Opinion
22 Civ. 5633 (KMK) (AEK)
08-15-2023
DENISE MANCUSO, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
TO: THE HONORABLE KENNETH M. KARAS, U.S.D.J.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE UNITED STATES MAGISTRATE JUDGE
Plaintiff Denise Mancuso brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Kilolo Kijakazi, Acting Commissioner of Social Security (the “Commissioner”), which denied her application for a period of disability and disability insurance benefits (“DIB”) pursuant to the Social Security Act (the “Act”). ECF No. 1. Currently pending before the Court are Plaintiff's motion, and the Commissioner's cross-motion, for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ECF Nos. 12, 19. For the reasons that follow, I respectfully recommend that Plaintiff's motion (ECF No. 12) be DENIED, that the Commissioner's motion (ECF No. 19) be GRANTED, and that judgment be entered in favor of the Commissioner.
BACKGROUND
I. Procedural Background
On December 16, 2020, Plaintiff filed an application for DIB, alleging November 1, 2019, as the onset date of her disability, AR 93; she subsequently amended the alleged onset date to November 5, 2020, AR 39-40. In her initial filing, Plaintiff claimed she was disabled due to “low back (right) pain lumbar and discs” and left shoulder pain. AR 267. After the Social Security Administration (the “SSA”) denied her claim both initially, AR 93, 120-33, and upon reconsideration, AR 111, 135-46, Plaintiff requested a hearing before an administrative law judge (“ALJ”), AR 147-48. An administrative hearing was held on November 30, 2021 before ALJ Dennis G. Katz, during which Plaintiff was represented by counsel; both Plaintiff and vocational expert (“VE”) Brian Daly testified at the hearing. AR 34-58.
Citations to “AR” refer to the certified copy of the administrative record filed by the Commissioner. ECF No. 11.
Plaintiff amended her disability onset date to November 5, 2020 because her previous application for DIB was denied in a decision issued by Administrative Law Judge Michael J. Stacchini on November 4, 2020, and that denial of benefits covered the period from June 28, 2019 through November 4, 2020. AR 19, 39-40; see AR 62-70 (November 4, 2020 decision).
ALJ Katz issued a decision on January 6, 2022, finding that Plaintiff was not disabled within the meaning of the Act from the alleged onset date of November 5, 2020, through the date of the decision. AR 19-28. Plaintiff subsequently filed a request for review of the ALJ's decision with the SSA's Appeals Council, which was denied on May 4, 2022. AR 1-6. That made the ALJ's January 6, 2022, decision the final decision of the Commissioner. The instant lawsuit, seeking judicial review of ALJ Katz's decision, was filed on July 1, 2022. ECF No. 1.
II. Testimonial, Medical, and Vocational Evidence
Plaintiff has provided a summary of the testimonial, medical, and vocational evidence contained in the administrative record, which has essentially been adopted by the Commissioner. See ECF No. 13 (“Pl.'s Mem.”) at 2-8; ECF No. 20 (“Def.'s Mem.”) at 3. Based on an independent and thorough examination of the record, the Court finds that Plaintiff's summary of the evidence is largely comprehensive and accurate. Accordingly, the Court adopts the factual background as set forth by Plaintiff and discusses the evidence in the record in more detail to the extent necessary to determine the issues raised in this case. See, e.g., Banks v. Comm'r of Soc. Sec., No. 19-cv-929 (AJN) (SDA), 2020 WL 2768800, at *2 (S.D.N.Y. Jan. 16, 2020), adopted by 2020 WL 2765686 (S.D.N.Y. May 27, 2020).
APPLICABLE LEGAL PRINCIPLES
I. Standard of Review
The scope of review in an appeal from a Social Security disability determination involves two levels of inquiry. First, the court must review the Commissioner's decision to assess whether the Commissioner applied the correct legal standards when determining that the plaintiff was not disabled. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). “‘Failure to apply the correct legal standards is grounds for reversal.'” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
Second, the court must evaluate whether the Commissioner's decision was supported by substantial evidence. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 106 (quotation marks omitted). The “substantial evidence” standard of review is “very deferential,” and it is not the function of the reviewing court “to determine de novo whether a plaintiff is disabled.” Schillo v. Kijakazi, 31 F.4th 64, 74 (2d Cir. 2022) (quotation marks omitted). To determine whether a decision by the Commissioner is supported by substantial evidence, courts must “examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Id. (quotation marks omitted). “The substantial evidence standard means once an ALJ finds facts, [courts] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Id. (quotation marks omitted) (emphasis in original). “‘If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld.'” Id. (quoting McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014)).
II. Determining Disability
The Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). An individual is disabled under the Act if he or she suffers from an impairment which is “of such severity that he [or she] is not only unable to do his [or her] previous work but cannot . . . engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). “‘[W]ork which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” Id.
Regulations issued pursuant to the Act set forth a five-step process that the Commissioner must follow in determining whether a particular claimant is disabled. See 20 C.F.R. § 404.1520(a)(4). The Commissioner first considers whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i), (b). If the claimant is engaged in substantial gainful activity, then the Commissioner will find that the claimant is not disabled; if the claimant is not engaged in substantial gainful activity, then the Commissioner proceeds to the second step, at which the Commissioner considers the medical severity of the claimant's impairments. 20 C.F.R. § 404.1520(a)(4)(ii). A severe impairment is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant suffers from any severe impairment, the Commissioner at step three must decide if the impairment meets or equals a listed impairment; listed impairments are presumed severe enough to render an individual disabled, and the criteria for each listing are found in Appendix 1 to Part 404, Subpart P of the SSA regulations. 20 C.F.R § 404.1520(a)(4)(iii), (d).
If the claimant's impairments do not satisfy the criteria of a listed impairment at step three, the Commissioner must then determine the claimant's residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). A claimant's RFC represents “the most [he or she] can still do despite [his or her] limitations.” 20 C.F.R. § 404.1545(a)(1). After determining the claimant's RFC, the Commissioner proceeds to the fourth step to determine whether the claimant can perform his or her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv), (e)-(f). If it is found that the claimant cannot perform his or her past relevant work, the Commissioner proceeds to step five to consider the claimant's RFC, age, education, and work experience to determine whether he or she can adjust to other work. 20 C.F.R. § 404.1520(a)(4)(v), (g). To support a finding that the claimant is disabled, there must be no other work existing in significant numbers in the national economy that the claimant, in light of his or her RFC and vocational factors, is capable of performing. 20 C.F.R. § 404.1560(c).
The claimant bears the burden of proof on the first four steps of this analysis. DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998). If the ALJ concludes at an early step of the analysis that the claimant is not disabled, he or she need not proceed with the remaining steps. Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000).
DISCUSSION
Plaintiff seeks to reverse the Commissioner's decision and have the matter remanded to the SSA for further administrative proceedings. She contends that (i) the ALJ erred with respect to the handling of the hearing testimony by the VE; (ii) the RFC is not supported by substantial evidence; (iii) the ALJ erred in his evaluation of Plaintiff's symptoms under SSR 16-3p; and (iv) the ALJ failed to develop the record. See Pl.'s Mem. at 10-23; ECF No. 21 (“Reply Mem.”). The Commissioner seeks to have her final decision affirmed; she maintains that the ALJ's decision is based upon application of the correct legal standards and is supported by substantial evidence. Def.'s Mem. at 10-18.
As discussed below, the Court finds that the ALJ applied the correct legal standards and that his decision was supported by substantial evidence, and therefore respectfully recommends that Plaintiff's motion be denied, that the Commissioner's motion be granted, and that judgment be entered in favor of the Commissioner.
I. The ALJ's Decision
ALJ Katz employed the five-step analysis described above and issued a decision finding that Plaintiff was not disabled from the amended alleged onset date of November 5, 2020, through the date of the decision, January 6, 2022. AR 19-28. First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 5, 2020. AR 21-22. Second, the ALJ determined that Plaintiff had the severe impairments of degenerative disc disease of the lumbar spine, a left shoulder impingement, osteoarthritis with bursitis and tendonitis, and sacroiliac joint arthropathy. AR 22. Third, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
According to the ALJ, Plaintiff retained the RFC to perform light work, as defined in 20 C.F.R. § 404.1567(b), and “can perform frequent reaching bilaterally.” Id. ALJ Katz determined Plaintiff's RFC by applying the two-step framework described in 20 C.F.R. § 404.1529 and SSR 16-3p. AR 22-26. He concluded that although Plaintiff's medically determinable impairments “could reasonably be expected to cause some of the alleged symptoms,” her “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record ....” AR 23-24. The ALJ provided several reasons for his conclusion, including that: (1) the medical treatment Plaintiff was receiving for her impairments since the amended alleged onset date “has been conservative and routine”; (2) the clinical findings from Plaintiff's “routine follow up exams have shown essentially stable functioning while maintaining her conservative medical treatment”; (3) Plaintiff's reported activities of daily living “are not as limited as one would expect” given her allegations of total disability; (4) the record did not contain “any non-conclusory opinions from any treating or examining source indicating that [Plaintiff] is currently disabled or more disabled than” the ALJ's RFC determination; and (5) Plaintiff's hearing testimony “shows that she is capable of substantial work activities.” AR 24-25.
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b).
The ALJ specified that the first step in this process is to determine “whether there is an underlying medically determinable physical or mental impairment(s)i.e., an impairment(s) that can be shown by medically acceptable clinical or laboratory diagnostic techniques-that could reasonably be expected to produce the claimant's pain or other symptoms.” AR 23. The second step in the process, “once an underlying physical or mental impairment(s) that could reasonably be expected to produce the claimant's pain or other symptoms has been shown,” is for the ALJ to “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's work-related activities.” Id. “[W]henever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the [ALJ] must consider other evidence in the record to determine if the claimant's symptoms limit the ability to do work-related activities.” Id.
ALJ Katz also considered the medical opinion evidence in the record, noting that he could not “defer or give any specific evidentiary weight, including controlling weight, to any prior administrative medical finding(s) or medical opinion(s), including those from medical sources.” AR 26. He found the “conclusory medical opinion” of Plaintiff's treating physician Dr. Thomas Booker “unpersuasive, as it is vague and not supported by Dr. Booker's own clinical records” and “not consistent with” Plaintiff's hearing testimony. Id. ALJ Katz deemed the opinion of consultative examiner Dr. Paul Mercurio to be “partially persuasive”; he found Dr. Mercurio's assessments of mild limitations in standing, walking, and repetitive climbing, and moderate limitations in bending, to be “consistent with the totality of the medical findings in the record,” but concluded that Dr. Mercurio's assessment of marked limitations in lifting, carrying, and kneeling, “while consistent with [his] one time examination, [was] not well supported by the record as a whole.” Id. ALJ Katz found the opinions of the State agency medical consultants, Dr. M. Vazquez Gonzalez and Dr. R. Mohanty, to be persuasive to the extent that they limited Plaintiff to light exertional work, since that was “consistent with [Plaintiff's] stable clinical findings since the amended onset date ....” AR 26-27. Dr. Vazquez Gonzalez additionally opined that Plaintiff could only “frequently climb ramps/stairs, never climb ladders/ropes/scaffolds, occasionally stoop, knee [sic], crouch, and crawl, and frequently reach overhead with the left upper extremity,” AR 26, and Dr. Mohanty additionally opined that Plaintiff could only “occasionally climb, balance, stoop, kneel, crouch, and crawl.” AR 27. ALJ Katz found the “limitations on the use of the left upper extremity” to be “persuasive, as these are consistent with the [Plaintiff's] medical history,” but found the “postural limitations as assessed [to be] less persuasive, given the[] [Plaintiff's] treatment records that show no signs of significant neurovascular or motor deficit in the lower extremities.” Id.
At the fourth step, the ALJ found that Plaintiff was able to perform her past relevant work as a head teller, a teller, and a cashier. AR 27. Accordingly, ALJ Katz did not to proceed to the fifth step of the analysis. Rather, he concluded at this point that Plaintiff was not disabled from the amended alleged onset date, November 5, 2020, through the date of the decision, January 6, 2022. AR 28.
II. The ALJ's Handling of the Vocational Expert Testimony
Plaintiff contends first that ALJ Katz erred because he failed to ask VE Daly whether his testimony was consistent with the Dictionary of Occupational Titles (“DOT”). Pl.'s Mem. at 1011. As set forth in SSR 00-4p,
[w]hen there is an apparent unresolved conflict between VE . . . evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE . . . evidence to support a determination or decision about whether the claimant is disabled. At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency.SSR 00-4p, 2000 WL 1898704, at *2 (S.S.A. Dec. 4, 2000). The Second Circuit explained in Lockwood v. Comm'r of Soc. Sec. Admin., 914 F.3d 87 (2d Cir. 2019), that SSR 00-4p “requires the Commissioner to ‘obtain a reasonable explanation' for any ‘apparent'-even if non-obvious-conflict between the Dictionary and a vocational expert's testimony.” 914 F.3d at 92 (quoting SSR 00-4p, 2000 WL 1898704, at *2) (emphasis in original); see Salati v. Saul, 415 F.Supp.3d 433, 448 (S.D.N.Y. 2019) (“Under this SSR, a conflict exists between the testimony of a VE and the DOT when the two disagree in categorizing and describing the requirements of the job as performed in the national economy.”).
Here, ALJ Katz only asked VE Daly questions about how he would classify Plaintiff's past relevant work under the DOT-he did not ask the VE to identify potential jobs in the national economy that Plaintiff would be able to perform given a hypothetical set of parameters based on Plaintiff's RFC. See AR 54-56. In response to the ALJ's questions, VE Daly explained that Plaintiff's prior work would be classified as a head teller, a regular teller, and a cashier; provided the DOT codes for each position; and stated that each of those positions would be classified as a light physical demand level. AR 54-55. Plaintiff does not identify any conflict whatsoever between this limited testimony from the VE and the DOT. Because there was no “apparent” conflict, any purported error in the failure to ask the VE whether the VE's testimony was in conflict with the DOT was harmless, and does not require remand. See Salati, 415 F.Supp.3d at 448 (citing cases). Unlike in Lockwood, ALJ Katz did not ask VE Daly to identify jobs that would be appropriate for an individual with Plaintiff's RFC, and VE Daly did not offer any opinion as to whether Plaintiff, in light of the ALJ's RFC determination, would be able to perform her past relevant work. In fact, the VE was not made aware of any potential limitation on Plaintiff's ability to perform the full range of light work.
Independent of the VE's testimony, however, ALJ Katz himself introduced some error at step four by concluding that Plaintiff, despite the limitation in the RFC that she could perform “frequent reaching bilaterally,” nevertheless is “able to perform her past work as a Head Teller, a Teller, and a Cashier as actually and generally performed.” AR 27. As Plaintiff points out, and as the Commissioner acknowledges, Plaintiff, with the RFC limitation assessed by ALJ Katz, actually could not perform the jobs of teller and cashier as described in the DOT, since both jobs require “constant” reaching, and ALJ Katz found that Plaintiff was only capable of “frequent” reaching. See Pl.'s Mem. at 21 & App. A; Def.'s Mem. at 18. But this error is also harmless, because Plaintiff concedes that “the head teller position requires only ‘frequent' reaching and thus is within the RFC and supportive of the step four conclusion.” Pl.'s Mem. at 21; see Def.'s Mem. at 18; Dictionary of Occupational Titles, 211.132-010 (Teller, Head), 1991 WL 671830. Therefore, ALJ Katz's conclusion at step four that Plaintiff is capable of performing past relevant work was correct-even though Plaintiff is only capable of performing one such job, rather than three. And under any reading of VE Daly's hearing testimony, there was no apparent conflict between the testimony and the DOT with respect to Plaintiff's past relevant work as a head teller. Plaintiff, who “bears the burden of proving that she cannot return to her past relevant work, either as it is performed in the national economy, or as she actually performed it,” Reices-Colon v. Astrue, 523 Fed.Appx. 796, 799 (2d Cir. 2013) (summary order) (emphasis in original), cites no evidence to overcome the ALJ's step four conclusion with respect to the head teller position.
Plaintiff does assert several challenges to the RFC determination upon which the ALJ's step four conclusion is based. Those challenges are addressed below.
Plaintiff also asserts that her due process rights were violated because the ALJ never asked her counsel whether he had any objections to VE Daly testifying at the hearing, or whether counsel wanted to conduct a voir dire examination of the VE. See Pl.'s Mem. at 11. It is true after swearing in VE Daly, the ALJ began to question VE Daly without asking any questions about his qualifications. AR 54. But the VE's curriculum vitae was part of the administrative record, which would have enabled the ALJ to confirm the VE's experience and expertise had he had any concerns about either. AR 353-55. Moreover, Plaintiff's counsel had the opportunity to, and did, pose a hypothetical question to VE Daly, without objecting to or inquiring further about his qualifications. AR 57. The failure to raise any objection to the VE's qualifications at any time before bringing this federal action, either during the administrative hearing or before the SSA Appeals Council, serves to waive any claim of error on this basis. See Harvey v. Astrue, No. 05-cv-1094 (NAM), 2008 WL 4517809, at *14-15 (N.D.N.Y. Sept. 29, 2008) (“Plaintiff's counsel did not challenge the basis for the vocational expert's testimony and failed to raise any objection to the conduct of the ALJ until now. Accordingly, the objections are forfeited.”); Haskins v. Comm'r of Soc. Sec., No. 05-cv-292 (DNH) (RFT), 2008 WL 5113781, at *16 (N.D.N.Y. Nov. 25, 2008) (“Plaintiff's failure to raise this issue before the ALJ effectively waived any challenge to the VE's qualifications, particularly in light of the opportunity he was given to question the VE after she had finished answering the ALJ's hypothetical questions.”).
In sum, ALJ Katz's handling of the VE's testimony does not provide a basis for remand.
III. The ALJ Did Not Fail to Fully Develop the Record
Plaintiff also seeks remand based on ALJ Katz's supposed failure to obtain an opinion from Plaintiff's treating physician, Dr. Booker, regarding Plaintiff's functional abilities-or at least to receive an explanation of the basis for Dr. Booker's opinion that Plaintiff was limited to working only four hours per day. Pl.'s Mem. at 22-23.
“Initially, the Court must be satisfied that the record is fully developed before determining whether the Commissioner's decision is supported by substantial evidence.” Disla v. Comm'r of Soc. Sec., No. 20-cv-6663 (KMK) (JCM), 2022 WL 1063753, at *13 (S.D.N.Y. Feb. 4, 2022), adopted by 2022 WL 1063067 (S.D.N.Y. Mar. 30, 2022). A remand is not warranted based on the absence of a medical source statement from a treating physician if “the record contains sufficient evidence from which an ALJ can assess the petitioner's [RFC].” Tankisi v. Comm'r of Soc. Sec., 521 Fed.Appx. 29, 33-34 (2d Cir. 2013) (summary order). Indeed, “where there are no obvious gaps in the administrative record, and where the ALJ already possesses a complete medical history, the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (quotation marks omitted); see also Janes v. Berryhill, 710 Fed.Appx. 33, 34 (2d Cir. 2018) (summary order) (“The ALJ is not required to develop the record any further when the evidence already presented is adequate for the ALJ to make a determination as to disability.”) (cleaned up); Pellam v. Astrue, 508 Fed.Appx. 87, 90 (2d Cir. 2013) (summary order) (ALJ had no “further obligation to supplement the record by acquiring a medical source statement from one of the treating physicians” where ALJ “had all of the treatment notes from [the plaintiff's] treating physicians” and where ALJ's RFC assessment was supported by consultative examiner's opinion).
Here, the administrative record appears to contain Plaintiff's complete medical history for both before and during the relevant time period, including, from the relevant time period, all of the records from Dr. Booker's and from treating physician Dr. Jonathan Rudnick's treatment of Plaintiff, as well as from Plaintiff's physical therapy appointments. See AR 519-23, 577-90, 747-64, 867-70, 882-86, 890, 895-97. The administrative record also includes from the relevant time period the reports from the independent medical and consultative examinations, AR 435-48, 741-46, and the report from a pelvic MRI, AR 892-93. During the hearing before ALJ Katz, Plaintiff's counsel stated that he had requested, and was waiting to receive, additional treatment records from Dr. Booker, and that he had only requested treatment records and not a medical opinion; ALJ Katz agreed to accept these additional treatment records. Def.'s Mem. at 15; see AR 37 (“ALJ: . . . Now do we have a complete medical record? ATTY: The medical records that we are waiting for are from Dr. Booker for the past six months.”), 367 (December 14, 2021 letter from Plaintiff's counsel to ALJ Katz: “At the hearing held November 30, 2021 the record was kept open for the production of medical records from Dr. Thomas Booker. Under separate cover this report of November 26, 2021 was produced, therefore the record is now complete.”). For all of these reasons, the Court finds that there are no obvious gaps in the record that required ALJ Katz to seek additional information from Dr. Booker. See Disla, 2022 WL 1063753, at *13 (finding no obvious gaps in the record where “Plaintiff's attorney stated at both hearings that he had no objections to the evidence on the grounds that there were gaps in the record”).
Furthermore, ALJ Katz reviewed all of the evidence in the record, including Dr. Booker's treatment records, and explained how the evidence was inconsistent with a finding of greater functional limitations than specified in the RFC determination. In particular, the ALJ explained how Dr. Booker's opinion that Plaintiff could only work four hours per day was “not supported by Dr. Booker's own clinical records.” AR 26 (citing AR 747-64, 895-98). ALJ Katz also reviewed the medical opinions of consultative examiner Dr. Mercurio and State agency medical consultants Drs. Vazquez Gonzalez and Mohanty, AR 26-27; see AR 77-92, 94-110, 742-45, and, as explained in Section IV, infra, reconciled the opinion evidence with the treatment records and other evidence in the record to arrive at an RFC determination that is supported by substantial evidence.
Accordingly, ALJ Katz did not fail to fully develop the record, and this is not a basis for remand.
IV. The ALJ's RFC Determination
Plaintiff contends that ALJ Katz failed to articulate a rationale for his RFC determination, and that the RFC determination is not supported by substantial evidence. Pl.'s Mem. at 13-15. Plaintiff also maintains that the ALJ failed to properly evaluate Plaintiff's symptoms pursuant to SSR 16-3p. Id. at 15-22.
A. Rationale for the RFC / Evaluation of the Medical Opinion Evidence
Plaintiff asserts that ALJ Katz failed to provide an adequate explanation of the rationale for his RFC determination, i.e., that the ALJ failed “to articulate a connection between the evidence [surveyed in the decision] and the RFC ....” Pl.'s Mem. at 14. In arguing that “there is no evidence supportive of the RFC for light work found,” id., Plaintiff points in particular to the discrepancy between the opinions of treating physician Dr. Thomas Booker and consultative examiner Dr. Paul Mercurio and the ALJ's RFC determination. Although not stated explicitly, Plaintiff's challenge is directed at the ALJ's evaluation of the medical opinion evidence.
1. Legal Standard
Because Plaintiff filed her application for DIB after March 27, 2017, her claims are governed by the SSA's current regulations concerning the consideration of medical opinions. See 20 C.F.R. § 404.1520c. “Under the new regulations, a treating doctor's opinion is no longer entitled to a presumption of controlling weight.” Knief v. Comm'r of Soc. Sec., No. 20-cv-6242 (PED), 2021 WL 5449728, at *6 (S.D.N.Y. Nov. 22, 2021) (quotation marks omitted). Rather, an ALJ will neither defer, nor give any specific evidentiary weight, to any medical opinion. 20 C.F.R. § 404.1520c(a). An ALJ must evaluate the persuasiveness of all medical opinions based on the following factors: (1) supportability; (2) consistency; (3) the medical source's relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the medical opinion. 20 C.F.R. § 404.1520c(c)(1)-(5). Supportability and consistency are considered the most important factors in evaluating a medical opinion. 20 C.F.R. § 404.1520c(b)(2); see Knief, 2021 WL 5449728, at *6. With respect to supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). With respect to consistency, “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2). As part of his or her decision, the ALJ must explain how the factors of supportability and consistency were considered. 20 C.F.R. § 404.1520c(b)(2); see Knief, 2021 WL 5449728, at *6. In general, the ALJ may, but is not required to, explain how the other factors were considered.
2. Consideration of the Medical Evidence
Here, the ALJ's survey of the medical evidence in the record demonstrates the basis for his evaluation of the medical opinions. ALJ Katz noted that “the clinical findings from [Plaintiff's] routine follow up exams have shown essentially stable functioning while maintaining her conservative medical treatment.” AR 24. He then proceeded to describe the medical evidence from both immediately before and during the relevant time period.
Plaintiff separately argues that ALJ Katz erred in his evaluation of Plaintiff's subjective complaints under SSR 16-3p. The Court addresses that argument in Section IV.B, infra.
The treatment record for an October 8, 2020 appointment with Dr. Rudnick showed “some tenderness in the left shoulder with decreased range of motion in abduction and lateral rotation and borderline positive apprehension testing,” but “good to full” motor strength in the left upper extremity, a negative Spurling maneuver, and no sensory deficit. Id.; see AR 822-27. ALJ Katz noted that “there is no medical evidence that [Plaintiff's] medical condition changed abruptly the month following the exam or the day after the date the prior ALJ decision was signed.” AR 24 (emphasis in original). In October 2020, Dr. Booker referred Plaintiff for an additional round of physical therapy as result of her ongoing lower back pain, which was aggravated by prolonged sitting and standing. Id.; see AR 672-74.The record of her October 28, 2020 physical therapy visit indicates that Plaintiff's trunk range of motion was reduced by 50 percent and limited by pain, but the range of motion in her bilateral lower extremities was normal. AR 673. Straight leg raise testing was positive on the right, but Plaintiff denied feeling any radiating pain, tingling, or numbness. Id.
The “Spurling maneuver” helps to diagnose cervical radiculopathy, which “occurs when a nerve in your neck is pinched near the area where it branches away from your spinal cord.” See “What Is the Spurling Test?,” available at https://www.healthline.com/health/spurling-test (last viewed 8/11/2023).
ALJ Katz stated that Dr. Booker referred Plaintiff for physical therapy due to ongoing hip pain as well, and that her lower back and hip pain also worsened when she climbed stairs, but neither of these complaints is noted in the record for Plaintiff's physical therapy evaluation cited in the ALJ's decision. See AR 673.
ALJ Katz cited an independent medical examination of Plaintiff's left shoulder injury by Dr. Vito Loguidice, performed on November 20, 2020, which found decreased range of motion but no muscle atrophy or crepitus, normal strength, and a negative impingement sign; the ALJ noted that “[t]his evaluation is persuasive and the findings are consistent with the treating medical record.” AR 24; see AR 439-43. ALJ Katz further explained that Plaintiff's left shoulder was “grossly unchanged” upon examination by Dr. Rudnick in January 2021. AR 24; see AR 847-51.
As regards Plaintiff's lower back pain, the ALJ cited Dr. Booker's treatment records from January and March 2021, noting that while the records indicated marked tenderness over Plaintiff's bilateral sacroiliac joint, there were “no positive trigger points or tenderness in the lumbar paraspinal muscles or hips” and negative straight leg raising tests. AR 25; see AR 751, 756. ALJ Katz cited records for an injection that Plaintiff received in the sacroiliac joint on March 9, 2021, as well as for aquatic physical therapy that Plaintiff was undergoing during this period. AR 25; see AR 747-52, 768-71, 775-80. He noted Plaintiff's report that as of March 9, 2021, i.e., after receiving the injection, she could “stand a lot better and longer.” AR 25; see AR 95, 301. ALJ Katz also cited an updated pelvic MRI from November 2021, which “showed stable degenerative changes at ¶ 5-S1, with unremarkable findings of the sacroiliac joint and hips.” AR 25; see AR 892-93. A treatment record for an office visit with Dr. Booker on November 26, 2021 reflects Plaintiff's decision to proceed with an ablation for her right sacroiliac joint. AR 895-97. As ALJ Katz pointed out, while Dr. Booker “again noted marked tenderness for the sacroiliac joint,” there was “no tenderness in the hip or lumbar paraspinal muscles, full motor strength, and no sensory deficit in the lower extremities.” AR 25; see AR 896-97. At that office visit Plaintiff reported that the pain in her left lower back had “completely resolved.” AR 897.
Despite Plaintiff's statement that she “had to undergo the right sided [radio frequency ablation] shortly before the hearing,” Pl.'s Mem. at 21, there is no medical record evidencing the date on which the ablation procedure was performed and/or whether it was performed during the relevant period, i.e., prior to the issuance of the ALJ's decision. Dr. Booker's treatment record for the November 26, 2021 appointment-four days prior to the hearing before ALJ Katz-states under the heading, “Assessment/Plan,” only that the ablation procedure is “recommend[ed],” AR 897, and elsewhere states that Plaintiff “would like to proceed” with an ablation for her right side sacroiliac joint, AR 895. Plaintiff submitted to the Appeals Council an additional treatment record for a consult on January 25, 2022 with Dr. Bhakti Shah, to whom Plaintiff was referred by Dr. Booker. The record notes that Plaintiff “recently had a[] [radio frequency ablation] in her low back” but “did not feel relief” from it. AR 12-14. The Appeals Council found that because ALJ Katz decided Plaintiff's case through January 6, 2022, this evidence “[did] not relate to the period at issue” and “[did] not affect the decision about whether [Plaintiff was] disabled beginning on or before January 6, 2022.” AR 2.
The ALJ described the findings from the internal medicine examination conducted by consultative examiner Dr. Mercurio on March 5, 2021. AR 25; see 742-45. Plaintiff reported to Dr. Mercurio that her left shoulder was “no longer a problem.” AR 742. Plaintiff walked with a right limp; could not put weight on her heels and toes; and her squat was only one-quarter full. AR 743. But she had a normal stance; used no assistive devices; needed no help getting changed for the exam or getting on and off the exam table; and could rise from the chair without difficulty. Id. Plaintiff had a full range of motion of her lumbar spine, shoulders, and hips, and negative straight leg raise testing bilaterally. AR 744. She also had no sensory deficit; full strength in her upper and lower extremities; intact hand and finger dexterity; and full grip strength bilaterally. Id. ALJ Katz found that Dr. Mercurio's examination “showed medical improvement.” AR 25.
Plaintiff questions the ALJ's conclusion that Dr. Mercurio's examination “showed medical improvement.” See Pl.'s Mem. at 20-21. But as an example, Dr. Mercurio's finding of a full range of motion in both shoulders undoubtedly was an improvement over Dr. Rudnick's assessment of Plaintiff's left shoulder in January 2021. See AR 849 (finding that Plaintiff's left shoulder had “decreased ROM with slight pain in full abduction and lateral rotation”).
ALJ Katz subsequently discussed the medical opinions in the record. See AR 26-27. The ALJ noted the statement from Dr. Booker dated June 28, 2021, in which he opined that as a result of Plaintiff's medical condition, she could work “no longer than 4 hours a day.” AR 26; see AR 882. ALJ Katz cited to Dr. Mercurio's opinion as well. Dr. Mercurio had opined that Plaintiff had “mild limitation” for prolonged sitting and needed to be in a setting “where she could stand from time to time to alleviate spasmodic pain.” AR 745. Dr. Mercurio further opined that Plaintiff would have “no limitation” for reaching or handling objects; “mild limitation” for standing, walking, or repetitive climbing of stairs; “moderate limitation” for bending; and “marked limitation” for lifting or carrying and kneeling. Id.
Finally, ALJ Katz noted the opinions from the State agency medical consultants. Dr. M. Vazquez Gonzalez reviewed the record on April 13, 2021, see AR 77-92, and opined with respect to exertional limitations that Plaintiff could occasionally lift and/or carry (including upward pulling) 20 pounds; frequently lift and/or carry (including upward pulling) 10 pounds; stand and/or walk 6 hours in an 8-hour workday; sit more than 6 hours on a sustained basis in an 8-hour workday; and push and/or pull without limitation, except as noted for lifting and/or carrying. AR 85-86. Dr. Vazquez Gonzalez further opined that Plaintiff had postural limitations as well-she could frequently climb ramps and stairs; never climb ladders, ropes, or scaffolds; balance without limitation; and occasionally stoop, kneel, crouch, and crawl. AR 86-87. However, Dr. Vazquez Gonzalez opined that Plaintiff had no manipulative limitations other than being limited to frequent overhead reaching with her left arm. AR 87. On reconsideration, State agency medical consultant Dr. R. Mohanty reviewed the record on June 21, 2021, see AR 94110, and had the same opinion as Dr. Vazquez Gonzalez with respect to the exertional limitations of lifting and/or carrying (including upward pulling), standing and/or walking, sitting, and pushing and/or pulling. AR 104. With respect to postural limitations, however, Dr. Mohanty's opinion differed-according to Dr. Mohanty, Plaintiff could occasionally climb ramps, stairs, ladders, ropes, and scaffolds; and occasionally balance, stoop, kneel, crouch, and crawl. AR 105. Dr. Mohanty, unlike Dr. Vazquez Gonzalez, opined that Plaintiff had no manipulative limitations at all. Id.
3. The ALJ Appropriately Evaluated the Medical Opinion Evidence
ALJ Katz explained how the opinion evidence, in particular the opinions of Dr. Vazquez Gonzalez and Dr. Mohanty, supported his RFC determination that Plaintiff could perform light work with frequent reaching bilaterally:
The undersigned finds the limitation to light exertional work persuasive, as that evaluation is consistent with claimant's stable clinical findings since the amended onset date, which show minimal deficits in mobility, but otherwise intact motor strength, intact sensation, and no significant worsening of her conditions. The limitations on use of the left upper extremity are also persuasive as these are consistent with the claimant's medical history. However, the postural limitations as assessed are less persuasive, given then [sic] claimant's treatment records that show no signs of significant neurovascular or motor deficit in the lower extremities.AR 27.
Plaintiff contends that the opinions from non-examining sources Dr. Vazquez Gonzalez and Dr. Mohanty do not constitute substantial evidence to support the RFC determination here because they “were rendered prior to the receipt of most of the medical evidence.” Reply Mem. at 4-5. “[W]hen supported by evidence in the record, the opinion of a nonexamining physician can also constitute substantial evidence.” Rose o/b/o X.G.T.A. v. Berryhill, No. 18-cv-509 (LGS) (SN), 2019 WL 2453352, at *3 (S.D.N.Y. Feb. 4, 2019), adopted by 2019 WL 2498279 (S.D.N.Y. June 17, 2019). That said, “[i]n general, medical source opinions that are conclusory, stale, and based on an incomplete medical record may not be substantial evidence to support an ALJ finding.” Michael R. D. v. Comm'r of Soc. Sec., No. 21-cv-215 (JLS), 2023 WL 3869022, at *4 (W.D.N.Y. June 7, 2023) (quotation marks omitted). “Remand may be warranted where more recent evidence in the record directly contradicts the older reports of plaintiff's functioning on which the ALJ relied and the ALJ failed to fully analyze the more recent evidence.” Id. (cleaned up). In this case, however, the opinions from the State agency medical consultants were rendered on April 13, 2021 (Dr. Vazquez Gonzalez) and June 21, 2021 (Dr. Mohanty), and there are few treatment records for any dates thereafter. Notably, the most recent evidence considered by ALJ Katz-the treatment record for Plaintiff's November 26, 2021 office visit with Dr. Booker-did not contradict the earlier records on which Dr. Vazquez Gonzalez and Dr. Mohanty relied in formulating their opinions. If anything, that treatment record showed improvement in the months since the State agency consultant reviews, as Plaintiff's lower back pain on her left side had “completely resolved”; only the lower back pain on her right side persisted. See AR 895-97. As demonstrated by the treatment records and the independent medical examination and consultative examination reports discussed above, the opinions of Drs. Vazquez Gonzalez and Mohanty are supported by the evidence in the record. Accordingly, their opinions constitute substantial evidence to support the ALJ's RFC determination, and ALJ Katz did not err in his evaluation of those opinions.
Plaintiff also challenges the ALJ's rejection of treating physician Dr. Booker's opinion limiting her to no more than four hours of work per day. ALJ Katz found that Dr. Booker's “conclusory medical opinion” was “unpersuasive, as it is vague and not supported by Dr. Booker's own clinical records, which but for subjective reports of pain and decreased range of motion in the lumbar spine, indicated no other severe or notable findings such as neurological deficits in the lower extremities, muscle atrophy, positive straight leg raise testing, or significantly decreased motor strength.” AR 26 (citing Dr. Booker's treatment records). “[A]n ALJ may rely on inconsistencies between opinions and treatment[] notations in assessing opinion evidence.” Marc W. v. Comm'r of Soc. Sec., No. 20-cv-1121 (WBC), 2021 WL 2435651, at *6 (W.D.N.Y. June 15, 2021); see also, e.g., Dorta v. Saul, No. 19-cv-2215 (JGK) (RWL), 2020 WL 6269833, at *5 (S.D.N.Y. Oct. 26, 2020) (ALJ was entitled to discount treating physicians' opinions because they “were inconsistent with their own contemporaneous treatment notes and other evidence in the record”) (citing cases). While Plaintiff maintains that Dr. Booker's opinion that she can work only four hours per day is “supported and consistent, based on her significant unsuccessful treatment history and the opinions of the other treating and examining sources,” Pl.'s Mem. at 14, she does not cite any particular treatment records or opinions in support of her conclusory contention. Aside from the aforementioned lack of support for Dr. Booker's opinion in his own treatment records, see AR 751, 755, 869, 896-97 (treatment records consistently showing full strength in the lower extremities, negative straight leg raise testing bilaterally, and no tenderness to palpation except over her bilateral sacroiliac joints), Dr. Booker's opinion is also inconsistent with the treatment records of Dr. Rudnick with respect to Plaintiff's left shoulder impairment, see AR 519-23, which Plaintiff herself reported to consultative examiner Dr. Mercurio as “no longer a problem.” AR 742. As discussed below, Dr. Booker's opinion is also largely inconsistent with Dr. Mercurio's opinion. Moreover, ALJ Katz correctly noted that “[a]n assessment of [Plaintiff's] ability to work is a statement . . . on an issue reserved to the Commissioner of the [SSA].” AR 26; see 20 C.F.R. § 404.1520b(c)(3); Disla, 2022 WL 1063753, at *13 (“[C]onclusory statements by a claimant's provider concerning issues reserved to the Commissioner-for instance, whether the claimant is disabled under the Act-are inherently neither valuable nor persuasive and will not be analyzed by the ALJ.”) (quotation marks omitted). To the extent that Dr. Booker's opinion can be read as simply a declarative statement regarding Plaintiff's inability to work, it was appropriate for the ALJ to discount it on this basis. In sum, ALJ Katz did not err in determining that Dr. Booker's opinion was unpersuasive.
Plaintiff maintains that ALJ Katz did not properly evaluate Dr. Mercurio's opinion; she specifically objects to the ALJ's rejection of Dr. Mercurio's finding that Plaintiff had marked limitations in lifting and carrying, which would have precluded an RFC for light work. Pl.'s Mem. at 14.But the ALJ was not required to accept Dr. Mercurio's opinion in its entirety, and he provided an appropriate explanation for why Dr. Mercurio's findings of marked limitations were not consistent with or supported by the record as a whole. See Meyer v. Comm'r of Soc. Sec., 794 Fed.Appx. 23, 25 (2d Cir. 2019) (summary order) (ALJ was not required to include in the RFC finding all of the limitations found by a consultative examiner and two independent medical examiners); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (ALJ may credit some parts of medical opinion and not credit other parts which are not supported by objective medical evidence). ALJ Katz explained that while the marked limitations noted by Dr. Mercurio were consistent with his “one time examination,” they were “not well supported by the record as a whole,” because while Plaintiff had “demonstrated a history of chronic pain which would afford some limitation in functioning, . . . the generally stable and unremarkable record since the amended onset date would not warrant such marked limitation as set forth by the consultative examiner.” AR 26. As explained both above and below, Dr. Booker's treatment records were generally unchanged throughout the relevant time period, and do not support a finding of marked limitations. See AR 751, 755, 869, 896-97 (treatment records consistently showing full strength in the lower extremities, negative straight leg raise testing bilaterally, and no tenderness to palpation except over her bilateral sacroiliac joints). Dr. Rudnick's treatment records concerning Plaintiff's left shoulder also remained generally the same over the relevant time period. See AR 24 (the findings of Dr. Rudnick at Plaintiff's January 7, 2021 examination, at which Plaintiff “continued to exhibit some decreased range of motion of the left shoulder with tenderness, but motor strength remained good and there were no signs of sensory or other neurological deficit,” were “grossly unchanged” when compared with Plaintiff's examination by Dr. Rudnick in October 2020); compare AR 822-27 (October 8, 2020 appointment) with AR 847-51 (January 7, 2021 appointment). Finally, Plaintiff's activities of daily living, as testified to at the hearing, listed in a function report submitted by Plaintiff to the SSA, and reported by Plaintiff to Dr. Mercurio at the consultative examination, also were inconsistent with a finding of marked limitations. See Section IV.B, infra. In the end, Plaintiff has “a duty to prove a more restrictive RFC,” Smith v. Berryhill, 740 Fed.Appx. 721, 726 (2d Cir. 2018) (summary order), and she has not pointed to any objective evidence in the record that supports greater limitations for lifting or carrying than were included in the RFC determination.
Dr. Mercurio also opined that Plaintiff had a marked limitation in kneeling, but Plaintiff does not make any argument regarding this aspect of his opinion.
ALJ Katz relied upon the largely unchanged treatment records concerning Plaintiff's left shoulder to find that Plaintiff “was able to perform frequent reaching.” AR 24. Although Plaintiff asserts that this was “an improper medical conclusion” by the ALJ, see Pl.'s Mem. at 20, as noted above, Dr. Vazquez Gonzalez had opined, based on a review of the record, that Plaintiff was limited to frequent overhead reaching with her left arm, AR 87, and this opinion constitutes substantial evidence in support of the RFC determination.
Plaintiff further suggests that ALJ Katz erred in relying on the remainder of Dr. Mercurio's opinion since terms like “mild” and “moderate” are impermissibly vague. Pl.'s Mem. at 14-15. But “the mere use of the phrase ‘moderate limitations' does not render a doctor's opinion vague or non-substantial for purposes of the ALJ's RFC determination.” Tudor v. Comm'r of Soc. Sec., No. 12-cv-2795 (SJF), 2013 WL 4500754, at *12 (E.D.N.Y. Aug. 21, 2013) (cleaned up). “Courts have held that a consultative examiner's conclusion was not impermissibly vague where the conclusion was well supported by his [or her] extensive examination.” Pealo v. Comm'r of Soc. Sec., No. 17-cv-0149 (GTS) (WBC), 2017 WL 5891772, at *5 (N.D.N.Y. Oct. 30, 2017) (quotation marks omitted), adopted by 2017 WL 5891787 (N.D.N.Y. Nov. 28, 2017); see Tudor, 2013 WL 4500754, at *12 (consultative examiner's opinion assessing moderate limitations was not vague and provided an adequate basis for the ALJ's RFC determination where it “was supported by ‘additional information,' i.e., objective medical findings”). Here, Dr. Mercurio's opinion that Plaintiff had “mild limitation” for prolonged sitting, standing, walking, or repetitive climbing and “moderate limitation” for bending was well-supported by his examination findings of full range of motion in the lumbar spine, negative straight leg raise testing bilaterally, full range of motion in the hips, knees, and ankles bilaterally, full strength in the lower extremities, and no sensory deficit. See AR 744. These findings also were consistent with Dr. Booker's treatment records, which showed full strength in the lower extremities, negative straight leg raise testing bilaterally, no tenderness to palpation except over her bilateral sacroiliac joint, and negative FADIR's test, but positive Patrick's test. AR 751, 755, 869, 896-97. Accordingly, the ALJ did not err in finding Dr. Mercurio's opinion “partially persuasive” with respect to the mild to moderate limitations assessed. Furthermore, opinions assessing either mild or moderate limitations in physical activities support an RFC for light work. See Snyder v. Saul, 840 Fed.Appx. 641, 643 (2d Cir. 2021) (summary order); see also White v. Berryhill, 753 Fed.Appx. 80, 82 (2d Cir. 2019) (summary order) (opinion that plaintiff had moderate limitations in standing, sitting, and performing other activities supported RFC for modified version of light work); Lewis v. Colvin, 548 Fed.Appx. 675, 677 (2d Cir. 2013) (summary order) (assessment of “mild limitations for prolonged sitting, standing, and walking” supported RFC for light work); Martinez v. Comm'r of Soc. Sec., No. 13-cv-159 (KMK) (JCM), 2016 WL 6885181, at *13 (S.D.N.Y. Oct. 5, 2016) (“[M]oderate restrictions for lifting, pushing, pulling, overhead reaching, stooping, squatting, prolonged standing, and prolonged walking . . . are consistent with an RFC for light work.”), adopted by 2016 WL 6884905 (S.D.N.Y. Nov. 21, 2016).
A “FADIR's” test, or a Flexion, Adduction, and Internal Rotation test, “is an exclusion tool for several hip pathologies.” “FADIR (Flexion, Adduction, Internal Rotation) Test,” Physiopedia, available at https://www.physio-pedia.com/FADIR_(Flexion,_Adduction,_ Internal_Rotation)_Test?utm_source=physiopedia&utm_medium=search&utm_campaign=ongoing_internal (last visited 8/14/2023). The test was not performed on Plaintiff at her November 26, 2021 appointment with Dr. Booker. See AR 896-97.
A “Patrick's test” is also known as a FABER test, which stands for Flexion, Abduction, and External Rotation. The test “is used to identify the presence of hip pathology by attempting to reproduce pain in the hip, lumbar spine or sacroiliac region” and “is a passive screening tool for musculoskeletal pathologies, such as hip, lumbar spine, or sacroiliac joint dysfunction, or an iliopsoas spasm.” “FABER Test,” Physiopedia, available at https://www.physio-pedia.com/FABER_Test#cite_ref-4 (last visited 8/14/2023). This test was positive only on the right side after Plaintiff received the sacroiliac joint injection on March 9, 2021, see AR 869 (record for 3/29/2021 office visit), and the Patrick's test was not performed on Plaintiff at her November 26, 2021 appointment with Dr. Booker, see AR 896-97.
In addition, Plaintiff asserts that ALJ Katz erred by failing to address Dr. Mercurio's opinion that Plaintiff's mild limitations included the need for a “sit/stand option.” Pl.'s Mem. at 14. But Dr. Mercurio did not explicitly state that Plaintiff had a limitation requiring a sit/stand option. Rather, Dr. Mercurio stated only that Plaintiff “would have mild limitation for prolonged sitting and would have to be in a setting where she could stand from time to time to alleviate spasmodic pain.” AR 745. Accordingly, “the ALJ did not ignore evidence of a sit/stand limitation, as the medical evidence does not indicate that Plaintiff was so limited.” German v. Comm'r of Soc. Sec., No. 19-cv-3328 (AT) (SDA), 2020 WL 5899521, at *9 (S.D.N.Y. May 27, 2020), adopted by 2020 WL 3959187 (S.D.N.Y. July 13, 2020). Indeed, Plaintiff points to no medical evidence in the record indicating that any medical provider diagnosed or recommended a sit/stand limitation. Plaintiff's various challenges to ALJ Katz's evaluation of Dr. Mercurio's opinion are without merit, and do not provide a basis for remand.
Finally, in her reply brief, Plaintiff contends that the ALJ failed to adequately develop the record by not recontacting Dr. Booker since in this case, there is “a lack of a full treating source opinion [and] no consultative or review opinions are fully persuasive.” Reply Mem. at 7. But even if an ALJ's RFC determination “may not perfectly correspond with any of the opinions of medical sources cited in his [or her] decision, he [or she] [is] entitled to weigh all of the evidence available to make an RFC finding that [is] consistent with the record as a whole.” Matta v. Astrue, 508 Fed.Appx. 53, 56 (2d Cir. 2013) (summary order). “Genuine conflicts in the medical evidence are for the Commissioner to resolve,” Veino, 312 F.3d at 588; see Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012), and an ALJ may “choose between properly submitted medical opinions,” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998). It was therefore entirely appropriate for ALJ Katz to resolve conflicts in the medical evidence and choose among the medical opinions of Plaintiff's treating source Dr. Booker, consultative examiner Dr. Mercurio, and non-examining State agency sources Dr. Vazquez Gonzalez and Dr. Mohanty in formulating Plaintiff's RFC, without seeking a further opinion from Dr. Booker. As explained in Section III, supra, there were no obvious gaps in the record, and there was sufficient evidence from which ALJ Katz could assess Plaintiff's RFC. For all of these reasons, the ALJ properly evaluated the medical opinion evidence in making his RFC determination, and the RFC was supported by substantial evidence.
B. Evaluation of Plaintiff's Subjective Complaints Pursuant to SSR 16-3p
In accordance with SSA regulations, an ALJ is required to consider all of the evidence in a claimant's record in evaluating the intensity, persistence, and limiting effects of a claimant's symptoms. SSR 16-3p, 2017 WL 5180304, at *2 (S.S.A. Oct. 25, 2017). SSA regulations set forth a two-step process for evaluating a claimant's subjective complaints about his or her symptoms and the effect they have on the claimant's ability to work. First, the ALJ determines whether the claimant suffers from a “medically determinable impairment[] that could reasonably be expected to produce [his or her] symptoms, such as pain.” 20 C.F.R. § 404.1529(c)(1). If the ALJ determines that to be the case, then in the second step, the ALJ determines “the extent to which [the claimant's] symptoms limit [his or her] capacity for work.” 20 C.F.R. § 404.1529(c).
The ALJ “is not required to accept the claimant's subjective complaints without question; he [or she] may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). When evaluating the intensity, persistence, and limiting effects of a claimant's symptoms, SSA regulations require the ALJ to consider all available evidence, including objective medical evidence and information regarding (i) the claimant's daily activities; (ii) the location, duration, frequency, and intensity of his or her pain or other symptoms; (iii) any precipitating and aggravating factors; (iv) the type, dosage, effectiveness, and side effects of any medications taken; (v) treatment other than medication used to relieve the claimant's pain or other symptoms; (vi) any measures used to relieve his or her pain or other symptoms; and (vii) other factors concerning functional limitations and restrictions resulting from the claimed pain or other symptoms. 20 C.F.R. § 404.1529(c)(3)(i)-(vii); SSR 16-3p, 2017 WL 5180304, at *7-8. “It is the role of the Commissioner, not the reviewing court, to resolve evidentiary conflicts and to appraise the credibility of witnesses, including with respect to the severity of a claimant's symptoms.” Cichocki v. Astrue, 534 Fed.Appx. 71, 75 (2d Cir. 2013) (summary order) (quotation marks omitted). “While it is not sufficient for the ALJ to make a single, conclusory statement
that the claimant is not credible or simply to recite the relevant factors, remand is not required where the evidence of record permits us to glean the rationale of an ALJ's decision.” Id. at 76 (cleaned up). Where an ALJ provides specific reasons for discounting a claimant's testimony regarding her symptoms, the ALJ's determination “is generally entitled to deference on appeal.” Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013) (per curiam); see also Calabrese v. Astrue, 358 Fed.Appx. 274, 277 (2d Cir. 2009) (summary order) (“[W]here the ALJ's decision to discredit a claimant's subjective complaints is supported by substantial evidence, [the court] must defer to his [or her] findings.”).
The SSA has eliminated the use of the term “credibility” in its sub-regulatory policy because SSA regulations do not use this term. See SSR 16-3p, 2017 WL 5180304, at *2 (Oct. 25, 2017). As the SSA explained, “subjective symptom evaluation is not an examination of an individual's character.” Id. Adjudicators are required to “evaluate the intensity and persistence of an individual's symptoms” to “determine how symptoms limit ability to perform work-related activities for an adult ....” Id. Nonetheless, case law still often uses the term credibility in discussing the ALJ's evaluation of a plaintiff's subjective complaints.
Plaintiff maintains that ALJ Katz did not properly evaluate the evidence in connection with the factors set forth in SSR 16-3p and the SSA regulations. In essence, she contends that the reasons the ALJ gave for discounting her allegations concerning the nature, intensity, persistence, and limiting effects of her symptoms are not supported by substantial evidence. See Pl.'s Mem. at 15-22.
Plaintiff first challenges the ALJ's finding that the treatment she received for her impairments was “conservative and routine.” See AR 24. The ALJ added that there was “no evidence that [Plaintiff] ha[d] sought or ha[d] been recommended to undergo any invasive or aggressive treatment to manage her pain.” Id. While Plaintiff contests the characterization of her treatment as “conservative,” see Pl.'s Mem. at 15, “it is not necessarily improper for an ALJ to describe the claimant's treatment as ‘conservative' where the record supports such a characterization.” McLymond v. Berryhill, No. 16-cv-6180 (CJS), 2018 WL 1367335, at *10 (W.D.N.Y. Mar. 16, 2018) (citing Knorr v. Colvin, No. 15-CV-06702 (MAT), 2016 WL 4746252, at *14 (W.D.N.Y. Sept. 13, 2016) (characterizing “physical therapy, a TENS unit, NSAIDs, opioid analgesics, muscle relaxants, anti-convulsant medications, palliative injections, [and] chiropractic adjustments” as “conservative treatments”). Moreover, “[i]f the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints, the ALJ may find that the alleged intensity and persistence of an individual's symptoms are inconsistent with the overall evidence in the record.” Laporta v. Comm'r of Soc. Sec., No. 19-cv-237 (DB), 2020 WL 2395695, at *6 (W.D.N.Y. May 12, 2020) (citing SSR 16-3p, 2017 WL 5180304, at *9).
Here, ALJ Katz did not err in describing Plaintiff's treatment, as reflected in the record, as conservative, or by stating that Plaintiff's treatment could not be characterized as invasive or aggressive. The record reflects that Plaintiff saw her treating physicians, Dr. Rudnick and Dr. Booker, only a handful of times during the relevant period. See AR 519-23 (January 7, 2021 appointment with Dr. Rudnick), 753-55 (January 18, 2021 appointment with Dr. Booker), 86466 (March 8, 2021 appointment with Dr. Booker), 867-70 (March 29, 2021 appointment with Dr. Booker), 883-84 (June 28, 2021 appointment with Dr. Booker), 895-97 (November 26, 2021 appointment with Dr. Booker). Her treatment during the relevant period involved a round of physical therapy sessions for her lower back pain at the end of 2020 and beginning of 2021, see AR 577-90, 668-74, 768-71; bilateral sacroiliac joint intraarticular steroid injections on March 9, 2021, which succeeded in resolving her left-sided lower back pain, AR 747-49, 867-70; and anti-inflammatory medications, both pills and topical, as well as pain medications, AR 855-56, 865, 868-69, 883-84, 885-86, 896. The ALJ therefore reasonably discounted Plaintiff's subjective complaints based on the lack of frequency and limited extent of her treatment.
As Plaintiff acknowledges, other than this treatment record, “the record does not contain any additional doctor's visits concerning treatment for the shoulder injury.” Pl.'s Mem. at 7.
Plaintiff argues in her memorandum of law that she went to physical therapy “approximately 17 times between October 2020 and February 2021,” Pl.'s Mem. at 6, but some of the treatment records cited are duplicative. Rather, according to the treatment records, Plaintiff went to physical therapy 12 times during that period. AR 577-90, 668-74, 768-71 (appointments on 10/28/2020, 11/25/2020, 12/2/2020, 12/7/2020, 12/23/2020, 12/29/2020, 12/30/2020, 1/6/2021, 1/7/2021, 1/13/2021, 1/27/2020, 2/23/2021).
As previously noted, see footnote 9, supra, there is no evidence in the record about the date on which Plaintiff underwent a radiofrequency ablation procedure for the pain in her right side sacroiliac joint, and no indication that an ablation was performed during the relevant time period. In other words, the characterization of Plaintiff's course of treatment as “conservative” could not have encompassed an ablation if the ALJ did not even know that the ablation had taken place.
The ALJ also appropriately relied on the objective medical evidence in the record in discounting Plaintiff's subjective complaints. AR 24-25. “[O]bjective medical evidence is a useful indicator to help make reasonable conclusions about the intensity and persistence of symptoms, including the effects those symptoms may have on the ability to perform work-related activities ....” SSR 16-3p, 2017 WL 5180304, at *5; see 20 C.F.R. § 404.1529(c)(2) (same).
As discussed in Section IV.A, supra, the treatment records and independent medical and consultative examination records show a slight reduction in strength in Plaintiff's left shoulder, but full strength in the right arm and bilateral lower extremities, as well as negative straight leg raise testing, no sensory deficits, and full range of motion in the shoulders and hips, elbows, forearms, wrists, knees, and ankles. See AR 439-43, 519-23, 742-45, 753-55, 864-66, 867-70, 883-84, 895-97. In addition, the ALJ noted the result of Plaintiff's updated pelvic MRI from November 2021, which “showed stable degenerative changes at ¶ 5-S1, with unremarkable findings of the sacroiliac joint and hips.” AR 25; see AR 892-93.
Plaintiff also maintains that ALJ Katz erred in discounting her subjective complaints based on her activities of daily living. In his decision, the ALJ noted that “despite her allegations of being totally disabled,” Plaintiff had “reported activities of daily living that are not as limited as one would expect,” citing a “Function Report -- Adult” that she submitted to the SSA, Dr. Mercurio's examination report, and Plaintiff's hearing testimony. AR 25. In the Function Report, regarding daily activities, Plaintiff stated that she prepared simple meals daily; dusted, washed dishes, and swept 30 minutes a day; went outside every day except during the winter and could go out alone; walked or drove a car to get around; went food shopping in stores once a week; watched TV; went to the park for a walk every day, if possible; and went out to eat with other people once a week. AR 257-60. She further indicated that she could lift 10-15 pounds and stand, walk, or sit for 20 minutes at a time. AR 261. During her examination with Dr. Mercurio, Plaintiff reported that she (i) was not receiving help at home (she lived alone); (ii) drove a car; (iii) did cooking, cleaning, laundry, and shopping; (iv) showered and dressed herself; and (v) spent her leisure time watching TV, listening to the radio, doing online social media activities, and socializing with friends. AR 743. At the hearing, Plaintiff testified that she stopped working in 2019 to take care of her elderly father. AR 52-53. She stated that she prepared meals for him and drove him to doctor's appointments and to get his hair cut- “[e]verything he needed”-and went shopping for him. AR 53. ALJ Katz also considered Plaintiff's hearing testimony regarding her work activities, including her return to work in June 2021 as a supermarket cashier for 16-20 hours per week. AR 25-26; see AR 43-44.
Plaintiff points out that ALJ Katz's characterization of the timing of her work history, especially as it relates to the timing of her applications for DIB, is inaccurate. See Pl.'s Mem. at 18-19. Indeed, the evidence in the record, including Plaintiff's hearing testimony, shows that Plaintiff left her job at a bank after the bank was sold in 2016. See AR 47-48, 283-84. Plaintiff then received unemployment insurance “for approximately two months” before beginning her next job later in 2016. AR 52. Therefore, ALJ Katz's statement that Plaintiff “applied for and obtained unemployment benefits, for which she represented to the Department of Labor that she was ‘ready, willing and able' to work while simultaneously representing to the Social Security Administration that she was unable to work - clearly inconsistent statements,” AR 25 (emphases in original), is plainly incorrect. Plaintiff's application for unemployment benefits in 2016 came years before even her first application for DIB, which was in September 2019. See AR 62. In any event, ALJ Katz's mistaken understanding of the relationship between Plaintiff's filing for unemployment and her filing for DIB is, at most, harmless error, as ALJ Katz provided several other valid reasons for discounting Plaintiff's subjective complaints. Similarly, while the ALJ noted that Plaintiff left her job as a cashier at a supermarket to care for both of her parents, AR 25, this, too, was inaccurate, as Plaintiff testified that by the time she left that job, her mother had already passed away, and she was only taking care of her father. See AR 52 (“Q . . . after you stopped working at the supermarket in 2019 . . . A . . . my main concern was to take care of - well, now it was just my father, my mom had passed.”). The testimony on this point was somewhat ambiguous, see AR 49 (“Can I just say why I didn't stay long at that job? . . . My mom and dad were very ill, so I felt that I needed to be closer to take care of them.”), but in any event, this error by ALJ Katz was harmless, since Plaintiff does not dispute that she left her job in 2019 to serve as a caregiver for her father and that she cooked and shopped for him and took him to medical appointments. That she did this solely for her father rather than both parents is immaterial, as is ALJ Katz's inaccurate statement that Plaintiff went back to work in June 2021 “[w]hen one parent died,” AR 25, even though at that point both of Plaintiff's parents had died.
It was appropriate for ALJ Katz to consider this evidence in deciding to discount aspects of Plaintiff's testimony and other statements regarding her limitations. See Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir. 2009) (per curiam) (ALJ's finding that claimant's testimony about his limitations was not fully credible was appropriate in part because of evidence regarding claimant's activities, such as caring for his one-year-old child, including changing diapers, sometimes vacuuming and washing dishes, occasionally driving, and watching television, reading, and using the computer); see also, e.g., Cichocki v. Astrue, 729 F.3d 172, 178 (2d Cir. 2013) (per curiam) (ALJ properly relied on plaintiff's report that “she performed numerous daily tasks, such as walking her dogs and cleaning her house, that are consistent with a residual capacity to perform light work”); Ayala v. Berryhill, No. 18-cv-124 (VB) (LMS), 2019 WL 1427398, at *14 (S.D.N.Y. Mar. 12, 2019) (“[T]he ALJ was entitled to consider evidence that Plaintiff had engaged in part-time work at various points during the relevant period in assessing Plaintiff's credibility.”), adopted sub nom. Ayala v. Comm'r of Soc. Sec., 2019 WL 1417220 (S.D.N.Y. Mar. 29. 2019).
Plaintiff testified at the hearing that she could not work more than part-time because she was “in a lot of pain,” AR 44; that she had back pain “[m]ost of the day,” AR 49; and that she could stand at work for two and a half hours before taking a break, could stand a total of four hours in an eight-hour day, and could not bend at all, AR 50.
Courts “defer to an ALJ's decision to discredit subjective complaints if the decision is supported by substantial evidence.” Watson v. Berryhill, 732 Fed.Appx. 48, 52 (2d Cir. 2018) (summary order). As set forth in the ALJ's decision, and as explained in the discussion of the medical opinion evidence and the treatment records as well as the non-medical and testimonial evidence, supra, the ALJ's determination not to credit Plaintiff's statements about the severity of her symptoms was supported by substantial evidence, and the ALJ's conclusions regarding Plaintiff's complaints do not warrant remand.
In sum, ALJ Katz included a detailed discussion of the evidence in the record, including treatment records, medical opinion evidence, and Plaintiff's own testimony, as well as an explanation of how he evaluated such evidence, in arriving at his determination of Plaintiff's RFC. See AR 22-27. The ALJ applied the correct legal standards in assessing both the medical opinion evidence and Plaintiff's subjective complaints, and the ALJ's RFC determination is supported by substantial evidence.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff's motion for judgment on the pleadings (ECF No. 12) be DENIED, that the Commissioner's motion for judgment on the pleadings (ECF No. 19) be GRANTED, and that judgment be entered in favor of the Commissioner.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kenneth M. Karas, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Karas, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).