Simone v. Commissioner of Social Security

Filing 18

MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED, that plaintiff's # 14 Motion for Judgment on the Pleadings is GRANTED; and it is further ORDERED, that defendant's # 17 Cross-Motion for Judgment on the Pleadings is DENIED, and the m atter is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g), to the Commissioner for further consideration of plaintiff's radiculopathy diagnosis; and the weight afforded to (1) PA Gaskill's full treatment history, (2) the 2019 medical statement from the unknown author, and (3) Dr. Dickerson's opinion. Signed by Magistrate Judge Christian F. Hummel on 1/11/2022. (pjh, )

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
CHRISTINE LEE S.,
Plaintiff,
v.
No. 5:20-CV-1008
(CFH)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.
_____________________________________

APPEARANCES:

OF COUNSEL:

Law Offices of Kenneth Hiller, PLLC
6000 North Bailey Avenue, Ste. 1A
Amherst, New York 14226
Attorneys for plaintiff

JUSTIN M. GOLDSTEIN, ESQ.
KENNETH R. HILLER, ESQ.

Social Security Administration
J.F.K. Federal Building,
15 New Sudbury Street, Rm. 625
Boston, Massachusetts 02203
Attorneys for defendant

HUGH DUN RAPPAPORT, ESQ.

CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION AND ORDER1
Christine Lee S.2 (“plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g)
seeking review of a decision by the Commissioner of Social Security (“the
Commissioner”) denying her application for disability insurance benefits. See Dkt. No. 1

1

Parties consented to direct review of this matter by a Magistrate Judge pursuant to 28 U.S.C. §
636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local Rule 72.2(b), and General Order 18. See Dkt. No. 5.
2 In accordance with guidance from the Committee on Court Administration and Case Management of the
Judicial Conference of the United States, which was adopted by the Northern District of New York in 2018
to better protect personal and medical information of non-governmental parties, this MemorandumDecision and Order will identify plaintiff’s last name by initial only.

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(“Compl.”). Plaintiff moves for reversal and remand for the determination of benefits.
See Dkt. No. 14. The Commissioner opposes the motion. See Dkt. No. 17. For the
following reasons, the Commissioner’s cross-motion for judgment on the pleadings is
denied and the determination of the Commissioner is reversed and remanded for further
proceedings.

I. Background
On March 17, 2017, the alleged disability onset date, plaintiff filed a Title XVI
application for supplemental security income. See T. at 158-66.3 The Social Security
Administration (“SSA”) denied plaintiff’s claim on July 11, 2017. See id. at 79-83.
Plaintiff requested a hearing, see id. at 91, and a hearing was held on February 25,
2019, before Administrative Law Judge (“ALJ”) Monica D. Jackson. See id. at 31-60.
On September 24, 2019, the ALJ issued an unfavorable decision. See id. at 10-22. On
July 1, 2020, the Appeals Council denied plaintiff’s request for review. See id. at 1-6.
Plaintiff commenced this action on August 31, 2020. See Compl.

II. Legal Standards
A. Standard of Review

“T.” followed by a number refers to the pages of the administrative transcript filed by the Commissioner.
See Dkt. No. 12. Citations to the administrative transcript refer to the pagination in the bottom, right-hand
corner of the page, not the pagination generated by CM/ECF.
3

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In reviewing a final decision of the Commissioner, a district court may not
determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g),
1388(c)(3); Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990). Rather, the Commissioner’s determination will only be reversed if the correct
legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 985-86 (2d Cir. 1987); Berry v. Schweiker, 675 F.2d
464, 467 (2d Cir. 1982). Substantial evidence is “more than a mere scintilla,” meaning
that in the record one can find “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d
Cir. 2004) (per curiam) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal
citations omitted)). The substantial evidence standard is “a very deferential standard of
review . . . . [This] means once an ALJ finds facts, we can reject [them] only if a
reasonable factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin.,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (internal quotations marks, citation, and
emphasis omitted). Where there is reasonable doubt as to whether the Commissioner
applied the proper legal standards, the decision should not be affirmed even though the
ultimate conclusion is arguably supported by substantial evidence. See Martone v.
Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999) (citing Johnson, 817 F.2d at 986).
However, if the correct legal standards were applied and the ALJ’s finding is supported
by substantial evidence, such finding must be sustained “even where substantial
evidence may support the plaintiff’s position and despite that the court’s independent
analysis of the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805
F. Supp. 147, 153 (S.D.N.Y. 1992) (citation omitted).

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B. Determination of Disability
“Every individual who is under a disability shall be entitled to a disability . . .
benefit . . . .” 42 U.S.C. § 423(a)(1)(E). Disability is defined as the “inability to engage
in any substantial gainful activity by reason of any medically determinable physical or
mental impairment . . . which has lasted or can be expected to last for a continuous
period of not less than 12 months[.]” Id. § 423(d)(1)(A). A medically-determinable
impairment is an affliction that is so severe that it renders an individual unable to
continue with his or her previous work or any other employment that may be available to
him or her based upon age, education, and work experience. See id. § 423(d)(2)(A).
Such an impairment must be supported by “medically acceptable clinical and laboratory
diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the impairment is
“based on objective medical facts, diagnoses[,] or medical opinions inferable from [the]
facts, subjective complaints of pain or disability, and educational background, age, and
work experience.” Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 WL 399458, at *3
(S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.
1983)).
The Second Circuit employs a five-step analysis, based on 20 C.F.R. §
404.1520, to determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity.
If he [or she] is not, the [Commissioner] next considers
whether the claimant has a “severe impairment” which
significantly limits his [or her] 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
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an impairment which is listed in Appendix 1 of the
regulations. If the claimant has such an impairment, the
[Commissioner] will consider him [or her] disabled without
considering vocational factors such as age, education, and
work experience; the [Commissioner] presumes that a
claimant who is afflicted with a “listed” impairment is unable
to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant’s severe
impairment, he [or she] has the residual functional capacity
to perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her] past
work, the [Commissioner] then determines whether there is
other work which the claimant could perform.
Berry, 675 F.2d at 467 (spacing added). “If at any step a finding of disability or nondisability can be made, the SSA will not review the claim further.” Barnhart v. Thomas,
540 U.S. 20, 24 (2003). The plaintiff bears the initial burden of proof to establish each
of the first four steps. See DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998)
(citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth step, the burden
shifts to the Commissioner to prove that the plaintiff is still able to engage in gainful
employment somewhere. Id. (citing Berry, 675 F.2d at 467).

III. The ALJ’s Decision
Applying the five-step disability sequential evaluation, the ALJ first determined
that plaintiff had not engaged in substantial gainful activity since March 17, 2017, her
application date. See T. at 12. At step two, the ALJ found that plaintiff had the following
severe impairments: “fibromyalgia, myoclonus, arthritis, residuals from a toe fracture,
headaches, psoriasis, diabetes, obesity, carpal tunnel syndrome, obstructive sleep
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apnea (“OSA”), insomnia, asthma, chronic reflux, and esophagitis[.]” Id. At step three,
the ALJ determined that plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1. See id. at 15. Before reaching step four,
the ALJ concluded that plaintiff retained the residual functional capacity (“RFC”) to
perform light work as defined in 20 CFR 416.967(b) except
she could occasionally operate foot controls. She could occasionally
balance, stop, kneel, crouch, crawl, and climbs ramps and stairs. She
could never climb ropes, ladders, or scaffolds. She could frequently
reach, handle, finger, and feel with both upper extremities. She could
never be exposed to high, exposed places or moving mechanical parts.
The claimant could have occasional exposure to extreme heat, extreme
cold, wetness, humidity, vibration, and atmospheric conditions. She can
tolerate a moderate noise intensity level as defined in the Dictionary of
Occupational Titles/Selection Characteristics of Occupations. She can
tolerate occasional exposure to light brighter than that typically found in an
indoor work environment such as an office or retail store.
Id. at 16. At step four, the ALJ determined that plaintiff had no relevant past work. See
id. at 20. At step five, considering the plaintiff’s age, education, work experience, and
RFC, the ALJ concluded that there were jobs that existed in significant numbers in the
national economy that plaintiff could perform. See id. at 20-21. Thus, the ALJ
determined that plaintiff had not been under a disability, as defined in the Social
Security Act, since the alleged disability onset date. See id. at 22.

IV. Arguments4

The Court’s citations to the parties’ briefs refer to the pagination generated by CM/ECF at the headers of
the page.
4

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Plaintiff argues that the ALJ (1) based the RFC and consistency findings on
mischaracterizations of the record; (2) improperly relied on the stale opinion of Disability
Determination Services consultant R. Dickerson, M.D.; (3) inappropriately discounted
the opinion of plaintiff’s primary care provider, Nancy Gaskill, P.A.; (4) failed to find
plaintiff’s radiculopathy severe at step two; and (5) failed to obtain additional evidence
related to her radiculopathy, resulting in a gap in the record. See Dkt. No. 14. The
Commissioner argues that the ALJ’s findings are supported by substantial evidence and
the ALJ afforded appropriate weight to the relevant medical opinions. See Dkt. No. 16.

V. Analysis
A. Consistency of Plaintiff’s Allegations
Plaintiff argues that the ALJ “made negative inferences based upon a
mischaracterization of the record . . . [and] did not resolve conflicts in the record but
made conclusive findings indicating that evidence does not exist to support [p]laintiff’s
allegations and limitations.” Dkt. No. 14 at 16. The Commissioner argues that “the ALJ
properly relied on the objective medical evidence[] . . . [and] [p]laintiff’s admissions
about her activities of daily living.” Dkt. No. 17 at 5-6.
“The regulations provide a two-step process for evaluating a claimant’s
assertions of pain and other limitations. At the first step, the ALJ must decide whether
the claimant suffers from a medically determinable impairment that could reasonably be
expected to produce the symptoms alleged.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.
2011) (citing 20 C.F.R. § 404.1529(b)); see Social Security Ruling (“SSR”) 16-3p: Titles

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II and XVI Evaluation of Symptoms in Disability Claims, 2017 WL 5180304, at *1-2 (Oct,
25, 2017). “If the claimant does suffer from such an impairment, at the second step, the
ALJ must consider ‘the extent to which [the claimant’s] symptoms can reasonably be
accepted as consistent with the objective medical evidence and other evidence’ of
record.” Id. (alterations in original) (quoting 20 C.F.R. § 404.1529(a)). “While
statements of pain are insufficient, an ALJ may not reject statements of intensity and
persistence of pain or other symptoms affecting an individual’s ability to work because
of a lack of substantiating medical evidence.” Michael H. v. Saul, No. 5:20-CV-417
(MAD), 2021 WL 2358257, at *10 (N.D.N.Y. June 9, 2021) (citing 20 C.F.R.
§ 404.1529(c)(2)). The ALJ “is not required to accept the claimant’s subjective
complaints without question; he may exercise discretion in weighing the credibility of the
claimant’s testimony in light of the other evidence in the record.” Genier, 606 F.3d at 49
(citing Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)).
“Under SSR 16-3p, when evaluating a claimant’s symptom intensity, ‘[t]he ALJ
must consider the entire case record, including objective medical evidence, a claimant’s
statements about the intensity, persistence, and limiting effects of symptoms,
statements and information provided by medical sources, and any other relevant
evidence in the claimant’s record.’” Kearney v. Berryhill, No. 1:16-CV-00652 (MAT),
2018 WL 5776422, at *6 (W.D.N.Y. Nov. 2, 2018) (alteration in original) (quoting Vered
v. Colvin, No. 14-CV-4590 (KAM), 2017 WL 639245, at *15 (E.D.N.Y. Feb. 16, 2017)).
The ALJ must “clearly demonstrate[] [that] he considered the entire case record . . . as
required by SSR 16-3p.” Id. (“The ALJ provided significant detail regarding the basis of
this finding, noting there is little objective evidence of record to support the alleged

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severity of the symptoms [the] [p]laintiff described at the hearing.”); see, e.g., Michael
H., 2021 WL 2358257, at *11 (affirming the ALJ’s determination where the ALJ
“examine[d] inconsistencies in the record” between the plaintiff’s testimony and the
medical records and opinions); Blyden v. Comm’r of Soc. Sec., No. 19-CV-01643
(FPG), 2020 WL 6785495, at *3 (W.D.N.Y. Nov. 18, 2020) (“[T]aken together, [the]
[p]laintiff’s treatment records do not support [the] [p]laintiff's inability to perform
sedentary work, as the ALJ found.”).
Here, the ALJ found that plaintiff’s medically-determinable impairments could be
expected to cause the alleged symptoms, but that her statements as to intensity,
persistence, and limiting effect of the symptoms were not entirely consistent with the
record. See T. at 17. The ALJ summarized plaintiff’s symptoms, noting that: she is
always tired and in pain; if she is having a bad day, she cannot care for personal needs
and pain affects any type of physical activity; she cannot sit or stand for a workday or
drive for very long; she uses an electric shopping cart and generally needs a cane to
ambulate; and she experiences involuntary jerking movements and headaches. See id.
at 16, 37-42,188-89, 191, 217. Plaintiff further testified that she can lift a gallon of milk,
perform very few chores, sit and stand for thirty minutes at a time, has to elevate her
legs all of the time, and spends most of her days laying down. See id. at 17, 40-41, 4750.
1. Exertional Limitations
Plaintiff argues that the ALJ erred in finding that, aside from Kautilya Puri, M.D.’s
treatment note stating that plaintiff used a cane, “the remaining treatment record does
not document use of a cane to ambulate.” T. at 19; see Dkt. No. 14 at 17-18. The

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Commissioner contends that Dr. Dickerson found that a cane was unnecessary, and
that plaintiff’s record citations refer only to her subjective allegations, not medical
opinions addressing its medical necessity. See Dkt. No. 17 at 6-8.
To be medically necessary “there must be medical documentation establishing
the need for a hand-held assistive device to aid in walking or standing, and describing
the circumstances for which the assistive device is needed (i.e., whether all the time,
periodically, or only in certain situations; distance and terrain, and any other relevant
information).” SSR 96-9p, Titles II & XVI: Determining Capability to Do Other WorkImplications of A Residual Functional Capacity for Less Than A Full Range of Sedentary
Work, 1996 WL 374185, at *7 (July 2, 1996). “A cane need not be prescribed to be
considered medically necessary, but there must be specific medical documentation
establishing the need for it and the circumstances surrounding that need.” Shepard v.
Comm’r of Soc. Sec., No. 5:16-CV-1347 (ATB), 2017 WL 5508377, at *11 (N.D.N.Y.
Nov. 15, 2017). The plaintiff has the burden to establish medical necessity. See Wilson
v. Comm’r of Soc. Sec., No. 6:13-CV-643 (GLS/ESH), 2014 WL 4826757, at *11
(N.D.N.Y. Sept. 29, 2014). A physician’s observation that a patient used a cane or had
an unsteady gait does not satisfy this burden. See Hoke v. Colvin, No. 1:14-CV-0663
(GTS/CFH), 2015 WL 3901807, at *14 (N.D.N.Y. June 25, 2015). “[W]hen there is
medical documentation about a cane in the record, an ALJ’s failure to determine
whether the cane is medically necessary or to incorporate the use of a cane into the
RFC is legal error.” Charles F. v. Comm’r of Soc. Sec., No. 19-CV-1664 (LJV), 2021
WL 963585, at *4 (W.D.N.Y. Mar. 15, 2021).

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This Court has held that substantial evidence supported an ALJ’s determination
that a plaintiff “ha[d] mild limitations, that the cane [wa]s not medically necessary, and
that he ha[d] the capacity to perform light work” where the only evidence to support the
plaintiff’s medical-necessity argument was a physician’s observation that he had an
“unsteady gait” and a note “during a callous examination that [the plaintiff] ambulated
with a cane and had moderate limitations in walking and standing.” Hoke, 2015 WL
3901807, at *13; *12. In Hoke, a consultative examiner “concluded that it was unclear
whether the cane was medically necessary because [the plaintiff] used the cane
inconsistently,” and the plaintiff’s treating physician did not opine whether a cane was
medically necessary. Id. at *13. Rather, the examiners consistently noted that the
plaintiff had “full range of motion” and only “mild limitations on sitting and standing for
long periods, walking long distances, bending, squatting, climbing stairs, and
kneeling[.]” Id. at *12-13.
This Court has also explained that an “ALJ’s RFC determination that [the] plaintiff
could perform light work, and his step 4 and step 5 determinations, did not need to
account for [the] plaintiff’s use of a cane[]” because “[t]he record contain[ed] no
documentation . . . regarding the cane prescription . . .[,] [and] [w]hile [the] plaintiff notes
that numerous medical records mention her use of a cane, none explain if the cane was
medically necessary.” Allen v. Comm’r of Soc. Sec., No. 5:14-CV-1576 (DNH/ATB),
2016 WL 996381, at *8 (N.D.N.Y. Feb. 22, 2016), report and recommendation adopted
sub nom. 2016 WL 1020858 (N.D.N.Y. Mar. 14, 2016). The Court also held that the
ALJ’s determination was sufficiently supported where the ALJ “noted that eyeglasses
were the only assistive device listed[] . . . [and] that [the] plaintiff exhibited a normal gait

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and good balance when walking.” Id.; compare Caridad H. v. Comm’r of Soc. Sec., No.
5:18-CV-893 (TWD), 2019 WL 3253228, at *7 (N.D.N.Y. July 19, 2019) (finding that the
plaintiff “failed to carry her burden to establish the medical necessity for the use of her
cane[]” because she was “unable to point to any medical records suggesting that a cane
is medically necessary.”), with Shepard, 2017 WL 5508377, at *12 (remanding for
“clarification of the necessity of [the] plaintiff’s cane” because “there are multiple medical
records that mention [the] plaintiff’s cane, and some that ‘encourage’ [the] plaintiff to
continue to use the assistive device.”).
Contrary to the ALJ’s statement that “the remaining treatment record does not
document use of a cane to ambulate[,]” T. at 19, there are numerous records that
mention plaintiff’s use of cane. See id. at 538, 618, 629, 649, 654, 661, 674, 697, 712,
723, 745, 757, 765, 770, 775, 790, 804, 836. The Commissioner contends that
“[a]lthough the ALJ admittedly could have expressed herself more clearly, what she
appears to have meant is that the record squarely refutes [p]laintiff’s allegation that she
‘always’ used a cane.” Dkt. No. 17 at 7. The regulations do not define “medical
documentation,” and a cane does not need to be prescribed to be considered “medically
necessary.” SSR 96-9p, 1996 WL 374185, at *7; Shepard, 2017 WL 5508377, at *11.
It is unclear whether plaintiff had a prescription for her cane, but there is not one in the
record. Compare T. at 280 (“It was prescribed by a doctor[.]”), with id. at 69 (“[C]laimant
reports cane & walker suggested by doctor but not prescribed.”), and id. at 194 (“Brace,
reading [glasses], cane and walker were suggested by the doctor but not prescribed[.]”).
Although plaintiff used a cane during the majority of her examinations with PA Gaskill
and Ojugbell Ifechukwude, M.D., neither addressed its medical necessity. See id. at

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654, 661, 667, 674, 765-67; see, e.g., Allen, 2016 WL 996381, at *8. The ALJ noted Dr.
Puri’s conclusion that a cane was not “medically necessary.” T. at 17. Dr. Puri opined
that plaintiff “uses a cane for pain and weight bearing always. It was prescribed by a
doctor, and her gait with or without it is about the same. I do not feel it is required.” Id.
at 280. Dr. Puri observed that plaintiff was limping and could not walk on her heels or
toes. See id. Additionally, plaintiff demonstrated a normal gait throughout her treatment
history. See id. at 382, 387, 663; see also Shepard, 2017 WL 5508377, at *11 (noting
that it was “not completely clear” whether a physician’s statement that “[t]he claimant’s
use of the cane does not appear necessary[]” meant that “use of the cane was not
medically necessary[]” where the physician also noted that the plaintiff had a normal gait
but could not walk on his heels and toes.); Allen, 2016 WL 996381, at *8. In June 2017,
during a psychiatric evaluation, Dr. Jeanne Shapiro, M.D., noted that plaintiff “used no
assistive devices but does use an ankle brace, a walker and cane prn.”5 T. at 288. In
October 2018, following plaintiff’s gastric bypass surgery, she ambulated “normally” with
“no cane[,]” id. at 460, but the following month her ambulation was “limited.” Id. at 465.
The ALJ did not discuss these medical records to evaluate whether a cane was
medically necessary. See T. at 280; 17, 19; see also Charles F., 2021 WL 963585, at
*4; see Rowe v. Berryhill, No. 1:17-CV-00208 (MAT), 2018 WL 4233702, at *4
(W.D.N.Y. Sept. 6, 2018) (finding that “the ALJ’s discussion of [the] [p]laintiff’s use of the
cane inadequate[,]” where a “discharge summary noted the cane should be used to
assist with ambulation for four weeks[,]” and “the record contains several instances
where Plaintiff's range of motion was limited[.]”). Although the ALJ’s statement that “the

“‘PRN’ is medical abbreviation meaning ‘when necessary.’” Medovich v. Colvin, No. 3:13-CV-1244
(GLS/ESH), 2015 WL 1310310, at *7, n.10 (N.D.N.Y. Mar. 23, 2015).
5

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remainder of the record does not document” plaintiff’s use of a cane is incorrect, this
error is harmless as there is substantial evidence supporting the ALJ’s decision. T. at
17. No physician determined that a cane was “medically necessary” or “encouraged” its
use; there is no evidence of a prescription in the record; and even in the records that
reflect plaintiff used a cane, her gait, motor strength, and range of movement were
normal. Shepard, 2017 WL 5508377, at *12; Rowe, 2018 WL 4233702, at *4; see
Rosado, 805 F. Supp. 147 at 153 (“[E]ven where substantial evidence may support the
plaintiff’s position and despite that the court’s independent analysis of the evidence may
differ from the [Commissioner’s][,]” the Commissioner’s decision must be upheld if
supported by substantial evidence.). Based on a physical examination, Dr. Puri
concluded that plaintiff’s “gait with and without [her cane] [wa]s about the same”;
therefore, he did “not feel it [wa]s required.” T. at 280. As such, remand is not
warranted on this ground.
2. Radiculopathy
Plaintiff argues that the ALJ erred by failing to consider evidence from John
Michael King, M.D., showing that her radiculopathy was severe. See Dkt. No. 14 at 18.
Plaintiff argues that “[t]he EMG results omitted from the ALJ’s summation of evidence
show greater findings and support another diagnosis that was not found severe at Step
2.” Id. Specifically, plaintiff contends that “records from Dr. King show additional
evidence missing from the current record, including an MRI and updated treatment
notes of” neurologist Islam Hassan, D.O., and “it is unclear why the additional records
were not requested by the ALJ.” Id. The Commissioner argues that “[p]laintiff was
diagnosed with cervical radiculopathy based, in part, on the EMG results,” but “has not

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made any meaningful attempt to sustain her burden of establishing that her cervical
radiculopathy caused any specific, functional, work-related limitations beyond what the
ALJ included in her RFC finding.” Dkt. No. 17 at 9. Moreover, the Commissioner
contends that the ALJ held the record open for plaintiff to “submit Dr. King’s records,
including any records relating to the MRI[.]” Id.
At step two, the ALJ must determine whether the claimant has a severe
impairment that significantly limits his physical or mental abilities to do basic work
activities. See 20 C.F.R. § 404.1520(c). “Although the Second Circuit has held that this
step is limited to ‘screening out de minimis claims,’ [ ] the ‘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.” Taylor v.
Astrue, 32 F. Supp. 3d 253, 265 (N.D.N.Y. 2012) (quoting Dixon v. Shalala, 54 F.3d
1019, 1030 (2d Cir. 1995); Coleman v. Shalala, 895 F. Supp. 50, 53 (S.D.N.Y. 1995)).
Moreover, failing to find a specific impairment severe at step two can be “harmless
where the ALJ concludes (a) there is at least one other severe impairment, (b) the ALJ
continues with the sequential evaluation, and (c) the ALJ provides explanation showing
he adequately considered the evidence related to the impairment that is ultimately found
non-severe.” Robert D. v. Comm’r of Soc. Sec., No. 6:19-CV-0340 (DJS), 2020 WL
2553260, at *4 (N.D.N.Y. May 20, 2020).
Although a plaintiff has the general burden of proving that he or she has a
disability within the meaning of the Act, “[g]iven the remedial intent of the Social Security
statute and the non-adversarial nature of benefits proceedings, an ALJ has an
affirmative duty, even if the claimant is represented by counsel, to develop the medical

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record if it is incomplete.” Tammy H. v. Comm’r of Soc. Sec., No. 5:18-CV-851 (ATB),
2019 WL 4142639, at *7 (N.D.N.Y. Aug. 30, 2019). “While one tool in an ALJ’s toolbox
might be to seek the assistance of [the] [p]laintiff’s counsel, an ALJ cannot merely rely
on requests of counsel to obtain records to fulfill the duty to investigate and develop the
record.” Carr v. Comm’r of Soc. Sec., No. 16-CV-5877 (VSB/JCF), 2018 WL 3410012,
at *3 (S.D.N.Y. July 12, 2018). Rather, “courts in this Circuit have held that an ALJ’s
mere request to plaintiff or his counsel to provide additional medical records does not
sufficiently satisfy the ALJ’s duty to develop the record when the records are never
provided[.]” Id. at *4 (collecting cases). “In this regard, the ALJ must make every
reasonable effort to help [the claimant] get medical reports from [his or her] own medical
sources.” Kentile v. Colvin, No. 8:13-CV-880 (MAD/CFH), 2014 WL 3534905, at *12
(N.D.N.Y. July 17, 2014) (citations and internal quotation marks omitted) (alterations in
original).
The Southern District of New York remanded a case where “[t]he ALJ recognized
that [specific] treatment records . . . , if they existed, were important” and “left the record
open after the hearings and followed up with [the] [p]laintiff's representative to obtain
additional records,” but the treatment records were not a part of the administrative
transcript. Ana Rosado v. Berryhill, No. 18-CV-2177 (KMK/JCM), 2019 WL 1993996, at
*9 (S.D.N.Y. Apr. 5, 2019), report and recommendation adopted, 2019 WL 1988530
(S.D.N.Y. May 6, 2019). The Court explained that there was “no evidence in the record
that the ALJ ever subpoenaed records” and “[t]he absence of treatment records
represents a significant gap in the administrative record as [the physician] . . . reported
disabling symptoms and limited functional capacity that, if given weight, may affect the

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ALJ’s RFC assessment.” Id. at *11; see also Outley v. Astrue, No. 5:09-CV-0141
(FJS/VEB), 2010 WL 3703065, at *4 (N.D.N.Y. Aug. 26, 2010), report and
recommendation adopted sub nom. 2010 WL 3703061 (N.D.N.Y. Sept. 13, 2010)
(remanding “because the ALJ failed to properly develop the record” where the ALJ told
the plaintiff and counsel, “‘You’ve got 10 days, get me back a medical source statement
from [your treating physician]’ . . . [but] the ALJ made no attempt to obtain the
necessary information himself.”).
Plaintiff appeared before the ALJ on February 25, 2019. See T. at 31. At the
hearing, plaintiff explained that Dr. Hassan referred her to Dr. King, and Dr. King had
newly diagnosed her with carpal tunnel syndrome. See id. at 45, 47. Three days before
the hearing, plaintiff had an “MRI of the neck” “which [she] [did not] have the results for
yet.” Id. at 47; 41. Therefore, the ALJ did not have the results or any related treatment
notes at the time of the hearing. See id. at 47. The ALJ kept the record open so that
plaintiff could submit records “about the carpal tunnel and about the neck and the back
and that kind of -- if she has had an MRI done, I would think it would[] . . . be material to
the outcome of the case.” Id. At the end of the hearing, the ALJ asked plaintiff’s
representative6 whether the record was complete. See id. at 59. Plaintiff’s
representative stated, “I’m unsure of the Dr. King matter. . . . If we could have a couple
of weeks to review this . . . and get that to you if necessary, I would greatly appreciate

6

The Commissioner indicates that plaintiff was represented by a non-attorney representative at her
hearing and the ALJ’s decision states the same. See Dkt. No. 17 at 2; T. at 10. However, during
plaintiff’s hearing, the ALJ referred to plaintiff’s representative as an attorney, and the Appeals Council
noted that it considered the “Brief by Attorney Russel Shanahan[.]” T. at 4, 33. Whether plaintiff was
represented by counsel or a non-attorney representative does not change the Court’s analysis. See Ana
Rosado, 2019 WL 1993996, at *9 (citing Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (“The ALJ’s duty
to develop the record exists even where the claimant is represented by counsel or a non-lawyer
representative such as a paralegal.”)).

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it.” Id. The ALJ agreed to “leave the record open [for] 14 days for those records[] . . .
And once we have Dr. King’s records . . . I’ll be ready to issue a decision[.]” Id.
The Commissioner contends that “[p]laintiff’s representative obtained multiple
treatment notes from Dr. King and submitted them to the ALJ.” Dkt. No. 17 at 9 (citing
T. at 965-76). The Commissioner also contends that plaintiff “does not accurately
characterize the record when she asserts that additional records regarding [carpal
tunnel syndrome] ‘were not requested by the ALJ’ . . . . It therefore suffices to observe
that [p]laintiff did not request the ALJ’s assistance in securing any additional evidence.”
Id. at 10. It appears that plaintiff complains that the ALJ failed to consider and obtain
records related to her radiculopathy, not carpal tunnel. See Dkt. No. 14 at 18. Further,
the ALJ’s duty to develop the record exists even absent a plaintiff’s explicit request for
assistance. See Yucekus v. Comm’r of Soc. Sec., 829 F. App’x 553, 558 (2d Cir. 2020)
(summary order) (“[W]here there are deficiencies in the record, an ALJ is under an
affirmative obligation to develop a claimant’s medical history even when the claimant is
represented by counsel[.]”) (alterations in original) (quoting Rosa v. Callahan, 168 F.3d
72, 79 (2d Cir. 1999)); cf. Desane v. Colvin, No. 3:15-CV-50 (GTS), 2015 WL 7748877,
at *5 (N.D.N.Y. Nov. 30, 2015) (finding that the ALJ met his burden where the ALJ
informed the attorney to contact the ALJ if the new records could not be obtained and
contacted the attorney to check on the status of the records) (citing Jordan v. Comm’r of
Soc. Sec., 142 F. App’x 542 (2d Cir. 2005) (summary order)).
In concluding that plaintiff’s allegations of intensity and persistence of pain were
not entirely consistent, the ALJ’s decision references Dr. King’s treatment records
submitted after the hearing, explaining that plaintiff was diagnosed with carpal tunnel

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syndrome, her pain was at a ten out of ten in December 2018, and that EMG testing in
February 2019 showed minimal left-side carpal tunnel syndrome. See T. at 18, 967,
969-70, 975. Dr. King opined that plaintiff’s EMGs7 showed “right C6 radiculopathy left
C8 radiculopathy and minimal left carpal tunnel syndrome. An MRI of the cervical spine
has already been ordered. . . . [and] scheduled by Dr. Hassan on 2/22/19[.]” Id. at 97475. Dr. King therefore assessed both carpal tunnel syndrome and radiculopathy and
stated, “[a]t this point we will await the results of the MRI scan. . . . It does appear that
the main issue right now is [plaintiff’s] cervical spine.” Id. at 976.
As to whether plaintiff’s radiculopathy constitutes a severe impairment, a “mere
diagnosis . . . without a finding as to the severity of symptoms and limitations does not
mandate a finding of disability[.]” Rivers v. Astrue, 280 F. App’x 20, 22 (2d Cir. 2008)
(summary order). Moreover, at noted, any error at step two could be harmless because
the ALJ found at least one severe impairment and proceeded with the sequential
evaluation process. See Robert D., 2020 WL 2553260, at *4. However, the ALJ’s
continued assessment lacks discussion of plaintiff’s radiculopathy. See T. at 18. The
ALJ referenced Dr. King’s treatment note regarding plaintiff’s carpal tunnel and gave Dr.
Puri’s opinion less weight, in part, because her “opinion does not consider the
subsequent records showing some carpal tunnel syndrome in [plaintiff’s] left wrist[.]” Id.
at 20. However, the ALJ did not discuss the remainder of Dr. King’s treatment note
finding “right C6 radiculopathy left C8 radiculopathy[.]” Id. at 975. During that visit, Dr.
King opined that it was not the carpal tunnel syndrome that was most concerning;

The ALJ states that the EMG testing was in February 2019. See T. at 18. Dr. King’s treatment note
from January 3, 2019, states, “[a]t this point we will proceed with EMG nerve conduction studies on both
uppers.” Id. at 973. On February 21, 2019, Dr. King noted that plaintiff “has had her EMGs done[.]” Id. at
975.
7

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rather, “[i]t does appear that the main issue right now is [plaintiff’s] cervical spine.” Id. at
976. The ALJ’s failure to discuss entirely plaintiff’s radiculopathy and whether, and to
what extent, it factored into her RFC determination constitutes reversible error. See
McIntosh v. Berryhill, No. 17-CV-5403 (ER/DF), 2018 WL 4376417, at *23 (S.D.N.Y.
July 16, 2018), report and recommendation adopted, 2018 WL 4374001 (S.D.N.Y. Sept.
12, 2018) (“Courts in this Circuit have consistently held that an ALJ’s failure to
acknowledge relevant evidence or explain its implicit rejection is plain error.” The
“[p]laintiff is correct that the ALJ’s decision makes no mention of the fact that [the]
[p]laintiff was diagnosed with radiculopathy . . . and, consequently, it is entirely unclear
whether the ALJ considered that diagnosis in his evaluation of the evidence.”).
Moreover, the February 2019 MRI results are not part of the record. “The duty to
develop obligates the Commissioner to develop a complete medical record, which is
detailed enough to allow the ALJ to determine the claimant’s RFC[.]” Manago v.
Kijakazi, No. 20-CV-1251 (MKB), 2021 WL 4408966, at *7 (E.D.N.Y. Sept. 26, 2021)
(internal citations and quotation marks omitted) (collecting cases). The ALJ explicitly
noted that the records concerning plaintiff’s carpal tunnel, neck, back, and whether “she
has had an MRI done” would be material to her decision, acknowledging an obvious
gap in the record. T. at 48; Craig v. Comm’r of Soc. Sec., 218 F. Supp. 3d 249, 267
(S.D.N.Y. 2016) (“The agency is required affirmatively to seek out additional evidence
only where there are obvious gaps in the administrative record.”) (quoting Eusepi v.
Colvin, 595 F. App’x. 7, 9 (2d Cir. 2014) (summary order)). As the record does not
elucidate any effort on the part of the ALJ to develop the record as it relates to plaintiff’s

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neck, back, and her February 2019 MRI, remand is required. See Carr, 2018 WL
3410012, at *4.
4. Visual Limitations
Plaintiff argues that the ALJ erred in rejecting a vision limitation in her RFC by
mischaracterizing the record, whereas the Commissioner argues that the ALJ’s
assessment of plaintiff’s vision is supported by substantial evidence or, in the
alternative, is harmless error. See Dkt. No. 14 at 20; Dkt. No. 17 at 13-14.
“It is well-settled that while an ALJ need not mention[] every item of testimony
presented or reconcile explicitly every conflicting shred of medical testimony, . . . the
ALJ may not ignore or mischaracterize evidence of a person’s alleged disability.”
Seignious v. Colvin, No. 6:15-CV-6065 (MAT), 2016 WL 96219, at *4 (W.D.N.Y. Jan. 8,
2016) (citations and internal quotation marks omitted). Moreover, “the ALJ cannot
arbitrarily substitute his own judgment for competent medical opinion. . . .” Balsamo v.
Chater, 142 F.3d 75, 80 (2d Cir. 1998) (citation omitted); see Nasci v. Colvin, No. 6:15CV-0947(GTS), 2017 WL 902135, at *8 (N.D.N.Y. Mar. 7, 2017) (“[T]he ALJ is not
permitted to substitute his or her own expertise or view of the medical proof for any
competent medical opinion.”).
The ALJ makes a single reference to plaintiff’s alleged visual impairments. See
T. at 20. In discussing “an additional functional opinion from a doctor in January 2019,”
that had an illegible signature, the ALJ recounted that the author noted that plaintiff “had
limitations in her vision . . . [but] [t]his opinion is inconsistent with the lack of visual
findings in the record.” Id. Plaintiff avers that the 2019 medical statement is from PA
Gaskill. See Dkt. No. 14 at 20. The medical statement contains two circles indicating

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that plaintiff had limited “close vision” and “distance vision.” T. at 575. The record also
reflects that plaintiff complained of “significant worsening of her vision, especially with
nearsighted and accommodation[,]” and she twice reported tunnel vision. Id. at 385;
377, 646. In a letter from Richard Puente, O.D., to PA Gaskill, Dr. Puente explained
that plaintiff complained “of distance and near vision blur.” Id. at 961-62. The letter is
difficult to read but appears to note that “this patient is a presbyopic hyperope OD and
presbyopic compound hyperopic astigma OS, with early lens changes OU, refractive . . .
OD, and no pathological changes associated with diabetes.” Id. at 962. Dr. Puente
“asked the patient to return to [him] in one year for a dilated . . . examination.” Id. As
the Commissioner correctly notes, plaintiff repeatedly denied blurred vision. See id. at
323, 327, 343, 347, 367, 373, 565; see Dkt. No. 17 at 14.
The Court finds that the ALJ did not mischaracterize the evidence. See Laura
Anne H. v. Saul, No. 6:20-CV-397 (TWD), 2021 WL 4440345, at *3-4 (N.D.N.Y. Sept.
28, 2021) (finding that “the ALJ did not mischaracterize the evidence or selectively
parse the record for evidence to support his finding[,]” where both parties cited to
“several pieces of evidence in the record to support” their particular arguments, but
there was substantial evidence to support the ALJ’s decision). Although the record
reflects plaintiff’s occasional subjective complaints about problems related to her
eyesight, there are no objective findings indicating that she has a vision impairment
impacting her ability to work on a regular and continuing basis. See T. at 377, 385, 646;
see Clark v. Comm’r of Soc. Sec., No. 7:13-CV-256 (FJS), 2016 WL 1057047, at *6
(N.D.N.Y. Mar. 14, 2016) (citation and internal quotation marks omitted) (“[T]o the extent
that [the] [p]laintiff points to evidence in the Administrative Record that reasonably might

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support a conclusion that [the plaintiff] is disabled, whether there is substantial evidence
supporting the appellant’s view is not the question on appeal.”). As such, substantial
evidence supports the ALJ’s conclusion that there is a “lack of visual findings in the
record.” T. at 20.
B. Respiratory Limitations
“In rendering an RFC determination, the ALJ must consider objective medical
facts, diagnoses and medical opinions based on such facts, as well as a plaintiff’s
subjective symptoms, including pain and descriptions of other limitations.” Shepard,
2017 WL 5508377, at *8 (citing 20 C.F.R. §§ 404.1545, 416.945). “The RFC
assessment must also include a narrative discussion, describing how the evidence
supports the ALJ’s conclusions, citing specific medical facts, and non-medical
evidence.” Id.; see supra at 15.
Here, the ALJ assessed plaintiff’s obstructive sleep apnea and asthma as severe
impairments. See T. at 12. The ALJ found that plaintiff used an inhaler for her asthma
and “consistently smoked cigarettes throughout the pendency of her claim despite
recommendations to stop.” Id. at 18. The ALJ noted that plaintiff’s “respiratory
examinations have also been consistently normal throughout the record.” Id. (citing id.
at 258, 278, 279, 280, 322, 336, 337, 418, 424). Additionally, she observed that, as a
result of plaintiff’s severe sleep apnea, she was instructed to use a CPAP machine but
had stopped using it in September 2017 and was later only “somewhat compliant.” Id.
at 845; 17-18, 427, 442, 796. When compliant, plaintiff reported good symptom control.
See id. at 19, 411. Dr. Puri opined that plaintiff should “not be in an environment which
will increase her respiratory complaints or her skin conditions.” Id. at 282. The ALJ

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found Dr. Puri’s “opinions are generally consistent with the claimant’s respiratory
impairments and her psoriasis, but are also consistent with her non-compliance with
treatment (smoking) and her improvement when getting Stelara injections[.]” Id. at 20.
Dr. Dickerson opined that plaintiff should avoid concentrated exposure to fumes, odors,
dusts, gases, and poor ventilation. See id. at 69. The ALJ found that Dr. Dickerson’s
opinion was “consistent with the claimant’s respiratory diagnosis[.]” Id. at 19.
The record reflects that plaintiff denied respiratory problems and had normal
chest and lung examinations. See T. at 248, 267, 274, 306, 309, 314, 317, 320, 331,
343-44, 379, 418, 662-63, 678-79, 745, 779, 786, 815. Dr. Puri opined that plaintiff had
“a history of asthma with chronic bronchitis, with episodes of shortness of breath that
increase with exertion and heat[,] [but] decrease with inhaler medication when required.”
Id. at 278. PA Gaskill referred plaintiff to a pulmonary physician, id. at 421, who
diagnosed plaintiff with COPD. See id. at 424-25, 435, 796, 868. Plaintiff’s symptoms
were “baseline” and “clinically stable[,]” and she was prescribed numerous medications.
Id. at 413-14, 424-25, 429, 435, 794-95. The record contains multiple pulmonary tests
throughout 2017 and 2018. See id. at 415, 420, 426, 432, 437. A spirometry test from
January 2018 showed “Moderate Obstructive Airways Disease.” Id. at 426. Plaintiff’s
spirometry test in April 2018 revealed “Moderately severe Obstructive Airways DiseaseReversible Features-worse than 1/2/18.” Id. at 420.
The Commissioner correctly notes that the ALJ considered plaintiff’s asthma,
sleep apnea, and associated pain and fatigue in her RFC determination and
accommodated for them by limiting plaintiff’s exposure to extreme heat, cold, humidity,
and atmospheric conditions. See Dkt. No. 17 at 11-12; see also T. at 16, 19. However,

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in performing her severity, Listings, and RFC analyses, the ALJ did not account for
plaintiff’s COPD; therefore, the Court “cannot determine why the ALJ may or may not
have ‘rejected’ the evidence of COPD . . . , because she failed to mention it at all.”
Shepard, 2017 WL 5508377, at *9, 11 (remanding where the ALJ “failed to mention” any
respiratory issue or condition at step 2 but the plaintiff was “either diagnosed with COPD
or asthma,” had “normal” lung examinations, “x-rays show[ed] decreased lung volume”
and the record contained a pulmonary function test). “[N]either plaintiff’s counsel nor
defense counsel could interpret [plaintiff’s tests] accurately, nor could either counsel or
the [C]ourt determine what effect such test results could have on plaintiff’s functional
abilities, including the ability to perform a full range of [] work.” Id. at *10. The ALJ
erred in her RFC analysis because she does not address—either explicitly or
implicitly—plaintiff’s COPD diagnosis, pulmonary testing, prescribed medication, or
treatment progress. Compare Tracy W. v. Comm’r of Soc. Sec., No. 8:18-CV-1311
(TJM), 2020 WL 858616, at *6 (N.D.N.Y. Feb. 21, 2020) (finding that “a reasonable
mind [could] find ‘adequate [] support’ [for] the ALJ’s determination[]” where the ALJ
noted the plaintiff had “a history of chronic obstructive pulmonary disease” but had
normal pulmonary function tests) (citation omitted), with Riechl v. Barnhart, No. 02-CV6169 (CJS), 2003 WL 21730126, at *13 (W.D.N.Y. June 3, 2003) (remanding where
“the ALJ did not discuss the pulmonary function tests results in the record . . . or
indicate whether or not those results met or equaled an impairment listed in Appendix 1,
Subpart P, of the regulations.”). The Court next must assess whether this error was
harmless.

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The Commissioner argues that “[e]ven if the ALJ erred” as it relates to
considering plaintiff’s COPD, the error is harmless because plaintiff failed to identify any
specific “respiratory limitations beyond what the ALJ included in the RFC finding[,]” and
the jobs the vocational expert (“VE”) identified at plaintiff’s hearing would not expose her
to respiratory irritants. Dkt. No. 17 at 12. This Court agrees.
“Where application of the correct legal principles to the record could lead only to
the same conclusion, there is no need to require agency reconsideration.” Zabala v.
Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (alterations omitted) (quoting Johnson v.
Bowen, 817 F.2d 983, 986 (2d Cir. 1987)). “[A]ny error to include environmental
limitations in the RFC determination [can] be harmless error because the positions
identified by the vocational expert do not require exposure to atmospheric conditions
such as dusts, fumes, and gases.” Kenyon v. Comm’r of Soc. Sec., No. 5:16-CV-0260
(WBC), 2017 WL 2345692, at *5 (N.D.N.Y. May 30, 2017). Here, the jobs the VE
identified do not require exposure to weather, extreme cold, extreme heat, wet and/or
humid conditions, or atmospheric conditions. See Dkt. No. 17 at 12, n.12 (citing
Dictionary of Occupational Titles §§ 211.462-010, 1991 WL 671840 (parking lot
cashier); 209.687-026, 1991 WL 671813 (mail clerk); 323.687-014, 1991 WL 672783
(housekeeper/cleaner)).
The ALJ did not discuss plaintiff’s COPD, whether any medical opinions
assessed her ability to tolerate respiratory irritants as a result, or the extent to which the
respiratory limitation in her RFC was based on her COPD. See Long v. Colvin, No.
3:12-CV-578 (GLS/ESH), 2013 WL 3051601, at *7 (N.D.N.Y. June 17, 2013) (“[I]t is too
much of a stretch to say that [the] ALJ [] took into consideration the specific nature and

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extent of [the] plaintiff’s asthma[] . . . [where the] analysis is totally silent with respect to
[] asthma.”). Neither Dr. Puri or Dr. Dickerson considered plaintiff’s COPD or the
spirometry tests when determining that plaintiff should “not be in an environment which
will increase her respiratory irritants” or that she should avoid concentrated exposure to
dust and fumes. T. at 282; 65, 69. Although spirometry tests indicate that plaintiff had
moderate obstructive airway disease, nothing in the record sets forth any respiratory
limitations specific to plaintiff’s COPD that require greater environmental limitations than
those included in the RFC. See id. at 411, 416, 420, 426, 431; see Long, 2013 WL
3051601, at *7 (The plaintiff’s “subjective view of the impact of asthma on her ability to
work is no more competent than opinions of treating physicians, administrative law
judges or reviewing court judges on the subject of an available occupational base.”).
Plaintiff contends that her COPD causes “excessive daytime sleepiness, witnessed
apnea during sleep, snoring, sleepiness when sedentary, unrefreshing sleep, impaired
concentration, memory problems, and weight gain.” Dkt. No. 14 at 19. The records
plaintiff cites to support this contention indicate that the symptoms were a result of “a
sleep disorder[] . . . [and] [a]ssociated symptoms include morning headaches, shortness
of breath (has COPD, asthma and sarcoidosis) and depression.” T. at 411, 416, 421,
427, 433. As plaintiff points to medical no record demonstrating that her COPD requires
more significant respiratory irritant limitations, or that her COPD causes any nonrespiratory symptoms, the ALJ’s determination that plaintiff could tolerate occasional
exposure to atmospheric conditions is not based on a “best guess” but on the record
before her. Rial v. Comm’r of Soc. Sec., No. 17-CV-1128L (DGL), 2019 WL 3296617,
at *2 (W.D.N.Y. July 23, 2019) (determining that an ALJ erred where “the extent of [the

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respiratory] limitation was not derived from any medical opinion, or from any of the
objective medical evidence of record, and appears to have been a speculative ‘best
guess’ by the ALJ, based on his interpretation of the raw medical evidence.”).
The VE was asked whether jobs would be available to a hypothetical claimant
who could tolerate “occasional exposure” to, among other things, atmospheric
conditions. T. at 55; see, e.g., Sally W. o/b/o of Catherine S. v. Saul, No. 5:19-CV-0993
(GTS/ML), 2020 WL 6465446, at *5, n.1 (N.D.N.Y. Sept. 25, 2020), report and
recommendation adopted sub nom., 2020 WL 6445919 (N.D.N.Y. Nov. 3, 2020) (“[T]o
the extent that there was any error in the RFC with respect to the level of pulmonary
irritants that Claimant could be exposed to, that error was harmless based on the
vocational expert’s testimony that Claimant could perform past work . . . if she was
required to ‘avoid dust, fumes, and respiratory irritants.’”). “The Commissioner
recognizes only ‘occupational reference materials or services of a [Vocational
Specialist]’ as authoritative evidence on this abstruse subject.” Long, 2013 WL
3051601, at *7. Although the VE was not asked if jobs were available to a hypothetical
plaintiff who could never be exposed to respiratory irritants, the jobs the VE testified to
do not require any exposure to atmospheric conditions; as such, the ALJ’s silence on
plaintiff’s COPD is harmless error and remand is not warranted on this ground. See,
e.g., T. at 575 (indicating that plaintiff could never be exposed to respiratory irritants in
the 2019 medical statement); but see Cichocki v. Astrue, 729 F.3d 172, 178, n.3 (2d Cir.
2013) (per curiam) (citing Mongeur, 722 F.2d at 1037) (explaining that an ALJ need not
explicitly mention all medical conditions and evidence for her determination to be based

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on substantial evidence so long as her rationale can be otherwise gleaned from her
decision.)
C. Weight of Opinions
Plaintiff argues that the ALJ erred insofar as she “discounted PA Gaskill’s
opinion, and instead, . . . adopted Dr. Dickerson’s findings almost verbatim.” Dkt. No.
14 at 24. Specifically, plaintiff contends that, because “[t]he record since Dr.
Dickerson’s review is much more robust than existing on June 6, 2017, and virtually all
of the treatment notes of [plaintiff’s] multiple specialists were not reviewed by Dr.
Dickerson[],” the ALJ’s reliance on Dr. Dickerson’s opinions was in error. Id. at 23.
Moreover, plaintiff contends that because the ALJ could not discern the author of the
2019 medical source statement, see T. at 20 (citing id. at 575-76), “the ALJ did not
consider the [author’s] treatment relationship, the supportability of the opinion, or the
consistency of the opinion with the record as a whole.” Id. at 22. The Commissioner
argues that the ALJ properly credited PA Gaskill’s and Dr. Dickerson’s medical opinions
because PA Gaskill was not an acceptable medical source, the 2019 medical statement
was a preprinted form and not a narrative opinion, and the ALJ reached a more
restrictive RFC than Dr. Dickerson suggested. See Dkt. No. 17 at 17-21.
For claims, like plaintiff’s, that were filed before March 27, 2017, ALJs are
required to follow the treating physician rule set forth in 20 C.F.R. §§ 404.1527 and
416.927 (2012)—“which generally requires a measure of deference to the medical
opinion of a claimant’s treating [source].” Halloran, 362 F.3d at 31. Unless a treating
source’s opinion is given controlling weight, the ALJ must explain the weight given to
the opinions of a State agency consultant, as the ALJ must do for any opinions from

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treating sources, nontreating sources, and other nonexamining sources. See 20 C.F.R.
§ 404.1527(e)(2)(ii) (2012). “The report of a State agency medical consultant
constitutes expert opinion evidence which can be given weight if supported by medical
evidence in the record.” Frye ex rel. A.O. v. Astrue, 485 F. App’x 484, 487 (2d Cir.
2012) (summary order) (citing 20 C.F.R. § 416.927(e)(2)(i) (2012)); see Calvin E. v.
Saul, No. 5:18-CV-060 (CFH), 2019 WL 2869681, at *6 (N.D.N.Y. July 3, 2019)
(collecting cases). “[T]he mere addition of medical records after a State agency medical
examiner’s review [will] not [automatically] render the examiner’s opinion invalid.”
Carthron-Kelly v. Comm’r of Soc. Sec., No. 5:15-CV-0242 (GTS/WBC), 2017 WL
9538379, at *6 (N.D.N.Y. Sept. 25, 2017). “While medical source opinions that are
conclusory, stale, and based on an incomplete medical record may not be substantial
evidence to support an ALJ finding . . . this is not true where such opinions are
supported by substantially similar findings in treatment notes and other opinions in the
record[.]” Id. at *4 (citations and internal quotation marks omitted).
As to the opinion of a physician’s assistant, “[w]hile an ALJ may consider
evidence from a PA, such a source is not an ‘acceptable medical source’ and therefore
cannot constitute a ‘treating source.’” Evans v. Colvin, 649 F. App’x 35, 38 (2d Cir.
2016) (summary order) (quoting 20 C.F.R. §§ 404.1502, 404.1513(d)(1)). “The Second
Circuit has made clear that an ALJ is not required to defer to such a source ‘under the
treating source rule, but merely to consider [a PA’s] opinion as with any other probative
evidence.’” Adam T. v. Comm’r of Soc. Sec., No. 6:20-CV-00492 (TJM), 2021 WL
4519809, at *6 (N.D.N.Y. Oct. 4, 2021) (alteration in original) (quoting Evans, 649 F.
App’x at 38-39). “Nonetheless, an ALJ must weigh that opinion according to a number

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of factors, including the length, nature, and extent of the treatment relationship and the
frequency of examination; evidence in support of the opinion; the opinion’s consistency
with the record as a whole; and other relevant factors.” Evans, 649 F. App’x at 39
(citing 20 C.F.R. § 404.1527(c)); see 20 C.F.R. § 404.1527(f)(1). Generally, the ALJ
should explain the weight given to a PA’s opinion “or otherwise ensure that the
discussion of the evidence in the determination or decision allows a claimant or
subsequent reviewer to follow the [ALJ]’s reasoning, when such opinions may have an
effect on the outcome of the case.” Lydia L. v. Saul, No. 3:19-CV-1084 (DJS), 2020 WL
7629450, at *5 (N.D.N.Y. Dec. 22, 2020) (quoting SSR 06-03p, 2006 WL 2329939, at
*6); Adam T., 2021 WL 4519809, at *6 (remanding where the PA’s treatment record
included reference to other treatment providers and prescribed medications that may
have “influenced her opinion in her medical source statement” which “appear[ed] to
assess that [the] [p]laintiff was limited beyond” the hypotheticals presented to the VE,
and according greater wight to the PA’s opinion may have changed the ALJ’s opinion).
In Russell v. Comm’r of Soc. Sec., the ALJ afforded “significant weight” to the
state agency physician’s opinion. No. 5:13-CV-1398 (TJM), 2015 WL 5602939, at *3
(N.D.N.Y. Sept. 22, 2015). The state agency physician rendered his opinion in
November 2010, but the plaintiff continued to be treated by his treating physician until
October 2011. See id. The Court held that the ALJ’s decision to afford the state
agency physician’s opinion great weight was not supported by substantial evidence
because he “did not have the benefit of a large portion of the medical record, and a
portion which appeared to show that” the plaintiff’s limitation had worsened. Id. at *4;
but see Wilson v. Saul, No. 3:18-CV-01097 (WWE), 2019 WL 2603221, at *11 (D.

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Conn. June 25, 2019) (holding that the ALJ’s RFC was based on substantial evidence
because “the ALJ did not solely rely on the State agency doctors[’] physical RFC but on
the entirety of the record[,]” and “there is no indication that the later received medical
evidence would have had any effect on the” consultative examiners’ opinions). By
contrast, this Court upheld an ALJ’s RFC determination and decision to afford a state
agency consultant’s opinion “significant weight” because the plaintiff “failed to show that
the [later-added] additional records contained information that was contrary to [the
consultative examiner’s] findings or the ALJ’s ultimate RFC determination.” CarthronKelly, 2017 WL 9538379, at *4, 6; see also Lydia, 2020 WL 7629450, at *4 (remanding
where the PA’s “lengthy treatment experience may provide special insight into [the]
[p]laintiff's physical functional limitations”; and her treatment, and the resulting functional
limitations, formed the basis of the ALJ's RFC determination.).
1. PA Gaskill
The ALJ explained that plaintiff’s treatment with PA Gaskill began in March 2017
and plaintiff’s initial physical examination was normal. See T. at 17 (citing id. at 273275). The ALJ noted that plaintiff “reported few-to-no flares of her psoriasis[,] . . . and in
May 2017 [] she exhibited a normal spine, full strength in her extremities, and full range
of motion and no tenderness in her joints.” Id. (citing id. at 629-32).8 The ALJ also
referenced the 2019 medical statement that plaintiff contends PA Gaskill authored. See
id. at 20; Dkt. No. 14 at 20-21. The ALJ noted that the 2019 medical statement “is
difficult to read and the signature is illegible. As such, it is difficult to ascertain who this

8

The ALJ cites to Exhibit 2F at page 25 in the administrative transcript—a citation which the Court cannot
identify.

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treatment source is and upon what they base their opinions.” T. at 20. Regardless, the
ALJ reviewed the 2019 medical statement’s findings which explained that plaintiff
could not work any hours and could lift nothing, could stand for 60 minutes
and sit for two hours total in a workday, and had significant limitations
balancing, stooping, bending, tolerating environmental changes. This
doctor also noted the claimant could frequently use her right and, raise her
arms above her shoulder, and operate a motor vehicle, would need to
frequently elevate her legs, and had limitations in her vision ([see T. at
775-76]). This opinion is inconsistent with the lack of visual findings in the
record. Although the claimant testified she has to elevate her legs
frequently, the treatment record does not contain such a report and thus
this portion is also inconsistent with the treatment record. For these
reasons, these opinions are given little weight.
Id. The ALJ gave the 2019 medical statement “little weight” because “[t]his
opinion is inconsistent with the lack of visual findings in the record. Although the
claimant testified she has to elevate her legs frequently, the treatment record
does not contain such a report and thus this portion is also inconsistent with the
treatment record.” Id.
The record reflects an extensive treatment history with PA Gaskill
throughout 2017 and 2018. See T. at 273-75, 617-19, 629-32, 646-50, 652-55,
672-75, 696-98, 722-24, 743-47, 768-76, 788-91, 802-06, 834-37, 863-69, 89093. These records reflect numerous diagnoses: diabetes, hypertension,
depression, mixed hyperlipidemia, hypothyroidism, anxiety, COPD, and obesity.
See id. PA Gaskill also referred plaintiff to other physicians, and referenced
these visits in her treatment notes. See, e.g., id. at 788 (“[Plaintiff] sees Dr.
Hassan for seizures and he increased her gabapentin but that has not been
helpful.”); id. at 396-410 (referring plaintiff to Dr. Nancy Dean-Grosack for
diabetes); id. at 746 (noting that plaintiff has an appointment with Dr. Ojugbell for

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excision and biopsy”); id. at 655 (noting that plaintiff “has a neuro consult on
8/24/17”); see Adam T., 2021 WL 4519809, at *7 (“[The] PA [] references that
[the] [p]laintiff was treating with or seeking treatment from other providers . . .
The ALJ should have analyzed whether this information known to [the] PA []
influenced her opinion in her medical source statement.”). Moreover, in
presenting hypotheticals to the VE, plaintiff’s representative inquired whether
there would exist any jobs in the national economy for an individual who “could
only sit two hours in an entire work day, [and] can stand for one hour during an
entire work day”—consistent with the 2019 medical statement. Id. at 57. The VE
testified that there would be no work available. See id.
The ALJ gave “little weight” to the 2019 medical statement but analyzed only
whether the opinion was consistent with the record as it relates to plaintiff’s vision and
need to elevate her leg. T. at 20. The Commissioner argues that it is appropriate to
discount the 2019 medical statement because pre-printed check-box or fill-in-the-blank
forms have limited use or probative value; and, in the alternative, the ALJ did not
discount the opinion because of the illegible signature, but “because it was inconsistent
with the record.” Dkt. No. 17 at 18; 17.
First, the signature on the medical statement is illegible; therefore, the Court
cannot determine that it belongs to PA Gaskill. See T. at 576. Second, “[f]orm reports
of this sort are, by their nature, of limited evidentiary value.” Scitney v. Colvin, 41 F.
Supp. 3d 289, 301 (W.D.N.Y. 2014) (finding it appropriate for the ALJ to give little weight
to a check-box form and noting the inconsistencies between that form and the
physician’s treatment notes). However, the ALJ did not discount the opinion for this

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reason. See T. at 20. The ALJ discounted the opinion because the findings related to
plaintiff’s vision and need to elevate her legs were unsupported. See id. The ALJ made
no findings as to the remainder of the opinion, nor indicated whether it was given any
weight based on its consistency with the record. See id.; see Drollette v. Colvin, No.
8:13-CV-0280 (GTS/CFH), 2014 WL 2880022, at *6 (N.D.N.Y. June 23, 2014) (“While
the ALJ is empowered with the discretion to afford less than controlling weight, or even
no weight, to the opinion of ‘other sources’, the ALJ has a duty to address and discuss
the opinion.”). For example, the 2019 medical statement noted that plaintiff could
“never . . . [t]olerate dust, smoke, or fumes exposure[,]” which is consistent with Dr.
Dickerson’s finding that plaintiff should avoid concentrated exposure to dust and fumes.
Id. at 575; 69; see supra at 27 (quoting Zabala, F.3d at 409); see also 20 C.F.R. §
404.1527(c)(4) (2012) (“Generally, the more consistent an opinion is with the record as
a whole, the more weight we will give to that opinion.”). Moreover, the VE’s testimony
demonstrated that, had the medical statement’s opined limitations been included,
plaintiff could not work. See, e.g., Adam T., 2021 WL 4519809, at *6.
The ALJ also made only passing reference to PA Gaskill’s treating relationship
with plaintiff but did not discuss her lengthy treatment record. See T. at 17. As
explained, these treatment records reveal multiple diagnoses, referrals to other
physicians, and plaintiff’s medication history and its effect. See id. at 273-75, 617-19,
629-32, 646-50, 652-55, 672-75, 696-98, 722-24, 743-47, 768-76, 788-91, 802-806,
834-37, 863-69, 890-93. “The Regulations require the ALJ to engage in a detailed
analysis of [a PA’s] treatment and provide ‘good reasons’ for discounting her opinions.”
Drollette, 2014 WL 2880022, at *6; cf. Grisel A. v. Kijakazi, No. 3:20-CV-00719 (TOF),

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2021 WL 4350565, at *4 (D. Conn. Sept. 24, 2021) (affirming the ALJ’s decision where
“the ALJ extensively set forth his reasons for concluding that [the] PA[’s] [] opinions
were inconsistent with the other ‘medical evidence on record.’”). As such, remand is
warranted for the ALJ to attempt to determine the author of the 2019 medical statement,
and what, if any, weight is assigned to the remainder of it; and to address PA Gaskill’s
full treatment history more thoroughly.
2. Dr. Dickerson
The ALJ “place[d] great weight in the opinions of Determination Services
consultant R. Dickerson, M.D., . . .” T. at 19. Dr. Dickerson authored his disability
determination on June 6, 2017. See id. at 72. Dr. Dickerson reviewed Dr. Puri’s
physical consultative examination report, Dr. Shapiro’s psychological consultative
report, and plaintiff’s 2017 medical records. See id. at 63-64, 67-68. Dr. Dickerson
opined that plaintiff “could sit, stand, or walk for six hours, could work at a light
exertional level, and needed to avoid concentrated exposure to pulmonary irritants.” Id.
(citing id. at 61-72). The ALJ found this assessment to be consistent with plaintiff’s
“respiratory diagnosis”; her “reports that she could drive, go shopping, care for her
personal needs, and go out by herself”[;] and her “improvement with Stelara injections
and the full range of motion and negative straight leg testing noted through the record[.]”
Id. (citing id. at 278-84, 257-58, 324, 328). The ALJ expressed that,
[a]s a Disability Determination Services consultant, Dr. Dickerson is
familiar with Social Security policies, guidelines, and regulations.
Although additional limitations were added to the residual functional
capacity based on evidence submitted after Dr. Dickerson’s review, their
opinion is generally consistent with the record as a whole and given great
weight.

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Id. Confusingly, the ALJ gave consultative examiner Dr. Puri’s opinion “partial weight”
because Dr. Puri “only saw [plaintiff] once and had no treating relationship[,]” and his
“opinion does not consider the subsequent records showing some carpal tunnel
syndrome in [plaintiff’s] left wrist”—circumstances that also apply to Dr. Dickerson. Id.
at 20.
The record before the ALJ contained an abundance of medical records from
2018 and Dr. King’s 2019 records which Dr. Dickerson did not review. See T. 756-976.
Dr. Dickerson “did not have the benefit of a large portion of the medical record,” which
among other things, diagnosed plaintiff with carpal tunnel syndrome and showed
radiculopathy of the spine. Russell, 2015 WL 5602939, at *3; see T. at 967, 969-70,
975. These records show that as a result of plaintiff’s carpal tunnel, she was having
“numbness and tingling in both hands” and she “drop[s] items.” T. at 966. Dr. King
recommended plaintiff wear “bilateral cockup wrist splints . . . while sleeping and if
helpful during the day as tolerated.” Id. at 967. Dr. King also prescribed plaintiff
medications to manage her carpal tunnel and later noted that the splints appeared to be
helping and recommended their continued use. See id. at 967, 970. The ALJ expressly
noted that “additional limitations [were added] to the residual functional capacity based
on evidence submitted after Dr. Dickerson’s review[,]” and that plaintiff’s “reaching
limitations further consider problems due to her carpal tunnel.” Id. at 19. However, the
ALJ determined that plaintiff “could frequently reach, handle, finger, and feel with both
upper extremities.” Id. at 16. Dr. Dickerson opined that plaintiff could have unlimited
exposure to extreme cold, extreme heat, wetness, and humidity, but would need to
avoid concentrated exposure of fumes, odors, dusts, gases, and poor ventilation. See

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id. at 69. The ALJ stated that Dr. Dickerson’s findings were “consistent with [plaintiff’s]
respiratory diagnosis”; however, it is unclear to which respiratory diagnosis the ALJ is
referring because the record she cited references plaintiff’s COPD and obtrusive sleep
apnea and noted that plaintiff should “continue with Cpap therapy.” Id. at 19; 414.
Moreover, Dr. Dickerson did not consider plaintiff’s carpal tunnel diagnosis or
radiculopathy of the spine, as reflected in Dr. King’s records; PA Gaskill’s extensive
treatment history; or the 2019 medical statement with the unknown author,
recommending greater restrictions. See id. at 61-72; Maxwell H. v. Comm’r of Soc.
Sec., No. 1:19-CV-0148 (LEK/CFH), 2020 WL 1187610, at *5 (N.D.N.Y. Mar. 12, 2020)
(finding that the consultative examiner’s “opinion—upon which the ALJ relied in making
his RFC determination—includes no discussion of or reference to this diagnosis
because [the] [p]laintiff had not yet received any such diagnosis[]”; thus, the “opinion
was stale and it was error for the ALJ to rely on it.”). As Dr. Dickerson did not have the
benefit of the aforementioned records, primarily those diagnosing plaintiff with carpal
tunnel syndrome and requiring her to use wrists splits, the ALJ erred in affording his
opinion “great weight.” T. at 19; see Maxwell H., 2020 WL 1187610, at *5. Accordingly,
remand is required on this ground.

VII. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby:
ORDERED, that plaintiff’s Motion for Judgment on the Pleadings, Dkt. No. 14, is
GRANTED; and it is further

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ORDERED, that defendant’s Cross-Motion for Judgment on the Pleadings, Dkt.
No. 17, is DENIED, and the matter is REVERSED and REMANDED pursuant to
sentence four of 42 U.S.C. § 405(g), to the Commissioner for further consideration of
plaintiff’s radiculopathy diagnosis; and the weight afforded to (1) PA Gaskill’s full
treatment history, (2) the 2019 medical statement from the unknown author, and (3) Dr.
Dickerson’s opinion.
IT IS SO ORDERED.
Dated: January 11, 2022
Albany, New York

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