Ravenell v. Saul

NORTHERN DISTRICT OF NEW YORK

ISACC R.,1

Plaintiff,

v. 3:20-CV-1172

(ATB)

KILOLO KIJAKAZI,

Defendant.

JUSTIN M. GOLDSTEIN, ESQ., for Plaintiff

JAMES J. NAGELBERG, Special Asst. U.S. Attorney, for Defendant

ANDREW T. BAXTER

United States 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. 4, 5).

I. PROCEDURAL HISTORY

On January 31, 2018, plaintiff protectively filed concurrent applications for

Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”),

alleging that he became disabled on April 1, 2013. (Administrative Transcript (“T”) 78,

79, 177–201). Plaintiff’s applications were denied initially on April 13, 2018. (T. 78,

79, 98–112). Plaintiff requested a hearing, which was held by video conference on

1 In accordance with recent guidance from the Committee on Court Administration and Case

Management of the Judicial Conference of the United States, which was adopted by the Northern

District of New York in June 2018 in order to better protect personal and medical information of non-

governmental parties, this Memorandum-Decision and Order will identify the plaintiff using only his

27–49). At the hearing, plaintiff’s representative amended the alleged disability onset

date to January 31, 2018. (T. 30). Plaintiff and Vocational Expert (“VE”) Joseph

Atkinson also testified at the hearing. (Id.). ALJ Theurer issued an unfavorable

decision on August 26, 2019 (T. 7–21), which became the Commissioner’s final

decision when the Appeals Council denied plaintiff’s request for review on July 30,

2020 (T. 1–6).

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 [she] is not only unable to do [her] previous work but cannot,

considering [her] 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

[she] lives, or whether a specific job vacancy exists for [her], or whether

[she] would be hired if [she] applied for work

42 U.S.C. § 1382(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.

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

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

significantly limits [her] 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

[Commissioner] will consider [her] disabled without considering

vocational factors such as age, education, and work experience …

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

inquiry is whether, despite the claimant’s severe impairment, [she] has the

residual functional capacity to perform [her] past work. Finally, if the

claimant is unable to perform [her] 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.

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., Monguer v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles

v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (Finding 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 (W.D.N.Y. Dec. 6, 2010).

III. FACTS

Plaintiff was 34 years old on the date of the administrative hearing. He lived in a

house with his wife and three young children. (T. 31–32).

After graduating high school, plaintiff entered the Air Force as an aircraft

armament specialist. He was “booted” two weeks before transfer to his first duty

station for misconduct. (T. 32–33). He testified that his discharge was eventually

modified to “honorable.” (T. 33). Plaintiff also had a history of working for a food

most recently employed with National Pipe & Plastic (“NPP”), a manufacturer of PVC

pipes. (T. 34). There, plaintiff worked as a line runner, a forklift operator, and loader

in the delivery yard. (T. 35–37). He “could lift 250 [pounds] before [his] back started

going.” (T. 35). Plaintiff was fired from this position after he accidently ran over a

coworker with a forklift, who died as a result. (T. 35, 37). Plaintiff testified that he

never went back to work after the forklift accident, because his “mental state wasn’t

right.” (T. 38). He became “more agitated, especially around people.” (Id.).

Plaintiff did not like being outside or around people. He believed this precluded

him from working any job. (T. 38, 41). He had difficulty shopping in crowded stores,

and became “belligerent and edgy.” (Id.). At one point during his employment with

NPP, he threatened to throw his foreman into the grinder for being disrespectful. (T.

39). Plaintiff took a variety of medications for his mental health conditions. (T.

39–40). He drank alcohol and occasionally smoked marijuana to help with his anxiety.

(T. 40). Although plaintiff had a remote history of an overdose and suicide attempt, he

testified that he had not had any thoughts of suicide since his daughters were born. (T.

42). Plaintiff took care of his children during the day while his wife was at work, with

the assistance of his father and his father’s girlfriend. (T. 40–41).

There is a substantial amount of medical evidence in the administrative record,

and plaintiff has provided a summary of the medical evidence in his brief. Rather than

reciting the evidence at the outset, I will discuss the relevant material in my analysis of

plaintiff’s claims.

At step one of the sequential evaluation, the ALJ found that plaintiff had not

engaged in substantial gainful activity since January 31, 2018, the alleged onset date.

(T. 12). At step two, the ALJ found that plaintiff had the following severe impairments:

schizoaffective disorder; anxiety; depression; and Post-Traumatic Stress Disorder. (T.

13) The ALJ found that plaintiff’s hypertension and prior knee injury were not severe.

(Id.). While the ALJ recognized reports from the record that plaintiff sometimes

experienced lower back pain, he found this condition did not reach the threshold of a

medically determinable impairment in the absence of a confirmed diagnosis by an

acceptable medical source related to these symptoms. (Id.)

At step three of the sequential evaluation, the ALJ found that the severity of

plaintiff’s impairments did not meet or equal the severity of a listed impairment. (T.

14–15). At step four, the ALJ found that plaintiff had the residual functional capacity

to perform

a full range of work at all exertional levels but with the following

nonexertional limitations: the [plaintiff] retains the ability to

understand and follow simple instructions and directions; perform

simple tasks with supervision and independently; maintain

attention/concentration for simple tasks; and regularly attend to

a routine and maintain a schedule. He can relate to and interact

with coworkers and supervisors to the extent necessary to carry

out simple tasks – i.e., he can ask for help when needed, handle

conflicts with others; state his own point of view; initiate or

sustain a conversation and understand and respond to physical,

verbal and emotional social cues; but, he should avoid work

requiring more complex interaction or joint efforts with

coworkers to achieve work goals. The [plaintiff] should have no

more than occasional contact with coworkers and supervisors, and

should have no more than incidental contact with the public. He

he can make simple decisions directly related to the completion

of his tasks in a stable, unchanging work environment.2

(T. 15–16).

Next, the ALJ determined that plaintiff was unable to perform any past relevant

work. However, the ALJ evaluated the VE’s testimony and found that plaintiff was

capable of making a successful adjustment to other work that exists in significant

numbers in the national economy. (T. 19–20). Thus, the ALJ found that plaintiff was

not disabled from January 31, 2018 through the date of his decision. (T. 21).

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 determined that plaintiff’s back disorder was neither a

medically determinable impairment, nor a severe impairment. (Plaintiff’s

Brief (“Pl.’s Br.”) at 11–12) (Dkt. No. 16).

2. The ALJ improperly assessed the medical opinions of record. (Pl.’s Br.

13–19, 20–23).

3. The ALJ failed to develop the record as to plaintiff’s mental health

treatment notes. (Pl.’s Br. at 19–20).

4. The ALJ substituted his own lay opinion for that of an acceptable medical

source by equating plaintiff’s activities of daily living with an ability to

perform full-time work. (T. 23–25).

5. The ALJ failed to consider the impact of plaintiff’s mental limitations, as

set forth in the RFC determination, on plaintiff’s ability to endure full-time

2The ALJ defined incidental as “more than never and less than occasional; simply put, the job

should not involve direct interaction with the public, but the person does not need to be isolated away

from the public.” (T. 16).

Defendant argues that the Commissioner’s decision is supported by substantial

evidence. (Defendant’s Brief (“Def.’s Br.”) at 4–24) (Dkt. No. 21). For the following

reasons, this court finds that the ALJ’s step two determination was not supported by

substantial evidence, and remand is therefore warranted.

VI. MEDICALLY DETERMINABLE IMPAIRMENT

A. Legal Standards

In order to be found disabled, a claimant must show that he is unable to perform

any substantial gainful activity by reason of a medically determinable physical or

mental impairment that can be expected to result in death or that has lasted or can be

expected to last for a continuous period of not less than 12 months. 20 C.F.R. §§

404.1505(a), 416.905(a). “Consequently, only impairments that are ‘medically

determinable impairments’ can be considered in the disability analysis.” Flower v.

Comm’r of Soc. Sec., No. 6:16-CV-1084 (GTS), 2018 WL 895579, at *5 (N.D.N.Y.

Feb. 13, 2018).

In order to qualify as a medically determinable impairment, an impairment “must

result from anatomical, physiological, or psychological abnormalities which can be

shown by medically acceptable clinical or laboratory diagnostic techniques.3 Therefore,

3Diagnostic techniques include chemical tests (such as blood tests), electrophysiological studies

(such as electrocardiograms and electroencephalograms), medical imaging (such as X–rays), and

psychological tests. 20 C.F.R. §§ 404.1502(c), 416.902(c).

from an acceptable medical source.” 20 C.F.R. §§ 404.1521, 416.921; §§ 404.1529,

416.929; Woodard v. Berryhill, No. 3:17-CV-1124, 2018 WL 3536084, at *4 (D. Conn.

July 23, 2018) (internal quotation marks, citations and brackets omitted). Furthermore,

the evidence must “show the existence of a medical impairment(s) . . . which could

reasonably be expected to produce the pain or other symptoms alleged.” 20 C.F.R. §§

404.1529(b), 416.929(b). The existence of a medically determinable impairment is not

established by a claimant’s “statement of symptoms, a diagnosis, or a medical

opinion[.]” Id. A claimant bears the burden of establishing that he or she has a

medically determinable impairment. Woodard v. Berryhill, 2018 WL 3536084, at *4.

B. Application

Plaintiff argues that the ALJ improperly determined that plaintiff’s back pain was

neither a medically determinable impairment, nor a severe impairment. Plaintiff further

contends that the ALJ’s failure to appropriately qualify plaintiff’s back pain at step two

prejudiced plaintiff later in the sequential analysis, to the extent plaintiff’s physical

limitations were not considered in the RFC determination.

At step two, the ALJ found the following:

The record include[s] reports from the [plaintiff] that he

sometimes experiences lower back pain. However, no acceptable

medical source has confirmed a diagnosis related to these

4Objective medical evidence means signs, laboratory findings, or both. Signs mean one or more

anatomical, physiological, or psychological abnormalities that can be observed, apart from your

statements (symptoms). Signs must be shown by medically acceptable clinical diagnostic techniques.

20 C.F.R. §§ 404.1502(f–g), 416.902(f–g).

pain when presenting for treatment [ ]. In the absence of

substantiating evidence during the period at issue, subjective

complaints cannot establish a medically determinable impairment,

no matter how intensely expressed. Due to a lack of objective

medical evidence, the [plaintiff’s] lower back pain does not reach

the threshold of a medically determinable impairment.

(T.13).

Although this court stops short of concluding as a matter of law that plaintiff’s

back pain was, in fact, a medically determinable impairment, the ALJ’s reasoning with

respect to plaintiff’s back pain at step two was not the result of proper application of the

correct legal principles, nor supported by substantial evidence. At the outset, the record

reflects that plaintiff did have a confirmed diagnosis from an acceptable medical source

relative to his symptoms. Plaintiff sought treatment for back pain with his primary care

provider, NP Scott Rosman. Pursuant to the new regulations which apply to disability

applications such as plaintiff’s, which were filed after March 27, 2017, a nurse

practitioner is classified as an acceptable medical source. 20 C.F.R. §§ 416.902(a)(7),

404.1502(a)(7).

Although the evidence suggests that plaintiff may have historically treated for

episodes of back pain with NP Rosman, the first time plaintiff complained of back pain

in the record before this court is reflected in a February 6, 2018 treatment note. (T.

578). At that time, NP Rosman assessed plaintiff to have “chronic bilateral low back

pain without sciatica,” and recommended conservative treatment for the same. (T.

583). When plaintiff returned the following month with continuing complaints of back

pain, NP Rosman prescribed muscle relaxers and offered physical therapy, which the

heavy lifting. (T. 774). Plaintiff complained of continuing back pain in October 2018

(T. 797), and on December 17, 2018, plaintiff indicated that his back pain was sharp

and aggravated by lifting heavy objects and doing dishes. (T. 804). He also reported

that muscle relaxers weren’t helping. (Id.). NP Rosman once again noted plaintiff’s

diagnosis of “chronic low back pain,” with continued recommendations for

conservative treatment. (T. 808). Plaintiff returned to NP Rosman with ongoing

complaints of back pain on March 19, 2019. (T. 811).

Moreover, the record contains a December 13, 2017 medical opinion from NP

Rosman, wherein he specifically identifies “chronic back pain” as one of plaintiff’s

physical health diagnoses. (T. 576). In the opinion, NP Rosman assessed that plaintiff

was significantly limited in his ability to walk, stand, bend, lift, and carry, as a result of

his diagnoses. (Id.). The ALJ addressed NP Rosman’s opinion at step two, finding that

it was not persuasive for, among other reasons, having been rendered “well before the

period at issue.” (T. 14). This is nonsensical – NP Rosman’s opinion was prepared a

little over one month before plaintiff’s alleged onset date. If anything, the fact that NP

Rosman identified plaintiff’s diagnosis of chronic back pain at the outset of plaintiff’s

period of alleged disability, during which he continued to seek treatment for the same

condition, only substantiates to this court that the duration requirement relative to

plaintiff’s back pain was met. In any event, the ALJ’s representation that the record is

devoid of a diagnosis from an acceptable medical source relative to plaintiff’s back pain

is without merit, and does not constitute substantial evidence for the ALJ’s step two

The ALJ also concluded that the record was devoid of any objective,

substantiating evidence relative to plaintiff’s back pain during the period at issue. (T.

13). Admittedly, NP Rosman’s treatment records did not include any in depth physical

examinations, and the record is devoid of relevant medical imaging studies. However,

the two medical opinions which the ALJ found to be “persuasive accounts of the

[plaintiff’s physical] functioning” contradict the ALJ’s step two determination, and the

ALJ’s failure to reconcile these medical experts’ findings with his treatment of their

opinions constituted further error.

At step two, the ALJ first recognized the “persuasive” opinion of consultative

examiner Gilbert Jenouri, M.D. (T. 13). Upon physical examination, Dr. Jenouri found

that plaintiff had a normal gait, walked on his heels with difficulty, and had a normal

stance. (T. 731). Plaintiff did not require assistance getting on and off the examination

table. (Id.). However, during the same examination Dr. Jenouri found that plaintiff

exhibited a limited range of motion in his lumbar spine, and positive straight leg raises

while supine. (T. 732). Dr. Jenouri diagnosed plaintiff with, among other things,

“occasional low back pain,” and assessed him to have “mild restriction walking and

standing long periods, bending, stair climbing, lifting and carrying.” (Id.). The ALJ

did not discuss why Dr. Jenouri’s examination findings did not constitute objective

evidence that plaintiff’s back pain was medically determinable, other than noting that

the consultative examiner’s findings were “mild.” (T. 13). However, this conclusion is

at odds with the governing legal standard for analyzing claims at step two. See Patrick

(N.D.N.Y. Feb. 22, 2019) (“[T]he step two analysis ‘may do no more than screen out de

minimis claims.’ ”) (quoting Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995));

Matthew P. v. Comm’r of Soc. Sec., No. 3:20-CV-01586 (TWD), 2021 WL 5629070, at

*6–7 (N.D.N.Y. Dec. 1, 2021) (acknowledging plaintiff’s de minimis burden at step

two of the sequential evaluation process, and finding that the ALJ’s failure to

acknowledge relevant evidence, or to explain its implicit rejection, is plain error).

The ALJ also found the opinion of state agency consultant Annamalai

Periakaruppan, M.D., to be a more persuasive account of plaintiff’s physical

functioning than that of NP Rosman. Upon review of the medical evidence, Dr.

Periakaruppan acknowledged plaintiff’s treatment for complaints of back pain, as well

as Dr. Jenouri’s findings upon physical examination. (T. 69). Dr. Periakaruppan went

on to identify “sprains and strains - all types” as one of plaintiff’s medically

determinable impairments. (T. 70). She rated it as “non-severe.” (Id.). Although a

reasonable interpretation of this evidence would lead to the conclusion that Dr.

Periakaruppan’s reference to sprains and strains included plaintiff’s back pain, the ALJ

ignored this opinion and merely cited the state agency consultant’s determination that

there were no severe physical impairments as support for his step two determination.

(T. 13). He did not discuss whether Dr. Periakaruppan’s opinion supported a finding

that plaintiff’s back pain was a medically determinable impairment, and why he did not

adopt Dr. Periakaruppan’s opinion despite the purported persuasiveness he attributed to

it. This was error, as the ALJ must consider evidence holistically and may not cherry-

*9 (D. Conn. Aug. 14, 2018) (“It is well-settled that an ALJ may not ‘cherry-pick’

evidence by ‘improperly crediting evidence that supports findings while ignoring

conflicting evidence from the same source.’ ”) (citation omitted).

An error at step two may be harmless if the ALJ identified other severe

impairments, proceeded through the remainder of the sequential evaluation, and

specifically considered all severe and non-severe impairments during subsequent steps

of the process. See Reices-Colon v. Astrue, 523 Fed. App’x 796, 798 (2d Cir. 2013).

However, the ALJ’s error in this case stemmed not from a step-two severity conclusion,

but from the conclusion that plaintiff’s back pain was not a medically determinable

impairment. “[T]he step-two harmless error doctrine is inapplicable to a determination

that an impairment is not medically determinable.” Penny Lou S. v. Comm’r of Soc.

Sec., No. 2:18-CV-213, 2019 WL 5078603, at *8 (D. Vt. Oct. 10, 2019). “Th[e]

distinction [between an ALJ’s determination that an impairment is not severe and her

determination that an impairment is not medically determinable] is significant because

an ALJ may credit a claimant’s statements about her symptoms and functional

limitations only if the impairment to which they relate is medically determinable.”

Cooper v. Comm’r of Soc. Sec., No. 17-CV-1058, 2019 WL 1109573, at *5 (W.D.N.Y.

Mar. 11, 2019) (where ALJ’s finding that plaintiff’s condition was not a medically

determinable impairment was not supported by substantial evidence, harmless error

analysis did not apply and remand was warranted). See SSR 12-2P, 2012 WL 3104869

*5 (July 25, 2012) (“Once a[medically determinable impairment] is established, we

and determine the extent to which the symptoms limit the person's capacity for work.”

(emphasis added)); see also Lauren A. v. Saul, No. 8:18-CV-0244 (TWD), 2019 WL

4242248, at *7 (N.D.N.Y. Sept. 6, 2019) (ALJ’s failure to find impairment medically

determinable was not harmless and warranted remand); Childs v. Colvin, No. 1:14-CV-

462, 2016 WL 1127801, at *3–4 (W.D.N.Y. Mar. 23, 2016) (ALJ’s failure to find

claimant’s schizoaffective disorder was a medically determinable impairment

“constituted reversible error, because a full consideration of plaintiff’s disorder could

have affected the outcome of her application”); Showers v. Colvin, No. 3:13-CV-1147

(GLS/ESH), 2015 WL 1383819, *8 (N.D.N.Y. Mar. 25, 2015) (“Since [the ALJ] found

that Showers’s claimed personality disorder, depression and anxiety were not

medically-determinable abnormalities rising to the level of impairments, functional

limitations attributable thereto were never considered at subsequent steps or when

formulating Showers’s residual functional capacity.”).

Here, the ALJ’s deficient step two analysis impacted the subsequent steps of the

disability determination process because once the ALJ found that plaintiff’s back pain

was not medically determinable, he was not required to consider it in determining

plaintiff’s RFC. See Penny Lou S., 2019 WL 5078603, at *8 (error in finding condition

was not medically determinable impairment “impact[s] the subsequent steps of the

disability determination process because, once the ALJ [finds] the impairment to be not

medically determinable, he [is] not required to consider it in determining Plaintiff’s

RFC”). Indeed, there is no indication that the ALJ considered any of plaintiff’s alleged

especially concerning, to the extent the ALJ concluded plaintiff had the residual

functional capacity to perform a full range of work at all exertional levels. (T. 15).

The Commissioner provides several rationalizations to support his contention

that plaintiff failed to meet his burden at step two; essentially engaging in the analysis

missing from the ALJ’s opinion. (Def.’s Br. at 6–10). Notwithstanding, these

considerations were not made at the agency level, and a reviewing court “may not

accept appellate counsel’s post hoc rationalizations for agency action.” Newbury v.

Astrue, 321 F. App’x 16, 18 (2d Cir. 2009) (quoting Snell v. Apfel, 177 F.3d 128, 134

(2d Cir. 1999)).

Moreover, some of the Commissioner’s arguments are unavailing. For example,

the Commissioner dismisses the notion that plaintiff’s back pain could constitute a

medically determinable impairment, pointing to case law from this district recognizing

that “[p]ain is a symptom, not an impairment.” (Def.’s Br. at 6, citing Newton v.

Comm’r of Soc. Sec., No. 5:14-CV-904 (TJM/ATB), 2015 WL 5117768, at *8

(N.D.N.Y. Aug. 31, 2015)). However, this observation was made in the context of

noting that Newton’s “complaint’s of knee pain, without more,” did not justify a finding

of severity at step two. Newton, 2015 WL 5117768 at *8 (emphasis added). A

searching review reveals that ALJs operating within this Circuit have frequently

identified “back pain,” or the like, as a medically determinable impairment under the

appropriate circumstances. See, e.g., Rowe v. Comm’r of Soc. Sec., No. 5:14-CV-67

(TJM/ATB), 2015 WL 1419063, at *4 (N.D.N.Y. Mar. 27, 2015) (ALJ determined that

of Soc. Sec., No. 20-CV-01025, 2022 WL 125820, at *2 (W.D.N.Y. Jan. 13, 2022)

(same); Guarini v. Astrue, No. 3:11-CV-01609, 2013 WL 1087631, at *2 (D. Conn.

Feb. 19, 2013), report and recommendation adopted, 2013 WL 1087629 (D. Conn.

Mar. 14, 2013) (same); Pitcher v. Barnhart, No. 5:06-CV-1395 (LEK/VEB), 2009 WL

890671, at *19 (N.D.N.Y. Mar. 30, 2009) (“back impairment with pain”); Lucas v.

Astrue, No. 506-CV-1100 (LEK/VEB), 2009 WL 3334345, at *3 (N.D.N.Y. Oct. 14,

2009) (“chronic intermittent low back pain”). Accordingly, this was not a sufficient

basis to summarily exclude plaintiff’s back pain as a medically determinable

impairment.

The Commissioner also points out that plaintiff did not identify a low back

disorder when he applied for disability benefits. (Def.’s Br. at 8). However, the

regulations clearly provide that the fact “[t]hat plaintiff did not specifically allege [an

impairment] in [his] initial benefits applications is not dispositive ... [and the] rule

requires an ALJ to investigate the disabling effects of an impairment if the record

contains evidence indicating that such an impairment might exist . . . [,] without regard

to whether the claimant has alleged that particular impairment as a basis for disability.”

Keller v. Colvin, No. 16-CV-6399, 2017 WL 4112024, at *13 (W.D.N.Y. Sept. 18,

2017) (quoting Prentice v. Apfel, 11 F. Supp. 2d 420, 426 (S.D.N.Y. 1998)); see 20

C.F.R. § 404.1512(a)) (“We will consider only impairment(s) you say you have or

about which we receive evidence.”) (emphasis added). Thus, the omission of plaintiff’s

back pain from his initial disability application is not, in itself, a sufficient basis to

conclude that it did not constitute a medically determinable impairment.

In sum, remand is warranted in this matter because the ALJ’s conclusion at step

two was not supported by substantial evidence. As set forth above, the court finds that

the reasons provided by the ALJ at step two with respect to plaintiff's back pain were

arbitrary, and do not withstand scrutiny. The court does not address the plaintiff's

remaining arguments “because, after evaluating the medical and diagnostic evidence

and applying the de minimus standard,” the ALJ may come to an alternative conclusion

at step two, and consequently incorporate his findings into the remaining steps in the

evaluation process. Burgos v. Berryhill, No. 3:16-CV-1764, 2018 WL 1182175, at *3

(D. Conn. Mar. 7, 2018) (remanding matter where ALJ failed to address, and reconcile,

evidence of record suggesting that plaintiff's back pain constituted a medically

determinable impairment).

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: February 2, 2022 eelow) Ye Bate

Andrew T. Baxter

U.S. Magistrate Judge

18