Opinion
20-CV-9383 (VSB) (RWL)
03-30-2022
NANCY COTTO, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, [1] Defendant.
REPORT AND RECOMMENDATION TO HON. VERNON S. BRODERICK: SOCIAL SECURITY APPEAL
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE
Nancy Cotto (“Plaintiff” or “Cotto”), proceeding pro se, commenced this action pursuant to 42 U.S.C. § 405(g), challenging the decision by the Commissioner of Social Security (the “Commissioner”) denying her application for supplemental security income (“SSI”) under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3). The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure on the basis that the Commissioner's decision is supported by substantial evidence. The Court agrees and recommends that the Commissioner's motion be granted and judgment be entered in favor of the Defendant.
PROCEDURAL HISTORY
On January 9, 2018, Cotto filed an application for SSI with the Social Security Administration (the “Agency”), alleging disability beginning December 29, 2016. (R. 13145.) On March 7, 2018, her claim was denied. (R. 70-81.) Cotto requested a hearing before an Administrative Law Judge (“ALJ”). (R. 83-85.) On August 8, 2019, Cotto appeared via video with her attorney, and testified before ALJ Martha Bower. (R. 36-57.) The ALJ issued an unfavorable decision on October 2, 2019, finding Cotto not disabled and denying her claim for benefits. (R. 7-24.) On September 14, 2020, the Appeals Council denied Cotto's request for review, making the ALJ's decision the final decision of the Commissioner. (R. 1-6.) Cotto filed this action on November 9, 2020. (Dkt. 2.)
“R.” refers to the administrative record filed on June 18, 2021 (Dkt. 18).
On August 17, 2021, the Commissioner filed for judgment on the pleadings. (Dkt. 20.) Cotto's response to the motion was due by October 16, 2021. Cotto, however, did not file any response. The Court issued an order on January 3, 2022, giving Cotto a final opportunity to respond by January 17, 2022. (Dkt. 22.) The order warned Cotto that failure to respond could result in dismissal of the case for failure to prosecute. Cotto nevertheless did not respond and has not followed up on this action in any way.
FACTUAL BACKGROUND
At the time of her application, Cotto was 59 years old. (See R. 54.) She completed the ninth grade and last worked in January 2018 at a day treatment program, where she performed intake duties. (R. 39-40, 53.) Cotto alleges that she was disabled due to human immunodeficiency virus (“HIV”), bipolar disorder, anxiety, hepatitis C, pancreatitis, and seizures. (R. 155.) Her medical history is set forth in detail by the Commissioner. (Def. Mem. at 2-7.) Upon review of the Record, the Court finds the Commissioner's rendition to be accurate and incorporates it herein by reference.
“Def. Mem.” refers to the Memorandum Of Law In Support Of The Commissioner's Motion For Judgment On The Pleadings filed on August 17, 2021 (Dkt. 21).
A. Medical Summary
In brief, during the relevant period, Cotto was assessed as having various afflictions, such as HIV, bipolar disorder, asthma, hypertension, and seizure disorder. She received a variety of prescriptions but generally reported no side effects. (E.g., R. 544-545.) Cotto abused cocaine and was diagnosed with opioid dependence, for which she received Suboxone. (E.g., R. 545, 583.) In August 2017, she was admitted to a hospital for altered mental status attributed to a cocaine-induced seizure. (R. 874.) Cotto occasionally reported experiencing delusions or hallucinations. (E.g., R. 544, 556-58.)
The relevant period begins January 2018, not December 2016, when Cotto claims as the onset of disability. That is because SSI benefits are paid for the period starting the month after the month in which a claimant files her application. See 20 C.F.R. 416.501.
In September 2018, Cotto was diagnosed with some vertebral narrowing and slippage. (R. 435.) The following month, however, her physical exam was unremarkable, and she exhibited full range of motion in all her extremities as she did at subsequent exams. (R. 524-25, 533-34, 862-63.) In early 2019, Cotto complained of blurred vision. Upon examination, she was determined to have cataracts but deferred treating them. (E.g., R. 502.) Her vision was otherwise 20/30. (R. 510.)
In March and May 2019, Cotto was seen by Dr. Roslynn Glicksman for routine HIV care and drug refills. During those visits, Cotto had “no complaints.” (R. 515, 86265.)
B. Medical Opinion Evidence
The record includes statements of opinion from two State agency physicians, two treating nurse practitioners, and one treating doctor.
On February 21, 2018, State agency physician S. Padmaraju reviewed the medical evidence of record and opined that Cotto did not have a severe physical impairment on account of her HIV, hypertension, seizure disorder, or asthma. (R. 6162.) On March 5, 2018, State agency psychologist Dr. D. Brown reviewed the available medical evidence and opined that Cotto did not have a severe mental impairment on account of her bipolar disorder. (R. 62- 63, 414-15.) Dr. Brown also opined that Cotto had no limitations in her ability to understand, remember or apply information, interact with others, or adapt or manage herself, and only a mild limitation in her ability to concentrate, persist or maintain pace. (R. 63.)
In an undated form, a treating nurse practitioner, NP Liu, requested home care assistance for Cotto due to HIV, asthma, and seizures. (R. 503-08.) NP Liu stated that Cotto had reduced exercise tolerance of two city blocks and two flights of stairs. (R. 504.) She also stated that Cotto was forgetful and needed reminders to take her medications. (R. 504.)
On August 19, 2019, just three months after having noted Cotto as having no complaints, and having full range of extremity motion, normal gait, and normal motor strength (R. 862-65), Dr. Glicksman assessed that Cotto was only able to lift and/or carry less than ten pounds and sit for a total of two hours in an eight-hour workday due to arthritis, spina bifida occulta in her lower back, osteoporosis, and chronic pain in her legs and hands. (R. 880-82.) Dr. Glicksman also assessed that Cotto could never climb, stoop, kneel, balance, crouch, or crawl. (R. 881.) She further assessed that Cotto had environmental limitations and was limited in her ability to reach, handle, push and pull due to stiff hands, fatigue, asthma, and sensitivity to changes in temperature. (R. 882.)
On August 21, 2019, NP Belinda Kotin assessed that Cotto had marked to extreme limitations in her ability to perform the mental aspects of work and would miss work four days per week due to her impairments and/or treatment. (R. 883-85.) NP Kotin also remarked that Cotto experienced medication side effects of drowsiness, slow thinking, cognitive slowing, and dizziness. (R. 884.)
C. The August 8, 2019 Hearing
Cotto testified that she lived alone in a studio apartment and was able to cook and shop with a friend, who helped carry items for her. (R. 40, 46-47.) She spent her days going to doctor's appointments, watching television, and visiting her mother and grandchildren. (R. 40-41, 46, 50-51.) She traveled to Buffalo for a couple months to babysit her two-and-a-half-year-old grandson. (R. 42-43.) She was able to use public transportation, albeit with anxiety. (R. 42, 47.)
Cotto reported difficulty sleeping at night; hearing voices “maybe every three months”; having hallucinations once per month; and having had four seizures at unspecified dates that resulted in her being taken to the hospital by ambulance. (R. 4748.) She testified that she saw her psychiatrist at Housing Works twice per month (R. 41), although she sometimes forgot to take her medication. (R. 44.) Cotto reported taking Depakote for seizures (R. 49, 51), and Suboxone the year prior to the hearing after participating in a methadone program for prior heroin abuse. (R. 44-45.)
Vocational expert (“VE”) Kenneth Smith testified that Cotto's past work as a social service aide was skilled and “light” in exertional nature. (R. 52-53.) The ALJ asked the VE to consider a hypothetical individual with Cotto's vocational profile and who had no exertional limitations, but should not use ropes, ladders or scaffolds or be exposed to hazards such as unprotected heights or dangerous equipment. (R. 53.) The VE testified that such an individual could perform Cotto's past work as a social service aide. (Id.) When the ALJ modified the hypothetical to include limitations in concentration, persistence or pace that were consistent with the ability to understand, remember and carry out only simple tasks, the VE testified that such an individual would not be able to perform Cotto's past relevant work. (R. 53-54.)
The VE testified, however, that such a hypothetical individual could perform other work that existed in sufficient numbers in the national economy, such as the unskilled light jobs of hand packager, laundry laborer, and stocker. (R. 54.) When the ALJ further modified the hypothetical to require work involving only object-oriented tasks with only occasional work-related interactions with co-workers, supervisors, and the general public, the VE testified that, while Cotto's past work would remain precluded, such a hypothetical worker could perform the three jobs. (R. 55.)
D. The ALJ's Decision
The ALJ followed the requisite five-step sequential analysis established by regulation. See 20 C.F.R. § 416.920; DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998). At step one, the ALJ found that Cotto had not engaged in substantial gainful activity during the relevant period starting January 9, 2018, the date of her application. (R. 12.) At step two, the ALJ determined that Cotto's seizure disorder was a severe impairment during the relevant period. (R. 12.) The ALJ found that Cotto's HIV, asthma, low back pain, hypertension, and blurry vision were not severe impairments. (R. 12-13.) At step three, the ALJ determined that Cotto's impairments, either singly or in combination, did not meet or medically equal the criteria of a “listed” impairment set forth at 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 15.)
Next, the ALJ found that Cotto had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels except that she could not climb ropes, ladders or scaffolds, or be exposed to hazards, such as unprotected heights or dangerous equipment. (R. 15.) At step five, the ALJ determined that Cotto was unable to perform her past relevant work as a social services aide (R. 17-18), but found that Cotto could perform other work that existed in significant numbers in the national economy. (R. 18-19). Accordingly, the ALJ found that Cotto was not disabled and denied her claim. (R. 19.)
In the course of her decision, the ALJ evaluated the medical opinions of record. In short, the ALJ found the opinion of Dr. Glicksman “not persuasive” because it was “completely unsupported by any of the medical records.” (R. 17.) Similarly, the ALJ found the opinion of NP Kotin unsupported by the medical record and therefore “not persuasive.” (R. 17.) In contrast, the ALJ found the opinions of the State agency medical and psychological consultants to be persuasive insofar as they determined that Cotto's HIV and bipolar disorder were not severe. (R. 17.) The ALJ's decision does not address NP Liu's undated home-care assistance request.
The ALJ also assessed Cotto's description of the severity of her symptoms and found them unsupported by the medical evidence. More specifically, “the claimant's 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.” (R. 16.)
DISCUSSION
The Commissioner's motion should be granted. As a procedural matter, Cotto failed to oppose the Commissioner's motion and has failed to prosecute her case. Nonetheless, although the case could be dismissed for failure to prosecute, judgment on the merits is warranted as the Commissioner's decision is supported by substantial evidence.
A. Cotto Failed To Prosecute Her Case
The Court of Appeals has advised district courts to be hesitant to dismiss pro se cases based on procedural lapses. See Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (citing Lucas v. Miles, 84 F.3d 532 (2d Cir. 1996)). To determine whether dismissal for failure to prosecute is appropriate, the Court of Appeals has identified five factors to consider: (1) the duration of the plaintiff's failure to comply with the court order; (2) whether the plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court's interest in managing its docket with plaintiff's interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal. Id.
Here, all factors favor dismissal. Cotto has taken no action in this case since filing it in November 2020, more than a year ago. Courts have dismissed for failure to prosecute based on periods of similar magnitude. See, e.g., Jeremy R.S. v. Commissioner of Social Security, No. 17-CV-714, 2019 WL 529681, at *2 (N.D.N.Y. Feb. 11, 2019) (plaintiff failed to file brief or other filing for one year); Lomack v. Commissioner of Social Security, No. 18-CV-6083, 2019 WL 132741, at *2 (W.D.N.Y. Jan. 8, 2019) (plaintiff failed to respond to motion or court order for four to five months); Bonnette v. Commissioner of Social Security, No. 16-CV-6398, 2018 WL 6173434, at *2 (E.D.N.Y. Nov. 26, 2018) (plaintiff's failure to file a brief delayed case by nearly one year); Gonzalez v. Commissioner of Social Security, No. 09-CV-10179, 2011 WL 2207574 (S.D.N.Y. June 2, 2011) (plaintiff failed to respond to defendant's motion for ten months). Cotto was expressly warned by court order that failure to file any opposition could result in dismissal for failure to prosecute. (Dkt. 22.) Despite being offered an extended deadline, Cotto took no further action.
As for the remaining factors, the delay has prejudiced both Defendant and the Court. See Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 668 (2d Cir. 1980) (“Burgeoning filings and crowded calendars have shorn courts of the luxury of tolerating procrastination”); Lomack, 2019 WL 132741 at *4 (finding prejudice to Commissioner from delay of case because the “Social Security Administration is significantly overburdened with applications and appeals”). And there are no lesser sanctions -such as a monetary fine - that are viable here given that Cotto is proceeding in forma pauperis and pro se. See Coss v. Sullivan County Jail Administrator, 171 F.R.D. 68, 73 (S.D.N.Y. 1997) (“since Coss has proceeded in forma pauperis and pro se, the Court does not find the imposition of monetary sanctions to be an adequate penalty”). The case thus may be dismissed for failure to prosecute.
But regardless of Cotto's failure to prosecute, the Commissioner's motion should be granted on the merits as explained in the following section.
B. The Commissioner's Decision Is Supported By Substantial Evidence
1. Standard Of Review
A United States District Court may affirm, modify, or reverse (with or without remand) a final decision of the Commissioner. 42 U.S.C. § 405(g); Skrodzki v. Commissioner Of Social Security Administration, 693 Fed.Appx. 29, 29 (2d Cir. 2017) (summary order). The inquiry is “whether the correct legal standards were applied and whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004); see also Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (same).
“‘Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.'” Douglass v. Astrue, 496 Fed.Appx. 154, 156 (2d Cir. 2012) (quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (remanding for noncompliance with regulation, which resulted in incomplete factual findings)). Courts review de novo whether the correct legal principles were applied and whether the legal conclusions made by the Administrative Law Judge (“ALJ”) were based on those principles. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (reversing where the court could not “ascertain whether [the ALJ] applied the correct legal principles ... in assessing [plaintiff's] eligibility for disability benefits”); Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (reversing where the Commissioner's decision “was not in conformity with the regulations promulgated under the Social Security Act”); Thomas v. Astrue, 674 F.Supp.2d 507, 510-11 (S.D.N.Y. 2009) (reversing for legal error after de novo consideration). Here, the Court has reviewed the legal principles applied by the ALJ and finds no error.
On January 18, 2017, the Agency published revisions to its regulations governing the evaluation of medical evidence. Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844 (Jan. 18, 2017) (technical errors corrected by 82 Fed.Reg. 15, 132 (Mar. 27, 2017)). The revised regulations became effective on March 27, 2017. Id.; see, e.g., 20 C.F.R. §§ 404.1520c, 416.920(c) (2017) (explaining how an adjudicator considers medical opinions for claims filed on or after March 27, 2017). The ALJ appropriately applied the revised regulations to Cotto's claim, which was filed in January 2018, well after the effective date.
If the reviewing court is satisfied that the ALJ applied the correct legal standards, then the court must “‘conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision.'” Brault v. Social Security Administration, Commissioner, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). Substantial evidence is defined as “‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971)); see also Biestek v. Berryhill, __ U.S. __, __, 139 S.Ct. 1148, 1154 (2019) (reaffirming same standard). “The substantial evidence standard means once an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448 (internal quotation marks omitted) (emphasis in original); see also 42 U.S.C. § 405(g) (“findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive”).
To be supported by substantial evidence, the ALJ's decision must be based on consideration of “all evidence available in [the claimant]'s case record.” 42 U.S.C. § 423(d)(5)(B). The Act requires the ALJ to set forth “a discussion of the evidence” and the “reasons upon which [the decision] is based.” 42 U.S.C. § 405(b)(1). While the ALJ's decision need not “mention[ ] every item of testimony presented, ” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam), or “‘reconcile explicitly every conflicting shred of medical testimony, '” Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983)), the ALJ may not ignore or mischaracterize evidence of a person's alleged disability. See Ericksson v. Commissioner Of Social Security, 557 F.3d 79, 82-84 (2d Cir. 2009) (mischaracterizing evidence); Kohler, 546 F.3d at 268-69 (overlooking and mischaracterizing evidence); Ruiz v. Barnhart, No. 01-CV-1120, 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring evidence).
Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). The court must afford the Commissioner's determination considerable deference and “may not substitute ‘its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'” Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary Of Health And Human Services, 733 F.2d 1037, 1041 (2d Cir. 1984)); Dunston v. Colvin, No. 14-CV-3859, 2015 WL 54169, at *4 (S.D.N.Y. Jan. 5, 2015) (same) (quoting Jones, 949 F.2d at 59), R. & R. adopted, 2015 WL 1514837 (S.D.N.Y. April 2, 2015). Accordingly, if a court finds that there is substantial evidence supporting the Commissioner's decision, the court must uphold the decision, even if there is also substantial evidence for the claimant's position. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). As explained next, the ALJ's decision in the instant case was supported by substantial evidence.
The ALJ found in favor of Cotto with respect to step one (not gainfully employed). Accordingly, the Court does not address that step of the analysis.
2. Substantial Evidence Supports The ALJ's Findings At Step Two
Step two of the sequential analysis requires the ALJ to determine the extent to which the claimant has a severe medically determinable impairment as “established by objective medical evidence from an acceptable medical source.” 20 C.F.R. § 416.921. An impairment “is not severe if it does not significantly limit [the claimant's] physical or mental ability to do basic work activity.” 20 C.F.R. § 416.922; see also Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995).
At the second step of her analysis, the ALJ found that Cotto's seizure disorder was a severe impairment, while her other impairments were not severe. (R. 12-14.) The ALJ's assessment was supported by substantial evidence. The ALJ separately addressed both physical impairments and mental impairments. Starting with Cotto's physical conditions, the ALJ noted that Cotto's HIV and asthma were stable on medications, and that Cotto denied exacerbation of her asthma throughout the relevant period despite continuing to smoke cigarettes against her doctor's advice. (R. 12-13, 17; see R. 576, 582.) The ALJ also observed that while Cotto was prescribed medication for hypertension, there was no evidence of record indicating any resulting limitations. (R. 13; see R. 409, 524-25.)
Further, despite Cotto's lower back pain complaint, and objective imaging revealing spina bifida occulta, her physical examinations were largely normal, and there were no on-going reports of back pain. (R. 13; see R. 383, 430, 435, 521, 533-34, 54445, 553-54, 576.) Likewise, while acknowledging Cotto's concerns of blurry vision due to cataracts, the ALJ noted that she had 20/30 vision, opted to defer treatment, and provided no evidence of ongoing limitations due to that condition. (R. 13; see R. 440-41, 501-02.) Accordingly, substantial evidence supports the ALJ's determination that Cotto's physical conditions, other than her seizure disorder, were unlikely to significantly limit Cotto's ability to work and thus were non-severe.
The ALJ did not address two of Cotto's claimed impairments: pancreatitis and hepatitis C. The Record indicates that Cotto was hospitalized for acute pancreatitis in January 2016 and October 2017. (R. 276, 329, 398, 515, 747.) The Record indicates that Cotto was treated for Hepatitis C in 2015. (R. 748, 750, 757.) There are no records indicating those conditions existed or affected Cotto during the relevant period.
The ALJ's determination with respect to Cotto's mental impairments are similarly well-supported. While acknowledging that Cotto had been prescribed medication for bipolar disorder, the ALJ reasonably found that the condition did not cause more than a minimal limitation in her ability to perform basic mental work activities and was therefore non-severe. (R. 13; see also R. 428 (Cotto was able to do her “usual activities”), 575 (same).)
In reaching that conclusion, and in accordance with the regulations, the ALJ considered the four broad areas of mental functioning known as the “paragraph B” criteria. (R. 13-14.) The ALJ reasonably found that Cotto had no limitations in three of the four areas: (1) understanding, remembering, or applying information; (2) interacting with others; or (3) adapting or managing herself. (R. 14.) In support of his findings, the ALJ cited Cotto's ability to take care of her personal needs, prepare meals, pay bills, go to doctor's appointments, take public transportation, shop, read, and care for children. (R. 14; see R. 41-43, 46-47.) Additionally, Cotto, who lived alone, was able to interact and get along with others, and her medical providers described her as being pleasant and cooperative. (R. 14; see R. 40, 412.) The ALJ also reasonably found that Cotto had at most only a mild limitation in the fourth area - concentrating, persisting, and maintaining pace - particularly as the medical record did not evidence difficulties with attention or concentration. (R. 14.)
The ALJ's determination that Cotto had no severe mental impairments also was supported by the largely normal findings from mental status examinations, “[d]espite some reports of feeling anxious” (R. 13; see R. 533, 544-45, 557-58, 567, 588; but see R. 543 (reporting depression and little interest in doing things).) The record contains hundreds of pages of treatment records, most of which reflect normal mental status examination findings from Cotto's treating nurse practitioners and psychiatrists both prior to the relevant period (see, e.g., R. 295, 366, 376, 379, 386, 399, 402), and thereafter (see, e.g., R. 412, 521, 544, 557-58, 568, 588, 591, 607, 619, 624, 643, 703-04, 712-13, 748, 776, 793, 797-98, 807, 809, 813, 837). Indeed, Cotto reported that she was “doing great” on January 10, 2018, the same month she applied for SSI. (R. 411.) State agency psychiatrist Dr. Brown's opinion that Cotto did not have a severe mental impairment was consistent with that record and constituted additional substantial evidence for the ALJ's findings. (R. 17; see R. 63, 414-15.)
Even if the ALJ had erred in concluding that certain of Cotto's conditions were not severe, such error would be harmless. Where, as here, an ALJ proceeds past the second step of the sequential analysis and considers the combined effects of all of the claimant's impairments in the remaining steps of the sequential evaluation, any error at step two is harmless. See Reices-Colon v. Astrue, 523 Fed.Appx. 796, 798 (2d Cir. May 2, 2013); Stanton v. Astrue, 370 Fed.Appx. 231, 233 n.1 (2d Cir. Mar. 24, 2010).
3. Substantial Evidence Supports The ALJ's Findings At Step Three
At the third step of the sequential evaluation, the ALJ reasonably concluded that Cotto's impairments, either singly or in combination, did not meet or equal the criteria of an impairment contained in the Listings. (R. 15). To match any Listed impairment, a claimant “must meet all of the specified medical criteria, ” and “[a]n impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 891 (1990)
The ALJ particularly addressed Listing 11.02 (epilepsy), which requires that a claimant have had seizures once a month for three consecutive months or once every two months for at least four consecutive months despite adherence to prescribed treatment. 20 C.F.R. Pt. 404, Subpart P, Appendix 1, § 11.02. The ALJ found no evidence that Cotto met those standards. (R. 15.) To the contrary, the record contains no indication of any seizures during the relevant period, other than one self-reported seizure in early 2019 for which no adverse effects were indicated. (See R. 412, 519, 543, 588.) Accordingly, the ALJ's step-three determination is supported by substantial evidence.
The only seizure episode objectively reflected in the medical record is from August 10, 2017 (thus predating the relevant period), for “altered mental status, likely due to cocaine-induced/provoked seizure.” (R. 874; see also R. 543 (Cotto reported in October 2018 not having a seizure since 2017).)
4. Substantial Evidence Supports The ALJ's Findings At Step Four
At the fourth step, the ALJ must determine the claimant's RFC and ability to perform their past relevant work. 20 C.F.R. § 416.920(4)(iv). In the instant case, the ALJ found that Cotto was not able to perform her past work. Accordingly, the only issue with respect to step four is whether substantial evidence supports the ALJ's determination of Cotto's RFC.
RFC is the most a claimant can do in a work setting despite their physical and mental limitations. 20 C.F.R. § 416.945(a)(1); Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). In assessing a claimant's RFC, an ALJ must take into account both the claimant's severe impairments and non-severe impairments, id. (citing disability insurance equivalent of 20 C.F.R. § 416.945(a)(2)), and consider all medical and other evidence of record. 20 C.F.R. § 416.945(a)(1).
Here, the ALJ found that Cotto retained the RFC to perform a full range of work at all exertional levels, except she could not climb ropes, ladders or scaffolds, or be exposed to hazards, such as unprotected heights or dangerous equipment. (R. 15.) The ALJ properly evaluated all relevant evidence, including Cotto's medical records, her reported symptoms, the medical source opinions, and the testimony from both Cotto and the VE. (R. 15-17.) See 20 C.F.R. § 416.945(a)(3) (Agency considers all relevant medical and other evidence). § 416.913 (referencing five categories of evidence: objective medical evidence, medical opinion evidence, other medical evidence, evidence from nonmedical sources, and prior administrative medical findings).
The ALJ framed much of her analysis around Cotto's reported symptoms and the medical opinion evidence. In both instances, substantial evidence supported the ALJ's conclusions.
a. Cotto's Symptoms
The ALJ found that Cotto's impairments could reasonably be expected to cause Cotto's alleged symptoms, but also found that Cotto's statements regarding her symptoms and limitations were not consistent with the objective medical and other evidence. (R. 15, 16.) Mentally, Cotto alleged that she had difficulty remembering, or applying information, spending time in crowds, concentrating and following instructions, and difficulties managing her mood. The ALJ reasonably determined, however, that Cotto's ability to execute tasks, take care of herself, respond to inquiries, and follow instructions indicated otherwise. (R. 14.)
See 20 C.F.R. 416.929(c) (requiring two-step analysis of a claimant's symptoms).
Physically, Cotto alleged that she stopped working due to symptoms from HIV and seizure disorder. (R. 15; see R. 155-56.) She testified that she sometimes forgot to take her HIV medication, which caused her viral loads to increase. (R. 49-50.) The ALJ reasonably found, however, that the medical record showed that Cotto's HIV was stable and that she generally had “no complaints.” (R. 12 (referring to R. 515, 530, 582, 862).) As for Cotto's seizure disorder, the ALJ observed that it arose in the context of drug abuse and that, in any event, the condition was effectively controlled by her prescribed medicine, Depakote. (R. 16; see R. 49, 51, 384, 413, 588, 874.) And despite being advised in August 2018 to follow up with neurology for seizures, Cotto did not do so, thus suggesting that the condition did not pose limitations to the extent claimed. (R. 558.) See, SSR 96-7p, 1996 WL 374186, at *7 (July 2, 1996) (“the individual's statements may be less credible ... if the medical reports or records show that the individual is not following the treatment as prescribed”).
The ALJ's decision states that Cotto “has not had any seizures since the application date.” (R. 16.) That statement is not correct, at least not based on Cotto's self-reporting to her doctor on March 6, 2019. (R. 519 (referring to seizure two weeks ago).) The oversight is harmless, however, as the purported seizure was an isolated incident; Cotto's three other seizures predate the application period; nothing in the record indicates that the seizure had any ill effect on Cotto or impaired Cotto's functioning; and just a week later Plaintiff reported “no complaints” to Dr. Glicksman. (R. 515.) See Zabala, 595 F.3d at 409 (“Where application of the correct legal principles to the record could lead only to the same conclusion, there is no need to require agency reconsideration”).
Finally, as noted above, physical examinations in the record were often largely or entirely normal. (R. 383, 430, 521, 533-34, 544-45, 553, 576.) And the occasions when Cotto did have complaints were either non-recurring (e.g., back pain) or only occasional (e.g., hearing voices). The ALJ thus had a substantial basis to discount Cotto's description of her symptoms.
b. Medical Opinion Evidence
The ALJ also properly evaluated the medical opinion evidence. The ALJ first addressed the opinion of Dr. Glicksman, who assessed that Cotto was limited to less than sedentary work with postural and environmental limitations. (R. 880-82.) The ALJ found the opinion unpersuasive in light of its lack of consistency and supportability. (R. 17.) For example, Dr. Glicksman based her conclusions in part on Cotto having arthritis and osteoporosis, even though the medical record does not contain any diagnosis of either affliction. Similarly Dr. Glicksman's opinion that Cotto could only lift and/or carry less than ten pounds and sit for a total of two hours in an eight-hour workday due to arthritis, spina bifida occulta in her lower back, osteoporosis, and chronic pain in her legs and hands, was pointedly at odds with her assessment just three months earlier that Cotto had no complaints, and had full range of extremity motion, normal gait, and normal motor strength. (R. 862-65). Nonetheless, “out of an abundance of caution” due to Cotto's history of seizures, the ALJ incorporated a portion of Dr. Glicksman's opinion into the RFC by limiting exposure to workplace hazards. (R. 16.)
As noted earlier, the regulations applicable to Cotto's claim are those revised in 2017. Pursuant to those regulations, the Agency no longer applies the “treating physician rule.” The Agency thus “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [the claimant's own] medical sources.” 20 C.F.R. § 416.920c(a). Now, medical opinions are evaluated for the persuasiveness, based on supportability, consistency, relationship to claimant, specialization, and “other factors.” Id. § 416.920c(a)-(c). Supportability and consistency are the most important factors. Id. § 416.920c(b)(2).
The ALJ also properly evaluated the opinion of NP Kotin (whom Cotto had started seeing just shortly before the hearing), finding it unpersuasive, particularly for its lack of support in the objective medical record. (R. 17.) NP Kotin opined that Cotto had marked-to-extreme limitations in her ability to perform the mental aspects of work, would likely be absent from work more than four days per month, and experienced medication side effects. (R. 17, referring to R. 883-85.) Yet, as the ALJ observed, the medical records document largely normal mental status examinations and do not include any reference to side effects from medication. (R. 17; see R. 521, 544, 557, 568, 588, 591, 619, 624, 643, 703-04, 712-13, 748, 776, 793, 797-98, 807, 809, 813, 837.)
The ALJ also properly evaluated the prior medical administrative findings by the medical and psychological consultants (Dr. Brown and Dr. Padmaraju), who assessed that Cotto's HIV, asthma, hypertension, seizure disorder, and bipolar disorder had minimal effect on her ability to perform basic work activities and were otherwise non-severe. (R. 17 (discussing R. 61-64.)) The ALJ reasonably found those assessments persuasive on the ground that they were consistent with the other medical evidence of record that the ALJ had considered.
Under the prior regulations, assessments by Federal and State agency medical and psychological consultants were categorized as both medical opinions and administrative findings of fact. 81 Fed.Reg. at 62, 563. The revised regulations place this evidence into a single category of evidence called “prior administrative medical findings, ” which are findings, other than the ultimate determination on whether a claimant is disabled, about medical issues made by the consultants at a prior level of review in the claimant's current claim based on their review of the evidence. Id. at 62, 564; 20 C.F.R. § 416.913(a)(5).
The Court finds no error in the ALJ's making no mention of NP Liu's homecare assistance request, which referred to Cotto as having reduced exercise tolerance and being forgetful. (R. 504.) The form is undated, was submitted for home care rather than in the context of assessing work-related functional abilities, and is of a kind with Dr. Glicksman's opinion, which the Court found unsupported by the record. See Zabala 595 F.3d at 410 (finding harmless error where the ALJ's consideration of a doctor's report would not have changed the ALJ's adverse determination); Simmons v. Commissioner of Social Security, No. 18-CV-1462, 2020 WL 4597316, at *4 (W.D.N.Y. Aug. 10, 2020) (ALJ's failure to discuss opinion of nurse practitioner stating that claimant had poor judgment and was unable to independently manage life responsibilities was harmless error where the opinion echoed witness testimony that the ALJ rejected based on other evidence); Walzer v. Chater, 93-CV-6240, 1995 WL 791963 at *9 (S.D.N.Y. Sept. 26, 1995) (ALJ's failure to discuss a treating physician's report was harmless error where consideration of report would not have changed outcome).
To be sure, the record reflects ups and downs in Cotto's medical status. But substantial evidence supports the ALJ's decision. While it is possible that there is evidence in the record to support a different outcome, the Court cannot conclude that no reasonable factfinder could have drawn the same conclusions as the ALJ based on the record. Brault, 683 F.3d at 448; see also Krull v. Colvin, 669 Fed.Appx. 31, 32 (2d Cir. 2016) (“Krull's disagreement is with the ALJ's weighing of the evidence, but the deferential standard of review prevents us from reweighing it.”); Jones 949 F.2d at 59 (holding that the ALJ's decision must be upheld, even if substantial evidence supports both the ALJ's decision and plaintiff's position); see also Bonet ex rel. T.B. v. Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013) (“[W]hether there is substantial evidence supporting the appellant's view is not the question here; rather, we must decide whether substantial evidence supports the ALJ's decision” (citations omitted)).
5. Substantial Evidence Supports The ALJ's Finding At Step 5
Finally, substantial evidence supports the ALJ's finding at step five that Cotto could perform jobs existing in significant numbers in the national economy. (R. 18-19.) See McIntyre v. Colvin, 758 F.3d 146, (2d Cir. 2014) (at step five, the ALJ “must determine that significant numbers of jobs exist in the national economy that the claimant can perform”) (citing 20 C.F.R. §§ 404.1520(a)(4)(v)). An ALJ may make that determination based on testimony of a vocational expert in response to hypotheticals incorporating the claimant's limitations. Id.; Calabrese v. Astrue, 358 Fed.Appx. 274, 276 (2d Cir. 2009). The ALJ did exactly that, relying on the VE's testimony that a hypothetical worker with Cotto's profile and RFC could perform the light, unskilled jobs of hand packager, laundry laborer, and stocker, all of which existed in significant numbers in the national economy. (R. 18-19; see R. 54.)
CONCLUSION
For the foregoing reasons, the Commissioner's motion should be GRANTED and judgment entered in favor of the Defendant.
DEADLINE FOR OBJECTIONS AND APPEAL
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules Of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report And Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Vernon S. Broderick, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW.