# Pichardo v. O'Malley

> District Court, E.D. New York · January 31, 2024

URL: https://www.frixlaw.com/law-library/cases/10311152

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 31, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10311152

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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

ASDRUBAL MARIANO PICHARDO,

Plaintiff,
MEMORANDUM AND ORDER
-against- 21-CV-2711 (KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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

32

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311152. Public record. Not legal advice.