The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SCOTT E.,
Plaintiff, MEMORANDUM & ORDER
24-CV-1062 (MKB)
v.
COMMISSIONER OF THE SOCIAL SECURITY
ADMINISTRATION,
Defendant.
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MARGO K. BRODIE, United States District Judge:
Plaintiff Scott E.1 commenced the above-captioned action on February 9, 2024 pursuant
to 42 U.S.C. § 405(g), seeking review of a final decision of the Commissioner of the Social
Security Administration (the “Commissioner”), denying his claims for Social Security disability
insurance benefits under the Social Security Act (“SSA”).2 (Compl., Docket Entry No. 1.)
1 Pursuant to Plaintiff’s motion to seal the case, (Pl.’s Mot. to Seal, Docket Entry No.
13), Judge Nusrat J. Choudhury granted Plaintiff’s motion in part and ordered the court to: “(1)
redact the caption of any opinion, order, judgment, or other disposition of the court to reflect
only Plaintiff’s first name and last initial; (2) redact all references to Plaintiff’s last name in any
opinion, order, judgment, or other disposition of the court and refer to him by first name and last
initial only; (3) change the caption of this case in PACER to reflect only Plaintiff’s first name
and last initial; (4) restrict all documents containing Plaintiff’s social security number and/or
birthdate to case participants only. All other documents will be publicly accessible.” (Order
granting Pl.’s Mot. to Seal dated Aug. 26, 2024.) On April 21, 2026, this case was transferred
from Judge Choudhury to the Court. (See Order Reassigning Case dated Apr. 21, 2026.) In
accordance with Judge Choudhury’s order, the Court lists Plaintiff only by his first name and last
initial.
2 The Court “liberally construe[s] pleadings and briefs submitted by pro se litigants,
reading such submissions to raise the strongest arguments they suggest.” McLeod v. Jewish
Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (per curiam) (quoting Bertin v. United
States, 478 F.3d 489, 491 (2d Cir. 2007)); see also McNamara v. Comm’r of Soc. Sec., No. 25-
516, 2026 WL 1045356, at *1 (Apr. 16, 2026) (“[P]ro se filings should be liberally construed to
Plaintiff moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure, arguing that Administrative Law Judge (“ALJ”) Alan B. Berkowitz (“ALJ
Berkowitz”) erred in determining that Plaintiff was not entitled to his disability benefits because
his “testimony and the medical evidence corroborating [his] testimony were [not] refuted” and he
was “not afforded a reasonable and objective opportunity to present [his] case before an
independent judge” as his rights were violated preceding the adjudication of his Social Security
benefits claim.3 (Pl.’s Mot. 1–2.) The Commissioner cross-moves for judgment on the
raise the strongest arguments they suggest.” (quoting Green v. Dep’t of Educ., 16 F.4th 1070,
1074 (2d Cir. 2021))). However, Plaintiff is a former practicing attorney and is not afforded the
special latitude traditionally afforded to pro se plaintiffs. See Williams v. Smith, No. 24-2733,
2026 WL 1045419, at *1 (2d Cir. Apr. 17, 2026) (summary order) (“Although we ‘ordinarily . . .
afford a special solicitude to pro se litigants,’ ‘a lawyer representing himself’ . . . will generally
‘receive[ ] no such solicitude at all.’” (first and third alterations in original) (quoting Tracy v.
Freshwater, 623 F.3d 90, 101–02 (2d Cir. 2010))); Cox v. Dep’t of Just., 111 F.4th 198, 207 (2d
Cir. 2024) (declining to afford the plaintiff the “special solicitude typically owed to pro se
litigants because he ‘is not a typical pro se litigant: he is an attorney’” (first citing Chevron Corp.
v. Donzinger, 990 F.3d 191, 203 (2d Cir. 2021); and then citing Tracy, 623 F.3d at 102)); Corbett
v. City of New York, 816 F. App’x 551, 553 (2d Cir. 2020) (“[A]lthough ‘[i]t is well established
that a court is ordinarily obligated to afford a special solicitude to pro se litigants’ based on ‘[t]he
rationale . . . that a pro se litigant generally lacks both legal training and experience, ‘a lawyer
representing himself ordinarily receives no such solicitude at all[.]’” (second, third, and fourth
alterations in original) (citation omitted) (quoting Tracy, 623 F.3d at 101–02)); see also Kelsey v.
Duwe, No. 21-CV-4298, 2021 WL 2209877, at *1 (S.D.N.Y. June 1, 2021) (finding former
attorney plaintiff was “not entitled to the special solicitude normally afforded a pro se litigant”
(internal quotation marks omitted)); Moore v. T-Mobile USA, Inc., No. 10-CV-527, 2012 WL
13036858, at *5 (E.D.N.Y. Sep. 28, 2012) (holding pro se plaintiff, who was once an admitted
attorney but was subsequently disbarred, was “not entitled to the degree of liberality given to
non-attorney pro se [p]laintiffs” as a “former attorney”).
3 Plaintiff filed two “motions” for judgment: (1) dated June 22, 2024 containing
substantive arguments; and (2) dated July 24, 2024 arguing that an answer to his Complaint was
never filed. (Pl.’s Mot. for J. on the Pleadings (“Pl.’s Mot.”), Docket Entry No. 15; Pl.’s Second
Mot. for J. on the Pleadings (“Pl.’s Second Mot.”), Docket Entry No. 14.)
However, as noted in Judge Choudhury’s order dated May 29, 2024, the Commissioner
obtained, served, and filed the administrative record on April 10, 2024 which “constitute[d] [the
Commissioner’s] answer.” (Order dated May 29, 2024.) See, e.g., Britney R. v. Comm’ of Soc.
Sec., No. 23-CV-692, 2024 WL 4258190, at *4 (D. Conn. July 9, 2024) (holding “[t]he
Commissioner answered the complaint by filing the administrative record.”), report and
pleadings, arguing that substantial evidence supported ALJ Berkowitz’s findings, which Plaintiff
opposes.4
For the reasons set forth below, the Court denies Plaintiff’s motion for judgment on the
pleadings and grants the Commissioner’s cross-motion for judgment on the pleadings.
I. Background
On March 30, 2018, Plaintiff filed an application for a period of disability and disability
insurance benefits, with a disability onset date of March 16, 2018. (Certified Admin. R. (“R.”)
37, Docket Entry No. 20.)5 The Social Security Administration initially denied his claims on
October 22, 2018. (Id. at 37, 78–83.) Plaintiff filed a request for a hearing on December 21,
2018, and ALJ Ifeoma N. Iwuamadi held a telephonic hearing on February 11, 2020. (Id. at 37,
52–55, 84–89, 105–110.) Plaintiff requested a postponement, on the record, so that he could
obtain a representative, and a new hearing was scheduled for May 21, 2020 to be held by
recommendation adopted, Order Adopting Report and Recommendation (July 26, 2024).
Further, the Commissioner subsequently filed a cross-motion for judgment on the pleadings.
Therefore, Plaintiff’s “second” motion, dated July 24, 2026, has no merit and the Court denies
the motion. (See Pl.’s Second Mot.) Accordingly, all further references in this Memorandum
and Order to Plaintiff’s motion relates only to his “first” motion for judgment on the pleadings,
dated June 22, 2024. (See Pl.’s Mot.)
4 (Comm’r Cross-Mot. for J. on the Pleadings (“Comm’r Cross-Mot.”), Docket Entry
No. 12; Comm’r Mem. in Supp. of Comm’r Cross-Mot., appended to Comm’r Cross-Mot.
(“Comm’r Mem.”), Docket Entry No. 12-1; Pl.’s Mem. in Opp’n to Comm’r Cross-Mot. (“Pl.’s
Opp’n), Docket Entry No. 18.)
5 The Commissioner initially filed a letter and declaration certifying service of the
administrative record on Plaintiff on April 10, 2024. (Ltr. of Service, Docket Entry No. 8; Decl.
of Service, appended to Ltr. of Service, Docket Entry No. 8-1.) On August 25, 2025, Judge
Choudhury noted the Commissioner never filed the administrative record on the docket and
ordered the Commissioner to do so. (Order dated Aug. 25, 2025.) The Commissioner filed the
administrative record on August 26, 2025. (See R.)
telephone because of the COVID-19 pandemic.6 (Id. at 37, 54–55, 126–27, 147.) On the day of
the May 21, 2020 hearing, Plaintiff informed the hearing office that he did not want a telephone
hearing and requested an in-person hearing. (Id. at 37, 156–59, 433–34.) The hearing was
postponed indefinitely due to the COVID-19 pandemic and Plaintiff’s request for an in-person
hearing was later rescheduled for March 16, 2022. (Id. at 37, 160, 175, 196; see also id. at 435
(On August 6, 2020, the Social Security Administration (the “Administration”) unsuccessfully
called Plaintiff and left a voicemail to confirm whether he would accept a telephone hearing.).)
On March 7, 2022, Plaintiff informed the hearing office by letter that “he needed a postponement
because he was waiting for medical records, he did not want to wear a face mask, he was not
feeling well due to a previous COVID infection, . . . and he needed time to get an attorney.”7
(Id. at 37–38, 199, 439–40.) The hearing office attempted to reach Plaintiff on March 7, 2022
and March 14, 2022 to discuss his objections, but received no response and left voicemail
messages which went unanswered. (Id. at 38, 443.) On the day of the March 16, 2022 hearing,
Plaintiff failed the online COVID-19 health screening for admission to the federal building and
6 Plaintiff alleges that “the clerk pressured [him] to adjourn the matter by repeatedly
asking and explaining that [he] did not have an attorney.” (Pl.’s Opp’n 1.) He states “[i]f the
clerk didn’t want [him] to have the hearing for some reason, [he] didn’t mind letting her
reschedule something that was more convenient for her.” (Id.)
7 Initially, although Plaintiff resides in the service area of the Central Islip, New York
hearing office, Plaintiff’s request for a hearing was transferred to the Jamaica, New York hearing
office due to “routine workload assistance.” (R. 37.) Following the postponement of the
scheduled May 21, 2020 hearing, Plaintiff’s case was transferred back to the Central Islip, New
York hearing office for an in-person hearing. (Id.) One of Plaintiff’s objections to the scheduled
March 16, 2022 hearing was that he “wanted the venue changed back to Jamaica.” (Id. at 37–38,
440; see also Pl.’s Mot. 1 (“I requested that the case be transferred back to Queens, but was
denied.”).) ALJ Berkowitz found that Plaintiff “did not provide a reason for requesting a transfer
to the Jamaica hearing office” and therefore did “not find that good cause exists for changing the
place of the hearing to Jamaica.” (R. 38; see also id. at 441 (noting denial of venue transfer).)
The subsequent hearings were all scheduled for Central Islip, New York.
the hearing was rescheduled to May 18, 2022. (Id. at 38, 202, 216.) On the day of the May 18,
2022 hearing, Plaintiff again failed the online COVID-19 health screening for admission to the
federal building, and the hearing was rescheduled. (Id. at 38.) “Given [Plaintiff’s] objections to
the COVID-19 safety procedures for in-person hearings and his difficulties with the COVID-19
health screenings, [Plaintiff] was scheduled for a telephone hearing” on June 23, 2022. (Id. at
38, 219, 228, 231, 450–59.)
a. June 23, 2022 hearing before ALJ April Wexler
On June 23, 2022, ALJ April Wexler (“ALJ Wexler”) held a telephone hearing with
Plaintiff who chose to appear without an attorney or other representative.8 (Id. at 38, 58.) ALJ
Wexler attempted to place Plaintiff under oath, but Plaintiff responded, “I’m not testifying.” (Id.
at 38, 61.) ALJ Wexler asked Plaintiff whether he was “asking” her “to make a [d]ecision based
on the record . . . and the documents” and Plaintiff responded in the affirmative. (Id. at 61.)
Plaintiff later expressed his confusion about the documents ALJ Wexler would rely upon to
make her decision, stating he never received those documents,9 to which ALJ Wexler explained
8 In his opposition brief, Plaintiff states that he has “no recollection” of his June 23, 2022
hearing or “why a third hearing then was scheduled.” (Pl.’s Opp’n 2.)
9 Plaintiff alleges that that “he never received a copy of his exhibit file” after receiving a
“broken CD.” (R. 38, 60–63, 457.) Plaintiff also alleges that when he “went to [his] first social
security hearing in Queens, the clerk, on that day, gave [him] a CD and said [he] should use the
computer to review the evidence.” (Pl.’s Mot. 1.) Plaintiff contends he “could not review the
evidence, because [he] was not able to use the computer system because of [his] disability.” (Id.)
ALJ Berkowitz, in his decision, found that “the record show[ed] that the file was mailed
to [Plaintiff] on CD on October 25, 2019 and November 1, 2019, and no additional records ha[d]
been received since then.” (R. 38.) Further, ALJ Berkowitz noted “[t]he hearing office had also
called [Plaintiff] to review the exhibits on numerous occasions, but [Plaintiff] did not respond to
attempted outreach.” (Id.; see also id. at 394 (letter to Plaintiff on October 25, 2019, enclosing
CD record), 409 (letter to Plaintiff on November 1, 2019, enclosing CD record), 459 (the
Administration contacted Plaintiff offering to send him a hard copy of his record but he stated he
“didn’t feel that was very practical” and would “think about it and call [ ] back”), 461–63 (the
Administration mailed a hard copy version of the record on July 5, 2022), 480–81 (offering
there were “at least 25 attempts” to contact Plaintiff to both ensure he received the record and to
ask for additional medical sources, which the Administration would be “happy to try to get
records for [him],” but Plaintiff failed to cooperate. (Id. at 61–63.) ALJ Wexler then attempted
to ask Plaintiff for the names of other doctors he had seen and treatment he had received, to
potentially request additional records, but Plaintiff reiterated that he was “not testifying today.”
(Id. at 38, 62–63.) Plaintiff then stated he had “seen lots of doctors” but that “he did not have
any names or contact information for his medical providers.” (Id. at 38, 63–64.) Plaintiff then
requested an adjournment which ALJ Wexler “denied on the record” and “cautioned [Plaintiff]
that if he did not offer testimony, she would make a decision based on the evidence in the file.”
(Id. at 38, 63–65.) “However, because [Plaintiff] had not agreed in writing to a telephone
hearing, the request for hearing was placed back on the docket,” ALJ Wexler did not issue a
decision, and a new ALJ was later assigned (ALJ Berkowitz). (Id. at 38, 284, 286.)
An in-person hearing was scheduled for October 6, 2022. (Id. at 38, 232, 248.) The day
before the hearing, Plaintiff failed the online COVID-19 health screening for admission to the
federal building for a third time and the hearing was rescheduled to January 4, 2023. (Id. at 38–
39, 270, 482–83; see also id. at 263 (letter from ALJ Wexler to Plaintiff explaining that he was
required “to show good cause” if he still wanted a hearing because he failed to appear), 269
(letter from Plaintiff stating he “has to answer questions before the hearing” due to COVID rules
and he attempted to call the number “but it was broken”).) In a letter dated December 8, 2022,
Plaintiff requested another postponement, stating that he had a family matter to attend to. (Id. at
Plaintiff the opportunity to listen to the prior hearing recording if he could not read a hard copy),
490 (letter to Plaintiff on December 15, 2022, enclosing CD record).)
39, 298, 302.) ALJ Berkowitz denied the postponement request on December 15, 2022 and
enclosed in the letter another copy of Plaintiff’s exhibit file. (Id. at 39, 302–03, 489.)
b. Plaintiff’s allegations prior to the January 4, 2023 hearing
Plaintiff alleges that prior to the January 4, 2023 hearing before ALJ Berkowitz, his rights
were violated which prevented him from being “afforded [ ] a reasonable and objective
opportunity to present [his] case before an independent judge.” (Pl.’s Opp’n 3.)
First, Plaintiff alleges that he informed the hearing office that he “wanted to have a
hearing in person without a mask” but was “refused and forced [ ] to wear a mask during the
hearing.” (Pl.’s Mot. 1.) Plaintiff also states that ALJ Berkowitz “was also wearing a mask.”
(Id. at 2.) Plaintiff contends that being forced “to wear a mask against [his] will during the entire
process obstruct[ed] his breathing” and “violated [his] rights for many reasons.” (Id.; see also
Pl.’s Opp’n 2 (“At the hearing, Social Security forced me to wear a mask and the judge was
wearing a mask. I don’t know what law allows Social Security to attack the claimants and force
them to wear a mask impeding communication at a hearing.”).)
Second, Plaintiff alleges that at the downstairs security checkpoint prior to the hearing,
his “prescription glasses were confiscated during the [security] search . . . with no explanation,”
which “temporarily blind[ed him] in order to go through a metal detector.” (Pl.’s Mot. 2)
Plaintiff states that the “guard yelled at [him] for not being able to see through the metal
detector.” (Id.)
Lastly, Plaintiff alleges that the upstairs security guard “stuck the metal detector wand in
between [his] legs” which “violated [his] rights and was done right before [he] was supposed to
have a hearing.” (Id.)
Plaintiff states that he “filed a complaint with [the Administration] which was summarily
denied,” (id.), and attached the denial letter to his motion for judgment on the pleadings. (See
Soc. Sec. Program Discrimination Complaint Form, appended to Pl.’s Mot. 6–10; Soc. Sec. Ltr.
denying Pl.’s Discrimination Complaint, appended to Pl.’s Mot 11–13.) The denial letter
explains that the Administration’s Center for Compliance Management (“CCM”) reviewed and
denied Plaintiff’s complaint because “CCM lacks jurisdiction over the content of the complaint”
as his “allegation against the security guard is outside the scope of CCM’s investigative
authority” because the “security guards are not [Administration] employees.” (Soc. Sec. Ltr.
denying Pl.’s Discrimination Complaint.) CCM forwarded Plaintiff’s complaint to the Center for
Materiel Services who oversees contracting services for the security guards. (Id.) Plaintiff did
not include any response or follow up from the Center for Materiel Services. (See generally Pl.’s
Mot.)
c. The January 4, 2023 hearing before ALJ Berkowitz
Plaintiff appeared for an in-person hearing before ALJ Berkowitz on January 4, 2023.
(R. 39, 69–70.) “Although [Plaintiff] was previously informed of his right to representation, and
granted a hearing postponement on February 11, 2020 in order to obtain representation,
[Plaintiff] chose to appear without an attorney or other representative.”10 (Id. at 39.) ALJ
Berkowitz attempted to place Plaintiff under oath and Plaintiff responded “I’m not testifying. I
submitted the medical records for review.” (Id. at 39, 69–70.) Therefore, ALJ Berkowitz ended
the hearing finding it “completed.” (Id. at 70.)
10 Plaintiff states that he “had contacted a number of attorneys who never responded,”
but he cannot “make these attorneys answer [his] calls,” so he was “not sure why Social Security
is putting that burden on [him].” (Pl.’s Opp’n 1.)
d. Additional medical evidence
Plaintiff initially provided the information of Dr. Loren Ecker, of New Horizon
Counseling Center, in relation to his mental health conditions (which included depression,
anxiety, and manic-depression), and Dr. Lana Kang, in relation to his hand and wrist conditions
(including carpal tunnel syndrome, repetitive stress injury, and a steroid shot he received in his
right wrist). (Id. at 74, 364–65, 373–74, 509–48.)
The record reflects progress notes from Dr. Kang, a hand and wrist specialist at the
Hospital for Special Surgery, from September 5, 2017, prior to the alleged onset date of
Plaintiff’s disability, detailing his first clinic visit where he complained about constant numbness
and pain in his hands with the left hand worse than the right hand. (Id. at 43, 509–11.) Dr. Kang
conducted a physical examination, noted she believed Plaintiff’s hand numbness was “likely”
carpal tunnel syndrome, recommended Plaintiff “get a nerve testing,” discussed nonoperative
treatment, and administered a cortisone shot injection. (Id. at 43, 510.) Plaintiff underwent a
nerve study on February 20, 2018, which found “mild right ulnar neuropathy at the elbow
(cubital tunnel syndrome) that ha[d] resulted in mild neuropraxia.” (Id. at 43, 513.)
The record also reflects a psychological intake conducted by Dr. Ecker on March 20,
2018. (Id. at 517–32.) Plaintiff was referred to New Horizon Counseling Center for outpatient
treatment services for depression and anxiety. (Id. at 518.) Further, the intake form notes
Plaintiff reported various other issues including hyperlipidemia, digestive problems, urological
problems, migraines, and carpal tunnel. (Id. at 522.) Dr. Ecker noted that Plaintiff reported
“feeling depressed and anxious all of his life and ha[d] seen multiple therapists at different
stages,” “has struggled to maintain healthy work relationships and has been fired from many
jobs,” that his “[m]ultiple medical conditions discourage him from pursuing his career,” and he
“suffered bullying and other traumatic experiences which have contributed to his current state of
depression.” (Id. at 525.) Dr. Ecker also noted that Plaintiff “was initially quite guarded during
the intake, but eventually became more open and cooperative.” (Id.) Plaintiff was referred for
outpatient therapy and medication management. (Id. at 43, 526.) Further, Plaintiff was seen for
a medication evaluation at which time he was diagnosed with bipolar disorder. (Id. at 43.) On
May 3, 2018, Plaintiff followed up with a clinical social worker who set up an initial treatment
plan, although Plaintiff deferred further treatment because he was leaving the state. (Id. at 43,
526, 532, 545–48.)
The Administration notes that Plaintiff failed to attend the following Administration-
scheduled appointments: two neurological clinical evaluations on August 28, 2018 and
September 26, 2018 and three psychological clinical evaluations scheduled for August 1, 2018,
August 14, 2018, and October 1, 2018. (Id. at 74.)
In December of 2022, Plaintiff provided the Administration with a list of treating doctors,
but without addresses or telephone numbers. (Id. at 39, 487.) The form also listed various
conditions and the name of a hospital where he was hospitalized because of his “back” and
received “medicine” as a treatment. (Id. at 487.) ALJ Berkowitz explained that he was “unable
to request records from these providers because [Plaintiff’s] file [did] not contain a current,
signed authorization for release of records.” (Id. at 39; see also id. at 490 (the Administration’s
letter to Plaintiff on December 15, 2022 requesting a signed authorization to release information
form).)
e. ALJ Berkowitz’s decision
By decision dated January 17, 2024, ALJ Berkowitz first found that he was “satisfied that
[Plaintiff] ha[d] been afforded ample opportunities to be present for a hearing and offer
testimony,” Plaintiff had previously been cautioned by ALJ Wexler “that if he did not offer
testimony, she would make a decision based on the evidence in the file,” and that Plaintiff, as an
attorney, “should be able to understand that if he does not offer testimony or assist with
developing the record, the consequence is that he will receive a decision that is based on the
evidence in the file.” (Id. at 39.)
Second, ALJ Berkowitz determined that Plaintiff “last met the insured status
requirements of the [SSA] on December 31, 2021” but “was not under a disability . . . at any
time from March 16, 2018, the alleged onset date, through December 31, 2021, the date last
insured.” (Id. at 41, 44.) In arriving at his conclusion, ALJ Berkowitz conducted the five-step
procedure for evaluating disability claims.11 (Id. at 40–44.)
At step one, ALJ Berkowitz found that Plaintiff had not engaged in substantial gainful
activity since the alleged onset date of his disability. (Id. at 41.)
At step two, ALJ Berkowitz found that Plaintiff suffered from several medically
determinable impairments, including right cubital syndrome, obesity, and bipolar disorder. (Id.)
However, ALJ Berkowitz held that Plaintiff “did not have an impairment or combination of
impairments that significantly limited the ability to perform basic work-related activities for 12
11 The five-step sequential process outlined by the SSA considers: (1) whether the
claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a
severe impairment or combination of impairments; (3) whether the impairment meets or equals
the severity of the specified impairments in the Listing of Impairments; (4) based on a “residual
functional capacity” assessment, whether the claimant can perform any of his or her past relevant
work despite the impairment; and (5) whether there are significant numbers of jobs in the
national economy that the claimant can perform given the claimant’s residual functional
capacity, age, education, and work experience. Schillo v. Kijakazi, 31 F.4th 64, 70 (2d Cir.
2022) (citing 20 C.F.R. § 404.1520(a)(4)(i)–(v)); see 20 C.F.R. § 416.920(a); see also Nunez v.
Comm’r of Soc. Sec., 164 F.4th 60, 67 (2d Cir. 2025) (explaining the SSA’s five-step inquiry for
disability determinations).
consecutive months,” and “therefore, [Plaintiff] did not have a severe impairment or combination
of impairments.” 12 (Id. at 42.) ALJ Berkowitz further found that although Plaintiff “also
alleged disability due to carpal tunnel syndrome,” that condition was “not established in the
record as a medically determinable impairment.” (Id.)
ALJ Berkowitz explained that generally “it is a claimant’s responsibility to prove that he
or she is . . . disabled” and “must inform [the Administration] about or submit all known
evidence that relates to whether or not he or she is . . . disabled.” (Id.) That “duty is ongoing
and requires a claimant to disclose any additional related evidence about which [he or she]
become[s] aware” and “applies at each level of the administrative review process.” (Id.) ALJ
Berkowitz noted that the Administration “will consider only impairment(s) the claimant says he
or she has or about which [the Administration] receive[s] evidence,” “evidence in the case record
must be complete and detailed enough to allow [the Administration] to make a determination or
decision about whether the claimant is disabled,” and the evidence “must allow [the
Administration] to determine the nature and severity of the impairment(s).” (Id.)
“In considering the claimant’s symptoms, the [ALJ] must follow a two-step process in
which it must first be determined whether there is an underlying medically determinable physical
or mental impairment(s) . . . that could reasonably be expected to produce the claimant’s pain or
other symptoms,” and second the ALJ “must evaluate the intensity, persistence, and limiting
effects of the claimant’s symptoms to determine the extent to which they limit the ability to
perform work-related activities.” (Id.) In his analysis, ALJ Berkowitz noted that Plaintiff
12 For claims for a period of disability and disability insurance benefits, a claimant must
show that she has met the requirements of sections 416(i) and 423 of the SSA, which establish
the necessary conditions of an individual’s insured status. 42 U.S.C. §§ 416, 423. Plaintiff does
not contest this requirement.
“reported that he has been unable to work since March 16, 2016 because of hand injuries, carpal
tunnel syndrome, cubital tunnel syndrome, depression, and ‘manic depression’” which causes
“pain in his hands” and makes it difficult to lift and type. (Id.) Further, ALJ Berkowitz noted
Plaintiff “reported that he experienced depression and anxiety, and he had difficulty paying
attention and remembering things.” (Id.) Lastly, ALJ Berkowitz noted that Plaintiff “reported
that he lived alone,” “he could prepare food, clean and do laundry,” “he could drive, travel alone,
pay bills, and handle his finances,” and “he went shopping daily and that he socialized.” (Id.)
ALJ Berkowitz found there was “minimal medical evidence in the record” as the case
record lacked medical opinions on Plaintiff’s functioning and “[s]tate agency medical
consultants reviewed the evidence and concluded that it was insufficient to opine on [Plaintiff’s]
functional capacity.” (Id. at 43.) Starting with Plaintiff’s physical conditions, ALJ Berkowitz
detailed a September of 2017 physical evaluation and February of 2018 nerve testing results but
otherwise noted there were “no subsequent treatment records” and Plaintiff “would not attend a
neurological consultative examination at the agency’s expense.” (Id.) In addressing Plaintiff’s
mental health conditions, ALJ Berkowitz detailed a March of 2018 psychiatric care initial intake
visit and a May of 2018 clinical social worker visit but otherwise explained that Plaintiff
“deferred further treatment because he was leaving the state,” there were “no subsequent
treatment records, and [Plaintiff] would not attend a psychological consultative examination at
the agency’s expense.” (Id.)
Therefore, ALJ Berkowitz concluded that, upon a review of the “available evidence,”
“while there were underlying medically determinable impairments that could reasonably be
expected to produce [Plaintiff’s] symptoms, there [was] insufficient evidence to determine the
extent to which they limit [Plaintiff’s] ability to perform basic work activities.” (Id.) Further, as
to Plaintiff’s medically determinable mental impairment, ALJ Berkowitz determined it was
“non-severe” because it “caused no limitations in any of the functional areas and the evidence
does not otherwise indicate that there [was] more than a minimal limitation in [Plaintiff’s] ability
to do basic work activities.”13 (Id. at 44.) ALJ Berkowitz concluded that Plaintiff’s physical and
mental impairments did not significantly limit Plaintiff’s ability to perform basic work activities,
and consequently, Plaintiff did not have a severe impairment or combination of impairments.
(Id.) Therefore, ALJ Berkowitz found Plaintiff was not under a disability within the meaning of
the SSA at any time “from March 16, 2018, the alleged onset date, through December 31, 2021,
the date last insured.” (Id.)
On December 21, 2023, the Administration Appeals Council denied Plaintiff’s request
for review of ALJ Berkowitz’s determination, rendering his decision final. (Id. at 1–5.) Plaintiff
timely appealed the decision. (See Compl.)
II. Discussion
a. Standard of review
“In reviewing a final decision of the Commissioner, a district court must determine
whether the correct legal standards were applied and whether substantial evidence supports the
decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004) (citing Machadio v. Apfel, 276
F.3d 103, 108 (2d Cir. 2002)), as amended on reh’g in part, 416 F.3d 101 (2d Cir. 2005); see
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam) (quoting Talavera v. Astrue, 697
F.3d 145, 151 (2d Cir. 2012)). “‘Substantial evidence’ is ‘a very deferential standard of
13 The four “functional areas,” set out in the disability regulations for evaluating mental
disorders and in section 12.00C of the listing impairments (20 C.F.R., Part 404, Subpart P,
Appendix 1), are: (1) understanding, remembering, or applying information; (2) interacting with
others; (3) concentrating, persisting and maintaining pace; and (4) adapting or managing oneself.
(R. 44.) 20 C.F.R § 404.1520a. See infra footnote 17 for further discussion.
review,’” Nunez v. Comm’r of Soc. Sec., 164 F.4th 60, 70 (2d Cir. 2025) (quoting Schillo v.
Kijakazi, 31 F.4th 64, 74 (2d Cir. 2022)), “even more so than the clearly erroneous standard,”
Benjamin v. Comm’r of Soc. Sec., No. 25-2343, 2026 WL 697004, at *1 (2d Cir. Mar. 12, 2026)
(summary order) (quoting Schillo, 31 F.4th 74). “Substantial evidence means more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Sczepanski v. Saul, 946 F.3d 152, 157 (2d Cir. 2020) (quoting Moran v.
Astrue, 569 F.3d 108, 112 (2d Cir. 2009)); Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015)
(per curiam) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)) (same); McIntyre v.
Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (quoting Richardson, 402 U.S. at 401) (same); see also
Benjamin, 2026 WL 697004, at *1 (same); Schillo, 31 F.4th 64 (same). Once an ALJ finds facts,
the court “can reject those facts only if a reasonable factfinder would have to conclude
otherwise.” Nunez, 164 F.4th at 70 (quoting Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d
Cir. 2012)); see Anthony v. Saul, No. 24-2163, 2025 WL 2848224, at *1 (2d Cir. Oct. 8, 2025)
(summary order) (quoting same); Rushford v. Kijakazi, No. 23-317, 2023 WL 8946622, at *1 (2d
Cir. Dec. 28, 2023) (summary order) (quoting same); Talyosef v. Saul, 848 F. App’x 47, 48 (2d
Cir. 2021) (quoting same). “Indeed, under the substantial evidence standard, the
[Administration]’s determination must be upheld if it is rational and supported by the record,
even ‘[i]f [the] evidence is susceptible to more than one rational interpretation.’” Nunez, 164
F.4th at 70 (alterations in original) (quoting Schillo, 31 F.4th at 74); see Smith v. Berryhill, 740
F. App’x 721, 726 (2d Cir. 2018) (The court “defer[s] to the Commissioner’s resolution of
conflicting evidence.” (quoting Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012)));
see also Spottswood v. Kijakazi, No. 23-54, 2024 WL 89635 (2d Cir. Jan. 9, 2024) (summary
order) (quoting same). If, however, the Commissioner’s decision is not supported by substantial
evidence or is based on legal error, a court may set aside the Commissioner’s decision. See, e.g.,
Nunez, 164 F.4th at 64 (remanding to the Commissioner because the ALJ’s residual functional
capacity determination was not supported by substantial evidence); Rubin v. O’Malley, 116 F.4th
145, 160 (2d Cir. 2024) (remanding because substantial evidence did not support the ALJ’s
determination regarding disability status); Colgan v. Kijakazi, 22 F.4th 353, 363–64 (2d Cir.
2022) (remanding because substantial evidence did not support the Commissioner’s decision);
see also Prince v. Astrue, 514 F. App’x 18, 19–20 (2d Cir. 2013) (“A court may set aside the
Commissioner’s decision only if it is based upon legal error or if his factual findings are not
supported by substantial evidence in the record as a whole.” (first citing 42 U.S.C. § 405(g); and
then citing Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008))). The SSA “must be liberally
applied, for it is a remedial statute intended to include not exclude.” Moran, 569 F.3d at 112; see
also Dany Z. v. Saul, 531 F. Supp. 3d 871, 881 (D. Vt. 2021) (“In its deliberations, a court should
bear in mind that the [SSA] is ‘a remedial statute to be broadly construed and liberally applied.’”
(quoting Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981))).
b. Non-reviewable issues
Plaintiff first argues that he was “attacked by Social Security without provocation before
the hearing” and complains about how he was treated at two security checkpoints. (Pl.’s Opp’n
2.) Second, Plaintiff criticizes how he was “forced [ ] to wear a mask” during his hearing in
front of ALJ Berkowitz. (Id. at 2–3.) Plaintiff therefore contends he was not “afforded [ ] a
reasonable and objective opportunity to present [his] case before an independent judge” because
“[b]eing attacked before the hearing and forced to be masked does not appear to be reasonable or
objective in any way.” (Id. at 3.)
The Commissioner argues that the “Court should dismiss these broad and conclusory
allegations.” (Comm’r Mem. 8 n.4.) First, the Commissioner argues that none of Plaintiff’s
claims are judicially reviewable under 42 U.S.C. § 405(g), Plaintiff has not explained how any of
his claims arise under the SSA, or that the allegations have met the exhaustion requirements of
42 U.S.C. § 405(g). (Id.) The Commissioner points to Plaintiff’s complaint which “only seeks
review of [ALJ Berkowitz]’s decision . . . and does not specifically indicate any civil rights or
other causes of action.” (Id.) Second, the Commissioner argues that Plaintiff “has not alleged a
single fact that would bring this . . . case under the purview of any applicable anti-discrimination
statute.” (Id.) Lastly, the Commissioner argues that Plaintiff’s “conclusory statement that [the
Administration] violated his right is not sufficient to support any cause of action.” (Id.)
Plaintiff has failed to demonstrate, based either on case law or statutory support, that his
pre-hearing allegations are reviewable by a district court upon appeal from an ALJ’s denial
decision. See 42 U.S.C. § 405(g) (a final decision by the Commissioner after a hearing is
judicially reviewable to determine “only the question of conformity with such regulations and
the validity of such regulations”); Butts, 388 F.3d at 384 (“In reviewing a final decision of the
Commissioner, a district court must determine whether the correct legal standards were applied
and whether substantial evidence supports the decision.”); Wheeler v. Apfel, 201 F.3d 434, 434
(2d Cir. 1999) (“A district court reviewing the denial of benefits must determine whether the
Administrative Law Judge applied the correct legal standard and whether the findings of fact
were supported by substantial evidence.”); see also Colgan, 22 F.4th at 359 (“In reviewing an
appeal from the denial of disability benefits, we focus on the administrative ruling rather than the
district court’s opinion to determine whether the ALJ’s decision was supported by substantial
evidence . . . [which] requires us to conduct a plenary review of the administrative record.”
(internal quotation marks omitted)). Therefore, while sympathetic to what allegedly occurred
before ALJ Berkowitz’s hearing, the claims are not reviewable by the Court and do not impact
the Court’s analysis of ALJ Berkowitz’s determination denying Plaintiff social security disability
benefits.
c. The record supports ALJ Berkowitz’s step two determination
Plaintiff argues that the Commissioner “did not provide any evidence refuting the
medical evidence that [he] provided,” “did not contact the doctors to ask them about the
condition,” “did not hire their own hand doctor to review [Plaintiff’s] medical evidence” or
“write a report about it.” (Pl.’s Opp’n 2.) Plaintiff generally contends that the Commissioner
“didn’t seem to do anything to review the evidence provided, except make requests for more
evidence.” (Id.) First, Plaintiff explains that he “provided the forms for Social Security to
request information from [his] providers,” which he acknowledges they received information
from those doctors, but argues that he “can’t control what the doctors provide or if and when
they provide information at all” and can only control “that [he] provided the documents that [he]
had.” (Id. at 2–3.) Plaintiff argues “[t]h[o]se documents are sufficient to corroborate [his]
claim.” (Id. at 3.) Second, Plaintiff argues he “went to the Hospital for Special Surgery for
diagnosis,” a world-renowned institution, and the “diagnostic test of [his] hands and arms
showed a positive diagnosis consistent with [his] claim.” (Id. at 2.) Plaintiff explains he
“received surgery which was ultimately not successful in order to treat [his] condition.” (Id.) In
addition, Plaintiff contends the Commissioner “has provided no evidence to contradict the
Hospital for Special Surgery” and “did not request an evaluation by a doctor who [Plaintiff]
chose which they could watch.” (Id. at 2–3.) Plaintiff argues the Commissioner “provided no
contrary reports from another expert or even interviewed the doctors for further explanation if
they doubted their diagnosis.” (Id. at 3.) Lastly, Plaintiff argues his “condition has worsened
since” his insurance was cancelled and explains a new symptom he now suffers.14 (Id. at 2.)
The Commissioner argues ALJ Berkowitz’s decision applied the correct legal standards,
is supported by substantial evidence, and therefore should be affirmed by the Court. (Comm’r
Mem. 1.) First, the Commissioner argues the Administration and ALJ Berkowitz made
reasonable efforts to develop the record and properly issued a decision based on the available
evidence. (Id. at 14.) While Plaintiff’s application reported treatment from Dr. Kang and Dr.
14 Plaintiff argues that “some of the cases provided by Social Security have a notation on
the top that they do not have precedential effect” and “one of the cases provided is not a claim
for Social Security Disability (SSD) benefits.” (Pl.’s Opp’n 3.) Therefore, Plaintiff argues
“[t]hese cases should be stricken from [the Commissioner’s] motion for judgment as
inapplicable.” (Id.) Plaintiff’s argument relies on the incorrect principle that unreported cases
cannot be relied upon because they do not have precedential effect. “Judges have wide latitude
in deciding what to publish.” Sakiko Fujiwara v. Sushi Yasuda Ltd., 58 F. Supp. 3d 424, 436
(S.D.N.Y. 2014). “The Second Circuit has made clear that published district court opinions are
not more persuasive than unpublished opinions.” Paige v. Digit. Bus. Networks All., Inc., No.
24-CV-3169, 2026 WL 880549, at *19 (S.D.N.Y. Mar. 31, 2026) (citing Lebron v. Sanders, 557
F.3d 76, 79 n.7 (2d Cir. 2009) (“We do not suggest that published district court opinions are
more persuasive than unpublished district court opinions[.]” (alteration in original))). Regardless
of whether a case is reported or unreported, district court decisions are not precedential. See
Tronox Inc. v. Andarko Petrol. Corp., No. 14-CV-5495, 2025 WL 2242166, at *3 (S.D.N.Y.
Aug. 6, 2025) (“Unlike appellate court decisions, district court decisions are not precedential in
the strict sense of the word: they are not binding on other courts or judges — even on judges in
the same district — in subsequent cases.”). Therefore, district courts are not mandated to follow
non-precedential case law, but may still rely on non-binding case law to determine an issue. See
Apuzza v. NYU Langone Long Island, No. 22-CV-7519, 2024 WL 3520544, at *5 n.2 (E.D.N.Y.
July 23, 2024) (finding “there is nothing improper about the [court’s previous] citations to
holdings and reasoning of numerous district court cases” because “‘the decisions of other district
courts, including decisions from the same district, . . . are not binding on other districts,’ they
may still be ‘relevant and persuasive’” (quoting Sinkler v. Berryhill, 317 F. Supp. 3d 687, 690
(W.D.N.Y. 2018))); King v. Creed, No. 14-CV-165, 2017 WL 11712218, at *3 (N.D.N.Y. Sep.
28, 2017) (“[The p]laintiff is correct that decisions from other district courts are not binding on
this [c]ourt . . . [b]ut it does not follow that a court is precluded from considering or relying on
decisions from other district courts within their circuit merely because those decisions are not
binding.”). As to the case that allegedly does not involve social security benefits, which Plaintiff
does not name, the Court will analyze the cases each party relies upon and determine whether the
Court finds each to be persuasive.
Ecker, whose records were obtained and added to the administrative record, the Commissioner
contends that “Plaintiff did not provide [the Administration] with the information necessary to
obtain evidence from his treatment providers” despite the Administration’s, ALJ Wexler’s, and
ALJ Berkowitz’s numerous attempts to assist Plaintiff. (Id. at 14–15.) Due to Plaintiff’s lack of
cooperation, there were no records between March of 2018 and December of 2021 for ALJ
Berkowitz to review. (Id. at 14.) The Commissioner argues that while “ALJs have a duty to
affirmatively develop the record . . . the duty to develop the record is not infinite,” and ALJ
Berkowitz “properly closed the record in January [of] 2023 — nearly five years after Plaintiff
filed his benefits application — and issued a decision based on the available record.”15 (Id. at
15–17.) Second, the Commissioner contends that there is substantial evidence that supports ALJ
Berkowitz’s finding that Plaintiff did not suffer from a severe impairment prior to Plaintiff’s last
insured date of December 31, 2021. (Id. at 17–21.) In support, the Commissioner argues that
“Plaintiff has not met his burden of establishing evidence of a severe impairment” because
“Plaintiff’s statements about pain or other symptoms will not alone establish disability” and the
information contained in the record was insufficient to corroborate Plaintiff’s hand pain,
psychiatric treatment, and limitations due to all alleged conditions. (Id. at 18–21.)
In the second step of the five-step analysis, the ALJ must determine whether a claimant
has a severe impairment or a combination of impairments. An impairment is considered
“severe” if it significantly limits an individual’s physical or mental abilities to do basic work
activities and persists for at least twelve months. SSR 96-3p, 1996 WL 374181, at *1 (July 2,
15 Because Plaintiff does not argue that the Administration and/or ALJ Berkowitz failed
in their duty to affirmatively develop the record, but instead argues that the information he
provided is “sufficient to corroborate [his] claim,” the Court does not address ALJ Berkowitz’s
duty to develop the record. (Pl.’s Opp’n 3.)
1996); 20 C.F.R. § 404.1520(c); see also Colby v. O’Malley, 743 F. Supp. 3d 433, 435 (E.D.N.Y.
2024) (quoting 20 C.F.R. § 404.1520(c)); Cardoza v. Comm’r of Soc. Sec., 353 F. Supp. 3d 267,
279–80 (S.D.N.Y. 2019) (quoting same). Basic work functions are related to an individual’s
ability and aptitude to perform most jobs such as “walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling . . . seeing, hearing, and speaking . . . [u]nderstanding,
carrying out and remembering simple instructions . . . [u]se of judgment . . . [r]esponding
appropriately to supervision, co-workers and usual work situations.” Cardoza, 353 F. Supp. 3d
at 279–80 (alterations in original) (quoting Taylor v. Astrue, 32 F. Supp. 3d 253, 265 (N.D.N.Y.
2012)); 20 C.F.R. § 404.1522(b); see also Melissa S. v. O’Malley, No. 23-CV-859, 2024 WL
4057457, at *3 (D. Conn. Sep. 5, 2024) (quoting 20 C.F.R. § 404.1522(b)). A severe impairment
must persist for at least twelve months. See 42 U.S.C. § 423(d)(1)(A) (disability involves
impairment “which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months”). An impairment is considered “not
severe” if it only has a minimal effect on an individual’s ability to perform basic work
functions. SSR 96-3p, 1996 WL 374181, at *1; see Bowen v. Yuckert, 482 U.S. 137, 154 n.12
(1987). The “mere presence” of a disease or impairment or a diagnosis on its own is not
sufficient to make the condition severe. Taylor, 32 F. Supp. 3d at 265; see also Denise W. v.
Comm’r of Soc. Sec., No. 25-CV-349, 2026 WL 970009, at *5 (N.D.N.Y. Apr. 9, 2026) (quoting
id.); Tavera v. Comm’r of Soc. Sec., No. 21-CV-5020, 2025 WL 2523183, at *11 (quoting
Bourdier v. Saul, No. 19-CV-205, 2020 WL 705211, at *6 (E.D.N.Y. Feb. 12, 2020)). However,
“the standard for finding of severity under Step Two of the sequential analysis is de minimis and
is intended only to screen out the very weakest cases.” McIntyre, 758 F.3d at 151. The burden is
on the plaintiff to establish that any impairment they allege is severe. Dixon v. Shalala, 54 F.3d
1019, 1030–31 (2d Cir. 1995); see also Wayne P. M. v. Comm’r of Soc. Sec., No. 24-CV-1268,
2026 WL 849934, at *4 (N.D.N.Y. Mar. 27, 2026) (citing DeChirico v. Callahan, 134 F. 3d
1177, 1180 (2d Cir. 1998)) (same).
i. Plaintiff has the burden to establish a severe impairment
Plaintiff does not contend that there was insufficient evidence in ALJ Berkowitz’s
decision to support the denial of Plaintiff’s claim, but instead argues that what he submitted to
the Administration supports his claim for social security disability benefits and the
Administration failed to contradict his claims and/or present supporting evidence to refute
Plaintiff’s claims. (See Pl.’s Opp’n 2.) Plaintiff is incorrect — case law in the Second Circuit
makes clear that the burden is on the claimant to demonstrate that he has an impairment and such
impairment is severe. See, e.g., Wayne P. M., 2026 WL 849934, at *4 (“The plaintiff bears the
burden of presenting evidence establishing that an impairment is both medically determinable
and severe.”); Elizabeth A. o/b/o A.C.P. v. Saul, No. 20-CV-128, 2021 WL 2431002, at *2
(W.D.N.Y. June 15, 2021) (“It is the claimant’s burden at Step Two to establish that he has a
medically determinable impairment and that the impairment is severe.”). As it is an ALJ’s
explicit duty to develop the record, the Administration and the various ALJs made numerous
requests for more information about Plaintiff’s conditions, treatments, and doctors were to assist
Plaintiff in developing a record ahead of ALJ Berkowitz’s review of his claim for social security
disability. See Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 508–09 (2d Cir. 2010) (“[I]t is the
rule in our circuit that the [social security] ALJ, unlike a judge in a trial, must [on behalf of all
claimants] . . . affirmatively develop the record in light of the essentially non-adversarial nature
of a benefits proceeding.”); cf. Miller v. Comm’r of Soc. Sec., 784 F. App’x 837, 839 (2d Cir.
2019) (finding no further duty to develop the record where the claimant failed to specify which
records were missing or what the missing records would show). Contrary to Plaintiff’s
contentions, the Commissioner need not “provide any evidence refuting the medical evidence
that [Plaintiff] provided,” “contact the doctors to ask them about the condition,” “hire their own
hand doctor to review [Plaintiff’s] medical evidence” or “write a report about it” — instead, the
onus is on Plaintiff to establish that his impairment is severe. (Pl.’s Opp’n 2.) See Elizabeth S. v.
Comm’r of Soc. Sec., No. 19-CV-6440, 2021 WL 1054371, at *4 (W.D.N.Y. Mar. 19, 2021)
(“[A]lthough the ALJ has a duty to develop the record, ultimately it is the plaintiff’s burden to
prove she is disabled.”); Oliveras ex rel. Gonzalez v. Astrue, No. 07-CV-2841, 2008 WL
2262618, at *7 n.13 (S.D.N.Y. May 30, 2008) (“The ALJ has an affirmative duty to develop the
record, but the burden is ultimately on the plaintiff to prove she has a disability.”), report and
recommendation adopted, 2008 WL 2540816 (S.D.N.Y. June 25, 2008); Goldstein v. Apfel, No.
97-CV-2933, 1998 WL 99562, at *8 (S.D.N.Y. Mar. 5, 1998) (“Although the ALJ is responsible
for developing the record, it is plaintiff’s burden to show that he cannot engage in substantial
gainful activity because of his impairments.”). Plaintiff appears to understand this as he does not
contend that the Administration and/or ALJ Berkowitz failed in their duty to affirmatively
develop the record but instead argues that the information he provided “are sufficient to
corroborate [his] claim.” (Pl.’s Opp’n 3.) The Court is sympathetic to Plaintiff’s contention that
while he “provided the forms for [the Administration] to request information from [his]
providers,” he “can’t control what the doctors provide or if and when they provide information at
all.” (Id. at 2–3.) However, as Plaintiff acknowledges, he can only control the documents and
information he provided, and, unfortunately, he only provided the information of Dr. Kang and
Dr. Ecker.16 (Id.) Moreover, Plaintiff, as stated on the record, refused to testify or otherwise
provide information at the hearings in front of both ALJ Wexler, (R. 38, 61–63), and ALJ
Berkowitz, (id. at 39, 69–70). Therefore, ALJ Berkowitz’s decision was based on the extremely
limited information that Plaintiff provided to the Administration, which did not include records
between March of 2018 and December of 2021, despite both the Administration’s and the
various ALJ’s numerous attempts to help Plaintiff to strengthen his claim. (R. 61–63 (ALJ
Wexler “count[ed] at least 25 attempts to try to contact” Plaintiff to discuss the documents he
submitted and request “additional medical sources”); 63–64 (ALJ Wexler asked Plaintiff to
provide “the names and addresses so that [the Administration] can seek [his medical record]
evidence for [him]” to which he stated he “[did not] have that right here” and “would have to
compile something like that”); 64 (ALJ Wexler stated the Administration had “asked [Plaintiff]
on numerous occasions to give [the Administration] [Plaintiff’s] medical sources,” explaining
that she “can’t make the case for [him]” and her “hands are tied” when the Administration
reaches out to assist Plaintiff in presenting his case but he “choose not to” cooperate); 487
(Plaintiff’s provided list of additional doctors for the Administration to contact in December of
2022, which is hard to read and does not provide addresses, telephone numbers and dates seen);
see also id. at 394–98, 409–11, 490, 497–98 (letters to Plaintiff from the Administration
requesting medical records and a list of his doctors).)
The information provided by Plaintiff’s doctors establishes several physical and
psychological conditions that Plaintiff suffered from — ALJ Berkowitz determined that Plaintiff
suffered from the following medically determinable impairments: right cubital tunnel syndrome,
16 Plaintiff does not argue that ALJ Berkowitz failed to obtain the information from the
additional doctors he named, without addresses or telephone numbers, in his illegible form
provided to the Administration in December of 2022. (R. 39, 487.)
obesity, and bipolar disorder. (R. 41.) Plaintiff correctly argues the information and “documents
are sufficient to corroborate [his] claim[s]” that he has a medically determinable impairment.
(Pl.’s Opp’n 3.) Unfortunately, corroboration of his diagnosed conditions and pain is insufficient
to establish that Plaintiff is entitled to disability benefits — he must establish that he suffers from
a “severe” impairment. See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002)
(“It is insufficient for individuals attempting to prove disability status . . . to merely submit
evidence of a medical diagnosis of an impairment.”), overturned on other grounds by ADA
Amendments Act of 2008, Pub. L. 110-325, 122 Stat. 3553 (Jan. 1, 2009); Ibela v. Allied
Universal, No. 21-1995, 2022 WL 1418886, at *2 (2d Cir. May 5, 2022) (summary order) (“A
diagnosis alone is insufficient to establish disability under the [Social Security Act].”); Acevado
v. Saul, 577 F. Supp. 3d 237, 247 (S.D.N.Y. 2021) (“[T]he mere presence of a disease or
impairment, or establishing that a person has been diagnosed or treated for a disease or
impairment, is not, by itself, sufficient to render a condition ‘severe.’” (quoting Taylor, 32 F.
Supp. 3d at 265)); Allen o/b/o Allen v. Comm’r of Soc. Sec., No. 16-CV-1207, 2017 WL
6001830, at *3 (N.D.N.Y. Dec. 4, 2017) (“A diagnosis may be sufficient to establish a medically
determinable impairment; however, a mere diagnosis does not render a condition severe.”);
Coleman v. Shalal, 895 F. Supp. 50, 53 (S.D.N.Y. 1995) (“The presence of an impairment is thus
not in and of itself disabling within the meaning of the [Social Security] Act.”).
ii. Plaintiff’s physical conditions
Plaintiff first failed to provide further information, explanation, or testimony as to why
his physical conditions, right cubital tunnel syndrome and obesity, were “severe impairments” or
how his physical conditions significantly limit his ability to perform basic work activities. ALJ
Berkowitz’s decision reviewed the available record, which included Plaintiff’s stated complaints,
Dr. Kang’s physical evaluation and notes, and the February of 2018 nerve test study. (R. 42–43.)
ALJ Berkowitz also took into account Plaintiff’s reports that he lived alone, “could prepare food,
clean and do laundry,” “could drive, travel alone, pay bills, and handle his finances,” “went
shopping daily and that he socialized,” but that his condition made it difficult for him to lift and
type. (Id. at 42.) While the medical records noted Plaintiff’s obesity and signs of “mild right
ulnar neuropathy at the elbow (cubital tunnel syndrome),” there were “no subsequent treatment
records and [Plaintiff] would not attend a neurological consultative examination at the agency’s
expense.” (Id. at 43.) Further, given “[t]here are no medical opinions of [Plaintiff’s] functioning
in the case record,” ALJ Berkowitz determined “there [was] insufficient evidence to determine
the extent to which [Plaintiff’s impairments] limit [Plaintiff’s] ability to perform basic work
activities.” (Id.) Therefore, ALJ Berkowitz determined that Plaintiff’s physical conditions were
not “severe” impairments. (Id. at 42–44.)
The Court agrees with ALJ Berkowitz that Plaintiff failed to meet his burden of
establishing he suffered from severe physical impairments given the limited record. See Britt v.
Astrue, 486 F. App’x 161, 163 (2d Cir. 2012) (finding no error in ALJ’s step two finding of non-
severe impairments, where the plaintiff failed to “furnish the ALJ with any medical evidence
showing how [his] alleged impairments limited his ability to work”); Pierro v. Comm’r of Soc.
Sec., No. 18-CV-5478, 2019 WL 3338127, at *5–6 (S.D.N.Y. July 24, 2019) (finding that while
the plaintiff’s listed conditions were present in the plaintiff’s medical records, “the medical
evidence d[id] not show any residual limitation as a result”); Baker v. Comm’r of Soc. Sec., No.
17-CV-1267, 2019 WL 1986517, at *4 (W.D.N.Y. May 6, 2019) (finding the plaintiff failed to
meet her burden of establishing that her conditions, which caused pain, numbness, tingling,
weakness, and fatigue, were “severe impairments because she ha[d] not explained how any of
these conditions significantly limit her ability to perform basic work activities”); see also Acosta
v. Colvin, No. 15-CV-4051, 2016 WL 6952338, at *15 (S.D.N.Y. Nov. 28, 2016) (“An
impairment is not severe if the ‘medical evidence establishes only a slight abnormality or a
combination of slight abnormalities which would have no more than a minimal effect on an
individual’s ability to work.’” (quoting SSR 85-28, 1985 WL 56856, at *2 (Jan. 1, 1985))). The
Court finds ALJ Berkowitz’s determination that Plaintiff’s physical conditions were not severe
impairments was supported by the lack of substantial evidence in the record.
iii. Plaintiff’s psychological conditions
Plaintiff failed to provide further information, explanation, or testimony as to why his
psychological condition and his bipolar disorder, were a “severe impairment” or how his
psychological condition significantly limited any of the broad functional areas specific to
evaluating mental impairments.17 ALJ Berkowitz reviewed the evidence available in the record
including Plaintiff’s intake for psychiatric outpatient care, Dr. Ecker’s notes from his month of
medication evaluation, Dr. Ecker’s diagnosis of bipolar disorder, and Plaintiff’s visit in May of
2018 with a clinical social worker. (R. 43.) ALJ Berkowitz noted there were “no subsequent
treatment records and [Plaintiff] would not attend a psychological consultative examination at
17 As mentioned supra Section I.e., 20 C.F.R § 404.1520a implements a special
technique for evaluating mental impairments. Id. At step two, the ALJ must determine a
claimant’s functional limitation caused by a mental impairment based on a rating of four
functional areas: (1) “understand, remember, or apply information”; (2) “interact with others”;
(3) “concentrate, persist, or maintain pace”; and (4) “adapt or manage oneself.” Id. §
404.1520a(b), (c)(3). The ALJ will rate the claimant’s degree of limitation in these areas using a
five-point scale: none, mild, moderate, marked, and extreme. Id. § 404.1520a(c)(4). If the ALJ
rates the degree of limitation as none or mild, the impairment is considered not severe, “unless
the evidence otherwise indicates that there is more than a minimal limitation in [the claimant’s]
ability to do basic work activities.” Id. § 404.1520a(d); see Nunez, 164 F.4th at 67–68
(explaining the technique for a reviewing authority to determine whether a claimant as a
“medically determinable [ ] mental impairment” at step two); Tanya R. v. Comm’r of Soc. Sec.,
No. 24-CV-9076, 2026 WL 791256, at *17 (S.D.N.Y. Mar. 22, 2026) (same).
the agency’s expense.” (Id.) ALJ Berkowitz also took into account Plaintiff’s reports that he
lived alone, “could prepare food, clean and do laundry,” “could drive, travel alone, pay bills, and
handle his finances,” and “went shopping daily and that he socialized.” (Id. at 42.) ALJ
Berkowitz then analyzed the four functional areas and found the following: (1) Plaintiff had no
limitation in the first area of “understanding, remembering or applying information”; (2) Plaintiff
had no limitation in the second area of “interacting with others”; (3) Plaintiff had no limitation in
the third functional area of “concentrating, persisting or maintaining pace”; and (4) Plaintiff had
no limitation in the fourth functional area of “adapting or managing oneself.” (Id. at 44.)
Therefore, ALJ Berkowitz determined that “[b]ecause [Plaintiff’s] medically determinable
mental impairment caused no limitations in any of the functional areas and the evidence does not
otherwise indicate that there is more than a minimal limitation in the claimant’s ability to do
basic work activities, it was non-severe.” (Id.)
The Court agrees with ALJ Berkowitz that Plaintiff failed to meet his burden of
establishing that he suffered from severe psychological impairments given the limited record.
See Dean F. v. Comm’r of Soc. Sec., No. 20-CV-1597, 2022 WL 4279189, at *4 (W.D.N.Y. Sep.
15, 2022) (affirming ALJ’s decision that the plaintiff’s medically determinable mental
impairment was non-severe as it was caused by “no more than a ‘mild’ limitation in any of the
functional areas”); Jane M.A. v. Comm’r of Soc. Sec., No. 19-CV-808, 2021 WL 63066, at *4
(W.D.N.Y. Jan. 7, 2021) (affirming ALJ decision where the medical record supported finding the
plaintiff’s impairment functionally limited her only mildly in three of the four broad functional
areas and therefore was non-severe). The Court finds that ALJ Berkowitz’s determination that
Plaintiff’s psychological conditions were not severe was supported by the lack of substantial
evidence in the record.
iv. Plaintiff’s carpal tunnel syndrome
In addressing Plaintiff’s carpal tunnel syndrome, ALJ Berkowitz determined the
condition was “not established in the record as a medically determinable impairment.” (R. 42.)
Plaintiff contends that the Commissioner “provided no evidence to contradict the Hospital for
Special Surgery,” “did not request an evaluation by a doctor who [Plaintiff] chose which they
could watch,” and “provided no contrary reports from another expert or even interviewed the
doctors for further explanation if they doubted their diagnosis.” (Pl.’s Opp’n 2–3.) Plaintiff is
incorrect as he holds the burden to establish his condition constitutes a severe impairment. See
discussion supra Section II.c.i. Examining the record, the documents and information provided
by both Plaintiff and Dr. Kang establish that Plaintiff was “diagnosed” with carpal tunnel
syndrome prior to the alleged onset date of Plaintiff’s disability; Plaintiff visited Dr. Kang on
September 5, 2017 and had a nerve test conducted on February 20, 2018, while his social
security disability claim alleges an onset date of March 16, 2018. (See R. 43.) Plaintiff failed to
provide any information or documentation to establish that he suffered from this condition
during the period of disability as the record lacks any medical records between March of 2018
and December of 2021. Similarly, Plaintiff’s contention that his “condition has worsened since”
his insurance was cancelled, (Pl.’s Opp’n 2), does not address the period of time between the
alleged onset date and the date his insurance ended.18
Moreover, Plaintiff has failed to establish that he was even diagnosed with the condition.
Other than the “likely” diagnosis of carpal tunnel syndrome by Dr. Kang, which alone is
18 As explained infra, even if Plaintiff argues that his condition worsened during the
alleged period of disability, such allegation is insufficient by itself to establish a severe
impairment.
insufficient, (see discussion infra), Plaintiff submitted a nerve study which found that Plaintiff
suffered from cubital tunnel syndrome, an entirely different diagnosis.19 (R. at 43, 513.) The
record does not contain any other objective medical evidence establishing Plaintiff’s carpal
tunnel syndrome. Therefore, ALJ Berkowitz’s determination that Plaintiff did not establish
carpal tunnel syndrome as a medically determinable impairment is supported by the lack of
record. See Flanigan v. Colvin, 21 F. Supp. 3d 285, 301–02 (S.D.N.Y. 2014) (finding the ALJ’s
conclusion “that medically determinable impairment could not be established from [the
plaintiff’s] alleged onset date through his date last insured” was supported by the absence from
the “medical record [of] objective findings or evidence of treatment”).
Even if Plaintiff had established his carpal tunnel syndrome as a medically determinable
impairment during the period of alleged disability, the lack of any other supporting
documentation or testimony in the record fails to establish that the impairment would be
considered severe because it impacted Plaintiff’s ability to perform basic work functions. See
Karam v. Colvin, No. 14-CV-6076, 2015 WL 3868542, at *7 (W.D.N.Y. June 23, 2015)
(affirming ALJ decision finding “plaintiff ha[d] failed to establish a diagnosis of carpal tunnel
syndrome or demonstrate what effect the specific symptoms of his condition ha[d] on his ability
to perform basic work activities”); Pearson v. Astrue, No. 10-CV-521, 2012 WL 527675, at *11
(N.D.N.Y. Feb. 17, 2012) (“Even though plaintiff was diagnosed with carpal tunnel syndrome,
plaintiff failed to demonstrate that his carpal tunnel syndrome significantly limited his ability to
19 ALJ Berkowitz determined that Plaintiff’s cubital tunnel syndrome was a medically
determinable impairment. (R. 41.) Cubital tunnel syndrome is different from carpal tunnel
syndrome — both are types of peripheral neuropathy. See Sheila C. v. O’Malley, No. 24-CV-2,
2025 WL 25501, at *8 (D. Conn. Jan. 3, 2025). See discussion supra Section II.c.ii as to the
Court’s review of ALJ Berkowitz’s determination that Plaintiff’s cubital tunnel syndrome was a
non-severe impairment.
do basic work activities.”). Plaintiff’s submitted nerve study, which found largely normal
findings with the exception of “mild right ulnar neuropathy at the elbow (cubital tunnel
syndrome) that has resulted in mild neuropraxia,” fails to demonstrate how Plaintiff was limited
by the condition. (R. at 43, 513.) There is no objective medical evidence in the record opining
on the issue of Plaintiff’s abilities while suffering from this impairment. Therefore, Plaintiff has
failed to establish how this condition resulted “in significant work-related limitations.” Bailey v.
Berryhill, No. 18-CV-13, 2019 WL 427320, at *3 (D. Conn. Feb. 4, 2019) (finding the plaintiff
“failed to establish that these conditions result[ed] in significant-work related limitations such
that the ALJ erred in not finding them severe” where nerve studies revealed largely normal
findings with one exception and the objective medical evidence did not establish the condition as
severe); see Cheryl S. v. Saul, No. 20-CV-378, 2021 WL 1893474, at *3 (W.D.N.Y. May 11,
2021) (affirming ALJ decision where “the record contain[ed] no persuasive proof that plaintiff’s
carpal tunnel syndrome caused any limitations to her ability to perform work-related functions”
or any “indication that such limitations existed for a time period sufficient to satisfy the 12-
month durational requirement”).
Plaintiff’s argument that his visit to Dr. Kang, her resulting diagnosis of “likely” carpal
tunnel syndrome, and the administered steroid injection “surgery” supports finding an
impairment is unpersuasive and not supported by case law. (Pl.’s Opp’n 2.) First, “[t]he mere
presence of an impairment, or that a person has been diagnosed and/or treated for an impairment
is not, by itself sufficient to render a condition severe.” Ronald S. v. Comm’r of Soc. Sec., No.
20-CV-1688, 2022 WL 3716568, at *11 (W.D.N.Y. Aug. 29, 2022) (citing Prince, 514 F. App’x
at 20) (affirming ALJ’s finding where the record reflected “little to no symptoms” of the alleged
impairment or limitations impacting the plaintiff’s ability to perform basic functions); see
Lambert v. Comm’r of Soc. Sec., No. 20-CV-2467, 2021 WL 11715453, at *7–9 (E.D.N.Y. Sep.
30, 2021) (finding the plaintiff’s diagnosed impairments as non-severe because the record did not
establish treatment or that the pain significantly limited plaintiff’s ability to do basic work
activities); see also Acevado, 577 F. Supp. 3d at 247 (“[T]he mere presence of a disease or
impairment, or establishing that a person has been diagnosed or treated for a disease or
impairment, is not, by itself, sufficient to render a condition ‘severe.’” (quoting Taylor, 32 F.
Supp. 3d at 265)); Allen o/b/o Allen, 2017 WL 6001830, at *3 (“A diagnosis may be sufficient to
establish a medially determinable impairment, however, a mere diagnosis does not render a
condition severe.”); Gallegos v. Colvin, No. 13-CV-393, 2014 WL 4635418, at *18 (D. Conn.
Sep. 11, 2014) (“The mere diagnosis of an impairment says nothing about the severity of the
condition.”). Second, even the fact that “a claimant had surgery has no bearing on the severity of
an impairment; it is the functional impact of the impairment that is of import.” Ronald S., 2022
WL 3716568, at *12; see Karen H. v. Kijakazi, No. 20-CV-335, 2021 WL 3513829, at *2
(W.D.N.Y. Aug. 10, 2021) (affirming ALJ’s finding that the plaintiff’s carpal tunnel syndrome
was not severe because it did not cause significant functional limitations despite the fact that the
plaintiff had surgery during the relevant period). Lastly, Plaintiff’s contention that his “condition
has worsened since” his insurance was cancelled, explaining a new symptom he now suffers,
(Pl.’s Opp’n 2), is insufficient for two reasons: (1) he only presents this argument to the Court in
his opposition briefing to the Commissioner’s cross-motion and did not present it to ALJ
Berkowitz as Plaintiff refused to testify; and (2) because a plaintiff’s subjective complaints are
not enough to establish a severe impairment. See 20 C.F.R. § 404.1521 (“[A] physical or mental
impairment must be established by medical evidence from an acceptable medical source. We
will not use your statement of symptoms, a diagnosis, or a medical opinion to establish the
existence of an impairment(s).”). In fact, the record is replete with Plaintiff’s subjective
complaints and personal comments on his carpal tunnel syndrome, but this is alone insufficient
to establish a severe impairment. See Jose R. v. Kijakazi, No. 20-CV-918, 2021 WL 5826375, at
*3 (N.D.N.Y. Dec. 8, 2021) (finding the ALJ’s determination that the plaintiff did not suffer
from a medically determinable impairment supported where the plaintiff’s statements at the
hearing were alone insufficient to establish he had a severe impairment sufficiently and the
plaintiff otherwise did not submit medical evidence or information to document his impairment
or his treatment for the condition); Bowden v. Comm’r of Soc. Sec., No. 18-CV-82, 2019 WL
3027803, at *4 (W.D.N.Y. July 11, 2019) (affirming ALJ decision where the plaintiff did not
meet her burden of presenting evidence that the impairment was severe as the record did not
offer evidence supporting plaintiff’s subjective complaints). Similar to his other conditions, the
record reflects an absence of any medical information, evidence, or testimony to establish that
Plaintiff’s carpal tunnel syndrome was a medically determinable condition and/or that it could
have been found to be “severe.” See Hastrich v. Comm’r of Soc. Sec., 366 F. Supp. 3d 388, 399
(W.D.N.Y. 2019) (affirming ALJ’s decision finding “[d]espite [the p]laintiff’s complaints, there
[was] no objective evidence in the record [to] support that [the p]laintiff’s bilateral carpal tunnel
syndrome qualifie[d] as a severe impairment”); House v. Comm’r of Soc. Sec., No. 15-CV-1064,
2016 WL 4275732, at *9 (N.D.N.Y. Aug. 12, 2016) (affirming ALJ’s decision finding the
plaintiff failed to demonstrate a medically determinable impairment of carpal tunnel syndrome
where she was not diagnosed with carpal tunnel syndrome and the nerve tests were equivocal or
negative for carpal tunnel syndrome).
Therefore, ALJ Berkowitz’s determination that Plaintiff was not disabled because he did
not have any severe impairments is supported by the lack of substantial medical evidence in the
record. See Flanigan, 21 F. Supp. 3d at 301 (“A finding that a condition is not severe means that
the plaintiff is not disabled, and the Administrative Law Judge’s inquiry stops at the second level
of the five-step sequential evaluation process.” (quoting Rosario v. Apfel, No. 97-CV-5759, 1999
WL 294727, at *5 (E.D.N.Y. Mar. 19, 1999))). The Court finds that Plaintiff’s objection to ALJ
Berkowitz’s disability decision is without merit.
III. Conclusion
For the foregoing reasons, the Court denies Plaintiff’s motion for judgment on the
pleadings and grants the Commissioner’s cross-motion for judgment on the pleadings. The Clerk
of Court is directed to close this case.
Dated: June 9, 2026
Brooklyn, New York
SO ORDERED:
/s/MKB
MARGO K. BRODIE
United States District Judge