Opinion
1:21-cv-01937-JLR-GRJ
12-05-2022
JOSE C., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER
GARY R. JONES UNITED STATES MAGISTRATE JUDGE
In September of 2018, Plaintiff Jose C.applied for Supplemental Security Income Benefits under the Social Security Act. The Commissioner of Social Security denied the application. Plaintiff, represented by Ny Disability, LLC, Daniel Berger, 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 October 25, 2022. The parties, through counsel, submitted a Joint Stipulation in lieu of motions for judgment on the pleadings. (Docket No. 19). For the following reasons, it is recommended that Plaintiff should be granted judgment on the pleadings and this matter should be remanded for further proceedings.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on September 25, 2018, alleging disability beginning August 1, 2018. (T at 31).Plaintiff's application was denied initially and on reconsideration. He requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on December 9, 2019, before ALJ Angela Banks. (T at 49). Plaintiff appeared with an attorney and testified. (T at 53-64). The ALJ also received testimony from John Bopp, a vocational expert. (T at 64-71).
Citations to “T” refer to the administrative record transcript at Docket No. 12.
B. ALJ's Decision
On February 27, 2020, the ALJ issued a decision denying the application for benefits. (T at 25-47).
The ALJ found that Plaintiff had not engaged in substantial gainful activity since September 25, 2018 (the date he applied for benefits). (T at 33). The ALJ concluded that Plaintiff's major depressive disorder, post-traumatic stress disorder, and bipolar disorder were severe impairments as defined under the Act. (T at 33). However, the ALJ found 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 34).
At step four of the sequential analysis the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, with the following non-exertional limitations: he can perform the mental demands of work that requires him to understand, remember, and carry out instructions that can be learned in up to 30 days; he requires a setting that is goal-oriented (i.e., not requiring that he maintain a specified pace consistently throughout a workday); he can tolerate occasional interaction with the public and can interact appropriately with supervisors and coworkers. (T at 36).
The ALJ concluded that Plaintiff could perform his past relevant work as a commercial cleaner. (T at 40). In the alternative, considering Plaintiff's age (56 on the application date), education (marginal, able to communicate in English), 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 41). 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 September 25, 2018 (the application date) and February 27, 2020 (the date of the ALJ's decision). (T at 42).
On January 8, 2021, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. (T at 1-9).
C. Procedural History
Plaintiff commenced this action by filing a Complaint on March 5, 2021. (Docket No. 1). The parties, through counsel, filed a Joint Stipulation in lieu of motions for judgment on the pleadings on March 23, 2022. (Docket No. 19). The matter was assigned to the undersigned for a Report and Recommendation on October 25, 2022.
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 several arguments in support of his challenge to the ALJ's decision. Fundamentally, Plaintiff's arguments center on the contention that the ALJ failed to adequately address the medical opinion evidence.
A. 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).
The present case includes several medical opinions. The Court will summarize the key opinions and then address the ALJ's analysis of the medical opinion evidence.
1. Dr. James
In October of 2019, Dr. Modupe James, a psychiatrist, completed a medical source statement. At the time, she had been treating Plaintiff for four (4) months. (T at 1769). Dr. James diagnosed major depression and described Plaintiff as experiencing “significant symptoms.” (T at 1770). She opined that Plaintiff would be absent from work more than 3 times per month due to his impairments or treatment. (T at 1770).
Dr. James assessed at least moderate limitation in Plaintiff's ability to perform the mental demands of basic work activity, with marked limitation in his capacity to remember locations and work-like procedures, maintain attention and concentration for extended periods, use public transportation, and set realistic goals or make plans independently of others. (T at 1771).
Dr. James opined that Plaintiff had moderate restriction in his activities of daily living, moderate difficulties in maintaining social functioning, frequent deficiencies of concentration, persistence or pace, and repeated episodes of deterioration or decompensation in work or worklike settings. (T at 1772).
2. Dr. Porcelli
Dr. Clementina Porcelli, a psychologist, performed a consultative examination in June of 2018. Dr. Porcelli described Plaintiff as mildly depressed and dysthymic, with appropriate orientation, and displaying mildly impaired attention, concentration, and memory. (T at 1217-18). Plaintiff demonstrated below average cognitive functioning and fair to poor insight and judgment. (T at 1218).
Dr. Porcelli opined that Plaintiff could understand, remember, and apply simple directions and instructions without limitation; had moderate limitation with respect to interacting with supervisors, co-workers, and the public; and had moderate limitation with regard to: sustaining concentration and pace; sustaining an ordinary work routine and attendance; and regulating his emotions, controlling behavior, and maintaining well-being. (T at 1218). Dr. Porcelli assessed no limitation in Plaintiff's ability to maintain appropriate hygiene or attire or to take appropriate precautions. (T at 1218).
Dr. Porcelli diagnosed schizoaffective disorder, depressive type, and “panic attack.” (T at 1218). She characterized Plaintiff's prognosis as guarded and stated that his psychiatric problems “may significant interfere with [his] ability to function on a daily basis.” (T at 1218).
3. Dr. Schaich
In December of 2018, Dr. David Schaich, a psychologist, performed a consultative examination. Plaintiff presented with flat affect, anxious mood, appropriate orientation, and impaired attention, concentration, and memory. (T at 1496-97). Dr. Schaich described Plaintiff's cognitive functioning as “borderline” and found his insight and judgment “poor.” (T at 1497).
Dr. Schaich found no evidence of limitation in Plaintiff's ability to understand, remember, or apply simple directions and instructions; but assessed marked limitation in Plaintiff's capacity to use reason and judgment to make work-related decisions. (T at 1497). Dr. Schaich opined that Plaintiff had marked limitation in his ability to interact with supervisors, co-workers, and the public; marked impairment in his ability to sustain concentration and pace; moderate limitation in sustaining an ordinary routine and regular attendance; and marked limitation with respect to regulating emotions, controlling behavior, and maintaining well-being. (T at 1498).
Dr. Schaich diagnosed schizoaffective disorder, bipolar type, panic disorder, and generalized anxiety disorder. (T at 1498). He characterized Plaintiff's prognosis as guarded and opined that Plaintiff's problems “may significant interfere with [his] ability to function on a daily basis.” (T at 1498).
4. Non-Examining State Agency Review Physicians
Dr. S. Bhutwala provided an assessment in January of 2019, in which the physician opined that Plaintiff retained the mental capacity to perform unskilled work. (T at 90). Dr. Bhutwala assessed moderate to no limitation in Plaintiff's ability to perform the mental aspects of basic work activity. (T at 87-90).
Dr. Bhutwala performed another review in May of 2019, and opined that Plaintiff had mild limitation with respect to understanding, remembering, or applying information; mild impairment in social interaction; moderate limitation in maintaining concentration, persistence, and pace; and moderate impairment in adapting or managing himself. (T at 123).
In January of 2019, Dr. I Seok opined that Plaintiff could perform light work and could not perform his past relevant work. (T at 91). Dr. Seok found Plaintiff disabled due to the mental limitations identified in Dr. Schaich's consultative examination report. (T at 90-92). In March of 2019, Dr. Seok revised his opinion to the effect that Plaintiff did not have a severe physical impairment. (T at 103-104).
In February of 2019, Dr. Celine Payne-Gair opined that Plaintiff could understand and remember simple instructions; complete simple tasks; maintain attention and concentration for periods of at least 2 hours; complete a normal workday and workweek without significant psychologically-related impairments; perform at a consistent pace; relate appropriately to peers and supervisors; and adapt to routine changes in the workplace. (T at 1717).
5. ALJ's Analysis
The ALJ did not state precisely how persuasive she found Dr. James's opinion, but the decision makes clear that the ALJ was persuaded that Plaintiff had moderate limitation in several domains of functioning but did not accept Dr. James's assessment of marked limitation in Plaintiff's capacity to remember locations and work-like procedures, maintain attention and concentration for extended periods, use public transportation, and set realistic goals or make plans independently of others. (T at 38).
Likewise, the ALJ did not find persuasive Dr. Schaich's assessment of marked limitation in Plaintiff's ability to interact with supervisors, coworkers, and the public; sustain concentration and pace; regulate emotions, control behavior, and maintain well-being. (T at 39).
The ALJ found the opinions of Dr. Porcelli, Dr. Bhutwala, and Dr. Payne-Gair persuasive (T at 39) and incorporated moderate impairment in most domains of mental functioning into the RFC determination, which limited Plaintiff to work that requires him to understand, remember, and carry out instructions consistent with occupations that can be learned in up to 30 days; is goal-oriented versus requiring that he maintain a specified pace consistently throughout a workday; and involves no more than occasional interaction with the public. (T at 36).
The Court concludes that the ALJ's assessment of the medical opinion evidence should not be sustained even under the deferential standard of review applicable here. The ALJ's decision to discount the opinions of Dr. James (a treating provider) and Dr. Schaich (a consultative examiner) was based on her conclusion that the marked limitations they assessed were inconsistent with the treatment record and Plaintiff's activities of daily living. (T at 38-39). In particular, the ALJ characterized the mental status examinations as “largely normal” and described Plaintiff as “psychiatrically stable” when compliant with his medications. (T at 38). This analysis is inadequate for several reasons.
First, as the ALJ herself recognized, the treatment notes “show[ed] that [Plaintiff's] symptoms varied.” (T at 37). While Plaintiff would report periodic progress and some symptom relief, he was nevertheless described as experiencing depression, anxiety, crying spells, intermittent auditory hallucinations, panic attacks, and hypervigilance, all of which “continue[d] to impair [his] functioning in important life areas.” (T at 1440, 1462, 144751, 1719-20, 1721, 1722, 1723, 1725-26, 1727, 1732-33, 1742, 1746, 1753, 1755, 1805-07, 1834-41, 1842-50).
The Second Circuit has repeatedly cautioned ALJ's against “cherrypicking” the record and failing to account for the “wax and wane” of mental health symptoms. The Second Circuit has observed it is well-settled that “[c]ycles of improvement and debilitating symptoms [of mental illness] are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.” Estrella v. Berryhill, 925 F.3d 90, 97 (2d Cir. 2019)(quoting Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014)(alterations in original)); see also Stacey v. Comm'r of SSA, 799 Fed.Appx. 7, 10 (2d Cir. 2020)(cautioning “ALJs against scouring medical notes to draw their own conclusions based on isolated descriptions”); Gough v. Saul, 799 Fed.Appx. 12, 14 (2d Cir. 2020)(“We fear that the ALJ cherry-picked evidence from the record to support his conclusion that Gough could work full time even though the record as a whole suggested greater dysfunction.”).
Second, the ALJ overrated the relevance of Plaintiff's ability to engage in a limited range of daily activities and maintain appropriate behavior during relatively brief, relatively infrequent encounters with supportive mental health professionals.
The Commissioner's regulations recognize that a claimant's “ability to complete tasks in settings that are highly structured, or that are less demanding or more supportive than typical work settings does not necessarily demonstrate [her] ability to complete tasks in the context of regular employment during a normal workday or work week.” 20 C.F.R. Subpt. P, App. 1 § 12.00 (C) (6) (b); see also Primo v. Berryhill, 17 Civ. 6875, 2019 U.S. Dist. LEXIS 27074, at *31 (S.D.N.Y. Feb. 19, 2019)(noting that ALJs must recognize that “the effects of a mental health issue may be different in a work setting than in a non-work setting”); Flynn v. Comm'r of Soc. Sec. Admin., 729 Fed.Appx. 119, 121 (2d Cir. 2018)(decision to discount opinion based on treatment notes indicating claimant was “well-groomed and with calm affect” was “an assessment ... beyond the scope of the ALJ's authority”).
Third, even if the ALJ's consideration of the assessments provided by Dr. James and Dr. Schaich could otherwise be sustained, the ALJ failed to adequately address the evidence concerning Plaintiff's ability to interact appropriately with co-workers and supervisors.
Dr. James reported moderate impairment in Plaintiff's ability to accept instructions and respond appropriately to criticism from supervisors. (T at 1771). She also opined that Plaintiff had moderate loss in his ability to get along with co-workers and peers without unduly distracting them or exhibiting behavioral extremes. (T at 1771). To the extent Dr. James assessed moderate limitations in some domains, the ALJ apparently found those portions of his assessment persuasive. (T at 38). In any event, and most importantly, the ALJ did not provide any indication that she found unpersuasive the limitations assessed by Dr. James regarding Plaintiff's ability to interact appropriately with supervisors and co-workers.
Dr. Porcelli opined that Plaintiff had moderate limitation in interacting adequately with supervisors and co-workers. (T at 1218). The ALJ found Dr. Porcelli's opinion persuasive. (T at 39).
Notwithstanding the foregoing, while the ALJ's RFC determination restricts Plaintiff to occasional interaction with the public, the RFC includes the finding that Plaintiff can “interact appropriately with supervisors and coworkers,” and provides no limitation as to the frequency or nature of such interactions.
In sum, a treating provider (Dr. James) and two consultative examiners (Dr. Porcelli and Dr. Schaich) assessed at least moderate impairment in Plaintiff's ability to interact appropriately with supervisors and co-workers.
Dr. Schaich opined that Plaintiff had marked limitation in his ability to interact with supervisors and co-workers. (T at 1498).
The ALJ found one of these opinions (Dr. Porcelli) persuasive and another (Dr. Jones) at least somewhat persuasive but provided no explanation as to how she reconciled this with her determination that Plaintiff had no limitation in his ability to interact with supervisors and coworkers. The ALJ recognized that Plaintiff had at least moderate impairment in social interaction (T at 35), but provided no restriction related to his ability to interact with supervisors and co-workers, and gave no explanation for this omission. This was error, requiring remand. See Michelle A. v. Saul, No. 19-CV-00991-MJR, 2020 WL 7223235, at *5 (W.D.N.Y. Dec. 8, 2020)(“The ALJ's failure to then either impose a limitation as to plaintiff's ability to interact with supervisors, or to explain, based upon the evidence in the record, why one was not necessary, is an error which requires remand.”)(collecting cases); see also Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)(noting that “the crucial factors in any determination must be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence”).
Accordingly, for the foregoing reasons, the Court concludes that the ALJ erred in her assessment of the medical opinion evidence and, therefore, her assessment should not be sustained. The ALJ's errors likewise undermine her Listings analysis and consideration of Plaintiff's subjective complaints, both of which were based on her consideration of the medical opinion evidence. (T at 34-36, 40).
B. 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).
For the reasons explained above, the Court recommends that this case should be remanded for further proceedings and proper consideration of the medical opinion evidence.
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff should be GRANTED judgment on the pleadings; 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).