Opinion
20-CV-557 (LTS) (BCM)
09-14-2021
LUIS SEGARRA, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
THE HON. LAURA TAYLOR SWAIN
REPORT AND RECOMMENDATION
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE
Plaintiff Luis Segarra filed this action pursuant to § 405(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final determination of the Commissioner of Social Security denying his application for Disability Insurance Benefits (DIB). Now before me for report and recommendation are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Plaintiff primarily argues that the Administrative Law Judge (ALJ) erred in failing to fully credit his subjective complaints regarding the symptoms associated with his frequent sinus infections. For the reasons that follow, I respectfully recommend that plaintiffs motion (Dkt. No. 19) be denied, that the Commissioner's motion (Dkt. No. 23) be granted, and that the case be dismissed.
I. BACKGROUND
A. Personal Background
Plaintiff Segarra was born on November 26, 1965. See Certified Administrative Record (Dkt. No. 10) (hereinafter "R.") at 186. He completed an associate's degree in 2004. (R. 203.) He worked as a police officer for the New York Police Department (NYPD) from 1986 to 2006, including on September 11, 2001, when he was a first responder after the terrorist attacks on the World Trade Center (WTC). (R. 203, 648.) He performed search and recovery in the first few days after 9/11, and thereafter remained in "the pit" for six months, safeguarding the scene. (R. 45- 46.) He retired from the NYPD in 2006, after 20 years, and then worked as a security guard. (R. 38, 203, 221-25, 254.) In his last job, from June 2014 until June 2016, he served as a security/fire safety officer at a church, insuring the safety of students, staff, and parishioners. (R. 225.)
Plaintiff had a long history of frequent sinus infections, beginning while he was still an active NYPD officer, more than ten years prior to the alleged onset of his disability. (R. 42-45, 286-418.) He also had a long-standing human immunodeficiency virus (HIV) infection, well-controlled by medication. (R. 290-418.) In 2015, he was certified to have four "WTC-Related" conditions: chronic rhinitis, unspecified asthma, chronic obstructive pulmonary disease (COPD), and chronic sinusitis. (R. 471.)
In a Function Report dated August 15, 2016, submitted in connection with his DIB application, plaintiff complained of fevers, night sweats, persistent cough, diarrhea, severe headaches, and nausea. (R. 214.) He wrote that he was constantly using the bathroom, due to diarrhea (R. 215), and that his wife prepared his meals and did the sweeping and mopping, because he got "off balance" due to his medications (R. 216), which also made him dizzy and drowsy, limiting his ability to go out by himself. (Id.) Plaintiff added that his antiviral medication sometimes made him feel "foggy" (R. 219), and that medication interactions sometimes caused "confusion." (R. 220.) The Function Report did not specifically mention plaintiffs sinus infections.
B. Procedural Background
Plaintiff applied for DIB on July 21, 2016, alleging disability since June 16, 2016 due to chronic sinusitis, chronic rhinitis, COPD, asthma, gastrointestinal reflux disease (GERD), a neck injury, and HIV infection. (R. 186, 202.) On September 20, 2016, the Social Security Administration (SSA) denied the claim, finding that plaintiffs condition was "not severe enough to keep [him] from working." (R. 118.) Plaintiff requested a hearing before an administrative law judge (R. 126) and on August 8, 2018, he appeared with counsel and testified before ALJ Seth Grossman. (R. 33-98.) Hugh Savage, M.D., appeared and testified as a medical expert (ME), and Christine Boardman appeared and testified as a vocational expert (VE). (R. 56, 86.)
In a written decision dated November 2, 2018 (Decision), ALJ Grossman found that plaintiff had the residual functional capacity (RFC) to perform light work, so long as he was not exposed to concentrated chemicals or pollutants, and that given his RFC he was capable of performing his past relevant work as a security guard. (R. 22-27). On that basis, the ALJ concluded that plaintiff was not disabled within the meaning of the Act. (R. 28.) On April 5, 2019, the Appeals Council denied review (R. 1-3), making the ALJ's determination final. (R. 1-5.)
On January 21, 2020, plaintiff commenced this civil action.
II. MEDICAL EVIDENCE
A. Medical Evidence Before Plaintiffs Alleged Onset Date
Between 2005 and 2015, plaintiff sought treatment for sinus infections at least twice a year, and sometimes more often, usually visiting the DOCS Medical Practice (DOCS) in Yonkers, New York. From time to time, he required treatment for other conditions as well. For example, on December 15, 2005, he was diagnosed with sinusitis and herpes after he complained of nasal congestion for three to four days with headache and sinus pressure. (R. 286.) On September 20 and again on December 18, 2006, he was diagnosed with acute sinusitis with symptoms of cough, post-nasal drop, sinus pain, left ear pain, left neck pain, and expectoration. (R. 287-88, 297-99.) His December 18 treatment record also noted that plaintiff was HIV positive, that he was taking Atripla, and that his CD4 count was ">500." (R. 297.) In April and again in September 2007, plaintiff was assessed with acute sinusitis and allergic rhinitis after complaining of cough, nasal congestion, and post-nasal drip. (R. 302-03, 304-06.) In January, April, and August 2008, plaintiff sought treatment for conditions including strep throat, acute upper respiratory infection, acute bronchitis, chronic maxillary sinusitis, and allergic rhinitis (hay fever), with symptoms of sore throat, cough, expectoration, nasal congestion, and fever. (R. 307-309, 310-312, 313-315.) On August 10, 2009, he was again diagnosed with acute maxillary sinusitis and allergic rhinitis with symptoms of sore throat and sinus pressure. (R. 319-21.)
Atripla is a "triple therapy" medication used to treat HIV infection. See Efavirenz, Emtricitabine, and Tenofovir (Oral Route), Mayo Clinic, https://www.mayoclinic.org/drugssupplements/efavirenz-emtricitabine-and-tenofovir-oral-route/description/drg-20068963. CD4 cells are white blood cells that fight infection. "A CD4 count is used to check the health of the immune system in people infected with HIV." CD4 Lymphocyte Count, Natl. Insts. of Health, https://medlineplus.gov/lab-tests/cd4-lymphocyte-count/. A normal CD4 count is 500-1, 200 cells per cubic millimeter. Id. (All cited websites last visited September 13, 2021.) It is not clear from the medical records now before the Court when plaintiff was first diagnosed as HIV positive. Compare R. 290 (reporting plaintiff's "HIV +" status on September 27, 2006) with R. 410 (stating that plaintiff disclosed his status on May 30, 2015, and had "never reported being HIV + on his prior visits"); see also R. 280 (lab test results, dated June 29, 2011, confirming plaintiff's HIV-1 infection).
On January 7, 2010, plaintiff complained of sinus pressure and was again diagnosed with acute maxillary sinusitis and allergic rhinitis. (R. 325-26.) In January and February 2010, Dr. Stanley Yankelowitz at ENT & Allergy Associates in the Bronx, New York, diagnosed moderate sinusitis with associated symptoms of headache, facial pressure, and nasal obstruction. (R. 263.) A February 13, 2010 CT scan of the sinuses revealed moderate nasal septal deviation towards the left side. (R. 267.) Dr. Yankelowitz recommended surgery to correct the deviation. (R. 274-77.) At his March 10, 2010 pre-operative appointment with Dr. Stephane Conte at DOCS, plaintiff had "no complaints," reported that he occasionally used a Proventil inhaler for asthma, and said that he "works out with bike riding 2 miles." (R. 327.) His pulmonary function test results were normal. (R. 330.) Dr. Yankelowitz performed the surgery on April 5, 2010. (R. 274-77.)
Proventil, a brand name for albuterol, is a bronchodilator that "open[s] up the bronchial tube (air passages) in the lungs," which helps "relieve cough, wheezing, shortness of breath, and troubled breathing." Albuterol(InhalationRoute), Mayo Clinic, https://www.mayoclinic.org/drugs./albuterol./drg-20073536?p=1/.
On July 9, 2010, plaintiff was diagnosed with herpes simplex and herpes zoster. (R. 334.)On July 26, 2010, he was treated for a cyst on his right side and an abscess on his left buttock. (R. 335.) He was diagnosed with "cellulitis and abscess of trunk" and prescribed a course of Augmentin. (R. 336.) On December 23, 2010, plaintiff saw Dr. Conte with complaints of sinus pain and headache. (R. 337.) He also had an outbreak of herpes simplex and reported that the abscess had healed, but then reopened. (Id.) Dr. Costa prescribed Augmentin to address both the cellulitis and the sinusitis. (Id.)
The herpes simplex virus (HSV) produces lesions commonly known as cold sores or fever blisters, typically affecting the mouth and/or the genitals. Cold Sore, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/cold-sore/symptoms-causes/syc-20371017. Herpes zoster, caused by the varicella-zoster (chickenpox) virus, is a painful rash commonly known as shingles. Shingles, Mayo Clinic, https://www.mayoclinic.org/diseasesconditions/shingles/symptoms-causes/syc-20353054.
Cellulitis is a common but "potentially serious" bacterial skin infection. Cellulitis, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/cellulitis/symptoms-causes/syc-20370762. Augmentin is a brand name for a combination of two antibiotics, amoxicillin and clavulanate. Amoxicillin and Clavulanate (Oral Route), Mayo Clinic, https://www.mayoclinic.org/drugssupplements/amoxicillin-and-clavulanate-oral-route/description/drg-20072709.
In March, September, and November 2011, plaintiff complained of nasal congestion, nasal septal ulcers, and cold or flu symptoms, and was diagnosed with carbuncle, sinusitis, allergic rhinitis, and extrinsic asthma. (R. 339, 341-42, 351-53.) In March and October 2012, he again sought treatment for sinusitis and acute respiratory infection, reporting sinus pressure, sinus infection, and headache, and was prescribed Augmentin and azithromycin. (R. 357-60.)
Azithromycin (sold under various brand names, including "Zithromax Z Pak") is a broad-spectrum antibiotic "used to treat certain bacterial infections in many different parts of the body." Azithromycin (Oral Route), Mayo Clinic, https://www.mayoclinic.org/drugssupplements/azithromycin-oral-route/description/drg-20072362.
In 2013, plaintiff sought treatment at DOCS for recurrent sinusitis, headache, fever, nasal congestion, and worsening asthma symptoms, was diagnosed with acute recurrent sinusitis and mild persistent asthma (R. 364-71), and was started on Symbicort. (R. 367.) On February 25, 2013, Dr. Edward Gross noted that plaintiff had "sinusitis, recurrent with deviated septum," despite his sinus surgery, and "intermittent asthma that is aggravated recently." (R. 365.) On November 30, 2013, plaintiff complained of "recurrent wheezes," and acknowledged that he had not used his Symbicort inhaler consistently. (R. 369.)
Symbicort, administered via inhaler, is a combination of medications used to control symptoms and improve lung function when a patient's asthma has not been controlled sufficiently on other asthma medicines. Budesoide and Formoterol (Inhalation Route), Mayo Clinic, https://www.mayoclinic.org/drugs-supplements/budesonide-and-formoterol-inhalationroute/description/drg-20068949.
In 2014, plaintiff repeatedly sought treatment for sinus congestion with headache, as well as sore throat and ophthalmic zoster, including on January 8, January 21, February 22, July 16, July 25, July 29, and October 13. (R. 373-92.)
Ophthalmic zoster, sometimes known as ophthalmic shingles, is a rash caused by the varicella-zoster virus and typically involves the skin of the forehead and the upper eyelid. What are Eye Shingles? Mayo Clinic, https://newsnetwork.mayoclinic.org/discussion/mayo-clinic-minutewhat-are-eye-shingles/. If not promptly treated, ophthalmic zoster could "cause permanent damage to your vision." Id.
On January 24, 2015, plaintiff complained of upper respiratory symptoms. (R. 400.) He still had a healing zoster rash over his right temple and eye region. (Id.) He also complained of PHN (post-herpetic neuralgia) and requested a prescription for Amitriptyline. (Id.) Dr. Jyoti Kini at DOCS prescribed Augmentin. (Id.) Throughout the remainder of 2015, plaintiff sought frequent treatment at DOCS for nasal infections, upper respiratory symptoms, throat pain, cough, congestion, asthma, and diarrhea, including in February, April, May, August, October, and December. (R. 400-05, 410, 414, 420-23, 427, 429, 431.) He was assessed at various times that year with shingles, acute upper respiratory infection, pharyngitis with persistent symptoms, allergic rhinitis, acute maxillary sinusitis, mild persistent asthma with acute exacerbation, colitis enteritis, and gastritis, and was prescribed antibiotics in January, August, September, and December. (R. 400, 405, 413-14, 416, 420, 423-24, 427, 430.)
Amitriptyline is a tricyclic antidepressant which is also used to treat "post-herpetic neuralgia (the burning, stabbing pains, or aches that may last for months or years after a shingles infection)," and to prevent migraine headaches. Amitriptyline, Nat'l Inst. of Health, https://medlineplus.gov/druginfo/meds/a682388.html.
Also in 2015, plaintiff was seen at the Mount Sinai Medical Center WTC Health Program (WTC Program). At his May 22, 2015 appointment, plaintiff reported that over the past 12 months, he had experienced symptoms of "coughing, wheezing, shortness of breath, frequent headaches, sinus, nasal, throat spasm/closure, throat irritation, sleep, and nausea." (R. 459.) Plaintiff's pulmonary function test results that day showed "[l]ow [v]ital capacity possibly due to restriction of lung volumes." (R. 485.) However, the report cautioned: "Maneuvers Not Reproducible - Interpret with Care." (Id.) Moreover, according to the treatment notes for the May 22 visit, plaintiff's "lung function [had] not changed significantly" since his previous visit. (R. 459.)
The administrative record does not contain any earlier pulmonary function test results from the WTC Program.
On October 5, 2015, plaintiff was assessed by pulmonologist Dr. Linda Rogers at Mount Sinai, through the WTC Program, with "poorly controlled severe persistent asthma without complication." (R. 450.) On October 8, 2015, plaintiff saw Nurse Practitioner Jennifer Charles with complaints of rhinitis/sinusitis, GERD, and asthma. (R. 593.) On October 29, 2015, plaintiff was certified by the WTC Program to have four "WTC-Related" conditions: chronic rhinitis, unspecified asthma, chronic obstructive pulmonary disease, and chronic sinusitis. (R. 471.) Both his obstructive airway disease and his upper respiratory disease were "certified" as "covered for treatment benefits." (R. 438.)
During his hearing before ALJ Grossman, plaintiff confirmed that he received benefits from the "World Trade Center fund." (R. 46.)
On June 2, 2016 - two weeks before the alleged onset of his disability - plaintiff saw Dr. Kini (who by that date was affiliated with the Medical Offices of Manhattan) for treatment of a "sinus infection for 3-4 days," with congestion, low-grade fevers, recurring headaches, generalized abdominal discomfort, and loose stool. (R. 488.) Plaintiff reported that he was compliant with his HIV medication and that his last CD4 count was over 700. (R. 488.) Dr. Kini assessed acute sinusitis, acute otitis media (ear infection), and allergic asthma, and prescribed antibiotics and inhalers. (R. 489.)
On June 10, 2016, plaintiff returned to the WTC Program and reported that over the past 12 months, he had experienced upper and lower respiratory symptoms and GERD. (R. 477.) A pulmonary function test conducted that day showed "[l]ow [v]ital capacity possibly due to restriction of lung volumes." (R. 483.) Specifically, plaintiffs FVC (forced vital capacity) was 62% of the predicted volume, compared to 73% the year before, and his FEV1 (forced expiratory volume during the first one second of the test) was 69% of the predicted value, compared to 78% the year before. (R. 485, 483.) Nurse Practitioner Yvette Doan-Schultz wrote that his "lung function may have worsened," but noted that his physical exam was normal. (R. 442.)
B. Medical Evidence After Plaintiffs Alleged Onset Date
After June 16, 2016, plaintiff continued to seek frequent treatment for chronic sinus infections and other conditions, including asthma. On July 14, 2016, he saw Dr. Kini for "acute . . . chronic sinus infection for the past 2-3 days with a pound[ing] headache." (R. 573.) On exam, plaintiffs lungs were clear to auscultation with no wheezing, but he had sinus tenderness, mild tonsillar adenopathy, and mildly erythematous pharynx. (Id.) He denied abdominal pain, changes in bowel movements, chest pain, or shortness of breath. (Id.) Dr. Kini diagnosed chronic recurrent sinusitis, prescribed Levaquin, and recommended that plaintiff use a nasal saline rinse and humidifier (R. 490, 574.) Eight days later, on July 22, 2016, plaintiff had a cardiac stress test. He "was asymptomatic with good exercise capacity," and the test revealed no evidence of significant coronary ischemia, significant valvular disease, or pulmonary hypertension at peak stress. (R. 569.) During that visit, plaintiff denied a wide variety of symptoms, including "feeling tired, generally not feeling well, sleep problems, fever/chills, high or low energy level" and said he had "no problems with vision, hearing, or taste, ear/eye/sinus/tooth pain, chronic nasal stuffiness or discharge, post nasal drip." (R. 568.) He also denied diarrhea, constipation, or other bowel problems. (Id.)
Levaquin is a quinolone antibiotic. Levofloxacin (Oral Route), Mayo Clinic, https://www.mayoclinic.org/drugs-supplements/levofloxacin-oral-route/description/drg20064518.
On September 7, 2016, plaintiff saw Dr. Kini with complaints of a "chronic persistent sinus infection for the past 1.5 months." (R. 563.) Plaintiff reported he had "fever and night sweats at his baseline," but his energy level was "fair" and he denied cough, shortness of breath, or gastrointestinal symptoms. (R. 563-64.) He complained of pain with walking, which he said another doctor had told him was due to his "HIV affecting his bones." (R. 563-64.) On exam, plaintiff had clear lungs and normal pharynx (throat), but displayed sinus tenderness, buccal mucosa tenderness, and left cervical lymphadenopathy. (R. 564.) Dr. Kini assessed chronic recurrent sinusitis, noted that plaintiff was "still symptomatic" after completing a course of Levaquin, and referred him to "ENT." (R. 564.)
On January 1, 2017, while visiting Florida, plaintiff saw Dr. Rathinam Moorthy, complaining of pain in his right hip and a sinus infection. (R. 629-30.) He denied headaches, dyspnea, wheezing, or cough. (R. 629.) On exam, his nose and lungs were clear but he had restricted movement of the lumbosacral spine. (Id.) Dr. Moorthy diagnosed acute sinusitis, lumbago with sciatica, bronchial asthma, and hypertension, and prescribed a "Z pack." (R. 630.)
On March 31, 2017, plaintiff saw Dr. Kini in New York for a nasal infection with fever, headaches, congestion, and thick mucus for the past five days, as well as a "mild cough," but reported that before that he was otherwise "asymptomatic with no chest pain, shortness of breath, exertional symptoms, dizziness, palpitations, or fatigue." (R. 560, 660.) On exam, his lungs were clear but his nose was swollen. (R. 561.) Plaintiff was prescribed a 7-day course of Augmentin and "advised strongly to follow up with ENT." (R. 562.) On June 6, 2017, plaintiff saw Dr. Kini again for a sinus infection. He and reported "feeling frontal and maxillary sinus pressure for past 3.5 days with chills and dry cough, runny nose with green mucus," but he denied dyspnea or fatigue. (R. 557.) Plaintiff was again prescribed Augmentin and advised to use Flonase (an over-the-counter nasal spray), saline spray, and a humidifier. (R. 558.) Plaintiff reported that his headaches were under "good control with medication," and said he had not followed up with a "previously advised neurology consult." (R. 559.) Plaintiff also told Dr. Kini that his asthma was controlled with his inhalers. (Id.)
On October 24, 2017, plaintiff had an annual physical, and during which he reported that he "started getting [symptoms] of sinus infection 2 days ago with front sinus pressure," but had no fever, chills, cough, or shortness of breath. (R. 553.) He also reported migraines, once or twice per week, but denied fatigue or diarrhea. (Id.) Plaintiff was assessed with chronic recurrent sinusitis and advised to use over-the-counter remedies. (R. 555.) His asthma was again noted to be controlled with medications. (Id.)
On January 5, 2018, plaintiff visited an urgent care center in the Bronx with acute sinusitis and was prescribed amoxicillin. (R. 514.) On April 18, 2018, he saw Dr. Moorthy in Florida, complaining of a sinus infection, but denied headaches, dyspnea, wheezing, or cough, and reported "no change in strength or exercise tolerance." (R. 627.) An exam showed a clear nose and clear lungs. (R. 627-28.) No antibiotics were prescribed at that visit. (Id.)
On May 14, 2018, plaintiff visited Dr. Yevgenity Vaynkof at the Medical Offices of Manhattan for a "BP [blood pressure] followup," and also reported a fever and "mild yellow-greenish mucous" for the past four to five days. (R. 549.) Plaintiff denied fatigue, respiratory or exertional symptoms, gastrointestinal symptoms, or dizziness. Plaintiff was assessed with chronic recurrent sinusitis, prescribed Augmentin, and advised to use Flonase, saline spray, and a humidifier. (R. 550-51.) He told Dr. Vaynkof that he had "[c]ontrolled [his] migraines with amitriptyline." (R. 551.) His asthma was again noted to be "[c]ontrolled with Ventolin, singulair, and symbicort." (R. 551.) Three days later, on May 17, 2018, when plaintiff visited Dr. Moorthy in Florida, he made no complaints, no symptoms of any sort were noted, and no abnormal exam findings were noted. (R. 625.) Dr. Moorthy diagnosed plaintiff with benign hypertension (his blood pressure was 128/82 at that visit) and lumbago, and told him to return in two months. (Id.)
On July 23, 2018, plaintiff visited Nurse Practitioner Charles at Mount Sinai and had a repeat pulmonary function test. (R. 635-38.) His FVC was 67% of the predicted volume (improved from 62% in 2016) and his FEV1 was 78% of the predicted value (improved from 69% in 2016). (R. 635.) The results once again indicted "[l]ow vital capacity possibly due to restriction of lung volumes." (Id.) Plaintiff reported that during the past 12 months he experienced "wheezing, sinus, nasal, voice hoarseness, headaches." (R. 638.) On exam, however, the only abnormal findings were "nasal redness and swelling." (Id.)
On July 24, 2018, plaintiff saw Dr. Kini in New York for an annual physical. He reported pain in his left nostril but denied fever, chills, fatigue, malaise, or weakness. (R. 696.) On exam, plaintiffs lungs were clear but he had nasal sores in the septum and left nostril. (R. 698.)
C. Written Opinion Evidence
1.September 2016 Consultative Examination by Dr. Ravi
On September 6, 2016, occupational medical specialist Ram Ravi, M.D. examined plaintiff for purposes of his DIB application. (R. 504-08.) Plaintiff reported neck pain since 2010, asthma since 2001, and COPD since 2011, but said his respiratory conditions were "asymptomatic and stable." (R. 504.) His HIV infection was also "stable," with a CD4 count of 700 and an "undetectable viral load." (Id.) He reported no difficulties with activities of daily living except that "[c]leaning is limited due to pain." (R. 505.) On exam, plaintiffs ears, nose, and throat were normal and his lungs were clear, but his cervical range of motion was limited and he could only squat to "20% of maximum." (R. 505-06.) A pulmonary function test conducted that day showed that plaintiffs FVC was "72% of predicted, mild reduction" (improved from 62% at Mount Sinai on June 10, 2016) and his FEV1 was "79% of predicted, mild reduction" (improved from 69% on June 10). (R. 507, 510-12.) Dr. Ravi noted that although plaintiff cooperated with the test to the best of his ability, he "could not sustain to hold blowing out" even after redirection. (R. 510.) The test results therefore included a caution: "Poor session quality. Interpret with care." (R. 511.)
Dr. Ravi opined that plaintiff had "no limitation with sitting or standing" but had "moderate limitations to bending, pushing, pulling, lifting, carrying, and overhead activities" and "should avoid driving and squatting due to his neck pain." (R. 507.) Dr. Ravi added that plaintiff "should avoid driving, operating machinery, heights, and any irritants due to his history of asthma and COPD." (Id.)
2.May 2018 Consultative Examination by Dr. Salon
On May 15, 2018, internist Aurelio Salon, M.D. examined plaintiff for purposes of his DIB application. (R. 528-41.) Plaintiff's chief complaints were "HIV, acute and chronic sinus infections, hypertension, bronchial asthma, severe headaches, diarrhea, and fatigue." (R. 528.) Plaintiff reported that he had been diagnosed with HIV "about 8 years ago," started on medications 6 months later, but "still has intermittent diarrhea." (Id.) He had contracted two cases of oral thrush, and had night sweats and "daily fatigue," had never been hospitalized, and at his last T-cell count his "viral load was undetectable." (R. 528.) Plaintiff reported that his last attack of bronchial asthma was six months prior. He told Dr. Salon that he had been having sinus infections for about two and a half years, and "headache almost daily," which might be related to the sinus infections. (Id.) He added that he sometimes became nauseous and dizzy secondary to his sinus problems. (Id.)
Plaintiff reported that he lived with his sister, who did most of the cooking and cleaning. (R. 529.) Plaintiff could do "limited laundry and shopping," and could shower and dress himself. (Id.) His squat was "1/2 of full," and his physical examination was otherwise unremarkable, including "normal nose," "normal throat," clear lungs, full strength in the upper and lower extremities, and a full range of motion in the cervical spine. (R. 530.) Dr. Salon concluded that "there are no objective findings to support the fact that [plaintiff] would be restricted in his ability to sit or stand or in his capacity to climb, push, pull, or carry heavy objects." (R. 531.) Dr. Salon completed a Medical Source Statement in which he opined that plaintiff could lift and carry up to 100 pounds continuously; could sit, stand, and walk for eight hours in a workday; and had no postural or environmental limitations. (R. 532-36.)
3. June 2018 Letter from Dr. Vaynkof
On June 18, 2018, Dr. Vaynkof provided a one-paragraph letter summarizing plaintiff's symptoms and treatment at the Medical Offices of Manhattan. (R. 634.) Dr. Vaynkof wrote that plaintiff had been a patient at that practice since June 2016 and that his primary care physician was Dr. Kini. (Id.) He noted plaintiff's history of asthma, hypertension, chronic sinus infections, HIV infection, intermittent headaches, pre-diabetes, history of a cyst removal from his neck in 2012, and history of sinus surgery in 2014, as well as his status as a 9/11 responder. (R. 634.) Dr. Vaynkof wrote that during plaintiff's visit on May 14, 2018, he had reported subjective symptoms of a possible sinus infection, and that while "[t]he frequency or severity of his symptoms is not clear," plaintiff "does appear[ ] to have recurrent sinus infections from available records and patient's provided history." (Id.) Dr. Vaynkof concluded: "His sinus symptoms can certainly impair his ability to do full time work however I would advise him to follow up with his ENT and Pulmonologist to further determine the severity of his symptoms and expected prognosis." (Id.)
The administrative record does not include any treating notes regarding a second sinus surgery in 2014.
4. Undated Letter from Dr. Kini
In an undated letter, faxed to plaintiff's counsel on July 24, 2018, Dr. Kini wrote that Plaintiff had been her patient since 2008 and that, as a result of his work at the World Trade Center site, he "has been suffering from ongoing chronic asthma and sinus issues." (R. 642, 648.) Dr. Kini noted that plaintiff had "sinus surgery back in 2014 with no improvements," and that "as a treatment for chronic and recurring sinus infections, he receives oral antibiotics . . . more than 2-3 times a year, ever since he has been under my care." (R. 648.) Dr. Kini added that plaintiff's "sinusitis infection has worsened his migraines and has limited his ability to work." (Id.)
III. HEARING
A. Plaintiffs Testimony
At the August 8, 2018 hearing before ALJ Grossman, plaintiff testified that he could no longer work due primarily to his recurrent sinus infections, which, he said, he had been getting "on and off for years," but "in the last few years" they occurred "frequently," as often as four to five times a year, typically requiring 10 days of antibiotics. (R. 42-45.) Plaintiff stated that his nasal surgery in 2010 helped his symptoms "at the beginning," but only for about two years. (R. 48.) Plaintiff testified that when he had a sinus infection, he could not drive, had to lay down, got chills and fevers, had mucous build-up in his nose, had headaches, and felt tired and fatigued. (R. 44, 48.) He also stated that the infections typically lasted two to three weeks, during which he stayed at home. (R. 44-45.) In addition to the sinus symptoms themselves, plaintiff explained, the antibiotics he had to take for the infections interacted with his HIV medications and caused upset stomach, diarrhea, and drowsiness. (R. 45, 50.)
Thereafter, under examination by his own attorney, plaintiff testified more broadly that his HIV medication "sometimes gets me foggy," causing him to nap, "[s]ometimes twice a day," even when he did not have a sinus infection (R. 48-49), and also causing nausea symptoms. (R. 50.) Additionally, plaintiff stated, his blood pressure medication made him "dizzy" and made his ankles swell up. (Id.)
Plaintiff testified that he lived with his sister, and that he picked up his clothes, but his sister did the laundry. (R. 50-51.) Plaintiff could shop for groceries when he was "feeling good." (R. 52.) Plaintiff told the ALJ that he did not do any exercise and did not go for walks because overexertion, especially in hot or cold weather, triggered his asthma. (R. 53.) Plaintiff added that he did not go out for entertainment because he was "constantly in need of finding a restroom" due to his medications, which gave him diarrhea. (R. 54.)
B. Dr. Savage's Testimony
Dr. Savage, who did not personally examine plaintiff, attended the hearing as a medical expert and testified based on his review of the record (including the testimony at the hearing itself). (R. 56-86.) Dr. Savage testified that plaintiff's impairments did not meet or equal the severity of any listing (R. 61) and noted that his HIV condition appeared to be "extremely well-treated," such that "the immunity is not that impaired." (R. 60.) With regard to plaintiff's sinus infections, Dr. Savage remarked that "in the progress notes I did not see significant frequency to the extent that was described." (R. 60.)
During plaintiff's testimony, he stated that he had experienced several opportunistic infections, including thrush, mouth sores, and shingles. (R. 41.) He also stated that he had been hospitalized for pneumonia, but did not give the date. (Id.) When the ALJ noted that "we don't have" the records from that hospitalization, plaintiff's attorney interjected, stating, "Mr. Segarra, correct me if I'm wrong, I don't think that the reason you're not work[ing] is because of the HIV, is it?" (R. 42.) Plaintiff responded, "No, I like to work, I just - I get a lot of sinus infections." (Id.)
Under cross-examination from plaintiff's attorney, Dr. Savage testified that he was aware that many World Trade Center first responders experienced pulmonary effects, including COPD and a decreased ability to fight infection. (R. 64.) With regard to plaintiff's pulmonary function test results, Dr. Savage testified that while they were not "normal," they were "pretty normal," "on the normal side more certainly," and "looked fairly good." (R. 61, 64, 68.)
During this discussion Dr. Savage referred to "Exhibit 5F Page 3" (R. 61), meaning the report of plaintiff's May 22, 2015 pulmonary function test at the WTC Program. (R. 485.) Dr. Savage was not asked specifically about plaintiff's later pulmonary function tests.
Dr. Savage also testified that there was "[n]ot usually" any interaction between the antibiotics that plaintiff was prescribed for his sinus infections and his HIV medication (R. 81-82), and that he did not see any evidence in the medical records that plaintiff was suffering from "any significant side effects of the medication" on "any consistent basis." (R. 83.) He acknowledged that any medication "can cause fatigue," but "they don't always do that." (R. 84.) The "more important factor," he said, is the underlying illness, explaining that "when you have a respiratory infection, you feel sapped, many times, and so . . . most of us just go to work and then come home and go right to bed." (Id.)
C. Christina Boardman's Testimony
VE Boardman testified that plaintiffs past relevant work was as a police officer (DOT 375.263-014), a skilled, "medium" strength job with an SVP of 6, and a security guard (DOT 372.667-034), a semi-skilled, "light" job with an SVP of 3. (R. 86.) Ms. Boardman testified that a police officer's skills were transferrable to the "sedentary" work of a police aide (DOT 243.362-014), except for the skill of providing information to the public over the telephone. (R. 88-91.)
The ALJ then asked the VE whether a hypothetical claimant with Mr. Segarra's vocational and educational background, who retained the RFC to perform the full range of medium work, but should not be exposed to concentrated chemicals or pollutants, could perform either the police officer job or the security guard job "as performed" by plaintiff. (R. 91-92.) VE Boardman testified that such a hypothetical claimant could not perform the police officer job but could perform plaintiffs prior job as a security guard. (R. 93.) The ALJ then asked the same question about a hypothetical claimant who could do "the full range of light work," but should not be exposed to concentrated chemicals or pollutants. (R. 94.) Such a claimant, according to VE Boardman, could also perform the security guard job "as performed" by plaintiff. (Id.)
On cross-examination, VE Boardman testified that employers generally allowed one absence per month, and that it would not be acceptable for an employee working as a security guard to take" several day absences four or five times per year" due to illness. (R. 96.)
IV. THE ALJ'S DECISION
A. Standards
A claimant is "disabled," and therefore eligible for benefits under the Act, if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). The 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).
In his November 2, 2018 Decision, the ALJ correctly set out the five-step sequential evaluation process used pursuant to 20 C.F.R. § 404.1520(a)(4) to determine whether a claimant over the age of 18 is disabled within the meaning of the Act. (R. 20-21.) The Second Circuit has described the sequence as follows:
First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a "severe impairment" that significantly limits her physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1 . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (citation omitted).
If it is determined that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not progress to the next step. 20 C.F.R. § 404.1520(a)(4). A claimant bears the burden of proof as to the first four steps; the Commissioner bears the burden at the fifth step. See Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). To support a finding that the claimant is not disabled at step five, the Commissioner must offer evidence demonstrating that other work exists in significant numbers in the national and local economies that the claimant can perform given her residual functional capacity (RFC), age, education, and relevant work experience. See 20 C.F.R. §§ 404.1512(b)(3), 404.1560(c). In this Circuit, "the ALJ must call a vocational expert to evaluate a claimant's significant non-exertional impairments in order to meet the step five burden." Lacava v. Astrue, 2012 WL 6621731, at *18 (S.D.N.Y. Nov. 27, 2012) (citations omitted), report and recommendation adopted, 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012).
Prior to steps four and five, the ALJ must determine the claimant's RFC, based on all of the relevant medical and other evidence in the record, including the claimant's credible testimony, objective medical evidence, and medical opinions from treating and consulting sources. 20 C.F.R. §§ 404.1520(a), 404.1545(a)(3). For DIB claims filed before March 27, 2017 - as this one was -the ALJ must weigh the medical opinion evidence in the record in accordance with the standards set out in 20 C.F.R. § 404.1527(c).
B. Application of Standards
In his Decision, the ALJ found that plaintiff met the insured status requirements of the Act through December 31, 2020. (R. 21.) He then found, at step one, that plaintiff had not engaged in substantial gainful activity since June 16, 2016, the alleged onset date of his disability. (R. 21.)
At step two, the ALJ found that plaintiff had the following severe impairments: "HIV; chromic sinusitis/rhinitis with history of infections and headaches; asthma/COPD; and hypertension." (R. 21.) These conditions, he explained, "significantly limit the ability to perform basic work activities as required by SSR 85-29." (R. 21.) The ALJ also noted "sporadic references to back pain" in the record, as well as evidence that plaintiff was treated for GERD, and acknowledged that plaintiff testified to "significant problems with recurrent diarrhea." (Id.) However, he found, the record failed to establish that these conditions were "severe." (R 21-22.)
At step three, the ALJ found the plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any of the conditions listed in 20 C.F.R. Part 404, subpart P, Appendix 1. (R. 22.) Plaintiff does not challenge the ALJ's determinations at steps one through three.
Before proceeding to step four, the ALJ determined that plaintiff had the RFC to perform "light" work, except that he could not be exposed to concentrated chemicals or pollutants. (R. 22.) In the course of determining plaintiff's RFC, the ALJ accepted that plaintiff's medically determinable impairments, including his sinus infections, "could reasonably be expected to cause the alleged symptoms," but concluded that plaintiff's statements concerning the "intensity, persistence and limiting effects of these symptoms are not entirely consistent" with the medical and other evidence in the record. (R. 22.) The ALJ noted, among other things, that plaintiff's sinus infections long predated the alleged onset date of his disability, but did not keep him from working (and earning an income "well in excess of substantial gainful activity") during those years. Further, the ALJ wrote, the record "fails to document" any "deterioration in the claimant's condition which occurred on or around the alleged onset date" of June 16, 2016. (R. 23.) He further reasoned that although plaintiff's pulmonary function tests were "indicative of significant pulmonary impairment," they were not performed "subsequent to bronchodilator use," which "somewhat limit[s] their evidentiary importance," and in any event were not consistent with an impairment meeting or equaling any relevant Listing. (R. 23-24.)
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities." 20 C.F.R. § 404.1567(b).
The ALJ then reviewed the medical records since the alleged onset of plaintiff's disability, pointing out that the same treating notes that documented his recurrent sinus infections also documented that plaintiff frequently denied chest pain, wheezing, shortness of breath, or other respiratory symptoms (with or without exercise), and further denied symptoms of dizziness, weakness, or fatigue, as well as (in most instances) bowel problems. (R. 24-25.) Indeed, at his stress test in August 2016 (approximately six weeks after his alleged onset date), plaintiff reported "being asymptomatic with good exercise capacity." (R. 24.) Thus, the ALJ reasoned, "claimant's testimony regarding the length of these sinus infections and their effect on [his] ability to perform normal daily activities is . . . not supported by the record." (R. 25.) The ALJ added that plaintiff's testimony about being "essentially homebound during sinus infections" was further undermined by the fact that he "apparently traveled between Florida and New York and back to Florida in a short period of time" amidst sinusitis episodes. (R. 25.)
Plaintiff was seen by Dr. Moorthy in Florida on April 18, 2018, for a sinus infection (R. 627); by Dr. Vaynkof in New York on May 14, 2018, for another sinus infection (R. 549); and then by Dr. Moorthy in Florida three days later, on May 17, 2018, at which point he was apparently symptom-free. (R. 625.)
Turning to the opinion evidence, the ALJ gave "significant weight" to the opinion of the Dr. Savage, because he "reviewed the entire medical record," and "some weight" to the opinions of consultative examiners Dr. Ravi and Dr. Salon. (R. 25.) However, ALJ Grossman wrote, Dr. Ravi's opinion that plaintiff had moderate limitations on his ability to bend, push, pull, lift, carry, and perform other activities "due to neck pain" were "vague and not supported by the evidence of record," while Dr. Salon's view that plaintiff had "no" functional limitations was "not consistent with the medical documentation in the file." (Id.)
The ALJ gave "consideration" to the letter from treating physician Dr. Kini, opining that plaintiff's sinus infections worsened his headaches and thus limited his ability to work. However, the ALJ noted, plaintiff "was advised on multiple occasions to have a neurological consult to assess his migraine headaches, but did not do so." (R. 25.) As for Dr. Vaynkof's letter, it "noted that the frequency and severity of the claimant's symptoms were not clear," while also confirming that plaintiff had been advised to follow up with his ENT and pulmonologist, "to further determine the severity of his symptoms and expected prognosis." (R. 25-26.) Both of the treating physicians' letters were "relevant," the ALJ wrote, for the additional reason that "they fail[ed] to mention any significant medication related problems which the claimant experienced in his treatment," and advised plaintiff to follow up with his ENT and pulmonologist "if he believed his sinus symptoms were severe enough." (R. 26.) The ALJ concluded that plaintiff's treatment records from the Medical Offices of Manhattan "document that the claimant had significant functional capacity based on his completion of cardiac stress testing as well as his statements that he had few respiratory or other symptoms." (Id.)
At step four, the ALJ found that plaintiff could perform his past relevant work as a security guard. (R. 26.) Although this finding, if upheld, would end the inquiry, the ALJ proceeded to step five and made an "alternative finding" that plaintiff could also perform the sedentary job of police aide (DOT 243.362-014), using transferable work skills he acquired as a police officer. (R. 26- 27.) The ALJ then concluded that plaintiff was not disabled at any time from June 16, 2016, through the date of the Decision. (R. 28.)
The VE did not testify as to how many police aide jobs were available in the national or local economy, and consequently the ALJ did not make any finding in that regard.
V. ANALYSIS
A. Standards of Review
Both parties have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). To prevail on such a motion, a party must establish that no material facts are in dispute and that she is entitled to judgment as a matter of law. Sellers v. M.C Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988); Claudio v. Commissioner of Social Security, 2017 WL 111741, at *1 (S.D.N.Y. Jan. 11, 2017). The law governing cases such as this is clear. The reviewing court "may set aside an ALJ's decision only where it is based upon legal error or where its factual findings are not supported by substantial evidence." McClean v. Astrue, 650 F.Supp.2d 223, 226 (E.D.N.Y. 2009) (citing Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998)); accord Longbardi v. Astrue, 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). Thus, the district court must first decide whether the Commissioner applied the correct legal standards. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). If there was no legal error, the court must determine whether the ALJ's decision was supported by substantial evidence. Tejada, 167 F.3d at 773; Calvello, 2008 WL 4452359, at *8.
"Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1970)). "In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Longbardi, 2009 WL 50140, at *21 (citing Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)). However, the reviewing court's task is limited to determining whether substantial evidence exists to support the ALJ's fact-finding; it may not reweigh that evidence or substitute its judgment for that of the ALJ where the evidence is susceptible of more than one interpretation. "[O]nce an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (emphasis in original) (quotation marks and citation omitted). The same standard applies to "inferences and conclusions drawn from such facts," Williams v. Colvin, 2015 WL 1223789, at *7 (S.D.N.Y. Mar. 17, 2015), which the reviewing court is obligated to accept if supported by substantial evidence. Id.; accord, Marchand v. Sullivan, 1991 WL 183355, at *2 (S.D.N.Y. Sept. 11, 1991). Thus, the substantial evidence standard is "a very deferential standard of review - even more so than the 'clearly erroneous' standard." Brault, 683 F.2d at 448 (citation omitted); see also Brown v. Colvin, 73 F.Supp.3d 193, 198 (S.D.N.Y. 2014).
B. The Parties' Contentions
Plaintiff contends that the ALJ erred in concluding that plaintiffs subjective complaints of pain and other symptoms were "not entirely consistent" with the medical and other evidence of record. Pl. Mem. (Dkt. No. 20) at 20. In particular, plaintiff takes issue with the ALJ's statement that "the record fails to document deterioration in plaintiffs condition around the June 2016 alleged onset date," id., pointing out that plaintiffs pulmonary function test results worsened between 2015 and 2016, id. at 20-21, and asserting that his sinus infections increased in frequency from approximately twice a year to "every three months" beginning in June 2016. Id. at 21. Further, plaintiff argues, the ALJ "gave no adequate consideration for Mr. Segarra's exemplary work history," id. at 22, which should have entitled him to "substantial credibility when claiming an inability to work." Id. (quoting Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983)).
The Commissioner responds that the Decision was "free of legal error" and based on substantial evidence. Def. Mem. (Dkt. No. 24) at 16. The Commissioner argues that the ALJ "followed the required two-step credibility analysis" under 20 C.F.R. § 404.1529, and therefore that his decision is "entitled to deference," Evans v. Colvin, 649 Fed.Appx. 35, 39 (2d Cir. 2016) (summary order), so long as it is supported by substantial evidence. Id. at 16-17. In this case, the Commissioner contends, the ALJ acknowledged the pulmonary function test results on which plaintiff relies, as well as the frequency of his sinus infections, but also appropriately considered the evidence undermining plaintiffs' claim of disabling symptoms, including the improved pulmonary function test results after the alleged onset date and plaintiff's frequent denial, to his treating physicians, of many of the same "limiting symptoms" that he testified to at the hearing, including fatigue, shortness of breath, and other "exertional symptoms." Def. Mem. at 20. Additionally, the Commissioner argues, both of the consultative opinions in the record, although given "only some weight" by the ALJ, "supported Plaintiff's ability to perform at least light work" despite his impairments. Id. at 22. The Commissioner adds that the ALJ properly acknowledged that plaintiff worked "for [a] number of years" after 9/11, and that he was not required to explicitly reference that "good work history" as a credibility factor given the substantial evidence supporting his determination. Id. at 23.
Although I do not accept every point made in the Commissioner's brief, I agree that the ALJ did not err in evaluating plaintiff's credibility and that his finding on this point, as well as his determination of the plaintiff's RFC, was based on substantial evidence and therefore should not be disturbed by this Court.
C. The ALJ Did Not Err in Evaluating Plaintiffs Subjective Complaints
A claimant's own statements regarding his pain, fatigue, or other limiting symptoms cannot - alone - establish a disability. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). The SSA's regulations provide a two-step process for evaluating those statements:
At the first step, the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged. 20 C.F.R. § 404.1529(b). That requirement stems from the fact that subjective assertions of pain alone cannot ground a finding of disability. 20 C.F.R. § 404.1529(a). If the claimant does suffer from such an impairment, 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. Id.Genier, 606 F.3d at 49 (emphasis in original). At the second step, when considering the "intensity and persistence" of the claimant's symptoms, the ALJ must consider "all of the available evidence," both medical and non-medical, including opinion evidence. 20 C.F.R. § 404.1529(c).
Relevant factors include the claimant's "daily activities"; the "location, duration, frequency, and intensity" of the pain or other symptoms; "[precipitating and aggravating factors"; the "type, dosage, effectiveness, and side effects of any medication" taken to alleviate the symptoms; the treatment (other than medication) that the claimant receives; any measures used "to relieve [the] pain or other symptoms"; and any "[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).
As with any other finding of fact, "[a]n ALJ's credibility finding as to the claimant's disability is entitled to deference by a reviewing court." Rivera v. Berryhill, 2018 WL 4328203, at *10 (S.D.N.Y. Sept. 11, 2018) (citing Osorio v. Barnhart, 2006 WL 1464193, at *6 (S.D.N.Y. May 30, 2006)). Thus, a district court will not "second-guess" the ALJ's credibility finding "where the ALJ identified specific record-based reasons for his ruling," Stanton v. Astrue, 370 Fed.Appx. 231, 234 (2d Cir. 2010) (summary order), and where the finding is supported by substantial evidence. Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013).
Here, the ALJ did not err when he wrote that the record "fails to document deterioration in the claimant's condition which occurred on or around the alleged onset date." (R. 23.) It is true, as plaintiff points out, that his pulmonary function test results from Mount Sinai showed a decrease in lung function between May 2015 and June 2016. The ALJ acknowledged this, characterizing the June 2016 results (showing that plaintiff's FVC was 62% of predicted, while his FEV1 was 69% of predicted) as "indicative of a significant pulmonary impairment." (R. 23.) He also noted, however, that pulmonary function testing performed by Dr. Ravi that same year showed that plaintiff's FVC was "72% of predicted, mild reduction," while his FEV1 was "79% of predicted, mild reduction." (R. 507, 510-12.) Moreover, he pointed out, the fact that the tests were not performed post-bronchodilator "somewhat limit their evidentiary importance." (R. 24.)
The ALJ mistakenly stated that Dr. Ravi's consultative exam was performed in June 2016. (R. 24.) It was actually performed on September 6, 2016. (R. 504-12.) I do not consider this error consequential.
The ALJ was also entitled to consider what plaintiff told his treating physicians, after his alleged onset date, on July 14, July 19, and August 1, 2016: that he had no chest pain, shortness of breath, or other exertional symptoms; no dizziness, fatigue, or bowel problems; and had "good exercise capacity." (R. 24; see R. 566, 570-71, 573.) These statements are particularly significant given plaintiff's hearing testimony that his sinus infections, and related drug interactions, caused him to feel "tired" and "fatigued," "messed up" his stomach, and gave him diarrhea (R. 44-45), and that even when he did not have a sinus infection he was "foggy," "drowsy," "nauseous" and "dizzy," and could not exercise or go out for entertainment. (R. 48-50, 52-54.)
Similarly, the ALJ neither ignored nor mischaracterized the record with regard to the frequency of plaintiff's sinus infections. In the Decision, he thoroughly discussed the treatment notes reflecting plaintiff's illnesses during the relevant time period (R. 24), including the five sinus infections he suffered in 2015, well prior to his alleged onset date. (R. 400, 403, 407, 410, 413.) The ALJ also explained, correctly, that the real issue was not the frequency of plaintiff's sinus symptoms, but rather his functional capacity while experiencing those symptoms. (R. 24.) It is therefore significant, and the ALJ properly took into account, that even while suffering a sinus infection - with sinus pressure, nasal congestion, and headache - plaintiff repeatedly denied more limiting symptoms like fatigue, shortness of breath, wheezing, or other exertional symptoms. (R. 24; see R. 549, 553, 560, 577, 660, 672, 696.) Moreover, as against plaintiff's testimony that he was "essentially homebound during sinus infections," the ALJ correctly noted that on at least one occasion he "traveled to and from Florida and back again while suffering a sinus infection" (R. 26), thus indicating that after his alleged onset date - as before - plaintiff retained "some significant functional ability even when suffering a sinus infection." (R. 26; see R. 549, 625, 627.)
Plaintiff was not prescribed antibiotics for all of these infections. In his reply brief, plaintiff emphasizes that he only required antibiotics for one (or possibly two) of his five sinus infections in 2015, whereas he was prescribed antibiotics for sinus infections three times in 2016, four times in 2017, and four times in 2018. Pl. Reply Mem. (Dkt. No. 25) at 1-2. The short answer to this line of argument is that it is the responsibility of the ALJ to weigh the medical evidence before him. Brault, 683 F.3d at 448. If that means anything, it means that it is the ALJ's province, not the Court's, to determine whether having three sinus infections in one year, all treated with antibiotics, constitutes "evidence of deterioration" compared to having five sinus infections the year before, only one (or two) of which were treated with antibiotics.
Nor did the ALJ err in "failing to consider . . . Mr. Segarra's 30 year work record." Pl. Mem. at 23. The ALJ did consider that record. (R. 23.) To the extent plaintiff suggests that his good work record required ALJ Grossman to credit his testimony about his pain and other symptoms, that is not the law:
To be sure, "a good work history may be deemed probative of credibility." Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir.1998); see also Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir.1983) (noting that evidence of good work record is evidence of credibility). Work history, however, is "just one of many factors" appropriately considered in assessing credibility. Schaal, 134 F.3d at 502.Wavercak v. Astrue, 420 Fed.Appx. 91, 94 (2d Cir. 2011) (summary order). Nor is an ALJ required to specifically "reference" a claimant's good work history when analyzing credibility. Id.; see also Nelson v. Colvin, 2017 WL 1397547, at *13 (S.D.N.Y. Apr. 14, 2017) ("failure to specifically reference [plaintiffs] good work history" did not "undermine the credibility assessment, given the substantial evidence supporting the ALJ's determination") (quoting Wavercak, 420 Fed.Appx. at 94).
In short, because the ALJ identified specific record-based reasons for his credibility finding, and because that finding is supported by substantial evidence, this Court may not second-guess the ALJ's evaluation of plaintiffs subjective symptoms. Selian, 708 F.3d at 420; Stanton, 370 Fed.Appx. at 234.
D. Substantial Evidence Supported the ALJ's RFC Determination
A claimant's RFC is the most he can do despite his limitations. 20 C.F.R. § 404.1545(a)(1); see also SSR 96-8p, 1996 WL 374184, at *4 (S.S.A. July 2, 1996). The ALJ must assess the claimant's RFC based on all the relevant medical and other evidence of record, taking into consideration the limiting effects of all the claimant's impairments. See SSR 96-8p, 1996 WL 374184, at *2, 5. The relevant evidence includes the claimant's medical history, "effects of treatment," reports of the claimant's daily activities, medical source statements, "effects of symptoms," and "[e]vidence from attempts to work," among other things. Id. at *5.
Regardless of how many medical source statements the ALJ receives - or the weight he assigns to them - the determination of the claimant's RFC is reserved to the ALJ, who is not required to accept, or follow, any one medical opinion in toto. See Camille v. Colvin, 652 Fed.Appx. 25, 29 n.5 (2d Cir. 2016) (summary order) ("An ALJ may accept parts of a doctor's opinion and reject others."). "[I]t is the ALJ's prerogative to make an RFC assessment after weighing the evidence and the District Court may not reverse provided there is substantial evidence in the record to support her findings." Moronta v. Comm'r of Soc. Sec., 2019 WL 4805801, at *19 (S.D.N.Y. Sept. 30, 2019) (quoting Mitchell v. Astrue, 2010 WL 3070094, at *5 (W.D.N.Y. Aug. 4, 2010)).
In this case, there is substantial evidence to support the ALJ's determination that plaintiff can perform light work. (R. 22.) His treating records, as noted above, are somewhat inconsistent with his claim of persistent symptoms that would limit such work, in that he repeatedly denied fatigue and respiratory symptoms, and frequently denied bowel difficulties, even when in the midst of an episode of sinusitis, and told his physician that he had a "good capacity for exercise" after the alleged onset of his disability. (R. 553, 569.) Moreover, his September 2016 pulmonary function test showed only a "mild" reduction in his expected FVC and FEV1 (R. 507), and his physical examination results were largely unremarkable, other than intermittent nasal congestion, tenderness, and excess mucus. (R. 357-60, 558-60.)
The opinion evidence also supports (or at least does not conflict with) the ALJ's RFC determination. Dr. Savage cast significant doubt on plaintiff's claim that his medications - specifically, the interaction between his HIV medication and the antibiotics prescribed for sinus infections - caused a disabling level of fatigue or dizziness. (R. 81-83.) Plaintiff seizes on Dr. Savage's testimony that a person with a sinus infection may feel "sapped," and may "just go to work and then come home and go right to bed" (R. 84), arguing that while "most" individuals might be able to work through such an illness, it is a "questionable calculation" for plaintiff, who "has a compromised immune system due to HIV." Pl. Mem. at 22. The objective medical evidence, however, does not demonstrate that plaintiff had a compromised immune system. His HIV infection was consistently noted to be under good control, and plaintiff had a normal CD4 count and an "undetectable" viral load throughout the relevant period. (R. 488, 504, 650-52.)
Consultative examiner Dr. Salon opined that plaintiff had no functional limitations (R. 528-41), which of course would have supported an even less restrictive RFC. Consultative examiner Dr. Ravi identified a number of restrictions (R. 504-08), but all were based upon plaintiff's reported neck pain - which he did not mention at the hearing and on which he does not now rely to challenge the Decision. Plaintiff's treating physician Dr. Vaynkof wrote that "[t]he frequency or severity of his symptoms is not clear." (R. 634.) His primary care physician, Dr. Kini, wrote that he had been receiving oral antibiotics for sinus infections "more than 2-3 times a year, ever since he has been under my care," which long predated his alleged onset date. (R. 648.) And although Dr. Kini did state that his sinus infections "limited his ability to work," the only additional symptom she mentioned was migraines. (Id.) Her letter, like her treating notes, did not corroborate plaintiff's testimony that he was housebound for two to three weeks with each infection due to fever, fatigue, and diarrhea, nor his assertion that his medications caused disabling side effects apart from his episodes of sinusitis, nor his claim that he was unable to engage in any exertional activities due to his asthma.
To be sure, there is some evidence in the record that would support the conclusion that plaintiff had greater limitations than those the ALJ incorporated into his RFC determination. But that is not the test. "If the reviewing court finds substantial evidence to support the Commissioner's final decision, that decision must be upheld, even if substantial evidence supporting the claimant's position also exists." Johnson v. Astrue, 563 F.Supp.2d 444, 454 (S.D.N.Y. 2008). Having found that the ALJ's decision was free of legal error and supported by substantial evidence, I am required, under the “very deferential standard of review” that applies to ALJ fact-finding, to accept the Commissioner's RFC determination. Brault, 683 F.3d at 448; see also Blalock v. Berryhill, 2018 WL 6332896, at *14 (S.D.N.Y. Nov. 8, 2018) ("The existence of contrary evidence does not negate substantial evidence supporting the ALJ's decision.").
VI. CONCLUSION
For the reasons stated above, I respectfully recommend that plaintiffs motion (Dkt. No. 19) be DENIED, that the Commissioner's motion (Dkt. No. 32) be GRANTED, and that the case be DISMISSED.
SO ORDERED.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed. R. Civ. P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Laura T. Swain at 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Swain. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).