# Vargas v. Saul

> District Court, E.D. New York · February 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10307488

## Case

- **Court:** District Court, E.D. New York
- **Decided:** February 15, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
MADELINE DEL CARMEN VARGAS,

Plaintiff,
MEMORANDUM & ORDER
- against - 20-CV-4363 (PKC)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
Plaintiff Madeline Del Carmen Vargas brings this action under 42 U.S.C. § 405(g), seeking
judicial review of the Social Security Administration’s (“SSA”) denial of her claims for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The parties have cross-
moved for judgment on the pleadings. (Dkts. 23, 24, 26.) For the reasons set forth below, the
Court grants Plaintiff’s motion for judgment on the pleadings and denies the Commissioner’s
cross-motion.
BACKGROUND
I. Factual and Procedural Background
Plaintiff has suffered from chronic lower back pain since at least October 2015. (Tr. 159.1)
In December 2015, Plaintiff began treatment with Dr. Jamie Nieto, a neurosurgery specialist, who
diagnosed intervertebral disc disorder. (Tr. 917.) Following the diagnosis, Plaintiff began
discussing surgery with Drs. David Rosen and Cesar Lassalle. (Tr. 496–498, 630–695.)
Meanwhile, Plaintiff was working in the restaurant industry, as a cook helper and fast-food cook,
until she stopped working due to back pain around January 2017. (See Tr. 166, 311.) On January

1 All references to “Tr.” refer to the consecutively paginated Administrative Transcript
3, 2017, Plaintiff protectively filed for DIB and SSI, claiming an amended onset date of February
1, 2017,2 due to degenerative disc disease, herniated discs lumbar spine, lumbar radiculopathy,
obesity, depression, left hip degenerative joint disease. (Tr. 154, 157.)
On February 1, 2017, following successful trials with a temporary spinal cord stimulator,

Plaintiff underwent surgery with Dr. Rosen for the placement of a permanent spinal cord
stimulator. (Tr. 66, 580–81.) Following the surgery, Plaintiff experienced some reduction in pain;
however, in April, Plaintiff reported left-sided lower extremity numbness to Dr. Lassalle. (Tr.
570.) A CT scan revealed moderate to severe central canal stenosis and moderate bilateral neural
foraminal narrowing.3 (Tr. 570–575.) Plaintiff was prescribed Methocarbamol and Hydrocodone
for the pain by Dr. Lourdes Varela-Batista. (Tr. 644–45.) Plaintiff did not return to work following
the surgery and subsequently lost her job. (See Tr. 66, 311.) On April 19, 2017, Plaintiff’s claims
for benefits were initially denied. (Tr. 154.)
In May 2017, Plaintiff began treatment at Park Place Behavioral Health Care with Martha
Bozeman, a license clinical social worker (“LCSW”). (Tr. 589–610.) Plaintiff reported feeling

frequently depressed and anxious given the years of pain and the financial difficulties caused by
attending to her pain. (Tr. 594.) Additionally, Plaintiff reported that her recent surgery concerned
her given the frequent leg numbness. (Id.) Plaintiff’s depressive symptoms included depressed
mood, diminished interest, insomnia, fatigue, poor appetite, poor concentration, irritability,

2 Plaintiff originally alleged an onset date of October 7, 2015. (Tr. 66.).
3 “Bilateral foraminal stenosis details when the spinal nerve root is compressed on both
sides due to narrowing of the foramen that may be caused by an enlarged joint, a collapsed disc
space or a foraminal herniated disc.” Spine-Health, Bilateral Foraminal Stenosis Definition,
https://www.spine-health.com/glossary/bilateral-foraminal-stenosis#:~:text=Bilateral%
20foraminal%20stenosis%20details%20when,or%20a%20foraminal%20herniated%20disc (last
visited Feb. 15, 2022).
anxiety, preoccupation, guilt, hopelessness, crying spells, low energy levels, and isolating
behaviors. (Tr. 594–96.) Anxiety and manic symptoms were also reported, including mood
swings, racing thoughts, distractibility, impulsivity, and excess worry with a history of sexual
abuse and trauma. (Id.) Plaintiff was diagnosed with generalized anxiety disorder, and unspecified

depressive disorder/major depressive disorder, recurrent episode. (Tr. 599.) LCSW Bozeman
gave Plaintiff a Global Assessment of Function (“GAF”) score of 47, which indicates serious
symptoms or impairments.4 (Id.) That diagnosis was later revised to bipolar disorder unspecified
and general anxiety disorder, and Plaintiff was prescribed Risperidone and Vistaril. (Tr. 607–08.)
Between April 2017 and early July 2017, three non-examining medical experts provided
an opinion on Plaintiff’s physical and mental impairments. On April 18, 2017, Dr. Lawrence
Solberg provided an opinion on Plaintiff’s physical impairment, finding that Plaintiff was capable
of engaging in a range of light work. (Tr. 109–116.) On June 28, 2017, Dr. Wendy Silver found
that Plaintiff had no to mild limitations due to her mental impairments. (Tr. 128.) Finally, on July
5, 2017, Dr. Ronald Machado concluded that Plaintiff’s physical impairments did not significantly

limit her ability to work. (Tr. 131–32.) On July 6, 2017, Plaintiff’s benefits were again denied
following reconsideration. (Tr. 154.) Plaintiff then requested a hearing before an Administrative
Law Judge (“ALJ”). (Id.)
Through the same period, Plaintiff reported worsening leg numbness and began using a
cane. (Tr. 582, 619–23, 625.) Drs. Rosen and Lassalle began discussing removing the spinal cord
stimulator given the leg numbness. (Tr. 584, 622.) In September 2017, Plaintiff reported that she

4 A GAF score of between 41 and 50 indicates “[s]erious symptoms (e.g., suicidal ideation,
severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational,
or school functioning (e.g., no friends, unable to keep a job).” Zabala v. Astrue, 595 F.3d 402,
406 n.2 (2d Cir. 2010) (quoting American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders, at 34 (4th ed. rev. 2000)).
no longer felt any significant pain relief from the stimulator and that the numbness had become
severe. (Tr. 73–74, 625.) And, in November 2017, the stimulator was removed. (Tr. 25, 919,
957.) Following the removal of the stimulator, Plaintiff’s pain became severe, causing her to visit
the emergency room five times in 2018. (Tr. 63.) In addition to the emergency room visits,

Plaintiff continued treatment with several physicians and mental health experts.
Plaintiff continued to see Dr. Nieto up until the ALJ hearing, and received several physical
examinations, reporting high levels of lumbar and thoracic spine pain. (Tr. 900–12.) Dr. Nieto
diagnosed Plaintiff with low back and thoracic pain and displacement of lumbar intervertebral disc
without myelopathy. (Tr. 909–14.) Dr. Nieto observed “a lot of thoracic pain where the stimulator
leads were implanted.” (Tr. 901, 914.) On October 1, 2018, Dr. Nieto performed a L4-5 left
hemilaminectomy, medial facetectomy, and excision of a herniated disc. (Tr. 697–98.) During a
physical therapy follow-up, it was noted that Plaintiff was “at least 80% but [less than] 100%
impaired, limited or restricted.” (Tr. 950.)
Plaintiff also saw Dr. Bieber for her post-stimulator removal pain. Plaintiff reported pain

and difficulty walking, standing, and lying down. (Tr. 957–58.) Dr. Bieber noted on several
occasions that Plaintiff was using a cane to walk and was limping. (Tr. 19, 25, 31, 935–37, 957.)
Dr. Bieber ordered MRI and x-ray imaging of Plaintiff, finding that Plaintiff now had left
quadriceps muscle atrophy, along with several issues with the L2-3, L3-4, and L5-S1 discs and L3
and L4 nerve roots. (Tr. 22, 34, 40, 919–924.) Dr. Bieber diagnosed lumbar radiculopathy and a
herniated disc and prescribed Tramadol. (Tr. 929, 961.)
Plaintiff also met with Dr. Loveena Singh on several occasions due to frustrations with
pain management and her feelings of isolation. (Tr. 791.) Plaintiff noted her willingness to try a
new pain management regiment and reported her pain at 10/10. (Tr. 794.) Dr. Singh twice
diagnosed Plaintiff with unspecified thoracic, thoracolumbar and lumbosacral intervertebral disc
disorder, major depressive disorder, recurrent and severe without psychotic features, and obesity.
(Tr. 792–96.)
Plaintiff continued her mental health treatment at New York Psychotherapy and began

regularly seeing Christopher Rodriguez, MSW, from January 2019 until the ALJ hearing. (Tr.
741–72.) Plaintiff consistently reported anxiety and depression due to her back pain, increased
feelings of isolation, crying spells, loss of interest, irritability, anger, and worry over financial
matters. (Tr. 734, 739–43, 746, 758–59.) Plaintiff noted difficulties coping with the stress and
anxiety, reporting that her anxiety caused rapid heartbeats, frequent sweating, racing thoughts and
shortness of breath. (Tr. 746.) Examiners noted that Plaintiff had fair to poor recent and remote
memory and was easily distracted. (Tr. 735.) Plaintiff was diagnosed with major depressive
disorders, recurrent and moderate. (Tr. 733–35, 765–66.) Plaintiff testified at the ALJ hearing
that she began taking Buspirone, Paroxetine, and Trazodone approximately one month before the
hearing. (Tr. 77.)

On March 21, 2019, Ms. Carena Walcott, Pediatric Nurse Practitioner–Board Certified
(“PNP-BC” or “NP”), provided an opinion on Plaintiff’s work-related functional capacity. (Tr.
785–790.) NP Walcott was associated with All Care Family Medicine, the facility where Plaintiff
had been seeing Dr. Singh, and indicated she had seen Plaintiff eight times from March 16, 2018
to March 15, 2019. (Tr. 163, 785.) NP Walcott opined that Plaintiff could sit for a total of 2 hours
and stand/walk for only 1 hour in an 8-hour day. (Tr. 788.) NP Walcott could not provide an
estimate for the likely time-off Plaintiff would need as a result of her impairments and estimated
she would have approximately 15% off-task time during a typical workday. (Tr. 789.)
On April 3, 2019, Plaintiff appeared with her attorney Mark Keller for a hearing before
ALJ Michelle Allen. (Tr. 59–98.) During the hearing, the ALJ questioned vocational expert
(“VE”) Mitchell Schmidt. (Tr. 84–98.) By decision dated July 12, 2019, the ALJ found that
Plaintiff was not disabled within the meaning of the Social Security Act from February 1, 2017,

her alleged onset date, through the date of the ALJ’s decision. (Tr. 151–68.) Plaintiff requested a
review of the ALJ’s decision, which was denied by the Appeals Council on July 23, 2020. (Tr. 1–
3.) Thereafter, Plaintiff timely commenced this action.5
II. The ALJ’s Decision
In evaluating disability claims, an ALJ must adhere to a five-step inquiry. The plaintiff
bears the burden of proof at the first four steps of the inquiry; the Commissioner bears the burden
at the final step. Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). First, the ALJ determines
whether the plaintiff is currently engaged in “substantial gainful activity.” 20 C.F.R.
§ 416.920(a)(4)(i). If the answer is yes, the plaintiff is not disabled. Id. If the answer is no, the
ALJ proceeds to the second step to determine whether the plaintiff suffers from a severe
impairment. Id. § 416.920(a)(4)(ii). An impairment is severe when it “significantly limit[s] [the

5 According to Title 42, United States Code, Section 405(g),

[a]ny individual, after any final decision of the Commissioner of Social Security
made after a hearing to which [she] was a party . . . may obtain a review of such
decision by a civil action commenced within sixty days after the mailing to [her] of
notice of such decision or within such further time as the Commissioner of Social
Security may allow.

42 U.S.C. § 405(g). “Under the applicable regulations, the mailing of the final decision is
presumed received five days after it is dated unless the [plaintiff] makes a reasonable showing to
the contrary.” Kesoglides v. Comm’r of Soc. Sec., No. 13-CV-4724 (PKC), 2015 WL 1439862, at
*3 (E.D.N.Y. Mar. 27, 2015) (citing 20 C.F.R. §§ 404.981, 422.210(c)). The final decision was
issued July 23, 2020 (Tr. 1), and the Complaint was filed on September 17, 2020 (Complaint, Dkt.
1), 52 days after the presumed receipt date of the decision, rendering this appeal timely.
plaintiff’s] physical or mental ability to do basic work activities.” Id. § 416.922(a). If the
impairment is not severe, then the plaintiff is not disabled.6 Id. § 416.920(a)(4)(ii). But if the
plaintiff does suffer from an impairment or combination of impairments that is severe, then the
ALJ proceeds to the third step and considers whether it meets or medically equals one of the

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”). Id.
§ 404.1520(a)(4)(iii); see also Id. pt. 404, subpt. P, app. 1. If the ALJ determines at step three that
the plaintiff has one of the listed impairments, then the ALJ will find that the plaintiff is disabled
under the Act. Id. § 404.1520(a)(4)(iii). On the other hand, if the plaintiff does not have a listed
impairment, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”) before
continuing to steps four and five. To determine the plaintiff’s RFC, the ALJ must consider the
plaintiff’s “impairment(s), and any related symptoms, [that] may cause physical and mental
limitations that affect what [the plaintiff] can do in a work setting.” Id. § 404.1545(a)(1). The
ALJ will then use the RFC finding in step four to determine if the plaintiff can perform past
relevant work. Id. § 404.1520(a)(4)(iv). If the answer is yes, the plaintiff is not disabled. Id.

Otherwise, the ALJ will proceed to step five and determine whether the plaintiff, given their RFC,
age, education, and work experience, has the capacity to perform other substantial gainful work in
the national economy. Id. § 404.1520(a)(4)(v). If the answer is yes, the claimant is not disabled;
otherwise, the claimant is disabled and is entitled to benefits. Id.

6 In cases involving mental health, such as this one, a mental health impairment is severe
when the Plaintiff has either one extreme or two marked limitations in a broad area of functioning,
which include understanding, remembering, or applying information; interacting with others;
concentrating, persisting, or maintaining pace; or adapting or managing themselves. 20 C.F.R.
Part 404, Subpart P, App’x 1, § 12.04(B). An “extreme limitation” is defined as the inability to
function independently, appropriately, or effectively, and on a sustained basis. Id. A “marked
limitation” means functioning in this area independently, appropriately, effectively, and on a
sustained basis is seriously limited. Id.
Here, at step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since February 1, 2017. (Tr. 157.) At step two, the ALJ determined that Plaintiff had the
“following severe impairments: degenerative disc disease, herniated discs lumbar spine, lumbar
radiculopathy, obesity, depression, left hip degenerative joint disease.” (Id.) At step three, the

ALJ found that Plaintiff’s impairments did not meet or medically equal any of the listed
impairments in the Listings. (Tr. 157–58.) The ALJ then determined Plaintiff’s RFC as follows:
[T]he claimant has the residual functional capacity to perform sedentary work7 as
defined in 20 CFR 404.1567(a) and 416.967(a) except that she can never climb
ramps, stairs, ladders, ropes, or scaffolds. She is able to frequently balance with
the use of an assistive device. She can stoop and crouch occasionally, but never
kneel or crawl. She cannot work at unprotected heights or with moving mechanical
parts, and she can never operate a motor vehicle. She is able to perform simple,
routine tasks and frequently interact with supervisors and co-workers and
occasionally with the public. She must use an assistive device to ambulate.
(Tr. 158–59.) At step four, the ALJ concluded that due to her severe impairments, Plaintiff could
not perform her past work as a cook helper nor fast-food cook. (Tr. 166.) Finally, at step five, the
ALJ found that there were other jobs Plaintiff could perform, such as addresser, nut sorter, and
cuff folder, that exist in significant numbers of in the economy. (Tr. 167.) The ALJ thus concluded
that the Plaintiff was not disabled. (Id.)
STANDARD OF REVIEW
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 benefits. 42 U.S.C. § 405(g).
In reviewing a final decision of the Commissioner, the Court’s role is “limited to determining

7 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is often necessary
in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally
and other sedentary criteria are met.” 20 CFR 404.1567(a).
whether the SSA’s conclusions were supported by substantial evidence in the record and were
based on a correct legal standard.” Talavera, 697 F.3d at 151 (citations omitted). “Substantial
evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013)

(per curiam) (internal quotation marks and brackets omitted) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). In determining whether the Commissioner’s findings were based on
substantial evidence, “the reviewing court is required to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be drawn.” Id.
However, “it is up to the agency, and not this court, to weigh the conflicting evidence in the
record.” Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). If there is substantial
evidence in the record to support the Commissioner’s findings as to any fact, those findings are
conclusive and must be upheld. 42 U.S.C. § 405(g); see also Cichocki v. Astrue, 729 F.3d 172,
175–76 (2d Cir. 2013) (per curiam).
DISCUSSION
Plaintiff contends that the ALJ’s decision is not supported by substantial evidence and fails

to apply the relevant legal standards. (Plaintiff’s Motion for Judgment on the Pleadings (“Pl.’s
Mot.”), Dkt. 24-4, at 2.) For the reasons set forth below, the Court grants Plaintiff’s motion and
remands to the SSA because the ALJ failed to adequately develop the record, violated the treating
physician rule,8 and provided an RFC that was not supported by substantial evidence. See
Fontanez v. Colvin, No. 16-CV-1300 (PKC), 2017 WL 4334127, at *13–27 (E.D.N.Y. Sept. 28,

8 Although recently adopted legislation has removed the “treating physician rule”
requirement, the rule still applies to claims filed with the SSA prior to March 27, 2017. See 20
C.F.R. §§ 404.1527, 404.1520c; Revisions to Rules Regarding the Evaluation of Medical
Evidence, 82 Fed. Reg. 5844-01, 2017 WL 168819, at *5844, *5867-68 (Jan. 18, 2017).
2017) (remanding after court determined that the record had not been fully developed and that the
RFC was not supported by substantial evidence); Arzuaga v. Bowen, 833 F.2d 424, 426 (2d Cir.
1987) (remanding so that ALJ could properly comply with the treating physician rule).
Additionally, on remand, the ALJ should further explain her credibility determinations, including

her reliance on evidence of daily functioning and lack of psychiatric hospitalization. Hodge v.
Comm’r of Soc. Sec., No. 20-CV-769 (AMD), 2020 WL 7262846, at *4 (E.D.N.Y. Dec. 10, 2020)
(“On remand, the ALJ should also include a specific credibility determination, explain how she
balanced the various factors, and identify any inconsistencies between the plaintiff’s testimony
and the rest of the record.”).
I. Failure to Develop the Record and Violation of the Treating Physician Rule
“The ALJ’s failure to develop the record is a threshold issue, because the Court cannot rule
on whether the ALJ’s decision regarding [Plaintiff’s] functional capacity was supported by
substantial evidence if the determination was based on an incomplete record.” Craig v. Comm’r
of Soc. Sec., 218 F. Supp. 3d 249, 267 (S.D.N.Y. 2016) (internal quotation marks omitted); accord
Alvarez v. Comm’r of Soc. Sec., No. 14-CV-3542 (MKB), 2015 WL 5657389, at *14 (E.D.N.Y.

Sept. 23, 2015). It is well-established in this Circuit that an ALJ presiding over a social security
hearing must “affirmatively develop the record in light of the essentially non-adversarial nature of
a benefits proceeding.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Lamay v.
Comm’r of Soc. Sec., 562 F.3d 503, 508–09 (2d Cir. 2009)). This obligation exists “even where,
as here, the claimant is represented by counsel.” Merriman v. Comm’r of Soc. Sec., No. 14-CV-
3510 (PGG) (HBP), 2015 WL 5472934, at *18 (S.D.N.Y. Sept. 17, 2015) (quoting Pratts v.
Chater, 94 F.3d 34, 37 (2d Cir. 1996)). Furthermore, even though Plaintiff even did not raise the
issue, “the Court must independently consider whether the ALJ failed to satisfy his duty to develop
the record.” Prieto v. Comm’r of Soc. Sec., No. 20-CV-3941 (RWL), 2021 WL 3475625, at *10
(S.D.N.Y. Aug. 6, 2021) (collecting cases).
Here, the ALJ’s failure to obtain a medical opinion from any of Plaintiff’s treating
physicians requires remanding for further development of the record. An ALJ has “regulatory

obligations to develop a complete medical record before making a disability determination.”
Pratts, 94 F.3d at 37; see 20 C.F.R. § 416.912(b)(1). As part of that obligation, an ALJ must
attempt to obtain medical opinions—not just medical records—from a claimant’s treating
physicians. Romero v. Comm’r of Soc. Sec., No. 18-CV-10248 (KHP), 2020 WL 3412936, at *13
(S.D.N.Y. June 22, 2020) (collecting cases). To fulfill that obligation, an ALJ must make an initial
request for medical opinions and, if no opinion is received, make a follow-up request between 10
and 20 days after the initial request. Prieto, 2021 WL 3475625 at *10; 20 C.F.R
§ 404.1512(b)(1)(i). Medical opinions from treating physicians are critical because, beyond
simply diagnosing the patient’s impairment, they relate the impairment to the patient’s functional
capacity. Guillen v. Berryhill, 697 F. App’x 107, 109 (2d Cir. 2017) (“The medical records discuss

her illnesses and suggest treatment for them, but offer no insight into how her impairments affect
or do not affect her ability to work, or her ability to undertake her activities of everyday life.”).
The ALJ considered several medical opinions in her decision, but none from Plaintiff’s
treating physicians. (Tr. 165–66.) Three of the opinions considered—those of Drs. Solberg,
Machado, and Silver—were from non-examining SSA consultants. (Id.) The ALJ also considered
the opinion of NP Walcott, giving it limited weight (id.), but, as an NP, Walcott did not qualify as
an “acceptable medical source” or a “treating physician.” Puckett v. Berryhill, No. 17-CV-5392
(GBD) (KHP), 2018 WL 6625095, at *14 (S.D.N.Y. July 13, 2018); 20 C.F.R. § 404.1502(a)(7).
That is true even though NP Walcott was board-certified. See Mathew F. v. Comm’r of Soc. Sec.,
No. 20-CV-1197 (FPG), 2022 WL 202773 (W.D.N.Y. Jan. 24, 2022) The ALJ considered the
GAF score provided by LCSW Bozeman (Tr. 589–610), but GAF scores qualify as medical
opinions only if provided by an “acceptable medical source,” Mitchell v. Colvin, No. 14-CV-4154,
2015 WL 5306208, at *12 (S.D.N.Y. Sept. 10, 2015), and, as an LCSW, Bozeman was not an

“acceptable medical source,” nor a “treating physician,” for that matter, Kristina T. v. Comm’r of
Soc. Sec. Admin., No. 19-CV-135 (MAD), 2019 WL 5425261, at *5 (N.D.N.Y. Oct. 23, 2019).
The ALJ also considered a recommendation by Dr. Ranjini Patton, an emergency room physician,
that Plaintiff should not work for a period of two days given pain symptoms in January 2017. (Tr.
509.) Although the ALJ treated Dr. Patton’s recommendation as an opinion, it does not come close
to qualifying as a “medical opinion” under 20 C.F.R. § 404.1527(a)(1).9 Regardless, Dr. Patton
was not one of Plaintiff’s treating physicians. The record indicates that Dr. Patton treated Plaintiff
only once, in the emergency room (Tr. 501–09), and a treating physician is defined as someone
who “has or [] had an ongoing treatment and physician-patient relationship with the individual.”
Hilsdorf v. Comm’r of Soc. Sec., 724 F. Supp. 2d 330, 344 (E.D.N.Y. 2010).

Indeed, the record contains no medical opinions from any of Plaintiff’s numerous treating
physicians, including Drs. Nieto, Bieber, Rosen, and Singh.10 Additionally, the record does not
reveal any attempt by the ALJ to obtain medical opinions from those sources, and this alone is a

9 “Medical opinions are statements from acceptable medical sources that reflect judgments
about the nature and severity of [Plaintiff’s] impairment(s), including [their] symptoms, diagnosis
and prognosis, what [they] can still do despite impairment(s), and [their] physical or mental
restrictions.” 20 C.F.R. § 404.1527(a)(1).
10 The ALJ also did not obtain an opinion from MSW Rodriguez, who treated claimant
regularly. While, as an MSW, Rodriguez did not qualify as a “treating source” prior to March 27,
2017, Delgado v. Berryhill, No. 17-CV-54 (JCH), 2018 WL 1316198, at *3 n.2 (D. Conn. Mar.
14, 2018), his opinion could have been helpful, given the dearth of medical opinions from treating
sources.
sufficient basis to remand. See Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999) (remanding due
to ALJ’s failure to obtain “adequate information from [claimant’s] treating physician”); Wilson v.
Colvin, 107 F.Supp.3d 387, 402 (2d Cir. 1982) (remanding where there was an obvious gap in the
record); Oliveras Ex Rel. Gonzalez v. Astrue, No. 07-CV-2841, 2008 WL 2262618, at *6–7

(S.D.N.Y. May 30, 2008) (remanding so the ALJ could make all reasonable efforts to obtain
treating physician’s opinion).
In addition to not satisfying the duty to develop the record, a failure to make reasonable
efforts to obtain these opinions is a de facto violation of the treating physician rule, requiring
remand. Lacava v. Astrue, No. 11–CV–7727 (WHP)(SN), 2012 WL 6621731, at *13 (S.D.N.Y.
Nov. 27, 2012), (“[T]he ‘treating physician rule’ is inextricably linked to the duty to develop the
record. Proper application of the rule ensures that the claimant’s record is comprehensive,
including all relevant treating physician diagnoses and opinions, and requires the ALJ to explain
clearly how these opinions relate to the final determination.”), report and recommendation
adopted, 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012); Ubiles v. Astrue, No. 11–CV–

6340T(MAT), 2012 WL 2572772, at *9 (W.D.N.Y. Jul. 2, 2012) (“Lacking important
information–namely, the function-by-function assessment from Dr. Laroche, the ALJ was unable
to properly apply the treating physician rule and instead gave controlling weight to the consultative
physician’s opinion. This was legal err.”). While an ALJ may reject the opinions of a treating
physician, the ALJ must explain the basis for doing so. Burgess v. Astrue, 537 F.3d 117, 128 (2d
Cir. 2008).
II. The ALJ RFC Finding Is Not Supported by Substantial Evidence
While a failure to develop the record is sufficient to remand, the Court further finds that
the ALJ’s RFC finding is not supported by substantial evidence. An ALJ’s RFC determination
must be supported by substantial evidence. Talavera, 697 F.3d at 151. “Substantial evidence is
more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Selian, 708 F.3d at 417 (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971) (internal quotation marks and brackets omitted)). Medical records alone
cannot provide substantial evidence for an RFC determination; an “ALJ’s RFC determination must

be supported by a medical opinion in the record at that time.” Pearson v. Comm’r of Soc. Sec.,
No. 20-CV-3030 (AMD), 2021 WL 3373132, at *4 (E.D.N.Y. Aug. 3, 2021).
In determining whether the Commissioner’s findings were based on substantial evidence,
the Court must ascertain that the agency considered all evidence in reaching its findings. 20 C.F.R.
§ 404.1520(3). Moreover, the Court “is required to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be drawn.” Selian,
708 F.3d at 417 (citation omitted). However, “it is up to the agency, and not this court, to weigh
the conflicting evidence in the record.” Clark, 143 F.3d at 118. In any case, if there is substantial
evidence in the record to support the Commissioner’s findings as to any fact, they are conclusive
and must be upheld. 42 U.S.C. § 405(g); see also Cichocki, 729 F.3d at 175–76.

Here, the ALJ concluded that its RFC determination was “supported by the evidence as a
whole.” (Tr. 166.) In regard to Plaintiff’s mental impairments, the ALJ considered the GAF score
provided by LCSW Bozeman and the opinion of Dr. Silver. (Tr. 135–48, 589–610.) As discussed
above, the GAF score provided by LCSW Bozeman did not qualify as a medical opinion because,
under the regulation applicable at the time, an LCSW did not qualify as an “acceptable medical
source.” Mitchell, 2015 WL 5306208, at *12. Furthermore, that GAF score indicated a lower
RFC than that reached by the ALJ. In addition, Dr. Silver could not provide substantial evidence
for the ALJ’s RFC, because Dr. Silver did not personally examine Plaintiff. Avila v. Comm’r of
Soc. Sec. Admin., 20-CV-1360 (ER) (DF), 2021 WL 3774317, at *20 (S.D.N.Y. Aug. 9, 2021)
(“Even where a non-examining opinion is properly afforded some weight, it, alone, cannot be
considered substantial evidence.”), report and recommendation adopted, 2021 WL 3774188
(S.D.N.Y. Aug. 25, 2021); Roman v. Astrue, No. 10-CV-3085 (SLT), 2012 WL 4566128, at *16
(E.D.N.Y. Sept. 28, 2012) (“The medical opinion of a non-examining medical expert does not

constitute substantial evidence and may not be accorded significant weight.”); Green–Younger v.
Barnhart, 335 F.3d 99, 107–08 (2d Cir. 2003) (“Similarly, the reports of two SSA consulting
physicians, who did not examine [plaintiff], are also not substantial evidence.”).
In regard to Plaintiff’s physical impairments, the ALJ considered the recommendation of
Dr. Patton, and the opinions of NP Walcott and non-examining experts Drs. Solberg and Machado.
(Tr. 165–66.) As discussed, Dr. Patton’s recommendation does not qualify as a medical opinion
under C.F.R. § 404.1527(a)(1), and, in any case, would not support the RFC given it suggested
that Plaintiff should take time-off work given her lower back pain. (Tr. 509.) NP Walcott was not
an “acceptable medical source,” her opinion was given limited weight by the ALJ, and her finding
that Plaintiff could only sit for two hours and stand for one hour in an 8-hour workday and would

have approximately 15% off-task time did not support the ALJ’s RFC. (Id.)
Like Dr. Silver’s opinion, the opinions of Drs. Soberg and Machado could not provide
substantial evidence for the ALJ’s RFC determination as a matter of law because neither doctor
personally examined Plaintiff. Avila, 2021 WL 3774317, at *20; Roman, 2012 WL 4566128, at
*16; Green–Younger, 335 F.3d at 107–08 (2d Cir. 2003). In addition, the opinions of Drs. Solberg
and Machado (and all of the other opinions of record, for that matter) cannot provide substantial
evidence for the ALJ’s RFC as a matter of law, because all of the opinions on record—with the
exception of NP Walcott’s—were stale at the time the ALJ rendered her opinion.
Courts will find an opinion stale if it is given prior to a deterioration in Plaintiff’s condition.
Biro v. Comm’r of Soc. Sec., 335 F. Supp. 3d 464, 470 (W.D.N.Y. 2018); see also Jones v. Comm’r
of Soc. Sec., No. 10-CV-5831 (RJD), 2012 WL 3637450, at *3 (E.D.N.Y. Aug. 22, 2012). Drs.
Solberg, Machado, Silver, and Patton, as well as the GAF scores cited by the ALJ, were provided

on or prior to July 5, 2017. (Tr. 109–118 (Dr. Solberg provided opinion on April 18, 2017), 121–
134 (Dr. Machado provided opinion July 5, 2017), 135–148 (Dr. Silver provided opinion on June
28, 2017), 499–532 (Dr. Patton provided opinion on January 5, 2017), 589–610 (GAF scores
provided in May/June 2017).) All of these opinions pre-dated the April 2019 ALJ hearing by
nearly two years. (Tr. 59.) During that period, Plaintiff had the spinal cord stimulator removed in
November 2017, which was responsible for at least some pain reduction when all three non-
examining experts rendered their opinions; had a lumbar laminectomy procedure in October 2018;
and began frequent and consistent mental health treatment. (Tr. 164, 741–72.) Aside from NP
Walcott, the opinions on record did not account for nearly two years of time when the medical
records suggest a possible decline in Plaintiff’s ability to function, and it was error for the ALJ not

to consider or account for that. Chambers v. Comm’r of Soc. Sec., No. 19-CV-2145 (RWL), 2020
WL 5628052, at *12 (S.D.N.Y. Sept. 21, 2020) (collecting cases) (citing, inter alia, Camille v.
Colvin, 104 F. Supp.3d 329, 343-44 (W.D.N.Y. 2015) (“[M]edical source opinions that are
‘conclusory, stale, and based on an incomplete medical record’ may not be substantial evidence to
support an ALJ finding.”), aff’d, 652 Fed. App’x 25 (2d Cir. 2016)).
In sum, because the opinions of NP Walcott and the GAF scores did not support the ALJ’s
RFC, and because the opinions of Drs. Silver, Solberg, and Machado cannot be considered
substantial evidence for the ALJ’s RFC, there was not substantial evidence to support the ALJ’s
RFC determination. Pearson, 2021 WL 3373132, at *4 (“[A]n ALJ’s RFC determination must be
supported by a medical opinion in the record at that time.”); Avila, 2021 WL 3774317, at *20
(“Even where a non-examining opinion is properly afforded some weight, it, alone, cannot be
considered substantial evidence.”); Camille v. Colvin, 104 F. Supp.3d 329, 343-44 (W.D.N.Y.
2015), aff’d, 652 Fed. App’x 25 (2d Cir. 2016) (“[M]edical source opinions that are conclusory,

stale, and based on an incomplete medical record may not be substantial evidence to support an
ALJ finding.” (internal quotations marks omitted)).
III. The ALJ’s Insufficient Credibility Determination and Explanations
In addition to inadequately developing the record and reaching an RFC unsupported by
substantial evidence, the Court observes that, upon remand, the ALJ should further explain her
credibility determinations, including her reliance on evidence of daily functioning and lack of
psychiatric hospitalization. While the ALJ and Commissioner can consider a claimant’s daily
activities in assessing the intensity and persistence of a claimant’s symptoms, 20 C.F.R.
§ 404.1529(c)(3)(i), “a claimant need not be an invalid to be found disabled,” Balsamo v. Chater,
142 F.3d 75, 81 (2d Cir. 1998).
Here, the ALJ notes several activities Plaintiff can allegedly perform, including preparing

simple meals, leaving her residence without assistance, operating a motor vehicle, performing
chores such as shopping, and browsing the internet. (Tr. 165.) For those findings, the ALJ cites
Plaintiff “Function Report,” which was dated June 14, 2017. (Tr. 373.) Insofar as the ALJ asked
Plaintiff about these activities during the hearing, Plaintiff indicated that her ability to perform
these activities was severely limited or nonexistent. For example, Plaintiff said that she could not
cook. (Tr. 79.) Plaintiff stated that she had not driven herself in two years or taken public transit
in five years. (Tr. 64.) She stated that she did not go on the computer and did not use social media.
(Tr. 79.) The ALJ’s failure to further examine Plaintiff’s difficulty performing these tasks calls
the ALJ’s credibility assessment into question. Hankerson v. Harris, 636 F.2d 893, 895–96 (2d
Cir.1980) (“[I]t was particularly important that the ALJ explore[] these symptoms with plaintiff so
that the ALJ could effectively exercise his discretion to evaluate the credibility of the claimant to
arrive at an independent judgment . . . regarding the true extent of the pain alleged.” (internal
quotation marks, brackets, and ellipsis omitted)). Notably, between Plaintiff’s “Function Report,”

and her testimony at the hearing before the ALJ, Plaintiff’s condition deteriorated in all the ways
that rendered most of the medical opinions of record stale, as discussed above.
In addition to Plaintiff’s daily functions, the ALJ noted that Plaintiff “has no history of any
psychiatric hospitalization and treatment records are not extensive.” (Tr. 165.) Social Security
Rulings state that “the frequency or extent of the treatment sought by an individual is not
comparable with the degree of the individual’s subjective complaints.” SSR 16-3p, 2017 WL
5180304 at *9. This Ruling goes on to say “[w]e will not find an individual’s symptoms
inconsistent with the evidence in the record on this basis without considering possible reasons he
or she may not comply with treatment or seek treatment consistent with the degree of his or her
complaints.” Id. Here, the ALJ did not perform this two-step analysis and instead merely noted

Plaintiff’s purportedly non-extensive mental health treatment. (Tr. 165.) The ALJ failed to
consider any possible effects that Plaintiff’s move to New York had on her seeking further mental
health treatment. For example, when the ALJ inquired into the medication prescribed in May
2017, Plaintiff noted that she only took the medication for about three months and then moved to
New York. (Tr. 77.)
Thus, on remand, the ALJ should “include a specific credibility determination, explain how
[she] balanced the various factors, [including Plaintiff’s daily activities], and identify any
inconsistencies between the plaintiff’s testimony and the rest of the record.”11 Hodge, 2020 WL

11 The factors to be considered in assessing a claimant’s credibility are:
7262846, at *4; see also Calo v. Comm’r of Soc. Sec., No. 20-CV-3559 (AMD), 2021 WL
3617478, at *4–5 (E.D.N.Y. Aug. 16, 2021); Woodcock v. Comm’r of Soc. Sec., 287 F. Supp. 3d
175, 176 (E.D.N.Y. 2017); Kane v. Astrue, 942 F. Supp. 2d 301, 314 (E.D.N.Y. 2013).
CONCLUSION
For the reasons explained above, the Court grants Plaintiff’s motion for judgment on the

pleadings and denies the Commissioner’s cross-motion. The Commissioner’s decision is
remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration consistent with
this Memorandum & Order.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: February 15, 2022
Brooklyn, New York

(1) the claimant’s daily activities, (2) the duration, location, frequency and intensity
of the claimant’s pain, (3) precipitating and aggravating factors, (4) the type,
dosage, effectiveness, and side effects of any medications that the claimant takes,
(5) any treatment, other than medication, that the claimant has received, (6) any
other measures that the claimant employs to relieve the pain, and (7) other factors
concerning the claimant’s functional limitations and restrictions as a result of the
pain.
Calo v. Comm’r of Soc. Sec., No. 20-CV-3559 (AMD), 2021 WL 3617478, at *4 (E.D.N.Y.
Aug. 16, 2021) (citing 20 C.F.R. § 404.1529(c)(3)(i)-(vii)).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307488. Public record. Not legal advice.