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 supplemental security income ("SSI") and disability insurance benefits ("DIB"). The parties have consented to my exercising plenary jurisdiction in this matter pursuant to 28 U.S.C. § 636(c) (D.I. 7). 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 Items ("D.I.") 20, 23). For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is denied, plaintiff's motion is granted and the case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion.
Plaintiff filed an application for SSI and DIB on January 24, 2008 alleging disability due to "Lower back pain, Arm pain" (Tr. 305-12, 343). Plaintiff alleged a disability onset date of March 2007, which she later amended to December 2007 (Tr. 20, 46, 339). Her application was initially denied on April 30, 2008 (Tr. 146-52). Plaintiff requested an administrative hearing, which was held on September 23, 2009, before Administrative Law Judge ("ALJ") Robert Gonzalez (Tr. 88-124, 152). Plaintiff testified through a Spanish interpreter and was represented by a non-attorney representative from the Legal Aid Society of Rockland County (Tr. 90).
On November 13, 2009, ALJ Gonzalez denied the claim (Tr. 127-40). The ALJ found that plaintiff could not perform her past relevant light work, but could work at the sedentary exertional level
Plaintiff appeared for two additional hearings before ALJ Gonzalez on June 7, 2012 and September 18, 2012, accompanied by her non-attorney representative and a Spanish interpreter (Tr. 58-87, 39-57). Vocational expert Donald Slive testified at the second of these hearings (Tr. 49-57). The ALJ issued a second decision adverse to plaintiff on February 11, 2013 (Tr. 20-32). The ALJ's determination became the Commissioner's final decision on June 11, 2014, when the Appeals Council denied plaintiff's request for review and extended the time to file a civil action (Tr. 1-11).
Plaintiff was born in 1966 in the Dominican Republic (Tr. 31, 45). She went to elementary school in the Dominican Republic but has not taken any classes in the United States (Tr. 45, 80, 100, 350). Plaintiff's primary language is Spanish, and she speaks and reads "a little" English (Tr. 61, 78-79, 100).
Plaintiff worked for 17 years as a housekeeper at Allendale Nursing Home (Tr. 43, 99, 318, 327, 343-344). Her duties included cleaning and vacuuming, cleaning toilets, lifting garbage and moving mattresses. She was on her feet 7-8 hours per day (Tr. 43, 94, 99, 344-345). Plaintiff stopped working in 2007 due to lower back pain that prevented her from doing her job (Tr. 103, 309, 343). Plaintiff has three children over the age of eighteen (Tr. 101). Plaintiff is divorced, lives alone on the second floor of a walk-up apartment building and testified that her daughters help her at home (Tr. 73, 101-02). Plaintiff explained that "Social Services helps [her]" by giving her food stamps, money for rent and paying some bills and that she also receives money from her adult son (Tr. 73).
Plaintiff alleged that she was disabled as of December 2007, and the ALJ determined that her date last insured was December 31, 2012 (Tr. 22, 323, 337). Therefore, the review of plaintiff's medical history will focus on this time period.
On April 8, 2008, plaintiff underwent a consultative orthopedic examination with Dr. Rose Chan (Tr. 507-09). Dr. Chan observed that plaintiff "appeared to be in no acute distress," had a normal gait and station and could fully squat (Tr. 508). Plaintiff brought what Dr. Chan described as a "self-prescribed" and "self-bought" cane to the examination; Dr. Chan opined that the cane was not medically necessary (Tr. 507-08). Plaintiff was able to walk on her toes if she steadied herself with one hand on the examination table, and she "declined to walk on heels" (Tr. 508). Plaintiff "[n]eeded no help changing for the exam or getting on and off [the] exam table," and was "[a]ble to rise from [a] chair without difficulty" (Tr. 508). Dr. Chan also found that plaintiff had full flexion in her cervical spine, full range of motion in her shoulders, elbows, forearms, wrists and fingers, somewhat limited flexion in her thoracic and lumbar spines and full range of motion in her lower extremities (Tr. 508-09). Dr. Chan found that plaintiff's straight leg raising test was negative bilaterally (Tr. 508). Dr. Chan noted that an x-ray indicated that plaintiff suffered from discogenic disease at L5-S1
During the relevant time period, plaintiff was primarily treated by pain management specialist Dr. Deepak Vasishtha of Musculoskeletal Pain Management, P.C. for complaints of back, leg and knee pain (Tr. 97). The record contains Dr. Vasishtha's evaluations and treatment notes as well as diagnostic testing results ordered by him and others in the 2007 to 2012 time period.
On August 3, 2007 Dr. Vasishtha completed a form entitled "Disability Letter," in which he stated that plaintiff had a diagnosis of lumbar disc herniations,
On January 17, 2008, Dr. Vasishtha completed another "Disability Letter" stating that he was treating plaintiff for "Lumbar Disc Herniation, + B/L Lumbar L4, L5 Radiculopathy + Gait Disturbance" (Tr. 670). He stated that plaintiff was totally disabled, unable to work and that her prognosis was "guarded" (Tr. 670).
On January 16, 2008, Dr. Vasishtha referred plaintiff to physical therapy and ordered an MRI of plaintiff's lumbar spine (Tr. 501). The results of this MRI, conducted on January 29, 2008, indicated that plaintiff had disc desiccation and disc bulging at L5-S1, a right intraforaminal
Plaintiff's primary care physician Dr. Amir Shahid also ordered electro-diagnostic testing in June 9, 2008; that testing showed evidence of chronic S1 radiculopathy (Tr. 671-74). Dr. David Colarusso, who performed the electro-diagnostic testing, recommended additional testing to determine the cause of the impingement and "conservative therapy to [the] affected region" (Tr. 672).
Dr. Vasishtha ordered nerve conduction testing in August 2008 to evaluate plaintiff's continuing complaints of lower back pain and pain and tingling radiating to her legs (Tr. 539-544). The testing revealed electro-diagnostic evidence of left lumbosacral radiculopathy involving the S1 and S2 nerve roots (Tr. 541).
In January 2009, Dr. Vasishtha completed a form for the New York State Office of Temporary and Disability Assistance assessing plaintiff's employability (Tr. 675-76). He indicated that plaintiff had low back pain radiating down both legs and pain in both knees that caused difficulty walking and completing activities of daily living (Tr. 675). Dr. Vasishtha indicated that plaintiff's physical examination showed that she had a limited range of motion of the lumbosacral spine with tenderness at L4-S1 and that her straight leg raising test was positive bilaterally (Tr. 675).
A June 2009 motor nerve study ordered by Dr. Sarwar Sharfuddin showed that plaintiff had chronic left S1 radiculopathy (Tr. 683-86).
In a document entitled "Physician's Report for Claim of Disability Due to Physical Impairment," dated August 25, 2009, Dr. Vasishtha indicated that he had seen plaintiff twice per week for the past year and diagnosed plaintiff with the following "disabling" conditions: chronic moderate low back pain, moderate pain in both knees and moderate lumbar radiculopathy (Tr. 677). He indicated that she was taking narcotic pain medication for these ailments (Tr. 678). He also noted that plaintiff could sit for a total of five hours, stand and/or walk for a total of two hours, occasionally lift up to 20 pounds, occasionally carry up to 20 pounds, could occasionally bend, squat, crawl and climb and frequently reach (Tr. 678-79).
Dr. Vasishtha continued to treat plaintiff in 2011 and 2012.
In treatment notes from February 2011, Dr. Vasishtha diagnosed plaintiff with multilevel disc herniations and radiculopathy (Tr. 726). Plaintiff reported that she had attended physical therapy but was experiencing increased pain at a level of 8 out of 10 in her lower back (Tr. 726). Dr. Vasishtha found that plaintiff's range of motion was limited overall in the lumbar spine; a manual muscle test showed that plaintiff's strength was a 3+ out of 5 in her back extensor and a 3 out of 5 in her quadriceps (Tr. 726). Dr. Vasishtha's examination showed tenderness on palpation
At a March 9, 2011 visit with Dr. Vasishtha, plaintiff complained of moderate-to-severe low back pain radiating down her right leg and right knee pain with swelling, instability and frequently experiencing a sensation that her right knee was about to give way (Tr. 719). Bending, twisting, pulling and pushing movements exacerbated her back pain, and she had difficulty climbing stairs and walking on uneven ground due to knee pain (Tr. 719). Testing revealed that plaintiff's range of motion was limited in the lumbar spine, and a Hoffman test was positive
(Tr. 720). Dr. Vasishtha recommended that plaintiff continue physical therapy and a home exercise program, undergo injection therapy, use the back and knee braces that she received in 2008 and that she follow up within four to six weeks (Tr. 721). Plaintiff was prescribed Endocet, a pain medication containing acetaminophen and oxycodone, Ibuprofen and Savella for joint pains and body aches (Tr. 721).
Plaintiff continued to report similar symptoms to Dr. Vasishtha at an April 4, 2011 visit but noted that her pain had diminished (Tr. 716-18). Plaintiff experienced difficulty walking on uneven ground or going down stairs and felt as if her knee would give way (Tr. 716). Plaintiff reported that bending, pushing, pulling and lifting exacerbated her back pain and that these movements caused the pain to radiate into her right leg (Tr. 716). Dr. Vasishtha observed that plaintiff's range of motion in the lumbar spine and right knee was limited due to pain (Tr. 717). A straight leg raising test was positive on the right side, and muscle spasm was present from Ll to Sl (Tr. 717). Dr. Vasishtha's assessment was lumbar degenerative disc disease with disc herniation resulting in lumbosacral radiculopathy on the right L4-L5 and L5-S1 levels and osteoarthritis of the knee joint with a possible meniscal tear (Tr. 717). Dr. Vasishtha recommended that plaintiff continue physical therapy and medications, go for further testing and that if plaintiff did not have success with "conservative management" that she go for nerve root block injections (Tr. 718).
At a May 5, 2011 follow-up visit with Dr. Vasishtha, plaintiff reported that the ibuprofen made her dizzy, that her low back pain had improved, that her knee pain was "acutely exacerbated" and that she was experiencing a clicking sensation in her right knee and a feeling that the knee was about to give way (Tr. 712). The doctor's testing revealed that plaintiff's range of motion of the lumbar spine was limited due to pain (Tr. 712). Testing revealed tenderness at L4-L5 and L5-Sl and plaintiff's straight leg raising test was positive (Tr. 714). Plaintiff continued to have difficulty with heel and toe walking (Tr. 714). Plaintiff's right knee showed swelling and limited range of motion due to pain (Tr. 714). Dr. Vasishtha again diagnosed lumbar degenerative disc disease with disc herniation along with lumbosacral radiculopathy, as well as osteoarthritis of the right knee with a possible meniscal tear (Tr. 714). The doctor recommended that plaintiff continue physical therapy, home exercise, bracing and pain medication and that she get injections and an MRI (Tr. 713-14).
A May 13, 2011 MRI of plaintiff's right knee showed patellofemoral degenerative changes and chondromalacia patellae;
At a June 13, 2011 visit with Dr. Vasishtha, plaintiff complained of moderate-to-severe low back pain radiating down the right lower extremity, which was exacerbated with bending, twisting, pulling and pushing (Tr. 710). Plaintiff also complained of right knee pain and that she could not tolerate the Endocet opioid (Tr. 710). Dr. Vasishta found that plaintiff's range of motion of the lumbar spine and right knee was limited due to pain with all movements, that she ambulated with a stiff and slightly stooped, wide-based gait and that heel and toe walking caused her to have back pain (Tr. 711). A straight leg raising test was positive on plaintiff's right side and muscle spasm was present from Ll to S1 (Tr. 711). Dr. Vasishtha diagnosed plaintiff with chondromalacia patellae of the knee joint with effusion, lumbar degenerative disc disease with disc herniation with lateral recess stenosis, lumbosacral radiculopathy at L5, right worse than left, and chronic pain syndrome (Tr. 711). The doctor recommended that plaintiff continue with therapy and medications and indicated that he would consider what kind of injections were necessary (Tr. 710-11). To assist in this latter assessment, the doctor sent plaintiff for an electro-diagnostic study of the lower extremity (Tr. 711).
At Dr. Vasishtha's recommendation, plaintiff had two nerve block injections on the right side at L4-L5, one on July 5 and one on July 19, 2011 (Tr. 740, 747-48).
Plaintiff also went to the emergency room at Nyack Hospital on July 15, 2011, complaining of back pain (Tr. 762-69). The doctors in the emergency room noted that plaintiff had a limited range of motion in her back and that a straight leg raising test was positive (Tr. 766-67). She was diagnosed with "lower back pain acute" (Tr. 767).
At an August 16, 2011 visit, plaintiff's primary care doctor Dr. Childebert St. Louis at Hudson River HealthCare listed back pain and depression in plaintiff's medical history (Tr. 850-51). The doctor noted that plaintiff was taking Effexor, an antidepressant, Trazadone for anxiety, Endocet and Naproxen, an anti-inflammatory medication (Tr. 850-51). At this visit, plaintiff exhibited mild decreased range of motion of her spine and point tenderness (Tr. 851). The doctor's diagnosis included lumbar radiculopathy and major depression not otherwise specified (Tr. 8851). Tramadol was added for back pain and all other medications were continued (Tr. 851).
Plaintiff went to the emergency room at Nyack Hospital again on April 20, 2012, complaining of severe back pain (Tr. 772). She had back muscle spasms and was treated with pain medication and muscle relaxers and released that day (Tr. 776-78).
At a May 1, 2012 visit, plaintiff sought follow-up treatment with Dr. St. Louis after her recent emergency room visit due to back pain (Tr. 772-81). Plaintiff was prescribed Flexeril, a muscle relaxant, to treat her lumbar radiculopathy (Tr. 832-34).
At a May 24, 2012 visit to Dr. Vasishtha, plaintiff complained of low back pain with pain radiating down both legs as well as right knee pain with swelling and crackling sensation (Tr. 734). The doctor stated that plaintiff had shown "good improvement" with physical therapy (Tr. 734). Dr. Vasishtha's examination of her neurological system revealed hypoesthesia
Plaintiff complained of back pain again at an August 23, 2012 visit with Dr. St. Louis (Tr. 825).
On December 3, 2012, plaintiff again complained of back pain to Dr. St. Louis (Tr. 814-17). She had decreased range of motion and tenderness to palpation in her back (Tr. 814-17). Dr. St. Louis directed plaintiff to follow up with her pain management treatment and referred her to a social worker for evaluation and treatment of her major depression (Tr. 814-17).
On April 8, 2008, plaintiff saw Dr. Theodore Williams for a consultative psychiatric examination (Tr. 502-06). At the examination, plaintiff reported that she had ongoing problems falling asleep but denied ever being depressed, anxious, or experiencing panic attacks (Tr. 503). Plaintiff's appearance was normal, her speech was "[c]lear, concise, well organized, and rationally based," and her thought processes were coherent (Tr. 503). Dr. Williams noted that plaintiff "[s]eemed mildly depressed" (Tr. 504), but he ruled out "depressive disorder" and concluded that "[t]he results of the examination do not appear to be consistent with any psychiatric or cognitive problems that would significantly interfere with [plaintiff's] ability to function on a daily basis" (Tr. 505). Dr. Williams noted that plaintiff required asistance in dressing, bathing and grooming and that her daughter helps her with these activities as well as cooking, cleaning, laundry and shopping (Tr. 504). Dr. Williams recommended that plaintiff continue to obtain treatment for her physical problems and gave her a prognosis of "fair to good," with the "hope[] that with continued intervention and support, she will find symptom relief and maximize her abilities" (Tr. 505).
In March 2009, plaintiff began seeing a psychiatrist, Dr. Gerard Salomon on a monthly basis (Tr. 109-10, 118).
On August 25, 2009, in a form titled "Functional Capacity Questionnaire for Psychiatric Disorders," Dr. Saloman diagnosed plaintiff with anxiety disorder and identified "mild" restrictions in her daily living, social functioning, ability to understand instructions and respond appropriately to co-workers and "moderate" restrictions in her ability to concentrate, ability to satisfy work production and attendance standards, ability to respond to work pressures, ability to perform complex tasks and ability to perform simple tasks on a sustained basis (Tr. 688-91). Plaintiff's prognosis was fair (Tr. 688). Dr. Salomon did not check any of the boxes indicating whether plaintiff has or was expected to experience episodes of deterioration or decompensation (Tr. 691-92).
Dr. Salomon filled out the same form again on May 19, 2011 (Tr. 698-709). Dr. Salomon again diagnosed plaintiff with anxiety disorder, noted that she had "difficulty breathing shocking feeling," had an anxious mood and an inability to concentrate and pay attention (Tr. 698-99). In contrast to his 2009 diagnosis, Dr. Salomon noted that plaintiff now had "moderate" restrictions on her ability to perform the activities of daily living and "marked" limitations on her concentration, persistence or pace and her ability to perform complex tasks on a sustained basis (Tr. 700-02). Dr. Salomon noted that plaintiff "continually experienced" episodes of deterioration or decompensation and opined that plaintiff was completely unable to function independently outside the home (Tr. 702). Dr. Salomon opined that plaintiff could not maintain a job due to her inability to concentrate (Tr. 701).
Plaintiff started to see social worker Rafaelina Acosta for psychotherapy treatment in April 2011 (Tr. 703). In a functional capacity questionnaire dated May 19, 2011, Ms. Acosta diagnosed plaintiff with major depression and noted that she had delusions or hallucinations (Tr. 703). Ms. Acosta stated that plaintiff's response to medications and psychotherapy was poor and her prognosis was "moderate" (Tr. 704). Ms. Acosta identified moderate restrictions on plaintiff's daily living, social functioning and concentration (Tr. 705-06). She generally identified marked restrictions on plaintiff's ability to function in a work setting, although she identified only moderate limitations on plaintiff's ability to understand, remember and carry out instructions, as well as on her ability to respond appropriately to supervision (Tr. 707-09).
Plaintiff appeared and testified at the September 23, 2009, June 7, 2012 and September 18, 2012 hearings with a Spanish interpreter and a non-attorney representative (Tr. 39-42, 58-60, 88-90).
Plaintiff testified to her physical problems and limitations, in particular those associated with her chronic lower back pain and pain and numbness in her legs (Tr. 80-83, 95-99, 105-09, 113). She described her inability to do household chores, the difficulties she had dressing and caring for her personal needs and her limited ability to drive (Tr. 82, 104, 112-14). Plaintiff told the ALJ that she received a great deal of assistance with cooking, cleaning and transportation (Tr. 73-74, 82, 99, 104, 111-12). She also stated that she was unable to care for her grandchildren because of her inability to lift or carry them (Tr. 74-75, 102, 114). She was also unable to take public transportation (Tr. 83). She testified about her struggles with depression and anxiety (Tr. 68-69, 109-110, 114, 119-120). Plaintiff testified that the fact that she could not work after having her job for 17 years increased her depression (Tr. 119). She expressed the desire to return to her work as a housekeeper, but stated that "I don't think I can" (Tr. 122).
Vocational expert Donald Slive testified at the September 18, 2012 hearing. The ALJ posed the following hypothetical to Mr. Slive and asked what kind of work such a hypothetical individual could perform in the national economy:
(Tr. 50). The expert testified that such a person could not perform plaintiff's past work as a housekeeper but that she could perform the following jobs in the Dictionary of Occupational Titles ("DOT") that he defined as "light": sub-assembler, DOT code 729.684-054, with 14,120 jobs nationally, screwdriver operator, DOT code 699.685-026 with 17,540 jobs nationally and assembler, small products II, DOT code 739.687-030 with 13,450 jobs nationally (Tr. 50-51). The expert also testified that if the hypothetical individual could not stand for more than two hours in a workday, sit for more than four hours continually and could not lift more than ten pounds, then he or she could not perform these "light" jobs (Tr. 52-53). The expert also testified that if the hypothetical individual was unable to concentrate on work for four hours out of an eight hour workday there would be no jobs in the national economy that he or she could perform (Tr. 54-55).
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 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"
A claimant is entitled to DIB and SSI if she can establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months."
The impairment must be demonstrated by "medically acceptable clinical and laboratory diagnostic techniques," 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D), and it must be "of such severity" that the claimant cannot perform her previous work and "cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Whether such work is actually available in the area where the claimant resides is immaterial. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In making the disability determination, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience."
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), 416.920(a)(4)(i)(v);
An ALJ's unexplained conclusion at step three of the analysis may be upheld where other portions of the decision and other "clearly credible evidence" demonstrate that the conclusion is supported by substantial evidence.
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), 416.920(a)(4)(iv);
RFC is defined in the applicable regulations as "the most [the claimant] can still do despite [his] limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). To determine RFC, the ALJ "identif[ies] the individual's functional limitations or restrictions and assess[es] his or 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 and 416.945."
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."
In considering the evidence in the record, the ALJ must give 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), 416.927(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), 416.927(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.
In determining a claimant's RFC, the ALJ is required to consider the claimant's reports of pain and other limitations, 20 C.F.R. § 416.929, but is not required to accept the claimant's subjective complaints without question.
The regulations provide a two-step process for evaluating a claimant's subjective complaints.
The ALJ applied the five-step analysis described above and determined that plaintiff was not disabled (Tr. 22-32).
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since her alleged onset date in December 2007 (Tr. 22).
At step two, the ALJ found that plaintiff suffered from the following severe impairments: anxiety disorder, degenerative disc disease of the lumbar spine and internal derangement and chondromalacia patella of the right knee (Tr. 22).
At step three, the ALJ concluded that plaintiff's alleged impairments, either singly or in combination, were not medically equal to the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (Tr. 23-24). Specifically, he found that plaintiff did not meet the listings for musculoskeletal disorders in Listings 1.02 or 1.04 or for mental disorders in Listing 12.06 (Tr. 23-24).
The ALJ then determined that plaintiff retained the RFC to perform "a wide range of exertionally light work"
The ALJ also found that plaintiff received "conservative psychiatric treatment from Dr. Gerard [Salomon] of North Rockland Bahavioral Center since at least April 2009 due primarily to complaints of anxiety with driving" (Tr. 26). The ALJ noted that Dr. Salomon diagnosed plaintiff with anxiety disorder and that she remained in stable condition with prescribed treatment (Tr. 26). The ALJ recognized that the social worker Rafaelina Acosta found that plaintiff had more marked impairments in her mental state, but noted that Ms. Acosta was not an acceptable medical source (Tr. 22, 26-27).
In concluding that plaintiff had the RFC to do light work, the ALJ gave great and significant weight, respectively, to the 2008 opinions of the consultative examiners Dr. Chan and Dr. Williams (Tr. 29). The ALJ concluded that the opinions from plaintiff's treating sources were not entitled to controlling weight because they were inconsistent with their own objective findings and with those of the consultative examiners (Tr. 29-30). He gave Dr. Vasishtha's opinion "little weight" (Tr. 29). The ALJ also found plaintiff's testimony to be "shifty and contradictory," and, therefore, not entirely credible (Tr. 28-29). Based on the record, the ALJ concluded that the "objective medical evidence of record . . . documents a well-managed psychiatric disorder and a musculoskeletal disorder that has responded well to treatment and has not caused any significant neurological abnormality" (Tr. 30).
At step four, the ALJ concluded that plaintiff was unable to perform the duties of her past work as a housekeeper (Tr. 30-31).
At step five, relying on the testimony of the vocational expert, the ALJ found that jobs existed in significant numbers in the national economy that plaintiff could perform, given her RFC, age and education (Tr. 31-32). He found that plaintiff was a "younger individual age 18-49, [as of] the alleged disability onset date" and was illiterate in English (Tr. 31). The ALJ noted that the vocational expert testified that given plaintiff's age, education, work experience and RFC, plaintiff could perform the "requirements of representative occupations such as the position of sub-assembler, with 14,120 jobs nationally; power screwdriver operator with 17,520 jobs nationally; or as assembler of small products III, with 13,450 jobs nationally" (Tr. 31). Based on these vocational factors, plaintiff's RFC and the vocational expert's testimony, the ALJ concluded that plaintiff was not disabled (Tr. 30-32).
Plaintiff primarily argues that the ALJ's decision should be overturned on three grounds: (1) the ALJ's assessment that plaintiff did not meet the requirements of Listing 1.04A was erroneous and not supported by substantial evidence, (2) the ALJ's RFC assessment was erroneous because it was based on a misapplication of the treating physician rule and (3) the ALJ erred in his evaluation of plaintiff's credibility (
Plaintiff first argues that the ALJ erred when he concluded that plaintiff did not meet a listing. Plaintiff claims that the medical evidence shows that plaintiff's back impairments meet, or at least equal, the requirements of Listing 1.04A (Pl. Mem. at 15-18; Plaintiff's Brief in Reply to Defendant's Memorandum of Law, dated Feb. 24, 2016, (D.I. 25) ("Pl. Reply") at 1-2). The Commissioner responded to plaintiff's argument in a footnote, stating that the ALJ's decision was "based on his analysis of the substantial evidence in the record" (Comm'r Mem. at 12 n.4). The Commissioner's brief cites only to the ALJ's decision and does not identify the "substantial evidence in the record" to which the Commissioner refers.
Listing 1.04A, entitled "Disorders of the spine," provides:
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04A. Of the requirements in Listing 1.04A, the ALJ only took issue with plaintiff's claim that she suffered from motor loss (Tr. 23).
The ALJ's decision contains no substantial explanation for his conclusion that plaintiff did not meet the "motor loss" aspect Listing 1.04A, and the explanation he does provide is based on a selective view of the record (
First, by focusing on muscle atrophy as a prerequisite to a showing of motor loss, the ALJ failed to fully consider the other bases for motor loss, including plaintiff's difficulty with walking. Listing 1.04A indicates that motor loss can be either "atrophy with associated muscle weakness
Second, although the ALJ concluded that plaintiff maintained an "intact tandem gait" and full or mildly limited muscle strength in the upper and lower extremities (Tr. 25), apparently referencing a June 2011 treatment note (Tr. 711), other treatment notes evidence that plaintiff did not maintain a fully normal gait and muscle strength. In June 2011, plaintiff was observed to be walking with a "stiff and slightly stooped gait, slightly wide-based" (Tr. 711) and in May 2012, plaintiff's examination showed evidence of antalgic posturing (a posture assumed to lessen pain) in the lumbar spine along with paravertebral muscle guarding (a protective response) (Tr. 735). Moreover, in 2011, plaintiff's treating physician reported that plaintiff had difficulty walking long distances and engaging in other activities of daily living (Tr. 729 (in February 24, 2011, noting that plaintiff reported that she was having problems in activities of daily living like "toileting, transferring, walking long distances")). Finally, although plaintiff's manual muscle strength tests often showed only mild limitations in her knee and ankles, a May 2011 MRI showed evidence of degeneration in her knee and a possible meniscal tear, which corroborates plaintiff's consistent testimony that she had difficulty walking on stairs and had pain with bending (Tr. 714, 717, 720, 724, 727-28). Thus, the ALJ's conclusions regarding plaintiff's muscle strength and gait are belied by contrary evidence in the record, which the ALJ did not address.
Finally, although the ALJ focused on the limited evidence of reflex loss, there is evidence that plaintiff's motor loss was accompanied by sensory loss, which is sufficient as an alternative to a showing of reflex loss. There is evidence in the record that plaintiff experienced muscle spasms, numbness, tingling and pain radiating into her legs (Tr. 671-74, 683-86, 710, 716-19, 722-25, 734-35, 776;
Although the evidence of plaintiff's motor loss may not be overwhelming, it is non-trivial evidence that plaintiff met the elements of Listing 1.04A. Because the ALJ failed to fully address the medical evidence that potentially meets the listing requirements, I cannot conclude that there is "sufficient uncontradicted evidence in the record to provide substantial evidence for the conclusion that [p]laintiff failed to meet step three."
Although I conclude that the matter should be remanded for further proceedings, in an effort to minimize the chance of a subsequent appeal, I make note of the following legal principles to assist the ALJ in those proceedings.
Plaintiff also argues that the ALJ erred by affording more weight to one-time consultative examiners because their opinions were inconsistent with the medical record and that the opinions of plaintiff's treating physicians should have been accorded controlling weight (Pl. Mem. at 19-22). The Commissioner contends that the ALJ gave valid reasons for assigning plaintiff's treating physicians' opinions limited weight and that the opinions of the consulting examiners were supported by substantial evidence (Comm'r Mem. at 15-18).
With respect to plaintiff's orthopedic limitations, the ALJ gave "great weight" to the opinion of one-time examining consultant Dr. Chan, stating that
(Tr. 29). The ALJ found that Dr. Vasishtha's disability assessments were not entitled to controlling weight because his opinions regarding plaintiff's limitations were "inconsistent both with [his] own objective findings and with those of the consultative examine[r]" (Tr. 29). The ALJ also found that Dr. Vasishtha's opinion was entitled to little weight because he "[f]ailed to cite any specific objective clinical factors as the basis for his conclusions and instead, has offered only the claimant's subjective complaints" and because Dr. Vasishtha only prescribed "conservative" treatment for plaintiff (Tr. 29-30).
The ALJ's decision is problematic for several reasons. First, the ALJ's conclusion that Dr. Vasishtha's assessments from January 2009 and August 2009 should be discounted because they are inconsistent with the objective findings of Dr. Chan from April 2008 makes little sense because Dr. Vasishtha's opinions are based on clinical findings that significantly post-date Dr. Chan's examination. The record contains at least five diagnostic studies between June 2008 and May 2011 that Dr. Chan's assessment could not have taken into account (Tr. 539-44, 683-86, 725, 722-74, 727-28). Opinions from a one-time consultative physician are not ordinarily entitled to significant weight, in particular where that physician does not have the benefit of the complete medical record.
Second, the ALJ's conclusory statement that Dr. Vasishtha's conclusions were not supported because the record did not show objective neurological abnormalities is not accurate. In June 2008, electro-diagnostic testing showed evidence of chronic S1 radiculopathy (Tr. 671-74). A nerve conduction test in August 2008 showed that plaintiff had left lumbosacral radiculopathy, involving the S1 and S2 nerve roots (Tr. 539-544). A motor nerve study in June 2009 also showed that plaintiff had chronic left S1 radiculopathy (Tr. 683-86). Further, the MRI of plaintiff's lumbar spine in 2011 "was positive for bulging with lateral predominance at L5-S1 with concomitant component of right intraforaminal disc herniation with bilateral inferior neural foraminal stenosis, right greater than the left impinging upon the inferior aspect of the exiting right LS nerve root" (Tr. 710). As the ALJ recognized, the diagnostic findings post-dating Dr. Chan's examination confirm "the existence of a herniated disc at L5-S1 causing moderate spinal canal stenosis and likely nerve root impingement. . . ." (Tr. 23). Further, other objective tests that measure possible nerve damage, including straight leg tests were consistently positive in 2011 (Tr. 711, 714, 717, 719, 735). The test results and doctor's treatment notes note chronic back pain, muscle spasms and pain, numbness and/or tingling in plaintiff's legs (Tr. 539-544, 671-74, 683-86, 710, 726, 734, 716-19, 735, 776). Indeed, in Dr. Vasishtha's August 25, 2009 disability assessment he cited to "lumbar pain moderate chronic 1 yr," "[chronic] Bilateral knee pain moderate," and "[chronic] lumbar radiculopathy moderate 1 yr" as a basis for his conclusion that plaintiff was disabled (Tr. 677). Therefore, the ALJ's conclusion that Dr. Vasishtha's opinion was not entitled to controlling weight because it was based solely on plaintiff's subjective complaints is factually incorrect.
Third, although the ALJ concluded that plaintiff experienced improvement with "conservative treatment" of physical therapy, injections and medication (Tr. 25-26), the record demonstrates that the ALJ's conclusion is based on a selective view of the record. Dr. Vasishtha's treatment notes demonstrate that while plaintiff's pain sometimes improved, sometimes her pain was worse and she consistently reported pain despite treatment. For example, in June 2008, plaintiff presented with a worsening of her chronic lower back pain radiating to her lower extremities, accompanied by numbness, tingling and weakness of her bilateral lower extremities (Tr. 671). Later, in June 2011, Dr. Vasishtha noted that plaintiff presented with "moderate-tosevere pain," limited range of motion in her lumbar spine associated with pain in all rotations and that she walked with a stiff and slightly stooped gait, slightly wide-based (Tr. 710-11). Further, although the ALJ stated that plaintiff's conservative treatment involved only epidural steroid injections (Tr. 25), the record demonstrates that Dr. Vasishtha ultimately recommended, and plaintiff had, two nerve block injections (Tr. 740, 747-748). Further, despite undergoing two nerve block injections in July 2011, plaintiff went to the emergency room in July 2011 and April 2012 complaining of back pain (Tr. 762-69, 772-81). At the first visit, the doctors noted plaintiff's limited range of motion of the lumbar spine and a positive straight leg raising test (Tr. 766-767). At the second visit, less than a year later, the doctors noted that plaintiff had back muscle spasms and was treated with pain medication and muscle relaxers (Tr. 772-781). The ALJ's conclusion that plaintiff received only conservative treatment thus fails to take into account the medical record from Dr. Vasishtha and others showing that over the course of several years plaintiff continuously tested positive for and reported pain and other symptoms associated with degenerative disc disease.
The ALJ's decision to discount Dr. Vasishtha's opinion was directly relevant to the ALJ's RFC determination. Dr. Vasishtha opined that plaintiff was limited to sitting for five hours, standing/walking for two hours out of an eight hour workday and lifting/carrying up to twenty pounds occasionally (Tr. 678-79). The vocational expert testified that if the ALJ's hypothetical was changed such that the claimant could not stand for more than two hours in a workday, sit for more than four hours continually and lift more than ten pounds, then she could not perform the "light" jobs identified (Tr. 52-53). Dr. Vasishtha's assessment is inconsistent with a full range of light work, which requires an individual to be able to stand and walk for approximately 6 hours in an 8-hour workday. SSR 96-9p, 1996 WL 374185 at *6 (July 2, 1996). Thus, the ALJ's RFC determination, which discounted plaintiff's treating physician opinion was not supported by substantial evidence.
Plaintiff also argues that the ALJ erred by giving "significant weight" to the opinion of consulting psychological examiner Dr. Williams. Dr. Williams opined that plaintiff had no "significant objective limitations, but may have difficulty maintaining a regular schedule and performing complex tasks" (Tr. 29). In contrast, plaintiff's treating psychologist Dr. Salomon checked boxes in a psychiatric assessment form indicating that, among other things, plaintiff had "marked limitations in attention and concentration, and the ability to satisfy normal production and attendance standards" (Pl. Mem. at 23,
Accordingly, the reasons cited by the ALJ for rejecting Dr. Vasishtha's opinion were flawed and on remand the ALJ should assess Dr. Vasishtha's opinion according to the factors set forth in 20 C.F.R. § 404.1527(c).
Plaintiff next argues the ALJ erred in assessing plaintiff's credibility regarding the intensity, persistence and limiting effects of her pain because the ALJ failed to ask plaintiff about contradictions in the record regarding her use of assistive devices that he relied on to discredit her testimony (Pl. Mem. at 25-26). The Commissioner responds that the ALJ properly weighed the medical evidence in assessing plaintiff's credibility (Comm'r Mem. at 14-15).
The ALJ erred in his credibility finding at the first step of the analysis for the same reasons discussed above with respect to the ALJ's application of the treating physician rule. At the first step, notwithstanding the objective medical evidence of record that established diagnoses of degenerative disc disease and impairments of the right knee, the ALJ found that the "objective medical evidence of record simply does not corroborate" plaintiff's "frequent assertions that she is in so much pain that she cannot dress or bathe herself without assistance, nor can she perform household activities such as cooking, cleaning or shopping" (Tr. 28). As discussed above, the ALJ improperly weighed the opinion of plaintiff's treating physician Dr. Vasishtha regarding the severity of plaintiff's impairments and impact on her ability to carry out daily activities and instead gave "great weight" to the opinion of Dr. Chan, who examined plaintiff without the benefit of the majority of the diagnostic evidence in the record. Thus, for instance, the ALJ agreed with Dr. Chan's assessment that, although plaintiff arrived at her examination in 2004 with a cane, it was "not medically necessary" in part because none of plaintiff's physicians "prescribed any type of a hand-held assistive device for use ambulating" (Tr. 23). However, this assessment, while technically accurate, necessarily ignored Dr. Vasishtha's treatment notes indicating that he subsequently prescribed plaintiff a knee brace and back brace in 2008 and that he continued to recommend that she use these items through at least June 2011 (Tr. 675-76, 711, 721). Plaintiff also reported to SSA in a March 2008 disability report that she used a cane, walker and "Brace/Splint" (Tr. 358). Dr. Vasishtha may have prescribed these braces to assist plaintiff in ambulating and/or carrying out her activities of daily living, particularly those that require carrying heavy objects or bending or leaning. Indeed, this would be consistent with Dr. Vasishtha's finding that plaintiff walked with an abnormal gait at times (Tr. 669, 711). The ALJ did not ask plaintiff about her use of the prescribed braces or her cane at the hearing. To the extent that plaintiff's claim that she used a medically necessary assistive device or received assistance from others was unsubstantiated "by virtue of lacunae in the record, it was incumbent upon the ALJ to see to it that these gaps were filled by supplemental evidence."
Accordingly, because the ALJ's credibility assessment was flawed, on remand, the ALJ should reconsider his assessment in light of the objective medical record and the standards set forth above.
For all the foregoing reasons, plaintiff's motion for judgment on the pleadings in granted (Docket Item 20) and the Commissioner's cross-motion is denied (Docket Item 23). The case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion.
SO ORDERED
20 C.F.R. §§ 404.1567(a), 416.967(a).
20 C.F.R. §§ 404.1567(b), 416.967(b).
