Opinion
20-CV-02842 (VSB) (RWL)
08-03-2021
NICOLE ARCH, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION: SOCIAL SECURITY APPEAL
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE
BACKGROUND
Plaintiff Nicole Arch, represented by counsel, commenced the instant action against Defendant Commissioner of the Social Security Administration (the “Commissioner”), pursuant to the Social Security Act (the “Act”), 42 U.S.C. §§ 405(g), 1383(c)(3), seeking review of the Commissioner's decision that Ms. Arch is not entitled to disability insurance benefits (“DIB”) under the Act. Both parties have cross-moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules Of Civil Procedure. For the following reasons, Ms. Arch's motion should be GRANTED, the Commissioner's motion should be DENIED, and the case should be remanded for further consideration by the Administrative Law Judge (the “ALJ”).
PROCEDURAL HISTORY
On January 24, 2017, Ms. Arch filed a Title II application for DIB for a period of disability beginning on October 1, 2016. (R. 66.) Ms. Arch claimed disability due to right shoulder, neck, and head impairments, bipolar disorder, depression, anxiety, thyroid, diabetes, sleep apnea, and high cholesterol. (R. 66; see also R. 168-82.) On April 17, 2017, the Social Security Administration (the “Administration”) denied Ms. Arch's claim. (R. 88.) Soon thereafter, Ms. Arch filed a written request for a hearing. (R. 96-97.)
“R.” refers to the Administrative Record (Dkt. 19).
On January 14, 2019, Ms. Arch, represented by counsel, appeared and testified at a video hearing before ALJ Michael Stacchini. (R. 34-63.) A vocational expert also appeared and testified. (R. 55.) On February 12, 2019, the ALJ issued a decision finding Ms. Arch not disabled and capable of performing a range of light work. (R. 16.) On February 10, 2020, the Appeals Council denied Ms. Arch's request for review of the ALJ's decision, and the ALJ's decision became the final determination of the Commissioner. (R. 1-6.)
Represented by counsel, Ms. Arch filed her Complaint in this action on April 6, 2020, seeking district court review pursuant to 42 U.S.C. § 405(g). (Complaint, Dkt. 1.) On December 18, 2020, the Honorable Vernon S. Broderick, U.S.D.J., referred this matter to the undersigned for a report and recommendation. (Order Referring Case to Magistrate Judge, Dkt. 23.)
APPLICABLE LAW
A. Standard Of Review
A United States District Court may affirm, modify, or reverse (with or without remand) a final decision of the Commissioner. 42 U.S.C. § 405(g); Skrodzki v. Commissioner Of Social Security Administration, 693 Fed.Appx. 29, 29 (2d Cir. 2017) (summary order). The inquiry is “whether the correct legal standards were applied and whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004); see also Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (same).
“‘Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.'” Douglass v. Astrue, 496 Fed.Appx. 154, 156 (2d Cir. 2012) (quoting Kohler v. Astrue, 546 F.3d 260, 265, 269 (2d Cir. 2008) (remanding for noncompliance with regulation, which resulted in incomplete factual findings)). Courts review de novo whether the correct legal principles were applied and whether the legal conclusions made by the ALJ were based on those principles. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (reversing where the court could not “ascertain whether [the ALJ] applied the correct legal principles … in assessing [plaintiff's] eligibility for disability benefits”); Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (reversing where the Commissioner's decision “was not in conformity with the regulations promulgated under the Social Security Act”); Thomas v. Astrue, 674 F.Supp.2d 507, 515, 520 (S.D.N.Y. 2009) (reversing for legal error after de novo consideration).
If the reviewing court is satisfied that the ALJ applied correct legal standards, then the court must “‘conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision.'” Brault v. Social Security Administration, Commissioner, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). 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.'” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971)); see also Biestek v. Berryhill, __ U.S. __, __, 139 S.Ct. 1148, 1154, 139 S.Ct. 1148, 1154 (2019) (reaffirming same standard). “The substantial evidence standard means once an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448 (internal quotation marks omitted) (emphasis in original); see also 42 U.S.C. § 405(g) (“findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive”).
To be supported by substantial evidence, the ALJ's decision must be based on consideration of “all evidence available in [the claimant]'s case record.” 42 U.S.C. § 423(d)(5)(B). The Act requires the ALJ to set forth “a discussion of the evidence” and the “reasons upon which [the decision] is based.” 42 U.S.C. § 405(b)(1). While the ALJ's decision need not “mention[ ] every item of testimony presented, ” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam), or “‘reconcile explicitly every conflicting shred of medical testimony, '” Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983)), the ALJ may not ignore or mischaracterize evidence of a person's alleged disability, see Ericksson v. Commissioner Of Social Security, 557 F.3d 79, 82-84 (2d Cir. 2009) (mischaracterizing evidence); Kohler, 546 F.3d at 268-69 (overlooking and mischaracterizing evidence); Ruiz v. Barnhart, No. 01-CV-1120, 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring evidence).
Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). The court must afford the Commissioner's determination considerable deference and may not substitute “‘its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'” Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary Of Health And Human Services, 733 F.2d 1037, 1041 (2d Cir. 1984)); Dunston v. Commissioner Of Social Security, No. 14-CV-3859, 2015 WL 54169, at *4 (S.D.N.Y. Jan. 5, 2015) (quoting Jones, 949 F.2d at 59), R. & R. adopted, 2015 WL 1514837 (S.D.N.Y. April 2, 2015). Accordingly, if a court finds that there is substantial evidence supporting the Commissioner's decision, the court must uphold the decision, even if there is also substantial evidence for the claimant's position. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). The court, however, will not defer to the Commissioner's determination if it is “the product of legal error.” Dunston, 2015 WL 54169 at *4 (internal quotation marks omitted) (citing, inter alia, Douglass, 496 Fed.Appx. at 156; Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)).
B. Legal Principles Applicable To Disability Determinations
Under the Act, every individual meeting certain requirements and considered to have a “disability” is entitled to disability insurance benefits. 42 U.S.C. § 423(a)(1). The Act defines disability as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A claimant's impairments must be “of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).
To determine whether an individual is disabled and therefore entitled to DIB, the Commissioner conducts a five-step inquiry. 20 C.F.R. § 404.1520. First, the Commissioner must determine whether the claimant is currently engaged in any substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). Second, if the claimant is not gainfully engaged in any such activity, the Commissioner must determine whether the claimant has a “severe impairment” that significantly limits the claimant's ability to do basic work activities. Under the applicable regulations, an impairment or combination of impairments that significantly limits the claimant's ability to perform basic work activities is considered “severe.” 20 C.F.R. § 404.1520(a)(4)(ii), (c). Third, if the claimant has a severe impairment, the Commissioner must determine whether the impairment is, or medically equals, one of those included in the “Listings” of the regulations contained at 20 C.F.R. Part 404, Subpart P, Appendix 1. If it is, the Commissioner will presume the claimant to be disabled, and the claimant will be eligible for benefits. 20 C.F.R. § 404.1520(a)(4)(iii), (d).
If the claimant does not meet the criteria for being presumed disabled, then, at the fourth step, the Commissioner must next assess the claimant's residual functional capacity (“RFC”) - that is, the claimant's ability to perform physical and mental work activities on a sustained basis despite his or her impairments - and determine whether the claimant possesses the RFC to perform the claimant's past work. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is not capable of performing prior work, the Commissioner must then determine at the fifth step whether the claimant is capable of performing other available work. 20 C.F.R. § 404.1520(a)(4)(v), (e). If the claimant can perform the claimant's past work or other available work, the claimant is not considered disabled. 20 C.F.R. § 404.1520(a)(4)(iv), (v).
The claimant bears the burden of proof for the first four steps. Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). Once the claimant has established that they are unable to perform their past work, however, the Commissioner bears the burden of showing at the fifth step that “there is other gainful work in the national economy which the claimant could perform.” Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998) (internal quotation marks omitted).
THE FACTUAL AND MEDICAL RECORD
Both Ms. Arch and the Commissioner have provided summaries of the medical evidence and other facts contained in the record. Although each party emphasizes the facts most favorable to their position and the Commissioner provides a more extensive summary of the medical evidence and other evidence in the record, the summaries are consistent in all material respects. Accordingly, the Court adopts Ms. Arch's and the Commissioner's summaries of the medical evidence and other objective facts as accurate for purposes of the issues raised in the cross-motions.
Ms. Arch does not contest the ALJ's findings relating to her mental impairments. Rather, Ms. Arch argues that the ALJ's determination of her RFC was flawed because it failed to give controlling weight to Ms. Arch's treating physician's opinions with respect to her physical ailments. Ms. Arch also claims that the ALJ failed to consider her cervicogenic headaches, a severe impairment, in determining her RFC. (Pl. Mem. at 13-18.)
“Pl. Mem.” refers to Plaintiff's Memorandum Of Law In Support Of Plaintiff's Motion For Judgment On The Pleadings (Dkt. 29).
A. Personal History
Ms. Arch was born on November 4, 1986 and has a high school education. (R. 26.) Ms. Arch testified that she lives with her family and enjoys occasionally spending time with her friend and cousin. (R. 40.) She can prepare simple meals for herself and maintains proper hygiene. (R. 41-42, 53, 224.) She is capable of cleaning the dishes, walking her dog, taking out the garbage, and making her bed. (R. 41-42, 52-53.)
In February 2013, over three years before the alleged onset date, Ms. Arch was working as a teacher aide when she was injured by a student who pushed her against a wall. (R. 353.) Ms. Arch sustained injuries to the right side of her neck and right shoulder. (R. 353.) When asked about her symptoms during the January 2019 hearing, Ms. Arch testified that they include dizziness and nausea, as well as pain in her jaw, neck, shoulder, arm, and leg. (R. 45.) She testified that her neck pain radiates through her arm and down her side and leg. (R. 45.)
She has headaches every day that last two to three days at a time; her pain level is typically an 8/10. (R. 46.) At the time of the hearing, Ms. Arch was not prescribed any medication for her neck and shoulder pain because she could not take medication for physical ailments in conjunction with medication for mental health impairments. (R. 49.) Instead, Ms. Arch applies a topical lotion to alleviate her pain. (R. 49.)
Ms. Arch also testified that her sleep apnea and obesity affect her functioning because she gets “extremely, extremely tired, ” and her weight impacts her ability to walk long distances, stand, or sit. (R. 47-48.) On a typical day, Ms. Arch takes her dog out and spends the rest of the day resting in bed. (R. 52.) She has no desire to do anything because of “the way [she] feels” and spends eight hours a day lying down. (R. 53.)
In 2017 and 2018, Ms. Arch worked as a seasonal, light-duty security guard at the New York Renaissance Fair; from 9:30 a.m. - 6:00 p.m. on some weekends. (R. 43-44.) In that position, she checked IDs and bags at the front gate of the event venue. (R. 44.) Aside from that seasonal work, Ms. Arch has not worked since October 2016. (R. 43.)
B. Medical History Before The October 1, 2016 Onset Date
Following Ms. Arch's injury in February 2013, an MRI of her cervical spine revealed disc bulges at ¶ 6-C7 and C7-T1 which flattened the ventral subarachnoid space. (R. 328.) As a result of her neck pain, shoulder pain, and headaches from the incident, Ms. Arch consulted with neurologist Andrew Faskowitz, who diagnosed Ms. Arch with cervicogenic headaches on April 24, 2014. (R. 506-09.) Dr. Faskowitz advised Ms. Arch to perform cervical traction exercises at physical therapy (“PT”). (R. 509.) Accordingly, Ms. Arch attended PT sessions in 2014. (R. 675, 681, 687.) A PT report on July 23, 2014 noted that, although Ms. Arch performed “quite well” in PT and was “markedly better, ” she still experienced intermittent discomfort in her right cervical spine and headaches. (R. 675.) A May 1, 2014 report indicated that Ms. Arch's work irritated her pain symptoms, which remained present. (R. 681.)
Throughout 2014 and 2015, Ms. Arch continued to consult with Dr. Faskowitz about her pain and cervicogenic headaches. During those visits, Ms. Arch generally rated her pain level 0/10 with PT. She still experienced cervicogenic headaches and occipital neuralgia, however, and Dr. Faskowitz noted that it was medically necessary for Ms. Arch to continue PT to help her pain. (R. 500-01 (February 23, 2015 visit); R. 510-13 (June 5, 2014 visit); R. 514-15 (July 17, 2014 visit); R. 519-21, 523-25 (October 12, 2015 visit); R. 528-529 (November 3, 2014 visit).)
Occipital neuralgia is a type of headache that produces piercing pain in the upper neck, back of the head, and behind the ears. See National Institute of Neurological Disorders and Stroke, Occipital Neuralgia Information Page, https://www.ninds.nih.gov/Disorders/ All-Disorders/Occipital-Neuralgia-Information-Page (last visited August 2, 2021).
In February 2016, Ms. Arch was in a car accident coming home from work, which caused her pain to worsen. (R. 341.) In March 2016, an MRI of Ms. Arch's right shoulder showed supraspinatus and infraspinatus tendinopathy as well as disc protrusions at the C6-C7 and C7-T1 portions of the spine. (R. 335.) After examining Ms. Arch on April 26, 2016, orthopedic surgeon Dr. Gabriel Dassa concluded that Ms. Arch did not need right shoulder surgery but diagnosed Ms. Arch with shoulder impingement syndrome and cervical radiculopathy. (R. 398.)
Tendinopathy produces shoulder pain, particularly when an individual performs overhead movements. See UVA Health, Shoulder Tendinopathy, https://uvahealth.com/ services/sports-medicine/shoulder-tendinopathy (last visited August 2, 2021).
Radiculopathy refers to the pinching of a nerve root in the spinal column that produces pain, weakness, numbing, and tingling. See Johns Hopkins Medicine, Radiculopathy, https://www.hopkinsmedicine.org/health/conditions-and-diseases/radiculopathy (last visited August 2, 2021).
On June 21, 2016, Ms. Arch was examined by Dr. Steven Weinstein, a physical medicine and rehabilitation specialist with respect to her neck and right shoulder pain. (R. 314-18.) Dr. Weinstein found no evidence of right or left ulnar neuropathy or right or left C5-T1 radiculopathy. (R. 314-16.) On July 18, 2016, an MRI of Ms. Arch's cervical spine revealed disc protrusions at the C6-C7 and C7-T1 locations in the cervical spine. (R. 336-37.) The MRI report noted no significant changes from Ms. Arch's February 2013 MRI. (R. 336-37.)
In both June and September 2016, Ms. Arch reported to Dr. Faskowitz that her head and neck pain were a 0/10 with PT; without PT, however, she reported her pain as around an 8/10, making her unable to work in any capacity, and she recounted being sent home from work in the past due to severe pain. (R. 338, 341.) During both visits, Ms. Arch reported that workers' compensation stopped paying for PT. (R. 338, 341.) Based on his examination, Dr. Faskowitz diagnosed Ms. Arch with headaches, cervicalgia, and cervical region radiculopathy. (R. 340.) Dr. Faskowitz strongly recommended that Ms. Arch continue with PT or “[Ms. Arch] is going to end up on disability.” (R. 340.) The record shows that Ms. Arch restarted PT on September 15, 2016 when her pain level was an 8/10 and continued going to PT until December 8, 2016. (R. 362, 394.) During her visits in September 2016, specialists noted that Ms. Arch continued to experience “severe and intolerable” head and neck pain (R. 367, 371), and tenderness due to a “sprain of ligaments of [the] cervical spine” (R. 386, 388, 390, 392, 394, 395).
There is nothing in the record to suggest that Ms. Arch continued going to PT after December 8, 2016. The last PT examination in the record is dated December 8, 2016, and in the January 2019 hearing, when asked about her physical pain management, Ms. Arch stated that she only treated her pain topically at that time. (R. 49, 362.)
C. Medical History After The October 1, 2016 Onset Date
In October 2016, specialists diagnosed Ms. Arch with a “sprain of ligaments of [the] cervical spine.” (R. 376, 378-82, 384.) On October 12, 2016, Ms. Arch complained about neck and right shoulder pain, which she rated as 8/10. (R. 353.) Dr. Syed Hosain, Ms. Arch's pain management treating physician, found that Ms. Arch was experiencing pain to her neck and right tenderness of the middle cervical facet joints. (R. 357.) Ms. Arch's Spurling maneuver was negative for reproducing radicular pain on both sides. (R. 357.) As a result, Dr. Hosain believed that Ms. Arch's pain was more consistent with cervical facet disease and recommended Ms. Arch receive a cervical branch injection. (R. 357-58.) Ms. Arch received the injection in November 2016. (R. 361.)
A Spurling Maneuver (or Spurling Test) is useful for reproducing “symptoms by compression of the affected nerve root.” NCBI, Spurling Test, https:// www.ncbi.nlm.nih.gov/books/NBK493152 (last updated Sept. 3, 2020).
On October 21, 2016, during a visit to Dr. Hyman, Ms. Arch commented that continued PT helped to reduce her pain; however, she still noted her neck pain to be a 6/10. (R. 364.) On January 30, 2017, Dr. David Tucker, an orthopedist, examined Ms. Arch due to complaints of pain in the head, neck, and right shoulder. (R. 553-59.) Dr. Tucker found that Ms. Arch was limited in her cervical spine rotation and cervical flexion. (R. 553-59.) He also noted that Ms. Arch has reached “maximum medical improvement” and that “no further treatment would be productive.” (R. 558.)
On March 21, 2017, Dr. Jay Dinovitser, a consultative examiner, examined Ms. Arch and found decreased cervical spine extension, cervical spine tenderness, decreased right shoulder range of motion, and right shoulder tenderness. (R. 766-770.) He also diagnosed Ms. Arch with cervical spine pain and right shoulder pain. (R. 769.)
In December 2017, Ms. Arch returned to Dr. Hosain and reported that she was experiencing persistent 8/10 neck pain radiating to both of her shoulders. (R. 827.) Dr. Hosain found tenderness over the right side of Ms. Arch's neck and recommended continued stretching exercises. (R. 831-32.) He opined that Ms. Arch was limited to sitting 30-45 minutes, standing for 20 minutes, and lifting, pushing, or pulling less than ten pounds before her pain became severe. (R. 827.)
Ms. Arch returned to Dr. Hosain five times between February 2, 2018, and November 14, 2018 for her neck and upper back pain. (R. 833, 836, 839, 857, 860.) Each time, Dr. Hosain noted Ms. Arch's pain to be an 8/10. He found tender spots in Ms. Arch's neck and a restricted range of motion, despite Ms. Arch's stretching and use of Voltaren gel to alleviate her pain. (R. 833, 836, 839, 857, 861.)
D. Relevant Medical Opinions And Weight Given By The ALJ
There are three relevant sources of medical opinions regarding Ms. Arch's physical ailments and abilities. They include a state agency non-examining medical consultant, an internal medicine consultative examiner, and Ms. Arch's treating pain-management doctor.
In addition to the medical opinions discussed above, the ALJ also weighed the opinions of two mental health care professionals, Dr. Austin Small and Dr. Alison Murphy. (See R. 21, 23.) Because Ms. Arch does not contest the ALJ's decision with respect to her mental functioning, the Court does not address those opinions.
1. Dr. R. Abueg - State Agency Medical Consultant
On April 17, 2017, non-examining state agency medical consultant Dr. R. Abueg opined, based on Ms. Arch's medical records, that Ms. Arch could occasionally climb ramps/stairs but never climb ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, and crouch but could never crawl; and occasionally lift and/or carry up to 20 pounds, frequently lift and/or carry ten pounds, stand for 6 hours in an 8-hour workday, and sit for about 6 hours in an 8-hour workday. (R. 73-74.)
The ALJ afforded Dr. Abueg's opinion “some” weight, finding that Dr. Abueg's determination that Ms. Arch could perform a limited range of light work was consistent with the record at the time of review and somewhat consistent with the record in its entirety. (R. 22.) The ALJ acknowledged record evidence from before April 17, 2017, indicating that Ms. Arch experienced some pain symptoms due to her cervical spine impairment. (R. 22.) At the same time, however, the ALJ found that the record in its entirety showed that the impairments that caused those symptoms were stable and relatively well controlled with prescribed treatment methods. (R. 22-23.) The ALJ found that Ms. Arch's daily routine - preparing meals, walking her dog, performing work around the house, etc. - demonstrated her capability for some physical exertion. (R. 21, 23.) The ALJ also afforded some weight to Dr. Abueg's opinion because of his knowledge of the Social Security Disability Program and its evidentiary requirements. (R. 23.)
2. Dr. Jay Dinovitser - Internal Medicine Consultative Examiner
On March 21, 2017, internal medicine consultative examiner Dr. Jay Dinovitser opined that Ms. Arch had no limitation in using her hands, no limitations with stairs or other climbing, and no limitation in seeing, hearing, speaking, and sitting. (R. 769.) Dr. Dinovitser found Ms. Arch to have moderate limitations in pushing, pulling, lifting, and carrying, and mild limitations in bending and standing. (R. 769.)
The ALJ weighed Dr. Dinovitser's opinion similarly to that of Dr. Abueg. He afforded Dr. Dinovitser's opinion “some” weight, concluding that Dr. Dinovitser's opinion was somewhat consistent with the record in its entirety. The ALJ found that Dr. Dinovitser's assessment of Ms. Arch's limitations were consistent with the pain levels as reported by Ms. Arch. The ALJ noted, however, that prescribed treatment methods made the symptoms from Ms. Arch's severe impairments tolerable; Ms. Arch's daily living activities also showed that Ms. Arch's symptoms from her severe physical impairments were well controlled. (R. 23.) The ALJ also afforded weight to Dr. Dinovitser's opinion because of the consultative examiner's knowledge of the Social Security Disability Program and its evidentiary requirements. (R. 23.)
3. Dr. Syed Hosain - Pain Management Treating Physician
Dr. Syed Hosain, Ms. Arch's treating pain management physician, provided three relevant medical opinions: one on December 19, 2016 (the “December 2016 Opinion”), one on December 20, 2017 (the “December 2017 Opinion”), and one on January 2, 2019 (the “January 2019 Opinion”).
Dr. Hosain also provided a second opinion on January 2, 2019, that addressed Ms. Arch's mental functioning. (R. 870-71.) The ALJ accorded that opinion little weight. Because Ms. Arch does not contest the ALJ's findings with respect to her mental capacity, the Court does not discuss Dr. Hosain's opinion in that regard.
In the December 2016 Opinion, Dr. Hosain opined, as part of a workers' compensation claim, that Ms. Arch was unable to meet the requirements of sedentary work due to her restricted neck range of motion and tenderness of neck muscles. (R. 425-27.) Dr. Hosain opined that Ms. Arch could never pull/push, sit, stand, walk, climb, kneel, bend/stoop/squat, reach overhead, reach below shoulder level, drive a vehicle, operate machinery, or experience temperature extremes or humidity. (R. 426.) Ms. Arch could occasionally lift or carry. (R. 426.) The ALJ did not discuss Dr. Hosain's December 2016 Opinion in either recounting the medical history, or when weighing treating source opinions. (R. 10-28.)
In the December 2017 Opinion, Dr. Hosain opined that, due to her persistent pain and a limited range of motion, Ms. Arch was limited to sitting for no more than 30-45 minutes, standing for 20 minutes, or lifting, pushing, or pulling no more than 5-10 pounds of weight. (R. 827.) In recounting the medical history, the ALJ discussed the December 2017 report, but did not acknowledge that it is an opinion (R. 19), and the ALJ did not mention it at all when weighing the treating source opinions (R. 21-28).
Neither party references Dr. Hosain's December 2017 Opinion as a medical source opinion, but it most definitely is one. As defined in the relevant regulations, opinions are “statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1). The December 2017 Opinion does exactly that, discussing Ms. Arch's impairments and addressing her capabilities and restrictions. (R. 827.)
In his January 2019 Opinion, Dr. Hosain opined that Ms. Arch could stand/walk for less than one hour in an eight-hour workday and sit for less than two hours in an eight-hour workday. (R. 872.) Dr. Hosain further opined that Ms. Arch may occasionally lift zero to five pounds but could never lift or carry more than five pounds. (R. 872.) He found that Ms. Arch could never climb, bend, stoop, crouch, kneel, or crawl but could occasionally balance. (R. 873.) And he opined that Ms. Arch could never reach or push/pull but could occasionally feel/handle. (R. 873.)
The ALJ afforded “little” weight to Dr. Hosain's January 2019 Opinion, finding it inconsistent with the record in its entirety. (R. 24.) The ALJ concluded that Ms. Arch's symptoms were well controlled with “medication treatment, ” as confirmed by Ms. Arch's activities of daily living. (R. 24.) The ALJ found the opinion inconsistent with Dr. Hosain's own treatment notes, which, according to the ALJ, indicated that “[s]he had full strength with no motor or sensory deficit with conservative treatment methods.” (R. 24.) And, the ALJ concluded that Dr. Hosain based his opinions on Ms. Arch's subjective complaints rather than Dr. Hosain's objective findings because Dr. Hosain filled out the form in Ms. Arch's presence. (R. 24.)
E. Vocational Expert Testimony
Vocational Expert Linda Stein (the “VE”) testified that Ms. Arch's past work was as a teacher aide, nurse assistant, and security guard at the renaissance fair. (R. 58.) The ALJ asked the VE to consider whether an individual of Ms. Arch's age, education, prior work history, and RFC could perform those past jobs. (R. 58-59.) The VE testified that such an individual would not be able to perform Ms. Arch's past relevant work; at the same time, such individual would be able to work as a hand bander, hand packager inspector, and mail clerk, all of which exist in significant numbers in the national economy. (R. 58-59.)
F. The ALJ's Decision
On February 12, 2019, the ALJ issued a decision concluding that Ms. Arch was not disabled under §§ 216(i) and 223(d) of the Act. The ALJ followed the Administration's five-step framework to determine whether Ms. Arch was disabled pursuant to 20 C.F.R. § 404.1520(a).
First, the ALJ found that Ms. Arch had not engaged in substantial gainful activity since October 1, 2016, her alleged onset date. Second, the ALJ found that Ms. Arch had both the physical and mental severe impairments since her alleged onset date; namely, degenerative disc disease in the cervical spine, obesity, cervicogenic headaches, right shoulder tendinopathy, obstructive sleep apnea, depressive disorder, obsessive compulsive disorder, bipolar disorder, mood disorder, anxiety disorder, and attention deficit hyperactivity disorder. Third, the ALJ found that Ms. Arch did not have an impairment or a combination of impairments that met or medically equaled one of the impairments (for which there is a presumption of disability) listed in 20 C.F.R. § 404, Subpart P, Appendix 1.
The ALJ found that Plaintiff's hypothyroidism and diabetes mellitus were non-severe impairments and therefore, “would have no more than a minimal effect on the claimant's ability to meet the basic demands of work activity.” (R. 13.) Ms. Arch does not contest the ALJ's findings at step two. (See R. 47; Pl. Mem. at 12-18.)
Before proceeding to step four, the ALJ considered the entire record and found that Ms. Arch had the RFC to perform “light work” as defined in 20 C.F.R. § 404.1567(b), except that she could occasionally climb ramps and stairs and could not climb ladders, ropes, or scaffolds. Ms. Arch could occasionally balance, stoop, kneel, crouch, but could not crawl. Ms. Arch could frequently reach with the right upper extremity but should avoid unprotected height and hazardous machinery. Additionally, Ms. Arch was limited to understanding, remembering, and carrying out simple and routine tasks in a low stress job - defined as one having changes in work setting and decision making related to simple and routine tasks. Ms. Arch was also limited to occasional interaction with the public, coworkers, and supervisors.
In his decision, the ALJ mistakenly conflates work at the “light exertional level” and work at the “sedentary exertional level” when discussing Ms. Arch's limitations. (R. 25.) Light exertional work involves lifting no more than 20 pounds at a time and frequently carrying and lifting articles weighing up to ten pounds, whereas work at the sedentary exertional level involves lifting no more than ten pounds at a time and occasionally lifting light articles. See 20 C.F.R. § 404.1567(a)-(b). Despite concluding that Ms. Arch “has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b)” with some added limitations, the ALJ curiously uses “light” and “sedentary” interchangeably when recapitulating his decision. (R. 16, 25.)
At step four, the ALJ found that Ms. Arch did not have the RFC to perform any past relevant work. Finally, the ALJ determined that given Ms. Arch's age, education, work experience, and RFC, and based on the VE's testimony, jobs existed in significant numbers in the national economy that Ms. Arch could perform. (R. 26.)
DISCUSSION
Ms. Arch advances two main arguments in support of reversing (or, alternatively, remanding) the ALJ's findings. Ms. Arch asserts that the Commissioner's decision is erroneous and not supported by substantial evidence because (1) the ALJ failed to give controlling weight to three opinions issued by Ms. Arch's treating physician, Dr. Hosain, and (2) the ALJ failed to consider Ms. Arch's severe headaches in his RFC assessment. (Pl. Mem. at 5.) The Commissioner opposes, arguing that the ALJ's decision was supported by substantial evidence and free from legal error. (Def. Mem. at 12-25.) The Court agrees with Ms. Arch with respect to the first alleged error, but not the second.
“Def. Mem.” refers to Defendant's Memorandum Of Law In Support Of Defendant's Cross-Motion For Judgment On The Pleadings And In Opposition To Plaintiff's Motion For Judgment On The Pleadings (Dkt. 32).
A. The ALJ Erred In Failing To Comply With The Treating Physician Rule
The ALJ erred by failing to provide “good reasons” for assigning little weight to Dr. Hosain's January 2019 Opinion and simply ignoring his earlier opinions from December 2016 and December 2017. In doing so, the ALJ violated the “treating-physician” rule, which warrants remand so that the ALJ can “comprehensively set forth [good] reasons” for his weighing of Dr. Hosain's opinions. Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d. Cir. 2019); see also Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (“We will continue remanding when we encounter opinions from ALJ's that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion”).
The ALJ set forth the totality of his explanation for affording Dr. Hosain's 2019 opinion little weight in a few sentences:
The record indicates that the claimant's symptoms from her severe physical impairments are stable and well controlled with medication treatment. The claimant's activities of daily living also support that her symptoms are stable and well controlled with prescribed treatment methods. Furthermore, Dr. Hosain's opinion is not consistent with his own treatment notes, which revealed that he had full strength with no motor or sensory deficit with conservative treatment methods .... [T]hese opinions by Dr. Hosain was based on the claimant's subjective complaints rather than Dr. Hosain's objective findings ….(R. 24.) Multiple errors infected the ALJ's analysis. First, one of the ALJ's main reasons for finding Dr. Hosain's opinion inconsistent with the medical record - that Ms. Arch's symptoms were well controlled by prescribed medical treatment - is not supported by substantial evidence; for at least the two years prior to the hearing, the record shows that Ms. Arch was not receiving the earlier pain treatments that had effectively limited her pain, and that thereafter her reported pain level was consistently high. Second, the ALJ faulted Dr. Hosain's opinion as being inconsistent with his own treatment notes based on indicia that have no apparent connection to Ms. Arch's symptomatic pain and debilitating headaches; meanwhile, Dr. Hosain's records are replete with notes that Ms. Arch continued to experience high levels of pain. Third, the ALJ impermissibly speculated that Dr. Hosain must not have made his own objective assessment merely because Ms. Arch was present when he completed his evaluation. Fourth, the ALJ improperly relied on Ms. Arch's ability to carry out the most basic of daily functions as proof that she could perform light work. Fifth, the ALJ erred by failing to even assess the weight of Dr. Hosain's December 2016 and December 2017 Opinions. Any and all of these errors require remand. The Court begins by explaining the treating physician rule.
1. The Treating Physician Rule
An ALJ must evaluate every medical opinion received. Rodriguez v. Colvin, No. 12-CV-3931, 2014 WL 5038410, at *17 (S.D.N.Y. Sept. 29, 2014). The treating physician rule generally requires deference to the medical opinion of a claimant's treating physician. Halloran, 362 F.3d at 32; see Scott v. Commissioner Of Social Security, No. 19-CV-1105, 2020 WL 1489830, at *9 (S.D.N.Y. March 27, 2020) (“Treating physicians' opinions are generally accorded deference because treating physicians ‘are likely to be the medical professionals most able to provide a detailed, longitudinal picture' of a claimant's condition and ‘bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations'”) (quoting 20 C.F.R. § 416.927(c)(2)). A treating physician's medical opinion is given controlling weight if it is “well supported by medically acceptable techniques and is not inconsistent with substantial evidence in the record.” Rodriguez, 2014 WL 5038410 at *17 (citing 20 C.F.R. § 416.927(c)(2)); accord Gonzalez v. Apfel, 61 F.Supp.2d 24, 29 (S.D.N.Y. 1999).
The regulations for evaluating medical opinions have been amended for claims filed on or after March 27, 2017. See 20 C.F.R. §§ 404.1527, 404.1520c; Revisions to Rules Regarding The Evaluation Of Medical Evidence, 82 Fed.Reg. 5844-01, 2017 WL 168819, at *5844, *5867-68 (Jan. 18, 2017). Ms. Arch filed her claim on January 24, 2017. Accordingly, the unamended rules apply.
If the ALJ gives a treating physician's opinion less than controlling weight, the ALJ must give “good reasons” for doing so. Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).
“To override the opinion of the treating physician, the [Second Circuit has] held that the ALJ must explicitly consider, inter alia: (1) the frequency, length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and, (4) whether the physician is a specialist.”Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (per curiam) (internal brackets omitted) (quoting Selian, 708 F.3d at 418); see also 20 C.F.R. § 416.927(c) (listing factors). A “slavish recitation of each and every factor” is unnecessary “where the ALJ's reasoning and adherence to the regulation are clear.” Atwater v. Astrue, 512 Fed.Appx. 67, 70 (2d Cir. 2013) (summary order). Thus, an “application of the treating physician rule is sufficient when the ALJ provides ‘good reasons' for discounting a treating physician's opinion that reflect in substance the factors … even though the ALJ declines to examine the factors with explicit reference to the regulation.” Crowell v. Commissioner Of Social Security, 705 Fed.Appx. 34, 35 (2d Cir. 2017) (summary order).
If the ALJ gives a treating physician's opinion less than controlling weight, the weight given to “any medical opinion, ” including the opinions of non-treating medical sources, must be assessed under the same factors. 20 C.F.R. § 416.927 (“Unless we give a treating source's medical opinion controlling weight under paragraph (c)(2) of this section, we consider all of the … factors in deciding the weight we give to any medical opinion”). “[A]n ALJ must at least consider limitations identified by a [non-treating] examiner and, if those limitations are rejected, must explain why.” Garcia v. Berryhill, No. 17-CV-10064, 2018 WL 5961423, at *12 (S.D.N.Y. Nov. 14, 2018) (emphasis in original) (citation omitted).
2. The Record Does Not Support The ALJ's Statement That Ms. Arch's Symptoms Were Well Controlled With Prescribed Treatment Methods
The ALJ concluded that Ms. Arch's “symptoms from her severe physical impairments are stable and well controlled with medication treatment.” (R. 24.) Earlier in his decision, the ALJ expressed the same conclusion, stating that “[t]he record as a whole indicates that the symptoms from the claimant's severe physical impairments that causes her pain symptoms are stable and somewhat relatively tolerable with prescribed treatment methods such as pain medication.” (R. 23.) Elsewhere, the ALJ phrased it slightly differently, finding that Ms. Arch's symptoms from her severe physical impairments were “stable and relatively well controlled with prescribed treatment methods such as pain medication.” (R. 22.)
The record is clear, however, that Ms. Arch did not take pain medication, at least not orally, during most of the relevant period: Ms. Arch took medication for pain in 2016 but had since stopped due to side effects when taken in combination with medication for her mental health impairments. (R. 49, 367.) The Commissioner argues that the ALJ's mistake constitutes harmless error because evidence in the record shows that Ms. Arch received prescribed “treatment methods” apart from medication, including PT, topical gel, and home stretching exercises. (Def. Mem. at 21; see R. 49.) Substantial evidence does not exist in the record, however, to show that Ms. Arch's pain and other symptoms were “well controlled” with those treatments during the relevant period. To the contrary, the record is replete with evidence that Ms. Arch's pain was not stable and well controlled during the relevant period.
Ms. Arch did take medication throughout the relevant period to treat symptoms that resulted from her mental health impairments, allergies, diabetes, and thyroid condition, none of which are relevant to the issue at hand. (R. 554, 831-32.)
There is evidence that prior to the onset date, Ms. Arch experienced pain relief - even 0/10 - with regular physical therapy, and that she continued physical therapy for several months after the onset date. (R. 338, 341, 833, 835, 840, 862.) But there is no evidence in the record that Ms. Arch attended PT during at least the two years prior to the Hearing; as noted, workers' compensation stopped paying for her PT, and the last PT record is dated from December 2016. (R. 338, 362.) The record indicates that Ms. Arch's only ongoing prescribed pain treatment of any kind during and after 2017 was topical application of Voltaren gel. (R. 49, 231, 371, 554, 835.) Doctors also recommended that Ms. Arch engage in stretching exercises, but nothing in the record indicates that stretching and/or the gel consistently were effective at reducing her pain to a level tolerable for engaging in light work. (See R. 533, 601, 827, 832-33, 835-36, 838, 840, 857, 862.)
As recounted in the medical record, Ms. Arch received a cervical facet injection, intended to alleviate pain, on November 4, 2016. (R. 361). There do not appear to be references to any other injections in the record, at least none that have been brought to the Court's attention or that the Court located in its own review.
The only evidence pertaining to Ms. Arch's pain that the ALJ acknowledges, other than Ms. Arch's efforts to seek out specialists for her pain, is from September 2016, before the relevant period, in which Ms. Arch notes her pain to be a 0/10 with PT but without PT she is unable to work in any capacity (R. 340); one examination by Dr. Hosain in October 2016, in which he noted Ms. Arch had increased pain in the right side of her neck (R. 353); and Dr. Hyman's finding in October 2016 of slight pain improvement in Ms. Arch's symptoms due to PT (R. 364). (R. 18-20). The ALJ appears to have overlooked record upon record, mostly from specialists, that provide evidence of Ms. Arch's debilitating pain in the ensuing years that followed. (R. 46, 364, 376, 378-84, 553-58, 766-70, 831, 834-35, 837-38, 839, 858, 861.) Some specialists noted that Ms. Arch was not in “acute distress” based on observations about her general appearance. (R. 357, 767, 831, 834, 837, 839, 858, 861.) But those observations do not address Ms. Arch's pain levels or limitations.
In short, substantial evidence does not support the ALJ's assertion that Ms. Arch's pain and other physical symptoms were stable and well controlled with prescribed medical treatments during the relevant period.
3. The ALJ Improperly Found That Dr. Hosain's Opinion Is Inconsistent With His Own Treatment
The ALJ concluded that “Dr. Hosain's opinion is not consistent with his own treatment notes, which revealed that [Ms. Arch] had full strength with no motor or sensory deficit with conservative treatment methods.” (R. 24.) That reasoning is problematic in at least two respects. First, the ALJ did not indicate what aspect or aspects of Ms. Arch's physiology were found to have “full strength.” Which limbs or other body parts did he have in mind? We don't not know because the ALJ did not say.
Second, the ALJ drew no connection between those particular findings and the relevant issues - Ms. Arch's upper extremity pain and headaches - and the Court does not discern any in the record. It is the ALJ's responsibility to “‘build an accurate and logical bridge from the evidence to [his] conclusion to enable meaningful review.'” Horton v. Saul, 19-CV-8944, 2021 WL 1199874, at *12 (S.D.N.Y. March 30, 2021) (quoting Hamedallah ex rel. E.B. v. Astrue, 876 F.Supp.2d 133, 142 (N.D.N.Y. 2012)). Because the ALJ failed to build any “logical bridge” to “enable meaningful review, ” the Court is left with no basis on which to evaluate whether substantial evidence supported the ALJ's determination. Horton, 2021 WL 1199874 at *12-13. In contrast, Dr. Hosain's notes consistently recorded Ms. Arch's neck and shoulder tenderness, restriction in movement, and pain, which not only contributes to Dr. Hosain's credibility as a treating physician, but also corroborates Ms. Arch's complaints of severe pain. (R. 833, 837-38, 839, 858, 860.) The ALJ seems to have ignored Dr. Hosain's findings in late 2016 that Ms. Arch had increased pain in the neck and tenderness over the middle cervical facet joints (R. 353-57), findings in 2017 of decreased cervical spine extension, spine tenderness, decreased spine flexion, decreased right shoulder range of motion, and right shoulder tenderness (R. 766-770), and examinations throughout 2018 finding limited range of motion of the head and tender spots in the neck (R. 833, 836, 839, 857, 860). An ALJ “‘may not “cherry-pick” [portions of medical examinations] that support his or her opinion while ignoring [portions] that do not.'” Salisbury v. Saul, No. 19-CV-706, 2020 WL 913420, at *34 (S.D.N.Y. Feb. 26, 2020) (quoting Tim v. Colvin, No. 12-CV-1761, 2014 WL 838080, at *7 (N.D.N.Y. March 4, 2014)). But in his analysis of Dr. Hosain's opinion, the ALJ did just that.
In short, the ALJ's assessment that Dr. Hosain's opinion was not consistent with his own treatment notes is not supported by substantial evidence.
4. The ALJ Improperly Speculated In Concluding That Dr. Hosain's Opinions Were Based On Ms. Arch's Subjective Complaints
The ALJ additionally found that because Ms. Arch was present at the time Dr. Hosain completed the assessment forms in 2019, the opinions within those forms necessarily were based on Ms. Arch's subjective complaints rather than Dr. Hosain's objective findings. (R. 24.) The ALJ offers no explanation or reasoning for drawing that conclusion. His speculative leap goes beyond reasonable inference, particularly given that Dr. Hosain had been treating Ms. Arch throughout the relevant period. See Ferraris v. Heckler, 728 F.2d 582 (2d Cir. 1984) (remanding case because it could not be determined whether an ALJ's conclusory statement was supported by substantial evidence).
5. The ALJ Improperly Relied Upon Ms. Arch's Basic Daily Activities
The ALJ also erred in the extent to which he relied on Ms. Arch's activities of daily living as basis to find Ms. Arch's symptoms are stable and well controlled. (R. 24.) Ms. Arch regularly maintains her personal grooming and hygiene, prepares meals, washes dishes, takes out the trash, and drives. (R. 40-44, 52-55, 223-35.) Those are basic and necessary activities of daily living. And, while a claimant's daily activities certainly are relevant and may be considered in evaluating a treating doctor's opinion, “a claimant's ability to engage in self-care and other domestic activities does not by itself establish that the claimant is not disabled.” Woodward v. Apfel, 93 F.Supp.2d 521, 529 (S.D.N.Y. 2000); see also Stellmaszyk v. Berryhill, No. 16-CV-9609, 2018 WL 4997515, at *25 (S.D.N.Y. Sept. 28, 2018) (“courts have recognized that a claimant's ability to engage in certain life activities [ ] does not necessarily mean that the claimant is capable of meeting the full requirements of sedentary work”); Boyd v. Apfel, No. 97-CV-7273, 1999 WL 1129055, at *3 (E.D.N.Y. Oct. 15, 1999) (activities, such as caring for one's basic needs, “do not by themselves contradict allegations of disability”). None of those activities essential to Ms. Arch's day-to-day functioning indicate that Ms. Arch's pain is “stable and well controlled” while carrying out those activities or otherwise. (Pl. Mem. at 15.)
The Commissioner also points to the fact that Ms. Arch seasonally worked a part-time, weekend job at the Renaissance Fair during August and September. That ignores, however, that Ms. Arch sometimes had to miss work altogether because of her pain. (R. 54.) Her work at the Renaissance fair was part-time, and she sometimes could not even complete a shift because of her pain. (R. 54.) If anything, Ms. Arch's work at the fair suggests that she was not able to sustain even part-time work. Ms. Arch's daily activities and part-time work, at least without more information, do not substantiate the ALJ's finding that Ms. Arch's pain was stable and well-controlled.
6. The ALJ Failed To Afford Any Weight To Both Dr. Hosain's December 2016 Opinion And His December 20, 2017 Opinion
The ALJ erred by failing to assign any weight to Dr. Hosain's December 2016 and December 2017 Opinions. In both opinions, Dr. Hosain assessed Ms. Arch's functional capacity. The December 2016 Opinion found that Ms. Arch was unable to meet the requirements of sedentary work due to her restricted neck range of motion and tenderness of neck muscles. (R. 425-27.) The December 2017 Opinion found that due to her persistent pain and a limited range of motion, Ms. Arch was limited to sitting for no more than 30-45 minutes, standing for 20 minutes, and lifting, pushing, or pulling no more than 5-10 pounds of weight before her pain became severe. (R. 827.) The ALJ's failure to even acknowledge those two treating physician opinions constitutes error that warrants remand. See Cichocki v. Astrue, 534 Fed.Appx. 71, 75 (2d Cir. 2013) (“The ALJ is required to consider all available evidence, including … the claimant's treating or nontreating source”); Corporan v. Commissioner Of Social Security, No. 12-CV-6704, 2015 WL 321832, at *5 (S.D.N.Y. Jan. 23, 2015) (“Even if [the doctor] is not considered a treating source, it was an error for the ALJ to omit any mention of his examination in his decision”).
Dr. Hosain's 2016 opinion was issued in connection with a workers' compensation claim, but because workers' compensation and social security disability benefits are governed by different standards, “‘the opinion provided in a workers' compensation claim is not controlling with respect to a claim of disability [ ] under the Act.'” Lopez v. Berryhill, 448 F.Supp.3d 328, 345 (S.D.N.Y. 2020) (internal alteration omitted) (quoting Urbanak v. Berryhill, No. 17-CV-5515, 2018 WL 3750513, at *24 (S.D.N.Y. July 18, 2018)). For that same reason, ALJs often properly afford little weight to opinions provided for workers' compensation purposes. See, e.g., Perozzi v. Berryhill, 287 F.Supp.3d 471, 492 (S.D.N.Y. 2018) (ALJ did not err in giving a doctor's opinion little weight because of both the doctor's role in claimant's workers' compensation case and the ALJ's additional note that the definition of disability in a workers' compensation case is not the same as under the act). This does not mean, however, that the opinion, even if for workers' compensation, issued by a treating source may be ignored altogether. See Id. (an ALJ may not reject a treating source's opinion solely because it was created for a workers' compensation claim); Mercado v. Colvin, No. 15-CV-2283, 2016 WL 3866587, at *15 (S.D.N.Y. July 13, 2016) (a doctor's role in a plaintiff's workers' compensation case “is a legally insufficient reason to categorically disregard a treating physician's opinion”).
The Commissioner alleges that this error was harmless because Dr. Hosain's December 2016 Opinion is substantially similar to Dr. Hosain's January 2019 Opinion, which the ALJ did weigh. In both opinions, Dr. Hosain concluded that Ms. Arch is capable of performing less than sedentary work. The Commissioner argues that “the reasons articulated by the ALJ for giving little weight to the January 2019 opinion … also apply to the December 2016 opinion.” (Def. Mem. at 22.) But neither the record nor the ALJ's decision, by failing to even mention the December 2016 Opinion, elucidate why that would be so. Indeed, the consistency of the opinions, along with Dr. Hosain's December 2017 Opinion, over the period of more than two years, arguably demonstrates their reliability. See 20 C.F.R. § 404.1527(c)(2)(i) (“the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion”).
An ALJ's failure to discuss a medical opinion is harmless where the overlooked opinion is not “significantly more favorable to Petitioner, ” creating no “reasonable likelihood that [the ALJ's] consideration of the [opinion] would have changed the ALJ's determination that Petitioner was not disabled.” Zabala, 595 F.3d at 409; see also McKinstry v. Astrue, 511 Fed.Appx. 110, 111-12 (2d Cir. 2013) (same). But here, Dr. Hosain's earlier opinions are “significantly more favorable” to Ms. Arch because they provide evidence of Ms. Arch's ongoing pain throughout the relevant period, which contradicts the ALJ's finding that “the claimant's statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (R. 17.) See Snell, 177 F.3d at 133-34 (remanding because of failure to consider an opinion favorable to the claimant).
The ALJ did not cite the “duplicative” nature of Dr. Hossain's 2016 and 2017 opinions as a reason for not affording them weight. Instead, the ALJ simply failed to address them, and the Commissioner may not offer a “‘post hoc rationalization'” for the agency's action. Newbury v. Astrue, 321 Fed.Appx. 16, 18 (2d Cir. 2009) (quoting Snell, 177 F.3d at 134).
In sum, the ALJ erred in his consideration - and lack of consideration - of the opinions of Ms. Arch's treating physician. Remand is merited so that the ALJ can be given the chance to do so properly.
B. The ALJ's Consideration Of Ms. Arch's Severe Headaches In His RFC Assessment
Ms. Arch contends that the ALJ's RFC assessment is flawed because the ALJ did not meaningfully discuss Ms. Arch's cervicogenic headaches nor provide any limitations in his RFC assessment to accommodate for Ms. Arch's pain due to her headaches. (Pl. Mem. at. 17-18 (referring to R. 12-13, 20).) The Court disagrees with this aspect of Ms. Arch's challenge to the ALJ's decision.
The ALJ's RFC assessment cites to both Ms. Arch's own testimony and medical facts in the record regarding her headaches. Specifically, the ALJ discussed Ms. Arch's testimony in which she noted the frequency, source, and effects of her headaches. (R. 17 (referring to R. 45-46).) The ALJ also cited to Ms. Arch's self-report in which she mentioned that her symptoms - including her headaches - cause “difficulty paying attention, finishing what she starts, getting along with others and handling stress or changes in schedule.” (R. 17 (referring to R. 223-35.) And the ALJ cited Dr. Faskowitz's diagnosis of Ms. Arch's headaches. (R. 18 (referring to R. 338-44).)
Ms. Arch argues that the ALJ's determination of her RFC should have included limitations to account for being “off task when a headache occurs or some allowance for loss of concentration due to a headache.” (Pl. Mem. at 18.) The ALJ's decision, however, demonstrates that he did account for such limitations. In his RFC assessment, the ALJ expressly addressed particular limitations related to Ms. Arch's headaches. For example, he specifically accounted for distractibility attributed to Ms. Arch's severe impairments, which include her headaches:
[Ms. Arch] can never work around hazardous machinery and unprotected heights. The combined effects of the claimant's physical and mental impairments and side effects from her medications are the cause of these limitations. In anticipation of distractibility from pain from her severe physical impairments and general distractibility from her mental impairments as well as dizziness side effects from her medications, this limitation was given to avoid subjecting the claimant or others to the risk of bodily injury due to the claimant's distractibility.(R. 20.) Similarly, to account for Ms. Arch's inability to pay attention and get along with others, to the extent they are caused by Ms. Arch's headaches, the ALJ limited Ms. Arch to simple and routine tasks and occasional interaction with others. (R. 20.) See McIntyre v. Colvin, 758 F.3d 146, 152 (2d Cir. 2014) (ALJ's limitation to “simple, routine tasks” to assist the Plaintiff in concentration and performance was proper); Villalobo v. Saul, No. 19-CV-11560, 2021 WL 830034, at *16 (S.D.N.Y. Feb. 9, 2021) (same), R. & R. adopted, No. 19-CV-11560, Dkt. 19 (S.D.N.Y. Feb. 25, 2021).
Ms. Arch bears the burden to show that an additional limitation, as a result of Ms. Arch's headaches, was warranted. See Selian, 708 F.3d at 418. Ms. Arch has not satisfied her burden. She simply cites to the same evidence the ALJ noted in his opinion pertaining to this particular impairment. (Pl. Mem. at 17-18.) The ALJ supported his determination with evidence in the record, namely physician findings of Ms. Arch's intact memory and concentration, as well as Ms. Arch's own testimony in which she stated her ability to drive, read, work a seasonal job, and interact with friends and family, which provides further evidence of Ms. Arch's ability to concentrate. (R. 15, 21 (referring to R. at 42-43, 223-235); see also R. 817, 819, 822, 823, 824.) Ms. Arch has not cited to any additional evidence in the record suggesting that the ALJ erred in his consideration of Ms. Arch's headaches. The ALJ's determination in this respect thus was supported by substantial evidence.
All that said, on remand, the ALJ will have to reconsider Ms. Arch's RFC anew in re-evaluating the opinion evidence.
CONCLUSION
For the reasons stated above, pursuant to sentence four of 42 U.S.C. § 405(g), Ms. Arch's motion should be GRANTED, the Commissioner's motion should be DENIED, and the case should be remanded for determination consistent with the foregoing discussion.
PROCEDURES FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules Of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report And Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Vernon S. Broderick, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN WAIVER OF OBJECTIONS AND PRECLUDE APPELLATE REVIEW.