Monteith v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------- X

:

NICHOLE MICHELLE MONTEITH,

:

Plaintiff,

: MEMORANDUM

DECISION AND ORDER

– against – :

20-CV-01648 (AMD)

:

COMMISSIONER OF SOCIAL SECURITY,

:

Defendant. :

--------------------------------------------------------------- X

ANN M. DONNELLY, United States District Judge:

The plaintiff challenges the Social Security Commissioner’s decision that she was not

disabled for the purposes of receiving Social Security Disability Insurance (“SSDI”) under Title

II of the Social Security Act. For the reasons explained below, I grant the plaintiff’s motion for

judgment on the pleadings, deny the defendant’s cross-motion and remand the case for further

proceedings.

BACKGROUND

The plaintiff filed for disability insurance benefits on October 3, 2013, alleging disability

beginning on July 10, 2013 arising from a brain aneurysm she suffered that year. (Tr. 270-78.)

Her application was denied in January of 2014 for “failure or refusal to submit to consultative

examination.” (Tr. 250.) It does not appear that the plaintiff requested a hearing before an

Administrative Law Judge (“ALJ”) to challenge the decision.

The plaintiff filed for disability benefits again on August 27, 2015, for the same

conditions, this time alleging an onset date of October 5, 2014. (Tr. 280-89.) Her second

application was denied in December of 2015 after the Social Security Administration (“SSA”)

determined that her impairments were not severe enough to keep her from working. (Tr. 142-

47.) The plaintiff filed a timely request for a hearing on February 2, 2016. (Tr. 148-49.) She

appeared pro se before ALJ Ellen Parker Bush on February 13, 2018. (Tr. 81.) After ALJ Bush

explained the hearing procedure, the plaintiff decided to postpone the hearing so she could seek

legal representation. (Tr. 88-90.)

On December 19, 2018, the plaintiff appeared with counsel for a hearing before ALJ

Edward Malvey at which both she and a vocational expert (“VE”) testified. (Tr. 101-03.) At the

hearing, the plaintiff amended her onset date to August 30, 2017, because she returned to work

as a bus driver for the New York City Transit Authority in September of 2016.1 (Tr. 106-07.)

ALJ Malvey denied the plaintiff’s claim for benefits on January 15, 2019. (Tr. 22.) He

found that the plaintiff’s brain aneurysm, transient ischemic attack (“TIA”) and diabetes mellitus

were severe impairments that significantly limited her ability to perform basic work activities.

(Tr. 15-17.) However, he determined that her left eye and lower back issues were not severe.2

(Tr. 16.) ALJ Malvey found that the plaintiff’s combined impairments neither met nor medically

equaled the severity of the applicable listed impairments in 20 C.F.R. Part 404, Subpart P,

Appendix 1.3 (Tr. 17.) He found that “that the [plaintiff] has the residual functional capacity to

1 The plaintiff was terminated a year later, in August of 2017, for taking too much time off. (Tr. 111-12.)

2 The plaintiff’s problems with her lower back were documented in her medical records but not discussed

during the hearing.

3 A claimant whose impairments meet or medically equal a listed impairment in 20 C.F.R. Part 404,

Subpart P, Appendix 1, is presumed to be disabled and no further inquiry is needed. 20 C.F.R.

§§ 404.1520(d), 404.1526; see also Wetzel v. Berryhill, 783 F. App’x 44, 46 (2d Cir. 2019) (“For a

claimant to qualify for benefits by showing that [her] unlisted impairment, or combination of

impairments, is ‘equivalent’ to a listed impairment, [s]he must present medical findings equal in severity

to all the criteria for the one most similar listed impairment.” (quoting Sullivan v. Zebley, 493 U.S. 521,

531 (1990))). The ALJ evaluated the plaintiff’s impairments against listings 11.04, criteria for vascular

insult to brain, and 11.18, criteria for traumatic brain injury. (Tr. 17.)

perform medium work . . . except that [she] . . . cannot climb ladders ropes or scaffolds

[and] . . . should have no exposure to hazards such as unprotected heights and moving

machinery.” (Tr. 17.)

Ultimately, ALJ Malvey determined that “[t]he [plaintiff] is capable of performing past

relevant work as a Bus Driver” because “[it] does not require the performance of work-related

activities precluded by [her] residual functional capacity.” (Tr. 21.) Although he acknowledged

that the plaintiff’s medically determinable impairments “could reasonably be expected to cause

the alleged symptoms,” he found that their “intensity, persistence and limiting effects . . . [were]

not entirely consistent with the medical evidence and other evidence in the record.” (Tr. 18.)

The Appeals Council denied the plaintiff’s request for review on February 5, 2020. (Tr.

1.) She filed this action on April 1, 2020. (ECF No. 1.) Both parties have moved for a judgment

on the pleadings. (ECF No. 5, 18.)

STANDARD OF REVIEW

A district court reviewing the final decision of the Commissioner must “determine if

there is substantial evidence, considering the record as a whole, to support the Commissioner’s

decision and if the correct legal standards have been applied.” Moran v. Astrue, 569 F.3d 108,

112 (2d Cir. 2009) (quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)). The court must

uphold the Commissioner’s factual findings if there is substantial evidence in the record to

support them. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla” and

“means relevant evidence [that] a reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). However, the

court will not defer to the ALJ’s determination “[w]here an error of law has been made that

might have affected the disposition of the case.” Pollard v. Halter, 377 F.3d 183, 188-89 (2d

Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). Accordingly,

“[e]ven if the Commissioner’s decision is supported by substantial evidence, legal error alone

can be enough to overturn the ALJ’s decision.” Ellington v. Astrue, 641 F. Supp. 2d 322, 328

(S.D.N.Y. 2009) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).

A district court should remand if “the Commissioner has failed to provide a full and fair

hearing, to make explicit findings, or to have correctly applied the . . . regulations.” Manago v.

Barnhart, 321 F. Supp. 2d 559, 568 (E.D.N.Y. 2004). “An ALJ does not have to state on the

record every reason justifying a decision.” Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443,

448 (2d Cir. 2012). But “when the ALJ’s rationale is unclear in light of the record evidence,

remand to the Commissioner . . . for an explanation of the ALJ’s reasoning is warranted.”

Gonzales v. Comm’r of Soc. Sec., No. 16-CV-8445, 2017 WL 7310391, at *8 (S.D.N.Y. Dec. 21,

2017) (citing Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)).

DISCUSSION

The plaintiff claims that the ALJ did not give proper consideration to the effects of her

impairments in determining her residual functional capacity (“RFC”). (ECF No. 16 at 29-30.)

She also challenges the ALJ’s conclusion that her impairments did not prevent her from

performing her past work as a bus driver. (Id. at 35.) Finally, the plaintiff argues that the ALJ

did not properly apply the Treating Physician Rule and did not give appropriate consideration to

her subjective symptoms. (Id. at 37, 40.)

I. Residual Functional Capacity

a. Impairments

The plaintiff first challenges ALJ Malvey’s determination that her vision and lower back

impairments are not severe. (ECF No. 16 at 29-30.) “[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 ability to work.’” Rosario v. Apfel, No. 97-CV-5759, 1999

WL 294727, at *5 (E.D.N.Y. Mar. 19, 1999) (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n.12

(1987)); accord Winder v. Berryhill, 369 F. Supp. 3d 450, 456 (E.D.N.Y. 2019). Moreover, an

incorrect determination of severity is not grounds for remand if the ALJ considers the

impairment at issue in subsequent steps of the analysis. Williams v. Berryhill, No. 16-CV-5606,

2018 WL 4636962, at *18 (E.D.N.Y. Sept. 27, 2018) (“Courts have held that error . . . in

determining the severity of impairments is harmless if the ALJ finds at least one other severe

impairment and continues through the sequence of the disability analysis . . . .” (quoting Howard

v. Comm’r of Soc. Sec., 203 F. Supp. 3d 282, 297 (W.D.N.Y. 2016))); see also Reices-Colon v.

Astrue, 523 F. App’x 796, 798 (2d Cir. 2013) (“Because these conditions were considered during

the subsequent steps, any error was harmless.”).

The ALJ found that “the objective evidence of record does not support any deficits to

visual acuity or any light sensitivity alleged . . . [and] there is no evidence that [the plaintiff’s]

eye issues more than minimally limit [her] ability to perform basic work activities.” (Tr. 16.)

His conclusion is supported by the record. The records from the plaintiff’s ophthalmologist

suggest that she had chronic dryness and some abnormalities in her lenses. Her treating

physician, Dr. Yardley Shoulton, did not opine that these conditions affected the plaintiff’s

ability to work. (Tr. 1450-51, 1567-79, 1583-84.)

The ALJ also found there was no evidence that the plaintiff’s lower back pain “more than

minimally limits her ability to perform basic work activities.” (Tr. 16.) He acknowledged that

the plaintiff had been evaluated and treated for low back pain, including a “broad based left

foraminal disc herniation,” but found that “she improved over time, and by March 2017 . . . [and]

during the time period at issue . . . she did not report any significant low back pain.” (Tr. 16.)

The record does not fully support that conclusion. The plaintiff first reported back pain after a

sprain in August of 2015. (Tr. 692-94, 977-80.) She had an MRI in December of 2016, which

showed that she had a herniated disc and a pinched nerve. (Tr. 481, 519.) In March of 2017, the

plaintiff hurt her lower back again, and missed work. (Tr. 1038-42.) Later that month, the

plaintiff’s neurologist reported her back pain as “stable.” (Tr. 479.) However, in August of

2018, Dr. Shoulton saw the plaintiff for low back pain, a pinched nerve and abnormal gait, and

referred her to a neurologist for further testing and treatment. (Tr. 1585-89.) Given these

repeated instances of back pain, including instances occurring after 2017, remand is warranted

“because the ALJ’s rationale is unclear in light of the record evidence.” Gonzales, 2017 WL

7310391, at *8.

b. Consideration of Non-Severe Impairments

The plaintiff asserts that the ALJ did not properly account for her vision and lower back

impairments in his RFC assessment. (ECF No. 16 at 33-35.) In assessing RFC, the ALJ must

evaluate the “combined impact on a claimant’s ability to work, regardless of whether every

impairment is severe.” McIntyre v. Colvin, 758 F.3d 146, 151-52 (2d Cir. 2014) (quoting Dixon

v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995)). ALJ Malvey acknowledged that the plaintiff’s

“[n]on-severe impairments can . . . when considered in conjunction with one another and the

claimant’s severe impairments, affect her residual functional capacity,” and that “any effect that

the claimant’s non-severe impairments would have on her ability to function have been

considered when formulating the residual functional capacity.” (Tr. 16-17.)

Although the plaintiff contends that the ALJ “fail[ed] to include any visual limitations at

all,” (ECF No. 16 at 34), the ALJ specifically addressed the plaintiff’s visual impairments in his

RFC determination. He found that her testimony “was not consistent with the evidence of the

record, as there are no significant findings or complaints for . . . vision loss.” (Tr. 20.) He

concluded that “[w]hile these symptoms may support some limitations from hazards and heights,

the objective evidence does not support greater limitations than those [resulting from her brain

aneurysm, TIA and diabetes mellitus].” (Tr. 20.)

There is, however, merit to the plaintiff’s claim that the ALJ did not account for her back

pain. While the ALJ cited the observation in the neurologist’s treatment notes that there was “an

exacerbation of back pain when [the plaintiff was] walking her dog” in March of 2017, he does

not appear to have considered her lower back pain in determining her RFC. (Tr. 19.) “[T]he

ALJ is required to consider all of plaintiff’s impairments regardless of their severity.” Johnston

v. Astrue, No. 07-CV-5089, 2008 WL 4224059, at *9 (E.D.N.Y. Sept. 8, 2008) (citing 20 C.F.R.

§ 404.1545(a)(2)) (emphasis added). The failure to take those limitations into account in the

RFC determination is grounds for remand. See Parker-Grose v. Astrue, 462 F. App’x 16, 18 (2d

Cir. 2012) (holding that the ALJ committed legal error by not accounting for the plaintiff’s non-

severe impairments).

II. Step Four Determination

Next, the plaintiff takes issue with ALJ Malvey’s reliance on the VE’s determination that

she could perform her past work as a bus driver. The plaintiff says that the VE’s conclusion was

wrong, and that the ALJ should not have accepted it. (ECF No. 16 at 35-36.) According to the

plaintiff, “the ALJ’s Step Four finding is clearly inconsistent with the requirements of this

occupation, as actually and generally performed,” and therefore “the ALJ’s determination that

[she] could return to her past work is misplaced.” (Id. at 37-37.) The plaintiff argues that the

ALJ’s finding that “[s]he should have no exposure to hazards such as unprotected heights and

moving machinery” is at odds with the descriptions for “bus driver” in the Department of

Labor’s Dictionary of Occupational Titles (“DOT”) and Occupational Information Network

(“O*NET”), respectively.4 (Tr. 17; ECF No. 16 at 35-36.)

The defendant argues that according to the DOT, “moving mechanical parts” are “not

present” in a bus driver’s job; therefore, the defendant maintains, the ALJ’s finding was not

inconsistent with the DOT’s requirements.5 (ECF No. 18 at 19 (citing DOT 913.463-010, 1991

WL 6878230).) It is true that the DOT’s bus driver definition does not include moving

mechanical parts. Nevertheless, the ALJ’s finding that the plaintiff should have “no exposure to

hazards such as . . . moving machinery,” (Tr. 17), does not appear to be consistent with the

plaintiff’s job as it was actually performed. After all, the plaintiff drove a large bus and operated

an automatic wheelchair lift, and was thus exposed to moving machinery and moving mechanical

parts. Given this inconsistency, remand is appropriate so that the ALJ can clarify the rationale

for his decision. Gravel v. Barnhart, 360 F. Supp. 2d 442, 453 (N.D.N.Y. 2005) (“Remand is

particularly appropriate where further findings or explanation will clarify the rationale for the

ALJ’s decision.” (citing Pratts, 94 F.3d at 39)); see also Cichocki v. Astrue, 729 F.3d 172, 177

(2d Cir. 2013) (“Remand may be appropriate, however, where an ALJ fails to assess a claimant’s

4 The plaintiff emphasizes that, according to the DOT, a bus driver “[m]ay make repairs and change

tires[,] . . . inspect [the] the bus and check gas, oil, and water before departure . . . [and] drive . . . [the]

bus to transport passengers . . . .” (ECF No. 16 at 35 (citing DOT 913.463-010).)

5 “Unlike the DOT, O*NET does not appear in the Social Security Rulings as an approved source nor one

with which the VE’s testimony must be consistent.” Dennison v. Berryhill, No. 17-CV-1059, 2019 WL

2088506, at *9 (W.D.N.Y. May 13, 2019). Although O*NET is more current, “[i]n the Second

Circuit . . . it is well settled that ‘the DOT, despite not having been updated in more than [twenty-five]

years, remains an accepted basis for vocational opinion . . . .’” Johnson v. Saul, No. 3:19-CV-01222,

2020 WL 6562402, at *11 (D. Conn. Nov. 9, 2020) (quoting Strong v. Berryhill, No. 17-CV-1286, 2019

WL 2442147, at *6 (W.D.N.Y. June 12, 2019)). “Even if the VE’s testimony was in conflict with

O*Net [sic], there is no requirement that . . . [it] comply with that database.” Ryan v. Astrue, 650 F.

Supp. 2d 207, 218 (N.D.N.Y. 2009).

capacity to perform relevant functions, despite contradictory evidence in the record, or where

other inadequacies in the ALJ’s analysis frustrate meaningful review.”).6

III. Treating Physician Rule

Dr. Shoulton began treating the plaintiff in January of 2013 and continued to treat her on

a regular basis after her aneurysm surgery, from July 22, 2013 to December 14, 2018, for

symptoms including dizziness, left-side numbness and weakness. (Tr. 962-93, 1076-1150, 1229-

1326, 1538-39.) In an assessment from November of 2015, Dr. Shoulton stated that the plaintiff

was not medically fit to perform her current occupation or any other work because of a vestibular

imbalance and maxillary mass. (Tr. 1538.) In December of 2018, the month of the hearing, Dr.

Shoulton opined that the plaintiff’s symptoms were severe enough to interfere significantly with

her ability to concentrate, left her incapable of even “low stress” work and would likely result in

more than three absences each month. (Tr. 1580-84.) The state agency medical consultant did

not treat or even examine the plaintiff. Rather, he “reviewed the record and opined that [she]

could lift up to 50 pounds occasionally, stand, walk, and sit up to six hours each in a normal

workday, and that the [plaintiff] should avoid climbing ladders, ropes, and scaffolds, and avoid

hazards.” (Tr. 25.)

In determining that the plaintiff had the residual functional capacity to perform her past

relevant work as a bus driver, ALJ Malvey gave “great weight” to the state agency medical

consultant’s opinion, and “less weight” to that of Dr. Shoulton, finding that Dr. Shoulton’s

opinion was not consistent with or supported by medical evidence. (Tr. 20-21.) The ALJ

explained that he gave “little weight” to Dr. Shoulton’s 2018 opinion because it “provided no

6 On remand, the ALJ should also consider the plaintiff’s testimony that she occasionally had to

“manually” lift the wheelchair ramp, in light of her physical impairments. (Tr. 109.)

explanation as to [the plaintiff’s] environmental limitations or why she would be absent at least

three times per month.” (Tr. 20-21.) The ALJ further noted that “Dr. Shoulton’s treatment notes

during the period at issue do not support chronic issues with vertigo or dizziness . . . [and her]

physical examinations also show largely normal findings, with no neurologic deficits.” (Tr. 21.)

He determined that Dr. Shoulton’s 2015 assessment of the plaintiff was of “little value because it

[was] issued well before August 2017 and [does not] consider the claimant’s functional capacity

during the time at issue.” (Tr. 21.)

The “treating physician” rule requires that the ALJ give “controlling weight” to a treating

physician’s opinion of the nature and severity of the claimant’s impairment if it “is well-

supported by medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in [the] case record.”7 Burgess v. Astrue, 537

F.3d 117, 128 (2d Cir. 2008) (citing 20 C.F.R. § 404.1527(d)(2)). “‘[M]edically acceptable

clinical and laboratory diagnostic techniques’ include consideration of ‘[a] patient’s report of

complaints, or history, [a]s an essential diagnostic tool.’” Id. (quoting Green-Younger v.

Barnhart, 335 F.3d 99, 107 (2d Cir. 2003)).

When the ALJ does not give a treating physician’s opinion controlling weight, “the ALJ

must ‘comprehensively set forth [his] reasons for the weight assigned to a treating physician’s

opinion.’” Id. at 129 (quoting Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004)). Failure to

provide “good reasons” for the weight assigned to a treating physician’s opinion is grounds for

remand. Halloran, 362 F.3d at 33. The Second Circuit has held that to “override” a treating

physician’s opinion, “the ALJ must explicitly consider . . . (1) the frequency, length, nature, and

7 The treating physician rule applies here because the plaintiff filed her claim before March 27, 2017. See

20 C.F.R. § 404.1527.

extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the

consistency of the opinion with the remaining medical evidence; and (4) whether the physician is

a specialist.” Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (citing Burgess, 537 F.3d at

129); accord 20 C.F.R § 404.1527(c).

The ALJ did not consider the plaintiff’s longstanding relationship with Dr. Shoulton in

weighing her opinion.8 The defendant argues that the ALJ “briefly alluded to” this factor

“[e]arly in his decision” by “correctly characterize[ing] Dr. Shoulton as Plaintiff’s ‘primary care

provider.’” (ECF No. 18 at 21.) However, that passing reference does not provide the explicit

consideration required by the treating physician rule. Selian, 708 F.3d at 418.

The defendant also argues that the ALJ was correct to discount Dr. Shoulton’s opinion

because it “was not well-supported . . . [and] not consistent with other evidence in the record.”

(ECF No. 18 at 21-22.) The ALJ decided that Dr. Shoulton’s treatment notes and physical

examinations did not comport with her statements about the plaintiff’s capacity to work because

they “show largely normal findings” and there were no complaints of “loss of sensation,

dizziness, or poor balance.” (Tr. 20-21.) However, by determining that Dr. Shoulton’s records

were not internally consistent with her statements about the plaintiff’s capacity to work, the ALJ

improperly substituted his own view of the medical evidence for Dr. Shoulton’s opinion. Greek

v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (“The ALJ is not permitted to substitute his own

expertise or view of the medical proof for the treating physician’s opinion or for any competent

medical opinion.” (citing Snell v. Apfel, 177 F.3d 128, 131 (2d Cir. 1999))). “If the ALJ is not

8 “Generally, the longer a treating source has treated you and the more times you have been seen by a

treating source, the more weight we will give to the source’s medical opinion.” 20 C.F.R.

§ 404.1527(c)(2)(i).

able to fully credit a treating physician’s opinion because the medical records from the physician

are incomplete or do not contain detailed support for the opinions expressed, the ALJ is obligated

to request such missing information from the physician.” Calzada v. Astrue, 753 F. Supp. 2d

250, 277 (S.D.N.Y. 2010) (citing Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)); see also Shaw

v. Chater, 221 F.3d 126, 134 (2d Cir. 2000) (“For the ALJ to conclude that plaintiff presented no

evidence of disability at the relevant time period, yet to simultaneously discount the medical

opinion of [her] treating physician, violates his duty to develop the factual record . . . .”).

Under these circumstances, the ALJ’s reliance on the state agency medical consultant’s

opinion was error. See Estrella v. Berryhill, 925 F.3d 90, 98 (2d Cir. 2019) (“We have

frequently ‘cautioned that ALJs should not rely heavily on the findings of consultative

physicians after a single examination.’” (quoting Selian, 708 F.3d at 419)); Ridge v. Berryhill,

294 F. Supp. 3d 33, 61 (E.D.N.Y. 2018) (“[T]he written reports of medical advisors who have

not personally examined the claimant deserve little weight in the overall evaluation of

disability.” (quoting Vargas v. Sullivan, 898 F.2d 293, 295-96 (2d Cir. 1990))). Remand is

appropriate so that the ALJ can reassess the plaintiff’s RFC. If necessary, the ALJ should solicit

additional information from Dr. Shoulton regarding the plaintiff’s capacity to work and how the

plaintiff’s symptoms might influence her ability to perform certain tasks.9

9 “[T]he ALJ has an obligation ‘to recontact a treating physician for clarification if the treating

physician’s opinion is unclear[;]’ [s]uch a duty is linked to the ALJ’s affirmative obligation to develop

the record.” Maneri v. Berryhill, No. 17-CV-0322, 2018 WL 9988735, at *12 (E.D.N.Y. Aug. 29, 2018)

(quoting McAllister v. Colvin, 205 F. Supp. 3d 314, 331 (E.D.N.Y. 2016) (citing Burgess, 537 F.3d at

129)); see also Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) (“[E]ven if the clinical findings were

inadequate, it [is] the ALJ’s duty to seek additional information from [the treating physician] . . . .”).

This obligation exists regardless of whether the claimant is represented by counsel at the hearing. Rosa

v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).

IV. Evaluation of Subjective Symptoms

ALJ Malvey concluded that although the plaintiff’s medically determinable impairments

“could reasonably be expected to cause the alleged symptoms . . . [her] statements concerning

the intensity, persistence and limiting effects of these symptoms are not entirely consistent with

the medical evidence and other evidence in the record.” (Tr. 18.) The plaintiff argues that ALJ

Malvey relied on pre-onset evidence to evaluate her subjective symptoms, which was “internally

inconsistent,” and that his “reliance on [her] minimal activities as a means to show that she was

not disabled [was] improper.” (ECF No. 16 at 40-41.)

If a plaintiff’s allegations are not supported by “objective medical evidence, the ALJ

must engage in [an evaluation of subjective symptoms].” Meadors v. Astrue, 370 F. App’x 179,

183 (2d Cir. 2010). However, the ALJ “is not required to accept the claimant’s subjective

complaints without question.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). Specifically, in

evaluating subjective symptoms, the ALJ must consider “(1) the claimant’s daily activities; (2)

the location, duration, frequency, and intensity of [the] claimant’s pain and other symptoms; (3)

precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any

medication the claimant takes or has taken to alleviate pain or other symptoms; (5) any

treatment, other than medication, the claimant has received; (6) any other measures the claimant

employs to relieve pain or other symptoms; and (7) other factors concerning the claimant’s

functional limitations and restrictions as a result of pain or other symptoms.” Gallagher v.

Colvin, 243 F. Supp. 3d 299, 306-07 (E.D.N.Y. 2017) (citing 20 C.F.R. §§ 404.1529(c)(3)(i)-

(vii), 416.929(c)(3)).

ALJ Malvey acknowledged his duty to “evaluate the intensity, persistence, and limiting

effects of the claimant’s symptoms to determine the extent to which they limit [her] functional

limitations,” and, if lacking objective medical evidence, “consider other evidence in the record to

determine if [her] symptoms limit the ability to do work-related activities.” (Tr. 17-18.)

However, he did not discuss the plaintiff’s account of the causes of her symptoms,10 explain how

he balanced the various credibility factors or specify the extent to which he credited the

plaintiff’s testimony other than to deem it inconsistent with objective medical evidence. (Tr. 18-

20.) These omissions are grounds for remand. See Kane v. Astrue, 942 F. Supp. 2d 301, 314

(E.D.N.Y. 2013) (finding legal error when the ALJ did not explicitly refer to or discuss any of

the credibility factors) (collecting cases).

CONCLUSION

The plaintiff’s motion for judgment on the pleadings is granted, the defendant’s motion is

denied, and the case is remanded for further proceedings consistent with this opinion.

SO ORDERED.

s/Ann M. Donnelly

____________________________

ANN M. DONNELLY

United States District Judge

Dated: Brooklyn, New York

July 9, 2021

10 For example, the plaintiff testified that she could walk “maybe a block or two, but . . . there’ll be

resting,” that she has to be careful bending down because “any sudden movements . . . throws [her] into

the dizziness” and that she could kneel or squat down without getting dizzy if she moved “carefully, but

getting up is the problem” because if she “move[s] quickly, it’s a problem.” (Tr. 118-19.)