Opinion
21-CV-6502 (JLR) (BCM)
02-08-2023
CALVIN JEFFERY, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION TO THE HONORABLE JENNIFER L. ROCHON
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Calvin Jeffery brings this action pursuant to § 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking judicial review of a final determination of the Commissioner of Social Security (Commissioner) denying his claim for disability insurance benefits (DIB). Now before me for report and recommendation (see Dkt. 6) are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkts. 22, 31.) For the reasons that follow, I recommend that plaintiff's motion be denied, that the Commissioner's motion be granted, and that the case be dismissed.
Pursuant to Fed.R.Civ.P. 25(d), Kilolo Kijakazi, the current Acting Commissioner of Social Security, is substituted for former Acting Commissioner Andrew Saul as the defendant in this case.
I. BACKGROUND
Plaintiff was born on June 1, 1960. See Certified Administrative Record (Dkt. 14) (hereinafter "R.__ ") at 99. He is an army veteran, with "some college," who worked as a case manager at a social services agency from August 2014 until April 2017, when he was diagnosed with HIV/AIDS and stopped working. (R. 294, 429, 732-33.) Plaintiff applied for DIB on September 29, 2017, alleging disability since April 14, 2017, due to "[b]lind or low vision," anxiety, type 2 diabetes, AIDS, and muscular dystrophy. (R. 239-53, 283.)
On December 5, 2017, the Social Security Administration (SSA) denied his claim. (R. 111.) On January 11, 2018, plaintiff requested a hearing before an Administrative Law Judge (ALJ). (R. 124.) On January 19, 2018, the SSA notified him that the hearing could take place by video. (R. 126.) On January 24, 2018, plaintiff's then-counsel, at the Disability Help Group LLC (DHG), asserted plaintiff's right to an in-person hearing. (R. 141.) A year later, on January 3, 2019, DHG withdrew its representation of plaintiff. (R. 149.)
On March 21, 2019, the SSA notified plaintiff that his in-person hearing would take place on June 5, 2019. (R. 158.) On that day plaintiff appeared in person, without representation, before ALJ John Carlton. (R. 55.) At the start of the hearing, plaintiff elected to seek representation. (R. 58.) ALJ Carlton adjourned the hearing to allow plaintiff time to do so. (R. 58-59, 62-63.) Additionally, the ALJ questioned plaintiff about his recent medical treatment, explaining that he did not have "anything since 2017," but would obtain updated medical records. (R. 59-62.)
On October 9, 2019, plaintiff retained Nicole Siderits of Mobilization for Justice (MFJ). (R. 173.) On November 20, 2019, the SSA rescheduled plaintiff's hearing for February 5, 2020. (R. 174.) On that day, plaintiff appeared with counsel and testified. (R. 65-98.) There were no other witnesses. In a written decision dated October 19, 2020 (Decision), ALJ Carlton denied plaintiff's claim, concluding that he was not disabled within the meaning of the Act. (R. 10-21.) Review was denied by the Appeals Council on May 27, 2021 (R. 1), rendering the ALJ's determination final. This action followed.
II. SUMMARY OF RELEVANT MEDICAL EVIDENCE
A. Treating Providers
Plaintiff's primary care physician throughout most of the relevant period was family practitioner Peter Marcus, M.D., at the Claremont Family Health Center (Claremont). Dr. Marcus treated plaintiff for a total of 22 years. (R. 75.) Plaintiff also obtained care at the James J. Peters VA Medical Center (VAMC). (R. 80.) It was James Wendt, M.D., a VAMC internist and geriatrician, who diagnosed plaintiff with AIDS/HIV in April 2017. (R. 732-33.) In mid-2019, plaintiff transferred his primary care from Claremont to the VAMC, where he began seeing Norbert Brau, M.D., an infectious disease specialist. (R. 81-84.) The relevant portions of the records from both providers are summarized here.
Claremont treatment records from May 28, 2010, show that plaintiff - then 49 years old -was carrying diagnoses of hypertension (high blood pressure), anxiety, benign prostate hyperplasia (BPH), Type 2 diabetes, hyperlipidemia (high cholesterol), onychomycosis (toenail fungus), proteinuria (elevated protein levels in the urine), diabetic neuropathy, and herpes simplex ("not currently active"). (R. 927-929.) On December 3, 2010, benign paroxysmal vertigo was added to the list (R. 933), and in 2011 plaintiff presented with impotence (R. 935), left shoulder pain (R. 937, 939), carpal tunnel syndrome of the right wrist (R. 941, 43), and tinea pedis (athlete's foot). (R. 946.) From 2012 through 2015, that list remained fairly stable. In 2016, plaintiff developed gastroesophageal reflux disease (GERD). (R. 975.)
On January 12, 2017, plaintiff presented to Dr. Marcus with weight loss and depression. (R. 983.) On March 15, 2017, he went to the VAMC emergency room, complaining of weakness and loose stool. (R. 797.) After an EKG (id.), he was discharged with instructions to follow up with his primary care physician. (R. 796.) The next day, plaintiff returned to Dr. Marcus, complaining of fatigue, headache, and feeling cold in his bones. (R. 994.) On March 20, 2017, he reported feeling "helpless" due to continued weight loss, depression, and fatigue. (R. 1000.)
On April 7, 2017, plaintiff saw Dr. Wendt at the VAMC, seeking a second opinion regarding his ongoing weight loss and fatigue. (R. 788.) Plaintiff was "still going to work." (Id.) Dr. Wendt noted that plaintiff "had a fairly extensive workup by outside primary," but wrote that he would order additional, "zebra" tests. (R. 793.) On April 10, 2017, plaintiff returned to the VAMC emergency room, reporting that he felt weak and off balance, with poor appetite and cold chills for a month. (R. 754-55.) He also reported that his HIV status was negative. (Id.) Again, an EKG was done and plaintiff was discharged. (Id.)
Plaintiff's first wife died of AIDs in 1989. (R. 1188.) According to Dr. Brau's notes, plaintiff "remained HIV-neg at the time." (R. 1188.) The record suggests that plaintiff tested HIV-negative as late as 2015. (R. 834.)
On April 29, 2017, Dr. Wendt ordered an HIV test (R. 741-43), which came back positive. (R. 625, 738.) On May 2, 2017, Dr. Wendt informed plaintiff of the test result and assessed "probable AIDS wasting syndrome, possible candidiasis of esophagus" (oral thrush). (R. 732-33.) Plaintiff's HIV viral load at that time was 623,000 and his CD4 count was 75. (R. 657.)Dr. Wendt reassured plaintiff that HIV/AIDS is "readily treatable" and that his symptoms "will mostly resolve when he gets on a therapeutic regimen for his HIV." (R. 732.)
Acquired immunodeficiency disease (AIDS) is caused by the human immunodeficiency virus (HIV) and "characterized by the targeting and destruction of CD4 T lymphocytes in the peripheral blood." S.A. Battistini Garcia & N. Guzman, "Acquired Immune Deficiency CD4+ Count" (Aug. 8, 2022), available at https://www.ncbi.nlm.nih.gov/books/NBK513289/ (last visited February 8, 2023). "The loss of CD4 T lymphocytes will result in the inability to have a proper immune response." Id. A normal CD4 count is 500 to 1500 cells/mmA3, and "one of the indications for the diagnosis of AIDS is when CD4 cell count drops below 200 cells/mmA3." Id.
On May 11, 2017, plaintiff returned to Dr. Marcus, who started him on Bactrim (an antibiotic) and Genvoya (a combination treatment for HIV/AIDS). (R. 1014.) His CD4 count was 153. (R. 1011.) On May 20, plaintiff visited the VAMC emergency room complaining of pain from what proved to be a "small painful anal fissure with tiny hemorrhoid." (R. 399-403.) Plaintiff was discharged with topical medications and a stool softener. (R. 404, 406.) By June 8, 2017, plaintiff was "feeling much better." (R. 1023.) By June 22, 2017, his viral load had dropped to 390, though he reported feeling weaker again, with diminished appetite. (R. 1029.) By August 1, 2017, his viral load had dropped to 40, he was regaining weight, his depression screening was negative, and he did not report difficulties with appetite or fatigue. (R. 1035-38.) On December 14, 2017, his viral load was 80, and his CD4 count was improved at 386. (R. 386, 1065.) The patient remained stable, with an unchanged treatment plan, until July 10, 2018, when Dr. Marcus switched him to a different combination HIV medication, Biktarvy, due to "ddi [drug-drug interaction] concerns." (R. 1117, 1299.) On January 23, 2019, plaintiff had a viral load of 40 and a CD4 count of 868, well into the normal range. (R. 1320.) On April 25, 2019, he had a viral load of 40 and a CD4 count of 813. (R. 1165.)
The concern was that Genvoya could interact negatively with Flomax, which plaintiff was taking for his BPH. (R. 1117.)
Plaintiff returned to Dr. Wendt at the VAMC on May 3, 2019. (R. 665-666.) Dr. Wendt noted that plaintiff "had not been seen in primary care [at the VAMC] since May 2017 when he was diagnosed with being HIV positive" (R. 665), although he had visited a year earlier for a finger abscess. (Id.)Plaintiff's primary concern at the May 3, 2019 visit was erectile dysfunction. (R. 666.) Additionally, he wished to transfer his primary care "to infectious disease" at the VAMC. (R. 669.) Plaintiff's depression screening was negative (id.), his HIV viral load was less than 20 (the lower limit of the test), and his CD4 count was 773. (R. 657.)
On April 26, 2018, the wound was drained and determined to be a polymicrobial infection, for which a one-week course of antibiotics was prescribed. (R. 672-73.) When plaintiff returned for follow-up on May 4, 2018, the infection was resolved and the incision site "completely healed." (R. 671.)
On May 14, 2019, plaintiff had an initial visit with Dr. Brau at the VAMC. (R. 656-60.) His physical exam was unremarkable. (R. 657.) No ataxia or tremor was observed. (Id.) Dr. Brau noted that plaintiff's HIV infection was "undetectable" and he was "asymptomatic." (R. 658.) He continued to experience diabetic neuropathy, but had a "good response to gabapentin" and "denie[d] balance problems." (R. 659.) His chronic anxiety disorder was "[w]ell controlled on citalopram." (Id.). Dr. Brau noted that plaintiff's additional diagnoses included Type 2 diabetes mellitus, hyperlipidemia ("controlled on statin"), erectile dysfunction, BPH, GERD with erosive esophagitis, colonic polyposis, a history of alcoholism and crack cocaine addiction (in "sustained remission" since 1994), and hypogonadism, treated with regular testosterone shots. (R. 558-59.) On October 23, 2019, plaintiff's CD4 count was 932. (R. 1207.)
Both gabapentin and citalopram (Celexa) were initially prescribed by Dr. Marcus. (R. 914, 1076.)
On November 7, 2019, plaintiff visited Sheldon Brown, M.D. at VAMC for severe shoulder pain, which had persisted for several weeks. (R. 1240.) Dr. Brown ordered an MRI and referred plaintiff to "Orthopedics and Rehab consults." (Id.)
On November 21, 2019, plaintiff met with psychologist Samuel Krug at the VAMC. (R. 1231-38.) He presented with "moderate anxious symptoms" and "mild depressed mood symptoms." (R. 1232.) He had a history of panic attacks, but reported that he "hadn't had an attack" since he started on citalopram, nine years earlier. (R. 1234.) He was interested in therapy "to help him manage his mood symptoms, sexual health concerns, and improve his relationship with his spouse." (R. 1232.)
On November 25, 2019, plaintiff received an SCI (subacromial corticosteroid injection) to the shoulder, with "significant improvement of pain." (R. 1230-31.)
On December 12, 2019, radiologist Irene Hotalen, M.D., performed an X-ray of plaintiff's neck and spine, finding "multilevel disc height loss and endplate spondylosis with anterior osteophytes," but "[n]o evidence of instability" and "[n]o prevertebral soft tissue swelling." (R. 1198-99.) That same day, staff physician Nathan Bennington, M.D., conducted a CT scan of the same area, which showed "[n]o evidence for fracture or subluxation," but did reveal "[m]arked multilevel discogenic and degenerative changes," "[m]ultilevel high-grade neural forminal stenosis," and "[m]ild-to-moderate spinal canal stenosis." (R. 1199-1201.)
In 2020, plaintiff moved to Delaware, where he obtained care at the Wilmington, Delaware VA Medical Center. (R. 31-50.) On November 18, 2020, infectious disease specialist Robert Measley, M.D., provided an update on plaintiff's HIV treatment. (R. 31.) Plaintiff's viral load in August 2020 was 140 and in October 2020 was 130. (Id.) Dr. Measley reassured plaintiff that although there were some "blips" in his viral load, they were not associated with treatment failure "as long as they stay under 500." (Id.)
These records, which post-date the ALJ hearing, were submitted in connection with plaintiff's request for Appeals Council review. The Appeals Council declined to exhibit them. (R. 2.)
B. Treating Source Opinions
On September 6, 2018, Dr. Marcus completed a Residual Functional Capacity Assessment of plaintiff. (R. 515-18.) Dr. Marcus opined that plaintiff could reasonably be expected to sit in a regular office chair for six to eight hours out of an eight-hour workday, and had no difficulties standing and walking. (R. 515-16.) In Dr. Marcus's view, there were no limits on the amount of weight plaintiff could lift or carry. (R. 516.) Nor did he have any limitations on the use of his hands. (Id.)
On the same day, Dr. Marcus filled out a Mental Capacity Assessment (R. 519-23), opining that none of plaintiff's medications had side effects that limited his ability to function normally and productively, and none of his treatments or medications imposed any limitation on his ability to understand, remember, or apply information. (R. 519.) Dr. Marcus wrote that plaintiff was under no treatment or medication that limited his interactions with others, or impacted his concentration, persistence, and pace. (R. 520.) Similarly, no treatment or medication limited his ability to adapt or manage himself. (R. 521.) Dr. Marcus stated that, to his knowledge, plaintiff did not need help from others to perform day-to-day activities. (R. 521.) He opined that plaintiff had no issues following a schedule or maintaining attendance, and did not require any special accommodations due to mental health issues. (R. 522.)
On July 17, 2019, Dr. Wendt filled out a Medical Source Statement of Ability to Do Work-Related Activities. (R. 1182-87.)Dr. Wendt opined that plaintiff could never lift any weight, even up to 10 pounds. (R. 1182.) He could occasionally carry up to 10 pounds, but no more, due to "severe motor [and] nerve damage from a bout of Guillain-Barre. This has left him severely limited in his upper limb motor strength." (Id.)Dr. Wendt wrote that plaintiff could sit for one and a half hours at a time, could stand for 30 minutes at a time, and could walk for 10 minutes at a time. (R. 1183.) Over the course of an eight-hour workday he could sit for a total of five hours, stand for 75 minutes, and walk for 45 minutes. (R. 1183.) According to Dr. Wendt, plaintiff could never reach overhead, and could only occasionally reach in other directions, handle, finger, and push/pull (R. 1184), though he could continuously feel with his hands. (Id.) Dr. Wendt explained that his patient "has rotator cuff strain/impingement that prevents full elevation of shoulder; he has epicondylitis that limits markedly reaching; he is limited in his ability to finger things b/c of his weakness post Guillain Barre syndrome as well as push or pull things. He has a chronic long-standing tremor since 1989 - from Guillain Barre." (Id.) Dr. Wendt opined that plaintiff could occasionally use both feet to operate foot controls, but had residual weakness from Guillain-Barre that affected his lower extremities. (Id.) He also had numbness in the feet from diabetes, and varicose veins that swelled with sitting. (Id.) Plaintiff could never balance, stoop, or crouch, but could occasionally climb stairs and ramps, climb ladders or scaffolds, kneel, or crawl. (R. 1185.) However, "due to chronic neuropathy that has left him with residual weakness all of these activities are very limited. He cannot get up on his own when he is in kneeling position." (Id.)
It is not clear how Dr. Wendt came to fill out the Medical Source Statement. When plaintiff called the VAMC about the form on June 26, 2019, he stated that he had documents "that require Dr. Brau's signature" (R. 647-48), and when he delivered the form to the VAMC on July 1, 2019, he asked that the form be filled out "by PCP: Dr. Brau." (R. 646.)
Guillain-Barre syndrome "is a rare disorder in which your body's immune system attacks your nerves." Mayo Clinic, "Guillain-Barre syndrome," https://www.mayoclinic.org/diseases-conditions/guillain-barre-syndrome/symptoms-causes/syc-20362793 (last visited Feb. 8, 2023). "[M]ost people recover completely from Guillain-Barre syndrome," but "[s]ome people may have lasting effects from it, such as weakness, numbness or fatigue." Id. Plaintiff was hospitalized for Guillain-Barre syndrome in 1988. (R. 511.)
According to Dr. Wendt, plaintiff could never tolerate unprotected heights; moving mechanical parts; humidity and wetness; dust, odors, fumes, and pulmonary irritants; extreme heat; or vibrations. (R. 1186.). He could occasionally tolerate operating a motor vehicle and extreme cold. (Id.) Dr. Wendt added that plaintiff had panic attacks, anxiety, phobia of heights, benign positional vertigo, conjunctivitis, and neuropathy. (Id.) Dr. Wendt opined that plaintiff could not travel without a companion for assistance and could not use public transportation, due to his panic disorder and his balance disorder. (R. 1187.) As a final note, Dr. Wendt stated that plaintiff "suffers from chronic fatigue related to his Guillain-Barre syndrome and diabetes. He does have panic disorder and these conditions together limit his ability to work either extended or consistent patterns. They will not get better even with Rx." (Id.)
Dr. Wendt did not attribute any of plaintiff's limitations to his HIV infection.
C. Other Opinions
On November 29, 2017, state agency reviewer A. Periakaruppan, M.D., evaluated plaintiff's physical functioning based on the record available at that time. (R. 103.) Dr. Periakaruppan found that plaintiff's alleged blindness/low vision, HIV, muscular dystrophy, hypertension, and diabetes were all non-severe. With regard to plaintiff's HIV infection, Dr. Periakaruppan wrote, "Claimant currently asymptomatic, has normal exam and no reported functional limitations." (Id.) The same day, state agency reviewer O. Fassler, Ph.D., determined that plaintiff's depression and anxiety were non-severe. (R. 104.) Dr. Fassler found that plaintiff had "mild" limitations in understanding, remembering, and applying information; interacting with others; and concentrating, persisting, or maintaining pace, and no limitations in adapting or managing himself. (Id.)
On November 2, 2017, John Fkiaras, M.D., conducted a consultative medical examination of plaintiff at the request of the SSA. (R. 511-14.) Plaintiff reported his medical history - from his 1988 hospitalization for Guillain-Barre syndrome to his 2017 HIV diagnosis - and stated that as a result of the Guillain-Barre he "sometimes" experiences weakness in both knees and "sometimes" experiences tremors in both hands. (Id.) He also reported generalized fatigue. (Id.) He said he could lift 12 pounds, stand for 20 minutes, climb a flight of stairs, and walk five blocks, and that he had no limitations regarding sitting. (Id.) Asked about his activities of daily living (ADLs), he told Dr. Fkiaras that he cooked daily, cleaned once a week, did laundry twice a week, and shopped once a week. (R. 512.) His physical examination was unremarkable, except that he had "mild difficulty walking on his heels." (R. 512.) Plaintiff had full range of motion in all joints, including shoulders and wrists, full strength in both upper and lower extremities, and full grip strength bilaterally. (R. 513-14.)
Dr. Fkiaras opined that plaintiff "is restricted from activities which require driving and operating machinery," as well as from "activities which require exposure to unprotected heights." (R. 514.) He assessed no other limitations.
Also on November 2, 2017, Arlene Broska, Ph.D., conducted a consultative psychiatric evaluation of plaintiff at the request of the SSA. (R. 507-10.) Plaintiff drove himself to the appointment. (R. 507.) He told Dr. Broska that after his HIV diagnosis he felt "down," and that he experienced panic attacks, mostly at night, approximately once a week. (Id.) His mental status examination was unremarkable. (R. 508-09.) He told Dr. Broska that he cooked daily, cleaned and shopped weekly, and did laundry twice a week. (R. 509.) Dr. Broska found "no evidence of psychiatric limitation" in any relevant area of functioning, and concluded that "the results of the examination do not appear to be consistent with any psychiatric problems that would significantly interfere with the claimant's ability to function on a daily basis." (R. 509.)
III. THE HEARING
At the February 5, 2020 ALJ hearing, plaintiff testified that he last worked in 2017, for VIP Community Services, as a case manager. (R. 71-72.) He stopped working because he was losing significant weight and became weak and unbalanced. (R. 71-72.) He went to Dr. Marcus, his longtime primary care physician, who was not able to determine what was wrong. (R. 72.) He then saw Dr. Wendt at the VAMC, who tested him for HIV and diagnosed him with "full-blown AIDS." (R. 72, 76, 83.) After the diagnosis, plaintiff returned to Dr. Marcus for treatment. (R. 74-75.) Plaintiff explained that Dr. Wendt "didn't specialize in HIV," but Dr. Marcus did. (R. 74-75, 83.)
Plaintiff recalled that Dr. Marcus initially prescribed Genovya, which helped plaintiff significantly with fatigue, but he was still "off balance." (R. 76.) Dr. Marcus later prescribed Celexa, which "helped balance me out." (R. 77.) When asked why he was unable to work, plaintiff testified that he was "fatigued" and had muscle pains because of his experience, more than 30 years earlier, with Guillain-Barre syndrome. (Id.) Dr. Marcus prescribed him gabapentin, which helped manage those symptoms, "but not all the time." (R. 78.) Plaintiff stated that he had numbness in his right arm and wore braces at night due to carpal tunnel syndrome. (R. 78-79.)
Plaintiff told the ALJ that approximately six to seven months prior to the hearing he had moved his primary care treatment to the VAMC. (R. 79.) He explained that they "do really good by [him]" as a veteran, and that the referral process was easier within the VAMC. (R. 79-80.) For primary care at the VAMC, Dr. Wendt "referred [him] upstairs to Dr. Brau," who began giving him his regular testosterone shots and managing his medications. (R. 83-85.) In addition, plaintiff told the ALJ that he planned to get physical therapy at the VAMC for his shooting pains and muscle cramps, that he was supposed to get an MRI of his shoulder, and that he had just begun seeing a VAMC psychiatrist, who was treating him for panic attacks with therapy and Celexa (which was originally prescribed for vertigo, but also "helped [him] with the panic attacks). (R. 84-85, 92-93.) Plaintiff told the ALJ that his panic attacks still happened "at times, but not as intense." (R. 92.)
Plaintiff testified that lived with his third wife and his elderly aunt. (R. 86.) His wife had a job and also helped plaintiff "a lot" around the house, doing "basically everything," including cooking, cleaning, and food shopping. (R. 86-88.) Plaintiff said that he could drive, but not for long distances, due to shooting pains and nervousness. (R. 90.) He took a cab to the hearing. (Id.) He did not take busses or trains because he felt dizzy and unstable due to his vertigo. (R. 91-92.)
Asked about the frequency of his visits with Dr. Wendt, plaintiff testified that he did not see him "as often as I was seeing Dr. Peter Marcus." (R. 80.) Plaintiff told the ALJ that he had last seen Dr. Wendt "a couple of months ago," when Dr. Wendt prepared "the RFC." (R. 81.) Before that, his last visit was in May of 2019, and "the time before that" was in May of 2017. (R. 81-82.)
The VAMC records do not reflect any examination by Dr. Wendt on or near July 17, 2019, the date of his Medical Source Statement. As noted above, Dr. Wendt did see plaintiff on May 3, 2019. (R. 665-71.)
No vocational expert (VE) testified at the hearing. But two months later, on April 2, 2020, the ALJ sent written interrogatories to VE Raymond Cestar, who answered them on June 5, 2020. (R. 363-69.) VE Cestar wrote that plaintiff had work experience as a case manager, at the sedentary exertional level; a residential manager, at the light exertional level; and a client care worker, at the medium exertional level. (R. 365.) The next interrogatory asked the VE to consider a hypothetical individual with the same background as plaintiff who could perform light work, as that term is defined in the SSA's regulations,with the following limitations:
"Light work" means "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. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time." 20 C.F.R. § 404.1567(b).
can not [sic] work on ladders ropes or scaffolds, or slippery or uneven surfaces; can occasionally work on ramps and stairs, and can occasionally balance, stoop, crouch, crawl, and kneel; they can only occasionally reach or handle overhead bilaterally; they cannot work at unprotected heights or around dangerous machinery.(R. 366.) The VE opined that such an individual could perform plaintiff's past job as a case manager, which "requires only occasional reaching and handling overhead." (Id.)Asked if the hypothetical individual could perform any of plaintiff's past jobs if he were limited to sedentary work,the VE responded yes, writing that he could still perform the job of case manager. (R. 368.) However, if he were limited to "simple and routine work," he would not be able to perform any of plaintiff's past jobs, as all of them were "skilled/semi-skilled." (R. 369.)
The VE's opinion is consistent with plaintiff's Work History Report, in which he wrote that his case manager job required him to sit for 4 hours a day and walk for 4 hours a day, but did not require him to lift more than 10 pounds or to climb, stoop, kneel, crouch, crawl, handle, or reach. (R. 295.)
"Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 404.1567(a).
On June 12, 2020, the ALJ sent a letter to plaintiff's counsel, with a copy to plaintiff, advising that he had obtained additional evidence and providing instructions for accessing that evidence online. (R. 372-73.) The ALJ invited plaintiff's counsel to submit written comments, submit written questions for the VE, or request a supplemental hearing, and advised that if he did not receive a response "within 10 days of the date you receive this notice," he would "enter the new evidence in the record and issue [his] decision." (R. 373.)
Plaintiff did not respond to the June 12, 2020 letter.
IV. THE ALJ'S DECISION
In his Decision, issued on October 19, 2020, the ALJ found that plaintiff met the insured status requirements of the Act through December 31, 2022 (R. 13), then undertook the five-step analysis mandated by 20 C.F.R. § 404.1520(a)(4)(i)-(v). At step one, see 20 C.F.R. § 404.1520(a)(4)(i), the ALJ found that plaintiff had not engaged in substantial gainful activity (SGA) since April 14, 2017, the alleged onset date. (Id.)
At step two, see 20 C.F.R. § 404.1520(a)(4)(ii), the ALJ found that plaintiff had four severe physical impairments: diabetes mellitus with neuropathy, cervical spine degenerative disc disease, degenerative joint disease of the right shoulder, and "history of Guillain-Barre syndrome." (R. 13.) The ALJ determined that plaintiff had six additional medically determinable impairments - history of carpal tunnel in the right wrist, low vision, HIV, hypertension, hyperlipidemia, and substance abuse disorder in remission - but concluded that they were non-severe because "the evidence does not show that these conditions had more than a minimal impact on the claimant's ability to perform basic work activities." (Id.) With respect to plaintiff's HIV infection, the ALJ cited medical evidence showing that since plaintiff was placed on HIV medication he "has routinely been described as asymptomatic and stable, with a largely undetectable HIV RNA and increased CD4 cell count." (Id.) Based on these findings, the ALJ concluded that "without more," neither the HIV diagnosis nor the other impairments discussed in this section of the Decision significantly limited plaintiff's ability to perform basic work activities. (R. 14.) He added that all impairments were considered in determining plaintiff's residual functional capacity (RFC). (Id.)
The ALJ then turned to plaintiff's claimed mental impairments - depressive disorder and anxiety disorder - and found that they too were non-severe. (R. 14.) The ALJ noted, among other things, that plaintiff had no difficulties with his ADLs; that his mental status examinations were normal "throughout the relevant period"; that his anxiety was "controlled on medication"; and that three medical professionals - consultative examiner Dr. Broska, State Agency reviewer Dr. Fassler, and treating physician Dr. Marcus - all concluded that he had mild limitations, or none at all, in each of the four "broad functional areas of mental functioning" described in 20 C.F.R. § 404.1520a(c)(3). (R. 14-15.) Analyzing those areas himself, the ALJ found, for purposes of Step 2, that plaintiff had had no limitations in his ability to "[u]nderstand, remember, or apply information," no limitations in his ability to "interact with others," no limitations in his ability to "concentrate, persist, or maintain pace," and no limitations in his ability to "adapt or manage [him]self." (R. 34.)
The degree of limitation in each area is rated on a five-point scale: "None, mild, moderate, marked, and extreme." 20 C.F.R. § 404.1520a(c)(4). If the agency rates the degree of a claimant's limitation as "none" or "mild" in all four functional areas, it "will generally conclude that [his] impairment(s) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in [his] ability to do basic work activities." Id. § 404.1520a(d)(1).
At step three, see 20 C.F.R. § 404.1520(a)(4)(iii), the ALJ determined that plaintiff did not have any impairment or combination of impairments that met or medically equaled the severity of any impairment listed in 20 C.F.R. part 404, subpart P, appendix 1. (R. 16.) Because he had already determined plaintiff's HIV infection to be non-severe, the ALJ did not specifically analyze Listing 14.11 (HIV infection).
Before proceeding to step four, the ALJ found that plaintiff had the residual functional capacity (RFC) to perform light work, as defined in 20 CFR § 404.1567(b), except that he:
. . . cannot work on ladders[,] ropes[,] or scaffolds. The individual cannot work on slippery or uneven surfaces. The individual can occasionally work on ramps and stairs. The individual can occasionally balance, stoop, crouch, crawl, and kneel. The individual can only occasionally reach or handle overhead bilaterally. The individual cannot work at unprotected heights or around dangerous machinery.(R. 17.)
In developing plaintiff's RFC, the ALJ wrote that he "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence" in the record, including medical opinions and prior administrative medical findings. (R. 17.) He found that plaintiff's impairments could be expected to cause the symptoms he alleged, but that plaintiff's statements regarding the intensity, persistence, and limiting effects of those symptoms were "not entirely consistent with the medical evidence and other evidence in the record[.]" (Id.) For example, while plaintiff reported weakness of the knees, hand tremors, neck pain, and upper extremity tingling, the medical record "documents benign findings." (Id.) Among other things, plaintiff's various physical examinations - at the VAMC, at Claremont, and by consultative examiner Dr. Fkiaras - all revealed a normal gait, full range of motion in all joints, no tremor or ataxia, full (5/5) strength in the upper and lower extremities, full grip strength, and intact sensation to monofilament, and intact pulses. (R. 17-18.) The ALJ also noted (based upon plaintiff's reports to the consultative examiners) that in addition to bathing and dressing himself, plaintiff cooked daily, did laundry twice weekly, and shopped and cleaned weekly. (R. 17.)
The ALJ then evaluated the medical opinions and prior administrative findings in the record. Dr. Marcus's opinion (that plaintiff has no exertional limitations or problems with the use of his hands) was "partially persuasive," because it was consistent with his treatment findings and because, as plaintiff's "primary care physician who had regular contact" with his patient, Dr. Marcus "was in a good position to assess the [plaintiff's] limitations." (R. 19.) However, the ALJ wrote, Dr. Marcus's opinion did not adequately account for the "degenerative changes of the right shoulder and cervical spine" revealed by radiological evidence in late 2019, nor for plaintiff's complaints of upper extremity weakness from cervical spine pain. (R. 19.) These issues, "in combination with the claimant's diabetes mellitus and history of Guillain-Barre syndrome," made it "necessary to limit the claimant" to light work, with additional limits on overhead reaching and handling. (Id.)
The ALJ found Dr. Wendt's opinion (that plaintiff was unable to perform even sedentary work, due largely to "limited upper limb motor strength stemming from history of Guillain-Barre syndrome and lower extremity neuropathy") not persuasive, because "the record contains scant progress notes from him documenting significant clinical finding[s] that might serve as the basis for the profound limitations he opines." (R. 19-20.) The ALJ noted in particular that none of Dr. Wendt's treatment notes documented any "motor strength deficits, sensory deficits, [or] range of motion deficits, which seems at odds with the remarkably diminished functioning assessed by Dr. Wendt." (R. 20.)
As for consultative examiner Dr. Fkiaras, the ALJ found his opinion (that plaintiff was restricted from activities that required driving, operating machinery, and exposure to unprotected heights) only partially persuasive, because the record showed that plaintiff "is able to drive a vehicle." (R. 19.) The ALJ rejected the prior administrative finding of Dr. Periakaruppan (who assessed that plaintiff did not have any severe physical impairment) because it was "dated," and did not consider "the most recent evidence in the record or plaintiff's testimony." (Id.) The ALJ did not discuss the views of Dr. Broska or Dr. Fassler as to plaintiff's mental functioning.
At step four, see 20 C.F.R. § 404.1520(a)(4)(iv), the ALJ relied on VE Cestar's interrogatory answers to determine that plaintiff's past work as case manager (DOT Code No. 195.107-030) was sedentary in exertion "as actually and generally performed" and that, given plaintiff's RFC, he was capable of performing his past relevant work as a case manager. (R. 20.) Consequently, without reaching step 5, the ALJ determined that plaintiff was not disabled from April 14, 2017, through the date of the Decision. (R. 21.)
V. THE PARTIES' POSITIONS
Plaintiff contends that the Decision should be reversed or remanded because the ALJ erred by (1) "not allowing Mr. Jeffrey his due process right to object to the VE testimony," see Pl. Mem. (Dkt. 24) at 24-26; (2) failing to give "controlling weight" to Dr. Wendt's opinion, see id. at 1619; (3) failing to determine at Step 2 that plaintiff's HIV/AIDS was a severe impairment and at Step 3 that this impairment met Listing 14.11(G), see id. at 27-30; and (4) failing to consider the impact of plaintiff's "frequent illness, sick day needs, and break needs" on his ability to work. See id. at 20-22. Additionally, plaintiff argues that the Decision was not supported by substantial evidence in that the ALJ (5) failed to give "proper weight" to his "work related hospitalization in 2017," see id. at 19-20; (6) omitted or mischaracterized "multiple limitations" at Steps 3, 4, and 5, see id. at 22-25; and (7) failed to determine at Steps 4 and 5 that "comorbidities caused work-prohibiting impairment." See id at 31-32.
I have presented plaintiff's arguments in the order in which they are analyzed in this Report and Recommendation, rather than the order in which they are presented in the parties' briefs.
The Commissioner disagrees on all points, arguing, among other things, that plaintiff's "controlling weight" argument rests on an obsolete and inapplicable regulation, see Def. Mem. (Dkt. 32) at 12-13, and that plaintiff's Step 3 argument regarding Listing 14.11(G) is based on a misreading of the medical record. See id at 24. More broadly, the Commissioner argues that the ALJ properly found plaintiff's HIV infection to be non-severe and non-disabling because, since starting treatment in May 2017, plaintiff has been "stable and asymptomatic," with a low viral load and a normal CD4 count. Id. at 21-22. Consequently, the Commissioner contends, the ALJ's RFC formulation was supported by substantial evidence. Id. at 1.
In reply, plaintiff argues that plaintiff's HIV remained symptomatic and that he remained immune-compromised. Plaintiff insists that his anal fissure in May 2017 and finger infection in May 2018 were both "treatment resistant" (although both responded to treatment) and "classic symptoms of a compromised immune system" (although none of his doctors expressed that view). Pl. Reply Mem. (Dkt. 33-1) at 2-4. Additionally, plaintiff continues to argue that Dr. Wendt's opinion should have been credited over Dr. Marcus's, and that plaintiff's HIV/AIDs impairment met Listing 14.11(G) or, alternatively, Listing 14.11(I). Id. at 4-6.
VI. ANALYSIS
A. Standards
In considering the parties' motions, I have reviewed the entire administrative record (totaling 1378 pages) and applied the familiar and frequently reiterated standards used by federal district courts to review decisions of the Commissioner. Generally speaking, a court may set aside an ALJ's decision only if it is based upon legal error or if the ALJ's factual findings are not supported by substantial evidence. 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); Conyers v. Comm'r of Soc. Sec., 2019 WL 1122952, at *11-13 (S.D.N.Y. Mar. 12, 2019). "The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence." Ulloa v. Colvin, 2015 WL 110079, at *6 (S.D.N.Y. Jan. 7, 2015) (citing Tejada, 167 F.3d at 773).
"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 (1971)). "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 v. Astrue, 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009) (citing Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) and 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." Dubois v. Comm'r of Soc. Sec., 2022 WL 845751, at *4 (S.D.N.Y. Mar. 21, 2022). "[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 omitted). Thus, the substantial evidence standard is "a very deferential standard of review." Id.
A claimant's RFC is the "most he can still do despite his limitations." 20 C.F.R. § 404.1545(a)(1). A claimant's RFC is based on all of the relevant medical and other evidence in the record, including his credible testimony, objective medical evidence, and medical opinions from treating and consulting sources. 20 C.F.R. §§ 404.1520c, 404.1545(a)(3), 404.1546(c). Although necessarily informed by the medical evidence in the record, "[a]n RFC finding is administrative in nature, not medical, and its determination is within the province of the ALJ[.]" Curry v. Comm'r of Soc. Sec., 855 Fed.Appx. 46, 48 n.3 (2d Cir. 2021).
B. The ALJ Did Not Deprive Plaintiff of His Right to Cross-Examine the Vocational Expert
A social security claimant is entitled to cross-examine a vocational expert who presents evidence upon which the ALJ relies. See Townley v. Heckler, 748 F.2d 109, 114 (2d Cir. 1984) (remanding where the "primary evidence upon which benefits were denied" was a "post-hearing vocational report," where the claimant "was denied an opportunity to examine that vocational report," and where, "despite claimant's request, no additional hearing was held" for cross-examination or rebuttal evidence). But "the due process analysis is highly fact-dependent." Glessing v. Comm'r of Soc. Sec., 2021 WL 1390640, at *12 (E.D.N.Y. Apr. 13, 2021), aff'd, 2022 WL 457243 (2d Cir. Feb. 15, 2022). As explained in Glessing, the SSA "does not violate a plaintiff's due process rights" simply because "an ALJ relies upon a report and the plaintiff fails to cross-examine the author." Id. (upholding denial of benefits where ALJ obtained post-hearing interrogatory answers from a medical expert and a vocational expert and offered plaintiff the opportunity to cross-examine both at a supplemental hearing); accord Benjamin M. v. Comm'r of Soc. Sec., 2019 WL 6896722, at *8 (N.D.N.Y. Nov. 21, 2019), report and recommendation adopted, 2019 WL 6895247 (N.D.N.Y. Dec. 18, 2019).
Here, the ALJ sought the VE's testimony through interrogatories after the hearing. (R. 36369.) The ALJ then relied on the VE's answers at Step 4 of his analysis. (R. 20-21.) But the ALJ did not "deprive" plaintiff of any rights. To the contrary: ALJ Carlton sent written notices to plaintiff's counsel (at MFJ's office) and to plaintiff himself (at his home) on June 12, 2020, informing them that he had obtained additional evidence in the form of the VE's interrogatory responses, asking them to review that evidence, and offering multiple opportunities to challenge the new evidence:
(i) by submitting "written comments concerning the evidence, a written statement as to the facts and law you believe apply to the case in light of that evidence, and any additional evidence you wish me to consider" (R. 372-73); or (ii) by requesting a supplemental hearing to cross-examine the VE, which request the ALJ advised that he would "grant . . . unless I decide to issue a fully favorable decision." (R. 372.) Plaintiff did not respond within the ten-day timeframe set out in the notice letter (R. 373), nor at any time before October 19, 2020, when the ALJ issued his Decision.
In this Court, plaintiff argues, through his counsel, that he failed to respond because the notice did not arrive at counsel's office until "on or about October 8, 2020," due to postal delays caused by the COVID-19 pandemic. Pl. Mem. at 9. According to plaintiff's brief, counsel "was in the process of drafting an objection to the hypotheticals and VE responses" when the ALJ issued the Decision. Id. at 9; see also Pl. Reply Mem. at 8. But counsel proffers no evidence on either point, and "[t]he Court cannot rely on a factual statement made only in plaintiff['s] brief" to conclude, as plaintiff asks, that the ALJ violated his constitutional rights. Richard K. v. United BeHavioral Health, 2019 WL 3083019, at *15 (S.D.N.Y. June 28, 2019), report and recommendation adopted sub nom. Richard K. v. United Behav. Health, 2019 WL 3080849 (S.D.N.Y. July 15, 2019); see also Griffin v. Sheeran, 767 Fed.Appx. 129, 133 (2d Cir. 2019) (summary order) (quoting Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009) (per curiam)) ("[a]n attorney's unsworn statements in a brief are not evidence").Moreover, plaintiff does not explain (i) what, if anything, he did in response to the letter addressed to his home, or (ii) why his counsel did not submit any objection immediately upon receiving the June 12 letter, rather than spend another 11 days (longer than the 10-day period originally granted) preparing an already-overdue response to a four-month-old letter. On this record, I cannot conclude that the ALJ erred, nor that plaintiff's due process rights were violated.
I note as well that the factual assertions made to this Court are somewhat different from those made to the Appeals Council. There, plaintiff argued that counsel's receipt of the June 12 letter was delayed for a variety of reasons, including pandemic-related postal delays, the closure of MFJ's office, and "pandemic related technology issues" that interfered with counsel's access to the SSA's online records website, including remote access security updates, new laptop policies, and "hardware rollouts." (R. 232.)
Even if the ALJ erred in not foreseeing the difficulties that plaintiff's counsel would face in receiving and responding to the June 12, 2020 letter, any such error was harmless, and therefore not a basis for remand, because the questions that that counsel "would have asked," Pl. Mem. at 27, would not have altered either the ALJ's ultimate conclusion or this Court's review. See DeSoye v. Saul, 2021 WL 1172675, at *8 (S.D.N.Y. Mar. 29, 2021) ("In the context of social security appeals, a legal error committed by the ALJ may be considered harmless where the error is irrelevant to the ultimate conclusion when considering the record as a whole.").For this reason as well, the ALJ's reliance on the VE's interrogatory answers does not require remand.
For example, plaintiff's counsel would have asked questions about "capacity listings based on primary care RFC evaluations [sic] by Dr. Wendt." Pl. Mem. at 27. However, as discussed in Parts VI(C) and (F) of this Report, infra, the ALJ was not required to accept Dr. Wendt's views concerning plaintiff's capacity, and did not err in formulating the RFC that was presented to the VE. Consequently, while the VE would presumably have agreed that a hypothetical claimant with the "profound limitations" assessed by Dr. Wendt could not have performed plaintiff's past job as a caseworker, that testimony would have been irrelevant to the outcome of plaintiff's claim. See Smiley v. Comm'r of Soc. Sec., 2018 WL 357295, at *6 (N.D.N.Y. Jan. 10, 2018) (pro se plaintiff was not prejudiced by her inability to cross-examine VE regarding her "inability to maintain attention and concentration" because "the ALJ properly assessed Plaintiff's mental RFC, specifically her ability to maintain attention and concentration").
C. The ALJ Properly Evaluated the Medical Opinion Evidence
According to plaintiff, it was error for the ALJ to fail to give "controlling weight" to the opinion of Dr. Wendt, his "current primary care physician." Pl. Mem. at 16. But the rule upon which plaintiff relies, known as the treating physician rule, was repealed in January 2017, and now applies only to "claims filed before March 27, 2017." 20 C.F.R. § 404.1527. Plaintiff's claim was filed on September 29, 2017. (R. 247-52.)
Under the former treating physician rule, an ALJ was required to "defer to the opinion of a treating physician when adjudicating an application for SSI disability benefits." Peets v. Kijakazi, 2022 WL 17725391, at *1 (2d Cir. Dec. 16, 2022) (summary order). Under the current regulations, however, "[t]hat an ALJ does not give controlling weight to a particular medical opinion is not a basis for second-guessing the ALJ's conclusions." Id. On the contrary: the ALJ may not "defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s)." 20 C.F.R. § 404.1520c(a). Instead, the ALJ must evaluate the "persuasiveness" of each opinion or finding in the record in light of a uniform set of factors: (i) its "[s]upportability"; (ii) its "[c]onsistency"; (iii) the "[r]elationship" between the medical source and the claimant; (iv) the source's "[s]pecialization" in a relevant medical field; and (v) "other factors that tend to support or contradict" the opinion or finding. 20 C.F.R. § 404.1520c(c)(1)-(5).
The most important factors are "supportability" and "consistency." 20 C.F.R. § 404.1520c(b)(2); Rivera v. Comm'r of the Soc. Sec. Admin., 2020 WL 8167136, at *13 (S.D.N.Y. Dec. 30, 2020), report and recommendation adopted sub nom. Rivera v. Comm'r of Soc. Sec. Admin., 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021). Supportability "has to do with the fit between the medical opinion offered by the source and the underlying evidence and explanations 'presented' by that source to support her opinion." Rivera, 2020 WL 8167136, at *16. Thus, in evaluating supportability, an ALJ is expressly authorized to compare the opinion with the "objective medical evidence and supporting explanations" presented by the opining source. 20 C.F.R. § 404.1520c(c)(1). Consistency is a broader inquiry, "focused on how well a medical source is supported, or not supported, by the entire record," which may or may not contain another medical opinion as a comparator. Vellone on behalf of Vellone v. Saul, 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021), report and recommendation adopted, 2021 WL 2801138 (S.D.N.Y. July 6, 2021).
Here, the ALJ properly weighed all relevant medical opinions and findings, including the opinions of Dr. Wendt and Dr. Marcus, and thoroughly described the reasons he found Dr. Wendt's opinion unpersuasive, particularly the "scant progress notes" from the examinations he conducted. (R. 19-20.) As the ALJ correctly noted, Dr. Wendt assessed plaintiff with significant motor strength deficits, significant sensory deficits, and significant range-of-motion deficits, but none of his own treatment notes (nor those of his colleagues at the VAMC) document any of those deficits. (R. 20.) Similarly, although Dr. Wendt opined that plaintiff suffered from "chronic fatigue" related to his long-standing Guillain-Barre and diabetes diagnoses (R. 1187), there is no evidence anywhere in the extensive VAMC records submitted to the SSA that plaintiff complained about fatigue at any time prior to the date of Dr. Wendt's opinion - except in the early months of 2017, leading up to his HIV/AIDS diagnosis. The same is true with regard to Dr. Wendt's assertion that plaintiff's panic disorder, together with his balance disorder, prevented him from using public transportation, and that his panic disorder "will not get better even with Rx." (R. 1187.) On April 10, 2017, plaintiff told the medical staff at the VAMC that he hadn't had a panic attack since he was started on Celexa, nine years earlier. (R. 460, 494.) On May 14, 2019 - less than three months before Dr. Wendt prepared his Medical Source Statement - plaintiff told Dr. Brau that his panic attacks were "well controlled" on that medication, and "denie[d] balance problems." (R. 543, 552, 659.) Moreover, according to plaintiff's brief, Dr. Wendt "thoroughly reviewed" these and other VAMC treatment records before preparing his Medical Source Statement. Pl. Mem. at 17. Thus, the ALJ did not err in finding Dr. Wendt's opinion unsupported by his own treating notes, inconsistent with other evidence in the record, including other VAMC medical records, and therefore unpersuasive.
Nor did the ALJ err in accepting portions of Dr. Marcus's opinion. (R. 19.) Plaintiff's contention that he transferred his care to VAMC in 2019 because he was "deeply concerned with the quality of care he was receiving" from Dr. Marcus, Pl. Mem. at 18, is unsupported by the record,and in any event irrelevant to the ALJ's evaluation under 20 C.F.R. § 404.1520c. Although it is true that Dr. Marcus's RFC Assessment does not discuss plaintiff's HIV infection, see Pl. Mem. at 18, the same is true for Dr. Wendt's opinion, which attributes most of plaintiff's assessed limitations to his past experience with Guillian-Barre syndrome and his longstanding diabetes diagnosis. (R. 1184-87.)
In his brief, plaintiff asserts that he "spoke extensively at his hearing about how betrayed and neglected he felt" because Dr. Marcus "failed to test him for HIV with any of his diabetes bloodwork for nearly 10 years[.]" Pl. Mem. at 8. No such sentiments appear on the hearing transcript.
In any event, as noted above, the ALJ did not accept Dr. Marcus's opinion entirely. Rather, he found it only "partially persuasive" (R. 19), and formulated an RFC that included more restrictions than Dr. Marcus (or Dr. Fkiaras) endorsed. (See R. 19.) In particular, the ALJ limited plaintiff to light work, with only occasional overhead reaching, to account for degenerative changes of the right shoulder and cervical spine that occurred in late 2019 (after Dr. Marcus submitted his opinion), as well as plaintiff's history of diabetes and Guillain-Barre syndrome. (Id.). After a careful review of the entire record, I cannot discern any error in the ALJ's evaluation of the competing opinions of plaintiff's two treating physicians.
D. The ALJ Did Not Err in Finding Plaintiff's HIV Infection Non-Severe
At step two of the required five-step analysis, the ALJ must determine whether any of the claimant's medically-determinable impairments, singly or in combination, are "severe." 20 C.F.R. § 404.1520(a)(4)(ii). A "severe" impairment "significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c), 404.1522(b). "Basic work activities" include physical functions such as "walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling." 20 C.F.R. § 404.1522(b)(1)-(6). While the step two standard is de minimis, "intended only to screen out the very weakest cases," McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014), it is not met by evidence of "the mere presence of a disease or impairment." Bonilla Mojica v. Berryhill, 397 F.Supp.3d 513, 529 (S.D.N.Y. 2019) (quoting Taylor v. Astrue, 32 F.Supp.3d 253, 265 (N.D.N.Y. 2012)); accord Santiago Sanchez v. Comm'r of Soc. Sec., 2022 WL 3152585, at *8 (S.D.N.Y. Aug. 8, 2022). Rather, the claimant must furnish "medical evidence showing how these alleged impairments limited his ability to work." Britt v. Astrue, 486 Fed.Appx. 161, 163 (2d Cir. 2012) (summary order) (upholding ALJ's step two finding that plaintiff's obesity and arthritis were not severe).
Here, the ALJ did not err in finding plaintiff's HIV infection non-severe at Step 2. As the ALJ pointed out, once plaintiff was placed on anti-HIV medication in May 2017 - less than a month after his claimed onset date - he was "asymptomatic and stable with a largely undetectable HIV RNA and increased CD4 cell count." (R. 13.) The ALJ accurately read the medical record. On the date of plaintiff's HIV diagnosis, his viral load was 623,000 and his CD4 count was 75. (R. 657.) By June 22, 2017, after beginning a regimen of Bactrim and Genvoya, his viral load fell to 390. (R. 1029.) By the end of 2017 his viral load was 80 and his CD4 count was 386. (R. 1065.) There is no support in the medical record for plaintiff's claim that he was switched to Biktarvy in mid-2018 "because he became resistant to his treatment." Pl. Reply Mem. at 4. Rather, as noted above, the switch was made to avoid drug-drug interactions. (R. 1117, 1299.)
Nor is there any support for plaintiff's contention, see Pl. Mem. at 18, that he developed resistance to his current HIV medication in late 2020 (which, in any event, would be irrelevant to the ALJ's conclusion that plaintiff was not under a disability through the date of the Decision). To the contrary: Dr. Measley told plaintiff on November 18, 2020 that "blips" in his viral load were "not associated w/ trmt failure as long as [the numbers] stay under 500." (R. 31.) Plaintiff's viral load in August 2020 was 140, falling to 130 in October 2020, which is the most recent figure in the record before this Court. (Id.)
Plaintiff remained stable throughout 2019. On April 25, 2019, his viral load was 40 and his CD4 count was well into to normal range at 813. (R. 1165.) On May 3, 2019, his viral load was less than 20 and his CD4 count was 773. (R. 657.) On May 14, 2019, Dr. Brau described that viral load as "undetectable" and assessed that plaintiff's HIV/AIDS was asymptomatic. (R. 551.) Moreover, as noted above, even Dr. Wendt - who opined that plaintiffs work capacity was dramatically curtailed by his various medical impairments - did not attribute a single one of his limitations to his HIV infection. (R. 1182-86.) The record thus furnishes substantial evidence in support of the ALJ's finding that plaintiff's HIV was non-severe. See Collins v. Berryhill, 2018 WL 6171709, at *4 (W.D.N.Y. Nov. 26, 2018) (ALJ appropriately found that plaintiff's HIV infection was non-severe where it "was well-controlled and [plaintiff] is generally asymptomatic, with good CD4 levels and an undetectable viral load the majority of the time"); Ziemoore v. Berryhill, 2017 WL 5157467, at *8 (S.D.N.Y. Nov. 7, 2017) (ALJ's conclusion that plaintiff's HIV infection was non-severe was supported by substantial evidence where plaintiff's "HIV was controlled," her "CD4 cell levels were generally normal," and the medical record "fails to indicate any functional limitations due to the diagnosis"), report and recommendation adopted sub nom. Ziemoore v. Comm'r of Soc. Sec., 2017 WL 6000608 (S.D.N.Y. Dec. 1, 2017).
Plaintiff's contention that he remained "symptomatic" throughout the relevant period, because his "treatment resistant" anal fissure in 2017 and his "treatment resistant" finger infection in 2018 were "classic symptoms of a compromised immune system," Pl. Reply Mem. at 3, is sharply inconsistent with the record before this Court. Both of those conditions were quickly resolved, on an outpatient basis, with minimal treatment, and neither recurred. (R. 404, 406, 671 -73.) Moreover, there is no suggestion, anywhere in the medical record, that any of plaintiff's doctors believed that he remained immune-compromised once his viral load was effectively suppressed and his CD4 count improved. To the contrary: as noted above, none of the medical opinions in the record, not even Dr. Wendt's, states or suggests that plaintiff's HIV infection limited his ability to work. See Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (ALJs are "entitled to rely not only on what the record says, but also on what it does not say."); Soto v. Colvin, 2015 WL 1726541 at *19 (S.D.N.Y. Apr. 14, 2015) (ALJ "was entitled to rely on that absence of evidence").
Because the ALJ permissibly found plaintiff's HIV infection to be non-severe, he was not required to consider whether the condition met or equaled Listing 14.11 (HIV infection). Moreover, the record clearly shows that plaintiff did not meet or equal the Listing under subsection G, which requires a positive HIV test, "an absolute CD4 count of less than 200 cells/mm3," and either a BMI measurement of less than 18.5 or a "[h]emoglobin measurement of less than 8.0 grams per deciliter (g/dL)." 20 C.F.R. 404, subpt. P., app. 1 § 14.11(G). Plaintiff correctly notes that his CD4 count was measured at 75 on May 2, 2017. Pl. Mem. at 30. However, his BMI never approached Listing-level, and his hemoglobin HGB level (which measures anemia) never dropped below 12.0 g/dL during the relevant period. (R. 539, 615-16, 618-19.)
In his brief, plaintiff asserts that he had a "Hemoglobin (HGB) measurement of 7.9 g/dL (lower than the required 8.0) on May 2, 2017." Pl. Mem. at 30 (citing R. 625, 1219.) In fact, plaintiff had a hemoglobin A1C reading of 7.9% on that date. (R. 625, 1219.) Hemoglobin A1C (not HGB) measures blood sugar in diabetic patients, and should be lower than 8.0. The normal range, for non-diabetics, is 4.2-5.8. (R. 625.) "For most adults living with diabetes, an A1C level of less than 7% is a common treatment target." Mayo Clinic, "A1C Test," https://www.mayoclinic.org/tests-procedures/a1c-test/about/pac-20384643 (last visited February 8, 2023).
Nor did plaintiff meet or equal Listing 14.11 under subsection I, which requires a positive HIV test and "repeated . . . manifestations of an HIV infection . . . resulting in significant, documented symptoms or signs (for example, but not limited to, fever, headaches, insomnia, involuntary weight loss, malaise, nausea, night sweats, pain, severe fatigue, or vomiting)," and "one of the following at the marked level":
1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.20 C.F.R. 404, subpt. P., app. 1 § 14.11(I). Plaintiff did experience involuntary weight loss and fatigue prior to his alleged onset date. However, those symptoms resolved once he was placed on HIV medication and, as discussed above, there is no medical evidence thereafter of "repeated manifestations" of HIV. Nor, for that matter, is there any evidence that plaintiff was "markedly" limited in his activities of daily living, social functioning, or completing tasks in a timely manner.
Once again, plaintiff's brief contains a series of factual assertions at odds with the record. For example, plaintiff argues to this Court that he "cannot safely drive," cannot "shop for groceries," and cannot "go to appointments unaided." Pl. Mem. at 23. But he drove himself to his consultative psychiatric examination (R. 507), took a cab (apparently unaccompanied) to the ALJ hearing, and testified at that hearing that although he did not drive "as much as before," he drove "to the store, the grocery store," as well as the "gas station." (R. 90-91.) In addition, he told both consultative examiners that he regularly shopped, cooked, cleaned the house, and did laundry. (R. 509, 512.) I note as well that, with the exception of one emergency room visit in April 2017 (R. 450), there is no evidence in the record that plaintiff was accompanied by his wife (or anyone else) to any of his medical appointments.
E. The ALJ Did Not Err by Failing to Accommodate Plaintiff's "Frequent Illness, Sick Day Needs, and Break Needs."
Plaintiff asserts that he "should have been limited to non-public facing work" because if he were to return to his prior work as a social services case manager he would need to "take weeks of sick leave every month to accommodate his near constant work-induced illnesses and multiple essential medical appointments." Pl. Mem. at 21; see also Pl. Reply Mem. at 7 ("Mr. Jeffery's busy schedule full of medical visits . . . reflect[s] the calendar of an extremely sick man who no reasonable ALJ could expect to work a job without [an] enhanced sick day allowance."). This argument is meritless. First, there is no medical evidence suggesting that the HIV-related symptoms that plaintiff experienced before being diagnosed and treated for that condition were "work induced." Nor is there any evidence that he was required to "isolate from other workers and clients," Pl. Mem. at 21, or that a return to work would lead to increased illness, particularly once his viral load was suppressed and his CD4 count was satisfactory. Given the absence of any expert medical opinion that plaintiff should avoid public-facing work, it cannot have been error for the ALJ to fail to incorporate such limitations into his RFC formulation.
Nor did the ALJ err in failing to account for what plaintiff now characterizes as a busy schedule of routine or maintenance medical appointments. There is no reason to believe that those appointments would make plaintiff miss any work, much less that he would require "an enhanced sick day allowance." Pl. Reply Mem. at 7.Moreover, where there is "no medical opinion finding [that the claimant] would need to miss work to attend his medical appointments," Jason R. v. Comm'r of Soc. Sec., 2021 WL 1131265, at *7 (W.D.N.Y. Mar. 24, 2021), courts routinely reject the argument that the ALJ erred by failing to account for "excessive absences." Id. (collecting cases); see also Glowacki v. Comm'r of Soc. Sec., 2021 WL 2980526, at *5 (W.D.N.Y. July 15, 2021) (rejecting plaintiff's "assertion that he could not have attended work on a sustained basis from his onset date forward because of the amount and timing of the medical treatment he received" where "there is no medical opinion from a treating doctor about Plaintiff's need to miss work or that the appointments need[ed] to take place during work hours.") (internal quotation marks and citation omitted). Here too there is no medical opinion suggesting that plaintiff would need to miss excessive amounts of work in order to attend medical appointments. Consequently, the ALJ did not err in refusing to incorporate this requirement when formulating plaintiff's RFC.
Plaintiff asserts that he is "required to go in for testosterone shots every two weeks for his erectile disfunction, bloodwork every other month for his testosterone levels, bloodwork every three months for his HIV and diabetes, [and] seasonal vaccines." Pl. Mem. at 6. Except for the HIV bloodwork (every three months, apparently combined with his diabetes bloodwork), this is the same schedule of medical appointments that plaintiff kept for years prior to his alleged onset date, while working at SGA levels. In addition, plaintiff notes that he self-administers "glucose [sic] shots 5 times a day for his diabetes, and blood stick tests on average three to eight times a day." Id. This too is nothing new. Plaintiff has been required to self-administer insulin injections and self-test his blood glucose levels throughout the day since at least 2010. (R. 927.)
F. The ALJ's Decision Is Supported by Substantial Evidence
Plaintiff's remaining arguments all go to the "weight" that the ALJ gave to various items of evidence, including his "constant illness" during the first four months of 2017, which caused him to visit the emergency room twice, see Pl. Mem. at 19-20; his vertigo, which according to his hearing testimony caused him to avoid public transportation, see id. at 22; and the "comorbidity between two of the claimant's most serious immune system impairments, HIV/AIDS and Guillian-Barre syndrome." Id. at 31. In each instance plaintiff asserts that the ALJ erred by failing to draw from that evidence the conclusion that plaintiff was disabled. In fact, the ALJ's view of the record was entirely appropriate and well within his authority as the finder of fact.
Plaintiff's illness in early 2017 predated the alleged onset date of his disability (as well as his HIV diagnosis and treatment) and therefore - by definition - did not merit the same "weight" as evidence of his condition from April 14, 2017 through the date of the hearing. Plaintiff's hearing testimony regarding his vertigo conflicted with other evidence in the record, including Dr. Brau's notes from May 14, 2019, when plaintiff "denie[d] balance problems." (R. 659.) An ALJ is not obliged to "accept [a claimant's] subjective complaints without question," Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010), particularly in the face of "[g]enuine conflicts in the evidence," which are "for the Commissioner to resolve." Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). Moreover, the ALJ ultimately accepted that plaintiff had "balance deficits" (R. 19), and consequently formulated an RFC that restricted him from working on "ladders[,] ropes[,] or scaffolds," working on "slippery or uneven surfaces," and working "at unprotected heights or around dangerous machinery." (R. 17.) Finally, the ALJ cannot be faulted for failing to "note the comorbidity" between Guillain-Barre syndrome and AIDS/HIV, as no such comorbidity is discussed by any of the doctors who opined on plaintiff's capacity - or, for that matter anywhere else in the record before the ALJ.
In his brief, plaintiff claims that when the immune system of a patient with Guillain-Barre syndrome is "boosted" by anti-retroviral medications "it attacks the nerves more often leading to severe nerve damage," Pl. Mem. at 31, thus putting the patient "in a medical catch 22 of immune system comorbidities." Id. Not only do these statements lack support in the record, they appear entirely unsourced in plaintiff's brief, which does not cite to any legal or medical authority for plaintiff's co-morbidity theory.
More generally, these challenges all fail because, under the "very deferential" substantial evidence standard, Brault, 683 F.3d at 448, the court must uphold an ALJ's RFC determination and ultimate disability decision if it is supported by substantial evidence, even if there is also substantial evidence to support the plaintiff's disability claim. "[W]hether there is substantial evidence supporting the [claimant's] view is not the question here; rather, we must decide whether substantial evidence supports the ALJ's decision." Bonet ex rel. T.B. v. Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013) (summary order) (emphasis in the original); see also Blalock v. Berryhill, 2018 WL 6332896, at *14 (S.D.N.Y. Nov. 8, 2018) ("[T]he existence of contrary evidence does not negate substantial evidence supporting the ALJ's decision.").
In this case, after a careful review of the extensive medical and non-medical record, I conclude that the substantial evidence test is met. The ALJ's RFC formulation is supported by plaintiff's medical and employment history, the treating notes from Claremont and the VAMC, the expert medical opinions of Drs. Marcus and Fkiaras, and the non-medical evidence concerning plaintiff's activities of daily living. "A reasonable mind could accept this evidence as adequate to support the ALJ's conclusion that [Jeffery] was not disabled under the meaning of the Social Security Act. Under the substantial evidence standard, our inquiry stops there." Peets, 2022 WL 17725391, at *2.
VII. CONCLUSION
For the reasons set forth above, I recommend, respectfully, that plaintiff's motion (Dkt. 22) be DENIED, that the Commissioner's motion (Dkt. 31) be GRANTED, and that this action be DISMISSED.
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. Jennifer L. Rochon at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Rochon. 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).