ROBERT W. LEHRBURGER, Magistrate Judge.
Yanina Calderon brings this action pursuant to sections 205(g) and 1631(c)(3) of the Social Security Act (the "Act"), 42 U.S.C. §§ 405(g), 1383(c)(3), seeking review of a determination of the Commissioner of Social Security ("Commissioner") finding that she is not entitled to Supplemental Security Income ("SSI") or disability insurance benefits ("DIB"). The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Ms. Calderon has not responded. For the reasons set forth below, I recommend that the Commissioner's motion for judgment on the pleadings be denied and that the case be remanded to the Commissioner for further proceedings consistent with this Report and Recommendation.
Ms. Calderon applied for DIB and SSI on June 19, 2013, alleging disability as of November 15, 2011. (R. at 24.
Ms. Calderon was born in September 1963 and was forty-eight on her alleged disability onset date. (R. at 32, 97.) She was fifty-two years old when the ALJ issued his decision. (R. at 33, 97.) Ms. Calderon lives with her adult son, daughter-in-law, and two grandchildren. (R. at 66, 294.) She completed eleventh grade and worked as a community worker and receptionist at United Bronx Parents from 1997 to 2001, a cashier, sales, and loss production associate at Borders Bookstores from 2003 until 2007, and a customer service representative and cashier at Gracious Home from 2007 until 2010. (R. at 66, 74, 84, 217.) She currently does not work, stating that she became unable to work on or around her alleged disability onset date. (R. at 66-67, 152.) Ms. Calderon alleges disability due to lupus, heel spurs, arthritis, hypothyroidism, vitamin D deficiency, depression, seasonal allergies, and asthma. (R. at 67-68, 76, 90.)
Ms. Calderon was diagnosed with asthma around 1978 and with hypothyroidism
Ms. Calderon stated in her social security application that she visited Dr. Hemant Patel from spring 2011 to at least November 2013. (R. at 199.) Dr. Patel treated her for her thyroid problem. (R. at 199.) Additionally, she stated that Dr. Patel prescribed her medication for her asthma, hypothyroidism, arthritis, pressure, pain, and allergies. (R. at 201.) A note dated October 2, 2014, written by a different doctor, stated that Dr. Patel diagnosed her with lupus. (R. at 313.) No records, however, are in the Record from Dr. Patel.
In January 2013, Ms. Calderon stated that she visited Dr. Jignasa Joshi, a Doctor of Podiatric Medicine (R. at 226), and that she followed up with Dr. Joshi until at least December 21, 2013 (R. at 200). There are no visitation notes contained in the Record, however. Instead, there is a short note from Dr. Joshi to an unnamed addressee
On February 13, 2013, Ms. Calderon presented to Dr. Deepika Arora at Mount Sinai Hospital ("Mt. Sinai"). (R. at 245-46.) Dr. Arora reported a history of hypothyroidism, heel spurs, asthma, xerostomia (dry mouth), alopecia (hair loss), joint pain, fatigue, photosensitivity, and myalgias. (R. at 246.) Dr. Arora noted that Ms. Calderon met some of the criteria for lupus, and positive Hepatitis C antibodies were present, noting that the arthralgias "could be related to Hep C arthropathy." (R. at 247.) Ms. Calderon reported knee pain and hand swelling. (R. at 246.) Her mood was appropriate and she was "well-appearing." (R. at 247.) A MCP/MTP compression test was negative and there was no synovitis, but she had bilateral knee crepitus. (R. at 247.) Her sensation and strength were intact. (R. at 247.)
On February 21, 2013, x-rays were conducted of Ms. Calderon's hands. (R. at 266.) The x-rays showed no evidence of erosive change, dislocation, or displaced fracture, and joint spaces appeared grossly unremarkable. (R. at 266.) A foreshortening of the fifth metacarpals bilaterally was noted but the examiner noted that it could "represent normal variation." (R. at 266.) The test was interpreted by Sridhar Vatti and reviewed by Dr. Arora and Dr. Oliva Ghaw. (R. at 266.) X-rays of her feet and ankles also showed no erosive change, displaced fracture, or dislocation, and the joint spaces appeared unremarkable. (R. at 268.) However, bilateral plantar calcaneal spurs were noted. (R. at 268.)
Ms. Calderon's symptoms and exam findings were unchanged at an April 15, 2013 visit with Dr. Arora. (R. at 239-40.) Dr. Arora noted, however, that the "constellation of symptoms/signs/Lab work" — including arthralgias, alopecia, sicca, photosensitivity, myalgias, malar rash, and "Serologically positive for ANA" — was consistent with a diagnosis of systemic lupus erythematosus (SLE) as opposed to Sjogren's syndrome.
At a July 30, 2013 follow-up visit with Dr. Arora, few changes from previous symptoms and findings were noted. (R. at 230, 236.) He stated that Ms. Calderon was not experiencing any relief. (R. at 230.) He noted that she had "negative lupus and Sjogren specific serologies" so far but that she had persistent arthralgias, mild alopecia, sicca, photosensitivity, myalgia, and a malar rash. (R. at 236.) He also noted a vitamin D deficiency. (R. at 236.) In November 2013, Dr. Arora referred Ms. Calderon to physical therapy with an "associated diagnoses" of lupus. (R. at 275.)
On April 14, 2014, Ms. Calderon reported to the emergency department at Mt. Sinai. (R. at 343.) She complained of shortness of breath, dizziness, blurry vision, arm numbness, fatigue, and nausea; she stated that the episode began when "going outside into bright sun" and that she had such episodes frequently. (R. at 344-46.) The records note that she had a history of bilateral knee pain, "hepatitis C antibody," lupus, asthma, and thyroid disease. (R. at 344-45.) She denied neck and back pain, arthralgia, and inability to ambulate. (R. at 344-46.) She had a full range of motion, normal strength, and was oriented to personal, place, date, and time. (R. at 346.) She appeared well-developed and well-nourished. (R. at 346.) Her symptoms resolved, and she was discharged. (R. at 346-48.)
It appears from the Record that Ms. Calderon presented at Metropolitan Hospital Center ("MHC") in December of 2013 and followed up after the initial visit. (R. at 300.) However, there are no notes from MHC in the Record dated before June 11, 2014.
On June 11, 2014, Ms. Calderon presented to MHC for several tests. The records note that she had a hypothyroidism diagnosis as well as gastroesophageal reflux disease. (R. at 324, 332.) Dr. "T Newman" reported that her lung volumes were "essentially normal" but that there was a mild reduction in their diffusing capacity, which could have been associated with anemia, emphysema, embolism, and pulmonary vasculitis. (R. at 323.) Dr. Newman noted that there was "good patient effort, comprehension and coordination." (R. at 323.)
On June 12, 2014, she met with Dr. Ambika Kataria for a behavioral health visit. (R. at 309-11.) Ms. Calderon reported depression due to her lupus and multiple appointments, and that she could not do any sun related activities due to her illness. (R. at 309.) She had a desire to "help youth but can't." (R. at 309.) She reported decreased energy, concentration, and motivation as well as crying. (R. at 309.) She showed cooperative attitude, alert attention, normal speech, appropriate affect, calm mood, intact thought process, rational and logical thought content, no suicidal or homicidal ideation, no judgment impairment, and good impulse control. (R. at 309.) Dr. Kataria diagnosed her with a mood disorder, "THC abuse," lupus, heel spur syndrome, hypothyroidism, psychosocial, and assigned her a Global Assessment of Functioning ("GAF") score of 65. (R. at 310.)
On July 10, 2014, Ms. Calderon again met with Dr. Kataria. (R. at 305.) Dr. Kataria reported that Zoloft was helping but that Ms. Calderon had decreasing energy and concentration, along with increasing fatigue and joint pain that was "taking over [her] life." (R. at 305.) Ms. Calderon continued to be positive however and reported family support. (R. at 305.) She reported sleeping about six to seven hours with Atarax. (R. at 305-06.) She was calm, cooperative, and pleasant, and a mental status exam demonstrated alert attention and concentration, normal speech, appropriate affect, calm mood, intact thought processes, rational and logical thought content, no suicidal ideation, no judgment impairment, and good impulse control. (R. at 305.) She was diagnosed with a mood disorder, THC abuse, lupus, heel spur syndrome, hypothyroidism, psychosocial, and had a GAF score of 65. (R. at 305-06.)
On July 24, 2014, Ms. Calderon met with Dr. Caroline Badeer. (R. at 320.) Ms. Calderon reported intermittent headaches, poor sleep, depression, memory loss, and fatigue. (R. at 320.) Dr. Badeer noted that she had pseudodementia, and that "her memory complaints are most likely multi-factorial including thyroid, poor sleep, depression." (R. at 320.) Dr. Badeer prescribed Neurontin, ordered immunofixation tests due to marrow changes seen in a brain MRI, and referred Ms. Calderon to an endocrinologist due to her persistently high levels of thyroid-stimulating hormones. (R. at 320.)
On July 29, 2014, Ms. Calderon attended behavioral health group therapy, where she was quiet and passively participated. (R. at 303.) She expressed interest in individual therapy. (R. at 303.) She was diagnosed with a depressive disorder. (R. at 303.)
On September 11, 2014, Dr. Kataria met with Ms. Calderon for a follow-up behavioral health visit. (R. at 300.) Dr. Kataria noted that Ms. Calderon was cooperative, alert, pleasant, and calm and had appropriate affect and speech, normal psychomotor activity, and no impairment in judgment. (R. at 300.) Ms. Calderon reported having "energy." (R. at 300.) Ms. Calderon also reported a history of depression and that she could not "do sun related activities due to her illness." (R. at 300.) She was taking Zoloft with good results and Atarax to aid with sleep. (R. at 300.) She denied adverse reactions to the medications and denied experiencing manic, anxious, or psychotic symptoms. (R. at 301.) Dr. Kataria diagnosed her with depressive disorder due to lupus, "[t]he abuse," heel spur syndrome, and hypothyroidism; Ms. Calderon had a GAF score of 65. (R. at 301.) Dr. Kataria recommended continuing with Atarax and Zoloft and to return in two months. (R. at 301-02.)
On September 25, 2014, Ms. Calderon presented to Dr. Gerardo M. Cabanillas Salazar for follow up. (R. at 316-318.) Ms. Calderon complained of headaches, difficulty sleeping, and forgetfulness. (R. at 316.) Dr. Cabanillas Salazar noted that her headaches had responded "very well" to Neurontin and now only occurred "once in a while." (R. at 312.) Dr. Cabanillas Salazar also noted that while Ms. Calderon was "still a little bit forgetful," she was "doing much better" because she was doing memory exercises. (R. at 316.) Ms. Calderon's fatigue and sleeping difficulties usually occurred when she had Lupus flare-ups. (R. at 316.) At that time, she was taking levothyroxine, hydroxychloroquine, Neurontin, hydroxyzine, and Zoloft. (R. at 316.) Her motor skills and sensation were unremarkable and her gait was normal. (R. at 316.) She was oriented times three. (R. at 317.) Dr. Cabanillas Salazar noted that Ms. Calderon was "doing quite well overall," and that her main problem was continued insomnia. (R. at 318.)
On October 2, 2014, Ms. Calderon met with Dr. Virendra Tewari. (R. at 313-14.) She complained of abdominal pain. (R. at 313.) Dr. Tewari noted that she had a history of hypothyroidism, asthma, obesity, and had reflux symptoms. (R. at 313-14.) Dr. Tewari noted that she may have lupus and that she was "diagnosed [for lupus] outside" but that a blood test at MHC was negative. (R. at 313.) A colonoscopy showed a sigmoid colon polyp that turned out to be hyperplastic; a 2008 colonoscopy showed four tubular adenoma. (R. at 313.)
On November 20, 2014, Ms. Calderon visited with Laura George, PhD. (R. at 298.) Dr. George noted that Ms. Calderon had missed her first scheduled appointment and was very late for the November 20 appointment; Dr. George told Ms. Calderon that "her motivation for treatment is not obvious [and] seems to be almost totally absent." (R. at 297.) Dr. George noted cooperative attitude, normal psychomotor activity, alert attention and concentration, appropriate affect, calm mood, intact thought process, rational and logical through process, no social ideation, no judgment impairment, and good impulse control. (R. at 297.) Dr. George diagnosed her with a borderline personality disorder. (R. at 297.)
After a December 10, 2014 follow-up visit, Dr. George noted that Ms. Calderon "won't come right out and say it but she clearly feels taken advantage of" by her living situation with her family members. (R. at 294.) Her lupus was bothering her. (R. at 294.) Her mental status remained unchanged except that her affect appeared constricted, her mood anxious and dysthymic, her judgment mildly impaired, and she had minimally impaired impulse control. (R. at 294.) Dr. George diagnosed her as having a depressive disorder. (R. at 294-95.)
On January 5, 2015, Ms. Calderon presented to Dr. Raihana Khorasanee, who was covering for Dr. Leon Bernhardt, who had yet to see her. (R. at 291.) Dr. Khorasanee noted that Ms. Calderon was to see Dr. Bernhardt in three months. (R. at 291.) Ms. Calderon reported pain from lupus and thyroid problems. (R. at 291.) She spoke in a lazy tone, had a dysthymic mood, and had mild impairment in judgment. (R. at 291.) Her attitude was cooperative, her psychomotor activity was within normal limits, and her affect, mood, impulse control, and thought process were intact and appropriate. (R. at 291.) Dr. Khorasanee diagnosed her with mood and borderline personality disorders. (R. at 291.)
A statement dated July 2, 2015, provided by Dr. Bernhardt to the Commissioner, stated that Ms. Calderon was receiving treatment since December 31, 2014 once per month. (R. at 364.) There are no notes from Dr. Bernhardt in the Record, however, and no notes from MHC after January 5, 2015.
Dr. Bernhardt's July 2, 2015 report gave his opinion of whether Ms. Calderon was disabled. (R. at 364-72.) He stated that she was diagnosed with major depression, borderline personality disorder, lupus, "chronic illness," and assigned her a GAF score of 50. (R. at 365.) He stated that her conditions would last at least twelve months. (R. at 366.) Her daily activities were "very limited by [the] combination of [lupus] and depression." (R. at 367.) Ms. Calderon's symptoms included whole body pain and depression, and he reported that she would cry during sessions. (R. at 364-65.) Ms. Calderon would not go out, did not want to be around people, did not cook anymore, gave up reading, stopped drawing, felt like she failed her children, had no appetite, had no energy, and had lost interest. (R. at 364-65.) She had been depressed since she was a teenager. (R. at 365.) She had to lie down for two to three hours several times each day because of her "many physical problems," and she would work on a project for a few minutes and then sleep for hours. (R. at 366, 368.) He stated, "[W]hen people come to the apartment, [she] retreats to bedroom." (R. at 367.) Dr. Bernhardt further stated that Ms. Calderon had marked limitations in concentration and persistence of pace resulting in failure to complete tasks in a timely manner in a work setting. (R. at 368.) She was taking Zoloft, among other things, and had been seeing a psychotherapist. (R. at 366.)
Dr. Bernhardt filled out summary conclusions, noting that Ms. Calderon would have marked limitations in: remembering locations and work-like procedures; understanding and remembering detailed instructions; carrying out detailed instructions; maintaining attention and concentration for extend periods; maintaining a schedule and regular attendance; sustaining a routine without special supervision; working in coordination or proximity to others without being distracted; completing a normal workday and workweek without interruptions from psychologically bases symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; accepting instructions and responding appropriately to criticism; getting along with coworkers or peers without distracting them or exhibiting behavioral extremes; responding appropriately to changes in work setting; being aware of normal hazards and taking precautions; and setting realistic goals or making plans independent of others.
Dr. Bernhardt further noted that Ms. Calderon would have moderate limitations in: carrying out very short and simple instructions; making simple work related decisions; interacting appropriately with the general public; asking simple questions or request assistance; maintaining a socially appropriate behavior and adhering to basic standards of neatness and cleanliness; and traveling in an unfamiliar place or using public transportation. (R. at 370-71.) She would have no significant limitations in understanding and remembering very short and simple instructions. (R. at 370.)
Dr. Bernhardt concluded that Ms. Calderon "cannot work," stating, "As if the combination of Lupus symptoms were not enough, there are the straightforward limitations of depression and borderline personality disorder to prevent good interaction with supervisors and colleagues." (R. at 372.)
At the hearing before the ALJ, Ms. Calderon testified that her lupus caused motion sickness, dizziness, hair loss, photosensitivity, shortness of breath, fatigue, muscle pain, head pain, joint pain, morning stiffness in her hands, and arm numbness at night. (R. at 67-68, 76-78, 83.) She had joint swelling most of the time, and had frequent lupus flare-ups that caused increased pain, a flu-like feeling, and excessive sleeping. (R. at 68-69, 73, 76.) She stated that the flare-ups occurred frequently but did not occur every week. (R. at 77.) When asked if they occurred every month, she testified, "It depends on how much it lasts. It never lasts the same. Like depends. Sometimes it lasts two days. Sometimes it can last five days. Sometimes it can last a week or two." (R. at 77.) She testified that her medication helped but did not take away the symptoms. (R. at 78.) She also stated that her heel spurs made it painful to walk because it "feels like you have glass on your heels." (R. at 78.) She would receive injections three times per year in connection with this pain.
Ms. Calderon stated that she could walk three blocks before stopping to rest due to knee pain, that sitting too long caused discomfort and pain, and she had to frequently lie down during the day. (R. at 70-72, 78.) She testified that she could not bend down, had trouble getting up because of knee pain, sometimes could not reach, could not lift much, and had trouble using her dominant hand because her knuckles were swollen, although for certain tasks she could compensate with her left hand. (R. at 71-72.) She reported treating her shoulder, head, and neck pain with ice packs. (R. at 72.)
Ms. Calderon further testified that she treated her depression with medication and therapy but that she still had difficulty when having lupus flare-ups. (R. at 73, 81.) She stated she did not go out anymore, did not see anyone but her family who lived with her, had lost interest in prior activities like reading and drawing, and experienced insomnia except during lupus flare-ups. (R. at 77-78, 80-81.) She was very forgetful and would forget appointments, and one of her sons moved in with her in 2011 when she forgot to turn the stove off a few times. (R. at 73-74, 80.)
In her application for DIB and SSI, Ms. Calderon stated that her "breathing was really bad" in the summer and that she "couldn't take the sun." (R. at 198.) She stated that her knees hurt, her hands were stiff in the morning, and her bones were getting weaker. (R. at 198.) She stated that she was still able to take care of her personal needs but that it took her "longer to do them now." (R. at 202.) She stated in her application that she took Albuterol, Ventolin, calcium, levothyroxine, Plaquenil, naproxen, meloxicam, Zyrtec, vitamin D supplements, trazodone, and Zoloft. (R. at 201, 221, 224.)
A claimant is disabled under the Social Security Act and therefore entitled to SSI or DIB if she can demonstrate, through medical evidence, that she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than [twelve] months." 42 U.S.C. § 423(d)(1)(A) (DIB); accord 42 U.S.C. § 1382c(a)(3)(A) (SSI)
To determine whether a claimant is entitled to disability benefits, the Commissioner employs a five-step sequential analysis. 20 C.F.R. §§ 404.1520(a)(4) (DIB),
The Social Security Act provides that the Commissioner's findings "as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). A court reviewing the Commissioner's decision may set aside a decision of the Commissioner only if it is based on legal error or if it is not supported by substantial evidence. See Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). Judicial review, therefore, involves two levels of inquiry. First, the court must decide whether the Commissioner applied the correct legal standard. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, No. 05 Civ. 4254, 2008 WL 4452359, at *8 (S.D.N.Y. April 29, 2008). Second, the court must decide whether the ALJ's decision was supported by substantial evidence. Tejada, 167 F.3d at 773; Calvello, 2008 WL 4452359, at *8. "In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Longbardi, 2009 WL 50140, at *21 (citing Brown, 174 F.3d at 62, and Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)). Substantial evidence in this context is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hahn v. Astrue, No. 08 Civ. 4261, 2009 WL 1490775, at *6 (S.D.N.Y. May 27, 2009) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Under Rule 12(c) of the Federal Rules of Civil Procedure, a party is entitled to judgment on the pleadings if she establishes that no material facts are in dispute and that she is entitled to judgment as a matter of law. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999); Morcelo v. Barnhart, No. 01 Civ. 743, 2003 WL 470541, at *4 (S.D.N.Y. Jan. 21, 2003).
The ALJ's decision and the government's position in this case are entirely at odds with applicable legal standards and the Record. There are no less than seven reasons requiring remand: (1) the Commissioner failed to make sufficient efforts to obtain records from Dr. Bernhardt, MHC, Dr. Joshi, Dr. Patel, and Physiocare Physical Therapy; (2) the ALJ failed to obtain medical source reports or consultative exams, instead applying his own lay knowledge to assess medical facts; (3) the ALJ incorrectly applied the treating physician rule because he referred to Dr. Bernhardt as both a treating and non-treating physician, did not apply consistent weights to Dr. Bernhardt's opinion, did not assess Dr. Bernhardt's finding that Ms. Calderon's lupus was disabling, and did not take into account medical evidence supporting Dr. Bernhardt's opinion; (4) at step three, the ALJ ignored the great weight of evidence demonstrating that Ms. Calderon's lupus affects several body systems and causes a panoply of symptoms, instead stating that there was no evidence; (5) the ALJ did not take Ms. Calderon's heel spurs into account in his opinion at all even though it was a diagnosed impairment; (6) the ALJ's RFC determination was flawed because it did not take into account Ms. Calderon's mental conditions, failed to analyze her symptoms in combination with each other, and was not otherwise supported by substantial evidence; and (7) the ALJ's credibility assessment was flawed.
The ALJ analyzed Ms. Calderon's claim pursuant to the five-step sequential evaluation process and concluded that she was not disabled on or after the date she filed for benefits. (R. at 24-33.) The ALJ first determined that Ms. Calderon met the insured requirements of the Social Security Act through December 31, 2015, and that she had not been engaged in substantial gainful activity since November 15, 2011. (R. at 26.) At step two, the ALJ found that Ms. Calderon's lupus qualified as a severe impairment. (R. at 26.) He found, however, that her asthma, hypothyroidism, headaches, stomach problems, obesity, and hand or knee problems were non-severe. (R. at 26.) He further found that her mood disorder did not qualify as severe because it caused no more than minimal limitation on her ability to perform basic work activities. (R. at 27.) In making these determinations, the ALJ assigned Dr. Bernhardt's opinion no weight. (R. at 38.)
At step three, the ALJ found that none of Ms. Calderon's impairments, either individually or in combination, were the same or as equally severe as one of the impairments listed in the regulations. (R. at 29.) Specifically, her lupus did not qualify because there was no evidence that it involved two or more organs or body systems and there were no repeated manifestations with at least two constitutional symptoms (severe fatigue, fever, malaise, or involuntary weight loss). (R. at 29.) The ALJ further stated, "There is also no indication in the medical evidence that the claimant has marked limitation of activities of daily living, marked limitation in maintaining social functioning, or marked limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence or pace caused by her lupus." (R. at 29.)
Next, the ALJ reviewed the evidence in the Record and concluded that Ms. Calderon had the residual functional capacity to perform the full range of light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b). (R. at 29-31.) In making this determination, the ALJ noted that Dr. Bernhardt's opinion had been given little weight.
At step four, the ALJ found that Ms. Calderon could perform her past relevant work as a bank customer service representative as well as a retail sales representative because both jobs were performed at the light exertional level. (R. at 31-32.) In the alternative, he found that given Ms. Calderon's age, education, work experience, and RFC, there were other jobs existing in significant numbers in the national economy that Ms. Calderon could also perform. (R. at 32.)
"Before determining whether the Commissioner's conclusions are supported by substantial evidence," a court "must first be satisfied that the claimant has had a full hearing under the . . . regulations and in accordance with the beneficent purposes of the [Social Security] Act." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (alterations in original) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). "Even when a claimant is represented by counsel, it is the well-established rule in [the Second] [C]ircuit `that the social security ALJ, unlike a judge in a trial, must on behalf of all claimants . . . affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding.'" Id. (third alteration in original) (quoting Lamay v. Commissioner of Social Security, 562 F.3d 503, 508-09 (2d Cir. 2009)); see also Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) ("Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.").
Generally, "if a physician's report is believed to be insufficiently explained, lacking in support, or inconsistent with the physician's other reports, the ALJ must seek clarification and additional information . . . to fill any clear gaps before rejecting the doctor's opinion." Ureña-Perez v. Astrue, No. 06 Civ. 2589, 2009 WL 1726217, at *29 (S.D.N.Y. Jan. 6, 2009), report and recommendation adopted as modified, 2009 WL 1726212 (S.D.N.Y. June 18, 2009). Where the gaps or inconsistencies concern a treating physician's opinions, and in particular those of a treating psychiatrist, this duty is especially crucial. See, e.g., Craig v. Commissioner of Social Security, 218 F.Supp.3d 249, 268 (S.D.N.Y. 2016) ("The duty to develop the record is particularly important where an applicant alleges he is suffering from a mental illness, due to the difficulty in determining whether these individuals will be able to adapt to the demands or `stress' of the workplace." (quoting Merriman v. Commissioner of Social Security, No. 14 Civ. 3510, 2015 WL 5472934, at *19 (S.D.N.Y. Sept. 16, 2015))). "Every reasonable effort means that the ALJ will make an initial request for evidence from the claimant's medical source and make one follow up request between 10-20 calendar days after the initial one." Assenheimer v. Commissioner of Social Security, No. 13 Civ. 8825, 2015 WL 5707164, at *15 (S.D.N.Y. Sept. 29, 2015) (internal quotation marks omitted) (quoting 20 C.F.R. § 416.912(d)(1)). "[F]ailure to develop conflicting medical evidence from a treating physician is legal error requiring remand." Concepcion v. Colvin, No. 12 Civ. 6545, 2014 WL 1284900, at *13 (S.D.N.Y. March 31, 2014) (quoting Miller v. Barnhart, No. 03 Civ. 2072, 2004 WL 2434972, at *8 (S.D.N.Y. Nov. 1, 2004)).
The Record in this case is markedly incomplete. Notes from Dr. Bernhardt, MHC, Dr. Joshi, Dr. Patel, and Physiocare Physical Therapy are missing.
The ALJ did not develop the Record sufficiently as to Ms. Calderon's visits with MHC and Dr. Bernhardt. The oldest note from MHC is dated June 2014 (R. at 324), but records from MHC indicated that she had been a patient there since December 2013 (R. at 300.) There is no evidence that the ALJ attempted to address this gap. There is also no evidence that the ALJ tried to obtain notes from MHC dated after January 5, 2015. Dr. Bernhardt's July 2, 2015 opinion stated that Ms. Calderon was being treated once per month since December 31, 2014. (R. at 364, 372.) But the last note from MHC was dated January 5, 2015, leaving almost a six-month gap in the Record. (R. at 291.) Even though MHC submitted its records to the Commissioner in April 2015, the ALJ should have made an effort to follow up with MHC.
This issue is especially significant because the ALJ's finding that Dr. Bernhardt's opinion was entitled to no weight hinged partially on the lack of treatment notes from the hospital or from the doctor. The ALJ stated, "It is noted that Dr. Bernhardt completed the form in July 2015 but the last treatment notes from the hospital were in January 2015. . . ." (R. at 28.) The Commissioner's failure to follow up on this obvious deficiency was legal error requiring remand. See Rosa, 168 F.3d at 79 ("[A]n ALJ cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record."); Clark v. Commissioner of Social Security, 143 F.3d 115, 118 (2d Cir. 1998) ("[Doctor's] failure to include this type of support for the findings in his report does not mean that such support does not exist. . . . There is, to say the least, a serious question as to whether the ALJ's duty to develop the administrative record was satisfied in this case.").
Next, there are no notes in the Record from Dr. Hemant Patel even though those notes are vital to this case. From at least spring 2011 to November 2013, Dr. Patel treated and provided medication to Ms. Calderon for her hypothyroidism, asthma, and arthritis; he also diagnosed her with lupus. (R. at 191, 199, 313.). The Commissioner points to some evidence in the Record suggesting attempts to contact Dr. Patel. That evidence is insufficient. Specifically, the government's brief points to an internal form ("Development Action Form"), which appears to document the attempts made to contact doctors in order to develop the Record. (R. at 50-53.) It contains a line under the heading "Development Action" with the name "DR HERMANT [sic]" dated September 9, 2013, under which it states "generation complete." (R. at 50.) The next line is dated two weeks later and states "FU/DR HERMANT [sic]," below which it states "generation complete." (R. at 50.) The government has not suggested how the Court is to interpret the information in this form or what "generation complete" means. Nor has the government set out what efforts were specifically made or what communication was sent to Dr. Patel. The government further points to the Commissioner's initial Disability Determination Explanation, which suggests that evidence was requested of Dr. Patel, but the Explanation is equally insufficient for the reasons set forth above; furthermore, it does not indicate whether there was any follow-up. (R. at 92.) Without knowing more about the efforts the Commissioner made, it is impossible for the Court to assure itself that the proper efforts were made to develop the Record. The Commissioner has therefore failed to show that she made reasonable efforts to develop the Record in this respect.
There are also no treatment notes in the Record from Dr. Joshi at TEG Podiatric Group. Dr. Joshi's notes are important because he treated Ms. Calderon for her heel spurs from November 2012 to at least December 2013. (R. at 192, 200, 225.) This treatment included both medication and injections. (R. at 192, 200, 225.) There is some evidence that the Commissioner attempted to contact Dr. Joshi, but that evidence is again insufficient. The Development Action Form contains a line entitled "TEJ PODIATRIC/FAX" dated September 9, 2013. (R. at 51.) Under that line, it states "generation complete," and below that it states "sent ok." (R. at 51.) The form then states "FU/TEJ PODIATRIC/FAX," and "generation complete." (R. at 51.) However, it does not state "sent ok"; nor does it show what communication purportedly was sent to Dr. Joshi. (R. at 51.) It is thus not clear from this form whether a follow-up was actually sent. Furthermore, as above, the government does not set forth how to interpret this form. And, as with Dr. Patel, although the Disability Determination Explanation states that evidence was requested of Dr. Joshi, this evidence is insufficient because it does not specify what efforts the Commissioner made or whether there was any follow-up. (R. at 92.) Again, the Court cannot assure itself that the Record was properly developed, and the case must be remanded.
There are also no notes from Physiocare Physical Therapy, which treated Ms. Calderon at least once in April 2013. (R. at 194.) The evidence regarding the Commissioner's efforts to obtain these documents suffers from the same deficiencies as that for Dr. Joshi. While the Development Action Form and Disability Determination Explanation indicate some form of communication may have been sent to Physiocare (R. at 92, 194), they do not show whether sufficient or even any effort was made by the Commissioner to obtain the notes, and it is impossible for the Court to determine whether the Commissioner fulfilled her duty to develop the Record. Therefore, the Commissioner has not shown that she made sufficient efforts to obtain notes from Physiocare.
Because the Commissioner has not demonstrated good faith efforts to obtain medical records from Dr. Joshi, Dr. Patel, Physiocare Physical Therapy, MHC, and Dr. Bernhardt, I recommend that the case be remanded to the Commissioner to fully develop the Record in that respect.
Remand also is required because there is no evidence that the ALJ attempted to obtain medical source statements from Ms. Calderon's treating physicians, including those at Mt. Sinai or other doctors at MHC besides Dr. Bernhardt. Moreover, the Commissioner did not arrange for a consultative exam. "It is an ALJ's responsibility to `develop [the claimant's] complete medical history, including arranging for a consultative examination if necessary, and mak[e] every reasonable effort to help [the claimant] get medical reports from [her] own medical sources.'" Hooper v. Colvin, 199 F.Supp.3d 796, 812 (S.D.N.Y. 2016) (alterations in original) (quoting 20 C.F.R. § 404.1545(a)(3)). "A medical source statement is an evaluation from a treating physician or consultative examiner of `what an individual can still do despite a severe impairment, in particular about an individual's physical or mental abilities to perform work-related activities on a sustained basis.'" Id. (quoting SSR 96-5p, 1996 WL 374183 (July 2, 1996)).
"In light of the special evidentiary weight given to the opinion of the treating physician . . . the ALJ must make every reasonable effort to obtain not merely the medical records of the treating physician but also a report that sets forth the opinion of the treating physician as to the existence, the nature, and the severity of the claimed disability." Id. (alteration in original) (internal quotation marks omitted) (quoting Molina v. Barnhart, No. 04 Civ. 3201, 2005 WL 2035959, at *6 (S.D.N.Y. Aug. 17, 2005)). "While the Regulations state that `the lack of the medical source statement will not make [a medical] report incomplete,' the Second Circuit requires the ALJ `to seek additional information from [the treating physician] sua sponte.'" Molina, 2005 WL 2035959, at *6 (citation omitted) (alterations in original) (first quoting 20 C.F.R. § 416.913(b)(6), then quoting Clark, 143 F.3d at 118). "[F]or an ALJ to make a disability determination without seeking any treating physician opinion, there must be `no obvious gaps in the administrative record,' and the ALJ must `[possess] a complete medical history.'" Hooper, 199 F. Supp. 3d at 814 (alterations in original) (quoting Rosa, 168 F.3d at 83 n.5).
Dr. Bernhardt's statement regarding Ms. Calderon's mental impairments could have sufficed as such an opinion, but the ALJ rejected it in its entirety, and there is no evidence that the ALJ attempted to obtain a report from another physician who personally treated Ms. Calderon. And, even if Dr. Bernhardt's mental impairment opinion had been accepted, there is still no opinion that addresses Ms. Calderon's physical symptoms or physical abilities in detail. Furthermore, there is no evidence that the Commissioner sought to obtain medical source statements from Ms. Calderon's other treating physicians, such as those at Mt. Sinai. No consultative exam was sought to assist the ALJ in analyzing the individual or cumulative effects of Ms. Calderon's complex impairments. The failure to request more medical statements or consultative statements leaves a significant hole in the administrative record.
Instead of looking to a medical professional to assist in interpreting Ms. Calderon's symptoms and abilities, the ALJ substituted his own lay opinion for that of a physician's. For example, the ALJ decided that because physical examinations showed no limitation in strength or range of motion and because her x-rays were generally unremarkable, Ms. Calderon's lupus did not cause her great limitation. (R. at 30.) Nothing in the Record supports this inference, and it was legal error requiring remand for the ALJ to make that inference without the aid of an expert opinion. See Hooper, 199 F. Supp. 3d at 816 ("[A]lthough the ALJ extensively referred to [the claimant's] progress notes from [the medical sources] in explaining his RFC determination, the ALJ's own interpretation of the treatment notes does not supersede the need for a medical source to weigh in on the claimant's functional limitations."); Ramos v. Colvin, No. 13-CV-6503, 2015 WL 925965, at *10 (W.D.N.Y. March 4, 2015) (remanding where "[t]he ALJ thoroughly reviewed and discussed the treatment records, but did not have a medical source statement or a consultative examination report to assist him in translating the treatment notes into an assessment of [the claimant's] mental capacity for work related activities," and instead "used his own lay opinion to determine" the claimant's mental RFC).
Dr. Bernhardt also submitted a statement finding Ms. Calderon totally disabled because of her mental condition and because of her lupus. (R. at 364-72.) The ALJ, however, gave Dr. Bernhardt's opinion both no weight and little weight. (R. at 31, 38.)
When an ALJ declines to give controlling weight to the medical opinion of a treating physician, he must consider various "factors" in deciding how much weight to give the opinion. See 20 C.F.R. §§ 404.1527(c), 416.927(c). These factors include: "(i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Commissioner's attention that tend to support or contradict the opinion." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2)). These same factors also must be considered with respect to what weight to give non-treating doctors, "with the consideration of whether the source examined the claimant or not replacing the consideration of the treatment relationship between the source and the claimant." Butts v. Commissioner of Social Security, No. 16 CV 874, 2018 WL 387893, at *6 (N.D.N.Y. Jan. 11, 2018) (citing 20 C.F.R. § 404.1527(c)(1)-(6)). The ALJ is not required to "expressly discuss" every factor "as long as it is clear from the record as a whole that the ALJ properly considered each of the factors included in [the regulations]." Petrie v. Astrue, 412 F. App'x 401, 406-08 (2d Cir. 2011).
The ALJ's analysis here was deficient in several respects. First, the ALJ inconsistently referred to Dr. Bernhardt as a treating physician and non-treating physician. The ALJ initially referred to Dr. Bernhardt as "the claimant's treating psychiatrist," but later stated, in complete contradiction, that Dr. Bernhardt "has not treated the claimant."
Even if the ALJ had properly categorized Dr. Bernhardt's opinion, the ALJ's analysis was flawed because he failed to adequately specify the weight assigned to Dr. Bernhardt's opinion. When the ALJ first assessed the opinion, the ALJ assigned the entire opinion "no weight." (R. at 28). But when the ALJ discussed Dr. Bernhardt's statement later in the decision, the ALJ stated that the entire statement was given little weight for the very same reasons expounded in the first section. (R. at 31.) Because of this inconsistency, the Court cannot assure itself that the ALJ properly considered every factor. The ALJ's failure to consistently apply the weight given to the opinion was erroneous. See 20 C.F.R. § 416.927(c)(2) ("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion."); Lora v. Colvin, No. 16 Civ. 3916, 2017 WL 4339479, at *8 (S.D.N.Y. Sept. 12, 2017) ("If the treating physician's opinion is not given controlling weight, the Commissioner must nevertheless determine what weight to give it. . . . The ALJ is required to explain the weight ultimately given to the opinion of a treating physician.").
Whether or not Dr. Bernhardt was a treating physician, the ALJ failed to properly analyze Dr. Bernhardt's opinion that Ms. Calderon could not work due to her mental condition. See Colon v. Astrue, No. 10 CV 3779, 2011 WL 3511060, at *11 (E.D.N.Y. Aug. 10, 2011) ("[T]he ALJ failed to give good reasons for according the non-treating physicians substantial weight."); Gillies v. Astrue, No. 07-CV-517, 2009 WL 1161500, at *6 (W.D.N.Y. April 29, 2009) (remanding where ALJ rejected opinion of nurse practitioner solely because "nurse practitioners are not necessarily considered to be acceptable sources of medical evidence"). In particular, it is not clear from the decision that the ALJ properly considered whether Dr. Bernhardt's opinion was consistent with the Record as a whole. See C.F.R. § 404.1527(c)(4) ("Generally, the more consistent a medical opinion is with the record as a whole, the more weight we will give to that medical opinion."). The ALJ stated only that Ms. Calderon "had been in group therapy but was only seen individually starting in September 2014 with borderline personality disorder and unspecified mood disorder." (R. at 28.) The Record, however, is replete with many physicians' diagnoses of depression, mood disorders, and personality disorders, including from before September 2014. (R. at 291, 297, 300, 305, 310, 320.) The ALJ did not mention in his analysis the earlier diagnoses nor any of Ms. Calderon's depressive disorder diagnoses, and it is not evident that he considered them. (R. at 28.) Finally, Dr. Bernhardt noted that not only could Ms. Calderon not work because of her mental condition, but her lupus would also prevent her from work. (R. at 368, 372.) The ALJ did not assess that finding. The ALJ therefore erred in his application of 20 C.F.R. § 404.1527 (evaluating opinion evidence), and remand is required.
In making his step three determination, the ALJ improperly disregarded the Record. The ALJ found that Ms. Calderon's symptoms did not meet the severity of the Listing for lupus. The Listings note, "Systemic lupus erythematosus (SLE) is a chronic inflammatory disease that can affect any organ or body system. It is frequently, but not always, accompanied by constitutional symptoms or signs (severe fatigue, fever, malaise, involuntary weight loss)." 20 C.F.R. § 404, subpt. P, app. 1, 14.02. To meet the Listing's criteria for lupus and be considered automatically disabled, the claimant must show:
20 C.F.R. § 404, subpt. P, app. 1, 14.02. Regarding the definitions of major organs and body systems, the regulation states:
20 C.F.R. § 404, subpt. P, app. 1, 14.00(D)(1)(a).
In concluding that Ms. Calderon's lupus did not qualify under the Listing, the ALJ failed to analyze the Record, stating only the following:
(R. at 29.) This finding is conclusory and contrary to the Record. The Record abounds with findings by Ms. Calderon's treating physicians that her lupus was causing difficulties in multiple body systems and organs. For instance, Dr. Arora stated that Ms. Calderon had a malar rash and photosensitivity, and therefore she met some of the criteria for the diagnosis of lupus. (R. at 247.) He also stated that Ms. Calderon had peripheral neuropathy and occasional headaches, which were possibly linked to lupus. (R. at 247.) Dr. Arora further stated that Ms. Calderon's "constellation of symptoms" indicated lupus, and those symptoms included arthralgia, alopecia, sicca, photosensitivity, myalgia, and malar rash. (R. at 236, 244.) Dr. Kataria noted that Ms. Calderon had a depressive disorder due to her lupus and that claimant reported photosensitivity and fatigue. (R. at 300, 309.) Dr. Salazar noted that she would have "tiredness" when she had lupus flare-ups. (R. at 316.) The ALJ'S opinion simply does not address these medical findings in his step three analysis.
The ALJ's failure to take into account those findings was erroneous and contrary to the Record. See Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) ("[T]he crucial factors in [the ALJ's] determination must be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence."); Vasquez v. Barnhart, No. 02 CV 6751, 2004 WL 725322, at *8 (E.D.N.Y. March 2, 2004) ("In light of the ALJ's failure to so much as mention the obviously highly relevant criteria relating to [lupus], the ALJ's finding that plaintiff does not meet them cannot be said to be supported by substantial evidence."). I therefore recommend remanding to the Commissioner for proper consideration of the Record.
The ALJ erred by failing to consider Ms. Calderon's heel spurs throughout his decision. "The Commissioner is required to `consider the combined effect of all of [the claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity' to establish eligibility for Social Security benefits." Burgin v. Astrue, 348 F. App'x 646, 647-48 (2d Cir. 2009) (alteration in original) (quoting 20 C.F.R. § 404.1523). "And, if the Commissioner `do[es] find a medically severe combination of impairments, the combined impact of the impairments will be considered throughout the disability determination process.'" Id. (alteration in original) (quoting 20 C.F.R. § 404.1523); see also 20 C.F.R. § 416.945(a)(2). "[Second Circuit] case law is plain that `the combined effect of a claimant's impairments must be considered in determining disability; the [Commissioner] must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe.'" Id. (second alteration in original) (quoting Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995)).
The ALJ did not state that Ms. Calderon's spurs were an impairment or functional limitation in step two or in his RFC determination. (R. at 26.) He mentions them only once, and only when analyzing Ms. Calderon's arms, knees, and hands problems, stating:
(R. at 27.) But between 2013 and 2016 several different physicians referenced this malady in their treatment notes, which indicates just the opposite — that Ms. Calderon had heel spurs with associated pain for at least twelve months. (R. at 231, 268-70, 301, 306.) Ms. Calderon also testified that the pain caused by her heel spurs "feels like you have glass on your heels" and that she had to receive several injections each year to ease the pain in her feet. (R. at 78.) Therefore, there is no indication from the Record that her heel spurs had resolved. The Commissioner should consider Ms. Calderon's heel spurs as an impairment on remand. See Burgin, 348 F. App'x at 647-48 (remanding where ALJ failed to consider depression in plaintiff's combined list of impairments when determining RFC).
In addition to the above problems, the ALJ's RFC determination was fraught with legal errors and contradicted by the Record. Residual functional capacity is
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (alteration in original) (quoting SSR 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims ("SSR 96-8p"), 1996 WL 374184, at *2 (S.S.A. July 2, 1996)). In making a residual functional capacity determination, the ALJ must consider a claimant's physical abilities, mental abilities, symptomology, including pain and other limitations, which could interfere with work activities on a regular and continuing basis. 20 C.F.R. § 404.1545(a).
The ALJ failed to consider Ms. Calderon's mental impairments in his RFC analysis. Even if "substantial evidence supports the ALJ's finding that [a claimant's] mental impairment was nonsevere, it would still be necessary to remand . . . for further consideration [where] the ALJ failed to account [for the claimant's] mental limitations when determining her RFC." Rousey v. Commissioner of Social Security, ___ F. Supp. 3d ___, ___, 2018 WL 377364, at *13 (S.D.N.Y. Jan. 11, 2018) (quoting Parker-Grose v. Astrue, 462 F. App'x 16, 18 (2d Cir. 2012) (summary order)). The ALJ's opinion only formulatically states that he would consider mental impairments in his RFC section (R. at 29), but there is nothing in the ALJ's opinion indicating that he carried out that duty. He did not explain how Ms. Calderon's mental illnesses informed his RFC determination, and that failure alone requires remand. See id.
The ALJ also failed to consider Ms. Calderon's impairments in combination. "[A]s [the Second Circuit] has long recognized, the combined effect of a claimant's impairments must be considered in determining disability; the SSA must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe." Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995); see also Gold v. Secretary of Health, 463 F.2d 38, 42 (2d Cir. 1972) ("In assessing disability, all complaints [of a claimant] must be considered together in determining her work capacity." (alteration in original) (quoting Burns v. Celebrezze, 234 F.Supp. 1019, 1020 (W.D.N.C. 1964))). Thus, in assessing a claimant's RFC, the ALJ must consider the effects of her impairments separately and in combination, regardless of severity. Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013) ("[I]n assessing the claimant's RFC, the ALJ must consider the combined effect of all of the claimant's medically determinable impairments, whether severe or not severe."); Bush v. Colvin, No. 13 CV 994, 2015 WL 224764, at *8 (N.D.N.Y. Jan. 15, 2015) (in RFC analysis, ALJ must consider the combined effects of plaintiff's impairments regardless of severity); SSR 96-8p, at *1 ("The RFC assessment considers only functional limitations and restrictions that result from an individual's medically determinable impairment or combination of impairments. . . .").
The ALJ considered some of Ms. Calderon's impairments separately, but he did not consider them in combination. For example, the ALJ stated:
(R. at 31.) He said nothing regarding whether these impairments or other impairments were considered in combination, and there is no other indication from the opinion that he did so during the RFC analysis. On remand, the Commissioner should consider all of Ms. Calderon's impairments in combination.
The ALJ's RFC determination was flawed in other respects. First, he discounted Ms. Calderon's lupus symptoms because "[p]hysical examinations performed throughout 2013 were generally within normal limitats [sic] showing no limitation of range of motion of her extremities or spine." (R. at 30.) Additionally, he concluded that because her x-rays were fairly unremarkable, Ms. Calderon's lupus must not be severe. (R. at 30.) But lupus can affect many parts of the body. See 20 C.F.R. § 404, subpt. P, app. 1, 14.02. Without a medical opinion (as discussed above), the ALJ simply is not qualified to assess whether those findings demonstrate anything about Ms. Calderon's lupus.
The ALJ also pointed out that at most medical exams, Ms. Calderon had a normal range of motion, normal breathing, normal neurological strength, normal coordination and gait, and no physical limitations. (R. at 30.) Nothing in the Record explained what these findings mean or shows whether or not Ms. Calderon can work an eight-hour day. The ALJ's lay conclusion that she can is thus not supported by substantial evidence. Moreover, Ms. Calderon's limitations stem primarily from fatigue and pain, not from strength, range, or coordination. The ALJ appears to have applied his own lay understanding of "normal strength" and "normal motion." Instead, the ALJ should have at least ordered a consultative exam to more adequately assess these terms and Ms. Calderon's ability to work.
Finally, the ALJ stated that records from MHC demonstrated that Ms. Calderon's daily activities were extensive and that she would thus be able to perform light work. (R. at 30.) But those records stated only that she "does all the cleaning etc." (R. at 294.) And other MHC records from 2014 stated that Ms. Calderon's activity had decreased, she was becoming more fatigued, and her illnesses were "taking over [her] life." (R. at 305, 309.) Meanwhile, the ALJ does not appear to have accounted for these findings. The ALJ also relied on a note from Dr. George finding that Ms. Calderon felt taken advantage of by her family.
For the above reasons, the RFC determination was flawed, and remand is required. See Rousey, ___ F. Supp. 3d at ___, 2018 WL 377364, at *14 (failure to consider mental impairment at RFC stage was legal error); Mead v. Colvin, No. 15 CV 1331, 2017 WL 1134393, at *1-2 (D. Conn. March 27, 2017) (remanding where ALJ's analysis of lupus did not properly address nature of lupus symptoms, such as flare-ups and fatigue).
"[T]he subjective element of [plaintiff's] pain is an important factor to be considered in determining disability." Perez v. Barnhart, 234 F.Supp.2d 336, 340 (S.D.N.Y. 2002) (quoting Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984)). "[W]hen there exists conflicting evidence as to the extent of a claimant's pain, an ALJ must evaluate the claimant's credibility." Calzada v. Asture, 753 F.Supp.2d 250, 279 (S.D.N.Y. 2010) (citing Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999)). In assessing credibility, the ALJ must consider several factors, including:
Id. at 280; see 20 C.F.R. §§ 404.1529(c)(3)(i)-(vi), 416.929(c)(3)(i)(vi)). "The issue is not whether the clinical and objective findings are consistent with an inability to perform all substantial activity, but whether plaintiff's statements about the intensity, persistence, or functionally limiting effects of her pain are consistent with the objective medical and other evidence." Calzada, 753 F. Supp. 2d at 280.
"If the ALJ rejects plaintiff's testimony after considering the objective medical evidence and any other factors deemed relevant, he must explain that decision `with sufficient specificity to enable the [reviewing] Court to decide whether there are legitimate reasons for the ALJ's disbelief' and whether his decision is supported by substantial evidence." Id. (alteration in original) (quoting Fox v. Astrue, No. 05 CV 1599, 2008 WL 828078, at *12 (N.D.N.Y. Mar. 26, 2008)). "Beyond showing that a medical impairment could reasonably be expected to cause the symptoms of which the applicant complains . . . an applicant has no burden to further `substantiate' or `support' her subjective statements of fatigue." Rivera v. Berryhill, No. 16 CV 5021, 2018 WL 388942, at *7 (E.D.N.Y. Jan. 12, 2018) (citing Meadors v. Astrue, 370 F. App'x 179, 184 (2d Cir. 2010)). The weight to be assigned such testimony is within the ALJ's discretion. Calzada, 753 F. Supp. 2d at 279 (citing Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)).
The ALJ found Ms. Calderon's statements "not totally credible" primarily because (1) her statements of daily activities to MHC were inconsistent with her reported symptoms to the Commissioner, and (2) Dr. George's comment that Ms. Calderon felt that she was "taken advantage of" by her family. (R. at 31.) As already noted, Ms. Calderon's only statement regarding activities of daily living was to her psychologist where she stated that she did "all the cleaning etc." (R. at 294.) The Record does not provide any description of what types of tasks and activities "all cleaning" encompassed or how long they took. Moreover, Ms. Calderon's ability to clean her home is not necessarily inconsistent with the limitations expressed at the hearing that she had trouble walking, bending down, getting up, reaching, and lifting and that she became frequently fatigued. (R. at 70-73, 78, 80-83.) And, Ms. Calderon's statement to her psychologist that she felt "taken advantage of" is not material to the ALJ's credibility determination.
The ALJ also suggested that Ms. Calderon's credibility is undermined by the various medical notes finding that she has a "normal range of motion," "normal strength," and "normal" gait and coordination. (See, e.g., R. at 346.) The meaning of the term "normal" standing alone is, at best, ambiguous. But even putting that aside, the Record is devoid of evidence of the implications of those medical findings either separately or when considered in the context of her other afflictions and impairments. Most importantly, Ms. Calderon's restrictions appear to come from pain and fatigue, and not from a lack of strength. The ALJ also noted that her x-rays were relatively normal. But there is no evidence in the Record suggesting that the x-rays demonstrate anything significant about the intensity of Ms. Calderon's stated symptoms, except perhaps confirmation that she has heel spurs.
Indeed, the medical evidence here is consistent with Ms. Calderon's alleged symptoms. She was diagnosed with lupus, spurs, asthma, hypothyroidism, obesity, depression, personality disorder, and joint pain. Multiple medical sources noted her fatigue, pain, poor sleep, decreased energy, headaches, memory loss, "crying," decreased motivation, and photosensitivity. One doctor noted that it was "taking over [her] life." (R. at 305.)
For these reasons, the ALJ erred in his credibility analysis, and the case should be remanded for further proceedings to more fully consider Ms. Calderon's credibility. See Sweda v. Berryhill, No. 16 CV 6236, 2018 WL 259369, at *9 (E.D.N.Y. Jan. 2, 2018) (finding ALJ committed legal error when he discounted plaintiff's complaints of fatigue, where the complaints were consistent with plaintiff's lupus diagnosis).
For the reasons stated above, I recommend remanding this action for further proceedings. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable P. Kevin Castel, Room 1020, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
SSR 96-8p, at *5.
