Opinion
1:21-cv-01341-MKV-GRJ
07-04-2022
WAYNE KENNETH R., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES, United States Magistrate Judge:
In January of 2018, Plaintiff Wayne Kenneth R. applied for Supplemental Security Income Benefits and Disability Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the applications. Plaintiff, represented by the New York County Lawyers Association, Puja Khare, Esq., of counsel, commenced this action seeking judicial review of the Commissioner's denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
Plaintiff's name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
This case was referred to the undersigned for a report and recommendation on May 2, 2022. Presently pending is the Commissioner's Motion for Judgment on the Pleadings under Rule 12 (c) of 1 the Federal Rules of Civil Procedure. (Docket No. 15). For the following reasons, it is recommended that the Commissioner's motion should be granted.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on January 12, 2018, alleging disability beginning September 1, 2016. (T at 120-32). Plaintiff's applications were denied initially and on reconsideration. He requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on January 8, 2020, before ALJ Denise M. Martin. (T at 30). Plaintiff appeared pro se and testified. (T at 33-49). The ALJ also received testimony from Ronald Malik, a vocational expert. (T at 49-52).
Citations to “T” refer to the administrative record transcript at Docket No. 12.
B. ALJ's Decision
On June 3, 2020, the ALJ issued a decision denying the applications for benefits. (T at 7-25). The ALJ found that Plaintiff engaged in substantial gainful activity between September 1, 2016 (the alleged onset date) and December 31, 2017. (T at 14). However, because there had been a continuous 12-month period during which Plaintiff did not engage in substantial gainful activity, the ALJ continued with the sequential analysis. 2 (T at 14). The ALJ determined that Plaintiff meets the insured status requirements under the Social Security Act through December 31, 2022. (T at 14).
The ALJ concluded that Plaintiff's degenerative disc disease of the cervical spine; ulnar nerve entrapment; obesity; affective disorder; and anxiety disorder were severe impairments as defined under the Social Security Act. (T at 14). The ALJ then found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 403, Subpart P, Appendix 1. (T at 15).
At step four of the sequential analysis the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform light work, as defined in 20 CFR 404.1567 (b) and 416.967 (b), with the following limitations: he can never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs; occasionally balance, stoop, kneel, crouch, and crawl; he can perform frequent (but not repetitive) handling and fingering; perform unskilled, simple, routine, repetitive jobs with no more than occasional interaction with supervisors, co-workers, and the public; and perform work with no fast pace or high production quotas. (T at 17). 3
The ALJ concluded that Plaintiff could not perform his past relevant work as a server/waiter. (T at 22). However, considering Plaintiff's age (34 on the alleged onset date), education (at least high school, able to communicate in English), work experience, and RFC, the ALJ determined that there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 22-23). As such, the ALJ found that Plaintiff had not been under a disability, as defined under the Social Security Act, and was not entitled to benefits for the period between September 1, 2016 (the alleged onset date) and June 3, 2020 (the date of the ALJ's decision). (T at 23-24).
On January 29, 2021, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. (T at 1-5).
C. Procedural History
Plaintiff commenced this action by filing a Complaint on February 16, 2021. (Docket No. 2). The Commissioner filed a motion for judgment on the pleadings, supported by a memorandum of law, on October 4, 2021. (Docket No. 15, 16). Plaintiff filed an opposing memorandum of law on March 7, 2022. (Docket No. 23). On March 30, 2022, the Commissioner submitted a reply memorandum of law in further support of her motion. 4 (Docket No. 26). The matter was assigned to the undersigned for a report and recommendation on May 2, 2022.
II. APPLICABLE LAW
A. Standard of Review
“It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). The court's review is limited to “determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings, which are considered conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which 5 conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted).
“When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or when the ALJ's rationale is unclear, remand “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. Five-Step Sequential Evaluation Process
Under the Social Security Act, a claimant is disabled if he or she lacks the ability “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 eligibility for disability benefits is evaluated pursuant to a five-step sequential analysis:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities.6
3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform.See Rolon v. Commissioner of Soc. Sec., 994 F.Supp.2d 496, 503 (S.D.N.Y. 2014); see also 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
The claimant bears the burden of proof as to the first four steps; the burden shifts to the Commissioner at step five. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner determines whether the claimant can perform work that exists in significant numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).
III. DISCUSSION
Plaintiff raises three main arguments in support of his challenge to the ALJ's decision. First, he contends that the ALJ failed to adequately 7 develop the record. Second, Plaintiff asserts that the ALJ's RFC determination is based on “cherry-picked” evidence. Third, Plaintiff argues that a remand is required due to the potential for new evidence. The Court will address each argument in turn.
A. Duty to Develop the Record
Social Security proceedings are non-adversarial and the ALJ is obliged “to investigate the facts and develop the arguments both for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 111, 147 L.Ed.2d 80, 120 S.Ct. 2080 (2000) (citation omitted). The ALJ's duty to develop the record has been described as a “bedrock principle of Social Security law.” Batista v. Barnhart, 326 F.Supp.2d 345, 353 (E.D.N.Y. 2004)(citing Brown v. Apfel, 174 F.3d 59 (2d Cir.1999)).
The ALJ's duty to develop the record includes the duty to obtain the claimant's medical records and to question the claimant about his or her subjective complaints. See, e.g., Cruz v. Sullivan, 912 F.2d 8, 11-12 (2d Cir. 1990); Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755-56 (2d Cir. 1982).
“Proper application” of the rule requiring the ALJ to develop the record “ensures that the claimant's record is comprehensive, including all relevant treating physician diagnoses and opinions, and requires the ALJ to 8 explain clearly how these opinions relate to the final determination. In this circuit, the rule is robust.” Santiago v. Comm'r of Soc. Sec., No. 13-CV-3951(LTS)(SN), 2014 U.S. Dist. LEXIS 96984, 2014 WL 3819304, at *16 (S.D.N.Y. Aug. 4, 2014) (citing Schaal v. Apfel, 134 F.3d 496, 503-05 (2d Cir. 1998)).
In the present case, Plaintiff was proceeding pro se at the administrative level, which “heightened” the ALJ's duty. Cruz v. Sullivan, 912 F.3d 8, 11 (2d Cir.1990); accord Echevarria v. Sec'y of Health and Human Servs., 685 F.2d 751, 755 (2d Cir.1982). Consequently, the ALJ is required “to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.” Cruz, 912 F.3d at 11 (internal quotation marks omitted). On review, this Court undertakes a “searching investigation of the record” to ensure that the claimant received “a full hearing under the [Commissioner's] regulations and in accordance with the beneficent purposes of the [Social Security] Act.” Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir.1980) (internal quotation marks omitted).
This Court concludes that the ALJ satisfied her heightened duty to ensure adequate development of the record. The record includes a consultative psychiatric evaluation, State Agency review physician opinions, and extensive treatment notes from medical and mental health 9 providers. The ALJ engaged in a careful review of the record, provided a detailed discussion of the evidence, and articulated a thorough explanation for her conclusions. (T at 14-22).
Plaintiff argues that the ALJ did not adequately explore the question of foot pain. During the administrative hearing, Plaintiff testified that he began experiencing foot pain two to three months prior to the hearing. (T at 44). He visited a podiatrist “but the x-rays didn't show anything,” so it was recommended that he change shoes. (T at 44). Plaintiff tried multiple shoes, but found no relief, so he was seeking a second opinion. (T at 44). The ALJ did not obtain the records from Plaintiff's visit to the podiatrist and thus, Plaintiff argues, the record was not adequately developed.
Notably, however, “an ALJ is not required to attempt to obtain additional evidence to fill any gap in the medical evidence; rather an ALJ is required to do so only where the facts of the particular case suggest that further development is necessary to evaluate the claimant's condition fairly.” Francisco v. Comm'r of Soc. Sec., No. 13CV1486 TPG DF, 2015 WL 5316353, at *11 (S.D.N.Y. Sept. 11, 2015)(emphasis in original); see also Sampson v. Saul, No. 19CIV6270PAESN, 2020 WL 6130568, at *6 (S.D.N.Y. Oct. 16, 2020). 10
Plaintiff received his medical treatment at New York Presbyterian and the record already contains several years of records documenting his subjective reports, clinical examinations, imaging studies, diagnoses, and treatment. Plaintiff testified that the x-rays obtained during his visit to the podiatrist did not disclose any impairment and resulted in nothing more significant than a recommendation to change shoes. Plaintiff points to no other evidence of a foot impairment and there is no evidence that he sought the second opinion he referenced in his testimony. See Johnson v. Comm'r of Soc. Sec., No. 17-CV-5598 (BCM), 2018 WL 3650162, at *14 (S.D.N.Y. July 31, 2018)(The “ALJ does not have any obligation to obtain missing records merely because of a ‘theoretical possibility' that such records exist.”), aff'd sub nom. Johnson v. Comm'r of Soc. Sec. Admin., 776 Fed.Appx. 744 (2d Cir. 2019).
Given the ALJ's careful consideration of the overall evidence, the Court has no trouble concluding that there is no reversible error based on the absence of the podiatrist's notes from the record. See Dutcher v. Astrue, 2011 WL 1097860, at *5 (N.D.N.Y. Mar. 7, 2011) (“Plaintiff cannot simply identify arguable gaps in the administrative record and claim that these gaps are a per se basis for remand.”); Curley v. Comm'r of Soc. Sec. Admin., 808 Fed.Appx. 41, 44 (2d Cir. 2020)(“Moreover, although he asserts 11 that these records are critical, Curley did not provide them to the district court and does not describe their contents.”); see also Morris v. Berryhill, 721 Fed.Appx. 25, 27-28 (2d Cir. 2018).
Plaintiff also argues that the ALJ did not adequately develop the record concerning his complaints of hand numbness. Plaintiff testified that “numbness in [his] hands comes and goes throughout the day.” (T at 37). He points to treatment notes documenting complaints of hand numbness. (T at 358, 455).
Plaintiff suggests the ALJ should have asked him more questions about his symptoms during the administrative hearing. The ALJ, however, questioned Plaintiff extensively about his subjective complaints, work history, activities of daily living, work-related limitations, diagnostic tests, and course of treatment. (T at 33-49). The ALJ invited Plaintiff to tell her “why you feel you're unable to work at this time ...” (T at 36). The ALJ asked extensive follow-up questions throughout Plaintiff's testimony, including numerous inquiries specifically related to Plaintiff's complaints of hand numbness. (T at 38-39). Plaintiff does not point to any specific testimony he might have offered if asked different/additional questions. Moreover, the ALJ's RFC determination includes a limitation against 12 repetitive handling and fingering (T at 17), which accounts for the evidence of impairment related to Plaintiff's hands.
This Court, therefore, finds no error in the ALJ's consideration of Plaintiff's complaints of hand numbness. See Johnson, 2018 WL 3650162, at *14; see also Firpo v. Chater, 100 F.3d 943 (2d Cir. 1996)(“[O]ur examination of the hearing transcript convinces us that the ALJ fulfilled his ‘heightened duty to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'”)(citations omitted).
B. RFC
A claimant's “residual functional capacity” (“RFC”) is his or her “maximum remaining ability to do sustained work activities in an ordinary work setting on a continuing basis.” Melville, 198 F.3d at 52 (quoting SSR 96-8p). When assessing a claimant's RFC, an ALJ must consider medical opinions regarding the claimant's functioning and make a determination based on an assessment of the record as a whole. See 20 C.F.R. §§ 404.1527(d)(2), 416.9527(d)(2) (“Although we consider opinions from medical sources on issues such as ...your residual functional capacity...the final responsibility for deciding these issues is reserved to the Commissioner.”). 13
An ALJ's decision will be remanded if “it ignores or mischaracterizes medical evidence or cherry-picks evidence that supports his RFC determination while ignoring other evidence to the contrary.” Jackson v. Kijakazi, No. 20-CV-7476 (JLC), 2022 WL 620046, at *18 (S.D.N.Y. Mar. 3, 2022)(collecting cases).
Here, the ALJ determined that Plaintiff retained the RFC to perform light work, as defined in 20 CFR 404.1567 (b) and 416.967 (b), with the following limitations: he can never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs; occasionally balance, stoop, kneel, crouch, and crawl; he can perform frequent (but not repetitive) handling and fingering; perform unskilled, simple, routine, repetitive jobs with no more than occasional interaction with supervisors, co-workers, and the public; and perform work with no fast pace or high production quotas. (T at 17).
Plaintiff cites three instances of alleged “cherry-picking” by the ALJ, which he argues undermine the RFC determination.
First, Plaintiff contends that the ALJ erred by finding his HIV to be a non-severe impairment because such a conclusion ignores evidence that Plaintiff's HIV diagnosis caused him anxiety. Plaintiff does not contest the conclusion that his HIV is a non-severe impairment but suggests the ALJ did not adequately account for his HIV-related anxiety. This argument is 14 unavailing. The ALJ recognized that Plaintiff had anxiety disorder and found it to be a severe impairment. (T at 14). The record was well-developed regarding Plaintiff's anxiety and other mental health impairments, including a consultative psychiatric examination. And the ALJ incorporated anxiety-related limitations into the RFC by finding Plaintiff limited to “simple, routine, repetitive jobs” with no more than “occasional interaction with supervisors, co-workers, and the public,” and involving “no fast pace or high production quotas.” (T at 17).
Second, Plaintiff contends the ALJ ignored evidence of interpersonal problems when assessing his limitations related to social interaction. The ALJ, however, specifically addressed and accounted for the evidence of Plaintiff's interpersonal problems (including estrangement from his family) and reached the conclusion that Plaintiff had moderate limitation in social interactions. (T at 16, 20-22). The ALJ's conclusion was supported by a reasonable reading of the record and by the assessment of Dr. Erica King-Toler, who performed a consultative psychiatric evaluation in March of 2018. Dr. King-Toler described Plaintiff as cooperative, appropriate, and anxious. (T at 326). She assessed moderate limitation in Plaintiff's ability to interact with supervisors, co-workers, and the public. (T at 327). The ALJ appropriately accounted for Plaintiff's interpersonal challenges by 15 limiting him to work involving no more than “occasional interaction with supervisors, co-workers, and the public....” (T at 17).
Lastly, Plaintiff asserts that the ALJ placed undue weight on reports of improvement in his mental health and, thus, did not adequately account for the persistence of his problems. This argument misconstrues the ALJ's decision. Although the record does document, and the ALJ did note, an overall trend of improvement in Plaintiff's functioning with medication and treatment, the ALJ nevertheless recognized that Plaintiff remained limited in his ability to perform the mental demands of basic work activity (including limitations on social interaction and dealing with the stress of fast-paced/quota-driven work) and incorporated those limitations into the RFC. (T at 17, 20-22).
In sum, Plaintiff's reference to conflicting evidence and Plaintiff's alternative, more restrictive, reading of the record does not support his argument that the ALJ's decision was based upon “cherry-picked” evidence. Importantly, it is the role of the Commissioner, and not this Court, to review the record, weigh the evidence, and resolve conflicts therein. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir.2002)(“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”). Moreover, substantial evidence is “a very deferential standard of review - 16 even more so than the ‘clearly erroneous' standard." Brault v. SSA, 683 F.3d 443, 447-48 (2d Cir. 2012) (per curiam) (citation omitted). “The substantial evidence standard means once an ALJ finds facts, [a court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Id. at 448 (emphasis in original) (citation and internal quotation marks omitted).
“If the reviewing court finds substantial evidence to support the Commissioner's final decision, that decision must be upheld, even if substantial evidence supporting the claimant's position also exists.” Id. (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)); see also McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld.”)(citation omitted).
Here, for the reasons discussed above the Court concludes that the ALJ did not “cherry-pick” the record, but reached an RFC determination supported by substantial evidence.
C. Potential for New Evidence
The record does not contain a functional assessment from a treating provider. The administrative hearing was held in January of 2020 and the ALJ's decision was issued in June of 2020, with the outbreak of the 17 COVID-19 pandemic (and concomitant limitations on “non-essential” medical visits) intervening. Plaintiff contends that a remand is required to allow him to supplement the record with additional evidence, including functional assessments from treating providers.
The absence of a medical source statement from a treating physician does not require remand where “the record contains sufficient evidence from which an ALJ can assess the petitioner's residual functional capacity.” Tankisi v. Comm'r of Soc. Sec., 521 Fed.Appx. 29, 33-34 (2d Cir.2013); see also Pellam v. Astrue, 508 Fed.Appx. 87, 90-91 (2d Cir. 2013); Rosa v. Callahan, 168 F.3d 72, 79 n. 5 (2d Cir.1999) (“[W]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 .... “ (quoting Perez v. Chater, 77 F.3d 41, 48 (2d Cir.1996)); Prince v. Colvin, No. 13 CIV. 7666 TPG, 2015 WL 1408411, at *17 (S.D.N.Y. Mar. 27, 2015).
In the present case, as discussed above, the record contains extensive treatment records spanning several years including clinical examination findings, imaging studies, and treatment notes, along with opinions from a consultative examiner and State Agency review physicians. The record also contained evidence of Plaintiff's activities, including the 18 ability to live alone, attend to household chores and shopping, connect with others through social media, and engage in work activity (albeit below the level of substantial gainful activity). (T at 19). The ALJ engaged in careful consideration of the record, provided a detailed explanation of her reasoning, and reached a conclusion supported by the evidence. This is sufficient under the deferential standard of review applicable here.
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Commissioner's Motion for Judgment on the Pleadings (Docket No. 15) should be GRANTED; and this case should be dismissed. 19
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). 20