Balz v. Kijakazi

Full title: Gregory Balz, Plaintiff, v. Kilolo Kijakazi, [1] Acting Commissioner of…

Court: United States District Court, S.D. New York

Date published: Jan 25, 2022

20 Civ. 7729 (KMK)(PED) (S.D.N.Y. Jan. 25, 2022)

Opinion

20 Civ. 7729 (KMK)(PED)

01-25-2022

Gregory Balz, Plaintiff, v. Kilolo Kijakazi, [1] Acting Commissioner of the Social Security Administration, Defendant.

Paul E. Davison, U.S.M.J.

TO THE HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.

REPORT AND RECOMMENDATION

Paul E. Davison, U.S.M.J.

I. INTRODUCTION

Plaintiff Gregory Balz brings this action pursuant to 42 U.S.C. § 405(g) challenging the decision of the Acting Commissioner of the Social Security Administration (“SSA” or the “agency”) denying his application for Disability Insurance Benefits (“DIB”). [Dkt. 1.] Your Honor referred this matter to me for a report and recommendation. [Dkt. 5.] Plaintiff filed a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) to reverse the Acting Commissioner's decision that Plaintiff was not disabled within the meaning of the Social Security Act, 42 U.S.C. §§ 423 et seq., and to remand the matter for further administrative proceedings. [Plaintiff's Motion at Dkt. 19; Memorandum of Law at Dkt. 20; Reply in Support at Dkt. 26.] The agency filed a cross-motion for judgment on the pleadings to affirm the Acting Commissioner's decision and to dismiss this action. [Defendant's Motion at Dkt. 24; 1

Memorandum of Law at Dkt. 25.] For the reasons that follow, I respectfully recommend that Your Honor GRANT Plaintiff's motion, DENY the Acting Commissioner's motion, and remand this matter for further administrative proceedings.

II. BACKGROUND

Plaintiff is a former police officer with the NYPD who retired on March 31, 2014. [R. 37.] He claims to have been disabled due to conditions he contracted as a responder to the September 11, 2001 World Trade Center terrorist attacks: sarcoidosis of the lung and liver, asthma, chronic sinusitis, gastrointestinal reflux disease (“GERD”), and sleep apnea. He also suffers from a brain aneurysm and derangement of his knees and spine. [R. 53-54.]

A. Procedural History

Plaintiff protectively filed an application for DIB on December 28, 2018, alleging that he had been disabled since March 31, 2014. [Protective Filing at R. 168-70; Application at 179-85.]² Plaintiff's application was denied, and he requested a hearing before an Administrative Law Judge (“ALJ”). [Denial at R. 78-79; Denial of Reconsideration at R. 91-102; Request for ALJ Hearing at R. 103.] Plaintiff appeared with counsel at a hearing before an ALJ on January 31, 2020. [R. 31-51.] On February 7, 2020, the ALJ denied Plaintiff's application. [R. 6-27.] The ALJ's decision became the Acting Commissioner's final decision on July 21, 2020 when the Appeals Council denied Plaintiff's request for review. [R. 1-5.] Plaintiff timely commenced this action on September 18, 2020. [Dkt. 1.] 2

2 Notations preceded by “R.” refer to the certified administrative record of proceedings relating to this case submitted by the Acting Commissioner in lieu of an answer. [Dkt. 18.]

B. Medical Evidence

Prior to retiring from the NYPD, Plaintiff underwent a medical examination on March 6, 2014. A nuclear stress test was normal and showed no evidence of a heart attack or angina, and Plaintiff's blood pressure and heart contractions were normal and responsive to exercise. The study was not consistent with coronary disease, and Plaintiff had a normal ejection fraction. [R. 729-30, repeated at R. 734-35.] However, an EBT (electron beam tomography) of Plaintiff's heart and body taken the same day found calcified plaque in Plaintiff's coronary arteries. [R. 731-33, repeated at R. 736-38, 740-42.]

Plaintiff was advised to follow up with a doctor due to the abnormal EBT, and so Plaintiff saw Dr. Andrew Hirsch at Horizon Family Medical on March 25, 2014. [R. 451-52.] Dr. Hirsch referred to Plaintiff's body scan which revealed liver abnormalities, including multiple nodules in Plaintiff's chest and large parenchymal calcifications in his liver. Plaintiff reported developing a cough, especially after showering. Plaintiff's physical examination was normal, including normal vitals, cardiopulmonary sounds, and neurological indicators. [R. 451.] Dr. Hirsch assessed pulmonary nodules and an abnormal CT scan of the liver. [R. 451-52.]

Dr. Hirsch opined that the nodules in Plaintiff's lungs were too small at the time to make a diagnosis, and so he referred Plaintiff to Dr. Thomas Reed, whom Plaintiff saw the next day. [R. 449-50.] Dr. Reed stated that Plaintiff's exposure to Ground Zero during 9/11 raised the possibility of an inflammatory reaction. He referred to Plaintiff's March 6, 2014 EBT which showed the nodules and liver calcifications. [R. 449.] Plaintiff followed with Dr. Alan Plumer on March 28, 2014. [R. 447-48, repeated at R. 705-06.] Dr. Plumer noted that at the time of Plaintiff's retirement, Plaintiff had no symptoms but underwent a comprehensive evaluation at 3 the recommendation of the police union, which revealed the lung and liver abnormalities. A liver x-ray confirmed the presence of liver abnormalities, but Dr. Plumer opined that he was not at risk of any significant liver disease. Dr. Plumber noted the possibility of an infiltrative liver disease, possibly sarcoidosis or amyloidosis, and recommended blood work and a liver biopsy. [R. 447.] He also referred Plaintiff for an MRI. [R. 448.]

Dr. Plumer reported that a May 5, 2014 study revealed a nodular liver contour with right-sided volume loss and multiple capsular and peripheral calcifications along the fissures and ligaments. [R. 703-04, repeated at R. 708-09, 864-65.] Plaintiff underwent an MRI of his abdomen on August 8, 2014, which revealed cirrhosis, right-sided volume loss, and multiple calcified lesions on his liver. The calcified liver masses did not significantly change in size as compared to the March 6, 2014 study. [R. 682-83, repeated at R. 862-63.] The report stated that Plaintiff underwent the procedure for “malignant neoplasm of the thyroid gland, ” which Dr. Plumer stated was inaccurate. [see R. 438, referring to R. 682.] Dr. Plumer discussed the results of the MRI with Plaintiff over the phone on August 11, 2014 and noted that the liver lesion measured 12 by 5.2 centimeters. [R. 443.] Plaintiff followed up with Dr. Roxana Bodin after a liver biopsy on September 23, 2014, which did not suggest chronic liver disease, coronary artery disease, or cirrhosis. [R. 664-66, repeated at R. 669-71.]

On April 2, 2015, Plaintiff saw Dr. Connie Chuang due to a cough and throat discomfort. [R. 326-31, repeated at R. 754-57.] Plaintiff noted that he was able to jog but experienced chest cramping. [R. 326.] Upon physical examination, Plaintiff's head, eyes, and ears were normal. Plaintiff had a whitish discharge from his nose, and there was cobblestoning in his mouth but no masses on the inside of his throat. Plaintiff's lungs, heart, abdomen, pulses, extremities, and skin 4 were all normal. [R. 328.] Plaintiff had a CT scan of his chest on April 13, 2015, which revealed cirrhosis and “bilateral intraparenchymal calcified granulomata, ” or calcified masses in the tissue of both sides of Plaintiff's liver. [R. 332-33, repeated at R. 760-61.]

Plaintiff next saw Dr. Plumer on April 20, 2015. [R. 438-40.] Referring to the August 8 MRI, Dr. Plumer noted that Plaintiff had no clinical history of a thyroid disorder. Dr. Plumer opined that the sonogram suggested the possibility of a liver mass and possible cirrhosis, and multiple calcified lesions within the liver, and a 12 by 5.2 centimeter conglomerate mass lesion. The August MRI was compared to the March 6, 2014 CT scan and showed no significant change in size or appearance. The results of a biopsy showed findings consistent with a prior injury that was, at the time, well-healed. The results of an abdominal ultrasound on October 15, 2014 were limited but consistent with possible cirrhosis with multiple calcified areas. There was no evidence of chronic liver disease, but there were focal localized areas of fibrosis. [R. 438.] Dr. Plumer conducted a general physical examination. Plaintiff's neck was non-tender neck, his muscle strength and gait were normal, and there were no abnormalities in Plaintiff's extremities. [R. 439.] Plaintiff saw Dr. John Carey on April 29, 2015 for swelling in his eye. [R. 435-36.]

Plaintiff underwent an abdominal ultrasound on June 5, 2015, which confirmed the existence of multiple liver calcifications. [R. 334-34, repeated at R. 662-63, 762-63.] Plaintiff spoke with Dr. Plumer over the phone on June 19, 2015 to discuss the results of the ultrasound, and Plaintiff stated that he had been feeling well overall. [R. 433.] Plaintiff underwent a subsequent abdominal ultrasound on April 26, 2016, which also showed multiple liver calcifications with no obvious mass lesions. Plaintiff's gallbladder, pancreas, kidneys, and spleen appeared normal. [R. 336-37, repeated at R. 653-54, 655-56, 764-65.] 5

On July 21, 2016, Plaintiff saw Dr. Roy Carman for a World Training Center medical monitoring examination. [R. 338-41, repeated at R. 766-69.] Dr. Carman noted that Plaintiff had had 900 hours of exposure at the World Trade Center site. Dr. Carman assessed mild, chronic rhinitis and sinusitis, and Plaintiff stated that he experienced red eyes and a cough throughout the year since 9/11. At the time of the examination, Plaintiff reported no respiratory symptoms, but Dr. Carman noted that pulmonary nodules were found toward the end of Plaintiff's tenure as a police officer. He opined that Plaintiff's liver abnormalities appeared stable. Plaintiff had no issues with GERD at the time, his mental evaluation was normal, and Plaintiff had swelling in his knee. [R. 338.] Plaintiff denied difficulty breathing at night, as well as chest pain and discomfort. [R. 339.] He denied fatigue, lightheadedness, shortness of breath with exertion, palpitations, swelling in his hands and feet, difficulty breathing while lying down, leg cramps with exertion, and gastrointestinal symptoms. [R. 340.]

On examination, Plaintiff was not in distress. His head, eyes, and ears appeared normal. Plaintiff's nasal passages were mildly inflamed. His mouth, neck, and chest walls appeared normal. Plaintiff's lungs and heart sounded normal, and his vitals were within normal limits. He had no scolliosis or deformity in his extremities, but Dr. Carman noted “mild bilateral knees”. Plaintiff's pulses, extremities, and neurological examination were normal. [R. 340.] Dr. Carman assessed chronic rhinitis, GERD, lung abnormalities, and a pulmonary nodule. [R. 341.]

Plaintiff next saw Dr. Plumer on July 5, 2017 for an annual ultrasound. [R. 425-26.] Dr. Plumer conducted a general physical examination. Plaintiff was alert and oriented and in no acute distress. His vitals were stable, and his lungs and heart sounded normal. [R. 425.] Dr. Plumer scheduled the ultrasound and a colonoscopy. [R. 426.] Plaintiff also saw Dr. Barbara 6 Marroccoli on July 20, 2017 for an annual World Trade Center medical monitoring examination. [R. 344-51, repeated at R. 772-76.] She recounted Plaintiff's past medical history and noted that Plaintiff had recently been experiencing heartburn and constant throat clearing. He did not report any depression, anxiety, or PTSD. [R. 344.] A physical examination was normal, including normal musculoskeletal, cardiorespiratory, and neurological findings. [R. 346-47.]

Plaintiff underwent an abdominal CT scan on July 27, 2017 which showed multiple calcifications throughout the liver, unchanged from the previous study. [R. 352, repeated at R. 648, 780.] Plaintiff also underwent an endoscopy on September 14, 2017. [R. 524-28.] He saw Dr. Plumer on the same day to discuss the results, and he noted a polyp but was awaiting on pathology results. [R. 420-21.] Dr. Petr Bezdicek conducted a chest x-ray on October 10, 2017 which did not show any abnormalities. [R. 620.] Plaintiff followed with Dr. Bezdicek on November 14, 2017 concerning Plaintiff's lung nodule and the chronic cough he had developed. [R. 622-25.] Dr. Bezdicek referred to x-rays and laboratory results showing calcified granuloma of the lung and a liver, which Dr. Bezdicek stated was connected to Plaintiff's work at the World Trade Center site. [R. 623.] Plaintiff was asymptomatic, and Dr. Bezdicek did not recommend a CT scan. [R. 624.] Plaintiff saw Dr. Hirsch for a pre-operation clearance to perform an EKG and blood tests. [R. 417-18.] Plaintiff's general physical examination was normal. [R. 417.]

A February 4, 2018 MRI of the right knee showed internal degeneration within the medial meniscus without evidence of tearing or a deformed patella. [R. 837-38.] Plaintiff underwent a cholesterol screen and blood pressure check on June 13, 2018, at which time he was assessed hypertension with a noted family history of cerebral aneurysm. [R. 412-13.] Plaintiff followed up on June 28, 2018 to go over the results of the labs, which were normal. At the time, Plaintiff 7 had full range of motion and no evidence of deformities in his extremities. [R. 407-09.] A July 3, 2018 MRA (magnetic resonance angiography) revealed the presence of a 2 millimeter brain aneurysm left of the internal carotid artery. [R. 597.] Plaintiff's wife spoke with Dr. Hirsch on July 5, who recommended a neuro-surgical exam due to the brain aneurysm, as well as vascular surgery. [R. 406.] Plaintiff followed up with Dr. Anthony Scardella on July 12 for a pulmonary evaluation as part of a World Trade Center medical evaluation. [R. 354-57.] Plaintiff saw Dr. Marroccoli on the same day who noted the same findings. [R. 358-65, repeated at R. 782-90.] Plaintiff underwent a chest CT scan on July 23, which Dr. Boris Novik stated showed no evidence of mediastinal adenopathy. The scan showed stable calcifications involving the right lung apex and a markedly atrophic liver. There was a stable .3 centimeter left lower lobe pulmonary nodule, but no new nodules as compared to the March 13, 2015 examination, and no evidence of airspace disease. [R. 366-67, repeated at R. 587-88, 794-95.]

On August 23, 2018, Plaintiff saw Dr. Scardella who noted that Plaintiff's cough was still present but was slightly better. [R. 368-70, repeated at R. 796-98.] Plaintiff needed to use his rescue inhaler on a regular basis for coughing fits. At the time, Plaintiff had no chest tightness or wheezing, but he did have shortness of breath, and his symptoms worsened with humidity. [R. 368.] Plaintiff's physical examination was normal, including normal heart, lung, and abdominal sounds. [R. 369-70.] Dr. Scardella assessed a chronic cough. [R. 370.]

Plaintiff's wife called the hospital on August 27, 2018 reporting that Plaintiff had high blood pressure at 140/90 and headaches, but no chest pain or shortness of breath. She was instructed to take Plaintiff to the emergency room if he developed pain and shortness of breath. [R. 404.] Plaintiff's wife called again on September 4, 2018 reporting that Plaintiff's blood 8 pressure had been elevated. [R. 403.] Plaintiff saw Dr. Samer El Zarif on September 11, 2018 who diagnosed shortness of breath. [R. 324, repeated at R. 752.] Plaintiff followed with Dr. Scardella on October 18, 2018, who noted that Plaintiff was still having coughing bouts. [R. 374-76, repeated at R. 802-04.] Plaintiff also followed with Dr. Hirsch on October 25, 2018 for a blood pressure check. [R. 398-400.] Plaintiff's blood pressure had ranged from 140/90 to 120/70, and a general physical examination was normal. Dr. Hirsch assessed sarcoidosis of the lungs, essential hypertension, hepatic granuloma associated with sarcoidosis, and an internal carotid aneurysm. [R. 398.]

Dr. Kevin Weiner evaluated Plaintiff on November 7, 2018. [R. 320-21.] Dr. Weiner stated that Plaintiff was a New York police officer “who had to retire secondary to sarcoidosis.” He noted Plaintiff's lung and liver biopsies, chronic cough, pain in the right lower quadrant, brain aneurysm, bilateral knee pain, and raspy voice. He referred to Plaintiff's colonoscopy which revealed polyps and adenoma. Plaintiff had become allergic to mold and dust since 9/11. He had severe rhinitis and had been developing photophobia which made it difficulty to look at lights and go outside, requiring Plaintiff to wear glasses. Plaintiff had persistent headaches and complaints of migraines. He had limited cervical range of motion with tenderness to palpation along the cervical paraspinal muscles, triggers in the upper trapezius and posterior rhomboid muscles, and bilateral pain along the acromloclavicular joint. He had a positive Yergason's test (indicative of shoulder impingement syndrome) and deltoid weakness at 4/5. He had limited lumbar range of motion, pain in both knees, weakness in his legs, difficulty ambulating due to pain, and he became short of breath during resistive testing. [R. 320.] Dr. Weiner recommended that Plaintiff follow up with the 9/11 fund. [R. 321.] 9

Plaintiff followed with Nurse Barbara Spreitzer for a blood pressure check the following day, at which Plaintiff's general physical examination was normal. [R. 394-95.] A November 26, 2018 x-ray of the right knee showed minimal degenerative lipping in the upper and lower margins of the patella on both sides, which suggested right patellar tendinitis. [R. 319.]

On December 5, 2018, Dr. Weiner reported that Plaintiff was following up regarding his asthma and sleep apnea, as well as gastrointestinal issues. He stated that Plaintiff needed to be careful with valsalva activities (e.g. blowing his nose), which could rupture his brain aneurysm. Plaintiff also had severe knee pain, and x-rays showed arthritic changes. He recommended that Plaintiff obtain a left knee MRI due to buckling. He had persistent back pain radiating down to his legs with numbness, for which Dr. Weiner recommended obtaining an MRI of the lumbar spine. He opined that Plaintiff was totally disabled and would not be able to work. [R. 318.]

Plaintiff saw Dr. Harshan Weerackody on December 19, 2018 due to shortness of breath, as well as a check-up regarding hypertension and his brain aneurysm. [R. 583-86.] Plaintiff stated that his symptoms were worse with cold and exertion. He was able to exercise, but not outside. [R. 583.] Upon physical examination, Plaintiff appeared normal. His musculoskeletal and cardiorespiratory examinations were normal. Dr. Weerackody assessed sarcoidosis, hepatic granuloma associated with sarcoidosis, brain aneurysm, dyspnea, and hypertension. [R. 585.] He referred Plaintiff for an echocardiogram and elctrocardiogram. [R. 585-86.] A nerve conduction study on the same day showed bilateral L5/S1 radiculopathy. [R. 850-51.]

Plaintiff followed with Dr. Plumer on December 27, 2018. [R. 391-92.] Plaintiff had been having persistent right-sided abdominal discomfort below the ribs, worse with activity. Upon physical examination, Plaintiff's neck was supple and nontender. His muscle strength and 10 gait were normal. His abdomen was soft and nontender. Dr. Plumer assessed right upper quadrant pain and noted that sarcoidosis could not entirely be ruled out as a cause of Plaintiff's symptoms, and he may benefit from physical therapy and heat therapy. [R. 391.]

On January 2, 2019, Plaintiff underwent a sleep study by Dr. Weerackody using a holter heart monitor. [R. 389.] During the study, Plaintiff had a normal heart rate with no evidence of atrioventricular conduction disease and no significant systolic pauses. However, there were small changes in Plaintiff's heart rate (atrial and ventricular ectopy), but no complex arrhythmias (irregular heart rate and rhythm). Plaintiff had several episodes of waking up suddenly. His sinus rhythm and blood pressure were normal. [R. 552.] An echocardiogram taken that day was normal. [R. 578.]

On January 9, 2019, Plaintiff followed with Dr. Scardella after having a significant cardiopulmonary attack, which required the use of Plaintiff's rescue inhaler. [R. 378-81, repeated at R. 806-09, 922-25.] Plaintiff's cough continued, but there were no symptoms related to GERD at the time. Plaintiff reported that he used his inhaler at least once a day. Dr. Scardella noted that a recent exercise test did not show any cardiac abnormality. Plaintiff stated that his snoring had increased, he did not wake up refreshed, and that he woke up at night with shortness of breath. [R. 378.] A general physical examination was normal. Dr. Scardella assessed chronic cough and sleep apnea. [R. 380.] A January 15, 2019 sleep test showed moderate obstructive sleep apnea and fragmented sleep, and it was recommended that Plaintiff obtain a CPAP machine. [R. 382-87, repeated at R. 810-20.]

Plaintiff followed with Dr. Weerackody on January 16, 2019. [R. 549-51.] Plaintiff reported that he had not experienced chest pain, no shortness of breath during the day, during 11 sleep (“PND” or “paroxysmal nocturnal dyspnea”), or while lying down (“orthopnea”), leg edema, dizziness, palpitations, or syncope since his last visit. [R. 549.] An exercise stress test showed excellent exercise capacity. An echocardiography was normal and not compatible with sarcoid heart disease. Plaintiff had normal sinus rhythm through sleep and no renal artery stenosis. [R. 550.] On January 23, 2019, Dr. Weiner reported that Plaintiff would experience difficulty breathing and shortness of breath after walking one block, and he confirmed Plaintiff for a handicap placard. Plaintiff also experienced severe right knee pain and buckling. Dr. Weiner opined that Plaintiff was totally disabled and unable to work. [R. 967.]

A February 4, 2019 x-ray of the lumbar spine revealed multi-level osteoarthritis, a possible calcified upper quadrant mass, and calcified lymph nodes. Plaintiff was recommended for an additional CT scan. [R. 839-40.] Dr. Iris Udasin wrote a letter on February 8, 2019 based on Plaintiff's treatment since December 2008 as part of the World Trade Center Responder Health Program. On August 6, 2018, she certified that Plaintiff's diagnosis of sarcoidosis of the lung were caused or exacerbated by Plaintiff's exposure to toxins at the World Trade Center site. [R. 323, repeated at R. 750.] On February 20, 2019, Plaintiff saw Dr. Scardella for a cough and throat discomfort, triggered by cold air and humidity. Plaintiff's physical examination was normal, and Dr. Scardella assessed chronic cough, chronic rhinitis, and sarcoidosis. [R. 919-21.]

On March 6, 2019, Dr. Weiner recommended that Plaintiff obtain a CT scan because of a possible calcified mass in Plaintiff's right upper quadrant as well as calcified lymph nodes. He noted that an MRI of the right knee showed degeneration and deformities of the meniscus and patella. He recommended that Plaintiff obtain an additional MRI due to his back pain and noted that Plaintiff had difficulties with activities of daily living. [R. 966.] Plaintiff saw Dr. Hirsch on 12 March 8, 2019 for a rash on his neck and torso, and Dr. Hirsch noted the right upper quadrant abdominal mass. [R. 870-72.] A March 21, 2019 CT scan of Plaintiff's abdomen showed multiple calcifications throughout Plaintiff's liver. [R. 841-42.]

Plaintiff saw Dr. Scardella on April 3, 2019 who noted that Plaintiff's cough was unchanged, and that Plaintiff's GERD was improving, but Plaintiff was still somewhat symptomatic. He noted that Plaintiff's exercise tolerance was unchanged but not too limiting, and he assessed rhinitis. [R. 916.] Plaintiff's general physical examination normal. [R. 918.] Plaintiff met with Dr. Jag Sunderram on April 13, 2019 for his sleep study results. [R. 910-15.] Dr. Sunderram diagnosed obstructive sleep apnea, which he certified was related to Plaintiff's work at the World Trade Center post-9/11, periodic limb movement disorder, and a delayed sleep phased circadian rhythm disorder. [R. 914.]

On April 14, 2019, agency medical consultant Dr. A. Auerbach³ reviewed Plaintiff's medical history to date and opined that Plaintiff could perform the requirements for the full range of light work as defined under 20 C.F.R. § 404.1567(b). [R. 53-61.] He opined that Plaintiff could lift up to 20 pounds occasionally and 10 pounds frequently; stand or walk for six hours in an eight-hour workday; sit with normal breaks for six hours in an eight-hour workday; and he had no other non-exertional limitations. [R. 58.]

3 Dr. Auerbach was designated an agency medical expert under Medical Specialty Code 12, which refers to “family or general practice.” See Program Operations Manual System (“POMS”) DI 24501.004.

On April 17, 2019, Plaintiff saw Dr. Weiner who noted that Plaintiff's severe back pain was progressively getting worse. He stated that Plaintiff had difficulties with activities of daily living and limited range of lumbar motion. He opined that Plaintiff was disabled and unable to 13 work. [R. 965.] An April 30, 2019 MRI of the lumbar spine showed disc bulging at ¶ 2/3, L4/5, and L5/S1. [R. 845.] Plaintiff followed with Dr. Weiner after the MRI. He noted that Plaintiff had limited cervical and left shoulder range of motion, persistent headaches secondary to his brain aneurysm, and difficulty concentrating. [R. 964.]

On June 12, 2019, Dr. Justin Porto conducted a consultative internal medicine examination on behalf of the agency. [R. 824-828.] Plaintiff reported his history of sarcoidosis, cardiopulmonary issues, and his brain aneurysm. [R. 824-25.] Plaintiff stated that he did not use any drugs, alcohol, or tobacco. At the time, he lived with his wife and kids. He stated that he did not cook, clean, or wash clothes, and he relied on his wife to complete those chores. Plaintiff shopped twice a week. He was able to dress and shower daily and would watch television and go out for walks and to his appointments. [R. 825.]

Plaintiff was 180 pounds at the time of the examination. [R. 825.] His blood pressure was 160/84, and Dr. Porto recommended that Plaintiff follow with his primary care provider due to his brain aneurysm. Plaintiff's vision was unimpaired. He was not in any acute distress. Plaintiff had a normal gait and could walk on heels and toes without difficulty. He could fully squat, and his stance was normal. He did not use any assitive devices and needed no help changing for the examination, getting on or off of the examination table, or rising from a chair. Plaintiff's skin, lymph nodes, head, face, eyes, ears, nose, and throat were normal. The examination of Plaintiff's chest and lungs revelaed no significant abnormalities. Plaintiff's heart rhythm was normal, but Dr. Porto detected a PMI in the left 5^th intercostal space at the midclavicular line with no murmur, gallop, or rub. Plaintiff's abdomen was normal. [R. 826.]

Plaintiff's musculoskeletal examination was normal, and he had full strength and range of 14 motion in all areas without abnormalities. Plaintiff's neurological examination was normal in the upper and lower extremities with no sensory deficit and full strength. There were no abnormalities in Plaintiff's extremities, and he had full hand and finger dexterity with full grip strength. [R. 827.] A pulmonary function analysis performed by Dr. Timothy Collins and taken with the consultative examination showed that Plaintiff's vital capacity was moderately reduced by 63%, and that Plaintiff's diffusing capacity was mildly reduced. [R. 827, referring to R. 829-35.] Dr. Porto assessed sarcoidosis and brain aneurysm with a fair prognosis. [R. 827.] He opined that Plaintiff should avoid smoke, dust, and other known respiratory irritants. He did not opine as to Plaintiff's ability to walk, lift, carry, sit, stand, or perform other extertional activities, nor did Dr. Porto opine on Plaintiff's ability to perform activities requiring fine motor control, like fingering and typing. [R. 827.]

On June 26, 2019, Dr. Weiner reported that Plaintiff experienced frequent hand numbness and started to lose dexterity. He noted prior diagnoses of degenerative disc disease in the cervical spine and possible radiculopathy. A physical examination showed pain in the lumbar spine and limited motion. [R. 962.] When he started the CPAP machine, he began to develop abnormal movements in his legs at night. Dr. Weiner recommended that Plaintiff undergo a nerve conduction study to assess cervical radiculopathy. [R. 963.]

Plaintiff underwent the nerve conduction study on July 10, 2019. It revealed right C5/C6 and C6/C7 radiculopathy as well as mild right carpal tunnel syndrome. [R. 848-49.] A July 30, 2019 MRI of the cervical spine revealed multilevel disc disease at ¶ 2/C3, C3/C4, C4/C5, and C6/C7. [R. 852-53.] Plaintiff followed with Dr. Jane Rosenfeld on July 30, 2019, at which time a general physical examination was normal. Dr. Rosenfeld assessed rhinitis and ordered a CT 15 scan of the chest. [R. 908-09.] Plaintiff underwent a CT scan on August 1, 2019, which, as compared to the scan from July 23, 2018, showed no change in the pulmonary nodules and no change in appearance of the liver. [R. 854.]

On August 7, 2019, Dr. Weiner noted that Plaintiff had limited cervical range of movement, parasthesias in his right arm, and limited lumbar range of motion. [R. 961.] An August 18, 2019 x-ray of Plaintiff's right foot showed calcification along the medial side of the head of the first metatarsal bone. [R. 855.] On August 18, 2019, Dr. Sunderram followed with Plaintiff and noted diagnoses of sleep apnea, a circadian rhythm disorder, and uncontrolled limb movement. [R. 896-900.] On August 29, 2019, Plaintiff met with Dr. Vinod Rustgl for a liver examination. [R. 893-95.] A general physical examination was normal. [R. 893-94.] Dr. Rustgl assessed sarcoidosis with hepatic calcifications, based on CT imaging showing stable coarse calcifications worse in the right lobe, and GERD. [R. 894.]

Plaintiff followed with Dr. Weiner on September 11, 2019. Dr. Weiner noted that Plaintiff had limited cervical range of motion with tenderness to palpation in his paraspinal muscles, triggers in his shoulders, pain, and limited lumbar range of motion. [R. 960.] A September 16, 2019 pulmonary functioning test was normal, and Dr. El Zarif recommended clinical correlation. [R. 856.] A September 25, 2019 chest CT scan showed liver calcifications and volume loss consistent with prior studies from April 2015 and August 2019, but progressive enhancement of the areas of calcification suggested granulomatous disease. [R. 860-61.]

An October 4, 2019 physical examination revealed restrictions in Plaintiff's cervical spine movement, pain and tenderness with lumbar movement, and absent Achilles reflexes. Plaintiff was assessed with cervical spondylosis with radiculopathy and lumbar spondylosis. [R. 16 946-50.] On October 16, 2019, Dr. Weiner conducted a physical examination which showed limited range of cervical spine motion and pain in all extremities. He opined that Plaintiff was totally disabled. [R. 959.] On October 25, 2019, Dr. Hirsch opined that Plaintiff's sarcoidosis was slowly progressing. A physical examination was normal. He assessed sarcoidosis of the lung, hepatic granuloma, sleep apnea, asthma, periodic limb movements while sleeping, and hypertension. [R. 866-68.]

Plaintiff followed with Dr. Sunderram on November 11, 2019 for sleep issues, who again assessed sleep apnea, limb movement, and sarcoidosis. [R. 887-90.] On November 20, 2019, Dr. Scardella noted that Plaintiff's cough was present and continued, and that Plaintiff had been experiencing chest spasms requiring the use of his rescue inhaler. He noted that Plaintiff's pulmonary function test from September 2019 was within normal limited. [R. 884.] Plaintiff's physical examination was normal. Plaintiff's breathing was unlabored, he had normal chest expansion and air entry, and his breath sounds normal. Dr. Scardella opined that Plaintiff's sarcoidosis of the lung was clinically stable. [R. 885.]

On December 4, 2019, Plaintiff met with Dr. Weiner while he waited for biopsy results. Plaintiff continued experiencing shortness of breath, trouble breathing, severe sinusitis, multiple joint pain, and difficulties with activities of daily living. He recommended that Plaintiff continue his exercise program and opined that Plaintiff was totally disabled. [R. 958.] Dr. Yigal Samocha examined Plaintiff on December 20, 2019. [R. 942-45.] Plaintiff was pleasant and in no acute distress. Plaintiff's gait was normal. Plaintiff had restrictions in cervical spine movement. He had mild pain with lumbar movement with generalized tenderness and palpation throughout the parapsinal muscles. Straight leg raising tests were negative. He had full strength and sensation 17 throughout his upper extremities and normal strength. His reflexes were normal except for absent bilateral Achilles reflexes. Dr. Samocha noted the EMG study showing radiculopathy. [R. 944.] He assessed cervical spondylosis with radiculopathy and lumbar spondylosis. [R. 945.]

Dr. Weiner completed a Patient Functional Assessment to do Sedentary Work on December 27, 2019. [R. 953-54.] Dr. Weiner noted that he had been treating Plaintiff from March, 31, 2014 through the present. He opined that Plaintiff could stand and/or walk for less than one hour per day, sit less than two hours per day, and lift and/or carry less than five pounds for up to a third of an eight-hour workday. He opined that Plaintiff could reach overhead, forward, and laterally with either extremity only up to a third of an eight-hour workday, and that he could handle, finger, and feel for only up to a third of an eight-hour workday. [R. 953.]

Dr. Weiner opined that Plaintiff would need to lie down during the workday, required a sit/stand option, would require frequent breaks, would have difficulty concentrating on his work, and would require more than two sick days each months. Dr. Werner noted that Plaintiff suffered severe pain which would prevent him from performing eight hours of work, required medications that interfere with his ability to function, and that Plaintiff had environmental restrictions due to limitations or sensitivity. [R. 954.]

Dr. Weiner completed an updated narrative on January 2, 2020 assessing Plaintiff's ability to perform work-related functions. [R. 954-57.] Dr. Weiner noted that Plaintiff was a police officer and retired “secondary to his sarcoidosis.” [R. 954.] He noted Plaintiff's pain, constant cough, brain aneurysm, difficulty talking, photophobia, asthma, GERD, chronic sinusitis, and sleep apnea. Plaintiff's right foot pain caused difficulty standing and sitting and 18 was secondary to calcifications. He was diagnosed with right carpal tunnel syndrome, and he had pain in his left hand causing him to drop objects during activities. Plaintiff had lower back and knee pain, which prevented him from sitting or standing for prolonged periods of time. His wife helped him with activities of daily living. He also had neck pain that radiated to his arms, possibly requiring a cervical disc replacement and fusion. These medical issues caused Plaintiff to become agitated, which caused issues with socialization. [R. 954.]

In the same report, Dr. Weiner reported the results of a December 11, 2019 physical examination which showed limited range of motion of the cervical spine, and full range of motion in the shoulders, elbows, wrists, and hands. However, Plaintiff has parasthesias in both hands, had a positive Tinsel sign on the right, reduced hand strength, pain along his joints, and a positive Finkelstein sign on the left, and increased pain with wrist extension on his left side. Plaintiff had pain along the thoracic spine and limited lumbar range of motion. Plaintiff had knee pain and limited quadricep and hamstring strength, pain in his right foot, could not heel-to-toe walk due to pain, and had a hip hike causing increased discomfort in the left hip. [R. 955.]

Dr. Weiner assessed sarcoidosis, chronic cough, asthma, and GERD. He stated that Plaintiff would become short of breath during ambulation and would experience difficulty breathing. He could walk no more than 50 feet before stopping. Plaintiff's sleep apnea required a CPAP machine, and Plaintiff would wake up during the night due to difficulty using it. Dr. Weiner also assessed metatarsaliga, carpal tunnel syndrome, internal derangement of the right knee, internal derangement of the left hip, lumbar radiculopathy, cervical radiculopathy, hypertension, brain aneurysm, photophobia, and headaches. Dr. Weiner opined that Plaintiff was totally disabled from all forms of employment including sedentary work. [R. 956.] In a 19 subsequent examination on January 22, 2020, Dr. Weiner noted limited range of motion of the cervical spine, for which Plaintiff had agreed to undergo epidural injections. [R. 969-70.]

C. Testimonial Evidence

1. Adult Functional Assessment

Plaintiff completed a functional assessment for adults on February 9, 2019. [R. 209-16; repeated at R. 219-26.] He stated that during the day, after waking up and while his kids were at school, he would generally sleep or watch television due to lack of energy. He required a rescue inhaler throughout the day and used a heating pad on his back as needed. He would attend appointments if scheduled and would try to exercise by walking or using light weights, making sure not to strain himself. [R. 209-10.] Plaintiff's wife was the primary caregiver and that she did most of the cooking, cleaning, and laundry, as well as take care of the children and pets. [R. 210.] Plaintiff stated that he could no longer help his wife due to tightening in his chest and coughing fits, he had difficulty walking properly and standing for periods of time, and he could no longer run around with his children and dogs because of his impairments. [R. 210.]

Plaintiff required a CPAP machine when sleeping. He stated that he would experience trouble falling and staying asleep, would sometimes wake up gasping for air, had trouble getting out of bed, and would be tired throughout the day. He had difficulty dressing and would need to lean again something in order to dress. He also had difficulty bathing and would experience coughing fits during and immediately after showering. [R. 210.] Plaintiff's wife generally prepared meals, and Plaintiff would experience coughing fits if he was around steam or moisture. He also needed to stay away from acidic foods. [R. 211.] Plaintiff would sometimes help with dishes, vacuuming, and taking out the trash, but his wife performed a majority of the chores, and 20 Plaintiff had hired others to perform work. [R. 211-12.] Plaintiff was limited from doing housework and yard work due to pain, chest tightness, and coughing fits. [R. 212.]

Plaintiff stated that he would try to go outside daily and that he could drive and ride in a car. He was able to shop in stores and by computer, and would typically shop twice a week for an hour each time. [R. 212.] Plaintiff could count change, pay bills, and handle money. Plaintiff stated that because of his impairments, he could no longer play sports, and his exercise was limited to walking in place and lifting light weights. [R. 213.] Plaintiff did not leave his home to socialize, and instead his friends would visit him at his home every few months, and he felt less social due to his impairments. [R. 213-14.]

Plaintiff's ability to lift was partly impaired due to his brain aneurysm, and as a result he could only lift light weights. He had trouble standing still, and standing for periods of time caused pain in his back and the need to move his legs and stretch. He stated he could walk up to 30 minutes in a controlled environment unless he experienced chest tightness and pain, and walking would cause soreness in his knees. He described his gait as having a “waddle” due to tightness in his back. Plaintiff could sit, but he would need to move his legs to alleviate soreness in his knees, and he had difficulty standing up due to his back and knees. He had difficulty climbing stairs due to his knees. Kneeling and squatting caused him pain. [R. 214.] He had difficulty talking due to pain in his throat. Plaintiff stated he would be able to walk less on a dry or humid day. [R. 215.] He stated he could follow written and spoken instructions, but his impairments caused stress, trouble sleeping, and the need to constantly move. Plaintiff also described having a constant pain on his right side near his lung and liver area, that activity increased his pain, he experienced chest tightness and shortness of breath without warning, and 21 he constantly felt tired. [R. 216.]

2. Plaintiff's Testimony

Plaintiff testified at a hearing before the ALJ on January 31, 2020, where he was represented by counsel. [R. 31-51.] Plaintiff was 48 years old at the time of the hearing. He was married and lived with his wife and two children who were 14 and 16 years old at the time. [R. 36.] Plaintiff had a driver's license and could drive. He had finished high school and had some college education. [R. 37.] At the time of the hearing, Plaintiff had retired from his job as a police officer with the New York Police Department. He began working on February 28, 1994, and he retired on March 31, 2014. He was promoted to sergeant in 2003. Plaintiff stated that his retirement was “straight” as opposed to disability retirement. [R. 37.]

Plaintiff testified that his sarcoidosis affected his breathing and caused shortness of breath when performing basic tasks like raising his voice, walking to the mailbox, or climbing a set of stairs. He testified that it was difficult for him to go up and down stairs. Plaintiff also had sleep apnea, which was related to asthma caused by Plaintiff's relief efforts after the World Trade Center attacks. [R. 38.] Plaintiff's doctors were monitoring his intracranial brain aneurysm, which could be exacerbated by stress, lifting objects, and any sort of duress. [R. 38-39.] Plaintiff discussed possibly having neck surgery for a C6/C7 implant, and for the time he had been receiving epidural injections to treat that area. At the time, Plaintiff had been undergoing physical therapy for his neck and back, which he stated had not helped. He found it difficult to lift two pounds. [R. 39.]

Plaintiff reported no mental or psychological issues for which he had been treated, and he testified that he had no problems with drug use or alcoholism. [R. 39.] Plaintiff testified that he 22 could walk about 40 feet before feeling symptoms including losing his breath or spasms in his chest or throat. [R. 39-40.] Plaintiff never smoked and never drank alcohol. At this point in the hearing, Plaintiff asked if he could change positions and stand up, and the ALJ allowed Plaintiff to stand if he needed. Plaintiff explained that it was hard for him to sit for more than 15 minutes, and that his legs would move uncontrollably. [R. 40.]

Plaintiff had difficulty carrying objects because his lands would lock or freeze. [R. 40.] Plaintiff's doctor believed that could have been related to issues with his neck or carpal tunnel syndrome. [R. 40-41.] Plaintiff was able to lift his hands up. He stated that his back would “go out” about once a week, which prevented him from being able to bathe, dress, and toilet himself. Plaintiff required a shower bench to sit while showering. He needed to lean against something in order to dress himself. Plaintiff testified that he generally relied on his wife for daily activities. [R. 41.] Plaintiff could help with dishes from the top rack of the dishwasher, and he would try to help with vacuuming but would start coughing. Plaintiff testified that he did not have a social life and did not play sports with his kids. Plaintiff testified that his sleep apnea caused daytime fatigue, which made it difficult to stay awake during the day. [R. 42.] Plaintiff stated that because of his periodic limb movement disorder, he was prescribed Gabapentin, an anti-convulsion medicine that helped reduce involuntary movement. [R. 42-43.] Plaintiff's limb movement disorder also prevented him from sleeping. [R. 43.]

3. Vocational Expert Testimony

Gary Young, a vocational expert, also testified before the ALJ at the January 31, 2020 hearing. [R. 43-49; vocational expert's curriculum vitae at R. 268-70.] Mr. Young defined Plaintiff's past relevant work within the Dictionary of Occupational Titles (“DOT”) as a precinct 23 I police sergeant under DOT code 375.133-010 as a skilled job performed at light exertion, and a police officer I under DOT code 375.263-014 as a skilled job performed at medium exertion. [R. 45.] Mr. Young described Plaintiff's past relevant work as a composite job between the two listings and testified that, based on Plaintiff's testimony, Mr. Gray would consider Plaintiff's past work closer to that of a police officer than a “paperwork police sergeant.” [R. 45-46.]

The ALJ asked Mr. Young to consider a hypothetical individual with Plaintiff's age, education and work history who could perform the full range of light exertional work, but with the following limitations: the individual could only occasionally climb ramps and stairs; could never climb ropes, ladders, or scaffolds; could only occasionally stoop, balance, crouch, kneel, and craw; could not be exposed to unprotected heights or hazardous machinery; and must avoid exposure to respiratory irritants and poorly ventilated areas. Mr. Young testified that this individual could not perform Plaintiff's past work, but could perform other jobs in the national economy that were unskilled and required light exertion including: office helper, DOT code 239.567-010; cashier, DOT code 211.462-010; and inspector, DOT code 529.687-114.⁴ [R. 46.]

4 This position is listed as “inspector (sugar & conf.) as someone who “[i]nspects candy or chewing gum in containers or on conveyor to ensure that it is formed, coated, cupped, wrapped, or packed according to plant standards.” See DOT code 529.687-114.

The ALJ asked Mr. Young a second hypothetical with the above limitations, except that the individual could only perform sedentary work, and the individual would be allowed to alternate between sitting and standing at will provided the person is not off task ore than five percent of the day. [R. 46-47.] Mr. Young testified that that individual could not perform Plaintiff's past work, but could perform the following sedentary jobs in the national economy: 24 order clerk, DOT code 209.567-014;⁵ inspector, DOT code 669.687-014;⁶ and “assembly positions, ” DOT code 732.684-062.⁷ [R. 47.]

5 This position is listed as “order clerk, food and beverage (hotel & rest.)” as someone who “[t]akes food and beverage orders over telephone or intercom system and records order on ticket.” See DOT code 209.567-014.

6 This position is listed as “dowel inspector (woodworking) as someone who “[i]nspects dowel pins for flaws, such as square ends, knots, or splits, and discards defective dowels.” See DOT code 669.687-014.

7 This position is listed as “fishing-reel assembler (toy-sort equip.)” as someone who “[a]ssembles fishing reels.” See DOT code 732.684-062.

The ALJ gave Mr. Young a third hypothetical to consider someone of Plaintiff's age, education, and work history who could perform the full range of sedentary work with the following limitations: the individual could stand and walk for less than one hour in an eight-hour work day, could sit for less than two hours in an eight-hour workday, and could lift and carry less than five pounds occasionally. The individual could occasionally climb ramps and stairs; could never climb ropes, ladders, or scaffolds; could only occasionally stoop, balance, crouch, kneel, and crawl; could not be exposed to unprotected heights or hazardous machinery; must avoid exposure to respiratory irritants and poorly ventilated areas; and must be allowed to alternate standing at will, provided the individual would not be off task more than five percent of the day; and the individual would be off-task 15 percent of the workday in addition to regularly scheduled breaks and absent twice a month. [R. 47-48.] Mr. Young testified that this individual would not be able to perform any work in the national economy. [R. 48.] He also testified that if the off-task and absentee limitations were added to the first two hypotheticals, that those individuals would not be able to perform work in the national economy. [R. 49.] 25

III. LEGAL STANDARD

A. Standard of Review

In reviewing a decision of the Commissioner, a 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 U.S.C. § 405(g). “It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.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 v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).

The substantial evidence standard is even more deferential than the “clearly erroneous” standard. Brault v. Social Sec. Admin, 683 F.3d 443, 448 (2d Cir. 2012). The reviewing court must defer to the Commissioner's factual findings, and the Commissioner's findings of fact are considered conclusive if they are supported by substantial evidence. See 42 U.S.C. § 405(g). “Substantial 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. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (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, 697 F.3d 145, 151 (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 26 ALJ's rationale is unclear in light of the record evidence, remand to the Commissioner “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).

Pursuant to the fourth sentence of 42 U.S.C. § 405(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 a rehearing.” 42 U.S.C. § 405(g) (made applicable to Title XVI by 42 U.S.C. § 1383(c)(3)); Shalala v. 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 42 U.S.C. § 405(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, 501 U.S. 89, 98 (U.S. 1991); see Rosa v. Callahan, 168 F.3d 72, 82-83 (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 . . . .” 42 U.S.C. § 423(d)(1)(A). In addition, a person is eligible for disability benefits under the Social Security Act only if:

his physical or 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

27

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(d)(2)(A).

A claimant's eligibility for SSA disability benefits is evaluated pursuant to a five-step sequential analysis:

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

2. If not, the Commissioner considers whether the claimant has a “severe 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 “listed” 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 Soc. Sec., 994 F.Supp.2d 496, 503 (S.D.N.Y. 2014); see 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). The claimant bears the burden of proof as to the first four steps of the process. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (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 fifth and final step. See Id. At the fifth step, the Commissioner must prove that the claimant is capable of obtaining substantial gainful employment in the national economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 28 20 C.F.R. § 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, 198 F.3d 45, 52 (2d Cir. 1999) (quoting Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, *2 (July 2, 1996)). When assessing a claimant's RFC, an ALJ is obligated to consider medical opinions on a claimant's functioning based on an assessment of the record as a whole. 20 C.F.R. §§ 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 Commissioner's role to weigh medical opinion evidence and to resolve conflicts in that evidence. See Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”).

C. Weighing the Medical Evidence

On January 18, 2017, the Commissioner published the “Revisions to Rules Regarding the Evaluation of Medical Evidence, ” effective March 27, 2017. 82 FR 5844-01, 2017 WL 168819 (Jan. 17, 2017). The Revisions altered certain longstanding rules for evaluating medical opinion evidence for cases filed after March 27, 2017. Id. at *5844. “Under the new regulations, a treating doctor's opinion is no longer entitled to a presumption of controlling weight.” Prieto v. Comm'r of Soc. Sec., Case No. 20 Civ. 3941, 2021 WL 3475626, at *8 (S.D.N.Y. Aug. 6, 2021). Instead, all medical opinions must be evaluated for their persuasiveness based on: (1) supportability; (2) consistency; (3) the medical source's relationship with the claimant; (4) the medical source's specialization; and (5) other relevant factors. 20 C.F.R. §§ 404.1520c(a)-(c). 29

“When evaluating the persuasiveness of a medical opinion, the most important factors are supportability and consistency.” Jacqueline L. v. Comm'r of Soc. Sec., 515 F.Supp.3d 2, 7 (W.D.N.Y. 2021). As to supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical findings(s), the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). As for consistency, “[t]he more consistent a medical opinion(s) or prior administrative finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id. at § 404.1520c(c)(2).

“An ALJ must not only consider supportability and consistency in evaluating medical source opinions but also must explain the analysis of those factors in the decision.” Prieto, 2021 WL 3475626, at *9. See 20 C.F.R. § 404.1520c(b)(2). Further, in most instances, an ALJ “must consider, but need not explicitly discuss, the three remaining factors in determining the persuasiveness of a medical sources's opinion.” Amber H., Case No. 20 Civ. 490, 2021 WL 2076219, at *5 (N.D.N.Y. May 24, 2021). However, “where the ALJ has found two or more medical opinions to be equally well supported and consistent with the record, but not exactly the same, the ALJ must articulate how he or she considered those factors contained in paragraphs (c)(3) through (c)(5). See 20 C.F.R. § 404.1520c(b)(3).

IV. DISCUSSION

A. The ALJ's Decision 30

At the first step of the sequential analysis, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since March 31, 2014, Plaintiff's alleged disability onset date. [R. 12.] At the second step, the ALJ determined that Plaintiff had the following severe impairments: sarcoidosis with liver calcifications; asthma; a brain aneurysm; obstructive sleep apnea; degenerative changes of the knees with chondromalacia; and degenerative disc disease and radiculopathy of the lumbar and cervical spine. The ALJ noted Plaintiff's hypertension, GERD, chronic rhinitis, tubular adenoma of colon, mild right carpal tunnel syndrome, and periodic limb movement disorder, but found that these conditions were not “severe” within the meaning of the Act. [R. 12-13.] At the third step, the ALJ found that Plaintiff's impairments did not meet or medically equal the severity of one of the listed impairments in the Adult Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 13.]

Next, the ALJ assessed Plaintiff's RFC and determined that Plaintiff could perform sedentary work as defined under 20 C.F.R. § 404.1567(a), with the additional limitations that Plaintiff could only occasionally climb ramps and stairs; could never climb ropes, ladders, or scaffolds; and could only occasionally stoop, balance, crouch, kneel, and crawl. The ALJ also found that Plaintiff could have no exposure to unprotected heights or hazardous machinery and must avoid exposure to respiratory irritants such as fumes, odors, dust, gases, and poorly ventilated areas. Plaintiff also required a position where he could alternative sitting and standing, providing that he would not be off task for more than 5 percent per day while switching positions. [R. 13-20.]

Based on this RFC, the ALJ proceeded to the fourth step and found that Plaintiff was unable to perform his past relevant work as a precinct police sergeant. [R. 20-21.] At the fifth 31 step, the ALJ found that the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, did not apply because Plaintiff's ability to perform substantially all of the requirements of sedentary work had been impeded by additional limitations. As a result, the ALJ relied on testimony from a vocational expert and found that Plaintiff could perform work in the national economy as an order clerk, inspector, and “assembly”, all of which were sedentary, unskilled jobs. [R. 21-22.] Accordingly, the ALJ found that Plaintiff was not disabled within the meaning of the Act. [R. 22.]

B. The RFC Is Not Supported by Substantial Evidence

The RFC determination is not supported by substantial evidence, and the ALJ failed to properly identify substantial evidence to support his finding. The RFC assesses an individual's ability to perform work-related physical and mental activities “in a work setting” and on a “regular and continuing basis, ” defined as 8 hours a day and five days a week, “or an equivalent work schedule.” Social Security Ruling (“SSR”) 96-8P, 1996 WL 374184, at *1 (July 2, 1996).

The Commissioner's regulations state that sedentary work requires the ability to lift a total of 10 pounds and the ability to sit but also stand or walk occasionally:

Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

20 C.F.R. § 404.1567(a). The Social Security Rulings clarify that sedentary jobs also require the ability to stand or walk generally for two hours in an eight-hour workday and sit for the remaining six hours, as well as perform certain nonexertional activities: 32

Although a sedentary job is defined as one that involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. “Occasionally” means occurring from very little up to one- third of the time, and would generally total no more than about 2 hours of an 8-hour workday. Sitting would generally total about 6 hours of an 8-hour workday. Unskilled sedentary work also involves other activities, classified as “nonexertional, ” such as capacities for seeing, manipulation, and understanding, remembering, and carrying out simple instructions.

SSR 96-9P, 1996 WL 374185, at *3 (July 2, 1996). Unskilled sedentary jobs also require additional manipulative capabilities:

Most unskilled sedentary jobs require good use of both hands and the fingers; i.e., bilateral manual dexterity. Fine movements of small objects require use of the fingers; e.g., to pick or pinch. Most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions.

SSR 96-9P, 1996 WL 374185, at *8. Moreover, being off-task 15 percent of a workday in addition to regularly scheduled breaks, and being absent two or more times per month would preclude an individual from working a sedentary job in the national economy. [see vocational expert's testimony at R. 48-49.]

Here, the ALJ determined that Plaintiff could perform the full range of sedentary work, but limited Plaintiff in his ability to perform certain postural activities, as well as Plaintiff's ability to be exposed to certain environmental hazards and respiratory irritants. [R. 13-14.] The ALJ also limited his finding to unskilled jobs in the national economy. [R. 22]; see SSR 00-4P (“unskilled work corresponds to SVP of 1-2"). These findings are unsupported.

First, substantial evidence does not support the ALJ's exertional findings that Plaintiff could lift up to 10 pounds, sit for up to six hours, and stand or walk for up to two hours in an eight-hour workday. The medical evidence confirmed through laboratory testing that Plaintiff 33 suffered physical and neurological symptoms including radiculopathy, joint degeneration, disc bulges, nerve damage, and calcifications throughout Plaintiff's organs and feet. [see nerve conduction studies showing nerve damage and radiculopathy at R. 850-51, 848-49, and 944; imaging showing calcification at R. 332-37, 438, 682-83, 791-33, 839-42, 855, 860-61, 894.] Medical examinations as late as 2019 also showed decreased range of motion. [R. 960.] Based on these findings, Dr. Weiner, who provided the only medical opinion from a treating provider on Plaintiff's functional capabilities, opined that Plaintiff could lift no more than five pounds, sit for less than two hours, and stand or walk for less than one hour per day. [R. 953.] The ALJ did not identify any other medical record or any non-medical evidence demonstrating Plaintiff's ability to meet these exertional requirements, apart from an opinion from the agency medical consultant, Dr. Auerbach, which does not constitute substantial evidence for the reasons discussed below.

Second, the ALJ failed to identify substantial evidence to support the elevated manipulative and dexterity requirements for unskilled sedentary work. Plaintiff's radiculopathy and carpal tunnel syndrome were diagnosed based on medical imagining including nerve conduction studies and MRIs. [R. 848-49, 956.] As a result, Plaintiff testified that he was unable to grasp objects due to pain and numbness. [R. 38-39.] Dr. Weiner similarly stated that Plaintiff's carpal tunnel syndrome and hand pain caused him to drop objects during activities, showing impairments to Plaintiff's manipulative capabilities. [R. 954.] The ALJ failed to identify evidence to the contrary.

Third, substantial evidence does not support the ALJ's finding that Plaintiff could adequately maintain concentration and stay on-task enough to perform sedentary work on a 34 sustained basis. The only piece of medical evidence on this issue came from Dr. Weiner's medical assessment, who opined that Plaintiff would have difficulty concentrating on his work due to his impairments. [R. 954.] The medical evidence also demonstrated that Plaintiff had significant issues with sleeping at night and staying awake during the day due his sleep apnea and the circadian rhythm disorder, which would suggest additional difficulties concentrating during the day. [R. 382-87, 893-94, 914.] The record did not contain medical or non-medical evidence to the contrary, meaning there was no evidence, substantial or otherwise, to support the ALJ's findings that Plaintiff could concentrate on a sustained basis.

To support the RFC, the ALJ relied on cherry-picked evidence, inaccurately described. First, the ALJ exaggerated Plaintiff's activities of daily living. The ALJ first alluded to the fact that Plaintiff could dress and wash himself, which by itself does not support the ability to perform sedentary work. [R. 14-15.] Even so, Plaintiff stated he had difficulty dressing and washing himself, that he could not stand while showering, and that he needed to sit or lean on furniture while putting his clothes on, all of which suggest impairments beyond the ability to perform sedentary work. [R. 41.] The ALJ also stated that Plaintiff could perform housework, which was not actually the case. Plaintiff stated that he could not perform housework and relied on his wife to do so on a daily basis, or hired others to perform the work. [R. 41, 211-12.]

Next, the ALJ stated that Plaintiff could run up stairs and had “excellent exercise capacity, ” but these statements were taken out of context. The ALJ refers to a January 16, 2019 report from Dr. Weerackody, who referred to a stress test as showing “excellent exercise capacity.” [R. 550.] The only stress test in the record took place on March 6, 2014, before Plaintiff's disability onset date. [R. 729-30.] Thus, this record does not support the ALJ's 35 finding that Plaintiff could work on a sustained basis after his disability onset date.

The ALJ relied on Plaintiff's statement that he could drive, and the ALJ discussed at length how driving demonstrates “a good degree of concentration and persistence, ” and “the ability to use hand and good controls, an ability to turn one's head...and to sit for a continuous period of time.” [R. 15.] The ALJ overstates Plaintiff's testimony and the inferences that could fairly be drawn. Plaintiff stated at the hearing was that he had a driver's license and could drive. [R. 37.] Plaintiff also checked off boxes in his functional assessment that he could drive and ride in a car. [R. 212.] Plaintiff did not actually state that he drove, nor did he attest that he could do so on a “regular and sustained basis.” As stated, sedentary work requires the ability to perform exertional, nonexertional, and manipulative tasks on a regular and sustained basis for five days a week, eight hours a day. The ability to drive does not demonstrate the ability to perform these tasks on a sustained basis. The record does not show that Plaintiff was, in fact, able to sit in and operate a car for five days a week and eight hours a day, as would be required for sedentary work. The ALJ's inference also contradicts the other evidence in the record concerning Plaintiff's carpal tunnel syndrome, uncontrollable leg movements, and radiculopathy, indicating limitations to these abilities.

The ALJ reviewed the medical chronology and relied on Plaintiff's physical examination findings, which he described as “benign, ” showing that “his condition was stable.” [R. 15.] Here again, the ALJ overstates the medical evidence. The physical examinations earlier in Plaintiff's medical history were indeed benign, but these examinations were limited to breath, heart, and abdominal sounds, visual examinations of Plaintiff's eyes, ears, throat, and skin, and a basic inspection of Plaintiff's appearance. [R. 328, 346-47, 370, 380, 391, 394-35, 398, 417, 36 439, 451, 585, 918.] They did not shed any light on Plaintiff's ability to perform the required work-related activities for sedentary work. On the other hand, Plaintiff's later examinations revealed pain and tenderness in Plaintiff's back and neck with movement, diminished range of motion, and diminished reflexes. [R. 946-50, 955.] These findings were not “benign” as the ALJ described and showed that Plaintiff's capabilities are less than those required for sedentary work. The ALJ essentially cherry-picked the earlier records but ignored the later examinations, which he is not entitled to do. Annabi v. Berryhill, Case No. 16 Civ. 9057 (BCM), 2018 WL 1609271, at *16 (S.D.N.Y. Mar. 30, 2018) (“[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).

In the same vein, the ALJ's statement that Plaintiff's “condition is stable” is also exaggerated. [R. 15.] Indeed, there are a few places in the record where Plaintiff's liver abnormalities were described as “stable.” [R. 366-67, 338, 885, 962.] However, medical “stability” is not indicative of functionality and merely shows that a medical condition is not becoming worse. See, e.g., Kohler v. Astrue, 546 F.3d 260, 268 (2d Cir. 2008). In Kohler, then-Judge Sotomayor explained that “the ALJ consistently interprets reports that Kohler's condition has been ‘stable' to mean that Kohler's condition has been good, when the term could mean only that her condition has not changed, and she could be stable at a low functional level.” Id. at 268. Despite the consistently “stable” examinations in Kohler, the Second Circuit vacated the district court's decision and remanded the matter to the agency for further proceedings. Id. at 269. Similarly, Plaintiff's “stable” examinations do not indicate the level of functionality presumed by the ALJ. Instead, Dr. Weiner explained that Plaintiff's level of functionality was well below the 37 requirements of sustained sedentary work, despite Plaintiff's conditions being clinically stable. [R. 954-57.] Thus, Plaintiff's “stable” examinations do not support the ALJ's RFC determination.

Next, the ALJ stated that Plaintiff “betrayed no evidence of debilitating symptoms while testifying at the hearing, ” and that the “apparent lack of debilitating symptoms during the hearing is a permissible factor to consider. . . in determining the claimant's allegations and his residual functional capacity.” [R. 15.] This mode of analysis, known as the “sit and squirm” test, has been discredited and emphatically rejected in this Circuit. See, e.g., Brown v. Comm'r of Soc. Sec., Case No. 06 Civ. 3174 (ENV)(MDG), 2011 WL 1004696, at *5 (E.D.N.Y. Mar. 18, 2011) (citing Aubeuf v. Schweiker, 649 F.2d 107, 113 (2d Cir. 1981) (other citations omitted)) (“The ‘sit and squirm' test has been rejected by the Second Circuit as impermissible, and observations by the ALJ of any sort shall be accorded only limited weight, ‘since the ALJ is not a medical expert.'”). Moreover, Plaintiff did, in fact, need to stand up and change positions during the hearing, which the ALJ acknowledged on the record. [R. 40.] Thus, even if the “sit and squirm” applied, Plaintiff failed, further demonstrating his inability to work on a sustained basis.

The ALJ also relied on Dr. Porto's consultative examination, but Dr. Porto's report does not lend support to the ALJ's physical RFC findings. [R. 18-20, referring to R. 824-28.] Despite conducting a physical examination, the only opinion Dr. Porto provided was that Plaintiff should avoid respiratory irritants; he did not provide any opinion on Plaintiff's ability to lift, carry, walk, stand, or sit, nor did he comment on Plaintiff's ability to perform fine motor functions. [R. 827.] The Second Circuit has found that where a consultative opinion is “remarkably vague, ” the ALJ's reliance on the same would amount to “sheer speculation.” 38 Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013). Here, Dr. Porto's opinion on Plaintiff's functional capabilities is beyond vague-it is silent. Indeed, his examination showed functional limitations, including a moderately reduced vital capacity function, which would suggest at least some level of limitation. [R. 827, 829-35.]

The ALJ acknowledged that Dr. Porto opined only that Plaintiff should avoid respiratory irritants, which the ALJ incorporated into the RFC. [R. 19.] The ALJ did not expressly state that Dr. Porto opined that Plaintiff had no other limitations, though the Commissioner implies otherwise in her motion. [Commissioner's Memorandum of Law, Dkt. 25 at 13.] But later in the decision, the ALJ compared Dr. Porto's report to subsequent records, stating, “records subsequent to his examination. . . support further limitations, as reflected in the residual functional capacity assessment.” [R. 20.] It appears, therefore, that the ALJ read additional findings into Dr. Porto's opinion in order to support the physical RFC. To that end, the ALJ simply assumed that Dr. Porto opined that Plaintiff had no other limitations, which the ALJ cannot do. Regardless, Dr. Porto's silence on Plaintiff's physical capabilities cannot constitute substantial evidence to demonstrate the ability to perform sedentary work.

The ALJ also relied, in part, on Dr. Auerbach's opinion. [R. 19, referring to R. 53-61.]⁸But the ALJ mischaracterized the basis for Dr. Auerbach's report, which rested on an incomplete medical record. The ALJ stated that Dr. Auerbach's findings were “based upon a thorough 39 review of the records, ” [R. 19], but Dr. Auerbach gave his opinion on April 14, 2019, based on the records he had as of that date. Dr. Auerbach did not review any of the medical records postdating his report, including the medical imaging studies in 2019 showing radiculopathy, carpal tunnel symptoms, limited range of motion, Plaintiff's multi-level disc disease, and absent reflexes, nor did Dr. Auerbach review Dr. Weiner's functional assessments. State Agency Medical Consultants' reports that are “conclusory, stale, and based on an incomplete medical record, are not substantial evidence.” Griffith v. Astrue, Case No. 08 Civ. 6004 (CJS), 2009 WL 909630, at *9 n.9 (W.D.N.Y. Mar. 31, 2009). Because Dr. Auerbach's assessment was stale and was based on an incomplete record, it cannot constitute substantial evidence.

8 The ALJ's purported reliance on Dr. Auerbach is also problematic because the ALJ did not adopt Dr. Auerbach's opinion. Dr. Auerbach opined that Plaintiff could perform the full range of light work, that is, that Plaintiff could stand or walk for up to six hours in an eight-hour work day, that Plaintiff could lift up to 20 pounds frequently, and that he could lift 10 pounds occasionally. [R. 53-61.] See 20 C.F.R. § 404.1567(b). But the ALJ ultimately limited Plaintiff to no more than sedentary work.

Finally, the ALJ recounted Plaintiff's complete medical chronology but ignored key evidence when crafting the RFC, impermissibly cherry-picking the medical evidence. [R. 16-18.] For example, the ALJ considered Plaintiff's sleep disorder, which caused daytime fatigue, but stated that it was being treated with a CPAP machine. [R. 17, 896, 899.] This is true, as far as it goes, but the records actually show that the CPAP machine disturbed Plaintiff's sleep and exacerbated his daytime fatigue, and that Plaintiff developed abnormal movements during sleep after he began using the machine. [R. 210, 956, 963.] Similarly, the ALJ acknowledged Plaintiff's well-documented diagnoses of carpal tunnel syndrome, but ignored the medical records showing his limitations in fine motor control. [R. 954.]

The ALJ's factual findings are entitled to deference only if they are made under a proper application of the law and are based on substantial evidence. Here, the ALJ misapplied legal standards and cherry-picked the evidence, so his RFC finding cannot stand.

C. The ALJ Failed to Properly Weigh The Medical Evidence 40

The ALJ acknowledged the “new rules” for weighing the medical opinion evidence [R. 19] but failed to properly apply those rules in his analysis. First, the ALJ concluded that Dr. Auerbach's opinion was persuasive. [R. 19-20.] However, the ALJ recognized that Dr. Auerbach did not review subsequent medical records documenting greater functional limitations that Dr. Auerbach's did not consider. [R. 19.] The ALJ also did not adopt Dr. Auerbach's findings as to Plaintiff's ability to walk, stand, lift, and carry, demonstrating that Dr. Auerbach's findings are not supported by nor consistent with the medical record. Thus, the ALJ did not properly apply the first two factors.

The ALJ failed to consider the third and fourth factors when assessing Dr. Auerbach's opinion. Dr. Auerbach, as a State Agency Medical Consultant, had no relationship with Plaintiff, and was merely responsible for making an initial determination as to Plaintiff's level of functioning based on the records in his possession. See SSR 17-2p, 2017 WL 3928306, at *3 (March 27, 2017). In other words, he had no opportunity to actually observe or examine Plaintiff, and his assessment was limited based on the limited record before him. In addition, Dr. Auerbach specialized in “family or general practice.” He did not specialize in any of the areas in which Plaintiff's impairments arose, a limitation which the ALJ did not acknowledge. Thus, the ALJ failed to consider the third and fourth factors when weighing Dr. Auerbach's opinion.

Second, the ALJ weighed Dr. Porto's opinion and found it “persuasive.” [R. 20.] The ALJ stated that Dr. Porto's findings were supported by his own clinical examination and consistent with other evidence of the record. But as discussed above, Dr. Porto did not give an opinion as to Plaintiff's ability to perform the work-related functions required for sedentary work. Moreover, the ALJ acknowledged that later medical evidence showed functional 41 limitations which Dr. Porto did not address. As with Dr. Auerbach, Dr. Porto did not have a relationship with Plaintiff, and the ALJ failed to consider, or even describe, Dr. Porto's area of expertise. Thus, the ALJ improperly applied the first two factors and failed to apply the third and fourth factors to Dr. Porto's opinion.

Third, the ALJ failed to correctly weigh Dr. Weiner's opinion. Dr. Weiner's detailed narrative report from January 2020 stated that Plaintiff could not meet the sitting, standing, walking, lifting, or carrying requirements required under sedentary work, and that Plaintiff's impairments diminished his concentration and ability to stay on-task. [R. 954-57.] The ALJ found Dr. Weiner's opinion “unpersuasive.” [R. 20.] In making this finding, the ALJ misapplied each of the required factors under the new rules.

With regard to supportability, the ALJ found that Dr. Weiner's opinion was conclusory and unsupported. [R. 15.] However, Dr. Weiner's opinion that Plaintiff could not lift, carry, or use his hands sufficiently to perform unskilled sedentary work was supported by the July 2019 nerve conduction study showing carpal tunnel syndrome, as well as physical examinations showing parasthesia and hand numbness. [R. 848-49, 955, 961-62.] Plaintiff's inability to lift, carry, sit, walk, and stand were supported by the same study, as well as MRIs, x-rays, and CT scans showing multilevel disc disease, radiculopathy, brain aneurysm, and joint derangement, as well as physical examinations showing impaired movement and pain. [R. 319, 837-38, 845, 848-49, 852-53, 966.] Dr. Weiner's opinion as to Plaintiff's inability to concentrate was supported by the abnormal sleep studies and the medical findings of pain and tenderness throughout Plaintiff's body. [R. 318-21, 382-87, 391, 549-51, 963, 965-67.]

With regard to consistency, the ALJ claimed that Dr. Weiner's opinion was inconsistent 42 with what the ALJ described as “relatively benign medical reports throughout the record.” [R. 20.] Here again, the ALJ cherry-picked the evidence by ignoring Plaintiff's deteriorating physical condition as documented later in his medical history. [R. 959-61, 965.] These findings were also consistent with Plaintiff's own reports of his diminished capabilities to perform activities of daily living.

Moreover, the ALJ failed to consider Dr. Weiner's relationship with Plaintiff, or his medical specialization, both factors which are especially relevant here. Plaintiff's primary complaints are cardiopulmonary and hepatoligical in nature, relating to his heart and lungs and to his liver. He also suffers from GERD, a brain aneurysm, radiculopathy, and additional unique impairments, and their effects, individually and in combination with each other, are not readily identifiable by a layperson. To that end, neither the ALJ nor the Court should venture to guess how they would affect Plaintiff without a medical expert. See Franklin v. Saul, 482 F.Supp.3d 250, 265 n.4 (S.D.N.Y. 2020) (citing Piper v. Comm'r of Soc. Sec., 2020 WL 4499530, at *2 (W.D.N.Y. Aug. 4, 2020)) (“Just as ‘an ALJ's ability to make inferences about the functional limitations caused by an impairment does not extend beyond that of an ordinary layperson,' a Court similarly cannot be expected to make inferences requiring medical knowledge in its review of an ALJ's conclusion.”).

Dr. Weiner had treated Plaintiff since March 2014, personally examined him on many occasions, and referred Plaintiff to other doctors specializing in pertinent medical fields during the course of Plaintiff's treatment. [R. 953.] He observed that Plaintiff's condition had been worsening at least as of April 2019. [R. 965.] With this background, Dr. Weiner was able to articulate the way in which each of Plaintiff's impairments affected his ability to function. In 43 addition, Dr. Weiner was in the best position to provide a longitudinal analysis how Plaintiff's ability to function had changed over time since his initial diagnoses and exposure at the World Trade Center. See, e.g., Pagan v. Apfel, 99 F.Supp.2d 407, 410 (S.D.N.Y. 2000) (internal citations omitted) (explaining that under the old rules for weighing medical opinions, treating physicians should be given controlling weight “since such persons are ‘most able to provide a detailed, longitudinal picture of [the] medical impairments(s) and may bring unique perspectives to the medical evidence that cannot be obtained from the objective medical findings alone.'”). Nevertheless, the ALJ did not mention Dr. Weiner's expertise or relationship with Plaintiff, thereby failing to properly consider the third and fourth factors of the new rules.

It is not the place for the Court to weigh the medical opinion evidence, but to analyze whether the ALJ properly applied the legal standard. Here, the ALJ's analysis of Dr. Weiner's opinion, with regard to the first two elements, was based on an incorrect reading of the record, and the ALJ failed to consider the third and fourth elements at all. Thus, the ALJ failed to properly apply the appropriate standards when considering Dr. Weiner's opinion.

V. CONCLUSION

For the reasons set forth above, I respectfully recommend that Your Honor GRANT Plaintiff's motion for judgment on the pleadings, DENY the Acting Commissioner's motion for judgment on the pleadings, and REMAND this case for further administrative proceedings pursuant to 42 U.S.C. § 405(g), sentence four. 44

NOTICE

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. See also Fed. R. Civ. P. 6(a), (b), (d). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Kenneth M. Karas, at the Honorable Charles L. Brieant, Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. Requests for extensions of time to file objections must be made to Judge Karas. 45