Maldonado v. Commissioner of Social Security

Filing 32

DECISION AND ORDER: SOCIAL SECURITY APPEAL: denying 24 Motion for Judgment on the Pleadings; granting 29 Motion for Judgment on the Pleadings. For the reasons stated above, pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner& #039;s motion is DENIED, Maldonado's motion is GRANTED, and the case is remanded so that the ALJ may consider the new MRI evidence. The Clerk of Court is respectfully requested to terminate any open motions and close the case. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 1/18/2023) (ama) Transmission to Orders and Judgments Clerk for processing. Modified on 1/18/2023 (ama).

Case 1:21-cv-07594-RWL Document 32 Filed 01/18/23 Page 1 of 25

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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INOCENSIO MALDONADO,
:
:
Plaintiff,
:
:
- against :
:
:
:
COMMISSIONER OF SOCIAL SECURITY,
:
:
Defendant.
:
---------------------------------------------------------------X

1/18/2023

21-CV-7594 (RWL)

DECISION AND ORDER:
SOCIAL SECURITY APPEAL

ROBERT W. LEHRBURGER, United States Magistrate Judge.
Plaintiff Inocensio Nino Maldonado (“Maldonado”), represented by counsel,
commenced the instant action against Defendant Commissioner (the “Commissioner”) of
the Social Security Administration (the “Administration”), pursuant to the Social Security
Act (the “Act”), 42 U.S.C. § 405(g), seeking review of the Commissioner’s decision that
Maldonado is not entitled to Supplemental Security Income benefits (“SSI”) for lack of
disability. The Commissioner moves for judgment on the pleadings pursuant to Rule
12(c) of the Federal Rules Of Civil Procedure and asks the Court to affirm the
Commissioner’s decision.

Maldonado cross-moves for judgment on the pleadings,

seeking an order to remand the case for a further hearing and award attorney’s fees under
the Equal Access To Justice Act, 28 U.S.C. § 2412. For the reasons explained below,
the Commissioner’s motion is DENIED, Maldonado’s motion is GRANTED, and the case
is remanded for further consideration.

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PROCEDURAL HISTORY
Maldonado applied for SSI on July 13, 2018, claiming disability due to a fracture in
his back. (R. 318-23.1) The Administration denied his application. (R. 254, 264-69.)
Maldonado then requested a hearing before an administrative law judge (“ALJ”), which
was held on January 22, 2020. (R. 270-75, 228-53.) Maldonado, appearing without
representation, testified as did a vocational expert (“VE”), Robert Baker. Before issuing
his decision, the ALJ sought, obtained, and considered additional medical records. On
September 29, 2020, the ALJ issued a decision finding Maldonado not disabled. (R. 1226.) On December 1, 2020, again without representation, Maldonado appealed to the
Administration’s Appeals Council and submitted 193 pages of additional medical records.
(R. 312.) The Appeals Council determined that the additional records did not demonstrate
a reasonable probability that the additional evidence would change the outcome. The
Appeals Council denied Maldonado’s request for review on July 8, 2021, making the
ALJ’s decision the final decision of the Commissioner. (R. 1-6.)
Maldonado filed the instant case on September 10, 2021, challenging the
Commissioner’s decision.

(Dkt. 2.)

Maldonado commenced the action pro se, but

counsel appeared for Maldonado on April 1, 2022. (Dkt. 19.) The parties consented to
my jurisdiction for all purposes. (Dkt. 14.) The parties’ motions were fully briefed as of
September 15, 2022.

1

“R.” refers to the administrative record filed on January 20, 2022 (Dkt. 12).
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APPLICABLE LAW
A.

Standard Of Review
A United States District Court may affirm, modify, or reverse (with or without

remand) a final decision of the Commissioner.

42 U.S.C. § 405(g); Skrodzki v.

Commissioner of Social Security Administration, 693 F. App’x 29, 29 (2d Cir. 2017)
(summary order). The inquiry is “whether the correct legal standards were applied and
whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377,
384 (2d Cir. 2004); accord Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).
“‘Failure to apply the correct legal standard constitutes reversible error, including,
in certain circumstances, failure to adhere to the applicable regulations.’” Douglass v.
Astrue, 496 F. App’x 154, 156 (2d Cir. 2012) (quoting Kohler v. Astrue, 546 F.3d 260, 265
(2d Cir. 2008) (remanding for noncompliance with regulations)). Courts review de novo
whether the correct legal principles were applied and whether the legal conclusions made
by the ALJ were based on those principles. See Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987) (reversing where the court could not “ascertain whether [the ALJ] applied
the correct legal principles … in assessing [plaintiff’s] eligibility for disability benefits”);
Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (reversing where the
Commissioner’s decision “was not in conformity with the regulations promulgated under
the Social Security Act”); Thomas v. Astrue, 674 F.Supp.2d 507, 515, 520 (S.D.N.Y.
2009) (reversing for legal error after de novo consideration).
If the reviewing court is satisfied that the ALJ applied the correct legal standards,
then the court must “‘conduct a plenary review of the administrative record to determine
if there is substantial evidence, considering the record as a whole, to support the
Commissioner’s decision.’” Brault v. Social Security Administration, Commissioner, 683
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F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue, 569 F.3d 108, 112
(2d Cir. 2009)). Substantial evidence is defined as “‘more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971)); see also Biestek v. Berryhill,
__ U.S. __, __, 139 S. Ct. 1148, 1154 (2019) (reaffirming same standard).

“The

substantial evidence standard means once an ALJ finds facts, [the court] can reject those
facts only if a reasonable factfinder would have to conclude otherwise.” Brault, 683
F.3d at 448 (internal quotation marks omitted) (emphasis in original); see also 42 U.S.C.
§ 405(g) (“findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive”).
To be supported by substantial evidence, the ALJ’s decision must be based on
consideration of “all evidence available in [the claimant]’s case record.”

42 U.S.C.

§ 423(d)(5)(B). The Act requires the ALJ to set forth “a discussion of the evidence” and
the “reasons upon which [the decision] is based.” 42 U.S.C. § 405(b)(1). While the ALJ’s
decision need not “mention[ ] every item of testimony presented,” Mongeur v. Heckler,
722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam), or “‘reconcile explicitly every conflicting
shred of medical testimony,’” Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting
Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983), the ALJ may not ignore or
mischaracterize evidence of a person’s alleged disability.

See Ericksson v.

Commissioner of Social Security, 557 F.3d 79, 82-84 (2d Cir. 2009) (mischaracterizing
evidence); Kohler, 546 F.3d at 268-69 (overlooking and mischaracterizing evidence); Ruiz

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v. Barnhart, No. 01-CV-1120, 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring
evidence).
Where evidence is deemed susceptible to more than one rational interpretation,
the Commissioner’s conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60,
62 (2d Cir. 1982). The court must afford the Commissioner’s determination considerable
deference and “‘may not substitute its own judgment for that of the [Commissioner], even
if it might justifiably have reached a different result upon a de novo review.’” Jones v.
Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary of Health and
Human Services, 733 F.2d 1037, 1041 (2d Cir. 1984)); Dunston v. Colvin, No. 14-CV3859, 2015 WL 54169, at *4 (S.D.N.Y. Jan. 5, 2015) (same) (quoting Jones, 949 F.2d at
59), R. & R. adopted, 2015 WL 1514837 (S.D.N.Y. April 2, 2015). Accordingly, if a court
finds that there is substantial evidence supporting the Commissioner’s decision, the court
must uphold the decision, even if there is also substantial evidence for the claimant’s
position. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). “The Court, however, will not
defer to the Commissioner’s determination if it is the product of legal error.” Dunston,
2015 WL 54169, at *4 (internal quotation marks omitted) (citing, inter alia, Douglass, 496
F. App’x at 156; Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)).
B.

Legal Principles Applicable To Disability Determinations
Under the Act, a person meeting certain requirements and considered to have a

“disability” is entitled to disability benefits. 42 U.S.C. § 423(a)(1). The Act defines
disability as an “inability to 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 of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). A claimant’s impairments must be “of such
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severity that he 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).
To determine whether an individual is disabled and therefore entitled to disability
benefits, the Commissioner conducts a five-step inquiry. 20 C.F.R. § 416.920. First, the
Commissioner must determine whether the claimant is currently engaged in any
substantial gainful activity. 20 C.F.R. § 416.920(4)(i), (b). If so, the claimant is not eligible
for benefits and the inquiry ceases.
If the claimant is not engaged in any such activity, the Commissioner proceeds to
the second step and must determine whether the claimant has a “severe impairment,”
which is an impairment or combination of impairments that significantly limits the
claimant’s ability to perform basic work activities. 20 C.F.R. § 416.920(4)(ii), (c). If the
claimant does not have an impairment or combination of impairments that are “severe,”
the claimant is not entitled to benefits and the inquiry ends.
If the claimant has a severe impairment or combination of impairments, the
Commissioner continues to step three and must determine whether the impairment or
combinations of impairments is, or medically equals, one of those included in the
“Listings” of the regulations contained at 20 C.F.R. Part 404, Subpart P, Appendix 1. If
the claimant’s impairment or impairments meet or medically equal one of those listings,
the Commissioner will presume the claimant to be disabled, and the claimant will be
eligible for benefits. 20 C.F.R. § 416.920(4)(iii), (d).
If the claimant does not meet the criteria for being presumed disabled, the
Commissioner continues to step four and must assess the claimant’s residual functional

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capacity (“RFC”), which is the claimant’s ability to perform physical and mental work
activities on a sustained basis despite his or her impairments. The Commissioner then
determines whether the claimant possesses the RFC to perform the claimant’s past work.
20 C.F.R. § 416.920(4)(iv), (f), (h). If so, the claimant is not eligible for benefits and the
inquiry stops.
If the claimant is not capable of performing prior work, the Commissioner must
continue to step five and determine whether the claimant is capable of performing other
available work. 20 C.F.R. § 416.920(4)(v), (g), (h). If the claimant, as limited by her RFC,
can perform other available work, the claimant is not entitled to benefits. 20 C.F.R.
§ 416.920(a)(4)(iv), (v). The claimant bears the burden of proof for the first four steps.
Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). Once the claimant has established
that she is unable to perform her past work, however, the Commissioner bears the burden
of showing at the fifth step that “there is other gainful work in the national economy which
the claimant could perform.” Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998) (internal
quotation marks omitted).
THE FACTUAL AND MEDICAL RECORD
The parties’ renditions of the factual and medical record are consistent with each
other, and neither points to any deficiency in the other’s presentation of the facts.
Accordingly, the Court generally accepts both as accurate statements of the record and
recites here a summary of the more salient facts. The issues on appeal to this Court are
focused on Maldonado’s back impairment. Accordingly, the Court’s recitation of the
record does so as well. The Court, however, has reviewed and considered the entire
medical and administrative record.

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A.

Personal History
Maldonado was born on July 8, 1978 and attended school through tenth grade.

(R. 318, 239.) At the time of the hearing in January 2020, Maldonado was living in a
homeless shelter with his nineteen-year-old daughter and receiving public assistance
benefits. (R. 238, 247.) He spent most of his time watching television or using a
computer. (R. 247.)
Maldonado previously worked as a delivery man, stock clerk, waiter, and then cab
driver. (R. 240, 337.) He claims disability primarily due to back injuries suffered as a
result of a bicycle accident. (R. 245-46.) At the hearing before the ALJ, Maldonado
testified that he had fractures in his back, causing pain and making it difficult to bend,
move around, go up and down stairs, and use the subway. (R. 244.) He said that he
could not sit even two minutes due to the pain and that he could walk around only by
holding on to walls and doorways. (R. 244-45.) He asserted that he had trouble moving
his left leg due to problems with his nerves, and that, at times, his back pain shot up to
his neck. (R. 245.)
To treat his pain, Maldonado took over-the-counter medications, such as Tylenol
and Bayer. (R. 248.) Since filing his application in 2018, Maldonado lost his insurance
coverage. (R. 241-42.) He therefore only sought treatment by going to a hospital
emergency room. (R. 241-42, 248.) He testified at the hearing that his pain continued to
worsen. (R. 244.)
B.

The Medical Record
1.

Before Claimed Onset Date

In August 2008, Maldonado was treated for injuries after falling off a bicycle. (R.
423.) X-rays of the lumbar spine revealed mild grade 1 anterolisthesis of L5 on S1 and a
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questionable pars defect at L5.2 (R. 423-24.) X-rays taken of Maldonado’s cervical spine
in June 2014 were negative. (R. 443.)
From February 16, 2018 to July 18, 2018 (the date of claimed disability),
Maldonado’s medical record reflects more frequent medical visits. During a February 16,
2018 visit with a physician’s assistant (“PA”), Maldonado reported that he had been in a
motor vehicle accident in 2012 and had non-radiating neck and lower back pain. He
described his pain as intermittent that worsened with movement and rated his pain at 78 out of 10. (R. 410.)
On May 1, 2018, Maldonado saw the PA for an x-ray referral. Maldonado again
reported neck and lower back pain, which was minimally relieved with pain medication.
He also reported, however, that he was able to do his usual activities. The PA assessed
cervicalgia (neck pain), for which Maldonado refused pain medication, and dorsalgia
(lower back pain), and referred Maldonado for x-rays and physical therapy. (R. 406-07.)
On June 6, 2018, Maldonado saw the PA for follow-up regarding burn wounds on
his ankle. Upon general review of systems, Maldonado denied neck stiffness or pain,
and he reported ability to do his usual activities. (R. 400-01.) In early June 2018,
Maldonado underwent cervical and lumbar x-rays. The cervical x-rays were considered

2

Anterolisthesis, basically another term for spondylolisthesis, is a spine condition in
which the upper vertebral body slips forward onto the vertebra below. Anterolisthesis
Definition, SPINE-HEALTH, www.spine-health.com (select “Pain Glossary” underneath the
“Resources” tab; then select “Anterolisthesis”) (last visited January 18, 2023). “The
amount of slippage is graded on a scale from 1 to 4. Grade 1 is mild (less than 25%
slippage), while grade 4 is severe (greater than 75%).” Id. Pars defect, also referred to
as spondylolysis, is a stress fracture through the pars interarticularis of the lumbar
vertebrae, which is the thin bone segment joining two vertebrae. Spondylolysis, JOHNS
HOPKINS
MED.,
https://www.hopkinsmedicine.org/health/conditions-anddiseases/spondylolysis (last visited January 18, 2023).
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“unremarkable,” but his lumber x-rays showed grade 1 anterolisthesis of L5 on S1 with
L5 pars lysis fractures, mild disc space narrowing at L4/L5 as well as moderate
intervertebral disc space narrowing at L5/S1. (R. 394.)
On June 20, 2018, Maldonado saw the PA for complaints of right knee pain, for
which the PA recommended taking ibuprofen. Upon review of systems, Maldonado again
reported ability to do his usual activities. He denied neck pain or stiffness. (R. 398-99.)
2.

Consultative Medical Opinions

The first medical record following Maldonado’s alleged onset date is from August
23, 2018.

On that day, Dr. Michael Healy, M.D., performed a consultative internal

medicine examination of Maldonado at the request of the Administration. Maldonado
reported chronic back pain, especially when walking and bearing weight on his feet. He
told Dr. Healy that he could walk only two blocks before needing to stop due to pain, that
his lower back pain often radiated to his cervical spine, and that the only medication he
took was ibuprofen. Maldonado said that he could cook, clean, do laundry, and shop but
that the activities caused back pain. (R. 418.)
During the exam, Maldonado appeared in slight discomfort. His gait and stance
were slightly widened, but he could walk on heels and toes without difficulty, did not need
assistance, and had no difficulty rising from a chair. Dr. Healy found that Maldonado had
decreased flexion and extension in the cervical spine of 20 degrees anterior and posterior;
lateral flexion 10 degrees right and left; and rotary motion 40 degrees right and left. Dr.
Healy also found full lateral flexion and rotary movements in Maldonado’s lumbar spine,
but decreased flexion and extension of 45 degrees. Maldonado exhibited decreased
strength – 4 out of 5 – in all four extremities. As to Maldonado’s functional abilities, Dr.

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Healy opined that Maldonado had mild to moderate limitations of sitting, standing,
walking, bending, lifting, and climbing stairs. (R. 419.)
Dr. Healy assessed chronic neck and back pain, previous lumbar spinal fracture,
probable lumbar spinal intervertebral disc disruption, and possible cervical spinal
intervertebral disc disruption as cause of chronic neck pain. (R. 420.)
The following month, on September 4, 2018, an agency medical expert, Dr. S.
Stradley, D.O., performed a consultative review of Maldonado’s medical record but did
not examine Maldonado. Dr. Stradley opined that Maldonado could frequently lift/carry
and push/pull up to 10 pounds frequently, and 20 pounds occasionally; stand/walk about
six hours of an eight-hour workday, and sit for about six hours of an eight-hour work day;
occasionally climb ramps, stairs, ladders, ropes and scaffolds; and occasionally stoop,
bend, crouch and crawl, with unlimited ability to balance. (R. 260-61.)
3.

Records After Onset Date And After Consultative Opinions

In February 2019, Maldonado went to the emergency room at Mount Sinai Hospital
to be treated for an upper respiratory infection. Although his chart notes a past history of
chronic back pain, at admission he denied back or neck pain. (R. 155-56.) In December
2019 he went to the hospital emergency room with flu like symptoms. Although a history
of back pain was noted in his chart, his physical examination was considered normal. (R.
128.)
On February 3, 2020, Maldonado was seen at the hospital by Dr. Anthony Vincent
Christiano for a complaint of back pain. Maldonado stated that he had fractured his spine
at the L4/L5 level and had worsening pain along his entire left side, extreme sensitivity of
his lumbar spine, and numbness/tingling in his left upper and lower extremity. Maldonado
reported difficulty putting on his socks but stated he was not taking any medication. Upon
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examination, Maldonado had 5/5 strength in his lower extremities. Dr. Christiano ordered
x-rays, nonsteroidal anti-inflammatory medications, and physical therapy.

In an

addendum to the report, Dr. Christiano noted the absence of any fracture upon review of
Maldonado’s pelvic/lumbosacral x-rays, although he did have L5/S1 anterolisthesis. (R.
32-34, 214-18.)
On May 7, 2020, Maldonado was treated at the emergency room for nasal
congestion and drainage. He had no other complaints but was noted to have a history of
back pain. Upon review of systems, Maldonado denied back or neck pain and had a
normal range of motion. (R. 95-98.) On August 20, 2020, Maldonado was treated at the
emergency room for an abscess and swelling of his jaw. History of back pain was noted
in the medical chart. Upon review of systems, however, Maldonado did not report any
joint or muscle pain, and had normal ranges of motion with no tenderness. (R. 62-65.)
The ALJ issued his decision on September 29, 2020. (R. 12-26.) On October 29,
2020, Maldonado saw a doctor at Mount Sinai Hospital’s orthopedics department for a
complaint of back pain. The doctor referred Maldonado for an MRI of his lumbar spine.
Maldonado submitted the record of this visit to the Appeals Council. (R. 5-11.)
4.

Record Newly Submitted In The Instant Action

With his brief filed on August 25, 2022, Maldonado included for the first time a
medical record of an MRI from December 13, 2020, approximately two-and-a-half months
after the ALJ issued his decision. (Pl. Mem. at 15-17.3) According to the report, the MRI
showed that Maldonado had bilateral pars defects at L5 with 7 mm grade 1 anterolisthesis

3

“Pl. Mem.” refers to Plaintiff’s Memorandum Of Law In Support Of Plaintiff’s Motion For
Judgment On The Pleadings, at Dkt. 30.
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of L5 on S1, and “moderate to severe bilateral foraminal stenosis” and “impingement of
the bilateral L5 nerve roots.” (Pl. Mem. at 16.)
C.

Vocational Expert Testimony
At the hearing, the ALJ asked VE Baker whether there were jobs in the national

economy that could be performed by an individual of Maldonado’s age, with his education
and work experience, who was able to perform sedentary work that required only
occasional climbing of ramps and stairs, but no climbing ladders or scaffolds, and
occasional balancing, stooping, and crouching, but no kneeling or crawling. In response,
VE Baker opined that such an individual could perform sedentary work and gave three
examples from the Department of Labor’s Dictionary of Occupational Titles: a “call out
operator,” of which there an estimated 4,573 employed nationally, a “telephone quotation
clerk,” of which there are 3,560 employed nationally, and a “stuffer,” of which there are
4,198 employed nationally. (R. 250-51.) There would be no available jobs, however, if
the individual needed to be able to sit or stand at will or if the individual would miss two
workdays per month. (R. 251.)
D.

The ALJ’s Decision
The ALJ followed the requisite five-step analysis. (R. 17-22.) At step one, he

found that Maldonado had not been engaged in substantial gainful activity since July 13,
2018, the application date. At step two, he found that Maldonado had two severe
impairments – dorsalgia and cervicalgia, as well as non-severe impairments consisting of
acute right knee disorder, superficial burn on right foot, partial thickness burn of right
ankle, and depression. The ALJ determined at step three that none of Maldonado’s
impairments separately or in combination met a listing. The ALJ then determined that
Maldonado had the RFC to perform sedentary work limited to only occasional climbing of
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ramps and stairs, no climbing of ladders or scaffolds, occasional balancing, stooping, and
crouching, but no kneeling or crawling. At step four, the ALJ determined that Maldonado
could not perform past relevant work. At step five, however, the ALJ found, based on the
VE’s testimony, that there are significant numbers of jobs in the national economy that
Maldonado could perform.
In determining Maldonado’s RFC, the ALJ noted the three objective diagnostic test
results for Maldonado’s back then of record, namely the June 2014 cervical x-rays that
were negative; the June 2018 cervical x-rays that were unremarkable; and the June 2018
lumbar x-rays showing a number of mild to moderate findings, including lumbar
dextroscoliosis, grade 1 anterolisthesis, fractures, and mild to moderate narrowing
between discs. (R. 20.) The ALJ concluded that the clinical tests of record “do not reflect
findings that would prevent the claimant from engaging in the … limited range of
sedentary work [set forth in the ALJ’s RFC determination] on a regular and continuing
basis.” (R. 21.) As noted above, the December 2020 MRI results were not of record
before either the ALJ or the Appeals Council.
The ALJ also assessed the opinions presented by Dr. Healy, the agency
consultative examiner, and Dr. Stradley, the state agency reviewing examiner. The ALJ
found Dr. Healy’s opinion that Maldonado had a “mild to moderate limitation for sitting,
standing, walking, bending, lifting, and climbing stairs” to be “generally persuasive” as it
was based on a detailed examination and was consistent with other record evidence,
including the diagnostic tests. (R. 21.) The ALJ assessed Dr. Stradley’s opinion that
Maldonado could perform light work to be only “somewhat persuasive” because the

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examination and clinical evidence reflected somewhat greater limitations than those put
forth by Dr. Stradley. (R. 21.)
The ALJ also took into account Maldonado’s variable reports of pain, his reported
activities of daily living, and the absence of invasive procedures such as surgery or
injections. Additionally, the ALJ observed that “there is little ongoing treatment evidence”
of record. (R. 21.)
DISCUSSION
Maldonado does not take issue with the ALJ’s determinations at any of the first
four steps of the sequential analysis; nor does he challenge the ALJ’s determination of
Maldonado’s RFC, at least as based on the record before the ALJ. Rather, Maldonado
challenges the decision on two other grounds. First, he asserts that the ALJ erred at step
five by determining that there was a significant number of jobs in the national economy
available to Maldonado. Second, he argues that the court should consider the recently
submitted December 2020 MRI and remand for a renewed disability determination. The
Court begins its discussion with Maldonado’s second argument.
A.

Remand Is Warranted Based On The New MRI Report
Maldonado asserts that the case should be remanded so that the Commissioner

can take account of the December 2020 MRI showing that Maldonado’s back impairment
had progressed to the point of his having “moderate to severe bilateral foraminal stenosis”
and nerve root impingement. (Pl. Mem. at 16.) The Commissioner argues that the MRI
does not provide grounds for remand because it is not reasonably possible that the ALJ
would have decided the case differently even if he had considered the MRI. The Court
agrees with Maldonado.

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The Act provides that a court “may at any time order additional evidence to be
taken before the Commissioner of Social Security, but only upon a showing that there is
new evidence which is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g) (sixth sentence).
There thus are three requirements for submitting belated evidence: the evidence must be
new and material and there must be good cause for not having incorporated it earlier.
The December 2020 MRI indisputably is new; it did not exist at the time of the ALJ
hearing. See Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004) (“Because the new
evidence submitted by [claimant] did not exist at the time of the ALJ’s hearing, there is no
question that the evidence is ‘new’ and that ‘good cause’ existed for her failure to submit
this evidence to the ALJ”); Simon v. Berryhill, No. 1:16-CV-4088, 2017 WL 4736732, at
*2 (E.D.N.Y. Oct. 19, 2017) (“Here, the evidence did not exist at the time of the ALJ
hearing, so it is new, and good cause existed for [Plaintiff]’s failure to present it earlier”).
Whether there is good cause for Maldonado’s not having provided the MRI report
“in a prior proceeding” is a bit less clear. The MRI was taken, and the report generated,
on or about December 20, 2020. Earlier that month, on December 1, 2020, Maldonado
requested review by the Appeals Council and submitted additional records available at
that time. The MRI report was not available at the time Maldonado requested review.
The Appeals Council did not render its decision, however, until July 8, 2021. Several
months thus passed during which Maldonado could have requested to further supplement
the record. Nothing in the record suggests why he did not do so. As Maldonado points
out, however, he was, at the time, proceeding pro se and residing in a homeless shelter,
and it was not until he obtained representation during the instant proceeding that he

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received a copy of the report and provided it to his attorney. (Pl. Mem. at 10.) Under
these circumstances, the Court finds good cause, and the Commissioner does not argue
otherwise. See Jones, 949 F.2d at 61 (finding that a plaintiff's "pro se status may provide
good cause for [his or her] failure to introduce . . . evidence in the prior proceeding");
Reyes v. Commissioner of Social Security, No. 14-CV-8843, 2016 U.S. Dist. LEXIS
44908, at *89 (S.D.N.Y. March 30, 2016) (“Plaintiff has shown good cause for submitting
the [new records] after the close of the administrative proceedings, because, as a pro se
claimant, he was apparently unaware that these records were missing from the
documents that he submitted to the ALJ”).
The question then becomes whether the new MRI report is material.

New

evidence is material if it is (1) “relevant to the claimant’s condition during the time period
for which benefits were denied,” (2) probative, and (3) there is a “reasonable possibility
that the new evidence would have influenced the Commissioner to decide claimant’s
application differently.” Pollard, 377 F.3d at 193 (internal quotation marks, alterations,
and citation omitted); accord Williams v. Commissioner of Social Security, 236 F. App’x
641, 644 (2d Cir. 2007).

The December 2020 MRI report satisfies each of those

requirements.
First, although the MRI was taken two-and-a-half months after the ALJ’s decision,
the nature of its findings suggest that they are relevant to the condition of Maldonado’s
back prior to the ALJ’s decision. The MRI findings concern the same location in the spine
as that previously reported in x-rays and doctors’ notes. Yet the findings are more severe
than previously found. Rather than being mild to moderate, as found in the June 2018
MRI and by Dr. Healy in August 2018, the MRI report finds that Maldonado’s condition

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was moderate to severe and that there was physical impingement of root nerves. Nothing
in the record indicates that Maldonado experienced any significant new trauma between
the time the ALJ rendered his decision and when the MRI was taken. Accordingly, there
is good reason to believe that the MRI findings are relevant to the period of time for which
benefits were denied. See Pollard, 377 F.3d at 193-94 (“‘[w]e have observed, repeatedly,
that evidence bearing upon an applicant’s condition subsequent to the date upon which
the earning requirement [i.e., insured status] was last met is pertinent evidence in that it
may disclose the severity and continuity of impairments existing before the earning
requirement date or may identify additional impairments which could reasonably be
presumed to have been present….’”) (alterations in original) (quoting Lisa v. Secretary of
Department of Health and Human Services, 940 F.2d 40, 44 (2d Cir. 1991)).
The December 2020 MRI also is probative and presents the possibility that the ALJ
may have reached a different conclusion with respect to Maldonado’s disability claim.
Central to the ALJ’s determination was his recital of the objective diagnostic evidence,
which consisted only of x-rays, the most recent one from June 2018, showing mild to
moderate findings. Based on that diagnostic evidence, the ALJ concluded that the clinical
tests of record “do not reflect findings” that would prevent Maldonado from performing
sedentary work. (R. 21.) The December 2020 MRI, however, reveals moderate to severe
findings and nerve root impingement (a potential cause of radiating pain), both of which
could lead to a conclusion that the more recent diagnostic evidence does reflect findings
precluding sedentary work. In reaching his conclusion, the ALJ noted that Maldonado’s
lack of treatment “makes it difficult to corroborate the claimant’s allegations of functional
limitations with objective findings.” (R. 21.) The MRI provides another objective data

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point in the otherwise sparse treatment record. See Williams, 236 F. App’x at 644 (finding
that new evidence was probative and material because it countered the ALJ’s finding of
insufficient evidence to support plaintiff’s allegations of incapacitating pain).
The Commissioner argues that there is no reasonable possibility that the ALJ
would have decided Maldonado’s case differently based upon the December 2020 MRI.
But in doing so, the Commissioner only underscores why the MRI is significant. For
example, the Commissioner points out that Maldonado mostly had normal findings on
routine musculoskeletal examinations and emphasizes the ALJ’s assessment that
Maldonado’s complaints of pain could not be reconciled with the objective record. (Def.
Reply at 4-5.4) The December 2020 MRI, however, reflects just the opposite: it is far from
a routine finding, and it could well explain Maldonado’s complaints. The MRI is all the
more apt because its findings are more severe than those previously found. See, e.g.,
Pollard, 377 F.3d at 193 (explaining that subsequent evidence of the severity of a
condition suggests that the condition may have been more severe in the past than
previously thought); Williams v. Kijakazi, No. 20-CV-5991, 2022 WL 17491008, at *12
(S.D.N.Y. Dec. 5, 2022) (recognizing materiality of recent MRI “suggesting that Plaintiff
might have been suffering from a substantially more severe spinal impairment than
initially presented to the ALJ”); Simon, 2017 WL 4736732 at * 2 (new x-rays and MRI
showing continued degeneration of Plaintiff’s spine and hips were material to
determination of whether Plaintiff could perform sedentary work). One of the cases on
which the Commissioner relies is distinguishable for precisely that reason. See Jennifer

4

“Def. Reply” refers to Defendant’s Reply Memorandum Of Law In Support Of
Defendant’s Motion For Judgment On The Pleadings And In Opposition To Plaintiff’s
Motion For Judgment On The Pleadings, at Dkt. 31.
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P. v. Berryhill, No. 18-CV-0026, 2019 WL 330529, at *12 (N.D.N.Y. Jan. 25, 2019) (new
MRI of Plaintiff’s knee did not show issues any more severe than anything previously
diagnosed).
The other case on which Commissioner relies is less distinct. See Gemmell v.
Commissioner of Social Security, No. 16-CV-1014, 2017 WL 3328237 (N.D.N.Y. Aug. 2,
2017).

In Gemmell, the court remanded but not based on a new MRI showing

degenerative changes in the Plaintiff’s spine. The court rejected the MRI as not material
because the record before the ALJ showed only scattered references to back pain,
Plaintiff did not seek specific treatment for back pain, and the record did not otherwise
contain evidence of any functional impact of the findings in the MRI. Id. at *10. As the
Commissioner notes, the instant case is somewhat similar in that Maldonado did not
consistently complain of back pain, he did not seek treatment for his back beyond over
the counter medication, and there is no direct evidence of the functional impact of the
MRI.
Nonetheless, the Court cannot reach the same conclusion here. That is because
of the ALJ’s specific reasoning emphasizing the objective evidence and the extent to
which it could be squared with Maldonado’s complaints. To be sure, the ALJ also based
his decision on Maldonado’s relative lack of seeking treatment and his not having
received invasive treatment such as surgery or injections. On remand, the ALJ may reach
the same outcome finding the record demonstrates functional limitations consistent with
performing sedentary work. But there is at least a reasonable possibility that the outcome
may be different upon the ALJ’s consideration of the December 2020 MRI. Accordingly,
the new evidence is material, and remand is warranted.

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The Court now turns to Maldonado’s other basis for review, which concerns the
number of jobs in the national economy that can be performed by someone with
Maldonado’s RFC.
B.

Substantial Evidence Supports The ALJ’s Step Five Determination
At step five, the ALJ must identify the types of jobs the claimant could perform

notwithstanding his disabilities and must “ascertain whether those kinds of jobs ‘exist[ed]
in significant numbers in the national economy.’” Biestek, ___ U.S. at ___, 139 S. Ct.
at1152 (quoting, inter alia, § 404.960(c)(1)). Here, based on the VE’s testimony, the ALJ
identified three examples of sedentary jobs that Maldonado could perform. In total, those
three categories comprised 12,241 jobs. The ALJ found that number sufficient to meet
the requirement that there exists in the national economy significant numbers of jobs that
Maldonado could perform.

Maldonado challenges that conclusion, arguing that the

number of available jobs is not significant enough to support the denial of benefits.
Neither the Social Security Act, nor the applicable regulations, define what is
meant by “significant numbers.” Nor has the Second Circuit set any bright line rule
regarding the number of jobs needed to satisfy the Commissioner’s burden at step five.
Courts in this and other districts within the Second Circuit nonetheless “‘have generally
found that what constitutes a ‘significant’ number is fairly minimal.’” Rodriguez v. Astrue,
No. 11-CV-6977, 2013 WL 3753411, at *3 (S.D.N.Y. July 17,2013) (quoting Fox v.
Commissioner of Social Security, No. 02-CV-1160, 2009 WL 367628, at *20 (N.D.N.Y.
Feb. 13, 2009) (collecting cases)). District courts thus have found varying nationwide
numbers upwards of 9,000 jobs sufficient to meet the significant number requirement.
See, e.g., Rodriguez, 2013 WL 3753411 at *2-3 (12,000 jobs nationwide was significant);

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Kelly D. v. Saul, No. 18-CV-1190, 2019 WL 6683542, at *6 (N.D.N.Y. Dec. 6, 2019) (9,996
jobs nationwide was significant); Debiase v. Commissioner of Social Security, No. 3:19CV-68, 2019 WL 5485269, at *12 (D. Conn. Oct. 25, 2019) (11,442 jobs nationwide
deemed significant); Sanchez v. Berryhill, 336 F. Supp.3d 174, 178 (W.D.N.Y. 2018)
(9,046 jobs nationwide was, consistent with other courts, significant).
Maldonado cites several cases where courts found numbers of jobs exceeding
those available to Maldonado were not significant for purposes of the step five analysis.
See, e.g., Ellis v. Kijakazi, 553 F. Supp.3d 628, 635-37 (E.D. Wis. Aug. 9, 2021) (14,500
jobs nationally was not significant); John C. v. Saul, No. 4:19-CV-04111, 2021 WL
794780, at *6 (C.D. Ill. March 2, 2021) (20,000 jobs nationally was not significant); James
A. v. Saul, 471 F. Supp.3d 856, 860 (N.D. Ind. 2020) (finding “14,500 is far below any
national number of jobs that the Seventh Circuit Court of Appeals has determined to be
significant”); Valencia v. Astrue, No. C 11-06223, 2013 WL 1209353, at *18-19 (N.D. Cal.
March 25, 2013) (finding 14,082 jobs nationally was not significant).
None of those decisions are from courts in the Second Circuit; rather, they are from
either the Seventh Circuit or the Ninth Circuit. Meanwhile, the Commissioner points to
several decisions from courts within several other circuits finding similar or even lesser
numbers to be significant. See, e.g., Taskila v. Commissioner of Social Security, 819
F.3d 902, 905 (6th Cir. 2016) (6,000 jobs nationally was significant); Rogers v. Astrue,
312 F. App’x 138, 142 (10th Cir. 2009) (11,000 jobs nationally was significant); Johnson
v. Chater, 108 F.3d 178, 180 (8th Cir. 1997) (10,000 jobs nationally was significant); Riffee
v. Kijakazi, No. 20-CV-1328, 2021 WL 3913972, at *2-3 (W.D. Pa. Sept. 1, 2021) (11,300
jobs nationally was significant); Vinning v. Astrue, 720 F. Supp.2d 126, 137 (D. Me. 2010)

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(collecting cases and concluding that “numbers of jobs in the ballpark of 10,000 to 11,000
nationwide have been held [to be] ‘significant’”).
In short, the ALJ’s determination at step five is consistent with the weight of
authority in and outside of this Circuit and satisfies the burden of showing that there are
relevant jobs in significant numbers nationally.
The Court so finds with some reservations. The three sedentary jobs that make
up the 12,241 positions to which the VE testified all come from the DOT, which some
have recognized as antiquated and containing numerous obsolete positions that have
been overtaken by progress and modernization over the last 45 years.5 See Lisa Rein,
Social security denies disability benefits based on list with jobs from 1977, WASH. POST
(Dec. 27, 2022), https://www.washingtonpost.com/politics/2022/12/27/social-securityjob-titles-disabled-applicants-obsolete/, (the DOT “lists 137 unskilled, sedentary jobs ….
But in reality, most of these occupations were offshored, outsourced, and shifted to skilled
work decades ago. Many have disappeared altogether”).
Additionally, the reliability of the VE’s job-number figures is suspect. The VE
determined the number of jobs available using something called “Job Browser Pro.” (R.
250.) The ALJ did not solicit, and the VE did not volunteer, any information about the
reliability of that source, the VE’s use of it, or, for that matter, anything else about it. A
recent judicial opinion has characterized the current evidentiary basis for job-number

5

One might question the current relevance of a “call out operator” who uses the telephone
to compile credit information to fulfill subscriber requests (DOT 237.367-014); “telephone
quotation clerk” who answers telephones from customers requesting current stock
quotations or who calls customers to notify them of stock quotations (DOT 237.367-046);
and “stuffer,” alternately known as “blower” or “toy stuffer,” who tends machines that blow
filler into stuffed-toy shells or may stuff toys by hand (DOT 731.685-014).

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determinations in social security cases to be a “systemic” shortcoming: “Since 2008, the
Social Security Administration has been promising courts and claimants alike that a new,
unified job systems – designed to simplify the process of compiling job-number estimates
– will soon be available. More than a decade later, the Administration has not completed
its work. So today’s world is a distinct second best.” Ruenger v. Kijakazi, 23 F.4th 760,
765 (7th Cir. 2022) (Scudder, J., concurring).
Compounding matters, the Administration looks at the number of jobs in a
complete vacuum: “We consider that work exists in the national economy when it exists
in significant numbers either in the region where you live or in several other regions of the
country,” regardless of whether work exists in the claimant’s “immediate” area, whether
job vacancies exist, or whether the claimant would be hired even if he or she applied for
work. 20 C.F.R. § 416.966. One is left to wonder what relevance job numbers have when
they do not take into account real world factors that determine whether a given applicant
can find gainful employment.
These questions must be left to another day. The record before the Court provides
no basis to further examine these seeming deficiencies in the Administration’s means of
determining whether a significant number of jobs exist. Indeed, Maldonado has not
asserted any arguments along those lines. Under the existing framework, and on the
basis of the record in this case, the Commissioner has satisfied its burden at step five of
the sequential analysis. If, however, on remand the ALJ modifies his RFC finding based
on the December 2020 MRI, the ALJ will need to conduct a new step five analysis.
CONCLUSION
For the reasons stated above, pursuant to sentence four of 42 U.S.C. § 405(g), the
Commissioner’s motion is DENIED, Maldonado’s motion is GRANTED, and the case is
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remanded so that the ALJ may consider the new MRI evidence. The Clerk of Court is
respectfully requested to terminate any open motions and close the case.
SO ORDERED,

_________________________________
ROBERT W. LEHRBURGER
UNITED STATES MAGISTRATE JUDGE
Dated: January 18, 2023
New York, New York
Copies transmitted on this date to all counsel of record.

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