EDGARDO RAMOS, District Judge.
Barry Kevin Falk ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) challenging the decision of the Commissioner of Social Security ("Commissioner") to deny his application for disability benefits. Pending before the Court are the parties' cross-motions for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c). On June 22, 2016, Magistrate Judge Kevin Nathaniel Fox issued a Report and Recommendation ("R&R"), recommending that Plaintiff's motion be granted, the Commissioner's motion be denied, the ALJ's finding of not disabled be reversed, and the Commissioner be directed to pay benefits to Plaintiff. The Commissioner filed timely objections to the R&R.
For the reasons stated herein, both parties' motions are DENIED and the case is remanded to the Commissioner for further proceedings consistent with this opinion.
Plaintiff's application for disability benefits stems from an injury he sustained on January 18, 2009, while on duty as a New York State Police Trooper. On that date, Plaintiff was at the scene of a truck accident, where he slipped on ice, injuring his back. Tr. at 38. As a result of the incident, Plaintiff did not return to work, and he experienced back pain for which he sought treatment with various medical professionals. Based on a February 11, 2009 MRI scan, doctors concluded that Plaintiff was suffering an injury to his spine, specifically, spondylolisthesis at the L5-S1 level. Tr. at 531, 539-40, 783-84.
After more conservative treatment failed to alleviate his pain, in October 2009, Dr. James Farmer performed decompression and fusion surgery on Plaintiff's spine. Tr. at 769-71.
In January 2011, Plaintiff reported to Dr. Farmer that while he still had some lower back pain, the pain in his legs was essentially gone. Tr. at 780. Due to his steady progress, Dr. Farmer permitted Plaintiff to return to work on "light duty." Id. According to Plaintiff, his light duty assignment was "difficult" and "rough," as he was unable to leave his desk. Tr. at 54. Plaintiff claims he spent half of the eight-hour workday standing and the other half sitting or "kind of walking around in circles." Id.
At his next visit to Dr. Farmer in April 2011, Plaintiff reported "having a lot of bad days." Tr. at 781. He complained of pain in his buttocks and legs due to sitting at work, although he noted that he generally tended to do better when walking and standing. Id. When he returned to see Dr. Farmer in June 2011, Plaintiff reported that he was standing at work a lot because sitting caused him too much pain in his back and down the back of his legs. Tr. at 782. Dr. Farmer recommended that Plaintiff begin working out in the gym. Id.
In late September 2011, Plaintiff was put on disability retirement by the State Police. Tr. at 46, 54-56. Plaintiff did not want to retire, but he was given no choice. Tr. at 46. Plaintiff claims that his lieutenant and captain made calls to try to prevent his retirement, and that his captain told him that he would not care if Plaintiff walked around the communication room for the next ten years, so that he could retire with the benefit of twenty years of service. Tr. at 56. When Plaintiff returned to see Dr. Farmer in October 2011, Dr. Farmer concluded that Plaintiff's symptoms were chronic and were not likely to improve with continued conservative care. Tr. at 785.
Plaintiff's primary care physician, Dr. Lissa Scarlett, referred him to Dr. Syed Asim Husain for pain management. Tr. at 387-89. At his first visit with Dr. Husain on December 7, 2011, Plaintiff reported pain in his lower back that travelled down to both legs, and he rated his pain a 4 out of 10 in terms of intensity. Tr. at 387. Plaintiff also reported that his pain worsened with driving and sitting in a regular chair, and that his pain was relieved by walking and sitting in a reclined position. Tr. at 388. Dr. Husain diagnosed Plaintiff with chronic lumbosacral radiculitis, a radiating pain associated with the nerves. Tr. at 389. Dr. Husain prescribed medication and physical therapy for Plaintiff's pain, and noted that Plaintiff might be a candidate for a spinal cord stimulator. Id.
On January 6, 2012, Plaintiff reported to Dr. Scarlett that he had started going to the gym. Tr. at 415. He stated that he was doing the elliptical for 20 to 25 minutes per day, 3 to 4 days per week for the past week and a half. Id. A few days later, on January 9, 2012, Plaintiff received a caudal epidural—a steroid injection near the lower spine—and it provided minimal relief. Tr. at 425.
On January 19, 2012, Plaintiff reported to Dr. Husain that he finished physical therapy, which had also provided minimal relief. Tr. at 427. That same day, Dr. Husain filled out a progress report in connection with Plaintiff's case for workers' compensation benefits, wherein he opined that Plaintiff's complaints were consistent with his injury, that Plaintiff could not return to work because of his pain, and that Plaintiff was 100% temporarily impaired. Tr. at 899-900. On February 17, 2012, Dr. Husain filled out a follow-up report for the workers' compensation case, wherein he opined that Plaintiff was only 75% temporarily impaired, and that Plaintiff could return to work, but with limitations on bending, climbing, lifting, and operating heavy equipment. Tr. at 889-90.
Plaintiff continued to follow up with his physicians periodically throughout 2012.
On May 18, 2012, Plaintiff reported to Dr. Scarlett that he had stopped going to the gym. Tr. at 499. In June, he reported to Dr. Husain that his pain had worsened. Tr. at 509. He stated that there were a few days on which he was in tears. Id. Dr. Husain referred plaintiff to Dr. Howard Yeon for a consultation, and on July 3, 2012, after examining Plaintiff, Dr. Yeon reported that Plaintiff was still in the mid-late healing phase from his fusion surgery. Tr. at 594-96. On November 9, 2012, Dr. Husain completed another progress report for Plaintiff's workers' compensation case, opining that Plaintiff was 100% temporarily impaired. Tr. at 881-82. A few days later, in a letter regarding Plaintiff's MRI, Dr. Husain noted that Plaintiff's lumbosacral radiculitis was worsening. Tr. at 720.
Plaintiff continued to see Dr. Husain periodically in 2013. At times he reported increased pain; at times he reported that his pain had remained the same. See, e.g., Tr. at 868, 860, 1028, 1022, 1016. On February 21, 2013, Plaintiff returned to Dr. Farmer for a follow-up visit, where he reported that sitting bothered him the most, and that prolonged standing also bothered him. Tr. at 1014. Plaintiff noted that he was walking up to a mile a day, and Dr. Farmer noted that he felt Plaintiff should begin some workouts in the gym. Id. Plaintiff saw Dr. Farmer for another follow-up visit on May 28, 2013, and he continued to complain of the pain in his lower back, buttocks, and legs. Tr. at 1015. Plaintiff reported that he was exercising regularly, and Dr. Farmer noted that Plaintiff would begin another trial of physical therapy. Id. Plaintiff also discussed with Dr. Farmer that he was feeling increasingly depressed as a result of his chronic back pain. Id. On June 14, 2013, Dr. Husain noted that conservative treatment with physical therapy and medication had failed to adequately cover Plaintiff's pain. Tr. at 1019.
Plaintiff first applied for Social Security disability benefits on March 10, 2010, alleging disability from January 18, 2009, the date of his on-duty injury, to January 20, 2011, the date he returned to "light duty" work. Tr. at 84. Following a hearing at which Plaintiff testified, the administrative law judge ("ALJ") determined that Plaintiff was disabled during the applicable period. Tr. at 79-88.
On May 15, 2012, Plaintiff again applied for disability benefits, this time alleging disability beginning August 10, 2011. Tr. at 14. A hearing was held on June 21, 2013, at which Plaintiff and a vocational expert testified. Tr. at 31-71. In a decision dated August 16, 2013, the ALJ concluded that Plaintiff was not disabled. Tr. at 11-26.
Considering Plaintiff's testimony and medical records, the ALJ found that: (1) Plaintiff met the insured status requirements of the Social Security Act; (2) Plaintiff had not engaged in substantial gainful activity since August 10, 2011, the alleged disability onset date; (3) Plaintiff had severe impairments, including spondylolisthesis, lumbar radiculitis, sleep apnea, headaches, and obesity; (4) Plaintiff's impairments did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Appendix 1"); (5) while Plaintiff required a sit/stand option at will and needed to avoid working at unprotected heights and operating motor vehicles, Plaintiff retained the residual functional capacity ("RFC") to sit for six hours in an eight-hour workday, to stand and walk for two hours in an eight-hour workday, to occasionally lift, carry, push, and pull ten pounds, and to occasionally stoop, crouch, and climb stairs; (6) Plaintiff was 47 years old on the alleged disability onset date; (7) Plaintiff had at least a high school education; and (8) Plaintiff was able to communicate in English. Tr. at 16-24. Taking into account these findings and the testimony of a vocational expert, the ALJ further found that although Plaintiff was unable to perform any of his past relevant work, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. Tr. at 24-25.
In determining Plaintiff's RFC, the ALJ accorded "great weight" to the opinions of two independent medical examiners: Dr. Jose Corvalan, who evaluated Plaintiff on July 12, 2012 at the request of the Social Security Administration, and Dr. Paul Jones, who evaluated Plaintiff on January 24, 2013 for the New York State Workers' Compensation Board. Tr. at 23, 306-10, 911-16. Dr. Corvalan concluded that "due to [his] low back pain," Plaintiff had a "moderate limitation for sitting and standing for long periods of time, walking long distances, bending, squatting, climbing stairs, or lifting any heavy objects." Tr. at 309. Dr. Jones concluded that Plaintiff could return to work in a "sedentary position," although Plaintiff had to have a job where he could "change position as necessary," since his legs begin to go numb after sitting for any period of time. Tr. at 913. The ALJ noted that these two opinions provided substantial support for Plaintiff's RFC to perform "sedentary work." Tr. at 23. The ALJ accorded less weight to Plaintiff's treating physicians, Dr. Farmer and Dr. Husain, noting that Dr. Farmer did not provide a complete diagnosis of Plaintiff's disability and that Dr. Husain's "extreme" opinions regarding Plaintiff's level of impairment (i.e., 75% to 100%) were not specific and were not supported by his own reports. Tr. at 23-24.
The ALJ also discounted Plaintiff's statements regarding the intensity, persistence, and limiting effects of his pain in evaluating Plaintiff's RFC, citing four primary reasons. Tr. at 22. First, the ALJ noted that Plaintiff's daily activities, which included walking his dogs and exercising, were not limited to the extent one would expect given his complaints. Id. Second, the ALJ determined that Plaintiff's claims regarding his limits on sitting, standing, and walking were not well supported by any contemporaneous complaints to his treating sources. Id. Third, the ALJ concluded that Plaintiff's treatment since his surgery had been "essentially routine and/or conservative in nature" with the exception of the steroid injections he received. Tr. at 22-23. Finally, the ALJ noted that "[f]rom his own testimony, [Plaintiff] acknowledge[d] that he could have continued to work" in his "light duty" capacity with the State Troopers, "rais[ing] a question" as to whether Plaintiff's unemployment was actually due to his medical impairment or a desire not to engage in other occupations. Tr. at 23.
Plaintiff asked the Appeals Council to review the ALJ's decision. Tr. at 7-8. On March 18, 2015, Plaintiff's request was denied, rendering the ALJ's decision the final decision of the Commissioner in his case. Tr. at 1-4. On May 19, 2015, Plaintiff appealed the decision by filing the Complaint in this action. Doc. 1. The parties thereafter cross-moved for judgment on the pleadings. See Docs. 14-15, 21-22, 26.
On June 22, 2016, Magistrate Judge Fox issued the R&R. Doc. 28. Among other things, Magistrate Judge Fox concluded that the ALJ's finding regarding Plaintiff's RFC was not supported by substantial evidence. Id. at 13-16. Accordingly, he recommended that Plaintiff's motion be granted, the Commissioner's motion be denied, the ALJ's finding of not disabled be reversed, and the Commissioner be directed to pay benefits to Plaintiff. Id. at 18. The Commissioner filed timely objections to the R&R, Doc. 29, which Plaintiff opposed, Doc. 31.
A district court reviewing a magistrate judge's report and recommendation "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Parties may raise specific, written objections to the report and recommendation "[w]ithin fourteen days after being served with a copy." Id.; see also Fed. R. Civ. P. 72(b)(2). A district court reviews de novo those portions of the report and recommendation to which timely and specific objections are made. 28 U.S.C. § 636(b)(1)(C); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). The district court may adopt those parts of the report and recommendation to which no party has timely objected, provided no clear error is apparent from the face of the record. Lewis v. Zon, 573 F.Supp.2d 804, 811 (S.D.N.Y. 2008). Here, the Commissioner objected to Magistrate Judge Fox's recommended rulings regarding (1) the ALJ's assessment of Plaintiff's RFC; (2) the ALJ's reliance on the vocational expert's testimony; and (3) the remedy for the ALJ's purported errors. Doc. 29. Thus, the Court reviews these issues de novo.
This Court has the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). In reviewing a denial of disability benefits, however, the Court may not determine de novo whether an individual is disabled. Id. Rather, the Court may only reverse the ALJ's determination if it is based upon legal error or is not supported by substantial evidence. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). "Substantial evidence is `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the ALJ's findings as to any fact are supported by substantial evidence, those findings are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995). If, on the other hand, the ALJ's determination is not supported by substantial evidence or contains legal error, the determination must be reversed or remanded. Rosa, 168 F.3d at 77.
An individual is considered "disabled" under the Social Security Act if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). In order to determine whether an individual is disabled, the Commissioner follows a five-step sequential evaluation process set out in 20 C.F.R. § 404.1520. "If at any step a finding of disability or nondisability can be made, the [Social Security Administration] will not review the claim further." Barnhart v. Thomas, 540 U.S. 20, 24 (2003).
At step one, the Commissioner determines whether the individual is engaged in any "substantial gainful activity;" if he is, he is not disabled. 20 C.F.R. § 404.1520(a)(4)(i), (b). At step two, the Commissioner determines whether the individual has a "severe impairment" that "significantly limits [his] physical or mental ability to do basic work activities;" if he does not, he is not disabled. Id. § 404.1520(c), (a)(4)(ii). At step three, the Commissioner determines whether the individual has an impairment that meets or equals one of those listed in Appendix 1; if he does, he is disabled. Id. § 404.1520(a)(4)(iii), (d). If he does not, the Commissioner will assess and make a finding about the individual's RFC—or "the most [he] can still do despite [his] limitations"—based on all the relevant medical and other evidence in his case record. Id. §§ 404.1520(e), 404.1545(a)(1). At step four, the Commissioner determines whether, considering his RFC, the individual can still do his past relevant work; if he can, he is not disabled. Id. § 404.1520(a)(4)(iv), (f). Finally, at step five, the Commissioner determines whether, considering his RFC, age, education, and work experience, the individual can make adjustment to other work; if he cannot make adjustment to other work, he is disabled, and if he can, he is not. Id. § 404.1520(a)(4)(v), (g).
Having reviewed the record, the Court affirms the ALJ's findings at steps one through three.
The ALJ's assessment of Plaintiff's RFC, on the other hand, is flawed in numerous respects. As an initial matter, the ALJ erred by failing to describe Plaintiff's RFC with the requisite level of specificity. Social Security Ruling 96-9p provides:
SSR 96-9p (7/2/96), 1996 WL 374185, at *7.
Here, the ALJ concluded that Plaintiff had the RFC to perform less than the full range of sedentary work, since he required a sit/stand option at will.
In addition, the ALJ's determination that Plaintiff was capable of sitting for six hours and standing and walking for two hours in an eight-hour workday is not supported by substantial evidence. Nowhere in the ALJ's decision does he explain the basis for this precise finding regarding Plaintiff's capabilities. This Court has carefully reviewed the medical evidence, and nothing therein supports such a finding. None of Plaintiff's treating physicians provided a medical opinion as to Plaintiff's capabilities in this regard.
The only evidence in the record speaking specifically to the length of time Plaintiff could sustain sitting and standing in a workday is Plaintiff's own testimony, which the ALJ unduly discredited. Plaintiff testified that he began to feel pain after approximately ten to fifteen minutes of sitting, and that he had to lie down about three or four times during the course of a normal day. Tr. at 50. Plaintiff also testified that he would be unable to sit or stand during an eight-hour workday without being able to go for a walk or lay down. Tr. at 57. Notably, when asked about his "light duty" position, Plaintiff explained that he struggled with the work, Tr. at 57, that he spent less than half the day sitting, and that he spent some of the day just "walking around in circles," Tr. at 54.
The ALJ determined that Plaintiff's claims were not entirely credible, but substantial evidence does not support such a finding. As the ALJ noted, Plaintiff has an "excellent work history." Tr. at 23. Plaintiff served in the Air Force for approximately ten years, worked as an airline mechanic for approximately two years, and served as a State Trooper for approximately eleven years prior to injuring his back. Tr. at 37, 217. "A claimant with a good work record is entitled to substantial credibility when claiming an inability to work because of a disability." Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983); see also Woodford, 93 F. Supp. 2d at 530 n.14 (noting that a plaintiff's testimony should have been given "substantial weight" where she worked consistently for thirty-one years prior to her accident).
Instead of according Plaintiff's testimony substantial weight, the ALJ found that Plaintiff was not entirely credible, based on testimony and inconsistencies not actually present in the record. The ALJ relied on Plaintiff's testimony that he wanted to continue working to discredit his claims, Tr. at 23, but a desire to work and the capability to work are two separate issues, and, in any event, "any evidence of a desire by [Plaintiff] to work would merely emphasize the positive value of his [23-year] employment history," Rivera, 717 F.2d at 725. The ALJ also stated that Plaintiff "acknowledge[d]" that he could have continued working at the "light duty" position, Tr. at 23, but Plaintiff in fact testified that he struggled with the work, and that he spent time during the workday walking around in circles because of his pain, Tr. at 54, 57.
The ALJ also found that Plaintiff's complaints were inconsistent with evidence that he could walk up to one mile a day. Tr. at 22. This activity is, however, entirely consistent with Plaintiff's complaints—reported throughout the course of his medical treatment—that sitting and standing worsened his pain, whereas movement alleviated it.
Finally, the ALJ discredited Plaintiff's testimony on the basis of an assessment that, except for the steroid injections he received, Plaintiff's treatment since his surgeries had been "essentially routine and/or conservative in nature." Tr. at 22-23. This finding is not only better left to the judgment of a medical professional, Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998),
Because the ALJ's assessment of Plaintiff's RFC was not supported by substantial evidence and was based upon legal error, remand is appropriate. See Horan v. Astrue, 350 F. App'x 483, 485 (2d Cir. 2009), Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996); Norman v. Astrue, 912 F.Supp.2d 33, 74 (S.D.N.Y. 2012). On remand, the ALJ should reassess Plaintiff's credibility, taking into account the above-discussed concerns, and, if necessary, procure medical evidence that specifically addresses the number of hours Plaintiff could sustain sitting and standing in a workday and the frequency with which Plaintiff must alternate sitting and standing.
On remand, the ALJ will also need to revisit his determination with respect to steps four and five of the sequential evaluation process. The ALJ arrived at his findings at these steps by posing hypothetical questions to the vocational expert regarding Plaintiff's limitations.
