Mack v. Comm'r of Soc. Sec.

Full title: REATHIE MACK, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Court: United States District Court, S.D. New York

Date published: Jul 26, 2021

Civil Action 20 Civ. 2722 (RA) (SLC) (S.D.N.Y. Jul. 26, 2021)

Opinion

Civil Action 20 Civ. 2722 (RA) (SLC)

07-26-2021

REATHIE MACK, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

SARAH L. CAVE, United States Magistrate Judge.

TO THE HONORABLE RONNIE ABRAMS, United States District Judge:

REPORT & RECOMMENDATION

SARAH L. CAVE, United States Magistrate Judge.

I. INTRODUCTION

Plaintiff Reathie Mack (“Ms. Mack”) commenced this action pursuant to Section 205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. § 405(g). (ECF No. 1). She seeks review of the decision by the Commissioner (the “Commissioner”) of the Social Security Administration (“SSA”), denying her November 2012 application for Disability Insurance Benefits (“DIB”) under the Act. (Id.) Ms. Mack contends that the decision of the Administrative Law Judge (“ALJ”), dated December 10, 2019 (the “ALJ Decision”), was “erroneous, not supported by substantial evidence on the record, and/or contrary to law, ” and asks the Court to grant her the monthly maximum insurance benefits or, in the alternative, to remand for a new hearing to reconsider the evidence. (Id. ¶ 8, Wherefore Clause (c)).

The parties have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). On December 28, 2020, Ms. Mack filed a motion for judgment on the pleadings (ECF No. 18) (“Ms. Mack's Motion”), on March 9, 2021, the Commissioner cross-moved (ECF No. 21) (the “Commissioner's Motion”, together with Ms. Mack's Motion, the “Motions”)), and on March 25, 2021, Plaintiff filed her reply (the “Reply” (ECF No. 23)). For the reasons set forth below, I respectfully recommend that Ms. Mack's Motion (ECF No. 18) be GRANTED IN PART to the extent she seeks reversal of the ALJ Decision and DENIED IN PART to the extent she seeks remand solely for a calculation of benefits, that the Commissioner's Motion (ECF No. 21) be DENIED, and that the case be remanded for further proceedings.

II. BACKGROUND

A. Procedural History

On November 20, 2012, Ms. Mack filed an application for DIB, ¹ alleging that she had been unable to work since June 24, 2012 (the “Onset Date”). (SSA Administrative Record (“R.”) 198, 207 (ECF Nos. 12-12-9)). On January 28, 2013, the SSA denied Ms. Mack's application, finding that she was not disabled. (R. 101-02). On March 1, 2013, Ms. Mack requested a hearing before an ALJ. (R. 115). On March 28, 2014 and June 18, 2014, she appeared before ALJ Seth I. Grossman for an evidentiary hearing (the “First ALJ Hearing”). (R. 30-93). A medical expert (“ME”) and a vocational expert (“VE”) testified at the First ALJ Hearing. (R. 65-89).

1 In order to quality for DIB, one must be both disabled and insured for benefits. 42 U.S.C. § 423(a)(1)(A); 20 C.F.R. §§ 404.120, 404.315(a). The last date a person meets the insurance requirement is the date by which the claimant must establish a disability. Ms. Mack met the insurance requirements through September 30, 2015 (R. 207), and thus her disability must have begun on or before that date to quality for DIB.

On January 29, 2015, ALJ Grossman found that Ms. Mack was not disabled under the Act. (R. 14-29). On April 7, 2016, the SSA Appeals Council denied Ms. Mack's request for review of ALJ Grossman's decision (R. 1-7) and, on June 1, 2016, Ms. Mack filed a complaint in this Court challenging ALJ Grossman's decision. (See Mack v. Comm'r of Soc. Sec., No. 16 Civ. 4066 (WHP), ECF No. 1). By Stipulation and Order executed on October 25, 2016 and so-ordered by the Court on November 9, 2016, the parties agreed to remand the matter to the Commissioner for further administrative proceedings. (R. 798-99). On February 15, 2017, the SSA Appeals Council vacated ALJ Grossman's decision and remanded the case for a new hearing. (R. 804-09).

On November 29, 2017, Ms. Mack appeared for a hearing before ALJ Kimberly L. Schiro (the “Second ALJ Hearing”). (R. 739-96). A VE also testified. (R. 763-85). On February 15, 2018, ALJ Schiro found that Ms. Mack was not disabled under the Act through the date last insured (“DLI”). (R. 651-72). On June 5, 2018, Ms. Mack filed a complaint in this Court challenging ALJ Schiro's decision. (See Mack v. Comm'r of Soc. Sec., No. 18 Civ. 4978 (SN), ECF No. 1). By Stipulation and Order executed on January 11, 2019 and so-ordered by the Court on January 24, 2019, the parties agreed to remand the matter to the Commissioner for further administrative proceedings. (R. 1990-91). On June 7, 2019, the SSA Appeals Council vacated ALJ Schiro's decision and remanded the case for a new hearing. (R. 1992-97).

On November 6, 2019, Ms. Mack appeared for another hearing before ALJ Schiro (the “Third ALJ Hearing). (R. 1923-66). A VE testified at the hearing. (R. 1946-64). On December 10, 2019, ALJ Schiro again found that Ms. Mack was not disabled under the Act through the DLI. (R. 1900-22). The ALJ found that Ms. Mack had seven severe impairments-left shoulder impairment, status-post two surgeries; right shoulder impairment with subsequent surgery; osteoarthritis of the knees; degenerative changes of the cervical spine; plantar fasciitis; arthritis of the left hip; and obesity-but concluded that the severity of these impairments did not meet or medically equal the requisite criteria for a finding of disability. (R. 1906-07). ALJ Schiro also concluded that, through the DLI, Ms. Mack had the residual functional capacity (“RFC”) to perform light work subject to several limitations, and that jobs existed in significant numbers in the national economy that Ms. Mack could have performed. (R. 1907-13). The parties cite no evidence-and the Record contains none-suggesting the SSA Appeals Council assumed jurisdiction of the case, so the ALJ Decision became the “final decision of the Commissioner.” 20 C.F.R. § 404.984(a).

On April 1, 2020, Ms. Mack filed a Complaint in this Court challenging ALJ Schiro's decision. (ECF No. 1). In her Motion, Ms. Mack argues that the ALJ “failed to apply the correct legal standard to the evidence and his [sic] decision is not supported by substantial evidence.” (ECF No. 19 at 6). In particular, Ms. Mack raises four points in her Motion: (1) the ALJ failed to apply the treating physician rule; (2) the ALJ did not consider the side effects of Ms. Mack's medications; (3) the ALJ's RFC finding was not supported by substantial evidence; and (4) the ALJ erred in relying on the VE's testimony. (ECF No. 19 at 26-34). The Commissioner argues that the ALJ Decision is supported by substantial evidence and should be affirmed. (ECF No. 22).

B. Factual Background

1. Non-medical evidence

Born in 1962, Ms. Mack was 49 years old on the Onset Date and 53 years old on the DLI. (R. 94, 1906-07, 1912, 1947). She has an eleventh-grade education. (R. 38). Ms. Mack worked as a home health aide until June 24, 2011, when she injured her left shoulder while assisting a patient. (R. 34, 49, 399, 747). At the time of the First ALJ Hearing, Ms. Mack lived with her four children, who were then 21, fourteen, thirteen, and twelve. (R. 54).

2. Medical evidence

Ms. Mack provides a detailed summary of the medical evidence. (See ECF No. 19 at 724). The Commissioner provides no summary; instead, citations to the Record are found only in the “Argument” section of the Commissioner's brief. (ECF. No. 22). Although most of those citations are to the ALJ Decision itself, the citations to Record evidence outside the ALJ Decision are to evidence also cited in Ms. Mack's brief. (Compare ECF No. 22 at 11, 12, 15-17, 24-25 with ECF No. 19 at 9, 11-15, 17, 19, 32). Accordingly, the Court adopts Ms. Mack's summary of the medical evidence as accurate and complete and references the pertinent evidence for purposes of analyzing the Motions.

C. Administrative Proceedings

1. The First ALJ Hearing, decision, and Appeals Council order

On March 28, 2014 and June 18, 2014, ALJ Grossman held the First ALJ Hearing, at which Ms. Mack was represented by counsel. (R. 30-93).² Ms. Mack testified that she was 51 years old at the time of the hearing and is right-hand dominant. (R. 34). She said she had worked as a “home health aide” until June 24, 2011, when she injured her left shoulder while working. (R. 34, 38, 48).³ Ms. Mack confirmed that, at the time of hearing, she was “on Worker's Compensation” benefits (R. 34), which she was awarded following a hearing on August 3, 2012. (R. 195).

2 ALJ Grossman adjourned the hearing on March 28, 2014 in order to obtain medical records from several of Ms. Mack's treating physicians. (R. 41-43).

3 The Court notes that, at the First ALJ Hearing, Ms. Mack's then-attorney made “an application to change the onset date . . . to June 24, 2011, ” claiming it was “incorrectly noted as June 24, 2012.” (R. 33). At the Second ALJ Hearing, Ms. Mack, through her present counsel, amended the alleged onset date again, this time to Ms. Mack's 50^th birthday. (R. 761, 793). Despite these apparent amendments to the alleged onset date, the ALJ Decision under review indicated Ms. Mack “is alleging disability since June 24, 2012.” (R. 1903). However, Ms. Mack's Motion-which also reverts to an “alleged onset date of June 24, 2012” (ECF No. 19 at 19 n. 31)-does not challenge that aspect of the ALJ Decision.

The ALJ asked Ms. Mack “[h]ow is your shoulder now, ” and Ms. Mack responded that it was “not better” despite undergoing two surgeries at the recommendation of her doctors. (R. 34, 37). In particular, she claimed to “still have the pain . . . when I lift my arm.” (R. 57). In addition to her left shoulder issues, Ms. Mack testified that she had “tarsal tunnel syndrome in [her] right foot” which caused pain under the bottom of her feet and kept her from standing. (R. 39). She also reported having “arthritis in both knees, ” unspecified “neck and back” issues, and that her “right shoulder [was] acting up.” (R. 40). To treat her pain, Ms. Mack said she had received cortisone shots in her right foot and in both knees, an epidural shot in her back, and that she was taking Ultracet⁴ and Vicodin. (R. 40-41). She testified that the medications cause her to “get sleepy.” (R. 41; see also R. 55 (testifying that she takes Ultracet daily and that it makes her “go to sleep”); R. 65 (testifying that she sleeps during the day “when I take my medicine”)). When asked to identify her treating physicians, Ms. Mack responded: “Dr. Bloom [sic] is treating for my knees[, ] . . . Dr. Gopal is treating me for my back and neck and Dr. Wilson is treatment [sic] me for my shoulder, my left shoulder.” (R. 41).

4 “Ultracet is a combination of two analgesics, tramadol and acetaminophen, that is used for the shortterm management of acute pain.” Milia v. Colvin, No. 11 Civ. 7792 (PAE) (MHD), 2014 WL 12771125, at *4 (S.D.N.Y. June 26, 2014). “Tramadol is an opiate analgesic used to relieve moderate to moderately severe pain.” McIntosh v. Berryhill, No. 17 Civ. 5403 (ER) (DF), 2018 WL 4376417, at *5 (S.D.N.Y. July 16, 2018).

Regarding the effects of her conditions on her “ability to function, ” Ms. Mack testified that she could walk “maybe a block-and-half” before having to stop due to pain in her knees and back. (R.49-50, 53). She also said she could stand comfortably and sit comfortably “[m]aybe for half-an-hour” at a time, and that she was unable to carry a gallon of milk. (R. 62). She had to stop playing sports with her children and had difficulty bathing herself. (R. 64).

An ME, Arthur Brovender, M.D., testified at the First ALJ Hearing. (R. 65-78). Dr. Brovender is a certified orthopedic surgeon (R. 65), though he had not treated a patient “[s]ince 2000.” (R. 71). He did not examine Ms. Mack, but rather, before the Hearing, reviewed most- though not all-of Ms. Mack's medical records. (R. 65). In particular, he had not reviewed certain records of Sireen Gopal, M.D.-specifically, progress notes covering the period August 14, 2013 to June 12, 2014-which the ALJ had received the day before. (R. 65; see R. 607-34)). The ALJ advised Dr. Brovender that “I may have to submit interrogatories to you” after the Hearing to allow him to address the newly-received records. (R. 65-66).

Dr. Brovender testified that, based on his review of her records, Ms. Mack was able to perform light work, subject to the limitation that “she should not have any overhead lifting with her left shoulder.” (R. 68). He acknowledged that Ms. Mack “has a decreased range of motion in the knees, ” but testified that this was “not impairing her function” and that she would not prevent her from “walking or standing for periods of time.” (R. 69). He opined that, of Ms. Mack's conditions, “[t]he only one that would objectively limit the function would be of the left shoulder.” (R. 68).

A VE, Helene J. Feldman, also testified at the First ALJ Hearing. (R. 78-92, 180). Ms. Feldman testified, inter alia, that there were no light-category jobs for an individual who could only lift up to ten pounds and sit or stand in 30-minute increments for four hours in an eight-hour day. (R. 91).

After the Hearing, on July 27, 2014, Dr. Brovender responded to a set of interrogatories from ALJ Grossman and provided a Medical Source Statement of Ability to Do Work-Related Activities (a “Medical Source Statement”). (R. 637-45). In his interrogatory responses, Dr. Brovender confirmed that he “reviewed the evidence” given to him by the Commissioner, and he specifically referenced Dr. Gopal's June 12, 2014 progress notes. (R. 637). In his Medical Source Statement, Dr. Brovender opined that, inter alia, Ms. Mack could “occasionally” lift and carry up to 20 pounds and reach overhead with her left hand. (R. 640, 642).

As noted supra at II.A, ALJ Grossman determined Ms. Mack was not disabled under the Act (R. 14-29). Specifically, ALJ Grossman found Ms. Mack had one severe impairment-chronic rotator cuff strain of the left shoulder-that did not meet or medically equal the severity of one of the listed impairments in the Act. (R. 19-20). (The impairments listed in 20 C.F.R. Appendix 1, Subpart P, Part 404 are known as the “Listings”). He also determined that she had the RFC “to perform light work as defined in 20 CFR 404.1567(b) except that [she] has been unable to perform any task requiring reaching overhead with her non-dominant left arm or hand.” (R. 19-22). After the SSA Appeals Council denied her request for review (R. 1-7), Ms. Mack filed a complaint in this Court. (See Mack v. Comm'r of Soc. Sec., No. 16 Civ. 4066 (WHP), ECF No. 1). The parties then agreed to remand the matter to the Commissioner for further administrative proceedings (R. 798-99), and, on February 15, 2017, the SSA Appeals Council vacated ALJ Grossman's decision and remanded the case for a new hearing. (R. 804-09). The Appeals Council determined, inter alia, that ALJ Grossman's decision did “not evaluate the severity, onset, or limiting effects of the [Ms. Mack]'s right shoulder impairment.” (R. 806).

2. The Second ALJ Hearing, decision, and Appeals Council order

On November 29, 2017, ALJ Schiro held the Second ALJ Hearing, at which Ms. Mack was again represented by counsel. (R 739-96). Ms. Mack recounted her medical history and functional limitations during the relevant time period. (R. 746-61). In particular, Ms. Mack confirmed that, as a result of her left shoulder impairment, she started “over compensating” with her right arm, leading to “problems with” and, ultimately, surgery on her right shoulder. (R. 747).

On February 15, 2018, ALJ Schiro found that Ms. Mack was not disabled under the Act through the DLI. (R. 651-72). ALJ Schiro did find that Ms. Mack had three severe impairments- left shoulder impairment, status post two surgeries; right shoulder impingement with subsequent surgery; and osteoarthritis of the knees-but that none satisfied one of the Listings. (R. 657). ALJ Schiro also made the following RFC determination:

After careful consideration of the entire record, I find that, through the date last insured, [Ms. Mack] had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except [she] can stand, walk or sit for a total of four hours a day in an eight hour workday, respectively. In addition, [Ms. Mack] can occasionally reach overhead and can frequently reach, handle, finger, feel and push/pull with the bilateral arms. Moreover, [she] can frequently operate foot controls; she cannot climb ladders, ropes or scaffolds; crawl or work around hazards--defined as moving mechanical parts or at unprotected heights. Lastly, [Ms. Mack] can occasionally climb ramps and stairs, balance, kneel, stoop, and crouch-yet she cannot have concentrated exposure to temperature extremes, wetness, humidity, fumes, odors, dusts, gasses or poor ventilation.

(R. 657-58).

On June 5, 2018, Ms. Mack challenged ALJ Schiro's decision in this Court. (See Mack v. Comm'r of Soc. Sec., No. 18 Civ. 4978 (SN), ECF No. 1). The parties subsequently agreed to remand the matter for further administrative proceedings. (R. 1990-91). By Order dated June 7, 2019, the Appeals Council remanded the case for rehearing. (R. 1992-97). The Appeals Council determined, inter alia, that “further analysis is necessary to determine whether [Ms. Mack]'s neck pain, hip pain, and plantar fasciitis constitute severe impairments, in accordance with 20 CFR 404.1509 and 404.1520).” (R. 1994). The Appeals Council also determined that the ALJ “inadequately evaluated [Ms. Mack]'s subjective complaints.” (R. 1994). The Appeals Council directed the ALJ to:

Update the evidence concerning [Ms. Mack]'s impairments in order to complete the administrative record in accordance with the regulatory standards regarding medical evidence (20 CFR 404.1512-1513). The additional evidence may include, if warranted medical source statements about what the claimant can still do despite the impairments.

Further evaluate [Ms. Mack]'s alleged symptoms and provide rationale in accordance with the disability regulations pertaining to evaluation of symptoms (20 CFR 404.1529).

Further, if necessary, obtain evidence from a medical expert related to the nature and severity of and functional limitations resulting from [Ms. Mack]'s impairments (20 CFR 404.1513a(b)(2)).

Give further consideration to [Ms. Mack]'s maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations (Social Security Ruling 968p). In so doing, evaluate the treating and nontreating source opinions pursuant to the provisions of (20 CFR 404.1527), and explain the weight given to such opinion evidence. As appropriate, the Administrative Law Judge may request the treating and nontreating sources provide additional evidence and/or further clarification of the opinions and medical source statement about what the claimant could still do despite the impairments through September 30, 2015 (20 CFR 404.1520b). The Administrative Law Judge may enlist the aid and cooperation of [Ms. Mack]'s representative in developing evidence from [her] treating sources.

If warranted by the expanded record, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on [Ms. Mack]'s occupational base (Social Security Ruling 83-14). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 004p).

(R. 1995).

3. The Third ALJ Hearing

On November 6, 2019, ALJ Schiro held the Third ALJ Hearing, at which Ms. Mack continued to be represented by counsel. (R. 1923-66). Ms. Mack again recounted her medical history and her functional limitations during the relevant time period. (R. 1932-44). In particular, Ms. Mack reiterated: i) her difficulties with tasks such as “[c]ooking, cleaning, laundry, [and] shopping” (R. 1936) and her inability to clean or dress herself without assistance (R. 1940); ii) that she “couldn't even lift a gallon of milk” (R. 1936) and could “sit no more than an hour” (R. 1937-38); and iii) that she “can use [her] hands, but not [her] shoulders” (R. 1938).

A VE, Steven Wood, also testified at the Third ALJ Hearing. (R. 1946-64). The ALJ asked the VE whether any jobs existed for an individual with the following hypothetical RFC:

The individual can occasionally reach overhead and can frequently reach, handle, finger, feel and push and pull with both arms, and the frequent would be in other directions. So occasional reaching overhead, frequently reaching in other directions, frequently handling, fingering, feeling, pushing and pulling with both arms. ...

The individual cannot climb ladders, ropes or scaffolds or work around hazards, which I'll define as moving mechanical parts or at unprotected heights.... The individual cannot crawl. The individual can occasionally climb ramps and stairs and occasionally balance, kneel, stoop and crouch. And finally for now, the individual cannot have concentrated exposure to temperature extremes, wetness humidity, fumes, odors, dust, gases and poor ventilation.

[The individual is limited to] standing and walking to a total of four hours and the balance of the eight-hour day would be sitting.

(R. 1948-50). The VE testified that an individual with these limitations would be able to perform three “light exertion level” positions: i) Order Caller; ii) Production Assembler; and iii) Information Clerk. (R. 1950). The VE confirmed that, as light-level positions, these jobs require lifting “20 pounds on an occasional basis” and “10 pounds frequently.” (R. 1960). The VE also confirmed that “somebody who would have difficulty lifting even ten pounds could not do these jobs, ” and that a person with that type of limitation “would be more characteristic in the sedentary range.” (R. 1961).

4. The ALJ Decision

On December 10, 2019, ALJ Schiro denied Ms. Mack's application for DIB benefits. (R. 1900-22). “After careful consideration of all of the evidence, ” ALJ Schiro held that Ms. Mack “was not under a disability within the meaning of the Social Security Act from June 24, 2012, through the date last insured.” (R. 1904).

ALJ Schiro followed the five-step disability determination process. As a preliminary matter, she found that Ms. Mack met the insured status requirements for her DIB application through September 30, 2015, i.e., the DLI. (R. 1906). At step one, the ALJ found that Ms. Mack had not engaged in substantial gainful activity during the period from her alleged Onset Date of June 24, 2012 through her DLI. (Id.) At step two, the ALJ now found that Ms. Mack had seven severe impairments: left shoulder impairment, status-post two surgeries; right shoulder impairment with subsequent surgery; osteoarthritis of the knees; degenerative changes of the cervical spine; plantar fasciitis; arthritis of the left hip; and obesity. (Id.)

At step three, ALJ Schiro found that Ms. Mack did not have an impairment or a combination of impairments that met or medically equaled the severity of one of the Listings. (R. 1906-07). First, the ALJ found that, “despite [her] history of a bilateral shoulder and knee impairment, a left hip impairment, and bilateral plantar fasciitis, ” these impairments did not meet or medically equal Listing 1.02 (major joint dysfunction). (R. 1906)⁵ Specifically, ALJ Schiro found that Ms. Mack “failed to show evidence of the following” symptoms contained in Listing 1.02:

5 The Court notes that Listing 1.02 was eliminated as of April 2, 2021. See 20 C.F.R. Appendix 1, Subpart P, Part 404. Because it was in effect at the time of the ALJ's Decision, however, it still controls for purposes of the Court's analysis. See Lowry v. Astrue, 474 Fed.Appx. 801, 805 n.2 (2d Cir. 2012) (applying Listing “in effect when the ALJ adjudicated [the challenged] disability claim”); Kiser v. Saul, 821 Fed.Appx. 211, 213 n.1 (4th Cir. 2020) (“the version of the listings in effect as of the date of the Commissioner's final decision controls.”); Distefano v. Berryhill, 363 F.Supp.3d 453, 466 n.5 (S.D.N.Y. 2019) (“Although the listings have since been revised, [courts] apply the listings that were in effect at the time the ALJ rendered his decision.”).

Major dysfunction of a joint(s) (due to any cause): characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With:

A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b;

Or

B. Involvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively, as defined in 1.00B2c.

(R. 1906 (quoting 20 C.F.R. Appendix 1, Subpart P, Part 404)). Second, the ALJ found that Ms. Mack's neck impairment did not meet or medically equal Listing 1.04 (disorders of the spine).⁶(R. 1906). Specifically, ALJ Schiro found that Ms. Mack had “not presented sufficient evidence that she experiences nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, and motor loss, sensory and reflex loss.” (R. 1906-07).

6 Listing 1.04 was also eliminated as of April 2, 2021. See 20 C.F.R. Appendix 1, Subpart P, Part 404. As discussed above, the Listing still controls for purposes of the Court's analysis since it was in effect at the time of the ALJ's Decision.

ALJ Schiro then assessed Ms. Mack's RFC as being able “to perform light work as defined in 20 CFR 404.1567(b), subject to several limitations. (R. 1907). Specifically, the ALJ found Ms. Mack: i) can only stand and walk for a total of four hours a day; ii) “can occasionally reach overhead and can frequently reach, handle, finger, feel, push, and pull with the bilateral arms.” iii) “can occasionally operate foot controls, ” but “cannot climb ladders, ropes, or scaffolds or work around hazards, ” which the ALJ defined as “moving mechanical parts or at unprotected heights;” iv) “cannot crawl, ” but “can occasionally climb ramps and stairs, and occasionally balance, kneel, stoop, and crouch;” and v) “cannot have concentrated exposure to temperature extremes, wetness, humidity, fumes, odors, dusts, gases, and poor ventilation.” (R. 1907).

In reaching her conclusions at step three, the ALJ considered the opinions of several treating and non-treating sources. (R. 1910-12). ALJ Schiro accorded “significant weight” to the opinions of Dr. Brovender and an unnamed ME who testified at the First ALJ Hearing-apparently not recognizing that the two were the same person. (R. 1910). Specifically, the ALJ credited Dr. Brovender's opinion in his July 2014 Medical Source Statement that Ms. Mack can: i) lift and carry up to 20 pounds occasionally; ii) stand and walk six hours, and sit eight hours, in an eight-hour day; iii) occasionally reach overhead with her left arm; iv) and frequently reach overhead with her right arm. (R. 1910 (citing R. 637-45)). Separately, the ALJ gave significant weight to the testimony of the unnamed ME-actually, Dr. Brovender-at the First ALJ Hearing that Ms. Mack could perform work at the light exertional level which involved no overhead reaching with the left arm. (R. 1910). The ALJ found that, “[a]lthough this latter medical expert did not have an opportunity to review additional evidence submitted by the claimant, his opinion and that of Dr. Brovender is generally consistent with the medical record for the period under consideration and takes into account the limitations resulting from the claimant's left shoulder impairment.” (R. 1910 (emphasis added)).

ALJ Schiro also accorded “significant weight” to the opinion of consultative examiner (“CE”) Sharon Revan, M.D., who performed a physical examination of Ms. Mack in January 2013.⁷(R. 1910-11; see R. 445-48). In particular, the ALJ credited, inter alia, Dr. Revan's opinion that Ms. Mack “had mild to moderate limitations performing personal grooming and activities of daily living, and mild limitations performing gross motor activities with the upper left extremity.” (R. 1911 (citing R. 445-48). ALJ Schiro concluded that “Dr. Revan's opinion is based on a thorough in-person examination of the claimant, is generally consistent with the contemporaneous medical record, and is consistent with the clinical findings elicited in the course of the examination.” (R. 1911).

7 ALJ Schiro incorrectly noted the date Dr. Revan's examination as July 2013. (R. 1910).

The ALJ similarly gave “significant weight” to the opinion of Yossef Blum, M.D., a treating physician, in a March 2013 questionnaire (“Dr. Blum's Questionnaire”) that Ms. Mack “can stand and walk four hours in an eight-hour workday, and can frequently reach, handle, and feel, and occasionally push and pull.” (R. 1911 (citing R. 494-98)). The ALJ noted that “Dr. Blum's opinion is based on a treating relationship with the claimant, is supported by the medical record, and accounts for the effects of the claimant's plantar fasciitis, left hip, and bilateral knee pain on her ability to stand and walk during the workday.” (R. 1911).

Conversely, ALJ Schiro accorded “little weight” to the June 2014⁸ opinion of Dr. Gopal,, another treating physician, in an RFC questionnaire (“Dr. Gopal's Questionnaire”) that Ms. Mack:

8 ALJ Schiro incorrectly noted the date of Dr. Gopal's opinion as September 2012. (R. 1911).

i) can lift ten pounds occasionally; ii) is limited to standing and walking less than one hour in a day; iii) can only occasionally reach overhead, handle and finger; and iv) is unable to perform most postural activities. (R. 1911 (citing R. 635-36)). The ALJ reasoned:

Although Dr. Gopal has served as the claimant's treating physician, her [sic] opinion is not adequately supported by the medical record. More specifically, multiple clinical examinations indicate that the claimant generally showed full or near full muscle strength in the upper extremities, full muscle strength in the lower extremities, and intact sensation throughout the body.

(R. 1911).

The ALJ also gave “little weight” to the September 2013 opinion of CE Mohammed Shuja, M.D., who opined that Ms. Mack is limited to lifting, pushing, and pulling no more than ten pounds. (R. 1911 (citing R. 547)). The ALJ concluded that Dr. Shuja's opinion “is inconsistent with objective and clinical findings, which indicate that despite undergoing surgery on the left shoulder during the period at issue, multiple post-operative physical examinations revealed largely mild findings, including only minor strength deficits in the upper left extremity.” (R. 1911).

ALJ Schiro gave “partial weight” to the July 2012 opinion of Barry Katzman, M.D., a nontreating physician who performed an independent medical examination (“IME”) of Ms. Mack as part of her application for Workers' Compensation benefits. (R. 1912 (citing R. 409)). Specifically, the ALJ partially credited Dr. Katzman's opinion that Ms. Mack “suffers from a moderate partial disability, but can return to work which involves lifting no more than 20 pounds.” (R. 1912 (citing R. 409)). The ALJ found that, “[a]lthough this opinion is vague and conclusory insofar as it indicates that the claimant could return to work, the lifting restrictions Dr. Katzman has identified are consistent with the claimant's history of a bilateral shoulder impairment and radiating neck pain” and “is based on an in-person examination of the claimant.” (R. 1912).

Finally, the ALJ accorded “little weight” to the March 2014 opinion of Arnold Wilson, M.D., another treating physician, that Ms. Mack is “totally disabled.” (R. 1912 (citing R. 464-65, 467, 481)). ALJ Schiro determined this opinion is “vague, conclusory, and fail[s] to provide a function-by-function assessment of the claimant's limitations.” (R. 1912).

At step four, the ALJ found Ms. Mack “has no past relevant work.” (R. 1912). At step five, she found that, prior to September 30, 2015, there were jobs in the national economy at the light exertion level that Ms. Mack could have performed considering her age, education, work experience, and RFC. (R. 1912-13). In making her finding at step five, the ALJ relied on the testimony of VE Wood. (R. 1913). Accordingly, the ALJ determined that Ms. Mack was not disabled “at any time from June 24, 2012, the alleged onset date, through September 30, 2015, the date last insured.” (R. 1913).

III. DISCUSSION

A. Applicable Legal Standards

1. Standard of Review

Under Rule 12(c), a party is entitled to judgment on the pleadings if she establishes that no material facts are in dispute and that she is entitled to judgment as a matter of law. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999); Morcelo v. Barnhart, No. 01 Civ. 743 (RCC) (FM), 2003 WL 470541, at *4 (S.D.N.Y. Jan. 21, 2003).

The Act provides that the Commissioner's findings “as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). A court may set aside the Commissioner's decision denying SSI benefits if it is not supported by substantial evidence or was based on legal error. See Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). Judicial review, therefore, involves two levels of inquiry. First, the Court must decide whether the ALJ applied the correct legal standard. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvellov. Barnhart, No. 05 Civ. 4254 (SCR) (MDF), 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). Second, the Court must decide whether the ALJ's decision was supported by substantial evidence. Id. “In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.” Longbardi v. Astrue, No. 07 Civ. 5952 (LAP), 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). 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.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal citations omitted). The substantial evidence test applies not only to the factual findings, but also to the inferences and conclusions drawn from those facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y. 1999). In determining whether the administrative record contains evidence to support the denial of claims, the Court must consider the whole record, and weigh all evidence to ensure that the ALJ evaluated the claim fairly. See, e.g., Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999). The Commissioner, not the Court, resolves evidentiary conflicts and appraises the credibility of witnesses, including the claimant. See, e.g., Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).

Disability-benefits proceedings are non-adversarial in nature, and therefore, the ALJ has an affirmative obligation to develop a complete administrative record, even when the claimant is represented by counsel. See Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009). To this end, the ALJ must make “every reasonable effort” to help an applicant get medical reports from her medical sources. 20 C.F.R. §§ 404.1512(b), 416.912(b). Ultimately, “[t]he record as a whole must be complete and detailed enough to allow the ALJ to determine the claimant's residual functional capacity.” Casino-Ortiz v. Astrue, No. 06 Civ. 155 (DAB) (JCF), 2007 WL 2745704, at *7 (S.D.N.Y. Sept. 21, 2007). When there are inconsistencies, gaps, or ambiguities in the record, the regulations give the ALJ options to collect evidence to resolve these issues, including re-contacting the treating physician, requesting additional records, arranging for a consultative examination, or seeking information from others. 20 C.F.R. §§ 404.1520b, 416.920b.

The Act authorizes a court, when reviewing decisions of the SSA, to order further proceedings: “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); see Butts v. Barnhart, 388 F.3d 377, 382 (2d Cir. 2004). If “‘there are gaps in the administrative record or the ALJ has applied an improper legal standard, '” the Court will remand the case for further development of the evidence or for more specific findings. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)). Remand is particularly appropriate where further findings or explanation will clarify the rationale for the ALJ's decision. Pratts, 94 F.3d at 39. If, however, the reviewing court concludes that an ALJ's determination to deny benefits was not supported by substantial evidence, a remand solely for calculation of benefits may be appropriate. See, e.g., Butts, 388 F.3d at 386 (discussing Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000)).

2. Standards for benefit eligibility

For purposes of DIB benefits, one is “disabled” within the meaning of the Act, and thus entitled to such benefits, when she 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 twelve months.” 42 U.S.C. § 1382c(3)(A). The Act also requires that the impairment be “of such severity that [the claimant] 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.” 42 U.S.C. § 1382c(3)(B). In reviewing a claim of disability, the Commissioner must consider: “(1) objective medical facts; (2) diagnoses or medical opinions based on those facts; (3) subjective evidence of pain and disability testified to by claimant and other witnesses; and (4) the claimant's background, age, and experience.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988).

Under the applicable regulations, an alleged disability is evaluated under the sequential five-step process set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v) and 20 C.F.R. § 416.920(a)(4)(i)-(v). The Second Circuit has described the process as follows:

First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on the medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to

perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the Claimant could perform.

Bush v. Shalala, 94 F.3d 40, 44-45 (2d Cir. 1996) (quoting Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983)).

At the first four steps, the claimant bears the burden of proof. At the fifth step, the burden shifts to the Commissioner to demonstrate that there are jobs in the national economy that the claimant can perform. See, e.g., Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). In meeting the burden of proof at the fifth step, the Commissioner can usually rely on the Medical-Vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, known as “the Grid.” Zorilla v. Chater, 915 F.Supp. 662, 666-67 (S.D.N.Y. 1996).

3. Treating Physician Rule ⁹

9 The Court notes that “[i]n March 2017, the Social Security Administration published regulations that effectively abolished the Treating Physician Rule for claims filed on or after March 27, 2017.” Dorta v. Saul, No. 19 Civ. 2215 (JGK) (RWL), 2020 WL 6269833, at *3 n.8 (S.D.N.Y. Oct. 26, 2020). Under the new regulations, the ALJ “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Because Ms. Mack filed her claim in 2012 (R. 198), the Treating Physician Rule applies.

The regulations require the ALJ to give “controlling weight” to “the opinion of a claimant's treating physician as to the nature and severity of the impairment . . . so long as it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record” (the “Treating Physician Rule”). Burgess, 537 F.3d at 128 (internal citation omitted); accord Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); Correale-Englehart v. Astrue, 687 F.Supp.2d 396, 426 (S.D.N.Y. 2010). “This preference is generally justified because treating sources are likely to be ‘the medical professionals most able to provide a detailed, longitudinal picture' of a plaintiff's medical impairments and offer a unique perspective that the medical tests and SSA consultants are unable to obtain or communicate.” Correale-Engelhart, 687 F.Supp.2d at 426 (quoting 20 C.F.R. § 416.927([c])(2)); see 20 C.F.R. § 404.1527.

If the ALJ determines that a treating physician's opinion is not controlling, he or she is nevertheless required to consider the following factors in determining the weight to be given to that opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence provided to support the treating physician's opinion; (4) the consistency of the opinion with the record as a whole; (5) whether the opinion is from a specialist; and (6) other factors brought to the Commissioner's attention that tend to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c); 416.927(c). The ALJ must give “good reasons” for not crediting the plaintiff's treating physician. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (explaining that Appeals Council had “an obligation to explain” the weight it gave to the opinions of the nontreating physicians). After considering these factors, the ALJ must fully set forth his reasons for the weight assigned to the treating physician's opinion. Burgess, 537 F.3d at 129.

While the ultimate issue of disability is reserved to the Commissioner, the regulations make clear that opinions from one-time examining sources that conflict with treating source opinions are generally given less weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). See also Selian v. Astrue, 708 F.3d 409, 419 (2d Cir. 2013) (“ALJs should not rely heavily on the findings of consultative physicians after a single examination.”); Cabreja v. Colvin, No. 14 Civ. 4658 (VSB), 2015 WL 6503824, at *30 (S.D.N.Y. Oct. 27, 2015) (explaining that opinions of one-time consultants should not overrule those provided by the treating medical sources unless there are “serious errors” in treating sources' opinions). Failing to apply proper weight to a treating physician's opinion is reversible error. Greek v. Colvin, 802 F.3d 370, 376 (2d Cir. 2015).

B. Evaluation of the ALJ's Decision

Ms. Mack asserts four separate but related challenges the ALJ's Decision: (1) the ALJ failed to apply the Treating Physician Rule; (2) the ALJ did not consider the side effects of her medications; (3) the ALJ's RFC finding was not supported by substantial evidence; and (4) the ALJ erred in relying on the VE's testimony. (ECF No. 19 at 26-39). The Commissioner argues that the ALJ Decision is supported by substantial evidence and should be affirmed. (ECF No. 22).

The Court finds that the ALJ failed to properly weigh the opinion evidence of Ms. Mack's treating physicians, Dr. Gopal, Dr. Blum, and Dr. Wilson, and that, as a result of this failure, her RFC determination was necessarily flawed. The ALJ also erred in her RFC determination by not considering the side effects of Ms. Mack's medications. The Court respectfully recommends that these errors require remand for further proceedings, which may result in a new RFC determination, and accordingly, the Court does not reach Ms. Mack's additional argument concerning the ALJ's reliance on the VE's testimony.

1. Weight of the medical opinion evidence

a. Dr. Gopal

Ms. Mack argues that the ALJ erred by giving “little weight” to Dr. Gopal's opinion in his Questionnaire that Ms. Mack can occasionally lift up to ten pounds and can stand or sit for less than an hour in an eight-hour workday. (ECF No. 19 at 29). She claims that “Dr. Gopal's opinions were amply supported by his own records and those of other treating sources.” (Id. at 29-30).

Ms. Mack also argues that the ALJ erred by failing to acknowledge Dr. Gopal's specialization in pain management. (Id. at 31). Finally, she argues it was error for the ALJ to discount Dr. Gopal's opinion due to his purportedly “excessive reliance” on Ms. Mack's subjective complaints. (Id.)

The Commissioner responds that the ALJ gave “good reasons” to give Dr. Gopal's opinion less than controlling weight because it “was contradicted by clinical exam findings showing good muscle strength and intact sensation, and appeared to rely excessively on [Ms. Mack's] subjective allegations about her limitations.” (ECF No. 22 at 14-15).

The Court agrees with Ms. Mack that the ALJ failed to properly weigh Dr. Gopal's opinion, which was based on his longitudinal treatment of Ms. Mack and was supported by his treatment records. Dr. Gopal is a “pain management” specialist (R. 636) who began treating Ms. Mack in September of 2012. (R. 399). As his treatment notes reflect, between then and June 24, 2014, when he issued his Questionnaire, Dr. Gopal examined Ms. Mack 20 times. (R. 399-400, 453-63, 607-34). His notes from the initial September 2012 visit show that Ms. Mack complained of left shoulder pain, which she described as “sharp” and “throbbing.” (R. 363). As the ALJ Decision reflected, Dr. Gopal's examination of Ms. Mack's shoulders revealed tenderness and range-of-motion limitations, but that she ambulated with a normal gait. (R. 1908 (citing R. 400)). The ALJ Decision did not reflect, however, that Dr. Gopal also noted positive Hawkins¹⁰ and drop-arm¹¹tests in the left shoulder or that he assessed, inter alia, adhesive capsulitis of the shoulder and rotator cuff syndrome. (R. 400). At a follow-up visit in November 2012, Dr. Gopal made a similar assessment and prescribed Ultracet. (R. 462-63). He explained to Ms. Mack the possible side effects of the medication, including “drowsiness” and “sedation.” (R. 463).

10 “The Hawkins test assesses rotator cuff tendonitis or subacromial impingement.” Abualteen v. Saul, No. 19 Civ. 2637 (DF), 2020 WL 5659619, at *4 n.23 (S.D.N.Y. Sept. 23, 2020).

11 “The drop arm test assesses the supraspinatus.” Castorina v. Saul, No. 19 Civ. 991 (AJN) (BCM), 2020 WL 6688961, at *7 (S.D.N.Y. Aug. 24, 2020).

As the ALJ Decision also reflected, Ms. Mack continued to complain of left shoulder pain at a follow-up visit with Dr. Gopal in December 2012. (R. 1908 (citing R. 460)). While ALJ Schiro noted that Ms. Mack reported a 50% reduction in pain following a recent cortisone shot, (id.), the ALJ Decision did not acknowledge that Dr. Gopal's ultimate assessment of Ms. Mack's shoulder impairment remained unchanged and that he refilled her Ultracet prescription. (R. 460). Indeed, Dr. Gopal's clinical records show that his assessment of Ms. Mack's left shoulder impairment remained unchanged through at least July 2013. (R. 399-400, 453-63).

Dr. Gopal's records also reflect his longitudinal treatment of Ms. Mack's neck impairment between April 2013 and June 2014. At an April 4, 2013 evaluation, Dr. Gopal diagnosed a “cervical-neck disorder” in addition to her existing shoulder impairment. (R. 456). Notes from follow-up evaluations on April 25, 2013 and July 18, 2013 show identical assessments. (R. 45355). In August 2013, Dr. Gopal found a reduced range of motion in Ms. Mack's neck, and he assessed cervical radiculitis, cervical spondylosis without myelopathy, and pain in the thoracic spine. (R. 633). He assessed these same neck impairments at twelve subsequent evaluations between September 2013 and June 2014. (R. 607-31). During that time, Dr. Gopal continued to note limited range of motion, and he continued to prescribe Ultracet as necessary. (Id.) He also administered steroid injections and at least one epidural to treat Ms. Mack's pain. (R. 616-19, 624-25).

Dr. Gopal's opinions in his June 2014 Questionnaire are consistent with this continuous treatment history. The Questionnaire reflects his diagnoses of, inter alia, Ms. Mack's cervical radiculitis, cervical spondylosis without myelopathy, and pain in the thoracic spine. (R. 635). Following nearly two years of treatment and 20 medical examinations, Dr. Gopal opined that Ms. Mack was limited to standing or sitting for less than an hour and to occasionally lifting less than ten pounds. (Id.).

Contrary to ALJ Schiro's conclusion, Dr. Gopal's opinions were also generally consistent with other substantial evidence in the Record. For example, Dr. Wilson, a treating orthopedic surgeon, similarly assessed Ms. Mack's left shoulder impairment and resulting physical limitations. Dr. Wilson's treatment records show that, between December 2012 and September 30, 2015 (Ms. Mack's DLI), he examined Ms. Mack 28 times (R. 946-75) and that, in May 2013, he performed surgery on Ms. Mack's left shoulder. (R. 982-83). At an evaluation in December 2012, Dr. Wilson observed “diffuse pain” and “marked' range of motion restrictions in Ms. Mack's left shoulder, and “persistent impingement of [the] left shoulder with signs of adhesive capsulitis.” (R. 482). Dr. Wilson made similar findings at a follow-up exam in January 2013. (R. 481). He noted Ms. Mack showed a “positive Hawkins sign” and that “[m]ost of her pain is . . . to palpation as well as with movement.” (R. 481). At an examination in March 2013, Dr. Wilson found Ms. Mack “continue[d] to exhibit typical signs of impingement and has painful range of motion about her left shoulder.” (R. 479). He noted that an “MRI of the left shoulder show[ed] tendinopathy about the supraspinatus tendon and also showed findings consistent with rotator cuff impingement.” (R. 479). He recommended “repeat arthroscopic surgery and decompression.” (R. 479). A month later, in April 2013, Dr. Wilson again noted decreased range of motion and a positive Hawkins test. (R. 478). He also noted “tenderness with neck and shoulder motions along the left trapezius muscle, both to palpation as well as with motion.” (R. 478). Dr. Wilson performed surgery on Ms. Mack's shoulder on May 20, 2013. (R. 449-50). Between June 2013 and June 2014 (when Dr. Gopal completed his Questionnaire), Dr. Wilson examined Ms. Mack twelve times and noted persisting complaints of bilateral shoulder pain and restricted range of motion. (R. 956-68).

In April 2014, Dr. Wilson completed a “Treating Physician's Wellness Plan Report (“Dr. Wilson's 2014 Report”), in which he noted that Ms. Mack had limited range of motion in her left shoulder. (R. 563-64). Consistent with Dr. Gopal's June 2014 Questionnaire, Dr. Wilson opined that Ms. Mack had “[l]imited used of [her] shoulder” and that she was specifically limited to “[n]o repetitive overhead motion” and “[n]o lifting over 10 lbs.” (R. 564).

Accordingly, under the Treating Physician Rule, Dr. Gopal's opinions were likely worthy of controlling weight, and the ALJ was required to explicitly consider the factors set forth in 20 C.F.R. §§ 404.1527(c) (known as the “Burgess factors”) in giving them less weight or to otherwise provide “good reasons” for doing so. Ferraro v. Saul, 806 Fed.Appx. 13, 14-15 (2d Cir. 2020) (summary order). “[T]he ‘failure to explicitly apply the Burgess factors when assigning weight [to a treating physician's opinion] is a procedural error,' and unless the ALJ has ‘otherwise provided good reasons for its weight assignment, [the Court will be] unable to conclude that the error was harmless and [will] consequently remand for the ALJ to comprehensively set forth its reasons.'” Id. (quoting Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019)).

In deciding to assign “little weight” to Dr. Gopal's opinion, the ALJ reasoned:

Although Dr. Gopal has served as the claimant's treating physician, her [sic] opinion is not adequately supported by the medical record. More specifically, multiple clinical examinations indicate that the claimant generally showed full or near full muscle strength in the upper extremities, full muscle strength in the lower extremities, and intact sensation throughout the body. In short, the

exertional limitations Dr. Gopal has identified appear to place excessive reliance on [Ms. Mack]'s subjective allegations.

(R. 1911).

Initially, ALJ Schiro failed to satisfy her obligation under 20 C.F.R. §§ 404.1527(c) to explicitly consider the Burgess factors. For example, she failed to consider “the frequency, length, nature and extent of treatment, ” which was significant given Dr. Dr. Gopal's lengthy treating relationship with Ms. Mack involving regular appointments. See Ferraro, 806 Fed.Appx. at 15. Although ALJ Schiro noted that “Dr. Gopal has served as [Ms. Mack]'s treating physician” (R. 1911), “merely acknowledging the existence of treating relationships is not the same as explicitly considering [this factor]”). Ferraro, 806 Fed.Appx. at 15. ALJ Schiro “also erred by not explicitly acknowledging Dr. [Gopal]'s professional specialization.” Newell v. Saul, No. 19 Civ. 10831 (JLC), 2021 WL 608991, at *19 (S.D.N.Y. Feb. 17, 2021) (collecting cases). The ALJ's failure to explicitly consider these factors was “procedural error” that, absent “good reasons” for the weight assessment, warrants remand. Id. at 14; see Roman v. Saul, No. 19 Civ. 3688 (JLC), 2020 WL 4917619, at *19 (S.D.N.Y. Aug. 21, 2020) (finding error in consideration of Burgess factors where the ALJ “neither identified [a treating physician] as a pain management specialist nor discussed his specialization.”).

Having reviewed the Record, the Court finds that ALJ Schiro also failed to articulate good reasons for discounting Dr. Gopal's opinions. While the ALJ concluded that the opinions were not adequately supported by the medical record, ALJ Schiro did not explain how evidence of “full or near full muscle strength in the upper extremities, full muscle strength in the lower extremities, and intact sensation throughout the body” would contradict Dr. Gopal's opinions as to Ms. Mack's standing, sitting, or lifting limitations. (R. 1911). Nothing in Dr. Gopal's Questionnaire indicates that he based his limitation assessments on Ms. Mack's muscle or sensory strength. To the contrary, Dr. Gopal's treatment notes suggest these limitations reflected the range-of-motion restrictions and pain caused by Ms. Mack's shoulder and neck impairments.

Nor did the ALJ's conclusion that Dr. Gopal “appear[ed] to place excessive reliance” on Ms. Mack's subjective allegations constitute a good reason not to accord his opinion controlling weight. (R. 1911). As an initial matter, if the ALJ could conclude only that Dr. Gopal “appear[ed]” to excessively rely on Ms. Mack's complaints, she then had a duty to seek clarification from Dr. Gopal, and the failure to do so was error. McGill v. Saul, No. 18 Civ. 6430 (PKC), 2020 WL 729774, at *4 (E.D.N.Y. Feb. 13, 2020) (“[S]ince the ALJ deemed the treating physicians' opinions lacking in support, the ALJ should have sought clarification from them regarding the deficiencies she perceived in their opinions”); Correale-Englehart, 687 F.Supp.2d at 428 (“[I]f a physician's report is believed to be insufficiently explained, lacking in support, or inconsistent with the physician's other reports, the ALJ must seek clarification and additional information from the physician, as needed, to fill any clear gaps before rejecting the doctor's opinion.”). In any event, “[t]he fact that [a treating physician] . . . also relie[s] on [a patient]'s subjective complaints hardly undermines [the physician's] opinion as to [the patient's] functional limitations, as a patient's report of complaints, or history, is an essential diagnostic tool.” Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) (citation and alterations omitted). Accordingly, “reliance on [a] Plaintiff's subjective complaints is not a valid reason for rejecting [a physician]'s medical opinion.” Mahon v. Colvin, No. 15 Civ. 398 (FPG), 2016 WL 3681466, at *4 (W.D.N.Y. July 6, 2016); see Avrutskaya v. Comm'r of Soc. Sec., No. 18 Civ. 6267 (PKC), 2020 WL 1550252, at *5 (E.D.N.Y. Mar. 31, 2020) (“Here, it appears that the ALJ declined to give [a treating physician]'s assessment controlling weight, as required by the treating physician rule, because of [the physician]'s reliance on Plaintiff's subjective complaints. This is error.”); Austin v. Comm'r of Soc. Sec., No. 18 Civ. 331 (PKC), 2019 WL 4751808, at *6 (E.D.N.Y. Sept. 30, 2019) (finding ALJ erred by giving “only partial weight” to treating physician's opinion based on its “excessive reliance” on the plaintiff's subjective allegations.). Thus, even if Dr. Gopal did rely excessively on Ms. Mack's subjective complaints, that alone was not a sufficient basis to give his opinions less than controlling weight.

To the extent the ALJ discounted Dr. Gopal's opinions because they were contradicted by the opinions of ME Dr. Brovender (who did not examine Ms. Mack (R. 65)), CE Dr. Revan (who examined Ms. Mack in January 2013, over a year before Dr. Gopal issued his Questionnaire and before he diagnosed Ms. Mack's neck impairment (R. 445-48)), or Dr. Katzman (who performed an IME of Ms. Mack on July 17, 2012-less than a month after the Onset Date and nearly two years before Dr. Gopal issued his Questionnaire-as part of her application for Workers' Compensation benefits (R. 407-10)), the Court finds that this, too, was error.¹² “A corollary to the treating physician rule is that the opinion of a non-examining doctor by itself cannot constitute the contrary substantial evidence required to override the treating physician's diagnosis.” Hidalgo v. Bowen, 822 F.2d 294, 297 (2d Cir. 1987); see 20 C.F.R. § 416.927(c)(2) (opinions from one-time examining sources that conflict with treating source opinions are generally given less weight). Indeed, the Second Circuit has “frequently ‘cautioned that ALJs should not rely heavily on the findings of consultative physicians after a single examination.'” Estrella, 925 F.3d at 98 (quoting Selian, 708 F.3d at 419). Thus, even if these non-treating physicians did contradict Dr. Gopal, their opinions alone were not substantial evidence sufficient to give less than controlling weight to a treating source.

12 Ms. Mack also argues that the ALJ erred by giving the opinions of these non-treating physicians greater weight than she gave Ms. Mack's treating physicians. (ECF No. 19 at 28-30). However, “[b]ecause the Court finds that the ALJ erred in applying the treating physician rule, it need not reach the question of whether the ALJ erred in relying more heavily on the opinions from [these non-treating] sources.” Mortise v. Astrue, 713 F.Supp.2d 111, 123-24 (N.D.N.Y. 2010).

Finally, the Court cannot conclude that the ALJ's error was harmless, as Dr. Gopal's opinions completely undermine the ALJ's RFC determination that Ms. Mack is capable of engaging in “light work”. Dr. Gopal opined that Ms. Mack can “occasionally” lift up to ten pounds, “never” lift more than ten pounds, and “never” push or pull. (R. 635-36). In direct contradiction to the ALJ's RFC determination, these limitations preclude Ms. Mack from engaging in “light work, ” which requires lifting up to “20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). “Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” (Id.) “To be considered capable of performing a full or wide range of light work, [one] must have the ability to do substantially all of these activities.” (Id.) Although the ALJ's RFC determination incorporated various exertional limitations, which she said “accommodate [Ms. Mack]'s subjective limitations and are supported by, and consistent with, the objective medical findings, ” none accounts for Dr. Gopal's opinions. (R. 1912). Thus, the ALJ's decision to accord “little weight” to Dr. Gopal's opinions was error and warrants remand.

b. Dr. Blum

Ms. Mack claims the ALJ erred by giving significant weight to Dr. Blum's opinions in his Questionnaire that she could stand or walk for four hours a day and frequently reach, while failing to incorporate Dr. Blum's opinion as to additional functional limitations-offered in the same Questionnaire-that she could only stand or walk continuously for 30 minutes at a time and could only occasionally lift up to ten pounds. (ECF No. 19 at 27-29). Specifically, Ms. Mack argues “[a]n ALJ should not formulate an RFC that conflicts with portions of a medical source statement to which he accords weight without explaining the inconsistency.” (Id. at 27). She also argues “the ALJ should have given Dr. Blum's opinion of Ms. Mack's functional limitations due to her hip and knee impairments controlling or great weight” because he “was a treating physician, a specialist in orthopedic surgery, had a long treating relationship with Ms. Mack, and his opinion was well supported by the record.” (Id. at 28 (citing 20 C.F.R. § 404.1527)).

The Commissioner responds that the ALJ was not required to adopt Dr. Blum's opinion in its entirety and was entitled to adopt only those limitations supported by the evidence. (ECF No. 22 at 12). The Commissioner contends that “the ALJ's overall discussion showed ‘good reasons' not to accept” Dr. Blum's lifting and continuous walking or standing limitations, which, the Commissioner argues, were contradicted by medical evidence and the opinions of two nontreating physicians. (Id. at 13).

The Court agrees with Ms. Mack that the ALJ's failure to explain her reason for disregarding portions of Dr. Blum's Questionnaire while using others to support her findings constitutes legal error. While “it is not necessarily improper for an ALJ to weight different portions of an expert medical opinion differently . . . the ALJ must provide sound reasons for doing so.” Annabi v. Berryhill, No. 16 Civ. 9057 (BCM), 2018 WL 1609271, at *19 (S.D.N.Y. Mar. 30, 2018); Artinian v. Berryhill, No. 16 Civ. 4404 (ADS), 2018 WL 401186, at *8 (E.D.N.Y. Jan. 12, 2018) (“[W]hen the ALJ uses a portion of a given opinion to support a finding, while rejecting another portion of that opinion, the ALJ must have a sound reason for the discrepancy.”). “If the governing principle appears to be simply the degree to which that portion of the opinion supports the ALJ's personal view, it will be difficult for the reviewing court to escape the conclusion that the result smacks of ‘cherry picking,' which in turn suggests a serious misreading of evidence, or failure to comply with the requirement that all evidence be taken into account, or both.” Annabi, 2018 WL 1609271, at *16 (citations omitted). “Federal courts reviewing administrative social security decisions decry ‘cherry picking' of relevance evidence, which may be defined as inappropriately crediting evidence that supports administrative conclusions while disregarding differing evidence from the same source.” Artinian v. Berryhill, No. 16 Civ. 4404 (ADS), 2018 WL 401186, at *8 (E.D.N.Y. Jan. 12, 2018). “‘Cherry picked' decisions do not satisfy substantial evidence standards because reviewing courts cannot conclude, under such circumstances, that adverse findings were based on evidence reasonable minds might accept as adequate to support a conclusion.” Id. (quoting Strange v. Comm'r of Soc. Sec., No. 13 Civ. 527 (GLS) (ESH), 2014 WL 4637093, at *9 (N.D.N.Y. Sept. 16, 2014)).

Here, the ALJ not only failed to provide “sound reasons” for disregarding Dr. Blum's opinions as to Ms. Mack's lifting and continuous walking or standing limitations; she failed to acknowledge those opinions at all. Without even a reference to these opinions, which directly contradict the ALJ's RFC determination, the Court cannot escape the conclusion that the ALJ engaged in “cherry picking” and committed “a serious misreading of evidence, . . . [a] failure to comply with the requirement that all evidence be taken into account, or both.” Annabi, 2018 WL 1609271, at *16. The ALJ's error is particularly significant given Dr. Blum's status as one of Ms. Mack's treating physicians. Ritchie v. Saul, No. 19 Civ. 1378 (DF), 2020 WL 5819552, at *18 (S.D.N.Y. Sept. 29, 2020) (“Even beyond any cherry picking, however, the ALJ's decision to accord different weight to the different portions of [the treating physician]'s opinion calls into question the ALJ's application of the ‘treating physician rule.'”).

Contrary to the Commissioner's argument, the portions of Dr. Blum's opinions that the ALJ failed to address were not contradicted by medical evidence. The lifting and continuous walking or standing limitations that Dr. Blum assessed align with Dr. Gopal's findings. (See R. 635-36). As discussed supra at III.B.l.a, those findings were supported by longitudinal treatment records, and the ALJ failed to articulate good reasons for discounting them.

Accordingly, the ALJ's failure to provide sound reasons for disregarding portions of Dr. Blum's opinion while relying on others warrants remand. See Romero v. Saul, No. 18 Civ. 10460 (NSR) (JCM), 2020 WL 295l068, at *l6 (S.D.N.Y. Feb. 3, 2020) (remanding where “the ALJ failed to explain his reason for rejecting portions of the consultative examiners' opinions while using other parts of their opinions to support his findings.”), adopted by, 2020 WL 1189301 (S.D.N.Y. Mar. 11, 2020).

c. Dr. Wilson

The ALJ gave “little weight” to Dr. Wilson's March 2013 opinion that Ms. Mack was “totally disabled, ” finding that it was “vague, conclusory, and fail[ed] to provide a function-by-function assessment of [Ms. Mack]'s limitations.” (R. 1912).

Ms. Mack claims this was error. (ECF No. 32-33). In particular, she argues the ALJ failed to consider specific functional limitations assessed by Dr. Wilson in other portions of his treatment records. (Id.) She argues that, since “the clinical findings clearly supported Dr. Wilson's opinion and he was a treating specialist in his field, the ALJ should have given it controlling weight.” (Id. at 33).

The Commissioner responds that that, in finding that the opinion was “vague, conclusory, and fail[ed] to provide a function-by-function assessment of [Ms. Mack]'s limitations, ” the ALJ provided “good reasons” for discounting it. (ECF No. 22 at 15-17).

The Court agrees with Ms. Mack that the ALJ failed to properly weigh Dr. Wilson's opinion. “Some kinds of findings-including the ultimate finding of whether a claimant is disabled and cannot work-are ‘reserved to the Commissioner, '” and a “treating physician's statement that the claimant is disabled cannot itself be determinative.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citing 20 C.F.R. § 404.1527(e)(1)). In weighing a treating physician's opinion that a claimant is disabled, however, the ALJ still must “expressly consider[] the rest of [the physician's] treatment records by applying the Burgess factors rather than reject the entire opinion[].” Heschke v. Comm'r of Soc. Sec., No. 18 Civ. 196, 2020 WL 3989581, at *4 (W.D.N.Y. July 15, 2020) (citing Estrella, 925 F.3d at 96). Indeed, a “doctor's failure to include individualized support for the findings in his evaluation ‘does not mean that such support does not exist.'” Rodriguez v. Berryhill, No. 16 Civ. 9951 (JPO), 2018 WL 1508739, at *4 (S.D.N.Y. Mar. 27, 2018) (quoting Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998)). “Moreover, ‘where the import of the physician's opinions is ambiguous . . . the ALJ has a duty to seek clarification.'” Id. (quoting Barbera v. Barnhart, 151 Fed.Appx. 31, 33 (2d Cir. 2005).

In according “little weight” to Dr. Wilson's opinion that Ms. Mack is “totally disabled, ” the ALJ failed to expressly consider the rest of Dr. Wilson's treatment records using the Burgess factors. As discussed supra at III.B.1.a, between December 2012 and Ms. Mack's DLI, Dr. Wilson examined her 28 times and operated on her once. (R. 946-75, 982-83). During that time, Dr. Wilson noted continued pain and restricted range of motion in her left shoulder. (Id.) In April 2014, Dr. Wilson specifically opined that Ms. Mack had “[l]imited used of [her] shoulder” and that she was specifically limited to “[n]o repetitive overhead motion” and “[n]o lifting over 10 lbs.” (R. 564). The ALJ should have explicitly considered these treatment records and limitation findings, which align with Dr. Gopal's opinions (R. 635-36), before deciding to discount Dr. Wilson's opinion as to Ms. Mack's disability. The ALJ's failure to do so was error and requires remand.

* * *

Accordingly, the Court finds that the ALJ failed to apply the Treating Physician Rule, and respectfully recommends that remand is warranted.

2. The ALJ's RFC determination

Ms. Mack claims the ALJ's conclusion that she could perform “light work” was not supported by substantial evidence. (ECF No. 19 at 36-38). In particular, Ms. Mack argues that Record evidence, including the opinions of her treating physicians, shows that she suffered from limitations that would preclude light work. (Id.) She also claims that the RFC did not “account for [the] functional impact of [her] side effects from medication, such as dizziness, or her significant pain.” (Id. at 38; see id. at 35-36 (arguing that the ALJ erred by failing to consider the side effects of her medications or the evidence that her medications made her “sleepy.”).

The Commissioner argues that substantial evidence supported the ALJ's RFC finding. (ECF No. 22 at 21-27). Specifically, the Commissioner argues that the ALJ's RFC determination was based on an evaluation of “Plaintiff's testimony, the medical records, objective imaging, clinical exam findings, and medical opinion.” (Id. at 22). Regarding the ALJ's failure to consider the side effects of Ms. Mack's medication, the Commissioner concedes that “the ALJ did not specifically mention [Ms. Mack's] medication side effect of drowsiness.” (ECF No. 22 at 25). The Commissioner notes, however, that “the ALJ acknowledged [Ms. Mack's] allegation that she experienced sleep disturbance” and that the “ALJ's RFC finding accounted for any such sleep disturbance and resulting drowsiness by precluding Plaintiff from working around hazards, such as unprotected heights or moving mechanical parts.” (Id.)

Because, for the reasons set forth above, the ALJ failed to apply the Treating Physician Rule, her RFC determination is necessarily flawed and cannot be found to have been supported by substantial evidence. See Dubois v. Saul, No. 18 Civ. 2415 (DF), 2019 WL 5287942, at *25 (S.D.N.Y. Sept. 23, 2019) (“The ALJ's failure to give adequate consideration to [a treating physician]'s opinions and Plaintiff's testimony necessarily infected his determination of Plaintiff's RFC, such that the determination cannot be found to have been supported by substantial evidence.”); Sanchez v. Colvin, No. 12 Civ. 6203 (CM) (RLE), 2015 WL 4510031, at *17 (S.D.N.Y. June 1, 2015) (“Because the ALJ violated the treating physician's rule[, ] his determination of [the plaintiff]'s RFC was not supported by substantial evidence.”); Martin v. Colvin, No. 13 Civ 2827 (VSB) (RLE), 2014 WL 4467709, at *16 (S.D.N.Y. Sept. 10, 2014) (same); Morse v. Astrue, No. 06 Civ. 1417 (LEK) (VEB), 2009 WL 1322301, at *7 (N.D.N.Y. May 12, 2009) (finding that, because the court had “already determined that the treating physician's opinion was not properly assessed, ” the ALJ's RFC determination was “necessarily flawed”). On remand, the ALJ will have to reconsider Ms. Mack's RFC in light of the weight granted to the opinions of her treating physicians following the proper application of the Treating Physician Rule.

Moreover, the Court agrees with Ms. Mack that the ALJ's failure to expressly consider the side effects of her medications in her RFC determination was error. “In determining a claimant's entitlement to disability, an ALJ must consider medications taken, including their dosage and side effects.” Louis v. Berryhill, No. 17 Civ. 5975 (PGG) (RWL), 2018 WL 8545833, at *16 (S.D.N.Y. Oct. 11, 2018) (citing SSR 16-3p, 2017 WL 5180304, at *7-8 (S.S.A. Oct. 25, 2017) (explaining that an ALJ is required to consider “type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms.”)). “An ALJ's failure to consider a claimant's subjective reports of her symptoms, including the side effects she experiences as a result of her medications, is grounds for remand.” Plaza v. Comm'r of Soc. Sec., No. 19 Civ. 3853 (DF), 2020 WL 6135716, at *23 (S.D.N.Y. Oct. 16, 2020) (finding that ALJ erred in formulating RFC by failing to consider reported side effects of medication including drowsiness and lack of concentration).

The Record reflects that, between the Onset Date and the DLI, Ms. Mack took several medications, including Ultracet, to manage her pain. (See, e.g., R. 460-63, 607-34; see also ECF No. 19 at 35). Ms. Mack testified that her pain medications caused her to “get sleepy.” (R. 41; see also R. 55 (testifying that she takes Ultracet daily and that it makes her “go to sleep”); R. 65 (testifying that she sleeps during the day “when I take my medicine”)). This testimony was consistent with Dr. Gopal's explanation to Ms. Mack that “drowsiness” and “sedation” were among the possible side effects of her medication. (R. 463).

Despite this testimony and some Record evidence to support it, the ALJ Decision did not even acknowledge-much less consider-these reported side effects. While the Commissioner claims the ALJ “accounted for” Ms. Mack's drowsiness in her RFC determination, ” (ECF No. 22 at 25), “the Court may not accept the Commissioner's ‘post hoc rationalizations.'” Lugo v. Berryhill, 390 F.Supp.3d 453, 460 (S.D.N.Y. 2019). In deciding Ms. Mack's application, the ALJ was required to expressly consider these purported side effects. The failure to do so was error and warrants remand. Plaza, 2020 WL 6135716, at *23 (finding that ALJ erred by failing to consider reported side effects of medication, including drowsiness and lack of concentration, in formulating RFC); Stella v. Comm'r of Soc. Sec., No. 19 Civ. 1751 (FB), 2020 WL 5369057, at *2 (E.D.N.Y. Sept. 8, 2020) (finding ALJ decision “deficient” because “it failed to account for the side-effects of Plaintiff's various medications-including lethargy, dizziness, drowsiness, and lightheadedness- on his RFC.”); Louis, 2018 WL 8545833, at *16-17 (finding ALJ decision “flawed” for not indicating that the ALJ considered the side effects of medication on the plaintiff's RFC where physician opined that the plaintiff's medications “cause dizziness and drowsiness” and the plaintiff “testified that her medications make her sleepy.”); Lim v. Colvin, 243 F.Supp.3d 307, 317-18 (E.D.N.Y. 2017) (finding the record inadequately developed where hypotheticals presented to the VE did not account for side effects caused by pain medications including “brain fog”); Vinson v. Colvin, No. 15 Civ. 6006 (MAT), 2015 WL 8482783, at *5 (W.D.N.Y. Dec. 9, 2015) (reversing ALJ decision where “the ALJ failed to include in his RFC the side-effects of these medications to which Plaintiff testified, chiefly, her drowsiness and tiredness, lack of ability to pay attention and concentration, difficulty remembering and increased forgetfulness.”). On remand, the ALJ must consider the side effects of Ms. Mack's medications and their impact, if any, on Ms. Mack's RFC.

3. The ALJ's reliance on the VE's testimony

Because the Court has already recommended, for the reasons discussed above, that remand for further evidentiary proceedings is necessary, the Court need not decide whether the ALJ's reliance on the VE's testimony was error. See Morales v. Colvin, No. 13 Civ. 6844 (LGS) (DF), 2015 WL 13774790, at *23 (S.D.N.Y. Feb. 10, 2015) (not reaching additional arguments regarding the ALJ's factual determinations “given that the ALJ's analysis may change on these points upon remand”), adopted by, 2015 WL 2137776 (S.D.N.Y. May 4, 2015); see also Ewen v. Saul, No. 19 Civ. 9394 (SLC), 2021 WL 1143288, at *17 (S.D.N.Y. Mar. 23, 2021) (following Morales). On remand, the RFC analysis may change based on a proper application of the Treating Physician Rule and a consideration of the side effects of Ms. Mack's medications.

C. Remand for Further Proceedings is the Appropriate Remedy

Ms. Mack asks the Court to “remand to award benefits” or, alternatively, “to remand the case for further proceedings, including a new hearing before a different ALJ.” (ECF No. 19 at 40). In particular, she “asks this court to find the eight[-]year delay she has endured to be unconscionable and remand to award benefits.” (Id.). The Commissioner argues that Ms. Mack “fails to show that this is a rare case where a remand for calculation of benefits is appropriate.” (ECF No. 22 at 27). Specifically, the Commissioner argues that the Record “does not contain such persuasive proof of disability that remand would serve no purpose” and that delay alone is an insufficient basis on which to remand for benefits. (Id. at 27-28). The Commissioner does not explicitly address Ms. Mack's request for reassignment to a new ALJ. In opposing her request for an award of benefits, the Commissioner argues that, “in the event that the Court finds that the ALJ committed legal error in weighing the medical opinions or other evidence, the ALJ should be given the opportunity to weigh the evidence under the correct legal standards, in the first instance.” (Id. at 28).

The Court agrees with the Commissioner that remand for further proceedings-and not solely for a calculation of benefits-is the appropriate remedy. “Remand for additional proceedings has been held to be appropriate ‘when there are gaps in the administrative record or the ALJ has applied an improper legal standard.'” Ben v. Berryhill, No. 17 Civ. 8345 (DCF), 2019 WL 1447892, at *4 (S.D.N.Y. Mar. 19, 2019) (quoting Rivera v. Barnhart, 423 F.Supp.2d 271, 277 (S.D.N.Y. 2006)). “Alternatively, the Court may remand solely for the calculation of benefits, but this is an ‘extraordinary action and is proper only when further development of the record would serve no purpose.'” Id. (quoting Rivera v. Barnhart, 379 F.Supp.2d 599, 604 (S.D.N.Y. 2005)). “The mere fact that a remand for additional proceedings will delay the ultimate resolution of a plaintiff's claim is not a proper basis for remand solely for the calculation of benefits.” Id. (citing Bush v. Shalala, 94 F.3d 40, 46 (2d Cir. 1996) (finding ten-year delay did not justify remand solely for calculation of benefits because “delay alone is an insufficient basis on which to remand for benefits.”)). While the Court is sympathetic to Ms. Mack's desire for a resolution, it cannot conclude on the Record before it that further proceedings would serve no purpose. Indeed, “[i]n a case where, as here, there is conflicting medical evidence, remand simply for the calculation of benefits is unwarranted.” Newell, 2021 WL 608991, at *23 (alteration and citation omitted) (remanding for fourth ALJ hearing); see Azeez v. Astrue, No. 09 Civ. 3976 (SLT), 2012 WL 959401, at *9 (E.D.N.Y. Mar. 21, 2012) (declining to remand solely for calculation of benefits and, instead, remanding for fifth ALJ hearing because “the ALJ must properly weigh the treating physicians' opinions before a clear conclusion can emerge.”).

The Court is not persuaded that remand to a different ALJ is warranted. “The decision to remand to a different ALJ is generally understood as one for the Commissioner to make, although it is within the power of the reviewing court to make such an order when the ALJ's conduct ‘gives rise to serious concerns about the fundamental fairness of the disability review process.'” Rodriguez v. Colvin, No. 15 Civ. 2570 (RLE), 2017 WL 1194705, at *17 (S.D.N.Y. Mar. 31, 2017) (quoting Ocasio v. Astrue, No. 08 Civ. 2016, 2009 WL 2905448, at *5 (S.D.N.Y. Sept. 4, 2009)). “Factors to consider when determining whether the ALJ's conduct has compromised the integrity and fairness of the hearing include: ‘(1) a clear indication that the ALJ will not apply the appropriate legal standard on remand; (2) a clearly manifested bias or inappropriate hostility toward any party; (3) a clearly apparent refusal to consider portions of the testimony or evidence favorable to a party, due to apparent hostility to that party; [and] (4) a refusal to weigh or consider evidence with impartiality, due to apparent hostility to any party.'” Id. (quoting Sutherland v. Barnhart, 322 F.Supp.2d 282, 292 (E.D.N.Y. 2004)). “When the conduct of an ALJ gives rise to serious concerns about the fundamental fairness of the disability review process, remand to a new ALJ is appropriate.” Servillo v. Berryhill, No. 18 Civ. 7118 (HBP), 2019 WL 4594225, at *21 (S.D.N.Y. Sept. 23, 2019) (citation and alteration omitted). “The unexplained rejection of relevant medical evidence, however, without additional evidence of partiality, incompetence, or bias, constitutes a legal error, not a legal error induced by hostility.” Rodriguez, 2017 WL 1194705, at *17. Here, Ms. Mack does not even argue-must less establish-that ALJ Schiro exhibited hostility or otherwise engaged in conduct that compromised the integrity of the hearing, and the Court finds no evidence of such conduct in the Record.

Accordingly, the Court respectfully recommends that this matter be remanded for further proceedings before ALJ Schiro.

IV. CONCLUSION

For the reasons set forth above, I respectfully recommend that Ms. Mack's Motion (ECF No. 18) be GRANTED IN PART to the extent she seeks reversal of the ALJ Decision and DENIED IN PART to the extent she seeks remand for a calculation of benefits, that the Commissioner's Motion (ECF No. 21) be DENIED, and that the 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 (14) 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), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Abrams.

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), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).