Perillo v. O'Malley

NOUNRITTHEEDR SNT DAITSETSR DICISTT ORFIC NTE CWO YUORRTK

______________________________________________________________________

DOMINICK P.,

Plaintiff,

v. 3:20-CV-538

(ATB)

ANDREW SAUL,

Defendant.

______________________________________________________________________

PETER A. GORTON, ESQ., for Plaintiff

MICHAEL L. HENRY, Special Asst. U.S. Attorney for Defendant

ANDREW T. BAXTER, U.S. Magistrate Judge

MEMORANDUM-DECISION and ORDER

This matter was referred to me, for all proceedings and entry of a final judgment,

pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in

accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y.

Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 2, 7).

I. PROCEDURAL HISTORY

Plaintiff filed an application for Disability Insurance Benefits (“DIB”) on January

5, 2017 alleging disability beginning May 16, 2016. (Administrative Transcript (“T”)

at 98, 158, 197). His application was denied initially on March 31, 2017. (T. 99-102).

At the request of the plaintiff, Administrative Law Judge (“ALJ”) Robyn L. Hoffman

conducted a hearing on December 12, 2018, at which plaintiff gave testimony. (T. 46-

86).

In a decision dated March 5, 2019, the ALJ found that plaintiff was not disabled.

(T. 11-19). The ALJ’s decision became the Commissioner’s final decision when the

Appeals Council denied plaintiff’s request for review on April 9, 2020. (T. 1-4).

II. GENERALLY APPLICABLE LAW

A. Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI

disability benefits must establish that 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 twelve months . . . .” 42 U.S.C. § 1382c(a)(3)(A). In

addition, the plaintiff’s

physical or mental impairment or impairments [must be] of such severity

that he is not only unable to do his previous work but cannot, considering

his age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy, regardless

of whether such work exists in the immediate area in which he lives, or

whether a specific job vacancy exists for him, or whether he would be

hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

The Commissioner uses a five-step process, set forth in 20 C.F.R. sections

404.1520 and 416.920, to evaluate disability insurance and SSI disability claims.

First, the [Commissioner] considers whether the claimant is currently

engaged in substantial gainful activity. If he is not, the [Commissioner]

next considers whether the claimant has a “severe impairment” which

significantly limits his 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 meets or equals the criteria of an impairment listed in Appendix 1 of

the regulations. If the claimant has such an impairment, the

[vCoocamtimonisasli ofancetro ]r sw siullc hco anss aidgeer, hedimuc daitsioabnl,e adn wd iwthoorukt e cxopnesriideenrcien g. . . .

Assuming the claimant does not have a listed impairment, the fourth

inquiry is whether, despite the claimant’s severe impairment, he has the

residual functional capacity to perform his past work. Finally, if the

claimant is unable to perform his past work, the [Commissioner] then

determines whether there is other work which the claimant can perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520,

416.920. The plaintiff has the burden of establishing disability at the first four steps.

However, if the plaintiff establishes that her impairment prevents her from performing

her past work, the burden then shifts to the Commissioner to prove the final step. Id.

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine

whether the correct legal standards were applied and whether substantial evidence

supported the decision. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Brault v.

Soc. Sec. Admin, Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.

2012). It must be “more than a scintilla” of evidence scattered throughout the

administrative record. Id. However, this standard is a very deferential standard of

review “ – even more so than the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.

“To determine on appeal whether an ALJ’s findings are supported by substantial

evidence, a reviewing court considers the whole record, examining the evidence from

both sides, because an analysis of the substantiality of the evidence must also include

that which detracts from its weight.” Williams on behalf of Williams v. Bowen, 859

F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its

interpretation of the administrative record for that of the Commissioner, if the record

contains substantial support for the ALJ’s decision. Id. See also Rutherford v.

Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

An ALJ is not required to explicitly analyze every piece of conflicting evidence

in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles

v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ

explicitly to reconcile every conflicting shred of medical testimony). However, the ALJ

cannot “‘pick and choose’ evidence in the record that supports his conclusions.” Cruz

v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No.

09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).

III. FACTS

Plaintiff was born on September 15, 1982, making him 36 years old as of the date

of the administrative hearing. (T. 51). He lived in a house with his fiancée and 8 year-

old son. (T. 73-74). Plaintiff had a GED and his driver’s license, but drove

infrequently. (T. 53, 81). He also held a commercial driver’s license at one time, which

was expired at the time of the hearing. (T. 53-54). Prior to his alleged onset date,

plaintiff worked in various employment positions with significant lifting requirements,

including medical transport driver, hotel baggage handler, palletizer, lineman, and a

seasonal position at Lowes. (T. 55-64).

Plaintiff experienced back pain and muscle spasms since 2014, for which he

sought medical treatment through his primary care physician. (T. 68-69). In 2016,

plaintiff was working as a medical transport driver when he felt a pain in his right side

and became unable to get in and out of the van. (T. 65). Plaintiff was referred to a

specialist and learned that his his “L5 was protruding.” (T. 64). He was told that he

needed spine surgery to relieve the “pinching” of his sciatic nerve. (T. 64-65). Plaintiff

had lumbar surgery in May 2016. He did not return to work after the surgery, because

he could not physically perform the work. (T. 65-66). Since the surgery, plaintiff has

relied on his fiancée and mother for financial assistance. (T. 66-67). In November

2018, plaintiff was involved in a car accident. A CT scan revealed that his “L5 was

protruding,” and he had “a lot of inflammation.” (T. 71).

Plaintiff testified that he experienced back symptoms six to seven days out of the

week. (T. 69). The pain radiated from the bottom of his back to his right side. (T. 69-

70). Sometimes the pain radiated down his right leg into his heel. (T. 70). Although

surgery alleviated his leg pain to some extent, it did not resolve his back pain. (Id.).

The pain medication he took caused side effects including weakness, fatigue, and

shakiness. (T. 73). He usually rested for an hour during the day. (Id.). Plaintiff’s

fiancée performed the grocery shopping and household chores. (T. 74-75). Generally,

he spent his days lying in bed or in a chair. (T. 76). He woke from back pain every two

to four hours at night. (Id.).

IV. THE ALJ’S DECISION

The ALJ first found that plaintiff had not engaged in substantial gainful activity

since his application date of May 16, 2016. (T. 13-14). Next, at step two, the ALJ

found that plaintiff’s lumbar spine degenerative disc disease, status-post laminectomy,

was a severe impairment. (T. 14-15). At the third step, the ALJ determined that

plaintiff’s impairments did not meet or medically equal the criteria of any listed

impairments in Appendix 1 to 20 C.F.R. Part 404, Subpart P. (T. 15).

At step four, the ALJ found that plaintiff had the residual functional capacity to

perform the full range of light work. (T. 16). She specified that plaintiff could

occasionally lift and carry twenty pounds, frequently lift and carry ten pounds, sit for up

to six hours, and stand or walk for approximately six hours in an eight-hour workday

with normal breaks. (Id.).

Next, the ALJ determined that transferability was not an issue because plaintiff’s

past relevant work was unskilled. (T. 18). Based on an RFC for the full range of light

work, and “considering the [plaintiff’s] age, education, and work experience,” the ALJ

concluded that a finding of “not disabled” was directed by the Medical-Vocational

Guidelines. (Id.).

V. ISSUES IN CONTENTION

Plaintiff raises the following arguments in support of his position that the ALJ’s

decision is not supported by substantial evidence:

1. The ALJ improperly substituted her lay judgment for competent medical

opinion, and failed to properly weight the medical opinions of evidence.

(Plaintiff’s Brief (“Pl.’s Br.”) at 6-20) (Dkt. No. 11).

2. The ALJ failed to include any postural or non-exertional limitations. (Pl.’s

Br. at 20-22).

3. The ALJ failed to consult with a vocational expert. (Pl.’s Br. at 22-23).

4. The ALJ failed to develop the record. (Pl.’s Br. at 23-24).

Defendant argues that the ALJ properly considered the evidence of record, and

that the Commissioner’s decision is otherwise supported by substantial evidence.

(Defendant’s Brief (“Def.’s Br.”) at 13-40) (Dkt. No. 15). For the following reasons, the

court concludes that the ALJ’s RFC determination was not supported by substantial

evidence. As a result, the ALJ’s analysis at step five and the ultimate finding that

plaintiff was not disabled were tainted. Accordingly, the court orders a remand for

further administrative proceedings to adequately develop and assess the medical

evidence as necessary, in order to determine an RFC that is properly supported.

DISCUSSION

VI. RFC/WEIGHING EVIDENCE

A. Legal Standards

1. RFC

RFC is “what [the] individual can still do despite his or her limitations.

Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work

activities in an ordinary work setting on a regular and continuing basis. . . .” A “regular

and continuing basis” means eight hours a day, for five days a week, or an equivalent

work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL 252970, at *2

(N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)

(quoting SSR 96–8p, 1996 WL 374184, at *2)); Babcock v. Berryhill, No. 5:17-CV-

00580 (BKS), 2018 WL 4347795, at *12-13 (N.D.N.Y. Sept. 12, 2018); Tankisi v.

Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir. 2013); Stephens v. Colvin, 200 F.

Supp. 3d 349, 361 (N.D.N.Y. 2016).

In rendering an RFC determination, the ALJ must consider objective medical

facts, diagnoses, and medical opinions based on such facts, as well as a plaintiff’s

subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R.

§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)

(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)); Kirah D. v.

Berryhill, No. 3:18-CV-0110 (CFH), 2019 WL 587459, at *8 (N.D.N.Y. Feb 13, 2019);

Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). An ALJ must specify the functions

plaintiff is capable of performing, and may not simply make conclusory statements

regarding a plaintiff’s capacities. Roat v. Barnhart, 717 F. Supp. 2d 241, 267

(N.D.N.Y. 2010); Martone v. Apfel, 70 F. Supp. 2d at 150 (citing Ferraris v. Heckler,

728 F.2d 582, 588 (2d Cir. 1984); LaPorta v. Bowen, 737 F. Supp. at 183, Stephens v.

Colvin, 200 F. Supp. 3d 349, 361 (N.D.N.Y. 2016); Whittaker v. Comm’r of Soc. Sec.,

307 F. Supp. 2d 430, 440 (N.D.N.Y. 2004). The RFC assessment must also include a

narrative discussion, describing how the evidence supports the ALJ’s conclusions,

citing specific medical facts, and non-medical evidence. Natashia R. v. Berryhill, No.

3:17-CV-01266 (TWD), 2019 WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (citing

SSR 96-8p, 1996 WL 374184, at *7).

2. Weight of the Evidence/Treating Physician

In making a determination, the ALJ weighs all the evidence of record and

carefully considers medical source opinions about any issue. SSR 96-5p, 1996 WL

374183, at *2-3 (1996). Under 20 C.F.R. §§ 404.1527(e) and 416.927(e), some issues

are not “medical issues,” but are “administrative findings.” The responsibility for

determining these issues belongs to the Commissioner. See SSR 96-5p, 1996 WL

374183, at *2. These issues include whether the plaintiff’s impairments meet or equal a

listed impairment; the plaintiff’s RFC; how the vocational factors apply; and whether

the plaintiff is “disabled” under the Act. Id.

In evaluating medical opinions on issues that are reserved to the Commissioner,

the ALJ must apply the factors listed in 20 C.F.R. §§ 404.1527(d) and 416.927(d). The

ALJ must clearly state the legal rules that he applies and the weight that he accords the

evidence considered. Drysdale v. Colvin, No. 14-CV-722, 2015 WL 3776382, at *2

(S.D.N.Y. June 16, 2015) (citing Rivera v. Astrue, No. 10 Civ. 4324, 2012 WL

3614323, at *8 (E.D.N.Y. Aug. 21, 2012) (citation omitted)).

“Although the treating physician rule generally requires deference to the medical

opinion of a claimant’s treating physician, . . . the opinion of the treating physician is

not afforded controlling weight where . . . the treating physician issued opinions that

are not consistent with other substantial evidence in the record . . . .” Halloran v.

Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); Veino v. Barnhart, 312 F.3d 578, 588 (2d

Cir. 2002); 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If an ALJ decides not to give

the treating source’s records controlling weight, then he must explicitly consider the

four Burgess factors: “(1) the frequen[cy], length, nature, and extent of treatment; (2)

the amount of medical evidence supporting the opinion; (3) the consistency of the

opinion with the remaining medical evidence; and (4) whether the physician is a

specialist.” Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019) (quoting Burgess v.

Astrue, 537 F. 3d 117, 120 (2d Cir. 2008)). “[T]he ALJ must ‘give good reasons in [its]

notice of determination or decision for the weight [it gives the] treating source’s

[medical] opinion.’ ” Id. at 96 (citing Halloran v. Barnhart, 362 F.3d at 32). Should an

ALJ assign less than controlling weight to a treating physician’s opinion and fail to

consider the above-mentioned factors, this is a procedural error. Id. It is impossible to

conclude that the error is harmless unless a “searching review of the record . . . assures

us that the substance of the treating physician rule was not traversed.” Id.

B. Application

Plaintiff makes several arguments challenging the ALJ’s evaluation of the

medical opinion evidence and RFC evaluation. Specifically, plaintiff contends that the

ALJ failed to properly apply the treating physician rule in weighing the opinion of Dr.

Jimenez. Plaintiff also argues that the ALJ improperly substituted her lay judgment for

competent medical opinion, pointing out the absence of any formal medical opinion

explicitly supporting the ALJ’s RFC determination for light work. In response, the

Commissioner encourages this court to adopt its interpretation of Second Circuit

precedent regarding the treating physician rule, and to reject the plaintiff’s argument

that the rule was not properly adhered to. Defendant also maintains that the ALJ “was

not required to tether her RFC assessment to a medical opinion.”

It is undisputed that the only formal medical opinion of record explicitly

considered by the ALJ was the October 23, 2018 questionnaire prepared by plaintiff’s

primary care physician, Domingo Jimenez, M.D. (T. 379-80). In his assessment, Dr.

Jimenez opined that plaintiff’s diagnoses, which included lumbar disc disease with

work pace. (T. 379). He indicated that plaintiff would be off task during the work day

for a period of “greater than 20% but less than 33%.” (Id.). Dr. Jimenez further opined

that plaintiff would have good days and bad days, resulting in work absences of more

than four days per month. (T. 379-80). With respect to plaintiff’s functional capacities,

Dr. Jimenez opined that plaintiff could sit for approximately two hours out of an eight

hour work-day, and could “stand/walk” for approximately one hour out of an eight hour

work day. (T. 380). Dr. Jimenez estimated that plaintiff should change positions

approximately every 15 minutes. (Id.). Last, Dr. Jimenez opined that in the context of

the work environment, plaintiff could frequently (up to 2/3 of the day) lift up to five

pounds, occasionally (up to 1/3 of the day) lift between five to ten pounds, and should

never lift over ten pounds. (Id.).

The ALJ referenced Dr. Jimenez’s opinion in her decision, citing the physician’s

opined functional limitations as described above. (T. 17). The ALJ went on to state:

I give this opinion limited weight, as the extreme limitations

opined are not consistent with the objective evidence of record,

including the conservative course of treatment prescribed,

encouragement that the claimant pursue increased exercise, and

the claimant’s declining of ongoing physical therapy.

(Id.).

The court has considered the parties’ dispute over which Second Circuit

decisions state the proper standard for the deference attributable to analyzing a treating

1Dr. Jimenez also listed that plaintiff suffered from “Adjustment Disorder” and “Mild

Intermittent Asthma.” (T. 379).

analyzing a treating physician’s opinion, it remains axiomatic that if an ALJ assigns the

opinion of a treating physician less than controlling weight, it is incumbent upon that

ALJ to explicitly consider the Burgess factors in explaining the weight ultimately

assigned. See Estrella, 925 F.3d at 95-96 (“Social Security Administration regulations,

as well as our precedent, mandate specific procedures that an ALJ must follow in

determining the appropriate weight to assign a treating physician’s opinion . . . . [I]f the

ALJ decides the opinion is not entitled to controlling weight . . . it must ‘explicitly

consider’ the following, nonexclusive ‘Burgess factors.’”).

Here, the ALJ failed to properly assess the Burgess factors when she chose to

give limited weight to the opinion of Dr. Jimenez. For example, the ALJ did not

consider the first Burgess factor – “the frequency, length, nature, and extent of [Dr.

Jimenez’s] treatment” – before weighing the value of the opinion. The record reflects

that plaintiff maintained a treatment relationship with his primary care physician over

the span of five years, yet this consideration is noticeably absent from the ALJ’s

decision. Nor did the ALJ explicitly address the second Burgess factor – “the amount

of medical evidence supporting [Dr. Jimenez’s] opinion.” Instead, the ALJ, in

2The parties have devoted a significant portion of their briefs to discussing the appropriate

standard by which a treating physician’s opinion may be considered. (See Def.’s Br. at 14-25;

Plaintiff’s Reply Brief at 1-5; Defendant’s Sur-Reply at 1-7). Namely, the parties dispute

whether an ALJ may “consider the quality of a treating source’s opinion before deferring to it (as

per Schisler III [v. Sullivan, 3 F.3d 563 (2d Cir. 1993)] and the regulations), or whether the

opinion must be credited unless the ALJ can marshal ‘overwhelmingly compelling’ [evidence] to

rebut it (as per Wagner [v. Sec. of Health & Human Servs., 906 F.2d 856, 861-62 (2d Cir. 1990)]

and its progeny.).” (Def.’s Br. at 17).

objective evidence of record.” A more thorough consideration of what evidence

supported the treating physician’s conclusions, instead of focusing solely on the

evidence that, arguably, did not support his conclusions, may have led to a different

analysis. In any event, the ALJ’s failure to explicitly articulate all of the required

Burgess factors constitutes procedural error. Estrella, 925 F.3d at 95-96.

Thus, the Court must determine if “the substance of the treating physician rule”

was “traversed” by examining whether the ALJ provided “good reasons” for her weight

assignment. Id. at 96. Here, the ALJ explained that she gave limited weight to Dr.

Jimenez’s opinion because his opined limitations were inconsistent with “the

conservative course of treatment prescribed, encouragement that the claimant pursue

increased exercise, and the claimant’s declining of ongoing physical therapy.” (T. 17).

Without additional detail or support, however, the court cannot agree that these out-of-

context remarks support the ALJ’s rejection of Dr. Jimenez’s opinion. For example, the

record does not reflect that plaintiff outright refused treatment, as the ALJ suggests.

Instead, the relevant office notes indicate that plaintiff was reluctant because he had

tried physical therapy without success, and was interested in moving on to other forms

of treatment, such as pain management.3 It appears that Dr. Jimenez did encourage him

to re-attempt physical therapy at one point. (T. 333).

Moreover, the ALJ’s finding of inconsistency based on a perceived “conservative

3See T. 322 (“. . . [plaintiff] states he tried PT in the past but did not find it helpful.”); T.

324 (“. . . went to physical therapy and after trying back strengthening techniques, but continued

to have pain in (bilateral) hips, so stopped PT.”).

controlling weight to Dr. Jimenez’s opinion. At the outset, the court hardly agrees that

plaintiff’s treatment regiment for his back condition – including a surgical lumbar

discectomy4 and prescription pain medication – constitutes conservative treatment. In

addition, the Second Circuit has held that “[t]he opinion of the treating physician is not

to be discounted merely because he has recommended a conservative treatment

regimen.” Burgess, 537 F.3d at 129; Foxman v. Barnhart, 157 Fed. App’x 344, 347 (2d

Cir. 2005) (“the ALJ erred in questioning the validity of [the treating physician’s]

opinion based on his ‘conservative’ course of treatment”).5

For these reasons, the court finds that the ALJ erred by failing to provide good

reasons for assigning limited weight to Dr. Jimenez’s opinion. “The requirement that

the Commissioner provide good reasons is particularly important in cases where, as

here, ALJs issue decisions unfavorable to claimants because those reasons allow

claimants to better understand the dispositions of their cases.” Sink v. Berryhill, No.

4Defendant asks this court to disregard plaintiff’s back surgery when considering whether

plaintiff’s course of treatment was conservative, because “plaintiff’s May 2016 surgery marked

the beginning of plaintiff’s alleged period of disability and was considered a great success.”

(Def.’s Br. at 27). Defendant’s characterization of plaintiff’s surgical results appear to be taken

from a note from his neurosurgeon indicating that plaintiff was doing “extremely well” one

month after his discectomy. Nevertheless, a thorough review of plaintiff’s post-operative

medical records reveals that plaintiff’s low back pain and extremity numbness persisted despite

the surgery.

5The court recognizes the Summary Order cited by defendant, Tricarico v. Colvin, 681 F.

App’x 98, 100-01 (2d Cir. 2017) (summary order), which upheld an ALJ’s decision to afford

limited weight to a treating physician’s assessment based on, among other things, a conservative

course of treatment. In this case, however, the court does not find the “other” evidence to be as

compelling as the evidence set forth in Tricarico, which included other, less restrictive medical

opinions, evidence of claimant’s activities of daily living, and the claimant’s apparent declination

of surgical care recommended by multiple providers. Id.

at 134).

The ALJ’s error in assessing Dr. Jimemez’s opinion is compounded by her RFC

determination, which this court agrees lacks support by substantial evidence in the

record. “[I]t is well-established that an ALJ is not qualified to assess a claimant’s RFC

on the basis of bare medical findings, and as a result an ALJ’s determination of RFC

without a medical advisor’s assessment is not supported by substantial evidence.”

Agostino v. Comm’r of Soc. Sec., No. 18-CV-1391, 2020 WL 95421, at *3 (W.D.N.Y.

Jan. 8, 2020) (quotation omitted). An ALJ’s “ability to make inferences about the

functional limitations that an impairment poses does not extend beyond that of an

ordinary layperson.” Id.; see also Roberts v. Comm’r of Soc. Sec., No. 17-CV-6817,

2019 WL 1298529, at *4 n.4 (W.D.N.Y. Mar. 21, 2019) (noting that an ALJ is “not a

doctor” and may not “substitute [her] own judgment for competent medical opinion”).

Accordingly, unless an RFC determination is “so simple and mild” that an ALJ can

construct it “based on common sense,” the RFC determination must be “supported by

medical opinions.” Carla S. v. Comm’r of Soc. Sec., No. 19-CV-1405, 2020 WL

7021441, at *3 (W.D.N.Y. Nov. 30, 2020). “Courts have not hesitated to remand a case

for further proceedings where the ALJ’s RFC finding is not supported by any medical

opinion.” Timothy S. v. Comm’r of Soc. Sec., No. 19-CV-1141, 2021 WL 661392, at *1

(W.D.N.Y. Feb. 19, 2021) (citing inter alia Ramos v. Saul, No. 18-CV-7465, 2020 WL

416413, at *6 (S.D.N.Y. Jan. 27, 2020) (collecting cases)).

In this case, it is undisputed that the ALJ crafted an RFC determination for light

record was Dr. Jiminez’s opinion, the functional limitations in which were rejected by

the ALJ as discussed above. Moreover, in her RFC analysis the ALJ did not cite to any

informal medical opinions specifically supporting plaintiff’s functional capacities, but

instead provides a limited summary of the clinical findings and examination results

found in plaintiff’s treatment notes to support her conclusion that “the objective

evidence of record fails to support the level of severity alleged by the claimant.” (T.

16). Based on this information, the ALJ crafted an RFC determination for the full

range of light work, endorsing plaintiff’s ability to, among other things, occasionally

carry 20 pounds, frequently carry ten pounds, sit for six hours, and stand or walk for

approximately six hours in an eight-hour workday. (Id.). In doing so, the ALJ

“impermissibly reviewed the bare medical findings and translated them into functional

assessments.” McKee v. Comm’r of Soc. Sec., No. 1:18-CV-01013, 2020 WL 1283884,

at *4 (W.D.N.Y. Mar. 18, 2020), see also Henderson v. Berryhill, 312 F. Supp. 3d 364,

371 (W.D.N.Y. 2018) (holding the ALJ’s RFC finding was improper “[i]n the absence

of the medical opinions rejected by the ALJ” and where the ALJ relied upon “raw

medical data” in the plaintiff’s treatment notes).

In arguing that the ALJ’s RFC determination is supported by substantial

evidence, the Commissioner cites to various Second Circuit decisions for the

proposition that an ALJ is permitted to draw inferences from underlying medical

evidence to determine a claimant’s RFC. These cases, however, are easily

distinguished from the matter presently before this court. For example, Monroe v.

not contain a formal medical source statement or opinion if it otherwise contains a

useful assessment of a claimant’s functional abilities from another medical source.”

Gregorio C. v. Comm’r of Soc. Sec., No. 1:19-CV-01027, 2021 WL 262286, at *4

(W.D.N.Y. Jan. 27, 2021) (emphasis added) (citing Monroe, 676 F. App’x at 8-9).

However, as is the case here, “[w]here the record does not contain a useful assessment

of plaintiff’s physical limitations, Monroe is of no help to the Commissioner.” Id.

(quoting Bartha v. Comm’r of Soc. Sec., No. 18-CV-0168, 2019 WL 4643584, at *3

(W.D.N.Y. Sept. 24, 2019)).

Likewise, the Commissioner’s reliance on Tankisi v. Comm’r of Social Sec., 521

F. App’x 29, 33-34 (2d Cir. 2013) is misplaced. There, the Second Circuit held that an

ALJ was not required to seek a medical source statement or formal medical opinion in

determining the claimant’s RFC where the medical record was voluminous and

included an assessment of the claimant’s limitations from a physician. In this case,

unlike in Tankisi, the plaintiff’s medical record is minimal and does not include any

assessment of the plaintiff’s physical limitations. “While in some circumstances, an

ALJ may make an RFC finding without . . . opinion evidence, the RFC assessment will

be sufficient only when the record is clear and contains some useful assessment of the

claimant’s limitations from a medical source.” Muhammad v. Colvin, No. 6:16-CV-

6369, 2017 WL 4837583, at *4 (W.D.N.Y. Oct. 26, 2017) (internal quotations omitted).

However, where the record is devoid of a useful assessment of the plaintiff’s

limitations, remand is warranted. See e.g. Schwartz v. Comm’r of Soc. Sec., No. 17-CV-

Sec., 350 F. Supp. 3d 252, 260 (W.D.N.Y. 2018).

Because this matter requires remand for the ALJ to reevaluate the medical

evidence and plaintiff’s RFC, the court need not address plaintiff’s remaining

arguments on the merits. Upon remand, the ALJ should request medical source

statements and updated treatment records from plaintiff’s treating providers, including

the physical therapy and pain management records noted by plaintiff to be absent from

the administrative record. The ALJ should also consider ordering a consultative

examination. As appropriate, upon remand the ALJ should otherwise consider each of

the other alleged errors not discussed in this decision in rendering a disability

determination. See Critoph v. Berryhill, No. 1:16-CV-00417, 2017 WL 4324688, at *4

(W.D.N.Y. Sept. 28, 2017) (“The ALJ is instructed to consider these additional

arguments on remand.”); Bell v. Colvin, No. 5:15-CV-01160 (LEK), 2016 WL

7017395, at *10 (N.D.N.Y. Dec. 1, 2016) (declining to reach arguments “devoted to the

question whether substantial evidence supports various determinations made by [the]

ALJ” where the court had already determined remand was warranted); Morales v.

Colvin, No. 13-CV-6844, 2015 WL 13774790, at *23 (S.D.N.Y. Feb. 10, 2015) (the

court need not reach additional arguments regarding the ALJ’s factual determinations

“given that the ALJ’s analysis may change on these points upon remand.”)

WHEREFORE, based on the findings above, it is

ORDERED, that the decision of the Commissioner is REVERSED and this case

REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings

consistent with this Memorandum-Decision and Order, and it is

ORDERED, that the Clerk enter judgment for PLAINTIFF.

Dated: April 15, 2021 th how Be lo

Andrew T. Baxter

U.S. Magistrate Judge

19