JOEY A. v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION
Civ. No. 3:21CV00244(SALM)
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
March 23, 2022
Plaintiff Joey A. (“plaintiff“) brings this appeal under
For the reasons set forth below, plaintiff‘s Motion to Reverse the Decision of the Commissioner [Doc. #20] is DENIED, and defendant‘s Motion for an Order Affirming the Decision of the Commissioner [Doc. #25] is GRANTED.
I. PROCEDURAL HISTORY2
Plaintiff filed concurrent applications for DIB and SSI on August 18, 2017, alleging disability beginning February 2, 2011. See Certified Transcript of the Administrative Record, Doc. #18, compiled on May 25, 2021, (hereinafter “Tr.“) at 227-42.3 Plaintiff‘s applications were denied initially on December 21, 2017, see Tr. 172-80, and upon reconsideration on January 10, 2019. See Tr. 187-91.
On January 8, 2020, plaintiff, represented by Attorney Alan L. Rosner, appeared and testified at a hearing before
II. STANDARD OF REVIEW
The review of a Social Security disability determination involves two levels of inquiry. “First, the Court reviews the Commissioner‘s decision to determine whether the Commissioner applied the correct legal standard. Next, the Court examines the record to determine if the Commissioner‘s conclusions are supported by substantial evidence.” Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999) (citations omitted). Substantial evidence is evidence that “‘a reasonable mind might accept as adequate to support a conclusion[;]‘” it is “‘more than a mere scintilla.‘” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)). The reviewing court‘s “responsibility is
“The Court does not reach the second stage of review -- evaluating whether substantial evidence supports the ALJ‘s conclusion -- if the Court determines that the ALJ failed to apply the law correctly.” Poole v. Saul, 462 F. Supp. 3d 137, 146 (D. Conn. 2020).
Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
“[T]he crucial factors in any determination must be set forth with sufficient specificity” by the ALJ to enable a reviewing court “to decide whether the determination is supported by substantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). The “ALJ is free to accept or reject” the testimony of any witness, but “[a] finding that the witness is not credible must nevertheless be set forth with sufficient specificity to permit intelligible plenary review of the record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988). “Moreover, when a finding is potentially dispositive on the issue of disability, there must be enough discussion to enable a reviewing court to determine whether
It is important to note that in reviewing the ALJ‘s decision, this Court‘s role is not to start from scratch. “In reviewing a final decision of the SSA, this Court is limited to determining whether the SSA‘s conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quoting Lamay v. Comm‘r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009)).
III. SSA LEGAL STANDARD
Under the Social Security Act, every individual meeting certain requirements who is under a disability is entitled to disability insurance benefits. See
For the Social Security Administration (“SSA“) to consider a claimant disabled under the Act and therefore entitled to benefits, plaintiff must demonstrate that he is unable to work after a date specified “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[.]”
There is a familiar five-step analysis used to determine whether a person is disabled. See
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). If and only if the claimant does not have a listed impairment, the Commissioner engages in the fourth and fifth steps:
Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant‘s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. Under the cases previously discussed, the claimant bears the burden of proof as to the first four steps, while the Secretary must prove the final one.
Through the fourth step, the claimant carries the burdens of production and persuasion, but if the analysis proceeds to the fifth step, there is a limited shift in the burden of proof and the Commissioner is obligated to demonstrate that jobs exist in the national or local economies that the claimant can perform given his residual functional capacity.
Gonzalez ex rel. Guzman v. Sec‘y of U.S. Dep‘t of Health & Hum. Servs., 360 F. App‘x 240, 243 (2d Cir. 2010); see also Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam). The residual functional capacity (“RFC“) is “the most” a person is still capable of doing despite limitations resulting from her or his physical and mental impairments.
“In assessing disability, factors to be considered are (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.” Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978).
IV. THE ALJ‘S DECISION
Following the above-described evaluation process, the ALJ concluded that plaintiff was not “under a disability within the meaning of the Social Security Act from January 1, 2016, the amended alleged onset date through” March 4, 2020.4 Tr. 13.
At step one, the ALJ found that plaintiff had “not engaged in substantial gainful activity since January 1, 2016, the amended alleged onset date[.]” Tr. 15. At step two, the ALJ found that plaintiff had “the following severe impairments: Multiple Sclerosis (MS); and Degenerative Disc Disease of the Lumbar Spine and Cervical Spine[.]” Id. (sic).
Before moving on to step four, the ALJ found that plaintiff had the RFC
to perform light work as defined in
20 CFR 404.1567(b) and416.967(b) except he can stand and walk four hours in an eight-hour workday with occasional ability to climb ramps and stairs but no climbing of ladders, ropes, scaffolds and occasional balancing, stooping, kneeling, crouching and crawling. He must avoid unprotected heights or hazardous machinery and concentrated exposures to extreme heat.
Id.
At step four, the ALJ concluded that plaintiff was “capable of performing past relevant work as a Hotel Services Sales Representative.” Tr. 21. The ALJ also made alternative step five findings, and concluded that “there are other jobs that exist in significant numbers in the national economy that [plaintiff] can also perform, considering [plaintiff‘s] age, education, work experience, and” RFC. Tr. 22.
V. DISCUSSION
The Court construes plaintiff‘s motion as contending that: (1) the ALJ‘s evaluation of some of the medical opinions in the
As set forth below, the Court finds that the ALJ did not commit reversible error, and her decision is supported by substantial evidence.
A. Evaluation of Medical Opinion Evidence
Plaintiff contends that the ALJ‘s evaluations of the opinions authored by Dr. Kenneth Fischer, plaintiff‘s treating neurologist, and MPT Jeanine Hrabosky, plaintiff‘s treating physical therapist, are not supported by substantial evidence. See Doc. #20-2 at 13, 17, 20. Plaintiff also asserts that the opinions of the reconsideration-level state agency medical consultants were stale, and that the ALJ erred in finding that “the additional evidence submitted at the hearing level does not support a greater or worsening condition.” Doc. #20-2 at 7. Defendant contends that the ALJ properly considered the medical opinion evidence. See generally Doc. #25-1 at 18-21.
1. Applicable Law
The SSA has enacted new regulations regarding the consideration of medical opinions for claims filed on or after March 27, 2017. See
“Previously, the SSA followed the treating physician rule, which required the agency to give controlling weight to a treating source‘s opinion, so long as it was well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with the other substantial evidence in the record.” Jacqueline L. v. Comm‘r of Soc. Sec., 515 F. Supp. 3d 2, 7 (W.D.N.Y. 2021) (citation and quotation marks omitted). Under the new regulations, “no particular deference or special weight is given to the opinion of a treating physician.” Quiles v. Saul, No. 19CV11181(KNF), 2021 WL 848197, at *9 (S.D.N.Y. Mar. 5, 2021).
“Although the new regulations eliminate the perceived hierarchy of medical sources, deference to specific medical opinions, and assigning ‘weight’ to a medical opinion, the ALJ must still articulate how he or she considered the medical opinions and how persuasive he or she finds all of the medical opinions.” Jacqueline L., 515 F. Supp. 3d at 8 (citation and quotation marks omitted); see also
When “articulat[ing] [the] consideration of medical opinions” the ALJ “will articulate ... how persuasive [he or she] find[s] all of the medical opinions[.]”
The new regulations acknowledge that “[a] medical source may have a better understanding of your impairment(s) if he or she examines you than if the medical source only reviews evidence in your folder.”
2. Opinion of Dr. Fischer
The ALJ considered the medical opinions of plaintiff‘s treating neurologist, Dr. Kenneth Fischer. See Tr. 20-21. Dr. Fischer completed two Medical Source Statements on June 19, 2018, one specifically related to lumbar spine issues, see Tr. 1566-69, and the other specifically related to Multiple Sclerosis issues, see Tr. 1571-74. He opined, inter alia, that plaintiff: could “[s]tand/walk” for “about 2 hours” in an eight-hour work day; could sit for “about 4 hours” in an eight-hour work day; would need one-to-two extra breaks per day; and would miss [m]ore than four days per month” of work “as a result of the impairments or treatment[.]” Tr. 1567-69; Tr. 1572-74.
The treatment notes from Dr. Fischer the same day that he completed the medical source statements (June 18, 2018) report that he had not seen the claimant since 2014 and that the claimant has rejected any intervention for the MS (Exhibit 29F/2). Dr. Fischer ordered updated testing and those MRI‘s showed no new symptoms of MS, despite active demyelination (Exhibit 29F/7) and only mild degenerative changes to his lumbar spine (Exhibit 29F/3-6).
Tr. 20-21 (sic).
Plaintiff asserts that the ALJ did not adequately consider that “Dr. Fischer ... was the neurologist who had assessed Plaintiff in 2010, 2011, 2013 and 2014.” Doc. #20-2 at 13.5 Under the new regulations, the ALJ was “not required to[] explain[,]” how she evaluated the medical source‘s relationship with the claimant.
The report begins with the statement: “Today I have seen for neurological consultation Mr. [plaintiff], a 44-year-old right-handed businessman originally from Connecticut. I have seen Mr. [plaintiff] between 2007 but not since 6-17-14.” Tr. 1576. The ALJ noted that Dr. Fischer had not seen plaintiff since 2014. See Tr. 20. It is apparent that the ALJ adequately considered plaintiff‘s relationship with Dr. Fischer. See, e.g., Wayne M. v. Saul, No. 3:20CV00465(SALM), 2021 WL 1399777, at *11 (D. Conn. Apr. 14, 2021) (“[T]he Court can glean from the ALJ‘s decision that she considered the treatment relationship between plaintiff and these two providers.“). There is no error in this regard.6
The ALJ properly evaluated the persuasiveness of Dr. Fischer‘s opinions. The ALJ considered supportability, finding that the assessed limitations were “inconsistent with” Dr. Fischer‘s “treatment notes[.]” Tr. 20; see also Palmer v. Saul,
The ALJ also considered the opinion‘s consistency with the record as a whole. The ALJ found Dr. Fischer‘s assessed limitations were minimally persuasive because they were inconsistent with “the claimant‘s significant activities.” Tr. 20. Other aspects of the ALJ‘s decision reveal which activities the ALJ found significant. For instance, the ALJ noted that plaintiff “has been able to travel overseas and live in China for extended periods[,]” Tr. 21; that he “reported doing some CrossFit and Pilates” in 2017, Tr. 18; and that “he was able to drive but limited his driving to 20 to 30 minutes.” Tr. 17. These are all reasonable and appropriate factors for the ALJ to consider in assessing consistency with the record. See, e.g., Smead v. Comm‘r of Soc. Sec., No. 1:13CV00185(JGM)(JMC), 2014 WL 2967601, at *7 (D. Vt. July 1, 2014) (“[T]he ALJ correctly determined that [a treating source‘s] opinions are inconsistent with [plaintiff‘s] daily activities including air travel within and outside the United States[.]“).
Accordingly, the ALJ properly considered the required factors when evaluating the persuasiveness of Dr. Fischer‘s opinion, and substantial evidence supports the ALJ‘s evaluation. The Court finds no error in the evaluation of Dr. Fischer‘s opinion.
3. Opinion of MPT Hrabosky
The ALJ also considered the December 11, 2019, opinion of plaintiff‘s treating physical therapist, MPT Hrabosky, which “notes very limited abilities to do anything with significant off task behavior[.]” Tr. 21. Specifically, MPT Hrabosky opined that plaintiff: (1) could sit “less than 2 hours” “total in an 8-hour working day[,]” Tr. 1646; (2) required a ten-minute break every fifteen minutes, see id.; and (3)could “[n]ever” lift ten pounds. Tr. 1647.
The ALJ found MPT Hrabosky‘s opinion to be “minimally persuasive[.]” Tr. 21. In making that finding, the ALJ stated:
The undersigned finds the report to be minimally persuasive, as it is based on only a couple of weeks of treatment in physical therapy. Ms. Hradbosky notes that the claimant was currently ambulating with bilateral crutches and notes very limited abilities to do anything with significant off task behavior; however, the assessed limitations are inconsistent with the treatment notes showing some limitations with strength primarily in his left lower extremity (Exhibit 40F) and gaps in treatment from November 2017 to September 2019. While he began treating for gait abnormalities in November 2019 with Ms. Hradbosky, there is no indication that his condition will not improve with physical therapy. In fact, at his physical therapy session on December 20, 2019, the claimant‘s gait pattern looked better with improved heel strike, increased hip extension and improved push off (Exhibit 40F/42). The claimant did report fatiguing easily with exercises (Exhibit 40F/42); however, he has been able to travel overseas and live in China for extended periods beginning in 2018. Overall, the claimant‘s independent activities support a greater level of functioning than what was assessed by his physical therapist.
Id. (sic).
Plaintiff erroneously contends that the ALJ “ignored every single one of Hrabosky‘s findings in 40 pages of treatment notes[,]” and “ignored Hrabosky‘s MS Medical Source Statement[.]” Doc. #20-2 at 19. The ALJ did not ignore Hrabosky‘s findings; rather, she considered and rejected them. The ALJ in fact cited to Hrabosky‘s treatment notes six times in her ruling. See Tr. 19-21. The ALJ reviewed MPT Hrabosky‘s
Plaintiff asserts that the ALJ erred by failing to mention each specific restriction recommended by Hrabosky. See Doc. #20-2 at 19. “[A]lthough required to develop the record fully and fairly, an ALJ is not required to discuss all the evidence submitted, and his failure to cite specific evidence does not indicate that it was not considered.” Barringer v. Comm‘r of Soc. Sec., 358 F. Supp. 2d 67, 79 (N.D.N.Y. 2005) (citation and quotation marks omitted). “When, as here, the evidence of record permits us to glean the rationale of an ALJ‘s decision, [the Court] do[es] not require that [s]he have mentioned every item of testimony presented to h[er] or have explained why [s]he considered particular evidence unpersuasive or insufficient to lead h[er] to a conclusion of disability.” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983).
The ALJ‘s rationale is clear. While the ALJ did not explicitly reference the “many rest breaks” plaintiff notes, she cited the very treatment record plaintiff relies upon: “The claimant did report fatiguing easily with exercises (Exhibit 40F/42); however, he has been able to travel overseas and live in China for extended periods beginning in 2018.” Tr. 21 (citing Tr. 1690). It is clear that the ALJ properly considered plaintiff‘s reports of fatigue. See Smead, 2014 WL 2967601, at *7 (“[T]he ALJ correctly determined that [a treating source‘s] opinions are inconsistent with [plaintiff‘s] daily activities including air travel within and outside the United States[.]“).
As to supportability, the ALJ explained that “the assessed limitations are inconsistent with [MPT Hrabosky‘s] treatment notes showing some limitations with strength primarily in [plaintiff‘s] left lower extremity (Exhibit 40F) and gaps in treatment from November 2017 to September 2019.” Tr. 21 (citing Tr. 1649-91); see also Wright v. Colvin, No. 3:16CV00463(JCH), 2017 WL 202171, at *5 (D. Conn. Jan. 18, 2017) (“The ALJ‘s decision to give no weight to [a treating physician‘s] opinions due to their inconsistency with her own notes is supported by substantial evidence.“).
The ALJ also considered the consistency of MPT Hrabosky‘s opinion with the record as a whole. In doing so, the ALJ noted that plaintiff “has been able to travel overseas and live in China for extended periods[,]” that his gait pattern was improving with physical therapy, and that his “independent activities support a greater level of functioning than what was assessed by his physical therapist.” Tr. 21; see also Smead, 2014 WL 2967601, at *7. Elsewhere in her ruling the ALJ noted that plaintiff was able to drive short distances, see Tr. 17; was “independent with activities of daily living[,]” Tr. 19; and
The ALJ‘s decision reflects that she properly “evaluated the persuasiveness of the medical source opinion[] and explained how [s]he considered the factors of supportability and consistency.” Gilmore, 2022 WL 74167, at *4. The ALJ‘s evaluation of that opinion is supported by substantial evidence. Accordingly, the Court finds no error in the ALJ‘s evaluation of MPT Hrabosky‘s opinion.
4. The Opinions of the Reconsideration-Level State Agency Medical Consultant
When evaluating the medical opinion evidence, the ALJ also “considered the State agency residual functional capacity assessments at the initial and reconsideration levels[.]” Tr. 20. Because plaintiff challenges only the reconsideration-level state agency medical consultant‘s opinions, the Court limits its discussion to those opinions. See Doc. #20-2 at 7.
The reconsideration-level state agency medical consultant, Dr. Chopra, found that plaintiff:
maintains the physical residual capacity to lift and/or carry 20lbs. occasionally and 10lbs. frequently. He can stand and/or walk 4 hours in an 8-hour workday. He can sit 6 hours in an 8-hour workday. Climbing ramps/stairs/ladders/ropes/scaffolds, stooping, kneeling, crouching and crawling limited to occasional. Balancing limited to frequent. Additionally, the claimant should avoid concentrated exposure to extreme heat.
Tr. 111, Tr. 133; see also Tr. 112-15; Tr. 134-37.
Plaintiff asserts that the later submitted evidence undermines Dr. Chopra‘s evaluations because the evidence submitted at the hearing level “clearly demonstrate[s] a severe decline in overall functioning, chronic fatigue, and chronic pain.” Doc. #20-2 at 7. The Court construes this argument as asserting that Dr. Chopra‘s evaluation was stale, and therefore the ALJ erred by finding it “most persuasive[.]” Tr. 20.
“[M]edical source opinions that are stale and based on an incomplete medical record may not be substantial evidence to support an ALJ finding.” Kelly W. v. Kijakazi, No. 3:20CV00948(JCH), 2021 WL 4237190, at *13 (D. Conn. Sept. 17, 2021) (citation and quotation marks omitted). “However, a
Here, the medical evidence submitted at the hearing level that was not available to Dr. Chopra does not “raise doubts as to the reliability of” his opinion. Id. Plaintiff asserts that the following exhibits in the record “clearly demonstrate a severe decline in overall functioning, chronic fatigue, and chronic pain.” Doc. #20-2 at 7. Plaintiff cites:
- Tr. 1570-74: Dr. Fischer‘s MSS;
- Tr. 1575-82: Dr. Fischer‘s Report of June 13, 2018, consultation;
- Tr. 1644-48: MPT Hrabosky‘s MSS;
- Tr. 1649-91: Physical Therapy records, including MPT Hrabosky‘s treatment notes; and
Tr. 1692-1702: Treatment notes by Dr. Andrea Douglas.
Dr. Chopra had the report of Dr. Fischer‘s June 13, 2018, consultation before him, and considered it in his evaluation. See Tr. 110-11. He also expressly considered the results of the MRIs ordered by Dr. Fischer. See Tr. 111. The record further reflects that both of Dr. Fischer‘s opinions were before Dr. Chopra at reconsideration. See Tr. 99-100 (listing “multiple sclerosis medical source statement” and “lumbar spine medical source statement” as being received November 15, 2018, from plaintiff‘s attorney).
As discussed earlier, the treatment notes from plaintiff‘s physical therapy do not support significant functional restrictions. The ALJ separately considered those notes, and MPT Hrabosky‘s opinion, and committed no error in doing so.
Dr. Chopra did not have the benefit of the treatment notes from plaintiff‘s visit to Dr. Andrea Douglas in December 2019. See Tr. 1694-1702. Those treatment notes lack any functional assessment of plaintiff‘s limitations; rather, the notes primarily summarize plaintiff‘s medical history and his self-reported symptoms. See Tr. 1697. Dr. Douglas had not treated plaintiff prior to that appointment. She concluded that plaintiff “needs to see a neurologist locally and establish whether not he should begin treatment for his multiple sclerosis.” Tr. 1697 (sic). Such a limited evaluation devoid
The only substantive issue that arises in the later records that might have substantially impacted Dr. Chopra‘s opinion relates to plaintiff‘s ability (or inability) to ambulate without an assistive device. Dr. Chopra did not have the benefit of the comment in MPT Hrabosky‘s treatment notes that plaintiff appeared “very unsteady without the crutches.” Tr. 1654. He also did not have Dr. Douglas‘s notes, indicating that plaintiff had reported “now requiring a wheelchair for long distances and crutches for short distances.” Tr. 1697. However, Dr. Chopra had ample information regarding plaintiff‘s trouble ambulating. He considered plaintiff‘s claim of “hard time walking and pain/spasms in the left leg.” Tr. 108. He further considered plaintiff‘s statement that “he needs a cane 80% of the time[,]” and reported symptoms of pain, weakness, and fatigue. Tr. 112. Moreover, MPT Hrabosky‘s treatment notes indicated that plaintiff “feel[s] [his] walking is improving.” Tr. 1682; see also Tr. 1654, Tr. 1684, Tr. 1686, Tr. 1688.
In sum, the Court finds that the hearing level evidence did not undermine the persuasiveness of the reconsideration-level
B. The RFC Determination
Plaintiff contends that the ALJ‘s RFC determination is not supported by substantial evidence. See Doc. #20-2 at 2. Defendant generally contends that substantial evidence supports the RFC determination. See Doc. #25-1 at 11-22.
The ALJ found that plaintiff had the RFC
to perform light work as defined in
20 CFR 404.1567(b) and416.967(b) except he can stand and walk four hours in an eight-hour workday with occasional ability to climb ramps and stairs but no climbing of ladders, ropes, or scaffolds and occasional balancing, stooping, kneeling, crouching and crawling. He must avoid unprotected heights or hazardous machinery and concentrated exposures to extreme heat.
Tr. 15.
RFC is what an individual can still do despite his or her limitations. RFC is an administrative assessment of the extent to which an individual‘s medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities.
Social Security Ruling (“SSR“) 96-8p, 1996 WL 374184, at *2 (S.S.A. July 2, 1996). “The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts and nonmedical evidence (e.g., daily activities, observations).” Id. at *7; accord Cobb v. Astrue, 613 F. Supp. 2d 253, 258 (D. Conn. 2009);
The Court construes plaintiff‘s motion as contending that the ALJ‘s RFC determination was not supported by substantial evidence because it: (1) “erroneously relie[d] on [a] measurement of momentary strength as the basis for finding Plaintiff could endure the four hours of standing and walking and the frequent lifting and carrying required by ‘light work[,]‘” Doc. #20-2 at 5; (2) failed to consider plaintiff‘s need for assistive devices, see id. at 5-6, 8; (3) improperly considered plaintiff‘s course of treatment, see id. at 6-7; and (4) was “based on an incomplete, inaccurate and selective review of the medical evidence.” Id. at 7.9
1. Strength Determination
Plaintiff contends that the ALJ “Erroneously Conflated Strength with Endurance” when finding that “none of the medical records detail any significant loss of strength such that
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [plaintiff] must have the ability to do substantially all of these activities.
Plaintiff attacks the ALJ‘s observation that “the record shows reduced strength of 4/5 only in the lower left extremity.” Doc. #20-2 at 4; see also Tr. 19. Plaintiff argues: “The finding of a 4/5 reduction of strength in Plaintiff‘s left leg was a measurement of strength that would be relevant to his ability to lift and carry, and stand/walk, at any one moment. It is not relevant to performing functions during an 8-hour work day.” Doc. #20-2 at 5 (sic). But this was not the only factor relied upon by the ALJ in assessing the RFC. “The ALJ considered the entire record, as a whole, in determining” that plaintiff had the requisite strength to perform light work with additional postural limitations. Seekins v. Astrue, No. 3:11CV00264(VLB)(TPS), 2012 WL 4471266, at *8 (D. Conn. Aug. 14, 2012), report and recommendation adopted, 2012 WL 4471264 (Sept. 27, 2012).
For example, the ALJ relied on the reconsideration-level state agency medical consultant‘s findings that plaintiff had “light lifting capacity and standing and walking reduced to four hours in an eight-hour work day[.]” Tr. 20; see also Tr. 113, 135. Such findings are consistent with the ALJ‘s consideration of the record, which showed that plaintiff had limitations with strength primarily in his lower left extremity, see Tr. 1694, but also that he rejected recommended treatment methods, see Tr. 1576, and traveled internationally for extended periods beginning in 2018. See Tr. 1542, Tr. 1595; see also Villalobo v. Saul, No. 19CV11560(CS)(JCM), 2021 WL 830034, at *13 (S.D.N.Y. Feb. 9, 2021) (“It is entirely appropriate for the ALJ to consider activities of daily living in the RFC when they offer insight on how the claimant‘s impairments affect her ability to work and undertake activities of daily life.” (citations and quotation marks omitted)).
Taken together, these findings do not simply measure plaintiff‘s “momentary strength[.]” Doc. #20-2 at 5. Instead, they reveal that the ALJ comprehensively reviewed the record “as a whole[]” when determining that plaintiff had the requisite strength to perform light work with additional restrictions. Seekins, 2012 WL 4471266, at *8. In light of that comprehensive
2. Use of an Assistive Device
The Court construes plaintiff‘s brief as asserting that the ALJ erred by failing to consider plaintiff‘s use of an assistive device when formulating the RFC. See Doc. #20-2 at 5-6, 8. Specifically, plaintiff asserts that the ALJ (1) erroneously concluded that plaintiff did not use an assistive device before 2019, and (2) failed to account for plaintiff‘s post-2019 use of crutches in the RFC. See id. at 5, 8. Defendant responds that “The ALJ Correctly found that Plaintiff Did Not Use Ambulatory Assistive Devices Before Late 2019[,]” Doc. #25-1 at 7, and “the ALJ was not required to include the use of an ambulatory assistive device in the RFC.” Id. at 11.
The ALJ stated: “There are no reports for using assistive devices until late 2019 (Exhibit 41F).” Tr. 19. Plaintiff asserts that this “is simply erroneous[,]” and cites to various treatment records reflecting his self-reported use of an assistive device prior to 2019. Doc. #20-2 at 5; see also id. at 5-6 (citing Tr. 867, Tr. 925, Tr. 929, Tr. 958, Tr. 1102, Tr. 1106, Tr. 1550). Although the record reflects plaintiff‘s self-
The undersigned notes that the vocational expert further testified that the work as a hotel sales representative could still be performed with the use of a cane and/or elbow crutches[.] ... The undersigned stops short of adding these further limitations to the determined residual functional capacity (RFC) as the record fails to support that the claimant had these further level of ongoing limitations during the period at issue.
Tr. 22 (sic). Here, incorporating plaintiff‘s use of an assistive device into the RFC determination would not have impacted the ALJ‘s ultimate disability determination because the vocational expert testified that plaintiff‘s work as a hotel sales representative could still be performed with the use of an assistive device. See Tr. 22. Accordingly, any error on this
3. Consideration of MS Treatment
Plaintiff contends that the ALJ erred by finding “that Plaintiff did not accept treatment for his MS,” an “impression” that “is not[] supported by the record.” Doc. #20-2 at 6. Plaintiff‘s argument misconstrues the ALJ‘s decision.
Plaintiff asserts that “the ALJ maintains that she can discount all of the evidence of impairment because plaintiff did not follow all the recommended treatment, and, discounting all the evidence of impairment, plaintiff cannot be found to be disabled.” Doc. #26 at 10. However, the ALJ did not “discount all of the evidence of impairment[.]” Id. Rather, the ALJ permissibly considered both plaintiff‘s conservative treatment and failure to comply with treatment recommendations in reaching her decision. See, e.g., Dolan v. Berryhill, No. 17CV04202(GBD)(HBP), 2018 WL 4658804, at *17 (S.D.N.Y. July 24, 2018) (“A claimant‘s conservative treatment regimen is a relevant factor that an ALJ may consider in making [her] RFC determination.“), report and recommendation adopted, 2018 WL 3991496 (Aug. 21, 2018); Bessette v. Colvin, No. 2:14CV00164, 2015 WL 8481850, at *6 (D. Vt. Dec. 9, 2015) (“The Social Security regulations state: If you do not follow the prescribed treatment without a good reason, we will not find you disabled. And the Social Security Administration has determined that a claimant‘s statements may be less credible if the medical reports or records show that the individual is not following the treatment as prescribed and there are no good reasons for this failure.” (citations and quotation marks omitted)); SSR 82-59, 1982 WL 31384, at *2 (S.S.A. 1982) (“[C]ontinued failure to follow prescribed treatment without good reason can result in denial or termination of benefits.“).
Accordingly, the ALJ properly considered plaintiff‘s MS treatment, and there is no reversible error.
4. Consideration of Medical Records
Plaintiff contends that the ALJ‘s “finding that Plaintiff has a light RFC is based on an incomplete, inaccurate and selective review of the medical evidence.” Doc. #20-2 at 7. Defendant contends: “[T]he ALJ provided a complete and accurate review of the evidence[.] ... Rather, it is Plaintiff, who in
“[A]n ALJ is tasked with weighing all the evidence, including medical opinion evidence, in the record. Similarly, the ALJ may not cherry pick evidence. Cherry picking can indicate a serious misreading of evidence, failure to comply with the requirement that all evidence be taken into account, or both.” Carisma A. o/b/o T.A. v. Comm‘r of Soc. Sec., 516 F. Supp. 3d 301, 306 (W.D.N.Y. 2021) (citations and quotation marks omitted). However, “an ALJ is not required to address every aspect of the record in [her] opinion or comb the record to reconcile every conflicting shred of medical testimony.” Daniels v. Berryhill, 270 F. Supp. 3d 764, 775 (S.D.N.Y. 2017) (citation and quotation marks omitted).
Plaintiff asserts that the ALJ: (1) failed to account for treatment notes indicating that plaintiff‘s ability to exercise was more limited than other treatment notes suggested, see Doc. #20-2 at 10-12; (2) “[chose] not to discuss significant symptoms that persisted and were not resolved by [plaintiff‘s May 2017] back surgery and that would ultimately be attributed to MS[,]” id. at 9; and (3) “[did] not consider whether Plaintiff was in a remitting or relapsing state of his MS progression.” Id.
VI. CONCLUSION
For the reasons set forth herein, plaintiff‘s Motion to Reverse the Decision of the Commissioner [Doc. #20] is DENIED, and defendant‘s Motion for an Order Affirming the Decision of the Commissioner [Doc. #25] is GRANTED.
SO ORDERED at New Haven, Connecticut, this 23rd day of March, 2022.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES DISTRICT JUDGE