Arias v. Berryhill

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LOURDES ARIAS, NOT FOR PUBLICATION

Plaintiff,

MEMORANDUM AND ORDER

v.

18-cv-1296(KAM)

ANDREW M. SAUL,1

COMMISSIONER OF SOCIAL SECURITY

Defendant.

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MATSUMOTO, United States District Judge:

Lourdes Arias (“plaintiff”) appeals the final decision

of the Commissioner of Social Security (“defendant” or

“Commissioner”), which found that plaintiff was not eligible for

disability insurance benefits under Title II of the Social

Security Act (“the Act”), or supplemental security income

benefits under Title XVI of the Act, on the basis that plaintiff

is not disabled within the meaning of the Act. Plaintiff

alleges that she is disabled under the Act and is thus entitled

to receive the aforementioned benefits.

Presently before the court is defendant’s motion for

judgment on the pleadings (ECF No. 15), and plaintiff’s

1 The plaintiff commenced this action against Nancy A. Berryhill, as

Acting Commissioner of Social Security. On June 17, 2019, Andrew M. Saul

became the Commissioner of Social Security. Because Nancy A. Berryhill was

sued in this action only in her official capacity, Andrew M. Saul is

automatically substituted for Nancy A. Berryhill as the named defendant. See

Fed. R. Civ. P. 25(d). The Clerk of the Court shall amend the caption in

this case as indicated above.

2 As discussed further below, SSA regulations require disability

memorandum in support of her cross-motion for judgment on the

pleadings (ECF. No 16). For the reasons stated below,

plaintiff’s motion is GRANTED, defendant’s motion is DENIED, and

the case is remanded for further proceedings consistent with

this Memorandum and Order.

BACKGROUND

I. Procedural History

On October 27, 2014, plaintiff Lourdes Arias filed

applications for disability insurance benefits (“DIB”) and

supplemental security income (“SSI”) benefits. (ECF No. 1,

Complaint (“Compl.”) 1; ECF No. 18, Administrative Transcript

(“Tr.”) 109, 202-03,205-10, 239.) Plaintiff’s alleged

disability onset date is February 11, 2014, and she claims she

was disabled as a result of osteoarthritis, hypertension,

diabetes with ketoacidosis and depressive disorder. (Id.)

On February 23, 2015, the SSA denied plaintiff’s DIB

and SSI applications on the grounds that plaintiff was not

disabled within the meaning of the Act. (Tr. 122-25.) On

February 27, 2015, plaintiff requested a hearing before an

Administrative Law Judge (“ALJ”). (Id. 138-40.) On May 9,

2017, plaintiff and her attorney appeared before ALJ Laura

Michaelec Olszewski. (Id. 74-108.) Vocational expert Molly M.

Kelly also appeared. (Id.) By decision dated June 21, 2017,

the ALJ determined that plaintiff was not disabled within the

meaning of the Act and was thereby not entitled to benefits.

(Id. 9-29.)

On June 29, 2017, Plaintiff appealed the ALJ’s decision

to the Appeals Council. (Tr. 198-200.) On January 2, 2018, the

Appeals Council denied review of the decision, effectively

rendering the ALJ decision final. (Id. 1-8.) On March 1, 2018,

plaintiff filed the instant action in federal court. (See

generally Compl.)

II. Medical and Non-Medical Evidence

The parties filed a Joint Stipulation of Relevant Facts

on December 3, 2018, which the court incorporates by reference.

(ECF No. 15-1.) The court will additionally address the medical

opinion evidence, as well as those facts relevant to the

decision.

A. Records Submitted by Plaintiff

On January 31, 2015, the plaintiff submitted records

from Harlem Hospital Center (“HHC”), which included a statement

signed by Clarisa Atencio, MD, on October 28, 2014, which stated

that plaintiff had been treated since October 17, 2014. (Tr.

358-65.) Dr. Atencio’s letter stated that plaintiff suffered

from panic attacks; depression, fear of elevators, crowds and

heights; insomnia; patient has sustained falls during her

anxiety attacks and has lost consciousness. (Id. 358.) Dr.

Atencio diagnosed plaintiff with panic disorder with

agoraphobia; major depressive disorder, recurrent, moderate;

diabetes mellitus; hypertension; arthritis; status-post gastric

bypass; and syncope. (Id.) Dr. Atencio also noted that

plaintiff was prescribed the medications paroxetine, clonazepam,

and mirtazapine. (Id.)

On June 25, 2015, plaintiff submitted multiple sets of

medical records from HHC. (Tr. 287-88, 289-350, 351-52, 353-55,

356-57, 428-557, 618-19, 763-64, 773-77.) On June 16, 2016,

plaintiff submitted additional records from HHC. (Id. 778-906.)

On April 28, 2017, plaintiff submitted 305 additional pages of

medical records from HHC, many of which were duplicates of

records previously submitted. (See id. 908-1076, 1077-213.) On

May 8, 2017, plaintiff submitted a Mental Residual Functional

Capacity (“RFC”) Assessment completed by Dr. Atencio. (Id.

1214-18.) On May 19, 2017, plaintiff submitted 304 more pages

of medical records from HHC, many of which, yet again, were

duplicates. (Id. 1219-522.)

At the hearing, the ALJ questioned plaintiff’s

representative, Claudia Costa, about the timeliness of the

Mental Assessment form completed by Dr. Atencio and whether it

violated the five-day rule.2 (Tr. 78-79.) Ms. Costa advised

2 As discussed further below, SSA regulations require disability

claimants to submit any new evidence, or at least tell the hearing office

about it, at least five business days before a hearing before an ALJ, with

certain exceptions.

that she had previously requested the RFC but that May 5, 2017

was “first time that we were able to have the psychiatrist

actually read the RFC.” (Id. 79.) The ALJ announced she would

take the matter under advisement. (Id.) In her decision, the

ALJ declined to admit either Dr. Atencio’s RFC statement or the

HHC records submitted on May 19, 2017, ruling that the

representative had not shown that she advised the ALJ more than

five days before hearing that either exhibit was outstanding or

would be submitted, in violation of the regulations. (Id. 12-

13.)

B. HHC Treatment Records

Plaintiff was treated at HHC from January 24, 2012

through the date of the hearing, for both physical and mental

disorders. (See generally Tr. 287-1522.) In January 2012,

plaintiff was administered an ECG, which indicated that

plaintiff had an abnormality with a premature atrial complex3 and

a lengthened QT.4 (Id. 393.) Plaintiff was treated for diabetes

3 Atrial premature complexes (APCs) are a common kind of heart arrhythmia

characterized by premature heartbeats originating in the atria. Another name

for atrial premature complexes is premature atrial contractions. One of the

most common symptoms of APCs is heart palpitations or unusual awareness of

one’s heartbeats. Healthline, https://www.healthline.com/health/atrial-

premature-complexes.

4 Long QT syndrome (LQTS) is a heart rhythm condition that can

potentially cause fast, chaotic heartbeats. These rapid heartbeats might

trigger a sudden fainting spell or seizure. Mayo Clinic,

https://www.mayoclinic.org/diseases-conditions/long-qt-syndrome/symptoms-

causes/syc-20352518.

mellitus, but had a normal A1C level of 6.0 and 5.7 in 2014,

indicating that the condition was well-controlled. (Id. 290,

333, 477.) Plaintiff was also diagnosed in 2014 with morbid

obesity and major depressive disorder, moderate degree. (Id.

305, 334.) In February 2014, plaintiff was first diagnosed via

imaging studies to have spurring of the left epicondyle of her

right elbow. (Id. 352.) In November 2014, a bone density scan

indicated that plaintiff had a T-score of 1.9, suffered from

osteopenia in her lumbar spine, and was at increased risk of

fracture.5 (Id. 357.) In October of 2014, Dr. Atencio stated

that the plaintiff suffered from panic disorder with

agoraphobia; major depressive disorder, recurrent, moderate;

diabetes mellitus; arthritis; post gastric bypass; and syncope.

(Id. 358.)

Plaintiff’s records from February through May of 2015

reflect that she suffered from dizziness, shoulder pain, hand

spasms, a near syncope episode, and bone loss. (Tr. 549, 539,

552-55.) Plaintiff underwent a follow-up ECG in May 2015 to

rule out cardiac cause of her syncope episodes. (Id. 774-77.)

In August 2015, plaintiff was diagnosed with bursitis in the

5 Osteopenia and osteoporosis are related diseases. Both are varying

degrees of bone loss, as measured by bone mineral density, a marker for how

strong a bone is and the risk that it might break. A T score of less than 1.0

is a normal finding, a T score of 1.0-2.4 is labeled as osteopenia, and a T

score of 2.5 or higher is osteoporosis. Osteopenia: When you have weak

bones, but not osteoporosis, https://www.health.harvard.edu/womens-

health/osteopenia-when-you-have-weak-bones-but-not-osteoporosis.

right AC joint and prescribed the narcotic medication codeine

for pain. (Id. 1035-36.)

Plaintiff first complained of bone pain in September

2015 (Tr. 1329, 741-46), and the record reflects that she

complained frequently of bone pain thereafter. (Id. 1172, 966-

67, 940, 946.) On April 17, 2016, a follow-up bone density scan

indicated that plaintiff’s condition had deteriorated, and her

elevated T- score of 2.2 bordered on osteoporosis. (Id. 1006-

07.)

On June 29, 2016, Dr. Claricio DeCastro examined the

plaintiff and found that she suffered from tenderness at the

supraspinatus with shoulder impingement. (Tr. 951.) Dr.

DeCastro diagnosed plaintiff with moderate tendinosis of the

supraspinatus tendon, mild tendinosis of the intracapsular

portion of the biceps tendon, and mild AC joint arthrosis.

(Id.) An MRI performed on plaintiff’s right shoulder on March

11, 2016, indicated that plaintiff suffered from moderate

tendinosis of the supraspinatus tendon, mild tendinosis of the

intracapsular portion of the biceps tendon, mild

acromioclavicular joint arthritis, and minimal subacromial

bursitis. (Id. 1000-01.) On April 26, 2016, plaintiff

presented pain in her right shoulder, radiating to her neck, and

associated with muscle spasm and cramping. (Id. 969-70.)

Plaintiff complained that she could not brush her hair, nor

could she carry a gallon of milk (approximately 8 pounds) in her

right dominant hand. (Id.) Subsequent visits indicate similar

findings. (Id. 1037-41, 952-53, 940, 942-43.)

There is no medical source statement in the file with

regard to plaintiff’s physical limitations. It does not appear

that there was a consultative examination scheduled for the

plaintiff by the ALJ, nor does it appear that the

representative, who had represented the plaintiff for more than

two years at the time of the hearing, ever requested one. The

non-expert, single decision maker, D. Nieves, stated that the

claimant did not describe how her symptoms limit her

functioning, and therefore, her credibility could not be

assessed. (Tr. 113.) Moreover, D. Nieves made no findings as

to plaintiff’s exertional limitations, despite finding that

plaintiff could return to her past relevant work. (Id. 109-17.)

C. Medical Opinion of Treating Psychiatrist Clarisa

Atencio, MD

On May 5, 2017, a “Mental Residual Functional Capacity

Assessment” form was completed by Dr. Atencio. Although the

form was scanned into plaintiff’s file, and listed as Exhibit

21F, the ALJ refused to consider the document because it was not

timely submitted. (Tr. 1215-18, 12-13.) Dr. Atencio stated

that plaintiff had been treating with her since October 2014.

(Id. 1215.) Dr. Atencio diagnosed plaintiff with major

depressive disorder, recurrent; panic disorder with agoraphobia;

hyperparathyroidism; and Type 2 diabetes. (Id.) She opined

that plaintiff had a GAF score of 55 and a “fair” prognosis.

(Id.)6 She noted that plaintiff has physical conditions, which

contributed to mental impairments and explained that plaintiff

has vertigo, chronic bone pain, and episodes of falls. (Id.)

Dr. Atencio states that plaintiff was treated with medication,

supportive therapy, and psychoeducation. (Id.) Dr. Atencio

projected that plaintiff’s impairments would last more than

twelve months, and determined that plaintiff was not a

malingerer. (Id.)

Dr. Antencio opined that, with respect to plaintiff’s

understanding and memory, she suffered from marked limitations

in her ability to remember locations and work-like procedures,

and to understand and remember detailed instructions, as well as

moderate limitations in the ability to understand and remember

very short and simple instructions. (Tr. 1216.) Plaintiff’s

other marked limitations included the ability to maintain

attention and concentration for extended periods, to perform

activities within a schedule, maintain regular attendance, be

6 GAF, or Global Assessment of Functioning, is a scoring system that

mental health professionals use to assess how well an individual is

functioning in their daily lives. The scores range from 0 to 100, with 100

representing superior functioning. Doctors take into consideration how much

difficulty a person has in their daily life with social, occupational,

school, and psychological functioning before assigning a score. Healthline,

https://www.healthline.com/health/gaf-score.

punctual within customary tolerances, and sustain an ordinary

routine without special supervision. (Id. 1216-17.) Dr.

Atencio further opined that plaintiff was extremely limited in

her ability to travel to unfamiliar places and use public

transportation, and had a markedly limited ability to tolerate

normal levels of stress. (Id. 1218.) Dr. Atencio also opined

that plaintiff would need to miss five days of work per month,

and could not work on a regular and sustained basis. (Id.)

D. Medical Opinion of State Agency Psychologist E.

Selesner, Ph.D.

On February 20, 2015, E. Selesner, Ph.D., a State

agency psychological consultant, reviewed the medical evidence

of record and completed a psychiatric review technique form.

(Tr. 112.) Dr. Selesner determined that plaintiff had mild

restrictions in activities of daily living, moderate

difficulties in maintaining social functioning, moderate

difficulties in maintaining concentration, persistence, or pace,

and had no episodes of decompensation. (Id.) Dr. Selesner also

assessed plaintiff’s mental RFC, and determined that plaintiff

was capable of following supervision and relating appropriately

with coworkers, and performing tasks in a setting in which she

would not have frequent contact with the public. (See id. 114-

16.)

LEGAL STANDARD

Unsuccessful claimants for disability benefits under

the Act may bring an action in federal district court seeking

judicial review of the Commissioner’s denial of their benefits

“within sixty days after the mailing . . . of notice of such

decision or within such further time as the Commissioner of

Social Security may allow.” 42 U.S.C. §§ 405(g), 1383(c)(3). A

district court, reviewing the final determination of the

Commissioner, must determine whether the correct legal standards

were applied and whether substantial evidence supports the

decision. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.

1998).

A district court may set aside the Commissioner’s

decision only if the factual findings are not supported by

substantial evidence or if the decision is based on legal error.

Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).

“Substantial evidence is more than a mere scintilla,” and must

be relevant evidence that a “reasonable mind might accept as

adequate to support a conclusion.” Halloran v. Barnhart, 362

F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 420

U.S. 389, 401 (1971)) (internal quotation marks omitted). If

there is substantial evidence in the record to support the

Commissioner’s factual findings, those findings must be upheld.

42 U.S.C. § 405(g). Inquiry into legal error “requires the

court to ask whether ‘the claimant has had a full hearing under

the [Commissioner’s] regulations and in accordance with the

beneficent purposes of the [Social Security] Act.’” Moran v.

Astrue, 569 F.3d 108, 112 (2d Cir. 2009). The reviewing court

does not have the authority to conduct a de novo review, and may

not substitute its own judgment for that of the ALJ, even when

it might have justifiably reached a different result. Cage v.

Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012).

To receive disability benefits, claimants must be

“disabled” within the meaning of the Act. See 42 U.S.C. §§

423(a), (d). A claimant is disabled under the Act when she is

unable 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); Shaw v. Chater, 221 F.3d

126, 131–32 (2d Cir. 2000). The impairment must be of “such

severity” that the claimant is unable to do her previous work or

engage in any other kind of substantial gainful work. 42 U.S.C.

§ 423(d)(2)(A). “The Commissioner must consider the following

in determining a claimant’s entitlement to benefits: ‘(1) the

objective medical facts [and clinical findings]; (2) diagnoses

or medical opinions based on such facts; (3) subjective evidence

of pain or disability . . . ; and (4) the claimant’s educational

background, age, and work experience.’” Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,

174 F.3d 59, 62 (2d Cir. 1999)).

Pursuant to regulations promulgated by the

Commissioner, a five-step sequential evaluation process is used

to determine whether the claimant’s condition meets the Act’s

definition of disability. See 20 C.F.R. § 404.1520. This

process is essentially as follows:

[I]f the Commissioner determines (1) that the claimant

is not working, (2) that he has a ‘severe impairment,’

(3) that the impairment is not one [listed in Appendix

1 of the regulations] that conclusively requires a

determination of disability, and (4) that the claimant

is not capable of continuing in his prior type of

work, the Commissioner must find him disabled if (5)

there is not another type of work the claimant can do.

Burgess, 537 F.3d at 120 (internal quotation marks and citation

omitted); see also 20 C.F.R. § 404.152(a)(4). At any of the

previously mentioned steps, if the answer is “no,” then the

analysis stops and the ALJ must find that claimant is not

disabled under the Act.

During this five-step process, the Commissioner must

consider whether “the combined effect of any such impairment . .

. would be of sufficient severity to establish eligibility for

Social Security benefits.” 20 C.F.R. § 404.1523. Further, if

the Commissioner does find a combination of impairments, the

combined impact of the impairments, including those that are not

severe (as defined by the regulations), will be considered in

the determination process. 20 C.F.R. § 416.945(a)(2). In steps

one through four of the sequential five-step framework, the

claimant bears the “general burden of proving . . . disability.”

Burgess, 537 F.3d at 128. In step five, the burden shifts from

the claimant to the Commissioner, requiring that the

Commissioner show that, in light of the claimant’s RFC, age,

education, and work experience, the claimant is “able to engage

in gainful employment within the national economy.” Sobolewski

v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y. 1997).

Lastly, federal regulations explicitly authorize a

court, when reviewing decisions of the SSA, to order further

proceedings when appropriate. “The court shall have power to

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.” 42 U.S.C. § 405(g). Remand is

warranted where “there are gaps in the administrative record or

the ALJ has applied an improper legal standard.” Rosa v.

Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratts, 94

F.3d at 39) (internal quotation marks omitted). Remand is

particularly appropriate where further findings or explanation

will clarify the rationale for the ALJ’s decision. Pratts, 94

F.3d at 39. However, if the record before the court provides

“persuasive proof of disability and a remand for further

evidentiary proceedings would serve no purpose,” the court may

reverse and remand solely for the calculation and payment of

benefits. See, e.g., Parker v. Harris, 626 F.2d 225, 235 (2d

Cir. 1980); Kane v. Astrue, 942 F. Supp. 2d 301, 314 (E.D.N.Y.

2013).

DISCUSSION

I. The ALJ’s Disability Determination

Using the five-step sequential process to determine

whether a claimant is disabled as mandated by 20 C.F.R. §

416.971, the ALJ determined at step one that the plaintiff had

not engaged in substantial gainful activity since the alleged

onset date of February 11, 2014. (Tr. 15.) At step two, the

ALJ found that the plaintiff suffered from the severe

impairments of osteoarthritis, depression, anxiety disorder, and

obesity. (Id.) The ALJ considered the plaintiff’s conditions

of diabetes mellitus, hyperlipidemia, and hypertension, but

found them to be non-severe. (Id.)

At step three, the ALJ determined that from February

11, 2014, through the date of the hearing, plaintiff did not

have an impairment or combination that meets or medically equals

one of the listed impairments in Appendix 1 of the regulations,

20 C.F.R. § 404.1520, Appendix 1 (20 C.F.R. §§ 416.920(d) and

416.926), although the ALJ considered Listings 12.04, 12.06 and

1.04. (Tr. 15-18.) The ALJ found that as of the hearing date,

plaintiff would be capable of performing medium work, in a low

stress environment, with the following limitations:

• Lift and/or carry 50 pounds occasionally, and 25

pounds frequently;

• Sit for six hours in an eight-hour workday;

• Stand and/or walk for six hours in an eight-hour

workday;

• Occasionally climb ramps and stairs;

• Never climb ladders or scaffolds;

• Occasionally balance and stoop;

• Never kneel, crouch, or crawl;

• Avoid reaching overhead with the right arm;

• Frequently reach in all other directions, with no

restrictions on the left arm;

• Push and pull up to 50 pounds occasionally, and 25

pounds frequently;

• Occasional use of judgment;

• Occasional decision making;

• Occasional changes in the work setting;

• Simple, routine, and repetitive tasks; and

• Occasional interaction with supervisors, coworkers,

and the public.

(Id. 18-22.)

In determining the RFC, the ALJ stated that she did

not consider the tardily-filed opinion of Dr. Atencia, and gave

“great weight” to the opinion of Dr. Selesner. (Tr. 12-13, 21.)

With regard to the plaintiff’s exertional limitations, there is

no medical source cited. (See generally id. 12-24.)

At step four, the ALJ found that plaintiff could

return to her past relevant work as a jewelry packer. (Tr. 22.)

At step five, in the alternative, the ALJ determined that

plaintiff could perform other jobs that exist in significant

numbers in the national economy, including janitor, production

helper, and hand packager. (Id. 23, 99.) As a result, the ALJ

found that plaintiff was not disabled. (Id. 24.)

Plaintiff challenges the ALJ’s determination on

several grounds. First, plaintiff argues the ALJ should not

have given “great weight” to the opinion of Dr. Selesner,

arguing that he might not be qualified. (ECF No. 16, Pl.’s Mem.

3.) Plaintiff further contends that the ALJ erred in not

obtaining medical expert testimony regarding plaintiff’s

physical limitations. (Id. 3-4.) Lastly, plaintiff asserts

that the ALJ failed to develop the record because there was no

consultative examination sought with regard to the plaintiff’s

physical impairments. (Id. 4-6.)

II. The ALJ Did Not Err Regarding Dr. Selesner’s Opinion

Plaintiff argues that the ALJ erred in giving great

weight to the opinion of Dr. Selesner, in part, because there is

no indication that Dr. Selesner is a physician. (See Pl.’s Mem.

3.) But plaintiff misses the significance of Dr. Selesner’s

designation by title code “38” (see Tr. 116), which, pursuant to

the Program Operations Manual System (POMS), indicates that Dr.

Selesner is a psychologist. See POMS DI 24501.004, Medical

Specialty Codes. Although not a physician, Dr. Selesner is a

qualified expert whose opinions should be properly considered in

matters relating to mental impairments.

Additionally, plaintiff errs by implying that there

was a contradictory opinion presented. The opinion of Dr.

Selesner was the only medical opinion in the file because

plaintiff did not timely submit Dr. Atencio’s Mental RFC

Assessment, in violation of the “five-day rule,” and without

“good cause” shown. Plaintiff had a duty to advise the SSA of

outstanding treatment sources in a timely manner. SSA

regulations under 20 C.F.R. §§ 404.935 and 416.1435 provide that

a plaintiff should inform the SSA about evidence or submit

evidence no later than five business days before the hearing. In

adopting the five-day rule, the SSA specifically sought to

“appropriately balance the twin concerns of fairness and

efficiency.” Ensuring Program Uniformity at the Hearing and

Appeals Council Levels of the Administrative Review Process, 81

FR 90987, 90990, 2016 WL 7242991 (Dec. 16, 2016). The SSA

contemplated that the rule would “ensure claimants have the

benefit of a fully developed record at the time our ALJs conduct

their hearings.” Id. On the other hand, “[t]o say that the ALJ

was required to admit and consider [tardily-filed] evidence

despite the fact that it was not submitted in compliance with

the five-day rule would make that rule an empty vessel that need

not be complied with.” Arthur L. v. Berryhill, No.

518CV304FJSDJS, 2019 WL 4395421, at *4 (N.D.N.Y. June 6, 2019),

report and recommendation adopted sub nom. Arthur L. v. Saul,

No. 518CV304FJSDJS, 2019 WL 3213229 (N.D.N.Y. July 17, 2019).

In this instance, neither plaintiff nor her

representative took steps to notify the ALJ that there were

records outstanding. Plaintiff’s attorney entered an appearance

in the matter two years prior to the hearing. Counsel did not

act diligently to inform the ALJ about treatment sources

contradictory to Dr. Selesner’s opinion, and accordingly, those

records were properly excluded. Because Dr. Selesner was a

qualified expert, and his opinion was present in the record and

stood as the only opinion timely submitted at the time of

plaintiff’s hearing, the ALJ properly considered and assigned

“great weight” to the opinion.

III. The ALJ Failed to Develop the File

As noted above, there is no indication in the record

that plaintiff was ever requested to attend a consultative

examination for either her mental impairments or physical

impairments. Further, no medical source statement was sought

and introduced in a timely manner with regard to either

plaintiff’s physical or mental impairments. Thus, the only

opinion evidence in the file was the opinion of the non-

examining state-agency psychologist who opined solely as to

plaintiff’s mental impairments. The record is bereft of a

medical opinion regarding plaintiff’s exertional limitations,

despite the fact that she suffered from at least one severe

physical impairment.

Though plaintiff failed to provide medical source

opinions, or request a consultative examination, this did not

negate the ALJ’s concurrent obligation to develop the record.

According to the SSA regulations, the Commissioner must “make

every reasonable effort” to assist the claimant in developing a

“complete medical history.” 20 C.F.R. § 404.1512(d).

Furthermore, “[i]t is the rule in our circuit that the ALJ,

unlike a judge in a trial, must [her]self affirmatively develop

the record in light of the essentially non-adversarial nature of

a benefits proceeding. This duty . . . exists even when, as

here, the claimant is represented by counsel.” Pratts v.

Chater, 94 F.3d 34, 38 (2d Cir. 1996) (internal citations and

quotations omitted). Thus, if the claimant’s medical record is

inadequate, it is “the ALJ's duty to seek additional information

from the [treating physician] sua sponte.” Schaal, 134 F.3d at

505; see Rosa, 168 F.3d at 79 (“[A]n ALJ cannot reject a

treating physician's diagnosis without first attempting to fill

any clear gaps in the administrative record.”). “[U]nlike a

judge in a trial, [an ALJ] must . . . affirmatively develop the

record [on behalf of the claimant].” Lamay v. Comm'r of Soc.

Sec., 562 F.3d 503, 508-09 (2d Cir. 2009) (quoting Tejada v.

Apfel, 167 F.3d 770, 774 (2d Cir. 1999)). The ALJ must

“scrupulously and conscientiously probe into, inquire of, and

explore for all the relevant facts.” Hankerson v. Harris, 636

F.2d 893, 895 (2d Cir. 1980) (internal quotation marks omitted).

The plaintiff’s medical record in this matter was

lengthy and contained objective evidence that plaintiff suffered

from bone pain associated with bone loss, as well as

osteoarthritis and tendonitis in her right dominant shoulder.

Additionally, multiple references were contained in the record

that plaintiff suffered from episodes of dizziness and falls.

Though the ALJ addressed the issue of plaintiff’s

osteoarthritis, she did not address the issue of plaintiff’s

bone loss and syncope episodes, nor did she explain how the raw

medical evidence could be interpreted to support a finding as to

how much plaintiff was capable of lifting, carrying, pushing or

pulling. The ALJ should have obtained a medical opinion from a

qualified source, as her RFC could not stand if unsupported by

at least one medical opinion. See Goble v. Colvin, No. 15-CV-

6302 CJS, 2016 WL 3179901, at *7 (W.D.N.Y. June 8, 2016) (“[A]n

RFC determination must be supported by a competent medical

opinion.”).

The Commissioner argues “there was scant evidence of

any significant abnormal examination findings or treatment

history.” (Def.’s Reply Mem. 4.) This argument misses the

point, however. The record is rife with objective medical

findings documenting that plaintiff suffered from bone loss,

fainting spells, and osteoarthritis. The question as to whether

those abnormal physical findings are “significant” can only be

answered by a qualified medical expert. It was not within the

ALJ’s non-expert scope of discretion to interpret those raw

medical findings and deem them not significant. This is

precisely why the ALJ should have obtained a medical source

statement, called a medical expert to testify, or scheduled a

consultative examination. See Pettaway v. Colvin, 12-CV-2914

(NGG), 2014 WL 2526617, at *5 (E.D.N.Y. June 4, 2014)

(“[D]istrict courts within this Circuit have routinely

recognized that ALJs have an affirmative duty to request medical

source statements from a plaintiff’s treating sources in order

to develop the record, regardless of whether a plaintiff’s

medical record otherwise appears complete.”) (citation omitted);

see also Lazo-Espinoza v. Astrue, 10-CV-2089 (DLI), 2012 WL

1031417, at *13 (E.D.N.Y. Mar. 27, 2012) (“[T]he ALJ bears an

affirmative duty to seek out more information from the treating

physician and to develop the administrative record

accordingly.”).

Here, the record is bereft of medical opinions by any

qualified medical source regarding plaintiff’s limitations. The

ALJ, faced with a medical record that documented at least one

severe impairment, was obligated to obtain opinion evidence to

fill in the gaps in the record. Her failure to do so warrants

remand of this case with the direction that the ALJ obtain

medical source statements from treating physicians and/or

schedule plaintiff to attend a consultative physical and mental

examination.

IV. The ALJ’s RFC is Not Supported By Substantial Evidence

“In rendering an RFC determination, the ALJ must

consider objective medical facts, diagnoses, and medical

opinions based on such facts, as well as a plaintiff’s

subjective symptoms, including pain and descriptions of other

limitations.” Reisinger v. Comm'r of Soc. Sec., No. 7:16-CV-428

(ATB), 2017 WL 2198965, at *8 (N.D.N.Y. May 18, 2017) (citing 20

C.F.R §§ 404.1545, 416.945). An ALJ must specify the functions

plaintiff is capable of performing, and may not simply make

conclusory statements regarding a plaintiff’s capacities.

Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)

(citing Ferraris v. Heckler, 728 F.2d 582, 588 (2d Cir. 1984)).

The RFC assessment must also include a narrative discussion,

describing how the evidence supports the ALJ’s conclusions,

citing specific medical facts, and non-medical evidence. Trail

v. Astrue, No. 5:09-CV-1120, 2010 WL 3825629 at *6 (N.D.N.Y.

Aug. 17, 2010) (citing Social Security Ruling (“SSR”) 96-8p,

1996 WL 374184, at *7 (July 2, 1996)).

Here, the ALJ failed to cite any valid medical facts

to support her conclusion that plaintiff is capable of

performing work at the medium exertional level. Medium work is

work that requires an individual to lift up to 25 pounds

frequently (up to 5 and half hours a day), and to lift 50

pounds, which constitutes one third of her total body weight,

occasionally (up to 2 and half hours a day). 20 C.F.R. §§

404.1527, 416.967. At the time of hearing, plaintiff was a 59

year-old woman, who stood at five feet and four inches tall and

weighed 160 pounds. (Tr. 109.) She was, by objective testing,

found to suffer from weak bones as well as osteoarthritis in her

dominant shoulder. Despite those limitations, the ALJ found

that the plaintiff was capable of lifting 50 pounds.

In explaining her reasoning, the ALJ notes the fact

that the Plaintiff had been diagnosed with osteopenia, and had

been found to suffer from arthritis in her right shoulder as

well as documented tenderness in the shoulder, impingement of

the shoulder, and tenderness of the right elbow. (Tr. 19.) She

then notes that, despite those findings, plaintiff had been

frequently observed to have normal gait and intact motor

strength. (Id.) But the ALJ ignores the fact that the record

reflects plaintiff could not lift more than 8 pounds with her

right arm. (Id. 969-70.) Nor is it clear why the ALJ

considered plaintiff’s ability to walk (which by definition

involves the use of the lower extremities), to negate valid

medical findings that plaintiff has an impairment in her upper

extremity.

The ALJ noted that the plaintiff’s treatment consisted

only of medication, and that there was no evidence of

progression toward more aggressive treatment modalities. (Tr.

21.) But the record does not indicate that plaintiff’s

physicians believed there were more aggressive treatment

modalities to treat plaintiff’s condition. Any assumption that

additional or more aggressive treatments existed for plaintiff’s

condition was pure conjecture on the ALJ’s part, and merely

underscores the necessity of medical expert opinion evidence.

See Agostino v. Comm'r of Soc. Sec., No. 18-CV-1391-FPG, 2020 WL

95421, at *4 (W.D.N.Y. Jan. 8, 2020) (“[G]iven the lack of any

competent medical opinion, the Court, like the ALJ, is not in a

position to assess the extent of functional limitation posed by

[plaintiff’s] impairments.”); Goble, 2016 WL 3179901, at *6

(“[T]he ALJ’s RFC determination must be supported by competent

medical opinion; the ALJ is not free to form his own medical

opinion based on the raw medical evidence.”); Kneeple v. Colvin,

14-CV-33-JTC, 2015 WL 7431398 at *6 (W.D.N.Y. Nov. 23, 2015)

(“Where the medical findings in the record merely diagnose the

claimant’s exertional impairments and do not relate these

diagnoses to specific residual functional capabilities such as

those set out in 20 C.F.R. § 404.1567[(a)-(e)] . . . the

Commissioner may not make the connection himself.”) (citation

and internal quotation marks omitted); see also, Hazlewood v.

Comm'r of Soc. Sec., No. 6:12-CV-798, 2013 WL 4039419, at *5

(N.D.N.Y. Aug. 6, 2013) (“The ALJ is not qualified to assess a

plaintiff’s RFC on the basis of bare medical findings, and where

the medical findings in the record merely diagnose a plaintiff’s

impairments and do not relate those diagnoses to a specific RFC,

an ALJ’s determination of RFC without a medical advisor's

assessment is not supported by substantial evidence.”) (citation

and footnote omitted).

The court finds the RFC is unsupported by any valid

medical opinion and is inconsistent with the medical record as a

whole. Accordingly, the case is remanded.

CONCLUSION

For the reasons stated above, plaintiff’s cross-motion

for judgment on the pleadings is GRANTED in part, and

defendant’s motion for judgment on the pleadings is DENIED. The

court remands this action for further proceedings consistent

with this Memorandum and Order. Specifically, the ALJ shall

obtain medical source statements from the treating physicians

and mental health providers, and/or schedule plaintiff to attend

a consultative examination, and provide a proper RFC. The clerk

of court is respectfully directed to close this case.

SO ORDERED.

Dated: Brooklyn, New York

April 25, 2020

/s/

Hon. Kiyo A. Matsumoto

United States District Judge