The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANTHONY JOSEPH ALLEN,
MEMORANDUM & ORDER
Plaintiff, 23-CV-4897 (PKC)
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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PAMELA K. CHEN, United States District Judge:
Plaintiff Anthony Joseph Allen (“Plaintiff”) brings this action under 42 U.S.C. § 405(g)
(“Section 405(g)”) against the Commissioner of Social Security (“Commissioner”). Plaintiff seeks
judicial review of the decision of the Social Security Administration (“SSA”) denying his claim
for supplemental security income (“SSI”). The parties have cross-moved for judgment on the
pleadings. (Dkts. 8, 10.) For the reasons set forth below, the Court grants Plaintiff’s motion for
judgment on the pleadings and denies the Commissioner’s cross-motion. This case is remanded
for further proceedings consistent with this Memorandum and Order.
BACKGROUND
I. Factual Background & Procedural History
In 2016, Plaintiff was involved in a car crash while driving on a highway. (Administrative
Transcript, Dkt. 7 (“Tr.”)1 at 32.) During the crash, his car flipped over and caught on
fire. (Tr. 32). Plaintiff sustained injuries to his back, shoulder, and lower extremities in the
1 Page references prefaced by “Tr.” refer to the continuous pagination of the Administrative
Transcript (see Dkt. 7), appearing in the lower right corner of each page, and not to the internal
pagination of the constituent documents or the pagination generated by the Court’s CM/ECF
docketing system.
crash. (Tr. 32–33.) Since 2016, Plaintiff has had three surgeries related to these injuries. (Tr.
448.) The first surgery, in 2017, was for his shoulder injury. (Tr. 448.) Next, in 2018, Plaintiff
had a lumbar surgery for his back injury, and then in May 2021, he had another surgery for the
same back injury. (Tr. 448.) Plaintiff reports ongoing pain stemming from these injuries, though
he only takes over-the-counter pain relievers “for obvious reasons.” (Tr. 34, 36, 237.) Plaintiff
also reports that he has attention-deficit/hyperactivity disorder (“ADHD”). (Tr. 16, 51–52, 63, 67–
68.)
Plaintiff filed an application for SSI on November 22, 2020, alleging disability beginning
January 1, 2020 due to injuries sustained in the car crash. (Tr. 13, 32, 46.) SSA initially denied
Plaintiff’s claim on April 14, 2021. (Tr. 46.) SSA denied Plaintiff’s claim again upon
reconsideration on August 3, 2021. (Tr. 61.) At Plaintiff’s request, on January 25, 2022,
Administrative Law Judge (“ALJ”) Patrick Kilgannon held a telephonic hearing at which Plaintiff,
his counsel, and a Vocational Expert (“VE”) appeared. (Tr. 13, 28.) On May 4, 2022, the ALJ
issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security
Act (“the Act”). (Tr. 23.) The Appeals Council denied Plaintiff’s request for review of the ALJ’s
decision on April 28, 2023. (Tr. 1, 5.) On June 29, 2023, Plaintiff timely commenced this action.2
(Compl., Dkt. 1.)
2 Section 405(g) provides that:
[a]ny individual, after any final decision of the Commissioner of Social Security
made after a hearing to which he was a party, . . . may obtain a review of such
decision by a civil action commenced within sixty days after the mailing to him of
notice of such decision or within such further time as the Commissioner of Social
Security may allow.
42 U.S.C. § 405(g). “Under the applicable regulations, the mailing of the final decision is
presumed received five days after it is dated unless the claimant makes a reasonable showing to
the contrary.” Kesoglides v. Comm’r of Soc. Sec., No. 13-CV-4724 (PKC), 2015 WL 1439862, at
II. The ALJ’s Decision
The Commissioner employs a five-step inquiry to evaluate SSI claims. See McIntyre v.
Colvin, 758 F.3d 146, 150 (2d Cir. 2014); Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)
(citation omitted) (explaining that plaintiff bears the burden of proof at the first four steps of the
inquiry; the Commissioner bears the burden at the final step). At step one, the ALJ must determine
whether the claimant is engaging in substantial gainful activity. Talavera, 697 F.3d at 151 (citation
omitted). Here, the ALJ found that the claimant had not done so since November 22, 2020, the
application date. (Tr. 15.)
At step two, the ALJ must determine whether claimant has a medically determinable
impairment, or combination of impairments, that is “severe.” Talavera, 697 F.3d at 151 (citation
omitted). Here, the ALJ determined that the claimant suffered from the following severe
impairments: lumbar degenerative disc disease status-post fixation of bilateral pars defects,
bilateral shoulder degenerative joint disease status-post arthroscopic repairs, and morbid obesity.
(Tr. 16.) The ALJ further found that those impairments significantly limited Plaintiff’s ability to
perform basic work activities. (Tr. 16) Although Plaintiff alleged several other disabilities,
including hypothyroidism, vitamin D deficiency, and hypertriglyceridemia, the ALJ found these
disabilities to be “nonsevere,” reasoning that Plaintiff experienced no more than “mild limitations”
in his ability to perform basic work activities as a result of them. (Tr. 16.) Furthermore, the ALJ
found no evidence to support Plaintiff’s allegation of ADHD, pointing to a lack of support in the
*3 (E.D.N.Y. Mar. 27, 2015) (citing, inter alia, 20 C.F.R. §§ 404.981, 422.210(c)). Here, the
Commissioner’s decision became final when the Appeals Council denied review on April 28,
2023. Plaintiff commenced this action on June 29, 2023—62 days after the Appeals Council
denied review. Therefore, this action is timely.
treatment record, a lack of objective clinical signs or symptoms, the absence of medication to treat
the disorder, and Plaintiff’s “alert” conduct during various exams. (Tr. 16.)
At step three, the ALJ considers whether the claimant’s impairment meets or medically
equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R.
§ 404.1520(a)(4)(iii); see also 20 C.F.R. pt. 404, subpt. P, app. 1. Here, the ALJ determined that
Plaintiff’s impairment did not meet the criteria. (Tr. 16.) The ALJ explained that the “requisite
criteria” for the listed impairments are not reflected in Plaintiff’s medical records and that none of
Plaintiff’s examining physicians had stated findings that would satisfy the requirements of those
impairments. (Tr. 16)
At step four, the ALJ must determine the claimant’s residual functioning capacity (“RFC”).
This requires determining whether the claimant has the RFC to perform the requirements of his
past relevant work. Talavera, 697 F.3d at 151 (citation omitted). In this case, the ALJ noted that
Plaintiff had no past relevant work. (Tr. 21.) Finally, at step five, the ALJ must determine whether
the claimant is able to do any other work considering his RFC, age, education, and work
experience. Talavera, 697 F.3d at 151 (citation omitted). Here, the ALJ determined, based on a
variety of factors, that Plaintiff had the RFC “to perform sedentary work as defined in 20 CFR
416.967(a) except that includes the ability to lift, carry, push or pull ten pounds frequently,
stand/walk two hours and sit six hours in an eight-hour workday, with normal breaks, and can
occasionally climb, balance, stoop, kneel, crouch and crawl and can occasionally reach overhead
bilaterally.” (Tr. 16.) Specifically, the ALJ found that Plaintiff could work as a lens inserter, an
ink printer, or a carding machine operator. (Tr. 22.)
STANDARD OF REVIEW
Unsuccessful claimants for disability benefits under the Act may bring an action in federal
district court seeking judicial review of the Commissioner’s denial of their benefits. 42 U.S.C. §§
405(g), 1383(c)(3). In reviewing a final decision of the Commissioner, the court’s role 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, 697 F.3d at 151 (quoting Lamay v.
Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009)). “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.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (alterations and internal
quotation marks omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In
determining whether the Commissioner’s findings were based upon substantial evidence, “the
reviewing court is required to examine the entire record, including contradictory evidence and
evidence from which conflicting inferences can be drawn.” Id. (citation omitted). However, “it is
up to the agency, and not th[e] court, to weigh the conflicting evidence in the record.” Clark v.
Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). 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. 42 U.S.C. § 405(g); see also Cichocki v. Astrue, 729 F.3d 172, 175–76 (2d
Cir. 2013).
DISCUSSION
I. The ALJ Failed to Adequately Develop the Record
“Before determining whether the Commissioner’s final decision is supported by
substantial evidence under 42 U.S.C. § 405(g), ‘the court must first be satisfied that the ALJ
provided plaintiff with a full hearing under the Secretary’s regulations and also fully and
completely developed the administrative record.’” Ajibose v. Colvin, No. 15-CV-3346 (PKC),
2016 WL 8711342, at *7 (E.D.N.Y. Sept. 30, 2016) (internal quotation marks omitted) (quoting
Scott v. Astrue, No. 09-CV-3999 (KAM), 2010 WL 2736879, at *12 (E.D.N.Y. July 9, 2010)); see
also Reynoso v. Comm’r of Soc. Sec., No. 21-CV-6706 (PKC), 2023 WL 2632498, at *5 (E.D.N.Y.
Mar. 24, 2023) (“As a threshold matter, this Court must independently consider the question of
whether the ALJ failed to satisfy his duty to develop the [r]ecord.” (quotation omitted)). Even if
a plaintiff is represented by counsel, “it is the well-established rule in our circuit ‘that the social
security ALJ, unlike a judge in a trial, must on behalf of all claimants . . . affirmatively develop
the record in light of the essentially non-adversarial nature of a benefit’s proceeding.’” Moran v.
Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Lamay, 562 F.3d at 508–09); see also Pratts v.
Chater, 94 F.3d 34, 37 (2d Cir. 1996). As part of this duty, an ALJ must make all reasonable
efforts to obtain medical opinions from a treating source, including sending a follow-up request if
the first attempt fails. See 20 C.F.R. § 404.1512(b)(1)(i). Notably, “[m]edical opinions are more
than mere treatment notes.” Adamu v. Comm’r of Soc. Sec., No. 21-CV-1936 (PKC), 2024 WL
1259242, at *3 (E.D.N.Y. Mar. 25, 2024) (quoting Brown v. Comm’r of Soc. Sec., No. 20-CV-
5959 (KAM), 2023 WL 8828653, at *5 (E.D.N.Y. Dec. 21, 2023)). Medical opinions “must
‘explicitly address [the] claimant’s limitations and RFC.” Id. (quoting Reginald R. v. Comm’r of
Soc. Sec., No. 21-CV-6326 (CJS), 2023 WL 5608869, at *10 (W.D.N.Y. Aug. 30, 2023)).
Here, the Court finds that the ALJ insufficiently developed the record by failing to make
every reasonable effort to obtain medical opinions from Plaintiff’s treating physicians. Plaintiff
filed his SSI application after March 27, 2017, and so it is not subject to the “treating physician
rule.” Reynoso, 2023 WL 2632498, at *5. “Nonetheless, there is a growing consensus amongst
courts applying the new regulations that an ALJ’s obligation to develop the record still requires
her to obtain the opinion of a claimant’s treating physician.” Id.; see also Ayala v. Kijakazi, No.
20-CV-09373 (RWL), 2022 WL 3211463, at *35–36 (S.D.N.Y. Aug. 9, 2022) (“Under the new
regulations, courts often find that an informed decision could not be reached where an ALJ failed
to obtain opinion evidence from the plaintiff’s long-term treating physicians[.]”) (collecting cases);
Pomales v. Acting Comm’r of Soc. Sec., No. 22-CV-6009 (AEK), 2023 WL 6240627, at *6
(S.D.N.Y. Sept. 26, 2023) (collecting cases).
In this case, the ALJ did not obtain medical opinions from any of Plaintiff’s treating
physicians. (See generally Tr.) The treatment notes that the ALJ did have from Plaintiff’s treating
physicians did not “explicitly address [Plaintiff’s] limitations and RFC.” Adamu, 2024 WL
1259242, at *3; (see generally Tr. 346–552). At minimum, the ALJ should have sent medical
opinion requests to all of Plaintiff’s recent treatment providers, and should have sent follow-up
requests if the initial requests were ignored. See Skartados v. Comm’r of Soc. Sec., No. 20-CV-
3909 (PKC), 2022 WL 409701, at *4 (E.D.N.Y. Feb. 10, 2022) (“[A]n ALJ must make an initial
request for medical opinions and, if no opinion is received, make a follow-up request between 10
and 20 days after the initial request.” (citing Prieto v. Comm’r of Soc. Sec., No. 20-CV-3941
(RWL), 2021 WL 3475625, at *10–11 (S.D.N.Y. Aug. 6, 2021))). He did not do so. (See generally
Tr.) By failing to do so, the ALJ failed to sufficiently develop the record.
The Commissioner argues that the ALJ “satisfied any obligation to try and obtain opinions
from Plaintiff’s medical providers” by including medical opinion forms when requesting records
from Plaintiff’s treating doctors. (Comm’r’s Br., Dkt. 10-1 at 21.) However, these forms were
only sent to some of Plaintiff’s treating physicians. For example, though a request for evidence
was sent to Northwell Health Neurosurgery, the request did not contain a medical opinion form.
(Tr. 314–17.) In addition, the ALJ did not request a medical opinion from Dr. Krishnan at Island
Interventional Pain Management, who treated Plaintiff for his back pain after this most recent
surgery. (Tr. 496–503.) Though the ALJ did send forms requesting medical opinions to
Professional Physical Therapy and South Bay Medical (Tr. 328–33, 339–40), neither of those
providers ultimately submitted the requested opinions (see generally Tr.). And when they failed
to do so, the ALJ did not send follow-up requests for medical opinions. (See generally Tr.) As a
result, the ALJ had no medical opinions from any of Plaintiff’s treating physicians when
adjudicating Plaintiff’s SSI application. The ALJ’s failure to develop medical opinion evidence
from Plaintiff’s treating physicians constitutes a failure to adequately develop the record, and as a
result, Plaintiff’s case must be remanded for further consideration.
II. The ALJ Failed to Support the RFC Analysis with Substantial Evidence
A. The ALJ Improperly Relied on the Opinion of a Consultative Examiner Who
Did Not Consider Plaintiff’s Treatment Records
While failure to develop the record is sufficient grounds for remand, the Court also finds
that the ALJ failed to support the RFC with substantial evidence; i.e., “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Selian, 708 F.3d at 417
(quoting Richardson, 402 U.S. at 401); see also Talavera, 697 F.3d at 151. Medical records alone
cannot provide substantial evidence for an RFC determination; an “ALJ’s RFC determination must
be supported by a medical opinion in the record at that time.” Pearson v. Comm’r of Soc. Sec.,
No. 20-CV-3030 (AMD), 2021 WL 3373132, at *4 (E.D.N.Y. Aug. 3, 2021). “In general, an ALJ
should not rely heavily on the findings of a single consultative physician and non-examining
physicians.” Adamu, 2024 WL 1259242, at *3 (collecting cases).
The ALJ erred in relying on the opinion of a consultative examiner who did not have access
to, or did not review, Plaintiff’s treatment notes. Courts in this district have held that “where a
consultative examiner did not review important medical records, the consultative examiner’s
opinion cannot constitute . . . substantial evidence to support an RFC.” Benitez v. Comm’r of Soc.
Sec., No. 20-CV-5026 (RWL), 2021 WL 4239244, at *17 (S.D.N.Y. Sept. 17, 2021). Here, as
described above, the ALJ did not have any medical opinion evidence from any of Plaintiff’s
treating physicians. And at the time the ALJ issued his opinion, he did not have any medical
opinions from any physician—treating or consultative—who had examined Plaintiff after his May
13, 2021, spinal surgery. (See generally Tr.) As a result, the ALJ relied upon the opinions of
consultative examiners Dr. Andrea Pollack and Dr. Paul Herman.3 (Tr. 20–21)
There is no record of consultative examiner Dr. Pollack having been transmitted Plaintiff’s
prior treatment notes. Furthermore, though Dr. Pollack references Plaintiff’s medical history
generally (recounting the car crash and his past surgeries, for example) (Tr. 322), she makes no
specific mention of treatment notes or other records (Tr. 322–25). The ALJ failed to acknowledge
that Dr. Pollack wrote her opinion seemingly without reference to Plaintiff’s treatment notes. (Tr.
20–21.) Put simply, a one-time consultative exam absent the reference point that treatment notes
provide is unlikely to serve as an adequate evaluation of Plaintiff’s longitudinal health and is
grounds for remand. See Benitez, 2021 WL 4239244, at *15; see also Figueroa v. Saul, No. 18-
CV-4534 (JLC), 2019 WL 4740619, at *26 (S.D.N.Y. Sept. 27, 2019) (opinion of consultative
examiner who did not review all relevant medical information was not substantial evidence in
support of ALJ’s RFC determination); Citro v. Colvin, No. 16-CV-6564 (BCM), 2018 WL
1582443, at *14 (S.D.N.Y. Mar. 28, 2018) (similar); Garcia v. Comm’r of Soc. Sec., No. 22-CV-
2449 (FB), 2023 WL 4904751, at *3 (E.D.N.Y. Aug. 1, 2023) (similar); Pinnock v. Comm’r of
Soc. Sec., No. 22-CV-6858 (AMD), 2024 WL 1308597, at *8 (E.D.N.Y. Mar. 27, 2024) (similar).
3 Dr. Pollack conducted an internal medicine examination; Dr. Herman conducted a
psychiatric examination. (Tr. 20–21.) Here, it is not clear that either of these examiners had access
to Plaintiff’s treatment notes.
This is precisely the issue with Dr. Pollack, who only examined Plaintiff once and seemingly did
not have access to his treatment records.
B. The ALJ Improperly Cherry-Picked Evidence
In addition, the ALJ improperly cherry-picked evidence in finding that Plaintiff had the
RFC to perform sedentary work. “[An] ALJ may not ‘cherry-pick’ medical opinions, or selectively
cite treating notes or diagnostic imaging that support the ALJ’s own view while ignoring opinions
and evidence that do not.” Jones v. Saul, No. 19-CV-5542 (LGS) (BCM), 2020 WL 5775525, at
*12 (S.D.N.Y. Sept. 11, 2020), R&R adopted, 2020 WL 5775195 (Sept. 28, 2020). In reaching
his conclusion that Plaintiff had the RFC to perform sedentary work, the ALJ noted Dr. Pollack’s
findings from her April 2021 examination—namely, that Plaintiff had significant pain and various
restrictions due to his injuries—but “also note[d] th[at Dr. Pollack’s] exam took place prior to
claimant’s surgery, after which improvement was noted.” (Tr. 21.) In concluding that Plaintiff’s
condition improved after his May 2021 surgery, the ALJ ignored key parts of the treatment record,
cherry-picking evidence to support his conclusion. Notably, as a result of the ALJ’s overall failure
to develop the record, there is limited evidence about Plaintiff’s condition after the May 2021
surgery. (See generally Tr.) Indeed, the only evidence from that period of time are treatment
records from the office of Dr. Pendleton, Plaintiff’s surgeon (Tr. 448–83, 547–52), from Dr.
Krishnan at Island Interventional Pain Management (Tr. 496–503), and from Plaintiff’s primary
care provider4 (Tr. 504–46). The treatment records from Dr. Pendleton’s office do indicate that
Plaintiff no longer “has pain in his legs when he walks” and that Plaintiff “has had complete
resolution of radicular symptoms in his bilateral legs.” (Tr. 550.) However, these records also
4 The records from Plaintiff’s primary care provider relate to other medical issues (such as
obesity and routine vaccinations) and do not bear on the issue of Plaintiff’s injuries and surgical
history as alleged here.
indicate that even after his May 2021 surgery, Plaintiff continued to experience “midline back pain
that is worse when he is active.” (Tr. 550.) Indeed, Plaintiff sought treatment from Dr. Krishnan
beginning in October 2021 due to “progressively worsening” lower back pain. (Tr. 497.) Dr.
Krishnan’s records also indicate that Plaintiff had significant pain while at rest and that this pain
worsened with activity. (Id.) Thus, while it is, of course, possible that Plaintiff’s leg pain was
resolved by the May 2021 surgery, his back pain might have stayed the same or worsened
thereafter. The ALJ seemingly ignored these facts in concluding that Plaintiff’s overall condition
improved after the May 2021 surgery, especially Dr. Krishnan’s treatment notes, such that the ALJ
found that Plaintiff had the RFC to perform sedentary work that included, inter alia, lifting,
carrying, pushing, or pulling ten pounds frequently, and standing/walking two hours and sitting
six hours in an eight-hour workday. (Tr. 16, 20–21.) Courts “frequently” remand when “an ALJ
cherry-picks medical evidence in support of an RFC determination while ignoring or
mischaracterizing evidence to the contrary.” Williams v. Kijakazi, No. 20-CV-8469 (JLC), 2022
WL 799478, at *19 (S.D.N.Y. Mar. 16, 2022); Goggins v. Kijakazi, No. 23-CV-285 (PKC), 2024
WL 1259356, at *4 (E.D.N.Y. Mar. 25, 2024) (same). Admittedly, it is difficult to tell what
Plaintiff’s condition has been since the May 2021 surgery since there are no medical opinions in
the record from any doctors who have examined him in any capacity since that time. But the lack
of this relevant evidence in itself, as discussed, warrants remand.
CONCLUSION
For the reasons set forth herein, the Court grants Plaintiff’s motion for judgment on the
pleadings and denies the Commissioner’s cross-motion. The Commissioner’s decision is vacated,
and this action is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further
consideration consistent with this Memorandum and Order. The Clerk of Court is respectfully
requested to enter judgment and close this case.
SO ORDERED.
/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: August 29, 2024
Brooklyn, New York