Santiago v. Comm'r of Soc. Sec.

Full title: TERESA PANTOJA SANTIAGO, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY…

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Jul 23, 2019

18-CV-1226 (KPF) (BCM) (S.D.N.Y. Jul. 23, 2019)

Opinion

18-CV-1226 (KPF) (BCM)

07-23-2019

TERESA PANTOJA SANTIAGO, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

BARBARA MOSES, United States Magistrate Judge.

REPORT AND RECOMMENDATION TO THE HON. KATHERINE POLK FAILLA

BARBARA MOSES, United States Magistrate Judge.

Plaintiff Teresa Pantoja Santiago filed this action pursuant to §§ 205(g) and 1631(c)(3) of the Social Security Act (the Act), 42 U.S.C. §§ 405(g), 1383(c)(3), seeking judicial review of a final determination of the Commissioner of Social Security (the Commissioner) denying her application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). Now before the Court for report and recommendation are the parties' cross-motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons that follow, I respectfully recommend that plaintiff's motion be granted, that the Commissioner's motion be denied, and that this case be remanded to the Commissioner for further proceedings.

I. BACKGROUND

A. Procedural Background

Plaintiff filed applications for SSI and DIB on June 2, 2014, alleging disability since March 31, 2013, due to depression, anxiety, and arthritis. See Certified Administrative Record (Dkt. Nos. 11, 15-1) (hereinafter "R. ___") at 253-65, 287. The SSA denied those applications on August 7, 2014. (R. 149-56.) On August 12, 2014, plaintiff requested a hearing before an Administrative Law Judge (ALJ). (R. 147-48.) She appeared before ALJ Seth I. Grossman, with counsel, on March 16 and November 22, 2016. (R. 63, 99.)

In a written decision dated February 15, 2017 (Decision), ALJ Grossman determined that plaintiff was not disabled within the meaning of the Act. (R. 893.) On February 20, 2017, plaintiff requested Appeals Council review. (R. 252.) The Appeals Council denied that request on December 13, 2017 (R. 1-8), making the ALJ's determination final.

B. Personal Background

Plaintiff was born on October 24, 1958, making her 54 years old on the alleged onset date. (R. 282.) She attended school in Puerto Rico until the seventh grade, and can read in Spanish. (R. 34, 86, 288.) She moved to the mainland United States in 1990. (R. 102.) She cannot speak, read, or understand English. (R. 286.) From approximately 1999 to 2006 she worked as home health aide, and from 2006 to 2013 she worked as a part-time babysitter for a relative. (R. 83, 288, 302.) As a home health aide, plaintiff cleaned her clients' apartments, helped them bathe, took them to appointments, and lifted some clients from bed to chair. (R. 95, 309.) As a babysitter, she took care of a child five days per week. (R. 301.) In her June 16, 2014 Work History Report, plaintiff wrote that neither job required her to lift or carry more than 10 pounds. (R. 301, 309.)

In her Function Report, also dated June 16, 2014, plaintiff stated that she lived alone. (R. 305.) On an average day, if she had no appointments, she would drink coffee, eat breakfast, go back to her room, "and just look out the window for hours." (R. 306.) She reported that she went shopping for food once a month and was able to cook, clean, and wash clothes when she was not depressed. (R. 297, 303.) "[W]hen I'm depressed," however, "I don't do anything." (R. 303.) Plaintiff had no driver's license, but was able to travel alone using public transportation. (Id.)

Plaintiff reported that because of her medical condition she could not "lift anything heavy"; could not stand for "to[o] much" before her legs and back started to hurt; could sit for only "about 20 min" before her back started to hurt; had knee pain while climbing stairs or kneeling; had arm pain when reaching "for to[o] long"; and had to stop for rest after walking five blocks. (R. 298-300.) Plaintiff wrote that she had no problems paying attention, finishing what she started, or getting along with people in authority. (R. 300.) However, stress or changes in her schedule caused her to "cancel all my appointments and stay home and cry." (R. 295.)

II. PLAINTIFF'S MEDICAL HISTORY

A. Treatment Records Concerning Plaintiff's Physical Condition

1. Dr. Cordero

Plaintiff saw family practitioner Evelyn Cordero, M.D. for medical care between 2011 and 2015. (R. 346, 685, 687.) On November 8, 2012, plaintiff visited Dr. Cordero complaining of back pain, and obtained a referral for a cervical spine X-ray and a prescription for Tramadol. (R. 686.)¹ During her annual physical with Dr. Cordero on November 13, 2012, Dr. Cordero diagnosed plaintiff with high cholesterol and thoracic spondylosis. (R. 684.)²

1 Tramadol is an opioid analgesic that is used as a treatment for "moderate to moderately severe pain." RxList, "Tramodol," https://www.rxlist.com/consumer_tramadol/drugs-condition.htm (last visited July 23, 2019).

2 Thoracic spondylosis refers to degenerative changes ("such as bone spurs and degenerating intervertebral discs") in the upper or mid-back. Emedicinehealth, "Spondylosis," https://www.emedicinehealth.com/spondylosis/article_em.htm (last visited July 23, 2019). Spondylosis is common, particularly with age. "Over 80% of people over the age of 40 have evidence of spondylosis on X-ray studies." Id. However, thoracic spondylosis "frequently does not cause symptoms." Id.

On April 15, 2013, Dr. Cordero completed a Puerto Rican Family Institute, Inc. (PRFI) Physical Examination Form about plaintiff. (R. 683.) Dr. Cordero wrote that plaintiff had an acute health problem of high cholesterol and a chronic health problem of "major depressive disorder/insomnia." (Id.) On August 22, 2013, plaintiff saw Dr. Cordero for hives, "after working in garden." (R. 677.) On March 17, 2014, after another physical examination, Dr. Cordero reported no acute distress and a normal range of motion (ROM) for plaintiff's neck, spine, ribs, pelvis, and upper and lower extremities. (R. 673.) Plaintiff had a normal gait, stability, and station. (Id.)

On March 21, 2014, Dr. Cordero completed another PRFI Physical Examination Form for plaintiff, listing an acute health problem of high cholesterol, no chronic health problems, and no medications. (R. 670.) Under "Diagnosis and Plan," Dr. Cordero wrote only "well 55 yrs." (R. 671.) Plaintiff's pharmacy records (which go back to March 2013) show that in 2014 and 2015, Dr. Cordero prescribed Naproxen,³ as well as cholesterol, osteoporosis, and allergy medications, but no additional Tramadol or other narcotics. (R. 335, 337, 343.)

3 Naproxen (Naprosyn) is a non-steroidal anti-inflammatory drug (NSAID) indicated for the relief of the signs and symptoms of rheumatoid arthritis, osteoarthritis, ankylosing spondylitis, and for the management of pain, among other conditions. "Naproxyn," RxList, https://www.rxlist.com/naprosyn-drug.htm (last visited July 23, 2019).

2. Parkchester Medical Services of New York

From March 26, 2013 to June 1, 2015, plaintiff received physical therapy at Parkchester Medical Services of New York. During her first appointment, plaintiff reported neck pain radiating down her left arm and hand. (R. 491.) She said the pain had lasted six months, on and off, and was aggravated by lifting, turning, twisting, and arm movements. (Id.)

Plaintiff's pain improved over time. On April 16, 2013, she reported a decrease in her left shoulder pain. (R. 481.) On April 30, 2013, she reported that she still had that pain but that it was getting better. (R. 473.) On May 8, 2013, plaintiff again reported a decrease in left shoulder pain and no radicular pain. (R. 469.)

Plaintiff resumed physical therapy at Parkchester on September 30, 2014 (after she applied for benefits), this time to treat low back pain. (R. 388.) At that appointment, plaintiff reported that her back "was bothering her for almost a year already"; that she could not tolerate sitting and standing "for a long period of time"; and that she had difficulty walking long distances and lifting heavy objects. (Id.)

As with her shoulder pain, plaintiff's lower back pain appears to have improved over time. On October 24, 2014, plaintiff reported that her lower back "feels better." (R. 457.) She continued to report decreased pain on October 29, November 28, and December 26, 2014. (R. 362, 376, 430.) Similarly, on May 6 and 19, 2015, plaintiff reported decreased pain in her neck and lower back. (R. 404, 398.) On May 25, 2015, she stated that her neck and back "still hurt[] but not as bad as before." (R. 392.) The last physical therapy treatment note in plaintiff's record, dated June 1, 2015, states that her neck and lower back pain were "much better" and that she was "walking better and moving with less pain." (R. 390.)

3. Diagnostic Testing

A November 8, 2012 X-ray of plaintiff's spine (on referral from Dr. Cordero) revealed thoracic spondylosis, "especially affecting the mid and lower thoracic disc spaces and endplates," but "normal bone density," no "evidence for spondylolisthesis," and no "focal lesion." (R. 651.) A July 3, 2014 bone density test revealed osteoporosis (decreased bone density) in plaintiff's lumbar spine and "borderline osteopenia" (slightly decreased bone density) in the left hip. (R. 653.) A September 10, 2014 MRI of plaintiff's lumbar spine revealed "mild" multilevel disk and facet degeneration, "left foraminal narrowing with mass upon LS, and impingement upon the descending left S1 nerve root." (R. 761-62.) The radiologist reported a "clinical indication" of "back pain, lumbar, with radiculopathy." (R. 761.)

B. Treatment Records Concerning Plaintiff's Mental Condition ⁴

4 In addition to the records summarized here, the administrative record includes mental health treatment notes pre-dating plaintiff's alleged onset date of March 31, 2013, including records of a psychiatric hospitalization in December 2010 and a brief psychiatric emergency room visit on December 20, 2012, which ended with a referral to outpatient therapy. (R. 729-47.) This Report and Recommendation focuses on the medical records from the alleged disability period, i.e., March 31, 2013 through the date of the ALJ's Decision.

1. Bronx Mental Health Clinic

Plaintiff received mental health treatment at the PRFI's Bronx Mental Health Clinic (Bronx Mental Health) between February 2014 and February 2016, seeing a variety of practitioners, including Zenia Blandon, L.C.S.W., for psychotherapy, and Flavia Robotti, M.D., for medication management. (R. 645-50, 764-878.)

On April 8, 2014, Dr. Robotti noted that plaintiff was "well dressed, well groomed, cooperative, friendly," and wrote that she "now prefers to stop Zyprexa due to expected metabolic side effects, continue on Zoloft and add Doxepin." (R. 771.)⁵ Plaintiff's speech was "relevant and coherent," and her cognition was intact. (Id.) On May 6, 2014, Dr. Robotti observed that plaintiff's mood was depressed and irritable but her speech was coherent, her affect appropriate, and her cognition intact. (R. 777.) Plaintiff was "well dressed' and "well related." (Id.) On June 3, 2014, plaintiff told Dr. Robotti that she was feeling less depressed about her brother's recent death, though she was anxious about her daughter's health. (R. 782.) Her mood was euthymic, her affect appropriate, and her cognition intact. (Id.) On July 8, 2014, plaintiff reported "no complaints" to Dr. Robotti, noting that her mood was stable and her anxiety was under control. (R. 788.) On August 5, 2014, plaintiff told Dr. Robotti, "I have been doing OK, only Ambien is not working for sleep and I don't want to continue taking it." (R. 792.) Plaintiff's mood was euthymic, her affect appropriate, and her cognition intact. (Id.) Dr. Robotti changed plaintiff's medication from Ambien to Trazodone. (Id.)⁶ On September 2, 2014, plaintiff stated that her mood was stable but she continued to have trouble sleeping. (R. 796.) Her speech was relevant and coherent and her cognition was intact. (Id.) Dr. Robotti once again adjusted plaintiff's medications, adding Remeron. (R. 797.)⁷

5 Zyprexa (olanzapine) is indicated for the treatment of schizophrenia or bipolar disorder. RxList, "Zyprexa," https://www.rxlist.com/zyprexa-drug.htm (last visited July 23, 2019). Zoloft (sertraline hcl) is indicated for the treatment of major depressive disorder and related psychological conditions. RxList, "Zoloft," https://www.rxlist.com/zoloft-drug.htm (last visited July 23, 2019). Sinequan (doxepin) is indicated for the treatment of depression, among other conditions. RxList, "Sinequan," https://www.rxlist.com/sinequan-drug.htm (last visited July 23, 2019).

6 Ambien (zolpidem tartrate) is indicated for the short-term treatment of insomnia. RxList, "Ambien," https://www.rxlist.com/ambien-drug.htm (last visited July 23, 2019). Desyrel (trazodone hydrochloride) is indicated for the treatment of major depressive disorder. RxList, "Desyrel," https://www.rxlist.com/desyrel-drug.htm (last visited July 23, 2019).

7 Remeron (mirtazapine) is indicated for the treatment of major depressive disorder. RxList, "Remeron," https://www.rxlist.com/remeron-drug.htm (last visited July 23, 2019).

On September 23, 2014, plaintiff saw psychiatrist Janet Taylor, M.D., who noted that she was drinking 8-10 cups of coffee per day and recommended that she cut "way back." (R. 800-01.) Plaintiff's mood was good, her affect was euthymic, and she was alert and oriented x3. (Id.) On October 21, 2014, plaintiff's only complaint was insomnia. (R. 805.) On November 18, 2014, (after Dr. Robotti once again adjusted her medications, adding Seroquel),⁸ plaintiff reported that her sleep was "finally adequate." (R. 811.) At both visits plaintiff was well-groomed, "pleasant," and "cooperative," with coherent speech and intact cognition. (R. 805, 811.)

8 Seroquel (quetiapine fumarate) is indicated for the treatment of schizophrenia. RxList, "Seroquel," https://www.rxlist.com/seroquel-drug.htm (last visited July 23, 2019).

On January 28, 2015, plaintiff told Dr. Robotti that she was doing well on "current rx" and wanted to "continue on the same." (R. 819.) On March 3, 2015, she had "no complaints." (R. 825.) On March 31 and May 5, 2015, plaintiff reported that she was once again having difficulty with insomnia (R. 831, 835), but by June 2, 2015, she was "doing well," with "good sleep," a euthymic mood, and a "more optimistic outlook" (R. 839), and on July 7, 2015, she had "no complaints." (R. 845.)

On August 1, 2015, plaintiff met with psychiatrist Eng Kock Chan Tan, M.D., who reported that she voiced "some depression" over "family and financial" issues. (R. 849.) Plaintiff's mood was slightly "tense and sad," but her speech was within normal limits and her affect was full. (Id.) Dr. Tan described plaintiff as "overweight" (though "neat"), and wrote that she "needs to do more exercises." (Id.) On March 3, 2016, Dr. Tan completed a Medical Source Statement About What the Claimant Can Still Do Despite Mental Impairment(s), discussed in greater detail below. (R. 748-52.)

Throughout this period, plaintiff visited the clinic regularly - usually twice a month - for therapy (in Spanish) with Ms. Blandon, whose progress notes consistently described plaintiff as prompt, alert, and oriented 3x, with an appropriate affect and a congruent mood. (R. 773-781.) On May 8, June 12, and July 3, 2014, plaintiff told Ms. Blandon that she was complying with her medication and that her sleep patterns had improved. (R. 779, 785, 787.) On September 18, 2014, plaintiff discussed her "irregular sleep patterns" with Ms. Blandon, as well as coping skills to manage stress. (R. 799.) On November 17, 2014, and for several sessions thereafter, plaintiff worked through the loss of one of her nieces, who died in an accident, as well as earlier deaths in the family. (R. 810, 813, 814, 817.) On January 29, 2015, plaintiff told Ms. Blandon that she was "not able to perform certain tasks" due to back pain, which made her feel stressed and depressed. (R. 821.) On May 28, 2015, plaintiff reported that she was "busy" and "sleeping much better." (R. 838.) On August 6, September 9, and September 30, 2015, plaintiff reported depressive symptoms, noting that she became especially prone to feelings of sadness as the holidays approached, and some difficulty sleeping. (R. 851, 853, 855.) On January 7, 2016, plaintiff stated that "she utilizes coping skills learned to ameliorate depressive associated symptoms" and "identified at least 2 or 3 coping skills." (R. 865.) On February 24, 2016, plaintiff presented as alert and oriented, but melancholic, and reported not sleeping well. (R. 871.) Plaintiff provided Ms. Blandon with "social security documentation to be completed including for Dr. to sign." (Id.)

2. Dr. Cordero

During her treatment of plaintiff's physical condition, Dr. Cordero also remarked from time to time on plaintiff's psychological condition. On April 9, 2013, Dr. Cordero diagnosed plaintiff with "[m]ajor depressive disorder, recurrent episode, unspecified degree." (R. 680.) On March 17, 2014, Dr. Cordero observed that plaintiff was alert and oriented to person, place, and time, that her mood and affect were appropriate for the situation, and that she had a normal attention span and concentration. (R. 673.)

C. Opinion Evidence Concerning Plaintiff's Physical Condition

1. Dr. Revan

On July 30, 2014, consultative internist Sharon Revan, M.D. performed an Internal Medicine Examination of plaintiff. (R. 661-64.) Dr. Revan noted that plaintiff had "a history of high cholesterol, arthritis, osteoporosis, lipoma, and depression." (R. 661.) Plaintiff told Dr. Revan that she had intermittent burning pain in her neck and back, which was worse with walking, bending, mopping, sitting, and laying down, but better with medicine and physical therapy. (Id.) She said that her pain was a 9 out of 10. (Id.)

Dr. Revan noted that plaintiff "cleans, does laundry, and shops" (R. 662), and observed that she "was in no acute distress," could walk on her toes (but said she could not walk on her heels), and did not need help changing for the exam or getting on and off the exam table. (Id.) An examination of plaintiff's cervical spine showed "full flexion, extension, internal flexion bilaterally, and full rotary movement bilaterally." (R. 663.) Lumbar spine flexion was "90 degrees with back pain." (Id.) Plaintiff had "full ROM (range of motion) of shoulders, elbows, forearms, and wrists bilaterally," and "[f]ull ROM of hips, knees, and ankles bilaterally." (Id.) Dr. Revan reported that plaintiff's joints were "stable and nontender," and observed no redness, heat, swelling, or effusion. (Id.) She noted no sensory deficit or muscle atrophy, and recorded 5/5 strength in the upper and lower extremities and in plaintiff's grip. (Id.)

Dr. Revan diagnosed high cholesterol, arthritis, osteoporosis, lipomas, and depression. (R. 663.) She concluded:

In my opinion, the claimant has no limitation with her speech, vision, or hearing. There is no limitation with the upper extremities for fine and gross motor activity. The claimant has back pain with sitting, lying, or walking. Limitation with climbing stairs due to shortness of breath and fatigue. No limitation with personal grooming or activities of daily living.

(R. 664.)

2. Dr. Ghazi

Orthopedic surgeon Darius Ghazi, M.D., who did not examine plaintiff personally, testified before the ALJ at the hearing on November 22, 2016. His testimony is addressed in § III(B), below.

D. Opinion Evidence Concerning Plaintiff's Mental Condition

1. Bronx Mental Health

On March 18, 2014, a physician at Bronx Mental Health completed a form entitled "Psychiatric Evaluation for Adults" concerning plaintiff (R. 645-49).⁹ Plaintiff's chief complaint was depression since her brother died "one month ago." (R. 645.) Plaintiff was observed to be "cooperative, but anxious," oriented 3x, with a "good" attention span. (R. 646.) The evaluating physician observed no thought disorder, fair intellectual functioning, insight, and judgment, and an "OK" memory. (R. 646-48.) Plaintiff had a GAF score of 60, with a highest past year GAF score of 65. (R. 649.)¹⁰

9 The ALJ does not attribute the March 18, 2014 Psychiatric Evaluation to any particular physician. (R. 895-901.) Neither do the parties. See Pl. Mem. (Dkt. No. 23) at 11; Def. Mem. (Dkt. No. 27) at 10. The cover page accompanying the evaluation states that it is provided by "Dr. Chan." More likely, however, the evaluation was completed by Dr. Robotti, whose March 18, 2014 individual progress note reflects that she saw plaintiff that day for a "pre-screening/initial eval" for "1h" and that a "Psychiatric Evaluation was completed." (R. 768.)

10 "GAF rates overall psychological functioning on a scale of 0-100 that takes into account psychological, social, and occupational functioning." Zabala v. Astrue, 595 F.3d 402, 405 n.1 (2d Cir. 2010) (citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, at 34 (4th ed. rev. 2000) ("DSM-IV")). A GAF score in the range of 51 to 60 indicates "moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)," while a GAF score in the range of 61 to 70 "indicates some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." Id. at 405 n.1, n.3 (quoting DSM-IV at 34) (quotation marks omitted). The Fifth Edition of the DSM discarded the use of GAF scores, id., and in 2013 the SSA issued a bulletin limiting the use of GAF scores in disability proceedings, noting that "there is no way to standardize measurement and evaluation." SSA, "Global Assessment of Functioning (GAF) Evidence in Disability Adjudication," AM-13066 (July 22, 2013), revised (Oct. 14, 2014). However, the Commissioner may still consider GAF scores as one factor among others. Mitchell v. Colvin, 2015 WL 5306208, at *12 (S.D.N.Y. Sept. 10, 2015).

2. Dr. Mahony

On July 30, 2014, consultative psychologist David Mahony, Ph.D. completed a Psychiatric Evaluation of plaintiff. (R. 657-60.) Plaintiff "traveled to the evaluation on her own by bus," but did not "know the time or distance that she traveled." (R. 657.) During her examination, which was conducted in Spanish, plaintiff reported that she had "symptoms of depression, including depressed mood, crying spells, social withdrawal." (Id.) On examination, plaintiff's thought processes were "[c]oherent and goal directed, with no evidence of hallucination, delusions, or paranoia in the evaluation setting." (R. 658.) Her affect was "[o]f full range and appropriate in speech and thought content," and her mood was "[e]uthymic." (Id.)

However, under "Attention and Concentration," Dr. Mahony wrote, "Impaired due to cognitive limitations. She was able to count. When asked to do simple calculations and serial 3s, she repeatedly asked that the questions be repeated and was not able to answer them." (R. 658.) Under "Recent and Remote Memory Skills," Dr. Mahony wrote: "Impaired due to cognitive limitations. The claimant was unable to recall any objects immediately or after five minutes. The claimant did 0 digits forward and 0 digits backward." (Id.) Dr. Mahony concluded that plaintiff's intellectual functioning was below average, and her insight poor, though her judgment was good. (R. 659.) He opined that she had "cognitive deficits secondary to lack of using cognitive skills" and "difficulty learning new material." (R. 657.)

Under "Mode of Living," Dr. Mahony recorded plaintiff's report that she was able to dress, bathe, and groom herself, and assist with household activities of daily living. (R. 659.) She socialized with friends and spent her time at home. (Id.) Dr. Mahony concluded:

There is no evidence of limitation in the claimant's ability to follow and understand simple directions and instructions and perform simple tasks independently. She has moderate difficulty with maintaining attention and concentration. No difficulty with maintaining a regular schedule. Moderate difficulty with learning new tasks, performing complex tasks, making appropriate decisions, relating to others, and dealing with stress. The claimant's difficulties are due to psychiatric symptoms.

The results of the evaluation are consistent with psychiatric and cognitive problems, and these will interfere with the claimant's ability to function on a daily basis.

(Id.)

Dr. Mahony diagnosed "[m]ajor depressive disorder, mild," and "[r]ule out history of learning disorder." (R. 659.) He recommended that plaintiff receive "vocational training," and he opined that she would not be able to manage funds "as she reports she is unable to do simple calculations." (R. 659-60.)

3. Dr. Kimberly Lieber-Diaz

On August 5, 2014, state agency medical consultant Kimberly Lieber-Diaz, Ph.D. analyzed plaintiff's file for the Disability Determination Explanation issued in connection with the SSA's initial denial of benefits. (R. 129-33.) She based her evaluation on her review of plaintiff's medical records before the alleged disability period; treatment records from Bronx Mental Health during the alleged disability period; the March 18, 2014 mental status exam from Bronx Mental Health; and the July 30, 2014 consultative examination report by Dr. Mahony. (R. 132-33.)

Dr. Lieber-Diaz concluded that plaintiff was "moderately" limited in her ability to understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; and set realistic goals or make plans independently of others. (R. 131-32.) However, she opined that plaintiff was "not significantly limited" in any of the various other tasks she considered. (Id.) Dr. Lieber-Diaz concluded that "[b]ased upon a review of the available" medical evidence of record, plaintiff was "capable of simple, unskilled work on a sustained basis." (R. 133.)

4. Dr. Tan

As noted above, Dr. Tan completed a Medical Source Statement about plaintiff on March 3, 2016. (R. 748-52.) Dr. Tan wrote that plaintiff had a GAF score of 65. (R. 768.) However, he also stated that her highest GAF in the past year was 60. (R. 768.) He checked boxes to report that plaintiff had a long list of symptoms, including poor memory, appetite disturbance, anhedonia, difficulty thinking or concentrating, social withdrawal or isolation, "blunt, flat, or inappropriate affect," intrusive recollection of a traumatic experience, hostility and irritability, and recurrent feelings of sadness and melancholy. (R. 748-49.) However, plaintiff did not experience any side effects of her medication and did not have a low I.Q. or reduced intellectual functioning. (R. 749.)

Dr. Tan estimated that plaintiff's impairments would cause her to be absent from work about three times per month, and "possibl[y]" interfere with her ability to "understand, remember, and carry out instructions." (R. 749-50.) He opined that plaintiff had a "marked" loss in her ability to complete a variety of work-related tasks, including carrying out very short, simple instructions, making simple work-related decisions, interacting appropriately with the pubic, and using public transportation, and an "extreme" limitation in her ability to "[c]omplete a normal workday or workweek without interruptions from psychologically based symptoms" and to "travel in unfamiliar places." (R. 750-51.) Dr. Tan found that plaintiff had "marked" restrictions in her "activities of daily living" and "marked" difficulties in "maintaining social functioning," as well as "frequent" "[d]eficiencies of concentration, persistence or pace," and "possibly" repeated episodes of deterioration or decompensation. (R. 751-52.) Dr. Tan concluded, however, that plaintiff could manage benefits in her own best interest. (R. 752.) He did not identify how long plaintiff's condition had existed or persisted with the restrictions he identified. (Id.)

5. Dr. Cohen

Psychiatrist Richard W. Cohen, M.D., who did not examine plaintiff personally, testified before the ALJ at the hearing on November 22, 2016. His testimony is addressed in § III(B), below.

III. HEARING

A. March 16, 2016 Hearing

On March 16, 2016, plaintiff appeared, with counsel, before ALJ Grossman. (R. 99-122.) Plaintiff testified in Spanish, through an interpreter. (R. 101.) She stated that she was not capable of working "either physically or emotionally." (R. 104.) She explained that she was not physically capable of working because she had osteoporosis in her lower back and left hip, and problems with her discs. (R. 105.) She stated that she had "taken three times physical therapy" at Parkchester Medical, but had not been there since October 2015. (R. 106-07.) She testified that an MRI had been conducted of her back, showing arthritis and disc disease. (R. 107.) After discussion between the ALJ and plaintiff's counsel, the ALJ requested that counsel provide the ALJ with the MRI mentioned by plaintiff as well as updated medical records from Parkchester Medical and Bronx Mental Health. (R. 117-21.)

B. November 22, 2016 Hearing

On November 22, 2016, plaintiff again appeared, with counsel, before ALJ Grossman. (R. 63-98.) Medical experts (MEs) Dr. Ghazi and Dr. Cohen and vocational expert (VE) Jenny Kramer appeared and testified via telephone.

1. Plaintiff's Testimony

Plaintiff again testified, through an interpreter, that she could not work because her "back hurts too much, and [her] left hip hurts." (R. 65, 68.) Under questioning by her attorney, plaintiff testified that her pain "starts in the middle, and it goes down, and then when I walk, my hip bothers me," and stated that she felt other symptoms "like a pinch, and like a burning." (R. 69.) She also testified that the sole of her right foot hurt, and that she could only stand about 15 minutes at a time. (R. 69-70.) Asked about her ability to shop, plaintiff stated that she sometimes walked to a nearby supermarket to get small grocery items, such as coffee, milk, and sugar, but that if she needed more, her daughter "will take it." (R. 70-71.)

Plaintiff testified that she saw a psychiatrist for "severe depression and anxiety" and that she did not like to socialize or go out, although family members telephoned and visited her. (R. 72-73.) She did go to church, but did not socialize with people there except to say "hello." (R. 74.)

2. Dr. Ghazi's Testimony

Dr. Ghazi confirmed that he was Board-certified in orthopedic surgery and had reviewed plaintiff's medical records, but had never met her. (R. 74.) He opined that plaintiff "suffers from chronic low back pain [and] multi[-]level degenerative disc disease," adding that such a condition "is pretty much age appropriate for anyone that age." (R. 75.) He further stated that plaintiff had "deficit[s] of the lower extremities, and her condition remain[ed] . . . chronic low back pain because of the multi[-]level degenerative disc disease." (Id.) Dr. Ghazi noted that plaintiff's treatment regimen consisted of "light pain medication . . . and things of that nature." (Id.)

ALJ Grossman then provided Dr. Ghazi with definitions of "medium" and "light" work, stating that "medium work" means "you have to be able to stand and walk up to six hours in an eight-hour day, sitting obviously is also considered pretty much unlimited, but most of the work is not. You also have to be able to lift up to 50 pounds occasionally, 25 pounds frequently." (R. 75.) The ALJ continued, "Light work on the other hand is pretty the same except for the lifting and carrying is ten pounds frequently, and 20 pounds occasionally." (R. 76.) At this point, without any question having been asked, Dr. Ghazi replied, "I agree with that yes." (Id.) It is not clear from the transcript whether Dr. Ghazi was agreeing with the ALJ's definition of light work or agreeing that plaintiff could perform light work. The dialog continued, equally unhelpfully:

Q. Light work?

A. Yes, light work.

Q. OK, light work. Okay.

(Id.)

Plaintiff's counsel then began questioning Dr. Ghazi, but was interrupted by the ALJ:

Q. Did you see any evidence of impingement on the S1 nerve root?

ALJ: Counsel, if you find that evidence, why don't you point to it, if you have a - something in there that you want to talk about.

ATTY: Well, first I want to see if Dr. Ghazi saw it.

ALJ: No, counsel, if you want to ask him about something specific, show on the record. That's the way to do it, okay, at least in my courtroom, if this is a courtroom, or a hearing office, whatever you want to call it. That's the way you ask the question, not - it's not a got you thing.

(R. 77.) The ALJ thereupon located the September 10, 2014 MRI report (R. 761-62), showing impingement on the S1 nerve root, and asked Dr. Ghazi, "[w]hat's the significance of that?" (R. 78.) Dr. Ghazi replied: "[inaudible], Your Honor. It's just here making findings of the usual." (Id.) The ALJ then asked Dr. Ghazi to specify the date as of which the record "establishe[d]" that "she's limited to light work." (Id.) Dr. Ghazi replied, "The record indicates March of 2013. I think it's fair to say that from that point on she could engage in light work." (R. 78-79.)

Plaintiff's counsel did not ask Dr. Ghazi any more questions. Instead, after a back and forth with the ALJ over the significance of the "impingement" (R. 79), plaintiff's counsel concluded: "I guess we're ready for Dr. [Cohen] at this point." (R. 81.)

3. Dr. Cohen's Testimony

Dr. Cohen confirmed that he was Board-certified in psychiatry, had reviewed plaintiff's medical records, but had never met her. (R. 83.) He asked about plaintiff's social life, prompting plaintiff to testify: "I don't go anywhere because I don't have friends. The only ones that I speak to are my daughters, and that's it, and my sisters." (R. 85.)

Dr. Cohen opined that plaintiff has "major depressive disorder with sleep problems, energy problems, concentration problems, [and] anhedonia." (R. 85.) He cited various deaths in plaintiff's family, and her "pathological responses to those losses," as causes of her depression. (Id.) He continued, "We have a history of a working disability probably, but yet there's conflict in the records." (Id.) Dr. Cohen identified the results of Dr. Mahony's mental status examination as "inconsistent" with the rest of the record (R. 86), describing plaintiff's "attention span" performance with Dr. Mahony as "worse than any patient" he had seen in his 35 years of practice. (R. 87.)¹¹ Such poor performance, he said, was "almost impossible," meaning that it was "either malingering, or no effort [was] done," particularly since "her treating doctor thought her intelligence was within normal limits." (Id.)

11 Dr. Cohen elaborated: "I've maybe done 100,000 mental status exams, but I've never seen anybody with a zero digit span forward. That means if you say please repeat the number two, can you repeat it, and they can't do that." (R. 87.)

Dr. Cohen then testified that, in his opinion, plaintiff's activities of daily living were "mildly" impaired (R. 88) and that she suffered a "mild to moderate" impairment in her social functioning. (Id.) Dr. Cohen noted that "[s]he has a friend, she gets along with family," but "there is some social isolation." (Id.) Dr. Cohen further opined that plaintiff suffered a "moderate" impairment in her concentration, persistence, and pace (Id.) He noted no episodes of deterioration during the relevant time period, but acknowledged that there had been "a couple previous psychiatric hospitalizations" before the alleged onset date. (R. 89.) Dr. Cohen concluded that plaintiff "doesn't meet the C criteria. She can do simple, repetitive tasks." (Id.)

The ALJ then asked Dr. Cohen: "If she had a job such as a home health aide where you're basically taking care of somebody, and, you know, doing things for somebody else, based upon the record that you've seen, do you think she would or would not be capable of that type of job?" (R. 90.) Dr. Cohen replied that "she emotionally can do that." (Id.)

4. VE Kramer's Testimony

VE Kramer testified that plaintiff's previous work included working as a babysitter (DOT code 301.677-010, strength level medium, SVP level 3) and as a home health aide (DOT code 354.377-014, strength level medium, SVP level 3). (R. 93-94.)¹² Based on her review of plaintiff's Work History Report, in which plaintiff wrote that she did not lift or carry anything over 10 pounds (R. 309), VE Kramer determined that plaintiff had performed the home health aide job "at the light level." (Id.)

12 "'SVP,' or specific vocational preparation, refers to the amount of time required for a typical claimant to learn the techniques, acquire the information, and develop the facility needed for average performance in a job." Lebron v. Comm'r of Soc. Sec. Admin., 2018 WL 6787166, at *2 (S.D.N.Y. Dec. 26, 2018) (citations omitted). "[U]nskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9." SSR 00-4p, 2000 WL 1899704, at *3 (Dec. 4, 2000).

ALJ Grossman then asked VE Kramer (over an objection from plaintiff's counsel) whether the home health aide job involved transferrable skills to the job of home companion (DOT code 309.677-010, strength level light, SVP level 3). (R. 95.) VE Kramer responded yes, listing as transferrable skills "performing personal care needs, accommodating individuals, [] [u]sing common sense and special skills in attending to the needs of a specific individual, [and] following oral and written instructions." (R. 95-96.) When asked whether the two jobs "are pretty much the same except one is done at the light level," VE Kamer agreed, but added, "the difference between the jobs would mainly be based on the level of health of the person they're helping, and what kind of assistance they needed." (R. 96.) VE Kramer then testified that there are approximately 80,000 positions as a home companion in the national economy. (Id.)

Plaintiff's attorney then asked VE Kramer whether there were "any differences in the skills" between the home health aide and home companion jobs. "I mean, you said there were certain common areas. Are there differences in the skills?" (R. 97.) VE Kramer replied: "The home health aide position would require more like a medical care, if needed, or personal care, whereas the companion would be more accompanying them, talking with them, things like that, less medical." (Id.)

IV. ALJ DECISION

A. Standards

A claimant is "disabled," and therefore eligible for benefits under the Act, if she 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 of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The impairments must be "of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [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), 1382c(a)(3)(B).

In his February 15, 2017 Decision, the ALJ correctly set out the five-step sequential evaluation process used pursuant to 20 C.F.R. §§ 404.1520(a) and 416.920(a) to determine whether a claimant over the age of 18 is disabled. (R. 893-95.) The Second Circuit has described the sequence as follows:

First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a "severe impairment" that significantly limits 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 that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1 . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her

past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.

Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (citation omitted).

If it is determined that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not progress to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden at the fifth step. See Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). To support a finding that the claimant is not disabled at step five, the Commissioner must offer evidence demonstrating that other work exists in significant numbers in the national and local economies that the claimant can perform, given the claimant's residual functional capacity (RFC), age, education, and past relevant work experience. See 20 C.F.R. §§ 404.1512(f) (2015), 404.1560(c), 416.912(f) (2015), 416.960(c).¹³ "Under the law of this Circuit and the SSA Guidelines, the ALJ must call a vocational expert to evaluate a claimant's significant non-exertional impairments in order to meet the step five burden." Lacava v. Astrue, 2012 WL 6621731, at *18 (S.D.N.Y. Nov. 27, 2012) (citations omitted), report and recommendation adopted, 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012).

13 20 C.F.R. §§ 404.1512 and 416.912 were amended effective March 27, 2017. In this Report and Recommendation, I apply the regulations in effect at the time of the Commissioner's Decision. Citations to regulations that have since been amended include the date of the version that was in effect at that time.

Prior to steps four and five, the ALJ must determine the claimant's RFC, that is, the "most [a claimant] can still do despite [her] limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The claimant's RFC is determined based on all of the relevant medical and other evidence in the record, including the claimant's credible testimony, the objective medical evidence, and medical opinions from treating and consulting sources. Id. §§ 404.1545(a)(3), 416.945(a)(3).

B. Application of Standards

At step one, ALJ Grossman found that plaintiff had not engaged in substantial gainful activity since March 31, 2013, the alleged onset date. (R. 895.)

At step two, the ALJ determined that plaintiff suffered from the following severe impairments: chronic low back pain, depression, and anxiety. (R. 895.)

At step three, the ALJ concluded that plaintiff did "not have any impairments or combination of impairments that meets or medically equals the severity" of any of the listed impairments. (R. 895.) The ALJ specifically considered Listing 1.00 (musculoskeletal disorders) and Listing 12.04 (depressive, bipolar, and related disorders).¹⁴

14 In order to meet Listing 12.04, a claimant must show that she satisfies the so-called "paragraph B" criteria or the "paragraph C" criteria. The "paragraph B" criteria in effect on the date of the Decision required evidence of an "extreme" limitation of one or a "marked" limitation of at least two of the following areas of mental functioning: (1) the ability to "[u]nderstand, remember, and apply information"; (2) the ability to "[i]nteract with others"; (3) the ability to "[c]oncentrate, persist, or maintain pace"; and (4) the ability to "[a]dapt or manage oneself." 20 C.F.R. pt. 404, subpt. P, app'x 1 § 12.04(B) (Jan. 17, 2017). The ALJ determined that plaintiff did not meet the "paragraph B" criteria because she had only "mild" or "moderate" limitations in all four areas. (R. 896-97.) The "paragraph C" criteria required evidence that the claimant's mental disorder was "'serious and persistent;' that is, [that she] have a medically documented history of the existence of the disorder over a period of at least 2 years," together with evidence of both of the following: (i) "[m]edical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of [the claimant's] mental disorder," and (ii) "[m]arginal adjustment, that is, [the claimant has] minimal capacity to adapt to changes in [her] environment or to demands that are not already part of [her] daily life." 20 C.F.R. pt. 404, subpt. P, app'x 1 § 12.04(C) (Jan. 17, 2017). The ALJ determined that "the evidence fails to establish the presence of the 'paragraph C' criteria." (R. 897.)

Before proceeding to step four, ALJ Grossman addressed plaintiff's RFC. He found that she had:

. . . the residual function capacity to perform light work as defined 20 CFR 404.1567(b) and 416.967(b) except [sic] simple instruction and tasks - but including some higher level jobs, that fall into the semi-skilled range - defined as having a specific vocational profile of three or four.

(R. 897.) The ALJ explained:

My conclusion that the claimant is capable of [sic] from a mental health standpoint of doing the home health aide job and the attendant job is based on the specific testimony from the impartial psychiatric medical expert, Richard Cohen MD, that the claimant is psychiatrically capable of meeting the demands of her previous work as a home health aide. The home attendant job [sic] is virtually the same job performed at the exertionally light level.

(Id.)¹⁵ The ALJ added:

The impartial orthopedic medical expert, Darius Ghazi MD, testified that based upon the medical records the claimant should be capable of performing light work. Thus, my findings are supported by the testimony of the two impartial medical experts who testified at the hearing.

(Id.)

15 "Home health aide" is an alternate title for the job of "home attendant." See U.S. Dep't of Labor, Dictionary of Occupational Titles (DICOT) 354.377-014, 1991 WL 672933 (4th ed. rev. 1991). It is apparent from the remainder of the Decision that the ALJ intended to state that the home companion job (which VE Kramer testified about) was "virtually the same job" as the home health aide/home attendant job, but "performed at the exertionally light level."

The ALJ found that the plaintiff's "statements concerning the intensity, persistence and limiting effects" of her symptoms were not "entirely consistent with the medical evidence and other evidence in the record." (R. 898.) As to her physical impairments, the ALJ noted the improvement in her symptoms as a result of pain medication and physical therapy; Dr. Cordero's observations that she had a normal gait, normal station and stability, normal strength, and a full ROM; and the fact that plaintiff retained the "ability to work in the garden." (Id.)

As to plaintiff's depression and anxiety, the ALJ noted, among other things, that her mental health treatment records (for what he characterized as "situational depression") showed improvement in her symptoms, normal mental status exams, and "relatively infrequent trips to the doctor for the allegedly disabling symptoms for which routine treatment has been generally successful in controlling those symptoms." (R. 899.) "Nevertheless," the ALJ wrote, "I have reduced the claimant's functioning to simple instruction and tasks - but including some higher level jobs, that fall into the semi-skilled range, defined as having a specific vocational profile [SVP] of three or four." (Id.)

The ALJ then weighed the medical opinion evidence. He gave "significant weight" to the opinions of both testifying medical experts, Dr. Ghazi and Dr. Cohen, because they were based on a "meticulous[]" review of the evidence in the record and were "well supported by the objective medical evidence." (R. 899.) The ALJ added - incorrectly - that both of the MEs testified, "based upon an extensive review of the claimant's record," that she "does not meet any Medical Listing." (Id.) In fact, as discussed in more detail below, neither Dr. Ghazi nor Dr. Cohen offered any opinion as to any Listing. (R. 74-91.)

The ALJ described Dr. Tan as a "treating source" but gave "little weight" to his opinion, finding it "inconsistent with the records as a whole including the claimant's attested to level of activity" and plaintiff's treating notes from Bronx Mental Health, which "consistently refer to the claimant having a depressed mood but also refer to her as having no audio nor visual hallucinations, and being well groomed, alert, oriented X3, and engaged in session." (R. 899-900.)

ALJ Grossman accorded "partial weight" to the opinions of consultative examiners Dr. Revan and Dr. Mahony, because "the fact the above opinions stem from a one-time examination make[s] them less persuasive." (R. 900.) However, he described Dr. Revan's examination and opinion - which "did not specifically assess any limits on [plaintiff's] standing, lifting, or carrying" - as "consistent with my conclusion that the claimant can do light work." (Id.)

The ALJ gave "some weight" to the opinion of Dr. Kimberly Lieber-Diaz because it was "generally supported by the record as a whole." (R. 901.) The ALJ noted that plaintiff's GAF scores ("ranging from 55-65" during the relevant period) were "one-time snapshots," but gave them "some weight" because they were "consistent with the above residual functional capacity." (R. 900.)

At step four, the ALJ found that plaintiff was "unable to perform any past relevant work," noting again that both of her past jobs (babysitter and home health aide) were classified as semi-skilled work (SVP 3) requiring medium exertion. (R. 901.)¹⁶ He also noted that plaintiff was 54 years old on the alleged disability date (making her an "individual closely approaching advanced age" for purposes of the Act) and could not communicate in English. (Id.) However, the ALJ found that plaintiff had "acquired work skills from past relevant work," including "performing personal care needs, accommodating individuals, using common sense and special skills to attend to the needs of specific individuals, [and] following oral and written instructions," all of which transferred to the job of home companion. (R. 902.)

16 On another page of the Decision, the ALJ wrote that the home health aide position had an SVP "code of 4." (R. 902.) That appears to have been an error. See DICOT 354.377-014, 1991 WL 672933 (providing that the job of home attendant, a/k/a home health aide, has an SVP level of 3).

At step five, the ALJ found there were "jobs existing in significant numbers" (namely, the home companion job) that plaintiff could perform in light of her "age, education, work experience, and residual functional capacity." (R. 902.) The ALJ explained:

The vocational expert was asked if any occupations exist which could be performed by an individual with the same age, education, past relevant work experience, and residual functional capacity as the claimant, and which require skills acquired in the claimant's past relevant work but no additional skills. The vocational expert responded and testified that representative occupations such an individual could perform include:

1. Home Companion, DOT, 309.677-010, Light, SVP 3, encompassing 80,000 jobs nationwide.

(Id.)

In fact, as discussed in more detail below, the ALJ never asked that question, and VE Kramer never answered it. Nor did VE Kramer testify at any point that an individual with plaintiff's RFC could perform the job of home companion.

On the basis of his step five determination, the ALJ found that plaintiff was not disabled, as defined by the Act, from March 31, 2013, through the date of the Decision. (R. 903.)

V. ANALYSIS

A. Standard of Review

The Act provides that the Commissioner's findings "as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Consequently, a reviewing court may set aside a decision of the Commissioner only if it is "based on legal error or if it is not supported by substantial evidence." Geertgens v. Colvin, 2014 WL 4809944, at *1 (S.D.N.Y. Sept. 24, 2014) (quoting Hahn v. Astrue, 2009 WL 1490775, at *6 (S.D.N.Y. May 27, 2009)); accord Longbardi v. Astrue, 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). When an applicant challenges an adverse benefits decision, the district court must first decide whether the Commissioner applied the correct legal standards. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). If there was no legal error, the court must determine whether the ALJ's decision was supported by substantial evidence. Tejada, 167 F.3d at 773; Calvello, 2008 WL 4452359, at *8.

"Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1970)). However, the reviewing court's task is limited to determining whether substantial evidence exists to support the ALJ's fact-finding; it may not reweigh that evidence or substitute its judgment for that of the ALJ where the evidence is susceptible of more than interpretation. "[O]nce an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (emphasis in original; quotation marks and citation omitted). As long as the ALJ's decision is supported by substantial evidence, therefore, "the Court must affirm the decision of the Secretary even if there is also substantial evidence for plaintiff's position." Gernavage v. Shalala, 882 F. Supp. 1413, 1417 n.2 (S.D.N.Y. 1995) (citing Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)); accord Johnson v. Astrue, 563 F. Supp. 2d 444, 454 (S.D.N.Y. 2008).

Although the substantial evidence standard is "a very deferential standard of review - even more so than the 'clearly erroneous' standard," Brault, 683 F.3d at 448; see also Brown v. Colvin, 73 F. Supp. 3d 193, 198 (S.D.N.Y. 2014), "the crucial factors in any determination must be set forth with sufficient specificity to enable [the reviewing court] to decide whether the determination is supported by substantial evidence." Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). Thus, remand may be appropriate if the ALJ fails to provide an adequate "roadmap" for his reasoning. But if the ALJ adequately explains his reasoning, and if his conclusion is supported by substantial evidence, the district court may not reverse or remand simply because it would have come to a different decision on a de novo review. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citation and internal quotation marks omitted). See also Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998) ("the court should not substitute its judgment for that of the Commissioner"); Ryan v. Astrue, 5 F. Supp. 3d 493, 502 (S.D.N.Y. 2014) ("[T]his Court may not substitute its own judgment as to the facts, even if a different result could have been justifiably reached upon de novo review.") (quoting Beres v. Chater, 1996 WL 1088924, at *5 (E.D.N.Y. May 22, 1996)).

B. The Parties' Contentions

Plaintiff advances three principal arguments. First, she argues that the ALJ gave too little weight to the opinion of Dr. Tan, and too much weight to the opinion of Dr. Mahony and Dr. Cohen, and therefore that he "erred in finding that plaintiff could perform full time work despite her mental impairments." Pl. Mem. at 14-19. Second, plaintiff argues the ALJ "erred in finding that plaintiff had the Residual Functional Capacity to perform light work." Id. at 15-22. That is so, according to plaintiff, because the ALJ based his physical RFC determination on Dr. Ghazi's "flawed" testimony and "abruptly stopped" counsel's questions to Dr. Ghazi concerning his review of evidence of an impingement on the S1 nerve. Id. Third, plaintiff contends that "the ALJ erred in relying on the VE's testimony," because the definition of the home companion job in DICOT suggested that plaintiff, "who is not able to communicate in English," could not perform that job. Id. at 22-23.

The Commissioner counters that the ALJ properly weighed Dr. Tan's opinion in determining plaintiff's mental RFC "given Dr. Tan's limited treatment of plaintiff, and the inconsistency of the opinion with the record as a whole." Def. Mem. at 29-32. According to the Commissioner, the ALJ's physical and mental RFC determinations were supported by substantial evidence, including the opinions of Dr. Ghazi, Dr. Cohen, Dr. Revan, Dr. Lieber-Diaz, and Dr. Mahony, as well as the examinations and reports of Dr. Cordero and Dr. Robotti. Id. at 23-32. Second, the Commissioner asserts, the ALJ's physical RFC determination was supported by the opinions of testifying expert Dr. Ghazi and consultative examiner Dr. Revan, as well as the "benign medical examination conducted by plaintiff's primary care physician, Dr. Cordero." Id. at 24-28. Third, the Commissioner contends - in response to an argument plaintiff does not make - that the ALJ properly discounted plaintiff's credibility. Id. at 32-33. Finally, the Commissioner asserts that the ALJ did not err in relying on the testimony of VE Kramer to determine that "plaintiff's past work as a home health aide provided transferrable skills to the job of home companion," and that "a significant number [80,000] of those jobs existed in the national economy." Id. at 33-35.

I agree with the Commissioner that the ALJ did not err in weighing Dr. Tan's opinion or in assessing plaintiff's physical capabilities. However, I conclude that the ALJ's RFC - integrating her physical and mental capacities - was impermissibly vague, internally inconsistent, and not supported by substantial evidence. Moreover, the ALJ erred at step five by failing to adduce expert testimony that "jobs exist in the economy which claimant can obtain and perform." Butts v. Barnhart, 388 F.3d 377, 383-84 (2d Cir. 2004) (quoting Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999)), as amended on reh'g in part, 416 F.3d 101 (2d Cir. 2005). Because the narrow, outcome-driven questions that ALJ Grossman posed to VE Kramer did not "include all of [the] claimant's impairments, limitations and restrictions," Brodbeck v. Astrue, 2008 WL 681905, at *18 (N.D.N.Y. Mar. 7, 2008), her response "cannot constitute substantial evidence to support a conclusion of no disability." Id. (quotation marks and citations omitted). ALJ Grossman also erred - repeatedly - by inventing testimony from each of the three experts who testified at the hearing. His reliance on answers that were never given, to questions that he never asked, furnishes an independent basis for remand.

C. The ALJ Did Not Err in Discounting the Opinion of Dr. Tan

1. The Treating Physician Rule

An ALJ must "evaluate every medical opinion" in the record, 20 C.F.R. §§ 404.1527(c) (2012), 416.927(c) (2012), and must generally give more weight to the opinion of a source who has examined a claimant than a source who has not. Id. §§ 404.1527(c)(1) (2012), 416.927(c)(1) (2012). Similarly, an ALJ must generally give more weight to the opinion of a source who has treated a claimant than a source who has not. Id. §§ 404.1527(c)(2) (2012), 416.927(c)(2) (2012). Under the "treating physician rule," an ALJ must give "controlling weight" to the opinion of a treating source if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and [] not inconsistent with the other substantial evidence" in the record. 20 C.F.R. §§ 404.1527(c)(2) (2012), 416.927(c)(2) (2012).¹⁷

17 The treating physician rule has since been rescinded, but applies here because plaintiff filed her claim before March 27, 2017. 20 C.F.R. §§ 404.1527, 416.927.

A treating source is the claimant's "own physician, psychologist, or other acceptable medical source who provides [the claimant], or has provided [her], with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [her]." 20 C.F.R. §§ 404.1502 (2011), 416.902 (2011). The treating physician rule recognizes that a treating source is "most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may 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 or brief hospitalizations." 20 C.F.R. §§ 404.1527(c)(2) (2012), 416.927(c)(2) (2012); see also Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983) ("The opinion of a treating physician is accorded extra weight because the continuity of treatment he provides and the doctor/patient relationship he develops place him in a unique position to make a complete and accurate diagnosis of his patient.").

Where mental health treatment is at issue, the "longitudinal picture" takes on added significance. Rodriguez v. Astrue, 2009 WL 637154, at *26 (S.D.N.Y. March 9, 2009). "A mental health patient may have good days and bad days; she may respond to different stressors that are not always active. Thus, the longitudinal relationship between a mental health patient and her treating physician provides the physician with a rich and nuanced understanding of the patient's health that cannot be readily achieved by a single consultative examination." Bodden v. Colvin, 2015 WL 8757129, at *9 (S.D.N.Y. Dec. 14, 2015); accord Ramos v. Comm'r of Soc. Sec., 2015 WL 708546, at *15 (S.D.N.Y. Feb. 4, 2015).

If the medical opinion of a treating source is not given controlling weight, the ALJ must decide how much weight should be assigned to that opinion. 20 C.F.R. §§ 404.1527(c)(2) (2012), 416.927(c)(2) (2012). In making that determination, the ALJ is required to consider specific factors, including the "[l]ength of the treatment relationship and the frequency of examination." 20 C.F.R. §§ 404.1527(c)(2)(i) (2012), 416.927(c)(2)(i) (2012); see also Sanchez v. Astrue, 2008 WL 4344567, at *5 (S.D.N.Y Sept. 17, 2008) (noting that the factors set out in § 416.927(c) "apply to . . . other 'acceptable medical sources' such as traditional doctors," not just the treating physicians themselves). In general, "the longer a treating source has treated [a patient] and the more times [that patient] has been seen by a treating source, the more weight" the ALJ should give to that opinion. 20 C.F.R. §§ 404.1527(c)(2)(i) (2012), 416.927(c)(2)(i) (2012). In addition, the ALJ must consider the nature and extent of the relationship between the patient and physician. "Generally, the more knowledge a treating source has about [a patient's] impairments, the more weight [the ALJ] will give to the source's medical opinion." 20 C.F.R. §§ 404.1527(c)(2)(ii) (2012), 416.927(c)(2)(ii) (2012). The ALJ must also consider whether the opinion is supported by "relevant evidence" and "supporting explanations," whether the source is a specialist in the relevant field, and whether the opinion is consistent "with the record as a whole." 20 C.F.R. §§ 404.1527(c)(3)-(5) (2012), 416.927(c)(3)-(5) (2012). Additionally, the ALJ should consider any "other factors" that "tend to support or contradict the medical opinion." 20 C.F.R. §§ 404.1527(c)(6) (2012), 416.927(c)(6) (2012).

2. Dr. Tan's Opinion Was Not Entitled to Controlling Weight

There is no evidence in the administrative record that plaintiff had an "ongoing treatment relationship" with Dr. Tan. 20 C.F.R. §§ 404.1502 (2011), 416.902 (2011). In his Medical Source Statement, Dr. Tan wrote: "client/pt seen biweekly/usually/for psychotherapy - monthly/bimonthly psychiatrist." (R. 748.) Plaintiff did visit Bronx Mental Health on a regular basis. However, she was almost always seen by medical professionals other than Dr. Tan. (R. 645-50, 764-878.) Insofar as the record reveals, Dr. Tan personally treated plaintiff only once, on August 1, 2015, when he saw her for 15 minutes for medication management. (R. 849.) In his sparse progress notes from that visit, Dr. Tan wrote that plaintiff complained of "some depression - family and financial issue[s]," that her mood was "tense and sad," but that her "affect was full." (Id.) Seven months later, on March 3, 2016, Dr. Tan completed his Medical Source Statement. It is not clear whether Dr. Tan met with plaintiff on March 3, 2016 prior to completing that form.

The fact that Dr. Tan saw plaintiff once (or twice) did not make him plaintiff's treating physician, and does not demonstrate that he had "a rich and nuanced understanding of the patient's health," Bodden, 2015 WL 8757129, at *9, or was "able to provide a detailed, longitudinal picture" of her condition. 20 C.F.R. §§ 404.1527(c)(2) (2012), 416.927(c)(2) (2012). Therefore, the ALJ was not required to give Dr. Tan's opinion the heightened deference due to the opinion of a treating physician. See Mongeur, 722 F.2d at 1039 n.2 (opinion of physician "who only examined Mongeur once or twice" was not "entitled to the extra weight of that of a 'treating physician'"); Garallua v. Comm'r of Soc. Sec., 2018 WL 4233813, at *16 (S.D.N.Y. Feb. 1, 2018).

3. Dr. Tan's Opinion Was Inconsistent with Plaintiff's Treatment Notes and Other Evidence in the Record

My conclusion that Dr. Tan did not qualify as plaintiff's treating physician does not, however, wholly answer the question whether the ALJ erred by assigning "little weight" to his views. As explained above, the factors bearing on the weight to be given a medical opinion from a non-treating source include whether that medical source examined the claimant, whether the opinion is supported by "relevant evidence" and "supporting explanations," whether it is consistent "with the record as a whole," and whether the source is a specialist in the relevant field. 20 C.F.R. §§ 404.1527(c)(3)-(5) (2012), 416.927(c)(3)-(5) (2012).

In this case, I cannot fault the ALJ's decision to discount Dr. Tan's opinion as unsupported by plaintiff's treatment records and inconsistent with the record as a whole. As the ALJ explained, plaintiff's treatment notes at Bronx Mental Health "consistently" refer to plaintiff as "well groomed, alert, oriented X3, and engaged in session." (R. 899; see also, e.g., R. 817 (plaintiff "presented an appropriate affect with congruent mood"); R. 833 (plaintiff's "affect was appropriate and mood variable").) The ALJ reasonably found that these notes undercut Dr. Tan's assertions that plaintiff had difficulty thinking and concentrating, displayed hostility and irritability, and had "marked" limitations in her activities of daily living and maintenance of social functioning. (R. 748, 751.) Moreover, as the Commissioner points out, Dr. Tan checked a box on his Medical Source Statement indicating that plaintiff had a "[b]lunt, flat, or inappropriate affect" (R. 748), but previously observed, in his only treatment note, that her "affect was full." (R. 849.) Similarly, his colleagues at Bronx Mental Health typically found plaintiff's affect "appropriate," "full," or "euthymic." (See, e.g., R. 773, 775, 777, 779-80, 785-87, 792, 798-800, 811, 821, 828-30, 839.)

Dr. Tan also opined that plaintiff had a "moderate loss" in her ability to understand and remember very short, simple instructions and a "marked loss" in her ability to "carry out very short, simple instructions." (R. 750.) However, nothing in his treatment notes (or those of other providers at Bronx Mental Health) suggested that plaintiff had any memory or cognitive difficulties. To the contrary: Dr. Robotti consistently found her cognition "intact." (See, e.g., R. 771, 777, 792, 796, 811, 819, 825, 839, 845.) Plaintiff herself stated, in her June 2014 Function Report, that she had had no problems paying attention or finishing what she started. (R. 300.) Even Dr. Mahony found "no evidence of limitation in the claimant's ability to follow and understand simple directions and instructions and perform simple tasks independently." (R. 659.)

Dr. Tan's opinion was also inconsistent with plaintiff's documented conduct. For example, Dr. Tan opined that plaintiff had an "extreme loss" in her ability to "travel in unfamiliar places" and a "marked loss" in her ability to "use public transportation." (R. 751.) However, plaintiff wrote in her Function Report that she "use[s] public transportation" (R. 303), and Dr. Mahony observed that plaintiff traveled to her psychiatric evaluation "on her own by bus." (R. 657.)

Given the inconsistencies between Dr. Tan's opinion and his own treating notes, as well as other evidence in the record, I cannot fault the ALJ for affording Dr. Tan's opinion less weight than he gave to the opinions of Dr. Mahony and Dr. Cohen. See Conyers v. Comm'r of Soc. Sec., 2019 WL 1122952, at *15 (S.D.N.Y. Mar. 12, 2019) (ALJ did not err in discounting opinion of psychiatrist who had no "ongoing treatment relationship" with plaintiff where his medical source statement was inconsistent with the underlying treatment notes and other evidence in the record).

D. The ALJ's RFC Determination Is Not Supported by Substantial Evidence

1. Residual Functional Capacity

As noted above, a claimant's RFC is the most she can do despite her limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); see also SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996). While medical sources may provide opinions concerning the claimant's specific functional limitations, SSR 96-5p, 1996 WL 374183, at *4 (July 2, 1996), it is the ALJ who is ultimately tasked with determining a claimant's RFC, which he must do based on the record as a whole. 20 C.F.R. §§ 404.1527(d)(2) (2012), 404.1545(a)(3), 404.1546(c), 416.927(d)(2) (2012), 416.945(a)(3), 416.946(c). The ALJ must assess the claimant's RFC based on all the relevant medical and other evidence of record, taking into consideration all "functional limitations and restrictions that result from an individual's medically determinable impairment or combination of impairments." SSR 96-8p, 1996 WL 374184, at *1. The RFC is a "function-by-function assessment of the individual's physical and mental capacities." Id., 1996 WL 374184, at *3. It "may be expressed in terms of an exertional category," such as light work, but only if the claimant is "able to perform substantially all of the exertional and nonexertional functions required in work at that level." Id.

2. The ALJ's Physical RFC Determination

The ALJ's determination that plaintiff had the physical RFC to perform light work was based primarily on the records and examination of treating physician Dr. Cordero (R. 898), portions of the consultative examination performed by Dr. Revan (R. 900), and the opinion of Dr. Ghazi, who "testified that based upon the medical records the claimant should be capable of performing light work." (R. 897.)¹⁸

18 "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. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time." 20 C.F.R. §§ 404.1567(b), 416.967(b).

Plaintiff challenges this determination, relying on treatment records that reflect her self-report of significant pain ("aggravated by heavy lifting, turning twisting, and arm movements"); her September 10, 2014 MRI showing impingement upon the left S1 nerve root; and portions of the consultative examination of Dr. Revan, who noted that plaintiff had "limitations with climbing stairs" and "back pain with sitting, lying down and walking." Pl. Mem. at 20-21. Plaintiff also contends that Dr. Ghazi's testimony was "flawed," in that he "never testified that he considered that the [sic] evidence of an impingement on the SI nerve prior to his testimony that plaintiff was limited to light work." Id. at 21-22.

I agree with plaintiff that Dr. Ghazi's opinion does not furnish substantial evidence for the ALJ's physical RFC determination. To begin with, Dr. Ghazi neither treated nor examined the plaintiff. As a "general rule," such a doctor's "assessment of what other doctors find is hardly a basis for competent evaluation." Conyers, 2019 WL 1122952, at *16 (quoting Ridge v. Berryhill, 294 F. Supp. 3d 33, 61 (E.D.N.Y. 2018)). Moreover, unlike Dr. Cohen (who had clearly studied Dr. Mahony's consultative report, identified certain mental status exam results as anomalies, and offered observations based on his own experience to put those anomalies in context), Dr. Ghazi's testimony consisted almost entirely of agreeing with the ALJ, in conclusory terms, that plaintiff was capable of light work. (R. 76, 78-79.) At no point did the ME explain why he came to that conclusion, much less tie any of the underlying medical evidence to any of the specific work-related functions relevant to performing exertionally light work.

Because plaintiff's physical RFC was an issue "reserved to the Commissioner" 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2), the testimony of a medical expert as to that ultimate issue is entitled to "no special significance." 20 C.F.R. §§ 404.1527(d)(3), 416.927(d)(3). See Conyers, 2019 WL 1122952, at *20 (quoting Ryan, 5. F. Supp. 3d at 510) ("no deference need be given to the conclusion [by a medical source] that a claimant has a particular RFC, e.g., that a claimant is limited to performing sedentary work"). Indeed, the SSA's Hearing, Appeals, and Litigation Law Manual (HALLEX) instructs ALJs that they "may ask an ME to provide information and an opinion(s) that will help the ALJ establish the claimant's RFC," but "may not ask an ME to . . . decide a claimant's RFC." HALLEX 1-2-6-70(E). Here, as in Conyers, ALJ Grossman ignored that guidance and affirmatively solicited Dr. Ghazi to opine that plaintiff had "a particular RFC," namely, that she was "limited to performing [light] work." 2019 WL 1122952, at *20.

In this Circuit, however, "a failure to follow HALLEX does not necessarily constitute legal error." Gallo v. Colvin, 2016 WL 7744444, at *12 (S.D.N.Y. Dec. 23, 2016), report and recommendation adopted sub nom. Gallo v. Comm'r of Soc. Sec., 2017 WL 151635 (S.D.N.Y. Jan. 12, 2017), and report and recommendation adopted sub nom. Gallo on behalf of M.G. v. Comm'r of Soc. Sec., 2017 WL 1215219 (S.D.N.Y. Mar. 31, 2017). Consequently, the ALJ's improper questioning of the ME does not, in and of itself, require remand. Moreover, the ALJ's reliance on the testimony he prompted Dr. Ghazi to provide, although also improper, was harmless error, because there is substantial evidence in the record apart from Dr. Ghazi's opinion - including plaintiff's treatment records and the observations and opinion of Dr. Revan - to support the ALJ's physical RFC determination.

Dr. Cordero's March 17, 2014 physical examination revealed that plaintiff had a normal gait, normal station and stability, normal inspection, palpation, stability, muscle strength, tone, and range of motion in her neck, spine, ribs, pelvis, right and left upper extremities, and right and left lower extremities. (R. 673.) Four days later, in a Physical Examination Form, Dr. Cordero identified no chronic health problems and listed high cholesterol as plaintiff's only acute health problem. (R. 670.)

Similarly, plaintiff's physical therapy treatment notes, though sparse, reflect continued improvement. (See R. 362, 390, 398, 404, 430, 441, 457, 469, 473, 481.) By June 1, 2015, plaintiff was doing "much better" and was "walking better and moving with less pain." (R. 390.) Although these notes also reflect that plaintiff had difficulty with "walking long distance" and "heavy lifting" (R. 467) (emphasis added), they do not suggest that she was incapable of the lesser exertion required for light work.

Dr. Revan's July 30, 2014 consultative examination furnished additional support for the ALJ's physical RFC determination. Although plaintiff told Dr. Revan that her pain was "9 out of 10," she also confirmed that it was "better with medicine and physical therapy" (R. 661), and on examination she displayed a normal gait, was able to walk on her toes, squatted halfway, had a normal stance, used no assistive devices, needed no help changing for exam or getting on and off the exam table, and was able to rise from a chair without difficulty. (R. 662.) Plaintiff's musculoskeletal exam also produced normal results, with full ROM, except that "[l]umbar spine flexion [was] 90 degrees with back pain," and plaintiff had 5/5 strength in her upper and lower extremities and grip. (R. 663.) Dr. Revan expressly found "no limitation" in plaintiff's ability to use her "upper extremities for fine and gross motor activity" or perform activities of daily living (R. 664), and did not identify any limitations in her abilities to lift and carry.

As the ALJ acknowledged, Dr. Revan also found that plaintiff had "back pain with sitting, lying, or walking," and a limitation "with climbing stairs due to shortness of breath and fatigue." (R. 664, 900.) This portion of Dr. Revan's opinion, however, did not dictate an RFC of less than light work. See Martinez v. Colvin, 286 F. Supp. 3d 539, 545 (W.D.N.Y. 2017) (a claimant's limitations "in bending, lifting, carrying, pushing, pulling, sitting, or standing due to chronic back pain" were "consistent with the ability to perform light work"). Likewise, shortness of breath when climbing stairs is not prohibitive of light work. See Gaiser v. Comm'r of Soc. Sec., 2015 WL 3536604, at *12 (S.D.N.Y. June 5, 2015) ("plaintiff's limited ability to climb does not, per se, significantly limit the range of work available to plaintiff").

To be sure, there is some evidence in the record - including portions of plaintiff's Function Report and hearing testimony - that would support the conclusion that she had greater physical limitations than those the ALJ accepted. See Pl. Mem. at 20-21. But that is not the test. "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." Johnson, 563 F. Supp. 2d at 454. In this case, the evidence summarized above is sufficient to support the ALJ's determination as to plaintiff's physical RFC.

3. The ALJ's Mental RFC Determination

The ALJ recognized that, due to her mental impairments, plaintiff is not capable of the full range of light work. In formulating her overall RFC, however, the ALJ described the additional limits resulting from her mental impairments in language that is sloppy (at best), vague, and internally inconsistent: "[Plaintiff] has the residual functional capacity to perform light work . . . except simple instruction and tasks - but including some higher level jobs, that fall into the semi-skilled range - defined as having a specific vocational profile of three or four." (R. 897.)

Read literally, this formulation - stating that plaintiff could do light work "except" simple instructions and tasks - is nonsensical. Nearly all work, including at the unskilled (SVP 1-2) level, requires the employee to be capable of following simple instructions and performing tasks. See 20 C.F.R. §§ 404.1568(a), 416.968(a) ("Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time."). Moreover, as noted above, the record amply supports the conclusion that plaintiff could follow simple instructions and perform simple tasks.

The ALJ likely intended to say that plaintiff was limited to simple instructions and tasks, which is how he (re)characterized his conclusion a few pages later: "I have reduced the claimant's functioning to simple instructions and tasks." (R. 899.) Such a limitation would be consistent with the opinions of Dr. Mahony and Dr. Lieber-Diaz. (R. 133.) However, the language immediately following that limitation - that plaintiff retains the mental capacity to do "some higher level jobs," including those "having a specific vocational profile of three or four" (R. 897, 899) - is "confusing and arguably internally inconsistent." Windom v. Colvin, 2015 WL 8784608, at *6 (W.D.N.Y. Dec. 15, 2015) ("the ALJ's finding . . . that plaintiff could perform specific vocational preparation ('SVP') level four work is inconsistent with his ultimate RFC finding that plaintiff could perform only simple, unskilled work"); see also King v. Comm'r of Soc. Sec., 2013 WL 5567112, at *3 (N.D.N.Y. Oct. 9, 2013) ("[T]here does not appear to be any supporting case law for the proposition that a claimant limited to understanding, remembering and carrying out simple instructions and directions and making work judgments on simple work-related decisions can [also] perform jobs requiring up to a reasoning level of four.").¹⁹

19 For the same reasons, courts have rejected physical RFCs that appear to simultaneously limit and permit certain forms of exertion. See, e.g., Crowley v. Berryhill, 2018 WL 5784513, at *3 (W.D.N.Y. Nov. 5, 2018) (an RFC providing that claimant could "carry up to fifty pounds occasionally" but "never carry more than twenty pounds" - absent any explanation from the ALJ of "how she reached her inconsistent conclusions regarding Plaintiff's carrying ability or [] any discussion that would allow the Court to reconcile the inconsistency" - was an "irreconcilable internal inconsistency" necessitating remand); Payamps v. Berryhill, 2019 WL 259114, at *3 (D. Conn. Jan. 18, 2019) ("since the Court here is unable to determine what, precisely, the RFC finding is, remand for further administrative proceedings is required").

Having determined that plaintiff was capable of only simple instructions and tasks, the ALJ was required to provide an explanation, supported by substantial evidence, for why she was simultaneously capable of "some higher level jobs" - but apparently not others - "that fall into the semi-skilled range - defined as having a specific vocational profile of three or four." (R. 897) (emphasis added). I find no such evidence in the record, even if I assume that the only "higher level job[]" the ALJ had in mind was the job he mentioned in the next sentence: "[P]laintiff is capable . . . from a mental health standpoint of doing the home health aide job and the home attendant job." (R. 897.)²⁰

20 As noted above, "home health aide" and "home attendant" are different labels for the same job. See DICOT 354.377-014, 1991 WL 672933.

According to the ALJ, his conclusion that plaintiff had the mental capacity to perform that job was based on the "specific testimony from . . . Richard Cohen MD, that the claimant is psychiatrically capable of meeting the demands of her previous work as a home health aide." (R. 897.) The ALJ did ask Dr. Cohen whether plaintiff would be capable of doing a job "such as a home health aide where you're basically taking care of somebody and, you know, doing things for somebody else," to which the ME responded, "I think emotionally she can do that." (R. 89.) However, there is no evidence, anywhere in the record, that Dr. Cohen (a psychiatrist) had any vocational training, knew what a home health aide did (other than "basically taking care of somebody"), or was otherwise qualified to offer an opinion about plaintiff's emotional ability to perform that specific job. See Millet v. Schweiker, 662 F.2d 1199, 1204 (5th Cir. 1981) ("Although Dr. Paddison has excellent professional qualifications as a physician, the record contains nothing to indicate that he has had any training as a vocational expert, and the Government made no effort to qualify him as such."); Moore v. Comm'r of Soc. Sec., 2014 WL 630589, at *17 (S.D.N.Y. Feb. 18, 2014) (the ALJ "correctly concluded" that because a physician was not a vocational expert, his evaluation of claimant's "ability to work" was "beyond his expertise"). "In light of the inconsistency within the RFC itself," as well as the ALJ's failure to provide an explanation supported by substantial evidence for that inconsistency, I conclude that "the ALJ has failed to provide a decision that permits the Court to conduct a meaningful review." Crowley, 2018 WL 5784513, at *3.

E. The ALJ Erred at Step Five

1. Step Five

At step five, the Commissioner is "responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy" that the claimant can do. 20 C.F.R. §§ 404.1560(c)(1)-(2), 416.960(c)(1)-(2). The Medical-Vocational Guidelines (commonly referred to as the "Grids"), 20 C.F.R. pt. 404, subpt. P, app'x 2, typically guide this evaluation, placing claimants with exertional limitations into categories according to their exertional capabilities (e.g., sedentary, light, or medium work), age, education, and work experience. See 20 C.F.R. §§ 404.1520(g), 416.920(g). However, "[w]hen a claimant suffers from a nonexertional limitation such that he is 'unable to perform the full range of employment indicated by the [Grid],' the Commissioner must introduce the testimony of a vocational expert in order to prove 'that jobs exist in the economy which claimant can obtain and perform.'" Rivera v. Colvin, 2015 WL 1027163, at *11 (S.D.N.Y. Mar. 9, 2015) (quoting Butts, 388 F.3d at 383, and Bapp v. Bowen, 802 F.2d 601, 605-06 (2d Cir. 1986)).

"Under the law of this Circuit and the SSA Guidelines, the ALJ must call a vocational expert to evaluate a claimant's significant non-exertional impairments in order to meet the step five burden." Lacava, 2012 WL 6621731, at *18 (citing Acevedo v. Astrue, 2012 WL 4377323 (S.D.N.Y. Sept. 4, 2012), and Giannasca v. Astrue, 2011 WL 4445141 (S.D.N.Y. Sept. 26, 2011)). Moreover, "[w]hen the testimony of a vocational expert is used, the ALJ must present a hypothetical that incorporates all of Plaintiff's impairments." Harkins v. Colvin, 2016 WL 8669981, at *18 (S.D.N.Y. Dec. 8, 2016) (citing Kuleszo v. Barnhart, 232 F. Supp. 2d 44, 57 (W.D.N.Y. 2002)), report and recommendation adopted, 2017 WL 1239655 (S.D.N.Y. Mar. 31, 2017). "If the ALJ fails to pose [a] hypothetical question[] that include all of a claimant's impairments, limitations and restrictions, or is otherwise inadequate, a vocational expert's response cannot constitute substantial evidence to support a conclusion of no disability." Brodbeck, 2008 WL 681905, at *18 (quotation marks and citations omitted; alterations supplied).

2. The ALJ Erred at Step Five

Because the ALJ determined that plaintiff's limitations "do not allow [her] to perform the full range of light work" (R. 902), he properly called a vocational expert to testify. However, he never presented the VE with any hypothetical question, much less a question "that incorporates all of Plaintiff's impairments." Harkins, 2016 WL 8669981, at *18. Instead, without telling VE Kramer anything about plaintiff's RFC, he asked her whether there were transferrable skills "from the home health aide job to the home companion job." (R. 95.) The VE testified that "there would be transferable skills to the position of companion" (id.), including "performing personal care needs, accommodating individuals, [] [u]sing common sense and special skills in attending to the needs of a specific individual, following oral and written instructions." (R. 96.)

The ALJ then asked, "Am I right in saying that the two jobs are basic - are pretty much the same except one is done at the light level, and one is done at the medium level? Is that right or wrong?" to which VE replied, "Yes, the difference between the jobs would mainly be based on the level of health of the person they're helping, and what kind of assistance they needed." (R. 95-96.) VE Kramer then testified that there were approximately 80,000 home companion jobs in the national economy. (R. 96.) When plaintiff's counsel asked whether there were any differences between the skills needed for the two jobs, the VE replied that the "home health aide position would require more like a medical care, if needed, or personal care, whereas the companion would be more accompanying them, talking with them, things like that, less medical." (Id.)

The ALJ based his step five determination squarely on VE Kramer's testimony. However, he mischaracterized that testimony in the Decision, which recited that the VE "was asked if any occupations exist which could be performed by an individual with the same age, education, past relevant work experience, and residual functional capacity as the [plaintiff], and which require skills acquired in the claimant's past relevant work but no additional skills." (R. 902.) According to the Decision, VE Kramer "responded and testified that representative occupations such an individual could perform include" the home companion job discussed at the November 22, 2016 hearing (DOT code 390.677-010, light work, SVP 3, 80,000 jobs in the national economy). (Id.)

None of this exchange actually took place. The ALJ never asked VE Kramer to consider an individual with plaintiff's RFC, and VE Kramer never testified that such a claimant could perform the job of home companion.²¹ The ALJ's significant mischaracterization of the record, standing alone, requires remand. Poles v. Colvin, 2015 WL 6024400, at *4 (W.D.N.Y. Oct. 15, 2015) (remanding where ALJ grossly mischaracterize the record); Richardson v. Barnhart, 443 F.Supp.2d 411 (W.D.N.Y. 2006) (same); Boertlein v. Astrue, 2011 WL 1326585, at *2 (E.D.N.Y. Mar. 31, 2011) ("The Court remands this case for further administrative proceedings because the ALJ mischaracterized record evidence central to his no-disability determination.").

21 Moreover, this is not the only testimony that the ALJ invented out of whole cloth. According to ALJ Grossman, both Dr. Ghazi and Dr. Cohen "testified that based upon an extensive review of the claimant's record, the claimant does not meet any Medical Listing." (R. 899.) But no such testimony can be found in the hearing transcript.

Had the ALJ accurately reported VE Kramer's testimony, he would have been compelled to acknowledge that he failed to elicit testimony supporting his step five determination that a specific claimant, with all of her specific limitations and capabilities, could perform a job or jobs available in significant numbers in the national economy. This error also requires remand. See Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981) ("The vocational expert's testimony is only useful if it addresses whether the particular claimant, with his limitations and capabilities, can realistically perform a particular job."); Lugo v. Chater, 1996 WL 116233, at *6 (S.D.N.Y. Mar. 15, 1996) (Sotomayor, J.) ("Proper use of vocational testimony presupposes both an accurate assessment of the claimant's physical and vocational capabilities, and a consistent use of that profile by the vocational expert in determining which jobs the claimant may still perform. Neither occurred here.").

Further compounding the ALJ's error, the home companion job is not "virtually the same job" as plaintiff's prior work as a home health aide but "performed at the exertionally light level." (R. 897.) Although VE Kramer initially gave an affirmative answer when asked if the two jobs were "pretty much the same," she followed up quickly by identifying "the difference between the jobs" (R. 96), explaining that the companion job would involve "more accompanying [people], talking with them, things like that, less medical." (R. 97) (emphasis added).

Those differences are borne out by DICOT, which notes that plaintiff's prior work required a language level of 2:

READING: Passive vocabulary of 5,000-6,000 words. Read at rate of 190-215 words per minute. Read adventure stories and comic books, looking up unfamiliar words in dictionary for meaning, spelling, and pronunciation. Read instructions for assembling model cars and airplanes.

WRITING: Write compound and complex sentences, using cursive style, proper end puncuation [sic], and employing adjectives and adverbs.

SPEAKING: Speak clearly and distinctly with appropriate pauses and emphasis, correct puncuation [sic], variations in word order, using present, perfect, and future tenses.

DICOT 354.377-014, 1991 WL 672933.

The companion job, however, requires a language level of 3, which involves significantly more communicative capacity:

READING: Read a variety of novels, magazines, atlases, and encyclopedias. Read safety rules, instructions in the use and maintenance of shop tools and equipment, and methods and procedures in mechanical drawing and layout work.

WRITING: Write reports and essays with proper format, puncuation [sic], spelling, and grammar, using all parts of speech.

SPEAKING: Speak before an audience with poise, voice control, and confidence, using correct English and a well-modulated voice.

DICOT 309.677-010, 1991 WL 672667.²²

22 The ALJ was under an "affirmative responsibility to ask about any possible conflict between that VE or VS evidence and information provided in the DOT," to "resolve this conflict before relying on the VE or VS evidence to support a determination or decision that the individual is or is not disabled," and to "explain in the determination or decision how he or she resolved the conflict." SSR 00-4p, 2000 WL 1898704, at *4 (Dec. 4, 2000).

Given these differences in communication and language levels between plaintiff's prior job and the home companion job identified by VE Kramer, it was error for the ALJ to determine that those jobs were functionally identical except for their exertional requirements, and to rely on that determination to conclude that plaintiff could perform the job of home companion.

Moreover, these errors were not harmless. As the ALJ noted, plaintiff was "not able to communicate in English" and was in fact "illiterate in English." (R. 901.) Plaintiff therefore could not perform the heightened language requirements of the home companion job - at least not in English. At a minimum, the ALJ should have considered whether the occupational base of 80,000 home companion jobs available in the national economy would have been significantly eroded for a claimant unable to communicate in English. See 20 C.F.R. §§ 404.1564(b)(5), 416.964(b)(5) ("Because English is the dominant language of the country, it may be difficult for someone who doesn't speak and understand English to do a job, regardless of the amount of education the person may have in another language. Therefore, we consider a person's ability to communicate in English when we evaluate what work, if any, he or she can do."). See also Durakovic v. Comm'r of Soc. Sec., 2018 WL 4039372, at *10 (N.D.N.Y. May 30, 2018) ("remand is recommended for the ALJ to make a specific determination regarding Plaintiff's ability to communicate in English, including whether or not Plaintiff is illiterate, and whether there are jobs that exist in the national economy Plaintiff can perform"), report and recommendation adopted, 2018 WL 4033757 (N.D.N.Y. Aug. 23, 2018); Valencia v. Berryhill, 2017 WL 4570755, at *4 (W.D.N.Y. Sept. 14, 2017) ("plaintiff's inability to speak English would have required testimony from a vocational expert to determine whether her language difficulties would preclude her ability to perform jobs existing in the national economy"), report and recommendation adopted, 2017 WL 4552892 (W.D.N.Y. Oct. 12, 2017); Rosario v. Colvin, 2017 WL 655268, at *5 (W.D.N.Y. Feb. 17, 2017) ("[T]he ALJ was required to consider Plaintiff's English language capability at the fifth step of the sequential analysis.").

The Commissioner counters that "Ms. Kramer was aware, at the time of her testimony, that plaintiff did not speak English, having heard plaintiff testify through an interpreter, and having review[ed] the plaintiff's educational and vocational records before the hearing." Def. Mem. at 34. I cannot agree. While VE Kramer "reviewed the education and vocational records in this case" (R. 92), and heard portions of plaintiff's translated testimony, she was never informed of the ALJ's determination that for purposes of determining the availability of jobs in the national economy plaintiff was "not able to communicate in English" and should be "considered in the same way as an individual who is illiterate in English." (R. 901.) Moreover, even assuming that VE Kramer had a complete understanding of plaintiff's language limitations, she was never asked how many of the 80,000 home companion jobs in the national economy could be performed by someone with those limitations. For this reason as well, the ALJ's step five determination is not supported by substantial evidence in the record.

VI. CONCLUSION

For the reasons stated above, I respectfully recommend that plaintiff's motion be GRANTED, that the Commissioner's motion be DENIED, and that this action be REMANDED to the Commissioner for further proceedings consistent with this Report and Recommendation. On remand:

1. The ALJ should not ask any medical source, including a testifying medical expert, to "decide [plaintiff's] RFC," such as by testifying to the conclusion that she is capable of working at a specific exertional level, or to opine as to whether plaintiff can perform a particular job.

2. The ALJ should formulate an intelligible RFC, supported by substantial evidence in the record, that provides a function by function assessment of plaintiff's physical and mental capacities.

3. If the ALJ once again determines that plaintiff is subject to a significant nonexertional limitation, he must call a vocational expert, and should put a complete hypothetical to that expert that incorporates all of plaintiff's impairments.

4. The Appeals Counsel should consider whether, in light of the errors described above, this matter should be assigned to a different ALJ for any further hearing.

Dated: New York, New York

July 23, 2019

/s/ _________

BARBARA MOSES

United States Magistrate Judge

NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS

TO THIS REPORT AND RECOMMENDATION

The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). See also Fed. R. Civ. P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Katherine Polk Failla at 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Failla. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).