# Aquilina v. Commissioner of Social Security

> District Court, W.D. New York · September 12, 2022

URL: https://www.frixlaw.com/law-library/cases/10365290

## Case

- **Court:** District Court, W.D. New York
- **Decided:** September 12, 2022
- **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/10365290

## How later opinions describe it (automated extraction)

- finding error, in the context of mental illness, “for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working”
- holding that review of the Secretary’s decision is not de novo and that the Secretary’s findings are conclusive if supported by substantial evidence

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________

TRICIA A.,

Plaintiff, DECISION AND ORDER
v.
1:20-CV-01601-EAW
COMMISSIONER OF SOCIAL SECURITY,

Defendant.
____________________________________

INTRODUCTION
Represented by counsel, Plaintiff Tricia A. (“Plaintiff”) brings this action pursuant
to Title II of the Social Security Act (the “Act”), seeking review of the final decision of the
Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her
application for disability insurance benefits (“DIB”). (Dkt. 1). This Court has jurisdiction
over the matter pursuant to 42 U.S.C. § 405(g).
Presently before the Court are the parties’ competing motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. 16; Dkt.
19). For the reasons discussed below, Plaintiff’s motion (Dkt. 16) is granted to the extent
that the matter is remanded for further administrative proceedings and the Commissioner’s
motion (Dkt. 19) is denied.
BACKGROUND
Plaintiff protectively filed her application for DIB on March 10, 2017. (Dkt. 9-3 at
2; Dkt. 9-5 at 2-4).1 In her application, Plaintiff alleged disability beginning July 23, 2016.

(Dkt. 9-5 at 4). Plaintiff’s application was initially denied on June 28, 2017. (Dkt. 9-3).
At Plaintiff’s request, a hearing was held before administrative law judge (“ALJ”) Roxanne
Fuller on February 26, 2019. (Dkt. 9-2 at 32-56). On July 17, 2019, the ALJ issued an
unfavorable decision. (Id. at 13-25). Plaintiff then requested review by the Appeals
Council, which the Council denied on September 11, 2020, making the ALJ’s

determination the final decision of the Commissioner. (Id. at 2-7).
LEGAL STANDARD
I. District Court Review
“In reviewing a final decision of the [Social Security Administration (“SSA”)], this
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) (quotation omitted); see also 42 U.S.C.
§ 405(g). The Act holds that a decision by the Commissioner is “conclusive” if it is
supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence means more
than a mere scintilla. It means such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)

1 When referencing the page number(s) of docket citations in this Decision and Order,
the Court will cite to the CM/ECF-generated page numbers that appear in the upper
righthand corner of each document.
(quotation omitted). It is not the Court’s function to “determine de novo whether [the
claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation

omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990) (holding that review of the Secretary’s decision is not de novo and that the
Secretary’s findings are conclusive if supported by substantial evidence). However, “[t]he
deferential standard of review for substantial evidence does not apply to the
Commissioner’s conclusions of law.” Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003)
(citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).

II. Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant
is disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467,
470-71 (1986). At step one, the ALJ determines whether the claimant is engaged in
substantial gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not

disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an
impairment, or combination of impairments, that is “severe” within the meaning of the Act,
in that it imposes significant restrictions on the claimant’s ability to perform basic work
activities. Id. § 404.1520(c). If the claimant does not have a severe impairment or
combination of impairments, the analysis concludes with a finding of “not disabled.” If

the claimant does have at least one severe impairment, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or
medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of
Regulation No. 4 (the “Listings”). Id. § 404.1520(d). If the impairment meets or medically
equals the criteria of a Listing and meets the durational requirement (id. § 404.1529), the
claimant is disabled. If not, the ALJ determines the claimant’s residual functional capacity

(“RFC”), which is the ability to perform physical or mental work activities on a sustained
basis, notwithstanding limitations for the collective impairments. See id. § 404.1520(e).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
the claimant to perform the requirements of his or her past relevant work. Id. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the

Commissioner to show that the claimant is not disabled. Id. § 404.1520(g). To do so, the
Commissioner must present evidence to demonstrate that the claimant “retains a residual
functional capacity to perform alternative substantial gainful work which exists in the
national economy” in light of the claimant’s age, education, and work experience. Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted).

DISCUSSION
I. The ALJ’s Decision
In deciding whether Plaintiff was disabled, the ALJ applied the five-step sequential
evaluation analysis set forth in 20 C.F.R. § 404.1520, and noted that Plaintiff met the
insured status requirements of the Act through December 31, 2021. (Dkt. 9-2 at 15-24).

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work
activity since July 23, 2017, the alleged onset date. (Id.).
At step two, the ALJ found that Plaintiff suffered from several severe impairments:
cervical dystonia, migraines, degenerative disc disease, anxiety, and depression. (Id.). The
ALJ also determined that Plaintiff’s carpal tunnel syndrome, hypothyroidism, and
premature ventricular contractions were non-severe impairments. (Id. at 15-16).

At step three, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of any Listing. (Id.
at 16-18). Before proceeding to step four, the ALJ concluded that Plaintiff retained the
RFC to perform sedentary work, except that she could occasionally climb ramps or stairs;
never climb ladders, ropes, or scaffolds; occasionally balance, stoop, crouch, kneel, crawl;
frequently reach, including overhead, with both arms; frequently handle and finger with

both hands; occasionally be exposed to moving mechanical parts and unprotected heights;
occasionally operate a motor vehicle, and perform routine and repetitive tasks. (Id. at 18).
At step four, the ALJ found that Plaintiff was unable to perform her past relevant
work as a bartender and waitress. (Id. at 23). With the help of the VE, the ALJ determined
that there were jobs that existed in significant numbers in the national economy that

Plaintiff could perform, such as the occupations of a document specialist, printed circuit
board screener, and toy stuffer. (Id. at 24). Accordingly, the ALJ concluded that Plaintiff
was not disabled from the date of her application through the date of her decision. (Id. at
25).
II. Remand is Required

Plaintiff advances several arguments in support of her motion submitting that the
ALJ erred in: (1) assessing her credibility; (2) evaluating the opinion of her treating
neurologist Tomas Holmlund, M.D.; (3) assessing the combined effect of her exertional
and non-exertional limitations on her ability to function when formulating the RFC; and
(4) relying on an incomplete hypothetical scenario posed to the VE to determine that there
were jobs in the national economy that Plaintiff could perform. (Dkt. 16-1). She argues

that the matter should be reversed solely for calculation of benefits because the record
supports a finding of disability. (Id. at 34). The Court agrees with Plaintiff that the matter
should be remanded; however, it disagrees that reversal for calculation of benefits is
warranted at this time.
As a general matter, pursuant to the fourth sentence of 42 U.S.C. § 405(g), a court
is authorized to enter judgment affirming, modifying, or reversing the Commissioner’s

decision with or without remanding the cause for rehearing. Section 405(g) allows reversal
and remand solely for calculation of benefits without a rehearing “where [the] Court has .
. . no apparent basis to conclude that a more complete record might support the
Commissioner’s decision.” Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999). Where “the
record contains persuasive proof of disability and a remand for further evidentiary

proceedings would serve no further purpose, a remand for calculation of benefits is
appropriate.” Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); see also Giddings v.
Astrue, 333 F. App’x 649, 655 (2d Cir. 2009) (“[A] decision to reverse and direct an award
for benefits should be made only when . . . substantial evidence on the record as a whole
indicates that the [c]laimant is disabled and entitled to benefits.” (internal citations

omitted)). However, “when there are gaps in the administrative record or the ALJ has
applied an improper legal standard, a court should remand the case to the Commissioner
for the further development of the record.” Speruggia v. Astrue, 05-CV-3532 (NGG), 2008
WL 818004, at *14 (E.D.N.Y. Mar. 26, 2008) (internal citation omitted). Here, the Court
finds that a remand for further administrative proceedings is required because of the ALJ’s
failure to resolve the gap in the record related to Plaintiff’s functional limitations stemming

from her impairments, particularly cervical dystonia and degenerative disc disease.
In formulating Plaintiff’s physical RFC, the ALJ relied on opinions of two non-
treating physicians—A. Vinluan, M.D., state agency medical consultant, and HongBiao
Liu, M.D., consultative examiner. (Dkt. 9-2 at 22-23). She assigned both opinions little
weight because Plaintiff’s limitations resulting from degenerative cervical and lumbar
discs disease were far more extensive than was originally identified by Dr. Liu, and were

more consistent with sedentary work, as opposed to light work opined by Dr. Vinluan.
(Id.). The ALJ indicated that the findings contained in both opinions, particularly those
related to Plaintiff’s mild limitations for prolonged walking, bending, and kneeling, were
inconsistent with the objective medical evidence showing Plaintiff’s upper and lower
cervical straightening, and degenerative spondylosis at C6-C7 and L2-L3 levels. (Dkt. 9-

3 at 12; Dkt. 9-8 at 327-28).
Having found the above opinions—the only opinions of record that discussed
Plaintiff’s limitations in functional terms—inconsistent with the record, the ALJ went
ahead and formulated Plaintiff’s RFC based on her review of the remaining objective
medical evidence without the benefit of an opinion of either of Plaintiff’s treating

neurologists that would address the nature of Plaintiff’s limitations derived from cervical
dystonia and degenerative disc impairments.2 This is troublesome considering the extent

2 Because Plaintiff’s claim was filed before March 27, 2017, the ALJ was required to
apply the treating physician rule and give controlling weight to opinions of Plaintiff’s
and the length of treatment provided by Plaintiff’s neurologists Tomas Holmhuld, M.D.,
and Leonard Kaplan, D.O., who had treated Plaintiff’s complex symptoms stemming from

both impairments for years well before she applied for disability. Richter v. Comm’r of
Soc. Sec., No. 18-CV-806, 2020 WL 1445119, at *3 (W.D.N.Y. Mar. 25, 2020) (“[T]he
duty to develop a full record . . . compels the ALJ . . . to obtain from the treating source
expert opinions as to the nature and severity of the claimed disability. . . . Until [s]he
satisfies this threshold requirement, the ALJ cannot even begin to discharge h[er] duties . .
. under the treating physician rule.”) (internal citation omitted).

That is not to say that the ALJ is always required to rely on a medical opinion to
formulate Plaintiff’s RFC. See Tankisi v. Comm’r Soc. Sec, 521 F. App’x 29, 34 (2d Cir.
2013) (summary order) (where “the record contains sufficient evidence from which an ALJ
can assess . . . residual functional capacity,” a medical source statement or formal medical
opinion is not necessarily required). Indeed, when the record contains sufficient evidence

from which the ALJ can access the claimant’s RFC, see Pellam v. Astrue, 508 F. App’x
87, 90 (2d Cir. 2013), or when the medical evidence shows a relatively minor physical
impairment allowing the ALJ to render a common-sense judgment about a claimant’s
functional capacity, an ALJ’s reliance on a formal medical opinion may not be necessary.
Schillo v. Kijakazi, 31 F.4th 64, 78 (2d Cir. 2022) (“[T]he ALJ’s RFC conclusion need not

treating sources if they were well supported by medically acceptable clinical and laboratory
diagnostic techniques, and were not inconsistent with the other substantial evidence in the
record. 20 C.F.R. § 416.927(c)(2).
perfectly match any single medical opinion in the record, so long as it is supported by
substantial evidence.”).

However, where, as here, Plaintiff has been in treatment for years for complex
chronic impairments, and where the record does not relate her diagnoses to any work-
related functional abilities, the ALJ was not qualified to make an RFC determination
without relying on a medical opinion about Plaintiff’s abilities to perform work on a
continuous and substantial basis. See Kim E. v. Comm’r of Soc. Sec., No. 1:20-CV-01784
CJS, 2022 WL 797462, at *10 (W.D.N.Y. Mar. 16, 2022) (“Where there are medical

records from treating physicians, and ‘the treatment notes and test results from the
claimant’s treating physicians do not assess how the claimant’s symptoms limit [his]
functional capacities,’ the record is incomplete, warranting remand.”) (internal citation
omitted), see also Perkins v. Berryhill, No. 17-CV-6327-FPG, 2018 WL 3372964, at *4
(W.D.N.Y. July 11, 2018) (ALJ cannot render a common-sense judgment about a

claimant’s functional capacity where the record “contain[s] complex medical findings and
do[es] not suggest only minor impairment”). Indeed, the record here is devoid of any
medical authority provided by Plaintiff’s treating sources who opined as to the nature of
her functional limitations stemming from cervical dystonia and generative disc disease that
would support the ALJ’s finding that Plaintiff was capable of performing sedentary work

with additional limitations. See Manago v. Kijakazi, No. 20-CV-1251 (MKB), 2021 WL
4408966, at *8 (E.D.N.Y. Sept. 26, 2021) (remand was warranted where the ALJ failed to
develop the record when he did not seek functional assessments from plaintiff’s treating
physicians and drew conclusions from the record that consisted only of medical notes and
records); Skupien v. Colvin, No. 13-CV-403S, 2014 WL 3533425, at *6 (W.D.N.Y. July
16, 2014) (“As a general rule, where the transcript contains only diagnostic evidence and

no [supporting] opinion from a medical source about functional limitations . . . , to fulfill
the responsibility to develop a complete record, the ALJ must recontact [an acceptable
medical] source, order a consultative examination, or have a medical expert testify at the
hearing.”) (quotations and citations omitted). The lack of such authority was especially
problematic in light of the evidence suggesting that Plaintiff’s ability to sit for over six
hours, and frequently reach, handle and finger with both hands, might be more limiting

than was determined by the ALJ, and the VE’s testimony that there would be no jobs in the
national economy for an individual who would be limited to only occasional reaching
overhead, as well as occasional fingering and handling. (Dkt. 9-2 at 54-55).
The record demonstrates that Plaintiff, a 46-year-old woman at the time of the
application, first started exhibiting pain related to cervical dystonia—an uncurable

condition associated with involuntary contraction of neck muscles causing uncontrollable
tilt or twist of one’s head to one side—since she was 18 years old. While Plaintiff’s
symptoms were initially mild, it took approximately ten years for them to deteriorate to the
point where Plaintiff started to experience limitations in her activities. (Dkt. 9-6 at 25; Dkt.
9-8 at 138). Dr. Holmlund officially diagnosed Plaintiff with cervical dystonia by sometime

around 2000, and subsequently, over the years, documented gradual deterioration of
Plaintiff’s symptoms from her having disabling neck pain to eventually developing a
“constellation of issues,” which included numbness and tingling in her hands and arms
causing her to drop things, joint pain and weakness through spine, limited range of motion
of her neck, head tilt and rotation, pulling pain and heaviness in her legs, lower back pain
with numbness and tingling, sleeplessness, and migraines. (Dkt. 9-6 at 18-29; Dkt. 9-8 at

125-28, 130-32, 134-37, 217-18, 279-81, 392; Dkt. 9-9 at 100). Plaintiff’s symptoms were
worse when she was sitting, standing, lifting, or holding a steering wheel while driving.
(Id.). As her symptoms worsened, Plaintiff began treatment with muscle relaxers and
Botox injections administered every three months to control her neck pain, and eventually
was approved to receive medical marijuana in early 2018 when Botox injections no longer
provided relief for her symptoms. (Dkt. 9-9 at 19-21).

As for Plaintiff’s degenerative disc disease, Dr. Kaplan treated Plaintiff’s lower
back pain continuously since 2015, routinely documenting her complaints of numbness
and tingling of her arms and legs, and increased neck and lower back pain, which was
exaggerated by sitting, standing, and walking. (Dkt. 9-8 at 225-27, 230-32, 238-40, 251-
53, 313-15; Dkt. 9-9 at 108-11). Plaintiff routinely demonstrated restrictions in all

movements of her cervical spine and moderate limitations in her lumbar spine. (Dkt. 9-8
at 225-27). Dr. Kaplan treated Plaintiff with injections in the lumbar area, which had
improved her pain to some extent for a short period of time, but did not relieve her lower
back pain altogether. (Dkt. 9-9 at 103-05, 108-11). Despite receiving periodic injections,
Plaintiff continued to experience neck and lower back pain, numbness and tingling in her

arms and hands, and eventually identified new symptoms of having burning pain in the
lumbar back with constant pulling in her legs, which made her unable to sit or lay down
for prolonged periods of time. (Dkt. 9-8 at 313-15; Dkt. 9-9 at 103-05, 108-11). Plaintiff’s
migraines have also worsened over the years in frequency and intensity, where she had
approximately 25 headaches per month that typically lasted for several days with
photophobia, phonophobia, osmophobia, and nausea. (Dkt. 9-9 at 121-24).

While the record is silent as to a medical opinion of either of Plaintiff’s treating
neurologists regarding her work-related limitations caused by cervical dystonia and
degenerative disc disease, it contains a medical marijuana eligibility form submitted by Dr.
Holmlund to the New York State Department of Health on January 22, 2018. (Dkt. 9-8 at
338). In the form, Dr. Holmlund indicated that Plaintiff had “severe or chronic pain
resulting in substantial limitation of function.” (Id.). Plaintiff argues that this form

represented a medical opinion that the ALJ was required to consider and assign controlling
weight to in accordance with the treating physician rule. (Dkt. 16-1 at 25-28). The Court
is not persuaded that the medical marijuana approval form was a “medical opinion” in its
true meaning under the regulations because even though it was offered by the acceptable
medical source and reflected Dr. Holmlund’s judgment about the severity of Plaintiff’s

impairments, it was silent as to Plaintiff’s diagnosis, prognosis, and, most importantly, her
physical or mental abilities to work despite her impairments. See 20 C.F.R. §
404.1527(a)(1) (“Medical opinions are statements from acceptable medical sources that
reflect judgments about the nature and severity of your impairment(s), including your
symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your

physical or mental restrictions.”). Although the Court does not find an error in the ALJ not
affording controlling weight to the form submitted by Dr. Holmlund as was suggested by
Plaintiff, it agrees that it was improper for the ALJ to completely ignore it in her analysis
and not follow up with Dr. Holmlund regarding the impact of Plaintiff’s cervical dystonia
on her ability to function in a work setting. See Kathryn D. v. Comm’r of Soc. Sec., No.
19-CV-1550-LJV, 2021 WL 195342, at *2 (W.D.N.Y. Jan. 20, 2021) (when a medical

opinion is not a “medical opinion” as defined by the regulations, “the ALJ still must analyze
what is behind the opinion or recontact the provider to request a translation of the opinion
into language that fits the Social Security context”).
It bears noting that the Second Circuit has long recognized the proposition that the
ALJ’s duty to develop the record is not absolute, and, as such, does not arise where the
ALJ already possesses sufficient evidence to make an RFC determination. See 20 C.F.R.

§ 404.1520b(a) (“If all of the evidence we receive, including all medical opinion(s), is
consistent and there is sufficient evidence for us to determine whether you are disabled, we
will make our determination or decision based on that evidence.”); see also Rosa, 168 F.3d
at 79 (the ALJ has the affirmative duty to develop the record such that there are no
inconsistencies that would require further inquiry). Consistent with that notion, the

regulations do not mandate that the ALJ recontact a claimant’s treating physician in each
case, see Janes v. Berryhill, 710 F. App’x 33, 34 (2d Cir. 2018) (the ALJ “is not required
to develop the record any further when the evidence already presented is adequate for [the
ALJ] to make a determination as to disability”) (internal citations omitted), unless the
record is inconsistent or insufficient to determine whether the claimant is disabled, see 20

C.F.R. § 404.1520b(c);3 see also Lowry v. Astrue, 474 F. App’x 801, 805 (2d Cir. 2012)

3 This provision was amended effective March 27, 2017. Because Plaintiff’s claim
was filed prior to that date, the Court applies the version of the regulation that was in effect
at the time of Plaintiff’s application.
(duty to re-contact a treating physician may arise when there is “a conflict or ambiguity”
between the physician’s treatment reports).

Here, the ALJ’s duty to develop the record regarding Plaintiff’s work-related
limitations was heightened by the inconsistencies related to Plaintiff’s symptoms, which
the ALJ acknowledged in her decision but selectively relied on to deny Plaintiff’s
application. Specifically, in support of her finding that Plaintiff was able to perform
sedentary work, the ALJ largely focused on Plaintiff’s physical examinations by some of
her treating providers, when Plaintiff demonstrated full strength in her upper and lower

extremities, normal gait and stance, used no assistive devises or help to ambulate, change
for exam, or get on and off exam table, as well as Plaintiff’s periods of temporary
improvement following injections in her neck and back. (Dkt. 9-2 at 19-22). Indeed,
records from Plaintiff’s primary care physician James J. Panzarella, D.O., and his
registered physician assistant Tatyana Belous, RPA-C, both of whom treated Plaintiff for

years before and during the relevant period, were largely silent as to Plaintiff’s complaints
of neuro- or musculoskeletal problems. (Dkt. 9-7 at 129, 306-07, 355, 358-59, 362-64,
394-97, 401; Dkt. 9-8 at 3, 385-91). Their examinations of Plaintiff’s neck and lower back
were essentially normal with Plaintiff demonstrating symmetrical and nontender neck, full
range of motion in her neck and back, and no joint pain or headaches. (Id.). However,

such records stood in stark contrast with Plaintiff’s reports of disabling symptoms and
abnormal examination findings made by her treating neurologists, particularly by Dr.
Holmlund who treated Plaintiff during the same timeframe as Dr. Panzarella. In fact, Dr.
Holmlund, as well as Dr. Kaplan, routinely noted Plaintiff’s restricted range of motion in
her neck and lumbar spine, head tremor and tilt, bilateral numbness and tingling in her
hands, arms, and legs, burning pain, and severe migraines with aura. (Dkt. 9-7 at 42-43,

46-47; Dkt. 9-8 at 130-32, 134-37, 217-18, 225-27, 230-32, 251-53, 274, 279-81, 313, 392;
Dkt. 9-9 at 100, 103-05, 108-11). Plaintiff’s positive single leg test and hand tremors were
also noted during her consultative examination. (Dkt. 9-8 at 325-28). State agency
consultant Dr. Vinlian also opined that Plaintiff had limited fingering and could only
occasionally do fine manipulations due to her bilateral hand tremors, and was to avoid
exposure to light, noise, and vibration due to her migraines. (Dkt. 9-3 at 12-13). Dr.

Panzarella’s findings were also inconsistent with the result of Plaintiff’s MRI and x-rays
that demonstrated significant deterioration in Plaintiff’s cervical spine at all levels since
2006, multi-disc protrusions, broad disc herniation, diffuse spondylosis, and foraminal
stenosis at C4-C5 and C5-C6 levels, as well as moderate degenerative changes in her
lumbar back. (Dkt. 9-7 at 39-40; Dkt. 9-8 at 329-30).

The ALJ selectively relied on portions of the record that showed temporary
improvement in Plaintiff’s symptoms, largely disregarding the fact that Plaintiff continued
to have serious ongoing symptoms even after years of treatment that significantly
deteriorated during the relevant period. See Loucks v. Kijakazi, No. 21-1749, 2022 WL
2189293, at *2 (2d. Cir. June 17, 2022) (the ALJ erred when he selectively focused on

normal mental health examinations and periods of improvement without considering
plaintiff’s continued psychiatric symptoms after years of treatment and steadily increasing
medication) (summary order). The ALJ’s reliance on Plaintiff’s treatment of her neck and
back impairments with injections to suggest the inconsistency between the limiting effect
of her symptoms and the objective medical evidence documenting Plaintiff’s struggles with
cervical dystonia and degenerative disc disease was misplaced. See Estrella v. Berryhill,

925 F.3d 90, 97 (2d Cir. 2019) (finding error, in the context of mental illness, “for an ALJ
to pick out a few isolated instances of improvement over a period of months or years and
to treat them as a basis for concluding a claimant is capable of working”). The record
demonstrates that despite receiving periodic back injections, Plaintiff continued to have
neck and lower back pain, numbness and tingling in her arms and hands, and identified
additional symptoms of having burning pain in her lumbar back and constant pulling pain

in her legs. (Dkt. 9-8 at 313-15; Dkt. 9-9 at 103-05, 108-11). Similarly, Plaintiff’s neck
injections with Botox, while providing temporary relief at some point during treatment, did
not alleviate her neck pain or tremor. In fact, Dr. Holmlund indicated that even though
Plaintiff was “doing fairly well with Botox[,][she was] significantly bothered by pain,
particularly the last month before Botox treatment.” (Dkt. 9-8 at 392). Despite receiving

injections, Plaintiff continued to have pain and a pulling sensation centered around her
neck, as well as back pain and tremors. (Id.; Dkt. 9-9 at 19-21). Because Botox injections
were no longer providing relief for her pain, Plaintiff was worried that she was becoming
immune to Botox, and, as a result, requested to use medical marijuana, which provided
some help with her sleeplessness, but did not limit her pain. (Id.).

Plaintiff’s hearing testimony also supported the proposition that the only available
treatment to control her symptoms caused by cervical dystonia was ineffective, and that
the limitations stemming from the disease might have been more disabling. Plaintiff
confirmed that despite receiving treatment, there was nothing that relieved her pain
completely. (Dkt. 9-2 at 40, 49-50). She noted that her tremors had gotten worse over the
years resulting in constant involuntary body movements with pulling or straining sensation,

which was similar to “ringing a washcloth where you have opposite forces pulling against
it.” (Id. at 36-50). Plaintiff testified, and the ALJ observed at the hearing, that a part of
her body would always try to move in one direction forcing her to constantly keep it still,
which, in turn, would cause the other body parts to pick up the movement. (Id.). Plaintiff
indicated that the injections were “hit and miss,” and even though they “froze the muscle”
so that it did not allow her head to fall to her left shoulder, they did not reduce her pain.

(Id. at 50). To assist herself with the pulling sensation and to keep her head from falling
to her left shoulder, Plaintiff had to hold her head with her hand; however, it would neither
alleviate the pulling sensation in her neck, nor lessen the movement in the rest of her body.
Plaintiff indicated that her body tremors, severe migraines, the tilt of her head,
compromised hand grip and coordination, as well as the need to use one of her hands to

hold her head, were the reasons why she no longer was able to work as a bartender and
waitress—a job that she performed for 16 years. (Id. at 46, 48, 52). Her head tilt and body
tremors, visible to her colleagues and customers, caused daily questions about her
condition. (Id. at 51). Plaintiff spent her days managing her severe weekly migraines that
lasted on average for a day and a half, or stayed in bed all day due to her severe symptoms.

(Id. at 41-42, 45; Dkt. 9-6 at 20-23).
Therefore, due to the ALJ’s failure to develop the record regarding Plaintiff’s
abilities to function in a work setting, the Court is unable to review whether the ALJ’s
denial of benefits was based on substantial evidence. Baez v. Comm’r of Soc. Sec., No. 17-
CV-3595 (MKB), 2018 WL 4688951, at *9 (E.D.N.Y. Sept. 28, 2018) (“[W]here ‘an ALJ
fails to adequately develop the record in reaching a conclusion as to a claimant’s residual

functional capacity, the Court is unable to review whether the ALJ’s denial of benefits was
based on substantial evidence.”) (internal citation omitted). Consequently, the Court
declines to address the parties’ remaining arguments without the benefit of an adequately
developed record. Accordingly, remand for further proceedings is appropriate to allow the
ALJ to supplement the record with a medical assessment of Plaintiff’s functional
limitations stemming from her complex impairments so that ALJ can properly formulate

Plaintiff’s RFC and resolve conflicting evidence contained in the record.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on the pleadings (Dkt.
16) is granted to the extent the matter is remanded for further administrative proceedings
and the Commissioner’s motion for judgment on the pleadings (Dkt. 19) is denied. The

Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.
___________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court

Dated: September 12, 2022
Rochester, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10365290. Public record. Not legal advice.