Opinion
19-CV-8161 (AJN) (JLC)
01-08-2021
MARCIA SHAPIRO, Plaintiff, v. ANDREW M. SAUL, Commissioner, Social Security Administration, Defendant.
REPORT & RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE.
To the Honorable Alison J. Nathan, United States District Judge:
Marcia Shapiro proceeding pro se, seeks judicial review of a final determination by Andrew M. Saul, the Commissioner of the Social Security Administration, denying Shapiro's application for disability insurance benefits under the Social Security Act. The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that the motion be granted.
I. BACKGROUND
A. Procedural History
On July 15, 2016, Shapiro filed an application for disability insurance benefits (“DIB”), alleging an onset disability date of March 15, 2016 due to a musculoskeletal disorder. Administrative Record (“AR”), Dkt. Nos. 12, 22 at 30203. The Social Security Administration (“SSA”) denied her application on August 18, 2016. Id. at 197-201. On October 19, 2016, Shapiro requested a hearing from an Administrative Law Judge (“ALJ”) and indicated that she had additional evidence to submit. Id. at 203. Shapiro appeared at a hearing before ALJ Mark Solomon on January 4, 2019 in Manhattan, but requested an adjournment to seek representation. Id. at 165-72.
Shapiro appeared before ALJ Solomon for the second time on April 2, 2019 and testified without representation as she was unable to obtain counsel. Id. at 173-89. In a decision dated April 15, 2019, the ALJ concluded that Shapiro was not disabled between March 15, 2016 and April 27, 2018, but that she was disabled beginning on April 27, 2018 and continuing through the date of the decision. Id. at 11-21. On May 22, 2019, the Appeals Council issued a notice that it was reviewing the ALJ's decision because it had found an error of law. Id. at 286-90. On June 28, 2019, the Appeals Council issued a decision and found that Shapiro was not entitled to any period of DIB given her retirement age. Id. at 1-6.
Specifically, as is discussed further below, while the ALJ found Shapiro to be entitled to a period of disability and DIB under Title II of the Social Security Act, she was found disabled as of April 27, 2018, which was within five months of her full retirement date in August 2018, thus disqualifying her from eligibility for disability benefits. AR at 5 (citing 20 C.F.R. § 404.316).
Shapiro, proceeding without counsel, timely commenced this action on August 30, 2019, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Complaint, Dkt. No. 2. The Commissioner answered Shapiro's complaint by filing the administrative record on January 14, 2020, although it was missing several documents. Dkt. No. 12. On March 16, 2020, the Commissioner moved for judgment on the pleadings and submitted a memorandum of law in support of the motion. Dkt. Nos. 13-14. The Commissioner also informed the Court that he had discovered the administrative record was incomplete and requested permission to supplement it. Dkt. No. 15. The Court granted the request and, on April 2, 2020, the Commissioner filed a supplemental administrative record containing the missing documents along with an amended motion and memorandum of law. Dkt. Nos. 17, 22-24. Having not received any opposition papers at the time that they were due, the Court extended the deadline for Shapiro to respond to the Commissioner's motion and advised her that the Court would consider the motion unopposed if she failed to respond. See Dkt. No. 26. Shapiro did not submit a response.
B. Administrative Record
1. Shapiro's Background
Shapiro was born on August 6, 1952. AR at 178. She was 63 years old on her alleged onset date of disability, id. at 302, and she attained full retirement age (66 years old) on August 6, 2018, id. at 5. At the time of the hearing, Shapiro lived alone in Manhattan. Id. at 178-79. She graduated from college with a bachelor's degree and had worked a variety of jobs, including as a paralegal, a stand-in actor, an opera singer, and a news anchor. Id. at 171, 178, 515.
Shapiro alleges that her ongoing knee and back pain has rendered her unable to work since March 15, 2016. Id. at 302. She also claims to have suffered three injuries that have contributed to her alleged disability after her onset date. She sustained the first injury on August 7, 2017, when someone “accidentally jammed something hard into her back, ” causing lasting pain in her lower back. Id. at 510. Her second injury occurred on April 20, 2018, when she tripped on a doorway and fell onto her outstretched hands and tore a ligament in her left wrist. Id. at 571. On October 23, 2018, she sustained her third injury, this time to her shoulder, when she hit her head on a bathroom shelf. Id. at 535. Shapiro testified that she suffered a torn rotator cuff in her left shoulder and a shoulder impingement on her right side. Id. at 181-82.
Shapiro stated that from her disability onset date in 2016 until her third injury in October 2018, she had difficulty bending down, dressing herself, performing household chores, and getting in and out of the bathtub. Id. at 180-82. She also noted that she could sit for about an hour and stand for “a couple hours at a time” if she took pain medication. Id. at 184-85. After her third injury, she testified that she was unable to stand as long, her pain worsened, and she had difficulty raising her left arm and grooming herself. Id. at 181, 185. Based on a function report dated August 18, 2016, Shapiro's daily activities included “paperwork, phone calls, grocery shopping, [and] read[ing]” as well as caring for a pet. Id. at 345-46. She also reported that she could cook, bake, perform light cleaning, and wash her clothes, but she could not sing, speak without fatigue, lift and carry things without pain, ride a bike, play sports, or sleep without pain medication. Id. at 346, 349.
2. Treatment History
a. Zach Broyer, M.D.-Treating Physician
Zach Broyer, M.D., a physician at Rothman Institute, treated Shapiro for her back pain beginning in September 2014. Id. at 409. At that first visit, Shapiro complained of lower back pain that had been ongoing for the previous five years but had worsened over the previous month. Id. at 410. Based on a lumbar spine MRI on September 11, 2014, Dr. Broyer determined that Shapiro had scoliosis and multilevel degenerative changes. Id. at 404, 406. As a result, Dr. Broyer administered epidural steroid injections and prescribed physical therapy during the subsequent appointments in 2015 and 2016. See, e.g., id. at 366, 398-400, 431-32, 443, 445-47.
At an appointment on March 28, 2016, Shapiro reported pain in her lower back, neck and left arm, and she rated the pain a seven to eight, six, and three out of ten, respectively. Id. at 428. Shapiro reported that the most recent injection that she had received in October 2015 provided some pain relief, but that she experienced “new onset neck and arm pain” after she was hit by a car on October 27, 2015. Id. at 428. She reported continuing leg pain from before the car accident that resulted in sleep interruptions. Id. Upon performing a general examination, Dr. Broyer found tenderness around her cervical spine, but otherwise did not find any swelling, weakness, or other abnormalities. Id. Dr. Broyer noted her body mass index (BMI) as 30.11 and diagnosed her with cervicalgia, lumbosacral region disc degeneration and intervertebral disc disorders with radiculopathy, and cervicothoracic region cervical disc disorder with radiculopathy. Id. at 428-29. He ordered x-rays to be taken of Shapiro's cervical spine, which revealed moderate disc space narrowing, and recommended physical therapy for her cervical and lumbar spine. Id. at 374, 429.
Dr. Broyer had previously administered multiple steroid injections to her L4-L5 vertebrae in her lumbar spine in 2015, id. at 366, 368, 428, 440-41, and in 2016, id. at 367, 423, 443, for a total of seven injections in those two years.
Shapiro received epidural steroid injections on September 12, 2016 and November 28, 2016. Id. at 423, 425. Dr. Broyer included additional diagnoses of “pain in right hand” and “radial styloid tenosynovitis” in his November 28, 2016 treatment notes. Id. at 423. Records from the Rothman Institute indicate that Shapiro's past medical history included diagnoses from December 1, 2016 of generalized anxiety disorder and hypothyroidism. Id. at 582. In addition, an MRI of her lumbar spine dated January 16, 2017 established that Shapiro had “multilevel lumbar degenerative changes and levoscoliosis . . . with mild to moderate canal and neural foraminal narrowing.” Id. at 436-37.
b. Pennsylvania Hospital Medicine
i. Kevin P. Leahy, M.D., Ph.D., F.A.C.S.- Otorhinolaryngology
Dr. Kevin Leahy treated Shapiro for hoarseness, vocal paresis, and vocal atrophy. Id. at 362. At an appointment on June 19, 2015, Shapiro saw Dr. Leahy to follow up on her hoarseness and to report concerns about a tonsil/tongue cyst. Id. at 485. On June 24, 2015, Dr. Leahy performed a microdirect laryngoscopy on Shapiro and provided her with a gel injection to “help[] with her voice.” Id. at 485-86. At a subsequent appointment on May 14, 2016, Dr. Leahy performed a medialization thyroplasty to treat Shapiro's vocal paresis and hoarseness. Id. at 473. In a letter dated September 16, 2016, Dr. Leahy opined that Shapiro was unable to work full time and has limited voice use. Id. at 362. On July 9, 2018, Dr. Leahy diagnosed Shapiro with hoarseness, vocal paresis, and cough but noted that she was doing well overall and that her voice was good. Id. at 559.
Shapiro returned to Dr. Leahy on January 11, 2019, reporting that her voice was scratchy and fluctuating. Id. at 508. Dr. Leahy recommended hydration, humidification, and a nasal saline with instructions to follow up after six months. Id. at 509.
ii. Jasmine Zheng, M.D.-Physical Therapist
Jasmine Zheng, M.D. began providing physical therapy for Shapiro on January 22, 2018 for neck and back pain, id. at 566; however, treatment notes from this appointment are absent from the record. At her next appointment on May 31, 2018, Shapiro reported back pain in her lower midline that radiates into her right leg and down her thigh, pain in her medial ankle, swelling in her lateral ankle, and radiating pain in her right shoulder. Id. She noted that she suffered from a work injury and a car accident in August 2017 as well as an incident at physical therapy that caused increased pain and decreased range of motion in her right arm. Id. Dr. Zheng diagnosed Shapiro with chronic neck and back pain, right shoulder pain with possible impingement, and scoliosis. Id. at 569. She ordered a spine x-ray and an ultrasound of her shoulder, recommended continuing physical therapy, and encouraged Shapiro to see a mental health care provider for her anxiety. Id. at 570.
On July 12, 2018, Dr. Zheng performed a steroid injection in Shapiro's right shoulder, which provided relief to Shapiro for about three months. Id. at 556, 547. At her follow-up visit with Dr. Zheng on September 10, 2018, Shapiro reported that the steroid injection reduced her pain by 50% but the pain started to return a week before her appointment. Id. at 547. She also complained of mid-low back pain with recent sharp, constant pain over her left buttock region. Id. After examining Shapiro, Dr. Zheng added “rotator cuff tendinosis” and “right thumb/hand pain” to her diagnosis, and prescribed physical therapy for Shapiro's right shoulder. Id. at 547, 550-51. Dr. Zheng ordered x-rays that established mild bilateral sacroiliac joint osteoarthritis, mild osteoarthritis of the bilateral hips, and degenerative changes of the lumber spine at ¶ 5-S1. Id. at 626.
Shapiro reported ongoing pain in her back, neck, and shoulder at her subsequent appointments in 2018 and 2019, and Dr. Zheng provided similar recommendations as at past appointments, including referrals to physical therapy and psychiatric help. See id. at 504-07 (March 7, 2019 treatment notes), 510-14 (January 10, 2019 treatment notes), 521-25 (November 12, 2018 treatment notes).
iii. Dr. Benjamin Gray, M.D.-Orthopedist
Shapiro saw Benjamin Gray, M.D., an orthopedist at Pennsylvania Hospital, for an initial consultation about her left wrist on April 27, 2018. Id. at 581-85. Dr. Gray observed tenderness and mild swelling of her left wrist and “[l]eft wrist extension 45 degrees with pain.” Id. at 584. Dr. Gray ordered x-rays and treated her with a short arm cast of her left wrist and a right wrist splint for comfort. At a follow up visit on May 16, 2018, Shapiro denied numbness or tingling and reported no improvement in either wrist. Id. at 575. Dr. Gray concluded that Shapiro suffered from carpometacarpal arthritis that was aggravated in her right wrist, and “an [scapholunate ligament] tear which may or may not be new but was likely aggravated” in her left wrist. Id. at 579. Shapiro received a steroid injection in her left wrist joint and was instructed to return in about two weeks. Id. at 579-80. On June 18, 2018, Dr. Gray diagnosed her with arthritis in her right wrist and a torn ligament in her left wrist and advised Shapiro to return if symptoms worsened or failed to improve. Id. at 564-65. Dr. Gray also noted that new x-rays for both wrists would be needed at her next visit. Id. at 624.
iv. William Brady, M.D., F.A.C.P.-Internal Medicine
William Brady, M.D., treated Shapiro for multiple impairments. At an appointment on May 22, 2018, Dr. Brady assessed left and right wrist pain but found no fractures, and noted that results from an upper extremity electromyography, dated April 4, 2018, were normal. Id. at 740-41. Shapiro had a follow-up visit on October 5, 2018, at which she admitted that she had not yet made a psychiatric appointment or scheduled an appointment for a steroid injection. Id. at 544-46. She discussed her ongoing shortness of breath when climbing stairs and an upcoming trial regarding her apartment. Id. While Dr. Brady continued to prescribe Vicodin, Trazodone, and Alprazolam at this appointment, he noted that the long-term goal was to manage her ailments without opioids. Id. at 545. On October 23, 2018, Shapiro attended another appointment with Dr. Brady and complained of a head injury she had sustained in the bathroom immediately before her visit. Id. at 535. Dr. Brady assessed Shapiro with bilateral knee pain, osteoarthritis in her knees, chronic low back pain, and anxiety and depression, and recommended orthopedic care, continued use of alprazolam for her depression, and Vicodin for her back pain. Id. at 535-36.
Electromyography (EMG) is a test that checks the health of the muscles and the nerves that control the muscles. Electromyography, U.S. NATIONAL LIBRARY OF MEDICINE: MEDLINE PLUS, https://medlineplus.gov/ency/article/003929.htm (last visited Jan. 6, 2021).
According to treatment notes from a November 9, 2018 visit, Shapiro's knee pain “is bad enough that it limits her walking” and she plans to have knee surgery. Id. at 526. Shapiro reported that the bump on her head was better but still hurt, her back pain was “a little better, ” and she had developed a migraine. Id. at 526. Dr. Brady noted that Shapiro was not in any acute distress and had a minimal palpable head lesion, but that she was “tangential” and “disorganized.” Id. at 527. Once again, Dr. Brady referred Shapiro to other physicians and to a psychiatrist. Id. At a January 25, 2019 appointment, Shapiro reported ongoing headaches that she attributed to her head injury. Id. at 673. Dr. Brady referred Shapiro to a neurologist to help her manage her headaches, declined to issue future prescriptions for Alprazolam to manage her anxiety and depression until she saw a psychiatrist, and continued Shapiro on Vicodin to manage low back pain. Id. at 675.
v. Dr. Franklin Caldera, D.O.-Physical Medicine and Rehabilitation
Upon referral from Dr. Zheng, Shapiro saw Franklin Caldera, M.D., for her back and neck pain on November 8, 2018. Dr. Caldera diagnosed Shapiro with left sacroiliac joint pain and administered a left sacroiliac joint injection. Id. at 52934. Based on past MRIs, Dr. Caldera noted multilevel lumbar degenerative changes and levoscoliosis, mild to moderate canal and neural foraminal narrowing, and mild to moderate disc protrusion, but no evidence of cord compression. Id. at 533.
“The sacroiliac joint (SIJ) is a term used to describe the place where the sacrum and the iliac bones join.” Sacroiliac Joint Pain, U.S. NATIONAL LIBRARY OF MEDICINE: MEDLINE PLUS, https://medlineplus.gov/ency/patientinstructions/000610.htm (last visited Jan. 6, 2021).
vi. Daniel Farber, M.D.-Orthopedics
Daniel Farber, M.D., treated Shapiro for bilateral foot and ankle pain on December 12, 2018. At that initial evaluation, Shapiro reported left toe pain following her recent fracture, chronic right ankle and foot pain, and chronic left ankle pain, describing the pain as aching, dull, and intermittent that worsens with activity. Id. at 515. Dr. Farber reported that the left toe fracture line was visible on a new x-ray and that Shapiro was suffering from right toe joint arthritis, but found no significant abnormalities of her ankles. Id. at 519. Dr. Farber noted that the fracture line remains visible based on an x-ray and recommended a follow-up appointment four to six weeks later. Id. at 520.
3. Opinion Evidence
a. Aurelio Salon, M.D.-Consultative Examiner
Aurelio Salon, M.D., an internal medicine physician, conducted a consultative examination of Shapiro on August 10, 2016. Id. at 370-73. Shapiro complained of “[n]eck, back, knee, hand and leg pain” and reported receiving physical therapy and epidural injections to help with the pain. Id. Dr. Salon noted that Shapiro could “cook, clean, do laundry, and shop” and “shower and dress by herself.” Id. at 371. Her gait was normal, but she declined to walk on heels or toes or to squat. Id. She did not need help changing for the exam or getting on and off the exam table, and she was able to rise from her chair without difficulty. Id. Dr. Salon measured a full range of motion for all joints, no swelling, and full grip strength. Id. at 372. He noted that an x-ray revealed “rotary levoscoliosis” and “moderate narrowing of L3-L4 disc space.” Id. Dr. Salon diagnosed Shapiro with hypertension, neck and low back pain, and obesity, and gave a prognosis of “fair.” Id. Dr. Salon opined that Shapiro had no restrictions “in her ability to sit or stand or in her capacity to climb, push, pull, or carry heavy objects.” Id.
“Levoscoliosis is a kind of scoliosis where your spine twists and curves toward the left side of your body in a C shape.” What Is Levoscoliosis and How Is It Treated?, Healthline, available at https://www.healthline.com/health/levoscoliosis (last visited Jan. 6, 2021).
b. Ram Ravi, M.D.-Consultative Examiner
Dr. Ravi, an occupational medicine specialist, conducted a consultative examination of Shapiro on June 13, 2018. Id. at 377. Shapiro reported right shoulder pain since August 2017, back pain for five years, bilateral knee pain for eight years, and bilateral hand and wrist pain since April 20, 2018 with “sharp and constant” pain radiating down her right leg, which she rated at a six out of ten. Id. at 377-78. Dr. Ravi noted that Shapiro did not remove her wrist and thumb braces during the examination due to pain. Id. at 378. Her gait was “moderately antalgic” and she could not walk on her heels or toes or squat. Id. She had discomfort standing, declined to get on or off of the exam table due to pain, but was able to rise from her chair “without difficulty.” Id. Dr. Ravi observed a decreased range of motion in most joints and diffuse lower extremity swelling, but no muscle atrophy and good grip strength. Id. at 379-80. He confirmed all of Shapiro's complaints as diagnoses and gave a “guarded” prognosis. Id. at 380. He concluded that Shapiro had “[n]o limitations sitting” and “[m]oderate limitations standing, walking, pushing, pulling, lifting, and carrying.” Id. He recommended Shapiro “[a]void bending due to right shoulder pain, back pain, bilateral knee pain, and bilateral hand/wrist pain” and limit activities requiring fine auditory and visual acuity. Id.
In conjunction with his report, Dr. Ravi also submitted a Medical Source Statement of Ability To Do Work-Related Activities, dated June 13, 2018. Id. at 382-87. Dr. Ravi assessed that Shapiro could occasionally lift or carry up to, but never more than, 20 pounds; sit up to eight hours and stand or walk up to four hours in an eight-hour workday; handle, finger and feel frequently; and reach, push and pull occasionally. Id. at 383-84. He noted that Shapiro should never balance, stoop, kneel, crouch, crawl, or climb stairs, ramps, ladders, or scaffolds. Id. at 385. In addition, Dr. Ravi observed that Shapiro could perform activities like shopping, travel independently, ambulate without any assistive devices, prepare her own meals and care for her personal hygiene, but could not walk a block at a reasonable pace on rough or uneven surfaces, use standard public transportation, or climb a few steps at a reasonable pace. Id. at 387.
c. Kevin P. Leahy, M.D., Ph.D., F.A.C.S.-Otorhinolaryngology
In a letter dated September 16, 2016, Dr. Leahy stated that Shapiro was receiving treatment for “hoarseness, left vocal paresis and vocal atrophy.” Id. at 362. He opined that “[d]ue to the above listed problems, [Shapiro] is unable to work full time and has limited voice use.” Id.
d. William Brady, M.D., F.A.C.P.-Internal Medicine
In response to Shapiro's request for a letter to provide the court in a separate legal proceeding, Dr. Brady opined her orthopedic problems and pain were “not to a degree or in a way that would prevent her from being able to appear in court.” Id. at 536.
e. Lennart C. Belok, M.D., P.C.
At an evaluation with Lennart Belok, M.D., on March 21, 2019, Shapiro reported symptoms stemming from her October 2018 injury, including headaches, dizzy spells, balance difficulties, and neck pain radiating into both shoulders. Id. at 461-66. Upon examination, Dr. Belok found that her range of motion was restricted, sensation and strength were decreased, and her gait was markedly impaired. Id. at 461-62. Dr. Belok administered nerve studies and other testing and concluded that the findings were consistent with bilateral residual carpal tunnel syndrome with superimposed bilateral cervical radiculopathy. Id. at 464. Dr. Belok diagnosed Shapiro with a cerebral concussion without loss of consciousness, chronic migraine, cervical and lumbar radiculopathy and spondylosis, cervicalgia, bilateral carpal tunnel syndrome and numbness. Id. at 462. He opined that Shapiro was “totally disabled from gainful employment due to her conditions.” Id.
4. ALJ Hearing
Proceeding pro se, Shapiro appeared before ALJ Solomon on January 4, 2019. Id. at 165. The hearing was adjourned, however, because Shapiro requested an opportunity to seek representation. Id. at 169. Before the hearing concluded, the ALJ instructed Shapiro to provide the names and contact information for “all treating sources over the past couple of years, and what they're treating you for.” Id. at 170. Shapiro briefly provided some personal information, stating that she had worked as an actress and graduated from New York University. Id. at 171-72.
Shapiro appeared without representation again at the next hearing on April 2, 2019. Id. at 173. At the beginning of the hearing, ALJ Solomon summarized the attempts that were made to collect the list of Shapiro's treating physicians, which the ALJ had not received despite his directive at the last hearing. Id. at 175-76. He then explained that he had subpoenaed her records from Pennsylvania Hospital and Dr. Broyer of the Rothman Institute, and noted that Shapiro had provided him with a binder of treatment records at the current hearing. Id. at 176. Shapiro also claimed to have sent additional treatment notes by FedEx, but the ALJ stated on the record that he had not received them as of the time of the hearing. Id. at 177.
Shapiro then provided certain demographic information. She testified that she was born on August 6, 1952, graduated college with a Bachelor of Science in Theater and Communications, and lived by herself at the time of the hearing. Id. at 178-79. She stated that she had experienced many new injuries since her alleged onset date and noted that she was not currently working. Id. at 177, 179. She explained that she had sustained a head injury on October 23, 2017. Id. at 179, 183. She also claimed that she had injured herself when she tripped on rug at physical therapy on April 20, 2018, and had suffered a shoulder impingement due to a workplace accident on August 7, 2018. Id. at 177, 182. Shapiro testified that she had a torn rotator cuff on the left shoulder and shoulder impingement on the right side and that she had been going to physical therapy for a year. Id. at 181-82. She also stated that she had “a very bad back” and problems with her neck as early as 2016 and that it had been recommended that she have knee replacements prior to July 2016. Id. at 182. She reported that she had multiple surgeries in connection with a misdiagnosis of thyroid cancer and still needed to receive treatment from a voice therapist. Id. at 184.
She also testified that she has had difficulty taking care of her personal needs since her October 23, 2017 injury, including grooming herself and “getting in and out of the tub.” Id. at 179-81. Shapiro also stated that she has had difficulty sitting for long periods since her first alleged disability and estimates she could only sit for about an hour and stand for a couple of hours if she took Vicodin. Id. at 18485. With respect to her employment history, Shapiro testified that she mostly held part-time jobs and her highest yearly income since 2004 had been $8,800. Id. at 185-86.
II. DISCUSSION
A. Legal Standards
1. Judicial Review of the Commissioner's Decision
An individual may obtain judicial review of a final decision of the Commissioner in the “district court of the United States for the judicial district in which the plaintiff resides.” 42 U.S.C. § 405(g) (2018). The district court must determine whether the Commissioner's final decision applied the correct legal standards and whether it is supported by substantial evidence. Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004). “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.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks and alterations omitted); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (“Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations . . . . whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high.” (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
The substantial evidence standard is a “very deferential standard of review.” Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012). The Court “must be careful not to substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result upon a de novo review.” DeJesus v. Astrue, 762 F.Supp.2d 673, 683 (S.D.N.Y. 2011) (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)) (internal quotation marks and alterations omitted). “[O]nce an ALJ finds facts, [a court] can reject those facts ‘only if a reasonable factfinder would have to conclude otherwise.'” Brault, 683 F.3d at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)) (emphasis omitted).
In weighing whether substantial evidence exists to support the Commissioner's decision, “the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Selian, 708 F.3d at 417 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)). On the basis of this review, the court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding . . . for a rehearing.” 42 U.S.C. § 405(g) (2018). However, “[w]hen there are gaps in the administrative record or the ALJ has applied an improper legal standard, [the court has], on numerous occasions, remanded to the [Commissioner] for further development of the evidence.” Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)) (alteration in original).
2. Commissioner's Determination of Disability
Under the Social Security Act, “disability” is defined 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 12 months.” 42 U.S.C. § 423(d)(1)(A) (2018); accord 42 U.S.C. § 1382c(a)(3)(A) (2018). Physical or mental impairments must be “of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In assessing a claimant's impairments and determining whether they meet the statutory definition of disability, the Commissioner “must make a thorough inquiry into the claimant's condition and must be mindful that ‘the Social Security Act is a remedial statute, to be broadly construed and liberally applied.'” Mongeur, 722 F.2d at 1037 (quoting Gold v. Sec'y of H.E.W., 463 F.2d 38, 41 (2d Cir. 1972)). Specifically, the Commissioner's decision must take into account factors such as: “(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience.” Id. (citations omitted).
a. Five-Step Inquiry
“The Social Security Administration has outlined a ‘five-step, sequential evaluation process' to determine whether a claimant is disabled[.]” Estrella v. Berryhill, 925 F.3d 90, 94 (2d Cir. 2019) (citations omitted); 20 C.F.R. § 404.1520(a)(4) (2020). First, the Commissioner must establish whether the claimant is presently employed. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is unemployed, the Commissioner goes to the second step and determines whether the claimant has a “severe” impairment restricting her ability to work. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant has such an impairment, the Commissioner moves to the third step and considers whether the medical severity of the impairment “meets or equals” a listing in Appendix One of Subpart P of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is considered disabled. Id.; 20 C.F.R. § 404.1520(d). If not, the Commissioner continues to the fourth step and determines whether the claimant has the residual functional capacity (“RFC”) to perform her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). Finally, if the claimant does not have the RFC to perform past relevant work, the Commissioner completes the fifth step and ascertains whether the claimant possesses the ability to perform any other work. 20 C.F.R. § 404.1520(a)(4)(v).
The claimant has the burden at the first four steps. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). If the claimant is successful, the burden shifts to the Commissioner at the fifth and final step, where the Commissioner must establish that the claimant has the ability to perform some work in the national economy. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).
b. Duty to Develop the Record
“Social Security proceedings are inquisitorial rather than adversarial.” Sims v. Apfel, 530 U.S. 103, 110-11 (2000). Consequently, “the social security ALJ, unlike a judge in a trial, must on behalf of all claimants . . . 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). As part of this duty, the ALJ must “investigate the facts and develop the arguments both for and against granting benefits.” Sims, 530 U.S. at 111. Specifically, under the applicable regulations, the ALJ is required to develop a claimant's complete medical history. Pratts, 94 F.3d at 37 (citing 20 C.F.R. §§ 404.1512(d)-(f) (2020)). This responsibility “encompasses not only the duty to obtain a claimant's medical records and reports but also the duty to question the claimant adequately about any subjective complaints and the impact of the claimant's impairments on the claimant's functional capacity.” Pena v. Astrue, No. 07-CV-11099 (GWG), 2008 WL 5111317, at *8 (S.D.N.Y. Dec. 3, 2008) (citations omitted).
Whether the ALJ has satisfied this duty to develop the record is a threshold question. Before determining whether the Commissioner's final decision is supported by substantial evidence under 42 U.S.C. § 405(g), “the court must first be satisfied that the ALJ provided plaintiff with ‘a full hearing under the Secretary's regulations' and also fully and completely developed the administrative record.” Scott v. Astrue, No. 09-CV-3999 (KAM) (RLM), 2010 WL 2736879, at *12 (E.D.N.Y. July 9, 2010) (quoting Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)); see also Rodriguez v. Barnhart, No. 02-CV-5782 (FB), 2003 WL 22709204, at *3 (E.D.N.Y. Nov. 7, 2003) (“The responsibility of an ALJ to fully develop the record is a bedrock principle of Social Security law.” (citing Brown v. Apfel, 174 F.3d 59 (2d Cir. 1999))).
This duty is “heightened” when the claimant is unrepresented by counsel. Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (withpro se claimants, an ALJ must “scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts”); accord Moran, 569 F.3d at 113. A reviewing court must determine whether the ALJ “adequately protect[ed] a pro se claimant's rights ‘by ensuring that all of the relevant facts [were] sufficiently developed and considered.'” Cruz, 912 F.2d at 11 (quoting Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980)). Remand is appropriate where this duty is not discharged. See, e.g., Moran, 569 F.3d at 11415 (“We vacate not because the ALJ's decision was not supported by substantial evidence but because the ALJ should have developed a more comprehensive record before making his decision.”).
c. Treating Physician's Rule
“Regardless of its source, the ALJ must evaluate every medical opinion in determining whether a claimant is disabled under the [Social Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. §§ 404.1527(c), 416.927(d) (2020)) (internal quotation marks omitted). A treating physician's opinion is given controlling weight, provided the opinion as to the nature and severity of an impairment “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2); 416.927(d)(2). The regulations define a treating physician as the claimant's “own physician, psychologist, or other acceptable medical source who provides [the claimant] . . . with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the claimant].” 20 C.F.R. § 404.1502 (2020). Deference to such medical providers is appropriate because they “are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical evidence alone or from reports of individual examinations.” 20 C.F.R. §§ 404.1527(c)(2); 416.927(d)(2).
Revisions to the regulations in 2017 included modifying 20 C.F.R. § 404.1527 to clarify and add definitions for how to evaluate opinion evidence for claims filed before March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5869-70 (Jan. 18, 2017). Accordingly, this Report and Recommendation applies the regulations that were in effect when Shapiro's claims were filed with the added clarifications provided in the 2017 revisions.
A treating physician's opinion is not always controlling. For example, a legal conclusion “that the claimant is ‘disabled' or ‘unable to work' is not controlling, ” because such opinions are reserved for the Commissioner. Guzman v. Astrue, No. 09-CV-3928 (PKC), 2011 WL 666194, at *10 (S.D.N.Y. Feb. 4, 2011) (citing 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1)); accord Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“A treating physician's statement that the claimant is disabled cannot itself be determinative.”). Additionally, where “the treating physician issued opinions that [were] not consistent with other substantial evidence in the record, such as the opinion of other medical experts, the treating physician's opinion is not afforded controlling weight.” Pena ex rel. E.R., 2013 WL 1210932, at *15 (quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)) (internal quotation marks omitted) (alteration in original); see also Snell, 177 F.3d at 133 (“[T]he less consistent [the treating physician's] opinion is with the record as a whole, the less weight it will be given.”).
Importantly, however, “[t]o the extent that [the] record is unclear, the Commissioner has an affirmative duty to ‘fill any clear gaps in the administrative record' before rejecting a treating physician's diagnosis.” Selian, 708 F.3d at 420 (quoting Burgess, 537 F.3d at 129); see Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) (discussing ALJ's duty to seek additional information from treating physician if clinical findings are inadequate). As a result, “the ‘treating physician rule' is inextricably linked to a broader duty to develop the record. Proper application of the rule ensures that the claimant's record is comprehensive, including all relevant treating physician diagnoses and opinions, and requires the ALJ to explain clearly how these opinions relate to the final determination.” Lacava v. Astrue, No. 11-CV-7727 (WHP) (SN), 2012 WL 6621731, at *13 (S.D.N.Y. Nov. 27, 2012) (“In this Circuit, the [treating physician] rule is robust.”), adopted by 2012 WL 6621722 (Dec. 19, 2012).
To determine how much weight a treating physician's opinion should carry, the ALJ must consider the “Burgess factors” outlined by the Second Circuit: “(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Estrella, 925 F.3d at 95-96 (citation omitted); see also Burgess, 537 F.3d at 129; 20 C.F.R. § 404.1527(c)(2) (2020). This determination is a two-step process. “First, the ALJ must decide whether the opinion is entitled to controlling weight.” Estrella, 925 F.3d at 95. Second, if, based on these considerations, the ALJ declines to give controlling weight to the treating physician's opinion, the ALJ must nonetheless “comprehensively set forth reasons for the weight” ultimately assigned to the treating source. Halloran, 362 F.3d at 33; accord Snell, 177 F.3d at 133 (responsibility of determining weight to be afforded does not “exempt administrative decisionmakers from their obligation . . . to explain why a treating physician's opinions are not being credited”) (referring to Schaal, 134 F.3d at 505 and 20 C.F.R. § 404.1527(d)(2) (2020)). If the ALJ decides the opinion is not entitled to controlling weight, “[a]n ALJ's failure to ‘explicitly' apply these ‘Burgess factors' when [ultimately] assigning weight at step two is a procedural error.” Estrella, 925 F.3d at 96 (quoting Selian, 708 F.3d at 419-20). The regulations require that the SSA “always give good reasons in [its] notice of determination or decision for the weight” given to the treating physician. Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (alteration in original) (citations omitted). Indeed, “[c]ourts have not hesitate[d] to remand [cases] when the Commissioner has not provided good reasons.” Pena ex rel. E.R., 2013 WL 1210932, at *15 (quoting Halloran, 362 F.3d at 33) (second and third alteration in original) (internal quotation marks omitted).
d. Claimant's Credibility
An ALJ's credibility finding as to the claimant's disability is entitled to deference by a reviewing court. Osorio v. Barnhart, No. 04-CV-7515 (DLC), 2006 WL 1464193, at *6 (S.D.N.Y. May 30, 2006). “[A]s with any finding of fact, ‘[i]f the Secretary's findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount a claimant's subjective complaints.” Id. (quoting Aponte v. Sec'y of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)). Still, an ALJ's finding of credibility “must . . . be set forth with sufficient specificity to permit intelligible plenary review of the record.” Pena, 2008 WL 5111317, at *10 (internal quotation marks omitted) (quoting Williams v. Bowen, 859 F.2d 255, 26061 (2d Cir. 1988)). “The ALJ must make this [credibility] determination ‘in light of the objective medical evidence and other evidence regarding the true extent of the alleged symptoms.'” Id. (quoting Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984)).
SSA regulations provide that statements of subjective pain and other symptoms alone cannot establish a disability. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citing 20 C.F.R. § 404.1529(a)). Accordingly, the ALJ must follow a two-step framework for evaluating allegations of pain and other limitations. Id. First, the ALJ considers whether the claimant suffers from a “medically determinable impairment that could reasonably be expected to produce” the symptoms alleged. Id. (citing 20 C.F.R. § 404.1529(b)). “If the claimant does suffer from such an impairment, at the second step, the ALJ must consider ‘the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence' of record.” Id. (citing 20 C.F.R. § 404.1529(a)). Among the kinds of evidence that the ALJ must consider (in addition to objective medical evidence) are:
1. The individual's daily activities; 2. [t]he location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. [f] actors that precipitate and aggravate the symptoms; 4. [t]he type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. [t]reatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. [a]ny measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. [a]ny other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.Pena, 2008 WL 5111317, at *11 (citing SSR 96-7p, 1996 WL 374186, at *3 (SSA July 2, 1996)).
B. The ALJ's Decision
In his April 15, 2019 decision, the ALJ concluded that Shapiro was disabled beginning April 27, 2018 through the date of his decision. AR at 21. As a preface to his decision, the ALJ described his attempts in retrieving all relevant medical records from Shapiro, and noted that he had yet to obtain medical records that Shapiro had allegedly sent via Federal Express. See id. at 11-12. The ALJ indicated that he had accepted medical records submitted as of the date of the hearing. Id. at 12.
At step one of the five-step inquiry, the ALJ found that Shapiro was not engaged in substantial gainful activity since her alleged onset date. Id. at 14. At step two, the ALJ considered Shapiro's impairments prior to April 27, 2018 and found that although Shapiro was impaired by her “history of thyroid surgery and vocal paresis; lumbar degenerative disc disease; and cervicalgia, ” these impairments did not qualify as severe. Id. With respect to the period ending on April 27, 2018, the ALJ found that Shapiro's “statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely consistent” with the evidence in the record. Id. at 15. Moreover, the ALJ concluded that her vocal cord and thyroid issues arose “well before the alleged onset date” and that there was no evidence to establish that these issues “significantly limited” her ability to perform basic work-related activities. Id. at 16. The ALJ afforded “little weight” to Dr. Leahy's finding that Shapiro had “limited voice use” as it was a vague conclusion, and observed that Dr. Leahy's opinion that Shapiro is “unable to work full time” is not supported by the record and, in any event, is an issue reserved for the Commissioner. Id. at 17. The ALJ also noted that “Dr. Salon offered the only medical opinion regarding [Shapiro's] musculoskeletal impairments during this period, and he found no limitations.” Id. at 17. Additionally, the ALJ considered Shapiro's obesity and determined that the records did not demonstrate that it caused “more than minimal functional limitations, ” and that no record of treatment for hand or neck pain during this period meant that there was “no medically determinable hand or knee impairment.” Id. at 17. The ALJ found that Shapiro's MRIs, x-rays, and physical exams did not reflect the level of pain she alleged. Id. at 16-17. Taken together, the ALJ found none of Shapiro's impairments to be severe prior to April 27, 2018.
However, the ALJ found that Shapiro did have severe impairments of bilateral wrist degenerative joint disease, bilateral shoulder tendinosis, lumber degenerative disc disease, and cervical bulges beginning on April 27, 2018 (the initial treatment date for her injury from her fall). Id. at 18. In making this determination, the ALJ relied on objective medical findings that established her wrist injuries and Dr. Ravi's consultative examination that revealed a worsening of Shapiro's neck and back pain, but not her thyroiditis, vocal cords, or obesity. Id.
At step three, using the April 27, 2018 onset date, the ALJ found that none of Shapiro's impairments met or equaled the severity of listings in 20 CFR Part 404, subpart P, appendix 1, including, in particular, listings contained in 1.00 (Musculoskeletal System). Id. Before evaluating step four, the ALJ determined Shapiro's RFC to be limited to “light work . . . except she can occasionally reach, climb, balance, stoop, kneel, crouch, and crawl.” Id. In making this determination, the ALJ considered medical imaging evidence from x-rays and ultrasounds of Shapiro's wrists, shoulders, and neck, and Dr. Gray's treatment notes, which demonstrated continuing treatment for her pain following the injury from her fall. Id. at 18-19. The ALJ also weighed the medical opinions and afforded “significant weight” to Dr. Ravi's opinion that Shapiro was “limited to light work with only occasional reaching” as it was supported by positive findings from his examination of Shapiro and was consistent with other evidence in the record, including treating records and imaging studies. Id. at 19. The ALJ also credited Shapiro's statements about the severity of her symptoms after April 27, 2018 and found that they were “reasonably consistent with the medical evidence and other evidence in the record.” Id. at 20.
At step five, the ALJ determined that Shapiro had “no past relevant work” and, given her demographics and her “closely approaching retirement age, ” that there were no jobs that existed in significant numbers in the national economy that she could perform. Id. Accordingly, the ALJ found Shapiro was disabled beginning on April 27, 2018 through the date of his decision. Id.
C. The Appeal Council's Decision
Upon review, the Appeals Council found the ALJ's “decision could not be effectuated as written” as it contained a legal error. Id. at 287. In a decision dated June 28, 2019, the Council found that Shapiro could not be entitled to a period of disability starting on April 27, 2018 because that date was within five months of Shapiro's date on which she reached her full retirement age (August 2018), in violation of 20 CFR §§ 404.320 and 404.316. Id. at 5. As a result, the Appeals Council determined that the ALJ's decision contained an error of law and found that Shapiro was not entitled to any disability insurance benefits. Id. at 5-6.
D. Analysis
In his motion, the Commissioner contends that the disability determination is supported by substantial evidence and should be affirmed. Notwithstanding the fact that the Commissioner's motion is unopposed, the Court “may not find for the moving party without reviewing the record and determining whether there is a sufficient basis for granting the motion.” Polanco v. Comm'r of Soc. Sec., 304 F.Supp.3d 345, 356 (S.D.N.Y. 2018) (citation omitted). Moreover, although Shapiro did not file her own motion or reply to the Commissioner's motion, “the Court construes her complaint liberally ‘to raise the strongest arguments it suggests, specifically that the ALJ did not comply with the applicable legal standards and/or made a determination that was not supported by substantial evidence regarding [her] alleged disability.'” Fields v. Saul, No. 19-CV-1423 (AT) (JLC), 2020 WL 3041489, at *15 (S.D.N.Y. June 8, 2020) (quoting Downes v. Colvin, No. 14-CV-7147 (JLC), 2015 WL 4481088, at *12 (S.D.N.Y. July 22, 2015)), adopted by 2020 WL 3546912 (June 30, 2020).
The Commissioner argues that there is substantial evidence to support the determination that Shapiro did not have a severe impairment during the relevant period. Def. Mem. at 20-25. The Court interprets this argument as addressing the finding of pre-April 27, 2018 non-severe impairments only, as the ALJ made clear in his decision that Shapiro did, in fact, have severe impairments beginning April 27, 2018. In his memorandum of law, the Commissioner does not discuss either the ALJ's post-April 27, 2018 findings, or the Appeals Council's decision.
1. The ALJ Fulfilled His Duty to Develop the Record
Because Shapiro proceeded pro se, the ALJ had a heightened duty to develop the factual record. See Emerick v. Saul, No. 19-CV-2826 (AMD), 2020 WL 4504638, at *3 (E.D.N.Y. Aug. 5, 2020) (citations omitted). Under this heightened standard, “[t]he ALJ must adequately protect a pro se claimant's rights by ensuring that all of the relevant facts are sufficiently developed and considered and by scrupulously and conscientiously prob[ing] into, inquiring] of, and exploring] for all the relevant facts.” Moran v. Astrue, 569 F.3d 108, 113 (2d Cir. 2009) (alterations in original) (quotations and citations omitted). The ALJ must “make every reasonable effort to obtain . . . a report that sets forth the opinion of th[e] treating physician as to the existence, the nature and the severity of the claimed disability.” Cabrera v. Astrue, No. 06-CV-9918 (JCF), 2007 WL 2706276, at *8 (S.D.N.Y. Sept. 18, 2007) (citations omitted), modified on reconsideration, 2008 WL 144697 (Jan. 16, 2008). “‘Reasonable effort' includes not only seeking medical records from treating physicians, but also issuing and enforcing subpoenas and ‘advising the plaintiff of the importance of the evidence.'” Emerick, 2020 WL 4504638, at *3 (quoting Jones v. Apfel, 66 F.Supp.2d 518, 524 (S.D.N.Y. 1999)). “The ultimate question is whether the administrative record is ‘robust enough to enable a meaningful assessment of the particular conditions on which the petitioner claims disability.'” Vargas v. Comm'r of Soc. Sec., No. 19-CV-664 (LJL) (JLC), 2020 WL 4135667, at *19 (S.D.N.Y. July 21, 2020) (quotation omitted), adopted by 2020 WL 4937480 (Aug. 24, 2020).
Here, the record demonstrates that the ALJ made reasonable efforts to fully develop the record. Shapiro was first notified of the importance of submitting evidence regarding her disability on November 18, 2016. AR at 204-06. At the initial hearing on January 4, 2019, the ALJ inquired about the names and addresses of physicians that were treating her for any condition. AR at 169. When Shapiro was unable to provide this information, the ALJ directed her to fill out a “recent medical treatment list” with information about her doctors and return it to him immediately. Id. at 170. Case managers followed up with Shapiro on February 11 and February 27, 2019 and requested that she provide the list of physicians as soon as possible, id. at 357-58; however, Shapiro never provided a completed list, see id. at 176. As a result, the ALJ only subpoenaed the physicians that were identified in the record, including Dr. Broyer from the Rothman Institute and Drs. Leahy, Kearny, and Campe from Pennsylvania Hospital. Id. at 324 (identifying Dr. Kevin Leahy from Pennsylvania Hospital); id. at 325 (identifying Zach Boyer from Rothman Institute); id. at 339 (identifying Drs. Rosemary Kearney and Lauren Campe from Pennsylvania Hospital); id. at 279-82 (subpoena for records at Pennsylvania Hospital), id. at 392-96 (subpoena for records at Rothman Institute). The subpoenaed parties responded by providing all of the relevant records in their possession. Id. at 176. As noted in his decision, the ALJ also accepted additional treatment notes provided by Shapiro on the morning of her April 2, 2019 hearing. Id. at 12.
The ALJ ultimately collected treatment notes from Dr. Broyer (September 2014 to January 2017), Dr. Leahy (June 2015 to January 2019), Dr. Zheng (May 2018 to March 2019), Dr. Gray (April 2018 to June 2018), Dr. Brady (April 2018 to January 2019), Dr. Caldera (November 8, 2018), and Dr. Farber (December 12, 2018) in addition to opinions from Drs. Salon, Ravi, Leahy, Brady, and Belok. The ALJ had requested that Dr. Broyer complete a Medical Source Statement for Shapiro, but he never returned the form. Id. at 176, 393.
Missing from the record, however, are treatment notes from two doctors at Pennsylvania Hospital: Dr. Rosemary Kearney (primary care physician) and Dr. Lauren Campe (speech therapist). The ALJ's subpoena to Pennsylvania Hospital, which sought “all records including, but not limited to, treatment notes . . . and diagnostic test results for Marcia Shapiro . . . for the period January 1, 2014 to the present, ” implicitly requested that the available records from Drs. Kearney and Campe during the relevant time frame be produced. Id. at 279. Although Pennsylvania Hospital produced treatment records in response to the subpoena, it did not produce any records for those two doctors.
As an initial matter, it is unclear whether there are records from Drs. Kearney or Campe during the relevant time period. Indeed, besides listing these physicians in her disability report, Shapiro did not refer to them during the ALJ hearings (or in any other submission), and there is nothing to suggest that treatment records from these physicians contain information about her alleged disabilities during the relevant time period. See, e.g., Morris v. Berryhill, 721 Fed.Appx. 25, 28 (2d Cir. 2018) (duty to develop record fulfilled where “the potentially missing records here would consist of routine check-up and progress notes, with no indication that they contain significant information”). Even if there were responsive records that Pennsylvania Hospital did not produce, this fact is insufficient to establish that the ALJ violated his duty to develop the record. As the Second Circuit has observed, the duty to develop is not violated where the ALJ received requested hospital records and had no reason to believe that the records were incomplete. Drake v. Astrue, 443 Fed.Appx. 653, 656 (2d Cir. 2011) (“While [hospital] had additional records from January and February 2008 that it did not send to the ALJ, [hospital's] failure does not mean that the ALJ did not exercise reasonable efforts to develop the record. The ALJ in fact requested those records, and nothing in the record suggests that the ALJ should have known that [hospital's] response was incomplete.”). Accordingly, to the extent there is a gap in the record with respect to Drs. Kearney and Campe-and it is not clear that there is-the ALJ has fulfilled his duty to develop the record.
It appears that Dr. Kearney saw Shapiro at some point prior to June 2015 as treatment notes from Dr. Leahy dated June 19, 2015 indicate Dr. Kearney as the referring provider. Id. at 485.
Additionally, the ALJ fulfilled his duty to develop the record with respect to Shapiro's physician in New York. The record reflects that Shapiro had consulted with an orthopedic surgeon in New York about her knee pain because, as she described, the pain “is bad enough that it limits her walking.” Id. at 695; see id. at 510. Although Shapiro informed the ALJ about her knee impairment and her doctor in New York, see, e.g., id. at 180 (“Q. Okay. What Difficulties did you have? A. Well, I have no cartilage in my knees.”), 182 (“[I]t's been recommended to me, for a very long time, before July of 2016, that I have knee replacements”), 185 (“I'm also treating in New York.”), the ALJ explained that he was unable to retrieve these missing records because Shapiro failed to provide contact information for this surgeon. See id. at 175-76, 183, 185.
As a general matter, “[a]n ALJ is not required to attempt to obtain additional evidence to fill any gap in the medical evidence; rather an ALJ is required to do so only where the facts of the particular [c]ase suggest that further development is necessary to evaluate the claimant's condition fairly.” Petrovic v. Comm'r of Soc. Sec., No. 15-CV-2194 (KMK) (PED), 2016 WL 6084069, at *10 (S.D.N.Y. Aug. 25, 2016) (quoting Francisco v. Comm'r of Soc. Sec., No. 13-CV-1486 (TPG) (DF), 2015 WL 5316353, at *11 (S.D.N.Y. Sept. 11. 2015)), adopted by 2016 WL 6082038 (Oct. 14, 2016). While additional records may have provided further context regarding her knee impairment, they were not needed to fairly evaluate her condition as the record already contained treatment notes and opinions concerning that impairment. See, e.g., AR at 370 (Dr. Salon reviewed x-ray and MRI and found torn meniscus, but advised no surgery); id. at 377 (Dr. Ravi recommending that Shapiro avoid bending due to bilateral knee pain); id. at 526 (Shapiro reports knee pain “is bad enough that it limits her walking” and she plans to have knee surgery); id. at 536 (Dr. Brady assessing osteoarthritis in both of Shapiro's knees); see also Babcock v. Comm'r of Soc. Sec., No. 17-CV-6484 (CJS), 2019 WL 1649347, at *7 (W.D.N.Y. Apr. 17, 2019) (no violation of duty to develop where “any missing records would be merely cumulative”).
In any event, the ALJ's attempts to gather records from Shapiro's orthopedist satisfied his duty to develop the record. The ALJ requested contact information for her doctors (including her knee doctor in New York) on at least three separate occasions, but Shapiro was never able to provide the most basic information (e.g., name, contact information, etc.) for the ALJ to retrieve the records. Id. at 169 (January 4, 2019 request for list of doctors); id. at 357 (February 1, 2019 follow-up request), id. at 358 (February 27, 2019 follow-up request). The ALJ's several attempts to gather evidence are sufficient to satisfy his duty to develop the record.
Shapiro also reported during the hearing that she had “a plethora of other records” that did not get to the ALJ. Id. at 183. The vague description of these missing records, without more, is insufficient to establish that there is an incomplete record.
At bottom, “[a]lthough the ALJ has an affirmative duty to develop the administrative record, the ALJ's obligation is not unlimited.” Martin v. Saul, No. 18-CV-1478 (HKS), 2020 WL 5096057, at *4 (W.D.N.Y. Aug. 28, 2020). Here, the ALJ made reasonable and diligent efforts to seek all relevant evidence-including subpoenaing multiple sources (and receiving records in response), requesting information about Shapiro's physicians on multiple occasions, and soliciting and accepting records provided by Shapiro-such that he has fulfilled his duty to develop the record. See Jones, 66 F.Supp.2d at 524 (reasonable efforts in developing the record “include[] issuing and enforcing subpoenas requiring the production of evidence, as authorized by 42 U.S.C. § 405(d), and advising the plaintiff of the importance of the evidence”).
2. The ALJ's Decision Was Supported By Substantial Evidence
Because Shapiro is proceeding pro se and has not identified any errors in the underlying proceedings, the Court will analyze each step of the sequential analysis to ensure it is supported by substantial evidence. See, e.g., Vargas, 2020 WL 4135667, at *20 (analyzing whether substantial evidence supported ALJ's findings at each stage of five-step inquiry in pro se case).
a. The ALJ Properly Found Shapiro Had Not Engaged in Substantial Gainful Activity
“At step one of the sequential analysis, the ALJ must consider a plaintiff's work activity during the period of alleged disability.” Parks v. Comm'r of Soc. Sec., No. 14-CV-1367 (GTS), 2016 WL 590227, at *4 (N.D.N.Y. Feb. 11, 2016) (citing C.F.R. § 404.1520(a)(i)). The ALJ's finding at this step-that Shapiro had not engaged in substantial gainful activity since her alleged onset date as her income from 2016 through 2018 remained below substantial gainful activity levels-is supported by substantial evidence. AR at 321 (listing yearly income of $362.00 for 2016, $1,867.11 for 2017, and $194.00 for 2018); Substantial Gainful Activity, Social Security Administration, available at https://www.ssa.gov/oact/cola/sga.html (listing monthly substantial gainful activity amounts for the relevant years as $1,130 per month (2016), $1,170 per month (2017), and $1,180 per month (2018)). Accordingly, the Court finds no error at this step.
b. The ALJ Properly Found That Shapiro's Severe Impairments Began on April 27, 2018
At step two, the ALJ found that Shapiro's history of thyroid surgery and vocal cord paresis, lumbar degenerative disc disease, and cervicalgia did not qualify as severe impairments prior to April 27, 2018, but Shapiro did develop severe impairments beginning on April 27, 2018 in the form of bilateral wrist degenerative joint disease, bilateral shoulder tendinosis, lumber degenerative disc disease, and cervical bulges. Id. at 14. As set forth below, substantial evidence supports this finding.
i. Shapiro's Impairments Prior to April 27, 2018
With respect to Shapiro's back and neck pain, the record demonstrates that she experienced pain and tenderness, but examination results established relatively normal findings with no swelling, full range of motion, and full upper extremity strength and motor strength in her back. Id. at 428-29, 569. While she reported that her pain was exacerbated after she was hit by a vehicle in October 2015, she did not need assistance to perform activities of daily living following the accident. Id. at 428. In fact, Shapiro reported that she traveled between Philadelphia and New York to take care of her mother and the evidence in the record demonstrates that she was able to cook meals, clean, wash clothes, walk, use public transportation, shop, pay bills, read, and engaged in some work as an actor during this period. See, e.g., id. at 171, 345-49, 364, 371. Moreover, based on a subsequent examination in 2016, Dr. Salon determined that Shapiro had no restrictions due to her neck and back pain. Id. at 372, 380. The ALJ properly assigned this opinion “significant weight” as it was supported by Dr. Salon's examination findings and was consistent with the medical evidence, including that no other medical source opined that the claimant had limitations. Id. at 17.
Shapiro's back and neck pain were aggravated again after “someone accidentally jammed something hard into her back” at work in August 2017; however, x-rays taken after that accident were “unremarkable, ” id. at 529, 531, and an electromyography of her upper extremities, taken on April 4, 2018, was normal, id. at 741. Moreover, Shapiro was able to manage her pain with epidural injections and Vicodin and reported diminishing symptoms at the beginning of 2018, including increased shoulder movement and range of motion with decreased pain. Id. at 423, 425, 526, 566, 675. Accordingly, there is substantial evidence supporting the ALJ's finding that Shapiro's impairments did not qualify as severe leading up to April 27, 2018.
There is also substantial evidence to support the ALJ's determination that Shapiro's voice and thyroid issues were not severe impairments. The ALJ found that the “records do not show that the claimant's vocal cord or thyroid issue significantly limited (or was expected to significantly limit) her ability to perform basic work-related activities for 12 consecutive months.” Id. at 16-17. In making this determination, the ALJ afforded “little weight” to Dr. Leahy's letter, dated September 16, 2016, because his opinion that Shapiro had limited voice use was “vague.” Id. at 17. He also found that Dr. Leahy's conclusion that Shapiro was “unable to work full time” was unsupported by the record and, in any event, was an issue reserved for the Commissioner. Id. at 17. These findings are also supported by substantial evidence. As the ALJ noted, Shapiro underwent medialization thyroplasty surgery for vocal cord paresis and hoarseness on May 4, 2015. Id. at 473. Treatment notes from her follow-up visit on July 9, 2018 establish that the surgery was successful. Id. at 559 (Dr. Leahy reporting “[s]he is doing well” and her “voice is good”). By January 11, 2019, Shapiro made relatively minor complaints and Dr. Leahy reported relatively normal findings upon examination. Id. at 50809. Given the successful surgery, large gap in time between appointments, and relatively normal examination findings, the record supports the ALJ's finding that Shapiro's vocal cord and thyroid conditions did not constitute severe impairments. Moreover, although Dr. Leahy opined that Shapiro is unable to work full time, this conclusion is not supported by the record and is, as a matter of law, reserved for the Commissioner. See Guzman, 2011 WL 666194, at *10 (a physician's “opinion that the claimant is ‘disabled' or ‘unable to work' is not controlling”) (citing 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1)).
Taken together, there is substantial evidence to support the ALJ's finding that Shapiro's conditions prior to April 27, 2018 did not limit her ability to work and, therefore, did not qualify as severe impairments.
ii. Shapiro Had Severe Impairments Beginning April 27, 2018
Substantial evidence supports the ALJ's decision that Shapiro's impairments qualified as severe beginning on April 27, 2018 as a result of worsening neck and back problems and, in particular, the injury from her fall on April 20, 2018. With respect to the injury from her fall, Shapiro suffered a torn ligament in her left wrist that required her to wear a short arm cast on her left wrist and a splint on her right wrist. Id. at 575, 585. At the same time, the record demonstrates that Shapiro began to experience “more pain in the lower back” and neck and decreased range of motion and pain in her right shoulder as a result of an incident at physical therapy on January 22, 2018. Id. at 566. While she maintained full strength in her upper extremities, examination results established right shoulder, cervical, and lumber range of motion with pain and positive signs of a right shoulder impingement. Id. at 567-68. Based on an ultrasound of her right shoulder, Shapiro was diagnosed with rotator cuff tendinosis, an impingement, and a low-grade partial tear of supraspinatus in her right shoulder on July 12, 2018. Id. at 555. The combinations of her newly-acquired wrist injury along with her worsening neck, back, and shoulder impairments caused physical limitations and restricted movement, as reflected in the opinions of Drs. Ravi and Belok. Id. at 380 (Dr. Ravi opinion, dated June 13, 2018, assessing moderate limitations and recommending Shapiro avoid bending due to right shoulder, back, and wrist pain); id. at 461-66 (Dr. Belok opinion, dated March 21, 2019, finding restricted movement and radiating pain).
In sum, there is substantial evidence to support the ALJ's finding that Shapiro experienced severe impairments starting on April 27, 2018. While the record contains some evidence of worsening conditions and other impairments occurring prior to April 27, 2018, there is substantial evidence to support ALJ's determination that April 27, 2018 is the date on which Shapiro's impairments became severe-in large part due to her fall a week earlier. Indeed, “[e]ven 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.” Mayo v. Berryhill, No. 17-CV-3586 (PKC) (KNF), 2019 WL 967339, at *1 (S.D.N.Y. Feb. 28, 2019) (quoting Genier, 606 F.3d at 49).
iii. Shapiro's Knee Impairment
Notably, the ALJ did not identify whether Shapiro's knee impairment constituted a severe impairment at step two. “The failure to address a condition at step two will constitute harmless error, and therefore not warrant remand, if, after identifying other severe impairments, the ALJ considers the excluded conditions or symptoms in the subsequent steps and determines that they do not significantly limit the plaintiff's ability to perform basic work.” Eralte v. Colvin, No. 14-CV-1745 (JCF), 2014 WL 7330441, at *10 (S.D.N.Y. Dec. 23, 2014) (citing Reices-Colon v. Astrue, 523 Fed.Appx. 796, 798 (2d Cir. 2013)).
Upon review, the Court finds that the ALJ provided sufficient analysis of Shapiro's knee impairment at subsequent steps of the sequential analysis, see, e.g., AR at 16, 19, thereby rendering any error at step two harmless. Moreover, the evidence in the record establishes that Shapiro's knee impairment was not severe prior to April 27, 2018. For example, Dr. Salon examined Shapiro on August 10, 2016 and found that she had a normal gait and stance, did not use an assistive device, rose from her chair without difficulty, and had full range of lower extremities. Id. at 371-72. Instead, treatment records reveal limitations due to Shapiro's knee impairment only after April 27, 2018. See, e.g., id. at 378 (Dr. Ravi reporting in June 2018 that Shapiro had a moderately antalgic gait, experienced discomfort standing, and could not walk a block at a reasonable pace on rough or uneven surfaces); id. at 379-80 (Dr. Ravi recommending in June 2018 that Shapiro avoid bending due to bilateral knee pain); id. at 526 (Shapiro reporting her knee pain is bad enough to limit her walking at a November 2018 appointment).
Given the ALJ's analysis of Shapiro's knee impairment at other stages of his decision and the fact that the record evidence establishes that her knee impairment did not cause any significant limitations prior to April 27, 2018, any error by the ALJ at step two is harmless.
c. Substantial Evidence Supports the ALJ's Decision That Shapiro's Impairments Did Not Meet the Listings
At step three, the ALJ properly found that Shapiro's impairments were not severe enough to meet or medically equal the listings under Section 1.00. AR at 18. “While the ALJ could have been ‘more specific in detailing the reasons for concluding' that the combined effects of plaintiff's conditions did not satisfy a listed impairment, there is an utter lack of ‘compelling contradictory evidence from the plaintiff that plaintiff did satisfy any listing.” Barone v. Colvin, No. 15-CV-2051 (KBF), 2016 WL 4126544, at *9 (S.D.N.Y. Aug. 2, 2016) (quoting Otts v. Comm'r of Soc. Sec., 249 Fed. App'x 887, 889 (2d Cir. 2007)). Nothing in the record establishes that Shapiro was unable to ambulate or perform fine or gross motor movements effectively. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 1.02. Nor did she undergo any amputations or sustain a fracture or soft tissue injury. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 1.03. And any disorder of her spine was not severe enough to satisfy the medical criteria required under Listing 1.04. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 1.04. For example, Shapiro did not establish nerve root compression, motor loss, or sensory or reflex loss under Paragraph A; in fact, the record establishes the absence of this criteria. See, e.g., id. at 533 (Dr. Caldera finding no evidence of cord compression); id. at 428 (Dr. Broyer found no weakness in cervical spine); id. at 429 (full back strength, intact sensation, and normal reflexes). In addition, absent from the record is any evidence establishing medical criteria under Paragraphs B or C, including any diagnoses of spinal arachnoiditis or lumbar spinal stenosis.
Accordingly, the ALJ properly concluded that Shapiro's impairments did not meet or medically equal any listing.
d. The ALJ Properly Weighed the Medical Evidence and Found Shapiro Was Disabled as of April 27, 2018
Before evaluating step four, the ALJ determined Shapiro's residual functional capacity to be limited to “light work . . . except that she can occasionally reach, climb, balance, stoop, kneel, crouch, and crawl.” Id. at 18. This determination is well-supported by the evidence in the record. In making his RFC determination, the ALJ properly relied on imaging studies from April 27, 2018 through February 19, 2019, which provided objective evidence of Shapiro's impairments, including mild osteoarthritis in her left wrist and mild degenerative changes in both of her wrists, id. at 617, 623, degenerative changes in her cervical spine, id. at 592, and tendinosis and impingements in both of her shoulders with a low-grade partial tear in her right shoulder, id. at 555, 589-90.
Moreover, the ALJ properly weighed the opinion evidence from Dr. Ravi. The ALJ assigned “significant weight” to Dr. Ravi's opinion that Shapiro was limited to light work. Id. at 19. Dr. Ravi specifically opined on Shapiro's limitations, finding that she had “[m]oderate limitations standing, walking, pushing, pulling, lifting, and carrying, ” and that she should “[a]void bending.” Id. at 380. This opinion is supported not only by the examination findings that Dr. Ravi submitted with his report-which showed moderate limitations due to her impairments, see id. at 382-85-but also other treatment notes and opinions in the record. See, e.g., id. at 46166, 555, 566-68. The ALJ also properly relied on treatment notes from Dr. Grey regarding the injury from Shapiro's fall, which establish that she sustained significant injury to her wrists requiring a short arm case, splint, and injections to manage pain, and that she experienced worsening symptoms in her low back and upper extremities. Id. at 579-83, 581-85.
In making his RFC determination, the ALJ failed to discuss Dr. Brady's treatment notes. Nonetheless, this omission does not warrant remand. As an initial matter, “an ALJ is not required to discuss every piece of evidence submitted.” Brault, 683 F.3d at 448. Moreover, upon review, Dr. Brady's findings are consistent with the other evidence relied upon by the ALJ. For example, Dr. Brady assessed bilateral wrist pain and low back pain and continued prescribing Vicodin for Shapiro's pain. See, e.g., id. at 535-36, 675, 740-41. Therefore, the ALJ did not commit any error by failing to evaluate this evidence. Cf. Scully v. Berryhill, 282 F.Supp.3d 628, 637 (S.D.N.Y. 2017) (finding error where uncited evidence “contained findings inconsistent with the ALJ's conclusions”).
Dr. Brady also found that Shapiro had osteoarthritis in her knees and suffered from bilateral knee pain at an October 23, 2018 visit, and his treatment notes state that Shapiro reported knee pain “bad enough that it limits her walking” at a November 9, 2018 appointment. Id. at 526, 535-36. Although the ALJ did not specifically discuss Dr. Brady's treatment notes, the ALJ does include a discussion of Shapiro's lower extremities. See, e.g., id. at 19 (noting evidence showing Shapiro's “gait was moderately antalgic” and “she had discomfort standing”). In any event, even if an evaluation of Dr. Brady's findings would have confirmed a greater limitation than that described in the RFC determination, incorporating additional limitations in the RFC would have made no difference to the outcome as the ALJ ultimately found that Shapiro was disabled.
Based on Shapiro's RFC and her demographic information, the ALJ properly found that Medical Vocational Guideline 202.04 directed a finding of “disabled” as Shapiro's age was advanced (i.e., 55 years old or over) and her previous work experience was unskilled. See Medical Vocational Guideline 202.04, 20 C.F.R. Pt. 404, Subpt. P, App. 2. In sum, the ALJ's disability determination is supported by substantial evidence.
3. The Appeals Council Properly Determined That Shapiro Was Not Eligible for DIB at the Start of Her Disability Period
Although the ALJ properly found that Shapiro met the medical criteria for a disability finding, he failed to evaluate the non-medical criteria. Upon review of the ALJ's decision, the Appeals Council determined that Shapiro was not entitled to disability insurance benefits given her retirement age.
In order to obtain disability benefits, a claimant must meet certain nonmedical requirements. One such requirement is that a claimant must be disabled for five full consecutive months. 20 C.F.R. § 404.315(a)(4). “[B]enefits cannot begin earlier than the first month following that [waiting] period” and benefits end “[t]he month before the month [the claimant] attain[s] full retirement age.” 20 C.F.R. § 404.316. As the Appeals Council pointed out in its decision, Shapiro was unable to complete that waiting period. Shapiro was found to be disabled as of April 27, 2018 and, therefore, she needed to wait five months from that date before she could start collecting her benefits. But Shapiro reached her retirement age of 66 years old in August 2018, and was therefore not entitled to benefits after July 2018 (or one month before the month she attains full retirement age). See 20 CFR § 404.409; 20 C.F.R. § 404.316(b)(2). As a result, Shapiro's could not complete the five-month period as her eligibility for benefits ended before the benefits could begin. Because she could not meet the non-medical requirements as a matter of law, the Appeals Council properly found that she was not entitled to disability insurance benefits.
Under 20 C.F.R. § 404.315, “[claimants] are entitled to disability benefits while disabled before attaining full retirement age as defined in § 404.409 if . . . [they] have been disabled for 5 full consecutive months. This 5-month waiting period begins with a month in which [the claimant was] both insured for disability and disabled.”
Under 20 C.F.R. § 404.316, “[claimants'] entitlement to disability benefits ends . . . [t]he month before the month you attain full retirement age as defined in § 404.409.” Pursuant to 20 CFR § 404.409, the retirement age for Shapiro, who was born on August 6, 1952, is 66 years old.
III. CONCLUSION
Because the ALJ's findings that Shapiro was not disabled before April 27, 2018, and disabled as of April 27, 2018, were supported by substantial evidence, and the Appeals Council correctly determined that Shapiro was not eligible for disability insurance benefits as a matter of law given her retirement age, I recommend that the Commissioner's motion be granted.
PROCEDURE FOR FILING OBJECTIONS
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 to file written objections. See also Fed.R.Civ.P. 6. 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 Alison J. Nathan, United States Courthouse, 40 Foley Square, New York, NY 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Nathan.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).