Dimola v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LISA DIMOLA,

MEMORANDUM AND ORDER

Plaintiff, 20-cv-3808 (KAM)

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Lisa Dimola (“Plaintiff”) appeals the final

decision of defendant, the Commissioner of Social Security (the

“Commissioner” or “Defendant”), finding her not eligible for

Supplemental Security Income (“SSI”) under Title XVI of the Social

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

disabled within the meaning of the Act. Presently before the court

are Plaintiff’s motion for judgment on the pleadings (ECF No. 13-

1, Memorandum of Law in Support of Plaintiff’s Motion for Judgment,

(“Pl. Mem.”)) and Defendant’s cross-motion for judgment on the

pleadings (ECF No. 15-1, Memorandum of Law in Support of the

Defendant’s Cross-Motion, (“Def. Mem.”)). 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 has reviewed and incorporates by

reference in its entirety. (See generally ECF No. 16, 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

briefly recounts the facts relevant to the instant motions.

Plaintiff was born in 1971, and formerly worked as an

office manager and part-time office worker. (Joint Stip. at 1.)

On April 5, 2016, Plaintiff applied for SSI benefits under Title

XVI of the Act. (ECF No. 17, Administrative Record (“Tr.”) at 85

(showing effective filing date), 181-89.) Plaintiff alleged that

the onset date of her disability was January 1, 2010, due to post-

herpetic neuralgia and thyroid isthmus. (Tr. 181, 201.) The

Social Security Administration (“SSA”) initially denied

Plaintiff’s application on May 26, 2016, finding Plaintiff’s

conditions of postherpetic neuralgia and thyroid isthmus were not

severe enough to keep her from working. (Tr. at 86.) Plaintiff

requested reconsideration of her application on August 1, 2016,

and it was again denied on February 2, 2017. (Tr. at 102-103,

107). Plaintiff filed a written request for a hearing on April

10, 2017, and on February 22, 2019, a hearing before an ALJ was

held. (Tr. at 15.) On April 15, 2019, the ALJ denied Plaintiff’s

claims for SSI benefits, finding that she was not disabled. (Tr.

at 22.) The ALJ determined that Plaintiff had the residual

functional capacity (“RFC”) to perform sedentary work as defined

in 20 CFR § 416.967(a)1 except she could only occasionally use her

hands for lifting, carrying, gross manipulation, and fine

manipulation. (Tr. at 18.)

Plaintiff appealed the ALJ’s decision to the Appeals

Council, and the Appeals Council denied Plaintiff’s request for

review on June 17, 2020, making the ALJ’s decision the final

decision of the Commissioner. (Tr. at 1.) This appeal followed.

(See generally, Pl. Mem.)

Standard of Review

A claimant must be “disabled” within the meaning of the

Act to receive benefits. See 42 U.S.C. §§ 423(a), (d). A claimant

qualifies as disabled 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.” Id. §

423(d)(1)(A); Shaw v. Chater, 221 F.3d 126, 131–32 (2d Cir. 2000).

1

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 C.F.R §

416.967(a).

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 regulations promulgated by the Commissioner set

forth a five-step sequential evaluation process for determining

whether a claimant meets the Act’s definition of disabled. See 20

C.F.R. § 404.1520. The Commissioner’s process is essentially as

follows:

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

is not working, (2) that 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 v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008) (quoting Green-

Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003)); accord 20

C.F.R. § 404.1520(a)(4). During this five-step process, the

Commissioner must consider whether “the combined effect of all of

[a claimant’s] impairments,” including those that are not severe,

would be of sufficient severity to establish eligibility for Social

Security benefits. 20 C.F.R. § 404.1523(c).

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

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

step framework established in the SSA regulations.” Burgess, 537

F.3d at 128 (internal quotation marks and citations omitted).

“However, because a hearing on disability benefits is a

nonadversarial proceeding, the ALJ generally has an affirmative

obligation to develop the administrative record.” Id. (internal

quotation marks and alteration, and citations omitted). “The

burden falls upon the Commissioner at the fifth step of the

disability evaluation process to prove that the claimant, if unable

to perform [his] past relevant work [and considering his residual

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

to engage in gainful employment within the national economy.”

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

“The Commissioner must consider the following in

determining a claimant’s entitlement to benefits: ‘(1) the

objective medical facts [and clinical findings]; (2) diagnoses or

medical opinions based on such facts; (3) subjective evidence of

pain or disability . . .; and (4) the claimant’s educational

background, age, and work experience.’” Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel, 174

F.3d 59, 62 (2d Cir. 1999)) (alterations in original).

Unsuccessful claimants for disability benefits may bring

an action in federal court seeking judicial review of the

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

1383(c)(3). The reviewing court does not have the authority to

conduct a de novo review and may not substitute its own judgment

for that of the ALJ, even when it might have justifiably reached

a different result. Cage v. Comm’r of Soc. Sec., 692 F.3d 118,

122 (2d Cir. 2012). Rather, “[a] district court may set aside the

Commissioner’s determination that a claimant is not disabled only

if the factual findings are not supported by substantial evidence

or if the decision is based on legal error.” Burgess, 537 F.3d at

127 (internal quotation marks omitted) (quoting Shaw, 221 F.3d at

131). “The substantial evidence standard means once an ALJ finds

facts, [the court] can reject those facts ‘only if a reasonable

factfinder would have to conclude otherwise.’” Brault v. Soc.

Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (citations

omitted). 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) (second alteration in original) (internal

quotation marks omitted) (quoting Cruz v. Sullivan, 912 F.2d 8, 11

(2d Cir. 1990)).

Therefore, even though the court will afford the ALJ’s

determination substantial deference, a remand for further findings

may be appropriate where the ALJ does not fulfill his or her

affirmative obligation to develop the record. See Butts v.

Barnhart, 388 F.3d 377, 386 (2d Cir. 2004) (“[I]n cases where the

ALJ fail[s] to develop the record sufficiently to make appropriate

disability determinations, a remand for further findings that

would so plainly help to assure the proper disposition of the claim

is particularly appropriate.” (internal quotation marks and

citation omitted)); see also Echevarria v. Sec’y of Health & Human

Servs., 685 F.2d 751, 755-57 (2d Cir. 1982) (noting that, in

deciding whether substantial evidence supports the Commissioner’s

findings, courts must first ensure that claimant has a full, fair,

and adequate hearing and that all relevant facts are developed).

Discussion

I. The ALJ’s Decision

The ALJ analyzed plaintiff’s application using the five-

step sequential evaluation process, as mandated by the Act’s

implementing regulations. At step one, the ALJ determined that

Plaintiff had not engaged in substantial gainful activity since

filing her April 5, 2016 Supplemental Security Income application

(“SSI”). (Tr. at 17.) At step two, the ALJ found that Plaintiff

had the severe physical impairments of polyneuropathy, neuralgia,

myelopathy, inflammatory polyarthritis, cervical and lumbar spine

degenerative disc disease, lower extremity lymphedema, bilateral

carpal tunnel syndrome, hypothyroidism, and obesity. (Tr. at 17.)

The ALJ did not find Plaintiff’s medically determinable mental

impairment disorder to be severe. (Tr. at 17.) Upon considering

the four broad areas of mental functioning set out in disability

regulations for evaluating mental disorders and in the Listing of

Impairments (20 CFR, part 404, subpart P, appendix 1), the ALJ

determined that Plaintiff’s mental impairment disorder did not

cause more than minimal limitation in her ability to perform basic

mental work activities. (Tr. at 17.)

At step three, the ALJ found that Plaintiff does not

have an impairment or combination of impairments that meets or

medically equals the severity of one of the listed impairments in

20 CFR Part 404, Subpart P, Appendix 1. (Tr. at 18.)

In considering Plaintiff’s symptoms to determine her

RFC, the ALJ followed a two-step process in which he first

determined whether there is an underlying medically detrimental

physical or mental impairment that could reasonably be expected to

produce Plaintiff’s pain or other symptoms. (Tr. at 20.)

Thereafter, the ALJ evaluated the intensity, persistence, and

limiting effects of Plaintiff’s symptoms to determine the extent

to which they limit Plaintiff’s work-related activities. (Tr. at

19-20.) The ALJ concluded Plaintiff retained the RFC to perform

sedentary work except that she could only occasionally use her

hands for lifting, carrying, gross manipulation, and fine

manipulation. (Tr. at 18.) The ALJ found that Plaintiff’s

medically determinable impairments could reasonably be expected to

cause the alleged symptoms, but found the Plaintiff’s statements

concerning the intensity, persistence, and limiting effects of

these symptoms were not entirely consistent with the medical

evidence and other evidence in this record. (Tr. at 20.)

At step four, the ALJ found that Plaintiff had no past

relevant work. (Tr. at 21.) At step five, the ALJ considered

vocational expert testimony and concluded that Ms. Dimola could

perform jobs in the local and national economy, including roles

such as a surveillance systems monitor, call-out operator, and

election clerk. (Tr at. 21, see Tr. at 57.) Accordingly, the

ALJ found that plaintiff was not “disabled” and not entitled to

disability benefits under the Act. (Tr. at 22.)

I. The ALJ’s RFC Determination Is Not Supported by Substantial

Evidence

The court finds that the ALJ’s RFC determination is not

supported by substantial evidence. “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) (internal

quotation marks omitted) (citing Richardson v. Perales, 420 U.S.

389, 401 (1971)). 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). Medical records alone cannot

provide substantial evidence for an RFC determination; rather, 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)

(emphasis added). Here, the ALJ only evaluated medical records

and did not seek or consider medical opinions or other medical

experts in making his RFC determination.

“Though the ALJ is not required to seek additional

information when there is a complete medical history, gaps in the

record can be created when there is a lack of opinion evidence,

and “it is considered ‘reversible error for an ALJ not to order a

consultative examination when such an evaluation is necessary for

him to make an informed decision.’” See Rosa v. Callahan, 168

F.3d 72, 79 n.5 (2d Cir. 1999) (internal quotation marks and

citation omitted); see also Williams v. Comm’r of Soc. Sec. 366 F.

Supp. 3d 411, 418 (W.D.N.Y. 2019) (quoting Falcon v. Apfel, 88

F.Supp.2d 87, 91 (W.D.N.Y. 2000). As a general rule, “where the

transcript contains only diagnostic evidence and no [supporting]

opinion from a medical source about functional limitations..., to

fulfill the responsibility to develop a complete record the ALJ

must recontact [an acceptable medical] source, order a

consultative examination, or have a medical expert testify at the

hearing.” Skupien v. Colvin, No. 13-cv-403S (WMS), 2014 WL

3533425, at *6 (W.D.N.Y. July 16, 2014) (quoting Deskin v. Comm’r

of Soc. Sec., 605 F. Supp. 2d 908, 912 (N.D. Ohio 2008).

Here, the ALJ found that Plaintiff has the RFC to perform

sedentary work as defined in 20 CFR § 416.967(a) except she can

only occasionally use her hands for lifting, carrying, gross

manipulation, and fine manipulation. (Tr. at 18.) In making this

finding, the ALJ stated that he “considered opinion evidence in

accordance with the requirements of 20 CFR § 416.927”. (Tr. at

18.) The ALJ first noted that though Plaintiff filled out the

medical source statement, but because Plaintiff is not medical

professional, the ALJ ascribed no weight to the medical source

statement in his RFC determination. (Tr. at 20.) Second, the ALJ

noted that “no doctor or other treating physician describes

Plaintiff as disabled or advises she is unable to work in any

capacity”. (Tr. at 21.) In making his RFC determinations, the

ALJ did not obtain and consider medical opinion evidence, medical

source statements, physical consultative examinations, vocational

or other expert testimony at the hearing to indicate Plaintiff’s

RFC. (Tr. at 68, 70.) The record must include more than mere

medical findings. See Dennis v. Colvin, 195 F. Supp 3d 469

(W.D.N.Y. 2016) (internal citation omitted) (remanding because “an

ALJ is not qualified to assess a claimant's RFC on the basis of

bare medical findings, and as a result an ALJ's determination of

RFC without a medical advisor's assessment is not supported by

substantial evidence.”); see also Shaw, 221 F.3d at 134‒35

(“Neither the trial judge nor the ALJ is permitted to substitute

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

physician’s opinion. [They cannot impose] their notion that the

severity of a physical impairment directly correlates with the

intrusiveness of the medical treatment ordered.”)

The ALJ relied only on the medical records from Florida,

including “Dr. Patel, Dr. Lyon, Coastal Neuro, Dr. Tucker, and

Volusia Hand Surgery.” (Tr. at 32.) But the ALJ did not obtain

records from two outstanding sources identified in the transcript

from Northwell Health, where Plaintiff began treatment in late

2017, and from the Neuroscience Institute at Great Neck. (Tr. at

32, 34.) The ALJ kept the record open for two weeks to obtain the

two outstanding sources from Northwell Health and Neuroscience

Institute at Great Neck in New York. (Tr. at 34.) The ALJ asked

if any doctor was able to “pin down” Plaintiff’s conditions or

illnesses, however, Plaintiff responded that the doctors did not

know and have said the source of her symptoms are not easily

evaluated by medical professionals. (Tr. at 44-45.) The ALJ asked

which doctor at Northwell Health best knew of Plaintiff’s

condition, and Plaintiff responded Dr. Anthony Geraci, who met

with her once and conducted her cervical MRI. (Tr. at 46.) The

ALJ acknowledged that the case “is very underdeveloped” and that

there was no medical evidence from the year and half Plaintiff

lived in New York. (Tr. at 68.) Plaintiff’s attorney highlighted

to the ALJ that if anything in the outstanding records led him to

believe a possible consultative examination would be necessary,

“we welcome that”. (Tr. at 70.) The ALJ responded that he would

“certainly consider that again.” The hearing concluded with no

further indication of missing medical evidence being ordered or

reviewed. (Tr. at 68.)

Here, the ALJ erred in determining Plaintiff’s RFC

without further developing the record to include medical opinions

from treating or other doctors. See Matta v. Astrue, 508 F. App'x

53, 56 (2d Cir. 2013) (finding that an ALJ is tasked with

“weigh[ing] all of the evidence available to make an RFC finding

that [is] consistent with the record as a whole.”); see also Ortiz

v. Colvin, 298 F.Supp.3d 581, 586 (W.D.N.Y. 2018) (quotation

omitted) (holding that ALJs were not medical professionals and

thus “not qualified to assess a claimant's RFC on the basis of

bare medical findings.”) Plaintiff’s record consists mostly of

test results, imaging and laboratory reports, and brief notations

regarding her symptoms and diagnosis, and are devoid of any medical

opinion evidence regarding her physical impairments and RFC. See

e.g., Diberardino v. Comm’r of Soc. Sec., No. 17-cv-2868 (PKC),

2018 WL 3404141, at *3 (E.D.N.Y. July 12, 2018) (finding that the

ALJ failed to further develop the medical record which “consisted

mostly of test results and laboratory reports, with brief notations

and comprehensive reports of Plaintiff’s status” and did not

contain any opinion from Plaintiff’s treating physicians)

(internal quotations and citations omitted). Although the ALJ

acknowledged that “the case is very underdeveloped”, (Tr. at 67),

and has a “complete lapse of evidence for over a year and a half”,

(Tr. at 71), the ALJ “did not endeavor to obtain opinions from any

of Plaintiff’s treating physicians about Plaintiff’s claimed

disabilities”. See Diberardino, 2018 WL 3404141, at *3.

The ALJ also erred in relying on the absence of treating

source opinions that describe Plaintiff as disabled or advise that

she is unable to work in any capacity to reach his conclusion of

her RFC. (Tr. at 21.) Courts in this Circuit have held that “‘an

ALJ may not rely, as fact-finders in adversarial proceedings

customarily do, on the absence of probative evidence supporting

the opinions of a claimant's expert, without making an affirmative

effort to fill any gaps in the record before him.’” Sanchez v.

Barnhart, 329 F. Supp.2d 445, 450 (S.D.N.Y. 2004) (quoting Thomas

v. Barnhart, No. 01-cv-518 (GEL), 2002 WL 31433606, at *4 (S.D.N.Y.

Oct. 30, 2002) (emphasis in original)); Ubiles v. Astrue, No. 11-

cv-6340 (MAT), 2012 WL 2572772, at *10 (W.D.N.Y. July 2, 2012)

(“The ALJ referenced the consultative examinations with those

specialists and apparently penalized Plaintiff for their absence,

stating that ‘there are no consultative reports in the exhibit

file.’ This ... cannot be a harmless error because the ALJ relied

on perceived gaps in the medical evidence to find Plaintiff not

disabled...The ALJ also relied on these gaps in the record to

discredit Plaintiff's subjective complaints of pain and physical

limitations...”) (internal citations omitted).

Defendant contends the ALJ in this case was not required

to take any further action to develop the record and the evidence

was sufficient to render a decision because “[n]otably, Plaintiff

was represented by an attorney before the ALJ, and Plaintiff’s

attorney confirmed that the record from Plaintiff’s treating

providers was complete.” (Def. Mem. at 5, citing Tr. at 32-34.)

Plaintiff, however, is not solely responsible for developing the

record. It is well-established that even if a plaintiff is

represented, an ALJ “has an affirmative obligation to develop the

administrative record.” See Perez v. Chater, 77 F.3d 41, 47 (2d

Cir. 1996); see also Calero v. Colvin, No. 16-cv-6582 (PAE), 2017

WL 4311034, at *9 (S.D.N.Y. Sept. 26, 2017) (holding that an ALJ

has an independent duty to develop the record). Here, the lack of

opinion or other evidence regarding Plaintiff’s RFC creates an

obvious gap in the record, and “[i]t is considered reversible error

for an ALJ not to order a consultative examination when such an

evaluation is necessary for him to make an informed decision.”

(quotation omitted). Falcon, 88 F.Supp.2d at 91. The ALJ was

“required to exercise his independent duty to develop the record

and, at a minimum, secure a consulting physician to examine

Plaintiff and render an opinion as to her functional limitations”.

Williams, 366 F. Supp. 3d at 415–18.

In sum, the ALJ concluded that Plaintiff had multiple

severe impairments, including polyneuropathy, neuralgia,

myelopathy, inflammatory polyarthritis, cervical and lumbar spine

degenerative disc disease, lower extremity lymphedema, bilateral

carpal tunnel syndrome, hypothyroidism, and obesity. (Tr. at 17.)

Despite these impairments, the ALJ assessed Plaintiff’s RFC

without the benefit of any medical opinion evidence as to

Plaintiff's functional limitations. This was an error. See

Williams, 366 F. Supp. 3d at 418 (finding that the ALJ erred in

assessing an RFC of Plaintiff who had multiple severe impairments

without the benefit of any opinion evidence as to Plaintiff’s

functional limitations); see also 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.”). Furthermore, the ALJ’s

failure to obtain complete treating physicians’ records, reports,

consultative, and medical opinions compels this court’s conclusion

that the ALJ’s RFC finding is not supported by substantial

evidence. See, e.g., Nusraty v. Colvin, 15-cv-2018 (MKB), 2016 WL

5477588, at *13 (E.D.N.Y. Sept. 29, 2016) (finding that the ALJ

had an “affirmative duty” to develop the record and “should have

followed up with [the treating physicians] to request supporting

documentation or to obtain additional explanations for [their]

findings”); Lamorey v. Barnhart, 158 Fed. App'x 361, 362 (2d Cir.

2006) (where ALJ fails to adequately develop the record by

requesting treating physician's notes, remand is usually

appropriate).

Accordingly, the ALJ’s failure to develop the record to

obtain substantial evidence to support the ALJ’s RFC determination

requires remand. On remand, the ALJ must further develop the

record by obtaining medical opinion evidence addressing

Plaintiff's functional limitations and consider securing a

consulting physician to examine Plaintiff.

III. The ALJ’s Insufficient Credibility Determination and

Explanation

The court also finds that the ALJ did not sufficiently

evaluate Plaintiff’s testimony of pain and other symptoms, erring

in his credibility determination of Plaintiff. 2 See Cabassa v.

Astrue, No. 11-cv-1449 (KAM), 2012 WL 2202951, at *13 (E.D.N.Y.

June 13, 2012) (finding that the ALJ must follow a two-step process

to evaluate a claimant’s assertions of pain and other symptoms.)

Remand is appropriate when an ALJ “fails [to] sufficiently explain

a finding that the claimant’s testimony was not entirely credible.”

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-

2

Defendant correctly notes that the Commissioner eliminated the term

"credibility" when evaluating symptoms in disability claims, see SSR 16-3p,

prior to Plaintiff’s application for Disability Insurance Benefits. (Def.

Mem. at 6.) SSR 16-3p, which became effective March 28, 2016, supersedes SSR

96-7p, and applies here. This court will address whether the ALJ properly

evaluated and explained his credibility determinations regarding the

Plaintiff’s subjective statements as related to their consistency with the

rest of the record. See Figuero v. Comm'r of Soc. Sec., No. 20-cv-2700

(KAM), 2021 WL 4295313, at *12 (E.D.N.Y. Sept. 21, 2021) (applying SSR 16-3p,

the court addressed the issue of whether the ALJ failed to adequately assess

the credibility of Plaintiff's statements); see also Esptein v. Comm’r of

Soc. Sec., No. 19-cv-3624 (PKC), 2020 WL 5708716, at *1 (E.D.N.Y. Sept. 24,

2020) (the court applied SSR 16-3p and also used language of credibility

determination in reference to consistency with the record).

cv-6858 (GEL), 2006 WL 3714649, at *6 (S.D.N.Y. Dec. 12, 2006)).

“At the first step, the ALJ must decide whether the claimant

suffers from a medically determinable impairment that could

reasonably be expected to produce the symptoms alleged.” Genier

v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citing 20 C.F.R. §

404.1529(b)). During the first step, an ALJ should not consider

whether the severity of an individual’s alleged symptoms is

supported by objective medical evidence. S.S.R. 16-3P, 2016 WL

1119029, at *3. “If the claimant does suffer from such an

impairment, at the second step, the ALJ must consider ‘the extent

to which the claimant's symptoms can reasonably be accepted as

consistent with the objective medical evidence and other evidence’

of record.” Genier, 606 F.3d at 49 (alteration omitted) (quoting

20 C.F.R. § 404.1529(a)).

Social Security Ruling (“SSR”) 16-3p establishes that at

step two, the ALJ must evaluate at “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 v. Astrue, 667 F.Supp.2d

262, 277–78 (citing Lugo v. Apfel, 20 F.Supp.2d 662, 663 (S.D.N.Y.

Sept. 28, 1998)). A review of the entire record includes objective

medical evidence, a claimant’s statements about the intensity,

persistence, and limiting effects of symptoms, statements and

information provided by medical sources, and any other relevant

evidence in the claimant’s record. SSR 16-3P, 2016 WL 1119029, at

*4-6.

Plaintiff contends that the ALJ failed to conduct the

required analysis before rejecting her testimony regarding the

limiting effects of her impairments. (Pl. Mem. at 15.) Here,

Plaintiff testified that she had shingles twice, which caused

neuropathy. (Tr. at 20.) She has significant pain in both hands,

legs, and feet, has tremors in her hands, has trouble holding

things, and cannot lift anything heavy. (Tr. at 20.) She

testified that her hands experience spasms, and she drops things,

and that she cannot write in the morning. (Tr. at 20.) She

further testified that she is always weak and dizzy, cannot

concentrate on anything, has full body spasms, falls a lot, and

cannot sleep at night. (Tr. at 20.) She described being able to

stand for approximately five to seven minutes before she has pain

and a burning sensation in her legs and is able to walk

approximately one block at a time. (Tr. at 41.)

The ALJ applied the two-step process for evaluating

Plaintiff’s symptoms. First, he acknowledged that Plaintiff’s

impairments could “reasonably be expected to cause the alleged

symptoms.” (Tr. at 20.) In the second step, however, he concluded

that her “statements concerning the intensity, persistence, and

limiting effects are not entirely consistent with the medical

evidence and other evidence in this record.” (Tr. at 20.) The

ALJ referenced Plaintiff’s reported activities of daily living at

the hearing as inconsistent with Plaintiff’s symptoms, noting that

“she is able to care for her personal needs with assistance”. (Tr.

at 20.) He also mentioned that her “work history is erratic,”

“her subjective allegations are in excess of what would be

reasonably expected from the objective medical evidence,” and that

she “moved to Florida in 2016, then recently came back”. (Tr. at

20.) In finding that the Plaintiff’s testimony was inconsistent

with the medical record, ALJ relied on medical reports that

referred to Plaintiff’s symptoms and the objective severity of the

impairments. (Tr. at 20.)

This court has reviewed the ALJ’s decision and finds

that he did not adequately consider Plaintiff’s subjective

statements. The ALJ did not evaluate the consistency of

Plaintiff’s symptoms and the credibility according to the seven

factors mentioned above as required by the regulations and SSR 16-

3p. 20 C.F.R. 404.1529(c)(3); see e.g., Grosse v. Comm'r of Soc.

Sec., No. 08–cv–4137 (NGG), 2011 WL 128565, at *5 (E.D.N.Y. Jan.

14, 2011) (finding that ALJ “committed legal error” because he

failed to consider any of the credibility determination factors

except the claimant's daily activities). The ALJ only discussed

Plaintiff’s daily activities and did not mention the other

applicable factors listed in SSR 16-3p. (Tr. at 20). “Indeed, it

is well-settled that the performance of basic daily activities

does not necessarily contradict allegations of disability, as

people should not be penalized for enduring the pain of their

disability in order to care for themselves.” Cabibi v. Colvin, 50

F. Supp. 3d 213, 238–39 (E.D.N.Y. 2014) (internal quotation marks

and citations omitted). Furthermore, the ALJ's mention of

Plaintiff’s ability “to care for her personal needs with

assistance,” her “erratic” work history, and the fact that she

“moved to Florida in 2016, then recently came back” does not

constitute evidence of Plaintiff’s ability to perform sedentary

work. (Tr. at 20); see Archambault v. Astrue, No. 09-cv-6363 (RJS)

(MHD), 2010 WL 5829378, at *30 (S.D.N.Y. Dec. 13, 2010)

(“Plaintiff's ability to engage in certain limited daily

activities, [including self-care, childcare duties, a few

household chores, and some pastimes], does not provide evidence of

his ability to perform sedentary work unless he can perform those

daily activities at a level consistent with the demands of

sedentary work.”) (citations omitted)); see also Larsen v. Astrue,

No. 12-cv-00414 (CBA), 2013 WL 3759781, at *3 (E.D.N.Y. July 15,

2013) (“Evidence that the plaintiff occasionally travelled by

plane is also not by itself inconsistent, especially in light of

evidence...indicating that her symptoms worsened after her

trips”.)

Lastly, the ALJ cannot disregard the Plaintiff’s

testimony simply because her pain or symptoms do not exactly align

with the medical evidence. Hudson v. Berryhill, No. 17-cv-463

(MAT), 2018 WL 4550310, at *6 (W.D.N.Y. Sept. 21, 2018) (internal

quotation marks, citation, and brackets omitted) (finding that an

ALJ could not “reject the claimant’s statements about the intensity

and persistence of her pain or other symptoms or about the effect

her symptoms have on her ability to work solely because the

available objective evidence does not substantiate the claimant's

statements.”); see also Correale-Englehart v. Astrue, 687 F. Supp.

2d 396, 435 (S.D.N.Y. 2010) (citation omitted) (“Even if subjective

pain is unaccompanied by positive clinical findings or other

objective medical evidence, it may still serve as the basis for

establishing disability.”) A plaintiff who “alleges a disability

based on the subjective experience of pain need not adduce direct

medical evidence confirming the extent of the pain, but [can

instead cite to] medical signs and laboratory findings which show

that the claimant has a medical impairment which could reasonably

be expected to produce the pain.” Meadors v. Astrue, 370 F. App'x

179, 185 (2d Cir. 2010).

For the foregoing reasons, remand is warranted a for

proper credibility evaluation and explanation of Plaintiff's

statements regarding the intensity, persistence, and limiting

effects of her pain and other symptoms and limitations. See Pavia

v. Comm'r of Soc. Sec., No. 10-cv-818 (GTS) (DEP), 2013 WL 5652497,

at *6 (N.D.N.Y. Oct. 15, 2013) (“Both case law and the social

security regulations prohibit an ALJ from discrediting a

plaintiff's statements solely based upon objective medical

evidence.” (citing Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.

1979) and 20 C.F.R. § 404.1529(c)(2))); Perez v. Barnhart, 234 F.

Supp. 2d 336, 340 (S.D.N.Y. 2002) (quoting Mimms v. Heckler, 750

F.2d 180, 185 (2d Cir. 1984)) (“[T]he subjective element of pain

is an important factor to be considered in determining

disability.”)

On remand, the ALJ “should inquire into the particular

nature of the plaintiff's daily activities and how her allegations

of pain limit these activities before determining her

credibility”. Larsen, 2013 WL 3759781, at *3. On remand, the ALJ

should also carefully weigh each of the factors set forth in 20

C.F.R. § 416.929(c)(3) and indicate exactly how Plaintiff's

subjective symptoms including pain factor into his ultimate RFC

determination.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for

judgment on the pleadings is GRANTED, Defendant’s motion for

judgment on the pleadings in DENIED, and this case is REMANDED for

further proceedings consistent with this Memorandum and Order.

The Clerk of Court is directed to enter judgment remanding this

case, and to close the case.

SO ORDERED.

DATED: May 24, 2022

Brooklyn, New York

_____/s/ Kiyo Matsumoto_____

HON. KIYO A. MATSUMOTO

United States District Judge