Howard v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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

FRANK J. HOWARD,

Plaintiff, MEMORANDUM & ORDER

21-CV-1020 (JS)

-against-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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

APPEARANCES

For Plaintiff: Daniel A. Osborn, Esq.

Osborn Law P.C.

43 West 43rd Street, Suite 131

New York, New York 10036

For Defendant: Scott C. Ackerman, Esq., and

Sergei Aden, 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 Frank J. Howard (“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 Social Security Disability Benefits by the

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

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

as the “Agency”.

Compl., ECF No. 1.) Pending before the Court are Plaintiff’s

Motion for Judgment on the Pleadings (the “Motion”), and the

Commissioner’s Cross-Motion for Judgment on the Pleadings (the

“Cross-Motion”). (See Motion, ECF No. 11; see also Support Memo,

ECF No. 11-1; Cross-Motion, ECF No. 14; Cross-Support Memo, ECF

No. 14-1; Reply, ECF No. 15.) For the following reasons,

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

is DENIED.

BACKGROUND2

I. Agency Procedural History

Plaintiff alleges his disability began on July 18, 2016

(hereafter, the “Onset Date”). (See Compl. ¶5.) On August 10,

2018, Plaintiff filed for disability insurance benefits. (R. 68,

149.) After Plaintiff’s claim was initially denied on November 2,

2018 (R. 10), he requested a hearing before an Administrative Law

Judge (“ALJ”), which was conducted on February 28, 2020 (hereafter,

the “Disability Hearing”). (R. 33.) Plaintiff was accompanied by

an attorney representative (R. 10, 33), and vocational expert

(“VE”) Michael Dorval testified at the Disability Hearing (R. 33,

59-66).

2 The background is derived from the Administrative Transcript

filed by the Commissioner on August 23, 2021. (See ECF No. 8.)

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 1960, Plaintiff is a high school graduate.

(R. 17, 36.) After graduating high school, Plaintiff served four

years in the U.S. Army. (R. 36.) Thereafter, Plaintiff worked

more than 30 years as a police officer with the Suffolk County

Police Department (“SCPD”) in its Marine Bureau. (R. 36-37, 46.)

In 2012, due to a 100% blockage of his lower anterior

descending artery, Plaintiff suffered a heart attack. (R. 43-44.)

While Plaintiff had a stent procedure, which opened the blockage,

the blockage caused significant irreversible damage to his heart.

(R. 44.) For example, thereafter, Plaintiff’s ejection fraction

(“EF”), a measurement of the percentage of blood leaving the heart

each time it squeezes, was well-below the normal range of between

50% and 70%,3 instead registering between 36% and 41%. (R.44-45.)

3 See, e.g., Mayo Clinic, Ejection Fraction: What does it

measure?, available at https://www.mayoclinic.org/tests-

procedures/ekg/expert-answers/ejection-fraction/faq-

20058286#:~:text=Ejection%20fraction%20is%20a%20measurement,The%

20heart%20squeezes%20and%20relaxes (last visited Aug. 14, 2025).

Plaintiff testified that, as a result, the demands of his job “was

getting hard for me.” (R. 46; see also id. at R. 47-48 (testifying

further to “having more and more problems doing” job tasks, such

as lifting patients into helicopters, which “was getting harder

and more difficult” for Plaintiff).) He retired from the SCPD in

2016, from which he receives a pension. (See, e.g., R. 40-41,

54.)

Since his heart attack, Plaintiff engages in a daily

cardio workout he learned in rehabilitation (hereafter, the

“cardio-rehab”), which workout does not include lifting weights.

(R. 48-49.) Plaintiff testified to suffering from an increased

feeling of fatigue, which has persisted since his retirement. (See

id.) Plaintiff further stated he could walk for approximately ten

minutes at a leisurely pace before needing a break. (R. 50.)

Similarly, Plaintiff is able to ride an exercise bicycle for five

to ten minutes at a time. (R. 51.) And, after about ten minutes

of standing, Plaintiff starts to get fatigued. (Id.) Likewise,

repetitive actions such as bending down and rising up cause

Plaintiff to “tire out quickly”. (Id.) Relatedly, Plaintiff

testified that his medications cause lightheadedness; therefore,

he must be careful with bending. Plaintiff asserts he is able to

comfortably lift ten pounds; lifting more than that fatigues him.

(R. 49.)

After retiring, from November 2016 through June 2018,

Plaintiff sporadically worked for a funeral home, filling in as a

pallbearer when the funeral home was short-staffed. (R. 42; see

also R. 200.) In doing so, Plaintiff was part of a group of six

to eight men who would carry a casket approximately ten to 20 feet,

between the hearse and funeral home or church, grasping the casket

for approximately five to ten minutes. (R. 200.) However,

Plaintiff testified he ceased filling in as a pallbearer because

it became too difficult for him. (R. 42.)

Plaintiff completed a function report in September 2018

(hereafter, the “Function Report”). (See R. 185-194.) In said

Function Report, among other things, Plaintiff self-reported

difficulty: lifting; standing; walking without fatigue; climbing

stairs; kneeling; and squatting. (R. 190, 194.) He reported his

daily activities included: walking the dog around the block;

cardio-rehab; taking a nap; eating; watching television; going on

the computer; and reading. (R. 185.) Plaintiff indicted he

prepares himself simple breakfasts and lunches and relies upon his

wife for cooking, especially for dinner. (R. 187.) Plaintiff

also reported: he does light housework; while not often, he may

shop for staples (e.g., milk, bread) if running low on them; but,

his wife performs the weekly shopping. (R. 188.) Additionally,

Plaintiff reported difficulty handling stress, which can cause

chest pains. (R. 192-193.) And, since his heart attack,

Plaintiff: needs help with major house repairs; sleeps a great

deal during the day; and is more easily tired by his daily

activities. (R. 186, 188, 194.)

B. Relevant Medical History

1. Plaintiff’s Providers

Following the 2012 insertion of his stent, Plaintiff had

routine follow-up care with Stony Brook Internists and

cardiologist Anil Mani, M.D., for medication management and

periodic testing. (See R. 263-507.)

Testing in early September 2016 revealed Plaintiff had

left ventricular ejection fraction (“LVEF”4)of 36% and moderately

to severely reduced global left ventricular systolic pressures.

(R. 297-298.) The provider noted Plaintiff’s “EF does improve

with exercise as noticed on his stress nuclear study.” (R. 298.)

4

Left ventricular ejection fraction (LVEF) is

a fundamental measure of left ventricular

systolic function, reflecting the percentage

of blood ejected from the ventricle with each

heartbeat. LVEF serves as a critical marker

of myocardial contractility and is among the

most reliable predictors of cardiovascular

outcomes across all ages and genders. LVEF is

crucial in diagnosing and managing a wide

range of cardiac conditions, including

ischemic heart disease, valvular disorders,

cardiomyopathies, and systemic illnesses with

cardiac involvement.

Pirbhat Shams, Amandeep Goyal, Amgad N. Makaryus, Left Ventricular

Ejection Fraction. (Aug. 26, 2025, 12:27 PM),

https://www.ncbi.nlm.nih.gov/books/NBK459131/.

July 2017 testing revealed, inter alia, Plaintiff had:

a large severe mid-to-distal anterior, apical, and apical

anteroseptal infarction; and, an LVEF of 41%. (R. 540-541, 543.)

That same month, Plaintiff reported episodic dizziness when

getting up from bending his head down (R. 467); his doctor

attributed this to Plaintiff’s lower blood pressure caused by his

then-current medications, “which [we]re at a low-dose.” (R. 470.)

The Doctor also recorded Plaintiff had suffered an episode of

vertigo, which lasted three days, but which resolved without

incident. (R. 467.)

At his December 2017 follow-up visit with Dr. Mani,

Plaintiff reported he was “doing well with no complaints of chest

pain or shortness of breath” and “remain[ed] active going to the

gym”, but he “does get occasional lightheadedness with positional

change.” (R. 271.) In his impressions, the Doctor observed:

Plaintiff had an “above average exercise performance” in his stress

test, during which Plaintiff did not experience chest pain; and,

while Plaintiff “does have a very large defect consistent with his

LAD infarct”, there was “no evidence of ischemia”. (R. 275.) At

that time, Plaintiff’s LVEF was 41%. (See id.)

At a bi-yearly check-up in March 2019, Plaintiff

reported feeling fatigued, telling cardiologist Dr. Jordan Katz,

also of Stony Brook Internists, he “always feels tired” and that,

while “he is oaky in the AM after waking up”, he “has to take a

nap later during the day.” (R. 538.) Otherwise, Plaintiff

reported feeling well and, inter alia, “go[ing] to the gym on a

daily basis and work[ing] out for 40 minutes using the treadmill,

stationary bicycle[,] and elliptical machine.” (Id.) Dr. Katz

theorized Plaintiff’s fatigue was “[l]ikely multifactorial in

origin” considering Plaintiff’s prior myocardial infarction with

reduced left ventricular systolic function; or, Plaintiff’s

fatigue could be caused by his medications. (R. 543.)

Nonetheless, considering Plaintiff’s history of myocardial

infarction, Dr. Katz continued Plaintiff on his then-current

medicine regime. (See id.)

At his September 2019 follow-up visit with Dr. Katz,

Plaintiff stated he had been “feeling well” and was “without any

acute complaints”. (R. 527.) Again, Plaintiff reported going to

the gym “[five] days a week” and working out for 40 minutes at a

time “without any problems”. (Id.) He also told the Doctor he

“usually takes a 30-60 minute nap after working out”. (Id.) Dr.

Katz noted one of Plaintiff’s problems was fatigue. (R. 528.)

Cardiovascular findings for Plaintiff were normal. (R. 529.) The

Doctor continued Plaintiff on his then-current cardiac

medications. (R. 531.)

In March 2020, Dr. Katz completed a cardiac impairment

questionnaire regarding Plaintiff (hereafter, the

“Questionnaire”). (R. 555-557.) In said Questionnaire, Dr. Katz

indicated: his treatment of Plaintiff began March 12, 2019 and he

saw Plaintiff every six months; Plaintiff has heart problems, and

his prognosis is fair; Plaintiff’s symptoms include chest pain,

dizziness, and fatigue; Plaintiff suffers from angina which: is

infrequent, is sometimes precipitated by stress, lasts a “few

minutes”, and may occur twice monthly; Plaintiff suffers from

ischemic heart disease; and, Plaintiff’s impairments: can be

expected to last at least 12 months, and would prevent Plaintiff

from retaining the ability to work in a competitive environment—

even in a sedentary occupation—on a full-time basis. (R. 555-556.)

Dr. Katz’s opinion about Plaintiff’s retained functional ability

to work was based upon Plaintiff’s history of fatigue and

exertional intolerance. (R. 557.) In addition, Dr. Katz opined,

due to his impairments, Plaintiff: would need to rest at

unpredictable intervals during an eight-hour workday,

three-to-four times per day, with each rest period lasting 15-to-20

minutes; experience “good days” and “bad days”; and, would likely

be absent from work more than three times per month. (-Id-.-)

Further, Dr. Katz indicated Plaintiff was limited to: being able

to sit, stand, and/or walk, for no more than one hour in an eight-

hour workday; only occasionally being able to lift and carry items

weighing between one-and-five pounds, and six-to-ten pounds; and,

never being able to lift and carry items weighing between 11-and-20

pounds, and 21-to-50 pounds. (Id.) Dr. Katz found Plaintiff not

to be a malingerer. (R. 556.)

2. Consultants

In addition to his visits with his doctors at Stony Brook

Internists, Plaintiff also had an October 2018 physical

examination by an Agency-retained consultative doctor, Kanista

Basnayake, M.D., a family medicine practitioner. (See R. 515-518.)

Dr. Basnayake reported Plaintiff complaining of “pain with

exterior and stress”, which pain recedes with rest, and occasional

shortness of breath. (R. 515.) There was no indication Plaintiff

also complained of fatigue. The Doctor’s diagnoses included

Plaintiff’s history of a 2012 heart attack with two stents and

“mild” decreased visual acuity in Plaintiff’s left eye; she

described Plaintiff’s prognosis as “stable”. (R. 518.) Dr.

Basnayake opined Plaintiff was restricted from activities both

“requiring fine visual acuity due to mild decreased visual acuity

in the left eye” and “requiring mild or greater exertion due to

cardiac condition.” (R. 518).

On October 31, 2018, after reviewing Plaintiff’s

then-available medical records and Dr. Basnayake’s opinion,

I. Seok, M.D., a state agency medical consultant who did not

examine Plaintiff, determined Plaintiff could perform light

exertional level work. (See R. 77.) Among other things, the

medical consultant concluded Plaintiff was able to: occasionally

lift 20 pounds; frequently lift ten pounds; and, stand, walk or

sit six hours in an eight-hour workday. (R. 74.) Dr. Seok

determined Plaintiff had no other postural, manipulative, visual,

communicative, or environmental limitations. (R. 75). He found,

given Plaintiff’s cardiac history, Plaintiff’s residual functional

capacity (“RFC”) “is limited to light work on a sustained basis”.

(Id.) On February 12, 2019, Robert Hughes, M.D., another agency

medical consultant who did not examine Plaintiff, determined that

the “evidence supports [the] RFC in [the] file”. (R. 521).

C. 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 medium exertional level. (R. 60.) The VE

testified the hypothetical individual would be able to perform

Plaintiff’s past work as a police officer. (See id.)

In the second hypothetical, the same presumptions were

presented to the VE with the additional consideration that the

hypothetical individual had the RFC to perform a full range of

light work. (Id.) Under that scenario, the VE testified a

hypothetical individual could not perform the work of a police

officer. (See id.) Instead, because the work of a police officer

carried transferable skills to light work, the VE identified the

positions of a security guard, gate guard, or a utility

investigator (see R. 61.), and explained the

police-officer-related skillsets that were transferable to those

identified jobs (see R. 62).

In the third hypothetical, which began with the same

initial presumptions, the ALJ asked the VE to consider a

hypothetical individual limited to sedentary work and whether

there were jobs available for such individual. (R. 62.) The VE

answered in the affirmative that work as a police officer carries

transferable skills to sedentary jobs, identifying: a dispatcher

for a security company or police department; a collection clerk;

and a complaint clerk, a/k/a a customer service clerk. (R. 63.)

Finally, as to any of the proposed three hypotheticals,

i.e., regarding medium, light, and sedentary work levels, the ALJ

asked the VE:

[I]f I was to add the further limitation to

any of those hypotheticals that the individual

was further limited to work that needs to

allow for unscheduled breaks that would exceed

15% of a work schedule, would such an

individual still be able to perform the work

as a [p]olice [o]fficer, or any of the jobs

you cited, or any other jobs?

(R. 65.) The VE testified such an individual would not be able to

maintain any competitive work in the economy. (See id.)

III. The ALJ Decision

In an April 8, 2020 decision, the ALJ found Plaintiff

was not disabled (hereafter, the “ALJ Decision”). (R. 10-19; see

also id. at 20-22 (List of Exs.).) More specifically, while the

ALJ found Plaintiff suffered from the severe impairment of coronary

artery disease status post myocardial infarction (R. 13), he also

found said impairment did not meet or medically equal “the severity

of one of the listed impairments [found] in 20 CFR Part 404,

Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1552[,] and

404.1526)” (id. (bold emphasis omitted)). Further, upon the record

presented, the ALJ found Plaintiff maintained an RFC to perform

light work “as defined in 20 CFR 404.1567(b)”. (Id.) 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 404.1529 and SSR

16-3p. [He] also considered the medical

opinion(s) and prior administrative medical

finding(s) in accordance with the requirements

of 20 CFR 404.1520c.

(Id. at 13-14.) 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 . . . 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 . . . impairment(s) that could

reasonably be expected to produce the claimant’s pain or other

symptoms has been shown, [the ALJ] must evaluate the intensity,

persistence, and limiting effects of the claimant’s symptoms to

determine the extent to which they limit the claimant’s work-

related activities.” (Id. at 14.) 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, [the

ALJ] must consider other evidence in the record to determine if

the claimant’s symptoms limit the ability to do work-related

activities.” (Id. (emphasis added).)

The ALJ discounted Plaintiff’s statements regarding the

intensity, persistence, and limiting effects of his symptoms, as

he found “they are inconsistent because while the treatment records

suggest some exertional limitations, the treatment record and

submissions strongly demonstrate an excellent recovery and

response to treatment for coronary artery disease.” (R. 14-15.)

The ALJ proceeded to highlight Plaintiff returned to “full duty”

work as a police officer and, after his 2016 retirement, which was

Plaintiff’s alleged Onset Date of disability, Plaintiff

sporadically worked as a pallbearer. (R. 15.) According to the

ALJ:

Treatment records with cardiology specialist

. . . include repeated references that

[Plaintiff] was doing well, had no complaints

of chest pain or shortness of breath,

exercising regularly and had unremarkable

physical exams and diagnostic tests with

stable results. Further, submissions from

[Plaintiff] detail a wide variety of daily

activities, all of which fail to support [his]

allegations of disability.

(Id. (citing Pl.’s Sept. 2018 Function Report (R. 185-194)).)

While the ALJ proceeded to highlight statements that Plaintiff

“reported no change in effort tolerance” and was “‘doing well’

with no complaints of chest pain or shortness of breath and

exercising regularly” (R. 15 (re: Feb. 2017 records, and July 2017

records); see also R. 16 (re: Dec. 2017 records, April 2018

records, Mar. 2019 records, and Sept. 2019 records)), he also

acknowledged Plaintiff “indicated some fatigue with exertion”

notwithstanding “that he continued to go to the gym”. (R. 15; see

also R. 16 (re: Oct. 2018 records (Plaintiff reporting “tiredness

with exertion, which has been the case since his myocardial

infarction six years prior” and “he goes to the gym and performs

cardio-exercise to a similar extent as always, but is tired and

naps thereafter”), Mar. 2019 records (Plaintiff reporting “he

always feels tired . . . and takes naps during the day”), and Sept.

2019 records.)

In reaching his RFC determination, the ALJ found

unpersuasive the March 2020 opinion of Dr. Katz, who opined

Plaintiff would be absent three times per month because of his

impairments and his sitting, standing, walking, and weightlifting

limitations. (R. 16.) According to the ALJ:

The opinion offered is in stark contrast to a

long history of unremarkable physical exams,

treatment records with repeated references

that [Plaintiff] was doing well with no

complaints of chest pain or shortness of

breath and daily, regular exercise over an

extended period that includes forty minutes of

cardiovascular exercise without any problems

and an expansive range of daily activities.

The opinion offered is inconsistent with

[Plaintiff’s] return to work as a police

officer at “full duty” until 2016 following

the 2012 heart attack.

(R. 16.) Likewise, the ALJ found unpersuasive the “mild or greater

exertion” exertional limitations assessed by the consultative

doctor, Dr. Basnayake, since they were “vague and nonspecific,

inconsistent with unremarkable cardiology exams over an extended

period, not supported by treatment records that note regular

exercise with repeated references that [Plaintiff] feels well and

submissions reporting a wide variety of daily activities, which

include no problems with personal care, light household cleaning,

and traveling alone.” (R. 17.) Conversely, the ALJ found the

opinion of the non-examining consultant, -i.-e-.-, that Plaintiff

retained “a light exertional capacity”, to be persuasive since it

was “consistent with the medical record as a whole, including all

of the cardiology treatment records that include unremarkable

exams and repeated references that [Plaintiff] was doing well.”

(Id.)

Upon the record presented, the ALJ determined that, due

to his impairment, Plaintiff could not perform his past relevant,

more exertional work as a police officer. (R. 17.) However, the

ALJ also concluded Plaintiff could perform other jobs in the local

and national economy, e.g., security officer; gate guard; and

utility investigator; his determination was based, in part, upon

the testimony of the VE. (R. 18.) Thus, ultimately, he found

Plaintiff “not disabled”. (R. 19.)

IV. Post-ALJ Decision

A. Subsequent Procedural History

On January 26, 2021, the Agency’s Appeals Council denied

Plaintiff’s request for review; therefore, the ALJ Decision became

the final decision of the Commissioner. (R. 1-3.)

On February 25, 2021, Plaintiff initiated the instant

action. (See Compl.) Thereafter, on February 21, 2022, Plaintiff

moved for judgment on the pleadings, requesting the case be

remanded to the Commissioner. (See Support Memo at 14.) On May

16, 2022, the Commissioner crossed-moved for judgment on the

pleadings, asserting the ALJ Decision should be affirmed and this

action be dismissed. (See Cross-Support Memo at 21.)

B. The Parties’ Positions

Plaintiff puts forth one overarching argument in support

of his Motion: The ALJ erred in his evaluation of the medical

opinion evidence. (See Support Memo at 10-14.) More specifically,

Plaintiff contends there was not substantial evidence to support

the ALJ’s conclusions. (See id. at 11-12; see also Reply at 2-3.)

Plaintiff also maintains the ALJ did not properly apply the new

regulations because he failed to explain how he considered the

supportability and consistency factors when assessing the medical

opinions in the record. (See id. at 12.) Further, Plaintiff

contends the ALJ mischaracterized the evidence, thereby warranting

remand. (See id. at 12-13; see also Reply at 3 (arguing, inter

alia, because ALJ discounted Plaintiff’s credibility, ALJ was

required to explain said discounting with sufficient specificity

to enable the reviewing court to decide whether there were

legitimate reasons for such discounting and whether ALJ’s decision

was supported by substantial evidence).)

In response, the Commissioner cross-moves for judgment

on the pleadings pursuant to Rule 12(c) asserting: the ALJ Decision

should be affirmed; Plaintiff’s Motion should be denied; and,

thereafter, this action should be dismissed. (See Cross-Support

Memo at 21.) In opposition to Plaintiff’s Motion, the Commissioner

asserts “substantial evidence supports the ALJ’s evaluation of the

opinion evidence in formulating the RFC findings”; therefore,

Plaintiff’s arguments to the contrary are without merit.” (Id. at

13.)

DISCUSSION

I. Standard of Review

In Brown v. Commissioner of Social Security, 708 F. Supp.

3d 234 (E.D.N.Y. 2023), Honorable Kiyo A. Matsumoto of this

District thoroughly and succinctly articulated the standard the

Commissioner must follow in determining a claim of disability, see

id. at 241-42, as well as the standard a reviewing district court

must utilize when a claimant challenges the Commissioner’s

determination that the claimant is not disabled, see id. at 242-43.

This Court adopts same and incorporates by reference those

standards herein.

Generally speaking, in reviewing a final decision of the

Commissioner, a district court must “conduct a plenary review of

the administrative record to determine if there is substantial

evidence, considering the record as a whole, to support the

Commissioner’s decision and if the correct legal standards have

been applied.” Rucker v. Kijakazi, 48 F.4th 86, 90–91 (2d Cir.

2022) (quoting Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir.

2019)). District courts will overturn an ALJ’s decision only if

the ALJ applied an incorrect legal standard, or if the ALJ’s ruling

was not supported by substantial evidence. See id. (citing

Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)).

“[S]ubstantial evidence . . . means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”

Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting

Richardson v. Perales, 402 U.S. 389, 401 (1971)).

Additionally,

[f]or claims filed on or after March 27, 2017,

[like here,] the ALJ “will not defer or give

any specific evidentiary weight, including

controlling weight, to any medical opinion(s)

or prior administrative medical finding(s),

including those from your medical sources.”

20 C.F.R. §§ 404.1520c(a), 416.920c(a).

Instead, the ALJ will evaluate the

persuasiveness of medical opinions and prior

administrative medical findings using the

following factors: (1) supportability, (2)

consistency, (3) relationship with the

claimant, (4) specialization, and (5) other

factors that tend to support or contradict a

medical opinion or prior administrative

medical finding. See id. §§ 404.1520c(c),

416.920c(c). Of those, the “factors of

supportability . . . and consistency . . . are

the most important factors.” Id.

§§ 404.1520c(b)(2), 416.920c(b)(2); see also

Loucks v. Kijakazi, No. 21-1749, 2022 WL

2189293, at *1 (2d Cir. June 17, 2022).

An ALJ is specifically required to

“explain how [he or she] considered the

supportability and consistency factors” for a

medical opinion. 20 C.F.R. §§ 404.1520c

(b)(2), 416.920c(b)(2). With respect to

supportability, “[t]he more relevant the

objective medical evidence and supporting

explanations presented by a medical source are

to support his or her medical opinion(s) or

prior administrative medical finding(s), the

more persuasive the medical opinions or prior

administrative medical finding(s) will be.”

Id. §§ 404.1520c(c)(1), 416.920c(c)(1). With

respect to consistency, “[t]he more consistent

a medical opinion(s) or prior administrative

medical finding(s) is with the evidence from

other medical and nonmedical sources in the

claim, the more persuasive the medical

opinion(s) or prior administrative medical

finding(s) will be.” Id. §§ 404.1520c(c)(2),

416.920c(c)(2).

Lena Nicole H. v. Comm’r of Soc. Sec., No. 23-CV-0826, 2024 WL

4133819, at *5 (N.D.N.Y. July 30, 2024); see also, e.g., Michelle

C. v. Comm’r of Soc. Sec., 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). The most relevant factors in

determining the persuasiveness of medical findings are the

supportability and consistency factors. See Acheampong v. Comm’r

of Soc. Sec., 564 F. Supp. 3d 261, 266 (E.D.N.Y. 2021); see also

Navedo v. Kijakazi, 616 F. Supp. 3d 332, 343 (S.D.N.Y. 2022)

(“Under the new regulations, the ALJ must ‘explain how he

considered’ both the supportability and consistency factors, as

they are ‘the most important factors.’” (quoting 20 C.F.R. §§

404.1520c(b)(2), 416.1520c(b)(2) (emphasis added); further

citation omitted); Keli Ann D. v. Comm’r of Soc. Sec., No.

23-CV-0765, 2024 WL 3493274, at *5 (N.D.N.Y. July 22, 2024) (“The

revised regulations for evaluating opinion evidence place

substantial emphasis on both supportability and consistency and

require the ALJ to explain the analysis of each of those factors.”

(emphasis added)). The failure to properly consider and apply the

supportability and consistency factors are grounds for remand.

See Schonfeld v. Comm’r of Soc. Sec., No. 21-CV-6053, 2023 WL

2625833, at *13 (S.D.N.Y Mar. 24, 2023); Navedo, 616 F. Supp. 3d

at 344 (same; collecting cases).

While the treating physician rule is no longer in effect,

courts in this district have held the factors under the new

regulations “are very similar to the analysis under the old

treating physician rule.” Velasquez v. Kijakazi, No. 19-CV-9303,

2021 WL 4392986, at *20 (S.D.N.Y. Sept. 24, 2021) (collecting

cases); Navedo, 616 F. Supp. 3d at 344 (same; quoting Velasquez);

Cuevas v. Comm’r of Soc. Sec., No. 20-CV-0502, 2021 WL 363682, at

*9 (S.D.N.Y. Jan. 29, 2021) (“[T]he essence of the rule remains

the same, and the factors to be considered in weighing the various

medical opinions in a given claimant’s medical history are

substantially similar.”). For example, when an ALJ considers the

medical source’s relationship with the claimant, the ALJ must

consider: the length of the treating relationship; the frequency

of examinations; the purpose of the treatment relationship; the

extent of the treatment relationship; and the examining

relationship. See 20 C.F.R. § 1520c(c)(3)(i)-(v).

In reviewing the Commissioner’s decision:

“[t]he court shall have power to enter, upon

the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing

the decision of the Commissioner of Social

Security, with or without remanding the cause

for a rehearing.” 42 U.S.C. § 405(g). Remand

is warranted where “‘there are gaps in the

administrative record or the ALJ has applied

an improper legal standard’” and where

“further findings or explanation will clarify

the rationale for the ALJ’s decision.”

Coleson v. Comm’r of Soc. Sec., No.

18-CV-02862, 2020 WL 1989280, at *3 (E.D.N.Y.

Apr. 26, 2020) (quoting Rosa v. Callahan, 168

F.3d 72, 82-83 (2d Cir. 1999)).

Blowe v. Comm’r of Soc. Sec., No. 19-CV-2658, 2020 WL 3129062, at

*4 (E.D.N.Y. June 12, 2020); see also Brown, 708 F. Supp. 3d at

243 (“Remand is particularly appropriate where further findings or

explanation will clarify the rationale for the ALJ’s decision.”

(citing Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)).

II. The Instant Case

Having thoroughly reviewed the record presented, the

Court agrees with Plaintiff that ALJ’s RFC assessment is not

supported by substantial evidence. Rather, the ALJ relied upon

the opinion of a non-examining consultant, over the opinions of

Plaintiff’s doctor and an examining consultant physician, in

determining Plaintiff is not disabled. Further, the ALJ

mischaracterizing Plaintiff’s daily activities, which, in turn,

improperly influenced his consideration of Plaintiff’s subjective

complaints of fatigue, leading to a questionable RFC

determination. In this instance, these issues necessitate

remanding the case to the Agency.5 See, e.g., Rivera v. Comm’n of

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

e.g., the ALJ’s failure to consider the entirety of the VE’s

testimony, i.e., that where the hypothetical individual would be

Soc. Sec., No. 19-CV-4630, 2020 WL 8167136, at *14 (S.D.N.Y. Dec.

30, 2020), report and recommendation adopted, 2021 WL 134945

(S.D.N.Y. Jan. 14, 2021); see also Brown, 708 F. Supp. 3d at 243.

A. Reliance on Non-Examining Consultant

This Court has recognized “the written reports of

medical advisors who have not personally examined the claimant

deserve little weight in the overall evaluation of disability.”

off-task more than 15% of a work schedule, such individual would

be unable to maintain a full-time job. (Cf. R. 65 (VE’s testimony

regarding the effect of being off-task greater than 15% of work

schedule), with R. 18 (portion of ALJ Decision relying upon VE’s

testimony, which fails to address VE’s testimony regarding effect

of being off-task to availability of jobs).)

Where, as here, the VE’s testimony is

essential to a finding of disability, failure

to address the VE’s determination requires

remand, and the ALJ, at a minimum, must

articulate the reasons for his decision not to

follow the VE’s determination that Plaintiff

would not be able to perform any work in the

national economy if []he needed to take

unscheduled rest breaks. While it may be that

the ALJ presented the final hypothetical to

the VE despite the ALJ’s disbelief that

Plaintiff, in fact, required such unscheduled

rest breaks, the ALJ’s failure to explain as

much requires remand.

Ball v. Astrue, 755 F.Supp.2d 452, 466–67 (W.D.N.Y. 2010) (citing

Connor v. Shalala, 900 F. Supp. 994, 1003 (N.D. Ill. 1995)

(remanding case where ALJ failed to consider entirety of VE’s

testimony)); see also, e.g., Hatcher v. Comm’n of Soc. Sec., No.

15-CV-3282, 2017 WL 1323747, at *12 (E.D.N.Y. Mar. 22, 2017);

Foster v. Berryhill, No. 16-CV-5541, 2017 WL 3129801, at *5-6

(S.D.N.Y. July 21, 2017). However, having determined remand is

warranted for other reasons, the Court declines to address this

issue further.

Armstead v. Comm’r of Soc. Sec., No. 20-CV-2841, 2024 WL 5077582,

at *15 (E.D.N.Y. Dec. 11, 2024); 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). Indeed, “it is

well-settled that without the support of an opinion by an expert

who actually examined Plaintiff, the non-examining doctor’s

opinion cannot constitute substantial evidence supporting an RFC

determination.” Poceous v. Comm’r of Soc. Sec., No. 20-CV-4870,

2024 WL 3029197, at *14 (E.D.N.Y. Jun. 17, 2024) (citation modified

and citation omitted)).

Here, the ALJ rejected as unpersuasive the opinions of

Dr. Katz, Plaintiff’s cardiologist, and Dr. Basnayake, an

examining consultant physician. (See ALJ Decision, R. 16-17.)

Instead, he found persuasive the opinion of a non-examining medical

consultant.6 (See id. at R. 17.) However, in the absence of an

6 There is an additional issue with the ALJ’s reliance on the

opinion of the medical consultant. The ALJ referred to a single

medical consultant, but then cited to two different evaluations:

one by Dr. Seok (cited as Ex. 2A in the ALJ Decision) and another

by Dr. Hughes (cited as Ex. 8F in the ALJ Decision). The ALJ

proceeds to baldly claim both “opinions are consistent with the

medical record as a whole” and then “finds the [unidentified,

single] opinion offered persuasive.” (R. 17.) The Court is

perplexed; to which opinion does the ALJ refer? Moreover, in the

subsequent opinion by Dr. Hughes, while the non-examining

consultant stated the “evidence supports [the] RFC in [the] file”

(R. 521), he further included the additional remark: “vocational:

sed. RFC will allow”. (Id.) The Commissioner concedes the

“precise meaning of this statement” is “not entirely clear.”

(Cross-Support Memo at 9 n.5. (emphasis added).) The Commissioner

proffers, “[g]iven the context, it likely refers to a potential

opinion of an expert who actually examined Plaintiff, there is no

substantial evidence supporting the ALJ’s RFC determination. See

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

(E.D.N.Y. Mar. 25, 2024) (“[C]ourts 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.” (internal quotation marks

omitted)); Fintz v. Kijakazi, No. 22-CV-0337, 2023 WL 2974132, at

*6 (E.D.N.Y. Apr. 15, 2023) (“The opinion of a non-examining

physician cannot constitute substantial evidence on its own and as

such should not be heavily relied upon by an ALJ.”). Accordingly,

the ALJ erred in relying upon the medical consultant’s opinion in

making his RFC assessment, thereby warranting remand.

B. Mischaracterization of Evidence

Plaintiff argues:

[T]he Commissioner does not appear to

dispute that the ALJ mischaracterized some of

the evidence. Instead, the Commissioner

contends that the ALJ was not required to

accept [Plaintiff]’s testimony and the ALJ,

applying the factors set out in 20 C.F.R. §

finding of disability via the grid rules if Plaintiff were limited

to sedentary work.” (Id. (stating further that “neither of the

state agency consultants found Plaintiff was limited to sedentary

work”) (emphasis added).) The Commissioner’s post-ALJ Decision

supposition is insufficient. See, e.g., Poceous, 2024 WL 3029197,

at *9 (rejecting Commissioner’s reliance on post hoc

rationalization of the record evidence). It is for the ALJ to

adequately explain his decision, including reconciling

inconsistencies upon which he relies. As discussed herein, the

ALJ failed to do so, thereby necessitating remand.

404.1529, found [Plaintiff]’s testimony not

credible. However, if the ALJ discounted

[Plaintiff]’s credibility, the ALJ was

required to “explain the decision to reject

[Plaintiff’s] testimony with sufficient

specificity to enable the [reviewing] Court to

decide whether there are legitimate reasons

for the ALJ’s disbelief and whether [the

ALJ’s] decision is supported by substantial

evidence.” Here, the ALJ did not do that.

(Reply at 3 (first citing Cross-Support Memo at 20; then quoting

Calzada v. Astrue, 753 F. Supp. 2d 250, 280 (S.D.N.Y. 2010).) The

Court agrees. 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, [a 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.

To begin, as a basis for disregarding Plaintiff’s

evolving claim of fatigue, and the persistent and limiting effect

of said fatigue, the ALJ highlighted Plaintiff “returned to ‘full

duty’ work” after his 2012 heart attack and stent insertion. (R.

15.) While that may add support to the conclusion Plaintiff had

an excellent recovery from his 2012 heart attack, as the ALJ stated

(see id. at R.15-16), it does not automatically negate Plaintiff’s

escalating claims of fatigue. Rather, as the evidence shows,

Plaintiff’s complaints of being fatigued did not begin until after

his Onset Date, which was also after he retired from the SCPD.

Therefore, the ALJ’s reliance on Plaintiff’s return to work as

weighing against a finding of disability is misplaced.

Continuing, it would not be unreasonable for the nature

and extent of Plaintiff’s fatigue to evolve, i.e., intensify or

worsened, over time. Indeed, it appears, based upon Plaintiff’s

testimony and later-dated notes in various medical records, that

this is what occurred. Yet, in the ALJ Decision, the ALJ glosses

over the progression of Plaintiff’s complaints of fatigue.

However, an 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.” Poceous, 2024 WL 3029197, at *10 (quoting SSR 96–7p,

1996 WL 374186, at *2; emphasis added). Since the ALJ has failed

to do so as to Plaintiff’s escalating complaints of fatigue, this

Court’s review of the ALJ Decision is impeded.

Further, to the extent the ALJ relies upon Plaintiff’s

daily activities of living to support his determination of non-

disability, that reliance is unavailing. The ALJ wrote:

“[S]ubmissions from [Plaintiff] detail a wide variety of daily

activities, all of which fail to support [Plaintiff’s] allegations

of disability.” (R. 15 (citing Function Report).) Plaintiff’s

activities of daily living include: being able to independently

bathe and dress; his 40-minute cardio-rehab, after which he is

tired; walking the family dog; watching television, reading, and

using the computer; performing various light housekeeping chores;

preparing simple meals for breakfast and lunch; and, occasionally

shopping. (R. 14.) Plaintiff also reported hobbies of playing

the bagpipes and going to car shows, as well as socializing. (See

id.) However, the ALJ did not explain why said activities support

the finding of an RFC for light work. Absent such an explanation,

the Court is frustrated in understanding how any of these

activities overcome Plaintiff’s claims of fatigue, which fatigue

Plaintiff testified has worsened since 2018, with Plaintiff taking

more naps and for longer periods of time. (R. 56-57; see also

R. 55.) Nor, for the same reason, is it clear to the Court how

these daily activities of life have any relevance to Plaintiff’s

ability to function in a work setting. See, e.g., Poceous, 2024

WL 3029197, at *11-12 (discussing claimant’s daily activities;

recognizing daily activities do “not necessarily translate into

being able to engage in work-related activities”; collecting

cases); see also Mortellaro v. Comm’n of Soc. Sec., No. 19-CV-4868,

2022 WL 900595, at *12-13 (E.D.N.Y. Mar. 28, 2022) (in absence of

adequate explanation, finding unpersuasive ALJ’s reliance on

claimant’s generic daily activities as basis to reject treating

physician’s limitations) (collecting cases). Rather, what is

presented is the ALJ repeatedly highlighting Plaintiff’s having

unremarkable physical exams during which he reported feeling well

and denying any chest pain or dizziness, coupled with simply

acknowledging Plaintiff’s also reporting being increasingly

fatigued. (See R. 15-16.) Certainly, the two scenarios can

coexist; it is not necessarily inconsistent to both engage in

regular exercise, especially as advised by one’s doctor for

cardio-rehab purposed, and to experience fatigue, which, over time

and for various reasons, may occur with more intensity and

frequency. See, e.g., Cabibi v. Colvin, 50 F. Supp. 3d 213, 238

(E.D.N.Y. 2014) (“[I]t is well-settled that the performance of

basic daily activities does not necessarily contradict allegations

of disability, as people should not be penalized for enduring the

pain of their disability in order to care for themselves” (internal

quotation and citations omitted)); see also id. at 239 (finding,

where ALJ’s decision lacked specificity and failed to meet Agency

requirements for evaluating the credibility of a claimant’s

subjective complaints, remand was required). And, while the record

evidence shows Plaintiff regularly exercised, it also includes

testimony from Plaintiff that his 40-minute cardio-rehab routine

consisted of various segments, which he took slowly, e.g., using

the treadmill and an exercise bicycle. (R. 50-51.) However, the

ALJ failed to discuss this nuance in Plaintiff’s exercise regime;

thus, without more, the Court unable to understand the ALJ’s

rationale in making his RFC determination and, in turn, his

disability decision. Compare, e.g., Lawrence v. Comm’n of Soc.

Sec., No. 18-CV-12317, 2020 WL 8815492, at *12 (S.D.N.Y. June 10,

2020) (finding ALJ’s characterization of claimant’s daily

activities flawed because ALJ failed to consider the limitations

on said activities, which limitations claimant included in

function report cited by ALJ), report and recommendation adopted,

2020 WL 8815488 (S.D.N.Y. June 29, 2020). 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)). Hence, remand is required. See Cichocki, 729 F.3d at

177.

-*-*-*-

Because it has determined remand is required in this

instance, “the Court need not and does not reach [the parties’]

remaining argument[s] . . . .” Kelly v. Comm’r of Soc. Sec., No.

20-CV-5318, 2024 WL 5120051, *13 (E.D.N.Y. Dec. 16, 2024) (quoting

Rowe v. Berryhill, No. 17-CV-0208, 2018 WL 4233702, at *5 (W.D.N.Y.

Sept. 6, 2018); further citing Keli Ann D. v. Comm’r of Soc. Sec.,

No. 23-CV-0765, 2024 WL 3493274, at *7 (N.D.N.Y. July 22, 2024)

(same; quoting Rowe); Poceous, 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)).

CONCLUSION

Accordingly, IT IS HEREBY ORDERED: (1) Plaintiff’s

Motion (ECF No. 11) is GRANTED; and (2) the Commissioner’s

Cross-Motion (ECF No. 14) 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: September 8, 2025

Central Islip, New York