Johnson v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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PATRICK A. JOHNSON,

Plaintiff,

-against- MEMORANDUM AND ORDER

19-CV-5615 (KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Patrick A. Johnson (“plaintiff”) appeals the

final decision of the Commissioner of Social Security

(“defendant”), which found plaintiff not disabled and thus not

entitled to disability insurance benefits (“DIB”) under sections

216(i) and 223(d) of the Social Security Act (“the Act”).

Before the court are the parties’ cross-motions for judgment on

the pleadings. For the reasons set forth below, plaintiff’s

motion for judgment on the pleadings is GRANTED, the

Commissioner’s motion for judgment on the pleadings is

respectfully DENIED, and this action is REMANDED for further

proceedings consistent with this Memorandum and Order.

BACKGROUND

The factual and procedural background leading to this

action is set forth in the administrative record.

(Administrative Transcript (“Tr.”), ECF No. 18.) The court has

reviewed the parties’ respective motions for judgment on the

pleadings and the administrative record. The parties entered

into a joint stipulation of facts on July 2, 2020, detailing Mr.

Johnson’s medical history and Mr. Johnson’s testimony at his

administrative hearing, which the court hereby incorporates by

reference. (See Joint Stipulation of Facts (“Stip.”), ECF No.

17.)

I. Procedural History

Plaintiff filed an application for disability

insurance benefits on February 24, 2014, alleging disability

beginning January 10, 2000 due to dysthymic disorder, scoliosis,

persistent depressive disorder, alcohol dependence, and bipolar

disorder. (Tr. 18, 192)1. Plaintiff’s claim was denied on May

21, 2014. (Id. 89-99). On May 27, 2014, Mr. Johnson requested

a hearing before an administrative law judge (“ALJ”). (Id.

107.) On February 5, 2016, Johnson appeared with counsel and

testified in person before ALJ Jeffrey Gardner (“ALJ Gardner”).

(Id. 46-88.) At the hearing, ALJ Gardner heard testimony by the

plaintiff. (Id.)

On October 19, 2016, ALJ Gardner issued a decision

affirming the SSA’s determination that Johnson did not qualify

1 All citations are to the record pagination.

as disabled within the meaning of the Act and, as a result, was

not entitled to benefits. (Id. 6-22.) On October 20, 2016

plaintiff appealed ALJ Gardner’s decision to the Appeals

Council. (Id. 161-163.) On June 20, 2017, the Appeals Council

denied Johnson’s appeal, rendering final the ALJ’s decision.

(Id. 1-5.)

On August 21, 2017, Johnson filed a civil action in

the United States District Court for the Eastern District of New

York. (Id. 714-721.) On January 9, 2018, the parties

subsequently stipulated to a remand for further administrative

proceedings. (Id. 719-721.)

On May 7, 2018, the Appeals Council remanded the case

to a new ALJ. (Id. 732-738.) On March 8, 2019, a second

hearing was held before ALJ Lori Romeo. (Id. 647-698.) At the

hearing, ALJ Romeo heard testimony by plaintiff, Dr. Chukwuemeka

Efobi, a medical expert and board-certified psychiatrist, Darius

Ghazi, an orthopedic medical expert, and Pat Green, a vocational

expert. (Id. 647.) On May 9, 2019, ALJ Romeo issued a decision

affirming the SSA’s determination that Johnson did not qualify

as disabled within the meaning of the Act and, as a result, was

not entitled to benefits. (Id. 620-646.) On May 11, 2019,

Johnson appealed ALJ Romeo’s decision to the Appeals Council.

(Id. 803-807.) On August 5, 2019, the Appeals Council denied

Johnson’s request, making ALJ Romeo’s decision the final

decision of the Commissioner. (Id. 614-619.) This action

followed. (See generally Complaint (“Compl.”), ECF No. 1.)

STANDARD OF REVIEW

Unsuccessful claimants for disability benefits may

bring an action in federal court seeking judicial review of the

Commissioner’s denial of their benefits. 42 U.S.C. §§ 405(g),

1383(c)(3). 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, 692 F.3d 118, 122 (2d Cir.

2012). Rather, “‘[a] district court may set aside the

Commissioner’s determination that a claimant is not disabled

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) (quoting Shaw v.

Chater, 221 F.3d 126, 131 (2d Cir. 2000)).

“Substantial evidence means ‘more than a mere

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Id. (quoting

Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)). 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) (“The findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence,

shall be conclusive . . . .”). 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) (quoting Cruz v.

Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)).

DISCUSSION

I. The Commissioner’s Five-Step Analysis of Disability Claims

A claimant must be “disabled” within the meaning of

the Act to receive disability benefits. See 42 U.S.C. §§ 423(a),

(d). A claimant qualifies as disabled when she is unable to

“engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can

be expected to result in death or which has lasted or can be

expected to last for a continuous period of not less than 12

months.” Id. § 423(d)(1)(A); Shaw, 221 F.3d at 131–32. The

impairment must be of “such severity” that the claimant is

unable to do her previous work or engage in any other kind of

substantial gainful work. 42 U.S.C. § 423(d)(2)(A).

The regulations promulgated by the Commissioner

prescribe a five-step sequential evaluation process for

determining whether a claimant meets the Act’s definition of

disabled. See 20 C.F.R. § 404.1520. The Commissioner’s process

is essentially as follows:

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

not working, (2) that [s]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 [her] prior type of work, the Commissioner

must find [her] disabled if (5) there is not another type

of work the claimant can do.

Burgess, 537 F.3d at 120 (quoting Green-Younger v. Barnhart, 335

F.3d 99, 106 (2d Cir. 2003)); accord 20 C.F.R. § 404.1520(a)(4).

“The claimant has the general burden of proving . . .

his or her case at steps one through four of the sequential

five-step framework established in the SSA regulations.”

Burgess, 537 F.3d at 128 (internal quotation marks and citations

omitted). “However, [b]ecause a hearing on disability benefits

is a nonadversarial proceeding, the ALJ generally has an

affirmative obligation to develop the administrative record.” Id.

(internal quotation marks omitted). “The burden falls upon the

Commissioner at the fifth step of the disability evaluation

process to prove that the claimant, if unable to perform her

past relevant work [and considering her residual functional

capacity, age, education, and work experience], is able to

engage in gainful employment within the national economy.”

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

“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) (alterations in original)). If

the Commissioner finds a combination of impairments, the

Commissioner must also consider whether “the combined effect of

all of [a claimant’s] impairment[s]” establish the claimant’s

eligibility for Social Security benefits. 20 C.F.R. §

404.1523(c); see also id. § 416.945(a)(2).

II. The ALJ’s Application of the Five-Step Analysis

Using the five-step sequential process to determine

whether a claimant is disabled as mandated by the SSA

regulations, the ALJ made the following determinations.

At step one, the ALJ determined that plaintiff had not

engaged in substantial gainful activity since the application

date, February 24, 2014. (Tr. 626.)2

At step two, the ALJ determined that plaintiff had the

severe impairments of scoliosis, unspecified schizophrenia,

depression, an “intellectual disorder vs. borderline

2 The ALJ noted that plaintiff had Social Security earnings of $1,080

posted for 2018 but that these earnings do not represent substantial gainful

activity as that term is defined in the Social Security Regulations. (Tr.

626.)

intellectual functioning,” and a history of marijuana and

alcohol abuse. (Id. 627.)3

At step three, the ALJ determined that plaintiff did

not have an impairment or combination of impairments that met or

medically equaled the severity of one of the listed impairments

of 20 C.F.R. Part 404, Subpart P, App’x 1. (Id.) Specifically,

ALJ Romeo considered plaintiff’s impairments under listing 1.00,

musculoskeletal system, or a combination of musculoskeletal

impairments that meets or medically equals the requirements of

any listed impairment in Appendix 1, Subpart P of Regulations

No. 4; listing 12.03, schizophrenia spectrum and other psychotic

disorders; listing 12.04, depressive, bipolar and related

disorders; listing 12.05, intellectual disorder; and listing

12.11, neurodevelopmental disorders. (Id. 627-628.) ALJ Romeo

determined that Mr. Johnson did not meet listing 1.00 for

musculoskeletal system impairments because the medical evidence

indicated few positive findings of back pain on examination,

including no radiographic evidence that would confirm a

significant spinal disorder. (Id. 632-633.) In addition,

3 The ALJ noted that the medical evidence showed the plaintiff had a

diagnosis of genital herpes but that this condition causes no significant

functional limitations and is therefore not a “severe” impairment. (Tr.

627.) The ALJ noted that the medical evidence showed the claimant was

diagnosed with Benign Prostatic Hyperplasia in September 2016 but that this

condition causes no significant functional limitations and is not a “severe”

impairment. (Id.) The ALJ noted that the medical evidence showed the

claimant has pes planus (flat feet) but that this condition does not cause

significant limitations and is not a “severe” impairment. (Id.)

plaintiff could ambulate effectively and was able to perform his

household chores and travel independently. (Id.) ALJ Romeo

determined that Mr. Johnson did not meet the listings for 12.03,

12.04, 12.05, and 12.11 for mental disorders because Mr. Johnson

did not have significant problems with attention, concentration

or memory, and had consistently been described as cooperative,

fully oriented and with normal cognitive abilities. (Id. 636.)

The ALJ noted that Mr. Johnson on occasion had complained of

hallucinations, but that these were well controlled with

medication. (Id.)

The ALJ next concluded that plaintiff had the residual

functional capacity (“RFC”) to perform light work. (Id. 629.)

To this RFC, the ALJ added several exertional limitations,

including: frequently performing postural activities including

stair climbing, using ramps, balancing, kneeling, stooping,

crouching and crawling; frequently working at heights; and never

operating a motor vehicle because plaintiff did not have a

driver’s license. (Id.) The ALJ also added several non-

exertional limitations, including: plaintiff was found to be

limited to simple routine and repetitive tasks; and could have

no more than occasional and casual contact with coworkers and no

contact with the public. (Id.)

In arriving at this RFC, the ALJ accorded varying

weight to the medical opinions, specifically: “great weight” to

the opinion of Dr. Darius Ghazi, M.D., an SSA non-examining

orthopedist medical expert; “some weight” to the opinion of Dr.

Julia Kaci, M.D., an SSA consultative examiner evaluating

plaintiff’s physical impairments; “some weight” to the opinion

of Dr. Allen Meisel, M.D., an SSA consultative examiner

evaluating plaintiff’s physical impairments; “little weight” to

the opinion of Dr. Reynaldo Budnah, D.O., one of plaintiff’s

treating physicians for his physical impairments; “very little”

weight to the opinion of Dr. Jesireno Lumbab4, M.D., one of

plaintiff’s treating physicians for his physical impairments;

“little weight” to Dr. John Laurence Miller, Ph.D, an SSA non-

examining consultative psychologist evaluating plaintiff’s

mental impairments; “little weight” to the opinion of Dr. Edward

Kamin, Ph.D, an SSA non-examining medical consultant examining

plaintiff’s medical impairments; “little weight” to the opinion

of Dr. Stanley Baker, M.D., a treating psychiatrist evaluating

the plaintiff’s mental impairments; “some weight” to the opinion

of Dr. Arshad Zaidi, M.D., who conducted a single examination of

the plaintiff’s mental impairments; “some weight” to the opinion

of Dr. David Mahony, Ph.D, an SSA non-examining consultative

psychologist evaluating the plaintiff’s mental impairments;

“some weight but not controlling weight or significant weight”

4 The ALJ mistakenly refers to the physician by his first name “Jesireno”

in her decision. The court properly refers to the physician here and

throughout this opinion as Dr. Lumbab. (See also infra n. 7.)

to the opinions of psychiatric nurse practitioner Deanna

Bronfermakher, N.P., a treating psychiatric nurse practitioner

and Dr. Jeanie Tse, M.D., who co-signed the opinions of NP

Bronfermakher; and the “most weight” to the opinion of Dr.

Chukwuemeka Efobi, M.D., an SSA non-examining medical consultant

evaluating the plaintiff’s mental impairments. (Id. 633-638.)

Further, upon assessing the medical evidence and opinions, the

ALJ found that plaintiff’s medically determinable impairments

could reasonably be expected to cause some of his alleged

symptoms, but that plaintiff’s “statements concerning the

intensity, persistence, and limiting effects of these symptoms

[were] not entirely consistent” with the evidence. (Id. 629.)

At step four, the ALJ determined that plaintiff did

not perform past work that represented substantial gainful

activity in the last fifteen years. (Id. 638.) The ALJ

therefore determined plaintiff had no past relevant work to

consider. (Id.)

At step five, the ALJ concluded that given plaintiff’s

age, education, work experience, and RFC, jobs existed in

significant numbers in the national economy that plaintiff could

perform. (Id.) The ALJ supplied the vocational expert with the

above information, who determined that plaintiff could perform

the requirements of representative occupations like hand

packager, final assembler, or garment sorter. (Id. 639.) The

ALJ thus concluded that plaintiff was not disabled within the

meaning of the Act. (Id. 639-640.)

III. The ALJ Erred in Failing to Apply the Treating Physician

Rule to the Opinions of Dr. Baker, NP Bronfermakher as

co-signed by Dr. Tse, Dr. Lumbab, and Dr. Budnah

“[A]n ALJ should defer to ‘to the views of the

physician who has engaged in the primary treatment of the

claimant.’” Cichocki v. Astrue, 534 F. App’x 71, 74 (2d Cir.

2013) (quoting Green–Younger v. Barnhart, 335 F.3d 99, 106 (2d

Cir. 2003)).5 “However, ‘[a] treating physician’s statement that

the claimant is disabled cannot itself be determinative.’” Id.

(quoting Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)).

“Rather, ‘a treating source’s opinion on the issue(s) of the

nature and severity of [a claimant’s] impairment(s)’ will be

given ‘controlling weight’ if the opinion is ‘well-supported by

medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial

evidence in [the claimant’s] case record.’” Id. (quoting 20

C.F.R. § 404.1527(c)(2)).

5 The Commissioner has revised its rules to eliminate the treating

physician rule, and ALJs are now to weigh all medical evaluations, regardless

of their sources, based on how well supported they are and their consistency

with the remainder of the record. See 20 C.F.R. §§ 404.1520b; 416.920c.

Claims filed before March 27, 2017, however, are still subject to the

treating physician rule, see id. § 404.1527(c)(2), and the Court accordingly

applies the rule to this case, as plaintiff filed his claim on February 24,

2014. See, e.g., Conetta v. Berryhill, 365 F. Supp. 3d 383, 395 n.5 (S.D.N.Y.

2019).

“An ‘ALJ who refuses to accord controlling weight to

the medical opinion of a treating physician must consider

various factors to determine how much weight to give to the

opinion,’ including: ‘(i) the frequency of examination and the

length, nature and extent of the treatment relationship; (ii)

the evidence in support of the treating physician’s opinion;

(iii) the consistency of the opinion with the record as a whole;

(iv) whether the opinion is from a specialist; and (v) other

factors brought to the Social Security Administration’s

attention that tend to support or contradict the opinion.’” Id.

(quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)).

“The ALJ must then ‘comprehensively set forth his [or her]

reasons for the weight assigned to a treating physician’s

opinion.’” Id. (quoting Burgess, 537 F.3d at 129).

In this analysis, although an ALJ should generally

explain the weight given to each opinion, remand is not required

where application of the proper legal standards would lead to

the same conclusion previously reached. See Zabala v. Astrue,

595 F.3d 402, 409 (2d Cir. 2010). Failure to consider the

opinion of a treating physician “ordinarily requires remand to

the ALJ for consideration of the improperly excluded evidence,

at least where the unconsidered evidence is significantly more

favorable to the claimant than the evidence considered.” Id. at

409. “Remand is unnecessary, however, ‘[w]here application of

the correct legal standard could lead to only one conclusion.’”

Id. (quoting Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998)).

For instance, in Zabala, the court found it was harmless error

to “exclude[] evidence [that was] essentially duplicative of

evidence considered by the ALJ,” as there would be no reasonable

likelihood that consideration of the unconsidered report would

change the outcome. Id. at 409-10 (noting that “[t]he

[unconsidered] report [was] largely identical to a [different]

report by the same doctor, which the ALJ did consider,” and

which set forth substantially identical findings).

The Commissioner argues that the ALJ gave proper

weight to the medical sources and that the ALJ’s decision is

supported by substantial evidence. (See Def. Mem. in Support of

Def.’s Cross-Mot. for J. on the Pleadings (“Def. Mem.”) at 6-16,

ECF No. 16.) Plaintiff contends that the ALJ failed to properly

apply the treating physician rule to the opinions of Dr. Baker,

NP Bronfermakher as co-signed by Dr. Tse, Dr. Lumbab, and Dr.

Budnah. (Pl. Mem. in Support of Pl.’s Mot. for J. on the

Pleadings (“Pl. Mem.”) at 2-9, ECF No. 15.)

“The opinion of a treating physician on the nature or

severity of a claimant's impairments is binding if it is

supported by medical evidence and not contradicted by

substantial evidence in the record.” Selian v. Astrue, 708 F.3d

409, 418 (2d Cir. 2013) (citing Burgess v. Astrue, 537 F.3d 117,

128 (2d Cir. 2008); Green–Younger v. Barnhart, 335 F.3d 99, 106–

07 (2d Cir. 2003)). “SSA regulations provide a very specific

process for evaluating a treating physician’s opinion and

instruct ALJs to give such opinions ‘controlling weight’ in all

but a limited range of circumstances.” Greek v. Colvin, 802 F.3d

370, 376 (2d Cir. 2015) (internal citations omitted). Each of

the Burgess factors ALJ Romeo was required to consider militate

in favor of affording the opinions of Dr. Baker, NP

Bronfermakher as co-signed by Dr. Tse, Dr. Lumbab, and Dr.

Budnah greater weight than ALJ Romeo afforded. As a group, the

doctors are certified specialists who had ongoing treatment

relationships with the plaintiff, and provided consistent, well-

supported, medical evidence for their opinions. ALJ Romeo only

afforded “very little” weight to Dr. Lumbab, “little weight” to

Drs. Budnah and Baker, and “some weight” to Dr. Tse and NP

Bronfermakher, rather than affording any or all of them

“controlling weight,” because ALJ Romeo concluded that: (1) the

opinions of Drs. Lumbab and Budnah were not well-supported by

the treatment records; and (2) that the opinions of Dr. Baker

and of NP Bronfermakher as co-signed by Dr. Tse were unexplained

and unsupported by mental status exam findings, as well as

internally inconsistent. (Tr. 633-638.) The ALJ procedurally

erred when she failed to explicitly consider the Burgess factors

while determining what weight to afford the opinions and medical

evidence from plaintiff’s treating physicians. See Estrella,

925 F.3d at 96. “Because the ALJ procedurally erred, the

question becomes whether a searching review of the record ...

assures the court...that the substance of the...rule was not

traversed—i.e., whether the record otherwise provides ‘good

reasons’ for assigning ‘[some] weight’ to [the treating

physicians’] opinion[s].” See id. (ellipsis in original) (citing

Halloran, 362 F.3d at 32).

Based on the following review of the record, the court

finds that ALJ Romeo’s conclusions that plaintiff’s treating

physicians’ opinions were either (1) not well-supported by

treatment records or (2) were unexplained and unsupported by

mental status exam findings, as well as internally inconsistent,

were based on the ALJ’s factually deficient reading of the

record. Pursuant to the following analysis, the court remands

and directs ALJ Romeo to explicitly consider the Burgess factors

and explain whether she affords controlling weight to the

opinions of plaintiff’s treating physicians, Dr. Baker, NP

Bronfermakher as co-signed by Dr. Tse, Dr. Lumbab, and Dr.

Budnah.

A. Dr. Baker’s Opinion

ALJ Romeo erred in according only “little weight,”

rather than “controlling weight,” to claimant’s treating

physician, Dr. Baker, when ALJ Romeo erroneously concluded that:

(1) Dr. Baker’s opinion was unexplained and unsupported by

mental status exam findings and (2) internally inconsistent.

First, the court reviews Dr. Baker’s findings to

determine whether they are unexplained and unsupported by mental

status exam findings. Dr. Baker opined, among other things,

that plaintiff had dysthymic/persistent depressive disorder,

alcohol dependence, and abused cannabis, and recommended

individual therapy, group therapy, and medication management.

(Tr. 267-268.) Dr. Baker also completed form prompts regarding

plaintiff’s conditions including: a diagnosis of

dysthymic/persistent depressive disorder, alcohol dependence,

and cannabis abuse; a GAF score of 51-60; signs and symptoms

included appetite disturbance with weight change, sleep

disturbance, personality change, mood disturbance, emotional

lability, recurrent panic attacks, paranoia or inappropriate

suspiciousness, feelings of guilt/worthlessness, difficulty

thinking or concentrating, social withdrawal or isolation,

intrusive recollections of traumatic experience, generalized

persistent anxiety, hostility and irritability. (Id. 308-311.)

Over the course of an eight-month period from January

of 2014 to August of 2014, Dr. Baker evaluated plaintiff’s

mental status four separate times, noting plaintiff’s

descriptions of flashbacks of his dead brother occurring since

1987, and depressive episodes. (Stip. 3-5.) After a mental

status examination revealed “fair” psychomotor movements,

pleasant mood, a labile affect, sporadic nightmares, fair

memory, fair attention and concentration, and fair insight and

judgment, Dr. Baker diagnosed dysthymic/persistent depressive

disorder, alcohol dependence, and cannabis abuse, and

recommended individual therapy and medication management.

(Stip. 3.) After meeting with the plaintiff two more times, Dr.

Baker checked the form prompt that plaintiff had an “extreme

loss” of functioning in his ability to accept instructions and

respond appropriately to criticism from supervisors, id. 4; Dr.

Baker checked prompts that plaintiff had a “marked loss” of

functioning and could sustain performance only “up to 1/3 of an

8-hour workday” in his ability to (1) interact appropriately

with the public and (2) get along with co-workers and peers

without unduly distracting them or exhibiting behavioral

extremes, id. 4-5; Dr. Baker checked form prompts that plaintiff

had no limitations in areas including asking simple questions

and requesting assistance, traveling in unfamiliar places, or

using public transportation, id. 5; Dr. Baker estimated

plaintiff would miss work, on average, more than three times a

month due to his impairments or treatment. (Id. 5.) ALJ Romeo

concluded that Dr. Baker’s statement about the plaintiff missing

work more than three times a month was unexplained, see Tr. 627,

but contrary to ALJ Romeo’s conclusion, the record demonstrates

that Dr. Baker did support this statement. (See Tr. 309.) With

respect to mental status examination findings, Dr. Baker wrote

that plaintiff had a diagnosis of persistent depressive disorder

with mood swings, irritability, sadness, isolation, anxiety, and

anhedonia and Dr. Baker checked the form prompt that Mr.

Johnson’s “impairments [are] reasonably consistent with the

symptoms and functional limitations described in this

evaluation.” (Stip. 5.) On August 19, 2014, plaintiff had his

fourth evaluation with Dr. Baker whose mental status findings6

indicate plaintiff had a labile affect, auditory hallucinations

of people calling his name, fair memory, fair

attention/concentration, and fair insight/judgment, and Dr.

Baker diagnosed bipolar disorder, ruled-out post-traumatic

stress disorder (“PTSD”), and alcohol dependence disorder, in

partial remission, while plaintiff’s GAF score was 51-60. (Id.)

Based on the foregoing review of Dr. Baker’s findings, the court

finds that Dr. Baker’s findings were supported by his mental

status exam findings. Consequently, the court finds that Dr.

Baker’s treatment of plaintiff over the eight-month period was

explained and supported by mental status exam findings.

Second, ALJ Romeo mischaracterized the evidence in

arriving at the conclusion that Dr. Baker’s opinion was

6 The handwritten note in the record is partially illegible.

internally inconsistent. To support this finding, the ALJ cited

Dr. Baker’s conclusions that plaintiff could take public

transportation and has only moderate problems with social

functioning, yet also concluded that he would have marked

problems with the public and coworkers. (Tr. 637.) ALJ Romeo

further explained that Dr. Baker’s finding is not consistent

with the objective evidence that plaintiff was cooperative at

examinations, attended group therapy sessions successfully, had

adequate grooming, enjoys going to the park, and can interact

acceptably with others when performing activities of daily

living. (Id.) Contrary to the ALJ’s conclusion, the record

demonstrates that plaintiff is limited in his ability to perform

daily activities. Though plaintiff has demonstrated abilities

to do household chores, perform personal care, and take public

transportation, performance of such limited activities is not

indicative of an ability to perform sustained work. “[A]

finding that a claimant is capable of undertaking basic

activities of daily life cannot stand in for a determination of

whether that person is capable of maintaining employment, at

least where there is no evidence that the claimant ‘engaged in

any of these activities for sustained periods comparable to

those required to hold a sedentary job.’” Bigler v. Comm'r of

Soc. Sec., No. 19-CV-03568 (AMD), 2020 WL 5819901, at *5

(E.D.N.Y. Sept. 29, 2020) (quoting Vasquez v. Barnhart, No. 02-

CV-6751, 2004 WL 725322, at *11 (E.D.N.Y. Mar. 2, 2004). See

also Murdaugh v. Sec’y of Dep’t of Health & Human Servs., 837

F.2d 99, 102 (2d Cir. 1988) (“[T]hat appellant receives

conservative treatment, waters his landlady’s garden,

occasionally visits friends and is able to get on and off an

examination table is scarcely said to controvert the medical

evidence.”); Carroll v. Sec’y of Health & Human Servs., 705 F.2d

638, 643 (2d Cir. 1983). Dr. Baker’s opinion is based on sound

medical evidence collected over several evaluations conducted

over an eight-month period; during that time, plaintiff was

consistently depressed, and experienced some improvement in

symptoms but, overall, plaintiff’s symptoms persisted. (See

Stip. 3-5.)

Non-examining physician Dr. Efobi’s testified, after

reviewing the medical record, that plaintiff would be capable of

simple work and capable of performing occasional interactions.

Dr. Efobi’s conclusory testimony is not sufficient medical

evidence to discount Dr. Baker’s well-informed opinion. “ALJs

should not rely heavily on the findings of consultative

physicians after a single examination.” Selian v. Astrue, 708

F.3d 409, 419 (2d Cir. 2013). Here, Dr. Efobi merely reviewed

records but did not examine plaintiff. An inconsistency between

the opinion of a treating physician and that of a consultative

examiner “is not sufficient, on its own, to reject the opinion

of the treating physician.” Cammy v. Colvin, No. 12-CV-5810,

2015 WL 6029187, at *14 (E.D.N.Y. Oct. 15, 2015) (quoting

Donnelly v. Comm’r of Soc. Sec., 49 F. Supp. 3d 289, 305

(E.D.N.Y. 2014)). Indeed, there were discrete moments over the

course of Dr. Baker’s treating relationships where he reported

that plaintiff had the ability to occasionally interact

socially, see, e.g., Tr. 310, similar to the one-off testimony

of SSA non-examining medical consultant Dr. Efobi. Such

findings, however, must be evaluated in the context of the other

significant deficits and impairments Dr. Baker found over his

eight-month treatment period, which Dr. Efobi’s one-time record

review could not be expected to replicate.

Accordingly, for the reasons stated above, the court

finds that Dr. Baker’s opinion was well-supported and explained

by multiple mental status exam findings and was not internally

inconsistent. On remand, the ALJ is directed to explicitly

consider the Burgess factors and either afford controlling

weight to Dr. Baker’s opinion or explain why she will not do so.

B. Dr. Tse and NP Bronfermakher

As with Dr. Baker, ALJ Romeo erred in according only

“some weight,” rather than “controlling weight,” to claimant’s

next treating physician, Dr. Tse and NP Bronfermakher, when ALJ

Romeo erroneously concluded that: (1) Dr. Tse’s and NP

Bronfermakher’s opinion was unexplained and unsupported by

mental status exam findings; and that (2) Dr. Tse’s and NP

Bronfermakher’s opinion was internally inconsistent.

First, the court reviews Dr. Tse’s and NP

Bronfermakher’s findings to determine whether they are

unexplained and unsupported by mental status exam findings. NP

Bronfermakher’s findings, co-signed by Dr. Tse, regarding

plaintiff’s limitations were largely consistent with those of

Dr. Baker. See supra. NP Bronfermakher and Dr. Tse filled out

a report which included: a diagnosis of schizoaffective

disorder; and signs and symptoms of appetite disturbance with

weight change, sleep disturbance, mood disturbance, emotional

lability, paranoia or inappropriate suspiciousness, decreased

energy, and intrusive recollections of a traumatic experience.

(Stip. 9.) With respect to mental status examination findings,

NP Bronfermakher wrote that plaintiff was calm and cooperative

during the interview, had good eye contact, had no psychomotor

abnormalities, reported a fair mood, had a blunted affect,

denied hallucinations, denied suicidal or homicidal ideation,

and had fair insight and judgment and checked the form prompt

that plaintiff’s “impairments are reasonably consistent with the

symptoms and functional limitations described in this

valuation.” (Id.) Further NP Bronfermakher and Dr. Tse opined

that plaintiff had a “marked loss” of functioning in his ability

and could sustain performance only up to 1/3 of an 8-hour

workday, id. 10; he had a “moderate loss” of functioning and

only had the ability to perform the activity for 1/3 to 2/3 of

an 8-hour workday in his ability to maintain attention and

concentration for extended periods, i.e., 2 hour segments;

maintain regular attendance and be punctual; deal with the

stress of semi-skilled and skilled work; work in coordination

with or proximity to others without being unduly distracted; get

along with co-workers or peers without unduly distracting them

or exhibiting behavioral extremes; and, respond appropriately to

changes in a routine work setting, id.; that on average Mr.

Johnson would miss work more than three times a month due to his

impairments or treatment, id.; that he had no significant

limitations with respect to simple or detailed instructions,

sustaining an ordinary routine, making simple decisions,

interacting appropriately with the public, accepting

instructions and responding appropriately to criticism from

supervisors, and maintaining socially appropriate behavior.

(Id.)

NP Bronfermakher and Dr. Tse based their opinions on

sound medical evidence obtained from their evaluations of the

plaintiff. NP Bronfermakher and Dr. Tse based their opinions on

evidence of appetite disturbance with weight change, sleep

disturbance, mood disturbance, emotional lability, paranoia or

inappropriate suspiciousness, decreased energy, and intrusive

recollections of a traumatic experience. (Id. 9.) Some mental

status exam findings from the Personalized Recovery Oriented

Services (“PROS”) performed by NP Bronfermakher and Dr. Tse

showed a blunted affect, “depressed” mood, vague referential and

grandiose themes of thought content, and occasional auditory

hallucinations. (Id. 6-9.) Like Dr. Baker, NP Bronfermakher

and Dr. Tse based their opinions on sound medical evidence and

mental status exam findings.

Second, ALJ Romeo mischaracterized evidence in

arriving at the conclusion that NP Bronfermakher and Dr. Tse’s

opinion was internally inconsistent. To support this finding,

the ALJ cited NP Bronfermakher’s and Dr. Tse’s conclusions that,

in September 2015, they completed an assessment stating that

plaintiff was employable with extra orientation and then, in

January 2016, they completed an assessment stating that the

plaintiff could not complete a full day of work at a consistent

pace. (Tr. 637-38.) ALJ Romeo concluded that NP Bronfermakher

and Dr. Tse provided no evidence to support the limitations

found in January 2016. (Id.) Although NP Bronfermakher and Dr.

Tse reported in September 2015 that plaintiff was employable

with limitations, contrary to the ALJ’s conclusion, NP

Bronfermakher and Dr. Tse supported their subsequent January

2016 contrary conclusion that plaintiff could not complete a

full day of work or perform at a consistent pace with the

following findings: NP Bronfermakher and Dr. Tse reported

evidence of plaintiff suffering from appetite disturbance with

weight change, sleep disturbance, mood disturbance, emotional

lability, paranoia or inappropriate suspiciousness, decreased

energy, and intrusive recollections of a traumatic experience in

conjunction with their January 2016 opinion that plaintiff could

not complete a full day of work or perform at a consistent pace.

(Stip. 9.) ALJ Romeo again referred to plaintiff’s ability to

perform limited daily activities but, as the court determined

earlier, supra, although a plaintiff has demonstrated abilities

to perform basic functions of daily living, performance of such

limited activities is not indicative of an ability to perform

sustained work. See Dr. Baker, supra. Further, the ALJ failed

to sufficiently explain why a finding that plaintiff could do

simple work from Dr. Efobi, a non-examining medical consultant,

is sufficient to discount the findings of the treating

physicians’ opinions. Like Dr. Baker, NP Bronfermakher and Dr.

Tse reported that plaintiff had significant impairments that

supported their opinion regarding plaintiff’s limitations, based

on their longitudinal treatment records.

Accordingly, for the reasons stated above, the court

finds that NP Bronfermakher’s and Dr. Tse’s opinion was well-

supported and explained by mental status exam findings and was

not internally inconsistent. On remand, the ALJ is directed to

explicitly consider the Burgess factors and either afford

controlling weight to NP Bronfermakher’s and Dr. Tse’s opinion

or explain why she will not do so.

C. Dr. Lumbab’s7 Opinion

ALJ Romeo erred in according only “very little

weight,” rather than “controlling weight” to claimant’s treating

physician, Dr. Lumbab, when ALJ Romeo erroneously concluded

that: (1) Dr. Lumbab’s opinion was not supported by objective

medical evidence and (2) contradicted by his own statements and

plaintiff’s ability to do household chores.

First, the court reviews Dr. Lumbab’s findings to

determine whether they are supported by objective medical

evidence. Dr. Lumbab diagnosed chronic lower back pain and

depression and further opined that plaintiff: could sit less

than 1 hour in an 8-hour workday and for less than 15 minutes at

one time; could stand/walk 2 hours total in an 8-hour workday

and for 30 minutes at a time; needed to lie down 4 hours a day;

could never lift/carry even 5 pounds; and would miss work more

than three times a month due to his impairments. (Stip. 16.)

Further, Dr. Lumbab checked form prompts opining that plaintiff

had: positive objective signs of reduced motion in the lower

back; impaired sleep; impaired appetite; tenderness; muscle

7 The ALJ mistakenly refers to the physician by his first name “Jesireno”

in her decision. The court properly refers to the physician here and

throughout this opinion as Dr. Lumbab. (See also supra n. 4.)

spasms and muscle weakness; anxiety and depression worsened

plaintiff’s perception of pain; and side effects from medication

of possible dizziness and drowsiness. (Id.)

The ALJ’s conclusion that Dr. Lumbab’s opinions were

not supported by objective medical evidence because the

treatment records from Brownsville Community Development

Corporation (“BCDC”) do not show muscle weakness is

unpersuasive. (See Tr. 633, referring to id. 15-19.) ALJ Romeo

stated that the BCDC record shows no muscle weakness but fails

to note that the BCDC record contains findings of tenderness on

palpation of the lumbar spine from L2 through L5, tight

bilateral paravertebral muscles, and decreased flexion and

extension of the spine. (Stip. 18.) ALJ Romeo also stated the

medical evidence shows no weakness of the upper extremities or

grip, and no difficulties in handling/fingering objects. (Tr.

633.) The ALJ’s summary conclusion, however, fails to address

why such a finding is relevant to or undercuts Dr. Lumbab’s

opinion. The fact that the medical record does not show

weakness of the upper extremities or grip, and no difficulties

in handling/fingering objects, fails to support ALJ Romeo’s lay

conclusion that these isolated facts undermine Dr. Lumbab’s

extensive findings. Dr. Lumbab based his opinions on findings

of reduced motion in the back, impaired sleep, impaired

appetite, tenderness, and muscle spasms. (Tr. 365.) These

findings were confirmed by physical examinations in treatment

notes. (Tr. 430, 434, 437, 454, 459.) The ALJ is “not

permitted to substitute [her] own expertise or view of the

medical proof for the treating physician's opinion or for any

competent medical opinion.” Greek v. Colvin, 802 F.3d 370, 375

(2d Cir. 2015). Here the ALJ impermissibly substituted her own

opinions for Dr. Lumbab’s medical findings and opinion. The

court finds that the ALJ was in error and that Dr. Lumbab based

his opinions on objective medical findings and physical

examinations.

Second, ALJ Romeo mischaracterized the evidence in

arriving at the conclusion that Dr. Lumbab’s opinion was

contradicted by the doctor’s own statements and plaintiff’s

ability to do household chores. To support this finding, ALJ

Romeo cited plaintiff’s ability to do household chores and Dr.

Lumbab’s statements regarding these abilities. (Tr. 633.)

There is no specific reference to what abilities and chores the

ALJ was referring to. Plaintiff has demonstrated limited

abilities to perform basic activities, and Dr. Lumbab issued a

note stating that plaintiff “should be excused from work for one

day” and “could return to school on June 10.” (See Stip. 16.)

Although these statements were issued by Dr. Lumbab, as

discussed above supra, the evidence that a claimant is capable

of performing basic activities of daily life cannot stand in

place of a determination for whether the claimant can maintain

employment. See Bigler, 2020 WL 5819901, at *5 (E.D.N.Y. Sept.

29, 2020). Further, such findings must be evaluated in the

context of the other significant impairments Dr. Lumbab found

while examining and treating the plaintiff.

Accordingly, for the reasons stated above, the court

finds that Dr. Lumbab’s opinion was well-supported by objective

medical evidence and was not contradicted by his own statements

and plaintiff’s ability to do household chores. On remand, the

ALJ is directed to explicitly consider the Burgess factors and

either afford controlling weight to Dr. Lumbab’s opinion or

explain why she will not do so.

D. Dr. Budnah’s Opinion

ALJ Romeo erred in according only “little

weight,” rather than “controlling weight” to claimant’s treating

physician, Dr. Budnah, when ALJ Romeo erroneously concluded

that: (1) Dr. Budnah’s opinion was not supported by objective

medical evidence and (2) the length of his treatment history was

too short.

First, the court reviews Dr. Budnah’s findings to

determine whether they are supported by objective medical

evidence. Dr. Budnah’s physical examination revealed tenderness

on palpation of the lumbar spine from L2 through L5, tight

bilateral paravertebral muscles, and decreased flexion and

extension of the spine. (Tr. 434.) Dr. Budnah examined

plaintiff on two occasions. (Tr. 365.) Dr. Budnah diagnosed

chronic lower back pain and described plaintiff’s symptom as

“low back pain radiating to the left leg.” (Stip. 18.) Dr.

Budnah further opined the following findings: plaintiff was able

to sit less than 1 hour in an 8-hour workday and stand/walk less

than 1 hour in and 8-hour workday; plaintiff needed to lie down

3 hours a day; and plaintiff would miss work more than three

times a month due to his impairments or treatment. (Id.) Dr.

Budnah also filled out form prompts that included the following:

plaintiff had “positive objective signs” of reduced range of

motion; impaired sleep; impaired appetite; abnormal posture;

swelling; muscle weakness; and emotional factors contributing to

plaintiff’s symptoms but did not indicate that plaintiff had any

psychological conditions. (Id.)

Similar to Dr. Lumbab, the court finds unpersuasive

the ALJ’s reasons for concluding that Dr. Budnah’s opinions were

unsupported by objective medical evidence in the treatment

records from the BCDC, because those records do not show muscle

weakness or abnormal posture. (See Tr. 633, referring to id.

15-19.) ALJ Romeo stated that the BCDC record shows no muscle

weakness but fails to mention the BCDC record contains evidence

that on examination of plaintiff, Dr. Budnah found tenderness on

palpation of the lumbar spine from L2 through L5, tight

bilateral paravertebral muscles, and decreased flexion and

extension of the spine. (Stip. 18.) Similar to the court’s

analysis of Dr. Lumbab’s opinions, the ALJ also substituted her

lay interpretation of the record to support her weighing of Dr.

Budnah’s opinion. Again, the ALJ is “not permitted to

substitute [her] own expertise or view of the medical proof for

the treating physician's opinion or for any competent medical

opinion.” Colvin, 802 F.3d at *375. Dr. Budnah based his

opinions on sound conclusions supported by objective medical

findings and physical examinations.

Second, ALJ Romeo mischaracterized the evidence in

arriving at the conclusion that Dr. Budnah’s opinion could be

discounted because he only saw the plaintiff on two occasions.

(Tr. 633.) The frequency of examination and the length, nature

and extent of the treatment relationship, is just one of several

factors the ALJ must consider when refusing to give controlling

weight to the medical opinion of a treating physician. Halloran

v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). In addition to

being treated by Dr. Budnah two times while at the BCDC,

plaintiff was also treated by Dr. Lumbab, who opined similarly

to Dr. Budnah, as well as being treated by multiple other

sources at the BCDC regularly from September 2012 to September

2016. (Stip. 15-19.) By cherry-picking evidence that supports

the ALJ’s lay view of plaintiff’s condition, and in failing to

afford the treating physician Dr. Budnah’s opinion controlling

weight, the ALJ has inappropriately substituted her lay opinion

for a treating physician’s medical opinion. See Colvin, 802

F.3d, at *375.

As the ALJ failed to accurately characterize or cite

with particularity any evidence that contradicted Dr. Budnah’s

opinion, and because the ALJ failed to explicitly consider the

Burgess factors, the court finds that Dr. Budnah’s opinion

should have been afforded controlling weight, or an explanation

should be provided for not doing so. On remand, the ALJ is

directed to explicitly consider the Burgess factors, consider

whether to assign controlling weight to Dr. Budnah’s opinion,

and explain the bases for deciding whether or not to do so.

On balance, the ALJ selectively relied on

inconsistencies in the treating physicians’ opinions as a basis

for denying plaintiff disability benefits. This was in

violation of the ALJ’s mandate, and, along with the errors noted

above supra, warrants remand. See Clarke v. Colvin, 15-CV-354,

2017 WL 125362, at *9 (S.D.N.Y. Apr. 3, 2017) (“[T]he ALJ

selectively relied on evidence that weighed against a finding of

a disability. This is improper—an ALJ may not ‘pick and choose

evidence which favors a finding that the claimant is not

disabled.’”) (quoting Rodriguez v. Astrue, 07-CV- 534, 2009 WL

637154, at *25 (S.D.N.Y. Mar. 9, 2009)); accord Kebreau v.

Astrue, No. 11-CV-12, 2012 WL 3597377, at *2 (E.D.N.Y. Aug. 20,

2012).

IV. The ALJ Erred in Assessing Plaintiff’s Credibility

An ALJ evaluating a claimant’s subjective complaints

of his symptoms must first decide whether the claimant suffers

from a medically determinable impairment that could reasonably

be expected to produce his pain or other symptoms alleged. 20

C.F.R. § 404.1529(c)(1). Second, the ALJ must evaluate the

intensity and persistence of the claimant’s symptoms given all

of the available evidence. Id. In assessing the credibility of

the claimant’s statements regarding his symptoms, the ALJ must

consider the following factors: “(1) [The claimant’s] daily

activities; (2) The location, duration, frequency, and intensity

of [the claimant’s] pain or other symptoms; (3) Precipitating

and aggravating factors; (4) The type, dosage, effectiveness,

and side effects of any medication [the claimant] takes or has

taken to alleviate pain or other symptoms; (5) Treatment, other

than medication, [the claimant] receives or has received for

relief of pain or other symptoms; (6) Any measures the claimant

uses or [has] used to relieve pain or other symptoms (e.g.,

lying flat on [her] back, standing for 15 to 20 minutes every

hour, sleeping on a board, etc.); and (7) Other factors

concerning [the claimant’s] functional limitations and

restrictions due to pain or other symptoms.” 20 C.F.R. §

404.1529(c)(3). Notwithstanding, the ALJ will consider whether

there are any incongruities between the claimant’s statements

and the rest of the evidence. 20 C.F.R. § 404.1529(c)(4).

“Remand is appropriate where an ALJ does not follow these

steps.” Peck v. Astrue, No. 07-CV-2762, 2010 WL 3125950, at *4

(E.D.N.Y. Aug. 6, 2010).

The ALJ initially found that plaintiff’s medically

determinable impairments could reasonably be expected to cause

some of the alleged symptoms. (Tr. 629.) The ALJ then cherry-

picked favorable findings by finding that plaintiff’s subjective

account of the intensity, persistence, and limiting effects of

his symptoms were incongruent with the objective medical

evidence and other evidence, including: Dr. Ghazi’s testimony

that plaintiff has no limitations for sitting, standing, or

walking and is able to carry objects weighing up to 20 pounds

occasionally, id. 632; the absence of “radiographic evidence” in

the record, id. 632; that plaintiff has not been prescribed

“particularly strong medication since April 2014,” id. 633; Dr.

Efobi’s testimony that plaintiff is able to perform “simple

tasks” involving “no public contact and occasional and casual

contact with supervisors and coworkers,” id. 636; mental status

exam findings in the record showing that, “for the most part,”

plaintiff does not have significant problems with “attention,

concentration, or memory,” id. 636; and the fact that plaintiff

had been able to engage in some activities of daily living. (Id.

633, 637.)

As explained above, the ALJ’s evaluation of the

credibility of plaintiff’s statements was based on an incorrect

weighing of plaintiff’s treating physicians’ medical opinions.

Thus, on remand, the ALJ is instructed to reevaluate plaintiff’s

statements concerning the intensity, persistence, and limiting

effects of his symptoms in light of the ALJ’s careful

reassessment of the medical opinion evidence and the underlying

medical evidence. See Ingrassia v. Colvin, 239 F. Supp. 3d 605,

628 (E.D.N.Y. 2017) (“[The ALJ’s credibility determination] was

further flawed because the ALJ did not give controlling weight

to Dr. Alpert’s medical opinion, and ‘[t]he ALJ’s proper

evaluation of [the treating physician’s] opinions [will]

necessarily impact the ALJ’s credibility analysis’”) (internal

citations and quotations omitted); Goff v. Astrue, 993 F. Supp.

2d 114, 125 (N.D.N.Y. 2012) (“The ALJ's decision to discount

Plaintiff's credibility with respect to her respiratory

impairments was based in necessary part upon his assessment of

Dr. LoDolce's opinion. [] However, the ALJ's consideration of

Dr. LoDolce's opinion was flawed for the reasons stated above.

As such, the question of Plaintiff's credibility as to her

physical limitations will need to be revisited on remand after

the ALJ reassesses Dr. LoDolce's opinion.”)

V. Request for New Administrative Law Judge

Plaintiff requests that, if the court remands the

case, the court also order the Commissioner to assign a new ALJ

to the case. (Pl. Mem. 13.) In determining whether there is

sufficient reason for remand to a different ALJ, the court will

consider the following factors: (1) there is a clear indication

that the ALJ will not apply the appropriate legal standards on

remand; (2) there is a clear manifested bias or hostility toward

any party; (3) there is a clear refusal to weigh or consider

portions of the evidence or testimony favorable to a party due

to apparent hostility to that party; (4) there is a refusal to

weight or consider evidence with impartiality, due to apparent

hostility to any party. Brown v. Astrue, No. 08-CV-3653 (DGT),

2010 WL 2606477, at *9 (E.D.N.Y. June 22, 2010) (quoting

Sutherland v. Barnhart, 322 F. Supp. 2d 282, 292 (E.D.N.Y.

2004)); (Valet v. Astrue, No. 10-CV-3282, 2012 WL 194970, at

*22-23 (E.D.N.Y. Jan. 23, 2012). The court has held that remand

to a new ALJ is appropriate only when an ALJ’s conduct brings

about serious concerns about the fundamental fairness of the

disability review process. (Id.)

Applying the above factors, ALJ Romeo did not err in

her remarks during the 2019 hearing with regard to a dialogue

over evidence for submission at the remand hearing. The ALJ

suggested to plaintiff he “take whatever action he needs

necessary against [his attorney’s] law firm” because the medical

record was incomplete at the time of the 2019 hearing. (Tr.

656.) Plaintiff’s attorney stated the medical record was

incomplete because plaintiff would not cooperate with completing

the necessary medical release forms to obtain the records. (Tr.

653-657.) Plaintiff’s attorney alleges bias against himself and

his client based on the ALJ’s statement. The court denies

plaintiff’s request that the court order that another ALJ be

assigned for the following reasons. First, there were no

consequences to plaintiff or his attorney, as the ALJ did not

enforce the five-day rule and plaintiff was able to update his

record and obtain the medical evidence. (Tr. 968-99.) Second,

ALJ Romeo was not the same ALJ who presided over the 2016

hearing, and there is no evidence in the record of bias of ALJ

Romeo, such as refusing to admit or consider plaintiff’s

evidence or testimony. Plaintiff was also free to cross-examine

and question the medical and vocation experts who testified at

the hearing.

The court’s review of the record does not reveal the

type of special occurrence which gives rise to the kinds of

serious concerns about the fundamental fairness of the

disability review process that this court has held is necessary

for remand to a new ALJ. As a result, plaintiff’s request for

remand to a new ALJ is denied.

[This space intentionally left blank.]

CONCLUSION

Federal regulations explicitly authorize a court, when

reviewing decisions of the SSA, to order remand for 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.

Charter, 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.

For the reasons set forth above, the court grants

plaintiff’s motion for judgment on the pleadings; denies

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

remands this case for further proceedings consistent with this

Memorandum and Order. The Clerk of Court is respectfully

directed to close this case and enter judgment in favor of

plaintiff.

SO ORDERED.

Dated: March 4, 2021

Brooklyn, New York

/s/

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York