Figueroa v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RAFAEL D. FIGUEROA,

MEMORANDUM AND ORDER

Plaintiff, 20-cv-2700(KAM)

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C. § 405(g), plaintiff Rafael

Figueroa (“Plaintiff”) appeals the final decision of defendant,

the Commissioner of Social Security (the “Commissioner” or

“Defendant”), which found that Plaintiff was not eligible for

disability insurance benefits under Title II of the Social

Security Act (“the Act”), on the basis that Plaintiff is not

disabled within the meaning of the Act. Plaintiff alleges that

he is disabled under the Act and is thus entitled to receive the

aforementioned benefits.

Presently before the court are Plaintiff’s motion for

judgement on the pleadings (ECF No. 17, “Pl. Mot.”) and

Defendant’s cross-motion for judgement on the pleadings (ECF No.

19, “Def. Cross-Mot.”). 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

The parties have submitted a joint stipulation of

relevant facts, which the court hereby incorporates by reference

in its entirety. (See ECF No. 22, Joint Stipulation of Relevant

Facts (“Joint Stip.”).) Having reviewed the joint stipulation

of relevant facts, the Administrative Law Judge’s (“ALJ”)

decision, and the administrative record, the court notes the

following.

I. Prior Applications for Disability Insurance Benefits

Plaintiff Rafael Figueroa previously filed for, and

was denied, disability insurance benefits (“DIB”) on two

occasions. Plaintiff first alleged a disability onset date of

September 7, 2001. (ECF No. 16, Administrative Transcript

(“Tr.”) at 206.) The precise date when Plaintiff’s first

application was denied is not specified in the record, which

indicates only his alleged onset date as well as a shorthand

reason for denial: it was determined Plaintiff retained the

capacity to perform substantially gainful activity in past

relevant work. (Id.) Plaintiff’s second application for DIB

alleged an onset date of December 26, 2011. (Id.) Plaintiff’s

second application was denied on April 15, 2015, and the

justification for denial was the same as in his previous denial.

(Id. at 75, 206.)

II. Plaintiff’s Instant Application for Disability Insurance

Benefits

On March 28, 2017, Plaintiff filed the instant

application for DIB due to major depressive disorder, anxiety

disorder, status post cerebrovascular accident (“CVA”) with

residuals, and a hearing impairment. (Id. at 19, 88.) The

alleged onset of Plaintiff’s disability was April 16, 2015, the

day after the denial of his second application for DIB.

(Id. at 185, 206.) Plaintiff claims he was disabled following a

stroke he suffered in 2011 and that his condition has worsened

over time. (Joint Stip. at 12.)

On July 28, 2017, the Social Security Administration

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

relevant medical evidence showed Plaintiff was not disabled

within the meaning of the Act over the relevant period. (Id. at

91-102.) On September 2, 2017, Plaintiff filed a request for a

hearing before an ALJ, which was held before ALJ Sandra M.

McKenna on December 21, 2018 in Queens, New York. (Id. at 103-

104, 38-69.) Christine Ditrinco, a vocational expert, provided

testimony during Plaintiff’s hearing. (Id. at 61-69.) In a

decision dated February 19, 2019, ALJ McKenna found the

following: (1) Plaintiff remained insured only through December

31, 2015 (“the date last insured”), requiring Plaintiff to

establish disability on or before the date last insured to be

entitled to a period of disability and disability insurance

benefits; and, (2) Plaintiff was not disabled within the meaning

of the Act. (Id. at 13-37.) On February 25, 2019, Plaintiff

requested review of the ALJ’s decision with the Appeals Council,

which was denied on April 14, 2020, thereby making the ALJ’s

decision the final decision of the Commissioner. (Id. at 1-5,

175-184). On June 17, 2020, Plaintiff timely filed the instant

action in federal court appealing the Commissioner’s decision.

(ECF No. 1, Complaint (“Compl.”).)

III. Medical and Non-Medical Evidence

A. Consultative Examiner Opinion of Dr. Chaim Shtock

On October 20, 2014, Dr. Chaim Shtock, D.O., a SSA

consultative examiner, determined that Plaintiff could sit

continuously for forty-five minutes and for only four hours

total in an eight-hour workday. (Tr. at 271; Joint Stip. at

10.) Dr. Shtock indicated that Plaintiff demonstrated slightly

slow speech, slow and slightly unsteady gait, use of a cane,

grip strength 4+/5 bilaterally, and strength 4+/5 in proximal

and distal muscles. (Tr. at 265-276.) Dr. Shtock diagnosed

Plaintiff with gait dysfunction as well as, by history, brain

tumor, stroke, numbness, decreased balance, decreased short-term

memory, depression, anxiety, decreased comprehension and

concentration, episodic fatigue, episodic difficulty swallowing,

episodic speech problems, psoriasis, acid reflux, and genital

herpes. (Id.)

B. Medical Treatment and Opinion of Treating Physician

Dr. Hasit Thakore

On May 13, 2015, Dr. Hasit Thakore, M.D., a board-

certified neurologist at TJH Medical Services who had been

treating Plaintiff since his stroke in 2011, determined in a

stroke impairment questionnaire that Plaintiff suffered from a

CVA in 2011 as well as from brain tumor surgery between the ages

of seven to eight, from which he experienced residual brain

damage and a brain shunt. (Tr. at 283.) Dr. Thakore opined

that Plaintiff’s prognosis for recovery to full or partial

functioning was poor. (Id.) In support of his diagnosis, Dr.

Thakore identified the following positive clinical findings:

paresthesia in the right half of the body, tremor or involuntary

movement in the upper right half of the body, ataxia requiring a

cane to ambulate, decreased sensation on the right side,

aphasia, dysarthria, slow speech, and forgetfulness at times.

(Id. at 284.) Dr. Thakore identified the following laboratory

and diagnostic test results to support his diagnosis: MRI, CT

scan, and clinical exam. (Id.) Dr. Thakore identified the

following symptoms: poor coordination, headaches, difficulty

remembering, weakness, unstable walking, numbness, sensory

disturbance, fatigue, speech/communication difficulties,

difficulty concentrating, and ataxia. (Id. at 284-285.) Dr.

Thakore indicated Plaintiff’s symptoms and functional

limitations were reasonably consistent with Plaintiff’s physical

and emotional impairments, and that Plaintiff had significant

and persistent disorganization of motor function in two

extremities resulting in sustained disturbance of gross and

dexterous movement or gait and station as a result of his CVA.

(Id. at 286-286.) Dr. Thakore, asked to estimate Plaintiff’s

residual functional capacity (“RFC”) if placed in a competitive

five day a week work environment on a sustained basis, failed to

circle (as instructed) how many hours plaintiff could sit,

stand, or walk in an eight-hour day, instead writing-in next to

the question that Plaintiff was “disabled to work.” (Id. at

286.) Dr. Thakore noted that in the context of a competitive

five day a week work environment on a sustained basis, Plaintiff

could never lift or carry zero to five pounds. (Id.) Dr.

Thakore indicated that Plaintiff was incapable of even “low

stress” work because of his brain surgery and CVA, which would

produce “good days” and “bad days,” and when asked to estimate

how often Plaintiff would be absent from work as a result of his

impairments wrote: “[Plaintiff has] chronic daily symptoms and

is disabled to work.” (Id. at 287.)

On July 15, September 16, October 7, and December 16,

2015, Plaintiff was seen by Dr. Thakore, who reported no change

in diagnosis and no improvement from Plaintiff’s disability from

CVA, brain tumor, and chronic genital herpes. (Id. at 307, 310,

313.) On October 7, 2015 Plaintiff received an additional head

CT scan, which demonstrated a suboccipital craniectomy,

calcifications inferiorly along the right cerebellar hemisphere,

severe cerebellar atrophy, ex vacuo dilation of the fourth

ventricle, a ventricular shunt via a right frontal approach

demonstrating a tip projecting over the frontal horn of the

right lateral ventricle, and a prior ventriculostomy on the

contralateral frontal lobe. (Id. at 340.) Plaintiff was seen

multiple times over the next two and a half years after the date

last insured by Dr. Thakore and other doctors at TJH Medical

Services with no noted improvements. (See id. 340-359.)

C. Medical Treatment and Opinion of Dr. Pedro D. Ong

On May 8, 2015, Dr. Pedro D. Ong, M.D. completed a

disability impairment questionnaire. (Tr. at 277-281.) As is

also the case with Dr. Ong’s treatment records from January 2,

2015 - May 3, 2017, much of Dr. Ong’s diagnoses and reported

symptoms are illegible. (Id. at 277-281, 372-376.)

Nevertheless, Dr. Ong clearly wrote that he does not perform

functional evaluations and “slashed through” the questionnaire—

or otherwise left responses to its questions blank—relating to

Plaintiff’s functional limitations, including Plaintiff’s

ability to sit during an eight-hour workday. (Id. at 279.) In

an electronic message on September 6, 2017, Dr. Ong reaffirmed

that he does not perform functional evaluations. (Id. at 414.)

D. Medical Treatment and Opinion of Dr. Elaine Schiesel

On February 8, 2017, Plaintiff was seen by Dr. Elaine

Schiesel, M.D., a doctor at Jamaica Hospital Medical Center, for

a follow up neurosurgery clinic visit. (Id. at 362-363.) Dr.

Schiesel’s progress notes indicated Plaintiff had a history of

medullary CVA “now with residual ataxia, weakness, numbness, and

dysphagia.” (Id. at 362.) Dr. Schiesel performed an

examination and determined the following: 5/5 strength in upper

and lower extremities, except for lower extremity flexion, which

was 4-5/5; 1-2/2 reflexes; and intact cranial nerves. (Id. at

323.)

E. Consultative Opinion of Dr. James Greco

On July 8, 2017 Dr. James Greco, M.D., a Disability

Determination Services (“DDS”) medical consultant, provided a

consultative examination of the record. (Id. at 74-76.) Dr.

Greco noted the following: Plaintiff was 38 years old, had a

brain tumor at age 8 with a ventriculoperitoneal shunt placed at

that time, and had a medullary stroke in December of 2012 with

residual ataxia, weakness, numbness, and dysphagia. (Id. at

75.) Dr. Greco also noted Plaintiff had recent onset hearing

loss in his right ear with 4% speech discrimination, while his

left ear hearing remained normal with a 100% speech

discrimination score. (Id.) Dr. Greco opined that findings

from Plaintiff’s March 3, 2017 examination with Dr. Thakore were

“markedly different from those described” with Dr. Schiesel on

February 8, 2017, but that there was no indication of any

neurologic event since December 2012, no medical reason to think

Plaintiff’s stroke residuals would have changed over time, and

no history of an event that could reasonably explain the

difference between the February and March 2017 exam findings.

(Id.) Dr. Greco indicated that neither of the exam findings

would satisfy the criteria of Listing 11.04(B)1 but recommended

DDS to obtain a current neurologic exam to clarify Plaintiff’s

neurologic status. (Id.)

Two days later, on July 10, 2017, Dr. Greco indicated

that additional evidence was necessary to clarify Plaintiff’s

neurologic status considering the difference in neurologic exam

findings from the treating sources in February and March of

2017. (Id. at 76.) Dr. Greco noted that Plaintiff’s date last

insured was in December of 2015 and that, therefore, obtaining

the requested clarification “will not help to assess claimant’s

clinical or functional status at his date last insured.” (Id.)

1 The term “Listing” refers to the listed impairments in Title 20, Code of

Federal Regulations (“C.F.R.”) Part 404, Subpart P, Appendix 1, including

vascular insult to the brain under Listing 11.04.

Dr. Greco further stated that “evidence now in file is

insufficient to evaluate claimant’s condition prior to [the]

date last insured, but the detailed neurologic exam performed at

[the] neurosurgery clinic visit with Dr. Schiesel on February 8,

2017, strongly suggests that Listing 11.04(B) was not met at the

date last insured.” (Id.)

F. Plaintiff Testimony

Plaintiff testified that he has not worked since his

first stroke in 2011 and that his condition has worsened over

time. (Joint Stip. at 12; Tr. at 50.) When asked, Plaintiff

responded that he could walk for half an hour with a cane for a

total distance of one or two blocks and that he could sit for 10

or 15 minutes before needing to move because his back felt

tightened. (Tr. at 50-51, 57.) When asked if he believes he

would be able to perform a job sitting down, Plaintiff responded

that he could not because he is unable to sit continuously.

(Id. at 53.) Plaintiff additionally testified that he does not

believe he could perform a job for eight hours straight because

he would likely fall asleep. (Id. at 54.) Plaintiff explained

that he naps between two and three hours during the day because

of problems he has sleeping at night due to intense back pain,

anxiety, and panic attacks. (Id. at 54-55, 60.) Plaintiff

averred that to relax himself he lies flat down on his back, as

it is the only time he is untroubled by his back pain. (Id. at

55.)

Plaintiff also represented that he lost hearing in his

right ear after his stroke and that his right ear rings

persistently every day, often distracting him. (Id. at 51-52,

59.) Plaintiff testified that he believes he can lift about 10

pounds and that he helps his grandmother with grocery shopping.

(Id. at 52.) Plaintiff testified that his grandmother does his

laundry at home, and that although he can shower and dress

himself, he has to “take [his] time” doing so due to back pain

and forgetfulness. (Id.) Plaintiff also testified that

although he has a driver’s license that he acquired before

suffering his strokes, he has not driven since. (Id. at 56.)

Plaintiff represented that he has problems with communication

because of slurred speech as well as difficulties comprehending

and following conversations. (Id. at 56-57.) Plaintiff also

testified that he has problems with his balance; when he walks

his right leg sometimes either drags behind him or he has

problems picking the leg up, and that his right arm feels weak.

(Id. at 58.)

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 decision 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

I. New Regulations Regarding Evaluation of Medical Opinion

Evidence

Previously, the SSA followed the “treating physician

rule,” which required the agency to give controlling weight to a

treating source’s opinion, so long as it was “well-supported by

medically acceptable clinical and laboratory diagnostic

techniques” and not “inconsistent with the other substantial

evidence” in the record. 20 C.F.R. § 416.927(c)(2). The 2017

regulations changed this standard for DIB applications filed “on

or after March 27, 2017.” Id. § 404.927. As Plaintiff filed

the instant application on March 28, 2017, the new regulations

apply to this action. (Tr. at 19, 88.)

Pursuant to the new regulations, the Commissioner will

no longer “defer or give any specific evidentiary weight,

including controlling weight, to any medical opinion(s) or prior

administrative medical finding(s), including those from [a

claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a).

Instead, when evaluating the persuasiveness of medical opinions,

the Commissioner will consider the following five factors: (1)

supportability; (2) consistency; (3) relationship of the source

with the claimant, including length of the treatment

relationship, frequency of examination, purpose of the treatment

relationship, extent of the treatment relationship, and whether

the relationship is an examining relationship; (4) the medical

source’s specialization; and (5) other factors, including but

not limited to “evidence showing a medical source has

familiarity with the other evidence in the claim or an

understanding of [the SSA] disability program's policies and

evidentiary requirements.” Id. § 404.1520c(c)(5).

The most important factors of a medical opinion in

evaluating persuasiveness are supportability and consistency.

Id. § 404.1520c(a). With respect to the supportability factor,

the regulations provide that “[t]he more relevant the objective

medical evidence and supporting explanations presented by a

medical source are to support his or her medical opinion(s) or

prior administrative medical finding(s), the more persuasive the

medical opinions or prior administrative medical finding(s) will

be.” Id. § 404.1520c(c)(1). As to the consistency factor, the

regulations provide that “[t]he more consistent a medical

opinion(s) or prior administrative medical finding(s) is with

the evidence from other medical sources and nonmedical sources

in the claim, the more persuasive the medical opinion(s) or

prior administrative medical finding(s) will be.” Id.

§ 404.1520c(c)(2).

The ALJ must articulate her consideration of the

medical opinion evidence, including how persuasive she finds the

medical opinions in the case record. Id. at § 404.1520c(b).

“Although the new regulations eliminate the perceived hierarchy

of medical sources, deference to specific medical opinions, and

assigning ‘weight’ to a medical opinion, the ALJ must still

articulate how [he or she] considered the medical opinions and

how persuasive [he or she] find[s] all of the medical opinions.”

Andrew G. v. Comm'r of Soc. Sec., No. 19-cv-0942 (ML), 2020 WL

5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (quotations and citation

omitted). Specifically, the ALJ must explain how she considered

the “supportability” and “consistency” factors for a medical

source’s opinion. 20 C.F.R. §§ 404.1520c(b)(2). The ALJ may,

but is not required to, explain how she considered the remaining

factors. Id. When the opinions offered by two or more medical

sources about the same issue are “both equally well-supported

... and consistent with the record ... but are not exactly the

same,” however, the ALJ shall articulate how he considered the

remaining factors in evaluating the opinions. 20 C.F.R.

§ 404.1520c(b)(3).

Even though ALJs are no longer directed to afford

controlling weight to treating source opinions—no matter

how well supported and consistent with the record they

may be—the regulations still recognize the “foundational

nature” of the observations of treating sources, and

“consistency with those observations is a factor in

determining the value of any [treating source's]

opinion.”

Soto v. Comm'r of Soc. Sec., No. 19-cv-4631 (PKC), 2020 WL

5820566 (E.D.N.Y. Sept. 30, 2020) (quoting Shawn H. v. Comm'r of

Soc. Sec., No. 19-cv-113 (JMC), 2020 WL 3969879, at *6 (D. Vt.

July 14, 2020) (quoting Barrett v. Berryhill, 906 F.3d 340, 343

(5th Cir. 2018))).

II. The ALJ’s Disability Determination

Applying the five-step sequential process to determine

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

Section 416.971, the ALJ determined at step one that plaintiff

did not engage in substantial gainful activity during the period

from his alleged onset date of April 16, 2015, through the date

last insured on December 31, 2015. (Tr. At 19.) At step two,

the ALJ determined that plaintiff suffered from the severe

impairments of major depressive disorder, anxiety disorder, post

cerebrovascular accident with residuals, and a hearing

impairment. (Id.)

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

in Title 20 C.F.R. Part 404, Subpart P, Appendix 1, including

impairments to special senses and speech under Listing 2.00,

vascular insult to the brain under Listing 11.04, depressive,

bipolar, and related disorders under Listing 12.04, and anxiety

and obsessive compulsive disorders under Listing 12.06. (Id.);

20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526.

At step four, the ALJ determined that Plaintiff had

the RFC to perform sedentary work as defined in Title 20 C.F.R.

Section 404.1567(a). (Tr. at 21.) The ALJ found Plaintiff

could climb ramps and stairs occasionally; could never climb

ladders, ropes, or scaffolds; used a cane for ambulation; could

stoop, crouch, and crawl occasionally; could hear and understand

simple oral instructions; could perform simple, routine tasks;

and could make simple work-related decisions. (Id.)

In making her RFC determination, the ALJ found the

opinion of Dr. Shtock “persuasive.” (Id. at 30.) The ALJ

reasoned that Dr. Shtock “is a medical doctor and examining

source with an appropriate area of expertise.” (Id.)

Additionally, the ALJ found Dr. Shtock’s opinions “largely

consistent with his own clinical findings and with the medical

evidence of record for the period at issue.” (Id.) The ALJ

also found, however, that Dr. Shtock’s examination was performed

prior to the disability period and that other relevant medical

evidence “does not support a limitation of sitting for only 4

hours total in an 8-hour workday.” (Id.) Dr. Shtock’s opinion

as to this final limitation was, therefore, “not found to be

persuasive.” (Id.)

The ALJ incorrectly determined that the opinion of Dr.

Ong was that Plaintiff was able to perform a job in a seated

position for only one hour in an eight-hour workday and in a

standing/walking position for three hours in an eight-hour

workday. The ALJ’s incorrect reading is of a disability

impairment questionnaire Dr. Ong completed on May 8, 2015. (Tr.

at 277-281.) Dr. Ong wrote that he does not perform functional

evaluations and “slashed through” the questionnaire. (Id. at

279.) The ALJ incorrectly understood these markings to indicate

Dr. Ong’s opinion of Plaintiff’s seated, standing, and walking

limitations. Dr. Ong left the remainder of the questionnaire

related to functional evaluations blank and reaffirmed in an

electronic message on September 6, 2017, that he does not

perform functional evaluations. (Id. at 279-281, 414.) In her

incorrect interpretation of Dr. Ong’s disability impairment

questionnaire, the ALJ found the opinion of Dr. Ong that

Plaintiff was able to perform a job in a seated position for

only one hour in an eight hour workday “not persuasive, as

although he is a medical doctor a treating source, this opinion

of such extreme limitations in sitting to perform a job function

is wholly unsupported by any medical evidence of record,

including Dr. Ong’s own notation that claimant’s main symptom

was mild right-sided weakness and numbness.” (Id. at 30.)

Elsewhere, the ALJ also noted Dr. Ong’s conclusion was “not

supported by [Dr. Ong’s] mild findings.” (Id. at 23.) As to

Dr. Ong’s conclusion that Plaintiff was able to perform a job in

a standing/walking position for three hours in an eight-hour

workday, the ALJ found his opinion “somewhat persuasive.” (Id.

at 30.) In explanation, the ALJ offered that “the evidence of

record better supports limitation to 2 hours in an 8-hour

workday” with no further elaboration. (Id.)

The ALJ found the opinions of Dr. Thakore that (1)

Plaintiff had significant and persistent disorganization of

motor function in two extremities resulting in sustained

disturbance of gross and dexterous movement or gait and station;

and (2) Plaintiff was never able to lift or carry up to 5

pounds, “only somewhat persuasive, as the medical evidence of

record does not sufficiently support a finding that the

claimant’s documented stroke residuals caused such extreme

limitations.” (Id.) Further, the ALJ found that Dr. Thakore’s

numerous conclusions2 that Plaintiff was disabled to work were

“not persuasive.” (Id.) In finding these conclusions not

persuasive, the ALJ reasoned that “the determination of

disability is reserved to the Commissioner” and elsewhere opined

that Dr. Thakore “did not provide any specific opinions

2 Dr. Thakore concluded Plaintiff was disabled to work in examination reports

in May, July, and December of 2015; examination reports in March and July of

2016; and quarterly treatment records through the year 2017.

regarding the claimant’s functional abilities or limitations.”

(Id. at 24-25, 30.) Finally, the ALJ found Dr. Thakore’s

opinion that Plaintiff “does not have emotional factors

contributing to his symptoms as functional limitations” only

“somewhat persuasive.” (Id. at 30.) The ALJ stated that Dr.

Thakore’s “indications that the claimant’s symptoms were

constantly severe enough to interfere with attention and

concentration, or that he was incapable of even low stress

work,” were “not persuasive.” (Id. at 30-31.) The ALJ stated

that the limitations which Dr. Thakore indicated rendered

Plaintiff unable to perform low stress work during the period of

disability were also present during periods Plaintiff

successfully worked following his stroke in 2011.3 (Id. at 24.)

The ALJ further explained that “Dr. Thakore does not have an

appropriate area of expertise in mental health to provide such

opinions.” (Id. at 31.)

The ALJ found the opinion of Dr. Greco stating that

Plaintiff did not meet Listing 11.04(B) “somewhat persuasive.”

(Id.) The ALJ reasoned that Dr. Greco is “a medical doctor with

an appropriate area of expertise who reviewed all of the

evidence of record available at the time that he completed his

3 As will be explained infra, the ALJ erred in reaching this conclusion, as

Plaintiff has not worked since his stroke in 2011. (Tr. at 50, 190, 192,

197, 199, 204, 206, 211, and 240.) The Commissioner’s lawyers argue in

briefing, to no avail, that this is harmless error.

assessment” and that his “opinion is consistent with the medical

evidence as a whole.” (Id.) Dr. Greco’s opinion was only

somewhat persuasive, however, because he “did not have the

opportunity to examine the claimant.” (Id.)

The ALJ found the opinion of Dr. Joyce Graber, M.D.

who performed a consultative internal medicine examination on

April 2, 2012, “not persuasive.” (Id. at 22, 31.) Despite her

appropriate qualifications, Dr. Graber’s examination took place

prior to the alleged onset date and, therefore, reviewed only

for the purposes of developing a longitudinal history. (Id. at

22, 31.) Additionally, Dr. Graber determined Plaintiff had only

“mild limitations in bending, squatting, and other activities,”

but this was “not sufficiently consistent with the medical

evidence for the period at issue, which supports more

significant limitations during the relevant period.” (Id. at

31.)

The ALJ found that the opinions of Dr. Thakore and Dr.

Jonathan Guterman, M.D., a vascular neurologist also at TJH

Medical Services, that Plaintiff was disabled were “not

persuasive.” (Id.) The ALJ reasoned that “the issue of

disability is reserved to the Commissioner.” (Id.) The ALJ

additionally noted that several of Dr. Thakore and Dr.

Guterman’s medical opinions were provided after the date last

insured and were, for that reason, also “not persuasive.” (Id.

at 26.)

The ALJ found the opinion of Dr. Toula Georgiou,

Psy.D. that Plaintiff would have difficulties performing complex

tasks “persuasive.” (Id.) The ALJ reasoned that Dr. Georgiou

“is an examining source with an appropriate area of expertise”

and that “this portion of her opinion is consistent with her own

clinical findings and with the medical evidence as a whole.”

(Id.) As to Dr. Georgiou’s opinion that Plaintiff would have

other difficulties related to dealing with stress or that

psychiatric issues would interfere with daily functioning, the

ALJ found Dr. Georgiou’s opinion “not as persuasive.” (Id.)

The ALJ reasoned that this determination was “not sufficiently

supported by either [Dr. Georgiou’s] own clinical findings or by

the medical evidence as a whole, which support no more than mild

limitations in these areas.” (Id.)

The ALJ found the opinion of Nurse Practitioner Wendy

McIntosh, PMHNP “somewhat persuasive, as she is a treating

source” and her opinions were “consistent with the medical

evidence as a whole for the period at issue.” (Id.) The ALJ

reasoned Ms. McIntosh’s opinion was, nevertheless, only somewhat

persuasive because much of her questionnaire was marked

“unknown” and the limitations described only applied after the

date last insured. (Id.)

The ALJ found the opinion of DDS medical consultant

Dr. C. Anderson that Plaintiff’s mental impairment relating to

depressive, bipolar, and related disorders was non-severe

“unsupported” and otherwise “not persuasive.” (Id. at 28, 31.)

The ALJ reasoned that Dr. Anderson was not an examining source

and that evidence presented at the hearing supported a finding

of moderate “limitations in understanding, remembering, and

applying information,” which, taken together, more appropriately

result in a severe rating. (Id.) The ALJ also found Dr.

Anderson’s opinion that Plaintiff’s impairments did not

precisely satisfy Listing 12.04 consistent with the medical

evidence. (Id.) The ALJ concluded that, through the date last

insured, Plaintiff was “unable to perform [Plaintiff’s] past

relevant work” as a security guard. (Id. at 32.)

Lastly, at step five, the ALJ determined that

Plaintiff was capable of making a successful adjustment to other

work that exists in significant numbers in the national economy,

including as a final assembler, an assembler, and a bench hand.

(Id. at 33.) Thus, the ALJ concluded that per 20 C.F.R. §

404.1520(g) Plaintiff had not been under a disability as defined

in the Social Security Act from the alleged onset date of April

16, 2015, through the date last insured of December 31, 2015.

(Id.)

III. Analysis

On appeal, Plaintiff asserts that the ALJ: (1)

improperly evaluated medical opinion evidence, resulting in an

improper determination of Plaintiff’s RFC, and (2) improperly

evaluated Plaintiff’s subjective statements. (ECF No. 18, “Pl.

Memo.” at 2, 9.) For the reasons discussed below, the court

finds the ALJ erred by: (1) making an RFC finding in the absence

of supporting substantial evidence, and (2) failing to properly

evaluate Plaintiff’s subjective statements. Accordingly, the

court remands the case for further administrative proceedings

consistent with this Memorandum and Order.

A. The ALJ Improperly Made an RFC Finding in the Absence of

Supporting Substantial Evidence

Plaintiff contends that the ALJ improperly determined

he could perform sedentary work, substituting “[the ALJ’s] lay

interpretation of the clinical and objective testing for the

opinions from the treating and examining specialists.” (Pl.

Memo. at 7.) The court cannot determine whether the ALJ’s

conclusory statement that Plaintiff was able to carry out

sedentary work is supported by substantial evidence.

Critical to Plaintiff’s capacity to perform sedentary

work is an analysis of his ability to sit for prolonged periods

of time. “By its very nature ‘sedentary’ work requires a person

to sit for long periods of time even though standing and walking

are occasionally required.” Carroll v. Sec'y of Health & Hum.

Servs., 705 F.2d 638, 643 (2d Cir. 1983) (citing 20 C.F.R. §

404.1567(a)). More specifically, Social Security Ruling (“SSR”)

83-10 provides: “sitting should generally total approximately 6

hours of an 8-hour workday” for sedentary work. See SSR 83-10,

1983 WL 31251, at *5 (1983); see also Troupe v. Heckler, 618 F.

Supp. 248, 254 (S.D.N.Y. 1985) (Remanding where the claimant was

determined unable to perform sedentary work because he could

rarely, if ever, sit for the six or more hours required for

sedentary work); Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.

2004) (Noting a required capacity to sit for six hours in an

eight-hour workday to qualify for sedentary work).

Despite the ALJ’s conclusion that Plaintiff could

perform sedentary work, there is no medical opinion in the

record indicating Plaintiff was able to sit for the required six

hours in an eight-hour workday. To the contrary, both the

consultative examiner opinion of Dr. Shtock as well as the

opinion of Plaintiff’s longtime treating physician, Dr. Thakore,

indicate that Plaintiff would be unable to sit for at least six

hours in an eight-hour workday. Dr. Shtock determined that

Plaintiff could sit for a maximum of only four hours total in an

eight-hour workday. (Tr. at 271; Joint Stip. at 10.) Dr.

Thakore, when asked specifically in a stroke impairment

questionnaire to estimate Plaintiff’s ability to sit in an

eight-hour day if placed in a competitive five day a week work

environment on a sustained basis, wrote that Plaintiff was

disabled to work. (Tr. at 286.) The ALJ identified no other

medical source in the record expressing an opinion on

Plaintiff’s functional limitations regarding sitting for

sustained periods, let alone sitting for sustained periods in

the context of a competitive five day a week work environment.

Nevertheless, the ALJ rejected the opinions of both

Dr. Shtock4 and Dr. Thakore and determined that Plaintiff could

perform sedentary work. (Tr. at 21, 30.) Plaintiff argues the

ALJ made this determination without citing “to any specific

medical facts nor even persuasive non-medical evidence that

supports the sedentary RFC found for Mr. Figueroa.” (Pl. Memo.

at 8.) For the reasons described above, and because the ALJ

never elaborated beyond concluding Plaintiff could perform

sedentary work, the court finds that the record supports

Plaintiff’s position. The Commissioner’s lawyers attempt to

defend the ALJ’s insufficient reasoning:

The ALJ may “‘choose between properly

submitted medical opinions,’ Balsamo v.

4 Notably, the ALJ determined that Dr. Shtock’s opinion was “persuasive” as to

all findings except for his determination that Plaintiff was capable of only

sitting for four hours in an eight-hour workday, which was “not found to be

persuasive.” (Tr. at 30.) As an explanation for this divergence, the ALJ

reasoned that Dr. Shtock’s examination “was performed prior to the period at

issue.” (Id.) It is unclear to this court why the ALJ’s reasoning would

render Dr. Shtock’s opinion unpersuasive as to Plaintiff’s sedentary

limitations while the ALJ simultaneously found the remainder of Dr. Shtock’s

opinion “persuasive.” (Id.)

Chater, 142 F.3d 75, 81 (2d Cir. 1998),

including the report of a consultative

physician, see Mongeur v. Heckler, 722 F.2d

1033, 1039 (2d Cir. 1983).” Heaman v.

Berryhill, 765 F. App'x 498, 500 (2d Cir.

2019).

(Def. Memo. at 6.) Defendant’s own response is inconsistent

with the ALJ’s decision. The ALJ did not choose a submitted

medical opinion in the record that disagreed with Dr. Shtock and

Dr. Thakore, and there is no alternative medical opinion in the

record opining on Plaintiff’s capacity to sit for sustained

periods for the ALJ to choose from. Defendant’s cite to

Balsamo, omits the remainder of the relevant quotation: “[W]hile

an [ALJ] is free to . . . choose between properly submitted

medical opinions, he is not free to set his own expertise

against that of a physician who [submitted an opinion to or]

testified before him.” Balsamo v. Chater, 142 F.3d 75, 81 (2d

Cir. 1998) (quoting McBrayer v. Sec'y of Health & Hum. Servs.,

712 F.2d 795, 799 (2d Cir. 1983) (internal quotation marks and

citations omitted). Where, as here, the ALJ did not choose

between medical opinions in the record and did not otherwise

provide a sufficient explanation for her decision, it appears

the ALJ may have set her own expertise against that of the

reviewing physicians. Finally, despite Defendant’s citation of

Mongeur, the only report of a consultative physician relevant to

Plaintiff’s sedentary capacity is Dr. Shtock’s, which the ALJ

not only did not rely upon, but also explicitly discounted.

(Tr. at 30.)

Consistent with the above, remand is appropriate.

“Because an RFC determination is a medical determination, an ALJ

who makes an RFC determination in the absence of supporting

expert medical opinion has improperly substituted his own

opinion for that of a physician, and has committed legal error.”

Hilsdorf v. Comm'r of Soc. Sec., 724 F. Supp. 2d 330, 347

(E.D.N.Y. 2010). See Woodford v. Apfel, 93 F. Supp. 2d 521, 529

(S.D.N.Y. 2000) (finding that “an ALJ commits legal error when

he makes a residual functional capacity determination based on

medical reports that do not specifically explain the scope of

claimant’s work-related capabilities”); Zorilla v. Chater, 915

F. Supp. 662, 666–67 (S.D.N.Y. 1996) (finding that “the lay

evaluation of an ALJ is not sufficient evidence of the

claimant’s work capacity; an explanation of the claimant’s

functional capacity from a doctor is required”); Legall v.

Colvin, No. 13-cv-1426 (VB), 2014 WL 4494753, at *4 (S.D.N.Y.

Sept. 10, 2014) (remanding where the ALJ “committed legal error

in arriving at his RFC determination without citation to any

expert medical opinion in support thereof”); Josephs v. Comm'r

of Soc. Sec., No. 18-cv-838 (AMD), 2019 WL 1993992, at *2

(E.D.N.Y. May 6, 2019) (remanding where “the ALJ disregarded the

only expert medical opinion about the plaintiff’s condition and

substituted her own,” determining plaintiff could perform

sedentary work where “no physician gave an opinion with these

limitations”).

The Commissioner’s attorneys offer new explanations

for the ALJ’s determination that Plaintiff could sit for at

least the required six hours. (Def. Memo. at 7-9.) These new

explanations to this court include analyses of opinions from Dr.

Shtock, Dr. Ong, Dr. Schiesel, and Dr. Greco. (Id.)

Defendant’s arguments cannot remedy the ALJ’s initial,

inadequate decision because they are plainly not the bases upon

which the ALJ denied Plaintiff’s claim, or they are otherwise

inconsistent with the record. “The courts are not permitted to

‘affirm an administrative action on grounds different from those

considered by the agency.’” Burgess v. Astrue, 537 F.3d 117,

131 (2d Cir. 2008) (quoting Melville v. Apfel, 198 F.3d 45, 52

(2d Cir. 1999)). Additionally, “a reviewing court ‘may not

accept appellate counsel’s post hoc rationalizations for agency

action.’” Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)

(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S.

156, 168 (1962)).

For example, Defendants argue that Dr. Shtock offered

a narrative opinion that Plaintiff has “no limitation with

sitting long periods,” but this was never mentioned by the ALJ,

and Defendants also later jointly stipulated to Dr. Shtock’s

more specific findings that Plaintiff could only sit for four

hours in an eight-hour workday. (Def. Memo. at 8; Joint Stip.

at 10.) Defendants also argue that Dr. Ong marked on a

disability impairment questionnaire that it was not medically

necessary for Plaintiff to avoid continuous sitting. (Def.

Memo. at 7.) This explanation is in direct conflict with the

ALJ’s opinion, which determined Dr. Ong’s stray marks indicated

Plaintiff’s inability to sit for one hour continuously. (Tr. at

30.) Additionally, though the ALJ found Dr. Ong’s finding as to

Plaintiff’s ability to sit continuously “not persuasive,”

Defendant now argues that Dr. Ong’s finding on the matter was

persuasive. Notwithstanding these contradictions, Dr. Ong also

wrote on the questionnaire at issue that he did not perform

functional evaluations and later reaffirmed this by electronic

message. (Id. at 279, 414.) Lastly, Defendants argue that

support for the ALJ’s findings was provided by both Dr. Schiesel

and Dr. Greco. (Def. Memo. at 8.) Dr. Schiesel, however, is

not mentioned in the ALJ’s RFC determination, nor by name in the

ALJ’s decision as a whole. (Id. at 13-33.) While Dr. Greco is

mentioned, the ALJ only ever considered his opinion as to

Listing 11.04(B), and Dr. Greco never made any findings as to

Plaintiff’s functional limitations related to sitting. (Tr. at

30.)

Though the ALJ’s inadequately supported RFC finding

is a sufficient basis for remand for further proceedings, this

court also directs the ALJ to appropriately evaluate medical

opinion evidence. For example, in addition to the ALJ

incorrectly interpreting Dr. Ong’s disability impairment

questionnaire, the ALJ also discounted Dr. Thakore’s medical

opinion in part based on an inaccurate belief that Plaintiff

successfully worked following his stroke in 2011. (Tr. at 24.)

The ALJ further discounted Dr. Thakore’s opinion when she

determined: (1) that reporting emotional factors did not

contribute to Plaintiff’s symptoms was incongruous with also

reporting issues with attention and concentration following a

CVA; and (2) that Dr. Thakore, a board-certified neurologist,

did not have appropriate expertise in “mental health” to provide

opinions on issues with attention and concentration following a

CVA. (Tr. at 24, 31.) The court finds that the ALJ discounted

Dr. Thakore’s opinions related to these two determinations

without substantial 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). On remand, the ALJ should appropriately evaluate

medical opinion evidence to make specific findings as to

Plaintiff’s ability to perform sedentary work, especially with

reference to Plaintiff’s ability to sit continuously and for how

long. The ALJ should then determine, in sufficient detail and

based on those specific findings, whether Plaintiff has the RFC

to perform sedentary work.

B. The ALJ Improperly Evaluated Plaintiff’s Subjective

Statements

The ALJ found in a conclusory statement that

Plaintiff’s:

medically determinable impairments could

reasonably be expected to cause the alleged

symptoms; however, the claimant’s statements

concerning the intensity, persistence and

limiting effects of these symptoms are not

entirely consistent with the medical

evidence and other evidence in the record.

(Tr. at 29.) Because the ALJ failed to adequately assess the

credibility of Plaintiff’s statements, remand is required.

The ALJ properly identified the required two-step

process for evaluating Plaintiff’s subjective statements, first

determining whether there is an underlying medically

determinable physical or mental impairment “that could

reasonably be expected to produce the claimant’s pain or other

symptoms,” and second, once such an impairment has been shown,

“evaluat[ing] the intensity, persistence, and limiting effects

of the claimant’s symptoms to determine the extent to which they

limit the claimant’s functional limitations.” (Tr. at 12.); see

also 20 C.F.R. § 404.1529(a)-(b). Social Security Ruling

(“SSR”) 16-3p establishes that the ALJ must evaluate at step two

using “the [seven] factors set forth in 20 CFR 404.1529(c)(3)

and 416.929(c)(3).” SSR 16-3p, 2017 WL 5180304, at *7 (October

25, 2017). These include:

(1) Daily activities; (2) The location,

duration, frequency, and intensity of pain or

other symptoms; (3) Factors that precipitate

and aggravate the symptoms; (4) The type,

dosage, effectiveness, and side effects of any

medication an individual takes or has taken to

alleviate pain or other symptoms; (5)

Treatment, other than medication, an

individual receives or has received for relief

of pain or other symptoms; (6) Any measures

other than treatment an individual uses or has

used to relieve pain or other symptoms (e.g.,

lying flat on his or her back, standing for 15

to 20 minutes every hour, or sleeping on a

board); and (7) Any other factors concerning

an individual's functional limitations and

restrictions due to pain or other symptoms.

Id. at *7-8; see also 20 C.F.R. § 404.1529(c). Further, “the ALJ

must consider all of the evidence in the record and give specific

reasons for the weight accorded to the claimant’s testimony.”

Alcantara, 667 F.Supp.2d at 277–78 (citing Lugo v. Apfel, 20

F.Supp.2d 662, 663 (S.D.N.Y. Sept. 28, 1998)). “A finding that

the witness is not credible must . . . be set forth with sufficient

specificity to permit intelligible plenary review of the record.”

Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir.

1988) (citing Carroll v. Sec’y of Health & Human Servs., 705 F.2d

638, 643 (2d Cir. 1983)). “Where the ALJ fails sufficiently to

explain a finding that the claimant’s testimony was not entirely

credible, remand is appropriate.” Valet v. Astrue, No. 10-cv-3282

(KAM), 2012 WL 194970, at *22 (E.D.N.Y. Jan. 23, 2012) (citing

Tornatore v. Barnhart, No. 05-cv-6858 (GEL), 2006 WL 3714649, at

*6 (S.D.N.Y. Dec. 12, 2006)).

The ALJ’s finding that Plaintiff’s allegations were

not credible was based on several observations: the ALJ noted

Plaintiff’s medical treatment had been conservative, he had been

hospitalized only on rare occasion, his medications were not

unusual for either type or dosage and did not appear to have

adverse side effects, and that he was engaged in activities such

as performing personal care, light cooking, cleaning, shopping,

and traveling independently by public transportation. (Tr. at

30.) The ALJ’s abbreviated analysis did not clearly evaluate

the plaintiff’s credibility according to the seven factors above

as required by the regulations and SSR 16-3p cited supra. For

example, the ALJ neglected to consider the location, duration,

frequency, and intensity of Plaintiff’s pain, as well as the

factors that precipitate and aggravate Plaintiff’s symptoms

(such as sitting for prolonged periods of time). The ALJ also

failed to consider measures other than treatment Plaintiff uses

to relieve pain (such as lying flat on his back). Accordingly,

the ALJ’s incomplete analysis warrants remand. See, e.g.,

Wright v. Astrue, No. 06-cv-6014 (FB), 2008 WL 620733, at *3

(E.D.N.Y. Mar. 5, 2008); Tornatore, 2006 WL 3714649, at *6;

Valet, 2012 WL 194970, at *22 (remanding where the ALJ did not

consider all seven of the factors required.) On remand, the ALJ

must thoroughly evaluate plaintiff’s credibility with sufficient

specificity, and specifically apply the seven factors.

CONCLUSION

For all the foregoing reasons, 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/ Kiyo A. Matsumoto

Hon. Kiyo A. Matsumoto

United States District Judge

Eastern District of New York

Dated: September 21, 2021

Brooklyn, New York