HENRY PITMAN, Magistrate Judge.
Plaintiff brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits ("DIB"). All parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c). Plaintiff and the Commissioner have both moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket Item ("D.I.") 12, 15). For the reasons set forth below, the Commissioner's motion is granted and plaintiff's motion is denied.
On July 16, 2014, plaintiff filed an application for DIB, alleging that she became disabled on February 7, 2014 due to torn ligaments in her left thumb and right wrist, surgery on her left hand, pending surgery on her right hand, pain in her lower back and neck and limited motion with pain in her left knee (Tr. 98, 192). After her application for benefits was initially denied on October 10, 2014, she requested, and was granted, a hearing before an administrative law judge ("ALJ") (Tr. 97, 105, 110-11, 126-27).
On October 27, 2016, plaintiff and her attorney appeared before ALJ Vincent M. Cascio for a hearing at which plaintiff and a vocational expert testified (Tr. 70-96). On April 7, 2017, the ALJ issued his decision finding that plaintiff was not disabled (Tr. 51-63). This decision became the final decision of the Commissioner on February 20, 2018 when the Appeals Council denied plaintiff's request for review (Tr. 1-4). Plaintiff timely commenced this action on April 11, 2018 seeking review of the Commissioner's decision (Complaint, dated Apr. 11, 2018 (D.I. 1) ("Compl.")).
Plaintiff was born on February 4, 1968 and was 46 years old at the time she filed her application for DIB (Tr. 192). Plaintiff is married and lives with her husband in a house in Middletown, New York (Tr. 74, 228). Plaintiff completed tenth grade, but later earned her GED (Tr. 75).
Plaintiff worked as a personal aid for mentally ill individuals from February 2000 until February 7, 2014 — the alleged onset date of her disability (Tr. 77, 209). Plaintiff stated in her "Disability Report," dated July 17, 2014, that this position required her to assist patients with all aspects of daily living, such as grocery shopping, cleaning, laundry, taking out the garbage and moving furniture (Tr. 210). She further stated that this position frequently required her to stand, walk, stoop, kneel, crouch, reach, handle large objects and lift objects that weighed 10 pounds or more (Tr. 210). Plaintiff testified that she stopped working due to a motor vehicle accident on February 7, 2014 (Tr. 75). Plaintiff was driving home from work when she was hit by another vehicle on the rear right-hand side of her vehicle while stopped at a stop sign (Tr. 273). Plaintiff reported that she was not injured from this impact; however, when she got out of her car, she slipped on ice and fell on both of her hands and has been in significant pain ever since (Tr. 273).
In her "Function Report", dated August 12, 2014, plaintiff stated that her daily activities included taking care of her dog (and occasionally her grandchild) and having dinner with family and friends; plaintiff claimed that her other social activities were limited by her ongoing pain (Tr. 229, 233). Plaintiff stated that she was able to dress and bathe herself, but that she had difficulty buttoning her shirts, blow drying her hair and shaving her legs because of the pain in her hands (Tr. 229-30). Plaintiff further stated that she was able to clean, do laundry, drive, go outside unassisted, shop for groceries, pay bills and handle her bank accounts (Tr. 231-32). However, at her hearing, plaintiff testified that she needed assistance from her husband to carry out most daily activities, such as laundry, dressing herself, cooking and running errands (Tr. 82-83).
Plaintiff visited Dr. Ronald Israelski, an orthopedic surgeon, five times between February 10, 2014 and May 12, 2014 (Tr. 277-83). While no treatment notes exist from these visits, Dr. Israelski diagnosed plaintiff with a hand sprain and a wrist contusion (Tr. 277-83). He also ordered an MRI of plaintiff's left thumb on February 21, 2014, which revealed no fractures or abnormalities (Tr. 284-85).
Plaintiff visited Dr. Robert Strauch, an orthopedist, on March 20, 2014 complaining of sharp pain in her left thumb and right wrist that she described as a seven out of ten in severity (Tr. 269, 272). Plaintiff exhibited full range of motion in her shoulders and elbows, but her right wrist was limited to 60% rotation due to pain (Tr. 273). Dr. Strauch noted some tenderness over her left thumb metacarpophalangeal ("MP") joint,
Plaintiff visited multiple doctors at Crystal Run Healthcare ("CRH") between May 6, 2014 through November 14, 2016 for various orthopedic issues in her hands, wrists, knees, back and left shoulder.
Plaintiff visited Dr. Samir Sodha, an orthopedic surgeon, on May 6, 2014 (Tr. 303). Plaintiff exhibited full range of motion in her elbows, shoulders, forearms, wrists and fingers, but reported pain in her wrist with extension (Tr. 303-04). She also exhibited full muscle strength and normal sensations and reflexes (Tr. 304). Her Tinel
Dr. Sodha performed a left thumb interphalangeal joint arthrodesis
Plaintiff had a post-operative visit with Dr. Sodha on June 19, 2014 and reported that she had some incision discomfort, but that her overall pain had improved (Tr. 301). Dr. Sodha noted that plaintiff was recovering well and prescribed her pain medication (Tr. 301-02).
Plaintiff visited Dr. Sodha again on July 2, 2014 (Tr. 299). There are no treatment notes from that visit, but plaintiff reported that her pain was a four out of ten in severity (Tr. 299).
Plaintiff visited Dr. Sodha again on July 24, 2014 and reported that her pain was a five out of ten (Tr. 297-98). Plaintiff reported some sensitivity at her incision site, but exhibited full range of motion in her fingers and wrists (Tr. 297). Plaintiff also underwent an X-Ray of her left thumb at this visit, which revealed no abnormalities (Tr. 306). Dr. Sodha diagnosed plaintiff with left thumb pain (Tr. 298).
Plaintiff visited Dr. Rocco Bassora, an orthopedic surgeon, on August 6, 2014 and reported left knee pain that she claimed was from her February 7, 2014 fall (Tr. 444). Plaintiff exhibited full range of motion, normal sensations and reflexes and full muscle strength (Tr. 444-45). Plaintiff's straight leg raising tests
Plaintiff followed up with Dr. Bassora two days later on August 13, 2014 (Tr. 440). Dr. Bassora agreed that her MRI showed that she had a medial meniscus tear in her left knee and recommended surgery to repair the tear (Tr. 441).
Plaintiff visited Dr. Sodha on August 21, 2014 and reported that the pain in her left thumb was improving with occupational therapy, but that she was having some difficulty gripping with her left hand (Tr. 296). Plaintiff exhibited full range of motion in her fingers and wrists and reported less tenderness over her incision area (Tr. 296). Dr. Sodha opined that plaintiff had no restrictions and that she should continue therapy (Tr. 296).
Dr. Bassora performed arthroscopic left knee surgery on plaintiff on August 26, 2014 (Tr. 367). During the procedure, Dr. Bassora confirmed that plaintiff had a medial meniscus tear and repaired it (Tr. 368). Plaintiff followed up with Dr. Bassora a few days later on September 8, 2014 and reported mild discomfort in her left knee, but no swelling, redness or difficulty walking (Tr. 437). Dr. Bassora noted that plaintiff's sensations and reflexes were normal and that she was recovering well from surgery (Tr. 438).
Plaintiff visited Dr. Sodha again on October 3, 2014 and reported that her left thumb pain was improving with occupational therapy and that she had more movement in her hand, but that she was still having difficulty gripping and was experiencing tightness and stiffness (Tr. 295). Plaintiff exhibited full range of motion in her fingers and wrists and reported less tenderness over her incision area (Tr. 295). Dr. Sodha opined that plaintiff had no restrictions and that she should continue therapy (Tr. 295).
Plaintiff underwent an electromyogram test ("EMG")
Plaintiff visited Dr. Sodha again on February 20, 2015 and reported increased pain in her left thumb (Tr. 414). Plaintiff underwent an X-ray during this examination, which revealed good alignment of the thumb (Tr. 414). Plaintiff exhibited full range of motion in her fingers and wrists (Tr. 414). Dr. Sodha opined that plaintiff had no restrictions and that she should continue therapy (Tr. 414).
Plaintiff visited Dr. Thomas Booker, a pain management physician, on February 26, 2015 and reported pain in her neck and back (Tr. 370). Plaintiff described this pain as an eight out of ten and reported that it decreased with medication and increased with prolonged sitting or lying down (Tr. 371). Plaintiff was alert and oriented during her examination and presented with a normal gait
Plaintiff visited Dr. Adrienne Saloman, a neurologist, on March 9, 2015 and reported back pain that was radiating down her left leg that she described as a four out of ten (Tr. 375-76). Plaintiff was alert and oriented during her examination and exhibited full muscle strength, except for some weakness in her left leg and left grip (Tr. 376). Her sensations and reflexes were normal (Tr. 376). Dr. Saloman diagnosed plaintiff with lumbar radiculopathy and recommended continued physical therapy (Tr. 376).
Plaintiff visited Dr. Syed A. Husain, a pain management specialist, on April 8, 2015 and reported back pain that was radiating down her left leg that she described as a six out of ten (Tr. 391). Plaintiff further reported that increased, prolonged activity increased her pain and that physical therapy had provided her with mild pain relief (Tr. 391). Plaintiff's straight leg raising tests were negative bilaterally, but she exhibited some decreased range of motion in her lumbar spine and some tenderness in her hips with movement bilaterally (Tr. 394). Dr. Husain diagnosed plaintiff with sciatica
Plaintiff followed up with Dr. Husain on August 18, 2015 and reported that her previous injection provided almost complete pain relief for approximately six weeks and she wanted to repeat the procedure (Tr. 385). Plaintiff's straight leg raising tests were negative bilaterally, but she exhibited some decreased range of motion in her lumbar spine and some tenderness in her hips with movement bilaterally (Tr. 388-89). Dr. Husain continued to diagnose plaintiff with sciatica due to displacement of a lumbar disc and recommended continued steroid injections (Tr. 389).
Plaintiff visited Dr. Sodha on October 6, 2015 and reported continued pain and weakness in her left thumb (Tr. 410). Plaintiff exhibited a full range of motion in her fingers and wrists, but some weakness in her left thumb (Tr. 411). Dr. Sodha recommended continued occupational therapy and anti-inflammatory medication (Tr. 411).
Plaintiff visited Dr. Sodha again on January 19, 2016 and reported continuing left thumb pain (Tr. 404). Plaintiff continued to exhibit a full range of motion in her fingers and wrists, but some weakness in her left thumb (Tr. 405). Dr. Sodha recommended continued occupational therapy and anti-inflammatory medication (Tr. 405).
Plaintiff visited Dr. Sodha again on March 29, 2016 and reported continuing left thumb pain (Tr. 398). Plaintiff exhibited a full range of motion in her fingers and wrists, but some weakness in her left thumb (Tr. 398). Dr. Sodha diagnosed plaintiff with post-traumatic osteoarthritis
Plaintiff visited Dr. Bassora on September 29, 2016 and reported pain in her left shoulder (Tr. 485). Plaintiff exhibited a normal range of motion in her left shoulder, but her Neer's impingment sign
Plaintiff visited Dr. Sodha on October 25, 2016 and reported pain in both hands and wrists (Tr. 424). Plaintiff was alert and oriented during her examination and exhibited a full range of motion without pain in her elbows and shoulders (Tr. 426). Plaintiff reported some pain with wrist and forearm extension (Tr. 426). She exhibited full finger flexion and extension, and her muscle strength, sensations and reflexes were normal, except for some weakness noted in her left thumb (Tr. 426-27). Dr. Sodha diagnosed plaintiff with hand muscle weakness, post-traumatic osteoarthritis of the first carpometacarpal joint and a TFCC tear in her right wrist (Tr. 427). Dr. Sodha recommended surgery on plaintiff's right wrist (Tr. 427).
Dr. Sodha also filled out a medical source statement for plaintiff on October 25, 2016 and opined that plaintiff was unable to lift or carry any objects of any weight (Tr. 429). However, he went on to opine that plaintiff could occasionally reach and finger objects with both hands and that she could occasionally handle objects with her right hand (Tr. 431). Dr. Sodha further opined that plaintiff was able to shop, travel, walk, climb stairs at a reasonable pace with use of a single hand rail, prepare simple meals and take care of her personal hygiene (Tr. 434).
Plaintiff visited Dr. Booker on November 14, 2016 and reported neck and back pain that radiated into both legs (Tr. 492). Plaintiff presented with a normal gait and exhibited full range of motion in both legs (Tr. 493). Plaintiff's straight leg raising tests were negative bilaterally, and her sensations were normal (Tr. 493). Dr. Booker ordered an MRI of plaintiff's lumbar spine (Tr. 494).
Plaintiff underwent an orthopedic independent evaluation with Dr. Gilbert Jenouri on September 19, 2014 (Tr. 291). Plaintiff reported left thumb, left knee, right wrist, right thumb, neck and back pain during this evaluation (Tr. 291). Plaintiff stated that she was able to dress and bathe herself, but needed assistance with cleaning, shopping and laundry (Tr. 292). Dr. Jenouri noted that plaintiff was able to rise from the examination table without assistance, but presented with an antalgic gait
Plaintiff exhibited full hand and finger dexterity, full range of motion in her hands and full grip strength; however, she was unable to flex her left thumb due to her recent surgery (Tr. 292-93). Plaintiff's straight leg raising tests were positive and she exhibited some limited range of motion in her thoracic
Dr. Jenouri diagnosed plaintiff with neck, lower back, left thumb, left knee, right wrist and right thumb pain, and with bilateral lower extremity radiculopathy (Tr. 294). Dr. Jenouri opined that plaintiff's condition was stable and she had moderate restrictions with bending, climbing stairs, lifting, carrying and walking, standing or sitting for long periods of time (Tr. 294).
Plaintiff visited Pamela Baltsas, a licensed chiropractor, for an independent evaluation on October 15, 2014 (Tr. 449). Plaintiff reported neck, back, shoulder, hand and left knee pain during this evaluation (Tr. 451). Plaintiff exhibited a slightly decreased range of motion in her cervical
Baltsas diagnosed plaintiff with resolving cervical, thoracic and lumbar spine sprains and opined that plaintiff could return to work if she refrained from repetitive overhead activities, lifting objects over 25 pounds and prolonged walking, standing or sitting (Tr. 453). Baltsas recommended six weeks of chiropractic treatment (Tr. 453).
Plaintiff visited Dr. Edward L. Mills, an orthopedic surgeon, for an independent medical examination on October 16, 2014 (Tr. 473). Plaintiff reported neck, back, wrist, knee and left thumb pain during this examination (Tr. 474). Plaintiff further reported that she was unable to stand for more than ten minutes, unable to sit in one position for more than five minutes and unable to garden, wash dishes, drive, do laundry, clean, cook or shop (Tr. 474). Plaintiff presented with antalgic gait and exhibited a slightly decreased range of motion in her cervical and lumbar spine (Tr. 475-76). Her straight leg raising tests were negative bilaterally and she exhibited full muscle strength and normal reflexes and sensations (Tr. 476). Plaintiff exhibited a decreased range of motion in both wrists and knees (Tr. 476-77).
Dr. Mills diagnosed plaintiff with resolved cervical, thoracic and lumbar sprains, right wrist internal derangement, a left wrist sprain and a right knee sprain, and recommended six weeks of physical therapy (Tr. 477). Dr. Mills opined that plaintiff could return to work if she refrained from lifting objects over 25 pounds, repetitive activities using both wrists and prolonged or repetitive standing, kneeling, squatting, using stairs, walking or running (Tr. 477).
Plaintiff visited Dr. Mills for a second independent medical examination on December 18, 2014 (Tr. 467). Plaintiff reported that her symptoms had worsened since her last examination (Tr. 468). She now complained of left leg, groin and jaw pain, and reported that she was experiencing blurred vision and had difficulty sleeping (Tr. 468). Plaintiff exhibited a decreased range of motion in her lumbar spine, left knee and wrists bilaterally (Tr. 470). Her straight leg raising tests were negative bilaterally, and she had full muscle strength in her legs, but exhibited decreased sensations (Tr. 470).
Dr. Mills diagnosed plaintiff with a resolved lumbar sprain, a resolved right knee sprain and right wrist internal derangement (Tr. 471). Dr. Mills opined that plaintiff could not return to work, but could continue with daily activities if she refrained from bending, lifting objects over 25 pounds, twisting, repetitive activities using her wrists bilaterally and prolonged or repetitive standing, kneeling, squatting, climbing stairs, walking or running (Tr. 472).
Plaintiff visited Dr. Mills for a third independent medical examination on March 12, 2015 and reported lower back and bilateral hand pain (Tr. 463). Plaintiff exhibited a decreased range of motion in her lumbar spine, left knee and wrists bilaterally (Tr. 464-65). Her straight leg raising tests were negative bilaterally; she had full muscle strength in her legs, but exhibited decreased sensations (Tr. 464). Dr. Mills diagnosed plaintiff with a resolved lumbar sprain with underlying degenerative changes and right wrist internal derangement (Tr. 465). Dr. Mills opined that plaintiff could return to work with the restrictions of no repetitive use of both wrists and no heavy lifting (Tr. 465).
Plaintiff visited David Drier, a licensed chiropractor, for an independent evaluation on December 23, 2014 (Tr. 456). Plaintiff reported left knee, left thumb, right wrist and lower back pain during this evaluation (Tr. 458). Plaintiff exhibited a slightly decreased range of motion in her spine, and her straight leg raising test was positive on her left side (Tr. 458). Plaintiff exhibited full muscle strength, and her reflexes and sensations were normal (Tr. 458). Drier diagnosed plaintiff with a status-post lumbar sprain and pre-existing cervical degenerative changes (Tr. 459). He opined that plaintiff could perform her normal daily and work activities if she refrained from lifting objects over 25 pounds, sitting for longer than 25 minutes at a time and repetitive bending (Tr. 459). Drier did not believe that plaintiff would benefit from chiropractic treatment (Tr. 459).
Plaintiff visited Dr. Paul Gordon, a psychiatrist, for a psychiatric evaluation on August 30, 2016 (Tr. 479). Plaintiff reported difficulty concentrating, insomnia and restlessness during her evaluation (Tr. 479). Dr. Gordon noted that plaintiff was alert and oriented during her examination, her thought process was logical, her mood was appropriate and she exhibited good insight and judgment (Tr. 479). Dr. Gordon diagnosed plaintiff with possible attention deficit hyperactivity disorder ("ADHD")
Plaintiff testified that she was still experiencing significant pain in her left knee and lower back and that she was only able to walk, stand or sit for approximately five minutes at a time (Tr. 79-80). Plaintiff further testified that she had no gripping ability in her left hand and was also severely limited with grasping objects in her right hand (Tr. 78-81). She claimed that she was unable to pick up objects with her left hand and had difficulty even writing or holding a pen in her right hand (Tr. 80-81). Plaintiff further testified that she was also unable to bend (Tr. 80-81). Plaintiff stated that she was depressed about not being able to work (Tr. 81-82).
Plaintiff claimed that she spent most days trying to watch television or read, but spent a large portion of her day napping because of her insomnia (Tr. 83). Plaintiff testified that she took a trip to Aruba in 2015, but found the plane ride to be extremely difficult (Tr. 84).
Vocational expert Michele Erbacher ("the VE") also testified at the hearing. The VE testified that plaintiff's past work, described in the United States Department of Labor's Dictionary of Occupational Titles ("DOT") as a personal care aid, DOT Code 354.377-014, was considered medium, semi-skilled work (Tr. 90). The ALJ asked the VE to consider possible jobs for a hypothetical person of plaintiff's age, education and work background, who was limited to a range of light work
The Court may set aside the final decision of the Commissioner only if it is not supported by substantial evidence or if it is based upon an erroneous legal standard. 42 U.S.C. § 405(g);
The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence.
"`Substantial evidence' is `more than a mere scintilla. It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'"
A claimant is entitled to DIB if she can establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than 12 months."
42 U.S.C. § 423(d)(2)(A). In addition, to obtain DIB, the claimant must have become disabled between the alleged onset date and the date on which he was last insured.
In determining whether an individual is disabled, the Commissioner must follow the five-step process required by the regulations. 20 C.F.R. § 404.1520(a)(4)(i)-(v);
If the claimant does not meet any of the listings in Appendix 1, step four requires an assessment of the claimant's residual functional capacity ("RFC") and whether the claimant can still perform her past relevant work given her RFC. 20 C.F.R. § 404.1520(a)(4)(iv);
RFC is defined in the applicable regulations as "the most [the claimant] can still do despite her limitations." 20 C.F.R. § 404.1545(a)(1). To determine RFC, the ALJ "`identif[ies] the individual's functional limitations or restrictions and assess[es] . . . her work-related abilities on a function-by-function basis, including the functions in paragraphs (b),(c), and (d) of 20 [C.F.R. §] 404.1545 . . . .'"
The claimant bears the initial burden of proving disability with respect to the first four steps. Once the claimant has satisfied this burden, the burden shifts to the Commissioner to prove the final step — that the claimant's RFC allows the claimant to perform some work other than her past work.
In some cases, the Commissioner can rely exclusively on the Medical-Vocational Guidelines (the "Grids") contained in C.F.R. Part 404, Subpart P, Appendix 2 when making the determination at the fifth step.
Exclusive reliance on the Grids is not appropriate where nonexertional limitations "significantly diminish [a claimant's] ability to work."
The ALJ applied the five-step analysis described above and determined that plaintiff was not disabled (Tr. 51-63).
As an initial matter, the ALJ found that plaintiff met the insured status requirements of the Act through December 31, 2019 (Tr. 53).
At step one, the ALJ found that plaintiff had not engaged in SGA since February 7, 2014 (Tr. 53).
At step two, the ALJ concluded that plaintiff suffered from the severe impairments of (1) status-post left thumb interphalangeal joint arthrodesis, (2) left hand osteoarthritis, (3) lumbar spine degenerative disc disease, (4) chronic L2-L3 radiculopathy, (5) status-post left knee arthroscopic surgery, (6) a right wrist TFCC tear and (7) left wrist fluid with possible ganglion cyst
At step three, the ALJ found that plaintiff's impairments did not meet or medically equal the criteria of the listed impairments and that plaintiff was not, therefore, entitled to a presumption of disability (Tr. 55). In reaching his conclusion, the ALJ stated that he gave specific consideration to Listings 1.02, 1.04, 12.04, 12.06 and 12.11 (Tr. 55).
The ALJ then determined that plaintiff retained the RFC to perform light work with the following limitations:
To reach his RFC determination, the ALJ examined the opinions of the treating and consulting physicians and determined the weight to be given to each opinion based on the objective medical record (Tr. 59-61).
The ALJ afforded "some weight" to Dr. Jenouri's opinion that plaintiff had "moderate restrictions for walking, standing, sitting [for] long periods, bending, climbing stairs, lifting, and carrying" because, "[w]hile his opinion [was] generally consistent with findings upon his examination, he did not have the benefit of reviewing additional records received at the hearing" (Tr. 59).
The ALJ afforded "little weight" to Dr. Sodha's May 29, 2016 opinion that plaintiff was "unable to work for 6-8 weeks" because "the ability to work is an issue reserved to the Commissioner" (Tr. 59). The ALJ gave "partial weight" to Dr. Sodha's October 25, 2016 opinion that plaintiff could "occasionally reach, handle and finger bilaterally", "never handle with the left hand", "frequently use foot controls", "never climb ladders or scaffolds or crawl" and "never work around unprotected heights, moving mechanical parts or vibrations" because it was "consistent with findings on examinations and [plaintiff's] treatment history (Tr. 59-60). However, he afforded "less weight" to the portion of that opinion that plaintiff could "never lift/carry any weight" because plaintiff's physical examination from that date revealed that she had "5/5 strength in the upper and lower extremities", the opinion was "internally inconsistent" and it was inconsistent with the overall record (Tr. 60).
The ALJ afforded "partial weight" to the opinion of chiropractor Baltsas that plaintiff "could return to work with [the] restrictions of no overhead repetitive activities, no prolonged walking, standing, [or] sitting and no heavy lifting over 25 pounds" because "[a]lthough not a recognized medical source, the opinion [was] consistent with the results of a thorough examination" and consistent with plaintiff's medical imaging of the lumbar spine (Tr. 60).
The ALJ afforded "partial weight" to the opinion of chiropractor Drier that plaintiff "had a mild to moderate spinal disability and may perform her usual work and daily activities, with restrictions of no lifting over 25 pounds, no sitting over 25 minutes at a time, and no repetitive bending" because "[a]lthough not a recognized medical source, the opinion [was] consistent with the results of a thorough examination" (Tr. 60).
The ALJ afforded "great weight" to Dr. Mills' March 12, 2015 opinion that plaintiff could "work and perform daily activities with restrictions of no repetitive use of both hands/wrists and no heavy lifting" and "great weight" to his December 18, 2014 opinion that plaintiff was "unable to return to work, but could perform her daily activities with restrictions of no bending, lifting over 20-25 pounds, twisting, repetitive activities of wrists/hands, [and] prolonged sitting, kneeling, squatting, walking, running, or using stairs." The ALJ also afforded "great weight" to Dr. Mills' October 16, 2014 opinion that plaintiff "was capable of working with restrictions of lifting over 25 pounds, repetitive activities using bilateral wrists/hands, standing, kneeling, squatting, using stairs, walking and running" (Tr. 60-61). The ALJ found that these opinions were consistent with Dr. Mills' physical examinations of plaintiff, with the overall medical record and with the "findings of normal sensation over the ulnar/median/superficial radial nerve distributions, 5/5 strength to muscles, good range of motion of the wrist with only some thumb weakness and minimal tenderness at the fusion site" (Tr. 60-61).
The ALJ also considered the imaging and diagnostic studies of plaintiff's hand, wrists, spine and knee, plaintiff's thumb and knee surgeries, her claims of depression and ADHD, her treatment with Dr. Strauch and Dr. Isrealski after her motor vehicle accident, her treatment with the other physicians at CRH — Drs. Booker, Salomon, Husain and Bassora — and plaintiff's testimony in determining her RFC (Tr. 56-58). The ALJ found that while plaintiff's medically determinable impairments could reasonably have caused her alleged symptoms, 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 record (Tr. 58).
At step four, the ALJ concluded that plaintiff could not perform her past relevant work as a personal care aide because the VE had defined that job as a medium exertion position as it is performed in the national economy (Tr. 61).
At step five, relying on the testimony of the VE, the ALJ found that jobs existed in significant numbers in the national economy that plaintiff could perform, given her RFC, age and education (Tr. 62-63).
Plaintiff contends that the ALJ's disability determination was erroneous because in reaching his RFC determination, the ALJ (1) violated the treating physician rule, (2) failed to develop the record adequately and (3) failed to assess properly plaintiff's credibility and subjective complaints (Plaintiff's Memorandum of Law in Support of Plaintiff's Motion for Judgment on the Administrative Record and Pleadings, dated Sept. 14, 2018 (D.I. 13) ("Pl. Memo.")). The Commissioner contends that the ALJ's decision was supported by substantial evidence and should be affirmed (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 Nov. 13, 2018 (D.I. 16) ("Def. Memo.")).
As described above, the ALJ went through the sequential process required by the regulations. The ALJ's analysis at steps one, two and four were decided in plaintiff's favor, and the Commissioner has not challenged those findings. I shall, therefore, limit my discussion to addressing whether the ALJ's analysis at step three complied with the applicable legal standards and was supported by substantial evidence.
The ALJ found that plaintiff had the RFC to perform light work and was limited to never crawling, working at unprotected heights or with vibrations or hazardous machinery, climbing ladders, ropes or scaffolds or handling objects with the left hand, and only occasionally climbing ramps or stairs, balancing, stooping, crouching, kneeling, handling or fingering objects with the right hand and fingering objects with the left hand (Tr. 55-56). The ALJ's RFC finding is supported by substantial evidence.
The majority of the evidence in the record supports a RFC of light work with the above described limitations. On September 19, 2014, Dr. Jeanouri opined that plaintiff had "moderate restrictions" on her ability to bend, climb stairs, lift, carry, walk and stand or sit for prolonged periods of time (Tr. 294). All three of Dr. Mills' opinions noted similar moderate restrictions, such as, the prohibition against repetitive use of wrists or hands, lifting objects over 25 pounds and repetitive or prolonged standing, kneeling, squatting, walking or running (Tr. 465, 472, 477). On October 25, 2016, Dr. Sodha opined that plaintiff could occasionally reach for and finger objects with both hands, occasionally handle objects with her right hand, but never handle objects with her left hand (Tr. 431). He further opined that she was able to walk and climb stairs at a "reasonable pace" (Tr. 434). Although not recognizable medical sources, chiropractors Baltsas and Drier both opined that plaintiff had moderate limitations consistent with a light RFC, namely, that plaintiff was unable to engage in repetitive overhead activities, could not lift objects over 25 pounds and could not engage in prolonged walking, bending, standing or sitting (Tr. 453, 459).
These opinions are all consistent with an RFC to do light work.
The ALJ's RFC finding is also supported by the objective medical evidence in the record. Plaintiff's February 21, 2014 left thumb MRI revealed no fractures, but because Dr. Sodha opined that it showed a TFCC tear, Dr. Sodha surgically repaired it on June 9, 2014 (Tr. 284-85, 357-59). This surgical repair appeared to be successful considering plaintiff exhibited full range of motion in her wrists and fingers at follow-up appointments with Dr. Sodha on July 24, 2014, August 21, 2014, October 3, 2014, February 20, 2015, October 6, 2015, January 19, 2016 and March 29, 2016 (Tr. 297, 296, 295, 414, 411, 405, 398). Plaintiff's May 10, 2016 left wrist MRI also revealed no fractures, joint effusion or lesions (Tr. 422). However, because Dr. Sodha noted some weakness over plaintiff's left thumb and plaintiff continued to report pain and difficulty gripping, the ALJ considered these limitations by finding that plaintiff could never handle objects with her left hand and could only occasionally finger objects with her left hand (Tr. 55-56).
With respect to plaintiff's left knee, Dr. Bassora repaired plaintiff's medial meniscus tear on August 26, 2014 (Tr. 367). While plaintiff reported some residual pain and decreased sensations from this surgery, she reported no difficulty walking and she exhibited full muscle strength and normal reflexes in her knee at subsequent consultative examinations on September 19, 2014, October 15, 2014, October 16, 2014, December 18, 2014, December 23, 2014 and March 12, 2015 (Tr. 293, 437-38, 452-53, 458, 464, 470, 476). Notably, plaintiff also never sought additional treatment from Dr. Bossora or any other orthopedic surgeon specifically for her left knee after this surgery.
Finally, although plaintiff was diagnosed with radiculopathy and exhibited decreased range of motion in her lumbar spine, her November 18, 2014 MRI revealed only minor disc bulging and no central canal stenosis, and she consistently had negative straight leg raising tests throughout the relevant period (Tr. 364).
Plaintiff contends that the ALJ violated the treating physician when determining her RFC because he failed to provide "good reasons" for affording "little weight" to Dr. Sodha's March 29, 2016 opinion that plaintiff was unable to work for six to eight weeks and his October 25, 2016 opinion that plaintiff was unable to lift or carry objects of any weight (Pl. Memo. at 14-15).
In considering the evidence, the ALJ must afford deference to the opinions of a claimant's treating physicians. A treating physician's opinion will be given controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in . . . [the] record." 20 C.F.R. § 404.1527(c)(2);
"[G]ood reasons" must be given for declining to afford a treating physician's opinion controlling weight. 20 C.F.R. § 404.1527(c)(2);
As long as the ALJ provides "good reasons" for the weight accorded to the treating physician's opinion and the ALJ's reasoning is supported by substantial evidence, remand is unwarranted.
With respect to Dr. Sodha's first opinion, the ALJ afforded "little weight" to a letter Dr. Sodha wrote that excused plaintiff from work until her next appointment in approximately six to eight weeks because it was "limited by time" and "the ability to work is an issue reserved to the Commissioner" (Tr. 59, 401). Plaintiff fails to explain why the ALJ's explanation did not constitute "good reasons" for rejecting this opinion; however, it is well settled that "the opinion of a treating physician, or any doctor, that the claimant is `disabled' or `unable to work' is not controlling, since such statements are not medical opinions, but rather opinions on issues reserved to the Commissioner."
Dr. Sodha's March 29, 2016 letter merely requested plaintiff be excused from work for a few weeks and did not contain any specific restrictions, functional assessments or explanation (Tr. 401). Furthermore, Dr. Sodha's examination of plaintiff on March 29, 2016 does not support plaintiff's assertion that Dr. Sodha was opining that plaintiff was permanently unable to work. During the March 29 examination, plaintiff exhibited a full range of motion in her fingers and wrists with some weakness in her left thumb, and the record shows that plaintiff never sought treatment from any physician for any ailment after this visit until six months later on September 29, 2016 (Tr. 398, 485). Thus, the ALJ did not violate the treating physician rule by affording "little weight" to this opinion.
With respect to Dr. Sodha's opinion that plaintiff could "never lift/carry any weight", the ALJ also afforded this opinion little weight because, as the ALJ correctly explained, it was not supported by Dr. Sodha's own examination of plaintiff on that date, it was internally inconsistent with his other opinions in his medical source statement and it was inconsistent with the overall record (Tr. 60).
First, on October 25, 2016, plaintiff exhibited a full range of motion in her elbows, shoulders, fingers, forearms and wrists, but reported some pain with wrist and forearm extension (Tr. 426-27). She also exhibited full muscle strength and her sensations and reflexes were normal (Tr. 426-27). Plaintiff attempts to argue that this muscle strength finding of a "5/5" only related to plaintiff's lower extremities and, thus, Dr. Sodha's opinion was not inconsistent with his physical examination of plaintiff (Pl. Memo. at 15). However, the record clearly shows that plaintiff exhibited a "5/5 strength to [her] thenar/intrinsic/extrinsic muscles" — the muscles that work to control the fine motions of the thumb
Second, in his medical source statement, Dr. Sodha first opines that plaintiff can never lift or carry objects of any weight and then goes on to opine that she can occasionally reach for and finger objects with both hands and that she can occasionally handle objects with her right hand (Tr. 429, 431). He further opined that plaintiff was able to shop, travel, prepare simple meals and take care of her personal hygiene (Tr. 434). These opinions appear to be internally inconsistent.
Finally, Dr. Sodha's opinion is inconsistent with the record as whole. Treatment notes from Drs. Bassora, Saloman, Jenouri and Mills all indicate that plaintiff had full muscle or full grip strength throughout the relevant period (Tr. 444-45, 376, 292-93, 464, 470, 476). The four other providers who rendered medical opinions on plaintiff's functional capacity found that plaintiff had only "moderate" restrictions on her ability to lift objects, and none found that she was unable to carry or lift objects of any weight (Tr. 294, 453, 459, 477). Moreover, Dr. Sodha's opinion is also inconsistent with his own prior opinions that plaintiff had "no restrictions" on August 21, 2014, October 3, 2014 and February 20, 2015 (Tr. 295-96, 414).
Thus, the ALJ provided good reasons for affording this opinion "little weight" and did not violate the treating physician rule.
Plaintiff next maintains that the ALJ's RFC finding was erroneous because he failed to obtain medical source statements from Drs. Booker or Husain who plaintiff claims "provided years of progress and treatment notes" (Pl. Memo. at 16-17).
"The ALJ's duty to develop the record includes seeking opinion evidence, usually in the form of medical source statements, from the claimant's treating physicians."
In any event, remand would still be unwarranted even if Drs. Booker and Husain were treating physicians because the record here "contains sufficient evidence from which an ALJ can assess the [plaintiff's] residual functional capacity."
Accordingly, because the ALJ had sufficient evidence to determine plaintiff's RFC and there are no obvious gaps in the record, remand is unwarranted simply to obtain medical source statements from Drs. Booker and Husain.
Plaintiff next alleges that the ALJ erred in assessing her credibility and failed to evaluate her subjective complaints properly (Pl. Memo. at 17-23).
In
20 C.F.R. § 404.1512(b)(3);
Applying the two-part framework, and referring specifically to SSR 96-7p,
Plaintiff testified that she was unable to walk, stand or sit for more than five minutes at a time and that she was unable to pick up objects with her left hand or to bend (Tr. 78-81). These limitations appear to be contradicted by plaintiff's description of her daily activities, which included bathing and dressing herself, driving and "light" cooking and cleaning and a 2015 trip to Aruba (Tr. 82-84). Furthermore, the list of plaintiff's daily activities identified at the hearing varied drastically from her description of her daily activities in her Function Report in which she claimed she was able to take care of her dog and grandchild, do laundry, iron and shop (Tr. 229-34). Although plaintiff gave these descriptions more than two years apart, the medical record does not indicate that there was a significant decline in her physical health during that period. Plaintiff's testimony is also undermined by the findings of her treating and consultative physicians who found throughout the relevant period that plaintiff exhibited full grip strength, normal reflexes and had only "mild to moderate" limitations with respect to prolonged sitting, standing or walking.
As already discussed above, the record also indicates that plaintiff's treatment was "beneficial and successful." Dr. Sodha performed surgery on plaintiff's left thumb on June 9, 2014 (Tr. 284-85, 357-59) and this surgical repair appeared to be successful considering plaintiff exhibited full range of motion in her wrists and fingers at follow-up appointments with Dr. Sodha on July 24, 2014, August 21, 2014, October 3, 2014, February 20, 2015, October 6, 2015, January 19, 2016 and March 29, 2016 (Tr. 297, 296, 295, 414, 411, 405, 398). Dr. Sodha consistently opined that plaintiff had "no restrictions" after her examinations on August 21, 2014, October 3, 2014 and February 20, 2015 (Tr. 295-96, 414). Plaintiff's May 10, 2016 left wrist MRI also revealed no fractures, joint effusion or lesions (Tr. 422).
Dr. Bassora subsequently surgically repaired plaintiff's medial meniscus tear on August 26, 2014 (Tr. 367). While plaintiff reported some residual pain and decreased sensations from this surgery, she reported no difficulty walking and she exhibited full muscle strength and normal reflexes in her knee at subsequent consultative examinations on September 19, 2014, October 15, 2014, October 16, 2014, December 18, 2014, December 23, 2014 and March 12, 2015 (Tr. 293, 437-38, 452-53, 458, 464, 470, 476). Notably, plaintiff also never sought additional treatment from Dr. Bossora or any other orthopedic surgeon specifically for her left knee after this surgery. Plaintiff also reported that physical and occupational therapy were alleviating her pain and improving the range of motion in her hands and knees, and that the epidural cortisone injections provided her with almost complete pain relief in her back.
Finally, it was not an error for the ALJ to consider plaintiff's mental and physical demeanor during the hearing. The Second Circuit has explicitly held that an ALJ may "take account of a claimant's physical demeanor in weighing the credibility of her testimony as to physical disability" so long as this observation is given "limited weight" and is "one of several factors in evaluating credibility."
The ALJ noted that "[w]hile the hearing was short-lived and cannot be considered a conclusive indicator of the [plaintiff's] overall level of functioning on a day-to-day basis, the apparent lack of debilitating symptoms during the hearing is a permissible factor to consider amongst other factors in reaching the conclusion regarding the credibility of the [plaintiff's] allegations and the [plaintiff's] residual functional capacity" (Tr. 59). Thus, the ALJ's assessment of plaintiff's demeanor during the hearing was entirely proper based on the legal principles outlined above.
Plaintiff submitted additional medical records from CRH after the ALJ's decision on April 7, 2017, but prior to the Appeals Council's denial on February 20, 2018 (Tr. 8-47). These records included (1) a November 22, 2016 MRI of plaintiff's lumbar spine that revealed mild disc bulging at L4-L5 and L5-S1 and an annular tear at L5-S1; (2) an operative report from Dr. Sodha who performed surgery on plaintiff's right wrist to repair a suspected TFCC tear on November 30, 2016 and treatment notes from follow-up appointments on December 9, 2016, December 30, 2016 and April 21, 2017; (3) treatment notes from appointments with Dr. Booker on January 12, March 6 and April 17, 2017; (4) functional capacity assessments from Dr. Sodha from January 16 and June 20, 2017 and (5) an operative report from Dr. Booker who performed a disc decompression procedure on plaintiff on May 23, 2017 (Tr. 8-47).
The Appeals Council found that the CRH records from November 30, 2016 through April 7, 2017 did "not show a reasonable probability that [they] would [have] changed the outcome of [the ALJ's] decision" and that the CRH records post-April 7, 2017 did not relate to the period at issue because such evidence related to the period after the ALJ's decision (Tr. 2).
Plaintiff argues for the first time in her reply brief that "the Appeals Council failed to provide good reasons for the determination made on the medical evidence provided to it subsequent to the hearing" and, thus, remand is warranted (Plaintiff's Reply Memorandum of Law in Opposition to Defendant's Cross-Motion and in Further Support of Plaintiff's Motion for Judgment on the Pleadings, dated Dec. 4, 2018 (D.I. 17) ("Pl. Reply") at 2-3). Generally, new arguments cannot be asserted for the first time in reply papers and arguments first made in reply should not be considered.
In any event, remand is not required because of this additional evidence. "The Act sets a stringent standard for remanding based on new evidence alone" requiring that the new evidence must be (1) "relevant to the claimant's condition during the time period for which benefits were denied"; (2) "probative" and (3) of such substance that "there is `a reasonable possibility that the new evidence would have influenced the Commissioner to decide claimant's application differently.'"
With respect to the medical records that relate to plaintiff's treatment after April 7, 2017, the Appeals Council correctly found that this evidence was not relevant to the time period for which benefits were denied because it post-dates the ALJ's decision.
The November 22, 2016 MRI revealed mild disc bulging at L4-L5 and L5-S1, but no significant disc herniations or central canal stenosis (Tr. 38). At plaintiff's follow-up appointments with Dr. Booker on January 12 and March 6, 2017, she exhibited full range of motion in her lower extremities and her straight leg raising tests were negative (Tr. 33-37). Dr. Booker also administered a steroid injection to plaintiff on March 7, 2017, which provided her with pain relief (Tr. 39-40).
With respect to plaintiff's hand and wrist impairments, Dr. Sodha performed surgery on plaintiff's right wrist on November 30, 2016 (Tr. 45-47). Similar to the procedure Dr. Sodha performed on plaintiff's left hand, this procedure appears to have been successful considering that plaintiff exhibited a good range of motion in her fingers at follow-up appointments with Dr. Sodha on December 9 and December 30, 2016 (Tr. 21-24). Dr. Sodha also noted that plaintiff had a fair range of motion in her right wrist, that her thenar muscle strength was intact and that she was recovering well from the surgery (Tr. 21-24). These findings are consistent with the ALJ's RFC finding that plaintiff could perform light work and, thus, would not likely have changed his disability decision.
Dr. Sodha also completed a two-page functional capacity form for plaintiff on January 16, 2017 (Tr. 25-26). Although Dr. Sodha checked a box on that form indicating that plaintiff was "disabled", he failed to fill out any other sections on the form to indicate what exertion level plaintiff was capable of working at, how long she could sit or stand or any other specific functional limitations, other than indicating that plaintiff could use her left hand for repetitive motions, but not her right hand (Tr. 25-26). Even if this assessment had been before the ALJ at the time of his decision, it would have been proper for the ALJ to reject Dr. Sodha's opinion that plaintiff was disabled because it was unsupported by any explanation, medical findings or functional limitation assessments, and, as discussed above, a treating physician's "opinion that plaintiff appeared permanently disabled and unable to do any work is a conclusion of law specifically reserved to the judgment of the Commissioner."
Thus, remand is not required solely for consideration of this new evidence.
Accordingly, for all the foregoing reasons, the Commissioner's motion for judgment on the pleadings is granted and plaintiff's motion is denied. The Clerk of the Court is respectfully requested to mark D.I. 12 and D.I. 15 closed, and respectfully requested to close the case.
SO ORDERED.
20 C.F.R. § 404.1567(b).
