Cullen v. Kijakazi

Full title: CHARLES CULLEN, Plaintiff, v. KILOLO KIJAKAZI[1] Acting Commissioner…

Court: United States District Court, S.D. New York

Date published: Feb 9, 2024

23-CV-1690 (AS) (RWL) (S.D.N.Y. Feb. 9, 2024)

Opinion

23-CV-1690 (AS) (RWL)

02-09-2024

CHARLES CULLEN, Plaintiff, v. KILOLO KIJAKAZI[1] Acting Commissioner, Social Security Administration, Defendant.

ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.

REPORT AND RECOMMENDATION TO HON. ARUN SUBRAMANIAN: SOCIAL SECURITY APPEAL

ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.

On February 28, 2023, Plaintiff Charles J. Cullen (“Cullen” or “Plaintiff”), represented by counsel, commenced the instant action against then Acting Commissioner Kilolo Kijakazi (the “Commissioner” or “Defendant”) of the Social Security Administration (the “SSA”) pursuant to the Social Security Act (the “Act”), 42 U.S.C. § 405(g), seeking review of the Commissioner's decision that Cullen is not disabled and therefore not entitled to Disability Insurance Benefits (“DIB”). Cullen applied for DIB on August 1, 2012, and, since then, has testified in a hearing before an Administrative Law Judge (“ALJ”) three times and been denied DIB by an ALJ each time; this is his third civil action appealing the denial of DIB. Cullen moves for judgment on the pleadings, reversal of the latest ALJ decision, and remand to the Commissioner solely for calculation of DIB. Cullen alleges, first, that the ALJ failed to consider the combined impact of Cullen's obstructive sleep apnea (“OSA”) and morbid obesity, and, second, that the ALJ's adverse credibility determination with respect to Cullen is not supported by the record. The Commissioner cross-moves for judgment on the pleadings, asking the Court to affirm the ALJ's decision. For the reasons explained below, I recommend that Cullen's motion be DENIED, and the Commissioner's motion be GRANTED.

APPLICABLE LAW

A. Standard Of Review

A United States District Court may affirm, modify, or reverse (with or without remand) a final decision of the Commissioner. 42 U.S.C. § 405(g); Skrodzki v. Commissioner of Social Security Administration, 693 Fed.Appx. 29, 29 (2d Cir. 2017) (summary order). The inquiry is “whether the correct legal standards were applied and whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004); accord Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).

“‘Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.'” Douglass v. Astrue, 496 Fed.Appx. 154, 156 (2d Cir. 2012) (quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (remanding for noncompliance with regulations)). Courts review de novo whether the correct legal principles were applied and whether the legal conclusions made by the ALJ were based on those principles. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (reversing where the court could not “ascertain whether [the ALJ] applied the correct legal principles ... in assessing [plaintiff's] eligibility for disability benefits”); Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (reversing where the Commissioner's decision “was not in conformity with the regulations promulgated under the Social Security Act”); Thomas v. Astrue, 674 F.Supp.2d 507, 515, 520 (S.D.N.Y. 2009) (reversing for legal error after de novo consideration).

If the reviewing court is satisfied that the ALJ applied the correct legal standards, then the court must “‘[c]onduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision.'” Brault v. Social Security Administration, Commissioner, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). Substantial evidence is defined as “‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Biestek v. Berryhill, 587 U.S. __,, 139 S.Ct. 1148, 1154 (2019) (reaffirming same standard). “The substantial evidence standard means once an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448 (internal quotation marks omitted) (emphasis in original); see also 42 U.S.C. § 405(g) (“findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive”).

To be supported by substantial evidence, the ALJ's decision must be based on consideration of “all evidence available in [the claimant]'s case record.” 42 U.S.C. § 423(d)(5)(B). The Act requires the ALJ to set forth “a discussion of the evidence” and the “reasons upon which [the decision] is based.” 42 U.S.C. § 405(b)(1). While the ALJ's decision need not “mention[ ] every item of testimony presented,” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam), or “‘reconcile explicitly every conflicting shred of medical testimony,'” Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983)), the ALJ may not ignore or mischaracterize evidence of a person's alleged disability. See Ericksson v. Commissioner of Social Security, 557 F.3d 79, 82-84 (2d Cir. 2009) (mischaracterizing evidence); Kohler, 546 F.3d at 268-69 (overlooking and mischaracterizing evidence); Ruiz v. Barnhart, No. 01-CV-1120, 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring evidence).

Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). The Court must afford the Commissioner's determination considerable deference and “‘may not substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'” Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary of Health and Human Services, 733 F.2d 1037, 1041 (2d Cir. 1984)); Dunston v. Colvin, No. 14-CV-3859, 2015 WL 54169, at *4 (S.D.N.Y. Jan. 5, 2015) (same) (quoting Jones, 949 F.2d at 59), R. & R. adopted, 2015 WL 1514837 (S.D.N.Y. Apr. 2, 2015). Accordingly, if a court finds that there is substantial evidence supporting the Commissioner's decision, the court must uphold the decision, even if there is also substantial evidence for the claimant's position. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). “The Court, however, will not defer to the Commissioner's determination if it is the product of legal error.” Dunston, 2015 WL 54169, at *4 (internal quotation marks omitted) (citing, inter alia, Douglass, 496 Fed.Appx. at 156; Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)).

B. Determination Of Disability

Under the Act, a person meeting certain requirements and considered to have a disability is entitled to disability benefits. 42 U.S.C. § 423(a)(1). The Act defines disability as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A claimant's impairments must be “of such severity that he is not only unable to do his previous work but cannot, considering his 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).

To determine whether an individual is disabled and therefore entitled to benefits, the Commissioner conducts a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4).²First, the Commissioner must determine whether the claimant is currently engaged in any substantial gainful activity. 20 C.F.R §§ 404.1520(a)(4)(i), (b). If so, the claimant is eligible for benefits and the inquiry ceases.

2 Because this case is about Cullen's application for DIB, the Court cites to regulatory standards for DIB determinations, which are found at 20 C.F.R. § 404.900, et seq., instead of the standards for Supplemental Security Income (“SSI”), which are found at 20 C.F.R. § 416.901, et seq., or both. See Coulter v. Commissioner of Social Security, No. 22-CV-1149, 2023 WL 3346505, at *2 n.1 (S.D.N.Y. May 10, 2023) (“The regulations for disability and disability insurance and supplemental security income benefits are virtually identical. The DIB regulations are found at 20 C.F.R. § 404.900, et seq., while the parallel SSI regulations are found at 20 C.F.R. § 416.901, et seq.”) (quoting Canter v. Saul, No. 19-CV-00157, 2020 WL 887451, at *1 n.2 (D. Conn. Feb. 24, 2020)).

If the claimant is not engaged in any such activity, the Commissioner proceeds to the second step and must determine whether the claimant has a “severe impairment,” which is an impairment or combination of impairments that significantly limits the claimant's ability to perform basic work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii), (c). If the claimant does not have an impairment or combination of impairments that are “severe” the claimant is not entitled to benefits and the inquiry ends.

If the claimant has a severe impairment or combination of impairments, the Commissioner continues to step three and must determine whether the impairment or combinations of impairments is, or medically equals, one of those included in the “listings” of the regulations contained at 20 C.F.R. Part 404, Subpart P, Appendix 1. If the claimant's impairment or impairments meet or medically equals one of those listings, the Commissioner will presume the claimant to be disabled, and the claimant will be eligible for benefits. 20 C.F.R. §§ 404.1520(a)(4)(iii), (d).

If the claimant does not meet the criteria for being presumed disabled, the Commissioner continues to step four and must assess the claimant's residual functional capacity (“RFC”), which is the claimant's ability to perform physical and mental work activities on a sustained basis despite their impairments. 20 C.F.R. §§ 404.1520(e). The Commissioner then determines whether the claimant possesses the RFC to perform the claimant's past work. 20 C.F.R. §§ 404.1520(a)(4)(iv), (f), (h). If so, the claimant is not eligible for benefits and the inquiry stops.

If the claimant is not capable of performing prior work, the Commissioner must continue to step five and determine whether the claimant is capable of performing other available work. 20 C.F.R. §§ 404.1520(a)(4)(v), (g), (h). If the claimant, as limited by his RFC, can perform other available work, the claimant is not entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4)(iv), (v). The claimant bears the burden of proof for the first four steps. Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). Once the claimant has established that he is unable to perform his past work, however, the Commissioner bears the burden of showing at the fifth step that “there is other gainful work in the national economy which the claimant could perform.” Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998) (internal quotation marks omitted).

PROCEDURAL HISTORY

On August 1, 2012, Cullen applied for DIB. (R. 130-43.³) He claimed that he became unable to work because of his disabling conditions, which include heart conditions, heart arrythmia, myocardial ischemia, aortic stenosis, sleep apnea, diabetes, a torn rotator cuff, and kidney stones. (R. 154.) The period of disability at issue runs from August 26, 2005, Cullen's claimed onset date, to March 31, 2009, when he was last insured. (R. 1020.)

3 “R.” refers to the SSA Administrative Record filed on April 30, 2023 at Dkt. 6. Although at times in his briefs Cullen states that he applied for DIB on July 20, 2012, at other times he maintains that he applied on August 1, 2012. The Court recognizes the date on the DIB application, which is August 1, 2012. (R. 130-43.)

When the SSA denied his claim on August 30, 2012 (R. 50-57), Cullen requested a hearing before an ALJ on September 11, 2012 (R. 58-59). The hearing occurred on June 11, 2013 before ALJ Michael A. Rodriguez (“ALJ Rodriguez”); Cullen was represented by counsel Jerrick Cook and testified. (R. 19-46.) On August 1, 2013, ALJ Rodriguez issued a decision denying DIB because he found that Cullen had the RFC to perform light work and therefore was not disabled. (R. 5-18.) In his reasoning, ALJ Rodriguez found that Cullen's statements about the severity of his symptoms and the extent of his limitations were not credible, pointing to Cullen's daily activities and maintaining that they were “not limited to the extent one would expect given [Cullen's] complaints.” (R. 12-13.) Cullen requested a review of ALJ Rodriguez's decision on September 27, 2013 (R. 4), which the Appeals Council denied on December 24, 2014 (R. 1-3).

Cullen then commenced an action in this Court seeking review of the Commissioner's decision, and, on May 19, 2016, Magistrate Judge James C. Francis IV issued a memorandum and order reversing the Commissioner's decision and remanding the case for further administrative proceedings. (R. 437-462.) Cullen v. Commissioner of Social Security (“Cullen I”), No. 15-CV-1180, 2016 WL 3144050, (S.D.N.Y. May 19, 2016). Judge Francis faulted ALJ Rodriguez's adverse credibility determination with respect to Cullen, stating that ALJ Rodriguez inaccurately characterized Cullen's testimony and that Cullen's daily activities were “in no way inconsistent with [his] alleged need to sleep during the day.” (R. 455-56.) Cullen I, 2016 WL 3144050, at *7.

As a result of Cullen I, on September 3, 2016, the Appeals Counsel remanded the case to an ALJ for another hearing. (R. 491-93, 527-41.) On August 17, 2017, the second hearing occurred before a new ALJ, ALJ Michael J. Stacchini (“ALJ Stacchini” or the “ALJ”). (R. 380-419.) Cullen was again represented by counsel, Christopher Bowes. (Id.) Cullen and Vocational Expert (“VE”) Lanell Hall testified. (Id.)

On August 15, 2018, ALJ Stacchini found, similarly to ALJ Rodriguez, that Cullen had the RFC to perform light work and was not disabled. (R. 361-79.) Again, ALJ Stacchini determined that Cullen's statements about the intensity, persistence, and limiting effects of his symptoms were not entirely consistent with the record. (R. 368.) ALJ Stacchini based his conclusion on Cullen's daily activities as well as the medical evidence of record. (R. 368-71.) The Appeals Council affirmed again. (R. 1145.)

Cullen then commenced a second civil action in this Court seeking review of the Commissioner's decision. On November 19, 2020, Magistrate Judge Ona T. Wang issued an order reversing the Commissioner's decision and remanding for further proceedings (“Cullen II”). (R. 1135-58; see also R. 1117-27.) Judge Wang found that ALJ Stacchini mischaracterized the medical record and that his decision contained several typographical errors. (R. 1155-57.) Unlike Judge Francis, however, Judge Wang did not reject ALJ Stacchini's adverse credibility determination with respect to Cullen. Finally, Judge Wang instructed that, on remand, the ALJ should consult a medical expert for help in evaluating the complex evidence in the case. (R. 1157.)

On May 3, 2021, in light of Cullen II, the Appeals Council remanded the case and instructed the ALJ to address the errors raised by Judge Wang and to obtain evidence from a medical expert. (R. 1128-34.) On July 28, 2022, the third hearing concerning Cullen's application for DIB took place before ALJ Stacchini. (R. 1057-97.) Cullen was represented by counsel Christopher Bowes again; and the ALJ heard testimony from Cullen, VE Dawn Blythe, and medical expert Dr. Stephen H. Andersen (“Dr. Andersen”). (Id.; see also R. 1626.)

On November 2, 2022, ALJ Stacchini issued his decision - his second and the third one by an ALJ in this action - denying Cullen's claim. (R. 1014-45.) ALJ Stacchini again concluded that Cullen had the RFC to perform light work and therefore was not disabled. (Id.) In reaching his decision, ALJ Stacchini found that Cullen's statements about his symptoms were not entirely consistent with the medical record, the opinion evidence, his daily activities, and his routine and conservative treatment. (Id.)

Cullen filed the instant action seeking review of the Commissioner's decision on February 28, 2023.⁴ (Dkt. 3.) On July 7, 2023, Cullen filed a motion for judgment on the pleadings (“Pl. Brief”). (Dkt. 14.) The Commissioner filed his cross-motion for judgment on the pleadings on August 28, 2023 (“Def. Brief”). (Dkt. 18.) Cullen submitted his reply on September 20, 2023 (“Pl. Reply”). (Dkt. 21.) The case has been referred to me for report and recommendation. (Dkt. 9.)

4 Cullen filed his complaint on February 28, 2023 at Dkt. 1, but due to a filing error he refiled it on March 1, 2023 at Dkt. 3.

FACTUAL BACKGROUND ⁵

5 In his motion for judgment on the pleadings, Cullen discussed his background, his symptoms and limitations, and the medical evidence (Pl. Brief at 1-10); the Commissioner adopted Cullen's statement of fact in his cross-motion for judgment on the pleadings while also outlining the opinion evidence and ALJ Stacchini's findings (Def. Brief at 3-11).

The Court summarizes below (1) Cullen's background and his allegations of his symptoms and limitations based on his testimony at the hearings before the ALJs; (2) the medical evidence pertaining to Cullen's sleep apnea and symptom of fatigue; (3) the opinion evidence; and (4) ALJ Stacchini's findings from his November 2, 2022 decision. A. Cullen's Background And Allegations Of Symptoms And Limitations

1. Background

Cullen was born on May 10, 1961. (R. 137, R. 150.) He was 47 years old as of the date last insured on March 31, 2009, and 51 years old when he applied for DIB on August 1, 2012. At all relevant times, Cullen has lived in Cortlandt Manor, New York. (R. 137, 153, 389, 1076.) Cullen is married, and his wife works full-time at a hospital. (R. 25, 389-90, 1076.) He has three children who were 23, 20, and 16 at the time of the first hearing in 2013. (R. 25.)

Cullen graduated from John Jay College with a bachelor's degree in public administration. (R. 26.) He worked for the New York Police Department (“NYPD”) from 1983 to July 2003, rising to the level of detective, and retired when he was diagnosed with an enlarged heart. (R. 27, 32-33, 155, 392-93, 1086.) He receives disability payments from the NYPD. (R. 27, 392-93, 1086.)

Although Cullen retired from the NYPD in 2003 and maintains that he did not work after that (R. 26-27, 32-33, 154, 395), he inherited a tavern from his parents, where he helps, although it is mainly run by his wife. (R. 41, 407-09, 412, 1079-80.) He testified that he does “some paperwork” or “make[s] change for the bartender” and goes there two or three days per week. (R. 41, 407-09, 412, 1079-80.)

At the time of the first hearing, Cullen was five foot 11 inches and weighed 245 pounds. (R. 25-26.)

2. Allegations Of Fatigue

Cullen alleges both that he was “always” fatigued but also that he would feel fine one moment but then “just knocked out” the next and “exhausted half the time.” (Compare R. 35 (Q: “Were you having any of the fatigue? A: Always. Always and I had no idea why.”) and R. 1089 (“A: … I am always tired.”) with R. 37 (“A: … if I'm here talking with you now I'm fine and everything like that. Then, later on if I just like I'm just knocked out”) and R. 1083 (“A: I am just exhausted half the time.”).) At the first hearing in 2013, Cullen maintained that he felt fatigued “four out of five days” and needed to nap for 30 minutes to two hours but that he did not need to lay down “as much” in 2008 and 2009. (R. 38, 40-41.) At the second hearing in 2017, he stated, somewhat inconsistently from his earlier testimony, that he naps “three times a week, [to] zero or ... five days a week” for 30 minutes to two hours and that this need existed “since 2005 to the present.” (R. 398.) He reiterated at the third hearing that he falls asleep for 30 minutes to two hours. (R. 1090.) Cullen also repeatedly maintained that he had “good days and bad days.” (R. 396, 1083.)

When asked by ALJ Stacchini at the third hearing in 2022 whether he would always tell his doctors that he was fatigued, Cullen answered “I always tell him.” (R. 1089 (“Q: Every time you go to the doctor you tell them you are fatigued? A: I mean - Q: 2008, 2009, 2010, 2011, 2012, 2013, every time you go, you say I am tired? A: I always tell him.”).) Additionally, when asked by ALJ Rodriguez at the first hearing in 2013 when he started to notice the fatigue, Cullen stated he “started noticing more” after he retired. (R. 35-36.) Cullen explained that he was tired while working but believed it was because of the “weird schedules” he had to maintain as a detective, but then, even with a “normal life” and schedule, he was still fatigued. (Id.) ALJ Stacchini pressed him on this at the second hearing in 2017, asking why he did not seek out treatment earlier, seemingly referring to Cullen's retirement in 2003 but alleged disability onset date of 2005 and his first treatment in 2009, to which Cullen responded, “I can't give you an answer to that.” (R. 398-99.)

3. Allegations Of Inability To Tolerate CPAP Machine

Cullen was recommended a Continuous Positive Airway Pressure (“CPAP”) machine to help with his sleep apnea and fatigue (R. 240), discussed further below, but gave somewhat inconsistent testimony about his ability to tolerate it. At the first hearing in 2013, despite stating that he was “very restless with [the CPAP machine],” pulling it off, and that he does not get “regular sleep,” he also answered that he got “some” relief with it. (R. 36 (“Q: Do you get some relieve [sic] with the CPAP? A: Some to a certain extent. ... Q: Okay. It helps, but you can't - you're one of these people that rips it off. A: Exactly.”).) However, at the second hearing in 2017 and at the third in 2022, Cullen maintained that he is always restless with it and unable to use it and that it has never provided relief. (R. 397-98 (“Q: So the CPAP doesn't even help? A: The problem with the CPAP machine is that I'm very restless and as I turn I pull it off the night table. Now instead of waking up from gagging or not breathing I'm waking up because there's a crash and there's water all over the floor. Q: How often does that occur? A: Anytime I use it. Q: Has that been the same since you started using it? A: Always. . Q: So it hasn't helped your ability to sleep from the beginning? A: No not at all. . A: . Again . I can't tolerate the machine.”), 413 (“Q: Did you get to the point where the CPAP machine was correcting the sleep apnea for you? A: No.”), 1087 (“Q: Did you [use] the mask? A: You know, I tried but to use the mask you have to sleep on your back and I am a really restless sleeper.”), 1088 (“Q: Did you have an experience after successfully using it, feeling like I am a different person, I feel so much better or any big benefit from using it? A: No, not at all.”).)

At the third hearing in 2022, ALJ Stacchini informed Cullen that “[t]here is some evidence in the record you reported to your doctors that maybe you were tolerating th[e] CPAP machine,” and asked “[d]o you remember telling any of your doctors that it was working?” (R. 1088.) Cullen responded that he told the doctors “[n]ot that it was working but that I was trying, I was attempting to use it and it just never - I told them that. I told them the same thing.” (R. 1088.)

4. Allegations Of Activities

For the most part, Cullen was consistent in his testimony at the three hearings concerning the activities he engaged in, although he portrayed himself as more active at the first hearing in 2013. For example, at the first hearing, Cullen stated that he “care[d] for the kids” in 2008 and 2009 when two of them were living at home and one was in college (R. 41), but at the third hearing in 2022, he insisted he performed only “a minimum of childcare” (R. 1077). Cullen consistently testified, however, that although he would try to attend his children's extracurricular events - such as his daughters' field hockey games or his son's band concerts - he would often fall asleep, but he did tend to pick them up from their extracurricular activities. (R. 42-43, 389-90, 394, 405, 1077-78.) Despite sometimes taking care of his children when they lived at home, Cullen added at the third hearing in 2022 that his daughter refuses to let him babysit his grandson because she believes that he will fall asleep. (R. 1090.)

At the first hearing, Cullen maintained that he did “the regular things around the house” and was “kind of ... the house mom” because he did the family food shopping and cooked and cleaned. (R. 42-43.) In contrast, at the second and third hearings, Cullen alleged that he was “[n]ot [doing] a whole lot” around the house, mostly “outside stuff,” such as “mow[ing] the grass or . put[ting] out the trash” or doing minor repairs, but only “occasionally” cooking and little to no cleaning. (R. 390-91, 393-94, 1078.) In a 2012 questionnaire, Cullen indicated that his wife prepared meals but that he would do the weekly food shopping. (R. 166-68.)

Although Cullen testified at the first hearing that he would bring a car “to the shop to be fixed,” he consistently stated at all three hearings that he could not drive long distances, including when the family went to their second home in Myrtle Beach in South Carolina. (R. 43, 44 (“A: . it's not like I can drive. [My wife] does the driving. I mean, if we go anywhere far.”), 391 (“A: I own a house at Myrtle Beach. We go down to Myrtle Beach. Q: Drive down or - A: Well my wife basically drives. I can't drive that far. Q: Do you drive part of the way? A: Sometimes I drive a little bit yeah if it was a family thing, then we would drive ... actually as the kids got older my son - everybody would split up the driving.”), 405 (“Q: You said regarding driving to Myrtle Beach, you can't drive that far, what is the reason why you can't drive far? A: Because I would fall asleep, inattention. Q: How long would you be driving before you would notice that you would be - how long is too long I guess is my question? A: I would say - again depending on the day and the conditions and everything, but anyway from probably an hour to an hour and a half.”), 1078-79 (“A: We still have the place [at Myrtle Beach]. . Q: Back then you were driving and splitting it up with your wife. A: And the kids. . Q: So you would do some, your daughter would do some, your wife would do some. A: Yes.”).)

Cullen stated that he would take his wife to dinner once in a while (R. 43), and that they tried going to sporting events, concerts, plays, and the movie theater, but he would fall asleep (R. 38, 405-06, 1090). He also stated that he would sometimes spend time with friends, about once a month. (R. 43, 169, 392.) He belongs to a bowling league, bowling one Saturday per month, and golfs occasionally, including once every two weeks when he is at Myrtle Beach, but he often falls asleep in the golf cart. (R. 44, 391-92, 404, 1083.) He indicated that he goes to church weekly. (R. 169.)

With respect to exercising, in a 2012 questionnaire, Cullen indicated that he can walk for two blocks before needing to stop and rest for 10 minutes (R. 171), but at the second hearing in 2017 he testified that he walks “for a little” or “a couple of miles if [he] can” (R. 401-02). At the second hearing he clarified that he was not exercising from 2 005 to 2009. (Id.) In a 2012 questionnaire, he indicated that he had no problem with maintaining his personal care. (R. 165-66.)

B. Medical Evidence

Cullen was treated primarily by two doctors, Dr. James C. Trapasso (“Dr. Trapasso”), his primary care provider, and Dr. George A. Pazos (“Dr. Pazos”), an otolaryngologist, from his alleged disability onset date of August 26, 2005 (R. 150) to December 14, 2009 for Dr. Pazos (R. 1004) and to at least 2022 for Dr. Trapasso (R. 1627). The date of his last office visit to either of these doctors contained in the medical record is April 3, 2013. (R. 355-60.)

Cullen first complained of difficulty sleeping to Dr. Trapasso on December 10, 2008 - more than three and a half years after Cullen's claimed onset date and only a little over three months before the end of the disability period at issue. Dr. Trapasso surmised Cullen had sleep apnea and referred him to an ear nose and throat (“ENT”) doctor on that date (R. 317-19). Cullen previously had seen Dr. Pazos - an ENT doctor - prior to then complaining of congestion but not difficulty sleeping (R. 248).

1. From Onset Date To Date Last Insured

On November 10, 2006, Cullen complained to Dr. Pazos of congestion and epistaxis,⁶ and Dr. Pazos diagnosed Cullen with a deviated nasal septum (“DNS”). (R. 248.) To alleviate those symptoms and correct the DNS, on November 13, 2006, Dr. Pazos performed a procedure, excising a mass from Cullen's left nasal passage, which healed well. (R. 247-48, 250-54.) On January 12, 2007, he visited Dr. Pazos and again complained of epistaxis. (R. 249.) Dr. Pazos identified a “new mass” but only prescribed saline, use of a humidifier, and a follow up appointment. (Id.)

6 Epistaxis is also known as nosebleeds. See Nosebleeds: First aid, Mayo Clinic, https://www.mayoclinic.org/first-aid/first-aid-nosebleeds/basics/ART-20056683 (last visited Jan. 22, 2024).

On September 18, 2008, Cullen visited Dr. Trapasso, where he complained of a rash but otherwise presented as normal. (R. 320-22.) Dr. Trapasso diagnosed him with mixed hyperlipidemia, benign hypertension, morbid obesity, and dermatitis, and instructed Cullen to return if he developed a fever or his symptoms worsened. (R. 322.)

At his December 10, 2008 appointment with Dr. Trapasso, Cullen alleged difficulty sleeping for the first time. (R. 317.) Dr. Trapasso noted that Cullen was “not sleeping well due to [a] busy work schedule[,] ... chronic nasal congestion and snor[ing] a lot” and “may have some sleep apnea.”⁷ (Id.) Dr. Trapasso diagnosed Cullen with unspecified sleep apnea and advised Cullen to go to an ENT doctor for a sleep apnea evaluation. (R. 318.)

7 Although Cullen retired from the NYPD in 2003, the ALJ and Cullen surmised at the second hearing in 2017 that perhaps Dr. Trapasso was referring to Cullen's work helping at the bar. (R. 408.)

Cullen thus returned to his ENT doctor, Dr. Pazos, on December 15, 2008, to whom he complained of fatigue, nasal congestion, snoring, and abnormal sleep pattern but denied night sweats. (R. 232-36.) Dr. Pazos diagnosed Cullen with hypersomnia with sleep apnea, referred Cullen for a sleep study, and instructed him to return for a followup in three weeks. (R. 235.)

Cullen underwent a “nocturnal polysomnography,” also known as a sleep study, on January 12, 2009 at Putnam Hospital Center. (R. 243-46, 300-08.) The study indicated that he had severe sleep apnea (R. 245, 301), that he had an apnea hypopnea index (“AHI”⁸) of 84 (R. 302, 308), and recommended another study with a CPAP machine, among other things (R. 245, 301).

8 AHI is a scale “shows the number of times you have apnea or hypopnea during one night.” An AHI of 30 or more indicates severe sleep apnea. Hypopnea: What to Know About This Sleep Disorder, WebMD, https://www.webmd.com/sleep-disorders/sleepapnea/sleep-hypopnea-overview (last visited Feb. 8, 2024).

On February 20, 2009, Cullen saw Dr. Pazos; Cullen complained of itching eyes, nasal congestion, paroxysmal nocturnal dyspnea (“PND”⁹), and snoring, but he denied night sweats, and, unlike at his last visit with Dr. Pazos on December 15, 2008, he denied fatigue. (R. 227-31.) Dr. Pazos again diagnosed Cullen with hypersomnia with sleep apnea and ordered Cullen to undergo another sleep study with a CPAP machine (id.), which he did on March 10, 2009 (R. 237-42). Before the sleep study, Cullen returned to Dr. Pazos on March 8, 2009. (R. 213-16.) This time, Cullen was positive for fatigue, as well as night sweats, but he was negative for sleeping problems. (R. 213.) Dr. Pazos noted that, with respect to snoring, “[t]he problem has improved,” but he diagnosed Cullen with hypersomnia with sleep apnea again and ordered him to return in two weeks. (R. 213-16.)

9 PND is difficulty breathing at night with the symptoms coming and going quickly. What /s Paroxysmal Nocturnal Dyspnea (PND)? WebMD, https://www.webmd.com/sleep-disorders/what-is-paroxysmal-nocturnal-dyspnea (last visited Jan. 22, 2024).

Cullen's sleep study with the CPAP machine took place on March 10, 2009, again at the Putnam Hospital Center. (R. 237-42.) The study indicated that “[t]he previously observed obstructive sleep apnea is correctable using[ ] [the] CPAP” and that, with the CPAP machine, Cullen had only mild obstructive sleep apnea and an AHI of 6. (R. 23840.) As part of the study, Cullen filled out a questionnaire the morning after, in which he indicated that he tolerated the CPAP machine “well” even though he noted that he slept the “same as usual” with it. (R. 242.)

On March 12, 2009, Cullen saw Dr. Trapasso who noted that Cullen was “awaitin[g] [a] CPAP machine,” presumably for home-use, and that Cullen “had significant apnea.” (R. 313-16.) While Cullen complained of nasal congestion, Dr. Trapasso diagnosed him with unspecified sleep apnea and advised him to return every three months for checkups. (Id.)

On March 27, 2009, Cullen had an appointment with Dr. Pazos - Cullen's last appointment while he was insured. (R. 224-26.) Dr. Pazos noted that Cullen “[t]olerated CPAP well”¹⁰ and that Cullen's snoring had “improved.” (R. 225.) For the first time since receiving the CPAP machine for home-use, Cullen reported that he was negative for fatigue and night sweats; however, he was positive for itching eyes, nasal congestion, and PND. (R. 224.) Dr. Pazos diagnosed Cullen with hypersomnia with sleep apnea and advised him to come in for a follow-up in three weeks. (R. 226.)

10 Based on the sequence of events, it is reasonable to infer that the CPAP machine arrived for Cullen to use at home between March 12 and March 27, 2009.

2. From Date Last Insured

In less than a two-month period, between April 24, 2009 and June 19, 2009, he saw Dr. Pazos six times: April 24, 2009 (R. 220-23), April 27, 2009 (217-19), May 8, 2009 (R. 213-16), May 15, 2009 (R. 209-12), May 29, 2009 (R. 205-08), and June 19, 2009 (R. 201-04). At those visits, Cullen consistently complained of fatigue and night sweats but denied sleeping problems. (R. 201-23.) At all the visits except for the one on April 27, 2009, Dr. Pazos reported that Cullen's snoring “problem has improved.” (Id.) At the April 24, 2009 visit, Dr. Pazos reported that Cullen “[t]olerated CPAP well.” (R. 220.) He diagnosed Cullen with hypersomnia with sleep apnea at the May 8, 2009 and June 19, 2009 visits. (R. 201-04, 213-16.)

On July 1, 2009, Cullen saw Dr. Trapasso for a standard follow-up appointment. (R. 309-12.) Dr. Trapasso noted that Cullen's “sleep [was] better since [his] ENT procedure with Dr. Pazos” and his “breathing [was] much better.” (R. 309.) Dr. Trapasso diagnosed Cullen with unspecified sleep apnea. (R. 311.) Despite the spate of doctors' visits, Cullen did not return to either Dr. Trapasso or Dr. Pazos for the next four months.

Then, on November 2, 2009, Cullen went to Dr. Pazos complaining of nosebleeds and sinusitis. (R. 197-200.) Dr. Pazos again reported that Cullen's snoring “problem has improved” and recommended a follow-up in six weeks. (Id.) Dr. Pazos did not ask about Cullen's fatigue, and he did not diagnose Cullen with sleep apnea despite noting that Cullen reported symptoms of snoring with apnea. (Id.)

On December 14, 2009, Cullen saw Dr. Pazos for the last time. (R. 193-96.) Cullen complained of fatigue and night sweats but denied sleeping problems. (R. 193.) Dr. Pazos again indicated that Cullen's snoring “problem has improved,” but again did not diagnose Cullen with sleep apnea despite again noting that Cullen reported symptoms of snoring with apnea and recommended that Cullen follow up as needed in five months. (R. 195-96.)

Cullen continued to see Dr. Trapasso. Cullen consistently denied the symptom of fatigue in his four appointments with Dr. Trapasso spanning almost a year from April 9, 2010 to April 7, 2011 (R. 323-41); the four appointments took place on April 9, 2010 (R. 323-26), July 15, 2010 (R. 327-31), October 28, 2010 (R. 332-36), and April 7, 2011 (R. 337-41).¹¹ At the April 9, 2010 appointment, Cullen denied difficulty breathing at night (R. 323-26), and, at the October 28, 2010 and April 7, 2011 appointments, he denied obstructive sleep apnea/snoring (R. 332-41). At all four appointments, Dr. Trapasso listed sleep apnea as a current problem and, at the April 9, 2010, October 28, 2010, and April 7, 2011 appointments, he described Cullen as “alert” with “normal attention span and concentration.” (R. 323-41.)

11 At the July 15, 2010 appointment, Cullen was seen by Kim Knowles instead of Dr. Trapasso at Dr. Trapasso's office. (T. 327-31.)

Despite denying fatigue to Dr. Trapasso in 2010 and 2011, Cullen complained of fatigue or sleeping difficulties in his three visits to Dr. Trapasso in 2012 and 2013 occurring on February 17, 2012 (R. 342-48), December 21, 2012 (R. 349-54), and April 3, 2013 (R. 355-60), with April 3, 2013 being Cullen's last office visit to either of these doctors in the medical record. At the February 17, 2012 visit, for the first time, and then at Cullen's subsequent two visits, Dr. Trapasso noted that Cullen was “not using [the] CPAP machine.” (R. 342-60.) Cullen complained of a sleep disorder and obstructive sleep apnea/snoring at the February 17, 2012 visit (R. 342-48), fatigue and nasal congestion at the December 21, 2012 visit (R. 349-54), and obstructive sleep apnea/snoring and fatigue at the April 3, 2013 visit (R. 355-60). Dr. Trapasso listed fatigue and sleep apnea as current problems at all three visits but also noted that Cullen was “alert” with “normal attention span and concentration.” (R. 342-60.)

C. Opinion Evidence

The record contains opinion evidence from three doctors: a sleep disorders impairment questionnaire completed by Dr. Pazos and dated September 18, 2013 (R. 1004-08); an undated letter from Dr. Trapasso submitted to ALJ Stacchini sometime after the third hearing that took place on July 28, 2022 (R. 1627; see also R. 1032); and Dr. Andersen's testimony at the third hearing (R. 1065-75).

In the questionnaire, Dr. Pazos reported that he treated Cullen from December 5, 2008 through December 14, 2009. (R. 1004.) The medical record confirms that Cullen's last visit to Dr. Pazos was indeed on December 14, 2009 (R. 193-96), but that Dr. Pazos first saw Cullen on November 10, 2006 (R. 248). Dr. Pazos reported that he diagnosed Cullen with sleep apnea and that his prognosis was “[g]ood, on CPAP.” (R. 1004.) Although he checked off that clinical findings demonstrate Cullen has sleep apnea, Dr. Pazos crossed out that they demonstrate excessive daytime sleepiness. (Id.) Dr. Pazos also refrained from identifying any limitations that Cullen suffered from due to his impairments. (R. 1006-08.) Finally, Dr. Pazos indicated that Cullen's condition does not cause fatigue and that he does not have good days and bad days. (R. 1008.)

In Dr. Trapasso's undated letter, which spans half a page, Dr. Trapasso stated that he has known Cullen since at least 2008 and that Cullen has been a patient in his practice for approximately 14 years; therefore, presumably he has treated Cullen into 2022. (R. 1627.) Dr. Trapasso recounted that Cullen “was evaluated for obstructive sleep apnea in 2009 and this revealed severe OSA,” and that he and Cullen had “many discussions about his overall health” with “[o]bstructive sleep apnea and an intolerance to using a CPAP machine [as] part of those discussions.” (Id.) Dr. Trapasso then repeated “we have always discussed his inability to tolerate his CPAP machine and his ongoing obstructive sleep apnea which leads to fractured sleep and increasing urinary frequency during the night time possibly due to this fractured sleep.” (Id.) Dr. Trapasso did not identify any functional limitations or symptoms, such as fatigue, that could be caused by Cullen's sleep apnea.

Dr. Andersen is board certified in emergency medicine and who has testified in social security cases since 2011. (R. 1066, 1626.) Although he did not examine Cullen, Dr. Andersen reviewed the medical record. (R. 1066.) He testified at the third hearing in 2022 that Cullen has obstructive sleep apnea based on his review of the medical evidence in the record. (R. 1065-67, 1626.) In response to the ALJ's questioning, he also testified that Cullen's obstructive sleep apnea, type II diabetes, hypertension, rhinitis, sinusitis, morbid obesity, and kidney stones do not medically equal a listing of the regulations contained at 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 1067.) Dr. Andersen stated that he would limit Cullen to “[o]ccasionally lift and carry 50 pounds, frequently lift and carry 25 pounds,” “sit six hours our of an eight hour day,” “[n]o other limits on push/pull, postural limitations,” “[o]ccasional ramps and stairs, no other ladders, ropes and scaffolds,” “[o]ccasional crawling,” and “[a]void all exposure to hazards, unprotected heights, like hazardous machinery,” as well as “occasional stoop, kneel, crouch” due to Cullen's obesity. (R. 1067-68.) Finally, Dr. Andersen maintained that he “did not see anything in the record that would support” Cullen's allegations of daytime sleepiness. (Id.)

In response to questioning by Cullen's counsel, Dr. Andersen acknowledged that, if Cullen is unable to use the CPAP machine, then “[h]e wouldn't get as much rest or sleep” and that fatigue “would be expected.” (R. 1069-70.) However, he testified that, if a person is using the CPAP machine, then that person should not be experiencing daytime sleepiness, or at least the CPAP machine “diminishes it and ... improves it.” (R. 1070, 1074.) He also testified that a doctor reporting that a person “tolerate[s] CPAP well”

“impl[ies] compliance.” (R. 1073.) He stated that there is no evidence in the record of Cullen's inability to tolerate the CPAP machine from 2009 to 2012. (R. 1069.)

Dr. Andersen also testified that, for people who cannot tolerate a CPAP machine, “[t]ypically they will try on different masks and different machines” or pursue “surgical options,” but the latter is “not done very often” because there is a “variety of masks and machines ... available” for treatment. (R. 1074.) Dr. Andersen responded to questioning that a doctor's finding of a person's alertness at an office visit would be inconsistent with that person claiming to be experiencing daytime sleepiness due to obstructive sleep apnea. (R. 1071-72.) Finally, Dr. Andersen testified that Cullen's fatigue may be related to obesity or deconditioning (R. 1073-74), and that he did not know what AHI stood for (R. 1073).

D. The 2022 ALJ Decision

In his 2022 decision, ALJ Stacchini followed the requisite five-step analysis. (R. 1014-45.) At step one, ALJ Stacchini found that Cullen did not engage in substantial gainful activity from the period of his alleged onset date of August 26, 2005 through his date last insured of March 31, 2009. (R. 1020.) At step two, ALJ Stacchini determined that Cullen had the following severe impairments: chronic rhinitis; sinusitis; hypersomnia with obstructive sleep apnea; obesity; diabetes mellitus; and hypertension. (R. 1021.) At step three, however, he concluded that none of Cullen's impairments, alone or in combination, met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 1022.)

ALJ Stacchini then determined that through the date last insured, Cullen “had the residual functional capacity to perform light work . except regular breaks (permitted regularly scheduled breaks of 15 minutes in the morning and afternoon and % hour to 1 hour midday), occasional ramps and stairs, no ladders, ropes, or scaffolds, occasional stoop, kneel, crouch, crawl, avoid humidity, concentrated exposure to atmospheric conditions, unprotected heights, and hazardous machinery.” (R. 1023.) In formulating the RFC, the ALJ considered Cullen's allegations of his symptoms but found the alleged severity of his symptoms and the limitations they caused were not entirely consistent with the record. (R. 1023-35.) In reaching that conclusion, the ALJ considered (1) the medical evidence, (2) the opinion evidence, (3) Cullen's daily activities, and (4) his routine and conservative treatment. (Id.)

At step four, based on his RFC determination, the ALJ found that Cullen was unable to perform any past relevant work. (R. 1035.) Proceeding to step five, the ALJ concluded that jobs existed in significant numbers in the national economy that Cullen could have performed, including sales attendant, a ticket taker, and a routing clerk, and so he was not disabled as defined by the Act. (R. 1036-37.)

DISCUSSION

Cullen advances two arguments why ALJ Stacchini's decision should be reversed. First, he alleges that ALJ Stacchini failed to consider the combined impact of his obstructive sleep apnea and morbid obesity as required by the Act and its implementing regulations. (Pl. Brief at 15-16.) Second, Cullen maintains that the ALJ's adverse credibility determination with respect to Cullen is not supported by the record. (Pl. Brief at 16-23.) Neither argument stands up to scrutiny.

A. The ALJ Properly Evaluated The Combined Effect Of Cullen's Impairments

The Act and its implementing regulations require that, if the ALJ “find[s] a medically severe combination of impairments,” then the ALJ should consider “the combined impact of the impairments ... throughout the disability determination process.” 42 U.S.C. § 1382c(a)(3)(G), 20 C.F.R. § 404.1523. In Social Security Ruling 19-2p (“SSR 19-2p”), the Commissioner emphasized the need to consider the combined effects of obesity with another impairment because “[t]he combined effects of obesity with another impairment(s) may be greater than the effects of each of the impairments considered separately.” SSR 19-2p, 2019 WL 2161798, at *22926 (May 20, 2019). In particular, “[i]n cases involving obesity, fatigue may affect the person's physical and mental ability to sustain work activity. This may be particularly true in cases involving obesity and sleep apnea.” Id.

The Second Circuit has found, as have courts in this District after SSR 19-2p was issued, that, even if an ALJ does not explicitly discuss how a claimant's obesity affects his limitations, the ALJ's RFC determination should be upheld if the ALJ implicitly factors the claimant's obesity into the RFC determination by relying on medical reports that note the claimant's obesity and specify how obesity limits his functioning. See White v. Berryhill, 753 Fed.Appx. 80, 81 (2d Cir. 2019) (“White argues that in making [the RFC] determination the ALJ was required to explain how he factored White's obesity into his analysis of White's physical limitations. It is true that the ALJ did not explicitly discuss how White's obesity affected his limitations. But the ALJ implicitly factored White's obesity into his RFC determination by relying on medical reports that ... noted White's obesity. In any event, because White never specified how his obesity further limited his functioning, any error on the ALJ's part was harmless”) (internal quotation marks and brackets omitted); Sanchez v. Saul, No. 18-CV-12102, 2020 WL 2951884, at *30 (S.D.N.Y. Jan. 13, 2020) (“Courts have consistently held ... that ‘there is no obligation on an ALJ to single out a claimant's obesity for discussion in all cases,' and that ‘an ALJ's failure to address [it] explicitly ... does not warrant remand'”) (citing Watson v. Astrue, No. 08-CV-1523, 2010 WL 1645060, at *4 (S.D.N.Y. Apr. 22, 2010)), R. & R. adopted sub nom. Sanchez v. Commissioner of Social Security, No. 18-CV-12102, 2020 WL 1330215 (S.D.N.Y. March 23, 2020); Wilson v. Colvin, No. 14-CV-5666, 2015 WL 5786451, at *30 (S.D.N.Y. Sept. 29, 2015) (“This does not mean, however, than an ALJ must always explicitly discuss a claimant's obesity in his or her RFC determination”).

Cullen argues that “[a]t no point in his decision does the ALJ acknowledge that Cullen's morbid obesity would have a compounding effect on his obstructive sleep apnea.” (Pl. Brief at 16.) Not so. The ALJ did so at both steps three and four. At step three, after finding that Cullen had severe impairments of obesity and obstructive sleep apnea, among others (R. 1021), the ALJ explicitly considered Cullen's impairments singly and in combination - therefore considering the combination of obesity and obstructive sleep apnea - to determine that Cullen did not have an impairment or combination of impairments that met or medically equaled a listing in 20 C.F.R. Part 404, Subpart P, Appendix 1 (R. 1022-23). ALJ Stacchini stated, in formulating the RFC, “I considered the claimant's physical impairments. . Despite the claimant's combined impairments, the medical evidence does not document listing-level severity, and no medical source has mentioned findings equivalent in severity to the criteria of any listed impairment, individually or in combination.” (R. 1022.) He then listed Cullen's OSA, diabetes mellitus, rhinitis, and sinusitis and noted that there is no specific listing for any of them in 20 C.F.R. Part 404, Subpart P, Appendix 1 and that, based on Dr. Andersen's opinion evidence and the medical evidence, all of Cullen's impairments, including hypertension and obesity, singly or in combination, do not medically equal a listing either. (Id.)

As part of his reasoning, ALJ Stacchini expressly referenced and discussed SSR 19-2p: “I considered the claimant's obesity as directed by SSR 19-2p. ... Specifically, during the period at issue, his Body Mass. Index (‘BMI') was 38.6, which is a level II obesity. . I have earlier found claimant's obesity to be severe, but the signs, symptoms, and laboratory findings of his obesity, either singly or in combination, are not of such severity as found in any listing.” (R. 1023.) Therefore, even if the ALJ did not put “obesity,” “sleep apnea,” and some variation of “in combination” in the same sentence, he still considered the compounding effect of obesity on all of Cullen's other impairments, including sleep apnea, at step three. See Duprey v. Berryhill, No. 17-CV-0607, 2018 WL 1871451, at *14 (D. Conn. Apr. 19, 2018) (finding that the “the ALJ explicitly considered plaintiff's obesity in combination with her other impairments” even though “[t]he ALJ does not explicitly address how plaintiff's obesity might impact her anxiety”) (internal quotation marks and brackets omitted).

Additionally, the fact that neither Cullen identified, nor is the Court able to identify, a listing that the combination of Cullen's obesity and sleep apnea could meet or medically equal suggests that the ALJ did not err at step three. See Powell v. Berryhill, No. 17-CV-8922, 2019 WL 1416990, at *5 (S.D.N.Y. March 28, 2019) (explaining that “Plaintiff bears the burden of demonstrating that the [l]isting criteria are met” and stating that “Plaintiff does not point to any medical finding suggesting that his combination of impairments meets or medically equals [a] [l]isting”). And, in any event, the testimony of Dr. Anderson, who opined that none of Cullen's impairments met or medically equal any listing, provides substantial evidence for the ALJ's decision.

ALJ Stacchini also did what was required of him in determining Cullen's RFC at step four by relying on medical and opinion evidence that noted his obesity. See White, 753 Fed.Appx. at 81 (“It is true that the ALJ did not explicitly discuss how White's obesity affected his limitations. But the ALJ implicitly factored White's obesity into his RFC determination by relying on medical reports that ... noted White's obesity”) (internal quotation marks and brackets omitted). The ALJ stated that he “fully accounted for the claimant's severe medically determinable impairments including the OSA, obesity, diabetes mellitus, hypertension, rhinitis, and sinusitis” in determining the RFC which “limit[s] the claimant to light exertion with regularly scheduled breaks including 15 minutes in the morning and afternoon, 30 to 60 minutes midday, occasional stooping, kneeling, crouching, crawling, and climbing ramps and stairs, no ladders, ropes, or scaffolds, and avoidance of humidity, concentrated exposure to atmospheric conditions, unprotected heights, and hazardous machinery.” (R. 1031 (emphasis added).) The ALJ added that he “fully considered the effect of the claimant's obesity in the residual functional capacity finding.” (R. 1023.)

The back-and-forth between ALJ Stacchini and Dr. Andersen at the third hearing demonstrates that ALJ Stacchini specifically accounted for Cullen's obesity to find that Cullen could only stoop, kneel, and crouch occasionally. (See R. 1068 (“Q: Do you have any limitations on stooping or crouching? A: No. Q: Do you have any limitations on the obesity? A: It would be only occasional. Q: So it would be occasional kneeling then too, occasional stoop, kneel, crouch? A: Correct.”).) The ALJ also adjusted Cullen's RFC based on his OSA: “I have fully accounted for ... the OSA ... by limiting the claimant to regularly scheduled breaks, no climbing ladders, ropes, or scaffolds, and avoiding unprotected heights and dangerous machinery.” (R. 1033.) The ALJ thus considered the combined effects of Cullen's OSA and obesity and “evaluated [Cullen's] physical functional limitations in a comprehensive manner.” Rivera v. Commissioner of Social Security, 728 F.Supp.2d 297, 331 (S.D.N.Y. 2010); see also Guadalupe v. Barnhart, No. 04-CV-7644, 2005 WL 2033380, at *6 (S.D.N.Y. Aug. 24, 2005) (“When an ALJ's decision adopts the physical limitations suggested by reviewing doctors after examining the Plaintiff, the claimant's obesity is understood to have been factored into their decisions”).

Additionally, in formulating the RFC, the ALJ made 11 references to Cullen's obesity and 51 references to his sleep apnea or OSA. (R. 1023-35.) He discussed Dr. Trapasso's notes that Cullen was obese (R. 1028, 1030, 1034) and Dr. Andersen's opinion testimony that Cullen's obesity caused certain functional limitations (R. 1029-31). Similarly, he considered Dr. Trapasso's diagnoses, or lack thereof, of sleep apnea (R. 1028-29, 1031-32, 1035), as well as Dr. Pazos' (R. 1031-32), Dr. Andersen's (R. 1029, 1031), and the results of Cullen's sleep studies (R.1025, 1030, 1032, 1035). Based on this record, the Court cannot conclude that the ALJ failed to properly consider the combined impact of Cullen's obesity and sleep apnea.

B. Substantial Evidence Supports The ALJ's Evaluation Of Cullen's Professed Symptoms And Limitations

Cullen next argues that ALJ Stacchini erred in finding that Cullen's statements about the severity of his symptoms, particularly fatigue, and the limitations they cause were not fully consistent with the record. (Pl. Brief at 16-23.) The Court does not agree. Substantial evidence supports the ALJ's determination.

It is within the ALJ's “discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain [or other symptoms] alleged by the claimant.” Aronis v. Barnhart, No. 02-CV-7660, 2003 WL 22953167, at *6 (S.D.N.Y. Dec. 15, 2003) (quoting Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)). In evaluating a claimant's own description of her impairments, an ALJ undertakes a two-step process. See 20 C.F.R. § 404.1529. At the first step, the ALJ determines whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged. Genier, 606 F.3d at 49. If the claimant does suffer from such an impairment, at the second step, the ALJ evaluates “the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities.” SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996); see also 20 C.F.R. § 404.1529(c).

When assessing the credibility of a claimant's statements about the intensity, persistence, or functionally limiting effects of his symptoms, the ALJ considers the following types of evidence, in addition to any objective medical evidence that substantiates the claimant's statements:

(1) The individual's daily activities; (2) [t]he location, duration, frequency, and intensity of the individual's pain or other symptoms; (3) [f]actors that precipitate and aggravate the symptoms; (4) [t]he type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; (5) [t]reatment, other than medication, the individual receives or has received for relief of pain or other symptoms; (6) [a]ny measures other than

treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and; (7) [a]ny other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.

SSR 96-7p, 1996 WL 374186, at *3. When the ALJ rejects a plaintiff's testimony in light of objective medical evidence and other factors he deems relevant, he must explain that decision “'with sufficient specificity to enable the [reviewing] Court to decide whether there are legitimate reasons for the ALJ's disbelief and whether his decision is supported by substantial evidence.'” Nazario v. Commissioner of Social Security, No. 21-CV-10663, 2023 WL 2396731, at *23 (S.D.N.Y. Feb. 9, 2023), R. & R. adopted sub nom. Nazario v. Kijakazi, 2023 WL 2242701 (S.D.N.Y. Feb. 27, 2023) (quoting Calzada v. Astrue, 753 F.Supp.2d 250, 280 (S.D.N.Y. 2010) (quoting Fox v. Astrue, No. 05-CV-1599, 2008 WL 828078, at *12 (N.D.N.Y. March 26, 2008))); see also Rosario v. Astrue, No. 12-CV-3594, 2013 WL 3324299, at *8 (S.D.N.Y. June 25, 2013) (ALJ's credibility determination entitled to deference unless it is “not set forth with sufficient specificity”) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984)).

In formulating Cullen's RFC, the ALJ considered Cullen's complaints about his symptoms. The ALJ examined Cullen's testimony at the three hearings and in the disability questionnaires that he filled out as part of his DIB application. (R. 1023-25.) Among other things, the ALJ noted that Cullen reported: “that he has always complained to his treating providers of tiredness and fatigue”; “that he could nap during the daytime anywhere from three to five days per week, with naps lasting thirty minutes to two hours”; and that he was “unable to tolerate the CPAP machine” which “happens every time [he] use[s] the CPAP machine.” (Id. (internal quotation marks and brackets omitted).) The ALJ then applied the requisite two-step process and determined that Cullen's symptoms were not as severe as alleged. The ALJ's RFC nonetheless accounts for some fatigue, just not to the extent alleged by Cullen. (R. 1033 (“I have fully accounted for any resulting fatigue from the OSA, whether on the CPAP machine or not, by limiting the claimant to regularly scheduled breaks, no climbing ladders, ropes, or scaffolds, and avoiding unprotected heights and dangerous machinery”).)

At step one, ALJ Stacchini found that Cullen's medically determinable impairments could reasonably be expected to cause the alleged symptoms.¹² (R. 1025.) At step two, however, the ALJ concluded that “the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.”¹³ The ALJ then considered (1) the medical evidence, (2) the opinion evidence, (3) Cullen's daily activities, and (4) his routine and conservative treatment. (R. 1026-35.)

12 In his reply, Cullen argues that “[g]iven that the ALJ accepts the diagnosis of hypersomnia, the Commissioner's and the ALJ's continued attempts to discount Mr. Cullen's telling and uncontradicted description of his symptoms is puzzling.” (Pl. Reply at 1.) But the ALJ's finding at step one of the credibility determination that Cullen suffers from hypersomnia with obstructive sleep apnea that can reasonably be expected to cause Cullen's alleged symptoms is not inconsistent with the ALJ's finding at the second step that Cullen's stated severity of those symptoms is not consistent with the record.

13 Cullen faults the ALJ for using an incorrect and “impossible standard”: “ALJ Stacchini rejected Mr. Cullen's testimony that as a result of severe obstructive sleep apnea, he is sleepy during the day and must take naps as ‘not entirely supported by the record.' [R.] 1025. This is an impossible standard to meet. Nowhere in the regulations or the caselaw is there a rule that a claimant's symptoms must be ‘entirely supported by the record' in order to be credited.” (Pl. Brief at 19.) There are two problems with Cullen's argument. First, the ALJ did not employ the standard Cullen says he did. The ALJ found that Cullen's statements about the severity of his symptoms “are not entirely consistent with the medical evidence and other evidence in the record.” (R. 1025 (emphasis added).) The ALJ did not say “entirely supported' a different concept than consistency - as Cullen asserts. Second, the ALJ did exactly what the regulations require: “at the second step, the ALJ must consider ‘the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence' of record.'” Jackson v. Kijakazi, 588 F.Supp.3d 558, 580 (S.D.N.Y. 2022) (citing Genier, 606 F.3d at 49 (citing 20 C.F.R. § 404.1529(a))) (emphasis added). The finding that Cullen's statements were not “entirely consistent” with the record is a finding about the “extent” of consistency. Unsurprisingly, courts routinely endorse the “not entirely consistent” phrasing. See, e.g., Medina v. Commissioner of Social Security, 831 Fed.Appx. 35, 36 (2d Cir. 2020) (upholding the ALJ's opinion, which “found that Medina's ‘statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the medical evidence and the other evidence in the record'”); Acevedo v. Saul, 577 F.Supp.3d 237, 243 (S.D.N.Y. 2021) (upholding the ALJ's opinion, which “found that [Acevedo's] ‘statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record'”).

While Cullen's daily activities and his routine and conservative treatment do not necessarily undermine his statements about his symptoms, the ALJ's detailed analysis is well-grounded on substantial evidence in the medical record and opinion evidence.

1. Medical Evidence

Six pages of the ALJ's decision describe the medical evidence and how it undermines Cullen's statements about the severity of his symptoms and limitations. (R. 1026-31.) Among other things, the ALJ noted that: (1) Cullen did not complain of fatigue until December 2008 despite alleging an onset date of August 26, 2005 (R. 1030); (2) from April 2010 through April 2011, Cullen denied fatigue in his visits to Dr. Trapasso (R. 1028); (3) Cullen showed significant improvement with a CPAP machine, as his AHI decreased from 84 to 6 when he used one (R. 1030); (4) evidence in the record shows that Cullen was able to tolerate the CPAP machine, including his answer on the questionnaire that he filled out after the March 10, 2009 sleep study that he was tolerating the machine “well” and Dr. Pazos' notes from March 27, 2009 and April 24, 2009 that Cullen was tolerating it “well” (id.); (5) Cullen informed Dr. Trapasso, after receiving the CPAP machine, that he was sleeping “better since the ENT procedure” and “breathing much better” (id.); (6) despite having received the CPAP machine in March 2009 and alleging that he could never use it, Cullen only reported to a doctor for the first time that he was not using it - not that he could not use it - on February 17, 2012 (R. 1031); and (7) from October 2010 through April 2013, Dr. Trapasso noted that Cullen was “alert” with “normal attention span and concentration” (R. 1030-31).

The ALJ's reasoning and the table attached as an appendix to this opinion summarizing Cullen's visits to Drs. Trapasso and Pazos from November 2006 to April 2013 provide substantial evidence underpinning the ALJ's finding that Cullen's subjective statements about the severity of his symptoms and the limitations they cause are not entirely consistent with the medical evidence. Indeed, the table demonstrates that Cullen vacillated between denying fatigue and other symptoms and complaining of them - the shaded rows in the table highlight the visits at which he denied fatigue and other symptoms. For someone alleging to have always been fatigued and always informed his doctors, the information reflected in the table demonstrates otherwise.

At the very least, there is substantial evidence supporting a finding that Cullen's allegations of the severity of his fatigue and of his complete inability to use a CPAP machine are not entirely consistent with the medical evidence. The fact that there is also evidence pointing the other way is not a basis for this Court to overturn the ALJ's decision; rather the Court must defer to it. See Kessler v. Colvin, 48 F.Supp.3d 578, 595 (S.D.N.Y. 2014) (“A federal court must afford great deference to the ALJ's credibility finding, since ‘the ALJ had the opportunity to observe [the claimant's] demeanor while [the claimant was] testifying.' ... Accordingly, so long as the credibility determination is supported by substantial evidence, this Court may not disrupt the ALJ's findings.”) (quoting Marquez v. Colvin, No. 12-CV-6819, 2013 WL 5568718, at *7 (S.D.N.Y. Oct. 9, 2013)); see also Spampinato v. Saul, No. 20-CV-0959, 2022 WL 3300181, at *12 (E.D.N.Y. Aug. 10, 2022) (“Because the ALJ thoroughly explained his credibility determination and the record evidence, the Court will not substitute its own opinion for that of the ALJ”) (citing Cichocki v. Astrue, 534 Fed.Appx. 71, 76 (2d Cir. 2013)).

2. Opinion Evidence

ALJ Stacchini also appropriately considered the opinion evidence in reaching his credibility determination with respect to Cullen. (R. 1031-33.) See Mercedes P. v. Commissioner of Social Security, No. 20-CV-08693, 2023 WL 1779546, at *6 (S.D.N.Y. Feb. 6, 2023) (“The ALJ's assessment of Plaintiff's credibility ... was supported by substantial evidence (including medical opinion evidence)”). The ALJ accorded significant weight to Dr. Andersen's opinions that Cullen could perform light work and that there was no “significant documentation” to support Cullen's alleged “daytime sleepiness in the treatment records,” especially because Cullen's “primary care provider consistently showed findings of intact alertness, orientation, and concentration at visits” and Dr. Andersen “did not see any evidence in the record that [Cullen] had reported the lack of tolerance of the CPAP machine.” (R. 1031-32.) The ALJ noted that Dr. Andersen had “relevant medical training,” is “an impartial medical expert [with] specialized knowledge of the requirements of the disability program under the . Act and its accompanying regulations,” and “provided a detailed rationale in support of his opinion with citation to the relevant evidence of record.” (Id.)

In contrast, the ALJ accorded minimal weight to the opinions of Drs. Trapasso and Pazos. (R. 1032-33.) With respect to Dr. Trapasso's undated, half-page letter, the ALJ found the opinion “vague and conclusory” without “a specific function-by-function assessment.” (R. 1032.) He also noted that, despite Dr. Trapasso stating that he always discussed with Cullen his inability to tolerate the CPAP machine, the first time Dr. Trapasso recorded that Cullen was not using the CPAP machine - again, this does not necessarily mean that he could not tolerate it - was on February 17, 2012. (Id.) See Schillo v. Kijakazi, 31 F.4th 64, 76 (2d Cir. 2022) (upholding the ALJ's decision that did not afford controlling weight to the opinions of Schillo's treating physicians because “their opinions were conclusory, unhelpful with respect to assessing RFC, and inconsistent with the objective medical evidence”); see also Winters v. Commissioner of Social Security, No. 18-CV-4070, 2019 WL 4743822, at *16 (S.D.N.Y. Sept. 16, 2019) (“In light of the absence of any specific functional limitations identified by any of plaintiff's treating physicians ..., the ALJ did not err in giving those opinions ‘little' weight”).

Finally, the ALJ accorded minimal weight to Dr. Pazos' opinion that Cullen's diagnosis was “sleep apnea” but his prognosis was “[g]ood, on CPAP.” (R. 1032-33.) The ALJ explained that although Dr. Pazos noted that Cullen's OSA “does cause him fatigue,” he was “not ... specific in terms of quantifying the fatigue.” (R. 1033.) However, Dr. Pazos in fact indicated that Cullen's OSA does not cause fatigue. (See R. 1004, 1008.) ALJ Stacchini therefore erred in his assessment of Dr. Pazos' opinion and perhaps the weight he assigned to the opinion. His error is harmless, however as Dr. Pazos' actual opinion - the absence of fatigue - is contrary to Cullen's allegations of the severity of his symptoms and further supports the ALJ's determination. See Franco v. Saul, No. 16-CV-5695, 2020 WL 4284157, at *16 (S.D.N.Y. July 27, 2020) (“Any error committed by the ALJ may be deemed harmless if it did not affect the outcome of the ALJ's decision”).

The medical opinion evidence - the ALJ's weighing of which Cullen does not challenge - thus provides further substantial evidence supporting the ALJ's determination regarding the extent and limitations of Cullen's claimed symptoms.

3. Daily Activities

ALJ Stacchini then scrutinized Cullen's daily activities and found that they too did not support his allegations of the severity of his symptoms and limitations. (R. 1033-34.) The ALJ emphasized that, despite his complaints of persistent fatigue, Cullen “reported no problems taking care of his personal care activities, needing no help or reminders to take care of his personal needs, grooming, or taking medication .., getting around daily independently by walking or driving a car ., shop[ing] weekly for groceries ., and [going] to church once a week,” as well as doing some childcare, picking up his children from extracurricular events, attempting to attend their events, “his involvement in chores” around the house, occasionally cooking, golfing, and bowling, and helping at the tavern his family owned, among other things. (Id.)

Some courts in this Circuit have upheld an ALJ's determination finding that such daily activities undermine a claimant's statements about severe symptoms and limitations. See, e.g., Watson v. Berryhill, 732 Fed.Appx. 48, 52 (2d Cir. 2018) (upholding the ALJ's adverse credibility determination because, “although Watson and his mother described long periods of sleep and inactivity, the ALJ observed that Watson had ‘reported working a temporary job during the relevant period, playing basketball, composing music as therapy, and grocery shopping one to two times monthly,'” among other things); Milliner v. Berryhill, No. 16-CV-5744, 2017 WL 3671521, at *7 (S.D.N.Y. July 31, 2017) (upholding the ALJ's adverse credibility determination because “the evidence showed that the plaintiff was able to engage in activities of daily living, such as dressing, bathing, managing money, driving and regularly attending church services”), R. & R. adopted, 2017 WL 3668994 (S.D.N.Y. Aug. 23, 2017); Killings v. Commissioner of Social Security, No. 15-CV-8092, 2016 WL 4989943, at *14 (S.D.N.Y. Sept. 16, 2016) (upholding the ALJ's adverse credibility determination because, among other things, Killings “reported taking her six-year-old daughter to school, driving, and doing some chores, such as washing dishes,” “walking for about thirty minutes per day,” and “socializ[ing] with friends”), R.& R. adopted sub nom. Killing v. Commissioner of Social Security, 2016 WL 6952342 (S.D.N.Y. Nov. 28, 2016); Maslin v. Colvin, No. 11-CV-8709, 2014 WL 1088284, at *12 (S.D.N.Y. March 14, 2014) (upholding the ALJ's adverse credibility determination when the ALJ “took into consideration Maslin's own testimony concerning the activities she engaged in on a daily basis, noting that she was able to cook, do small loads of laundry and light shopping, socialize with friends, go out to dinner and drive a car”), R. & R. adopted sub nom. Maslin v. Commissioner of Social Security, 2014 WL 1395017 (S.D.N.Y. Apr. 10, 2014).

But the assessment of daily activities is fact-sensitive and dependent on the particular circumstances of each case. Accordingly, courts in this District also have rejected an ALJ's findings that a claimant's daily activities were inconsistent with the extent of their purported symptoms and limitations. See, e.g., Feliz v. Kijakazi, No. 20-CV-9355, 2022 WL 2900797, at *13 (S.D.N.Y. July 22, 2022) (reversing an ALJ for “incorrectly cit[ing] to Feliz's performance of daily activities as evidence of her ability to manage and reduce her anxiety,” when those daily activities included “Feliz's ability to take walks, clean her house, and help her children with homework”); Mitchell v. Colvin, No. 09-CV-5429, 2013 WL 5676289, at *7 (E.D.N.Y. Oct. 17, 2013) (“evidence of a claimant's ability to complete household chores does not defeat a claim for disability”) (citing Woodford v. Apfel, 93 F.Supp.2d 521, 529 (S.D.N.Y. 2000)). “'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.'” Guadalupe v. Commissioner of Social Security, No. 21-CV-0278, 2022 WL 20289704, at *10 (S.D.N.Y. Aug. 9, 2022) (citing Cabibi v. Colvin, 50 F.Supp.3d 213, 238 (E.D.N.Y. 2014)), R. & R. adopted, 2022 WL 3716269 (S.D.N.Y. Aug. 29, 2022).

In Cullen I, Judge Francis reversed ALJ Rodriguez's adverse credibility determination and decision, faulting ALJ Rodriguez for, among other things, “devot[ing] significant attention to the plaintiff's description of his daily activities [and] concluding that these activities are not limited to the extent one would expect given the plaintiff's statements about his limitations.” Cullen I, 2016 WL 3144050, at *7 (internal quotation marks omitted). Judge Francis reasoned, “the activities he lists - cooking and cleaning, shopping, walking for short periods, handling his personal finances, watching television, and so forth - are in no way inconsistent with the plaintiff's alleged need to sleep during the day.” Id. (internal quotation marks omitted). Although ALJ Stacchini, like ALJ Rodriguez, cited Cullen's daily activities as being inconsistent with his stated symptoms, the Court need not decide whether Cullen's daily activities are consistent or inconsistent with his allegations of fatigue, because, as described above, there is substantial evidence from the medical record and opinion evidence to support the ALJ's adverse credibility determination.

4. Routine And Conservative Treatment

Finally, ALJ Stacchini found significant that Cullen's treatment was “relatively routine and conservative.” (R. 1034-35.) As with daily activities, courts have reached differing conclusions about whether an ALJ erred in finding that a claimant's routine or conservative treatment undermined their credibility with respect to their claimed symptoms and limitations. Compare Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008) (“The fact that a patient takes only over-the-counter medicine to alleviate her pain may, however, help to support the Commissioner's conclusion that the claimant is not disabled if that fact is accompanied by other substantial evidence in the record”); Paz v. Commissioner of Social Security, No. 15-CV-6353, 2017 WL 1082684, at *34 (S.D.N.Y. Feb. 1, 2017) (“The ALJ also appropriately noted that, despite Plaintiff's complaints of disabling symptoms, his treatment had been sporadic and relatively routine and conservative”) (internal quotation marks and brackets omitted), R. & R. adopted, 2017 WL 1078573 (S.D.N.Y. March 20, 2017) with Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000) (stating that a non-intrusive medical treatment is not substantial evidence that a plaintiff is not disabled); Alonso v. Berryhill, No. 17-CV-4769, 2018 WL 4997512, at *24, *27 (S.D.N.Y. Sept. 27, 2018) (finding it “was error for the ALJ to discredit Plaintiff's testimony because of her supposed ‘conservative and routine' course of treatment” because it was “highly questionable that Plaintiff's course of treatment, which involved multiple types of medications, including anti-depressants, anti-inflammatory drugs, and pain medication, as well as cortisone and epidural steroid injections, can be properly characterized as ‘conservative'”).

As with Cullen's daily activities, however, the Court need not determine whether Cullen's treatment is conservative and routine such as to undermine his allegations of the severity of his symptoms and limitations because, as explained above, the ALJ's adverse credibility determination is substantially supported by the medical and opinion evidence in the record. See Selimaj v. Berryhill, No. 17-CV-3389, 2019 WL 1417050, at *9 (S.D.N.Y. March 29, 2019) (“Even if Plaintiff's treatment was not considered ‘conservative,' this finding would not be outcome-determinative in light of the substantial evidence in the record which supports the ALJ's determination that Plaintiff is not as severely impaired as he alleges”).

To be clear, however, there are aspects of Cullen's treatment, or lack thereof, that do further support the ALJ's credibility determination. For example, the ALJ highlighted that, “despite alleging that his disability began on August 26, 2005,” and despite a prior course of treatment with otolaryngologist Dr. Pazos from November 10, 2006 to January 12, 2007, Cullen did not report symptoms associated with OSA until December 2008. (R. 1034.) The ALJ also found it “notable that [Cullen] did not return to Dr. Pazos, or any other specialist, for further treatment options after December 2009” “[d]espite [his] allegations of an inability to tolerate the CPAP mask and machine with resultant symptomology.” (R. 1035.) Additionally, Dr. Andersen testified that for an individual who was unable to tolerate a specific CPAP machine, that individual could try alternative masks or machines and even surgical options were available. (R. 1074.) Yet, there is no evidence in the record that Cullen did so.

In light of all of the foregoing, the ALJ's credibility determination was amply supported by substantial evidence.

CONCLUSION

For the reasons stated above, pursuant to sentence four of 42 U.S.C. § 405(g), Cullen's motion should be DENIED, and the Commissioner's motion should be GRANTED. To the extent not discussed herein, the Court has considered all of Cullen's arguments and determined them to be moot or without merit.

DEADLINE FOR FILING OBJECTIONS AND PRESERVING APPEAL

Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Any party shall have fourteen (14) days to file a written response to the other party's objections. Any such objections and responses shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Arun Subramanian, United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, at United States Courthouse, 500 Pearl Street, New York, New York 10007. Any request for an extension of time for filing objections must be addressed to Judge Subramanian. Failure to file timely objections will result in a waiver of the right to object and will preclude appellate review.

APPENDIX OF CULLEN'S VISITS TO HIS DOCTORS

Doctor Date of visit Complains of “fatigue”? Complains of “sleep problems”? Other notes Citation to the record Dr. Pazos 10-Nov-06 No No R. 248 Dr. Pazos 13-Nov-06 No No R. 251-54 Dr. Pazos 15-NOV-06 No No R. 250 Dr. Pazos 12-Jan-07 No No R. 249 Dr. Trapasso 18-Sep-08 No No R. 320-22 Dr. Trapasso 10-Dec-08 No No “not sleeping well due to busy work schedule"; “may have some sleep apnea” and suggests an evaluation R. 317-19 Dr. Pazos 15-Dec-08 Yes No Complains of snoring; diagnoses “Hypersomni[a] w Sleep Apnea” R. 232-36 Dr. Pazos 20-Feb-09 No No Complains of snoring; diagnoses “Hypersomnia with Sleep Apnea” R. 227-31 Dr. Pazos 8-Mar-09 Yes No Complains of snoring but "problem has improved”; diagnoses “Hypersomni[a] w Sleep Apnea” R. 213-16 Dr. Trapasso 12-Mar-09 No No “awaitin[g] CPAP machine”; “had significant apnea" R. 313-16 Dr. Pazos 27-Mar-09 No No “Tolerated CPAP well”; snoring “improved”; diagnoses "Hypersomnia with Sleep Apnea” R. 224-26 Dr. Pazos 24-Apr-09 Yes No “Tolerated CPAP well"; complains of snoring but "problem has improved" R. 220-23 Dr. Pazos 27-Apr-09 Yes No R. 217-19 Dr. Pazos 8-May-09 Yes No Complains of snoring but "problem has improved”; diagnoses “Hypersomni[a] w Sleep Apnea” R. 213-16 Dr. Pazos 15-May-09 Yes No Complains of snoring but "problem has improved" R. 209-12 Dr. Pazos 29-May-09 Yes No Complains of snoring but "problem has improved" R. 205-08 45 Dr. Pazos 19-Jun-09 Yes No Complains of snoring but "problem has improved”; diagnoses “Hypersomni[a] w Sleep Apnea” R. 201-04 Dr. Trapasso 1-Jul-09 No No “sleep is better since ENT procedure with Dr. Pazos'; “breathing much better” R. 309-12 Dr. Pazos 2-N0V-O9 No No Complains of snoring but "problem has improved" R. 197-200 Dr. Pazos 14-Dec-09 Yes No Complains of snoring but "problem has improved” R. 193-96 Dr. Trapasso 9-Apr-10 No No Denies fatigue, difficulty breathing at night; lists sleep apnea as current problem; described as “alert” with “normal attention span and concentration" R. 323-26 Dr. Trapasso (Kim Knowles) 15-Jul-10 No No Denies fatigue; lists sleep apnea as current problem R. 327-31 Dr. Trapasso 28-Oct-10 No No Denies fatigue and obstructive sleep apnea/snoring; lists sleep apnea as current problem; described as “alert" with “normal attention span and concentration” R. 332-36 Dr. Trapasso 7-Apr-11 No No Denies fatigue and obstructive sleep apnea/snoring; lists sleep apnea as current problem; described as “alert” with “normal attention span and concentration” R. 337-41 Dr. Trapasso 17-Feb-12 Yes No Lists fatigue and sleep apnea as current problems; “not using CPAP machine”; “Complains of... sleep disorder”; “Complains of obstructive sleep apnea/snoring"; described as “alert" with “normal attention span and concentration" R. 342-48 Dr. Trapasso 21-Dec-12 Yes No Lists fatigue and sleep apnea as current problems; “not using CPAP machine”; “Complains of... fatigue”; described as “alert” with “normal attention span and concentration" R. 349-54 46 Dr. Trapasso 3-Apr-13 Yes No Lists fatigue and sleep apnea as current problems; “not using CPAP machine”; “Complains of obstructive sleep apnea/snoring”; “Complains of ... fatigue”; described as “alert” with “normal attention span and concentration” R. 355-60