# Schmidt v. Saul, Commissioner of Social Security

> District Court, E.D. New York · May 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10308036

## Case

- **Court:** District Court, E.D. New York
- **Decided:** May 16, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10308036

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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

JAMES MATTHEW SCHMIDT,

Plaintiff,
MEMORANDUM AND ORDER
-against-
20-CV-3594(KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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

KIYO A. MATSUMOTO, United States District Judge:
Plaintiff James Schmidt (“plaintiff”) appeals the final
decision of the Commissioner of Social Security (“defendant” or
the “Commissioner”) finding him not disabled within the meaning of
the Social Security Act (the “Act”) and not entitled to disability
insurance benefits under Title II of the Act. Plaintiff and the
Commissioner have cross moved for judgment on the pleadings. For
the reasons herein, plaintiff’s motion is GRANTED, the
Commissioner’s motion is DENIED, and the case is REMANDED for
further proceedings consistent with this Memorandum and Order.
Background
The parties have filed a joint stipulation of relevant
facts, which the court has reviewed and incorporates by reference.
(See generally ECF No. 19-1, Joint Stipulation of Facts (“Stip.”).)

Here, the court briefly recounts the facts relevant to the instant
motions.
Plaintiff was born in 1965 and was a firefighter for the
New York City Fire Department. (Stip. at 1.) He filed an
application for disability insurance benefits on May 31, 2016.
(ECF Nos. 21‒21-1, together, Administrative Transcript (“Tr.”), at
10.) Plaintiff alleged disability beginning on February 23, 2012
due to gastroesophageal reflux disease (“GERD”), Barrett’s
esophagus, chronic sinusitis, sleep apnea, asthma, high blood
pressure, high cholesterol, herniation and bulging discs in the
spine, and right shoulder injury. (Id. at 36‒37, 229.)

The ALJ determined that plaintiff had the following
impairments that severely limited his ability to perform basic
work activities: degenerative disc disease of the cervical and
lumbar spines, shoulder disorder, knee disorder, GERD, asthma,
deviated septum with chronic sinusitis, and obstructive sleep
apnea. (Id. at 13.) The ALJ concluded that plaintiff’s coronary
artery disease, hypertension, and hyperlipidemia were non-severe
impairments. (Id.)
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).
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)).

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 found that
plaintiff had not engaged in substantial gainful activity since
February 23, 2012, the alleged onset date. (Tr. at 12.) At step
two, the ALJ determined that plaintiff had the following severe
impairments: degenerative disc disease of the cervical and lumbar
spines, shoulder disorder, knee disorder, GERD, asthma, deviated
septum with chronic sinusitis, and obstructive sleep apnea. (Id.
at 13.) The ALJ concluded that plaintiff’s coronary artery

disease, hypertension, and hyperlipidemia are non-severe
impairments that do not significantly limit his ability to perform
basic work activities. (Id.) The ALJ found that the coronary
heart disease had only required routine, minimal monitoring by
plaintiff’s cardiologist, and hypertension and hyperlipidemia had
been controlled with medications generally and were asymptomatic.
(Id.)
At step three, the ALJ determined that plaintiff’s
impairments, considered singly or in combination, did not meet or
medically equal the severity of the listed impairments in Part

404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525,
and 404.1526). (Tr. at 14.) Specifically, the ALJ found that
plaintiff’s impairments did not meet the criteria of Listings 1.02,
1.04, 3.03, and 8.04. (Id.) First, she determined that
plaintiff’s knee and shoulder injuries did not qualify under
Listing 1.02 because there was no evidence that plaintiff’s knee
injury resulted in an inability to ambulate effectively or that
his shoulder injury prevented him from performing fine and gross
movements effectively. (Id.) Second, the ALJ concluded that
Listing 1.04 was not met because there was no evidence in
plaintiff’s medical record of nerve root compression, spinal
arachnoiditis, or lumbar spinal stenosis resulting in
pseudoclaudication. (Id. at 15.) The ALJ also considered Listing

3.03 and found that Plaintiff’s asthma did not qualify because
there was no evidence of a FEV1 score less than or equal to the
value in Table VI-B for plaintiff’s age, gender, and height without
shoes, and no evidence of exacerbations or complications requiring
three hospitalizations within a 12-month period and at least 30
days apart. (Id.) Finally, the ALJ determined that plaintiff’s
chronic sinusitis did not qualify under Listing 8.04 because there
was no evidence of extensive fungating or ulcerating skin lesions.
(Id.)
At step four, the ALJ concluded that plaintiff was unable
to perform any of his past relevant work as a firefighter. (Id.

at 22.) The ALJ determined that plaintiff had the residual
functional capacity (“RFC”) to perform light work,1 with the
following limitations: no more than occasionally pushing or
pulling; no more than occasionally climbing ramps or stairs; never
climbing ladders, ropes, or scaffolds; no more than occasionally
balancing or stooping; never kneeling, crouching, or crawling; no
more than frequently reaching; no more than occasionally reaching
overhead; no more than frequently handling and fingering; avoiding
concentrated exposure to temperature extremes, wetness, and
humidity; avoiding even moderate exposure to pulmonary irritants
(such as fumes, odors, dust or gases); and avoiding any exposure

to hazardous machinery, unprotected heights, and operational
control of moving machinery. (Id.)

1 Light work “involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the weight
lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work, we
determine that he or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to sit for long
periods of time.” 20 C.F.R. § 404.1567(b).
At step five, the ALJ concluded that there were jobs
that existed in significant numbers in the national economy that
plaintiff could perform despite his restrictions. (Id. at 23–24.)

The vocational expert testified at the January 3, 2019 hearing
before the ALJ that plaintiff could perform the requirements of
representative occupations such as price marker, furniture rental
sales representative, and cashier. (Id.) Accordingly, the ALJ
found that plaintiff was not “disabled” and not entitled to
disability benefits under the Act. (Id. at 28.)
I. The ALJ Did Not Consider Plaintiff’s Non-Severe Impairments
in the RFC Determination
“An ALJ’s failure to account for an impairment in the
RFC analysis is grounds for remand.” Davila v. Comm’r of Soc.
Sec., No. 16-cv-4774(KAM), 2018 WL 5017748, at *5 (E.D.N.Y. Oct.
16, 2018). See Parker-Grose v. Astrue, 462 F. App’x. 16, 18 (2d
Cir. 2012) (“Furthermore, even if this Court concluded that
substantial evidence supports the ALJ’s finding that [plaintiff’s]
mental impairment was nonsevere, it would still be necessary to
remand this case for further consideration because the ALJ failed
to [take into] account [plaintiff’s] mental limitations when
determining her RFC. A RFC determination must account for
limitations imposed by both severe and nonsevere impairments.”);
accord Schmidt v. Colvin, No. 15-cv-2692(MKB), 2016 WL 4435218, at

*13 (E.D.N.Y. Aug. 19, 2016) (“Where an ALJ fails to account for
any functional limitations associated with the [non-severe]
impairments in determining the claimant’s RFC, a court must remand
for further administrative proceedings.”) (alteration in original)

(internal quotation marks and citations omitted).
Although the ALJ’s finding that plaintiff’s coronary
artery disease, hypertension, and hyperlipidemia were not severe
was supported by the record, the ALJ failed to explain how these
non-severe impairments informed her determination of plaintiff’s
RFC. In fact, there is no mention of any of these conditions in
the ALJ’s step four analysis. (Tr. at 15‒22.) The ALJ’s failure
to consider plaintiff’s non-severe impairments in determining his
RFC was legal error and remand is warranted for this reason. On
remand, the ALJ should consider whether additional medical opinion
evidence regarding the functional limitations caused by the non-
severe impairments is warranted.
II. The ALJ’s Insufficient Credibility Determination and
Explanation

The Court also finds that the ALJ, in characterizing
plaintiff’s treatment as “routine and conservative,” did not
consider whether his treatment can be attributed to other reasons
and not be indicative of the severity of his conditions. Indeed,
plaintiff testified during the hearing that he is unwilling to
receive surgery for his degenerative disc disease due to potential
adverse effects and that he was first diagnosed with high blood
pressure after his septoplasty in 2014. (Id. at 1086‒87.)
Furthermore, plaintiff’s medical record indicates that though
epidural steroid injections and physical therapy helped improve
his movement, they did not improve his pain levels. (Id. at 664.)

Social Security Ruling 16-3P states, “We will not find
an individual’s symptoms inconsistent with the evidence in the
record [based on the frequency or extent of the treatment sought
not being comparable to the degree of his subjective complaints or
if he fails to follow the prescribed treatment] without considering
possible reasons he . . . may not comply with treatment or seek
treatment consistent with the degree of his . . . complaints.”
SSR 16-3P, 2017 WL 5180304 (Oct. 25, 2017). Here, the ALJ did not
consider the reasons presented by plaintiff for not pursuing a
more aggressive treatment regime and instead merely noted the
“conservative” treatment. (Tr. at 21.) On remand, the ALJ should

consider the reasons plaintiff may not seek treatment consistent
with the degree of his complaints prior to determining that the
alleged intensity and persistence of his symptoms are inconsistent
with the overall evidence of the record.
III. The ALJ’s RFC Determination Is Not Supported by Substantial
Evidence

Finally, 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 evaluated the opinions of Dr. Gelin, a
consultative examiner, Dr. Gonzalez-Mendez, a non-examining
expert, Dr. Ghavami, plaintiff’s treating cardiologist, and Dr.
Alicandri, plaintiff’s treating internist. (Tr. 19–21.)

The ALJ found Dr. Gelin, Dr. Ghavami, and Dr. Alicandri
to be unpersuasive. (Id.) She gave “little weight” to the opinion
of Dr. Gelin, the consultative examiner, because his opinion that
plaintiff had no limitation was not supported by his examination
report, which “identified a limited and painful range of motion of
the neck, mild-to-moderate pain on lumbar flexion, mild upper

extremity weakness, and decreased grip strength of both hands,”
and inconsistent with the treating records. (Id. at 19.)
The ALJ gave “very little weight” to the opinion of Dr.
Ghavami, plaintiff’s treating cardiologist. (Tr. at 20–21.)
According to the ALJ, Dr. Ghavami opined on conditions outside of
his area of specialty, such as plaintiff’s orthopedic problems and
anxiety, and his assessments as to plaintiff’s functional
limitations, namely, being able to walk only one to two blocks
without rest or severe pain and being off task twenty-five percent
or more of the workday, were mere restatements of plaintiff’s
subjective beliefs. (Id.) Furthermore, the ALJ concluded that
Dr. Ghavami’s opinion was not consistent with the record. (Id.)

The ALJ also gave “very little weight” to the opinion of
Dr. Alicandri, plaintiff’s treating internist, that plaintiff had
the following limitations: sitting less than two hours total and
standing and/or walking less than two hours total in an eight-hour
workday; rarely lifting and/or carrying up to 20 pounds; never
climbing ladders and rarely performing other postural activities;
avoiding nearly all exposure to environmental conditions; and
being off task twenty-five percent or more of the workday and
absent more than four days per month. (Id.) In weighing Dr.
Alicandri’s opinion, the ALJ noted that the extreme functional
limitations identified by Dr. Alicandri are “grossly inconsistent
with the objective evidence of record.” (Id. at 21.)

In contrast, the ALJ gave “significant weight” to the
opinion of a non-examining state medical consultant, Dr. Gonzalez-
Mendez, that a single decisionmaker’s2 assessment that plaintiff
retained the ability to perform a reduced range of light work was
reasonable. (Id. at 19‒20.) In giving significant weight to Dr.
Gonzalez-Mendez’s opinion, the ALJ reasoned that it was “supported
by the record.” (Id.) Notably, Dr. Gaonzalez-Mendez’s singe-page
medical evaluation was based entirely on his review of plaintiff’s
medical record available at the time (which did not include
Exhibits 11F to 22F of the Administrative Transcript) and the
single decisionmaker’s Disability Determination Explanation. (Id.
at 36‒46; 535.) Therefore, though acknowledging the extent and

the length of the treating relationships between plaintiff and
Drs. Ghavami and Alicandri, seven and fourteen years,
respectively, at the time of her decision, the ALJ conformed her
findings exclusively to a non-examining expert.

2 Sigle decision-makers are “non-physician disability examiners who may make
the initial disability determination in most cases without requiring the
signature of a medical consultant.” Rivera v. Comm’r Soc. Sec., 394 F. Supp.
3d 486, 494‒95 (S.D.N.Y. 2019).
Under the “treating physician rule,”3 the medical opinion
of a treating source as to the nature and severity of a claimant’s
impairments is entitled to “controlling weight,” where the opinion

is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record.” Cichocki v. Astrue,
534 F. App’x 71, 74 (2d Cir. 2013) (internal quotation marks
omitted) (quoting 20 C.F.R. § 404.1527(c)(2)).
“An ALJ who refuses to accord controlling weight to the
medical opinion of a treating physician must consider various
factors to determine how much weight to give to the opinion,
including: (i) the frequency of examination and the length, nature
and extent of the treatment relationship; (ii) the evidence in
support of the treating physician’s opinion; (iii) the consistency
of the opinion with the record as a whole; (iv) whether the opinion

is from a specialist; and (v) other factors brought to the Social
Security Administration’s attention that tend to support or
contradict the opinion.” Id. (internal quotation marks omitted)
(quoting Halloran, 362 F.3d at 32). “The ALJ must then
‘comprehensively set forth [her] reasons for the weight assigned

3 In 2017, new regulations were issued that changed the standard for evaluating
medical opinion evidence for claims filed on or after March 27, 2017. See 20
C.F.R. § 404.1520c. However, because Plaintiff filed his claim on May 31, 2016,
the previous regulations, including the treating physician rule, still apply.
See Conetta v. Berryhill, 365 F. Supp. 3d 383, 395 n.5 (S.D.N.Y. 2019).
to a treating physician’s opinion.’” Id. (quoting Burgess, 537
F.3d at 129).
“Even where a non-examining opinion is properly

afforded some weight, it, alone, cannot be considered substantial
evidence.” Avila v. Comm’r of Soc. Sec. Admin., No. 20-cv-
1360(ER), 2021 WL 3774317, at *20 (S.D.N.Y. Aug. 9, 2021), report
and recommendation adopted, 2021 WL 3774188 (S.D.N.Y. Aug. 25,
2021). Here, the ALJ conformed her findings exclusively to the
opinion of a non-examining expert who did not have the benefit of
plaintiff’s entire medical record at the time his opinion was
rendered. See Jones v. Comm’r of Soc. Sec., No. 10-cv-5831(RJD),
2012 WL 3637450, at *3 (S.D.N.Y. Aug. 22, 2012) (remanding after
court determined a non-examining physician’s opinion that the ALJ
had relied on was not substantial evidence given the physician had

access to limited treatment records).
In addition to Dr. Gonzalez-Mendez’s opinion, the ALJ
based her RFC determination on what she viewed as Plaintiff’s
“routine and conservative” treatment and his ability to perform
daily activities, such as house chores, driving, and walking his
dog. (Tr. 21.) Though evidence of daily functioning can certainly
inform an RFC determination, it must be supported by an adequate
medical opinion. See Pearson, 2021 WL 3373132, at *4. In
addition, the ALJ’s determination that plaintiff’s treatment was
“routine and conservative” was an impermissible substitution of
her opinion for that of medical experts. See 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. Essentially, the ALJ and trial
court imposed their notion that the severity of a physical
impairment directly correlates with the intrusiveness of the
medical treatment ordered.”) (internal citation omitted).
Furthermore, even if the ALJ is correct in her classification of
Plaintiff’s treatment as “routine and conservative,” such
treatment does not constitute substantial evidence for the RFC.
Kirby v. Saul, No. 20-cv-02270(FB), 2021 WL 4197264, at *3
(E.D.N.Y. Sept. 15, 2021) (“[N]either [plaintiff’s] ability to
perform personal tasks—like showering, getting dressed, and going
to doctor’s appointments—her ‘conservative’ treatment choices, nor
her decision to return to work after a period of disability amounts

to substantial evidence.”).
In sum, none of the treating physicians’ opinions
support the ALJ’s RFC determination, and the opinion of a non-
examining physician who did not have plaintiff’s complete medical
record, plaintiff’s “conservative” treatment, and his daily
functioning do not constitute substantial evidence. Accordingly,
there is no substantial evidence to support the ALJ’s RFC
determination, and remand is necessary. 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.”);
Kirby, 2021 WL 4197264, at *3 (remanding after finding evidence of

conservative treatment and basic daily functioning cannot
constitute substantial evidence).
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 16, 2022
Brooklyn, New York
__________/s/_______________
HON. KIYO A. MATSUMOTO
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308036. Public record. Not legal advice.