Opinion
20 Civ. 6504 (NSR) (AEK)
08-19-2022
JENNY LAUREN MERSAND, Plaintiff, v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
HONORABLE NELSON S. ROMAN, U.S.D.J.
This case was referred to the Honorable Lisa Margaret Smith on September 3, 2020, ECF No. 6, and the referral was reassigned to the undersigned on October 19, 2020.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE United States Magistrate Judge.
Plaintiff Jenny Lauren Mersand brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of the Social Security Administration (the “Commissioner”), which denied her application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under the Social Security Act (the “Act”). ECF No. 1. Currently pending before the Court are Plaintiff's motion, and the Commissioner's cross-motion, for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ECF Nos. 14, 18. For the reasons that follow, I respectfully recommend that Plaintiff's motion (ECF No. 14) be GRANTED, the Commissioner's motion (ECF No. 18) be DENIED, that judgment be entered in favor of Plaintiff, and that the case be remanded to the Commissioner for further administrative proceedings in accordance with sentence four of 42 U.S.C. § 405(g), and not solely for the calculation of benefits.
BACKGROUND
I. Procedural Background
On August 17, 2017, Plaintiff filed for DIB and SSI, alleging March 11, 2017, as the onset date of her disability. Administrative Record (“AR”) 233-39, 267, 282. In her initial filing, Plaintiff claimed she was disabled due to severe degenerative disc disease, osteomyelitis of the vertebra, lumbar discitis, unspecified discitis, chronic pain syndrome, bipolar disorder, paranoia, panic disorder, anxiety disorder, major depressive disorder, and anti-social personality disorder. AR 271. After the Social Security Administration (the “SSA”) denied her claim, AR 160, 171-78, Plaintiff requested a hearing before an administrative law judge (“ALJ”), AR 18084. An administrative hearing was held on March 7, 2019, and Plaintiff appeared in person and testified. AR 106-49.
Citations to “AR” refer to the certified copy of the administrative record filed by the Commissioner. ECF No. 11.
ALJ Michael J. Stacchini issued a decision on April 10, 2019, finding that Plaintiff was not disabled within the meaning of the Act from the alleged onset date, March 11, 2017, through the date of the decision. AR 16-29. Plaintiff subsequently filed a request for review of the ALJ's decision with the SSA's Appeals Council, which was denied on June 18, 2020. AR 1-6. That made the ALJ's April 10, 2019, decision the final decision of the Commissioner. The instant lawsuit, seeking judicial review of the ALJ's decision, was filed on August 17, 2020. ECF No. 1.
II. Testimonial, Medical, and Vocational Evidence
Both parties have provided summaries of the testimonial, medical, and vocational evidence contained in the administrative record. See ECF No. 15 (“Pl.'s Mem. of Law”) at 2-5, 6-16; ECF No. 19 (“Def.'s Mem. of Law”) at 1-13. Based on an independent and thorough examination of the record, the Court finds that the parties' summaries of the evidence are largely comprehensive and accurate. Accordingly, the Court adopts these summaries and discusses the evidence in the record in more detail to the extent necessary to a determination of the issues raised in this case. See, e.g., Banks v. Comm'r of Soc. Sec., No. 19-cv-929 (AJN) (SDA), 2020 WL 2768800, at *2 (S.D.N.Y. Jan. 16, 2020), adopted by 2020 WL 2765686 (S.D.N.Y. May 27, 2020).
APPLICABLE LEGAL PRINCIPLES
I. Standard of Review
The scope of review in an appeal from a Social Security disability determination involves two levels of inquiry. First, the court must review the Commissioner's decision to assess whether the Commissioner applied the correct legal standards when determining that the plaintiff was not disabled. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). “‘Failure to apply the correct legal standards is grounds for reversal.'” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
Second, the court must evaluate whether the Commissioner's decision was supported by substantial evidence. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 106 (quotation marks omitted). The “substantial evidence” standard of review is “very deferential,” and it not the function of the reviewing court “to determine de novo whether a plaintiff is disabled.” Schillo v. Kijakazi, 31 F.4th 64, 74 (2d Cir. 2022) (quotation marks omitted). To determine whether a decision by the Commissioner is supported by substantial evidence, courts must “examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Id. (quotation marks omitted). “The substantial evidence standard means once an ALJ finds facts, [courts] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Id. (quotation marks omitted) (emphasis in original).
II. Determining Disability
The Act defines “disability” as the “inability 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. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual is disabled under the Act if he or she suffers from an impairment which is “of such severity that he [or she] is not only unable to do his [or her] previous work but cannot . . . engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). “‘[W]ork which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” Id.
Regulations issued pursuant to the Act set forth a five-step process that the Commissioner must follow in determining whether a particular claimant is disabled. See 20 C.F.R. § 404.1520(a)(4). The Commissioner first considers whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), (b), 416.920(a)(4)(i), (b). If the claimant is engaged in substantial gainful activity, then the Commissioner will find that the claimant is not disabled; if the claimant is not engaged in substantial gainful activity, the Commissioner proceeds to the second step, at which the Commissioner considers the medical severity of the claimant's impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A severe impairment is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant suffers from any severe impairment, the Commissioner at step three must decide if the impairment meets or equals a listed impairment; listed impairments are presumed severe enough to render an individual disabled, and the criteria for each listing are found in Appendix 1 to Part 404, Subpart P of the SSA regulations. 20 C.F.R §§ 404.1520(a)(4)(iii), (d), 416.920(a)(4)(iii), (d).
If the claimant's impairments do not satisfy the criteria of a listed impairment at step three, the Commissioner must then determine the claimant's residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). A claimant's RFC represents “the most [he or she] can still do despite [his or her] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). After determining the claimant's RFC, the Commissioner proceeds to the fourth step to determine whether the claimant can perform his or her past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), (e)-(f), 416.920(a)(4)(iv), (e)-(f). If it is found that the claimant cannot perform his or her past relevant work, the Commissioner proceeds to step five to consider the claimant's RFC, age, education, and work experience to determine whether he or she can adjust to other work. 20 C.F.R. §§ 404.1520(a)(4)(v), (g), 416.920(a)(4)(v), (g). To support a finding that the claimant is disabled, there must be no other work existing in significant numbers in the national economy that the claimant, in light of his or her RFC and vocational factors, is capable of performing. 20 C.F.R. § 404.1560(c).
The claimant bears the burden of proof on the first four steps of this analysis. DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998). If the ALJ concludes at an early step that the claimant is not disabled, he or she need not proceed with the remaining steps. Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000). If the fifth step is necessary, the burden shifts to the Commissioner to show that the claimant is capable of performing other work. DeChirico, 134 F.3d at 1180.
DISCUSSION
Plaintiff seeks to reverse the Commissioner's decision and have the matter remanded to the SSA solely for the calculation of benefits or, in the alternative, to have the matter remanded to the SSA for further administrative proceedings. She contends that the ALJ erred in (i) finding that her impairments did not meet or equal the Listings in Appendix 1 to Part 404, Subpart P of the SSA regulations at §§ 12.04 and/or 12.06, and (ii) finding that she was capable of sedentary work. See Pl.'s Mem. of Law at 17-24; ECF No. 22 (“Reply Mem.”) at 2-5. In her reply brief, Plaintiff makes the additional argument that the ALJ erred in relying on the vocational expert's testimony in making his step five determination. Reply Mem. at 5-8. The Commissioner maintains that the ALJ's decision should be affirmed as it is based upon the application of correct legal standards and is supported by substantial evidence. Def.'s Mem. of Law at 15-25.
There is an inconsistency in Plaintiff's briefing regarding the precise relief she seeks. Compare Pl.'s Mem. of Law at 1 (in “Statement of the Case” section, seeking remand for further administrative proceedings pursuant to 42 U.S.C. § 405(g)) with id. at 29-30 (in “Conclusion” section, seeking remand for calculation of benefits only).
As discussed below, the Court finds that the Commissioner failed to apply the correct legal standard in his step three determination, and therefore respectfully recommends that Plaintiff's motion for judgment on the pleadings be granted, the Commissioner's motion be denied, that judgment be entered in favor of Plaintiff, and that the case be remanded to the Commissioner for further administrative proceedings in accordance with sentence four of 42 U.S.C. § 405(g), and not solely for the calculation of benefits.
I. The ALJ's Decision
ALJ Stacchini employed the five-step analysis described above and issued a decision finding that Plaintiff was not disabled from the alleged onset date of March 11, 2017, through the date of the decision, April 10, 2019. AR 16-29. First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since March 11, 2017. AR 19. Second, the ALJ determined that Plaintiff had the severe impairments of osteomyelitis, degenerative disc disease of the lumbar spine, discitis, Lyme disease, degenerative disc disease of the thoracic spine, degenerative disc disease of the cervical spine, right shoulder impingement, carpal tunnel syndrome, obesity, limb length discrepancy, anxiety, bipolar disorder, panic disorder, depression, attention deficit hyperactivity disorder, and post-traumatic stress disorder. Id. Third, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 19-21.
According to the ALJ, Plaintiff retained the RFC to perform “a range of sedentary work,” as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), as follows:
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a).
she can stand and walk for two hours and sit for six hours in an eight-hour workday. She can have normal 15 minutes break in the morning and afternoon and a 30 to 60 minute midday break. She can occasionally climb ramps and stairs. She can never climb ropes, scaffolds or ladders. She can occasionally balance, stoop, kneel, and crouch. She cannot crawl. She can frequently reach, handle and finger. She cannot perform overhead
reaching. She must avoid unprotected heights and hazardous machinery. She is limited to understanding, remembering and carrying out simple, routine tasks with regularly scheduled breaks. She can work only in a low stress job defined as one having decision making and changes in work setting related to simple routine tasks with occasional interaction with the general public, coworkers and supervisors.AR 21.
ALJ Stacchini determined Plaintiff's RFC by applying the two-step framework described in 20 C.F.R. §§ 404.1529 and 416.929 and SSR 16-3p. AR 21-22. He concluded that although Plaintiff's medically determinable impairments “could reasonably be expected to cause the alleged symptoms,” her “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” AR 22. In particular, the ALJ found that “although the record confirms [Plaintiff's] physical and psychological impairments with some resulting limitations in functioning, these impairments are not documented to preclude all work activity and would permit [Plaintiff] to engage in work activity consistent with” the ALJ's RFC finding. Id.
The ALJ specified that the first step in this process is to determine “whether there is an underlying medically determinable physical or mental impairment(s)i.e., an impairment(s) that can be shown by medically acceptable clinical or laboratory diagnostic techniques-that could reasonably be expected to produce the claimant's pain or other symptoms.” AR 21. The second step in the process, “once an underlying physical or mental impairment(s) that could reasonably be expected to produce the claimant's pain or other symptoms has been shown,” is for the ALJ to “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functional limitations.” Id. “[W]henever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the [ALJ] must consider other evidence in the record to determine if the claimant's symptoms limit the ability to do work-related activities.” AR 21-22.
The ALJ also considered the medical opinion evidence in the record. First, ALJ Stacchini concluded that the opinions of Disability Determination Services (“DDS”) finding Plaintiff's mental impairments non-severe were not persuasive, and the opinions of DDS with respect to Plaintiff's physical impairments-that she was limited to a range of light work-were “partially persuasive.” AR 25. With respect to her mental impairments, he found that even though Plaintiff complied with medication and therapy, her symptoms “ha[d] not completely resolved.” Id. Therefore, Plaintiff's mental impairments were severe and resulted in moderate limitations in functioning. Id. With respect to Plaintiff's physical impairments, the ALJ found that subsequent medical records, as well as Plaintiff's documented subjective complaints and testimony, supported an RFC for sedentary work with the additional postural limitations that he included. Id.
The ALJ did not find the opinions of the independent examiners-psychological examiner Dr. Tsoubris or physical examiner Dr. Kumar-to be persuasive, as they were not consistent with the evidence in the record. AR 25-26. Similarly, the ALJ found the opinions of Plaintiff's medical providers to be persuasive only to the extent that they were supported by, and consistent with, the evidence in the record. AR 26-27.
Lastly, the ALJ found that Plaintiff's “allegations of debilitating symptoms are not wholly consistent with the objective evidence of record,” citing her daily activities, including that she “is independent with her personal care and assists in the care of her father”; “is able to drive”; and “can prepare simple meals, empty the dishwasher, sweep at times and do laundry.” AR 27. The ALJ also cited the “routine and/or conservative” treatment that Plaintiff had received for her impairments, noting that although Plaintiff alleged “extreme side effects from her medications, these are not supported by [sic] record.” Id.
At the fourth step, citing the hearing testimony of vocational expert Sugi Komarov, the ALJ found that Plaintiff was unable to perform her past relevant work as a cashier and a waitress-both prior jobs required light work, and Plaintiff was limited to a range of sedentary work. AR 28.
At the fifth step, the ALJ noted that Plaintiff, at age 35 on the alleged onset date, was a “younger individual,” and that transferability of job skills was “not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is ‘not disabled,' whether or not the claimant has transferable job skills.” Id. The ALJ stated that if Plaintiff “had the residual functional capacity to perform the full range of sedentary work, a finding of ‘not disabled' would be directed by Medical-Vocational Rule 201.28.” Id. But the ALJ concluded that Plaintiff's “ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations.” Id. Thus, “[t]o determine the extent to which these limitations erode the unskilled sedentary occupational base, [the ALJ] asked the vocational expert whether jobs exist in the national economy for an individual with [Plaintiff's] age, education, work experience, and [RFC].” AR 28-29. The vocational expert testified that Plaintiff could perform the requirements of representative occupations such as (1) semiconductor bonder (22,500 jobs in the national economy); (2) addresser (8,200 jobs in the national economy); and (3) printed circuit layout taper (10,000 jobs in the national economy). AR 29; see AR 145. Citing SSR 00-4p, the ALJ determined that the vocational expert's testimony was “consistent with the information contained in the Dictionary of Occupational Titles with the exception to [sic] the portion of the testimony regarding overhead reaching.” AR 29. Relying upon the vocational expert's testimony, the ALJ found that, “considering [Plaintiff's] age, education, work experience, and [RFC],” Plaintiff could adjust to other work that existed in significant numbers in the national economy. Id. ALJ Stacchini therefore concluded that Plaintiff was not disabled from the alleged onset date, March 11, 2017, through the date of the decision, April 10, 2019. Id.
II. The ALJ's Step Three Determination
Plaintiff maintains that the ALJ erred in failing to find at step three of his analysis that her impairments met or equaled Listings 12.04 and/or 12.06, and in particular, in failing to find that she satisfied either the paragraph B or paragraph C criteria for those Listings. Pl.'s Mem. at 17-22. To satisfy Listings 12.04 (Depressive, Bipolar and Related Disorders) and/or 12.06 (Anxiety and Obsessive-Compulsive Disorders), Plaintiff's mental disorders had to satisfy the paragraph A criteria and either the paragraph B or the paragraph C criteria for those Listings. 20 C.F.R. Part 404, Subpt. P, App. 1 §§ 12.04, 12.06. A finding that Plaintiff's mental impairments met or equaled Listings 12.04 and/or 12.06 would have resulted in a finding of disability.
The paragraph A criteria are “the medical criteria that must be present in [a claimant's] medical evidence.” 20 C.F.R. Part 404, Subpt. P, App. 1 § 12.00(A)(2)(a). Courts assume that where, as here, the ALJ did not explicitly address the paragraph A criteria, the ALJ found those criteria to have been satisfied. See, e.g., Gonzalez v. Saul, No. 19-cv-2317 (JLC), 2020 WL 5550043, at *19 (S.D.N.Y. Sept. 16, 2020). Accordingly, the Court assumes here that the ALJ found that Plaintiff met the requirements of paragraph A of Listings 12.04 and 12.06 and focuses its analysis on paragraphs B and C.
A. Paragraph B Criteria
The paragraph B criteria for Listings 12.04 and 12.06 are the same. To meet the criteria of paragraph B, a plaintiff must demonstrate either “extreme” limitation of one or “marked” limitation of two of the following areas of mental functioning: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; or (4) adapting or managing oneself. Id. Limitations in an area of functioning are considered “marked” when the ability to function independently, appropriately, and effectively on a sustained basis is seriously limited, 20 C.F.R. Part 404, Subpt. P, App. 1, § 12.00(F)(2)(d), and are considered “extreme” when there is no ability to function independently, appropriately, and effectively on a sustained basis, 20 C.F.R. Part 404, Subpt. P, App. 1, § 12.00(F)(2)(e). Here, the ALJ determined that Plaintiff had a mild limitation in understanding, remembering, or applying information, and moderate limitations in interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. AR 20. He therefore concluded that with respect to Plaintiff's mental impairments, the paragraph B criteria were not satisfied. Id. This determination was supported by substantial evidence.
Plaintiff does not contest the ALJ's finding that she suffered only a mild limitation in understanding, remembering, or applying information, and indeed that finding is supported by substantial evidence. As the ALJ noted, Plaintiff had been “in regular education and she is noted to have obtained an Associate's Degree in liberal arts.” AR 20; see AR 654. In further support of this finding, the ALJ cited Plaintiff's testimony that she lived with her father and provided care to him. AR 20; see AR 112-15.
The ALJ noted, in the context of his RFC determination, consultative examiner Dr. Tsoubris's finding that Plaintiff's memory was intact. AR 25; see AR 656; see also AR 675 (Dr. Conciatori's initial psychiatric assessment noted that Plaintiff's memory was intact).
With respect to the other paragraph B criteria, Plaintiff asserts that the ALJ's findings are not supported by substantial evidence, citing her own hearing testimony regarding her poor social skills; poor cognitive functioning; side effects from medications; and difficulties with hygiene, activities of daily living, and managing money. See Pl.'s Mem. at 18-19. However, the ALJ was allowed to reject that testimony as inconsistent with other substantial evidence in the record-in particular, her mental health treatment records, AR 660-76-which reflected greater functional ability than Plaintiff described at the hearing. See Irish v. Colvin, No. 14-cv-668 (MAD) (ATB), 2015 WL 4393175, at *12 (N.D.N.Y. July 15, 2015) (“The ALJ is not required to credit a plaintiff's testimony where it is unsupported by the objective medical evidence.”) (citing Lewis v. Colvin, 548 Fed.Appx. 675, 678 (2d Cir. 2013)). The numerous discrepancies between Plaintiff's descriptions of her limitations during her hearing testimony and the evidence in Plaintiff's medical records is described in further detail below.
Plaintiff also argues that the ALJ erred in rejecting the opinions of consultative examiner Dr. Tsoubris and treating physician Dr. Conciatori, which, in Plaintiff's view, support a finding that she had marked limitations with respect to the mental functioning areas of interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Pl.'s Mem. at 19.
Because Plaintiff filed her applications for DIB and SSI after March 27, 2017, her claims are governed by the SSA's current regulations concerning the consideration of medical opinions. See 20 C.F.R. §§ 404.1520c, 416.920c. “Under the new regulations, a treating doctor's opinion is no longer entitled to a presumption of controlling weight.” Knief v. Comm'r of Soc. Sec., No. 20-cv-6242 (PED), 2021 WL 5449728, at *6 (S.D.N.Y. Nov. 22, 2021) (quotation marks omitted). Rather, an ALJ will neither defer, nor give any specific evidentiary weight, to any medical opinion. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). An ALJ must evaluate the persuasiveness of all medical opinions based on the following factors: (1) supportability; (2) consistency; (3) the medical source's relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the medical opinion. 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). Supportability and consistency are considered the most important factors in evaluating a medical opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2); see Knief, 2021 WL 5449728, at *6. With respect to supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). With respect to consistency, “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). As part of his or her decision, the ALJ must explain how the factors of supportability and consistency were considered. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2); see Knief, 2021 WL 5449728, at *6. In general, the ALJ may, but is not required to, explain how the other factors were considered.
As the ALJ explained in both his step three determination and later in his discussion of Plaintiff's RFC, he did not accept Dr. Tsoubris's opinions because they were not consistent with Plaintiff's treatment records. In particular, with respect to the mental functioning area of interacting with others, although Dr. Tsoubris stated that Plaintiff had poor social skills, AR 655, and Plaintiff testified that she had no real friends and did not socialize, AR 116, Plaintiff also testified that she occasionally texted people or messaged them on social media, AR 20; see AR 116, and Dr. Conciatori's treatment records, AR 660-76 (cited by the ALJ as Exhibit 13F), showed that on mental status examinations, Plaintiff “[made] good eye contact and [was] cooperative.” AR 20. With respect to the mental functioning area of concentrating, persisting, or maintaining pace, Plaintiff told Dr. Tsoubris that she “cannot work because she cannot stand or walk for long due to pain,” id.; see AR 654-i.e., due to physical, rather than mental, limitations-but treatment records noted that Plaintiff had “normal speech, thought process and thought content.” AR 20 (citing Exhibit 13F). As to the mental functioning area of adapting or managing oneself, Plaintiff told Dr. Tsoubris that “she was able to dress, bathe, and groom herself,” though “she sometimes spent weeks in her pajamas”; she also reported that she had difficulty handling money and did not cook for herself, but she did drive. AR 20; see AR 657. Plaintiff also testified that “she helps care for her retired father, who she resides with” and that “she does simple chores, shopping and cleaning.” AR 20; see AR 112-15. The ALJ further cited the mental status examinations in the treatment records, which “consistently noted” that Plaintiff was “well groomed with good insight, judgment and impulse control.” AR 20 (citing Exhibit 13F).
Although the ALJ did not separately discuss his evaluation of Dr. Tsoubris's or Dr. Conciatori's opinions at step three of his disability analysis, the ALJ provided a detailed discussion of the opinion evidence in explaining his RFC determination. See AR 25-27. The Court is able to find that the ALJ's step three determination regarding the paragraph B criteria for Listings 12.04 and 12.06 is supported by substantial evidence based in part on this later discussion in the ALJ's decision. See Salmini v. Comm'r of Soc. Sec., 371 Fed.Appx. 109, 112 (2d Cir. 2010) (summary order) (“Although . . . an ALJ should set forth a sufficient rationale in support of his [or her] decision to find or not to find a listed impairment, the absence of an express rationale for an ALJ's conclusions does not prevent us from upholding them so long as we are able to look to other portions of the ALJ's decision and to clearly credible evidence in finding that his [or her] determination was supported by substantial evidence.”) (quotation marks omitted).
Relatedly, in the context of his RFC determination, the ALJ noted that Plaintiff reported that Adderall “calmed her down,” AR 24; see AR 665 (Adderall was “doing a good job with calming her down”). Elsewhere in Plaintiff's mental health records, Plaintiff reported that “[s]he feels that the Adderall had been helpful in addressing her concentration issues, but feels that the dose needs to be higher still,” AR 664, and that “[s]he feels that her focus and concentration are fairly good.” AR 666. The ALJ also noted Dr. Tsoubris's finding that Plaintiff's attention, concentration, and memory were all intact. AR 25; see AR 656.
In the context of his RFC determination, the ALJ concluded that Dr. Tsoubris's opinion was “not persuasive” and reiterated that it was inconsistent with the record as well as Dr. Tsoubris's own evaluation. AR 25. Although Dr. Tsoubris had opined that Plaintiff had a “marked limitation for regulating her emotions and controlling her behavior . . . the record, including the evaluation by Dr. Tsoubris, continually note[d] that [Plaintiff] [was] cooperative with all of her providers and exhibit[ed] appropriate behavior ....” Id.; see AR 655 (Dr. Tsoubris noted that Plaintiff's demeanor “was cooperative”). Again, the ALJ cited Plaintiff's treating psychologist, Dr. Conciatori, who noted that Plaintiff “exhibit[ed] intact impulse control, judgment and insight,” which was “not consistent with a marked limitation in functioning.” AR 25; see AR 660-76. Similarly, the ALJ rejected Dr. Tsoubris's opinion that Plaintiff “had marked limitations for sustaining routine and regular attendance at work” since this was “not consistent with her documented and regular attendance at her various doctor's appointments and her treating psychologist documenting her intact mental status exam.” AR 25-26; see AR 66076, 668 (Dr. Conciatori had “no concerns” about Plaintiff's “ability to live independently” and noted that she was “compliant with all medications and appointments”). Finally, the ALJ noted that although Dr. Tsoubris opined that Plaintiff had “a marked limitation with personal hygiene,” this was “not supported or consistent with the various examinations in the record documenting her appropriate hygiene.” AR 26; see AR 660-76 (consistently noting that Plaintiff was “well groomed”). There was no legal error in the ALJ's discounting of Dr. Tsoubris's opinion as not persuasive-the consultative examiner's opinion lacked support in the record and was inconsistent with her mental health treatment records.
The ALJ also properly rejected Dr. Conciatori's opinion, AR 1134-39, as neither supported by his own treatment records nor consistent with other evidence in the record, see AR 27. More specifically, the treatment records reflected Plaintiff's “improvement with psychotropic medication” and “consistently stable” mental status examinations with no psychiatric admissions. Id.; see AR 660-76. The ALJ noted that Plaintiff's memory “was consistently documented to be intact,” AR 27; see AR 656, 675; that “she was always noted to be alert and oriented,” id.; that “she was cooperative,” AR 27; see AR 655; and that “her attention remained intact.” AR 27; see AR 656. Furthermore, Plaintiff's reported daily activities were “not consistent with such significant limitations” as were assessed by Dr. Conciatori. AR 27; see AR 113-15 (Plaintiff testified that she drives, does her and her father's laundry, makes microwave meals, empties the dishwasher, sometimes sweeps and cleans, and goes shopping), AR 657 (Plaintiff reported that she is able to dress, bathe, and groom herself and that she goes shopping, empties the dishwasher, folds laundry, drives, goes to doctors' appointments, fills out SSI paperwork, goes to pharmacies, watches TV, and talks to her brother).
Although Plaintiff maintains that the ALJ was only able to conclude that her impairments did not equal either of the Listings by “cherry picking” the opinion evidence, Pl.'s Mem. at 21, an ALJ may “choose between properly submitted medical opinions.” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998). And “[g]enuine conflicts in the medical evidence are for the Commissioner to resolve.” Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); see Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (“In our review, we defer to the Commissioner's resolution of conflicting evidence.”). An ALJ does not cherry-pick evidence when he or she reviews the evidence in the record and explains why he or she accepts some evidence and rejects other evidence. See Withus v. Saul, No. 18-cv-10923 (VSB) (JLC), 2021 WL 2012270, at *12 (S.D.N.Y. May 19, 2021). It was entirely appropriate for the ALJ to resolve conflicts in the medical evidence between the varying opinions and the treatment records themselves in making his paragraph B determination, and the ALJ provided a detailed explanation of his evaluation of that evidence and his reasons for accepting or rejecting it.
In sum, the ALJ appropriately evaluated the medical opinion evidence in concluding that Plaintiff did not satisfy the paragraph B criteria of Listings 12.04 and 12.06, and this conclusion is supported by substantial evidence.
B. Paragraph C Criteria
Plaintiff would nevertheless be considered disabled if her mental impairments satisfy the paragraph C criteria for Listings 12.04 and/or 12.06. The current version of the paragraph C criteria for Listings 12.04 and 12.06 became effective on January 17, 2017. See 81 Fed.Reg. 66138-01, 2016 WL 5341732 (S.S.A. Sept. 26, 2016); Pl.'s Mem. of Law at 18. With the January 17, 2017 revision, the paragraph C criteria for each of those Listings became the same. These paragraph C criteria were in effect as of the date Plaintiff filed her claims for DIB and SSI (August 17, 2017), as of the date of the alleged onset of Plaintiff's disability (March 11, 2017), and, critically, as of the date the ALJ issued his decision in this matter (April 10, 2019). Paragraph C requires that a claimant has a “serious and persistent” mental disorder, i.e., “a medically documented history of the existence of the disorder over a period of at least 2 years” and evidence of both (1) “[m]edical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of [the claimant's] mental disorder”; and (2) “[m]arginal adjustment, that is, [the claimant has] minimal capacity to adapt to changes in [his or her] environment or to demands that are not already part of [his or her] daily life.” 20 C.F.R. Part 404, Subpt. P, App. 1 §§ 12.04(C), 12.06(C) (emphases added).
This Federal Register document titled, “Revised Medical Criteria for Evaluating Mental Disorders,” states as follows with respect to the January 17, 2017 effective Dated:
This means that [the SSA] will use these final rules on and after their effective date, in any case in which we make a determination or decision. We expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions. If a court reverses our final decision and remands a case for further administrative proceedings after the effective date of these final rules, we will apply these final rules to the entire period at issue in the decision we make after the court's remand.81 Fed.Reg. 66138-01, 2016 WL 5341732, at n.1 (S.S.A. Sept. 26, 2016) (emphasis added). Between January 17, 2017 and today, there have been various revisions to 20 C.F.R. Part 404, Subpt. P, App. 1, Pt. A2, the section of the Listing of Impairments that includes Listings 12.04 and 12.06. The revised paragraph C criteria for Listings 12.04 and 12.06 which took effect on January 17, 2017 have remained consistent and in effect in all of the versions.
It is clear from the Commissioner's memorandum of law that counsel for the Commissioner applied the current version of the paragraph C criteria in her briefing of this issue for the Court-the Commissioner cites the language of the current criteria, and notes that the paragraph C criteria are “identical for Listings §§ 12.04 and 12.06.” Def.'s Mem. of Law at 17.
Prior to the January 17, 2017 revision, the paragraph C criteria for Listings 12.04 and 12.06 were different. For the period September 29, 2016 to January 16, 2017, the paragraph C requirements for Listing 12.04 (then labeled “Affective Disorders”) were as follows:
Medically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.20 C.F.R. Part 404, Subpt. P, App. 1 § 12.04(C) (effective Sept. 29, 2016 through Jan. 16, 2017) (emphases added).
During that same September 29, 2016 to January 16, 2017 period, the only paragraph C requirement for Listing 12.06 (then labeled “Anxiety Related Disorders”) was that the claimant have a disorder “[r]esulting in complete inability to function independently outside the area of one's home.” Id. § 12.06(C) (effective Sept. 29, 2016 through Jan. 16, 2017).
In assessing whether Plaintiff satisfied the paragraph C criteria with respect to Listings 12.04 and/or 12/06 here, ALJ Stacchini determined that although Plaintiff suffered from depression, there was no evidence that her condition “has resulted in [1] repeated episodes of decompensation or [2] a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in environment would be predicted to cause [her] to decompensate or [3] an inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.” AR 20-21. The ALJ also found that the record “fail[ed] to reflect that [Plaintiff's] anxiety has resulted in a complete inability to function independently outside the area of the home.” AR 21. The language of these findings precisely tracks the disparate paragraph C criteria that were in effect during the September 29, 2016 through January 16, 2017 period-in other words, not the appropriate paragraph C criteria in effect at the time the decision was issued (and at the time Plaintiff's claims were filed). The only possible conclusion to draw here is that the ALJ applied the incorrect paragraph C criteria in his evaluation of Plaintiff's claims.
Both parties in this federal court litigation were appropriately aware of the revised criteria that became effective on January 17, 2017. Plaintiff begins Point I of the “Argument” section of her memorandum of law by noting the existence of the revised mental health listings, and the Commissioner's brief specifically and correctly details the current paragraph C criteria as the appropriate legal standard. Unfortunately, neither party acknowledges that the ALJ applied the older, incorrect version of the paragraph C criteria in his analysis, and consequently, neither party addresses the impact of this error, if any, on the ALJ's decision.
“Because [Plaintiff] would be entitled to disability benefits as a matter of law if her impairments met the severity of any of the Listings, it was imperative for the ALJ to apply the correct legal standards when evaluating the evidence.” Maldonado on behalf of N.L.M.B. v. Comm'r of Soc. Sec., No. 19-cv-8074 (ER) (SN), 2021 WL 1536652, at *8 (S.D.N.Y. Feb. 4, 2021), adopted by 2021 WL 1158412 (S.D.N.Y. Mar. 26, 2011). “[A]lthough deference is traditionally afforded to the Commissioner's decisions, where evidence has not been properly evaluated because of an erroneous view of the law . . . the determination of the [Commissioner] will not be upheld.” Rodriguez ex rel. V.R. v. Comm'r of Soc. Sec., No. 13-cv-2152 (ALC), 2014 WL 4792076, at *1 (S.D.N.Y. Sept. 25, 2014) (quotation marks omitted). “Reversal is thus warranted where, for example, the ALJ applied the wrong Listing(s) of Impairments contained in Appendix 1 to the Social Security Regulations in evaluating a claimant's case.” Id.; see also Brown v. Barnhart, 370 F.Supp.2d 286, 290 (D.D.C. 2005) (reversing where the ALJ failed to apply the correct Listing that became effective three days before the ALJ's decision was issued).
It is not for the Court to assess, in the first instance, whether application of the correct version of the paragraph C criteria for Listings 12.04 and 12.06 would have altered the ALJ's step three determination. Rather, the ALJ's failure to apply the correct legal standard warrants reversal of his decision and remand for further administrative proceedings.
Because the Court recommends remand based on the ALJ's legal error at step three of his disability analysis, the Court declines to address Plaintiff's arguments that the ALJ erred in finding that she was capable of sedentary work and further erred in relying on the vocational expert's testimony in making his step five determination.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff's motion for judgment on the pleadings (ECF No. 14) be GRANTED, the Commissioner's motion for judgment on the pleadings (ECF No. 18) be DENIED, that judgment be entered in favor of Plaintiff, and that the case be remanded to the Commissioner for further administrative proceedings in accordance with sentence four of 42 U.S.C. § 405(g), and not solely for the calculation of benefits.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a). 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 responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Nelson S. Roman, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, w10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Roman, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).