Opinion
16-CV-3261 (AT)(SN)
03-16-2017
ROBIN NANETTE SCOTT, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION SARAH NETBURN, United States Magistrate Judge.
TO THE HONORABLE ANALISA TORRES:
Robin Nanette Scott seeks judicial review, under 42 U.S.C. § 405(g), of the Commissioner of Social Security's denial of her application for Supplemental Security Income ("SSI") and disability insurance benefits ("DIB"). The Commissioner of Social Security moves for judgment on the pleadings under Federal Rule of Civil Procedure 12(c).
Scott protectively filed for SSI benefits on March 24, 2013, alleging that she was disabled as of December 24, 2012, due to lupus, chronic back pain, and a mental health condition. A hearing was conducted before Administrative Law Judge ("ALJ") Jerome Hornblass on August 12, 2014, at which Scott was represented by an attorney. On October 8, 2014, the ALJ denied Scott's claim for benefits, finding that although she did have severe impairments, she maintained a residual functional capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) and § 416.967(a), with a limitation to avoiding excessive pulmonary irritants. The ALJ found that Scott could not perform any of her past relevant work, but, applying the Medical-Vocational Rules, found that jobs existed in significant numbers in the national economy that Scott could perform. On April 1, 2016, the Social Security Appeals Council affirmed the ALJ's decision without opinion, thus rendering it the final decision of the Commissioner.
For the reasons set forth below, the Court recommends that the Commissioner's motion be DENIED and the case be REMANDED to the Commissioner for further development of the administrative record.
BACKGROUND
I. Evidence in the Administrative Record
A. Plaintiff's Statements to the Social Security Administration
On May 3, 2013, Scott submitted a function report to the SSA. This report indicated that her daily activities included preparing her children for school, and homework, and attending medical appointments. (Tr. 146.) She noted that she was no longer able to walk great distances, go to regular family events, or participate in activities in the park with her children. (Tr. 146.) She stated that she had difficulties with personal care and sleep due to "constant, severe pain" in her legs, hips, thighs, feet, and right elbow and pinky finger. (Tr. 146-47.) She noted particular difficulties with bending or stretching her right arm. (Tr. 147.) While she could continue to cook and do laundry, she noted that she had to cook short, basic meals because of difficulty standing for long periods. (Tr. 147.)
Scott further noted that she had difficulties leaving the house because of severe pain, fatigue, nausea, and a need to avoid exposure to direct sunlight on account of her systemic lupus. (Tr. 148.) Therefore, she reported being limited to shopping once a month. (Tr. 149.) Her leisure activities included watching television, going to church, reading the Bible, and going to the park, but her ability to go to the park was limited by sun exposure and arm pain. (Tr. 149.) She reported that she could walk only one block before having to stop to rest for 5 to 15 minutes. (Tr. 152.)
She reported that she was limited in lifting, standing, walking, sitting, climbing stairs, kneeling, squatting, reaching, and using her hands. (Tr. 150-51.) She reported using a cane and a back/neck brace to ambulate. (Tr. 151.)
B. Medical Evidence
The record consists of consultative examination reports from Dr. Haruyo Fujiwaki, a psychologist, and Dr. Ted Woods, a preventative medicine specialist, and extensive hospital records from the Metropolitan Hospital Center ("Metropolitan"), where Scott saw a number of treating physicians from a variety of specialties. Records from Metropolitan are available from January 17, 2012 to June 20, 2014.
1. Records from Metropolitan Treating Physicians
a. Neurologic/Orthopedic Issues
On July 24, 2012, Scott saw general practitioner Dr. Ijeoma Ikwueke for a routine visit. (Tr. 247-50). Her chief complaints were chronic back pain arising after car accidents in 1999 and 2001, and leg and hip pain when walking. (Tr. 248.) Imaging of the thoracic and lumbar spine ordered by Dr. Ikwueke was unremarkable. (Tr. 328.) Because she complained of periodic incontinence, and worsening symptoms over a six month period, she was referred to neurology to rule out cauda equina syndrome or spinal stenosis. (Tr. 248.)
On October 23, 2012, Scott was examined by neurologist Dr. Sanju Adhikari. (Tr. 237.) She reported complaints primarily regarding the left side of her body from the cervical region to her toes, including tingling, numbness, and sharp pains up to 7/10, as well as increased pain with walking and bending. (Tr. 237.) She also reported pain in her right arm aggravated by excessive motion, and calmed somewhat with Motrin. (Tr. 237.) Dr. Adhikari noted that the prior EMG done on her right arm in 2009 was normal. (Tr. 237.) Her strength was normal in both upper and lower extremities, but she had reduced range of motion in her left leg. (Tr. 238.) Dr. Adhikari prescribed Cymbalta and Relafen and referred Scott for an EMG of the upper extremities. (Tr. 238.) The diagnosis was unspecified myalgia and myositis, and Dr. Adhikari noted that if the EMG was normal, he would refer her to rheumatology for possible fibromyalgia. (Tr. 239.)
On January 22, 2013, Scott had a follow-up appointment with neurologist Dr. Shereen al Rashadad. (Tr. 350-53.) She stated that she continued to have pain on her left side, as well as bilateral lower extremity pain radiating down from her lower back that reached 9 out of 10 in intensity, and that such pain was exacerbated by bending, turning, and walking. (Tr. 351.) Dr. al Rashadad found that her strength was mostly intact in both upper and lower extremities and that her straight leg test was positive with pain produced in the left hip at 45 degrees. (Tr. 352.) Scott was referred for a CT scan of her neck and lower back. (Tr. 352.)
The CT scan ordered by Dr. al Rashadad was performed on February 6, 2013. (Tr. 377.) This scan demonstrated marked spinal and mild bilateral foraminal stenoses at C4-C5; moderate spinal and bilateral foraminal stenoses at C3-C4; mild to moderate spinal stenoses at C5-C6 and C6-C7; small disc herniations at L2-L3 and L5-S1; moderate central/left paracentral disc herniation extending far left laterally, with marked bilateral foraminal stenoses at L4-L5; and small far left lateral disc herniation with bilateral foraminal stenoses at L3-L5, as well as other minor abnormalities. (Tr. 377-80.)
On February 13, 2013, Scott was evaluated by rehabilitation physician Dr. Adrian Didita. (Tr. 344-46.) Dr. Didita noted the CT scan findings of spinal and foraminal stenosis, and found that she had 4/10 back pain precipitated by bending or lifting. (Tr. 345.) Scott stated that she could walk two blocks and used a cart for assistance. (Tr. 345.) Scott was referred for an EMG to rule out radiculopathy. (Tr. 345.) The EMG conducted on March 12, 2013, was normal and showed no evidence of left lumbar radiculopathy. (Tr. 339.)
On April 10, 2013, Scott saw rehabilitation physician Dr. Juan Carlo Rodriguez. (Tr. 337-38.) Though left lumbar radiculopathy was ruled out by the EMG, Scott still complained of 6/10 back pain and noted that she had difficulty with stairs and could walk only one block due to the pain. (Tr. 337.) Though she had full range of motion in the hips and negative straight leg test, there was tenderness on the lumbar paraspinal muscles, especially on the left side and the FABER test was positive towards the left. (Tr. 338.) On April 23, 2013, Scott went to a follow-up appointment with neurologist Dr. Carlos Vinas-Palomino, who found tenderness of the lumbar paraspinal muscles and decreased sensation in her right foot. (Tr. 333-34.) She was advised to continue physical therapy and medications. (Tr. 334.)
On May 23, 2013, Scott saw orthopedic physician Dr. Donald Cally. (Tr. 471-72.) Dr. Cally found generalized lower back and leg pain and found that she should continue with physical therapy, with an MRI and possible injections as options if she did not improve. (Tr. 472.) On June 25, 2013, Scott saw rehabilitation physician Dr. Sumankumar Brambhatt. Dr. Brambhatt found tenderness in the cervical and lumbosacral area, trunk flexion to 80 degrees, cervical spine rotation to 60 degrees, and antalgic gait. (Tr. 466.) She was diagnosed with lumbago and cervicalgia and referred for continued physical therapy. (Tr. 466.)
On September 20, 2013, Scott saw general physician Dr. Efrain Antunez with complaints of tingling and burning pain starting in the thighs and shooting down into her feet. (Tr. 455.) Her physical exam was largely unremarkable, and she was diagnosed with neuralgia, neuritis, and radiculitis, unspecified. (Tr. 456.) Her prescriptions were updated, and she was advised to continue physical therapy. (Tr. 456.) On October 3, 2013, Scott saw physical therapy physician Dr. Mohammad Islam, complaining again of pain and numbness. (Tr. 453.) She stated that she had difficulties in ambulation due to pain and numbness, and could only walk a few blocks without a cane. (Tr. 453.) Dr. Islam found tenderness in her lower back, reduced trunk mobility due to pain, and decreased sensation in her lower extremities. (Tr. 453.) He continued her pain medication. (Tr. 453.)
On October 29, 2013, Scott saw neurologist Dr. Archie Bella. Scott reported constant sharp back pain, radiating from the lateral parts of her legs down to her feet. (Tr. 446.) She stated that she could walk but that this exacerbated the pain. (Tr. 446.) Dr. Bella found decreased sensation on the lateral part of Scott's right leg, and tenderness in the lumbar paraspinal area. (Tr. 446-47.) The motor examination was limited because of Scott's pain, and her psoas muscles were weak secondary to the pain. (Tr. 446-47.) She was prescribed medication and told to continue with therapy. (Tr. 447.) On November 13, 2013, she was evaluated by physical therapist Pui Yee Ng. Scott reported that she was limited to ambulating for 2 blocks and suffered from constant 8/10 pain that radiated to her lower extremities with tingling and numbness. (Tr. 496.)
On May 16, 2014, Scott saw Dr. Antunez for a follow-up. She reported that she had mild discomfort in her right ankle after a fall in February 2014, and was using crutches. (Tr. 419.) Her physical exam was largely normal. (Tr. 420.)
b. Rheumatologic/Dermatologic Issues
On November 15, 2012, Scott saw general practitioner Dr. Kimberly Lam for a skin rash and was referred to dermatology. (Tr. 234-35.) On November 26, 2012, Scott saw dermatologist Dr. Jennifer Vickers, who examined an itchy rash on the arms, trunk, and face and prescribed Clobetasol and TAC cream. (Tr. 230.) On December 10 and 24, 2012, Scott saw dermatologist Dr. James T. Highsmith for this rash, who conducted a biopsy that revealed that she had lupus erythematosus. (Tr. 219-24.) This diagnosis was confirmed by dermatologist Dr. Jennifer Leininger on January 18, 2013, who prescribed Plaquenil. (Tr. 354-55.)
On January 31, 2013, rheumatologist Dr. July Mose confirmed the diagnosis of systemic lupus erythematosus with possible connective tissue disease. (Tr. 347-49.) She was sent for a baseline chest CT scan, which showed pulmonary nodules in her left lung. (Tr. 381.) On March 5, 2013, she had a follow-up appointment with Dr. Highsmith, who noted that her lupus-induced skin patches were improving with continued use of medication. (Tr. 342.) On April 30, 2013, she saw rheumatologist Dr. Gonzalo Olivares Maldonado and reported improvement in rashes but a continuation of joint pain. (Tr. 474.)
On June 20, 2013, Dr. Vickers (who saw Scott in November 2012) noted some improvement in her lupus skin symptoms upon continued use of medication. (Tr. 469.) Scott was advised to continue her treatment, use sunscreen, wear protective clothing, and stop smoking. (Tr. 469.) On August 15, 2013, Scott saw dermatologist Dr. Jennifer Leininger, complaining of fatigue and nausea, increased muscle and joint pain, and a new skin rash behind her ears. (Tr. 463.) On September 6, 2013, on a visit to rheumatologist Dr. Sushama Mody, Scott noted continued back and lower extremity pain, and a physical exam was unremarkable. (Tr. 460.)
On October 17, 2013, Scott saw dermatologist Dr. David Weinstein for a follow-up appointment. Dr. Weinstein noted the continued presence of a rash behind her ears and hyperpigmented papules and macules on her chest and arms. (Tr. 449.) He prescribed a cream and recommended follow-up with a pulmonary physician regarding her lung nodules. (Tr. 449.)
On February 12, 2014, a biopsy was conducted that showed discoid lupus erythematosus. (Tr. 405-07.) A March 20, 2014 visit with Dr. Leininger and a June 20, 2014 visit with Dr. Weinstein confirmed this diagnosis and continued her medications. (Tr. 425-27. 416.)
c. Respiratory/Pulmonary Issues
Scott was diagnosed with asthma by pulmonary physician Dr. Rajapriya Manickam on January 8, 2014, following reports of upper respiratory infections and bronchitis. (Tr. 440.) See Tr. 500-05 (December 30, 2013 emergency room visit reporting cough and shortness of breath). Scott also was diagnosed with sinusitis and referred for turbinate reduction surgery and microlaryngoscopy on May 5, 2014. (Tr. 423-24.)
2. Consulting Physicians
Psychologist Dr. Haruyo Fujiwaki performed a psychiatric evaluation of Scott on May 16, 2013. (Tr. 209-12.) After summarizing her self-reported medical history, including lupus, difficulty walking, right arm pain, and neck pain, Dr. Fujiwaki noted that Scott reported that she has been depressed and anxious since approximately 2005, primarily due to her medical issues. (Tr. 209.) Dr. Fujiwaki found that Scott had dysthymic mood but no signs of mania or psychosis, and was mildly impaired in her attention, concentration, and memory skills. (Tr. 210-11.) Scott reported to Dr. Fujiwaki that she was unemployed after she was diagnosed with lupus, but could take care of her daily tasks, do household chores, and take public transportation alone. (Tr. 211.) Vocationally, Dr. Fujiwaki judged that Scott was able to follow and understand simple directions and instructions and complete simple tasks independently, but would be mildly impaired in maintaining attention and concentration, learning new tasks and performing complex tasks independently, and relating with others and dealing with stress appropriately. (Tr. 211.) On June 12, 2013, State agency psychologist L. Blackwell reviewed the record, including Dr. Fujiwaki's report, and assessed that Scott did not have restrictions in performing activities of daily living, and mild difficulties maintaining social functioning, concentration, persistence, and pace. (Tr. 55-56.)
Dr. Ted Woods performed an internal medicine evaluation of Scott on the same date as Dr. Fujiwaki's exam. Dr. Woods noted that Scott's chief complaints were lupus, lower back pain (radiating down bilaterally into both feet), right arm pain, and neck pain. (Tr. 213-14.) Scott reported that she can walk about a block and a half before she has to stop and can tolerate between two and three flights of stairs. (Tr. 213.) Scott reported to Dr. Woods that she was able to perform all of the basic activities of daily living, including cooking, cleaning, laundry, shopping, and bathing, albeit slowly. (Tr. 214.)
On a physical examination, Scott had difficulty walking on her toes and heels, but had normal gait and stance and used no assistive devices. (Tr. 214.) Dr. Woods found that Scott had full motion in her cervical and lumbar spines, but did report pain in the cervical spine during the examination. (Tr. 215.) Scott's straight leg test was positive bilaterally at 20 degrees and confirmed on sitting. (Tr. 215.) Scott had full range of motion in her shoulders, elbows, and wrists, but was slow to perform these maneuvers. (Tr. 215.) She had hip flexion and extension to 40 degrees and rotation to 20 degrees, and knee flexion to 100 degrees, but experienced pain upon hip flexion. (Tr. 215.) She had 5/5 grip strength bilaterally. (Tr. 215.)
Dr. Woods found that Scott's diagnoses were lupus, low back pain, neck pain, and arm pain and that she would have moderate limitations to squatting, kneeling, and prolonged sitting and standing. (Tr. 216.) Dr. Woods did not, however, examine Scott's CT scan findings, noting only her self-report that "she had an MRI [sic] done of her low back a couple of months ago" but was "unsure of the results." (Tr. 213.) Therefore, he could not consider the clinical findings of disc herniation and spinal and foraminal stenoses discovered via imaging.
C. The ALJ Hearing
At the August 12, 2014 hearing before ALJ Jerome Hornblass, Scott appeared represented by counsel. In summarizing her employment history, Scott stated that she worked as a hairstylist in her home in 2011 and 2012 (Tr. 27-29), but had to quit working because of issues, including pain and numbness, with a finger on her right hand. (Tr. 31-33.) Scott stated that this problem, a neuritis or other nerve condition, ran from her finger to the elbow and stemmed from a fall in her apartment building around 2009. (Tr. 31.)
Scott testified that she walked with a cane due to spinal and back injuries. (Tr. 38.) She referenced suffering from fatigue on account of her lupus and the side effects of Plaquenil, a medication she took to control the condition. (Tr. 43.) Scott also reported lupus-related joint pains. (Tr. 45.) She stated that she could stand comfortably for a maximum of 15 minutes, and could walk for 10 to 15 minutes before she needed to stop. (Tr. 44.) She also stated that sitting was difficult for more than 15 minutes due to aching bones. (Tr. 44.) While she did take pain management medications, she stated that it was relatively ineffective at reducing her pain levels. (Tr. 45.) Scott also reported difficulties breathing due to the nodules in her lungs. (Tr. 45-46.) She stated that she had to use an asthma pump twice weekly to control these symptoms. (Tr. 46.)
In terms of her daily activities, Scott reported that she could not help out with cooking because her back and arm pain impeded her from standing excessively in the kitchen. (Tr. 46.) She stated that her children did the shopping, laundry, and house cleaning, and that she primarily spent her day taking medicine and dealing with her pain and watching television. (Tr. 46-48.) She helped prepare the children in her household for their day, but her son took them to school. (Tr. 47.) She did try to make it to her church, located 10 blocks away from her home, whenever possible, but always by cab or car, because she stated that she could not walk there. (Tr. 49-50.)
II. The ALJ Decision
In an October 8, 2014 decision, ALJ Hornblass found that Scott had four severe impairments as defined in 20 C.F.R. §§ 404.1520(c) and 416.920(c); systemic lupus erythematosus (SLE); degenerative disc disease and herniation of the lumbar and cervical spines; right ankle fracture; and chronic asthma/COPD with a history of lung nodules. (Tr. 14.) He found that the medically determinable mental impairments of depressive disorder and a history of substance abuse did not cause more than a minimal limitation in Scott's ability to perform work and were therefore non-severe. (Tr. 14.)
Nevertheless, at step three of the sequential analysis, the ALJ found that the impairments did not meet or equal the severity of any listed impairment. (Tr. 16.) The ALJ focused specifically on sections 1.04 (disorders of the spine) and 14.02 (systemic lupus erythematosus) of the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 16.) The ALJ did not, however, provide detailed reasons for his finding, stating only that he could not "find that the relevant findings noted in those sections are present; or that the combined effect of the claimant's various impairments produces an impairment of sufficient severity that a listed impairment would be equals [sic]." (Tr. 16.)
Moving on to calculate Scott's residual functional capacity (RFC), the ALJ found that Scott could perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) with the limitation that she could not work in areas with excessive pulmonary irritants due to her asthma/COP. (Tr. 16.) In reaching this conclusion, the ALJ found that while Scott's impairments could reasonably cause the symptoms alleged by Scott, her statements concerning the intensity, persistence, and limiting effects of the symptoms was not entirely credible. (Tr. 17.) The ALJ noted inconsistencies in Scott's reasoning for why she stopped working as a hairstylist in 2012 (specifically, whether this was due to right arm symptoms or lupus). (Tr. 17.) The ALJ also found a lack of medical evidence supporting Scott's right arm difficulties, noting that EMG testing failed to document right ulnar neuropathy or radiculopathy and there was a lack of treatment notes concerning this symptom. (Tr. 18.)
Considering Scott's back and spine issues, the ALJ found that while Scott did suffer from cervical disc disease and herniation, testing confirmed the absence of radiculopathy. (Tr. 18.) The ALJ stated that complaints in the treatment record indicated less severe exertional constraints, because at times Scott had estimated that she could walk two blocks without difficulty. (Tr. 18.)
In regards to Scott's SLE, the ALJ found that this primarily produced skin eruptions and plaques that were controlled by medications, and her complaints of joint pain were infrequent and responded to treatment. (Tr. 18.) The ALJ also noted that treatment notes did not identify significant problems with her right ankle fracture and Scott reported only mild discomfort stemming from it. (Tr. 18.)
In light of these conclusions, the ALJ noted that the significant limitations on Scott's ability to stand and walk warranted her restriction to sedentary work. (Tr. 19.) He did not, however, adopt consultative examiner Dr. Woods's finding that she had a moderate limitation on sitting, stating that the treatment records from Metropolitan Hospital did not have any sitting-related complaints. (Tr. 18-19.) Finally, he concluded that Scott retained the RFC to perform the lifting, carrying, and manipulating required of sedentary work because of the lack of medical evidence of her right arm complaints. (Tr. 19.) In sum, he found that Scott could stand and walk for up to two hours and sit for up to six hours in an eight-hour work day. (Tr. 19.)
At step four, the ALJ determined that Scott could not return to her past relevant employment because hairdressing required exertion beyond the sedentary range. (Tr. 19.) At step five, the ALJ applied the Medical-Vocational Guidelines and determined that Scott's non-exertional limitations involving pulmonary irritants had little or no effect on the occupational base of unskilled sedentary work as per SSR 85-15, and therefore applied Medical-Vocational Rule 201.25 to find that Scott was not disabled. (Tr. 20.)
ANALYSIS
I. Standard of Review
A motion for judgment on the pleadings should be granted if it is clear from the pleadings that "the moving party is entitled to judgment as a matter of law." Burns Int'l Sec. Servs., Inc. v. Int'l Union, 47 F.3d 14, 16 (2d Cir. 1995). In reviewing a decision of the Commissioner, a court may "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The ALJ's disability determination may be set aside if it is not supported by substantial evidence. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). "Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the findings of the Commissioner as to any fact are supported by substantial evidence, those findings are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995). "[O]nce an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault v. Soc. Sec'y Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (internal quotation marks and emphasis omitted).
When, as here, the Court is presented with an unopposed motion, it may not find for the moving party without reviewing the record and determining whether there is a sufficient basis for granting the motion. See Wellington v. Astrue, 12-CV-3523 (KBF), 2013 WL 1944472, at *2 (S.D.N.Y. May 9, 2013) (recognizing, in an action appealing the denial of disability benefits, the court's obligation to review the record before granting an unopposed motion for judgment on the pleadings); Martell v. Astrue, 09-CV-1701 (NRB), 2010 WL 4159383, at *2 n.4 (S.D.N.Y. Oct. 20, 2010) (same); cf. Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004) ("[C]ourts, in considering a motion for summary judgment, must review the motion, even if unopposed, and determine from what it has before it whether the moving party is entitled to summary judgment as a matter of law." (citation and internal quotation marks omitted)).
Pro se litigants "are entitled to a liberal construction of their pleadings," and, therefore, their complaints "should be read to raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (citation and internal quotation marks omitted); see also Alvarez v. Barnhart, 03-CV-8471 (RWS), 2005 WL 78591, at *1 (S.D.N.Y. Jan. 12, 2005) (articulating liberal pro se standard in reviewing denial of disability benefits).
II. Definition of Disability
A claimant is disabled under the Social Security Act if she demonstrates 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. § 1382c(a)(3)(A). A determinable physical or mental impairment is defined as one that "results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 1382c(a)(2)(D). A claimant will be determined to be disabled only if the impairments are "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. § 1382c(a)(2)(B).
The Social Security Administration has established a five-step sequential evaluation process for making disability determinations. See 20 C.F.R. § 416.920(a)(4). The steps are followed in order: if it is determined that the claimant is not disabled at a step of the evaluation process, the evaluation will not progress to the next step. The Court of Appeals has described the process as follows:
First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a "severe impairment" that significantly limits her physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in 20 C.F.R. Pt. 404, subpt. P, app. 1 [(the "Listings")] . . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform his past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (citation omitted). A claimant bears the burden of proof as to the first four steps. Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). It is only after the claimant proves that she cannot return to prior work that the burden shifts to the Commissioner to show, at step five, that other work exists in the national and local economies that the claimant can perform, given her residual functional capacity, age, education and past relevant work experience. 20 C.F.R. 404.1560(c)(2); Melville, 198 F.3d at 51.
III. Analysis
A. ALJ's "Step Three" Analysis is Supported by Substantial Evidence
As the ALJ found for the claimant in steps one and two of the Social Security Administration's sequential five-step process, the Court reviews whether his decision that Scott's admittedly severe physical impairments did not meet or medically equal the criteria of a listed impairment was supported by substantial evidence. "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
ALJ Hornblass's decision did not specifically discuss the requirements of sections 1.04 and 14.02 of the listings, contrary to the admonition of the Court of Appeals that ALJs "should set for a sufficient rationale in support for [their] decision to find or not to find a listed impairment." Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982). The Court of Appeals has also stated, however, that "the absence of an express rationale for an ALJ's conclusions does not prevent us from upholding them so long as [the Court is] 'able to look to other portions of the ALJ's decision and to clearly credible evidence in finding that his determination was supported by substantial evidence.'" Salmini v. Comm'r of Soc. Sec., 371 F. App'x 109, 112-13 (2d Cir. 2010) (summary order) (quoting Berry, 675 F.2d at 469). Therefore, the Court considers the entirety of the decision in deciding whether the ALJ's determination that Scott's impairments did not meet or equal a listed impairment was supported by substantial evidence.
Listing 14.02 relates to systemic lupus erythematosus (SLE), which it is uncontested that Scott suffers from. In order to meet or equal the severity of the listing, a claimant must have:
A. Involvement of two or more organs/body systems, with:
1. One of the organs/body systems involved to at least a moderate level of severity; and
2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss).
OR
B. Repeated manifestations of SLE, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:
20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 14.02.1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.
There is substantial evidence in the medical record to support the ALJ's conclusion that Scott does not meet the requirements of either 14.02(A) or (B). The medical evidence available from Scott's treating physicians does not indicate that Scott suffers from SLE's constitutional symptoms or that any of the body systems enumerated in the listing have been affected, and it confirms that her primary complaints were dermatological. (Tr. 416, 426, 449, 463, 469.) Nor does any of the medical evidence suggest that Scott's SLE creates marked limitations for her activities of daily living, social functioning, or concentration, persistence, or pace. While Scott did report fatigue and joint pain to both her treating physicians and the ALJ (Tr. 43, 45, 463, 474), there is no evidence that these symptoms, standing alone or taken together, caused marked limitations in the relevant categories.
Major organ or body system involvement can include: Respiratory (pleuritis, pneumonitis), cardiovascular (endocarditis, myocarditis, pericarditis, vasculitis), renal (glomerulonephritis), hematologic (anemia, leukopenia, thrombocytopenia), skin (photosensitivity), neurologic (seizures), mental (anxiety, fluctuating cognition ("lupus fog"), mood disorders, organic brain syndrome, psychosis), or immune system disorders (inflammatory arthritis). 20 C.F.R. Pt. 404, Subpt. P, App'x. 1 § 14.00(D)(1)(a).
Listing 1.04 relates to disorders of the spine. As relevant here, Section 1.04C refers to "[l]umbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively . . . ." 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 1.04C. An inability to ambulate means "an extreme limitation of the ability to walk ... [and] having insufficient lower extremity functioning [ ] to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities." Id. at § 1.00B2b(1). Effective ambulation means being capable of "sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living [and having] the ability to travel without companion assistance to and from a place of employment or school." Id. at § 1.00B2b(2). Examples of ineffective ambulation include an "inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail." Id.
Listings 1.04A and 1.04B are not applicable here. Listing 1.04A, relating to nerve root compression, requires evidence of motor loss, and Scott's physical examinations consistently indicated normal or near normal strength in the lower extremities. Listing 1.04B refers to spinal arachnoiditis, and there is no medical evidence of this condition in the record.
Medical imaging conducted on February 6, 2013, confirmed that Scott suffered from spinal and foraminal stenosis. (Tr. 377-80.) Scott did complain of chronic nonradicular pain and weakness, as well as tingling and numbness in her lower extremities to her treating physicians (Tr. 333-34, 453, 455, 496.) Substantial evidence in the record, however, indicates that, while admittedly subject to moderate limitations, Scott's ability to ambulate was "effective" within the definition provided by listings.
While the medical record indicates that Scott stated at various times that she could only walk approximately two blocks without stopping (Tr. 213, 345, 453, 496), her treatment records were inconsistent except for persistent lumbar paraspinal tenderness. See Tr. 352 (Dr. Scott - positive straight leg test at 45 degrees and intact strength); Tr. 338 (Dr. Rodriguez - full range of motion in the hips and negative straight leg test); Tr. 466 (Dr. Brambhatt - trunk flexion to 80 degrees, cervical spine rotation to 60 degrees, and antalgic gait); Tr. 456 (Dr. Antunez - largely unremarkable physical exam); Tr. 453 (Dr. Islam - reduced trunk mobility and decreased sensation in lower extremities). Consultative physician Dr. Woods found full range of motion in her cervical and lumbar spine, shoulders, elbows, wrists, and ankles, as well as a normal gait and stance. (Tr. 214-15.) The record regarding whether Scott uses an assistive device is also unclear; Dr. Woods stated that she used no assistive devices (Tr. 214), while the medical records refer alternatively to a cane (Tr. 453) or a cart (Tr. 345).
While the Social Security regulations require the ALJ to give controlling weight to the opinions of "treating sources" when those opinions are well-supported by medical evidence and "not inconsistent with the other substantial evidence," 20 C.F.R. § 416.927(c)(2), in this case the medical records demonstrate that Scott saw many treating physicians who made differing conclusions regarding their physical examinations. Therefore, while the ALJ had to consider all of the medical evidence in the record from both treating and consultative source, no one physician or groups of physicians was entitled to controlling weight.
On the record before him, the ALJ's conclusion that Scott did not meet the requirements of listing 1.04C was supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Halloran, 362 F.3d at 31. The regulations set a high standard for a finding that an individual is incapable of ambulating effectively, requiring a two-handed assistive device that limits the functioning of both upper extremities. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00B2b(1). While there is an isolated reference to Scott using a cart (Tr. 345), her hearing testimony and most references in the medical record refer to her use of a cane. (Tr. 38, 151, 453.) Moreover, even if he accorded full credibility to Scott's testimony about her ambulation being limited to two blocks, the ALJ could find that this was not as severe as "the inability to walk a block at a reasonable pace on rough or uneven surfaces" or "the inability to climb a few steps at a reasonable pace with the use of a single hand rail." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00B2b(1).
Accordingly, despite the fact that the ALJ failed to tailor his analysis to the listings at step three, other portions of the decision and evidence in the record suggest that his determination that Scott's impairments did not meet or medically equal the severity of a listed impairment is supported by substantial evidence.
B. ALJ's Calculation of Residual Functional Capacity
In calculating Scott's RFC, the ALJ considered Scott's medical treatment history as well as Dr. Woods's consultative opinion that she had "moderate limitations" in squatting, kneeling, and prolonged sitting and standing. (Tr. 216.) These findings, which were generally consistent with the medical record, were based on a largely normal physical examination in which Scott's gait and stance was normal, she could get changed and rise from a chair without difficulty, she had full range of motion in her cervical and lumbar spine, shoulders, elbows, wrists, and ankles, full strength in her upper and lower extremities and no joint tenderness or sensory deficits. (Tr. 213-16.) The ALJ chose not to credit, however, the moderate limitations on sitting, because there was no indication that this was ever raised as a limitation by Scott when she received treatment at Metropolitan Hospital. (Tr. 19.) As far as her nonexertional limitations, the ALJ found that her asthma was mild and medically controlled, but necessitated that she work in an area without pulmonary irritants. (Tr. 19.) These examination results were supported by others in Scott's treatment history. See Tr. 333 (Dr. Palomino - April 2013 examination finding full strength in upper and lower extremities with some sensory deficit in right foot); Tr. 472 (Dr. Cally - largely unremarkable May 2013 examination); Tr. 456 (Dr. Antunez - largely unremarkable September 2013 examination); Tr. 420 (Dr. Antunez - largely unremarkable May 2014 examination).
Accordingly, the ALJ concluded that Scott retained the RFC to perform the lifting, carrying, and manipulating up to 10 pounds, sit for up to six hours and stand or walk for up to two hours in an eight-hour work day. (Tr. 19.)
In light of the lack of a consistent treating physician, ALJ did not err in according significant weight to Dr. Woods's consultative opinion. Moreover, his reasoning for rejecting Dr. Woods's moderate restriction on sitting was justified because none of the treatment notes referred to sitting limitations and Dr. Woods did not explain the rationale for this limitation. See, e.g., Christina v. Colvin, 594 F. App'x 32, 33 (2d Cir. 2015) (summary order) (affirming ALJ's decision to discount a part of consultative physician opinion not supported by record). Nevertheless, there is one crucial flaw in Dr. Woods's report that should have given the ALJ pause, and gave rise to the ALJ's affirmative responsibility to develop the record.
When the ALJ assesses a claimant's alleged disability, he, "unlike a judge in a trial, must on behalf of all claimants . . . affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted); see also 42 U.S.C. § 423(d)(5)(b), 20 C.F.R. § 404.1512(d). Under this duty, the ALJ must "make every reasonable effort to obtain from the individual's treating physician (or other treating health care provider) all medical evidence including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtained from any source on a consultative basis." 42 U.S.C. § 423(d)(5)(B). See Devora v. Barnhart, 205 F. Supp. 2d 164, 174 (S.D.N.Y. 2002). The regulations state that when a consultative examination is held, the SSA "will . . . give the examiner any necessary background information about [the claimant's] condition." 20 C.F.R. § 404.1517(b).
When Dr. Woods examined Scott, he relied on Scott's self-reporting that "she ha[d] an MRI done of her low back a couple of months ago [and] is unsure of the results." (Tr. 213.) Dr. Woods was not provided Scott's CT scan findings by either the SSA or the claimant. In fact, Scott had a CT scan, not a MRI, and the findings were far from normal, showing marked bilateral spinal and foraminal stenosis and disc herniation in different areas in her back. (Tr. 377-80.) Therefore, Dr. Woods was compelled to conduct his examination and make his conclusions about Scott's physical limitations in the absence of highly probative medical imaging about her spinal condition. While it is possible that he may have reached the same conclusion had this information been available to him, neither the ALJ nor the Court are equipped to make such a finding; Scott's limitations, based on all of the available medical evidence, must be evaluated by a medical expert.
This error is not harmless, and requires remand. The treating physician notes concerning Scott's back condition, while voluminous, do not affirmatively provide any medical opinions about the extent of Scott's limitations, and are largely limited to Scott's self-reporting of her impairments and the results of physical exams. Therefore, Dr. Woods's consultative opinion—the only opinion in the record to make conclusions about the limitations posed by Scott's impairments—was virtually dispositive to the ALJ's RFC findings (with the exception of Dr. Woods's conclusion regarding Scott's sitting limitations). To the extent that that opinion itself was based on an obviously incomplete evidentiary record missing test results crucial to a proper diagnosis, the ALJ should have ordered an additional consultative examination that took into consideration Scott's spinal imaging.
Alternatively, the ALJ could have requested a medical report from one of Scott's treating physicians, which would include a "statement of what [Scott] can still do despite [her] impairment(s) based on the acceptable medical source's finding." 20 C.F.R. §§ 404.1513(b); 416.913(b). While the ALJ is not required to seek a medical source statement where the record is otherwise fully developed, see Tankisi v. Comm'r of Soc. Sec., 521 F. App'x 29, 34 (2d Cir. 2013) (summary order), in this case, the record contained no professional opinions as to Scott's functional limitations by any physician who was fully informed of the objective radiological findings on her CT exam. Given this significant flaw in the record, the ALJ should have sought additional information from a treating source, if not Dr. Woods.
Accordingly, the ALJ's calculation of Scott's RFC was not based on substantial evidence and therefore, this case should be remanded to the Commissioner.
C. ALJ's Application of the Medical-Vocational Guidelines
Because I conclude that the ALJ could not have properly determined Scott's RFC without further development of the administrative record, I cannot pass on whether the ALJ properly applied the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. In the event, however, that the Court finds that the administrative record was fully developed and Scott's RFC was properly calculated as sedentary, I recommend that the ALJ's reliance on the Guidelines be found to be proper. Scott's primary limitations are exertional, and the ALJ properly found that her additional non-exertional limitations had little to no effect on the occupational base of unskilled sedentary work. See SSR 85-15 ("Where a person has a medical restriction to avoid excessive amounts of noise, dust, etc., the impact on the broad world of work would be minimal because most job environments do not involve great noise, amounts of dust, etc.") Therefore, if the RFC were properly calculated, the Commissioner would have met his burden at step five to demonstrate that, considering her age, education, work experience and RFC, there are jobs that exist in significant numbers in the national economy that Scott can perform. See 20 C.F.R. §§ 404.1569 and 416.969.
CONCLUSION
For the foregoing reasons, the Court recommends that the Commissioner's motion for judgment on the pleadings be DENIED. The Court recommends REMAND to the ALJ to develop the record fully by means of a consultative examination that considers all available medical information for Scott, including but not limited to her CT scan results, and/or the solicitation of a medical source statement regarding her limitations from one of Scott's treating physicians familiar with her record and qualified to interpret her imaging results.
/s/_________
SARAH NETBURN
United States Magistrate Judge
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NOTICE OF PROCEDURE FOR FILING OBJECTIONS
TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed. R. Civ. P. 5(b)(2)(C), (D), or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). DATED: March 16, 2017
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