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finding that “the [VE] testimony which formed the basis of” the ALJ's holding “regarding plaintiff's ability to engage in substantial gainful employment” did not constitute substantial evidence when the VE offered testimony about the prevalence of “document preparer” positions in the national economy wildly different than other similarly situated social security cases
Summary of this case from Lovings v. O'MalleyOpinion
CV 19-5075 (GRB)
2021-01-25
Nicole ZACHAROPOULOS, Plaintiff, v. Andrew M. SAUL, Commissioner of Social Security, Defendant.
Howard D. Olinsky, Olinsky Law Group, Syracuse, NY, for Plaintiff. Matthew J. Modafferi, US Attorney's Office/Edny, Brooklyn, NY, for Defendant.
Howard D. Olinsky, Olinsky Law Group, Syracuse, NY, for Plaintiff.
Matthew J. Modafferi, US Attorney's Office/Edny, Brooklyn, NY, for Defendant.
MEMORANDUM & ORDER
GARY R. BROWN, United States District Judge:
Is it conceivable that 25,000 Americans, armed with rubber stamps, paper cutters and razor knives, are gainfully employed in full-time positions preparing documents for microfilming? Or is it possible, as suggested by purported expert testimony in another recent case before this Court, that this avocation in fact supports 2.8 million American workers? Or, perhaps, in this digital age, is the real number closer to zero, and the sworn testimony provided by vocational experts in both cases, and accepted as fact by Administrative Law Judges, is patently unreliable? This is but one of the vexing, though ultimately non-dispositive, questions presented in this appeal of a denial of Social Security disability benefits.
Plaintiff Nicole Zacharopoulos ("plaintiff") commenced this civil action pursuant to the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration (the "Commissioner" or "defendant"), denying her claim for disability insurance benefits under the Social Security Act. The parties each moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Upon consideration of the administrative record and for the reasons set forth herein, the Court ultimately denies plaintiff's motion for judgment on the pleadings and grants the Commissioner's motion, though finds itself - once again - extraordinarily troubled by the inconsistent and illogical vocational expert opinions being relied upon by the Commissioner.
BACKGROUND
I. Procedural History
A. Administrative History
Plaintiff filed a Title II application for Social Security Disability Benefits on February 28, 2016, alleging disability as of October 1, 2015 due to diabetes, arthritis, focal cortical thickening within the right frontal lobe, diabetic neuropathy, neuralgia, herniated discs in the neck, and pinched nerves in the lower back. Tr. at 73-74, 162-63, 176. Plaintiff's application for benefits was denied on May 5, 2016, and she requested a hearing before an Administrative Law Judge. Id. at 88-93, 98-99. ALJ Gregory M. Hamel (the "ALJ") conducted a hearing on May 11, 2018, during which plaintiff appeared with counsel and testified. Id. at 39-72. In addition, William T. Cody, a vocational expert, testified. Id. at 62-69.
References to "Tr." are to the Transcript of the Administrative Record filed in this case.
On July 18, 2018, the ALJ issued a decision (the "ALJ decision") finding that plaintiff was not disabled within the meaning of the Social Security Act and therefore was not entitled to disability insurance benefits. Id. at 15-34. On July 3, 2019, the Appeals Council denied plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of 42 U.S.C. § 405(g). Id. at 1-6. This appeal followed.
B. The Instant Case
Plaintiff commenced this lawsuit on September 6, 2019. Docket Entry ("DE") 1. On May 15, 2020, plaintiff moved for judgment on the pleadings. DE 13. On the same day, the Commissioner cross-moved for judgment on the pleadings. DE 15.
II. Factual Background
The evidence subject to review is contained in the underlying administrative record, familiarity with which is assumed. The Court's discussion of the evidence will be limited to the specific challenges raised by plaintiff in her Statement of Contentions. DE 14-1. A. Non-Medical Evidence
Pursuant to the undersigned's individual rules, and consistent with the dictates of Fed. R. Civ. P. 1, which requires the construction of all applicable rules "to secure the just, speedy, and inexpensive determination of every action and proceeding," the Court requires that:
1. In all cases in which the plaintiff is represented by counsel, the plaintiff shall provide a "Statement of Contentions." This statement, conceptually similar to that required for summary judgment motions by Local Rule 56.1, shall set forth a separate, short, and concise statement, in numbered paragraphs, the contentions of the plaintiff as to the alleged legal errors in the Secretary's determination and/or the specific findings of the decision of the Administrative Law Judge ("ALJ") that, plaintiff contends, is not supported by substantial evidence.
2. The responsive papers filed by the defendant shall include an "Opposing Statement of Contentions," containing correspondingly numbered paragraphs responding to each numbered paragraph in the statement of the moving party.
3. Each contention by the movant and opponent made pursuant to this rule must be followed by pinpoint citations to the administrative record, identifying evidence supporting and/or rebutting each said contention. See Rule VII.
Plaintiff was born on July 16, 1978 and was 37 years old on the alleged disability onset date. Tr. at 32, 73. Plaintiff completed high school, attended vocational schools, and earned certifications in bookkeeping, medical billing, and as a medical assistant. Id. at 43-44, 177. Plaintiff's work history included work in medical billing and direct care counseling as well as positions as a claims’ examiner and teacher's assistant. Id. at 178, 214. Plaintiff had a significant earnings record and was insured for benefits through December 31, 2019. Id. at 18.
In a function report dated March 14, 2016, plaintiff reported that she (i) lived with her mother and son; (ii) cared for her five-year old son, viz. helped him wash, dress, do his chores, complete his homework as well as cooked for him; (iii) had no problems attending to her personal care, except some leg numbness while using the restroom; (iv) was able to take her medications without reminders; (v) could pay bills, and (vi) could do basic household chores and occasionally did laundry. Id. at 190-197. As to traveling, plaintiff stated she could walk, ride in a car, drive a car for short durations, take her son to the park, and shop for food. Id. at 193-95. Plaintiff stated that her alleged disability had affected her ability to focus, handle money, socialize, and use the phone or computer to communicate. Id. at 194-97. As to physical limitations, plaintiff reported that she could see, hear, talk, walk, climb stairs, and reach, but that she could only lift up to 10 pounds, stand for 30-45 minutes, sit for 30 minutes, and had difficulty kneeling, squatting, reaching and using her hands. Id. at 195-96. With regard to mental limitations, plaintiff stated she had difficulty paying attention, following instructions, and completing projects. Id. at 196-97.
Represented by counsel, plaintiff testified at the administrative hearing on May 11, 2018. Id. at 43-62. She stated that she spent her time exercising, driving to doctor appointments, taking her son to and from school, helping him with homework, preparing quick meals, doing dishes with some assistance, and listening to music. Id. at 45-47. She reported that she could mow the lawn, but was unable to complete the task due to the vibration. Id. at 48. Plaintiff testified that she had some difficulty with certain personal hygiene tasks and took medication for diabetes and muscle spasms which provided some relief. Id. at 49. She stated that she could not return to work because she was "unreliable" due to pain and memory issues and was unable to work on a computer due to pain in her wrist and arm. Id. at 49-50, 60. Plaintiff reported that she could sit for 20 minutes at a time and stand for seven minutes at a time, alternating positions during the day. Id. at 45-46, 55-56.
B. Relevant Medical Evidence
(1) Treatment Records
Plaintiff's medical records include radiology reports (x-rays, MRIs, EKG), an electromyography (EMG)/nerve conduction study (NCS), and laboratory reports. Id. at 244, 246, 249, 250, 252, 261, 263, 281, 285, 431-32, 434, 440, 641-48, 728, 798, 807. Medical evidence also references treatment records and laboratory reports from Memorial Hospital for Cancer and Allied Diseases. Id. at 649-66. Finally, the record includes treatment records from orthopedic surgeon Salvatore Inserra, M.D., id. at 236-52, 299-300, 703-04, 711, 720, and George V. Kakoulides, M.D. of Dr. Inserra's office, id. at 442-43; neurologist Henry Moreta, M.D., id. at 272-80, 337-346, 360-64; 376-81, 403-13; pain management specialists Elvis Rema, M.D., id. at 444-72, 732-55, and Michael Hershey, M.D., id. at 474-77, 480-81, 788-95; and rheumatologists Anang Modi, D.O., id. at 796-812, and Louise Raminfard, M.D., id. at 634-48.
(2) Treating Physician Functional Assessment Opinion
(a) Dr. Inserra's July 29, 2016 Opinion
On July 29, 2016, Dr. Inserra completed a medical functional assessment in which he opined that plaintiff was limited to (i) standing and walking one hour without interruption for three hours total in an eight-hour workday; (ii) sitting for two hours without interruption for eight hours total in an eight-hour workday; and (iii) lifting and carrying five pounds frequently and 10 to 20 pounds occasionally. Id. at 335. In addition, Dr. Inserra assessed that plaintiff (i) occasionally could bend, but never could climb, balance, stoop, kneel, crouch, or crawl; and (ii) frequently could reach (including overhead), push or pull, and constantly feel and handle. Id. at 336. Dr. Inserra opined that plaintiff had the following environmental limitations due to her impairments: heights, moving machinery, humidity, temperature extremes and vibration. Id. Dr. Inserra stated plaintiff's limitations had been present since November 19, 2015. Id.
(3) Consultative Medical Opinions
(a) Dr. Saadia Wasty
On April 12, 2016, Dr. Saadia Wasty conducted a consultative examination. Id. at 265-70. Plaintiff reported that her daily living activities included showering, dressing, caring for her son, cooking three times a week, cleaning and doing laundry once a week, watching television, listening to the radio, reading and going for short walks. Id. at 267. Dr. Wasty observed that plaintiff was in no acute distress during the examination and that her gait and stance were normal. Id. at 268. She was able to walk heel-to-toe with difficulty. Id. Plaintiff did not use an assistance device, was able to rise from a chair without difficulty, and squat halfway. Id. Plaintiff's cervical spine and lumbar spine exhibited limited ranges of motion, and her straight leg raising tests were positive in a seated position, but negative in a supine position. Id. Plaintiff demonstrated full muscle strength and full ranges of motion as well normal reflexes throughout her arms and legs, but she exhibited decreased sensations in her right arm and leg, feet and fingertips. Id. at 268-69. Her hand and finger dexterity were intact, and her hands demonstrated full grip strength. Id. at 269.
Dr. Wasty diagnosed cervical radiculopathy, lumbago, diabetic neuropathy, vitamin D deficiency, and arthritis. Id. Dr. Wasty's prognosis was noted as stable. Id. Based on her examination, Dr. Wasty opined that plaintiff had mild to moderate limitations in lifting, carrying, pushing, pulling, and/or reaching overhead. Id. She assessed moderate limitations in bending forward, heavy lifting, twisting and turning her neck, and long periods of walking, sitting and standing. Id. Dr. Wasty opined that plaintiff had moderate to marked limitations in squatting and kneeling. Id. (b) Dr. Paul Herman
On April 30, 2016, Dr. Paul Herman conducted a consultative psychiatric evaluation. Id. at 321-24. Plaintiff reported difficulty dealing with daily stressors, rendering her angry, argumentative, frustrated, and upset. Id. at 321. With respect to daily living activities, plaintiff reported that she had no significant difficulties related to psychiatric issues and stated she had friends, got along well with her family, watched television, listened to the radio, read and went for walks. Id. at 323. On examination, plaintiff had adequate social skills, and her receptive and expressive language skills were normal. Id. at 322. Plaintiff's thought processes were coherent and goal directed with no hallucinations, delusions, or paranoia. Id. Her mood was normal and her affect was appropriate. Id. Plaintiff's attention and concentration skills were below average, and she exhibited mixed recent memory skills and below average remote memory skills. Id. Her cognitive functioning was within the low-average range, her insight and judgment were fair to poor, and her general fund of information was appropriate to her experience. Id. at 323.
Dr. Herman assessed mild limitations in plaintiff's abilities to: follow, understand, and carry out simple directions and instructions; maintain attention and concentration; learn new simple tasks; make appropriate simple work-related decisions; maintain a regular schedule; relate adequately with others; and appropriately deal with stress. Id. Dr. Herman diagnosed general personality disorder and opined that plaintiff's psychiatric issues were not significant enough to interfere with her ability to function on a daily basis to the extent that vocational functioning would be precluded. Id.
(c) Dr. O. Fassler
On May 4, 2016, Dr. Fassler completed a medical report based on a review of plaintiff's medical file. Id. at 78-80. Dr. Fassler assessed mild limitations in performing the activities of daily living; maintaining social functioning; and maintaining concentration, persistence or pace. Id. at 80. Dr. Fassler opined that plaintiff's mental impairment was not severe. Id. at 79.
(4) Vocational Evidence
William T. Cody, a vocational expert, testified at the administrative hearing. Id. at 62-68. Cody classified plaintiff's past work as a billing clerk as a sedentary exertion position and classified plaintiff's past work as a teaching assistant as a light exertion position. Id. at 63. The ALJ posed numerous hypotheticals giving Cody a range of limitations. Id. at 64-68. When asked by the ALJ if there were jobs in the national economy that could be performed by a hypothetical individual of plaintiff's age, education and work experience with a residual functional capacity of light work with a few additional limitations, Cody stated that such an individual could perform plaintiff's past relevant work as a teaching assistant. Id. at 65. When asked by the ALJ if there were jobs in the national economy that could be performed by a hypothetical individual of plaintiff's age, education and work experience with a residual functional capacity of sedentary work with a few additional limitations, Cody testified that such an individual could perform the unskilled sedentary positions of document preparer (with 25,000 jobs nationally); assembler (with 60,000 jobs nationally); and repairer (with 20,000 jobs nationally) as these jobs are performed in the national economy. Id. at 66.
When the ALJ amended the hypothetical to limit such a worker to be off-task approximately 25 percent of the workday or absent two or more days a month, Cody opined there would be no jobs available with those limits. Id. at 67. Plaintiff's attorney then questioned Cody whether there were jobs in the national economy that could be performed by such an individual who was limited to sedentary work with occasional handling and fingering, Cody opined that such limits would preclude sustained work activity. Id. at 68.
III. The ALJ's Decision
The ALJ issued his decision on July 18, 2018, applying the five-step process described below, pursuant to 20 C.F.R. § 404.1520. Id. at 12-38. At step one, the ALJ determined that plaintiff had not engaged in substantial gainful activity since the initial alleged onset date of October 1, 2015. Id. at 18. At step two, the ALJ found that plaintiff had the following severe impairments: cervical, thoracic, and lumbar disc disease; fibromyalgia ; carpal tunnel syndrome ; and obesity. Id. at 18-19. In addition, the ALJ found that plaintiff's medically determinable mental impairment of personality disorder was non-severe. Id. 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 one of the listed impairments in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 20-22. The ALJ then assessed plaintiff's residual functional capacity ("RFC") and determined that she had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), except she could not climb ladders or similar devices. In addition, the ALJ found that plaintiff could (i) occasionally climb ramps and stairs, balance, stoop, kneel, crouch, crawl; and (ii) frequently handle and finger bilaterally. Id. at 23-29.
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. § 404.1567(b).
At step four, with input from the vocational expert, the ALJ concluded that plaintiff was able to perform her past relevant work as a teaching assistant. Id. at 29-33. The ALJ proceeded to the final step of the five-step process, and with input from the vocational expert as well as the Medical-Vocational Guidelines, made the alternative determination that considering plaintiff's age, education, work experience, and RFC, plaintiff was capable of performing sedentary work that existed in significant numbers in the national economy. Id. at 32-33. Such jobs included the unskilled sedentary positions of document preparer (with 25,000 jobs nationally); assembler (with 60,000 jobs nationally); and repairer (with 20,000 jobs nationally). Id. Accordingly, the ALJ found that plaintiff was not under a disability as defined under the Social Security Act ("SSA") from October 1, 2015 through the date of his decision. Id. at 34.
Sedentary work involves lifting, carrying, pushing, or pulling ten pounds occasionally and less than ten pounds frequently. 20 C.F.R. § 404.1567(a). Although a sedentary job is defined as one that involves sitting, a certain amount of walking and standing is often necessary to carry out job duties. SSR 96-9p. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. Id.
DISCUSSION
Legal Standards
A. Social Security Disability Standard
To qualify for disability benefits under Title II, an individual must be (i) insured for disability benefits; (ii) not have attained retirement age; (iii) be a U.S. citizen or a foreign national under certain circumstances not relevant here; and (iv) have a "disability." 42 U.S.C. § 423(a)(1). The SSA defines "disability" to mean that a claimant is unable "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 not less than twelve months." 42 U.S.C. § 423(d)(1)(A) ; see Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013). The SSA further states that the impairment must be "of such severity that [the claimant] is not only unable to do his [or her] previous work but cannot, considering his [or her] 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) ; see also Shaw v. Chater, 221 F.3d 126, 131-32 (2d Cir. 2000).
The Social Security Administration has promulgated regulations prescribing a five-step sequential analysis to determine if a claimant is eligible for benefits based on a disability. See 20 C.F.R. §§ 404.1520 ; 416.920. The Second Circuit has summarized this evaluation process as follows:
First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. If he [or she] is not, the Commissioner next considers whether the claimant has a ‘severe impairment’ which significantly limits his [or her] physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Commissioner will consider him [or her] disabled without considering vocational factors such as age, education and work experience .... Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he [or she] has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his [or her] past work, the Commissioner then determines whether there is other work which the claimant can perform.
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (citation omitted). The claimant bears the burden of proof at steps one through four of the sequential inquiry, while the burden shifts to the Commissioner at step five to show that the claimant is capable of working. Id.
B. Standard of Review
A motion for judgment on the pleadings should be granted if it is clear from the pleadings that "the moving party is entitled to judgment as a matter of law." Burns Int'l Sec. Servs., Inc. v. Int'l Union, 47 F.3d 14, 16 (2d Cir. 1995). The Court may "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing a decision of the Commissioner of Social Security, with or without remanding the case for a rehearing." 42 U.S.C. § 405(g).
The Court's review of a Commissioner's denial of disability insurance benefits is limited to two inquiries: (1) whether the Commissioner applied the correct legal standards in reaching a decision, and (2) whether the Commissioner's factual findings were "supported by substantial evidence in the record as a whole." Greek v. Colvin, 802 F.3d 370, 374-75 (2d Cir. 2015) ; see Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013). The Court does not substitute its own judgment for that of the Commissioner's "or determine de novo whether [the claimant] is disabled." Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) ; see Greek, 802 F.3d at 374-75 ("The ultimate determination of whether a person has a disability within the meaning of the Act belongs to the Commissioner.").
Inquiry into legal error requires the court to determine whether "the claimant has had a full hearing under the [Commissioner's] regulations and in accordance with the beneficent purposes of the [Social Security] Act." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation marks and citation omitted). "Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations." Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (citations omitted).
"To determine whether the findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn." Snell v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999) (internal quotation marks and citation omitted). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Selian, 708 F.3d at 417 (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ) (internal quotation marks omitted). That is to say, the findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive, 42 U.S.C. § 405(g), and therefore, the relevant question is not whether substantial evidence supports plaintiff's position, but whether "substantial evidence supports the ALJ's decision. " Bonet ex rel. T.B. v. Colvin, 523 F. App'x 58, 59 (2d Cir. 2013) (emphasis in original); see also Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (holding that if the court finds that there is substantial evidence to support the Commissioner's determination, the decision must be upheld, "even if [the court] might justifiably have reached a different result upon a de novo review"). This is a "highly deferential standard of review." Negron v. Berryhill, 733 F. App'x 1, 2 (2d Cir. 2018).
Analysis
I. The ALJ's Adoption of Demonstrably Unreliable Vocational Expert Testimony
The analysis here begins, in a sense, at the end. The ALJ determined as an "alternative holding" that the plaintiff retained sufficient residual functional capacity to perform work other than her previous employment. The ALJ specifically and exclusively based his finding that the plaintiff "is capable of making a successful adjustment to other work that exists in significant numbers in the national economy" having "adopt[ed] the vocational expert's testimony." Tr. At 33. For the reasons discussed herein, the Court finds that the vocational expert's opinion is facially unreliable. Just last year, this Court examined vocational expert testimony in another disability case on almost precisely the same subject. Feuer v. Saul , No. CV 16-5732 (ADS) (GRB), 2019 WL 9042872, at *1 (E.D.N.Y. Aug. 30, 2019), adopted by , 2020 WL 1316528 (E.D.N.Y. Mar. 20, 2020). Remarkably, in these two cases, vocational experts under contract with the Secretary opined on the same subject, offering radically and dramatically different conclusions, and yet both appear to be wrong. Indeed, the divergent, irrational and seemingly random nature of the quantitative information provided by these two experts – estimates which should be subject to ready verification – call to mind the divinations of the Magic 8 Ball.
Invented by the son of a self-proclaimed clairvoyant, the Magic 8 Ball is a fortune-telling toy inspired by an actual soothsaying device. It consists of a liquid-filled plastic ball with a clear plastic lens affording a view of a polyhedral floating die embossed with an assortment of positive, negative and neutral answers. One asks a question of this dime-store oracle, turning it over to reveal the oracle's response. According to Time magazine, this clever gadget ranks among the "All-Time 100 Best Toys." See Andrew N. Wong, "A Brief History of the Magic 8 Ball," Mental Floss (August 24, 2015): https://www.mentalfloss.com/article/67702/brief-history-magic-8-ball.
The Magic 8 Ball gives the illusion of interaction with the user, and its seemingly enigmatic action encourages users to attribute insight to prognostications generated by chance. But the illusion crumbles when one receives answers that are fundamentally nonsensical. Furthermore, by repeatedly asking the same question, a skeptical user can quickly discern another fundamental flaw: inconsistent and contradictory responses expose the random element of the game. Unfortunately, analysis of the subject vocational expert testimony in this and other cases yields a similar result.
In its brief, the Government argued – without identifying the specific jobs at issue – that the ALJ's alternative finding was supported exclusively by vocational expert testimony that the plaintiff could "perform several occupations that the ALJ determined exist in significant numbers in the national economy." DE 16 at 22. One of those three positions, according to the ALJ, is that of "Document Preparer," DOT number 249.587-108. According to the ALJ's decision, "the vocational expert testified that there were approximately 25,000 such positions nationally." Tr. at 33. According to the Dictionary of Occupational Titles, that position encompasses the following:
Prepares documents, such as brochures, pamphlets, and catalogs, for microfilming, using paper cutter, photocopying machine, rubber stamps, and other work devices: Cuts documents into individual pages of standard microfilming size and format when allowed by margin space, using paper cutter or razor knife. Reproduces document pages as necessary to improve clarity or to reduce one or more pages into single page of standard microfilming size, using photocopying machine. Stamps standard symbols on pages or inserts instruction cards between pages of material to notify MICROFILM-CAMERA OPERATOR (business ser.) 976.682-022 of special handling, such as manual repositioning, during microfilming. Prepares cover sheet and document folder for material and index card for company files indicating information, such as firm name and address, product category, and index code, to identify material. Inserts material to be filmed in document folder and files folder for processing according to index code and filming priority schedule.
Document Prepare, Microfilming (businesses.), Dictionary of Occupational Titles (May 26, 2013); https://occupationalinfo.org/24/249587018.html. That the technology underlying such a career is rapidly descending into obsolescence can be readily demonstrated: at this writing, a growing number of Americans are unacquainted with "microfilming," "rubber stamps" and perhaps even "photocopying." And while microfilm may still service some obscure, niche markets, in the digital economy, its trajectory resembles that of carbon paper and punch cards.
In Feuer , 2019 WL 9042872, at *1, the ALJ rejected the opinions of a treating physician based upon, inter alia , "the vocational expert's testimony that nearly 2.8 million individuals nationally are engaged in the unskilled sedentary position of document preparer for microfilming." Id. (emphasis added). The testimony was fundamentally irrational, because, if true, this opinion means that more than 1% of the working age adults in the United States (214 million ) are wielding rubber stamps, paper cutters and razor knives to format documents for microfilming. And this opinion, according to the ALJ in Feuer , was rendered by a vocational expert who had "testified many times" at Social Security Administration hearings. See 16-CV-5732, DE 34, Administrative Transcript at 94 (Examination of Vocational Expert by ALJ). This Court rejected that determination, noting that the acceptance of the vocational expert's testimony was "highly troubling." Feuer , 2019 WL 9042872, at *1. While the purported expert testimony here is less spectacular, it still strains credibility to suggest that there are a "substantial" number of positions available in a moribund industry.
Luke Rogers and Kristie Wilder, Shift in Working-Age Population Relative to Older & Younger Americans, U.S. Census Bureau (June 25, 2020), https://www.census.gov/library/stories/2020/06/working-age-population-not-keeping-pace-with-growth-in-older-americans.html.
In any event, in two cases before this Court in the last eighteen months, ALJs elicited and accepted evidence that the number of microfilm document preparers employed in the U.S. economy plunged from 2.8 million to 25,000, a 112-fold decrease in a three-year period. For the reasons discussed herein, one would expect a precipitous drop in the number of such positions in light of technological developments, but if such a dramatic change took place, it certainly did not begin in the last few years.
Moreover, reported cases considering expert opinions as to the number of microfilm document preparers in the national economy – opinions which are almost universally adopted by the assigned ALJs – demonstrate that this figure is subject to wildly irrational variation. See, e.g., Ciambra v. Colvin, No. 15-CV-3473 (SJF), 2017 WL 1323758, at *3 (E.D.N.Y. Mar. 27, 2017) (2,808,100 jobs); Romero v. Saul, No. CV 19-0092 JHR, 2020 WL 1677074, at *4 (D. N.M. Apr. 6, 2020) (47,000 jobs); Patton v. Berryhill , No. CIV. 10-5016-JLV, 2018 WL 1137057, at *4 (D. S.D. Feb. 28, 2018) (100,000 jobs); Wood v. Berryhill, No. 3:17-cv-5430-RJB-BAT, 2017 WL 6419313, at *1 (W.D. Wash. Nov. 17, 2017) (61,646 positions); Sena v. Berryhill , No. 3:17-cv-912 (MPS), 2018 WL 3854771, at *15–16 (D. Conn. Aug. 14, 2018) (45,000 positions); Brininger v. Berryhill , No. 3:16-CV-0903, 2017 WL 3634187, at *8 (M.D. Pa. Aug. 7, 2017) (125,000 jobs); Czosnowski v. Comm'r, Soc. Sec. , No. CV RDB-13-1467, 2014 WL 1660083, at *3-4 (D. Md. Apr. 23, 2014) (2.7 million positions); Johnson v. Chater , 108 F.3d 178, 179 (8th Cir. 1997) (10,000 positions). Thus, in this tiny sampling of the legions of cases relying on "document preparer" opportunities in evaluating the entitlement of individuals, already determined to be disabled from their prior employment, to disability benefits, the expert assessment of the number of these jobs consists of a five, six or seven-digit figure. This inexplicable variation in supposed learned opinions, offered under oath by contract vocational experts, renders such testimony entirely unreliable. Indeed, comparison to the Magic 8 Ball seems apt because, viewed through this lens, the agency's use of vocational expert testimony smacks of unreliable speculation.
The extraordinary number of reported cases concerning this particular vocation begs the question: In a world filled with smartphones, digital scanners and computers, why does a vocation in microfilm document preparation remain the go-to profession for a vocational expert asked about jobs that exist in substantial number?
The only figures available to the Court are cases which have been appealed to the federal courts (a small percentage of the total cases), and which yield a judicial opinion which happens to mention the precise number proffered by the expert. Of course, the Commissioner has access to all of the figures proffered by these experts in all of the administrative proceedings, which data would, most likely, unearth even greater disparities in the evidence elicited.
In this case, the vocational expert further testified to opportunities available to plaintiff working as a "repairer," revealing that this position involved repairing "burlap sacks," an avocation with which this Court was, admittedly, unfamiliar. Further research reveals that the job has been more specifically described as "a sack repairer in the feed industry." Price v. Comm'r of Soc. Sec. , No. 1:16-CV-43-DAS, 2016 WL 7443793, at *2 (N.D. Miss. Dec. 22, 2016). This revelation, in turn, suggests that, irrespective of the expert's familiarity with the national labor market, his knowledge of the Long Island economy seems lacking: the opportunities for feed sack repairers – like those for cattle rustlers – must be quite limited in the New York metropolitan region. And though "burlap sack repairer" is a classification used far more sparingly by vocational experts, the estimates range from a high of 21,000 to as few as 1,000 such jobs in the national economy. Compare Price, 2016 WL 7443793, at *2 (21,000) and Patton , 2018 WL 1137057, at *4 ("12,000 jobs exist in the national economy") with Nix v. Colvin , No. 6:14-cv-00071-JMC, 2015 WL 799528, at *8 (D. S.C. Feb. 25, 2015) (1,000 sack repairer jobs nationally).
Ironically, the regional availability of such positions – which should be (and was not) made part of the record - ultimately has no effect on the analysis here. Herrmann v. Colvin, 772 F.3d 1110, 1114 (7th Cir. 2014) ("While we're trying to solve or at least identify puzzles, we'll take a crack at one more—why it is that the vocational expert is required to estimate the number of jobs in the applicant's locality and region, as well as in the nation as a whole, that the applicant for benefits can perform. For if there is a substantial number of such jobs in the nation, the applicant's claim fails, no matter how few there are in his locality or region."); Browning v. Colvin , 766 F.3d 702, 708 (7th Cir. 2014) ("The reason the vocational expert is required to estimate the number of jobs the claimant can do that exist in the local, regional, and national economy is that, as the regulation indicates, if there is a large number of such jobs in any of the three areas, the claimant loses.").
This Court is not the first to express dissatisfaction about the Commissioner's reliance on vocational expert testimony predicated on plainly obsolete positions, including the microfilm document preparer position. See, e.g., Cunningham v. Astrue , 360 F. App'x 606, 615 (6th Cir. 2010) (finding that the positions of document preparer and security camera monitor "appear obsolete" and directing remand); Skinner v. Berryhill, No. CV 17-3795-PLA, 2018 WL 1631275, at *6 (C.D. Cal. Apr. 2, 2018) ("[T]he occupation of "addresser" is an occupation that has significantly dwindled in number since 1991 in light of technological advances."); cf. Herrmann , 772 F.3d at 1113 (recognizing that the DOT constitutes "an obsolete catalog of jobs."). This problem prompted the Seventh Circuit to observe:
If the only jobs that the applicant is physically and mentally capable of doing no longer exist in the American economy (such as pin setter, phrenologist, leech collector, milkman, pony express rider, and daguerreotypist), the applicant is disabled from working, and likewise, as a realistic matter, if there is an insignificant number of such jobs.
Herrmann, 772 F.3d at 1113. Other courts have specifically determined that there are insufficient number of document preparer positions to warrant a finding of available substantial gainful employment. See, e.g., Wood , 2017 WL 6419313, at *2 ("[T]he positions of document preparer and nut sorter do not exist in significant numbers in the national economy.")
One dispute over the seeming unreliability of such estimates by vocational experts made its way, just last year, to the United States Supreme Court, which rejected a proposed rule that "refusal to provide th[e] data upon [which a vocational expert bases her conclusions would] categorically preclude[ ] her testimony from counting as ‘substantial evidence.’ " Biestek v. Berryhill , ––– U.S. ––––, 139 S. Ct. 1148, 1152, 203 L.Ed.2d 504 (2019). But the Court was careful to limit its holding to the application of such a categorical rule, noting that the "inquiry, as is usually true in determining the substantiality of evidence, is case-by-case." Id. at 1157.
Three dissenting justices, led by Justice Gorsuch, provided guidance into the nature and scope of that inquiry, and the peculiar problems caused by uncritical reliance on baseless vocational expert conclusions in these circumstances. Justice Gorsuch, with whom Justice Ginsberg joined, decried the present state of these practices:
The Social Security Act of 1935 requires the agency to support its conclusions about the number of available jobs with "substantial evidence." 42 U.S.C. § 405(g).... Witness testimony that's clearly wrong as a matter of fact cannot be substantial evidence. Falsified evidence isn't substantial evidence. Speculation isn't substantial evidence. And, maybe most pointedly for our purposes, courts have held that a party or expert who supplies only conclusory assertions fails this standard too.
*****
Veteran Social Security practitioners must be feeling a sense of déjà vu. Half a century ago, Judge Henry Friendly encountered Kerner v. Flemming , 283 F.2d 916 (CA2 1960). There, the agency's hearing examiner offered "nothing save [his own] speculation" to support his holding that the claimant "could in fact obtain substantial gainful employment." The Second Circuit firmly explained that this kind of conclusory claim is insufficient to meet the substantial evidence standard. In response, the Social Security Administration began hiring vocational experts, like the one in this case, to document the number of jobs available to a given claimant. But if the government can do what it did in this case, it's hard to see what all the trouble was for. The agency might still rest decisions on a hunch—just so long as the hunch comes from an agency contractor rather than an agency examiner.
Id. at 1159-60 (Gorsuch, J. , dissenting) (citations omitted). And Justice Sotomayor reminded us that "a Social Security proceeding is ‘inquisitorial rather than adversarial,’ " at which the "[t]he ALJ acts as ‘an examiner charged with developing the facts,’ " with a "duty to ‘develop the arguments both for and against granting benefits.’ " Id. at 1158 (Sotomayor, J. , dissenting) (quoting Sims v. Apfel , 530 U.S. 103, 110–111, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000) and Richardson v. Perales , 402 U.S. 389, 410, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ; and citing 20 CFR §§ 404.900(b), 416.1400(b) ). The unblinking acceptance of conclusory opinions by vocational expert testimony by the ALJ in this case (as well as in Feuer ) fails to meet this standard.
While these factors provide reasons to question the content of the vocational testimony offered here, reported cases provide additional cause to question the expertise of the particular expert relied upon here. In Moore v. Shinseki , No. 08-2941, 2010 WL 3452487, at *2 (Vet. App. Aug. 31, 2010), a court examined a decision by the Board of Veteran's Appeals which rejected a disability determination by Mr. Cody, deeming the opinion "rank speculation" which "lacks cogent explanations for its ultimate conclusions." Id. at *2 (affirming the Board's determination regarding Mr. Cody). A federal district court similarly rejected a vocational expert opinion offered by Mr. Cody, stating "his opinion lacks a sufficient foundation." Hoffman v. Fid. Brokerage Servs., Inc. , 959 F. Supp. 452, 462 (S.D. Ohio 1997). And yet a third court permitted a claimant to take a deposition to explore one of Mr. Cody's opinions (a procedure unavailable in this setting) "during which Mr. Cody repudiated one or more of the opinions set forth in his report." State ex rel. Hall v. Midwest Drywall, Inc. , No. 02AP-500, 2003 WL 462449 (Ohio Ct. App. 2003). Thus, not only were the vocational expert's conclusory prognostications here facially questionable, their source, an expert whose opinions have been repeatedly called into question, cast further doubt on his assertions.
Therefore, the Court finds that the vocational expert testimony which formed the basis of the ALJ's alternative holding regarding plaintiff's ability to engage in substantial gainful employment does not constitute substantial evidence. To the extent the ALJ relied upon such evidence in determining that the plaintiff could return to her past relevant work, such a determination is also improper. However, that does not end the inquiry for two reasons. First, plaintiff's counsel failed to raise these issues below, therefore shielding the ALJ's determination in this regard. See, e.g., Donahue v. Barnhart, 279 F.3d 441, 447 (7th Cir. 2002) ("On the record as it stands—that is, with no questions asked that reveal any shortcomings in the vocational expert's data or reasoning—the ALJ was entitled to reach the conclusion she did."). Moreover, the Court finds that the ALJ's determination that the plaintiff could perform her past relevant work – even disregarding the testimony of Mr. Cody – is supported by substantial evidence and must be sustained.
II. Weight of the Record Evidence
(1) RFC Determination
In deciding a disability claim, an ALJ is tasked with "weigh[ing] all of the evidence available to make an RFC finding that [is] consistent with the record as a whole." Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013) ; see also Springfield v. Comm'r of Soc. Sec., No. 16-CV-6947 (JMA), 2019 WL 1508994, at *11 (E.D.N.Y. Mar. 31, 2019) ("In determining a claimant's RFC, ‘[t]he Commissioner must consider objective medical evidence, opinions of examining or treating physicians, subjective evidence submitted by the claimant, as well as the claimant's background, such as age, education, or work history.’ "). An RFC determination represents "the most [a claimant] can still do despite [the claimant's] limitations." Barry v. Colvin, 606 F. App'x 621, 622 n.1 (2d Cir. 2015) ; see also Crocco v. Berryhill, No. 15-CV-6308 (MKB), 2017 WL 1097082, at *15 (E.D.N.Y. Mar. 23, 2017) (stating that "an RFC determination indicates the ‘nature and extent’ of a claimant's physical limitations and capacity for work activity on a regular and continuing basis") (citing 20 C.F.R. § 404.1545(b) ). An RFC assessment must be upheld on appeal where, as here, it is supported by substantial evidence in the record. Barry, 606 F. App'x at 622 n.1.
(2) Treating Physician Rule
An ALJ's decision regarding the weight to be accorded to each medical opinion and how to reconcile conflicting medical opinions is governed by the treating physician rule. 20 C.F.R. § 404.1527(c) ; 20 C.F.R. § 416.927(c). Under the Social Security Administration's treating physician rule, "a treating source's opinion on the issue(s) of the nature and severity of [a claimant's] impairment(s)" is given "controlling weight" if the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." Petrie v. Astrue , 412 F. App'x 401, 405 (2d Cir. 2011) (quoting 20 C.F.R. § 404.1527 ) (internal quotation marks omitted). "While the opinions of a treating physician deserve special respect, they need not be given controlling weight where they are contradicted by other substantial evidence in the record." Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
The Social Security Administration adopted new regulations that change the standards applicable to the review of medical opinion evidence for claims filed on or after March 27, 2017. See 20 C.F.R. § 404.1520c. Because plaintiff filed her claim before the new rule's effective date, the Court applies the regulations that were in effect at the time of the filing.
III. The ALJ's Evaluation of the Medical Evidence
(1) The ALJ's Assessment of Plaintiff's Physical RFC
In his decision, the ALJ found that plaintiff had the following severe impairments: cervical, thoracic, and lumber disc disease; fibromyalgia ; carpal tunnel syndrome ; and obesity. Notwithstanding this finding, the ALJ found that plaintiff was not disabled because she had the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) with certain limitations.
Plaintiff argues that the ALJ erred in his assessment of plaintiff's physical RFC by rejecting medical opinions and crafting an RFC based on his own lay opinion. DE 14-1 at ¶ 1. Specifically, plaintiff maintains that while the ALJ accorded some weight to the consultative examiner Dr. Wasty and little weight to treating physician Dr. Inserra, the ALJ failed to properly consider all the evidence. Id. at ¶ 2. In support of her position, plaintiff submits the following contentions: (1) in May 2016, she was diagnosed with fibromyalgia after she tested positive for diffuse tender points; (2) in June 2016, after receiving an injection, she reported significant improvement in neck and radicular pain, but by October 2016 her pain returned; (3) in December 2016, she received an injection but reported no improvement; (4) in January 2017, she received a trigger point injection which did not provide relief; (5) in February 2017, examination findings included tenderness in the cervical spine with moderately reduced range of motion, and later that month, her range of motion was somewhat limited; (6) in March 2017, she received medial branch blocks which relieved her cervical pain, but revealed other pain; (7) in April 2017, she exhibited diffuse tender points consistent with fibromyalgia ; (8) in June 2017, she exhibited tenderness and moderately reduced range of motion in the cervical spine, tenderness in the shoulders, and joint tenderness in her hands, with similar findings in July 2017, August 2017 and October 2017; (9) in January 2018, she exhibited tenderness in all 18 fibromyalgia tender points and marked tenderness of the cervical facets; (10) on March 29, 2018, Dr. Hershey noted new pain in her shoulder and arm, and hand pain and swelling, which he related to fibromyalgia ; and (11) Dr. Wasty opined plaintiff had moderate limitations in twisting and turning her neck with long periods of sitting, standing, and walking. Id. at ¶¶ 3-13. The Court considers each of plaintiff's contentions in turn, but upon review of the record finds substantial evidence supports the ALJ's determination.
First, there is contemporaneous evidence in the record that in May 2016 plaintiff saw Dr. Rema and reported continued improvement in her neck pain following an epidural steroid injection notwithstanding her diagnosis of fibromyalgia the same month. Tr. at 736-37. At that time, Dr. Rema conducted a physical examination, noted plaintiff had full muscle strength, full ranges of motion, and normal reflex and sensations in her arms and legs, and noted plaintiff requested a second epidural steroid injection. Id. Notably, in July 2016 plaintiff told Dr. Inserra that she did not have neck, back, muscle or joint pain. Id. at 703. Plaintiff states she began to experience pain in October 2016; however there is subsequent evidence in the record that at her December 19, 2016 and January 30, 2017 appointments with Dr. Rema, plaintiff's joint stability and range of motion of major joints were normal and her motor strength in all extremities was 5/5. Id. at 464, 467. On February 27, 2017, Dr. Rema administered medial branch block injections which plaintiff reported resolved her neck pain. Id. at 752-55.
Next, while plaintiff maintains that examination findings in February 2017 included tenderness in the cervical spine with moderately reduced range of motion and later that month her range of motion was somewhat limited, there is additional evidence in the record of subsequent improvement. At her appointment with Dr. Rema in March 2017, plaintiff reported resolution of her axial neck pain, and Dr. Rema noted full range of motion over all major joints. Id. at 754-55. At her March 31, 2017 appointment with Dr. Rema, plaintiff reported that despite relief from cervical pain due to the medial branch blocks, she experienced shoulder pain. Id. at 471-72. However, Dr. Rema's examination indicated normal joint stability, a normal range of motion of major joints, and a 5/5 motor strength in all extremities. Id. In addition, plaintiff's physical examination with Dr. Moreta on April 11, 2017 showed normal gait, full strength in all muscle groups, intact sensation in all areas, deep tendon reflexes within normal limits and no notations of tenderness or reduced range of motion of the cervical spine. Id. at 373-74.
Further, to be sure, plaintiff's contentions that (i) in April 2017 she exhibited diffuse tender points consistent with fibromyalgia ; (ii) in June, July, August and October 2017 she exhibited tenderness and moderately reduced range of motion in the cervical spine, as well as tenderness in her shoulders and hands; and (iii) in January 2018, she exhibited tenderness in all 18 fibromyalgia tender points, with marked tenderness of the cervical facets are accurate. Id. at 385, 400, 475, 635-36, 639-40, 792-93, 801. However, there is substantial evidence in the record that contemporaneous examinations revealed full neck range of motion and no tenderness of plaintiff's neck, shoulders, back, hands, wrists, hips, knees, and ankles. Id. at 635-36, 639-40, 792-95. Plaintiff's appointments in January and February 2018 revealed largely normal physical examinations. For example, in January 2018, Dr. Raminfard's physical examination of plaintiff showed no tenderness in plaintiff's neck, shoulders, back, wrists, hips, knees, ankles and feet, and in February 2018, Dr. Raminfard assessed that plaintiff's shoulders, arms and hands were largely normal, with only some tenderness in her hands and feet. Id. at 635-36, 640. On January 23, 2018, Dr. Hershey's examination of plaintiff's neck revealed full range of motion, and in March 2018, Dr. Hershey's examination of plaintiff's cervical spine revealed no tenderness in the cervical facets. Id. at 792-95.
Plaintiff states that on March 29, 2018, Dr. Hershey noted new pain in her shoulder, arm, and hand and swelling which he related to fibromyalgia ; however, this statement is misleading, as Dr. Hershey's medical record refers to plaintiff's complaints of shoulder pain, hand pain and swelling as "vague" and "somewhat vague." Id. at 480-81. At her appointment, plaintiff reported relief of her axial neck pain, but said the medial branch blocks procedure unmasked new pain in her right shoulder and arm. Id. Dr. Hershey further noted that the prescribed medications, gabapentin and meloxicam, were helpful for controlling her pain. Id. Dr. Hershey's physical examination noted no tenderness to palpation and reported that a March 28, 2018 MRI was unremarkable. Id.
Finally, plaintiff's contention that the ALJ's physical RFC determination was erroneous due to the weight he accorded to the opinions of Dr. Wasty and Dr. Inserra is unavailing because a review of the record shows that the ALJ engaged in a detailed analysis of the medical opinion evidence together with objective medical and non-medical evidence in formulating plaintiff's RFC. In his decision, the ALJ afforded some weight to Dr. Wasty's assessment because it was inconsistent with subsequent evidence from plaintiff's treating sources and plaintiff's reports regarding the effectiveness of medial branch block injections, steroid injections and radiofrequency ablations. Id. at 27; see also id. at 269, 335, 636, 640, 734, 736, 754-55, 790, 794. See Barry, 606 F. App'x at 624 (holding an ALJ is not bound to include in the RFC determination every limitation assessed by a consultative examiner and could instead exercise discretion in reviewing the record evidence in its totality); see also Pellam v. Astrue, 508 F. App'x 87, 90 (2d Cir. 2013) (ALJ properly declined to credit certain assessments in the consultative physician's opinion that were inconsistent with other record evidence).
Likewise, the ALJ accorded little weight to Dr. Inserra's assessment because it was inconsistent with (i) the objective medical evidence in the record, including the March 28, 2018 MRI (and prior MRI) which were unremarkable; (ii) subsequent opinions of Dr. Rema and Dr. Hershey, colleagues of Dr. Inserra who took over plaintiff's care, and Dr. Raminfard; (iii) as well as plaintiff's reports regarding the effectiveness of injections and radiofrequency ablations. Id. at 27; see id. at 269, 335-36, 440, 480-81, 635-36, 640, 732-55, 789-90, 794. See Veino, 312 F.3d at 588 (finding that the ALJ has discretion to accept or reject various portions of a treating physician's opinion, based upon substantial evidence in the record). Although plaintiff argues that the ALJ had an obligation to supplement the record by obtaining an updated medical opinion, DE 14 at 16, where, as here, "there are no obvious gaps in the administrative record, and where the ALJ already possesses a complete medical history, the ALJ is under no obligation to seek additional information." Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (internal quotation marks omitted).
Here, the ALJ formulated an RFC for plaintiff that was consistent with the administrative record in this case, even though there was no specific medical opinion that fully mirrored the ALJ's RFC determination. See Matta, 508 F. App'x at 56 ("Although the ALJ's conclusion may not perfectly correspond with any of the opinions of medical sources cited in his decision, he was entitled to weigh all of the evidence available to make an RFC finding that was consistent with the record as a whole."). The ALJ's RFC for light work was supported at least in part by Dr. Inserra's July 12, 2016 assessment, which opined that plaintiff could lift/carry 20 pounds occasionally; could sit for eight hours in an eight-hour workday; and could frequently push or pull and constantly feel and handle. Id. at 335-36. Notwithstanding that the ALJ gave this opinion little weight, Dr. Inserra's opinion on these points can still, along with other evidence in the record, including the treatment notes of Dr. Rema, Dr. Hershey, and Dr. Raminfard, constitute the substantial evidence necessary to support the ALJ's decision. Cf. Pellam, 508 F. App'x at 90.
Moreover, Dr. Wasty's opinion that plaintiff had (i) mild to moderate limitations on lifting, carrying, pushing, and pulling; and (ii) moderate limitations for long periods of walking, sitting and standing, Tr. at 267-69, also supports the ALJ's RFC determination. See Barone v. Comm'r of Soc. Sec., No. 19-CV-0482, 2020 WL 3989350, at *5 (W.D.N.Y. July 15, 2020) ("[C]ourts have upheld an ALJ's decision that the claimant could perform light or sedentary work even when there is evidence that the claimant had moderate difficulties in prolonged sitting or standing"); Harrington v. Colvin, No. 14-CV-6044P, 2015 WL 790756, at *13-14 (W.D.N.Y. Feb. 25, 2015) (finding that a medical opinion that a claimant was moderately limited in sitting, standing, and walking was not inconsistent with the ALJ's determination that the plaintiff could sit, stand, and walk for six hours a day); Nelson v. Colvin , 12-CV-1810 (JS), 2014 WL 1342964, at *12 (E.D.N.Y. Mar. 31, 2014) ("[T]he ALJ's determination that [claimant] could perform ‘light work’ is supported by [the doctor's] assessment of ‘mild to moderate limitation for sitting, standing, walking, bending, and lifting weight’ "); Taylor v. Astrue, 32 F.Supp.3d 253, 270-71 (N.D.N.Y. 2012) (physician's assessment, including his opinion that plaintiff had moderate limitations for walking, provided support for the ALJ's RFC assessment that plaintiff could stand, walk, and sit for six hours in an eight-hour workday). Dr. Wasty noted that plaintiff demonstrated full muscle strength, full ranges of motion, normal reflexes throughout her arms and legs, and full grip strength with intact hand and finger dexterity. Tr. at 268-69.
Dr. Raminfard's treatment notes also support the RFC assessment as they indicated that plaintiff had normal gait, full muscle strength, full ranges of motion, and normal reflexes and sensations throughout her arms and legs. Id. at 635-36, 640. Dr. Raminfard noted that (i) plaintiff exhibited full ranges of motion of the lumbar and cervical spines; (ii) straight leg raising tests were negative; and (iii) her hands exhibited no tenderness, swelling, or synovitis. Id. at 636, 640. Plaintiff's pain management physicians, Dr. Rema and Dr. Hershey, consistently noted plaintiff demonstrated full muscle strength in all extremities (5/5), full ranges of motion, and normal reflexes and sensations throughout her arms and legs. Id. at 732-55, 789. See Secor v. Comm'r of Soc. Sec., No. 18-CV-6092 (SN), 2019 WL 4688661, at *4 (S.D.N.Y. Sept. 24, 2019) (finding treatment notes of treating sources and consultative examiner that claimant had full strength in her hands, upper and lower extremities supported a light exertional RFC); Reithel v. Comm'r of Soc. Sec., 330 F. Supp. 3d 904, 911-12 (W.D.N.Y. 2018) (finding that progress notes of "5/5" strength supported finding that claimant was capable of light exertional work).
Further, in assessing plaintiff's RFC, the ALJ considered plaintiff's symptoms and determined that her allegations regarding the intensity, persistence, and limiting effects of her pain and fatigue were not totally consistent with the record evidence. Plaintiff's (i) MRIs and x-rays of her lumbar spine were generally unremarkable, Tr. at 261, 299, 430-31, 440; (ii) an EMG/NCS of her arm was unremarkable, id. at 281; and (iii) x-rays of her hands and wrists were negative, id. at 807. Plaintiff's pain management doctors and treating physicians noted plaintiff demonstrated full muscle strength, ranges of motion and normal gait. See Blackwood v. Comm'r of Soc. Sec., No. 07-CV-388 (DRH), 2008 WL 2704352, at *10 (N.D.N.Y. July 2, 2008) (affirming the ALJ's credibility determination because the fact that the claimant "retained normal gait, motor strength, and sensation ... also indicate[s] that his symptoms were not as severe as [the claimant] asserted").
Finally, plaintiff's disability claims were inconsistent with her reported activities, including her reports that she cared for her five-year old son; cooked; cleaned; did laundry; vacuumed; washed dishes; mowed the lawn; went for walks; drove a car; and socialized. Tr. at 48, 57-59, 190-94, 267. See Lamorey v. Barnhart, 158 F. App'x 361, 363 (2d Cir. 2006) ("substantial evidence of routine activities" properly found to be inconsistent with claims of total disability); see also Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir. 2009). Plaintiff's reports of the effectiveness of medication and treatments in alleviating her disabling pain, including her reports that epidural steroid injections improved her neck pain by as much as 70%; medial branch block injections relieved her neck and thoracic spine pain; and radiofrequency ablation relieved her neck pain, Tr. at 734, 736, 754-55, 790, 794, also support the ALJ's conclusion that plaintiff's allegations of disabling pain and functional limitations were not as intense, persistent or limiting as she claimed. See Calabrese v. Astrue, 358 F. App'x 274, 277 (2d Cir. 2009) ("It is the function of the [Commissioner], not the [reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant.... "[W]here the ALJ's decision to discredit a claimant's subjective complaints is supported by substantial evidence, we must defer to his findings.").
In light of this record, the ALJ's physical RFC assessment was reasonable and supported by substantial evidence.
(2) The ALJ's Assessment of Plaintiff's Mental RFC
In his decision, the ALJ found that plaintiff's medically determinable mental impairment of personality disorder was non-severe because her impairment did not cause more than minimal limitations on plaintiff's ability to perform basic mental work activities. Tr. at 18-19. Plaintiff contends, however, that the ALJ did not properly assess plaintiff's mental functional limitations because he failed to (i) consider her mental impairments beyond step 2 of the sequential analysis; and (ii) incorporate Dr. Herman's assessment of mild limitations into plaintiff's RFC. DE 14-1 at ¶¶ 1, 14-15.
When a mental impairment is alleged, the regulations require the ALJ to apply a "special technique" at the second and third steps of the five-step evaluation framework to determine the degree, if any, of claimant's mental impairment. Petrie, 412 F. App'x at 408 (citing 20 C.F.R. § 404.1520a). To evaluate the severity of a claimant's mental impairment, the ALJ rates the degree of claimant's functional limitation in four broad functional areas. Id. The Social Security Administration regulations, as amended, identify the following areas of mental functioning: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). These four functional areas are known as the "paragraph B" criteria. 20 C.F.R. § 404, Subpt. P, App. 1. The ALJ's decision must reflect the application of the special technique and "include a specific finding as to the degree of limitation in each of the [four] functional areas." Kohler, 546 F.3d at 266 (citing 20 C.F.R. § 404.1520a(e) ). Each functional area is rated on a five-point scale of: "[n]one, mild, moderate, marked, and extreme." 20 C.F.R. § 404.1520a(c)(4). The severity assessment at the second step is a threshold matter limited to screening out de minimis claims. See Whipple v. Astrue, 479 F. App'x 367, 369 (2d Cir. 2012) ; see also McIntyre v. Colvin, 758 F.3d 146, 150-51 (2d Cir. 2014). As such, "[a] finding of ‘not severe’ should be made if the medical evidence establishes only a ‘slight abnormality’ which would have ‘no more than a minimal effect on an individual's ability to work’." Mezzacappa v. Astrue, 749 F. Supp. 2d 192, 205 (S.D.N.Y. 2010) (quoting Rosario v. Apfel, No. 97-CV-5759 (EHN), 1999 WL 294727, at *5 (E.D.N.Y. Mar. 19, 1999) ).
The Social Security Administration adopted regulations that changed the criteria applicable to the evaluation of a claimant's mental impairment. See Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66, 138 (Sept. 26, 2016) (to be codified at 20 C.F.R. pt. 404). The new regulations were effective on January 1, 2017 and applied to claims that were pending on or after the effective date. Because the ALJ's decision was issued on July 18, 2018 and the Appeals Council denied plaintiff's request on July 3, 2019, the new regulations apply.
Here, the ALJ's decision demonstrates appropriate application of the "special technique." Tr. at 18-30. At step two of the five step sequential analysis, the ALJ concluded that plaintiff did not have a severe medically determinable mental impairment of a personality disorder. Id. at 18. In arriving at this conclusion, the ALJ considered the requisite areas of mental functioning by examining the psychiatric examinations of plaintiff's treating sources, the psychiatric consultative examinations, and plaintiff's reported activities of daily living. The ALJ determined that plaintiff had mild limitations in the first three functional areas, viz. understanding, remembering, or applying information; interacting with others; and concentrating, persisting, or maintaining pace; and no limitation in the fourth functional area of adapting or managing herself. Id. at 18-19. Substantial evidence supports the ALJ's determinations.
At step 3, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. Tr. at 20-22.
First, plaintiff's treating physicians’ assessments indicated that plaintiff had appropriate mood and affect, a sufficient fund of knowledge, normal insight and judgment, and normal attention span, concentration and memory. Tr. at 485, 502. Thus, the ALJ's determination that plaintiff's mental impairment was not severe was supported by the psychiatric treatment notes of her treating sources. See, e.g., Pritchard v. Comm'r of Soc. Sec., No. 1:18-CV-0282 (WBC), 2020 WL 5203670, at *5 (W.D.N.Y. Aug. 31, 2020) (concluding that the record failed to support allegations of disabling mental impairments or required the imposition of work-related limiting findings where the mental health summaries indicated plaintiff to be "managing well, was alert and oriented, ... her mood was euthymic and her recent and remote memory were intact").
Moreover, the psychiatric consultants’ assessments that plaintiff had mild limitations in the functional areas support the ALJ's determination that plaintiff's mental impairment was not severe. See Townsend v. Berryhill, No. 5:17-CV-0583 (LEIC), 2018 WL 4153924, at * 8 (N.D.N.Y. Aug. 30, 2018) ("If the ALJ concludes that the claimant's degrees of limitation in these functional areas are nonexistent or mild, the impairment is not considered severe."). Dr. Herman's examination indicated mild limitations in the four broad areas, and he opined that plaintiff's psychiatric issues were not significant enough to interfere with her ability to function on a daily basis. Tr. at 321-24. Dr. Fassler's assessment indicated mild limitations in performing activities of daily living; maintaining social functioning; and maintaining concentration, persistence or pace; and he opined that plaintiff's mental impairment was not severe. Id. at 78-80. Cf. Cote v. Berryhill, No. 3:17 CV 1843 (SALM), 2018 WL 4092068, at *11 (D. Conn. Aug. 28, 2018) (finding substantial evidence supported ALJ's finding that plaintiff did not have marked difficulties in social functioning where two state consultative professionals’ assessments found that plaintiff had only moderate limitations in this area).
Finally, plaintiff's reported activities of daily living further bolster the ALJ's conclusion as to the severity of her mental impairment, including plaintiff's reports that she (i) was able to pay bills, count change, handle a savings account, and use a checkbook; (ii) was capable of caring for her son, taking her son to the park, maintaining social activities with others, getting along with family, friends, neighbors and others; (iii) helped her son with homework, prepared meals, drove, performed household chores, occasionally did laundry; and (iv) had no difficulties attending to her personal care, except some leg numbness at times, and took her medication without reminders. Tr. at 18-19, 45-62, 190-97. That is to say, plaintiff's reported activities support the ALJ's conclusion that her mental impairment caused either mild limitation or no limitation of her daily living activities. Cf. Townsend , 2018 WL 4153924, at *8 (finding plaintiff's reported activities of daily living, viz. that plaintiff was capable of "shopping for groceries, bathing, washing dishes, dressing herself, assisting her elderly grandmother, and walking to and from her medical appointments," supported the ALJ's conclusion that plaintiff's mental impairments did not significantly impact three of the four functional areas); Petrie , 412 F. App'x at 409 (affirming that substantial evidence supported the ALJ's finding of no severe impairment where "[e]vidence in the record consistently showed that [the plaintiff] was able to dress, bathe, and groom himself on a daily basis," and where he was able to "perform general cleaning, laundry, and shopping"); see also James R. v. Berryhill, No. 8:17-CV-0675 (CFH), 2018 WL 8996355, at *9 (N.D.N.Y. Sept. 10, 2018) (finding the ALJ did not err in finding plaintiff was not disabled when he relied on plaintiff's reported daily living activities "which included grocery shopping, bi-weekly cooking, cleaning once a month, showering, and drawing, as well as ... positive relationships with family and other people he came into contact with").
Significantly, this is not a situation where the ALJ failed to evaluate the evidence relevant to plaintiff's mental functioning. In making the paragraph B determination, the ALJ's decision made clear:
The limitations identified in the "paragraph B" criteria are not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process. The mental residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraph B of the adult mental disorders listing in 12.00 of the Listing of Impairments (SSR 96-8p). Therefore, the following residual functional capacity assessment reflects the degree of limitation the undersigned has found in the "paragraph B" mental functional analysis.
Tr. at 19. See Chappell v. Comm'r of Soc. Sec., No. 1:18-CV-01384 EAW, 2020 WL 1921222, at *4-6 (W.D.N.Y. Apr. 21, 2020) (holding that an ALJ's finding at steps two or three does not automatically translate to an identical finding at step four and noting that the ALJ explained as much by stating "[t]he limitations identified in the "paragraph B" criteria are not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process."); Coleman v. Comm'r of Soc. Sec., 335 F. Supp. 3d 389, 401-02 (W.D.N.Y. 2018) (same); see also SSR No. 96-8p, 1996 SSR LEXIS 5, at *13 (1996) (noting that under the psychiatric review technique, "the adjudicator must remember that the limitations identified in the ‘paragraph B’ ... criteria are not an RFC assessment but are used to rate the severity of mental impairment (s) at steps 2 and 3 of the sequential evaluation process").
The ALJ continued to consider plaintiff's mental limitations and the relevant evidence again in subsequent steps, to wit, as part of the RFC determination. Tr. at 23-32. At step 4 the ALJ examined the record evidence and concluded:
The claimant has alleged both physical and mental impairments. While some of the mental impairment allegations have been discussed above in the "paragraph B" criteria discussion, there is additional consideration of the mental and physical allegations. However, while there is overlap between the two, they paint a distinct picture for the undersigned to consider when making a determination of the claimant's disability. She stated she was able to care for her five-year old son on a daily basis, including doing daily [c]hores, dressing, washing, cooking and doing homework....
* * * * *
.... The undersigned has considered the claimant's impairments and included them in the residual functional capacity. The record supports a reduction to the light exertional level with non-exertional limitations.
Id. at 23-29. The ALJ further considered plaintiff's mental impairment in connection with the requirements of her past relevant work. Id. at 29-32. The ALJ concluded with input from the vocational expert, that plaintiff retained the capacity of performing her past relevant work as a teaching assistant, a semi-skilled position:
The claimant is limited to light work with additional non-exertional and mental limitations, all of which are consistent with the positional requirements of the
claimant's past relevant work. Based on the residual functional capacity found herein and the claimant's other vocational factors, the vocational expert testified that the claimant could perform the past relevant work as a teaching assistant.... In comparing the claimant's residual functional capacity with the physical and mental demands of this work, the undersigned finds that the claimant is able to perform it as actually and generally performed.
Id.
In view of this record, the ALJ properly considered the evidence relevant to plaintiff's mental impairment both at step 2 and in subsequent steps during the RFC formulation. Accordingly, remand on this basis is not warranted.
CONCLUSION
For the foregoing reasons, the plaintiff's motion for judgment on the pleadings is denied, and the Commissioner's motion for judgment on the pleadings is granted. The Clerk of the Court is respectfully directed to enter judgment and close this case.