AHMED v. COMMISSIONER OF SOCIAL SECURITY

Filing 19

OPINION and Order filed. Signed by Magistrate Judge Norah McCann King (OHSD) on 5/6/2022. (DS, )

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MUHAMMED A.,
Plaintiff,

Case No. 2:20-cv-13944
Magistrate Judge Norah McCann King

v.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant.

OPINION AND ORDER
This matter comes before the Court pursuant to Section 205(g) of the Social Security Act,
as amended, 42 U.S.C. § 405(g), regarding the application of Plaintiff Muhammed A. for
Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq.
Plaintiff appeals from the final decision of the Acting Commissioner of Social Security denying
that application.1 After careful consideration of the entire record, including the entire
administrative record, the Court decides this matter pursuant to Rule 78(b) of the Federal Rules
of Civil Procedure and Local Civil Rule 9.1(f). For the reasons that follow, the Court reverses the
Commissioner’s decision and remands the action for further proceedings.
I.

PROCEDURAL HISTORY
On November 28, 2017, Plaintiff filed his application for benefits, alleging that he has

been disabled since October 20, 2017. R. 67, 77, 147–48. The application was denied initially
and upon reconsideration. R. 79–83, 89–91. Plaintiff sought a de novo hearing before an

Kilolo Kijakazi, the Acting Commissioner of Social Security, is substituted as Defendant in her
official capacity. See Fed. R. Civ. P. 25(d).
1
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administrative law judge. R. 92–93. Administrative Law Judge (“ALJ”) Leonard Costa held a
hearing on June 10, 2019, at which Plaintiff, who was represented by counsel, testified, as did a
vocational expert. R. 29–58. In a decision dated July 25, 2019, the ALJ concluded that Plaintiff
was not disabled within the meaning of the Social Security Act from October 20, 2017, his
alleged disability onset date, through the date of that decision. R. 15–23. That decision became
the final decision of the Commissioner of Social Security when the Appeals Council declined
review on August 7, 2020. R. 1–6. Plaintiff timely filed this appeal pursuant to 42 U.S.C. §
405(g). ECF No. 1. On April 6, 2021, Plaintiff consented to disposition of the matter by a United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil
Procedure. ECF No. 8. 2 On April 7, 2021, the case was reassigned to the undersigned. ECF No.
9. The matter is ripe for disposition.
II.

LEGAL STANDARD
A.

Standard of Review

In reviewing applications for Social Security disability benefits, this Court has the
authority to conduct a plenary review of legal issues decided by the ALJ. Knepp v. Apfel, 204
F.3d 78, 83 (3d Cir. 2000). In contrast, the Court reviews the ALJ’s factual findings to
determine if they are supported by substantial evidence. Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000); see also 42 U.S.C. §§ 405(g), 1383(c)(3). The United States Supreme Court has
explained this standard as follows:
Under the substantial-evidence standard, a court looks to an existing administrative
record and asks whether it contains sufficien[t] evidence to support the agency’s
factual determinations. And whatever the meaning of substantial in other contexts,
the threshold for such evidentiary sufficiency is not high. Substantial evidence, this
2

The Commissioner has provided general consent to Magistrate Judge jurisdiction in cases
seeking review of the Commissioner’s decision. See Standing Order In re: Social Security Pilot
Project (D.N.J. Apr. 2, 2018).
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Court has said, is more than a mere scintilla. It means – and means only – such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.
Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations and quotation marks
omitted); see also Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citation and internal
quotations omitted); Bailey v. Comm’r of Soc. Sec., 354 F. App’x 613, 616 (3d Cir. 2009)
(citations and quotations omitted); K.K. ex rel. K.S. v. Comm’r of Soc. Sec., No. 17-2309, 2018
WL 1509091, at *4 (D.N.J. Mar. 27, 2018).
The substantial evidence standard is a deferential standard, and the ALJ’s decision cannot
be set aside merely because the Court “acting de novo might have reached a different
conclusion.” Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986); see, e.g., Fargnoli
v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where the ALJ’s findings of fact are supported
by substantial evidence, we are bound by those findings, even if we would have decided the
factual inquiry differently.”) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)); K.K.,
2018 WL 1509091, at *4 (“‘[T]he district court ... is [not] empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.’”) (quoting Williams v. Sullivan, 970 F.2d
1178, 1182 (3d Cir. 1992)).
Nevertheless, the Third Circuit cautions that this standard of review is not “a talismanic
or self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)
(“The search for substantial evidence is thus a qualitative exercise without which our review of
social security disability cases ceases to be merely deferential and becomes instead a sham.”);
see Coleman v. Comm’r of Soc. Sec., No. 15-6484, 2016 WL 4212102, at *3 (D.N.J. Aug. 9,
2016). The Court has a duty to “review the evidence in its totality” and “take into account
whatever in the record fairly detracts from its weight.” K.K., 2018 WL 1509091, at *4 (quoting
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Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (citations and quotations omitted));
see Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (stating that substantial evidence exists
only “in relationship to all the other evidence in the record”). Evidence is not substantial if “it is
overwhelmed by other evidence,” “really constitutes not evidence but mere conclusion,” or
“ignores, or fails to resolve, a conflict created by countervailing evidence.” Wallace v. Sec’y of
Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing Kent, 710 F.2d at 114); see
K.K., 2018 WL 1509091, at *4. The ALJ’s decision thus must be set aside if it “did not take into
account the entire record or failed to resolve an evidentiary conflict.” Schonewolf, 972 F. Supp.
at 284-85 (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).
Although an ALJ is not required “to use particular language or adhere to a particular
format in conducting [the] analysis,” the decision must contain “sufficient development of the
record and explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d
501, 505 (3d Cir. 2004) (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119 (3d Cir.
2000)); see K.K., 2018 WL 1509091, at *4. The Court “need[s] from the ALJ not only an
expression of the evidence s/he considered which supports the result, but also some indication of
the evidence which was rejected.” Cotter, 642 F.2d at 705-06; see Burnett, 220 F.3d at 121
(“Although the ALJ may weigh the credibility of the evidence, [s/]he must give some indication
of the evidence which [s/]he rejects and [the] reason(s) for discounting such evidence.”) (citing
Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999)). “[T]he ALJ is not required to supply a
comprehensive explanation for the rejection of evidence; in most cases, a sentence or short
paragraph would probably suffice.” Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981). Absent
such articulation, the Court “cannot tell if significant probative evidence was not credited or
simply ignored.” Id. at 705. As the Third Circuit explains:
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Unless the [ALJ] has analyzed all evidence and has sufficiently explained the
weight [s/]he has given to obviously probative exhibits, to say that [the] decision is
supported by substantial evidence approaches an abdication of the court’s duty to
scrutinize the record as a whole to determine whether the conclusions reached are
rational.
Gober, 574 F.2d at 776; see Schonewolf, 972 F. Supp. at 284-85.
Following review of the entire record on appeal from a denial of benefits, the Court can
enter “a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or
without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Remand is appropriate if the
record is incomplete or if the ALJ’s decision lacks adequate reasoning or contains illogical or
contradictory findings. See Burnett, 220 F.3d at 119-20; Podedworny v. Harris, 745 F.2d 210,
221-22 (3d Cir. 1984). Remand is also appropriate if the ALJ’s findings are not the product of a
complete review which “explicitly weigh[s] all relevant, probative and available evidence” in the
record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted); see
A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp.3d 512, 518 (D.N.J. 2016). A decision to “award
benefits should be made only when the administrative record of the case has been fully
developed and when substantial evidence on the record as a whole indicates that the claimant is
disabled and entitled to benefits.” Podedworny, 745 F.2d at 221-22 (citation and quotation
omitted); see A.B., 166 F. Supp.3d at 518.
B.

Sequential Evaluation Process

The Social Security Act establishes a five-step sequential evaluation process for
determining whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). “The claimant bears the burden of proof at steps one through
four, and the Commissioner bears the burden of proof at step five.” Smith v. Comm’r of Soc.

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Sec., 631 F.3d 632, 634 (3d Cir. 2010) (citing Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92
(3d Cir. 2007)).
At step one, the ALJ determines whether the plaintiff is currently engaged in substantial
gainful activity. 20 C.F.R. § 404.1520(b). If so, then the inquiry ends because the plaintiff is not
disabled.
At step two, the ALJ decides whether the plaintiff has a “severe impairment” or
combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability
to do basic work activities[.]” 20 C.F.R. § 404.1520(c). If the plaintiff does not have a severe
impairment or combination of impairments, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to step three.
At step three, the ALJ decides whether the plaintiff’s impairment or combination of
impairments “meets” or “medically equals” the severity of an impairment in the Listing of
Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §
404.1520(d). If so, then the plaintiff is presumed to be disabled if the impairment or combination
of impairments has lasted or is expected to last for a continuous period of at least 12 months. Id.
at § 404.1509. Otherwise, the ALJ proceeds to step four.
At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”)
and determine whether the plaintiff can perform past relevant work. 20 C.F.R. § 404.1520(e), (f).
If the plaintiff can perform past relevant work, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to the final step.
At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC,
age, education, and work experience, can perform other jobs that exist in significant numbers in
the national economy. 20 C.F.R. § 404.1520(g). If the ALJ determines that the plaintiff can do
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so, then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be disabled if the
impairment or combination of impairments has lasted or is expected to last for a continuous
period of at least twelve months.
III.

ALJ DECISION AND APPELLATE ISSUES
Plaintiff was 46 years old on his alleged disability onset date. R. 21. Plaintiff meets the

insured status requirements of the Social Security Act through December 31, 2022. R. 17. At
step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity between
October 20, 2017, his alleged disability onset date, and the date of the decision. Id.
At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
status post myocardial infarction time two; defibrillator implant; chronic ischemic heart disease;
status post excision of cyst, and bursitis of the left shoulder. Id. The ALJ also found that
Plaintiff’s diagnosed diabetes mellitus, type 2, and hypertension were not severe. Id.
At step three, the ALJ found that Plaintiff did not suffer an impairment or combination of
impairments that met or medically equaled the severity of any Listing. R. 17–18.
At step four, the ALJ found that Plaintiff had the RFC to perform sedentary work subject
to various additional limitations. R. 18–21. The ALJ also found that this RFC did not permit the
performance of Plaintiff’s past relevant work as a press operator. R. 21.
At step five, the ALJ found that a significant number of jobs—i.e., approximately 10,302
jobs as an order clerk; approximately 12,849 jobs as a touch-up screener, printed circuit board
assembler; and approximately 49.479 jobs as a document preparer—existed in the national
economy and could be performed by an individual with Plaintiff’s vocational profile and RFC.
R. 22. The ALJ therefore concluded that Plaintiff was not disabled within the meaning of the
Social Security Act from October 20, 2017, his alleged disability onset date, through the date of
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the decision. R. 23.
Plaintiff disagrees with the ALJ’s findings at step four and asks that the decision of the
Commissioner be reversed and remanded with directions for the granting of benefits or,
alternatively, for further proceedings. Plaintiff’s Memorandum of Law, ECF No. 15; Plaintiff’s
Reply Brief, ECF No. 18. The Acting Commissioner takes the position that the decision should
be affirmed in its entirety because the ALJ’s decision correctly applied the governing legal
standards, reflected consideration of the entire record, and was supported by sufficient
explanation and substantial evidence. Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF
No. 17.
IV.

SUMMARY OF RELEVANT MEDICAL EVIDENCE
On April 2, 2019, Joseph Vitale, M.D., Plaintiff’s treating physician, completed a six-

page, fill-in-the-blank, check-the-box, medical source statement. R. 899–904. Dr. Vitale
assessed Plaintiff’s ability to do work-related activities on a regular and continuing basis
(defined as “8 hours a day, for 5 days a week, or an equivalent work schedule”) using the
following terms: occasionally, which “means very little to one-third of the time”; frequently,
which “means from one-third to two-thirds of the time”; and continuously, which “means more
than two-thirds of the time.” R. 899. Dr. Vitale opined that Plaintiff could never lift or carry any
weight, id., could sit for one hour at a time for a total of eight hours in an eight-hour workday,
could stand for ten minutes at a time for a total of 80 minutes in an eight-hour workday, and
could walk for five minutes at a time for a total of 40 minutes in an eight-hour workday. R. 900.
Plaintiff does not require the use of a cane to ambulate. Id. Dr. Vitale went on to opine that
Plaintiff could occasionally reach (overhead and in all other directions), handle, finger, feel, and
push/pull with his right (dominant) hand, but could never reach (overhead or in any other
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direction), handle, finger, feel, or push/pull with his left hand. R. 901. Dr. Vitale noted that the
defibrillator in Plaintiff’s left side and the fact that a large tumor had been removed from
Plaintiff’s left shoulder supported these limitations. Id. Dr. Vitale further opined that Plaintiff
could occasionally operate foot controls bilaterally and that Plaintiff’s heart disease, including
three heart attacks and one cardiac arrest, supported this limitation. Id. Dr. Vitale opined that
Plaintiff could never climb stairs and ramps, ladders or scaffolds, balance, stoop, kneel, crouch,
or crawl, as a result of Plaintiff’s cardiac arrest. R. 902. Plaintiff could never tolerate exposure to
unprotected heights, moving mechanical parts, operating a motor vehicle, humidity and wetness,
dust, odors, fumes, and pulmonary irritants, extreme cold, extreme heat, and vibrations. R. 903.
Plaintiff could tolerate quiet or moderate noise conditions (such as a library or office) but could
not tolerate loud or very loud conditions (such as heavy traffic or a jackhammer). Id. Because of
Plaintiff’s prior heart attacks, Plaintiff could not perform such activities as shopping, travel
without a companion for assistance, ambulating without using a wheelchair, walker, or two canes
or two crutches, or walking a block at a reasonable pace on rough or uneven surfaces, or using
standard public transportation; but Plaintiff could climb a few steps at a reasonable pace with the
use of a single hand rail, prepare a simple meal and feed himself, care for his personal hygiene,
and sort, handle, and use paper/files. R. 904. According to Dr. Vitale, Plaintiff’s limitations first
presented on October 20, 2017, and would last for twelve consecutive months. Id.
V.

DISCUSSION
Plaintiff argues that substantial evidence does not support the ALJ’s RFC determination

because the ALJ failed to properly evaluate Dr. Vitale’s opinions. Plaintiff’s Memorandum of
Law, ECF No. 15, pp. 13–24; Plaintiff’s Reply Brief, ECF No. 18, pp. 1–6. This Court agrees.

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A claimant’s RFC is the most that the claimant can do despite his limitations. 20 C.F.R. §
404.1545(a)(1). At the administrative hearing stage, the administrative law judge is charged with
determining the claimant’s RFC. 20 C.F.R. § 404.1546(c); see also Chandler v. Comm’r of Soc.
Sec., 667 F.3d 356, 361 (3d Cir. 2011) (“The ALJ—not treating or examining physicians or State
agency consultants—must make the ultimate disability and RFC determinations.”) (citations
omitted). When determining a claimant’s RFC, the ALJ has a duty to consider all the evidence.
Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). However, the ALJ need include only
“credibly established” limitations. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005); see
also Zirnsak v. Colvin, 777 F.3d 607, 615 (3d Cir. 2014) (stating that the ALJ has discretion to
choose whether to include “a limitation [that] is supported by medical evidence, but is opposed
by other evidence in the record” but “[t]his discretion is not unfettered—the ALJ cannot reject
evidence of a limitation for an unsupported reason” and stating that “the ALJ also has the
discretion to include a limitation that is not supported by any medical evidence if the ALJ finds
the impairment otherwise credible”).
In the case presently before the Court, the ALJ determined that Plaintiff had the RFC to
perform a limited range of sedentary work, as follows:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform sedentary work as defined in 20 CFR
404.1567(a) except the claimant can occasionally climb ramps and stairs, stoop,
kneel, crouch balance or crawl; never climb ladders, ropes or scaffolds;
occasionally push/pull controls with the upper left extremity; do no overhead
reaching with the left extremity; have no exposure to unprotected heights or
hazardous machinery; can have no exposure to extremes in environmental
conditions; can understand, remember and carry out simple instructions with only
occasional changes to essential job functions and can to make simple work -related
decisions; can occasionally reach in all directions with the upper left non dominate
extremity.

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R. 18 (emphasis added). As previously noted, the ALJ must evaluate all record evidence in
making a disability determination. Plummer, 186 F.3d at 433; Cotter, 642 F.2d at 704. The
ALJ’s decision must include “a clear and satisfactory explication of the basis on which it rests”
sufficient to enable a reviewing court “to perform its statutory function of judicial review.”
Cotter, 642 F.2d at 704–05. Specifically, the ALJ must discuss the evidence that supports the
decision, the evidence that the ALJ rejected, and explain why the ALJ accepted some evidence
but rejected other evidence. Id. at 705–06; Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 505–06
(3d Cir. 2009); Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001) (“Although we do not
expect the ALJ to make reference to every relevant treatment note in a case . . . we do expect the
ALJ, as the factfinder, to consider and evaluate the medical evidence in the record consistent
with his responsibilities under the regulations and case law.”). Without this explanation, “the
reviewing court cannot tell if significant probative evidence was not credited or simply ignored.”
Cotter, 642 F.2d at 705; see also Burnett, 220 F.3d at 121 (citing Cotter, 642 F.2d at 705).
For claims filed after March 27, 2017,3 the regulations eliminated the hierarchy of
medical source opinions that gave preference to treating sources. Compare 20 C.F.R. § 404.1527
with 20 C.F.R. § 404.1520c(a) (providing, inter alia, that the Commissioner will no longer “defer
or give any specific evidentiary weight, including controlling weight, to any medical opinion(s)
or prior administrative medical finding(s), including those from [the claimant’s] medical
sources”). Instead, the Commissioner will consider the following factors when considering all
medical opinions: (1) supportability; (2) consistency; (3) relationship with the claimant,
including the length of the treating examination, the frequency of examinations, and the purpose
of the treatment relationship; (4) the medical source’s specialization; and (5) other factors,

3

As previously noted, Plaintiff’s claim was filed on November 28, 2017.
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including, but not limited to, “evidence showing a medical source has familiarity with the other
evidence in the claim or an understanding of our disability program's policies and evidentiary
requirements.” 20 C.F.R. § 404.1520c(c).
The regulations emphasize that “the most important factors [that the ALJ and
Commissioner] consider when [] evaluat[ing] the persuasiveness of medical opinions and prior
administrative medical findings are supportability (paragraph (c)(1) of this section) and
consistency (paragraph (c)(2) of this section).” Id. at § 404.1520c(a). As to the supportability
factor, the regulations provide that “[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). As to the consistency
factor, the regulations provide that “[t]he more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical sources 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).
The applicable regulations also require the ALJ to articulate his “consideration of medical
opinions and prior administrative medical findings” and to articulate in the “determination or
decision how persuasive [he] find[s] all of the medical opinions and all of the prior
administrative medical findings in [the claimant’s] case record.” Id. at § 404.1520c(b).
“Specifically, the ALJ must explain how he considered the ‘supportability’ and ‘consistency’
factors for a medical source’s opinion. . . . The ALJ may—but is not required to—explain how
he considered the remaining factors.” Michelle K. v. Comm’r of Soc. Sec., No. 1:19-CV-01567,

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2021 WL 1044262, at *4 (W.D.N.Y. Mar. 19, 2021) (citing 20 C.F.R. §§ 404.1520c(b)(2),
416.920c(b)(2)).
In this case, the ALJ found that some portions of Dr. Vitale’s opinion were not persuasive
and that other portions were persuasive, reasoning as follows:
In an April 2, 2019 medical source statement of ability to do work related activities,
Dr. Vitale reported that the claimant had the abilities to lift and carry no weight, sit
for eight hours, stand for 80 minutes and walk for 40 minutes in an eight-hour
workday. He also reported that due to the defibrillator in his left chest, the claimant
could never reach (in all directions), handle, finger, feel or push and/or pull with
the left hand, but could occasionally do these things with the right hand. He noted
that the clamant could occasionally use foot controls. He also noted that the
claimant could never climb stairs, ramps, ladders, scaffolds, balance, stoop, kneel,
crouch or crawl. The doctor also noted that the claimant should avoid unprotected
heights, moving mechanical parts, operating a motor vehicle, humidity and
wetness, dust, odors, fumes and pulmonary irritants as well as extreme cold,
extreme heat and vibrations. The doctor reported that the claimant would not be
able to shop, travel without assistance, walk without using an assistive device, walk
at reasonable pace, use public transportation, climb a few steps, but that he would
be able to prepare a simple meal and perform personal hygiene (Exhibit 8F).
I do not find this opinion to be persuasive with regard to the postural limitations as
the limitations are not supported by the overall record. The record does not support
such extreme limitations. The overall limitations are extreme when weighed against
the medical evidence. Of note, February 2019 chest x-ray showed no evidence of
active pulmonary disease. The claimant was noted to be stable from a cardiac
standpoint (Exhibit 13F). While he was limited for a short time due to a left shoulder
mass and left shoulder pain, he was noted to have pain of only three out of 10 and
he reported some improvement with physical therapy (Exhibit 16F). I find his
opinion with regard to sitting for eight hours to be persuasive as it is not inconsistent
with expected heart impairment limitations.
R. 20–21 (emphasis added).
In challenging the ALJ’s consideration in this regard, Plaintiff contends, inter alia, that
the ALJ did not sufficiently explain why he found Dr. Vitale’s postural limitations to be
unsupported. Plaintiff’s Memorandum of Law, ECF No. 15, pp. 16–17 (citations to the record
omitted); Plaintiff’s Reply Brief, ECF No. 18, pp. 3, 5–6. Plaintiff specifically argues that the
ALJ simply concludes that such limitations “are not supported by the overall record” without
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providing any analysis as to supportability or citing to any evidence, as is required by the new
regulations, and that the ALJ does not refer to any of Dr. Vitale’s own treatment notes. Id.
Plaintiff also argues that the ALJ wholly failed to explain how Dr. Vitale’s opinion regarding
postural limitations is inconsistent with any record evidence. Id. In response, the Acting
Commissioner does not specifically address Plaintiff’s arguments regarding the ALJ’s
consideration of Dr. Vitale’s opinion about postural limitations. Defendant’s Brief Pursuant to
Local Civil Rule 9.1, ECF No. 17, pp. 8–9.
Plaintiff’s arguments are well taken. As Plaintiff points out, the ALJ simply concluded
that Dr. Vitale’s opinion regarding postural limitations was not persuasive because such
limitations “are not supported by the overall record. The record does not support such extreme
limitations.” R. 21. The ALJ provides no citation to the record—including to Dr. Vitale’s own
treatment notes—to support this conclusion. Id. Nor does the ALJ explain how he considered the
required factors of supportability and consistency. Id.
“The new regulations promulgated by the Social Security Administration set forth a
‘minimum level of articulation’ to be provided in determinations and decisions, in order to
‘provide sufficient rationale for a reviewing adjudicator or court.’” Warren I. v. Comm’r of Soc.
Sec., No. 5:20-CV-495, 2021 WL 860506, at *8 (N.D.N.Y. Mar. 8, 2021) (quoting 82 FR 584401, and citing 20 C.F.R. §§ 404.1520c(b) and 416.920c(b)). As this Court’s summary of the
evidence set forth above makes clear, “the ALJ’s failure in this case to meet these minimum
levels of articulation frustrates this court’s ability to determine whether [his] disability
determination was supported by substantial evidence.” Id.; see also Brownsberger v. Kijakazi,
No. 3:20-CV-01426, 2022 WL 178819, at *6–7 (M.D. Pa. Jan. 18, 2022) (finding that substantial
evidence did not support the ALJ’s assessment of medical opinions where the ALJ “makes no
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effort to compare or support their opinions with the record. . . . The ALJ does not provide any
citations to specific evidence on the record to explain his reasoning and does not explain how he
evaluated the opinions regarding the supportability and consistency factors”); Jaleesa H. v.
Comm’r of Soc. Sec., No. 1:20-CV-01180 EAW, 2022 WL 174337, at *5–6 (W.D.N.Y. Jan. 18,
2022) (stating that, under the new regulations, the ALJ “is still required to articulate how he
considered the medical opinion, including explaining how he considered the ‘supportability’ and
‘consistency’ factors” and that the ALJ in that case “did not explain anything—instead, he made
a conclusory statement that Dr. Fabiano’s opinion was ‘generally consistent and supportive,’
without any explanation of how he assessed the opinion in connection with the consistency and
supportability factors which, as explained above, is required by the new regulations”); Nicole L.
v. Kijakazi, No. 6:20-CV-01576, 2022 WL 160274, at *8 (N.D.N.Y. Jan. 18, 2022) (“But
without some clear discussion of the supportability factor the Court is left to guess at the ALJ’s
reasoning, which frustrates meaningful review.”).
Furthermore, the Court cannot conclude that the ALJ’s failure to explain his evaluation of
Dr. Vitale’s opinion is harmless. This is particularly so because the vocational expert testified
that the jobs identified by him and adopted by the ALJ—i.e., order clerk, touch-up screener
(printed circuit board assembly), and document preparer—as well as other unskilled, sedentary
jobs, would not be available to an individual who had no use of the non-dominant upper
extremity. R. 57.
Although not addressed by the parties, the Court further notes that the ALJ’s RFC
appears to be internally inconsistent: the ALJ found that Plaintiff can “do no overhead reaching
with the left upper extremity” but nevertheless “can occasionally reach in all directions with the
upper left non dominate [sic] extremity[,]” which would presumably including overhead
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reaching. R. 18 (emphasis added). The Court also notes that the ALJ found persuasive Dr.
Vitale’s opinion that Plaintiff could sit for eight hours, but the ALJ did not address Dr. Vitale’s
opinion that Plaintiff can sit for only one hour at a time without interruption and the RFC
provides no requirement of a sit/stand option. R. 18, 21, 900.
This Court therefore concludes that remand of the matter for further consideration of
these issues is appropriate. Moreover, this is true even if, upon further examination of Dr.
Vitale’s opinion and the RFC determination, the ALJ again finds that Plaintiff is not entitled to
benefits. Cf. Zuschlag v. Comm’r of Soc. Sec. Admin., No. 18-CV-1949, 2020 WL 5525578, at
*8 (D.N.J. Sept. 15, 2020) (“On remand, the ALJ may reach the same conclusion, but it must be
based on a proper foundation.”); Jiminez v. Comm’r of Soc. Sec., No. CV 19-12662, 2020 WL
5105232, at *4 (D.N.J. Aug. 28, 2020) (“Once more, the ALJ did not provide an adequate
explanation that would enable meaningful review, and the Court once more cannot determine
what role lay speculation played in the ALJ’s rejection of this detailed functional assessment
from Dr. Marks.”); Cassidy v. Colvin, No. 2:13-1203, 2014 WL 2041734, at *10 n.3 (W.D. Pa.
May 16, 2014) (“Nevertheless, that the ALJ may have misinterpreted or misunderstood Dr.
Kaplan’s findings with regard to Plaintiff’s postural activities does not absolve her of her error.
Rather, it highlights the need for an ALJ to fully explain her findings. Otherwise, the district
court is left to engage in this sort of speculation about how an ALJ arrived at her decision.”).
VI.

CONCLUSION
For these reasons, the Court REVERSES the Commissioner’s decision and REMANDS

the matter for further proceedings consistent with this Opinion and Order.
The Court will issue a separate Order issuing final judgment pursuant to Sentence 4 of 42
U.S.C. § 405(g).
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IT IS SO ORDERED.

Date: May 6, 2022

s/Norah McCann King
NORAH McCANN KING
UNITED STATES MAGISTRATE JUDGE

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