Gregoretti v. Commissioner of Social Security

Filing 12

ORDER: For the foregoing reasons(Please See Order For Further Details), the Court GRANTS Plaintiff's motion for judgment on the pleadings and DENIES the Commissioner's cross-motion. This matter is REMANDED for proceedings consistent with th is Memorandum and Order. On remand, the ALJ should assess Plaintiff's functional limitations on a function-by-function basis, and explain how the ALJ's RFC determination squares with any and all limitations, and, if necessary to the ALJ 9;s decision, explore the extent of climbing that was required in Plaintiff's past work. It is further ORDERED that the Clerk of The Court is respectfully directed to enter judgment accordingly and close this case. So Ordered by Judge Joan M. Azrack on 3/7/2025. (GO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------X
MARIE GREGORETTI,
Plaintiff,
-againstCOMMISSIONER OF THE SOCIAL SECURITY
ADMINISTRATION,
Defendant.
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AZRACK, United States District Judge:

For Online Publication Only
ORDER
2:23-cv-06845 (JMA)
FILED
CLERK

3:10 pm, Mar 07, 2025
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE

Before the Court is an appeal brought pursuant to the Social Security Act, 42 U.S.C. § 405
et seq. (the “SSA”).

Plaintiff Marie Gregoretti challenges final determinations by the

Commissioner of the Social Security Administration (the “Commissioner”) that she is ineligible
to receive Social Security disability insurance benefits. (See Compl., ECF No. 1.) Presently before
the Court are the parties’ cross-motions, pursuant to Fed. R. Civ. P. 12(c), for judgment on the
pleadings. (ECF Nos. 8 & 9.) Upon consideration of the administrative record and the reasons set
forth herein, the Court GRANTS Plaintiff’s motion and DENIES Defendant’s cross motion for
judgment on the pleadings. The case is remanded the Commissioner for further proceedings.
I.

BACKGROUND

On April 9, 2021, Plaintiff filed for disability insurance benefits under Title II of the SSA
alleging disability due degenerative joint disease of the bilateral knees, degenerative disc disease
of the lumbar spine, and obesity, with a disability onset date of July, 1, 2020. (ECF No. 11,
Administrative Transcript (“Tr.”) 10, 13). Plaintiff’s applications were denied initially on August
9, 2021, and then on upon reconsideration on December 17, 2021. (Tr. 10, 13.) Subsequently,
Plaintiff requested a hearing, which was held before Administrative Law Judge (“ALJ”) Andrew
Weiss on May 27, 2022. (Tr. 9.) On June 28, 2022, ALJ Weiss found that Plaintiff was not disabled

within the meaning of the SSA. (Tr. 10-19.) On July 19, 2023, the Social Security Administration
Appeals Council denied Plaintiff’s request for review. (Tr. 1.) ALJ Weiss’ decision is the final
decision of the Commissioner, subject to review under 42 U.S.C. § 405(g). (Tr. 1.)
On September 14, 2023, Plaintiff appealed the final decision of the Commissioner by filing
the instant complaint. (See Compl.) On May 30, 2024, the parties filed cross-motions for
judgment on the pleadings. (ECF Nos. 8 & 9.)
II.
A.

LEGAL STANDARDS

Social Security Disability Standard
To qualify for disability benefits under Title XVI, an individual must be (i) insured for

disability benefits; (ii) not have attained retirement age; (iii) be a U.S. citizen or a foreign national
under certain circumstances not relevant here; and (iv) have a “disability.” 42 U.S.C. § 423(a)(1).
The SSA defines “disability” to mean that an individual cannot “engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death, or which has lasted or can be expected to last for a continuous period
not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). Additionally, the impairment must be
“of such severity that [the claimant] is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).
The Social Security Administration has promulgated implementing regulations prescribing
a five-step analysis for ALJs to follow to determine if a claimant is eligible for disability benefits.
See 20 C.F.R. § 404.1520. The Second Circuit summarizes that analysis as follows:
First, the Commissioner considers whether the claimant is currently engaged in
substantial gainful activity. If he is not, the Commissioner next considers whether
the claimant has a ‘severe impairment’ which significantly limits his physical or
mental ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical evidence, the
claimant has an impairment which is listed in Appendix 1 of the regulations. If the
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claimant has such an impairment, the Commissioner will consider him disabled
without considering vocational factors such as age, education, and work
experience .... Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant’s severe impairment, he has the residual
functional capacity to perform his past work. Finally, if the claimant is unable to
perform his past work, the Commissioner then determines whether there is other
work which the claimant can perform.’
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). “The applicant bears the burden of proof in
the first four steps of the sequential inquiry; the Commissioner bears the burden in the last.”)
Talavera, 697 F.3d 145 at 152 (2d Cir. 2012); Williams v. Comm’r of Soc. Sec., No. 20-CV-02665,
2021 WL 4690794, at *1 (E.D.N.Y. Oct. 7, 2021) (similar).
B.

Standard of Review
“The Court’s review of a Commissioner’s denial of disability insurance benefits is limited

to two inquiries: (1) whether the Commissioner applied the correct legal standards in reaching a
decision, and (2) whether the Commissioner’s factual findings were ‘supported by substantial
evidence in the record as a whole.’” Greek v. Colvin, 802 F.3d 370, 374-75 (2d Cir. 2015)). “The
Court will not, however, substitute its own judgement for that of the Commissioner’s ‘or determine
de novo whether [the claimant] is disabled.’” Id., 516 F. Supp. 3d at 220 (quoting Cage v. Comm’r
of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012)); see also Greek, 802 F.3d at 374-75 (“The disability
within the meaning of the Act belongs to the Commissioner.”).
Regarding the first inquiry, the Court must determine whether “the claimant has had a full
hearing under the [Commissioner’s] regulations and in accordance with the beneficent purposes
of the [Social Security] Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal
quotation marks and citation omitted). “Failure to apply the correct legal standard constitutes
reversible error, including, in certain circumstances, failure to adhere to the applicable
regulations.” Edwards v. Comm’r of Soc. Sec. Admin., No. 22-CV-4345, 2023 WL 6173526, at
*2 (S.D.N.Y. Sept. 22, 2023) (quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)).
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Inquiry into whether the Commissioner’s factual findings are supported by substantial
evidence requires the reviewing court to “examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be drawn.” Snell v. Apfel, 177 F.3d
128, 132 (2d Cir. 1999) (internal quotation marks and citation omitted)). “Substantial evidence”
is “more than a mere scintilla.” Ryan on Behalf of V.D.C. v. Comm’r of Soc. Sec., No. 21-2947CV, 2022 WL 17933217, at *1 (2d Cir. 2022) (citation omitted). “It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation
marks omitted). The findings of the Commissioner as to any fact though, if supported by
substantial evidence, are conclusive. 42 U.S.C. § 405(g). Thus, the relevant question is not
whether substantial evidence supports Plaintiff’s position, but whether “substantial evidence
supports the ALJ’s decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013)
(emphasis in original). This is a “highly deferential standard of review.” Spellman v. Comm’r of
Soc. Sec., No. 2:21-CV-05842, 2023 WL 5350845, at *9 (E.D.N.Y. Aug. 21, 2023) (citing Negron
v. Berryhill, 733 F. App’x 1, 2 (2d Cir. 2018)).
III.
A.

DISCUSSION

The ALJ’s Decision
On June 28, 2022, ALJ Weiss found that Plaintiff was not disabled within the meaning of

the SSA and denied Plaintiff’s claims for disability insurance benefits. (Tr. 10-19.) Following the
five-step process set forth above, ALJ Weiss determined that Plaintiff had met the insured status
requirements of the Act; had not engaged in substantial gainful activity since the alleged onset date
of July, 1, 2020; and had the severe, medically determinable impairments of degenerative joint
disease of the bilateral knees; degenerative disc disease of the lumbar spine; and obesity (Tr. 13.)
At the fourth step, ALJ Weiss found that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
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impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 13.) ALJ Weiss found that Plaintiff
had the residual functional capacity (“RFC”) “to perform the full range of sedentary work as
defined in 20 CFR 404.1567(a).” Based on this RFC, ALJ Weiss determined that Plaintiff could
perform her past relevant work as a delivery clerk. (Tr. 18.) Accordingly, ALJ Weiss concluded
that Plaintiff was not disabled, as defined by the SSA, from July, 1, 2020 through the date of his
decision on June 28, 2022.
B.

Plaintiff’s Challenge
Plaintiff asserts two points of error in support of her motion for judgment on the pleadings.

(See ECF No. 8 at 11-15.) Specifically, Plaintiff asserts that ALJ Weiss’s decision is not supported
by substantial evidence because he: (1) failed to explain how the limitations assessed by Dr. Syeda
Asad square with Plaintiff’s RFC; and (2) failed to assess Ms. Gregoretti’s ability to perform work
activities on a function-by-function basis. (Id.) Plaintiff argues these failures constitute harmful
error and thus require remand.
In opposition, the Commissioner counters that ALJ Weiss’ decision is supported by
substantial evidence. (ECF No. 9 at 14.) Specifically, the Commissioner argues that ALJ Weiss
reasonably relied upon Dr. Assad’s opinion and, despite ALJ Weiss’ failure to assess Plaintiff’s
work activities on a function-by-function basis, his opinion is “easily understandable.” (Id. at 1719). The Commissioner asserts that remand is not warranted, because the decision adequately
accounts for the Plaintiff’s work limitations and did not err in finding that she had the RFC to
perform the full range of sedentary work. (See id.)
Having carefully reviewed the record, the Court agrees with Plaintiff and finds that ALJ
Weiss’ decision improperly applied the regulations and is not supported by substantial evidence in
the record.

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1. ALJ Weiss’ Decision Fails to Adequately Explain Dr. Assad’s Opinion
with Respect to the RFC
As described above, Plaintiff contends that ALJ Weiss erred by failing to adequately
describe how Dr. Assad’s opinion fits with his RFC determination. (ECF No. 8 at 12.) Dr. Assad
opined that, due to Plaintiff’s impairments, she had “marked limitations for squatting, kneeling,
walking, and standing for a long period of time.” (Tr. 454.) ALJ Weiss found Dr. Assad’s opinion
“persuasive” because “she was able to personally examine the claimant and her medical source
statement aligns with limiting the claimant to sedentary work.” (Tr. 17.) Moreover, ALJ Weiss
found that “Dr. Asad’s opinion acknowledges significant limitations in the claimant’s exertional
and postural movements, but does not express that she would be so limited that she would be
unable to perform any sort of work activities.” (Tr. 17-18.)
Although ALJ Weiss was persuaded that these marked limitations exist, he did not address
any of them in his RFC finding and did not do a function-by-function analysis. Instead, his
conclusion is limited to the terse statement that Plaintiff has the RFC to “perform the full range of
sedentary work.” (Tr. 13.) (emphasis added). Sedentary work is defined as:
[W]ork involves lifting no more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and small tools. Although a sedentary
job is defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a). ALJ Weiss failed to explain how a marked limitation in walking is
consistent with his implicit determination that Plaintiff could “occasionally” walk. See e.g.,
Edwards v. Commissioner, 2018 WL 5859518, at *5 (W.D.N.Y. Nov. 9, 2018) (“If the ALJ is in
agreement that plaintiff has a marked limitation as to climbing stairs, remand is necessary for the
ALJ to explain how a marked limitation in that area is consistent with occasional stair climbing.
The Social Security Regulations define 'occasionally' as 'occurring from very little up to one-third
of the time.' The ALJ does not explain how a marked limitation would allow plaintiff to spend up
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to one-third of his work day climbing stairs.”); cf. Brady v. Colvin, No. 14-CV-5773, 2016 WL
1448644, at *5 (E.D.N.Y. Apr. 12, 2016) (remanding where the Commissioner found claimant
could perform sedentary work but failed to properly consider medical evidence demonstrating
claimant had “moderate to marked limitation to squatting, kneeling, bending, forward and
moderate limitation to long periods of sitting, standing, walking, and heavy lifting.”); Rowe v.
Colvin, 166 F. Supp. 3d 234, 240 (N.D.N.Y. 2016) (remanding where ALJ determined that plaintiff
could perform the full range of sedentary work despite adopting medical opinion of “marked
limitations for bending and neck motion, reaching, pushing, pulling, lifting, and carrying.”) At the
very least, ALJ Weiss’s RFC determination was, absent further explanation, deficient. 1
The Commissioner counters that “even granting that it would have been preferable for the
ALJ’s ultimate RFC finding to have been formulated more specifically . . . Plaintiff does not even
aver that this point is in any way material to the outcome of her claim.” (ECF No. 9 at 19.)
Essentially, the Commissioner argues that ALJ Weiss’ decision is “easily understandable” because
ALJ Weiss also found that that Plaintiff could perform her past work as a routing clerk and,
according to Plaintiff’s work history report, her “job did not require any stooping or kneeling . . .
[and only required that] she stood or walked each for a total of a half hour in an eight-hour day.”
(Id.) Thus, the Commissioner asserts that Plaintiff is “abstract[ing] a sedentary RFC finding” that
is not “material to her case.” (Id.)
The Court is unpersuaded. While it is true that Plaintiff reported that her job only required
that she walk for a half-hour per day—which could be consistent with a marked limitation in
walking—the Commissioner completely ignores the fact that Plaintiff also reported that her job
required her to “climb” for twenty minutes. (See Tr. 205 (indicating that Plaintiff’s previous job

1
The Court notes that although Dr. Assad opined that Plaintiff had a “marked” limitation for walking, Dr. Assad’s
opinion also indicated that Plaintiff could walk up to four hours per day. (Tr. 51.) ALJ Weiss, however, did not
explicitly address or credit Dr. Assad’s statement that Plaintiff could walk up to four hours per day. (See Tr. 15-16.)
The ALJ may wish to address this point on remand.

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as a routing clerk required “climbing” of 20 minutes each day, occasionally carrying files from the
cabinets to desks, and walking and standing for a half hour each day)). The ALJ never conducted
a function-by-function analysis so the Court is left to speculate as to what, if any limitations,
Plaintiffs has with respect to climbing. 2 Moreover, the fact that Dr. Assad opined that Plaintiff had
“marked limitations for squatting, kneeling, walking, and standing for a long period of time”
suggests that Plaintiff would likely have some climbing limitations. Additionally, the work history
report that Plaintiff filled out does not provide any further detail about the type of climbing that
her former job entailed and the ALJ did not flesh this issue out at the hearing. The Commissioner’s
harmless error argument simply requires this Court to make too many inferential leaps. The Court
refuses to speculate in this manner and therefore rejects the Commissioner’s argument that the
ALJ’s error was not potentially material to Plaintiff’s case.
The Court finds that the Commissioners’ decision is not based on substantial evidence and
must be reversed and remanded for further proceedings.
IV.

CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiff’s motion for judgment on the
pleadings and DENIES the Commissioner’s cross-motion. This matter is REMANDED for
proceedings consistent with this Memorandum and Order. On remand, the ALJ should assess
Plaintiff’s functional limitations on a function-by-function basis, and explain how the ALJ’s RFC
Pursuant to applicable policy, “[t]he RFC assessment must first identify the individual’s functional limitations or
restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in
paragraphs (b), (c), and (d) of 20 CFR 404.1545 and 416.945. Only after that may [the] RFC be expressed in terms
of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.” Titles II & Xvi: Assessing Residual
Functional Capacity in Initial Claims, SSR 96-8P (S.S.A. July 2, 1996). Plaintiff argues that, standing alone, ALJ
Weiss’s failure to perform a function-by-function analysis warrants remand. While an ALJ’s failure to conduct a
function-by-analysis may be insufficient on its own to require remand (see Cichocki v. Astrue, 729 F.3d 172, 173-74
(2d Cir. 2013)) here, the ALJ’s failure to conduct this function-by-function analysis is one reason why this Court is
unable to find that the ALJ’s other error was harmless. The ALJ failed to address relevant limitations and instead
summarily concluded that Plaintiff could perform the full range of sedentary work. See Gomez v. Saul, No. 1:19-CV04708, 2021 WL 1172674, at *13 (S.D.N.Y. Mar. 29, 2021) (“In contrast to Cichocki, remand is warranted here
because the ALJ did not address all of Plaintiff's relevant limitations. . .”) As this case is already being remanded for
the reasons set forth above, the Court also directs the ALJ to conduct a function-by-function analysis of Plaintiff’s
RFC on remand.
2

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determination squares with any and all limitations, and, if necessary to the ALJ’s decision, explore
the extent of climbing that was required in Plaintiff’s past work.
It is further ORDERED that the Clerk of The Court is respectfully directed to enter
judgment accordingly and close this case.

SO ORDERED.
Dated: March 7, 2025
Central Islip, New York

/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE

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