The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
MARGARET MARY RUDDY,
Plaintiff, MEMORANDUM & ORDER
21-CV-1504 (JS)
-against-
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
--------------------------------X
APPEARANCES
For Plaintiff: Howard D. Olinsky, Esq.
Olinsky Law Group
250 South Clinton Street, Suite 210
Syracuse, New York 13202
For Defendant: Scott C. Ackerman, Esq., and
Sergei Aden, Esq.
Special Assistant U.S. Attorneys
Office of General Counsel
6401 Security Boulevard
Baltimore, Maryland 21235
SEYBERT, District Judge:
Plaintiff Margaret Mary Ruddy (“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 Insurance Benefits by
the Commissioner of Social Security (the “Commissioner”1). (See
1 Herein, the Court may refer to the Social Security Administration
as the “Agency”.
Compl., ECF No. 1, ¶ 1.) Pending before the Court are Plaintiff’s
Motion for Judgment on the Pleadings (the “Motion”), and the
Commissioner’s Cross-Motion for Judgment on the Pleadings (the
“Cross-Motion”). (See Motion, ECF No. 11-1; see also Support Memo,
ECF No. 11; Cross-Motion, ECF No. 15; Cross-Support Memo, ECF No.
15-1; Reply, ECF No. 16.) For the following reasons, Plaintiff’s
Motion is GRANTED, and the Commissioner’s Cross-Motion is DENIED.
BACKGROUND2
I. Evidence Presented to the ALJ
The Court first summarizes Plaintiff’s employment
history, relevant medical history, and her testimonial evidence at
her disability hearing before the Commissioner’s administrative
law judge (“ALJ”). It then turns to the testimony provided by the
vocational expert (“VE”) at the disability hearing.
Born in 1962, Plaintiff is a high school graduate who
completed less than one year of college. She had been a medical
biller. Plaintiff has Type II diabetes, high blood pressure, and
plantar fasciitis in her left foot; she is obese.
On June 26, 2018, Plaintiff was involved in a motor
vehicle accident (hereafter, the “Accident”); as a result, she
2 The background is derived from the Administrative Transcript
filed by the Commissioner on October 7, 2021. (See ECF No. 10.)
For purposes of this Memorandum & Order, familiarity with the
administrative record is presumed. Hereafter, the Administrative
Transcript will be denoted by the Court as “R”.
sustained a neck injury. (R. 406-446.) Plaintiff was diagnosed
with cervicalgia and treated for chest and lower abdominal pain.
(R. 406.) Since that time (hereafter, the “Onset Date”), Plaintiff
has experienced neck pain and suffers from radiculopathy. (See,
e.g., R. 22; see also, e.g., R. 850.)
Following the Accident, Plaintiff sought treatment with
Dr. Joseph Gregorace; in his initial July 2018 evaluation of
Plaintiff, De. Gregorace noted Plaintiff exhibited tenderness and
spasms in her cervical spine, as well as a decreased range of
motion. (R. 344-345.) He recommended physical therapy (“PT”)
and ordered an MRI of Plaintiff’s cervical spine. (Id.)
Plaintiff’s July 2018 MRI revealed multiple herniated discs, as
well as a bulging disc. (R. 529, 598.)
Plaintiff proceeded to engage in regular PT sessions
multiple times per week from July to November 2018. Nonetheless,
she continued to experience neck pain. (See, e.g., R. 338, 342,
533.) Therefore, Plaintiff was referred to pain management
specialist Dr. Nizarali Visram for a consultation; Dr. Visram
examined Plaintiff on October 1, 2018. (R. 338.) Despite PT,
because Plaintiff’s neck pain persisted, Dr. Visram recommended
cervical epidural steroid injections. (R. 338-339.) However,
“since the patient is diabetic and has some cardiac issues and is
being followed by a cardiologist,” Dr. Visram also recommended
Plaintiff secure clearance from her doctors before having said
injections. (See id. at 339.)
In early January 2019, six-and-a-half months after her
Onset Date, Plaintiff had a follow-up visit with Dr. Gregorace.
(R. 521-522.) At that time, Plaintiff continued to complain of
neck pain, as well as pain in her left arm. (Id. at 521.) Dr.
Gregorace reported Plaintiff was “in the process of obtaining
medical clearance by her internist[,] as she has a history of
diabetes mellitus, for undergoing epidural cervical spine steroid
injections.” (Id.) Plaintiff also had a positive Spurling’s test
on the left side. (Id.) The Doctor recommended Plaintiff continue
taking Neurontim.3 (Id. at 522.) He also recommended Plaintiff
“refrain from obtaining gainful employment at this time.” (Id.)
On January 15, 2029, Plaintiff visited podiatric
physician Marzana Mleczko, D.P.M., complaining of pain in her left
heel, which Plaintiff reported suffering for approximately a year
with a gradual onset.4 (R. 708-709.) “Pain is worse with
ambulation, upon arising in the morning, after standing from a
3 “Neurontin is an anti-epileptic drug, also called an
anticonvulsant. It affects chemicals and nerves in the body that
are involved in the cause of seizures and some types of pain.”
Drugs.com, Neurontin, available at
https://www.drugs.com/neurontin.html (last visited Apr. 24, 2025).
4 In fact, prior to her Accident, Plaintiff had a history of
chronic left foot pain caused by plantar fasciitis. (See R.
297-306.)
seated position, . . . , with daily activity and increased activity
towards the end of the day.” (R. 709.) At that time, among other
things, Plaintiff denied any back pain or joint disability. (Id.)
Yet, on January 17, 2019, Plaintiff visited Dr.
Alexandre B. DeMoura of New York Spine Institute complaining of
neck and lower back pain. (R. 717-718.) Among other things,
Plaintiff reported: prior to the Accident, she did not have neck
and back pain; she engaged in PT; “she could not proceed with
cervical epidural due to her diabetes”; and, she was experiencing
“numbness and tingling in to her left arm and left leg.” (Id.)
As to Plaintiff’s neck, the Doctor observed Plaintiff “to be in
excessive discomfort” with Plaintiff’s range of motion being
“painful” and “decreased” and there being “tenderness to
palpation.” (Id. at 718-719.) Similarly, as to Plaintiff’s spine,
the Doctor observed Plaintiff was “in excessive discomfort”; her
“[r]ange of motion was painful” and “decreased”; and, there “was
tenderness to palpation.” (Id. at 719.) Based on his evaluation
of Plaintiff, Dr. DeMoura: concluded Plaintiff’s pain issues were
the result of the Accident; recommended surgery, i.e., a cervical
fusion; and, stated Plaintiff’s prognosis was guarded. (Id. at
720.) The Doctor also discussed alternative forms of treatment
with Plaintiff, including relative rest or modified activity.
(Id.)
On February 25, 2019, Plaintiff attended a consultation
examination with Dr. Dulun Hailoo. (R. 722.) Plaintiff presented
with neck pain that radiated to her left upper extremity; she
reported the related pain level was “7/10”. (Id.) The Doctor
noted Plaintiff managed her neck pain via PT, heating pads,
self-massage, and pain medication. (Id.) In addition to further
recording Plaintiff had Type II diabetes and hypertension, and was
obese, the Doctor also noted Plaintiff complained of pain in her
left foot, which was also at a “7/10” pain level, was constant,
and worsened with weightbearing activities such as prolonged
standing and walking. (Id.) Among other general observations
regarding Plaintiff’s appearance, the Doctor recorded:
“[Plaintiff] had difficulty walking on her heels and toes due to
pain in her lower extremities.” (R. 723.) Similarly, Dr. Hailoo
recorded Plaintiff’s “[l]eft foot was tender to palpation on the
sole of the foot.” (R. 724.) The Doctor’s diagnosis included
finding Plaintiff had “[n]eck pain with radiation to the left upper
extremity” as a result of the Accident and plantar fasciitis in
her left foot. (Id.)
Plaintiff continued seeing Dr. Gregorace. On February
28, 2019, she had a follow-up visit with the Doctor, who reported
Plaintiff presented with “complaints of neck pain with pain in the
left arm.” (R. 726.) Among other things, Plaintiff continued to
test positively on the Spurling test for her left side; her range
of motion of her cervical spine registered below normal. (Id.)
Plaintiff reported to Dr, Gregorace that she was contemplating
cervical spine surgery, but she continued with “rehabilitation
medicine treatments.” (Id.)
At a June 6, 2019 follow-up evaluation with Dr.
Gregorace, Plaintiff complained of neck pain and pain in her left
arm, with the Doctor finding weakness in Plaintiff’s left shoulder
abduction. (R. 805.) Once more, a Spurling test of Plaintiff’s
left side was positive, and her cervical spine passive range of
motion was below normal. (Id.) The Doctor noted: “As she is
diabetic, [Plaintiff] is not a great candidate for epidural
cervical steroid injections.” (Id.) This coincided with
Plaintiff’s reporting she did not want to consider cervical spine
surgery at that time. (Id.) Dr. Gregorace referred Plaintiff “to
a pain management anesthesiologist for evaluation for cervical
spine anesthetic nerve root block injections.” (Id.) The Doctor
also advised Plaintiff: to continue with PT; continue taking pain
medication; and, utilize a home cervical spine traction device to
complement her PT treatments. (R. 806.)
Similarly, at a July 11, 2019 follow-up evaluation with
Dr. Gregorace, Plaintiff continued to complain of neck pain and
pain in her left arm. (R. 802.) She exhibited spasms throughout
her cervical spine and her cervical spine passive range of motion
continued to register below normal; further, Plaintiff
demonstrated diminished motor power at the left shoulder
abduction. (Id.) The Doctor increased Plaintiff’s dosage of
night-time pain medication and recommended an orthopedic spine
consultation. (See id.)
Additionally, on June 11, 2019, Plaintiff had a
consultation with neurological specialist Itzhak C. Haimovic, M.D.
(R. 848-850.) Dr. Haimovic reported Plaintiff was in constant
pain and had marked limitation of motion of her neck. (R. 848.)
An MRI and EMG “revealed pathological changes consistent with left
cervical radiculopathy.” (Id.) The Doctor also reported Plaintiff
had, inter alia, numbness in feet and hands, neck pain, and arm
pain. (R. 848-849.) As for motor-related evaluation: Among other
observations, Plaintiff had: reduced strength (a “4/5”
measurement) in her left triceps; “[m]arked limitation of motion
of the neck”; and, well-below normal flexion measurements. (R.
849.) The Doctor opined Plaintiff suffered from “Left C7
radiculopathy”. (R. 850.)
II. Procedural History
On December 14, 2018, Plaintiff filed for disability
insurance benefits alleging disability as of June 26, 2018
(hereafter, the “Onset Date”), due to neck pain, radiculopathy,
diabetes, left foot pain, high blood pressure, and swallowing
problems. (R. 38.) After Plaintiff’s claim was initially denied
on March 13, 2019 (R. 37-46), and again upon reconsideration on
June 25, 2019 (R. 48-58), she requested a hearing before an
Administrative Law Judge (“ALJ”), which was conducted on February
11, 2020 (hereafter, the “Disability Hearing”). (R. 18-36.)
Plaintiff was accompanied by a non-attorney representative (R. 16,
28-32, 34-36), and vocational expert (“VE”) David Pritchard
testified at the Disability Hearing (R. 16, 18, 32-35). (-Se-e- -id-.-)
At the Disability Hearing, Plaintiff testified: she has
severe neck pain on the left side of her neck; the pain extends
into her shoulder and down her left arm; the radiating pain causes
her left hand to fall asleep; and, she experiences numbness and
tingling in her left hand. (R. 22.) Plaintiff also stated she
underwent PT for a one-year period, while covered by the insurance
claim for the Accident. (R. 22-23.) She further testified she
was still taking pain medication prescribed for her after the
Accident, but only when she was experiencing severe pain; she
refrained from taking it every night since the medication “knocked
her out”. (R. 24.) And, Plaintiff testified she would take
over-the-counter medication, e.g., Extra Strength Tylenol, to
manage her pain. (Id.) When asked by the ALJ about having
injections for her neck or shoulder, Plaintiff explained: she
“couldn’t do it anymore because [she] ha[s] diabetes”; after an
evaluation with a pain doctor, the doctor wanted her to have
injections; “after discussing it with some family members who read
all the information,” it was her understanding “it could help but
it could also make it worse”; and, she ultimately decided not to
have the injections. (Id.) Similarly, Plaintiff testified that
consulting neurologist Dr. Haimovic recommended Plaintiff not have
surgery based upon her diabetes. (R. 25.)
Additionally, Plaintiff testified her ability to walk
and stand still was inhibited by her plantar fasciitis. (R. 26.)
When asked about sitting, Plaintiff stated she was able to do so
for “[m]aybe like 15 minutes” and indicated the type of chair or
seat was a factor in how long she was able to sit. (Id.)
Relatedly, because her prior job involved sitting at a desk all
day and calling people on the phone “for long periods of time in
the same position,” Plaintiff testified she did not believe she
could do such a job anymore. (R. 28.) And, because she experienced
numbness and tingling in her left hand, with her hand falling
asleep, Plaintiff stated she would not be able to work at a job
requiring both hands, such as using a computer. (R. 29.)
As for daily activities of life, Plaintiff testified
she: could not walk up and down the stairs with laundry; did light
cooking only, e.g., microwaving something, makings a sandwich,
heating up soup on a stovetop; could drive, but was unable to “turn
all the way to the right or the left”; and had difficulty bending
in the shower, making it difficult to cleanse herself. (R. 27.)
She spends most of her days watching television. (R. 28.) As for
Plaintiff’s neck pain affecting her ability to concentrate,
Plaintiff testified her pain prevents her from thinking of anything
else. (R. 30-31.)
The VE also testified at the Disability Hearing. (See
R. 32-35.) He stated that a hypothetical individual of Plaintiff’s
age, education and past work, who is limited to: “only lift and
carry ten pounds occasionally, less than ten pounds frequently”;
“stand and walk for a total of four hours in an eight-hour day”;
“sit for a total of six hours in an eight-hour day”; “occasionally
climb, balance, stoop, kneel, crouch and crawl”, and who can “do
no overhead reaching” would be able to do both of Plaintiff’s past
jobs of being a billing clerk and a collection clerk. (R. 33-34.)
Upon examination of Plaintiff’s Representative, the VE further
testified that if such hypothetical individual was not able to
look down or was able to look down only occasionally, such
limitation would preclude working at Plaintiff’s prior positions.
(R. 34.) The VE also admitted that Plaintiff’s past work requires
the use of both hands consistently. (R. 35.)
III. The ALJ Decision
In a May 26, 2020 decision, the ALJ found Plaintiff was
not disabled (hereafter, the “ALJ Decision”). (R. 63-71; see also
id. at 72-76 (List of Exs.).) More specifically, while the ALJ
found Plaintiff suffered from the severe impairments of cervical
radiculopathy, diabetes mellitus, left plantar fasciitis, and
obesity (R. 65), she also found said impairments or combinations
thereof did not meet or medically equal “the severity of one of
the listed impairments [found] in 20 CFR Part 404, Subpart P,
Appendix 1” (id. (bold emphasis omitted)). Further:
After careful consideration of the entire
record, the [ALJ found Plaintiff] ha[d] the
residual functional capacity to perform
sedentary work as defined in 20 CFR
404.1567(a). She c[ould] lift and/or carry up
to 10 pounds occasionally and less than ten
pounds frequently. She c[ould] stand and/or
walk for 2 hours in an 8-hour day, and sit for
6 hours in an 8-hour day. She c[ould]
occasionally climb, balance, stoop, kneel,
crouch and crawl. She c[ould ]not perform
overhead reaching with the upper extremities.
(R. 66 (bold emphasis omitted).) The ALJ elucidated that, in
making this finding, she:
considered all symptoms and the extent to
which these symptoms can reasonably be
accepted as consistent with the objective
medical evidence and other evidence, based on
the requirements of 20 CFR 404.1529 and SSR
16-3p. [She] also considered the medical
opinion(s) and prior administrative medical
finding(s) in accordance with the requirements
of 20 CFR 404.1520c.
(Id.) The ALJ explained she was required to engage in a two-step
process when considering a claimant’s symptoms: (1) “it must first
be determined whether there is an underlying medically
determinable physical or mental impairment(s)--i.e., an
impairment(s) that can be shown by medically acceptable clinical
or laboratory diagnostic techniques--that could reasonably be
expected to produce the claimant’s pain or other symptoms; and (2)
“[s]econd, once an underlying physical or mental impairment(s)
that could reasonably be expected to produce the claimant’s pain
or other symptoms has been shown, [an ALJ] must evaluate the
intensity, persistence, and limiting effects of the claimant’s
symptoms to determine the extent to which they limit the claimant’s
work-related activities.” (Id.) Further, as to the second prong
of the analysis, “whenever statements about the intensity,
persistence, or functionally limiting effects of pain or other
symptoms are not substantiated by objective medical evidence, [an
ALJ] must consider other evidence in the record to determine if
the claimant’s symptoms limit the ability to do work-related
activities.”
Particular to the Plaintiff, the ALJ found the evidence
established Plaintiff: suffered from chronic left heel pain caused
by plantar fasciitis; was obese; had hypertension, but there was
no evidence of any complications from same; and, had diabetes which
was “uncomplicated”. (R. 67.) As to the Accident and Plaintiff’s
related complaints of chronic pain, the ALJ recognized Plaintiff:
suffered from muscle tenderness, cervical spine spasms, and
decreased spinal range of motion; had herniated discs, as confirmed
by an MRI; and, was diagnosed with cervical radiculopathy, as
confirmed by an EMG.5 (R. 67.) The ALJ further reported the
5 “Electromyography (EMG) measures muscle response or electrical
activity in response to a nerve’s stimulation of the muscle. The
results of Dr. Gregorace’s October 2018 examination, which
indicated Plaintiff suffered left upper extremity weakness on
motion, cervical spine muscle spasms, and reduced ranges of motion.
(Id.) The ALJ also included Dr. Gregorace’s diagnosis that
Plaintiff had left sided cervical radiculopathy and the Doctor’s
prescription of pain medication for Plaintiff’s neuropathic pain.
(Id.) Continuing, the ALJ set forth Plaintiff engaged in PT, but
“remained symptomatic with neck and left arm pain.” (R. 68.) The
ALJ also chronicled Plaintiff’s various other visits with Dr.
Gregorace, as well as other Doctors. For example, the ALJ included
Plaintiff’s January 2019 visit with Dr. Gregorace, where the Doctor
found Plaintiff still experienced neck and left upper extremity
pain; Dr. Gregorace also reported Plaintiff had muscle spasms
throughout her cervical spine; reduced ranges of motion; and
unchanged treatment regime. (Id.) The ALJ also wrote: “More
recent records from Dr. Gregorace document that there has been no
clearance for the cervical epidural steroid injection due to the
diabetes”, and the Doctor “again prescribed Neurontin and physical
therapy.” (Id.)
test is used to help detect neuromuscular abnormalities.” Johns
Hopkins Medicine, Home, Health, Treatments, Tests and Therapies:
Electromyography (EMG), available at
https://www.hopkinsmedicine.org/health/treatment-tests-and-
therapies/electromyography-emg (last visited Apr. 30, 2025).
Furthermore, the ALJ summarized Plaintiff’s February
2019 visit with Dr. Hailoo, a state agency medical consultant, who
found Plaintiff’s cervical spine motion was limited in all
directions. (Id.) Notwithstanding also reporting Plaintiff
demonstrated “5/5” strength in her upper and lower extremities,
intact hand and finger dexterity, a “5/5” bilateral grip strength,
among other findings, Dr. Hailoo also diagnosed Plaintiff with
neck pain with radiation to the left upper extremity as a result
of the Accident; he opined Plaintiff “had moderate limitations for
heavy lifting and carrying, and moderate limitations for prolonged
standing and walking.” (R. 68-69.)
Then, the ALJ recapped Dr. Haimovic’s June 2019
evaluation of Plaintiff regarding her neck and arm pain. (R. 69.)
Among other observations, the ALJ noted Dr. Haimovic’s finding
that Plaintiff’s motor power in her left tricep was “4/5”, although
“5/5” elsewhere. (Id.) She also reiterated the Doctor’s finding
of “marked” limitation of motion in Plaintiff’s neck in all
directions, as well as his impression of “left C7 radiculopathy”.
(Id.) Finally, the ALJ reported “Dr. Haimovic also opined that
the claimant was ‘not employable’ at that time due to chronic neck
pain.” (Id.)
Nonetheless, the ALJ found Plaintiff’s “statements about
the intensity, persistence, and limiting effects of his or her
symptoms. . . [we]re inconsistent with the evidence of record.”
(Id.) She discounted Plaintiff’s claims of pain because, e.g.,
Plaintiff had intact sensation and “motor strength of 5/5”. (Id.)
The ALJ also underscored Plaintiff’s declining to have fusion
surgery, as well as Plaintiff’s being “a candidate for injections”,
but not persuing such treatment. According to the ALJ: “There is
no medical document to confirm her allegations that her other
medication conditions, particularly diabetes, either make surgery
or injection inadvisable.” (Id. (stating further: Plaintiff’s
“treatment has been conservative”; diabetes is controlled with
medication; and “[h]er physicians have not documented that she
must avoid surgery or injections due to diabetes”); see also id.
at R. 70 (dismissing Plaintiff’s diabetes, obesity, and plantar
fasciitis as bases for finding she is disabled).)
As for the medical opinions and prior administrative
medical findings, the ALJ stated she could not “defer or give any
specific evidentiary weight, including controlling weight, to any”
of them. (R. 70.) In conclusory fashion, the ALJ stated she
found: Dr. Hailoo’s opinion that Plaintiff had moderate
limitations for heavy lifting and carrying, and for prolonged
standing and walking “somewhat persuasive”, baldly stating it was
consistent with the record evidence; Dr. Haimovic’s December 2019
opinion that Plaintiff was unemployable because of her neck pain
“not persuasive” and “not consistent with the medical record”;
and, Dr. Gregorace’s January 2019 opinion Plaintiff should not
seek employment was “not consistent with the evidence pertaining
to the claimant’s cervical spine impairment” and, therefore, “not
persuasive.” (Id.) Hence, the ALJ found Plaintiff retained a
residual functional capacity for sedentary work. (Id.) And, based
upon the testimony of the VE regarding a hypothetical individual
similarly situated to Plaintiff, the ALJ found strong support for
her determination that Plaintiff could “return to any past relevant
work both as actually or generally performed.” (R. 71.) Thus,
the ALJ determined Plaintiff was not disabled. (Id.)
On January 25, 2021, the Agency’s Appeals Council denied
Plaintiff’s request for review; therefore, the ALJ Decision became
the final decision of the Commissioner. (R. 1-3.)
IV. The Instant Action
On March 22, 2021, Plaintiff initiated the instant
action. (See Compl.) Thereafter, on December 3, 2021, Plaintiff
moved for judgment on the pleadings, requesting the case “be
remanded for further administrative proceedings, including a de
novo hearing and new decision.” (Support Memo at 16.) Plaintiff
puts forth three arguments in support of her Motion; the ALJ: (1)
failed to properly evaluate the medical opinions, especially that
of Dr. Haimovic (see id. at 8-13); (2) failed to adequately account
for Plaintiff’s limitations regarding manipulation, fingering, and
typing in the RFC posed to the VE (see id. at 13-15); and (3)
misconstrued the record regarding Plaintiff not receiving epidural
steroid injections (see id. at 15-16).
In response, the Commissioner cross-moved for judgment
on the pleadings pursuant to Rule 12(c) asserting: the ALJ Decision
should be affirmed; Plaintiff’s Motion should be denied; and,
thereafter, this action should be dismissed. (See Cross-Support
Memo at 21.) In opposition to Plaintiff’s Motion, the Commissioner
asserts: (1) substantial evidence supports the ALJ’s RFC finding,
which, in this instance, was more restrictive than that asserted
by Dr. Haimovic and, as such, rendering Dr. Haimovic’s opinion
without any practical effect (see id. at 13-14, 16; see also id.
at 19); (2) pursuant to relevant Social Security regulations, the
ALJ need not consider—or discuss—statements that an individual is
unable to work, such as those made by Drs. Haimovic and Gregorace
about Plaintiff, since “statements on issued reserved to the
Commissioner . . . is evidence that is ‘inherently neither valuable
nor persuasive’” (id. at 15 (quoting 20 C.F.R. § 404.1520b(c)));
and, (3) there is substantial evidence supporting the ALJ’s finding
that Plaintiff was not disabled (see id. at 17 (“The ALJ properly
considered the objective medical evidence in finding that
Plaintiff’s subjective complaints were not entirely consistent
with the record.”); see also id. at 18-21 (arguing further evidence
of Plaintiff’s daily activities and conservative treatment
supported ALJ’s finding).
In reply, Plaintiff maintains the Commissioner
mischaracterized the opinions of Drs. Haimovic and Gregorace to
support the Commissioner’s position that the ALJ properly
evaluated those Doctors’ opinions. (See Reply at 1.) Plaintiff
argues, in essence, the Commissioner glossed over “a key aspect of
Dr. Haimovic’s opinion where he indicated Plaintiff would not be
able to concentrate long enough to complete a work task depending
on her pain level” which ability “is essential to being able to
maintain employment and is not consistent with a full range of
sedentary level work, as claimed by [the Commissioner].” (Id.)
According to Plaintiff, the record is replete with her consistently
reporting pain in her neck, left arm, and lower back, and such
evidence of pain “must be thoroughly considered in calculating the
RFC of a claimant.” (Id. at 2.) By failing to consider Dr.
Haimovic’s opinion about Plaintiff’s ability to concentrate, which
was linked to Plaintiff’s complaints of pain, the ALJ erred. (See
id.)
Plaintiff further contends “the ALJ did little to comply
with the regulations” applicable to disability claims filed after
March 27, 2017, when the ALJ “briefly dismissed the [Doctors’]
opinions without providing meaningful articulation for her
reasoning.” (Id. at 3.) She argues: “At their most basic, the
amended regulations require that the ALJ explain [his] findings
regarding the supportability and consistency for each of the
medical opinions, pointing to specific evidence in the record
supporting those findings.” (Id. (quoting Raymond M. v. Comm’r of
Soc. Sec., No. 5:19-CV-1313, 2021 WL 706645, at *8 (N.D.N.Y. Feb.
22, 2021)). Thus, according to Plaintiff, at best, the
Commissioner offers post hoc rationalizations for the ALJ’s
reasoning, which will not do. (See id. at 3.) Hence, Plaintiff
seeks remand for further administrative proceedings. (See id. at
4.)
DISCUSSION
I. Standard of Review
In Brown v. Commissioner of Social Security, 708 F. Supp.
3d 234 (E.D.N.Y. 2023), Honorable Kiyo A. Matsumoto of this
District thoroughly and succinctly articulated the standard the
Commissioner must follow in determining a claim of disability, see
id. at 241-42, as well as the standard a reviewing district court
must utilize when a claimant challenges the Commissioner’s
determination that the claimant is not disabled, see id. at 242-
43. This Court adopts same and incorporates by reference those
standards herein.
Generally speaking, in reviewing a final decision of 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. See
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)).
Additionally, and of relevance here, “the regulations
relating to the evaluation of medical evidence were amended for
disability claims filed after March 27, 2017.” Jacqueline L. v.
Comm’r of Soc. Sec., 515 F. Supp. 3d 2, 7 (W.D.N.Y. 2021) (citing
Revisions to Rules Regarding the Evaluation of Medical Evidence,
2017 WL 168819, 82 Fed. Reg. 5844-01, at *5844 (Jan. 18, 2017)).
Because Plaintiff’s claim was filed on December 14, 2018, “the new
regulations, codified at 20 C.F.R. §§ 404.1520c and 416.920c,
apply.” Id. As District Judge Elizabeth A. Wolford explained in
Jacqueline L.:
Pursuant to the new regulations, the
Commissioner “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 [the claimant’s] medical
sources.” 20 C.F.R. §§ 404.1520c(a),
416.920c(a). Further, when a medical source
provides one or more medical opinions, the
Commissioner will consider those medical
opinions from that medical source together
using the factors listed in paragraphs (c)(1)
through (c)(5) of this section. Id. Those
factors include: (1) supportability; (2)
consistency; (3) relationship with the
claimant, including the length of the
treatment relationship, the frequency of
examinations, purpose and extent of the
treatment relationship, and the examining
relationship; (4) specialization; and (5) any
other factors that “tend to support or
contradict a medical opinion or prior
administrative medical finding.” Id. at §§
404.1520c(c), 416.920c(c).
When evaluating the persuasiveness of a
medical opinion, the most important factors
are supportability and consistency. Id. at §§
404.1520c(a), 416.920c(a). With respect to
“supportability,” the new regulations provide
that “[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. at §§ 404.1520c(c)(1), 416.920c(c)(1).
With respect to “consistency,” the new
regulations prove that “[t]he more consistent
a medical opinion(s) or prior administrative
medical finding(s) is with the evidence from
other medical sources and nonmedical sources
in the claim, the more persuasive the medical
opinion(s) or prior administrative medical
finding(s) will be.” Id. at §§
404.1520c(c)(2), 416.920c(c)(2).
The ALJ must articulate his consideration
of the medical opinion evidence, including how
persuasive he finds the medical opinions in
the case record. Id. at §§ 404.1520c(b),
416.920c(b). “Although the new regulations
eliminate the perceived hierarchy of medical
sources, deference to specific medical
opinions, and assigning ‘weight’ to a medical
opinion, the ALJ must still articulate how [he
or she] considered the medical opinions and
how persuasive [he or she] find[s] all of the
medical opinions.” Andrew G. v. Comm’r of
Soc. Sec., No. 3:19-CV-0942 (ML), 2020 WL
5848776, at *5 (N.D.N.Y. Oct. 1, 2020)
(quotations and citation omitted).
Specifically, the ALJ must explain how he
considered the “supportability” and
“consistency” factors for a medical source’s
opinion. 20 C.F.R. §§ 404.1520c(b)(2),
416.920c(b)(2). The ALJ may—but is not
required to—explain how he considered the
remaining factors. Id.
Id. at 7-8 (emphasis added); see also Regan v. Comm’r of Soc. Sec.,
No. 21-CV-0312, 2024 WL 1259045, at * 8 (E.D.N.Y. Mar. 25, 2024)
(“The ALJ must explain how she considered the supportability and
consistency factors when determining the persuasiveness of a
medical source’s opinion.” (citing Krystle H. v. Comm’r of Soc.
Sec., No. 20-CV-0855, 2022 WL 888225, at *3 (N.D.N.Y. mar. 25,
2022)); Dayle B. v. Saul, No. 3:20-CV-0359, 2021 WL 1660702, at *4
(D. Conn. Apr. 28, 2021) (“Of these factors, supportability and
consistency are the most important, and ALJs must explicitly
articulate how they considered them.” (citing 20 C.F.R. §
416.920c(b)(2))). “If the ALJ fails adequately to explain the
supportability or consistency factors or bases her explanation
upon a misreading of the record, remand is required.” Rivera v.
Comm’r of Soc. Sec., No. 19-CV-4630, 2020 WL 8167136, at *14
(S.D.N.Y. Dec. 30, 2020) (quoted in Regan).
In reviewing the Commissioner’s decision:
“[t]he court shall have power to enter, upon
the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing
the decision of the Commissioner of Social
Security, with or without remanding the cause
for a rehearing.” 42 U.S.C. § 405(g). Remand
is warranted where “‘there are gaps in the
administrative record or the ALJ has applied
an improper legal standard’” and where
“further findings or explanation will clarify
the rationale for the ALJ’s decision.”
Coleson v. Comm’r of Soc. Sec., No.
18-CV-02862, 2020 WL 1989280, at *3 (E.D.N.Y.
Apr. 26, 2020) (quoting Rosa v. Callahan, 168
F.3d 72, 82-83 (2d Cir. 1999)).
Blowe v. Comm’r of Soc. Sec., No. 19-CV-2658, 2020 WL 3129062, at
*4 (E.D.N.Y. June 12, 2020); see also Brown, 708 F. Supp. 3d at
243 (“Remand is particularly appropriate where further findings or
explanation will clarify the rationale for the ALJ’s decision.”
(citing Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)).
II. The Instant Case
Having reviewed the record presented, it is abundantly
unclear to the Court how the ALJ arrived at her determination of
non-disability notwithstanding her claim to have carefully
considered the evidence. (See ALJ Decision, R. 69.) Indeed, as
Plaintiff aptly argues: “[T]there is a difference between
considering evidence and articulating how [the Agency] consider[s]
evidence.” (Reply at 3 (quoting 82 Fed. Reg. 5844-01, at 5858).)
Of significance, in contravention of the applicable new
regulations, the ALJ has failed to explain her findings regarding
supportability and consistency for each of the Doctors’ opinions
highlighted above (see supra at 16-17); indeed, she has not pointed
to specific evidence in the record supporting her findings. But
cf. Jacqueline L., 515 F. Supp. 3d at 11 (affirming the ALJ’s
determination of non-disability where “the ALJ explained his
findings regarding the supportability and consistency for each of
the opinions, pointing to specific evidence in the record
supporting those findings”). Rather, as Plaintiff asserts:
Here, the ALJ did little to comply with the
regulations. Instead of explaining her
findings regarding the supportability and
consistency for each of the medical opinions,
she briefly dismissed the opinions without
providing meaningful articulation of her
reasoning. [R.] 70. “At their most basic,
the amended regulations require that the ALJ
explain [his] findings regarding the
supportability and consistency for each of the
medical opinions, pointing to specific
evidence in the record supporting those
findings.”
(Reply at 3 (quoting Raymond M., 2021 WL 706645, at *8 (finding
ALJ erred in providing no substantive explanation that a state
agency opinion was persuasive) (citations and quotations
omitted)).) The Court agrees. In turn, the Court concurs with
Plaintiff’s contention “the ALJ’s flawed analysis left no avenue
for meaningful review.” (Id.) Indeed, the Court finds the ALJ
Decision is woefully deficient in rationale thereby thwarting its
ability to engage in any meaningful review of said Decision. Thus,
remand is necessary. See Rivera, 2020 WL 8167136, at *14; see
also Brown, 708 F. Supp. 3d at 243.
-*-*-*-
Because it has determined remand is required in this
instance, “the Court need not and does not reach [the parties’]
remaining argument[s] . . . .” Kelly v. Comm’r of Soc. Sec., No.
20-CV-5318, 2024 WL 5120051, at *13 (E.D.N.Y. Dec. 16, 2024)
(quoting Rowe v. Berryhill, No. 17-CV-0208, 2018 WL 4233702, at *5
(W.D.N.Y. Sept. 6, 2018); further citing 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)).
CONCLUSION
Accordingly, IT IS HEREBY ORDERED: (1) Plaintiff’s
Motion (ECF No. 11-1) is GRANTED; and (2) the Commissioner’s Cross-
Motion (ECF No. 15) is DENIED; this matter being REMANDED to the
Commissioner for further administrative proceedings; and
IT IS FURTHER ORDERED, once Judgment has entered, the
Clerk of Court is directed to CLOSE this case.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: May 13, 2025
Central Islip, New York