# Howard v. Commissioner of Social Security

> District Court, E.D. New York · September 8, 2025

URL: https://www.frixlaw.com/law-library/cases/11135599

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 8, 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/11135599

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11135599. Public record. Not legal advice.