Cardoza v. Commissioner of Social Security
Filing
24
OPINION AND ORDER re: 13 MOTION for Judgment on the Pleadings filed by Michael A. Cardoza, 21 CROSS MOTION for Judgment on the Pleadings filed by Commissioner of Social Security. For the foregoing reasons, Cardoza 39;s motion for judgment on the pleadings (Docket# 13) is granted and the Commissioner's motion for judgment on the pleadings (Docket# 21) is denied. This case is remanded to the Commissioner for further proceedings consistent with this opinion. The Clerk is requested to enter judgment. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 2/12/2019) (anc) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
MICHAEL A. CARDOZA,
:
Plaintiff,
:
-against:
COMMISSIONER OF SOCIAL SECURITY,
:
Defendant.
:
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OPINION AND ORDER
17 Civ. 7803 (GWG)
GABRIEL W. GORENSTEIN, United States Magistrate Judge
Plaintiff Michael A. Cardoza (“Cardoza”) brings this action pursuant to 42 U.S.C.
§ 405(g) for judicial review of the final decision of the Commissioner of Social Security (the
“Commissioner”) denying his claim for Supplemental Security Income and Disability Insurance
Benefits under the Social Security Act (the “Act”). Both parties have moved for judgment on
the pleadings pursuant to Federal Rule of Civil Procedure 12(c).1 For the reasons stated below,
Cardoza’s motion for a remand is granted and the Commissioner’s motion is denied.
I. BACKGROUND
A. Procedural History
Cardoza applied for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) on October 8, 2013. See Certified Administrative Record, filed Mar. 8, 2018
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See [Plaintiff’s] Notice of Motion, filed May 4, 2018 (Docket # 13); Memorandum of
Law in Support of the Plaintiff’s Motion for Judgment on the Pleadings, filed May 4, 2018
(Docket # 14) (“Pl. Mem.”); Notice of Cross-Motion, filed Aug. 3, 2018 (Docket # 21);
Memorandum of Law in Support of the Commissioner’s Cross-Motion for Judgment on the
Pleadings and in Opposition to Plaintiff’s Motion for Judgment on the Pleadings, filed Aug. 3,
2018 (Docket # 22) (“Def. Mem.”); [Plaintiff’s] Reply Brief, filed Aug. 23, 2018 (Docket # 23)
(“Pl. Reply”).
(Docket # 11) (“R.”), at 26, 78, 85, 155. He alleged that his disability began on August 1, 2013,
when he was 40 years old. R. 26, 264.
The Social Security Administration (“SSA”) denied the applications and Cardoza sought
review by an Administrative Law Judge (“ALJ”). R. 115-16. The ALJ held an initial hearing on
December 15, 2015, R. 78-84, and an additional hearing on May 10, 2016, R. 48-74. In a written
decision dated October 4, 2016, the ALJ found Cardoza not disabled within the meaning of the
Act. R. 26-40. On August 28, 2017, the Appeals Council denied Cardoza’s request for review
of the ALJ’s decision, making the ALJ’s decision the final decision of the Commissioner. R. 15. This action followed.
B. The Hearings Before the ALJ
Cardoza was represented by attorney Lawrence Mabes at his hearings. R. 48, 79.
Because the ALJ had not received certain records from Dr. Alan Ng, Lincoln Medical Center,
and Clay Avenue Health Center prior to the initial hearing, the initial hearing was limited to a
cursory inquiry into the different facilities where Cardoza received treatment through 2014.
R. 79-82. At the second hearing, Cardoza testified to experiencing physical pain and mental
health issues. R. 61-67. He testified to being unable to stand for more than an hour and noted
that his pinched nerve forces him to sit most of the time, and that he is unable to walk more than
a block and a half before he needs to stop and rest. R. 63. In order to walk at all, he uses a cane.
R. 63. Because of the pinched nerve, Cardoza also cannot sit for more than “45 minutes to an
hour” before he has to stand again. R. 63. Likewise, he cannot lie down for more than an hour
because he experiences discomfort in his left leg and back. R. 64. He cannot bend over without
experiencing pain in his back and left leg, and thus he does not usually tie his shoes without
help. R. 64. He did testify that he is able to tie his shoes “[i]f I have to do it,” but that he can
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only do so “little by little” and “would be in pain if I have to bend down.” R. 64. Cardoza
requires assistance from his daughters and wife to help with cooking, cleaning, shopping, and
other home chores. R. 65. Cardoza relies on a medical taxi, paid for by Medicaid, to get to and
from his medical appointments. R. 65.
Cardoza sees a psychiatrist due to various symptoms, consisting of not wanting to talk to
his wife, crying spells, and anxiety with related chest tightness. R. 66. He attributes the anxiety
to feeling “that everything is coming down on me,” and explained, for example, that if he
receives a bill in the mail, he becomes anxious and “can’t function” because he fixates on the bill
for up to three weeks at a time. R. 66. Cardoza takes medication as prescribed, and he testified
that it “[l]ately” has helped “a little” but also that it “doesn’t really help very much.” R. 66. The
side effects of his medication include nervousness, fatigue, and tiredness. R. 66-67. At some
point prior to his onset date, he was employed cleaning kitchens in restaurants and performing
housekeeping at a hotel. R. 61; see R. 302.
Dr. Chaim Eliav, a medical doctor certified by the American Board of Physical Medicine
and Rehabilitation, R. 608, testified that the record supported a diagnosis of a degenerative tear
of the medial meniscus in Cardoza’s knee. R. 50-51. He also reported that there was suggestion
of injury to the anterior cruciate ligament in the knee as well as a bulging disc and a herniated
disc in his back. R. 50-51. He identified the existence of other conditions in the spine,
tenderness in both heels, and the fact that Cardoza was obese. R. 51-52. Dr. Eliav found that
although there was diminished reflex capacity in the left knee, which would lead to difficulty
lifting items over 10 pounds, Cardoza was able to “ambulate even without an assistance device.”
R. 53-54. Dr. Eliav noted that Cardoza “would not be able to stand for more than two hours in a
day,” R. 54-55, and that he would need to “take a break from standing every half hour for five
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minutes,” R. 55. Further, he could sit for only six hours total during the day, and would need to
take an hourly break. R. 55.
Dr. Jennifer Blitz, a clinical psychologist, R. 609, testified that the record showed a
diagnosis for Cardoza of “generalized anxiety disorder,” an “unspecified depressive disorder,”
and “polysubstance dependance,” which was in remission. R. 58. Though she found
“insufficient documented symptoms of depression to support a diagnosis of major depressive
disorder,” she noted that Cardoza’s “two severe mental impairments . . . do impose some mental
functional limitations on [him],” which were not being able to interact with the public,
experiencing anxiety in crowds and around people, paranoia, and being limited to doing “simple,
routine tasks.” R. 58-59.
Amy Leopold, identified as a “vocational expert” (“VE”), testified that a hypothetical
individual with physical and mental limitations and restrictions identified by the ALJ would be
able to perform several unskilled and sedentary nationally-available jobs. R. 67-72.
C. The Medical Evidence
Both Cardoza and the Commissioner have provided summaries of the medical evidence
contained in the administrative record. See Pl. Mem. at 2-12; Def. Mem. at 2-15. While the
Commissioner’s summary is more detailed, Cardoza’s summary is substantially consistent with
it. The Court had directed the parties to specify any objections they had to the opposing party’s
summary of the record, see Scheduling Order, filed Mar. 9, 2018 (Docket # 12), ¶ 5, and neither
party has done so. Accordingly, the Court adopts Cardoza’s and the Commissioner’s summaries
of the medical evidence as accurate and complete for purpose of the issues raised in this suit.
We discuss the medical evidence pertinent to the adjudication of this case in Section III below.
D. The ALJ’s Decision
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The ALJ denied Cardoza’s application for DIB and SSI on October 4, 2016. R. 40.
Following the five-step process set forth in SSA regulations, the ALJ found at step one that
Cardoza had not engaged in “substantial gainful activity since August 1, 2013, the alleged
[disability] onset date.” R. 28. At step two, the ALJ found that Cardoza had the following
severe impairments: “osteoarthritic changes of the left knee, lumbar herniated disc, obesity,
plantar fasciitis, generalized anxiety disorder, and unspecified depressive disorder.” R. 28. The
ALJ also noted that Cardoza had non-severe impairments of hypertension, asthma, and
obstructive sleep apnea. R. 29. At step three, the ALJ concluded that none of Cardoza’s severe
impairments, singly or in combination, met or medically equaled an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”). R. 29-30. The ALJ considered Listings
1.00, 11.00, and 12.00, as well as SSR 02-1p, in determining that Cardoza did not exhibit the
necessary medical criteria. R. 29-30. The ALJ also considered the “paragraph B” criteria with
respect to Cardoza’s mental impairments. R. 29-30.
Before moving to step four, the ALJ assessed Cardoza’s residual functional capacity
(“RFC”). R. 30-38. The ALJ determined that Cardoza retained the RFC “to perform sedentary
work . . . except when sitting, [Cardoza] must take a five minute break every hour in the vicinity
of the work station, and when standing/walking [Cardoza] must take a five minute break every
half hour in the vicinity of the work station.” R. 30. In making this determination, the ALJ
accorded varying weights to the opinions of Dr. Alan Ng, Dr. Michael Hossack, Dr. Lynne
Portnoy, Dr. Johari Massey, Dr. P. Kennedy-Walsh, Dr. Chaim Eliav, and Dr. Jennifer Blitz.
R. 31-37. Having determined Cardoza’s RFC, the ALJ evaluated at step four whether Cardoza
could continue his past work as a “kitchen helper” or “cleaner” and concluded that he could not.
R. 38. At step five, the ALJ found that Cardoza’s ability to perform “all or substantially all of
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the requirements” of a level of “full range of sedentary work” was “impeded by additional
limitations.” R. 39. However, based on the testimony of the VE, the ALJ determined that
Cardoza “would be able to perform the requirements of representative occupations,” which exist
in “significant numbers in the national economy.” R. 39-40. The ALJ thus determined that 20
C.F.R. §§ 404.1520(g) and 416.920(g) directed a finding of “not disabled” under the Act. R. 40.
II. GOVERNING STANDARDS OF LAW
A. Scope of Judicial Review Under 42 U.S.C. § 405(g)
A court reviewing a final decision by the Commissioner “is limited to determining
whether the [Commissioner’s] conclusions were supported by substantial evidence in the record
and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013)
(per curiam) (citations and internal quotation marks omitted); accord Greek v. Colvin, 802 F.3d
370, 374-75 (2d Cir. 2015) (per curiam); see generally 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive . . . .”). 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.’” Richardson
v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229
(1938)); accord Greek, 802 F.3d at 375; Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008);
Matthews v. Leavitt, 452 F.3d 145, 152 n.9 (2d Cir. 2006); Shaw v. Chater, 221 F.3d 126, 131
(2d Cir. 2000).
“Even where the administrative record may also adequately support contrary findings on
particular issues, the ALJ’s factual findings must be given conclusive effect so long as they are
supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per
curiam) (citation and internal quotation marks omitted). Thus, “[i]f the reviewing court finds
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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) (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990)). The Second Circuit has characterized the substantial evidence standard as “a very
deferential standard of review—even more so than the ‘clearly erroneous’ standard.” Brault v.
Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam). “The substantial
evidence standard means once an ALJ finds facts, [a court] can reject those facts only if a
reasonable factfinder would have to conclude otherwise.” Id. (emphasis in original) (citations
and internal quotation marks omitted). “The role of the reviewing court is therefore quite limited
and substantial deference is to be afforded the Commissioner’s decision.” Johnson, 563 F. Supp.
2d at 454 (citations and internal quotation marks omitted). Importantly, it is not a reviewing
court’s function “to determine de novo whether [a claimant] is disabled.” Schaal v. Apfel, 134
F.3d 496, 501 (2d Cir. 1998) (citation and internal quotation marks omitted); accord Cage v.
Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012).
B. Standard Governing Evaluation of Disability Claims by the Agency
The Social Security Act defines the term “disability” as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see id.
§ 1382c(a)(3)(A). A person will be found to be disabled only if it is determined that his
“impairments are 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), 1382c(a)(3)(B).
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To evaluate a Social Security claim, the Commissioner is required to examine: “(1) the
objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective
evidence of pain or disability testified to by the claimant or others; and (4) the claimant’s
educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037
(2d Cir. 1983) (per curiam); accord Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (per curiam);
Craig v. Comm’r of Soc. Sec., 218 F. Supp. 3d 249, 260 (S.D.N.Y. 2016).
Regulations issued pursuant to the Act set forth a five-step process that the
Commissioner must use in evaluating a disability claim. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4); see also Burgess, 537 F.3d at 120 (describing the five-step process). First, the
Commissioner must determine whether the claimant is currently engaged in any “substantial
gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). Second, if the claimant is
not engaged in substantial gainful activity, the Commissioner must decide if the claimant has a
“severe medically determinable physical or mental impairment,” 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii), which is an impairment or combination of impairments
that “significantly limits [the claimant’s] physical or mental ability to do basic work activities,”
20 C.F.R. §§ 404.1520(c), 416.920(c). Third, if the claimant’s impairment is severe and is listed
in 20 C.F.R. part 404, subpart P, appendix 1, or is equivalent to one of the listed impairments,
the claimant must be found disabled regardless of his age, education, or work experience. See
20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d). Fourth, if the
claimant’s impairment is not listed and is not equal to one of the listed impairments, the
Commissioner must review the claimant’s RFC to determine if the claimant is able to do work
he or she has done in the past, i.e., “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv). If the claimant is able to do such work, he or she is not disabled. 20 C.F.R.
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§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Finally, if the claimant is unable to perform past
relevant work, the Commissioner must decide if the claimant’s RFC, in addition to his or her
age, education, and work experience, permits the claimant to do other work. 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant cannot perform other work, he or she
will be deemed disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The claimant bears
the burden of proof on all steps except the final one — that is, proving that there is other work
the claimant can perform. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam).
C. The “Treating Source” Rule
In general, the ALJ must give “more weight to medical opinions” from a claimant’s
treating source when determining if the claimant is disabled. See 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2); see also Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (per curiam) (the
ALJ must give “a measure of deference to the medical opinion of a claimant’s treating
physician”). Treating sources “may bring a unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
An ALJ must accord “controlling weight” to a treating source’s medical opinion as to the nature
and severity of a claimant’s impairments if the opinion “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the claimant’s] case record.” 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). Inversely, the opinions of a treating source “need not be given controlling weight
where they are contradicted by other substantial evidence in the record.” Veino v. Barnhart, 312
F.3d 578, 588 (2d Cir. 2002) (citations omitted); accord Selian, 708 F.3d at 418 (“The opinion of
a treating physician on the nature or severity of a claimant’s impairments is binding if it is
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supported by medical evidence and not contradicted by substantial evidence in the record.”)
(citations omitted).
If the ALJ does not give controlling weight to a treating source’s opinion, the ALJ must
provide “good reasons” for the weight given to that opinion or face remand. See Greek, 802
F.3d at 375 (quoting Burgess, 537 F.3d at 129-30). When assessing how much weight to give
the treating source’s opinion, the ALJ should consider the factors set forth in the
Commissioner’s regulations, which are (I) the length of the treatment relationship and the
frequency of the examination; (ii) the nature and extent of the treatment relationship; (iii) the
supportability of the opinion with relevant evidence, particularly medical signs and laboratory
findings; (iv) the consistency of the opinion with the record as a whole; (v) whether the opinion
is from a specialist; and (vi) other relevant factors. See 20 C.F.R. §§ 404.1527(c)(2)-(6),
416.927(c)(2)-(6); see also Ellington v. Astrue, 641 F. Supp. 2d 322, 330-31 (S.D.N.Y. 2009)
(“the ALJ should weigh the treating physician’s opinion along with other evidence according to
the factors” listed in 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(2)-(6)). The Second Circuit has
stated that it will “not hesitate to remand when the Commissioner has not provided ‘good
reasons’ for the weight given to a treating physician[’]s opinion and [it] will continue remanding
when [it] encounter[s] opinions from ALJ[s] that do not comprehensively set forth reasons for
the weight assigned to a treating physician’s opinion.” Halloran, 362 F.3d at 33; see also Greek,
802 F.3d at 375-77. However, a “slavish recitation of each and every factor” is unnecessary
“where the ALJ’s reasoning and adherence to the regulation are clear.” Atwater v. Astrue, 512
F. App’x 67, 70 (2d Cir. 2013) (summary order).
III. DISCUSSION
Cardoza raises six grounds for reversing the ALJ’s decision: (1) the ALJ erred in failing
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to apply the “treating physician rule” to Dr. Ng, Pl. Mem. at 15-16;2 (2) the ALJ erred in finding
that Cardoza’s asthma was not severe and in not considering the asthma’s impact on Cardoza’s
RFC, id. at 18; (3) the ALJ erred in weighing the opinion of Dr. Massey, who conducted a
psychiatric consultative examination, id. at 20; (4) the ALJ did not properly consider Cardoza’s
obesity, id. at 22-23; (5) the ALJ did not include Cardoza’s use of a cane in her hypothetical to
the vocational expert, id. at 24; and (6) the ALJ should have found Cardoza disabled based on
the VE’s testimony, id. at 25. We discuss each argument next.
A. Application of the “Treating Source” Rule
In discussing the record and evaluating Cardoza’s RFC, the ALJ assigned various
weights to the opinions of different physicians who opined on Cardoza’s health over the years,
including the medical experts who opined on Cardoza’s medical records during the
administrative hearing. In making her RFC determination, the ALJ gave “[l]imited weight” to
the opinions of one of Cardoza’s treating physicians, Dr. Ng. R. 32. Specifically, the ALJ gave
limited weight to Dr. Ng’s opinion that Cardoza was “unable to work until further notice due to
low[er] back pain.” R. 32, 403. In giving limited weight to Dr. Ng’s medical opinions, the ALJ
found that Dr. Ng’s opinion was not sufficiently specific, and that the determination as to
whether Cardoza is disabled is “a determination reserved to the Commissioner.” R. 32. Cardoza
contends that greater weight should have been given to the opinions of Dr. Ng, “the
rehabilitation specialist who treated [him] more often than any other physician in the record.”
Pl. Mem. at 16. He also argues that Dr. Ng’s opinions “were well supported by objective
medical tests and clinical findings” as well as other sources in the record. Id. at 17. He claims
that the ALJ’s determination that Dr. Ng’s statements were inconsistent with each other is
2
The “treating source rule” is commonly referred to as the “treating physician rule.”
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contrary to the record. Id. at 17-18. After considering these arguments, we find no error in the
ALJ’s resolution of the conflicts among the medical opinions in the record.
As previously discussed in Section II, a treating source’s opinion, like that of Dr. Ng, is
given controlling weight if the opinion is well supported by objective medical and clinical
evidence in the record. If the opinion is inconsistent with other substantial evidence in the
record, the opinion need not be given controlling weight. See Green-Younger v. Barnhart, 335
F.3d 99, 106 (2d Cir. 2003) (citing 20 C.F.R. § 404.1527(d)(2)); accord Schisler v. Sullivan, 3
F.3d 563, 567 (2d Cir. 1993). Additionally, an ALJ need not defer to a treating source’s opinion
on the ultimate issue of disability. See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“the
ultimate finding of whether a claimant is disabled and cannot work” is to be made by the ALJ
and “[a] treating physician’s statement that the claimant is disabled cannot itself be
determinative”); accord Tracynger v. Comm’r, 269 F. Supp. 3d 106, 119-20 (S.D.N.Y. 2017)
(citing cases).
The ALJ did not err in according “limited weight” to Dr. Ng’s opinion that Cardoza was
disabled. See R. 403. To start with, the ALJ reasoned that Dr. Ng’s opinions did not warrant
controlling weight because several of his statements were inconsistent with each other. R. 33.
For example, in August 2015, Dr. Ng noted that Cardoza could spend less than one hour in total
standing or walking during an eight-hour work day, R. 447, and did not need to elevate his legs
while sitting, R. 446. But in December 2015, Dr. Ng noted that Cardoza could spend two hours
total standing or walking during the same period, R. 639, and would have to elevate his legs
while sitting, R. 638. And on different occasions, Dr. Ng found that Cardoza’s medical
conditions existed since August 2013, R. 450 (August 2015 visit), and then since April 1998,
R. 642 (December 2015 visit). He also found postural limitations in 2014, but did not identify
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any that were applicable in 2015. R. 448, 640. Despite finding Cardoza to be disabled, Dr. Ng
also reported that Cardoza was “able to perform chores without significant pain” on his current
dosage of medication. R. 768. He also noted on a different occasion that Cardoza was “doing
well on [his] current dosage.” R. 809. The finding that Cardoza had his condition since 1998
was particularly open to attack since, as the ALJ noted, R. 33, Cardoza had history of performing
heavy and medium work in the intervening period, R. 68-69, 283-86, 302.
In addition, there was other evidence in the record that contradicts Dr. Ng’s opinions and
statements. See R. 33. For example, Dr. Ng’s notes suggest that Cardoza could sit 15 minutes
or less continuously and then had to alternate his posture, R. 445, 637; spend less than one to two
hours total sitting with the same restriction, R. 446, 638; and stand or walk continuously for less
than 15 minutes before having to lie down or recline, R. 446, 638; see Pl. Mem. at 16. But Dr.
Eliav testified at the administrative hearing that Cardoza “would be able to sit for a cumulative
total of six hours in a day,” albeit with an hourly five-minute break. R. 55; see also R. 89. The
ALJ gave Dr. Eliav’s opinion “great weight,” R. 35, which was a reasonable exercise of her
discretion. See Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995) (“[T]he opinions of
nonexamining sources [can] override treating sources’ opinions provided they are supported by
evidence in the record.”); accord Suttles v. Colvin, 654 F. App’x 44, 46 (2d Cir. 2016) (summary
order) (no error by ALJ to give great weight to consultative examiner’s opinion because it was
consistent with record evidence). In another example, Dr. Ng opined that Cardoza’s pain
“interfered with his ability to ambulate” over his 34 examinations with Cardoza from November
2013 to December 2015. It was this pain that rendered him disabled, according to Dr. Ng. See
Pl. Mem. at 16; R. 732-848. But in July 2014, Dr. Gitkind of Montefiore Medical Center noted
that Cardoza “report[ed] excellent and almost complete relief of pain following his first [steroid
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injection for the pain] which lasted 5-6 days, followed by a return of pain, now back to baseline.”
R. 535. Dr. Gitkind noted that Cardoza “was quite encouraged” with the results of the
medication and was eager to proceed with additional injections, which were so scheduled. Id.
Another physician noted only moderate limitation in Cardoza’s range of motion, contradicting
Dr. Ng’s opinion that Cardoza was disabled. See R. 399-401 (Dr. Portnoy’s conclusion that
Cardoza was only “moderately limited from lifting, bending, repeated kneeling, climbing,
stooping, and reaching”).
Cardoza’s testimony itself also appears to contradict Dr. Ng’s opinion that Cardoza could
not sit for one to two hours in a day. At the administrative hearing, Cardoza, in response to a
question about his ability to stand, said “I sit a lot. With the pinched nerve, I have to sit a lot. I
can walk but not very much. I have to stand a lot.” R. 63. Cardoza’s testimony is consistent
with the ALJ’s conclusion that he could perform sedentary work, see R. 39-40, and is not
consistent with Dr. Ng’s opinion that Cardoza could only sit for one to two hours total during an
eight-hour day. Certainly, as Cardoza notes, Dr. Ng “examined Mr. Cardoza at least thirty-four
times,” Pl. Mem. at 18; see 732-848, and there are differing opinions presented in the medical
record. But even if Dr. Ng’s opinion’s were “well supported by objective medical tests and
clinical findings” in the record, Pl. Mem. at 17, it is within the ALJ’s discretion to resolve
“[g]enuine conflicts in the medical evidence.” Veino, 312 F.3d at 588; see also Fiorello v.
Heckler, 725 F.2d 174, 176 (2d Cir. 1983) (the ALJ need not “reconcile explicitly every
conflicting shred of medical testimony”); accord Camara v. Colvin, 2013 WL 5870059, at *5
(S.D.N.Y. Oct. 23, 2013) (“[E]ven if substantial evidence did support both viewpoints here, the
Court must uphold the Commissioner’s finding. ‘Where there is substantial evidence to support
either position, the determination is one to be made by the factfinder.’”) (quoting Alston v.
14
Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)).
Other evidence supported the ALJ’s conclusion that Cardoza could do sedentary work
and could walk a moderate amount. For example, in July 2014, Dr. Gitkind reported straight leg
raise tests were negative bilaterally, that Cardoza had full strength in the hip flexors, quadriceps,
hamstrings, dorsiflexors, extensor hallucis longus, and plantar flexors. R. 534-35. Dr. Portnoy
found only moderate limitations in plaintiff’s exertional abilities and found full strength in all
extremities and other favorable results, including a normal gait and stance. R. 398-400. Because
there is substantial evidence in the record that contradicts Dr. Ng’s opinions, the ALJ could
properly give limited weight to Dr. Ng’s opinions.
B. Consideration and Severity of Claimant’s Asthma
The ALJ found that Cardoza’s asthma was “considered stable” and therefore would not
“significantly limit [Cardoza]’s ability to perform basic work activities.” R. 29. The ALJ also
noted that Cardoza did not allege any respiratory impairment as a medical condition on his initial
Disability Report. R. 29; see R. 301. The ALJ gave “some weight” to the consultative
examination performed by Dr. Portnoy, except to the extent of her finding that, in part due to his
asthma, Cardoza “should avoid environments of high particulate or dust matter, . . . lowered
oxygen tension . . . [, and] activity in environments in extremes of heat and cold.” R. 34, 401.
This finding, the ALJ explained, was “not consistent with the evidence . . . .” R. 34. In her
hypothetical to the VE, the ALJ did not include asthma as a functional limitation or restriction,
R. 39, and did not expressly mention asthma in the list of factors she considered in determining
Cardoza’s RFC, R. 30.
Cardoza contends that the ALJ’s categorizing of his asthma condition as “non-severe”
was erroneous because his “asthma fluctuated and was not always considered stable.” Pl. Mem.
15
at 19. He points to evidence in the record where his source physicians described the asthma as
“moderate persistent” or “uncontrolled.” Id. He claims that the ALJ erred when she found Dr.
Portnoy’s consultative examination to be inconsistent with the evidence in the medical records.
Id. Cardoza also argues that even assuming the asthma was non-severe, the ALJ erred because
she failed to consider it when determining Cardoza’s RFC. Id. at 19-20.
Under the Commissioner’s regulations, an alleged impairment is “severe” only “if it
significantly limits an individual’s physical or mental abilities to do basic work activities.” SSR
96-3p, 1996 WL 374181, at *1 (S.S.A. July 2, 1996); 20 C.F.R. § 404.1520(c). A “non-severe”
impairment is one that is “a slight abnormality (or a combination of slight abnormalities) that has
no more than a minimal effect on the ability to do basic work activities.” SSR 96-3p, 1996 WL
374181, at *1; accord Bowen v. Yuckert, 482 U.S. 137, 154 n.12 (1987). Basic work activities
include the following: “‘walking, standing, sitting, lifting, pushing, pulling, reaching, carrying,
or handling . . . seeing, hearing, and speaking . . . [u]nderstanding, carrying out and remembering
simple instructions . . . [u]se of judgment . . . [r]esponding appropriately to supervision, coworkers and usual work situations.’” Taylor v. Astrue, 32 F. Supp. 3d 253, 265 (N.D.N.Y. 2012)
(alterations in original) (quoting Gibbs v. Astrue, 2008 WL 2627714, at *16 (S.D.N.Y. July 2,
2008) and 20 C.F.R. § 404.1521(b)3). “[T]he ‘mere presence of a disease or impairment, or
establishing that a person has been diagnosed or treated for a disease or impairment,’ is not, by
itself, sufficient to render a condition ‘severe.’” Taylor, 32 F. Supp. 3d at 265 (quoting Coleman
v. Shalala, 895 F. Supp. 50, 53 (S.D.N.Y. 1995)).
Although “[a] finding of ‘not severe’ should be made if the medical evidence establishes
only a ‘slight abnormality’ which would have ‘no more than a minimal effect on an individual’s
3
“Basic work activities” are currently defined under 20 C.F.R. § 404.1522(b).
16
ability to work,’” Rosario v. Apfel, 1999 WL 294727, at *5 (E.D.N.Y. Mar. 19, 1999) (quoting
Bowen, 482 U.S. at 154 n.12), the ALJ must take into account the cumulative effects of ailments,
including those that are non-severe. 20 C.F.R. § 404.1545 (“We will consider all of your
medically determinable impairments of which we are aware, including your medically
determinable impairments that are not ‘severe.’”); accord Dixon v. Shalala, 54 F.3d 1019, 1031
(2d Cir. 1995). As stated above, “[e]ven where the administrative record may also adequately
support contrary findings on particular issues, the ALJ’s factual findings must be given
conclusive effect so long as they are supported by substantial evidence.” Genier, 606 F.3d at 49
(per curiam) (citation and internal quotation marks omitted).
With respect to the ALJ’s conclusion that the asthma condition was non-severe, R. 29,
this finding is supported by the notes and opinions of treating physicians Dr. David Appel, see
R. 531, and Dr. Lynne Portnoy, see R. 401, and from the notes of Cardoza’s visits to
Neighborhood and Family Health Center, see, e.g., R. 378, and the Casa Maria Community
Health Center, see R. 973. Certainly, there are indications that Cardoza had a diagnosis of
asthma. Records from an October 22, 2013, visit to Neighborhood and Family Health Center
reveal that the facility listed asthma in Cardoza’s past medical history. R. 367. The same was
noted by treating physician Dr. Massey on December 26, 2013, who also noted that although
Cardoza “reports that he has been hospitalized several times for asthma, . . . it has not been in a
long time” and he was “unable to remember any details about [the hospitalizations].” R. 390.
That same day, Dr. Portnoy noted that Cardoza had been diagnosed with asthma “since
childhood” and that he “uses Ventolin and a home nebulizer as needed.” R. 397. Other medical
appointments confirm Cardoza’s asthma diagnosis. See, e.g., R. 973 (January 2016), R. 551
(November 2015), R. 528 (October 2015), R. 992 (September 2015), R. 422 (April 2014).
17
Beyond a diagnosis, however, there was virtually no evidence that Cardoza’s asthma
caused more than a minimal effect on his ability to work. As part of an annual exam in August
2013, the Neighborhood and Family Health Center noted that Cardoza’s asthma was “stable” and
ordered a refill of his abuterol medication. R. 378. Dr. Portnoy found that the asthma was
“stable” in December 2013. R. 401. In October 2015, Dr. Appel of Montefiore concluded that
Cardoza’s asthma was “[v]ery well-controlled with no symptoms, no findings, and no adverse
effects . . . .” R. 531. In January 2016, Casa Maria Community Health Center reported that the
asthma was “uncomplicated” and “[s]table.” R 975; accord R. 973. Here, because substantial
evidence supports the ALJ’s conclusion that Cardoza’s asthma was not a severe impairment, it
must be upheld.4
Cardoza argues in the alternative that the ALJ erred because she failed to consider the
asthma impairment when determining his RFC. Pl. Mem. at 19-20. However, the ALJ
specifically considered Dr. Portnoy’s opinion that Cardoza “should avoid environments of high
particle or dust matter or lowered oxygen tension, as well as activity in environments in
extremes of heat and cold.” R. 34. The ALJ declined to give this opinion weight because is was
“not consistent with the evidence . . . .” Id. In fact, there was no evidence in the record to
support Dr. Portnoy’s opinion in this regard. In determining the RFC, the ALJ took into account
all severe and non-severe ailments, see R. 28-29, and specifically considered the asthma
condition and Dr. Portnoy’s opinion. As explained above, the record did not reflect limitations
attributable to asthma. Indeed, Cardoza had denied any problems with asthma in April 2015. R.
4
Additionally, Cardoza does not point to any evidence in the record suggesting that his
asthma contributed to any functional limitations. As stated above, Cardoza did not allege any
respiratory impairment as a medical condition on his initial Disability Report. R. 29; see R. 301.
Cardoza denied the existence of asthma issues on one occasion. See R. 557 (April 2015).
18
557. The ALJ’s RFC determination was thus supported by substantial evidence.
C. Weight of the Psychiatric Consultive Examination
Cardoza argues that the ALJ erred in giving Dr. Massey’s opinion that Cardoza had
certain deficits in “attention and concentration” and “recent and remote memory skills,” R. 39394, only “some weight,” and that Dr. Massey’s opinion was consistent with the record as a
whole. See Pl. Mem. at 20. In determining Cardoza’s RFC, the ALJ gave Dr. Massey’s opinion
“some weight” because the “the record [did] not support marked limitations” in Cardoza’s ability
to mentally function. R. 36. The ALJ found that Cardoza was able to “have occasional
interaction with supervisors and coworkers, but no interaction with the general public.” R. 30.
She found that he “can understand, remember, and carry out simple instructions, but cannot
perform complex or detailed instructions,” and can “occasionally respond to changes in a routine
work setting.” Id. The ALJ based her findings in part on the record evidence that Cardoza was
diagnosed in July 2013 with “major depressive disorder and anxiety disorder,” R. 35; see R. 407,
and on additional treatment notes from October 2013 to September 2014 that reflected the
depressive disorder, R. 35; see R. 684-85, 939-40. Based on the same reports, the ALJ noted
that Cardoza’s memory was intact, that his speech was clear, and that his “[r]easoning, impulse
control, and judgment were fair.” R. 35; see R. 684-85, 939-40. The ALJ also detailed
Cardoza’s Global Assessment of Functioning (“GAF”) scores, finding them to reflect “[s]ome
impairment in reality testing or communication or major impairment in several areas,” including
at “work.” R. 35; see R. 685.5 The ALJ also noted a second GAF score that signaled “mild”
5
A GAF, or “global assessment of functioning,” score is a scale that was “promulgated
by the American Psychiatric Association to assist ‘in tracking the clinical progress of individuals
[with psychological problems] in global terms.’” Kohler v. Astrue, 546 F.3d 260, 262 n.1 (2d
Cir. 2008) (alterations in original) (quoting Am. Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders (“DSM”) 32 (4th ed. 2000)). “GAF scores may be relevant to an
19
symptoms, which reflected potential issues with Cardoza’s social environment functioning.
R. 35; see R. 710.6
The ALJ summarized Dr. Massey’s opinion in great detail, noting, among other things,
the following: Cardoza had never been hospitalized for “any psychiatric reason and did not have
a history of seeing a therapist”; though Cardoza “reported a suicide attempt in 2002,” he has had
no “attempt or plan since” and has “denied any suicidal ideation”; “eye contract was
appropriate”; “speech was fluent and clear”; and Cardoza was “oriented with mildly impaired
attention and concentration and moderately-to-markedly impaired recent and remote memory
skills.” R. 35; see R. 390-95 (Dr. Massey’s report). The ALJ considered Dr. Massey’s views on
Cardoza’s ability to perform daily tasks of grooming and dressing and that he needed help
cooking and cleaning. R. 36. Finally, the ALJ considered Dr. Massey’s finding that Cardoza’s
ability to concentrate was “mildly impaired,” that Cardoza had a history of prior substance
abuse, and that his “abilities to learn new tasks and perform complex tasks were moderately to
markedly impaired.” R. 36; see R. 394. As the ALJ noted, R. 36, Dr. Massey found that “[t]he
ALJ’s severity and RFC determinations, although they are intended to be used to make treatment
decisions . . . and not disability determinations.” Gonzalez v. Colvin, 2016 WL 4009532, at *5
(W.D.N.Y. July 27, 2016) (alteration in original) (internal quotation marks and citation omitted).
As reflected in the Fifth Edition of the DSM, published in 2013, the GAF scale is “no longer in
use.” Kaczkowski v. Colvin, 2016 WL 5922768, at *12 (S.D.N.Y. Oct. 11, 2016).
6
The ALJ gave the GAF scores “little weight” because “they are snapshots in time.”
R. 37. Cardoza argues that the GAF scores indicate a “major impairment” and that his
limitations were severe. Pl. Mem. at 21; Pl. Reply at 3-4. The Court has considered Cardoza’s
arguments regarding the GAF scores. But because the ALJ’s reasoning and decision regarding
Dr. Massey’s psychiatric consultative examination are supported by substantial evidence, we
need not opine separately as to whether the GAF scores themselves were given proper weight.
Cf. Tilles v. Comm’r of Soc. Sec., 2015 WL 1454919, at *33 (S.D.N.Y. Mar. 31, 2015) (noting
that “the GAF is a less useful metric than some earlier cases report, as it has been removed from
the DSM-V,” and that even “prior to the release of the DSM-V in 2013, courts have held that an
ALJ’s failure to consider every GAF score is not a reversible error”) (citation and internal
quotation marks omitted).
20
results of the examination appear to be consistent with psychiatric problems, but in itself does
not appear significant enough to interfere with the claimant’s ability to function on a daily
basis.” R. 394 (emphasis added).
In addition to the above, the ALJ considered other record evidence when considering the
effect of Cardoza’s psychiatric limitations on his RFC. This includes Dr. Kennedy-Walsh’s
opinion that Cardoza could “understand, remember, and carry out simple instructions,” R. 36
(citing R. 88); NY Psychotherapy and Counseling Center’s September 2015 report that Cardoza
was not receiving psychiatric therapy, but that he had done so in the past and that his current
medication was helping, R. 36 (citing R. 618); and Dr. Blitz’s testimony that Cardoza, due to his
anxiety and depressive disorders, was “limited to simple, routine tasks,” R. 37, and that his
ability to function in such a manner depended on “compliance with his medication,” R. 58-59.
Cardoza contends that the ALJ erred in affording Dr. Massey’s opinion only “some
weight” because the record corroborates Dr. Massey’s opinions, and because the ALJ should
have considered the importance of an in-person examination in the mental health context. Pl.
Mem. at 22 (citing Canales v. Comm’r of Soc. Sec., 698 F. Supp. 2d 335, 342 (E.D.N.Y. 2010)).
He claims that he has “consistently been diagnosed with a mental health impairment,” and
specifically that it is been diagnosed at as a “major impairment.” Pl. Mem. at 20-21. Cardoza
also appears to argue that at least one of his prognoses assumed a continued course of
prescription medications, and that his demonstrated inability to “make appropriate decisions”
regarding his everyday life renders this assumption faulty. See Pl. Mem. at 21-22. In other
words, Cardoza appears to argue that there is no guarantee that he would continue to take his
medication as prescribed, thus leaving the possibility for his limitations to become “more
significant.” Id. at 22 (emphasis omitted). Finally, Cardoza argues that his “moderate[] to
21
marked[] impair[ments]” are corroborated by “the fact that [he] appeared late at his hearing,” an
event “critically important to his future.” Pl. Mem. at 22.
Unlike a treating source, “a ‘nontreating source’ is defined as a ‘physician, psychologist,
or other acceptable medical source who has examined [the plaintiff] but does not have, or did not
have, an ongoing treatment relationship with [the plaintiff].’” Calixte v. Colvin, 2016 WL
1306533, at *24 (E.D.N.Y. Mar. 31, 2016) (quoting 20 C.F.R. § 416.902). A consultative
examiner, such as Dr. Massey, is considered a non-treating source. See Dannettel v. Comm’r of
Soc. Sec., 2014 WL 4854980, at *7 n.4 (N.D.N.Y. Sept. 30, 2014). While the Second Circuit
has “cautioned that ALJs should not rely heavily on the findings of consultative physicians after
a single examination,” Selian, 708 F.3d at 419, a consultative physician’s opinion may
nonetheless constitute substantial evidence, Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir.
2011). When weighing the opinion of a non-treating source, the ALJ must consider how closely
the opinion aligns with the objective medical record evidence, which is similar to its evaluation
of a treating source. See Zongos v. Colvin, 2014 WL 788791, at *7 (N.D.N.Y. Feb. 25, 2014).
Especially “[i]n the case of mental disabilities, the results of a single examination may
not adequately describe the claimant’s sustained ability to function. It is, therefore, vital that [a
court] review all pertinent information relative to the claimant’s condition, especially at times of
increased stress.” Corporan v. Comm’r of Soc. Sec., 2015 WL 321832, at *28 (S.D.N.Y. Jan.
23, 2015) (internal quotation marks, citation, and additional brackets omitted; first set of
brackets supplied).
Substantial record evidence, which the ALJ considered in detail, exists to support the
ALJ’s decision to accord Dr. Massey’s opinion “some weight.” Specifically, substantial
evidence exists that supports the ALJ’s conclusion that “the record does not support marked
22
limitations” stemming from Cardoza’s psychiatric illnesses. R. 36. To be sure, Dr. Massey’s
conclusion that Cardoza had mental health impairments of depression and anxiety are consistent
with the record. See R. 394 (Dr. Massey); R. 407 (Dr. Francisco J. Gonzalez-Franco); R. 684
(Clay Ave Health Center). In fact, the ALJ’s decision acknowledges and details Cardoza’s
limitations stemming from his mental illnesses. R. 36. Further supported are the ALJ’s
conclusion and reasoning that the limitations did not rise to the level of “marked limitations.”
Id. First, the ALJ noted that Dr. Massey’s report itself found that Cardoza’s psychiatric
problems did not “appear significant enough to interfere with the claimant’s ability to function
on a daily basis.” R. 36; see R. 394. This itself could constitute substantial evidence based on
the ALJ’s discretion in weighing the opinions of the medical examiners in the record. See Cruz
v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990) (citation and internal quotation marks omitted)
(recognizing “that the resolution of genuine conflicts between the opinion of the treating source,
with its extra weight, and any substantial evidence to the contrary remains the responsibility of
the fact-finder”). But the ALJ relied on additional record evidence. She considered Dr.
Kennedy-Walsh’s opinion that Cardoza could carry out simple instructions and that his
“concentration was not impaired in a low pressure work setting” despite his anxiety and
depression. R. 36. The ALJ also considered Dr. Blitz’s opinion that Cardoza would have to
avoid contact with the general public, but that he could function performing simple, routine tasks
despite his limitations. R. 37. As stated above, it is within an ALJ’s discretion to resolve
“[g]enuine conflicts in the medical evidence.” Veino, 312 F.3d at 588. Thus, even if evidence
exists in the form of Dr. Massey’s opinion of “marked limitations,” the ALJ relied on substantial
evidence in the record to the contrary.
Moreover, Cardoza is incorrect when he suggests that the ALJ found Dr. Massey’s
23
opinion to be contrary to the record. See Pl. Mem. at 20. In fact, the ALJ found that Dr.
Massey’s opinion was “generally consistent with the evidence.” R. 36. But the ALJ went
further, and consistent with the Second Circuit’s directive that “ALJs should not rely heavily on
the findings of consultative physicians after a single examination,” Selian, 708 F.3d at 419, the
ALJ also considered the notes and psychiatric opinions of Dr. Kennedy-Walsh, NY
Psychotherapy and Counseling Center, and specialist Dr. Blitz in making her RFC
determination. See R. 36-37. Those records show that notwithstanding Dr. Massey’s opinion
that Cardoza had certain psychiatric limitations, those limitations would not “interfere with [his]
ability to function on a daily basis.” R. 36. Finally, even accepting the possibility that Cardoza
may not consistently take his medication, this fact would not call into question the ALJ’s
reliance on substantial evidence in assigning Dr. Massey’s opinion “some weight.” Because
substantial evidence in the record exists showing that Cardoza’s psychiatric limitations were
adequately considered and weighed by the ALJ, we find no error in her giving “some weight” to
Dr. Massey’s opinions.
D. Consideration of Claimant’s Obesity
Cardoza next argues that the ALJ erred in failing to “explain how she reached her
conclusions on whether obesity alone or in combination with Mr. Cardoza’s other impairments
impacted his ability to function.” Pl. Mem. at 23. In making her disability determination, the
ALJ considered Cardoza’s weight and obesity in several instances. First, she noted obesity as
one of Cardoza’s “severe impairments.” R. 28. She also reviewed several times the medical
record evidence that specifically noted Cardoza’s obesity, body mass index, or weight. See
R. 31 (citing, e.g., R. 370, 551, 868, 902); id. (the ALJ concluded that “[e]xaminations were
essentially normal, except for a weight over 270 pounds”). The ALJ also took into consideration
24
treating and other physician opinions concerning Cardoza’s weight, see R. 34 (Dr. Portnoy’s
opinions and findings), and considered weight gain in combination with his other physical and
psychological ailments, see R. 35, 38 (“while the claimant alleged to a consultative examiner
that he had an increased appetite with weight gain of 80 pounds over the prior year and suicidal
ideation, in treatment notes the claimant indicated that he did not overeat or have poor appetite”).
Cardoza argues that the ALJ failed to explain her decision-making concerning the obesity in
steps three, four, and five of her analysis. See Pl. Mem. at 23-24 (citing SSR 02-1p).
Under SSR 02-1p, obesity may be considered “severe” — and thus medically equal to a
listed disability — if “alone or in combination with another medically determinable physical or
mental impairment(s), it significantly limits an individual’s physical or mental ability to do basic
work activities.” See SSR 02-1p, Titles II and XVI: Evaluation of Obesity, 67 Fed. Reg. 57859,
57861-62 (Sept. 12, 2002), 2002 WL 34686281, at *4. “Obesity is not in and of itself a
disability,” and courts have held that “an ALJ’s failure to explicitly address a claimant’s obesity
does not warrant remand.” Guadalupe v. Barnhart, 2005 WL 2033380, at *6 (S.D.N.Y. Aug. 24,
2005) (citing Titles II and XVI: Evaluation of Obesity, SSR 00–3p, 2000 WL 33952015 (May
15, 2000)) (additional citations omitted). But while “[t]he SSA removed obesity from the list of
impairments in October 1999[,] . . . the ALJ must consider the effects of obesity in combination
with other impairments throughout the five-step inquiry.” Dieguez v. Berryhill, 2017 WL
3493255, at *3 (S.D.N.Y. Aug. 15, 2017) (citations omitted); accord Battle v. Colvin, 2014 WL
5089502, at *5 (W.D.N.Y. Oct. 9, 2014). “‘Conversely, the ALJ’s obligation to discuss a
claimant’s obesity alone, or in combination with other impairments, diminishes where evidence
in the record indicates the claimant’s treating or examining sources did not consider obesity as a
significant factor in relation to the claimant’s ability to perform work related activities.’” Battle,
25
2014 WL 5089502, at *5 (quoting Farnham v. Astrue, 832 F. Supp. 2d 243, 261 (W.D.N.Y.
2011)) (citing cases); accord Cahill v. Colvin, 2014 WL 7392895, at *27 (S.D.N.Y. Dec. 29,
2014).
Here, the ALJ discussed Cardoza’s weight in the context of the medical examinations by
his physicians and considered the findings of the medical examiners as a whole and in
combination with other ailments. See R. 28, 31, 33, 34, 35, 37, 38. Specifically, the ALJ’s
decision discussed record evidence of Cardoza’s obesity, see R. 31, 34, 35, 37, and the ALJ’s
RFC assessment specifically mentioned his obesity, see R. 31, 33-34, 35. Additionally, the
record contains ample evidence from doctors who accounted for Cardoza’s obesity, see, e.g.,
R. 431, 525, 530, 538 (notes from Montefiore Medical Center); R. 551, 555, 559, 575, 579 (from
Neighborhood and Family Health Center); R. 627 (NY Psychotherapy and Counseling Center);
R. 644 (Dr. Ng); R. 868, 902, 908 (Lincoln Medical and Mental Health Center); R. 970 (Casa
Maria Community Health Center). Because the ALJ considered this record evidence, including
the opinions of treating and other physicians, and found obesity to be a severe ailment, she took
into account Cardoza’s obesity in steps three, four, and five of her analysis. See Guadalupe,
2005 WL 2033380, at *6 (“When an ALJ’s decision adopts the physical limitations suggested by
reviewing doctors after examining the Plaintiff, the claimant’s obesity is understood to have
been factored into their decisions.”) (citation omitted).
Cardoza’s argument that the ALJ failed to explicitly explain her decision making, see Pl.
Mem. at 23-24 (citing SSR 02-1p), also fails. This is because the ALJ considered Cardoza’s
obesity as noted above, explicitly discussed the obesity in connection with other ailments,
including psychological ailments, and factored it into her RFC assessment. This is sufficient
under SSR 02-1p. See Drake v. Astrue, 443 F. App’x 653, 657 (2d Cir. 2011) (“the ALJ
26
implicitly factored [claimant’s] obesity into his RFC determination by relying on medical reports
that repeatedly noted [claimant’s] obesity”); accord Corsi v. Colvin, 2013 WL 5504430, at *8
(W.D.N.Y. Oct. 2, 2013) (SSR 02-1p was satisfied when the ALJ sufficiently considered obesity
in determining the claimant’s RFC); Miller v. Astrue, 2013 WL 789232, at *11 (E.D.N.Y. Mar.
1, 2013) (same); see also Mancuso v. Astrue, 361 F. App’x 176, 178 (2d Cir. 2010) (ALJ did not
err in consideration of obesity where “there [was] no factual basis for thinking that ‘any
additional and cumulative effects of obesity’ limited [the claimant’s] ability to perform light
work”) (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00Q); Marthe v. Colvin, 2016 WL
3514126, at *5 (W.D.N.Y. June 28, 2016) (SSR 02-1p not satisfied and case remanded where
ALJ’s only consideration of claimant’s obesity was ALJ’s “self-serving comment, at step two,
that he adequately considered SSR 02-1p regarding Plaintiff's obesity, both singly and in
combination with her underlying impairments”) (internal quotation marks, brackets, and citation
omitted). Based on the evidence considered by the ALJ and the record as a whole, the ALJ
sufficiently considered and explained her decision-making regarding Cardoza’s obesity.
E. Omission of Use of the Cane in the ALJ’s Hypothetical to the Vocational Expert
Cardoza argues that the ALJ erred because she did not include his use of a cane in her
hypothetical to the VE. Pl. Mem. at 24-25. It is undisputed that Cardoza used a cane to walk,
see, e.g., R. 89, 100, 315, 392, 398-99, 422, 426, 539, 644, and that the cane had been prescribed
and was medically necessary, see R. 972 (prescription for cane); accord R. 399, 448-49, 641-42.
The ALJ discussed Cardoza’s use of a cane during the RFC analysis. See R. 32, 33, 34, 35, 37.
In discussing the use of a cane and the performance of sedentary work, Cardoza relies
upon Social Security Ruling 96-9p, which provides, in relevant part:
The ability to perform the full range of sedentary work requires the ability to lift
no more than 10 pounds at a time and occasionally to lift or carry articles like
27
docket files, ledgers, and small tools. Although a sedentary job is defined as one
that 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. “Occasionally” means
occurring from very little up to one-third of the time, and would generally total no
more than about 2 hours of an 8-hour workday. Sitting would generally total
about 6 hours of an 8-hour workday. Unskilled sedentary work also involves
other activities, classified as “nonexertional,” such as capacities for seeing,
manipulation, and understanding, remembering, and carrying out simple
instructions. . . .
Since most unskilled sedentary work requires only occasional lifting and carrying
of light objects such as ledgers and files and a maximum lifting capacity for only
10 pounds, an individual who uses a medically required hand-held assistive
device in one hand may still have the ability to perform the minimal lifting and
carrying requirements of many sedentary unskilled occupations with the other
hand. For example, an individual who must use a hand-held assistive device to
aid in walking or standing because of an impairment that affects one lower
extremity (e.g., an unstable knee) or to reduce pain when walking, who is limited
to sedentary work because of the impairment affecting the lower extremity, and
who has no other functional limitations or restrictions may still have the ability to
make an adjustment to sedentary work that exists in significant numbers. On the
other hand, the occupational base for an individual who must use such a device
for balance because of significant involvement of both lower extremities (e.g.,
because of a neurological impairment) may be significantly eroded.
In these situations, too, it may be especially useful to consult a vocational
resource in order to make a judgment regarding the individual’s ability to make
an adjustment to other work.
1996 WL 374185, at *3, *7 (footnote omitted).
The problem here is that the ALJ did not consult a vocational resource to make a
judgment as to how Cardoza’s use of a cane would affect his ability to perform work. As the
Second Circuit has noted, “[a]t Step Five [in the disability evaluation process], the
Commissioner must determine that significant numbers of jobs exist in the national economy
that the claimant can perform,” and an “ALJ may make this determination either by applying the
Medical Vocational Guidelines or by adducing testimony of a vocational expert.” McIntyre v.
Colvin, 758 F.3d 146, 151 (2d Cir. 2014). An ALJ may rely on a vocational expert’s testimony
28
presented in response to a hypothetical if there is “substantial record evidence to support the
assumption[s] upon which the vocational expert based his opinion.” Dumas v. Schweiker, 712
F.2d 1545, 1554 (2d Cir. 1983) (footnote omitted); accord De Leon v. Sec’y of Health and
Human Servs., 734 F.2d 930, 936 (2d Cir. 1984) (where the ALJ does not present “the full
extent”of plaintiff’s physical disabilities to the vocational expert, “the record provides no basis
for drawing conclusions” about whether the plaintiff’s limitations render him disabled);
Pritchard v. Colvin, 2014 WL 3534987, at *10 (N.D.N.Y. July 17, 2014) (“If a hypothetical
question does not include all of a claimant’s impairments, limitations and restrictions, or is
otherwise inadequate, a vocational expert’s response cannot constitute substantial evidence to
support a conclusion of no disability.”) (citation omitted).
An ALJ certainly is “not required to incorporate restrictions into the RFC or pose a
hypothetical to [a vocational expert] that [is] not supported by the record.” Margotta v. Colvin,
2014 WL 2854623, at *13 (S.D.N.Y. June 23, 2014) (citing Dumas, 712 F.2d at 1554). Here,
however, the Commissioner does not contest the cane was medically necessary. See Def. Mem.
at 7, 9, 10, 15, 18, 20 (noting Cardoza’s use of a cane in summarizing the record evidence).
Moreover, Cardoza testified at his hearing that he used a cane “all the time,” R. 63, and the
record is replete with instances of medical examiners noting Cardoza’s use of a cane, see R. 89,
100, 392, 398-99, 422, 426, 539, 644.
In Suarez v. Colvin, 2014 WL 5099207 (S.D.N.Y. Oct. 1, 2014), this same issue arose.
That is, the claimant used a medically-prescribed cane and this fact was not presented to the VE.
Id. at *12. Suarez remanded the case so that this error could be corrected. Cardoza cited to
Suarez in his initial brief. Pl. Mem. at 25. Yet the Commissioner did not address it — either by
distinguishing it or by arguing that it was wrongly decided. Instead, the Commissioner argued
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that because the ALJ’s hypothetical to the VE was based on an RFC supported by substantial
evidence, it must follow that the ALJ could properly rely on the VE’s testimony that there were
jobs in the national economy that Cardoza could perform. See Def. Mem. at 42.
But the sole case the Commissioner cites in support of this position, Calabrese v. Astrue,
358 F. App’x 274 (2d Cir. 2009), see Def. Mem. at 42, states that an “ALJ may rely on a
vocational expert’s testimony regarding a hypothetical as long as the facts of the hypothetical are
based on substantial evidence . . . and accurately reflect the limitations and capabilities of the
claimant involved.” Calabrese, 358 F. App’x at 276 (citation omitted) (emphasis added). The
Commissioner does not explain why the omission of the cane from the hypothetical to the VE
permits us to conclude that the hypothetical was an “accurate[]” reflection of Cardoza’s
limitations. The omission of the use of a cane was material because, as SSR 96-9p makes clear,
the “occupational base for an individual who must use [a hand-held assistive] device for balance
because of significant involvement of both lower extremities . . . may be significantly eroded.”
1996 WL 374185, at *7; see, e.g., Blanket v. Berryhill, 2017 WL 2234184, at *4 (E.D. Wash.
May 22, 2017) (where the “VE gave no testimony regarding whether the jobs he identified could
be performed if Plaintiff required the use of a cane,” the court remanded so that the ALJ could
“make a finding regarding the circumstances under which Plaintiff’s use of a cane is necessary
and when it became necessary”); Suarez, 2014 WL 5099207, at *12, *14 (remanding in part
because the ALJ relied on the VE’s testimony in response to the ALJ’s hypothetical that omitted
any reference to the plaintiff’s use of a cane); Steigerwald v. Comm’r of Soc. Sec., 2013 WL
5330837, at *7 (N.D. Ohio Sept. 23, 2013) (“Upon remand, the ALJ should clearly indicate
whether the use of a hand-held assistive device was medically required and, if so, provide an
appropriate hypothetical to the VE.”) (footnote omitted); cf. Durfee v. Berryhill, 2017 WL
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877272, at *5 (D.R.I. Feb. 15, 2017) (no error in the ALJ’s omission of use of cane in the VE
hypothetical because of the “the complete absence of the required medical documentation to
support that Plaintiff’s use of the can[e] was medically required”). The VE here was never asked
to opine on the availability of jobs for a person with Cardoza’s RFC who uses a cane.
Accordingly, we cannot be assured that the VE identified jobs that Cardoza would be able to do.
On remand, the ALJ must present to the VE a hypothetical that includes the fact that Cardoza
uses a cane.
F. The Vocational Expert’s Testimony
Cardoza briefly argues that “[t]he ALJ [s]hould have found Mr. Cardoza disabled based
on the VE’s testimony.” Pl. Mem. 25. Cardoza’s argument seems to center on the VE’s
testimony that it would be unacceptable to be “off task” for more than “six minutes every hour”
or to “miss work more often than once a month.” Id. Cardoza argues that he would “exceed the
amount of time permitted to be off task and the allowed absences.” Id. at 26. To support this
argument, he notes that he was late to the ALJ hearing, missed some mental health
appointments, and testified that he sometimes becomes fatigued. He also notes that there are
records showing he was in pain. Id.
While he does not frame his argument in such terms, essentially his argument is that the
ALJ improperly failed to find that he would be unable to perform work regularly. We reject this
argument. The fact that Cardoza was late to the hearing, experienced pain, and missed some
appointments hardly required the ALJ to conclude that he would be late to or miss work on a
regular basis. As for his testimony about fatigue, the ALJ could properly rely on Dr. Massey’s
opinion that Cardoza “is able to . . . maintain a regular schedule.” R. 394; see R. 36.
IV. CONCLUSION
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For the foregoing reasons, Cardoza's motion for judgment on the pleadings (Docket# 13)
is granted and the Commissioner's motion for judgment on the pleadings (Docket# 21) is
denied. This case is remanded to the Commissioner for further proceedings consistent with this
opinion. The Clerk is requested to enter judgment.
SO ORDERED.
Dated: New York, New York
February 12, 2019
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