UNITED STATES ie ecu” Davos : . iA STP □□□□ SOUTHERN DISTRICT OF NEW_YORK sey as □

ZAIDA I. ROSADO, | ee □ Plaintiff, 19 Civ. 8073 (PED)

- against - DECISION AND ORDER

ANDREW SAUL, Commissioner of Social Security Administration Respondent. PAUL E. DAVISON, U.S.M.J.: I INTRODUCTION Plaintiff Zaida I. Rosada, pro se, brings this action pursuant to 42 U.S.C, § 405(g)

challenging the decision of the Commissioner of Social Security (“Commissioner” or agency”)

denying Plaintiff's application for Disability Insurance Benefits (“DIB”) and Supplemental

Security Income (“SSI”). [Dkt. 2.] The matter is before me for all purposes pursuant to a

Notice, Consent and Reference of a Civil Action to a Magistrate Judge entered on December 10,

2019, [Dkt. 19.} The Commissioner filed a motion for judgment on the pleadings pursuant to

Fed. R. Civ. P. 12(c) on the grounds that the Administrative Law Judge’s (“AL”) determination

that Plaintiff was not disabled and, therefore, not entitled to DIB or eligible for SSI, was

supported by substantial evidence and based on a proper application of the relevant legal

standards, [Dkt. 20, 21.] Plaintiff filed a letter opposing the Commissioner’ s motion. (Dit. 25,

26-1.]' For the reasons that follow, the Commissioner’s motion is DENIED, and the matter is

remanded to the agency for further administrative proceedings.

Plaintiff filed a response in Spanish [Dkt. 25], of which the agency filed a certified translation. [Dkt. 26-1.]

ll. BACKGROUND Plaintiff is a 56-year-old woman who alleges that she has been disabled from work. since

August 11, 2009. [R. 264.) Plaintiff worked as a hairdresser and a stocker at Wal-Mart. [R.

279.) Beginning in 2001 she worked as a nutritional program educator and a farm workers

advocate. [R. 62-63, 279.| She was involved in a motor vehicle accident in 2004 injuring her

back and neck. [R. 322.) An injury on August 11, 2009 exacerbated her condition. [R. 458-59, □

Plaintiff alleges that she can no longer work due to back and neck injuries, which resulted

in herniated discs and pinched nerves. [R. 271, 275.] She also reported asthma, depression, and

anxiety. [R. 286, 317] Plaintiff filed prior applications for DIB and SSI, which were denied ina

separate ALJ hearing on June 24, 2011. [R. 78-85.] Therefore, the relevant period for the instant

application commenced on June 25, 2011. See, ¢.g., Pataro v. Berryhill, No. \7 Civ. 6165

(IGK)(BCM),

, at *11 (S.D.N.Y. Mar. 1, 2019), report and recommendation

adopted,

(S.D.N.Y. Mar. 18, 2019) “An ALJ may find that res judicata

applies where the Social Security Administration has ‘made a previous determination or

decision’ about a claimant’s rights ‘on the same facts and on the same issues or issues, and this

previous determination or decision has become final by either administrative or judicial

action.’”) (internal citations omitted). A. Procedural History Plaintiff protectively filed applications for DIB and SSI on November 19, 2014, alleging

a disability beginning August 11,2009. [R. 236-49. Plaintiff's applications were denied, and

2 Notations preceded by “R.” refer to the certified administrative record of proceedings relating to this case submitted by the Commissioner in lieu of an answer. [Dkt. 16.]

3 Contes afunrenarted cases will be mailed to Plaintiff.

she requested a hearing before an ALJ. [R. 112-21. Plaintiff appeared at a hearing before an

ALJ on January 9, 2018 represented by counsel. [R. 37-71.] The ALI denied Plaintiff's

applications for the period of June 25, 2011 through February 15, 2018, the date of the decision.

[R. 7-24, Plaintiff filed a request with the Appeals Council to review the ALJ’s decision, which

was denied on July 12, 2019. [R. 1-6.| Plaintiff timely commenced the instant action on August

28, 2019. [Dkt. 2.] B. Factual Background and Medical Evidence

1, Medical Evidence Prior to the Application Period

Dr. David Tucker conducted an independent medical examination on April 18, 2008 in

connection with Plaintiffs application for Workers’ Compensation. [R. 642-48.] He observed

limitations in Plaintiff's neck range of motion, as well as tightness, tenderness, spasms, and pain

in her shoulders and back. [K. 646.| He did not opine as to her ability to work and instead

recommended that she continue treatment and obtain a neurological consultation. [R. 647.|

Plaintiff attended regular visits with her primary care physician, Dr. Alexander Gapay.

She saw him on November 6, 2008, and Dr. Gapay referred to Plaintiff's injuries as dating back

to her motor vehicle accident 2004, [R. 489.] Dr. Gapay assessed low back pain, herniated discs

at L4-L5 and L5-S1, and a cervical spine sprain at C5-C6 with mild spinal stenosis, post-

traumatic headaches, and obesity. [R. 489-90.] She next saw Dr. Gapay on January 10, 2009 for

cold related symptoms. [R. 487-88.] On May 27, 2009, Plaintiff reported that she had tried to

return, to work recently but complained of worsening pain in het neck, back, and shoulders. FR.

485.| A physical examination revealed tenderness in Plaintiff's cervical spine and right shoulder

and pain with movement. Dr. Gapay assessed disc herniations at L4-L5, L5-S1, C5-Cé6 and

impingement of the right shoulder. [R. 486.

Plaintiff injured herself at work on ot around August 8, 2009 while trying to set up a tent

when it broke. [R. 450.] She saw Dr. Gapay on August 13, 4009 and reported increasing pain in

her back, neck, shoulders, and legs, numbness and tingling in her arms and legs, and difficulty

walking. [R.483.] A physical examination revealed tenderness in her cervical spine and

diminished neck range of motion by 50 percent. [R. 484,| Plaintiff could flex her hip jess than

25 percent of normal motion. She had marked pain and stiffness in her back with spasms

radiating to her legs. Dr. Gapay referred Plaintiff to pain management. [R. 484.) Dr. Gapay’s

physical examination findings remained largely unchanged on August 20, 2009. [R. 481-82. □

Dr. Gapay assessed worsening pain of the neck, upper back, and lower back with herniated discs

at C5-C6, L4-L5, and L5-S1 and radiculopathy of the upper left and both of the lower

extremities. Plaintiff also reported poor sleep and fatigue due to pain. Dr. Gapay opined that

Plaintiff had a moderate to marked partial disability. [R. 482.]

Dr. Gapay referred Plaintiff to New York Spine Surgery & Rehabilitation where she

attended an initial consultation with Dr. Kenneth Hansraj on August 24, 2009. [R. 316-24.| She

reported increasing neck pain radiating fo her left arm and back pain radiating to her legs, which

was worse on the left side. [R. 3 16.}] She also reported that she could walk between two to ten

blocks with pain. [R. 317.] Dr. Hansraj noted prior diagnoses of anxiety and asthma. [R. □□□□□

He reviewed a February 4, 2008 cervical MRI showing a disc herniation as C5-C6 indenting the

cervical cord with mild spinal stenosis. [R. 318.) A lumbar MRI taken the same day showed

disc herniations at L4-L5 and L5-S1 causing impressions on the L4 and $1 nerves and impinging

the L5 spinal nerve. [R. 391.] Dr. Hansraj recommended that Plaintiff use a back brace and

sequential stimulation, that she avoid bending, lifting, twisting, and reaching, and that she try to

walk as much as tolerable. [R. 324. He also referred Plaintiff to obtain updated MRIs. [R.

324.| Dr, Hansyaj saw Plaintiff at a follow-up visit on October 7, 2009. [R. 326-32.] A physical

examination revealed diminished reflexes throughout Plaintiff's arms and legs and diminished

motor power in her neck and lower back with pain. [R. 326-27] Dr. Hansraj diagnosed cervical

and lumbar spondylosis. [R. 330.] Plaintiff returned to Dr. Gapay on November 11, 2009. [R. 479-80.] A physical

examination showed pain and tenderness along the cervical, mid thoracic, and lumbosacral spine.

Plaintiff also had positive straight leg raising (“SLR”) tests on both sides.’ Her hip flexion was

reduced by 50 percent. Dr. Gapay assessed a herniated dise at (°5-C6 and dise disease at L4-L5

and L5-S1. He opined that Plaintiff was 100 percent disabled. [R. 480.]

Plaintiff followed with Dr. Hansraj on December 14, 2009. [R. 333-42.) X-rays taken

November 25, 2009 of the spine and neck showed a small left paracentral herniated nucleus

pulposus (“HINP”’) at C5-C6, [R. 338-41.) Dr. Hansraj opined that Plaintiff was “partially,

markedly disabled” and referred her for EMG studies. [R. 341.] On February 24, 2010, Dr.

Hansraj reviewed Plaintiff's January 8, 2010 EMG nerve conduction study, which revealed left

radiculopathy at C5-C6 and L5-S1, but no evidence of cervical neuropathy. [R. 351-54.] On

March 14, 2010, Dr. Hansraj assessed lumbar degenerative disc disease. [R. 356-73.]

Dr, Gapay next saw Plaintiff on March 22, 2010. [R. 468-70.] He noted reduced motion

Plaintiff's neck and shoulders, and Plaintiff reported pain, numbness, and tingling in her left

4 “The straight leg raise test ‘checks the mechanical movement of the neurological tissues

as well as their sensitivity to mechanical stress or compression.’ [G]enerally, ina straight- leg raising test, the patient is in the supine position with the knee and hip extended and there is passive dorsiflexion of the foot, where back pain indicates nerve root compression or impingement.” McIntosh v. Berryhill, No. 17 Civ, 5403 (ERDF),

, at *3 0.9 (S.D.N.Y. July 16, 2018), report and recommendation adopted, 201

(S.D.N.Y. Sept, 12, 2018) (citing Stedman's Medical Dictionary (updated November 2014) available on ee? aces at STETAMANS 908450).

hand, leg, and foot. Plaintiff had difficulty walking due to pain and needed assistance getting on

and off of the examination table. She also had reduced range of motion in her hips. [R. 470.]

These results were consistent with Plaintiff's next physical examinations on May 20, 2010 and

July 15, 2010, and Dr. Gapay opined that Plaintiff was {00 percent disabled from her work as a

nutrition educator and 75 percent disabled overall. [R. 461-67.

Plaintiff attended a second independent medical examination in connection with her

Workers’ Compensation application, which was performed by Dr. Jerome Moga on August 9,

2010, [R. 638-40.] Dr. Moga observed diffuse low posterior cervical spine and left trapezius

tenderness. Plaintiff could rotate her head 30 degrees to right and left. She was numb to

pinprick testing in her upper and lower extremities. Plaintiff's grip strength was three pounds in

her right hand and zero pounds in her left. Deep tendon reflexes were hypoactive in upper and

lower extremities but equal bilaterally. She had positive SLR tests at 70 degrees on both sides,

more on the left. Plaintiff had discomfort while forward bending at 10 degrees. Dr. Moga

assessed cervical and lumbar spine herniated disc syndrome. He opined that Plaintiff had a

moderate partial degree of disability. (R.640.]

On December 10, 2010, Dr. Gapay observed that Plaintiff had difficulty walking, and he

recommended physical therapy. fR. 458-60.] Dr. Gapay saw Plaintiff again on January 14,

2011. [R. 450-53, repeated R, §72-34,] He observed diminished range of hip motion,

tenderness along Plaintiff's neck and back, and that Plaintiff could not heel-to-toe walk. He

opined that Plaintiff was markedly, partially disabled. [R. 452.] On January 14, 2011, Plaintiff

reported difficulty sleeping due to pain and discussed depressive symptoms. (R, 568-71.]

Plaintiff began seeing a neurologist, Dr. Surinder Jindal, on March 17, 2011. FR. 376.]

Based on a neurological examination, Dr. Jindal assessed cervical muscle spasm with cervical

radiculopathy and lumbosacral radiculopathy. He recommended a home exercise program and

pain medication. [R. 376.| 2, Medical Evidence During the Application Period

Dr. Moga conducted a third Workers’ Compensation independent medical examination

on July 1, 2011. [R. 650-62.] He observed low posterior cervical spine tenderness and

tenderness over the left trapezius muscle. Plaintiff could rotate her head 45 degrees to the right

and 30 degrees to the left. She had diffuse numbness to pinprick testing in her upper and lower

extremities. Her right-hand grip strength was 25 pounds and 11 pounds in her left hand. She had

weak left foot dorsiflexion power. Her SLR tests were positive at 60 degrees on the left and 70

degrees on the right. She could bend forward no more than 20 degrees at the waist. Dr. Moga

opined that Plaintiff was moderately partially disabled and that she could perform light duty

work with no lifting of over 25 pounds, [R. 652.| On December 13, 2011, Plaintiff saw Dr. Vicki Rogove after twisting her right ankle. [R.

377-80.| Plaintiff walked with a limp. [R. 377.| A physical examination showed tenderness of

the right ankle with pain and swelling in the knee. Dr. Rogove assessed a right ankle, foot, and

knee sprain. [R. 379-80.) A pelvic radiological examination taken the same day showed no

evidence of fracture or dislocation at the hips but did show mild degenerative osteoarthritic

changes in both hip joints, [R. 381] | Plaintiff saw Dr. Jindal again on June 18, 2012. [R. 383.) Plaintiff reported neck pain

and stiffness that intermittently worsened and was exacerbated by prolonged sitting and standing.

A neurological examination revealed decreased sensation in her lower back, tenderness and

spasms in her upper back and neck, and decreased ability to lean to the side. Dr. Jindal assessed

cervical myofascial pain and lumbosacral radiculopathy. He recommended pain management

and increased Plaintiff's dosage of baclofen to twice a day. He also prescribed Lodine to be

taken twice daily. [R. 383] Plaintiff next saw Dr. Jindal on July 30, 2012. [R. 385.] Plaintiff again reported back

and neck pain with burning. Trigger point injections relieved some of the pain, pressure, and

burning, but Plaintiff's symptoms sntermittently worsened over the last few weeks. A

neurological examination revealed decreased sensation at LS-S1, tenderness and spasm in the

paraspinal area, and positive SLR tests at 70 degrees on the right and 40 degrees on the left. Dr.

Jindal assessed lumbosacral radiculopathy with recurrent muscle spasm. He recommended that

Plaintiff continue pain management and back exercises, and that she should use muscle relaxants

and anti-inflammatory medication as needed. [R. 385.] Dr. Jindal made similar findings at

Plaintiff’s next visit on September 10, 2012. [R. 387.

On November 26, 2012, Plaintiff reported to Dr. Jindal that her symptoms were

worsening, [R. 389.| She continued experiencing neck pain and stiffness, but also reported low

back pain with prolonged sitting and standing, as well as more spasms due to cold weather. Dr.

Jindal observed that Plaintiff had decreased sensation on the right at C5-C6 and L5-S1. Plaintiff

also developed an abnormal gait and favored her right side while walking. Dr. J indal observed

spastic trigger points on the neck and upper back, He assessed cervical myofascial pain,

cervicogenic headaches, and low back pain with lumbosacral radiculopathy. He opined that pain

management was medically necessary and administered four trigger point injections, which

Plaintiff stated improved her symptoms. [R. 389.]

On February 19, 2013, Plaintiff's symptoms continued to worsen. [R. 391.] She

continued to present pain and stiffness in her back and neck, Dr. Jindal’s neurological

examination showed decreased sensation in her neck, and Plaintiff's gait was abnormal favoring

her left side, She bad tenderness and spasms in her neck and back at the L4-L5 region and

paraspinal cervical and trapezius muscles. She had positive SLR tests at 60 degrees on the left

and 70 degrees on the right. Dr. Jindal assessed cervical radiculopathy with headaches, and

lumbosacral radiculopathy with radicular myofascial pain and recurrent muscle spasm. [R. 391.]

Dr. Jindal continued treating Plaintiff every two months through 2013 and consistently observed

pain, stiffness, and tenderness in Plaintiff's back, neck and shoulders, an abnormal gait, and

positive bilaterally SLR tests. He administered trigger point injections during each visit which

provided temporary relief, [R. 393-99.] Plaintiff saw Dr. Gapay on October 24, 2013 after having an asthmatic reaction to mold

in her apartment. {R. 446-49, repeated at K. 564-67.] He assessed asthma and noted prior

diagnoses of back pain and depression. FR. 448-49. Plaintiff was not treated again until she saw

Dr. Jindal on June 11, 2014. [R. AQ1.] Dr. Jindal observed continued tenderness, diminished

deep tendon reflexes, and decreased sensation along Plaintiff's back and neck with positive SLR

tests on both sides. He administered three trigger point injections. [R. 401] .]| On September 22,

2014, Plaintiff reported to Dr. Jindal that she could not sit or stand for a prolonged period of

time. [R. 403.] On October 21, 2014, Plaintiff reported worsening pain with numbness and

tingling on the left side. [R. 405.] Dr. J indal observed an abnormal gait favoring her right side.

He also observed greater sensory impairments and more weakness, and he referred Plaintiff for

an MRI. [R. 405.) An EMG study taken that same day showed chronic left L4-L5, L5-S1 and

right $1 radiculopathy. [R. 406-08.] Over the next few months, Plaintiff continued treating with

Dr. Jindal who observed similar physical findings and continued administering trigger point

injections. [R. 410-15, 420.]

On January 29, 2015, Plaintiff saw Dr. Gapay after she fainted on January 8. [R. 558-

63.] Plaintiff stated she fainted when trying to get a cup of coffee in the morning, after which

she was taken to the hospital. [R. 413-18, 436.] Dr. Gapay assessed dizziness and sweats with

mild hypertension and chronic asthma. [R. 561.] Plaintiff next saw Dr. Gapay on January 30,

9015 for an annual wellness visit. [R. 436-440.] An echocardiogram taken that day showed

trivial to mild pulmonary insufficiency, trivial tricuspid regurgitation, trivial mitral regurgitation,

and a normal left ventricular size and contractility pattern. [R. 424-25.] Plaintiff noted that she

had lost medical coverage, and soon she would no longer able to freat with Dr. Jindal. She had

also stopped working and lost her house. [R. 436.] Upon physical examination, Dr. Gapay

noted poor balance and left leg numbness. Plaintiff reported difficulty sleeping, anxiety, and

depression. R. 437. She had positive SLR tests on both sides, worse on left. [R. 439.]

Plaintiff's final treatment with Dr. Jindal took place on February 25, 2015. [R. 492-93,

495-96.) An EMG of the upper extremities showed left C5-C6 and C6-C7 radiculopathy. A

nerve conduction study was within normal limits. [R. 492,] Noting tenderness, pain, and spasms

in Plaintiff's back and neck, as well as weakness and decreased reflexes and sensation in her

upper and lower extremities, Dr. Jindal assessed cervical strain with radiculopathy, lumbosacral

strain with lumbosacral radiculopathy, and degenerative disc disease. [R. 492-495.]

Plaintiff attended a physical consultative examination on April 3, 2015 with Dr, Richard

Weiskopf, an agency medical consultant. [R. 497-501.) Plaintiff reported back and neck pain,

asthma worse in the spring, headaches, and depression. [| R. 497.] She stated she could cook and

clean, At the time she lived with her son who did the laundry. She could shop and was able to

shower and dress herself, but she needed help putting on her socks and shoes. During the day

Plaintiff read and watched television. [R. 498.] Upon physical examination, Plaintiff was in no

acute distress but was tearful. Dr. Weiskopf observed that Plaintiff was mildly obese. Her gait

was normal, but she could not walk on her heels or toes and could not squat. She had a normal

stance and did not use assistive devices. She needed no help changing or getting on of off of the

examination table. She was able to rise from chair without difficulty. [R. 498.]

Examination of Plaintiff’s chest, head, neck skin, and face were normal. However,

moving her neck caused tightness. Plaintiff could move her neck with flexion at 30 degrees,

extension at 10 degrees, and lateral flexion at 10 degrees on the right and 20 degrees on the □□□□□

Rotary movement was 15 degrees on the right and 60 degrees on left. She had no scoliosis,

kyphosis, or abnormality in her thoracic spine. Plaintiff's lumbar spine flexion was 20 degrees,

and her lateral flexion was LO degrees on left and 5 degrees on right. She had full extension and

rotary movement bilaterally. She had positive SLR tests at 30 degrees bilaterally. However,

Lasegue signs were positive on left and negative on right. Plaintiff had forward elevation of her

shoulders at 105 on both sides. She had full range of motion of her elbows, forearms, and wrists,

and she had flexion of both hips to 90 degrees. She had full range of her knees and ankles with

no subluxations, contractures, ankylosis, Or thickening. [R. 499.] Plaintiff's joints were stable

and non-tender. She had no redness, heat, swelling, or effusion. Deep tendon reflexes were

equal and physiologic in all extremities. She had no sensory deficit, and she had full strength in

her hands and feet. She had no cyanosis, clubbing, edema, of atrophy in her extremities. [R.

500,] An x-ray taken that day showed lumbosacral Jevoscoliosis and degenerative changes.

Pulmonary laboratory tests showed some restriction and obstruction. [R. 503-05.]

Dr, Weiskopf assessed chronic low back pain with left sciatic type pain distribution and

herniated discs, chronic neck pain with cervical radiculopathy, asthma, and depression. [R. 500.|

He opined that Plaintiff had no limitations in her ability to sit, stand, or walk, She had moderate

limitations in bending, lifting, climbing, and carrying. He opined that Plaintiff had good use of

her hands for fine motor activities. [R. 500.] Plaintiff also attended a mental consultative examination on April 15, 201 5 with Dr.

Dennis Noia, an agency psychiatric consultant. [R. 507-10.] Plaintiff stated that she drove

herself to the examination. She had obtained a GED. At the time she was not working. She

reported no psychiatric hospitalizations or outpatient treatment. fR. 507.] Plaintiff reported a

history of herniated discs, pinched nerves, asthma, difficulty falling asleep, decreased appetite,

and symptoms of depression. [R. 508.| Upon examination, Dr. Noia observed that Plaintiff was appropriately dressed and

appeared her age. She had an adequate manner of relating, social skills, and overall presentation.

She had normal motor behavior and eye contact. [R. $08.] Plaintiff's speech was intelligible,

fluent, and clear, and she had adequate expressive and receptive language. Her thoughts were

coherent, and Plaintiff was goal directed with no evidence of delusions, hallucinations, or

disordered thinking. Plaintiff had a constricted affect, somewhat reduced in intensity compared

to her thoughts and speech. She had a depressed mood and appeared sad and tearful. Her senses

were clear, and she had normal orientation. She was able to maintain concentration, and she

could count, do simple calculations and perform serial threes. Plaintiff's recent and remote

memory were intact. She demonstrated average intellectual functioning with an appropriate

general fund of knowledge. She had good insight and judgment. She was able to dress, bathe,

and groom herself, but needed help putting on socks and shoes. She stated she did not cook or

prepare food and could not do general cleaning or laundry, and she would go shopping with her

son, She could manage money and drive, but she did not use public transportation. During the

day Plaintiff would read and watch television. [R. 509,

Dr. Noia opined that Plaintiff had no limitations following simple instructions and

directions, and she could perform simple and complex tasks. [R. 5(09-10.] Plaintiff had no

limitations in maintaining attention and concentration, attending to a routine, or maintaining a

schedule, [R. 510.] She had no limitations in her ability to learn new tasks or make appropriate

decisions. She could relate to others and interact moderately well. She had moderate jimitations

in her ability to deal with stress, which was caused by psychiatric problems. He opined that

Plaintiff's psychiatric problems “may at times significantly interfere with the claimant’s ability

to function on a daily basis.” _He recommended that Plaintiff pursue psychiatric care. (R. 510.]

Plaintiff began physical therapy on March 25, 2016. [R.5 12-15.} George Giovannone,

the physical therapist, observed that Plaintiff had decreased range of motion and strength,

increased pain in her right shoulder, and her left ankle had decreased strength and increased pain.

Plaintiff could walk up and down stairs and lift objects. However, she had decreased ambulation

distance, and difficulty with stair climbing, lifting, overhead activity, and activities of daily

living. [R. 513.| She had decreased range of motion in her left shoulder and decreased strength

in her left ankle and right shoulder. [R. 513-14.) Mr. Giovannone opined that Plaintiff s

impairments decreased her ability to walk, lift objects, perform overhead tasks, and perform

activities of daily living including household tasks. [R. 514.]

Beginning April 4, 2016, Plaintiff met with Laura Ronen for nutritional counseling

regarding Plaintiff's obesity. Plaintiff continued meeting with her approximately every two

months through January 9, 2017. [R. 530-36, 540-41.] Plaintiff saw Kelli Gassert, a physician assistant, on November 91,2016. [R. 537-39.]

An x-ray of the lumbar spine taken that day showed straightening of the lumbar lordotic

curvature, [R.529.] A physical examination showed normal gait, cervical spine and paraspinal

tenderness, and limited range of motion due to pain. She assessed acute left-sided low back pain

without sciatica, as well as cervicalgia. [R. 538.]

On November 28, 2016, Plaintiff saw Dr. Gapay after she strained her back trying to pick

something up from the floor. fR. 552-54,] Dr. Gapay observed chronic pain in Plaintiff's

cervical spine and left shoulder and pain and tenderness ‘7 her lumbosacral spine. She had

positive SLR tests on both sides. [R. 552.] Dr. Gapay assessed chronic pain, low back pain,

sciatica of left side, cervicalgia, and left shoulder pain. [R. 553.1

Plaintiff next met with Dr. Gapay on January 30, 2017. [R. §49-51,] He did not conduct

a musculoskeletal examination that day, and instead assessed Plaintiff with obesity and a severe

single current episode of major depressive disorder, as well as chronic tension-type headaches,

sleep disorder, lumbago with sciatica on the left side, other chronic pain, polyarthralgia,

cervicalgia, and pain in both shoulders. Dr. Gapay noted that physical therapy failed and made

the pain worse. [R. 550.] Plaintiff next saw Dr, Gapay on June 7, 2017 and reported that her

pain continued to worsen. [R. §45-48.| Plaintiff reported worsening pain on July 14, 2017, and

Dr. Gapay’s physical examination continued to show muscle tenderness, decreased range of

motion in her spine, and positive SLR tests on both sides. [R. 542-43.]

Plaintiff saw Dr. Vijay Pampana at Middletown Medical on August 2, 2017. [R. □□□□□□□

A physical examination showed tenderness of the left trapezius muscle, a positive SLR test on

the left side, and pain with hip movement. He assessed lumbar and radiculopathy. [R. 577-78.|

In a letter dated August 16, 2017, Dr. Stanley Goldstein, a psychologist, stated that he

had been meeting with Plaintiff on a weekly basis since January 22, 2016. [R. 592, repeated at

R. 626.} Dr. Goldstein submitted handwritten treatment notes from January 22, 2016 through

November 2, 2017. [R. 595-625, 627-30.] He treated Plaintiff for generalized anxiety disorder

and dysthymic disorder. [R, 592.] He completed a Psychiatric Assessment for Determination of

Employability on March 24, 2016. [R. §80-81.] He noted diagnoses of generalized anxiety

disorder and dysthymic disorder. [R. 580.] Plaintiff had no hospitalizations, emergency room

visits, substance abuse, black outs, violent actions towards others or herself, or loss of a job or

failure to complete education of training program due to psychiatric impairments. She had no

suicide attempts but had suicidal ideation. Dr. Goldstein noted occasional decompensation “to a

degree.” [R. 581. He opined that Plaintiff's psychological impairments would frequently interfere with her

activities of daily living, and that Plaintiff could not participate in work related activities. When

asked when she could return, he stated, “uncertain if ever.” He found no evidence of limitations

in her ability to understand and remember simple instructions, maintain socially appropriate

behavior, and maintain basic standards of personal hygiene and grooming. He opined that

Plaintiff was moderately limited in her ability to understand and remember complex instructions,

maintain attention and concentration, interact appropriately with others, and perform low stress,

simple tasks. She was very limited in her ability to use public transportation. [R. 581.]

3. Agency Medical review

Dr. T. Bruni, an agency medical psychiatric expert, reviewed Plaintiff's application on

April 23, 201 5,5 [R. 101-11.) He did not review Plaintiff's psychiatric records, which post-dated

his assessment, and opined that Plaintiff had no severe menial impairment. [R. 105-06.| He

5 Dr. Bruni was designated with Medical Specialty Code 38, which refers to psychology. See Program Operations Manual System (“POMS”) DI 24501 .004.

declined to opine on Plaintiff's REC. There was no agency medical expert review of Plaintiffs

physical medical treatment history.° 4, Plaintiff’s Testimony Plaintiff testified at the January 9, 2018 hearing before the ALJ. [R. 37-71.] At the time

of the hearing, Plaintiff lived in an apartment in Middletown, New York. [R. 41.] She had lived

alone for the past two months and used to live with her adult son. [R. 41-42.] She was 53 years

old at the time of the hearing. [R. 42.] Plaintiff stated she could drive, but someone drove her to

the hearing that day. [R. 43.] Her apartment was a second-floor walk-up. [R. 43.| Plaintiff had

obtained a GED and went to beauty school. [R. 44-45,| She was not working at the time of the

hearing, and she last worked around September 2009, [R. 45.]

Plaintiff stated she could not work due to back problems caused by a car accident in

2004, which caused pain in her upper and lower back and in her legs. [R. 46.] She could not lift

more than 3 pounds. [ R. 46.| She reported pain in her neck and arms and migraines. [R. 47.|

She had a pinched nerve in her back on the right side and herniated discs. [R. 47-48.] She

attended physical therapy for nine weeks, which increased her pain. [R. 48.] She took pain

medication, which helped but caused fatigue. [R. 48-50.] Plaintiff had been seeing a

psychologist for about a year on @ weekly basis. [R. 50-51.]

Plaintiff testified that she had trouble performing household chores and that a friend may

visit ber two or three times a week to help with cleaning, shopping and laundry. [R. 51-53.]

Plaintiff did not attend church, and she was separated from her husband. [R. 52.] She stated she

6 A, Slattery, an agency “single decision maker” reviewed Plaintiff's medical records. “SDMs are non-physician disability examiners who may make the initial disability determination sn most cases without requiring the signature of a medical consultant... Accordingly, ‘[aln SDM assessment is not a medical opinion for the purposes of appeals.” Rivera v. Comm'r of Soc.

ee an 1d ARG 494-95 (S.D.N.Y. 2019) (internal citations omitted),

could not lift her groceries because they were too heavy. (R. 53,] Plaintiff stated she could do

her own banking and budgeting. (R. 54.) She had not traveled in the past nine years. [R. 54.]

Plaintiff liked to read in her spare time. [R. 54.] She stated she could not exercise, walk, or

perform stretches. [R. 54-55.] Her pain had been getting worse since her injury and as she got

older. [R. 55.] She also stated she had anxiety and depression. [R. 55,] She believed she could

stand for 10 to 15 minutes before needing to sit and could sit for 10 to 15 minutes before needing

to change positions. [R. 56-57.] Her anxiety and depression prevented her from being abie to

sleep most nights. [R. §7-58.| Her medication made her feel tired and also lowered her

motivation. They also caused stomach issues and diarrhea. [R. 58.|

Plaintiff last worked as a nutrition program educator working for the state of New York

from 2001 to 2009. [R. 59-61.| Her job required her to cook, travel, and grocery shop for

families and teach them about nutrition. [R. 59-60.] In 2006 she also worked for an organization

named PathStone where she would travel to farms and work with farm workers, teaching them

about their legal rights. [R. 61-62.] Before that, she worked as a hairdresser and as a stocker in

Wal-Mart. [R. 62-63.) 5. Vocational Expert Testimony Vocational expert Josiah Pearson also testified at the January 9, 2018 hearing. [R. 59,

63-68.| Mr. Pearson classified Plaintiff's work at Wal-Mart as a store laborer, listed under the

Dictionary of Occupational Titles (“DOT”) under DOT 922.687-058, an unskilled job performed

at the medium level of exertion. He identified Plaintiff's work as a hairdresser under DOT

332.371-018, a skilled job performed at the light level of exertion. He identified Plaintiff's work

with farm workers as an outreach worker or case aide under DOT 196.367-010, a semi-skilled

job performed at the light level of exertion. He classified Plaintiff's work for the state as a food

management aide under DOT 195.367-022, a semi-skilled job performed at the light level of

exertion. [R. 63-64.| The ALJ asked Mr. Pearson to consider whether a person with Plaintiffs vocational

profile and work history could perform certain jobs given various hypothetical levels of

functioning, First, the ALJ asked him to consider an individual who could perform medium

work with only occasional stooping who could not be exposed to concentrated respiratory

irritants. Mr. Pearson opined that such an individual could perform work as a case aide, a food

management aide, and a hairdresser. [R. 64.] Next, the ALJ asked Mr. Pearson to consider the same hypothetical, but with the

additional limitation of only occasional interactions with the public, Mr. Pearson opined that this

individual could not perform work as a case aide, food management aide, or hairdresser. He

opined, however, that they could perform the following unskilled jobs: hand packager, DOT

920.587-018; laundry laborer, DOT 361.687-018; and cleaner, DOT 919.687-014. [R. 65.|

The ALJ asked Mr. Pearson to consider a hypothetical individual limited to light work.

and occasional stooping who needed to avoid concentrated respiratory irritants, and without any

mental limitations. Mr. Pearson opined that this individual could work as a food aide, case

management aide, and hairdresser. Those jobs could be performed if the individual needed to

stand and stretch every hour. The jobs could not be performed if the individual was limited to

only occasional ‘nteraction with the public. An individual with that added social limitation could

perform the following unskilled jobs: small products assembler, DOT 706.684-022; mail clerk,

DOT 209.687-026; and routing clerk or router, DOT 222.587-038. [R. 65-67.|

Finally, the ALJ asked Mr. Pearson to consider an individual limited to sedentary work

with no more than occasional stooping who could not be exposed to respiratory irritants, and

who needed the opportunity to stand up and stretch for a few minutes every hour. Mr. Pearson

opined that such an individual would not be able to perform Plaintiffs past work but could

perform the following unskilled jobs: order clerk, DOT 409.567-014;, document preparer, DOT

249,587-018; and final assembler, DOT 713.687-018. [R. 67.) The ALJ asked Mr, Pearson to

add a limitation of being unable to lift or carry five pounds and needing to change from sitting to

standing in 15-minute intervals. Mr. Pearson opined that such an individual would not be able to

work, Additionally, he testified that an individual off-task for more than 25 percent of the day

was not competitively employable in the national economy. [R. 67-68.| Il. LEGAL STANDARD

A. Standard of Review In reviewing a decision of the Commissioner, 4 district court may “enter, Upon the

pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision

of the Commissioner of Social Security, with or without remanding the cause for a rehearing.”

42 US.C. § 405(g). “Tt is not the function of a reviewing court to decide de novo whether a

claimant was disabled.” Melville v. Apfel, 198 B.3d 45, 52 (2d Cir. 1999). Rather, the court’s

review is limited to “determin|ing| whether there is substantial evidence supporting the

Commissioner’s decision and whether the Commissioner applied the correct legal standard.”

Poupore y. Astrue,

(2d Cir, 2009) (per curiam),

The substantial evidence standard is even more deferential than the “clearly erroneous”

standard. Brault v. Social Sec. Admin,

(2d Cir. 2012). The reviewing court

must defer to the Commissioner’ factual findings, and the Commissioner’s findings of fact are

considered conclusive if they are supported by substantial evidence. See A2 U.S.C. § 405(g).

“Sybstantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Lamay v. Comunissioner of

Soc. Sec.,

(2d Cir. 2009) (internal quotations omitted) (quoting Richardson v¥.

Perales,

(1971)). “In determining whether the agency’s findings are

supported by substantial evidence, the reviewing court is required to examine the entire record,

including contradictory evidence and evidence from which conflicting inferences can be drawn.”

Talavera v,. Astrue,

(2d Cir. 2012) (internal quotations omitted). “When there

are gaps in the administrative record or the ALJ has applied an improper legal standard,” or

when the ALJ’s rationale ts unclear in light of the record evidence, remand to the Commissioner

“for further development of the evidence” or for an explanation of the ALI’s reasoning Is

warranted. Praits v. Chater,

(2d Cir. (996).

Pursuant to the fourth sentence of

(g), the Court has the “power to enter,

upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing

the decision of the Commissioner, with or without remanding the cause for arehearing.”

(g) (made applicable to Title XVI by

(c)G3)); Shalala y. Schaefer,

509 U.S, 292, 297 (1993); Melkonyan v. Sullivan, 501 U.S, 89, 98 (1991). A remand for further

proceedings may be ordered pursuant to the fourth sentence of

(g) in cases where

the Commissioner “has failed to provide a full and fair hearing, to make explicit findings, or to

have correctly applied the law and regulations.” Melkonyan v. Sullivan, S01 U.S. 89, 98 (U.S.

1991); see Rosa v. Callahan,

(2d Cir. 1999).

B. The Five Step Sequential Analysis A claimant is disabled under the Social Security Act when he or she lacks the ability “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... ” A2US.C. §

423(d)(1)(A). In addition, a person is eligible for disability benefits under the Social Security

Act only iff his physical of mental impairment or impairments are of such 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. Id, § 423()(2)(A). A claimant’s cligibility for SSA disability benefits is evaluated pursuant to @ five-step

sequential analysis: 1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.

2. Tf not, the Commissioner considers whether the claimant has a “geyere impairment” which limits his or her mental or physical ability to do basic work activities.

3, If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.

4, If the impairment is not “fisted” in the regulations, the Commissioner then asks whether, despite the claimant’s severe impairment, he or she has residual functional capacity to perform his or her past work. 5. 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. Rolon v. Commissioner of Soe. Sec.,

(S.D.N.Y. 2014); see

,1520(a(4G)-O), 416.920(a(4))-(). The claimant bears the burden of proof as to the

first four steps of the process. See Green- Younger V. Barnhart,

(2d Cir. 2003).

If the claimant proves that his or her impairment prevents him or her from performing his past

work, the burden shifts to the Commissioner at the (fth and final step. See

At the fifth step,

the Commissioner must prove that the claimant is capable of obtaining substantial gainful

employment in the national economy. See Bufis v. Barnhart,

(2d Cir. 2005);

40 CER. § 404.1560(c)(2). A claimant’s “residual functional capacity” (“RFC”) is his or her “maximum remaining

ability to do sustained work activities in an ordinary work setting on a continuing basis.”

Melville v. Apfel,

(2d Cir. 1999) (quoting Social Security Ruling (“SSR”) 96-8p,

, *2 July 2, 1996). When assessing a claimant’s REC, an ALJ is obligated to

consider medical opinions on & claimant’s functioning based on an assessment of the record as a

whole. 20 CER. §§ 404.1527(d)(2), 416.9527(d)(2) (“Although we consider opinions from

medical sources on issues such as ... your residual functional capacity...the final responsibility

for deciding these issues is reserved to the Commissioner.”). It is the Commissionet’s role to

weigh medical opinion evidence and to resolve conflicts in that evidence. See Cage v. Comm'r

of Soc. Sec.,

(2d Cir. 2012); Veino v. Barnhart,

(24 Cir.

2002) (“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”).

C. Weighing Medical Evidence’ When considering the medical opinion evidence, the ALJ must give deference to the

opinions of a claimant’s treating physicians. A treating physician’s opinion will be given

On January 18, 2017, the Commissioner published the “Revisions to Rules Regarding the Evaluation of Medical Evidence,” effective March 27, 2017,

-01,

(Jan. 17, 2017). The Revisions altered certain longstanding rules for evaluating medical opinion evidence for cases filed after March 27, 2017. Id. at *5844. Plaintiff protectively filed her applications on November 19, 2014, and, therefore, the Revisions do not apply to this case. |

note where applicable citations to abrogated regulations and social security rulings that were in “te. + at the time of Plaintiffs application.

controlling weight if it is “well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial evidence in... [the]

record.”

(c)(2); see also Shaw v. Chater,

(2d Cir. 2000).

Before an ALJ can give a treating physician’s opinion less than controlling weight, the

ALJ must consider the following factors to determine the amount of weight the opinion should

be given: (1) the length of the treatment relationship and the frequency of examination, (2) the

nature and extent of the treatment relationship, (3) the medical support for the treating

physician’s opinion, (4) the consistency of the opinion with the yecord as a whole, (5) the

physician’s level of specialization ‘nthe area, and (6) other factors that tend to support or

contradict the opinion. 20 CER. § A16.927(c)(2)-(6); Schisler v. Sullivan,

(2d

Cir, 1993). Although the foregoing factors guide an ALJ’s assessment of a treating physician’s

opinion, the ALJ need not expressly address each factor. Afwater v. Astrue,

(2d Cir, 2013) (summary order) (“We require no such slavish recitation of each and every factor

where the ALJ’s reasoning and adherence to the regulation are clear.”) (citing Halloran v.

Barnhart,

(2d Cir, 2004) (per curiam)). As long as the ALJ provides “good

reasons” for the weight accorded to the treating physician’s opinion and the ALI’s reasoning is

supported by substantial evidence, remand is unwarranted. See Halloran v. Barnhart,

(2d Cir. 2004). IV. DISCUSSION

A. The ALJ’s Decision By decision dated February 21, 2018, the ALJ found that Plaintiff had not been under a

disability from August 11, 2009 through the date of her decision. [R. 7-24,] The ALJ

acknowledged the Commissioner’s prior decision dated June 24, 2011 denying Plaintiffs

applications for benefits and limited her decision to June 25, 2011. [R.

At the first step of the sequential analysis, the ALJ found that Plaintiff had not engaged in

substantial gainful activity since her August 11, 2009 alleged onset date. [R. 13.] At the second

step, the ALJ found the following severe impairments: obesity, degenerative disc disease of the

lumbar spine, mild levoscoliosis of the lumbar and cervical spine, radiculopathy, and asthma.

She determined that Plaintiff had no severe mental impairments. [R. 13-14.] At the third step,

the ALJ found that Plaintiff's impairments did not meet a listing in 20 C.¥.R. Part 404, Subpart P

Appendix | (“Listings”). [R. 14.] Next, the ALJ assessed Plaintiff's RFC and determined that

Plaintiff could perform the full range of light work, except she was limited to only occasional

stooping and needed to avoid respiratory irritants. The ALJ found no mental limitations. [R. 14-

18.} At the fourth step, the ALJ determined that Plaintiff could perform her past work as a case

aide, food aide, and hairdresser. [R. 18.] The ALJ found that Plaintiff was, therefore, not

disabled, and the ALJ did not proceed to the fifth step. [R. 18.]

B. Plaintiff's Allegations of Additional Impairments are Inappropriate at this Stage of the Review Process In her response to the Commissioner's motion, Plaintiff submitted a letter providing a

brief summary of her impairments and treatment history beginning with her motor vehicle

accident in 2004. [Dkt. 25, 26-1.] However, Plaintiff also stated that at some point she was

diagnosed with diabetes and treated for breast cancer.

The medical evidence before the ALJ

and before this Court made no such references.

In general, pro se pleadings should be liberally construed, including in Social Security

matters. Nunez v. Saul, No. 19 Civ. 0170 (PED),

, at *4 (S.D.N.Y. July 13,

2020) (citing Triestman v. Fed. Bureau of Prisons,

(2d Cir. 2006)). There are

special rules concerning the submission of new evidence that was not before the ALJ. Generally,

evidence not contained in the administrative record may not be considered by a district court

when reviewing the findings of the Commissioner. Clark v. Saul,

, 625

(S.D.N.Y. 2020). A court may remand a case to allow additional evidence to be considered by

the Commissioner, but only upon a showing that the new evidence is material and that there was

good cause for the failure to incorporate the evidence into the record at the prior proceeding.

Plaintiff has not done so here. It may be true that Plaintiff suffers from additional

diagnoses and impairments, but no such evidence has been presented here, and Plaintiff shows

no good cause for the failure to present any such records, to the extent they may exist. However,

Plaintiff will have the opportunity to submit any new evidence to the Commissioner upon

remand.

(e)(2), A16.1477(e)(2), 404.983, 416.1483.

C, The ALJ’s Application of the Special Technique to Evaluate Mental Impairments at

the Second and Third Steps Was Not Supported by Substantial Evidence

At the second step of the sequential analysis, the ALJ found that Plaintiff did not have a

severe mental impairment, despite her diagnoses of generalized anxiety disorder and dysthymic

disorder, As a result, the ALJ did not evaluate whether Plaintiff's mental impairment satisfied

the Listing requirements at the third step. [R. 13-14.]

The second step of the sequential analysis is intended to “screen out the very weakest

cases.” McIntyre v. Colvin,

(2d Cir. 2014). An ALJ must determine whether

an impairment is “severe” or merely de minimis.

An ALJ may decide that an impairment is

not severe only “if the medical evidence establishes only a ‘slight abnormality’ which would

have ‘no more than a minimal effect on an individual's ability to work,’” Mezzacappa V. Astrue,

749 F, Supp. 2d 192, 205 (S.D.N.Y. 2010).

The Commissioner promulgated specific regulations governing the evaluation of the

severity of mental impairments, known as the “Special Technique.”

,1520a,

416.920a; see Urena v. Comm'r of Soc, Sec.,

(S.D.N.Y. 2019). First,

the ALJ must evaluate the medical evidence to determine the existence of a medically

determinable mental impairment.

§§ 404,1520a(b)(1), 416.920a(b)(1). Ifa claimant has such

an impairment, the ALJ must rate the degree of functional limitations resulting from the

impairments in four broad areas: (1) understanding, remembering, or applying information; (2)

interacting with others; (3) concentration, persistence, or maintaining pace; and (4) adapting or

managing oneself. Td. §§ 404,1520a(b)(2), 4{6,920a(b)(2). If the limitations are no more than

mild, the ALJ may conclude that the mental impairment is not severe, unless evidence otherwise

indicates that there is more than a minimal limitation in a claimant’s ability to do basic work

activities. fd. §§ 404.1520a(d)(1), 416.920a(d)(1). If the claimant’s mental impairment is

severe, the ALJ must compare the relevant medical findings and functional limitations to Listing

requirements at the third step. Id. §§ 404,1520a(d)(2), 416.920a(d)(2).

Here, the ALJ’s application of the Special Technique was not supported by substantial

evidence. The ALJ acknowledged diagnoses of affective and anxiety disorders. [R. 13.}

However, the ALJ found that these impairments were not severe because they caused no more

than mild limitations in Plaintiffs areas of functioning. The ALI found that Plaintiff had no limitations in her ability to interact with others based

on Plaintiffs statement at the January 9, 2018 hearing that she has “lots of friends.” [R. 13,

referring to R. 51 .| Though Plaintiff stated she had friends, not “lots of friends,” who would

visit her during the week, the ALJ takes Plaintiff's statement out of context, when viewed against

Plaintiff's remaining testimony and the medical evidence. See, @.. Craig y. Comm'r of Soc. Sec.,

, 365 n12 (S.D.N.Y. 2016) (finding it impermissible where the ALJ took the

plaintiff's statements regarding her activities of daily living out of context).

Plaintiff testified that she had limited social interaction on a regular basis. She testified

that she lived alone, but her friends may visit her twice a week to help with shopping, chores,

and laundry. [R. 51-53.] She stated that she was separated from her husband and that her adult

son had moved out of the house. [R. 52, 498.] She did not belong to a church, nor had she

traveled in the past nine years. fR. 52-54. She stated she spent most of her time alone at home

reading or watching television. [R. 54, 498.} Viewing the testimony as a whole, it is apparent

that Plaintiff testified that she had limited interactions with others.

Additionally, the ALJ’s assessment ignored medical opinion evidence. See Pagan ¥.

Chater,

(S.D.N.Y. 1996) (“the ALJ cannot ignore the medical evidence

provided by a treating physician.”). In fact, when determining Plaintiff's ability to interact with

others at the second step, the ALJ did not refer to the medical evidence at all. [R.13.] For

example, the ALJ made no reference to Dr. Goldstein’s opinion that Plaintiff was moderately

limited in her ability to interact appropriately with others. [R. 581.]

Next, the ALJ found that Plaintiff had no more than mild limitations in her concentration,

persistence, oF pace, relying on Dr. Noia’s finding that Plaintiff had intact concentration and that

she liked to read. [R. 13.] The ALJ again failed to consider Dr. Goldstein’s functional

assessment that Plaintiff was moderately limited in her ability to understand and remember

complex instructions and maintain attention and concentration. [R. 581]

Lastly, the ALJ found that Plaintiff had no more than mild limitations in her ability to

adapt and manage herself, He based this finding on Plaintiff's statements to Dr. Noia that she

lived alone and could purportedly cook, clean, shop, and perform self-care. [R. 13.] Dr. Noia

actually found just the opposite: he opined that Plaintiff had moderate limitations in her ability to

deal with stress, and that those limitations were caused by psychiatric problems, which “may at

times significantly interfere with the claimant's ability to function on a daily basis.” [R. 510.

Dr. Noia’s assessment was consistent with Dr. Goldstein’s opinion, who stated that Plaintiffs

psychological impairments would frequently interfere with her activities of daily living. [R.

Plaintiff also testified that she could not perform daily activities without assistance from

others. [R. 51-53.] The ALJ’s findings as to the Special Technique were thus not supported by substantial

evidence when viewing the record as a whole. Asa result of the ALJ’s finding that Plaintiff had

no severe mental impairments at the second step, the ALJ declined to consider Plaintiff's mental

diagnoses at the third step. [R. 14.1 To the extent that Plaintiff's mental impairments are found

to be severe, declining to conduct the Listing analysis at the third step would also be an error.

See 20 CFR. 88 404,1520a(d)(2), 416.920a(d)(2). Accordingly, the ALJ did not properly apply

the correct legal standards, and her finding was unsupported.

D. The ALJ’s Physical REC Finding is Not Supported by Substantial Evidence

The ALJ’s determination that Plaintiff could perform the full range of light work, with

the added limitation of only occasional stooping, was not supported by substantial evidence. The

full range of light work is defined as follows:

Light work snvolves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.

20 CER. §§ 404.1567(0), 416.967(b). The Commissioner’s Social Security Rulings clarify that

“frequent” means occurring from one-third to two-thirds of the time during an ¢i ght-hour

workday. SSR 83-10, Soc, Sec, Rep. Serv. 24, at #6 (S.S.A. 1983). Additionally, “the full range

of light work requires standing or walking, off and on, for a total of approximately 6 hours of an

8-hour workday.” Jd. The ALJ’s finding that Plaintiff could perform “substantially all” of the activities

required to perform light work was not supported by substantial evidence. For example, on

December 10, 2010, Dr. Gapay, Plaintiffs primary care physician, opined that Plaintiff was

markedly disabled and observed Plaintiff's inability to walk, as well as pain and decreased range

of motion of her back, neck, and shoulders. [R. 452, 461-67, 480.] He opined on multiple

occasions that Plaintiff was completely disabled from working.

The ALJ gave Dr. Gapay's opinion little weight. [R. 17.] The ALJ noted these opinions

were all dated prior to the current application period, Id. However, the ALJ did not consider

that Dr. Gapay continued treating Plaintiff during the current application period, and his findings,

based on physical examinations, showed that Plaintiff's condition was worsening. For example,

Dr. Gapay’s next physical examination of Plaintiff took place on January 29, 2015, where he

observed leg numbness and poor balance with positive SLR testing. [R. 439. He observed

worsening pain and back sprain at their next visit on November 28, 9016, [R. 552-54.] He noted

the following January that Plaintiff had attended physical therapy, which made her symptoms

worse. [R. 549-51.] The ALJ was required to review the medical evidence in light of the record

as a whole, which she failed to do, choosing instead to focus on specific records pre-dating the

relevant period. Furthermore, Dr. Gapay's treating source opinion was supported by substantial evidence

from the record. Plaintiff treated with Dr. Jindal who consistently assessed pain based on

physical examinations, as well as observations of tenderness, spasms, and abnormal gait. As a

result, he continually administered trigger point injections, which provided no more than

temporary relief. [R. 383-99. In fact, in 2014, Plaintiff continued reporting worsening pain, as

well as numbness, tingling, and weakness, and Dr. Jindal again noticed an abnormal gait. [R.

401-08, 410-14.} Dr. J indal's findings support Dr. Gapay's opinion and undercut the ALJ's RFC

findings. The ALJ also gave little wait to Dr. Gapay's opinion due to Plaintiff's allegedly

“eonservative treatment.” [R. 17.| In light of Plaintiff's extensive treatment with Dr. Jindal. the

ALJ's characterization of Plaintiff's treatment was improper.

The AL] also ignored the opinion of Plaintiff's physical therapist, George Giovannone.

As a physical therapist, Mr. Giovannone is not an “acceptable treating source” under the

Commissionet's regulations, and therefore is not entitled to controlling weight. See, €.g., Brush

y, Berryhill,

(S.D.N.Y. 2018) (“[A] physical therapist is not

an acceptable medical source.”). However, the ALJ is still obligated to consider medical

evidence even from non-medical professionals such as physical therapists. SSR 06-03P,

, *3 (S.S.A. Aug. 9, 2006) (“Opinions from these medical sources ... should be

evaluated on key issues such as impairment severity and functional effects, along with the other

relevant evidence in the file.”).* Physical therapy records may also constitute substantial evidence, which an ALJ is

obligated to consider when reviewing the record as a whole, Ortiz v. Saul, No. 19 Civ. 942

(ALC),

, at *7 (S.D.N.Y. Mar. 10, 2020) (“Although physical therapists are

not acceptable medical sources, the opinions of physical therapists may constitute substantial

evidence where the opinions are well documented and supported by the medical evidence.”).

8 Abrogated by the Revisions to Rules Regarding the Evaluation of Medical Evidence, but am at. gah tte Diaintiff filed.

Here, Mr. Giovannone opined that Plaintiff had decreased ambulation distance and difficulty

ascending stairs, lifting, performing overhead activities, and performing her activities of daily

living. [R. 513-14] These findings support Dr. Gapay's treating source opinion and go against

the ALJ's physical RFC finding. Dr, Gapay's findings are also supported by Dr. Moga's August 9, 2010 opinion, to which

the ALJ gave some weight. [R. 17, referring to R. 638-40.| In general, disability determinations

made for Workers’ Compensation are not afforded controlling weight because the standards for

Workers’ Compensation disability are different from those under the Social Security Act. Brodie

vy, Comin'r of Soc. Sec., No. 19 Civ. 6968 (PAE)(RWL),

, at *7 (S.D.N.Y.

Aug. 25, 2020), report and recommendation adopted sub nom.

(S.D.N.Y.

Sept. 28, 2020). Nevertheless, an ALJ may still rely on the opinion of a Workers’ Compensation

examiner. Perozzi v. Berryhill,

(S.D.N.Y. 2018). Here, the ALJ gave

no reason as to why Dr. Moga's opinion that Plaintiff was moderately disabled was given “some

weight.” [R. 17.] Instead, Dr. Moga’s opinion, as the opinions of the other medical and non-

medical sources, conform to Dr. Gapay’s opinion. In support of her RFC finding and her rejection of Dr. Gapay’s treating source opinion,

the ALJ relied, in part, on the opinion of the consultative examiner, Dr. Weiskopf, to whom the

ALJ gave great weight. [R. 17, referring to R. 497-501.] With regard to lifting, Dr. Weiskopf

actually opined that Plaintiff had moderate limitations in her ability to lift and carry. [R. 500.]

His opinion, therefore, does not support to the ALJ's finding that Plaintiff could lift up to 20

pounds, or that she could carry 10 pounds for two or three hours in an eight-hour workday. In

terms of lifting, therefore, Dr. Weiskopf’s opinion lends further support to Dr, Gapay’s treating

source opinion, Thus, based on the record as a whole, substantial evidence does not support the

ALJ’s finding as to Plaintiff's ability to lift. In light of the record as a whole, Dr. Gapay’s

opinion was well-supported by medical evidence and consistent with the record. The ALJ,

therefore, did not properly defer to his opinion in light of the treating physician tule. See Shaw v.

Chater,

. There is similarly insufficient support for the ALI’s finding that Plaintiff met the walking

requirement for light work. Here, ALJ relied on Dr. Weiskopf, who opined that Plaintiff had no

limitations in her ability to walk. [R. 17, referring to R. 500.] This reliance was improper. A

consultative examiner is not a treating source, and instead provides a one-time examination,

serving as a "snapshot" ofa claimant's abilities and physical condition on a particular day.

“Because the consultative sources .. . only evaluated Plaintiff on one occasion each, their

evaluations ‘convey| ] only a snapshot of Plaintiff's symptoms on the day of the examination or,

at most, for a brief period close to that time,’ in contrast to the reports of the treating physicians,

whose opinions reflected Plaintiff's condition over the course of months or years. Mahon v.

Colvin, No. 15 Civ. 2641 (PKC),

, at *16 (E.D.N.Y. Mar. 31, 2017), To the

extent there exists a conflict between a treating source and a consultative examiner, the conflict

should be resolved in favor of the treating physician. Cabreja v. Colvin, No. 14 Civ. 4658

(VSB),

, at *30 (S.D.N.Y. Oct. 27, 2015). Here, Dr. Weiskopf's opinion that Plaintiff had no limitations in her ability to walk was

dramatically opposed to the record as a whole, including the opinions of Dr. Gapay, Dr. Jindal,

Dr. Moga, and Mr. Giovannone, as well as the consistent physical examinations showing

abnormal gate, positive SLR tests, limited range of motion, pain, spasms, and loss of strength.

Dr. Weiskopf’s opinion was also contradicted by his own physical examination, insofar as he

found that Plaintiff could not walk on her hecls and toes, and she could not squat. [R. 498. □

These limitations in Plaintiff's ability to walk cannot be reconciled with Dr. Weiskopf’s opinion

that Plaintiff had no limitations in her ability to walk.

In further support of her finding that Plaintiff could walk and stand for six hours in an

eight-hour workday, the ALJ referred to instances where Plaintiff displayed a normal gait. [R.

15-17.] This was improper. It is true that Plaintiff demonstrated a normal gait on several

occasions, including during Dr. Weiskopf's examination. However, Plaintiff also demonstrated

an abnormal gait throughout the relevant period. [see, e.g., R. 389, 391, 405.] The ALJ, in

effect, cited only the evidence to support her desired RFC finding while ignoring the substantial

evidence supporting a greater degree of limitations. The ALJ is not entitled to "cherry-pick"

evidence in this manner. Annabi v. Berryhill, No. 16 Civ. 9057 (BCM),

, at

#16 (S.D.N.Y. Mar. 39, 2018) C[A]n administrative law judge may not ‘cherry-pick’ medical

opinions that support his or her opinion while ignoring opinions that do not.”) (internal citations

omitted). Moreover, having a normal gait is not indicative of having the ability to walk for six

hours in an eight-hour workday. See, ¢.g., Mezzacappa v. Astrue,

(S.D.N.Y. 2010) (holding that there was insufficient evidence to support a finding of light work,

despite examinations showing the claimant had a normal gait.). Lastly, the ALJ overstated Plaintiff's statements concerning her activities of daily living

to justify her ability to walk and lift. [R. 17.] In general, the ALJ has discretion to resolve

conflicts between the medical evidence and a claimant’s activities of daily living. Perozzi v.

Berryhill,

(S.D.N.Y. 2018). However, there were no inconsistencies

here between Plaintiff's daily activities and her ability to function. Plainuff stated, and her

medical providers opined, that she was limited in her ability to shop, clean, cook, and even put

on her own socks and shoes. The ALJ *s vague reference to Plaintiff's ability to perform various

activities was greatly overstated. [R. 17, cf R. 51-54.] See, e.g. Craig,

n.12 (finding that the ALJ overstated the claimant’s abilities to perform activities of daily living when she testified that she required help when shopping and using public transportation). Accordingly, the ALJ's finding that Plaintiff could perform the full range of light work,

particularly concerning Plaintiffs ability to lift and walk, was against the weight of the record

and not supported by substantial evidence. E. The ALJ's Mental REC Finding Was Not Supported by Substantial Evidence

The ALJ's finding that Plaintiff had no mental limitations was also unsupported by substantial evidence and against the weight of the record. [R. 14.] Even though the ALJ found

that Plaintiff had no severe mental impairments at the second step of the sequential analysis, she

was still obligated to assess the effects of Plaintiff's non-severe mental impairments when

determining her RFC. Parker-Grose v. Astrue,

(2d Cir. 2012) (finding that

the ALJ erred by failing to account for any limitations arising from the claimant's mental

impairments, even after finding that those impairments were not severe). T he record as a whole

does not substantially support the ALJ's finding as to the absence of any mental impairments. Plaintiff had received psychiatric treatment for approximately two years with Dr.

Goldstein. [R. 592, 595-630.] This treatment followed years of references to Plaintiffs anxiety

and depression by Plaintiff's doctors. [see, ¢.g., R. 317, 448-49.] Dr. Goldstein opined that

Plaintiff's psychological impairments would frequently interfere with her activities of daily

living, and that she could not participate in work related activities. He further opined that she

had moderate limitations in her ability to understand and remember complex instructions,

maintain attention and concentration, interact appropriately with others, and perform low stress

and simple tasks. [R. 581.] These findings would support a finding of at least some mental limitations. Nevertheless, the ALJ gave Dr. Goldstein's opinion little weight, in contravention of the

treating physician rule. The ALJ relied, in part, on Dr. Noia's opinion. [R. 17, referring to R.

507-10.] The ALJ's characterization of Dr. Noia's opinion was incorrect, and the ALJ expressly ignored the portions of Dr. Noia's opinion that contradicted the RFC. [R. 17 ("Some weight is

given to Dr. Noia.. .. Less weight is given to that portion of the opinion which found moderate limitations . . ..")]. Here, the ALJ cherry-picked the medical evidence to conform to her desired

RFC. Dr. Noia actually opined that Plaintiff had moderate limitations in her ability to deal with

stress and found that her impairments may significantly interfere with her ability to function on a

daily basis. [R. 510.] This assessment supports Dr. Goldstein's findings and, therefore, does not

provide substantial evidence to override Dr. Goldstein's treating source opinion. The ALJ fails to provide any other valid basis to overturn Dr, Goldstein's opinion. The

ALJ makes a vague reference to “conservative treatment,” and makes no reference whatsoever to

Plaintiff's years of psychiatric treatment. [R. 17, ef. R. 595-630.} She again refers to Plaintiff's

“wide range of daily activities,” even though Plaintiff was limited in her ability to perform

activities of daily living due to both physical and mental limitations. [R. 17.] She references a

lack of clinical findings, again disregarding the consistent clinical findings showing mental

limitations and symptoms. In addition to both Dr. Goldstein's and Dr. Noia's records, Dr. Gapay

and Dr. Hansraj found psychological impairments, including anxiety, depressive symptoms, and

trouble sleeping. [R. 317, 437, 482, 568-71.] Taken together, these records do not substantially

support the ALI’s finding.

Lastly, the ALJ relied on what might be a misrepresentation of an assessment by Dr. Bruni, a state agency psychologist. [R. 16, referring to R. 101-11.] Dr. Brunt reviewed Plaintiff's file on April 23, 2015 and found, based on the records before him at the time, that there was insufficient evidence to find a severe mental impairment. [R. 105-06.] The ALJ states that Dr, Bruni found, “based on an evaluation of the record,” that Plaintiff's mental impairments were not severe. [R. 16.] This characterization is disingenuous. Dr. Bruni did not have a complete record, and he did not evaluate the record that was before the ALJ. In fact, he did not have the opportunity to review any of Plaintiff's mental health treatment records. His April 23, 2015 assessment predated the very first visit Plaintiff had with Dr. Goldstein, which did not

occur until January 22, 2016. [R. 595.] The ALJ's interpretation appears to suggest that Dr, Bruni reviewed “the record” that was before the ALJ, and, therefore, disagreed with Dr, Goldstein's assessments, which is factually incorrect. Dr. Bruni’s assessment, taken out of

context, does not constitute substantial evidence to override Dr. Goldstein’s opinion. Accordingly, the ALJ’s finding as to Plaintiffs lack of mental limitations was not supported by substantial evidence. F, The ALJ Failed to Develop the Record It is well established that the Commissioner is obligated to develop the record, even where a claimant is represented by counsel at the administrative level. Mezzacappa, 749 F, Supp. 2d at 204. Social Security disability determinations are non-adversarial, and the Commissioner’s obligations are investigatory and inquisitorial in nature. Therefore, it is the ALJ's duty to investigate and develop the facts and arguments both for and against a claimant.

Butts v. Barnhart,

(2d Cir. 2004), as amended on reh’g in part,

(2d Cir. 2005). To that end, the ALJ is obligated to affirmatively seck out additional evidence to

fill “obvious gaps in the administrative record.” Craig v. Comm'r of Soc. Sec.,

(S.D.N.Y. 2016). The ALJ fatled to do so here. The record contained no updated functional assessments of Plaintiff's ability to perform physical work-related activities from Plaintiff's treating sources during the relevant period. The ALJ correctly noted that the only physical functional assessment from a treating source came from Dr, Gapay predating the relevant period. [R. 17, referring to R. 450-53, 461-67, 568-71. The absence of updated functional assessments during the relevant period from treating sources constitutes an obvious gap in the record which the ALJ was obligated to remedy. DeJesus v. Comun'r of Soc. Sec., No. 13 Civ. 2251 (AIN)(HBP),

, at *15 (S.D.N.Y. Sept. 29, 2014) (finding that the ALJ's failure to obtain updated functional assessments from treating sources constitutes a gap in the record and violated the ALJ's duty to develop the record). VY. CONCLUSION For the forgoing reasons, Defendant's motion is DENIED. The Court remands this case for further administrative proceedings. The Clerk of the Court is directed to terminate the pending motion [Dkt. 20.] and close this case. Dated: January 4, 2021 White Plains, New York SO ORDERED _

Paul E~Davison United States Magistrate Judge