Tention v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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HILDA TENTION,

Plaintiff,

MEMORANDUM AND ORDER

-against-

21-CV-04659 (KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Hilda Tention (the “Plaintiff”) appeals the

final decision of the Commissioner of Social Security (the

“Defendant” or the “Commissioner”) finding her 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. 10-1, Joint Stipulation of Facts.) The

Court briefly recounts the facts relevant to the instant motions.

On July 29, 2016, Plaintiff filed an application for

disability insurance benefits (“DIB”), alleging disability since

December 11, 2015. (ECF No. 7, Administrative Transcript (“Tr.”),

at 13, 216-222.) Plaintiff alleged that she was disabled due to

problems with her back, both shoulders, head, and lower

extremities, in addition to joint pain, high blood pressure,

borderline diabetes, and deep vein thrombosis with a blood clot in

her left leg. (Id. at 446.) Her application was denied on

September 20, 2016. (Id. at 59-65.)

On November 3, 2016, Plaintiff filed a written request

for a hearing before an administrative law judge. (Id. at 110-

12.) Administrative Law Judge Michael Friedman (“ALJ Friedman”)

held a hearing on September 14, 2018, during which Plaintiff

appeared and testified. (Id. at 69.) In an opinion dated November

5, 2018, ALJ Friedman determined that Plaintiff was not disabled.

(Id. at 66-75.) Plaintiff appealed the ALJ’s decision to the

Appeals Council. (Id. at 164-65.) On March 25, 2020, the Appeals

Council granted Plaintiff’s request for review of ALJ Freidman’s

decision and remanded the case to a different ALJ because of ALJ

Friedman’s failure to sufficiently explain how Plaintiff’s

functional limitations, as detailed by Dr. Bhargava’s report,

factored into the assessment of Plaintiff’s residual functional

capacity (“RFC”). (Id. at 81.) On July 7, 2020, Administrative

Law Judge Ifeoma N. Iwuamadi (“ALJ Iwuamadi” or the “ALJ”) held a

hearing by phone of which Plaintiff appeared with an attorney

representative and testified. (Id. at 13.) In a decision dated

January 29, 2021, ALJ Iwuamadi determined that Plaintiff was not

disabled. (Id. at 20.) Plaintiff appealed ALJ Iwuamadi’s

decision to the Appeals Council. (Id. at 213-14.) On July 3,

2021, the Appeals Council denied Plaintiff’s request for review,

making the decision by ALJ Iwuamadi the final determination of

the Commissioner. (Id. at 1.)

Plaintiff timely initiated the instant action on August

18, 2021. (ECF No. 1, Complaint.) On July 5, 2022, Defendant

filed the Administrative Transcript. (Tr.) On December 9, 2021,

Plaintiff served her notice of motion and memorandum of law in

support of her motion for judgment on the pleadings. (ECF No. 9,

Memorandum of Law in Support of Plaintiff’s Motion for Judgement

on the Pleadings, (“Pl. Mem.”).) On June 15, 2022, Defendant

served its notice of cross-motion and memorandum of law in support

of its cross-motion for judgment on the pleadings and in

opposition to Plaintiff’s motion. (ECF No. 10, Memorandum of Law

in Support of Defendant’s Cross-Motion for Judgment on the

Pleadings and in Opposition to Plaintiff’s Motion for Judgment on

the Pleadings, (“Def. Mem.”).) The entire set of motion papers

was filed on July 5, 2022.

LEGAL STANDARD

To receive disability benefits, a claimant must be

“disabled” within the meaning of the Act. 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). 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 which exists in the national

economy. 42 U.S.C. § 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. 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. 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 [s]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 h[er]

prior type of work, the Commissioner must find

h[er] 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 “general burden of

proving . . . disability.” 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 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 remand

for 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 the record before the Court provides “persuasive

proof of disability and a remand for further evidentiary

proceedings would serve no purpose,” however, 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. ALJ Iwuamadi’s Disability Determination

Using the five-step sequential process, the ALJ

determined at step one that Plaintiff had not engaged in

substantial gainful activity since the alleged onset date of

December 11, 2015. (Tr. at 16.) At step two, the ALJ determined

Plaintiff suffered from the severe impairments of left lumbar

radiculopathy, post-traumatic concussion, cervicalgia and

headaches which significantly limit Plaintiff’s ability to perform

basic work activities. (Id.)

At step three however, the ALJ determined that Plaintiff

does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed

impairments in 20 C.F.R. § 404, Subpart P, Appendix 1 (20 C.F.R.

§§ 404.1520(d), 404.1525, and 404.1526). (Id.) Specifically, the

ALJ found that Plaintiff’s impairments did not meet the criteria

of spine related disorders under listing 1.04A. (Id.)

Additionally, the ALJ considered whether Plaintiff’s

headaches rose to the level of classification as a neurological

disorder. (Id.) Evaluated under SSR 19-4p, the provision to

evaluate headaches and recurring pain in the head, scalp, or neck

as a neurological disorder, the ALJ determined that there was

insufficient evidence to demonstrate that Plaintiff’s headaches

were severe enough to rise to the level of a listed neurological

disorder. (Id.) The ALJ did not specify the reason for finding

that the Plaintiff did not provide sufficient evidence that her

headaches met the listings for a neurological order.

At step four of the five-step sequential evaluation

process, the ALJ found that Plaintiff had the RFC to perform light

work, with the following limitations: (1) only occasionally

performing bilateral overhead reaching; (2) only occasionally

climbing ramps and stairs; (3) never climbing ladders, ropes, or

scaffolds; (4) never working at unprotected heights; (5) never

working with moving mechanical parts; and finally, (6) never

operating a motor vehicle. (Id.)

In determining that Plaintiff had the RFC to perform

light work with special conditions, the ALJ considered Plaintiff’s

hearing testimony and medical records. (Id. at 17.) The medical

records included a report from Plaintiff’s treating physician Dr.

Uday Bhargava M.D., as well as two reports authored by Plaintiff’s

treating neurologist Dr. Bhim Nangla, and his team physicians,

Drs. R.C. Krishan (neurologist), Anmika Jain (rehabilitation

specialist), with a separate opinion submitted by Dr. Jeff Mollins

(chiropractor). (Id. at 17.) The ALJ concluded that although

Plaintiff’s medically determinable impairments could reasonably be

expected to cause the alleged symptoms, Plaintiff’s statements

concerning the intensity, persistence, and limiting effects of

Plaintiff’s symptoms were not entirely consistent with the medical

evidence and other evidence in the record. (Id. at 19.)

Finally, at step five of the sequential evaluation

process, the ALJ found, based on Plaintiff’s RFC, that she was

capable of performing her past relevant work as a ward clerk or an

admission clerk. (Id. at 19.) In arriving at this conclusion,

the ALJ relied on the vocational expert’s testimony that Plaintiff

retains the RFC to perform the functional demands and job duties

of a ward clerk or an admission clerk. (Id.) Accordingly, the

ALJ found that Plaintiff was not “disabled” and thus not entitled

to DIB under the Act. (Id. at 20.)

II. ALJ Iwuamadi’s Assessment of Opinion Evidence

Under the treating physician rule, the opinion of a

claimant’s treating physician as to “the nature and severity of

the [claimant’s] impairment is given ‘controlling weight’ if 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.’” Greek v.

Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (citing Burgess, 537 F.3d

at 128; 20 C.F.R. § 404.1527(c)(2)).1

1 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. In this action, because Plaintiff’s

application for disability and disability insurance benefits was filed on

July 26, 2016, before regulatory amendments were enacted on March 27, 2017,

the recent changes reflected in C.F.R. § 404.1520c do not apply, and under

C.F.R. § 404.1527(a)(2)(c), the treating source’s opinion is generally

assigned added or controlling weight, absent substantial contrary evidence.

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

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); but see Atwater v.

Astrue, 512 F. App’x 67, 70 (2d Cir. 2013) (“We require no such

slavish recitation of each and every factor where the ALJ’s

reasoning and adherence to the regulation are clear.”). “The ALJ

must then ‘comprehensively set forth [her] 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).

Furthermore, “a treating physician’s conclusion that a

claimant is disabled is not entitled to controlling weight, as

this determination is reserved to the Commissioner.” Quiles v.

Saul, No. 19-cv-11181(KNF), 2021 WL 848197, at 9 (S.D.N.Y. Mar. 5,

2021); see 20 C.F.R. § 404.1527(d)(1). “[W]hen an ALJ discounts

a treating physician’s opinion that a claimant is disabled, the

ALJ is obligated to give good reasons for doing so.” (Id.)

Additionally, though “[t]he standards for disability

under worker’s compensation programs are entirely distinguishable

from those for Social Security disability insurance benefits,”

Naumov v. Comm’r of Soc. Sec., 539 F. Supp. 3d 273, 275 (E.D.N.Y.

2021), an ALJ can consider and afford some weight to the

determination of another governmental agency, Cutler v.

Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975).

Plaintiff contends that the ALJ did not properly apply

the treating physician rule in assessing the opinions of

Plaintiff’s treating physician, Dr. Bhargava, and treating

neurologist, Dr. Nangla. (Pl. Mem. at 9-10.) The Court discusses

each of their opinions in turn.

a. ALJ Iwuamadi’s Assessment of Dr. Bhargava’s Opinion

The Court finds that ALJ Iwuamadi lacked sufficient

reasons in assigning “little weight” to Dr. Bhargava’s August 2016

medical report of Plaintiff’s treating physician, Dr. Bhargava.

(Tr. at 17.) According to the Dr. Bhargava’s report, Plaintiff

was diagnosed with chronic “back pain without radiation” which

prevented her from lifting any weight at all, standing or walking

for more than two hours in a workday, as well as providing

limitations with regards to bending, lifting, stooping, pushing,

pulling, climbing, and sitting. (Tr. at 17, 698-703.) The report

also stated that “[p]ain was at a level of 10, and not relived by

over the counter medications.” (Id.) ALJ Iwuamadi afforded this

report little weight finding it was “inconsistent, not supported

by any objective evidence or physical examination results, and not

supported by the medical record.” (Id. at 17.) Specifically, the

ALJ took note of the lack of MRI’s or X-Rays in the record which

could confirm or rule out a severe impairment of the spine. (Id.)

The presence of positive EMG testing in the medical record was

discounted by the ALJ in light of Plaintiff “treat[ing] her pain

conservatively by taking Motrin daily,” her inability to recall

the last time she attended physical therapy, and the fact that

“she last opted for injections in response to pain in 2017.” (Id.

18.) Additionally, the ALJ noted that “the amount of sitting that

the claimant could perform was not defined” in the report “and

other limitations were not specified.” (Id.)

ALJ Iwuamadi failed to provide sufficiently “good”

reasons for not affording Dr. Bhargava’s opinion controlling

weight. Burgess, 537 F.3d at 129-130 (“Failure to provide such

‘good reasons’ for not crediting the opinion of a claimant’s

treating physician is a ground for remand.”). The ALJ appears to

cite Plaintiff’s conservative pain treatment regimen, namely daily

Motrin and no injections in response to pain since 2017, as

examples of how Dr. Bhargava’s findings are inconsistent with the

medical record. (Tr. at 17.) The ALJ should not afford less

weight to the opinion of a treating physician solely because of a

conservative treatment regimen. Burgess, 537 F.3d at 129, (“Nor

is the opinion of the treating physician to be discounted merely

because he has recommended a conservative treatment regimen.”)

Accordingly, Plaintiff’s use of Motrin to treat her pain alone is

not sufficient evidence in support of rejecting a disability

determination. (Id. (“The fact that a patient takes only over-

the-counter medicine to alleviate her pain may, however, help to

support the Commissioner’s conclusion that the claimant is not

disabled if that fact is accompanied by other substantial evidence

in the record, such as the opinions of other examining physicians

and a negative MRI.”)(citation omitted)(emphasis added)).

The ALJ notes that “there is positive EMG testing in the

record” but that “[t]here are no x-rays or MRIs in the record to

confirm a severe impairment in [Plaintiff’s] spine.” (Tr. at 17.)

The EMG testing the ALJ refers to, which occurred on April 27,

2016, showed evidence of left L5 radiculopathy2. (Tr. at 18, 815.)

The ALJ also notes that a head scan CT taken on December 11, 2015

showed “calcification of bilateral basal ganglia,” and “white

matter” in the left side of the Plaintiff’s brain, but does not

2 The Court takes judicial notice that, “L5 radiculopathy is usually

associated with numbness down the side of the leg and into the top of the

foot.” MAYO CLINIC HEALTH SYSTEM, Sciatica and radiculopathy: Peculiar names for

shooting back, leg pain, July 9, 2021,

https://www.mayoclinichealthsystem.org/hometown-health/speaking-of-

health/sciatica-and-radiculopathy-peculiar-names.

provide more significance of these findings. (Id.) Before

rendering her decision, the ALJ noted that she rejected Plaintiff’s

request for a physical consultative examination and instead found

“that the medical record is complete.” (Id. at 14.) Thus, the

ALJ referred to no other evidence, much less substantial evidence,

in the record to support the ALJ’s finding that Dr. Bhargava’s

opinion was entitled to lesser weight.

Here, because the ALJ did not apply the treating

physician rule properly, remand is appropriate. See Kennedy v.

Astrue, 343 F. App’x 719, 721 (2d Cir. 2009) (summary order)

(“Where an ALJ fails properly to acknowledge [the treating

physician rule] or to provide ‘good reasons’ for the weight given

to the treating physician’s opinion, we do not hesitate to

remand.”) (citation omitted)). On remand, the ALJ is directed to

either re-weigh Dr. Bhargava’s opinion or further develop the

record and articulate reasons for affording his opinion “little

weight.”

b. ALJ Iwuamadi’s Assessment of Dr. Nangla’s Opinion

The ALJ also unreasonably afforded no weight to both of

Dr. Nangla’s reports in the ALJ’s determination of Plaintiff’s

RFC. (Tr. at 17-18.) The Court will address each report

independently. The first report, dated June 17, 2016, by Dr.

Nangla, which he drafted along with Drs. Krishan and Jain,

diagnosed Plaintiff with “posttraumatic concussion, cervical

sprain/strain, lumbar posttraumatic strain/sprain, and bilateral

shoulder derangement.” (Id. at 17, 681.) These conditions cause

symptoms of numbness and tingling in the right arm and leg, and

bilateral shoulder pain, which was aggravated by prolonged

sitting, pushing, bending, and pulling. (Id. at 17, 680-681.)

Additionally, Plaintiff suffered from “cervical and lumbar range

of motion restrictions.” (Id. at 17, 680.) According to Dr.

Nangla and his team, Plaintiff’s pain was relieved by rest and

medication. (Id.) Dr. Nangla’s opinion at this time was that

Plaintiff was “one hundred percent tempora[rily] disab[led].”

(Id.) The ALJ afforded this opinion no weight because it was

offered for Workers’ Compensation purposes and thus “does not

correspond to an evaluation of ‘disability’ under Social Security

Law and Regulations.” (Id. at 17.)

The ALJ erred in affording the medical report no weight

solely because it was created for workers compensation purposes.

She correctly recognized that workers compensation programs and

the Social Security Disability Insurance Benefits program use

distinct standards and thus a finding of disability made for

workers compensation purposes is not binding on her. Naumov, 539

F. Supp. 3d at 275 (“The standards for disability under workers’

compensation programs are entirely distinguishable from those for

Social Security disability insurance benefits.”) The ultimate

determination of disability is one reserved for the Commissioner.

20 C.F.R. § 404.1527(d). The ALJ, however, erred by dismissing

the entirety of the report on the basis of a workers’ compensation

report, because, while not binding, the decisions of other

governmental agencies with respect to disabilities can be

considered by an ALJ. Cutler, 516 F.2d at 1286 (“While the

determination of another governmental agency that a social

security disability benefits claimant is disabled is not binding

on the Secretary, it is entitled to some weight and should be

considered.”) Additionally, the ALJ erred by ignoring the opinion

of a treating physician without explicitly considering any of the

Burgess factors, (Tr. at 17-18), including: (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 medical evidence; and (4) whether the physician

is a specialist. Estrella, 925 F.3d at 95‒96 ((citation omitted);

see 20 C.F.R. § 404.1527(c)(2). Although it is not necessary for

an ALJ to articulate each Burgess factor explicitly, it must be

clear that the ALJ did consider them. Atwater, 512 F. App’x at 70

(“We require no such slavish recitation of each and every factor

where the ALJ’s reasoning and adherence to the regulation are

clear.”)

In the second report authored by Dr. Nangla and his team

in June of 2016, Plaintiff’s diagnosis remained the same, however

her pain was described as “intermittent” in the neck and back and

was “aggravated only by prolonged sitting, pushing, bending and

pulling.” (Tr at 18.) Dr. Nangla further clarified the range of

motion restrictions from his previous report, be specifying that

Plaintiff’s “[c]ervical flexion was limited to 50 degrees, [and]

lumbar flexion was [limited] to 75 degrees . . . .” (Id.) The

report reaffirmed that pain and limited range of motion were only

alleviated by rest and medication. (Id.) Again, ALJ Iwuamadi

afforded this opinion because it was made for workers’ compensation

purposes. (Id.) The ALJ also cited inconsistencies with the rest

of the record, a lack of MRI’s or X-rays to confirm an impairment

of the spine, and Plaintiff’s own testimony that she conservatively

treated pain with Motrin daily as additional reasons for discarding

the opinion. (Id.)

The ALJ’s reasoning for dismissing this second report

from Plaintiff’s treating physician suffers from the same

infirmities because she fails to provide sufficiently “good”

reasons for not affording Dr. Nangla’s opinion controlling weight.

Burgess 537 F.3d at 129-130. The ALJ’s initial determination that

the report should be disregarded entirely because it was made for

the purposes of workers compensation does not stand because the

decisions of other governmental organizations should be given some

weight despite using entirely different standards. See Cutler,

516 F.2d at 1286. The ALJ’s additional reasons do little to offset

this error; the ALJ again attempts to cite Plaintiff’s conservative

pain treatment as evidence of inconsistency with the report. (Tr.

at 18). As this Court previously determined in regard to Dr.

Bhargava’s report, a conservative treatment regimen alone is not

a sufficiently “good” reason for dismissing the opinion of a

treating physician without other substantial evidence from the

record. Burgess, 537 F.3d at 129. Just as the ALJ did with

respect to Dr. Bhargava’s report, the ALJ noted the presence of

“positive EMG testing in the record” and a lack of “x-rays or MRI’s

in the record to confirm a severe impairment in [Plaintiff’s]

spine.” (Tr. at 17.) Thus, the ALJ cites to nothing within the

record which demonstrates inconsistency between Dr. Nangla’s

opinion and the conservative pain treatment regimen that the

Plaintiff was on.

Remand is appropriate on these grounds because the ALJ

again did not properly apply the treating physician rule nor

provide sufficiently “good” reasons for dismissing both of Dr.

Nangla’s reports. See Kennedy, 343 F. App’x at 721. (summary

order). On remand, the ALJ is directed to re-weigh the reports of

Plaintiff’s treating physicians and to comprehensively address the

Burgess factors if the ALJ concludes the treating physician’s

opinions deserves less than controlling weight.

III. ALJ Iwuamadi Failed to Support RFC With Substantial Evidence

The Court finds that the ALJ erred in determining

Plaintiff’s RFC without further developing the record to include

medical opinions from Plaintiff’s treating physicians and

obtaining other medical consultations. See Matta v. Astrue, 508

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

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

that [is] consistent with the record as a whole.”) In addition to

following the treating physician rule, the ALJ’s RFC determination

must be 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).

Furthermore, medical records, Plaintiff’s own testimony

as to her RFC, or the testimony of a vocational expert 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). A

treating physician’s statement that a claimant is disabled is not

determinative because it is the ALJ who is tasked with reaching an

RFC assessment based on the record as a whole. See Snell v.

Apfel, 177 F.3d 128, 133 (2d Cir. 1999). But “because an RFC

determination is a medical determination, an ALJ who makes an RFC

determination in the absence of a supporting expert medical opinion

has improperly substituted his own opinion for that of a physician,

and has committed legal error.” Jackson v. Berryhill, No. 18-CV-

04569, 2019 WL 4593648, at 8 (S.D.N.Y. Sept. 23, 2019).

Additionally, “where there are deficiencies in the

record, an ALJ is under an affirmative obligation to develop a

claimant’s medical history.” Rosa v. Callahan, 168 F.3d 72, 79

(2d Cir. 1999). The ALJ can be required to go so far as to “pay

for a consultative examination where necessary to ensure a

developed record.” Burger v. Astrue, 282 F. App’x 883, 885 (2d

Cir. 2008). See 20 C.F.R. § 404.1512(d)-(f)

Plaintiff asserts and Defendant disputes that the ALJ,

after failing to afford controlling weight to either of the reports

and opinions of treating physicians, failed in her obligation to

develop the record by seeking clarification and additional

evidence from the treating physician or ordering a consultative

medical examination. (Pl. Mem. at 11). Instead, Plaintiff argues

that the ALJ’s determination was “grounded solely in [her] lay

assessment of Plaintiff’s RFC. (Id.) The Court agrees that the

ALJ failed to develop the record.

a. ALJ Iwuamadi’s RFC Determination Was Not Supported by a

Medical Opinion

The ALJ’s RFC determination was not supported by a

medical opinion. The ALJ found the opinions of Dr. Bhargava, Dr.

Nangla, and Dr. Mollins unpersuasive, (Tr. at 17-18), and afforded

“little weight” to Dr. Bhargava’s medical report. (Id. at 17).

She opined that Dr. Bhargava’s findings that Plaintiff could not

lift any weight, could not stand or walk for more than two hours

in a workday, had limitations sitting, pushing and pulling, as

well as other “unspecified postural limitations,” were

“inconsistent, not supported by any objective evidence or physical

examination results, and not supported by the medical record.

(Id.) The ALJ particularly noted the lack of x-rays or MRI’s in

the record to support a severe impairment of the spine, the ill-

defined nature of the limitations Dr. Bhargava identified, and

Plaintiff’s conservative treatment regimen. (Id. at 17-18.)

For the reasons detailed above, the ALJ afforded no

weight to the two reports provided by Dr. Nangla and his team Drs.

Krishan and Jain regarding Plaintiff’s RFC, because the reports

were offered for Workers’ Compensation purposes. (Id.) The ALJ

also gave limited weight to the treating chiropractor, Dr. Mollins’

opinion. (Id.) Dr. Mollins claimed that Plaintiff was “unable to

work based on her injuries.” (Id.) Here, the ALJ again noted the

lack of MRI’s or x-rays in the record and Plaintiff’s conservative

treatment regimen.

After dismissing or otherwise affording “little weight”

to all of the medical opinions in the record, the ALJ acknowledged

that although Plaintiff’s “medically determinable impairments

could reasonably be expected to cause the alleged symptoms . . .

the [Plaintiff’s] statements concerning the intensity, persistence

and limiting effects of these symptoms are not entirely consistent

with the medical evidence and other evidence in the record.” (Id.

at 19.) Specifically, the ALJ stated that Plaintiff “is receiving

very little in the way of ongoing medical treatment,” “had not had

MRI scans or X-rays that would confirm more severe medical

problems,” and ultimately decided that “[t]he diagnosed conditions

established for [Plaintiff] would cause certain physical

restrictions, but would not prevent her from performing a wide

range of light exertional work.” (Id.)

Though the ALJ cites several different portions of the

medical record to support her RFC determination, she errs in

failing to affirmatively consider and cite to any of the medical

opinions entered into the record. Pearson, No. 20-cv-3030(AMD),

2021 WL 3373132, at 4. In citing to various portions of the

medical record to disprove several properly submitted medical

opinions stating that Plaintiff is disabled, the ALJ has instead

substituted her own opinion on the medical evidence for that of

the physicians. Jackson, No. 18-CV-04569, 2019 WL 4593648, at 8;

Dennis v. Colvin, 195 F. Supp. 3d 469 (W.D.N.Y. 2016) (internal

citation omitted) (remanding because “an ALJ is not qualified to

assess a claimant's RFC on the basis of bare medical findings, and

as a result an ALJ's determination of RFC without a medical

advisor's assessment is not supported by substantial evidence.”);

see also Shaw v. Chater, 221 F.3d 126, 134–35 (2d Cir. 2000)

(“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.”) The ALJ committed legal error because an

RFC, though ultimately determined by the Commissioner, is a medical

determination and as such must be supported by at least some part

of a properly submitted medical opinion. (Id.)

b. ALJ Iwuamadi Failed to Sufficiently Develop the Record When

Confronted with Deficiencies in the Medical Opinions

The ALJ, when confronted with several allegedly

deficient medical opinions which she found were entitled to “little

weight,” failed to sufficiently develop the record to make a

determination of Plaintiff’s RFC that was supported by substantial

evidence. It is well-established that even if a Plaintiff is

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

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

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

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

has an independent duty to develop the record).

In remanding the earlier decision rendered by ALJ

Friedman, the Appeals Council listed issues that ALJ Iwuamadi was

to consider. (Tr. at 81.) Specifically, the Appeals Council

directed ALJ Iwuamadi to “[o]btain additional evidence concerning

the claimant’s cervical derangement and lumbar derangement” and

specified that such additional evidence may include “a

consultative internal medicine examination and medical source

opinions.” (Id.) The Appeals Council also specified that the ALJ

“may request the treating source to provide additional evidence

and/or further clarification of the opinion and medical source

statements . . . .” (Id.) Before rendering her decision, the ALJ

conducted a telephone hearing where she heard from Plaintiff and

a vocational expert, attempted to subpoena evidence from Dr.

Deitrich Holtkamp to no avail, and entered unsuccessful requests

for additional medical records into evidence. (Id. at 13-14.)

Plaintiff’s representative requested a physical consultative

examination, however the ALJ found that the examination was

unnecessary and rendered her decision. (Id. at 14, 861.) After

failing to develop the record, the ALJ’s decision identified

several deficiencies in the record, such as a lack of MRI imaging

or X-rays, and ill-defined limitations specified by Dr. Bhargava

as reasons for her RFC determination. (Id. at 17-19.)

This was an error on the part of the ALJ because “where

there are deficiencies in the record, an ALJ is under an

affirmative obligation to develop a claimant’s medical history.”

Rosa, 168 F.3d at 79; see also, e.g., Nusraty v. Colvin, 15-cv-

2018 (MKB), 2016 WL 5477588, at *13 (E.D.N.Y. Sept. 29, 2016)

(finding that the ALJ had an “affirmative duty” to develop the

record and “should have followed up with [the treating physicians]

to request supporting documentation or to obtain additional

explanations for [their] findings”). The ALJ recognized a lack of

MRI or X-ray imaging to confirm a severe impairment of the spine

as deficiencies in the record which she used to justify affording

less weight to the medical opinions of two separate physicians.

(Tr. at 18-19.) She could have remedied this deficiency by

ordering Plaintiff to receive a consultative examination, as was

suggested by Plaintiff’s representative. (Id. at 14, 861.) The

ALJ was “required to exercise [her] independent duty to develop

the record and, at a minimum, secure a consulting physician to

examine Plaintiff and render an opinion as to her functional

limitations”. Williams v. Comm’r of Soc. Sec. 366 F. Supp. 3d

411, 415-18 (W.D.N.Y. 2019); see also Burger, 282 F. App'x at 885;

20 C.F.R. § 404.1512(d)-(f).

On remand, the ALJ should seek clarification from

Plaintiff’s treating physicians so that their opinions may be

afforded proper weight and the ALJ should attempt to secure a

consultative examination of Plaintiff for the purposes of

determining whether or not Plaintiff’s disabled due to a severe

impairment of her spine.

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 respectfully directed to enter judgment

remanding this case, and to close the case.

SO ORDERED.

DATED: April 9, 2022

Brooklyn, New York b “9 ae

. . uw br

HON. WrYO A. MATSUMOTO

United States District Judge

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