Joseph v. Kijakazi

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-----------------------------------X

JAMES JOSEPH,

Plaintiff, MEMORANDUM & ORDER

- against - No. 21-cv-4398 (KAM)

MARTIN O’MALLEY, COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

-----------------------------------X

KIYO A. MATSUMOTO, United States District Judge:

Mr. James Joseph appeals the final decision of the

Commissioner of the Social Security Administration1 denying him

Disability Insurance Benefits under the Social Security Act, 42

U.S.C. § 423. (ECF No. 1, Compl.) Mr. Joseph has moved for “summary

judgment on the pleadings,” which the Court will treat as a motion

for judgment on the pleadings.2 (See ECF No. 10, Pl.’s Mot.) The

Commissioner has also moved for judgment on the pleadings. (ECF

1 The Court has updated the caption to reflect the new Commissioner of Social

Security, who took office after Mr. Joseph commenced this action. See Fed. R.

Civ. P. 25(d); Pryor v. Berryhill, 286 F. Supp. 3d 471, 471 n.1 (E.D.N.Y. 2017).

2 Social Security appeals are generally resolved on motions for judgment on the

pleadings because judicial review of Social Security decisions is limited to

“the pleadings and transcript of the record[.]” 42 U.S.C. § 405(g); Kercado ex

rel. J.T. v. Astrue, No. 08-CV-478 (GWG), 2008 WL 5093381, at *2 (S.D.N.Y. Dec.

3, 2008) (“Judicial review of Social Security cases [] is limited to a review

based on the pleadings and the administrative ‘record.’” (citing § 405(g)).

Therefore, this Court considers Mr. Joseph’s motion, styled as a motion for

summary judgment, under Federal Rule of Civil Procedure 12(c). See Aguirre v.

Saul, 568 F. Supp. 3d 477, 478–79 (S.D.N.Y. 2021) (treating plaintiff’s motion

pursuant to § 405(g) as one for judgment on the pleadings, even though plaintiff

had “styled his motion as one for summary judgment”).

No. 14, Comm’r’s Mot.) For the reasons below, Mr. Joseph’s motion

is GRANTED, and the Commissioner's motion is DENIED.

Background

On August 6, 2019, Mr. Joseph applied for disability insurance

benefits (“DIB”), alleging disability beginning May 24, 2018.

(R.83.)3 Mr. Joseph alleges his physical injuries resulted from an

accident that occurred during his former employment: when he was

stepping into a van with a 70-pound crate of milk, another vehicle

struck the van, causing Mr. Joseph to fall and the inventory he

was holding to fall on top of him. (R.288.) On the alleged onset

date, Mr. Joseph was 26 years old and had at least a high school

education. (R.94.)

The Commissioner denied his application for disability

benefits on March 9, 2020, and denied the application again upon

reconsideration on October 9, 2020. (R.83.) On February 12, 2021,

Administrative Law Judge Robert R. Schriver (the “ALJ”) held a

telephone hearing due to the extraordinary circumstances of the

COVID-19 pandemic. (Id.) Mr. Joseph appeared at the hearing with

counsel. (Id.) A vocational expert also appeared. (Id.) Mr. Joseph

provided medical evidence before and after the hearing, when the

record was held open. (Id.)

On April 12, 2021, the ALJ decided that Mr. Joseph was not

3 The Court cites to the Bates-stamped Administrative Transcript, (ECF No. 8),

as (R.__.)

disabled pursuant to 42 U.S.C. § 423 and therefore did not award

him DIB. (R.83, 95.) The ALJ determined that Mr. Joseph had not

engaged in substantial gainful activity since he applied for DIB.

(R.85.) He also determined Mr. Joseph had severe impairments of

degenerative disc disease and herniated discs of the lumbar spine

with nerve-root compromise; status post-lumbar laminectomy

surgery; degenerative disc disease and bulging discs of the

cervical spine; cervical radiculopathy; schizoaffective disorder;

generalized anxiety disorder; posttraumatic stress disorder;

bipolar disorder; and cannabis dependence significantly limiting

him from performing basic work activities. (R.85–86.) Although the

ALJ found Mr. Joseph’s right shoulder impairment was not severe,

he still considered it when making the residual functional capacity

(“RFC”) determination. (R.86, 88-93.)

The ALJ also found that Mr. Joseph lacked an impairment or

combination of impairments that met or medically equaled the

severity of a listed impairment in 20 C.F.R. Part 404, Subpart P,

Appendix 1 that would automatically qualify him as disabled

regardless of age, education, or work experience. (R.86.) The ALJ

next determined that Mr. Joseph had the RFC to perform light work

pursuant to 20 CFR § 404.1567(b), subject to specified limitations

of: avoiding concentrated exposure to respiratory irritants;

performing simple tasks only; only occasionally making work-

related decisions; and having only occasional interaction with the

general public. (R.88.) The ALJ explained that although Mr.

Joseph’s impairments could reasonably be expected to cause his

alleged symptoms, Mr. Joseph’s “statements concerning the

intensity, persistence and limiting effects of” his symptoms were

“not entirely consistent with the medical evidence and other

evidence in the record for the reasons explained in [the]

decision.” (Id.)

The ALJ further determined Mr. Joseph was unable to perform

his past relevant work as a delivery driver or a counter attendant.

(R.94.) However, considering his age, education, work experience,

and RFC, the ALJ found Mr. Joseph could perform other jobs that

existed in significant numbers in the national economy. (Id.)

Specifically, the ALJ found Mr. Joseph could perform marker,

router, and assembler jobs that the vocational expert testified a

hypothetical person with Mr. Joseph’s profile could perform.

(R.95.) The ALJ concluded that because Mr. Joseph could perform

such jobs, he was not disabled and thus not entitled to DIB from

May 24, 2018, through the date of the decision. (Id.)

The Social Security Administration received Mr. Joseph’s

request for an appeal of the ALJ’s decision on April 21, 2021.

(R.11.) On June 8, 2021, the Appeals Council notified Mr. Joseph

that it found no basis to change the ALJ’s ruling, rendering it

the Commissioner’s final decision. (R.1.) On August 5, 2021, Mr.

Joseph commenced this action for judicial review of the

Commissioner’s final decision. (See ECF No. 1, Compl.)

Legal Standard

I. Standard of Review

A claimant may seek judicial review of the Commissioner’s

final decision by bringing a civil action in federal district court

pursuant to 42 U.S.C. § 405(g). “In reviewing a final decision of

the 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) (internal quotations omitted);

see Swainbank v. Astrue, 356 F. App’x 545, 547 (2d Cir. 2009)

(noting that a court “may set aside the Commissioner’s decision

only if the factual findings are not supported by substantial

evidence or if incorrect legal standards were applied”).

“‘Substantial evidence is more than a mere scintilla,’ and

must be relevant evidence that a ‘reasonable mind might accept as

adequate to support a conclusion.’” Duran v. Comm’r of Soc. Sec.,

618 F. Supp. 3d 94, 98 (E.D.N.Y. 2022) (quoting Halloran v.

Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)). “An ALJ’s finding is

considered supported by substantial evidence if any reasonable

factfinder could have made the same finding, even if substantial

evidence also supports the claimant’s position.” Benjamin v.

O’Malley, No. 21-CV-2912 (KAM), 2024 WL 1319560, at *4 (E.D.N.Y.

Mar. 28, 2024). “To determine whether the findings are supported

by substantial evidence, the reviewing court is required to examine

the entire record, including contradictory evidence and evidence

from which conflicting inferences can be drawn.” Mongeur v.

Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983).

In turn, inquiry into “legal error” involves considering

whether the claimant had a “‘full hearing under the

[Commissioner’s] regulations and in accordance with the beneficent

purposes of the [Social Security] Act.’” Duran, 618 F. Supp. 3d at

98 (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)).

“Remand is appropriate…where the ALJ applied the wrong legal

standard” and “is especially appropriate if more findings would

clarify the rationale for the ALJ's decision.” Santoro v. Comm'r

of Soc. Sec., No. 21-CV-2044 (KAM), 2023 WL 8177365, at *5

(E.D.N.Y. Nov. 27, 2023) (citing Duran, 618 F. Supp. 3d at 99).

II. Determination of Disability and Entitlements

To receive DIB, a claimant must be “disabled” pursuant to the

Social Security Act (“the Act”). See 42 U.S.C. § 423(a), (d); see

also Duran, 618 F. Supp. 3d at 97. A claimant is “disabled” when

“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 12

months.’” Duran, 618 F. Supp. at 97 (quoting § 423(d)(1)(A)). The

impairment must be of “such severity” that the claimant cannot do

his previous work or any other substantial gainful work existing

in the national economy. Id. (quoting § 423(d)(2)(A)). In

determining whether a claimant is entitled to benefits, the

“Commissioner must consider…‘(1) the objective medical facts [and

clinical findings]; (2) diagnoses or medical opinions based on

such facts; (3) subjective evidence of pain or disability ...; and

(4) the claimant's educational background, age, and work

experience.’” Id. (quoting Balodis v. Leavitt, 704 F. Supp. 2d

255, 262 (E.D.N.Y. 2010)).

Social Security Administration regulations require a “five-

step analysis” for evaluating disability claims: “‘(1) that the

claimant is not working, (2) that he has a “severe impairment,”

(3) that the impairment is not one [listed in Appendix 1 of the

regulations] that conclusively requires a determination of

disability, and (4) that the claimant is not capable of continuing

in his prior type of work, the Commissioner must find him disabled

if (5) there is not another type of work the claimant can do.’”

Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting

Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002)); see also

20 C.F.R. § 404.1520(a)(4) (outlining the “five-step sequential

evaluation process”). Claimant bears the burden of proof at steps

one through four; “at step five, the burden shifts to the

Commissioner.” Colgan v. Kijakazi, 22 F.4th 353, 358 (2d Cir.

2022).

Discussion

Mr. Joseph makes seven arguments: that the ALJ (1) erred in

finding his right shoulder impairment was not severe; (2) failed

to properly evaluate if Mr. Joseph met or equaled a medical listing

to conclusively determine disability; (3) incorrectly assessed Mr.

Joseph’s impairments when making the RFC findings; (4) improperly

analyzed Mr. Joseph’s testimony evidence against the record; (5)

failed to consider the entirety of certain findings supporting the

RFC determination; (6) erred in relying on the vocational expert’s

testimony; and (7) failed to consider Mr. Joseph’s ability to

sustain work when making the RFC finding. (ECF No. 10-1, Pl. Mem.

at 14-24.)

I. Substantial Evidence Supports the ALJ’s Evaluation of the

Shoulder Impairment as Not Severe

Step Two of the five-step sequence requires the ALJ to

evaluate “whether the claimant has a ‘severe impairment’ — i.e.,

an impairment or combination of impairments that ‘significantly

limits’ [his] ‘physical or mental ability to do basic work

activities’ — that has lasted or is expected to last for twelve

months or longer.” Prescott v. O'Malley, No. 21–CV–441 (EK), 2024

WL 1174400, at *1 (E.D.N.Y. Mar. 19, 2024) (citing 20 C.F.R. §

404.1509, 404.1520(a)(4)(ii), (c))).

“Courts in the Second Circuit have found that ‘[a] finding of

not severe should be made if the medical evidence establishes only

a slight abnormality which would have no more than a minimal effect

on an individual's ability to work.’” Bruno v. Colvin, No. 13-CV-

7298 (DLI), 2015 WL 4629225, at *7 (E.D.N.Y. Aug. 3, 2015) (quoting

Juarbe v. Astrue, 2011 WL 4542964, at *6 (D. Conn. Aug. 30, 2011),

report and recommendation adopted, 2011 WL 4542962 (D. Conn. Sept.

28, 2011)).

Mr. Joseph argues that the ALJ failed to accurately classify

his right shoulder impairment as severe, which he argues warrants

a remand. (ECF No. 10, Pl.’s Mem. 14–16.) However, substantial

evidence supports the ALJ’s finding that Mr. Joseph’s shoulder

impairment was not severe. The ALJ determined that Mr. Joseph’s

right shoulder impairment was not severe “because it did not last

for 12 months.” (R.86.) In reaching this conclusion, the ALJ

considered the record, and specifically Exhibit 1F, which he found

“indicate[d] that by May 2019, the claimant had full range of

motion[.]” (Id.)

Exhibit 1F states that Mr. Joseph was initially injured on

May 24, 2018, when a vehicle struck a truck that Mr. Joseph was

loading, causing him to fall to the ground. (R.284.) Exhibit 1F

further states that on April 18, 2019—within 12 months of Mr.

Joseph’s initial injury—Dr. Abiola Familusi examined Mr. Joseph

for a follow up and noted that Mr. Joseph “continues to improve.

His pain is now on and off. He is able to do his exercises without

any problems. He still has some difficulty bending down to pick up

anything from the floor. However, the back pain is improving. It

is about 3/10. No weakness of the lower extremities. No numbness

or tingling sensation of the lower extremities.” (R.311-313.) The

report specifically notes “minimal tenderness in the shoulder

area” and a plan to “[d]iscontinue physical therapy at this point”

and instead continue, inter alia, a “home exercise program[.]”

(R.312.) Exhibit 1F further states on May 15, 2019, Dr. Jeffrey

Passick conducted an orthopedic re-examination of Mr. Joseph’s

impairments. (R.373.) Dr. Passick found no impingement,

tenderness, or effusion in Mr. Joseph’s right shoulder. (R.376)4

Although the ALJ cited only to Exhibit 1F as part of his Step

Two analysis, his later analysis also considers that in a February

2020 report, Dr. Fkiaras examined Mr. Joseph and noted a somewhat

decreased range of motion in the right shoulder. (R.90.)

Accordingly, substantial evidence supports the ALJ’s finding that

Mr. Joseph’s shoulder impairment was not severe because it did not

last for twelve months, nor was expected to last for twelve months

4 Because the ALJ does not explicitly note in this section which part of Exhibit

1F he references, it is not clear whether he considered Dr. Passick’s May 2019

report in Exhibit 1F specifically for the severity analysis at Step Two.

However, the ALJ later notes that Dr. Passick’s May 2019 opinion is not

persuasive because although the opinion was “supported by a detailed report

containing his clinical findings on physical examination,” he continues that

“[h]is opinion that the claimant has no physical limitations at all, however,

is simply inconsistent with the longitudinal medical record.” (R.92.) The ALJ

appears to specifically disagree with Dr. Passick’s conclusion that the claimant

“had 0% orthopedic disability”; was “capable of performing all the tasks of

daily living and maintaining full employment without restrictions”; and had “no

physical limitations at all[.]” (Id.) Conflicting evidence in the record is for

the ALJ to resolve. See Difiglia v. Comm'r of Soc. Sec. Admin., No. 22-cv-6825

(KAM), 2024 WL 1332502, at *11 (E.D.N.Y. Mar. 28, 2024) (citing Veino v.

Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)).

or longer. See Duran, 618 F. Supp. 3d at 98 (“Substantial evidence

is more than a mere scintilla, and must be relevant evidence that

a reasonable mind might accept as adequate to support a

conclusion.” (internal quotations omitted)); see also Benjamin,

No. 21-CV-2912 (KAM), 2024 WL 1319560, at *4 (noting that “[a]n

ALJ's finding is considered supported by substantial evidence if

any reasonable factfinder could have made the same finding, even

if substantial evidence also supports the claimant's position”);

Difiglia v. Comm'r of Soc. Sec. Admin., No. 22-CV-6825 (KAM), 2024

WL 1332502, at *6 (E.D.N.Y. Mar. 28, 2024) (“If there is

substantial evidence in the record to support the Commissioner's

findings as to any fact, those findings are conclusive and must be

upheld.”).

In turn, Mr. Joseph relies in part on medical documentation

from immediately after or less than a year after his initial

injury, and in part on a later report from June 2019 that does not

speak clearly to his shoulder injury. (ECF No. 10-1, Pl.’s Mem.

14–16.) Mr. Joseph has not met his burden of proof at Step Two to

show he has a severe shoulder injury that lasted or was expected

to last for twelve months or longer. See Difiglia, No. 22-CV-6825

(KAM), 2024 WL 1332502, at *6 (“It is ‘up to the agency,’ however,

and ‘not this court, to weigh the conflicting evidence in the

record.’” (quoting Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118

(2d Cir. 1998))).

Further, even if the ALJ did incorrectly assess the right

shoulder impairment as not severe, the error would not warrant

remand because “when there are multiple impairments, and the ALJ

finds that only some of the impairments, but not others, are

severe,” as the ALJ did here, “any error in the severity analysis

is harmless because the ALJ continues with the with the [sic]

sequential analysis, and does not deny plaintiff's application

based the second step alone.” Kemp v. Comm'r of Soc. Sec., No. 10-

CV-1244 (GLS) (ATB), 2011 WL 3876526, at *8 (N.D.N.Y. Aug. 11,

2011), report and recommendation adopted, No. 10-CV-1244 (NAM)

(ATB), 2011 WL 3876419 (N.D.N.Y. Aug. 31, 2011); see also Tryon v.

Astrue, No. 10–CV–537 (MAD), 2012 WL 398952, at *3 (N.D.N.Y. Feb.

7, 2012) (finding that because the ALJ proceeded with the analysis

and included claimant's severe and non-severe impairments in the

RFC determination, there was no basis to remand this matter based

upon the ALJ's Step Two analysis.)

II. The ALJ’s Finding that Mr. Joseph’s Impairments Did Not Meet

or Equal the Applicable Listings was Supported by Substantial

Evidence

At Step Three, the Commissioner must decide whether any of

the claimant’s impairments meet or equal one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20

C.F.R. § 404.1520(a)(4)(iii), (d); § 404.1525. A claimant must

either “‘meet all of the specified medical criteria [in the

listing],’” Flores v. Comm'r of Soc. Sec., 644 F. Supp. 3d 53, 64

(S.D.N.Y. 2022) (quoting Sullivan v. Zebley, 493 U.S. 521, 530

(1990) (emphasis omitted)), or alternatively “show that his

impairment is ‘medically equivalent’ to a Listing, meaning that it

is ‘at least equal in severity and duration to the criteria of any

listed impairment,’” Id. (quoting 20 C.F.R. § 404.1526(a)).

Further, the ALJ need not “‘explicitly discuss every Listing

in his written opinion, and there is no error in failing to discuss

a particular Listing when substantial evidence indicates a

claimant did not satisfy the Listing.’” Id. (quoting Jones v.

Berryhill, 415 F. Supp. 3d 401, 419 (S.D.N.Y. 2019). If the ALJ

only cursorily mentions a particular Listing without providing an

“express rationale,” there is no error if the ALJ's determination

is otherwise supported by substantial evidence in the record.

Salmini v. Commissioner of Social Security, 371 F. App'x 109, 112

(2d Cir. 2010).

Mr. Joseph argues that the ALJ erred at Step Three in failing

to analyze whether Mr. Joseph’s impairments met or were medically

equivalent to Listing 1.15, which lists criteria for disorders of

the skeletal spine. (ECF No. 10-1, Pl.’s Mem. 17–19.) However,

Listing 1.15 replaced Listing 1.04, effective April 2, 2021. See

SSAR 15-1(4), 85 Fed. Reg. 79063 (Dec. 8, 2020). Because Mr. Joseph

brought his claim before the effective date, the ALJ properly

applied Listing 1.04 in his analysis. See Riddick v. Saul, No. 20-

cv-5396 (AMD), 2022 WL 784722, at *2 n.1 (E.D.N.Y. Mar. 15, 2022)

(applying Listing 1.04 because “Listing 1.04(A) was replaced by

Listing 1.15 effective April 2, 2021” and that “the plaintiff's

claim was brought before [] the effective date”).

The ALJ gave “[s]pecific consideration [] to listing 1.04

(disorders of the spine).” (R.86.) The ALJ found that “[t]he

medical evidence of record did not document signs, symptoms, and/or

laboratory findings indicating any impairment severe enough to

meet the criteria of any listed impairment[.]” (Id.) Citing to

specific portions of Exhibits 9F, 11F, and 18F, the ALJ noted that

“[m]any of the neurological examinations were either normal or

within normal limits[.]” (Id.)

The evidence the ALJ cited include reports indicating, for

example, normal neurologic findings and normal examinations of the

cervical spine, lumbar spine, and right shoulder (R. 659, 704, 712

803, 825.) Although the ALJ did not specifically analyze the cited

portions of the record, the record indicates that substantial

evidence supports his conclusion. See Perozzi v. Berryhill, 287 F.

Supp. 3d 471, 482 (S.D.N.Y. 2018) (rejecting claimant's contention

that remand is required, notwithstanding that the ALJ conducted

“no analysis whatsoever of the elements of [Listing 1.04]” because

“a court has the power to uphold an ALJ's conclusion at step three

of the analysis in the ‘absence of an express rationale...[where]

portions of the ALJ's decision and the evidence before him indicate

that his conclusion was supported by substantial evidence’”

(quoting Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982))).

Accordingly, substantial evidence supports the ALJ’s

conclusion that Mr. Joseph’s impairments did not meet or equal

Listing 1.04.

III. The ALJ Failed to Properly Analyze Mr. Joseph’s Subjective

Statements

Mr. Joseph argues that the ALJ erred in stating that his

testimony was inconsistent with the evidence of record. The Court

agrees.

Social Security regulations require a two-step process for

evaluating a claimant’s assertions of pain and other symptoms.

First, “the ALJ must decide whether the claimant suffers from a

medically determinable impairment that could reasonably be

expected to produce the symptoms alleged.” Genier v. Astrue, 606

F.3d 46, 49 (2d Cir. 2010) (citing 20 C.F.R. § 404.1529(b)). “If

the claimant does suffer from such an impairment, at the second

step, the ALJ must consider ‘the extent to which [the claimant's]

symptoms can reasonably be accepted as consistent with the

objective medical evidence and other evidence’ of record.” Id.

(quoting 20 C.F.R. § 404.1529(a)). In doing so, the ALJ must

consider certain factors “in evaluating the intensity and

persistence of a claimant's” subjective symptoms. Lao v. Colvin,

No. 14-CV-7507 (ADS), 2016 WL 2992125, at *15 (E.D.N.Y. May 23,

2016). “In this analysis, the ALJ must consider: (1) the claimant's

daily activities; (2) the location, duration, frequency, and

intensity of the pain; (3) precipitating and aggravating factors;

(4) the type, dosage, effectiveness, and side effects of any

medications taken to alleviate the pain; (5) any treatment, other

than medication, that the claimant has received; (6) any other

measures that the claimant employs to relieve the pain; and (7)

other factors concerning the claimant's functional limitations and

restrictions as a result of the pain.” Maldonado v. Comm'r of Soc.

Sec., No. 12-CV-5297 (JO), 2014 WL 537564, at *17 (E.D.N.Y. Feb.

10, 2014) (quoting Meadors v. Astrue, 370 F. App’x 179, 184 n.1

(2d Cir. 2010) (citing 20 C.F.R. § 404.1529(c)(3)(i)-(vii))).

Although the ALJ is “‘not require[d] to accept the claimant’s

subjective complaints without question,’” and the ALJ “‘may

exercise discretion in weighing the credibility of the claimant's

testimony in light of the other evidence in the record,’” Campbell

v. Astrue, 465 F. App'x 4, 7 (2d Cir. 2012) (internal quotation

omitted) (quoting Genier, 606 F.3d at 49), “[w]here the ALJ fails

sufficiently to explain a finding that the claimant's testimony

was not entirely credible, remand is appropriate.” Valet v. Astrue,

No. 10-CV-3282 (KAM), 2012 WL 194970, at *22 (E.D.N.Y. Jan. 23,

2012). Indeed, “[t]he determination or decision must contain

specific reasons for the weight given to the individual's symptoms,

be consistent with and supported by the evidence, and be clearly

articulated so the individual and any subsequent reviewer can

assess how the adjudicator evaluated the individual's symptoms.”

SSR 16-3P, 2017 WL 5180304 (Oct. 25, 2017); see also Williams v.

Berryhill, No. 17-CV-1660 (JMA), 2019 WL 1271647, at *5 (E.D.N.Y.

Mar. 19, 2019) (quoting similar language from SSR 96-7p, which

predated SSR 16-3p). In doing so, that ALJ should “specify” “any

of [claimant’s] statements” that are “inconsistent with medical

evidence in the record” and “explain why he chooses to discredit

them with reference to the applicable factors” in 20 C.F.R

§404.1529(c)(3)(i)-(vii). Maldonado, No. 12-CV-5297 (JO), 2014 WL

537564, at *17. Ultimately, “[w]here an ALJ rejects witness

testimony as not credible, the basis for the finding ‘must...be

set forth with sufficient specificity to permit intelligible

plenary review of the record.’” Acevedo v. Saul, 577 F. Supp. 3d

237, 246 (S.D.N.Y. 2021) (quoting Williams ex rel. Williams v.

Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988)).

Here, the ALJ “failed adequately to assess the credibility of

[Mr. Joseph’s] statements,” which is cause for remand. Valet, No.

10-CV-3282 (KAM), 2012 WL 194970, at *21-22. First, although the

ALJ addressed the first and second step of the analysis of Mr.

Joseph’s subjective complaints, the decision failed to specify

specific statements from Mr. Joseph “concerning the intensity,

persistence and limiting effects of [his] symptoms” that the ALJ

determined were not “entirely consistent with the medical evidence

and other evidence in the record[.]” (R.88.) Indeed, although the

ALJ states that he has followed the requirements of “20 CFR

404.1529 and SSR 16-3p,” nowhere does the ALJ specify any of Mr.

Joseph’s statements of his subjective symptoms “and explain why he

chooses to discredit them with reference to the applicable

regulatory factors[.]” Maldonado, No. 12-CV-5297 (JO), 2014 WL

537564, at *17. Although the ALJ briefly discusses Mr. Joseph’s

“daily activities” and some of his non-medication treatment (R.91-

92), he fails to discuss, for example, “the location, duration,

frequency, and intensity of” Mr. Joseph’s pain, although Mr. Joseph

testified to it at the hearing5; any “precipitating and aggravating

factors,” though Mr. Joseph also testified to not being able to

“bend down” or “stand up for a long time” and only being able to

“take just a couple steps” to get the blood flowing in his legs

(R.29-30); medications that the record indicates Mr. Joseph takes

to “alleviate [his] pain” and their “dosage, effectiveness, and

side effects”6; or “[o]ther factors concerning [Mr. Joseph’s]

5 Mr. Joseph testified that the most he can lift without feeling pain is a “can

of soda” because he does not “have the strength.” (R.34.) In October 2020, Dr.

Joshua Auerbach recommended Mr. Joseph have surgery because he “has failed

therapy and injections, and “unfortunately his pain persists despite

conservative treatment.” (R.795.) One month prior to Mr. Joseph’s testimony,

Dr. Marshall Kurtz agreed with Dr. Auerbach’s 2020 assessment and noted that

Mr. Joseph “has sustained a significant impact on quality of life and has

exhausted all reasonable conservative treatment options.” (R.825.)

6 Mr. Joseph testified to taking “Prozac, Trazodone, Olanzapine, Naprosyn,

Xanax, Buspirone, Zyprexa” and other medications such as oxycodone, muscle

relaxers, and antibiotics from his spinal surgery. (R.31-32.) This testimony is

supported by other medical reports in the record that list Mr. Joseph’s

medications. (R.765-788.)

functional limitations and restrictions due to pain or other

symptoms,” like Mr. Joseph’s daily use of a cane at the time of

his testimony, (R.33.); § 404.1529(c)(3)(i)-(vii).

Thus, because the ALJ insufficiently applied the factors in

§ 404.1529(c)(3), remand is appropriate. See Valet, No. 10-CV-3282

(KAM), 2012 WL 194970, at *22; see also Cabibi v. Colvin, 50 F.

Supp. 3d 213, 237 (E.D.N.Y. 2014) (finding improper analysis of

factors in § 404.1529(c)(3)(i)-(vii) a “serious flaw in [ALJ’s]

credibility determination”); Kane v. Astrue, 942 F. Supp. 2d 301,

314 (E.D.N.Y. 2013) (finding “ALJ's credibility analysis was

insufficient” where “ALJ did not explicitly refer to or discuss

any of the factors listed in 20 C.F.R. 404.1529(c)(3)” and

collecting cases); Pereyra v. Astrue, No. 10-CV-5873 (DLI), 2012

WL 3746200, at *15 (E.D.N.Y. Aug. 28, 2012) (noting that where

“the ALJ neglects to discuss at length his credibility

determination to the extent the reviewing court cannot decide

whether there are legitimate reasons for the ALJ's disbelief and

whether his decision is supported by substantial evidence, remand

is appropriate” and remanding where the ALJ failed “to discuss the

intensity, duration, and frequency of [claimant’s] pain” or

“address other methods Plaintiff employed to relieve her pain,”

specifically the use of, inter alia, a cane).

Indeed, the ALJ’s decision offers boiler-plate language as to

the assessment of Mr. Joseph’s subjective symptoms, then reviews

Mr. Joseph’s medical history and various parts of the medical

record. The failure to properly consider the credibility factors

is erroneous. Here, as in Williams v. Berryhill, the ALJ’s “initial

credibility determination [] prevent[ed] meaningful judicial

review” where the ALJ

used the boilerplate language that Plaintiff's

‘medically determinable impairments could reasonably be

expected to cause the alleged symptoms; [but his]

statements concerning the intensity, persistence and

limiting effects of these symptoms are not entirely

consistent with the medical evidence and other evidence

in the record for the reasons explained in this

decision.’ However, [the] ALJ [] then failed to explain

how Plaintiff's statements were incredible—he merely

recited Plaintiff's medical history and pointed to a few

limited activities Plaintiff indicated he could perform

in support of the RFC determination. That falls short of

a proper credibility analysis in accordance with the

Commissioner's regulations and case law.

No. 17-CV-1660 (JMA), 2019 WL 1271647, at *5 (internal citation

omitted) (emphasis in original).

Here, the ALJ’s decision, including the boiler-plate language

followed by a recitation of Mr. Josephs’ medical history, mirrors

the error in Williams. That the ALJ here offered a significant

summary of the medical records is not a substitute for properly

assessing Mr. Joseph’s subjective symptoms. See Smith v. O'Malley,

No. 23-CV-02339 (JLC), 2024 WL 1983881, at *13 (S.D.N.Y. May 6,

2024) (finding that the ALJ used the same boiler-plate language as

in Williams v. Berryhill and that, “as in Williams, the ALJ merely

recited Smith's medical history, which falls ‘short of a proper

credibility analysis in accordance with the Commissioner's

regulations and case law’” (quoting Williams, No. 17-CV-1660

(JMA), 2019 WL 1271647, at *5)).

Accordingly, because the ALJ “failed adequately to assess the

credibility of [Mr. Joseph’s] statements,” remand is appropriate.

Valet, No. 10-CV-3282 (KAM), 2012 WL 194970, at *21-22.

IV. Mr. Joseph’s Remaining Arguments

Mr. Joseph’s remaining arguments amount to: (1) arguing that

the ALJ erred in not considering the entirety of two consultative

examination reports—one from Dr. Fkiara and one from Dr. Fujiwaki—

when determining the RFC, thus warranting remand, (ECF No. 10-1,

Pl. Mem. at 22); (2) arguing that the ALJ failed to sufficiently

consider Mr. Joseph’s limitations when making the RFC finding of

Light Work, (Id. at 19); (3) arguing that the hypothetical

questions the ALJ asked the vocational expert did not fully reflect

all Mr. Joseph’s limitations, and thus the testimony is inadequate

to support the ALJ’s conclusions, (Id. at 23); and (4) appearing

to argue that the ALJ erred by failing to sufficiently focus on

Mr. Joseph’s ability to sustain work activities, (Id.).

To the extent Mr. Joseph argues that the ALJ erred in not

considering the entirety of two consultative examination reports—

one from Dr. Fkiara and one from Dr. Fujiwaki—when determining the

RFC, the argument is without merit. And as noted above, the ALJ

need not “mention[] every item of testimony presented to him or

have explained why he considered particular evidence unpersuasive

or insufficient to lead him to a conclusion of disability[.]”

Campbell, 465 F. App’x at 6; see also My-Lein L. v. Comm'r of Soc.

Sec., 551 F. Supp. 3d 100, 104 (W.D.N.Y. 2021) (“It is well settled

that the ALJ is not required to formulate the RFC by adopting any

one medical opinion in its entirety.”).

Mr. Joseph’s remaining arguments are that remand is

appropriate because the ALJ failed to sufficiently consider Mr.

Joseph’s limitations when making the RFC finding of Light Work;

because the hypothetical questions the ALJ asked the vocational

expert did not fully reflect all Mr. Joseph’s limitations; and

because the ALJ erred by failing to sufficiently focus on Mr.

Joseph’s ability to sustain work activities. Because the Court

concludes that the ALJ did not properly evaluate Mr. Joseph’s

subjective symptoms, and therefore it cannot “subject his RFC

determination to meaningful review,” the Court directs the

consideration of these arguments on remand. Meadors, 370 F. App'x

at 183, 185 (“Because…the ALJ did not properly evaluate the

Appellant's testimony regarding her pain, we are unable to give

his calculation of Appellant's RFC meaningful review. On remand

the ALJ must consider Appellant's subjective complaints of pain

under the proper standard and calculate her RFC accordingly.”).

Conclusion

For the foregoing reasons, Mr. Joseph’s motion for judgment

on the pleadings is GRANTED, the Commissioner’s motion is DENIED,

and this case is remanded for further proceedings consistent with

this Memorandum and Order. The Clerk of Court is respectfully

directed to enter judgment in favor of Mr. Joseph and close this

case,

SO ORDERED.

Dated: July 24, 2024 b =

Brooklyn, New York f? —*~

□ - eo we Ss □□□

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

23