Opinion
20-CV-4806 (MKV) (KNF)
03-10-2022
RICHARD IPPOLITO, Plaintiff, v. ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant.
HONORABLE MARY KAY VYSKOCIL, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE.
INTRODUCTION
Richard Ippolito (“Ippolito”) commenced this action against the Commissioner of Social Security (the “Commissioner”), seeking review of an administrative law judge's (“ALJ”) December 12, 2018 decision, finding Ippolito ineligible for disability insurance benefits, pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-43. Before the Court are the parties' motions for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
ALJ'S DECISION
The ALJ found that Ippolito: (1) meets the insured status requirements of the Social Security Act through December 31, 2021; (2) has not engaged in substantial gainful activity since February 10, 2016, the alleged disability onset date; (3) “has the following severe impairments: cervical, thoracic, and lumbar degenerative disc disease; carpal tunnel syndrome; chro[n]ic pain syndrome; obstructive sleep apnea; history of Lyme disease; and depression”; (4) does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (5) has the residual functional capacity to perform the full range of sedentary work, “except that he can occasionally balance, stoop, kneel, crouch, crawl, and climb stairs and ramps, but can never climb ladders, ropes, or scaffolds, ” “can frequently reach, handle, and finger; but can only occasionally reach overhead, ” “requires the use of a cane for ambulation and must avoid unprotected heights and hazardous machinery, ” and psychiatrically, “is able to understand, remember, and carry out simple and routine tasks”; (6) is unable to perform any past relevant work; (7) was a younger individual age 45-49 on the alleged disability onset date; and (8) has at least a high school education and is able to communicate in English.”
The ALJ gave great weight to the 2016 opinion of Dr. R. Reynolds (“Dr. Reynolds”) because: (i) he was able to review the plaintiff's medical history, except for later treatment records which note largely the same magnetic resonance imaging and clinical findings other than the use of a cane; (ii) he has programmatic expertise with the Social Security disability program; and (iii) his findings are consistent with the medical evidence of record. The ALJ also accorded great weight to Dr. Adam Soyer (“Dr. Soyer”), notwithstanding that he “rendered his opinion under the worker's compensation board guidelines, which applies a different standard than Social Security Administration, ” because his “conclusion corroborates the finding the claimant retained the capability to perform sedentary work.” Neurologist Dr. Kaushik Das's (“Dr. Das”) 2016 opinion that the plaintiff would be unable to return to work was given little weight because such a determination is reserved for the Commissioner and Dr. Das's opinion was not supported by the medical evidence, including his own treatment notes. The ALJ gave little weight to the opinions of Dr. Andrew Faskowitz (“Dr. Faskowitz”) because it was not supported by or consistent with: 1) the opinions of Drs. Soyer and Reynolds; 2) his own notes indicating that the plaintiff was alert and in no apparent distress, with an antalgic gait but normal strength or sensation; and 3) the clinical examinations and course of care. For these same reasons, the ALJ gave little weight to the 2016 opinion of the plaintiff's chiropractor, Dr. Paul Lentini (“Dr. Lentini”). Dr. Catherine Pelczar-Wissner's (“Dr. Pelczar-Wissner”) opinion was given little weight because it was inconsistent with the ALJ's residual functional capacity finding and the opinions of Drs. Reynolds and Soyer, as well as undermined by the longitudinal treatment notes showing normal strength, sensation and deep tendon reflexes on most examinations “with only slight reductions on others.” The ALJ determined that the transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is not disabled regardless of the transferable job skills. Considering Ippolito's age, education, work experience and residual functional capacity, the ALJ found that jobs exist in significant numbers in the national economy that he can perform, such as final assembler, preparer and a stone setter. The ALJ concluded that Ippolito has not been under disability from February 10, 2016, through the date of the decision.
PLAINTIFF'S CONTENTIONS
The plaintiff argues that the ALJ did not assess properly medical evidence in the record and his credibility.
Specifically, the Administrative Law Judge did not analyze the office notes and physical examinations of Dr Frank Cricchio, Dr. [Anousheh] Ghezel-Ayagh and Dr. Marsha Charles Pierre. Here the Administrative Law Judge failed to mention and review the treatment notes of these physicians who treated the plaintiff during the period in question. The medical reports and statements of these treating sources could support a more limited RFC [residual functional capacity] than the Administrative Law Judge found. The plaintiff understands the Administrative Law Judge is not required to reconcile every shred of conflicting evidence and claim that just because an Administrative Law Judge does not cite an examination finding in the record does not mean that it was not considered. In this case however the noncited evidence consisted of treatment notes from a pain management physician, Dr. Charles-Pierre, the plaintiff's internist, Dr. Frank Cricchio, examining physician, Dr. Ghezel-Ayagh and even the chiropractor, Dr. Paul [Lentini], except for Dr. Lentini's questionnaire he completed at the request for Social Security.
Moreover, the ALJ's assignment of weight to non-treating physicians Dr. Reynolds, whose expertise is not identified in the record and who did not review medical opinions, and Dr. Soyer, who did not indicate a function-by-function assessment or how long the plaintiff can stand and walk, is inconsistent with the record evidence. The Plaintiff contends that the ALJ's circular reasoning is evidenced in his assessment of treating physician Dr. Faskowitz's opinion, which the ALJ states is not consistent with the opinions of Dr. Reynolds and Dr. Soyer. However, Dr. Faskowitz's opinion is consistent with that of chiropractor Dr. Lentini, who has seen the plaintiff on many occasions, as well as with those of Dr. Anousheh Ghezel-Ayagh (“Dr. Ghezel-Ayagh”), Dr. Marsha Charles-Pierre (“Dr. Charles-Pierre”), Dr. Alfred Becker (“Dr. Becker”), Dr. Frank Cricchio (“Dr. Cricchio”) and Dr. Firas Chamas (“Dr. Chamas”). According to the plaintiff, it is not clear that the ALJ assessed the plaintiff's credibility, and he failed to consider the plaintiff's long work record, including that following the plaintiff's 2014 accident he tried to continue working despite chronic pain. The plaintiff maintains that remand is warranted.
DEFENDANT'S CONTENTIONS
The defendant contends that substantial evidence supports the ALJ's finding of residual functional capacity for sedentary work with limitations, namely, the reports of Dr. Reynolds and Dr. Soyer and the plaintiff's activities and conservative treatment. Dr. Soyer examined the plaintiff in May 2017 and assessed that he was able to do sedentary work with no lifting greater than ten pounds, which is supported by Dr. Soyer's examination findings. Dr. Reynolds, a highly qualified expert in Social Security disability evaluation, reviewed the record as of December 2016, assessing that the plaintiff could do a range of sedentary work. Furthermore, the ALJ acknowledged that Dr. Soyer performed an independent medical examination for the plaintiff's worker's compensation claim and nothing in the record suggests that his report was compromised by that fact. The worker's compensation definition of sedentary work is “strikingly similar to the Social Security definition, ” and a reasonable factfinder could conclude that Dr. Soyer's opinion that the plaintiff could perform sedentary work not requiring lifting more than ten pounds indicates that he could perform sedentary work as defined by the Social Security Act regulations. According to the defendant, the record indicates Dr. Reynolds's “specialty codes” are 12 and 19, which mean that he is an internist and general practitioner. Dr. Reynolds's opinion is supported by the imaging results and objective examination findings, and the ALJ found it persuasive. The ALJ accorded weight properly to medical opinions and explained the weight accorded.
The defendant asserts that the ALJ evaluated properly all the record evidence, although he did not name each physician who saw the plaintiff. The plaintiff cannot overcome the ALJ's residual functional capacity finding by pointing to evidence that the ALJ did not consider in detail. The defendant contends that the ALJ did not reject entirely the plaintiff's subjective complaints of pain and other symptoms but noted that he received conservative treatment and did not follow through with Dr. Chama's recommendation that he see an infectious disease specialist and obtain specialized studies of the cervical spine to determine whether the plaintiff could benefit from cervical surgery. The ALJ also considered the plaintiff's work history and referenced his March 2014 work incident. According to the defendant, the ALJ's determination should be accorded deference because he heard the plaintiff's testimony and observed his demeanor.
LEGAL STANDARD
“After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. §405(g).
A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by “substantial evidence” or if the decision is based on legal error. Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citations omitted).
“The substantial evidence standard means once an ALJ finds facts, we can reject those facts ‘only if a reasonable factfinder would have to conclude otherwise.'” Brault v. Soc. Sec. Admin. Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (citation omitted). The Commissioner's “finding will be sustained if supported by substantial evidence, even where substantial evidence may support the plaintiffs position and despite that the court's independent analysis of the evidence may differ from” the Commissioner's. Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992) (citations omitted). “Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.” Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (internal citations omitted).
To qualify for disability benefits, an individual must be unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Administration's regulations establish a five-step process for determining a disability claim. See 20 C.F.R. § 404.1520(a)(4).
If at any step a finding of disability or nondisability can be made, the [Social Security Administration] will not review the claim further. At the first step, the agency will find nondisability unless the claimant shows that he is not working at
a “substantial gainful activity.” At step two, the [Social Security Administration] will find nondisability unless the claimant shows that he has a “severe impairment, ” defined as “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the [Social Security Administration] assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the [Social Security Administration] to consider so-called “vocational factors” (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy.Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 379-80 (2003) (internal citations omitted).
If “a treating source's medical opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, ” it is given “controlling weight.” 20 C.F.R. § 404.1527(c)(2).
When we do not give the treating source's medical opinion controlling weight, we apply factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this section in determining the weight to give the medical opinion. We will always give good reasons in our notice of determination or decision for the weight we give to your treating source's medical opinion.20 C.F.R. § 404.1527(c)(2).
The factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) are the “[l]ength of the treatment relationship and the frequency of examination” and “[n]ature and extent of the treatment relationship.” 20 C.F.R. § 404.1527(c)(2). The factors listed in paragraphs (c)(3) through (c)(6) are evidentiary supportability, consistency of the opinion with the record as a whole and medical specialization of the treating source. See 20 C.F.R. §§ 404.1527(c)(3)-(c)(6). “We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the medical opinion of a source who is not a specialist.” 20 C.F.R. § 404.1527(c)(5). “Although the treating physician rule generally requires deference to the medical opinion of a claimant's treating physician, the opinion of the treating physician is not afforded controlling weight where . . . the treating physician issued opinions that are not consistent with other substantial evidence in the record, such as the opinions of other medical experts.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citations omitted). “The applicant bears the burden of proof in the first four steps of the sequential inquiry; the Commissioner bears the burden in the last.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).
APPLICATION OF LEGAL STANDARD
Medical Evidence Assessment
The plaintiff's claim is subject to the treating physician rule because he filed his claim on October 11, 2016. Although the ALJ referenced the plaintiff's May 23, 2016 evaluation for neck and back pain by Dr. Neil Patel (“Dr. Patel”), a cervical epidural injection administered on June 6, 2016, the June 22, 2016, and the August 29, 2016 examinations, he did not assess any weight to the opinions of treating source Dr. Patel. The ALJ also referenced the plaintiff's examination for middle back pain and numbness in the right hand by Dr. Jeffrey Oppenheim, without assigning any weight to the opinion of that treating source. The ALJ referenced the plaintiff's treatment by Dr. Chamas, Dr. Becker, and psychologist Stephen Koretsky, Ph.D., but failed to assess any weight to those treating sources' opinions. The ALJ did not mention or assess the opinions of primary care physicians Dr. Cricchio and Dr. Ghezel-Ayagh, who treated the plaintiff for lyme disease and cervical spasticity, neurologist Dr. Xiangmin Peng, and treating orthopedic surgeon Dr. Chamas. Where, as here, the ALJ failed to assess weight to multiple treating sources, some of which he discussed in his decision while others he did not even mention, the Court finds that the ALJ did not comply with the requirements of the Social Security Act regulations pertaining to the assessment of medical opinions, including considering the required factors in assessing treating sources' medical opinions and giving good reasons for the weight given to the plaintiff's treating sources' medical opinions. Accordingly, remand is warranted on this ground.
Credibility Assessment
Contrary to the plaintiff's assertion that it is not clear that the ALJ assessed the plaintiff's credibility, the ALJ determined that the plaintiff's “statements concerning the intensity, persistence and limiting effects of [his alleged] symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision, ” and his “treatment has been essentially routine and/or conservative in nature, ” involving primarily “medication management, chiropractor care, and epidural steroid injection.” Moreover, the ALJ found that the plaintiff's allegations are “undermined by the fact that he is independent with his personal care, could perform light cleaning and prepare meals, drive a motor vehicle, and assist in cleaning his fish tank.” Although the ALJ relied improperly on his own opinion that the plaintiff's medical treatment was routine and conservative, the ALJ's reliance on the nature and extent of the plaintiff's daily activities, his failure to follow through with the surgeon's recommendation to obtain an updated magnetic resonance imaging test result and see a physician in 2017, and the consistent results of his physical examinations over a long period of time constitute substantial evidence supporting the ALJ's credibility determination. Accordingly, remand is not warranted on this ground.
RECOMMENDATION
Fore the foregoing reasons, I recommend that: (1) the plaintiff's motion for judgment on the pleadings, Docket Entry No. 25, be granted and the matter remanded pursuant to sentence four of 42 U.S.C. §405(g); and (2) the defendant's motion for judgment on the pleadings, Docket Entry No. 27, be denied.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court. Any requests for an extension of time for filing objections must be directed to Judge Vyskocil. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).