Opinion
18CV124 (VB)(LMS)
03-12-2019
EDGARDO AYALA, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
TO: THE HONORABLE VINCENT L. BRICCETTI, U.S.D.J.
Plaintiff Edgardo Ayala brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Commissioner of Social Security (the "Commissioner"), which found that Plaintiff was not entitled to either disability insurance benefits ("DIB") or supplemental security income ("SSI") under the Social Security Act (the "Act"). Currently pending before the Court are Plaintiff's motion, and the Commissioner's cross-motion, for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Docket ## 12, 21. Because I find that the Commissioner's decision regarding Plaintiff's claims utilized the proper legal standards and is supported by substantial evidence, I conclude, and respectfully recommend that Your Honor should conclude, that Plaintiff's motion should be denied, the Commissioner's cross-motion should be granted, and the case should be dismissed.
I. BACKGROUND
A. Procedural History
On November 19, 2013, Plaintiff filed applications for DIB and SSI, alleging October 17, 2012, as the onset date. Administrative Record ("AR") (Docket # 10) 96-97, 111, 124, 253-66. Following the denial of Plaintiff's claims on March 19, 2014, AR 125-32, Plaintiff requested a hearing before an ALJ. AR 133-37. An administrative hearing was held on June 1, 2016, at which Plaintiff appeared in person and testified, AR 52-80; a supplemental hearing was held on September 19, 2016, at which Plaintiff appeared and a vocational expert testified. AR 81-95.
In a Disability Report - Field Office, the potential onset date is listed as November 1, 2013, AR 318, but in a Disability Report - Adult, Plaintiff listed November 16, 2012, as the date on which he stopped working. AR 323. In a separate Field Office Disability Report Plaintiff's alleged onset date is listed as November 24, 2012. AR 383. The ALJ adopted November 24, 2012, as the alleged onset date in her decision. AR 34.
The ALJ issued a decision on November 3, 2016, finding that Plaintiff was not under a disability within the meaning of the Act. AR 29-51. On December 8, 2016, Plaintiff filed a request for review of the ALJ's decision with the Appeals Council. AR 251-52. The Appeals Council denied review on November 6, 2017. AR 1-7. This rendered the ALJ's decision the final action of the Commissioner.
On January 8, 2018, Plaintiff commenced the instant action in this Court, alleging that the Commissioner's decision was not supported by substantial evidence and was contrary to law. Docket # 1. On May 9, 2018, the Commissioner filed the administrative record, which constituted her answer. Docket # 10. Thereafter, Plaintiff filed a motion for judgment on the pleadings, contending that the ALJ's decision failed to employ proper legal standards and was not supported by substantial evidence and that therefore, the decision should be reversed solely for a calculation and award of benefits. Docket ## 12-13, 23. In the alternative, Plaintiff contends that the case should be remanded to the Commissioner for a new hearing and decision. Id. The Commissioner filed a cross-motion for judgment on the pleadings, arguing, in contrast, that the ALJ's decision employed proper legal standards and was supported by substantial evidence and should therefore be affirmed. Docket ## 21-22.
B. Factual Background
Both parties accurately state the contents of the administrative record, although they have highlighted different aspects thereof in their respective recitations of the facts. Their disputes center around the manner in which the ALJ applied the law to the facts in terms of how she weighed the evidence in the record, as well as the extent to which her decision was supported by substantial evidence. Accordingly, rather than provide a lengthy recitation of the facts based on the voluminous administrative record, the Court adopts the factual background as set forth in the parties' briefs and discusses the evidence in the record to the extent necessary to a determination of the issues raised herein.
II. APPLICABLE LEGAL PRINCIPLES
A. 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 determine whether the Commissioner applied the correct legal standard 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 standard is grounds for reversal of the ruling. 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 (internal quotation marks and citations omitted). When determining whether substantial evidence supports the Commissioner's decision, it is important that the court "carefully consider[] the whole record, examining evidence from both sides." Tejada, 167 F.3d at 774 (citing Quinones v. Chater, 117 F.3d 29, 33 (2d Cir. 1997)). "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) (citation omitted). If the "decision rests on adequate findings supported by evidence having rational probative force, [the court] will not substitute [its own] judgment for that of the Commissioner." Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). Moreover, the ALJ "has an obligation to develop the record in light of the non-adversarial nature of the benefits proceedings, regardless of whether the claimant is represented by counsel." Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citations omitted).
B. 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. §§ 423(d)(1)(A), 1382c(a)(3)(A). In evaluating a claim of disability, regulations issued pursuant to the Act set forth a five-step process that the Commissioner must follow. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
First, the Commissioner considers whether the claimant is engaged in "substantial gainful activity." Id. at §§ 404.1520(a)(4)(i),(b), 416.920(a)(4)(i),(b). If the claimant is engaged in "substantial gainful activity," then the Commissioner will find that the claimant i not disabled. Id. 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. Id. at §§ 404.1520(a)(4)(h), 416.920(a)(4)(h). 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." Id. at §§ 404.1520(c), 416.920(c). If the claimant suffers from any severe impairment, the Commissioner at step three must decide if the impairment meets or equals an impairment presumed severe enough to render one disabled, listed in Appendix 1 to Part 404, Subpart P of the Social Security Regulations. See id. at §§ 404.1520(a)(4)(iii),(d), 416.920(a)(4)(iii),(d). If the claimant's impairments do not satisfy the criteria of a listing, then the Commissioner considers all of the relevant medical and other evidence and decides the claimant's residual functional capacity ("RFC"). See id. at §§ 404.1520(e), 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. §§ 404.1545(a)(1), 416.945(a)(1). Then, the Commissioner proceeds to the fourth step to determine whether the claimant can do his or her past relevant work. See id. at §§ 404.1520(a)(4)(iv),(e)-(f), 416.920(a)(4)(iv),(e)-(f). If it is found that the claimant cannot do 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 make an adjustment to other work. See id. at §§ 404.1520(a)(4)(v),(g), 416.920(a)(4)(v),(g). In order 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. See id. at §§ 404.1560(c), 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) (citations omitted). 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 other work. DeChirico, 134 F.3d at 1180 (citation omitted).
III. DISCUSSION
In deciding Plaintiff's case, the ALJ applied the five-step sequential analysis as required by the Social Security regulations and set forth above. At the first step of the sequential analysis, the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 24, 2012, the alleged onset date. Id. At the second step, the ALJ determined that Plaintiff suffered from lumbar disc disorder and depressive disorder, both of which were "severe" impairments within the meaning of the regulations. AR 34-35. The ALJ noted that Plaintiff suffered from asthma, but found this to be a non-severe impairment. AR 35. Third, the ALJ concluded that Plaintiff's impairments did not meet or medically equal the severity of any of the impairments listed in Appendix 1 to Subpart P in Part 404 of the Social Security regulations. Id.
With respect to Plaintiff's mental impairment, in determining that Plaintiff's impairment neither met nor medically equaled the severity of listing 12.04 (affective disorders), the ALJ considered whether the "paragraph B" criteria of the listing were met. Paragraph B requires at least two of the following limitations: (1) marked restriction of activities of daily living; or (2) marked difficulties in maintaining social functioning; or (3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of decompensation, each of extended duration. 20 C.F.R. Part 404, Subpt. P, App. 1 § 12.04. The ALJ first determined that Plaintiff had no restriction in activities of daily living because Plaintiff reported that he could dress, bathe, and groom himself, as well as do cooking, cleaning, and laundry and go shopping by himself. AR 35. The ALJ found that Plaintiff had "no difficulties" with social functioning, noting that mental status examinations from Plaintiff's treating psychiatrist reported that Plaintiff's affect was "generally appropriate and of full range"; that Plaintiff reported that he spoke with his girlfriend on a daily basis and saw her once a week and that he went to church on a regular basis; and that Plaintiff reported in his adult function report that he does not have problems getting along with friends and family or with people in positions of authority. Id. The ALJ found that Plaintiff had moderate difficulties with respect to maintaining concentration, persistence, or pace, noting that Plaintiff reported having difficulty paying attention due to pain, but that he said that he could nevertheless read and watch movies. AR 36. Finally, the ALJ noted that Plaintiff had had no episodes of decompensation of extended duration. Id. Based on the foregoing, the ALJ concluded that the paragraph B criteria were not satisfied. Id.
This is the version of the listing that was in effect on November 3, 2016, the date of the ALJ's decision.
The ALJ next considered whether the "paragraph C" criteria of the listing were met. With respect to listing 12.04, paragraph C is met when there is a medically documented history of a chronic affective disorder lasting at least two years which has "caused a more than minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support," coupled with one of the following: (1) repeated episodes of decompensation, each of extended duration; or (2) a "residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate"; or (3) one or more years of an "inability to function outside a highly supportive living arrangement." 20 C.F.R. Part 404, Subpt. P, App. 1 § 12.04(c). The ALJ found that the evidence failed to establish the paragraph C criteria for this listing. AR 36.
See footnote 2, supra.
Therefore, the ALJ proceeded to determine Plaintiff's RFC, finding that he had the RFC to perform "light work" with "additional mental health related limitations." Id. The ALJ specified that Plaintiff could lift up to 20 pounds at a time, frequently lift or carry objects weighing up to 10 pounds, and stand, walk, and sit for approximately six hours each in an eight-hour workday, but he was limited to "performing simple and repetitive tasks but not at an assembly line or production rate." Id.
The regulations define light work as that which "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. §§ 404.1567(b), 404.967(b).
At the fourth step in the analysis, the ALJ found that Plaintiff was unable to perform his past relevant work of "truck driver delivery work," which required a medium level of exertional activity. AR 42-43. At the fifth step, the ALJ took into account Plaintiff's age (at age 39 on his alleged disability onset date, he was a "younger individual"), education (he had at least a high school education and was able to communicate in English), work experience (unskilled work), and RFC, in conjunction with the Medical-Vocational guidelines contained in 20 C.F.R. Part 404, Subpt. P, App. 2. AR 43. The ALJ noted that if Plaintiff had had the RFC to perform the full range of light work, then Medical-Vocational Rule 202.20 would have directed a finding of "not disabled." Id. However, the ALJ noted that because Plaintiff's ability to perform the full range of light work had been impeded by additional limitations, he had consulted a vocational expert. Id. Based on the vocational expert's testimony, the ALJ concluded that Plaintiff was "capable of making a successful adjustment to other work that exists in significant numbers in the national economy," and therefore, she determined that a finding of "not disabled" was appropriate under the framework of Medical-Vocational Rule 202.20. AR 44. Accordingly, the ALJ decided that Plaintiff was not under a disability within the meaning of the Act from November 24, 2012, the alleged onset date, through November 3, 2016, the date of the decision. Id.
In his motion papers, Plaintiff argues that the Commissioner's decision should be reversed solely for a calculation and award of benefits or, in the alternative, the case should be remanded for a new hearing because (1) the ALJ improperly weighed the medical opinion evidence and improperly determined Plaintiff's RFC; (2) the ALJ failed to properly evaluate Plaintiff's testimony; and (3) the Appeals Council failed to properly consider new medical evidence. Pl.'s Mem. of Law in Supp. (Docket # 13). In response, the Commissioner cross-moves for judgment on the pleadings, contending that the ALJ's decision should be affirmed because it is legally correct and supported by substantial evidence. Def.'s Mem. of Law in Opp'n (Docket # 22).
A. Evaluation of Medical Opinion Evidence and RFC Determination
Plaintiff argues that the ALJ improperly weighed the medical opinion evidence of record and improperly determined his RFC. Pl.'s Mem. of Law in Supp. at 18-28. The Commissioner argues to the contrary. Def.'s Mem. of Law in Supp. at 20-31.
As a general matter, an ALJ is directed to consider "every medical opinion" in the record, regardless of its source. 20 C.F.R. §§ 404.1527(c), 416.927(c). Yet not every medical opinion is assigned the same weight. Under the Social Security regulations, the opinions of a treating source as to the nature and severity of a claimant's impairments are generally, but not always, entitled to "more weight" relative to those from other treatment providers. See id. at §§ 404.1527(c)(2), 416.927(c)(2); Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 1995). Such opinions are given controlling weight if they are "well-supported by medically acceptable clinical and laboratory diagnostic techniques and [are] not inconsistent with the other substantial evidence" in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Rugless v. Comm'r of Soc. Sec., 548 F. App'x 698, 700 (2d Cir. 2013). Conversely, these opinions "need not be given controlling weight where they are contradicted by other substantial evidence in the record." Veino, 312 F.3d at 588.
The treating physician rule applicable to SSI claims filed before March 27, 2017, is found at 20 C.F.R. § 416.927.
In the event that a treating physician's opinion is not given controlling weight, the ALJ must still consider various factors to determine the appropriate amount of deference to assign it. These factors include: (i) the length of the treatment relationship and the frequency of examination; (ii) the nature and extent of the treatment relationship; (ii) the extent to which the medical source provides relevant evidence to support an opinion; (iv) the extent to which the opinion is consistent with the record as a whole; (v) whether the opinion is given by a specialist; and (vi) other factors which may be brought to the attention of the ALJ. 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii),(c)(3)-(c)(6), 416.927(c)(2)(i)-(ii),(c)(3)-(d)(6). 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 F. App'x 67, 70 (2d Cir. 2013). Nonetheless, the Commissioner "will 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 opinion." Id. at §§ 404.1527(d)(2), 416.927(c)(2). "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). Certain findings, however, such as whether a claimant is disabled and cannot work, are reserved to the Commissioner. 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1).
This citation is to the version of the treating physician rule applicable to DIB claims filed before March 27, 2017.
The ALJ did not err in applying the treating physician rule in this case. A reading of the ALJ's decision in its entirety makes clear that the opinions of treating physicians Dr. Tuluca and Dr. Longshore, while considered, were not afforded controlling weight due to their inconsistencies with other substantial evidence in the record. Id. at §§ 404.1527(c)(2), 416.927(c)(2); see also Cohen v. Comm'r of Soc. Sec., 643 F. App'x 51, 53 (2d Cir. 2016) (summary order) ("The Commissioner retains the discretion to reach a conclusion inconsistent with an opinion of a treating physician where that conclusion is supported by sufficient contradictory evidence."); Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) ("It is an accepted principle that the opinion of a treating physician is not binding if it is contradicted by substantial evidence[.]") (citation omitted). Similarly, the ALJ applied the proper legal standard in her consideration of the opinion of treating Nurse Practitioner ("NP") Doh. Because a nurse practitioner is not an "acceptable medical source" under the Social Security regulations, see 20 C.F.R. §§ 404.1513(a), 416.913(a), a nurse practitioner's opinion is not entitled to controlling weight under the regulations. Genier v. Astrue, 298 F. App'x 105, 108 (2d Cir. 2008) ("[N]urse practitioners and physicians' assistants are defined as 'other sources' whose opinions may be considered with respect to the severity of the claimant's impairment and ability to work, but need not be assigned controlling weight.") (citation omitted); SSR 06-03p, 2006 WL 2329939, at *2 (S.S.A. Aug. 9, 2006). Some cases have stated that as an "other source" opinion, the opinion of a nurse practitioner is not entitled to any particular weight under the regulations. See, e.g., Taylor v. Colvin, Case No. 3:14-CV-0928 (GTS), 2016 WL 1049000, at *5 (N.D.N.Y. Mar. 11, 2016). Other cases have stated that the opinions of "other sources" are "still entitled to some weight, especially where there is a regular treatment relationship with the claimant." Evans v. Comm'r of Soc. Sec., 110 F. Supp. 3d 518, 536 (S.D.N.Y. 2015) (citation omitted). Either way, the ALJ did not err in affording little weight to NP Doh's opinion, where she found it to be inconsistent with other substantial evidence in the record. See, e.g., Ross v. Colvin, No. 6:13-CV-00755 (NAM/TWD), 2014 WL 5410327, at *17 (N.D.N.Y. Oct. 21, 2014) (ALJ properly gave little weight to opinion of nurse practitioner where it was "inconsistent with the record as a whole").
The ALJ also accorded "little weight" to the statement of treating psychiatrist Dr. Herbert Meadow that Plaintiff should not work for one year due to his mental health diagnoses since "an assessment as to whether an individual is able to work is an opinion reserved to the Commissioner." AR 41. The ALJ noted that the record "does not include any treatment notes from Dr. Meadow." AR 40. Plaintiff does not challenge the weight assigned to this opinion statement by the ALJ.
These citations are to the versions of the regulations in effect before March 27, 2017 (the ALJ's decision was issued on November 3, 2016).
Opinions Regarding Plaintiff's Physical Impairment
On June 8, 2016, Plaintiff's treating physician Dr. Tuluca completed a Disability Impairment Questionnaire in which he opined that Plaintiff was unable to sit more than one hour in an 8-hour work day; unable to stand and/or walk more than one hour in an 8-hour work day; would have to get up from a seated position every hour in an 8-hour work day for 15-20 minutes; would have to be able to sit with both legs elevated to waist level as needed; could occasionally lift and occasionally carry 5-10 pounds; would occasionally during an 8-hour work day experience symptoms severe enough to interfere with Plaintiff's attention and concentration; would need to take breaks to rest lasting 15-20 minutes at unpredictable intervals during an 8-hour work day; and would likely miss work two to three times a month as a result of his impairment. AR 939-43. In addressing Dr. Tuluca's opinion, the ALJ stated,
Throughout Dr. Tuluca's Disability Impairment Questionnaire, the word "occasionally" referred to "up to 1/3 of an 8-hr. day." See, e.g., AR 941.
While I acknowledge that Dr. Tuluca had a treating relationship with the claimant, I accord his opinion little weight. Notably, the claimant himself reported being able to lift and carry significantly more weight than Dr. Tuluca opined and his overall records do not document findings that support his other opined restrictions. Moreover, as will be discussed in detail below, the treatment notes from the claimant's psychiatrist dated from November and December of 2015 document that the claimant was working three to four days a week. This is further indication that the claimant is not as limited as Dr. Tuluca opined.[]AR 39.
Indeed, several of treating psychiatrist Dr. Longshore's treatment notes spanning the period from October, 2015, through July, 2016, mention Plaintiff working. The treatment note from October 28, 2015, states that Plaintiff had "come directly from his construction job." AR 1030. The treatment note from November 11, 2015, states that Plaintiff was "tring [sic] to work but back pain makes it difficult," AR 1032, but then the treatment note from November 18, 2015, states that Plaintiff was "wearing clothing from work which is soiled" and that Plaintiff "continues to work." AR 1034. The treatment note from December 4, 2015, states that Plaintiff was "dressed in work clothing" and had "been able to work 3-4 days per week." AR 1036. The treatment note from January 29, 2016, states that Plaintiff reported that he "injured his right arm while work[ing]." AR 1043. The treatment note from March 4, 2016, states that Plaintiff reporting working "fo[r] the first time today; worked as a flagman as his back remains in pain," AR 1047, and a treatment note from July 11, 2016, states that Plaintiff reported that "he has worked several days recently." AR 1033.
An ALJ may reject a treating physician's medical opinion when it is contrary to the physician's own treatment notes. Monroe v. Comm'r of Soc. Sec., 676 F. App'x 5, 8 (2d Cir. 2017) ("The ALJ did not impermissibly substitute [her] own expertise or view of the medical proof for the treating physician's opinion. Rather, the ALJ rejected [the treating physician's] opinion because she found it was contrary to his own treatment notes.") (internal quotation marks and citation omitted); see Cichocki v. Astrue, 534 F. App'x 71, 75 (2d Cir. 2013) ("Because [the treating physician's] medical source statement conflicted with his own treatment notes, the ALJ was not required to afford his opinion controlling weight."). Dr. Tuluca's treatment notes, which spanned a period of a little over a year—from June, 2015, to July, 2016—reflect that in general, although Plaintiff had an antalgic gait, he did not limp and was able to ambulate without assistive devices. AR 952-1018. Plaintiff generally complained of lower back pain radiating down his legs, and Dr. Tuluca treated him with a combination of epidural steroid injections and prescription medications. Id. Although the treatment notes report Plaintiff stating that he was unable to sit, stand, or walk for a long period of time secondary to pain, AR 955, 960, 964, 969, 973, 980, 983, 996, there is nothing in the notes reflecting an inability to sit, stand, or walk for more than one hour in an 8-hour day. Similarly, there is nothing in Dr. Tuluca's treatment notes to support the opinion that Plaintiff could not lift or carry more than 10 pounds. In determining what weight to give Dr. Tuluca's opinion, the ALJ was entitled to rely on the absence of evidence supporting Dr. Tuluca's conclusions. See Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) ("The Secretary is entitled to rely not only on what the record says, but also on what it does not say.") (citation omitted). As pointed out by the ALJ, Dr. Tuluca's treatment note from a July 13, 2016, appointment with Plaintiff (the final one documented in the administrative record) reports that a lumbar spine injection provided Plaintiff with 75% relief. AR 38, 1010.
Plaintiff challenges the Commissioner's argument "that the ALJ properly rejected the physical limitations described for Mr. Ayala by treating physiatrist Dr. Tuluca and treating N.P. Doh because 'no progress notes. . .denoted an inability to sit, stand, or walk for more than one hour in a day or to lift more than ten pounds,' " on the ground that "the ALJ did not discount the opinions from Dr. Tuluca nor from N.P. Doh on this basis," and the Court "may not 'affirm an administrative action on grounds different from those considered by the agency.' " Pl.'s Reply Mem. of Law (Docket # 23) at 2 (citation omitted). However, the ALJ did state that Plaintiff "himself reported being able to lift and carry significantly more weight than Dr. Tuluca opined and his overall records do not document findings that support his other opined restrictions." AR 39 (emphasis added). Similarly, and as set forth below, the ALJ stated with respect to NP Doh's opinion, "Her record notes document that the claimant's treatment regimen provided pain relief and there is no documentation of objective findings supporting the numerous limitations that she opined." Id. (emphasis added). Thus, the lack of treatment notes supporting their opinions was a basis for the ALJ's decision to discount the opinions of Dr. Tuluca and NP Doh.
Furthermore, the ALJ did not err in deciding to discount Dr. Tuluca's opinion based on Plaintiff's own testimony regarding his functional abilities, see Salmini v. Comm'r of Soc. Sec., 371 F. App'x 109, 114 (2d Cir. 2010) ("Here . . . we see no error in the ALJ's general decision to adopt [the treating physician's] findings except insofar as plaintiff admitted to a greater degree of functionality than that found by [the treating physician].") (internal quotation marks omitted), or on Dr. Longshore's treatment notes. See Veino, 312 F.3d at 588 (treating physician opinions "need not be given controlling weight where they are contradicted by other substantial evidence in the record."); see also Caceres v. Colvin, No. 15 Civ. 4056 (PKC), 2016 WL 4734664, at *13 (S.D.N.Y. Sept. 9, 2016) (affirming ALJ's decision to give less weight to treating source's opinion due to conflict with other medical sources and plaintiff's testimony). More specifically, Plaintiff testified at his June 1, 2016, hearing that he could lift 30, 40, or 50 pounds while standing still and carry 15-20 pounds while walking. AR 68. Plaintiff testified to working as a bicycle messenger in 2014, which he stopped doing due to problems with his back, AR 59-60, but then he worked in catering, which he stopped doing due to lack of work. AR 60; see AR 426 (listing work in "Food deliveries stock" in March, 2014, and "catering services" in 2014). Dr. Longshore's treatment notes provide additional evidence that Plaintiff was working in construction (or otherwise working) in 2015 and 2016. See footnote 10, supra.
As noted by the Commissioner, and as set forth, infra, consultative examiner Dr. Sharon Revan noted examination findings that were inconsistent with the physical limitations opined by Dr. Tuluca. See Def.'s Mem. of Law in Supp. at 23.
On February 2, 2015, NP Doh completed a Spinal Impairment Questionnaire in which she opined that Plaintiff was unable to sit more than three hours in an 8-hour work day; unable to stand and/or walk more than two hours in an 8-hour work day; would have to get up from a seated position every one to two hours in an 8-hour work day for 15-20 minutes; would have to be able to sit with both legs elevated to waist level approximately every 10 minutes; could occasionally lift and occasionally carry up to 5 pounds; could not walk a block at a reasonable pace on rough or uneven surfaces and could not use standard public transportation, including climbing into and out of a bus; would need to use crutches; would occasionally during an 8-hour work day experience symptoms severe enough to interfere with Plaintiff's attention and concentration; would need to take breaks to rest lasting 20-30 minutes at unpredictable intervals during an 8-hour work day; and would likely miss work two to three times a month as a result of his impairment. AR 899-905.
See footnote 9, supra.
With respect to NP Doh's opinion, the ALJ stated as follows:
While I acknowledge that Ms. Doh had a treating relationship with the claimant, I accord her opinion little weight as it is not support [sic] by her treatment records. Her record notes document that the claimant's treatment regimen provided pain relief and there is no documentation of objective findings supporting the numerous limitations that she opined. Notably, while she checked off that it is recommended that the claimant use crutches, her treatment notes specifically documented that the claimant does not require any assistive devices. Moreover, the claimant himself testified that he can lift and carry a significantly greater amount and walk and sit more than that she opined.[] Thus, as the treatment notes and the claimant's own testimony do not support her opined limitations, Ms. Doh's opinion is accorded little weight.AR 39.
Plaintiff testified that he can walk a mile or a mile and a half before having to stop for 10 minutes to rest. AR 67. In terms of sitting., he testified that the position that made his back pain go away was sitting with his left leg stretched out in front of him. AR 66.
As noted above, the opinions of nurse practitioners like NP Doh are either not entitled to any particular weight or are entitled to some weight. Nevertheless, evidence from these "other sources" may be used "to show the severity of the individual's impairment(s) and how it affects the individual's ability to function." SSR 06-3p, 2006 WL 2329939, at *2. NP Doh's treatment notes span a period from February, 2014, to January, 2015. AR 832-81. Up through mid-August, 2014, the treatment notes report that Plaintiff was able to ambulate independently, although with a slow gait and mild difficulty, and did not need any assistive devices for ambulation, but starting at the end of August, 2014, through January, 2015, the treatment notes report, "Using SAC[] patient is able to ambulate independently, however with slow gait, difficulties in standing and walking without assistive devices is noted." See, e.g., AR 854. On NP Doh's Spinal Impairment Questionnaire she checked off that Plaintiff had an abnormal gait, noting, "Using SAC patient is able to ambulate independently, however with slow gait." AR 900. Thus, the ALJ's statement that NP Doh's treatment notes "specifically documented that the claimant does not require any assistive devices" is not entirely accurate as that applies to only part of the period during which NP Doh treated Plaintiff. Nonetheless, during the same period that NP Doh was reporting an abnormal gait and difficulties in standing and walking without assistive devices, she did not prescribe Plaintiff an assistive device. Moreover, the treatment notes for an annual physical exam conducted on July 9, 2014, by Dr. Ghazal Sinha of Urban Health Plan, Inc. reported that Plaintiff had both normal range of motion and no edema in his extremities, AR 929, and the treatment notes for a follow-up appointment with Dr. Sinha on August 25, 2014, reported that Plaintiff's gait was normal, his reflexes were intact, and his strength was intact. AR 926. Additionally, the treatment notes for Plaintiff's June 23, 2015, appointment with Dr. Tuluca report "no limp, ambulating with no assistive devices, and antalgic gait," AR 999, and this statement is echoed in throughout Dr. Tuluca's treatment notes up through the final note from July 13, 2016. AR 954, 959, 963, 968, 972, 976, 979, 986, 989, 993, 996, 1010. An ALJ does not err in giving little weight to a nurse practitioner's opinion where it is inconsistent with treatment records from a plaintiff's other medical providers. See Coger v. Comm'r of Soc. Sec., 335 F. Supp. 3d 427, 433-35 (W.D.N.Y. 2018) (upholding decision to accord "little weight" to nurse practitioner's opinions that were inconsistent with treatment records from the plaintiff's other primary care providers and physicians); see also Veino, 312 F.3d at 588 ("Genuine conflicts in the medical evidence are for the Commissioner to resolve."). Furthermore, there is nothing in NP Doh's treatment notes to support the opinion that Plaintiff could lift or carry no more than 5 pounds. The ALJ was entitled to rely on the absence of evidence supporting such conclusions. See Dumas, 712 F.2d at 1553. Finally, as noted above, the limitations opined by Dr. Tuluca, as well as NP Doh, are belied by Plaintiff's own testimony and other evidence in the record reflecting his abilities to engage in both part-time work and other activities. NP Doh's specific finding that Plaintiff could not use public transportation ran counter to evidence in the record from consultative examiners. See AR 802 (Plaintiff "took public transportation" to appointment with Dr. Kim; he "traveled approximately one hour"), 906 (Plaintiff took subway to appointment with Dr. Miller; he "traveled approximately four miles").
From October, 2012, through February, 2013, Plaintiff was treated by Dr. Henry Sardar, who was in the same medical practice. See AR 487-99, 882-93 (treatment notes state that Plaintiff was "seen by" Dr. Sardar, but at same time note that NP Doh was "provider").
According to Plaintiff, an "SAC" is a "standard auxiliary crutch." See Pl.'s Mem. of Law in Supp. at 4. According to the Commissioner, an "SAC" is a cane. See Def.'s Mem. of Law in Supp. at 14 ("NP Nukator-Doh noted that Ayala could ambulate independently with a slow gait by using a cane . . . .").
Plaintiff argues that the ALJ erred in not applying all of the factors required under the treating physician rule in weighing the opinions of Dr. Tuluca and NP Doh, Pl.'s Mem. of Law in Supp. at 21-22, but, as stated above, "slavish recitation of each and every factor" is not required where, as here, "the ALJ's reasoning and adherence to the regulation are clear." Atwater, 512 F. App'x at 70. The ALJ acknowledged Plaintiff's treating relationships with Dr. Tuluca and NP Doh, but she articulated reasons for discounting their opinions in accordance with the factors set forth in the regulation, such as the extent to which their opinions were inconsistent with their own treatment notes and the record as a whole, including the treatment records of other physicians and Plaintiff's own testimony.
Finally, Plaintiff takes issue with the ALJ's "conflicting conclusions" as to the opinion provided by consultative examiner Dr. Sharon Revan. Pl.'s Mem. of Law in Supp. at 22-23. Dr. Revan, who conducted a physical examination of Plaintiff on February 22, 2014, noted that Plaintiff's gait and stance were normal; he could perform a full squat; he used no assistive devices, needed no help changing for the examination or getting on and off the examination table, and was able to rise from a chair without difficulty, AR 799-800. Although Dr. Revan reported that Plaintiff suffered low back pain, she also reported that Plaintiff had full range of motion in his shoulders, elbows, forearms, hips, knees, and ankles bilaterally. AR 800. She noted that Plaintiff had full strength in his upper and lower extremities. AR 801. Dr. Revan opined that Plaintiff had mild to moderate limitations with sitting and lying down due to shortness of breath; unspecified limitations with sitting, walking, and standing due to his back pain; and mild limitations with activities of daily living. Id.
The ALJ stated that she accorded Dr. Revan's opinion "limited weight," noting,
Dr. Revan conducted a one-time examination of the claimant and did not have a treating relationship with her [sic]. Additionally, I note that her opinion is of limited use as she did not specify the claimant's specific functional abilities. As a mild limitation does not indicate the presence of a limitation that would significantly limit the claimant's functional abilities such that it would impact the residual functional capacity, Dr. Revan's broad opinion is generally consistent with the assigned residual functional capacity.AR 40. Plaintiff argues that the ALJ erred in finding that Dr. Revan's opinion was "generally consistent" with the ALJ's RFC determination since "a restriction in standing or walking would preclude light work, which generally requires standing most of the day (at least six hours) and the moderate restriction in sitting certainly does not support a finding the claimant could perform sedentary work, which requires sitting most of the day, at least six hours." Pl.'s Mem. of Law in Supp. at 22. However, courts have upheld RFC determinations of light work where medical opinions found that plaintiffs had mild to moderate limitations in sitting, standing, and walking. See, e.g., Bates v. Berryhill, 2:17-cv-03311 (ADS), 2018 WL 2198763, at *11 (E.D.N.Y. May 14, 2018) (collecting cases). Thus, the ALJ did not improperly weigh Dr. Revan's opinion.
Overall, I conclude, and respectfully recommend that Your Honor should conclude, that the ALJ did not improperly weigh the medical opinion evidence regarding Plaintiff's physical impairment.
Opinions Regarding Plaintiff's Mental Impairment
On June 10, 2016, Plaintiff's treating psychiatrist Dr. Longshore completed a Mental Impairment Questionnaire in which he opined that (1) in the category of understanding and memory, Plaintiff had moderate limitations on remembering locations and work-like procedures; mo derate-to-marked limitations on understanding and remembering one-to-two step instructions; and marked limitations on understanding and remembering detailed instructions; (2) in the category of concentration and persistence, Plaintiff had moderate-to-marked limitations in carrying out simple, one-to-two step instructions and sustaining ordinary routine without supervision; and marked limitations in carrying out detailed instructions, maintaining attention and concentration for extended periods, performing activities within a schedule and consistently being punctual, working in coordination with or near others without being distracted by them, making simple work-related decisions, completing a workday without interruptions from psychological symptoms, and performing at a consistent pace without rest periods of unreasonable length or frequency; (3) in the category of social interactions, Plaintiff had moderate-to-marked limitations in interacting appropriately with the public, asking simple questions or requesting assistance, accepting instructions and responding appropriately to criticism from supervisors, and getting along with coworkers or peers without distracting them; and marked limitations in maintaining socially appropriate behavior and adhering to basic standards of neatness; and (4) in the category of adaptation, Plaintiff had mo derate-to-marked limitations in traveling to unfamiliar places or using public transportation; and marked limitations in responding appropriately to workplace changes, being aware of hazards and taking appropriate precautions, setting realistic goals, and making plans independently. AR 949. Dr. Longshore also noted that Plaintiff was limited by an inability to cooperate with co-workers. AR 951. Dr. Longshore stated that Plaintiff's most frequent and severe symptoms were a depressed mood, anhedonia, insomnia, poor concentration, vigilance, and persistent fears, and noted that these symptoms were "seen consistently during mental status examinations." AR 950. He opined that Plaintiff would likely be absent from work more than three times a month as a result of his impairment. AR 951.
Anhedonia is "a psychological condition characterized by inability to experience pleasure in acts which normally produce it." https://www.merriam-webster.com/dictionary/anhedonia (last visited 3/11/2019).
The ALJ acknowledged Dr. Longshore's treating relationship with Plaintiff, but gave his opinion "little weight," explaining,
it is highly inconsistent with and not supported by her [sic] numerous treatment notes of record. In contrast to her [sic] opinion statement, Dr.
Longshore's treatment notes reflect a routine and conservative course of treatment that was largely effective in addressing the claimant's symptomology. On numerous occasions, the only documented mental status examination findings were that the claimant's affect was appropriate and of full range and that his thinking was logical and goal directed. Even considering the sporadic occasions where it was noted that the claimant was feeling dysphoric and anxious, Dr. Longshore's treatment notes are wholly unsupportive and inconsistent with the numerous limitations she [sic] opined.AR 41.
Although Dr. Longshore's first name is Carrol, both Plaintiff and the Commissioner refer to Dr. Longshore as "he."
As explained above, an ALJ may reject a treating physician's opinion when it conflicts with that physician's own treatment notes. Monroe, 676 F. App'x at 8. Dr. Longshore's treatment notes cover the period from June 24, 2015, to September 14, 2016. AR 1019-66. As pointed out by the Commissioner, Dr. Longshore's notes throughout the period stated that Plaintiff was alert and cooperative; was neatly dressed and groomed; had an appropriate affect; had logical and goal directed thinking; had good insight, judgment, and impulse control; and showed no signs of affective instability, psychosis, or suicidal ideation. See Def.'s Mem. of Law in Supp. at 26-27. An ALJ can also decline to give controlling weight to a treating physician's opinion where "contemporaneous treatment records," including the plaintiff's " 'largely normal mental status examinations on both treating and consultative evaluations,' did not support such severe limitations." Ortiz v. Comm'r of Soc. Sec., 15-CV-07602 (SN), 2017 WL 519260, at *8 (S.D.N.Y. Feb. 8, 2017); see also Pagan v. Colvin, 15 Civ. 3117 (HBP), 2016 WL 5468331, at *13 (S.D.N.Y. Sept. 29, 2016) ("[T]he ALJ provided good reasons for affording 'little weight' to [treating psychiatrist's] opinion, namely that it was unsupported by [treating psychiatrist's] own treatment notes, which showed that plaintiff had overall normal mental status examinations and there was general improvement in plaintiff's mood and anxiety over the course of treatment."). Although Plaintiff argues that "Dr. Longshore's opinions cannot be rejected based on Plaintiff's supposed 'conservative' treatment," Pl.'s Mem. of Law in Supp. at 25, the ALJ rejected Dr. Longshore's opinions not because he recommended a conservative course of treatment, but because Plaintiff's symptomology was effectively addressed by that treatment, i.e., his mental impairment was not as limiting as Dr. Longshore opined as a result of that treatment as reflected in the mental status examination findings in Dr. Longshore's own treatment notes. See Jackson v. Berryhill, Case # 17-CV-6268-FPG, 2018 WL 3306193, at *6 (W.D.N.Y. July 5, 2018) ("The ALJ did not discount [the treating physician's] opinions solely because she recommended conservative treatment; as discussed previously, he also discounted her opinions because they were inconsistent with the record evidence and based on Jackson's subjective complaints, which the ALJ found not credible."); Tuttle v. Berryhill, 6:17-cv-06419-MAT, 2018 WL 1932610, at *4 (W.D.N.Y. Apr. 24, 2018) ("While an ALJ may not 'discount[ ]' a treating physician's opinion 'merely because he [or she] has recommended a conservative treatment regimen,' Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008), a conservative course of treatment 'may, however, help to support the Commissioner's conclusion that the claimant is not disabled if that fact is accompanied by other substantial evidence in the record.' Id."); see also Schmidt v. Colvin, 15-CV-2692 (MKB), 2016 WL 4435218, at *12 (E.D.N.Y. Aug. 19, 2016) (upholding ALJ's decision to accord "little weight" to opinion of treating psychiatrist because it "was not supported by his own treatment records, which show that Plaintiff reported responding well to his medication, had repeatedly normal mental status examinations, and was consistently assessed as mentally stable"); Evans, 110 F. Supp. 3d at 536 (finding substantial evidence to support ALJ's decision to give "little weight" to opinion of treating therapist where plaintiff had a "conservative treatment history," and treatment records "consistently show[ed] stable mental examination findings and that [the plaintiff's] anxiety [was] controlled with Xanax") (internal quotation marks omitted).
As also pointed out by the Commissioner, there were relatively few abnormal mental status findings in Dr. Longshore's treatment notes. See Def.'s Mem. of Law in Supp. at 27.
Again Plaintiff argues that the ALJ erred in not applying all of the factors required under the treating physician rule in weighing Dr. Longshore's opinion, Pl.'s Mem. of Law in Supp. at 27, but again, "slavish recitation of each and every factor" is not required where, as here, "the ALJ's reasoning and adherence to the regulation are clear." Atwater, 512 F. App'x at 70. The ALJ acknowledged Plaintiff's treating relationship with Dr. Longshore, but she articulated reasons for discounting his opinion in accordance with the factors set forth in the regulation, most notably the extent to which his opinion was inconsistent with his own treatment notes.
Consultative examiner Lucy Kim, Psy. D., performed a psychiatric evaluation of Plaintiff on February 22, 2014. AR 802-10, 813-17. Dr. Kim noted that Plaintiff had been diagnosed with major depressive disorder, but had never been hospitalized for psychiatric reasons. AR 814. She noted that he had seen a therapist and a psychiatrist in prison about four months earlier. Id. Dr. Kim stated that Plaintiff had traveled on public transportation for about one hour in order to attend the appointment. Id. Plaintiff reported that he was able to dress, bathe, and groom himself; that he could do cooking, cleaning, laundry, and shopping himself; that he could manage his own money; and that he could take public transportation by himself. AR 816. Plaintiff said that he typically spent his days sleeping, going out with his girlfriend, and shopping. Id.
For reasons unknown, there are multiple copies of Dr. Kim's evaluation report in the administrative record.
Dr. Kim noted that with respect to Plaintiff's functioning at that point in time, Plaintiff reported that he had a hard time falling asleep; had a poor appetite; and experienced depressive symptomatology comprised of dysphoric moods, crying spells, hopelessness, irritability, psychomotor agitation, concentration difficulties, and social withdrawal ever since his mother passed away in December, 2013. AR 814. Plaintiff also reported feeling anxious in closed spaces, but denied any other symptoms of anxiety; he denied manic symptomatology and cognitive deficits; but reported seeing shadows and doors closing by themselves since December, 2013. AR 815.
Upon examination, Dr. Kim found, among other things, that Plaintiff was cooperative; his appearance was appropriate; his affect was of full range and appropriate in speech and thought content; his attention and concentration as well as his recent and remote memory skills were intact; his insight and judgment were fair. AR 815-16. Dr. Kim diagnosed Plaintiff with adjustment disorder. AR 816. She opined that there was "no evidence of limitations" in following and understanding simple directions and instructions; performing simple tasks independently; maintaining attention and concentration; being able to maintain a regular schedule; learning new tasks; performing complex tasks independently; making appropriate decisions; relating adequately with others; and appropriately dealing with stress. Id. Dr. Kim added that the "results of the examination appear to be consistent with psychiatric problems, but in itself, this does not appear to be significant enough to interfere with the claimant's ability to function on a daily basis." Id. Dr. Kim noted that Plaintiff would be able to manage his own funds. AR 817.
In according Dr. Kim's opinion "significant weight," the ALJ stated,
Dr. Kim conducted a comprehensive examination of the claimant and her opinion was consistent with the mental status examination, which documented overwhelmingly normal findings. While Dr. Kim's opinion is consistent with the decision's ultimate finding, taking into consideration all the medical evidence of record and the claimant's subjective complaints, I find that the claimant does have mental health related limitations that I have included in the residual functional capacity.AR 41. "[T]he opinions of consulting sources 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) (internal quotation marks and citation omitted). "Furthermore, a report by a consultative physician may constitute substantial evidence when the treating physician's opinion is inconsistent with other substantial evidence in the record." Vanterpool v. Colvin, No. 12-CV-8789 (VEC)(SN), 2014 WL 1979925, at *14 (S.D.N.Y. May 15, 2014) (citation omitted). Lastly, there is nothing improper in an ALJ affording great weight to the opinion of a consulting physician while incorporating additional limitations into his or her RFC finding. See Camille v. Colvin, 104 F. Supp. 3d 329, 343 (W.D.N.Y. 2015) ("Despite assigning [the consulting physician's] opinion great weight, ALJ Wakshul incorporated additional limitations in her RFC to accommodate Plaintiff's social functioning, concentration and memory, and anger and anxiety in accordance with Plaintiff's testimony."), aff'd, 652 F. App'x 25 (2d Cir. 2016). The ALJ did not err in according Dr. Kim's opinion "significant weight," even while not adopting it in its entirety, where the ALJ found it consistent with her overall conclusions derived from consideration of the record as a whole.
Consultative examiner John Laurence Miller, Ph.D., performed both a psychiatric evaluation and an intelligence evaluation of Plaintiff on November 25, 2015. AR 906-17. Dr. Miller reported that Plaintiff had traveled approximately four miles on the subway to attend the appointment. AR 906. Dr. Miller noted that Plaintiff had never been hospitalized for psychiatric reasons and was not currently receiving psychiatric treatment. Id. He stated that starting in 2005, Plaintiff had received psychotherapy and medication management for six months at a private office in Manhattan. Id. Plaintiff reported that he dressed, bathed, and groomed himself, shopped, managed money, and took public transportation. AR 908. Plaintiff stated that his shelter did the cooking, cleaning, and laundry. Id. Plaintiff said that he had a few friends and got along well with his family; he reported that his daily activities included listening to the radio. Id.
Dr. Miller noted that with respect to Plaintiff's functioning at that point in time, Plaintiff reported that he had a hard time falling asleep; had a normal appetite; and experienced depressive symptomatology beginning in 2013 when his mother died comprised of dysphoric moods, crying spells, feelings of hopelessness, concentration difficulties, and irritability. AR 906. Plaintiff had not had any suicidal or homicidal ideation within the prior 30 days. Id. Plaintiff also reported anxiety-related symptomatology comprised of occasional flashbacks, nightmares, and fearfulness of the police and of death. Id. Plaintiff said he had experiences that might be panic attacks, but Dr. Miller noted that from Plaintiff's description, they sounded like asthma attacks. AR 906-07. Plaintiff denied manic symptomatology and cognitive symptomology and deficits; but he reported thought disorder symptomatology comprised of paranoid ideation, causing Plaintiff to believe that people were following him, and visual hallucinations in which he saw clouds and shadows. AR 907.
Symptomology is synonymous with symptomatology. See https://www.collinsdic-tionary.com/us/dictionary/english/symptomatology (last visited 3/12/2019).
Upon examination, Dr. Miller found that Plaintiff's demeanor was defensive and his social skills were poor as a result. Id. Dr. Miller noted that Plaintiff's dress was appropriate, he was well-groomed, his posture and motor behavior were normal, and his eye contact was appropriate. Id. He found that Plaintiff's speech was fluent and clear, and his expressive and receptive language was adequate; his thought process was coherent and goal directed with no evidence of hallucinations, delusions, or paranoia; his affect was agitated; his mood was euthymic; his attention and concentration as well as his recent and remote memory skills were intact; his intellectual functioning appeared to be below average, but his general fund of information appeared to be appropriate; and his insight and judgment were fair. AR 907-08. Dr. Miller noted that Plaintiff had trouble coping with stress. AR 908.
Dr. Miller diagnosed Plaintiff with major depressive disorder, recurrent episodes, with psychotic features and anxious distress, and stated that Plaintiff's prognosis was good so long as he received treatment. AR 909. Dr. Miller opined that Plaintiff's ability to deal appropriately with stress appears to be markedly limited; to relate adequately with others was moderately limited; to learn new tasks and maintain a regular schedule was mildly limited, and that Plaintiff had no limitation in his ability to follow and understand simple directions and instructions, perform simple tasks independently, maintain attention and concentration, perform complex tasks independently, or make appropriate decisions. AR 908. Dr. Miller noted that Plaintiff's difficulties were "caused by psychiatric problems," and added that the "results of the evaluation appear to be consistent with psychiatric problems, and this may significantly interfere with the claimant's ability to function on a daily basis." Id. Dr. Miller noted that Plaintiff would be able to manage his own funds. AR 909.
Dr. Miller also performed an intelligence evaluation in which he determined that Plaintiff had a full-scale IQ of 84. AR 911-12. Dr. Miller noted that the IQ test results were "consistent with below-average intellectual functioning," but that "[t]he weakness was not clinically significant and not indicative of impairment," and "[p]erformance was relatively strong on measures of visual and spatial reasoning." AR 912.
The ALJ decided to accord Dr. Miller's opinion "little weight" because
Dr. Miller conducted a one-time assessment of the claimant and did not have a longitudinal perspective on his functioning. While Dr. Miller noted that the claimant's social skills were poor due to defensiveness, the longitudinal records from Dr. Longhorn [sic] do not indicate that this was a persistent problem, nor do her [sic] treatment notes document any objective findings indicating that the claimant has difficulty dealing with others or that he is markedly limited in his ability to deal with stress. Thus, as the claimant's mental health treatment records are unsupportive, Dr. Miller's opinion is accorded little weight.AR 42. Plaintiff does not make any specific arguments concerning the weight assigned to Dr. Miller's opinion, only claiming that it was supported by Dr. Longshore's treatment notes, but, as with Dr. Longshore's opinion, the ALJ was entitled to reject Dr. Miller's opinion based on her determination that it was inconsistent with those treatment notes. See Veino, 312 F.3d at 588 ("Genuine conflicts in the medical evidence are for the Commissioner to resolve."); cf. Smith, 17 F. Supp. 3d at 268 ("[T]he opinions of consulting sources may constitute substantial evidence if they are consistent with the record as a whole.") (internal quotation marks and citation omitted).
Overall, I conclude, and respectfully recommend that Your Honor should conclude, that the ALJ did not improperly weigh the medical opinion evidence regarding Plaintiff's mental impairment.
RFC Determination
The ALJ determined that Plaintiff had the RFC "to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with additional mental health related limitations." AR 36. She added that Plaintiff "is able to lift up to 20 pounds at a time, frequently lift or carry objects weighing up to 10 pounds, and stand, walk and sit for approximately six hours each in an eight-hour workday," except he "is limited to performing simple and repetitive tasks but not at an assembly line or production rate." Id. Plaintiff challenges the ALJ's determination on the ground that the ALJ "did not cite to any specific medical facts or persuasive non-medical evidence that supports either the physical or mental limitations found" for Plaintiff. Pl.'s Mem. of Law in Supp. at 28 (emphasis in original). The Commissioner contends that substantial evidence supports the RFC determination. Def.'s Mem. of Law in Supp. at 29-31.
"A finding as to RFC will be upheld on review when there is substantial evidence in the record to support the requirements listed in the regulations." Jiminez v. Astrue, No. 12-Civ-3477 (GWG), 2013 WL 4400533, at *12 (S.D.N.Y. Aug. 14, 2013) (internal quotation marks and citation omitted). Morever, where "the evidence of record permits [the court] to glean the rationale of an ALJ's decision, [the court] do[es] not require that he [or she] have mentioned every item of testimony presented to him [or her] or have explained why he [or she] considered particular evidence unpersuasive or insufficient to lead him [or her] to a conclusion of disability." Mongeur, 722 F.2d at 1040. Here, contrary to Plaintiff's assertion, the ALJ did include an extensive and detailed discussion of the medical and non-medical evidence in the record, including radiological test results, treatment records, consultative examination reports, medical opinion evidence, and Plaintiff's own testimony, as well as how she evaluated such evidence, in arriving at her determination of Plaintiff's RFC. See AR 36-42. As explained above, the ALJ properly weighed the medical opinion evidence in the record from both treating and non-treating sources and, as will be explained below, properly evaluated Plaintiff's testimony.
Plaintiff further challenges the ALJ's RFC finding on the ground that it did not correspond with the opinions of any medical sources with respect to either his physical or mental limitations, but "[a]lthough the ALJ's conclusion may not perfectly correspond with any of the opinions of medical sources cited in his [or her] decision, he [or she] was entitled to weigh all of the evidence available to make an RFC finding that was consistent with the record as a whole." Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013); see also Trepanier v. Comm'r of Soc. Sec., No. 17-3684-cv, 2018 WL 5919906, at *4 (2d Cir. Nov. 13, 2018) ("Even where the ALJ's determination does not perfectly correspond with any of the opinions of medical sources cited in his decision, however, the ALJ was entitled to weigh all of the evidence available to make a residual functional capacity finding that was consistent with the record as a whole.") (citing Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998) ("It is for the SSA, and not this court, to weigh the conflicting evidence in the record.")). Thus, this is not a basis for setting aside the ALJ's RFC finding.
Accordingly, I conclude, and respectfully recommend that Your Honor should conclude, that the ALJ properly determined Plaintiff's RFC and that the ALJ's RFC determination is supported by substantial evidence.
B. Evaluation of Plaintiff's Testimony
Plaintiff takes issue with the ALJ's evaluation of Plaintiff's testimony, arguing that she "failed to give sufficient reasons" for discounting his testimony and "placed undue emphasis" on his activities of daily living and "failed attempts to return to work on a part-time basis." Pl.'s Mem. of Law in Supp. at 28-32. The Commissioner contends that the ALJ's evaluation of Plaintiff's testimony is supported by substantial evidence. Def.'s Mem. of Law in Supp. at 31-33.
In determining whether a claimant is disabled, the ALJ necessarily takes "the claimant's reports of pain and other limitations into account," and to aid in this analysis, the regulations set forth a two-step process that is used to assess the claimant's credibility. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). First, the ALJ determines whether a claimant suffers from a "medically determinable impairment that could reasonably be expected to produce [his or her] symptoms." 20 C.F.R. §§ 404.1529(b), 416.929(b). If so, then second, the ALJ considers "the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence" of record. 20 C.F.R. §§ 404.1529(a), 416.929(a).
The ALJ "is not required to accept the claimant's subjective complaints without question; he [or she] may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record." Genier, 606 F.3d at 49 (citation omitted). In doing so, the regulations require the ALJ to consider all available evidence, including objective medical evidence as well as other information regarding the claimant's daily activities; the location, duration, frequency, and intensity of the symptoms; any precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medications taken; treatment other than medication; any measures used to relieve the symptoms; and other factors concerning functional limitations and restrictions due to the symptoms. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii). "It is the role of the Commissioner, not the reviewing court, 'to resolve evidentiary conflicts and to appraise the credibility of witnesses,' including with respect to the severity of a claimant's symptoms." Cichocki, 534 F. App'x at 75 (quoting Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)). An ALJ's credibility findings are entitled to deference by a reviewing court. See Tejada, 167 F.3d at 775-76 (upholding ALJ's credibility determination, citing with approval Pascariello v. Heckler, 621 F. Supp. 1032, 1036 (S.D.N.Y.1985), in which the district court noted "that after weighing objective medical evidence, the claimant's demeanor, and other indicia of credibility, the ALJ, in resolving conflicting evidence, may decide to discredit the claimant's subjective estimation of the degree of impairment."). "If the [Commissioner's] findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount a claimant's subjective complaints of pain." Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (citations omitted).
Here, the ALJ's decision explains at length the basis for her conclusion that Plaintiff's "statements concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely consistent with the medical evidence and other evidence in the record." AR 37-42. A court has "no reason to second-guess the credibility finding in [a] case where the ALJ identified specific record-based reasons for his [or her] ruling." Stanton v. Astrue, 370 F. App'x 231, 234 (2d Cir. 2010). The ALJ properly considered and noted the discrepancy between treatment records and consultative examination reports and Plaintiff's subjective complaints. She also properly considered and noted the discrepancy between Plaintiff's subjective complaints and his activities of daily living, ability to engage in part-time work, positive response to a conservative course of treatment, and his own hearing testimony as to his abilities.
Although Plaintiff claims that the ALJ "placed undue emphasis" on his activities of daily living, the regulations provide for consideration of a claimant's activities of daily living, 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i), and "[a]n ALJ is entitled to take a plaintiff's activities of daily living into account in making a credibility determination." Andrews v. Berryhill, 17-CV-6368 (MAT), 2018 WL 2088064, at *6 (W.D.N.Y. May 4, 2018) (internal quotation marks and citation omitted). Similarly, the ALJ was entitled to consider evidence that Plaintiff had engaged in part-time work at various points during the relevant period in assessing Plaintiff's credibility. "The issue is not whether [the] plaintiff's limited ability to undertake normal daily activities demonstrates [his or] her ability to work. Rather, the issue is whether the ALJ properly discounted [the] plaintiff's testimony regarding [his or] her symptoms to the extent that it is inconsistent with other evidence." Id. (internal quotation marks, brackets, and citation omitted) (noting that plaintiff's testimony "that she is able to do her laundry, make simple meals, sweep floors, wash dishes, and occasionally drive . . ., coupled with her ability to maintain a work schedule and care for her two children, comport with the ALJ's RFC," and determining that "the ALJ did not err in his finding that Plaintiff was not entirely credible concerning her statements of the intensity, persistence, and limiting effects of her symptoms"); see also, e.g., Drake v. Astrue, 443 F. App'x 653, 657 (2d Cir. 2011) (ALJ's credibility determination "was supported by evidence that plaintiff had the ability to cook and care for herself, operate a car, complete household chores, care for her son, and run errands"); Bagley-Reed v. Colvin, 15 Civ. 3851 (JCF), 2016 WL 2605201, at *7 (S.D.N.Y. May 3, 2016) (ALJ's credibility determination supported by plaintiff's statements during consultative examinations that "she could perform all activities of personal care and daily living and . . . was able to dress, bathe, and groom herself and that "she cooked and prepared food seven times a week, cleaned twice a week, shopped once a week, took public transportation independently, and went to the park").
Although Plaintiff contends that the ALJ "erred by finding [Plaintiff's] 'conservative' treatment conflicts with a finding of disability," Pl.'s Mem. of Law in Supp. at 30, "[c]ourts in this Circuit routinely uphold credibility determinations in which the ALJ finds a claimant's statements about their symptoms not credible based, inter alia, on a conservative treatment record." Dixon v. Berryhill, 17 Civ. 0334 (AJP), 2017 WL 3172849, at *16 n.33 (S.D.N.Y. July 26, 2017) (internal quotation marks and citation omitted) (collecting cases). Lastly, an ALJ may consider that a plaintiff has "admitted to a greater degree of functionality" than that found by his or her treating physician in arriving at a credibility determination. See Salmini, 371 F. App'x at 113 ("The evidence before the ALJ regarding plaintiff's ability to sit, stand, and move about is likewise inconsistent with the breadth of plaintiff's allegations, and, as the ALJ correctly noted, plaintiff himself admitted to 'a greater degree of functionality than that found by Dr. Wasco,' the treating physician."). Thus, the ALJ did not err in considering that Plaintiff testified to being able to lift and carry more weight and walk to a greater extent than his treating sources opined.
In sum, I conclude, and respectfully recommend that Your Honor should conclude, that there is substantial evidence to support the ALJ's determination that Plaintiff's statements regarding the intensity, persistence, and functionally limiting effects of his symptoms were not credible.
C. New Medical Evidence Presented to the Appeals Council
Plaintiff claims that the Appeals Council failed to properly consider new evidence that he submitted, namely the Mental Impairment Questionnaire and evaluation report from Ronald Sherman, Ph.D., dated June 30, 2017, and the case should therefore be remanded for its consideration. Pl.'s Mem. of Law in Supp. at 32-34. In addressing this evidence, the Appeals Council stated that the ALJ decided Plaintiff's case through November 3, 2016, and "[t]his additional evidence does not relate to the period at issue. Therefore, it does not affect the decision about whether you were disabled beginning on or before November 3, 2016." AR 2.
"Under the Commissioner's regulations, the Appeals Council will consider new and material evidence only if it relates to the relevant period on or before the date of the ALJ's decision." Suttles v. Colvin, 654 F. App'x 44, 47 (2d Cir. 2016) (citing Perez v. Chater, 77 F.3d 41, 44 (2d Cir. 1996)). Evidence is new if it is "not merely cumulative of what is already in the record." Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (internal quotation marks and citation omitted). "Evidence is material if it is relevant to the claimant's condition during the time period for which benefits were denied, and there is a reasonable possibility that the new evidence would have influenced the ALJ to decide the claimant's application differently." Suttles, 654 F. App'x at 47 (citing Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991)).
Plaintiff asserts that the evidence from Dr. Sherman is new "as it was not before the ALJ," Pl.'s Mem. of Law in Supp. at 33, but the Commissioner contends that it was not new "because it was cumulative of evidence already in the record." Def.'s Mem. of Law in Supp. at 33. Indeed, the limitations noted on Dr. Sherman's Mental Impairment Questionnaire are substantially the same as those noted on Dr. Longshore's Mental Impairment Questionnaire. Compare AR 11 with AR 949. Dr. Sherman noted that Plaintiff's "file was carefully reviewed," and his assessment was based on the single evaluation interview that he conducted with Plaintiff "coupled with the history provided for evaluation." AR 14. Thus, Dr. Sherman's assessment was based on previously available information and records. See AR 480-81 ("Based upon his review of the claimant's treatment record, Dr. Sherman concluded the symptoms and limitations detailed within his questionnaire apply as far back as November 24, 2012.") (emphasis added). Moreover, Dr. Sherman's evaluation is substantially similar to Dr. Longshore's opinions, compare AR 8-16 with AR 945-51, and includes findings documented in both Dr. Miller's evaluation and Dr. Longshore's treatment notes, as pointed out by Plaintiff in his motion papers. See Pl.'s Mem. of Law in Supp. at 23 (noting that Dr. Miller's findings included "a defensive demeanor, poor social skills, an agitated affect, and below average intellectual functioning," and that Dr. Longshore's treatment records "documented dysphoric, anxious, and/or depressed moods, tearfulness, irritable and labile affect, passive suicidal ideation," providing citations to the administrative record).
Plaintiff argues that the evidence from Dr. Sherman is material because his opinions "address Plaintiff's functioning during the relevant period at issue," and therefore, "may well lead to a different decision by the ALJ." Id. at 33. The Commissioner claims that because Dr. Sherman did not meet Plaintiff until June, 2017, which is over seven months after the ALJ issued her decision, his opinion did not relate to the relevant period, since "the only meaningful insight he could possibly provide into the severity of [Plaintiff's] condition during that period would have been gleaned by reviewing the same records assessed by the ALJ." Def.'s Mem. of Law in Supp. at 34. Moreover, the Commissioner asserts that "[e]ven if this Court were to find that Dr. Sherman's opinion related to the relevant period, the Appeals Council's decision should be upheld because the evidence did not have a reasonable possibility of changing the ALJ's decision." Id. at 34-35.
As the Commissioner points out, Plaintiff "fails to specify which aspects of [Dr. Sherman's opinions and findings] could have persuaded the ALJ to reach a different conclusion." Id. at 35. As noted above, Dr. Sherman's findings and opinion are based in part on the same treatment records reviewed by the ALJ and are not substantially different from the findings and opinions of other medical sources reviewed by the ALJ. Thus, even if the Court assumes that the evidence from Dr. Sherman is new and relates to the relevant period, and that the Appeals Council therefore erred in failing to consider it, there is still no reasonable possibility that this evidence would have caused the ALJ to decide the case differently. See Suttles, 654 F. App'x at 47 ("[A]ssuming that the Appeals Council erred, there was nevertheless no reasonable possibility that consideration of Dr. Liotta's report would have altered the ALJ's decision, because the evidence that Dr. Liotta adduced was not materially different from that which was already before the ALJ and the vocational expert when they reached their conclusions.").
In sum, the evidence from Dr. Sherman is neither new nor material. Accordingly, I conclude, and respectfully recommend that Your Honor should conclude, that the Appeals Council's decision not to consider this evidence does not warrant a remand.
CONCLUSION
For the foregoing reasons, I conclude, and respectfully recommend that Your Honor should conclude, that Plaintiff's motion for judgment on the pleadings (Docket # 12) should be denied, the Commissioner's cross-motion for judgment on the pleadings (Docket # 21) should be granted, and the case should be dismissed.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1), as amended, and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days, plus an additional three (3) days, pursuant to Fed. R. Civ. P. 6(d), or a total of seventeen (17) days, see Fed. R. Civ. P. 6(a), from the date hereof, to file written objections to this Report and Recommendation. Such objections, if any, shall be filed with the Clerk of Court with extra copies delivered to the chambers of The Honorable Vincent L. Briccetti at the United States Courthouse, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at the United States Courthouse, 300 Quarropas Street, White Plains, New York, 10601.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Briccetti. Dated: March 12, 2019
White Plains, New York
Respectfully submitted,
/s/_________
Lisa Margaret Smith
United States Magistrate Judge
Southern District of New York