Salahuddin v. Berryhill

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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

SAFIYYAH SALAHUDDIN, NOT FOR PUBLICATION

Plaintiff,

SUMMARY ORDER

v.

18-cv-7394(KAM)

ANDREW SAUL,

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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

MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C. § 405(g), Safiyyah Salahuddin

(“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”),

on the basis that plaintiff is not disabled within the meaning

of the Act. Plaintiff alleges that she is disabled under the

Act and, therefore, is entitled to receive the aforementioned

benefits.

Presently before the court is plaintiff’s motion for

judgment on the pleadings (ECF No. 17, Pl.’s Mot.), and

defendant’s cross-motion for judgment on the pleadings (ECF No.

19, Def.’s Mot.). For the reasons stated below, plaintiff’s

motion is GRANTED, defendant’s motion is DENIED, and the case is

remanded for calculation of benefits consistent with this

Memorandum and Order.

BACKGROUND

I. Procedural History

On December 5, 2014, plaintiff Safiyyah Salahuddin

filed an application for disability insurance benefits (“DIB”)

alleging that she was disabled due to lordoscoliosis and

herniated discs in the neck and lower back. (ECF No. 1,

Complaint (“Compl.”) 1; ECF No. 20, Administrative Transcript

(“Tr.”) 332-333, 367.) The alleged onset of plaintiff’s

disability was January 1, 2014. (Tr. 333.) Because the

plaintiff requested at the time of her application that she be

considered for all programs available, the Social Security

Administration (“SSA”) issued a denial of supplemental security

income (“SSI”) under Title XVI of the Act on December 12, 2014,

stating that the plaintiff did not meet the non-medical criteria

for eligibility. (Id. 100-11.)

On March 20, 2015, the SSA also denied plaintiff’s

application for DIB on the basis that she was not disabled.

(Id. 112-17.) On March 31, 2015, the plaintiff filed a request

for a hearing before an Administrative Law Judge (“ALJ”). (Id.

118-19.) The plaintiff appeared for a hearing before ALJ Dina

Loewy on November 3, 2016. (Id. 30-46.) ALJ Loewy adjourned

the hearing at plaintiff’s request so that she could retain an

attorney representative. (Id.) On November 14, 2017, the

plaintiff appeared again before ALJ Loewy with counsel. (Id.

47-90.) On January 25, 2018, ALJ Loewy issued a decision

finding that the plaintiff was not disabled. (Id. 9-29.) The

plaintiff requested review of the ALJ decision on February 15,

2018. (Id. 329-31.) On November 1, 2018, the Appeals Council

denied the plaintiff’s request for review, thereby making ALJ

Loewy’s decision the final decision of the Commissioner. (Id.

1-6.) On December 27, 2018, the plaintiff filed the instant

action in federal court. (See generally Compl.)

II. Medical and Non-medical Evidence

On November 12, 2019, the parties filed a Joint

Stipulation of Facts. (ECF No. 19-1, Stip.) The court

incorporates the parties’ stipulation by reference, and proceeds

to discuss additional facts pertinent to the court’s disposition

of the instant motions.

A. Medical Imaging Studies

On August 5, 2012, plaintiff underwent an MRI, which

indicated, inter alia, vertebrae slippage, disc hydration loss,

disc space narrowing, disc bulge, disc herniation, neural

foraminal stenosis, and degeneration of the facet joints.

(Stip. 5.) On January 22, 2015, plaintiff underwent a surgical

operation, specifically, a decompressive lumbar laminectomy with

medial facetectomies and decompression of neurological elements

and nerve roots at the L5 and S1 segments, and a partial

discectomy at L5-S1. (Tr. 711-12.)

From May 29 to June 2, 2015, plaintiff was admitted to

Staten Island University Hospital due to worsening low back pain

radiating to her buttocks and thigh with numbness and

paresthesia (i.e., a burning or prickling sensation). (Id.

697.) A physical examination revealed tenderness of the lumbar

and paraspinal areas with plaintiff refusing a straight leg

raise test. (Id.) An MRI of the lumbar spine showed “severe

bilateral foraminal stenosis with axillary nerve impingement,”

with a small left central disk herniation at L5-S1 indenting the

ventral sac. (Id. 698.)

On July 31, 2015, the plaintiff underwent a lumbar MRI

following hospitalization for worsening pain, post surgery. (Tr.

691-92.) The MRI indicated that the plaintiff suffered disc

hydration loss, disc space narrowing, and disc bulges at

vertebrae abutting and indenting the ventral thecal sac. (Id.

691.) The MRI further noted post-surgical changes, including

but not limited to broad-based disc herniation, neural foraminal

stenoses abutting exiting vertebrae nerve roots, and a ventral

disc herniation. (Id.) The plaintiff underwent a cervical

spinal MRI on November 25, 2015, which indicated that there was

loss of hydration in cervical nerves, as well as significant and

diffuse disc herniation. (Id. 688-89.)

B. Medical Opinion of Lourdes Esteban, M.D.

On June 6, 2017, Dr. Lourdes Esteban, M.D., a

neurologist, performed an electromyography/nerve conduction

velocity study (“EMG/NCVS”) on plaintiff’s upper and lower

extremities, which revealed evidence of mild polyneuropathy

(i.e., damage to peripheral nerves) of the distal extremities.

(Tr. 1117-19, 1124-26.) On November 7, 2017, Dr. Esteban

completed a Medical Source Statement stating that she had

treated plaintiff from May 16, 2017 through October 24, 2017 for

“radiculopathy, cervical & lumbar polyneuropathy.” (Id. 1155.)

Dr. Esteban reported that plaintiff suffered from neck and back

pain, and intermittent numbness and tingling in both feet and

hands, which was occasionally exacerbated by prolonged sitting

and standing. (Id.) Other symptoms included fatigue, sensory

changes, reflex changes, memory loss, dizziness, impaired sleep,

weight change, and impaired appetite. (Id. 1156.) Dr. Esteban

further noted that plaintiff’s MRI and EMG/NCVS revealed

“cervical multi-level disc bulging,” “L5/S1 left disc herniation

with bilateral foraminal extension w[ith] impingement of both L5

nerves,” as well as mild polyneuropathy. (Id. 1156-57.) The

medical records further reflect Dr. Esteban’s assessment that

depression and anxiety contributed to plaintiff’s symptoms.

(Id. 1157.) In addition, Dr. Esteban stated that plaintiff’s

symptoms frequently interfered with her attention and

concentration, and that she had a moderate limitation in her

ability to deal with stress. (Id.)

Dr. Esteban concluded that plaintiff could sit for

fifteen minutes continuously, but only for less than one hour

total in an eight-hour work day; could stand for fifteen minutes

continuously, but for less than one-hour total in an eight-hour

work day, and would need to rest three hours per day. (Tr.

1157-58.) Plaintiff could only occasionally lift up to ten

pounds, balance, and stoop. (Id. 1159.) Dr. Esteban stated

that plaintiff would likely miss one day per month if her pain

or anxiety were exacerbated. (Id.) Dr. Esteban originally

noted that plaintiff would be off task 10% during a typical work

day, but that check mark was subsequently crossed-out with the

initials “MM,” and replaced with a checkmark indicating that

plaintiff would be off task 20% of the time. (Id. 1160.) Dr.

Esteban stated that sitting and standing for a “prolonged period

of time” exacerbated plaintiff’s symptoms. (Id.) Finally, Dr.

Esteban reviewed the Listing of Impairments, 20 C.F.R. Part 404,

Subpart P, Appendix 1 (“Listings”), and opined that plaintiff’s

musculoskeletal impairment met Listing 1.04, entitled Disorder

of the Spine, and her neurological limitation met Listing 11.14,

entitled Peripheral Neuropathy. (Id. 1161-70.)

C. Medical Treatment and Opinion of Andrew Merola, M.D.

On September 13, 2014, the plaintiff saw Andrew

Merola, M.D., after she had been involved in a motor vehicle

accident. (Tr. 702-03, 1172-73.) Dr. Merola noted plaintiff’s

complaints of neck and low back pain with numbness, tingling,

and pins and needles, with headaches. (Id. 702.) Dr. Merola

also noted plaintiff had bladder dysfunction, and observed

abnormal gait and ambulation, in addition to hunching of the

back. (Id.) The doctor further noted that an MRI of plaintiff’s

lumbar spine revealed a herniated disc at L5-S1. (Id. 703.)

On January 22, 2015, Dr. Merola performed spinal

surgery on plaintiff. (Tr. 711-12.) On January 30, 2015,

plaintiff saw Dr. Merola for a follow-up visit. Dr. Merola

observed that plaintiff was doing well with no surgical

complications. (Id. 706.) Dr. Merola ordered no bending,

lifting or twisting, and prescribed physical therapy. (Id. 706,

1177.) On February 27, 2015, the plaintiff again saw Dr. Merola

for postoperative care. (Id. 707, 1178.)

Plaintiff followed up with Dr. Merola on June 11,

2015, who noted plaintiff’s recent hospitalization. (Tr. 708,

1182). Plaintiff complained of “mechanical axial low back

symptoms,” and Dr. Merola’s physical examination once again

revealed abnormal gait and ambulation and hunching of

plaintiff’s back. (Id. 708.) Dr. Merola noted that plaintiff’s

lumbar lordosis (lower back curve) reversed itself somewhat with

some ambulation, but that certain motions would cause plaintiff

severe low back spasms. (Id.) Dr. Merola suggested a flexion-

extension MRI of the lumbar spine. (Id.) On August 14, 2015,

during a telephone conversation with plaintiff, Dr. Merola

recommended a spinal fusion. (Id. 710.)

On September 25, 2015, plaintiff again saw Dr. Merola,

who noted progressively worsening mechanical axial symptoms

exacerbated by activity. (Tr. 699, 709, 1179.) Upon

examination, Dr. Merola observed that plaintiff walked with an

antalgic and kyphotic gait. (Id. 709.) Plaintiff had

limitations in range of motion of the lumbar with positive

testing for pain, spasm, tenderness, and dysesthesias (i.e.,

uncomfortable sensations resulting from nerve damage) at various

sections of plaintiff’s vertebrae. (Id.) Dr. Merola reviewed

plaintiff’s July 2015 lumbar MRI and, once again, recommended

spinal fusion. (Id. 709-10.)

During plaintiff’s November 6, 2017 visit, Dr. Merola

noted that she had mechanical axial neck and back pain with some

pain in the neck radiating to the upper and lower extremities.

(Tr. 1180.) Dr. Merola noted that plaintiff had to strictly

modify her activities as a result of her pain. (Id.) Dr.

Merola further observed that plaintiff walked with abnormal

gait. (Id.) Plaintiff had limited ranges of motion in the

cervical and lumbar spines with spasm, decreased sensation and

muscle atrophy, though the latter condition was more severe in

plaintiff’s left side extremities. (Id.) Dr. Merola again

recommended a spinal fusion at L5-S1. (Id. 1181.) The doctor

advised plaintiff to restrict her activities to include neither

bending, lifting, nor twisting; and, to continue her medication

treatment with Dr. Esteban. (Id.)

D. Opinion of Consultative Examiner, Sujit Chakrabarti, M.D.

On March 2, 2015, Sujit Chakrabarti, M.D., a

consultative physician, examined plaintiff. (Tr. 635-37.) Dr.

Chakrabarti noted plaintiff’s history of back, knee, and hip

pain, with possible stress fractures after sustaining injury

from a fall in the Army. (Id. 635.) Dr. Chakrabarti also noted

that plaintiff was injured in a car accident in May 2014, with

surgery performed by Dr. Merola on January 22, 2015. (Id.)

Plaintiff complained of occasional leg numbness and limitation

sitting for thirty to forty-five minutes before changing

positions. (Id. 635-36.) Plaintiff told Dr. Chakrabarti that

she drove herself to the examination, has no difficulty standing

or moving from room to room, and could sit for up to forty-five

minutes at a time. (Id. 636.) Dr. Chakrabarti noted that

plaintiff walks her dogs for several blocks at a time in the

mornings and afternoons, goes grocery shopping once a week, and

performs her own household chores. (Id.) Upon examination, Dr.

Chakrabarti observed that plaintiff’s gait was normal and she

sat comfortably in a chair. (Id.) Plaintiff could squat 50 to

75% of a full range of motion, but she exhibited right knee pain

at that time. (Id.) Plaintiff further exhibited good finger

dexterity and demonstrated good grip strength. (Id.) Her

cervical spine exhibited a full range of motion. (Id. 643.)

Plaintiff’s lumbar spine, hips, and knees each exhibited a

limited range of motion, and her straight leg raising tests were

positive. (Id. 636, 642, 643.) Dr. Chakrabarti’s ultimate

prognosis was “guarded.” (Id. 636-37.)

E. Opinion of Consultative Examiner Yousif Abdel-Jawad, M.D.

On October 30, 2017, Yousif Abdel-Jawad, M.D., a

consultative physician, examined the plaintiff. (Tr. 1184-87.)

Dr. Abdel-Jawad noted plaintiff’s complaints of sciatica and

neuropathy, with herniated disc problems in the cervical and

lumbar spines. (Id. 1184.) Plaintiff told Dr. Abdel-Jawad that

she could walk for up to one block at a time, and could neither

sit nor stand for long periods. (Id. 1186-87.) Dr. Abdel-

Jawad’s physical examination revealed that: plaintiff’s gait was

normal; she demonstrated normal muscle strength throughout her

arms and legs; she exhibited slightly decreased ranges of motion

in the back and lower extremities, with neither joint pain,

swelling, nor tenderness; she could not lie flat on the

examining table; and straight leg raise tests were positive

bilaterally, with reduced deep tendon reflexes in the left knee.

(Id. 1186.) Dr. Abdel-Jawad diagnosed chronic back and neck

pain due to disc disease at multiple levels, peripheral

neuropathy in the upper and lower extremities, anxiety and

depression, and noted that plaintiff needed a complete

psychiatric evaluation for proper and complete prognosis. (Id.

1187.)

Dr. Abdel-Jawad found that the plaintiff could lift

less than ten pounds occasionally, sit or stand for fifteen to

twenty minutes only, and walk one block only. (Tr. 1188.) Dr.

Abdel-Jawad stated plaintiff “can’t do any” pushing or pulling.

(Id. 1189.) The doctor stated, “[plaintiff] says she can’t do

these physical activities because of her back pain and

extremities pain and numbness.” (Id.) Dr. Abdel-Jawad noted

that plaintiff can occasionally reach in all directions and

handle (gross manipulations of handling, fingering and feeling)

due to neuropathy in her extremities. (Id. 1189-91.) Dr.

Abdel-Jawad stated that, due to plaintiff’s back, neck, and limb

pain, plaintiff could never climb ramps, stairs, ladders, ropes

or scaffolds, balance, stoop, kneel, crouch and crawl. (Id.

1189.) Dr. Abdel-Jawad concluded by stating that plaintiff was

limited to exposure to temperature extremes (cold), dust, fumes,

odors, chemicals and gases. (Id. 1192.)

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 he 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 his 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).

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. At 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 v.

Chater, 94 F.3d 34, 39 (2d Cir. 1996) (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 her alleged

onset date of January 1, 2014. (Tr. 14.) At step two, the ALJ

found that the plaintiff suffered from the severe impairments of

anxiety disorder, depressive disorder, degenerative disc

disease, degenerative changes of the knees, neuropathy, and

obesity. (Id. 14.) The ALJ noted that the plaintiff was

diagnosed with fibromyalgia but found that the record did not

contain sufficient evidence to support the diagnosis. (Id.)

At step three, the ALJ determined that, through the

date plaintiff was last insured, she 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 (see 20 C.F.R. §§ 416.920(d) and 416.926),

although the ALJ considered Listings 1.02, 1.04, 11.14, and

12.04. (Tr. 14-16.) The ALJ found that through the date last

insured, the plaintiff would be capable of performing “sedentary

work, as defined in 20 CFR 404.1567(a),” except as follows:

[Plaintiff] can never operate foot controls; she can

occasionally push and pull; she can never climb

ladders, ropes or scaffolds; she can occasional climb

ramps and stairs; she can never kneel, crouch, or

crawl; she can occasionally balance and stoop; she can

frequently reach; she can occasionally reach overhead;

she can never perform repetitive extreme neck movement

all the way up, down, to the right or to the left; she

can frequently handle, finger, and feel; she needs to

avoid all exposure to hazardous machinery, operational

control of moving machinery and unprotected heights;

she is limited to unskilled work (as defined in 20

CFR 404.1568(a)); she cannot perform conveyor belt

work; she is limited to low stress jobs defined as

having only occasional decision making and changes in

the work setting and can have only occasional

interaction with the public and coworkers.

(Id. 16-17.)

At step four, the ALJ concluded that the plaintiff was

not able to perform her past relevant work as a home health

aide, or a daycare director. (Tr 21-22.) At step five, the ALJ

concluded that the plaintiff was able to perform jobs available

in substantial numbers in the national economy, including

addresser, document preparer, and surveillance system monitor.

(Id. 22-23.) As a result, the ALJ concluded that the plaintiff

was not disabled within the meaning of the Act, as defined in 20

CFR 416.920(g). (Id. 23.)

Plaintiff challenges the ALJ’s determination on

several grounds. (Pl.’s Mot. 7-18.) First, plaintiff asserts

that the ALJ erred in finding that plaintiff did not satisfy the

requirements of any of Listings 1.04 (disorder of the spine),

12.04 (depressive, bipolar, and related disorders), or 12.06

(anxiety and obsessive-compulsive disorders). (Id. 7-12.)

Second, plaintiff argues that the ALJ failed to properly

consider whether plaintiff’s spinal disorders and psychiatric

impairments were equivalent to any of the Listings. (Id. 12-

13.) Third, plaintiff argues that the ALJ failed to accord

proper weight to the opinions of plaintiffs’ treating

physicians. (Id. 13-16.) Lastly, plaintiff argues the ALJ did

not consider whether the plaintiff’s impairments, in

combination, rendered her disabled. (Id. 16-18.)

II. Plaintiff Meets or Equals Listing 1.04

The record before the court warrants the conclusion

that plaintiff has an impairment, which meets or exceeds Listing

1.04(A). 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.04.

The Act lists particular impairments, “any of which is

sufficient, at step three to create an irrebuttable presumption

of disability.” DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d

Cir. 1998) (citing 20 C.F.R. 404.1520(d), 416.920(d)). “The

regulations also provide for a finding of such a disability per

se if an individual has an impairment that is ‘equal to’ a

listed impairment.” Id. (citing 20 C.F.R. § 404.1520(d) (“If

you have an impairment(s) which . . . is listed in appendix 1 or

is equal to a listed impairment(s), we will find you disabled

without considering your age, education, and work experience."))

(internal quotation marks omitted); see also 20 C.F.R. §

416.920(d). Accordingly, “[a] claimant is automatically

entitled to benefits if his or her impairment(s) meets the

criteria set forth in Appendix 1 to Subpart P of Part 404. 20

C.F.R. § 404.1520(d) . . . .” Schneider v. Colvin, No. 3:13-CV-

00790 MPS, 2014 WL 4269083, at *8 (D. Conn. Aug. 29, 2014)

(quoting McKinney v. Astrue, No. 5–cv–174, 2008 WL 312758, at *4

(N.D.N.Y. Feb. 1, 2008)).

Plaintiff bears the burden to present medical findings

demonstrating that his impairments match a listing or are equal

in severity to a listed impairment. Zwick v. Apfel, 1998 WL

426800, at *6 (S.D.N.Y. 1998). In cases in which the disability

claim is premised upon a listed impairment of Appendix 1, “the

Secretary should set forth sufficient rationale in support of

his decision to find or not to find a listed impairment.” Crump

v. Astrue, No. 706-CV-1003 NAM/DRH, 2009 WL 2424196, at *2

(N.D.N.Y. Aug. 5, 2009) (citing, inter alia, Berry v. Schweiker,

675 F.2d 464, 469 (2d Cir. 1982)).

A. Plaintiff Meets Listing 1.04(A)

Listing 1.04 reads, in relevant part:

Disorders of the spine (e.g., herniated nucleus

pulposus, spinal arachnoiditis, spinal stenosis,

osteoarthritis, degenerative disc disease, facet

arthritis, vertebral fracture), resulting in

compromise of a nerve root (including the cauda

equina) or the spinal cord. With:

A. Evidence of nerve root compression characterized by

neuro-anatomic distribution of pain, limitation of

motion of the spine, motor loss (atrophy with

associated muscle weakness or muscle weakness)

accompanied by sensory or reflex loss and, if there is

involvement of the lower back, positive straight-leg

raising test (sitting and supine)[.]

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04(A).

Substantial evidence establishes that plaintiff

suffers from at least one disorder of the spine under Listing

1.04. MRI results, dated April 17, 2012, indicated plaintiff

has herniated nucleus pulposus (“herniated disc”). (Tr. 472,

487, 606.) In 2014, another MRI conducted by Dr. Merola showed

herniation at the L5-S1 and C4-C5 segments. (Id. 703.) Yet

another MRI, from August 2015, showed a herniated disc, which

caused proximal neural foraminal stenosis, and which abutted the

exiting bilateral L5 nerve roots with facet hypertrophy. (Id.

654, 691.) On November 25, 2015, a cervical MRI found, inter

alia, disc space narrowing from C3/4 through C6/7,

bulging/herniated discs at C2/3 and C3/4, and right neural

foraminal stenosis at C4/5, C5/6, and C6/7. (Id. 652-53; 688-

89.) And a June 14, 2017 MRI revealed a disc herniation at L5-

S1 with impingement on both L5 nerves, and mild neuropathy.

(Id. 1129-30.) This evidence is reasonably susceptible to only

one interpretation: plaintiff, at a minimum, has a herniated

disc or discs.

The record also supports that plaintiff has spinal

stenosis. Plaintiff’s cervical exam and MRI on March 6, 2012

reflected both right and left neuroforaminal stenosis. (Tr.

473, 628.) An MRI on August 5, 2012 showed proximal neural

foraminal stenosis. (Id. 654, 691.) A June 2015 MRI of

plaintiff’s lumbar spine, administered at Staten Island Hospital

in June 2015, showed “severe bilateral foraminal stenosis with

axillary nerve impingement.” (Id. 698.) And a November 25,

2015 MRI showed right neural foraminal stenosis at C4/5, C5/6,

and C6/7. (Id. 652-53; 688-89.) The record also suggests

plaintiff may have facet arthritis and degenerative disc

disease. An x-ray on July 28, 2010 showed plaintiff had early

stage facet arthropathy in her lumber spine and the beginning

stages of degenerative spondylosis. (Id. 613.) On May 25,

2011, plaintiff’s primary care physician diagnosed her with

arthropathy. (Id. 518.) A December 10, 2014 MRI likewise showed

facet arthrosis at L3/L4 and L4/L5, as well as degenerative

changes in other spinal areas. (Id. 477-78, 485, 604, 682-83.)

As required by Listing 1.04(A), plaintiff’s

aforementioned conditions have resulted in nerve root

compression. An MRI in August 2012 showed stenosis abutting the

bilateral L5 nerve roots. (Tr. 654, 691.) Testing in June 2014

showed pain, numbness, decreased reflexes, and radiculopathy,

all indicative of impact on the C5/6 nerve root. (Id. 730-31,

733-34.) In January 2015, Dr. Merola conducted lumbar surgery

on plaintiff, which included decompression of neurological

elements and nerve roots at L5 and S1 segments and nerve roots.

(Id. 711-12.) Later, on July 31, 2015, post-surgical

examinations showed continuing proximal neural foraminal

stenosis abutting the bilateral L5 nerve roots. (Id. 654, 691.)

Finally, the record is replete with evidence that

plaintiff’s spinal conditions, and resultant nerve root

compression, have manifested in, among other things, “neuro-

anatomic distribution of pain, limitation of motion of the

spine, motor loss (atrophy with associated muscle weakness or

muscle weakness) accompanied by sensory or reflex loss and, . .

. positive straight-leg raising test[s.]” Plaintiff’s treating

and consultative physicians have consistently assessed and

observed: radiating pain in plaintiff’s neck and lower back (id.

624-25, 697, 729, 855, 1002, 1180); numbness and or tingling

(id. 624-25, 635-36, 853, 1121); limited range of spinal motion

(id. 709, 855, 927-36, 1002-03, 1181); and muscle atrophy and

positive straight leg raising tests (id. 634, 702, 955, 1036-37,

1180). The record thus amply supports a finding that plaintiff

meets the requirements of Listing 1.04(A). The ALJ’s finding to

the contrary was highly abbreviated, conclusory, and not

supported by substantial evidence.1

B. Remand for Calculation of Benefits is Appropriate

Where the court has no apparent basis to conclude that

a more complete record might support the Commissioner's

decision, the court may opt simply to remand for a calculation

of benefits. Rosa, 168 F.3d at 83. Where the record contains

persuasive proof of disability and a remand for further

evidentiary proceedings would serve no purpose, a remand for

calculation of benefits is appropriate. Carroll v. Sec'y of

Health and Human Servs., 705 F.2d 638, 644 (2d Cir. 1983); Muntz

v. Astrue, 540 F. Supp. 2d 411, 421 (W.D.N.Y. 2008) (remanding

for benefits where the plaintiff met Listing 1.04). The record

in this matter provides substantial evidence that plaintiff’s

impairments satisfied Listing § 1.04(A) of Appendix 1. Because

the record provides substantial evidence of disability, a new

hearing would serve no useful purpose. Therefore, the court

reverses and remands solely for the calculation and payment of

benefits. See Parker v. Harris, 626 F.2d 225, 241 (2d Cir.

1980).

1 The court’s finding that plaintiff’s impairment meets the requirements

of Listing 1.04(A) is dispositive in these proceedings, and obviates the need

to consider plaintiff’s other grounds for appeal.

CONCLUSION

For the reasons stated above, plaintiff’s motion

for judgment on the pleadings is GRANTED, and defendant’s motion

for judgment on the pleadings is DENIED. The court remands this

action to the Commissioner solely for the calculation and

payment of benefits. The clerk of court is respectfully

directed to enter judgment for the plaintiff and close this

case.

SO ORDERED.

Dated: Brooklyn, New York

July 10, 2020

/s/

Hon. Kiyo Matsumoto

United States District Judge