# Ortiz v. Berryhill

> District Court, E.D. New York · December 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10305459

## Case

- **Court:** District Court, E.D. New York
- **Decided:** December 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10305459

## How later opinions describe it (automated extraction)

- noting that lumbar radiculopathy evidenced nerve root compression

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X

CATHERINE E. ORTIZ,
MEMORANDUM AND ORDER
Plaintiff, 19-cv-2316(KAM)

v.

ANDREW SAUL, COMMISSIONER OF
SOCIAL SECURITY,

Defendant.

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305459. Public record. Not legal advice.