Opinion
7:22-cv-02380-VB-GRJ
04-24-2023
FREDERICK R., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES, UNITED STATES MAGISTRATE JUDGE:
In January of 2018, Plaintiff Wayne Frederick R.applied for Disability Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the application. Plaintiff, represented by Manhattan Legal Services, William D. Kaplan, Esq., of counsel, commenced this action seeking judicial review of the Commissioner's denial of benefits under 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
Plaintiff's name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
This case was referred to the undersigned for a report and recommendation on March 17, 2023. Presently pending are the parties' Motions for Judgment on the Pleadings under Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket No. 18, 24). For the following reasons, it is recommended that Plaintiff's motion should be granted, the Commissioner's motion should be denied, and this matter should be remanded for further proceedings.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on January 11, 2018, alleging disability beginning January 10, 2017. (T at 139-47).Plaintiff's application was denied initially and on reconsideration. He requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on November 27, 2018, before ALJ Mark Solomon. (T at 44-75). On December 17, 2018, ALJ Solomon issued a decision denying the application for benefits. (T at 725). The Appeals Council denied Plaintiff's request for review. (T at 1-6).
Citations to “T” refer to the administrative record transcript at Docket No. 13.
Plaintiff sought review in the United States District for the Southern District of New York. On August 5, 2020, the Honorable Barbara C. Moses, United States Magistrate Judge, approved a Stipulation and Order remanding the matter for further administrative proceedings under sentence four of 42 U.S.C. § 405 (g). (Docket No. 29, Case # 1:19-cv-06995-BCM).
ALJ Solomon held an administrative hearing on July 9, 2021. (T at 1026). Plaintiff appeared with counsel and testified. (T at 1032-1048). The ALJ also received testimony from Steven Sachs, a vocational expert. (T at 1050-1055). The ALJ conducted a further hearing on September 21, 2021. (T at 1006). Plaintiff appeared with counsel. (T at 1006). The ALJ received additional testimony from Yaakov Taitz, a vocational expert. (T at 1012-1022).
B. ALJ's Decision
On November 24, 2021, ALJ Solomon issued a decision denying the application for benefits. (T at 962-88). The ALJ found that Plaintiff met the insured status requirements under the Social Security Act through December 31, 2021, and had not engaged in substantial gainful activity since January 10, 2017 (the alleged onset date). (T at 968).
The ALJ concluded that Plaintiff's lumbar degenerative disc disease; sleep apnea; left shoulder degenerative joint disease; posttraumatic stress disorder (PTSD); and depression were severe impairments as defined under the Act. (T at 968). The ALJ found, however, that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 403, Subpart P, Appendix 1. (T at 969).
At step four of the sequential analysis the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform light work, as defined in 20 CFR 404.1567 (b), with the following limitations: he can sit for 6 hours; stand/walk for a total of 6 hours; lift/carry up to 20 pounds occasionally and 10 pounds frequently; perform occasional stooping and crouching; must avoid working at unprotected heights or with hazardous moving machinery; can work in a moderately noisy environment (office work); can remember, understand, and carry out instructions necessary to perform Specific Vocational Preparation (SVP) level 1 or 2 unskilled jobs, up to reasoning level 3; can make simple work-related decisions necessary for level 1 or 2 unskilled jobs; adapt to routine changes in the workplace; can maintain attention and concentration for routine, repetitive, rote work; is able to respond appropriately to supervision; and can have routine interpersonal contact with supervisors, occasional close interpersonal contact with co-workers, and brief superficial contact with the general public. (T at 971).
The ALJ concluded that Plaintiff could not perform his past relevant work as an aircraft engine mechanic or fuel truck delivery driver. (T at 981). However, considering Plaintiff's age (49 on the alleged onset date), education (at least high school), work experience, and RFC, the ALJ determined that there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 982). As such, the ALJ found that Plaintiff had not been under a disability, as defined under the Social Security Act, and was not entitled to benefits for the period between January 10, 2017 (the alleged onset date) and November 24, 2021 (the date of the ALJ's decision). (T at 983).
ALJ Solomon's second decision is considered the Commissioner's final decision.
C. Procedural History
Plaintiff commenced this action by filing a Complaint on March 23, 2022. (Docket No. 1). Plaintiff filed a motion for judgment on the pleadings, supported by a memorandum of law, on October 17, 2022. (Docket No. 18, 19). The Commissioner filed a motion for judgment on the pleadings, supported by a memorandum of law, on January 13, 2023. (Docket No. 24, 25). On March 13, 2023, Plaintiff submitted a reply memorandum of law in further support of his motion. (Docket No. 30). The matter was assigned to the undersigned for a Report and Recommendation on March 17, 2023.
II. APPLICABLE LAW
A. Standard of Review
“It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). The court's review is limited to “determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings, which are considered conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted).
“When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or when the ALJ's rationale is unclear, remand “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. Five-Step Sequential Evaluation Process
Under the Social Security Act, a claimant is disabled if he or she lacks the ability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months ....” 42 U.S.C. § 423(d)(1)(A).
A claimant's eligibility for disability benefits is evaluated pursuant to a five-step sequential analysis:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without
considering vocational factors such as age, education, and work experience.
4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform.See Rolon v. Commissioner of Soc. Sec., 994 F.Supp.2d 496, 503 (S.D.N.Y. 2014); see also 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
The claimant bears the burden of proof as to the first four steps; the burden shifts to the Commissioner at step five. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner determines whether the claimant can perform work that exists in significant numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).
III. DISCUSSION
Plaintiff raises eight arguments in support of his challenge to the ALJ's decision. First, Plaintiff contends that the ALJ failed to adequately address the evidence related to his migraine headaches. Second, Plaintiff asserts that the ALJ's step three Listings analysis was flawed. Third, Plaintiff challenges the ALJ's step two analysis. Fourth, he argues that the ALJ's RFC determination is not supported by substantial evidence. Fifth, Plaintiff contends that the ALJ failed to adequately develop the record. Sixth, he asserts that the ALJ erred in assessing the medical opinion evidence. Seventh, Plaintiff challenges the ALJ's credibility determination. Eighth, Plaintiff argues that the ALJ's step five analysis was flawed. The Court will address each argument in turn.
A. Migraine Headaches
The ALJ recognized that the record documented complaints of headaches two to three times per week, typically lasting from half a day to a full day. (T at 972). The ALJ found, however, that Plaintiff did not have a severe medically determinable impairment associated with headaches. (T at 974). Nevertheless, the ALJ stated that he considered the effect of Plaintiff's headaches by finding that he needed to avoid work at heights or around hazardous machinery. (T at 974-75).
The Court concludes that the ALJ's analysis was inadequate. “[T]he crucial factors in any determination must be set forth with sufficient specificity to enable [the reviewing court] to decide whether the determination is supported by substantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). Remand is required where the ALJ failed to provide an “adequate ‘roadmap' for his reasoning.” Almodovar v. Berryhill, No. 17-CV-8902 (BCM), 2019 U.S. Dist. LEXIS 48612, at *18 (S.D.N.Y. Mar. 22, 2019).
Here, the ALJ stated that “[a]s noted above,” he had concluded that Plaintiff “does not have a severe medically determinable impairment associated with headaches.” (T at 9740. Notably, this finding is not “noted above” in the decision and there is no explanation as to how the ALJ reached this conclusion.
In addition, the ALJ provided no indication that he considered Plaintiff's headaches in accordance with the guidance of SSR 19-4, which explains how the Commissioner determines whether a claimant has a medically determinable impairment of “primary headache disorder” and sets forth how such disorders are assessed as part of the sequential evaluation process.
Under that ruling, a “primary headache disorder” is an impairment that occurs independently of other medical conditions, unlike “secondary headaches,” which are not considered medically determinable impairments because they are “symptoms of another underlying medical condition.” See SSR 19-4p; Titles II & Xvi: Evaluating Cases Involving Primary Headache Disorders (S.S.A. Aug. 26, 2019).
In his written decision the ALJ found that Plaintiff's headaches were “not related to any head injury or traumatic brain injury,” which suggests he believed Plaintiff did have a primary headache disorder. (T at 974). Nonetheless, the ALJ did not reconcile this conclusion with his overall determination that Plaintiff's headaches were not a medically determinable impairment.
Further, the ALJ stated that he accounted for Plaintiff's headaches by finding that he needed to avoid work at heights or around hazardous machinery. (T at 974-75). The ALJ explained that these limitations were included "in order to minimize activities that might prove dangerous or trigger [Plaintiff's] symptoms.” (T at 974).
The problem with the ALJ's determination is that it does not account for the primary limitation arising from the condition, namely, debilitating pain and other symptoms that result in the inability to attend to work tasks on a consistent basis. (T at 56, 59, 281, 395, 516, 1048, 1678). See SSR 19-4P (“For example, symptoms of a primary headache disorder, such as photophobia, may cause a person to have difficulty sustaining attention and concentration.”).
The evidence from the consultative examiner and the treating physician demonstrate that Plaintiff experienced functional limitations from the headaches. For example, Dr. Ram Ravi, a consultative examiner, opined that Plaintiff would experience “[s]cheduled interruptions due to migraine headaches....” (T at 516, 926). Similarly, Dr. Deborah Feiner, a treating physician, reported that Plaintiff needed to lie down during the day due to headaches, and opined that he would be absent from work more than 4 days per month. (T at 938, 940).
Apparently recognizing that the ALJ did not provide a sufficient explanation for his reasoning, the Commissioner offers her own analysis of the medical evidence to support her argument that Plaintiff's headaches were not a “primary” disorder, but rather were symptoms of microvascular, psychological, or traumatic brain injury issues. (Docket No. 25, at p. 16-17).
The problem with the Commissioner's argument is that it contradicts the ALJ's own conclusion that Plaintiff's headaches were “not related to any head injury or traumatic brain injury..” (T at 974).
As the Second Circuit has recognized consistently post hoc rationalizations are generally not sufficient to remedy gaps in the ALJ's analysis. See Newbury v. Astrue, 321 F. Appx 16, 18 (2d Cir. 2009) (“A reviewing court ‘may not accept appellate counsel's post hoc rationalizations for agency action.'”)(quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)); see also Rosa v. Comm'r of Soc. Sec., No. 17 Civ. 3344, 2018 U.S. Dist. LEXIS 137494, at *44 (S.D.N.Y. Aug. 13, 2018)(“Post hoc justifications raised by the Commissioner in her memorandum of law do not cure defects in the ALJ's decision ...”).
While the court may sometimes overlook the absence of an adequate explanation if it is possible to “glean the rationale of the ALJ's decision,” Cichocki v. Astrue, 534 Fed.Appx. 71, 76 (2d Cir. 2013), this should be done sparingly and only where it is clear the ALJ considered all the relevant evidence and “the record contains robust support for the finding that [the claimant} is not disabled.” Barrere v. Saul, 857 Fed.Appx. 22, 24 (2d Cir. 2021). That is not the case here.
In the present case the Court concludes it cannot overlook the lack of an adequate explanation regarding this important issue. As discussed further below, even if the evidence arguably supports the conclusion that Plaintiff does not have a “primary headache disorder,” the ALJ's overall consideration of the evidence of limitation arising from Plaintiff's headaches is inadequate. A remand is therefore recommended for proper consideration of this evidence.
B. Listings Analysis
At step three of the sequential evaluation, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals an impairment listed in Appendix 1 of the Regulations (the “Listings”). See 20 C.F.R. §§ 404.1520(d), 416.920(d). If a claimant meets or equals a listed impairment, she is “conclusively presumed to be disabled and entitled to benefits.” Bowen v. City of New York, 476 U.S. 467, 471, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). “The claimant bears the burden of establishing that his or her impairments match a Listing or are equal in severity to a Listing." Henry v. Astrue, 32 F.Supp.3d 170, 182 (N.D.N.Y. 2012) (citing Naegele v. Barnhart, 433 F.Supp.2d 319, 324 (W.D.N.Y.2006)).
The ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equals one of the impairments set forth in the Listings. (T at 969).
Plaintiff argues that the ALJ erred because his impairments satisfy the “B” criteria for Listing 12.04 (Depressive, bipolar and related disorders). The “B” criteria are met when a claimant has extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: understanding, remembering, or applying information; interacting with others; maintaining concentration, persistence, or pace; and adapting or managing oneself.
The ALJ found that Plaintiff had mild limitation in understanding, remembering, or applying information; moderate limitation in interacting with others; moderate limitation with respect to maintaining concentration, persistence, or pace; and mild limitation in adapting or managing himself. (T at 970-71).
Regarding the domain of understanding, remembering, or applying information, the ALJ referenced Plaintiff's documented difficulties with memory, but noted that he experienced improvement with occupational therapy, cited records of mental status examinations showing no more than mild memory impairment, and referenced activities of daily living such as driving, shopping, and taking public transportation. (T at 970).
Plaintiff argues that the ALJ placed undue focus on memory, as opposed to other skills identified by the Commissioner in this domain, such as understanding, learning, and following directions; recognizing and correcting a mistake; and using reason and judgment to make work-related decisions.
Although the ALJ's analysis could have been more detailed, the Court finds no reversible error in this aspect of the ALJ's decision.
Memory is correlated with this domain of functioning. See, e.g., Charles B. v. Comm'r of Soc. Sec., No. 1:19-CV-0641 (CJS), 2021 WL 1169183, at *5 (W.D.N.Y. Mar. 29, 2021).
Moreover, the medical opinion evidence supports the ALJ's finding of no more than mild limitation in this domain. Dr. Michael Kushner, a consultative psychological examiner, assessed no evidence of limitation in Plaintiff's ability to understand, remember, and apply simple directions; no evidence of limitation regarding his capacity to use reason and judgment to make work-related decisions; and mild to moderate limitation with respect to understanding, remembering, and applying complex directions and instructions. (T at 510). Dr. Jody Popple, another consultative psychological examiner, made similar findings. (T at 906).
The ALJ also accounted for Plaintiff's impairment in this domain by limiting him to work involving unskilled work with no more than simple work-related decisions. (T at 971).
With respect to interacting with others, the ALJ found moderate limitation, noting that Plaintiff was cooperative during mental status examinations and could perform activities such as shopping and taking public transportation. (T at 970).
Plaintiff objects, arguing that this analysis does not address the core of the domain, which concerns the ability to accept workplace supervision and interact with co-workers and the public. Here, again, the ALJ's analysis is sufficient to survive scrutiny under the deferential standard applicable here.
Dr. Popple assessed mild to moderate limitation in Plaintiff's ability to interact adequately with supervisors, co-workers, and the public. (T at 906). Dr. Kusher reached the same conclusion. (T at 510). The ALJ accounted for Plaintiff's social impairments by limiting him to routine interpersonal contact with supervisors, occasional close interpersonal contact with coworkers, and brief superficial contact with the general public. (T at 971).
Concerning concentration, persistence, and pace, the ALJ found moderate limitation, citing mental status examinations showing no more than moderate concentration deficit and the ability to engage in activities such as preparing meals, driving, shopping, and using public transportation. (T at 970).
Plaintiff again argues that the ALJ's analysis fails to address his limitations with respect to work-related tasks demanding concentration, persistence, and pace.
This Court finds this argument unavailing. Dr. Kushner opined that Plaintiff could sustain concentration and perform at a consistent pace, with mild limitation. (T at 510). Dr. Popple made the same finding. (T at 906). The ALJ accounted for Plaintiff's impairment in this domain by limiting him to work that requires him to maintain attention and concentration only for routine, repetitive, rote work. (T at 971).
The ALJ assessed mild limitation in Plaintiff's ability to adapt and manage himself. (T at 971). Here, again, Plaintiff contends that the ALJ's analysis did not focus on the work-related factors identified by the Commissioner in this domain.
Dr. Kushner, however, assessed mild limitation in Plaintiff's ability to sustain an ordinary routine and regular attendance at work; no limitation as to maintaining personal hygiene and appropriate attire; no limitation as to being aware of normal hazards and taking appropriate precautions; and moderate limitation in regulating emotions, controlling behavior, and maintaining well-being. (T at 510). Dr. Popple made the same findings. (T at 906). Consistent with this evidence the ALJ limited Plaintiff to work involving only “routine changes in the workplace.” (T at 971).
Lastly, Plaintiff challenges the ALJ's conclusion that he did not meet the “paragraph C” criteria of the Listing. (T at 971). To satisfy paragraph (C), a claimant must show that his or her mental disorder is “serious and persistent;” that is, they have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: 1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of the mental disorder; and 2. Marginal adjustment, that is, minimal capacity to adapt to changes in their environment or to demands that are not already part of their daily life.
In the present case, although the ALJ's analysis might have been more detailed, the actual evidence (including the medical opinion evidence and Plaintiff's activities of daily living) is more than sufficient to sustain the ALJ's conclusion. See Otts v. Comm'r of Soc. Sec., 249 Fed.Appx. 887, 889 (2d Cir. 2007)(“While the ALJ might have been more specific in detailing the reasons for concluding that Otts's condition did not satisfy a listed impairment, the referenced medical evidence, together with the lack of compelling contradictory evidence from the plaintiff, permits us to affirm this part of the challenged judgment.”).
For these reasons the Court finds no reversible error in the ALJ's Step Three analysis.
C. Step Two Analysis
At step two of the sequential evaluation process, the ALJ must determine whether the claimant has a severe impairment that significantly limits his or her physical or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c). The following are examples of “basic work activities”: “walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling ... seeing, hearing, and speaking ... [u]nderstanding, carrying out, and remembering simple instructions ... [u]se of judgment ... [r]esponding appropriately to supervision, co workers and usual work situations.” Gibbs v. Astrue, No. 07-Civ-10563, 2008 WL 2627714, at *16 (S.D.N.Y. July 2, 2008); 20 C.F.R. § 404.1521(b)(1) (5).
Although the Second Circuit has held that this step is limited to “screen[ing] out de minimis claims,” Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir.1995), the “mere presence of a disease or impairment, or establishing that a person has been diagnosed or treated for a disease or impairment” is not, by itself, sufficient to render a condition “severe.” Coleman v. Shalala, 895 F.Supp. 50, 53 (S.D.N.Y.1995). Indeed, a “finding of ‘not severe' should be made if the medical evidence establishes only a ‘slight abnormality' which would have ‘no more than a minimal effect on an individual's ability to work.'” Rosario v. Apfel, No. 97-CV-5759, 1999 WL 294727 at *5 (E.D.N.Y. March 19,1999) (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n. 12 (1987)).
The ALJ found that Plaintiff's lumbar degenerative disc disease, sleep apnea, left shoulder degenerative joint disease, PTSD, and depression were severe impairments. (T at 968).
The ALJ recognized the Plaintiff had been diagnosed with calcaneal spurs, plantar fasciitis, patellofemoral pain syndrome of the right knee, and traumatic brain injury, but found that these impairments were non-severe. (T at 968-69). Plaintiff challenges this aspect of the ALJ's decision.
The record reflects, however, that the ALJ reasonably relied on evidence of modest clinical findings, routine and conservative treatment, and limited references to ongoing symptoms related to these conditions. (T at 968-969).
X-rays of Plaintiff's right knee were normal and he demonstrated full strength in his knee. (T at 532, 650). His foot pain was treated with shoe inserts and non-steroid anti-inflammatories. (T at 562). The ALJ recognized that Plaintiff suffered a head injury in 2009 or 2011 but noted that he engaged in substantial gainful activity thereafter. And the ALJ referenced that the Veterans' Administration found no evidence of traumatic brain injury when it assessed Plaintiff's service-connected disability claim. (T at 947, 969).
In addition, and in the alternative, any arguable error regarding these impairments was harmless. The ALJ found that Plaintiff had other severe impairments within the meaning of the Social Security Act and continued the sequential analysis. (T at 968). The ALJ also expressly stated that he considered all of Plaintiff's medically determinable impairments, including the non-severe impairments, wherein formulating the RFC determination. (T at 969).
Plaintiff has not pointed to any additional limitations related to these impairments (calcaneal spurs, plantar fasciitis, patellofemoral pain syndrome of the right knee, and traumatic brain injury) that the ALJ neglected to consider when assessing his RFC.
Accordingly, the Court finds no reversible error in the ALJ's step two analysis. See Reices-Colon v. Astrue, 523 Fed.Appx. 796, 798 (2d Cir. 2013)(“Because these conditions were considered during the subsequent steps, any error was harmless.”)(citing Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir.2010) (finding harmless error because ALJ's consideration of a doctor's report would not have changed the overall adverse determination)).
D. RFC
A claimant's “residual functional capacity” (“RFC”) is his or her “maximum remaining ability to do sustained work activities in an ordinary work setting on a continuing basis.” Melville, 198 F.3d at 52 (quoting SSR 96-8p). When assessing a claimant's RFC, an ALJ must consider medical opinions regarding the claimant's functioning and make a determination based on an assessment of the record as a whole. See 20 C.F.R. §§ 404.1527(d)(2), 416.9527(d)(2) (“Although we consider opinions from medical sources on issues such as ...your residual functional capacity...the final responsibility for deciding these issues is reserved to the Commissioner.”).
As discussed above, the ALJ determined that Plaintiff retained the RFC to perform light work, as defined in 20 CFR 404.1567 (b), with the following limitations: he can sit for 6 hours; stand/walk a total of 6 hours; lift/carry up to 20 pounds occasionally and 10 pounds frequently; perform occasional stooping and crouching; he must avoid working at unprotected heights or with hazardous moving machinery; he can work in a moderately noisy environment (office work); remember, understand, and carry out instructions necessary to perform Specific Vocational Preparation (SVP) level 1 or 2 unskilled jobs, up to reasoning level 3; make simple work-related decisions necessary for level 1 or 2 unskilled jobs; adapt to routine changes in the workplace; can maintain attention and concentration for routine, repetitive, rote work; respond appropriately to supervision; and can have routine interpersonal contact with supervisors, occasional close interpersonal contact with co-workers, and brief superficial contact with the general public. (T at 971).
Plaintiff challenges several aspects of the ALJ's RFC determination.
First, Plaintiff argues that the ALJ did not adequately account for the impact of his migraine headaches on his ability to sustain a schedule consistent with competitive, remunerative work.
For the following reasons the Court concludes that the ALJ erred in his analysis of the impact migraines headaches had on Plaintiff's ability to sustain a consistent work schedule thus requiring remand for proper consideration of the evidence regarding Plaintiff's headaches. Dr. Ravi opined that Plaintiff would experience “[s]cheduled interruptions due to migraine headaches....” (T at 516, 926). Dr. Feiner reported that Plaintiff needed to lie down during the day due to headaches, and opined that he would be absent from work more than 4 days per month. (T at 938, 940).
As discussed above, the ALJ's analysis of Plaintiff's headaches was conclusory and contradictory thus evidencing that the ALJ did not adequately address the evidence regarding Plaintiff's headaches when formulating the RFC. See Savastano v. Comm'r of Soc. Sec., No. 1:19-CV-05776-FB, 2021 WL 2895687, at *2 (E.D.N.Y. July 9, 2021)(finding remand required because “the ALJ does not appear to have incorporated the effects of Savastano's migraine headaches on her RFC”).
Plaintiff also argues that the ALJ did not adequately address his social limitations when formulating the RFC. The ALJ found that Plaintiff could respond appropriately to supervision; have routine interpersonal contact with supervisors, engage in occasional close interpersonal contact with co-workers, and tolerate brief superficial contact with the general public. (T at 971). In support of his argument that these limitations are insufficient, Plaintiff cites evidence of interpersonal problems. (T at 173, 1040-41, 1356, 1658, 1739).
While Plaintiff's citation to evidence of interpersonal problems may provide some support for Plaintiff's argument that the limitations in the RFC are insufficient the evidence at best is conflicting on this issue. It is the role of the Commissioner, and not this Court, to resolve conflicts in the evidence. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)(“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”). The ALJ may reach a determination that “does not perfectly correspond with any of the opinions of medical sources,” provided the ALJ's overall assessment is supported by substantial evidence and consistent with applicable law. See Trepanier v. Comm'r of SSA, 752 Fed.Appx. 75, 79 (2d Cir. 2018).
The record reflects that the ALJ reasonably relied on reports of Plaintiff's improved social functioning and appropriate interactions with medical providers. (T at 509, 904, 1342, 1346, 1350, 1353, 1357, 1361, 1366, 1370, 1375, 1387, 1392). Further, the ALJ appropriately relied upon both consultative psychological examiners, Dr. Popple and Dr. Kushner, each of whom assessed mild to moderate limitation in Plaintiff's ability to interact adequately with supervisors, co-workers, and the public. (T at 510, 906).
Moreover, the ALJ included a significant range of limitations in the RFC determination, including the limitation on social interaction referenced above, in addition to limiting Plaintiff to a range of unskilled work involving no more than simple work-related decisions, routine, repetitive, rote work, and no more than routine changes in the workplace. (T at 971). These limitations adequately accounted for the well-supported limitations in Plaintiff's social functioning. See Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010)(“None of the clinicians who examined [claimant] indicated that she had anything more than moderate limitations in her work-related functioning, and most reported less severe limitations. Although there was some conflicting medical evidence, the ALJ's determination that Petitioner could perform her previous unskilled work was well supported.”); Martinez v. Comm'r of Soc. Sec., 2016 U.S. Dist. LEXIS 140088, at *48 (S.D.N.Y. Oct. 5, 2016)(“[S]uch limitations in concentration, dealing with stress, and socialization have been found to be consistent with an RFC for unskilled work.”); Lee W. v. Comm'r of Soc. Sec., No. 1:20-CV-008-DB, 2021 U.S. Dist. LEXIS 78677, at *18 (W.D.N.Y. Apr. 23, 2021)(“As such, unskilled work, by definition, already accounts for limitations in mental functioning, including limitations interacting with others and learning new tasks.”).
E. Duty to Develop the Record
Social Security proceedings are non-adversarial and the ALJ is obliged “to investigate the facts and develop the arguments both for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 111, 147 L.Ed.2d 80, 120 S.Ct. 2080 (2000) (citation omitted). This obligation applies even if the claimant is represented by counsel. See, e.g., Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)(citing Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)). The ALJ's duty to develop the record has been described as a “bedrock principle of Social Security law.” Batista v. Barnhart, 326 F.Supp.2d 345, 353 (E.D.N.Y.2004)(citing Brown v. Apfel, 174 F.3d 59 (2d Cir.1999)).
Plaintiff argues that the ALJ did not adequately develop the record because he did not obtain new consultative examinations following the August 2020 remand from District Court. At the time of the ALJ's decision under review here (November of 2021), the consultative examinations were more than three years old. Plaintiff suggests that a stroke he suffered in January of 2020 resulted in additional impairment not reflected in the consultative examinations.
Notably, however, “[c]onsultative examinations do not have expiration dates,” Villalobo v. Saul, No. 19CIV11560CSJCM, 2021 WL 830034, at *19 (S.D.N.Y. Feb. 9, 2021), and an additional examination is not warranted without evidence that the claimant's condition deteriorated during the period at issue. See Rosa v. Comm'r of Soc. Sec., No. 17-CIV-3344-NSR-JCM, 2018 WL 5621778, at *10 (S.D.N.Y. Aug. 13, 2018).
The ALJ recognized Plaintiff's stroke in January of 2020, but discussed, in detail, the evidence demonstrating that Plaintiff's condition was not materially impacted by the event, including subsequent unremarkable physical examinations and neurological findings. (T at 974). Plaintiff does not reference any objective evidence that materially undermines the ALJ's conclusion as to this issue. The Court, therefore, has no trouble concluding that there was no reversible error in this aspect of the ALJ's decision.
F. Medical Opinion Evidence
“Regardless of its source, the ALJ must evaluate every medical opinion in determining whether a claimant is disabled under the [Social Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. §§ 404.1527(c), 416.927(d) (2020)) (internal quotation marks omitted).
In January of 2017, the Social Security Administration promulgated new regulations regarding the consideration of medical opinion evidence. The revised regulations apply to claims filed on or after March 27, 2017. See 20 C.F.R. § 404.1520c. Because Plaintiff applied for benefits after that date, the new regulations apply here.
The ALJ no longer gives “specific evidentiary weight to medical opinions,” but rather considers all medical opinions and “evaluate[s] their persuasiveness” based on supportability, consistency, relationship with the claimant, specialization, and other factors. See 20 C.F.R. § 404.1520c (a), (b)(2). The ALJ is required to “articulate how [he or she] considered the medical opinions” and state “how persuasive” he or she finds each opinion, with a specific explanation provided as to the consistency and supportability factors. See 20 C.F.R. § 404.1520c (b)(2).
Consistency is “the extent to which an opinion or finding is consistent with evidence from other medical sources and non-medical sources.” Dany Z. v. Saul, 531 F.Supp.3d 871, 882 (D. Vt. 2021)(citing 20 C.F.R. § 416.920c(c)(2)). The “more consistent a medical opinion” is with “evidence from other medical sources and nonmedical sources,” the “more persuasive the medical opinion” will be. See 20 C.F.R. § 404.1520c(c)(2).
Supportability is “the extent to which an opinion or finding is supported by relevant objective medical evidence and the medical source's supporting explanations.” Dany Z, 531 F.Supp.3d at 881. “The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520 (c)(1), 416.920c(c)(1).
For the following reasons this Court concludes there was error in the ALJ's assessment of certain aspects of the medical opinion evidence. Dr. Ravi, a consultative examiner, twice examined Plaintiff and opined that he would experience “[s]cheduled interruptions due to migraine headaches....” (T at 516, 926). Similarly, Dr. Feiner, a treating physician, reported that Plaintiff needed to lie down during the day due to headaches, and opined that he would be absent from work more than 4 days per month. (T at 938, 940).
The ALJ found Dr. Ravi's opinion “substantially persuasive,” but found the assessment of limitation related to Plaintiff's headaches “less persuasive” because it was “vague, lacking specificity, and ... based in large part on [Plaintiff's] subjective reports.” (T at 977).
Similarly, the ALJ concluded that Dr. Feiner's opinion that Plaintiff would be absent from work more than 4 days per month not persuasive, finding this conclusion “not supported by the record.” (T at 979).
Significantly, the ALJ's decision to discount Dr. Ravi and Dr. Feiner's opinions was impacted by his overall error in addressing the evidence regarding Plaintiff's headaches, as explained above. Further, the ALJ failed to elucidate to what extent Dr. Ravi's opinion was “vague” or “lacking specificity.” Indeed, interruptions in one's schedule are precisely what would be expected for a person suffering from debilitating migraines.
Moreover, to the extent the ALJ discounted Dr. Ravi's assessment because it was based on Plaintiff's subjective reports, “[n]either the SSA nor the courts in this Circuit have required that an impairment, including migraines, be proven through objective clinical findings.” Mnich v. Colvin, No. 514CV740DNHCFH, 2015 WL 7769236, at *21 (N.D.N.Y. Sept. 8, 2015), report and recommendation adopted, No. 5:14-CV-740, 2015 WL 7776924 (N.D.N.Y. Dec. 2, 2015).
Indeed, “there exists no objective clinical test which can corroborate the existence of migraines.” Groff v. Commissioner of Soc. Sec., 2008 WL 4104689, at *6-*8 (N.D.N.Y. Sept. 3, 2008) (finding that ALJ “evince[d] an erroneous understanding of the nature of migraine headache and the treatment of such condition” and recognizing the “potential elusiveness of this impairment.”).
Lastly, the ALJ erred by failing to consider the extent to which the opinions of Dr. Ravi and Dr. Feiner were consistent with each other. See Shawn H. v. Comm'r of Soc. Sec., No. 2:19-CV-113, 2020 WL 3969879, at *7 (D. Vt. July 14, 2020)(“Moreover, the ALJ should have considered that the opinions of Stephens and Dr. Lussier are consistent with each other.”).
For these reasons a remand is warranted for reconsideration of the evidence concerning Plaintiff's headaches, including the medical opinion evidence from Dr. Ravi and Dr. Feiner.
G. Credibility
A claimant's subjective complaints of pain and limitation are “an important element in the adjudication of [social security] claims, and must be thoroughly considered in calculating the [RFC] of a claimant.” Meadors v. Astrue, 370 Fed.Appx. 179, 183 (2d Cir. 2010) (citation omitted); see also 20 C.F.R. § 416.929. However, “the ALJ is ... not required to accept the claimant's subjective complaints without question.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citations omitted). Rather, the ALJ “may exercise discretion in weighing the credibility of the claimant's testimony in light of other evidence in the record.” Id. (citation omitted); see also Henningsen v. Comm'r of Soc. Sec., 111 F.Supp.3d 250, 267 (E.D.N.Y. 2015) (“The ALJ retains discretion to assess the credibility of a claimant's testimony regarding disabling pain and ‘to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant.'” (quoting Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979))).
The ALJ follows a two-step process in evaluating a claimant's credibility.
First, “the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged.” Genier, 606 F.3d at 49 (citation omitted).
Second, “the ALJ must consider the extent to which the claimant's symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence of record.” Id. (citation, alterations, and quotation marks omitted). The ALJ must “consider all of the available medical evidence, including a claimant's statements, treating physician's reports, and other medical professional reports.” Fontanarosa v. Colvin, No. 13-CV-3285, 2014 U.S. Dist. LEXIS 121156, at *36 (E.D.N.Y. Aug. 28, 2014) (citing Whipple v. Astrue, 479 Fed.Appx. 367, 370-71 (2d Cir. 2012)).
If the claimant's allegations of pain and limitation are “not substantiated by the objective medical evidence, the ALJ must engage in a credibility inquiry.” Meadors, 370 Fed.Appx. at 184. This inquiry involves seven (7) factors: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medications taken to alleviate the pain; (5) any treatment, other than medication, that the claimant has received; (6) any other measures that the claimant employs to relieve the pain; and (7) other factors concerning the claimant's functional limitations and restrictions as a result of the pain. See 20 C.F.R. § 404.1529(c)(3)(i)-(vii)).
If the ALJ discounts the claimant's credibility, the ALJ “must explain the decision to reject a claimant's testimony “with sufficient specificity to enable the [reviewing] Court to decide whether there are legitimate reasons for the ALJ's disbelief and whether [the ALJ's] decision is supported by substantial evidence.” Calzada v. Astrue, 753 F.Supp.2d 250, 280 (S.D.N.Y. 2010)(alterations in original, citations omitted).
The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but concluded that Plaintiff's statements concerned in the intensity, persistence, and limiting effects of those symptoms were not entirely credible. (T at 972).
The ALJ's overall assessment of Plaintiff's credibility is supported by substantial evidence, including the treatment record and medical opinion evidence. Nonetheless, the ALJ's decision to discount Plaintiff's testimony regarding the debilitating impact of his headaches (T at 56, 1048) should be revisited on remand. This testimony is supported by the assessments of Dr. Ravi and Dr. Feiner, which the ALJ did not properly address (as discussed above). A remand for reconsideration of Plaintiff's statements regarding his migraines is, therefore, recommended.
H. Step Five Hypothetical
At the fifth step of the evaluation, the burden shifts to the Commissioner to show “a significant number of jobs (in one or more occupations) having requirements which [the claimant is] able to meet with [his or her] physical or mental abilities and vocational qualifications.” 20 C.F.R. § 404.1566(b). To meet this burden, the Commissioner may elicit testimony from a vocational expert to prove there are jobs in the national economy that the claimant can perform. Id. § 404.1566(e).
“In questioning a vocational expert, a hypothetical must precisely and comprehensively set out every physical and mental impairment of the Plaintiff that the ALJ accepts as true and significant.” Riley v. Astrue, No. 11-CV-6512T, 2012 U.S. Dist. LEXIS 159113, at *20 (W.D.N.Y. Nov. 6, 2012). “If hypothetical questions do not include all of a claimant's impairments, limitations and restrictions, or are otherwise inadequate, a vocational expert's response cannot constitute substantial evidence to support a conclusion that the claimant is not disabled.” Abdulsalam v. Comm'r of Soc. Sec., No. 5:12-cv-1631 (MAD), 2014 U.S. Dist. LEXIS 13442, at *30 (N.D.N.Y. Feb. 4, 2014).
In the present case, because the Court concludes that the ALJ's RFC assessment regarding Plaintiff's headaches was flawed, the vocational expert's hypothetical and step five findings will necessarily need to be revisited on remand.
I. Remand
“Sentence four of Section 405 (g) provides district courts with the authority to affirm, reverse, or modify a decision of the Commissioner ‘with or without remanding the case for a rehearing.'” Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (quoting 42 U.S.C. § 405 (g)). Remand for further administrative proceedings is the appropriate remedy “[w]here there are gaps in the administrative record or the ALJ has applied an improper legal standard.” Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999); see also Rhone v. Colvin, No. 13-CV-5766 (CM)(RLE), 2014 U.S. Dist. LEXIS 180514, at *28 (S.D.N.Y. Nov. 6, 2014).
Given the deficiencies in the ALJ's analysis related to Plaintiff's headaches, it is recommended that this case should be remanded for further proceedings.
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 18) should be GRANTED; the Commissioner's Motion for Judgment on the Pleadings (Docket No. 24) should be DENIED; and this case should be remanded for further proceedings under sentence four of section 405 (g) of the Social Security Act.
PROCEDURE FOR FILING 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 have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).