The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
eee ee ee
SANTA E. BERTE, :
Plaintiff, :
: MEMORANDUM & ORDER
Vv. : 20-CV-2889 (WFK)
COMMISSIONER OF SOCIAL SECURITY, :
Defendant. :
ee eee
WILLIAM F. KUNTZ, II, United States District Judge:
Santa E. Berte (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g) alleging the
Commissioner of the Social Security Administration (the “Commissioner” or “Defendant’’)
improperly denied Plaintiff's application for Social Security Disability Insurance (“SSDI”)
benefits. Plaintiff and Defendant both move for judgment on the pleadings under Rule 12(c) of
the Federal Rules of Civil Procedure. ECF Nos. 24, 25. For the reasons set forth below,
Defendant’s motion is DENIED, and the Court REMANDS this action to the Social Security
Administration for further proceedings.
PROCEDURAL HISTORY
On April 17, 2017, Plaintiff filed a claim for SSDI benefits, alleging a disability onset
date of November 12, 2016. Administrative Record (“Tr.”), ECF No. 23, at 155-56. On July 19,
2017, the state agency denied Plaintiffs claim. Jd. at 88-95. On August 18, 2017, Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”). Id. at 96-98. On February 5, □
2019, Plaintiff appeared for a hearing with her attorney and a Spanish translator before ALJ
Mark Solomon. /d. at 32-53. On April 8, 2019, ALJ Solomon issued a decision denying
Plaintiff's claim. /d. at 9-31. Plaintiff timely requested Appeals Council review of ALJ
Solomon’s decision. On May 12, 2020, the Council denied Plaintiff's request for review. Id. at
1-8. The Commissioner took no further action. Therefore, the Court has jurisdiction pursuant to
42 U.S.C. § 405(g) to review the Commissioner’s final decision. It does so now.
1 .
FACTS
The evidence in this case is undisputed, and the Court adopts Defendant’s factual
recitation. Def. Mem., ECF No. 25, at 5-20.
DISCUSSION
| I. Legal Standards
a. Standard of Review
When a claimant challenges a denial of disability benefits by the Social Security
Administration (“SSA”), the Court’s function is not to evaluate de novo whether the claimant has
a disability but rather to determine “whether the correct legal standards were applied and whether
substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004);
see also 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla”—it is “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal quotation omitted). The reviewing
court must examine the entire record, weighing the evidence on both sides to ensure the claim
“has been fairly evaluated.” Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Grey v.
Heckler, 721 F.2d 41, 46 (2d Cir. 1983)).
The Commissioner, not the courts, “weigh[s] the conflicting evidence in the record” and
resolves such conflicts. Clark v. Comm’r of Soc. Sec., 143 F.3d 115,118 (2d Cir. 1998). “While
the ALJ need not resolve every conflict in the record, the crucial factors in any determination
must be set forth with sufficient specificity to enable the reviewing court to decide whether the
determination is supported by substantial evidence.” Calzada y. Astrue, 753 F. Supp. 2d 250,
268-69 (S.D.N.Y. 2010) (Sullivan, J.) (internal quotation and alterations omitted). To fulfill this
burden, the ALJ must “adequately explain his reasoning in making the findings on which his
ultimate decision rests” and must “address all pertinent evidence.” Kane v. Astrue, 942 F. Supp.
2d 301, 305 (E.D.N.Y. 2013) (Kuntz, J.) (quoting Calzada, 753 F. Supp. 2d at 269).
b, Determination of Disability
To be eligible for SSI benefits, an individual must be “aged, blind, or disabled” as
defined in 42 U.S.C. § 1382c and, inter alia, meet the resource and income limits specified in the
Act. For SSI purposes, disability is defined as the “inability 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.” 42 U.S.C. § 1382c(a)(3)(A). The impairment in question must be
of “such severity that [the claimant] is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” Id. § 1382c(a)(3)(B).
To evaluate a disability claim, the Commissioner must apply the five-step sequential
process set forth in 20 C.F.R. § 416.920. See McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir.
2014). First, the Commissioner must determine whether the claimant is engaged in “substantial
gainful activity.” 20 C.F.R. § 416.920(a)(4)(@). If not, the second step is to determine whether
the claimant has a “severe medically determinable physical or mental impairment.” Id.
§ 416.920(a)(4)(ii). Ifthe claimant has such an impairment, the third step is to determine
whether the impairment or combination of impairments meets or equals one of the listings in
Appendix 1 of the regulations. Jd. § 416.920(a)(4)(iii). If the claimant’s impairment does not
match any of the listings, the fourth step requires the Commissioner to determine whether the
claimant’s residual functional capacity (“RFC”) allows the claimant to perform their past
relevant work. Jd. § 416.920(a)(4)(iv). Ifthe claimant cannot perform past relevant work, the □
3 .
fifth and final step is to determine whether the claimant can perform any job based on his or her
RFC and other vocational considerations, such as work experience, age, and education. Jd.
§ 416.920(a)(4)(v). The claimant bears the burden of proving the first four steps, then the burden
shifts to the Commissioner at the fifth step. Rosa v. Callahan, 168 F.3d 72, 77-78 (2d Cir.
1999).
In making a disability determination, “[t]he ALJ will consider all of the available medical □
evidence, including a claimant’s statements, treating physician’s reports, and other medical
professional reports.” Fontanarosa v. Colvin, 13-CV-3285, 2014 WL 4273321, at *12 .
(E.D.N.Y. Aug. 28, 2014) (Brodie, J.) (internal citation omitted). When evaluating the
persuasiveness of a medical opinion, the ALJ will consider five factors: (1) supportability; (2)
consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors, including
“evidence showing a medical source has familiarity with the other evidence in the claim or an
understanding of [the SSA] disability program's policies and evidentiary requirements.” 20
C.F.R. § 404.1520c(c). “Using these factors, the most important of which are supportability and
consistency, the ALJ must articulate ‘how persuasive [he] find|s] all of the medical opinions and
all of the prior administrative medical findings in [the claimant’s] case record.’” Aviles-Guzman
v. Comm □□ of Soc. Sec., 19-CV-5043 (PKC), 2021 WL 663979, at *9 (E.D.N.Y. Feb. 18, 2021)
(Chen, J.) (citing 20 C.F.R. § 404.1520c(b)). An ALJ is specifically required to “explain how
[he or she] considered the supportability and consistency factors” for a medical opinion. 20
C.F.R. §§ 404.1520c (b)(2), 416.920c(b)(2).
II. ALJ Solomon’s Decision
a. ALJ’s Conclusions
ALJ Solomon found (1) Plaintiff met the insured status requirements of the SSA through
September 30, 2020; (2) Plaintiff had not engaged in substantial gainful activity since November
12, 2016, the alleged disability onset date; (3) Plaintiff had severe impairments of diabetes
mellitus and depression; (4) Plaintiff did not have an impairment or combination of impairments
meeting or medically equaling the severity of a listed impairment; and (5) Plaintiff had the RFC
to perform medium work as defined in 20 C.F.R § 404.1567(c), except that Plaintiff must avoid
working at unprotected heights and is limited to unskilled work with no contact with the general
public. Tr. at 20-30.
ALJ Solomon found while Plaintiff's medically determinable impairments could
reasonably be expected to cause her alleged symptoms, her statements concerning the intensity,
persistence, and limiting effects of her symptoms are inconsistent because “the record fails to
document that she is unable to perform work at the medium exertional level with the additional
restrictions included in the residual functional capacity above.” Tr. at 23.
ALJ Solomon also found most of the medical opinions in Plaintiffs record unpersuasive.
Particularly relevant here, ALJ Solomon deemed the opinions of Plaintiffs treating physician Dr.
Juan Cortes, D.O., and internal medicine consultative examiner Allen Meisel, M.D.
unpersuasive. Tr. at 24-25.
Dr. Cortes diagnosed Plaintiff with neuropathy, arthritis, depression, diabetes, and back
pain, and concluded Plaintiff was restricted to lifting or carrying no more than ten pounds
occasionally and could never reach overhead, handle, finger, feel, push, or pull bilaterally,
although she could occasionally reach in other directions, Jd. at 366-68. However, ALJ
Solomon found Dr. Cortes’s opinion that Plaintiff “is unable to perform even sedentary work due
to neuropathy, diabetes, back pain and dizziness unpersuasive.” Jd. at 24. According to ALJ
.
Solomon, Dr. Cortes’s opinion was unsupported by the doctor’s treatment notes and was
insufficiently supported by “limited diagnostic testing in the record as a whole.” Jd. at 25.
Plaintiff also received a consultative examination from Dr. Meisel on May 22, 2017, who
concluded Plaintiff “has moderate limitations to standing, walking, climbing stairs, bending and
kneeling.” Jd. at 224. ALJ Solomon found Dr. Meisel’s opinion “unpersuasive as to the
moderate limitations because the term itself is vague.” /d. at 25. ALJ Solomon determined Dr.
Meisel’s opinion “lacked support in the record,” and also found the record itself “lack[ed] any
diagnostic evidence to provide an etiology for the claimant’s back complaints.” Jd.
b. ALJ's Failure to Develop the Record
Before assessing whether the ALJ’s decision is supported by substantial evidence, this
Court must first determine whether the ALJ fully developed the record in Plaintiff's case. The
Second Circuit has explained “it is the well-established rule in our circuit ‘that the social security
_ ALJ, unlike a judge in a trial, must on behalf of all claimants . . . affirmatively develop the record
in light of the essentially non-adversarial nature of a benefits proceeding.’” Moran v. Astrue,
569 F.3d 108, 112 (2d Cir. 2009) (citation omitted). This duty applies even when a claimant is
‘represented by counsel. Jd. “Whether the ALJ has discharged this duty is a threshold question
that must be addressed by the reviewing court before deciding whether the Commissioner’s final
decision is supported by substantial evidence pursuant to 42 U.S.C. § 405(g).” Bealer v.
Berryhill, 18-CV-10483 (VSB) (XHP), 2019 WL 13131904, at *11 (S.D.N.Y. Dec. 23, 2019)
(Parker, M.J.), report and recommendation adopted sub nom. Bealer v. Saul, 18-CV-10483
(VSB) (KHP), 2020 WL 12949468 (S.D.N.Y. Mar. 2, 2020) (Broderick, J.).
Plaintiff argues ALJ Solomon erred by failing to develop the record. In particular,
Plaintiff argues ALJ Solomon erred by “focus[ing] on what he found to be inconsistent” without
making ‘“‘any effort to clarify the record.” Pl. Mem. at 22. This Court agrees. Since ALJ
Solomon relied on the lack of diagnostic testing in Plaintiff's medical records to find her not
disabled, he should have more fully developed the record with respect to the diagnostic tests
listed in Plaintiffs medical records.
Plaintiff's medical records indicate Dr. Cortes ordered nerve testing on Plaintiff in
August 2017, November 2017, and October 2018. See Tr. at 405-06 (listing “AUTONOMIC
NERV FUNCTION TEST” under “PROCEDURES” for August 10, 2017 appointment); id. at
428 (listing “Nerve Conduction Study” under “ORDERS/LABS” for November 16, 2017
appointment); id. at 516 (listing “AUTONOMIC NERV FUNCTION TEST” under
“PROCEDURES” for October 11, 2018 appointment). Dr. Cortes’s notes from Plaintiff's
appointment on August 10, 2017, which indicate Dr. Cortes ordered nerve testing, reveal
Plaintiff was due for a “follow up in 1 week for test results.” Jd. at 406. However, the record is
silent as to those test results. Notes from Plaintiff's next recorded appointment with Dr. Cortes,
on September 14, 2017, also do not contain the results of Plaintiff's nerve function tests. Nor
does the remainder of the record include these test results. Indeed, results from the nerve
conduction study ordered by Dr. Cortes in October 2017 are similarly absent from the record.
Plaintiff's medical records also reference electromyography (EMG) tests ordered by Dr.
Jeffrey Lucido, DPM, at NYU Langone Brooklyn Podiatry Associates in October 2017. Tr. at
304 (noting “EMG WITH NCV” tests ordered for neuritis due to diabetes mellitus and acute left-
sided low back pain with left-sided sciatica). These same notes indicate Dr. Lucido also ordered
an MRI to identify “[s]oft tissue lesion on the dorsal aspect of left foot.” fd. Under the
“i[nstructions” portion of the appointment summary, Dr. Lucido directed Plaintiff to “[rJeturn in
2 weeks for MRI results.” Jd However, as with the autonomic nerve function and nerve
conduction tests ordered by Dr. Cortes and the EMG tests ordered by Dr. Lucido, the record does
not contain any MRI results.
In his decision denying Plaintiff's claim, ALJ Solomon repeatedly emphasized the lack of
diagnostic testing in Plaintiff's file to justify rejecting various physicians’ medical opinions. For
example, in finding Dr. Cortes’s medical opinion unpersuasive, ALJ Solomon explained “[tJhere
is limited diagnostic testing in the record as a whole other than Dr. Mittal’s 2019 noninvasive
peripheral arterial study to support [Dr. Cortes’s] diagnoses of arthropathy, neuropathy, back
pain, arthritis.” Jd. at 25. Similarly, in finding Dr. Meisel’s 2017 opinion “unpersuasive as to
the moderate limitations,” ALJ Solomon noted “[t]he record also lacks any diagnostic evidence
to provide an etiology for the claimant’s back complaints.” Id.
At the administrative hearing on Plaintiffs claim, the ALJ asked Plaintiff's counsel
whether there was any “diagnostic testing” related to Plaintiff's reported osteoarthritis in the
record. Jd. at 37. Plaintiff's counsel responded, “I only see it in the clinical notes, the
osteoarthritis. I didn’t see like an MRI, I don’t believe.” fd ALJ Solomon made no reference to
clinical testing related to Plaintiff's neuropathy symptoms during the hearing. Notably,
Defendant references the lack of diagnostic testing in Plaintiff's medical records to justify ALJ
Solomon’s decision: “Plaintiff never sought treatment from a specialist or underwent any
pertinent testing such as nerve conduction studies or electromyography (EMG).” Def. Mem. at
25.
Plaintiff argues that because “Dr. Cortes’s office visit notes did not contain any
diagnostic test results, while at the same time documenting the fact that the doctor ordered many
such tests, and the importance the ALJ and the Commissioner both place upon the lack of an
or Nerve Conduction Study, ALJ Solomon had an obligation to make further, specific
inquiry regarding the multiple Nerve Conduction Studies ordered by the doctor.” PI. Reply at 3.
The Court agrees. Since ALJ Solomon highlighted the purported inconsistencies between
the medical opinions in Plaintiff's record and the lack of diagnostic testing supporting those
opinions, the ALJ should have made greater efforts to fill in the gaps related to Plaintiff's nerve
conduction, EMG, and MRI tests. By failing to make further inquiry regarding the results of the
diagnostic tests listed in Plaintiff's medical records, ALJ Solomon did not fulfill his duty to
develop the record.
CONCLUSION
For the foregoing reasons, Defendant’s motion for judgment on the pleadings, ECF No.
25, is DENIED and Plaintiff's motion for judgment on the pleadings, ECF No. 24, is GRANTED
to the extent it seeks remand. The Court hereby REMANDS this action to the Social Security
Administration for further administrative proceedings, including a new decision, consistent with
this opinion. .
SQ-ORDERED. SS
ZION: WILLIAM F. KUNTZ. 11
UNITED STATES DISTRICT JUDGE
Dated: April 3, 2023
Brooklyn, New York
.