Persad v. Commissioner of Social Security

UNITED STATES DISTRICT COURT 4:46 pm, Jul 31, 2025

EASTERN DISTRICT OF NEW YORK U.S.DISTRICTCOURT

--------------------------------X EASTERNDISTRICTOFNEWYORK

ROBERT JUDE PERSAD, LONGISLANDOFFICE

Plaintiff, MEMORANDUM & ORDER

20-CV-5462 (JS)

-against-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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

APPEARANCES

For Plaintiff: Charles E. Binder, Esq.

Law Office of Charles E. Binder and

Harry J Binder, LLP

485 Madison Avenue, Suite 501

New York, New York 10022

For Defendant: Sophie Doroba, Esq., and

Daniella M. Calenzo, Esq.

Special Assistant U.S. Attorneys

United States Attorney’s Office

Eastern District of New York

c/o Office of General Counsel SSA

Office of Program Litigation

6401 Security Boulevard

Baltimore, Maryland 21235

SEYBERT, District Judge:

Plaintiff Robert Jude Persad (“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 his

application for Supplemental Social Income (“SSI”) payments by the

Commissioner of Social Security (the “Commissioner”1). (See

Compl., ECF No. 1, ¶¶1-11.) 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. 15; see also Support

Memo, ECF No. 16; Cross-Motion, ECF No. 20; Cross-Support Memo,

ECF No. 20-1; Reply, ECF No. 21.) For the following reasons,

Plaintiff’s Motion is GRANTED, and the Commissioner’s Cross-Motion

is DENIED.

BACKGROUND2

I. Agency Procedural History

On November 10, 2016, Plaintiff filed for SSI benefits

(hereafter, the “Onset Date”). (R. 280-285; see also R. 10.)

After Plaintiff’s claim was initially denied on April 14, 2017 (R.

10), he requested a hearing before an Administrative Law Judge

(“ALJ”), which was conducted on August 7, 2019 (hereafter, the

“Disability Hearing”). (R. 10.) Plaintiff was accompanied by an

attorney representative (R. 9, 70.), and vocational expert (“VE”)

Dian Haller testified at the Disability Hearing (R. 70, 99-105).

1 Herein, the Court may refer to the Social Security Administration

as the “Agency”.

2 The background is derived from the Administrative Transcript

filed by the Commissioner on July 30, 2021. (See ECF No. 11.)

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”.

II. Evidence Presented to the ALJ

A. Overview and General Information

The Court first summarizes Plaintiff’s employment

history, relevant medical history, and his testimonial evidence at

his disability hearing before the ALJ. It then turns to the

testimony provided by the vocational expert (“VE”) at the

disability hearing.

Born in 1976, Plaintiff was educated through the Tenth

Grade of high school. He has no past relevant work history. When

he sought SSI benefits, Plaintiff “alleg[ed] disability due to a

learning disability, agoraphobia, bipolar disorder, and back

pain.” (Cross-Support Memo at 1 (citing R. 275, 280, 298).) The

ALJ found Plaintiff has the following severe impairments: lumbar

degenerative disc disease with spondylosis and compression status

post laminectomy; thoracic degenerative disc disease; right carpal

tunnel syndrome; trigger finger right thumb; left hip degenerative

joint disease; asthma/chronic obstructive pulmonary disease

(“COPD”); obstructive sleep apnea; morbid obesity; bipolar

disorder; post-traumatic stress disorder; and anxiety disorder.

(See R. 12.) Before this Court, Plaintiff focuses upon the

assessments of his chronic lower back pain and his mental

impairments. (See Support Motion at 16-27; see also, e.g., Reply

at 1-5; Cross-Support Memo at 18 (asserting Plaintiff’s argument,

that ALJ failed to properly determine Plaintiff’s RFC, is premised

primarily upon Plaintiff’s “back and mental impairments”).)

Because of that, the Court does likewise and does not discuss

evidence or arguments regarding Plaintiff’s other impairments.

B. Relevant Medical History

1. Plaintiff’s Lower Back

On November 30, 2016, Plaintiff was seen in the Good

Samaritan hospital Emergency Room by Carlos Rios, P.A. (“PA Rios”),

complaining of lower back pain radiating to his left buttock and

thigh. (R 610.) Plaintiff reported his pain was constant and

worsened with movement. (Id.) Upon exam, PA Rios found Plaintiff

had pain with palpation of the left lumbosacral spine, left

buttock, and left thigh; he diagnosed Plaintiff with back pain.

(R. 611.) A muscle relaxant was prescribed. (R. 612-613.)

On December 1, 2016, Plaintiff saw pain medicine

specialist Daniel Kohane, M.D. (“Dr. Kohane”), who evaluated

Plaintiff’s complaints of lower back and left leg pain. (R. 364.)

Plaintiff reported his pain was constant and severe, rating it

10-out-of-10, and was only minimally relieved with medication.

(R. 364-365.) Plaintiff also told the Doctor his lower back pain

radiated to the left leg with associated numbness and tingling.

(R. 364.) On examination, Dr. Kohane found: an antalgic gait;

limited spinal flexion and extension with pain; diffuse pain with

palpation; multiple trigger points; muscle tenderness; painful

facet joints and sacroiliac joints with palpation; positive

Gaenslen’s test; positive Sacroiliac Distraction test; positive

thigh thrust; positive Kemp’s maneuver; and, pain with straight

leg raising test. (R. 365.) As a result, Dr. Kohane diagnosed

Plaintiff with: lumbar radiculitis; lumbago of the lumbosacral

region with sciatica; and myalgia. (R. 364.) Also on December 1,

2016, Plaintiff had an MRI of the lumbar spine; it showed multiple

herniations and spinal stenosis.3 (R. 373-74.)

On December 3, 2016, Plaintiff had a follow-up visit

with Dr. Kohane to discuss the MRI results. (R. 1514.) At that

time, Plaintiff reported continued back and leg pain, which pain

he rated at an 8-out-of-10 level and which worsened with prolonged

sitting and standing. (R. 1515.) No changes were noted on

examination. (Id.) Dr. Kohane recommended a lumbar epidural

steroid injection and prescribed pain medications. (R. 1514.)

On December 17, 2016, Plaintiff saw Neurologist Hugh

Xian, M.D. (“Dr. Xian”), of South Shore Neurologic Associates,

3 In technical language, the radiologist found: straightening of

the normal lumbar lordosis (curve) with mild convexity to the left;

diffuse disc dehydration and narrowing with endplate changes; a

narrow central canal; an L1-2 broad-based disc herniation with

slight inferior migration causing moderate-to-marked central

stenosis and foraminal compromise; an L2-3 bulging disc with right-

sided herniation causing marked central and foraminal stenosis;

L3-4 bulging and broad-based herniation resulting in marked

central and foraminal stenosis; L4-5 facet hypertrophy and bulging

broad-based herniation eccentric towards the left with marked

central and foraminal compromise; and an L5-S1 bulging and broad-

based herniation with moderate-to-marked central stenosis and

marked bilateral foraminal compromise. (R. 373-374.)

P.C. (hereafter, “South Shore Neurologic”). (R. 463.) Once more,

Plaintiff described suffering with constant low back pain, which

had worsened and which radiated to his left lower extremity. (Id.)

He had not improved with medication or physical therapy and

developed new thoracic spine pain. (Id.) Dr. Xian also reported:

“The patient has used a cane for walking.” (R. 463.) On exam,

Dr. Xian found Plaintiff had: tenderness of the thoracic and lumbar

spine; decreased pinprick sensation in the lower extremities; and

a slow gait. (R. 466.) The Doctor diagnosed Plaintiff with: low

back pain; spinal stenosis; radiculopathy; and, thoracic spine

pain. (R. 466.) He recommended Plaintiff engage in pain

management before considering invasive measures, i.e., surgery,

and increased Plaintiff’s the dosage of pain medication, as well

as prescribed additional medications for Plaintiff. (R. 466-67.)

A December 19, 2016 electromyography (“EMG”) performed

on Plaintiff showed evidence of chronic, multilevel, bilateral

lumbosacral radiculopathy from L3 through S1. (R. 513-14.) In

conjunction with the EMG, on December 21, 2016, Plaintiff had a

follow-up appointment with a certified adult nurse practitioner

(“ANP-C”) at South Shore Neurologic. (R. 468, 471.) At that time,

Plaintiff’s symptoms were unchanged, with his lumbar spine pain

described as 7-out-of-10 and his radiating leg pain described as

9-out-of-10. (Id.) Additionally, the ANP-C recorded Plaintiff

“bought a cane in a thrift shop as he had fallen a few times due

to his left leg and knee ‘giving out’. He use[s] the cane now to

assist his ambulation.” (R. 468.) The ANP-C’s physical exam of

Plaintiff revealed: tenderness of the paraspinal muscles; pain in

both buttocks; painful greater trochanters; painful sacroiliac

joints; a positive Patrick’s test bilaterally; and, pain with

straight leg raising bilaterally. (R. 470.) Among other

components, part of Plaintiff’s recommended plan of treatment was

to: have a lumbar steroid epidural injection; continue using a

cane to ambulate; and, to be prescribed new medications. (R. 471

(emphasis added).)

A December 31, 2016 MRI of Plaintiff’s thoracic spine

showed degenerative changes throughout the thoracic spine,

including extensive disc herniations, various bulging discs, and

related deformities. (See, e.g., R. 407-08.) Thereafter, on

January 19, 2017, Plaintiff was evaluated by pain medicine

specialist Khondeker Rahman, M.D., of South Shore Neurologic. (R.

472.) The Doctor administered a lumbar epidural injection in

Plaintiff’s lower back, at L1-2 and L2-3, which was a “very

difficult . . . needle insertion” due to narrowed disc space and

possible calcification. (Id.)

On January 20, 2017, Plaintiff was seen by orthopedic

surgeon Daniel Brandenstein, D.O. (“Dr. Brandenstein”). (R. 401.)

Plaintiff reported symptoms of low back pain in the lumbar region,

which pain he rated at an 8-out-of-10 level (id.); his pain

radiated to both of his lower extremities, with the pain being

greater on Plaintiff’s left side and with Plaintiff suffering

associated numbness and tingling. (Id.) Plaintiff informed Dr.

Brandenstein that his pain worsened with sitting, standing, and

walking. (Id.) Dr. Brandenstein’s exam found Plaintiff displayed:

apprehensive motor strength of the bilateral lower extremities;

pain to palpation of the lumbar spine: and, apprehensive

dorsiflexion secondary to pain (R. 402.) Dr. Brandenstein

diagnosed: lumbar spondylosis; lumbar stenosis with neurogenic

claudication; and, morbid obesity. (Id.) In a subsequent January

24, 2017 “To Whom It May Concern” form, Dr. Brandenstein indicated

Plaintiff: had been seen on January 20, 2017; was diagnosed with

“Lumbar stenosis w/neurogenic claudication”; and, “cannot sit or

stand for prolonged periods of time”. (R. 393.)

On February 3, 2017, Plaintiff had a follow-up visit at

South Shore Neurologic with the ANP-C. (R. 478, 481.) Plaintiff

reported no relief from his epidural steroid injection and that

his medication was minimally effective. (R. 478.) A physical

exam revealed, inter alia: paraspinous tenderness; bilateral

buttock pain; increased pain with lumbar extension; limited lumbar

flexion; bilateral sacroiliac joint pain; and, an antalgic gait.

(R. 480.) The ANP-C further observed Plaintiff: “walks with a

cane”; reported no relief from his January 2017 steroid epidural

injection; and, was provided “with a small supply of narcotic

medication” and other medication for temporary pain control. (R.

480-81.)

On February 10, 2017, Plaintiff had a follow-up visit

with Dr. Brandenstein, during which visit Plaintiff rated his lower

back pain as a 9-out-of-10 and described it as radiating

bilaterally to his buttocks and legs; he also complained of

associated numbness and tingling in his left foot and stated the

left side of his lower extremities experienced the greater pain.

(R. 399.) Plaintiff also reported he was able to ambulate for

only “50-100 feet before the onset of burning pain in his legs.”

(Id.) An exam of Plaintiff showed evidence of: left sciatica and

neurogenic claudication, which was worse on Plaintiff’s left side;

apprehensive motor testing; pain with palpation of the lumbar

spine; and apprehensive dorsiflexion due to pain. (R. 400.) Dr.

Brandenstein discussed surgery as an option, which the Doctor

believed could help alleviate some of Plaintiff’s radiating pain,

but was unlikely to address his back pain. (Id. (emphasis added).)

On February 24, 2017, Plaintiff returned to South Shore

Neurologic and was seen by the ANP-C who, upon examination of

Plaintiff, found he displayed tenderness and pain in the lumbar

region. (R. 482, 484, 485.) In her comments, the ANP-C recorded

Plaintiff had an antalgic gait and ambulated with a cane. (R.

484.) The ANP-C prescribed Plaintiff Nucynta, an opioid pain

medication, which was added to Plaintiff’s medication regimen.

(R. 484-85.)

On March 13, 2017, Dr. Brandenstein performed the

following procedures on Plaintiff: a lumbar laminectomy at L2, L3,

and L4; a partial laminectomy at L1 and L5; and, a repair of

durotomy at L4. (R. 382-384.) In a March 17, 2017 “To Whom It May

Concern” form, the Doctor indicated Plaintiff “may not work at

this time” and further stated Plaintiff would be unable to work

for the next four months, at the end of which time, he would be

reevaluated. (R. 392.)

At his March 24, 2017 post-surgical follow-up with Dr.

Brandenstein, Plaintiff reported his pain had decreased to a

2-out-of-10 level. (R. 394.) The Doctor stated that, at

Plaintiff’s next clinical assessment, he would consider whether to

have Plaintiff engage in physical therapy. (Id.)

At an April 5, 2017 office visit with Dr. Xian and

consistent with Dr. Brandenstein’s expectations, Plaintiff

“reported no improvement of his low back pain, but less pain in

his legs.” (R. 490.) Plaintiff was using a cane to ambulate and

was continuing to use pain medications. (Id.) A physical exam

found neurologic damages, e.g.: decreased pinprick sensation of

the left lower leg; limited motor strength in the same leg due to

pain; a slow gait; and, decreased reflexes of the upper

extremities. (R. 492.)

At an April 18, 2017 five-week-post-operative visit with

Dr. Brandenstein, Plaintiff reported mechanical back pain, which

the Doctor stated was “expected after multilevel lumbar

laminectomy”. (R. 528.) While he noted Plaintiff was doing well

postoperatively, Dr. Brandenstein also noted Plaintiff had “fair

pain control.” (Id.) On April 21, 2017, three days later, no

significant changes were noted, although Dr. Brandenstein recorded

Plaintiff had “adequate pain control” at that time. (R. 530.)

Further, on April 21, 2017, Dr. Brandenstein completed

a six-page “Spinal Impairment Questionnaire” regarding Plaintiff.

(See R. 419-24.) In said Questionnaire, the Doctor reported that,

beginning in January 2017, he treated Plaintiff on a monthly basis

for: status-post lumbar laminectomy at L1 through L5; morbid

obesity; lumbar spondylosis; lumbar stenosis; neurogenic

claudication; thoracic disc herniation; and peripheral neuropathy.

(R. 419.) The Doctor cited to MRIs of the lumbar and thoracic

spine supporting his diagnoses (id.); he also identified clinical

findings that supported his diagnoses, e.g.: limited motion in the

lumbar spine and lower extremity; thoracic and lumbar tenderness;

muscle spasms in the thoracic and lumbar spine; sensory loss in

the lower extremity; reflex changes bilaterally in the

S1/Achilles; muscle weakness/motor loss secondary to

apprehension/pain; trigger points; swelling; positive straight leg

raising bilaterally; and, an antalgic gait. (R. 420.) Based upon

these diagnoses, Dr. Brandenstein opined, in an eight-hour

workday, Plaintiff was able: to sit one hour, and when sitting,

needed to elevate his legs; and to stand and walk less than one

hour. (R. 421-22.) Further, Plaintiff could occasionally lift or

carry up to 20 pounds. (Id.) The Doctor reported Plaintiff could

not: “ambulate effectively” given he was unable to walk a block at

a reasonable pace on rough or uneven surfaces; use standard public

transportation; carry out routine ambulatory activities; or climb

a flight of stairs at a reasonable pace with use of a single-hand

rail. (Id.) At that time, Dr. Brandenstein also recorded

Plaintiff was using a walker to assist with ambulation. (Id.)

The Doctor opined Plaintiff’s pain, fatigue, and other symptoms

would frequently interfere with his attention and concentration,

i.e., from 1/3 to 2/3 of an eight-hour workday, as well as require

Plaintiff to take unscheduled breaks “very often/possibly every

hour” during such a workday. (R. 423 (further indicating

Plaintiff’s symptoms would likely increase if he were placed in a

competitive work environment, since he would suffer more pain in

his back and legs).) Dr. Brandenstein estimated, on average,

Plaintiff would miss work more than three times a month due to his

impairments. (R. 424.) Further, the Doctor opined Plaintiff was

not a malingerer. (R. 423.)

On April 21, 2017, Plaintiff had a follow-up visit at

South Shore Neurologic. (R. 495.) Despite diminished leg pain,

Plaintiff’s back pain remained at a daily 7-out-of-10 level; yet,

during the visit, Plaintiff reported his pain level at a

9-out-of-ten. (R. 495, 497.) The ANP-C reported Plaintiff was

“very distressed with his current painful condition.” (R. 495.)

Moreover, Plaintiff reported his pain was worse with “all types of

movement” and he was still experiencing numbness in his left foot.

(Id.) Plaintiff felt his Oxycodone prescription was “‘barely’

effective”; as a result, his pain medications were increased. (R.

495, 498.) The ANP-C also recorded Plaintiff ambulated with a

cane and commented that he displayed an unsteady gait. (R. 495,

497.) A physical examination of Plaintiff revealed, inter alia,

tenderness of the spine, and bilateral pain in his buttocks,

greater trochanters, and sacroiliac joints. (R. 497.)

At his May 26, 2017 visit with the South Shore Neurologic

ANP-C, Plaintiff reported a recent fall at home after his right

leg “gave out” but otherwise no significant changes in symptoms.

(R. 499.) Plaintiff reported he had intense pain near the lumbar

spine and he was “very distressed with his chronic pain.” (Id.;

see also id. at 502 (noting Plaintiff’s “pain [wa]s still very

high”).) The ANP-C observed Plaintiff was using a cane to ambulate

and had difficultly walking on his heels and toes. (R 499, 501.)

She also noted Plaintiff was considering spinal cord stimulation.

(R. 502.)

On July 25, 2017, Plaintiff had an MRI of the lumbar

spine; in general terms, it showed: some forward vertebra slippage;

evidence of prior surgery; levels of degenerative disc disease;

loss of disc height at all levels; atrophy of the posterior

paraspinal muscles; and, various disc bulges, stenoses, and neural

foraminal narrowings.4 (R. 452-453.)

On August 2, 2017, Plaintiff returned to South Shore

Neurologic, reporting daily severe low back pain. (R. 503.) The

ANP-C reported Plaintiff had been unable to obtain significant

relief with medication or physical therapy and that he appeared to

be in distress. (R. 503, 505.) A physical exam of Plaintiff

showed: he had a severely reduced range of motion in his lumbar

spine; Plaintiff displayed an antalgic gait and was using a cane;

he had difficulty with heel and toe walking; his deep tendon

reflexes were symmetrically decreased; he was afflicted with

bilaterally painful buttocks and greater trochanters; and, he had

4 In more technical terms, the MRI showed: minimal anterolisthesis

of L4 on L5 and minimal retrolisthesis of L5 on S1; evidence of

prior surgery; degenerative endplate changes at L1-2 and L5-S1;

loss of disc height at all levels; atrophy of the posterior

paraspinal muscles; a broad-based disc bulge at L1-2 with facet

hypertrophy and moderate central stenosis with mild bilateral

neural foraminal narrowing; a small disc bulge at L2-3 with

moderate right and mild left neural foraminal narrowing; a small

disc bulge at L3-4 with mild bilateral neural foraminal narrowing;

a disc bulge at L4-5 with facet hypertrophy causing mild central

canal stenosis with severe bilateral neural foraminal narrowing;

and an L5-S1 disc bulge and facet hypertrophy causing severe

bilateral neural foraminal narrowing.

tenderness in his spinous and paraspinous muscles. (R. 505)

Plaintiff’s pain medication dosages were increased, and he was

prescribed additional pain medications. (R. 506 (showing

Plaintiff was prescribed Oxycodone, Gabapentin, and

Chlorzoxazone).) The ANP-C also made a psychiatry referral for

Plaintiff “for cognitive behavior therapy for chronic pain”. (Id.;

see also R. 504 (reporting Plaintiff showed symptoms of anxiety).)

Also on August 2, 2017, Plaintiff had a follow-up visit

with Dr. Brandenstein, during which visit Plaintiff complained of

worsening stiffness and spasms in his low back, which spasms cause

his back to “lock up”. (R. 535.) The Doctor reviewed Plaintiff’s

July 25 MRI findings and ordered physical therapy to “help treat

low back pain issues/myositis issues”. (R. 537, 538.) Given the

combination of Plaintiff’s back pain complaints and his past

medical history, Dr. Brandenstein opined Plaintiff may be

permanently disabled. (R. 538.)

At a September 5, 2017 follow-up visit with Dr.

Brandenstein, the Doctor noted Plaintiff continued to complain of

worsening stiffness and spasms in his lumbar spine. (R. 1384.)

Plaintiff further complained of “right leg discomfort and needing

to drag the leg often particularly when walking up and down the

stairs.” (Id.; see also R. 1386.) In conjunction therewith, the

Doctor observed Plaintiff ambulated “in a non-myelopathic manner”

and with a cane. (R. 1386.) Dr. Brandenstein recommended pain

management with a spinal cord stimulator (Id.)

Thereafter, on October 11, 2017 and to address his

chronic low back pain, Plaintiff was seen by pain medicine

specialist Phillipe Vaillancourt, M.D. (“Dr. Vaillancourt”), of

South Shore Neurologic. (R. 509.) Plaintiff described back pain

that extended down the posterior/lateral right thigh to the knee

with tingling in all the toes on the right; he stated his pain

increased with sitting or standing for long periods. (Id.)

Plaintiff appeared uncomfortable (R. 511.) Upon exam, Dr.

Vaillancourt found Plaintiff had: tenderness in the spinous,

paraspinous, gluteus, and sacroiliac joints; lumbar segmental

restriction; limited flexion and extension of the lumbar spine;

hypesthesia of the right foot; weakness in both lower extremities;

an antalgic gait; and decreased deep tendon reflexes. (Id.) The

Doctor: diagnosed Plaintiff with chronic low back pain; continued

Plaintiff on Oxycodone and Gabapentin; and, referred Plaintiff for

aqua-physical therapy. (Id.)

On October 16, 2017, Plaintiff returned to his prior

treating pain medicine specialist, Dr. Kohane. (R. 1462.) He

described constant low back pain radiating to the right lower

extremity with numbness and tingling. (Id.) Plaintiff reported

his lumbar spine pain level ranged from 7-out-of-10, such as on

October 16, to 10-out-of-10 on “bad” days. (Id.) The Doctor noted

Plaintiff ambulated with an antalgic gait and used a cane. (Id.)

Dr. Kohane’s exam of Plaintiff revealed: painful and limited

flexion and extension of the spine; lumbar paraspinal tenderness

with multiple trigger points; a positive Kemp’s test; painful

palpation of the facet joints; and, grossly limited range of motion

in both knees, as well as tenderness in both knees. (R. 1463.)

The Doctor diagnosed Plaintiff with: lumbar radiculitis; post-

laminectomy syndrome; sacroiliitis; and, knee pain.5 (R. 1463,

1465.)

On November 15, 2017, Plaintiff saw Dr. Kohane to review

the results of an October 27, 2017 MRI. (R. 1467-68.) At that

time, Plaintiff reported a pain level of 8-out-of-10. (R. 1467.)

Upon exam, the Doctor found, inter alia: Plaintiff had an antalgic

gait and used a cane; Plaintiff’s lumbar spine range of motion had

a forward flexion limited to 20 degrees and was painful and had

limited extension that was painful at zero degrees; a bilateral

positive Kemp’s test, but a negative straight leg raise test; and,

bilateral facet joints painful with palpation. (R. 1467.) Dr.

5 Plaintiff had an October 19, 2017, evaluation by Orthopedist

Keith Reinhardt, M.D. (“Dr. Reinhart”), for his knee pain. (R.

555.) Plaintiff reported a four-to-five-year history of knee pain,

which he rated at a constant 8-out-of-10 pain level. (Id.)

Further, Dr. Reinhart noted Plaintiff was “transferring and

ambulating with a cane.” (Id.) Due to Plaintiff’s obesity, the

Doctor’s physical exam was limited; however, he found Plaintiff

exhibited fluctuance over the prepatellar bursa bilaterally. (R.

557.) Dr. Reinhardt diagnosed knee pain and prescribed a

prescription nonsteroidal anti-inflammatory drug. (Id.)

Kohane also found Plaintiff’s knees’ ranges of motion to be grossly

limited and with pain. (R. 1468.) Specifically as to Plaintiff’s

lumbar radiculitis, the Doctor reported:

Low back pain remains constant[,] severe[,]

and radicular. Pain is affecting

[Plaintiff’s] daily life. Despite having

spine surgery[,] he continues to have pain.

Does not want to have further surgery nor

believes it will be beneficial. . . . Minimal

relief with conservative management.

(R. 1468.) Ultimately, Dr. Kohane reported Plaintiff’s lumbar

radiculitis was “[w]orsening”. (Id.) Thus, the Doctor

administered a lumbar epidural steroid injection. (R. 1469.)

On January 9, 2018, Plaintiff had a visit with Dr.

Brandenstein, at which time he described persistent low back pain

that radiated down his right leg with increased pain after physical

activity. (R. 1381.) The Doctor’s examination of Plaintiff

revealed findings of right greater trochanteric bursitis and

tendinopathy. (R. 1383.) And, X-rays taken in the office showed

lumbar spondylosis. (Id.) The Doctor recommended trigger point

injections for pain relief. (Id.)

On February 28, 2018, Plaintiff returned to Dr.

Vaillancourt, reporting chronic low back pain. (R. 878, 879.)

The Doctor noted Plaintiff: did not have any significant

improvement after his surgery; was on escalating doses of opioids

for pain management; and since mid-October 2017, had attended at

least seven sessions of aqua-physical therapy with uncertain

effects. (R. 878.) During the February 28 visit, Plaintiff

reported his pain was “worse with sitting or standing too long or

walking more than [a] short distance.” (Id.) Plaintiff rated his

pain that day at a 6-out-of-10 level and appeared to be in

discomfort. (R. 880.) On exam, Dr. Vaillancourt found, inter

alia: tenderness of the spinous process; lumbar segmental

restriction; limited flexion and extension; hypesthesia of the

right foot; generalized weakness; an antalgic gait and balance;

and, decreased reflexes. (Id.) The Doctor recommended a medial

branch block. (Id.) Plaintiff’s medications included Fentanyl

patches, Oxycodone, and other pain medications. (R. 881.)

2. Plaintiff’s Mental Impairments

Record evidence indicates Plaintiff engaged in come

mental health treatment between 2002 and 2003 with provider

Catholic Charities. (See R. 426-27.) During his incarceration,

from sometime in 2013 until November 9, 2016, Plaintiff was treated

in prison for his mental illness. (See, e.g., R. 427 (noting

Plaintiff “[h]as had past 3 year [history] of Mental Illness and

treated in prison” (emphasis added)).) There are no records for

either of these time periods detailing Plaintiff’s mental health

treatment. However, from the subsequent intake notes from

Parientes of Suffolk (hereafter, “Parientes”), at a minimum, it

can be surmised Plaintiff was being prescribed medications for

mental health issues, which medication ran out, presumably

prompting his visit to Parientes. (See R. 426; see also id. at R.

427 (stating Plaintiff’s last prescription was from November 2,

2016, but he had run out of medication).)

On December 10, 2016, Plaintiff began post-incarceration

mental health treatment at Parientes. (R. 426-27.) On that date,

he participated in an intake evaluation at Parientes during which

visit he described experiencing depression and anxiety

intermingled with “bursts of energy”. (R. 426.) Plaintiff also

reported being unable to finish tasks he began and avoiding crowds.

(Id.) He was diagnosed with unspecified bipolar and related

disorder and agoraphobia. (R. 427.) At his appointment the next

week, on December 17, 2016, Plaintiff was advised to begin weekly

therapy for his conditions. (R. 428.) Thereafter, Plaintiff met

with Nurse Practitioner Eva MacDowall (“NP MacDowall”) several

times.

On December 22, 2016, during NP MacDowall’s psychiatric

evaluation of Plaintiff, Plaintiff informed the NP he: was anxious;

had low energy; suffered nights sweats, which caused him to wake

up multiple times per night; was paranoid others could read his

thoughts; and, was hypervigilant. (R. 430.) NP MacDowall found

Plaintiff: had fair insight and judgment; had a constricted affect;

and, was highly anxious, with an irritable mood. (R. 429.) The

NP diagnosed Plaintiff with generalized anxiety disorder and

chronic PTSD; she prescribed both anti-depressant and anti-anxiety

medications for Plaintiff. (R. 431.)

On January 5, 2017, Plaintiff had a follow-up visit with

NP MacDowall. (R. 437-38.) He reported his depression was

improved, rating it at a 5-out-of-10 level, and his sleep was

normal. (R. 437.) NR MacDowall continued Plaintiff’s medications

at their then-current doses. (R. 438.) She assessed Plaintiff as

much improved from his previous visit. (Id.)

On February 2, 2017, Plaintiff reported: being anxious,

rating it at a “7/10” level; having sleeping difficulties; and,

increased depression, rating it at a “6/10” level, which Plaintiff

attributed to his back problems. (R. 439.) While her mental

assessment of Plaintiff showed predominately “appropriate”,

“good”, and “normal” results, NP MacDowall noted Plaintiff’s mood

was anxious; overall, she recorded Plaintiff’s assessment as

“[m]ildly improved from previous visit”. (R. 439-40.) (Id.) NP

MacDowal maintained Plaintiff’s medications but increased his

dosage of Klonopin “due to anxiety and insomnia”. (R. 440.)

On March 3, 2017, Dr. Sal Sarmiento,6 a psychiatrist with

Parientes, met with Plaintiff. (R. 441.) Among other things, he

recorded Plaintiff’s mood to be “euthymic” or stable, and Plaintiff

reported to be “feeling a lot better with his medications.” (Id.

6 The ALJ misidentified the Doctor as “Dr. Sal Saviento”. (See

ALJ Decision, R. 22.)

(emphasis added).) The Doctor’s notes indicate he changed

Plaintiff’s dosages of Venlafaxine and Buspar, and discussed those

dosage changes with Plaintiff. (R. 442.)

On May 25, 2017, Dr. Sarmiento completed a “Mental

Impairment Questionnaire”7 regarding Plaintiff, whom the Doctor

indicated he saw monthly. (See R. 445-49.) He identified

Plaintiff’s diagnoses as generalized anxiety disorder and PTSD,

which were exacerbated by Plaintiff’s back pain. (R. 445, 447).

Dr. Sarmiento opined Plaintiff had moderate-to-marked limitations

carrying out simple instructions, sustaining an ordinary routine,

asking simple questions or requesting assistance, and adhering to

basic standards of neatness. (R. 448). The Doctor found Plaintiff

exhibited marked limitations in all other areas of functioning,

including: understanding and memory; concentration and

persistence; social interactions; and adaptation. (Id.) He

reported Plaintiff’s limitations apply as far back as 1986. (R.

449.)

The record also contains two treatment plans for

Plaintiff prepared by Parientes:8 a January 1, 2017 plan (R. 436);

and an April 8, 2017 plan (R. 443). The second plan is,

7 Said Questionnaire appears to be a form generated by Plaintiff’s

counsel. (See, e.g., Questionnaire footer (indicating, inter

alia, Questionnaire is copyrighted by Binder in Binder).)

8 Neither treatment plan identified an individual health care

provider.

essentially, a copy of the first one. (Compare R. 436, with R.

443.) Both plans included, inter alia: Plaintiff’s diagnosis of

unspecified bipolar and related disorder and chronic PTSD;

reporting Plaintiff last received outpatient treatment from 2002

through 2003 from Catholic Charities; reporting Plaintiff had

received therapy in school since he was 13 years old; the stated

treatment goal of stabilizing Plaintiff’s mood through medical

management and therapy; a three-month estimation to achieve the

stated treatment goal; and, a recommendation of weekly treatment.

(See id.)

Further, the record indicates, while he was incarcerated

in 2019, Plaintiff suffered from anxiety, was assessed with

generalized anxiety disorder, and was referred to a psychiatrist.

(See R. 1578, 1580.) Moreover, after his release from custody,

Plaintiff resumed therapy in June 2019, seeing LCSW Jean Schult

(“LCWS Schult”). (See R. 1612, 1605-06.) His treatment was to be

biweekly. (R. 1605.) In a June 21, 2019 “Psychiatric Assessment”,9

LCWS Schult diagnosed Plaintiff with bipolar disorder, including

the description: “episode mixed severe with psychotic features”.

(R. 1605.) She reported, inter alia, Plaintiff: had frequent

episodes where his bipolar disorder caused (1) behavior that

9 The Assessment form was from the Suffolk County Department of

Social Services and was to be used as an assessment tool in

determining Plaintiff’s employability. (See R. 1605-06.)

interfered with his activities of daily living, and (2)

decompensation; and occasional episodes where his bipolar

disorder: (3) required either medical or psychiatric

hospitalization or emergency room visits, and (4) suicide

attempts. (R. 1606.) LCWS Schult further identified functional

limitations Plaintiff displayed, which would either be moderately

limiting (i.e., unable to function 50% of the time) or very

limiting (i.e., unable to function 75% or more of the time). (See

id.) Those functions for which Plaintiff would be moderately

limited, LCWS Schult identified: interacting appropriately with

others; maintaining socially appropriate behavior; and, the

ability to use public transportation. (Id.) And, those functions

for which Plaintiff would be very limited, LCWS Schult identified:

understanding and remembering both simple and complex

instructions; maintaining attention and concentration; and,

performing low stress, simple tasks. (Id.) To the inquiry whether

Plaintiff was able to participate in employment, among other

activities, LCSW Scult responded “No”; she suggested a

re-evaluation after 12 months. (Id.)

C. Plaintiff’s Testimony

When first questioned about his last job, Plaintiff

initially testified he had worked about a year prior to the August

2019 hearing. (See Disability Hr’g Tr., R. 77, at-78.) However,

per his review with his attorney of his earning statements, it was

apparent Plaintiff had worked for a livery company in the prior

year, from mid-December 2018 until mid-January 2019, approximately

a month and just prior to being incarcerated on a robbery charge.

Given the exchange between Plaintiff and the ALJ at the Disability

Hearing, it is apparent that, while the ALJ believed his “question

was very simple” (R. 78), Plaintiff was confused about, and did

not remember, specific dates regarding his employment (see R.

77-79).

Purportedly in an effort to clarify Plaintiff’s earning

history, the ALJ asked Plaintiff the reason for his 2019

incarceration. (R. 96.) The following exchange occurred:

Q Now, why were you in jail for that

five- to six-month period?

A I had a blackout and I crashed into a

building.

Q So, you were driving a vehicle?

A Yes.

Q Was it a livery car?

A No. It was my own, personal car.

Q It must be tough in Suffolk County. They

put you in jail for having an accident?

A Yeah.

Q Why?

A They said that I took stuff out of the

store, which I don’t really remember.

Until they showed me the video, I didn’t

believe that I’d did it. You know,

because like I said, I had a blackout,

and I didn’t, I was like, are you kidding

me?

Q All right, so they didn’t put you in jail

because you blacked out and had an

accident. Sounds like they put you into

jail for some sort of robbery?

A Yeah, that’s what they said that I did.

(R.96-97 (emphases added).)

The ALJ proceeded to inquire about Plaintiff’s use of a

cane and oxygen while driving for the livery company. (R. 80.)

Plaintiff first testified he used the cane when he was employed as

a livery driver; upon further inquiry of his counsel, Plaintiff

elucidated that his use of the cane was an added reason the livery

company no longer wanted him driving for it. (R. 80.) In response

to a follow-up question by the ALJ, Plaintiff also testified a Dr.

Michalowicz prescribed a cane for Plaintiff’s use in either January

or February of 2018. (R. 93-94.) The ALJ posed no other

cane-related questions to Plaintiff.

As for the oxygen, Plaintiff stated he was not using it

when he was a livery driver. (See id.) He testified to being on

oxygen while incarcerated for an approximate five-month period.

(R. 97.) Plaintiff also approximated he was “put on” oxygen

approximately nine months prior to the Disability Hearing, but he

vacillated as to when exactly that placement occurred. (See R.

80.) Plaintiff continued; he believed it was sometime in March

when he began using oxygen, i.e., five-and-a-half months prior to

the disability hearing. (See id.) Additionally, Plaintiff

testified he uses oxygen 24 hours per day. (R. 86; see also R.

97.)

Upon examination by his counsel, Plaintiff testified as

to reasons he believed he was unable to work, e.g.: back problems;

problems remembering, i.e., “a lot of problems forgetting”; the

inability to sit or stand for long periods of time; being unable

to use his cane in the livery job; and, suffering carpel tunnel in

both hands. (R. 81-82.) Plaintiff further stated that, despite

physical therapy, aqua-physical therapy, pain medications, and

surgery, he continues to suffer from back pain and requires the

use of a cane “for walking and sitting, standing[, f]or

everything”, both inside and outside. (R. 83, 84.) Relatedly,

Plaintiff explained he is morbidly obese and has bad knees; his

bad knees are another reason he uses a cane when walking. (R.

84-85.) Additionally, Plaintiff stated he has severe sleep apnea

which caused him: to have difficulty sleeping at night (R. 87); to

be tired throughout the day (R. 86); to fall asleep multiple times

throughout the day (R. 87); and, to have difficultly concentrating

and remembering (see id.). Further, Plaintiff explained he suffers

from psychiatric conditions; he has been diagnosed with bipolar

disorder and schizophrenia (R. 88), which causes him to rage and

experience blackouts (R. 89). Continuing, Plaintiff testified his

bipolar disorder causes him to make bad decisions without

considering their consequences and to suffer debilitating bouts of

depression, which can last several days. (R. 89-90.) He also

suffers from “real bad anxiety”, which causes him to want to be

alone and to have altercations with strangers. (See id.)

Plaintiff testified he had resumed psychiatric treatment sometime

in 2019. (R. 90.)

More generally, Plaintiff also testified to the

following in response to his counsel’s examination. He has

difficultly walking due to back pain, getting winded, and having

his legs “give out”. (R. 91.) Further, since he cannot stand for

long periods, Plaintiff explained he does not perform any of the

household cooking, cleaning, or laundry. (Id.) And, another

reason Plaintiff does not cook is his high distractibility, i.e.,

he forgets items on the stove which then burn. (R. 92.) Moreover,

since he cannot walk around the store, Plaintiff stated he does

not food shop. (R. 91.)

D. The VE’s Testimony

The ALJ presented the VE with three hypotheticals. For

each hypothetical, the VE was (1) to start with the premise that

the hypothetical individual was of Plaintiff’s age, education, and

work experience, and (2) opine whether there were any jobs in the

national economy such an individual could perform. In the first

hypothetical, the VE was to further assume the individual could

perform work at a light exertional level and, with, among other

limitations, could “stand and/or walk for up to four hours in an

eight-hour workday”, and could “occasionally deal with coworkers

and the public”. (R. 99-100.) Focusing upon the standing

limitation, the VE identified three jobs: screener/inspector for

printed circuits; document preparer; and, final assembler. (R.

100-01.) The VE testified, given consideration of the standing

limitation, as well as the limitation regarding interacting with

coworkers and the public, she identified these jobs based upon her

professional experience; her identification was not consistent

with the Dictionary of Occupational Titles (“DOT”) and the Selected

Characteristics of Occupations (“SCO”). (R. 101.)

In the second hypothetical, the same presumptions were

presented to the VE with the additional consideration that the

hypothetical individual “must be allowed to use oxygen during the

eight-hour workday.” (Id.) The VE testified “[u]sing oxygen is

not something that’s addressed by the DOT” and it “would usually

require some kind of accommodation before the person would be

employed.” (R. 102.) Further, she explained, inquires would have

to be made of employers since “[t]here would be some minor

accommodation in that instance.” (R. 101.) Nonetheless, the VE

testified screener/inspector and final assembler jobs would

continue to be available in the same numbers but, she would

substitute an optical products polisher job for the document

preparer job. (R. 101-102.) Her testimony was not “consistent to

DOT and SCO”; instead, it was based upon the VE’s professional

experience. (R. 102.)

In the third hypothetical, again beginning with the same

presumptions, and with the presumption that the hypothetical

individual had the same RFC as the second hypothetical, the ALJ

added the additional considerations that said individual: “must be

allowed to alternate between standing and sitting every 10 minutes

while remaining on task”; “ambulates with a cane”; requires more

than customary breaks; “[w]ould be off task more than 20 percent

of the workday”; and “would be absent from work for four or more

days per month”. (R. 103.) With those presumptions, the ALJ

inquired whether there are any jobs in the national economy such

an individual could perform, to which the VE responded there were

not. (See id.) The VE’s response to the third hypothetical was

based upon her professional experience and not the DOT or SCO.

(See id.)

Upon Plaintiff’s counsel’s cross-examination regarding

the added factor of oxygen use, the VE clarified that “[s]pecial

accommodation is usually required for using an oxygen tank

throughout the day for various reasons.” (R. 104.) She further

stated this special accommodation takes the jobs she identified

out of the competitive level. (See id.) And, as to the first

hypothetical and use of a cane, the VE testified, “If they[, i.e.,

such hypothetical individuals,] have to, if they’re going to be

standing part of the time on those jobs to change positions and

they require a cane when standing, they will not be able to perform

any of those jobs.” (R. 105.)

III. The ALJ Decision

A. Generally

In an August 19, 2019 decision, the ALJ found Plaintiff

was not disabled (hereafter, the “ALJ Decision”). (R. 10-25; see

also id. at 26-31 (List of Exs.).) More specifically, while the

ALJ found Plaintiff suffered from the severe impairments of, inter

alia, lumbar degenerative disc disease with spondylosis and

compression status post laminectomy, bipolar disorder, PTSD, and

anxiety disorder (R. 12), he 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. at R.13 (bold emphasis omitted)).

Further, upon the record presented, the ALJ found Plaintiff

maintained a residual functional capacity (“RFC”) to perform

sedentary work “as defined in 20 CFR 416.967(a)” with further

exceptions, including that Plaintiff could “stand and/or walk for

up to 4 hours in an 8-hour workday”. (R. 16 (bold emphasis

omitted).) Moreover, the ALJ determined the record supported

finding Plaintiff was “able to understand and remember simple

instructions, make simple work[-]related decisions, carry-out

simple instructions, c[ould] occasionally deal with changes in a

routine work setting, and c[ould] occasionally deal with coworkers

and the public.” (Id. (bold emphasis omitted).) The ALJ

elucidated that, in making this finding, he:

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 416.929 and SSR 16-

3p. [He] also considered opinion evidence in

accordance with the requirements of 20 CFR

416.927.

(Id. at 16-17.) The ALJ explained he 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

functional limitations.” (Id. at 17.) 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.” (Id.)

B. Regarding Plaintiff’s Lower Back Pain

Particular to Plaintiff, the ALJ chronicled Plaintiff’s

musculoskeletal impairments for a truncated period of time, i.e.,

from December 2016 to November 15, 2017. (See R. 17-18.) The ALJ

first stated Plaintiff had MRIs of his lumbar spine on December 1,

2016, and July 25, 2017, with both evincing degenerative changes

and foraminal stenosis. (R. 17.) Similarly, a December 31, 2016

MRI of Plaintiff’s thoracic spine revealed degenerative changes of

the intervertebral discs. (Id.) And, a December 19, 2016

electromyogram study of the middle section of Plaintiff’s spinal

column showed “showed chronic multilevel bilateral lumbosacral

radiculopathy . . . but no focal mononeuropathy of either leg.”

(R. 18.)

The ALJ then summarized a series of five doctor

interactions Plaintiff had which were related to his back. The

first was Plaintiff’s January 20, 2017 visit with Dr. Daniel

Brandenstein. (R. 18.) The ALJ reported: Plaintiff presented

“with sharp and stabbing pain localized to the lower back”, which

pain Plaintiff rated “as 9/10 at its worst” (id.); Plaintiff stated

his pain “worsened with walking, standing, sitting and lying down”,

and prolonged periods of sitting also worsen the pain, which was

“relieved with rest” (id.); and, given Plaintiff’s presentation

and the symptoms of which he complained, Dr. Brandenstein assessed

neurogenic claudication. (See id.)

The second was Dr. Brandenstein’s March 13, 2017 surgery

on Plaintiff “by lumbar laminectomy of the L2, L3[,] and L4

vertebrae, partial laminectomy of the L1 and L5 vertebrae[,] and

repair of the incidental durotomy of the caudal aspect of the L4

vertebra.” (R. 18.) The third was the following March 14, 2017

review by Dr. Gerald Schulze of the duplex ultrasound of

Plaintiff’s lower extremities, which showed “no acute deep vein

thrombosis within the visual venous system of the lower

extremities.” (Id.)

The fourth doctor’s encounter the ALJ recognized was

Plaintiff’s October 11, 2017 visit with Dr. Phillippe Vailancourt

during which Plaintiff complained of chronic low back pain. (R.

18.) During said visit, Plaintiff also complained: his back pain

extended down his right leg to his knee; tingling in all toes on

his right foot; and, his pain was “worse with sitting or standing

too long or walking more than short distances.” (Id.) In addition

to back pain, the Doctor noted Plaintiff suffered joint pain and

swelling, and muscle weakness; otherwise, the Doctor’s review of

Plaintiff’s body systems was unremarkable”. (Id.)

The fifth and final doctor encounter regarding

Plaintiff’s lower back pain which the ALJ discussed was Plaintiff’s

November 15, 2017 follow-up visit with Dr. Daniel Kohane. (R.

18.) At that visit, the Doctor reviewed with Plaintiff the results

of an MRI the Doctor had ordered after his October 16, 2017

examination of Plaintiff at which Plaintiff presented with

complaints of knee pain. (See R. 1497.) The ALJ provided the MRI

findings contained in Dr. Kohane’s “Visit Notes” under the “Tests”

section. (Compare ALJ Decision at R. 18, with Dr. Kohane’s Nov.

15, 2017 “Visit Notes” at R. 1468.10) The ALJ further stated Dr.

Kohane’s examination revealed Plaintiff’s: “lower extremities were

normal; lumbar flexion at 20 percent with pain; extension at 0

percent with pain; bilateral lumbar paraspinal tenderness,

multiple trigger points were palpable; thoracolumbar spine was

positive for Kemp’s maneuver bilaterally; facet joints painful

with palpation bilaterally, but straight leg raise were negative.”

(R. 18 (citing Ex. B26F at pp. 6-7).)

Based upon this limited assessment of the evidence, the

ALJ found Plaintiff’s “lumbar degenerative disc disease with

spondylosis and compression fracture status post laminectomy has

produced functional limitations that reduced his exertional

capacity to the light RFC.” (R. 18.) But, because Plaintiff “had

negative straight leg raise testing and retained the strength of

his lower extremities,” the ALJ also found “a sedentary RFC is not

warranted.” (Id.) Yet, he also concluded Plaintiff’s “functional

10 In the ALJ Decision, the ALJ cites to “Ex.B26F” at page 7; said

citation is located in the Administrative Transcript at R. 1468.

For clarity: Exhibit B26F comprises of 57 pages of documents;

they are the “Office Treatment Records” of Dr. Kohane. (See R.

30.) Exhibit B26F includes Dr. Kohane’s full Visit Notes from

November 15, 2017, in addition to Visit Notes from other dates.

limitations brought on by pain and limitations in his range of

motion warrant further nonexertional limitations that address

postural movements as defined in the RFC assessment to erode the

occupational base.” (R. 18-19.)

C. Regarding Plaintiff’s Mental Health

The ALJ narrated Plaintiff’s mental health treatment as

follows, based primarily upon treatment notes from two dates.

First, from the December 10, 2016 “Intake Notes” of Parientes of

Suffolk, a medical group specializing in counseling and social

work, the ALJ stated Plaintiff had presented with “symptoms of

depression and anxiety interspersed with periods of bursts of

energy” and reported to the Licensed Clinical Social Worker

(“LCSW”) that he does not like crowds and had been diagnosed with

agoraphobic and antisocial personality disorder. (R. 20.) The

LCSW diagnosed Plaintiff with unspecified bipolar and related

disorder, as well as agoraphobia; Plaintiff was prescribed

medication management and therapy to stabilize his mood. (Id.)

Second, relying upon the notes of Nurse Practitioner

(“NP”) Eva McDowall, of Parientes of Suffolk, the ALJ stated

Plaintiff had reported on December 22, 2016, that he suffered from

agoraphobia with anxiety and depression, and that he required new

prescriptions. (R. 20.) The ALJ also included NP McDowall:

prescribed Plaintiff medications to treat his mental health

conditions, i.e., Venlafaxine, Buspar, and Clonazepam; and,

diagnosed Plaintiff with generalized anxiety disorder and chronic

post-traumatic stress disorder.11 (Id.)

Finally, the ALJ concluded: “On April 24, 2017,

Parientes of Suffolk terminated [Plaintiff] from treatment because

of insufficient progress. The [Plaintiff] missed 6 of his last 8

appointment.” (R. 20.) From this background, the ALJ:

gave [Plaintiff’s] subjective allegations of

functional limitations resulting from his

bipolar disorder, post-traumatic stress

disorder[,] and anxiety disorder the benefit

of the doubt to include nonexertional

limitations to limit [Plaintiff] to simple

skills, occasional changes in a routine work

setting[,] and occasional dealing with

coworkers and the public to further erode the

occupational base.

(Id.) The ALJ buttressed his RFC determination by relying upon

the opinions of a non-examining psychologist, Dr. T. Harding, who

reviewed Plaintiff’s records through March 3, 2017. (See R. 22;

cf. R. 145.) The ALJ also asserted his RFC determination, i.e.,

Plaintiff was “able to perform basic skills in a low contact

setting, was supported by Dr. Harding’s 2017 opinion because

Plaintiff “exhibited such work capacity by driving for” the livery

company for an approximate one-month period. (R. 22.)

11 While it is unclear from his Decision what the relevant is to

the determination of disability or entitlement to benefits, the

ALJ also made the point of stating NP McDowall noted Plaintiff

both had been “recently released from prison after three years”

and was “currently on parole with a history of two imprisonments”.

(R. 20.)

Conversely, the ALJ found the limitations identified by

Dr. Sarmiento were “not consistent and not supported by the

objective clinical and diagnostic finding,” i.e., Plaintiff’s

treatment at Parientes of Suffolk, “as well as the records review

findings” of non-examining psychiatric consultant, Dr. Harding.

(R. 22 (citing Ex. B8F, Dr. Sarmiento’s May 21, 2017 “Mental

Impairment Questionnaire”).) Therefore, the ALJ gave Dr.

Sarmiento’s limitations little weight. (Id.)

D. Regarding the VE’s Testimony

Since Plaintiff’s ability to perform all or

substantially all of the requirements of sedentary work was

“impeded by additional limitations”, in order “[t]o determine the

extent to which these limitations erode the unskilled sedentary

occupational base,” the ALJ posed several hypothetical scenarios

to the VE. (R. 24.) The ALJ found the three jobs the VE identified

for the hypothetical individual of Plaintiff’s age, education,

work experience, and RFC, i.e., a screener/inspector, a document

preparer, and a final assembler, was consistent with the

information contained in the DOT and with the VE’s professional

experience. (See id.) However, as to the VE’s response to the

ALJ’s hypothetical involving such an individual with the added

requirement that the individual required using “oxygen during an

8-hour workday”, to which the VE testified on cross-examination

“that the use of oxygen is a special accommodation by employers

and would actually preclude competitive employment,” without

explanation, the ALJ found the VE’s “testimony in response to [the

oxygen-use-related] hypothetical unpersuasive.”12 (Id.) Hence,

relying upon the VE’s testimony as to the ALJ’s first hypothetical,

the ALJ concluded, considering Plaintiff’s age, education, work

experience, and RFC, Plaintiff “is capable of making a successful

adjustment to other work that exists in significant numbers in the

national economy” and, therefore, is “not disabled”. (Id.; see

also R. 25.)

IV. Post-ALJ Decision

A. Subsequent Procedural History

On September 9, 2020, 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.)

On November 10, 2020, Plaintiff initiated the instant

action. (See Compl.) Thereafter, on November 29, 2021, Plaintiff

moved for judgment on the pleadings, requesting a reversal of the

ALJ Decision and an award of benefits or, alternatively, the case

be “remanded for a new hearing and decision . . . .” (Support

Memo at 30.) On February 15, 2022, the Commissioner crossed-moved

for judgment on the pleadings, asserting the ALJ Decision should

12 In the ALJ Decision, the ALJ did not address the third

hypothetical scenario, i.e., the cane-use hypothetical, he

presented to the VE during the Disability Hearing.

be affirmed and this action be dismissed. (See Cross-Support Memo

at 29.)

B. The Parties’ Positions

Plaintiff puts forth two arguments in support of his

Motion; the ALJ: (1) failed to properly weigh the medical opinion

evidence, especially that of his treating physicians (see Support

Memo at 17-20, 21-22 (re: orthopedic surgeon Dr. Brandenstein),

and at 22-24 (re: treating psychiatrist Dr. Sarmiento); see also

Reply at 1-2; 4-5 (arguing ALJ failed to consider Plaintiff’s

longitudinal medical record)), whose opinions the ALJ contended

where not consistent with the record evidence, but instead

improperly relied upon the opinions of non-examining doctors (see

id. at 20 (re: Plaintiff’s musculoskeletal impairments), and at 26

(re: Plaintiff’s mental impairments)); and (2) failed to properly

evaluate Plaintiff’s subjective statements, with the ALJ having

failed to adequately articulate his rationale for his assessment

of Plaintiff’s subjective complaints, especially highlighting the

lack of “any reasons for discounting [Plaintiff]’s statements

regarding his mental impairments.” (Id. at 29; see also id. at

29-30; Reply at 5 (asserting “the ALJ failed to build a bridge

between the summary of the evidence regarding [Plaintiff]’s mental

impairments and a finding that Plaintiff’s allegations [we]re not

credible”).)

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 29.) In opposition to Plaintiff’s Motion, the Commissioner

asserts: (1) “the ALJ properly considered the medical-opinion

evidence and sufficiently explained his reasons for the weight

assigned to the various opinions” (id. at 18; see also id. at 26);

(2) regarding Plaintiff’s back impairment, in finding Dr.

Brandenstein’s opinions to be inconsistent, “a searching review of

the record establishes that the substance of the treating physician

rule was not traversed” by the ALJ (id. at 22), and as to

Plaintiff’s use of a cane, there is no medical evidence supporting

its required use (see id. at 28); and (3) regarding Plaintiff’s

mental impairment, the evidence showed Plaintiff received

inconsistent mental health treatment over a two-year period, which

inconsistency, under the regulations, is a basis to disregard an

individual’s subjective complaints, but, nonetheless, the ALJ

afforded Plaintiff the benefit of the doubt by including certain

RFC limitations (see id. at 27 (including limitations as to

understanding and remembering simple instructions, making simple

work-related decisions, carrying out simple instructions,

occasionally dealing with changes in a routine work setting, and

occasionally dealing with coworkers and the public); see also id.

at 29.)

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)).

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)).

Relatedly, as this Court stated in Kelly v. Commissioner

of Social Security:

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).

Kelly v. Comm’r of Soc. Sec., No. 20-CV-5318, 2024 WL 5120051, at

*9 (E.D.N.Y. Dec. 16, 2024); Rivers v. Kijakazi, No. 21-1935-CV,

2023 WL 2485467, at *1 (2d Cir. Mar. 14, 2024) (summary order)

(“An ALJ’s failure to develop the record warrants remand.” (citing

Rosa, 168 F.3d at 79-80)); Calicchio v. Comm’r of Soc. Sec., No.

24-CV-1065, 2025 WL 1489763, *5 (E.D.N.Y. May 23, 2025) (same;

quoting Kelly); see also generally Calicchio, 2025 WL 1489763, at

*13; Rodriguez v. Comm’r of Soc. Sec. Admin., No. 24-CV-0167, 2025

WL 660265, at *3, *5 (E.D.N.Y. Feb. 28, 2025) (same; quoting and

citing Kelly).

[Remainder of page intentionally left blank.]

II. The Instant Case13

Having reviewed the record presented, it is abundantly

unclear to the Court how the ALJ arrived at his determination of

non-disability notwithstanding his claim to have carefully

considered the evidence. (See ALJ Decision, R. 10.) Indeed, there

is a difference between considering evidence and articulating how

the Agency considered evidence. See 82 Fed. Reg. 5844-01, at 5858.

The Court finds the ALJ Decision is deficient, lacking needed

rationales, thereby thwarting its ability to engage in any

meaningful review of said Decision. Relatedly, it is readily

apparent the ALJ did not comply with the applicable treating

physician rule, failing to afford the proper weight to the opinions

of Plaintiff’s treating physicians or providing good reasons for

his discounting of those doctors’ opinions. See, e.g., Gagovits

13

For claims filed prior to March 27, 2017, like

this one, the ALJ’s findings of fact are

constrained by “the treating physician rule.”

Colgan v. Kijakazi, 22 F.4th 353, 359 & 359

n.2 (2d Cir. 2022) (citing 20 C.F.R. §

404.1527(c)(2)). “The treating physician

rule, as its name connotes, states that the

medical opinion of a claimant’s treating

physician must be given ‘controlling weight’

if it ‘is well-supported by medically

acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the

other substantial evidence in the case

record.’” Id. at 359–60 (quoting Estrella v.

Berryhill, 925 F.3d 90, 95 (2d Cir. 2019)).

Rivers, 2023 WL 2485467, at *2.

v. Colvin, No. 15-CV-3246, 2016 WL 4491537, at *8 (E.D.N.Y. Aug.

25, 2016) (explaining “[w]hen an ALJ does not accord controlling

weight to the opinion of a treating physician”, he must consider

the so-called Burgess Factors and “must also set forth ‘good

reasons” for not crediting the opinion or a plaintiff’s treating

physician” (citations omitted)); see also Arias v. Kijakazi, 623

F. Supp. 3d 277, 284 (S.D.N.Y. 2022) (same). Moreover, it appears

the ALJ has cherry-picked evidence from the record, which is

impermissible. See Javon W. v. Comm’r of Soc. Sec., 629 F.Supp.3d

62, 67 (W.D.N.Y. 2022) (“[T]he ALJ may not ‘cherry pick’ evidence.”

(citation omitted)) (collecting cases). In a similar vein, the

Court finds the ALJ did not properly develop the record

notwithstanding his duty to do so. See Kelly, 2024 WL 5120051, at

*9. The Court highlights several issues with the ALJ Decision

necessitating a remand.14 See Rivera, 2020 WL 8167136, at *14; see

also Brown, 708 F. Supp. 3d at 243.

A. Noncompliance with the Treating Physician Rule

An ALJ must evaluate every medical

opinion received. Rodriguez v. Colvin, No. 12-

CV-3931, 2014 WL 5038410, at *17 (S.D.N.Y.

Sept. 29, 2014). Under the regulations

applicable at the time [Plaintiff]’s

disability claim was filed, a treating

14 For clarity: There are other problems with the ALJ Decision,

e.g., the ALJ’s failure to articulate his reasons for finding

unpersuasive the VE’s testimony in response to the proffered second

hypothetical (see R. 24); however, having determined remand is

warranted for other reasons, the Court has not addressed all the

issues it found with the ALJ Decision. (See, supra, at 65.)

physician’s opinion will be given controlling

weight if it is “well-supported by medically

acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the

other substantial evidence in [the] case

record.” 20 C.F.R. § 416.927(c)(2); see also

Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir.

2008). Conversely, an ALJ is not required to

assign a treating physician’s opinion

controlling weight when it is contradicted by

substantial evidence in the record. Veino v.

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

(noting that a treating physician’s opinion is

not controlling when contradicted “by other

substantial evidence in the record”).

When an ALJ gives a treating physician’s

opinion less than controlling weight, the ALJ

must give “good reasons” for doing so. 20

C.F.R. § 416.927(c)(2) (stating that the

agency “will always give good reasons in our

notice of determination or decision for the

weight we give [the claimant’s] treating

source’s medical opinion”); Snell v. Apfel,

177 F.3d 128, 133 (2d Cir. 1999); Schaal, 134

F.3d at 505. “Failure to provide ‘good

reasons’ for not crediting the opinion of a

claimant’s treating physician is a ground for

remand.” Snell, 177 F.3d at 133; see also

Schaal, 134 F.3d at 505 (“Commissioner’s

failure to provide ‘good reasons’ for

apparently affording no weight to the opinion

of plaintiff’s treating physician constituted

legal error”).

If the ALJ decides not to give

controlling weight to a treating physician’s

opinion, the ALJ must determine how much

weight, if any, to give that opinion.

Estrella v. Berryhill, 925 F.3d 90, 95 (2d

Cir. 2019). In doing so, the ALJ must

“explicitly consider” the following, non-

exclusive “Burgess factors”: “(1) the

frequen[cy], length, nature, and extent of

treatment; (2) the amount of medical evidence

supporting the opinion; (3) the consistency of

the opinion with the remaining medical

evidence; and (4) whether the physician is a

specialist.” Selian, 708 F.3d at 418 (citing

Burgess, 537 F.3d at 129 (citing 20 C.F.R. §

404.1527(c)(2))). While failure to explicitly

apply the Burgess factors is a procedural

error, a reviewing court will not reverse the

Commissioner’s decision when the Commissioner

has given “good reasons” for its weight

assignment. Estrella, 925 F.3d at 96. “Good

reasons” are reasons that assure the reviewing

court that “the substance of the treating

physician rule was not traversed.” Id.

Arias, 623 F. Supp. 3d at 284.

Here, the ALJ failed to give controlling weight to the

opinions of Plaintiff’s treating surgeon, Dr. Brandenstein. (See

ALJ Decision, R. 22.) Yet, in doing so, he also failed to

explicitly discuss the requisite Burgess Factors. (See id.) For

example, missing from the ALJ Decision is any discussion of the

frequency, length, nature, and extent of Dr. Brandenstein’s

treatment of Plaintiff; nor did the ALJ address the fact that the

Doctor specialized in spinal and orthopedic surgeries.

Continuing, without citation, the ALJ baldly asserted the

limitations Dr. Brandenstein identified in his Spinal Impairment

Questionnaire were, inter alia, “not consistent with other medical

providers’ findings and not supported by the objective clinical

and diagnostic findings.” (Id.) Yet, relatedly, to the extent

the ALJ discounted Dr. Brandenstein’s limitations because, shortly

after surgery, Plaintiff reported some relief (see id.), the ALJ

failed to reconcile the record evidence that Dr. Brandenstein

advised Plaintiff of this potential temporary outcome, which came

to fruition when, post-surgery, Plaintiff once more experienced

back pain. (See supra at 16-18.) At bottom, in the absence of

“good reasons” for the weight he assigned Dr. Brandenstien’s

opinions, this Court is without assurance that the substance of

the treating physician rule was not traversed by the ALJ. See

Arias, 623 F. Supp. 3d at 284. Left with such a predicament,

remand is warranted.

Similarly, as to the limitations of Dr. Sarmiento, a

psychiatrist with Parientes, the group through which Plaintiff had

received mental health treatment in late 2016 through early 2017,

the ALJ gave them limited weight. In a cursory manner, the ALJ

discounted Dr. Sarmiento’s identified limitations on the basis of

Plaintiff having “failed to show up to the majority of his therapy

appointments” and the “records review findings of the Psychiatric

Consultant, Dr. Harding.” (Id.) Once more, however, the ALJ

woefully failed to discuss the required Burgess Factors in making

this determination. But, “[a]dherence to the treating physician

rule is ‘all the more important in cases involving mental health.’”

Arias, 623 F. Supp. 3d at 284 (quoting Flynn v. Comm’r of Soc.

Sec. Admin., 729 F. App’x 119, 122 (2d Cir. 2018)).

Moreover, of significance, in the ALJ Decision, the ALJ

gave short shrift to the records of NP MacDowall, who was also a

Patientes provider treating Plaintiff during the relevant 2016-

2017 time-period. Inexplicably, the ALJ’s focus appears to be on

NP MAcDowall’s passing notations regarding Plaintiff’s penal-

related history and not her professional opinions. (See ALJ

Decision, R. 20.) However, since both Dr. Sarmiento and NP

MacDowall were working in the same mental health group and treating

Plaintiff during the same time frame, NP MAcDowall’s records were

relevant and should have also been considered. See, e.g., Arias,

623 F. Supp. 3d at 285 (instructing “a longitudinal understanding

of the claimant’s impairment is particularly important with

respect to mental health conditions” (citations omitted)).

Indeed, given the holistic review which is to be undertaken by an

ALJ, the records of Dr. Sarmiento and NP MacDowall should have

been reviewed in tandem. See, e.g., generally Riaz v. Comm’r of

Soc. Sec., No. 20-CV-8418, 2022 WL 4482297, at *4 (S.D.N.Y. Sept.

27, 2022) (in discussing new regulations, explaining the

“consistency” factor “evaluates medical opinions in a holistic

context, considering ‘how well a medical source is supported, or

not supported, by the entire record’” (citation omitted)).15 Doing

so would have encompassed consideration of many of the necessary

Burgess Factors, e.g., the frequency, length, nature, and extent

of treatment, as well as the amount of medical evidence supporting

15 The Court notes that while the new regulations have eliminated

the “treating physician” rule, courts have observed “the factors

under the new regulations ‘are very similar to the analysis under

the old treating physician rule.’” Armstead v. Comm’r of Soc.

Sec., No. 20-CV-2841, 2024 WL 5077582, at *14 (E.D.N.Y. Dec. 11,

2024) (citation omitted; collecting cases).

Dr. Sarmiento’s opinion. However, finding the ALJ’s review of the

Patientes records was myopic, the Court is unable to determine

whether the ALJ properly assessed Dr. Sarmiento’s opinion, and

whether that assessment encompassed consideration of the records

of NP MacDowall, Dr. Sarmiento’s colleague, who was also treating

Plaintiff at the same time as and, apparently, in conjunction with,

Dr. Sarmiento. Cf., e.g., Poceous v. Comm’r of Soc. Sec., No. 20-

CV-4870, 2024 WL 3029197, at *13 n.11 (stating “the Court is left

with the impression the ALJ cherrypicked the record to choose what

supported his RFC determination”, thereby warranting remand); see

also Rivera v. Sullivan, 771 F. Supp. 1339, 1354 (S.D.N.Y. 1991)

(stating an ALJ cannot simply “pick and choose” evidence in the

record that supports his conclusion).

And, problematically, in discounted Dr. Sarmiento’s

limitations, the ALJ also relied upon the opinion of a non-

examining psychiatric consultant. Yet, “it is well-established

that the medical opinion of a non-examining medical expert is

entitled to little weight, especially when a claimant’s

impairments are based upon his mental health.” Armstead v. Comm’r

of Soc. Sec., No. 20-CV-2841, 2024 WL 5077582, at *15 (E.D.N.Y.

Dec. 11, 2024) (citing Skartados v. Comm’r of Soc. Sec., No. 20-

CV-3909, 2022 WL 409701, at *9 (E.D.N.Y. Feb. 10, 2022). As this

Court further elucidated in Armstead and as is relevant here:

Rather, “courts frequently find that RFC

determinations that depend entirely on the

opinions of non-examining experts and one-time

consultative examiners are not supported by

substantial evidence.” Agostino v. Kijakazi,

No. 22-CV-7235, 2024 WL 1259247, at *5–6

(E.D.N.Y. Mar. 25, 2024) (internal quotation

marks omitted); cf. Estrella, 925 F.3d at 98

(“We have frequently cautioned that ALJs

should not rely heavily on the findings of

consultative physicians after a single

examination.” (internal quotation marks

omitted)); Fintz v. Kijakazi, No. 22-CV-0337,

2023 WL 2974132, at *5 (E.D.N.Y. Apr. 15,

2023) (“While heavy reliance on a one-time

examiner’s opinion does not automatically

constitute a legal error, the Second Circuit

has warned that heavily relying on an examiner

who only examined a claimant once is

inadvisable.”). “This concern is even more

pronounced in the context of mental illness

where . . . a one-time snapshot of a claimant’s

status may not be indicative of h[is]

longitudinal mental health.” Estrella, 925

F.3d at 98. This applies more so to a non-

examining consultant since, in cases where

mental health is the most limiting disability,

it is generally “improper to rely on the

opinion of a non-treating, non-examining

doctor[,] because the inherent subjectivity of

a psychiatric diagnosis requires the physician

rendering the diagnosis to personally observe

the patient.” Ron I., 2024 WL 4678398, at *8

(citing Velazquez v. Barnhart, 518 F. Supp. 2d

520, 524 (W.D.N.Y. 2007)).

Id. (emphasis added). Because Dr. Harding was a non-examining

consultant, his disability determination “deserve[s] little weight

in the overall evaluation of disability.” Id.; see also Soto v.

Comm’r of Soc. Sec., No. 19-CV-4631, 2020 WL 5820566, at *7 and

n.20 (E.D.N.Y. Sept. 30, 2020) (collecting cases in footnote).

And, the Court finds the ALJ’s reliance on Plaintiff’s subsequent

one-month stint as a livery driver, without more, does nothing to

cure that defect.

Finally, the record evidence shows that,

post-incarceration, Plaintiff once more pursued mental health

treatment. Yet, there is little indication the ALJ took steps to

develop the record in this regard; indeed, the ALJ Decision is

silent as to Plaintiff’s 2019 resumption of mental health

treatment. Yet, the ALJ should have done so, and his failure in

this regard is another basis for remand. See Armstead, 2024 WL

5077582, at *17; see also, e.g., Grady v. Comm’r of Soc. Sec., No.

20-CV-3739, 2024 WL 4607231, at *8-9 (E.D.N.Y. Oct. 28, 2024)

(finding ALJ’s failure to fully develop administrative record was

a threshold basis to remand case) (collecting cases). Relatedly,

as Plaintiff aptly argues:

To the extent the ALJ attempted to suggest

[Plaintiff]’s allegations are not credible

because he has not had consistent treatment

for his mental impairments, such a finding

without more is insufficient. It is well-

established that frequently individuals “who

suffer[] from psychological and emotional

difficulties . . . lack the rationality to

decide” upon appropriate treatment measures.

(Reply at 6 (quoting Thompson v. Apfel, No. 97-CV-7697, 1998 WL

720676, *6 (S.D.N.Y. Oct. 9, 1998); further citations omitted).

The Court does not disagree. See, e.g., Diano v. Comm’r of Soc.

Sec., No. 19-CV-2265, 2020 WL 13555076, at *16 (E.D.N.Y. Dec. 2,

2020) (citing Rosa, 168 F.3d at 83 (finding remand “particularly

appropriate” where ALJ failed to obtain adequate information from

treating physicians and potentially relevant information from

other doctors)) (collecting cases). Indeed, as this Court recently

stated:

Moreover, it has been “consistently recognized

that ‘an ALJ has a heightened duty to develop

the record when a claimant asserts a mental

impairment.’” [Michelle C. v. Comm’r of Soc.

Sec., No. 23-CV-7144, 2024 WL 1706000, at *6

(S.D.N.Y. Apr. 3, 2024), report and

recommendation adopted, 2024 WL 1702127

(S.D.N.Y. Apr. 18, 2024)] (quoting Gabrielsen

v. Colvin, No. 12-CV-5694, 2015 WL 4597548, at

*4-5 (S.D.N.Y. July 30, 2015) (collecting

cases)). Indeed, “[t]his ‘heightened duty’

derives from the fact that a claimant’s mental

illness may greatly impede an evaluator’s

assessment of a claimant’s ability to function

in the workplace, thus necessitating a more

thorough review.” Id. (quoting Piscope v.

Colvin, 201 F. Supp. 3d 456, 462-63 (S.D.N.Y.

2016)). In that vein, “[t]he duty to develop

the record . . . includes the duty to re-

contact physicians when needed to afford the

claimant a full and fair hearing based on an

adequately developed record.” Id.

Grady, 2024 WL 4607231, at *8. Thus, here, given the information

before the ALJ, it was incumbent upon him to, at a minimum, further

develop the record as to Plaintiff’s more recent mental health

treatment, which he failed to do.

B. Cherry-Picking: The ALJ’s Limited Time Period Review

Plaintiff argues the Commissioner’s “obdurate focus on

selected findings in treatment records from a two[-]month period

is highly misleading regarding [his] functioning during the entire

period at issue, which runs from the time he filed his claim for

benefits in November 2016 through the date of the [ALJ Decision]

in August 2019.” (Reply at 1.) The Court agrees. The ALJ focuses

almost exclusively upon the two-month subset of time, i.e., the

two-month period of time after the back surgery performed by Dr.

Brandenstein. (See ALJ Decision at R.18.) Yet, as Plaintiff

asserts, and the record medical evidence substantiates, despite a

temporary reprieve in back pain following his March 2017 back

surgery, thereafter, Plaintiff continued to experience back pain;

“[b]y April 21, 2017, [Plaintiff’s] back pain had increased to 7

to 10mon a 10-point scale.” (Reply at 2 (citing R. 495).) Indeed,

the record establishes that, subsequently, Plaintiff consistently

complained of back pain, which did not improve. (See, e.g., Reply

at 2 (asserting “due to lack of improvement in his pain,

[Plaintiff] was later advised to seek treatment with a spinal cord

stimulator, medial branch block injections, and strong opioids,

including Fentanyl patches and Oxycodone” (citing R. 1386, 880,

and 881, respectively)).) By way of example and contrary to the

ALJ’s summary of Plaintiff’s November 2017 visit with Dr. Kohane,

among other things, in his “Visit Note”, Dr. Koahne recorded

Plaintiff reporting pain at an “8/10” level and which was

radiating, constant, chronic, and worsens with activity. (R.

1497.) Further, Dr. Kohane also noted Plaintiff had an antalgic

gait and was using a cane; relatedly, he also recorded Plaintiff’s

range of motion for both his knees as “grossly limited and with

pain”. (R. 1498.) Dr. Kohane also included his impressions

regarding Plaintiff’s lumbar radiculitis—aka radicular pain:

Low back pain remains constant severe and

radicular. Pain is affecting [Plaintiff’s]

daily life. Despite having spine surgery he

continues to have pain. Does not want to have

further surgery nor believes it will be

beneficial. MRI lumbar spine report reviewed

with patient. Minimal relief with

conservative management. Based on his

findings I feel he will benefit from lumbar

epidural steroid injection midline L5-S1

levels for diagnostic purposes. For

conservative management recommend physical

therapy weight loss program. Medication

management continue the same for now[;] he is

using pain meds from outside pain provider.

He is in agreement with this plan.

(R. 1498.) The Doctor further stated Plaintiff’s status

was “[w]orsening”. (Id.) This record evidence, juxtaposed with

the ALJ’s assessment, makes is abundantly unclear to the Court how

the ALJ arrived at his RFC assessment and his determination of

non-disability. Hence, the Court concurs with Plaintiff’s astute

argument:

The ALJ was required to consider the

longitudinal treatment record showing such

significant findings rather than focusing on

[Plaintiff]’s brief improvement after

surgery. To suggest that the medical record

indicates minimal pain and no significant

clinical or objective abnormalities either

before or after surgery to substantiate the

opinions from the treating board-certified

specialist borders on bad faith.

(Id. at 2-3 (citing Sutherland v. Barnhart, 322 F. Supp. 2d 282,

289 (E.D.N.Y. 2004) (“It is not proper for the ALJ to simply pick

and choose from the transcript only such evidence that supports

his determination . . . .”)) (emphasis added)); see also Matta v.

Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (instructing that, in

deciding a disability claim, an ALJ is to “weigh all of the

evidence available to make an RFC finding that [is] consistent

with the record as a whole”). Given the ALJ Decision, it is

manifestly unclear whether the ALJ properly considered and,

therefore, weighed, all of the evidence available, as he was

required to do, versus a small component thereof. Accordingly,

remand is warranted.

C. Select Credibility Determinations by the ALJ

It is well-settled “where [a court is] unable to fathom

the ALJ’s rationale in relation to evidence in the record,

especially where credibility determinations and inference drawing

is required of the ALJ, [the court] will not hesitate to remand

for further findings or a clearer explanation for the decision.”

Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (quotations

omitted)). Such is the case here;16 the Court is perplexed by the

ALJ’s credibility determinations. It highlights two examples.

16 The Court provides two example of issues it has with the ALJ’s

credibility determinations; there are others. For example,

without adequate rationale, the ALJ concluded Plaintiff was lying

when he testified that he began to work for the livery company in

1. Based Upon Plaintiff’s Oxygen Use

As a purported example of Plaintiff’s incredibility, the

ALJ proffers Plaintiff’s testimony regarding his oxygen use. (See

ALJ Decision, R. 21.) Yet, once more, the ALJ fails to provide a

fulsome picture; instead, he focuses upon Plaintiff’s earlier

oxygen use, failing to adequately discuss how said use expanded

with time. Indeed, the evidence shows Plaintiff’s oxygen use was,

essentially, full-time as of his mid-January 2019 incarceration.

(See, e.g., R. 1545-46.) And, given Plaintiff’s consistent

testimony that he often forgets things (see, e.g., R. at 87), it

is not surprising he was unable to recall precisely when, in 2019,

that prescription occurred; indeed, Plaintiff clearly testified he

could not recall exactly when he was prescribed full-time oxygen.

(R. 80.) Moreover, the record evidence shows that, while

incarcerated in 2019, Plaintiff was on oxygen (see, e.g., R.

1525-26; R. 1545-46) and was taken to medical facilities outside

the prison multiple times (see, e.g., R. 1529-30, 1532, 1534, 1536,

January 2019. (See ALJ Decision, R. 21.) A clearer explanation

is warranted, especially since review of Plaintiff’s testimony on

the issue of his employment period with the livery company could,

fairly viewed, show confusion on the part of Plaintiff. (See R.

77-79.) Indeed, there is ample record evidence that Plaintiff was

easily confused or had difficulty remembering things. (See, e.g.,

id.; R. 87.) The Court further notes there is a reference in the

record to Plaintiff having a hearing aid. (See R. 1584.)

Therefore, it is possible Plaintiff did not accurately hear or

understand the ALJ’s inquiry; however, there is no indication the

ALJ ever asked Plaintiff if he had problems hearing or with

understanding his line of questioning.

1540-41, 1543, 1546, 1558, 1560, 1564-65, 1570, 1575, 1578); thus,

it was entirely possible an outside doctor could have prescribed

such oxygen use for Plaintiff while he was incarcerated. Given

the evidence before him, at a minimum, the ALJ should have done

more to develop the record if there appeared to be an apparent

inconsistency. However, it appears the ALJ was content to jump to

negative conclusions. At bottom, given the record before it, the

Court is confounded by the ALJ’s credibility conclusion based upon

Plaintiff’s documented escalating oxygen use, which conclusion the

ALJ seems to have based upon Plaintiff’s earlier oxygen use.

2. Based Upon Plaintiff’s Cane Use

In his decision, the ALJ stated, inter alia:

[Plaintiff] testified that Dr. Richard

Michalowicz prescribed the cane in Jan[uary]

2018 and he has used it since. However,

[Plaintiff] was in jail beginning in January

2019 after committing robbery and underwent

several medical visits while incarcerated

which does not record the use of a cane (Ex.

B27F). More importantly, the medical evidence

does not support the use of a cane which showed

no atrophy, good strength and no sign of

instability (e.g., Ex. B12F/3, 6, 19; B13F/68,

etc.)

Contrary to [Plaintiff’s] testimony, Dr.

Yuehuei noted [Plaintiff] was ambulating with

a cane on June 26, 2017 (Ex. B17F/7). In

addition, Dr. Keith Reinhardt noted on October

19, 2017 that [Plaintiff] was ambulating with

a cane (Ex. B13F/15). These records indicate

[Plaintiff] was already using a cane even

before the date he said it was allegedly

prescribed by Dr. Michalowicz.

Foremost, Suzanne Kontak, ANP-C from

South Shore Neurologic Associates noted on

December 21, 2016 that [Plaintiff] “bought a

cane in a thrift shop . . .” (Ex. B11F/8).

[Plaintiff] is completely untrustworthy.

(ALJ Decision, R. 21-22.) The Court finds the ALJ’s

“untrustworthy” assessment curious and not necessarily logical.

It addresses each of the ALJ’s contentions, in turn.

First, other than his initial question to Plaintiff,

i.e., whether Plaintiff was using a cane while a livery driver

(see Disability Hr’g Tr., R. 80), the ALJ did not meaningfully

engage in any follow-up inquiries, which could have assisted in

developing the record, especially if the ALJ had questions

regarding Plaintiff’s cane use. See, e.g., Jackson v. Kijakazi,

588 F. Supp. 3d 558, 577 (S.D.N.Y. 2022) (stating an ALJ has a

“duty to question the claimant adequately about any subjective

complaints and the impact of the claimant’s impairments on the

claimant’s functional capacity” (emphasis added; citations

omitted)). Second, as to the absence of any reference to cane use

in Plaintiff’s prison-medical-records: The ALJ fails to mention

what is referenced, i.e., at least at some point while

incarcerated, the Plaintiff was ambulating with a wheelchair. (See

R. 1581.) The use of a wheelchair would obviate the need to use

a cane and could explain why there was no mention of such cane use

in Plaintiff’s prison-medical-records.17 The wheelchair reference

17 Moreover, Plaintiff was placed in the prison’s medical housing

unit while incarcerated (see R. 1525); he also had several visits

provided relevant information which should have prompted

additional, specific inquiries into Plaintiff’s testimony

regarding his post-2018 cane use, especially if said cane use was

critical to the ALJ’s assessment of Plaintiff’s credibility. Yet,

as already discussed, the ALJ did not meaningfully pursue

questioning on this matter. Given the medical evidence, in

conjunction with the ALJ’s failure to robustly inquire about

Plaintiff’s cane use, the Court is dubious about the ALJ’s

assessment. Third, and relatedly, as to Plaintiff’s cane use prior

to the purported prescription for same by Dr. Michalowicz, the

Court does not find Plaintiff’s testimony about that prescription

contradicts the medical evidence regarding Plaintiff’s pre-2018

cane use. It should be of no moment that Plaintiff was using a

cane before receiving a prescription to do so or that he previously

purchased the cane of his own volition; importantly, there is no

indication that to use a cane, one is required to have a

prescription. Moreover, as early as December 2016, while

acknowledging Plaintiff bought a cane to use, the ANP-C also

advised Plaintiff to continue using the cane. (See R. 468, 471.)

Additionally, record evidence shows medical personnel consistently

to outside medical facilities (see, supra, 59); perhaps, he was on

bed rest. In the absence of any further record development, such

useful information is not available. Additional inquiry could

have helped explain the ALJ’s assessment and assisted this Court’s

review of same.

recording Plaintiff’s gait was antalgic, slow or unsteady, and

that he ambulated with a cane; similarly, there is medical evidence

showing Plaintiff also suffered from knee pain, which could further

explain his use of a cane when ambulating. At a minimum, this

evidence goes to “[a]ny measures plaintiff uses or has used to

relieve pain or other symptom”, one of seven considerations an ALJ

is to weigh in assessing a claimant’s subjective complaints,

especially regarding pain. Poceous, 2024 WL 3029197, at *10

(quoting 20 C.F.R. § 416.929(c)(3)); see also id. (“The ALJ’s

decision “must contain specific reasons for the finding on

credibility, supported by the evidence in the case record, and

must be sufficiently specific to make clear to the individual and

to any subsequent reviewers the weight the [ALJ] gave to the

individual’s statements and the reasons for that weight.” (quoting

SSR 96–7p, 1996 WL 374186, at *2; emphasis added)). In this

instance, the contradictory evidence to which the ALJ cites serves

more to highlight his cherry-picking of evidence rather than to

underscore purported spurious contentions in Plaintiff’s

testimony. (See, e.g., ALJ Decision, R. 21 (citing, by way of

example “Ex. B12F/3, 6, 19; B13F/68, etc.” as evidence that “d[id]

not support the use of a cane”).) Indeed, the ALJ’s apparent

reliance on his “gotcha” questioning about the cane-prescribing

doctor is troubling; the Court fails to understand how Plaintiff’s

response about the alleged 2018 prescription is contrary to the

evidence regarding his earlier use of the cane, which other medical

providers recognized and which one such provider recommended he

continue using. At bottom, the Court is unpersuaded the ALJ’s

line of inquiry formed a reliable basis for discrediting

Plaintiff’s veracity and, ultimately, determining he is not

disabled. See, e.g., Fernandez v. Astrue, No. 11-CV-3896, 2013 WL

1291284, at *18 (E.D.N.Y. Mar. 28, 2013) (“If the ALJ rejects [a

claimant’s] testimony after considering the objective medical

evidence and any other factors deemed relevant, he must explain

that decision with sufficient specificity to permit a reviewing

court to decide whether there are legitimate reasons for the ALJ’s

disbelief.” (quoting Correale-Englehart v. Astrue, 687 F. Supp. 2d

396, 435 (S.D.N.Y. 2010)); see also generally Castano v. Astrue,

650 F. Supp. 2d 270, 280 (E.D.N.Y. 2009) (“More fundamentally, the

procedure before the Social Security Administration is not

supposed to be adversarial, but, rather, inquisitorial. It is not

a game of ‘gotcha.’ The goal is not for the Commissioner to ‘win’

a finding of nondisability, but to fairly determine if a claimant

is disabled.” (citation omitted; emphasis added)). At bottom, the

ALJ has failed to “explain his reasoning in a way that permits the

court to ‘glean’ the basis for his credibility determination”,

thereby requiring a remand. See, e.g., Hamilton v. Saul, No.

20-CV-0457, 2021 WL 4407873, at *3 (E.D.N.Y. Sept. 27, 2021)

(remanding matter where, inter alia, in weighing testimony, ALJ

failed to “explain his reasoning in a way that permits the court

to ‘glean’ the basis for his credibility determination”): see also

Long v. Berryhill, No. 18-CV-1146, 2019 WL 1433077, at *3 (E.D.N.Y.

Mar. 29, 2019) (“[R]emand is appropriate where inadequacies in the

ALJ’s analysis frustrate meaningful review, such as when the ALJ

makes credibility determinations and draws inferences from the

record, yet fails to fully explain the basis for them[.]” (internal

citations omitted)).

-*-*-*-

Because it has determined remand is required in this

instance, “the Court need not and does not reach [the parties’]

remaining argument[s] . . . .” Kelly, 2024 WL 5120051, at *13

(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, 2024 WL 3029197, at *15

n.13 (declining to consider plaintiff’s further arguments in

support of remand upon finding procedural error by ALJ warranting

remand)).

III. Reassignment to Another ALJ

Whether a case should be remanded to a

different ALJ generally is a decision for the

Commissioner to make. Sutherland v. Barnhart,

322 F. Supp. 2d 282, 292 (E.D.N.Y. 2004).

However, courts have ordered the Commissioner

to reassign a case to a new ALJ on remand where

the ALJ’s conduct “g[a]ve[ ] rise to serious

concerns about the fundamental fairness of the

disability review process[.]” (Id.) In

determining whether remand to a new ALJ is

warranted, courts in this Circuit consider

whether there is: “(1) a clear indication that

the ALJ will not apply the appropriate legal

standard on remand; (2) a clearly manifested

bias or inappropriate hostility toward any

party; (3) a clearly apparent refusal to

consider portions of the testimony or evidence

favorable to a party, due to apparent

hostility to that party; [or] (4) a refusal to

weigh or consider evidence with impartiality,

due to apparent hostility to any party.” (Id.)

Roberto v. Saul, No. 20-CV-1923, 2021 WL 3912298, at *8 (E.D.N.Y.

Sept. 1, 2021).

In this instance, the Court is left with a strong

impression that the ALJ was biased against Plaintiff given the

ALJ’s persistent and questionable focus upon Plaintiff’s penal

history, the relevance of which, in determining whether Plaintiff

is disabled, the Court is hard-pressed to understand. Therefore,

the Commissioner is strongly urged to reassign this case to a

different ALJ upon remand.

[Remainder of page intentionally left blank.]

CONCLUSION

Accordingly, IT IS HEREBY ORDERED: (1) Plaintiff’s

Motion (ECF No. 15) is GRANTED; and (2) the Commissioner’s

Cross-Motion (ECF No. 20) is DENIED; this matter being REMANDED to

the Commissioner for a new hearing and decision; 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: July 31, 2025

Central Islip, New York