Opinion
1:21-CV-00200 EAW
2023-02-13
SEAN R., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Felice A. Brodsky, Lockport, NY, Sarah A. Frederick, Frederick Law Offices, PLLC, Orchard Park, NY, for Plaintiff. Rebecca Hope Estelle, Office of Program Litigation, Office 2 Office of General Counsel, Baltimore, MD, for Defendant.
Felice A. Brodsky, Lockport, NY, Sarah A. Frederick, Frederick Law Offices, PLLC, Orchard Park, NY, for Plaintiff. Rebecca Hope Estelle, Office of Program Litigation, Office 2 Office of General Counsel, Baltimore, MD, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Represented by counsel, Plaintiff Sean R. ("Plaintiff") brings this action pursuant to Titles II and XVI of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 20; Dkt. 21), and Plaintiff's reply (Dkt. 28). For the reasons discussed below, Plaintiff's motion (Dkt. 20) is granted to the extent that the matter is remanded for further administrative proceedings, and the Commissioner's motion (Dkt. 21) is denied.
BACKGROUND
Plaintiff protectively filed his applications for DIB and SSI on January 19, 2018. (Dkt. 12 at 19, 115-16). In his applications, Plaintiff alleged disability beginning on June 1, 2017, due to the following conditions: ADHD; anxiety; bipolar disorder; depression; insomnia; panic attacks; agoraphobia; heart attack; swelling in legs; shortness of breath; neck pain—rupture/bulging discs; broken shoulder blade; and PTSD from a motorcycle accident. (Id. at 19, 86, 101). Plaintiff's applications were initially denied on May 17, 2018. (Id. at 19, 121-36). A video hearing was held before administrative law judge ("ALJ") Juan-Carlos Hunt on November 25, 2019. (Id. at 19, 34-84). Plaintiff appeared and testified in West Seneca, New York, and the ALJ presided over the hearing from Falls Church, Virginia. (Id.). On January 30, 2020, the ALJ issued an unfavorable decision. (Id. at 16-29). Plaintiff requested Appeals Council review; his request was denied on December 1, 2020, making the ALJ's determination the Commissioner's final decision. (Id. at 5-10). This action followed.
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper right-hand corner of each document.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("SSA")], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It is not the Court's function to "determine de novo whether [the claimant] is disabled." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law." Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
II. Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Bowen v. City of New York, 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ determines whether the claimant is engaged in substantial gainful work activity. See 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act, in that it imposes significant restrictions on the claimant's ability to perform basic work activities. Id. §§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment or combination of impairments, the analysis concludes with a finding of "not disabled." If the claimant does have at least one severe impairment, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant's impairment meets or medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the "Listings"). Id. §§ 404.1520(d), 416.920(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement, id. §§ 404.1509, 416.909, the claimant is disabled. If not, the ALJ determines the claimant's residual functional capacity ("RFC"), which is the ability to perform physical or mental work activities on a sustained basis, notwithstanding limitations for the collective impairments. See id. §§ 404.1520(e), 416.920(e).
The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work. Id. §§ 404.1520(f), 416.920(f). If the claimant can perform such requirements, then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled. Id. §§ 404.1520(g), 416.920(g). To do so, the Commissioner must present evidence to demonstrate that the claimant "retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy" in light of the claimant's age, education, and work experience. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted); see also 20 C.F.R. § 404.1560(c).
DISCUSSION
I. The ALJ's Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in 20 C.F.R. §§ 404.1520 and 416.920. Initially, the ALJ determined that Plaintiff last met the insured status requirements of the Act on June 30, 2018. (Dkt. 12 at 21). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since June 1, 2017, the alleged onset date. (Id.).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "spine disorders, other diseases of circulatory system; anxiety; obsessive-compulsive disorder; depression; bipolar; and, attention deficit hyperactivity disorder." (Id. at 22). The ALJ further found that Plaintiff's medically determinable impairment of history of broken shoulder blade was non-severe. (Id.). With respect to Plaintiff's representations that he suffered from insomnia, asthma, post-traumatic stress disorder, swelling in the legs, and shortness of breath, the ALJ concluded that these were not medically determinable impairments. (Id.).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. at 22). The ALJ particularly considered the criteria of Listings 1.04, 12.04, 12.06, and 12.11 in reaching his conclusion. (Id. at 22-24).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), except:
he occasionally can balance, crouch, kneel, crawl, stoop, and climb ramps, stairs, ladders, and scaffolds; he frequently can push, pull, handle, finger, feel, and reach except he occasionally can reach overhead bilaterally; he occasionally can push, pull, and operate foot controls bilaterally; he can have no concentrated exposure to fumes, dusts,
odors, gases, poor ventilation and other pulmonary irritants; he can have no exposure to hazards, such as unprotected heights, machines with moving mechanical parts and driving employer vehicles; he can understand, remember, and carry out simple instructions; he frequently can interact with supervisors, coworkers, and the public; he can make simple work related decisions; he can tolerate few changes in a routine work setting; and, he will be off task ten percent of the day due to, for example, alternating positions or attention and concentration lapses.(Id. at 24). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 27-28).
At step five, the ALJ relied on the testimony of a vocational expert ("VE") to conclude that, considering Plaintiff's age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of inspector and cashier II. (Id. at 28-29). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 29).
II. Remand for Further Administrative Proceedings is Required
Plaintiff asks the Court to remand this matter to the Commissioner, arguing: (1) the ALJ's RFC finding was not based on substantial evidence with regard to off-task limitations; (2) the ALJ erred in failing to follow SSR 85-16 and to consider the third-party lay testimony of Plaintiff's mother and Ryan White, Plaintiff's case manager at Pinnacle Community Services; and (3) the ALJ improperly substituted his "non-medical" judgment as a lay person over that of any psychiatrist of psychologist regarding Plaintiff's mental limitations. (See Dkt. 20-1 at 1, 11-31). For the following reasons, remand for further administrative proceedings is required.
A. The Mental RFC
Although the RFC contains a physical component, the bulk of Plaintiff's arguments focus on the ALJ's assessment of the mental RFC. In deciding a disability claim, an ALJ is tasked with "weigh[ing] all of the evidence available to make an RFC finding that [is] consistent with the record as a whole." Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013). It is well-settled that an ALJ's conclusion need not "perfectly correspond with any of the opinions of medical sources cited in his decision." Id. However, an ALJ is not a medical professional, and "is not qualified to assess a claimant's RFC on the basis of bare medical findings." Ortiz v. Colvin, 298 F. Supp. 3d 581, 586 (W.D.N.Y. 2018) (quotation omitted). In other words:
An ALJ is prohibited from 'playing doctor' in the sense that 'an ALJ may not substitute his own judgment for competent medical opinion . . . .' This rule is most often employed in the context of the RFC determination when the claimant argues either that the RFC is not supported by substantial evidence or that the ALJ has erred by failing to develop the record with a medical opinion on the RFC.Quinto v. Berryhill, No. 3:17-cv-00024 (JCH), 2017 WL 6017931, at *12 (D. Conn. Dec. 1, 2017) (citations omitted). "[A]s a result[,] an ALJ's determination of RFC without a medical advisor's assessment is not supported by substantial evidence." Dennis v. Colvin, 195 F. Supp. 3d 469, 474 (W.D.N.Y. 2016) (quotation and citation omitted). However, at bottom, "[a]n RFC finding is administrative in nature, not medical, and its determination is within the province of the ALJ, as the Commissioner's regulations make clear." Curry v. Comm'r of Soc. Sec., 855 F. App'x 46, 48 n.3 (2d Cir. 2021).
At step two of the sequential analysis, the ALJ identified several severe mental impairments, including: "anxiety; obsessive-compulsive disorder; depression; bipolar; and, attention deficit hyperactivity disorder." (See Dkt. 12 at 22). To accommodate these impairments, the ALJ assessed a mental RFC limiting Plaintiff to simple work, including that "he can understand, remember, and carry out simple instructions; he frequently can interact with supervisors, coworkers, and the public; he can make simple work related decisions; he can tolerate few changes in a routine work setting; and, he will be off task ten percent of the day due to, for example . . . attention and concentration lapses." (Id. at 24). The ALJ explained that he accommodated Plaintiff's physical and mental impairments with an off-task limitation "because the claimant may need to alternate positions or experience a brief lapse in attention or concentration." (Id. at 27). The ALJ did not explain how he reached the ten percent off-task limitation, nor is it otherwise apparent from the record.
In response to Plaintiff's argument regarding the off-task limitation, the Commissioner contends that the ALJ properly evaluated the opinions in the record and the evidence in reaching the RFC finding, Plaintiff's argument relies on outdated regulations governing medical opinion evidence, and the RFC finding is not a medical determination. (See Dkt. 21-1 at 12-22). It is well-settled that an RFC finding is administrative in nature and, for that reason, the ALJ is not required to adopt any one medical opinion in its entirety; rather, the ALJ's RFC finding must be supported by substantial evidence in the record. See Matta, 508 F. App'x at 56. Further, because Plaintiff's claim was filed after March 27, 2017, the new regulations—which provide new guidelines for the ALJ's evaluation of opinion evidence—apply to Plaintiff's disability claim. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01, at *5844 (Jan. 18, 2017). For example, the ALJ is no longer required to give "controlling weight" to a treating physician's opinion. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). However, the new regulations did not relieve the ALJ of his general duty to develop the medical record, or otherwise abrogate the general principle that an administrative hearing is not adversarial in nature.
As to Plaintiff's mental limitations, the only medical opinion in the record is from the state agency medical consultant, H. Tzetzo, M.D., who opined that Plaintiff can perform simple work tasks and follow directions, with brief and superficial contact with supervisors, co-workers, and the public. (See Dkt. 12 at 27; see also id. at 91). Dr. Tzetzo did not examine Plaintiff, nor did the ALJ order a consultative examination, so that a mental health professional could conduct an in-person interview and examination of Plaintiff. Standing alone, the failure to order a consultative examination is not error because an ALJ may rely on the opinion of a state agency medical consultant in assessing the RFC. See, e.g., Tamara M. v. Saul, No. 3:19-CV-1138 (CFH), 2021 WL 1198359, at *7 (N.D.N.Y. Mar. 30, 2021) ("In assessing a plaintiff's RFC, the ALJ may rely on opinions from examining and non-examining State agency medical consultants because they are qualified experts in the field of social security disability."). The RFC, which requires that Plaintiff perform simple work, is consistent with Dr. Tzetzo's opinion that Plaintiff can perform simple work tasks and follow directions.
However, to the extent the RFC requires "frequent" contact with others, it is not consistent with Dr. Tzetzo's opinion that Plaintiff can tolerate "brief and superficial contact" with others. The ALJ explained that he did not credit this portion of Dr. Tzetzo's opinion and that Plaintiff can interact with others "frequently," based on "routine findings that [Plaintiff] is pleasant, cooperative, and able to maintain good eye contact." (Dkt. 12 at 27; see also id. at 26). However, it is not clear to the Court how these objective findings relating to Plaintiff's mood, affect, and grooming in an examination environment lead to the conclusion that Plaintiff can interact with others "frequently" in a work-related environment, particularly considering other evidence in the record, including the testimony of Plaintiff's mother, who reported that Plaintiff does not leave his room unless he needs to use the bathroom or shower, and becomes anxious and upset when leaving the house, describing him as a "prisoner" to his room. (Dkt. 12 at 66-68). Plaintiff's mother also described Plaintiff's extreme paranoia, which has led to psychiatric hospitalizations and his belief that others are listening in to his phone. (Id. at 68-70). However, the written determination includes no discussion of Plaintiff's mother's testimony, so it is unclear whether or how the ALJ considered it when assessing the RFC and Plaintiff's capacity for interacting with others. While "[a]n ALJ is not required to explicitly analyze every piece of conflicting evidence in the record," see Kevin F. v. Comm'r of Soc. Sec., No. 5:18-CV-1454 (ATB), 2020 WL 247323, at *2 (N.D.N.Y. Jan. 16, 2020), given the length of and degree to which Plaintiff's mother's testimony conflicts with an RFC requiring Plaintiff to engage in frequent contact with others—which again is inconsistent with Dr. Tzetzo's opinion (the only opinion directly addressing the subject in the record)—the ALJ should have explained why he found Plaintiff's mother's testimony not persuasive.
Finally, with respect to the off-task limitation, it is unclear how the ALJ arrived at the specific durational requirement of ten percent. In support of his position, Plaintiff cites to Cosnyka v. Colvin, where the ALJ found that the plaintiff would be "off-task" for ten percent of the workday based on the orthopedic examiner's opinion that the plaintiff would need "regular comfort breaks," but did not indicate the length of those breaks. 576 F. App'x 43, 46 (2d Cir. 2014). The Second Circuit found that determination was not supported by the record, and that a specific RFC assessment "must be based on evidence in the record, not on an 'ALJ's own surmise.' " Id. Although the Commissioner contends in his response that a specific medical opinion is not required when the ALJ formulates the RFC, and that no medical professional opined that Plaintiff required time off-task, what is problematic in this instance is the lack of explanation as to how the ALJ arrived at this ten percent off-task limitation. In other words, while the ALJ is not required to adopt any one specific medical opinion, he is required to explain how he arrived at a specific functional limitation, and how that limitation is supported by evidence in the record. See, e.g., Elder v. Comm'r of Soc. Sec., No. 18-CV-1196, 2019 WL 6320355, at *5 (W.D.N.Y. Nov. 26, 2019) ("Without some explanation from the ALJ as to the tether between the RFC and the non-stale medical opinions or statements from the claimant, the RFC is based upon the ALJ's lay analysis of the claimant's limitations, which is not permitted and requires remand." (alterations, quotations, and citations omitted)); see also Joshua K. v. Comm'r of Soc. Sec., No. 19-cv-66-FPG, 2021 WL 235886, at *2-3 (W.D.N.Y. Jan. 25, 2021) (remand required where the ALJ did not "point to any evidence in the record suggesting why Plaintiff would be off task for this specific percentage of time," and explaining that "[s]pecific RFC assessments, like percentage of time off-task, must be based on evidence in the record," and further explaining that generalizations pointed to by the Commissioner, including that the plaintiff had normal attention and concentration examination, engaged in many activities, and attended college, "were [not] included in the ALJ's decision as support for the specific off task assessment nor do they translate into a finding that Plaintiff would be off task five percent of the day"). Here, it is unclear to the Court how the ALJ settled on a ten percent off-task limitation, which is also problematic given that at the administrative hearing, when the ALJ presented three hypotheticals to the VE, each of which contained a different off-task limitation (five percent, ten percent, and more than ten percent), the VE explained that an off-task limitation of more than ten percent would render Plaintiff unable to perform any jobs. (See Dkt. 12 at 78-81); see also Elder, 2019 WL 6320355, at *5-6 ("At best . . . the ALJ's conclusion comes from whole cloth. At worst, the conclusion responds to the vocational expert's testimony that an off-task behavior restriction of six minutes per hour—that is, one more minute of off-task behavior per hour—would be work preclusive."). On remand, should the ALJ again assess an off-task limitation, he should identify evidence in the record supporting his conclusion in that respect.
B. Plaintiff's Remaining Arguments
As set forth above, Plaintiff has identified additional reasons why he contends the ALJ's decision was not supported by substantial evidence. However, because the Court has already determined, for the reasons previously discussed, that remand of this matter for further administrative proceedings is necessary, the Court declines to reach these issues. See, e.g., Bell v. Colvin, No. 5:15-CV-01160 (LEK), 2016 WL 7017395, at *10 (N.D.N.Y. Dec. 1, 2016) (declining to reach arguments "devoted to the question whether substantial evidence supports various determinations made by [the] ALJ" where the court had already determined remand was warranted); Morales v. Colvin, No. 13cv06844 (LGS) (DF), 2015 WL 13774790, at *23 (S.D.N.Y. Feb. 10, 2015) (the court need not reach additional arguments regarding the ALJ's factual determinations "given that the ALJ's analysis may change on these points upon remand"), adopted, 2015 WL 2137776 (S.D.N.Y. May 4, 2015).
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (Dkt. 20) is granted to the extent that the matter is remanded for further administrative proceedings, and the Commissioner's motion for judgment on the pleadings (Dkt. 21) is denied.
SO ORDERED.