Spain v. Comm'r of Soc. Sec.

Full title: RUSSELL SPAIN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

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

Date published: Dec 28, 2021

20 Civ. 4837 (NSR)(JCM) (S.D.N.Y. Dec. 28, 2021)

Opinion

20 Civ. 4837 (NSR)(JCM)

12-28-2021

RUSSELL SPAIN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

To the Honorable Nelson S. Román, United States District Judge

REPORT AND RECOMMENDATION

To the Honorable Nelson S. Román, United States District Judge

Plaintiff Russell Spain (“Plaintiff”) commenced this action on June 18, 2020 pursuant to 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security (the “Commissioner”), which denied Plaintiff's application for Supplemental Security Income (“SSI”). (Docket No. 2). Presently before the Court are: (1) the Commissioner's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, (Docket No. 12), accompanied by a memorandum of law (“Comm'r Br.”), (Docket No. 13); (2) the Plaintiff's cross-motion for judgment on the pleadings and in opposition to the Commissioner's motion for judgment on the pleadings, (Docket No. 21), accompanied by a memorandum of law (“Pl. Br.”), (Docket No. 21-1); and (3) the Commissioner's reply in further support of her motion for judgment on the pleadings (“Comm'r Reply Br.”), (Docket No. 25).¹For the reasons set forth below, I respectfully recommend that the Commissioner's motion be denied, that the Plaintiff's cross-motion be granted, and that the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Report and Recommendation.

1 All citations to the parties' briefs refer to the page numbers assigned upon the electronic filing of the documents.

I. BACKGROUND

Plaintiff was born on January 2, 1972. (R.² 90). Plaintiff applied for SSI on December 28, 2015, alleging a disability onset date of July 7, 2014. (R. 109-10). Plaintiff's application was initially denied on May 26, 2016, (R. 108-22), after which he requested a hearing on June 15, 2016. (R. 125). Plaintiff appeared pro se at two hearings that were held on April 19 and June 19, 2018 before Administrative Law Judge (“ALJ”) Sommattie Ramrup. (R. 66-107; 154; 159). ALJ Ramrup issued a decision on December 18, 2018 denying Plaintiff's claim. (R. 10-19). Plaintiff requested review by the Appeals Council, which denied the request on March 26, 2020, (R. 1-6), making the ALJ's decision ripe for review.

2 Refers to the certified administrative record of proceedings relating to Plaintiff's application for social security benefits, filed in this action on December 22, 2020. (Docket No. 10). All page number citations to the certified administrative record refer to the page number assigned by the Social Security Administration (“SSA”).

A. Medical Evidence

1. Diagnostic Imaging

i. Magnetic Resonance Imaging (MRI) of the Left Knee

Plaintiff received an MRI of his left knee on April 28, 2015 at Sinai Diagnostics and Interventional Radiology, P.C. (R. 287). The MRI revealed a “meniscal tear involving the posterior horn and body of the medial meniscus”; “[a]reas of cartilage loss at the weight-bearing surface of the medial femoral condyle and the medial aspect of the tibial plateau”; and “[m]ild joint effusion, ” but “[n]o cortical fracture or ACL tear.” (Id.).

On August 23, 2016, Plaintiff got another MRI of the left knee at Urban Radiology, P.C. (R.452). The MRI showed “[m]ild soft tissue edema”; “[m]oderate-sized left knee joint effusion with synovitis”; “[m]oderate-to-severe degenerative arthritis [that is] most severe at the medial and patella femoral compartments”; “[m]edial meniscal tear”; “[c]hronic ACL sprain with mild ossification within the proximal ACL fibers”; “Grade 1 MCL and LCL sprains”; and “[s]mall osteochondral defects along the mid-to-posterior medial femoral condyle and mid-to-anteromedial tibial plateau.” (R. 453).

A third MRI of the left knee was performed on June 12, 2018 at SUNY Downstate Medical Center (“SUNY Downstate”). (R. 450-51). The MRI revealed “[m]arked patellar degeneration”; “[m]oderate medial compartment osteoarthritis”; “[d]egenerative tearing of the medial meniscus”; “[d]isplaced meniscal fragment centrally”; “[e]xtension of an atypical synovial plica into the medial compartment anteriorly”; “[w]avy contour of the anterior cruciate ligament with foci of ossifications” that may represent a previous partial tear; and “[c]hronic MCL and LCL sprains.” (R. 451).

ii. Electrodiagnostic and Sudomotor Testing

On June 1, 2015, Plaintiff underwent electrodiagnostic testing with Lazar Feygin, M.D. (“Dr. Feygin”). (R. 305). Dr. Feygin found that all nerve conduction studies, F wave latencies and H reflex latencies were within normal limits. (Id.). The study revealed evidence of right L4-L5 radiculopathy. (Id.). That same day, Plaintiff also underwent sudomotor testing, which showed “mild microcirculation dysfunction disorder” only in the left hand. (R. 323).

iii. MRI of the Lumbar Spine

Plaintiff received an MRI of his lumbar spine on June 5, 2015 at Urban Radiology, P.C. (R. 289). The MRI showed “a small posterior midline herniation into the epidural fat without thecal sac impingement” at ¶ 4-L5, “a posterior bulge into epidural fat without thecal sac impingement” at ¶ 5-S1, and “intracanalicular epidural lipomatosis.” (Id.).

On June 13, 2016, Plaintiff received another MRI of his lumbar spine. (R. 385). This MRI revealed a posterior herniation at ¶ 4-L5 and a bulge at ¶ 5-S1 “similar to that previously documented.” (Id.).

iv. MRI of the Right Knee

On July 22, 2015, Plaintiff had an MRI of the right knee administered without contrast at Urban Radiology, P.C. (R. 290). The MRI revealed “mild soft tissue swelling”; “a large right knee joint effusion with synovitis”; “a small lobulated and septated Baker's cyst extending cephalad with associated synovitis”; “synovitis within the posterior right knee joint recess”; “mild lateral patellar subluxation and mild lateral patellar tilt”; “moderate-to-marked articular cartilage loss at the patellar apex and lateral patellar facet with mild fibrocystic change along the lateral patellar facet and patellar apex”; “mild articular cartilage loss at the apex of the trochlear groove”; “small nodular hypointense filling defects” within the posterior right knee joint recess; possible pigmented villonodular synovitis; and “moderate articular cartilage loss along the posterior medial femoral condyle.” (Id.). The MRI also showed a “small partial tear at the deep origin of the ACL fibers” and “mild edema coursing along the MCL and LCL fibers and compatible with grade 1 sprains.” (Id.). Dr. Feygin noted his impression of “[m]oderate patellofemoral degenerative arthritis, ” “[m]oderate focal degenerative change along the posterior medial femoral condyle, ” and “small partial tear within the proximal ACL fibers [and] Grade 1 MCL and LCL sprains” but no meniscal tear. (R. 290-91).

Plaintiff received another MRI of his right knee on December 21, 2017. (R. 418, 421-22). The MRI showed “a complex medial meniscal tear associated with low to moderate grade partial loss of articular cartilage in the medial compartment”; “[a] small obliquely oriented tear of the anterior horn of the lateral meniscus”; “[f]ull-thickness articular cartilage loss” in the “entire superior half of the lateral patellar facet”; and “[l]ow-grade partial tearing of the anterior cruciate ligament.” (R. 418).

v. X-rays of Lumbosacral Spine and Knees

Plaintiff received X-rays of his lumbosacral spine and right knee on May 23, 2016 at The IMA Group. (R. 381-82). The lumbosacral spine X-ray revealed “slight Grade I spondylolisthesis of L5 over S1 with spondylolysis at ¶ 5.” (R. 381). The right knee X-ray revealed mild patellofemoral degenerative joint disease with joint space narrowing and osteophyte formation. (R. 382).

Plaintiff received X-rays of both knees on July 15, 2017. (R. 419). The X-rays showed “[m]ild to moderate tricompartmental osteoarthritis, prominent at the patellofemoral.” (Id.).

vi. CT Scan of the Left and Right Knees

On June 14, 2016, Plaintiff had a CT scan of his left and right knees administered at Urban Radiology, P.C. (R. 384, 386-87). The CT scan of the left knee showed mild soft tissue edema; moderate-sized left knee joint effusion; severe patellofemoral degenerative arthritis with a moderate-sized osteochondral defect at the patellar apex; moderate to severe medial compartment degenerative arthritis; and findings suspicious for a medial meniscal tear with medial meniscal extrusion with two small loose bodies versus calcification within the ACL. (R. 384). Dr. Feygin recommended further evaluation of the left knee with an MRI. (Id.).

The CT scan of the right knee revealed moderate soft tissue edema; moderate right knee joint effusion, which appeared decreased in size from the prior study; a small Baker's cyst likely without change; moderate-to-severe patellofemoral degenerative arthritis; and mild quadriceps tendinosis. (R. 386-87).

2. Medical Opinions

i. Michael Taitt, M.D.

On June 1, 2015, Plaintiff had an initial office visit with Michael Taitt, M.D. (“Dr. Taitt”), a provider at Parkville Medical Health P.C. (“Parkville”) (R. 338). Plaintiff presented with pain in his knee and lower back. (Id.). He reported that the knee pain was sharp, unbearable, radiating from the left knee to his legs and ankles, worse since onset, affecting his daily activities, affecting sleep, and exacerbated by knee movements and cold weather. (Id.). The knee pain had been present for 7 to 12 months, and Plaintiff attributed it to a recent trauma, a dislocation when he was fourteen years old, and previous history of knee pain. (Id.). His symptoms included erythema, edema, stiffness, tenderness, limitation of movement, weakness, instability, a limp, abnormal noises with knee movements, pops and ankle pain. (Id.). Plaintiff ranked his lower back pain at ¶ 7 to 8 out of 10, describing it as sharp and severe but stating that he could work despite this pain. (Id.). His lower back pain had been present for more than a year. (R. 339). Plaintiff reported spinal stenosis, back problems, muscle cramps, joint pain, muscle stiffness and joint stiffness. (Id.).

Plaintiff saw Dr. Taitt again on July 10, 2015. (R. 340). He had similar complaints as during his first visit, but now reported that his right knee pain was worse than his left and that he experienced weakness with climbing stairs. (Id.). Plaintiff also stated that his back was tighter and his back pain had increased since the last visit. (Id.). Dr. Taitt diagnosed chronic lower back and left knee pain, noting that it was previously controlled by Mobic and Flexeril. (R. 342). The pain had now worsened, and Plaintiff was taking Vicodin and Percocet, which provided partial relief. (Id.). Dr. Taitt indicated that Plaintiff's MRI shows a left knee meniscus tear and left disc herniations. (Id.). A physical exam revealed positive straight leg raise tests with lumbar pain as well as lumbar tenderness consistent with neuropathy, but no loss of sensation in his lower extremities. (Id.).

On September 1, 2015, Plaintiff saw Dr. Taitt for another visit, reporting the same issues with his knee and back. (R. 343). Dr. Taitt performed a physical exam, which revealed “inspection and palpation of the lumbar spine [] within normal limits”; no erythema, edema, deformity or scoliosis; normal spinal curves; and muscle strength testing was 5/5 in all major muscle groups. (R. 345). Dr. Taitt noted that Plaintiff was “tender to palpation over right paraspinal area of [lumbosacral] spine, ” and special tests for nerve root disease revealed right L4-L5 radiculopathy. (Id.). Upon examination of the right knee, Dr. Taitt found no deformities or misalignment of bones and no ecchymosis, erythema, edema, effusions, temperature changes, tenderness and crepitus, lacerations, subcutaneous nodules or signs of muscle atrophy. (Id.). The boney landmarks were normal, but stability testing of the knee was abnormal, and there was laxity related to dysfunction of the ACL, PCL or the menisci. (Id.). Range of motion testing revealed a “restriction on bending and extending related to ligamentous laxity.” (Id.).

Plaintiff saw Dr. Taitt again on October 5, 2015 and reported that his right knee pain had not improved since the previous visit. (R. 350). A physical exam revealed mild crepitus in his right knee, positive bilateral straight leg raise tests with left knee pain, and bilateral absent knee reflexes, but no loss of sensation in his lower extremities. (R. 352). Dr. Taitt increased Plaintiff's oxycodone dosage to 30 mg after Plaintiff reported that 15 mg was not effective. (Id.).

On October 19, 2015, Plaintiff reported at his next visit with Dr. Taitt that his back pain had not changed. (R. 354). A physical exam revealed central tenderness in his lumbar spine and moderate crepitus in his right knee with no warmth or edema. (R. 356). Plaintiff also had a positive bilateral straight leg raise test with lumbar pain and diminished knee reflexes in both knees, but no loss of sensation in his lower extremities. (Id.).

Plaintiff complained of similar knee and back pain to Dr. Taitt during visits on November 4, 2015, December 22, 2015, January 22, 2016 and February 25, 2016. (R. 358-72).

ii. Andrew M.G. Davy, M.D.P.C.

Dr. Taitt referred Plaintiff to Andrew M.G. Davy, M.D.P.C. (“Dr. Davy”), a specialist in pain medicine. (R. 444). Plaintiff saw Dr. Davy on December 9, 2015 and ranked his back pain at ¶ 8 out of 10, his left knee pain at ¶ 7 out of 10, and his right knee pain at ¶ 8 out of 10. (R. 444-45). Dr. Davy recommended physical therapy, MRI scans of the lumbar spine and knee, and injections. (R. 448).

Plaintiff saw Dr. Davy again on December 24, 2015. (R. 431). Dr. Davy diagnosed lower back pain, which Plaintiff ranked at ¶ 9 out of 10, and bilateral knee pain, which Plaintiff ranked at ¶ 7 out of 10. (R. 438). Plaintiff reported that he slept five to six hours, but the sleep was non-restorative. (Id.). Dr. Davy recommended continuing pain medication and MRI scans. (R. 439).

On January 2, 2016, Plaintiff had a follow-up visit with Dr. Davy. (R. 427). He described his pain as aching, throbbing, crampy and sharp, and ranked it at ¶ 7 out of 10, but said it was at ¶ 10 out of 10 at its worst. (Id.). Plaintiff stated that the pain is aggravated by cold/rainy weather, going up/down the stairs, walking, overhead activities and lying on the affected side. (R. 428). Plaintiff also informed Dr. Davy that he was taking the following medications for almost a year, which were helping his pain: naproxen, baclofen, Percocet and oxycodone. (Id.). He was also going to physical therapy twice a week. (R. 429).

iii. Neva C. Solomon, FNP ³

3 Though the regulations were amended in 2017 to add advanced practice registered nurses (a category that includes nurse practitioners) to the list of acceptable medical sources, these new regulations do not apply to Plaintiff's claims since he filed for disability benefits before March 27, 2017. See Cherry v. Comm'r of Soc. Sec. Admin., 813 Fed.Appx. 658, 661 (2d Cir. 2020) (citing 20 C.F.R. § 404.1502(a)(7)). “Nevertheless, an ALJ should consider evidence from “other sources, ” … on important issues like the severity of an impairment and any related functional effects.” Susan B. v. Comm'r of Soc. Sec., No. 1:20-CV-00546(EAW), 2021 WL 3266231, at *4 (W.D.N.Y. July 30, 2021).

On March 28, 2016, Plaintiff saw Neva C. Solomon, FNP (“FNP Solomon”), a family nurse practitioner at Parkville for a routine office visit. (R. 373). Plaintiff reported that his back and knee pain had not changed in character or quality. (Id.). FNP Solomon also noted that Plaintiff had high blood pressure during his last three office visits despite taking medication, and Plaintiff said he had headaches but no chest pain, shortness of breath or dizziness. (Id.).

iv. Louis Tranese, D.O. - Consultative Examination

On May 23, 2016, Plaintiff saw Louis Tranese, D.O. (“Dr. Tranese”) at Industrial Medicine Associates, P.C. for an orthopedic consultative examination. (R. 377). Plaintiff presented with lower back and left knee pain. (Id.). He characterized his knee pain as “a severe dull ache associated with swelling” that is aggravated by weightbearing including standing for long periods of time, squatting, kneeling, crouching, stair climbing and walking long distances. (Id.). “His low back pain is characterized as a dull, stiff ache localized to the lumbar region” and “aggravated with bending, uncomfortable sleep positions, and heavy lifting.” (Id.). Plaintiff reported that his back and neck pain are temporarily and moderately relieved with prescription medication, position changes and rest. (Id.). Plaintiff said he depends on his mother for cooking, cleaning, laundry and shopping, but is able to care for his child twice per month and able to shower, bathe, dress and groom himself independently daily. (R. 378).

Dr. Tranese noted that Plaintiff appeared to be in no acute distress, that his gait was antalgic, his station was normal, and that he was able to walk on his heels and toes but with a limp. (Id.). Plaintiff had difficulty squatting beyond 50% maximum capacity due to his knee and back pain, and presented with a cane prescribed by his physicians that Dr. Tranese opined was medically necessary for long-distance outdoor ambulation. (Id.). Plaintiff was able to rise from his chair without difficulty and did not need help changing for the exam or getting on and off the exam table. (Id.). Dr. Tranese found Plaintiff's hand and finger dexterity to be intact with 5/5 grip strength bilaterally and determined that his cervical spine and upper extremities had no pain or spasm; no sensory abnormalities; no joint inflammation, effusion, or instability; and no muscle atrophy. (R. 379). Plaintiff's thoracic and lumbar spines showed “[f]lexion 50 degrees, extension 10 degrees, lateral flexion 30 degrees bilaterally, and rotary movements approximately 20 degrees bilaterally[] limited by pain at end points.” (Id.). Plaintiff reported bilateral mid to lower lumbar paraspinal tenderness and had a negative straight leg raise test on both legs. (Id.). His right knee had a range of motion of 0 degrees extension and 120 degrees flexion, while his left knee had a range of motion of 0 degrees extension and 90 degrees flexion. (Id.). His lower extremities had 5/5 strength in proximal and distal muscles bilaterally, no muscle atrophy, no sensory abnormality and normal reflexes. (Id.). Plaintiff had swelling in both knees as well as medial and lateral joint tenderness bilaterally. (Id.).

Dr. Tranese concluded that Plaintiff has a moderate restriction with squatting, kneeling and crouching; mild to moderate restriction with walking long distances; moderate restriction with excess stair climbing; mild to moderate restriction with bending; moderate restriction with heavy lifting; but no other physical or functional deficits. (R. 380).

v. Robert Greene, M.D. - Consultative Examination

Plaintiff saw Robert Greene, M.D. (“Dr. Greene”) at Industrial Medicine Associates, P.C. for an internal medicine consultative examination on March 9, 2018. (R. 393). Plaintiff presented with lower and mid back pain, right and left knee pain, and high blood pressure. (Id.). Plaintiff reported that due to this pain, he stays in the house most of the time - his mother's apartment where he lives has about 20 steps that are painful for him to go up and down so he limits the number of times he goes out. (Id.). Plaintiff stated that his mother does the cooking, cleaning, laundry and shopping, but he is able to shower, bathe and dress himself daily. (R. 394). He spends his days watching television, listening to the radio and reading. (Id.).

Dr. Greene noted that Plaintiff appeared to be in no acute distress, and his gait and stance were normal. (Id.). Dr. Greene stated that Plaintiff cannot walk on his heels and toes without difficulty, and always uses a cane for balance, which was prescribed by his doctors and is “medically necessary because he is unsteady without it.” (Id.). Plaintiff did not need help changing for the exam or getting on and off the exam table, but did it slowly, and he was able to rise from the chair without difficulty. (Id.). Plaintiff's lumber spine showed “decreased flexion to 60 degrees, decreased lateral flexion to 10 degrees both left and right, decreased lumbosacral rotation to 5 degrees left and right.” (R. 395). Plaintiff also had a negative straight leg raise test. (Id.). Plaintiff's knees had “decreased flexion to 120 degrees both left and right.” (Id.). His joints were stable and nontender without redness, heat, swelling or effusion, and his deep tendon reflexes were physiologic and equal in upper and lower extremities at a strength of 5/5. (Id.). Dr. Greene diagnosed Plaintiff with lower and mid back pain, secondary to ruptured vertebral discs; right and left knee pain secondary to osteoarthritis and medial meniscus tear and ACL tear; and high blood pressure. (R. 396). He opined that Plaintiff has a moderate to marked limitation for heavy lifting, heavy carrying, squatting, kneeling, crouching, frequent stair climbing, prolonged walking, prolonged standing, prolonged sitting and frequent bending. (Id.). In a medical source statement regarding Plaintiff's ability to do work-related activities, Dr. Greene noted that Plaintiff could lift up to 20 pounds continuously; carry up to 10 pounds frequently; sit for 4 hours at one time and 8 hours in a workday; stand for 1 hour at one time and 2 hours in a workday; and walk for 30 minutes at one time or 1 hour in a workday. (R. 397-98). Dr. Greene stated that a cane is medically necessary for Plaintiff, and that he could walk 5 to 10 feet without a cane. (R. 398). Plaintiff could continuously reach, handle, finger, feel, push/pull with both hands; could operate foot controls occasionally with both feet; could occasionally climb stairs and ramps, and balance; and could never climb ladders or scaffolds, stoop, kneel, crouch or crawl. (R. 399-400). Dr. Greene also noted that Plaintiff could occasionally tolerate exposure to unprotected heights; moving mechanical parts; operating a motor vehicle; humidity and wetness; dust, odors, fumes and pulmonary irritants; extreme cold; extreme heat; vibrations; and moderate noise. (R. 401).

vi. Chaim Shtock, D.O. - Consultative Examination

On March 9, 2018, Plaintiff saw Chaim Shtock, D.O. (“Dr. Shtock”) at Industrial Medicine Associates, P.C. for an orthopedic consultative examination. (R. 405). Plaintiff presented with complaints of knee pain, more in the left knee than the right, lower back pain, and difficulty ambulating. (Id.). Plaintiff reported that the pain is aggravated with prolonged walking, stair climbing, squatting, kneeling and standing, and relieved with rest and refraining from aggravating activities and medication. (Id.). Dr. Shtock noted that Plaintiff is independent in using the microwave, doing light food shopping, showering, bathing, grooming and dressing. (R. 406). Plaintiff's mother does the main cooking, and his visiting brother does the cleaning and laundry. (Id.). Plaintiff spends his time watching television and listening to the radio. (Id.).

Dr. Shtock's physical examination revealed that Plaintiff was in no acute distress and presented with a cane, which was prescribed by his pain management physician and which he uses both outdoors and indoors. (Id.). Dr. Shtock noted that Plaintiff ambulates with a slow gait but leans towards the right, and can walk on his heels and toes with difficulty. (Id.). Plaintiff was unable to squat beyond 30% maximum capacity. (Id.). He needed no help changing for the exam or getting on and off the exam table and was able to rise from the chair with difficulty. (Id.). Plaintiff had limited range of motion in his cervical and lumbar spine, and he reported tenderness in his lumbar spine with a positive straight leg raise test bilaterally at 30 degrees seated. (R. 407). He did not have spasms, scoliosis, kyphosis or trigger points. (Id.). Plaintiff also had limited range of motion in his hips and knees, and reported tenderness in the medial aspect of the bilateral knees, but did not have sensory abnormality, joint effusion, inflammation or instability. (Id.).

Dr. Shtock concluded that Plaintiff had a moderate to marked limitation with squatting; mild limitation with heavy lifting, kneeling, crouching, frequent climbing, walking long distances and standing long periods; mild to moderate limitation with sitting long periods and with frequent bending. (R. 408). Plaintiff had no limitation performing overhead activities with both arms or using both hands for fine and gross manual activities, and had no other physical functional deficits. (Id.). In a medical source statement of ability to do work-related activities, Dr. Shtock noted that Plaintiff can continuously lift and carry up to 10 pounds; sit for 30 to 35 minutes at one time and 4 hours in a workday; stand for 20 to 25 minutes at one time and 2 hours in a workday; and walk for 25 to 30 minutes at one time and 2 hours in a workday. (R. 409-10). Dr. Shtock stated that Plaintiff's use of a cane was medically necessary, and that without a cane, he can walk 10 to 15 feet. (R. 410). He could continuously reach, handle, finger, feel and push/pull with both hands, and could occasionally operate foot controls with both feet. (R. 411). Plaintiff was able to occasionally climb stairs and ramps, balance, stoop, kneel, crouch and crawl, but could never climb ladders or scaffolds. (R. 412). Dr. Shtock found that Plaintiff could occasionally tolerate exposure to unprotected heights, moving mechanical parts, and operating a motor vehicle, and could frequently tolerate humidity and wetness, dust, odors, fumes, pulmonary irritants, extreme cold and heat, and vibrations. (R. 413). Plaintiff could also tolerate moderate noise. (Id.).

vii. Spencer A. Colden, M.D.

On January 30, 2019, Spencer A. Colden, M.D. (“Dr. Colden”), a specialist in physical medicine and rehabilitation, and pain management, completed a residual functional capacity form for Plaintiff.⁴ (R. 57-62). Dr. Colden explained that he sees Plaintiff at least one to two times per month and has been seeing him for over a year for his knee, mid and lower back problems. (R. 57). Dr. Colden noted that Plaintiff has difficulty walking, going up and down the stairs, lifting and carrying almost all objects, and bending and reaching. (Id.). Dr. Colden diagnosed osteoarthritis of both knees, moderate to severe degenerative disc disease of the lower and mid back, and moderate to severe ambulation dysfunction requiring the use of a cane, characterized by painful and decreased range of motion in the knees and back, weakness in the legs, and numbness and tingling in the feet. (Id.). Dr. Colden stated that Plaintiff's impairment prevents him from standing for six to eight hours — he can only stand for fifteen to twenty minutes at a time. (R. 58). Similarly, Plaintiff cannot sit for six to eight hours — he can only sit for one to two hours at a time. (Id.). Dr. Colden noted that Plaintiff was able to walk forty to fifty feet without stopping, and could consistently carefully handle objects with his fingers, frequently reach up above his shoulder and down to his waist level, and rarely reach down towards the floor. (R. 59). Plaintiff could also lift and carry less than five pounds regularly/daily, but was unable to lift, carry or hold objects that were more than five to ten pounds. (R. 59-60). Dr. Colden remarked that Plaintiff has limited range of motion in bending, squatting, kneeling and turning his neck, torso and lower back. (R. 60). Further, Plaintiff's opioid pain medication can cause lethargy, fatigue and mental cloudiness. (Id.). Dr. Colden concluded that Plaintiff would not be able to continue or resume work at his current or previous employment because he has “problems with both knees, mid back and lower back that prevent him from standing and walking for any significant time or distance and lifting [and] carrying any objects greater than 3-5 pound[s].” (R. 61). Dr. Colden opined that Plaintiff would “probably not” be able to do other work given his skills and impairment, and would “probably not” be able to return to his previous type of job. (Id.). Dr. Colden also did not expect Plaintiff's disability to change over time. (Id.).

4 Plaintiff submitted this form to the Appeals Council when he requested review of his unfavorable hearing decision. “After the Appeals Council denied review, the new evidence considered by the Appeals Council became part of the administrative record.” Vasquez v. Saul, No. 16-CV-3610(VSB)(DCF), 2019 WL 5682631, at *7 (S.D.N.Y. Nov. 1, 2019); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) (“When the Appeals Council denies review after considering new evidence, we simply review the entire administrative record, which includes the new evidence, and determine, as in every case, whether there is substantial evidence to support the decision of the Secretary.”).

B. Nonmedical Evidence

1.Plaintiff's Function Report

On March 29, 2016, Plaintiff completed a function report. (R. 230-39). Plaintiff stated that he lives in an apartment with his family, and spends his days sitting on the couch, sitting on the floor, lying on the floor to alleviate the pain, watching television, reading, eating, taking medication and sometimes participating in therapy. (R. 230). He remarked that he also takes care of his one-year-old daughter with help from his mother and his daughter's mother by bathing her, cooking for her, feeding her and educating her. (R. 231). Plaintiff reported that he could no longer jog, walk long distances, cook while standing without breaks, sleep, drive long distances, sit for long periods of time, bend without pain, and lift and carry heavy loads. (Id.). He has difficulty sleeping due to the pain in his back. (Id.). Plaintiff does not have a problem with personal care, does not need reminders to take care of his personal needs, and does not need help or reminders taking medicine. (R. 231-32). He and his mother prepare meals, though due to his injuries, he tries to make things that are quick and easy. (R. 232). Plaintiff can do light cleaning, like small amounts of dishes, and only needs help to get up sometimes. (R. 232-33). He goes outside five days a week and uses public transportation to get around, though he can also drive close distances. (R. 233). He rarely sits when he is on public transportation. (Id.). Plaintiff goes shopping in stores and online for food and baby necessities, and his injuries have not changed his ability to handle his finances. (R. 233-34). He also goes to court, church, doctor's appointments and therapy on a regular basis. (R. 234). When Plaintiff goes to church, he has to sit in the aisle to maneuver his legs. (R. 239). In terms of socializing, Plaintiff keeps in touch with people by text message daily and sees his daughter every other weekend. (R. 234).

Plaintiff reported that his injuries impact his ability to lift, stand, walk, sit, climb stairs, kneel and squat as these activities cause pain and/or stress in his back and/or knees. (R. 235). He stated that he uses a back brace and occasionally a cane when the pain is unbearable, both of which were prescribed by a doctor. (R. 236). He uses these aids when walking and can walk one to two blocks before having to stop and rest. (Id.).

Plaintiff explained that his pain started over ten years ago and gradually got worse over time. (R. 237). He sees Dr. Feygin, Dr. Taitt and Dr. Marie for the pain. (Id.). Plaintiff characterized the back pain as cramping, throbbing, stiffness, stabbing and aches, and the knee pain as locking, throbbing, aching and weakness. (R. 238). He feels the pain “all day, [e]veryday” and has been taking the following medications for it since May 2015: oxycodone, gabapentin, naproxen and Relafen. (R. 238-39). Plaintiff reported that these medications take about thirty minutes to take effect, last about eight hours, and do not cause any side effects. (Id.).

2. Plaintiff's Testimony

Plaintiff participated in two hearings, on April 19 and June 19, 2018, and appeared pro se at both. (R. 64-107). At the April 19, 2018 hearing, the ALJ pointed out that she does not have any medical records for Plaintiff after 2015. (R. 70). Plaintiff testified that he goes to pain management every month with Dr. Colden and stated that he mailed CAT scans and MRIs to the ALJ, which were ordered by Dr. William Urban at SUNY Downstate. (R. 70-71). Plaintiff reported that he travels from Brooklyn to the Bronx to see Dr. Foster, a primary care physician, and his family members drive him there. (R. 72-74). He also saw Dr. Feygin at Parkville once a month in 2016 until his office closed in early 2017, as well as Dr. Davy, a doctor and physical therapist. (R. 73-74). The ALJ concluded the hearing and rescheduled it for a later date so that they had more time to locate these additional medical records. (R. 75). The ALJ said she would help Plaintiff acquire them by requesting them herself, and asked Plaintiff to bring in any records he has prior to the next hearing. (R. 76).

At the June 19, 2018 hearing, the ALJ noted that she requested Plaintiff's medical records, that records were still outstanding from some of these providers, and that she is going to continue to follow up on those. (R. 86). Plaintiff testified that he saw Dr. Colden recently and sees him every month, and the ALJ asked Plaintiff to get a copy of his records at his next appointment. (Id.). Plaintiff stated he last saw Dr. Davy six months to a year prior to the hearing and was last at Mannam Medical Center a couple of months ago. (R. 87). Plaintiff attested that Parkville shut down and he was last there a year ago. (Id.).

During the June hearing, Plaintiff testified that he lives with his mother in a second-floor walk-up apartment, and has trouble going up and down the stairs because his knees buckle. (R. 91). He explained that he wasn't working due to pain everywhere in his body, making it unbearable to sit down or stand up. (R. 92). He said that he spends his days sitting as long as he can, then standing, reading, coping with the pain and watching cartoons when he is with his daughter. (Id.). Plaintiff testified that he does not do household chores, and he pays someone to do his laundry. (Id.). He said that he dresses and showers by himself. (Id.). He largely gets around by taking the train, though sometimes his family drives him; he never drives. (R. 93-94). Plaintiff noted that he takes the following medications: gabapentin, naproxen, oxycodone and blood pressure pills. (R. 94). The medications make him drowsy and constipated. (Id.). Plaintiff estimated that he can walk ten feet on a straight plane before his legs buckle or give out. (R. 95). The doctors at Parkville recommended that Plaintiff use a cane, which he had with him at the hearing. (Id.). He can stand for approximately five to ten minutes at a time, though sometimes for only one minute, and can sit for about half an hour at a time. (R. 95-96). Plaintiff stated that he can lift or carry five pounds. (R. 96).

3. Vocational Expert Testimony

Vocational Expert (“VE”) Esperanza DiStefano (“DiStefano”) testified that Plaintiff's most recent work consisted of employment as a moving laborer, which is very heavy work and is unskilled with a Specific Vocational Preparation (“SVP”) of 2. (R. 99).

The ALJ posed a hypothetical to VE DiStefano, asking her to assume an individual of Plaintiff's age, education and work experience, with the following limitations: the individual can perform sedentary work, can occasionally climbs stairs and ramps, but can never climb ladders, ropes or scaffolds. (Id.). He can occasionally balance and stoop, but can never kneel, crouch or crawl, and cannot push or pull with leg controls. (Id.). The individual cannot work at unprotected heights, around moving mechanical parts, or on uneven terrain. (Id.). He can tolerate occasional exposure to temperature extremes, including extreme cold, heat or humidity, as well as to pulmonary irritants such as dust, odors and fumes. (Id.). The individual ambulates with a cane for weight-bearing and balance. (R. 99-100).

VE DiStefano testified that such an individual would not be able to perform any of Plaintiff's past work as a moving laborer. (R. 100). However, VE DiStefano stated that such an individual would be able to perform the jobs of document preparer, call-out operator and toy stuffer, which are all sedentary, unskilled positions with a SVP of 2. (Id.).

The ALJ then posed a second hypothetical to VE DiStefano, adding the additional limitation that the work be simple and routine. (Id.). VE DiStefano testified that such an individual would be able to perform any of the three jobs she identified. (Id.). She also stated that most employers will tolerate an employee being off-task ten percent of the time, but not twenty percent of the time. (Id.). She explained further that if an individual were off-task fifteen percent of the time, there would be a fifty percent erosion of jobs that that individual would be able to maintain. (R. 100-01). VE DiStefano also testified that if an employee is consistently absent from work two days per month, they would be unable to maintain employment. (R. 101). The ALJ posed a third hypothetical to VE DiStefano, adding to the previous hypothetical an additional limitation that the individual needed the opportunity to sit or stand at will. (Id.). VE DiStefano testified that such an individual would be able to do any of the jobs identified above, including the additional job of surveillance system monitor, which is also a sedentary, unskilled position with a SVP of 2. (Id.). VE DiStefano stated that her testimony is consistent with the Dictionary of Occupational Titles (“D.O.T”), with the exception of her opinion regarding time off task, days absent from work, and the sit/stand option, which are based on her own experience and knowledge given that the D.O.T. is silent as to at least the sit/stand option. (R. 102).

C. The ALJ's Decision

ALJ Ramrup applied the five-step procedure established by the Commissioner for evaluating disability claims. See 20 C.F.R. § 416.920(a). (R. 10-18). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since December 28, 2015, the application date. (R. 12). At step two, the ALJ found that Plaintiff had the following severe impairments: (1) lumbar radiculopathy, and (2) internal derangement of both knees. (Id.). The ALJ further found that Plaintiff's hypertension was a non-severe impairment. (R. 13). At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926). (Id.).

The ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. § 416.967(a), except that Plaintiff can occasionally climb ramps and stairs, but can never climb ladders, ropes or scaffolds. (Id.). Plaintiff can occasionally balance and stoop, but can never kneel, crouch, or crawl. (Id.). Plaintiff cannot push or pull with leg controls and cannot work at unprotected heights around moving mechanical parts or on uneven terrain. (Id.). Plaintiff can tolerate occasional exposure to temperature extremes, including extreme cold, heat or humidity as well as to pulmonary irritants, such as dust, odors and fumes. (Id.). Plaintiff ambulates with a cane for weightbearing and balance. (Id.). In arriving at the RFC, the ALJ considered all of Plaintiff's symptoms and their consistency with the objective medical evidence and other evidence in the record. (Id.). The ALJ ultimately determined that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (R. 14). The ALJ reviewed the opinion evidence in the record, giving “partial weight” to the opinion of the consultative examiner, Dr. Tranese, and “great weight” to the opinions of the other consultative examiners, Drs. Greene and Shtock. (R. 16-17).

At step four, the ALJ determined that Plaintiff was not capable of performing his past relevant work as a roofing laborer as the exertional requirements of this work exceed his RFC for sedentary work. (R. 17). However, considering Plaintiff's age, education, work experience and RFC, the ALJ opined that there are jobs that exist in the national economy that Plaintiff can perform. (Id.). The ALJ thereafter concluded that Plaintiff was not disabled under the Social Security Act. (R. 18).

II. DISCUSSION

The Commissioner argues that the ALJ's decision should be affirmed because it is supported by substantial evidence and free of legal error. (Comm'r Br. at 19-30). Specifically, the Commissioner contends that the ALJ fulfilled her duty to assist Plaintiff in developing the record, (id. at 20-22), Plaintiff's impairments did not meet or equal a listed impairment, (id. at 23), substantial evidence supported the RFC and credibility findings, (id. at 24-29), and the Appeals Council properly denied Plaintiff's request for review, (id. at 29-30). Plaintiff argues that the ALJ's decision should be reversed and remanded for further administrative proceedings for four reasons: (1) the ALJ failed to fully develop the record, (Pl. Br. at 12-20); (2) the Appeals Council committed legal error by declining to evaluate new evidence from Dr. Colden, (id. at 20-23); (3) the ALJ's RFC determination is shrouded by legal error because there is no medical opinion to show Plaintiff's capacity to do sedentary work, (id. at 23-26); and (4) the step three analysis is not supported by substantial evidence, (id. at 26-28).

A. Legal Standards

A claimant is disabled if he or she “is unable ‘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.'” Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)). The SSA has enacted a five-step sequential analysis to determine if a claimant is eligible for benefits based on a disability:

(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a “residual functional capacity” assessment, whether the

claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008); 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). The claimant has the general burden of proving that he or she is statutorily disabled “and bears the burden of proving his or her case at steps one through four.” Cichocki, 729 F.3d at 176 (quoting Burgess, 537 F.3d at 128). At step five, the burden then shifts “to the Commissioner to show there is other work that [the claimant] can perform.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 445 (2d Cir. 2012).

When reviewing an appeal from a denial of SSI or disability benefits, the Court's review is “limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); see also 42 U.S.C. § 405(g). Substantial evidence means “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)). Put another way, a conclusion must be buttressed by “more than a mere scintilla” of record evidence. Id. (quoting Consolidated Edison, 305 U.S. at 229). The substantial evidence standard is “very deferential” to the ALJ. Brault, 683 F.3d at 448. The Court does not substitute its judgment for the agency's or determine de novo whether [the claimant] is disabled.” Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (alteration in original) (quoting Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)).

However, where the proper legal standards have not been applied and “might have affected the disposition of the case, [the] court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). Therefore, “[f]ailure to apply the correct legal standards is grounds for reversal.” Id.

1.Treating Physician Rule ⁵

5 Despite recent changes in the regulations, the treating physician rule applies to claims filed before March 27, 2017. Quiles v. Saul, No. 19-CV-11181(KNF), 2021 WL 848197, at *9 (S.D.N.Y. Mar. 5, 2021) (citing 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2)). Plaintiff filed his claim on December 28, 2015, (R. 109-10), so the treating physician rule applies to his claim.

In determining whether a claimant is disabled, an ALJ must give the medical opinion of a treating physician “controlling weight if it is well supported by medical findings and not inconsistent with other substantial evidence.” Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999). This is because the treating physician is in a more capable position to provide a detailed picture of a claimant's impairments than consultative physicians who may see the claimant on just one occasion or not at all. See Estela-Rivera v. Colvin, No. 13-CV-5060(PKC), 2015 WL 5008250, at *13 (E.D.N.Y. Aug. 20, 2015) (citing 20 C.F.R. § 404.1527(d)(2)). An ALJ may properly disregard the opinion of a treating physician where the opinion is contradicted by the weight of other record evidence, Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999), or if it is internally inconsistent or otherwise uninformative, see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); see also Micheli v. Astrue, 501 Fed.Appx. 26, 28 (2d Cir. 2012) (summary order) (“A physician's opinions are given less weight when his opinions are internally inconsistent.”).

Where the ALJ affords limited weight to the treating source's opinion and more weight to a non-treating source's opinion, he or she must provide “good reasons” for doing so. Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998); see also 20 C.F.R. § 404.1527(c)(2). In addition, the ALJ must follow “specific procedures . . . in determining the appropriate weight to assign” the treating source's opinion. Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019). The ALJ must “explicitly consider the following, nonexclusive Burgess factors: (1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Id. at 95-96 (quoting Selian, 708 F.3d at 418) (per curium) (citing Burgess, 537 F.3d at 129)) (internal quotation marks omitted). “An ALJ's failure to ‘explicitly' apply the Burgess factors when assigning weight at step two is a procedural error.” Id. at 96. Where an ALJ procedurally errs, “the question becomes whether a searching review of the record . . . assure[s] [the court] . . . that the substance of the treating physician rule was not traversed.” Id. (quoting Halloran, 362 F.3d at 32) (internal quotation marks omitted). Remand is appropriate “when the Commissioner has not provided ‘good reasons' for the weight given to a treating physician[']s opinion.” Halloran, 362 F.3d at 33.

B. ALJ's Duty to Develop the Record

The Commissioner argues that the ALJ fulfilled her duty to assist Plaintiff in developing the record because she repeatedly requested the records that Plaintiff identified, called Plaintiff's medical sources to follow up on those requests, subpoenaed records, held a second hearing in order to give herself more time to secure records, informed Plaintiff at the second hearing that his doctors were not responding to her requests, advised him to ask his doctors for those records directly, and followed up on the subpoenas. (Comm'r Br. at 20-22; Comm'r Reply Br. at 2-3). Plaintiff contends that the ALJ failed to develop the record because she did not follow up on the subpoena requests and did not ask Plaintiff questions during the hearings that would detail the effects of his physical impairments on his ability to function and work. (Pl. Br. at 12-17).

“[I]n light of the ‘essentially non-adversarial nature of a benefits proceeding[, ]'” “[a]n ALJ, unlike a judge at trial, has an affirmative duty to develop the record.” Vega v. Astrue, No. 08-Civ-1525 (LAP)(GWG), 2010 WL 2365851, at *2 (S.D.N.Y. June 10, 2010) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)). “[T]he ALJ is under a heightened duty to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts” when the Plaintiff is pro se, Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (internal citations omitted), and when the record sought is that of a treating physician, Suriel v. Comm'r of Soc. Sec., No. 05-CV-1218 (FB), 2006 WL 2516429, at *4 (E.D.N.Y. Aug. 29, 2006). “[W]here there are no obvious gaps in the administrative record, and where the ALJ already possesses a complete medical history, the ALJ is under no obligation to seek additional information.” Rosa, 168 F.3d at 79, n.5 (quoting Perez, 77 F.3d at 48) (internal quotation marks omitted). “Whether the ALJ has satisfied this duty to develop the record is a threshold question.” Smoker v. Saul, No. 19-CV-1539(AT)(JLC), 2020 WL 2212404, at *9 (S.D.N.Y. May 7, 2020). The court must be satisfied that the record is fully developed before determining whether the Commissioner's decision is supported by substantial evidence. See id.

1. Seeking Medical Opinions of Plaintiff's Treating Physicians

Under the regulations, the ALJ “must develop the plaintiff's ‘complete medical history,' and make ‘every reasonable effort' to help the plaintiff get the required medical reports.” Jones v. Apfel, 66 F.Supp.2d 518, 523 (S.D.N.Y. 1999) (citing 20 C.F.R. § 404.1512(d)). “‘Every reasonable effort' has been defined by the regulations to require an initial request for medical evidence from the medical source, and a follow-up request, followed by a ten-day extension, if the requested evidence has not been received within ten to twenty calendar days.” Id. (citing 20 C.F.R. § 404.1512(d)(1)). Reasonable efforts in cases concerning pro se plaintiffs involves “more than merely requesting reports from the treating physicians. It includes issuing and enforcing subpoenas requiring the production of evidence, as authorized by 42 U.S.C. § 405(d), and advising the plaintiff of the importance of the evidence. The ALJ must also enter these attempts at evidentiary development into the record.” Id. at 524 (internal citations omitted).

Plaintiff argues that the ALJ failed to seek medical opinions, as opposed to merely medical records, from Plaintiff's treating physicians. (Pl. Br. at 18-20). The Commissioner contends that the record was sufficient without an assessment from a treating medical source as there were no obvious gaps in the record. (Comm. Reply Br. at 4-5).

“When the claimant appears pro se, the combined force of the treating physician rule and the duty to conduct a searching review requires that the ALJ make every reasonable effort to obtain not merely the medical records of the treating physician but also a report that sets forth the opinion of that treating physician as to the existence, the nature, and the severity of the claimed disability.” Suriel, 2006 WL 2516429 at *6; see also Devora v. Barnhart, 205 F.Supp.2d 164, 174 (S.D.N.Y. 2002); Williams v. Barnhart, No. 05-CV-7503(JCF), 2007 WL 924207, at *7 (S.D.N.Y. Mar. 27, 2007) (“‘Raw data' or even complete medical records are insufficient by themselves to fulfill the ALJ's duty…Rather, the ALJ must also make ‘every reasonable effort to obtain ... a report that sets forth the opinion of that treating physician as to the existence, the nature and the severity of the claimed disability.'”). Where there are medical records from treating physicians, and “the treatment notes and test results from the claimant's treating physicians do not assess how the claimant's symptoms limit [his] functional capacities, '” the record is incomplete, warranting remand. Hernandez v. Saul, No. 3:19-CV-01033(WIG), 2020 WL 3286954, at *4 (D. Conn. June 18, 2020); see also Brazil v. Berryhill, 19-CV-7041(RWL), 2020 WL 5440472, at *7 (S.D.N.Y. Sept. 10, 2020). On the other hand, a lack of a formal source statement from a treating physician does not always require remand if the ALJ can glean an informal assessment of the plaintiff's limitations from the treating physician's notes. See Tankisi v. Comm'r of Soc. Sec., 521 Fed.Appx. 29, 34 (2d Cir. 2013) (summary order); Sanchez v. Colvin, No. 13-CV-6303(PAE), 2015 WL 736102, at *5 (S.D.N.Y. Feb. 20, 2015); Prince v. Colvin, No.-13 CV-7666(TPG), 2015 WL 1408411, at *17 (S.D.N.Y. Mar. 27, 2015) (Because the record before the ALJ “contained detailed medical records” from Plaintiff's treatment with the treating physician, the ALJ “was not required to obtain a medical source statement” from the treating physician.).

The Court finds that the ALJ failed to fulfill her duty to develop the record because she did not secure medical opinions from treating physicians. Here, the ALJ issued subpoenas that only requested medical records, but not a medical source statement or report, from Dr. Davy, Dr. Colden and Mannam Medical Center. (R. 177-84). Specifically, the subpoenas required them to produce “[a]ll records from first visit to present. Do not send X-rays.” (Id.). “The ALJ could simply have added to the language of the subpoena, a request that the physicians either comment on the claimant's asserted disability and in particular [his] functional capacity, or else demand that the physician complete an attached questionnaire.” Valoy, v. Barnhart, No. 02-CV-8955(HB), 2004 WL 439424 at *7 (S.D.N.Y. Mar. 9, 2004) (remanding due to lack of treating physicians' opinions where in the medical subpoenas, the ALJ failed to request that the treating physicians submit reports on Plaintiff's asserted disability and in particular, their perspective as to her fitness for employment). The ALJ's follow-up attempts via phone and voicemail were also only about medical records rather than reports or source statements. (R. 280-81). Further, at the second hearing, the ALJ only advised Plaintiff to get his medical records at his upcoming doctors' visits, so he was not informed that he could seek such medical opinions himself. (R. 105-06); see Williams, 2007 WL 924207 at *8 (“At the hearing, the ALJ noted that he had medical records from Columbia-Presbyterian, but did not mention that the record contained no opinion from the plaintiff's treating physician regarding her ability to perform work-related activities… The ALJ did not inform the plaintiff that she could seek such an opinion herself.”).

Though the record does contain detailed treatment notes from Dr. Taitt and Dr. Davy, both treating physicians, the ALJ could not have gleaned an informal assessment of Plaintiff's limitations from these notes, since they do not address Plaintiff's capabilities or the doctors' perspectives on Plaintiff's fitness for employment. (R. 338-72, 427-30, 431, 444-48). Further, the ALJ only considered Dr. Taitt's medical records in her RFC analysis, and only as treatment notes, but did not reference Dr. Davy's records at all, so the Court cannot ascertain how the ALJ treated these records. (R. 13-17). Also, the ALJ did not have before her either the medical records or the medical opinion of Plaintiff's other treating physician, Dr. Colden, who subsequently submitted a residual function capacity form that provides new information about the side effects of Plaintiff's opioid medication, adds information about Plaintiff's ability to sit and stand, and opines that Plaintiff probably could not do his previous work or any other work. (R. 60-61). Accordingly, I respectfully recommend remanding this matter to the ALJ to obtain medical opinions from Plaintiff's treating physicians.

2. Following Up on Subpoena Requests for Medical Records

The Court finds that the ALJ did not err by failing to follow up on or enforce the subpoenas. Plaintiff is correct that the ALJ has a heightened duty to assist a pro se Plaintiff and to secure records from a treating physician, which can be met by issuing and enforcing subpoenas, and advising the plaintiff of the importance of the evidence. Here, the ALJ did, in fact, issue subpoenas to Dr. Davy, (R. 177-79), Mannam Medical Center, (R. 180-82), and Dr. Colden, (R. 183-85), in August 2018, and followed up on these subpoenas with recorded phone calls and voicemails, (R. 280-81). Therefore, Plaintiff's arguments that the ALJ failed to follow up on the subpoenas are unavailing. (Pl. Br. at 13). The ALJ also advised Plaintiff at his second hearing that his doctors were not responding to the agency's requests and suggested that he contact his doctors for the records, which informed Plaintiff of the importance of the evidence. (R. 86-88, 105-06). Thus, the ALJ made “every reasonable effort” to obtain medical records from these medical sources.

Further, assuming, arguendo, that the ALJ's follow-up requests by phone and voicemail after issuing the subpoenas did not constitute enforcement of the subpoenas, ALJs have discretion not to enforce subpoenas even in pro se cases. See Serrano v. Barnhart, No. 02-CV-6372(LAP), 2005 WL 3018256, at *2 (S.D.N.Y. Nov. 10, 2005) (finding that the ALJ's decision not to enforce the subpoena was well within her discretion where the ALJ had available to her three years of Plaintiff's medical history, four complete medical analyses, and the doctor in question only examined Plaintiff twice in the relevant time period); see also Johnson v. Comm'r of Soc. Sec., No. 19-CV-1576(KAM), 2021 WL 308284, at *5 (E.D.N.Y. Jan. 29, 2021); Hatcher v. Comm'r of Soc. Sec., No. 15-CV-3282(SJF), 2017 WL 1323747, at *12 (E.D.N.Y. Mar. 22, 2017).

The cases that Plaintiff cites regarding the ALJ's duty to follow up and enforce subpoenas are distinguishable from the instant case. Several of the cited cases involve an ALJ's failure to inform the plaintiff of the doctor's or medical facility's lack of response, thus not granting plaintiff the chance to retrieve the medical records on his or her own. See Sanchez v. Barnhart, 329 F.Supp.2d 445, 451 (S.D.N.Y. 2004); see also Carroll v. Sec'y of Dep't of Health & Hum. Servs. of U.S., 872 F.Supp. 1200, 1204 (E.D.N.Y. 1995); Emerick v. Saul, No. 19-CV-2826, 2020 WL 4504638, at *3 (E.D.N.Y. Aug. 5, 2020). Here, the ALJ told Plaintiff at the second hearing about the doctors' non-responsiveness and advised him to retrieve the records from his doctors at upcoming visits. The other cited cases either involve no issuance of a subpoena at all, see Jones, 66 F.Supp.2d at 523 and Estrella v. Comm'r of Soc. Sec., No. 12-CV-6134 (NSR)(JCM), 2016 WL 5920128, at *2 (S.D.N.Y. Oct. 7, 2016), or no action to follow up on and enforce the subpoena, see Martinez v. Comm'r of Soc. Sec., No. 17-CV-10253(PAE), 2019 WL 1236324, at *5 (S.D.N.Y. Mar. 18, 2019); Marinez v. Comm'r of Soc. Sec., 269 F.Supp.3d 207, 218 (S.D.N.Y. 2017); Suriel, 2006 WL 2516429. In the instant case, subpoenas were issued and followed up on with phone calls and voicemails. As such, the ALJ did not err by failing to follow up on or enforce the subpoenas.

3. Asking Plaintiff Sufficient Questions at the Hearing

Plaintiff argues that the ALJ missed crucial opportunities to ask Plaintiff questions sufficient to develop the record and make an RFC assessment, namely by not following up on Plaintiff's testimony that his “knees buckled” when using the stairs and that his pain impacts his ability to sit and stand. (Pl. Br. at 15-17). The Commissioner responds that the ALJ satisfied her duty to develop the record through Plaintiff's testimony, written function reports, medical records and multiple consultative examinations and assessments. (Comm. Reply Br. at 4).

“To determine whether a claimant received a fair and adequate hearing, a court must consider whether the ALJ adequately assisted the claimant in developing the record by asking questions regarding the disposition and extent of the claimant's subjective symptoms.” Rivera v. Barnhart, 379 F.Supp.2d 599, 606 (S.D.N.Y. 2005) (internal citations omitted). “This circuit has repeatedly held that a claimant's testimony concerning his pain and suffering is not only probative on the issue of disability, but may serve as the basis for establishing disability, even when such pain is unaccompanied by positive clinical findings or other objective medical evidence.” Hankerson v. Harris, 636 F.2d 893, 894 (2d Cir.1980) (internal citations omitted).

The Court finds that the ALJ adequately assisted Plaintiff in developing the record by asking questions regarding the disposition and extent of his subjective symptoms. The ALJ held two hearings, and the 25-page transcript for the second hearing reveals that the ALJ inquired into Plaintiff's typical day, (R. 92); his ability to independently care for himself and do household chores, (id.); the reasons why Plaintiff became unable to work, (id.); his difficulty going up and down stairs, (R. 91); his medications and their effectiveness and side effects, (R. 94-95); his ability to walk, stand and sit, (R. 95-96); his use of a cane, (R. 95); and his ability to lift and carry, (R. 96). The ALJ also asked Plaintiff if he had anything further to add, (id.), and then gave Plaintiff the opportunity to ask the VE questions, (R. 102). “This is not a case where the ALJ disregarded [P]laintiff's testimony or medical evidence and simultaneously failed to inquire further into facts which could support [P]laintiff's contentions, nor is it a case where the ALJ's neglect in pursuing information led to ‘gaps' in the record.” Bosmond v. Apfel, No. 97-CV-4109(RPP), 1998 WL 851508, at *9 (S.D.N.Y. Dec. 8, 1998) (explaining that “Plaintiff was asked about her limitations, and gave answers that conformed with the medical evidence”); see also Simmons v. Colvin, No. 13-CV-1724(KBF), 2014 WL 104811, at *6 (S.D.N.Y. Jan. 8, 2014) (pointing to the ALJ's “numerous questions about plaintiff's condition over the course of a lengthy administrative hearing, amounting to a 33-page transcript”).

The cases Plaintiff cites are distinguishable as they address situations where an ALJ did not consider entire categories of subjective complaints. See Rivera, 379 F.Supp.2d at 606 (“ALJ did not fully evaluate [claimant's] subjective complaints concerning his frequent need to urinate, up to five times an hour…, the pain he experiences…and what effect this would have on his ability to sustain employment.”); Cruz, 912 F.2d at 11 (when claimant mentioned his asthma attacks, “[t]he ALJ failed to probe into the frequency and severity of his attacks, what circumstances had triggered [claimant's] attacks… how often he had been treated or when he had last visited the emergency room… [and] whether the nature of [claimant's] asthma had changed over the years”); Hankerson, 636 F.2d at 894 (ALJ never questioned plaintiff about his subjective symptoms relating to heart pains and shortness of breath); Echevarria v. Sec'y of Health & Hum. Servs., 685 F.2d 751, 755-56 (2d Cir. 1982) (“despite numerous references in the medical records and testimony by [claimant] concerning his subjective symptoms of serious pain, the ALJ did not fully inquire into what specifically caused [claimant] to leave his job or the full degree of the pain and the extent to which it prevents him from working.”); Maldonado v. Comm'r of Soc. Sec., 524 F.Supp.3d 183, 194-95 (S.D.N.Y. 2021) (“The ALJ asked no questions about the intensity of [claimant's] mental impairments, about whether they had gotten worse over time, or about the effectiveness of [claimant's] medications in keeping her symptoms under control. She asked no questions about the ‘three different medications' that [claimant] said she was on.”); Miranda v. Barnhart, No. 04-CV-7257(LAK), 2006 WL 6174093, at *13 (S.D.N.Y. Feb. 1, 2006) (“When addressing [claimant's] asthma, the ALJ did not ask questions relevant to the acquisition of potential new medical records, current or prior treatment, or possible hospitalizations… the ALJ displayed a consistent pattern of neglecting to follow up on pertinent topics of inquiry and failing to ask any questions of the medical expert.”).

Here, Plaintiff does not adequately explain which categories of subjective complaints the ALJ neglected to address and how that information would have added to the record. Plaintiff only provides two examples of areas he believes required follow-up questions: (1) Plaintiff's knees buckling and the difficulty he experiences when he goes down the stairs, and (2) Plaintiff's pain and how it affects his ability to sit and stand. (Pl. Br. at 17). Plaintiff's difficulty with going up and down the stairs is detailed in the record through the medical opinions of Dr. Colden, (R. 57), Dr. Taitt, (R. 340), and Dr. Davy, (R. 428). Furthermore, Plaintiff's pain affecting his ability to sit and stand is addressed in the medical opinions of Dr. Greene, (R. 397-98), Dr. Shtock, (R. 405, 409-10), and Dr. Colden, (R. 58), as well as in Plaintiff's function report, (R. 231, 235). As such, the ALJ asked Plaintiff sufficient questions at the hearing to develop the record on these subjects.

C. The Appeals Council's Consideration of Additional Evidence

Plaintiff argues that the Appeals Council improperly declined to review the new evidence submitted by Plaintiff, namely Dr. Colden's RFC assessment, and did not analyze this new evidence in accordance with the treating physician rule. (Pl. Br. at 20-23). The Commissioner responds that the Appeals Council acted within its discretion in denying Plaintiff's request for review of the ALJ's decision based on Dr. Colden's assessment because its finding that this assessment did not show a reasonable probability of changing the outcome was supported by substantial evidence and did not violate the treating physician rule. (Comm. Br. at 29-30; Comm. Reply Br. at 5).

“Under 20 C.F.R. §§ 404.970(b) and 416.1470(b), a claimant may submit new evidence to the Appeals Council if it is new, material, and relates to the period on or before the ALJ's hearing decision.” Garcia v. Comm'r of Soc. Sec., 208 F.Supp.3d 547, 551-52 (S.D.N.Y. 2016) (internal citations omitted). “Evidence is considered new if not merely cumulative of what is already in the record, and ... material if it is both relevant to the claimant's condition during the time period for which benefits were denied and probative… The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the Secretary to decide claimant's application differently.” Lebow v. Astrue, No. 13-CV-5895(ER)(FM), 2015 WL 1408865, at *5 (S.D.N.Y. Mar. 9, 2015), report and recommendation adopted, 2015 WL 1439270 (S.D.N.Y. Mar. 30, 2015) (internal citations omitted).

“When the new evidence submitted to the Appeals Council includes the opinion of a treating physician, … the Appeals Council must give the same degree of deference to this opinion that an ALJ would be required to give, ” Garcia, 208 F.Supp.3d at 552, and “must give good reasons for the weight accorded to a treating source's medical opinion, ” Lebow, 2015 WL 1408865 at *5. “A reviewing court may not accept appellate counsel's post hoc rationalizations for agency action.” Snell, 177 F.3d at 134.

The additional evidence at issue is a RFC form submitted by Dr. Colden. (R. 57-62). In rejecting this additional evidence, the Appeals Council concluded that it “does not show a reasonable probability that it would change the outcome of the decision.” (R. 2). Given that Dr. Colden qualifies as a treating source, ⁶ “[t]his boilerplate language does not satisfy the Appeals Council's obligation to follow the treating physician rule… [as] [t]he statement does not offer any ‘good reasons' for not giving deference to [the treating physician's] opinions or touch on any of the factors that allow for not giving deference to a treating physician.” Lugo v. Berryhill, 18-CV-2179(JGK)(RWL), 2019 WL 4418649, at *16 (S.D.N.Y. May 8, 2019), report and recommendation adopted, 390 F.Supp.3d 453 (S.D.N.Y. 2019); see also Garcia, 208 F.Supp.3d at 553; Collazo v. Colvin, No. 13-CV-5758(RJS)(HBP), 2015 WL 9690324, at *13 (S.D.N.Y. Dec. 22, 2015), report and recommendation adopted sub nom. Collazo v. Comm'r of Soc. Sec., 2016 WL 127588 (S.D.N.Y. Jan. 11, 2016); Lebow, 2015 WL 1408865, at *6-7, report and recommendation adopted, 2015 WL 1439270 (S.D.N.Y. Mar. 30, 2015). This threadbare statement lacks any reasoning that sheds light on “why the Appeals Council found the proffered evidence immaterial, ” and thus “deprives the Court of its ability to determine whether the Commissioner's decision is supported by substantial evidence.” Nicholson v. Colvin, No. 5:13-CV-00027(MAD), 2014 WL 991827, at *4 (N.D.N.Y. Mar. 13, 2014).

6 Plaintiff saw Dr. Colden for pain management at least 1 to 2 times each month for over a year for treatment of his knee, mid back and lower back pain, and Dr. Colden prescribed him pain medications. (R. 57, 70-71, 86). Thus, he qualifies as a treating source. See 20 C.F.R. §416.927 (a)(2) (“Treating source means your own acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you…We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals…to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s)”); see also Nunez v. Berryhill, 16-Civ.-5078 (HBP), 2017 WL 3495213, at *24 (S.D.N.Y. Aug. 11, 2017) (finding treating relationship where the doctor examined plaintiff three times over the course of three months, provided diagnoses, and prescribed medication).

Further, there is a reasonable possibility that Dr. Colden's RFC form would have caused the ALJ to reassess her decision. The ALJ noted twice in her decision that the record had limited treatment notes, (R. 14, 16), and found that “claimant's statements about the intensity, persistence, and limiting effects of his[] symptoms[] are inconsistent with the objective and other evidence.” (R. 14). Dr. Colden's RFC form provides information based on his prolonged treatment of Plaintiff that could have verified Plaintiff's claims that the ALJ did not find credible and could have filled any gaps in the treatment notes. For instance, Dr. Colden stated that Plaintiff suffers from side effects from his opioid medication like lethargy, fatigue and mental cloudiness that he believes would affect Plaintiff's ability to work or function normally in daily life. (R. 60). The ALJ did not consider the side effects of the medications in her decision or in the RFC⁷ despite Plaintiff raising them at the hearing, and the three consultative examiners make no mention of them. Dr. Colden also opined that Plaintiff can only sit for 1 to 2 hours at a time. (R. 58). Dr. Tranese did not mention Plaintiff's difficulties with prolonged sitting at all, (R. 377-80), Dr. Greene stated that Plaintiff can sit for 4 hours at a time, (R. 397-98), and Dr. Shtock stated he can sit for 30 to 35 minutes at a time, (R. 405, 409-10). Given this discrepancy, which is not addressed at all in the ALJ's decision⁸ and could impact a determination about Plaintiff's ability to do sedentary work, the ALJ should have the benefit of Dr. Colden's opinion as a treating physician. Dr. Colden also concluded that Plaintiff probably could not do other work given his disability, even beyond his previous job, which directly contradicts the VE's testimony and the ALJ's determination. (R. 61). Thus, the new evidence is at the very least “potentially material, ” and should be reviewed by the ALJ on remand. See, e.g., Lugo, 2019 WL 4418649 at *16, report and recommendation adopted, 390 F.Supp.3d 453 (S.D.N.Y. 2019) (remanding and directing Commissioner to consider new evidence that appeared “potentially material”); Lopez v. Comm'r of Soc. Sec., 17-CV-06241(MKB), 2019 WL 1439538, at *15-16 (E.D.N.Y. Mar. 30, 2019) (remanding and directing Commissioner to consider treating source statements that undercut some of the ALJ's conclusions, bolster part of plaintiff's testimony, and lend support to opinions assigned little weight); Gurnett v. Berryhill, 16-CV-955(FPG), 2018 WL 3853387, at *4 (W.D.N.Y. Aug. 14, 2018) (remanding where it was “equally possible” that new evidence either clarified a pre-hearing disability or a more recent onset of a disability and noting that the Appeals Council's “cursory, formulaic rejection…without any legal or factual reasoning [was] insufficient”); Garcia, 208 F.Supp.3d at 554-55 (remanding where the Appeals Council did not appropriately assess treating source records and where the ALJ relied “heavily on the opinion of a consultant”). Thus, I respectfully recommend remanding this matter to the ALJ for her to consider Plaintiff's treating physician's medical opinion.

7 While the Commissioner argues that the side effects are encompassed by the limitation in the VE hypothetical to unskilled work, (Comm. Br. at 28), this limitation was only in one of the hypotheticals to the VE and is not in the ALJ's RFC or discussion.

8 While the Commissioner argues that the VE testified that the three jobs she identified could still be performed even if Plaintiff needed to alternate between sitting and standing at will, (Comm. Br. at 25), this was only in one of the hypotheticals posed to the VE and the ALJ did not explain whether she relied on this testimony in her decision.

D. The ALJ's RFC Assessment

Plaintiff argues that the ALJ's RFC determination is shrouded in legal error because the record does not contain a medical report that aptly demonstrates Plaintiff's ability to do sedentary work. (Pl. Br. at 23). The Commissioner contends that substantial evidence supports the ALJ's RFC finding since the ALJ based her finding on a thorough discussion of the medical records, clinical exam findings, diagnostic imaging and testing, and Plaintiff's testimony and reports, and the ALJ was entitled to weigh this evidence. (Comm. Br. at 25-29; Comm. Reply Br. at 7).

The RFC is an “individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, at *2). The RFC determination is reserved to the Commissioner. Monroe, 676 Fed.Appx. at 8. When determining the RFC, the ALJ considers “a claimant's physical abilities, mental abilities, [and] symptomatology, including pain and other limitations that could interfere with work activities on a regular and continuing basis.” Weather v. Astrue, 32 F.Supp.3d 363, 376 (N.D.N.Y. 2012) (citing 20 C.F.R. § 404.1545(a)). Nevertheless, ALJs are not medical professionals. See Heather R. v. Comm'r of Soc. Sec., 1:19-CV-01555(EAW), 2021 WL 671601, at *3 (W.D.N.Y. Feb. 22, 2021). The ALJ must refrain “from ‘playing doctor' in the sense that [he] may not substitute his own judgment for competent medical opinion.” Quinto v. Berryhill, Civ No. 3:17-CV-00024(JCH), 2017 WL 6017931, at *12 (D. Conn. Dec. 1, 2017) (internal citations omitted). Accordingly, where the record shows that the claimant has more than “minor physical impairments, ” Jaeger-Feathers v. Berryhill, 1:17-CV-06350(JJM), 2019 WL 666949, at *4 (W.D.N.Y. Feb. 19, 2019), an ALJ is not qualified “to assess residual functional capacity on the basis of bare medical findings, ” Kinslow v. Colvin, Civ. No. 5:12-CV-1541(GLS/ESH), 2014 WL 788793, at *5 (N.D.N.Y. Feb. 24, 2014). “Regardless of how many medical source statements the ALJ receives - or the weight he assigns to them - the determination of the claimant's RFC is reserved to the ALJ, who is not required to accept, or follow, any one medical opinion in toto.” Cepeda v. Comm'r of Soc. Sec., No. 19-CV-4936(BCM), 2020 WL 6895256, at *11 (S.D.N.Y. Nov. 24, 2020).

The Court finds that there is not substantial evidence in the record to support the ALJ's determination that Plaintiff is able to do sedentary work. Dr. Greene explicitly stated that Plaintiff is able to lift up to 20 pounds continuously; carry up to 10 pounds frequently; sit for 8 hours in a workday; stand for 2 hours in a workday; and walk for 1 hour in a workday, (R. 397-98), findings consistent with the sedentary definition.⁹ However, Dr. Shtock's consultative examination, to which the ALJ assigned “great weight, ” provides that Plaintiff can only sit for thirty to thirty-five minutes at one time and four hours total in a workday. (R. 409-10). Plaintiff also testified at the hearing that he can stand for approximately five to ten minutes at a time, though sometimes for only one minute, and can sit for about half an hour at a time. (R. 95-96). Despite this contradictory evidence about Plaintiff's ability to sit and stand for long periods of time, the ALJ did not address the discrepancy nor incorporate a sitting or standing limitation in her RFC. Further, although these issues are not raised in Plaintiff's brief, the Commissioner concedes that the ALJ failed to explicitly include in the RFC Plaintiff's need to alternate between sitting and standing. (Comm. Br. at 25).

9 Plaintiff argument that Dr. Greene's consultative examination spoke in “vague terms” about Plaintiff's abilities to sit, stand and walk, and that there is no medical opinion in the record to support Plaintiff's capacity to do sedentary work is belied by the evidence in the record. (Pl. Br. at 23, 25).

For the ALJ to make a proper determination about Plaintiff's RFC to engage in sedentary work, she was required to review evidence that showed whether he “could sit for six hours of an eight hour workday, do a certain amount of walking and standing, and lift up to ten pounds.” Woodford v. Apfel, 93 F.Supp.2d 521, 529 (S.D.N.Y. 2000) (citing 20 C.F.R. § 404.1567). “Under such circumstances, the RFC must be specific as to the frequency of the individual's need to alternate sitting and standing.” Kimberly M. v. Comm'r of Soc. Sec., No. 19-CV-1546 (LJV), 2020 WL 6947346, at *3 (W.D.N.Y. Nov. 25, 2020) (internal citations omitted); see also Falk v. Colvin, No. 15-CIV-3863 (ER)(KNF), 2016 WL 4411423, at *5 (S.D.N.Y. Aug. 18, 2016) (ALJ's RFC assessment was incomplete where “the ALJ made no determination as to the frequency with which Plaintiff would need to alternate between sitting and standing.”). “That is because a claimant's need to alternate among sitting, standing, and walking ‘may erode the occupational base'—for example, by making even sedentary or light work impossible to perform.” Linda H. v. Comm'r of Soc. Sec., No. 19-CV-1244(LJV), 2021 WL 2075437, at *3 (W.D.N.Y. May 24, 2021). Though the Commissioner argues that the vocational expert testified at the hearing that the three jobs she identified could still be performed even if Plaintiff needed to alternate between sitting and standing at will, (Comm. Br. at 25-26), “that does not render the ALJ's error harmless” because while the doctors' limitations specified the number of hours Plaintiff could walk, stand, or sit without interruption, “the sit/stand option about which the VE testified did not specify the frequency with which [Plaintiff] could alternate or whether she would have to spend a specific time in one option or the other.” (R. 100-02); Kimberly M., 2020 WL 6947346 at *4. Because the ALJ did not include any discussion in the RFC about Plaintiff's need to alternate among sitting, standing and walking, and failed to explain why she rejected Dr. Shtock's findings on this issue despite giving his opinion “great weight, ” the Court cannot “determine whether the ALJ considered the limitations or overlooked them altogether.” Id. Accordingly, I respectfully recommend remanding this matter to the ALJ for her to properly consider Plaintiff's ability to sit and stand in the RFC, and the impact this has on Plaintiff's ability to do sedentary work.

Furthermore, Dr. Colden's opinion should be part of the record on remand and the ALJ must explicitly analyze Dr. Colden's treating physician opinion that Plaintiff can sit for less than six hours in an eight-hour workday. See Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (remanding where the ALJ made a determination as to a sedentary RFC but ignored the opinion of the treating physician about Plaintiff's limited ability to sit); see also Robinson v. Chater, No. 94 CIV. 0057 (SHS), 1996 WL 5067, at *5 (S.D.N.Y. Jan. 5, 1996) (same). The Commissioner also concedes that the ALJ did not explicitly consider Plaintiff's alleged side effects of drowsiness from his opioid pain medications in formulating the RFC. (Comm. Br. at 28). I respectfully recommend that on remand, the ALJ also explicitly consider the side effects of Plaintiff's medications in the RFC and evaluate his treating physician's opinion on this issue.

E. ALJ's Step Three Analysis

Plaintiff argues that the ALJ's step three analysis was not supported by substantial evidence because she did not properly evaluate Plaintiff's claim pursuant to the applicable listings for major dysfunction of a joint and disorders of the spine. (Pl. Br. at 26-27). The Commissioner contends that Plaintiff's impairments did not meet or equal a listed impairment because Plaintiff's back and knee injuries did not meet all the required elements of a listed impairment. (Comm. Br. at 23).

“Where the claimant's symptoms, as described in the medical evidence, appear to match those described in the Listings, the ALJ must provide an explanation as to why the claimant failed to meet or equal the Listings. If the ALJ fails to do so, however, the court may look to other portions of the ALJ's decision and to clearly credible evidence in finding that his determination was supported by substantial evidence.” Figueroa v. Comm'r of Soc. Sec., No. 19-CV-6472(MWP), 2020 WL 2393308, at *5 (W.D.N.Y. May 12, 2020) (internal citations omitted). “It is Plaintiff's burden to demonstrate that his disability meets all of the specified medical criteria.” Mercado v. Berryhill, No. 1:15-CV-00282(MAT), 2017 WL 6275726, at *3 (W.D.N.Y. Dec. 11, 2017) (internal citations omitted).

In her decision, the ALJ evaluated whether Plaintiff meets the listing 1.02, major dysfunction of a joint, and 1.04, disorders of the spine. (R.13). The ALJ explained that Plaintiff did not meet the listing for major dysfunction of a joint because there was no evidence of involvement of one major peripheral weight-bearing joint resulting in inability to ambulate effectively, as defined in the regulations. (Id.). Major dysfunction of a joint is defined in the regulations as follows:

Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With:

A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b;

or

B. Involvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively, as defined in 1.00B2c.

20 C.F.R. Part 404, subpart P, Appendix 1, §1.02. “Inability to ambulate effectively” is defined as follows:

an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning (see 1.00J) to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities.

20 C.F.R. Part 404, subpart P, Appendix 1, § 1.00(1). “To ambulate effectively” is defined as follows:

To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the

inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation.

20 C.F.R. Part 404, subpart P, Appendix 1, §1.00(B)(2)(b).

As the Commissioner correctly points out, courts have consistently held that the use of a single cane, as opposed to two canes, does not meet the definition of ambulating ineffectively and thus constitutes ambulatory effectively. See Hilliard v. Colvin, No. 13-CV-1942(AJP), 2013 WL 5863546, at *13 (S.D.N.Y. Oct. 31, 2013); Rivera v. Commissioner of Social Security, No. 15-CV-8439, 2017 WL 120974, *11 (S.D.N.Y. Jan. 12, 2017) (collecting cases); Mercado, 2017 WL 6275726 at *4. “Although the ALJ did not explicitly articulate this reasoning, the absence of express rationale for an ALJ's conclusions does not prevent the court from upholding them as long as the court is able to look to other portions of the ALJ's decision and to credible evidence in finding that the determination was supported by substantial evidence.” Balaguer Perez v. Berryhill, No. 17-CV-3045(JMA), 2019 WL 1324949, at *4 (E.D.N.Y. Mar. 25, 2019) (internal citations omitted). Consequently, I respectfully recommend finding that the ALJ properly concluded that Plaintiff's impairments do not meet the listing for major dysfunction of a joint.

The ALJ also concluded that Plaintiff's impairments do not meet listing 1.04, disorders of the spine because there was no evidence of any of the conditions or symptoms required by the definition. (R. 13). Disorders of spine are defined in the regulations as follows:

Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the

spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine); or

B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours;

or

C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.

20 C.F.R. Part 404, subpart P, Appendix 1, §1.04.

The Court finds that the ALJ correctly concluded that Plaintiff's impairments also do not meet the criteria of the listing for disorders of the spine. There is no evidence in the record, and Plaintiff does not point to any in his memorandum, that Plaintiff suffered from nerve root compression, spinal arachnoiditis or lumbar spinal stenosis that resulted in an inability to ambulate effectively. Though Plaintiff reported spinal stenosis to Dr. Taitt during a visit on June 1, 2015, (R. 339), there is no evidence that this diagnosis was confirmed “on appropriate medically acceptable imaging” and Plaintiff cannot show an inability to ambulate effectively for the reasons discussed above. Further, Plaintiff's doctors noted that he does not show signs of muscle atrophy, (R. 345, 379), or sensory loss, (R. 342, 352, 356, 379, 407), as is required by the definition to accompany any nerve root compression. Thus, I respectfully recommend finding that the ALJ properly concluded that Plaintiff's impairments do not meet the listing for disorders of the spine.

III. CONCLUSION

For the foregoing reasons, I conclude and respectfully recommend denying the Commissioner's motion for judgment on the pleadings, granting Plaintiff's cross-motion for judgment on the pleadings, and remanding this case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Report and Recommendation.

IV. NOTICE

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report and Recommendation to serve and file written objections. See Fed. R. Civ. P. 6(a) and (d) (rules for computing time). A party may respond to another party's objections within fourteen (14) days after being served with a copy. See Fed. R. Civ. P. 72(b)(2). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Nelson S. Román at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at said Courthouse.

Requests for extensions of time to file objections must be made to the Honorable Nelson S. Román and not to the undersigned. Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b), 6(d), 72(b); Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008).