# Perillo v. O'Malley

> District Court, N.D. New York · April 15, 2021

URL: https://www.frixlaw.com/law-library/cases/10313762

## Case

- **Court:** District Court, N.D. New York
- **Decided:** April 15, 2021
- **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/10313762

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10313762. Public record. Not legal advice.