Rodriguez v. Comm'r of Soc. Sec.

Full title: MELISSA RODRIGUEZ Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY…

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

Date published: Aug 19, 2021

20-CV-3687 (VSB) (RWL) (S.D.N.Y. Aug. 19, 2021)

Opinion

20-CV-3687 (VSB) (RWL)

08-19-2021

MELISSA RODRIGUEZ Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendants.

ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION: SOCIAL SECURITY APPEAL

ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE

Plaintiff Melissa Rodriguez, ¹ represented by counsel, commenced the instant action against the Commissioner of the Social Security Administration (the “Commissioner”) pursuant to the Social Security Act (the “Act”), 42 U.S.C. § 405(g), seeking review of the Commissioner's decision that Rodriguez is not entitled to disability insurance benefits under 42 U.S.C. § 423 et seq. Rodriguez moves for an order to remand this case for further administrative proceedings. (Dkt. 23.) The Commissioner cross-moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules Of Civil Procedure. (Dkt. 27.) For the reasons explained below, this Court respectfully recommends that Rodriguez's motion be GRANTED, the Commissioner's motion be DENIED, and the case be REMANDED.

1 In many of the medical records, Melissa Rodriguez is referred to as Melissa Smith. Rodriguez's application for disability benefits notes that her husband's last name is Smith.

OVERVIEW

Melissa Rodriguez is a 49-year-old woman. (See, e.g., R. 1002 (stating date of birth).²) She suffers from diabetes, obesity, carpal tunnel syndrome, back pain, migraines, extremity pain and numbness related to neuropathy and radiculopathy, ulcers, hiatal hernia, hypothyroidism, post-hysterectomy status (post September 2015), and depressive disorder and anxiety. (R. 18.) As a result of those conditions, she claims that she became eligible for disability benefits starting on February 28, 2012 (the “onset date”).³ (R. 15.) Rodriguez filed an application for benefits on September 24, 2013. (R. 82-83.) Ultimately, Rodriguez's date last insured - the final date on which she was eligible to receive disability benefits - was determined to be December 31, 2015. (R. 16.) She has been represented by counsel through her application process. (See R. 117).

2 “R.” refers to the Administrative Record (Dkt. 18).

3 Rodriguez originally identified the onset date at June 1, 2010, but later changed it. (See R. 266-69.) Some of her medical conditions were not listed on her original application for benefits, but they were present in her medical records, and the Commissioner and ALJ fully considered them in making their determinations below.

This case is somewhat out of the ordinary in that it involves an administrative remand after the Administrative Law Judge (“ALJ”) failed to subpoena records before issuing her first decision. As a result, the medical and procedural history of this case is logically divided into two halves. In the first half, the ALJ obtained medical records - but no medical opinions from any of Rodriguez's numerous treating physicians - that covered January 2012 through November 2013. (R. 82-94 (initial determination), 384-1000 (medical records obtained before initial determination), 96-111 (first ALJ decision, only referencing records up to Exhibit 5F).) The ALJ also received consultative opinions from three non-treating doctors, two who examined Rodriguez and one who did not. (R. 90-92, 1001-07, 1008-12.) The ALJ held a hearing on September 2, 2015, then denied the claim in a written opinion on December 6, 2015. (R. 82-94, 46-81, 96-111.) The Appeals Counsel, however, vacated the ALJ's decision and remanded because, before the first hearing, Rodriguez had noted that her file lacked her medical records from November 2013 onward and had asked the ALJ to subpoena them, which the ALJ did not do. (R. 112-15, 321.)

On remand, the record was augmented with Rodriguez's post-November 2013 medical records, which covered the period from January 2014 through December 31, 2015, the date last insured. (See R. 1013-2871.) As discussed below, those records indicate that Rodriguez's condition changed in several significant respects between the two relevant periods (i.e., between February 2012-November 2013 and January 2014-December 2015). Nevertheless, the ALJ did not receive any updated consultative or non-consultative opinions and still did not receive any opinions from any of Rodriguez's numerous treating physicians, more of whom could be identified in the post-November 2013 records. In other words, the ALJ did not have the benefit of any medical opinion, treating or otherwise, taking into account the two years of medical records for which the case was remanded. Additionally, at a second hearing, the ALJ questioned Rodriguez only cursorily, noting in her written decision that the first hearing was held shortly before the date last insured, but failing to ask Rodriguez about the wealth of significant new information contained in the January 2014-December 2015 records that were obtained since the first hearing.

The ALJ thus erred in multiple respects on remand. The ALJ relied on stale medical opinions, which do not provide substantial evidence to support the ALJ's disability determination. The ALJ also failed to develop the record, both by failing to adequately attempt to obtain opinions from Rodriguez's treating physicians and by inadequately questioning Rodriguez at the second hearing. The ALJ also over-relied on Rodriguez's alleged ability to perform routine daily tasks and ignored evidence of Rodriguez's disabilities. The case should be remanded to allow the ALJ one further opportunity to render a decision free of error.

APPLICABLE LAW

Before providing a more detailed recitation of the factual and procedural history, it is helpful to summarize the standard of review and legal principles that apply to disability claims.

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, 269 (2d Cir. 2008) (remanding for noncompliance with regulation, which resulted in incomplete factual findings)). 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 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, 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. Commissioner Of Social Security, No. 14-CV-3859, 2015 WL 54169, at *4 (S.D.N.Y. Jan. 5, 2015) (quoting Jones, 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, every individual meeting certain requirements and considered to have a “disability” is entitled to disability insurance 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 disability benefits, the Commissioner conducts a five-step inquiry. 20 C.F.R. § 404.1520. 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). If so, the claimant is not eligible for benefits and the inquiry ceases.

If the claimant is not gainfully 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 ceases.

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 those 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 those 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 or her impairments, and determine whether the claimant possesses the RFC to perform the claimant's past work. 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not eligible for benefits and the inquiry ceases.

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), (e). If the claimant 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 she is unable to perform their 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).

FACTUAL AND PROCEDURAL HISTORY

Neither party's recitation of the medical and procedural history is adequate. Rodriguez's moving brief conflates numerous medical visits over large spans of time and, when it does note the date of treatment, fails to identify the treating physician. Defendant's opposition and moving brief identifies the dates of treatment and treating physicians for the records of the medical visits that it discusses but mischaracterizes some of those records and entirely fails to mention other important records. Additionally, neither party followed this Court's instruction to include in their briefs a section or footnote specifically addressing any alleged inaccuracy in the other party's recitation. (Dkt. 19, ¶ 6(b).) Furthermore, neither party adequately limned the chronological relationship of the medical visits, opinion evidence, hearings, and ALJ decisions.

For all of those reasons, the Court provides a relatively comprehensive recitation of the file, highlighting the records most relevant to the Court's analysis. Because the frequency of Rodriguez's medical visits are relevant, and because several of her doctors treated multiple conditions and many of her conditions are interrelated and were treated during the same visits, the Court also recounts the medical history chronologically rather than by ailment.

A. Medical Records Obtained Before The Medical Opinions And First ALJ Decision Were Rendered

The relevant medical records pre-dating the consultative medical opinions and first ALJ decision range from February 27, 2012 through November 15, 2013. (See R. 3841000.)

On February 27, 2012, Rodriguez visited Dr. Libby Mathew, her primary care provider, at Crystal Run Healthcare (“Crystal Run”⁴) complaining of ten-out-of-ten (10/10⁵) abdominal pain radiating to her back. (R. 690-92, 757.) Dr. Mathew referred her to Dr. Alex J. Gershenhorn, who she saw on February 29, 2012 and would continue to see regularly for her stomach issues. (R. 687-89.) That same day, on referral from Dr. Gershenhorn, Rodriguez saw Dr. Scott Hines, whom she would continue to see regularly for her diabetes and related thyroid issues. In her first visit with Dr. Hines, Rodriguez reported fatigue and numbness in her feet. (R. 684-86.)

4 Unless otherwise noted, Rodriguez was treated at Crystal Run.

5 The Court will use the “10/10” numerical convention going forward when referring to Rodriguez's reported level of pain.

One month later, on March 29, 2012, Rodriguez was treated by Nurse Practitioner (“NP”) Barbara Heckman whom she would also see regularly throughout the relevant period, reporting fatigue, numbness in her feet, and abdominal pain. (R. 679-81.) Less than a month later, on April 11, 2012, Rodriguez saw NP Heckman again, still reporting numbness in her feet and abdominal pain. (R. 672-74.) NP Heckman referred Rodriguez to Dr. Zewditu Bekele-Arcuri whom she saw that same day, April 11, 2012. Dr. Bekele-Arcuri diagnosed her with carpal tunnel syndrome and prescribed her two pain medications (gabapentin and tramadol), as well as a muscle relaxant (cyclobenzaprine). (R. 675-78.) On April 19, 2012, Dr. Hines biopsied four nodules from Rodriguez's thyroid. (R. 671.)

Approximately two weeks later, on April 26, 2012, Rodriguez saw NP Heckman again, reporting that her chronic back pain now intermittently radiated into the breast causing her to “catch her breath” from pain and discomfort. NP Heckman also noted “[s]ignificant upper and lower extremity tremors.” (R. 667-670.) NP Heckman referred Rodriguez to Dr. Alex Jaeger, whom Rodriguez saw that same day, and would continue to see regularly for her tremors. Rodriguez reported that she had started suffering tremors in April 2012 and that they started in her hands but spread through her whole body and could be very severe so that she “looked like a bobble head going down a dirt road.” Dr. Jaeger noted that the tremors could be psychogenic (i.e., having a psychological rather than a physical origin) or be a side effect of the gabapentin, which he advised her to stop taking. (R. 664-66.)

Approximately one week later, on May 3, 2012, Rodriguez was again seen by Dr. Mathew. Despite stopping the gabapentin, her tremors had gotten worse, preventing her from functioning. Dr. Mathew agreed with Dr. Jaeger that the tremors may be psychogenic and that Rodriguez should receive an electroencephalography (an “EEG, ” i.e. a scan that captures brain functioning). (R. 660-62.) The EEG was conducted the same day by Dr. Bekele-Arcuri and revealed nothing unusual except for “rare electrode and muscle/chewing artifacts, ” the consequences of which are not explained in the record. (R. 663.) On May 4, 2021, a brain MRI was also conducted because of “olfactory hallucinations, ” and results were unremarkable. (R. 754.)

Later that month, on May 18, 2012, Rodriguez was again treated for abdominal pain with Dr. Gershenhorn, who advised her on diet and medication. (R. 657-59.) Three days later, on May 21, 2012, Rodriguez saw Dr. Bekele-Arcuri again, this time for a nerve conduction study. The study showed evidence of lumbar radiculopathy (i.e., nerve root compression that causes pain in the leg⁶). Although not showing definitive evidence of peripheral neuropathy (i.e., weakness of the hands and feet caused by nerve damage⁷), the results of the study were “possibly indicative of onset of peripheral neuropathy.” (R. 772-74.)

6 Emory Healthcare, Lumbar Radiculopathy (Nerve Root Compression), https:// www.emoryhealthcare.org/orthopedics/lumbar-radiculopathy.html (last visited August 17, 2021)

7 Mayo Clinic, Peripheral Neuropathy, https://www.mayoclinic.org/diseases-conditions/ peripheral-neuropathy/symptoms-causes/syc-20352061 (last visited August 17, 2021)

On June 1, 2012, Rodriguez again treated with Dr. Jaeger, who proscribed tizanidine. (R. 654-56.) At the end of that month, on June 29, 2012, Rodriguez again treated with Dr. Hines for her diabetes but also hyperlipidemia (high cholesterol) and hyperthyroidism. In addition to her other medication, Rodriguez began taking atorvastatin for the high cholesterol, and Dr. Hines added hyperthyroidism to her list of chronic conditions. (R. 651-53.)

On August 7, 2012, Rodriguez treated with Dr. Jonathan Rudnick, a doctor of osteopathic medicine (“D.O.”), whom she would continue to see regularly and extensively for pain management focused on her back. On examination, Dr. Rudnick noted that Rodriguez had lumbar tenderness, decreased range of motion in her trunk, antalgic gait (a limp caused by pain⁸), decreased sensation in her hands and feet, tingling in her right leg, positive tests for carpal tunnel, and poor judgment and insight, but no evidence of acute distress, wrist tenderness, hand tenderness, depression, or anxiety.⁹ Dr. Rudnick proscribed Rodriguez Vicodin, had her sign a pain-medication contract, and warned her of the risks associated with her medication, including the need to take precautions driving. (R. 645-50.)

8 Healthline, Antalgic Gait, https://www.healthline.com/health/antalgic-gait (last visited August 17, 2021).

9 Of the numerous carpal tunnels test done at each visit, there was some variation between which were positive and which were negative, but not in any pattern or trajectory from which the Court can decipher meaning without a medical opinion on the matter.

The next day, on August 8, 2012, Rodriguez was admitted to Orange Regional Medical Center (“Orange Regional”) because of hot flashes, lightheadedness, dizziness, chest pressure, and right arm discomfort. She was treated by Dr. Mohammed H. Azmir for acute coronary syndrome (“ACS, ” a condition brought on by sudden reduction of blood flow to the heart¹⁰) and discharged two days later. In addition to her other medication, she was proscribed metoprolol, another treatment for high blood pressure. (R. 382-96, 762, 1016-22.)

10 Mayo Clinic, Acute Coronary Syndrome, https://www.mayoclinic.org/diseases-conditions/acute-coronary-syndrome/symptoms-causes/syc-20352136 (last visited August 8, 2021).

On August 13, 2012, Rodriguez went to Crystal Run for a post hospital visit, saw Dr. Sherma Winchester Penny, and reported that the chest pain that sent her to the hospital was ongoing. (R. 641-44.) A few hours later, she was seen by Dr. William Gotsis for the persistent chest pain. Dr. Gotsis recommended a cardiac catheter, to which Rodriguez agreed. (R. 637-40.) (While the idea to install the catheter was discussed later in the record, it does not appear to have ever been implemented.)

The next day, August 14, 2012, Rodriguez also saw Dr. Jaeger, who noted that Rodriguez had numbness in her extremities but that her muscle spasms were improved. He recommended that she continue taking tizanidine and follow-up in four to six months. (R. 632-36.) That same day, Rodriguez one again saw Dr. Mathew, who noted that Rodriguez continued to have palpitations, was scheduled for the cardiac catheter, and needed three more thyroid nodules biopsied, which she did the next day. Dr. Mathew also noted that Rodriguez's back and neck pain was not well controlled by her medication, and she still had tremors of unclear etiology per Dr. Jaeger's notes. (R. 624-31.)

Two weeks later, on August 28, 2012, Rodriguez saw Dr. Alex Gershenhorn for chest pain and Dr. Lissette Giraud for her thyroid nodules. Dr. Giraud recommended a complete thyroidectomy, which Rodriguez was cleared for on September 5, 2012. That day, hiatal hernia (part of the stomach pushing into the chest cavity¹¹) was added to her chronic conditions. (R. 603-07, 608-12, 618-23.)

11 Mayo Clinic, Hiatal Hernia, https://www.mayoclinic.org/diseases-conditions/hiatal-hernia/symptoms-causes/syc-20373379 (last visited August 17, 2021).

Two days later, before her thyroidectomy, Rodriguez once again saw Dr. Rudnick, complaining about 10/10 pain in her back. Rudnick noted the same present and nonpresent symptoms and gave the same precautions as at their last visit. This time, however, Dr. Rudnick also administered a ketorolac (nonsteroidal, anti-inflammatory¹²) injection for the pain, increased her dosage of duloxetine (an antidepressant and nerve pain medication¹³), gave her braces, and ordered a lumbar MRI and x-ray of the sacroiliac joint (the joint between the hips and tailbone/lumbar¹⁴). (R. 595-601.)

12 Mayo Clinic, Ketorolac, https://www.mayoclinic.org/drugs-supplements/ketorolac-oral-route-injection-route/description/drg-20066882 (last visited August 17, 2021).

13 Mayo Clinic, Duloxetine, https://www.mayoclinic.org/drugs-supplements/duloxetine-oral-route/description/drg-20067247 (last visited August 17, 2021).

14 Spine-Health, Sacroiliac Joint Dysfunction, https://www.spine-health.com/conditions/ sacroiliac-joint-dysfunction/sacroiliac-joint-dysfunction-si-joint-pain (last visited August 17, 2021).

On September 12, 2012, Dr. Giraud performed the complete thyroidectomy at Orange Regional. (R. 696-99.) Rodriguez had three post-operation check-ups with three different doctors in September and October 2012, including one laryngoscopy. Although Rodriguez was generally recovering well, Dr. Hines noted suppressed appetite and low calcium post-surgery. (R. 586-89 590-94, 570-72.)

On October 2, 2012, Rodriguez visited NP Heckman, complaining of paresthesia (tingling and prickling) in her feet. NP Heckman added hypercholesterolemia (high cholesterol) to her chronic conditions. (R. 580-83.) Three days later, on October 5, 2012, Rodriguez saw another NP, Phyllis Lestrange, who she would also continue to see regularly, for re-evaluation of pain in her hands, back, feet, and head, which she described as 4/10. (R. 573-77.)

On November 2, 2012, Rodriguez saw Dr. Rudnick, reporting 8/10 pain, and received a trigger point injection, which she received repeatedly from that point forward, often along with bilateral occipital nerve blocks. On examination, Dr. Rudnick noted the same present and non-present symptoms and gave the same precautions as at their last visit. (R. 562-69.)

Two months later, on December 6, 2012, Rodriguez saw another D.O., Dr. Dmitri Gorelov, reporting her pain as 10/10 (R. 547) and also saw Dr. Jaeger because her balance had been off, she was getting hot, dizzy, and nauseous, and she had fallen down the stairs and fallen in the bathroom. Dr. Jaeger noted gait disturbance and believed that her imbalance was due to neuropathy in her feet from poorly controlled diabetes but ordered a brain MRI. (R. 498, 549-53.) The brain MRI was conducted the next day, on December 7, 2012, and was unremarkable. (R. 752.)

On January 4, 2013, Rodriguez once again saw Dr. Rudnick, reporting that her back pain was an 8/10, and received a trigger point injection as well as bilateral occipital nerve blocks. On examination, Dr. Rudnick noted the same present and non-present symptoms and gave the same precautions as at the last visit but now also noted cervical spine tenderness, decreased range of motion in the neck, and left hip tenderness. (R. 535-46, 2195-96, 2754-55.)

On January 7, 2013, Rodriguez again saw Dr. Hines for her diabetes, noting that the chronic paresthesia in her feet was worsening. (R. 530-34.) Three days after that, on January 10, 2013, on referral from Dr. Jaeger, Rodriguez also saw two doctors for her hip and low back pain (Drs. Qing-Hua Zhao and Carl Silverio) and had x-rays and MRIs of her spine. The MRIs of her cervical spine and lumbar revealed numerous symptoms, such as disc bulging, disc herniation, endplate ridging, and arthropathy (joint disease). (R. 745-51.)

Also on referral from Dr. Jaeger, Rodriguez saw Dr. Tahir Khan on January 17, 2013 for her arthritis. Dr. Khan noted that her symptoms were aggravated by gripping, standing, and walking, and that she was experiencing fatigue, headaches, and two hours of morning stiffness. Dr. Khan recommended that she continue with her pain management but also get a psychiatric evaluation for underlying depression. (R. 52229.)

On February 1, 2013, Rodriguez returned to NP Lestrange with 7/10 pain and was given a trigger point injection. (R. 506-15.) Less than two weeks later, on February 12, 2013, Rodriguez returned to Dr. Jaeger, who noted that her foot pain had worsened, she had numbness in her hands, and Vicodin helped with her back pain but not her foot pain. (R. 498-501, 2190-94, 2749-53.)

Less than one week later, on February 21, 2013, Rodriguez had an unscheduled urgent care visit for numbness in her face and 8/10 pain in her chest that had kept her from sleeping for three days, describing the symptoms as “worse than ever before.” She was seen by Dr. Saed Qaqish, who recommended several follow-ups. (R. 483-90, 217582, 2734-41.) She was also seen that day by NP Lastrange, who noted a vitamin D deficiency. (R. 491-97, 2183-2189, 2742-48.)

On February 25, 2013, by referral of NP Lestrange, Rodriguez was seen by Dr. Thomas Booker. Rodriguez described her low-back and right leg pain as 8/10. Dr. Booker said the pain was related to her lumbar radiculopathy and recommended an epidural steroid injection. (R. 476-80.) The next day, February 26, 2013, she was seen again by Dr. Mathew for abdominal pain and muscle cramps. (R. 469-74, 2168-73, 272733.)

On March 1, 2013, she again treated with Dr. Rudnick, reporting 8/10 pain, and was given a trigger point injection and bilateral occipital nerve blocks. On examination, Dr. Rudnick noted the same present and non-present symptoms and gave the same precautions as at their last visit, but also noted that Rodriguez had depression after Christmas but “felt better now.” (R. 456-68, 2157-67, 2716-26.) On April 8, 2013, Rodriguez reported to NP Lestrange for back, hand, and foot pain, and NP Lestrange revoked Rodriguez's narcotic pain contract for taking other pain medications. (R. 44755.)

On April 26, 2013, Rodriguez returned to Dr. Rudnick, reporting 10+/10 pain and received a trigger point injection and bilateral occipital nerve blocks. On examination, Dr. Rudnick noted the same present and non-present symptoms and gave the same precautions as at their last visit but for the first time also recommended psychiatry. (R. 436-46.)

On June 21, 2013, Rodriguez saw Dr. Rudnick once again, reporting 10+/10 pain but also panic attacks with occasional chest tightness and pain in her feet and hands, with numbness in her hands making it difficult to cook simple meals. She was given a trigger point injection and bilateral nerve blocks. On examination, Dr. Rudnick noted the same present and non-present symptoms and gave the same precautions and recommendations as at the last visit but noted that Rodriguez's pain became worse with standing, and added cervicalgia (neck pain) and vitamin D deficiency to Rodriguez's chronic conditions. He also recommended reducing her narcotics, but Rodriguez did not think she could do so at the time given her pain levels. (R. 422-34.)

On July 10, 2013, accompanied by her daughter, Rodriguez made an unscheduled urgent care visit to Crystal Run for 9/10 shooting and stabbing pain to her right flank. She received a CT scan and other diagnostics that were largely unremarkable but revealed scattered diverticula (bulging pouches in the digestive system¹⁵). (R. 413-19, 742, 823, 871-89.) On July 16, 2013, Rodriguez also received a bilateral Somatosensory Evoked Potential test (an “SEP, ” which studies the relay of sensations between the body and brain¹⁶), the results of which were normal. (R. 780-81, 868-89.)

15 diverticulitis/symptoms-causes/syc-20371758 (last visited August 17, 2021). Mayo Clinic, Diverticulitis, https://www.mayoclinic.org/diseases-conditions/

16 University Of Iowa Hospitals And Clinic, Somatosensory Evoked Potential test (SEP), https://uihc.org/health-topics/somatosensory-evoked-potential-test-sep (last updated August 17, 2021).

Three days later, on July 19, 2013, Rodriguez once again saw Dr. Rudnick, reporting 10+/10 pain. She received a trigger point injection and bilateral sciatic nerve blocks. On examination, Dr. Rudnick noted the same present and non-present symptoms and gave the same recommendations and precautions as at their last visit but observed that she no longer had cervical spine or hip tenderness and now specified that the psychiatry recommendation was for panic attacks. (R. 400-10, 851-67, 2155-56, 271314.)

On August 6, 2013, on referral from Dr. Rudnick, Dr. Kaiyu Ma administered a nerve conduction study, which was abnormal in numerous respects, including no sensory nerve response in Rodriguez's lower leg and decreased conduction velocity in her ulnar (a nerve running down the arm and hand). Dr. Mai noted that the results were consistent with carpal tunnel syndrome, there was evidence of peripheral neuropathy and lumbar radiculopathy, and cervical radiculopathy could not be ruled out. (R. 764-67, 782-85, 2146-54, 2704-12.) On August 19, 2013, Rodriguez also had an x-ray of the spine that revealed right spinal curvature. (R. 816.)

On September 12, 2013 she was treated by Dr. Dimitrios Christoforou for wrist, buttock, and neck pain. Dr. Christoforou reported increased weakness in her hands and difficulty lifting and grabbing, and administered a steroid injection. (R. 967-71, 2138-42, 2696-700.) That same day, September 12, 2013, Rodriguez saw Dr. Rocco Bassora for her knee pain. Dr. Bassora diagnosed Rodriguez with patellofemoral (nerve pain around the kneecap) and administered an unspecified injection. (R. 972-76, 2133-37, 2691-95.)

On September 20, 2013, Rodriguez once again saw Dr. Rudnick, reporting 10+/10 pain. She received a trigger point injection and bilateral sciatic nerve blocks. On examination, Dr. Rudnick noted the same present and non-present symptoms and gave the same precautions and recommendations as at their last visit, but noted that her cervical spine and hip tenderness was back, along with thoracic spine, hand, wrist and slight right knee tenderness for the first time. He also added a recommendation for a consultation with an orthopedic surgeon. (R. 941-58, 2126-27, 2684-85.) One week later, on September 27, 2013, Rodriguez saw Dr. Gershenhorn for abdominal pain and diarrhea. (R. 935-40, 2120-25, 2678-83.)

The next month, on October 18, 2013, Rodriguez again saw Dr. Rudnick, reporting 7/10 pain. Rodriguez noted that her mother had been very ill, but she would get the MRI of her thoracic spine. Dr. Rudnick administered a trigger point injection and bilateral sciatic nerve blocks. He noted the same present and non-present symptoms and gave the same warning and precautions as at their last visit, except that Rodriguez no longer had hip tenderness. (R. 912-31, 2107-2119, 2665-77.) On October 2013, Rodriguez underwent a median nerve SEP study, CT scans, a lumbar MRI, and a cervical MRI. (R. 401-02.)

On October 28, 2013, Rodriguez was admitted to the emergency room at Orange Regional with chest, abdominal, and back pain. She was monitored for a day and released. (R. 800-09.)

Finally, on November 15, 2013, Rodriguez once again saw Dr. Rudnick, reporting 7-8/10 pain, and received a trigger point injection and bilateral sciatic nerve blocks. On examination, Dr. Rudnick noted the same present and non-present symptoms and gave the same recommendations and warnings as at their previous visit but noted that Rodriguez no longer had cervical spine tenderness; that her thoracic spine, hand, and wrist tenderness was now “slight;” and that she should see a psychiatrist for her chronic pain and stress as well as her panic attacks. (R. 890-911, 2104-06, 2662-64, 1182.)

The records available before the consultative medical opinions and first ALJ decision were rendered include few addressing gynecological visits. Toward the end of 2013, however, Rodriguez had three gynecological visits - on August 2, August 19, and September 16, 2013 - as well as a mammogram, and Dr. Cedric A. Wall assessed abnormal uterine bleeding. (R. 812-15, 819-21, 832-50, 959-66, 2128-32, 2686-90.)

B. Opinion Evidence

After Rodriguez applied for disability benefits, and before the Social Security Administration (the “Administration”) made its first determination, the Administration had two consultative examining doctors evaluate Rodriguez, one focused on her physical ailments and one focused on her psychiatric conditions. The Administration then had one non-examining consultative doctor review Rodriguez's record and reassess the consultative psychiatric evaluation.

1. Dr. Jenouri, Physical Consultative Examining Doctor

On January 15, 2014, Dr. Gilbert Jenouri conducted a consultative medical examination focused on Rodriguez's physical ailments. Rodriguez reported 7/10 back pain, radiating to her lower extremities but stated that she cooked, cleaned, did laundry, shopped, and bathed and dressed herself every day. Dr. Jenouri noted a history of anxiety and panic attacks and, for the relevant period, two hospitalizations. He also observed no acute distress and normal gait, 4/5 bilateral grip strength; limited range of motion to the spine but no pain or spasms; limited range of motion and decreased sensation in the upper extremities and decreased range of motion in the thoracic and lumbar spine, but no tenderness, spasms, or scoliosis; and limited range of motion and decreased sensation in the lower extremities, as well as hyperesthesia in the feet, but full strength and no joint effusion, inflammation, or instability. He diagnosed her with back and pain, lower extremity paresthesia, peripheral neuropathy, hand numbness and tingling, diabetes, and arthritis. In conclusion, he said that Rodriguez had “[m]oderate restriction to walking, standing, or sitting long periods, bending, stair climbing, lifting, and carrying.” (R. 1008-12.)

2. Dr. Dubro, Psychiatric Consultative Examining Doctor

On December 27, 2013, Dr. Alan Dubro conducted a psychiatric consultant examination. (R. 1001-07.) Rodriguez was driven to the exam and noted that she left her job in 2010 because of a move but could not work at present “secondary to psychiatric problems.” In reviewing her psychiatric history, Dr. Dubro noted that she was on depression medication (duloxetine) proscribed by her pain management doctor (Dr. Rudnick), which helped to a limited extent, but that Dr. Rudnick had referred her to a psychiatrist to see about other medications. In reviewing her current functioning, Dr. Dubro noted insomnia, a lot of problems with her stomach believed to be related to stress, depression contributing to cervical and lumbar back pain and neuropathy, crying regularly over the last year, difficulty dealing with day-to-day stress, anxiety, tiring easily, limited motivation, and chest pain that, at times, caused her to wake up feeling like she could not breathe.

On examination, Dr. Dubro noted concentration difficulties requiring Dr. Dubro to frequently repeat questions, blunted affect, and a depressed and intermittently tearful mood. Dr. Dubro wrote that Rodriguez's attention and concentration were impaired, and she had distractibility with depressed mood and emotional distress, noting that she could not perform arithmetic word problems. Dr. Dubro also observed that Rodriguez's memory skills were impaired with distractibility, depressed mood, and emotional distress, as evidenced by her ability to recall only three out of five items after one minute and two out of five after five minutes.

Additionally, Dr. Dubro recorded that, over the last year, Rodriguez was not consistently motivated to get out of bed in the morning, only had energy to prepare simple meals, and that doing chores outside of the home like shopping was too stressful, overwhelming, and fatiguing, such that she depended on her husband to complete those tasks.

Dr. Dubro diagnosed Rodriguez with major depression with anxious features and concluded that she would experience marked difficulty learning new tasks, attending to a routine, and maintaining a schedule.

3. Dr. Ferrin, Psychiatric Consultative Non-Examining Doctor

In making its initial determination, the Administration had a non-consulting doctor, Dr. H. Ferrin, review Dr. Dubro's opinion and asses Rodriguez based on her records. (R. 92.) Dr. Ferrin observed that word problems like those used by Dr. Dubro are “typically not considered assessments of attention/concentration for the mental status exam, ” and that Dr. Dubro's object recall protocol was “nonstandard.” Dr. Ferrin noted that the symptoms that Rodriguez described during her psychiatric consultative exam were discrepant from what Rodriguez had described in her disability application, and that Rodriguez was able to independently complete her application. Dr. Ferrin also wrote that “[c]laimant alleges difficulties with socialization, not due to psychiatric/cognitive issues but because she cannot go to certain places because of physical limitations, ” and that “despite a psychiatric impairment, the claimant is able to understand and remember instruction, sustain attention and concentration for tasks, and relate adequately to others.” (R. 90-92.)

C. Initial Determination

In its initial determination denying disability benefits, the Administration concluded that Rodriguez had the following “severe” impairments: degenerative back disorders, peripheral neuropathy, diabetes, other unspecified atrophies, hernias, obesity, peptic ulcers, and affective disorders; as well as the following non-severe impairments: thyroid gland disorder and carpal tunnel syndrome. The Administration concluded, however, that Rodriguez could perform the work that she had previously performed and thus denied her disability benefits. (R. 82-94.)

D. First Hearing

Rodriguez requested a hearing, which ALJ Katherine Edgell held by video on September 2, 2015. (R. 46-81, 222.) At the hearing, two people testified, Rodriguez and Michele Erbacher, a Vocational Expert (“VE”) (R. 46-81).

In terms of her personal life and daily activities, Rodriguez testified that she lived with her husband and two children, who were 15, and 17; that she “sometimes” drove up to 25 minutes to get to her doctors' appointments, but that sometimes she could not drive herself because she did not have enough strength to grip the steering-wheel and her feet were numb, in which case friends drove her; that she checked her blood sugar five times per day; that she woke up at six to get her son out of bed but called him from her own bed instead of going down stairs to get him up, and then didn't get out of bed until eight; that there were days when she would lay in bed and do nothing; that she could cook but couldn't do dishes because the weight was too much for her hands; that she could sweep but not mop because the mop was too heavy for her; that she brought her daughter shopping with her to lift heavier items and often to drive; that other people took care of her cleaning and laundry; that she couldn't walk outside because of uneven ground; that she couldn't sit all day because it hurt her back, so she had to get up every 20 to 30 minutes; that the heaviest thing she could lift and carry was a gallon of milk; that she could only be on her feet or sit for a half-an-hour; that she dressed herself but couldn't fasten buttons or tie her shoes; that she stayed home four to five days a week because of her pain and mostly socialized only via text; and that she used voice-to-text. (R. 50-68.)

In terms of her pain and treatment, Rodriguez testified that she had extreme back pain, hand pain that prevented her from making fists, and numbness and pain in her feet that sometimes inhibited her from getting out of bed and walking; that she was scheduled for a hysterectomy; that she got trigger point injections with Dr. Rudnick, who was going to see about epidural treatment but was worried about her blood-sugar level; that her endocrinologist was Dr. Celzo, whom she saw every three months; that she did not do physical therapy because it made her worse; that she had seen a psychiatrist who didn't put her on any medication because she was already taking duloxetine; that, for her wrists, she had braces, and cortisone shots didn't work; that she had an anxiety attack before coming to the hearing; that she had migraines at least once a week; that she had trouble sleeping, remembering things, and comprehending text messages without reading them four to five times; and that she dropped things and fell often because of the numbness in her feet. (R. 50-71.)

VE Erbacher testified that Rodriguez's previous employment had been as a receptionist, customer service representative, hospital admitting clerk, and clerk/greeter. ALJ Edgell asked whether a person limited to light work, occasional stooping, requiring the option to get up and walk around for a few minutes every two hours if seated, without hazard, could do any of that past work. VE Erbacher said that such a person could do all of that work. When ALJ Edgell added that the person was limited to occasional feel and finger, the VE said the same thing. VE Ebacher's opinion did not change when ALJ Edgell added that the person could only carry five to ten pounds, couldn't walk on uneven terrain, and required an opportunity to change positions at 30-minute intervals. When ALJ Edgell added that the person needed unscheduled hour-long breaks, was off-task 15-20% of the time, or missed two days or more of work per month, however, Erbacher said that the person could not be employed. (R. 76-81.)

E. First ALJ Decision

ALJ Edgell rendered her first decision on October 6, 2015. (R. 96-111.) Because the decision under review is the second one, the Court will not review the first decision in detail. The Court notes, however, that ALJ Edgell acknowledged that there were no treating source opinions in the record but did not refer to any attempt to obtain them. (R. 107.) In addition, ALJ Edgell ascribed “great weight” to Dr. Jenouri's opinion and “limited weight” to the opinions of Drs. Dubro and Ferrin. (R. 103, 107.)

F. Medical Records Obtained After The Medical Opinions And First ALJ Decision Were Rendered

The relevant records added to the file after the medical opinions and first ALJ decision were rendered range from January 10, 2014 through December 15, 2015. (See 1013-2871.) In this recitation, particular attention is given to new conditions and conditions that degenerated, as well as the records of Dr. Rudnick, which remain regular and consistent in form.

On January 10, 2014, Rodriguez once again saw Dr. Rudnick, reporting 10+/10 pain. She received a trigger point injection and bilateral occipital nerve blocks. On examination, Dr. Rudnick noted the same present and non-present symptoms and gave the same precautions and recommendations as at their November 2013 visit but now noted that Rodriguez once again had cervical and thoracic spine tenderness, as well as positive right hand and wrist tenderness. While those symptoms varied in Dr. Rudnick's records that were available before the medical opinions and first ALJ decision were rendered, they remained present in all of Dr. Rudnick's notes thereafter. (R. 1602-14, 2102-03, 2660-61.)

On February 27, 2014, Rodriguez had an MRI that revealed, for the first time, degenerative disk disease in her thoracic spine, resulting in mild stenosis. (R. 1600-01.) On March 7, 2014, Rodriguez reported to Dr. Rudnick with 7-8/10 pain and received a trigger point injection and, for the first time, a right hip trochanteric bursa injection. On examination, Dr. Rudnick noted the same present and non-present symptoms and gave the same precautions and warning as at their last visit but noted that Rodriguez's right hip tenderness was back. (R. 1587-99, 2089-101, 2647-59.) On March 17, 2014, Rodriguez was seen by Dr. Christoforou, reporting increased weakness in her hand, difficulty lifting and grabbing objects, and increased discomfort at night. (R. 1582-86, 2084-88, 2642-45.)

Rodriguez saw Dr. Lisa Batson, a psychiatrist, on April 11, 2014, which was her first time seeing a mental health professional. Rodriguez reported panic occurring more frequently in the last month, panic attacks lasting a couple hours, waking up hyperventilating, always feeling tired and taking one-hour naps, and pulling away from her friends, and being in too much pain to socialize. Dr. Batson diagnosed Rodriguez with unspecified anxiety disorder, panic disorder, and psychological factors contributing to chronic pain, and instructed her to remain on her duloxetine (her antidepressant and nerve pain medication), and to begin seeing a therapist. (R. 1704-09, 1740-45.)

From that point on, Rodriguez treated regularly with a psychiatrist named Dr. S. Traverse. The records for those visits were never obtained despite multiple attempts. (See R. 37.)

The next four records in Rodriguez's file are all visits with Dr. Rudnick. She treated with him on June 3, August 29, and November 4, 2014, as well as March 3, 2015. At all of the visits, she reported her pain as either 7 or 8/10 and received a trigger point injection and bilateral occipital nerve blocks. On examination, Dr. Rudnick noted the same present and non-present symptoms and gave the same precautions and recommendations as at their previous visit, except that, in August, Dr. Rudnick noted that Rodriguez's pain was now positive (not slight) in her left as well as right wrist and hand, and she had worsening midback pain but improved hip pain. In November 2014 and March 2015, the hand and wrist pain remained, and the hip pain was not noted. (R. 1568-81 (June); R. 1555-67, 2081-83, 2639-41 (August); R. 1542-54, 2075-80, 2633-38 (November); R. 1529-41, 2071-74, 2629-32 (March 2015).)

On March 10, 2015, Rodriguez was seen by PA Jessica Ferraiolo, reporting worsening symptoms in her hands and feet, minimal relief with carpal tunnel injections, that her left ring and small finger were going numb, and worsening burning in all extremities. (R. 1525-28, 1585, 2067-70, 2625-28.)

Two months later, on May 6, 2015, Rodriguez was hospitalized in “serious” condition, reporting worsening headaches almost daily for the last few months. (A later medical note indicates that this hospitalization was for anemia and elevated glucose. (R. 1509).) A brain CT was conducted, but the results were unremarkable. She was discharged two days later in “stable” condition. (R. 1054-58.) Whether this hospitalization was for headaches or anemia and elevated glucose, it was her first hospitalization in the record for either condition.

On May 13, 2015, she was seen by Dr. Ma Florence Celzo as a follow-up to her hospital visit and largely reported to be doing well. (R. 1519-24, 2061-66, 2619-24.) One week later, on May 20, 2015, Rodriguez was seen by Dr. Mathew, also for a follow-up to her hospital visit. Dr. Mathew noted Rodriguez's non-compliance with her diabetes medication and discussed compliance and follow-up visits. (R. 1509-18, 2056-60, 261418.)

On May 22, 2015, an EMG was performed by Dr. Kaiyu Ma, which indicated carpal tunnel syndrome and peripheral neuropathy, and lumbar radiculopathy, as well as, for the first time, sciatic radiculopathy. (R. 1491, 1500-08.) On June 1, 2015, Rodriguez treated with PA Ferraiolo, reporting worsening foot pain. PA Ferraiolo told Rodriguez that her pain was most likely related to peripheral neuropathy and recommended neurological consultation. (R. 1496-99, 2052-55, 2610-13.)

The next day, on June 2, 2015, Rodriguez saw Dr. Andrew Faskowitz for a followup about her EMG. Dr. Faskowitz noted that she had a normal gait and normal strength in her arms and legs but numbness in her hands and feet. Dr. Faskowitz's opinion was that Rodriguez had “multifactorial length dependent neuropathy related to” her diabetes and recommended that she restart gabapentin at a higher dose. (R. 1491-94, 2047-51, 2605-09.) Three days later, on June 5, 2015, Rodriguez saw Dr. Daniel Burnham, reporting left wrist pain radiating up her arms for four to five days that got worse with movement, and numbness and tingling in her fingers. (R. 1486-90, 2042-46, 2600-04.)

On June 18, 2015, Rodriguez presented to Dr. Rudnick with 7-8/10 pain and received a trigger point injection and bilateral sciatic nerve blocks. On examination, Dr. Rudnick noted the same present and non-present symptoms and gave the same precautions and recommendations as at their last visit. (R. 1471-85, 2038-41, 2596-99.)

The next day, on June 19, 2015, Rodriguez saw Dr. Howard Yeon, presenting with low back and radiating leg pain. Rodriguez told Dr. Yeon, for the first time in her record, that the trigger point injections she had been receiving from Dr. Rudnick had become less effective. (R. 1469-70, 2036-37, 2594-95.) Also on June 19, 2015, a lumbar x-ray was conducted that showed the following “degenerative changes”: endplate spurs at ¶ 3 to L5 and facet arthropathy in the lower lumbar. (R. 2260, 2819.) Two weeks later, on July 1, 2015, an MRI of Rodriguez's spine showed numerous changes, including improved disc bulge at ¶ 4-L5 and that T2 was no longer hypertense, but degeneration and possible effacement of the left L4 root sleeve, with disc bulge at ¶ 5-S1 being seen “again.” (R. 2232, 2259, 2791, 2818.)

In July 2015, Rodriguez also began a series of serious and escalating gynecological visits and procedures, far beyond anything recorded in her previous records. On July 6, 2015, Rodriguez had imaging of her pelvis. (R. 2261, 2820, 2822.) On July 14, 2015, she had a mammogram screening. (R. 2823.) On July 21, 2015, she was seen by Dr Dumisa Adams, who she began seeing regularly after that point. Dr. Adams noted that Rodriguez had heavy menses and fibroids (growths on the uterus). (R. 1458-63.) Rodriguez saw Dr. Adams again one week later, on July 27, 2015. This time, Dr. Adams also noted menorrhagia (menstruation lasting more than a week¹⁷) and conducted an endometrial biopsy (biopsy from the lining of the uterus¹⁸), presumably of the previously diagnosed fibroids. (R. 1451-57.) On August 5, 2015, Rodriguez returned to Dr. Adams with heavy menses and clots. The results of her biopsy were benign, but Dr. Adams recommended a total hysterectomy¹⁹ and bilateral salpingectomy (removal of the fallopian tubes²⁰). (R. 1445-50.)

17 Center For Disease Control And Prevention, Heavy Menstrual Bleeding, https:// www.cdc.gov/ncbddd/blooddisorders/women/menorrhagia. html (last visited August 18, 2021).

18 National Cancer Institute, Endometrial Cancer Treatment, https://www.cancer.gov/ types/uterine/patient/endometrial-treatment-pdq (last visited August 18, 2021).

19 In the chart, this is noted as an “RATLH, ” or a robotic-assisted total laparoscopic hysterectomy. National Center For Biotechnology Information, Robotic-Assisted Total Laparoscopic Hysterectomy Versus Conventional Total Laparoscopic Hysterectomy, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3015976 (last visited August 18, 2021).

20 Healthline, Salpingectomy: What to Expect, https://www.healthline.com/health/ salpingectomy (last visited August 18, 2021).

Before her hysterectomy, Rodriguez treatment history was interrupted by an urgent care visit and follow-up for diabetes, as well as pain treatment. On August 10, 2015, on referral from Dr. Celzo, Rodriguez reported to urgent care with dizziness and elevated blood sugar levels, which had been high for two days. Rodriguez reported 7/10 pain, received a saline drip and insulin, and was treated by D.O. Angela Iannitti-Hulse. (R. 1440-44, 2021-30, 2579-88.) On August 12, 2015, Rodriguez treated with Dr. Celzo for her diabetes, reporting her pain level as 8/10. Dr. Celzo noted that Rodriguez had not been compliant with her medication, but that her diet had improved, and increased the dosage of her hyperthyroid medication and vitamin D and performed an abdominal ultrasound. (R. 1433-39, 2014-2020, 2572-77, 2832.) On August 20, 2015, Rodriguez treated with Dr. Booker for her neck and back pain, which she described as 7/10. Dr. Booker recommended that she resume taking tizanidine. (R. 1428-32, 2009-13, 256771)

On September 3, 2015, Rodriguez had her total laparoscopic hysterectomy and bilateral salpingectomy, performed by Dr. Adams at Orange Regional. (R. 1063-68, 222931, 2788-90.) Her follow-up care reflects some differing observations from different doctors and some observations that appear contradictory even from the same doctor.

On September 15, 2015, Dr. Adams saw Rodriguez, and the record of the visit generally reflects that Rodriguez was recovering well but notes incisional pain and a vitamin D deficiency. (R. 1424-27.) On October 5, 2015, Rodriguez again visited with Dr. Adams, reporting abdominal pain. A CT scan revealed incisional hernias, and Dr. Adams assessed postoperative abdominal pain and other acute postprocedural pain and recommended a follow-up in one week. (R. 1403-08.) Rodriguez then returned to the hospital reporting incisional pain three more times in less than a month. On October 13, 2015, she reported 5/10 pelvic pain, but Dr. Adams, the doctor who performed her hysterectomy, assessed no complications. (R. 1399-1402.) On October 27, 2015, however, she was seen by a Dr. Manan Shah, now complaining of pain radiating to her pelvis and back. Dr. Shah assessed periumbilical abdominal pain and noted that appendicitis needed to be ruled out. (R. 1393-98.) On November 3, 2015, however, Rodriguez was seen again by Dr. Adams, and the record of that visit inexplicably notes that Rodriguez reported abdominal pain but reported it as “0/10” and states that there was no complication with the wound. Dr. Adams nevertheless assessed her with postoperative abdominal pain. (R. 1389-1392.)

In the midst of those follow-up visits, Rodriguez was seen by Dr. Rudnick on September 25, 2015. She reported 8/10 pain and received a trigger point injection and bilateral sciatic nerve blocks. Dr. Rudnick noted the same present and non-present symptoms and gave the same recommendations and precautions as at their last visit. (R. 1410-23, 2005-08, 2563-66.)

On November 19, 2015, Rodriguez treated with Dr. Quang Ton for her diabetes and other non-orthopedic issues. Rodriguez reported testing her glucose levels 1-2 times per day but did not bring her log to the visit. Dr. Ton noted “severe non-adherence” to her hypothyroidism medication, that Rodriguez could not remember if she was taking her vitamin D supplement, and that Rodriguez was “morbidly obese.” Dr. Ton discussed with Rodriguez the importance of following her recommended course of treatment. (R. 138088, 1996-2004, 2554-62.)

Finally, on December 15, 2015, Rodriguez saw Dr. Rudnick with 8/10 pain and received a trigger point injection and bilateral sciatic nerve blocks. Dr. Rudnick noted the same present and non-present symptoms and gave the same recommendations as at their last visit. (R. 1367-79, 1992-95, 2550-53.²¹)

21 Before the ALJ's second decision was issued on January 25, 2019, the ALJ obtained medical records through August 7, 2018. (See R. 1710-39.) Rodriguez's date last insured, however, was determined to be December 31, 2015. Because records postdating that are not directly relevant to the period of time that Rodriguez was eligible for benefits, the Court does not review them in detail here. The Court notes, however, that there are hundreds of pages of records from December 31, 2015 through August 7, 2018, documenting that Rodriguez continued to seek treatment regularly after she was no longer eligible for disability, for many of the same conditions that were present during the relevant period, including anxiety and depression, some worsening over time. (See, e.g., R. 1755-56, 1827, 1835-36.)

G. Second Hearing

ALJ Edgell held a second hearing on August 23, 2018. Two people testified: Rodriguez and VE Linda Stein. ALJ Edgell asked Rodriguez very few questions. The ALJ asked almost no questions addressing new information, including none about Rodriguez's hysterectomy, which was performed after the last hearing. The only relevant new information that ALJ Edgell solicited was that Rodriguez's migraines had become more frequent (almost daily), and she was no longer driving on her own because of her anxiety attacks and tremors. (R. 36-37.)

VE Stein testified that Rodriguez's past work was as a receptionist, appointment clerk, customer service representative, and admitting clerk. ALJ Edgell asked whether a person limited to light work, with no more than frequent handle, occasional feel, occasional stoop and stair climb, no hazards, and requiring the opportunity to, if seated, stand for a minute or two to stretch after two hours, or, if standing, requiring an opportunity to sit for a minute or two after two hours, could perform any of that past work. VE Stein testified that she could. ALJ Edgell asked if that would be true if the person could only do sedentary work, and VE Stein said yes. When ALJ Edgell asked, however, if the same would be true if the person were also limited to occasional finger, feel, and handle, VE Stein said no. VE Stein testified, however, that such a person could perform other work sufficiently available in the national economy, such as surveillance system monitor, election clerk/poll clerk, and telemarketer. When ALJ Edgell asked whether a person could keep those jobs if they were off task 20% of the day, VE Stein said no. (R. 42-43.)

H. Second ALJ Decision

ALJ Edgell issued her second decision on January 30, 2019. (R. 12.) She found that Rodriguez had the following “severe” impairments: diabetes, obesity, left carpal tunnel syndrome and mild axonal peripheral neuropathy, lumbar disc disease with radiculopathy, cervical and thoracic disc disease, and status post hysterectomy in September 2015. (R. 18.) The ALJ found that Rodriguez also had the following impairments but that they were “not severe”: headache disorder, peptic ulcer, hypothyroidism, hiatal hernia, multinodular goiter with thyroidectomy, and depressive disorder and anxiety. (R. 18.)

With respect to the depressive disorder and anxiety, ALJ Edgell elaborated on why she found them, either singly or in combination, not to cause more than minimal limitation in Rodriguez's ability to perform basic work. The ALJ acknowledged Dr. Dubro's consultative opinion but also noted Dr. Ferrin's critiques of Dr. Dubro's opinion and an alleged contradiction between Rodriguez's admission to Dr. Dubro and the daily activities she listed on her disability application. (R. 18-19.) ALJ Edgell also summarized the record of Rodriguez's visit with Dr. Batson, though it is not clear how that report supports the ALJ's conclusion, and noted that the Administration had been unable to obtain records from Rodriguez's therapist despite “additional calls made to obtain the records.” (R. 19.) ALJ Edgell again assigned “little evidentiary weight” to Dr. Dubro's opinion because it was “based on a one-time cursory evaluation and [was] poorly supported by the generally benign clinical treating record and the claimant's admitted activities of daily living.” This time, however, ALJ Edgell assigned “good evidentiary weight” to Dr. Ferrin's opinion, without explaining why she afforded good weight to the identical opinion she had previously assigned little weight. (R. 19.)

ALJ Edgell then assessed the severity of Rodriguez's mental impairments. In support of finding them not severe, she relied on observations that Rodriguez, among other things, regularly checked her blood pressure, followed spoken and written instructions, and followed her medication regimen. (R. 20.)

Next, ALJ Edgell determined that Rodriguez's impairments did not meet or medically equal any of the Listings that would make her presumptively disabled. (R. 21.) ALJ Edgell then went on to determine Rodriguez's RFC, considering (1) all of Rodriguez's symptoms to the extent they were consistent with the medical and other evidence and (2) the opinion evidence. (R. 21.) ALJ Edgell concluded that Rodriguez had the RFC to perform light work: that she could lift and carry 10 pounds frequently and 20 pounds occasionally; sit for 6 hours and stand and walk for 6 hours during an 8-hour workday with the opportunity to stand for 1-2 minutes after 2 hours; frequently handle/finger; and occasionally feel, stoop, and climb stairs but avoid hazards. (R. 21.)

ALJ Edgell found that Rodriguez's claim that she was further limited by her impairments was not supported by the record. (R. 22.) In support of that, ALJ Edgell relied on, among other things, the following observations: Rodriguez's “conservative” treatment for diabetes, obesity, carpal tunnel, neuropathy, disc disease with radiculopathy, and a hysterectomy; only “mild clinical findings” at most examinations; her grip being normal in two 2013 treating physician notes; a lack of records indicating muscle spasm, sensory deficit, and motor disruption; mostly stable progress and treatment notes; and her “activities of daily living, ” such as checking her blood sugar level five times per day, following her medication regimen, cooking, sweeping, and shopping. (R. 21-25.)

ALJ Edgell made much of Rodriguez's alleged ability to drive a car:

The undersigned points out that the ability to drive a car, demonstrates the ability to use hand and foot controls, and an ability to turn one's head to back up and change lanes and to sit for continuous periods. It further demonstrates the ability to bend and stoop to get into and out of a car. The ability to drive also demonstrates concentration and persistence as well as an ability to deal with the stress inherent in the operation of a motor vehicle. The ability to drive also shows a good degree of concentration and persistence - attributes necessary to work effectively.

(R. 25.) ALJ Edgell also ascribed “significant evidentiary weight” to the opinion of Dr. Jenouri. (R. 24.)

Based on all of the above, ALJ Edgell concluded that Rodriguez was capable of performing her past relevant work as a receptionist, appointment clerk, customer service representative, and patient representative/admitting clerk, and was therefore not disabled during the relevant period. (R. 25-26.)

I. Present Litigation

Rodriguez administratively appealed the ALJ's second decision, but, on April 1, 2020, the appeal was denied, rendering ALJ Edgell's second decision the final determination of the Commissioner. (R. 1-6.) On May 27, 2020, Rodriguez filed the operative complaint seeking district court review pursuant to 42 U.S.C. § 405(g). (Dkt. 7.) On December 14, 2020, the Honorable Vernon S. Broderick, U.S.D.J., referred this matter to the undersigned for a Report And Recommendation. (Dkt. 17.)

DISCUSSION

The ALJ erred by relying on stale opinions and failing to adequately develop the record. Although failure to develop the record is a threshold issue, and thus could be discussed first, the Court first addresses the stale opinions, because, in this case, they have some bearing on the failure to develop the record. The Court goes on to briefly address the ALJ's having over-relied on Rodriguez's alleged ability to perform daily tasks and impermissibly ignored evidence of Rodriguez's disabilities.

A. Stale Medical Opinions

It is error for an ALJ not to account for the fact that medical opinions are stale. Chambers v. Commissioner Of Social Security, No. 19-CV-2145, 2020 WL 5628052, at *12 (S.D.N.Y. Sept. 21, 2020). “A medical opinion is not necessarily stale simply based on its age. A more dated opinion may constitute substantial evidence if it is consistent with the record as a whole notwithstanding its age.” Biro v. Commissioner Of Social Security, 335 F.Supp.3d 464, 470 (W.D.N.Y. 2018). However, a medical opinion may be stale if it does not account for the claimant's deteriorating condition. See e.g., Figueroa v. Saul, No. 18-CV-4534, 2019 WL 4740619, at *25-26 (S.D.N.Y. Sept. 27, 2019) (finding error in the ALJ's assigning consultative examining physician's opinion significant weight in part because the doctor's assessment was completed more than two years before the hearing, and the ALJ made no attempt to assess whether claimant's condition had deteriorated in those two years); Camille v. Colvin, 104 F.Supp.3d 329, 343-44 (W.D.N.Y. 2015), aff'd, 652 Fed. App'x 25 (2d Cir. 2016) (“medical source opinions that are ‘conclusory, stale, and based on an incomplete medical record' may not be substantial evidence to support an ALJ finding”) (quoting Griffith v. Astrue, No. 08-CV-6004, 2009 WL 909630, at *9 n.9 (W.D.N.Y. March 31, 2009)); Jones v. Commissioner Of Social Security, No. 10-CV-5831, 2012 WL 3637450, at *1-2 (E.D.N.Y. Aug. 22, 2012) (ALJ should not have relied on medical opinion in part because it “was 1.5 years stale” as of plaintiff's hearing date and “did not account for her deteriorating condition”).

In this case, the medical opinions of record were clearly stale. They were all rendered in December 2013 and January 2014. The opinions thus did not account for approximately two full years of time that Rodriguez was eligible for disability, and during that time, Rodriguez's condition changed in numerous important ways. For example, while Dr. Rudnick's examinations from before January 2014 intermittently indicated cervical and thoracic spine tenderness and right hand and wrist tenderness, those symptoms were continuously present during every examination from January 2014 onward. (Compare R. 400-10, 436-46, 456-68, 535-46, 562-69, 595-601, 645-50, 890911, 941-58, 912-31 (before), with R. 1367-79, 1410-23, 1471-85, 1529-41, 1542-54, 1555-67, 1568-811587-99, 1602-14 (after).)

After 2013, Rodriguez reported worsening of several of her conditions: she reported increased weakness in her hand and discomfort at night (R. 1582-86), worsening symptoms in the hands and feet and worsening burning in all extremities (R. 1525-28), worsening headaches (R. 1054-58), and worsening foot pain (R. 1496-99). Rodriguez also reported for the first time that her carpal tunnel and trigger point injections became less effective after 2013. (R. 1469-70, 1525-28). She received a new type of injection to her right hip for the first time. (R. 1587-99).

After 2013, two diagnostic exams revealed conditions that had not been observed before: an MRI revealed degenerative disk disease in her thoracic spine (see R. 160001), and an EMG revealed sciatic radiculopathy for the first time. (R. 1491, 1500-08). Rodriguez was also hospitalized for either headaches or anemia, neither one of which had led to her hospitalization before 2014. (See R. 1054-58, 1507). Not insignificantly, she also had a total hysterectomy. (R. 1063-68.) There is no medical opinion in the record opining on how that may have affected her RFC, and the follow-up treatment notes on that issue are difficult to decipher and sometimes contradictory, as described above.

Of specific relevance to her mental health, Rodriguez first saw a mental health profession after the medical opinions were rendered and then continued to see a therapist regularly. That very well could have changed the opinions of Drs. Dubro and Ferrin. For all of those reasons, each of the three medical opinions in the record were stale, Figueroa, 2019 WL 4740619 at *25-26, and ALJ Edgell's failure to account for that was error. Chambers, 2020 WL 5628052 at *12.

B. Failure To Adequately Develop The Record And To Obtain Medical Opinions From Rodriguez's Treating Physicians

1. Legal Requirements

“Before determining whether the Commissioner's conclusions are supported by substantial evidence, ” a court “must first be satisfied that the claimant has had a full hearing under the ... regulations and in accordance with the beneficent purposes of the [Social Security] Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (alterations in original) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). It is well settled that even when the claimant is represented by counsel, the ALJ has an affirmative duty to develop the medical record and seek out further information where the physician's reports are inconsistent and where gaps exist in the record. See Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (“Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record”). Legal errors regarding the duty to develop the record are a threshold issue warranting remand. See Rosa v. Callahan, 168 F.3d 72, 79-80 (2d Cir. 1999) (remanding where ALJ failed to fully develop record by failing to obtain or attempting to obtain records).

The ALJ's duty to develop the record “is inextricably linked” to the treating physician rule. Lacava v. Astrue, No. 11-CV-7727, 2012 WL 6621731, at *13 (S.D.N.Y. Nov. 27, 2012), R. & R. adopted, 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012). The treating physician rule dictates that “the treating physician's opinion as to the claimant's disability, even if retrospective, is controlling if it is well-supported by medically acceptable techniques and is not inconsistent with substantial evidence in the record.”²² Gonzalez v. Apfel, 61 F.Supp.2d 24, 29 (S.D.N.Y. 1999); see 20 C.F.R. § 404.1527(d). “In light of the special evidentiary weight given to the opinion of the treating physician[, ] the ALJ must make every reasonable effort to obtain not merely the medical records of the treating physician but also a report that sets forth the opinion of the treating physician as to the existence, the nature, and the severity of the claimed disability.” Hooper v. Colvin, 199 F.Supp.3d 796, 812 (S.D.N.Y. 2016) (internal quotation marks and alteration omitted) (quoting Molina v. Barnhart, No. 04-CV-3201, 2005 WL 2035959, at *6 (S.D.N.Y. Aug. 17, 2005)). “‘Every reasonable effort' means that the ALJ ‘will make an initial request for evidence' from the claimant's medical source and make one follow up request between 10-20 calendar days after the initial one.”²³ Assenheimer v. Commissioner Of Social Security, No. 13-CV-8825, 2015 WL 5707164, at *15 (S.D.N.Y. Sept. 29, 2015) (quoting 20 C.F.R. § 416.912(d)(1)).

22 The treating physician rule applies to all claims “filed ... before March 27, 2017.” 20 C.F.R. § 404.1527. For claims filed after March 27, 2017, the treating physician rule no longer applies and has been replaced by 20 C.F.R. § 404.1520c. Id. Rodriguez's claim was filed on September 24, 2013. (R. 82-83.) Accordingly, the treating physician rule applies to Rodriguez's claim. See 20 C.F.R. § 404.1527.

23 A medical source statement is an evaluation from a treating physician or consultative examiner of “what an individual can still do despite a severe impairment, in particular about an individual's physical or mental abilities to perform work-related activities on a sustained basis.” Hooper, 199 F.Supp.3d at 812 (quoting SSR 96-5p, 1996 WL 374183 (July 2, 1996)).

The Second Circuit has held that an ALJ's failure to request medical source opinions is not per se a basis for remand where “the record contains sufficient evidence from which an ALJ can assess the petitioner's residual functional capacity.” Tankisi v. Commissioner Of Social Security, 521 Fed. App'x 29, 34 (2d Cir. 2013). The need for a medical source statement from the treating physician hinges “on [the] circumstances of the particular case, the comprehensiveness of the administrative record, and, at core, whether an ALJ could reach an informed decision based on the record.” Sanchez v. Colvin, No. 13-CV-6303, 2015 WL 736102, at *5 (S.D.N.Y. Feb. 20, 2015) (citing Tankisi, 521 Fed. App'x at 33-34).

Courts have distinguished Tankisi and “remanded where the medical record available to the ALJ is not ‘robust' enough to obviate the need for a treating physician's opinion.” Hooper, 199 F.Supp.3d at 815 (quoting Sanchez, 2015 WL at 736102, at *7); see also Guillen v. Berryhill, 697 Fed. App'x 107, 108-09 (2d Cir. 2017) (remanding case where “medical records discuss [claimant's] illnesses and suggest treatment for them, but offer no insight into how her impairments affect or do not affect her ability to work, or her ability to undertake her activities of everyday life”). This requirement applies even where the ALJ has access to treatment notes, test results, and other medical history. See Santiago v. Commissioner Of Social Security, No. 13-CV-3951, 2014 WL 3819304, at *17 (S.D.N.Y. Aug. 4, 2014) (“The ALJ must make reasonable efforts to obtain a report prepared by a claimant's treating physician even when the treating physician's underlying records have been produced”); La Venture v. Colvin, No. 12-CV-1490, 2014 WL 1123622, at *4-5 (N.D.N.Y. March 20, 2014) (remanding case where the record contained hundreds of pages of medical documentation, including treatment notes, but did not contain any assessments of the claimant's ability to work from the treating physicians).

2. Application

Here, nothing in the record indicates that ALJ Edgell ever attempted to obtain treating physician opinions. The portions of the requests sent to providers that are in the record ask only for records, not opinions. (R. 397, 779.) A portion of the Administration's initial determination - which was notably generated before the January 2013-December 2015 records were received - states that “treating source(s)” were “contacted to perform the CE(s)” but that the “treating source does not accept the state approved vendor fee.” (R. 85.)

That language is somewhat mysterious. A treating source would not provide a consultative opinion (“CE”) but a treating source opinion. Regardless, the language does not specify which treating source was contacted, as at least one other court has noted when confronted with identical language. Fontanez v. Colvin, No. 16-CV-1300, 2017 WL 4334127, *26 n.31 (E.D.N.Y. Sept. 28, 2017) (“it is unclear which treating physician this statement is referring to and whether it was the reason why none of Plaintiff's treating physicians provided a statement assessing Plaintiff's RFC”). In this case, Rodriguez had numerous treating physicians, even in the records before January 2014. They included, for example, Dr. Mathew, her primary care provider; Dr. Rudnick, who she treated with almost every month; Dr. Gershenhorn, whom she saw regularly for stomach issues; Dr. Hines, her primary physician for her diabetes; and Dr. Jaeger, the doctor she saw routinely for her tremors.

Even if the stray note in the initial determination means that the ALJ reached out to all of those providers in January 2014, there is nothing to indicate that the ALJ reached out again after the case was remanded and additional records were obtained. Furthermore, the January 2014-December 2015 records reveal additional treating physicians, such as Dr. Celzo, who became Rodriguez's primary doctor for her neuropathy (see R. 54, 1433-39, 1440-44, 1519-24) and Dr. Adams, who began treating her regularly for her gynecological problems and performed her hysterectomy. (R. 106368, 1389-92 1399-1402, 1424-27, 1445-50 1451-57, 1458-63.) There is zero evidence in the record that can even be construed to indicate that the ALJ attempted to obtain opinions from either of those treating physicians.

The Commissioner's only rejoinder to this obvious failure to develop the record is that the ALJ had the treating records, which totaled approximately 2, 500 pages, and the three opinions from the non-treating physicians. (Def. Mem. at 27.²⁴) As noted, however, the opinions from the non-treating physicians were all stale and thus could not provide substantial evidence for the Commissioner's decision. See Camille v. Colvin, 104 F.Supp.3d 329, 343-44. It is not sufficient that the ALJ had access to treatment notes, test results, and other medical history. See Santiago, 2014 WL 3819304 at *17; La Venture, 2014 WL 1123622 at *4-5. Those records offered “no insight” into whether Rodriguez's impairments affected her ability to work. Guillen, 697 Fed. App'x at 108-09. Without an opinion explaining how the raw treatment records affect the claimant's RFC, an ALJ has no substantial evidence on which to base an RFC determination. Legall v. Colvin, No. 13-CV-1426, 2014 WL 4494753, at *4 (S.D.N.Y. Sept. 10, 2014); Hilsdorf v. Commissioner Of Social Security, 724 F.Supp.2d 330, 347 (E.D.N.Y. 2010) (“Because an RFC determination is a medical determination, an ALJ who makes an RFC determination in the absence of supporting expert medical opinion has improperly substituted his [or her] own opinion for that of a physician, and has committed legal error”); Gross v. Astrue, No. 12-CV-6207P, 2014 WL 1806779, at *18 (W.D.N.Y. May 7, 2014) (“[A]n ALJ is not qualified to assess a claimant's RFC on the basis of bare medical findings, and as a result an ALJ's determination of RFC without a medical advisor's assessment is not supported by substantial evidence. Accordingly, [w]here the medical findings in the record merely diagnose [the] claimant's exertional impairments and do not relate those diagnoses to specific residual functional capabilities ...[, ] [the Commissioner] may not make the connection himself [or herself].”) (internal quotation marks and citations omitted).²⁵

24 “Def. Mem.” refers to the Commissioner's “Memorandum Of Law In Support Of The Commissioner's Motion For Judgement On The Pleadings” (Dkt. 28).

25 The Court also notes that while the record is voluminous, it contains triplets and even quadruplets of hundreds of pages of relevant records. (See generally R. 384-1000, 10132871.)

Furthermore, courts have held that where, as here, psychiatric impairments are at issue, an ALJ has a heightened duty to develop the record due to the difficulties associated with evaluating a mental illness's impact on a claimant's ability to function adequately in a workplace. E.g., Santiago v. Commissioner Of Social Security, No. 13-CV-3951, 2014 WL 3819304, at *15 (S.D.N.Y. Aug. 4, 2014); see also Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 514 (2d Cir. 2002) (“[C]ourts should exercise an extra measure of caution when adjudicating the claims of a litigant whose mental capacity is in question”); Gabrielsen v. Colvin, No. 12-CV-5694, 2015 WL 4597548, at *4 (S.D.N.Y. July 30, 2015) (collecting cases).

In this case, psychiatric issues were plainly at issue, and their effect on Rodriguez's ability to work was unclear. While the ALJ had the opinions of consultative Drs. Dubro and Ferrin, neither of those doctors had the benefit of reviewing Dr. Batson's evaluation, which did not occur until April 2014, or knowledge that Rodriguez subsequently treated regularly with a therapist. The opinions of Drs. Dubro and Ferrin were materially stale, and without more timely opinions, the ALJ was in no position to interpret the meaning of Dr. Batson's medical record, Rodriguez's regular therapy, or any of Rodriguez's medical records as they related to her mental health conditions. See Legall, 2014 WL 4494753 at *4; Hilsdorf, 724 F.Supp.2d at 347; Gross, 2014 WL 1806779 at *18.

Finally, the ALJ failed to fulfill her duty to develop the record by failing to ask meaningful, probing questions about the medical issues that the ALJ became aware of after the first hearing. Bueno v. Commissioner Of Social Security, No. 17-CV-1847, 2018 WL 5798583, at *10 (S.D.N.Y. Aug. 20, 2018) (duty to develop the record extends to asking meaningful, probing questions about medical history and symptoms), R. & R. adopted, 2018 WL 5791967 (S.D.N.Y. Nov. 5, 2018). At the second hearing, the ALJ did not ask any questions about Rodriguez's treatment with Drs. Batson or Traverse, her hysterectomy, or any of the other conditions that worsened after the first set of records, discussed extensively above. Id.

For all of those reasons, the ALJ failed to adequately develop the record.

C. Overreliance On Daily Activities And Ignoring Relevant Evidence

On remand, the Court cautions the ALJ not to over-rely on daily activities and to ensure that she does not ignore relevant evidence in the record. Several portions of the ALJ's decision concern the Court in that respect. Without any non-stale opinion evidence to rely on, the ALJ relied extensively on Rodriguez's alleged ability to engage in daily activities. (See R. 19-25.) Without additional adequate evidence supporting an ALJ's conclusion, a claimant's daily activities should not be relied on to determine that the claimant is not disabled. Woodward v. Apfel, 93 F.Supp.2d 521, 529 (S.D.N.Y. 2000); see also Stellmaszyk v. Berryhill, No. 16-CV-9609, 2018 WL 4997515, at *25 (S.D.N.Y. Sept. 28, 2018) (“courts have recognized that a claimant's ability to engage in certain life activities ... does not necessarily mean that the claimant is capable of meeting the full requirements of sedentary work”); Boyd v. Apfel, No. 97-CV-7273, 1999 WL 1129055, at *3 (E.D.N.Y. Oct. 15, 1999) (activities, such as caring for one's basic needs, “do not by themselves contradict allegations of disability”).

In addition, in many instances, the ALJ's conclusions about Rodriguez's daily activities ignored relevant evidence in the record. As one example, the ALJ repeatedly stated that Rodriguez could drive and imputed considerable significance to that conclusion. It is true that Rodriguez indicated, in her initial application and her examination with Dr. Jenouri, that she could drive. Those records, however, did not account for, respectively, four years and two years of ensuing relevant developments reflected in the medical records. Rodriguez testified that she had trouble driving for numerous reasons, including not having the strength to hold onto the steering wheel (R. 58) and not being able to feel the pedals because of lack of sensation in her feet (R. 68); as a result, she indicated that she had her daughter and friends drive for her (R. 58, 60), which is consistent with the fact that she was driven to her appointment with Dr. Dubro and to the first ALJ hearing (R. 51, 1002). And, at her unscheduled urgent care visit for chronic numbness and weakness in her upper extremities, she was advised not to drive until she was further evaluated (R. 483, 488). In addition, ALJ Edgell repeatedly relied on the ALJ's conclusion that Rodriguez followed her medication regime. It is unclear what evidence in the record supports that conclusion but, as the Commissioner points out in his motion (Def. Mem. at 10), there is ample evidence in the record that contradicts it and indicates that Rodriguez was regularly and sometimes “severely” non-compliant with her medications. (See, e.g., R. 1380-84, 1509-19, 1433-39, 2614.) Failing to account for all of that relevant evidence was error. Ruiz, 2002 WL 826812 at *6.

Many of the ALJ's medical conclusions also fail to account for relevant evidence in the record. Of particular note is the ALJ's conclusion that Rodriguez's treatment - for effectively all of her ailments - was “conservative.” (R. 21-25.) While the ALJ noted that Rodriguez received trigger point injections, she ignored how frequently they were administered and that they became less effective over time. See Inzinca v. Commissioner Of Social Security, No. 18-CV-6289, 2020 WL 1163993, at *4 (W.D.N.Y. Mar. 11, 2020) (error not to consider that conservative treatment became less effective over time); see also Chambers, 2020 WL 5628052 at *13 (fact that conservative treatment became ineffective after medical opinion was issued rendered that opinion stale); cf. Rosado v. Saul, No. 19-CV-8073, 2021 WL 22153, at *15 (S.D.N.Y. Jan. 4, 2021) (“improper” to characterize continual trigger point injections that provided no more than temporary relief, while claimant's conditions worsened, as “conservative”). Notably, in addition to the trigger point injections, Rodriguez was also proscribed Vicodin, and even that did not address all of her pain. (See, e.g., R. 498-501.) Furthermore, the ALJ's conclusion that Rodriguez's file does not contain any records indicating, among other things, sensory deficits, overlooks countless records in the file - exam visits, diagnostics, and even hospitalization - indicating that she suffered sensory deficits in, among other places, her feet, hands, and face. Again, ignoring all of that relevant evidence was error. Ruiz, 2002 WL 826812 at *6.

CONCLUSIONS

For the reasons explained above, the Court respectfully recommends that Rodriguez's motion should be GRANTED and the Commissioner's motion should be DENIED.

DEADLINE TO OBJECT

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 the Court, with extra copies delivered to the Chambers of the Honorable Vernon S. Broderick, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, at United States Courthouse, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will result in a waiver of objections and will preclude appellate review.