Opinion
17-CV-4136 (PAE) (BCM)
09-07-2018
MARILYN SABINA DILLON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION TO THE HON. PAUL A. ENGELMAYER
BARBARA MOSES, United States Magistrate Judge.
Plaintiff Marilyn Dillon brings this action pursuant to § 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking judicial review of a final determination of the Commissioner of Social Security (the Commissioner) denying her application for disability insurance benefits (DIB). Both parties have moved for judgment on the pleadings. For the reasons set forth below, I respectfully recommend that plaintiff's motion be GRANTED and the Commissioner's motion be DENIED.
I. BACKGROUND
A. Procedural Background
Dillon applied for DIB on June 2, 2014, alleging disability since January 9, 2014. See Certified Administrative Record (Dkt. No. 14), at 145-46 (hereinafter R.___). The Social Security Administration (SSA) denied her application on August 13, 2014. (R. 93-98.) She requested a hearing before an Administrative Law Judge (ALJ) on September 10, 2014. (R. 100-101.)
On May 6, 2016, Dillon appeared in person, with an attorney, for a hearing before ALJ Sharda Singh. (R. 45-78.) Vocational expert Linda Stein also appeared and testified. (R. 73-77.)
On October 5, 2016, the ALJ issued a decision finding that Dillon was not disabled within the meaning of the Act. (R. 11-31.) Plaintiff timely requested review by the Appeals Council (R. 258-60), but it rejected her request on April 13, 2017, making the ALJ's decision final. (R. 1-10.)
B. Personal Background
Dillon was born on October 6, 1975, and was 39 years old on the date of her application. (R. 145.) She completed high school in 1992 and received a certificate in "ultrasound" from a trade school. (R. 180, 65.) She worked as a bank teller from 2001-2003, as a buyer for a retail store from 2003 to 2009, and as a medical assistant at a doctor's office from 2012 to 2014. (R. 207.)
In a Disability Report dated June 10, 2014, Dillon reported that she was disabled due to fibromyalgia, lupus, depression, anxiety, post-traumatic stress disorder (PTSD), panic disorder, manic disorder, chronic fatigue, spinal stenosis, and herniated cervical disc. (R. 178.) In a Function Report dated July 7, 2014, prepared in connection with her application, Dillon stated that she spent her days caring for her children, reading, attending appointments, going to the library, and watching television. (R. 197.) Her disabilities left her unable to stand, sit, or walk for "a long time," socialize, perform cleaning or heavy cooking, and diminished her ability to lift objects or climb stairs. (R. 197, 200, 203.) She could no longer style her hair, but could clean and comb it. (R. 197.) She needed assistance dressing, preparing meals and doing housework. (R. 197-99.) However, she drove her children to school five times a week and went shopping and attended church once a week. (R. 200-01; see also R. 65.)
Plaintiff stated that she had problems getting along with others due to her social anxiety, and that this had worsened over time. (R. 200.) She took Aleve and Cymbalta for pain, but these medications caused her to feel sleepy and dizzy and gain weight. (R. 205-206.) She said that stress or changes in schedule gave her panic attacks and anxiety, and made her heart race, and she had trouble remembering things. (R. 204.) She was able to pay bills, count change, and handle a savings account. (R. 201.) She was able to follow written and spoken instructions and had no problems getting along with those in authority. (R. 202.) She said she could not kneel, squat, or reach. (R. 203.) She reported that she used a cane to walk. (Id.)
II. PLAINTIFF'S MEDICAL HISTORY
A. Treatment Records Relating Primarily to Plaintiff's Physical Impairments
Between 2013 and 2016, plaintiff saw a series of treatment providers for her physical conditions. X-rays of plaintiff's left shoulder on April 23, 2013 showed no "acute abnormality." (R. 261.) X-rays of the cervical spine that same day showed straightening of the cervical curve. (R. 262.) However, the vertebral bodies were intact, the invertebral disc spaces were unremarkable, and the prevertebral soft tissue spaces showed no widening. (Id.)
An MRI taken of Dillon's cervical spine on May, 4, 2013 showed "straightening of the cervical lordosis" and "disc desiccation at all cervical disc space levels." (R. 263.) The MRI report noted disc herniation at C5-6, causing compression upon the cord narrowing the left side neural foramina. (Id.) At C6-7, there was disc herniation that abutted the spinal cord and narrowed the left-sided neural foramina. (Id.)
On May 22, 2013, Dillon saw orthopedist David Lent, M.D., complaining of "weakness and numbness in her left upper extremity." (R. 264.) On examination, Dr. Lent observed that Dillon had some weakness with wrist and thumb extension and a Spurling's Test (used to determine nerve radicular syndrome) was mildly positive on the left. (Id.) However, Dillon had "full range of motion of the shoulder, elbow, wrist, and fingers." (Id.) Dr. Lent referred Dillon to a neurosurgeon for evaluation and treatment. (Id.)
On February 20, 2014, Dillon saw rheumatologist Dr. Jacob Futran, M.D., complaining of headaches, pain in the right shoulder, and diffuse pain in the legs and low back. (R. 273-74.) On examination, plaintiff appeared to be in no acute distress. (R. 273.) Dr. Futran noted that she had tenderness in both shoulders, the left sacroiliac joint, and both hips, and had 14 fibrositic tender points. (R. 273-74.) He assessed inflammatory spondyloarthritis, fibrositis/fibromyalgia, and rotator cuff sprain and strain, and ruled out lupus or other connective tissue diseases. (R. 274.) He prescribed exercise to address the fibrositis/fibromyalgia (because Dillon wanted to avoid medication) and the rotator cuff sprain/strain. (Id.)
Tender points are areas of pain on the body around joints that are sore when pressed and are used to diagnose fibromyalgia. They are located on the neck, back, chest, elbows, buttocks, knees, and hips. See "Fibromyalgia Tender Points," WebMd, https://www.webmd.com/fibromyalgia/guide/fibromyalgia-tender-points-trigger-points#1 (last visited September 7, 2018.)
Dr. Futran saw Dillon again on March 10, 2014. (R. 296-98.) Dillon reported that she continued to have neck pain and low back pain that became worse with movement. (R. 296.) On examination, Dillon had tenderness in both sacroiliac joints and mild to moderate tenderness in fiobrositic tender areas. (R. 297.) Dr. Futran's prescribed Duloxetine. (Id.)
Dulexotine is used to treat nerve pain due to medical conditions such as arthritis, chronic back pain, or fibromyalgia. See "Duloxenine," WebMD, https://www.webmd.com/drugs/2/drug-91490/duloxetine-oral/details (last visited September 7, 2018).
On April 16, 2014, spinal neurosurgeon Paul McCormick, M.D., evaluated possible fibromyalgia and lupus. (R. 277.) On examination, Dillon appeared to be "in good health" and in "no acute distress." (Id.) She had some movement limitations in her left shoulder when lifting over her head, but she had good proximal and distal strength, and normal gait and leg strength. (Id.) Dr. McCormick assessed cervical spondylosis, but noted that her condition was stable. (Id.) He advised against surgical intervention. (Id.)
Dillon returned to Dr. Futran on July 31, 2014, reporting pain in the neck and scapular region, "tiredness" in her knees, and morning stiffness. (R. 294.) Dr. Futran's examination showed tenderness in all fibrositic tender points, but was otherwise normal. (R. 294-95.) He again assessed fibrositis/fibromyalgia and again recommended that Dillon exercise. (R. 295.)
Dillon was examined by rheumatologist Jane Wachs, M.D., on September 22, 2014, for knee, ankle, and wrist pain, depression, and fatigue. (R. 304-307.) On examination, Dillon had a normal gait, normal range of motion, and full strength. (R. 306.) However, Dillon was "[t]ender everywhere," particularly in the fibromyalgia tender points. (Id.) Dr. Wachs suggested Lyrica to treat Dillon's fibromyalgia, and prescribed Prozac for her anxiety and depression (noting that they were "clearly contributing" to the fibromyalgia). (R. 307.)
Lyrica is used to treat pain in people with fibromyalgia. See "Lyrica," WebMD, https://www.webmd.com/drugs/2/drug-93965/lyrica-oral/details (last visited September 7, 2018).
Dillon saw Dr. Wachs again on October 9, 2014. (R. 323.) She reported pain in her left shoulder, hip and thigh, and tenderness in the trapezius muscles. (Id.) She reported feeling "ok," but had some discomfort in the left shoulder, hip, thigh, and back. (Id.) She complained of muscle pain and cramps but denied back pain, joint pain/swelling, and stiffness. (R. 324.) Dr. Wachs noted that Dillon's control points were less tender and she had only mild diffuse muscle tenderness. (R. 325.) She prescribed Amitriptyline and discontinued Prozac. (R. 326.)
Amitriptyline is used to treat depression. See "Amitriptyline," WebMD, https://www.webmd.com/drugs/2/drug-8611/amitriptyline-oral/details (last visited September 7, 2018)
On March 9, 2015, Dillon returned to Dr. Wachs, complaining of fatigue and pain in the arm, shoulder, and legs. (R. 329.) Dr. Wachs noted that Amitriptyline was ineffective in controlling fibromyalgia, "likely because of the depression." (R. 331.) However, she continued Dillon's current medications until she commenced therapy. (Id.)
On August 24, 2015, Dillon reported to Dr. Wachs that she felt "terrible," with pain in the hips and knees. (R. 334.) On examination, however, Dillon had full range of motion and full strength, and normal gait and station. (R. 336.) Dr. Wachs added Elavil to treat Dillon's ongoing complaints of pain. (R. 336.)
Elavil is used to treat depression. See "Elavil Tablet," WebMd, https://www.webmd.com/drugs/2/drug-1807/elavil-oral/details (last visited September 7, 2018).
On December 3, 2015, Dillon reported dizziness from the Amitriptyline and pain in the left arm, shoulder, and hip. (R. 356.) Dr. Wachs noted that Dillon's fibromyalgia "continue[d] to be symptomatic," with "diffuse tender musculature" and tender fibromyalgia points. (R. 360-61.) Dr. Wachs discontinued Amitriptyline and prescribed Lyrica. (R. 361-62.) On March 3, 2016, Dillon reported some improvement in muscle pain, but she continued to experience pain in her iliac crest and low back. (R. 363.) Her fatigue had improved. (Id.) She again had normal, gait, station, range of motion, and strength. (R. 365.) This time, Dr. Wachs's examination showed that the control points were less tender. (Id.) Dr. Wachs increased the dosage of Lyrica. (R. 366.)
B. Opinion Evidence Related to Physical Impairments
1. Consultative Examiner Dr. Julia Kaci
On July 25, 2014, Julia Kaci, M.D., performed a consultative examination of the plaintiff. (R. 279-82.) Dillon reported pain in the neck, back, hips, shoulders, and legs, as well as depression and forgetfulness. (R. 279.) She stated that she did not cook, clean or do laundry, but went shopping once a week and cared for her children daily. (R. 279-80.) She told Dr. Kaci that she bathed and dressed with help. (R. 280.)
On examination, Dillon walked with a normal gait, used no assistive devices, and needed no help rising from a chair or getting on and off the exam table. (R. 280.) She was able to perform a full squat, and had a normal stance. (Id.) However, she had trouble walking on her heels or toes. (Id.) She had full flexion in the cervical spine, but limited extension, and limited rotary movement on the left side. (R. 281.) She had full range of motion in the shoulders, elbows, forearms, wrists, hips, knees, and ankles. (Id.) A straight leg test was negative bilaterally. (Id.) She had tenderness in the neck, upper and lower back, hips, chest, elbows, and knees, and 18 fibromyalgia trigger points. (Id.) She had near-full strength, a full grip, and intact dexterity in her hands and fingers. (Id.)
Dr. Kaci assessed neck pain, fibromyalgia, positive ANA (indicating the possible presence of an autoimmune disease), PTSD, and anxiety. (R. 282.) However, Dillon's prognosis was "stable." (Id.) Dr. Kaci concluded that Dillon had mild limitations in activities requiring frequent neck turning; moderate limitations going up and down stairs, lifting, and carrying; and "mild limitations" in squatting and in "reaching up and out with the bilateral shoulders." (Id.)
2. Treating Physician Dr. Jacobo Futran
In a physical RFC questionnaire dated July 31, 2014, Dr. Futran assessed fibromyalgia and false positive ANA, with symptoms of diffuse aches and pains, mainly in the scapular region. (R. 289.) He regarded Dillon's prognosis as "excellent," though he also noted that "sometimes [fibromyalgia] is a chronic condition." (R. 290.) Under clinical findings, he noted "no active joints" and "tenderness in all fibrositic tender points." (R. 291.) Under laboratory findings, he noted that tests for auto-immune diseases were normal, and that an EMG showed no radiculopathy or neuropathy. (Id.)
A false-positive test indicates the presence of elevated ANA but no associated autoimmune disease. See "Antinuclear Antibody Panel," Healthline, https://www.healthline.com/health/antinuclear-antibody-panel#results (last visited September 7, 2018).
Based on the medical findings, Dr. Futran opined that Dillon could frequently lift and carry, and could lift a maximum of 30 pounds. (R. 292.) Dillon had no limitation in sitting. (Id.) Dr. Futran opined that plaintiff did have limitations in pushing and pulling, but failed to specify what those limitations were. (Id.) Two checkboxes were provided for other limitations (including postural or manipulative limitations), but Dr. Futran did not check either box. (Id.)
C. Treating Records Relating Primarily to Plaintiff's Mental Impairments
Dillon saw psychiatrist Rehana Latif, M.D., on April 3, 2014, complaining of anxiety and panic attacks. (R. 390.) On examination, Dillon was alert and fully oriented. (Id.) She had appropriate affect, logical thought content, grossly intact memory and attention, and good insight. (Id.) However, Dr. Latif noted that Dillon had an anxious mood. (Id.) She prescribed Cymbalta and Prozac, for depression, and recommended supportive therapy, stress management, and therapy. (Id.)
Cymbalta (Duloxetine) is used to treat depression and anxiety. See "Cymbalta," WebMD, https://www.webmd.com/drugs/2/drug-91491/cymbalta-oral/details (last visited September 7, 2018).
Dillon reported "doing a lot better" at her June 18, 2014 visit to Dr. Latif. (R. 391.) She reported "good sleep and appetite" and denied any recent stress. (Id.) She denied any side effects from the medications. (Id.) However, Dr. Latif noted that Dillon stopped using medication when she did not believe in their effectiveness, and she encouraged her to comply with her prescriptions. (Id.)
On June 25, 2014, Dillon reported improvement to Dr. Latif. (R. 392.) She said that she felt stable and felt "better" on medication. (Id.) She was again alert and fully oriented, with an appropriate affect, logical thought content, intact memory, and good insight. (Id.) Dillon returned on July 23, 2014, reporting that she was "doing well on the medications," and that her medication was also helpful with the fibromyalgia symptoms. (R. 393.) Her mood was "okay" and she was alert, oriented, had an appropriate affect, good judgment, and good insight. (Id.) Dr. Latif assessed major depressive disorder but noted that Dillon did not fully meet the criteria for PTSD. (Id.)
On August 6, 2014, Dillon reported anxiety and panic attacks. (R. 394.) She told Dr. Latif that she wanted "to be able to take some time off." (Id.) A mental status examination was normal. (Id.) Dr. Latif assessed anxiety disorder and reduced Dillon's dosage of Prozac, because she had reported feeling more anxious and irritable after taking it. (Id.)
D. Opinion Evidence Related to Mental Impairments
1. Consultative Examiner Dr. Elizabeth Kronk
On July 25, 2014, Dillon saw psychologist Elizabeth Kronk, Psy.D., for a consultative evaluation. (R. 283.) Dillon reported difficulty falling asleep and increased appetite. (Id.) She stated that she often felt depressed and cried frequently, had no social interaction with her friends, had low energy, and experienced nightmares and flashbacks due to childhood abuse, panic attacks, and short-term memory loss. (R. 284.)
Dillon stated that her husband helped her with most of her daily activities, "due to her significant anxiety and depressed mood." (R. 205.) She only shopped online or with her husband at night, and did not take public transportation, because she was scared of crowds. (Id.) She socialized with only a few people, but did not feel motivated to do so recently. (Id.) Her family relationships were good. (R. 285-86.) She dressed, bathed, and groomed herself. (R. 285.) On the basis of Dillon's report, Dr. Kronk found no concerns with her adaptive functioning. (R. 286.)
On examination, Dillon was "cooperative" and related to the examiner in an "adequate" manner. (R. 284.) She spoke fluently and clearly, had a coherent thought process, full orientation, and intact attention and concentration. (R. 284-85.) Her mood was "euthymic," but she had an "anxious and tense" affect. (R. 285.) Her memory was "impaired due to anxiety in the evaluation," but she had good insight and judgment, and appeared to have average intellectual functioning. (Id.)
Dr. Kronk found that there was no evidence of limitations in Dillon's ability to "follow and understand simple directions and instructions," "perform simple tasks independently," "learn new tasks," or "make appropriate decisions." (R. 286.) However, Dr. Kronk opined that Dillon had mild limitations in the ability to maintain attention and concentration and "perform complex tasks independently" (noting that Dillon would need supervision), and moderate limitations in the ability to "maintain a regular schedule," "relate adequately with others," and "appropriately deal with stress." (Id.)
2. State Agency Consultant Dr. C. Anderson
On August 12, 2014, state agency psychiatric consultant C. Anderson reviewed the medical file but did not examine plaintiff personally. (R. 79-89.) Dr. Anderson found that Dillon had no restrictions in maintaining social functioning; mild restriction in her activities of daily living; and moderate difficulties in maintaining concentration, persistence or pace. (R. 83.) She had no repeated episodes of extended decompensation. (Id.)
Dr. Anderson opined that Dillon had "understanding and memory" limitations, but was not significantly limited in her ability to remember locations and work-like procedures, or understand and remember instructions. (R. 86.) Dillon also had "sustained concentration and persistence limitations" but was not limited in her ability to carry out instructions, maintain attention and concentration for extended periods, sustain an ordinary routine, work in coordination with or in proximity to others without being distracted, and make simple work-related decisions. On the other hand, plaintiff was moderately limited in her ability to perform activities within a schedule, maintain regulation attendance, be punctual, complete a normal workday and workweek without psychological interruptions, and perform at a consistent pace without unreasonable breaks. (R. 86-87.) Dr. Anderson opined that Dillon had no "social interaction" limitations, but did have adaption limitations because she was moderately limited in responding appropriately to changes in work setting, setting realistic goals or making independent plans, but not significantly limited with respect to her ability to be aware of normal hazards and take appropriate precautions and travel to unfamiliar places or using public transportation. (R. 87.) Dr. Anderson concluded that "from a psych[iatric] perspective, there are no marked impairments in [Dillon]'s ability to understand, concentrate, remember, adapt, relate, or persist with tasks on a sustained basis." (R. 88.)
3. Treating Psychologist Dr. Rebecca King
On December 1, 2015, at the request of plaintiff's counsel, psychologist Rebecca King, Psych.D., completed a Medical Assessment of Ability to Do Work-Related Activities (Mental). (R. 340, 342-43.) Dillon's counsel also requested copies of Dr. King's progress notes. (R. 340.) However, on December 15, 2015, Dr. King submitted a one-page letter containing "a synopsis of the clinical assessment, treatment plan and progress" in lieu of her treatment notes, "which I do not provide." (R. 341.)
In her narrative, Dr. King stated that she "ha[d] been working with [Dillon] on a weekly basis since April 2013." (R. 341.) She initially diagnosed Dillon with dysthymic disorder, but later added a diagnosis of PTSD as the treatment progressed. (Id.) Dr. King noted that Dillon had a "damaged and inadequate" sense of herself, which "pervaded all aspects of herself, with the exception of parenting." (Id.) Dillon had "tendencies to personalize, catastrophize, make erroneous assessments and judgments of herself and others." (Id.) "[Dillon's] negative view of herself . . . shaped" her interaction with her colleagues, and her cognitive functioning became impaired when she was under stress, "leading her to further withdraw." (Id.)
Dr. King noted that Dillon had "made some progress in her self-awareness" and that she had also improved in her overall sense of inadequacy, guilt and shame, hopelessness and helplessness, and social withdrawal. (R. 341.) However, Dillon "remain[ed] avoidant of stressors" and her cognitive functioning "continue[d] to decline and she [had] panic attacks in the face of stress." (Id.) At no point in her narrative did Dr. King specify the timeline of her diagnoses, the severity of plaintiff's symptoms, their effect on plaintiff's ability to function (except as a parent), or the extent of plaintiff's improvement or deterioration in her mental condition.
In her medical source statement, Dr. King opined that Dillon had "good" (defined as limited but satisfactory) ability to interact with supervisors, "fair" (defined as seriously limited but not precluded) ability to follow work rules, relate to coworkers, use judgment, and function independently, but that her ability to deal with the public, deal with work stress, and maintain attention or concentration was "poor or none." (R. 342-43.) In terms of Dillon's potential work performance, Dr. King opined that her ability to understand, remember, and carry out detailed or complex job instructions was "poor or none," but she had a fair ability to understand, remember, and carry out simple job instructions. (R. 343.) When asked to describe Dillon's limitations and to include the medical/clinical findings that supported her assessment, Dr. King wrote:
[Dillon's] dysthymia and anxiety related trauma history and family history contribute to mental schema of self as damaged/inadequate/loser and a thinking style of personalization and jumping to conclusions (erroneous assumptions) erroneous judgment of self and others, all or none thinking, catastrophization. As a result she withdraws becomes overwhelmed, shuts down lending to inability to handle work stress, maintain connections with public . . . .(R. 342.)
Dr. King also opined that Dillon had a good ability to maintain her personal appearance, and a fair ability to behave in an emotionally stable manner, but found that her ability to relate predictably in social situations or to demonstrate reliability was "poor or none." (R. 343.) Dr. King noted that plaintiff's limitations have been present "life long." (R. 343.)
4. Primary Care Physician Dr. Martin Sayegh
On November 4, 2015, Dillon's primary care physician, family practitioner Martin Sayegh, M.D., completed a Medical Assessment of Ability to Do Work Related Activities (Mental). (R. 387-88.) Using the same form that Dr. King had filled out, Dr. Sayegh opined that Dillon had an unlimited ability to follow work rules, relate to co-workers, deal with the public, use judgment, interact with supervisors, and function independently. (R. 387.) Although Dr. Sayegh opined that plaintiff had difficulty dealing with work stresses and maintaining attention or concentration, he did not identify to what extent. (Id.) Dr. Sayegh opined that Dillon had a "poor ability" to understand, remember, and carry out complex, detailed, or simple job instructions. (R. 388.) However, in the space provided to "describe any limitations and the medical/clinical findings that support this assessment," he simply wrote "poor." (Id.) He opined that Dillon had a good ability to maintain personal appearance, and a fair ability to behave in an emotionally stable manner, and relate predictably in social situations. (Id.)
III. HEARING
On May 6, 2016, Dillon and her counsel appeared at a hearing before ALJ Sharda Singh. (R. 45.) On examination by her own counsel, Dillon testified that she last worked as a part-time assistant to a doctor for less than one year, ending in January 2014, but was let go after she "messed up on . . . important things," such as mislabeling blood samples. (R. 50-51.) She also worked as a bank teller in 2001, where she was "on her feet" assisting customers, but she was let go after she had a "nervous break down" and stopped showing up for work a couple of days each week. (R. 54.) Following that, she worked as a clerical processor in 2006-2007, but left when the store closed. (Id.)
Dillon testified that she had experienced "muscle pains and weakness" for "more than 10 years" but did not pay much attention to her pain until around 2013. (R. 55-56.) After being diagnosed with fibromyalgia, her symptoms had "gotten significantly worse." (R. 56-57.) She took Amitriptyline, Lyrica, and Aleve or Motrin daily, but these medications were ineffective in helping her overcome the difficulties of "getting up, waking up, [and] staying in bed." (R. 57.) Dillon testified that she was diagnosed with major depressive disorder in 2001, but that since then she had been diagnosed with anxiety disorder. (R. 62-63.) She experienced memory loss, panic and constant worry throughout the day. (Id.)
Dillon testified that she drove her children to school, which was two blocks from her home, but then usually went back to bed. (R. 58, 65-66.) She reported that she could only sit for two minutes before she had to switch positions, and could only walk 20 feet before she had to stop. (R. 58-59, 68-69.) She went grocery shopping with her husband "every two weeks," though she also sometimes went by herself if she only needed one thing. (R. 67.) She was able to do "minimal" housework, such as "mak[ing] a sandwich or cook[ing] a little something," but did not use the stove, do laundry, or clean. (R. 61, 66-67.) She needed help getting dressed if she wore something nicer than "my sweats," and she took baths instead of showers for fear of falling down. (R. 68.) She could lift no more than 10 pounds. (R. 69.) She also had memory problems, to the degree that she sometimes forgot to turn the stove off; her husband paid the bills in the household because she had trouble remembering to do so. (R. 70-71.)
At the conclusion of Dillon's testimony, the ALJ asked vocational expert Linda Stein to identify Dillon's past work and the attendant exertional levels. (R. 73.) The vocational expert testified that Dillon's positions as a bank teller and retail store buyer had a light exertional level. (R. 73-74.) The ALJ then provided the following hypothetical to Stein:
[Assume] an individual the same age, education and past work experience as the claimant; can lift and carry 20 pounds occasionally, 10 pounds frequently; stand and walk for four hours and sit for up to six hours in an eight hour workday; can never [climb] ladders, ropes, or scaffolds, occasionally climb ramps, stairs, balance, stoop, kneel, crouch and crawl, to
avoid hazards; and is further limited to understanding, rember[ing], and carrying out simple, routine, repetitive, and noncomplex tasks.(Id.)
Stein testified that such an individual could not perform any of Dillon's past work as a teller or jewelry buyer, but could perform the job of bander, assembler, inspector and hand packager. (R. 74-75.) The ALJ then asked the vocational expert to assume a second hypothetical with the same limitations as in the first hypothetical but could "lift and carry 10 pounds occasionally, less than 10 pounds frequently; stand and walk for two hours and sit for up to six hours during an eight-hour work day." (R. 75-76.) Stein testified that this individual could perform the work of an addresser, table worker, and stone setter. (R. 76.)
The ALJ then adjourned the hearing. (R. 78.)
IV. ALJ DECISION
A. Standards
A five-step sequential evaluation process is used pursuant to 20 C.F.R. § 404.1520(a) to determine whether a claimant over the age of 18 is disabled within the meaning of the Act. The Second Circuit has described the sequence as follows:
First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a "severe impairment" that significantly limits her physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1 . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her
past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (citation omitted).
If it is determined that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not progress to the next step. 20 C.F.R. §§ 404.1520(a)(4). A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden at the fifth step. See Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). To support a finding that the claimant is not disabled at step five, the Commissioner must offer evidence demonstrating that other work exists in significant numbers in the national and local economies that the claimant can perform, given the claimant's RFC, age, education, and past relevant work experience. See 20 C.F.R. §§ 404.1512(f) (2015), 20 C.F.R. § 404.1560(c) (2012).
The regulations as they existed at the time of the Commissioner's decision provided further guidance for evaluating whether a mental impairment meets or equals a listed impairment at the third step. In a "complex and highly individualized process," 20 C.F.R. § 404.1520a(c)(1) (2011), the ALJ was required to determine how the impairment "interferes with [the claimant's] ability to function independently, appropriately, effectively, and on a sustained basis." 20 C.F.R. § 404.1520a(c)(2) (2011). The main areas to be assessed were the claimant's (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3) (2011). The first three categories were rated on a five-point scale, from "none" through "mild," "moderate," "marked," and "extreme." 20 C.F.R. § 404.1520a(c)(4) (2011). A "marked" limitation "may arise when several activities or functions are impaired, or even when only one is impaired, as long as the degree of limitation is such as to interfere seriously with [the claimant's] ability to function independently, appropriately, effectively and on a sustained basis." 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.00(c). The last area - episodes of decompensation - was rated on a four-point scale: none, one or two, three, and four or more. 20 C.F.R. § 404.1520a(c)(4) (2011).
As of March 27, 2017, the text of 20 C.F.R. §§ 404.1520a(c)(3) and (c)(4) has been amended to read, "We have identified four broad functional areas in which we will rate the degree of your functional limitation: Understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself." In this Report and Recommendation I apply the regulations as they existed at the time of the Commissioner's decision. Citations to regulations that have since been amended include the date of the version that was in effect at the time of the ALJ's decision.
With respect to certain listed mental disorders, including affective or anxiety disorders, the claimant was also required to show that she had at least two of the so-called "paragraph B criteria" or "paragraph C criteria." The paragraph B criteria for such disorders required at least two of the following: (1) marked restriction of activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of decompensation. See 20 C.F.R. Pt. 404, subpt. P, app'x 1 §§ 12.04(B), 12.06(B) (2016). The paragraph C criteria for affective disorders required: (1) repeated episodes of decompensation, each for extended duration; (2) a residual disease process that 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) a current history of one or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.04(C) (2016). The paragraph C criteria for anxiety disorders required a complete inability to function independently outside the area of one's home as a result of the disorder. 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.06(C) (2016).
As of January 18, 2017, the text of 20 C.F.R. Pt. 404, subpt. P, app'x 1 §§ 12.00 and 12.03 has also been amended. I apply the regulations as they existed at the time of the Commissioner's decision.
If a mental disorder does not meet or equal a listed impairment, it may still qualify as a disability if the claimant's RFC does not allow her to perform the requirements of her past relevant work, or if the claimant's limitations, age, education, and work experience dictate that she cannot be expected to do any other work in the national economy. 20 C.F.R. § 404.1520(f) (2015). The claimant's RFC is determined based on all of the relevant medical and other evidence in the record, including the claimant's credible testimony, objective medical evidence, and medical opinions from treating and consulting sources. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(3).
Finally, at step five, the Commissioner is "responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy" that the claimant can do, given her RFC. 20 C.F.R. § 404.1560(c)(2). "Under the law of this Circuit and the SSA Guidelines, the ALJ must call a vocational expert to evaluate a claimant's significant non-exertional impairments in order to meet the step five burden." Lacava v. Astrue, 2012 WL 6621731, at *18 (S.D.N.Y. Nov. 27, 2012) (citations omitted), report and recommendation adopted, 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012).
B. Application of Standards
At step one, the ALJ found that Dillon had not engaged in substantial gainful activity since January 9, 2014, the alleged onset of her disability. (R. 16.) She also found that Dillon met the insured status requirements of the Social Security Act necessary for collecting DIB through December 21, 2017. (Id.)
At step two, the ALJ found that Dillon suffered from the following severe impairments: fibromyalgia, cervical disc herniation, PTSD, depression, anxiety, panic disorder, and dysthymic disorder. (R. 16.) However, the ALJ found that "[t]here is no medical evidence to support the existence of any significant limitations in the claimant due to her left wrist surgery, lupus, or any other alleged condition," and that these alleged impairments, "considered singly and in combination . . . do not rise to the level of severe medically determinable impairments." (R. 17.)
At step three, the ALJ found that none of Dillon's impairments met or medically equalled the severity of one of the listed impairments. (R. 17.) The ALJ specifically considered Listing 1.04 (disorders of the spine), Listing 12.04 (affective disorders), and Listing 12.06 (anxiety-related disorders). (R. 21.) Relying in part on a Psychiatric Review Technique Form completed by Dr. Anderson, the ALJ found that neither the "paragraph B" criteria for these listings nor the "paragraph C" criteria were satisfied. (R. 20-21.)
The ALJ then determined that the plaintiff had the residual functional capacity to
lift and carry 10 pounds occasionally and less than 10 pounds frequently; stand and walk for two hours and sit for up to six hours during an eight-hour workday; can never climb ladders, ropes, or scaffolds; occasionally climb ramps, stairs, balance, stoop, kneel, crouch and crawl; can avoid hazards; and is further limited to understanding, remembering, and carrying out simple, routine, repetitive non-complex tasks.(R. 22.)
After fully describing the medical evidence of record, the ALJ determined that Dillon's statements concerning the "intensity, persistence, and limiting effects of her symptoms are not entirely consistent with the medical evidence" and Dillon's reported activities. (R. 27.) Specifically, the ALJ noted that plaintiff was "clearly able to engage in a wide range of independent daily activities," including caring for her children, driving them to school, attending school activities, and grocery shopping. (Id.)
In reaching her determination regarding plaintiff's physical RFC, The ALJ gave "significant weight" to Dr. Futran's opinion (that Dillon could frequently lift and carry, could carry a maximum of 30 pounds, could stand and/or walk up to 6 hours per day, had no limitations in her ability to sit, but was limited in her ability to push/pull). (R. 27.) She noted that Dr. Futran's opinion was "clearly consistent with an ability on the part of the claimant to perform at least sedentary exertional work." (Id.) The ALJ gave "substantial weight" to the opinion of consultative examiner Dr. Kaci (that plaintiff had mild limitations in activities requiring frequent neck turns, moderate limitations in climbing stairs, lifting and carrying, and mild limitations squatting and reaching up and out with both shoulders). (Id.) She noted that Dr. Kaci's opinion was "not inconsistent with an ability on the part of the claimant to work at the sedentary level of exertion with some postural limitations." (Id.)
With respect to Dillon's mental RFC, the ALJ gave the "most weight" to the opinion of state agency consultant Dr. Anderson (who concluded that there were no marked impairments in plaintiff's ability to understand, concentrate, remember, adapt, relate or persist with tasks on a sustained basis), because of Dr. Anderson's "program and professional expertise," and because Dr. Anderson reviewed the "available evidence of record," including Dr. Kronk's consultative psychiatric evaluation. (R. 27-28.)
The ALJ gave "some weight" to consultative examiner Dr. Kronk, to the extent that Dr. Kronk found that Dillon had no limitation in her ability to follow and understand simple directions and instructions, perform single tasks independently, learn new tasks, or make appropriate decisions; and that she was mildly limited in her ability to maintain attention and concentration and perform complex tasks independently. (R. 28.) The ALJ declined to adopt Dr. Kronk's opinion that Dillon was moderately limited in her ability to maintain a regular schedule, relate adequately to others, and deal appropriately with stress, because "this portion of the opinion" was "based solely on the claimant's subjective report" rather than any objective evidence; was inconsistent with Dillon's behavior during the examination; and was contradicted by the findings of Dr. Anderson. (R. 28.)
The ALJ gave "little weight" to the assessment of plaintiff's treating psychologist Dr. King (who opined that Dillon's ability to function was either fair, poor, or none, in 13 out of 17 mental status functional areas). The ALJ explained that "there are no treating notes of record to support Dr. King's conclusion that the claimant could not meet the basic mental demands of unskilled work," and that her medical source statement was not "consistent with her narrative opinion," in which she opined that "[Dillon's] condition has improved." (R. 29.)
The ALJ gave "minimal weight" to the opinion of plaintiff's primary care physician, Dr. Sayegh (who opined that Dillon could not deal with work stress, maintain attention/concentration, and had poor ability to understand, remember, and carry out job instructions), because there was no evidence that Dr. Sayegh actually treated the claimant and because he was a primary care physician, not a psychiatrist or psychologist. (R. 29.)
At step four, The ALJ found that Dillon could not perform her past relevant work. (R. 29.)
At step five, on the basis of the vocational expert's testimony, the ALJ concluded that Dillon had the RFC to perform a significant number of jobs in the national economy, including work as an addresser, table worker or stone setter. (R. 30-31.) The ALJ concluded that Dillon was not disabled within the meaning of the Act. (R. 31.)
V. ANALYSIS
A. Standards
Both parties have moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). To prevail on such a motion, a party must establish that no material facts are in dispute and that judgment must be granted to that party as a matter of law. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988); Claudio v. Commissioner of Social Security, 2017 WL 111741, at *1 (S.D.N.Y. Jan. 11, 2017).
The Act provides that the Commissioner's findings "as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). The reviewing court may set aside a decision of the Commissioner only if it is "based on legal error or if it is not supported by substantial evidence." Geertgens v. Colvin, 2014 WL 4809944, at *1 (S.D.N.Y. Sept. 24, 2014) (quoting Hahn v. Astrue, 2009 WL 1490775, at *6 (S.D.N.Y. May 27, 2009)); accord Longbardi v. Astrue, 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). Thus, where an applicant challenges the agency's decision, the district court must first decide whether the Commissioner applied the correct legal standards. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). If there was no legal error, the court must determine whether the ALJ's decision was supported by substantial evidence. Tejada, 167 F.3d at 773; Calvello, 2008 WL 4452359, at *8.
"Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1970)). "In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Longbardi, 2009 WL 50140, at *21 (citing Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999), and Williams v. Bowen, 859 F.2d 255, 256 (2d Cir. 1988)). However, the reviewing court's task is limited to determining whether substantial evidence exists to support the ALJ's fact-finding; it may not reweigh that evidence or substitute its judgment for that of the ALJ where the evidence is susceptible of more than interpretation. "[O]nce an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (emphasis in original) (quotation marks and citation omitted). Thus, the substantial evidence standard is "a very deferential standard of review - even more so than the 'clearly erroneous' standard." Id.; see also Brown v. Colvin, 73 F. Supp. 3d 193, 198 (S.D.N.Y. 2014).
"[T]he crucial factors in any determination must be set forth with sufficient specificity to enable [the reviewing court] to decide whether the determination is supported by substantial evidence." Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). Thus, remand may be appropriate if the ALJ fails to provide an adequate "roadmap" for her reasoning. But if the ALJ adequately explains her reasoning, and if her conclusion is supported by substantial evidence, the district court may not reverse or remand simply because it would have come to a different decision on a de novo review. "Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citation and internal quotation marks omitted). See also Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998) ("the court should not substitute its judgment for that of the Commissioner"); Ryan v. Astrue, 5 F. Supp. 3d 493, 502 (S.D.N.Y. 2014) ("[T]his Court may not substitute its own judgment as to the facts, even if a different result could have been justifiably reached upon de novo review.") (quoting Beres v. Chater, 1996 WL 1088924, at *5 (E.D.N.Y. May 22, 1996)).
Here, Dillon seeks remand on three principal grounds. First, she argues that ALJ Singh erred in her physical RFC determination because she failed to incorporate portions of Dr. Futran's and Dr. Kaci's opinions in that determination and failed to explain the omission. Pl. Mem (Dkt. No. 21) at 12-14. Second, she contends that the ALJ erred in her mental RFC determination because she inappropriately discounted the opinion of Dr. King, in violation of the treating physician rule, and further erred in favoring the opinion of the non-examining state agency reviewer over the opinions of both "examining physicians" (Dr. King and Dr. Kronk). Id. at 15-17. Lastly, Dillon asserts that the ALJ failed to give good reasons for her conclusion that plaintiff's allegations as to her symptoms were less than wholly credible. Id. at 18-20.
I find no error in the ALJ's credibility analysis. However, the ALJ's physical RFC cannot be squared with her favorable weighting of Dr. Kaci's opinion. Moreover, the ALJ did not provide adequate reasons for discounting the opinion of plaintiff's treating psychologist.
B. Credibility
An ALJ may not reject a claimant's statements about the intensity and persistence of her pain or other symptoms "solely because the available objective medical evidence does not substantiate [her] statements." Valdez v. Colvin, 232 F. Supp. 3d 543, 552 (S.D.N.Y. 2017) (quoting 20 C.F.R. §§ 404.1529(c), 416.929(c)) (emphasis added). This rule has particular force where the claimant complains of pain and fatigue associated with fibromyalgia, because "there are no objective tests which can conclusively confirm the disease" or empirically corroborate the symptoms. Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003) (quoting Preston v. Sec. of Health and Human Servs., 854 F.2d 815, 818 (6th Cir. 1988)). See also Lisa v. Sec'y of Dep't of Health & Human Servs. of U.S., 940 F.2d 40, 44 (2d Cir. 1991) (noting that fibromyalgia is "not easily detected by standard clinical tests").
This does not mean, however, that a claimant carrying a diagnosis of fibromyalgia must be believed in every particular. See, e.g., Clasen v. Colvin, 2015 WL 1312548, at *3 & n.9 (N.D.N.Y. Mar. 24, 2015) (upholding ALJ's determination that fibromyalgia patient's statements concerning his pain were not entirely credible based on "the various medical opinions of record, [plaintiff's] treatment history and the gaps therein, his activities of daily living, and his receipt of unemployment benefits after his alleged onset date"); Galowitz v. Astrue, 2012 WL 4762563, at *17 (S.D.N.Y. Aug. 20, 2012) (upholding denial of benefits to claimant diagnosed with fibromyalgia where her "reported activity level," including travel, participation in sports, and childcare activities, "corroborates that she is not limited to a disabling degree"); see also Rivers v. Astrue, 280 F. App'x 20, 22 (2d Cir. 2008) (a "mere diagnosis of fibromyalgia without a finding as to the severity of symptoms and limitations does not mandate a finding of disability"). In fibromyalgia cases, as in other cases, the ALJ may find the claimant's statements less than wholly credible "after weighing objective medical evidence, the claimant's demeanor, and other indicia of credibility," including any significant inconsistencies in the claimant's presentation of her own symptoms or capabilities. Valdez, 232 F. Supp. 3d at 543 (quoting Tejada, 167 F.3d at 775-76); see also, e.g., Genier, 606 F.3d at 50 (ALJ was "required to consider all of the evidence of record," including the claimant's "testimony and other statements with respect to his daily activities.").
The factors that are relevant in assessing credibility include, but are not limited to: (i) the claimant's daily activities; (ii) the location, duration, frequency, and intensity of her pain or other symptoms; (iii) precipitating and aggravating factors; (iv) the type, dosage, effectiveness, and side effects of medication; (v) treatment other than medication for relief of pain or other symptoms; and (vi) any home measures used to relieve pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3) (2011).
Where an ALJ rejects witness testimony as not credible, the basis for the finding must be set forth "with sufficient specificity to permit intelligible plenary review of the record." Williams, 859 F.2d at 260-61 (citing Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 643 (2d Cir. 1983)). However, it "is the function of the [Commissioner], not [the reviewing court], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant." Puente v. Comm'r of Soc. Sec., 130 F. Supp. 3d 881, 893-94 (S.D.N.Y. 2015) (citing Carroll, 705 F.2d at 642). "[C]ourts must show special deference to an ALJ's credibility determinations because the ALJ had the opportunity to observe plaintiff's demeanor while [the plaintiff was] testifying." Marquez v. Colvin, 2013 WL 5568718 at *7 (S.D.N.Y. Oct. 9, 2013). Thus, the court will not "second-guess the credibility finding . . . where the ALJ identified specific record-based reasons for [her] ruling," Stanton v. Astrue, 370 F. App'x 231, 234 (2d Cir. 2010), and where her determination is supported by substantial evidence. Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2012).
In this case (unlike Green-Younger), the ALJ did not doubt plaintiff's fibromyalgia diagnosis, and did not reject the opinion of her treating physician with regard to that condition. Nor did the ALJ discount plaintiff's allegations as to the severity of her symptoms based solely on the lack of test results or other objective findings corroborating either the diagnosis or the symptoms of fibromyalgia. To the contrary: the ALJ repeatedly noted that plaintiff's physical exams revealed "fibrositic tender points" (R. 23, 24, 25), and gave "significant weight" to the opinion of her rheumatologist, Dr. Futran, who diagnosed the disease. (R. 27.) However, the ALJ found that Dillon's own statements about the severity of her symptoms were "not entirely consistent with" a wide range of "evidence of record" (id.), including her activities of daily living, the direct observation of the physicians who examined her, and Dr. Futran's opinion of his patient's capabilities.
The ALJ specifically noted that Dillon "takes care of her two young children, she drives her children to school, she attends school activities, and she can go grocery shopping by herself." (Id.) The ALJ also pointed out that Dr. Futran - who saw plaintiff for a period of approximately six months - opined that his patient could "frequently lift and carry" up to 30 pounds, could "stand and/or walk for up to six hours per day," and had "no limitation in her ability to sit" as long as she was not required to "push and/or pull." (R. 27.) Dr. Futran also recommended that Dillon "start exercising" (R. 23, 295, 301), and wrote that although fibromyalgia can be a "chronic condition," Dillon's prognosis was "excellent." (R. 290.) Moreover, although plaintiff stated that she used a cane to walk (R. 203), and required help getting dressed (R. 197, 280), during her consultative internal medical exam with Dr. Kaci on July 25, 2014, plaintiff "used no assistive devices" and needed "no help changing for her exam." (R. 23, 280.) This is not merely the absence of objective evidence corroborating plaintiff's self-reported limitations; it is direct evidence of activities inconsistent with her testimony.
I am therefore satisfied that the ALJ's credibility determination is supported by substantial evidence in the record, and that the ALJ set forth her reasoning as to plaintiff's credibility with adequate specificity. Applying the "very deferential" standard required here, Brault, 683 F.3d at 448, I cannot conclude that a reasonable factfinder would be required to reach a different conclusion.
C. Physical RFC
As noted above, Dr. Futran opined that Dillon had (unspecified) limitations in pushing and pulling. Dr. Kaci, in contrast, concluded that she had mild limitations in activities requiring frequent neck turning and "reaching up and out with the bilateral shoulders." (R. 282.) The ALJ weighed both opinions favorably, giving "significant" weight to Dr. Futran's views and "substantial" weight to Dr. Kaci's. (R. 27.) However, the ALJ's RFC (R. 22) did not incorporate any limitations on pushing, pulling, neck turning, or reaching. Plaintiff contends that this was error, arguing that remand is required when the ALJ "fails to explain the inconsistency of a favorably weighted opinion with [her] RFC determination." Pl. Mem. at 13. See also Williams v. Colvin, 2015 WL 1223789, at *10 (S.D.N.Y. Mar. 17, 2015) (remanding where "the ALJ failed to explain his selective adoption of Dr. Corvalan's statements when he omitted Williams's neck limitations" from his physical RFC); Petersen v. Astrue, 2 F. Supp. 3d 223, 235 (N.D.N.Y. 2012) (remanding where "the ALJ conclude[d], on the one hand, that Plaintiff was capable of performing sedentary work while affording 'great weight' to a medical opinion contradicting that finding on the other").
The Commissioner points out that Dr. Futran did not find that the plaintiff was limited with regard to neck turning or reaching, while Dr. Kaci did not prescribe any limitations with regard to pushing and pulling. Def. Mem. (Dkt. No. 23), at 17. Since Dr. Futran and Dr. Kaci offered "conflicting evidence" as to these potential limitations, the Commissioner argues, the ALJ was free to give "greater weight" to Dr. Futran's opinion, which in turn meant that she did not err in formulating an RFC with no limitations on neck turning or reaching. Id. As for pushing and pulling, the Commissioner notes that such limitations "will generally have little effect on the unskilled sedentary occupational base." Id. (quoting Social Security Ruling 96-9p, 1996 WL 374185, at *6 (July 2, 1996). Therefore, the Commissioner concludes, there was no need for the ALJ to incorporate an express pushing/pulling limitation into her physical RFC, which already limited plaintiff to sedentary exertional work. Id.
As to pushing and pulling, I agree with the Commissioner. All three jobs relied on by the ALJ at Step 5 involve only "a negligible amount of force frequently . . . to lift, carry, push, pull, or otherwise move objects, including the human body." See DICOT 209.587-010 ADDRESSER; DICOT 739.687-182 TABLE WORKER; DICOT 735.687-034 STONE SETTER (emphasis added). Nor, for that matter, do any of them appear to require significant neck turning. Thus, Dillon "does not show why the ALJ's failure to discuss her restrictions in [these] area[s] is pertinent to the ALJ's RFC assessment." Williams, 2015 WL 1223789, at *9.
However, all three jobs require frequent reaching and handling ("frequent" meaning "[e]xists from 1/3 to 2/3 of the time"). See, e.g., DICOT 209.587-010 ADDRESSER. Moreover, the ALJ expressly acknowledged that Dr. Kaci's opinion, on which she "placed substantial weight," including "mild limitations to squatting and reaching up and out with the bilateral shoulders." (R. 27.) The ALJ incorporated the squatting limitation into her physical RFC, but omitted any limits on reaching. (R. 22.)
The Commissioner speculates that the ALJ must have "reconciled conflicting evidence in Dr. Futran's favor" and based her physical RFC on his opinion rather than Dr. Kaci's. Def. Mem. at 17. Certainly an ALJ is "entitled to weigh the evidence and resolve genuine conflicts in the medical evidence." Williams, 2015 WL 1223789, at *8. An ALJ is also entitled to adopt an RFC that does not "perfectly correspond with any of the opinions of medical sources cited in [her] opinion." Atta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013). But she may not do so sub silentio, without explanation. "If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *7 (1996) (emphasis added). Here, the ALJ expressed no reservations about any aspect of Dr. Kaci's opinion, and did not even acknowledge - much less provide an explanation for - her formulation of an RFC that conflicted with a potentially significant portion of that opinion. Remand is therefore appropriate, so that the ALJ can either formulate an RFC that is fully consistent with Dr. Kaci's opinion or "explain why" she determined not to do so.
D. Mental RFC
An ALJ is required to give controlling weight to the opinion of a claimant's treating physician so long as that the opinion is well-supported by medical findings and is not inconsistent with other evidence in the record. 20 C.F.R. § 404.1527(c)(2) (2012). The treating physician rule recognizes that a claimant's treating physician is "most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." Id. See also Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983) ("The opinion of a treating physician is accorded extra weight because the continuity of treatment he provides and the doctor/patient relationship he develops place him in a unique position to make a complete and accurate diagnosis of his patient.").
Where mental health treatment is at issue, the treating physician rule takes on added importance. Rodriguez v. Astrue, 2009 WL 637154, at *26 (S.D.N.Y. Mar. 9, 2009). "A mental health patient may have good days and bad days; [he] may respond to different stressors that are not always active. Thus, the longitudinal relationship between a mental health patient and her treating physician provides the physician with a rich and nuanced understanding of the patient's health that cannot be readily achieved by a single consultative examination." Bodden v. Colvin, 2015 WL 8757129, at *9 (S.D.N.Y. Dec. 14, 2015). See also Richardson v. Astrue, 2009 WL 4793994, at *7 (S.D.N.Y. Dec. 14, 2009) ("Because mental disabilities are difficult to diagnose without subjective, in-person examination, the treating physician rule is particularly important in the context of mental health.") (internal citations and quotation marks omitted).
In this Circuit, the treating physician rule is robust, though not unassailable:
Before an ALJ can give a treating physician's opinion less than controlling weight, the ALJ must apply various factors to determine the amount of weight the opinion should be given. These factors include: (1) the length of the treatment relationship and the frequency of examination, (2) the nature and extent of the treatment relationship, (3) the medical support for the treating physician's opinion, (4) the consistency of the opinion with the record as a whole, (5) the physician's level of specialization in the area and (6) other factors that tend to support or contradict the opinion.Norman v. Astrue, 912 F. Supp. 2d 33, 73 (S.D.N.Y. 2012). See also 20 C.F.R. §§ 404.1527(c)(2) - (c)(6) (2012) (listing factors).
"Even where a treating physician's opinion is not entitled to 'controlling weight,' it is generally entitled to 'more weight' than the opinions of non-treating and non-examining sources." Maroulis v. Colvin, 2017 WL 7245388, at *20 (S.D.N.Y. Jan. 18, 2017); see also Social Security Ruling 96-2p, 1996 WL 374188, at *4 (July 2, 1996) ("In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight."). A consultative physician's opinion, by contrast, is generally entitled to "little weight." Giddings v. Astrue, 333 Fed. App'x 649, 652 (2d Cir. 2009) (internal quotation marks omitted). This is because consultative examinations "are often brief, are generally performed without benefit or review of the claimant's medical history, and, at best, only give a glimpse of the claimant on a single day. Often, consultative reports ignore or give only passing consideration to subjective symptoms without stated reasons." Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 55 (2d Cir. 1992) (internal quotation marks and citation omitted).
The ALJ also has a duty to "affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation marks omitted). This includes an obligation on the part of the ALJ to seek "additional information" from a treating physician if her report "is believed to be insufficiently explained, lacking in support, or inconsistent with the physician's other reports." Ureña-Perez v. Astrue, 2009 WL 1726217, at *29 (S.D.N.Y. Jan. 6, 2009), report and recommendation adopted as modified, 2009 WL 1726212 (S.D.N.Y. June 18, 2009). Where the gaps or inconsistencies concern a treating physician's opinion, and in particular the opinion of a treating psychologist, this duty is especially crucial. See, e.g., Craig v. Commissioner of Social Security, 218 F. Supp. 3d 249, 268 (S.D.N.Y. 2016) ("The duty to develop the record is particularly important where an applicant alleges he is suffering from a mental illness, due to the difficulty in determining whether these individuals will be able to adapt to the demands or 'stress' of the workplace.") (quoting Merriman v. Commissioner of Social Security, 2015 WL 5472934, at *19 (S.D.N.Y. Sept. 16, 2015)); Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008) ("[A]n ALJ cannot reject the treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record."). Thus, "[t]he duty to develop the record goes hand in hand with the treating physician rule." Batista v. Barnhart, 326 F. Supp. 2d 345, 353 (E.D.N.Y. 2004).
In this case, ALJ Singh acknowledged that Dr. King was Dillon's long-term treating psychologist, but rejected her opinion, seemingly in toto, primarily because "there are no treating notes of record to support Dr. King's conclusion that the claimant could not even meet the basic mental demands of unskilled work." (R. 29.) The ALJ added that Dr. King's medical source statement was "not consistent with the narrative opinion that she subsequently rendered" (id.), and that her opinion was inconsistent with that of the state agency reviewer, Dr. Anderson. (Id.) This was error.
First, the ALJ could not, consistent with her duty to develop the record, reject a treating psychologist's opinion based on the absence of underlying treating notes without making at least some effort to obtain those treating notes. As noted above, the ALJ was under an affirmative obligation to seek "additional information" from Dr. King if she believed her report to be "insufficiently explained," or "lacking in support," or "inconsistent with the physician's other reports." Ureña-Perez, 2009 WL 1726217, at *29. See Gabrielsen v. Colvin, 2015 WL 4597548, at *7 (S.D.N.Y. July 30, 2015) (ALJ erred in not re-contacting a treating physician about perceived inconsistencies between his reports and his treating notes where the physician "would best be able to resolve" them); Cancel v. Colvin, 2015 WL 865479, at *5 (S.D.N.Y. Mar. 2, 2015) (ALJ erred in not re-contacting treating sources "that would substantiate their conclusions or resolve perceived inconsistencies."). Here, the ALJ cited each of the three Ureña-Perez factors, (R. 28-29) yet there is no indication that she made any effort to resolve them short of simply rejecting the treating psychologist's opinion out of hand.
I recognize that Dillon's counsel did ask Dr. King for her treatment notes (R. 340), only to be informed, by Dr. King, that "I do not provide" notes. (R. 341.) However, that was not Dr. King's decision to make. See generally N.Y. Pub. Health Law § 18 ("Access to Patient Information"). Moreover, while an ALJ may rely on the claimant's counsel in the first instance to obtain missing treating records, see, e.g., Rivera v. Commissioner of Social Sec., 728 F. Supp. 2d 297, 330 (S.D.N.Y.2010) ("Courts do not necessarily require ALJs to develop the record by obtaining additional evidence themselves, but often permit them to seek it through the claimant or his counsel."), she must nevertheless take "independent steps to complete the record" if necessary. Sotososa v. Colvin, 2016 WL 6517788, at *4 (W.D.N.Y. Nov. 3, 2016) (citing Jordan v. Comm'r of Soc. Sec., 142 Fed. App'x 542, 543 (2d Cir. 2005) and Frye ex rel. A.O. v. Astrue, 485 Fed. App'x 484, 488 n.2 (2d Cir. 2012)). Thus, courts in our Circuit have frequently found that an ALJ does not satisfy her duty to develop the record by relying on the claimant's attorney to obtain the missing records. See Glast v. Astrue, 2013 WL 5532696, at *10 (E.D.N.Y. Sept. 30, 2013) (ALJ did not satisfy his duty to develop the record where he asked counsel to obtain additional evidence and left the record open for that purpose for two weeks); Curtis v. Astrue, 2012 WL 6098258, at *4 (N.D.N.Y. Oct. 30, 2012) (ALJ did not satisfy his duty to develop the record even though counsel promised to obtain the relevant records); Newsome v. Astrue, 817 F. Supp. 2d 111, 137 (E.D.N.Y. 2011) ("The fact that the ALJ requested additional information from the Plaintiff's attorney and did not receive that information does not relieve the ALJ of his duty to fully develop the record.").
Section 18(2)(d) states that a health care practitioner must, on the written request of a "qualified person" (including a patient), furnish "a copy of any patient information requested." Subsection (1)(e) exempts the "personal notes and observations" of the practitioner from the statutory disclosure requirement, but that term is defined narrowly: "'Personal notes and observations' means a practitioner's speculations, impressions (other than tentative or actual diagnosis) and reminders, provided such data is maintained by a practitioner." Pub. Health Law § 18(1)(f). This definition would not appear to exempt, for example, a therapist's routine notes memorializing her communications with her patient. Moreover, the "personal notes" exception is "rendered inoperable" once "litigation has commenced." Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 636 (E.D.N.Y. 1997) (requiring plaintiff's treating psychiatrist and psychologist to disclose their notes in litigation brought by plaintiff to obtain disability insurance benefits, notwithstanding plaintiff's own efforts to prevent disclosure of the notes).
At the time of the plaintiff's hearing, the Social Security Administration promised claimants that it would "make every reasonable effort," on request, "to help you get medical reports from your own medical sources." 20 C.F.R. § 404.1512(d)(1) (2015). "Every reasonable effort" means asking at least twice. 20 C.F.R. § 404.1512(d)(1) (2015). The agency also has subpoena power, see 42 U.S.C. § 405(d), but is not required to subpoena medical records if they are not received following two ordinary requests. Gonell De Abreu v. Colvin, 2017 WL 1843103, at *5 (E.D.N.Y. May 2, 2017); see also 20 C.F.R. § 404.950(d)(1) (2013).
In this case, the ALJ neither sought Dr. King's treating notes herself nor asked Dillon to do so. Instead, she took the record as she found it - including the lack of treating notes from Dr. King - and expressly relied on that significant gap to reject a presumptively "controlling" opinion from plaintiff's treating psychologist. This requires remand. See Concepcion v. Colvin, 2014 WL 1284900, at *13 (S.D.N.Y. March 31, 2014) (quoting Miller v. Barnhart, 2004 WL 2434972, at *8) ("failure to develop conflicting medical evidence from a treating physician is legal error requiring remand").
Second, the ALJ failed to explain how, if at all, Dr. King's medical source statement was inconsistent with "the narrative opinion that she subsequently rendered on December 15, 2015." (R. 29.) The ALJ did not point to any such inconsistencies. Nor are they immediately apparent to the Court. To be sure, the narrative statement does not directly support Dr. King's opinion as to Dillon's ability to perform each of the work-related activities covered by the medical source statement (for example, that plaintiff's ability to deal with the public, deal with work stress, maintain attention or concentration, relate predictably in social situations, and demonstrate reliability was "poor or none"). (R. 343-42.) Instead, the narrative statement focuses on plaintiff's evolving diagnosis (originally dysthymic disorder, to which Dr. King later added a diagnosis of PTSD) and explains what Dr. King viewed as the underlying psychodynamics of plaintiff's mental impairments (a "damaged and inadequate" sense of self which caused plaintiff to "personalize, catastrophize, [and] make erroneous assessments and judgments of herself and others"). (R. 341.) However, aside from a vague reference to plaintiff having "made some progress" in certain areas (id.), nothing in the narrative statement contradicts Dr. King's ultimate opinion as to plaintiff's capabilities; it merely fails to provide the support that an ALJ would ordinarily expect to find in a psychologist's treating notes. Thus, it was error for the ALJ to rely on the narrative report alone - in the absence of the missing notes - as a reason for discounting Dr. King's opinion.
Finally, it was improper for the ALJ to reject the opinion of plaintiff's treating psychologist on the ground that it was inconsistent with the opinion of the non-examining state agency consultant, Dr. Anderson. Not only was there no "longitudinal relationship" between Dr. Anderson and the plaintiff; the state agency consultant never laid eyes on her. Moreover, Dr. Anderson reviewed the file on August 12, 2014, one year and three months before Dr. King submitted her medical source statement and her narrative. (R. 83, 341-43.) Thus, the only psychiatric evidence available to Dr. Anderson was the report of Dr. Kronk, prepared on July 25, 2015, after her consultative examination of the plaintiff. (R. 284.)
In assigning only "some weight" to Dr. Kronk's opinion, the ALJ explained that as a consulting examiner, Dr. Kronk was limited to a "one-time examination" of the plaintiff (R. 28), during which - according to the ALJ - she relied too heavily on the plaintiff's "subjective report regarding the history of her symptoms and functional limitations." (Id.) Standing alone, the ALJ's evaluation of Dr. Kronk's report is not necessarily error. See Bodden, 2015 WL 8757129, at *9 (the "rich and nuanced understanding of the patient's health" obtainable from her treating physician "cannot be readily achieved by a single consultative examination").
In assigning "the most weight" to the opinion of Dr. Anderson, the ALJ explained that the state agency consultant had access to all of the "available evidence of record" (R. 27.) In fact, as noted above, very little psychiatric evidence was "available" at the time of Dr. Anderson's review, and the evidence that did exist, in the ALJ's own estimation, was only worthy of "some" weight. Under the circumstances, it was error to give Dr. Anderson's opinion more weight than those of either the consulting examiner whose report Dr. Anderson reviewed or the plaintiff's treating psychologist. On remand, the ALJ should make reasonable efforts to obtain Dr. King's treating notes and should then re-evaluate the opinion evidence concerning plaintiff's mental impairments against a full record, paying due deference to the treating physician rule.
VI. CONCLUSION
For the foregoing reasons, I respectfully recommend that plaintiff's motion be GRANTED, that the Commissioner's motion be DENIED, and that this action be REMANDED to the Commission for further proceedings consistent with this Report and Recommendation. Dated: New York, New York
September 7, 2018
/s/ _________
BARBARA MOSES
United States Magistrate Judge
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS
TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). See also Fed. R. Civ. P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Paul Engelmayer at 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Engelmayer. Failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).