Opinion
6:20-CV-06376 EAW
2021-09-20
VINCENT B., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Jeanne Elizabeth Murray, Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff. Nahid Sorooshyari, Kathryn Sara Pollack, Social Security Administration Office of General Counsel, New York, NY, Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant.
Jeanne Elizabeth Murray, Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff.
Nahid Sorooshyari, Kathryn Sara Pollack, Social Security Administration Office of General Counsel, New York, NY, Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Represented by counsel, Plaintiff Vincent B. ("Plaintiff") brings this action pursuant to Title XVI of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying his application for supplemental security income ("SSI"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 10; Dkt. 12), and Plaintiff's reply (Dkt 13). For the reasons discussed below, the Commissioner's motion (Dkt. 12) is granted and Plaintiff's motion (Dkt. 10) is denied.
BACKGROUND
Plaintiff protectively filed his application for SSI on November 1, 2016. (Dkt. 5 at 20, 127). In his application, Plaintiff alleged disability beginning January 1, 2016, due to the following impairments: left ankle surgery—compound fracture; pain and swelling—had surgery; chronic pain; arthritis in left ankle and foot; and irregular heartbeat. (Id. at 20, 118). Plaintiff's application was initially denied on February 2, 2017. (Id. at 20, 130-41). At Plaintiff's request, a hearing was held before administrative law judge ("ALJ") Brian Kane in Rochester, New York, on March 1, 2019. (Id. at 20, 33-76). On March 18, 2019, the ALJ issued an unfavorable decision. (Id. at 20-28). Plaintiff requested Appeals Council review; his request was denied on April 7, 2020, making the ALJ's determination the Commissioner's final decision. (Id. at 5-8). This action followed.
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("SSA")], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera v. Astrue , 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It is not the Court's function to "determine de novo whether [the claimant] is disabled." Schaal v. Apfel , 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs. , 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law." Byam v. Barnhart , 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler , 748 F.2d 109, 112 (2d Cir. 1984) ).
II. Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Bowen v. City of New York , 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ determines whether the claimant is engaged in substantial gainful work activity. See 20 C.F.R. § 416.920(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act, in that it imposes significant restrictions on the claimant's ability to perform basic work activities. Id. § 416.920(c). If the claimant does not have a severe impairment or combination of impairments, the analysis concludes with a finding of "not disabled." If the claimant does have at least one severe impairment, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant's impairment meets or medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the "Listings"). Id. § 416.920(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. § 416.909), the claimant is disabled. If not, the ALJ determines the claimant's residual functional capacity ("RFC"), which is the ability to perform physical or mental work activities on a sustained basis, notwithstanding limitations for the collective impairments. See id. § 416.920(e).
The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work. Id. § 416.920(f). If the claimant can perform such requirements, then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled. Id. § 416.920(g). To do so, the Commissioner must present evidence to demonstrate that the claimant "retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy" in light of the claimant's age, education, and work experience. Rosa v. Callahan , 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted).
DISCUSSION
I. The ALJ's Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in 20 C.F.R. § 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since November 1, 2016, the application date. (Dkt. 5 at 22).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of posttraumatic arthrosis of the left ankle and obesity. (Id. ). The ALJ further found that Plaintiff's medically determinable impairments of hypertension, palpitations, left pinky injury, and carpal tunnel syndrome were non-severe. (Id. at 22-23). At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. at 23). The ALJ particularly considered the criteria of Listing 1.02 in reaching his conclusion, as well as considering the effect of Plaintiff's obesity as required by Social Security Ruling ("SSR") 02-1p. (Id. ).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform the full range of sedentary work as defined in 20 C.F.R. § 416.967(a). (Id. ).
At step four, the ALJ found that Plaintiff had no past relevant work prior to the alleged onset date. (Id. at 26). The ALJ further found that although Plaintiff could perform his current job as a self-employed individual, there were other jobs existing in the national economy that he could also perform, including the representative occupations of table worker and addresser. (Id. at 26-27). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 27-28).
II. The Commissioner's Determination is Supported by Substantial Evidence and Free from Legal Error
Plaintiff asks the Court to remand this matter to the Commissioner, arguing that (1) the ALJ relied on stale opinion evidence in assessing the severity of Plaintiff's bilateral carpal tunnel syndrome and in assessing the RFC, and he failed to develop the record to obtain additional opinion evidence, and (2) the ALJ failed to hold the record open or consider additional evidence, despite being given proper notice. (Dkt. 10-1 at 1, 10-21). The Court has considered each of these arguments and, for the reasons discussed below, finds them without merit.
A. Plaintiff's Bilateral Carpal Tunnel Syndrome
Plaintiff first argues that the ALJ relied on stale opinion evidence in assessing the severity of Plaintiff's bilateral carpal tunnel syndrome and in assessing the RFC, and he failed to develop the record to obtain additional opinion evidence. (Id. at 10). Plaintiff points specifically to the ALJ's reliance on the opinion offered by Trevor Litchmore, M.D., the consultative examiner, and the opinion offered by state agency physician S. Putcha, M.D., which were offered in January 2017, prior to Plaintiff's diagnosis and treatment for bilateral carpal tunnel syndrome. (Id. ). Plaintiff further contends that, as a result, the ALJ interpreted raw medical data in assessing the RFC and in making the severity determination at step two of the sequential analysis, and failed to develop the record. (Id. ).
In support of his argument that the medical opinions offered by Drs. Litchmore and Putcha are stale, Plaintiff points to a December 26, 2018 visit to the University of Rochester Medical Center (URMC) where he was treated for tingling in his fingertips, assessed with bilateral carpal tunnel syndrome, and prescribed wrist splints, as well as his testimony at the administrative hearing that he was diagnosed with bilateral carpal tunnel syndrome. (Id. at 12). Plaintiff concludes that "it is clear that the ... opinions from Drs. Litchmore and Putcha were rendered stale by Plaintiff's subsequent symptoms and diagnosis of bilateral carpal tunnel syndrome, and stale opinions do not constitute substantial evidence upon which the ALJ could have relied, harmful error for which remand is required." (Id. ). The Court disagrees.
At the administrative hearing, Plaintiff testified that he was diagnosed with carpal tunnel syndrome after he experienced numbness in his hands and tingling, that numbness causes him to drop objects he has held for too long, and that he was prescribed wrist splits, which he was not wearing on the date of the hearing. (Id. at 73-74).
At step two of the sequential analysis, the ALJ addressed Plaintiff's carpal tunnel syndrome diagnosis. Specifically, the ALJ found:
I further conclude that the claimant's carpal tunnel syndrome is not severe, as it does not impose more than minimal functional limitations. In that regard, when the claimant presented for evaluation on December 26, 2018, he reported numbness and tingling in the first through third digits of both hands, but denied weakness or dropping things. Further, there is no indication that the claimant has required more than conservative management consisting of using wrist splints for support (Ex. 15F, 16F).
(Id. at 23).
Although Dr. Litchmore's January 23, 2017 opinion and Dr. Putcha's January 31, 2017 opinion preceded Plaintiff's carpal tunnel syndrome diagnosis, the Court does not find that diagnosis rendered these opinions "stale." "Generally, an ALJ should not rely on ‘stale’ opinions—that is, opinions rendered before some significant development in the claimant's medical history ..., and medical source opinions that are stale and based on an incomplete medical record may not be substantial evidence to support an ALJ's finding." Steve P. v. Comm'r of Soc. Sec. , No. 19-CV-0492 MWP, 2021 WL 307566, at *5 (W.D.N.Y. Jan. 29, 2021) (internal citation, quotations, and alterations omitted). While a medical opinion may be stale "if it does not account for the claimant's deteriorating condition," it is not necessarily stale based on its age. Biro v. Comm'r of Soc. Sec. , 335 F. Supp. 3d 464, 470 (W.D.N.Y. 2018) (citation omitted). "In considering whether a medical opinion is stale, courts have frequently pointed to surgeries occurring subsequent to the medical opinion as evidence of the claimant's deteriorating condition." Nagy v. Saul , No. 19-CV-300-MJR, 2020 WL 3118569, at *5 (W.D.N.Y. June 12, 2020).
Here, Plaintiff has failed to show that his physical condition deteriorated after Drs. Litchmore and Putcha offered their opinions relating to his functional limitations. For example, Plaintiff does not point to evidence demonstrating that his functional limitations changed following his carpal tunnel syndrome diagnoses. Likewise, the Court has reviewed Plaintiff's treatment notes, which similarly fail to demonstrate that Plaintiff required additional limitations based on his carpal tunnel syndrome diagnosis beyond those assessed in January 2017. When Drs. Litchmore and Putcha rendered their opinions, Plaintiff had full grip strength and intact dexterity. (See, e.g. , Dkt. 5 at 485 (on January 23, 2017, Dr. Litchmore found that Plaintiff had "[h]and finger dexterity intact. Grip strength 5/5 bilaterally. The claimant can unzip a zipper, unbutton the buttons, and untie the shoelaces")). Plaintiff's treatment notes following January 2017 do not document any increasing deterioration in his ability to use his hands. (See, e.g. , id. at 640-41 (on December 19, 2017, Plaintiff had mostly normal physical examination, with no complaints relating to his extremities); id. at 666 (on March 9, 2018, plaintiff had normal physical examination, with no complaints relating to the use of his extremities)). During the December 26, 2018 evaluation where Plaintiff was diagnosed with carpal tunnel syndrome, he complained of numbness and tingling in the fingertips of his first through third digits, but had no trauma to his hands, no wrist pain, and he was not dropping objects. (Id. at 970). Further, he had no wrist deformity or swelling and normal grip strength. (Id. at 971). Plaintiff was prescribed wrist splits to help with support and to take ibuprofen sparingly. (Id. ). In other words, the medical records reveal that Plaintiff's condition following January 2017 and through December 2018 did not differ materially from what it was when Drs. Litchmore and Putcha offered their opinions as to Plaintiff's functioning. See Camille v. Colvin , 652 F. App'x 25, 28 n.4 (2d Cir. 2016) (there is no "unqualified rule that a medical opinion is superseded by additional material in the record").
Although Plaintiff has demonstrated that he received a diagnosis of carpal tunnel syndrome following the January 2017 evaluations performed by Drs. Litchmore and Putcha, the ALJ properly concluded that Plaintiff's carpal tunnel syndrome did not impose more than minimal functional limitations and required only conservative treatment. Plaintiff has failed to point to evidence suggesting that he required additional functional limitations—such as that he received surgery for his carpal tunnel syndrome—beyond those already assessed by the ALJ, or otherwise dispute that he would not be capable of performing sedentary work. Given that Plaintiff's condition did not significantly deteriorate following January 2017, the RFC is supported by substantial evidence and the ALJ was not required to further develop the medical record to obtain additional opinion evidence relative to Plaintiff's carpal tunnel syndrome. Remand is not required on this basis.
B. ALJ's Failure to Hold Open the Record
Plaintiff's next and final argument is that the ALJ erred by failing to hold open the record after the March 2019 administrative hearing to receive additional orthopedic treatment records from URMC and a treating opinion from Irvin C. Oh, M.D. (Dkt. 10-1 at 18). The treatment records were submitted after the hearing but before the ALJ's written determination was issued. (Id. ). Plaintiff cites to the agency's "five-day rule," which provides that claimants "must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence ... no later than 5 business days before the start of the scheduled hearing" unless certain exceptions are met, see 20 C.F.R. § 416.1435(a), contending that because he gave the ALJ notice that he would be submitting further records more than five days prior to the hearing, he complied with the five-day rule. (Dkt. 10-1 at 19-20). In response, the Commissioner contends that there is no evidence that Dr. Oh ever rendered an opinion, the ALJ was not required to keep the record open based on the mere possibility that Dr. Oh may render an opinion, and while Plaintiff had informed the ALJ of a possible "treating source statement" on February 5, 2019, at least five days prior to the start of the hearing on March 1, 2019, the letter does not state that Plaintiff requested treatment notes. (Dkt. 12-1 at 24-25).
Prior to the hearing, on February 5, 2019, Plaintiff sent a letter to the ALJ, explaining that he was requesting a "Treating Medical Source Statement" from URMC Orthopaedics and Rehabilitation Clinton Crossing, and that such notice was in compliance with the agency's five-day rule under § 416.1435(a). (Id. at 301). Thereafter, on February 21, 2019, counsel submitted a brief in support of Plaintiff's disability claim, stating that "[m]y office has requested updated orthopedic records and a medical source statement from the claimant's treating orthopedist, Dr. Irvin Oh," but had not received a response. (Id. at 303). Then, at the hearing, counsel informed the ALJ that he was "hoping to get a statement from Dr. Oh." (Id. at 40). The ALJ explained to Plaintiff that he would not continue to hold the record open for these records, as it was "getting kind of late now," nor would he have a medical expert examine the file. (Id. ). Following the hearing on March 15, 2019, Plaintiff finally e-filed the records from URMC dated September 9, 2017 through December 28, 2018 (id. at 82-113); however, it is not entirely clear if the ALJ received the records. It does not appear that a medical source statement from Dr. Oh was ever received.
The Appeals Council received the records from URMC and found that this evidence did "not show a reasonable probability that it would change the outcome of the decision." (Dkt. 5 at 6).
The Court finds that the ALJ did not err in declining to consider the additional treatment records submitted after the hearing, nor did he err by not holding the record open to receive a statement from Dr. Oh. As to Dr. Oh's statement, it is not clear that any such statement exists. Plaintiff first referenced such a statement on February 5, 2019, but almost one month later at the hearing stated that he was still "hoping" to get a statement from Dr. Oh. A statement for Dr. Oh was not submitted to the Appeals Council, and Plaintiff does not state that he eventually received this statement in his motion papers. The ALJ is not required to hold open the record for an infinite amount of time in the hope that he will receive certain medical evidence, and "[i]t would completely erode the purpose of the five day rule to require an ALJ to accept late records without regard to whether a claimant diligently attempted to submit the records in a timely manner." Ashley S. v. Comm'r of Soc. Sec. , No. 19-CV-1033, 2021 WL 763725, at *4 (W.D.N.Y. Feb. 26, 2021) ; see also Yucekus v. Comm'r of Soc. Sec. , 829 F. App'x 553, 558 (2d Cir. 2020) ("Although Yucekus claims there are additional records that should have been considered, he has not proffered such evidence and has not explained why he could not have obtained and presented such evidence to the ALJ."). The same reasoning applies to the additional treatment records from URMC. These treatment records were not noticed in Plaintiff's February 5, 2019 letter relating to outstanding records and were only referenced in Plaintiff's brief submitted on February 21, 2019. At the hearing, counsel was still not in possession of the records. The ALJ issued a decision on March 18, 2019—only three days after Plaintiff e-filed the late medical records—and there is no evidence demonstrating that the ALJ received the records prior to issuance of his written determination.
Even if the ALJ did err in excluding the medical records, the Court finds that any error is harmless. These records are before the Court, and most of them are not probative of Plaintiff's functioning, nor do they suggest that he requires functional limitations beyond those already provided in the RFC. See Zabala v. Astrue , 595 F.3d 402, 409 (2d Cir. 2010) (remand not required where ALJ failed to consider report by treating physician, where the evidence was not significantly more favorable to the claimant and was "essentially duplicative of evidence considered by the ALJ"). While the records contain a December 28, 2018 treatment note by Sean Childs, M.D. documenting Plaintiff's renewed interest in pursuing surgery on his left ankle which he had previous delayed (see Dkt. 5 at 101-04), the treatment note does not include any additional information that was not already considered by the ALJ in connection with rendering a determination on Plaintiff's claim. Plaintiff argues that the December 28, 2018 encounter note contradicts the ALJ's statements in the written determination regarding his frequency of treatment. (Dkt. 10-1 at 21). To that end, the ALJ found the following with respect to Plaintiff's frequency of treatment:
I note that the frequency of treatment received by the claimant is not entirely consistent with his complaints of debilitating pain. Notably, while he has described severe, constant pain since the surgical repair of a fracture of the left ankle in 2010, which has purportedly prevented him from working since December 2015, he did not establish care for this alleged impairment until August 2016. Furthermore, he returned for only a few follow-up appointments, and does not appear to have sought or received any ongoing care for his alleged ankle impairment since ... September 2017.
(Dkt. 5 at 25). Contrary to Plaintiff's implication, the ALJ's finding relating to Plaintiff's inconsistent treatment history dates back to 2010, and one treatment note from December 2018 does not contradict the ALJ's determination relating to the frequency at which Plaintiff has sought treatment. Accordingly, remand is not required based on the ALJ's failure to consider the URMC treatment notes.
In sum, the ALJ's determination that Plaintiff can perform sedentary work is well-supported by the record—including by medical opinion evidence—and Plaintiff has failed to point to any evidence indicating that he is not capable of performing sedentary work, or that he requires limitations beyond those assessed in the RFC.
CONCLUSION
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings (Dkt. 12) is granted, and Plaintiff's motion for judgment on the pleadings (Dkt. 10) is denied.
SO ORDERED.