Opinion
1:20-cv-09093-GBD-GRJ
05-23-2022
LAURICE P., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES UNITED STATES MAGISTRATE JUDGE
In July of 2018, Plaintiff Laurice P. applied for Disability Insurance Benefits and Supplemental Security Income benefits under the Social Security Act. The Commissioner of Social Security denied the applications. Plaintiff, represented by Olinsky Law Group, Howard David Olinsky, Esq., of counsel, commenced this action seeking judicial review of the Commissioner's denial of benefits pursuant to 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 May 2, 2022. Presently pending are the parties' Motions for Judgment on the Pleadings under Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket Nos. 18, 23). For the following reasons, it is recommended that Plaintiff's motion should be granted, the Commissioner's motion should be denied, and this matter should be remanded for further proceedings.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on July 9, 2018, alleging disability beginning November 1, 2017. (T at 10, 176, 217). Plaintiff's applications were denied initially and on reconsideration. She requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on September 17, 2019, before ALJ Melissa Warner. (T at 59-91). Plaintiff appeared with an attorney and testified. (T at 67-85). The ALJ also received testimony from Melissa Fass-Karlin, a vocational expert. (T at 8590).
Citations to “T” refer to the administrative record transcript at Docket No. 15.
B. ALJ's Decision
On November 15, 2019, the ALJ issued a decision denying the applications for benefits. (T at 7-25). The ALJ found that Plaintiff engaged in substantial gainful activity during the period between November of 2017 and December of 2018 but did not engage in substantial gainful activity beginning in January of 2019 and continuing through the date of the decision. (T at 13). The ALJ determined that Plaintiff met the insured status requirements of the Social Security Act through September 30, 2023 (the date last insured). (T at 13).
The ALJ concluded that Plaintiff's right knee arthritis; lumbar scoliosis; obesity; migraine; and carpal tunnel syndrome were severe impairments as defined under the Act. (T at 13). However, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equals one of the listed impairments in 20 CFR Part 403, Subpart P, Appendix 1. (T at 14).
At step four of the sequential analysis the ALJ then determined that Plaintiff retained the residual functional capacity (“RFC”) to perform sedentary work, as defined in 20 CFR 404.1567 (a) and 416.967 (a), with the following limitations: she must be allowed to change position every 30 minutes for 1-2 minutes in the immediate vicinity of the work station; she must be permitted the use of a cane to stand or walk away from the work station; no more than rare climbing of stairs or crouching; no kneeling, crouching or climbing ladders; no more than frequent exposure to respiratory irritants; no exposure to obvious hazards; and limited to simple work that is not fast-paced (i.e., no work involving an assembly line, conveyor belt, or like system). (T at 15).
The ALJ concluded that Plaintiff could not perform her past relevant work as a child monitor or home attendant. (T at 18-19). However, considering Plaintiff's age (44 on the alleged onset date), education (limited, 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 19). 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 November 1, 2017 (the alleged onset date) and November 20, 2019 (the date of the ALJ's decision). (T at 20-21).
On August 31, 2020, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. (T at 1-6).
C. Procedural History
Plaintiff commenced this action, by and through her counsel, by filing a Complaint on October 29, 2020. (Docket No. 1). Plaintiff filed a motion for judgment on the pleadings, supported by a memorandum of law, on September 23, 2021. (Docket No. 18). The Commissioner interposed a cross-motion for judgment on the pleadings, supported by a memorandum of law, on February 22, 2022. (Docket No. 23, 24). On March 14, 2022, Plaintiff submitted a reply memorandum of law in further support of her motion. (Docket No. 25). The matter was assigned to the undersigned for a report and recommendation on May 2, 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 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 one primary argument in support of her challenge to the ALJ's decision. Plaintiff contends 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's application for benefits was filed 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).
In the present case, Dr. Fazi Hussain, an examining physician, completed an assessment in June of 2018. On examination, Dr. Hussain noted mild to moderate tenderness to flexion and extension of the lumbar spine, with decrease in range of motion; mild to moderate tenderness to motion, along with mild swelling at the right knee joint; painful gait; using a cane to ambulate; and difficulty walking. (T at 320). Dr. Hussain opined that Plaintiff was limited to standing and walking less than 1 hour and sitting for 4 hours, with no repetitive reaching, kneeling, squatting, climbing, or repetitive bending, crouching, or stooping. (T at 321-22). He also found that Plaintiff would perform at a slow pace, with limited productivity. (T at 324). Dr. Hussain diagnosed internal derangement of the knee, pain in joint (lower leg), osteoarthritis, and obesity. (T at 326-27). Dr. Hussain opined that these conditions impacted Plaintiff's employment. (T at 326-27).
Dr. Ram Ravi performed a consultative examination in August of 2018. Dr. Ravi diagnosed back pain, bilateral knee pain, headaches, hypertension, and asthma. (T at 423). He assessed no limitation as to sitting, but found moderate limitation with respect to standing, walking, bending, pushing, pulling, lifting, and carrying due to back pain, knee pain, and headaches. (T at 423).
In October of 2018, Dr. I Seok, a non-examining State Agency review physician, opined that Plaintiff could stand or walk for 2 hours in an 8-hour workday; sit for about 6 hours; and occasionally lift to 10 pounds. (T at 114). Dr. Seok assessed no postural limitations. (T at 115).
The ALJ found Dr. Hussain's opinion “not particularly persuasive.” (T at 18). The ALJ described Dr. Ravi's assessment as “vague” and “only somewhat persuasive.” (T at 18). The ALJ found Dr. Seok's opinion “somewhat persuasive.” (T at 18). As discussed above, the ALJ found that Plaintiff retained the RFC to perform a reduced range of sedentary work. (T at 15).
After careful review of the record the Court concludes that the ALJ's consideration of the medical opinion evidence is not supported by substantial evidence or consistent with applicable law. Here's why.
First, the ALJ cited Dr. Hussain's lack of a treating relationship with Plaintiff as a reason for discounting his assessment (T at 18). Notably, however, Dr. Ravi and Dr. Seok likewise lacked a treating relationship with Plaintiff. Indeed, Dr. Seok never even examined Plaintiff. (T at 18). The ALJ did not explain why she considered the lack of treating relationship relevant only when assessing the supportability and consistency of Dr. Hussain's opinion.
Second, the ALJ found Dr. Hussain's assessment inconsistent with his clinical examination, which the ALJ described as “show[ing] only some lumbar tenderness and decreased range of motion, right knee tenderness and mild swelling, and use of a cane.” (T at 18). The ALJ concluded that “[o]therwise, the examination was unremarkable.” (T at 18). This is not consistent with the record. Dr. Hussain also reported that Plaintiff exhibited a painful gait and difficulty walking, findings which are inconsistent with the ALJ's conclusion that the examinations were “unremarkable. (T at 320). Further, Dr. Hussain's findings are consistent with Dr. Ravi's examination, which noted moderately antalgic gait even with the use of a cane and an inability to walk on heels and toes. (T at 421).
Third, the ALJ found it significant that Plaintiff was “working at the sedentary exertion level” at or about the time of Dr. Hussain's assessment. (T at 18). The ALJ apparently believed Plaintiff's ability to perform this work was inconsistent with the limitations assessed by Dr. Hussain. (T at 18). The ALJ, however, did not account for the special conditions under which the work was performed. Plaintiff described her employment as “a little babysitting” for her 8-year-old and 13-year-old cousins. (T at 68-69). The work was performed in Plaintiff's home, with assistance from her husband and children. (T at 68-69). Her main responsibility was making sure the children ate; she did not carry any weight or take the children on outings. (T at 69-70). The ALJ provided no explanation as to how the performance of such work was evidence of physical capacity beyond that assessed by Dr. Hussein and/or how it translated into the ability to sustain competitive employment, even at a reduced range of sedentary exertion. See Croce v. Acting Comm'r of Soc. Sec., No. 17-CV-440 (RRM), 2018 WL 4636815, at *6 (E.D.N.Y. Sept. 27, 2018)(remanding because “ALJ did not address in her decision any of this evidence that may suggest that [claimant's] work was performed under special conditions”); see also 20 C.F.R. § 404.1573(c).
Fourth, the ALJ found Dr. Ravi's assessment of moderate limitations “vague” (T at 18) without considering its consistency with Dr. Hussein's assessment and/or seeking to further develop the record by re-contacting Dr. Ravi for clarification. This was error, particularly since the ALJ did not find any of the medical opinions of record fully persuasive. See Piscope v. Colvin, 201 F.Supp.3d 456, 464 (S.D.N.Y. 2016)(“Given the conflicts in the medical evidence, and in light of the ALJ's decision to grant none of the medical opinions full weight, the record calls for enhancement through inquiries to the treating physicians or consultants that might shed light on the import of their opinions and the conflicts the ALJ identified.”); see also Shawn H. v. Comm'r of Soc. Sec., No. 2:19-CV-113, 2020 WL 3969879, at *7 (D. Vt. July 14,2020)(“Moreover, the ALJ should have considered that the opinions of Stephens and Dr. Lussier are consistent with each other.”).
Lastly, the ALJ did not adequately address the potential impact of Plaintiff's headaches on her ability to perform the demands of sedentary work. The ALJ recognized Plaintiff's migraines as a severe impairment (T at 13) and the record documents complaints and treatment for severe headaches, impacting Plaintiff's vision and causing nausea. (T at 74, 75, 357, 433, 481, 496-97). Dr. Ravi referenced Plaintiff's headaches as one of the conditions giving rise to her moderate limitations. (T at 423). The ALJ generally described the course of treatment for Plaintiff's headaches (T at 16) and cited the headaches as a reason for incorporating postural limitations into the RFC (T at 18), but otherwise failed to address the extent to which the condition might impact Plaintiff's ability to concentrate, the effect on Plaintiff of exposure to light, the impact on Plaintiff's ability to maintain a work schedule, and/or otherwise Plaintiff's ability to perform the demands of basic work activity. This was error requiring remand.
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).
Given the deficiencies in the ALJ's analysis related to the medical opinion evidence, as discussed above, it is recommended that this case should be remanded for further proceedings, including a proper consideration of the medical opinion evidence under the applicable standard and, if aspects of the evidence are still considered vague on reconsideration, then for further development of the record.
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 18) should be GRANTED; the Commissioner's Motion for Judgment on the Pleadings (Docket No. 23) should be DENIED; and this case should be remanded for further proceedings under sentence four of section 405 (g) of the Social Security Act.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).