subsequent treatment records and the totality of the medical evidence of record, which warrants a finding that the claimant's psychiatric impairment is severe.” Moreover, the vocational expert testified that ”the most off task one could be and maintain employment is 10%, so even if the claimant were off task 10% of the day, the cited jobs would be available.” The ALJ also found unpersuasive the September 2018 opinion from Boston Road Pediatrics that Eligio “retained the ability to perform medium [sic] with additional postural limitations” because “it is inconsistent and unsupported by the totality of the medical evidence of record and hearing testimony, which warrant more restrictive exertional, manipulative, postural and environmental limitations.” The ALJ considered the October 2017 opinion by consultative internal medicine examiner Dr. Dipti Joshi (“Dr. Joshi”) that Eligio “had marked limitations with activities that require balance and moderate limitations with squatting, laying down, audition in both ears, lift, carry, push, pull, walk, climb, and stand,” finding it “non-persuasive because it is too restrictive and is not supported or consistent with treatment records or consultative examination findings, which reveal that the claimant retained full muscle strength in her bilateral lower extremities and left upper extremity, with no evidence of muscle atrophy and the ability to ambulate without an assistive device.”
PLAINTIFF'S CONTENTIONS
Eligio argues that: (1) “the ALJ's mental RFC [residual functional capacity] determination lacks substantial evidence because it is not guided by opinion evidence from a medical source”; and (2) “the ALJ's RFC determination lacks substantial evidence because it does not incorporate plaintiff's right-hand limitations.” Concerning the ALJ's mental residual functional capacity, Eligio asserts that “the ALJ crafted the mental RFC out of thin air without guidance from any opinion evidence,” “rejected all of the mental opinion evidence in the record and therefore has failed to create a logical bridge between the evidence and her mental RFC.” “Given the absence of any medical opinion in the record addressing [Eligio's] mental impairments, this Court is left to wonder ‘how the ALJ arrived at these findings.'” “It is impermissible for an ALJ to reject all evidence and craft an RFC based on her own interpretation of the data.” The ALJ's error is not harmless.
“The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting.” SSR 85-15. A proper evaluation and development of the record may indicate Plaintiff's limitations would preclude her ability to perform any of these basic mental demands. Furthermore, her mental limitations may prevent her ability from
performing work on a “regular and continuing basis” as required by SSR 96-8p. This Court is unable to conduct a meaningful review of the [residual functional capacity] without guidance from a medical opinion.
Since the Court “is unable to conduct a meaningful review of the RFC without guidance from a medical opinion,” remand is required “to fully develop the record” and provide a residual functional capacity supported by substantial evidence.
Concerning the ALJ's physical residual functional capacity determination, Eligio asserts that the limitation to work that does not require fast-paced typing speed does not address adequately her right-hand imitations, and the decision does not provide any explanation regarding how the ALJ arrived at this limitation. The ALJ “picks out one medical note” stating that Eligio received an incomplete in her typing class due to right-sided weakness, but “ignores the record as whole, which reflects much greater limitations.” According to Eligio, her medical providers noted significant right-hand limitations that have been consistently worsening since her craniotomy in 2006, including Dr. Shea's note that she is unable to use her right hand for any school activities, an examination note of poor right-hand coordination with tremor, decreased strength in the right hand, and Dr. Joshi's examination note of reduced strength in her right arm. Eligio testified that she has shakiness and tremors on her right side, as well as problems buttoning, using zippers, holding a cell phone, or pressing buttons on a cell phone, and she is only able to use her left hand. The ALJ's ignoring of Eligio's right-hand limitations is not a harmless error because the vocational expert testified that an individual must have “good bimanual dexterity with a reach free of both of the extremities in all planes, reaching, handling and fingering” in order to perform sedentary work,” and “an individual who was reduced to occasional use of their non-dominant hand would be unable to work with the other limitations in the ALJ's hypothetical.”
DEFENDANT'S CONTENTIONS
The defendant argues that substantial evidence supports the ALJ's residual functional capacity finding as well as the determination that Eligio was able to perform work that exists in the national economy. Concerning mental residual functional capacity, the defendant contends that nothing in the statute or regulations indicates that the ALJ must rely on a single medical source opinion in assessing a residual functional capacity. Dr. D'Ortona opined that Eligio's mental impairments were non-severe for purpose of evaluating the paragraph B and the paragraph C criteria of Listing 12.04, which is not an assessment of residual functional capacity. Dr. Georgiou's finding that Eligio had no mental limitations, except for difficulties regulating her emotions, finds “some support in the record evidence showing a high level of mental functioning, including unremarkable mental examination findings.” The ALJ determined reasonably that Eligio was more limited than Dr. D'Ortona and Dr. Georgiou opined, and she explained why the residual functional capacity “determination did not precisely track any individual medical opinion.” The defendant maintains that Eligio cannot show that no reasonable factfinder could have drawn the same conclusions as the ALJ based on this record.
Concerning physical residual functional capacity, the defendant contends that the ALJ found unpersuasive “Dr. Cornielle's September 2018 assessment” that Eligio could perform medium work with additional postural limitations, and Dr. Joshi's findings of marked limitations with activities that required balance and moderate limitations with squatting, lying down, audition in both ears, lifting, carrying, pushing, pulling, walking, climbing, and standing. The ALJ explained properly the basis for her findings. Contrary to Eligio's contention, although the record reflects dysmetria in her right hand with related weakness, it nowhere indicates that this condition has been worsening since her craniotomy. Eligio reported to nurse practitioner Shea that “she avoided using her right hand and never elected to do physical or occupational therapy for it because she has gotten by at school using only her left hand.” While nurse practitioner Shea remarked that Eligio may have limitations related to manual dexterity and motor coordination, the ALJ noted correctly that Eligio's hand and finger dexterity were intact with nearly full grip in her right hand, and normal ability to zip, button, and tie. Thus, the ALJ accepted a portion of Dr. Joshi's opinion finding only moderate limitations with lifting, carrying, pushing, and pulling and only mild limitations with right hand grip. The ALJ discussed non-opinion evidence concerning Eligio's hand functioning, including that she was left-hand dominant, could lift and carry fifteen pounds, tend to her self-care tasks, travel on public transportation, perform a work-study job scanning books, attend college, prepare meals, and perform various household chores. Moreover, progress notes reflected normal range of motion in all extremities and joints. According to the defendant, the ALJ reconciled the evidence by incorporating additional restrictions into the physical residual functional capacity and specified that Eligio could reach, handle and finger bilaterally no more than frequently. Consistent with Eligio's identification of typing as the school-related activity that was affected by her right-hand impairment, the ALJ restricted Eligio further from performing jobs with fast-paced typing speed requirements.
The defendant makes citation to the certified administrative record pages 613-615, which contain an ineligible signature and do not contain typed name of the doctor who signed the “09/15/18” Medical Source Statement. That doctor stated that he or she treated Eligio since “12/10/07.” Boston Road Medical Center document in the record contains the following information for “Patient” Eligio: “Provider: Cornielle, Jorge L. 06/09/2017” (Tr. 567) and “Provider: Cornielle, Jorge L. 06/08/2017” (Tr. 569). “Progress Notes” by “Provider: Shauntay Thomas,” dated “01/12/2017,” indicate: “Pcp: Manuel Franco Cornielle” (Tr. 570), and the “Follow-Up Visit” note by Shea, dated September 20, 2017, indicates: “Dr. Corneale is PCP-last seen July, 2017” (Tr. 486). The record also shows that “Jorge L. Cornielle” was Eligio's “PCP,” who modified “Rhinitis NOS” on “8/21/2008” (Tr. 569), and that on 2/21/2017, “Franco Cornielle, Manuel” added “Depression, major NOS” to Eligio's “Active Problem List.” The identity and the specialty of the doctor the defendant referenced as the person who authored and signed the “September 2018 assessment” is unclear.
The defendant asserts that Eligio does not challenge the vocational expert's testimony or its sufficiency to support the ALJ's findings at step five. Since substantial evidence supports the findings upon which the vocational expert hypothetical was based, the ALJ relied properly on the vocational expert's testimony in finding that sufficient jobs exist in the national economy that Eligio could perform.
PLAINTIFF'S REPLY
According to Eligio, her argument is not that the ALJ had to craft a residual functional capacity that is consistent with a medical opinion; rather, her argument is that
the ALJ rejected all of the guidance provided by several medical professionals and crafted the RFC without providing the logical bridge
necessary and required by law to support the RFC with substantial evidence. Dkt. No. 22 at 15-16. Defendant alleges that because the ALJ simply considered the opinions of Dr. D'Ortona and Dr. Georgiou, somehow that creates the logical bridge between the resulting RFC and the evidence. Plaintiff asserts that the ALJ is not in a position to make lay interpretation of mental health data without the guidance of professionals educated and experienced in the area of mental health and that by rejecting the opinions of all the medical professionals, the ALJ has in fact substituted his own lay interpretation of the evidence in place of that of physicians. Dkt No. 22 at 16. Simply put, how did the ALJ arrive at his RFC conclusion without the guidance of mental health professionals? Here, the ALJ did not make that connection, and it is not proper for the Commissioner to make that connection himself.
In connection with Eligio's argument that the ALJ failed to incorporate her right-hand limitations in the residual functional capacity assessment, the defendant “relies on a post hoc rationalization of the evidence to support her argument,” which is improper. Eligio contends that the ALJ did not address how she arrived at the right-hand limitations provided in the residual functional capacity; rather, the defendant
attempts to make this connection in the absence of any explanation from the ALJ. Dkt. No. 24 at 21-22. Defendant argues the ALJ reconciled the genuine conflict in the evidence. Dkt. No. 24 at 23. However, Plaintiff's argument is centered around the fact that the ALJ in fact did not reconcile the evidence. The ALJ provided no explanation at all where the right[-]hand limitations came from, especially in light of probative evidence that tends to show much greater limitations as argued by Plaintiff.
Eligio contends that she identified the vocation expert's testimony that would have eliminated jobs in the national economy had the ALJ accounted for her right-hand limitations properly. The defendant failed to prove that the ALJ found correctly that Eligio could perform work that exists in the national economy.
LEGAL STANDARD
“After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. §405(g).
A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by “substantial evidence” or if the decision is based on legal error. Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citations omitted).
“Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.” Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (internal citations omitted).
To qualify for disability benefits, an individual must be unable “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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Social Security Administration's regulations establish a five-step process for determining a disability claim. See 20 C.F.R. § 416.920(a)(4).
If at any step a finding of disability or nondisability can be made, the SSA will not review the claim further. At the first step, the agency will find nondisability unless the claimant shows that he is not working at a “substantial gainful activity.” §§ 404.1520(b), 416.920(b). At step two, the [Social Security Administration] will find nondisability unless the claimant shows that he has a “severe impairment,” defined as “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.”
§§ 404.1520(c), 416.920(c). At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. §§ 404.1520(d), 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the [Social Security Administration] assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the [Social Security Administration] to consider so-called “vocational factors” (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy.Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 379-80 (2003).
“The applicant bears the burden of proof in the first four steps of the sequential inquiry; the Commissioner bears the burden in the last.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).
The Social Security Administration's regulations provide the following in connection with the agency's consideration of medical opinions and prior administrative medical findings for claims filed on or after March 27, 2017:
(a) How we consider medical opinions and prior administrative medical findings. We 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 your medical sources. When a medical source provides one or more medical opinions or prior administrative medical findings, we will consider those medical opinions or prior administrative medical findings from that medical source together using the factors listed in paragraphs (c)(1) through (c)(5) of this section, as appropriate. The most important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are support ability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section). We will articulate how we considered the medical opinions and prior administrative medical findings in your claim according to paragraph (b) of this section.
(b) How we articulate our consideration of medical opinions and prior administrative medical findings. We will articulate in our determination
or decision how persuasive we find all of the medical opinions and all of the prior administrative medical findings in your case record. Our articulation requirements are as follows:
(1) Source-level articulation. Because many claims have voluminous case records containing many types of evidence from different sources, it is not administratively feasible for us to articulate in each determination or decision how we considered all of the factors for all of the medical opinions and prior administrative medical findings in your case record. Instead, when a medical source provides multiple medical opinion(s) or prior administrative medical finding(s), we will articulate how we considered the medical opinions or prior administrative medical findings from that medical source together in a single analysis using the factors listed in paragraphs (c)(1) through (c)(5) of this section, as appropriate. We are not required to articulate how we considered each medical opinion or prior administrative medical finding from one medical source individually.
(2) Most important factors. The factors of supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section) are the most important factors we consider when we determine how persuasive we find a medical source's medical opinions or prior administrative medical findings to be. Therefore, we will explain how we considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings in your determination or decision. We may, but are not required to, explain how we considered the factors in paragraphs (c)(3) through (c)(5) of this section, as appropriate, when we articulate how we consider medical opinions and prior administrative medical findings in your case record.
(3) Equally persuasive medical opinions or prior administrative medical findings about the same issue. When we find that two or more medical opinions or prior administrative medical findings about the same issue are both equally well-supported (paragraph (c)(1) of this section) and consistent with the record (paragraph (c)(2) of this section) but are not exactly the same, we will articulate how we considered the other most persuasive factors in paragraphs (c)(3) through (c)(5) of this section for those medical opinions or prior administrative medical findings in your determination or decision.
(c) Factors. We will consider the following factors when we consider the medical opinion(s) and prior administrative medical finding(s) in your case:
(1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.
(3) Relationship with the claimant. This factor combines consideration of the issues in paragraphs (c)(3)(i)-(v) of this section.
(i) Length of the treatment relationship. The length of time a medical source has treated you may help demonstrate whether the medical source has a longitudinal understanding of your impairment(s).
(ii) Frequency of examinations. The frequency of your visits with the medical source may help demonstrate whether the medical source has a longitudinal understanding of your impairment(s).
(iii) Purpose of the treatment relationship. The purpose for treatment you received from the medical source may help demonstrate the level of knowledge the medical source has of your impairment(s).
(iv) Extent of the treatment relationship. The kinds and extent of examinations and testing the medical source has performed or ordered from specialists or independent laboratories may help demonstrate the level of knowledge the medical source has of your impairment(s).
(v) Examining relationship. A medical source may have a better understanding of your impairment(s) if he or she examines you than if the medical source only reviews evidence in your folder.
(4) Specialization. The medical opinion or prior administrative medical finding of a medical source who has received advanced education and training to become a specialist may be more persuasive about medical issues related to his or her area of specialty than the medical opinion or prior administrative medical finding of a medical source who is not a specialist in the relevant area of specialty.
(5) Other factors. We will consider other factors that tend to support or contradict a medical opinion or prior administrative medical finding. This includes, but is not limited to, evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of our disability program's policies and evidentiary requirements. When we consider a medical source's familiarity with the other evidence in a claim, we will also consider whether new evidence we receive after the medical source made his or her medical opinion or prior administrative medical finding makes the medical opinion or prior administrative medical finding more or less persuasive.
(d) Evidence from nonmedical sources. We are not required to articulate how we considered evidence from nonmedical sources using the requirements in paragraphs (a) through (c) in this section.20 C.F.R. § 416.920c.
“Medical source means an individual who is licensed as a healthcare worker by a State and working within the scope of practice permitted under State or Federal law, or an individual who is certified by a State as a speech-language pathologist or a school psychologist and acting within the scope of practice permitted under State or Federal law.” 20 C.F.R. § 416.902(i). “Acceptable medical source means a medical source who is a . . . Licensed Advanced Practice Registered Nurse, or other licensed advanced practice nurse with another title, for impairments within his or her licensed scope of practice (only with respect to claims filed (see § 416.325) on or after March 27, 2017).” 20 C.F.R. § 416.902(a)(7).
APPLICATION OF LEGAL STANDARD
Mental Residual Functional Capacity
The ALJ found that Eligio has severe major depressive disorder, relying on the January 12, 2017 assessment, contained in the “Progress Notes” by “Provider: Thomas Shauntay.” The January 12, 2017 “Progress Notes” indicate “Assessment: 1. Depression, major NOS- 296.00 (Primary), moderate severe depression 2. Other fatigue - R53.83” and the following under “Depression screening”:
PHQ-2 in last 2 weeks have you been bothered by Little interest or pleasure in doing things No, Feeling down depressed or hopeless Yes. PHQ-9 Little interest in pleasure doing things Nearly every day, Feeling down, depressed, or hopeless Several days, Trouble falling or staying asleep, or sleeping too much Nearly every day, Feeling tired or having little energy? Nearly every day, Poor appetite or overeating Nearly every day, Feeling bad about yourself-or that you are a failure or have let yourself or your family down Several days, Trouble concentrating on things, such as reading the newspaper or watching television Several days, Moving or speaking slowly that other people could have noticed. Or opposite- being so fidgety More than half the days, Thoughts that you
would be better off dead, or of hurting yourself in some way Several days (Consider Suicide Assessment Risk), Total Score 17, Interpretation Moderately severe depression.
20 y/o female reports since start of new year has been feeling tired all the time, sleeping alot [sic] and generally weak, here for blood testing. when asked if she felt down or depressed she responded yes since start of new yr.
Reports that since getting a [sic] incomplete in her typing class she has been very upset and depressed. pt. has limitation which causes her to have weakeness [sic] on right side which further restricts her from typing at her desired speed. Weakness on right side is s/p brain injury. Writer encouraged student to appeal the incomplete grade, provider with [sic] give student letter describing disability.
Dr. Georgiou's October 17, 2017 findings include, in pertinent parts:
MENTAL STATUS EXAMINATION: The claimant was cooperative. Manner of relating was adequate.
APPEARANCE: She looked the same as age. She was casually dressed and well-groomed.
SPEECH: Fluent. Voice was monotonous. Expressive and receptive language was adequate.
THOUGHT PROCESS: Coherent and goal directed.
AFFECT: Dysphoric.
MOOD: Dysthymic.
SENSORIUM: Clear ORIENTATION: x3. ATTENTION AND CONCENTRATION: Intact. RECENT AND REMOTE MEMORY SKILLS: Intact.
COGNITIVE FUNCTIONING: Average. General fund of information was appropriate to experience.
INSIGHT: Fair.
JUDGMNET: Fair.
CONSISTENCY: The results of the evaluation do not seem consistent with the claimant's history.
MODE OF LIVING: Although the claimant reports thoughts of suicide and feelings of depression, she has no difficulties with dressing, bathing, and grooming. She cooks, cleans, does laundry, does shopping, managers her own money, and uses public transportation. She turns to her mother for assistance. She has a few friends. She likes to “go out to shop and have fun.” Her family relations are going well. She reports she wants to stop going to school and move to New Orleans to be closer to her sister. She spends her days at school and working part-time.
MEDICAL SOURCE STATEMENT: The claimant may have difficulties regulating her emotions.
The results of the present evaluation appear to be consistent with psychiatric symptoms, however, this does not appear to be significantly interfering with her ability to function on a daily basis.
DIAGNOSIS:
Unspecified depressive disorder.
Medical diagnosis reported by the claimant: Hearing loss.
RECOMMENDATIONS: The claimant may benefit from counseling.
EXPECTED DURATION OF IMPAIRMENT AND TIME FRAME FOR SUGGESTED THERAPHY: Unknown.
PROGNOSIS: Fair.
ABIILITY TO MANAGE FUNDS: The claimant will be able to manage her own funds.
In making her findings of: (b) moderate limitations in understanding, remembering, or applying information, concentrating, persisting, or maintaining pace, and adapting or managing oneself; and (c) mild limitation in interacting with others, the ALJ relied on Dr. Georgiou's findings. The ALJ cited exhibit “12F, p.4” for the finding that Eligio “has difficulty managing her mood, which likely affects her interactions with others” and “which affects her ability to adapt and manage herself.” However, exhibit “12F, p.4,” containing the January 12, 2017 “Progress Notes,” does not: (1) state that Eligio “has difficulty managing her mood”; (2) mention Eligio's management of her mood; or (3) mention Eligio's mood. Rather, Dr. Georgiou's October 17, 2017 findings include “MOOD: Dysthymic” and “The claimant may have difficulties regulating her emotions.”
It appears from the record that the ALJ erroneously cited exhibit “12F, p.4,” containing the January 12, 2017 “Progress Notes,” to support her finding that Eligio “has difficulty managing her mood, which likely affects her interactions with others” and “which affects her ability to adapt and manage herself,” because no such finding exists in that document.
To the extent that the ALJ interpreted other findings in that document to conclude that Eligio “has difficulty managing her mood,” the ALJ committed an error of law. See Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“In the absence of supporting expert medical opinion, the ALJ should not have engaged in his own evaluations of the medical findings.”) (quoting Filocomo v. Chater, 944 F.Supp. 165, 170 (E.D.N.Y. 1996)). It appears from the record that, for the purpose of her findings of limitations in the severity of Eligio's mental impairments in connection with paragraph B criteria of listing 12.04, the ALJ relied on Dr. Georgiou's findings, including his findings related to Eligio's mood and that she “may have difficulties regulating her emotions,” since that is the only medical evidence that contains findings concerning what the ALJ described as Eligio's “difficulty managing her mood,” while, at the same time, finding unpersuasive Dr. Georgiou's finding that Eligio “may have difficulties regulating her emotions” for the purpose of assessing Eligio's residual functional capacity.
For the purpose of assessing the severity of limitations of Eligio's mental impairments, the AJ did not rely on Shea's opinion because Shea found “Psychiatric: patient's mood and affect at baseline,” which contradicts the ALJ's finding that Eligio “has difficulty managing her mood, which likely affects her interactions with others” and “which affects her ability to adapt and manage herself.”
The inconsistency of the ALJ's simultaneous reliance and rejection on Dr. Georgiou's findings concerning Eligio's mood and that she “may have difficulties regulating her emotions” constitutes an error of law and undermines the defendant's argument that substantial evidence supports the ALJ's decision. Moreover, the inconsistency between the ALJ's reliance on Dr. Georgiou's opinion to support the limitation findings in the four broad areas of mental functioning, and the basis for rejecting, in the residual functional capacity assessment, his finding that Eligio “may have difficulties regulating her emotions,” namely, “because it is vague and speculative” and “this examiner noted the results of his evaluation did not seem consistent with the claimant's history,” constitutes an error of law. If Dr. Georgiou's opinion was unpersuasive for the purpose of assessing the residual functional capacity because “this examiner noted the results of his evaluation did not seem consistent with the claimant's history,” the ALJ failed to explain the basis for her reliance on Dr. Georgiou's findings in determining the severity of Eligio's mental limitations, since Dr. Georgiou's notation about “CONSISTENCY' referred to all the results of his evaluation, not just his finding concerning Eligio's mood.
Similarly, the ALJ failed to explain: (a) what aspect of Dr. Georgiou's finding that Eligio “may have difficulties regulating her emotions” was “vague and speculative” for the purpose of assessing the residual functional capacity; and (b) the difference between Dr. Georgiou's finding that Eligio “may have difficulties regulating her emotions,” which was “vague and speculative,” and the ALJ' finding that Eligio “has difficulty managing her mood.”
In determining Eligio's residual functional capacity, the ALJ found persuasive and relied on Shea's June 2017 opinion that Eligio retained the ability to perform sedentary work, with additional postural, manipulative, and environmental limitations. Under “Prognosis: General (based on past experience with this diagnostic group)” in her June 2017 opinion, Shea indicated “Fair-Good. May have persistent functional limitations,” and under “Employability potential: b. Environmental and work conditions to be avoided,” she indicated: “May have limitations related to quality of speech, hearing, navigating the environment, attention, manual dexterity, motor coordination. Unable to lift more than 10 lbs. Should avoid hazardous machinery. She may have limited balance & limited climbing and kneeling.”
“Mental impairments are generally considered to be nonexertional, but depressions and conversion disorders may limit exertion.” SSR 85-15 (S.S.A. 1985), 1985 WL 56857 at * 2. “The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting.” SSR 85-15 (S.S.A. 1985), 1985 WL 56857 at *4. “Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A ‘regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8P (S.S.A. July 2, 1996), 1996 WL374184 at *2 (emphases in the original).
Shea's opinion is the only medical evidence on which the ALJ relied in support of her residual functional capacity determination. The ALJ relied on Shea's opinion to support certain postural, manipulative, and environmental limitations. However, in the residual functional capacity determination, it is not clear what served as the bases for the ALJ's limitations to: (1) “jobs not requiring frequent verbal or telephone communication”; (2) “simple, routine and repetitive tasks”; and (3) “work free of fast-paced production requirements.' All of these limitations appear to relate to the four areas of mental functioning in which the ALJ found moderate and mild limitations. It does not appear that Shea's finding that Eligio “[m]ay have limitation related to quality of speech, hearing” could support the ALJ's limitation to “jobs not requiring frequent verbal or telephone communication,” because Eligio's limitation indicated by Shea had nothing to do with the frequency, but with the “quality of speech, hearing.” As a result, the ALJ's limitation to nonfrequent verbal communication does not address any limitation in “quality of speech, hearing” identified by Shea. Shea did not make any findings concerning Eligio's abilities or limitations related to performing “simple, routine and repetitive tasks” and “work free of fast-paced production requirements.” Although the ALJ seemed to have accommodated Eligio's moderate limitation in “maintaining pace” by limiting her to “work free of fast-paced production requirement,” she did not address Eligio's limitations in concentrating and persisting.
It is not clear why the ALJ distinguished between “verbal” and “telephone communication,” since the record does not show that Eligio uses any assistive telephone device for hearing or speech impaired, and neither the record nor the ALJ mention Eligio's ability or limitation related to text communication via telephone.
The ALJ also did not identify any medical evidence in support of her findings related to mental residual functional capacity limitations. In the residual functional capacity assessment, the ALJ failed to: (i) account for moderate limitations in understanding, remembering, or applying information, concentrating, persisting, and adapting or managing oneself, and mild limitation in interacting with others; and (ii) explain how these limitations impacted the basic mental demands of competitive, remunerative, unskilled work, which “include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting.” The Court finds that ALJ's the residual functional capacity determination concerning the areas of Eligio's mental functioning is not supported by substantial evidence.
Physical Residual Functional Capacity
Eligio asserts that the ALJ's limitation to work that does not require fastpaced typing and speed requirements does not adequately address her right-hand limitations. However, the ALJ also included in the residual functional capacity that Eligio “can frequent [sic] reach, handle, and finger.” The record shows that, in limiting Eligio to “jobs not requiring fast-paced typing speed requirements,” the ALJ relied on the January 17, 2017 “Progress Note” indicating “weakeness [sic] on right side which further restricts her from typing at her desired speed.” The vocational expert testified, in connection with a hypothetical question involving a person who, “with regard to the non-dominant hand and arm, [was] limited to, at best, occasional fine and gross movements, reaching, handling fingering”: “The fact that they're unskilled sedentary jobs, they do require a good bimanual dexterity with a reach free of both of the extremities in all planes, reaching, handling and fingering.”
To support her residual functional capacity determination, the ALJ relied on Shea's opinion, which included the findings that Eligio: (i) has “decreased strength right hand”; (ii)has limitations in “Motor coordination (fine/gross/balance/stamina)”; and (iii) “[m]ay have limitations in . . . manual dexterity, motor coordination.” The ALJ did not find unpersuasive the following October 17, 2017 findings by Dr. Joshi: (a) “Dysmetria in the right side”; (b) “mild limits with her right[-]hand grip”; and (c) “FINE MOTOR ACTIVITY OF HANDS: Hand and finger dexterity intact. Grip strength 4/5 in the right hand. Normal ability to zip, button, and tie.” Although the ALJ stated that Shea's opinion was persuasive because it was “consistent and supported by treatment records and consultative examination findings,” the record reflects that Shea's findings concerning “Motor coordination (fine/gross/balance/stamina)” and “limitations in . . . manual dexterity, motor coordination” are not consistent with and supported by Dr. Joshi's findings under “FINE MOTOR ACTVITY OF HANDS.” The ALJ failed to explain how she reconciled this inconsistency and lack of support, which concern consistency and supportability, “the most important factors we consider when we determine how persuasive we find a medical source's medical opinions.” 20 C.F.R. §416.920c(b)(2). In light of the vocational expert's testimony that unskilled sedentary jobs “require a good bimanual dexterity with a reach free of both of the extremities in all planes, reaching, handling and fingering,” the Court finds that the ALJ's failure was an error of law, and her residual functional capacity determination is not supported by substantial evidence.
RECOMMENDATION
For the foregoing reasons, I recommend that: (1) the plaintiff's motion for judgment on the pleadings, Docket Entry No. 21, be granted and the case remanded pursuant to sentence four of 42 U.S.C. §405(g); and (2) the Commissioner's motion for judgment on the pleadings, Docket Entry No. 23, be denied.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
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 to file written objections. See also Fed.R.Civ.P. 6. Any requests for an extension of time for filing objections must be directed to Judge Engelmayer. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).