# Persad v. Commissioner of Social Security

> District Court, E.D. New York · July 31, 2025

URL: https://www.frixlaw.com/law-library/cases/11112545

## Case

- **Court:** District Court, E.D. New York
- **Decided:** July 31, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11112545

## How later opinions describe it (automated extraction)

- noting that a treating physician’s opinion is not controlling when contradicted “by other substantial evidence in the record”
- finding remand “particularly appropriate” where ALJ failed to obtain adequate information from treating physicians and potentially relevant information from other doctors

## Opinion text

UNITED STATES DISTRICT COURT 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11112545. Public record. Not legal advice.