Opinion
20-cv-07420 (JMF) SDA)
06-10-2022
Jose Tavarez Guzman, Plaintiff, v. Commissioner of Social Security, Defendant.
TO THE HONORABLE JESSE M. FURMAN, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, United States Magistrate Judge.
Plaintiff Jose Tavarez Guzman (“Tavarez” or “Plaintiff”) brings this action pursuant to Section 205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the “Commissioner”) that denied his application for Disability Insurance Benefits (“DIB”). (Compl., ECF No. 1.) Presently before the Court are the parties' cross-motions, pursuant to Federal Rule of Civil Procedure 12(c), for judgment on the pleadings. (Pl.'s Not. of Mot., ECF No. 21; Comm'r Not. of Mot., ECF No. 25.)
For the reasons set forth below, I respectfully recommend that Plaintiff's motion for judgment on the pleadings be GRANTED and that the Commissioner's cross-motion be DENIED.
BACKGROUND
I. Procedural Background
Tavarez filed an application for DIB on May 15, 2017, with an alleged disability onset date of May 9, 2016. (Administrative R., ECF No. 17 (“R.”), 35, 220.) The Social Security Administration (“SSA”) denied his application on June 27, 2017, and Tavarez filed a written request for a hearing before an Administrative Law Judge (“ALJ”) on August 3, 2017. (R. 77-82, 85-86.) A video hearing was held on June 28, 2019 before ALJ Paul R. Armstrong. (R. 32.) Tavarez was represented at the hearing by attorney David Levine. (Id.) In a decision dated July 9, 2019 ALJ Armstrong found Tavarez not disabled. (R. 15-24.) Tavarez requested review of the ALJ decision from the Appeals Council. (R. 216-19.) His request was denied on July 14, 2020, making ALJ Armstrong's decision the Commissioner's final decision. (R. 1-8, 15-24.) This action followed.
II. Non-Medical Evidence
Born on May 1, 1980, Tavarez was thirty-six years old on the alleged disability onset date. (See R. 236, 264.) Tavarez has at least a high school education and is able to communicate in English. (R. 46-47.) He also graduated from a police academy outside of the United States and took a workplace safety training course with the Occupational Safety and Health Administration. (Id.) From approximately 2010 through 2013, Tavarez worked as a produce worker/salad maker at a supermarket/restaurant. (R. 241.) From approximately 2011 through May 9, 2016, Tavarez worked as a construction worker. (Id.)
III. Medical Evidence Before the ALJ
The medical evidence reflects that, on May 9, 2016, the alleged disability onset date, Tavarez injured his back while working in construction. (R. 829.) A co-worker dropped a 4x4 piece of wood on his back, causing him to fall 15 feet. (Id.) Tavarez initially was evaluated at the Union Community Health Center in its urgent care facility. (R. 324.)
On May 13, 2016, Tavarez was seen by Dr. Ornela Rehova at Physical Medicine and Rehabilitation of New York in Bronx, New York. (R. 829.) Tavarez complained of low back pain radiating to his bilateral lower extremities, right thumb and hand pain, headaches and dizziness. (Id.) On examination, with respect to Tavarez's lumbar spine, Dr. Rehova indicated that Tavarez had tenderness, painful range of motion and limited flexion. (Id.) Dr. Rehova found myofascial derangement of the lumbar spine with possible disc involvement. (R. 830.) Dr. Rehova ordered physical therapy and an x-ray of the lumbar spine. (Id.) Dr. Rehova noted that Tavarez was partially disabled and unable to carry out his job-related activities in construction. (Id.)
On May 16, 2016, an x-ray of Tavarez's lumbar spine was done on referral from Dr. Rehova. (R. 322.) The results showed no compression fracture, but reduced disc space height at ¶ 5-S1. (Id.) Tavarez next saw Dr. Rehova on June 3, 2016. (R. 826.) Tavarez reported ongoing significant pain in his lower back and that he had difficulty with bending and twisting movement activity. (Id.) On examination, with respect to Tavarez's lumbar spine, Dr. Rehova again indicated that Tavarez had tenderness, painful range of motion and limited flexion. (R. 827.) Dr. Rehova again found myofascial derangement of the lumbar spine with possible disc involvement. (Id.) Dr. Rehova ordered continuing physical therapy and recommended an MRI of the lumbar spine. (Id.) Dr. Rehova again noted that Tavarez was partially disabled and unable to carry out his job-related activities in construction. (Id.)
On June 18, 2016, an MRI of Tavarez's lumbar spine was done on referral from Dr. Rehova. (R. 778.) It showed left-sided foraminal disc herniation at ¶ 4-L5 with impingement upon the exiting L4 root. (Id.)
The July 1, 2016 examination by Dr. Rehova made findings similar to those at the prior two examinations and advised that Tavarez undergo electro diagnostic studies of his lower extremities. (R. 823-25.) Tavarez next saw Dr. Rehova on July 29, 2016 and reported worsening symptoms in the neck and low back; right thumb and hand pain; headaches and dizziness; and depression and anxiety due to the limitations and financial burdens caused by his symptoms, as he continued to be out of work. (R. 820.) On examination, with respect to Tavarez's cervical and lumbar spines, Dr. Rehova indicated that Tavarez had tenderness, painful range of motion and limited flexion. (R. 821.) Dr. Rehova found myofascial derangement of the lumbar spine with disc herniation at ¶ 4-5 with worsening myofascial cervical spine pain. (Id.) Dr. Rehova ordered, inter alia, continuing physical therapy, follow up with a psychologist for anxiety and depression, follow up with a spine specialist and follow up with pain management. (Id.) Dr. Rehova noted that Tavarez was partially disabled and unable to carry out his job-related activities in construction. (R. 822.)
On August 5, 2016, an MRI of Tavarez's cervical spine was done on referral from Dr. Rehova. (R. 779.) It showed multi-level bulging discs and a herniation at ¶ 7-T1. (Id.)
On August 18, 2016, Dr. Bradley Weiner conducted an independent medical examination of Tavarez. (R. 324-28.) Dr. Weiner opined that Tavarez was “capable of sedentary to light work activities with the avoidance of repetitive stooping, squatting, kneeling and bending, as well as lifting, carrying, pushing or pulling anything in excess of 20 pounds.” (R. 327.)
On August 26, 2016, Tavarez was examined by Dr. Rehova. (R. 817.) Tavarez reported low back and neck pain; right thumb and hand pain; headaches and dizziness; and depression and anxiety. (R. 817.) The results of examination of Tavarez's cervical and lumbar spines were consistent with prior visits, as were Dr. Rehova's findings and treatment plan. (See R. 817-19.)
On September 22, 2016, Tavarez was seen by Dr. Dina Nelson, who was a colleague of Dr. Rehova at Physical Medicine and Rehabilitation of New York. (R. 814.) Tavarez reported neck and low back pain; right thumb pain; headaches and dizziness; memory disturbance; depression and anxiety; irritability; and poor sleep. (Id.) He was using a cane to ambulate to support his back and complained of pain being 10 out of 10. (Id.) On examination of Tavarez's cervical and lumbar spines, Dr. Nelson found tenderness and limited range of motion. (R. 815.) Dr. Nelson found cervical myofascial derangement; cervical disc bulges and herniation; lumbar disc herniation; right thumb sprain; and post-concussion syndrome with headaches, dizziness, sleep disturbance, mood disturbance and memory disturbance. (Id.) Dr. Nelson ordered that Tavarez continue physical therapy; follow up with a neurologist for headaches; follow up with a psychologist for anxiety and depression; evaluation by a neuropsychologist for cognitive issues; follow up with a spine specialist for surgical intervention; and follow up with pain management. (R. 815-16.) Dr. Nelson stated that Tavarez “remain[ed] at this time with total disability, unable to work in construction at this time.” (R. 816.)
On September 29, 2016, Dr. Richard Lechtenberg conducted an independent neurologic examination of Tavarez. (R. 329-33.) Dr. Lechtenberg opined that Plaintiff “had no consistent, objective, clinical, neurological deficits on my examination,” that “[t]here were obvious elaborations of deficits, since he insisted that he could not do a variety of activities on instruction that he performed without any apparent discomfort as part of incidental movement,” and that “[f]rom a neurologic standpoint he is not disabled and can work at any job for which he is qualified” and “can return to employment without restriction.” (R. 332-33.)
On October 25, 2016, Tavarez was given a clinical psychological evaluation by Dr. Juraci Da Silva. (R. 372-76.) Tavarez had reactive depression, anxiety and sleeping difficulty. (R. 372.) Dr. Da Silva stated that his “clinical impression support[ed] underlying processes of clinical depression and anxiety causally related to the work accident.” (R. 375.) Dr. Da Silva found Tavarez to be “85% disable[d] at this time.” (Id.) Dr. Da Silva recommended that Tavarez attend psychotherapy. (R. 376.)
In 2016 and 2017, Tavarez saw Dr. Da Silva and her colleagues. (R. 377-94, 400-10.) Tavarez had “some improvement dealing with depression but levels of anxiety continue[d] to be high,” and mental status exams showed findings that included pressured speech, anxious, angry, or depressed mood, and fair memory and impulse control. (R. 379-80, 384, 386, 388, 408, 539.) He was treated with psychotherapy and 10 mg of escitalopram. (R. 539.)
On November 4, 2016, Tavarez returned to see Dr. Rehova. (R. 811.) He reported low back and neck pain; right thumb and hand pain; headaches and dizziness; and depression and anxiety. (Id.) On examination of Tavarez's cervical and lumbar spines, Dr. Rehova found tenderness, painful range of motion and limited flexion. (R. 812.) Dr. Rehova found myofascial derangement of the lumbar spine with disc herniation and L4-5, with worsening myofascial cervical spine pain; right thumb sprain; synovitis; post-traumatic headaches and depression; disc bulges at ¶ 3-4, C4-5 and C5-6; and herniation at ¶ 7-T1. (Id.) Dr. Rehova ordered continuing physical therapy, follow up with a neurologist for headaches; follow up with a psychologist for anxiety and depression; and follow up with a spine specialist for surgery. (Id.) Dr. Rehova noted that Tavarez was partially disabled and unable to carry out his job-related activities in construction. (R. 813.) He also noted that Tavarez might consider vocational rehabilitation since it was unlikely that he would return to work in construction. (Id.)
On November 16, 2016, Dr. Victoria Londin conducted an independent psychological examination of Tavarez. (R. 342-45.) Dr. Londin assessed him with adjustment disorder with anxiety and depression and found that he was “not fully capable of meeting all of the usual demands of daily living as well as all of the demands and responsibilities of employment.” (R. 345.) On December 2, 2016, Tavarez underwent neurobehavioral testing at the Center for Cognition and Communication. (R. 346-49.) He was assessed with a head injury, post-concussion syndrome and cognitive deficits, and he was referred to cognitive therapy. (R. 348-49.)
On April 25, 2017, Tavarez underwent a lumbar laminectomy surgery at New York Presbyterian Medical Center to treat left paraforaminal herniation of the L4-L5 segment, with severe lumbosacral radiculopathy. (R. 318-20.) The surgery was performed by Dr. Andrew A. Merola. (R. 320.)
On May 8, 2017, Tavarez was examined by Dr. Albert Villafuerte, who was another physician working at Physical Medicine and Rehabilitation of New York. (R. 807.) Tavarez complained of low back and neck pain; right thumb and hand pain; headaches; and anxiety and depression. (Id.) On examination of the cervical spine, Dr. Villafuerte found tenderness in the bilateral cervical paraspinal muscles and limited flexion. (R. 808.) On examination of the lumbar spine, he found tenderness in the bilateral lumbar paraspinal muscles, but was unable to assess lumbar range of motion, noting a midline surgical scar. (Id.) Dr. Villafuerte found lumbar derangement; lumbar disc herniation; cervical derangement; cervical disc bulges and herniation; right thumb injury; headaches; and anxiety. (R. 809.) He ordered continuing physical therapy; follow up with a spine and pain specialist for neck and back pain; follow up with a neurologist for headaches and dizziness; follow up with a psychologist for anxiety and depression; and for Tavarez to refrain from strenuous activities. (Id.) Dr. Villafuerte stated that Tavarez was “unable to work.” (Id.)
On June 19, 2017, Tavarez again saw Dr. Villafuerte. (R. 804.) He complained of low back and neck pain; headaches; and anxiety and depression. (Id.) Dr. Villafuerte noted that electrodiagnostic studies performed on May 24, 2017 revealed evidence of right C8 radiculopathy and bilateral median sensory entrapment neuropathies consistent with bilateral sensory carpal tunnel syndrome. (R. 805.) On examination of the cervical and lumbar spines, Dr. Villafuerte found tenderness in the bilateral paraspinal muscles and limited flexion. (Id.) A straight leg raises elicited pain in the bilateral lumbar area. (Id.) Dr. Villafuerte found lumbar derangement; lumbar disc herniation; cervical derangement; cervical disc bulges and herniation; headaches; and anxiety. (Id.) He ordered continuing physical therapy; follow up with a spine specialist for neck and back pain; follow up with a pain management specialist; follow up with a neurologist for headaches and dizziness; follow up with a psychologist for anxiety and depression; and for Tavarez to refrain from strenuous activities. (Id.) Dr. Villafuerte stated that Tavarez was “unable to work.” (R. 806.)
On June 20, 2017, Tavarez was seen by Dr. John Fkiaras, a consultative examiner. (R. 41215.) Tavarez appeared in no acute distress; had antalgic gait, but used no assistive device; was unable to walk on heels and toes; could squat only 10% of full; and was able to get on an off the exam table with difficulty. (R. 413.) He had limited cervical and lumbar range of motion; pain to palpation of the cervical and lumbar spine; positive straight leg raising test, but no spasm or trigger points; 5/5 muscle strength in the lower extremities; no muscle atrophy; no sensory abnormality; and normal reflexes. (R. 414.) Dr. Fkiaras opined that Tavarez was restricted from any lifting; carrying; pushing; pulling; squatting; kneeling; and crouching and bending, and had moderate limitations walking long distances; standing extended periods; sitting extended periods; and reaching with the right upper extremity. (R. 415.)
On July 3, 2017, Dr. Peter Kwan conducted an updated psychological evaluation of Tavarez, who reported that he experienced significant depressive symptoms, including diminished pleasure in activities, interpersonal relationships and hopelessness. (R. 536.) Dr. Kwan found that Tavarez had good interpersonal relatedness; coherent, but soft, speech; anxious and sometimes depressed mood; appropriate, but mostly constricted, affect; logical thought processes; good judgment and insight; slightly affected memory; improved impulse control; and slightly improved trauma-related and depressive symptoms. (R. 537.) Tavarez's social/occupational/vocational functioning were all poor due to his mental and physical symptoms. (Id.) Depression and anxiety inventories indicated that Tavarez consciously admitted feeling depressed, but his score had improved since his prior evaluation. (Id.)
Tavarez saw Dr. Villafuerte on August 4, 2017, September 11, 2017, October 23, 2017, December 4, 2017, January 15, 2018, February 26, 2018 and April 9, 2018. (R. 780, 783, 786, 792, 795, 798, 801.) The results of the examination were consistent with those from Tavarez's visit on June 19, 2017. (Compare R. 780-82, R. 783-85, R. 786-88, R. 792-94, R. 795-97, 798-800 and R. 801-03 with R. 804-06.) At each of these visits, Dr. Villafuerte noted that Tavarez had not been able to return to work and would need spine specialist clearance. (R. 782, 785, 788, 794, 797, 800, 803.)
On August 8, 2017, an MRI of Tavarez's cervical spine was done on referral from Dr. Merola. (R. 776-77.) It showed bulging discs with thecal sac impingement at C/3-C4 through C/5-6 and a herniation at ¶ 7-T1. (R. 777.)
On December 11, 2017, Tavarez saw Dr. Merola, his surgeon. (R. 760.) Dr. Merola noted that Tavarez's physical examination findings with respect to his lumbar spine were stable, but he showed findings indicative of cervical radiculopathy with myelopathy, including positive Spurling's maneuver, positive Hoffman's sign, grip weakness, decreased sensation in the C6-C8 dermatomes. (R. 760-69.) Dr. Merola further noted that EMG testing showed electrical instability at the C8 nerve roots, and a cervical MRI showed multi-level herniations. (R. 760, 773, 776-77.) Dr. Merola recommended a cervical discectomy and spinal fusion. (R. 760.)
On January 14, 2019, Dr. Merola completed an impairment questionnaire stating that Tavarez had been diagnosed with radiculopathy, with symptoms of pain and reduced function. (R. 547.) He opined that Tavarez constantly would experience pain severe enough to interfere with attention and concentration; was severely limited in his ability to deal with work stress; could sit for 15 minutes continuously and two hours cumulatively; could stand or walk for 15 minutes continuously and two hours cumulatively; could lift and carry no more than five pounds; and was unable to balance, stoop, or move his neck. (R. 548-52.)
On January 15, 2019, Tavarez's psychologist, Dr. Da Silva, also completed an impairment questionnaire. (R. 756-59.) Dr. Da Silva opined that Tavarez had trauma-induced depression and anxiety disorder due to a medical condition, with signs and symptoms of poor memory, appetite disturbance with weight change, sleep disturbance, personality change, mood disturbance, emotional lability, delusions or hallucinations, recurrent panic attacks, anhedonia, paranoia, feelings of guilt or worthlessness, difficulty thinking or concentrating, oddities of thought, social withdrawal, decreased energy, intrusive recollections of a traumatic experience, persistent irrational fears, generalized persistent anxiety, and hostility and irritability. (R. 756.) Dr. Da Silva opined that Tavarez would be absent from work more than three times per month and had marked or extreme loss in his ability to perform all the functional activities identified in the questionnaire, except that he had no or mild loss in his ability to use public transportation and moderate loss in his ability to set realistic goals or make plans. (R. 757-59.)
IV. The Administrative Hearing
Tavarez appeared with counsel for an administrative hearing before ALJ Armstrong on May 21, 2019. (R. 30-60.) Tavarez testified that he resided with his wife and five-year-old son in a fifth-floor apartment with no elevator. (R. 41.) During the day, he took his son to and from school two blocks away and stayed at home watching television. (R. 42-43.) He could shop online using his telephone. (R. 45.) Tavarez testified that he stopped working in 2016 after a workplace accident that caused radiating neck and back pain due to bulging and herniated discs. (R. 50-51.) He stated that he could lift five to ten pounds on the advice of this doctor, that he could sit for about two hours during an eight-hour workday, that he experienced pain in his back when walking his son two blocks to school, and that he could not turn his head without a lot of pain. (R. 45-46, 48-50.) He also testified that after his accident, he developed anxiety and depression, which caused pain, loneliness, distrust of people and paranoia, but his therapy and medication helped him. (R. 46-48.) He also testified that he had difficulties with memory and would forget things. (R. 50-51.)
A vocational expert (“VE”), Beth Leitman, also testified. (R. 53-59.) The ALJ asked the VE in a short-hand fashion whether jobs exist in the national economy for an individual with Tavarez's age, education, work experience and residual functional capacity (“RFC”). (See R. 53.) The VE testified that, given all of these factors the individual would be able to perform the requirements of representative occupations such as addresser (DOT 209.587-010, SVP 2 sedentary unskilled work, 5,500 jobs nationally), call out operator (DOT 237.367-014, SVP 2 sedentary unskilled work, 14,000 jobs nationally) and charge account clerk (DOT 205.367-014, SVP 2 sedentary unskilled work, 6,000 jobs nationally). (R. 54-55.)
On cross-examination by Tavarez's attorney, the VE initially testified that, if Tavarez was unable to move his head from side to side, he would not be able to do sedentary jobs, but he still would be able to do the advertising material distributor and sandwich board carrier jobs. (R. 57.) Then, when challenged by the ALJ on her answer, the VE testified that she was “limiting it too much,” and that, even if Tavarez was unable to move his head from side to side, he would still be able to perform sedentary work. (R. 57-58.) Tavarez's attorney then asked about an individual who occasionally could move his head up and down but never side to side, to which the VE responded that she did “not believe he would be able to do the work provided.” (R. 58.)
Also on cross-examination, the VE was asked what an employer's tolerance would be for employee absences. (R. 59.) The VE testified that “[i]n her education and experience, one absence per month is tolerated.” (Id.)
V. The ALJ Decision
On July 9, 2019, the ALJ issued a decision finding that Tavarez had failed to show that he was disabled during the relevant time period between May 2016 and July 2019. (R. 15-24.) Applying the Commissioner's five-step sequential evaluation, see infra Legal Standards Section II, the ALJ at Step 1, the ALJ found that Tavarez had not engaged in substantial gainful activity since his alleged onset date in May 2016. (R. 17.) At Step 2, the ALJ found that Tavarez had severe impairments of degenerative disc disease, cognitive disorder, depression and anxiety. (Id.) At Step 3, the ALJ found that Tavarez's impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, including Listings 1.04 for disorders of the spine. (Id.) The ALJ also found that Tavarez's mental impairments did not meet 12.02 for neurocognitive disorders, 12.04 for depression and 12.06 for anxiety disorders because he had only mild to moderate limitations in the four “paragraph B” criteria. (R. 17-18.)
Prior to proceeding to Step 4, the ALJ found that Tavarez retained the RFC to perform sedentary work, as defined in 20 C.F.R. § 404.1567(b), where Tavarez could lift or carry 10 pounds occasionally and less than 10 pounds frequently, stand or walk for 2 out of 8 hours during the workday, and sit for 6 out of 8 hours during the workday. (R. 19.) The ALJ found that Tavarez further was limited to performing simple, unskilled work with specific vocational preparation (“SVP”) levels of 1 or 2. (Id.) At Step 4, the ALJ found that Plaintiff was unable to perform his past relevant work as a construction worker and “party goods maker.” (R. 22-23.) At Step 5, based on the Medical-Vocational Guidelines and the testimony of the VE, the ALJ found that Tavarez could perform the requirements of three representative jobs at the unskilled, sedentary level, including addresser (DOT 209.587-010), call out operator (DOT 237.367-014) and charge account clerk (DOT 205.367-014). (R. 23-24.) The ALJ therefore concluded that Tavarez had not shown a period of disability that lasted at least 12 months and that began during the relevant time period between May 2016 and October 2019. (R. 24.)
The ALJ's reference to a “party goods maker” is in error. Plaintiff worked from approximately 2010 through 2013, as a produce worker/salad maker at a supermarket/restaurant. (R. 241.) The VE classified this job as a “pantry goods maker.” (R. 53.)
LEGAL STANDARDS
I. Standard Of Review
A motion for judgment on the pleadings should be granted if it is clear from the pleadings that “the moving party is entitled to judgment as a matter of law.” Burns Int'l Sec. Servs., Inc. v. Int'l Union, United Plant Guard Workers of Am., Local 537, 47 F.3d 14, 16 (2d Cir. 1995) (citing Fed.R.Civ.P. 12(c)). In reviewing a decision of the Commissioner, a court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
“The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence.” Ulloa v. Colvin, No. 13-CV-04518 (ER), 2015 WL 110079, at *6 (S.D.N.Y. Jan. 7, 2015) (citing Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)). “Even if the Commissioner's decision is supported by substantial evidence, legal error alone can be enough to overturn the ALJ's decision[.]” Id.; accord Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). A court must set aside legally erroneous agency action unless “application of the correct legal principles to the record could lead only to the same conclusion,” rendering the errors harmless. Garcia v. Berryhill, No. 17-CV-10064 (BCM), 2018 WL 5961423, at *11 (S.D.N.Y. Nov. 14, 2018) (quoting Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)).
Absent legal error, the ALJ's disability determination may be set aside only if it is not supported by substantial evidence. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (vacating and remanding ALJ's decision). “Substantial evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). However, “[t]he substantial evidence standard is a very deferential standard of review-even more so than the clearly erroneous standard, and the Commissioner's findings of fact must be upheld unless a reasonable factfinder would have to conclude otherwise.” Banyai v. Berryhill, 767 Fed.Appx. 176, 177 (2d Cir. 2019), as amended (Apr. 30, 2019) (summary order) (emphasis in original) (citation and internal quotation marks omitted). If the findings of the Commissioner as to any fact are supported by substantial evidence, those findings are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995).
II. Determination Of Disability
A person is considered disabled for benefits purposes when he is 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 12 months ....” 42 U.S.C. § 423(d)(1)(A).
An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § 423(d)(2)(A).
In determining whether an individual is disabled, the Commissioner must consider: “(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam) (citations omitted).
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims:
(i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled.
(ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment
that meets the duration requirement . . . [continuous period of 12 months], or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled.
(iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in appendix 1 [(the “Listings”)] . . . and meets the duration requirement, we will find that you are disabled.
(iv) At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled.
(v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled.20 C.F.R. § 404.1520(a)(4) (internal citations omitted).
If it is determined that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not progress to the next step. 20 C.F.R. § 404.1520(a)(4).
After the first three steps (assuming that the claimant's impairments do not meet or medically equal any of the Listings), the Commissioner is required to assess the claimant's RFC “based on all the relevant medical and other evidence in [the claimant's] case record.” 20 C.F.R. § 404.1520(e). A claimant's RFC is “the most [the claimant] can still do despite [the claimant's] limitations.” 20 C.F.R. § 404.1545(a)(1).
The claimant bears the burden of proof as to the first four steps. See Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). It is only after the claimant proves that he cannot return to work that the burden shifts to the Commissioner to show, at step five, that other work exists in the national and local economies that the claimant can perform, given the claimant's RFC, age, education, and past relevant work experience. See id. at 51-52.
III. Regulations Regarding Consideration Of Medical Opinions And Prior Findings For Applications Filed On Or After March 27, 2017
Under the regulations applicable to Plaintiff's claim, the ALJ considers five factors in evaluating the persuasiveness of medical opinions: (1) supportability; (2) consistency; (3) relationship of the source with the claimant, including length of the treatment relationship, frequency of examination, purpose of the treatment relationship, extent of the treatment relationship and whether the relationship is an examining relationship; (4) the medical source's specialization; and (5) other factors, including but not limited to “evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of [the SSA] disability program's policies and evidentiary requirements.” 20 CFR § 404.1520c(c). Using these factors, the most important of which are supportability and consistency, the ALJ must articulate “how persuasive [he] find[s] all of the medical opinions and all of the prior administrative medical findings in [the claimant's] case record.” Id. § 404.1520c(b).
With respect to the supportability factor, the regulations provide that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” Id. § 404.1520c(c)(1). As to the consistency factor, the regulations provide that “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id. § 405.1520c(c)(2). While the ALJ “may, but [is] not required to, explain how [he] considered” the factors of relationship with the claimant, the medical source's specialization, and other factors, the ALJ “will explain how [he] considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings ....” Id. § 404.1520c(b)(2) (emphasis added). An ALJ must provide sufficient explanation to allow a reviewing court to “trace the path of [the] adjudicator's reasoning[.]” Amber H. v. Saul, No. 20-CV-00490 (ATB), 2021 WL 2076219, at *6 (N.D.N.Y. May 24, 2021) (quoting Revisions to Rules Regarding the Evaluation of Medical Evidence (“Revisions to Rules”), 2017 WL 168819, 82 Fed.Reg. 5844-01, at 5858 (Jan. 18, 2017) (“We expect that the articulation requirements in these final rules will allow a . . . reviewing court to trace the path of an adjudicator's reasoning[.]”)).
DISCUSSION
In his motion for judgment on the pleadings, Plaintiff argues, inter alia, that the ALJ erred in his determination of Plaintiff's RFC by failing to discuss relevant evidence regarding his ability to move his neck and monthly absences, which would have precluded him from performing the jobs identified by the VE. (Pl.'s Mem., ECF No. 22, at 14-22.)
Plaintiff argues that the ALJ ignored critical parts of the record, including evidence and testimony regarding limitations in his ability to move his neck, and failed to discuss this evidence in the RFC determination, despite significant discussion of this issue during the hearing and testimony from the VE that a hypothetical individual with certain limitations on neck movement would be unable to perform the jobs identified. (See Pl.'s Mem. at 5-6, 15, 20-21.) “While the ALJ's decision need not mention every item of testimony presented or reconcile explicitly every conflicting shred of medical testimony, the ALJ may not ignore or mischaracterize evidence of a person's alleged disability.” Olivera v. Comm'r of Soc. Sec., No. 18-CV-05232 (JPO), 2019 WL 4784747, at *5 (S.D.N.Y. Sept. 30, 2019) (citation omitted). “Thus, ordinarily, ‘[w]hen the record contains testimony tending to contradict the ALJ's conclusion, the ALJ must acknowledge the contradiction and explain why the conflicting testimony is being disregarded.'” Id. (quoting Arias v. Astrue, No. 11-CV-01614, 2012 WL 6705873 (TPG), at *2 (S.D.N.Y. Dec. 21, 2012); see also Hopkins v. Comm'r of Soc. Sec., No. 13-CV-01082 (GTS), 2015 WL 4508630, at *5 (N.D.N.Y. July 23, 2015) (“Although an ALJ need not discuss every shred of evidence, failure to discuss evidence that conflicts with an ALJ's finding prevents meaningful review.”).
Here, the medical evidence indicates that Tavarez frequently complained of pain in his neck (R. 804, 807, 811, 814, 817, 820) and his surgeon, Dr. Merola, opined in January 2019 that Tavarez was unable to move his neck. (R. 550.) In addition, Tavarez testified that he could not turn his head without a lot of pain. (R. 49-50.) Moreover, at the hearing, Plaintiff's counsel and the ALJ both questioned the VE regarding the impact of restrictions on neck movement on an individual's ability to perform the jobs identified by the VE. (R. 56-59.) However, in making his RFC determination the ALJ did not discuss Plaintiff's ability to move his neck or explain why no limitation was included in the RFC.
The Commissioner argues that the ALJ discussed the crucial factors related to Plaintiff's cervical degenerative disc disease with sufficient specificity to enable the Court to decide whether the determination is supported by substantial evidence and that the ALJ's decision not to include limitations on neck movement was supported by substantial evidence. (Comm'r Mem., ECF No. 26. at 16, 21.) The Court disagrees. Although the ALJ mentions Plaintiff's cervical scan showing disc bulges and disc herniation and an electromyogram showing cervical nerve root irritation, he does not explain how he considered that evidence in determining Plaintiff's RFC. See Frank G. v. Comm'r of Soc. Sec., No. 17-CV-00103 (GWC), 2019 WL 430887, at *6 (D. Vt. Feb. 4, 2019) (“merely mentioning [evidence of tenderness and limited range of motion in the cervical spine] in passing does not show that the ALJ properly considered limitations caused by Plaintiff's difficulty with head movements in determining his RFC”). The Commissioner asserts that the ALJ weighed this evidence against other medical evidence in the record (Comm'r Mem. at 16), but without any discussion by the ALJ, the Court cannot determine what evidence the ALJ relied on in concluding that Plaintiff did not require greater limitations. For example, in support of his physical RFC determination, the ALJ frequently cites Dr. Fkiaras's examination findings that Plaintiff had full or mildly diminished strength, but those findings do not address head and neck mobility. See Frank G., 2019 WL 430887, at *6. Indeed, Dr. Fkiaras's findings also include limitations in flexion/extension of the cervical spine and pain to palpation that could support at least some limitation in neck movement. (R. 414.) Nor does the ALJ cite to any affirmative evidence supporting his determination that Plaintiff could move his neck without restriction.
Moreover, although the ALJ appears to have determined that Dr. Merola's opinion was unpersuasive, he does not address the portion of the opinion that states that Plaintiff cannot move his neck and does not cite to any evidence that contradicts that portion of the opinion. Under these circumstances, the Court cannot determine whether the ALJ's RFC determination is supported by substantial evidence. See Hopkins, 2015 WL 4508630, at *6 (“The lack of discussion regarding Plaintiff's limitations in movement of her neck and head, calls into question whether the decision was actually based on substantial evidence.”); see also Burek v. Saul, No. 19-CV-00301 (MJR), 2020 WL 3401360, at *3-4 (W.D.N.Y. June 19, 2020) (same); Hinterberger v. Comm'r of Soc. Sec., No. 19-CV-00553 (JJM), 2020 WL 4434920, at *5 (W.D.N.Y. Aug. 3, 2020) (same). Given the VE's testimony that an individual with certain restrictions on neck movement would be precluded from performing the jobs she identified, this error was not harmless. See Frank G. 2019 WL 430887, at *8; Young v. Comm'r of Soc. Sec., No. 13-CV-00734 (NAM), 2014 WL 3107960, at *8 (N.D.N.Y. July 8, 2014).
As set forth below, the ALJ did not specifically articulate how persuasive he found any of the medical opinions.
Similarly, the ALJ did not discuss evidence in the record indicating that Plaintiff would be absent from work more than one day a month, despite the VE's testimony that “[i]n her education and experience, one absence per month is tolerated.” (R. 59.) There is evidence in the record to support the conclusion that in order to manage Plaintiff's numerous medical conditions, he would miss work more than one day per month, including an opinion by his treating psychologist Dr. Da Silva that he would be absent from work more than three days per month. (R. 757.) Although the ALJ appears to have found the opinion of Dr. Da Silva unpersuasive, he did not discuss this aspect of the opinion. Under these circumstances, the Court finds that the ALJ's failure to address the issue of how much time Plaintiff would miss in a month based on his ailments, and the VE's testimony that only one absence a month would be tolerated, was legal error. See Anderson v. Kijakazi, No. 20-CV-06462 (JPO) (OTW), 2022 WL 938115, at *8 (S.D.N.Y. Mar. 3, 2022), report and recommendation adopted, 2022 WL 925070 (S.D.N.Y. Mar. 29, 2022) (“If [the ALJ] had found even that particular portion of [doctor's] opinion [relating to monthly absences] persuasive, [the ALJ] would have incorporated it into the RFC, which in turn would have led him to find that Plaintiff was precluded from all work.”); see also Iglesias-Serrano v. Colvin, No. 16-CV-00418 (RWS), 2016 WL 7441697, at *8 (S.D.N.Y. Dec. 23, 2016) (“The ALJ's failure to even address this issue of how much time Plaintiff would miss in a month based on her ailments and the vocational expert's testimony that there would be no unskilled sedentary employment available for a person who missed more than one day per month was legal error.”); Gallagher v. Astrue, No. 10-CV-08338 (LTS) (AJP), 2012 WL 987505, at *22 (S.D.N.Y. Mar. 22, 2012), report and recommendation adopted, 2012 WL 1339357 (S.D.N.Y. Apr. 17, 2012) (substantial evidence did not support finding of no disability when ALJ failed to address vocational expert's testimony that there would be no jobs for someone who would miss three days per month). As with the ALJ's failure to discuss evidence of limitations in Plaintiff's ability to move his neck, this error was not harmless. See Greek v. Colvin, 802 F.3d 370, 376 (2d. Cir. 2015) (because plaintiff “could perform no jobs available in large numbers in the national economy if he had to miss four or more days of work per month, the ALJ's failure to provide adequate reasons for rejecting [that] opinion was not harmless”).
In addition, as set forth below, the Court finds that the ALJ erred in his evaluation of the medical opinion evidence.
Finally, although not specifically raised by Plaintiff, the Court also finds that the ALJ erred in his evaluation of the medical opinion evidence. The applicable regulations require the ALJ to articulate how persuasive he finds all of the medical opinions in the record and to explain how he considered the supportability and consistency factors. See 20 C.F.R. § 404.1520c(b) (“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.”); see also id. § 404.1520c(b)(2). “If the ALJ fails adequately to explain the supportability and consistency factors, or bases [his or] her explanation upon a misreading of the record, remand is required.” Rivera v. Comm'r of the Soc. Sec. Admin., No. 19-CV-04630 (LJL) (BCM), 2020 WL 8167136, at *14 (S.D.N.Y. Dec. 30, 2020), report and recommendation adopted, 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021) (citation and quotation marks omitted).
In discussing the medical opinion evidence, the ALJ did not explain how persuasive he found any of the opinions. (R. 19-22.) Although courts have acknowledged hesitancy to “assign ‘magic' status to the word ‘persuasiveness,'” the Court finds that the ALJ's discussion of the opinion evidence was otherwise insufficient to satisfy the regulatory standards. See Rua-Campusano v. Kijakazi, No. 20-CV-07087 (GBD) (SLC), 2021 WL 7287628, at *13 (S.D.N.Y. Dec. 10, 2021), report and recommendation adopted, 2022 WL 493390 (S.D.N.Y. Feb. 17, 2022). For Dr. Fkiaras and Dr. Merola, the ALJ found that the opinions were contradicted by physical testing by Dr. Fkiaras and by Plaintiff's “good physical appearance” at the hearing. (R. 22) This assessment is particularly lacking with respect to Dr. Fkiaras because it appears that the ALJ improperly substituted his own judgment in drawing conclusions from the physical examination findings while rejecting the opinion of Dr. Fkiaras based on those findings. Similarly, with respect to Dr. Merola, the ALJ did not discuss key portions of his opinion, including as set forth above, his opinion regarding Plaintiff's inability to move his neck, which is not contradicted by Dr. Fkiaras's examination findings and arguably is supported by them. In any event, in neither case did the ALJ address the supportability factor as required. The ALJ similarly erred when evaluating the opinion of Dr. Da Silva. (R. 22.) The ALJ's failure to consider the relevant regulatory factors is its own ground for remand. See Rua-Campusano, 2021 WL 7287628, at *13 (remanding for failure to discuss persuasiveness and consistency and supportability factors and citing cases).
The Court also agrees with Plaintiff (see Pl.'s Mem. at 17-19) that it was error for the ALJ to rely on his own judgment regarding Plaintiff's appearance at the hearing to contradict the medical opinion evidence. See Jones v. Saul, No. 19-CV-05542 (LGS) (BCM), 2020 WL 5775525, at 16 n.12 (S.D.N.Y. Sept. 11, 2020), report and recommendation adopted, 2020 WL 5775195 (S.D.N.Y. Sept. 28, 2020) (“Although an ALJ's observations of a plaintiff's demeanor while testifying are generally entitled to deference, the ALJ is not entitled to make medical judgments, or override those of the physicians who have submitted expert opinions, based on a claimant's appearance or conduct while testifying.”); see also id. (ALJ's personal observation arguably entitled to less deference where hearing conducted by videoconference).
Because I find that the case should be remanded on these grounds, I do not consider Plaintiff's remaining arguments.
CONCLUSION
For the reasons set forth above, I respectfully recommend that Plaintiff's motion be GRANTED; that the Commissioner's cross-motion be DENIED; and that this case be remanded for further proceedings.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Furman.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).