The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DEBRA A. IANAZZI,
MEMORANDUM AND ORDER
Plaintiff,
20-CV-04366(KAM)
-against-
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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KIYO A. MATSUMOTO, United States District Judge:
Pursuant to 42 U.S.C. § 405(g), Plaintiff Debra A.
Ianazzi (“Plaintiff”) appeals the final decision of the
Commissioner of Social Security (“Defendant” or the
“Commissioner”) finding Plaintiff not eligible for disability
insurance benefits (“DIB”) under Title II of the Social Security
Act (the “Act”).
Presently before the Court are the parties’ cross
motions for judgment on the pleadings. (See ECF Nos. 13,
Plaintiff’s Notice of Motion for Judgment on the Pleadings; 15,
Defendant’s Cross Motion for Judgment on the Pleadings.) For the
reasons stated below, 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. 17, Joint
Stipulation of Relevant Facts (“Joint Stip.”).)
Plaintiff filed an application for DIB on November 14,
2016, alleging disability beginning on August 6, 2015. (See ECF
No. 18, Administrative Transcript (“Tr.”) at 21.) On May 5, 2017,
the Social Security Administration (“SSA”) denied Plaintiff’s
claim, concluding that the relevant medical evidence “did not show
any conditions of a nature that would prevent [Plaintiff] from
working.” (Id. at 97-101.) On May 16, 2017, Plaintiff filed a
request for a hearing before an administrative law judge, (see id.
at 109-10), which was held before Administrative Law Judge Andrew
S. Weiss (the “ALJ”) on July 3, 2019 in Central Islip, New York.
(See id. at 129‒35.) A medical expert, Elizabeth Atkins, M.D.,
testified at the hearing. (See id. at 21.) A vocational expert,
Yaakov Taitz, Ph.D., also testified. (See id.) In a decision
dated July 16, 2019, the ALJ determined that Plaintiff was not
disabled within the meaning of the Act. (See id. at 21-31.)
Plaintiff requested a review of the ALJ’s decision with the Appeals
Council, and the Appeals Council denied review on August 4, 2020,
rendering the ALJ’s decision the final decision of the
Commissioner. (See id. at 1‒3.)
Plaintiff initiated the instant action on September 17,
2020, (see ECF No. 1, Complaint (“Compl.”)), and the Court issued
a scheduling order on September 28, 2020. (See ECF No. 5,
Scheduling Order.) The entire set of both parties’ motion papers
was filed on October 7, 2021. (See ECF Nos. 14, Plaintiff’s
Memorandum of Law in Support of Plaintiff’s Motion for Judgment on
the Pleadings; 15, Defendant’s Memorandum of Law in Support of
Defendant’s Cross Motion for Judgment on the Pleadings and in
Opposition to Plaintiff’s Motion; 16, Plaintiff’s Reply Memorandum
of Law in Support of Plaintiff’s Motion for Judgment on the
Pleadings.)
LEGAL STANDARD
To receive disability benefits, a claimant must be
“disabled” within the meaning of the Act, and insured for
disability benefits.1 See 42 U.S.C. § 423(a), (d). A claimant
qualifies as disabled when she is unable to “engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.” Id. §
423(d)(1)(A). The impairment must be of “such severity” that the
claimant is unable to do her previous work or engage in any other
1 Plaintiff’s last insured date is December 31, 2020. (See Tr. at 200.)
kind of substantial gainful work which exists in the national
economy. Id. § 423(d)(2)(A). “The Commissioner must consider the
following in determining a claimant’s entitlement to benefits:
‘(1) the objective medical facts [and clinical findings]; (2)
diagnoses or medical opinions based on such facts; (3) subjective
evidence of pain or disability . . . ; and (4) the claimant’s
educational background, age, and work experience.’” Balodis v.
Leavitt, 704 F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown
v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (alterations in
original)).
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 “within
sixty days after the mailing . . . of notice of such decision or
within such further time as the Commissioner of Social Security
may allow.” 42 U.S.C. § 405(g). “A district court may set aside
the Commissioner’s determination that a claimant is not disabled
only if the factual findings are not supported by substantial
evidence or if the decision is based on legal error.” Burgess v.
Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal quotation marks
and citation omitted); see also 42 U.S.C. § 405(g). “Substantial
evidence is more than a mere scintilla,” and must be relevant
evidence that “a reasonable mind might accept as adequate to
support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d
Cir. 2004) (citing Richardson v. Perales, 420 U.S. 389, 401 (1971)
(internal quotation marks omitted)).
If there is substantial evidence in the record to
support the Commissioner’s factual findings, those findings must
be upheld. See 42 U.S.C. § 405(g). Inquiry into legal error
requires the court to ask whether “the claimant has had a full
hearing under the [Commissioner’s] regulations and in accordance
with the beneficent purposes of the [Social Security] Act.” Moran
v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (citation omitted).
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. See Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d
Cir. 2012).
Pursuant to regulations promulgated by the
Commissioner, a five-step sequential evaluation process is used
to determine whether the claimant’s condition meets the Act’s
definition of disability. See 20 C.F.R. § 404.1520. This process
is essentially as follows:
[I]f the Commissioner determines (1) that the claimant
is not working, (2) that he has a “severe impairment,”
(3) that the impairment is not one [listed in Appendix
1 of the regulations] that conclusively requires a
determination of disability, and (4) that the claimant
is not capable of continuing in his prior type of work,
the Commissioner must find him disabled if (5) there is
not another type of work the claimant can do.
Burgess, 537 F.3d at 120 (internal quotation marks and citation
omitted); see also 20 C.F.R. § 404.1520(a)(4).
During this five-step process, the Commissioner must
consider whether the combined effect of all of the claimant’s
impairments, including those that are not severe (as defined by
the regulations), would be of sufficient severity to establish
eligibility for Social Security benefits. 20 C.F.R. §§ 404.1523,
404.1545(a)(2). At steps one through four of the sequential five-
step framework, the claimant bears the burden of proving her
disability. See Burgess, 537 F3.d at 128. At step five, the
burden shifts from the claimant to the Commissioner, requiring
that the Commissioner show that, in light of the claimant’s
residual functional capacity (“RFC”), age, education, and work
experience, the claimant is “able to engage in gainful employment
within the national economy.” Sobolewski v. Apfel, 985 F. Supp.
300, 310 (E.D.N.Y. 1997).
Lastly, federal regulations explicitly authorize a
court, upon reviewing decisions of the Commissioner, to order
further proceedings when appropriate. “The court shall have power
to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g). Remand is warranted
where “there are gaps in the administrative record or the ALJ has
applied an improper legal standard.” Rosa v. Callahan, 168 F.3d
72, 82-83 (2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34,
39 (2d Cir. 1996) (internal quotation marks omitted)). Remand is
particularly appropriate where further findings or explanation
will clarify the rationale for the ALJ’s decision. Pratts, 94
F.3d at 39. If, however, the record before the court provides
“persuasive proof of disability and a remand for further
evidentiary proceedings would serve no purpose,” the court may
reverse and remand solely for the calculation and payment of
benefits. See, e.g., Parker v. Harris, 626 F.2d 225, 235 (2d Cir.
1980); Kane v. Astrue, 942 F. Supp. 2d 301, 314 (E.D.N.Y. 2013).
DISCUSSION
I. The ALJ’s Disability Determination
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
August 6, 2015, the alleged onset date of her disability. (Tr. at
23.) At step two, the ALJ found that Plaintiff suffered from
degenerative disc disease at the lumbar spine, status post fusion,
that severely limited her ability to perform basic work activities.
(Id.)
At step three, the ALJ determined that Plaintiff did not
have an impairment or combination of impairments that met or
medically equaled the severity of any listed impairment under 20
C.F.R. Part 404 Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d),
404.1525, and 404.1526). (Id. at 23.) In so deciding, the ALJ
gave “[s]pecific consideration . . . to the applicable sections of
1.00 Musculoskeletal System of the listed requirements.” (Id. at
24.) In addition, the ALJ noted that no treating, examining, or
non-examining medical source documented findings or rendered an
opinion that Plaintiff’s impairments, individually or in
combination, met or medically equaled the requirements of any
listed impairment. (Id.)
At step four, the ALJ found that Plaintiff had the RFC
to perform less than the full range of light work as defined in 20
C.F.R. § 404.1567(b), with the following limitations: (1) lifting
and/or carrying up to 10 pounds frequently and up to 20 pounds on
occasion; (2) sitting for six hours in an eight-hour workday,
alternating to a standing position for five minutes every hour;
(3) standing and/or walking for six hours in an eight-hour workday,
alternating to a sitting position for five minutes every hour; (4)
never climbing scaffolds or ramps; (5) frequently climbing stairs;
and (6) frequently stooping, kneeling, crouching, and crawling.
(Id.)
The ALJ considered the objective medical evidence,
medical opinion evidence, and Plaintiff’s symptoms and concluded
that, though Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, Plaintiff’s
statements regarding the intensity, persistence, and limiting
effects of these symptoms were not entirely consistent with the
medical evidence and Plaintiff’s own reports of her daily
activities. (Id. at 28-29.) The ALJ also determined that the
record does not contain medically supported opinions from treating
or examining physicians that indicate that Plaintiff was disabled
during the relevant time period. (Id. at 28.)
Having determined Plaintiff’s RFC, the ALJ found, based
on Plaintiff’s age, education, work experience, and RFC, that
Plaintiff was capable of performing her past relevant work as
generally performed in the national economy. (Id. at 29.) The
vocational expert classified Plaintiff’s past relevant work as a
dental receptionist, “a semi-skilled work generally performed with
sedentary exertion,” and testified that Plaintiff’s postural
limitations and need to alternate between sitting and standing
would not preclude her from working as a dental receptionist.
(Id.) Accordingly, the ALJ determined that Plaintiff was not
disabled from August 6, 2015 to the date of the decision. (Id. at
30.)
II. The ALJ’s Assessment of Opinion Evidence
A. The Treating Physician Rule Applies
The SSA adopted new regulations effective March 27,
2017, revising the standard for evaluating medical opinion
evidence and effectively abolishing the treating physician rule.
See 20 C.F.R. § 404.1520c. Because Plaintiff filed her claim on
November 14, 2016, the prior regulations, including the treating
physician rule, still apply. See 20 C.F.R. § 404.1527. Under the
treating physician rule, the opinion of a claimant’s treating
physician2 as to “the nature and severity of the [claimant’s]
impairment is given controlling weight so long as it is well-
supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record.” Greek v. Colvin, 802
F.3d 370, 375 (2d Cir. 2015) (citing Burgess, 537 F.3d at 128
(internal quotation marks omitted)).
An ALJ who does not accord controlling weight to a
treating physician’s medical opinion must consider the following
non-exclusive Burgess factors in determining how much weight to
give to the opinion: (1) the frequency, length, nature, and extent
of treatment; (2) the amount of medical evidence supporting the
opinion; (3) the consistency of the opinion with the remaining
2 A treating physician is an “acceptable medical source” with whom Plaintiff
“has, or has had, an ongoing treatment relationship.” See 20 C.F.R. §
404.1527(a)(2).
medical evidence; and (4) whether the physician is a
specialist. Estrella v. Berryhill, 925 F.3d 90, 95‒96 (2d Cir.
2019) (citation omitted); see 20 C.F.R. § 404.1527(c)(2). “The
ALJ must then ‘comprehensively set forth his reasons for the weight
assigned to a treating physician’s opinion.’” Cichocki v. Astrue,
534 F. App’x. 71, 75 (2d Cir. 2013) (citing Burgess, 537 F.3d at
129). “The failure to provide good reasons for not crediting the
opinion of a claimant’s treating physician is a ground for remand.”
Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129-30
(internal quotation marks omitted)).
An ALJ’s failure to explicitly apply the Burgess factors
in determining how much weight to accord the opinions of treating
physicians is a procedural error. See Kennedy v. Comm’r of Soc.
Sec., No. 19-cv-01740(KAM), 2021 WL 848784, at *5 (E.D.N.Y. Mar.
5, 2021) (citing Estrella, 925 F.3d at 96). Where the ALJ
“procedurally err[s], the question becomes whether a searching
review of the record . . . assures the court . . . that the
substance of the . . . rule was not traversed-i.e., whether the
record otherwise provides ‘good reasons’ for assigning ‘[some]
weight’ to [the treating physicians’] opinion[s].” See id.
(quoting Estrella, 925 F.3d at 96). If, upon “a searching review
of the record,” the Court is assured that the substance of the
treating physician rule was not traversed, it will affirm. See
Estrella, 925 F.3d at 96.
B. The ALJ Did Not Traverse the Treating Physician Rule
in Weighing Dr. Tarleton’s Opinion.
In the instant case, Plaintiff’s treating orthopedic
surgeon, Dr. Andrew Tarleton, opined, in a spinal medical source
statement dated June 24, 2019, that Plaintiff’s lumbar spine
impairment prevented her from sitting longer than 10 minutes and
standing or walking for over 10 minutes, and that Plaintiff, in
addition to taking regular scheduled breaks, would need to rest
lying down or reclining in a supine position for more than four
hours in an eight-hour workday to relieve pain or fatigue. (Tr.
at 557.) In addition, Dr. Tarleton indicated that Plaintiff could
not lift and carry any weight in a competitive work situation,
could rarely or never grasp, turn, and twist objects with her
hands, rarely or never use her fingers for fine manipulation, and
rarely or never use her arms for lateral and overhead reaching.
(Id.) Dr. Tarleton also opined that Plaintiff’s symptoms were of
such severity that she would be “off task,” or not be able to
sustain attention and concentration for even simple work tasks,
for 25 percent or more of a typical workday, and that Plaintiff
would need to take unscheduled breaks at least once every half
hour for 30 minutes to an hour. (Id. at 558.) Finally, Dr.
Tarleton indicated that Plaintiff’s condition would produce “good
days” and “bad days,” and that she would likely be absent from
work more than four times a month due to her impairments or
treatment. (Id.)
The ALJ assigned “limited weight” to Dr. Tarleton’s
opinion, having found “the highly restrictive capacity” suggested
by Dr. Tarleton not persuasive because it “conflict[ed] with
[Plaintiff’s] reported activities of daily living,” Dr. Tarleton’s
own treatment notes regarding the improvement of Plaintiff’s
symptoms, the clinical reports of Dr. Syeda Asad, the consultative
examiner, recent diagnostic evidence, and the hearing testimony of
Dr. Elizabeth Atkins, the medical expert. (Id. at 27‒29.) In
according less than controlling weight to Dr. Tarleton’s opinion,
the ALJ failed to explicitly weigh all the Burgess factors,
specifically the frequency, length, nature, and extent of Dr.
Tarleton’s treatment of Plaintiff. Nowhere is it stated in the
ALJ’s decision, for example, that Dr. Tarleton began treating
Plaintiff in January 2019, seeing her monthly or as needed, and
that as of the date of the decision, July 16, 2019, Dr. Tarleton
had last treated Plaintiff on June 19, 2019.
The Court finds that the ALJ set forth good reasons for
according less than controlling weight to Dr. Tarleton’s opinion
and thus did not traverse the substance of the treating physician
rule, despite failing to explicitly consider all the Burgess
factors. Dr. Tarleton’s February 4, 2019 treatment notes state
that the January 2019 MRI of Plaintiff’s lumbar spine indicated
small disc bulges and facet arthropathy at L3/4 and L4/5, minimal
retrolisthesis of L4, and mild bilateral neural foraminal
narrowing at L4/5. (Id. at 546.) In addition, Dr. Tarleton’s
physical examination of Plaintiff in January, February, and June
of 2019 showed that Plaintiff had a reduced range of motion of the
thoracic and lumbar spine in all planes, and a mildly antalgic
gait, and Dr. Tarleton noted Plaintiff’s complaints of reoccurring
lower back pain. (Id. at 546-48, 551‒53, 559‒61.) However, the
result of Plaintiff’s motor exam was 5/5, with light touch intact
throughout both lower extremities, each time Plaintiff was seen by
Dr. Tarleton, (id. at 547-48, 552‒53, 560‒61), and Dr. Asad, the
consultative examiner, indicated in his internal medicine
examination report that Plaintiff “appeared to be in no acute
distress,” had a normal stance and gait, used no assistive device,
had no trouble getting on and off the exam table, and was able to
rise from a chair without difficulty. (Id. at 519.) Furthermore,
the medical expert, Dr. Elizabeth Atkins, who reviewed Plaintiff’s
January 2019 MRI, as well as the MRIs from February, April, and
August of 2016, opined that Plaintiff’s MRIs “have remained
stable,” and noted that Plaintiff did not have any nerve root
compression. (Id. at 57‒58.) Based on the foregoing, the ALJ
determined that though Plaintiff’s lumbar spine impairment imposed
significant functional limitations, it did not hinder Plaintiff’s
physical function to the extent suggested by Dr. Tarleton.
Therefore, the Court concludes that substantial evidence in the
record supports the ALJ’s determination that Dr. Tarleton’s
opinion was not entitled to controlling weight.
Furthermore, Dr. Tarleton opined in his June 24, 2019
spinal medical source statement that Plaintiff could not lift and
carry any weight in a competitive work situation, could rarely or
never grasp, turn, and twist objects with her hands, rarely or
never use her fingers for fine manipulation, and rarely or never
use her arms for lateral and overhead reaching. (Id. at 557.)
Despite this, Dr. Tarleton’s January, February, and June 2019
treatment all indicate to the contrary that Plaintiff’s left and
right deltoids, biceps, triceps, wrist flexors, finger abductors,
and grasp strengths were 5/5, (id. at 547-48, 552‒53, 560‒61),
Plaintiff testified that her daily activities include “some
cooking” and “light housework,” (id. at 55), and the consultative
examiner, Dr. Asad, opined that Plaintiff’s hand and finger
dexterity was intact and that her grip strength was 5/5
bilaterally. (Id. at 520.) The Court is assured, therefore, upon
“a searching review of the record,” that the substance of the
treating physician rule was not traversed, and that the ALJ’s
decision to accord less than controlling weight to Dr. Tarleton’s
opinion regarding the limiting effects of Plaintiff’s lumbar spine
impairments is based on substantial evidence, namely, the
inconsistencies between Dr. Tarleton’s opinion and his own
treatment notes, opinion evidence and findings of the consultative
examiner and the medical expert, and Plaintiff’s reporting of daily
activities.
III. The ALJ’s RFC Determination is Not Supported by
Substantial Evidence.
“Because an RFC determination is a medical
determination, an ALJ who makes an RFC determination in the absence
of supporting expert medical opinion has improperly substituted
his own opinion for that of a physician.” Lao v. Comm’r of Soc.
Sec., No. 18-cv-7462(FB), 2020 WL 4194210, at *3 (E.D.N.Y. July
21, 2020) (quoting Hilsdorf v. Comm’r of Soc. Sec., 724 F. Supp.
2d 330, 347 (E.D.N.Y. 2010)). “An ALJ commits legal error when he
makes a [RFC] determination based on medical reports that do not
specifically explain the scope of claimant’s work-related
capabilities.” Van Dyne v. Saul, No. 20-cv-260(MKB), 2021 WL
1210460, at *15 (E.D.N.Y. Mar. 31, 2021) (quoting Woodford v.
Apfel, 93 F. Supp. 2d 521, 529 (S.D.N.Y. 2000)). Further, though
the ALJ may “choose between properly submitted medical opinions,”
he may not “set his own expertise against that of physicians who
submitted opinions to him.” Meadors v. Astrue, 370 F. App’x 179,
183 (2d Cir. 2010) (summary order) (citation omitted).
In the instant case, the ALJ determined that Plaintiff
had the RFC to perform “less than the full range of light work” as
defined in 20 C.F.R. § 416.967(b)3. Specifically, the ALJ found
that Plaintiff can: (1) lift and/or carry up to 10 pounds
frequently and up to 20 pounds on occasion; (2) sit for six hours
in an eight-hour workday, alternating to a standing position for
five minutes every hour; (3) stand and/or walk for six hours in an
eight-hour workday, alternating to a sitting position for five
minutes every hour; (4) never climb scaffolds or ramps; (5)
frequently climb stairs; and (6) frequently stoop, kneel, crouch,
and crawl. (Tr. at 24.)
As previously discussed, the ALJ gave “limited weight”
to Dr. Tarleton’s opinion. (Id. at 27.) Though the ALJ may assign
less than controlling weight to a treating physician’s opinion, as
long as he sets forth good reasons for doing so, here, the ALJ, in
addition to assigning “limited weight” to Dr. Tarleton’s opinion,
did not adopt any source opinion. The ALJ’s RFC determination is
not supported by the opinion of Dr. Asad, the consultative
examiner, who found “moderate limitations for squatting, kneeling,
bending, walking, and standing for a long period of time,” but did
not specify the scope of Plaintiff’s work-related physical
3 20 C.F.R. § 416.967(b) defines light work as work that “involv[es] lifting no
more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds,” and “requir[ing] 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.” 20 C.F.R. § 416.967(b).
capabilities. (Id. at 520.) Specifically, though Dr. Asad opined
that Plaintiff has “moderate limitations” for squatting, kneeling
bending, walking, and standing for “a long period of time,” he did
opine as to for how many hours in an eight-hour workday Plaintiff
remained capable of performing those same activities. Further,
Dr. Asad did not indicate how much weight Plaintiff could lift
and/or carry, or whether Plaintiff could climb scaffolds, ramps,
or stairs, and stoop, crouch, or crawl.
Similarly, the ALJ’s RFC determination is not supported
by the opinion of the medical expert, Dr. Elizabeth Atkins. Dr.
Atkins testified that Plaintiff was being treated “fairly
conservatively with physical therapy and a TENS Unit” and that
Plaintiff’s latest MRI, performed in January 2019, showed no nerve
root impingement. (Id. at 57‒58.) Dr. Atkins opined, based on
her review of the portion of the record that was provided to her,
which did not include the spinal medical source statement of Dr.
Tarleton, that Plaintiff did not satisfy the criteria of Listing
1.04(a). (Id. at 58.) Because Dr. Atkins, like Dr. Asad, did not
specify the scope of Plaintiff’s work-related physical
capabilities, her opinion does not support the vocational
limitations the ALJ found as part of his RFC determination.
Thus, it appears that the ALJ improperly “interpreted
the raw medical evidence to arrive at the conclusion that Plaintiff
was physically capable of” performing less than the full range of
light work, without the support of any medical opinion. Santangelo
v. Saul, No. 18-cv-6199(CJS), 2019 WL 4409339, at *10 (W.D.N.Y.
Sept. 16, 2019) (finding that “[t]he only discussion of Plaintiff’s
ability to lift, stand, and walk is from her hearing testimony”
and “[t]he ALJ’s discussion of the medical records does not touch
on these physical requirements for light work”); see Van Dyne v.
Saul, No. 20-cv-260(MKB), 2021 WL 1210460, at *15 (E.D.N.Y. Mar.
31, 2021) (“Instead of developing the record, the ALJ concluded
based on the examination findings of normal extremity strength and
gait that there was no basis to conclude that Plaintiff cannot
lift and carry up to twenty pounds occasionally and up to ten
pounds frequently. The ALJ, however, is not permitted to
substitute his own lay opinion of the medical evidence for the
medical opinion of an acceptable medical source.” (citations
omitted)); Balaguer Perez v. Berryhill, No. 17-cv-3045(JMA), 2019
WL 1324949, at *6 (E.D.N.Y. Mar. 25, 2019) (“Without a supporting
medical opinion of Plaintiff’s functional limitations, the ALJ’s
RFC determination that Plaintiff was capable of sedentary work
constituted an impermissible interpretation of bare medical
findings and is not supported by substantial evidence.” (internal
quotation marks and citations omitted)); Guarino v. Colvin, No.
14-cv-00598(MAT), 2016 WL 690818, at *2 (W.D.N.Y. Feb. 22, 2016)
(“Here, the ALJ had no medical source opinions on which to rely in
formulating his RFC finding. As such, his RFC determination
constituted an impermissible interpretation of bare medical
findings.” (collecting cases)). On remand, the ALJ must identify
a medical opinion that supports the RFC determination described in
his decision or any new RFC determination.
IV. The ALJ’s Insufficient Credibility Determination and
Explanations
Furthermore, the Court finds that on remand, the ALJ
should further explain her credibility determinations. The
factors to be considered in assessing a claimant’s credibility
are: “(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)). Thus, though the Commissioner can
consider a claimant’s daily activities in assessing the intensity
and persistence of a claimant’s symptoms, “a claimant need not be
an invalid to be found disabled under the Social Security Act.”
Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (internal
quotation marks and citation omitted). Moreover, ALJs must not
overinterpret a claimant’s ability to perform limited activities
of daily living “as evidence of the ability to maintain full-time,
competitive, remunerative work.” See Joseph Eugene F. v. Comm’r
of Soc. Sec., No. 20-cv-04356(GRJ), 2022 WL 355918, at *6 (Feb.
7, 2022).
Here, the ALJ determined that Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of her
symptoms are not entirely consistent with the evidence in the
record. The ALJ’s determination was based, in part, on “the
relatively broad range of daily activities [Plaintiff] remain[ed]
capable of performing,” such as “personal care, tak[ing] walks for
exercise, prepar[ing] simple meals and cook[ing], . . . light
housework, light laundry, . . . driv[ing] and travel[ing]
independently, shop[ping] as needed, and socializ[ing] regularly.”
(Tr. at 28‒29.) The ALJ, however, did not properly take into
account Plaintiff’s limitations in performing these daily
activities. For example, Plaintiff testified at the hearing that
she would walk around her block once (and maybe twice, if she felt
up to it), which would take about ten minutes, (id. at 43), and
indicated in her Function Report, dated April 5, 2017, that she
“[could not] lift anything more than 5 lbs without causing back
pain.” (Id. at 207.) Furthermore, the ALJ failed to explain how
Plaintiff’s ability to engage in certain limited daily activities
demonstrated her ability to maintain a full-time job involving
less than the full range of light work.
The Court also finds that the ALJ, in characterizing
Plaintiff’s treatment as “conservative,” did not consider whether
the conservative nature of her treatment can be attributed to other
reasons, rather than an indication of the severity of her
conditions. (Id. at 29.) 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 her
subjective complaints,] without considering possible reasons [she]
. . . may not . . . seek treatment consistent with the degree of
[her] . . . complaints.” SSR 16-3P, 2017 WL 5180304 (Oct. 25,
2017). Here, the ALJ did not inquire into or consider Plaintiff’s
possible reasons for not pursuing a more aggressive treatment
regime and instead merely noted the “conservative” treatment. (Tr.
at 29.) On remand, the ALJ should consider the reasons Plaintiff
may not have sought treatment consistent with the degree of her
complaints prior to determining that the alleged intensity and
persistence of her symptoms are inconsistent with the overall
evidence of the record.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for
judgment on the pleadings is GRANTED, Defendant’s cross motion for
judgment on the pleadings is DENIED, and the case is REMANDED for
further proceedings consistent with this Memorandum and Order.
The Clerk of Court is directed to enter judgment remanding this
case, and to close the case.
SO ORDERED.
DATED: September 22, 2022
Brooklyn, New York
__________/s/_______________
HON. KIYO A. MATSUMOTO
United States District Judge