BARBARA MOSES, Magistrate Judge.
Plaintiff Alexandria Noelle D'Amato brings this action pursuant to §§ 205(g) and 1631(c)(3) of the Social Security Act (the Act), 42 U.S.C. §§ 405(g), 1383(c)(3), seeking judicial review of a final determination of the Commissioner of Social Security (Commissioner) denying her applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). Now before me for report and recommendation are the parties' cross-motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. Nos. 20, 23.) Because I conclude that the Administrative Law Judge (ALJ) violated the treating physician rule when he failed to provide good reasons for rejecting the opinions of plaintiff's treating neurologist concerning her functional limitations, I respectfully recommend that plaintiff's motion be granted, that the Commissioner's motion be denied, and that this case be remanded for further proceedings.
Plaintiff filed applications for DIB and SSI on November 1, 2011, alleging disability since August 24, 2011. See Social Security Administration (SSA) Administrative Record (Dkt. No. 15) (hereinafter "R. ___.") at 13. The SSA denied those applications on February 22, 2012. (R. 13, 101.) Plaintiff timely requested a hearing before an ALJ, but withdrew that application on April 22, 2013, resulting in an order of dismissal dated April 24, 2013. (R. 101.)
On February 2 and March 19, 2015, plaintiff again filed applications for DIB and SSI, alleging disability since August 24, 2011, due to Reflex Sympathetic Dystrophy (RSD) in her right foot,
In a written decision dated September 26, 2017 (Decision), ALJ McCormack dismissed plaintiff's claims as to the period August 24, 2011-February 22, 2012 under the doctrine of res judicata, concluding that "the issue of disability" for that period had "been addressed" by the SSA's February 22, 2012 denial of benefits. (R. 13.) As to the period after February 23, 2012, the ALJ determined that plaintiff was not disabled within the meaning of the Act. (R. 13-23.)
On November 21, 2017, plaintiff requested Appeals Council review of the Decision. (R. 227-28.) The Appeals Council denied plaintiff's request on June 8, 2018 (R. 1), making the ALJ's determination final.
Plaintiff was born on November 1, 1982. (R. 63, 229.) In 2000, she was incarcerated for four years for robbery. (R. 1095.) However, she completed her GED that year and later completed 1.5 years of college-level courses. (R. 1092.) In 2004 and 2005, she worked as a server. (R. 278.) In October of 2006, she was involved in a motor vehicle accident which resulted in fractures to her hip, pelvis, and back, as well as lacerations to her liver and spleen. (R. 41.) Shortly thereafter, plaintiff underwent reconstructive surgery on her pelvis. (R. 41, 384, 732.)
In April 2008, plaintiff resumed work as a server, first at a restaurant called Tony Boffa's (from April 2008 to April 2009), and next at Applebee's and TGI Fridays (from July 2009 to April 2010). (R. 48, 278.) Plaintiff has stated at various times that she stopped working due to "not enough hours," "severe pain," "RSD fell," "too few hours," or because "[t]hey suspected me of theft." (R. 49, 270, 789, 795, 812.)
In February and November 2008, plaintiff was charged with driving while intoxicated. (R. 52-53, 1095.) Those two charges ultimately resulted in a sentence of five years of probation and a suspended license. (R. 1095.)
In August 2011, plaintiff fell down a set of stairs in her apartment, resulting in the RSD condition in her right foot. (R. 44, 56.)
In or around 2012, after her fall, plaintiff "develop[ed] a problem with pain pills" and began using heroin. (R. 42, 47.) The same year, plaintiff violated the terms of her probation, and, as a result, was again incarcerated, from August 2012 to August 2014. (R. 74, 581, 796, 1095.) After being released, she continued using heroin for another two years. (R. 47.) On April 25, 2016, she was admitted to the Lexington Center for Recovery (R. 1089-1108), where she reported a twenty-one year history (i.e., since she was thirteen) of "illicit substance use," including heroin, cocaine, cannabis, alcohol, and "oxy/perc." (R. 1095.) However, she testified before ALJ McCormack that she had "been clean," meaning that she had not used heroin, since June 10, 2016 (R. 42), a fact corroborated by progress notes from the Lexington Center. (R. 1097-99.)
According to a Function Report that plaintiff completed on April 16, 2015, she has difficulty with several daily activities, including putting on socks and shoes, standing in the shower, preparing food, and cleaning herself after using the toilet. (R. 291-92.) She wrote that she prepares microwaveable food daily, but can no longer "prepare elaborate dinners." (R. 292-93.) She reported that she cannot do any household chores without help, and does not shop. (R. 293-94.) She wrote that she only goes outside for appointments, because she needs assistance going up and down stairs, cannot walk far without having to stop and rest, and does not have a driver's license. (R. 293.) She explained that she cannot drive because "I have 2 DWIs & I have P.T.S.D." from her 2006 car accident. (R. 294.)
Plaintiff wrote that her typical day consists of waking up, taking her pain medications, waiting "until they work" to get up, but "basically lay[ing] in bed all day because I can't do too much of anything else." (R. 291.) She listed as hobbies "reading and watching TV." (R. 294.)
Turning to her functional limitations, plaintiff reported that she "can't stand for long periods of time," "can't sit for long period of time," and "can't lift or push anything heavy." (R. 293.) She specified that she cannot lift more than "a few pounds," cannot stand for more than fifteen minutes, cannot walk for more than fifteen minutes without stopping to rest, and cannot kneel or squat. (R. 295-97.) She reported that she uses a cane and a brace (R. 296), and is "constantly tripping" due to the RSD in her right foot. (R. 292.) She also specified that she "can't sit for more than a half of an hour because it hurts too much." (R. 296.)
Plaintiff reported that she has no problems paying attention, can follow spoken and written instructions, has no problem getting along with bosses, teachers, police, landlords, or other people in authority, and has no trouble remembering things. (R. 297-98.) However, she wrote that stress or changes in her schedule make her nervous, and that her anxiety is triggered by having "to go somewhere in a car" and by "actually riding in a car." (R. 298-99.) She reported that she has panic attacks, "usually daily," and that they last "sometimes minutes sometimes hours [and] sometimes days" (R. 300), during which she is "basically unable to do anything." (Id.) She wrote that her anxiety makes it "next to impossible" to leave her house to socialize. (R. 295.)
The administrative record contains documents dating from 2006 through 2017, including a number of medical records that pre-date both plaintiff's alleged onset date (August 24, 2011) and the start of the date range considered by the ALJ (February 23, 2012). I discuss those records only to the extent they are relevant to plaintiff's current disability claims.
On or about October 15, 2006, when she was 23 years old, plaintiff was involved in a motor vehicle accident resulting in a grade III liver laceration, a grade I splenic laceration, a right ankle fracture, and a left crescent pelvic fracture. (R. 388.) On October 25, 2006, plaintiff underwent reconstructive surgery on her pelvis. (R. 408-10.)
From July 2009 to December 2011, plaintiff received pain treatment and medication (including oxycodone and Flexeril) at the Middletown Community Health Center. (R. 413-53.)
Plaintiff visited pain management physician Syed Asim Husain, D.O., for treatment of pain in her back and lower right extremity on eight occasions between November 10, 2011, and May 24, 2012. (R. 467-75, 477-78, 508-15, 518-20.) On November 10, 2011, plaintiff reported that she "fell down stairs on 8/2011," that "[s]ince then she has back pain going down the legs," and that she rated the pain "9/10 in intensity." (R. 473.) She said that oxycodone and Percocet were providing "good pain relief," though her pain was "increased with prolonged activity" and "worse with pressure." (R. 473-74.)
On examination, plaintiff's muscle strength was 5/5 except for in her right lower extremity, where it was 0/5 (ankle dorsiflexion) and 3/5 (ankle plantar flexion). (R. 474.) Based on his examination and review of plaintiff's medical records, Dr. Husain assessed chronic lumbosacral radiculopathy and prescribed an ankle-foot orthosis (AFO) for plaintiff's RSD, as well as physical therapy, an epidural steroid injection, and MS Contin and oxycodone for her pain. (R. 473-75.)
On December 8, 2011, and February 1, March 1, March 29, and April 26, 2012, plaintiff reported some improvement from her epidural injection and some relief from her pain medications. (R. 467, 470, 511, 513-15, 518-20.) On May 24, 2012, however, Dr. Husain noted that plaintiff had tested positive for THC (cannabis), wrote that she "exhibit[ed] high risk behavior," and recommended she be discharged from pain management. (R. 508-10.)
Plaintiff saw neurologist Dr. Kaiyu Ma, M.D., Ph.D., on six occasions between October 2011 and July 2012, and on three occasions in 2015.
On October 31, 2011, Dr. Ma examined plaintiff and reviewed her medical history. (R. 540-42.) Plaintiff reported that since falling in August 2011, she had "trouble to move her right leg and right foot." (R. 540.) She reported that she was taking Neurontin for the pain. (Id.)
On November 8, 2011, Dr. Ma performed a paraspinal EMG of plaintiff. (R. 565-67.) The results were "abnormal": the EMG revealed "evidence of severe right sensorimotor axonal sciatic nerve neuropathy about the knee." (R. 567.) While the EMG revealed "no evidence of lumbar radiculopathy, neuropathy, [or] myopathy," the "radiculopathy could not be totally ruled out." (Id.) After an examination on the same day, Dr. Ma prescribed Lyrica and Percocet. (R. 743-45.)
Plaintiff saw Dr. Ma again on November 30, 2011, as well as on February 1 and March 5, 2012, with generally consistent results. (R. 464-65, 505-07, 516-17, 524-25.) On July 19, 2012 — after plaintiff's last visit with Dr. Husain — plaintiff's pain was severe (at a "pain score" of 9/10), and her list of medications reflected that she was taking Lyrica, Motrin, and sulindac, and using Voltaren gel and a Lidoderm patch, but that her prescriptions for MS Contin and oxycodone had been stopped. (R. 505-07.)
On January 29, 2015, after a gap of more than two years, plaintiff returned to Dr. Ma. (R. 498-500.)
On April 30, 2015, plaintiff reported that she could not acquire Lyrica due to her "insurance condition," but that another doctor, pain management specialist Ernesto Lopez, M.D., had prescribed her oxycodone. (R. 622.)
On October 27, 2015, plaintiff visited Dr. Ma again. (R. 613-15.) Plaintiff still complained of "weakness and pain of the right leg," with "no significant change." (R. 613.) Her pain was at 7/10. (Id.) Plaintiff continued to have strength of 5/5 in all limbs "except right ankle dorsiflexion (0/5) platter flexion (0/5) adduction (1/5) and abduction (1/5)," and she remained "unable to tandem, tiptoe, and heel walk due to right foot weakness." (R. 614.) Dr. Ma assessed "[c]omplex regional pain syndrome I of the right lower limb." (Id.)
On March 9 and April 7, 2017, plaintiff saw physician Alexander Schwartz, M.D., for kidney stones and flank pain. (R. 994-96, 1005-07.) Dr. Schwartz's treatment notes reflect that she was taking ketorolac and tramadol for pain. (R. 1007.)
On February 17, 2015, plaintiff saw physiatrist Neal Dunkelman, M.D., with complaints of low back pain at a level of 7.5/10. (R. 577-79.) Plaintiff told Dr. Dunkelman that her pain affected her eating, bathing, using the toilet, dressing, and getting up from bed or a chair. (R. 578.) On examination, plaintiff had decreased lumbar flexion and extension, her gait was antalgic, and her right foot was sensitive with a decreased skin temperature. (R. 578-79.) Dr. Dunkelman diagnosed hip injury, chronic pain syndrome, and RSD of the lower limb, and noted that plaintiff had "chronic, intractable pain." (R. 579.) He recommended tramadol and physical and/or aquatic therapy. (R. 579.) On March 24, 2015, Dr. Dunkelman examined plaintiff again, with the same results. (R. 574-76.)
December 26, 2006, X-rays of plaintiff's pelvis revealed "a healing pelvic fracture with intact hardware in the left sacroiliac joint." (R. 360, 372.) July 8, 2009 X-rays of plaintiff's left pelvis and hip revealed surgical hardware "present on both sides of the left sacral iliac joint" and no other abnormalities. (R. 454.)
An October 5, 2011 X-ray of plaintiff's lumbosacral spine revealed L4-L5 retrolisthesis measuring 3 millimeters and a loss of disc space height at L5-S1, but no acute fracture or dislocation. (R. 555.)
A November 14, 2011 MRI of plaintiff's right femur revealed "[m]oderate edema throughout the hamstring muscles compatible for neuropathic or perhaps posttraumatic change," but "no muscle atrophy." (R. 781.) Plaintiff's sciatic nerve was "without compression" and her osseous structures were intact. (Id.)
April 10, 2015 X-rays of plaintiff's hip and pelvis revealed postoperative changes with hardware affixing plaintiff's prior fractures, but no acute fracture or dislocation. (R. 1049-52.) An April 11, 2015 MRI of plaintiff's left hip revealed "[m]ild fraying of the anterior superior acetabular labrum without discrete tear," small left hip joint effusion, and "[m]ild edema in the greater trochanteric bursa." (R. 588.)
An April 11, 2015 MRI of plaintiff's lumbar spine revealed "large central disc protrusion causing moderate central canal stenosis," with "impingement of the bilateral descending L5 nerve roots, right greater than left," but "no neural foraminal narrowing." (R. 589.)
From April 2015 to June 2016, and from January 2017 to March 2017, plaintiff visited Cornerstone Family Health Care for weekly therapy with clinical social worker Emily Silver, LCSW, and monthly office appointments with psychiatric nurse practitioner Hugh McKenzie, PNP. (R. 879-960.)
On April 16, 2015, plaintiff began treatment with LCSW Silver. (R. 879.) Plaintiff reported suffering from anxiety and panic attacks since her car accident in 2006, and stated that her "[a]nxiety makes it very difficult" for her to ride in cars. (R. 879-80.) She complained of "excessive worrying, anticipating the worst, startling easily, unable to relax," "sleep disturbances," and "fear of traffic." (R. 882.) She stated that her panic attacks involved "palpitations, sweating, trembling, shortness of breath, loss of control, nausea/vomiting, chest pain, [and] fear of dying," and occur "about 1-2/week." (Id.)
On examination, plaintiff's level of consciousness, appearance, and manner were all normal, as were her speech, thought processes, and thought content. (R. 881-82.) Her mood ("anxious, sad") and affect ("sad, tearful") were appropriate for the situation. (R. 881.) Her immediate, recent, and remote memory were intact. (R. 882.) Plaintiff told LCSW Silver that she "babysits nieces and nephews." (R. 880.) LCSW Silver performed a Beck Depression Inventory, yielding a result that plaintiff was "Not Clinically Depressed." (R. 882-84.) LCSW Silver diagnosed PTSD and anxiety disorder. (R. 881.)
On April 25, 2015, plaintiff began treatment with PNP McKenzie. (R. 886.) Plaintiff told PNP McKenzie that she was depressed most of the day, and that she had difficulty concentrating, low self-esteem, difficulty failing asleep, and racing thoughts. (R. 889.) She stated that she suffered from "excessive worrying, crying easily," and "fear of traffic." (R. 890.) PNP McKenzie conducted a Beck Depression Inventory, a Columbia Depression Scale, and a BH Anxiety Screening. (R. 891-94.) He diagnosed depression and PTSD, and prescribed prazosin, Neurontin, and Paxil. (R. 897-98.)
Over the next two years, PNP McKenzie altered plaintiff's mental health drug regimen, at various points prescribing Seroquel (R. 909), Klonopin (R. 913), methadone (R. 941), and buspirone. (R. 946.)
On March 15, 2017, plaintiff saw PNP McKenzie for the last time in the record. (R. 953-57.) Plaintiff reported a depressed mood, anxiety, poor sleep at night, low self-esteem, and difficulty concentrating. (R. 955.) However, she presented as "alert and oriented × 3," her appearance and manner were appropriate, and her thought processes and content were normal. (R. 954-55.) She told PNP McKenzie that her mental health issues made it "[s]omewhat difficult" for her to do her work, take care of things at home, and get along with other people. (R. 954.)
Between April 20, 2016 and at least August 11, 2017, plaintiff received substance abuse treatment, including methadone, at the Lexington Center for Recovery. (R. 1084-1108.) Plaintiff reported that before starting methadone, "using is all that I did, it's all I thought about." (R. 1094.) A progress note dated April 11, 2017 (at which point plaintiff had been in the program for a full year), reflected that plaintiff went to the clinic on a daily basis to pick up methadone, "as per her request" (R. 1097), and that she had remained abstinent from "illicit" substances, as evidenced by "consistently negative tox reports." (Id.)
On January 5, 2012, Dr. Ma completed a New York State Office of Temporary and Disability Assistance Division of Disability Determination form about plaintiff. (R. 456-63.) Dr. Ma wrote that she had treated plaintiff once a month since October 31, 2011 (R. 456), and diagnosed RSD and right sciatica nerve neuropathy. (R. 456, 458.) She reported that plaintiff had a significant abnormality in gait and required an assistive device to walk. (R. 459.) She then assessed plaintiff's functional limitations, opining that plaintiff could occasionally lift and carry up to 10 pounds, stand and/or walk less than 2 hours per day, and sit less than 6 hours per day, "due to severe pain." (Id.) She also opined that plaintiff was limited in her abilities to push and/or pull. (R. 460.)
On March 6, May 14, and May 31, 2012, Dr. Ma wrote letters confirming that plaintiff was under her medical care, that she suffered from RSD and right sciatic nerve neuropathy, and that "[d]ue to her chronic conditions," plaintiff was "permanently unable to return to work." (R. 661, 668, 684.)
On April 5, 2012, Dr. Ma completed a Physical Assessment for Determination of Employability form (Physical Employability Assessment). (R. 811-12.) Dr. Ma diagnosed RSD, lumbosacral radiculitis, and right sciatic neuropathy, each with an onset date of August 2011. (R. 811.) Under "Estimated Functional Limitations," Dr. Ma reported that plaintiff could occasionally lift less than 10 pounds and could stand and/or walk less than 2 hours per day. (R. 812.)
On January 29, 2015, Dr. Ma completed another Physical Employability Assessment. (R. 982-83.) She concluded that plaintiff could occasionally lift less than 10 pounds, could stand and/or walk less than 2 hours per day, and could sit for less than six hours per day. (R. 983.)
On February 23, 2015, Dr. Ma wrote a letter "to whom it may concern," confirming that plaintiff was under her medical care and had a diagnosis of "RSD, w/weakness, foot drop and severe pain of [right] leg," as well as "calf dystrophy," and opining that plaintiff "is unable to walk for long periods of time." (R. 628.)
On April 30, 2015, Dr. Ma completed a third Physical Employability Assessment. (R. 980-81.) She concluded that plaintiff could occasionally lift less than 10 pounds, could stand and/or walk less than 2 hours per day, could not push or pull, and could sit for less than six hours per day. (R. 981.) On November 4, 2015 and March 23, 2016, Dr. Ma completed two more Physical Employability Assessments (R. 976-77, 978-79), with the same conclusions as in her April 30, 2015 assessment. (R. 977, 979.)
On May 13, 2015, plaintiff met with internist Peter Graham, M.D., for a consultative internal medicine evaluation. (R. 584-87.) Plaintiff told Dr. Graham that the pain in her lower back was "intermittent, usually brought on with heavy work, prolonged walking, or lifting, or with damp weather," and was "rated a 9/10." (R. 584.) Dr. Graham noted the MRI from April 2015 showing "some disc protrusion of L4-L5 with central canal stenosis with mass effect on the LS nerve roots, the right more than the left." (Id.) He wrote that plaintiff was taking oxycodone and Flexeril for her back pain ("which help somewhat"), and had previously undergone physical therapy ("which has not helped"). (Id.) Dr. Graham also noted that plaintiff was taking Neurontin for her right leg weakness and RSD. (Id.)
Plaintiff told Dr. Graham that she was not able to cook, clean, do laundry, or shop, that she was able to shower herself only "with difficulty due to weakness," and that she needed help dressing and bathing. (R. 585.) Dr. Graham wrote that plaintiff walked with a "severe limp," was "not able to walk on heels or on toes," and was "not able to perform a full squat." (Id.) He also wrote that plaintiff needed "a little help" getting on and off the exam table. (Id.) He concluded that the brace plaintiff used to assist her walking was medically necessary. (Id.)
The results of plaintiff's musculoskeletal and neurologic exams were largely normal, except that plaintiff had "pain on flexion/extension of the lumbar spine" and she was "not able to dorsiflex the right ankle." (R. 586.) Dr. Graham observed "significant muscle atrophy" in plaintiff's right lower extremity. (R. 587.) Dr. Graham diagnosed back pain, right leg weakness, and asthma, and opined:
(Id.)
On May 13, 2015, plaintiff met with psychologist Leslie Helprin, Ph.D., for a consultative psychiatric evaluation. (R. 580-83.) Plaintiff reported that she was "unable to work now due to RSD and broken pelvis." (R. 580.) Plaintiff also reported "difficulty falling asleep"; nightmares which awakened her; dysphoric moods and crying spells; and anxiety, with "episodes of heart palpitations, sweaty palms, feeling shaky, and a fear of dying occurring in cars[.]" (Id.)
Dr. Helprin wrote that plaintiff had never been hospitalized or received outpatient treatment for her mental conditions, but that she "began attending Newburgh Behavioral about two months ago where she currently sees her psychiatrist once monthly and her therapist once weekly." (R. 580.) Plaintiff disclosed that she had used alcohol and marijuana in the past, that she had received drug and/or alcohol treatment at Catholic Charities in Newburgh in 2008, and that she began further treatment at "Restorative Management in Newburgh one and a half months ago mandated by parole." (R. 581.)
On examination, plaintiff "was cooperative and her manner of relating, social skills, and overall presentation was adequate." (R. 581.) Her appearance, speech, and thought processes were all normal, though her affect was "[a]nxious with some crying." (Id.) Her attention and concentration were intact, and her insight and judgment were good. (R. 582.) Her "recent and remote memory skills" were "mildly impaired." (Id.) She "recalled 3 of 3 objects immediately and 2 after a five-minute time delay," and she "repeated 7 digits forward and 4 digits backwards." (Id.)
Plaintiff reported that she was able to dress, shower, and groom herself, but needed help dressing and showering "due to her physical problems as she cannot stand long due to pain." (R. 582.) She told Dr. Helprin that she was unable to cook, clean, do laundry, or shop for food. (Id.) She also reported that she knew how to drive but was afraid to, and that she did not use public transportation, "stating she is afraid of other people driving her." (Id.)
Dr. Helprin diagnosed PTSD and polysubstance abuse, "in full remission." (R. 583.) In her medical source statement, Dr. Helprin opined:
(R. 582-83.) Dr. Helprin recommended continued psychiatric and psychological treatment, along with substance abuse treatment, and suggested that plaintiff "undergo medical evaluation to determine if her medical conditions preclude her from working" over the long term. (R. 583.)
On June 30, 2015, state agency medical consultant L. Hoffman, Ph.D., analyzed plaintiff's file for the Disability Determination Explanation issued in connection with the SSA's initial denial of benefits. (R. 81-82, 91, 96-97, 592.) Based on a review of the file and the results of Dr. Helprin's examination, Dr. Hoffman assessed that plaintiff had mild restrictions in her activities of daily living, mild difficulties in maintaining social functioning, and mild difficulties in maintaining concentration, persistence, or pace. (R. 82.) Dr. Hoffman also opined that plaintiff had no repeated episodes of decompensation. (Id.) Dr. Hoffman concluded that Dr. Helprin's opinions that plaintiff had marked limitations in her abilities to maintain a schedule and deal with stress due to anxiety were "more restrictive than demonstrated [by plaintiff's] adaptive functioning," including activities of daily living "not significantly limited by psychiatric symptoms" and "[r]esulting functional limitations" which were "not severe in magnitude." (Id.)
On October 22, 2015, PNP McKenzie completed a Psychiatric Assessment for Determination of Employability form (Psychiatric Employability Assessment) about plaintiff. (R. 1069-70.) PNP McKenzie diagnosed PTSD, anxiety, and mood [illegible]. (R. 1069.) He opined that plaintiff's psychiatric conditions would frequently interfere with her activities of daily living, would on occasion result in decompensation or "[m]edical hospitalizations or emergency room visits," but would never result in the "[l]oss of job or failure to complete an education or training programs." (R. 1070.) He opined that plaintiff was very limited in her ability to use public transportation, and moderately limited in her abilities to maintain attention and concentration, interact appropriately with others, maintain socially appropriate behavior, and engage in low stress, simple tasks. (Id.) He wrote that plaintiff was "not able to work at present" due to "lots of anxiety and PTSD symptoms," and, asked when plaintiff might return to work, concluded that plaintiff "may not be able to work." (Id.)
On October 25, 2016, LCSW Silver completed a Psychiatric Employability Assessment. (R. 1064-65.) LCSW Silver concluded that that plaintiff's psychiatric conditions may "on occasion" cause decompensation or the "[l]oss of job or failure to complete an education or training program," and would frequently interfere with activities of daily living. (R. 1065.) LCSW Silver also concluded that plaintiff had moderate limitations in her abilities to understand and remember complex instructions, maintain attention and concentration, maintain socially appropriate behavior, and engage in low stress, simple tasks, and that she was very limited in her ability to use public transportation. (Id.) LCSW Silver opined that plaintiff was not capable of working, but that she would "re-evaluate" that opinion in 6 months. (Id.)
On January 20, 2017, PNP McKenzie completed another Psychiatric Employability Assessment. (R. 1066-67.) He reached generally the same conclusions as in his October 2015 assessment, except that he found that plaintiff's psychiatric conditions would only interfere with her activities of daily living on occasion; that plaintiff was only moderately limited in her ability to use public transportation; and that plaintiff was not limited in her ability to engage in low stress, simple tasks. (Compare R. 1067 with R. 1070.) Asked when plaintiff might return to work, PNP McKenzie wrote "6 months — 12 months." (R. 1067.)
On August 17, 2017, PNP McKenzie and LCSW Silver together completed a Medical Impairment Questionnaire form (RFC & Listings) about plaintiff. (R. 1109-17.) Notwithstanding the progress evident in PNP McKenzie's previous assessments, they reported that plaintiff's condition had "not improved in over two years of treatment in our practice." (R. 1109.) They identified a number of areas in which they deemed plaintiff incapable of meeting the competitive standards necessary to do unskilled work, including: maintaining attention for two hour segments; maintaining regular attendance and being punctual; completing a normal workday and workweek without interruptions from psychologically based symptoms; performing at a consistent pace without an unreasonable number and length of rest periods; getting along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes; responding appropriately to changes in a routine work setting; and dealing with normal work stress. (R. 1111.) They also opined that, as to the tasks of traveling in unfamiliar places or using public transportation, plaintiff had "[n]o useful ability to function." (R. 1112.)
PNP McKenzie and LCSW Silver also opined that plaintiff's psychiatric condition exacerbated her "experience of pain or any other physical symptom." (R. 1112.) They concluded that plaintiff had extreme limitations in activities of daily living and maintaining social functioning, marked limitations in maintaining concentration, persistence, or pace, and one or two episodes of decompensation within a twelve-month period, "each of at least two weeks duration." (R. 1113.) They did not, however, further describe those episodes. They also concluded that plaintiff had "[a]n anxiety related disorder and complete inability to function independently outside the area of one's home" (id.); would miss more than four days of work per month as a result of her impairments or treatment (R. 1114); and that her impairment(s) had "lasted or can [] be expected to last at least twelve months." (Id.)
On August 21, 2017, plaintiff appeared, with counsel, for a hearing before ALJ McCormack. (R. 29.) The ALJ presided by video from White Plains, and plaintiff appeared in Goshen, New York. (R. 29, 31.) Also present by telephone was vocational expert (VE) Louis P. Szollosy. (R. 31.)
After brief testimony about her job history as a server (R. 38-39), plaintiff described her physical injuries and symptoms. She stated that her 2006 motor vehicle accident "shattered" her pelvis. (R. 41.) She testified that she continues to have back pain "every minute of the day," and that "[i]t hurts to sit, it hurts to stand, it hurts to walk. It hurts to lie down. You know I, I'm really at a loss for what to do." (R. 41-42.) Plaintiff testified that she takes 120 milligrams of methadone every day, which has the "dual" purpose of combatting her pain and controlling her prior addiction to heroin, which she had not used since June 10, 2016. (R. 42.) She stated that she had a few ("three or four") injections in her back, but that they did not help her pain. (R. 42-43.) She also stated that one of her doctors had recommended a spinal cord stimulator, but that she didn't "want any more surgery." (R. 43.)
Plaintiff then testified about her RSD. She explained: "I can't move my foot up and down like a normal person — it drops. . . . [B]ecause of the nerve damage it feels like pins and needles all the time. . . . So I just kind of walk and drag my foot kind of." (R. 44.)
Plaintiff described her typical day as beginning at 6:30 or 7:00 a.m., when her uncle picks her up and takes her to the clinic to get her methadone. (R. 50-51.) On the way back, they "always stop at a bagel store." (R. 51.) After she returns home, she stays home "all day," uses her tablet computer, and watches TV. (Id.)
Plaintiff's attorney asked her whether her condition had changed since she last worked in 2009 and 2010. (R. 55.) Plaintiff responded: "Definitely. When I took the trip down the steps in 2011, my whole — from my right knee down it's numb/pins and needles. It's burning all the time. And to, to stand or to walk or to even just sitting — having something on it — it's, it's almost unbearable." (R. 55.) She described her right leg as "visually" smaller than her left, and cold to the touch (R. 55-56), though she testified that her back and hip cause her more pain than her foot. (R. 56.)
Plaintiff's counsel then asked "in terms of doing activities, which is either the easiest or the hardest for you in terms of sitting, standing or walking?," to which plaintiff responded: "Walking, standing and any pressure — but see — because sitting that, that bothers me as well." (R. 56.) She explained that "lying down is probably the least uncomfortable" position for her. (R. 57.)
Turning to her psychiatric ailments, plaintiff testified that she has anxiety, depression, and PTSD, and that those conditions are "getting worse" as she gets older. (R. 45.) She said she had nightmares about her car accident. (R. 46.) She testified that she takes psychiatric medications, but they are not helping. (R. 57-58.) She stated that she has panic attacks "[a]t least weekly," and that traveling raises her anxiety levels. (R. 59-60.)
Before beginning to question the vocational expert, the ALJ asked plaintiff how much she could lift in the context of a work setting. (R. 62.) Plaintiff said she could lift five pounds. (Id.)
VE Szollosy testified that plaintiff's prior work was as a waitress, DOT code 311.477-026, which is a semi-skilled position, performed at a light exertional level, with an SVP of 4. (R. 40.)
The ALJ presented VE Szollosy with a hypothetical claimant:
(R. 63-64.) VE Szollosy testified that such a claimant could not perform plaintiff's past relevant work, but could perform the jobs of inserter (DOT code 713.687-026; 200,000 positions in the national economy), sorter (DOT code 521.687-086; 500,000 positions in the national economy), and assembler or final assembler (DOT code 713.687-018; 240,000 positions in the national economy). (R. 64-66.)
The ALJ then presented VE Szollosy with a second hypothetical, identical to the first, except that the claimant could lift and carry only "five pounds occasionally instead of ten." (R. 66.) VE Szollosy testified that such a claimant could still perform the jobs of inserter, sorter, and assembler or final assembler, but that the number of positions available to the claimant would be eroded by fifty percent. (R. 66-67.) The ALJ then asked whether the same hypothetical claimant would be able to perform the same three jobs if he or she was "off-task by at least fifteen percent of the day during the course of an eight hour day." (R. 68.) VE Szollosy testified that there would be "no jobs" available to such a person. (R. 69.)
A claimant is "disabled" within the meaning of the Act if she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The impairments must be "of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In his September 26, 2017 Decision, the ALJ correctly set out the five-step sequential evaluation process used pursuant to 20 C.F.R. §§ 404.1520(a) and 416.920(a) to determine whether a claimant over the age of 18 is disabled within the meaning of the Act. (R. 14-16.) 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. §§ 404.1520(a)(4), 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 her residual functional capacity (RFC), age, education, and past relevant work experience. See 20 C.F.R. §§ 404.1560(c), 416.960(c). "Under the law of this Circuit and the SSA Guidelines, the ALJ must call a vocational expert to evaluate a claimant's significant non-exertional 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).
Prior to steps four and five, the ALJ must determine the claimant's RFC, that is, the "most [a claimant] can still do despite [her] limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 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, the objective medical evidence, and medical opinions from treating and consulting sources. Id. §§ 404.1545(a)(3), 416.945(a)(3).
At step one, the ALJ found that plaintiff had "not engaged in substantial gainful activity since February 23, 2012," the day following the SSA's adjudication of her prior applications. (R. 16.) He also found that plaintiff met "the insured status requirements of the Social Security Act" necessary for collecting DIB benefits "through March 31, 2013." (Id.)
At step two, the ALJ found that plaintiff had the severe impairments of lumbar disc protrusion, RSD of the right lower extremity, PTSD, anxiety disorder, and polysubstance abuse. (R. 16.) The ALJ concluded that plaintiff's asthma condition was nonsevere, and that her diagnosis of depression, which was made only by PNP McKenzie, was not "medically determinable." (Id.)
At step three, the ALJ found that plaintiff did "not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments" in the regulations. (R. 16.) He found that plaintiff's physical impairments, "considered singly and in combination," did not "meet or medically equal the criteria of any impairment listed in 1.02 [major dysfunction of a joint], 1.04 [disorders of the spine], or 11.14 [peripheral neuropathy]," in part because plaintiff's RSD did not result in an "inability to ambulate effectively" and because "[h]er lumbar disc protrusion has not resulted in positive straight leg raise testing." (Id.) He also found that plaintiff's mental impairments, "considered singly and in combination," did not "meet or medically equal the criteria of listings 12.06 [anxiety and obsessive-compulsive disorders] and 12.15 [trauma- and stressor-related disorders]." (Id.)
Before proceeding to step four, the ALJ determined plaintiff's RFC:
(R. 18.)
The ALJ also considered plaintiff's treatment history, the objective medical evidence, and the opinions of Drs. Ma, Graham, and Helprin, as well as those of PNP McKenzie and LCSW Silver. (R. 20-21.) He accorded "little" weight to the opinions of treating physician Dr. Ma, because, he concluded, they (1) "do not provided [sic] specific function-by-function limitations," and (2) "were rendered within the purview of temporary disability assistance, rather than permanent functional capacity." (R. 21.) He accorded "significant" weight to the opinion of consultative examiner Dr. Graham, because he was "impartial," "had the opportunity to examine claimant," and his opinions were "consistent with his own clinical findings and objective testing and with the rest of the evidence of record showing well documented RSD, causing foot drop and a severe limp." (R. 20.)
The ALJ also accorded "significant" weight to the opinions of consultative examiner Dr. Helprin, because she was "impartial," "had the opportunity to conduct amental [sic] status examination of the claimant," and her opinions were "consistent with her own clinical findings and objective testing and her record of anxiety and difficulty managing stress." (R. 20.) However, the ALJ gave "little" weight to Dr. Helprin's "opinion that the claimant had a marked limitation in thes [sic] ability to maintain a regular schedule, as this opinion is inconsistent with the her [sic] mental status examination of the claimant that found her memory was only mildly impaired and that her thought processes, sensorium, orientation, attention, concentration, insight and judgment were all normal." (Id.) The ALJ also gave "little" weight to the opinions of treating PNP McKenzie and LCSW Silver, because their "opinions were all rendered within the purview of temporary disability assistance and are not binding," and because, notwithstanding plaintiff's use of heroin between 2012 and 2016, "neither LCSW Silver nor NP [sic] McKenzie noted anything about the claimant's heroin use," which showed "that they did not possess a longitudinal, or current, understanding of the claimant's psychiatric history and symptoms." (R. 21.)
At step four, on the basis of his RFC determination, the ALJ found plaintiff incapable of performing her past relevant work as a server. (R. 21-22.)
At step five, the ALJ found that, considering plaintiff's "age, education, work experience," and RFC, there were jobs "that exist[] in significant numbers in the national economy" that plaintiff could perform. (R. 23.) Based on the testimony of VE Szollosy, he identified the jobs of inserter, sorter, and final assembler. (R. 22.) The ALJ therefore found that plaintiff was not under a disability from February 23, 2012, through September 26, 2017, the date of the Decision. (R. 23.)
Both parties have moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). To prevail on such a motion, a party must establish that no material facts are in dispute and that judgment must be granted to that party 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 law governing cases such as this is clear. The reviewing court "may set aside an ALJ's decision only where it is based upon legal error or where its factual findings are not supported by substantial evidence." McClean v. Astrue, 650 F.Supp.2d 223, 226 (E.D.N.Y. 2009) (citing Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998)); accord Longbardi v. Astrue, 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). Thus, the district court must first decide whether the Commissioner applied the correct legal standards. 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), report and recommendation adopted, 2008 WL 4449357 (S.D.N.Y. Oct. 1, 2008). If there was no legal error, the court must determine whether the ALJ's decision was supported by substantial evidence. Tejada, 167 F.3d at 773; Calvello, 2008 WL 4452359, at *8.
In this case, plaintiff argues that the ALJ erred in applying the doctrine of res judicata to the period August 24, 2011 through February 22, 2012; that the ALJ erred in weighing the opinion evidence, which, together with the other medical evidence of record, furnished "overwhelming" proof that plaintiff was "totally disabled and unable to engage in substantial gainful activity" during the relevant period; and that the ALJ's RFC determination was unsupported by substantial evidence. Pl. Mem. (Dkt. No. 21) at 18-25. The Commissioner counters that the ALJ correctly applied res judicata, properly evaluated the evidence in the record, including the medical opinions, and that the ALJ's RFC determination was supported by substantial evidence.
I conclude that the ALJ properly applied res judicata. However, the ALJ violated the treating physician rule by failing to give good reasons for discounting Dr. Ma's opinions about plaintiff's functional limitations, and this error was not harmless, requiring remand.
"When an administrative agency is acting in a judicial capacity and resolved disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose." United States v. Utah Const. & Min. Co., 384 U.S. 394, 422 (1966); see also Stellacci v. Barnhart, 2003 WL 22801554, at *5 (S.D.N.Y. Nov. 24, 2003) ("The application of administrative res judicata has been recognized and enforced by the Supreme Court, and the Second Circuit has deemed it appropriate in Social Security cases."). An ALJ may find that res judicata applies where the Social Security Administration has "made a previous determination or decision" about a claimant's rights "on the same facts and on the same issue or issues, and this previous determination or decision has become final by either administrative or judicial action." 20 C.F.R. §§ 404.957(c)(1), 416.1457(c)(1). See also Navan v. Astrue, 303 F. App'x 18, 20 (2d Cir. 2008) (concluding that the ALJ "correctly applied" res judicata where a claimant's second application claimed disability as of "the same date of onset as alleged in his first application," which had been denied, "thus including as part of his claimed disability period" a period subject to a "final, binding decision" by the Commissioner).
When a social security claimant applies for benefits, the SSA's "initial determination" of that application is "binding" unless the claimant requests "reconsideration within the stated time period," which is 60 days, or the agency revises its initial determination. 20 C.F.R. §§ 404.905, 404.909(a)(1), 416.1405, 416.1409(a). Whether or not the claimant seeks reconsideration, she may request a hearing before an ALJ, also within 60 days. 20 C.F.R. §§ 404.933(b), 416.1433(b). A claimant then has 60 days after an ALJ's decision or dismissal to seek Appeals Council review. 20 C.F.R. §§ 404.968(a)(1), 416.1468(a)
Whether or not Appeals Council review is sought, an ALJ may reopen and revise a final determination either on the Commissioner's initiative or on request of a claimant. 20 C.F.R. §§ 404.987, 416.1487. The requirements for reopening an application vary depending on how many years have passed since "the date of the notice of the initial determination." 20 C.F.R. §§ 404.988, 416.1488.
An ALJ's decision not to reopen a prior determination is generally not subject to judicial review. Califano v. Sanders, 430 U.S. 99, 107-08 (1977) ("an interpretation that would allow a claimant judicial review simply by filing and being denied a petition to reopen his claim would frustrate the congressional purpose, plainly evidenced in s 205(g), to impose a 60-day limitation upon judicial review of the Secretary's final decision on the initial claim for benefits"). Nevertheless, federal courts may review the decision not to reopen a prior disability application "in two circumstances: where the Commissioner has constructively reopened the case and where the claimant has been denied due process." Byam v. Barnhart, 336 F.3d 172, 180 (2d Cir. 2003). A constructive reopening occurs when the ALJ "reviews the entire record and renders a decision on the merits," in which case "any claim of administrative res judicata" is deemed "to have been waived and thus, the claim is. . . subject to judicial review." Id. (citations and quotation marks omitted). However, if the ALJ has only considered the earlier applications "in the context of deciding whether [a claimant] had demonstrated good cause for reopening" them, no constructive reopening occurs. Byam, 223 F.3d at 180-81.
Under the regulations governing the Decision in this action, the ALJ was required, when weighing and analyzing medical opinion evidence, to give controlling weight to the opinion of plaintiff's treating physicians, so long as those opinions were well-supported by medical findings and not inconsistent with other evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
"Before an ALJ can give a treating physician's opinion less than controlling weight, the ALJ must apply various factors to determine the amount of weight the opinion should be given," Norman v. Astrue, 912 F.Supp.2d 33, 73 (S.D.N.Y. 2012):
Id.; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
Under this standard, the ALJ may decline to afford the opinions of a treating physician controlling weight where (among other things) those opinions "are not consistent with other substantial evidence in the record." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). "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." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). See also 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) ("Generally, the more consistent a medical opinion is with the record as a whole, the more weight we will give to that medical opinion.").
If the ALJ does not afford controlling weight to the treating physician's opinions, however, he 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. §§ 404.1527(c)(2), 416.927(c)(2) ("We will always give good reasons in our. . . decision for the weight we give your treating source's medical opinion."); Crothers v. Colvin, 2015 WL 1190167, at *1 (S.D.N.Y. Mar. 16, 2015) (Caproni, J.) (reversing and remanding in part because the ALJ "fail[ed] to comprehensively set forth `good reasons' for not giving controlling weight to a treating physician's opinion"). The "requirement of reason-giving exists, in part, to let claimants understand the disposition of their cases, even — and perhaps especially — when those dispositions are unfavorable." Snell, 177 F.3d at 134. See also Gallo v. Colvin, 2016 WL 7744444, at *14 (S.D.N.Y. Dec. 23, 2016) ("Particularly where an ALJ does not credit a treating physician's findings, the claimant is entitled to an explanation.") (subsequent history omitted). It also functions to facilitate the Court's review of the agency decision. Halloran, 362 F.3d at 33 (the "good reasons" requirement assists courts' review of ALJ's decisions); Rivera v. Astrue, 2012 WL 3614323, at *8 (E.D.N.Y. Aug. 21, 2012) ("[I]n order to accommodate `limited and meaningful' review by a district court, the ALJ must clearly state the legal rules he applies and the weight he accords the evidence considered.") (citation omitted). A "failure to provide good reasons for not crediting the opinion of a claimant's treating physician is a ground for remand." Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (citation and internal quotation marks omitted); Halloran, 362 F.3d at 33.
Plaintiff contends that the ALJ improperly applied res judicata when he concluded that "the issue of disability from August 24, 2011, the alleged onset date, through February 22, 2012, the date of the prior initial determination, has been addressed, and the doctrine of res judicata applies." (R. 13.) I disagree.
Plaintiff filed her prior applications for DIB and SSI on November 1, 2011, alleging disability since August 24, 2011. (R. 13.) The SSA denied those applications on February 22, 2012. (R. 13, 101.) Though plaintiff initially requested a hearing before an ALJ, her counsel "asked to withdraw" that request on April 22, 2013. (R. 101.) In the resulting order of dismissal, dated April 24, 2013, ALJ Dennis G. Katz wrote that he "fully advised" plaintiff "of the effects of this action, including dismissal of the request for hearing with the result that the initial determination would remain in effect," and was "satisfied that the claimant understands the effects of her withdrawal of the request for hearing." (Id.) ALJ Katz continued: "the claimant's request for hearing dated March 16, 2012 is dismissed; and the initial determination dated February 22, 2012 remains in effect." (Id.)
After withdrawing her request for a hearing, plaintiff did not otherwise appeal or seek reconsideration of the SSA's February 22, 2012 determination. Nor did the SSA revise or reopen that determination of its own accord. Therefore, the SSA's February 22, 2012 determination was final and binding for purposes of res judicata. See 20 C.F.R. §§ 404.905, 416.1405 ("An initial determination is binding unless you request a reconsideration within the stated time period, or we revise the initial determination."); id. §§ 404.987(a), 416.1487(a) ("Generally, if you are dissatisfied with a determination or decision made in the administrative review process, but do not request further review within the stated time period, you lose your right to further review and that determination or decision becomes final."). See also Sanville v. Comm'r of Soc. Sec., 2017 WL 4174783, at *4-5 (D. Vt. Sept. 20, 2017) (concluding that the ALJ properly applied res judicata based on the SSA's initial determination of a prior application, even where, as here, there was no ALJ hearing concerning that prior application).
Because the issue of plaintiff's disability under the Act during the time period August 24, 2011 through February 22, 2012 was resolved in a final and binding determination by the SSA, the ALJ properly applied res judicata to bar her disability claims as to that time period. Navan, 303 F. App'x at 20 (the ALJ "correctly applied res judicata" where a claimant's second application for disability benefits included a time period subject to a "final, binding decision" resolving his first application); Rivera v. Saul, 2019 WL 4294829, at *3 (D. Conn. Sept. 11, 2019) ("[T]he ALJ did not err in finding that administrative res judicata precluded redetermination of plaintiff's claims before August 3, 2015, the date of the prior determination denying disability."); Bobkin v. Colvin, 2013 WL 6181991, at *2 (S.D.N.Y. Nov. 26, 2013) ("For res judicata to bar a claim for benefits, two conditions must be met: The previous determination must be (1) final and (2) based on the same facts and issues as the new claim. . . . Those conditions are plainly met here.").
Plaintiff advances three arguments in support of her contention that it was nonetheless error for the ALJ to apply res judicata here.
First, plaintiff argues that "theoretically" plaintiff's earlier claims "can be reopened," because "in the instant case it has been less than four years." Pl. Mem. at 18.
Second, plaintiff argues that the ALJ erred in applying res judicata without determining whether "the current medical evidence of record is new and/or material to the prior claim." Pl. Mem. at 18 (citing SSR 68-12a, 1968 WL 3926 (1968)). SSR 68-12a "provides that res judicata will not bar consideration of a new application covering the same period of time when new and material evidence is provided." Larck v. Barnhart, 2003 WL 22466173, at *3 (D. Me. Oct. 31, 2003), report and recommendation adopted, 2003 WL 22989683 (D. Me. Dec. 15, 2003), aff'd, 110 F. App'x 146 (1st Cir. 2004). "New evidence is evidence not in existence or available to the claimant at the time of the administrative proceeding," and "material evidence is evidence that affects the outcome of a case." Bigelow v. Astrue, 2009 WL 1955750, at *5 (W.D.N.Y. July 6, 2009) (internal citations and quotation marks omitted). Cumulative evidence of the same condition is not "new and material" for purposes of SSR 68-12a. Marshall v. Colvin, 2015 WL 3649885, at *3 (D. Or. June 10, 2015) (rejecting argument based on SSR 68-12a where plaintiff's "new" records reflected no "previously unevaluated condition[s]" but only ongoing complaints of the same type as were at issue in the prior determination). In this case, plaintiff does not specify what "new and material evidence" might overcome the application of res judicata in this case, nor does she identify any relevant then-existing evidence which was not before the SSA in connection with her prior application. Therefore, plaintiff's challenge to the ALJ's application of res judicata based on alleged new and material evidence fails. See Larck, 2003 WL 22466173, at *3 ("It is not possible, based on the administrative record presented to the court, to determine whether new and material evidence was presented in connection with the current application that was not presented in connection with the earlier application.").
Third, plaintiff contends that the ALJ erred in applying res judicata because "the subsequent determination was made based on regulations regarding mental impairments which were changed" as of January 17, 2017. Pl. Mem. at 19. As plaintiff notes, the SSA's Hearings, Appeals, and Litigation Law Manual (HALLEX) provides that "a change in the regulations precludes an ALJ from dismissing a [request for hearing] on the basis of administrative res judicata." HALLEX 1-2-4-40(K), 2005 WL 1870458 (May 1, 2017). However, "HALLEX is `simply a set of internal guidelines for the SSA, not regulations promulgated by the Commissioner,' and therefore, a failure to follow HALLEX does not necessarily constitute legal error." Paredes v. Comm'r of Soc. Sec., 2017 WL 2210865, at *16 (S.D.N.Y. May 19, 2017) (Moses, M.J.) (quoting Harper v. Comm'r of Soc. Sec., 2010 WL 5477758, at *4 (E.D.N.Y. Dec. 30, 2010)); see also Tomaka v. Comm'r of Soc. Sec., 2020 WL 359182, at *4 (W.D.N.Y. Jan. 1, 2020) ("To the extent that plaintiff suggests that the ALJ committed legal error by misapplying HALLEX, courts in this Circuit have routinely dismissed such claims."). In any event, the ALJ in this case did not dismiss a request for a hearing — he held a hearing. Finally, even if HALLEX were binding, and even if the ALJ had dismissed plaintiff's request for a hearing, any error on his part in applying res judicata despite a change in the relevant regulations regarding mental impairments would have been harmless, because the record contains no evidence that plaintiff had significant mental health impairments before 2015 (when she began seeking regular mental health treatment from PNP McKenzie and LCSW Silver). See Plummer v. Berryhill, 747 F. App'x 631, 632 (9th Cir. 2019) (finding ALJ's application of res judicata harmless); Kobetic v. Comm'r of Soc. Sec., 114 F. App'x 171, 173 (6th Cir. 2004) (finding ALJ's error resulting in a failure to consider an eligible time period harmless).
The plaintiff correctly contends, however, that the ALJ erred in assigning "little" weight to the opinions of treating physician Dr. Ma without providing good reasons for doing so. In his Decision, the ALJ provided two reasons for his decision to discount Dr. Ma's opinions. (R. 21.)
First, the ALJ stated that Dr. Ma's opinions "do not provided [sic] specific function-by-function limitations, indicating rather than the claimant could perform less than sedentary work." (R. 21.) The record reflects otherwise: Dr. Ma opined on plaintiff's lifting, standing and/or walking, sitting, and pushing/pulling limitations on six separate occasions between January 4, 2012 and March 23, 2016. (R. 459-60, 812, 977, 979, 981, 983.)
Second, the ALJ noted that Dr. Ma's opinions "were rendered within the purview of temporary disability assistance, rather than permanent functional capacity." (R. 21.) Not so. On one occasion, Dr. Ma provided her opinion on a form provided by the New York State Office of Temporary and Disability Assistance (NYS OTDA), Division of Disability Determinations (R. 456-62), "the state agency charged with adjudication of disability claims on behalf of the federal government." Genier v. Astrue, 606 F.3d 46, 47 (2d Cir. 2010). On five other occasions, she completed Physical Employability Assessments for the Orange County Department of Social Services. The record does not reveal whether those were originally for the purpose of "temporary disability assistance" rather than "permanent functional capacity." In any event, Dr. Ma opined in each form that plaintiff's condition was permanent. (R. 812, 977, 979, 981, 983.)
Even if the ALJ's twin reasons were supported by the record, however, they would not — without more — justify the ALJ's sweeping rejection of all of Dr. Ma's opinions. "[T]he lack of a function-by-function assessment alone is not a `good reason' for rejecting the opinion of a treating physician." Laureano v. Comm'r of Soc. Sec., 2018 WL 4629125, at *13 (S.D.N.Y. Sept. 26, 2018) (citing Stango v. Colvin, 2016 WL 3369612, at *11 (S.D.N.Y. June 17, 2016)). Moreover, where a treating physician does provide functional assessments, "as opposed to a general disability conclusion," her opinion should not be rejected "simply because of the context in which the opinion is rendered." Pataro v. Berryhill, 2019 WL 1244664, at *17 (S.D.N.Y. Mar. 1, 2019) (Moses, M.J.) (collecting cases), report and recommendation adopted, 2019 WL 1244325 (S.D.N.Y. Mar. 18, 2019). See also Gallagher v. Comm'r, 2019 WL 442450, at *4 (W.D.N.Y. Feb. 5, 2019) ("Trying to justify the rejection of Dr. Sheehan's otherwise relevant opinion based on the form on which it was rendered was error. . . If that ALJ felt that the form lacked sufficient narrative, the ALJ should have contacted the doctor and requested additional information[.]") (quotation marks and internal citations omitted).
The Commissioner argues that the ALJ rightly discounted Dr. Ma's opinions because they were provided on the same "state form" that the Second Circuit found "only marginally useful" in Halloran. Def. Mem. at 19 n.13. In that case, the Second Circuit grudgingly upheld an ALJ's decision to discount the opinion of treating physician Dr. Elliott, who — like Dr. Ma — used an NYS OTDA form to "check[] a box stating that Halloran could sit for `less than 6 hours per day.'" Halloran, 362 F.3d at 31. In a footnote, the court characterized the form as "only marginally useful for purposes of creating a meaningful and reviewable factual record" because the section regarding the claimant's sitting limitations "allow[ed] a choice among the following four uninformative answers: `No Limitation'; `up to 8 hours per day'; `up to 6 hours per day'; and `less than 6 hours per day.'" Id. at 31 n.2.
To the extent the Commissioner reads Halloran as authorizing an ALJ to reject a treating physician's opinion merely because the physician uses an NYS OTDA form, he is mistaken. Dr. Elliott assessed Halloran's functional abilities only once. Id. Dr. Ma, by contrast, opined on plaintiff's functional abilities six times, over the course of more than four years, with consistent results regardless of the form she used. (R. 459-60, 812, 977, 979, 981, 983.) Moreover, the ALJ in Halloran specifically discussed Dr. Elliott's sitting restriction, explaining that he did not adopt it (in full) because it "did not `address the question of whether [Halloran] could do the job if given several breaks or allowed to change position often.'" 362 F.3d at 32-33. The ALJ then incorporated those accommodations into his RFC, thus demonstrating that he did not wholly reject the opinion of the claimant's treating physician. See id. at 31 (acknowledging that Dr. Elliot's opinion, even if rendered on a check-the-box form, could "call into question [a claimant's] ability to do sedentary work.").
In this case, by contrast, the ALJ did not discuss — much less provide good reasons for rejecting — the two key assessments provided by Dr. Ma: that plaintiff could stand and/or walk "less than 2 hours per day" and could sit "less than 6 hours per day." Either of these, if accepted, would preclude a full range of sedentary work, and both were fully consistent with plaintiff's testimony and Function Report.
Moreover, the ALJ here did not merely discount Dr. Ma's opinions; he appears to have rejected them entirely, in that his RFC formulation (unlike the RFC at issue in Halloran) does not incorporate any sit-stand option, breaks, assistive devices, or other accommodations for the "severe [right] sciatica nerve neuropathy" underlying Dr. Ma's sitting limitation (see R. 458, 811) or the RSD condition underlying her assessment of plaintiff's ability to stand and walk. (See R. 977, 979.)
On this record, the Court cannot conclude that the ALJ had good reasons for rejecting the opinions of plaintiff's treating physician. See Halloran, 362 F.3d at 33 ("We do not hesitate to remand when the Commissioner has not provided `good reasons' for the weight given to a treating physician[`]s opinion and we will continue remanding when we encounter opinions from ALJ[]s that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion."); Pataro, 2019 WL 1244664, at *17 (remanding where "[t]he ALJ simply ignored Dr. Shein's opinions as to plaintiff's ability to sit, stand, and walk. He did not incorporate any of these limitations in plaintiff's RFC, and did not give good reasons (or any reasons) for failing to do so").
Moreover, the ALJ's error was not harmless. See Walzer v. Chater, 1995 WL 791963, at *9 (S.D.N.Y. Sept. 26, 1995) (an error is harmless where consideration of a physician's opinion "would not have changed the outcome of the ALJ's decision"). Social Security Ruling 96-6p provides that limitations to an individual's ability to sit, stand, or walk may erode the occupational base of sedentary work available to that individual. See SSR 96-9p, 1996 WL 374185, at *6-7 (July 2, 1996) ("If an individual is unable to sit for a total of 6 hours in an 8-hour work day, the unskilled sedentary occupational base will be eroded. . . . If an individual can stand and walk for a total of slightly less than 2 hours per 8-hour workday, this, by itself, would not cause the occupational base to be significantly eroded. Conversely, a limitation to standing and walking for a total of only a few minutes during the workday would erode the unskilled sedentary occupational base significantly."). See also Milhomme v. Comm'r of Soc. Sec., 2018 WL 4562347, at *3 (D. Conn. Sept. 24, 2018) ("Accordingly, any limitation in plaintiff's ability to walk/sit may significantly erode the occupational base and consequently her ability to perform sedentary work.").
Because the ALJ improperly discounted the opinions of plaintiff's treating physician as to her functional limitations without providing good reasons for doing so, and because those limitations, if credited, would have changed the outcome of his RFC determination, this case should be remanded.
For the reasons stated above, I respectfully recommend that plaintiff's motion be GRANTED, that the Commissioner's motion be DENIED, and that this action be REMANDED for further proceedings. On remand:
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. Valerie E. Caproni at 40 Foley Square, 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 Caproni.
