Opinion
1:21-CV-0278 (PAE) (JW)
08-09-2022
SANDRA GUADALUPE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
HONORABLE PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
JENNIFER E. WILLIS UNITED STATES MAGISTRATE JUDGE
Plaintiff Sandra Guadalupe brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (the “Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”) prior to February 19, 2020. Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons stated below, I recommend that this case be remanded for further proceedings.
Background
I. Procedural History
On March 29, 2019, Plaintiff submitted an application for DIB, asserting disability due to chronic asthma, a hernia, sacroiliac, cataract, sleep apnea, depression, arthritis, overactive bladder, high blood pressure, and iron deficiency. See Social Security Administration (“SSA”) Administrative Record (Dkt. No. 14) (hereinafter “R. ”), at 337-38, 358. Plaintiff's application was denied on June 20, 2019. R. 238. On October 29, 2019, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) (R. 265), which took place on April 10, 2020 before ALJ Kenneth Theurer. R. 183-211.
In a written decision dated April 23, 2020, the ALJ determined that Plaintiff was not disabled within the meaning of the Act before February 19, 2020 but became disabled on that date. R. 24. On April 29, 2020, Plaintiff requested Appeals Council review. R. 34-36. The Appeals Council denied that request on November 24, 2020, making the ALJ's determination final. R. 1. Plaintiff brought this action, contending that the ALJ erred by (1) not including a proper evaluation or consideration of Plaintiff's dizziness in his decision, (2) not including a sit stand option in his residual functional capacity (“RFC”) analysis, (3) failing to establish the effect of Plaintiff's obesity on her RFC, (4) failing to consider that Plaintiff's persistent efforts to obtain relief of pain and other symptoms enhance Plaintiff's credibility, (5) stating that Plaintiff's testimony related to her symptoms and limitations was inconsistent with the evidence of record, (6) not analyzing how Plaintiff's environmental limitations impact her ability to perform sedentary work and (7) failing to consider the possible side effects that Plaintiff's medications can have on Plaintiff's functional limitations. Dkt. No. 16 (“Pl. Mem.”).
II. Personal Background
Plaintiff was born on February 20, 1970. R. 10. Plaintiff lives with her son and grandson, and as of the date of the ALJ hearing, Plaintiff was working on obtaining a GED. R. 190-91. Plaintiff previously worked as a delivery driver and a bus driver. R. 191-93.
III. Plaintiff's Relevant Medical History
On October 11, 2018, Plaintiff was admitted to North Central Bronx Hospital for asthma exacerbation and stayed there until October 17, 2018. R. 504. Plaintiff became lightheaded after walking for five to six minutes. Plaintiff denied weakness and pain. Id. Plaintiff was treated with steroids IV and her symptoms improved before discharge. Id. On the day of her discharge, Plaintiff denied dizziness. R. 582. Throughout Plaintiff's medical records are references to Plaintiff's obesity. See e.g., R. 637 and 972.
On October 25, 2018, Plaintiff followed up with her primary care physician Dr. Sherman, who concluded that Plaintiff had asthma with acute exacerbation and a thyroid nodule. R. 675. Plaintiff denied headaches and dizziness. R. 674. Plaintiff continued to see Dr. Sherman in the months that followed. On January 14, 2019, Dr. Sherman reported that Plaintiff's asthma was “almost completely controlled.” R. 748. In April 2019, Dr. Sherman concluded that Plaintiff had a normal range of motion and strength and denied headaches, dizziness, and wheezing. R. 830-31. In July 2019, Plaintiff expressed concern that her medications were causing side effects. R. 922. Dr. Sherman stated that while Plaintiff's asthma was “well controlled” with medication, Plaintiff had many non-specific complaints that were “[m]ost likely related to depression.” R. 923.
From October 2018 to September 2019, Plaintiff saw pulmonologist Dr. Weinstein for her asthma as her condition improved and then declined. See R. 67172, 684, 701, 711, 713, 722, 739-40, 756, 768, 777, 787, 814, 845, 895, and 906. During some of her visits, Plaintiff reported feeling dizzy. See R. 701 and 737. In January 2019, Plaintiff had to stop her exercise tolerance test before Dr. Lorch due to dizziness, blurred vision, and shortness of breath. R. 734.
On January 14, 2019, Plaintiff saw Dr. Silverman and complained of dizziness, blurry vision and a sharp, shooting pain for a couple seconds daily. R. 742. After examining Plaintiff, Dr. Silverman stated that he “suspect[s]” Plaintiff has benign paroxysmal positional vertigo. R. 745. Dr. Silverman advised that Plaintiff get an MRI and do at home exercises that should “clear up the dizziness after a few days.” R. 745-46. Plaintiff's MRI depicted a normal, noncontrast MR appearance of the brain, mild paranasal sinus disease with trace left maxillary sinus air-fluid level, and a persistent small left mastoid effusion. R. 752. On February 8, 2019, Dr. Silverman concluded that Plaintiff's dizziness was “[l]argely resolved.” R. 765.
On April 12, 2019, Plaintiff's chest x-ray revealed no acute pulmonary findings. R. 512. Her chest CT scan found scattered bilateral patchy ground glass opacities and a two-centimeter hypodense left thyroid nodule. Id. Plaintiff was alert and oriented with no vision or hearing deficits. R. 528. Plaintiff had no mobility limitations and was able to make changes in her position without assistance. Id.
On April 25, 2019, Plaintiff saw rheumatologist Dr. Wachs for a consultation at Dr. Weinstein's request. Plaintiff reported pain in her muscles and joints. R. 825. After examining Plaintiff, Dr. Wachs found that Plaintiff had elements of fibromyalgia. R. 827. Plaintiff continued to see Dr. Wachs for her fibromyalgia and polymyositis through July 2019. R. 884, 910. Plaintiff followed up with Dr. Cushner as well regarding her body pains in May 2019. During a spinal exam of Plaintiff, Dr. Cushner concluded that Plaintiff had, among other things, an abnormal gait and abnormal muscle strength, and diagnosed her with lumbar radiculopathy. R. 849-51. X-rays of Plaintiff's bilateral knees showed severe medical compartment osteoarthritis. R. 850. Dr. Wachs referred Plaintiff to Dr. Dousmanis for an electromyography and nerve conduction study. Dr. Dousmanis concluded that the study was normal, without electrophysiologic evidence of polyneuropathy or myopathy. R. 859. There were no findings of muscle irritability or myopathic motor units either. Id. Plaintiff's radiographic examination of her lumbar spine proved “[u]nremarkable” (R. 866), though Plaintiff continued to report back pain that radiated to her lower extremities. R. 876.
On May 13, 2019, Dr. Schwartz examined Plaintiff, who complained of pain throughout her body. R. 608. Dr. Schwartz stated that Plaintiff could stand, but not walk, on heels and toes, and could squat fully. Plaintiff's stance was normal, and plaintiff did not use assistive devices. Plaintiff did not need help changing for the exam but required some help getting on and off the exam table. Lastly, plaintiff was able to rise from the chair, but with some difficulty. R. 610. Dr. Schwartz concluded that Plaintiff “should avoid smoke, dust, and other known respiratory irritants because of her history of asthma. [Plaintiff] has marked limitations for standing, walking, squatting, and kneeling because of her right knee discomfort.” R. 612. Plaintiff also had “[m]oderate limitations in her ability to sit, climb, push, pull, or carry heavy objects.” Id.
Dr. Mohanty reviewed Plaintiff's records on June 17, 2019. Without examining Plaintiff, Dr. Mohanty concluded that Plaintiff's “statements concerning the intensity, persistence and limiting effects of [her alleged] symptoms are generally not consistent with the evidence of record.” R. 219. Dr. Mohanty stated that Plaintiff could frequently lift and/or carry ten pounds and occasionally lift and/or carry 20 pounds. Plaintiff could stand and/or walk and sit for about six hours in an eight-hour workday. R. 220. Plaintiff was capable of light work and was not disabled. R. 22223. Dr. Stradley reviewed Plaintiff's records and came to the same conclusions. R. 234-37.
Plaintiff's August 2019 MRI of her lumbar spine appeared normal with “[s]mall disc bulges at ¶ 4-L5 and L5-S1 without significant interval change.” R. 942-43. On September 11, 2019, Plaintiff had an epidural injection in her lumbar spine. R. 975. On October 12, 2019, Manual Marquez, NP found mild and moderate restriction in movement in Plaintiff's lumbar spine and was unable to complete his physical examination of Plaintiff due to Plaintiff's pain. R. 1002.
IV. Hearing
On April 10, 2020, Plaintiff appeared with her non-attorney representative Yocasta Duran for a hearing before ALJ Kenneth Theurer. R. 15. The hearing was held via telephone from Syracuse, New York. R. 185. Elizabeth Laflamme, the vocational expert (“VE”), was also present. Id.
A. Plaintiff's Testimony
The ALJ began by asking Plaintiff about who lived with her, her education, and her past jobs. Plaintiff stated that she lived with her son and grandson and was working on her GED. R. 190-91. In 2005 and 2006, Plaintiff was a driver for UTF Trucking. As a driver, she delivered food to Fresh Direct customers, which entailed loading and unloading deliveries to and from a truck. R. 191-92. In 2007, Plaintiff switched jobs and drove a bus in and around New York City. R. 192-93. Plaintiff stopped working as a bus driver on October 10, 2018. R. 193.
Plaintiff testified that her low back, right knee, right hand, shoulder, and asthma affect her ability to work. R. 194. Plaintiff stated that she has received cortisone injections in her back and takes pain medication for her knee, hand, and shoulder. R. 194-95. Plaintiff stated she tried physical therapy but could not finish because she was in too much pain. R. 195. At the time of the hearing, Plaintiff testified she was only taking over-the-counter ibuprofen and Tylenol. Id. She stated she has not seen a doctor or received mental health treatment because she has no insurance. Id. Plaintiff stated that she has COPD, asthma, sleep apnea, and allergies. R. 196.
In a typical day, Plaintiff contended that she washes the dishes, works around her house, cooks if she can, and tries to stretch. R. 195. Plaintiff can walk one or two blocks at a time. Id. Plaintiff can carry a gallon of milk. Id. Plaintiff stated that she cannot stand or sit for long periods of time, and when she stands, her legs get numb. R. 196. She can drive or walk to go shopping five to ten minutes away, but her son comes with her. Id. Plaintiff can dress and do laundry but must do so slowly and sit down for a little bit. Id.
When examined by her non-attorney representative, Plaintiff stated that she cooks once or twice a week, and her son cooks the rest of the time and reiterated that she cannot go shopping alone. R. 197. Plaintiff testified that she feels she cannot do her past jobs because of her back, arms, and knees. She does not “have the strength [she] had before.” |d. When she drives, her “knee gets tensed up a little.” |d. Plaintiff stated that she used to draw, walk a lot, go to the gym, and do her own laundry and groceries, but now she cannot do those things on her own. R. 197-98.
Plaintiff testified that before she lost her insurance, she was on the following medications: gabien, tramadol, dulocteline, prednisone, singulair, pro-air pump, symbicort pump, asthma pump, and another medication of which she forgot the name. R. 198. As side effects from these medications, Plaintiff stated she threw up once, and experienced lightheadedness, dizzy spells, heart palpitations, headaches, and a dry and harsh voice. Id. When asked how often she experienced these side effects, Plaintiff stated, “I'm not taking the medication consistently, but I noticed a couple days after that kicked in.” Id.
Plaintiff rated the pain in her lower back an 8 out of 10, in her right knee a 7 out of 10, and in her shoulder a 6 or 7 out of 10. R. 199. Plaintiff uses a cane on days when she “can't take the pain and [] need[s] to go out” for balance and ambulation. R. 199-200. Plaintiff testified that she has difficulty sleeping at least five times a week due to her pain. R. 200. Plaintiff stated that she can sit for 15 to 20 minutes at a time before experiencing pain. Then, she must get up and hold onto something because she gets off balance. Id. When she sits, Plaintiff stated that she must use pillows for cushions and have her leg elevated to be comfortable. R. 201. Plaintiff has problems kneeling, bending, reaching forward and overhead, and using her hands. R. 201-02. Plaintiff takes over-the-counter pain medication daily, two to three times a day. R. 202. Plaintiff experiences the most pain in her lower back daily, and her leg depending on what she is doing. Id.
B. VE Testimony
VE Laflamme identified the DOT codes and SVP numbers for Plaintiff's past jobs (delivery driver and bus driver). R. 204. VE Laflamme stated that Plaintiff's past jobs do not give Plaintiff transferrable skills. R. 205. The ALJ then provided a hypothetical assuming an individual with the same age, education, and vocational history as Plaintiff:
Can occasional[ly] lift and carry 20 pounds, frequently lift and carry ten pounds, sit for up to six hours and stand or walk for approximately six hours in an eight-hour day with normal breaks. Occasionally climb a ramp or stair, can never climb ladders, ropes or scaffolds. Could perform occasional balancing, stooping, kneeling, crouching and crawling. Would have to avoid even moderate exposure to smoke, dust and respiratory irritants.R. 206. VE Laflamme stated that such an individual could not perform Plaintiff's past work. R. 206. However, the individual could work the following light-level jobs: price marker, mail sorter, and electronic assembler. Id.
The ALJ provided a second hypothetical assuming an individual with the same age, education, and vocational history as Plaintiff:
Can occasionally lift and carry ten pounds, can sit for approximately six hours and stand and walk for approximately two hours in an eight-hour day with normal breaks. Could occasionally climb a ramp or stair. Could never climb ladders, ropes or scaffolds. Can occasionally balance, stoop, kneel, crouch and crawl....[W]ould have to avoid even moderate exposure to smoke, dust and respiratory irritants.R. 206-07. VE Laflamme stated that such an individual could work the following sedentary level jobs: document preparer, addresser, and escort driver. R. 207.
The ALJ then asked whether an individual who cannot “sit, stand or walk for a total of eight hours in an eight-hour day, in other words, the sum total of their ability to sit, stand or walk” is less than eight hours, can have full-time, competitive employment. Id. VE Laflamme stated that such an individual could not have fulltime, competitive employment. Id.
VE Laflamme testified that based on her experience, employers will allow ten percent off-task behavior before providing warnings to employees. If the employee continues such behavior after receiving warnings, the employee will lose his or her job. R. 207-08. Additionally, employers “will allow one absenteeism per month, which includes arriving late and leaving early.” R. 208. VE Laflamme concluded that both hypothetical individuals could perform the stated light- and sedentary-level jobs with a sit/stand option every 15 minutes for five minutes so long as the individuals are on task during the five minutes between sitting and standing. R. 209. If the individuals are off task during those five minutes, they will not be able to perform those jobs. Id. The only exception is an escort driver, who would not be able to have the sit/stand option. A toy stuffer could replace an escort driver, as it is a sedentary job with a sit/stand option. R. 210. All the aforementioned jobs would be eliminated if the hypothetical individuals had an issue with occasional handling, fingering, and feeling. Id.
C. The ALJ's Decision
The ALJ concluded that Plaintiff has been disabled since February 19, 2020 but was not disabled before then. R. 24. Following the five-step test set forth in SSA regulations, the ALJ found at step one that Plaintiff “has not engaged in substantial gainful activity since the alleged onset date.” R. 17. At step two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine, fibromyalgia, osteoarthritis of the knee, asthma, and obesity. Id. The ALJ also noted that Plaintiff's depression and anxiety are non-severe impairments. R. 18. At step three, the ALJ concluded that Plaintiff does not have “an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” R. 19. The ALJ considered Listings 1.02 and 1.04 and found no evidence that Plaintiff's knee impairment or degenerative disc disease of the lumbar spine results in an inability to ambulate effectively as defined by the Regulations. Id. The ALJ also found that Plaintiff's respiratory impairment does not satisfy the requirements of Listings 3.02 and 3.03. Id.
Before moving to step four, the ALJ assessed Plaintiff's RFC. The ALJ determined that Plaintiff retained the RFC “to perform sedentary work as defined in 20 CFR 404.1567(a) except she is able to occasionally lift and carry ten pounds. She can sit for approximately six hours and stand or walk for approximately two hours in eight hour day with normal breaks. [Plaintiff] is able to occasionally climb ramps or stairs, but never climb ladders, ropes or scaffolds. She can occasionally balance, stoop, kneel, crouch, and crawl. [Plaintiff] should avoid even moderate exposure to smoke, dust, and respiratory irritants.” R. 19-20. The ALJ found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical evidence and other evidence in the record. R. 20.
At step four, the ALJ held that Plaintiff is unable to perform any past relevant work given her RFC. R. 22. At step five, the ALJ found that prior to February 19, 2020, the date Plaintiff turned 50 years old, there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed given her RFC, age, education, and work experience. Id. Prior to February 19, 2020, transferability of job skills was not material to the determination of disability. Id. However, as of February 19, 2020, there are no jobs that exist in significant numbers in the national economy that Plaintiff can perform. Given Plaintiff's age, education, and work experience, “a finding of ‘disabled' is reached by direct application of Medical-
Vocational Rule 201.10.” R. 23. Plaintiff's “disability is expected to last twelve months past the onset date.” R. 24.
STANDARDS OF LAW
I. Scope of Judicial Review Under 42 U.S.C. § 405(g)
“After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
“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.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam) (citation and internal quotation marks omitted). “Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam) (citation and internal quotation marks omitted). Substantial evidence is “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citations omitted). “Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.” Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (internal citations omitted).
II. Standard Governing Evaluation of Disability Claims by the SSA
To qualify for disability benefits, an individual must be 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Social Security Administration's regulations establish a five-step process for determining a disability claim. See 20 C.F.R. § 416.920(a)(4).
If at any step a finding of disability or nondisability can be made, the SSA will not review the claim further. At the first step, the agency will find nondisability unless the claimant shows that he is not working at a “substantial gainful activity.” §§ 404.1520(b), 416.920(b). At step two, the [Social Security Administration] will find nondisability unless the claimant shows that he has a “severe impairment,” defined as “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” §§ 404.1520(c), 416.920(c). At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. §§ 404.1520(d), 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the [Social Security Administration] assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the [Social Security Administration] to consider so-called “vocational factors” (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy.Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 379-80 (2003).
“The applicant bears the burden of proof in the first four steps of the sequential inquiry; the Commissioner bears the burden in the last.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). “Because a hearing on disability benefits is a nonadversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.” Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999).
A. Evaluation of Medical Evidence
The Commissioner must consider several factors when considering the weight to give medical opinions in the record. See 20 C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c). The factors are: (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) other factors. The ALJ must explain her approach to the first two factors but need not do so for the remaining factors. 20 C.F.R. §§ 404.1520c(b), 416.920c(b).
Supportability looks at how well a medical source supported and explained his/her opinions about the patient. The persuasiveness of a medical opinion increases as the relevance of the objective medical evidence and explanations increases. 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). Consistency looks at whether a medical provider's findings and opinions are consistent with those of other medical providers and medical evidence. The more consistent a particular medical source/opinion is with other evidence in the medical record, the more persuasive that medical opinion becomes. 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(3).
The third factor-relationship with the claimant-incorporates the following five sub-factors: (i) length of treatment; (ii) frequency of examinations (longitudinal understanding); (iii) purpose of the treatment; (iv) extent of the treatment (detail of understanding); and (v) examining relationship (i.e., in-person vs. consulting only). 20 C.F.R. §§ 404.1520c(c)(3)(i)-(v), 416.920c(c)(3)(i)-(v). Specialization recognizes that a specialist giving an opinion within their specialty may be more persuasive than an opinion given by a non-specialist or a specialist in a less relevant field. 20 C.F.R. §§ 404.1520c(c)(4), 416.920c(c)(4). The fifth factor includes anything else that may “tend to support or contradict a medical opinion.” 20 C.F.R. §§ 404.1520c(c)(5), 416.920c(c)(5).
DISCUSSION
Plaintiff raises six grounds for reversing the ALJ's decision: the ALJ erred by (1) not including a proper evaluation or consideration of Plaintiff's dizziness in his decision, (2) not including a sit stand option in his RFC analysis, (3) failing to establish the effect of Plaintiff's obesity on her RFC, (4) failing to consider that Plaintiff's persistent efforts to obtain relief of pain and other symptoms enhance Plaintiff's credibility, (5) stating that Plaintiff's testimony related to her symptoms and limitations was inconsistent with the evidence of record, (6) not analyzing how Plaintiff's environmental limitations impact her ability to perform sedentary work, and (7) failing to consider the possible side effects that Plaintiff's medications can have on Plaintiff's functional limitations. Pl. Mem.
I. Dizziness
Plaintiff argues that the ALJ's decision “does not contain a proper evaluation or consideration of” Plaintiff's dizziness. Pl. Mem. at 15. Defendant contends that “Plaintiff has not shown that her dizziness or vertigo was a medically determined impairment.” Dkt. No. 18 (“Def. Mem.”) at 15. Although Plaintiff complained of dizziness repeatedly in the record, Dr. Silverman concluded that Plaintiff's dizziness had “largely resolved” by February 2019. R. 765. Physical examinations of Plaintiff found that despite occasional complaints about being dizzy, Plaintiff appeared alert and oriented. See e.g., R. 432. At the ALJ hearing, Plaintiff stated that her lower back, right knee, right hand, shoulder, and asthma “affect [her] ability to work.” R. 194. Plaintiff did not state that her dizziness impacted her work. Plaintiff did not mention her alleged dizziness in the disability reports submitted in association with her claim either. R. 358, 385-402. There is no evidence in the record that Plaintiff was treated for her alleged dizziness or that her dizziness limited her in any way. Accordingly, Plaintiff has not shown that the ALJ erred in declining to assess Plaintiff's dizziness.
Even if the ALJ did err, such error was harmless. Assessing Plaintiff's dizziness would not have changed this Court's decision given that Plaintiff did not set forth any evidence that her condition lasted 12 consecutive months and was considered a medically determined impairment. See Jackson v. Kijakazi, No. 20-CV-7476 (JLC), 2022 WL 620046, at *13 (S.D.N.Y. Mar. 3, 2022) (holding that the Court need not remand for harmless error “where the ‘application of the correct legal principles to the record could lead only to the same conclusion'”) (internal citation omitted).
II. Sit Stand Option
Plaintiff argues the ALJ did not properly evaluate Plaintiff's RFC because he did not include a sit stand option in his analysis. Pl. Mem. at 17. Defendant is correct that Dr. Schwartz's assessment of marked limitations for standing, walking, squatting, and kneeling, and moderate limitations for sitting, climbing, pushing, pulling, and carrying heavy objects did not require the ALJ to include a sit stand option in his RFC analysis. Def. Mem. at 18. While Plaintiff testified that she can only sit for 15 to 20 minutes before having to get up due to pain (R. 200), the medical evidence does not indicate that Plaintiff required a sit stand option. See German v. Commissioner of Social Security, No. 19-CV-3328 (AT) (SDA), 2020 WL 5899521, at *9 (S.D.N.Y. May 27, 2020) (stating that the ALJ did not ignore a sit stand limitation because the medical evidence did not indicate plaintiff was so limited). Even if Plaintiff is correct, such error was harmless. The VE identified jobs Plaintiff could perform with her RFC even if Plaintiff had to switch positions from sitting to standing every 15 minutes. R. 209. Accordingly, Plaintiff has not shown that the ALJ erred on this ground.
III. Obesity
Plaintiff argues that the ALJ erred by not considering Plaintiff's obesity in her RFC assessment. Pl. Mem. at 18. Defendant states that the ALJ did consider Plaintiff's obesity in her RFC assessment and found the report of Dr. Schwartz, who stated Plaintiff was obese, to be “persuasive in support of the RFC.” Def. Mem. at 17. Although “[o]besity is not a listed impairment[,] . . . the functional limitations caused by the MDI of obesity, either alone or in combination with another impairment(s), may medically equal a listing” or otherwise “increase the severity or functional limitations of the other impairment(s).” SSR 19-2p, 84 Fed.Reg. at 22,926. Therefore, under SSR 19-2p, an ALJ must “consider all work-related physical and mental limitations, whether due to a person's obesity, other impairment(s), or combination of impairments,” and “explain how [he] reached [his] conclusion on whether obesity causes any limitations.” Id.
Plaintiff is correct that the ALJ does not refer to obesity in the RFC assessment. In fact, the ALJ refers to Plaintiff's obesity only once when he determines that Plaintiff's obesity is a severe impairment. R. 17. “However, an ALJ's failure to explicitly address a claimant's obesity does not necessarily warrant remand where the claimant's treating or examining sources did not consider it a significant factor limiting his or her ability to perform work related activities.” Negron v. Saul, No. 19-CV-7547 (KMK) (JCM), 2021 WL 465768, at *16 (S.D.N.Y. Feb. 8, 2021); see also Bonilla-Bukhari v. Berryhill, 357 F.Supp.3d 341, 353 (S.D.N.Y. 2019) (“[T]he ALJ's obligation to discuss a claimant's obesity alone, or in combination with other impairments, diminishes where evidence in the record indicates the claimant's treating or examining sources did not consider obesity as a significant factor in relation to the claimant's ability to perform work related activities.”) (internal quotation omitted).
Here, while the ALJ did not explicitly discuss Plaintiff's obesity beyond recognizing it as a severe impairment, he considered the opinion of Dr. Schwartz, who considered Plaintiff's weight and observed that Plaintiff was obese during a May 13, 2019 examination. R. 611. The record contains many references to Plaintiff's BMI above 30. See e.g., R. 93, 105, 111, 466, 471, 493, 517, 640, 663, 678, 690, 708, 716, 736, 747, 762, 774, 789, 811, 824. However, the record is devoid of any medical opinions or treatment notes that suggest obesity exacerbated Plaintiff's other impairments or caused any work-related limitations. Obesity was never marked as an impairment or as a factor in Plaintiff's pain and limitations. Consequently, “‘the record reflects that plaintiff's treating and consultative examining medical sources were aware of plaintiff's obesity, but there is no indication that any medical source attributed any symptoms, limitations of function, or exacerbation of other impairments to her weight.'” Bonilla-Bukhari, 367 F.Supp.3d at 353-54 (quoting Battle v. Colvin, No. 13-CV-547-JTC, 2014 WL 5089502, at *5 (W.D.N.Y. Oct. 9, 2014)). See also Rivera v. Berryhill, No. 15-CV-0487-MAT, 2018 WL 375846, at *4 (W.D.N.Y. Jan. 11, 2018).
Moreover, Plaintiff did not include obesity in the disability reports submitted in association with her claim (R. 358, 385-402), and she did not mention obesity at the hearing when the ALJ asked her why she could not work. R. 194. See Rivera, 2018 WL 375846, at *4. Plaintiff did not state obesity as a reason she cannot do her past jobs when questioned by her representative at the hearing (R. 197), and her representative did not question her about her obesity either. R. 197-202. Accordingly, the Court finds that the ALJ's decision sufficiently accounted for Plaintiff's obesity.
IV. Persistent Efforts to Obtain Relief of Pain and Other Symptoms
The ALJ properly identified the required two-step process for evaluating Plaintiff's symptoms: first determine “whether there is an underlying medically determinable physical or mental impairment(s),” and second, once such an impairment has been shown, “evaluate the intensity, persistence, and limiting effects of [Plaintiff's] symptoms to determine the extent to which they limit [Plaintiff's] work-related activities.” R. 20. Social Security Ruling (“SSR”) 16-3p states that “[p]ersistent attempts to obtain relief of symptoms, such as increasing dosages and changing medications, trying a variety of treatments, referrals to specialists, or changing treatment sources may be an indication that an individual's symptoms are a source of distress and may show that they are intense and persistent.”
Plaintiff contends that the ALJ failed to consider Plaintiff's persistent efforts to obtain relief of pain and other symptoms, which strengthens the credibility of her testimony. Pl. Mem. at 19. Defendant argues that the ALJ considered Plaintiff's objective deficits and incorporated significant restrictions in the RFC determination. Def. Mem. at 20. Defendant states that the ALJ discussed Plaintiff's treatment efforts and found that they do not preclude the performance of sedentary work. Id.
The ALJ did note some of Plaintiff's efforts to obtain relief of pain and other symptoms. R. 20-21. Yet, the ALJ cherry-picked certain medical visits to conclude that Plaintiff's pulmonary function was normal and stable. R. 21. The complete history of Plaintiff's asthma demonstrates a different picture, and the ALJ failed to address Plaintiff's robust history seeing Dr. Weinstein, who concluded in September 2019 that Plaintiff had severe, persistent asthma. R. 973. Similarly, the ALJ addressed Plaintiff's history of reported back and knee pain in part, referencing only a May 2019 consultative examination and Plaintiff's May 2019 knee x-rays and August 2019 lumbar spine MRI. R. 21. The ALJ did not discuss, however, Plaintiff's extensive history seeing various doctors to treat her body pain. See supra at 3-6; Dkt. No. 14. Therefore, remand is warranted on the ground that the ALJ failed to properly evaluate Plaintiff's persistent efforts to obtain relief of pain and other symptoms. On remand, the ALJ must thoroughly evaluate Plaintiff's efforts as required pursuant to Social Security Ruling 16-3p. This evaluation is necessary to assess the credibility of Plaintiff's statements.
V. Plaintiff's Testimony Related to her Symptoms and Limitations
Plaintiff also states that the ALJ incorrectly concluded that Plaintiff's testimony related to her symptoms and limitations is inconsistent with the record because the ALJ found that Plaintiff had severe impairments. Pl. Mem. at 20-21. Defendant argues that Plaintiff's testimony is inconsistent with “the objective medical evidence, including the improvement in Plaintiff's pulmonary functioning and her ability to perform various daily activities, such as being able to cook, clean, shop, do laundry, perform personal care, socialize with others, drive and use public transportation.” Def. Mem. at 22. “[T]he RFC for a reduced range of sedentary work was supported by Plaintiff's medical record, which reflected Plaintiff's normal gait, normal balance, and good extremity strength at multiple treatment visits, improved pulmonary functioning, and ability to perform various activities of daily living; Dr. Schwartz's opinion, which was consistent with the RFC; as well as the opinions of Drs. Mohanty and Stradley, who assessed that Plaintiff was less restricted than the ALJ had found.” Id. at 23.
Yet, “[a]n individual can perform . . . daily activities and still experience debilitating pain at the intensity and persistence and with the limiting effects [she] claims.” Larsen v. Astrue, No. 12-CV-00414 (CBA), 2013 WL 3759781, at *3 (S.D.N.Y. July 15, 2013). “The Second Circuit has repeatedly recognized that ‘[a] claimant need not be an invalid to be found disabled.'” Colon v. Astrue, No. 10-CV-3779 (KAM), 2011 WL 3511060, at *14 (E.D.N.Y. Aug. 10, 2011) (quoting Williams v. Bowen, 859 F.2d 255, 260 (2d Cir. 1988)). “Indeed, it is well-settled that the performance of basic daily activities does not necessarily contradict allegations of disability, as people should not be penalized for enduring the pain of their disability in order to care for themselves.” Cabibi v. Colvin, 50 F.Supp.3d 213, 238 (E.D.N.Y. 2014) (internal quotation and citations omitted).
The ALJ's recitation of Plaintiff's daily activities fails to mention that while Plaintiff can do laundry and dress herself slowly, she must “sit down for a little bit.” R. 196. Plaintiff can only walk one to two blocks at a time. R. 195. She cannot sit or stand for long. R. 196. Plaintiff requires her son's assistance to shop (Id.), drives only five to ten minutes away because her knees tense up, (R. 196-97) and only cooks “if [she] can” once or twice a week. R. 195. Otherwise, Plaintiff's son cooks for her. R. 197. Additionally, Plaintiff's ability to perform some daily activities to a certain extent does not mean that Plaintiff can perform sedentary work. See Archambault v. Astrue, No. 09-CV-6363 (RJS) (MHD), 2010 WL 5829378, at *30 (S.D.N.Y. Dec. 13, 2010) (“Plaintiff's ability to engage in certain limited daily activities does not provide evidence of his ability to perform sedentary work unless he can perform those daily activities at a level consistent with the demands of sedentary work.”), report and recommendation adopted, 2011 WL 649665 (S.D.N.Y. Feb. 17, 2011).
Defendant's reference to Drs. Mohanty's and Stradley's opinions is also inconsistent with the ALJ's finding. The ALJ stated that Drs. Mohanty's and Stradley's opinions were “less persuasive due to the lack of a direct examination of [Plaintiff], the opinion[s] [are] not consistent with the evidence in the overall record, and the record was developed further after the opinions were issued[.] [T]herefore[,] the[ir] opinions are not based on the entire record.” R. 22. Moreover, the ALJ stated that Plaintiff's “asthma was noted as improved[] (Ex.21F, p. 59, 65)” in December 2018 and her “August 2019 pulmonary function test demonstrated normal spirometry and gas transfer. (Ex.21F, p.310). Her pulmonary function was noted as being normal and stable. (Ex.21F, p.312).” R. 21. The cited pages of the record actually state that in December 2018, Plaintiff's asthma was not at “baseline” and in August 2019, Plaintiff's asthma was noted as “persistent, severe.” R. 948. In September 2019, Plaintiff's treating doctor for asthma, Dr. Weinstein, found Plaintiff's asthma to be “persistent, severe” as well. R. 906.
Accordingly, the ALJ's discrediting of Plaintiff's stated symptoms based on improved pulmonary functioning[] and ability to perform various activities of daily living; . . . as well as the opinions of Drs. Mohanty and Stradley,” is not supported by substantial evidence and warrants remand.
VI. Environmental Limitations
Plaintiff argues the ALJ erred by not analyzing how Plaintiff's environmental limitations impact her ability to perform sedentary work. Pl. Mem. at 21. As
Defendant correctly indicates, however, the ALJ's hypotheticals involved an individual who would have to avoid even moderate exposure to smoke, dust, and respiratory irritants. Def. Mem. at 21. The VE testified that such an individual could perform sedentary jobs. R. 206-07. Therefore, the ALJ did not err on this ground.
VII. Medications' Side Effects
Lastly, Plaintiff argues the ALJ did not consider the possible side effects that Plaintiff's medications can have on Plaintiff's functional limitations. Pl. Mem. at 22. Defendant states that Plaintiff fails to cite any medical records showing side effects rendering the ALJ's RFC analysis unreasonable, and the medical records do not conclusively link Plaintiff's complaints of dizzy spills, lightheadedness, and heart palpitations to her medication. Def. Mem. at 20.
Social Security regulations require the Commissioner to consider “[t]he type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms.” 20 C.F.R. §§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv). However, those regulations also expressly state:
statements about your pain or other symptoms will not alone establish that you are disabled. There must be objective medical evidence from an acceptable medical source that shows you have a medical impairment(s) which could reasonably be expected to produce the pain or other symptoms alleged and that, when considered with all of the other evidence (including statements about the intensity and persistence of your pain or other symptoms which may reasonably be accepted as consistent with the medical signs and laboratory findings), would lead to a conclusion that you are disabled.
Your symptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness, will not be found to affect your ability to do basic work activities unless medical signs or laboratory findings show that a medically determinable impairment(s) [which could reasonably be expected to produce the pain or other symptoms alleged] is present.20 C.F.R. §§ 404.1529(a)-(b), 416.929(a)-(b). As explained in SSR 16-3p, an ALJ must evaluate claimed symptoms “using a two-step process set forth in [20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) ].”; accord Cichocki v. Astrue, 534 Fed.Appx. 71, 76 (2d Cir. 2013) (summary order). The factors at step two include a consideration of side effects, but they also include daily activities, reported pain or other symptoms, “precipitating and aggravating factors,” treatment besides medication, coping measures the claimant uses, and “[o]ther factors concerning [the claimant's] functional limitations and restrictions due to pain or other symptoms.” 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii).
Here, the record contains no corroborating information for Plaintiff's alleged side effects. At one doctor's appointment, Plaintiff stated she was worried about the potential side effects of medication (R. 922, 924), but the record does not link these effects to Plaintiff's medications. The ALJ therefore did not omit a discussion of potentially significant factors without explanation. See Sabater v. Colvin, No. 12-CV-4594 (KMK) (JCM), 2016 WL 1047080, at *6-7 (S.D.N.Y. Mar. 10, 2016) (finding side effects not supported by the record). We can “glean the rationale” of the ALJ's decision to omit any limitations due to alleged side effects of Plaintiff's medications from the complete lack of evidence in the record to support Plaintiff's position. See Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983). Accordingly, this Court finds no error in the ALJ's decision not to incorporate the side effects of Plaintiff's medications into a discussion of Plaintiff's RFC or into the resulting RFC itself.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Commissioner's decision denying DIB be REMANDED for further proceedings in accordance with this recommendation.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Paul A. Engelmayer, United States District Judge, 40 Foley Square, Room 2201, New York, New York 10007 and to the Chambers of the undersigned, 40 Foley Square, Room 425, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Engelmayer. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983) (per curiam).