Opinion
22 Civ. 3009 (NSR) (AEK)
08-11-2023
ADAM WHETSTONE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE NELSON S. ROMAN, U.S.D.J.
Plaintiff Adam Whetstone brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security (the “Commissioner”), which denied his application for supplemental security income (“SSI”). ECF No. 1. Currently pending before the Court are Plaintiff's motion, and the Commissioner's crossmotion, for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ECF Nos. 21, 25. For the reasons that follow, I respectfully recommend that Plaintiff's motion (ECF No. 21) be DENIED, that the Commissioner's motion (ECF No. 25) be GRANTED, and that judgment be entered in favor of the Commissioner.
BACKGROUND
I. Procedural Background
On March 25, 2016, Plaintiff filed an application for SSI, alleging January 1, 2014, as the onset date of his disability. AR 75.In his initial filing, Plaintiff claimed he was disabled due to depression, anxiety, bipolar disorder, back pain, leg pain, and asthma. AR 66-67. Following the denial of Plaintiff's claim by the Social Security Administration (the “SSA”), Plaintiff requested a hearing before an administrative law judge (“ALJ”). AR 114. An administrative hearing was held on February 5, 2018, before ALJ Marc Mates. AR 746-69. On June 13, 2018, ALJ Mates issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act (the “Act”) since March 25, 2016, the date on which he filed his application for SSI.AR 76-94. Plaintiff subsequently filed a request for review of that decision with the SSA's Appeals Council, AR 175-78, and on August 8, 2019, the Appeals Council vacated ALJ Mates's decision and remanded the case for further administrative proceedings, AR 95-100.
Citations to “AR” refer to the certified copy of the administrative record filed by the Commissioner. ECF Nos. 11 (AR 1-745), 16 (AR 746-69).
Even though Plaintiff alleged January 1, 2014 as the onset date of his disability, SSI benefits are not payable “for any period that precedes the first month following the date on which an application is filed[.]” 20 C.F.R. § 416.501. Accordingly, the scope of the decisions of the ALJs in this matter focused on the date Plaintiff applied for benefits.
On remand, Plaintiff appeared for a hearing before ALJ Miriam Shire, AR 30-65, and on January 6, 2021, ALJ Shire issued a decision finding that Plaintiff was not disabled since March 25, 2016, the date on which he filed his application for SSI. AR 8-23. Plaintiff filed a request for review of this decision with the Appeals Council, and on February 7, 2022, the Appeals Council denied the request. AR 1-7. That made ALJ Shire's decision the final decision of the Commissioner. The instant lawsuit, seeking judicial review of the ALJ's decision, was filed on April 12, 2022. ECF No. 1.
II. Testimonial, Medical, and Vocational Evidence
Because Plaintiff is only challenging aspects of the ALJ's decision concerning his mental impairments, the Commissioner has provided a summary of the testimonial, medical, and vocational evidence contained in the administrative record related only to those impairments. See ECF No. 26 (“Def.'s Mem.”) at 2-11. Plaintiff also has provided a brief summary of the testimonial, medical, and vocational evidence, focused on his mental impairments. See ECF No. 22 (“Pl.'s Mem.”) at 6-9. Based on an independent and thorough examination of the record, the Court finds that the parties' summaries of the evidence concerning Plaintiff's mental impairments are largely comprehensive and accurate. Accordingly, the Court adopts the summaries and discusses the evidence in the record in more detail to the extent necessary to a determination of the issues raised in this case. See, e.g., Banks v. Comm'r of Soc. Sec., No. 19-cv-929 (AJN) (SDA), 2020 WL 2768800, at *2 (S.D.N.Y. Jan. 16, 2020), adopted by 2020 WL 2765686 (S.D.N.Y. May 27, 2020).
APPLICABLE LEGAL PRINCIPLES
I. Standard of Review
The scope of review in an appeal from a social security disability determination involves two levels of inquiry. First, the court must review the Commissioner's decision to assess whether the Commissioner applied the correct legal standards when determining that the plaintiff was not disabled. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). “‘Failure to apply the correct legal standards is grounds for reversal.'” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
Second, the court must decide whether the Commissioner's decision was supported by substantial evidence. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 106 (quotation marks omitted). The “substantial evidence” standard of review is “very deferential,” and it is not the function of the reviewing court “to determine de novo whether a plaintiff is disabled.” Schillo v. Kijakazi, 31 F.4th 64, 74 (2d Cir. 2022) (quotation marks omitted). To determine whether a decision by the Commissioner is supported by substantial evidence, courts must “examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Id. (quotation marks omitted). “The substantial evidence standard means once an ALJ finds facts, [courts] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Id. (quotation marks omitted) (emphasis in original). “‘If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld.'” Id. (quoting McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014)).
II. Determining Disability
The Act defines “disability” as the 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). An individual is disabled under the Act if he or she suffers from an impairment which is “of such severity that he [or she] is not only unable to do his [or her] previous work but cannot . . . engage in any other kind of substantial gainful work which exists in the national economy[.]” 42 U.S.C. § 1382c(a)(3)(B). “‘[W]orkwhich exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” Id.
Regulations issued pursuant to the Act set forth a five-step process that the Commissioner must follow in determining whether a particular claimant is disabled. See 20 C.F.R. § 416.920(a)(4). The Commissioner first considers whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. § 416.920(a)(4)(i), (b). If the claimant is engaged in substantial gainful activity, then the Commissioner will find that the claimant is not disabled; if the claimant is not engaged in substantial gainful activity, the Commissioner proceeds to the second step, at which the Commissioner considers the medical severity of the claimant's impairments. 20 C.F.R. § 416.920(a)(4)(ii). A severe impairment is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 416.920(c). If the claimant suffers from any severe impairment, the Commissioner at step three must decide if the impairment meets or equals a listed impairment; listed impairments are presumed severe enough to render an individual disabled, and the criteria for each listing are found in Appendix 1 to Part 404, Subpart P of the SSA regulations. 20 C.F.R § 416.920(a)(4)(iii), (d).
If the claimant's impairments do not satisfy the criteria of a listed impairment at step three, the Commissioner must then determine the claimant's residual functional capacity (“RFC”). 20 C.F.R. § 416.920(e). A claimant's RFC represents “the most [he or she] can still do despite [his or her] limitations.” 20 C.F.R. § 416.945(a)(1). After determining the claimant's RFC, the Commissioner proceeds to the fourth step to determine whether the claimant can perform his or her past relevant work. 20 C.F.R. § 416.920(a)(4)(iv), (e)-(f). If it is found that the claimant cannot perform his or her past relevant work, the Commissioner proceeds to step five to consider the claimant's RFC, age, education, and work experience to determine whether he or she can adjust to other work. 20 C.F.R. § 416.920(a)(4)(v), (g). To support a finding that the claimant is disabled, there must be no other work existing in significant numbers in the national economy that the claimant, in light of his or her RFC and vocational factors, is capable of performing. 20 C.F.R. § 416.960(c).
The claimant bears the burden of proof on the first four steps of this analysis. DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998). If the ALJ concludes at an early step of the analysis that the claimant is not disabled, he or she need not proceed with the remaining steps. Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000). If the fifth step is necessary, the burden shifts to the Commissioner to show that the claimant is capable of performing other work. DeChirico, 134 F.3d at 1180.
DISCUSSION
Plaintiff seeks to reverse the Commissioner's decision and have the matter remanded to the SSA for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Pl.'s Mem. at 17. He contends that (1) the ALJ improperly evaluated the medical opinion evidence, erring in her application of the treating physician rule by not giving controlling weight to the opinion of Plaintiff's treating physician and not providing good reasons for the weight she gave to the opinion; and (2) the ALJ's RFC determination is not supported by substantial evidence because the ALJ failed to consider the side effects of Plaintiff's medications. Pl.'s Mem. at 12-16. The Commissioner maintains that her final decision should be affirmed because the ALJ's decision is based upon an application of the correct legal standards and is supported by substantial evidence. Def.'s Mem. at 12-25.
As discussed below, the Court finds that the ALJ properly evaluated the medical opinion evidence and did not err in declining to give controlling weight to the opinion of Plaintiff's treating physician. Moreover, although the ALJ procedurally erred in failing to explicitly address all of the Burgess factors, see Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008), she did not violate the substance of the treating physician rule, because a searching review of the record has assured the Court that there are good reasons in the record for the ALJ's decision to assign less-than-controlling weight to the opinion, see Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019). The Court also finds that the ALJ did not err in failing to explicitly take into account the side effects of Plaintiff's medications in connection with her RFC determination. Therefore, the Court respectfully recommends that Plaintiff's motion be denied, that the Commissioner's motion be granted, and that judgment be entered in favor of the Commissioner.
I. The ALJ's Decision
ALJ Shire applied the five-step sequential analysis described above and issued a decision finding that Plaintiff was not disabled since March 25, 2016, the date on which he applied for SSI. AR 11-23. First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since March 25, 2016. AR 14. Second, the ALJ determined that Plaintiff had the severe impairments of “degenerative disc disease, mood disorder, history of marijuana use, and asthma.” Id. Third, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 14-15.
According to the ALJ, Plaintiff retained the RFC to perform light work, as defined in 20 C.F.R. § 416.967(b),but only insofar as the work was consistent with the following restrictions:
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 416.967(b).
no temperature extremes, no excessive dust, no excessive humidity, concentrated fumes, smoke or irritants. No climbing ladders, scaffolding, can only occasionally perform other postural maneuvers. He can perform simple routine tasks outside of the fast-paced environment. He can only occasionally tolerate social interaction with coworkers, supervisors, and the general public and could only occasionally tolerate changes in the work setting. He would need a sit/stand option every 30 minutes taking one minute to change position.AR 15-16.
In determining Plaintiff's RFC, the ALJ evaluated Plaintiff's symptoms by applying the two-step framework described in 20 C.F.R. § 416.929 and SSR 16-3p, concluding first that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” but second that his “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record ....” AR 16-17. The ALJ provided a detailed summary of the evidence in the record, including Plaintiff's statements about his symptoms and activities of daily living, as well as the medical treatment records. AR 16-22.
The ALJ specified that the first step in this process is to determine “whether there is an underlying medically determinable physical or mental impairment(s)i.e., an impairment(s) that can be shown by medically acceptable clinical or laboratory diagnostic techniques-that could reasonably be expected to produce the claimant's pain or other symptoms.” AR 16. Second, “once an underlying physical or mental impairment(s) that could reasonably be expected to produce the claimant's pain or other symptoms has been shown, [the ALJ] must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's work-related activities,” and “whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the [ALJ] must consider other evidence in the record to determine if the claimant's symptoms limit the ability to do work-related activities.” Id.
In the decision, ALJ Shire noted Plaintiff's hearing testimony that he lived alone; that he could do the cooking, cleaning, and laundry and went shopping with his father; and “that he can attend most of his appointments in a timely fashion, but that on occasion he did not make them, but always called and rescheduled.” AR 16, 20; see AR 35, 46, 55. She also highlighted testimony that Plaintiff “attended and completed a computer science class, and did all the required work, except he did not obtain the final certificate.” AR 20; see AR 49-50.
ALJ Shire also considered the opinion evidence in accordance with 20 C.F.R. § 416.927. See AR 16. Of particular relevance to the issues raised in the parties' cross-motions here was the ALJ's consideration of opinion evidence from mental health care providers. The ALJ gave “some weight” to the opinion of psychological consultative examiner John Nikkah, Ph.D. AR 20. More specifically, the ALJ gave “little weight” to Dr. Nikkah's assessment of moderate limitation in maintaining a regular schedule because Plaintiff “has indicated that he can attend regular appointments, and he took a computer science class.” AR 20-21. But ALJ Shire gave the rest of Dr. Nikkah's opinion “great weight” because it was “generally consistent with the rest of the medical record and supported by the examination findings.” AR 21.
In contrast, ALJ Shire gave “little weight” to the opinions of treating sources NPP (Nurse Practitioner-Psychiatric) Patrick Tigenoah and psychiatrist Dr. Karamchand Rameshwar, “who endorsed marked limitations.” Id. The ALJ found that their opinions were “not adequately supported or consistent with the weight of the evidence of record as a whole, or the examination findings from these providers or the consultative examiner.” Id. Rather, ALJ Shire explained that “the records show that generally the claimant is able to keep his appointments, only sporadically takes medications, and is still able to maintain activities of daily living.” Id.
At the fourth step, the ALJ found that Plaintiff had no past relevant work. AR 22.
At the fifth step, the ALJ noted that Plaintiff, who was 31 years old on the date that he filed his application for SSI, was a “younger individual age 18-49”; that he had at least a high school education; and that transferability of job skills was not an issue because Plaintiff did not have past relevant work. Id. ALJ Shire explained that if Plaintiff had the RFC to perform the full range of light work, then a finding of “not disabled” would be directed by Medical-Vocational Rule 202.20. AR 23. But the ALJ concluded that Plaintiff's “ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations.” Id. Thus, ALJ Shire received testimony from a vocational expert at the hearing “[t]o determine the extent to which these limitations erode the unskilled light occupational base,” and “asked the vocational expert whether jobs existed in the national economy for an individual with [Plaintiff's] age, education, work experience, and [RFC].” Id. The vocational expert determined and testified that Plaintiff could perform the representative unskilled light occupations of (1) collator operator (46,000 jobs nationally); (2) router (35,000 jobs nationally); and (3) ticket seller (15,000 jobs nationally). Id. Based on the vocational expert's testimony, the ALJ concluded that considering Plaintiff's age, education, work experience, and RFC, Plaintiff was “capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” Id. For all of these reasons, the ALJ determined that Plaintiff had not been disabled since March 25, 2016, the date on which he applied for SSI. Id.
II. The ALJ's Evaluation of the Medical Opinion Evidence
Plaintiff contends that the ALJ wrongly evaluated the medical opinion evidence and failed to properly apply the treating physician rule. Pl.'s Mem. at 12-15. According to Plaintiff, ALJ Shire incorrectly gave “little weight” to the opinion of his treating psychiatrist Dr. Rameshwar without giving good reasons, and failed to explicitly address all of the Burgess factors. Id. at 13-15. The Commissioner counters that ALJ Shire properly applied the treating physician rule and appropriately weighed the opinion of Dr. Rameshwar. Def.'s Mem. at 18-23.
A. The Treating Physician Rule
As a general matter, an ALJ is directed to consider “every medical opinion” in the record, regardless of its source. 20 C.F.R. § 416.927(c). Yet not every medical opinion is assigned the same weight. “Under the treating physician rule, an ALJ must give ‘controlling weight' to the opinion of a claimant's treating physician, so long as it is ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record.'” Castorina v. Kijakazi, No. 21-100-cv, 2023 WL 4229250, at *1 (2d Cir. June 28, 2023) (summary order) (quoting Burgess, 537 F.3d at 128 (cleaned up)).“If the treating physician's opinion is not well-supported or is contradicted by substantial evidence, then the ALJ must articulate good reasons to rebut the presumption of controlling deference conferred on the treating physician's opinion.” Id. (quoting Colgan v. Kijakazi, 22 F.4th 353, 360 (2d Cir. 2022)) (quotation marks omitted). “The ALJ must then determine how much weight, if any, to give the treating physician's opinion.” Id. (citing Estrella 925 F.3d at 95-96). “In doing so, [the ALJ] must explicitly consider the following, nonexclusive Burgess factors: (1) the frequency, length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Estrella, 925 F.3d at 95-96 (cleaned up); See 20 C.F.R. § 416.927(c)(2)(i)-(ii), (c)(3)-(c)(6).
The social security regulations were amended for claims filed after March 27, 2017. Because Plaintiff filed his application for SSI on March 25, 2016, the earlier version of the “treating physician rule” applies in this matter.
The ALJ need not provide a “slavish recitation of each and every factor where the ALJ's reasoning and adherence to the regulation are clear.” Atwater v. Astrue, 512 Fed.Appx. 67, 70 (2d Cir. 2013) (summary order); see also Winder v. Berryhill, 369 F.Supp.3d 450, 458 (E.D.N.Y. 2019) (“An ALJ does not have to explicitly walk through these factors, so long as the Court can conclude that the ALJ applied the substance of the treating physician rule and provided good reasons for the weight [he or] she gives to the treating source's opinion.”) (cleaned up); Martinez-Paulino v. Astrue, No. 11-cv-5485 (RPP), 2012 WL 3564140, at *16 (S.D.N.Y. Aug. 20, 2012) (“It is not necessary that the ALJ recite each factor explicitly, only that the decision reflects application of the substance of the rule.”). Nonetheless, the Commissioner must “always give good reasons in [his or her] notice of determination or decision for the weight [he or she] give[s] [a claimant's] treating source's medical opinion,” 20 C.F.R. § 416.927(c)(2); see Colgan, 22 F.4th at 360, and must “comprehensively set forth reasons for the weight” ultimately assigned to the opinion of the treating source, Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004). “Failure to provide ‘good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); see Burgess, 537 F.3d at 129-30.
“An ALJ's failure to explicitly apply the Burgess factors when assigning weight is a procedural error. If, however, a searching review of the record assures [the court] that the substance of the treating physician rule was not traversed, [the court] will affirm.” Castorina, 2023 WL 4229250, at *1 (cleaned up) (quoting Estrella, 925 F.3d at 96).
B. The ALJ's Application of the Treating Physician Rule
Plaintiff's treating psychiatrist Dr. Rameshwar signed off on a questionnaire entitled “Medical Source Statement of Ability to do Work-Related Activities (Mental),” which was filled out by NPP Tigenoah on April 24, 2017. See AR 542-44.In the statement, Dr. Rameshwar and NPP Tigenoah opined that Plaintiff had marked limitations in his abilities to (1) understand, remember, and carry out both simple and complex instructions; and (2) make judgments on both simple and complex work-related decisions. AR 542. They opined that these limitations resulted from the symptoms of Plaintiff's psychiatric diagnosis and the side effects of psychotropic medications, which affected Plaintiff's “judgement, ability to make important work related decisions and memory.” Id. Dr. Rameshwar and NPP Tigenoah also opined that Plaintiff had marked limitations in his abilities to (1) interact appropriately with the public, supervisors, and co-workers; and (2) respond appropriately to usual work situations and changes in a routine work setting, and that these limitations resulted from Plaintiff's irritability, poor social skills, and isolative behavior. AR 543.
On that same date, NPP Tigenoah also filled out a “Psychiatric Medical Report.” See AR 538-41.
In giving “little weight” to the opinion of treating sources NPP Tigenoah and Dr. Rameshwar that Plaintiff suffered from “marked limitations” in his mental functioning, ALJ Shire found that
[t]hese opinions are not adequately supported or consistent with the weight of the evidence of record as a whole, or the examination findings from these providers or the consultative examiner. In contrast, the records show that generally the claimant is able to keep his appointments, only sporadically takes medications, and is still able to maintain activities of daily living.AR 21. According to Plaintiff, ALJ Shire (1) wrongly decided that Dr. Rameshwar's opinion was neither supported by, nor consistent with, the evidence in the record, including his own treatment records; and (2) failed to explicitly consider the factors set forth in the social security regulations in deciding what weight to give Dr. Rameshwar's opinion, in particular, the frequency and length of their treatment relationship. Pl.'s Mem. at 13-15.
To begin, ALJ Shire appropriately declined to give “controlling weight” to Dr. Rameshwar's opinion in light of her finding that it was neither supported by nor consistent with the evidence of record. Castorina, 2023 WL 4229250, at *1. Moreover, as discussed in detail below, the ALJ provided “good reasons to rebut the presumption of controlling deference” that would otherwise be given to Dr. Rameshwar's opinion. Id. Nonetheless, it is evident that ALJ Shire did not explicitly apply all of the Burgess factors in analyzing what weight to assign to Dr. Rameshwar's opinion-instead, she only specifically addressed the extent to which Dr. Rameshwar's opinion was supported by, and consistent with, the evidence in the record as a whole. But when an ALJ procedurally errs by failing to “explicitly apply the Burgess factors,” “the question becomes whether a searching review of the record assures [the court] that the substance of the rule was not traversed-i.e., whether the record otherwise provides good reasons for assigning little weight to [the treating physician's] opinion.” Estrella, 925 F.3d at 96 (cleaned up). Here, having conducted a “searching review” of the administrative record, the Court concludes that the substance of the treating physician rule was not traversed; rather, the record regarding Plaintiff's mental impairments, which was summarized in detail in ALJ Shire's decision, See AR 16-22, provides good reasons for her to have declined to assign controlling weight, and instead to have assigned little weight, to Dr. Rameshwar's opinion. Therefore, ALJ Shire did not violate the treating physician rule in finding that Dr. Rameshwar's opinion was neither supported by, nor consistent with, the evidence in the record, nor did she violate the treating physician rule in failing to address the frequency and length of Plaintiff's treatment relationship with Dr. Rameshwar in deciding what weight to assign his opinion.
1. Supportability/Consistency of Dr. Rameshwar's Opinion
In discounting Dr. Rameshwar's opinion as “not adequately supported or consistent with the weight of the evidence of record as a whole,” ALJ Shire cited “the examination findings” from Dr. Rameshwar, NPP Tigenoah, and consultative examiner Dr. Nikkah, as well as Plaintiff's activities of daily living, ability to keep appointments, and sporadic use of medications. AR 21. As explained below, ALJ Shire did not err in discounting Dr. Rameshwar's opinion on these grounds.
Throughout the relevant period, Plaintiff received mental health care from providers at the Inwood Primary Care Clinic. At first, the clinic was operated by an entity named Brightpoint Health, but it appears that starting in 2018, the clinic was taken over by an entity named HRH Care. See AR 571 (treatment record for December 4, 2017 appointment is from Brightpoint Health), 612 (treatment record for January 2, 2018 appointment is from HRH Care); see also AR 662 (record for December 20, 2018 appointment which states, “Therapist also announced recent company merger and provided letter of notification, answered client questions.”). For almost all of Plaintiff's visits, the “appointment facility” listed in the records is the Inwood Primary Care Clinic.
Dr. Rameshwar opined that Plaintiff had marked limitations in his abilities to understand, remember, and carry out both simple and complex instructions, and make judgments on both simple and complex work-related decisions. Dr. Rameshwar noted that these limitations resulted from the symptoms of Plaintiff's psychiatric diagnosis, as well as the side effects of psychotropic medications, which affected Plaintiff's judgment, ability to make important work-related decisions, and memory. AR 542. But Plaintiff's treatment records do not support the conclusion that he had such severe problems with his comprehension, memory, or judgment, or that he suffered from side effects from his medications.
The ALJ correctly found that the records from Dr. Rameshwar's treatment of Plaintiff, as well as the records from NPP Tigenoah, do not reflect marked limitations in Plaintiff's mental functioning. As explained in more detail in Section II.B.2, infra, Dr. Rameshwar had only a handful of appointments with Plaintiff over an almost three-year period. At those few appointments with Dr. Rameshwar, Plaintiff's mental status exams were generally unremarkable, with limited exceptions, which is not consistent with having marked limitations. Cf. Anzola v. Berryhill, No. 18-cv-11217 (VSB) (DCF), 2019 WL 10630956, at *17 (S.D.N.Y. Dec. 20, 2019) (“[T]he remarkably consistent, and largely normal, results of Plaintiff's mental status examinations, which hardly changed at all from 2014 to 2017 . . . seemingly suggest that Plaintiff's condition was stable and adequately managed, further undermining Dr. Iqbal's opinion that Plaintiff suffered from marked limitations.”), adopted by 2020 WL 5646329 (S.D.N.Y. Sept. 21, 2020). The mental status exam from the “initial psychiatric assessment” on February 1, 2013 found that Plaintiff's thought form was “appropriate/rational/coherent”; his cognitive functioning was “alert”; his concentration was “good”; his short term recall was “good”; his recall/retention was “good”; his long term recall was “good”; and his judgment was “fair”; but his affect/mood were “depressed”; his insight was “poor”; and his impulse control was “poor.”AR 526. A mental status exam on September 5, 2013 similarly noted “appropriate/rational/coherent” thought form; “appropriate” affect; “alert” cognitive functioning; “fair” insight; “good” impulse control; and “fair” judgment, but an “irritable” mood. AR 505-06. The mental status exam during a December 7, 2015 comprehensive psychiatric assessment performed by Dr. Rameshwar found “goal directed” thought form; “fair” concentration; “fair” short term recall; “fair” recall/retention; “fair” long term recall; and “fair” judgment, but a “depressed, irritable” affect; “lethargic” cognitive functioning; “poor” insight; and “poor” impulse control. AR 396. But Dr. Rameshwar's mental status exam from his final appointment with Plaintiff on January 6, 2016 found “appropriate/rational/coherent” thought form; “alert” cognitive functioning; “fair” impulse control; and “fair” judgment, but a “depressed, irritable” affect; and “poor” insight. AR 388.
Though it was not raised by either party in their memoranda of law, the Court notes that this February 1, 2013 record states that Plaintiff “previously saw this writer while residing at Palladia” and that Plaintiff was “well known to this writer from [Plaintiff's] residential and outpatient [treatment] at Palladia.” AR 525. There is nothing in the administrative record regarding the mental health treatment Plaintiff received at Palladia, but Plaintiff testified at the hearing that he was in a drug treatment program at Palladia in 2006, AR 41-42, long before the alleged disability onset date of January 1, 2014. Accordingly, any treatment relationship that may have existed during Plaintiff's time at Palladia was too long ago to have any relevance in assessing the frequency and length of Plaintiff's treating relationship with Dr. Rameshwar during the relevant time period.
The only other documented contact between Plaintiff and Dr. Rameshwar in the administrative record is a June 18, 2013 medication management appointment; no mental status exam was performed at this visit. AR 517-18.
NPP Tigenoah's treatment records likewise do not support a finding of marked limitations in Plaintiff's mental functioning. Again, Plaintiff's mental status exams-all of which took place after the medical source statement was issued in April 2017-were generally unremarkable and inconsistent with having marked limitations. NPP Tigenoah's psychiatric medical report, completed on April 24, 2017 (the same date as the medical source statement), notes “intact” speech, thought organization, and thought content, “fair” memory, and “fair” insight and judgment. AR 553-54. Mental status exams performed during Plaintiff's subsequent appointments with NPP Tigenoah between November 2017 and January 2020 consistently note “appropriate/rational/coherent” thought form. See AR 567, 621, 634, 637, 643, 646, 649, 654, 659, 673, 676, 679, 682, 688, 693, 703, 706, 709, 712, 719. Moreover, the mental status exams documented in the records of other mental health care providers at the Inwood Primary Care Clinic, where Plaintiff received regular treatment over several years, generally note appropriate, rational, and coherent thought form, fair insight, fair impulse control, and fair judgment. See AR 380, 393, 424, 426, 429-30, 435-36, 440, 445-46, 452, 456, 459, 467, 474, 479, 612, 618; but see AR 401 (goal directed thought form, “fair” concentration, “fair” short term recall, “fair” recall/retention, “fair” long term recall, and “fair” judgment, but “lethargic” cognitive functioning, “poor” insight, and “poor” impulse control,); AR 446, 452, 456 (“poor” judgment).
Insofar as Dr. Rameshwar cited side effects from Plaintiff's psychotropic medications as the basis for his opinion of marked limitations in Plaintiff's abilities to understand, remember, and carry out both simple and complex instructions, and make judgments on both simple and complex work-related decisions, AR 542, as discussed in detail in Section III, infra, there is no evidence in the record to support the finding that Plaintiff was limited by any side effects of his medications. Not only was there evidence in the record, some of which was cited by ALJ Shire, that Plaintiff went through periods when he took his medications only sporadically, AR 18; see, e.g., AR 435-36, 440-42, 445-46, 451-53, 459-60, 467-68, 476-77, 618-19, but when he did take his medications, Plaintiff repeatedly reported that he suffered no side effects. Accordingly, ALJ Shire did not err in discounting Dr. Rameshwar's opinion to the extent that it was based on the impact of side effects from Plaintiff's psychotropic medications.
Dr. Rameshwar also opined that Plaintiff had marked limitations in his abilities to interact appropriately with the public, supervisors, and co-workers, and respond appropriately to usual work situations and changes in a routine work setting, and that these limitations resulted from Plaintiff's irritability, poor social skills, and isolative behavior. AR 543. Again, treatment records do not support the severity of the limitations assessed by Dr. Rameshwar. Both the treatment record for Dr. Rameshwar's “initial psychiatric assessment” of Plaintiff on February 1, 2013 and the treatment record for Plaintiff's September 5, 2013 appointment with Dr. Rameshwar note that Plaintiff's attitude was “cooperative.” AR 505, 526. Although the treatment record for the comprehensive psychiatric assessment performed by Dr. Rameshwar on December 7, 2015 notes that Plaintiff's attitude was “uncooperative,” AR 396, the treatment record from Plaintiff's final appointment with Dr. Rameshwar on January 6, 2016 notes that Plaintiff's attitude was “passively cooperative, evasive.” AR 388.
Records from NPP Tigenoah likewise do not support marked limitations in Plaintiff's ability to interact appropriately with others. NPP Tigenoah's April 24, 2017 psychiatric medical report notes Plaintiff's “cooperative” attitude, appearance, and behavior. AR 553. At appointments on May 9, 2018, June 11, 2018, July 9, 2018, and August 6, 2018, Plaintiff presented “still irritable as always and reported that he does not like to be around people,” but his affect/mood were “neutral.” AR 636-37, 642-43, 645-46, 648-49. Plaintiff's affect/mood continued to be “neutral” at appointments with NPP Tigenoah on October 22, 2018, AR 655, and November 20, 2018, AR 659. And in treatment records for appointments with NPP Tigenoah from spring 2019 through the beginning of 2020, even though Plaintiff's affect/mood was noted to be “depressed, sad, [and] anxious,” Plaintiff had an otherwise normal mental status exam, including a “cooperative” attitude. See AR 673, 676, 679, 682, 688, 693, 703, 706, 709, 712, 719.
While other mental health care providers at the Inwood Primary Care Clinic occasionally noted that Plaintiff had an “uncooperative” attitude, See AR 393, 401, 662, the substantial majority of Plaintiffs treatment records indicate that he had a “cooperative” attitude, See AR 424, 426, 429, 435, 440, 445, 452, 456, 459, 467, 474, 478, 612. And as discussed in more detail in Section III, infra, treatment records reflect that medication was helping Plaintiff's mental functioning despite his irritability. See AR 421 (treatment record from May 30, 2015 appointment: “states he is sleeping well and that meds are helping him in spite of irritable mood”), 423 (treatment record from May 12, 2015 appointment: “until running out meds were helping him control anxiety and irritability and improving his focus”), 612 (treatment record from January 2, 2018 appointment: “reported medication is helping him, less irritable”). Treatment records for appointments with NPP Tigenoah on October 7, 2019 and November 4, 2019 note that Plaintiff was being seen “for medication effectiveness ....and reported improved sleep pattern and decreased mood swings.” AR 702, 705.
A treating physician's opinion may be discounted when it is inconsistent with the physician's own treatment records. See, e.g., Dorta v. Saul, No. 19-cv-2215 (JGK) (RWL), 2020 WL 6269833, at *5 (S.D.N.Y. Oct. 26, 2020) (ALJ was entitled to discount treating physicians' opinions because they “were inconsistent with their own contemporaneous treatment notes and other evidence in the record”) (citing cases). Similarly, a treating physician's opinion may be discounted where, as here, it is inconsistent with treatment records from other providers. See Micheli v. Astrue, 501 Fed.Appx. 26, 28-29 (2d Cir. 2012) (summary order) (upholding ALJ's decision not to assign controlling weight to treating physician's opinion based in part on contradictory findings by other treating physicians); see also Bailey v. Berryhill, No. 18-cv-00013 (WIG), 2019 WL 427320, at *5 (D. Conn. Feb. 4, 2019) (finding “no error with the ALJ's decision to give little weight” to the treating physician's opinion where, among other things, it was “inconsistent with records from other treatment providers”). Accordingly, ALJ Shire did not err in discounting Dr. Rameshwar's opinion, because it was neither supported by, nor consistent with, either his own treatment records or the treatment records of Plaintiff's other mental health care providers.
b. Consultative Examination
ALJ Shire accurately noted that Dr. Rameshwar's opinion also was inconsistent with the examination findings of psychological consultative examiner Dr. Nikkah on April 28, 2016. AR 368-72. Dr. Nikkah conducted a psychiatric evaluation of Plaintiff and found, upon mental status examination, that Plaintiff's demeanor was “cooperative” and that his manner of relating, social skills, and overall presentation were “adequate.” AR 369. Plaintiff was “neatly dressed and adequately groomed”; his eye contact was “appropriate”; his speech was “[f]luent and clear”; his thought processes were “[c]oherent and goal directed”; his affect was “[o]f full range and appropriate in speech and thought content”; his mood was neutral; he was fully oriented; his recent and remote memory skills were intact; his intellectual functioning was “in the average range”; his insight and judgment were both “fair”; but his attention and concentration were “mildly” impaired “due to self-reported anxiety experienced during this part of the evaluation.” AR 369-70.
Dr. Nikkah opined that Plaintiff “demonstrates no evidence in his ability to follow and understand simple instructions and directions or perform simple tasks independently”; “no evidence of limitations in being able to learn new tasks”; mild limitations in “his ability to maintain attention and concentration”; moderate limitations in “his ability to maintain a regular schedule”; and moderate limitations in “his ability to perform complex tasks independently, make appropriate decisions, relate adequately with others, and appropriately deal with stress,” which were “caused by fatigue, distractibility and lack of motivation.” AR 371. Dr. Nikkah concluded that the “results of the evaluation appear to be consistent with psychiatric problems, but in itself, this does not appear to be significant enough to interfere with [Plaintiff's] ability to function on a daily basis.” Id.
In context, it is apparent that Dr. Nikkah intended to write that Plaintiff “demonstrates no evidence of limitations in his ability to follow and understand simple instructions and directions or perform simple tasks independently.”
ALJ Shire gave “some weight” to Dr. Nikkah's opinion-“little weight” to the assessment of moderate limitation in maintaining a regular schedule, because Plaintiff “has indicated that he can attend regular appointments, and he took a computer science class,” AR 2021, but “great weight” to the rest of the opinion, because it was “generally consistent with the rest of the medical record and supported by the examination findings.” AR 21.
While the Second Circuit has noted that “the opinions of consulting physicians . . . generally have less value than the opinions of treating physicians,” Tankisi v. Comm'r of Soc. Sec., 521 Fed.Appx. 29, 34 (2d Cir. 2013) (summary order), the opinions of a consulting source “may constitute substantial evidence if they are consistent with the record as a whole,” Smith v. Colvin, 17 F.Supp.3d 260, 268 (W.D.N.Y. 2014) (quotation marks omitted), and can even “override treating physicians where the non-treating source's opinion is supported by evidence in the record,” Williams v. Colvin, No. 15-cv-6719 (KMK) (PED), 2016 WL 11270671, at *11 (S.D.N.Y. Dec. 14, 2016) (citing Schisler v. Sullivan, 3 F.3d 563, 566-68 (2d Cir. 1993)), adopted sub nom. Williams v. Comm'r of Soc. Sec., 2017 WL 4326119 (S.D.N.Y. Sept. 28, 2017). Accordingly, ALJ Shire did not err in assigning greater weight to Dr. Nikkah's opinion and discounting Dr. Rameshwar's opinion as inconsistent with Dr. Nikkah's examination findings, since Dr. Nikkah's findings were more consistent with the evidence in the record as a whole, as described in detail herein.
c. Activities of Daily Living
In discounting Dr. Rameshwar's opinion, ALJ Shire also cited Plaintiff's ability to maintain his activities of daily living. In her decision, she found that “[t]he record does not indicate that the quality of the claimant's daily functioning has been affected as severely as alleged; rather, he has been able to independently sustain activities and interests over time.” AR 20. The ALJ noted that Plaintiff's “range of activities is not suggestive of total disability,” citing the report from an internal medicine consultative examination by Dr. Carol McLean Long and a Function Report filled out by Falyne Elridge, Plaintiff's case manager. Id. Dr. McLean Long noted with respect to activities of daily living that Plaintiff did light cooking, cleaning, and laundry; could shower, bathe, and dress himself daily; and watched television and listened to the radio. AR 374.In the Function Report, Ms. Elridge noted in the section regarding daily activities that Plaintiff “regularly has appointments 4-5 a week and adjusts his schedule accordingly”; had no problem with personal care; prepared his own meals daily; performed household chores, although it took him “about 3-4 hours to do chores”; used public transportation; could go out alone; went shopping in stores; could pay his bills; played video games and watched television; and had no problems getting along with family, friends, neighbors, or others. AR 286-91. As ALJ Shire pointed out, NP Tigenoah included in the April 24, 2017 psychiatric medical report that Plaintiff could complete his activities of daily living independently. AR 21; See AR 540 (Plaintiff “is able to complete his ADLs independently, pays his own bills, bath[ing] & grooming.”).
Consistent with the foregoing, Plaintiff reported to psychiatric consultative examiner Dr. Nikkah that he was “able to dress, bathe, and groom himself on a daily basis”; that he cooked food, did general cleaning, laundry, and shopping all once per week; that he was able to manage money and take public transportation independently; that he occasionally socialized and was “‘somewhat' satisfied with his social life”; and that he spent most of his days watching television and listening to music. AR 370-71.
In addition, Plaintiff testified at his February 25, 2020 hearing that he lived alone and could do cooking, cleaning, and laundry and went shopping with his father. AR 35, 46; See AR 759-62 (Plaintiff testified at February 5, 2018 hearing that he lived alone, cooked, cleaned, mopped, did laundry, and went food shopping, but sometimes had trouble getting dressed due to pain). As noted by ALJ Shire, Plaintiff also testified that he could attend most of his appointments, but when he could not make them, he called and rescheduled. AR 20; See AR 55. The ALJ found that Plaintiff could “maintain a regular schedule, based on his testimony and the lack of anything else in the record showing that he would not be able to maintain a schedule.” AR 20. Furthermore, she pointed out that during the relevant time period, Plaintiff “attended and completed a computer science class, and did all the required work, except he did not obtain the final certificate.” Id.; See AR 49-50 (Plaintiff's hearing testimony); see also AR 435, 440, 445, 467, 478 (treatment records mentioning Plaintiff's attendance at school).
An ALJ may discount a treating physician's opinion when it is inconsistent with evidence of plaintiff's activities. See Medina v. Comm'r of Soc. Sec., 831 Fed.Appx. 35, 36 (2d Cir. 2020) (summary order) (“The ALJ's decision not to afford Shah's opinion controlling weight as the treating physician is well-supported by the record, which contains notes showing Medina's improved mood and her ability to independently manage reported activities of daily life, including tasks such as cooking, cleaning, self-care, banking, shopping and driving without assistance.”); Monroe v. Comm'r of Soc. Sec., 676 Fed.Appx. 5, 8 (2d Cir. 2017) (summary order) (“[I]n assessing Dr. Wolkoff's opinion that Monroe had little ability to deal with stress or the public and was limited in behaving in a stable manner in social situations, the ALJ also determined that the finding was refuted by the fact that Monroe had engaged in a range of recreational activities around the same time . . .”); see also Steven H. v. Comm'r of Soc. Sec., No. 20-cv-1472 (FPG), 2022 WL 263060, at *4 (W.D.N.Y. Jan. 28, 2022) (“The ALJ did not err in considering Plaintiff's recreational activities to discount [the treating physician's] conflicting restrictions.”); Dorta, 2020 WL 6269833, at *6 (“Similarly, it was not error for the ALJ to take note that the claimant appeared to participate in activities of daily living as part of the relevant evidence in the record that was inconsistent with certain opinions of [the treating physicians].”). Accordingly, ALJ Shire did not err in finding that Dr. Rameshwar's sweeping opinion of marked limitations was inconsistent with the evidence in the record concerning Plaintiff's activities of daily living, as well as his ability to maintain a schedule and attend school. Dr. Rameshwar's opinion was not supported by the evidence in the record regarding these activities; indeed, it was directly undercut by this evidence.
2. Frequency and Duration of Treatment Relationship
As part of his argument that ALJ Shire erred in failing to explicitly address all of the Burgess factors, Plaintiff contends that ALJ Shire erred because she “never mentioned that Dr. Rameshwar treated Mr. Whetstone regularly for several years.” Pl.'s Mem. at 15.But the administrative record does not support the notion that there was such a regular treatment relationship. While Plaintiff received regular treatment from various other mental health care providers at the Inwood Primary Care Clinic between February 2013 and February 2016, and then again between November 2017 and January 2020, Dr. Rameshwar himself treated Plaintiff only five times over three years. Dr. Rameshwar first saw Plaintiff on February 1, 2013 for an initial psychiatric assessment and diagnosed him with bipolar disorder and cannabis abuse. AR 525-26. Plaintiff next saw Dr. Rameshwar on June 18, 2013 and September 5, 2013 for medication management appointments, AR 505-06, 517-18,but then did not see Dr. Rameshwar again for more than two years, when he had an appointment for a comprehensive psychiatric assessment on December 7, 2015, AR 395-97. Plaintiff had only one other meeting with Dr. Rameshwar-a January 6, 2016 appointment for medication management. AR 388-89.
ALJ Shire also never acknowledged in her decision that Dr. Rameshwar was a psychiatrist, and thus failed to address the fourth Burgess factor, i.e., whether the physician is a specialist. Nonetheless, it is evident that the ALJ knew that Dr. Rameshwar was a physician and a mental health care provider. See AR 18 (“With regard to the claimant's mental health issues, the record shows that he has been treated at the Inwood Primary Care Clinic. He was seen by Karamchand Rameshwar, MD, on February 1, 2013, and diagnosed with bipolar disorder and cannabis abuse, and was started on psychotropic medications.”). In any event, the failure to address this factor is no more than harmless error since Dr. Rameshwar's opinion was neither supported by, nor consistent with, the record in this case, as detailed above.
Notably, the treatment record for the June 18, 2013 appointment states that Plaintiff was “seen as walk in as did not come to original appt today,” AR 517, and the treatment record for the September 5, 2013 appointment states that Plaintiff was “seen as a walk in, [p]rimary provider on vacation,” AR 505. Neither record suggests that Plaintiff had any kind of consistent or significant treating relationship with Dr. Rameshwar during the relevant time period.
Moreover, the record indicates that NPP Tigenoah had not personally treated Plaintiff at all prior to completing both the psychiatric medical report and the medical source statement on April 24, 2017. Plaintiff argues that NPP Tigenoah “reported that he first treated [Plaintiff] ¶ 2013 and continued treating him monthly through April 2017,” Pl.'s Mem. at 8, citing the psychiatric medical report, which notes in the section “Dates of Treatment” that Plaintiff was seen monthly from 2013 through April 24, 2017. See AR 538. But this time period reflects the totality of Plaintiff's treatment with assorted providers at the Inwood Primary Care Clinic, not treatment with NPP Tigenoah specifically. While NPP Tigenoah may have seen Plaintiff on the date on which he filled out the psychiatric medical report and the medical source statement, there is no separate treatment record for that date. Rather, the first actual treatment record documenting an appointment with NPP Tigenoah is dated November 14, 2017-nearly seven months after the medical source statement was submitted-when Plaintiff saw NPP Tigenoah for medication management. See AR 566-67. The next treatment record documenting an appointment with NPP Tigenoah is dated February 12, 2018, AR 620-22, and it was only thereafter-up through January 2020-that Plaintiff treated regularly with NPP Tigenoah. See AR 633-34, 636-37, 642-43, 645-46, 648-49, 654-55, 658-59, 668-69, 672-73, 675-76, 678-79, 681-82, 687-88, 692-93, 700-01, 702-03, 705-06, 708-09, 711-12, 718-19.
During the period between Plaintiff's initial appointment with Dr. Rameshwar and his treatment with NPP Tigenoah, Plaintiff's continued mental health treatment was provided by a number of other practitioners at the Inwood Primary Care Clinic-NPs Michelle Latimer, AR 486, 488, 490, 492, 494, 497, 501, 503, 519, 523 (appointments between February 2013 and January 2014), and Shoshannah Pearlman, AR 421-31, 435-36, 440-41, 445-46, 451-53, 456-57, 459-60, 467-68, 473-74, 476-77, 478-79 (appointments between May 2014 and May 2015); and LCSW Evelyn Vega, AR 380-81, 393, 399-402 (appointments between November 2015 and February 2016). While NPP Tigenoah did complete the medical report and medical source statement on April 24, 2017, there are no mental health treatment records for Plaintiff during the period between February 12, 2016 and November 14, 2017, the date of Plaintiff's first documented appointment with NPP Tigenoah.
In short, the April 24, 2017 medical source statement was drafted by a provider-NPP Tigenoah-who appears to have seen Plaintiff for the first time on the day that the statement was prepared, and co-signed by a provider, Dr. Rameshwar, who saw Plaintiff five times between February 2013 and January 2016, but who had not seen Plaintiff for more than 16 months as of the date the medical source statement was drafted. Based on the foregoing, even though ALJ Shire failed to address the frequency and duration of Plaintiff's treatment relationship with Dr. Rameshwar or NPP Tigenoah, this amounted to no more than harmless error. Plaintiff's treatment relationship with these providers prior to the date the opinion was issued was not nearly as extensive as Plaintiff claims, and, as previously explained, the opinion was not consistent with the record of Plaintiff's treatment with other providers. See Steven H., 2022 WL 263060, at *4 (upholding ALJ's decision to assign “partial weight” to treating physician's opinions where “the only treatment records from [the treating physician] are from seven encounters . . ., mostly for medication management” and it was “therefore not clear that [the treating physician] had a long or extensive treatment relationship with Plaintiff”).
For all of these reasons, ALJ Shire did not violate the treating physician rule. She did not err in failing to give controlling weight to the opinion of Plaintiff's treating psychiatrist Dr. Rameshwar because his opinion was both unsupported by, and inconsistent with, his own treatment records, the treatment records of Plaintiff's other mental health care providers, the opinion of the consultative examiner, and the evidence of Plaintiff's activities of daily living. See Rusin v. Berryhill, 726 Fed.Appx. 837, 839 (2d Cir. 2018) (summary order) (“The ALJ did not err in declining to afford [the treating physician's] opinion controlling weight because his opinion is inconsistent with his treatment notes and diagnostic observations, the other medical opinion evidence, and [plaintiff's] reported activities of daily living.”). Moreover, even though ALJ Shire procedurally erred in failing to explicitly address all of the Burgess factors, the “substance of the treating physician rule was not traversed,” as the Court's searching review of the record, including all of the treatment records, opinion evidence, and testimonial evidence, demonstrated that there were good reasons for the ALJ to assign little weight to Dr. Rameshwar's opinion. Estrella, 925 F.3d at 96.
III. The ALJ's Consideration of Medication Side Effects
Plaintiff maintains that ALJ Shire's RFC determination is not supported by substantial evidence because she failed to take into consideration the side effects that Plaintiff purportedly experienced from taking his medication. Pl.'s Mem. at 15-16. NPP Tigenoah's April 24, 2017 psychiatric medical report states that Plaintiff was taking four different psychotropic medications which caused side effects including dizziness, lethargy, stomach upset, headaches, generalized weakness, nausea, and anxiety, all of which made it “difficult for [Plaintiff] to function at a work related program effectively.” AR 541. In light of this report, Plaintiff contends that the ALJ should have included in Plaintiff's RFC limitations for being off-task or a loss of concentration, or should have at least provided “an explanation as to why [Plaintiff's] medications had no impact on work in the RFC.” Pl.'s Mem. at 16.
But there is no evidence in the record to support either NPP Tigenoah's comment or any finding that Plaintiff was limited by any side effects from his medications, and therefore ALJ Shire did not err by not limiting Plaintiff's RFC based on such supposed side effects. Although Plaintiff testified at the February 5, 2018 hearing before ALJ Mates that a side effect of his medications was that he took them at night “and can't function in the morning,” AR 753, this testimony stands in stark contrast to the treatment records, which reflect Plaintiff's repeated reports that he experienced no side effects from his medications. See AR 380, 388, 421, 423, 426, 429, 435, 440, 445, 451, 456, 459, 505, 566, 612, 620, 633, 636, 642, 645, 648, 654, 658, 668, 672, 675, 678, 681, 687, 692, 702, 705, 708, 711, 718. At a handful of appointments in 2013 and 2014, Plaintiff reported experiencing “oversedation” in the morning and “apathy” as side effects, but these seemed to relate to his use of the anti-psychotic medication Quetiapine- brand name Seroquel-and he discontinued taking that medication as of his June 3, 2014 appointment. See AR 476-77, 478, 503, 525.
At some point, Plaintiff resumed taking Seroquel. The first documentation reflecting a resumption of Seroquel is the treatment record for an April 11, 2017 appointment with primary care NP Roberta Kelly, which notes that Quetiapine Fumarate is among Plaintiff's current medications. See AR 432; see also AR 42-43 (at the February 25, 2020 hearing, Plaintiff testified that Seroquel made him “feel down,” and when he told his doctors, they gave him another medication that “kind of worked the same way,” so then he went back on “another Seroquel”). Subsequent treatment records reflect the continued use of Quetiapine Fumarate, but no side effects were reported. See AR 560, 562, 564, 566, 569, 571, 612, 616, 620-21, 623, 628, 633, 636, 639, 642, 645, 648, 650, 652, 654, 656, 658, 660, 662, 665, 668, 670, 672, 675, 678, 681, 684, 687, 690, 692, 695, 700, 702, 705, 708, 711, 714, 718, 721, 723.
Moreover, treatment records, including several treatment records from before the April 24, 2017 psychiatric medical report, and records from appointments with NPP Tigenoah himself after that report was prepared, demonstrate that Plaintiff was benefitting from the medications he was taking, and, other than the issue with Seroquel noted above, was not reporting any complaints about side effects. From the period prior to the report, the treatment record for an appointment on May 12, 2015 with NP Pearlman for “[p]sych/med management/30-minute counseling” notes that Plaintiff missed an appointment “because he was working and ran out of meds,” but “until running out meds were helping him control anxiety and irritability and improving his focus.” AR 423. The treatment record for an appointment on May 30, 2015 with NP Pearlman notes that Plaintiff reported that he was “sleeping well and that meds are helping him in spite of irritable mood.” AR 421. The treatment record for an appointment on July 28, 2015 with primary care NP Roberta Kelly notes that Plaintiff had “no complaints,” was “sleeping well and denies any anxiety or depressive sx [symptoms],” and did not want to “do any therapy at this time - states has been stable on present meds.” AR 408.
From the period after NPP Tigenoah's report, the treatment record for a medication management appointment on January 2, 2018 with NPP Aleen Boyd-McKoy notes that Plaintiff “reported medication is helping him, less irritable.” AR 612. At an April 9, 2018 appointment with NPP Tigenoah, Plaintiff “reported stable mood and denied any current side effects.” AR 633. The treatment record for a September 6, 2019 appointment with NPP Tigenoah notes as “Progress,” “Improved mood and sleep pattern,” and as “Recommendations/Dosing rationale,” “Continue with current treatment plan.” AR 692. The treatment records for appointments on October 7, 2019 and November 4, 2019 with NPP Tigenoah state with respect to medication effectiveness that Plaintiff “reported improved sleep pattern and decreased mood swings”; under “Progress,” was “Responding well to treatment”; and under “Recommendations/Dosing rationale,” should “Continue with current treatment plan.” AR 702, 705. Treatment notes for December 3, 2019, December 23, 2019, and January 22, 2020 appointments with NPP Tigenoah all note that Plaintiff was “Responding well to treatment” and should “Continue with current treatment plan.” AR 708, 711, 718.
Accordingly, there was no reason for ALJ Shire to consider the impact of medication side effects in arriving at her RFC determination. Plaintiff himself never reported to his mental health care providers-nor did he testify at the hearing-to any of the side effects noted by NPP Tigenoah. ALJ Shire's implicit finding that Plaintiff was not limited by any side effects from his psychotropic medications was not erroneous and is supported by substantial evidence. See Martes v. Comm'r of Soc. Sec., 344 F.Supp.3d 750, 768 (S.D.N.Y. 2018) (“Given the lack of any medical records corroborating [plaintiff's] claimed side effects, we find no error in the ALJ's decision not to incorporate the side effects into a discussion of [plaintiff's] RFC or into the resulting RFC itself.”); cf. Martinez v. Comm'r of Soc. Sec., No. 21-cv-11054 (SLC), 2023 WL 2707319, at *16 (S.D.N.Y. Mar. 30, 2023) (“An ALJ's failure to consider a claimant's complaints regarding their medication side effects is harmless error, however, where the complaints are unsupported by the objective medical record.”) (quotation marks omitted).
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff's motion for judgment on the pleadings (ECF No. 21) be DENIED, that the Commissioner's motion for judgment on the pleadings (ECF No. 25) be GRANTED, and that judgment be entered in favor of the Commissioner.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Nelson S. Roman, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Roman, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).