Brock v. Commissioner of Social Security

Filing 29

OPINION & ORDER For the foregoing reasons, Plaintiff's Motion for Judgment on the Pleadings is GRANTED, and Defendant's Motion for Judgment on the Pleadings is DENIED. This case is REMANDED for further proceedings consistent with this Op inion and Order. The Clerk is respectfully directed to enter final judgment consistent with this decision and then close the file. SO ORDERED. (Signed by Magistrate Judge Ona T. Wang on 3/26/2024) (jca) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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TERESA B.,
Plain�ff,
-againstCOMMISSIONER OF SOCIAL SECURITY,
Defendant.
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22-CV-1226 (OTW)
OPINION & ORDER

ONA T. WANG, United States Magistrate Judge:
On March 28, 2020, Plain�ff Teresa B. 1 applied for disability insurance benefits (“DIB”).
Plain�ff filed this ac�on pursuant to Sec�on 205(g) of the Social Security Act (“SSA”) against the
ac�ng Commissioner of the Social Security Administra�on, seeking review of the
Commissioner’s denial of Plain�ff’s applica�on for disability insurance benefits. The par�es
consented to magistrate judge jurisdic�on (ECF 28), and have submited a joint s�pula�on in
lieu of mo�ons for judgment on the pleadings. (ECF 23). For the following reasons, Plain�ff’s
mo�on is GRANTED and Defendant’s mo�on is DENIED.

Plain�ff’s name has been par�ally redacted in compliance with Fed. R. Civ. P. 5.2(c)(2)(B) and the
recommenda�on of the Commitee on Court Administra�on and Case Management of the Judicial Conference of
the United States.

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I.

BACKGROUND
A. Administra�ve Proceedings
Plain�ff filed her applica�on on March 28, 2020, for a period of disability and disability
insurance benefits, and her claim was ini�ally denied on August 10, 2020, and subsequently
upon reconsidera�on on October 28, 2020. (ECF 23 at 3). On June 17, 2021, ALJ Lori Romeo
denied Plain�ff’s claims, and on December 7, 2021, the Appeals Council denied Plain�ff’s
request for appeal. (ECF 23 at 4). Plain�ff filed the instant complaint on February 14, 2022,
pursuant to 42 U.S.C. § 405(g). (ECF 1).
B. The ALJ’s Decision (ECF 26) 2
The ALJ found that Plain�ff had severe impairments in her obesity, degenera�ve joint
disease of the ankle, and degenera�ve disc disease of the lumbar spine, but that her
impairments did not meet or medically equal the severity of any of Lis�ngs 1.15, and 1.18. (R. at
18). The ALJ then determined that Plain�ff had the residual func�onal capacity (“RFC”) to
perform sedentary work as defined in 20 C.F.R. § 404.1567(a), except the Plain�ff could li� and
carry ten pounds occasionally and less weight frequently, stand and/or walk two hours and sit
six hours in an eight-hour workday with normal breaks. (R. at 18-19). A�er reviewing the
voca�onal expert’ (“VE”) tes�mony, the ALJ found that Plain�ff could not con�nue her past
work as a �cket agent, but could work as a document clerk, bench assembler, or electronics
inspector. (R. at 22-24).

The administra�ve record is filed at ECF 26 and subparts. Where an ECF number is cited, a page reference will be
to the ECF page number. If ci�ng to the record (“R.”), the page reference will be to the record page.

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C. Procedural History
Plain�ff commenced this ac�on by filing a complaint on February 14, 2022. (ECF 1). The
par�es filed the joint s�pula�on in lieu of mo�ons for judgment on the pleadings on December
12, 2022 (ECF 23). On December 16, 2022, the administra�ve record was filed (ECF 26), and the
par�es consented to magistrate judge jurisdic�on (ECF 28).

II.

APPLICABLE LAW
A. Standard of Review
A mo�on for judgment on the pleadings should be granted if the pleadings make clear that
the moving party is en�tled to judgment as a mater of law. Addi�onally, the Court’s review of
the Commissioner’s decision is limited to an inquiry into whether there is substan�al evidence
to support the Commissioner’s findings and whether the correct legal standards were applied.
Substan�al evidence is more than a mere scin�lla. It only requires the existence of “relevant
evidence as a reasonable mind might accept as adequate to support a conclusion,” even if there
exists contrary evidence. Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quo�ng
Richardson v. Perales, 402 U.S. 389, 401 (1971)); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990) (same). This is a “very deferen�al standard of review.” Brault v. Comm’r of Soc. Sec., 683
F.3d 443, 448 (2d Cir. 2012). The Court may not determine de novo whether Plain�ff is disabled
but must rely on the underlying record.
“When there are gaps in the administra�ve record or the ALJ has applied an improper legal
standard,” or when the ALJ's ra�onale is unclear, remand “for further development of the

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evidence” or for an explana�on of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34,
39 (2d Cir. 1996).
B. Weighing Medical Opinions
For claims such as this one, filed on or a�er March 17, 2017, ALJs apply the new regula�ons
in 20 C.F.R. §§ 404.1520c and 416.920c in lieu of applying the trea�ng physician rule. See
Acosta Cuevas, No. 20-CV-502 (AJN) (KHP), 2021 WL 363682, at *9 (S.D.N.Y. Jan. 29, 2011)
(collec�ng cases), report and recommendation adopted, 2022 WL 717612 (S.D.N.Y. Mar. 10,
2022). Under the new regula�ons ALJs “will not defer or give any specific eviden�ary weight,
including controlling weight, to any medical opinion(s).” 20 C.F.R. § 416.920c(a). Instead, ALJs
“will ar�culate in [their] determina�on or decision how persuasive [they] find all of the medical
opinions.” 20 C.F.R. § 416.920c(b) (emphasis added). ALJs must consider all medical opinions
and determine their respec�ve persuasiveness considering: supportability; consistency;
rela�onship of the medical source to the claimant; specializa�on; and “other factors.” 20 C.F.R.
§ 404.1520c(c)(1)–(5).
The supportability and consistency factors are the “most important.”
20 C.F.R. § 416.920c(a). Accordingly, the regula�ons mandate that ALJs “will explain how [they]
considered the supportability and consistency factors for a medical source’s medical opinions.”
20 C.F.R. § 416.920c(b)(2) (emphasis added); see also Rivera v. Comm’r of Soc. Sec., No. 19-CV4630 (LJL)(BCM), 2020 WL 8167136, at *22 (S.D.N.Y. Dec. 30, 2020), report and
recommendation adopted, 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021) (remanding so that ALJ may
“reevaluate the persuasiveness assigned to the opinion evidence of record and explicitly discuss
both the supportability and the consistency of the consul�ng examiners’ opinions”); Vellone v.
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Saul, No. 20-CV-261 (RA)(KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021), report and
recommendation adopted, 2021 WL 2801138 (S.D.N.Y. July 6, 2021) (“[I]n cases where the new
regula�ons apply, an ALJ must explain his/her approach with respect to the first two factors
when considering a medical opinion.”) (emphasis in original). “Supportability” is “the objec�ve
medical evidence and suppor�ng explana�ons presented by a medical source.”
20 C.F.R. § 404.1520c(c)(1). “Consistency” refers to how the medical source’s opinions compare
with “evidence from other medical sources and nonmedical sources in the claim.”
20 C.F.R. § 404.1520c(c)(2). Although ALJs are only required to ar�culate their considera�on of
those two factors, ALJs must consider all five factors when determining a medical opinion’s
persuasiveness. 20 C.F.R. § 416.920c(c).
C. Five-Step Evalua�on Process
To be awarded disability benefits, the SSA requires that one have the “inability to engage in
any substan�al gainful ac�vity 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 con�nuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The ALJ
makes this determina�on through a five-step evalua�on process, for which the burden rests on
the Plain�ff for the first four steps. Only a�er all four steps are sa�sfied does the burden then
shi� to the Commissioner for the final step:
First, the ALJ must determine that Plain�ff is not currently engaged in substan�al gainful
ac�vity.
Second, the ALJ must find that Plain�ff’s impairment is so severe that it limits their ability to
perform basic work ac�vi�es.
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Third, the ALJ must evaluate whether Plain�ff’s impairment falls under one of the
impairment lis�ngs in 20 C.F.R. Pt. 404, Subpt. P, Appendix 1 such that they may be presumed
to be disabled. Absent that, the ALJ must then determine the Plain�ff’s Residual Func�onal
Capacity (“RFC”), or their ability to perform physical and mental work ac�vi�es on a sustained
basis.
Fourth, the ALJ then evaluates if Plain�ff’s RFC allows him to meet the physical and mental
demands of his prior employment.
If Plain�ff has sa�sfied all four of these steps, the burden then shi�s to the Commissioner to
prove that based on Plain�ff’s RFC, age, educa�on, and past work experience, that Plain�ff is
capable of performing some other work that exists in the na�onal economy. 20 C.F.R
§ 416.920(a)(4)(i)–(v).

III.

ANALYSIS OF THE ALJ’S DECISION
Plain�ff raises two main arguments in support of their request for reversal of the ALJ’s
decision: 1) the ALJ did not properly evaluate the medical opinions by failing to ar�culate why
she did not find the trea�ng physicians’ opinions unpersuasive; and 2) the ALJ did not properly
evaluate Plain�ff’s tes�mony.
A. Weight of Medical Evidence
Plain�ff asserts that the ALJ failed to ar�culate how persuasive she found the opinions from
the trea�ng physicians and to explain why their opinions are “not supported or noted
throughout the treatment records.” (ECF 23 at 21). I agree.

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The ALJ relies on a consulta�ve exam by Dr. Aguilar from July 2020, and the August 2020
state medical agency expert report from Dr. Krist, and the limita�ons described therein, to
determine that Plain�ff’s physical limita�ons le� her with the RFC to perform sedentary work
with addi�onal li�ing limita�ons and that she “stand and/or walk two hours and sit six hours in
an eight-hour workday with normal breaks.” (R. at 19, 21). Dr. Aguilar opined that Plain�ff had
“moderate to marked limita�ons” for heavy li�ing, carrying, prolonged standing, prolonged
walking, climbing stairs, and crouching” and moderate limita�ons for “bending [and] prolonged
si�ng,” and respiratory irritants due to Plain�ff’s asthma. (R. at 21). Dr. Krist’s opinion relied
only on review of the medical records, and was affirmed in October 2020 by another state
agency medical expert who reviewed the same records and came to the same conclusion. (R. at
22). The ALJ made only cursory statements on consistency 3 and no statements on
supportability in finding these opinions persuasive.
The ALJ found three opinions from trea�ng providers from 2021 (Drs. Drakow, Herrera and
Ghaw) to be “not persuasive,” even though all three providers opined that Plain�ff had
significant limita�ons for si�ng, standing, absenteeism and being off-task during the day due to
moderately severe pain. Dr. Drakos, who opined that Plain�ff’s “moderately severe” pain would
cause Plain�ff to be “occasionally” off task and absent, was not persuasive because his findings
were “not consistent with the medical record” because the record “does not document any
support for the off task assessment and the monthly absenteeism is specula�ve.” (R. at 21-22).
Dr. Herrera’s opinion, that plain�ff’s “moderately severe” pain would cause her absenteeism

For example, the ALJ stated that these opinions were “consistent with the totality of the medical record” of
“generally conserva�ve treatment post right ankle surgery” and “generally mild clinical findings.” (R. at 21-22).

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and to be “frequently off-task,” was not persuasive because “the limita�ons assessed are not
supported or noted throughout the treatment records.” (R. at 22) (emphasis added;
persuasiveness assessment quoted in its en�rety). Dr. Ghaw also opined that Plain�ff’s pain was
“moderately severe,” and that the pain would cause Plain�ff to be off task and absent. Id. The
ALJ found Dr. Ghaw’s opinions “not persuasive, as they are also not fully 4 supported by the
record.” Id. (emphasis added). The ALJ then contrasted Dr. Ghaw’s opinion about Plain�ff’s pain
with Plain�ff’s tes�mony and treatment notes that indicated that Plain�ff was “able to li� up to
twenty pounds and walk up to four or five blocks without the use of a cane,” and that Plain�ff
was “able to squat,” and to “transi�on from a sit to stand posi�on without difficulty.” Id.
The ALJ failed to explain how opinions rendered in 2020 are consistent with the “totality of
the medical record” where three trea�ng physicians later independently came to conclusions of
moderately severe pain that would limit Plain�ff’s ability to sit, stand, and walk, and to
consistently go to work and remain on task. The ALJ’s decision does not address supportability
at all. See ECF 23 at 25 (collec�ng cases to challenge supportability of Dr. Aguiar’s
determina�on that Plain�ff could sit for six hours and stand for two hours each workday). More
troubling, because Drs. Krist and Vinluan based their opinions only on a review of the medical
records in 2020, they could not have reviewed the findings of three trea�ng physicians from
2021, and there is no analysis whatsoever on whether a review of those records would s�ll
have supported their opinions.

The ALJ’s use of the terms “throughout” and “fully” when discarding Dr. Herrera’s and Dr. Ghaw’s opinions is
especially troubling because it suggests that the ALJ may have held Plain�ff to a higher standard.

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The ALJ also failed to explain why three trea�ng physicians’ opinions – which were
consistent with each other – were found not to be not consistent with the medical records or
even the physicians’ own notes. Notably, the ALJ references facts or tes�mony such as the
ability to walk four or five blocks without a cane to mean that Plain�ff would not have been in
pain with walking, standing or si�ng, or that whatever pain she experienced would have
contributed to her being off task or absent at �mes. Here, the ALJ impermissibly subs�tuted
their judgment over that of the physicians, 5 and the Commissioner cannot make post hoc
arguments to fill in the gaps. See ECF 23 at 46-48.
B. Plain�ff’s Tes�mony
Plain�ff further asserts that the ALJ did not properly evaluate her tes�mony. I agree.
Plain�ff tes�fied at length about her limita�ons, no�ng, inter alia, that she could sit for up to 40
minutes before needing to get up to walk around, and that she could walk four to five blocks
without needing a cane, and that physical therapy and injec�ons were ineffec�ve. (ECF 23 at
17-18). The ALJ accurately summarized Plain�ff’s tes�mony, see R. at 19, but found (without
further explana�on) that Plain�ff’s statements were “not en�rely consistent with the . . .
evidence.” (R. at 19). While it is true that the ALJ need not enumerate her reasons for every
single factor under the regula�ons, in this case the ALJ used Plain�ff’s tes�mony that she could
walk four to five blocks to infer that Plain�ff and her trea�ng physicians’ reports of the effects

Although not necessary to this decision, I note that the ALJ also found that “conserva�ve” nonsurgical treatment
– after two surgeries – did not support findings of moderately severe pain. Unless the ALJ was in the room when
Plain�ff was discussing treatment op�ons with her physicians, it seems that the ALJ was again subs�tu�ng their
judgment for that of the physicians. If the prior surgeries did not fully resolve Plain�ff’s pain, a decision to follow
more conserva�ve treatment is supportable, especially where Plain�ff was pregnant, nursing, and caring for a
newborn during this �me. (ECF 23 at 13-15)

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of her pain were not persuasive, while at the same �me ignoring – or at least failing to address
– why or how her report of being able to sit only for up to 40 minutes was en�tled to no weight
in the ALJ’s determina�on that Plain�ff could sit for up to six hours a day and that she would
not be absent or off task. 6

IV.

CONCLUSION
For the foregoing reasons, Plain�ff’s Mo�on for Judgment on the Pleadings is GRANTED,
and Defendant’s Mo�on for Judgment on the Pleadings is DENIED. This case is REMANDED for
further proceedings consistent with this Opinion and Order. The Clerk is respec�ully directed to
enter final judgment consistent with this decision and then close the file.

SO ORDERED.

/s/ Ona T. Wang
Ona T. Wang
United States Magistrate Judge

Dated: March 26, 2024
New York, New York

Similarly mys�fying, but not necessary to my decision here, is the ALJ’s cursory men�on of Plain�ff’s morbid
obesity. In the ALJ’s opinion, obesity is listed as the first of Plain�ff’s severe impairments, and men�ons a BMI “as
high as 44.6.” (R. at 18, 21). Class III, or “morbid” obesity is defined as having a BMI of 40 or greater. Class III
Obesity (Formerly Known as Morbid Obesity), CLEVELAND CLINIC,
htps://my.clevelandclinic.org/health/diseases/21989-class-iii-obesity-formerly-known-as-morbid-obesity (last
visited Mar. 26, 2024). Nonetheless, the ALJ gives Plain�ff’s morbid obesity only a glancing men�on – that since
Plain�ff only followed a “very conserva�ve treatment” with dietary restric�ons and “indica�on that claimant
wanted to lose weight,” the record did not indicate that Plain�ff’s obesity “had any adverse impact upon coexis�ng impairments.” (R. at 21).
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