Ortiz v. Berryhill

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CATHERINE E. ORTIZ,

MEMORANDUM AND ORDER

Plaintiff, 19-cv-2316(KAM)

v.

ANDREW SAUL, COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C. § 405(g), Catherine E. Ortiz

(“plaintiff”) appeals the final decision of the Commissioner of

Social Security (“defendant” or the “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. On appeal, plaintiff argues that she is disabled

under the Act and, therefore, is entitled to receive disability

insurance benefits.

Presently before the court are plaintiff’s motion for

judgment on the pleadings and defendant’s cross-motion for

judgment on the pleadings. For the reasons stated herein,

plaintiff’s motion is GRANTED, defendant’s cross-motion is

DENIED, and the case is REMANDED for further proceedings

consistent with this Memorandum and Order.

BACKGROUND

I. Procedural History

On July 14, 2015 plaintiff Catherine A. Ortiz filed an

application for disability insurance benefits (“DIB”), alleging

that she was disabled beginning September 25, 2014, due to

pulmonary and heart conditions, anxiety, depression, and panic

attacks, as well as back, hip, wrist, and ankle impairments.

(ECF No. 15, Administrative Record (“Ar.”), at 72, 156, 181.)

On March 9, 2016, the Social Security Administration

(“SSA”) denied plaintiff’s request for DIB, concluding that

plaintiff’s condition was not severe enough to keep her from

working. (Id. at 76, 80.) On April 8, 2016, plaintiff filed a

request for a hearing before an Administrative Law Judge

(“ALJ”). (Id. at 88.) On February 20, 2018, ALJ Michael D.

Burrichter presided over plaintiff’s hearing in Lawrence,

Kansas. (Id. at 37-56.) Plaintiff appeared in person, and was

represented by Claudia Costa, Esq. (Id. at 35-56.) Susan Shea,

a vocational expert, also provided testimony during plaintiff’s

hearing. (Id.) In a decision dated May 11, 2018, the ALJ

concluded the plaintiff was not disabled. (Id. at 12-29.) The

plaintiff requested review of the ALJ’s decision on May 16,

2018. (Id. at 1, 88-89.) On April 1, 2019, the Appeals Council

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

decision the final decision of the Commissioner. (Id. at 1-3.)

On April 19, 2019, plaintiff filed the instant action in federal

court appealing the Commissioner’s decision. (ECF No. 1.)

II. Relevant Medical and Non-Medical Evidence

On February 10, 2020, the parties filed a joint

stipulation of relevant facts and the court hereby incorporates

it by reference. (See ECF No. 14-1, Joint Stipulation of

Relevant Facts (“Joint Stip.”).) Having reviewed the parties’

joint stipulation of facts, the ALJ’s decision, and relevant

evidence in the administrative record, the court notes the

following evidence:

A. Medical Imaging Studies

Plaintiff received numerous diagnostic imaging

examinations from 2014 to 2017. (Joint Stip. at 3-13.) A

November 22, 2014 MRI of plaintiff’s lumbar spine showed bulging

and evidence of disc herniation. (Id. at 3.) An October 17,

2015 MRI revealed mild spondylosis with slight protrusions. (Id.

at 6.) On January 26, 2016, an ultrasound of plaintiff’s

abdomen showed an enlarged liver (hepatomegaly) and accumulation

of fat in the liver (hepatic steatosis). (Id. at 7.) A January

26, 2016 CT scan of plaintiff’s abdomen revealed inflammation

and duodenitis. (Id. at 7; Ar. at 320.) On April 1, 2017, a

MRI of plaintiff’s lumbar spine revealed a degenerating disc and

bulges. (Joint Stip. at 12.) On November 7, 2017, a CT scan of

the plaintiff’s lumbar spine showed signs of disc herniation

resulting in left neural foramen stenosis and facet hypertrophy,

a swelling in the joint that increases pressure on nerves in the

spine. (Id. at 13.)

B. Medical Treatment and Opinion of Dr. Mehran Manouel, M.D.

On September 24, 2014, plaintiff presented to Dr.

Mehran Manouel, M.D., at Able Orthopedics and Sports Medicine,

with complaints of low back, left elbow, left wrist, and left

elbow pain, secondary to tripping and falling down a flight of

stairs, while at work, on September 18, 2014. (Joint Stip. 2-3.)

During a December 8, 2014 examination, Dr. Manouel noticed

decreased range of motion in the lumbar spine with a grip

strength of 4/5. (Id. at 3.) Dr. Manouel assessed lumbar

sprain, left hip sprain, left wrist sprain, left elbow sprain,

left ankle sprain, and assessed plaintiff’s disability status as

total. (Id. at 3 (citing Ar. 386-87).)

C. Medical Examination and Opinion of Dr. Jay Nathan, M.D.

On February 7, 2015, Dr. Jay Nathan conducted an

independent medical examination in connection with plaintiff’s

worker’s compensation claim. (Joint Stip. at 4.) During the

examination, plaintiff complained of pain during the range of

motion test, with Dr. Nathan opining that there was “minimal

vertebral tenderness.” (Ar. at 482.) Dr. Nathan believed

“maximum medical improvement had not been reached and that

continued physical therapy and home exercises were warranted.”

(Joint Stip. at 4.) Dr. Nathan also opined that plaintiff had a

25% degree of disability and could return to light duty work

with no lifting greater than 20 pounds and that plaintiff could

lift and carry up to 10 pounds frequently and sit and stand

during an eight-hour workday with rests. (Id.)

D. Medical Treatment and Opinion of Dr. Andrew Cordiale,

D.O.

On August 4, 2015, plaintiff attended a consultation

with Dr. Andrew Cordiale, D.O. at New York Spine Specialist.

(Joint Stip. at 5.) During the examination, plaintiff exhibited

a limited range of motion in the lumbar spine. (Id.) Dr.

Cordial opined that plaintiff should refrain from heavy lifting,

carrying, and bending. (Id.) On December 15, 2015, plaintiff

attended a follow-up appointment with Dr. Cordiale and continued

to report pain in her lower back, neck, and right foot pain.

(Id. at 6.) Dr. Cordiale found the plaintiff’s motor function

during the lumbar neurological exam to be “not within normal

limits on inspection[,]” with abnormal sensation at the L5 and

S1 vertebrae. (Ar. at 301.) Dr. Cordiale recommended plaintiff

refrain from heavy lifting, carrying, and bending. (Id. at 6.)

In a March 8, 2016 visit, plaintiff reported pain radiating from

her back and both legs, with examination showing a limited range

of motion in the lumbar spine. (Id. at 9.) Dr. Cordiale

recommended that plaintiff refrain from activities that

aggravated pain. (Id.) Dr. Cordiale also diagnosed plaintiff

with lumbar disc herniation with radiculopathy, or a nerve root

compression in the lumbar spine. (Ar. at 419.)

E. Medical Source Statement of Dr. Faisal Waseem, M.D.

In a medical source statement completed on February

15, 2018, Dr. Waseem concluded that plaintiff had numerous

physical limitations, including that she could never lift or

carry any weight, could sit for four hours in a workday and

could only stand and walk for 30 minutes to an hour in a

workday. (Joint Stip. at 13; Ar. at 623-28.) Additionally, Dr.

Waseem observed that the plaintiff could not be exposed to

unprotected heights, nor was she able to walk on uneven surfaces

or climbing a few steps at a reasonable pace. In addition to

records relevant to this appeal, Dr. Waseem had a treating

history as plaintiff’s primary care physician from 2014 to 2018.

(Joint Stip. at 2 n.1.)

F. Consultative Examiner Opinion of Dr. John Fkiaras, M.D.

Dr. John Fkiaras, M.D. conducted a consultative

internal medicine examination of February 24, 2016. (Joint

Stip. at 8.) Plaintiff rated her back pain as “9 out of 10[,]”

and could only squat one tenth of the way down. (Joint Stip. at

8; Ar. at 410-11.) Plaintiff also had lumbar spine flexion of

30 degrees, lateral flexion bilateral lumbar spine of 15

degrees, and lumbar spine rotation bilaterally of 15 degrees.

(Ar. at 411.) The plaintiff also had positive straight leg

raises on the left side in seated and supine positions. (Id.)

Dr. Fkiaras opined that plaintiff had moderate limitations

walking, sitting, and climbing stairs, and a moderate-to-severe

limitation standing for extended periods. (Joint Stip. at 8;

Ar. 411-12.)

G. Medical Treatment and Opinion of Dr. Joseph Weinstein,

D.O.

On June 29, 2016, plaintiff was seen by Dr. Joseph

Weinstein, D.O., at Comprehensive Orthopedic and Spine Care.

Plaintiff complained of pain and stiffness in the lumbar spine,

rating such pain as a “five out of ten.” (Joint Stip. at 10.)

Plaintiff had a positive straight leg test on her left side and

Dr. Weinstein diagnosed her with lumbar muscle spasms, and

lumbar discogenic pain, and lumbar radiculopathy, or a nerve

root compression in the lumbar spine. (Joint Stip. at 10-11;

Ar. at 528-29.) Plaintiff visited Dr. Weinstein again on August

9, 2016 and the examination findings remained largely unchanged.

(Joint Stip. at 11.) In a January 10, 2017 visit, plaintiff had

another positive straight leg test on the left side and a

diagnosis of lumbar radiculopathy. (Ar. at 518.) Plaintiff

visited Dr. Weinstein on March 13, April 4, May 15, July 17, and

September 25, 2017 with unchanged diagnoses with the exception

of a reduction in lumbar flexion and extension. (Joint Stip. at

12.) In a November 13, 2017 visit, Dr. Weinstein again

diagnosed plaintiff with lumbar radiculopathy. (ECF No. 11,

Plaintiff’s Memorandum of Law (“Pl. Mem.”), at 17; Ar. at 499.)

Plaintiff rated pain symptoms as a “seven out of ten.” (Ar. at

498.)

H. Statements and Opinions of Orlando Ortiz

Plaintiff’s husband, Orlando Ortiz, gave a third party

function report in connection with plaintiff’s DIB claim. (Ar.

at 208.) Mr. Ortiz asserted that plaintiff “cannot stand long

enough to cook or clean” and that he has to “come home from work

and do everything.” (Id.) Mr. Ortiz described severe

restrictions in plaintiff’s ability to bathe, lift objects, and

walk more than five minutes. (Id. at 209-13.)

III. The ALJ’s Disability Determination

Applying the five-step procedure for evaluating

disability claims pursuant to 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

September 24, 2014. (Ar. at 18.) At step two, the ALJ

determined that plaintiff suffered from severe impairments,

including: degenerative disc disease of the lumbar spine with

disc bulge, chronic obstructive pulmonary disease, and obesity.

(Id.) Additionally, the ALJ found that the medical record

reflected the additional impairments of hepatomegaly/hepatic

steatosis, duodenitis, gastroesophageal reflux disease, and

dermatitis. (Id.) The ALJ found that any other impairments

alleged by the plaintiff were not severe enough under the SSA or

accompanying regulations because the impairments had “no more

than a minimal effect” to perform basic work activities for a

continuous period of at least 12 months. (Id. at 20.)

At step three, the ALJ determined that the defendant

did not have an impairment or combination of impairments that

met or medically equaled the criteria of any physical

impairment, including disorders of the spine under Listing

1.04(A) and chronic respiratory disorders under Listing 3.02.

(Id.) In addition, based on the information in the record and

the plaintiff’s testimony during the ALJ hearing about her

weight, the ALJ found that the combined effects of obesity with

other impairments or obesity solely as a claim were not

supported by the evidence. (Id. at 21.)

At step four, the ALJ determined that plaintiff had

the residual functional capacity (“RFC”) to perform light work.

(Id.) The ALJ also found that the plaintiff could lift and

carry up to twenty pounds occasionally, lift or carry up to ten

pounds frequently, stand and/or walk for six hours out of an

eight-hour workday, and sit for six hours out of an eight hour

workday. (Id.) Additionally, the ALJ found that the plaintiff

should never climb ladders or ropes, could occasionally climb

ramps, crouch, kneel, or crawl, and that the plaintiff should

never work at unprotected heights. (Id.) Finally, the ALJ

concluded that the plaintiff should never be exposed to

concentrated humidity, wetness, dust, odors, fumes, pulmonary

irritants, extreme cold, and extreme heat. (Id.)

In reaching his RFC finding, the ALJ gave “partial

weight” to Dr. Fkiaras, the consultative internal medicine

examiner, where his assessment was “generally consistent with

the overall record showing the [plaintiff had] a severe back

impairment.” (Id. at 24.) The ALJ explained that Dr.

Cordiale’s diagnosis of spine and disc issues was given “partial

weight” because it was generally consistent with the overall

record. (Id.) In addition, the ALJ noted that Dr. Cordiale’s

assessment as to plaintiff’s ability to lift “heavy” objects as

“too vague.” (Id.) The ALJ also gave Dr. Waseem’s prepared

medical source statement “partial weight,” because it was

generally consistent with plaintiff’s severe limitations in

lifting, standing, sitting, and bending, yet differed from more

recent examinations that showed normal to mild findings. (Id.

at 25-26.) The ALJ further concluded that Dr. Nathan’s workers’

compensation evaluation held “little weight” because the

assessment involved only temporary restrictions and that the

plaintiff “could be ready for full [duty] in 3 to 4 months.”

(Id. at 26, 484.)

Finally, the ALJ gave partial weight to the statements

by Orlando Ortiz, the plaintiff’s husband. (Id. at 26.) The

ALJ reasoned that Mr. Ortiz did not possess the necessary

medical training to assess the plaintiff’s alleged physical and

mental disabilities. (Id.) The ALJ also opined that he could

not consider Mr. Ortiz as a disinterested third party. (Id.)

Lastly, at step five, the ALJ concluded that the

plaintiff was able to perform jobs available in substantial

numbers in the national economy, including as a light care

housekeeper, hand cleaner, and a light machine tender. (Id. at

27-29.) Thus, the ALJ concluded that the plaintiff was not

disabled as defined in 20 CFR § 404.1520(f). (Id. at 29.)

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. If the record before the

court provides “persuasive proof of disability and a remand for

further evidentiary proceedings would serve no purpose,”

however, 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

Plaintiff contends that remand of this matter is

warranted because: (1) the ALJ failed to properly evaluate

Listing 1.04(A) at step three; (2) the ALJ’s decision was based

on an improper legal standard at step two of the sequential

evaluation process; and (3) the ALJ’s RFC determination was not

supported by substantial evidence. (Pl. Mem. at 16-28.) For

the reasons discussed below, the court finds the ALJ failed to

provide adequate analysis for his finding that plaintiff’s

medical evidence did not meet or equal Listing 1.04(A).

Accordingly, the court finds that remand of this matter for

further administrative proceedings is required.

Having reviewed the ALJ’s decision, the relevant

medical evidence, and administrative record, the court concludes

that the ALJ erred by failing to adequately explain whether

plaintiff satisfied criteria for Listing 1.04(A) during step

three of the sequential analysis, and therefore remands this

action for further proceeding consistent with this Memorandum

and Opinion. Because the court concludes that the ALJ erred in

failing to make findings as to whether plaintiff’s disabilities

satisfy the criteria under Listing 1.04(A) and remands for this

purpose, the court declines to address plaintiff’s remaining

contentions on appeal.

I. The ALJ’s Assessment of Listing 1.04

The ALJ found that plaintiff’s impairments did not

meet or equal Listing 1.04 (disorders of the spine). (Ar. at

20.) “The Social Security regulations list certain 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).

The claimant bears the burden at step three to prove

he or she meets the requirements necessary to meet or equal the

Listings. Nonetheless, the ALJ is required to explain why a

claimant failed to meet or equal the Listings “[w]here the

claimant’s symptoms as described by the medical evidence appear

to match those described in the Listings.” Rockwood v. Astrue,

614 F. Supp.2d 252, 273 (N.D.N.Y. 2009) (citation omitted).

Notably, it is the ALJ’s responsibility to “build an accurate

and logical bridge from the evidence to [his or her] conclusion

to enable a meaningful review.” Hamedallah ex rel. E.B. v.

Astrue, 876 F. Supp. 2d 133, 142 (N.D.N.Y. 2012). “While the

ALJ may ultimately find that [a considered listing] do[es] not

apply to Plaintiff, he must still provide some analysis of

Plaintiff’s symptoms and medical evidence in the context of the

Listing criteria.” Critoph v. Berryhill, No. 16-cv-00417(MAT),

2017 WL 4324688, at *3 (W.D.N.Y. Sept. 28, 2017) (quoting Peach

v. Colvin, No. 15-cv-104S, 2016 WL 2956230, at *4 (W.D.N.Y. May

23, 2016)). Failure to do so may warrant remand. See, e.g.,

Guevara v. Comm'r of Soc. Sec., No. 19-cv-601S, 2020 WL 5628063,

at *4 (W.D.N.Y. Sept. 21, 2020) (remanding where the “ALJ failed

to make or explain specific findings regarding Listing

1.04(A)”); Torres v. Colvin, No. 14-cv-479S, 2015 WL 4604000, at

*4 (W.D.N.Y. July 30, 2015) (remanding where “the record

evidence suggests that Plaintiff's symptoms could meet the

Listing requirements in 1.04(A)” but the ALJ's “only reference

to it is a recitation of the standard”); Cherico v. Colvin, No.

12-cv-5734(MHD), 2014 WL 3939036, at *28 (S.D.N.Y. Aug. 7, 2014)

(holding that an ALJ merely stating that he or she had

considered the requirements of a listing was “patently

inadequate to substitute for specific findings in view of the

fact that plaintiff has at least a colorable case for

application of listing 1.04(A)” and that where there is record

support for each of the necessary symptoms, the ALJ was required

to address that evidence, and his failure to specifically do so

was error that would justify a remand).

For a disorder of the spine (e.g., herniated nucleus

pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis,

degenerative disc disease, facet arthritis, vertebral fracture),

to meet Listing 1.04(a), it must result in compromise of a nerve

root (including the cauda equina) or the spinal cord with:

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. Part 404, Subpart P, Appendix 1. Where, as here, a

claimant alleges that she meets Listing 1.04(A) based on a lower

back injury, disorder, or condition, she must meet all five

criteria included in that listing.

Here, plaintiff argues that there is “overwhelming

evidence” to show that the impairments described in the record

meet Listing 1.04. (Pl. Memo. at 17.) Specifically, plaintiff

relies on MRI scans, CT scans, and discography results that

support findings of disc herniation, hypertrophy, and

degenerative disc disease. (Id. at 17.) Plaintiff also

highlights records that show a diminished range of motion,

evidence of motor loss, as well as positive straight leg raises

over the course of three years. (See Pl. Mem. at 18-19 (citing

to Ar. 290, 301-302, 438, 455, 499, 409-12).) Defendant asserts

that plaintiff has not carried her burden of proof in

establishing a disorder of the spine and therefore her

impairments have failed to meet or equal the criteria set forth

in Listing 1.04. (See ECF No. 13, Defendant’s Memorandum of Law

(“Def. Mem.”) at 8 (citing Poupore v. Astrue, 556 F.3d 303, 306

(2d Cir. 2009).)

A. Plaintiff’s Listing 1.04(A) Criteria

To satisfy the requirements under Listing 1.04, the

claimant must demonstrate that all five criteria were met

simultaneously and for the necessary duration. Where there is

conflicting evidence as to listing criteria, a court may weigh

whether or not plaintiff’s impairments meet each of the

requirements for Listing 1.04(A). Ryan v. Astrue, 5 F. Supp. 3d

493, 508 (S.D.N.Y. 2014). The Commissioner reasoned that

plaintiff’s showing of losses in sensation, motor strength, and

normal reflexes were not sufficient to establish a disability as

required under Listing 1.04(A). (Def. Mem. at 9.) In response,

plaintiff argues that the ALJ erred by failing to properly

evaluate plaintiff’s medical criteria under Listing 1.04(A),

despite the “overwhelming evidence” that plaintiff’s impairment

met Listing 1.04(A). (See Pl. Mem. at 15-16.)

Having reviewed the administrative record and relevant

evidence, the court concludes that plaintiff carried her burden

of providing evidence to support a colorable finding of

disability under Listing 1.04(A). In other words, the court

concludes that there is evidence in the record of a “disorder”

potentially capable of meeting the threshold requirement of

Listing 1.04. For instance, Dr. Cordiale’s December 15, 2015

assessment reveals decreased motor strength, abnormal reflexes

in the lower extremities, and abnormal sensation in the L5 and

S1 vertebrae. (Ar. at 301.) The record also contains examples

of plaintiffs diminished limitation of motion of her lumbar

spine, including a December 8, 2014 examination where Dr.

Manouel documented plaintiff’s decreased range of motion in the

lumbar spine with a grip strength of 4/5. (Joint Stip. at 3.)

Dr. Manouel assessed lumbar sprain, left hip sprain, left wrist

sprain, left elbow sprain, left ankle sprain, and assessed

plaintiff’s disability status as “total.” (Ar. at 393.)

Further, the record contains evidence that plaintiff had a

positive straight leg raise. Dr. Fkiaras examined plaintiff on

February 24, 2016 and noted that plaintiff complained of back

pain, had a positive straight-leg raising test (sitting and

supine), and had a limited range of motion. (Joint Stip. at 8;

Ar. at 410-12.) Finally, in a treatment record from March 8,

2016, Dr. Cordiale diagnosed the plaintiff with “lumbar disc

herniation with radiculopathy.” (See Ar. at 419; see also id.

at 499 (Dr. Joseph Weinstein diagnosing plaintiff with lumbar

radiculopathy and lumbar discogenic pain on November 13, 2017));

Scully v. Berryhill, 282 F. Supp. 3d 628, 635 (S.D.N.Y.

2017)(“Listing 1.04(A) requires—in addition to a spinal disorder

such as a herniated disc, arthritis, degenerative disc disease,

or a vertebral fracture.”); Norman v. Astrue, 912 F. Supp. 2d

33, 78 (S.D.N.Y. 2012) (noting that lumbar radiculopathy

evidenced nerve root compression). On March 8, 2016, during a

motor exam of the plaintiff, her reflexes were described as

“abnormal in the lower extremities. Sensation is abnormal [in

the] left L5 and bilateral S1 dermatomes.” (Ar. at 425.)

Accordingly, as described above, plaintiff set forth evidence to

support a colorable finding of disability under Listing 1.04(A).

See Parks v. Comm'r of Soc. Sec., No. 19-cv-00505 (EAW), 2020 WL

3542123, at *6 (W.D.N.Y. June 30, 2020) (“Plaintiff has made at

least a colorable case that [she] meets [or equals] the

requirements of Listing 1.04(A) and thus, the ambiguities noted

above are critical to a finding of disability.”).

Because there is evidence supporting a colorable

finding that plaintiff met the criteria set forth in Listing

1.04(A), “the ALJ must provide an explanation of his reasoning

as to why he believes the requirements are not met and explain

the credibility determinations and inferences he drew in

reaching that conclusion.” See Ryan, 5 F. Supp. 3d at 509

(citing Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982));

Here, for the reasons stated below, the court concludes that the

ALJ failed to adequately explain his reasoning as to the finding

under Listing 1.04(A) and, therefore, remands this case for

further proceedings.

B. Remand is Appropriate for Clarification of Listing 1.04(A)

Where evidence in the record suggests that a plaintiff

could meet criteria of Listing 104(A), remand is proper when the

court “cannot determine whether the ALJ properly considered the

Listing because his only reference to it is a recitation of the

standard.” See Torres, 2015 WL 4604000, at *4; Cherico, 2014 WL

3939036, at *28; see also McIntosh v. Berryhill, No. 17-cv-5403

(ER) (DF), 2018 WL 4376417, at *18 (S.D.N.Y. July 16, 2018)

(“[C]onflicting medical evidence left unaddressed by the ALJ,

combined with significant omissions in Plaintiff's medical

records, render this Court unable to conclude that the ALJ's

ultimate decision that Plaintiff failed to satisfy Listing

1.04(A) was supported by substantial evidence), report and

recommendation adopted, No. 17-cv-5403(ER)(DF), 2018 WL 4374001

(S.D.N.Y. Sept. 12, 2018).

District courts have discretion to remand for further

proceedings when the results of physical examinations are not

discussed as to how they relate to listing criteria in the step

three analysis and when “boilerplate language” is used instead.

Ryan, 5 F. Supp. 3d at 508 (“The ALJ's decision contains

boilerplate language that provides no meaningful explanation for

his conclusion that plaintiff did not meet Listing 1.04(A).”).

Furthermore, even if the ALJ would ultimately have decided that

the plaintiff’s impairments did not meet or equal Listing 1.04’s

criteria, the plaintiff should be provided with reasons why

these criteria have not been met. See Norman, 912 F. Supp. 2d

at 81 (“On remand, the ALJ should consider whether plaintiff

meets the requirements of Listing 1.04(A) and he should explain

his reasoning for his ultimate determination.”). Additionally

courts hold that is “particularly important for the ALJ to

specifically address evidence with respect to the step three

analysis, because a claimant whose condition meets or equals

that of a Listing is deemed disabled per se and is eligible to

receive benefits” and when symptoms “appear to match those

described in a listing, the ALJ must explain a finding of

eligibility based on the Listings.” Giambrone v. Colvin, No.

15-cv-05882 (PKC), 2017 WL 1194650, at *18 (E.D.N.Y. Apr. 3,

2017) (quoting Peach, 2016 WL 2956230, at *3).

In the ALJ’s decision, it appears the ALJ used

boilerplate language to assert that the plaintiff does not have

a disorder of the spine that meets or medically equals the

severity of Listing 1.04(A). (Ar. at 20.) The ALJ states that

“[a]s the overall record did not demonstrate these requirements,

I find the [plaintiff’s] lumbar spine impairment did not meet or

medically equal the listing.” (Id.) In making this finding,

the ALJ stated, in conclusory terms, that “[t]he record does not

contain any indication that a treating, examining, or non-

examining medical source has mentioned findings or rendered an

opinion that the claimant’s impairments singly or in

combination, medically meet or equal the criteria of any listed

impairment.” (Id.) The ALJ’s conclusory statement is

“inadequate to substitute for specific findings in view of the

fact that plaintiff has at least a colorable case for

application of listing 1.04(A),” Cherico, 2014 WL 3939036, at

*28, and remand is warranted here. Further, although on appeal

the Commissioner connects examination findings from various

doctors to reasons why the plaintiff failed to carry her burden

in proving Listing 1.04 criteria, (see Def. Mem. at 7), the

ALJ’s written decision does not. “The ALJ (not the

Commissioner's lawyers) must ‘build an accurate and logical

bridge from the evidence to [his] conclusion to enable a

meaningful review.’” Hamedallah ex rel. E.B., 876 F. Supp. 2d

at 142. Due to the absence of specific findings by the ALJ,

this court is unable to meaningfully review the ALJ’s

determination at step three of the sequential analysis. See

Rowe, 2018 WL 4233702, at *3 (“The ALJ's failure to discuss any

of this evidence at step three of the sequential evaluation was

erroneous. This Court is therefore unable to perform a

meaningful review of the ALJ's conclusion that Plaintiff did not

meet the requirements of Listing 1.04(A).”).

Nonetheless, an ALJ's unexplained conclusion at step

three of the analysis may be upheld where other portions of the

decision and other “clearly credible evidence” demonstrate that

the conclusion is supported by substantial evidence. Berry v.

Schweiker, 675 F.2d 464, 469 (2d Cir. 1982); see also Salmini v.

Comm'r of Soc. Sec., 371 Fed. Appx. 109, 112–13 (2d Cir. 2010)

(summary order). Here, although the ALJ does discuss some of

the medical evidence related to plaintiff’s back pain in the

written decision, these findings only relate to the plaintiff’s

RFC determination and do not provide rationale as to how the

findings connect to specific criteria in Listing 1.04(A) under

step three of the analysis. (See Ar. at 21-29); see also Lamar

v. Berryhill, No. 17-cv-1019 (MPS), 2018 WL 3642656, at *8 (D.

Conn. Aug. 1, 2018) (remanding case where the court was “largely

left to speculate how the evidence discussed in the ALJ’s RFC

rationale applies in the Listings context, as the ALJ did not

make the necessary findings on issues pertinent to his

determinations at step three of the disability analysis”).

Accordingly, for the reasons set forth above, remand is proper

so that the ALJ may provide further analysis and explanation of

plaintiff’s medical examinations, imaging results, and other

evidence in the context of Listing 1.04(A).1 On remand, the ALJ

should specifically explain his finding as to whether plaintiff

1 It is not the function of the Court to weigh the medical evidence of

record to determine whether Listing 1.04(A) was met. See Schaal v. Apfel,

134 F.3d 496, 501 (2d Cir. 1998) (“It is not our function to determine de

novo whether plaintiff is disabled.” (internal quotation marks omitted)). It

is the ALJ’s job to make this determination in a way a court can follow.

Abramaitys v. Berryhill, No. 16-cv-00660 (MAT), 2017 WL 4456700, at *3

(W.D.N.Y. Oct. 6, 2017) (“[I]t is not the function of this Court to weigh the

medical evidence and determine if plaintiff meets the listing requirements.

It is the Commissioner's function to make that determination and, in this

case, the ALJ failed to do so in a manner that allows for meaningful

review.”).

meets or equals the criteria specified in Listing 1.04(A). See

Nashir v. Berryhill, No. 18-cv-767 (HKS), 2020 WL 1445069, at *5

(W.D.N.Y. Mar. 25, 2020) (“Plaintiff is clearly owed a more

substantive explanation of why he did not meet the Listing

1.04A. If, on remand, Plaintiff is once again found not disabled

at step three, the ALJ must provide an explanation of what

criteria from Listing 1.04A Plaintiff failed to meet in

consideration of all of the evidence regarding his severe

impairments of the cervical spine. Specifically, the ALJ is

directed to address all conflicting evidence and provide reasons

for discounting that evidence which he rejects.”).

C. Plaintiff's Remaining Arguments

The ALJ’s error at step three, as discussed above, is

a sufficient basis for reversal of the Commissioner’s decision

and remand for further proceedings. Because the ALJ will need

to perform a new sequential evaluation on remand, the court need

not address plaintiff's remaining arguments, which concern other

steps in the sequential analysis. See, e.g., Ramirez Morales v.

Berryhill, No. 17-cv-06836 (MAT), 2019 WL 1076088, at *5

(W.D.N.Y. Mar. 7, 2019) (declining to consider plaintiff’s

remaining arguments after remanding administrative proceeding

due to the ALJ’s failure to properly consider plaintiff’s

medical records as they pertained to Listing 1.04(A)); Rowe,

2018 WL 4233702, at *5 (same).

CONCLUSION

For the reasons set forth above, plaintiff’s motion

for judgment on the pleadings is GRANTED, defendant’s cross-

motion for judgment on the pleadings is DENIED, and the case is

REMANDED for further proceedings consistent with this Memorandum

and Order. The Clerk of Court is respectfully directed to enter

judgment in favor of plaintiff and close the case.

SO ORDERED.

/s/

Hon. Kiyo A. Matsumoto

United States District Judge

Eastern District of New York

Dated: Brooklyn, New York

December 28, 2020