# Crosby v. Commissioner of Social Security

> District Court, W.D. New York · April 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10363651

## Case

- **Court:** District Court, W.D. New York
- **Decided:** April 20, 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/10363651

## How later opinions describe it (automated extraction)

- holding ALJ erred in requiring “‘objective’ evidence for a disease that eludes such measurement” such that objective findings were not required to find the claimant disabled by fibromyalgia
- holding ALJ with SSA did not err in failing to consider VA’s determination that claimant is disabled “[b]ecause the Commissioner is not bound by another agency’s disability determination . . . .”
- holding ALJ was free to discount medical assessments made by physician’s assistant and nurse practitioner in favor of objective findings of medical doctors

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________

JOHN C.,
DECISION
Plaintiff, and
v. ORDER

ANDREW M. SAUL, Commissioner of 20-CV-296F
Social Security, (consent)

Defendant.
______________________________________

APPEARANCES: LAW OFFICES OF KENNETH R. HILLER
Attorneys for Plaintiff
KENNETH R. HILLER, and
JEANNE ELIZABETH MURRAY, of Counsel
6000 North Bailey Avenue
Suite 1A
Amherst, New York 14226

JAMES P. KENNEDY, JR.
UNITED STATES ATTORNEY
Attorney for Defendant
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
and
ROBERTA G. BOWIE, and
CHRISTOPHER JOHN CARILLO
Special Assistant United States Attorneys, of Counsel
Social Security Administration
Office of General Counsel
1301 Young Street
Suite 350
Mailroom 104
Dallas, Texas 75202

JURISDICTION

On April 6, 2021, the parties to this action consented pursuant to 28 U.S.C. §
636(c) to proceed before the undersigned. (Dkt. 22). The matter is presently before the
court on motions for judgment on the pleadings filed by Plaintiff on November 30, 2020
(Dkt. 17), and by Defendant on March 1, 2021 (Dkt. 21).

BACKGROUND

Plaintiff John C. (“Plaintiff”), brings this action seeking judicial review of the
Commissioner of Social Security’s final decision denying Plaintiff’s application filed with
the Social Security Administration (“SSA”), on December 27, 2016, for Social Security
Disability Insurance (“SSDI”) under Title II of the Act (“disability benefits”). Plaintiff
alleges he became disabled on August 31, 2013, based on cervical spinal stenosis with
neuropathy, low back condition, upper body neuralgia, left torn meniscus, and post-
traumatic stress disorder (“PTSD”). AR1 at 254, 280-81. Plaintiff’s application initially
was denied on March 22, 2017, AR at 203-08, and at Plaintiff’s timely request, AR at
208-09, on January 18, 2018, a hearing was held in Buffalo, New York before
administrative law judge (“ALJ”) Stephen Cordovani (“the ALJ”). AR at 77-116 (“first

administrative hearing”). Appearing and testifying at the first administrative hearing via
video conference from Jamestown, New York were Plaintiff, represented by Steven
Ruotsi, Esq., and vocational expert Michael A. Klein (“Klein” or “the VE”).
On February 9, 2018, the ALJ denied Plaintiff’s claim, AR at 52-70 (“first ALJ
decision”), and Plaintiff timely filed a request for review of the first ALJ decision by the
Appeals Council, AR at 47-48. On May 25, 2018, the Appeals Council denied Plaintiff’s
request for review of the first ALJ decision, AR at 1-7, thereby making the first ALJ
decision the Commissioner’s final determination on the claim at that time. On July 24,

1 References to “AR” are to the page numbers of the Administrative Record Defendant electronically filed
in three parts on August 25, 2020 (Dkts. 10, 11 and 12).
2018, Plaintiff commenced his first action in this court challenging the Commissioner’s
determination on the first claim. Crosby v. Comm’r of Soc. Sec., 18-CV-805FPG
(W.D.N.Y.) (“first legal action”). On March 18, 2019, the parties stipulated to remand
the matter pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings, 18-

CV-805FPG, Dkt. 9, AR at 962-63, with judgment in Plaintiff’s favor entered March 19,
2019, 18-CV-805FPG, Dkt. 10, AR at 964. On June 17, 2019, the Appeals Council
issued a Remand Order vacating the first ALJ decision and remanded the matter for
further proceedings consistent with this court’s order including a new administrative
hearing. AR at 965-69.
In accordance with the Appeals Council’s remand order, on October 28, 2019, a
new administrative hearing was held in Buffalo, New York before the ALJ. AR at 858-99
(“second administrative hearing”). Appearing and testifying at the second administrative
hearing via video conference from Jamestown, New York were Plaintiff, represented by
Megan D. Kale, Esq., and Klein, the VE. On November 27, 2019, the ALJ issued an

unfavorable opinion (“second ALJ decision”). AR at 834-857. Plaintiff did not file for
review by the Appeals Council, but on March 11, 2020, commenced the instant action
seeking judicial review of the second ALJ decision.
On November 30, 2020, Plaintiff moved for judgment on the pleadings (Dkt. 17
(“Plaintiffs’ Motion”), attaching the Memorandum of Law in Support of Plaintiff’s Motion
for Judgment on the Pleadings (Dkt. 17-1) (“Plaintiff’s Memorandum”). On March 1,
2021, Defendant moved for judgment on the pleadings (Dkt. 20) (“Defendant’s Motion”),
attaching Commissioner’s Memorandum in Support of His Motion for Judgment on the
Pleadings and in Response to Plaintiff’s Brief, Pursuant to Local Rule 5.5 (Dkt. 20-1)
(“Defendant’s Memorandum”). Filed on March 22, 2021 was Plaintiff’s Response to
Commissioner’s Brief in Support and in Further Support for Plaintiff’s Motion for
Judgement on the Pleadings (Dkt. 21) (“Plaintiff’s Reply”). Oral argument was deemed
unnecessary.

Based on the foregoing, Plaintiff’s Motion is GRANTED; Defendant’s Motion is
DENIED; the matter is REMANDED for calculation of benefits.

FACTS2
Plaintiff John C. (“Plaintiff”), born December 11, 1974, was 42 years old when he
initially applied for disability benefits on December 27, 2016, and 44 years old as of
November 27, 2019, the date of the second ALJ decision. Plaintiff lived with his wife
and teenage son. AR at 864. Plaintiff graduated high school where he attended regular
classes, completed a two-year automotive technologies program at BOCES, and also
completed military training in weapons and combat. AR at 281. Plaintiff’s only work

history is 20 years as an infantryman with the United States Marines. AR at 282, 305,
872-73. In 2012, Plaintiff became sick while on active duty with what he maintains is a
“rare neurological disorder that the VA has been working to identify.” AR at 300.
According to Plaintiff, he “was stricken with this aliment overnight,” which led to his
discharge from the military in August 2013. AR at 305, 2120.
Plaintiff and his wife often provided care for their four-year old grandson who
stayed overnight at their house when his parents had to leave for work early. AR at
865-69. Plaintiff has a driver’s license and drives three times a week, mostly locally

2 In the interest of judicial economy, recitation of the Facts is limited to only those necessary for
determining the pending motions for judgment on the pleadings.
including to medical appointments, to the grocery store, and to transport his grandson to
pre-school, but sometimes to the Veterans Administration Hospital (“the VA”) in Buffalo
or Bath, New York, asserting he has to rest his arms on his legs while gripping the
steering wheel. AR at 869-72. Plaintiff also uses a riding lawn mower to mow his one-

acre yard, AR at 887, and with his neighbors’ assistance, clears fallen trees from trails
through the wooded portion of his 40-acre property with his neighbors doing most of the
work. AR at 886-890. On rare occasions, Plaintiff fishes in a pond on his property. AR
at 891-92. Plaintiff used to be an avid motorcycle rider, but has only ridden twice in the
last seven years. AR at 890.
Plaintiff received primary care through the VA hospitals in Buffalo and Bath
where Plaintiff was treated by, inter alia, Sherry Withiam-Leitch, M.D. (“Dr. Withiam-
Leitch”), nurse practitioner Rosetta Brown-Greaney (“NP Brown-Greaney”), and
psychologists Deborah Marshall, Psy.D. (“Dr. Marshall”), and Karen Klementowski,
Psy.D. (“Dr. Klementowski”). On October 17, 2013, NP Brown-Greaney completed a

general medical separation health assessment disability benefits questionnaire in
connection with Plaintiff’s discharge from the Marines, indicating Plaintiff has symptoms
attributable to peripheral nerve conditions in his upper extremities including constant
severe bilateral pain, and severe bilateral paresthesia (burning, tingling sensation) or
dysethesia (sensation of burning or tightening). AR at 2125-46. On January 15, 2016,
NP Brown-Greaney completed a disability benefits questionnaire regarding Plaintiff’s
hand and finger conditions, AR at 354-71, and regarding Plaintiff’s cervical spine. AR at
1932-43. On September 13, 2016, Dr. Withiam-Leitch completed a disability benefits
questionnaire related to Plaintiff’s peripheral nerve condition. AR at 346-54. On
February 5, 2018, NP Brown-Greaney completed a disability benefits questionnaire
regarding Plaintiff’s peripheral nerve condition. AR at 1423-40. Disability benefits
questionnaires concerning Plaintiff’s PTSD were completed by Dr. Marshall on October
22, 2013, AR at 2119-24, December 28, 2015, AR at 549-53, and by Dr. Klementowski

on September 6, 2016. AR at 338-45.
In connection with his disability benefits claim, on March 9, 2017, Plaintiff
underwent a psychiatric evaluation by Kristina Labarbera, Psy.D. (“Dr. Labarbera”), AR
at 568-72, and an internal medicine examination by Rita Figueroa, M.D. (“Dr.
Figueroa”). AR at 573-78. On March 21, 2017, state agency psychologist A. Dipeolu,
Ph.D. (“Dr. Dipeolu”), and state agency disability examiner Gary Ehlert, M.D. (“Dr.
Ehlert”) reviewed Plaintiff’s medical records. AR at 193-202. After remand of the first
ALJ decision, on July 13, 2019, Plaintiff underwent an internal medicine examination by
Russell Lee, M.D. (“Dr. Lee”). AR at 1213-16.

DISCUSSION

1. Standard and Scope of Judicial Review
A claimant is “disabled” within the meaning of the Act and entitled to disability
benefits when he is unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s
determination that a claimant is not disabled if the factual findings are not supported by
substantial evidence, or if the decision is based on legal error. 42 U.S.C. §§ 405(g),
1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
In reviewing a final decision of the SSA, a district court “is limited to determining
whether the SSA’s conclusions were supported by substantial evidence in the record

and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d
Cir. 2012) (internal quotation marks and citation omitted). “Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. It is not, however, the district court’s
function to make a de novo determination as to whether the claimant is disabled; rather,
“the reviewing court is required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be drawn” to determine
whether the SSA’s findings are supported by substantial evidence. Id. “Congress has
instructed . . . that the factual findings of the Secretary,3 if supported by substantial
evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d60, 62 (2d Cir. 1982).

“Under this ‘very deferential standard of review,’ ‘once an ALJ finds facts, we can reject
those facts only if a reasonable factfinder would have to conclude otherwise.’” Bonet ex
rel. T.B. v. Colvin, 523 Fed.Appx. 58, 58-59 (2d Cir. 2013) (quoting Brault v. Social Sec.
Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (italics in original). Indeed, the issue
is not whether substantial evidence supports the claimant’s argument, but “whether
substantial evidence supports the ALJ’s decision.” Bonet ex rel. T.B., 523 Fed.Appx. at
59.

3 Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases was transferred to the
Commissioner of Social Security, effective March 31, 1995.
2. Disability Determination
The definition of “disabled” is the same for purposes of receiving SSDI and SSI
benefits. Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c(a). The applicable
regulations set forth a five-step analysis the Commissioner must follow in determining

eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920. See Bapp v.
Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker, 675 F.2d 464 (2d Cir.
1982). The five steps include (1) whether the plaintiff is currently engaged in substantial
gainful activity, 20 C.F.R. § 404.1520(b) and § 416.920(b); (2) whether the plaintiff has
at least one severe impairment limiting his mental or physical ability to perform basic
work activity, 20 C.F.R. § 404.1520(c) and § 416.920(c); (3) whether the plaintiff’s
severe impairments, considered together, meet or equal a listing in 20 C.F.R. Part 404,
Subpt. P, Appendix 1 of the regulations, and meet the duration requirement of at least
12 continuous months, 42 U.S.C. §§ 423(d)(1)(A) and 1382a(c)(3)(A); 20 C.F.R. §§
404.1520(d) and 416.920(d), (4) whether the plaintiff, despite his collective impairments,

retains the “residual functional capacity (“RFC”) to perform his past relevant work
(“PRW”), 20 C.F.R. 404.1520(e)-(f), and 416.920(e)-(f), and (5) if the plaintiff cannot
perform his PRW, whether any work exists in the national economy for which the
Plaintiff, given the applicant’s age, education, and past work experience, “retains a
residual functional capacity to perform. . . .” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.
1999) (quotation marks and citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c).
The burden of proof is on the applicant for the first four steps, with the Commissioner
bearing the burden of proof on the final step. 20 C.F.R. §§ 404.1520(a)(4) and
416.920(a)(4); Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).
In the instant case, the ALJ found Plaintiff meets the insured status requirements
for SSDI through December 31, 2018, AR at 839, Plaintiff has not engaged in SGA
since August 31, 2013, his alleged disability onset date (“DOD”), id., and has the severe
impairments of disorder of the left knee, degenerative disc disease (“DDD”) of the neck

and low back, and mild sensorineural hearing loss in the right ear, id. at 839-40, but that
there is no medical explanation supporting Plaintiff’s reported symptoms of upper
extremity pain, weakness, numbness and difficulty using his fingers, despite “[m]ultiple
exams and tests of every nature, including neurological and rheumatological,” such that
the condition is not medically determinable, id. at 840-41, that Plaintiff’s PTSD, although
medically determinable, is not severe, id. at 841-43, and that Plaintiff does not have an
impairment or combination of impairments meeting or medically equal in severity to a
listed impairment. AR at 843-44. The ALJ further found that despite his impairments,
Plaintiff retains the RFC for light work as defined in 20 C.F.R. § 404.1567(b), except that
Plaintiff can occasionally kneel, crouch, and crawl, cannot climb ladders, ropes or

scaffolds, cannot work around hazards such as loud noise, unprotected heights, moving
mechanical parts, or flammable liquids, and can occasionally use a telephone at work.
AR at 844-50. Plaintiff was unable to perform any PRW, AR at 850-51, but given his
age, education, ability to communicate in English, and despite transferability of skills
from his PRW not being relevant, is able to perform jobs existing in the national
economy including as a marker, office cleaner, and weigher. AR at 851-52. As such,
the ALJ found Plaintiff was not disabled as defined under the Act at any time through
the date of the ALJ’s decision.
In support of his motion, Plaintiff argues the ALJ erred at step two of the five-step
sequential analysis in not considering as severe impairments Plaintiff’s upper extremity
impairment, Plaintiff’s Memorandum at 17-27, as well as Plaintiff’s PTSD. Id. at 27-30.
In opposition, Defendant argues the findings contained in the various disability

questionnaires completed by medical personnel at the VA are not binding on the
Commissioner, Defendant’s Memorandum at 8-9, the ALJ properly considered the
opinions of the consultative examiners, id. at 10-12, the opinions of VA NP Brown-
Greaney were not issued by an “acceptable medical source” and thus are not entitled to
controlling weight, id. at 12, Dr. Lee’s opinion was issued after December 31, 2018, i.e.,
Plaintiff’s date last insured and, as such, is not pertinent to the relevant period, id. at 12-
13, Plaintiff thus fails to establish the ALJ erred at step two, id. at 13-15, and substantial
evidence supports the ALJ’s determination that PTSD did not qualify at step two as a
severe impairment. Id. at 15-17. In reply, Plaintiff reiterates that the ALJ erred at step
two in failing to find Plaintiff’s upper extremity impairment and PTSD constitute severe

impairments. Plaintiff’s Reply at 1-3.
Preliminarily, the court addresses the numerous opinions of record by VA
personnel, including psychologists Drs. Marshall and Klementowski, and Dr. Withiam
Leitch. As Defendant argues, Defendant’s Memorandum at 8-10, insofar as such
opinions were rendered in connection with Plaintiff’s VA disability benefits, the
determinations that Plaintiff is disabled are not based on SSA policy or definitions of
disability and, as such, are not entitled to controlling weight, although they remain
evidence the ALJ may consider. See Lohnas v. Astrue, 510 Fed.Appx. 13, 14 (2d Cir.
2013) (holding ALJ with SSA did not err in failing to consider VA’s determination that
claimant is disabled “[b]ecause the Commissioner is not bound by another agency’s
disability determination . . . .”) (citing Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir.
1975)). Nevertheless, a plain reading of the second ALJ decision establishes the ALJ
considered all these opinions. See AR at 849 (giving partial weight to opinion of Dr.

Withiam-Leitch), 850 (giving some weight to opinions of Drs. Klementowski and
Marshall).
Nor was the ALJ required to give controlling weight to the findings contained in
the disability benefits questionnaires completed by NP Brown-Greaney who, as a nurse
practitioner, is not considered an “acceptable medical source” under the relevant
regulation in effect when Plaintiff filed his disability benefits claim, filed prior to March
27, 2017. See 20 C.F.R. § 404.1502(a)(7) (defining a medical opinion as a statement
from an “acceptable medical source” which does not include nurse practitioners); see
also Genier v. Astrue, 298 Fed.Appx. 105, 108-09 (2d Cir. 2008) (holding ALJ was free
to discount medical assessments made by physician’s assistant and nurse practitioner

in favor of objective findings of medical doctors) (citing 20 C.F.R. § 416.913(d)(1)
(defining nurse practitioners and physician’s assistants as “other sources” who opinions
do not demand the same deference as those of a treating physician)). Thus, although
NP Brown-Greaney’s treatments notes are evidence of Plaintiff’s alleged impairments
the ALJ may consider, the ALJ was not required to give any particular weight to NP
Brown-Greaney’s assessments of Plaintiff.
With regard to Plaintiff’s PTSD, the ALJ considered the condition to be a
medically determinable impairment, although not severe because the evidence in the
record failed to establish the condition poses more than minimal limitation to claimant’s
ability to perform basic mental work activities. AR at 841-42. In support of this
determination, the ALJ relies on the fact that Plaintiff has not sought treatment for his
PTSD, AR at 841, as well as Dr. Labarbera’s March 9, 2017 psychiatric evaluation. Id.
(citing AR at 568-72). In particular, upon examining Plaintiff, Dr. Labarbera diagnosed

Plaintiff with PTSD. Id. at 571. Nevertheless, Dr. Labarbera’s evaluation of Plaintiff with
regard to the four mental functioning areas set forth in the regulations for evaluating
mental disorders referred to as the “paragraph B” criteria, failed to show Plaintiff with at
least one extreme or two marked limitations in the four areas of functioning, including
(1) a mild limitation in understanding, remembering, or applying information, particularly
with regard to recent and remote memory; (2) no limitation to interacting with others; (3)
mild limitation in concentrating, persisting, or maintaining pace; and (4) mild limitation in
adapting or managing himself, AR at 841-42 (citing AR at 570). Significantly, “‘the
opinion of a treating physician is not binding if it is contradicted by substantial evidence,
and the report of a consultative physician may constitute such evidence.’” Camille v.

Colvin, 652 Fed.Appx. 25, 28 (2d Cir. 2016) (quoting Mongeur v. Heckler, 722 F.2d
1033, 1039 (2d Cir. 1983))). Further, the report of a consultative psychologist also may
constitute substantial evidence. Petrie v. Astrue, 412 Fed.Appx. 401, 405-06 (2d Cir.
2011). Accordingly, the ALJ’s determination that Plaintiff’s PTSD was not severe is
supported by substantial evidence in the record.
Insofar as Plaintiff argues the ALJ erred in failing to determine Plaintiff has a
medically determinable severe impairment of his upper extremities, Plaintiff’s
Memorandum at 17-27, Defendant maintains the ALJ did not err in failing to find a
severe upper extremities impairment because no such impairment is supported by any
medically acceptable clinical and laboratory diagnostic techniques from an acceptable
medical source. Defendant’s Memorandum at 13-15. As Defendant argues,
Defendant’s Memorandum at 15, it is Plaintiff’s burden to establish he has a medically
determinable impairments that accounts for his alleged limitations. Pazik v. Comm’r of

Soc. Sec., 2020 WL 5511306, at * 3 (W.D.N.Y. Sept. 14, 2020). As explained in Social
Security Ruling (“SSR”)4 96-4p, Titles II and XVI: Symptoms, Medically Determinable
Physical and Mental Impairments, and Exertional and Nonexertional Limitations,
available at 1996 WL 374187 (SSA July 2, 1996) (“SSR 96-4p”), setting forth the
framework for evaluating symptoms in the adjudication of disability benefits claims,
“regardless of how many symptoms an individual alleges, or how genuine the
individual’s complaints may appear to be, the existence of a medically determinable
physical or mental impairment cannot be established in the absence of objective
medical abnormalities, i.e., medical signs and laboratory findings.” SSR 96-4p, 1996
WL 374187, at * 1. Further, “[n]o symptom or combination of symptoms by itself can

constitute a medically determinable impairment.” Id. at * 2. But, as Defendant
concedes, Defendant’s Memorandum at 15, Plaintiff’s upper extremities symptoms may
be attributable to his cervical DDD which the ALJ identified as a severe impairment.
Significantly, the ALJ did err in determining Plaintiff’s cervical degenerative disc
disease (“DDD”) is a severe impairment, then failing to find such impairment posed any
limitations to Plaintiff’s ability to perform basic work activities. In particular, the
regulations instruct that to qualify as severe,

4 “SSR” refers to Social Security Rulings which are agency rulings “published under the authority of the
Commissioner of Social Security and are binding on all components of the Administration. These rulings
represent precedent final opinions and orders and statements of policy and interpretations that [the SSA]
ha[s] adopted.” 20 C.F.R. § 402.35(b)(1).
Your impairment(s) must result from anatomical, physiological, or psychological
abnormalities that can be shown by medically acceptable clinical and laboratory
diagnostic techniques. Therefore, a physical or mental impairment must be
established by objective medical evidence from an acceptable medical source.
We will not use your statement of symptoms, a diagnosis, or a medical opinion to
establish the existence of an impairment(s). After we establish that you have a
medically determinable impairment(s), then we determine whether your
impairment(s) is severe.

20 C.F.R. § 404.1521
As defined in the relevant regulations, a “severe impairment” is one that “significantly
limits your physical or mental ability to do basic work activities. . . . ” 20 C.F.R. §
404.1520(c). “Basic work activities” include the ability and aptitude to perform most jobs
and include, as relevant here, “[p]hysical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling.” 20 C.F.R. § 404.1522(b)(1).
Here, the ALJ’s determination that Plaintiff’s cervical DDD is a “severe
impairment” establishes, pursuant to 20 C.F.R. § 404.1521, that such condition is
“shown by medically acceptable clinical and laboratory diagnostic techniques.” The
ALJ’s determination that Plaintiff’s cervical DDD impairment is “severe,” implies such
impairment “significantly limits” Plaintiff’s ability to perform “basic work activities.” 20
C.F.R. § 404.1520(c). As such, upon finding Plaintiff’s cervical DDD is a severe
impairment, the ALJ was required to incorporate into the RFC determination in the
second ALJ decision some limitations associated with such impairment, but failed to do
so. See Laura C. v. Commissioner of Soc. Sec., __ F.Supp.3d __, 2021 WL 1147300,
at * 5 (W.D.N.Y. Mar. 26, 2021) (remanding where the ALJ considered the plaintiff’s
Chron’s disease and irritable bowel syndrome (“IBS”) to be severe, but failed to explain
how any limitations to the plaintiff’s ability to perform basic work activities accounted for
the plaintiff’s symptoms attributed to Chron’s disease and IBS such that court was “left
to speculate” with regard to the severity of the plaintiff’s condition and thus deprived the
court of any meaningful review); Amanda F. v. Saul, 2021 WL 236015, at * 6 (W.D.N.Y.
Jan. 25, 2021) (holding the ALJ’s failure to include in the RFC determination any
limitations relating to the plaintiff’s bilateral carpal tunnel syndrome, which the ALJ

considered to be a severe impairment, was harmful error requiring remand for further
administrative proceedings).
The upper extremity symptoms attributed to Plaintiff’s cervical DDD include pain
muscle weakness, paresthesia, and decreased sensation to light touching and have
repeatedly been documented in Plaintiff’s medical records. See, e.g., AR at 347-38 (VA
Peripheral Nerve Condition Disability Benefits Questionnaire completed by Dr. Withiam-
Leitch on January 15, 2016). Significantly, on April 26, 2017, Plaintiff underwent at VA
Neurology Clinic a neurological evaluation for complaints of, as relevant here, bilateral
upper extremity weakness, and severe pain with weakness to finger extensors. AR at
588-91. It was noted Plaintiff had an MRI of his cervical spine on September 27, 2016,

that showed disc herniation at C6-C7 extending to the right neural foramen, secondary
severe right and neural foraminal and lateral recess stenosis, and impinging on the right
C7-C8 nerve roots. Id. Upon neurological examination, Plaintiff had bilateral web
space atrophy (muscle wasting between thumb and index finger), and generalized
upper extremity muscle wasting, dysmetria bilaterally on finger to nose testing (lack of
coordination in touching finger to nose), and reduced sensation to light touch, sharp,
and vibratory sense bilateral, which symptoms were found consistent with cervical
myelopathy (spinal cord injury caused by compression) of a worsening pathology, with
Plaintiff’s bilateral upper extremity weakness directly correlating with MRI cervical
findings. Id.
Findings made by Dr. Figueroa who consultatively examined Plaintiff on Mary 9,
2017, are consistent with Plaintiff’s complaints. AR at 573-77. In particular, Dr.

Figueroa reported that on his upper extremities, pinprick was not sensed in any portion
of Plaintiff’s left arm, and only in the triceps of Plaintiff’s right arm, AR at 576,
proprioception (body’s inability to perceive its own position in space) and two-point
discrimination (intended to assess if a patient is able to identify two close points on a
small area of skin) were absent, id., there was atrophy of Plaintiff’s right shoulder and
right biceps, id. at 577, and an overall decrease in tonicity (muscle tone). Id. Dr.
Figueroa diagnosed Plaintiff with diffuse myalgia and muscle weakness of unknown
etiology, and cervicalgia (neck pain), stating Plaintiff would have difficulty with activities
requiring moderate exertion, and moderate limitations to repetitive bending, lifting, and
carrying, as well as repetitive reaching, pushing and pulling. Id. Upon another

consultative examination by Dr. Lee on July 31, 2019, Plaintiff’s primary complaint was
cervical nerve impingement bilaterally at C7-C8, constant pain in his arms, burning pain
from his elbows to his fingertips, which worsened when Plaintiff raised his arms, and an
inability to hold onto items. AR at 1213-16. After examining Plaintiff, Dr. Lee diagnosed
nerve impingement of C7-C8 and unknown muscle disorder, stating Plaintiff has
moderate limitations for activities involving lifting, reaching above his head, and
bending. Id. In short, Plaintiff’s medical providers, including several physicians,
repeatedly found Plaintiff with muscle weakness, pain, and decreased sensation in his
bilateral upper extremities, and attributed such findings to Plaintiff’s cervical DDD. The
ALJ’s desire for more persuasive evidence such as diagnostic medical tests
establishing a diagnosed impairment of Plaintiff upper extremities impairment separate
from the severe impairment of cervical DDD is understandable; however, the record
establishes both Plaintiff’s treating and consultative sources repeatedly attribute

Plaintiff’s symptoms, including subjective symptoms such as pain and weakness, as
well as objectively determined symptoms including muscle wasting and paresthesia
relative to his upper extremities to his cervical DDD. The ALJ cannot insist on objective
medical tests to confirm subjective symptoms where no such tests exist. See Green-
Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003) (holding ALJ erred in requiring
“‘objective’ evidence for a disease that eludes such measurement” such that objective
findings were not required to find the claimant disabled by fibromyalgia).
Pursuant to § 205 of the Act, 42 U.S.C. § 405(g), courts may remand cases upon
finding the Commissioner “applied erroneous legal standards and arrived at a
determination unsupported by substantial evidence.” Aubeuf v. Schweiker, 649 F.2d

107, 116 (2d Cir.1981). “The fourth sentence of § 405(g) authorizes a court to enter ‘a
judgment affirming, modifying, or reversing the decision of the Secretary, with or without
remanding the cause for a rehearing.’” Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991)
(quoting Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990)); Raitport v. Callahan, 183
F.3d 101, 103–04 (2d Cir.1999). Where there are gaps in the administrative record or
the ALJ has applied an improper legal standard, the proper course is a remand to the
Commissioner for further proceedings. Rosa, supra, at 82–83 (citing Parker v. Harris,
626 F.2d 225, 235 (2d Cir.1980)). Where, however, there is no apparent basis to
conclude that a more complete record might support the Commissioner's decision, a
remand limited to calculation of benefits is in order. Rosa, supra (citing Balsamo v.
Chater, 142 F.3d 75, 82 (1998)); Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987).
Although Plaintiff requests remand for further administrative proceedings,
Plaintiff’s Memorandum at 30; Plaintiff’s Reply at 3, where, as here, there are no gaps in

the administrative record, remand for further development of the record would be futile
because it is unlikely that any objective medical testing will definitively establish the
source of Plaintiff’s upper extremities symptoms. Further, as discussed, Discussion,
supra, at 14-16, the ALJ erroneously discredited Plaintiff's subjective complaints
regarding his cervical DDD despite a plethora of medical evidence attributing such
complaints to Plaintiff’s cervical DDD, substantially undermining the ALJ's decision,
which, as discussed, Discussion, supra, at 16-17, is heavily predicated on the
discrediting of such complaints based on the lack of diagnostic medical tests
corroborating the complaints. Moreover, a plain review of the transcript of the first
administrative hearing reveals the ALJ posed hypotheticals to the VE that included

limitations consistent with Plaintiff’s cervical DDD, specifically, limited reaching,
fingering, and handling, which limitations the VE testified would preclude any
competitive employment. AR at 114. Similarly, at the second administrative hearing,
the ALJ again posed a hypothetical to the VE that included limiting Plaintiff to occasional
handling and fingering, with the VE responding such limitations would preclude
performance of all competitive work. AR at 897-98. The record thus establishes that
remand for further administrative proceedings, including a new hearing with the ALJ
required to pose to the VE another hypothetical incorporating restrictions attributed to
Plaintiff’s cervical DDD would be futile. See Barbara K. v. Comm’r of Soc. Sec., 2021
WL 1163149, at * 17-18 (N.D.N.Y. Mar. 26, 2021) (remanding for calculation of benefits
where the VE’s hearing testimony in response to the ALJ’s hypothetical that included
limitations attributed to all of the plaintiff’s severe impairments, including fibromyalgia
and neuropathy, was that the plaintiff would not be capable of performing any

substantial gainful employment available in the national economy) (citing cases).
Accordingly, the ALJ’s finding that Plaintiff was not disabled between August 31,
1993, his alleged DOD, and December 31, 2018, his date last insured, is not supported
by substantial evidence in the record. As such, remand solely for calculation of benefits
is proper.

CONCLUSION
Based on the foregoing, Plaintiff’s Motion (Dkt. 17) is GRANTED; Defendant’s
Motion (Dkt. 20) is DENIED; the matter is REMANDED for calculation of benefits. The
Clerk of Court is directed to close the file.

SO ORDERED.

/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE

DATED: April 20th, 2021
Buffalo, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10363651. Public record. Not legal advice.