Opinion
20cv5801 (PGG) (DF)
02-17-2022
IRIS SEGARRA, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, [1] Defendant.
REPORT AND RECOMMENDATION
DEBRA FREEMAN, UNITED STATES MAGISTRATE JUDGE
In this Social Security action, which has been referred to this Court for a report and recommendation, plaintiff Iris Segarra (“Plaintiff”) seeks review of the final decision of defendant Commissioner of Social Security (“Defendant” or the “Commissioner”), denying Plaintiff Social Security Disability (“SSDI”) benefits and Supplemental Security Income (“SSI”) benefits under the Social Security Act (the “Act”) on the grounds that, for the relevant period, Plaintiff's impairments did not render her disabled under the Act. Currently before this Court is Plaintiff's motion, made pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings reversing the Commissioner's decision or, in the alternative, remanding for further proceedings. (Dkt. 20.) Also before the Court is Defendant's cross-motion under Rule 12(c), for judgment on the pleadings affirming the Commissioner's decision. (Dkt. 23.) For the reasons set forth below, this Court recommends that Plaintiff's motion (Dkt. 20) be granted to the extent it seeks remand for further administrative proceedings, and that Defendant's cross-motion (Dkt. 23) be denied.
The background facts set forth herein are taken from the SSA Administrative Record (Dkt. 17) (referred to herein as “R.” or the “Record”).
In large part, Defendant has adopted the recitation of the relevant facts and description of the underlying administrative proceedings set out in Plaintiff's moving papers (see Plaintiff's Memorandum of Law in Support of Plaintiff's Motion for Judgment on the Pleadings, dated June 1, 2021 (“Pl. Mem.”) (Dkt. 21), at 4-6; see also Memorandum of Law in Support of Defendant's Cross-Motion For Judgment on the Pleadings and in Opposition to Plaintiff's Motion for Judgment on the Pleadings, dated July 28, 2021 (“Def. Mem.”) (Dkt. 24), at 6), familiarity with which is assumed. This Court will therefore summarize the relevant facts and administrative history only as necessary to explain its recommendations.
On December 8, 2017, Plaintiff filed separate applications for SSI benefits and SSDI benefits, each time alleging a disability onset date of July 27, 2017, as a result of her severe knee pain. (R. at 126-32.) After her claims were initially denied on February 22, 2018, Plaintiff requested a hearing before an administrative law judge (“ALJ”). (Id. at 69-73.) On April 24, 2019, Plaintiff, represented by counsel, testified at a hearing held before ALJ Kimberly L. Schiro (the “Hearing”). (Id. at 25-46.) No. vocational expert testified at the Hearing. (See id.)
In a decision issued on June 24, 2019, ALJ Schiro found that, although Plaintiff suffered from the severe impairments of bilateral knee derangement (status-post left total knee replacement) and obesity, her impairments did not meet or equal the criteria of any impairment listed as disabling in the relevant regulations. (Id. at 16.) The ALJ further found that Plaintiff had the residual functional capacity (“RFC”) to perform the full range of sedentary work, and, therefore, was not disabled under the Act. (Id. at 16-17.) Plaintiff, represented by counsel, then sought to appeal to the Appeals Council, submitting the reasons why she disagreed with the ALJ's decision. (Id. at 7-9.) The Appeals Council denied Plaintiff's request for review on May 28, 2020, finding that her reasons for seeking review did not provide a basis for changing the ALJ's decision. (Id. at 1-6.) Thereafter, the ALJ's decision became the final decision of the Commissioner. Through new counsel, Plaintiff now challenges the Commissioner's denial of benefits before this Court.
A. Plaintiff's Personal and Employment History
In her applications for SSDI and SSI benefits, Plaintiff stated that she was born on August 2, 1984, thus making her 32 years old as of her alleged disability onset date of July 27, 2017. (Id. at 129.) As to her educational background, Plaintiff reported that she had completed high school, as well as two years of college. (Id. at 32.) Plaintiff also reported that she had previously worked as an assistant retail store manager and a customer service representative. (Id. at 33-36.) According to the form “Disability Report” she completed on December 12, 2017, Plaintiff had stopped working on March 13, 2017 (a few months prior to her alleged disability onset date) due to her bilateral knee pain. (Id. at 147.)
B. Medical Evidence
As, according to Plaintiff, her disability began on July 27, 2017, the relevant period under review for purposes of her application for SSDI benefits runs from that date until December 31, 2023, the last date when Plaintiff will meet the “insured status” requirements of the Act. See 42 U.S.C. §§ 423(a)(1), (c)(1); 20 C.F.R. §§ 404.130, 404.315(a); Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989).
To be eligible for SSDI benefits, “an applicant must be ‘insured for disability insurance benefits.'” Arnone, 882 F.2d at 37 (quoting 42 U.S.C. §§ 423(a)(1)(A), 423(c)(1)). “An applicant's ‘insured status' is generally dependent upon a ratio of accumulated ‘quarters of coverage, '” i.e., quarters in which the applicant earned wages and paid taxes, “to total quarters.” Id. (citations omitted). To qualify for SSDI benefits, “Plaintiff's disability onset date must fall prior to [her] date last insured.” Camacho v. Astrue, No. 08-CV-6425, 2010 WL 114539, at *2 (W.D.N.Y. Jan. 7, 2010) (citing Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)); 20 C.F.R. § 404.315(a).
In contrast, with respect to her application for SSI benefits, the relevant period under review runs from December 8, 2017, the date that Plaintiff applied for those benefits, to June 24, 2019, the date of the ALJ's decision. See 20 C.F.R. §§ 416.330, 416.335; see Barrie ex rel. F.T. v. Berryhill, No. 16cv5150 (CS) (JCM), 2017 WL 2560013, at *2 (S.D.N.Y. June 12, 2017) (adopting report and recommendation).
Generally, “Title II [SSDI] benefits may be paid retroactively for up to 12 months prior to filing of an application. Payment of Title XVI [SSI] benefits, however, cannot precede the month following the month of application.” Roman v. Colvin, No. 13cv7284 (KBF), 2015 WL 4643136, at *1 n.2 (S.D.N.Y. Aug. 4, 2015) (citing 20 C.F.R. §§ 404.621, 416.335); see also 20 C.F.R. § 416.501 (“Payment of [SSI] benefits may not be made for any period that precedes the first month following the date on which an application is filed . . .” (emphasis added))).
1. Plaintiff's Medical Records
a. 2017
In her December 2017 Disability Report, Plaintiff reported that she had been treated by an orthopedic surgeon, Dr. Jose Echenique, of Highline Orthopaedics, from sometime in 2016 through at least December 1, 2017. (R. at 150.) Although Plaintiff provided Dr. Echenique's name, practice facility, phone number, and address, where the form Disability Report asked her to identify treaters who might have relevant medical records (id.), the Record does not contain any treatment records from Dr. Echenique. (See generally R.)
Rather, the only medical evidence in the Record from 2017 consists of partial responses to a physician questionnaire (id. at 210) - which, as discussed further below (see Background, infra, at Section B(2)(a)), is obviously incomplete and contains no signature, such that it cannot be linked, with certainty, to Dr. Echenique or any other particular provider - and radiology reports from Hudson Valley Radiology Associates (“Hudson Valley Radiology”) of MRIs taken on October 7, 2017, of Plaintiff's right and left knees (id. at 207-08).
According to the radiology reports, the MRIs had been “requested” by Dr. Echenique due to Plaintiff's reported history of “bilateral knee pain.” (Id.) The radiologist who performed the MRI of Plaintiff's right knee provided the following written “impressions”: (1) large knee joint effusion and synovitis; (2) a torn anterior cruciate ligament (“ACL”); and (3) a “complex tear of the posterior horn of the medial meniscus involving the posterior root of the meniscus . . . with a [m]edial parameniscal cyst and posteriorly as above.” (Id. at 207.) As for Plaintiff's left knee, the radiologist documented the following: (1) an ACL tear that was likely chronic; (2) a medial meniscal tear; (3) large joint effusion with debris in the suprapatellar bursa and a large popliteal fossa cyst; and (4) medial compartment severe osteoarthritis. (Id. at 208.)
“Joint effusion is when your knee or other joint swells because of excessive fluid. Joint effusion can be a sign of an injury, a type of arthritis[, ] or another condition.” Joint Effusion (Swollen Joint), Cleveland Clinic, https://my.clevelandclinic.org/health/symptoms/21908-joint-effusion (last accessed Feb. 11, 2022). “Synovitis (or synovial inflammation) is when the synovium of a joint becomes inflamed (swollen). The synovium . . . is connective tissue that lines the inside of the joint capsule.” Synovitis, Hospital for Special Surgery, https://www.hss.edu/condition-listsynovitis (last accessed Feb. 11, 2022).
“An ACL injury is a tear or sprain of the anterior cruciate ligament (ACL) - one of the strong bands of tissue that help connect your thigh bone (femur) to your shinbone (tibia).” ACL Injury, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/acl-injury/symptoms-causes/syc-20350738 (last accessed Feb. 11, 2022).
“The medial meniscus, located on the inside of the knee, is more of an elongated “C” shape, as the tibial surface is larger on that side. The medial meniscus is more commonly injured because it is firmly attached to the medial collateral ligament and joint capsule. . . . The front portion of the meniscus is referred to as the anterior horn, the back portion is the posterior horn, and the middle section is the body.” Meniscus Injuries, The Steadman Clinic and Steadman Philippon Research Institute, https://www.thesteadmanclinic.com/patient-education/knee/meniscus-injuries (last accessed Feb. 11, 2022).
“A meniscus tear is an injury to one of the bands of rubbery cartilage that act as shock absorbers for the knee. A meniscus tear can occur when the knee is suddenly twisted while the foot is planted on the ground. A tear can also develop slowly as the meniscus loses resiliency.” Medial and Lateral Meniscus Tears, Cedars-Sinai, https://www.cedars-sinai.org/health-library/diseases-and-conditions/m/medial-and-lateral-meniscus-tears. (last accessed Feb. 11, 2022).
“Cysts and cystic-appearing lesions around the knee are common and can be divided into true cysts (synovial cysts, bursae, ganglia, and meniscal cysts) and lesions that mimic cysts (hematomas, seromas, abscesses, vascular lesions, and neoplasms).” Cysts and cystic-appearing lesions of the knee: A pictorial essay, Indian Journal of Radiology and Imaging, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4094974/ (last accessed Feb. 11, 2022)
“Osteoarthritis of the medial compartment, where the lateral compartment and patella-femoral joint are relatively spared, is a common orthopaedic presentation. Most frequently, the treatment of choice would be a total knee replacement, which involves removing healthy joint surfaces in such patients.” Medial compartment osteoarthritis of the knee: a review of surgical options, U.S. National Library of Medicine National Institutes of Health, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8022014/ (last accessed Feb. 11, 2022).
b. 2018
The first medical evidence in the Record from 2018 is an X-ray report of Plaintiff's left knee, dated January 3, 2018. (Id. at 216.) According to that report, which was prepared by Dr. Lawrence S. Liebman of the IMA Group, “[v]iews of [Plaintiff's] left knee demonstrate[d] no evidence of acute fracture, dislocation[, ] or destructive bony lesion[, ] [although] [t]here [was] mild medial DJD (joint space narrowing and osteophyte formation).” (Id.)
Degenerative joint disease (“DJD”) is also known as osteoarthritis, and it causes “biomechanical changes within the joint.” Osteoarthritis, Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/5599-osteoarthritis (last accessed Feb. 11, 2022). Osteophytes or bone spurs “tend to form when the joints have been affected by arthritis.” Osteophyte (bone spur), NHS, https://www.nhs.uk/conditions/osteophyte/ (last accessed Feb. 11, 2022).
Thereafter, the Record reflects treatment by Dr. Fred. D. Cushner, who, like Dr. Echenique, was an orthopedic surgeon. The first record of a visit by Plaintiff to Dr. Cushner is dated January 11, 2018, and it documents an examination conducted on that date. (See Id. at 219-23.) In that record, Dr. Cushner wrote that, for the two prior years, Plaintiff had reportedly felt “weight[-]bearing, nocturnal[, ] positional pain” in her left knee, which was “getting worse.” (Id. at 219.) Dr. Cushner also wrote that Plaintiff had reportedly been “see[ing] [an]other ortho” (presumably Dr. Echenique), who had indicated to her that she had “ACL and meniscus tears with advanced [osteoarthritis], ” but that Plaintiff wanted “to have another opin[ion]” and to discuss “possible [knee] replacement or diff[erent] options.” (Id.; see also Id. at 221.) Further, Dr. Cushner noted that Plaintiff reported having undergone physical therapy, as well as having received injections in November 2017. (See id.) On examination, Dr. Cushner recorded that Plaintiff had joint pain and swelling, as well as “significant DJD, varus alignment [and] medial joint space loss” in the left knee. (Id. at 221-22.) He assessed Plaintiff with “[p]rimary osteoarthritis of [the] left knee, ” and he made a surgical plan for a total knee replacement due to Plaintiff's “ACL symptoms along with the DJD.” (Id. at 222.)
Pain in the knee “can often be caused by bowlegs (varus deformity).” Realignment of Bowleg and Knock Knee Deformities, Hospital for Special Surgery, https://www.hss.edu/limb-lengthening-realignment-knee-deformities.asp (last accessed Feb. 11, 2022).
Plaintiff underwent a total knee replacement on February 16, 2018, with the surgery apparently performed by Dr. Cushner. (See Id. at 242-43.) In follow up appointments in April and June 2018, Dr. Cushner recorded that Plaintiff was ambulating with a cane and displayed some “stiffness” in the “quad tendon, ” but otherwise was “improving well without any signs of concern.” (Id. at 230-31.) In December 2018, Dr. Cushner filled out a one-page form, addressed “To Whom It May Concern, ” stating that Plaintiff had last been seen on December 11, 2018, and was “released to return to work as of” January 2, 2019. (Id. at 234.) In the “Additional comments” portion of the form, however, Dr. Cushner wrote, without further explanation: “No heavy lifting, lift as tolerated.” (Id.) It appears that Dr. Cushner never completed a Medical Source Statement regarding Plaintiff's physical condition or provided a full function-by-function assessment of her exertional limitations. (See generally R.)
2. Medical Opinion Evidence
a. Partial Functional Assessment of Physical Condition (Questionnaire) From Unidentified Treating Source
Apart from the brief December 2018 note by Dr. Cushner, described above, the Record contains little medical opinion evidence from a treating source, and none that can be fairly traced to a particular treating physician. The only specific functional assessment in the Record from one of Plaintiff's treaters is the 2017 partial response to a physician questionnaire mentioned above, which, based on the Index of the documents in the Record, the SSA apparently recorded as having been received from Hudson Valley Radiology. (See id. at 210; see also Court Transcript Index (Dkt. 17), at ECF 3). That document consists of a single page (titled “Second Page”); it is unsigned; and, on its face, it does not identify the physician (assuming it was a physician) who filled out the submitted portion of the form. (R. at 210.)
The single produced page of the questionnaire identifies Plaintiff's “first known date of illness/injury” as September 11, 2017, and it indicates that Plaintiff was first examined on that date and last examined on October 23, 2017. (Id.) Although the document does not provide the date on which the questionnaire responses were prepared, it appears to have been signed by Plaintiff (in order to permit the release of medical information necessary to answer the questions included in the questionnaire) on November 2, 2017. (Id.)
This Court notes that, while these dates would have fallen within the period of time that Plaintiff was reportedly under the care of Dr. Echenique, they are inconsistent with Plaintiff's report that she was first seen by Dr. Echenique in 2016 (see R. at 150), creating uncertainty as to whether the questionnaire may have been filled out by Dr. Echenique.
The document also contains an unexplained “mail date” of October 19, 2017 (see R. at 210), which could not be the date when it was mailed by the provider to the SSA, given that the document also reflects that Plaintiff had last been seen by the provider on October 23, 2017 (id.).
As for its contents, the document does not reference any radiological studies, calling into question whether it was actually prepared by a physician with Hudson Valley Radiology; rather, it provides at least a partial assessment of Plaintiff s exertional capacities. Specifically, the single produced page notes a diagnosis of left-knee pain, and it includes a chart (reproduced below in relevant part), assessing Plaintiff as having the following significant limitations in at least her ability to lift, carry, and push or pull:
Physical Activity
Avoid
Some Limitations 0-10 lbs. 10-20 lbs. 20-50 lbs. 50-100 lbs.
No. Limitation
Lifting
✓
✓
Carrying
✓
✓
Pushing/Pulling
✓
✓
(Id.)
b. Consultant Reports
i. Internal Medicine Consultative Examiner (Dr. Carol McLean Long, Internal Medicine Specialist)
On January 2, 2018 (a month and a half before Plaintiffs knee replacement surgery), Plaintiff met with Dr. Carol McLean Long, an internal medicine specialist, for a consultative examination. (See Id. at 212-15.) Dr. McLean Long noted that Plaintiff had chiefly complained of “pain in the left knee, osteoarthritis, and a torn ACL and meniscus.” (Id. at 212.) Dr. McLean Long recorded that Plaintiff had described her pain as follows:
[Pain] is chronic in the right knee 2 to 3/10, and the left knee at 5 to 9/10. It becomes a 10 and over when it swells. Sometimes when [Plaintiff] gets the swelling, she gets pain from the foot all the way up to the thigh, especially when she is sleeping.(Id.) As for mobility, Plaintiff reported to Dr. McLean Long that she could “walk three to four blocks, 20 minutes, sit 30 to 40 minutes, stand 10 to 20 minutes, [and] go up to the fourth floor” of her building. (Id.) Plaintiff reportedly stated that she could independently cook, clean, do laundry, shop, shower, bathe, and dress herself. (See id.)
On examination, Dr. McLean Long found that Plaintiff appeared to be in mild distress; had a “slow normal” gait; could walk on heels and toes with mild difficulty; could squat only 1/4 to 1/2 of the full range; had a “normal” station; had not been using an assistive device; was able to rise from a chair without difficulty; and could get on and off the exam table. (Id. at 213.) Dr. McLean Long noted that Plaintiff's flexion and extension in the thoracic and lumbar spines was “approximately 60 to 70 degrees, ” and that the “[straight leg raise] test [was] negative in the supine and sitting position, but slower on the left secondary to knee pain.” (Id.) With respect to Plaintiff's lower extremities, Dr. McLean Long found there was “full” but “slow” range of motion at Plaintiff's ankles and hips, and that “[f]lexion and extension of [her] knee on the left [was] approximately 90 to 100 degrees [while] on the right [it was] about 120 to 130 degrees.” (Id.)
“The straight leg raise test, also called the Lasegue test, is a fundamental maneuver during the physical examination of a patient with lower back pain. It aims to assess for lumbosacral nerve root irritation. This test can be positive in a variety of conditions.” Straight Leg Raise Test, National Center for Biotechnology Information Bookshelf, https://www.ncbi.nlm.nih.gov/books/NBK539717/#:~:text=The%20straight%20leg%20raise%20 test, herniation%20is%20the%20most%20common (last accessed Feb. 11, 2022).
Dr. McLean Long assessed Plaintiff as having a “[h]istory of injury with bilateral knee pain, left greater than right, ” a “[h]istory of left knee osteoarthritis, [a] torn [ACL] and meniscal tear, ” and a “[r]ight knee with patellar damage”; and she further noted that Plaintiff was overweight. (Id. at 214.) In the portion of her report titled “Medical Source Statement, ” Dr. McLean Long opined that Plaintiff had a “mild to moderate limitation in [her] ability to walk, to walk on the heels and toes, to squat, and to flex and extend the [lumbosacral] spine, the hips, and the knees bilaterally, ” and she assessed Plaintiff's prognosis as “fair.” (Id. at 214-15.)
ii. SSA Records Examiner (Dr. I. Seok, Internal Medicine Specialist)
The SSA also requested an opinion from Dr. I. Seok, who, on February 21, 2018, reviewed the then-available evidence, without examining Plaintiff personally. (See Id. at 55-64.) Upon reviewing Plaintiff's medical records, Dr. Seok noted that Plaintiff had the medically determinable impairment of “Dysfunction - Major Joints” (id. at 56-57), which caused her “pain” and certain exertional limitations (see id.). More particularly, Dr. Seok opined, inter alia, that Plaintiff could only “occasionally” (meaning, for a total of 1/3 or less of an eight-hour work day) lift and/or carry 20 pounds; could “frequently” (meaning, for a total of 1/3 to 2/3 of an eight-hour work day) lift and/or carry 10 pounds; could stand and/or walk (with normal breaks) for a total of six hours in an eight-hour work day; could sit (with normal breaks) for a total of six hours in an eight-hour work day; and could, without limit, push and/or pull (including by operating hand and/or foot controls), subject to the above-described lift/carry limitations. (Id. at 59.) Dr. Seok then opined that “all potentially applicable Medical-Vocational Guidelines would direct a finding of ‘not disabled' given [Plaintiff's] age, education, and RFC.” (Id. at 60.)
C. Plaintiff's Subjective Complaints
1. Plaintiff's Function Report
On December 21, 2017, Plaintiff completed a form “Function Report” in connection with her claims for benefits. (Id. at 153-65.) In that report, Plaintiff wrote that she was experiencing “swelling, throbbing of the knee, [and] shooting pain going up and [down] her leg, ” and that those symptoms were affecting her sleep. (Id. at 157.) She noted that it was “[v]ery hard [for her] to bend, to clean the tub, or lift heavy things.” (Id. at 160.) More specifically, she reported that she could “only lift about 10 pounds”; she could not stand for a long period of time; she could walk for about one hour before her leg - particularly her left leg - stiffened and throbbed; she could not sit down for long periods of time without pain; she could not kneel; and it hurt to squat. (Id. at 161.) Overall, she stated that her activities were “very limited” and that her pain had changed “dramatically” in the past year, as she felt it every day “from [the] knee to [her] foot and back again.” (Id. at 164.)
2. Plaintiff's Testimony before the ALJ
As noted above, Plaintiff appeared with counsel and testified at the Hearing, and she responded to questions posed to her by the ALJ regarding her symptoms, physical limitations, and activities of daily living. (See Id. at 31-45.) As relevant here, Plaintiff testified that, although the left knee replacement had repaired her “torn ligaments, ” her pain continued, as, post-surgery, she experienced “swelling and . . . stiffness, ” which sometimes caused her knee to “buckle[]” while walking. (Id. at 38.) She also testified that she had trouble sleeping and that her “nerves [were] still not intact, ” which caused her to have “no feeling on [her] left side.” (Id. at 40-41.)
D. The Current Action and the Motions Before the Court
Represented by counsel, Plaintiff filed a Complaint in this action on July 27, 2020 challenging the decision of the Commissioner, denying her SSDI and SSI benefits. (See Complaint, dated July 27, 2020 (“Compl.”) (Dkt. 1).) Plaintiff maintained in her Complaint that she was entitled to receive SSDI and SSI benefits because of her impairments, claiming that the ALJ's decision, as affirmed by the Appeals Council, was “erroneous, not supported by substantial evidence on the record, and/or contrary to the law” (id. ¶ 10).
On June 1, 2021, Plaintiff filed a motion for judgment on the pleadings in her favor (Dkt. 20), advancing one central argument: that the ALJ committed legal error by failing to take adequate steps to develop the Record and that this error was not harmless. (See generally Pl. Mem.) In particular, Plaintiff contended that the SSA regulations required the ALJ to develop a complete medical record before making the disability determination, but that the ALJ failed to do so here, by making no attempt to obtain (1) a complete copy of the 2017 physician questionnaire, which, in the portion that had been provided, indicated that Plaintiff had certain carrying/lifting limitations that were potentially incompatible with the ALJ's RFC; or (2) any treatment notes from the fall of 2017. (See id, at 9.)
On July 28, 2021, Defendant filed a cross-motion for judgment on the pleadings affirming the Commissioner's decision. (Dkt. 23.) In opposition to Plaintiffs motion and in support of the cross-motion, Defendant contended that the underlying decision of the ALJ was legally correct and supported by substantial evidence. (See generally Def Mem.) Specifically, Defendant argued that the ALJ (1) adequately developed the Record, (2) properly weighed the medical opinion evidence, and (3) in making the RFC determination, accounted for Plaintiffs documented limitations. (See id, at 13-20.)
On August 18, 2021, Plaintiff filed a reply memorandum, reiterating her central contention that the ALJ committed reversible legal error by failing to develop the Record. (See Plaintiffs Reply in Support of [Her] Motion for Judgment on the Pleadings, dated Aug. 18, 2021 (“Pl. Reply”) (Dkt. 25).) On reply, Plaintiff emphasized that the ALJ had found that the opinions expressed in the 2017 physician questionnaire were “not persuasive, ” not only because the document showed no signature, but also because “the [R]ecord d[id] not contain contemporary treatment notes containing clinical examination or treatment” for the October-November 2017 period. (Id., at 2.) According to Plaintiff, “[i]t [was] entirely unclear” how the opinions stated in the questionnaire were “not supported by contemporary treatment notes when the [R]ecord did not include any [such] notes” in the first place. (Id.) In this regard, Plaintiff maintained that the ALJ's failure to develop the Record materially impacted her disability determination, requiring remand.
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
A. Judgment on the Pleadings
Judgment on the pleadings under Rule 12(c) is appropriate where “the movant establishes ‘that no material issue of fact remains to be resolved, '” Guzman v. Astrue, No. 09cv3928 (PKC), 2011 WL 666194, at *6 (S.D.N.Y. Feb. 4, 2011) (quoting Juster Assocs. v. City of Rutland, Vt., 901 F.2d 266, 269 (2d Cir. 1990)), and a judgment on the merits can be made “‘merely by considering the contents of the pleadings, '” id. (quoting Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988)).
Judicial review of a decision of the Commissioner is limited. The Commissioner's decision is final, provided that the correct legal standards are applied, and findings of fact are supported by substantial evidence. 42 U.S.C. § 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). “[W]here an error of law has been made that might have affected the disposition of the case, [a] court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (citation omitted)). Thus, the first step is to ensure that the Commissioner applied the correct legal standards. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
The next step is to determine whether the Commissioner's decision is supported by substantial evidence. See Tejada, 167 F.3d at 773. Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation and quotation marks omitted). In making this determination, a court must consider the underlying record. The reviewing court does not, however, decide de novo whether a claimant is disabled. See Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002) (“Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, we will not substitute our judgment for that of the Commissioner.”); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997). Thus, if the correct legal principles have been applied, this Court must uphold the Commissioner's decision upon a finding of substantial evidence, even where contrary evidence exists. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to support either position, the determination is one to be made by the factfinder.”); see also DeChirico v. Callahan, 134 F.3d 1177, 1182-83 (2d Cir. 1998) (affirming decision where substantial evidence supported both sides).
B. The Five-Step Sequential Evaluation
In evaluating a disability claim, an ALJ must follow the five-step procedure set out in the regulations governing the administration of Social Security benefits. See 20 C.F.R. §§ 404.1520, 416.920; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). Throughout the inquiry, the ALJ must consider four primary sources of evidence: “(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience.” Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (citations omitted).
The first step of the inquiry requires the ALJ to determine whether the claimant is engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If not, at the second step, the ALJ determines whether the claimant has a “severe” impairment or combination of impairments that significantly limits his or her physical or mental ability to do basic work activities. Id. §§ 404.1520(a)(4)(ii), (c); id. §§ 416.920(a)(4)(ii), (c). If the claimant does suffer from such an impairment, then the third step requires the ALJ to determine whether this impairment meets or equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the “Listings”). Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If it does, then the claimant is presumed to be disabled “without considering [the claimant's] age, education, and work experience.” Id. §§ 404.1520(d), 416.920(d).
If the claimant's impairment does not meet or equal a listed impairment, then the ALJ must determine, based on all the relevant evidence in the record, the claimant's RFC, or ability to perform physical and mental work activities on a sustained basis. Id. §§ 404.1545, 416.945. The ALJ then proceeds to the fourth step of the inquiry, which requires the ALJ to determine whether the claimant's RFC allows the claimant to perform his or her “past relevant work.” Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Finally, if the claimant is unable to perform his or her past relevant work, the fifth step requires the ALJ to determine whether, in light of the claimant's RFC, age, education, and work experience, the claimant is capable of performing “any other work” that exists in the national economy. Id. §§ 404.1520(a)(4)(v), (g); id. §§ 416.920(a)(4)(v), (g).
On the first four steps of the five-step evaluation, the claimant generally bears the burden of establishing facts to support her claim. See Berry, 675 F.2d at 467. At the fifth step, the burden shifts to the Commissioner to “show that there is work in the national economy that the claimant can do.” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). The Commissioner must establish that the alternative work “exists in significant numbers” in the national economy and that the claimant can perform this work, given his or her RFC and vocational factors. 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2). Where the claimant only suffers from exertional impairments, the Commissioner can satisfy this burden by referring to the Medical-Vocational Guidelines (commonly referred to as the “Grids”), set out in 20 C.F.R. Pt. 404, Subpt. P, App. 2.
C. The ALJ's Duty To Develop the Record
“Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record, ” Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)), and failure to develop the record may be grounds for remand, Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999); accord Craig v. Comm'r of Soc. Sec, 218 F.Supp.3d 249, 262 (S.D.N.Y. 2016) (noting that “[r]emand is appropriate where this duty is not discharged”). Indeed, “where there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history ‘even when the claimant is represented by counsel.'” Rosa, 168 F.3d at 79 (quoting Perez, 77 F.3d at 47).
The SSA regulations explain this duty to claimants in this way:
Before we make a determination that you are not disabled, we will develop your complete medical history . . . [and] will make every
reasonable effort to help you get medical evidence from your own medical sources . . . when you give us permission to request the reports. . . . [‘]Every reasonable effort['] means that we will make an initial request for evidence from your medical source or entity that maintains your medical source's evidence, and, at any time between 10 and 20 calendar days after the initial request, if the evidence has not been received, we will make one follow-up request to obtain the medical evidence necessary to make a determination.20 C.F.R. §§ 404.1512(b)(1); 416.912(b)(1). “[I]f the documents received lack any necessary information, the ALJ should recontact the treating physician.” Oliveras ex rel. Gonzalez v. Astrue, No. 07cv2841 (RMB) (JCF), 2008 WL 2262618, at *6 (S.D.N.Y. May 30, 2008), report and recommendation adopted, 2008 WL 2540816 (June 25, 2008). The ALJ also has the authority to subpoena medical evidence on behalf of the claimant, 42 U.S.C. § 405(d), but is not required to subpoena medical records if they are not received following two ordinary requests, Gonell De Abreu v. Colvin, No. 16cv4892 (BMC), 2017 WL 1843103, at *5 (E.D.N.Y. May 2, 2017); see 20 C.F.R. §§ 404.950(d); 416.1450(d)(1).
The SSA regulations further explain that a claimant's “complete medical history” means:
the records of your medical source(s) covering at least the 12 months preceding the month in which you file your application. If you say that your disability began less than 12 months before you filed your application, we will develop your complete medical history beginning with the month you say your disability began.20 C.F.R. §§ 404.1512(b)(1)(ii); 416.912(b)(1)(ii)).
If the information obtained from medical sources is insufficient to make a disability determination, or if the ALJ is unable to seek clarification from treating sources, the regulations also provide that the ALJ should ask the claimant to attend one or more consultative evaluations. Id. §§ 404.1512(b)(2); 416.912(b)(2). Where, however, there are no “obvious gaps” in the record and where the ALJ already “possesses a ‘complete medical history, '” the ALJ is “under no obligation to seek additional information in advance of rejecting a benefits claim.” Rosa, 168 F.3d at 79 n.5.
The question of “[w]hether the ALJ has met [her] duty to develop the record is a threshold question. Before reviewing whether the Commissioner's final decision is supported by substantial evidence . . . the court must first be satisfied that the ALJ provided plaintiff with a full hearing under the Secretary's regulations and also fully and completely developed the administrative record.” Craig, 218 F.Supp.3d at 261-62 (internal quotation marks and citations omitted); see also 42 U.S.C. § 405(g). Further, the court must satisfy itself that the administrative record has been adequately developed, regardless of whether the issue is raised by the plaintiff. See Castillo v. Comm'r of Soc. Sec., No. 17cv09953 (JGK) (KHP), 2019 WL 642765, at *7 (S.D.N.Y. Feb. 15, 2019) (noting that, even where the plaintiff does not argue that an ALJ failed to develop the record, the court “is nevertheless obliged to conduct its own independent assessment of whether the ALJ properly discharged this duty”).
D. Evaluation of Medical Opinion Evidence
For SSI and SSDI applications filed prior to March 27, 2017, SSA regulations dictated that an ALJ was to give more weight to the opinions of those physicians with the most significant clinical relationship with the plaintiff. See 20 C.F.R. §§ 404.1527, 416.1527; see also, e.g., Taylor v. Barnhart, 117 Fed.Appx. 139, 140 (2d Cir. 2004) (Summary Order). Under this “treating physician rule, ” an ALJ was required to “give good reasons” if he or she determined that a treating physician's opinion was not entitled to “controlling weight, ” or, at least, “more weight” than the opinions of non-treating and non-examining sources. Gonzalez v. Apfel, 113 F.Supp.2d 580, 589 (S.D.N.Y. 2000). Further, under that same rule, a consultative physician's opinion was generally entitled to “little weight.” Giddings v. Astrue, 333 Fed.Appx. 649, 652 (2d Cir. 2009) (Summary Order).
On January 18, 2017, however, the SSA published comprehensive revisions to its regulations regarding the evaluation of medical evidence, applicable to benefits applications filed on or after March 27, 2017 (such as Plaintiff's benefits claims in this case). See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01 (Jan. 18, 2017) (available at 2017 WL 168819). In implementing new regulations, the SSA apparently sought to move away from a perceived hierarchy of medical sources. See 82 Fed.Reg. 5844. Thus, the new regulations state that an ALJ need “not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.1520c(a). Instead, an ALJ is to consider all medical opinions in the record and “evaluate their persuasiveness” based on the following five “factors”: (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) any “other” factor that “tend[s] to support or contradict a medical opinion.” Id. §§ 404.1520c(a)-(c), 416.920c(a)-(c). Despite the requirement to “consider” all of these factors, the ALJ's duty to articulate a rationale for each factor varies. Id. §§ 404.1520c(a)-(b), 416.1520c(a)-(b).
Under the new regulations, a “prior administrative medical finding” is defined as:
a finding, other than the ultimate determination about whether you are disabled, about a medical issue made by our Federal and State agency medical and psychological consultants at a prior level of review (see § 404.900) in your current claim based on their review of the evidence in your case record, such as: (i) The existence and severity of your impairment(s); (ii) The existence and severity of your symptoms; (iii) Statements about whether your impairment(s) meets or medically equals any listing in the Listing of Impairments in Part 404, Subpart P, Appendix 1; (iv) Your residual functional capacity; (v) Whether your impairment(s) meets the duration requirement; and (vi) How failure to follow prescribed treatment (see § 404.1530) and drug addiction and alcoholism (see § 404.1535) relate to your claim.20 C.F.R. §§ 404.1513(a)(5), 416.913(a)(5).
More specifically, under the new regulations, the ALJ must “explain, ” in all cases, “how [he or she] considered” both the supportability and consistency factors, as they are “the most important factors.” Id. §§ 404.1520c(b)(2), 416.1520c(b)(2); see Amber H. v. Saul, No. 3:20-CV-490 (ATB), 2021 WL 2076219, at *4 (N.D.N.Y. May 24, 2021) (noting that the two “most important factors for determining the persuasiveness of medical opinions are consistency and supportability, ” which are the “same factors” that formed the foundation of the treating physician rule). For supportability, “the strength of the medical opinion increases as the relevance of the objective medical evidence and explanations presented by the medical source increase.” Vellone v. Saul, No. 20cv261 (RA) (KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021) (citing 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1)). Consistency, on the other hand, “is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record.” Id. (citing 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2)); see generally 42 U.S.C. § 423(d)(5)(B) (governing SSA statute that requires an ALJ to base the decision on “all the evidence available in the [record]”).
In addition, under the new regulations, see 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2), the ALJ is required to consider, but need not explicitly discuss, the three remaining factors (i.e., relationship with the claimant, specialization, and “other”) in determining the persuasiveness of a medical source's opinion. Where, however, the ALJ has found two or more medical opinions to be equally supported and consistent with the record, but not exactly the same, the ALJ must articulate how he or she considered those three remaining factors. See Id. §§ 404.1520c(b)(3), 416.920c(b)(3).
Notably, district courts in this Circuit that have been “presented with these [new] regulations have concluded that the factors are very similar to the analysis under the old [treating physician] rule.” Dany Z. v. Saul, No. 2:19-CV-217, 2021 WL 1232641, at *11 (D. Vt. Mar. 31, 2021) (citing Cuevas v. Comm'r of Soc. Sec., No. 20cv0502 (AJN) (KHP), 2021 WL 363682, at *9 (S.D.N.Y. Jan. 29, 2021) (surveying Second Circuit district court level cases considering the new regulations and concluding that they show that “the essence” of the treating physician rule “remains the same, and the factors to be considered in weighing the various medical opinions in a given claimant's medical history are substantially similar”)). As another court in this District explained, “[t]his is not surprising[, ] considering that, under the old rule, an ALJ had to determine whether a treating physician's opinion was supported by well-accepted medical evidence and not inconsistent with the rest of the record before controlling weight could be assigned.” Cuevas, 2021 WL 363682, at *9 (emphasis in original); see also Andrew G. v. Comm'r of Soc. Sec., No. 3:19-CV-0942 (ML), 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (noting that “consistency and supportability” were “the foundation of the treating source rule”); see, e.g., Brianne S. v. Comm'r of Soc. Sec., No. 19-cv-1718-FPG, 2021 WL 856909, at *5 (W.D.N.Y. Mar. 8, 2021) (remanding to the ALJ with instructions to provide an explicit discussion of the supportability and consistency of two medical opinions and explaining that an ALJ may not merely state that an examining physician's opinion is not consistent with the overall medical evidence).
Although it is not yet clear how much the new regulations regarding the weighing of medical opinion evidence may affect other aspects of the body of Second Circuit law that has developed with respect to Social Security appeals, this Court joins other courts in this District in concluding that other, longstanding general principles of judicial review still apply to cases with benefits claims that were filed on or after March 27, 2017. See, e.g., Cuevas, 2021 WL 363682, at *15 (determining that the well-settled principle in this Circuit that an ALJ “cannot ignore or mischaracterize evidence” applied “equally to the ALJ's mandatory explanation of the new consistency factor, ” and, thus, holding that the ALJ committed legal error by failing to satisfy that principle). Certainly, nothing in the new regulations should obviate the ALJ's obligation to develop the Record, see, e.g., Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citation omitted), to consider “all of the relevant medical and other evidence, ” 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3), and to refrain from substituting his or her own lay opinion for that of medical professionals, see, e.g., Merriman v. Comm'r of Soc. Sec, No. 14cv3510 (PGG) (HBP), 2015 WL 5472934, at *18 (S.D.N.Y. Sept. 17, 2015) (adopting report and recommendation).
II. THE ALJ'S DECISION
On June 24, 2019, ALJ Schiro issued her decision, finding that Plaintiff was not under a disability for purposes of the Act and did not qualify for SSDI and SSI benefits. (R. at 21.) In rendering this decision, the ALJ applied the required five-step sequential evaluation. (See id.)
A. Steps One Through Three of the Sequential Evaluation
At Step One, the ALJ determined that Plaintiff met the “insured status” requirements of the Act (and would continue to do so, up to December 31, 2023), and that she had not engaged in substantial gainful activity since July 27, 2017, the onset date of her alleged disability. (Id. at 15.) At Step Two, the ALJ found that Plaintiff had the severe impairments of bilateral knee derangement (status-post left total knee replacement) and obesity. (Id. at 16 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)).) At Step Three, the ALJ determined that those impairments did not “meet or medically equal the criteria of a medical listing.” (Id.)
B. The ALJ's Assessment of Plaintiff's RFC
Next, the ALJ determined that Plaintiff had the RFC to perform “the full range of sedentary work” as defined in 20 C.F.R. §§ 404.1567(a), 416.967(a). (Id.) In making this RFC determination, the ALJ found, as a general matter, that Plaintiff had medically determinable impairments that “could reasonably be expected to cause the alleged symptoms, ” but that her “statements concerning the intensity, persistence[, ] and limiting effects of these symptoms” were “not entirely consistent with the medical evidence and other evidence in the [R]ecord” and, ultimately, with the RFC assessment that the ALJ had developed based on that evidence. (Id. at 17.)
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a); 416.967(a).
As relevant here, the ALJ explained that, although Plaintiff's “knee degeneration and pain [did] impose some physical functional limitations[, ] . . . clinical examination reports describe[d] sufficient strength and mobility to sustain the limited demands of sedentary work.” (Id.) While recognizing that Plaintiff “may have been further limited in the period immediately following” her surgery, the ALJ noted that, in her view, the medical evidence “describe[d] sufficient recovery from surgery such that there was no continuous period of a minimum duration of at least [12] months during which [Plaintiff's] [RFC] was further reduced.” (Id.) Furthermore, although the ALJ acknowledged that the Record contained MRI reports from October 2017, which “describe[d] degenerative changes in both knees including torn [ACLs], ” the ALJ pointed out that the Record before her “d[id] not contain contemporaneous treatment notes containing clinical examination or treatment, ” nor did Plaintiff “undergo surgery at that time.” (Id.) Thus, the ALJ stated that the “limited” medical evidence “of examination and treatment” did not “establish substantial functional limitations at the alleged onset date” of July 27, 2017 (id.), or presumably in the months immediately thereafter.
Turning to the medical opinion evidence, the ALJ first considered the January 2018 report of Dr. McLean Long, wherein Plaintiff was found to have “mild to moderate limitations in her ability to walk and perform range of motion activities.” (Id. at 19.) According to the ALJ, that report was “persuasive” as it was “well-supported by [Dr. McLean Long's] narrative report and physical examination” of Plaintiff, as well as by the fact that the Record did not “contain contemporary treatment notes that [were] inconsistent with [Dr. McLean Long's] opinion.” (Id.)
Next, the ALJ turned to the partial physician questionnaire (from either October or November 2017), which described Plaintiff as being unable to lift, carry, push, or pull 10 pounds, or suggested that she should avoid altogether the activities of lifting, carrying, pushing, and pulling. (See id.) The ALJ determined that this report was not “persuasive” because it “appear[ed] incomplete, ” had “not been “signed by a physician or other provider, ” and had not been “supported by contemporary treatment notes.” (Id.)
Although Dr. Cushner, the surgeon who performed Plaintiff's left knee replacement, did not submit a formal Medical Source Statement or function-by-function assessment (see R.), the ALJ went on to consider Dr. Cushner's one-page December 11, 2018 “opinion” that Plaintiff would be “released to work as of January 2, 2019” and “could not perform heavy lifting and should lift as tolerated.” (Id.) According to the ALJ, although Dr. Cushner's statement about Plaintiff's work release date could not be credited, his opinion on Plaintiff's ability to lift was “well-supported” by his own “treatment notes describing [Plaintiff's] knee degeneration.” (Id.)
Lastly, as to the opinions of Dr. I. Seok, the SSA's consultant records reviewer, the ALJ concluded that those opinions were “only partially persuasive.” (Id. at 20.) On this point, the ALJ expressed the view that, although Dr. Seok had opined that Plaintiff could perform “light work, ” Dr. McLean Long's description of Plaintiff s “difficulties with gait and strength” better “supported] an additional limitation to sedentary work.” (Id.)
C. Steps Four and Five of the Sequential Evaluation
At Step Four, the ALJ found that Plaintiff was unable to perform any of her past relevant work. (Id.) At Step Five, the ALJ found that Plaintiff was able to perform “jobs that exist[ed] in significant numbers in the national economy” during the relevant period. (Id. at 20-21.) In making this determination, the ALJ considered Plaintiffs age, education, work experience, and RFC, noting specifically that Plaintiff was a younger individual, and that transferability of job skills was “not material to the determination because using the Medical-Vocational Rules as a framework directly supported] a finding that [Plaintiff was] ‘not disabled,' whether or not [she] ha[d] transferable job skills.” (Id. at 20.) Based on the Grids, the ALJ concluded that Plaintiff had not been under a disability, as defined under the Act, from July 27, 2017 (the alleged onset date of her disability) through June 24, 2019 (the date of the decision). (Id. at 21.)
As set out above, Plaintiff was 32 years old at the alleged disability onset date, making her a “younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c), which defines such a person as being under 50 years of age. (Id.) Under those regulations, the Commissioner considers that the ability of those who are younger than 50 years to adjust to other work is not seriously limited. (See id.)
III. REVIEW OF THE ALJ'S DECISION
As the ALJ used the applicable five-step evaluation in analyzing Plaintiffs disability claims, the initial question before this Court is whether, in proceeding under this accepted protocol, the ALJ made any errors of law that might have affected the disposition of Plaintiff s claims. If the ALJ did not commit legal error, then the Court must go on to determine whether the ALJ's determination that Plaintiff was not disabled was supported by substantial evidence.
Upon review, this Court finds that the ALJ did commit legal errors that might have affected the outcome of Plaintiff's benefit claims. Essentially, this Court agrees with Plaintiff that the ALJ failed to develop the Record adequately before issuing her written decision, given that the Record contained “obvious gaps” with respect to the completeness of both the 2017 physician questionnaire and Plaintiff's underlying treatment records from 2017. This Court also notes that, before issuing her decision, the ALJ should have sought clarification from Dr. Cushner regarding Plaintiff's exertional limitations. As, in light of the ALJ's stated reasoning, these errors cannot be said to have been harmless, this Court recommends that this matter be remanded for further administrative proceedings.
A. The ALJ's Failure To Develop the Record
1. The ALJ Should Have Taken Steps To Obtain a Complete Copy of the Physician Questionnaire, as Well as Plaintiff's Treatment Records From 2017.
As the parties concede (see Pl. Mem., at 9; Def. Mem., at 17-18), and as set out above, an ALJ has an affirmative duty to develop the record, even where the plaintiff is counseled, and failure to do so is grounds for remand. See Rosa, 168 F.3d at 79-82. This duty extends to a plaintiff's treatment records, as well as to a treater's medical opinion. Hooper v. Colvin, 199 F.Supp.3d 796, 812 (S.D.N.Y. 2016). Indeed, “[a]lthough an ALJ need not defer to the opinions of a claimant's treating sources under the [SSA's] new regulations, the new regulations do not lessen an ALJ's duty to develop the record.” Gene L. v. Comm'r of Soc. Sec., No. 2:20-CV-00152-CR, 2022 WL 178968, at *6 (D. Vt. Jan. 20, 2022); see, e.g., Acosta Cuevas, 2021 WL 363682, at *11 (in a post-treating-physician-rule case, recommending remand where the ALJ fell “well short of [his] duty to develop at least a [12-]month period of [the] plaintiff's medical history”).
Here, there were obvious gaps in the medical record that was before the ALJ, gaps that the ALJ herself noted at the Hearing and that were material to her decision. Certainly, with respect to 2017, the physician questionnaire that addressed Plaintiff's exertional limitations and appeared to have been filled out within months of the alleged onset of Plaintiff's disability was unsigned and plainly incomplete. (See R. at 210.) Further, although Plaintiff reported that she had been seen by an orthopedist (Dr. Echenique) throughout 2017, the Record contained none of Dr. Echenique's treatment records.
At the start of the Hearing, Plaintiff's counsel pointed out, to the ALJ, the partial questionnaire responses, and the ALJ recognized that only one page of the responses had been provided. (See Id. at 30.) Upon inquiry by the ALJ, Plaintiff's counsel further indicated that the document appeared to have been provided by Hudson Valley Radiology, but noted that it had not been signed by a particular doctor. (Id. at 30-31.) The ALJ seemed to accept that Hudson Valley Radiology was the source of the document, without any analysis as to whether it even made sense for a radiologist to have given an opinion as to Plaintiff's exertional impairments:
ATTY: . . . And there's a treating source statement, more or less, in 1-F, page 6, from November of '17, which limited [Plaintiff] to lifting, carrying, and pushing/pulling no more than ten pounds.
ALJ: Okay. Who's that from?
ATTY: This is, let's see -
ALJ: It's only one page?
ATTY: Yeah, it's that last page.
ALJ: Yeah.
ATTY: Hudson Valley Radiology.
ALJ: Is that just the radiologists?
ATTY: Basically, yeah.
ALJ: Yeah, probably? Okay.
ATTY: Yeah, I think all the records that - well, it's - yeah. I think they're all -
ALJ: That whole -
ATTY: - radiologists.
ALJ: That source is all from that -
ATTY: It doesn't - it's not signed by a particular -
ALJ: Yeah.
ATTY: - doctor. But it's from whoever was -
ALJ; Provided from that office.
ATTY: - providing her -
ALJ; Okay.
ATTY: - yeah.
ALJ: Okay. All right, thank you.(Id.)
Although the ALJ acknowledged, in her decision, that she did not have a complete copy of the questionnaire, it appears that she made no effort to obtain it, in violation of her duty to do so under the applicable regulations. See 20 C.F.R. §§ 404.1512(b)(1)(i-ii); 416.912(b)(1)(i-ii) (requiring the ALJ to make at least two requests to retrieve a medical source's evidence for the period at issue). Nor does it appear that the ALJ made any effort to determine who had filled out the questionnaire, and whether, in light of that provider's specialty and history of treating Plaintiff - or any other relevant factors the ALJ was required to consider - any deference should be accorded to that provider's opinion. See 20 C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c).
Moreover, although one of the reasons given by the ALJ for her decision to disregard the opinions stated in the questionnaire was that they were “not supported by contemporary treatment notes” (R. at 19), the fact is that the Record contained no contemporary treatment notes, such that the ALJ could not have determined whether the opinions stated in the questionnaire were, or were not, supported by such treatment records. The ALJ herself recognized that the 2017 treatment notes were missing from the Record, when she observed that the October 2017 MRI reports were not accompanied by any “contemporary treatment notes containing clinical examination or treatment.” (Id. at 17.) Yet, despite this - and despite the fact that (a) Plaintiff had stated in her Disability Report that, as of December 2017, she had been seen for at least a year by Dr. Echenique, an orthopedist, and that he might have been in possession of treatment records (id. at 150), (b) Dr. Echenique was identified as the referring physician in the 2017 MRI reports, and (c) Dr. Cushner's later notes indicated that Plaintiff had been seeing another “ortho” specialist prior to January 2018 (see Id. at 207-08, 219) - it appears that the ALJ took no steps to obtain Dr. Echenique's records.
Instead, based on the colloquy contained at the end of the Hearing transcript, it appears that the ALJ relied entirely on Plaintiff's counsel to secure any missing medical records from 2017, and to provide them to the ALJ:
ATTY: And so basically, without the records, I'd have a difficult time arguing a whole lot to you, other than probably meeting a listing for, maybe, a closed period.
ALJ: Okay.
ATTY: But I don't have a date, because I don't -
ALJ: Right.
ATTY: - have the records.
ALJ: Right.
ATTY: So maybe once I get the records, I may -
ALJ: Okay.
ATTY: - write you a letter and just request a -
ALJ: Sure.
ATTY: - closed period?
ALJ: Sure. Okay.
ATTY: 'Cause I think, at least, during that period of time, up to the surgery and, maybe, a little recovery time -
ALJ: Okay.
ATTY: - that she probably meets a listing.
ALJ: Okay. Very good.
ATTY: Okay.
ALJ: So we'll await these records from your doctor, and whatever your attorney wants to submit. And then I'm going to issue a decision . . . .(Id. at 44-45.)
This was insufficient. Although Defendant argues that “the ALJ fulfilled her duty to develop the record by identifying the fact that the signature page was missing from the November 2017 opinion and by allowing Plaintiff, who was represented by counsel, time to submit additional records after the [H]earing” (Def. Mem., at 17), the burden to develop the Record did not rest on Plaintiff or her counsel, but rather on the ALJ, see, e.g., Carr v. Comm'r of Soc. Sec., No. 16cv5877 (VSB), 2018 WL 3410012, at *3 (S.D.N.Y. July 12, 2018) (noting that “an ALJ cannot merely rely on requests of counsel to obtain records to fulfill the duty to investigate and develop the record”); Williams v. Comm'r of Soc. Sec., No. 1:17-CV-01322 EAW, 2019 WL 851065, at *5 (W.D.N.Y. Feb. 21, 2019) (“The ALJ has a duty independent of Plaintiff's counsel to investigate and develop the record, and the ALJ does not satisfy that duty merely by relying on Plaintiff's counsel to obtain missing evidence.”).
Remand is appropriate where the record is devoid of treatment notes for a relevant period, where there are indications in the record that such notes likely exist, and where the ALJ has failed to take steps to obtain the missing notes. See Schaal, 134 F.3d at 505 (discussing ALJ's duty to seek additional information from treater if clinical findings are inadequate or missing). In addition, the ALJ, in this case, should have sought a medical source statement (with a function-by-function assessment of Plaintiff's physical impairments) from Dr. Echenique, with respect to the period in which he treated Plaintiff - unless the ALJ had obtained the full physician questionnaire and learned that, in fact, it had been completed by Dr. Echenique. When an ALJ is tasked with determining a claimant's RFC, her failure to request a completed functional assessment from a relevant treater also constitutes a failure of her duty to develop the record and should itself result in remand. See, e.g., Romero v. Comm'r of Soc. Sec., No. 18cv10248 (KHP), 2020 WL 3412936, at *13 (S.D.N.Y. June 22, 2020) (collecting cases); see also Brooks v. Kijakazi, No. 20cv7750 (GBD) (JLC), 2022 WL 213994, at *17 (S.D.N.Y. Jan. 25, 2022) (lack of a functional assessment from a source familiar with the claimant's physical impairments and covering the relevant period was an “obvious” gap in the record).
In sum, the ALJ had inadequate information from which to assess Plaintiff's impairments in 2017, in that (a) the 2017 medical questionnaire that was included in the Record was incomplete and its author was unknown; (b) unless the person who filled out the questionnaire was Dr. Echenique, the Record contained no function-by-function assessment from the orthopedist who apparently treated Plaintiff for her allegedly disabling conditions, over the course of 2017; and (c) the Record was missing Dr. Echenique's treatment notes. These significant gaps in the medical evidence warrant remand for further development of the Record.
2. The ALJ Should Have Also Sought Clarification of Dr. Cushner's Opinion.
Relatedly, although not discussed by Plaintiff, this Court finds that, before the ALJ decided to rely, to any extent, on the treatment records and opinion of Dr. Cushner, she should have sought clarification from him as to his overly vague, one-sentence assessment regarding Plaintiff's limited ability to lift weight, and sought a more complete functional assessment.
As noted above, the Record contains Dr. Cushner's records and a short note from him dated December 11, 2018, which stated that Plaintiff was “released to return to work as of” January 2, 2019, but there should be “[n]o heavy lifting, lift as tolerated.” (R. at 234.) This note provides insufficient opinion evidence in two respects. First, it says nothing regarding the extent of Plaintiff's exertional impairments at any time during 2018 - including as of June 7, 2018 (a date nearly 12 months after her alleged disability onset date of July 27, 2018), when Plaintiff apparently reported to Dr. Cushner that she was experiencing improvement of her symptoms, but that she was still experiencing “stiffness” and was actively engaged in physical therapy. (See id. at 231.) Second, even with respect to Plaintiff's exertional capacities as of December 2018, Dr. Cusher did not explain what he meant by “heavy lifting, ” i.e., the amount of weight that Plaintiff could lift, or how frequently she could engage in such lifting.
Despite this lack of clarity, the ALJ found Dr. Cushner's exertional assessment to be “persuasive” and jumped to the conclusion that it supported the ALJ's ultimate RFC determination that there was no continuous 12-month period for which Plaintiff was unable to perform at least a full range of sedentary work (id. at 19) - work that requires a claimant to lift up to 10 pounds at a time and occasionally (meaning, up to one-third of the time) lift or carry articles like docket files, ledgers, and small tools. See 20 C.F.R. §§ 404.1567; 416.967. This constituted an improper evaluation of the medical opinion evidence, even under the new SSA regulations that apply to this case.
Under the new regulations, an ALJ is required to consider several factors in connection with evaluating the medical opinion evidence of record - most importantly, the “supportability” and “consistency” of each opinion. See 20 C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c). An ALJ cannot accomplish this task by assuming, without clarification, the meaning of an overly vague term in a provider's opinion. See, e.g., Skartados v. Comm'r of Soc. Sec., No. 20-CV-3909 (PKC), 2022 WL 409701, at *5 (E.D.N.Y. Feb. 10, 2022) (in case involving the new SSA regulations, finding the ALJ should have further developed the record in light of the “ambiguity” found in the treater's opinion before assessing that opinion's “supportability” or “consistency”). When an ALJ makes such an assumption to fit her own preconceived idea of the claimant's RFC, she impermissibly substitutes her own lay opinion for that of the treater's. See Manzella v. Comm'r of Soc. Sec., No. 20cv3765 (VEC) (SLC), 2021 WL 5910648, at *14 (S.D.N.Y. Oct. 27, 2021) (“ALJs may not, of course ‘play doctor' by using their own lay opinions to fill evidentiary gaps in the record.”), report and recommendation adopted 2021 WL 5493186 (Nov. 22, 2021). Thus, in this case, the ALJ should have sought clarification from Dr. Cushner about his opinion regarding Plaintiff's lifting limitations before determining its persuasiveness. The ALJ should have also sought a medical source statement from Dr. Cushner, with a more complete functional assessment for the entire period in which Dr. Cushner apparently took over from Dr. Echenique as Plaintiff's orthopedist.
B. The ALJ's Failure To Develop The Record Was Not Harmless.
In its papers, Defendant argues that, even if the ALJ did err in her development of the Record, that error was “harmless” because, in Defendant's view, acquiring additional documentation from Plaintiff's treaters would not have changed the outcome here. (See Def. Mem., at 18-19.) On this point, Defendant argues that, even if the completed physician questionnaire had been turned over to the ALJ and the ALJ had then given greater weight to the opinions contained within it, Plaintiff's RFC would not have changed because the questionnaire indicated that Plaintiff could lift, push, pull, and carry up to 10 pounds, which, according to Defendant, is a limitation “not inconsistent with the RFC for sedentary work.” (Id. at 19.)
Where, however, “remand is appropriate because the ALJ failed to apply the correct legal principles, ” it would be inappropriate for the Court, “prior to remand, [to] attempt to assess whether substantial evidence in the Record support[ed] the ultimate disability determination.” Garcia v. Colvin, No. 14cv3725 (DF), 2015 WL 5786506, at *26 (S.D.N.Y. Sept. 29, 2015). In this instance, remand is appropriate because there were notable gaps in the medical record that the ALJ failed to take steps to fill, and the Court cannot and should not assume what the missing evidence would have shown - as to Plaintiff's ability to lift, carry, push, or pull, or as to any other work-related abilities. Furthermore, Defendant's description of the opinions contained within the 2017 questionnaire is not wholly accurate. As noted above (see Background, supra, Section B(1)(a)), the questionnaire contains a chart addressing Plaintiff's functional limitations, and, in that chart, the provider not only checked off boxes indicating that Plaintiff was limited to lifting, carrying, and pushing or pulling no more than 10 pounds; he or she also checked off boxes that (somewhat contradictorily) suggested that Plaintiff should “avoid” those physical activities entirely. (R. at 210.) While lifting or carrying up to 10 pounds may fall within the meaning of sedentary work, a total avoidance of those same activities would not be consistent with the RFC to complete sedentary work. Thus, without clarification (through the introduction of the complete questionnaire, the submission of Plaintiff's treatment records from 2017, and/or an explanation from the physician who filled out the questionnaire about the meaning of the opinions expressed therein), neither this Court nor the ALJ would be able to conclude that the questionnaire does, in fact, support the RFC for a full range of sedentary work.
Further, the errors identified above cannot be said to have been harmless because, even if the Record shows that Plaintiff's symptoms improved in the months following her February 2018 surgery, there was insufficient evidence in the Record to enable the ALJ to make a fair determination as to whether Plaintiff was disabled for at least 12 months following the claimed onset date of her disability in 2017. On this point, it is worth noting that, in considering Dr. Cushner's note, clearing Plaintiff for work on January 2, 2019, the ALJ wrote that, even if she were to give Plaintiff “the greatest benefit of the doubt possible, ” and conclude that Plaintiff “regained the ability to perform sedentary work on January 2, 2019, that date would still be less than [12] months since the date of [Plaintiff's] knee surgery on February 16[, 2018].” (R. at 19.) The question, however, was not how long Plaintiff may have been disabled following her surgery, but rather how long she may have been disabled following her claimed disability onset date. If the missing treatment records from 2017, and complete functional assessments from Drs. Echenique and Cushner, would have evidenced physical limitations in the second half of 2017 and the first half of 2018 that could have precluded Plaintiff from performing the full range of sedentary work during that time, then that evidence may well have led the ALJ to reformulate Plaintiff's RFC for that period and potentially to reach a different outcome.
Accordingly, I recommend that this matter be remanded for further administrative proceedings, and that the ALJ be directed, upon remand, to take steps to obtain a full copy of the 2017 questionnaire, to obtain Dr. Echenique's treatment records, and to request medical source statements (with function-by-function assessments) from both Dr. Echenique and Dr. Cushner, with the latter doctor being instructed to provide an assessment for the period prior to December 11, 2018, not just as of that date or thereafter. After developing the Record to address these gaps, the ALJ should be instructed to reevaluate the medical opinions in the Record, in light of the totality of the evidence, and in accordance with the factors set out in the new SSA regulations.
CONCLUSION
For all of the foregoing reasons, I respectfully recommend that Plaintiff's motion for judgment on the pleadings (Dkt. 20) be granted to the extent it seeks remand to the SSA for further proceedings, and Defendant's cross-motion for judgment on the pleadings (Dkt. 23) be denied. I further recommend that, upon remand, the ALJ be directed
(1) To take steps to develop the Record, by requesting from Plaintiff's medical providers:
(a) a complete copy of the physician questionnaire contained in the Record at R. 210;
(b) treatment records from Dr. Echenique (Plaintiff's orthopedist in 2017); and
(c) medical source statements from both Dr. Echnique and Dr. Cushner (Plaintiff's orthopedist in 2018), with specific, function-by-function assessments of Plaintiff's exertional limitations during the periods in which each of these doctors treated her; and
(2) Upon development of the Record in the manner described above, to reevaluate the medical opinions in the Record, in light of the totality of the evidence and in accordance with the factors set out in the new regulations, 20 C.F.R. §§ 404.1520c(a)-(c) and 416.920c(a)-(c).
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe, United States Courthouse, 40 Foley Square, New York, New York 10007, Room 2204. Any requests for an extension of time for filing objections must be directed to Judge Gardephe. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBEJCTIONS AND WILL PRECULDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).