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Dziamalek v. Saul

United States District Court, D. Connecticut

September 3, 2019

MARK DZIAMALEK, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS

          Stefan R. Underhill United States District Judge.

         In this Social Security appeal, Mark Dziamalek moves to reverse the decision by the Social Security Administration (“SSA”) denying his claim for disability insurance benefits or, in the alternative, to remand the case for an additional hearing. Mot. to Reverse, Doc. No. 23. The Commissioner of the Social Security Administration[1] (“Commissioner”) moves to affirm the decision. Mot. to Affirm, Doc. No. 24. For the reasons set forth below, Dziamalek's Motion to Reverse (doc. no. 23) is DENIED and the Commissioners Motion to Affirm (doc. no. 24) is GRANTED.

         I. Standard of Review

         The SSA follows a five-step process to evaluate disability claims. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam). First, the Commissioner determines whether the claimant currently engages in “substantial gainful activity.” Greek v. Colvin, 802 F.3d 370, 373 n.2 (2d Cir. 2015) (per curiam) (citing 20 C.F.R. § 404.1520(b)). Second, if the claimant is not working, the Commissioner determines whether the claimant has a “‘severe' impairment, ” i.e., an impairment that limits his or her ability to do work-related activities (physical or mental). Id. (citing 20 C.F.R. §§ 404.1520(c), 404.1521). Third, if the claimant does not have a severe impairment, the Commissioner determines whether the impairment is considered “per se disabling” under SSA regulations. Id. (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). If the impairment is not per se disabling, then, before proceeding to step four, the Commissioner determines the claimant's “residual functional capacity” based on “all the relevant medical and other evidence of record.” Id. (citing 20 C.F.R. §§ 404.1520(a)(4), (e), 404.1545(a)). “Residual functional capacity” is defined as “what the claimant can still do despite the limitations imposed by his [or her] impairment.” Id. Fourth, the Commissioner decides whether the claimant's residual functional capacity allows him or her to return to “past relevant work.” Id. (citing 20 C.F.R. §§ 404.1520(e), (f), 404.1560(b)). Fifth, if the claimant cannot perform past relevant work, the Commissioner determines, “based on the claimant's residual functional capacity, ” whether the claimant can do “other work existing in significant numbers in the national economy.” Id. (citing 20 C.F.R. §§ 404.1520(g), 404.1560(b)). The process is “sequential, ” meaning that a petitioner will be judged disabled only if he or she satisfies all five criteria. See id.

         The claimant bears the ultimate burden to prove that he or she was disabled “throughout the period for which benefits are sought, ” as well as the burden of proof in the first four steps of the inquiry. Id. at 374 (citing 20 C.F.R. § 404.1512(a)); Selian, 708 F.3d at 418. If the claimant passes the first four steps, however, there is a “limited burden shift” to the Commissioner at step five. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam). At step five, the Commissioner need only show that “there is work in the national economy that the claimant can do; he [or she] need not provide additional evidence of the claimant's residual functional capacity.” Id.

         In reviewing a decision by the Commissioner, I conduct a “plenary review” of the administrative record but do not decide de novo whether a claimant is disabled. Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam); see Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam) (“[T]he reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.”). I may reverse the Commissioner's decision “only if it is based upon legal error or if the factual findings are not supported by substantial evidence in the record as a whole.” Greek, 802 F.3d at 374-75. The “substantial evidence” standard is “very deferential, ” but it requires “more than a mere scintilla.” Brault, 683 F.3d at 447-48. Rather, substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Greek, 802 F.3d at 375. Unless the Commissioner relied on an incorrect interpretation of the law, “[i]f there is substantial evidence to support the determination, it must be upheld.” Selian, 708 F.3d at 417.

         II. Facts

         Dziamalek filed for Social Security benefits on October 21, 2013. App. for Benefits, Ex. 1D, R. at 260. In his application, Dziamalek alleged a period of disability beginning April 1, 2010. Id. at 261. Dziamalek alleged in his application that he suffered from mental illness; curved spine; arthritis in arms, hands, and legs; lumps in lungs; and right bundle blockage of heart. Int'l Disability Determination Explanation, Ex. 2A, R. at 126. As discussed more fully below, Dziamalek's application was denied at each level of review, and he seeks an order reversing the Commissioner's decision.

         A. Medical History

         The relevant time period for Dziamalek's medical history is April 1, 2010, the alleged disability onset date, to December 31, 2015, the date last insured. Just before the alleged onset date, on March 15, 2010, Dziamalek was seen at the cardiology department at HeartCare Associates, LLC, and treatment notes reflect that he had no swelling or pain in extremities, but had shortness of breath. Ex. 2F, R. at 451. Treatment notes from the same provider similarly reflected no swelling or pain in extremities on September 20, 2010, but no shortness of breath. Ex. 2F, R. at 448. Dziamalek was hospitalized at Yale New Haven on February 16, 2011 for a Tylenol overdose, in which he took roughly 180 pills. Ex. 13F, R. at 763. He was released on February 18, 2011. Id. On March 14, 2011, treatment notes from HeartCare Associates, LLC again reflected that he had no swelling or pain in his extremities and no shortness of breath. Ex. 2F, R. at 449.

         On August 8, 2011, Dziamalek underwent an exercise stress test, which was terminated after eleven minutes and one second for shortness of breath. Ex. 2F, R. at 453. Treatment notes reflect that Dziamalek had no arrythmias and had “[v]ery good exercise capacity.” Id. On August 26, 2011, Dziamalek underwent a pulmonary function test with Dr. Michael Imevbore at Connecticut Pulmonary Specialists, PC, which showed that his Forced Vital Capacity (“FVC”) was “mildly reduced”, but that his total lung capacity was normal. Ex. 3F, R. at 485. On the same day, Dr. Imevbore noted that Dziamalek was a “pleasant gentleman with multiple lung nodules and active nicotine addiction” as well as Chronic Obstructive Pulmonary Disorder (“COPD”). Ex. 3F, R. at 491-92. Dziamalek reported “progressive shortness of breath” and a physical examination revealed “reduced air entry bilaterally.” Id. On September 12, 2011, Dziamalek underwent a CT Scan of his chest for a follow up on “lung nodules, ” which revealed “tiny” nodules that were “most likely benign.” Ex. 13F, R. at 760. HeartCare Associates treatment notes from July 23, 2012 again reflected no swelling or pain in Dziamalek's extremities nor shortness of breath. Ex. 2F, R. at 447.

         On November 5, 2012, Dziamalek returned to BH Care, Inc. “for an evaluation in order to ‘please' the courts” because he was on probation for two charges of breach of peace stemming from an argument with his fiancé's son. Ex. 4F, R. at 493. Treatment notes reflect that Dziamalek had been unemployed since 2010, and had drug possession charges from 2009 and one from 10-15 years prior. Id. On January 28, 2013, Dziamalek returned to Heartcare Associates for a transthoracic echocardiogram. Ex. 2F, R. at 473. The report from that procedure and treatment notes revealed an abnormal electrocardiogram, right bundle branch block, essential hypertension, and hyperlipidemia. Id.; see also Ex. 2F, R. at 436. On March 14, 2013, Dziamalek went to Yale New Haven Hospital for shortness of breath and a cough. Ex. 1F, R. at 423. Treatment records reflect that Dziamalek had no swelling in his lower extremities, but had “blood-tinged sputum” most likely due to bronchitis. Ex. 1F, R. at 424. Outpatient treatment care was continued and Dziamalek was prescribed pain medication as needed. Id. Progress notes from Dr. D'Aria from April 9, April 30, and May 23, 2013 reflect that Dziamalek had normal gait and no leg swelling. Ex. 1F, R. at 329, 331, 333. HeartCare Associates treatment notes from April 18 and May 20, 2013 further reflect no swelling in Dziamalek's lower extremities. Ex. 2F, R. at 438, 441.

         Dziamalek was sent by the police to the hospital via ambulance on June 12, 2013 because he was found with alcohol and cocaine, and was “aggressive, agitated, and want[ed] to fight.” Ex. 1F, R. at 420. He was given a toxicology screening, which was positive for both alcohol and cocaine, and discharged. Id. Progress notes from Dr. D'Aria from September 6, 2013 reflect that Dziamalek complained of shoulder pain, and was given pain medication, but had normal gait and no leg swelling. Ex. 1F, R. at 327-28. Dziamalek was seen by Dr. D'Aria again on September 16, 2013 and treatment notes make no mention of shoulder pain. Id. at 325. On September 20, 2013, Dziamalek underwent an x-ray on his left foot which showed “[m]oderate degenerative changes” when compared to 2010. Ex. 13F, R. at 785. Shortly thereafter, on September 30, 2013, Dziamalek presented to HeartCare Associates with palpitations. Ex. 1F, R. at 417. Treatment notes from that visit reflect that Dziamalek had completed alcohol rehabilitation and was sober. Id. Further, notes reflect that he had no lower extremity swelling. Ex. 1F, R. at 418; see also Ex. 2F, R. at 440. Providers discussed Dziamalek's nutrition and healthier daily habits, provided him with medication, and discharged him. Ex. 1F, R. at 418-19.

         On October 4, 2013, Dziamalek underwent a chest CT scan which revealed “new scattered subtle [lung] nodules” and COPD. Ex. 3F, R. at 481. On October 7, 2013, treatment notes from BH Care, revealed “unremarkable” thought process and content, orientation, and energy. Ex. 4F, R. at 504. Further, notes reflect that Dziamalek was “irritable” but “cooperative” and “attentive”, and had minimally impaired judgment and insight and was making progress in his sobriety. Id. On October 11, 2013, Dziamalek was described by Dr. Imevbore as a “pleasant active smoker with COPD and lung nodules.” Ex. 1F, R. at 396. A pulmonary function test revealed worsening airflow limitation. Id.

         On October 20, 2013, Dziamalek was again sent to the hospital by the police via ambulance because he was using drugs (heroin and cocaine) and drinking at home and his family feared that he was suicidal. Ex. 1F, R. at 414. Treatment records reveal that Dziamalek had no leg swelling, no edema, no swelling or deformity in his right shoulder, and normal range of motion. Ex. 10F, R. at 549. He did complain of right elbow pain because he was struck with a crowbar in an altercation. Id.; see also Ex. 1F, R. at 411. Dziamalek was evaluated as anxious and agitated, with impulsivity and inappropriate judgment, but without homicidal or suicidal ideations. Ex. 10F, R. at 549. He was released that day but returned to the emergency room on October 31, 2013 after a suicide attempt via drug overdose. Ex. 1F, R. at 406. He was released and was seen again on November 3, 2013 for right lower arm pain, but tests revealed no acute fracture. Ex. 1F, R. at 400.

         Dziamalek was hospitalized on November 6, 2013 for substance abuse, altered mental state (likely due to alcohol withdrawal), unsteadiness, COPD, abnormal chest CT scan, and left wrist pain. Ex. 10F, R. at 648. Treatment notes from that time frame reflect that Dziamalek also had shoulder pain, left wrist pain, and finger numbness resulting from the restraints needed for evaluation because he was “aggressive and combative.” Id. at 649. A hand and wrist x-ray were normal and showed “no acute fracture or dislocation”, and notes reflect that “a full neurological exam was inconsistent” because Dziamalek was seen “walking briskly and performing fine motor tasks with excellent coordination” but, during testing, “his grip strength [was] weak and coordination [was] off balance.” Id. Further, Dziamalek had “good balance and coordination with standing” but walked to the door with “slow gait and into hallway”. Id. at 650. Treatment notes also reflect that he had “poor short term memory.” Id. On November 11, he underwent an x-ray on his left shoulder which showed “no acute fracture or dislocation” and joints that were “well-maintained” and “intact.” Ex. 13F, R. at 786. He was released from the hospital on November 13, 2013. Ex. 10F, R. at 648. He returned to the emergency room on November 15 and was “confused” with slurred speech and complaining of left ear pain. Ex. 10F, R. at 613, 617. His family reported they thought Dziamalek took too much Valium. Id. at 617. After a few hours, Dziamalek was “completely conversant, interactive, and alert and oriented with steady gait and speech.” Id. at 615.

         Dziamalek was hospitalized at Yale New Haven Psychiatric Hospital on November 20, 2013 after he cut his left wrist in a suicide attempt. Ex. 1F, R. at 342. He sustained lacerations to his ulnar nerve and artery and his flexor carpi ulnaris and palmaris longus tendons. Ex. 10F, R. at 668. He underwent surgery to repair the lacerations and “tolerated the procedure well” and had no complications. Id. He was given pain medication and discharged back to the psychiatric hospital on November 25, 2013. Ex. 1F, R. at 360. Treatment notes reflect that Dziamalek reported that his change in medication caused his suicidal ideations. Id. at 361. He was given a hand splint and notes reflect that, upon discharge from the hospital, his wrist and fingers flexed and extended, but he had no sensation over his small finger, and diminished feeling over his ring finger. Id. at 362. He was discharged on November 28, 2013. Id. at 360.

         On December 4, 2013, Dziamalek was seen at Yale New Haven Hospital for a post-operation evaluation where notes reflect that he was “doing well” and was “able to make a fist easily”, but had “no sensation in [his] small finger” and “decreased sensation” in his fourth finger. Ex. 6F, R. at 517, 519. Treatment notes report that the wound was “healing well” and Dziamalek was given an “anticlaw splint” to wear at night, a wrist brace to protect the wound, and referred to occupational therapy. Id. at 519. He returned to BH Care on December 4, 2013 and reported “feeling significantly better” after his hospitalization. Ex. 11F, R. at 722.

         On December 16, 2013, Dziamalek began occupational therapy for his hand. Ex. 10F, R. at 678. Progress notes reflect that he disliked the night splint and was wearing the hand splint full time and had “no edema in [his] digits.” Id. at 679. He put in “fair” effort, could manipulate common objects, “[w]orked well on focused tasks for [one hour]”, and was “[c]omplying well w[ith] appropriate precautions.” Id. He returned to occupational therapy on December 23, 2013, and progress notes reflect that Dziamalek put in “good” effort and “performed self massage well after instruction and encouragement” but that “raised thick fibrotic area may impede ulnar nerve regeneration.” Ex. 10F, R. at 681. He returned on December 30, 2013 and notes reflect “good” effort and active range of motion, and a “hard, raised scar tissue at site of repair” but that “scar massage very effective today.” Ex. 10F, R. at 683. His left-hand grip strength was 45 pounds, and pinch strength was 8 pounds. Id. at 684. Progress notes from January 6, 2014 reflected that Dziamalek complained that his pinky hurt, that he “lack[ed] fine motor control” and “digital extension deficit” was persistent. Ex. 10F, R. at 686. Further, notes reflected that there were “signs of atrophy from denervated muscles” and Dziamalek was instructed to “stop covering the area to allow it to desensitize” and to use the scar pad at night rather than the day. Id. Further, notes reflect that Dziamalek “tend[ed] to minimize left hand deficits” but that “gains [were] noted in all areas.” Id.

         Progress notes from January 21, 2014 reflect that Dziamalek was moving his hand more comfortably and covering it less. Ex. 10F, R. at 690. Notes reflect that Dziamalek “complie[d] well with HEP and [was] trying to use his hand more often.” Id. at 691. Progress notes from January 27, 2014 reflect that Dziamalek had “mild ulnar clawing” and that he “tend[ed] to over stretch and flex/extend with all his might” but showed “sig[nificant] improvement.” Ex. 10F, R. at 694. Progress notes from February 6, 2014 reflect Dziamalek put in “excellent effort” but complained that he could not use his left hand because the “small finger [was] always in the way” and it was “tingly all the time.” Ex. 10F, R. at 696. His left-hand grip and pinch strength showed “sig[nificant] gain” since his last visit. Id. at 697. Progress notes from February 10, 2014 showed that he lacked digital abduction/adduction and Dziamalek was encouraged to follow up with the surgeon about his progress. Ex. 10F, R. at 698-99. Progress notes from February 17, 2014 reflected that Dziamalek's hand was “much improved” but that he had a “classic claw deformity” and was “unable to extend ulnar digits” but showed “sig[nificant] gains in all areas.” Ex. 10F, R. at 701-02. On February 24, 2014, Dziamalek complained that he continued to have “inabilities in [his] left hand” and could not peel potatoes or open cans, and had “great difficulty” cutting a tomato. Ex. 10F, R. at 705. Notes reflect a “decreased palmar arch” and “claw hand deformity.” Ex. 10F, R. at 706.

         Throughout the time while Dziamalek was doing occupational therapy for his hand, he was also continuing with group therapy for his substance abuse at BH Care. See Ex. 8F, R. at 521-36. Progress notes from all sessions[2] reflect that Dziamalek's affect, mood, thought process, orientation, and behavior were unremarkable. See id. Dziamalek expressed that he was serious about his recovery and also wanted to learn to “manag[e] his anger and emotions in a way that support[ed] his recovery and maintain[ed] healthy relationships.” Ex. 8F, R. at 527. Further, as of February 24, 2014, Dr. Riordan determined that Dziamalek had a Global Assessment of Functioning (“GAF”) score of 45 which reflected either moderate symptoms or “moderate difficulty in social, occupational, or school functioning. Ex. 11F, R. at 721. That had improved from Dr. Riordan's assessment from December 4, 2013 in which he found that Dziamalek had serious impairment in social, occupational, or school functioning. Ex. 11F, R. at 718.

         On May 6, 2014, Dziamalek was seen by Dr. Imevbore for a follow up chest CT scan that was compared to two prior scans from September 2011 and October 2013. Ex. 17F, R. at 849. Notes from the visit reflect that the “few small bilateral lung nodules” were “stable, ” “unchanged, ” and “consistent with benign findings.” Id. There was, however, a “changed pattern of patchy groundglass parenchymal disease in upper lobes, ” likely caused by inflammation, infection, or idiopathy. Id. Dr. Imevbore recommended “continued interval CT follow-up.” Id. Dziamalek underwent another CT scan on September 17, 2014 which was compared to the May 2014 scan which again showed the nodule was “unchanged” and “consistent with a benign finding.” Ex. 19F, R. at 1066. Further, on November 17, 2015, Dziamalek underwent another CT scan which reflected that, when compared to March 2013 and May 2014, the right nodule was unchanged. Ex. 17F, R. at 843.

         Dziamalek was incarcerated from August 20, 2014[3] to January 16, 2015 for violation of probation. See Ex. 16F, R. at 809. Dziamalek returned to BH Care on January 29, 2015 for treatment following his incarceration, and intake notes reflect that he had minimally impaired judgment and insight. Ex. 16F, R. at 801, 804. Treatment notes reflect that Dziamalek continued to have unremarkable judgment, thought process and content, orientation, and behavior. See Ex. 16F, R. at 814-28.

         On June 25, 2015, Dziamalek presented at Back to Health Branford LLC with arm and shoulder pain that had been occurring for three weeks. Ex. 224, R. at 1509. Dziamalek reported that he had numbness, tingling, and pain in his arms as well as pain and a “grinding sensation” in his shoulders. Id. Treatment notes reflect that Dziamalek had an “extremely limited” range of motion in his shoulders, “shuddered” with pain with light palpation of both shoulders, and refused to attempt shoulder rotation due to pain. Id. Dziamalek was sent for an MRI, but refused physical therapy because he could not move his shoulders and also refused anti-inflammatory medication. Id. He returned to Back to Health on July 20, 2015 to review the MRI and reported that he still had numbness in his arms. Ex. 22F, R. at 1506. Treatment notes reflect that Dziamalek reported continuing “exquisite pain” in his shoulders “with even the slightest palpation” as well as “numbness and tingling down both arms when elevated over his head.” Id. The MRI reflected that Dziamalek had right shoulder tendinopathy and had small bony fragment anterior to acromion in his left shoulder. Id. at 1507. Dziamalek was referred to an orthopedist but was “extremely resistant to the idea of any form of surgery” and continued to refuse physical therapy because “he [could] not ‘move his arms.'” Id. Treatment notes reflect that Dziamalek was told he was “out of options” because he refused everything else. Id.

         Dziamalek continued to treat with Back to Health Branford through 2016 and 2017, with Dr. Michael Wong, beyond his disability coverage date. See Ex. 22F. Treatment notes reflect that Dziamalek complained regularly of hip and back pain, back spasms, and difficulty breathing. See R. at 21-22, 47-77.

         B. Procedural History

         Dziamalek filed for Social Security benefits on October 21, 2013. App. for Benefits, Ex. 1D, R. at 260. The SSA initially denied Dziamalek's disability benefits claim on March 11, 2014. Denial of App., Ex. 1A, R. at 125. The SSA found that Dziamalek's condition resulted in “some limitations in [his] ability to perform work related activities” but that his condition was “not severe enough to keep [him] from working.” DIB Int'l Explanation, Ex. 2A, R. at 139. Further, although it did “not have sufficient vocational information to determine whether [he could] perform any of [his] past relevant work”, the SSA determined that Dziamalek could “adjust to other work.” Id. Dziamalek's claim was again denied upon reconsideration on October 27, 2014. Reconsideration Transmittal, Ex. 3A, R. at 140. In doing so, the SSA stated that Dziamalek was “responsible for furnishing evidence to support [his] claim, and, despite SSA's requests for him to do so, Dziamalek failed to provide anything additional. DIB Reconsid. Explanation, Ex. 4A, R. at 154. The SSA concluded that “a determination [had] been made based on the evidence in file”, which “[did] not show that [Dziamalek was] disabled.” Id.

         On December 12, 2014, Dziamalek requested a hearing before an Administrative Law Judge (“ALJ”). Hr'g Request, Ex. 4B, Doc. No. 166. The hearing was held on July 11, 2016 before ALJ Matthew Kuperstein. Tr. of ALJ Hr'g, R. at 79. The hearing record consisted, in part, of medical records from various treatment providers from December 2010 to May 2014. See id. at 86; see also Ex. 1F-15F, R. at 325-800. At the hearing, Dziamalek's attorney submitted hospital records from Yale New Haven Health from July 2015 through March 2016, which were marked at 19F.[4] Tr. of ALJ Hr'g, R. at 82. Even though it was a late submission, the ALJ accepted them into the record. Id., R. at 82-84. The ALJ then left the record open for three weeks for any additional medical records to be submitted. Id. at 85. Dr. Chukwuemeka Efobi was present for the hearing, but the ALJ released him without testimony because the supplemental medical records related to Dziamalek's physical health, rather than mental health. Id. at 87. The ALJ stated that if any further records came in that stated anything different from earlier mental health treatment notes, then he would hold a supplemental hearing. Id.

         Dziamalek testified that he stopped working at his last job around April 1, 2010, and had not worked since, which is why he picked that date as his alleged onset date. Tr. of ALJ Hr'g, R. at 93, 98. He testified that he could not remember if he was fired or if he quit, but he could no longer perform the work because his depression and anxiety were “just so bad” that he “couldn't function anymore.” Id. at 93. From 2006 to 2010, he worked at Dunkin' Donuts as a doughnut preparer, which included frosting the donuts and preparing them for sale. Id. at 98. Dziamalek testified that while he worked there he stood all day and could lift up to 20 pounds at a time. Id. at 98-99. Before Dunkin' Donuts, he worked in shipping and receiving at BJ's Wholesale Club from 2001 to 2004. Id. at 99. There, he mostly stood but sometimes sat for 20 minutes at a time and could lift up to 50 pounds at a time. Id. at 99-100.

         Dziamalek testified that he had not been able to work since 2010 for a number of reasons related to his physical and mental health. Tr. of ALJ Hr'g, R. at 100-02. With respect to his mental health, Dziamalek testified that he had anxiety every day, was depressed, and “[could not] concentrate anymore on one certain thing” because his “mind [kept] running, ” which was not helped by medication. Id. at 100. With respect to his physical health, Dziamalek testified that he had problems with his back, right leg, and left hand. Id. at 100-02. He testified that his back and leg were “shot” and his left hand was “useless.” Id. at 100. It appears from his testimony that his right leg problems began when he was in the hospital in March and April of 2015, after which he was diagnosed with a hematoma. Id. at 101-02. He testified that his leg would swell but he had been denied medication so he “[could not] get any help for the pain.” Id. at 100.

         He testified that his health issues affected his ability to help his father and brother around the house, and he could only do “very little” such as “a few dishes in the sink … and maybe pick up the newspaper”, but he could not do any landscaping or snow removal. Tr. of ALJ Hr'g, R. at 94. Further, he testified that his physical health issues affected his ability to drive, which he did “not too often, ” and he could only do so for 15-20 minutes at a time. Id. at 96. Further, sometimes his “throwing up [was too] bad” and someone else drove him to his appointments or meetings. Id. at 107. Dziamalek testified that he could only stand or walk for 15 minutes at a time because of his back issues and because his right leg would swell up, and he could only sit for 20 minutes at a time. Id. at 95-96. Further, Dziamalek testified that when his leg would swell, he would “lay in bed with [his] leg up [and] watch TV”, which was “basically what [he did] every day.” Id. at 100, 107. Dziamalek also testified that in 2010 he drank and used drugs (specifically crack cocaine, heroin, and pills), but stopped drinking in 2014 and stopped doing drugs in 2011. Id. at 105. He testified that he smoked a half a pack of cigarettes per day. Id.

         The ALJ next heard testimony from Vocational Expert (“VE”), Ruth Baruch, who testified that Dziamalek's prior work as a “doughnut baker” was considered a “semi-skilled” position with “medium” exertional level, that Dziamalek “performed in a light capacity.” Tr. of ALJ Hr'g, R. at 109-10. Further, she testified that his prior work as a “floor worker” at B.J.'s was considered a “semi-skilled” position with “heavy” exertional level, that Dziamalek “performed in medium capacity.” Id. The ALJ asked Baruch to consider a hypothetical individual with the following characteristics: the above-mentioned past jobs; high school level education; age 51; limited to medium exertional work with a need to avoid concentrated exposure to fumes, odors, dusts, gases, or poor ventilation; and limited to work that involved routine work tasks with no interaction with the general public, and involved only occasional collaboration or teamwork with others. Id. at 110-11. The ALJ asked Baruch whether that hypothetical individual could perform any of Dziamalek's prior jobs, and Baruch testified that she would rule out Dziamalek's past work because his work at BJ's was not “totally routine” given his work with machines, and his work at Dunkin' Donuts would require him to be around odors and fumes. Id. at ...


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