Opinion
1:21-cv-02123-PAE-GRJ
05-13-2022
STEPHANIE M., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES, UNITED STATES MAGISTRATE JUDGE
In March of 2016, Plaintiff Stephanie M. applied for Disability Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the application. Plaintiff, represented by Harold Skovronsky, Esq., commenced this action seeking judicial review of the Commissioner's denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
Plaintiff's name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
This case was referred to the undersigned for a report and recommendation on March 24, 2022. Presently pending are the parties' Motions for Judgment on the Pleadings under Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket No. 20, 22). For the following reasons, it is recommended that Plaintiff's motion should be granted, the Commissioner's motion should be denied, and this matter should be remanded for further proceedings.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on March 28, 2016, alleging disability beginning February 23, 2016. (T at 103-10). Plaintiff's application was denied initially and on reconsideration. She requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on April 23, 2018, before ALJ Laura Michalec Olszewski. (T at 35-72). On August 27, 2018, the ALJ issued a decision denying the application for benefits. (T at 11226). The Appeals Council granted review on December 5, 2019, and remanded the matter for further proceedings. (T at 128-30). A second administrative hearing was held on March 30, 2020. (T at 73). Plaintiff appeared with her attorney and testified. (T at 82-95). The ALJ also received testimony from Warren Maxim, a vocational expert. (T at 97-99).
Citations to “T” refer to the administrative record transcript at Docket No. 17.
B. ALJ's Decision
On April 8, 2020, ALJ Olszewski issued a second decision denying the application for benefits. (T at 12-27). The ALJ found that Plaintiff had not engaged in substantial gainful activity since February 23, 2016 (the alleged onset date) and met the insured status requirements of the Social Security Act through December 31, 2021 (the date last insured). (T at 17). The ALJ concluded that Plaintiff's degenerative disc disease of the lumbar spine was a severe impairment as defined under the Act. (T at 17). However, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equals one of the listed impairments in 20 CFR Part 403, Subpart P, Appendix 1. (T at 18).
At step four of the sequential analysis the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform light work, as defined in 20 CFR 404.1567 (b) and 416.967 (b), with the following limitations: she can lift/carry 20 pounds occasionally and 10 pounds frequently; sit for 6 hours in an 8-hour workday; stand or walk for 6 hours in an 8-hour workday; occasionally climb ramps and stairs, but never climb ladders and scaffolds; occasionally balance and stoop, but never kneel, crouch, and crawl; and frequently push and pull within the limits of light work. (T at 18).
The ALJ concluded that Plaintiff could perform her past relevant work as a Station Agent. (T at 22). As such, the ALJ found that Plaintiff had not been under a disability, as defined under the Social Security Act, and was not entitled to benefits for the period between February 23, 2016 (the alleged onset date) and April 8, 2020 (the date of the ALJ's decision). (T at 23).
On December 8, 2020, the Appeals Council denied Plaintiff's request for review, making the ALJ's second decision the Commissioner's final decision. (T at 1-6).
C. Procedural History
Plaintiff commenced this action, by and through her counsel, by filing a Complaint on February 8, 2021. (Docket No. 1). Plaintiff filed a motion for judgment on the pleadings, supported by a memorandum of law, on November 29, 2021. (Docket No. 20, 21). The Commissioner interposed a cross-motion for judgment on the pleadings, supported by a memorandum of law, on January 28, 2022. (Docket No. 22, 23). The matter was assigned to the undersigned for a report and recommendation on March 24, 2022.
II. APPLICABLE LAW
A. Standard of Review
“It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). The court's review is limited to “determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings, which are considered conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted).
“When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or when the ALJ's rationale is unclear, remand “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. Five-Step Sequential Evaluation Process
Under the Social Security Act, a claimant is disabled if he or she lacks the ability “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 eligibility for disability benefits is evaluated pursuant to a five-step sequential analysis:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform.See Rolon v. Commissioner of Soc. Sec., 994 F.Supp.2d 496, 503 (S.D.N.Y. 2014); see also 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
The claimant bears the burden of proof as to the first four steps; the burden shifts to the Commissioner at step five. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner determines whether claimant can perform work that exists in significant numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).
III. DISCUSSION
Plaintiff's primary argument is that the ALJ did not adequately develop the record. Plaintiff also contends that the ALJ failed to properly address her limitation with regard to reaching in the step four (past relevant work) analysis. The Court will discuss both arguments in turn.
A. Duty to Develop the Record
Social Security proceedings are non-adversarial and the ALJ is obliged “to investigate the facts and develop the arguments both for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 111, 147 L.Ed.2d 80, 120 S.Ct. 2080 (2000) (citation omitted). This obligation applies even if the claimant is represented by counsel. See, e.g., Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)(citing Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)). The duty to develop the record has been described as a “bedrock principle of Social Security law.” Batista v. Barnhart, 326 F.Supp.2d 345, 353 (E.D.N.Y.2004)(citing Brown v. Apfel, 174 F.3d 59 (2d Cir.1999)).
“Proper application” of the duty “ensures that the claimant's record is comprehensive, including all relevant treating physician diagnoses and opinions, and requires the ALJ to explain clearly how these opinions relate to the final determination. In this circuit, the rule is robust.” Santiago v. Comm'r of Soc. Sec., No. 13-CV-3951(LTS)(SN), 2014 U.S. Dist. LEXIS 96984, 2014 WL 3819304, at *16 (S.D.N.Y. Aug. 4, 2014) (citing Schaal v. Apfel, 134 F.3d 496, 503-05 (2d Cir. 1998)).
However, the ALJ's “obligation to assemble the claimant's medical records, although robust, ‘is not unlimited.''' Clarke v. Comm'r of Soc. Sec., No. 19-CV-7213 (BCM), 2021 WL 2481909, at *13 (S.D.N.Y. June 16, 2021)(quoting Myers ex rel. C.N. v. Astrue, 993 F.Supp.2d 156, 163 (N.D.N.Y. 2012)).
In the present case, the Court concludes that the ALJ satisfied her duty to develop the administrative record. The ALJ reviewed and extensively discussed a well-developed record, which included clinical examinations, treatment notes, and imaging studies. (T at 18-22). The ALJ reasonably characterized Plaintiff's treatment as intermittent, conservative, and generally effective at managing her pain and symptoms. (T at 19-22). The treatment involved anti-inflammatory medications and intramuscular injections, and (notably) no treatment for lower back pain (other than ibuprofen) between March of 2018 and April of 2020. (T at 19, 78-79, 423517).
In addition, the record included, and the ALJ relied on, Dr. Julia Kaci's consultative orthopedic examination. (T at 21-22, 400-402). In June of 2016, Dr. Kaci described Plaintiff as having full flexion, extension, and rotary movements of the cervical spine and full range of motion with no muscle atrophy in the upper and lower extremities. (T at 401-402). She diagnosed chronic low back pain and radiculopathy and opined that Plaintiff had moderate limitations as to bending, lifting, carrying, pushing, and pulling, along with mild limitation as to squatting. (T at 402).
The ALJ's decision was also supported by the assessment of Dr. J. DeBorgia, a non-examining State Agency review consultant. (T at 22, 404411). In October of 2017, Dr. DeBorgia reviewed the record and opined that Plaintiff could occasionally lift 20 pounds, frequently lift 10 pounds, stand or walk for 6 hours in an 8-hour workday, sit for 6 hours in an 8-hour workday, push and pull without limitation, and occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. (T at 405-406). Dr. DeBorgia assessed no manipulative limitations. (T at 407).
“‘[S]tate agency physicians are qualified as experts in the evaluation of medical issues in disability claims,' and as such, ‘their opinions may constitute substantial evidence if they are consistent with the record as a whole.'” Distefano v. Berryhill, 363 F.Supp.3d 453, 474 (S.D.N.Y. 2019)(quoting Leach ex rel. Murray v. Barnhart, 02 Civ. 3561, 2004 U.S. Dist. LEXIS 668, at *26 (S.D.N.Y. Jan. 22, 2004)); see also Ortiz v. Comm'r of Soc. Sec., 309 F.Supp.3d 189, 205 (S.D.N.Y. 2018)(“Moreover, the opinion of a non-examining medical expert ... may be considered substantial evidence if consistent with the record as a whole.”).
Plaintiff argues that the ALJ should have further developed the record by ordering another consultative examination, requesting clarification from Dr. Kaci as to her definition of “moderate” limitation, and/or seeking additional information from treating providers.
This Court disagrees. The ALJ reasonably found Dr. Kaci's assessment supported by the record evidence, including Dr. DeBorgia's opinion, the intermittent and conservative course of treatment, and the clinical examination notes and imaging studies. Plaintiff has not articulated a sufficient justification for obtaining another consultative examination, particularly given the admitted lack of treatment for two (2) years prior to the second administrative hearing.
“A consultative examination is used to ‘try to resolve an inconsistency in the evidence, or when the evidence as a whole is insufficient to allow [the ALJ] to make a determination or decision' on the claim.” Tankisi v. Comm'r of Soc. Sec., 521 Fed.Appx. 29, 32 (2d Cir. 2013)(quoting 20 C.F.R. §§ 404.1519a(b), 416.919a(b)). The record is insufficient and needs to be further developed if “it does not contain all of the information [ ] need[ed] to make [a] determination or decision.” 20 C.F.R. § 404.1520b(b). “[A]n ALJ is not required to order a consultative examination if the facts do not warrant or suggest the need for it.” Tankisi, 521 Fed.Appx. at 32; see also Villalobo v. Saul, No. 19-CIV-11560CSJCM, 2021 WL 830034, at *19 (S.D.N.Y. Feb. 9, 2021).
Moreover, “[c]onsultative examinations do not have expiration dates,” Villalobo, 2021 WL 830034, at *19, and an additional examination is not warranted without evidence that the claimant's condition deteriorated during the period at issue. See Rosa v. Comm'r of Soc. Sec., No. 17-CIV-3344-NSR-JCM, 2018 WL 5621778, at *10 (S.D.N.Y. Aug. 13, 2018).
Here, Plaintiff points to no evidence of deterioration and, indeed, there are notable admitted gaps in treatment. The ALJ thus did not abuse her discretion by concluding that it was not necessary to obtain an updated consultative examination.
Further, the ALJ was not obliged to seek clarification from Dr. Kaci regarding her use of the term “moderate” to describe Plaintiff's limitations as to bending, lifting, carrying, pushing, and pulling. Moderate limitations have been found to be consistent with the capacity to perform light work. See, e.g., Lee W. v. Comm'r of Soc. Sec., No. 1:20-CV-008-DB, 2021 WL 1600294, at *5 (W.D.N.Y. Apr. 23, 2021)(collecting cases); Vargas v. Astrue, No. 10 CIV. 6306 PKC, 2011 WL 2946371, at *12 (S.D.N.Y. July 20, 2011).
Plaintiff also argues that the ALJ's failure to obtain a new consultative examination, re-contact Dr. Kaci, and/or contact the treating sources violated the Appeals Council's remand order. In its remand order, the Appeal Council directed the ALJ to “[o]btain additional evidence concerning [Plaintiff's] impairments to complete the administrative record ....” (T at 129). However, there were no additional records to obtain as Plaintiff did not receive treatment between the first and second administrative hearings. (T at 79). Plaintiff's counsel acknowledged at the second hearing that the record was “complete.” (T at 79).
The Appeals Council did state that “additional evidence may include, if warranted and available, a consultative examination and medical source opinions about what [Plaintiff] can still do despite the impairments” (T at 129). Notably, this statement was advisory, and not mandatory. In other words, this portion of the Appeals Council's order gave the ALJ discretion to obtain another consultative examination and/or additional medical source opinions in the event she believed it was necessary to further develop the record. See James C. v. Comm'r of Soc. Sec., No. 5:19-CV-1206 (TWD), 2020 WL 6445907, at *7 (N.D.N.Y. Nov. 3, 2020) ([T]he Appeals Council's remand order qualifies its directions to the ALJ through the use of terms such as ‘[i]f necessary,' and ‘if warranted.' [ ] Therefore, the bulk of the Appeals Council's directions merely call for [the ALJ] to exercise her discretion regarding evaluation of the opinion and other evidence and the development of the record, so long as she complied with the applicable regulations.”).
For the reasons discussed above, this Court concludes that the ALJ did not abuse the discretion afforded her by the Appeals Council regarding her assessment of whether the record needed further development.
B. Step Four Analysis
A claimant is not disabled if she can perform her past relevant work, either as she actually performed it, or as it is generally performed in the national economy. See Jock v. Harris, 651 F.2d 133, 135 (2d Cir. 1981) (noting that “the claimant has the burden to show an inability to return to her previous specific job and an inability to perform her past relevant work generally”).
“Determination of the claimant's ability to perform past relevant work requires a careful appraisal of (1) the individual's statements as to which past work requirements can no longer be met and the reason(s) for his or her inability to meet those requirements; (2) medical evidence establishing how the impairment limits ability to meet the physical and mental requirements of the work; and (3) in some cases, supplementary or corroborative information from other sources such as employers, the Dictionary of Occupational Titles, etc., on the requirements of the work as generally performed in the economy.” Speruggia v. Astrue, No. 05 CV 3532, 2008 WL 818004, at *12-*13 (E.D.N.Y. Mar. 26, 2008).
In her first decision, the ALJ found that Plaintiff was limited to frequent reaching, but also concluded that she could perform her past relevant work as a ticket seller. (T at 119, 122). As the Appeals Council recognized, this conclusion was at odds with the testimony of the vocational expert, who explained that Plaintiff's past relevant work required constant reaching. (T at 69, 128). Further, as the Appeals Council also noted, this conflicts with the Dictionary of Occupational Titles (“DOT”)description of the position, which likewise indicates that it requires constant reaching. (T at 128). As such, the Appeals Council identified a conflict between the vocational expert's testimony, the ALJ's step four determination, and the DOT. (T at 128). The Appeals Council specifically directed the ALJ to address this issue and resolve this conflict on remand. (T at 128).
The DOT is published by the Department of Labor and provides detailed descriptions of the requirements for a variety of jobs. The Social Security Administration has taken administrative notice of the DOT. See 20 CFR § 416.966 (d)(1).
If there is (or appears to be) a conflict between the DOT and the vocational expert's testimony, the DOT is “so valued” that the ALJ is obliged to obtain a “reasonable explanation” for the conflict. Brault v. SSA, 683 F.3d 443, 446 (2d Cir. 2012)(citing SSR 004-p); see also Lockwood v. Comm'r of SSA, 914 F.3d 87, 91 (2d Cir. 2019).
This Court concludes that the ALJ failed to adequately address this issue. Here's why.
First, although the ALJ found Plaintiff limited to frequent reaching in her first decision (T at 119), the second decision contains no limitation as to reaching. (T at 18). The ALJ provided no explanation for this change in her assessment of Plaintiff's RFC.
Second, the vocational expert testified at the second administrative hearing that an individual limited to frequent reaching could perform Plaintiff's past relevant work. (T at 98). This testimony conflicts with the testimony of the vocational expert from the prior administrative hearing, who testified that the position requires constant reaching (T at 69), and with the DOT description, which also provides that constant reaching is required. See DOT 211.467-030. The ALJ gave no indication that she recognized this problem and she failed to undertake any effort to satisfy her duty to resolve the conflict.
The Commissioner suggests the errors outlined above were harmless because there is some suggestion in the record that a claimant limited to frequent reaching might be able to perform Plaintiff's past relevant work as she actually performed it. In a questionnaire, Plaintiff stated that she was required to perform reaching tasks for four (4) hours per day as part of her past relevant work. (T at 324). The Commissioner argues that could be considered “frequent” (as opposed to constant) reaching.
The Court is not persuaded by the Commissioner's rationalization on an issue material to the disability determination. The ALJ provided no justification or explanation for the decision to remove the reaching limitation from the RFC determination. The ALJ did not recognize, let alone resolve, the conflict between the vocational expert's testimony and the DOT. The Court, therefore, declines to accept the suggestion that Plaintiff's cursory questionnaire response regarding the reaching requirements of her past relevant work is sufficient to sustain the ALJ's decision on grounds not articulated by the ALJ herself. The fact that the ALJ was specifically directed by the Appeals Council to correct her initial error and provide a proper step four analysis only makes the ALJ's error more pronounced.
Post hoc rationalizations are generally insufficient to remedy gaps in the ALJ's analysis. See Newbury v. Astrue, 321 Fed.Appx. 16, 18 (2d Cir. 2009) (“A reviewing court ‘may not accept appellate counsel's post hoc rationalizations for agency action.'”)(quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)); see also Rosa v. Comm'r of Soc. Sec., No. 17 Civ. 3344, 2018 U.S. Dist. LEXIS 137494, at *44 (S.D.N.Y. Aug. 13, 2018)(“Post hoc justifications raised by the Commissioner in her memorandum of law do not cure defects in the ALJ's decision ...”).
This Court, therefore, recommends a remand for a proper analysis of whether a reaching limitation should be included in the RFC and, if so, whether such limitation would preclude performance of the past relevant work, either generally or as actually performed by Plaintiff.
C. Remand
“Sentence four of Section 405 (g) provides district courts with the authority to affirm, reverse, or modify a decision of the Commissioner ‘with or without remanding the case for a rehearing.'” Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (quoting 42 U.S.C. § 405 (g)). Remand for further administrative proceedings is the appropriate remedy “[w]here there are gaps in the administrative record or the ALJ has applied an improper legal standard.” Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999); see also Rhone v. Colvin, No. 13-CV-5766 (CM)(RLE), 2014 U.S. Dist. LEXIS 180514, at *28 (S.D.N.Y. Nov. 6, 2014).
Given the deficiencies in the ALJ's step four analysis, it is recommended that this case be remanded for further proceedings. In addition, it is recommended that assignment to a different ALJ be ordered on remand. “[A] fresh look by another ALJ would be beneficial,” given that this particular ALJ already has undertaken two unsuccessful attempts to conduct a proper analysis. Collado v. Astrue, No. 05-CV-3337 KMK/LMS, 2009 WL 2778664, at *3 (S.D.N.Y. Aug. 31, 2009)(citations omitted); see also McClaney v. Astrue, No. 10-CV-5421 JG JO, 2012 WL 3777413, at *20 (E.D.N.Y. Aug. 10, 2012)(collecting cases).
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 20) should be GRANTED; the Commissioner's Motion for Judgment on the Pleadings (Docket No. 22) should be DENIED; and this case should be remanded for further proceedings under sentence four of section 405 (g) of the Social Security Act.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).