Thompson v. Kijakazi
Filing
23
DECISION AND ORDER granting 17 Motion for Judgment on the Pleadings. For the foregoing reasons, Plaintiff's Motion for Judgment on the Pleadings (Docket No. 17) is GRANTED, and this case is REMANDED for further administrative proceedings c onsistent with this Decision and Order. The Clerk is directed to enter final judgment in favor of Plaintiff and then close the file. (Signed by Magistrate Judge Gary R. Jones on 2/5/2024) (mml) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------ERIC C.T.,
Plaintiff,
DECISION AND ORDER
1:23-cv-00996-GRJ
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
----------------------------------------------------GARY R. JONES, United States Magistrate Judge:
In July of 2020, Plaintiff Eric C.T. 1 applied for Disability Insurance
Benefits under the Social Security Act. The Commissioner of Social
Security denied the application. Plaintiff, represented by The DeHaan Law
Firm, P.C., John W. DeHaan, Esq., of counsel, commenced this action
seeking judicial review of the Commissioner’s denial of benefits under 42
U.S.C. §§ 405 (g) and 1383 (c)(3). The parties consented to the jurisdiction
of a United States Magistrate Judge. (Docket No. 8).
This case was referred to the undersigned on January 3, 2024.
Presently pending is Plaintiff’s Motion for Judgment on the Pleadings under
Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket No. 17). For
Plaintiff’s name has been partially redacted in compliance with Federal Rule of Civil
Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court
Administration and Case Management of the Judicial Conference of the United States.
1
1
the following reasons, Plaintiff’s motion is due to be granted and this case
is remanded for further administrative proceedings.
I. BACKGROUND
A.
Administrative Proceedings
Plaintiff applied for benefits on July 16, 2020, alleging disability
beginning January 16, 2020. (T at 236-44). 2 Plaintiff’s application was
denied initially and on reconsideration. He requested a hearing before an
Administrative Law Judge (“ALJ”). A hearing was held on November 16,
2021, before ALJ Michael Stacchini. (T at 33-59). Plaintiff appeared with an
attorney and testified. (T at 39-54). The ALJ also received testimony from
Robert Paterwic, a vocational expert. (T at 55-57).
B.
ALJ’s Decision
On April 19, 2022, the ALJ issued a decision denying the application
for benefits. (T at 8-28). The ALJ found that Plaintiff had not engaged in
substantial gainful activity since January 16, 2020 (the alleged onset date)
and meets the insured status requirements of the Social Security Act
through December 31, 2024. (T at 13).
The ALJ concluded that Plaintiff’s rotator cuff tear of the right
shoulder, knee chondromalacia and meniscus tear with internal
2
Citations to “T” refer to the administrative record transcript at Docket No. 11.
2
derangement, obesity, and right wrist TFCC tear were severe impairments
as defined under the Act. (T at 14).
However, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed
impairments in 20 CFR Part 403, Subpart P, Appendix 1. (T at 14).
At step four of the sequential analysis the ALJ determined that
Plaintiff retained the residual functional capacity (“RFC”) to perform light
work, as defined in 20 CFR 404.1567 (b), with the following limitations: he
can perform no more than occasional climbing of ramps and stairs; no
climbing ladders, ropes, or scaffolds; occasional balancing, stooping,
kneeling, crouching, and crawling; and he is limited to frequent reaching
with the right upper extremity, with only occasional reaching overhead. (T
at 15).
The ALJ concluded that Plaintiff could not perform his past relevant
work as a corrections officer. (T at 22). However, considering Plaintiff’s
age (50 on the alleged onset date), education (at least high school), work
experience, and RFC, the ALJ determined that there are jobs that exist in
significant numbers in the national economy that Plaintiff can perform. (T at
22-23).
3
As such, the ALJ found that Plaintiff had not been under a disability,
as defined under the Social Security Act, and was not entitled to benefits
for the period between January 16, 2020 (the alleged onset date) and April
19, 2022 (the date of the ALJ’s decision). (T at 23). On December 9, 2022,
the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
decision the Commissioner’s final decision. (T at 1-7).
C.
Procedural History
Plaintiff commenced this action, by and through his counsel, by filing
a Complaint on February 6, 2023. (Docket No. 1). On September 14, 2023,
Plaintiff filed a motion for judgment on the pleadings, supported by a
memorandum of law. (Docket Nos. 17, 18). The Commissioner interposed
a brief in opposition to the motion and in support of the denial of benefits,
on November 6, 2023. (Docket No. 20). On November 30, 2023, Plaintiff
submitted a reply memorandum of law in further support of his motion.
(Docket No. 21).
II. APPLICABLE LAW
A.
Standard of Review
“It is not the function of a reviewing court to decide de novo whether a
claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999).
The court’s review is limited to “determin[ing] whether there is substantial
4
evidence supporting the Commissioner's decision and whether the
Commissioner applied the correct legal standard.” Poupore v. Astrue, 566
F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings,
which are considered conclusive if supported by substantial evidence. See
42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla”
and “means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec.,
562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency's findings are supported by
substantial evidence, the reviewing court is required to examine the entire
record, including contradictory evidence and evidence from which
conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145,
151 (2d Cir. 2012) (internal quotations omitted).
“When there are gaps in the administrative record or the ALJ has
applied an improper legal standard,” or when the ALJ’s rationale is unclear,
remand “for further development of the evidence” or for an explanation of
the ALJ’s reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.
1996).
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B.
Five-Step Sequential Evaluation Process
Under the Social Security Act, a claimant is disabled if he or she
lacks the ability “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months ....” 42 U.S.C. §
423(d)(1)(A).
A claimant’s eligibility for disability benefits is evaluated pursuant to a
five-step sequential analysis:
1. The Commissioner considers whether the claimant is
currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has
a “severe impairment” which limits his or her mental or physical
ability to do basic work activities.
3. If the claimant has a “severe impairment,” the Commissioner
must ask whether, based solely on medical evidence, claimant
has an impairment listed in Appendix 1 of the regulations. If the
claimant has one of these enumerated impairments, the
Commissioner will automatically consider him disabled, without
considering vocational factors such as age, education, and
work experience.
4. If the impairment is not “listed” in the regulations, the
Commissioner then asks whether, despite the claimant's severe
impairment, he or she has residual functional capacity to
perform his or her past work.
6
5. If the claimant is unable to perform his or her past work, the
Commissioner then determines whether there is other work
which the claimant could perform.
See Rolon v. Commissioner of Soc. Sec., 994 F. Supp. 2d 496, 503
(S.D.N.Y. 2014); see also 20 C.F.R. §§ 404.1520(a)(4)(i)–(v),
416.920(a)(4)(i)–(v).
The claimant bears the burden of proof as to the first four steps; the
burden shifts to the Commissioner at step five. See Green-Younger v.
Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner
determines whether claimant can perform work that exists in significant
numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101,
103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).
III. DISCUSSION
Plaintiff raises three main arguments in support of his request for
reversal of the ALJ’s decision. First, Plaintiff argues that the ALJ’s
assessment of the medical opinion evidence was flawed. Second, he
challenges the ALJ’s RFC determination. Third, Plaintiff asserts that the
ALJ did not give proper consideration to his subjective complaints. This
Court will address each argument in turn.
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A.
Medical Opinion Evidence
“Regardless of its source, the ALJ must evaluate every medical
opinion in determining whether a claimant is disabled under the [Social
Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013
WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. §§
404.1527(c), 416.927(d) (2020)) (internal quotation marks omitted).
In January of 2017, the Social Security Administration promulgated
new regulations regarding the consideration of medical opinion evidence.
The revised regulations apply to claims filed on or after March 27, 2017.
See 20 C.F.R. § 404.1520c. Because Plaintiff’s application for benefits
was filed after that, the new regulations apply here.
The ALJ no longer gives “specific evidentiary weight to medical
opinions,” but rather considers all medical opinions and “evaluate[s] their
persuasiveness” based on supportability, consistency, relationship with the
claimant, specialization, and other factors. See 20 C.F.R. § 404.1520c (a),
(b)(2). The ALJ is required to “articulate how [he or she] considered the
medical opinions” and state “how persuasive” he or she finds each opinion,
with a specific explanation provided as to the consistency and
supportability factors. See 20 C.F.R. § 404.1520c (b)(2).
8
Consistency is “the extent to which an opinion or finding is consistent
with evidence from other medical sources and non-medical sources.” Dany
Z. v. Saul, 531 F. Supp. 3d 871, 882 (D. Vt. 2021)(citing 20 C.F.R. §
416.920c(c)(2)). The “more consistent a medical opinion” is with “evidence
from other medical sources and nonmedical sources,” the “more
persuasive the medical opinion” will be. See 20 C.F.R. § 404.1520c(c)(2).
Supportability is “the extent to which an opinion or finding is
supported by relevant objective medical evidence and the medical source’s
supporting explanations.” Dany Z, 531 F. Supp. 3d at 881. “The more
relevant the objective medical evidence and supporting explanations
presented by a medical source are to support his or her medical opinion(s)
or prior administrative medical finding(s), the more persuasive the medical
opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §
404.1520 (c)(1), 416.920c(c)(1).
In the present case, the ALJ considered limitations assessed by Dr.
Louis Rose, Plaintiff’s long-term treating orthopedic surgeon, in treatment
notes during the relevant time period.
In July of 2020, Dr. Rose noted pain and decreased range of motion
in Plaintiff’s right shoulder, right knee, and right hand, elbow, and wrist. (T
at 568). He characterized Plaintiff’s impairment as permanent and
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cautioned Plaintiff against any impact or significant forceful extending and
bending of his right shoulder, knee, and wrist. (T at 571). Dr. Rose opined
that Plaintiff could not perform any kneeling, squatting, overhead lifting,
pushing, or pulling. (T at 571). He also found that Plaintiff could not
engage in sudden rotation of his head and recommended that Plaintiff
elevate his right knee above heart level. (T at 571).
In February of 2021 and December of 2021, Dr. Rose again
recommended that Plaintiff avoid any impact or significant forceful
extending and bending of his right shoulder, knee, and wrist. (T at 809,
837). In October of 2021 and March of 2022, Dr. Rose repeated this
recommendation, along with his assessment that Plaintiff cannot kneel,
squat, lift overhead, push, or pull. (T at 833, 841).
The ALJ found Dr. Rose’s statements “not persuasive.” (T at 21).
For the reasons discussed below, the Court finds that the ALJ failed
to provide a sufficient explanation to support this aspect of his decision.
The ALJ faulted Dr. Rose for failing to support his findings with
“references to the medical record….” (T at 21). In other words, Dr. Rose’s
statements were discounted because the ALJ found that they were not
supported by citations to clinical findings.
This conclusion is problematic in two respects.
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First, the limitations assessed by Dr. Rose are contained in treatment
notes that contain the supporting clinical findings the ALJ said were lacking.
Throughout the period at issue, in addition to providing his assessment of
Plaintiff’s limitations, Dr. Rose documented the results of his
contemporaneous clinical examinations, including ongoing significant pain
in Plaintiff’s right shoulder, right knee, and right elbow (T at 806, 810, 831,
835-36, 839-40) and restricted range of motion, decreased strength,
swelling, and tenderness in these areas. (T at 808-809, 832-33, 836-37,
840-41).
Second, given Dr. Rose’s specialty in orthopedics and long-term
treating relationship with Plaintiff, to the extent the ALJ believed the
assessments were insufficiently supported, the ALJ was obliged to recontact the physician for clarification. See Plaza v. Comm'r of Soc. Sec.,
No. 19CV3853 (DF), 2020 WL 6135716, at *23 (S.D.N.Y. Oct. 16,
2020)(finding that ALJ erred when he “substituted his lay opinion for that of
the treating physician without first re-contacting the treater for clarification
of any perceived inconsistencies between the doctor’s opinions and the
underlying clinical record”); see also 20 C.F.R. § 404.1520c (“The …
opinion … of a medical source who has received advanced education and
training to become a specialist may be more persuasive about medical
11
issues related to his or her area of specialty than the … opinion … of a
medical source who is not a specialist in the relevant area of specialty.);
Nicole V. v. Comm'r of Soc. Sec., No. 1:20-CV-01099-TPK, 2022 WL
1134485, at *4 (W.D.N.Y. Apr. 18, 2022)(noting that, under new medical
opinion standard, the ALJ must “must seriously consider … the
specialization of the source”).
The ALJ referenced other medical opinion evidence as a further
reason for rejecting the limitations assessed by Dr. Rose. (T at 21-22).
As explained further below, this also is not sufficient to sustain the
ALJ’s decision, even under the deferential standard of review applicable
here.
Dr. Kautilya Puri performed a consultative examination on November
4, 2020. Dr. Puri opined that Plaintiff had mild limitations “to his gait and to
his activities of daily living,” and mild limitations for squatting, bending,
stooping, kneeling, and reaching overhead. (T at 801). Dr. Puri assessed
mild-to-moderate limitation with respect to Plaintiff’s ability to lift weights
with his right upper extremity. (T at 801). Dr. Puri found that Plaintiff had no
limitations regarding his fine and gross motor skills. (T at 801).
The Commissioner cites Dr. Puri’s opinion as supportive of the ALJ’s
denial of benefits. Notably, however, the ALJ did not state whether and to
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what extent he found Dr. Puri’s assessment persuasive. Indeed, he
described Dr. Puri’s report as “vague in terms of articulating [Plaintiff’s]
functional limitations.” (T at 21). Moreover, the Second Circuit has
consistently “cautioned that ALJs should not rely heavily on the findings of
consultative physicians after a single examination.” Selian v. Astrue, 708
F.3d 409, 419 (2d Cir. 2013)(citing Cruz v. Sullivan, 912 F.2d 8, 13 (2d
Cir.1990)); see also Rucker v. Kijakazi, 48 F.4th 86, 94 (2d Cir.
2022)(collecting cases).
Dr. Paul Mercurio performed a consultative examination on April 29,
2021. He opined that Plaintiff had no limitation with respect to sitting and
handling objects, and mild limitations for prolonged standing and repetitive
bending or lifting. (T at 825). Dr. Mercurio assessed moderate limitation
with respect to Plaintiff’s ability to engage in prolonged walking and
climbing stairs. (T at 825). He opined that Plaintiff had marked limitation
regarding carrying or kneeling. (T at 825). Dr. Mercurio found that Plaintiff
had a mild limitation for reaching, with marked limitation for overhead
reaching with the right arm. (T at 825).
The ALJ found Dr. Mercurio’s opinion “partially persuasive.” (T at 21).
The ALJ credited the mild to moderate limitations indicated by the
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consultative examiner but discounted his assessment of marked limitation
as to carrying, kneeling, and overhead reaching. (T at 21).
When reaching this conclusion, there is no discussion in the ALJ’s
written decision that the ALJ considered the significant consistency
between the opinions of Dr. Mercurio and Dr. Rose, both of whom
assessed marked or complete limitation with respect to overhead reaching
and kneeling. This was error. See Shawn H. v. Comm'r of Soc. Sec., No.
2:19-CV-113, 2020 WL 3969879, at *7 (D. Vt. July 14, 2020)(“Moreover,
the ALJ should have considered that the opinions of Stephens and Dr.
Lussier are consistent with each other.”); Malia Ann B. v. Comm'r of Soc.
Sec., No. 5:21-CV-1362-AMN-CFH, 2023 WL 2838054, at *7 (N.D.N.Y.
Feb. 23, 2023), report and recommendation adopted, No. 5:21-CV-1362AMN-CFH, 2023 WL 2623865 (N.D.N.Y. Mar. 24, 2023)(collecting cases
holding that “the ALJ is obligated to discuss the consistency of a medical
opinion with the other evidence in the record, which necessarily includes
other medical opinions”).
In November of 2020, Dr. T. Schmidt-Deyoung, a non-examining
State Agency review physician, opined that Plaintiff could occasionally lift
and carry up to 20 pounds, frequently lift and carry up to 10 pounds, sit for
about six hours, and stand and/or walk for about six hours in eight-hour
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workday. (T at 67-68). Dr. Schmidt-Deyoung assessed that Plaintiff could
frequently balance and stoop, and occasionally kneel, crouch, crawl, and
climb. (T at 68). Dr. Schmidt-Deyong concluded that Plaintiff was limited in
right overhead reaching. (T at 69). In May of 2021, Dr. M. VazquezGonzalez, another State Agency review physician, affirmed Dr. SchmidtDeyong’s assessment. (T at 89).
The ALJ found these assessments “generally persuasive.” (T at 20).
However, other than general references to his lay reading of the record, the
ALJ did not adequately account for the contradiction between the State
Agency opinions and the assessments of two physicians who treated (Dr.
Rose) and examined (Dr. Mercurio) Plaintiff.
The ALJ was obliged to provide a detailed analysis, supported by
evidentiary citations, to explain why he found the outlier opinions better
supported and more consistent with the record. See, e.g., Raymond M. v.
Comm'r of Soc. Sec., No. 5:19-CV-1313 (ATB), 2021 WL 706645, at *9
(N.D.N.Y. Feb. 22, 2021)(“With respect to consistency, the ALJ should
have addressed the fact that Dr. Ferrin's opinion was an outlier among the
medical opinions of record.”); Dany Z. v. Saul, 531 F. Supp. 3d 871, 885
(D. Vt. 2021)(“The new regulations cannot be read as a blank check giving
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ALJs permission to rely solely on agency consultants while dismissing
treating physicians in a conclusory manner.”).
Moreover, the State Agency review physicians reviewed an
incomplete record, which did not include more than a year’s worth of
progress notes, clinical findings, and functional assessments from Dr.
Rose, Plaintiff’s treating orthopedic surgeon. (T at 826-44). See Shawn H.
v. Comm’r of Soc. Sec., No. 2:19-CV-113, 2020 WL 3969879, at *8 (D. Vt.
July 14, 2020)(“Naturally, if nonexamining agency consultants have
reviewed only part of the record, their opinions ‘cannot provide substantial
evidence to support the ALJ’s [RFC] assessment if later evidence supports
the claimant's limitations.’”)(citations omitted).
For these reasons a remand is required for proper consideration of
the medical opinion evidence.
B.
RFC
A claimant’s “residual functional capacity” (“RFC”) is his or her
“maximum remaining ability to do sustained work activities in an ordinary
work setting on a continuing basis.” Melville, 198 F.3d at 52 (quoting SSR
96-8p). When assessing a claimant’s RFC, an ALJ must consider medical
opinions regarding the claimant’s functioning and make a determination
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based on an assessment of the record as a whole. See 20 C.F.R. §§
404.1527(d)(2), 416.9527(d)(2).
Here, the ALJ found that Plaintiff retained the RFC to perform light
work, as defined in 20 CFR 404.1567 (b), with the following limitations: no
more than occasional climbing ramps and stairs; no climbing ladders,
ropes, or scaffolds; occasional balancing, stooping, kneeling, crouching,
and crawling; frequent reaching with the right upper extremity, with only
occasional reaching overhead. (T at 15).
Plaintiff argues that the ALJ erred in determining that he could
perform a range of light work before fully assessing his work-related
abilities on a function-by-function basis.
It is well-settled that before determining a claimant’s RFC based on
exertional levels (sedentary, light, medium, heavy, or very heavy), the ALJ
“must first identify the individual’s functional limitations or restrictions and
assess his or her work-related abilities on a function-by-function basis.”
Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (emphasis added)
(internal quotation marks omitted); see also 20 C.F.R. §§ 404.1545,
416.945.
The work-related functions include physical abilities (standing, sitting,
walking, lifting, carrying, pushing, pulling), mental abilities (understanding,
17
remembering, carrying out instructions, and responding to supervision),
and other abilities that may be impacted by impairments (seeing, hearing,
ability to tolerate environmental factors). See SSR 96-8P; see also 20
C.F.R. § 404.1545(b)-(d); id. § 416.945; Cichocki, 729 F.3d at 176.
The Second Circuit has not adopted a per se rule requiring remand in
cases where ALJ did not provide an “explicit” function-by-function analysis.
See Cichocki, 729 F.3d at 176; compare Burrows v. Barnhart, No.
3:03CV342, 2007 WL 708627, at *13 (D. Conn. Feb. 20, 2007)(“[a]lthough
a function-by-function analysis is desirable, SSR 96-8p does not require
ALJs to produce [ ] a detailed statement in writing”), with McMullen v.
Astrue, No. 5:05-cv-1484, 2008 WL 3884359, at *6 (N.D.N.Y. Aug. 18,
2008) (remanding because “the ALJ erred in determining that Plaintiff could
do light work before fully assessing his work-related abilities on a functionby-function basis”).
Rather, the Circuit has said that “remand may be appropriate ...
where an ALJ fails to assess a claimant’s capacity to perform relevant
functions, despite contradictory evidence in the record, or where other
inadequacies in the ALJ's analysis frustrate meaningful review.” Cichocki,
729 F.3d at 177.
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Here, the ALJ failed to assess Plaintiff’s capacity to perform relevant
functions, despite contrary evidence in the record (including several
assessments from his long-term treating orthopedic surgeon), and with
inadequacies in his analysis, as outlined above, that frustrate meaningful
review. A remand is appropriate. See Gomez v. Saul, No. 1:19-CV-04708
(ALC), 2021 WL 1172674, at *13 (S.D.N.Y. Mar. 29, 2021).
C.
Credibility
A claimant’s subjective complaints of pain and limitation are “an
important element in the adjudication of [social security] claims, and must
be thoroughly considered in calculating the [RFC] of a claimant.” Meadors
v. Astrue, 370 F. App'x 179, 183 (2d Cir. 2010) (citation omitted); see also
20 C.F.R. § 416.929.
However, “the ALJ is … not required to accept the claimant’s
subjective complaints without question.” Genier v. Astrue, 606 F.3d 46, 49
(2d Cir. 2010) (citations omitted). Rather, the ALJ “may exercise discretion
in weighing the credibility of the claimant's testimony in light of other
evidence in the record.” Id. (citation omitted); see also Henningsen v.
Comm'r of Soc. Sec., 111 F. Supp. 3d 250, 267 (E.D.N.Y. 2015) (“The ALJ
retains discretion to assess the credibility of a claimant's testimony
regarding disabling pain and ‘to arrive at an independent judgment, in light
19
of medical findings and other evidence, regarding the true extent of the
pain alleged by the claimant.’” (quoting Marcus v. Califano, 615 F.2d 23, 27
(2d Cir. 1979)).
The ALJ follows a two-step process in evaluating a claimant’s
credibility. First, “the ALJ must decide whether the claimant suffers from a
medically determinable impairment that could reasonably be expected to
produce the symptoms alleged.” Genier, 606 F.3d at 49 (citation omitted).
Second, “the ALJ must consider the extent to which the claimant's
symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence of record.” Id. (citation, alterations,
and quotation marks omitted). The ALJ must “consider all of the available
medical evidence, including a claimant's statements, treating physician's
reports, and other medical professional reports.” Fontanarosa v. Colvin, No.
13-CV-3285, 2014 U.S. Dist. LEXIS 121156, at *36 (E.D.N.Y. Aug. 28,
2014) (citing Whipple v. Astrue, 479 F. App'x 367, 370-71 (2d Cir. 2012)).
If the claimant’s allegations of pain and limitation are “not
substantiated by the objective medical evidence, the ALJ must engage in a
credibility inquiry.” Meadors, 370 F. App’x at 184.
This inquiry involves seven (7) factors: (1) the claimant's daily
activities; (2) the location, duration, frequency, and intensity of the pain; (3)
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precipitating and aggravating factors; (4) the type, dosage, effectiveness,
and side effects of any medications taken to alleviate the pain; (5) any
treatment, other than medication, that the claimant has received; (6) any
other measures that the claimant employs to relieve the pain; and (7) other
factors concerning the claimant's functional limitations and restrictions as a
result of the pain. See 20 C.F.R. § 404.1529(c)(3)(i)-(vii)).
If the ALJ discounts the claimant’s credibility, the ALJ “must explain
the decision to reject a claimant's testimony “with sufficient specificity to
enable the [reviewing] Court to decide whether there are legitimate reasons
for the ALJ’s disbelief and whether [the ALJ’s] decision is supported by
substantial evidence.” Calzada v. Astrue, 753 F. Supp. 2d 250, 280
(S.D.N.Y. 2010)(alterations in original, citations omitted).
In the present case, Plaintiff testified as follows: He has not worked
since his alleged onset date of January 16, 2020. (T at 39). He has injuries
to his right shoulder and knee, with knee and shoulder surgery in 2017 and
2018. (T at 46-47). He cannot lift heavy objects and cannot extend his arm
over chest level. (T at 49.) He cannot stand for prolonged periods. (T at
49). Rotating his right-hand causes wrist pain. (T at 49). He wears knee
braces when he goes outside. (T at 52)
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Plaintiff can lift 10 to 15 pounds at most and cannot sit for more than
30 minutes. (T at 53). He can stand in one position for “[m]aybe 10 to 15
minutes.” (T at 53). He experiences numbness and tingling. (T at 54).
Plaintiff elevates his knee “pretty often just to ease up the tension that’s in
the leg.” (T at 54). He walks for about 15 minutes but stops when his knee
starts hurting. (T at 43-44). He cannot perform any overhead exercises. (T
at 44.)
The ALJ found that Plaintiff’s medically determinable impairments
could reasonably be expected to cause the alleged symptoms, but
concluded that his statements concerning the intensity, persistence, and
limiting effects of those symptoms were not fully credible. (T at 16).
The ALJ’s credibility determination must also be revisited on remand.
The ALJ found Plaintiff’s subjective complaints inconsistent with “the
longitudinal evidence.” (T at 16). However, Plaintiff’s complaints are
supported by the assessments of his treating orthopedic surgeon and, in
part, by the opinion of a consultative examiner. As discussed above, the
ALJ erred in considering those opinions, which, in turn, undermines his
decision to discount Plaintiff’s subjective complaints.
In addition, there is no indication that the ALJ considered Plaintiff’s
extended work history, which included 15 years of service as a corrections
22
office and multiple returns to employment following work-related injuries.
(T at 323-30, 333, 335, 348-67, 372, 376-78, 385-429, 432-503, 510).
This was error. See Rivera v. Schweiker, 717 F.2d 719, 725 (2d
Cir.1983) (“A claimant with a good work record is entitled to substantial
credibility when claiming an inability to work because of a disability.”);
Bialek v. Astrue, No. 11-CV-5220 FB, 2013 WL 316165, at *4 (E.D.N.Y.
Jan. 28, 2013)(“The ALJ should have afforded Bialek ‘substantial credibility’
in light of his 17–year work history as an emergency medical technician.”);
Hughes v. Colvin, No. 15-CV-181S, 2017 WL 1088259, at *6 (W.D.N.Y.
Mar. 23, 2017)(noting that “a claimant with an established history of
employment is unlikely to be ‘feigning disability’”)(citation
omitted)(collecting cases).
D.
Remand
“Sentence four of Section 405 (g) provides district courts with the
authority to affirm, reverse, or modify a decision of the Commissioner ‘with
or without remanding the case for a rehearing.’” Butts v. Barnhart, 388 F.3d
377, 385 (2d Cir. 2002) (quoting 42 U.S.C. § 405 (g)). Remand for further
administrative proceedings is the appropriate remedy “[w]here there are
gaps in the administrative record or the ALJ has applied an improper legal
standard.” Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999); see also
23
Rhone v. Colvin, No. 13-CV-5766 (CM)(RLE), 2014 U.S. Dist. LEXIS
180514, at *28 (S.D.N.Y. Nov. 6, 2014).
For the reasons discussed above, a remand is necessary for proper
consideration of the medical opinion evidence, a function-by-function
assessment of Plaintiff’s RFC, and an appropriate evaluation of Plaintiff’s
subjective complaints.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Judgment on the
Pleadings (Docket No. 17) is GRANTED, and this case is REMANDED for
further administrative proceedings consistent with this Decision and Order.
The Clerk is directed to enter final judgment in favor of Plaintiff and then
close the file.
s/ Gary R. Jones
Dated: February 5, 2024
GARY R. JONES
United States Magistrate Judge
24
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