JUDITH C. McCARTHY, Magistrate Judge.
To the Honorable Cathy Seibel, United States District Judge:
Plaintiff Sean Stewart ("Plaintiff") commenced this action pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3), challenging the decision of the Commissioner of Social Security ("the Commissioner"), which denied Plaintiff's applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") payments, finding him not disabled. (Docket No. 1). Presently before this Court are: (1) Plaintiff's motion to reverse the Commissioner's decision or, in the alternative, vacate such decision and remand for further consideration by the Commissioner, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure ("Rule 12(c)"), (Docket Nos. 12, 13, 24); and (2) the Commissioner's cross-motion to affirm the Commissioner's decision pursuant to Rule 12(c), (Docket Nos. 22, 23). For the reasons that follow, I respectfully recommend that Plaintiff's motion should be denied and the Commissioner's cross-motion be granted.
Plaintiff was born on January 15, 1968. (R.
On June 6, 2014, pursuant to the remand, Plaintiff appeared for a second hearing before ALJ Edgell.
The administrative record reflects treatment Plaintiff received for his general health, as well as for his shoulder, back, heart, lungs and mental health.
Plaintiff had more than fifteen visits with Claudia Ramirez, a physician's assistant, at Cross Valley Health and Medicine ("Cross Valley"). (R. 486-517, 526-37, 626-723). Plaintiff's first appointment with Ms. Ramirez was on December 14, 2009; he presented for a physical examination and complained of right shoulder pain. (R. 511-17). At an appointment on January 4, 2010, Ms. Ramirez reviewed Plaintiff's history of right shoulder pain. (R. 509). Plaintiff reported that the shoulder pain began when he fell down cement stairs in July 2008. (R. 509). He did not have an x-ray or other medical treatment at the time, but was unable to move his arm for two weeks after his fall. (R. 509). Plaintiff said that he typically woke up in the morning with pain, which he assessed as seven out of ten, and that his pain was "mildly relieved" with extra strength Tylenol. (R. 509). He also reported tingling in both hands since approximately July 2008. (R. 509). On April 12, 2010, Plaintiff saw Ms. Ramirez for a follow-up appointment and again complained of right shoulder pain. (R. 505). She noted that his shoulder pain had improved, but not completely, and that he had complied with recommendations from his orthopedic surgeon, Dr. Govindlal Bhanusali, and from his physical therapist. (R. 505). However, although Dr. Bhanusali recommended surgery of his right shoulder, Plaintiff chose to defer it because his girlfriend was pregnant and due to give birth in two months. (R. 505). On physical examination, Plaintiff had no back or neck pain and had normal posture, gait and motor strength; his joints showed a normal range of motion and were without erythema or effusions. (R. 505-06). He had no anxiety, depression, insomnia or suicide attempts. (R. 506).
On June 29, 2011, Ms. Ramirez performed a physical examination of Plaintiff for Family Counseling of Occupations ("Occupations"), where he was receiving mental health treatment. (R. 489). He complained of right shoulder discomfort but had no other complaints or concerns. (R. 489). He was taking Vicodin, as prescribed by Dr. Bhanusali for chronic back pain; his back pain stemmed from an injury for which he received workers' compensation. (R. 491). On July 22, 2011, Plaintiff reported to Ms. Ramirez that he had been seeing Dr. Syed Nasir, his neurologist, for his history of falls and for numbness in his legs. (R. 486). He had last fallen about two weeks earlier, and explained that numbness in his feet caused him to trip while he was walking up the stairs. (R. 486). Plaintiff had never mentioned falls to Ms. Ramirez before. (R. 486). As in prior and later exams, she noted that Plaintiff had no anxiety, depression, insomnia or suicide attempts. (R. 487, 489; see also, e.g., R. 496, 502, 527, 529). On physical exam, Plaintiff had a normal range of motion in his neck without pain, normal range of motion in his joints without erythema or effusions, normal posture and normal motor strength. (R. 488). These findings are similar to the results of previous and subsequent physical exams, and it was often noted that Plaintiff had no back pain or recent flare-ups. (E.g., R. 491-93, 496, 501-02, 526-27, 529-30). Ms. Ramirez recommended, as she did at other visits, that Plaintiff make lifestyle changes for his elevated cholesterol, including modifying his diet; she also provided smoking cessation counseling. (R. 489; see also, e.g., R. 497, 500). On September 13, 2011, Ms. Ramirez wrote that she had again discussed with Plaintiff "the need for him" to seek an alternative to Vicodin, which he took regularly, and that they had discussed the possibility that he would feel better with "an alternative to the addictive Vicodin." (R. 528). Plaintiff agreed to ask for alternative medication. (R. 528).
Plaintiff's appointments with Ms. Ramirez continued at least through July 9, 2012. (R. 638-51). On July 9, 2012, Plaintiff had no complaints. (R. 638). He reported that he was told his heart was "fine," and that he was supposed to have an angiography for his "leg issue." (R. 638). Plaintiff continued to smoke, approximately one pack every two days. (R. 638). Ms. Ramirez noted that Plaintiff was still seeing Dr. Bhanusali for chronic right shoulder pain, and that Dr. Bhanusali continued to recommend physical therapy and surgery for the muscle tear in his shoulder. (R. 639). She further noted that Plaintiff had no recent flare-ups of back pain, but continued to take Vicodin. (R. 639). Plaintiff had been seeing Dr. Nasir for carpal tunnel syndrome, a pinched nerve and a "lump on the back of [his] neck." (R. 639). On examination, he had a normal range of motion in his neck without pain, no wheezing, normal posture and no anxiety or depression. (R. 639-40). Ms. Ramirez provided Plaintiff with literature regarding high cholesterol. (R. 640).
Plaintiff also had appointments with Dr. Paul Saladino at Cross Valley. (R. 503-05, 626-38). On May 3, 2010, Plaintiff saw Dr. Saladino for a routine follow-up. (R. 503). Plaintiff reported chronic tingling in his hands and his legs, but had no other complaints. (R. 503). On physical examination, he had no pain in his neck or back. (R. 503-04). He had no loss of neurological functioning; however, he did have paresthesia of his left arm, but had not undergone a nerve conduction study ("NCS") because he was told it "involved needles and would be very painful." (R. 504). Dr. Saladino noted that Plaintiff had no anxiety, depression, insomnia or suicide attempts. (R. 504). At follow-up appointments on January 23, April 26, July 26 and October 25, 2013, and on February 19, 2014, Plaintiff repeatedly had no complaints, denied pain in his neck and back, and denied depression or anxiety. (R. 626, 628-35).
Plaintiff was referred to Dr. Bhanusali, his orthopedic surgeon, by Dr. Saladino. (R. 409). On January 11, 2010, Dr. Bhanusali completed an initial examination. (R. 409-10). He reviewed Plaintiff's history and complaints, noting that Plaintiff fell down a flight of stairs onto his right shoulder on July 2, 2008, and that although he had not received any treatment for his shoulder since then, he was still experiencing pain and a limited range of motion. (R. 409, 477). Dr. Bhanusali also noted that Plaintiff was not working due to a lower lumbar spine injury in 2005.
Plaintiff had follow-up visits with Dr. Bhanusali through June 2011. (R. 405-06, 411-12, 472-84). In February and March 2010, he saw Dr. Bhanusali approximately every two weeks. (R. 405-12, 472). On February 1, 2010, physical examination showed Plaintiff's active abduction and active forward flexion were 160 degrees on the right side and 180 degrees on the left side. (R. 411). His internal rotation was at T8 level on the right side and T7 on the left side, while his external rotation was 45 degrees on the right side and 60 degrees on the left side. (R. 411). Neer and Hawkins signs were again positive in the right shoulder and negative in the left shoulder. (R. 411). Dr. Bhanusali prescribed Darvocet-N 100 and discussed the possibility of surgery. (R. 411). Two weeks later, on February 15, 2010, Plaintiff had attended physical therapy six times. (R. 405). His pain remained seven out of ten. (R. 405). Physical examination revealed that active abduction of the right shoulder had increased to 170 degrees and that active forward flexion of the right shoulder had increased to 180 degrees; his left shoulder remained at 180 degrees and other clinical findings remained the same. (R. 405). Dr. Bhanusali prescribed Arthrotec 75 mg and observed that although the MRI report identified mild AC joint dislocation, he did not find any dislocation of the right AC joint. (R. 405). On March 1, 2010, Plaintiff described his pain as five out of ten. (R. 412). Dr. Bhanusali noted mild tenderness in Plaintiff's right shoulder, and that his range of movement was almost full. (R. 412). He further observed that physical therapy was helping. (R. 412). The possibility of surgery was discussed again. (R. 412). Plaintiff assessed his pain as five out of ten on March 29, 2010, and his range of movement was painful, but almost full. (R. 472). The possibility of a Depo-Medrol/Marcaine injection was discussed, and his prescription for Naproxen was replaced with Ultracet. (R. 472).
Plaintiff continued to see Dr. Bhanusali regularly, with appointments on April 28, May 26, July 12, July 26, August 9, September 14, October 12 and November 11, 2010, and on January 10, April 4, June 27 and July 25, 2011. (R. 473-83, 811). On April 28, 2010 Plaintiff assessed his right shoulder pain as six or seven out of ten, and on May 26, 2010, he described it as eight out of ten. (R. 473-74). Over the course of his treatment, Plaintiff continued for some time with physical therapy, but did not want a Depo-Medro/Marcaine injection or arthroscopic surgery. (R. 474-75, 478-81, 483). Dr. Bhanusali indicated on July 12, 2010, that Plaintiff "thinks he cannot do any work." (R. 475). On September 14, 2010, Dr. Bhanusali noted that Plaintiff had seen his neurologist, Dr. Nasir, and was told he had carpal tunnel syndrome in both wrists. (R. 478). At his next appointment, on October 12, 2010, Dr. Bhanusali reported that Plaintiff's grip strength on his right hand was fifty-five pound force, and on his left hand was ninety-five pound force, noting that he was right handed. (R. 479). On April 4, 2011, Plaintiff described his right shoulder pain as six or seven out of ten, and identified pain in his left elbow that had bothered him intermittently over the previous six months, as well as neck pain and lumbosacral spine pain. (R. 482). An x-ray of his left elbow revealed no fracture or dislocation, but a small olecranon spur. (R. 482). Dr. Bhanusali wrote that Plaintiff still did not want to move forward with surgery of his right shoulder. (R. 483). On July 25, 2011, Plaintiff complained of pain in his right shoulder, and Dr. Bhanusali observed tenderness there. (R. 811). His range of motion was painful, but almost full, and Neer and Hawkins signs were positive in the right shoulder but negative in the left shoulder. (R. 811). Plaintiff was advised to continue his home exercise program. (R. 811).
Dr. Bhanusali completed Department of Social Service ("DSS") evaluations of Plaintiff in June, September, October and November, 2010, and in January, April and June, 2011. (R. 454-59, 833-35). Dr. Bhanusali indicated that Plaintiff complained of pain and limited range of motion of his right shoulder. (R. 454). In each assessment, Dr. Bhanusali evaluated Plaintiff's range of physical exertion primarily as "less than sedentary," except for his ability to sit, which he assessed as "sedentary." (R. 455-59, 834-35). Specifically, he checked boxes to indicate that Plaintiff could lift fewer than ten pounds occasionally, could stand and/or walk for fewer than two hours per day and could not push or pull, all of which qualified as "less than sedentary" physical exertion. (R. 455-59). He further noted that Plaintiff could sit for six hours per day, which qualified as "sedentary" physical exertion. (R. 455-59).
On Dr. Bhanusali's referral, Plaintiff began physical therapy for his right shoulder on January 18, 2010. (R. 422-33). His physical therapist, Edward Clearwater, reported that Plaintiff assessed his pain as seven out of ten. (R. 433). He found that Plaintiff had full strength (five out of five) throughout his right upper extremity, except for decreased strength (four out of five) in his shoulder flexion, external rotation and rotator cuff. (R. 433). He further found that Plaintiff's activities of daily living were mildly restricted, noting that he could not lift thirty pounds. (R. 433). His active mobility revealed flexion of 120 degrees, abduction of 110 degrees, external rotation of 60 degrees and internal rotation of 85 degrees. (R. 433). Plaintiff saw Mr. Clearwater again on February 2, 11, 18, 19 and 23, 2010, and, following an initial discharge on February 23, 2010, had additional appointments on January 21 and March 15, 2011. (R. 424, 838-39, 850). On February 18, 2010, Plaintiff reported that his pain was six or seven out of ten. (R. 413). His flexion had increased to 155 degrees, his abduction to 155 degrees, his external rotation to 65 degrees, and his internal rotation remained at 85 degrees. (R. 413). Mr. Clearwater again found that Plaintiff's activities of daily living were minimally restricted. (R. 412). On February 23, 2010, Mr. Clearwater found that Plaintiff's shoulder flexion and external rotation were "four plus" out of five, and that his abduction and internal rotation were five out of five. (R. 424). Plaintiff was initially discharged on February 23, 2010, (R. 850), but had additional appointments in 2011: on January 21, 2011, Plaintiff's pain was eight out of ten and he was given exercises to do at home; on March 15, 2011, Plaintiff's pain had decreased to four or five out of ten, (R. 838-39). Plaintiff was discharged again from physical therapy on March 18, 2011, and Mr. Edgewater indicated that he had reached his goals. (R. 836).
On June 2, 2010, Plaintiff had an appointment with Dr. Nasir for numbness in his upper and lower extremities that had lasted for a "few years." (R. 764). He complained of paresthesia for three years in both hands and feet, and described the severity as moderate. (R. 764). He described a gradual onset, and stated that his condition was aggravated by physical activity. (R. 764). On examination, Plaintiff's musculoskeletal system was normal, with no joint swelling, joint pain, leg cramps, joint stiffness, shooting leg pain, shooting arm pain or back pain. (R. 765). Plaintiff also denied depression. (R. 765). Dr. Nasir assessed Plaintiff with peripheral neuropathy and median nerve entrapment. (R. 765). Another appointment on June 16, 2011, revealed similar findings. (R. 750-51). At that time, Dr. Nasir recommended that Plaintiff continue taking Thiamine, increase his dosage of Lyrica, start taking Lidoderm, stop physical therapy and consider pain management. (R. 751).
Plaintiff also underwent testing at Dr. Nasir's office. On May 13, 2010, an NCS was performed. (R. 538). An undated report signed by Dr. Nasir indicates that Plaintiff had an electromyography ("EMG") of his left upper extremity. (R. 539). Dr. Nasir concluded that the EMG and NCS were normal, specifically finding that the median, ulnar and radial nerves were normal. (R. 539). He noted that there was electrical evidence of possible C6 cervical radiculopathy, and recommended an MRI. (R. 539). An MRI of the lumbar spine on May 11, 2010, revealed that Plaintiff had multilevel diffuse bulging discs comprising the neuralforamina at the disc level, and normal vertebral body alignment, disc spaces and marrow. (R. 800-01). An MRI of his cervical spine taken May 24, 2010 revealed a disc bulge at C6-C7. (R. 749).
On March 28, 2011, Dr. Nasir completed a DSS Physical Assessment for Determination of Employability. (R. 464-65). He indicated that Plaintiff had a history of neck and lumbar back pain, as well as carpal tunnel syndrome. (R. 464). Physical exam findings revealed that Plaintiff had a numb hand and pain in his arms and leg. (R. 464). Dr. Nasir found that Plaintiff's capacity for exertional functions was "less than sedentary" and concluded that, in his opinion, he was unable to work due to lumbar back pain. (R. 465). He expected that Plaintiff's inability to work would last until December 15, 2011. (R. 465).
Plaintiff was referred by Dr. Saladino to Dr. Riaz A. Chaudhry, a pulmonologist. He had eight appointments with Dr. Chaudhry, from November 28, 2011, through September 14, 2012. (R. 963-80). At his first appointment, Plaintiff was seen for shortness of breath with exertion and for chronic coughing and mucus. (R. 965). On physical examination, Plaintiff's chest had a normal shape and expansion, his rhonchi had good air entry bilaterally and his lungs were clear to auscultation and percussion. (R. 965). He had a normal range of motion in all joints, his affect was normal and his mood was appropriate. (R. 965-66). Plaintiff was assessed with exacerbation chronic obstructive pulmonary disease ("COPD") and obstructive sleep apnea. (R. 966). He was prescribed Prednisone and Proventil HFA Aerosol Solution for his exacerbation COPD and was scheduled for sleep studies. (R. 966). He was "urged" to quit smoking. (R. 966). Follow-up appointments revealed similar findings, (R. 967, 973-80), except that in March 2012, he had bilateral wheezes and was diagnosed with acute bronchitis and chronic obstructive asthma, with acute exacerbation, (R. 969, 971). On September 14, 2012, Plaintiff stated that he still had trouble sleeping. (R. 979).
Plaintiff underwent several sleep studies at St. Luke's Cornwall Center for Sleep Medicine ("St. Luke's"). (R. 937-62). On December 15, 2011, he was diagnosed with obstructive sleep apnea and insomnia. (R. 961). A March 14, 2012 test revealed severe obstructive sleep apnea and insomnia. (R. 947). However, the attempted continuous positive airway pressure ("CPAP") titration on March 14, 2012 was unsuccessful, so Plaintiff returned to St. Luke's on July 19, 2012, for a repeat overnight Polysomnogram with CPAP titration. (R. 938). The testing again revealed obstructive sleep apnea and insomnia. (R. 940).
Plaintiff was referred to Hudson Valley Cardiology by Dr. Saladino. (R. 545). He had multiple appointments with Dr. Nirav D. Shah. (R. 545-65). Although the dates on many of the treatment notes from Dr. Shah are barely legible, it appears that he saw Plaintiff from at least January 5, 2010 through at least July 2, 2013. (R. 545, 549, 758). On January 5, 2010, Plaintiff complained of wheezing and fatigue, but denied chest pain, shortness of breath, dizziness, syncope and leg swelling. (R. 545). At subsequent appointments, Plaintiff typically denied chest pain, shortness of breath, palpitations, dizziness, syncope and claudication. (R. 546-65, 758; cf. R. 550, 553, 557, 560). Furthermore, Dr. Shah generally indicated that Plaintiff's heart rhythm was regular, he had no audible gallops, he had adequate peripheral pulses, and no cyanosis, clubbing or edema. (R. 546-65, 758). He tended to conclude that Plaintiff had a "grade 2/VI" non-radiating heart murmur at "LSB." (E.g., R. 562-4, 758; cf. R. 565). On multiple occasions, Dr. Shah wrote that Plaintiff was "doing well." (R. 550-52, 554-55, 557, 562).
Dr. Shah wrote to Dr. Bhanusali on August 25, 2010, and stated that Plaintiff suffered from atypical chest pain, arrhythmia, gastroesophageal reflux disease ("GERD"), hypertension and hyperlipidemia. (R. 760). Dr. Shah wrote that at his last appointment, Plaintiff had no complaints of chest pain, shortness of breath, palpitations or dizziness. (R. 760). He further reported that a nuclear stress test performed on January 20, 2010, revealed "normal myocardial perfusion scan with no scan evidence of ischemia or infarction with an ejection fraction of 58%." (R. 760). Further, an echocardiogram performed on December 23, 2009 showed a "normal left ventricular chamber size and contractility of left ventricle." (R. 760). Dr. Shah concluded that, from a cardiovascular standpoint, Plaintiff fell in the "mild perioperative risk for surgery." (R. 760).
Plaintiff underwent various testing at Hudson Valley Cardiology, starting as early as 2009. (E.g., R. 734). For example, a January 31, 2011 carotid ultrasound indicated normal bilateral carotid arteries. (R. 608). Previous and subsequent carotid ultrasounds on January 15, 2010, February 3, 2012 and March 15, 2013, revealed no hemodynamically significant stenosis. (R. 582, 593, 624). Echocardiogram reports prepared by Dr. Shah on January 31, 2011, February 3, 2012 and March 29, 2013, tended to show the following: (i) normal left ventricular size and contractility; (ii) estimated ejection fracture 50-55%; (iii) mild mitral regurgitation and aortic regurgitation; and (iv) mild/moderate tricuspid regurgitation with mild pulmonary hypertension. (R. 581, 592, 607). Plaintiff underwent lower extremity arterial testing on multiple occasions. (R. 566, 583, 594, 609). While testing performed on January 31, 2011 revealed evidence of mild peripheral arterial disease in the right and left legs, prior and subsequent testing on January 29, 2010, February 3, 2012, February 25, 2013 and March 14, 2014, showed no evidence of significant peripheral arterial disease at rest in his left or right legs. (R. 566, 583, 594, 609, 617). On March 14, 2014, Dr. Shah noted that there had been "a significant drop in the ankle/brachial index in the right leg since the last exam, from 1.19 to 0.89." (R. 566). Plaintiff also had several cardiopulmonary exercise tests and stress tests. (R. 571, 574, 586, 590, 600). On January 20, 2010, July 2, 2012 and February 4, 2014, exercise stress tests were negative for stress-induced ischemia, and found that Plaintiff had adequate to good functional exercise capacity. (R. 571, 590, 622). On September 16, 2011 and August 28, 2012, cardiopulmonary exercise tests indicated that: (i) Plaintiff's functional status was ventilatory class I, indicating a negligible functional limitation; (ii) he had adequate resting pulmonary blood flow; (iii) his cardiopulmonary reserve and oxygen transport to tissues with exercise was severely impaired; (iv) he had impaired aerobic capacity; and (v) he had normal autonomic balance. (R. 586, 600). While on September 16, 2011, his pulmonary blood flow pattern during exercise was normal, suggesting a normal cardiac output response to exercise and normal pulmonary perfusion during exercise, approximately one year later, on August 28, 2012, his pulmonary blood flow pattern during exercise was abnormal, which suggested an impaired cardiac output response to exercise and abnormal pulmonary perfusion during exercise. (R. 586, 600). After an August 15, 2013, cardiopulmonary exercise test, Dr. Shah wrote that Plaintiff's functional limitation appeared to be primarily "heart/perfusion" based on a "Ventilation/Perfusion ratio," and that Plaintiff's "[e]levated BMI of 475 may also be a component of functional limitation." (R. 574).
Dr. Shah completed a medical assessment for the New York State Office of Temporary and Disability Assistance on November 20, 2012. (R. 984-88). He listed Plaintiff's diagnoses as hypertension, high cholesterol and atypical chest pain. (R. 984). However, he indicated that he could not provide a medical opinion regarding Plaintiff's ability to do work-related activities. (R. 988).
Plaintiff received treatment at Occupations from therapist Tameika Hinton, L.C.S.W., and Elizabeth Piccolo, of the psychiatry department,
Ms. Hinton performed an initial psychological assessment on July 25, 2011. (R. 1013-21). Plaintiff presented seeking a mental health evaluation, therapy and medication. (R. 1013). At the time of the assessment, he lived with his girlfriend of two years, with whom he had a one-year-old son. (R. 1017). Plaintiff was alert, engaging and cooperative. (R. 1013). His reported symptoms included: (i) depressed mood; (ii) anger issues; (iii) anxious feelings; (iv) sleep disturbances; (v) difficulty concentrating; (vi) difficulty remembering things; (vii) withdrawing from others; (viii) fatigue; (ix) loss of interest in things; (x) racing thoughts; (xi) disturbing thoughts; (xii) hearing things, such as voices calling names; and (xiii) feeling things, such as crawling on his arm. (R. 1013). He also had suicidal thoughts daily, when he was stressed or overwhelmed, and homicidal thoughts, which were triggered when he was angry; his most recent homicidal thought had been one year earlier. (R. 1013, 1016). Ms. Hinton noted that Plaintiff had been teased since he was a child, which triggered his angry feelings. (R. 1013). He also had a history of domestic violence in his past relationship. (R. 1017). Hearing things, feeling things, and his suicidal and homicidal thoughts began when he was younger. (R. 1013). His strengths were that he was likeable and got along well with others, while his needs or barriers were anger, irritability and communication. (R. 1013). Plaintiff denied any past relevant treatment history. (R. 1015).
On mental status examination, Plaintiff's eye contact was average, his activity was within normal range, his mood was euthymic, his affect was full, his speech was clear, his thought process was logical, his perception and thought content were within normal limits and he had no delusions, although he did have auditory hallucinations. (R. 1016). Further, his cognition and judgment were within normal limits, and he was not a danger to himself or others: his suicidal and homicidal thoughts were ideations, not plans. (R. 1016). Ms. Hinton's initial diagnosis was recurrent major depression with psychotic features, and she determined that Plaintiff had a global assessment of functioning ("GAF") score of fifty. (R. 1014). Ms. Hinton suggested he undergo a psychiatric evaluation and attend bi-weekly individual therapy. (R. 1020).
On August 1, 2011, Plaintiff had a psychiatric evaluation. (R. 1022-27). It was noted that he was referred by DSS. (R. 1022). On mental status examination, Plaintiff's speech was coherent, his thought process was logical and goal-directed, his affect was appropriate, his mood was calm, he was alert and fairly responsive, and his attention span and concentration were good. (R. 1025). He reported auditory hallucinations, such as hearing his name called. (R. 1025). He had suicidal thoughts, but denied any suicide attempts. (R. 1026). The evaluation concluded that he presented with symptoms of depression. (R. 1027).
Ms. Hinton completed a DSS Psychiatric Assessment for Determination of Employability on August 2, 2011. (R. 519-20). She indicated that Plaintiff had received therapy and psychiatric care since July 8, 2011, and that he started taking Remeron on August 1, 2011. (R. 519). She reviewed a list of possible episodes attributable to psychiatric conditions, and checked boxes to indicate that Plaintiff had on occasion lost a job or failed to complete an education or training program, and had frequent (daily) thoughts of suicide. (R. 520). She indicated that Plaintiff had not experienced any of the other episodes attributed to psychiatric conditions. (R. 20). Ms. Hinton found that it was too early to assess Plaintiff's level of functioning, noting that he was not capable of working at that time, but that whether he may be able to return to work should be re-assessed in six months. (R. 520). She further wrote that Plaintiff had a severe impairment which had lasted, or was expected to last, for at least twelve months, and explained that additional time was needed to determine whether Plaintiff's mental health interfered with his daily functioning. (R. 520).
After Ms. Hinton's initial assessment of Plaintiff, her treatment notes span from August 25, 2011 through February 21, 2014. (R. 1047-1104; see also R. 777-81, 788). On August 25, 2011, she indicated that Plaintiff had schizoaffective disorder and antisocial personality disorder, but that his primary diagnosis was schizoaffective disorder. (R. 1047). She determined that his GAF was sixty-three, and that his highest GAF over the previous year was also sixty-three. (R. 1047). She noted that Plaintiff had four children, and lived with his significant other and one child. (R. 1047). He enjoyed listening to and making music, was likeable and got along with others, and had friends and family members with whom he socialized and interacted. (R. 1047). His mental health history included: (i) depressed mood; (ii) angry feelings; (iii) homicidal and suicidal thoughts when he was angry or stressed; (iv) domestic violence issues; (v) communication issues; (vi) anxious feelings; (vii) hearing and feeling things; and (viii) substance abuse. (R. 1047). His treatment goals were to alleviate depression and cope with his feelings, and Ms. Hinton noted that he would be discharged when he "improve[d] his ability to cope with life stressors that trigger depressed mood [and] angry feelings." (R. 1048-49). She indicated that he would receive talk therapy two times per month, and medication management at least every three months. (R. 1051).
In treatment notes dated May 18, 2012, Plaintiff identified boredom and having "ample time on his hands" as triggering voices in his head, but did not report any threats to harm himself or others. (R. 1062). Ms. Hinton noted that Plaintiff's sleeping had improved after an adjustment to his medication, although he still had vivid and disturbing dreams and anxious feelings. (R. 1062). He also had stress related to his children's behavioral issues. (R. 1062). By June 14, 2013, Plaintiff's treatment plan had been revised and his goal was to stabilize his mood. (R. 1088). At that time, his talk therapy sessions were reduced to once monthly. (R. 1088). On January 23, 2014, Plaintiff's treatment was transferred to medication management only, as there were no identifiable risks or concerns. (R. 1100). It appears that Plaintiff saw Ms. Hinton again on February 21, 2014; she noted that he was a medication management client. (R. 788). She wrote that he "expressed some confusion as it relates to continuing with individual sessions," and that she discussed with him the purpose of being medication management status. (R. 788). Plaintiff agreed to continue on medication management status and indicated that there were no risks or concerns, and that his mood was stable. (R. 788). Treatment notes from Ms. Piccolo dated April 29, 2014, indicate that Plaintiff would be evaluated for medication at least every three months. (R. 1108).
There are additional treatment notes from August 15, 2011 through December 11, 2013, that reflect medical assessments and mental status examinations but appear to be unsigned. (R. 1208-1311). A mental status examination performed on August 15, 2011 indicated that Plaintiff had normal gait and station, normal speech and thought process, good attention span and concentration, fair judgment and insight, and that he was alert and oriented x3. (R. 1310). He complained of delusions and auditory hallucinations, but denied suicidal or homicidal ideations at that time. (R. 1310). He also reported feelings of paranoia. (R. 1311). On August 29, 2011, it was noted that he had sporadic fleeting thoughts. (R. 1305-06). By December 11, 2013, a mental status examination revealed that Plaintiff had a cooperative attitude, normal gait and station, normal speech and thought process, no perceptual disturbances or disturbances in his thought content, good attention span and concentration, and his judgment and remote-memory were intact. (R. 1210). It was further noted that he had a stable mood, no anxiety, denied psychosis and paranoia, and had no sleep disturbances. (R. 1211-12). These findings are largely in keeping with the findings at his preceding six appointments over the previous year. (R. 1215-16, 1220-21, 1225-26, 1230-31, 1235-36, 1240-41). In addition, it was often noted that he was alert and responsive, and had occasional symptoms of paranoia. (R. 1215-16, 1220-21, 1225-26, 1230-31, 1235-36, 1240-41). From September 26, 2011, through April 29, 2014, Ms. Piccolo prescribed Plaintiff Abilify; he was also prescribed Trazodone, Zoloft and Viibryd at various points during that period. (R. 1028-43). The treatment notes dated December 11, 2013 include a plan for Plaintiff to consider reducing his dosage of Abilify. (R. 1211).
On January 31 and June 14, 2013, Ms. Hinton completed additional DSS Psychiatric Assessments for Determination of Employability. (R. 782-85). In both assessments, Ms. Hinton wrote that Plaintiff had a history of hallucinations and suicidal/homicidal thoughts, and that he struggled with communication. (R. 782, 784). He was taking Viibryd and Abilify. (R. 782, 784). Ms. Hinton also indicated on both assessments that Plaintiff had occasional medical hospitalizations or emergency room visits, that his behavior occasionally interfered with his activities of daily living, and that his psychiatric conditions caused him frequent loss of a job or failure to complete an education or training program. (R. 783, 785). She wrote on both assessments that his ability to work should be re-assessed in one year, and that his health issues interfered with his ability to work. (R. 783, 785). On the June 14, 2013 assessment, Ms. Hinton indicated that Plaintiff was very limited in his abilities to understand and remember simple or complex instructions, and maintain attention and concentration. (R. 785). His functioning was not otherwise limited, and he could interact appropriately with others, maintain socially appropriate behavior, maintain basic standards of personal hygiene and grooming, use public transportation and complete low stress, simple tasks. (R. 785).
Plaintiff's friend completed an adult function report for the New York State Office of Temporary and Disability Assistance, Division of Disability Determinations, on July 9, 2009, prior to Plaintiff's application for SSI and DIB.
Plaintiff completed a second adult function report less than one year later, on March 8, 2010. (R. 330-40). He noted that he was born blind in his left eye and deaf in his left ear. (R. 331). Plaintiff reported that he did not have any problems with sleep or personal care and could handle money, but that he did not prepare his own meals because "sometimes it's hard to see what I'm doing," noting that his girlfriend prepared his meals and did all housework and shopping. (R. 331-34). He further indicated that he went outside "once in a while," that going outside impaired his sight and was hard in the sunlight, and that when he did go outside, he could go alone and rode in a car, but did not drive. (R. 333, 335). In terms of hobbies, social activities and activities of daily living, Plaintiff reported that he listened to loud music and talked to his girlfriend every day, but did not go anywhere on a regular basis and instead sat in his apartment or attended medical appointments. (R. 335, 340). Turning to his abilities, he wrote that: (i) he could walk for ten minutes before he had to stop and rest for five to ten minutes; (ii) he could not finish what he started because of his vision; (iii) he did not have any problems getting along with bosses or other people in authority; and (iv) he did not have trouble remembering things. (R. 336-37). Regarding his pain, Plaintiff identified pain in his right shoulder that spread down to his right arm and hand, and indicated that he felt pain every day, throughout the day. (R. 338-39). He took Skelaxin 800 mg and Naproxen 500 mg every day, but the medication did not relieve the pain and upset his stomach; he also attended physical therapy, but said that it made his pain worse. (R. 339-40).
The administrative record contains evaluations by four consulting physicians.
Shehzad Ali, M.D., performed an internal medicine examination of Plaintiff on July 31, 2009.
Upon physical examination, Plaintiff was visibly blind in his left eye and deaf in his left ear. (R. 382). He did not appear to be in acute distress, and his gait was normal. (R. 382). He was able to walk on heels and toes without difficulty, had a full squat and normal stance and used no assistive devices. (R. 382). He did not require help changing for the exam, getting on or off of the exam table, or rising from the chair. (R. 382). His vision was 20/50 in his right eye, 20/200 in his left eye, and 20/50 in both eyes, on a Snellen chart at twenty feet. (R. 382). Plaintiff's chest and lungs were clear to auscultation. (R. 382). His cervical and lumbar spine showed full flexion, extension, lateral flexion bilaterally and full rotary movement bilaterally, and his thoracic spine showed no scoliosis, kyphosis or abnormality. (R. 383). Plaintiff had a full range of motion in his shoulders, elbows, forearms, hips, knees, wrists and ankles bilaterally. (R. 383). He had full strength (five out of five) in his upper and lower extremities, his joints were stable and nontender, and he exhibited no redness, heat swelling or effusion. (R. 383). His hand and finger dexterity was intact, and he had full grip strength bilaterally (five out of five). (R. 383). Finally, an x-ray revealed that he had no acute bony abnormality. (R. 383, 385).
Dr. Ali diagnosed Plaintiff with: (i) left eye congenital blindness; (ii) left ear deafness; (iii) history of back pain; (iv) hypertension; and (v) asthma by history. (R. 383). His prognosis was stable. (R. 383). In a medical source statement, Dr. Ali concluded that Plaintiff should avoid smoke, dust or other known respiratory irritants secondary to his asthma history, and that he had a mild limitation in activities that required fine visual acuity as well as hearing. (R. 383-84).
Plaintiff had a second internal medicine examination with Leena Philip, M.D., on April 19, 2010, approximately nine months after the first consultative examination, and approximately two months after he applied for SSI and DIB. (R. 436-40). He again complained of blindness in his left eye since birth, and noted that five to ten years earlier he had a trauma to that eye. (R. 436). Plaintiff also reported deafness in his left ear since birth. (R. 463). Dr. Philip observed that he nevertheless had "no difficulty hearing and understanding . . . throughout the exam." (R. 436). He reviewed his history of right shoulder pain since 2008, and identified a trip and fall that caused the injury. (R. 436). Plaintiff was seeing Dr. Bhanusali and had physical therapy three times per week, which he claimed was not helping. (R. 437). He assessed his shoulder pain as eight out of ten, and described it as "sharp, constant, worse with movement of the right arm [and] decreasing with relaxation." (R. 437). Dr. Philip indicated that Plaintiff had been diagnosed with poor circulation in his lower extremities about one year prior to the examination. (R. 437). She noted that he saw a cardiologist, Dr. Shah, and had a positive ankle-brachial index test, which resulted in a diagnosis of peripheral vascular disease ("PVD"). (R. 437). Plaintiff claimed that the PVD caused "tingling" in his legs when he walked long distances. (R. 437). A recent stress test was normal. (R. 437). Dr. Philip also noted that Plaintiff was diagnosed with hypertension and increased cholesterol when he was forty years old, and that he was born with a heart murmur, although did not take medication for it. (R. 437). Plaintiff's smoking had decreased to eight cigarettes per day. (R. 437). His girlfriend performed activities of daily living such as cooking, cleaning, laundry, shopping and childcare, but he showered or bathed and dressed himself. (R. 438). He enjoyed watching television, listening to the radio and socializing with friends. (R. 438). Dr. Philip noted that his primary care provider was Ms. Ramirez at Cross Valley Medical. (R. 438).
On physical examination, Plaintiff again did not appear to be in acute distress, had a normal gait, could walk on heels and toes without difficulty, had a full squat and normal stance and used no assistive devices. (R. 438). He also did not require help changing for the exam, getting on or off of the exam table, or rising from the chair. (R. 438). His vision remained 20/50 in his right eye, 20/200 in his left eye, and 20/50 in both eyes, on a Snellen chart at twenty feet. (R. 438). Dr. Philip noted that his left eye pupil and fundus were not visualized, and that his left pupil and iris had a "bluish hue." (R. 438). Plaintiff's chest and lungs continued to be clear to auscultation. (R. 439). Likewise, his cervical and lumbar spine still showed full flexion, extension, lateral flexion bilaterally and full rotary movement bilaterally, and his thoracic spine showed no scoliosis, kyphosis or abnormality. (R. 439). However, he had a decreased range of motion in his shoulders: forward elevation was 140 degrees bilaterally, abduction was also 140 degrees bilaterally, adduction was 20 degrees bilaterally, and internal and external rotation were full bilaterally. (R. 439). He retained a full range of motion in his elbows, forearms, hips, knees, wrists and ankles bilaterally, and had full strength (five out of five) in his upper and lower extremities. (R. 439). His joints were stable and nontender, he exhibited no redness, heat swelling or effusion, his hand and finger dexterity was intact, and he had full grip strength bilaterally (five out of five). (R. 439).
Dr. Philip diagnosed Plaintiff with the following: (i) congenital left eye blindness; (ii) congenital left ear deafness; (iii) right shoulder pain with history of rotator cuff tear; (iv) PVD by history; (v) heart murmur by history, although not appreciated at Dr. Philip's examination; (vi) high blood pressure by history; and (vii) increased cholesterol by history. (R. 440). She found that his prognosis was good. (R. 440). In her medical source statement, she opined that Plaintiff had mild limitations in activities that required fine visual acuity, as well as mild limitations to reaching overhead, due to right shoulder pain, and mild limitations to walking long distances, due to PVD. (R. 440).
Plaintiff had a third internal medical examination on January 29, 2013. (R. 1001-05). He presented with the following complaints: (i) asthma; (ii) hypertension; (iii) hypercholesterolemia; (iv) osteoarthritis of the right shoulder; (v) left eye blindness; (vi) hearing loss of the left ear; and (vii) depression. (R. 1001-02). He reported that his asthma, hypertension, hypercholesterolemia, osteoarthritis of the right shoulder and depression were diagnosed or had been present since 2009, and that his left eye blindness and hearing loss in his left ear were present since birth. (R. 1001). He was taking the following medication: (i) Abilify; (ii) Viibryd; (iii) Lisinopril; (iv) Lovastatin; (v) Lyrica; (vi) Hydrocodone; (vii) Theophylline; (viii) Advair Diskus; and (ix) Ventolin. (R. 1002). At the time, he smoked approximately one half of a pack of cigarettes per day. (R. 1002). Regarding activities of daily living, Plaintiff stated that he could not cook, clean, do laundry, shop or help with childcare because he was "not focused." (R. 1002). He showered and dressed himself two times per week, and liked to watch television and listen to the radio. (R. 1002).
Dr. Andrews-Watson performed a physical examination, and again found that Plaintiff did not appear to be in acute distress, had a normal gait, could walk on heels and toes without difficulty, had a full squat and normal stance and used no assistive devices. (R. 1003). He did not require help changing for the exam, getting on or off of the exam table, or rising from the chair. (R. 1003). His uncorrected vision was 20/100 in his right eye, 20/blind to chart in his left eye, and 20/100 in both eyes, on a Snellen chart at twenty feet. (R. 1002). She noted that Plaintiff's right pupil was reactive to light, but his left was not, and that he had a visible large cataract. (R. 1003). His chest and lungs were clear to auscultation. (R. 1003). His cervical and lumbar spine continued to show full flexion, extension, lateral flexion bilaterally and full rotary movement bilaterally, and his thoracic spine showed no scoliosis, kyphosis or abnormality. (R. 1003). He had a full range of motion in his shoulders, elbows, forearms, hips, knees, wrists and ankles bilaterally. (R. 1003). His strength was four out of five in his right upper extremity, but he had full strength, five out of five, in his upper left extremity and lower extremities. (R. 1004). There was tenderness to palpation of his right AC and glenohumeral joints. (R. 1003). His hand and finger dexterity were intact, and he had full grip strength bilaterally (five out of five). (R. 1004).
Plaintiff was diagnosed with: (i) asthma; (ii) hypertension; (iii) hypercholesterolemia; (iv) osteoarthritis of the right shoulder; (v) left eye blindness; (vi) left ear hearing loss; and (vii) depression. (R. 1004). His prognosis was fair. (R. 1004). In her medical source statement, Dr. Andrews-Watson recommended that Plaintiff should avoid activities requiring fine visual acuity, as well as activities requiring moderate or greater exertion due to his history of asthma. (R. 1004).
Also on January 29, 2013, Leslie Helprin, Ph.D., conducted a psychiatric evaluation of Plaintiff. (R. 1007-11). She reviewed his medical history and noted that he had not been hospitalized or received any prior outpatient treatment. (R. 1007). Plaintiff stated that he started receiving treatment at Occupations in 2009, and that, as of the date of his evaluation, he had monthly appointments with his psychiatrist and saw his therapist every two weeks. (R. 1007). He was taking, inter alia, Abilify and Vybriid. (R. 1007). In terms of his functioning, Plaintiff reported difficulty falling asleep and loss of appetite, despite a weight gain of about thirty-five to forty pounds since 2005. (R. 1007). He expressed feelings of hopelessness and said that he "[got] secluded," and had difficulty concentrating or focusing and "figuring out things." (R. 1007-08). He had "fleeting suicidal thoughts" about one month earlier, but reported no suicidal plan or intent at the time of the appointment, and had no past suicide attempts. (R. 1008). Plaintiff was nervous when he met or was around people, and feared dying. (R. 10008). He indicated to Dr. Helprin that he had been arrested about five times since he was eighteen years old. (R. 1008).
Upon mental status examination, Plaintiff was dressed appropriately and was well groomed, with normal posture, motor behavior and eye contact. (R. 1008). Dr. Helprin noted that he was obese. (R. 1008). His thought processes were coherent and goal-directed, while his affect and mood were anxious. (R. 1008). Dr. Helprin found that his attention and concentration, as well as his recent and remote memory skills, were mildly impaired due to cognitive limitations: he could not count in serial threes, could not repeat five digits backwards, and although he recalled three out of three objects immediately, he could not recall any after a five minute delay. (R. 1009). She estimated that his intellectual skills were "in the borderline range," and that his general fund of information was "somewhat limited." (R. 1009). His insight and judgment were fair. (R. 1009).
Regarding his mode of living, Plaintiff stated that he could dress, bathe and groom himself, but that he did not cook, clean, do laundry or shop for food because he was "not focused." (R. 1009). He claimed that he could manage his own money and knew how to drive, but did not have a license so used public transportation. (R. 1009). Plaintiff further reported that he had one friend with whom he socialized, as well as "good" family relationships, but that he did not "go around a lot of people." (R. 1009). He watched television, listened to music and attended medical appointments. (R. 1009).
Dr. Helprin completed a medical source statement and commented on Plaintiff's vocational skills. (R. 1009). She found that Plaintiff was able to: (i) follow and understand simple directions and instructions; (ii) perform simple tasks independently; (iii) maintain sufficient attention and concentration for simple tasks; (iv) maintain a regular schedule; (v) make appropriate simple decisions; (vi) relate adequately with others, despite some anxiety; and (vii) deal appropriately with stress. (R. 1009-10). However, she found that he was able to perform few complex tasks due to cognitive limitations. (R. 1009). Dr. Helprin found that the results of the examination were consistent with psychiatric problems, but that the problems were not significant enough to interfere with Plaintiff's ability to function on a daily basis. (R. 1010). She recommended that he continue with psychiatric and psychological treatment, and that he would benefit from vocational retraining. (R. 1010). His prognosis was good, in light of his treatment, but based on his cognitive limitations, she did not think he would be able to manage his own funds. (R. 1010).
A state agency consultant, J. Labusohr, completed a physical residual functional capacity ("RFC") assessment on August 10, 2009.
A second physical RFC assessment was completed by L. Farrell on April 22, 2010. (R. 441-46). Plaintiff's diagnoses were listed as a right shoulder tear, blindness in his left eye, deafness in his left ear and PVD. (R. 441). The consultant found that Plaintiff had the following exertional limitations: (i) he could occasionally lift and/or carry up to twenty pounds; (ii) he could frequently lift and/or carry up to ten pounds; (iii) he could sit, stand and/or walk for about six hours in an eight hour workday; and (iv) his ability to push and/or pull was limited in his upper extremities. (R. 442). Turning to postural limitations, the consultant found that Plaintiff could only occasionally climb ramps/stairs or a ladder/rope/scaffold, but could frequently do everything else. (R. 443). In terms of manipulative limitations, he was limited only in his ability to reach in all directions, including overhead. (R. 443). His visual limitations included limited depth perception, accommodation and field of vision. (R. 443). The consultant did not find any communicative or environmental limitations, and concluded that the objective findings did not support the degree of alleged functional limitations. (R. 444-45).
Plaintiff testified by video teleconference at the June 6, 2014 hearing before ALJ Edgell. (R. 31-73). Plaintiff was represented by an attorney, Gary Gogerty.
Regarding his shoulder pain, Plaintiff reported that surgery was recommended, but that he had not yet opted to have the surgery. (R. 37). He said that although he considered the surgery, he did not "have the time to do it," but then clarified that he meant he was "kind of scared." (R. 55-56). He explained that he was no longer seeing Dr. Bhanusali, who encouraged him to have surgery, but that instead he was receiving treatment for pain management from Dr. Nasir. (R. 55-56). He indicated that he had shoulder pain "all the time," and described "shooting pain" when he tried to "lift [his] arms up over [his] head," which "really bother[ed]" him. (R. 52). Without medication, Plaintiff described his pain as "between a seven and an eight" on a scale of one to ten. (R. 46, 52). With medication, he assessed the pain as "about six." (R. 46, 52). He also had pain in his arms and joints, in particular, his right arm, (R. 53), and in his wrists, which he believed was caused by carpal tunnel syndrome, (R. 56). Further, he experienced numbness in his hands and his legs. (R. 56). Plaintiff said that he had trouble picking things up or holding things, and that he dropped things, all the time. (R. 53, 56). Although he testified that the heaviest amount he could carry was "a gallon of milk," he said that it had been "a while" since the last time he tried, noting that his girlfriend prepared meals.
Turning to other physical issues, Plaintiff testified about his vision. (R. 36, 57). He noted that he had been blind in his left eye since birth, and said that this "throws things off a lot." (R. 57). He described having to use his right eye, which required turning his head. (R. 57). His depth perception was also "throw[n] . . . off a lot" as a result of his blindness, and he explained, as an example, that if he was reaching for something, he would often over or under reach for it. (R. 57). He also discussed pain in his lower back, and noted again that he saw Dr. Nasir for pain management. (R. 42). The medication he was taking, Lyrica and Vicodin, "help[ed] a little." (R. 42, 46). He described the level of pain he felt as being on the same scale as his shoulder pain. (R. 52). The pain sometimes traveled to his legs, specifically his thighs, and to his arms. (R. 51). In addition, Plaintiff testified about his sleep apnea; he reported that he had stopped using a CPAP machine, which his pulmonologist confirmed was "all right." (R. 47). He reported sleeping for three to four hours a night and waking up early. (R. 47). Plaintiff further indicated that he had asthma, and that he used a "pump . . . at least five times a day." (R. 49). When his attorney asked why he used it that frequently, he responded that it was likely due to his smoking, and that although he had been advised to quit smoking, it was "very hard." (R. 50). He indicated that walking for one block caused shortness of breath and fatigue. (R. 50). His cardiologist, as well as his primary care doctor, advised him to lose weight because he was "borderline of diabetic." (R. 51).
In terms of his mental health, Plaintiff testified that he "[saw] things" and "hear[d] things," but that his visual and auditory hallucinations had become more moderate. (R. 37, 58). Upon questioning by his attorney, he stated that he thought about taking his own life "once in a while." (R. 58). He had difficulty expressing his feelings. (R. 58). Plaintiff started receiving mental health treatment for the first time in 2011, at Occupations, where he was treated by a psychiatrist whom he referred to as Liz Piccolo. (R. 38, 41, 58). He had also participated in "talk therapy" with his counselor, Ms. Hinton, although at the time of the hearing he was only receiving medication management every three months. (R. 41, 58). Plaintiff was taking Viibryd and Ability, and reported that the medication helped him. (R. 40-41).
In discussing activities of daily living, the ALJ noted that at the time of Plaintiff's first hearing, he was taking care of his son, and asked what Plaintiff did during the day since his son had started nursery school. (R. 42). Plaintiff responded that he spent time with his girlfriend, and that he was unable to do "anything around the house" without help; specifically, he testified that he could not do any housework or childcare, and that he did not have any hobbies or pastimes. (R. 42-43). His girlfriend cleaned and washed dishes, and although he tried to help, he was "not very useful" because the pain was "too much." (R. 55). When the pain was "too much," he typically went to the couch to sit or lie down, which "calm[ed]" the pain "somewhat." (R. 55). He indicated that he could bathe and dress himself, watch television and listen to music. (R. 43, 45). He also accompanied his girlfriend to the grocery store, but usually waited in the car, and did not drive or help carry the groceries. (R. 54). When the ALJ asked why his activity had decreased since the last hearing, Plaintiff reported that his pain had increased. (R. 43). He said that he could stand, walk or sit for fifteen to thirty minutes. (R. 44, 52). Sitting for thirty minutes caused pain in his lower back and shoulders. (R. 45). He had not stopped smoking since the date of his first hearing, but had stopped "drinking beer" since he began his psychiatric medication, (R. 44), and noted that his medication made him drowsy, (R. 48). Plaintiff had "a lot" of trouble remembering things, but could "somewhat" remember directions. (R. 59).
Before hearing testimony from the vocational expert, Linda Stein, the ALJ asked Plaintiff questions about his prior work. (R. 62-63). Plaintiff's most recent work was in 2008, at a temporary agency called Labor Ready. (R. 62). He performed manual construction work there; his work was described as the "clean up guy" and "all around guy." (R. 62). Before that, he worked for Wal-Mart doing floor maintenance. (R. 62-63). Prior to Wal-Mart, he worked at LSI Litron, Inc., performing factory work on an assembly line, "putting together boxes and packing stuff in boxes." (R. 63).
The vocational expert testified after Plaintiff. (R. 63-72). Ms. Stein first classified Plaintiff's past work as laborer, general, Dictionary of Occupational Titles ("DOT") 579.667-010; cleaner, industrial, DOT 381.687-018; assembler II, DOT 723.684-018; and packager, hand, DOT 920.587-018, which she described as a "component" of assembler II. (R. 63-64). The ALJ asked Ms. Stein to consider whether a hypothetical individual of the same age, education and work experience as Plaintiff could perform Plaintiff's past work, given the limitations that the jobs would not require: (i) good depth perception; (ii) very fine hearing on one side; (iii) frequent right overhead reach; and (iv) frequent exposure to respiratory irritants. (R. 65). Ms. Stein testified that this hypothetical individual could perform assembly work and work as a packager, hand. (R. 65-66). The ALJ then asked which of Plaintiff's prior positions the hypothetical individual could perform if he was limited to medium work, or if he could not work at heights or operate machinery, and Ms. Stein's answer remained the same. (R. 66-67). However, if the hypothetical individual had no ability to concentrate or perform "even simple tasks," the expert opined that he would not be competitively employable. (R. 67). Upon questioning by Plaintiff's attorney, Ms. Stein clarified that the job of packager, hand did require occasional depth perception, but that the assembler position listed in the DOT that most closely matched Plaintiff's past work did not require depth perception. (R. 69-72).
ALJ Edgell applied the five-step approach in her November 10, 2014 decision. (R. 10-24). At the first step, ALJ Edgell found that Plaintiff had not engaged in "substantial gainful activity since February 1, 2008 the alleged onset date."
At the third step, ALJ Edgell held that Plaintiff did not have a medically determinable impairment or a combination of impairments that were listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 16). The ALJ specifically considered Listed Impairments 1.02(B) for major dysfunction of a joint, 1.04 for disorders of the spine, 3.02 for chronic respiratory disorders and section 2.00 for special senses and speech. (R. 16-17; see also 20 C.F.R. pt. 404, subpt. P., app. 1). She found that his conditions did not meet or medically equal Listed Impairments 1.02(B) or 1.04, and that there was no FEV1 or FVC in the record that would permit Plaintiff to meet Listed Impairment 3.02. (R. 16-17). The ALJ further determined that there was no Listed Impairment in section 2.00 that applied for a claimant who was blind in only one eye or deaf in only one ear. (R. 17). Finally, ALJ Edgell considered Plaintiff's obesity and, inter alia, whether it may have an adverse impact upon co-existing impairments, pursuant to SSR 02-1p. (R. 17).
The ALJ then determined that Plaintiff had the RFC to perform medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), subject to the following limitations: (i) jobs that do not require good depth perception or fine hearing in both ears; (ii) no more than occasional overhead reaching with the right upper extremity; (iii) no more than occasional exposure to concentrated respiratory irritants; and (iv) never working at heights or operating heavy machinery. (R. 17). In making her determination, ALJ Edgell considered "all symptoms" and the extent to which they could reasonably be accepted as consistent with the objective medical and other evidence, and also considered the opinion evidence. (R. 18). She found that although Plaintiff's medically determinable impairments could reasonably be expected to cause his alleged symptoms, his statements concerning the intensity, persistence and limiting effects of his symptoms were not entirely credible. (R. 18). She further concluded that there was little evidence to support Plaintiff's claims regarding limitations to his daily activities, which was further reason why his allegations were not entirely credible. (R. 21). In particular, regarding his visual impairment, she noted that he had glasses for reading and was able to follow written instructions. (R. 21-22). She also noted that his "right shoulder impairment ha[d] resolved entirely with purely conservative treatment." (R. 22). ALJ Edgell observed that Plaintiff had "admitted" that he stopped working in 2008 in part because the job was temporary, which undermined his claim that he stopped working due to his impairments. (R. 22).
The ALJ discussed Plaintiff's allegation that he was disabled and could not work due to congenital left eye blindness, congenital deafness in the left ear, right shoulder injury, low back pain, carpal tunnel syndrome, high blood pressure, PVD, asthma and depression. (R. 18). In terms of his congenital blindness and deafness on his left side, ALJ Edgell observed that "these conditions did not prevent [him] from working until 2008." (R. 18). Turning to his right shoulder pain, she noted that he "exhibited only mild symptoms, improved rapidly with physical therapy, and recovered almost entirely with time." (R. 18). In evaluating Plaintiff's cervical radiculopathy and PVD, ALJ Edgell noted that by February 2012, and continuing through 2014, lower extremity arterial testing did not show evidence of PVD in either leg. (R. 19). The ALJ found that although Plaintiff alleged he had a history of asthma, the record showed that he "actually suffer[ed] from [COPD], which was caused from smoking one pack of cigarettes per day for [twenty-five] years." (R. 19). She further noted that despite a COPD exacerbation in November 2011, he had not been hospitalized for the condition. (R. 19). Likewise, ALJ Edgell noted that Plaintiff had never been hospitalized for his hypertension, that it had not caused a heart attack, heart disease or stroke, and that, moreover, his primary care providers described it as "under control." (R. 20). Regarding Plaintiff's obesity, the ALJ noted that Plaintiff "did not report any specific complaints or limitations" arising from it, that the record did not reflect that it had been treated through surgery or medication, and that his doctor made only "conservative recommendations of diet changes and physical activity." (R. 20). Finally, despite Plaintiff's allegations of psychiatric symptoms, ALJ Edgell found that he did not allege any mental health condition in his original application, that he had no history of psychological treatment until after his application for benefits was initially denied, and that he was never hospitalized for the condition. (R. 13). She also noted his assertion that he did not have difficulty getting along with bosses or other authority figures, and that his "therapist consistently noted that he presented as cooperative and friendly, with good concentration." (R. 13).
Turning to opinion evidence, ALJ Edgell gave significant weight to the opinion of consultative examiner Dr. Ali. (R. 20). She noted that Dr. Ali conducted an in-person evaluation of Plaintiff, and that his opinion was "generally consistent with his own examination and the medical evidence of record, which did not indicate any limitations beyond those caused by his congenital ailments and COPD." (R. 20). The ALJ gave some weight to the opinion of consultative examiner Dr. Philip that Plaintiff was limited from continual walking, and significant weight to the rest of her opinion. (R. 20). She noted that Dr. Philip had the opportunity to examine Plaintiff in-person. (R. 20). Regarding the opinion of consultative examiner Dr. Andrews-Watson, the ALJ gave some weight to her opinion that Plaintiff was limited to medium work, but no weight to her assessment of Plaintiff's visual limitations, noting that there was "no evidence that [Plaintiff] complained of worsening vision or sought follow-up treatment." (R. 21). ALJ Edgell gave great weight to the opinion of psychiatric consultative examiner Dr. Helprin, noting that she evaluated Plaintiff in-person, and that her opinion that his "psychiatric problems did not interfere with his daily functioning" was consistent with the doctor's evaluation and relevant treating notes. (R. 15).
In terms of weight accorded to the opinions of Plaintiff's treating physicians, the ALJ gave slight weight to the opinions of Dr. Bhanusali. (R. 20-21). While she acknowledged that he was a treating physician with a specialization in orthopedics, she found that his assessments were generally not supported by the evidence of record, and were contradicted by Plaintiff's testimony at the initial hearing held on August 17, 2011 that he was able to lift a thirty-pound child. (R. 20-21). She further noted that whether Plaintiff was "disabled" was a matter reserved for the Commissioner. (R. 21). The ALJ gave no weight to the opinion of Dr. Nasir, finding that it was based solely on Plaintiff's subjective allegations and was not supported by any evidence of record, but was instead contradicted by the evidence of record. (R. 21). Finally, ALJ Edgell determined that because Ms. Hinton was a social worker, she was not an acceptable medical source and her opinion was therefore given no weight. (R. 14).
At the fourth step, the ALJ determined that Plaintiff was capable of performing his past relevant work as a packager, hand. (R. 22). She found that the work did not require performance of work-related activities that were precluded by Plaintiff's RFC, and her finding was supported by the vocational expert's testimony. (R. 22-23). The ALJ concluded that Plaintiff had not been under a disability, as defined in the Act, from February 1, 2008 through the date of her decision, November 10, 2014. (R. 23-24).
Plaintiff argues that ALJ Edgell's decision is erroneous as a matter of law and is not supported by substantial evidence. Specifically, Plaintiff contends that: (i) ALJ Edgell erred in her application of the treating physician rule; (ii) the ALJ further erred in assessing Plaintiff's credibility; and (iii) the ALJ's RFC assessment was flawed. (Docket No. 13). In opposition to Plaintiff's motion and in support of her own motion, the Commissioner argues that substantial evidence supports the ALJ's decision, and specifically that: (i) the ALJ properly evaluated the medical opinion evidence; (ii) the ALJ properly assessed Plaintiff's credibility; and (iii) the ALJ's RFC finding is supported by substantial evidence. (Docket No. 23).
A claimant is disabled and entitled to disability benefits if he or 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 12 months.'" Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)). The SSA has enacted a five-step sequential analysis to determine if a claimant is eligible for benefits based on a disability:
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008); 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)).
The claimant has the general burden of proving that he or she is statutorily disabled "`and bears the burden of proving his or her case at steps one through four.'" Cichocki, 729 F.3d at 176 (quoting Burgess, 537 F.3d at 128). At step five, the burden then shifts "to the Commissioner to show there is other work that [the claimant] can perform." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 445 (2d Cir. 2012) (citation omitted).
When reviewing an appeal from a denial of Social Security benefits, the Court's review is "limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quotation marks and citations omitted); see also 42 U.S.C. § 405(g). The Court does not substitute its judgment for the agency's, "or determine de novo whether [the claimant] is disabled." Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (alteration in original) (quotation marks and citations omitted). If the findings of the Commissioner are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence standard "is still a very deferential standard of review — even more so than the `clearly erroneous' standard. The substantial evidence standard means once an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault, 683 F.3d at 448 (emphasis in the original) (citations and quotation marks omitted). "If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld." McIntyre, 758 F.3d at 149 (citation omitted). Even if there is evidence on the other side, the Court defers "to the Commissioner's resolution of conflicting evidence." Cage, 692 F.3d at 122 (citation omitted).
However, where the proper legal standards have not been applied and "might have affected the disposition of the case, [the] court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ. Failure to apply the correct legal standards is grounds for reversal." Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quotation marks and citation omitted).
Plaintiff argues that ALJ Edgell did not properly apply the treating physician rule. Specifically, he argues that the ALJ erred by "dismiss[ing] the opinions of the treating physicians," by failing to provide "good reasons" for the weight she accorded each opinion, and by relying on the opinions of the consulting physicians. (Docket No. 13 at 14). Plaintiff, in particular, takes issue with the ALJ's treatment of Dr. Bhanusali's and Dr. Nasir's treating physician opinions, as well as her treatment of the opinion of consultative examiner Dr. Helprin. (Docket No. 13 at 16-18, 20). The Commissioner maintains that the ALJ properly evaluated the medical opinion evidence. (Docket No. 23 at 22-29).
In determining an applicant's RFC, the ALJ must apply the treating physician rule, which requires the ALJ to afford controlling weight to the applicant's treating physician's opinion when the opinion 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). Thus, "`[a] treating physician's statement that the claimant is disabled cannot itself be determinative.'" Petrie v. Astrue, 412 F. App'x 401, 405 (2d Cir. 2011) (quoting Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003)). Moreover, if there is substantial evidence in the record that contradicts or questions the credibility of a treating physician's assessment, the ALJ may give that treating physician's opinion less deference. Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (refusing to give controlling weight to treating physicians' opinions, as they were not supported by substantial evidence in the record); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (same); Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993) (same).
To discount the opinion of a treating physician, the ALJ must consider various factors and provide a "good reason." 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). These factors include: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the supportability of the opinion; (4) the consistency with the record as a whole; (5) the specialization of the treating physician; and (6) other factors that are brought to the attention of the Court. See Halloran, 362 F.3d at 32 (citing 20 C.F.R. § 404.1527(c)(2)-(6)).
The Second Circuit has made clear that the ALJ need not "slavish[ly] recit[e] . . . each and every factor where the ALJ's reasoning and adherence to the regulation are clear." Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013); see also Molina v. Colvin, No. 13 Civ. 4701(GBD)(GWG), 2014 WL 2573638, at *11 (S.D.N.Y. May 14, 2014) (collecting cases). What is required, however, is that the ALJ provide "good reasons" when not affording controlling weight to a treating physician's opinion. Selian, 708 F.3d at 419 (citing Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); 20 C.F.R. § 404.1527(c)(2)); see also Petrie, 412 F. App'x at 407 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)) ("[W]here `the evidence of record permits [the Court] to glean the rationale of an ALJ's decision, [the Court] do[es] not require that he have mentioned every item of testimony presented to him or have explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.'").
Plaintiff focuses on the ALJ's treatment of the opinions of treating physicians Dr. Bhanusali and Dr. Nasir, and claims that ALJ Edgell failed to provide "good reasons" for the weight she accorded these opinions. (Docket No. 13 at 12, 16-18, 20; see also Docket No. 24 at 5-6). The ALJ gave slight weight to Dr. Bhanusali's opinions that Plaintiff could lift less than ten pounds occasionally, stand and/or walk for less than two hours per day, perform no pushing or pulling and sit for up to six hours per day. (R. 20-21). She gave no weight to Dr. Nasir's opinion that Plaintiff was limited to less than sedentary work. (R. 21). ALJ Edgell explained that Dr. Bhanusali's opinions were contradicted by "various normal physical examination findings, other than mild abnormalities of the right upper extremity." (R. 20). Likewise, she found that Dr. Nasir's opinion was not supported by any objective findings of "such severe limitations," and that it was contradicted by medical evidence of record, including normal examinations and negative electrodiagnostic studies of his upper extremities, except for mild findings in Plaintiff's right upper extremity. (R. 21).
Indeed, the opinions of Dr. Bhanusali and Dr. Nasir were not supported by substantial evidence. See Halloran, 362 F.3d at 32. Dr. Bhanusali's own treatment notes from January 11, 2010 through July 25, 2011, frequently indicate that Plaintiff's range of motion in his right shoulder was almost full, although at times it was painful. (R. 409, 412, 472, 474, 811). His treatment notes further indicate that physical therapy helped Plaintiff's right shoulder pain, and that Plaintiff repeatedly chose not to have surgery or an injection, thus reflecting a conservative course of treatment. (R. 412, 474-75, 478-81, 483). Although an MRI identified mild AC joint dislocation, Dr. Bhanusali did not find any such dislocation. (R. 405, 407-08). Turning to Dr. Nasir, his treatment notes reflect that Plaintiff's musculoskeletal system was normal, and that he had no joint swelling, joint pain, leg cramps, joint stiffness, or shooting pain in his legs, arms or back. (R. 765). Where a treating physician's opinion conflicts with his own treatment notes, the ALJ is not required to give that opinion controlling weight. Cichocki v. Astrue, 534 F. App'x 71, 75 (2d Cir. 2013).
Treatment notes from other treating sources also contradict Dr. Bhanusali's and Dr. Nasir's opinions regarding the severity of Plaintiff's limitations. For example, treatment notes from Cross Valley frequently indicated that Plaintiff had no complaints or back pain, that he had normal posture, gait and motor strength, and that he had normal range of motion in his joints. (R. 488, 491-93, 496, 502-06, 526-27, 529-30, 626, 628-30, 633, 639-40). Dr. Chaudhry also found that Plaintiff had a normal range of motion in all of his joints. (R. 966). The reports of the consultative examiners further contradict the conclusions contained in Dr. Bhanusali's and Dr. Nasir's opinions. For example, Drs. Ali, Philip and Andrews-Watson all found that Plaintiff had a normal gait, was able to walk on heels and toes without difficulty, had a full squat and normal stance, and that he had a full range of motion in his cervical and lumbar spine. (R. 383, 438-39, 1003). Dr. Ali and Dr. Andrews-Watson also found that Plaintiff had a full range of motion in his shoulders. (R. 383, 1003). The Court therefore finds that the ALJ did not err in her application of the treating physician rule, and that substantial evidence contradicts or calls into question the opinions of Dr. Bhanusali and Dr. Nasir.
Plaintiff also maintains that ALJ Edgell erred in her treatment of Dr. Helprin's opinion, which she afforded great weight. (R. 15). Plaintiff first argues that the ALJ failed to consider the portion of Dr. Helprin's opinion that stated that Plaintiff would not be able to manage his own funds, but then argues that Dr. Helprin's opinion is generally in "stark contrast" to the records from Occupations. (Docket No. 13 at 16). ALJ Edgell justified giving Dr. Helprin's opinion great weight by noting that Dr. Helprin had an opportunity to evaluate Plaintiff in-person, and by finding that Dr. Helprin's opinion — that Plaintiff's psychiatric problems did not interfere with his daily functioning — was consistent with the consulting physician's own evaluation of Plaintiff, as well as with treatment notes from Occupations. (R. 15). Indeed, treatment notes from Ms. Hinton indicate that by the time Plaintiff switched to medication management status, there were no identifiable risks or concerns, and Plaintiff's mood was stable. (R. 788, 1100). The Court therefore finds no error in the weight the ALJ afforded the opinion of Dr. Helprin. See Mongeur, 722 F.2d at 1039 (noting that a consultative examiner's opinion may constitute substantial evidence). In addition, as ALJ Edgell correctly noted, Ms. Hinton is not an acceptable medical source under the SSA's rulings, and her opinion was therefore given no weight. (R. 14, citing SSR 06-03p
In affording Plaintiff's treating physicians less than controlling weight, ALJ Edgell was not required to "slavish[ly] recit[e] . . . each and every factor" she considered, Atwater 512 F. App'x at 70, but was instead required to provide "good reasons," Selian, 708 F.3d at 419. Based on the above analysis, the Court finds that the ALJ provided good reasons for why Plaintiff's treating physicians' opinions were not afforded controlling weight — namely, that the opinions were contradicted by substantial evidence. Moreover, contrary to Plaintiff's contentions, it was not legal error for the ALJ to afford greater weight to the opinions of consulting physicians than to the opinions of treating physicians. McDonaugh v. Astrue, 672 F.Supp.2d 542, 567 (S.D.N.Y. 2009) ("the ALJ was permitted to assign less weight to [the treating physician's] opinion than to other opinions in the record that were better supported by the objective medical findings and, in general, were more consistent with the evidence.") (citations omitted)); see also Mongeur, 722 F.2d at 1039. Thus, the Court finds that ALJ Edgell did not err in her application of the treating physician rule.
Plaintiff next argues that the ALJ failed to properly explain her credibility determination. When evaluating a claimant's assertions of pain and other limitations, the ALJ must utilize a two-step approach as outlined in the regulations. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). First, the ALJ must determine "whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged." Id. (citing 20 C.F.R. § 404.1529(b)). Then, the ALJ must "consider `the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence' of record." Id. (quoting 20 C.F.R. § 404.1529(a)). Although the ALJ is required to consider Plaintiff's reports of pain and other limitations when determining the RFC, she may use discretion when weighing the credibility of Plaintiff's subjective complaints. Id.
At the first step, ALJ Edgell found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms. (R. 18). Turning to the second step, she found that Plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms were not entirely credible. (R. 18). The ALJ provided reasons for her finding. For example, she noted that although Plaintiff was born with blindness in his left eye and deafness in his left ear, those conditions did not prevent him from working prior to 2008. (R. 18). She further noted that Plaintiff reported that he wore prescription glasses for reading, and was able to follow written instructions. (R. 18). ALJ Edgell also pointed to Dr. Philip's observation that Plaintiff did not have any trouble hearing or understanding during her examination of Plaintiff. (R. 18). Turning to Plaintiff's shoulder plain, ALJ Edgell referred to the medical evidence of record, which indicated that Plaintiff "exhibited only mild symptoms, improved rapidly with physical therapy, and recovered almost entirely with time." (R. 18; see also supra Section II(C)). ALJ Edgell performed a detailed analysis of Plaintiff's medical history in reaching her conclusion that Plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms were not entirely credible. (R. 18-20). This determination was within the ALJ's discretion, was not a legal error, and is supported by substantial evidence.
Finally, Plaintiff contends that the ALJ erred in her determination that Plaintiff retained an RFC for medium work, subject to certain limitations. First, Plaintiff argues that ALJ Edgell did not cite to the evidence of record in making her determination. (Docket No. 13 at 23). This argument must fail, as ALJ Edgell specifically considered "all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical [and other] evidence," as well as "opinion evidence." (R. 18). Second, Plaintiff argues that the ALJ erred because she did not cite to any medical source opinion in making her determination. (Docket No. 13 at 24). The Court first notes that ALJ Edgell did consider opinion evidence in making her RFC determination. (R. 18; see also R. 20-21). Moreover, as the Commissioner correctly argues, the RFC determination is made by the ALJ, based on her consideration of the entire record, and is not based exclusively on a medical source opinion. (Docket No. 23 at 31). Specifically, the SSA's regulations provide that "[a]lthough we consider opinions from medical sources on issues such as . . . [a claimant's] residual functional capacity . . . the final responsibility for deciding these issues is reserved to the Commissioner." 20 C.F.R. § 404.1527(d)(2); 20 C.F.R. § 416.927(d)(2); see also Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013) ("Although the ALJ's conclusion may not perfectly correspond with any of the opinions of medical sources cited in his decision, he was entitled to weigh all of the evidence available to make an RFC finding that was consistent with the record as a whole."). Plaintiff's second argument thus also fails.
Plaintiff next argues that ALJ Edgell improperly modified Dr. Ali's opinion that Plaintiff "should avoid smoke, dust, or other known respiratory irritants secondary to asthma," by adding the word "concentrated" to her RFC determination that Plaintiff was limited to "no more than occasional exposure to concentrated respiratory irritants." (Docket No. 13 at 25; see also R. 17, 383-84). However, for the reasons just discussed, the ALJ is tasked with deciding a claimant's RFC based on her review of the record as a whole, and the RFC need not correspond exactly to an opinion from a medical source. Matta, 508 F. App'x at 56. Moreover, medical evidence of record supports the ALJ's finding regarding Plaintiff's limitation. Although Dr. Ali advised that Plaintiff should avoid known respiratory irritants, (R. 383-84), treatment notes from his pulmonologist, Dr. Chaudhry, repeatedly found that, although Plaintiff had COPD and a sleep apnea, he had good air entry bilaterally and his lungs were clear to auscultation and percussion. (R. 965, 967, 973-80).
Finally, Plaintiff argues that ALJ Edgell erred by failing to consider the combined effect of all of Plaintiff's impairments in making her RFC determination, and points specifically to the hypothetical that the ALJ asked the vocational expert, which did not account for Plaintiff's mental health. (Docket No. 13 at 26). However, the ALJ "carefully considered all [of Plaintiff's] impairments, both severe and non-severe, in assessing [Plaintiff's RFC], and all medically supported restrictions" were "incorporated into that finding." (R. 16). As discussed supra Section II(C), evidence in the record regarding Plaintiff's mental health indicated that there were no identifiable risks or concerns, that Plaintiff's mood was stable, and that his psychiatric problems were not significant enough to interfere with his daily functioning. (R. 788, 1010, 1100). Plaintiff did not meet his burden to prove otherwise. See Cichocki, 729 F.3d at 176.
Moreover, the ALJ's RFC determination was supported by substantial evidence. As discussed supra Section II(C), ALJ Edgell's treatment of opinion evidence from Plaintiff's treating physicians was supported by substantial evidence. In addition, the ALJ carefully reviewed all of the evidence of record in making her RFC determination. For example, she reviewed Plaintiff's records from physical therapy and noted that his right shoulder had improved after one month of physical therapy, and that by January 2013, he had a full range of motion. (R. 29). Plaintiff also repeatedly chose not to have surgery or an injection for his right shoulder pain. (R. 412, 474-75, 478-81, 483). The ALJ further noted that lower extremity arterial testing in 2013 and 2014 showed no evidence of PVD. (R. 19). Turning to his mental health, treatment notes reflected that Plaintiff was in stable condition and that his mental health did not pose any risks or concerns. (R. 788, 1100). In short, there is substantial evidence to support the ALJ's determination, as detailed in her careful analysis.
As set forth above, the Court finds no legal error in ALJ Edgell's determination of Plaintiff's RFC.
For the foregoing reasons, I conclude and respectfully recommend that Plaintiff's motion for judgment on the pleadings should be denied and the Commissioner's cross-motion should be granted, and the case be dismissed.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report and Recommendation to serve and file written objections. See Fed. R. Civ. P. 6(a) and (d) (rules for computing time). If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed. R. Civ. P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Cathy Seibel at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at said Courthouse.
Requests for extensions of time to file objections must be made to the Honorable Cathy Seibel and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b), 6(d), 72(b); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).
