Ortiz v. Kijakazi

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

—————————————————

RADAMES ORTIZ,

Plaintiff, MEMORANDUM AND ORDER

Case No. 1:21-CV-5478

-against-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

—————————————————

Appearances:

For the Plaintiff: For the Defendant:

DANIEL H. FISHMAN BREON PEACE

Chermol & Fishman LLC United States Attorney

11450 Bustleton Avenue By: JULIA C. WALKER

Philadelphia, PA 19116 Unite States Attorney’s Office

Eastern District of New York

c/o SSA/OGC

601 East 12th St., Room 965

Kansas City, MO 64106

BLOCK, Senior District Judge:

Radames Ortiz (“Ortiz”) appeals the Commissioner of Social Security’s (the

“Commissioner”) final decision finding Ortiz not disabled and thus not entitled to

disability insurance benefits under Title II of the Social Security Act. Now before

the Court are Ortiz’s motion for judgment on the pleadings and the

Commissioner’s cross-motion for judgment on the pleadings. Ortiz requests

remand for a de novo hearing before a different administrative law judge (“ALJ”)

because he claims that the ALJ and Appeals Council members who adjudicated his

claim lacked authority to do so under the Federal Vacancies Reform Act

(“FVRA”). He also claims that the ALJ’s decision finding him not disabled lacked

substantial evidence and warrants remand for further proceedings or calculation of

benefits.

For the reasons described below, the Court holds that there has been no

violation of the FVRA, but Ortiz is entitled to remand for further proceedings

because the ALJ committed legal error in finding him not disabled.

I. Procedural Background

The following facts are taken from the administrative record. Ortiz filed an

application for benefits on June 11, 2018, alleging disability beginning on May 1,

2017 due to fibromyalgia and impairments of the right shoulder, lower back, and

left elbow. After his claim was denied, he appeared at a hearing before

Administrative Law Judge Angela Banks (the “ALJ”), who on December 4, 2019

issued an unfavorable decision finding him not disabled. Ortiz’s subsequent

request for review was denied by the Appeals Council on August 6, 2021, making

the ALJ’s decision the final decision of the Commissioner. Ortiz requests that the

ALJ’s decision be set aside and that the case be remanded for further proceedings

or the calculation of benefits.

II. The ALJ’s Appointment by Acting Commissioner Berryhill

Ortiz claims that then-Acting Commissioner Nancy Berryhill (“Berryhill”)

was serving in violation of the Federal Vacancies Reform Act (“FVRA”), 5. U.S.C.

3345 et seq. when she appointed the ALJ and Appeals Council assigned to his

case. Specifically, he argues that Berryhill had served beyond the Federal

Vacancies Reform Act’s (“FVRA”) 210-day statutory term allowance for acting

officials when she appointed the ALJ and presiding Appeals Council judges on

July 16, 2018, and that her illegal service rendered these appointments and the

decisions they rendered invalid.

A. The FVRA

The FVRA provides a “process to govern the performance of duties of

offices in the Executive Branch that are filled through presidential appointment by

and with the consent of the Senate when a Senate confirmed official has died,

resigned, or is otherwise unable to perform the functions and duties of the office.”

S. Rep. No. 105-250, 105th Cong., 2nd Sess. 1998, 1998 WL 404532, at *1 (July

15, 1998). Accordingly, it allows for “temporarily authorizing an acting official to

perform the functions and duties” of such an office when one becomes vacant. 5

U.S.C. § 3347. Acting officials may be designated by three distinct processes. By

default, the “first assistant” under the vacant office ascends to that office in an

acting capacity. 5 U.S.C. § 3345(a)(1). The FVRA also allows the President to

direct a Senate-confirmed official serving elsewhere to fill to role, or an official in

the same agency who satisfies particular qualifications. 5 U.S.C. § 3345(a)(1)-(2).

Acting officials may only serve for designated periods of time, however. A

promoted acting officer may serve “(1) for no longer than 210 days beginning on

the date the vacancy occurs; or . . . once a first or second nomination for the office

is submitted to the Senate, from the date of such nomination for the period that the

nomination is pending in the senate.” 5 U.S.C. § 3346(a)(1)-(2). When a vacancy

exists during the 60 days after a Presidential transition, this 210-day period begins

on the later of 90 days after the new President’s inauguration or 90 days after the

date the vacancy occurs. 5 U.S.C. § 3349a(b). If the first nominee for the vacant

office is not confirmed, an acting official may serve for an additional 210 days and

during the pendency of a second nomination, and another 210 days if that

nomination fails. 5 U.S.C. §§ 3346(b)(1), (b)(2)(A)-(B).

The FVRA’s enforcement provision renders all actions taken by improperly

serving acting officials void: “Unless an officer or employee is performing the

functions and duties in accordance with sections 3345, 3346, and 3347 . . . the

office shall remain vacant” and “only the head of such Executive agency may

perform any function or duty of such office.” 5 U.S.C. § 3348(b)(1)-(2). “An

action taken by any person” not acting in compliance with section 3345, 3346, or

3347 “shall have no force or effect.” 5 U.S.C. § 3348(d)(1).

Berryhill, formerly SSA’s Deputy Acting Commissioner of Operations,

became the Acting Commissioner of SSA on January 20, 2017, the first day after

the transition between the Obama and Trump Presidential Administrations. She

served as Acting Commissioner for the ensuing 300 days, including the initial 210

days allowed under § 3346(a)(1) plus the 90-extension attributable to the vacancy

existing during the first 60 days of a Presidential transition under § 3349a(b).

SSA represents that Berryhill ceased serving as Acting Commissioner on

November 16, 2017, while Ortiz insists that she continued to serve after that date.

Def. Mem. 20, Dkt. No. 21; Pl. Mem. 5-6, Dkt. 19. On March 6, 2018, the General

Accountability Office (“GAO”) issued a report concluding that Berryhill’s

eligibility to serve as Acting Commissioner during her initial 210-day term expired

on November 16, 2017, and that she served under the Acting Commissioner title

after this date in violation of the FVRA. Violation of the 210-day Limit Imposed

by the Vacancies Reform Act of 1998—Commissioner, Social Security

Administration, B-329853, at 2 (Mar. 6, 2018) (hereinafter, 2018 GAO Report).

The report states that “the position of Commissioner should have been vacant

beginning November 17, 2017” and that despite this, “SSA’s website indicates that

Ms. Berryhill continued serving as Acting Commissioner” after that date. Id.; see

also SOCIAL SECURITY, “Social Security History – SSA Commissioners – Nancy

A. Berryhill,” https://www.ssa.gov/history/berryhill.html (accessed Jan. 25, 2023)

(listing Berryhill’s tenure as Acting Commissioner as “January 21, 2017-June 17,

2019”). It also noted that Berryhill could continue fulfilling delegable functions of

the Commissioner’s office as Deputy Commissioner of Operations, her previous

title. 2018 GAO Report 2. After the GOA report, Berryhill continued to lead the

SSA under the title “Deputy Commissioner for Operations, performing the duties

and functions not reserved to the Commissioner of Social Security,” leaving the

Acting Commissioner’s office vacant. See Extension of Expiration Dates for Two

Body System Listings, 83 Fed. Reg. 13862, 2018 WL 1565569 (Apr. 2, 2018)

(including Berryhill’s signature featuring modified title); see also Mateo v.

Berryhill, No. CV 3:16-1057, 2018 WL 1965286, at *3 n.1 (M.D. Pa. Apr. 25,

2018) (“Ms. Berryhill continues to functionally lead the Social Security

Administration from her position of record as Deputy Commissioner of

Operations.”).

On April 17, 2018, President Trump nominated Andrew Saul to serve as the

Commissioner of SSA. Berryhill resumed her tenure as Acting Commissioner

during the pendency of Saul’s nomination, pursuant to § 3346(a)(2) of the FVRA.

5 U.S.C. § 3346(a)(2). Berryhill served until Saul was sworn in as Commissioner

on June 17, 2019 and ratified the appointment of the ALJ and Appeals Council

Judges who adjudicated Ortiz’s claim on July 16, 2018.

B. Analysis

Ortiz argues that Berryhill was illegally serving when she ratified these

appointments because she had served in excess of the 210-day period afforded to

her by § 3346(a). In support, he cites one case from the District of Minnesota,

Brian T.D. v. Kijakazi, 580 F. Supp. 3d 615 (D. Minn. 2022), appeal filed, No. 22-

1601 (8th Cir. Mar. 22, 2022), which held that Berryhill was ineligible to return as

Acting Commissioner during the pendency of Saul’s nomination and could not

ratify appointments during that period. Brian T.D., 580 F. Supp. 3d at 629-32.

Specifically, Brian T.D. found that § 3346(a)(2), which allows an acting official to

serve during the pendency of a nominee before the Senate, only applies when said

nomination is submitted before the initial 210-day window in § 3346(a)(1) has

closed. Id. at 629 (Ҥ 3346(a)(2) does not apply to Berryhill because she was not

serving as Acting Commissioner when Saul was nominated.”). This interpretation

understands § 3346(a)(2) as a tolling provision for the 210-day period in

§ 3346(a)(1), delaying the start of that window until after a nominee is no longer

pending. On the other hand, the Commissioner’s view is that subsection (a)(2)

functions as a “spring-back” provision—“a separate permissible term of service

that may be undertaken even if an officer has previously served as an acting officer

pursuant to subsection (a)(1).” Hernandez v. Comm’r, No. 21CIV10658VBJCM,

2022 WL 18402121, at *11 (S.D.N.Y. Dec. 16, 2022), report and recommendation

adopted, No. 21 CV 10658 (VB), 2023 WL 358780 (S.D.N.Y. Jan. 23, 2023).

Ortiz appeals to Brian T.D., which interpreted subsection (a)(2) as a tolling

provision modifying subsection (a)(1). In doing so, Ortiz asks this Court to go

against the overwhelming majority of courts that have addressed this issue.

Virtually every court to examine § 3346(a) save for the Brian T.D. court has held

that § 3346(a)(2) does amount to a “spring-back” that allowed Berryhill to serve as

Acting Commissioner while Saul’s nomination was pending. See, e.g., Thomas S.

v. Comm’r, No. C21-05213-MAT, 2022 WL 268844, at *3 n.2 (W.D. Wash. Jan.

28, 2022) (holding that § 3346(a)(2) “contains a ‘spring-back’ provision that

enabled Ms. Berryhill to resume her role as Acting Commissioner as of the date

that Andrew Saul was nominated for Commissioner in April 2018”); Reuter v.

Saul, No. 19-CV-2053-LRR, 2020 WL 7222109, at *15 n.11 (N.D. Iowa May 29,

2020), adopted by 2020 WL 6161405, at *6 (N.D. Iowa Oct. 21, 2020); Nw.

Immigrant Rts. Proj. v. U.S. Citizenship & Immigr. Servs., 496 F. Supp. 3d 31, 57-

58 (D.D.C. 2020) (holding that “the FVRA permits an acting official to serve

‘from the date of’ a first nomination for the vacant office and ‘for the period that

the nomination is pending in the Senate,’ even when acting official had already

served “far more than 210 days” before said nomination (emphasis added));

Williams v. Kijakazi, No. 1:21-CV-141-GCM, 2022 WL 2163008, at *4 (W.D.N.C.

June 15, 2022); (“Section 3346(a)(2) provided authority for Berryhill to resume

service as Acting Commissioner as of the date of President Trump’s nomination of

Saul for Commissioner on April 17, 2018”); Brooks v. Kijakazi, No. 1:21CV609,

2022 WL 2834345, at *23 (M.D.N.C. July 20, 2022), report and recommendation

adopted, No. 1:21-CV-609, 2022 WL 17832126 (M.D.N.C. Aug. 19, 2022); Watts

v. Kijakazi, No. CV 21-2044, 2022 WL 18109797, at *15 (E.D. La. Nov. 18,

2022), report and recommendation adopted, No. CV 21-2044, 2023 WL 35799

(E.D. La. Jan. 3, 2023); Lance M. v. Kijakazi, No. 2:21-CV-628, 2022 WL

3009122, at *14 (E.D. Va. July 13, 2022), report and recommendation adopted,

No. 2:21CV628, 2022 WL 3007588 (E.D. Va. July 28, 2022); M.A.K. v. Kijakazi,

No. 1:21-CV-03028-JLK, 2022 WL 16855690, at *4 (D. Colo. Nov. 10, 2022);

Neale v. Kijakazi, No. CV 21-915-SRF, 2022 WL 6111689, at *9 (D. Del. Oct. 7,

2022); Seago v. Kijakazi, No. 1:21-CV-136, 2022 WL 17853369, at *6 (S.D. Tex.

Nov. 15, 2022), report and recommendation adopted, No. 1:21-CV-00136, 2022

WL 17852795 (S.D. Tex. Dec. 22, 2022).

The only in-circuit court to weigh in on the issue has stated the same. See

Hernandez, 2022 WL 18402121, at *11. The Court opts to join this chorus.

C. Statutory Interpretation of the FVRA

In contested issues of statutory interpretation, the Court begins “with the

language of the statute itself,” Caraco Pharm. Lab’ys, Ltd. v. Novo Nordisk A/S,

566 U.S. 399, 412 (2012) (quoting United States v. Ron Pair Enterprises, Inc., 489

U.S. 235, 241 (1989)), examining its “plain meaning . . . by looking to the statutory

scheme as a whole and placing the particular provision within the context of that

statute.” Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir. 2003).

The text and structure of § 3346 and the FVRA suggest that Berryhill was

eligible to serve again as Acting Commissioner when Saul was nominated on

April 17, 2018. Section 3346(a) provides that an acting official may serve “for no

longer than 210 days” after the vacancy occurs, “or” during the pendency of a

nomination submitted to the Senate. 5 U.S.C. § 3346(a)(1)-(2). No portion of the

statutory text suggests that (a)(1) and (a)(2) were intended to operate as mutually

exclusive alternatives. First, disjunctive clauses separated by “or” are normally

read to be inclusive. Tex. Std. Oil., 2008 WL 11399510, at *4 (quoting Garner,

Dictionary of Modern Legal Usage 624); see also U.S. Senate, Office of the

Legislative Counsel, Legislative Drafting Manual § 302, at 64 (1997) (instructing

drafters to “use ‘or’ between the next-to-last criterion and the last criterion to

indicate that a thing is included in the class if it meets 1 or more of the criteria”).

Clauses separated by the disjunctive “or” are also usually interpreted to “have

separate meanings” which are placed “on an equal footing” relevant to each other.

Loughrin v. United States, 573 U.S. 351, 359 (2014); see also Mizrahi v. Gonzales,

492 F.3d 156, 164 (2d Cir. 2007) (“It is a standard canon of statutory construction

that words separated by the disjunctive [‘or’] are intended to convey different

meanings unless the context indicates otherwise.”); 1A Singer, Sutherland

Statutory Construction § 21:14 (7th ed.) (“courts presume that “or” is used in a

statute disjunctively unless there is clear legislative intent to the contrary”).

The only event that must happen in order to trigger eligibility under

§ 3346(a)(2) is for a nomination to be “submitted to the Senate.” Nothing in the

section’s structure or text suggests that the nomination be made during the initial

210-day period, or that (a)(2) modifies (a)(1) in any way. If Congress had intended

to condition eligibility under § 3346(a)(2) in this way, it would have done so

explicitly. Courts must, in ordinary circumstances, “resist reading words . . . into a

statute that do not appear on its face.” Dean v. United States, 556 U.S. 568, 572

(2009) (cleaned up). Here, the plain text of § 3346(a) indicates the 210-day

window and the eligibility for service during the pendency of a nominee constitute

separate, nonexclusive periods of eligibility. See Bauer v. Kijakazi, No. 21-CV-

2008-KEM, 2022 WL 2918917, at *7 (N.D. Iowa July 25, 2022) (“Congress did

not qualify the use of ‘or’ with ‘either,’ which tends to indicate that the alternatives

are mutually exclusive.”); Bernadette H. v. Comm’r of Soc. Sec., 21-CV-20586

(NLH), 2022 WL 17080743, *9 (D.N.J. Nov. 18, 2022) (“the plain reading of

§ 3346(a) shows that that it focuses on when an acting officer may serve rather

than creating limits on service”).

The Brian T.D. court’s reasoning largely hinges on its reading of § 3346(a)’s

preface, which clarifies that the section applies to “the person serving as an acting

officer described under section 3345,” to mean that only an official “presently”

serving as an acting official can serve during a nomination. Brian T.D., 2022 WL

179540, at *11; 5 U.S.C. § 3346(a). Under this reasoning, Berryhill could not serve

during Saul’s nomination because she was not already serving as Acting

Commissioner when Saul was nominated. But the Brian T.D. court added the term

“presently” where it does not exist in the statute, obscuring the true purpose of the

prefatory clause, which is simply to “to make plain that the time limitations

imposed apply to those serving under Section 3345, and not some other vacancy

statute or provision.” Hernandez, 2022 WL 18402121, at *13 (citing S. Rep.

No. 105-250, 1998 WL 404532, at *14-15. It does not place an additional temporal

limit on service independent from those spelled out in (a)(1) and (a)(2).

Several courts have also pointed out the “illogical result” that the Brian T.D.

reading would produce. If § 3346(a) applied exclusively to officials who are

already serving as an acting officer, said officer would need to be serving on the

first date the vacancy exists for the 210-period provided by (a)(1) to apply.

Hernandez, 2022 WL 18402121, at *13; see Brooks, 2022 WL 2834345, at *16

(“Had Congress drafted Section 3346(a) to provide that “the person [who served or

who has served] as an acting officer as described under section 3345 may serve in

the office for no longer than 210 days,’ [it] would provide service time limits only

for individuals who had already served as acting officers, which renders the time

limits nonsensical.”); see also United States v. Turkette, 452 U.S. 576, 580 (1981)

(explaining that “absurd results are to be avoided” in statutory interpretation).

The FRVA’s legislative history also shows this interpretation to be

Congress’ intent. The bill’s senate report describes § 3346(a)(2) as allowing an

acting official to serve while a nomination is pending “even if the nomination is

submitted after the 150 days has passed,”1 and explains that an acting officer

serving under the initial window under (a)(1) “can resume service” once a

nomination is submitted. S. Rep. No. 105-250, 1998 WL 404532, at *14, *19. The

Senate’s interpretation also matches the FVRA’s purpose to “incentivize swift

nomination”—it “encourages the President to submit nominations to allow for

individuals like Berryhill to resume service while a nomination is pending.” Lance

M., 2022 WL 3009122, at *14; Hernandez, 2022 WL 18402121, at *14.

Further support comes from the Executive Branch’s understanding of

§ 3346(a). The Office of Legal Counsel issued an opinion shortly after the FVRA’s

passage clarifying precisely how the windows for service in subsections (a)(1) and

(a)(2) interact, explaining that § 3446(a)(2) contains

1 The 210-day window provided by (a)(1) was initially 150 days in the version of

the bill featured in the report.

a spring-back provision, which permits the acting officer to begin

performing the functions and duties of the vacant office again upon the

submission of a nomination, even if the 210-day period expired before

that nomination was submitted. If the 210-day limitation period expires

before the President has submitted a nomination, the restrictions in

§ 3348 of the Act, which bar anyone from serving in an acting capacity,

become operative . . . If thereafter the President submits a nomination,

an acting officer is again able to perform the functions and duties of the

office as of the date the nomination is submitted.

Guidance on Application of Federal Vacancies Reform Act of 1998, 23 Op. Off.

Legal Counsel 60, 68 1999 WL 1262050 (March 22, 1999) (emphasis added).2 A

more recent report from GAO, which polices violations of the FVRA, expresses a

similar understanding, explaining that an Acting Director of the Office of Science

had served for 210 days and “could resume her service as Acting Director . . .

when the President submitted [a new] nomination to the Senate.” Violation of the

210-Day Limit Imposed by the Federal Vacancies Reform Act of 1998:

Department of Energy, Director of Office of Science, B-328888, at 1-2 (Mar. 3,

2017); see also Violation of the 210-Day Limit Imposed by the Federal Vacancies

Reform Act of 1998, B-326480, at 1-2 (March 30, 2015) (explaining that the

Acting Inspector General, who had served beyond 210 days, could once more

2 Memos from the Office of Legal Counsel lack legally binding or precedential

force, bearing closer resemblance to Executive Branch policy decisions. However,

the Court examines them here as evidence of the Executive’s understanding of a

law that it has the responsibility to enforce and carry out, and that is central to the

operation of the Executive Branch and the federal government as a whole. See

Kimberly L. Wehle, “Law and” the OLC’s Article II Immunity Memos, 32 STAN.

L. & POL’Y REV. 1, 36-41 (2021).

legally serve in that position if “a nomination is submitted to the senate” due to the

FRVA’s “spring-back provision”). The two branches tasked with carrying out the

FVRA’s mandates and ensuring the efficient functioning of government have

clearly and repeatedly expressed an understanding that § 3346 contains a “spring-

back” provision, and the windows for service under (a)(1) and (a)(2) are not

mutually exclusive. Seeing as this understanding matches that suggested by the

plain meaning of the FVRA’s text and the overwhelming majority of courts, the

Court is compelled to share it.

Ortiz zeroes-in on the period of Berryhill’s service as Acting Commissioner

after November 17, 2017 and before Saul’s nomination, suggesting that this

unauthorized service rendered her powerless even after Saul’s nomination.

However, nothing in the FVRA’s text disqualifies an official who improperly

served past the initial 210-day window from properly serving again once a

nomination is submitted. The above-cited reports by OAG say exactly that—an

official improperly serving in an acting capacity beyond the window permissible

under § 3446(a)(1) may still later properly serve under (a)(2). Ortiz suggests that

this interpretation would render subsection (a)(1)’s 210-day limit without “real

meaning.” Pl.’s Rep. at 7, Dkt. No. 19. But he ignores the separate allowance to

serve while a nomination is pending under § 3446(a)(2)—Berryhill’s ratification of

the Appeals Council judges and ALJ occurred in July 2019, while she was lawfully

serving during Saul’s pending nomination. The fact of her impermissible service

before this is inconsequential. Recognizing her authority during Saul’s nomination

has no bearing on the enforceability of § 3446(a)(1).

The Court finds that § 3346(a)(2) constitutes a “spring-back” provision

allowing for the same official to serve as an acting officer for 210 days pursuant to

§ 3346(a)(1) and during the pendency of a nomination under § 3346(a)(2). This

interpretation is supported by the statute’s plain text, its legislative history, the

understandings of the Executive Branch bound by it, and virtually every court

interpreting it. Because Berryhill was lawfully serving during the pendency of

Saul’s nomination when she ratified the appointment of the Appeals Council

judges and the ALJ who adjudicated Ortiz’s claim, they did not lack the authority

to exercise authority over his proceedings and he is not entitled to a de novo

hearing before a different ALJ.

III. The ALJ’s Disability Finding

A. Legal Standard

District courts have jurisdiction to review a final decision of the Commissioner

under 42 U.S.C. § 405(g). The reviewing district court must “conduct a plenary

review of the administrative record to determine if there is substantial evidence,

considering the record as a whole, to support the Commissioner’s decision and if

the correct legal standards have been applied.” Rucker v. Kijakazi, 48 F.4th 86, 90-

91 (2d Cir. 2022) (quoting Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019)). A

reviewing district court is limited to this inquiry; it may not conduct a de novo

review or substitute its own judgment for that of the ALJ. Cage v. Comm’r of Soc.

Sec., 692 F.3d 118, 122 (2d Cir. 2012). “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,” Hilsdorf v. Comm'r of Soc. Sec., 724 F. Supp. 2d 330, 342 (E.D.N.Y.

2010) (quoting Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)).

“[S]ubstantial evidence . . . means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Selian v. Astrue, 708 F.3d

409, 417 (2d Cir. 2013) (quoting Richardson v. Perales, 402 U.S. 389, 401

(1971)). The ALJ’s legal conclusions, however, are given less deference, and are

not deferred to by reviewing courts “where an error of law has been made that

might have affected the disposition of the case.” Hilsdorf, 724 F. Supp. 2d at 342

(quoting Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004)) (alteration in

original). Legal error, including a “‘[f]ailure to apply the correct legal standards”

or a “failure to adhere to the applicable regulations” justifies reversal.

While remanding for further proceedings is ordinarily the favored remedy

upon reversal, remanding for calculation of benefits is appropriate when the record

provides “persuasive proof of disability and a remand for further evidentiary

proceedings would serve no purpose.” Demars v. Comm’r of Soc. Sec., 841 F.

App’x 258, 263 (2d Cir. 2021) (quoting Parker v. Harris, 626 F.2d 225, 235 (2d

Cir. 1980)).

B. The ALJ’s Decision

The Commissioner uses a five-step inquiry to evaluate disability claims

under the Social Security Act, determining

(1) whether the claimant is currently engaged in substantial gainful

activity; (2) whether the claimant has a severe impairment or

combination of impairments; (3) whether the impairment meets or

equals the severity of the specified impairments in the Listing of

Impairments; (4) based on a “residual functional capacity” assessment,

whether the claimant can perform any of his or her past relevant work

despite the impairment; and (5) whether there are significant numbers

of jobs in the national economy that the claimant can perform given the

claimant’s residual functional capacity, age, education, and work

experience.

Estrella v. Berryhill, 925 F.3d at 94 (quoting McIntyre v. Colvin, 758 F.3d 146,

150 (2d Cir. 2014)). The plaintiff bears the burden of persuasion for the first four

factors; if they are successful, the burden shifts to the Commissioner during

analysis of the fifth factor. Id.

In the first three inquiries, the ALJ found that Ortiz had not been engaged in

substantial gainful activity since his alleged onset date on May 1, 2017, and that he

suffered from severe impairments including fibromyalgia, degenerative joint

disease, and degenerative disc disease, which “significantly limit [his] ability to

perform basic work activities.” A.R. 21.3 The ALJ found that several other

impairments, including depressive disorder, anxiety disorder, and panic disorder,

did not cause more than a slight limitation on Ortiz’s ability to perform basic

mental activities for work, and as such, were not severe impairments. None of

Ortiz’s impairments were found to match the criteria of any listed impairments at

step three of the analysis.

At step four, the ALJ found that Ortiz retained the residual functional

capacity to perform light work under 20 C.F.R. § 404.1567(b), with the exceptions

that he could “occasionally balance, stoop, crouch, kneel, crawl, and climb ramps

or stairs, but can never climb ladders, ropes, or scaffolds.” A.R. 24. According to

the ALJ, Ortiz could “reach overhead occasionally and in all other directions

frequently with the right dominant upper extremity,” and could not operate motor

vehicles on the job, “work around unprotected heights, or with moving mechanical

parts.” A.R. 24-25.

The ALJ went on to find that, based on the testimony of a vocational expert,

Ortiz could perform his past relevant work as a substance abuse counselor, and that

he was therefore not disabled. She based this finding on a hypothetical question

she posed to the expert based on Ortiz’s conditions, to which the vocational expert

3 All references are to the administrative record.

answered that someone with Ortiz’s limitations could perform his past relevant

work as a substance abuse counselor.

C. Analysis

Remand is warranted because the ALJ committed multiple legal errors in

reaching legal conclusions, including impermissibly substituting her own opinion

for that of medical professionals and failing to further develop the record where

apparent gaps existed. 20 C.F.R. §§ 404.1520c(c).

An ALJ is not permitted to substitute her own judgement of a claimant’s

condition for that of a medical professional. See Balsamo v. Chater, 142 F.3d 75,

91 (2d Cir. 1998) (“the ALJ cannot arbitrarily substitute his own judgment for a

competent medical opinion . . . he is not free to set his own expertise against that of

a physician’) (cleaned up)); Van Dyne v. Saul, No. 20-CV-260 (MKB), 2021 WL

1210460, at *15 (E.D.N.Y. Mar. 31, 2021) (“Because an RFC determination is a

medical determination, an ALJ who makes an RFC determination in the absence of

supporting expert medical opinion has improperly substituted his own opinion for

that of a physician and has committed legal error”) (cleaned up).

The ALJ substituted her own opinion of Ortiz’s condition for those of two of

the Commissioner’s consultative doctors. Two examining doctors in October 2018

found limitations in Ortiz’s physical and mental capabilities. First, Dr. Lyudmila

Trimba, a physiatrist, found that Ortiz had mild to moderate limitations in sitting,

standing, walking for prolonged periods, climbing steps, pushing, and pulling

heavy objects, and found that Ortiz would experience daily schedule interruption

due to fibromyalgia. Dr. Clementina Porcelli, after a consultative psychiatric

evaluation, concluded that “there may be mild to moderation limitation with regard

to understanding, remembering and applying complex directions and instructions,”

as well as “interacting adequately with supervisors, co-workers and the public and

with sustaining concentration and performing a task at a consistent pace, sustaining

an ordinary routine, regular attendance at work and with regulating emotions,

controlling behavior and maintaining well being [sic].” A.R. 358. She diagnosed

Ortiz with unspecified depressive disorder, unspecified anxiety disorder, panic

attacks and posttraumatic stress disorder, and found that he suffered from

generalized pain and stiffness as well as blurry vision.

The ALJ isolated information from the record to undermine these

recommendations. She prioritized her own subjective determination of Ortiz’s

condition by labelling Dr. Trimba’s report as “generally mild,” A.R. 27. The ALJ

also found the report by Dr. Porcelli not persuasive because it conflicted with her

opinion of Ortiz’s mental status as “benign.” See A.R. 22 (“The opinion is not

supported by the benign mental status findings . . . and is not accepted as

persuasive”).

The ALJ also committed legal error by faulting the medical experts for

failing to provide sufficient evidence of their opinions. It is an ALJ’s duty, not the

doctors’ responsibility, to flesh out any inconsistencies presented in the record. See

Calzada v. Astrue, 753 F. Supp. 2d 250, 259 (S.D.N.Y. 2010) (“[I]f a physician’s

finding in a report is believed to be insufficiently explained, lacking in support

with the physician’s other reports, the ALJ must seek clarification and additional

information from the physician to fill any clear gaps before dismissing the doctor’s

opinion.”); see also Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (“Because a

hearing on disability benefits is a non-adversarial proceeding, the ALJ generally

has an affirmative obligation to develop the record.”). The ALJ did not accept Dr.

Porcelli’s opinion as persuasive because it was “not supported by the benign

mental status findings or the claimant’s lack of treatment,” A.R. 22, and discounted

Dr. Trimba’s opinion because the limits she found were “not supported by [Ortiz’s]

endorsements to Dr. Trimba, or her generally mild findings on examination.” A.R.

27. By failing to further investigate these inconsistences, the ALJ fell short of her

duty to develop the record.

Remand is appropriate because the ALJ came to a conclusion based on legal

error. If not for these errors, the ALJ may have found Ortiz to be disabled. See

Skrodzki v. Comm’r of Soc. Sec. Admin., 693 F. App'x 29 (2d Cir. 2017) (“A

remand for a rehearing is proper when further findings would so plainly help to

assure the proper disposition of the claim”) (cleaned up).

IV. CONCLUSION

Ortiz’s motion for judgment on the pleadings is granted, the Commissioner’s

cross-motion for judgment on the pleadings is denied, and the case is remanded for

further proceedings in accordance with this Order.

SO ORDERED.

_/S/ Frederic Block___________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

March 7, 2023