Hahn v. Saul

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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

TIFFANY A. HAHN,

Plaintiff,

MEMORANDUM AND ORDER

v.

20-CV-06124 (KAM)

ANDREW SAUL,

COMMISSIONER OF SOCIAL SECURITY,

Defendant

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

Plaintiff Tiffany A. Hahn (“Plaintiff”) appeals the

final decision of the Commissioner of the Social Security

Administration (“Commissioner”), which found that Plaintiff was

not disabled within the meaning of the Social Security Act (“Act”)

and not entitled to disability insurance benefits under Title II

of the Act. Presently before the Court are Plaintiff’s motion for

judgment on the pleadings and the Commissioner’s cross-motion for

judgment on the pleadings. For the reasons set forth below,

Plaintiff’s motion is GRANTED. The Commissioner’s cross-motion is

DENIED. The case is REMANDED for further proceedings consistent

with this Memorandum and Order.

BACKGROUND

The parties have filed a joint statement of stipulated

facts detailing Plaintiff’s medical history and administrative

hearing testimony, which the Court has reviewed and incorporates

by reference. The Court briefly recounts the facts relevant to

the instant motions. (ECF No. 14-2, Joint Stipulation of Facts

(“Stip.”).)

On March 20, 2019, Plaintiff filed an application for

disability insurance benefits, alleging disability since July 19,

2016, when Plaintiff was 28 years old. (ECF No. 17, Administrative

Transcript (“Tr.”), at 13, 53, 172.) Plaintiff claimed that she

was disabled due to lumbar radiculopathy and spinal fusion. (Id.

at 53.) The alleged disability was the result of Plaintiff’s work

as a corrections officer: Plaintiff was assaulted by a prisoner

and suffered a back injury. (Stip. at 3; Tr. at 295.)

Plaintiff’s application was denied on July 10, 2019.

(Tr. at 60-61.) On January 10, 2020, Plaintiff requested a hearing

before an administrative law judge. (Id. at 101-02.) The hearing

took place on May 27, 2020, in front of Administrate Law Judge

Sandra McKenna (the “ALJ”). (Id. at 30.) Due to the COVID-19

pandemic, the hearing took place virtually. (Id. at 32.)

On July 14, 2020, the ALJ determined that Plaintiff was

not disabled under the Act because she retained the residual

functional capacity (“RFC”) to perform sedentary jobs that existed

in significant numbers in the national economy. (Id. at 1, 10.)

On July 16, 2020, Plaintiff appealed the ruling of the ALJ to the

Appeals Council. (Id. at 5.) On October 30, 2020, the Appeals

Council denied review of the ALJ’s decision, rendering it the final

decision of the Commissioner. (Id. at 1.) This appeal followed.

LEGAL STANDARD

I. Standard of Review

An unsuccessful claimant for disability benefits under

the Act may bring an action in federal court seeking judicial

review of the Commissioner’s denial of his or her benefits. 42

U.S.C. §§ 405(g), 1383(c)(3). “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) (quotations 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.” Halloron

v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v.

Perales, 420 U.S. 389, 401 (1971)). Inquiry into legal error

requires courts 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; second

alteration in original). 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).

II. Determination of Disability

A claimant must be “disabled” within the meaning of the

Act to receive disability benefits. See 42 U.S.C. §§ 423(a), (d).

A claimant is disabled when he or 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.” 42 U.S.C. §

423(d)(1)(A). The impairment must be of “such severity” that the

claimant is unable to do his or her previous work or engage in

other substantial gainful work. § 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)).

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. 20 C.F.R. § 404.1520. This process can be summarized

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 any such impairment would

be of sufficient severity to establish eligibility for Social

Security benefits. 20 C.F.R. § 404.1523(c). Further, if the

Commissioner does find a combination of impairments, the combined

impact of the impairments, including those that are not severe (as

defined by the regulations), will be considered in the

determination process. 20 C.F.R. § 416.945(a)(2). At steps one

through four of the sequential five-step framework, the claimant

bears the “general burden of proving . . . disability.” Burgess,

537 F.3d at 128. At step five, the burden shifts from the claimant

to the Commissioner, requiring the Commissioner to 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).

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 . . . 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,” 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

Using the five-step sequential process described above,

the ALJ determined at step one that Plaintiff had not engaged in

substantial gainful activity since July 19, 2016, the alleged onset

date of Plaintiff’s disability. (ECF No. 17, Tr. at 15.) Although

Plaintiff received some income after the onset date, such income

“reflect[ed] payments for personal, sick, and vacation time, as

well as other non work related payments.” (Id.) Therefore, the

ALJ found that Plaintiff had not engaged in substantial gainful

activity since the alleged onset date. (Id.)

At step two, the ALJ determined that Plaintiff suffered

from the following severe impairment: “lumbar disc herniation,

status post surgeries.” (Id.) The ALJ also noted that the record

reflected right hip bursitis, but found the condition to be non-

severe given the duration of the condition and responsiveness to

treatment. (Id. at 16.)

At step three, the ALJ determined that Plaintiff did not

have an impairment or combination of impairments that equaled the

severity of one of the listed impairments in 20 CFR Part 404,

Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

(Id.) Specifically, the ALJ found that Plaintiff’s impairments

did not meet the criteria under Listing 1.04 for spine related

disorders, given that there was little to no evidence of

significant nerve root compression, neuroanatomical distribution

of pain, motor weakness, reflex or sensor loss, and positive

straight leg raising in the supine and sitting positions. (Id.)

Regarding Plaintiff’s RFC, the ALJ determined that

Plaintiff had the RFC to perform sedentary work1, but that she

could occasionally climb ramps and stairs, occasionally balance

and stoop, never climb ladders, ropes or scaffolds, never kneel,

crouch or crawl, and never work at unprotected heights or with

moving mechanical parts. (Id.) In determining Plaintiff’s RFC,

the ALJ considered medical opinions and evidence in the record.

(Id. at 16–23.)

At steps four and five, the ALJ found that Plaintiff was

capable of performing past relevant work as an optometry

technician. (Id. at 23.) Plaintiff previously worked as an

optometry technician between 2009 and 2013. (Id.) In making this

determination, the ALJ relied upon the testimony of vocational

expert Linda Stein. (Id.) The ALJ found that work as an optometry

technician did not require engaging in work-related activities

precluded by Plaintiff’s RFC. (Id.)

1 “Sedentary work involves lifting no more than 10 pounds at a time and

occasionally lifting or carrying articles like docket files, ledgers and small

tools. Although a sedentary job is defined as one which involves sitting, a

certain amount of walking and standing is often necessary in carrying out job

duties. Jobs are sedentary if walking and standing are required occasionally

and other sedentary criteria are met.” 20 CFR § 404.1567(a).

Accordingly, the ALJ found that Plaintiff was not

“disabled” under the meaning of the Act and not entitled to

disability benefits. (Id.)

II. Assessment of Medical Evidence

The parties dispute whether the ALJ properly evaluated

the medical opinion evidence in the record.

A. Regulations Regarding Evaluation of Medical Opinion

Evidence

In 2017, the Social Security Administration (“SSA”)

adopted new regulations, effective March 27, 2017, revising the

standard for evaluating medical opinion evidence and effectively

abolishing the prior “treating physician rule.” See 20 C.F.R. §

404.1520c. Because Plaintiff filed her claim on March 20, 2019,

the new regulations apply. Under the new regulations, the

Commissioner no longer “defer[s]” or gives “controlling weight” to

a claimant’s treating medical sources. § 404.1520c(a). Instead,

when evaluating the persuasiveness of medical opinions, the

Commissioner will consider the following five factors: (1)

supportability; (2) consistency; (3) relationship of the sources

with the claimant (including length of the treatment relationship,

frequency of examination, purpose of the treatment relationship,

extent of the treatment relationship, and whether the relationship

is an examining relationship); (4) the medical sources’

specialization; and (5) other factors, including but not limited

to “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.” §§

404.1520c(c), § 416.920c(c). The ALJ must explain how he or she

considered the supportability and consistency factors in

evaluating the persuasiveness of a medical opinion. §§

404.1520c(a), (b)(2).

B. The ALJ’s Assessment

Plaintiff contends that the ALJ failed to consider all

of the medical evidence in the record because Dr. Goldstein’s

assessment of Plaintiff’s injury was not discussed or mentioned by

the ALJ. (ECF No. 14-1, Plaintiff’s Memorandum of Law (“Pl. Mem.”)

at 11.) Plaintiff asserts that the ALJ entirely failed to discuss

Dr. Goldstein’s assessment even though Dr. Goldstein treated

Plaintiff regularly for over a year and his findings were

consistent with other medical sources’ findings. (Id. at 11-12.)

Plaintiff also contends that the ALJ failed to properly evaluate

the five factors set forth in 20 C.F.R. § 404.1520(c) for the

medical source assessments that were discussed in the ALJ’s

opinion. (Id. at 12-13.) Plaintiff argues that the ALJ improperly

dismissed the assessments of Dr. Checo, Dr. Koutsoumbelis, Dr.

Zitner, and PA Finn. Plaintiff contends that the ALJ did not

properly address the supportability and consistency of their

assessments, as required by the new SSA regulations, because the

ALJ merely stated that their medical assessments were made in the

context of workers’ compensation claims and, thus, were not

persuasive. (Id. at 15; Tr. at 16-22.)

This Court agrees with Plaintiff’s contentions regarding

the ALJ’s assessment of medical evidence. First, as to Dr.

Goldstein, an ALJ is required to consider all of the medical

opinion evidence in the record. § 404.1520(c)(b) (“We will

articulate in our determination or decision how persuasive we find

all of the medical opinions and all of the prior administrative

medical findings in your case record.” (emphasis added)); see

Delgadillo v. Comm’r of Soc. Sec. Admin., No. 22-cv-00106 (PHX)

(MTL), 2022 WL 17038552, at *3 (D. Ariz. Nov. 17, 2022) (“Under

the revised rules, all evidence an ALJ receives is considered.”).

The ALJ did not consider all the medical opinion evidence because

the ALJ did not discuss or mention Dr. Goldstein’s assessment.

Additionally, by failing to discuss Dr. Goldstein’s assessment at

all, the ALJ necessarily failed to discuss whether the assessment

was supported by and consistent with other medical evidence in the

record, as required by § 404.1520(c)(b)(2). This failure alone

suffices as grounds for remand. Keeby o/b/o T.K. v. Comm’r of

Soc. Sec., No. 21-cv-1202 (PKC), 2022 WL 4451004, at *4 (E.D.N.Y.

Sept. 23, 2022) (“[T]he ALJ’s failure to sufficiently explain how

he evaluated the medical opinions in the record warrants remand.”);

Prieto v. Comm’r of Soc. Sec., No. 20-cv-3941 (RWL), 2021 WL

3475625, at *9 (S.D.N.Y. Aug. 6, 2021) (“[A]n ALJ’s failure to

properly consider and apply the requisite factors is grounds for

remand.” (internal quotation marks, citation, and alteration

omitted)).

The Commissioner argues that because Dr. Goldstein was

in the same practice as Dr. Checo, and because the ALJ discussed

Dr. Checo’s assessments, the ALJ was not required to consider Dr.

Goldstein’s opinions. (ECF No. 15-1, Defendant’s Memorandum of

Law (“Def. Mem.”) at 11-12.) The Court is not persuaded and finds

that the ALJ should have considered Dr. Goldstein’s assessments.

Dr. Goldstein examined and treated Plaintiff during ten office

visits between April 2017 and May 2018, and made findings as to

Plaintiff’s physical pain and its impact on her daily activities.

(ECF No. 14-1, Pl. Mem. at 11.) Defendant provides no case law to

support the assertion that Dr. Goldstein’s assessment did not need

to be discussed despite Dr. Goldstein’s examination and treatment

visits with Plaintiff and the regulations stating that all medical

opinions in the record will be considered, simply because Dr.

Goldstein practiced in the same medical office as Dr. Checo. It

is true that under the new SSA regulations, § 404.1520c(b)(1)

states that “when a medical source provides multiple medical

opinion[s],” an ALJ is “not required to articulate how [the ALJ]

considered each medical opinion . . . from one medical source

individually.” But Defendant provides no support for its

contention that a single “medical source” therefore may encompass

opinions from different individual medical doctors. Indeed, other

regulations clarify that a “medical source” is an individual

medical expert. See § 404.1520c(c)(1) (“The more relevant the

objective medical evidence and supporting explanations presented

by a medical source are to support his or her medical opinion

. . . the more persuasive the medical opinions . . . will be.”

(emphasis added); § 404.1520c(c)(5) (“[W]e will also consider

whether new evidence we receive after the medical source made his

or her medical opinion makes the medical opinion . . . less

persuasive.” (emphasis added)); see also Prieto, 2021 WL 3475625,

at *9 n.5 (“[T]he ALJ now must analyze opinions at the source-

level, rather than separately analyze multiple opinions of the

same source presented in the record . . . That means that the ALJ

will articulate how he considered the medical opinions from a

medical source together in a single analysis.” (alteration,

citation, and internal quotation marks omitted)). Accordingly,

the Court finds that the ALJ’s failure to address Dr. Goldstein’s

assessment warrants remand.

Second, the Court finds that the ALJ’s RFC determination

was not supported by substantial evidence. “Substantial evidence

is more than a mere scintilla,” and must be relevant evidence that

a “reasonable mind might accept as adequate to support a

conclusion.” Halloran, 362 F.3d 28, 31 (2d Cir. 2004) (internal

quotation marks and citation omitted). If there is substantial

evidence in the record to support the Commissioner’s findings,

those findings must be upheld. 42 U.S.C. § 405(g).

Medical records alone cannot provide substantial

evidence for an RFC determination; rather, an “ALJ’s RFC

determination must be supported by a medical opinion in the record

at that time.” Pearson v. Comm’r of Soc. Sec., No. 20-cv-

3030(AMD), 2021 WL 3373132, at *4 (E.D.N.Y. Aug. 3, 2021) (emphasis

added). Here, the ALJ evaluated the opinions of Dr. Checo,

Plaintiff’s treating orthopedic surgeon; Dr. Koutsoumbelis,

Plaintiff’s second treating orthopedic surgeon; Dr. Zitner,

Plaintiff’s third treating orthopedic surgeon; PA Finn, an

assistant to Dr. Zitner; Dr. Lee, Plaintiff’s treating pain

management doctor; Dr. Rosenberg, an orthopedic surgeon who

performed three medical examinations for Plaintiff’s workers’

compensation claims; Dr. Totero, who performed one medical

examination for Plaintiff’s workers’ compensation claim; Dr. Asad,

a consultative examiner; and Dr. Li and Dr. Marasigan, non-

examining consultants. (ECF No. 17, Tr. at 16–23.) Dr. Checo and

Dr. Kousoumbalis, treating orthopedic surgeons, both found that

Plaintiff was totally disabled. (Id. at 17, 19-20.)

The ALJ found that none of medical opinions were fully

persuasive, except for Dr. Asad’s. The ALJ dismissed the seven

examining medical opinions as not persuasive or only somewhat

persuasive for a combination of the following reasons: (1) the

opinions included “determinations regarding [Plaintiff’s] ability

to work” that are “reserved to the Commissioner” to make; (2) the

opinions were “provided for workers’ compensations purposes,”

which has a different standard of review than SSA disability

benefits; and (3) the opinions were not supported by the record or

consistent with other opinions, specifically Dr. Asad’s. (Id. at

16-23.) The ALJ particularly rejected the findings of treating

physicians Dr. Checo and Dr. Kousoumbalis that Plaintiff was

totally disabled, and the findings of Dr. Rosenberg, Dr. Lee, Dr.

Koutsoumbalis, Dr. Zitner, and PA Finn that Plaintiff could not

perform sedentary work or would have significant difficulty doing

so, merely stating for each finding that it was “inconsistent with

other opinions, including the opinion of Dr. Asad.” (Id. at 19.)

The ALJ erred in affording no weight to medical sources

that issued a finding on disability for workers’ compensation

purposes. The ALJ correctly recognized that workers’ compensation

programs and SSA disability benefits programs use distinct

standards and thus a finding of disability made for workers’

compensation purposes is not binding for SSA purposes. See Naumov

v. Comm’r of Soc. Sec., 539 F. Supp. 3d 273, 275 (E.D.N.Y. 2021)

(“The standards for disability under workers’ compensation

programs are entirely distinguishable from those for Social

Security disability insurance benefits.”). As the ALJ repeatedly

stated, the ultimate determination of disability is one reserved

for the Commissioner. 20 C.F.R. § 404.1527(d). The ALJ, however,

erred where she found the medical findings on disability to be

unpersuasive solely because the findings were made in the workers’

compensation context because, “while not binding, the decisions of

other governmental agencies with respect to disabilities can be

considered by an ALJ.” Tention v. Comm'r of Soc. Sec., No. 21-

cv-04659 (KAM), 2023 WL 2868295, at *6 (E.D.N.Y. Apr. 9, 2023);

Rivera v. Colvin, 592 F. App’x 32, 33 (2d Cir. 2015) (summary

order) (noting that although disability determinations by other

governmental agencies are not binding, they “are entitled to some

weight and should be considered”); see also Cutler v. Weinberger,

516 F.2d 1282, 1286 (2d Cir. 1975) (“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.”). It does

not appear that the ALJ gave any weight to the disability findings

of the medical providers.

Further, as noted above, the ALJ found only consulting

examiner Dr. Asad’s opinion to be fully persuasive. (ECF No. 17,

Tr. at 20.) The ALJ referred to Dr. Asad’s observation that

Plaintiff had “marked limitations for squatting, kneeling,

bending, walking, and standing for long periods of time, and marked

limitations for lifting, carrying, pushing, and pulling heavy

objects,” but no limitations for sitting. (Id. at 18, 20.) The

ALJ found that Dr. Asad’s assessment supported an RFC whereby

Plaintiff could perform a range of sedentary work, in contravention

of the findings of Dr. Rosenberg, Dr. Lee, Dr. Koutsoumbalis, Dr.

Zitner, and PA Finn. (Id. at 20.) The ALJ stated that Dr. Asad’s

opinion was persuasive because “the opinion [was] generally

supported by the examination findings and the medical record as a

whole,” but the ALJ did not specify which other portions of the

medical record. (Id.)

The ALJ could only find that Dr. Asad’s opinion was

supported by and consistent with the record as a whole because the

ALJ dismissed five medical sources’ opinions — each finding that

Plaintiff had greater limitations than Dr. Asad’s opinion — as

inconsistent with Dr. Asad’s assessment. “An ALJ may not ‘cherry-

pick’ medical opinions, or selectively cite treating notes or

diagnostic imaging that support the ALJ’s own view while ignoring

opinions and evidence that do not.” Jones v. Saul, No. 19-cv-5542

(LGS)(BCM), 2020 WL 5775525, at *12 (S.D.N.Y. Sept. 11, 2020),

report and recommendation adopted, 2020 WL 5775195 (S.D.N.Y. Sept.

28, 2020). Yet, here, the ALJ repeatedly highlighted Dr. Asad’s

assessment to find that at least five other contrary medical source

opinions, including by Plaintiff’s long-term treating physicians,

were unpersuasive or only somewhat persuasive, even though all

five medical source opinions were consistent with each other

regarding the fact that Plaintiff had greater limitations than

those identified by Dr. Asad. The ALJ’s reliance on Dr. Asad

therefore appears to “cherry-pick” one opinion that supports the

ALJ’s own view. Indeed, the ALJ’s reliance on Dr. Asad’s opinion

to support a preferred administrative conclusion is flawed under

§ 404.1520(a)(3), which requires that an ALJ consider all evidence

when making a disability determination.2

This is especially true because the ALJ provided no

analysis of the consistency factor for Dr. Asad’s assessment.

Under 20 C.F.R. § 404.1520c, as noted above, an ALJ is required to

evaluate and explain the supportability and consistency factors.

Ayala v. Kijakazi, No. 20-cv-09373(RWL), 2022 WL 3211463, at *16

(S.D.N.Y. Aug. 9, 2022) (“The ALJ ‘must,’ on a source-level,

‘explain his [ ] approach with respect to the [supportability and

consistency factors] when considering a medical opinion.’”)

2 The ALJ also found that the assessments of state agency medical analysts Dr.

Li and Dr. Marasigan were somewhat persuasive. (ECF No. 17, Tr. at 20-21.)

Dr. Li and Dr. Marasigan each evaluated Plaintiff’s file but did not engage in

an in-person examination of Plaintiff. (ECF No. 14-2, Stip. at ¶¶ 230-32, 233-

34.) When Dr. Li reviewed the record in July 2019, the record only contained

medical Exhibits 1F through 7F. (Id. at ¶ 231.) Dr. Li was unable to evaluate

medical Exhibits 8F through 12F, and thus did not examine nearly a third of the

medical record. (Id. at ¶ 234.) Similarly, when Dr. Marasigan reviewed the

medical record in December 2019, Dr. Marasigan only reviewed the record up to

Exhibit 9F and did not review Exhibits 10F through 12F. (Id.) Even when a

consultative source reviews a medical record in full, if no physical examination

of the plaintiff is performed, the consultative opinions are entitled to little

if any weight. Filocomo v. Chater, 944 F. Supp. 165, 169 n.4 (E.D.N.Y. 1996).

When, as here, the record reviewed is incomplete, there is “no basis to find

the substantial evidence necessary to uphold the ALJ’s decision.” Pratts v.

Chater, 94 F.3d 34, 38 (2d Cir. 1996); see also Vargas v. Sullivan, 898 F.2d

298, 295-96 (2d Cir. 1990). Accordingly, this Court finds that the ALJ should

not have assigned any weight to Dr. Li’s and Dr. Marasigan’s assessments, and

that the assessments do not factor in to the “substantial evidence” analysis

supporting the ALJ’s RFC finding.

(internal quotation marks omitted), 2021 WL 319354, at *6 (S.D.N.Y.

Jan. 29, 2021), report and recommendation adopted, 2021 WL 2801138

(S.D.N.Y. July 6, 2021)). The ALJ described Dr. Asad’s findings

in some detail before concluding that Dr. Asad’s conclusion

regarding Plaintiff’s limitations was supported by the record –

thus appropriately addressing the supportability factor. Navedo

v. Kijakazi, No. 20-cv-10013(JLC), 2022 WL 2912986, at *9 (S.D.N.Y.

July 25, 2022) (“[S]upportability, under the new regulations, has

to do with the fit between the medical opinion offered by the

source and the underlying evidence and explanations presented by

that source to support her opinion.” (citation and quotation marks

omitted)). The ALJ, however, did not mention consistency when

discussing Dr. Asad’s opinion, as required, even though it was the

only opinion that the ALJ found to be fully persuasive. Accord

Prieto, 2021 WL 3475625, at *13 (“Eschewing rote analysis and

conclusory explanations, the ALJ must discuss the crucial factors

in any determination . . . with sufficient specificity to enable

the reviewing court to decide whether the determination is

supported by substantial evidence.” (citation and quotation marks

omitted)).

Finally, the ALJ did not discuss the other factors

provided by § 404.1520c(c), such as the sources’ relationship to

Plaintiff or their specializations. Under the new regulations,

the ALJ is not required to discuss these factors. Ayala, 2022 WL

3211463, at *4; § 404.1520c(c)(2) (“We may, but are not required

to, explain how we considered the factors in paragraphs (c)(3)

through (c)(5).”). Nevertheless, these factors provide useful

context where, as here, multiple medical sources dismissed by the

ALJ are consistent with each other and inconsistent with the ALJ’s

RFC finding. Indeed, four of the medical sources that found that

Plaintiff could not perform sedentary work or would have

significant difficulty doing sedentary work — a conclusion the ALJ

rejected — were Plaintiff’s treating physicians, two of whom had

treated Plaintiff multiple times over the course of several years.

(ECF No. 17, Tr. at 17-20.) Dr. Asad, a consultative examiner,

conducted a single assessment of Plaintiff on July 2, 2019. (Id.

at 20.) Further, Dr. Checo and Dr. Koutsoumbelis — the medical

sources who found that Plaintiff was totally disabled — were both

Plaintiff’s treating orthopedic surgeons, whereas Dr. Asad was a

specialist in nuclear medicine. (ECF No. 14-2, Stip. at ¶¶ 29,

83, 226.) Given that Plaintiff’s injury and alleged disability

were related to a spinal injury, that all of Plaintiff’s treating

physicians either specialized in orthopedic medicine or pain

management, and that these sources consistently found that

Plaintiff was unable to engage in or severely limited in her

ability to perform sedentary work, it is not clear why the ALJ

gave significantly greater weight to Dr. Asad’s assessment.

Therefore, this Court finds that remand is necessary.

The ALJ erred in failing to discuss Dr. Goldstein’s assessment;

incorrectly affording no weight to medical opinions that issued a

finding on disability for workers’ compensation purposes; cherry-

picking findings from Dr. Asad’s consultative examination despite

contradictory findings from at least five other medical sources;

and failing to explain the consistency of Dr. Asad’s assessment.

Rivera v. Comm’r of Soc. Sec., No. 19-cv-04630 (LJL) (BCM), 2020

WL 8167136, at *14 (S.D.N.Y. Dec. 30, 2020), report and

recommendation adopted, 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021)

(citation and quotation marks omitted). The ALJ’s reliance on,

and cherry-picking from, Dr. Asad’s opinion as the benchmark

against which to evaluate the consistency of medical evidence was

flawed, given that Dr. Asad’s findings were contrary to most of

the medical evidence in the record, and were the result of a single

examination as opposed to a long-term treating relationship.

Accordingly, there is not substantial evidence to support the ALJ’s

RFC determination, and remand is necessary.3

C. Remand

Plaintiff requests that the case be remanded solely for

calculation of benefits. (ECF No. 14-1, Pl. Mem. at 30.) The

3 Because the Court finds that substantial evidence did not exist to support

the ALJ’s RFC determination and remands on that basis, the Court declines to

address Plaintiff’s argument regarding Plaintiff’s credibility. On remand, the

ALJ shall address Plaintiff’s credibility.

Court has the discretion to remand for the calculation and payment

of benefits where the record “provides persuasive proof of

disability and a remand for further evidentiary proceedings would

serve no purpose.” Duran v. Comm’r of Soc. Sec., 618 F. Supp. 3d

94, 99 (E.D.N.Y. 2022) (internal quotation marks omitted); see

also Harbot v. Berryhill, 335 F. Supp. 3d 382, 388 (W.D.N.Y. 2018)

(“Remand for the purpose of calculation of benefits is warranted

where the record demonstrates the claimant’s disability, and where

there is no reason to conclude that there is additional evidence

to support the Commissioner’s claim that a claimant is not

disabled.”). In determining the proper scope of remand, courts

consider “the completeness of the record, the nature of the ALJ's

error, the proof of disability in the record, and the likelihood

of further delay.” Olympia Joyce A. v. Kijakazi, No. 21-CV-429

(BKS), 2022 WL 3370798, at *3 (N.D.N.Y. Aug. 16, 2022).

Here, Plaintiff has provided “persuasive proof” that she

has been disabled since July 19, 2016, a period of over seven

years. Two of Plaintiff’s treating orthopedic surgeons, Dr. Checo

and Dr. Koutsoumbelis, found that she was totally disabled. (ECF

No. 17, Tr. at 17, 19-20.) Both doctors consistently documented

Plaintiff’s complaints of significant leg and back pain, decreased

mobility, and difficulty sitting or standing for anything more

than short periods of time. (Id.) Indeed, Plaintiff estimated

that she spends “about 80% of her day lying down.” (ECF No. 14-

2, Stip. at ¶ 23.) Medical opinions by Dr. Rosenberg, Dr. Lee,

Dr. Koutsoumbalis, Dr. Zitner, and PA Finn corroborated that

Plaintiff could not perform sedentary work or would have

significant difficulty doing so, given her levels of pain and

difficulty sitting and standing. (ECF No. 17, Tr. at 16-23.) The

record is also replete with documentation from Plaintiff’s

treatment providers that medical treatments to address Plaintiff’s

medical conditions and symptoms, via medication, physical therapy,

and surgical intervention, have been largely unsuccessful. (ECF

No. 14-1, at ¶¶ 163-205.) Dr. Checo, Dr. Lee, and Dr.

Koutsoumeblis all treated Plaintiff before and after three

separate surgeries intended to reduce Plaintiff’s pain and

increase her mobility, and documented that each surgery was largely

unsuccessful in achieving these outcomes. (Id. at ¶¶ 96-111, 188-

215.)

Plaintiff’s record is complete, without the need for further

assessments or the submission of additional evidence. Indeed, the

ALJ’s error was in failing to cite to substantial evidence in

support of the decision to deny benefits; there is no reason to

conclude that additional evidence will support the Commissioner’s

finding that Plaintiff is not disabled. Given the extensive proof

of disability in the record noted above, it is likely that

remanding for further proceedings will simply cause additional

delay – and risk wasting judicial and administrative resources -

before Plaintiff receives benefits. Accordingly, given that there

is “persuasive proof” of Plaintiff’s disability in the record, the

Court remands solely for the calculation of benefits.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion to remand

for calculation of benefits is GRANTED, the Commissioner’s cross-

motion for judgment on the pleadings is DENIED, and this case is

REMANDED for further proceedings consistent with this Memorandum

and Order. The Clerk of Court is directed to enter judgment

remanding this case, and to close the case.

SO ORDERED.

DATED: August 3, 2023

Brooklyn, New York b “2 ‘YY, —s

“Vy oe tae

HON. KIYO A. MATSUMOTO

United States District Judge

24