Newmark v. Kijakazi, Acting Commissioner of Social Security

Filing 17

OPINION & ORDER re: 13 MOTION for Judgment on the Pleadings . filed by Shira Newmark. Thus, this case is on all fours with Gutierrez and Aurilio. Therefore, due to the "failure to expressly consider all the effects of Plaintif f's fatiguethe case must be remanded for further proceedings." See Gutierrez, 2016 WL 3746884, at *5-6. For the foregoing reasons, Plaintiff's Motion (Dkt. No. 13) is GRANTED. This case is remanded to the Social Security Administration for further proceedings. The Clerk of the Court is respectfully requested to close the case. SO ORDERED. (Signed by Magistrate Judge Jennifer E. Willis on 3/26/2024) (rro) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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SHIRA NEWMARK,
Plaintiff,

OPINION & ORDER

-against-

22-cv-10280 (JW)

MARTIN O’MALLEY,
Acting Commissioner of Social Security,
Defendant.
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Jennifer E. Willis, United States Magistrate Judge:
Plaintiff Shira Newmark brings this action pursuant to 42 U.S.C. § 405(g) for
judicial review of the final decision of the Acting Commissioner of Social Security (the
“Commissioner”) denying her application for disability insurance benefits (“DIB”)
under Title II of the Social Security Act (“the Act”). For the reasons stated below,
Plaintiff’s motion is GRANTED.
BACKGROUND
A. Procedural History
On February 4, 2021, Plaintiff filed an application for DIB based on disability
as of December 2, 2018. See Social Security Administration (“SSA”) Administrative
Record (Dkt. No. 11) (hereinafter “R. ___”) at 14. Plaintiff alleges that her disabilities
are based on impairments including Lyme disease, depression, anxiety, and an
underactive thyroid. R. at 286. The claim was initially denied on April 30, 2021, R. at
14, and denied again upon reconsideration on August 9, 2021. Id.

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On February 23, 2022, Plaintiff had a hearing before ALJ Kieran McCormack
(the “ALJ”), which took place remotely due to the COVID-19 pandemic. R. at 14. In
a decision dated March 14, 2022, the ALJ denied Plaintiff’s claim, finding that
Plaintiff was not disabled under sections 216(i) and 223(d) of the Act. R. at 26. The
Appeals Council denied Plaintiff’s appeal on October 26, 2022. R. at 9.
Plaintiff subsequently commenced this action seeking remand of the ALJ
decision and raising three claims of error. Dkt. No. 14 (“Pl. Memo”) at 24. Plaintiff
argues that (i) the ALJ’s RFC analysis was not supported by substantial evidence, (ii)
the ALJ failed to properly evaluate opinion evidence, and (iii) the ALJ failed to
develop the record. See Pl. Memo.
B. Personal Background
Ms. Newmark was 40 years old on the alleged disability onset date (“AOD”). R.
at 267. Ms. Newmark has a master’s degree in special education. R. at 99. Her past
relevant employment includes working as a children’s tutor, preschool teacher,
elementary school teacher, and special education teacher. R. at 19, 287.
C. Plaintiff’s Relevant Medical History
Ms. Newmark’s AOD was December 2, 2018, and she has not had substantial
gainful employment since that date. R. at 10, 12. Ms. Newmark received numerous
treatments during the relevant period, including with (i) Dr. Lionel Bissoon, an
integrative health specialist, (ii) Dr. Bernard Raxlen, a Lyme disease specialist, (iii)
Dr. Kamau Kokayi, a family medicine specialist, (iv) Dr. Gabrielle Francis, a natural
medicine specialist, (v) Dr. Olivier Frankenberger, a cardiologist, (vi) Jenny Kaplan,

2

a licensed clinical social worker (“LCSW”), and (vii) Dr. Susan Pinco, a psychologist.
Pl. Memo at 5-8; R. at 291, 328, 421-425, 430-431, 450, 463-465, and 591-598. While
Ms. Newmark saw various physicians, Ms. Newmark’s papers note that the relevant
treating sources are primarily Dr. Raxlen and Dr. Francis. Pl. Memo at 8-9.
After filing for DIB in 2021, Ms. Newmark was evaluated by consultative
physicians, including: Dr. Rita Figueroa, who performed an internal medicine
consultative examination and Dr. Alison Murphy, who performed a consultative
psychiatric evaluation. R. at 452-456, 458-461. The agency also relied on Drs.
Hennessey and Fernandez as psychiatric consultants, and Drs. Ghandi and Siddiqui
for medical consultations. R. at 116-117, 136-137, 119-123, and 140-145. The relevant
treatments and opinions are recounted below.
a. Dr. Raxlen – Referral and Lyme Disease Treatment
From May 2019 to June 2019, Ms. Newmark saw Dr. Bissoon for symptoms
such as sinusitis, fatigue, cold intolerance, and hearing sensitivity. R. at 645-646.
After multiple rounds of tests, Dr. Bissoon referred Ms. Newmark to Dr. Bernard
Raxlen, a Lyme disease specialist, when her tests came back positive for Lyme
disease. R. at 328.
Ms. Newmark began receiving treatment from Dr. Raxlen in June 2019. R. at
450. Treatment records indicate that she saw Dr. Raxlen on several dates from June
2019 to June 2021. R. at 421-423; 474; 483-486. Ms. Newmark’s sessions with Dr.
Raxlen were a mix of in-person visits, as well as some phone and video consultations
due to the COVID-19 pandemic. Id.

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According to Dr. Raxlen’s notes, Ms. Newmark consistently complained of
motion sickness, severe fatigue, headaches, and occasional shortness of breath. R. at
424-425; 485-487. After the onset of the COVID-19 pandemic in 2020, Ms. Newmark
also reported to Dr. Raxlen that she experienced anxiety and depression, and felt like
she “need[ed] to move.” R. at 485.

By June 2021, Ms. Newmark reportedly

experienced other symptoms including brain fog, photo-sensitivity, skin sensitivity,
non-restorative sleep, trouble reading, intermittent light-headedness, weight gain,
and chronic headaches. R. at 421; 450; 474. However, Dr. Raxlen noted that she was
still able to engage in some physical activity, such as dancing and biking. R. at 474.
Dr. Raxlen provided medical source statements regarding Ms. Newmark in November
2020 and June 2021. R. at 348-353; 475-479.
In November 2020, Dr. Raxlen diagnosed Ms. Newmark with Lyme disease. R.
at 348. The November 2020 statement noted persistent fatigue. R. at 348. It stated
that Ms. Newmark could walk 10 blocks, but she could only sit, stand, and walk for a
total of two hours in an eight-hour day. R. at 351. The statement further indicated
that Ms. Newmark would need unscheduled breaks of 10 to 15 minutes every two
hours, and she could rarely lift up to 10 pounds. Id. Dr. Raxlen also noted that Ms.
Newmark’s condition interfered with her attention and concentration occasionally
(up to 1/3 of a workday), R. at 350, and the condition could cause Ms. Newmark to be
absent from work more than three times a month. R. at 352.
In June 2021, Dr. Raxlen identified that Ms. Newmark had both Epstein-Barr
virus and Lyme disease. R. at 475. Dr. Raxlen noted that Ms. Newmark’s symptoms

4

impacted her attention and concentration frequently (up to 2/3 of the day). R. at 477.
The June 2021 statement also indicated that Ms. Newmark was capable of low stress
jobs on a part time basis (two hours a week for the summer). R. at 478. Finally, Dr.
Raxlen concluded that Ms. Newmark was likely to be absent from work more than
three times a month. R. at 479.
b. Dr. Francis – Natural Medicinal Treatment and Notes
From November 2019 to June 2021, Ms. Newmark was treated by Dr. Gabrielle
Francis, a natural medicine specialist at the Herban Alchemist. R. at 590. While in
the care of Dr. Francis, Ms. Newmark received chiropractic care, medical massages,
cupping, acupuncture, and infrared sauna exposure to treat symptoms including
muscle pain, exhaustion, headaches, brain fog, and nausea. Id. Dr. Francis’s notes
indicated that Ms. Newmark “would not be able to engage in any work without the
flexibility to come to work late, leave early, miss time unpredictably and sit, stand
and move around throughout the day.” Id.
c. Other Treating Physicians
Between July 2019 and October 2019, Ms. Newmark saw Dr. Kokayi, who
noted that Plaintiff reported shortness of breath, fatigue and muscle weakness. R. at
463, 474. In April 2020, Ms. Newmark saw Dr. Frankenberger and reported chest
pain. R. at 430-434. Dr. Frankenberger recommended treatment with an antiinflammatory such as Motrin. R. at 431.
After filing for DIB on February 4, 2021, Ms. Newmark was assessed by
various consultative physicians.

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d. Dr. Figueroa - Internal Medicine Consultative Examination
On March 31, 2021, Dr. Rita Figueroa performed an internal medicine
consultative examination. R. at 458-461. Dr. Figueroa opined that Ms. Newmark
would have difficulty with “activities requiring moderate to severe exertion,” and Ms.
Newmark should avoid pulmonary irritants. R. at 461. Dr. Figueroa further noted
that Ms. Newmark appeared to be drained, and exhibited slow thinking and slow
reaction times. R. at 459. Finally, Dr. Figueroa stated that Ms. Newmark performed
exercises slowly, but had a normal gait and stance, and could walk and stand without
difficulty or assistive devices. R. at 459-460.
e. Drs. Gandhi and Siddiqui – Medical Consultations
On April 23, 2021, Dr. Gandhi issued a physical residual functional capacity
(“RFC”) assessment of Ms. Newmark. R. at 119-123. Dr. Gandhi found that with
normal breaks Ms. Newmark could stand, sit, or walk for a total of about six hours in
an eight hour day. R. at 120. Dr. Gandhi also noted that Ms. Newmark could
frequently lift and/or carry 10 pounds qualifying her for light work. R. at 18, 119-122.
The assessment noted that Ms. Newmark should avoid exposure to fumes, odors,
dust, gases, poor ventilation, and hazards. R. at 121. On July 21, 2021, Dr. Siddiqui
reported an RFC evaluation of Ms. Newmark. R. at 140-145. Dr. Siddiqui’s
assessment mirrored Dr. Gandhi’s findings that Ms. Newmark could sit/stand/walk
for six hours, carry 10 pounds frequently, and should avoid exposure to
environmental irritants. Id.

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a. Jenny Kaplan, LCSW and Dr. Susan Pinco, MSSW – Mental Health
Treatment
With respect to Plaintiff’s mental health, from June 2019 to April 2020, Ms.
Newmark saw Dr. Susan Pinco, at Integrative Psychotherapy LLC. R. at 291. Dr.
Pinco’s treatment notes are not included in the Record.
Ms. Newmark saw Jenny Kaplan, LCSW, from November 2020 through
February 2022. R. at 20. In February 2022, Kaplan diagnosed Ms. Newmark with
adjustment disorder with anxiety. R. at 618. Ms. Newmark reported to Kaplan that
chronic Lyme disease “made it difficult to work and increased her obsessive thoughts
about getting sicker and weaker[,]” along with compulsions around health and
hygiene. R. at 619.
b. Dr. Murphy – Psychiatric Evaluation
On March 11, 2021, Dr. Alison Murphy, PhD, performed a consultative
psychiatric evaluation of Ms. Newmark and issued an opinion. R. at 452-456. While
the mental status exam was normal, Dr. Murphy’s evaluation indicated some
limitations in Ms. Newmark’s capacity. Id. Dr. Murphy opined that Ms. Newmark
had moderate limitation in her ability to interact with others, sustain an ordinary
routine, and maintain regular attendance at work. R. at 14, 452-456. However, Dr.
Murphy also opined that Ms. Newmark had no limitations in her ability to
understand, remember, or apply complex instructions. R. at 454. Dr. Murphy further
found that Ms. Newmark’s attention, concentration, and memory skills were intact,
and she exhibited appropriate insight, judgment, and cognitive functioning. Id.

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c. Drs. Hennessey and Fernandez – Psychiatric Consultations
On March 29, 2021, Dr. Hennessey issued functional assessments of Ms.
Newmark based on the available record. R. at 116-117. Dr. Hennessy found that
Plaintiff’s mental impairments were non-severe. Id.

Subsequently, on August 21,

2021, Dr. Fernandez issued functional assessments of Ms. Newmark and also found
her mental impairments to be non-severe. R. at 136-137.
D. The Hearing
On February 23, 2022, Plaintiff appeared for a remote hearing before ALJ
Kieran McCormack. R. at 32. On the record during the hearing, Plaintiff’s thencounsel was asked whether the record was complete for the purpose of “enough
information to adjudicate the claim.” R. at 39. Plaintiff’s then-counsel responded, “I
do believe that the record is complete for that purpose and that the material that's
still outstanding would be contributory as cumulative more[]so than new earth -- for
lack of a better word -- earth-shattering information.” Id.
At the hearing, Margaret Heck testified as a vocational expert (“VE”). R. at
48, 54, 64, summary at 65.
a. Plaintiff’s Testimony
Plaintiff, at the time of the hearing, was 5’4” and weighed 188 pounds. R. at
286. Plaintiff was working one hour per day, five days a week as a one-on-one tutor
for children with special needs. R. at 67-70.
Plaintiff testified that she was bitten by a tick in July 2011, years before she
tested positive for Lyme disease in June 2019, and she had been living with symptoms
prior to her diagnosis. R. at 71-73. Regarding her physical symptoms, Plaintiff stated
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that she experienced chronic fatigue, inflamed joints and muscles, dizziness,
headaches and muscle aches, and a dry cough. R. at 75-77. When asked about her
ability to be active, Plaintiff responded that she couldn’t be active for long periods of
time, and she limited activities like driving or light errands to 15 minutes, R. at 78,
and she was able to walk her dog around the block twice a day. R. at 79. Plaintiff
further testified that she often experienced fatigued after tutoring and fell asleep
three or four times per day. R. at 71, 80.
Beyond these physical limitations, Plaintiff described experiencing brain fog,
haziness, and issues with concentration and memory. R. at 81, 85, 91. Plaintiff
testified that her brain fog and haziness were worse in the mornings. R. at 85. She
mentioned that concentration was difficult for her, and she needed breaks after about
30 minutes of trying to concentrate on paperwork due to fatigue. R. at 92. Plaintiff
testified that while her short term memory was “pretty good,” her long term memory
was “hazy.” R. at 91. With respect to her social life, Plaintiff stated that socialization
was exhausting, and her interactions were “very limited,” R. at 92.
At the time of the hearing, Plaintiff’s treatment consisted of thyroid
medication, CBD cream for the joint pain, and essential oils for the headaches. R. at
81-82, 85. Plaintiff noted that she had stopped taking antibiotics for Lyme disease
due to the side effects, R. at 96, and had switched from medical marijuana to treat
the chronic pain to hemp-based THC. R. at 94-95.

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b. VE Testimony
The ALJ asked the VE to classify Plaintiff’s past work, including as a children’s
tutor, preschool teacher, and elementary school teacher. R. at 19-20, 48, 54, 64-65.
The VE classified Plaintiff’s past jobs in the light and skilled range. Id.
The ALJ then posed the first hypothetical asking whether an individual could
perform Plaintiff’s past relevant work, inviting the VE to assume the hypothetical
individual could perform light work, but needed to limit exposure to airborne irritants
(fumes, odors, dust, gases, or smoke), unprotected heights, and machinery. R. at 100.
The VE responded that such a person could perform Plaintiff’s past work, as well as
alternate jobs including companion, gate guard, and front desk clerk. R. at 100-101.
Next, the ALJ asked the VE a second hypothetical, requiring the VE to add an
additional limitation of at least three absences each month to the first hypothetical.
R. at 101-102. The VE stated that in such hypothetical, an individual could not
perform Plaintiff’s past relevant work because employers generally tolerate one to
two unexcused absences monthly. R. at 102. The VE further opined that all
competitive work was precluded in the second hypothetical and the positions
identified in hypothetical one would not be viable. R. at 101-102. The VE noted that
the Dictionary of Occupational Titles did not include language regarding absences or
absenteeism, so the VE’s opinion with respect to hypothetical two was based upon her
professional knowledge and experience. R. at 102.
The VE further opined that an employer would tolerate a worker being off task
up to 15% of the workday, but was unlikely to allow a long unscheduled break. R. at
104. The VE testified that if an individual took cumulative breaks under 15% then
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competitive employment would not be eliminated, but if a person took an unscheduled
49-minute break during a seven hour day (~12%), it could be frowned upon and lead
to termination. R. at 104-105.
E. The ALJ’s Decision
The ALJ issued his decision on March 14, 2022, denying Plaintiff’s disability
claims. R. at 26. The ALJ found that based on the record, Plaintiff had not been
disabled within the meaning of the Act since the AOD. R. at 11.
At step one, the ALJ found that the Plaintiff had not engaged in substantial
gainful activity since the AOD on December 2, 2018. R. at 12.
At step two, the ALJ found that Plaintiff’s severe impairments were Lyme
Disease, underactive thyroid, and asthma. R. at 13. However, the ALJ found that
Plaintiff’s mental impairments were not severe. R. at 13, 15. With respect to
Plaintiff’s mental impairments, the ALJ found “mild limitation” in Plaintiff’s
functional ability to concentrate, persist, and maintain pace based on her testimony
about difficulty maintaining focus. R. at 13. The ALJ noted this limitation “appeared
related to reported fatigue.” Id. The ALJ also found a “mild limitation” around
adapting or managing oneself. Id. The ALJ noted Plaintiff’s excessive apprehension
and worry with respect to this limitation. Id. The ALJ found no limitations in
Plaintiff’s ability to understand, remember, and apply information or her ability to
interact with others. Id. The ALJ did note that plaintiff’s testimony about limited
socialization “appeared to be due to fatigue instead of mental disfunction.” Id. The
ALJ concluded that because Plaintiff’s mental impairments caused no more than

11

“mild” limitation, and the evidence did not indicate more than minimal limitations in
her ability to do basic work activities, the mental impairments were non-severe. Id.
At step three, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that meets or equals the severity under 20 C.F.R. 404,
Subpart P, Appendix 1. R. at 15.
At step four, the ALJ found that despite Plaintiff’s impairments, Plaintiff
retained the RFC to perform light work as defined in 20 C.F.R. 404.1567(b), except
that she needed to work without concentrated exposure to airborne irritants and
machinery. R. at 15.
In support of the findings at step four, the ALJ recounted that Plaintiff
experienced inflamed joints and muscles, chronic fatigue, dry cough, dizziness, and
headaches due to Lyme disease. R. at 16. The ALJ also noted that the underactive
thyroid caused fatigue and Plaintiff often needed to take naps during the day and
tried to limit activities to 15 minutes. Id. The ALJ then concluded that although
Plaintiff’s impairments could reasonably cause the alleged symptoms, the “intensity,
persistence[,] and limiting effects” of the symptoms were not shown to be disabling in
nature. Id.
The ALJ stated that consultative examiner Dr. Figueroa opined that Plaintiff
should avoid pulmonary irritants, and the ALJ found that opinion persuasive and
factored it into Plaintiff’s RFC determination. R. at 17-18. The ALJ recounted that
agency consultants Drs. Gandhi and Siddiqui also opined that Plaintiff was limited
to light work and should avoid exposure to hazards. R. at 18. The ALJ noted that Drs.

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Gandhi and Siddiqui’s opined limitations were consistent with Plaintiff’s testimony
regarding aches and fatigue, so the ALJ found those physicians persuasive and
factored their restrictions into the RFC assessment. Id.
With respect to Dr. Raxlen, the ALJ noted that Dr. Raxlen opined that Plaintiff
could rarely sit, stand, and walk two hours in an eight-hour workday, would need to
take unscheduled breaks, would need to avoid dust, and would be absent more than
three times a month. R. at 18. The ALJ did not find Dr. Raxlen’s opinions persuasive
because they “contained only laboratory reports and summaries of the [Plaintiff’s]
own reports,” rather than “objective clinical findings.” Id. The ALJ further noted that
Dr. Raxlen’s opinions were not consistent with the remainder of the record noting
normal gait, ability to walk without difficulty, and normal musculoskeletal
functioning. Id.
The ALJ similarly found that Dr. Francis’s opinions were not consistent with
the rest of the evidence and did not contain objective clinical findings, but only a
summary of Plaintiff’s accounts. R. at 18-19.
Finally, the ALJ noted that during the consultative examination in April 2021,
Plaintiff reported cooking twice per week, some cleaning, and laundry. R. at 19. The
ALJ reasoned that Plaintiff reported a “broad range of daily living activities
consistent with a capacity for light work.” Id.
At step five, the ALJ, relying on the VE testimony, found that a person of
Plaintiff’s background with her RFC could perform her past relevant work and other

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jobs. R. at 20-22. Therefore, the ALJ concluded that Plaintiff was not disabled within
the meaning of the Act. R. at 22.
LEGAL STANDARD
Standard of Review
In reviewing a final decision of the SSA, “[t]he district court must determine
whether the Commissioner’s final decision applied the correct legal standards and
whether the decision is supported by substantial evidence.” Intonato v. Colvin, No.
13-CV-3426 (JLC), 2014 WL 3893288, at *6 (S.D.N.Y. Aug. 7, 2014) (citing Butts v.
Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)). The reviewing court defers to the
Commissioner’s factual findings, which are considered conclusive if supported by
substantial evidence. See 42 U.S.C. § 405(g).
“Substantial evidence” is “more than a mere scintilla” and “means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009)
(internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)). “In determining whether the agency’s findings are supported by substantial
evidence, the reviewing court is required to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be drawn.”
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted). If
a reviewing court finds that there is substantial evidence supporting the
Commissioner’s decision, it must be upheld. See Perez v. Chater, 77 F.3d 41, 46 (2d
Cir. 1996).

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“On the basis of this review, the court may ‘enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without remanding the cause for a
rehearing.’” Intonato v. Colvin, 2014 WL 3893288, at *6 (quoting 42 U.S.C. § 405(g)).
“When there are gaps in the administrative record or the ALJ has applied an
improper legal standard,” or when the ALJ’s rationale is unclear, remand is
warranted “for further development of the evidence” or for an explanation of the ALJ’s
reasoning. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (internal quotations
omitted). Additionally, an ALJ’s “[f]ailure to apply the correct legal standard
constitutes reversible error, including, in certain circumstances, failure to adhere to
the applicable regulations.” Kohler v. Astrue, 546 F. 3d 260,265 (2d Cir. 2008)
(internal citations omitted).
Five-Step Sequential Evaluation Process
Under the Social Security Act, a claimant is disabled if they lack the ability “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). “An individual shall be determined to be under a disability
only if his physical or mental impairment or 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.” Id. at § 423(d)(2)(A).

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A claimant’s eligibility for disability benefits is evaluated pursuant to a fivestep sequential analysis:
1. The Commissioner considers whether the claimant is currently engaged in
substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a “severe
impairment” which limits his or her mental or physical ability to do basic
work activities.
3. If the claimant has a “severe impairment,” the Commissioner must ask
whether, based solely on medical evidence, claimant has an impairment
listed in Appendix 1 of the regulations. If the claimant has one of these
enumerated impairments, the Commissioner will automatically consider
him disabled, without considering vocational factors such as age, education,
and work experience.
4. If the impairment is not “listed” in the regulations, the Commissioner then
asks whether, despite the claimant's severe impairment, he or she has
residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner
then determines whether there is other work which the claimant could
perform. See Rolon v. Commissioner of Soc. Sec., 994 F. Supp. 2d 496, 503
(S.D.N.Y. 2014)(citing Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000)); see
also 20 C.F.R. §§ 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v).
The claimant bears the burden of proof as to the first four steps; then the
burden shifts to the Commissioner at step five. See Green-Younger v. Barnhart, 335
F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner determines whether
claimant can perform work that exists in significant numbers in the national
economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 20 C.F.R. §
404.1560(c)(2).
DISCUSSION
Plaintiff argues that the ALJ’s decision should be remanded because (i) the
ALJ failed to properly consider all appropriate limitations when formulating the
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RFC, (ii) the ALJ did not properly evaluate medical opinion evidence, and (iii) the
ALJ failed to develop the Record. Pl. Memo at 10-24. Defendant counters that
substantial evidence supports the ALJ’s RFC findings and the ALJ’s disability
determination, and the Record was adequately developed. Dkt. No. 15 (“Opp.”) at 1121. Because the Court finds reversible error, agreeing with Plaintiff’s first argument,
the Court declines to reach the other two arguments.
A. Whether the ALJ’s RFC Finding is Supported by Substantial
Evidence
Plaintiff does not contest the ALJ’s RFC finding of light work, but instead
argues that fatigue, and its effect on absenteeism, should be separately accounted for.
Id. at 14.
Defendant counters that the ALJ found Drs. Gandhi and Siddiqui persuasive
on the point that Plaintiff was capable of performing light work without off-task
limitations and that such light work would be sufficient to mitigate Plaintiff’s
limitations, including fatigue. R. at 18; Opp. at 26. Defendant further asserted that
the ALJ may “choose between properly submitted medical opinions,” as he did in this
case. Opp. at 27 (citing Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998)). Third,
Defendant argues that a failure to consider the effects of fatigue is “harmless error”.
Dkt. No. 15 at 26-27 (citing Collado v. Kijakazi, No. 22-CV-11112-JLC, 2022 WL
1960612, at *10 (S.D.N.Y. June 6, 2022)). Finally, Defendant argues that deference
is warranted where the ALJ resolves conflicting evidence under the substantial
evidence standard. Id. (citing Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998)).

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On balance, the Court agrees with Plaintiff that the ALJ failed to evaluate
Plaintiff’s chronic fatigue as a physical limitation in the RFC. Id. at 14-16. Three
cases support the assertion that the ALJ failed to properly consider fatigue in the
RFC.
First, in Gutierrez, the court found that the ALJ’s determination was not
supported by substantial evidence where the ALJ relied on the assessment of a doctor
who acknowledged that plaintiff’s fatigue resulted in “some physical limitations,” but
the ALJ did not “set forth with sufficient specificity” whether “those accepted
limitations” were “supported by substantial evidence.” See Gutierrez v. Colvin, No.
15 CIV. 3181 (RWS), 2016 WL 3746884, at *6 (S.D.N.Y. July 7, 2016). Because the
ALJ in Gutierrez determined the applicant was capable of medium work “in a
conclusory fashion without discussion,” the ALJ's conclusions were deemed
“unsupported by substantial evidence.” Gutierrez, 2016 WL 3746884, at *5. The court
there held “[w]hile the decision as to whether Plaintiff is precluded or capable of
particular work is reserved to the ALJ, the functional limitations must be directly
addressed. Failure to expressly consider all the effects of Plaintiff's fatigue
on Plaintiff's ability to work renders the analysis incomplete, and the case
must be remanded for further proceedings.” See Gutierrez, 2016 WL 3746884,
at *5-6 (emphasis added).
Second, a District of Vermont case notes the ALJ must “specifically address
limitations or conditions for which there is substantial record evidence.” Frank G. v.
Comm'r of Soc. Sec., No. 5:17-CV-103, 2019 WL 430887, at *5 (D. Vt. Feb. 4, 2019)

18

(quoting another source). In that case, the court remanded a decision where the ALJ
did not specifically address the plaintiff’s alleged problems with head and neck
movements.
Third is Aurilio v. Berryhill, No. 3:18-CV-00587 (MPS), 2019 WL 4438196, at
*9 (D. Conn. Sept. 16, 2019). Pl. Memo at 16. In that case, the court remanded an
action where the ALJ found that “the frequency and intensity of [plaintiff’s] exercise
regimen militate[d] against her allegations of fatigue and joint pain[,]” but there was
no evidence of the “intensity” of plaintiff’s exercise regimen in the record. Id. at *910. Moreover, the court found the ALJ failed to develop the record when he
improperly concluded that the applicant’s fatigue would not cause her “to be absent
from work four or more times per month” without any supporting evidence. Aurilio v.
Berryhill, No. 3:18-CV-00587 (MPS), 2019 WL 4438196, at *9 (D. Conn. Sept. 16,
2019).
Similar to Aurilio, Frank G., and Gutierrez, the RFC here did not consider all
the limitations resulting from fatigue even though fatigue is a typical symptom of
Lyme Disease, Epstein-Barr virus, and thyroid disorder. When a claimant asserts a
disability based on Lyme Disease, Epstein-Barr virus, or a thyroid disorder, the ALJ
should consider all the effects of fatigue.
Just like in Aurilio, the ALJ here did not fully account for the effect of fatigue
on absenteeism, and the conclusion that fatigue would cause her to be “off-task” no
more than “15% of the time” was without sufficient supporting evidence. Aurilio v.

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Berryhill, No. 3:18-CV-00587 (MPS), 2019 WL 4438196, at *9 (D. Conn. Sept. 16,
2019).
Defendant’s citation to Collado does not save the RFC. Dkt. No. 15 at 26-27.
Collado holds that it is harmless error to not specifically include a discussion
regarding off-task time and absences if, and only if, the substantial evidence in the
record already supports the ALJ’s conclusion that the claimant can maintain regular
attendance. Dkt. No. 15 at 26-27 (citing Collado v. Kijakazi, No. 22-CV-11112-JLC,
2022 WL 1960612, at *10 (S.D.N.Y. June 6, 2022)). Here, there is not enough in the
record to establish that a specific analysis of the effect of fatigue on absenteeism was
unnecessary. This failure to specifically discuss all the effects of fatigue dooms the
RFC.
Thus, this case is on all fours with Gutierrez and Aurilio. Therefore, due to the
“failure to expressly consider all the effects of Plaintiff's fatigue…the case must be
remanded for further proceedings.” See Gutierrez, 2016 WL 3746884, at *5-6.
For the foregoing reasons, Plaintiff’s Motion (Dkt. No. 13) is GRANTED. This
case is remanded to the Social Security Administration for further proceedings.
The Clerk of the Court is respectfully requested to close the case.
SO ORDERED.
DATED:

New York, New York
March 26, 2024
______________________________
JENNIFER E. WILLIS
United States Magistrate Judge

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