BARBARA MOSES, Magistrate Judge.
Plaintiff Alexander Ramirez brings this action pursuant to § 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking judicial review of a final determination of the Commissioner of Social Security (the Commissioner) denying his application for Supplemental Security Income (SSI). Plaintiff was represented below but filed this action pro se. Now before the Court is the Commissioner's unopposed motion for judgment on the pleadings. For the reasons set forth below, I respectfully recommend that the motion be GRANTED.
Plaintiff was born on June 5, 1970. See Certified Administrative Record (Dkt. No. 13) at 150 (hereinafter "R. ___.") He completed the ninth grade in 1986 and had no further schooling. (R. 155.) Between 1998 and 2010 he held a variety of jobs, including working in a deli, delivering pizzas, performing maintenance, and as a short order cook. (R. 155, 174-78.) He has a history of drug abuse and testified that he was in a methadone maintenance program. (R. 47-48.)
In a Function Report dated September 6, 2013, prepared in connection with his application for SSI, plaintiff stated that he experienced panic attacks and nightmares, but that he was able to go out alone, traveled by walking, and shopped for food on a weekly basis. (R. 162-65.) Plaintiff further reported that he was able to pay bills, count change, and handle a savings account. (R. 165.)
With regard to his mental state, plaintiff reported that because of his panic disorder, he had difficulty getting along with people in authority; was scared to talk with people; sometimes forgot his appointments; and suffered "high anxiety" when faced with stress or change in his schedule. (R. 168-69.) He traced the onset of his panic attacks to the death of his father, and reported that they caused fear, rapid heartbeat, shortness of breath, sweating, and confusion. (R. 171-72.) However, even during an attack, plaintiff reported that he was able to shop and drive. (R. 172.)
With regard to his physical condition, Ramirez asserted that his right leg hurt "sometimes" when he walked, but did not affect his ability to lift, stand, sit, climb, kneel, squat, reach, hear or talk. (R. 166-67.) He also stated that he played basketball and walked 20 miles "every other day." (R. 165.) Elsewhere in the same Function Report, however, plaintiff stated that he had to rest for twenty minutes after walking one block (R. 168), and that he had experienced severe lower back pain, "like my back is twisting," every morning since 1992, relieved by Tylenol. (R. 169-70.)
Plaintiff filed his SSI application on August 12, 2013, alleging that he became disabled as of January 1, 2011, at the age of 43. (R. 130.) He initially identified his physical impairments as Hepatitis C, hypertension, and lower back and heel pain. (R. 154.) He listed his mental impairments as panic disorder, depression, and bipolar disorder. (Id.) The Social Security Administration (SSA) denied plaintiff's application on October 23, 2013. (R. 70-74.)
In an updated Disability Report, dated December 19, 2013, plaintiff added that he had been "diagnosed with schizophrenia" (R. 192), and that he took a variety of psychotropic medications, including Seroquel (an anti-psychotic) and Xanax (for anxiety), but experienced no side effects as a result of these medications. (R. 194.) He also stated that because of his impairments he felt "bad and weak," "like not doing anything," and "barely travels anymore." (R. 195.)
On May 19, 2015, plaintiff appeared by video, with counsel, before Administrative Law Judge (ALJ) Jack Russak. (R. 33.) Vocational expert Marian Marracco also testified. (R. 39, 233.) In a written decision dated June 9, 2015, the ALJ found that plaintiff was not disabled within the meaning of the Act. (R. 16-32.) On June 30, 2015, plaintiff timely requested review of the ALJ's decision (R. 14-15.) On November 7, 2016, the Appeals Council denied his request for review, making the ALJ's decision final. (R. 1-4.)
Plaintiff saw various medical providers at All Med and Rehabilitation of New York (All Med) from 2012 through 2015. On January 17, 2012, plaintiff was seen for insomnia and depression, as well as other physical impairments described below, by primary care provider Dr. Monica Martin. (R. 368.) Dr. Martin prescribed Ambien for plaintiff's insomnia and issued him a referral for his depression. (Id.)
On February 7, 2012, Nurse Practitioner Francis Dooley performed an initial psychiatric evaluation. (R. 367.) Plaintiff reported shortness of breath, chest tightness, rapid heartbeat, restlessness, and sweating. (Id.) Nurse Dooley prescribed Klonopin and Prozac. (Id.) During subsequent visits, in February, March, April, May, June, August, September, October, November, and December 2012, Nurse Dooley and treating psychiatrist Dr. Edward Fruitman generally remarked that, with medication, plaintiff's panic disorder was under control, and his anxiety and sleep improved. (R. 352-57, 362-66.) However, in August 2012, Nurse Dooley noted that plaintiff's Klonopin was "not help[ing]," after which plaintiff's medication was switched to Xanax. (R. 357.) Nurse Dooley and Dr. Fruitman identified no side effects from plaintiff's medications. (R. 355, 356, 362.)
On March 7, 2013, plaintiff was seen at Lincoln Medical and Mental Health Center (Lincoln Medical) for anxiety and chest pain. (R. 270, 275-76, 325.) He told Dr. Romeo Purugganan, a psychiatrist, that he had anxiety because he ran out of Xanax, but denied other symptoms of anxiety or depression. (R. 270.) A urine toxicology test came back positive for methadone, benzodiazepenes, and PCP. (R. 270, 271, 274.) Dr. Purugganan noted that plaintiff was cooperative, had an appropriate affect, and a logical and coherent thought process without suicidal thoughts, hallucinations or delusions. (R. 271.) Plaintiff was assigned a Global Assessment of Functioning Score (GAF) of 55 to 60, indicating moderate symptoms and functional limitations. (Id.)
Plaintiff returned the next day, March 8, 2013, after having locked himself in a bathroom and taken four to five Xanax that he had purchased on the street. (R. 265-67, 333, 336.) Various providers at Lincoln Medical noted that plaintiff had a history of depression, anxiety, and druginduced mental disorders, had been receiving methadone treatment for drug dependence for the past 13 years, and had also reported abusing Xanax and PCP. (R. 265, 267, 329.) Plaintiff was psychiatrically cleared and discharged that day, even though Dr. Purugganan recommended that he be admitted for an inpatient detoxification program. (R. 329.) On March 9, 2013, plaintiff appeared at Lincoln Medical again, complaining of chest pain but asking for Xanax. (R. 260.) Dr. Christopher Shield gave him Haldol and Ativan, noting that he had "refus[ed] to get into the bed" and was a "risk to other[s]." (R. 261.)
On March 12, 2013, Nurse Dooley at All Med noted that plaintiff had just been released from St. Barnabas Hospital after a four-day detox. (R. 351.)
On May 12, June 9, July 8, August 5, and September 30, 2014, plaintiff was seen by All Med Physician's Assistant Benefita Jones. (R. 429, 432-37.) PA Jones noted that plaintiff was stable on his medications without side effects, and slept and ate well. (R. 432-37.) He was cooperative, with normal speech, and a euthymic mood. His thought process was organized, logical and without hallucinations, delusions, paranoia, or anxiety. Plaintiff demonstrated good insight and judgment, normal orientation, and grossly intact cognition. (R. 432-37.) On September 4, October 2, and October 31, 2014, plaintiff was seen by All Med Physician's Assistant Nilam Wadhvania. (R. 424-27, 430-31.) PA Wadhvania's findings were similar to those of PA Jones. (R. 424, 426, 430.)
On December 29, 2014 and March 25, 2015, plaintiff was seen by All Med Nurse Practitioner Raymond Sanchez, who noted that plaintiff was stable on medication. (R. 422, 413.) On April 24, 2015, plaintiff was seen by PA Jones, who noted again that he was stable on his medications and had no side effects. (R. 411.) Plaintiff appeared normal on physical exam and was cooperative, with normal speech, normal mood and affect, organized and logical thought processes, and normal thought content with good insight/judgment. (Id.)
On July 2, 2012, plaintiff saw Dr. Paul Igbide at All Med for hypertension. (R. 358-61.) Plaintiff reported that he felt well; denied any illicit drug use; and appeared to be in "superb health." (R. 358-61.) On August 5, 2013, plaintiff was seen by Dr. Martin, his primary care physician at All Med, for follow up on his lab results. (R. 342-44.) Plaintiff's physical exam was generally normal. Dr. Martin assessed chronic hepatitis C without hepatic coma, benign hypertension, and hypercholesterolemia. (R. 343.) An October 8, 2013 lumbosacral spine x-ray showed that Plaintiff had degenerative changes (osteoarthritis) at L1-L2, but no compression fracture. (R. 384.)
On April 16, 2015 plaintiff saw Dr. Martin for completion of his disability paperwork. (R. 445-46.) Dr. Martin's notes from that visit state:
(Id.)
Plaintiff denied having any symptoms during this visit, and Dr. Martin's examination was normal. (R. 446.) Dr. Martin also noted that plaintiff had complained of "mild" lower back pain "last time," but "failed to go to ortho, neurol, pain managem[ent]." (Id.) Dr. Martin concluded, " Form filled out that [patient] can work on a regular and continuing basis with no limitations from a medical point of view." (Id.)
On various dates from March 2012 through February 2013, plaintiff also sought treatment at Lincoln Medical for a variety of conditions including pneumonia, abscesses, and back pain. (R. 244-321, 322-339.) During a visit on February 3, 2013, the Lincoln Medical records reflect that plaintiff tested positive for opioids and cocaine. (R. 322, 324.)
On October 8, 2013, Dr. David Mahony, Ph.D., conducted a consultative psychiatric evaluation of the plaintiff. (R. 373-78.) Plaintiff reported that he was homeless and had walked four hours to the evaluation. (R. 374.) He also told Dr. Mahony that he had been laid off from his last job but "could work." (Id.) Plaintiff reported symptoms of depression "secondary to being raped while incarcerated," but could not "clarify the dates of this event." (R. 374-75.) The evaluation was conducted in Spanish because plaintiff reported that he did not speak English. (R. 374.)
Dr. Mahony found that plaintiff had cognitive deficits and "borderline" cognitive functioning. (R. 375-76.) His attention, concentration, sensorium, and memory were all impaired. (Id.) Plaintiff was able to count, but gave an incorrect answer when asked to subtract, and said "no" when asked to do "serial 3s." (R. 376.) Plaintiff's mood and affect were anxious. Id. He reported that he was able to dress, bathe and groom himself, and assist with household activities of daily living. (Id.) Dr. Mahony opined that plaintiff would have no difficulty in following and understanding simple directions and instructions or performing simple tasks independently; moderate difficulty maintaining attention and concentration and maintaining a regular schedule; and marked limitations in learning new tasks, performing complex tasks, making appropriate decisions, relating to others, and dealing with stress. (R. 376-77.) Dr. Mahony also concluded that plaintiff would not be able to "manage his own funds due to cognitive and psychiatric problems and the risk for substance abuse relapse." (Id.)
On October 15, 2013, state agency medical consultant Dr. G. Kleinerman reviewed plaintiff's medical records. Dr. Kleinerman, who did not personally examine Ramirez, opined that plaintiff had "moderate" difficulties in maintaining concentration, persistence or pace, but only "mild" difficulties in maintaining social functioning and "mild" restrictions in activities of daily living. (R. 61.) Dr. Kleinerman noted that there was "insufficient evidence of repeated episodes of decompensation." (Id.) Dr. Kleinerman then completed a mental residual functional capacity (RFC) assessment of the plaintiff. He concluded that plaintiff had "moderate" limitations in several areas, including his ability to understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; work in coordination with or in proximity to others without distraction; interact appropriately with the general public; and accept instructions and respond appropriately to criticism for supervisors; but was not otherwise limited with respect to his ability to perform sustained work activities. (R. 64-65.) For example, Dr. Kleinerman concluded that plaintiff was "not significantly limited" in his ability to understand, remember, and carry out simple instructions; maintain regular attendance; sustain an ordinary routine; and make simple-work related decisions. (Id.) He acknowledged that Dr. Mahony's recent opinion had been "more restrictive," but noted that Dr. Mahony relied "heavily" on plaintiff's subjective reports of his symptoms — which in Dr. Kleinerman's view were not supported by the totality of the evidence — and overestimated the severity of plaintiff's limitations based on a single consultative visit. (R. 66.)
Dr. Fruitman, plaintiff's treating psychiatrist, completed a medical source statement on September 30, 2014. (R. 393.) Dr. Fruitman noted plaintiff's panic disorder, gave him a GAF of 50 (indicating "serious" symptoms), and noted that his highest GAF had been 55 (indicating "moderate" symptoms). (R. 393.) Dr. Fruitman opined that plaintiff's impairments would require him to be absent from work about three times a month (R. 394), and that plaintiff's ability to understand, remember, and carry out instructions (R. 395) were affected by his impairments, as was his ability to respond appropriately to supervision, coworkers, and work pressure in a work setting. (Id.) With respect to plaintiff's functional limitations, Dr. Fruitman opined that plaintiff had "moderate" restrictions of activities of daily living and "marked" difficulties in maintaining social functions; would "often" experience deficiencies of concentration, persistent, or pace resulting in failure to complete tasks in a timely manner; and that "once or twice" he had had episodes of deterioration or decompensation. (R. 396-97.)
Six months later, Dr. Fruitman completed a second medical source statement, dated March 10, 2015 (R. 402-06), giving Ramirez a GAF of 60 (the "mild" range begins at 61). (R. 402.) Dr. Fruitman noted nearly the same signs and symptoms as in his previous opinion (id.), and found some of the same functional limitations; however, in his March 2015 opinion, Dr. Fruitman concluded that plaintiff would have only "moderate" (rather than "marked," as in the past) difficulties in maintaining social functions. (R. 405.)
Consultative examiner Dr. Inessa Svistunova conducted an internal medicine examination of plaintiff on October 8, 2013. (R. 380-83.) Plaintiff reported a right foot pain that he had had for "many years," characterizing the pain as 7/10 in intensity, aggravated with walking and prolonged standing, and alleviated with Aleve and Methadone. (R. 380.) In addition, he had pain to palpitation of his right heel. (R. 382.) Plaintiff reported that he did not use an assistive device for ambulation, and was able to cook, clean, do laundry, shop, and groom himself. (Id.) On examination, Plaintiff was in no acute distress, but displayed an antalgic gait favoring his right side and was unable to walk on his heels and toes. (R. 381.) He could squat fully with assistance, had a normal stance, needed no help changing or getting on or off of the examination table, and could rise from a chair without difficulty. (Id.) The remainder of plaintiff's physical exam was normal, though Dr. Svistunova noted that his lumbosacral x-ray showed "degenerative changes." (R. 381-82.) Dr. Svistunova diagnosed right foot pain, hypertension, depression, and history of substance abuse. (Id.) She opined, without further explanation, that plaintiff had "moderate to severe" limitations not only in walking, prolonged standing, and using stairs, but also in lifting, carrying, pushing, and pulling, all secondary to right foot pain. (Id.)
At the May 19, 2015 hearing, plaintiff testified that he had been looking for jobs up to and including the day before the hearing, when he looked for car washing and dish washing positions. (R. 36.) Plaintiff's attorney indicated that plaintiff had brought a cane to the hearing. (R. 37.)
Plaintiff testified that he was able to walk two blocks without stopping, but had trouble standing. (R. 43.) He acknowledged that he was in a methadone maintenance program but insisted that he had not used illicit drugs in a "long time." (R. 44.) He said that he sometimes had difficulty remember things and focusing. (R. 44-45.) He explained that he saw Dr. Fruitman once a month and took medication, which helped him feel better. (R. 45.) On examination by his attorney, plaintiff testified that his medication made him feel sweaty and lightheaded. (R. 46.)
The ALJ then asked vocational expert Marracco to assume that a hypothetical claimant could engage in light work but could climb ramps and stairs only occasionally; could never climb ladders or scaffolds; could occasionally stop, crouch, or kneel, but never crawl; could not move machinery, experience unprotected heights or drive a vehicle; could only perform simple routine tasks, in a low stress setting, with occasional decision making, changes in the work setting, and occasional judgment; and would be permitted to be off task 5% of the workday, with no interaction with the public, and occasional interaction with coworkers. (R. 51-52.) Marracco testified that the hypothetical claimant could perform the job of conveyer line bakery worker (236,000 jobs),
The ALJ correctly set out the five-step sequential evaluation process used pursuant to 20 C.F.R. § 416.920(a) to determine whether a claimant over the age of 18 is disabled within the meaning of the Act. The Second Circuit has described the sequence as follows:
Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (citation omitted).
If it is determined that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not progress to the next step. 20 C.F.R. § 416.920(a)(4). A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden at the fifth step. See Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). To support a finding that the claimant is not disabled at step five, the Commissioner must offer evidence demonstrating that other work exists in significant numbers in the national and local economies that the claimant can perform, given the claimant's RFC, age, education, and past relevant work experience. See 20 C.F.R. §§ 416.912(f) (2015), 416.960(c).
The regulations as they existed at the time of the Commissioner's decision provide further guidance for evaluating whether a mental impairment meets or equals a listed impairment at the third step. In a "complex and highly individualized process," 20 C.F.R. § 416.920a(c)(1), the ALJ was required to determine how the impairment "interferes with [the claimant's] ability to function independently, appropriately, effectively, and on a sustained basis." 20 C.F.R. § 416.920a(c)(2). The main areas to be assessed were the claimant's (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. 20 C.F.R. § 416.920a(c)(3) (2011).
With respect to listed mental disorders, the claimant was required to show that he had at least two of the so-called "paragraph B criteria" or "paragraph C criteria." The paragraph B criteria required at least two of the following: (1) marked restriction of activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of decompensation. 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.04(B).
If a mental disorder does not meet or equal a listed impairment, it may still qualify as a disability if the claimant's RFC does not allow him to perform the requirements of his past relevant work, or if the claimant's limitations, age, education, and work experience dictate that he cannot be expected to do any other work in the national economy. 20 C.F.R. §§ 416.912(f) (2015), 416.960(c). The claimant's RFC is determined based on all of the relevant medical and other evidence in the record, including the claimant's credible testimony, objective medical evidence, and medical opinions from treating and consulting sources. 20 C.F.R. §§ 416.920(e), 416.945(a)(3).
Finally, at step five, the Commissioner is "responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy" that the claimant can do, given his RFC. 20 C.F.R. § 416.960(c)(2). "Under the law of this Circuit and the SSA Guidelines, the ALJ must call a vocational expert to evaluate a claimant's significant nonexertional impairments in order to meet the step five burden." Lacava v. Astrue, 2012 WL 6621731, at *18 (S.D.N.Y. Nov. 27, 2012) (citations omitted), report and recommendation adopted, 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012).
At step one, ALJ Russak found that plaintiff had not engaged in substantial gainful activity since August 12, 2013, the application date. (R. 21.)
At step two, the ALJ found that plaintiff suffered from the following "severe" impairments: Hepatitis C, lumbar degenerative disc disease, depressive disorder, anxiety disorder, panic disorder, drug dependence, and obesity. (R. 21.) Citing plaintiff's treatment notes from All Med and Lincoln Medical, as well as the consultative examination by Dr. Svistunova, the ALJ determined that plaintiff's hypertension was non-severe because it was "controlled with medication" and his blood pressure was normal, id., and that his subjective right foot pain was not a "medically determinable impairment" because plaintiff testified that "he frequently walks and plays basketball every other day," and because "there were no medical signs or laboratory findings to substantiate the existence" of this impairment.
At step three, the ALJ found that none of plaintiff's severe impairments met or medically equaled any listed impairment. (R. 22.) The ALJ considered Listings 1.04 (disorders of the spine), 5.05 (chronic liver disease), 12.04 (affective disorders), 12.06 (anxiety related disorders), and 12.09 (substance abuse disorders). He noted that while there was some medical evidence of cervical disc disorder, there was no evidence that plaintiff exhibited any of the criteria of Listing 1.04, including nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis resulting in an inability to ambulate effectively. Similarly, plaintiff's diagnosis of hepatitis C did not meet the criteria of Listing 5.05 because there was no evidence in the treating records or medical opinions of any of the conditions identified in the Listing. (Id.)
The ALJ also found that plaintiff's mental impairments did not meet the criteria of Listings 12.04, 12.06, and 12.09, either singly or in combination. (R. 22.)
At step four, the ALJ concluded that plaintiff had the RFC to perform light work as defined by 20 C.F.R. § 416.967(b), except that plaintiff was able to climb ramps or stairs, stoop, crouch or kneel only occasionally; was never able to crawl, climb ladders, ropes or scaffolds; and should have no exposure to moving machinery, unprotected heights or driving vehicles. (R. 24.) In addition, the ALJ found that plaintiff was limited to simple, routine tasks, in a low stress job, where he could be off task 5% of the day, in addition to regularly scheduled breaks, and would have no interaction with the public and only occasional interaction with co-workers. (Id.)
In determining plaintiff's RFC, the ALJ considered and discussed the record evidence, including plaintiff's treating notes, the opinions of his treating physicians, and the opinions of the consultative examiners. The ALJ concluded that plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms," but that his "statements concerning the intensity, persistence and limiting effects of the symptoms are not entirely credible," noting again plaintiff's admissions that he walked 20 miles every other day, spent time in the park and at the library, and traveled without difficulty or assistance. (R. 26-27.) Plaintiff's credibility suffered further by comparison to his medical records, which in the eyes of the ALJ showed that plaintiff was generally stable with medication, had not required any treatment for lower back pain, had no Hepatitis-related complications, and displayed no obesity-related impairments. (R. 26.)
The ALJ also relied on Dr. Fruitman's March 2015 opinion that plaintiff had only mild to moderate functional mental impairments, Dr. Kleinerman's opinion that plaintiff was not disabled due to his mental impairments, and the strongly worded opinion of his treating physician, Dr. Martin, that plaintiff could work without physical impairments. (R. 27.) The ALJ generally assigned these opinions great weight (id.); however, he assigned "little weight" to Dr. Fruitman's view that plaintiff had "marked" social functioning limitations and "would miss more than three days of work" because of his impairments. (Id.)
Relying on the vocational expert's testimony, the ALJ concluded that plaintiff could not perform his past work but would be able to perform the jobs of conveyor line bakery worker, production machine tender, or clerical sorter. (R. 29.) On this basis the ALJ found that "the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy," and he concluded that plaintiff was not disabled within the meaning of the Act. (Id.)
The Commissioner moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), arguing that the ALJ's RFC determination and credibility finding were legally correct and supported by substantial evidence, and the ALJ did not err in finding that the plaintiff could perform jobs in the national economy. See Def. Mem. of Law dated June 12, 2017 (Dkt. No. 19) at 14-22. After carefully reviewing the evidence, the Court agrees.
For the Commissioner to prevail, she must establish that no material facts are in dispute and that she is entitled to judgment as a matter of law. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988); Claudio v. Commissioner of Social Security, 2017 WL 111741, at *1 (S.D.N.Y. Jan. 11, 2017). The Act provides that the Commissioner's findings "as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). The reviewing court may set aside a decision of the Commissioner only if it is "based on legal error or if it is not supported by substantial evidence." Geertgens v. Colvin, 2014 WL 4809944, at *1 (S.D.N.Y. Sept. 24, 2014) (quoting Hahn v. Astrue, 2009 WL 1490775, at *6 (S.D.N.Y. May 27, 2009)); accord Longbardi v. Astrue, 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). Judicial review, therefore, involves two levels of inquiry. First, the court must decide whether the Commissioner applied the correct legal standard. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). Second, the court must decide whether the ALJ's decision was supported by substantial evidence. Tejada, 167 F.3d at 773; Calvello, 2008 WL 4452359, at *8. "In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides." Longbardi, 2009 WL 50140, at *21 (citing Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999), and Williams v. Bowen, 859 F.2d 255, 256 (2d Cir. 1988)).
Remand is appropriate where the ALJ fails to provide an adequate "roadmap" for his reasoning. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) ("the crucial factors in any determination must be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence"). However, if the ALJ adequately explains his reasoning, and if his conclusion is supported by substantial evidence, a court may not reverse or remand simply because it would have come to a different decision on a de novo review. See Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998) ("the court should not substitute its judgment for that of the Commissioner"); accord Ryan v. Astrue, 5 F.Supp.3d 493, 502 (S.D.N.Y. 2014); Cleveland v. Apfel, 99 F.Supp.2d 374, 379 (S.D.N.Y. 2000). "Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (internal quotation marks omitted).
In this case, I conclude that the ALJ's determination that plaintiff had the RFC to perform light work is 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.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1970)). However, the ALJ's determination may be set aside "only if the factual findings are not supported by substantial evidence." Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (quotation marks omitted). The reviewing court may not reweigh the evidence. "[O]nce an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (internal quotation marks omitted; emphasis in original). Thus, the substantial evidence standard is "a very deferential standard of review — even more so than the `clearly erroneous' standard." Id.; see also Brown v. Colvin, 73 F.Supp.3d 193, 198 (S.D.N.Y. 2014).
ALJ Russak found that plaintiff retained the RFC for light work, as defined in 20 C.F.R. § 416.967(b),
With respect to plaintiff's alleged physical impairments, his treatment notes — both from All Med and Lincoln Health — were generally normal. As the ALJ noted, plaintiff's primary care physician, Dr. Martin, who saw him frequently over a period of three years, opined that he had no physical limitations. (R. 446.) The ALJ gave Dr. Martin's opinion controlling weight because it was "well-supported" and "not inconsistent with the other substantial evidence" in the record. 20 C.F.R. § 416.927(c)(2) (2015). That opinion was further reinforced by plaintiff's self-report that he walked often, played basketball, and used no assistive devices for ambulation. Although consultative examiner Dr. Svistunova assessed moderate to severe limitations with respect to walking, prolonged standing, using stairs, lifting, carrying, pushing, pulling, the ALJ was not required to accept her opinion, nor to favor it over Dr. Martin's, particularly where, as here, other "substantial evidence supported the ALJ's decision," Pellam v. Astrue, 508 F. App'x 87, 89-90 (2d Cir. 2013), and the consultant's assessment — which was based entirely on plaintiff's claimed right foot pain (R. 382) — appeared to go beyond the bounds of her own findings.
With respect to plaintiff's mental impairments, the ALJ properly accounted for his limitations by restricting him to simple, routine tasks, with little interaction with co-workers, and no interaction with the public. As noted above, the ALJ gave great weight to Dr. Fruitman's September 2014 and March 2015 opinions that plaintiff had primarily "mild" to "moderate" mental limitations, because they were supported by the treatment notes. (R. 27.) He gave little weight to the portions of those opinions stating that plaintiff's impairments would cause him to be absent from work "about three times a month" (R. 394, 403), or to the portion of the September 2014 opinion that plaintiff had "marked" functional limitations in maintaining social functioning (R. 396), which Dr. Fruitman himself revised to "moderate" in March 2015. (R. 405.)
In the Second Circuit, "[t]he opinion of a treating physician is accorded extra weight because the continuity of treatment he provides and the doctor/patient relationship he develops place him in a unique position to make a complete and accurate diagnosis of his patient." Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983). Where a mental health condition is at issue, the treating physician rule takes on added importance because the "longitudinal relationship between a mental health patient and her treating physician provides the physician with a rich and nuanced understanding of the patient's health that cannot be readily achieved by a single consultative examination." Bodden v. Colvin, 2015 WL 8757129, at *9 (S.D.N.Y. Dec. 14, 2015). Although the treating physician rule is robust, it is not unassailable:
Norman v. Astrue, 912 F.Supp.2d 33, 73 (S.D.N.Y. 2012). See also 20 C.F.R. §§ 416.927(c)(2) — (c)(6) (listing factors). Consequently, the ALJ can decline to afford the opinion of a treating physician controlling weight "where, as here, the treating physician issued opinions that are not consistent with other substantial evidence in the record." Halloran, 362 F.3d at 32; see also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) ("When other substantial evidence in the record conflicts with the treating physician's opinion . . . that opinion will not be deemed controlling. And the less consistent that opinion is with the record as a whole, the less weight it will be given."); 20 C.F.R. § 404.1527 (c)(4) (2012) ("Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that medical opinion.").
If the ALJ does not afford controlling weight to the opinion of the treating physician, the ALJ must provide "good reasons" for that decision. Halloran, 362 F.3d at 32-33 (citing Schaal, 134 F.3d at 505); see also 20 C.F.R. § 416.927(c)(2) (the Commissioner "will always give good reasons in our . . . decision for the weight we give your treating source's medical opinion").
Absent "sufficient explanation," the ALJ may not selectively credit only the portions of a treating physician's opinions that support his determination while discounting other portions. See Scioscia v. Colvin, 2017 WL 934763, at *13 (E.D.N.Y. Mar. 9, 2017) (collecting cases). Here, however, the Court cannot conclude that the ALJ erred in assigning only some portions of Dr. Fruitman's opinions controlling weight while assigning others limited weight, because he provided sufficient reasons for doing so. See Halloran, 362 F.3d at 32 (concluding that ALJ "applied the substance of the treating physician rule" where he discussed the consistency of a treating physician's opinion with "the record as a whole," but pointed out "two key findings" that caused him to lack confidence in that physician's ultimate conclusion that the plaintiff could not perform her former job).
In assigning little weight to Dr. Fruitman's view that plaintiff's impairments would cause him to be absent from work "about three times a month," as well as his September 2014 statement (revised in March 2015) that plaintiff had "marked" limitations in maintaining social functioning, the ALJ noted that "the claimant was repeatedly assessed as mentally stable throughout his 2013 and 2014 outpatient treatment records." (R. 27.) Those treating notes (including the notes of Dr. Fruitman himself) and the other medical opinions in the record (including Dr. Fruitman's own March 2015 opinion) provide substantial support for this determination. (See R. 342-45, 349-50, 424, 426, 429, 430, 432-44.) The treatment records are devoid of any evidence of extended hospitalization, absenteeism, or anything else that would indicate that plaintiff would miss work for more than three days a month.
Dr. Fruitman's September 2014 opinion that plaintiff had "marked" limitations in maintaining social functioning would present a closer question, given that Dr. Mahony also opined that plaintiff had "marked" limitations in the same area; however, in March 2015, Dr. Fruitman himself opined that plaintiff had only moderate limitations in this functional area, indicating, as the ALJ noted, that "with medication and treatment, [plaintiff] remained stable." (R. 27.) Dr. Fruitman's March 2015 opinion (to which the ALJ assigned great weight on this point) was reinforced by Dr. Kleinerman's opinion (to which the ALJ also assigned great weight), noting only mild limitations in this area, and by plaintiff's All Med treating notes, showing that he had remained stable with medication. Id.
Finally, the ALJ did not err in his credibility determination. While an ALJ may not reject a claimant's statements about "the intensity and persistence of [his] pain" or about the effect of his symptoms on his ability to work "solely because the available objective medical evidence does not substantiate [his] statements," Valdez, 232 F.Supp.3d at 552 (quoting 20 C.F.R. §§ 404.1529(c), 416.929(c)), he may discredit the claimant's statements "after weighing objective medical evidence, the claimant's demeanor, and other indicia of credibility," id. (internal quotations and citations omitted), including significant inconsistencies in the claimant's presentation of his own symptoms or capabilities. See, e.g., Genier, 606 F.3d at 50 (ALJ was "required to consider all of the evidence of record," including the claimant's "testimony and other statements with respect to his daily activities").
When an ALJ rejects a claimant's testimony about his impairments as not credible, he must set forth the basis for that finding "with sufficient specificity to permit intelligible plenary review of the record." Valdez, 232 F.Supp.3d at 552 (quoting Williams, 859 F.2d at 260-61). If the ALJ complies with that requirement, his credibility determination "is generally entitled to deference on appeal." Id. at 553 (quoting Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013)). Accordingly, "[i]f the [Commissioner's] findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount a claimant's subjective complaints of pain." Id. (quoting Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)).
Here, the ALJ gave specific reasons for his credibility determination. In addition to noting that some of plaintiff's claims related to his impairments were inconsistent with the treatment record, the ALJ also noted plaintiff's own inconsistent statements about his functional abilities, including his statements, reports to physicians, and testimony that he walked significant distances and used no assistive devices for ambulation. (R. 27.) Having reviewed the record and noted these and other inconsistences in plaintiff's statements, I find no error in the ALJ's credibility analysis.
At step five, the ALJ relied on the testimony of the vocational expert to determine that the plaintiff could perform other work in the national economy considering his age, education, and work experience. At the hearing, the ALJ correctly asked the vocational expert to identify whether plaintiff could perform his past work, and then posed hypotheticals to the expert to identify jobs that plaintiff could perform. I do note that, in his written decision, the ALJ included the limitation that plaintiff could never climb ropes, though this was not included in his hypothetical to the vocational expert. (R. 24, 51.) I also note that the ALJ's written decision included the positions of production machine tender and clerical sorter in his vocational finding, rather than electrical accessory assembler and laundry worker, which are the positions that the vocational expert identified during the hearing. (R. 29, 52-53.) I agree with the Commissioner that these anomalies are harmless. None of the positions that the vocational expert (or the ALJ) identified require climbing ropes.
For the reasons set forth above, I respectfully recommend that the Commissioner's motion for judgment on the pleadings (Dkt. No. 19) be GRANTED. The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the plaintiff. Dated: New York, New York
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). See also Fed. R. Civ. P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. George B. Daniels at 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Daniels. Failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
