Pichardo v. O'Malley

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ASDRUBAL MARIANO PICHARDO,

Plaintiff,

MEMORANDUM AND ORDER

-against- 21-CV-2711 (KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Asdrubal Mariano Pichardo (“Plaintiff”) appeals the

final decision of the Commissioner of Social Security (the

“Commissioner”), finding him not disabled from January 31, 2014,

through March 31, 2016, and thus not entitled to disability

insurance benefits under Title II of the Social Security Act (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. 15-2, Joint Stipulation of Facts (“Stip.”).)

I. Procedural History

On July 9, 2014, Plaintiff filed an initial claim for

disability insurance benefits (“DIB”) based on a variety of

allegedly disabling injuries and conditions, including: back

injuries, rheumatoid arthritis, diabetes, depression, hip

injuries, cervical spine injuries, sciatica, obesity, reflex

sympathetic dystrophy, and psoriasis. (ECF Nos. 18‒18-2,

together, Administrative Transcript (“Tr.”), at 128.) Plaintiff’s

claim was denied by the Social Security Administration (“SSA”) on

December 3, 2014, and he requested a hearing before an ALJ on

February 3, 2015. (Tr. at 128-37, 198-99.)

On February 23, 2017, Plaintiff appeared before ALJ Alan B.

Berkowitz, (Tr. at 103-27), who denied Plaintiff’s claim in a

written decision dated April 20, 2017. (Tr. at 138-55.) Plaintiff

requested Appeals Council review of the decision on May 9, 2017.

(Tr. at 249.) On February 7, 2018, the Appeals Council vacated

ALJ Berkowitz’s decision and remanded the claim for another

hearing. (Id. at 158-60.) The Appeals Council instructed ALJ

Berkowitz to remediate procedural errors, gather additional

evidence, and evaluate Plaintiff’s mental impairments in

accordance with 20 C.F.R. § 404.1520a. (Id.)

On remand, ALJ Berkowitz held a supplemental hearing on June

18, 2019, before denying Plaintiff’s claim for a second time in a

written decision dated July 16, 2019. (Tr. at 72-102, 162-84.)

Plaintiff sought Appeals Council review for a second time on July

29, 2019. (Id. at 338-40.) On July 7, 2020, the Appeals Council

vacated ALJ Berkowitz’s second decision, and remanded to a new ALJ

for another hearing. (Id. at 187-88.) The Appeals Council

instructed the newly assigned ALJ to resolve issues between the

vocational expert’s testimony and the Dictionary of Occupational

Titles (“DOT”) and to further consider a treating physician’s

opinion, developing the record additionally as needed. (Id.)

Following the Appeals Council’s decision to remand, on

December 9, 2020, Plaintiff appeared for a third hearing on his

claim, this time before ALJ Brian J. Crawley (the “ALJ”). (Id. at

37-69.) In a written decision dated December 23, 2020, the ALJ

found Plaintiff not disabled. (Id. at 9-36.) Plaintiff requested

review by the Appeals Council, which denied his request on March

24, 2021. (Id. at 1-6, 405-08.) This action followed. (See

generally ECF No. 1, Complaint.)

II. Hearing before the ALJ

Plaintiff was represented by licensed hearing representative

Francisco Serrano at his most recent December 9, 2020, hearing

before the ALJ. (Tr. at 39.)

For context, the Court will briefly examine the events leading

up to Plaintiff’s initial application for disability. Plaintiff

was initially injured in an automobile accident in 2009 that left

him with disc herniations, an annular tear, and injury to his right

knee. (Id. at 595-97.) This injury was exacerbated by a

subsequent slip-and-fall accident at work on January 31, 2014,

which aggravated Plaintiff’s impairments. (Id. at 42, 1241-44.)

Plaintiff was 38 years old at the time of the 2014 work accident.

(Id. at 27.) As part of his disability claim, Plaintiff was

referred for an orthopedic examination, which took place on October

27, 2014. (Id. at 723.) Plaintiff complained of the following:

The claimant states he has had diabetes. . . . Due to it

he has blurry vision of the right eye and states it

contributes to numbness and tinqlinq in his leg . . .

He has psoriasis since 2004. Due to it he gets dry

patches and itchiness of the skin on his legs. . . .

He has neck to lower back pain since 2009 after a car

accident. It is a constant sharp throbbing; radiates

into the right leg. It is a 6/10. He was diagnosed with

annular tears, Schmorl’s nodes, herniated discs and

arthritis. . . .

He has right arm pain since 2002 after a work related

injury. He had a laceration of the right hand requiring

surgery. Due to it he now has hand and wrist pain which

is constant and varies in nature. . . .

He has right knee pain since 2000 and it comes [and]

goes. He was diagnosed with arthritis. It feels unstable

and he had physical therapy for it.

(Id.) Plaintiff also sought a referral to and began receiving

care from a clinical psychologist in January 2015 based on

“concerns about his emotional status and daily functioning, as

[Plaintiff] feels anxious and depressed.” (Id. at 932.)

At the hearing before the ALJ in 2020, Plaintiff described

his daily routine after his accident in January 2014 and prior to

March 31, 2016, his date last insured. (Id. at 44, 49-50.)

Plaintiff stated that at the time, he generally stayed at home,

occasionally leaving to go to doctor’s appointments or assist with

grocery shopping. (Id. at 49-50.) Plaintiff denied assisting

with other household chores, and stated that he could probably sit

or stand for about 20 or 30 minutes at a time. (Id. at 51.)

Plaintiff also testified that he could probably walk two blocks

before needing to rest, and could lift one gallon of milk, but not

two. (Id. at 51, 55.) Plaintiff denied having hobbies, explaining

that fixing cars had been what he loved to do, but he could no

longer do it. (Id. at 53.) Plaintiff also explained the various

medications that he takes, including Lisinopril for blood

pressure, Simvastin/Humira for cholesterol, Methotrexate and

Plaquenil for lupus lesions, and Hydroxyzine for hives. (Id. at

60.) Plaintiff also described using heating pads and ice for his

hip, shoulder, and neck pain, along with a cane that he was

prescribed by a doctor to help him walk. (Id. at 60-61.)

The ALJ called a vocational expert (“VE”) as a witness at the

hearing, as well. (Id. at 65.) Plaintiff had testified that his

past work had been primarily as a car salesman at various

establishments, and the VE classified Plaintiff’s past work as

“salesperson, automobiles” and “manager, vehicles leasing and

retail” based on Plaintiff’s descriptions. (Id.)

The ALJ subsequently asked the VE to consider a person of the

plaintiff's age, education, and work history, who could perform

sedentary work, but who could “frequently use the right upper

extremity for reaching, including reaching overhead, and for

handling, fingering, and feeling.” (Id. at 65-66.) The VE

testified that such a person could perform the jobs of addresser,

stuffer, and polisher (eyeglass frames), and that those jobs

existed in varying numbers in the economy. (Id.) Upon

clarification by the ALJ that the hypothetical individual was

limited to performing jobs with “simple, routine, repetitive

tasks, and low stress defined as frequently making work related

judgments and decisions, and frequently dealing with changes in a

routine work setting, with frequent interaction with supervisors,

coworkers, and the public,” the VE confirmed that such a person

could still perform the previously mentioned jobs. (Id. at 66.)

The ALJ next asked if a person limited to working “54 minutes of

each hour” could perform the jobs listed, which the VE confirmed.

(Id. at 66-67.) Upon questioning from the ALJ regarding whether

an individual limited to “51 minutes of each hour” could perform

the jobs listed, though, the VE stated that such a hypothetical

person could not. (Id. at 67.) The VE further confirmed that

while missing one day of work per month on an unscheduled basis

would be acceptable, two days missed per month would preclude the

hypothetical individual from the jobs listed. (Id.) Last, in

response to the ALJ’s question about an individual that could stand

and walk for only one hour combined, and sit for approximately

five hours, the VE stated that such a limitation would eliminate

all work that exists in the national economy. (Id. at 67-68.)

III. The ALJ’s Decision

Pursuant to the SSA regulations, an ALJ follows a five-step

process for evaluating disability claims, which has been

summarized as follows:

First, the Commissioner considers whether the claimant

is currently engaged in substantial gainful activity. If

[s]he is not, the Commissioner next considers whether

the claimant has a “severe impairment” which

significantly limits h[er] physical or mental ability to

do basic work activities. If the claimant suffers such

an impairment, the third inquiry is whether, based

solely on medical evidence, the claimant has an

impairment which is listed in Appendix 1 of the

regulations. If the claimant has such an impairment, the

Commissioner will consider h[er] [per se] disabled....

Assuming the claimant does not have a listed impairment,

the fourth inquiry is whether, despite the claimant's

severe impairment, [s]he has the residual functional

capacity to perform h[er] past work. Finally, if the

claimant is unable to perform h[er] past work, the

Commissioner then determines whether there is other work

which the claimant could perform.

Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (citing

DeChirico v. Callahan, 134 F.3d 1177, 1179–80 (2d Cir. 1998)).

“The applicant bears the burden of proof in the first four steps

of the sequential inquiry; the Commissioner bears the burden in

the last.” Id. To determine the claimant’s residual functional

capacity (“RFC”), the ALJ must consider the claimant’s

“impairment(s), and any related symptoms, [that] may cause

physical and mental limitations that affect what [the claimant]

can do in a work setting.” 20 C.F.R. § 404.1545(a)(1).

In the instant case, the ALJ denied Plaintiff’s application

for disability benefits on December 23, 2020. (Tr. at 9.)

Following the five-step test set forth in SSA regulations, the ALJ

found at step one that Plaintiff had not engaged in substantial

gainful activity during the period from his alleged onset date of

January 31, 2014, through his date last insured of March 31, 2016.

(Id. at 14.) At step two, the ALJ found that Plaintiff had the

following “severe impairments”: degenerative disc disease of the

cervical and lumbar spines, bilateral knee disorder, right

shoulder disorder, degenerative joint disease of the right hip,

diabetes mellitus, obesity, depressive disorder, and anxiety

disorder. (Id. at 15.)

At step three, the ALJ concluded that none of Plaintiff’s

severe impairments singly or in combination met or medically

equaled an impairment listed in 20 C.F.R. Part 404, Subpart P,

Appendix 1. (Id. at 16.) The ALJ considered both Listing 1.02

(regarding Plaintiff’s bilateral knee disorder, right shoulder

disorder, and degenerative joint disease of the right hip) and

Listing 1.04 (regarding Plaintiff’s degenerative disc disease of

the cervical and lumbar spines) but concluded that Plaintiff did

not meet or equal either listing. (Id.) Specifically, the ALJ

found that Plaintiff’s impairments were not accompanied by an

inability to ambulate effectively or perform fine and gross

movements effectively, for Listing 1.02, or evidence of nerve root

compression, spinal arachnoiditis, or lumbar spinal stenosis

resulting in pseudoclaudication, for Listing 1.04. (Id. at 16-

17.) The ALJ also considered Plaintiff’s diabetes and obesity in

the context of the overall record in making his decision. (Id. at

17.)

The ALJ next evaluated whether Plaintiff’s mental impairments

met Listings 12.04 (regarding affective disorders), or 12.06

(regarding anxiety-related disorders). (Tr. at 17.) The ALJ found

that Plaintiff did not meet any of the “paragraph B” criteria for

Listings 12.04 and 12.06. (Id. at 17-18.) Specifically, the ALJ

found that Plaintiff had no more than a moderate limitation to his

ability to understand, remember, or apply information; interact

with others; concentrate, persist, or maintain pace; or adapt and

manage himself. (Id.) Because the ALJ found that Plaintiff

exhibited no “marked” or “extreme” limitations, the ALJ concluded

that Plaintiff did not satisfy the paragraph B criteria. (Id. at

18.)

Having found that Plaintiff did not meet Listing 1.02, 1.04,

12.04, or 12.06, the ALJ next assessed Plaintiff’s RFC. (Id.)

The ALJ found that Plaintiff could perform sedentary work as

defined in 20 C.F.R. § 404.1567(a) except Plaintiff could, in an

8-hour day, (1) sit up to 6 hours, (2) stand or walk up to 2 hours,

(3) lift and carry up to 5 pounds frequently and 10 pounds

occasionally, and (4) frequently use the “right upper extremity

for reaching, including reaching overhead, and frequent handling,

fingering, and feeling.” (Id. at 18-19.) The ALJ also found that

Plaintiff could perform “simple, routine, repetitive tasks” in a

“low stress position” that involved frequently (1) making work

related judgments and decisions, (2) dealing with changes in

routine work settings, and (3) interacting with supervisors,

coworkers, and the public. (Id.) Finally, the ALJ found that

Plaintiff could perform the aforementioned tasks for “54 minutes

of each hour or 90% of the workday.” (Id.)

Regarding Plaintiff’s physical impairments, the ALJ credited

Plaintiff’s claim of back, neck, shoulder, and knee impairments

caused by a fall at work that exacerbated earlier injuries from a

car accident, but found that the available MRI, x-ray, and physical

examination findings and other objective medical tests did not

support his subjective claims as to the degree of resulting

impairment or the persistence of the pain. (Id. at 19-27.) For

instance, the ALJ noted that records from Plaintiff’s treatment

showed “no evidence of [Reflex Sympathetic Dystrophy],

paresthesia, hyperesthesia, negative impingement in both

shoulders, and full range of motion in the bilateral hip and

knees.” (Id. at 21.) The ALJ noted that another examination by

a separate provider noted “positive straight leg raising,

decreased range of motion in the lower back, but frequently

demonstrated only mild bilateral paralumbar tenderness, no spinal

midline tenderness, nontender facet joints, SI joints, and sacral

ligaments, improved range of motion in the lumbar spine, no

tenderness in the trochanteric bursa or iliotobial bands, no focal

motor or sensory deficits, and normal reflexes.” (Id.) The ALJ

also pointed to Plaintiff’s records from Coordinated Health, in

which Plaintiff’s examining physician “assessed [Plaintiff] to

have no work restrictions” circa March 2014. (Id. at 22.)

Ultimately, the ALJ concluded that Plaintiff’s course of treatment

did not support his allegations of disability, finding that his

treatment had been “essentially conservative, consisting of

routine office visits, injections, physical therapy, chiropractic

treatment, and medication management” with no “surgical

intervention” needed. (Id. at 24.)

In reaching his RFC conclusion as to Plaintiff’s physical

abilities, the ALJ evaluated the opinions of the various treating

physicians and considered opinion evidence as to Plaintiff’s

functional capacities. (Id. at 24-26.)

First, the ALJ accorded “great weight” to the opinion of Dr.

Nabil Farakh, who opined that Plaintiff “was able to perform a

light duty job, mostly desk activity, and has limited activity of

the bilateral lower and upper extremities.” (Id. at 24.) The ALJ

noted that Dr. Farakh both had a “longstanding treatment

relationship with [Plaintiff]” and also provided an opinion that

was “well supported by and consistent with examinations.” (Id.)

Second, the ALJ accorded “great weight” to consultative

examiner Dr. Pollack’s opinion finding mild or moderate

restrictions to most of Plaintiff’s physical capabilities, while

noting that limitations regarding Plaintiff’s vision were not

supported by testimony or treatment records. (Id.)

Third, the ALJ accorded “little weight” to treating physician

Dr. Michael Nimeh’s opinion that Plaintiff could, among other

things, “sit for 5 hours and stand or walk for less than one hour

during an eight-hour workday, that he would have to alternate

standing and sitting every 30-45 minutes, that he requires a cane

to ambulate, and that he would have 3 or more absences per month.”

(Id. at 25.) The ALJ found Dr. Nimeh’s opinion “by its own terms

is applicable only beginning May 17, 2018, [] well after the date

last insured” and as such, was “not probative of the claimant’s

functioning during the period at issue.” (Id.) The ALJ similarly

assigned little weight to a subsequent 2020 opinion by Dr. Nimeh

that was applicable “only beginning September 10, 2020.” (Id.)

Fourth, the ALJ accorded “little weight” to Dr. Giuseppe

Guglielmello’s opinion as Plaintiff’s treating pulmonologist,

noting that it was “rendered well after the date last insured and

by its own terms is applicable only beginning July 11, 2017, also

well after the date last insured.” (Id. at 26.)

Fifth, the ALJ assigned little weight to a September 2020

opinion by Dr. Nicole Chiapetti, a rheumatologist, for

substantially the same reasons as with Dr. Nimeh’s opinions

regarding the time covered by the opinion. (Id.)

Regarding Plaintiff’s mental capacity, the ALJ accorded

“little weight” to the opinion of Dr. Calev, who found Plaintiff

had several “marked” impairments to his ability to function. (Id.

at 24-25.) The ALJ found that Dr. Calev’s opinion was “not

supported by mental status examinations, which have been

frequently within normal limits.” (Id. at 25.) The ALJ also

assigned little weight to an opinion by Dr. Nimeh from September

2020 that assessed several limitations in Plaintiff’s mental

capability. (Id.) The ALJ noted that although the opinion stated

the limitations “existed three to four years prior to the date of

the report,” Dr. Nimeh did not begin treating Plaintiff until May

2018, and the report was not corroborated by any treatment notes

during the period prior to the date last insured. (Id.) The ALJ

assigned little weight to an opinion by Sarah Cruz, CRNP, finding

“marked” limitations in several of Plaintiff’s mental

capabilities, finding that the opinion was “by its own terms

applicable only beginning September 21, 2020, also well after the

date last insured.” (Id. at 26.)

In addition to weighing the credibility of various doctors'

opinions, the ALJ also evaluated Plaintiff’s credibility. (Id. at

23.) The ALJ found that Plaintiff’s “reported daily activities are

greater than one might expect, given his allegations of physical

and mental disability,” and continued:

The claimant reported to consultative examiner Dr.

Pollack that he is able to shower and dress himself. He

stated that he watched television, reads, and sometimes

needs assistance in dressing. (Exhibit 10F). Although

claimant reported difficulty attending to his personal

needs in his function report, in October 2017, claimant

reported to his treating physician that he had no

problems with bathing, dressing, or eating, has no

problems with light household tasks, no difficulty

climbing stairs, does not get short of breath doing

certain tasks, has not fallen in the last 6 months, does

not use an assistive device to walk, and does not feel

unsteady on his feet (Exhibit 26F at 77, 84). He reported

to Dr. Calev that he helps with daily chores for the

family (Exhibit 16F at 22, 26, 27). He reported that he

could drive and that he can prepare microwave meals, but

only sometimes cooked (Exhibit 3E). In addition, as

noted, the claimant testified that he did not need help

showering and could drive an automobile, shop

independently for a couple of items, and wash a few

dishes.

(Id. at 23-24.) Accordingly, the ALJ found Plaintiff’s reported

activities of daily living to be consistent with the RFC,

notwithstanding Plaintiff’s allegations of total physical and

mental disability. (Id. at 24.)

At step four, the ALJ found that Plaintiff could no longer

perform his past work as a car salesperson or vehicle leasing

manager, given his RFC for “less than the full range of sedentary

work.” (Id. at 27.) At step five, the ALJ assessed whether “there

were jobs that existed in significant numbers in the national

economy” considering Plaintiff’s RFC, age, educational attainment,

and work experience in conjunction with the Medical–Vocational

Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. (Id. at

28.) Because Plaintiff’s RFC was less than the performance

requirements for sedentary work under the Medical–Vocational

Rules, the ALJ relied on the VE's opinion. (Id.) The ALJ accepted

the VE's testimony that a person with Plaintiff’s exertional and

non-exertional limitations could perform the jobs of addresser,

stuffer, and eyeglass frame polisher, each of which existed in

varying numbers in the national economy. (Id.) The ALJ concluded

that Plaintiff was not disabled within the meaning of the Act.

(Id. at 28-29.)

STANDARD OF REVIEW

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 she is unable to “engage in

any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to last

for a continuous period of not less than 12 months.” Id.

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

the claimant is unable to do his previous work or “engage in any

other kind of substantial gainful work.” Id. § 423(d)(2)(A). “The

Commissioner must consider the following in determining a

claimant’s entitlement to benefits: ‘(1) the objective medical

facts [and clinical findings]; (2) diagnoses or medical opinions

based on such facts; (3) subjective evidence of pain or disability

. . . ; and (4) the claimant’s educational background, age, and

work experience.’” Balodis v. Leavitt, 704 F. Supp. 2d 255, 262

(E.D.N.Y. 2001) (quoting Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.

1999) (alterations in original)).

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). In reviewing a final decision of the Commissioner, the

reviewing court's role is “limited to determining whether the SSA's

conclusions were supported by substantial evidence in the record

and were based on a correct legal standard.” Talavera v. Astrue,

697 F.3d 145, 151 (2d Cir. 2012) (internal quotation marks and

citation omitted). “Substantial evidence is more than a mere

scintilla. It 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) (per curiam) (internal

quotation marks omitted) (quoting Richardson v. Perales, 402 U.S.

389, 401 (1971)). In determining whether the Commissioner's

findings were based on substantial evidence, “the reviewing court

is required to examine the entire record, including contradictory

evidence and evidence from which conflicting inferences can be

drawn.” Id. However, “it is up to the agency, and not [the]

court, to weigh the conflicting evidence in the record.” Clark v.

Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). If there

is substantial evidence in the record to support the Commissioner's

findings as to any fact, those findings are conclusive and must be

upheld. 42 U.S.C. § 405(g); see also Cichocki v. Astrue, 729 F.3d

172, 175–76 (2d Cir. 2013) (per curiam).

Federal law explicitly authorizes a court, when reviewing

decisions of the SSA, to order further proceedings when

appropriate. “The court shall have power to enter, upon the

pleadings and transcript of the record, a judgment affirming,

modifying, or reversing the decision of the Commissioner of Social

Security, with or without remanding the cause for a rehearing.”

42 U.S.C. § 405(g). Remand is warranted where “there are gaps in

the administrative record or the ALJ has applied an improper legal

standard.” Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999)

(quoting Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (internal

quotation marks omitted). Remand is particularly appropriate

where further findings or explanation will clarify the rationale

for the ALJ’s decision. Pratts, 94 F.3d at 39. However, 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

On appeal, Plaintiff asserts that the ALJ: (1) improperly

evaluated the vocational evidence by failing to inquire “about

local or regional positions” given the number of positions

available in the national economy; (2) failed to follow the

treating physician rule1 in dismissing Dr. Calev’s opinion, and

erred in failing to credit Dr. Pollack’s findings regarding visual

restrictions; and (3) failed to properly evaluate Plaintiff’s

credibility. (ECF No. 15-1, Plaintiff’s Memorandum of Law in

Support (“Pl. Mem.”), at 7-25.) The Court finds no error in the

ALJ’s evaluation of the vocational evidence or Dr. Pollack’s

medical opinion, but nonetheless finds remand is necessary due to

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. However, because Plaintiff filed his claims on July 9,

2014, the old regulations, including the treating physician rule, still apply.

a failure to develop the record regarding the medical opinion

evidence concerning Plaintiff’s mental capabilities.

I. The ALJ Properly Evaluated the Vocational Evidence

“[W]ork which exists in the national economy” is defined as

“work which exists in significant numbers either in the region

where such individual lives or in several regions of the country.”

42 U.S.C. § 423(d)(2)(A); see also 20 C.F.R. § 404.1566(a). “It

does not matter whether - (1) [w]ork exists in the immediate area

in which [the claimant] live[s]; [a] specific job vacancy exists

for [the claimant]; or (3) [the claimant] would be hired if [he or

she] applied for work.” 20 C.F.R. § 404.1566(a). “Courts have

not established a bright line test as to the threshold number of

jobs that is considered ‘significant’ for purposes of the Act.”

Sanchez v. Berryhill, 336 F. Supp. 3d 174, 177 (W.D.N.Y. 2018)

(citation omitted). “However, courts have generally held that

what constitutes a ‘significant’ number is fairly minimal,” and

numbers between 9,000 and 10,000 jobs “have typically been found

to be sufficiently ‘significant’ to meet the Commissioner's

burden.” Id. (internal quotation marks and citations omitted)

(collecting cases).

In the instant case, the VE’s testimony established that there

are, at minimum, 13,400 jobs existing in the national economy that

Plaintiff could perform based on the ALJ’s RFC. (Tr. at 66.)

Specifically, the VE stated that there were, nationwide, 7,000

jobs available as an “addresser,” 5,400 jobs available as a

“stuffer,” and 1,000 jobs available as a “polisher, eyeglass

frames.” (Id.) This number of jobs is consistent with those found

to be “significant” under the Act by other courts examining the

same issue, and this Court finds no reason to diverge from that

reasoning. See Sanchez, 336 F. Supp. 3d at 177.

Plaintiff argues that “the occupations identified by the VE,

and adopted by the ALJ, are below the 8,000 jobs in the national

economy which were found to be insufficient in Wayne.” (Pl. Mem.

at 9 (citing Wayne M. v. Saul, No. 20-CV-465, 2021 WL 1399777, at

*16 (D. Conn. Apr. 14, 2021).) However, Plaintiff’s reliance on

Wayne M. is misplaced. In Wayne M., the district court found that,

based on an incomplete hypothetical, the ALJ had actually only

identified “one job that accounts for occasional reaching – that

of a bakery worker, conveyor line.” Wayne M., 2021 WL 1399777, at

*15. As such, the district court evaluated the number of jobs in

the national economy for only that one occupation, and ignored the

other jobs offered by the VE. Id. at *16.

Here, there is no such reason to look at each of the

occupations in isolation, as Plaintiff appears to ask this Court

to do, because there is no argument that only one of the

occupations presented by the VE properly accounted for the

Plaintiff’s RFC. As a result, the Court examines the available

jobs in aggregate, as is the practice in other cases examining the

number of jobs available in the national economy. See Hamilton v.

Comm'r of Soc. Sec., 105 F. Supp. 3d 223, 231 (N.D.N.Y. 2015)

(analyzing the three occupations provided by the VE in aggregate).

Plaintiff also argues that the ALJ “only inquired about

alternate work in the national economy, and never inquired about

local or regional positions” but cites no authority stating that

such an inquiry was necessary. (Pl. Mem. at 10.) In the absence

of any authority to the contrary, and in light of the statutory

language, this Court finds that the ALJ did not err in only

inquiring as to the number of jobs available nationally. See 42

U.S.C. § 423(d)(2)(A) (“‘work which exists in the national economy’

means work which exists in significant numbers either in the region

where such individual lives or in several regions of the country)

(emphasis added).

For the foregoing reasons, the Court finds that the ALJ did

not err when he determined that jobs existed in significant numbers

in the national economy based on the VE’s testimony that there

were 13,400 positions available across three different

occupations. See Wayne M., 2021 WL 1399777, at *16 (“numbers in

the range of 10,000 jobs nationally have typically been found to

be sufficiently ‘significant’ to meet the Commissioner's burden”).

II. The ALJ Failed to Develop the Record

Before examining the ALJ’s evaluation of both the medical

opinion evidence and the Plaintiff’s credibility, the Court will

first discuss an important predicate – whether the ALJ properly

developed the record in the instant case.

“Whether the ALJ has met his duty to develop the record is a

threshold question that must be determined before the Court reviews

whether the ALJ's final decision is supported by substantial

evidence.” Miranda v. Comm'r of Soc. Sec., No. 22-cv-4226 (PKC),

2023 WL 6385727, at *6 (E.D.N.Y. Sept. 29, 2023) (internal

quotation marks and citation omitted). Even when not raised by

the claimant, the Court “must independently consider the question

of whether the ALJ failed to satisfy his duty to develop the

Record.” Sanchez v. Saul, No. 18-cv-12102 (PGG) (DF), 2020 WL

2951884, at *23 (S.D.N.Y. Jan. 13, 2020), report and recommendation

adopted sub nom. Sanchez v. Comm'r of Soc. Sec., 2020 WL 1330215

(S.D.N.Y. Mar. 23, 2020). “[B]ecause a hearing on disability

benefits is a nonadversarial proceeding, the ALJ generally has an

affirmative obligation to develop the administrative record.”

Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (citations

omitted). “Legal errors regarding the duty to develop the record

warrant remand.” Wilson v. Colvin, 107 F. Supp. 3d 387, 407

(S.D.N.Y. 2015) (collecting cases).

In the instant case, the weight the ALJ assigned to the

Plaintiff’s treating psychologist’s medical opinion evidence

regarding Plaintiff’s mental capabilities indicates that the ALJ

should have further developed the record. Although the ALJ

considered the opinion of Dr. Calev, Plaintiff’s treating

psychologist, the ALJ assigned the opinion “little weight” as it

was “not supported by [Dr. Calev’s] mental status examinations,

which have been frequently within normal limits.” (Tr. at 24-25.)

Subsequently, in crafting the RFC, the ALJ limited Plaintiff to

“simple, routine, repetitive tasks” in a “low stress position.”

(Id. at 19.) The ALJ reasoned that “[t]he simple, unskilled nature

of the jobs described in the residual functional capacity accounts

for any issues the claimant may have with concentration due to his

pain and issues with depression and anxiety.” (Id. at 27.)

However, the ALJ did not point to any medical opinion evidence, or

other expert testimony supporting the mental limitations in the

ALJ’s RFC.

Plaintiff accurately points out the issue with the ALJ’s

decision-making process in his reply brief:

Unlike Woodmancy v. Colvin, [577 F.App’x 72 (2nd Cir.

2014),] the ALJ and the Commissioner failed to send Mr.

Pichardo for a psychiatric consultative examination, and

both of the ALJs who presided over Plaintiff’s three (3)

hearings chose not to obtain any medical expert

testimony at the hearings. (Tr. 37-69, 72-127, 587-

1880.) In fact, even at the initial determination stage

of this claim, the claim was denied by a Single-Decision

Maker (“SDM”), and the State-Agency never had any

medical expert – physical or psychiatric – review any of

Mr. Pichardo’s medical records. (Tr. 128-37.) As a

result, Dr. Calev’s opinion is completely uncontradicted

by any other doctor or psychologist . . . .

(ECF No. 17, Plaintiff’s Reply Memorandum of Law in Further Support

(“Pl. Reply”), at 2.) Setting aside the issue of whether the ALJ

improperly assigned little weight to Dr. Calev’s opinion, the Court

agrees that, once the ALJ had determined he would not rely on the

treating psychologist’s medical opinion, he was obligated to

obtain some other substantial evidence on which to base his RFC.

As noted by the Plaintiff, this could have taken the form of a

psychiatric consultative examination, or medical expert testimony

at the hearing itself.

Because an ALJ is a layperson and not a medical doctor, the

ALJ may not interpret raw medical data when determining a social

security claimant's RFC. Figaro v. Comm'r of Soc. Sec., No. 1:21-

cv-4481 (PKC), 2022 WL 4647102, at *5 (E.D.N.Y. Sept. 30, 2022).

As a result, an ALJ who makes an RFC finding without a supporting

expert medical opinion “improperly substitute[s] his own opinion

for that of a physician” and thus “commit[s] legal error.”

Hilsdorf v. Comm'r of Soc. Sec., 724 F. Supp. 2d 330, 347 (E.D.N.Y.

2010). Indeed, the cases cited in the Commissioner’s opposition

on this point all generally involve a situation where an ALJ relied

upon other medical opinion evidence after rejecting a provider’s

opinion. See, e.g., Jasen v. Comm'r of Soc. Sec., No. 16-CV-

6153P, 2017 WL 3722454, at *12 (W.D.N.Y. Aug. 29, 2017) (“Here,

the record contained an opinion from another medical professional

regarding Jasen’s ability to perform the physical requirements of

work.”); Johnson v. Colvin, 669 F. App'x 44, 46 (2d Cir. 2016)

(“Taken together, Johnson's testimony and Dr. D'Angelo's letter

constitute ‘relevant evidence [that] a reasonable mind might

accept as adequate to support’ the conclusion that Johnson could

perform ‘light work.’”); Trepanier v. Comm'r of Soc. Sec. Admin.,

752 F. App'x 75, 79 (2d Cir. 2018) (“Dr. Moeckel’s assessment

provides substantial evidence supporting the ALJ’s determination

that Trepanier’s medical problems did not prevent him from

performing the lifting requirements of his past medium exertional

job.”).

The Court notes that an ALJ’s RFC determination may still be

valid even when it “does not perfectly correspond with any of the

opinions of medical sources cited in his decision.” Trepanier,

752 F. App'x at 79. Nonetheless, there must be some evidence

underlying the ALJ’s RFC, as to find otherwise would allow the ALJ

“to substitute his own expertise or view of the medical proof for

the treating physician's opinion.” Shaw v. Chater, 221 F.3d 126,

134 (2d Cir. 2000). Medical records and findings alone cannot

provide the substantial evidence necessary to make an RFC

determination in the absence of medical opinion evidence. See

Pearson v. Comm'r of Soc. Sec., No. 20-cv-3030 (AMD), 2021 WL

3373132, at *4 (E.D.N.Y. Aug. 3, 2021). Accordingly, the ALJ erred

in failing to develop the record further after rejecting the only

medical opinion regarding Plaintiff’s mental capabilities. On

remand, the ALJ should obtain additional medical evidence to assist

in determining Plaintiff’s mental RFC.

III. The ALJ Properly Rejected Vision Limitations

Dr. Pollack, the consultative examiner who evaluated

Plaintiff on October 27, 2014, opined that Plaintiff is “restricted

in activities which require fine visual acuity of the right eye,”

based on a vision examination which showed 20/50 vision in

Plaintiff’s right eye and 20/25 vision bilaterally without

glasses. (Tr. at 724-26.) At the hearing before the ALJ that

resulted in the decision at issue in the instant case, however,

Plaintiff did not testify regarding any visual restrictions. (Id.

at 44-64.) In an earlier hearing in February 2017, Plaintiff

testified before a different ALJ that he had “blurred vision” in

his right eye, but did not need glasses to read or drive. (Id. at

117-18.) Plaintiff also indicated in his August 2014 function

report that he did not use glasses or wear contact lenses. (Id.

at 477.) Ultimately, the ALJ did not include Dr. Pollack's vision

limitations in the determination of Plaintiff’s RFC.

Plaintiff contends that the ALJ erred when he gave little

weight to the vision limitations in Dr. Pollack's opinion. (Pl.

Mem. at 14.) Plaintiff maintains that the ALJ, who did not make

reference to the February 2017 testimony regarding Plaintiff’s

“blurred vision,” “either did not review the entire record by

failing to review the prior hearing transcripts, or . . .

intentionally ignored that prior testimony.” (Id.) As a result,

Plaintiff argues that the ALJ erred because the vision limitations

identified by Dr. Pollack should have been included in Plaintiff's

RFC.

The Court finds that the ALJ did not err in analyzing the

vision limitations discussed in Dr. Pollack's opinion. First, it

was not error, on this record, for the ALJ to conclude that

Plaintiff did not have a severe vision impairment. See 20 C.F.R.

§ 404.1521(a) (“An impairment or combination of impairments is not

severe if it does not significantly limit your physical or mental

ability to do basic work activities”). More importantly, the ALJ

did not err by declining to include any vision limitations in

Plaintiff's RFC determination. As the ALJ explained, Plaintiff

did not “did not testify to any vocational limitations due to a

vision impairment” and the record “does not show any regular

treatment for a vision impairment.” (Id. at 24.) Additionally,

though Plaintiff’s 2014 function report made reference to “blurry

vision” it also stated that he can “see very well” and did not

indicate any use of glasses or contact lenses. (Id. at 477.)

Furthermore, regarding Plaintiff’s February 2017 testimony, the

Court notes that it is not clear whether the testimony was intended

to explore Plaintiff’s vision problems as of the date of the

hearing in 2017, or prior to Plaintiff’s date last insured of March

31, 2016. (Id. at 117-18.) In the presence of such ambiguity and

a lack of explicit testimony about vision problems during the

relevant period in Plaintiff’s subsequent hearing in 2020, it was

reasonable for the ALJ to instead rely on evidence expressly

bearing on the relevant period.

As such, in reviewing the record as a whole, “[t]his was not

a situation where the ALJ needed a contrary medical opinion in

order to reject the vision limitations found by Dr. Pollack, a

consultative examiner who only examined Plaintiff once.” Cervini

v. Saul, No. 17-CV-2128 (JMA), 2020 WL 2615929, at *8 (E.D.N.Y.

May 21, 2020). Accordingly, in the absence of additional evidence

to the contrary, the ALJ did not err in rejecting the vision

limitation proposed by a consultative examiner.

IV. Remand to the Same ALJ to Develop the Record is Appropriate

Plaintiff also argues that the ALJ erred in his evaluation of

Plaintiff’s credibility regarding Plaintiff’s statements

concerning his symptoms and their impact on his functioning. (Pl.

Mem. at 22.) The Court declines to resolve this argument, however,

given the ALJ's failure to develop the record is a threshold

problem requiring remand, and the ALJ is expected to review his

credibility determination in the context of additional medical

opinion evidence.

Notwithstanding the above, the Court will address Plaintiff’s

separate argument that the instant case should be remanded solely

for calculation of benefits and should alternatively be heard

before a different ALJ. (Pl. Mem. at 20, 25.) The Second Circuit

has stated that “where the administrative record contains gaps

. . . [and] further findings would so plainly help to assure the

proper disposition of the claim, we believe that remand is

particularly appropriate.” Butts v. Barnhart, 388 F.3d 377, 385

(2d Cir. 2004) (internal quotation marks and citation omitted).

On the other hand, “where [the Second Circuit] has had no apparent

basis to conclude that a more complete record might support the

Commissioner's decision, we have opted simply to remand for a

calculation of benefits.” Rosa v. Callahan, 168 F.3d 72, 83 (2d

Cir. 1999). Here, there is a reasonable basis to conclude that a

more complete record might support the Commissioner’s decision

and, therefore, remand to further develop the record is

appropriate.

The ALJ assigned Dr. Calev’s opinion regarding Plaintiff’s

mental limitations “little weight” because he concluded that the

opinion was “not supported by mental status examinations, which

have been frequently within normal limits.” (Tr. at 24-25.) As

noted by the Commissioner, it is entirely proper for an ALJ to

compare a medical opinion to the underlying treatment records, as

otherwise “any treating source’s opinion [would become] self-

proving.” (ECF No. 16-1, Defendant’s Memorandum of Law in Support

(“Def. Mem.”), at 7); see also 20 C.F.R. § 404.1527(c)(2) (“If we

find that a treating source's medical opinion on the issue(s) of

the nature and severity of your impairment(s) is well-supported by

medically acceptable clinical and laboratory diagnostic techniques

and is not inconsistent with the other substantial evidence in

your case record, we will give it controlling weight.”) (emphasis

added).

Accordingly, the Court does not find compelling Plaintiff’s

argument that “the ALJ had no evidentiary basis to dismiss or

discount the treating psychologist’s assessment,” despite the gaps

in the record and the ALJ’s failure to further develop the record.

(Pl. Mem. at 20.) As noted by the Commissioner, an ALJ may accord

a medical opinion little weight based on contradictions with or a

lack of support in the record. Woodmancy v. Colvin, 577 F. App'x

72, 75 (2d Cir. 2014) (finding the ALJ was acting within her

discretion in according opinions “little weight because record

evidence of unremarkable clinical findings contradicted or failed

to support the limitations conclusions in [the] opinions”). The

Court agrees with Plaintiff that the ALJ had an affirmative duty

to fill the resulting gap in the record after dismissing the

opinion, and as such, remand is warranted. The Court finds that

there is a reasonable “basis to conclude that a more complete

record might support the Commissioner's decision” and that remand

solely for calculation of benefits is inappropriate. Rosa, 168

F.3d at 83. Instead, given the gaps in the record discussed

previously, the case shall be remanded for further proceedings.

Plaintiff also requests that the instant case should be heard

by a “different ALJ” in the event it is remanded for further

proceedings. (Pl. Mem. at 25.) Plaintiff makes this request in

passing at the end of his motion, and does not offer any arguments

beyond a citation to Sutherland v. Barnhart, 322 F. Supp. 2d 282,

292-93 (E.D.N.Y. 2004). As noted in Sutherland, courts weigh

several factors in considering whether remand to a new ALJ is

appropriate, including:

(1) a clear indication that the ALJ will not apply the

appropriate legal standard on remand; (2) a clearly

manifested bias or inappropriate hostility toward any

party; (3) a clearly apparent refusal to consider

portions of the testimony or evidence favorable to a

party, due to apparent hostility to that party; (4) a

refusal to weigh or consider evidence with impartiality,

due to apparent hostility to any party.

Id. at 292. Here, Plaintiff cites no portion of the hearing

transcript showing bias or hostility, and does not offer any other

evidence showing that the ALJ will not apply the appropriate legal

standard on remand. The Court’s review of the record reveals no

inappropriate comments or considerations in the ALJ’s decision or

conduct at the hearing warranting remand before a new ALJ.

Furthermore, the Court notes that the Appeals Council already

remanded the case to be heard before a new ALJ once, and although

Plaintiff has already had three hearings, only one was held before

the ALJ whose decision is being reviewed in the instant case. (Tr.

at 187-88.) Consequently, the Court finds remand to a different

ALJ unnecessary in light of the record as a whole.

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.

On remand, the ALJ shall:

(1) Further develop the record by seeking additional medical

opinion evidence or expert testimony regarding Plaintiff’s

mental impairments and capabilities, and address any such

evidence in assessing the severity of Plaintiff’s impairments

and, if necessary, in crafting Plaintiff’s RFC. The ALJ shall

also evaluate the Plaintiff’s credibility in light of the

newly developed record.

The Clerk of Court is respectfully directed to enter judgment

remanding this case, and to close the case.

SO ORDERED.

DATED: January 31, 2024 □ Yh —

Brooklyn, New York =) i ws le

HON. KIYO A. MATSUMOTO

United States District Judge

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