# Kelly v. O'Malley

> District Court, E.D. New York · December 16, 2024

URL: https://www.frixlaw.com/law-library/cases/10761275

## Case

- **Court:** District Court, E.D. New York
- **Decided:** December 16, 2024
- **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/10761275

## How later opinions describe it (automated extraction)

- holding, where there were numerous gaps in the administrative record “that should have prompted the ALJ to pursue additional information regarding [claimant’s] medical history”, ALJ “should have taken steps” to have medical source supplement its findings
- finding remand “particularly appropriate” where ALJ failed to obtain adequate information from treating physicians and potentially relevant information from other doctors

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
MAUREEN ANNE KELLY,

Plaintiff, MEMORANDUM & ORDER
20-CV-5318 (JS)
-against-

COMMISSIONER OF SOCIAL SECURITY,1

Defendant.
--------------------------------X
APPEARANCES

For Plaintiff: John L Patitucci
Turley, Redmond, & Rosasco
3075 Veterans Memorial Highway, Suite 200
Ronkonkoma, New York 11779

For Defendant: John P. Fox, Esq., Special A.U.S.A.
United States Attorney’s Office
Eastern District of New York
c/o SSA, Office of Program Litigation
6401 Security Boulevard
Baltimore, Maryland 21235

SEYBERT, District Judge:

Plaintiff Maureen Anne Kelly (“Plaintiff”) brings this
action pursuant to Section 205(g) of the Social Security Act (the
“Act”), 42 U.S.C. § 405(g), challenging the denial of her
application for Social Security Disability Benefits by the

1 At the time Plaintiff commenced this action, the Commissioner
of Social Security was Andrew Saul. The current Commissioner is
Martin O’Malley. Pursuant to Rule 25(d) of the Federal Rules of
Civil Procedure, the Clerk of Court is directed to substitute
Martin O’Malley for Andrew Saul. For convenience, the Court will
simply refer to the Defendant as “Commissioner”.
Commissioner of Social Security (the “Commissioner”). (Compl., ECF
No. 1.) Pending before the Court are the parties’ cross-motions
for judgment on the pleadings. (Pl. Mot., ECF No. 11; Pl. Support

Memo, ECF No. 11-1; Comm’r X-Mot., ECF No. 13; Comm’r Support Memo,
ECF No. 13-1; Pl. Reply, ECF No. 14; see also Admin. Tr., ECF No.
10.2.) For the following reasons, Plaintiff’s Motion is GRANTED,
and the Commissioner’s Cross-Motion is DENIED.
BACKGROUND
I. Procedural History
On March 16, 2018, Plaintiff applied for disability
insurance and supplemental security income benefits alleging
disability as of December 22, 2017 (hereafter, the “Onset Date”),
due to complications with multiple sclerosis and congestive heart
failure. (R. 108-18; 133–37). Her application was denied on
September 19, 2018. (R. 139-53). On September 28, 2018, Plaintiff

appealed the denial of her application and requested a hearing
before an Administrative Law Judge (“ALJ”). (R. 155-57).
Accompanied by counsel, on January 31, 2020, Plaintiff
appeared before ALJ Alan Berkowitz for a disability hearing
(hereafter, the “Disability Hearing”). (R. 78). Plaintiff and Ms.
Holland, a vocational expert (“VE”), both testified at said Hearing
(R. 78–106). On March 30, 2020, the ALJ Alan Berkowitz issued an

2 Hereafter, the Court shall cite to the Administrative Transcript
as “R” and provide the relevant Bates Stamp number(s).
unfavorable decision, determining Plaintiff had the residual
functional capacity (“RFC”) to perform light work with various
non-exertional limitations (hereafter, the “ALJ Decision”) (R. 15-

29).
Plaintiff appealed the ALJ Decision (R. 207-09); she was
granted time to submit further “statements about the facts and the
law in this case” or any “additional evidence”. (R. 12-13).
Additional evidence was required to show a “reasonable
probability” it “would change the outcome of the decision” and
Plaintiff was required to show good cause for why such evidence
was not been submitted previously. (Id.) Plaintiff submitted
additional medical evidence from her neurologist, Dr. Brian
Apatoff. (R. 34-52). Finding the medical evidence from Dr. Apatoff
“did not show a reasonable probability that it would change the
outcome of the decision”, on October 1, 2020, the Appeals Officer

denied Plaintiff’s request for review, making the ALJ Decision the
final decision of the Commissioner. (R. 1-3). Thereafter,
Plaintiff sought judicial review.
Plaintiff commenced this action on November 3, 2020.
(See Compl.) On July 27, 2021, Plaintiff moved for judgment on
the pleadings. On October 15, 2021, the Commissioner cross-moved.
On September 24, 2021, Plaintiff filed her reply. The
Cross-Motions are ripe for decision.
II. Evidence Presented to the ALJ
The Court first summarizes Plaintiff’s testimonial
evidence and employment history before turning to her medical

records and the VE’s testimony.
A. Testimonial Evidence and Employment History
At the time of the Disability Hearing, Plaintiff was 59
years old. (R. 81). Plaintiff finished high school when she was
16-years-old and college when she was 20-years-old. (R. 85)
Plaintiff experienced her first multiple sclerosis exacerbation
during college (R. 85). In her 20’s, Plaintiff: had various medical
complications; was diagnosed with Graves’ disease and carpal
tunnel; and, received intravenous (“IV”) infusions of steroids.
(R. 85). Plaintiff was 38-years-old when she was formally diagnosed
with multiple sclerosis. (R. 84). For at least 20 years, Plaintiff
has experienced lingering pain in her right leg, which she

described as feeling “on fire” and as a “pins and needles”
sensation. (R. 86, 93). Plaintiff additionally described
experiencing blurred vision and a stabbing pain in her left eye.
(R. 86).
In 2013, Plaintiff suffered a massive heart attack as a
result of a 100 percent blocked valve. (R. 90.) Thereafter, she
received a stent, pacemaker, and internal defibrillator. (R.
90-91.) Plaintiff testified she suffers from extreme fatigue,
which can impede her ability to drive, e.g., causing her to have
to pull over up to two times when driving to work. (R. 91.) She
also stated she experiences blurred vision, which was problematic
in dealing with computers, and experiences cognitive problems.

(R. 92.)
From 1997 through 2003, Plaintiff worked as vice
president of financial operations for Lenox Hill Hospital. (R.
263). In that role, she negotiated contracts on behalf of
hospitals, doctors, and insurance companies. (R. 264). Although
diagnosed with multiple sclerosis in 1988, Plaintiff did not
disclose her illness for most of her tenure because she was able
to perform all job functions effectively, only experiencing
limited flare ups. (R. 268). Then, from 2004 to 2011, Plaintiff
worked as an associate executive director at Providence House, a
social service agency. (R. 265). Plaintiff was responsible for
all business-related functions. (-Id-.-). Plaintiff fully disclosed

her health issues prior to being hired; further, this position
allowed for one day off per work week and was relatively less
stressful. (R. 268). Next, from 2012 to 2017, Plaintiff worked as
a chief operating officer at a school for disabled children. (R.
266). In that position, Plaintiff oversaw accounting, purchasing,
technology, and business-related functions. (Id.) Plaintiff was
afforded the opportunity to frequently work from home, which was
significant on hot days when Plaintiff’s multiple sclerosis
symptoms were exacerbated. (R. 268).
Plaintiff further reported her ability to process
information and produce reports had steadily declined. (R. 268).
Blurred vision issues, chronic exhaustion, and gait issues were

daily challenges the Plaintiff endured. (R. 268). Plaintiff
detailed having trouble sitting still due to the pain in her leg.
(R. 93). Plaintiff also had: high blood pressure; acid reflux;
coronary artery disease status post-converted defibrillator; high
cholesterol; depression (R. 93); difficulty concentrating; and,
experienced short-term memory loss (R. 97). Further, Plaintiff
often needed to sleep at her place of employment due to
overwhelming fatigue (R. 97). She testified she could walk only
three blocks before being overcome by fatigue and needing a break.
(R. 99.)
B. Medical Evidence
1. Brian Richard Apatoff, M.D.

On April 30, 2018, Dr. Brian Apatoff, M.D. (“Dr.
Apatoff”), Plaintiff’s treating neurologist, wrote a statement of
disability (hereafter, the “2018 Apatoff Statement”), which
included the following information. (R. 428). Plaintiff was
diagnosed with multiple sclerosis in 1988 by abnormal brain and
spinal MRIs, following optic neuritis with loss of vision in her
left eye; she suffered leg numbness and weakness. (Id.) In
addition, Plaintiff had hypertension, myocardial infarction, and
cardiac arrhythmia with a permanent pacemaker placement. (Id.)
Plaintiff was on interferon-beta-la chemotherapy injections three
times weekly to treat her condition, as well as nine other
medications for her complicated diseases. (Id.) Plaintiff had a

left wrist fracture in addition to: blurred vision; fatigue: leg
weakness; bladder control difficulty; and cognitive complaints.
(Id.) Upon examination, Dr. Apatoff reported Plaintiff had left
optic neuropathy and ataxic paraparesis, with reduced vibratory
sensation in the feet. (Id.) He opined Plaintiff was completely
disabled and unable to work in any capacity as of her Onset Date.
(Id.)
On October 10, 2019, Dr. Apatoff completed an assessment
of Plaintiff’s condition (hereafter, the “2019 Apatoff
Assessment”). (R. 425). He reported having begun treating
Plaintiff in 1998 due to her multiple sclerosis. (Id.) He listed
Plaintiff reporting experiencing the following symptoms: blurred

vision; numbness; weakness; difficulties with bladder and bowel
control; and, fatigue. (Id.) Dr. Apatoff further noted Plaintiff
had limited activity due to her fatigue and vision issues, in
addition to unsteady gait, vertigo, and dizziness. (R. 427). His
clinical findings regarding Plaintiff included difficulty
ambulating, neuropathy, unsteady gait, and fatigue. (Id.) Dr.
Apatoff recommended quarterly follow-ups, with telephone
conferences in between, if necessary. (R. 426). Dr. Apatoff opined
Plaintiff could sit, stand, or walk one hour within a workday, in
addition to lifting up to 10 pounds for one hour within the
workday. (Id.) He indicated Plaintiff could operate a motor
vehicle. (Id.) However, Plaintiff could not: climb; twist; bend;

reach above shoulder level; perform fine finger movements; or
perform eye/hand movements during the day. (Id.) Nor could
Plaintiff lift anything greater than 10 pounds or push or pull
objects at all. (Id.) Dr. Apatoff reported, due to the
unpredictability of multiple sclerosis, Plaintiff’s treatment plan
could vary according her presenting symptoms. (R. 427).
2. Raul Mendoza, M.D.
On December 5, 2017, shortly before Plaintiff’s Onset
Date, Plaintiff saw cardiologist Dr. Raul Mendoza (“Dr. Mendoza”),
for a cardiac work-up, stress test, and an echocardiogram. (R.
396). Dr. Mendoza documented Plaintiff’s medical history,
including: congestive heart failure; coronary artery disease;

hypertension; hyperlipidemia; depression; and, multiple sclerosis.
(Id.) The Doctor’s assessments revealed: atherosclerotic heart
disease of the native coronary artery without angina pectoris; the
presence of coronary angioplasty implant and graft; old anterior
myocardial infarction; and, hyperlipidemia. (R. 397). On April
23, 2018, and November 5, 2018, Plaintiff had follow-up
appointments with Dr. Mendoza. (R. 399, 432.) At said
appointments, Plaintiff denied: chest pain; chest tightness;
fainting; jaw pain; lower extremity swelling; orthopnea;
palpitations; paroxysmal nocturnal dyspnea; syncope; or
implantable cardioverter-defibrillator (“ICD”) shocks. (R. 399,
432-33.)

On March 11, 2019, Plaintiff returned to Dr. Mendoza
because she was suffering a vertigo episode. (R. 435). Upon a
cardiovascular examination, Dr. Mendoza reported Plaintiff was:
neurologically alert; oriented within normal limits; and, lacking
chest tenderness. (R. 436). He began Plaintiff on a treatment of
Meclizine, to be taken once daily, as needed. (Id.)
3. Brett Lenart, M.D. and Bennett Brown, M.D.
After enduring a wrist injury from a fall, on January 3,
2018, Plaintiff saw orthopedic specialist Brett Lenart, M.D. (“Dr.
Lenart”). (R. 363-65.) Dr. Lenart documented Plaintiff suffering:
wrist swelling; tenderness over the distal radius; and, pain with
wrist motion. (R. 364). An X-ray examination further revealed a

fracture. (Id.) The Doctor directed Plaintiff to: use a splint,
ice, and Tylenol for pain: and, elevate her wrist. (Id.) On
January 5 and 12, 2018, Plaintiff had follow-up examinations with
Dr. Bennett Brown (“Dr. Brown”), a physician who practiced with
Dr. Lenart. (R. 366-71). She had a third follow-up appointment
with Dr. Brown on February 2, at which time Plaintiff reported
both her wrists felt better despite increased swelling. (R. 372).
On March 2, Plaintiff had a final visit with Dr. Brown, who noted
Plaintiff was doing well; he recommended physical therapy and
cleared Plaintiff for light activities to the extent she could
tolerate same. (R. 375-77).
4. Chantale Vante, M.D.

On June 15, 2018, Plaintiff saw internist Chantale
Vante, M.D. (“Dr. Vante”), for a consultative examination.
(R. 400-06). Plaintiff relayed she suffered from: multiple
sclerosis for about 30 years; coronary artery disease status post
ICD implantation; hypertension; hyperlipidemia; depression; and
injury to the left forearm. (R. 401). Plaintiff reported her
multiple sclerosis was being treated with Rebif injections, 44 mcg
three times per week, with no complications. (Id.) She further
reported, among other things, having an ICD implantation in 2013
and a stent placement in 2015; relatedly, Plaintiff did not
complain of current chest pain or shortness of breath related to
coronary artery disease. (R. 401-02.) The Doctor also noted the

various medications Plaintiff was then taking, including Cymbalta
and Lexapro to treat Plaintiff’s depression. (Id.) Dr. Vante
also recorded Plaintiff having previously injured her forearm.
(Id.)
During the consultative examination with Dr. Vante,
Plaintiff described her physical abilities as being able to: sit
for two to three hours at a time; stand for two hours; walk one to
two city blocks; and, climb one flight of stairs using the
handrail. (R. 402). As for her activities of daily living,
Plaintiff stated: once a week, she will cook, clean, launder, and
shop; she is able to shower, bathe, and dress herself; she watches
television, listens to the radio, reads, and socializes with

friends. (Id.)
Upon examination, Dr. Vante observed, inter alia,
Plaintiff: had 20/25 corrected vision in both eyes; walked with a
normal gait; did not appear to demonstrate any acute distress; had
a regular heart rhythm; and had normal results for the examination
of her chest and lungs, abdomen, musculoskeletal, neurologic, and
extremities. (R. 403-04.). Based on these findings, Dr. Vante
opined Plaintiff had a good prognosis with no functional
limitations. (R. 404.)
5. C. Li, M.D.
On July 2, 2018, an agency medical consultant, C. Li.,
M.D. (“Dr. Li”), reviewed Plaintiff’s information and, without the

benefit of examining her, provided an opinion regarding the
Plaintiff’s physical limitations. (R. 115). Dr. Li reported
Plaintiff could: occasionally carry and lift 50 pounds; could
frequently carry and lift 25 pounds; and, could stand and sit for
about 6 hours during an 8-hour workday. (R. 116.) Hence, according
to Dr. Li, Plaintiff was able to engage in sustained sedentary
work, i.e., she was not disabled. (R. 118.)
6. Claude-Aline Charles, Psy.D.3
On August 23, 2018, Claude-Aline Charles, Psy.D. (“Dr.
Charles”), conducted a psychiatric consultative evaluation of the

Plaintiff. (R. 414-18). Plaintiff reported leaving employment
due to increased challenges with her memory. (R. 414). Plaintiff
reported two medical hospitalizations in 2013, one for a heart
attack and another to undergo a procedure for a pacemaker and a
defibrillator. (Id.) She further reported having irregular sleep
due to stress and depressive symptoms such as irritability and
fatigue/loss of energy. (R. 415). In addition, Plaintiff stated
she had cognitive struggles with short-term memory deficits,
concentration difficulties, organizational difficulties, as well
as long-term memory deficits. (Id.) Plaintiff stated she was
able to dress, bathe, and groom herself, though at a slow pace.
(R. 416). Plaintiff was also able to drive, as well as, manage her

own finances. (Id.) Plaintiff spent most of her time watching
television, doing crossword puzzles, going out to dinner, and using
a laptop. (Id.)

3 The acronym “Psy.D.” stands for Doctor of Psychology. See LIU
Post: Psy.D vs Ph.D, available at
https://liu.edu/post/academics/school-of-health-
professions/programs/doctor-of-psychology/psyd-vs-phd (last
viewed Dec. 2, 2024). It is “similar to the Ph.D. (Doctor of
Philosophy) and the Ed.D. (Doctor of Education) in academic
standing” but with a greater focus on clinical training. Id.
Plaintiff denied any history of psychiatric
hospitalizations, has never been enrolled in any mental health
services, and was been prescribed Cymbalta and Lexapro by her

neurologist. (R. 414). The Doctor listed other medication
Plaintiff was taking, but was unable to provide dosages since
Plaintiff failed to bring that information to the examination.
(Id.)
Dr. Charles found Plaintiff cooperative during the
interview with adequate social skills. (R. 415). The Doctor
documented Plaintiff as presenting: a normal appearance; fluent
speech; coherent thought process; and, a neutral mood. (Id.)
Plaintiff’s attention and concentration were mildly impaired, but
she was able to count and perform simple calculations. (Id.)
Plaintiff’s “[m]emory skills were fairly intact.” (Id.) Her
intellectual functioning appeared to be average to above average,

with her general fund of information being appropriate to her
experience. (Id.) Dr. Charles noted Plaintiff’s insight and
judgment were good. (Id.)
Dr. Charles opined Plaintiff had no limitations in the
following: understanding, remembering, or applying simple
directions and instructions; using reason and judgment to make
work-related decisions; interacting adequately with supervisors,
coworkers, and the public; regulating emotions; controlling
behavior; and, maintaining her well-being. (R. 417). However,
Plaintiff had mild limitations in the following: sustaining
concentration; performing tasks at a consistent pace; maintaining
personal hygiene; having appropriate attire; and, being aware of

normal hazards and taking appropriate precautions. (Id.) Dr.
Charles concluded Plaintiff had mild to moderate limitations in
understanding, remembering, or applying complex directions and
instructions, which limitations were attributed to distractibility
and anxiety. (Id.) Based on her findings, Dr. Charles opined
Plaintiff’s psychiatric problems did not appear to be significant
enough to interfere with her ability to function on a daily basis.
(Id.)
7. Kristen Gawley, Ph.D.
On September 4, 2018, Kristen Gawley, Ph.D. (“Dr.
Gawley”), an agency psychological consultant who did not
personally examine Plaintiff, reviewed Plaintiff’s claim and

provided a medical opinion. (R. 113-114). Dr. Gawley confirmed
the evidence and reported Plaintiff had a history of depression
and used medications Cymbalta and Lexapro as treatment. (R. 114).
Plaintiff’s cardiology note indicated PMH of depression. (Id.)
Dr. Gawley agreed with Dr. Charles’ psychiatric consultative
evaluation thatPlaintiff would have some mild limitations in
understanding, remembering, applying information, concentrating,
persisting, and maintaining pace. (Id.) The Doctor further agreed
Plaintiff had no limitation in interacting with others or
adapting/managing herself. (Id.) She concluded the limitations
were not significant enough to interfere with functioning. (Id.)
Further, Dr. Gawley opined Plaintiff appeared able to: follow

supervision; relate appropriately with others; and respond
appropriately to changes in the workplace. (Id.)
8. Emergency Department Personnel: Mathew Lurin M.D.;
Amrinder Rane, PA; Geraldine Abbey-Mensah, M.D.;
and Raul Mendoza, M.D.

On March 8, 2019, Plaintiff presented at an emergency
department, complaining of dizziness associated with intermittent
blurry vision. (R. 472). Upon a physical examination, Plaintiff:
was found to be well; had no lymph node enlargement; had clear
pupils, normal cardiac rate, unlimited range of motion; and, did
not have muscle or joint tenderness. (R. 474). She was alert; her
gait, posture, and coordination were normal. (Id.) A CT-scan was
performed; Plaintiff’s results indicated she had small vessel
disease as evidenced by her periventricular and subcortical white
matter hypodensity. (R. 477). A chest X-ray showed no evidence of
acute pulmonary disease. (R. 478). Plaintiff’s electrocardiogram
(“ECG”) exhibited normal sinus rhythm, with low voltage QRS, but
did not rule out anterior infarct; the ECG was deemed abnormal.
(R. 480). Plaintiff was diagnosed with a urinary tract infection.
(R. 478.) Her dizziness was treated with Meclizine, which
alleviated same. (Id.) Plaintiff was discharged in a stable
condition; she stated she would follow up with her neurologist and
primary care provider. (Id.)
9. Lawrence Kanner, M.D.

On May 28, 2019, Plaintiff presented for a routine device
follow-up of her implanted defibrillator with Lawrence Kanner,
M.D. (“Dr. Kanner”). (R. 439–40.) At that time, Plaintiff did not
have any device-related complaints. (R. 439). Dr. Kanner
documented Plaintiff felt generally well with normal findings; he
advised her to continue remote monitoring and to have a routine
device follow-up in six months. (R. 440).
C. The VE’s Testimony
At the 2020 Disability Hearing, the VE testified
Plaintiff had worked as a hospital insurance representative and a
controller, both of which required sedentary exertion. (R. 102).
When presented with a hypothetical aligning with Plaintiff’s

vocational profile and residual functional capacity (“RFC”), the
VE testified said hypothetical individual would be able to perform
Plaintiff’s past work. (R. 104). However, when the ALJ presented
the additional scenario that the subject hypothetical individual
would be on-task only 80 percent of the day and be absent three
days a month, all past work would be eliminated. (R. 104-05).
Plaintiff’s counsel also inquired whether not being able to perform
complex task would inhibit engaging in prior work, to which the VE
testified such restriction would eliminate prior work. (R. 105.)
III. Purported “New Evidence” Presented to the Appeals Council
Plaintiff submitted additional evidence to the Appeals
Council after issuance of the ALJ Decision. (R. 34-76). It

consisted of records from Plaintiff’s neurologist, Dr. Brian
Apatoff. (R. 34-52). Included in the new submissions was the
record of an 1988 MRI performed on Plaintiff’s thoracic spine,
which revealed multiple elongated hyperintense intra-medullary
lesions from T6 through T10. (R. 36). There was also a record of
a June 2000 cranial MRI examination, which showed Plaintiff had
scattered hyperintensities in the white matter of the cerebral
hemispheres bilaterally. (R. 37). Further, the newly offered
evidence included handwritten treatment records from: November 1,
2017; February 5, 2018; April 30, 2018; May 30, 2018; October 24,
2018; June 27, 2019; October 10, 2019; and February 12, 2020.
(R. 44-52). While partially illegible, Dr. Apatoff’s records

appear to include Plaintiff’s repeated complaints of: stress;
fatigue; constipation; limited activity; chronic pain; depression;
cognitive dysfunction; and, weakness. (Id.)
Additionally, Dr. Apatoff prepared a statement of
disability on Plaintiff’s behalf, dated April 23, 2020 (hereafter,
the “2020 Statement”). (R. 34-35). In his 2020 Statement, Dr.
Apatoff explained: he had been treating Plaintiff since 1985 when
she presented with optic neuritis of the left eye involving
complete loss of vision; and, Plaintiff has experienced subsequent
relapsing numbness, pain, and weakness of the arms and legs.
(R. 34). The Doctor further reported MRIs performed on Plaintiff
showed multiple lesions indicative of multiple sclerosis, which

diagnosis was confirmed by a lumbar puncture. (Id.) Dr. Apatoff
stated that, for the prior 22 years, Plaintiff has been seen every
four-to-six for relapsing remitting multiple sclerosis. (Id.)
Moreover, Plaintiff was on thrice-weekly injections of
interferon-beta chemotherapy, but severe attacks of symptoms
required one-to-three days of high-dose IV Solumedrol
corticosteroids. (Id.) Dr. Apatoff reported four major multiple
sclerosis relapses resulted in Plaintiff’s long-term absences from
work: in 2004; in 2006; in 2011; and, in 2017. (Id.) He also
stated that in 2013, Plaintiff was diagnosed with severe heart
disease, “another significant medical comorbidity”. (Id.) The
Doctor opined, despite “active ongoing treatment”, Plaintiff

experienced progressive disability with: visual loss; leg weakness
with gait impairment; numbness and pain in the extremities;
impaired bladder control; depression; and pathologic fatigue with
cognitive impairment despite the ongoing treatment. (R. 35.) He
concluded, based upon his being a “Board-Certified Neurologist
specializing in multiple sclerosis” that, having suffered from
multiple sclerosis for 35 years, Plaintiff “experienced
progressive disability” “prevent[ing] her from working in any
capacity” since her Onset Date. (Id.)
DISCUSSION
I. Standard of Review
When reviewing a final decision from the Commissioner,

a district court must “conduct a plenary review of the
administrative record to determine if there is substantial
evidence, considering the record as a whole, to support the
Commissioner’s decision and if the correct legal standards have
been applied.” Rucker v. Kijakazi, 48 F.4th 86, 90–91 (2d Cir.
2022) (quoting Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir.
2019)). District courts will overturn an ALJ’s decision only if
the ALJ applied an incorrect legal standard, or if the ALJ’s ruling
was not supported by substantial evidence. Id. (citing Talavera
v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)). “[S]ubstantial
evidence . . . 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) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)); see also Del Priore v. Comm’r
of Soc. Sec., No. 17-CV-5709, 2019 WL 4415279, at *2 (E.D.N.Y.
Sept. 16, 2019) (same; quoting Moran v. Astrue, 569 F.3d 108, 112
(2d Cir. 2009)).

[Remainder of page intentionally left blank.]
II. The ALJ’s Decision and the Five-Step Disability Analysis4
Initially, the ALJ found Plaintiff met the insured
status requirement through December 31, 2020. (R. 18). The ALJ

then applied the five-step disability analysis and concluded
Plaintiff was not disabled from her Onset Date through March 30,
2020, the date of the ALJ Decision. (R. 19-29); see also 20 C.F.R.
§ 404.1520.
At step one, the ALJ found Plaintiff had not engaged in
substantial gainful activity since her alleged Onset Date.
(R. 20).
At step two, the ALJ determined Plaintiff had the
following severe impairments: multiple sclerosis and a myocardial
infarction with congestive heart failure/defibrillator insertion.
(R. 21). The ALJ concluded Plaintiff’s hypertension, right wrist
fracture, and mental impairment of an adjustment disorder were
non-severe5 because they did not result in more than minimal

work-related physical/exertional limitations. (Id.)

4 As will be discussed infra, because it focuses its analysis upon
whether the ALJ fully and fairly developed the record below
(Plaintiff’s first of five arguments in support of remand), the
Court’s discuss of the ALJ Decision is similarly focused. Thus,
herein, not all of the ALJ Decision is summarized.

5 In making his finding regarding Plaintiff’s mental impairment,
the ALJ considered the broad functional areas of mental functioning
set out in the disability regulations for evaluating mental
disorders, i.e., the “paragraph B” criteria. (R. 21; see also
R. 22-23.) For the first functional area (understanding,
remembering, or applying information), Plaintiff was found to have
At step three, the ALJ concluded Plaintiff did not have
an impairment or combination of impairments that met or medically
equaled the severity of one of the Appendix 1 listed impairments.

(R. 23.) The required level of severity for the impairment of
chronic heart failure is met when the requirements in both Part A
and Part B of Appendix 1 are met, but Plaintiff met only the
requirements of Part A. (R. 23-24.)
At step four, the ALJ determined Plaintiff had the RFC
to “perform light work but with the following non-exertional
limitations: the claimant can occasionally stoop, crouch, crawl,
kneel and climb; frequently balance, and she can perform simple
and complex tasks and no work in extreme heat or around unprotected
heights or machines with moving parts.” (R. 24.) The ALJ
purportedly considered all symptoms (to the extent those symptoms
were reasonably consistent with the objective medical evidence),

medical opinions and prior administrative medical findings. (Id.)

a mild limitation. (R.22.) For the second functional area
(interacting with others), Plaintiff was found to have no
limitation. (Id.) For the third functional area (concentrating,
persisting or maintaining pace), Plaintiff was found to have a
mild limitation. (R. 22-23.) For the fourth functional area
(adapting or managing oneself), Plaintiff was found to have no
limitation. (R. 23). Hence, with Plaintiff’s medically
determinable mental impairment causing no more than mild
limitation in any of the functional areas, the ALJ concluded
Plaintiff’s mental impairment was non-severe. (R. 23.) His
finding of a non-severe mental impairment was based upon the
opinions of Dr. Charles (a consultative psychologist) and Dr.
Gawley (a non-examining consultative psychologist). (R. 27.)
In considering Plaintiff’s symptoms, the ALJ followed a two-step
process: at step one, determining whether there was an underlying
medically determinable physical or mental impairment which could

reasonably be expected to produce Plaintiff’s pain or other
symptoms; and, at step two, evaluating the intensity, persistence,
and limiting effects of Plaintiff’s symptoms to determine the
extent to which they limited her work-related activities. (Id.)
At the Disability Hearing, Plaintiff testified: she left
her employment in December of 2017 due to complications from
multiple sclerosis exacerbations and a heart attack; her multiple
sclerosis exacerbations ranged from one day to four-to-four week
periods; and, she had other health complications, e.g., Grave’s
disease, carpal tunnel syndrome, leg pain, blurred vision,
migraine headaches, bowel problems, and short-term memory loss.
(R. 24.)

While the ALJ found Plaintiff’s medically determinable
impairments could reasonably be expected to cause the alleged
symptoms, he also found Plaintiff’s statements concerning the
intensity, persistence and limiting effects of her symptoms were
not entirely consistent with the medical evidence. (R. 25). The
ALJ based his conclusion upon his review of Plaintiff’s medical
records from: Dr. Mendoza;6 Dr. Apatoff; Dr. Brown;7 and, South
Nassau Communities Hospital.8 (Id.) Of relevance: Dr. Apatoff’s
records indicated Plaintiff, who was treating Plaintiff for

multiple sclerosis, had active symptoms, e.g., blurred vision,
fatigue, leg weakness and numbness, bladder control difficulties,
and cognitive complaints. (Id.)
Further, the ALJ found the opinion of Dr. Vante “somewhat
persuasive” because it was consistent with opinion of Dr. Li, as
well as the objective medical findings in the record. (R. 26.)
Dr. Vante’s opinion was based upon a consultative internal medical
examination that led to impressions of: multiple sclerosis;
coronary artery disease; status post-implantable cardioverter
defibrillator; hypertension; hyperlipemia; depression; and, a
history of left forearm injury. (Id.) Dr. Vante found Plaintiff’s
physical examination unremarkable and that she had no limitations.

(Id.) Non-examining medical consultant Dr. Li assessed Plaintiff
could perform medium work with no postural, manipulative, visual,
communicative or environmental limitations. (Id.) The ALJ found

6 Dr. Mendoza’s records indicated Plaintiff denied chest pain,
dizziness, shortness of breath, palpitations and fatigue during a
chest examination. (R. 25.)

7 Dr. Brown’s records indicated Plaintiff was doing well post-
fracture, was not on pain medication, and had no work status
restrictions. (R. 25.)

8 Records from South Nassau Communities indicated Plaintiff
presented with dizziness which resolved with medication. (R. 25.).
Dr. Li’s opinion “persuasive” because it was consistent with Dr.
Vante’s opinion and “the objective medical findings of record.”
(Id.)

Conversely, the ALJ found Dr. Apatoff’s opinion
unpersuasive because: (1) it was inconsistent with the opinions of
Dr. Vante and Dr. Li; and (2) the extreme limitations described by
Dr. Apatoff in his 2019 Assessment were purportedly not supported
or consistent with the physical examination findings reported by
him during Plaintiff’s prior, April 2018 visit. (Id.) In his 2019
Assessment, Dr. Apatoff opined Plaintiff was able to sit, stand
and walk a total of one hour each in an eight-hour workday, in
addition to having extreme limitations in movement. The ALJ found
“[t]hat opinion is not persuasive as the extreme limitations
described by the doctor are not supported or consistent with the
physical examination findings reported by him on an examination on

April 30, 2018 and only complaints of extreme fatigue, balance
problems, vision issues, bladder and bowel difficulties and
unsteady gait--without any physical examination findings to
support them--were reported by Dr. Apatoff in his [2019
A]ssessment.” (R. 26.) The ALJ also observed Dr. Apatoff’s
dissatisfaction with the assessment chart as a means of reporting
on Plaintiff’s condition given the unpredictability of multiple
sclerosis. (Id.) Finally, the ALJ noted “there are no records of
any treatment or examination findings by Dr. Apatoff between his
[2018 Statement] and his [2019 A]ssessment.” (R. 27.)
The ALJ also found Dr. Mendoza’s opinion to be

unpersuasive, but because of conflicts within his opinions. (R.
27). During one examination, Dr. Mendoza stated Plaintiff could
not perform work-related activities; at another examination, the
Doctor was unable to provide an opinion regarding the Plaintiff’s
ability to perform work-related activities. (Id.) Further, Dr.
Mendoza opined Plaintiff could stand or walk only two hours in a
workday, which was contradicted by Drs. Vante and Li. (Id.) In
sum: The ALJ’s determination of the Plaintiff’s RFC for light
work was supported by the opinion of Drs. Vante and Li. (R. 27.)
At step five, the ALJ concluded the Plaintiff was capable
of performing past relevant work as a hospital insurance
representative and as a controller. (R. 28). He opined that such

work did not require the performance of work relative activities
precluded by Plaintiff’s RFC. (Id.) Accordingly, the ALJ
determined the Plaintiff was not disabled. (Id.)
III. Analysis
A. The Parties’ Positions
Plaintiff advances several arguments: (1) the ALJ failed
to fully and fairly develop the record (Pl. Br. 15); (2) the
Appeals Council failed to find reasonable probability that Dr.
Apatoff’s records would change the outcome of the ALJ Decision;
(3) the ALJ failed to properly consider Plaintiff’s optic
neuropathy; (4) the ALJ failed to properly evaluate Plaintiff’s
mental impairment; and, (5) the ALJ Decision is not supported by

substantial evidence and is based upon erroneous legal standards.
(See generally Pl. Support Memo.) Unsurprisingly, the
Commissioner contends otherwise. (See generally Comm’r Support
Memo.) The Court focuses it analysis primarily upon Plaintiff’s
first argument in making its ruling.
B. Relevant Law
It is well-established:
Social Security proceedings are
non-adversarial and the ALJ is obliged “to
investigate the facts and develop the
arguments both for and against granting
benefits.” Sims v. Apfel, 530 U.S. 103, 111,
120 S. Ct. 2080, 147 L. Ed. 2d 80
(2000) (citation omitted). This obligation
applies even if the claimant is represented by
counsel. See, e.g., Rosa v. Callahan, 168
F.3d 72, 79 (2d Cir. 1999) (citing Perez v.
Chater, 77 F.3d 41, 47 (2d Cir. 1996)). The
ALJ’s duty to develop the record has been
described as a “bedrock principle of Social
Security law.” Batista v. Barnhart, 326 F.
Supp. 2d 345, 353 (E.D.N.Y. 2004)
(citing Brown v. Apfel, 174 F.3d 59 (2d Cir.
1999)).

Michelle C. v. Comm’r of Soc. Sec., No. 23-CV-7144, 2024 WL
1706000, at *5 (S.D.N.Y. Apr. 3, 2024), report and recommendation
adopted, 2024 WL 1702127 (S.D.N.Y. Apr. 18, 2024).
“Whether the ALJ has satisfied this duty to develop the
record is a threshold question. Before determining whether the
Commissioner’s final decision is supported by substantial evidence
. . . the court must first be satisfied that the ALJ . . .
completely developed the administrative record.” Campbell v.

Comm’r of Soc. Sec., No. 19-CV-4516, 2020 WL 4581776, at *14
(S.D.N.Y. Aug. 10, 2020); see also Telesco v. Comm’r of Soc. Sec.,
577 F. Supp. 3d 336, 353 (S.D.N.Y. 2021) (finding, even though
claimant did not challenge sufficiency of the record, ALJ erred by
failing to adequately develop the record); Berte v. Comm’r of Soc.
Sec., No. 20-CV-2889, 2023 WL 2760515, *3 (E.D.N.Y. Apr. 3, 2023)
(remanding case where ALJ based his non-disability determination
on deficiencies in claimant’s medical records because ALJ failed
to develop said record) (collecting cases); Sanchez v. Saul,
No. 18-CV-12102, 2020 WL 2951884, at *23 (S.D.N.Y. Jan. 13,
2020) (“As a threshold matter, and regardless of the fact that
Plaintiff did not raise an express challenge to the adequacy of

the Record, this Court must independently consider the question of
whether the ALJ failed to satisfy his duty to develop the
Record.”), report and recommendation adopted, 2020 WL 1330215
(S.D.N.Y. Mar. 23, 2020). “Failing to adequately develop the
record is an independent ground for vacating the ALJ’s decision
and remanding for further findings.” Diano v. Comm’r of Soc. Sec.,
No. 19-CV-2265, 2020 WL 13555076, at *16 (citing Rosa v. Callahan,
168 F.3d 72, 83 (2d Cir. 1999) (finding remand “particularly
appropriate” where ALJ failed to obtain adequate information from
treating physicians and potentially relevant information from
other doctors)) (collecting cases).
Additionally,

[f]or claims filed on or after March 27, 2017,
[like here,] the ALJ “will not defer or give
any specific evidentiary weight, including
controlling weight, to any medical opinion(s)
or prior administrative medical finding(s),
including those from your medical sources.”
20 C.F.R. §§ 404.1520c(a), 416.920c(a).
Instead, the ALJ will evaluate the
persuasiveness of medical opinions and prior
administrative medical findings using the
following factors: (1) supportability, (2)
consistency, (3) relationship with the
claimant, (4) specialization, and (5) other
factors that tend to support or contradict a
medical opinion or prior administrative
medical finding. See id. §§ 404.1520c(c),
416.920c(c). Of those, the “factors of
supportability . . . and consistency . . . are
the most important factors.” Id.
§§ 404.1520c(b)(2), 416.920c(b)(2); see also
Loucks v. Kijakazi, No. 21-1749, 2022 WL
2189293, at *1 (2d Cir. June 17, 2022).
An ALJ is specifically required to
“explain how [he or she] considered the
supportability and consistency factors” for a
medical opinion. 20 C.F.R. §§ 404.1520c
(b)(2), 416.920c(b)(2). With respect to
supportability, “[t]he more relevant the
objective medical evidence and supporting
explanations presented by a medical source are
to support his or her medical opinion(s) or
prior administrative medical finding(s), the
more persuasive the medical opinions or prior
administrative medical finding(s) will be.”
Id. §§ 404.1520c(c)(1), 416.920c(c)(1). With
respect to consistency, “[t]he more consistent
a medical opinion(s) or prior administrative
medical finding(s) is with the evidence from
other medical and nonmedical sources in the
claim, the more persuasive the medical
opinion(s) or prior administrative medical
finding(s) will be.” Id. §§ 404.1520c(c)(2),
416.920c(c)(2).

Lena Nicole H. v. Comm’r of Soc. Sec., No. 23-CV-0826, 2024 WL
4133819, at *5 (N.D.N.Y. July 30, 2024); see also, e.g., Michelle
C. v. Comm’r of Soc. Sec., 2024 WL 1706000, at *5. The most
relevant factors in determining the persuasiveness of medical
findings are the supportability and consistency factors. See
Acheampong v. Comm’r of Soc. Sec., 564 F. Supp. 3d 261, 266
(E.D.N.Y. 2021); see also Navedo v. Kajakazi, 616 F. Supp. 3d 332,
343 (N.D.N.Y. 2022) (“Under the new regulations, the ALJ must
‘explain how he considered’ both the supportability and
consistency factors, as they are ‘the most important factors.’”
(quoting 20 C.F.R. §§ 404.1520c(b)(2), 416.1520c(b)(2) (emphasis
added); further citation omitted); Keli Ann D. v. Comm’r of Soc.
Sec., No. 23-CV-0765, 2024 WL 3493274, at *5 (N.D.N.Y. July 22,
2024) (“The revised regulations for evaluating opinion evidence
place substantial emphasis on both supportability and consistency
and require the ALJ to explain the analysis of each of those
factors.” (emphasis added)). The failure to properly consider and
apply the supportability and consistency factors are grounds for
remand. See Schonfeld v. Comm’r of Soc. Sec., No. 21-CV-6053,

2023 WL 2625833, at *13 (S.D.N.Y Mar. 24, 2023); Navedo, 616 F.
Supp. 3d at 344 (same; collecting cases).
While the treating physician rule is no longer in effect,
courts in this district have held the factors under the new
regulations “are very similar to the analysis under the old

treating physician rule.” Velasquez v. Kijakazi, No. 19-CV-9303,
2021 WL 4392986, at *20 (S.D.N.Y. Sept. 24, 2021) (collecting
cases); Navedo, 616 F. Supp. 3d at 344 (same; quoting Velasquez);
Cuevas v. Comm’r of Soc. Sec., No. 20-CV-0502, 2021 WL 363682, at
*9 (S.D.N.Y. Jan. 29, 2021) (“[T]he essence of the rule remains
the same, and the factors to be considered in weighing the various
medical opinions in a given claimant’s medical history are
substantially similar.”). For example, when an ALJ considers the
medical source’s relationship with the claimant, the ALJ must
consider: the length of the treating relationship; the frequency
of examinations; the purpose of the treatment relationship; the
extent of the treatment relationship; and the examining

relationship. See 20 C.F.R. § 1520c(c)(3)(i)-(v).
C. Issues with the Record Below Warranting Remand
As an initial matter, it is important to properly frame
Plaintiff’s claim: “Ms. Kelly testified that she stopped working
due to an exacerbation of her multiple sclerosis ([R]. 81). She
did not testify that she stopped working due to cardiac issues,
wrist issues, or dizziness ([R]. 91).” (Reply at 5.) This fact
is key to the Court’s analysis and review of the ALJ’s
consideration of the opinion of Dr. Apatoff, Plaintiff’s treating
neurologist.
In asserting the ALJ failed to fully develop the record

(see Pl. Support Memo at 15), Plaintiff highlights the ALJ’s
determination that the opinion of Dr. Apatoff was unpersuasive,
with the ALJ explaining, inter alia: “[T]here are no records of
any treatment or examination findings by Dr. Apatoff between his
[2018 Statement] and his [2019 A]ssessment.” (R. 27 (citing Exs.
16F & 15F, respectively9).) Notwithstanding the ALJ underscoring
this perceived problem (see, e.g., R. 26), Plaintiff contends the
ALJ made no attempt to develop the record to address the apparent
gap in the medical record. (See Pl. Support Memo at 15 (“It was
entirely inappropriate for the ALJ to decide [Plaintiff]’s case
for disability benefits caused by her multiple sclerosis without
attempting to obtain and review records from [her] treating

neurologist.”).) Rather, the ALJ evaluated Plaintiff’s claim
based upon “a one-page narrative and a three-page medical source
statement from Dr. Apatoff regarding her multiple sclerosis”,
which “two reports certainly cannot be considered ‘substantial’.”
(Reply at 6 (citing R. 425-28).) Moreover, Plaintiff underscores
the ALJ did so “without attempting to obtain any treatment notes,

9 Exhibit No. 16F, the 2018 Statement, is found at R. 428 in the
Administrative Transcript; Exhibit 15F, the 2019 Assessment, is
found at R. 42-27 in the Administrative Transcript.
MRIs, or other objective tests from” Dr. Apatoff, “the provider
treating [Plaintiff’s] main disabling condition, even though the
ALJ knew these records were missing.” (Id.) Plaintiff’s position

is persuasive.
While it is true a claimant must “make every effort to
ensure that the [ALJ] receives all of the evidence,” 20 C.F.R.
§§404.935(a), 416.1435(a), it is equally true that where, as here,
there is an obvious gap in the medical evidence, the ALJ is
obligated to take steps to fill said gap. See Rosa, 168 F.3d at
79 (“[A]n ALJ cannot reject a treating physician’s diagnosis
without first attempting to fill any clear gaps in the
administrative record.” (citations omitted)).
The ALJ’s unchallenging reliance upon Plaintiff’s
counsel’s representation at the Disability Hearing regarding the
production of medical records (see R. 80), upon which the

Commissioner relies (see Comm’r Support Memo at 14), is unavailing
in this instance. See, e.g., Rosa, 168 F.3d at 79-80 (holding,
where there were numerous gaps in the administrative record “that
should have prompted the ALJ to pursue additional information
regarding [claimant’s] medical history”, ALJ “should have taken
steps” to have medical source supplement its findings). The ALJ’s
own comparison of Dr. Apatoff’s 2018 Statement to his 2019
Assessment showcased the obvious gaps in the medical records. (See
R. 26-27; see also supra at 24-25.) Moreover, by its very content,
at a minimum, the 2018 Statement should have put the ALJ on notice
Dr. Apatoff was Plaintiff’s neurologist, who had been treating
Plaintiff for multiple sclerosis, pursuant to a doctor-patient

relationship, for a period of time (i.e., not on a one-time
consultative basis). (R. 428.) Indeed, in said Statement, Dr.
Apatoff stated Plaintiff: was under his care “for multiple
sclerosis, a neurological disorder with progressive disability”;
had “her latest assessment [] today[, i.e., April 30, 2018,] in
the office”; “has active symptoms”; and, has “complicating medical
comorbidities”. (Id. (emphasis added).) The 2018 Statement
clearly signaled Dr. Apatoff had additional medical records that
would be relevant to his medical opinion that Plaintiff was “unable
to work in any capacity” since her Onset Date. (Id.) Moreover,
given, in his 2019 Assessment: (1) Dr. Apatoff reported Plaintiff’s
plan of treatment included quarterly follow-up appointments, with

intervening telephone conferences if necessary; and, (2) said
Assessment was made approximately one-and-a-half years after the
2018 Statement, simple math indicated four-to-six visits would
likely have occurred and, presumably, generated medical records
for consideration. Yet, the ALJ made no such inquiry as to the
existence or availability of such records; instead, he assumed
there were “no records of any treatment or examination findings”
between the 2018 Statement and the 2019 Assessment. (R. 27.)
“[T]he Court finds that the absence of these records created
‘obvious gaps’ in the administrative record, and the ALJ failed to
fulfill his affirmative duty to close these gaps. ‘[W]here there
are gaps in the administrative record, remand to the Commissioner

for further development of the evidence is in order.’” Martinez
v. Saul, No. 3:19-CV-1017, 2020 WL 6440950, at *4 (D. Conn. Nov.
3, 2020) (citing Rosa, 168 F.3d at 83; further citation omitted).
Relatedly, the Court finds persuasive Plaintiff’s
argument that, since “Dr. Li only reviewed cardiology and
orthopedic records before giving an opinion”, and “did not review
Dr. Apatoff’s medical source statement or narrative”, “ Dr. Li’s
report is also insufficient.” (Reply at 6 (citing R. 114-117).)
The Court concurs. See, e.g., Martinez, 2020 WL 6440950, at *8.
Moreover, in addition to being based upon an incomplete medical
record, because Dr. Li’s report was from early July 2018, it is
also stale. “[M]edical source opinions that are conclusory, stale,

and based on an incomplete medical record may not be substantial
evidence to support an ALJ finding.” Id. (quoting Camille v.
Colvin, 104 F. Supp. 3d 329, 343 (W.D.N.Y. 2015) (citation and
internal quotation marks omitted), aff’d, 652 F. App’x 25 (2d Cir.
2016) (summary order); further citation omitted).
Similarly, Plaintiff contends Dr. Vante’s report, based
upon a one-time examination in mid-June 2018, “is entirely
inadequate.” (Reply at 6.) Again, the Court agrees. As Plaintiff
asserts, “Dr. Vante wrote in her report that [Plaintiff] had ‘no
complications from her multiple sclerosis’ and opined that she had
no physical limitations”, which contradicts Dr. Apatoff’s 2018
Statement and 2019 Assessment. (Id. (citing R. 401, 404).) Like

the Li report, compared to the 2019 Assessment, Dr. Vante’s 2018
report is stale. Moreover, at most, it provides no more than a
one-time snapshot of Plaintiff’s health; it failed to provide a
longitudinal picture of Plaintiff’s health and limitations. For
this reason the Circuit Court has long cautioned: “ALJs should
not rely heavily on the findings of consultative physicians after
a single examination.” Selian v. Astrue, 708 F.3d 409, 419 (2d
Cir. 2013); see also Cruz v. Sullivan, 912 F.2d 8, 18 (2d Cir.
1990) (“[C]onsultative exams are often brief, are generally
performed without benefit or review of claimant’s medical history
and, at best, only give a glimpse of the claimant on a single day.
Often, consultative reports ignore or give only passing

consideration to subjective symptoms without stated reasons.”);
Fintz v. Kijakazi, No. 22-CV-0337, 2023 WL 2974132, at *4-5
(E.D.N.Y. Apr. 15, 2023) (finding deficient ALJ’s reliance on
single report of consulting physician who examined claimant once,
especially since courts frequently caution ALJs against such heavy
reliance of same). In any event, upon the record presented, it is
wholly unclear why the ALJ found Dr. Vante’s opinion somewhat
persuasive when compared to Dr. Li’s non-examination-based report
issued two weeks after Dr. Vante’s report. Rather, the ALJ’s
reliance on Li’s report to find Vante’s report “somewhat
persuasive” is somewhat circular in reasoning.
Finally, the Court observes, as to the ALJ’s apparent

discounting of Dr. Apatoff’s 2019 Assessment because the Doctor
expressed frustration with its means of adequately reporting
Plaintiff’s limitation given the unpredictable nature of multiple
sclerosis, e.g., relapses and remission: “Several district courts
in this Circuit have remarked that a treating physician’s failure
to include a function-by-function analysis in reaching a medical
opinion is ‘not a good reason for discounting’ that opinion.”
Patrick B. v. Comm’r of Soc. Sec., No. 3:19-CV-1697, 2021 WL
1100177, at *16 (D. Conn. Mar. 23, 2021) (citing Parker v. Comm’r
of Soc. Sec. Admin., No. 18-CV-3814, 2019 WL 4386050, at *8
(S.D.N.Y. Sept. 13, 2019); Moreau v. Berryhill, No. 3:17-CV-0396,
2018 WL 1316197, at *11–13 (D. Conn. Mar. 14, 2018); Mondschein v.

Saul, No. 3:19-CV-1019, 2020 WL 4364058, at *8 (D. Conn. July 30,
2020)). “Instead, an ALJ might ask that treating physician to
supplement the record with a more specific opinion.” Id.; see
also generally Daniela B. v. Kijakazi, 675 F. Supp. 3d 305, 316
(E.D.N.Y. May 30, 2023) (explaining ALJ has an “affirmative duty
to recontact a medical expert if an ALJ makes an initial
determination that a medical expert’s opinions are vague or appear
to be inconsistent with their examination notes”).
***
“Finding remand necessary for the reasons explained
above, the Court need not and does not reach Plaintiff’s remaining
argument[s] . . . .” Rowe v. Berryhill, No. 17-CV-0208, 2018 WL

4233702, at *5 (W.D.N.Y. Sept. 6, 2018); see also Keli Ann D. v.
Comm’r of Soc. Sec., No. 23-CV-0765, 2024 WL 3493274, at *7
(N.D.N.Y. July 22, 2024) (same; quoting Rowe); Poceous v. Comm’r
of Soc. Sec., No. 20-CV-4870, 2024 WL 3029197, at *15 n.13
(E.D.N.Y. June 17, 2024) (declining to consider plaintiff’s
further arguments in support of remand upon finding procedural
error by ALJ warranting remand). Those arguments include
Plaintiff’s claims the ALJ: (1) did not properly evaluate her optic
neuropathy; (2) did not properly evaluate her mental impairments;
and (3) failed to consider her mental impairments in his RFC
determination. For clarity: Upon remand, Plaintiff may advance
these arguments and present evidence supporting her claims. See,

e.g., Evelyn C.R. v. Kajakazi, No. 3:22-CV-1288, 2023 WL 9022641,
at * 9 (D. Conn. Dec. 31, 2023) (remanding entire case to ALJ for
new hearing where district court sustained one of claimant’s
claimed errors, but did not consider other claimed errors,
instructing ALJ to conduct “a new evaluation of the evidence, which
may alter the current administrative decision” (internal quotation
marks and citations omitted)) (collecting cases).
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s
Motion (ECF No. 11) is GRANTED, and the Commissioner’s Cross-Motion

(ECF No. 13) is DENIED. This matter is REMANDED for proceedings
consistent with this Memorandum and Order.
IT IS FURTHER ORDERED that the Clerk of the Court enter
judgment accordingly and, thereafter, mark this case CLOSED.
SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.

Dated: December 16, 2024
Central Islip, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10761275. Public record. Not legal advice.