DEBRA FREEMAN, Magistrate Judge.
Plaintiff Luis Enrique Sanchez ("Plaintiff") seeks review of the final decision of defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration ("SSA," "Defendant" or the "Commissioner"), denying Plaintiff Social Security Disability Insurance ("SSDI") benefits and Supplemental Security Income ("SSI") under the Social Security Act (the "Act"), on the ground that, for the relevant period, Plaintiff's impairments did not constitute a disability for purposes of the Act. Currently before this Court for a report and recommendation are Plaintiff's motion, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings reversing the Commissioner's decision or, in the alternative, remanding the matter for a new hearing (Dkt. 12), and Defendant's cross-motion for judgment on the pleadings affirming the Commissioner's decision (Dkt. 14).
For the reasons set forth below, I respectfully recommend that Plaintiff's motion be denied, that Defendant's cross-motion be granted, and that the Commissioner's decision in this case be affirmed.
Plaintiff filed applications for SSDI and SSI benefits on July 9, 2013. (R. at 254-61, 262-70.) In both applications, Plaintiff alleged a disability onset date of December 31, 2012 based on physical and mental health issues, including hemiplegia (paralysis or weakness of one half of the body) and depression. (Id. at 254, 262, 286.)
Plaintiff has reported that his physical disabilities resulted from two motor vehicle accidents. (Id. at 302.) The initial accident occurred on January 4, 1997, in Puerto Rico, and was instigated by Plaintiff, when, as a pedestrian, he stepped in front of a car in an attempt to commit suicide. (Id. at 378-79.) Following that accident, Plaintiff was admitted to the emergency room of Puerto Rico Medical Center (id. at 373-77), where the medical personnel determined that he had a bi-frontal contusion and had fractured one of the vertebra in his spine (id. at 381, 384). The second accident occurred in 2011 or 2012, while Plaintiff was incarcerated and being transported from one correctional facility to another in a Department of Corrections bus. (Id. at 302, 583.
After Plaintiff's claims for benefits were initially denied on September 11, 2013 (id. at 122), Plaintiff requested a hearing before an administrative law judge ("ALJ") (id. at 128). On November 20, 2014, ALJ Elias Feuer held a hearing (the "Hearing") at which he heard testimony from both Plaintiff (represented by counsel, David E. Levine, Esq., and testifying with the aid of a Spanish interpreter) and Vocational Expert ("VE") Yaakov Taitz ("Taitz").
As Plaintiff alleges that his disability began on December 31, 2012, the relevant period under review for Plaintiff's SSDI benefits runs from that date through June 30, 2016, the last date that Plaintiff was insured. See Gonzalez ex rel. Guzman v. Secretary of U.S. Department of Health & Human Services, 360 F. App'x 240, 242 (2d Cir. 2010) (citing 42 U.S.C. §§ 423(a)(1)(A), (c); Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989)); see also 42 U.S.C. §§ 423(a)(1)(A), 423(c)(1); 20 C.F.R. §§ 404.130(b), 404.315(a).
Plaintiff is a citizen of the United States. (R. at 254.) He was born on April 17, 1969 and was 43 years old as of his alleged disability onset date. (Id.) Plaintiff was previously married, but the marriage ended by divorce on December 31, 1995. (Id. at 255.) As of the Hearing date, November 20, 2014, Plaintiff had a girlfriend and lived in a "three-quarter house"
Plaintiff was incarcerated on two separate occasions, with his most recent period of incarceration ending in 2011 or 2012. (See id. at 53-54, 584, 593; see also supra at n.2.) Plaintiff was sporadically engaged in full-time employment through 2012, as a painter, caulker, cleaner, maintenance worker, and/or construction worker. (Id. at 47-52.) With respect to his daily activities, Plaintiff reported, both in his submissions to the SSA, as well as to a consulting examiner, that he had the ability to do laundry, shop, manage his own funds, go to a recreational center to socialize, and take public transportation. (Id. at 295-99, 450-51.) Plaintiff also reported, however, that he generally stayed with his girlfriend at her house during the day, and had no contact with his son. (Id. at 85, 451.) Plaintiff further testified at the Hearing that he would usually rest at his girlfriend's home, getting up only to eat the food she cooked for him, and to go to the bathroom. (Id. at 85.)
Plaintiff was a patient at New Beginnings Community Counseling Center ("New Beginnings") from September 17, 2012
On October 23, 2012, Dr. Omar Jimenez, a psychiatrist at New Beginnings, conducted a psychiatric evaluation of Plaintiff. (Id. at 411-12.) Plaintiff reported that he felt depressed and slept poorly. (Id. at 411.) He denied hearing voices, or experiencing persecutorial, suicidal, or homicidal ideation. (Id.) Upon examination, Dr. Jimenez found Plaintiff to be oriented times three ("oriented as to who he is, where he is, and when it is"),
Dr. Jimenez continued to see Plaintiff until March 2013, as reflected in the doctor's progress notes dated December 31, 2012, January 25, 2013, and March 20, 2013. (Id. at 645-47.) Plaintiff consistently reported a depressed mood during his meetings with Dr. Jimenez, although he denied suicidal and homicidal ideation. (Id.) The dosage of the medications prescribed did not change during this time period. (Id.) Dr. Jimenez also diagnosed Plaintiff with bi-polar disorder during his January 2013 visit, and Plaintiff reported feeling anxious, as well as depressed, during his March 2013 appointment. (Id. at 646-47.) In December 2012 and March 2013, Dr. Jimenez assessed Plaintiff's condition as stable. (Id. at 645, 647.)
In April 2013, Nurse Practitioner Jean L. Painson ("Painson") became Plaintiff's primary treating source at New Beginnings. (Id. at 648). With few exceptions, Painson continued to see Plaintiff on a monthly basis through November 2014. (See id. at 648-67.) Plaintiff's progress notes from New Beginnings repeatedly report that Plaintiff's insight, judgment, and impulse control were intact. (Id. at 645-50, 652-60, 662-67.) Painson noted, however, that Plaintiff's major depressive disorder was characterized by irritability, crying spells, insomnia, anxiety, and depressed mood with a history of suicidal ideations. (Id. at 648.) Painson adjusted Plaintiff's medications and their dosage, adding, over time, Seroquel,
On June 21, 2013, Painson co-signed a letter written by Ruiz that discussed Plaintiff's impairments and treatment regimen. (Id. at 409.) Ruiz stated that Plaintiff had been diagnosed with depressive disorder NOS, antisocial personality disorder, asthma, epileptic attacks, diabetes, high cholesterol, and substance abuse in full remission. (Id.) She explained that Plaintiff had chronic anxiety, panic attacks, poor impulse control, social phobia, and claustrophobia, could behave in an aggressive manner, and was easily agitated. (Id.) The letter also listed Plaintiff's then-current list of medications. (Id.) Ruiz also noted that Plaintiff was having difficulty sitting for long hours in the F.E.G.S. Program. (Id.; see generally Background, infra, at Section B(3).)
On August 20, 2013, Ruiz authored a Treating Physician's Wellness Plan Report for Plaintiff. (Id. at 457-58.) She diagnosed Plaintiff with depressive disorder, antisocial personality disorder, polysubstance abuse in remission, claustrophobia, poor impulse control, insomnia, nightmares, violent dreams, poor memory, aggression, learning disabilities, crying spells, anxiety, and panic attacks. (Id. at 457.) The report noted that Plaintiff had been diagnosed with depressive disorder after a psychiatric evaluation completed on October 23, 2012. (Id.) Ruiz noted that Plaintiff was compliant with his medical program, as he attended scheduled appointments, took prescribed medication, and complied with other types of treatment. (Id.) She also reported that Plaintiff's clinical program involved both verbal therapy and medication therapy, noting that Plaintiff met weekly with a therapist, and took Seroquel, Remeron, Klonopin, and Celexa to manage his mental impairments. (Id.) The report stated that Plaintiff's mental conditions had not been stabilized or resolved by treatment, and explained that Plaintiff's "condition [was] guarded and [that Plaintiff would] continue on med[ications]." (Id. at 458.) Ruiz opined that Plaintiff was unable to work for at least 12 months, and that Plaintiff had a learning disability. (Id.)
On October 1, 2013, Dr. Henry McCurtis, another psychiatrist at New Beginnings, signed a medical source statement that was cosigned by Ruiz. (Id. at 460-64.) In that medical source statement, Dr. McCurtis reported that he had had contact with the Plaintiff since September 17, 2012. (Id. at 460.) In his multiaxial evaluation of Plaintiff, Dr. McCurtis opined that Plaintiff had major depressive order, NOS on Axis I, antisocial personality disorder on Axis II, epilepsy, diabetes, asthma, high cholesterol, arthritis, TBI (a traumatic brain injury),
Further, Dr. McCurtis opined that, as a result of his conditions, Plaintiff had experienced an "extreme loss" in his ability to accept instruction from, and work with supervisors, coworkers and peers, and to respond appropriately to routine work changes. (Id. at 463.) He also opined that Plaintiff had a "marked loss" in his ability to remember locations and work procedures, carry out very short, simple instructions, understand and remember detailed instructions, maintain attention and concentration for more than two hours, regularly attend and be punctual for work, have a normal work routine without supervision, deal with the stress of semi-skilled or skilled work, work in close proximity with others, make simple work-related decisions, complete a normal workday or workweek without interruption from his mental impairments, and perform at a consistent pace without rest periods of an unreasonable number or duration. (Id. at 462.) Dr. McCurtis also found that, while Plaintiff had no restriction in the activities of daily living, he had marked difficulties with social functioning; frequent deficiencies in concentration, persistence, or pace; and frequent episodes of deterioration or decompensation in work settings. (Id. at 463.)
On May 23, 2014, some months after he completed the medical source statement, Dr. McCurtis completed a psychiatric evaluation of Plaintiff that was cosigned by Painson. (Id. at 468-69.) During this evaluation, Plaintiff reported a history of suicide attempts, including the 1997 car accident in Puerto Rico where he "jumped in front of the car to end his life because his self-esteem was very low and he was tired of living." (Id. at 468.) Plaintiff also reported a history of drug abuse, including use of cannabis, cocaine, and heroine, starting at age 17. (Id.) Plaintiff stated that he had served four years in prison for armed robbery and six years in prison for drug sales and possession, and that he had been arrested approximately 15 times for a variety of offenses. (Id.) Plaintiff indicated that he began attending a court-mandated drug program in 2006 and that he graduated from the Narco Freedom drug rehabilitation program in 2012. (Id.)
Dr. McCurtis categorized Plaintiff's mood at the time as "depressed," and noted that Plaintiff reported hearing the voice of his deceased grandmother at night. (Id. at 469.) Dr. McCurtis also noted that Plaintiff was alert and oriented as to time, person, place, and situation, and that Plaintiff's thought processes appeared to be coherent, linear, and goal directed. (Id.) He noted that there was no evidence that Plaintiff continued to have suicidal or homicidal ideations, and stated that Plaintiff's judgment and insight remained fair to poor. (Id.) On Axis I, Dr. McCurtis diagnosed Plaintiff with major depressive disorder with psychotic features and polysubstance abuse in sustained remission. (Id.) On Axis II, he diagnosed Plaintiff with antisocial personality disorder; on Axis III he diagnosed Plaintiff with diabetes, epileptic attacks, hypertension, hypercholesterolemia, back pain, and asthma; and, on Axis IV, he noted Plaintiff's unemployment, limited education, housing situation, and financial status. (Id.)
Dr. McCurtis assessed Plaintiff's then current GAF score at 51, and stated that Plaintiff's GAF score for the prior year was 55. (Id.) He also listed Plaintiff's then current medication list, and indicated that Plaintiff intended to continue on this medication program and attend verbal therapy. (Id.)
During a mental status examination on June 26, 2013, Dr. Michael Hargrove, another New Beginnings psychiatrist, rated Plaintiff's concentration and cognition as "fair," his impulse control as "good," and his insight and judgment as "adequate." (Id. at 415-16.) Dr. Hargrove diagnosed Plaintiff with Bipolar II disorder, trichotillomania (hair pulling disorder),
In challenging the ALJ's decision, Plaintiff only briefly discusses the impact of his physical impairments (see Pl. Mem., at 20-23), mentioning his left shoulder and lower back pain, but focusing principally on his use of a cane to ambulate (see id.). The medical evidence related to the physical impairments discussed in Plaintiff's motion is summarized below.
Between at least June 2012 and November 2014, Plaintiff routinely went to the Neighborhood and Family Health Center for evaluation and management of his physical conditions. (See R. at 583, 633.) During an appointment on June 15, 2012,
On April 16, 2013, Plaintiff requested a re-referral for pain management and physical therapy for his lower back pain (id. at 554), suggesting such a referral had previously been made. The progress notes from that date indicate that Plaintiff had not seen a pain management provider or physical therapist in two months. (Id.) On July 22, 2013, Plaintiff was diagnosed with degenerative disc disease of the C5-C7 vertebrae, chronic cervical lumbar pain, and bilateral shoulder pain. (Id. at 557.) On October 2, 2013, Plaintiff requested a prescription for a cane. (Id. at 553.) The progress notes for that date state: "[Plaintiff] ambulates with ease, but states that balance is difficult later in the day." (Id.)
Treatment records through late 2014 continue to record Plaintiff's complaints of pain. On October 15, 2014, Plaintiff reported that he had had shoulder pain for the past three years and was unable to raise his arm all the way up. (Id. at 532). The treatment provider classified his shoulder pain as "chronic." (Id.) On November 17, 2014, Plaintiff was referred to a hospital for pain management and physical therapy because of his "long-standing history" of shoulder pain (b/L), wrist pain,
Based on the Record, Plaintiff was seen at Bronx Lebanon Hospital Center ("Bronx Lebanon") on three occasions in 2013. During a March 14, 2013 visit, Plaintiff reported left shoulder pain and left-sided radicular low back pain and that his shoulder pain worsened with overhead activity. (Id. at 422.) Plaintiff rated his pain as eight out of 10 on a 10-point scale, and noted that prolonged standing, walking, and bending exacerbated his symptoms. (Id.) Upon examination by Dr. Salvador Portugal, Plaintiff was found to be "alert and oriented" and to have a "normal gait and balance." (Id. at 423.) Dr. Portugal stated that Plaintiff had a full range of motion in his lumbar spine with pain at the end ranges of motion, and a more limited range of motion in his left shoulder with pain above 90 degrees. (Id.) Dr. Portugal noted that a test bilaterally for lumbar radiculopathy was negative, that Plaintiff had normal sensation in his extremities and normal muscle strength throughout, and that he had tenderness of the left subacromial region. (Id.) He also summarized the results of an MRI of Plaintiff's lumbar spine conducted on January 23, 2013, stating that the test revealed "[m]ild concentric disk bulges" predominantly at Plaintiff's L4-L5 and L5-S1 vertebra, mild to moderate facet arthropathy of the lower lumbar disk space levels, and patent foramina. (See id. at 420, 423.) He concluded that these spinal abnormalities caused Plaintiff's pain, and thought it likely that Plaintiff had left shoulder impingement syndrome, rotator cuff tendonitis, and lumbar facet-mediated pain. (Id. at 423.)
Dr. Joshua Auerbach evaluated Plaintiff on April 29, 2013. (Id. at 421.) Dr. Auerbach concluded that Plaintiff had a normal gait and was neurologically intact except for a positive Hawkins's test and Neer's sign on the left side.
On July 19, 2013, Dr. Vikas K. Agrawal reported that Plaintiff had "chronic low back pain secondary to facet disease." (Id. at 420.) He further noted that Plaintiff had stopped taking Elavil,
Progress notes from SIRI Medical Association/Catskill Physical Medicine ("SIRI/Catskill") reflect that Plaintiff was treated there between March 14, 2013 and March 5, 2014 (see id. at 485-530), including by Dr. Portugal, whom Plaintiff had also seen at Bronx Lebanon, as set out above.
On March 18, 2013, Dr. Portugal took a diagnostic ultrasound of Plaintiff's left shoulder. (Id. at 395.) He reported that the ultrasound revealed mild degenerative changes in Plaintiff's acromioclavicular joint
On December 9, 2013, Plaintiff started a course of physical therapy at SIRI/Catskill to help manage his left shoulder pain, and he attended several sessions through January 29, 2014. (Id. at 514-27.) At a follow-up visit with Dr. Portugal on March 5, 2014, Plaintiff denied relief with physical therapy, and he reported worsening left shoulder and back pain, rating his discomfort a 9/10. (Id. at 528.) Plaintiff was not taking any pain medication at the time. (Id.) Dr. Portugal administered a left shoulder injection — after which Plaintiff reported 100% relief — and then scheduled Plaintiff for lower back injections. (Id. at 530.)
On August 12, 2013, Plaintiff was evaluated at F.E.G.S. WeCare ("F.E.G.S."). (Id. at 436.) Plaintiff was interviewed by a bi-lingual case manager during this visit, and reported that he had a history of substance abuse, but that he had been sober for the past two years. (Id. at 437.) At that time, Plaintiff was attending an outpatient drug treatment program at Narco Freedom, three times per week. (Id.) When the case manager inquired about Plaintiff's wellbeing, Plaintiff stated that he was "okay," but that he hated being around people. (Id. at 439.) Plaintiff also indicated that he needed no travel accommodations and that he had arrived to his appointment by bus. (Id. at 440.) Plaintiff also "informed [the] case manager that [his] goal [was] to obtain SSI/SSD." (Id.)
F.E.G.S. created a wellness plan for Plaintiff, with the goal of stabilizing or resolving his depressive disorder and psychological impairments by November 9, 2013. (Id. at 439.) The F.E.G.S. case manager assigned to Plaintiff summarized his previously reported impairments and discussed his upcoming visits with health care providers at New Beginnings and the Neighborhood and Family Health Center. (Id. at 440.) As part of his F.E.G.S. wellness plan, Plaintiff was instructed to go to all of his scheduled appointments with medical providers, and to "adhere to [his] physician-recommended treatment regimen." (Id. at 439.)
In assessing Plaintiff's ability to gain employment, the case manager determined that Plaintiff had exertional limitations and joint pains, and could only perform jobs that involved limited, if any, climbing and that were housed in an accessible facility that had ramps, accessible bathrooms, automatic doors, and elevators. (Id. at 442.) In the section for brief comments supporting Plaintiff's employment disposition, the case manager noted that Plaintiff "seem[ed] clinically stable." (Id.)
On August 22, 2013, SSA consulting psychologist Dr. Melissa Antiaris conducted a psychiatric evaluation of Plaintiff. (Id. at 448-52.) Dr. Antiaris found it "important to note" that Plaintiff had difficulty recounting his symptoms and was a "very poor historian." (Id. at 449.) Upon examination, Dr. Antiaris noted that Plaintiff appeared dressed appropriately, and that his posture and motor behavior were both normal. (Id. at 450.) She found his thought processes to be coherent and goal directed, his mood euthymic, and his senses clear, and she further found that he was oriented times three. (Id.) Dr. Antiaris also reported that Plaintiff's concentration was intact and that he was able to complete simple calculations, although he made mistakes in completing a serial threes calculation task.
Dr. Antiaris also described Plaintiff's daily activities, noting that he was able to dress, bathe, and groom himself; that he usually went out to eat; and that he was able to do his own laundry, shop, and manage his funds independently. (Id.) She reported that Plaintiff was able to take public transportation, and that, although he stated that he had no friends, he went to a local recreational center every day to be social. (Id. at 450-51.) Plaintiff stated that he had a good relationship with his girlfriend and no relationship with his son. (Id. at 451.)
In her medical source statement, Dr. Antiaris opined that there were no limitations on Plaintiff's ability to follow and understand simple directions and instructions, or to perform simple tasks independently. (Id.) She noted that Plaintiff was mildly limited in his ability to maintain attention, concentration, and a regular schedule, and to learn new tasks. (Id.) She found that Plaintiff would be moderately limited in his ability to perform complex tasks independently and would need supervision. (Id.) She also found Plaintiff to be moderately limited in his ability to make appropriate decisions, relate adequately to others, and deal with stress. (Id.)
On Axis I, Dr. Antiaris diagnosed Plaintiff with depressive disorder, NOS, impulse control disorder, NOS, and polysubstance dependence in remission. (Id.) On Axis II, she diagnosed Plaintiff with personality disorder with antisocial features, and on Axis III, she diagnosed him with seizures, asthma, heart disease, and back pain. (Id.)
On September 6, 2013, non-examining consultant Dr. T. Harding rendered an opinion regarding Plaintiff's eligibility for SSDI and SSI benefits, based on his review of the medical evidence of record. (Id. at 98-119.) Dr. Harding found that Plaintiff had mild restrictions in the activities of daily living, and moderate difficulties in maintaining social functioning and concentration, persistence, or pace. (Id. at 99.) He did not identify any repeated episodes of decompensation of extended duration (id.), and ultimately concluded that Plaintiff could perform light work and was not disabled (id. at 105-06).
As noted above, Plaintiff testified at the Hearing on November 20, 2014, with the aid of a Spanish interpreter, and, based on some of the exchanges between Plaintiff and the ALJ, it appears that Plaintiff may not have understood all of the ALJ's questioning in English. (See, e.g., id. at 46 (interpreter noting Plaintiff's apparent lack of understanding).) To the extent the transcript is clear, Plaintiff's testimony may be summarized as follows:
Plaintiff testified that Dr. McCurtis had been his "personal doctor" for almost three years. (R. at 56.) Although Plaintiff's attorney noted that Dr. McCurtis was a psychiatrist and not a general care practitioner (see id.), Plaintiff nonetheless testified that he had regularly scheduled appointments with Dr. McCurtis every two weeks, and that Dr. McCurtis had given him medication for a migraine, asthma, and high blood pressure (id. at 56-57). When asked who was currently treating him for his mental health problems, Plaintiff stated that he was receiving treatment at New Beginnings from "Penso Lutheran, Luther."
Plaintiff reported that the medication he had been prescribed for pain was not "doing [him] any good," and he stated that he was in "so much pain" at the Hearing. (Id. at 60.) He testified that he had received injections to help with his pain in both shoulders, his back, and his spinal cord. (Id. at 68.) Plaintiff also testified that he used a cane all of the time, and needed it for both standing and walking. (Id. at 69.) He stated that a doctor at the Neighborhood and Family Health Center had prescribed it for him, four to five months prior to the Hearing date. (Id. at 71.) Plaintiff estimated that he could sit for 45 minutes to one hour before his back began to hurt, and that he could stand, as long as he had his cane to hold him up. (Id. at 69.) Plaintiff testified that he had been told that he could only lift five pounds of weight, and further testified that he could barely hold a cup of coffee. (Id. at 69-70.) He stated that he took Percocet to manage extreme pain, and that he sometimes needed to take two pills. (Id. at 87.) He estimated that he took 19 to 20 Percocet pills per month for pain management. (Id.)
In terms of his daily activities, Plaintiff testified that he spent most of the day at his girlfriend's house, from 9:00 a.m. to approximately 4:00 or 5:00 p.m. (Id. at 85.) As noted above, Plaintiff testified that, when he went to his girlfriend's house, he "basically . . . just [lay] in bed," and that, when his girlfriend cooked, she brought him food, and he then ate it and lay back down, just getting up to use the bathroom. (Id.)
On April 24, 2017, Plaintiff, through counsel, filed a motion for judgment on the pleadings in his favor. (Dkt. 12.) In his motion, Plaintiff argues that the decision of the Commissioner should be reversed and/or that the case should be remanded for further administrative proceedings. (Memorandum of Law in Support of Plaintiff's Motion for Judgment on the Pleadings, dated Apr. 24, 2017 ("Pl. Mem.") (Dkt. 13).) In support, Plaintiff focuses mainly on his mental conditions, discussing his physical conditions only for the limited purpose of arguing that the "combined effect" of his impairments was sufficiently severe to form a basis for SSDI and SSI eligibility. (Id., at 12, 20.) The main thrust of Plaintiff's argument is that the ALJ failed to comply with the so-called "treating physician rule" when he accorded more weight to the opinion of the consulting psychologist, Dr. Antiaris, than to the opinion evidence from Plaintiff's medical team at New Beginnings, specifically, the opinion of Dr. McCurtis, a psychiatrist, as supported by findings from nurse practitioner Painson and Plaintiff's therapist Ruiz. (Id., at 15-17.) With regard to Painson and Ruiz, Plaintiff further asserts that their opinions should have been given greater weight, even though they are not "acceptable medical sources," because they worked in tandem with Dr. McCurtis and saw Plaintiff regularly. (Id., at 17.)
On June 22, 2017, Defendant filed an opposition to Plaintiff's motion and a cross-motion for judgment on the pleadings in favor of the Commissioner. (Dkt. 14.) Defendant takes the position that the ALJ properly weighed the opinion evidence of the different medical professionals, and that his determinations were proper and supported by substantial evidence. (See Memorandum of Law in Support of Defendant's Motion for Judgment on the Pleadings and in Opposition to Plaintiff's Motion for Judgment on the Pleadings, dated Jun. 22, 2017 ("Def. Mem.") (Dkt. 15).)
Judgment on the pleadings under Rule 12(c) is appropriate where "the movant establishes `that no material issue of fact remains to be resolved,'" Guzman v. Astrue, No. 09cv3928 (PKC), 2011 WL 666194, at *6 (S.D.N.Y. Feb. 4, 2011) (quoting Juster Assocs. v. City of Rutland, 901 F.2d 266, 269 (2d Cir. 1990)), and a judgment on the merits can be made "`merely by considering the contents of the pleadings,'" id. (quoting Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988)).
Judicial review of a decision of the Commissioner is limited. The Commissioner's decision is final, provided that the correct legal standards are applied and findings of fact are supported by substantial evidence. 42 U.S.C. § 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). "[W]here an error of law has been made that might have affected the disposition of the case, [a] 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." Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (citation omitted)). Thus, the first step is to ensure that the Commissioner applied the correct legal standards. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
The next step is to determine whether the Commissioner's decision is supported by substantial evidence. See Tejada, 167 F.3d at 773. Substantial evidence "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) (internal citation and quotation marks omitted). In making this determination, a court must consider the underlying record. The reviewing court does not, however, decide de novo whether a claimant is disabled. See Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002) ("Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, we will not substitute our judgment for that of the Commissioner."); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997). Thus, if the correct legal principles have been applied, this Court must uphold the Commissioner's decision upon a finding of substantial evidence, even where contrary evidence exists. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) ("Where there is substantial evidence to support either position, the determination is one to be made by the factfinder."); see also DeChirico v. Callahan, 134 F.3d 1177, 1182-83 (2d Cir. 1998) (affirming decision where substantial evidence supported both sides).
To be entitled to disability benefits under the Act, a claimant must establish his or her "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). An individual is considered to be under a disability only if the individual's physical or mental impairments are of such severity that he or she is not only unable to do his or her previous work, but also cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In evaluating a disability claim, an ALJ must follow the five-step procedure set out in the regulations governing the administration of Social Security benefits. See 20 C.F.R. §§ 404.1520, 416.920; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). Throughout the inquiry, the ALJ must consider four primary sources of evidence: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (citations omitted).
The first step of the inquiry requires the ALJ to determine whether the claimant is engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If not, at the second step, the ALJ determines whether the claimant has a "severe" impairment or combination of impairments that significantly limits his or her physical or mental ability to do basic work activities. Id. §§ 404.1520(a)(4)(ii), (c); 416.920(a)(4)(ii), (c). If the claimant does suffer from such an impairment, then the third step requires the ALJ to determine whether this impairment meets or equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If it does, then the claimant is presumed to be disabled "without considering [the claimant's] age, education, and work experience." Id. §§ 404.1520(d), 416.920(d).
Where the plaintiff alleges a mental impairment, steps two and three require the ALJ to apply a "special technique," outlined in 20 C.F.R. §§ 404.1520a and 416.920a, to determine the severity of the claimant's impairment at step two, and to determine whether the impairment satisfies Social Security regulations at step three.
If the claimant's impairment does not meet or equal a listed impairment, then the ALJ must determine, based on all the relevant evidence in the record, the claimant's residual functional capacity ("RFC"), or ability to perform physical and mental work activities on a sustained basis. Id. §§ 404.1545, 416.945. The ALJ then proceeds to the fourth step of the inquiry, which requires the ALJ to determine whether the claimant's RFC allows the claimant to perform his or her "past relevant work." Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Finally, if the claimant is unable to perform his or her past relevant work, the fifth step requires the ALJ to determine whether, in light of the claimant's RFC, age, education, and work experience, the claimant is capable of performing "any other work" that exists in the national economy. Id. §§ 404.1520(a)(4)(v), (g); 416.920(a)(4)(v), (g).
On the first four steps of the five-step evaluation, the claimant generally bears the burden of establishing facts to support his or her claim. See Berry, 675 F.2d at 467 (citation omitted). At the fifth step, the burden shifts to the Commissioner to "show that there is work in the national economy that the claimant can do." Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). The Commissioner must establish that the alternative work "exists in significant numbers" in the national economy and that the claimant can perform this work, given his or her RFC and vocational factors. 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2).
Where the claimant only suffers from exertional impairments, the Commissioner can satisfy this burden by referring to the Medical-Vocational Guidelines, set out in 20 C.F.R. Pt. 404, Subpt. P, App'x 2 (the "Grids"). Where, however, the claimant suffers from nonexertional impairments (such as mental impairments) that "`significantly limit the range of work permitted by his [or her] exertional limitations,'" the ALJ is required to consult with a vocational expert," rather than rely exclusively on these published Grids. Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986) (citations omitted)). "A nonexertional impairment `significantly limit[s]' a claimant's range of work when it causes an `additional loss of work capacity beyond a negligible one or, in other words, one that so narrows a claimant's possible range of work as to deprive him of a meaningful employment opportunity.'" Id., at 411 (quoting Bapp, 802 F.2d at 605-06).
Under the so-called "treating physician rule,"
Where an ALJ determines that a treating physician's opinion is not entitled to "controlling weight," the ALJ must "give good reasons" for the weight accorded to the opinion. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Failure to "give good reasons" is grounds for remand. Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) ("We do not hesitate to remand when the Commissioner has not provided `good reasons' for the weight given to a treating physician's opinion. . . ."). Moreover, in determining the weight to be accorded to an opinion of a treating physician, the ALJ "must apply a series of factors," Aronis v. Barnhart, No. 02cv7660 (SAS), 2003 WL 22953167, at *5 (S.D.N.Y. Dec. 15, 2003) (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)
Even where a treating physician's opinion is not entitled to "controlling weight," it is generally entitled to "more weight" than the opinions of non-treating and non-examining sources. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Social Security Ruling 96-2p (S.S.A. July 2, 1996) ("In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight."); see also Gonzalez v. Apfel, 113 F.Supp.2d 580, 589 (S.D.N.Y. 2000). A consultative physician's opinion, by contrast, is generally entitled to "little weight." Giddings v. Astrue, 333 F. App'x 649, 652 (2d Cir. 2009) (internal quotation marks and citation omitted). This is because consultative examinations "are often brief, are generally performed without benefit or review of the claimant's medical history, and, at best, only give a glimpse of the claimant on a single day." Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 55 (2d Cir. 1992) (internal quotation marks and citations omitted).
On March 10, 2015, ALJ Feuer issued his decision, finding that Plaintiff was not under a disability for purposes of the Act and did not qualify for benefits under Title II or Title XVI. (R. at 34.) In rendering his decision, the ALJ applied the five-step sequential evaluation.
At Step One, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since December 31, 2012, the alleged onset date. (Id. at 27.)
At Step Two, the ALJ found, as noted above, that Plaintiff had the following "severe" impairments: shoulder degeneration, lumbar spine degeneration, and depression. (Id.)
At Step Three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of the following listings: Listing 1.02 ("Major Dysfunction of a Joint"), Listing 1.04 ("Disorders of the Spine"), or 12.04 ("Affective Disorders"). (Id. at 28.) At this step, the ALJ found that "[n]o treating, examining, or non-examining medical source ha[d] mentioned findings or rendered an opinion that the [Plaintiff's] impairments, singly or in combination, medically equal[ed] the criteria" for Listings 1.02 and 1.04. (Id. at 28.) The ALJ cited almost exclusively to the opinion of the consultative medical examiner in concluding that Plaintiff's mental impairment did not meet or equal the criteria for listing 12.04. (Id.)
The ALJ found that Plaintiff had the RFC to perform light work with certain exertional limitations, specifically, that Plaintiff needed to avoid reaching overhead with his left arm, and could only occasionally climb ramps and stairs. (Id. at 29.) In addition, the ALJ found that Plaintiff had the following non-exertional limitations: he was limited to performing simple, routine, and repetitive tasks; he could not work at production rate; he could not work on an assembly line or in tandem with co-workers; and he could have only limited to occasional contact with co-workers, supervisors, and the general public. (Id.)
In considering the evidence of record, the ALJ summarized Plaintiff's testimony at the Hearing and found that, while "[Plaintiff's] medically determinable impairments could reasonably be expected to cause the alleged symptoms," his statements concerning the "effects" of those symptoms were "not entirely credible." (Id. at 29-30.) This conclusion about Plaintiff's credibility was based on both the Record as a whole, and the fact that Plaintiff had told his F.E.G.S. case manager that he was attempting to obtain SSDI and SSI, a statement which, according to the ALJ, "significantly detract[ed] from the credibility of [Plaintiff's] allegations."
The ALJ noted that some of the medical evidence did not fully support Plaintiff's testimony. (Id. at 30.) The ALJ acknowledged a March 14, 2013 progress note stating that Plaintiff had rated his left shoulder pain as eight out of 10 on a scale of one through 10, worsening with physical activity, and that there were positive impingement tests. (Id.) He also acknowledged that a January 23, 2013 MRI of Plaintiff's lumbar spine showed mild disc bulges at L4-L5 and L5-S1, with mild to moderate facet arthropathy; that Plaintiff had been diagnosed with left shoulder impingement syndrome and rotator cuff tendonitis; and that a March 18, 2013 ultrasound of Plaintiff's left shoulder had shown tenderness over the acriomioclavicular joint with mild degenerative changes and bursitis. (Id. at 30-31.) He further noted, though, that, on April 22, 2014, Plaintiff rated his back pain as only two out of 10, and his shoulder pain as seven out of 10. (Id. at 31.)
In making his RFC assessment, ALJ accorded "significant weight" to the opinion of consultative examiner Dr. Antiaris, as he deemed that opinion to be consistent with the overall medical record. (Id. at 31.)
In comparison, the ALJ largely discounted the opinion evidence of medical providers from New Beginnings. He assigned "little weight" to the October 1, 2013 medical source statement of psychiatrist Dr. McCurtis, finding that Dr. McCurtis's opinions regarding the severity of Plaintiff's depressive symptoms and functioning were unsupported by the medical record. (Id. at 31-32.) "Rather," the ALJ found that the medical evidence showed "a stable patient with limited or absent clinically reported depression." (Id. at 31.) The ALJ assigned "no weight" to Ruiz's August 20, 2013 report because he determined that she was not an acceptable medical source. (Id.)
At Step Four, the ALJ concluded that Plaintiff's RFC precluded him from performing his past relevant work as a waxer, painter, or helper. (Id. at 32-33.) At Step Five, and aided by the testimony of the VE, the ALJ determined that the Plaintiff could perform unskilled light work with certain qualifications, and that a significant number of such jobs existed in the national economy. (Id. at 33-34.)
In his motion, Plaintiff primarily contends that the ALJ failed to recognize the severity and disabling effects of Plaintiff's mental impairments, and that this failure was particularly manifest in the way in which the ALJ weighed the opinion evidence from Plaintiff's mental health care providers. (See generally Pl. Mem.) In this regard, Plaintiff argues that the opinion of his psychiatrist, Dr. McCurtis — an opinion to which the ALJ assigned only "little weight" (R. at 31-32) — should have been given controlling weight as, according to Plaintiff, it was consistent with the underlying medical record and supported by substantial evidence, including both the notes of other providers from New Beginnings and the reports of the SSA consultants (see Pl. Mem., at 14-20). Plaintiff also references his physical impairments, making the secondary argument that, in combination with his mental impairments, his physical restrictions (specifically including his use of a cane) should have compelled a finding that he was disabled. (See id., at 20-22.) This Court addresses Plaintiff's arguments below.
Under the treating physician rule, as set out above, an ALJ must give controlling weight to the opinion of a claimant's treating physician, as long as the opinion is well supported by the medical evidence and is not inconsistent with other medical findings of record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). If the ALJ does not assign controlling weight to a treater's medical opinion, then the ALJ must also provide "good reasons" justifying the weight assigned. Id.; see also Halloran, 362 F.3d at 33. In this instance, this Court finds that it was not error for the ALJ to assign less than controlling weight to the opinion of Plaintiff's psychiatrist, Dr. McCurtis.
Plaintiff argues that, "where mental health treatment is at issue, the treating physician rule takes on added significance" because "[a] mental health patient may have good days and bad days," and "may respond to different stressors that are not always active." (Pl. Mem., at 15.) Thus, as Plaintiff notes, "the longitudinal relationship between a mental health patient and his 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." (Id. (citations omitted).) Indeed, the very reason that the opinion of a treater is to be accorded extra weight under the treating physician rule is "because [of] the continuity of treatment he provides and the doctor/patient relationship he develops." Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983). This Court does not disagree that a "continuity of treatment" and "doctor/patient relationship" are especially important factors to consider in the context of mental health care. Here, however, and as a threshold matter, while there is no question that Plaintiff had a continuing, mental health care treatment relationship with New Beginnings, it is not equally evident that he had such a relationship with Dr. McCurtis.
While Plaintiff testified at the Hearing that he had seen Dr. McCurtis regularly for two to three years (R. at 56), the medical records do not support this. As the ALJ observed (see id. at 63-64), the Record contains no treatment notes from Dr. McCurtis underlying his October 1, 2013 medical source statement (the opinion evidence at issue (see id. at 460-64)); in fact, the only document in the New Beginnings records that appears to relate to an examination by Dr. McCurtis is a single psychiatric evaluation form, co-signed by Painson and dated May 23, 2014 — more than seven months after Dr. McCurtis provided his October 2013 opinion. (Id. at 482-83.) The Record does, however, contain monthly treatment notes from New Beginnings for a period of over two years (October 2012 through November 2014), with no meaningful gaps
Further, even though Plaintiff testified that Dr. McCurtis was his "primary doctor," who had prescribed him medication for migraines, high blood pressure, asthma, and cholesterol (id. at 56-57), Plaintiff's self-reported medication history contradicts this testimony (see id. at 339 (Plaintiff reporting that a Dr. Dunner had prescribed him medication for asthma and cholesterol, and that Painson had prescribed Plaintiff medication for anxiety)). There is also ample evidence in the medical records to show who prescribed Plaintiff medication; for the two-year period from November 2012 to November 2014, during the time Plaintiff was receiving treatment at New Beginnings, the prescriptions issued to him were generally written by Painson, and Dr. McCurtis's name was noticeably absent from the prescription records. (See id. at 340-47, 352-53, 355-61, 417-18.)
Finally, as noted above, it seems likely that, possibly because of difficulties with translation, Plaintiff did not fully understand all of the questions posed to him at the Hearing, especially with respect to identifying his health care providers at New Beginnings and the different roles they played in his care. (See id. at 56 (Plaintiff's counsel expressing the view that Plaintiff did not understand questioning about Dr. McCurtis); see also id. at 56-60 (Plaintiff providing seemingly inconsistent and somewhat confusing testimony about his providers).) In this regard, this Court notes that, before the ALJ mentioned Dr. McCurtis's name to Plaintiff, Plaintiff testified that he was receiving treatment at New Beginnings from Painson (identified by Plaintiff as "Painin" (see supra, at n.33)) and a therapist named "Catherine," who, according to Plaintiff, had replaced Ruiz (referred to by Plaintiff as "Mercedes") about two months before the Hearing. (See R. at 16, 57-58.) Also, when asked who first gave him medication at New Beginnings, Plaintiff identified Dr. Jimenez (spelled phonetically in the Hearing transcript as Dr. "Hamanis") (id. at 58)), and then testified that Dr. Jimenez was replaced by Painson, whom Plaintiff then saw once a month (id.). In light of this, and based on the treatment records, this Court concludes that Plaintiff did not actually see Dr. McCurtis on a regular basis.
While, intuitively, it might seem appropriate to accord "treating physician" status to any doctor who submits a medical source statement from a facility where the claimant has undergone a course of treatment, Dr. McCurtis's two documented meetings with Plaintiff do not constitute an "ongoing treatment relationship," and cannot substantiate Plaintiff's claim to the contrary. See 20 C.F.R. § 404.1527(a)(2), 416.927(a)(2). On this point, this Court notes that, in Petrie v. Astrue, 412 Fed. App'x 401 (2d Cir. 2011), the Second Circuit found that an ALJ did not err in refusing to give controlling weight to the medical opinions of two physicians (both apparently mental health professionals) in a common facility — one of whom had personally examined the plaintiff only once, and the other of whom "had only four treatment notes bearing his signature, two of which were merely co-signatures on reports by other providers." Id. at 405. While the plaintiff contended that this was an improper ground to discount the physicians' opinions, as "all of [the plaintiff's] mental health providers worked at the same institution and thus had access to [the plaintiff's] records and to one another," id., the court reiterated its reasoning in Mongeur that "the opinion of a treating physician is given extra weight because of his unique position resulting from the `continuity of treatment he provides and the doctor/patient relationship he develops.'" Id. (quoting Mongeur, 722 F.2d at 1039 n.2 (emphasis added in Petrie).) "By contrast," the court noted its finding in Mongeur that "a physician who only examined a claimant `once or twice' did not see that claimant regularly and did not develop a physician/patient relationship with the claimant, . . . even though other practitioners in the same facility had also submitted medical opinions on behalf of the claimant." Id. The court held that "such a physician's medical opinion was `not entitled to the extra weight of that of a `treating physician.'" Id.; see also Wilson v. Colvin, No. 6:16-cv-06509-MAT, 2017 WL 2821560, at *4-5 (W.D.N.Y. June 30, 2017) (finding that doctor who examined claimant on one occasion did not count as a "treating physician" because he did not have a longitudinal treating relationship with claimant).
Thus, the fact that Plaintiff was, as reflected by the progress notes from New Beginnings, a regular patient at the facility where Dr. McCurtis worked (R. 645-67), does not transform Dr. McCurtis's opinion into one that was necessarily entitled to more weight than those of non-treating medical sources.
Even assuming that Dr. McCurtis qualified as a "treating physician" for purposes of the treating physician rule, the ALJ reasonably found that Dr. McCurtis's opinion was not supported by substantial evidence in the Record.
Plaintiff emphasizes specific aspects of Mr. McCurtis's opinion that, in Plaintiff's view, should have been given greater consideration by the ALJ. For example, Plaintiff repeatedly highlights that Dr. McCurtis stated in his opinion that Plaintiff had a "home attendant" who assisted him with "household chores" and "app[ointmen]ts" (R. at 461; Pl. Mem., at 4, 16, 17, 23), something the ALJ "failed to mention" (Pl. Mem., at 17). Yet there is not a single other reference in the Record — either in treatment notes, in evaluations by other professionals, or in statements by Plaintiff himself — that corroborate Dr. McCurtis's assertion. Indeed, when asked about his daily activities at the Hearing, Plaintiff never mentioned having a home health attendant, and instead testified that he spent most of the day at his girlfriend's house, lying in bed and eating the meals that she cooked for him. (R. at 85.) The consultative examiner, Dr. Antiaris, further reported that Plaintiff was able to dress, bathe, and groom himself, generally ate out, and could manage his laundry, shopping, and funds independently. (Id. at 450.) Dr. Antiaris also noted that Plaintiff went to a recreational center every day to socialize, and that he "g[ot] along well with his girlfriend." (Id. at 450-51.) Plaintiff also reported that he traveled by bus to his F.E.G.S. appointment, with no mention of needing assistance to do so. (See id. at 440.) On the Record as a whole, Dr. McCurtis's reference to a home attendant appears to be completely unsupported.
For a second example, Plaintiff stresses that, in his opinion, Dr. McCurtis listed side effects of Plaintiff's medications — including dizziness, drowsiness, fatigue, lethargy and sometimes aggression (see id. at 461) — and argues that the ALJ should have expressly taken those side effects into account (see Pl. Mem., at 19-20). Defendant points out, however, that "Plaintiff routinely denied [experiencing] side effects from his medication." (Def. Mem., at 24 (citing R. at 648-50, 652-60, 662, 665-67).) In fact, Plaintiff did not report, either at the Hearing or as recorded within the medical records, that he experienced any of the symptoms identified by Dr. McCurtis. (See, e.g., R. at 662 (progress note from Painson dated June 20, 2014, noting that Plaintiff "denie[d] any untoward effects from the medications," and stating that Plaintiff should continue to take Seroquel, Klonopin, Celexa, and trazodone, and should start taking Atarax.).)
Defendant similarly argues that Dr. McCurtis's assessment of Plaintiff as having numerous severe mental impairments (many of which Plaintiff reiterates in his motion) was wholly or largely inconsistent with the underlying medical record. Defendant notes, for example, that Dr. McCurtis's findings of Plaintiff's supposed suicidal ideation, poor impulse control, and perceptual disturbances (see id. at 460-61) were in direct tension with several treatment records of Dr. Jimenez and Painson, at New Beginnings (see Def. Mem., at 23 (citing R. at 411, 645-50, 652-60, and 662-67)). Defendant further notes that Dr. McCurtis "checked off appetite disturbance . . . when the treatment records state the contrary" (Id. (comparing R. at 460 with id. at 658-60, 662, 663, and 665); that Dr. McCurtis also checked off "manic syndrome, and obsessions or compulsions" . . . when no such findings were reported in the contemporaneous treatment notes (id.); and that, "while Dr. McCurtis stated that Plaintiff had problems with authority figures and could become violent, . . . there is not a single documented instance in the record demonstrating that Plaintiff was violent or unable to deal appropriately with others" (id.). Finally, Defendant aptly notes that, while Dr. McCurtis indicated that Plaintiff's GAF score for both 2012 and 2013 was 50 (indicating serious symptoms), the contemporaneous treatment notes reflect higher GAF scores within the range of 51-60 (indicating only moderate symptoms). (See Def. Mem., at 24; see also supra at nn.9, 10.)
Although certain portions of Dr. McCurtis's opinion may have been supported by certain of Plaintiff's treatment records, the significant disparities between much of the opinion and the majority of those underlying records justified the ALJ's decision to discount Dr. McCurtis's opinion as generally "unsupported by the record" (R. at 31) and "inconsistent with the treatment records" (id. at 32).
Plaintiff argues, in particular, that the August 20, 2013 "Treating Physician Wellness Plan Report," prepared by Ruiz, supported Dr. McCurtis's opinion. (Pl. Mem., at 17; see also R. at 457-58.) Relatedly, Plaintiff argues that the ALJ erred by assigning "no weight" to that report (Pl. Mem., at 17), a determination made by the ALJ on the stated grounds that Ruiz, as a therapist, was not an acceptable medical source under SSA regulations and that the report was "inconsistent with the record as a whole and with the opinion of [consulting examiner] Dr. Antiaris" (R. at 31). This Court acknowledges that Ruiz's report does state that Plaintiff had certain mental impairments, including claustrophobia, poor impulse control, aggression, and panic attacks (id. at 457), which were also identified by Dr. McCurtis (see id. at 461). This Court does not agree, however, with Plaintiff's suggestion that Ruiz's report, standing alone, constituted substantial evidence supporting Dr. McCurtis's opinion, or that the ALJ erred by declining to assign any weight to this particular report.
Plaintiff contends that the ALJ failed to recognize that the report was co-signed by Painson (Pl. Mem., at 17), and that, under a pertinent SSA "Policy Interpretation Ruling," nurse practitioners and therapists are both defined as sources whose opinions "are important and should be evaluated on key issues . . . along with the other relevant evidence in the file" (id., at 17-18 (quoting SSR 06-03p
Here, this Court first notes that, while Ruiz apparently provided Painson's name on the form report where it called for the name of the patient's physician, it does not appear that Painson actually co-authored the report (see R. at 458), and the ALJ thus appropriately attributed this report to Ruiz. Second, regardless of the agency's policy interpretation, the ALJ was correct that therapists are not considered "acceptable medical sources" under the applicable regulations; nor, for that matter, are nurse practitioners. See 20 C.F.R. § 404.1527(a)(2) ("Treating source means your own acceptable medical source . . . who has, or has had, an ongoing treatment relationship with you."); 20 C.F.R. § 404.1513(a) (listing five categories of acceptable medical sources, from which nurse practitioners and therapists are excluded); 20 C.F.R. § 404.1513(d)(1) (listing nurse practitioners and therapists as "other sources"). Accordingly, under the treating physician rule, Ruiz's report, as Defendant states, was "not entitled to any special deference" (Def. Mem., at 19), and the ALJ was not required to accord it any particular weight. Rorick v. Colvin, 220 F.Supp.3d 230, 241 (N.D.N.Y. 2016) (finding that the ALJ did not err in assigning "no weight" to the assessment of plaintiff's therapist, because the therapist did not "constitute a treating medical source under the definition provided in the [SSA] regulation. . . . [and] it was within the hearing officer's discretion to determine the appropriate weight to accord [the therapist's] opinion based on all the evidence before him" (internal quotation marks and citations omitted)).
Moreover, even if consistent, in certain respects, with Dr. McCurtis's opinion, the Ruiz report is much more cursory than that opinion; it is silent as to many of the impairments listed by Dr. McCurtis; and it does not even purport to assess the severity of the impairments that it does identify. As such, the Ruiz report cannot alone be said to constitute substantial evidence supporting Dr. McCurtis's opinion.
Plaintiff also contends that Dr. McCurtis's opinion was supported by the opinions of both SSA consultants, Dr. Antiaris (the examining consultant to whose opinion the ALJ assigned "significant weight") and Dr. Harding (the non-examining consultant, whose opinion the ALJ did not discuss). What Plaintiff misses, though, is that, while both of the consultants did opine that Plaintiff had certain of the same or similar mental impairments as those assessed by Dr. McCurtis, their views as to the "mild" or "moderate" severity of those impairments (see R. at 451 (Dr. Antiaris); id. at 103-04 (Dr. Harding)) did not support Dr. McCurtis's expressed view that many of Plaintiff's impairments were "marked" or "extreme."
Even as summarized by Plaintiff, Dr. Antiaris reported that Plaintiff had moderate limitations in his ability to make appropriate decisions, relate adequately with others, and deal with stress. (See Pl. Mem., at 18 (citing R. at 448-52).) In comparison, Dr. McCurtis stated that Plaintiff had a marked loss of his ability to make simple work-related decisions, work in coordination with or proximity to others without being unduly distracted, and deal with the stress of semi-skilled and skilled work. (R. at 462.) Thus, although the two opinions do not precisely align, it is clear that they differ in assessing the severity of Plaintiff's limitations. Likewise, although Plaintiff argues that Dr. Harding's opinion regarding Plaintiff's difficulties in, inter alia, completing a normal workday without interruptions from psychologically based symptoms, performing at a consistent pace without breaks, setting realistic goals, and making independent plans "directly contradict[ed]" the ALJ's finding that certain of the limitations assessed by Dr. McCurtis were unsupported by the Record (Pl. Mem., at 18-19), Dr. Harding — much like Dr. Antiaris — found that Plaintiff had no greater than "moderate" limitations in the identified areas (see R. at 103-04). Thus, neither of the consultants' opinions fully supported Dr. McCurtis's assessments.
For all of the above reasons, this Court does not find that the ALJ violated the treating physician rule in this case. Further, to the extent the Record presents conflicting evidence as to the nature and extent of Plaintiff's mental impairments, this Court may not substitute its own view for how the opinion evidence should have been weighed for the view of the ALJ. See, e.g., Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) ("it is up to the agency, and not this court, to weigh the conflicting evidence in the record); 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."). In this case, substantial evidence supported the ALJ's weighing of the medical evidence with respect to Plaintiff's mental impairments, such that, absent any other error, the ALJ's decision should stand.
In his opinion, the ALJ found that Plaintiff had the RFC to perform light work, except that he would need to avoid overhead reaching with the left arm; could only occasionally climb ramps and stairs; was limited to the performance of simple, routine, and repetitive tasks; could not work at production rate, on an assembly line, or in tandem with co-workers; and needed to be limited to occasional contact with co-workers, supervisors, and the general public. (R. at 29.) Despite the fact that the ALJ's assessment of Plaintiff's RFC thus accommodated both physical and mental impairments, Plaintiff lastly contends that the ALJ failed to consider the combined effect of these impairments in his RFC analysis, specifically by failing to incorporate Plaintiff's use of a cane into the hypothetical questions posed to the VE. (Pl. Mem., at 20-21.) Based on the totality of the Record, this Court finds that the ALJ's omission of a cane from the posed hypotheticals did not constitute legal error.
Although Plaintiff testified at the Hearing that he used a cane "[a]ll of the time" for walking and that it helped him "hold [him]self up" while standing (R. at 69), Defendant argues persuasively that the medical records do not support that Plaintiff actually needed the cane (see Def. Mem., at 18). A review of the relevant medical records reveals that, when Plaintiff requested a prescription for a cane on October 2, 2013, a nurse practitioner from Neighborhood and Family Health Center noted that Plaintiff "ambulate[d] with ease," even though Plaintiff apparently reported that his balance became "difficult later in [the] day." (R. at 553). Subsequent treatment notes from Neighborhood and Family Health Center contain no clinical findings to support the necessity of the cane. Progress notes dated November 18, 2013 and February 19, 2014 merely state that Plaintiff ambulated with the aid of a cane (see id. at 547, 549), while a May 14, 2014 progress note reflects that, despite this, Plaintiff was "able to stand [without] assist[ance]" (id. at 543). Further, progress notes from SIRI/Catskill dated August 20, 2013 — approximately two months before Plaintiff requested the prescription for a cane — and December 4 and 9, 2013 — approximately two months after Plaintiff requested a cane — each indicate that Plaintiff had a "[n]ormal gait and balance." (Id. at 508, 511-13.) Plaintiff was also found to have a normal gait and balance at a subsequent visit to SIRI/Catskill on March 5, 2014. (Id. at 528.) Indeed, Defendant notes that the SIRI/Catskill records are "replete" with such findings. (Def. Mem., at 18 (also citing R. at 391, 393, 396, 398, 401, 404, and 407).)
In his decision, the ALJ expressly considered Plaintiff's testimony regarding his use of a cane (R. at 30) and decided to omit this information from the RFC, apparently based on his assessment of Plaintiff's credibility (see id.). Given the extent to which the medical evidence undercuts Plaintiff's credibility regarding his need for a cane, this Court cannot find, as Plaintiff argues, that the ALJ improperly excluded the cane from the hypothetical posed to the VE.
For all of the foregoing reasons, I find that the ALJ's decision in this case was supported by substantial evidence. I therefore respectfully recommend that Plaintiff's motion for judgment on the pleadings (Dkt. 12) be denied, that the Commissioner's cross-motion for judgment on the pleadings (Dkt. 14) be granted, and that the Complaint be dismissed.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe, United States Courthouse, 40 Foley Square, Room 2204, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, Room 1660, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Gardephe. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); JUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd, 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
