Opinion
21-CV-10663 (PAE)(RWL)
02-09-2023
ANGELA BENCEBI NAZARIO, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION TO HON. PAUL A. ENGELMAYER: SOCIAL SECURITY APPEAL
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Angela Bencebi Nazario (“Nazario”), represented by counsel, commenced the instant action against Defendant Commissioner (the “Commissioner”) of the Social Security Administration (the “Administration”), pursuant to the Social Security Act (the “Act”), 42 U.S.C. § 405(g), seeking review of the Commissioner's decision that Nazario is not entitled to disability insurance benefits (“DIB”) for the period from July 1, 2012 to December 3, 2013, even though she was approved for benefits starting December 4, 2013. Nazario has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, asking the Court to reverse and remand the Commissioner's decision solely for a calculation and award of benefits for the relevant period or to, alternatively, remand for a new hearing. The Commissioner has crossmoved for judgment on the pleadings, asking the Court to affirm the Commissioner's decision. For the reasons explained below, I recommend that Nazario's motion be GRANTED, and that the Commissioner's motion be DENIED.
PROCEDURAL HISTORY
On December 4, 2012, Nazario filed an application for DIB for a period of disability beginning July 1, 2012. (R. 163-64.) Her claim was denied on March 12, 2013 (R. 92103), and Nazario requested a hearing before an Administrative Law Judge (“ALJ”) later that month (R. 111-12). Nazario appeared for an in-person hearing on May 27, 2014 and testified before ALJ Elias Feuer (“ALJ Feuer” or the “2014 ALJ”). (R. 40-91.)
“R.” refers to the certified administrative record (Dkt. 14.)
On September 10, 2014, ALJ Feuer issued a partially favorable decision finding that Nazario had severe impairments consisting of a left shoulder tear, cervical and lumbar radiculopathy, epilepsy, and diabetes, and that Nazario was disabled as of, but not before, December 4, 2013. (R. 19-39.) Nazario requested review by the Appeals Council. (R. 18.) Upon the Appeals Council's denial of review on December 15, 2015, ALJ Feuer's decision became final. (R. 1-5.) Nazario then commenced a civil action in this District challenging the portion of the decision denying benefits for the period prior to December 4, 2013. On July 18, 2018, the court issued a decision in Nazario's favor, ordering remand. (R. 673-87.) On November 9, 2018, the Appeals Council remanded the claim for a new hearing and decision concerning Nazario's disability prior to December 4, 2013. (R. 689-95.)
On April 23, 2019, Nazario, represented by counsel, appeared for an in-person hearing before ALJ Robert Gonzalez (“ALJ Gonzalez” or the “2019 ALJ”). (R. 586-616.) In addition to Nazario, testimony was provided by vocational expert Christine Ditrinco (the “VE”). (R. 607-15.) On May 30, 2019, ALJ Gonzalez issued a decision finding that Nazario had additional severe impairments of lumbar spine degenerative disease and vertigo, but again finding that Nazario was disabled as of, but not before, December 4, 2013. (R. 556-83.) The Appeals Council denied review on April 17, 2020. (R. 541-47.) Nazario then filed the instant action on December 13, 2021. Nazario filed her motion for judgment on the pleadings on July 18, 2022. (Dkts. 18-19.) The Commissioner crossmoved on September 16, 2022. (Dkts. 21-22.) Nazario replied on October 7, 2022. (Dkt. 23.) The matter has been referred to me for report and recommendation. (Dkt. 5.)
APPLICABLE LAW
A. Standard Of Review
A United States District Court may affirm, modify, or reverse (with or without remand) a final decision of the Commissioner. 42 U.S.C. § 405(g); Skrodzki v. Commissioner of Social Security Administration, 693 Fed.Appx. 29, 29 (2d Cir. 2017) (summary order). The inquiry is “whether the correct legal standards were applied and whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004); see also Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (same).
“‘Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.'” Douglass v. Astrue, 496 Fed.Appx. 154, 156 (2d Cir. 2012) (quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (remanding for noncompliance with regulations)). Courts review de novo whether the correct legal principles were applied and whether the legal conclusions made by the ALJ were based on those principles. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (reversing where the court could not “ascertain whether [the ALJ] applied the correct legal principles ... in assessing [plaintiff's] eligibility for disability benefits”); Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (reversing where the Commissioner's decision “was not in conformity with the regulations promulgated under the Social Security Act”); Thomas v. Astrue, 674 F.Supp.2d 507, 515, 520 (S.D.N.Y. 2009) (reversing for legal error after de novo consideration).
If the reviewing court is satisfied that the ALJ applied the correct legal standards, then the court must “‘conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision.'” Brault v. Social Security Administration, Commissioner, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). Substantial evidence is defined as “‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971)); see also Biestek v. Berryhill, ___ U.S. ___, ___, 139 S.Ct. 1148, 1154 (2019) (reaffirming same standard). “The substantial evidence standard means once an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448 (internal quotation marks omitted) (emphasis in original); see also 42 U.S.C. § 405(g) (“findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive”).
To be supported by substantial evidence, the ALJ's decision must be based on consideration of “all evidence available in [the claimant]'s case record.” 42 U.S.C. § 423(d)(5)(B). The Act requires the ALJ to set forth “a discussion of the evidence” and the “reasons upon which [the decision] is based.” 42 U.S.C. § 405(b)(1). While the ALJ's decision need not “mention[ ] every item of testimony presented,” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam), or “‘reconcile explicitly every conflicting shred of medical testimony,'” Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983), the ALJ may not ignore or mischaracterize evidence of a person's alleged disability. See Ericksson v. Commissioner of Social Security, 557 F.3d 79, 82-84 (2d Cir. 2009) (mischaracterizing evidence); Kohler, 546 F.3d at 268-69 (overlooking and mischaracterizing evidence); Ruiz v. Barnhart, No. 01-CV-1120, 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring evidence).
Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). The Court must afford the Commissioner's determination considerable deference and “‘may not substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'” Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary of Health and Human Services, 733 F.2d 1037, 1041 (2d Cir. 1984)); Dunston v. Colvin, No. 14-CV-3859, 2015 WL 54169, at *4 (S.D.N.Y. Jan. 5, 2015) (same) (quoting Jones v. Sullivan, 949 F.2d at 59), R. & R. adopted, 2015 WL 1514837 (S.D.N.Y. April 2, 2015). Accordingly, if a court finds that there is substantial evidence supporting the Commissioner's decision, the court must uphold the decision, even if there is also substantial evidence for the claimant's position. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). “The Court, however, will not defer to the Commissioner's determination if it is the product of legal error.” Dunston, 2015 WL 54169, at *4 (internal quotation marks omitted) (citing, inter alia, Douglass, 496 Fed.Appx. at 156; Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)).
B. Legal Principles Applicable To Disability Determinations
Under the Act, a person meeting certain requirements and considered to have a disability is entitled to disability benefits. 42 U.S.C. § 423(a)(1). The Act defines disability as an “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 12 months.” 42 U.S.C. § 423(d)(1)(A). A claimant's impairments must be “of such severity that he 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. § 423(d)(2)(A).
To determine whether an individual is disabled and therefore entitled to benefits, the Commissioner conducts a five-step sequential analysis. 20 C.F.R. § 404.1520(4). First, the Commissioner must determine whether the claimant is currently engaged in any substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i), (b). If so, the claimant is not eligible for benefits and the inquiry ceases.
If the claimant is not engaged in any such activity, the Commissioner proceeds to the second step and must determine whether the claimant has a severe impairment, which is an impairment or combination of impairments that significantly limits the claimant's ability to perform basic work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii), (c). If the claimant does not have an impairment or combination of impairments that are severe, the claimant is not entitled to benefits and the inquiry ends.
If the claimant has a severe impairment or combination of impairments, the Commissioner continues to step three and must determine whether the impairment or combinations of impairments is, or medically equals, one of the impairments included in the “Listings” of the regulations contained at 20 C.F.R. Part 404, Subpart P, Appendix 1. If the claimant's impairment or impairments meet or medically equal one of the Listings, the Commissioner will presume the claimant to be disabled, and the claimant will be eligible for benefits. 20 C.F.R. §§ 404.1520(a)(4)(iii), (d).
If the claimant does not meet the criteria for being presumed disabled, the Commissioner continues to step four and must assess the claimant's residual functional capacity (“RFC”), which is the claimant's ability to perform physical and mental work activities on a sustained basis despite his impairments. The Commissioner then determines whether the claimant possesses the RFC to perform the claimant's past work. 20 C.F.R. §§ 404.1520(a)(4)(iv), (f), (h). If so, the claimant is not eligible for benefits and the inquiry stops.
If the claimant is not capable of performing prior work, the Commissioner must continue to step five and determine whether the claimant is capable of performing other available work. 20 C.F.R. §§ 404.1520(a)(4)(v), (g), (h). If the claimant, as limited by his RFC, can perform other available work, the claimant is not entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4)(iv), (v). The claimant bears the burden of proof for the first four steps. Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). Once the claimant has established that he is unable to perform his past work, however, the Commissioner bears the burden of showing at the fifth step that “there is other gainful work in the national economy which the claimant could perform.” Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998) (internal quotation marks omitted).
BACKGROUND
A. Nazario's Medical History
This medical history section sets forth the facts that the Court deems most helpful in understanding the nature of the case and the positions of the parties. Thus, the information below is related to Nazario's musculoskeletal impairments, “which are the primary cause of [her] disability” for the relevant period. (Pl. Mem. at 20.)
Other of Nazario's impairments, both severe and non-severe, addressed in the record but not the focus of the instant motions, include, among others, depression, diabetes, obesity, colitis, and epileptic seizures, the last of which was the basis for the determination that Nazario was disabled as of December 4, 2013.
“Pl. Mem.” refers to Nazario's Memorandum Of Law In Support Of Plaintiff's Motion For Judgment On The Pleadings at Dkt. 19.
1. Medical Record Evidence Prior To The Alleged Onset Date Of July 1, 2012
Nazario was diagnosed with epilepsy as a child but rarely had episodes until September 2011, when she had a seizure that left her unconscious and caused urinary incontinence and arm twisting and numbness. (R. 52, 56.) On March 13, 2012, Nazario established treatment with neurologist Dr. Lyzette Velazquez for her seizures. (R. 335.) Nazario reported that, following her September 2011 seizure, she experienced episodes of numbness in her left hand two to three times a week that radiated to her face and lefthand tonic posturing that caused her to unintentionally drop items. (R. 335.) Dr. Velazquez's examination revealed axial loading in the neck, decreased pin-prick sensation in the left upper and lower extremities, heel walking demonstrating sensory defect, paraspinal tenderness in the left upper and lower extremities, and iliotibial band tenderness, but found normal motor strength and muscle tone in all extremities. (R. 33738.) Dr. Velazquez diagnosed Nazario with epilepsy, cervical spondylosis with myelopathy, and lumbrosacral neuritis, and prescribed the anti-seizure medication Keppra. (R. 339.)
At a March 20, 2012 follow-up with Dr. Velazquez, Nazario reported that she was taking Keppra which was controlling her seizures. (R. 340.) An April 17, 2012 magnetic resonance imaging (“MRI”) of the brain revealed a moderate-sized region of gliosis and encephalomacia involving the right parietal and right posterior temporal lobes. (R. 272.) An electroencephalogram (“EEG”) performed that day was normal. (R. 341.)
On April 24, 2012, a physician's assistant at Hercules Medical, Edwin Quinones, assessed Nazario for back, neck and shoulder pain, finding reduced cervical spinal range of motion but no tenderness in her lumbar spine, normal gait, and normal motor strength and muscle tone in all extremities. (R. 276-78.)
2. Medical Record Evidence During The Relevant Period Between July 1, 2012 and December 3, 2013.
On August 13, 2012, Nazario saw physiatrist Dr. Joshua Lehman for neck and low back pain. (R. 457.) According to Dr. Lehman's treatment notes, Nazario had an electromyography (“EMG”) of her upper extremities on June 1, 2012 that documented left C5 and C6 radiculopathy, left S1 and S2 radiculopathy, and peripheral polyneuropathy. (Id.) Nazario reported pain in her upper extremities at a 2/10 level, low back pain that radiated to her left thigh, and that she occasionally took Aleve with some relief. (Id.)
Dr. Lehman conducted a physical examination that revealed mild tenderness to palpation of the cervical paraspinals and left scalenes; left shoulder flexion to 150 degrees; left shoulder abduction to 140 degrees; decreased sensation to light touch diffusely in the left upper extremity; an inability to elicit left biceps reflex; an inability to elicit patellar and Achilles reflexes; and positive Speed's, Yergason's, and empty can signs in the left shoulder. (R. 458.) Dr. Lehman's physical examination also found normal cervical range of motion; normal lumbar range of motion; full strength in all extremities; intact sensation in the lower extremities; and a negative straight leg raising test. (Id.) Dr. Lehman diagnosed cervical radiculopathy, left shoulder biceps tendinitis, and lumbar radiculopathy, and prescribed physical therapy and the muscle relaxant Flexeril and recommended an MRI of the cervical spine. (Id.)
At a September 10, 2012 appointment with Dr. Lehman, Nazario reported improved lower back pain and the absence of radiating pain in the upper extremities, but increased neck pain at a 8/10 scale. (R. 455.) A physical examination revealed tenderness to palpation of the left cervical paraspinal muscles and scalenes; severe tenderness of the left shoulder on palpation of the bicep tendon; a 4/5 strength in the left shoulder flexion and handgrip; inability to elicit left triceps reflexes; decreased sensation to light touch on the ulnar aspects of her forearm; and positive Yergason's, empty can, and Hawkin's signs in her left shoulder. (Id.) Nazario also had 5/5 strength in the remaining upper extremities and lower extremities; normal lumbar range of motion; no tenderness to palpation in the lower back; negative straight leg raise tests bilaterally; and a negative Spurling sign. (Id.) Dr. Lehman again prescribed physical therapy, Flexeril, and recommended an MRI of the cervical spine. (Id.)
A September 13, 2012 cervical spine MRI showed straightening of the cervical lordosis and a mild diffuse disc bulge at the C5-C6 level that caused mild to moderate compression of the spinal cord. (R. 273.)
At an October 10, 2012 follow-up appointment with Dr. Lehman, Nazario reported continued neck pain radiating into her upper extremity at a 8/10 level, but improved lower back pain at a 1-2/10 level. (R. 453.) Dr. Lehman found Nazario's condition essentially unchanged and again prescribed physical therapy and Flexeril, along with the pain medication Celebrex, and recommended an MRI of the left shoulder. (R. 454.) An October 22, 2012 MRI of the left shoulder revealed a mild partial thickness tear of the supraspinatus tendon, a tear of the labrum, and small joint effusion, but no full thickness tear of the rotator cuff. (R. 274.)
On November 7, 2012, Nazario again reported that her back pain had improved but that her pain was at a 8/10 level. (R. 451.) Dr. Lehman's physical examination findings were largely unchanged, but tenderness in the cervical spine was now mild and Nazario's cervical range of motion and rotation was further reduced. (R. 452.) In addition to physical therapy and Flexeril, Dr. Lehman referred Nazario to an orthopedist for surgical evaluation of her left rotator cuff tear. (Id.)
On November 26, 2012, Nazario saw orthopedist Dr. Albert Graziosa for an initial orthopedic consultation for her left shoulder. (R. 294.) Dr. Graziosa noted that Nazario reported left shoulder pain that had affected her sleep and ability to reach overhead since July 2012 and that an MRI of Nazario's left shoulder showed a partial-thickness tear of the distal supraspinatus with a torn labrum. (Id.) On examination, Nazario had tenderness to palpation and positive impingement. (R. 295.) Her left shoulder abduction was to 100 degrees, forward flexion was to 120 degrees, drop arm test was positive, and Speed's test was negative. (Id.) Dr. Graziosa noted that they discussed left shoulder surgery. (Id.) He prescribed physical therapy and Tramadol. (R. 305-06.)
At a December 5, 2012 appointment with Dr. Lehman, Nazario denied any low back pain and noted that, while her neck pain had improved, it continued to radiate to her upper left extremity at a 8/10 level. (R. 449.) Nazario reported relief from physical therapy, Flexeril, and a cervical cortisone injection, and that she had a shoulder surgery scheduled with Dr. Graziosa for January 2013. (Id.) Results from Dr. Lehman's physical examination were largely unchanged except forward shoulder flexion was increased, and Nazario had bilateral knee pain. (R. 449.)
Due to lack of insurance coverage, Nazario did not have the left shoulder surgery. (See R. 58, 366, 409.)
At a December 27, 2012 follow-up appointment, Dr. Velazquez noted that Nazario reported not having had a seizure since September 2011, but was still experiencing numbness on the left side of her face and tingling in the left hand about three times a week. (R. 347.) Nazario's physical examination revealed normal muscle tone and strength in all extremities. (R. 348-49.) Her sensory exam showed decreased pin-prick sensation in her left upper and lower extremities and heel walking. (R. 349.) Nazario's coordination was normal bilaterally, but her reflexes were below average on both sides. (Id.) Dr. Velazquez assessed epilepsy, cervical spondylosis with myelopathy, lumbosacral neuritis, and rotator cuff syndrome. (R. 350.) She increased Nazario's Keppra dosage. (Id.)
On December 31, 2012, Nazario saw Hercules Medical neurologist Dr. Terry Sasaki for lower back at a 8/10 level, neck pain at a 10/10 level, and shoulder pain radiating into the left forearm. (R. 239.) A physical examination revealed tenderness of the shoulder and cervical and lumbar regions, but normal motor, sensation, coordination, gait, and reflexes. (Id.) Dr. Sasaki assessed Nazario for obesity, diabetes, high cholesterol, epilepsy, polyneuropathy, lumbar radiculopathy, and cervical radiculopathy and indicated treatment with trigger point injections, physical therapy, exercise, stretching, diet/nutrition, and a neurosurgical consultation. (Id.)
On April 8, 2013, Nazario reported to Dr. Velazquez that her seizures were being controlled with Keppra and that she had not had a “big ... episode[ ]” since April 2012, but that she still had minor seizures one to two times weekly. (R. 414.) Dr. Velazquez noted that Nazario continued to have left arm tonic posturing and that Keppra was giving her anxiety. Dr. Velazquez's physical examination findings were unchanged. (R. 416.)
On July 18, 2013, Nazario returned to Dr. Lehman, reporting neck and shoulder pain at a 8/10 level, tingling in her left upper extremity, increased pain with sitting and standing for long periods, inability to lift her left arm, and hip pain at a 7-8/10 level. (R. 366-67.) She stated she was not taking any pain medication. (R. 366.) A physical examination revealed tenderness from palpation in the cervical spine; decreased mobility of the left shoulder and cervical spine; reduced left arm sensation and strength; and full right arm strength. (R. 368.) Dr. Lehman's impressions were cervical radiculopathy, left shoulder labral tear, and left shoulder rotator cuff tear. (Id.)
At a July 22, 2013 appointment with Dr. Velazquez, Nazario again reported that her medication was working to control big seizure episodes. (R. 409.) On examination, Dr. Velazquez found decreased cervical spine range of motion with pain, paraspinal tenderness, decreased pin-prick sensation in the left upper and lower extremities, but normal muscle tone, motor strength, and coordination. (R. 411-12.) Dr. Velazquez recommended home exercises and aspirin. (R. 412.)
On December 4, 2013, Nazario reported to Dr. Velazquez that she again was experiencing seizures. (R. 404.) Dr. Velazquez's findings on examination were substantially similar to those in the July 2013 appointment, except Nazario's cervical spine range of motion was further decreased. (R. 406-07.) Dr. Velazquez again recommended home exercises and aspirin, and increased Plaintiff's Keppra dosage. (R. 407-08.)
B. Opinion Evidence
The record contains numerous medical source opinions of which six are relevant to the issues on the motions before the Court.
1. Dr. Lyzette Velazquez, Treating Neurologist
Dr. Velazquez completed a medical opinion form on January 2, 2013. (R. 317-23.) Dr. Velazquez noted that Nazario's last generalized seizure was in September 2011 and that Nazario was responding to Keppra, although Nazario still had sensory defects on the left side of her face and arm. (R. 317.) In that regard, Dr. Velazquez noted touch and pin-prick abnormalities on the left side. (R. 320.) Otherwise, Dr. Velazquez found that Nazario had normal cranial nerves, normal deep tendon reflexes, normal strength, normal motor strength in all extremities, normal gait, normal heel and toe walking, normal grip strength, normal rapid alternating movements, and normal fine manipulation. (R. 31719.) She opined that, aside from her left shoulder injury, Nazario had no limitations in her ability to lift, carry, stand, walk, sit, push, or pull. (R. 321-22.)
2. Dr. Graziosa, Orthopedic Surgeon
On January 4, 2013, Dr. Albert Graziosa opined, based on an examination of Nazario in late November 2022, that Nazario could occasionally lift up to five to ten pounds and was limited in her ability to push and/or pull with the upper extremities due to her left shoulder. (R.296, 300.) He assessed no other limitations for standing, walking, or sitting. (R. 296.) Dr. Graziosa indicated that Nazario needed surgery on her left shoulder. (R. 298.)
3. Dr. Pelczar-Wissner, Consultative Examiner
On January 15, 2013, Dr. Catherine Pelczar-Wissner completed an internal medicine consultative examination of Nazario. (R. 324-28.) Nazario reported some low back pain, neck and shoulder pain at a 5/10 level, and a history of seizures, bilateral carpal tunnel release surgery, vertigo, ulcerative colitis, and diabetic neuropathy. (R. 32425.) Nazario stated that she prepared only light meals because her hand would go numb and drop food, and was able to clean weekly, do laundry biweekly, shower, dress, watch TV, and shop but that her friends help her carry things. (R. 325.) On physical examination, Nazario had a mildly antalgic gait, could only take two steps on her heels and toes, and could only squat halfway down. (R. 326.) She did have a normal stance and was able to change, get on and off the exam table, and rise from a chair without help or difficulty. (Id.) Nazario's cervical spine flexion was 30 degrees, extension was 15 degrees, and rotation was to 45 degrees on both sides. (Id.) No abnormality was found in the thoracic spine and a straight leg raising test was negative. (Id.) Nazario did report discomfort when turning both ways, especially when turning right. (Id.) Examination also detected a marked limitation in range of motion in Nazario's left shoulder, but a full range of motion in all other upper and lower extremities. (R. 327.)
On neurological examination, Nazario had physiologic and equal deep tendon reflexes and decreased sensation to light touch and pin-prick in her left lower extremity. (Id.) Nazario had full strength in the upper and lower extremities and intact hand and finger dexterity, though only a 4/5 grip strength bilaterally. (Id.) Dr. Pelczar-Wissner also reviewed Nazario's prior imaging and physical therapy appointments. (Id.) Dr. Pelczar-Wissner's diagnostic notes found that Nazario had neck pain with disc problems, cervical radiculopathy, lumbosacral radiculopathy, bilateral carpal tunnel syndrome, diabetic neuropathy in the left lower extremity, abnormal brain MRI, internal derangement in her left shoulder with tears, a history of vertigo, low back pain, and a history of ulcerative colitis. (R. 328.)
Dr. Pelczar-Wissner opined that Nazario had marked restrictions for heavy lifting activities, push/pull activities, and overhead activities with the left upper extremity. (R. 328.) She also noted that Nazario should not drive or operate heavy machinery because of her seizures and that Nazario had moderate restrictions for grip and grab activities because of her carpal tunnel syndrome. (Id.)
4. Dr. Lehman, Treating Physiatrist
In his July 18, 2013 treatment notes, Dr. Joshua Lehman, a doctor of osteopathic medicine, opined that Nazario was 100% disabled in her ability to work and could not tolerate sedentary work because of left shoulder weakness, left shoulder pain, and neck pain. (R. 368.) Dr. Lehman noted that Nazario was unable to sit for more than 10 to 15 minutes without severe neck pain, her prognosis was poor, and her condition was likely to exceed 12 months duration. (Id.)
Also on July 18, 2013, Dr. Lehman completed a Medical Impairment Questionnaire. Dr. Lehman listed his diagnoses of cervical radiculopathy, left rotator cuff tear, and left shoulder labrum tear and noted that his prognosis for Nazario was poor. (R.358.) He noted clinical findings of decreased cervical spine and left shoulder range of motion; pain on palpation in the cervical spine and left shoulder; decreased sensation to light touch in the left upper extremities; decreased reflex in the left biceps; positive Spurling test; and positive empty can sign. (Id.) In support of his diagnosis, Dr. Lehman identified Nazario's test results from her June 1, 2012 EMG, September 13, 2012 MRI of the cervical spine, and October 22, 2012 MRI of the left shoulder. (R. 359.) He described Nazario's pain as sharp, aching, and constant in her neck, upper back, and left shoulder. (R. 359-60.) Dr. Lehman indicated that Nazario's level of pain was a 7-8/10 and that he had been unable to completely relieve pain with medication or physical therapy. (R. 360.) He opined that, in an eight-hour day, Nazario could sit for three hours, stand/walk for three hours, and would have to take unscheduled breaks to rest every 15-20 minutes with each break lasting 10-15 minutes. (R. 360, 363.) Dr. Lehman also assessed that Nazario could occasionally lift and carry up to ten pounds with her right upper extremity only; had marked limitations to grasping, fingering, and reaching with her left upper extremity; had minimal limitations using the right upper extremity; and could not perform repetitive movements with the left upper extremity. (R. 361-62.) He opined that Nazario could not push, pull, or kneel, frequently had pain severe enough to interfere with attention and concentration, and would be absent more than three times per month. (R. 363-64.)
5. Dr. Gerard, Treating Internist
On April 22, 2014, internist Dr. Monique Gerard of Hercules Medical completed a Multiple Impairment Questionnaire assessing Nazario. Dr. Gerard reported that she had treated Nazario since May 22, 2012. (R. 388.) Dr. Gerard diagnosed Nazario with cervical radiculopathy and a rotator cuff tear. (Id.) She listed Nazario's MRIs of her cervical spine and left shoulder as supporting her diagnosis. (R. 389.) Dr. Gerard described Nazario's pain as sharp, fairly constant, and incapable of being relieved by pain medication. (R. 389-90.) Dr. Gerard opined that, in an eight-hour workday, Nazario could sit for less than one hour, stand and walk for less than one hour, and would have to get up regularly and move around for ten minutes. (R. 390.) Dr. Gerard opined that Nazario could occasionally lift and carry up to five pounds and had marked limitations for reaching. (R. 390-92.) Dr. Gerard opined that Nazario would need to regularly take unscheduled breaks 15 to 30 minutes in length and would likely be absent from work more than three times a month. (R. 393-94.) Dr. Gerard noted that Nazario's pain would frequently interfere with her attention and concentration. (R. 393.) Dr. Gerard also stated that physical therapy and medication had been ineffective, and that Nazario was totally disabled. (R. 394.)
Although the signature on the Questionnaire is illegible (R. 395), the 2019 ALJ concluded that Dr. Monique Gerard had completed the form. (R. 573.)
6. Dr. Appel, Consultative Examining Orthopedic Surgeon
On March 18, 2019, independent examining orthopedic surgeon Dr. Mark Appel reviewed Nazario's medical records, performed a clinical evaluation, and completed a Spinal Impairment Questionnaire. Dr. Appel opined that Nazario's symptoms from July 1, 2012 through December 3, 2012 would have limited her ability to work because of fear of additional seizures, limited use of the left upper extremity, and neck pain. (R. 880.) Dr. Appel diagnosed Nazario with seizure disorder, trochanteric bursitis to both hips, traumatic dislocation of her left shoulder, lumbago, and cervical radiculopathy. (R. 866.) He opined that, in an eight-hour workday, Nazario could sit, stand, and walk for less than one hour, could occasionally lift and carry up to ten pounds, and could never push, pull, kneel, bend, or stoop. (R. 869-70, 872.) Dr. Appel stated that Nazario would have to take hourly unscheduled breaks, and that her condition interfered with her ability to keep her neck in a constant position and would require her to be absent more than three times a month. (R. 871.)
On March 18, 2019, Nazario presented with pain in her neck, low back, left shoulder, and hip at a 7/10 level. (R. 875.) Physical examination revealed forward tilt and inability to straighten up as she walked, a waddling gait, the inability to heel and toe raise, and the inability to squat. (R. 876.) Dr. Appel assessed decreased range of motion in the cervical spine, lumbar spine, and both shoulders, atrophy in the left forearm, tenderness to palpation, spasms in the neck and lumbar spine, bilateral trochanteric bursa tenderness, and bilateral straight leg raise test to 40 degrees. (R. 876-877.)
C. The May 27, 2014 Hearing and ALJ Feuer's Decision
1. Nazario's Testimony
Nazario was born on October 15, 1964 and graduated with an associate's degree in secretarial studies from Bronx Community College. (R. 43.) From 1998 to 2011, she worked as a legal secretary until she was laid off because the firm had lost a client while she was on medical leave after having an emergency hysterectomy (R.44-50.) After being laid off, she unsuccessfully looked for similar work for seven months, while also attending physical therapy three times a week for tears in her shoulder caused by the September 2011 seizure. (R. 49-53.) She did not collect unemployment or apply for worker's compensation. (R. 49.)
The 2014 ALJ estimated that Nazario was looking for work until July 1, 2012. (R. 61.)
Nazario testified that she had her first and second big seizures since childhood in September 2011 and April 2012, after which she suffered from pain and was unable to lift her left, non-dominant arm. (R. 55-57, 68.) At the time of the 2014 hearing, she was having approximately six mini seizures a week that lasted up to five minutes that left her left arm sore for an hour afterwards and caused left arm twisting and pain in her shoulder and back. (R. 58, 68, 70-72.) Nazario testified that she had constant shoulder and low back pain that radiated to her buttocks and legs (R. 68-70, 74), and neuropathic pain in her upper arms and legs. (R. 73-74.) She had numbness in her legs when standing or sitting and experienced low back spasms when sitting or walking. (R. 63-64, 75.) She could stand for five minutes and sit for ten minutes at a time before feeling leg numbness and burning. (R. 74-76.) She could carry a maximum of one to two pounds. (R. 76-77.) Climbing stairs was extremely painful. (R. 78) Her pain interfered with her ability to focus. (R. 84.) Nazario estimated that she could only use the computer for five minutes before experiencing numbness and tingling in her hand. (R. 65.)
Nazario testified that, prior to falling on black ice in February 2014, she could stand and walk around for 15 to 20 minutes. (R. 68-69, 75-76.)
Nazario lived with her boyfriend, who did all the cleaning and grocery shopping. (R. 62-63.) She could not do any cooking or laundry. (R. 78.) She did not take public transportation. (R. 79-80.) Her boyfriend drove her to all her appointments, including to the 2014 Hearing. (R. 63, 79.) Her boyfriend also helped her shower, dress, and wash her hair. (R. 77-78.) Nazario tried to walk for approximately 30 minutes daily, stopping when her leg went numb and lying down afterwards for an hour to alleviate pain. (R. 63 64.) She reported needing to lay down between five and seven times a day to relieve low back spasms. (R. 64.)
Nazario said that she was supposed to have left shoulder surgery in January 2013, but was unable to because of a lapse in insurance coverage for the entirety of 2013. (R. 58-59.) Nazario also reported side effects to several of her medications. One medication made her drowsy and non-functioning. (R. 64-65.) She testified that Dr. Lehman was skeptical about giving her pain medications because of potential adverse interactions with Keppra. (R. 65, 85.) She said Tylenol relieved pain for only approximately one hour. (R. 86.)
2. The 2014 ALJ's Decision
The 2014 ALJ found that as of December 4, 2013, the medical evidence established that Nazario had been experiencing multiple daytime episodes of seizure-related arm jerking. (R. 32.) Accordingly, ALJ Feuer concluded that Nazario was disabled as of December 4, 2013 because her epileptic condition had deteriorated to the point that she could not engage in sustained work. (R. 32.)
Prior to December 4, 2013, however, ALJ Feuer found that Nazario “had the [RFC] to perform sedentary work ... except that she was limited to occasionally lifting and carrying ten pounds and frequently lifting and carrying five pounds[;] ... no lifting above the left shoulder level and only occasional use of the left arm with limited reaching, handling and fingering on that side.” (R. 28.) Nazario also could never climb ladders and ropes but could occasionally climb ramps and stairs. (Id.)
ALJ Feuer considered the opinions of Nazario's treating and consultative physicians. ALJ Feuer afforded Dr. Graziosa's opinion “significant weight” because it was “well supported by medically acceptable diagnostic techniques.” (R. 29.) He also gave “significant weight” to Dr. Pelczar-Wissner's opinion because it was supported by medically accepted diagnostic techniques and consistent with the record. (R. 30.)
The 2014 ALJ gave only “partial weight” to Dr. Lehman's opinion regarding postural limitations, stating it was neither well supported by medically acceptable diagnostic techniques nor the record. (R. 30-31.) ALJ Feuer also only gave “partial weight” to Dr. Gerard's opinion because the evidence “better justif[ies] fewer limitations on the claimant's ability to sit, stand, and walk than Dr. Gerard states” and because her assertions are not explained by the medical record. (R. 31.) ALJ Feuer assigned “little weight” to Dr. Velazquez's opinion because it “was inconsistent with the other substantial evidence of record in which physical treating sources assessed exertional, postural and manipulative limitations” and because “she treated [Nazario] specifically for her epilepsy and not for her musculoskeletal conditions.” (R. 30.)
ALJ Feuer also found that Nazario's statements “concerning the intensity, persistence and limiting effects of [her] symptoms [were] not entirely credible prior to December 4, 2013.” (R. 28-29.)
D. The 2018 Court Decision And Remand
After the Appeals Council denied review of the 2014 ALJ's decision, Nazario commenced a civil action in this court. (R. 1-5.) Both parties moved for judgment on the pleadings pursuant to Rule 12(c). (R. 673.) District Court Judge Nelson S. Roman granted Nazario's motion and denied the Commissioner's. See Nazario v. Berryhill, No. 16-CV-01091, 2018 WL 3475471 (S.D.N.Y. July 18, 2018).
Judge Roman found that the 2014 ALJ “improperly discredited key portions of Dr. Lehman's findings regarding Plaintiff's mobility and postural limitations in favor of the opinions of physicians who had only limited clinical interactions with Plaintiff.” (R. 679.) The 2014 ALJ inappropriately applied the treating physician rule by failing to find serious errors in Dr. Lehman's findings; failing to elaborate how Dr. Lehman's opinion was unsupported by medically acceptable diagnostic testing; and failing to elaborate how substantial evidence on the record did not support his findings. (R. 682.) The ALJ's decision also included “no reference to Dr. Lehman's contemporaneous clinical notes” nor “any explanation of how they are inconsistent with his ultimate conclusions.” (R. 68283.)
Judge Roman also determined that the 2014 ALJ relied heavily on the weight assigned to each physician to assess Nazario's credibility in describing her symptoms and limitations. Accordingly, “[i]f the ALJ were to re-weigh the medical opinions of the consulting and treating physicians under the ‘treating physician rule,' he may very well determine that Plaintiff's subjective reports are supported by the medical evidence.” (R. 687.) For these reasons, the Judge vacated the ALJ's decision and ordered that the case be remanded for further consideration. (R. 687.) On November 9, 2018, the Appeals Council remanded the case to an ALJ “for further proceedings consistent with the order of the court.” (R. 692.)
E. The April 23, 2019 Hearing And ALJ Gonzalez's Decision
1. Nazario's Testimony
In her second ALJ hearing, Nazario testified that she had lost her legal administrative job in 2011, after which she looked for work until the pain in her left shoulder was overwhelming. (R. 596-97.) Her September 2011 seizure had left her with two tears in her left arm that prevented her from sitting and typing and made her hands go numb. (R. 597.) Between 2011 and December 2013, she experienced seizure triggers weekly. (R. 597.) She would feel numbness and tingling in her left hand that would travel up her arm to her brain, causing her to fall and lose consciousness. (R. 598.) She was never hospitalized for these events. (Id.)
Nazario testified that she was treated by Dr. Velazquez for epilepsy from 2011 to 2013. (R. 598-99.) Dr. Velazquez conducted physical examinations during their appointments and prescribed her Keppra. (R. 604.) Nazario started seeing Dr. Lehman for her shoulder and back; he prescribed anti-inflammatory medications and physical therapy, but they had minimal effect. (R. 599-601.) Nazario had scheduled shoulder surgery with Dr. Graziosa, but her insurance coverage lapsed before she could have the surgery. (R. 599-600.) Nazario testified that she last saw Dr. Gerard in 2012 and that Dr. Gerard treated her for diabetes, high blood pressure, and cholesterol, but not for her shoulder impairment or her seizures. (R. 601-02.)
Nazario testified that she did not drive. (R. 597.) She estimated that 95% of her former job was clerical and that she had sat behind a computer for eight hours a day. (R. 605-06.) She stated that it was difficult for her to use computers in 2012 because her hands would go numb. (R. 606.) She estimated that, in 2012, she could sit for 10 to 15 minutes and lift up to five pounds. (R. 607.)
2. VE Testimony
The VE testified that Nazario's past relevant work was a legal administrator performed at a sedentary exertion level. (R. 609.) The ALJ posed several hypotheticals to the VE. Assuming an individual of the same age, education, and work history as Nazario with the RFC to engage in a full range of sedentary work who could frequently handle and finger bilaterally; occasionally reach overheard with the non-dominant left upper extremity; occasionally push and pull with the left upper extremity; could not drive or operate machinery; could not work at unprotected heights; and could not climb ladders, ropes, or scaffolds, the VE concluded that Nazario's former work as a legal administrator could still be performed. (R. 609-10.) The ALJ then asked the VE to assume the same hypothetical person could sit only three hours and stand or walk for only three hours in an eight-hour workday; in response, the VE said that the work of a legal administrator could not be performed. (R. 610.)
The listing for a legal administrator is DOT 119.267-026 and the SVP is 7 or skilled. Although, generally, the exertional level is light, the VE stated that the job was actually performed at a sedentary level. (R. 609.)
If the same hypothetical person had either a marked or a moderate limitation in using her left hand and fingers for fine manipulation, then she would not be able to perform the same work. (R. 612-13.) However, an additional marked limitation on pushing and pulling with the left upper extremity would not preclude Nazario's past work. (R. 613-14.) Finally, the VE testified that if an individual were to be absent more than three times a month, they would be precluded from all gainful employment. (R. 614.)
3. The 2019 ALJ's Decision
ALJ Gonzalez issued his decision on May 30, 2019, employing the requisite five-step analysis. (R. 559-76.) The ALJ found that Nazario had not engaged in substantial gainful activity during the period from her alleged onset date of July 1, 2012 through December 3, 2013. (R. 561.) At step two, ALJ Gonzalez determined that, through December 3, 2013, Nazario had several severe impairments: left shoulder tear; cervical spine and lumbar spine degenerative disc disease and radiculopathy; diabetes mellitus; seizure disorder; and vertigo. (R. 562.)
At step three, ALJ Gonzalez found that Nazario's impairments did not meet or equal any of the Listings. (R. 563.) ALJ Gonzalez specifically referenced, and set forth the requirements for, Listings 1.02 (major dysfunction of a joint due to any cause), 1.04 (disorders of the spine), and 11.02 (epilepsy). (R. 564.)
ALJ Gonzalez then found that, through December 3, 2013, Nazario had the RFC to perform sedentary work, except that she could frequently hand and finger bilaterally; occasionally reach overhead with her non-dominant left upper extremity; and occasionally push and pull with the non-dominant left upper extremity. (R. 565.) Nazario could not drive or operate machinery, work at unprotected heights, or climb ropes or ladders. (Id.) At step four, ALJ Gonzalez found that, through December 3, 2013, Nazario was capable of performing her past work as a legal administrator at the sedentary level. (R. 575.) Accordingly, Nazario was not disabled.
In making his RFC determination, the ALJ considered the notes and opinions of Nazario's physicians. In relevant part, the ALJ assigned (1) great weight to Dr. Graziosa's opinion that Nazario could occasionally lift and carry between five and ten pounds, was limited in her ability to push and/or pull with her upper extremities, but was unlimited in sitting, standing, and walking (R. 570); (2) great weight to Dr. Velazquez's opinion that Nazario had no limitations to stand, walk, sit, push, pull, or lift and carry except as related to her left shoulder (id.); (3) some weight to Dr. Pelczar-Wissner's opinion of moderate restrictions for grip and grab activities, marked restrictions for heavy lifting activities, pushing and pulling, and overheard activities with the left upper extremity, and that Nazario should not drive or operate heavy machinery (id.); (4) little weight to Dr. Lehman's opinion that Nazario could sit, stand, and walk for only three hours, could never push or pull, could only occasionally lift and carry up to ten pounds, was unable to use her left upper extremity for repetitive movements, and had marked limitations in her ability to use her upper extremity (R. 571-72); little weight to Dr. Appel's opinion that Nazario could sit, stand, and walk for less than one hour, could occasionally lift and carry up to ten pounds, and could never push, pull, kneel, bend, or stoop (R. 573); and very little weight to Dr. Gerard's opinion that Nazario could sit, stand, and walk for only one hour maximum, could only occasionally lift five pounds, and had marked limitations for bilateral use of the upper extremities (id.).
The ALJ also assessed Nazario's subjective statements about her pain and abilities, determining that they were not entirely consistent with the record. The ALJ specifically noted Nazario's ability to perform certain daily activities, the conservative and sporadic nature of her treatment, her work history, and absence in the medical record of certain positive clinical findings that would support Nazario's statements about pain and functional limitation. (R. 574-75.)
DISCUSSION
Nazario seeks remand of the 2019 ALJ's finding that she is not entitled to DIB for the period of July 1, 2012 to December 3, 2013 on the grounds that (1) the ALJ failed to properly weigh the medical opinion evidence, and (2) the ALJ failed to properly evaluate Nazario's subjective statements. The Court addresses each argument in turn.
I. The 2019 ALJ Did Not Properly Weigh The Opinion Evidence
Nazario argues that the ALJ failed to properly weigh the medical opinion evidence because he assigned greater weight to the opinions of Drs. Velazquez, Graziosa, and Pelczar-Wissner, as compared to those of Drs. Lehman, Gerard, and Appel. The Court agrees.
A. The Treating Physician Rule
An ALJ must evaluate every medical opinion received. Rodriguez v. Colvin, No. 12-CV-3931, 2014 WL 5038410, at *17 (S.D.N.Y. Sept. 29, 2014). Under the regulations applicable to Nazario's disability claim, a treating physician's opinion will be given controlling weight if 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.” 20 C.F.R. § 416.927(c)(2); see also Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). Conversely, an ALJ is not required to assign a treating physician's opinion controlling weight when it is contradicted by substantial evidence in the record. Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).
The regulations for evaluating medical opinions were amended in 2017, but the changes are only applicable to claims filed on or after March 27, 2017. See 20 C.F.R. §§ 404.1527, 404.1520c; Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 5844, 5867-68 (Jan. 18, 2017). Because Nazario's claim was filed before that date, the Court applies the earlier regulations.
When an ALJ gives a treating physician's opinion less than controlling weight, the ALJ must give “good reasons” for doing so. 20 C.F.R. § 416.927(c)(2) (stating that the Administration “will always give good reasons in our notice of determination or decision for the weight we give [the claimant's] treating source's medical opinion”); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citing same); Schaal, 134 F.3d at 505 (citing same). “Failure to provide ‘good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand.” Snell, 177 F.3d at 133; see also Schaal, 134 F.3d at 505 (“the Commissioner's failure to provide ‘good reasons' for apparently affording no weight to the opinion of plaintiff's treating physician constituted legal error”).
If the ALJ decides not to give controlling weight to a treating physician's opinion, the ALJ must determine how much weight, if any, to give that opinion. Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019). In doing so, the ALJ must “explicitly consider” the following, non-exclusive “Burgess factors”: “(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Selian, 708 F.3d at 418 (citing Burgess, 537 F.3d at 129) (citing 20 C.F.R. § 404.1527(c)(2)). While failure to explicitly apply the Burgess factors is a procedural error, a reviewing court will not reverse the Commissioner's decision when the Commissioner has given “good reasons” for its weight assignment. Estrella, 925 F.3d at 96. “Good reasons” are reasons that assure the reviewing court that “the substance of the treating physician rule was not traversed.” Id.
“The same factors [as applied to determine the weight given to a treating doctor's opinion] also must be considered with respect to what weight to give non-treating doctors, ‘with the consideration of whether the source examined the claimant or not replacing the consideration of the treatment relationship between the source and the claimant.'” McGinley v. Berryhill, No. 17-CV-2182, 2018 WL 4212037, at *12 (S.D.N.Y. July 30, 2018), R. & R. adopted, 2018 WL 4211307 (S.D.N.Y. Sept. 4, 2018) (quoting Butts v. Commissioner of Social Security, No. 16-CV-874, 2018 WL 387893, at *6 (N.D.N.Y. Jan. 11, 2018)). Although the Second Circuit has cautioned that ALJs should not rely heavily on the findings of consultative physicians that arose from a single examination, Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990), a consultative physician's opinion may nonetheless constitute substantial evidence. See Petrie v. Astrue, 412 Fed.Appx. 401, 406 (2d Cir. 2011) (affirming ALJ reliance on findings of two consultative examiners in declining to afford treating physicians' opinions controlling weight).
B. Analysis
The following table summarizes the weight afforded to the medical opinions:
Doctor
Specialty
Treating or Consulting
Date of Opinion
2014 ALJ Weight
2019 ALJ Weight
Velazquez
Neurologist
Treating (epilepsy)
1/2/2013
Little
Great
Graziosa
Orthopedic surgeon
** (left shoulder surgical rec.)
1/4/2013
Significant
Great
Pelczar- Wissner
Internist
Consulting Examiner
1/15/2013
Significant
Some
Lehman
Physiatrist
Treating
7/18/2013
Partial
Little
Gerard
Internist
Treating (diabetes)
4/22/2014
Partial
Very little
Appel
Orthopedic
surgeon Consulting Examiner
3/18/2019
N.A.
Little
** As discussed below, Dr. Graziosa's status as treating or consulting is not straightforward.
Nazario contends that the ALJ erred by (1) giving only little weight to the opinions of her treating physician, Dr. Lehman, and the examining orthopedist, Dr. Appel; and (2) very little weight to her treating physician, Dr. Gerard; while instead (3) giving great weight to the opinions of her treating neurologist, Dr. Velazquez, and orthopedic surgeon, Dr. Graziosa; and (4) some weight to consulting examiner Dr. Pelczar-Wissner. The Court will analyze the ALJ's assessment of each physician's opinion, starting first with the physicians to whom the ALJ gave little weight, followed by those to whom the ALJ gave some or great weight.
1. Dr. Lehman, Treating Physiatrist
The ALJ assigned only little weight to both Dr. Lehman's Multiple Impairment Questionnaire and the opinion in his narrative report. (R. 571-72.) Nazario argues that the ALJ should have afforded Dr. Lehman's opinions controlling weight - and, if not, the greatest weight - because Dr. Lehman (1) treated Nazario since August 2012; (2) treated her spine impairments; (3) provided evidentiary support for his opinions; and (4) is a board-certified physiatrist opining in his area of specialty. (Pl. Mem. at 23.) Nazario also argues that the ALJ mischaracterized the record and failed to identify substantial evidence in conflict with Dr. Lehman's opinions. (Pl. Mem. at 18-20.) The Commissioner argues that the ALJ's assessment was proper because Dr. Lehman's opinions were inconsistent with his own treatment notes and the record overall. (Def. Mem. at 16-18.) The Court agrees with Nazario.
Judge Roman identified several errors in the 2014 ALJ's assessment of Dr. Lehman's opinion. The court faulted the ALJ for affording Dr. Lehman less than controlling weight without either performing the requisite analysis or providing an adequate explanation for doing so. (R. 682-83.) The 2019 ALJ addressed and cured the 2014 ALJ's procedural deficiencies. The ALJ referenced the District Court's decision, and acknowledged that he “must be guided by the ‘treating physician rule' when weighing Dr. Lehman's opinions, including giving deference to the views of the treating physician.” (R. 572-73.) The ALJ then expressly stated he was affording Dr. Lehman little weight because of the (1) conservative and sporadic nature of his treatment; (2) inconsistencies between his opinion and his own treatment notes; (3) lack of support in the medical record; and (4) inconsistencies with other opinions, specifically those of Drs. Graziosa, Velazquez, and Pelczar-Wissner. (R. 572-73.) Although the ALJ followed the required procedural steps, he erred in his analysis with respect to each of the reasons put forth to justify his weighting of Dr. Lehman's opinion.
First, the ALJ found Dr. Lehman's opinion that Nazario had severe limitations on sitting, standing, walking, and use of the left upper extremity, would be absent more than three days a month, and that Nazario was “one hundred percent disabled” to be inconsistent with Nazario's “conservative and sporadic treatment.” (R. 571-72.) As the ALJ noted, Dr. Lehman examined Nazario on a monthly basis from August 2012 through December 2012, with one additional visit in July 2013. (R. 572.) Throughout the course of treatment, Dr. Lehman consistently prescribed conservative measures consisting of Flexeril, physical therapy, and injections for pain management. (R. 450, 452, 454, 456, 458.)
Nazario argues, correctly, that, because gaps in her treatment were in a period when she was not insured, those gaps cannot be held against her. (Pl. Mem. at 19, see R. 58-59, 599-600.) Nothing in the record indicates that Nazario's monthly appointments with Dr. Lehman were interrupted for any reason other than her lapse in insurance. “‘[I]t would fly in the face of the plain purposes of the Social Security Act' to deny benefits on the basis of a claimant's inability to pay for treatment.” Burger v. Astrue, 282 Fed.Appx. 883, 884 (2d Cir. 2008) (quoting Shaw v. Chater, 221 F.3d 126, 133 (2d Cir. 2000)). The ALJ's reasoning transgressed that principle.
Nazario also correctly argues that the ALJ cannot impose his own notion of what constitutes appropriate medical treatment. (See Pl. Mem. at 19.) “[C]haracterizing ‘conservative physical therapy, hot packs, EMG testing' as substantial evidence that the plaintiff was not physically disabled and using such evidence to discount a valid medical opinion violate[s] the treating physician rule.” Molina v. Kijakazi, No. 21-CV-3869, 2022 WL 16946823, at *11 (S.D.N.Y. Nov. 15, 2022) (quoting Shaw, 221 F.3d at 134); see also Burgess, 537 F.3d at 129 (stating that a treating physician's opinion is not to be discounted “merely because he has recommended a conservative treatment regimen”); Cohens-Aikens v. Saul, No. 19-CV-4443, 2020 WL 3126172, at *12 (S.D.N.Y. June 13, 2020) (“The Second Circuit has cautioned against discounting the opinion of a treating physician merely because the physician recommended a conservative treatment regimen”) (internal quotation marks omitted); Schmidt v. Commissioner of Social Security, No. 20-CV-3594, 2022 WL 1540054, at *6 (E.D.N.Y. May 16, 2022) (“the ALJ's determination that plaintiff's treatment was ‘routine and conservative' was an impermissible substitution of her own opinion for that of medical experts”). Nazario's conservative and sporadic treatment regime was therefore not a good reason for the ALJ to discount Dr. Lehman's opinion.
Second, the ALJ explained that Dr. Lehman's opinion conflicted with the doctor's own clinical findings. (R. 571-73.) The ALJ summarized Dr. Lehman's treatment of Nazario and cited several examples from Dr. Lehman's treatment notes showing that Nazario “was not nearly as limited as opined.” (R. 571.) They included (1) improved low back pain (see R. 450, 452, 454, 456); (2) normal lumbar range of motion (see R. 452, 453, 455, 458); (3) full strength and sensation in the lower extremities (see R. 447, 449, 451, 453, 455, 458); and (4) bilateral negative straight leg raise testing (see R. 450, 452, 454, 455, 458.) The ALJ also alluded to Dr. Lehman's having consistently observed that Nazario was “in no acute distress” (see R. 447, 449, 451, 453, 455, 458).
Nazario contends that the normal findings referenced by the ALJ are irrelevant to Dr. Lehman's opinions which “are so clearly based on abnormalities involving Mrs. Nazario's cervical spine, shoulders, and arms.” (Pl. Reply at 1.) Nazario faults the ALJ for cherry-picking results and ignoring Nazario's medical abnormalities to reduce the weight of Dr. Lehman's opinion. (Pl. Reply at 3.) Nazario is correct; the ALJ selectively relied on Dr. Lehman's treatment notes and improperly “set his own expertise against that of a physician.” Balsamo, 142 F.3d at 81.
“Pl. Reply” refers to Plaintiff's Reply Memorandum In Further Support Of Plaintiff's Motion For Judgement On The Pleadings, at Dkt. 23.
“[W]hile a physician's opinion might contain inconsistencies and be subject to attack, a circumstantial critique by non-physicians, however thorough or responsible, must be overwhelmingly compelling in order to overcome a medical opinion.” Shaw, 221 F.3d at 135 (internal quotation marks omitted). The Court does not find the ALJ's analysis to be compelling. Dr. Lehman's opinion was based on his review of MRI results and EMG tests of Nazario's cervical spine and left shoulder. (R. 359.) In support of his diagnosis, Dr. Lehman listed his clinical findings of decreased motion in the cervical spine, pain on palpation, decreased sensation to light touch in the left shoulder, pain with palpation of the left shoulder, positive empty can test, and positive painful arc. (R. 358.)
Although the ALJ acknowledged and incorporated some positive findings related to the left shoulder and cervical spine in the RFC, he emphasized the “normal” low back results over abnormal results directly cited in Dr. Lehman's opinion. (R. 566-67.) The fact that there are some normal results, however, is insufficient reasons to ignore the functional limitations prescribed by Dr. Lehman. See Morris v. Colvin, No. 15-CV-5600, 2016 WL 7235710, at *9 (E.D.N.Y. Dec. 14, 2016) (“the ALJ's reliance on [a treating physician's] medical notes indicating that plaintiff had normal gait and normal motor and sensory exams does not justify his rejection of the treating physician's opinions”). The ALJ does not explain how these normal low back results contradict Dr. Lehman's findings of upper back, neck, and left shoulder pain and weakness impacting Nazario's ability to sit, stand, and walk. (R. 359-61.) Nor does the ALJ identify any reasons for placing more importance on findings related to the low back than those of the cervical spine, neck, and left shoulder when evaluating Nazario's postural limitations. This was error; “[t]he ALJ is not permitted to substitute his own expertise or view of the medical proof for the treating physician's opinion.” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015). “Simply put, [the ALJ] was not in a position to determine whether [Nazario's normal low back results] should invalidate the physical limitations set forth” by Dr. Lehman, particularly given the constellation of Nazario's impairments. Vellone v. Saul, No. 20-CV-261, 2021 WL 319354, at *9 (S.D.N.Y. Jan. 29, 2021), R. & R. adopted, 2021 WL 2801138 (S.D.N.Y. July 6, 2021).
Third, the ALJ stated that Dr. Lehman's opinions conflicted with other medical evidence on the record. (R. 572-73.) The ALJ cited Dr. Graziosa's findings of a negative Speed's test and an ability to abduct (R. 572 referencing R. 295), and Dr. Pelczar-Wissner's findings of a “normal stance, lack of assistive devices, only mild antalgic gait, stable and non-tender joints, negative straight leg testing, full strength in the upper and lower extremities, intact hand and finger dexterity, and a full range of motion of the elbows, forearms, wrists, [hips], knees, and ankles.” (R. 572-73 referencing R. 326-27.) However, the ALJ again failed to identify how those assessments contradict Dr. Lehman's opined postural limitations. Nor did the ALJ explain why he placed importance on those allegedly contradictory findings over multiple other consistent findings on the record, including reduced range of motion and rotation in the cervical spine and shoulder. (R. 326-27, 407, 412, 425.) Instead, the Court engaged in impermissible cherry-picking. Gough v. Saul, 799 Fed.Appx. 12, 14 (2d Cir. 2020) (“We fear that the ALJ cherry-picked evidence from the record to support his conclusion that Gough could work full time even though the record as a whole suggested greater dysfunction”); Vellone, 2021 WL 319354, at *6 (finding ALJ's RFC determination was unsupported by substantial evidence where the ALJ “cherry[-]picked treatment notes that supported his RFC determination indicating normal gait and spine] while ignoring equally, if not more significant evidence [indicating abnormal gait and worsening lower back pain]”); Ayala v. Heckler, No. 83-CV-4862, 1984 WL 538, at *4 (S.D.N.Y. June 27, 1984) (“If the ALJ place[s] undue emphasis on one portion of the record in disregard of evidence to the contrary, the court may interfere with the Secretary's conclusion”) (internal quotation marks omitted).
As a further reason for weighting Dr. Lehman's opinion as he did, the ALJ explained that Dr. Lehman's opinion was inconsistent with other opinions of record, specifically those of Drs. Velazquez, Graziosa, and Pelczar-Wissner. (R. 573.) But, as the Court explains below, the ALJ improperly assessed each of those doctor's opinions, particularly in their weighting relative to Dr. Lehman's opinion. Moreover, Dr. Lehman's opined limitations for Nazario's ability to lift, carry, grasp, finger, reach, push, and pull are generally consistent with those opined by all physicians except one, Dr. Velazquez. (Compare R. 361-64 with R. 296, 300, 319-22, 328, 391-94, 867, 872.)
Similarly, Dr. Lehman's opinion that Nazario was limited to sitting and standing/walking no more than three hours each in a workday, is generally consistent, and even less restrictive than the opinions of Drs. Gerard and Appel that Nazario could not sit and stand/walk for even that much time. (Compare R. 368 with R. 390-91, 869.) Notably, Drs. Lehman, Gerard, and Appel all had reason, and expertise, to carefully evaluate Nazario from head to toe (and in Dr. Appel's case, Nazario's entire record), being, respectively, a physiatrist, internist, and examining orthopedist. That is in contrast to both doctors who indicated by checkmark that Nazario had no limitations on ability to sit, stand, and walk; Dr. Velazquez was a neurologist treating Nazario for epilepsy, while Dr. Graziosa was consulted specifically for potential shoulder surgery. Finally, Dr. Pelczar-Wissner provided no opinion on Nazario's ability to sit, stand, and walk at all. A lack of opinion does not amount to a conflicting opinion. The ALJ thus gave short shrift to the relatively consistent opinions of the three doctors, two of whom were treating doctors, most apt to evaluate Nazario's ability to sit and stand/walk, while elevating the opinions of two doctors whose focus was on other maladies and one doctor who did not even opine on Nazario's ability to sit or stand/walk.
And, perhaps most egregiously, Dr. Lehman and Dr. Gerard, both treating doctors, as well as Dr. Appel, opined that Nazario would be absent from work more than three times a month because of her impairments. (R. 364, 394, 871.) No other doctor, not even Dr. Velazquez, opined on the extent to which Nazario would be absent from work. In other words, there is no inconsistent opinion evidence with respect to that opinion; Dr. Lehman's opinion was entirely consistent with the only other doctors who opined on the absence issue.
The case previously was remanded because the 2014 ALJ had neither addressed the treating physician factors nor provided sufficient explanation for discounting Dr. Lehman's opinion. While the 2019 ALJ did explicitly refer to the relevant factors, and recited the treating physician rule, he did not provide good reasons to discount Dr. Lehman's opinion as he did, thus failing to address the substantive deficiencies of the 2014 decision. That failure warrants remand.
2. Dr. Gerard, Treating Internist
Dr. Gerard's opinion was similar to Dr. Lehman's opinion, but with even greater limitations. Dr. Gerard opined that Nazario could sit for only zero to one hour and stand/walk for only zero to one hour in an eight-hour workday; had marked limitations in bilateral repetitive reaching, handling, fingering, or lifting; could perform no pushing, pulling, bending, or stooping; and that Nazario was totally disabled, would require unscheduled breaks, would be absent more than three times per month, and would frequently have her attention and concentration interfere with her work. (R. 573.) Nazario argues that the ALJ erred in assigning Dr. Gerard's opinion very little weight for substantially the same reasons as he did for Dr. Lehman and that the ALJ failed to analyze Dr. Gerard's opinions under the treating physician rule and the Burgess factors. (Pl. Mem. at 23.) The Court is satisfied that the ALJ adhered to the procedural requirements of the treating physician rule. Whether the ALJ's reasoning was supported by substantial evidence is a different question.
Although he did not explicitly state he was doing so, the ALJ did implicitly consider the relevant factors. The ALJ noted that Dr. Gerard was a treating physician from whom Nazario sought treatment for diabetes, hypertension, and cholesterol. (R. 569.) Nazario testified to the same in her 2019 hearing; Dr. Gerard was her long-time primary care doctor who treated her for diabetes, high blood pressure, and cholesterol, but not for her shoulder impairment or her seizures. (R. 601-02.)
The ALJ determined that Dr. Gerard's opinion, like Dr. Lehman's, was unsupported by medical evidence and inconsistent with the record. (R. 573-74.) While acknowledging abnormal results, the ALJ again cited to the medical findings of normal range of motion in the lumbar spine, full strength of extremities, and improved lower back pain as evidence that Nazario had fewer limitations than Dr. Gerard suggested. (R. 573.) The ALJ also cited to the sporadic and conservative nature of Nazario's treatment. (R. 573.) For the same reasons stated above in regard to Dr. Lehman, the ALJ's analysis was faulty. Nazario's conservative and sporadic treatment with Dr. Gerard does not undermine her opinion. And, the ALJ provided no explanation as to why, in light of the positive findings of abnormal results, the negative findings were inconsistent with Dr. Gerard's opinion.
The ALJ did appropriately discount Dr. Gerard's opinion that Nazario had a “total disability” as vague and conclusory, with no specifically defined functional limitations. Indeed, the “ultimate finding of whether a claimant is disabled and cannot work ... [is] ‘reserved to the Commissioner.'” Snell, 177 F.3d at 133 (quoting 20 C.F.R. § 404.1527(e)(1). Appropriately weighting one part of Dr. Gerard's opinion while inappropriately weighting the rest does not save the ALJ's decision from remand, however, especially when it is within the ALJ's discretion to afford weight to one portion of a treating physician's opinion but not another. See Annabi v. Berryhill, No. 16-CV-9057, 2018 WL 1609271, at *16 (S.D.N.Y. March 30, 2018) (“an ALJ is [not] required to accept or reject a medical expert's opinion in toto. Some portions may be entitled to greater weight than other portions”); see also Zongos v. Colvin, No. 5:12-CV-1007, 2014 WL 788791, at *9 (N.D.N.Y. Feb. 25, 2014) (the ALJ was “well within his discretion when electing not to afford controlling weight to . one aspect of [a treating physician's] opinion”).
3. Dr. Appel, Examining Orthopedic Surgeon
Dr. Appel's opinion essentially echoed those of Dr. Gerard and Dr. Lehman. The ALJ assigned little weight to Dr. Appel's completed questionnaire because it was based on a one-time examination from 2019, nearly six years after the relevant period. (R. 573.) Nazario argues that the ALJ ignored that Dr. Appel's opinions were retrospective and based on a review of Nazario's relevant records and testing. (Pl. Mem. at 23-24.) The Commissioner contends that Dr. Appel's opinion is not retrospective and that his assessment is inconsistent with the record. (Def. Mem. at 21-22.)
In his questionnaire, Dr. Appel exclusively listed his March 18, 2019 examination as grounds for his opinion and identified only his clinical findings in support of his diagnosis. (R. 866.) However, Dr. Appel's examination included both a physical evaluation of Nazario's neck, low back, left shoulder, and hip (R. 876-877), and a full review of her medical records since 2012 (R. 877-80.) Dr. Appel's review of Nazario's medical record was thorough - he listed findings from various imaging studies, including the 2012 MRIs of her brain, cervical spine, and left shoulder and EMG tests; summarized previous medical evaluations, treatment notes, and questionnaires from Nazario's other physicians; and listed her prescribed medications and physical therapy treatments. (R. 877-80.) Thus, although rendered in 2019, Dr. Appel's opinion indisputably relates back, at least in part, to the relevant period and is based on records from that period. Indeed, the 2019 hearing was specifically targeted to only the 2012-2013 period (R. 588), so it is reasonable to infer that Dr. Appel rendered his opinion with that context in mind. Since “[n]either a treating nor examining physician's opinion should be dismissed merely because it is retrospective,” Dr. Appel's opinion warrants reassessment. Edel v. Astrue, No. 6:06-CV-0440, 2009 WL 890667, at *21 (N.D.N.Y. March 30, 2009) (citing Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir. 1981)).
The Commissioner contends that “in any event” Dr. Appel's opinion that Nazario could sit, stand, and walk for less than one hour was an “outlier[] in a record that included [] less-restrictive functional assessments.” (Def. Mem. at 22.) But, as explained above, Dr. Appel's opinion was far from an outlier when considering the opinions of Dr. Lehman and Dr. Gerard and taking into account the limited focus of the other doctors. Regardless, although the ALJ stated that “Dr. Appel rendered opinions consistent only with the performance of an exceptionally reduced range of sedentary exertion level work,” the sole reason given by the ALJ for assigning Dr. Appel's opinion little weight is that it was based on a one-time examination six years after the relevant period. (R. 573.) The ALJ did not say that he discounted Dr. Appel's opinion because of its inconsistency with the record, and “[a] reviewing court may not accept appellate counsel's post hoc rationalizations for agency action.” Snell, 177 F.3d at 134 (internal quotation marks omitted).
4. Dr. Velazquez, Treating Neurologist
Dr. Velazquez assessed that other than her left shoulder injury, for which Nazario experienced some sensory deficits on her left side, Nazario had no limitations in her ability to lift, carry, stand, walk, sit, push, or pull. (R. 321-22.) Nazario argues that the ALJ erred in assigning great weight to the opinion of Dr. Velazquez because Dr. Velazquez did not “consider[] the combined impact of all of Ms. Nazario's conditions on her functioning, certainly not Plaintiff's spinal conditions, which the ALJ deemed to be severe.” (Pl. Mem. at 20.) According to Nazario, the 2019 ALJ improperly deviated from the 2014 ALJ's decision to afford little weight to Dr. Velazquez's opinion because Dr. Velazquez treated Nazario solely for epilepsy. (Pl. Mem. at 20, see R. 30.) The Commissioner contends that Dr. Velazquez performed numerous full-system physical examinations of Nazario and thus was qualified to offer an opinion on Nazario's overall functioning. (Def. Mem. 2021.) The Court agrees with Nazario.
The ALJ assigned Dr. Velazquez's opinion great weight because of her treating relationship with Nazario and its consistency with the clinical evidence. That makes sense with respect to Nazario's neurological functioning and epilepsy, which is Dr. Velazquez's specialty and the purpose for which Nazario was seeing her. It does not make sense, however, with respect to Nazario's musculoskeletal and postural limitations. Although Dr. Velazquez assessed Nazario's motor skills, sensory skills, coordination, reflexes, movement, gait, and stance as part of her neurological exams, her treatment was limited to Nazario's epileptic seizures. (R. 336-38, 343-45, 347-49, 405-407, 41012; see also R. 604.) Dr. Velazquez's treatment plan for Nazario consisted of prescribing and increasing the dosage of her anti-seizure medication, Keppra, ordering an MRI of the brain, and ordering an EEG because of fluctuating neurological deficits; she never prescribed treatment related to Nazario's musculoskeletal conditions. (R. 339, 341, 345, 350, 354.)
The ALJ did not address this discrepancy between Dr. Velazquez's specialized treatment of Nazario and the musculoskeletal and postural limitations underlying the opinions of Drs. Lehman, Gerard, and Appel. Nor did the ALJ provide any explanation for why Dr. Velazquez's opinion merited great weight in 2019 when the 2014 ALJ gave it little weight. The Court does not mean to suggest that a medical doctor in a particular field is not qualified to opine about a patient's condition that is not within the doctor's specialty. But the regulations instruct the ALJ to take treating physician's area of specialization into account, 20 C.F.R. § 404.1527(c)(5), and, given the circumstances of this case, which include the contrary opinions of doctors focused specifically on the limitations that are the subject of dispute, the ALJ should have directly addressed the role of the doctor's specialty. See Mercado v. Berryhill, No. 16-CV-6087, 2017 WL 3328177, at *14 (S.D.N.Y. Aug. 3, 2017) (assigning little weight to a podiatrist's opinion on the plaintiff's neck, back, and knee); Muro v. Berryhill, 412 F.Supp.3d 254, 265 (E.D.N.Y. 2019) (“An ALJ does not need to give substantial weight to opinions that exceed a physician's specialty”).
Moreover, Dr. Velazquez's opinion is inconsistent with the record, which the 2014 ALJ noted as justification for assigning Dr. Velazquez's opinion little weight. (R. 30.) The 2019 ALJ did acknowledge that the record supported limitations on Nazario's ability to handle, finger, reach overhead, push, pull, and do other activities beyond what Dr. Velazquez opined. (R. 570.) The ALJ did not, however, appreciate the extent to which Dr. Velazquez's opinion (not Dr. Lehman's) is an outlier. Every physician, except Dr. Velazquez, opined some restrictions on Nazario's ability to push and pull. (Compare R. 322 with R. 300 (Dr. Graziosa), 328 (Dr. Pelczar-Wissner), 364 (Dr. Lehman), 394 (Dr. Gerard), 872 (Dr. Appel).) Every physician, except Dr. Velazquez, who opined on Nazario's ability to grasp, grip, and reach found some restrictions. (Compare R. 319 with R. 328 (Dr. Pelczar-Wissner), 361-62 (Dr. Lehman), 391-92 (Dr. Gerard).) And, while all the doctors, including Dr. Velazquez, found that Nazario's ability to lift and carry was limited by her left shoulder, every other physician except Velazquez opined that Nazario could only occasionally lift up to between five and ten pounds or had marked restrictions for heavy lifting. (Compare R. 321 with R. 296 (Dr. Graziosa), 328 (Dr. Pelczar-Wissner), 361 (Dr. Lehman), 391 (Dr. Gerard), 869-70 (Dr. Appel).)
The stark inconsistency between Dr. Velazquez's opinion and those of the other doctors with respect to Nazario's upper extremities highlights the problem with the ALJ's having elevated Dr. Velazquez's opinion about Nazario's lower extremities over the opinions of other doctors. The ALJ again cherry-picked. He recognized that Dr. Velazquez's upper extremity opinions were suspect yet fully endorsed her lower extremity opinions, even though Dr. Velazquez had no more basis to evaluate one as compared to the other and despite her focus being on neurological, not musculoskeletal and postural, limitations. Notably, the only other doctor who opined no limitations on Nazario's ability to sit, stand, and walk was Dr. Graziosa, who treated Nazario solely for her left shoulder, not for anything related to her ability to sit, stand, or walk.
Additionally, Dr. Velazquez's opinion includes inconsistencies with her own treatment notes. At various examinations of Nazario, Dr. Velazquez found decreased pin-prick sensation in the lower extremities, heel walking, paraspinal tenderness in the left upper and lower extremities, reduced cervical spine range of motion, and iliotibial band tenderness. (See R. 337-38, 348-49, 406-07, 411-12.) Yet, in her medical opinion, Dr. Velazquez stated that Nazario was unlimited in her ability to walk and had normal heel and toe walking. (R. 319.) The ALJ did not account for those discrepancies.
The ALJ's errors in assessing Dr. Velazquez's opinion are even more apparent when compared to his analysis of Dr. Lehman's opinion. For instance, although both Dr. Velazquez and Dr. Lehman were identified as treating physicians, the ALJ did not apply the same standards to their opinions. In her opinion questionnaire, Dr. Velazquez wrote that her frequency of treatment was every three to four months. (R. 317.) The ALJ mentions that Dr. Velazquez's treatment of Nazario was “sporadic” in support of his conclusion that Nazario was not so disabled as to require more regular treatment (R. 568), but unlike his assessment of Dr. Lehman's opinion, the ALJ did not discount the weight given to Dr. Velazquez because of that sporadic treatment.
In short, the ALJ did not assess Dr. Velazquez and Dr. Lehman's opinions under the same standard, did not properly consider their areas of specialty relative to each other, insufficiently assessed the extent to which Dr. Velazquez's opinion, not Dr. Lehman's, is an outlier, and provided no good reason for assigning Dr. Velazquez's opinion great weight when the 2014 ALJ had assigned it little weight (indeed, the ALJ did not even attempt to do so). Each and all of these together were error.
5. Dr. Graziosa, Orthopedic Surgeon
Dr. Graziosa opined that Nazario could occasionally lift and carry five to ten pounds, was limited in her ability to push and pull in her upper extremities due to her left shoulder, but had no limitation on her ability to sit, stand, or walk. The ALJ afforded great weight to Dr. Graziosa's opinion based on Dr. Graziosa's treating relationship with Nazario, his expertise in orthopedic surgery, his intent to perform left shoulder surgery, and consistency with the medical evidence. (R. 570.) According to Nazario, the ALJ's treatment of Dr. Graziosa as a treating physician violated the 2019 District Court's order, in which Judge Roman referred to Dr. Graziosa as a “consulting physician” who had “limited interactions with [Nazario].” (Pl. Mem at 20 referencing R. 683.) Regardless of how Dr. Graziosa is categorized, the ALJ improperly assessed his opinion.
Dr. Lehman referred Nazario to Dr. Graziosa for evaluation of her left shoulder and potential surgery. (R. 452.) Although Dr. Graziosa expressly refers to his examination of Nazario as an “initial orthopedic consult,” that description is hardly dispositive of the nature of the relationship. (R. 303.) Dr. Graziosa evaluated Nazario's left shoulder, finding some tenderness to palpation and a positive impingement exam, but a negative Speed's test, and an ability to abduct and internally rotate with some discomfort. (R. 295.) Dr. Graziosa noted that he and Nazario had multiple discussions about surgical intervention for the shoulder and that he prescribed physical therapy and therapeutic treatments. (R. 295, 307.) Nazario scheduled shoulder surgery for January 2013 with Dr. Graziosa until a lapse in Nazario's insurance forced the procedure's cancellation. (R. 308, see also R. 58, 599.) The record thus supports a conclusion that Nazario was to be treated by Dr. Graziosa following the initial consult but that their course of treatment was cut short. (R. 58, 445, 599.) The record does not show that Dr. Graziosa was retained merely to provide a one-time consultation for purposes of providing an opinion for a disability determination. In short, Dr. Graziosa's relationship with Nazario does not neatly correspond with that of a consultative physician conducting a brief, one-time exam, or a treating doctor who evaluates and treats a patient over a period of time.
Even if Dr. Graziosa were considered a treating physician, substantial evidence does not support the ALJ's decision to assign Dr. Graziosa's opinion great weight beyond evaluation of the left shoulder. Nor does it support assigning greater weight to Dr. Graziosa's opinion on Nazario's postural limitations over Dr. Lehman's opinion. Although qualified as an orthopedic surgeon, Dr. Graziosa's treatment of Nazario was limited to a single appointment for her left shoulder. Judge Roman aptly noted the narrow scope of Dr. Graziosa's role, stating that “the record suggests that his orthopedic consult with Plaintiff was limited to her left shoulder pain.” (R. 683.) While Dr. Graziosa mentioned that Nazario was being “managed aggressively for cervical lordosis and diffuse [spinal disc] bulging by Dr. Lehman” (R. 294), and generally checked that Nazario was experiencing no conditions outside of her left shoulder that were significant to recovery (R. 300), his own physical examination notes solely list evaluative findings of Nazario's left shoulder. (R. 294-95.) And unlike Dr. Lehman's opinion questionnaire, which cites multiple clinical findings and diagnostic tests to support his opinion that Nazario has limitations on her ability to sit, stand, and walk, Dr. Graziosa's opinion questionnaire does not mention clinical findings or diagnostic testing beyond the MRI of Nazario's shoulder. Yet, the ALJ inexplicably cited Dr. Graziosa's opinion as conflicting evidence meriting a reduction in the weight assigned to Dr. Lehman's opinion.
While the ALJ recognized that the record supported additional limitations on Nazario's ability to handle, finger, and reach overhead beyond what Dr. Graziosa opined, the ALJ summarily stated, without citation to the record, that Dr. Graziosa's opinion was consistent with the clinical evidence that Nazario was capable of performing sedentary exertion level work. (R. 570.) Such summary conclusion, in the context of the contrary evidence and opinions of record, does not constitute substantial evidence supporting the ALJ's weighting of Dr. Graziosa's opinion insofar as the ALJ relied on it with respect to Nazario's ability to sit, stand, and walk. See Almonte v. Commissioner of Social Security, 21-CV-3091, 2022 WL 4451042, at *8 (E.D.N.Y. Sept. 23, 2022) (faulting the ALJ for “summarily conclud[ing] that [a doctor's] opinion was consistent with and supported by the overall record as well as the examination results”) (internal quotation marks omitted); Laracuente v. Colvin, 212 F.Supp.3d 451, 467 (S.D.N.Y. 2016) (directing the ALJ on remand to provide reasons beyond “conclusory statements and generic references to the record as a whole”).
6. Dr. Pelczar-Wissner, Consultative Examiner
After her one-time consultative examination of Nazario, Dr. Pelczar-Wissner opined that Nazario could not engage in heavy lifting or push/pull activities with her left upper extremity; that Nazario should not drive or operate machinery; and that Nazario had moderate restrictions for grip and grab activities. Dr. Pelczar-Wissner did not provide an opinion on Nazario's ability to sit, stand, or walk, nor did she reference Nazario's postural limitations over prolonged periods of time. The ALJ afforded some weight to Dr. Pelczar-Wissner's opinion. (R. 570.) Nazario argues that the ALJ erred in relying on Dr. Pelczar-Wissner's opinion at all because it was vague, based on one examination, and unsupported by the medical evidence. (Pl. Mem. at 21-22.) The Commissioner asserts that the ALJ's weighting was proper. The Court finds that the ALJ's reasons for allotting Dr. Pelczar-Wissner's opinion some weight are sound, but the ALJ nonetheless erred in giving the opinion of Dr. Pelczar-Wissner more weight than Dr. Lehman's opinion.
The ALJ properly acknowledged the limited nature of Dr. Pelczar-Wissner's evaluation and appropriately reduced the weight given to her opinion. In assigning only some weight, the ALJ noted Dr. Pelczar-Wissner's status as a one-time consultative examining source and described her opinion as vague and only somewhat consistent with the record. (R. 570-71.)
Nazario argues that, since Dr. Pelczar-Wissner did not review Nazario's treatment records or imaging studies, her opinion cannot be accorded any weight. (Pl. Mem. at 21, citing Burgess, 537 F.3d at 132.) But Nazario's contention that Dr. Pelczar-Wissner “was not given any of Plaintiff's treatment records nor imaging studies” is incorrect. (Pl. Mem. at 21.) Dr. Pelczar-Wissner's report includes a summary of Nazario's prior treatments and lists the imaging studies performed with their results. (R. 327.) Dr. Pelczar-Wissner also noted that Nazario provided her with copies of her physical therapy appointment records. (Id.)
Unlike in Burgess, Dr. Pelczar-Wissner's report reflects an awareness of the various imaging studies' findings. Compare Burgess, 537 F.3d at 132 (dismissing the testimony of doctors who had either not read the MRI Report or not mentioned its findings) with R. 327 (listing Nazario's EMG, NCS, and MRI results). And, unlike the other cases Nazario cites, the ALJ did not “place primary reliance” on or assign Dr. Pelczar-Wissner's opinion “significant” or “great weight.” See Briggs v. Saul, No. 19-CV-9776, 2021 WL 796032, at *15 (S.D.N.Y. Feb. 26, 2021) (finding the ALJ erred in assigning significant weight to consultative examiner who did not have necessary background information); Forges v. Commissioner of Social Security, No. 15-CV-6082, 2016 WL 3102020, at *7 (E.D.N.Y. June 2, 2016) (finding the ALJ erred in placing primary reliance on consultative examiner whose report was not based on medical records); Jackson v. Colvin, No. 13-CV-5655, 2014 WL 4695080, at *20 (S.D.N.Y. Sept. 3, 2014) (finding the ALJ erred in assigning great weight to a consultative physician because of a lack of supporting documentation and a limited physical assessment.) Rather, recognizing the deficiencies in Dr. Pelczar-Wissner's opinion, the ALJ properly gave it only some weight.
Nazario further contends that Dr. Pelczar-Wissner's opinion that Nazario had a “moderate” limitation is “so vague as to render [it] useless.” (Pl. Mem. at 22, quoting Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000).) The Second Circuit has found that the “use of the terms ‘moderate' and ‘mild,' without additional information, [do] not permit the ALJ ... to make the necessary inference.” Curry, 209 F.3d at 123. Consistent with that directive, the ALJ explicitly stated that “the doctor failed to adequately identify how much weight the claimant could lift, push, or pull, or how often the claimant could reach overheard, grip, or grab. (R. 570-71.) Thus, the ALJ recognized that Dr. Pelczar-Wissner's opinion was “too vague to be entitled to ‘great' weight” and instead gave it only some weight. Gonzalez v. Colvin, No. 15-CV-2159, 2016 WL 5477591, at *17 (E.D.N.Y. Sept. 28, 2016).
Although providing good reasons for assigning some weight to Dr. Pelczar-Wissner's opinion, the ALJ erred in assigning it more weight than that given to Dr. Lehman's opinion. The ALJ cited Dr. Pelczar-Wissner's opinion as evidence that Dr. Lehman's opinions were inconsistent with the record. But as explained above, Dr. Pelczar-Wissner did not offer any opinion on Nazario's ability to sit, stand, and walk, or, for that matter, the extent to which Nazario would be absent from work. Accordingly, Dr. Pelczar-Wissner did not offer a contrary position that would make Dr. Lehman's inconsistent with the record. And, to the extent that there were discrepancies between Dr. Pelczar-Wissner and Dr. Lehman's opinions on Nazario's ability to lift, carry, grip, grab, push, and pull, the ALJ did not provide good reason for relying on the vague opinions of a one-time consultative examiner rather than the specific findings of Nazario's treating physician. See Curry, 209 F.3d 117, 123-24 n.3 (2d Cir. 2000) (holding that the ALJ erred in relying on the vague opinion of a consulting physician especially since the consulting physician's “lack of specificity contrasts sharply with the precise findings made by [plaintiff's] treating physician”); Correa v. Colvin, No. 13-CV-2458, 2014 WL 4676513, at *7-8 (E.D.N.Y. Sept. 19, 2014) (finding that the ALJ erred in relying on a physician's vague opinions in the face of more specific and contradictory ones from treating medical sources).
7. Conclusion About The ALJ's Weighing Of The Opinion Evidence
Overall, the ALJ's analysis of the various medical opinions did not adhere to the requisite legal analysis and was not supported by substantial evidence. Although reciting the relevant factors under the treating physician rule, the ALJ failed to provide good reasons for assigning Dr. Lehman's opinion little weight. The ALJ similarly failed to provide good reasons for his weighting of other treating doctors, and for elevating the opinions of Drs. Velazquez, Graziosa, and Pelczar-Wissner over that of Dr. Lehman, particularly with respect to Nazario's ability to sit, stand, and walk. The district court remanded the 2014 ALJ's decision based on “failure to directly grapple with the merits of Dr. Lehman's opinion or offer any analysis explaining why [Dr. Pelczar-Wissner and Dr. Graziosa's] findings should control.” (R. 684.) The 2019 ALJ has not satisfactorily addressed those issues. And in breaking from the 2014 ALJ to assign Dr. Velazquez's opinion great weight - beyond its application to Nazario's epilepsy and seizures - the 2019 ALJ has introduced new error. Accordingly, the ALJ's assessment of the medical opinion evidence is a basis for remand.
II. The ALJ Did Not Properly Evaluate Nazario's Subjective Statements.
Nazario argues that the ALJ erred in discrediting her subjective account of the persistence, intensity, and limiting effects of her symptoms. (Pl. Mem. at 24-27). The Commissioner maintains that the ALJ's decision was properly supported by substantial evidence. (Def. Mem. at 22.) Because the ALJ's assessment of the medical opinion evidence may have influenced his evaluation of Nazario's subjective statements, the ALJ will need to consider the question anew.
A. Legal Standard for Credibility Determinations
It is within the ALJ's “discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant.” Aronis v. Barnhart, No. 02-CV-7660, 2003 WL 22953167, at *6 (S.D.N.Y. Dec. 15, 2003) (quoting Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)). In evaluating a claimant's own description of her impairments, an ALJ undertakes a two-step process. See 20 C.F.R. § 404.1529. At the first step, the ALJ determines whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). If the claimant does suffer from such an impairment, at the second step, the ALJ evaluates “the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities.” SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996); see also 20 C.F.R. § 404.1529(c).
When assessing the credibility of a claimant's statements about the intensity, persistence, or functionally limiting effects of his symptoms, the ALJ considers the following types of evidence, in addition to any objective medical evidence that substantiates the claimant's statements:
(1) The individual's daily activities; (2) [t]he location, duration, frequency, and intensity of the individual's pain or other symptoms; (3) [f]actors that precipitate and aggravate the symptoms; (4) [t]he type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; (5) [t]reatment, other than medication, the individual receives or has received for relief of pain or other symptoms; (6) [a]ny measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and; (7) [a]ny other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
SSR 96-7p, 1996 WL 374186, at *3. When the ALJ rejects a plaintiff's testimony in light of objective medical evidence and other factors he deems relevant, he must explain that decision “with sufficient specificity to enable the [reviewing] Court to decide whether there are legitimate reasons for the ALJ's disbelief and whether his decision is supported by substantial evidence.” Calzada v. Astrue, 753 F.Supp.2d 250, 280 (S.D.N.Y. 2010) (alteration in original) (quoting Fox v. Astrue, No. 6:05-CV-1599, 2008 WL 828078, at *12 (N.D.N.Y. March 26, 2008)); see also Rosario v. Astrue, No. 12-CV-3594, 2013 WL 3324299, at *8 (S.D.N.Y. June 25, 2013) (ALJ's credibility determination entitled to deference unless it is “not set forth with sufficient specificity”) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984)).
B. Analysis
The ALJ found that Nazario's “medically determinable impairments [of a shoulder tear, cervical spine and lumbar spine degenerative disc disease and radiculopathy, diabetes mellitus, seizure disorder, and vertigo] could reasonably be expected to cause some of the alleged symptoms”; however, Nazario's “statements concerning the intensity, persistence and limiting effects of these symptoms were not entirely consistent with the medical evidence and other evidence in the record.” (R. 565.) In reaching that conclusion, the ALJ considered Nazario's complaints, the medical record, Nazario's daily activities, the type of treatment she received, and Nazario's work history. (R. 574-75.)
Nazario argues that the ALJ's evaluation was not supported by substantial evidence. The Court agrees; “the ALJ's assessment of Plaintiff's credibility was infected by the ALJ's improper weighing of the opinion evidence,” particularly that of Dr. Lehman whose opinion corresponds with Nazario's claims of disabling pain and difficulty. Cautillo v. Berryhill, No. 17-CV-1356, 2018 WL 1305717, at *30 (S.D.N.Y. March 12, 2018); see also Mack v. Commissioner of Social Security, 2021 WL 3684081, at *18 (S.D.N.Y. July 26, 2021) (“Because...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”); Molina, 2022 WL 16946823, at *9, n. 7 (“Notably, however, a failure to properly evaluate a treating physician's opinion means the ‘credibility evaluation is necessarily flawed.”) (quoting Mortise v. Astrue, 713 F.Supp.2d 111, 124-25 (N.D.N.Y. 2010)). In particular, “[a]s the ALJ erred in discounting Dr. [Lehman's] opinion as to how long [Nazario] could sit, stand, [and] walk .., he similarly erred by rejecting [Nazario's] testimony on these same topics based on a supposed lack of supporting medical evidence. Dubois v. Saul, 18-CV-2415, 2019 WL 5287942, at *24 (S.D.N.Y. Sept. 23, 2019).
In her 2014 hearing, Nazario gave extensive testimony as to her difficulty sitting, walking, and focusing. (R. 63-64, 74-76.) At both hearings, Nazario testified that it was difficult for her to use computers. (R. 65, 606.) Had the ALJ properly weighted the medical opinion evidence, he may have found a sufficient basis for crediting Nazario's testimony regarding her limitations. On remand, the ALJ will need to reassess Nazario's credibility after properly weighing the medical opinion evidence.
III. Timing Of Hearing On Remand
Nazario asks the Court to remand solely for a calculation and award of benefits. The Court recommends denying this request since the record does not lead to a definitive conclusion on Nazario's disability status. See Williams v. Apfel, 204 F.3d 48, 50 (2d Cir. 2000) (directing remand for further proceedings where the record was not sufficiently persuasive regarding plaintiff's disability). In the alternative, Nazario, citing Butts v. Barnhart, asks the Court to remand for a new hearing with a 60-day deadline. (Pl. Mem. at 28, citing 416 F.3d 101, 104 (2d Cir. 2005).) Defendant argues, correctly, that Butts is inapplicable insofar as it required a specific deadline for a new hearing. (Def. Mem. At 25.)
As the Butts panel explained, its decision to impose a 60-day time limit to complete further proceedings was “limited to cases where the claimant is entitled to benefits absent the Commissioner's providing expert vocational testimony about the availability of appropriate jobs.” Butts, 416 F.3d at 104. “In other words, Butts applies only when the burden has shifted at step five of the evaluation process and the claimant is deemed presumptively disabled.” Martin v. Berryhill, No. 17-CV-08640, 2019 WL 1756434, at *7 (S.D.N.Y. Feb. 20, 2019), R. & R. adopted, 2019 WL 1755425 (S.D.N.Y. April 19, 2019).
Here, Nazario is challenging the ALJ's determination prior to step five, before disability has been shown. Nazario does not cite to and “[t]he Court is unaware of any case that has set a time limit where the claimant had not yet been determined to be disabled.” Uffre v. Astrue, No. 06-CV-7755, 2008 WL 1792436, at *8 (S.D.N.Y. April 18, 2008); see also Wright v. Astrue, No. 06-CV-6014, 2008 WL 620733, at *4 (E.D.N.Y. March 5, 2008) (finding it improper to impose a 120-day deadline for a new hearing where claimant had not progressed to step five).
While the Court is sympathetic to the difficulties associated with the length of time this case has taken, it “does not have the power to impose time limits on the Commission's actions upon remand.” Kitt v. Saul, No. 19-CV-6632, 2021 WL 223387, at *10 (S.D.N.Y. Jan. 22, 2021). Nevertheless, the Court expects proceedings on remand to be conducted and resolved as expeditiously as possible. See Uffre, 2008 WL 1792436, at *8.
CONCLUSION
For the reasons stated above, pursuant to sentence four of 42 U.S.C. § 405(g), Nazario's motion should be GRANTED, the Commissioner's motion should be DENIED, and the case should be REMANDED for further proceedings consistent with this order.
PROCEDURES FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Paul A. Engelmayer, U.S.D.J., United States Courthouse, 40 Foley Square, New York, NY 10007, and to the Chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, NY 10007. Failure to file timely objections will result in a waiver of objections and will preclude appellate review.