Lightenfield v. Bisignano

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Ashley L.,1
Plaintiff,
v. 5:25-CV-809
(MAD/MJK)
Commissioner of Social Security
Defendant.
_____________________________________________________________________
Ida Comerford Esq., for Plaintiff
Fergus J. Kaiser Esq., Special Asst. U.S. Attorney, for Defendant
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Mae A. D’Agostino, U.S. District Judge:
REPORT-RECOMMENDATION
Ashley L. brought this action under the Social Security Act (42
U.S.C. § 405(g)) seeking judicial review of the Social Security
Commissioner’s final decision denying her application for benefits. (Dkt.
1.). Ashley L. did not consent to the jurisdiction of a Magistrate Judge.
(Dkt. 4). So, the Honorable Mae A. D’Agostino, U.S. District Judge,
referred this matter to the Court for Report and Recommendation. Both
1 This Report-Recommendation will identify the plaintiff using only her first name
and last initial to protect her privacy.
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parties filed briefs (Dkts. 11, 13, 14) which the Court treats as motions
under Fed. R. Civ. P. 12(c), in accordance with General Order 18.
I. PROCEDURAL HISTORY
On August 8, 2022, Ashley L. filed an application for Title XVI
supplemental security income benefits, alleging disability beginning
May 11, 2022. (T. 10).2 The Social Security Administration denied the
claim initially on March 6, 2023, and again upon reconsideration on
October 10, 2023. (Id.). Ashley L. requested a hearing six days later.
(Id.) Administrative Law Judge (“ALJ”) Mary Jane Pelton held a
hearing on June 14, 2024. (T. 36-54). At the hearing, Matthew Nutting
represented Ashley L.. (T. 39). Both Ashley L. and Vocational Expert
Christine Ditrinco testified. (T. 36-54). On July 11, 2024, ALJ Pelton
issued an unfavorable decision. (T. 7). The appeals council denied
review. (T. 1-3).
II. GENERALLY APPLICABLE LAW
A. Disability Standards
2 All page references are to the Administrative Transcript (“T.”) and not the page
numbers assigned by the CM/ECF pagination system.
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To be considered disabled, plaintiffs seeking disability insurance
or supplemental security income benefits must establish that they are
“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 twelve months …” 42 U.S.C.
§ 1382c(a)(3)(A). In addition, plaintiffs’
physical or mental impairment or impairments [must be] of s
uch severity that [they are] not only unable to do [their]
previous work but cannot, considering [their] age, education,
and work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which
[they] live[], or whether a specific job vacancy exists for
[them], or whether [they] would be hired if [they] applied for
work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R.
§§ 404.1520 and 416.920, to evaluate disability insurance and
supplemental security income disability claims.
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If [they are]
not, the [Commissioner] next considers whether the claimant
has a “severe impairment” which significantly limits [their]
physical or mental ability to do basic work activities. If the
claimant suffers such an impairment, the third inquiry is
whether, based solely on medical evidence, the claimant has
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an impairment which meets or equals the criteria of an
impairment listed in Appendix 1 of the regulations. If the
claimant has such an impairment, the [Commissioner] will
consider [them] disabled without considering vocational
factors such as age, education, and work experience …
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant’s severe
impairment, [they have] the residual functional capacity to
perform [their] past work. Finally, if the claimant is unable to
perform [their] past work, the [Commissioner] then
determines whether there is other work which the claimant
can perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see also 20 C.F.R.
§§ 404.1520, 416.920. Plaintiffs have the burden of establishing
disability at the first four steps. See Selian v. Astrue, 708 F.3d 409, 418
(2d Cir. 2013). If they establish that their impairment prevents them
from performing their past work, the burden then shifts to the
Commissioner to prove the final step. Id.
B. Scope of Review
When reviewing a final decision of the Commissioner, courts must
determine whether the correct legal standards were applied and
whether substantial evidence supported the decision. Id. at 417; see also
Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42
U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
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Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). It must be “more
than a scintilla” of evidence scattered throughout the administrative
record. Id. Yet this standard is a very deferential standard of review “—
even more so than the ‘clearly erroneous standard.’” Brault, 683 F.3d at
448. “To determine on appeal whether an ALJ’s findings are supported
by substantial evidence, reviewing courts consider the whole record,
examining the evidence from both sides, because an analysis of the
substantiality of the evidence must also include that which detracts
from its weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258
(2d Cir. 1988). But reviewing courts may not substitute their
interpretation of the administrative record for that of the Commissioner
if the record contains substantial support for the ALJ’s decision. Id.; see
also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
ALJs need not explicitly analyze every piece of conflicting
evidence in the record. See Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d
Cir. 1983); see also Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981)
(“[W]e are unwilling to require an ALJ explicitly to reconcile every
conflicting shred of medical testimony[.]”). But ALJs cannot “‘pick and
choose’ evidence in the record that supports [their] conclusions.” Cruz v.
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Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); see also Fuller v.
Astrue, No. 09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6,
2010).
III. FACTS
The record includes Ashley L.’s medical and mental health
treatment records which the parties are familiar with. The Court will
refer to the pertinent records and the hearing testimony in its analysis
of the parties’ claims as appropriate.
IV. THE ALJ’S DECISION
At step one of the five-step-sequential analysis, ALJ Pelton
determined that Ashley L. has “not engaged in substantial gainful
activity since August 8, 2022, the application date.” (T. 12) (cleaned up).
At step two, ALJ Pelton concluded that Ashley L. “has the
following severe impairments: fracture with rod placement of the right
leg, fractures with metal plate of the right wrist and hand, peripheral
neuropathy, traumatic brain injury, migraine, post-traumatic stress
disorder, depressive disorder, and anxiety disorder.” (Id.) (cleaned up).
At step three, ALJ Pelton determined that Ashley L. “does not
have an impairment, or combination of impairments, that medically
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equals the severity of one of the listed impairments in 20 C.F.R Part
404, Subpart. P, Appendix. 1.” (T. 13.) (internal citations omitted).
Next, ALJ Pelton discussed the “paragraph B” criteria. (T. 15-16).
“To satisfy the paragraph B criteria,” mental impairments “must result
in one extreme limitation or two marked limitations in a broad area of
functioning.” See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A)(2)(b)
(cleaned up). The four broad areas of mental functioning are: (1)
understanding, remembering, or applying information; (2) interacting
with others; (3) maintaining concentration, persistence, or pace; and (4)
adapting and managing oneself. See 20 C.F.R. pt. 404, subpt. P, app. 1,
§ 12.00(C). Here, ALJ Pelton found that Ashley L. did not meet the
“paragraph B” criteria because Ashley L. had mild limitations in
understanding, remembering, or applying information, no limitation in
interacting with others, moderate limitations in maintaining
concentration, persistence, or pace, and mild limitations in adapting
and managing oneself. (T. 15-16).
The ALJ also considered the “paragraph C” criteria. (T. 16). The
“paragraph C” criteria require a documented medical history of the
existence of the disorder over a period of at least two years, with
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evidence of both (a) medical treatment, mental health therapy,
psychosocial support(s), or a highly structured setting(s) that is ongoing
and that diminishes the symptoms and signs of the mental disorder;
and (b) marginal adjustment, that is, minimal capacity to adapt to
changes in environment or to demands that are not already part of daily
life. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A)(2)(c). Here, ALJ
Pelton noted that the “paragraph C” criteria were not met. (Id.).
After this, ALJ Greisler determined that Ashley L. had the
residual function capacity (“RFC”) to perform:
sedentary work as defined in 20 CFR 416.967(a) except she
can lift and carry 10 pounds occasionally and less than 10
pounds frequently, can sit with normal breaks for a total of 6
hours in an 8 hour workday, and stand and/or walk with
normal breaks for a total of 2 hours in an 8 hour workday. She
can never climb ladders, ropes, or scaffolds, occasionally climb
ramps or stairs. She can occasionally balance as defined by
the Selected Characteristics of Occupations, occasionally
stoop, kneel, or crouch, she should never crawl. She should
avoid exposure to hazards, such as unprotected heights and
dangerous moving machinery. She can understand,
remember, and carry out simple instructions. She can use
judgment to make simple work-related decisions. She should
work in a job with occasional changes in the routine work
setting. She cannot perform work requiring a specific
production rate or perform work which requires hourly
quotas. She could have occasional interaction with coworkers,
supervisors, and the public.
(T. 17).
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To make this finding, ALJ Pelton considered “the medical
opinion(s) and prior administrative medical finding(s)” pursuant to 20
C.F.R. § 416.920c. (Id.).
At step four, ALJ Pelton reasoned that Ashley L. “has no past
relevant work”, is within the “younger individual age 18-44” category,
has “limited education,” and “transferability of skills is not an issue.”
(T. 24).
Finally, at step five, ALJ Pelton concluded that “considering”
Ashley L.’s “age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national
economy that” she “can perform.” (T. 25). Accordingly, ALJ Pelton
determined that Ashley L. is not disabled as defined by the Social
Security Act. (T. 26).
V. ISSUES IN CONTENTION
Ashley L.’s argument is confusing. At first, she seems to argue
that substantial evidence does not support ALJ Pelton’s decision. But in
the argument section of her brief, Ashley L. focuses on ALJ Pelton’s
supportability and consistency analyses as to Matthew Grier, D.O.
Compare (Pl. Br. at pg. 1) with (Pl. Br. at pgs. 11-18). In contrast, the
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Commissioner argues that substantial evidence supports ALJ Pelton’s
decision. (Def. Br. at pgs. 5-11).
VI. DISCUSSION
The Court recommends the District Court reverse and remand ALJ
Pelton’s decision. Unsure whether Ashley L.’s claim is a substantial
evidence or legal error claim, the Court analyzes the claim under both
standards. And under either standard, the Court finds serious errors
with ALJ Pelton’s decision.
A. ALJ Pelton erred when performing the supportability and
consistency analyses on Dr. Angelotti’s and Dr. Grier’s
opinions and those errors were not harmless.
The Court recommends the District Court find that ALJ Pelton
committed legal error when analyzing Ashley L.’s claim. When
reviewing an agency’s decision, the reviewing court must determine if
the ALJ properly applied the agency’s regulations. Here, ALJ Pelton
incorrectly performed the supportability and consistency analyses as to
M. Vazquez Gonzalez, M.D.’s, Angelotti, M.D.’s, and Dr. Grier’s
opinions. Those errors meaningfully harmed the analysis. As a result,
the District Court should reverse and remand ALJ Pelton’s decision.
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ALJs “must consider all medical opinions and evaluate their
persuasiveness based on their supportability and consistency, the
author’s relationship with the claimant and specialization, and other
factors.” Tyler W. v. Comm’r of Soc. Sec., No. 22-CV-01345 (CFH), 2024
WL 1075209, at *7 (N.D.N.Y. Mar. 12, 2024) (cleaned up).
“The two most important factors for determining the persuasiveness of
medical opinions are consistency and supportability[.]”Stephanie F. v.
Kijakazi, No. 20-CV-1528 (BKS), 2022 WL 3355964, at *9 (N.D.N.Y.
Aug. 15, 2022). Because that’s so, ALJs must “explain how [they]
considered the supportability and consistency factors” for a medical
opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).
“Supportability” means that “the more relevant the objective
medical evidence and supporting explanations presented by a medical
source are to support his or her medical opinion(s) or prior
administrative medical finding(s), the more persuasive the medical
opinions or prior administrative medical finding(s) will be.” Id. §§
404.1520c(c)(1), 416.920c(c)(1) (cleaned up). “Consistency” means that
“the more consistent a medical opinion(s) or prior administrative
medical finding(s) is with the evidence from other medical sources and
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nonmedical sources in the claim, the more persuasive the medical
opinion(s) or prior administrative medical finding(s) will be.” Id. §§
404.1520c(c)(2), 416.920c(c)(2). In plain English, supportability is an
internal check—examining whether the medical source references
medical evidence that comes from the medical source. Consistency is an
external check—examining whether the medical sources’ opinion is
similar, or dissimilar, to other medical and non-medical sources.
ALJs’ “failure to explain the supportability and consistency of the
medical opinions in the record is procedural error.” Stephanie F., 2022
WL 3355964, at *9. And procedural errors are subject to harmless error
review. See id; see also Loucks v. Kijakazi, No. 21-CV-1749, 2022 WL
2189293, at *2 (2d. Cir. 2022) (summary order).
Dr. Gonzalez—who reviewed an incomplete medical record—
opined that Ashely can: occasionally lift 10 pounds, frequently lift less
than 10 pounds, stand and/or walk with normal breaks for 2 hours, sit
with normal breaks for more than 6 hours in an 8-hour-work day, never
climb ladders, ropes or scaffolds, occasionally climb ramps, stairs,
balance, stoop, kneel, crouch, and crawl. (T. 65-66).
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After reviewing the entire record, Dr. Angelotti, opined that
Ashely can: occasionally lift and/or carry 20 pounds, frequently lift
and/or carry 10 pounds, stand and/or walk with normal breaks for 4
hours, sit with normal breaks for more 6 hours in an 8-hour-work day,
frequently climb ramps, stairs, balance, and stoop, and occasionally,
climb ladders, ropes, scaffolds, kneel, crouch, and crawl. (T. 81).
In April 2024, Dr. Grier—who treated Ashley L. at least once—
opined that Ashley L. can: rarely lift and/or carry 50 pounds,
occasionally lift and/or carry 20 pounds, and frequently lift/and or carry
10 pounds, stand/walk with normal breaks for less than 2 hours, sit
with normal breaks for at least 6 hours in an 8-hour-workday,
frequently twist, occasionally climb ladders and stairs, rarely crouch or
squat, and never climb ladders. (T. 1948-49).
ALJ Pelton erred when performing the consistency analysis on Dr.
Gonzalez’s opinion. ALJ Pelton found Dr. Gonzalez’s findings “are
consistent with the objective record.” (T. 23). And that statement was
the extent of the consistency analysis. ALJ Pelton reasoned that “Dr.
Gonzalez supported [his] findings with a review of the evidence
available to [him] at that time as well as a narrative explaining the
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prior administrative medical findings and providing references to the
objective medical record.” (T. 24.). But Dr. Gonzalez’s opinion is
inconsistent with the record in certain respects. Both Dr. Angelotti and
Dr. Grier opined that Ashley L. could occasionally lift and/or carry 20
pounds and frequently lift/and or carry 10 pounds (T. 81, 1949). Yet Dr.
Gonzalez opined that Ashley L. could occasionally lift 10 pounds and
frequently lift less than 10 pounds. (T. 65). This inconsistency makes
sense in context. As ALJ Pelton implicitly noted, Dr. Gonzalez did not
have all evidence. See. (T. 23) (“Dr. Gonzalez supported the findings
with a review of the evidence available to [him at] that time”) (emphasis
added). Considering that Dr. Gonzalez did not have all the information,
it makes sense for ALJ Pelton to discount Dr. Gonzalez’s testimony. See,
e.g., Seth M. v. Comm’r of Soc. Sec., No. 1:24-CV-00230 (AJB/ML), 2025
WL 1089515, at *8 (N.D.N.Y. Jan. 30, 2025) (cleaned up) (noting that
“[t]he ALJ found these opinions partially persuasive because their
‘opinions were based on a mere review of the medical record, which was
incomplete at the time.’”); see also Martha B. Z. v. Comm’r of Soc. Sec.,
No. 19-CV-06494, 2021 WL 11705678, at *5 (W.D.N.Y. Jan. 15, 2021)
(noting “medical source opinions that are. . . based on an incomplete
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medical record’ may not be substantial evidence to support an ALJ
finding” unless those “opinions are supported by substantially similar
findings in treatment notes and other opinions in the record.”).
ALJ Pelton also erred when performing the supportability
analysis on Dr. Gonzalez’s opinion. ALJ Pelton found Dr. Gonzalez’s
supported because Ashley L. “was in a motor vehicle accident which
crushed her right leg and required placement of a metal rod in an open
reduction internal fixation surgery on her leg and right-hand splint and
metal plate to treat them.” (T. 23). Put differently, the “objective
evidence” ALJ Pelton proffers in her supportability analysis of Dr.
Gonzalez’s opinion is the fact of the accident and the fact of the surgery.
(T. 23). But that proffered evidence is inconsistent with ALJ Pelton’s
decision. When rejecting Ashley L.’s allegations, ALJ Pelton reasoned:
treatment notes indicate that the claimant was walking and
did not attend the physical therapy prescribed by treating
medical service providers (Ex. 2F/8, 8F/14). It is not
unreasonable to expect that an individual who experienced
limitations to the extent alleged by the claimant would utilize
the remedies made available to them. Yet, this is consistent
with recovery are notations by treating medical service
providers including “looks excellent” and “made [a] very nice
recovery” and has been walking on her tibia now for several
months and the claimant was “doing well overall” (Ex. 2F/8,
8F/14, 17). Treatment notes indicated normal sensation,
improved active range of motion and passive range of motion,
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and treating medical service providers encouraged exercise as
part of her treatment (Ex. 17F/3, 6, 7, 12, 8F/14).
(T. 18).
On one hand ALJ Pelton touts the accident and surgery as a basis
to find that Dr. Gonzalez’s opinion is supported, even though Dr.
Gonzalez did not have all the records. (T. 23). But on the other hand,
ALJ Pelton marshals evidence to show that Ashley L. can do more than
she says she can. (T. 18). In essence, ALJ Pelton played doctor, which
she is prohibited from doing. See Javon W. v. Comm’r of Soc. Sec., 629
F. Supp. 3d 62, 67 (W.D.N.Y. 2022) (“An ALJ is prohibited from ‘playing
doctor’ in the sense that an ALJ may not substitute [her] own judgment
for competent medical opinion.”). At bottom, ALJ Pelton’s analysis of
Dr. Gonzalez’s “opinion fails to sufficiently explain the basis for
adopting the state agency consultant’s opinion, and rejecting the” two
“other opinions[.]”Amber H. v. Saul, No. 3:20-CV-490 (ATB), 2021 WL
2076219, at *6 (N.D.N.Y. May 24, 2021).
ALJ Pelton erred when performing the supportability analysis on
Dr. Angelotti’s opinion. For exactly the same reason ALJ Pelton found
Dr. Gonzalez’s opinion supported, ALJ Pelton found Dr. Angelotti’s
opinion unpersuasive. (T. 23). ALJ Pelton’s explanation was only
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“evidence suggests that greater limitations than those stated by Dr.
Angelotti are warranted.” (Id.). The ALJ neither explains what
evidence—other than the accident and surgery—supports greater
limitations nor cites evidence in the record to support that assertion.
(Id.). That is a violation of the articulation requirement. See Stephanie
F., 2022 WL 3355964, at *10 (N.D.N.Y. Aug. 15, 2022) (“[T]he ALJ’s
conclusory statement that [the provider's] conclusions ‘are not
consistent with the overall medical evidence’ is not an adequate
articulation of the consistency factor.”).
Further cutting against ALJ Pelton’s supportability analysis of
Dr. Angelotti’s opinion is ALJ Pelton’s discussion of Ashley L.’s hand.
When analyzing the record as to Ashley L.’s hand ALJ Pelton noted
that:
At her consultative examination in January 2023, [Ashley
L.’s] hand and finger dexterity was intact, her grip strength
was rated 5 out of a possible 5, and she was able to zip and
button with both her right hand and her left hand, and she
was able to tie a bow [T. 1309-10]. Additionally, the claimant
reported that she is able to drive a car, a task which generally
requires the ability to push and pull with one’s upper
extremities to open or close a car door, to reach for and grasp
a steering wheel, and to operate dashboard controls, the
ability to reach to use a seatbelt [T. 234, 1592]. She also
reported that she is able to perform tasks that generally
require the use of one’s upper extremities, including cooking,
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cleaning, and doing laundry [T. 1308]. Overall, such evidence
suggests that the claimant is not limited to the extent alleged
by fractures with metal plate of the right wrist and hand.
(T. 19).
Like before, ALJ Pelton marshals evidence to prove that Ashley
L.’s hand is working in one section of her decision. (Id.). But when
analyzing Dr. Angelotti’s opinion, ALJ Pelton claims that the simple
fact of the hand injury is enough to reject Dr. Angelotti’s opinion. (T.
23). That cannot be right.
ALJ Pelton’s supportability and consistency analyses of Dr Grier’s
opinion is confusing. ALJ Pelton claimed that Dr. Grier’s opinion “is
somewhat speculative . . . because the findings of Dr. Grier are
consistent with the objective record in part.” (T. 24). Frankly this
sentence makes no sense, and this Court cannot glean what the ALJ
meant. The Commissioner tries to wave this sentence away by arguing
that ALJ Pelton “clearly intended to state that the opinion was
inconsistent with the record” but that also makes no sense. (Def. Br. at
pg. 9). Reading that sentence the way the Commissioner does, ALJ
Pelton’s statement is: Dr. Grier’s opinion “is a somewhat speculative
opinion because the findings of Dr. Grier are [in]consistent with the
objective record in part.” (T. 24). But ALJ Pelton never identifies what
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is inconsistent—as she must. Kalieka D.B. v. Comm’r of Soc. Sec., No.
24-CV-371 (DNH/PJE) 2025 WL 2933343, at 6* (N.D.N.Y. Aug. 25,
2025) (“The ALJ must expressly explain how [they] considered the
supportability and consistency factors for a medical opinion.”) (cleaned
up). She again trots out Ashely’s accident and surgery as evidence of
greater limitations. (T. 24.). But just like the supportability analysis of
Dr. Angelotti’s opinion, ALJ Pelton’s analysis never identifies objective
evidence to support her assertion. (Id.); see also Tyler W., 2024 WL
1075209 at *11, (N.D.N.Y. Mar. 12, 2024) (remanding where “the ALJ
summarily concluded that [the provider]’s opinion was poorly supported
and speculative,” because “such conclusory statements are insufficient
to meet the articulation requirements of the regulations.”) (cleaned up).
* * *
All in all, the Court recommends that the District Court find that
ALJ Pelton improperly performed the supportability and consistency
analyses as to opinions of Drs. Gonzalez, Angelotti, and Grier. To start,
this Court cannot glean why the ALJ determined that Dr. Gonzalez’s
opinion was the only opinion consistent with the record. Compare (T.
23) (“The undersigned finds the prior administrative medical findings of
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Dr. Gonzalez are consistent with the objective record.”) with Ricky L. v.
Comm’r of Soc. Sec., No. 20-CV-7102-FPG, 2022 WL 2306965, at *3
(W.D.N.Y. June 27, 2022) (“Where an ALJ merely states that an
examining physician’s opinion is not consistent with the overall medical
evidence, he has failed to adequately explain his conclusions regarding
the consistency factor.” (cleaned up)). To the extent the Commissioner
can argue that ALJ Pelton’s proffered example is enough, this Court
urges the District Court to reject that argument. The example ALJ
Pelton uses to support her supportability and consistency analyses of
Dr. Gonzalez’s opinion is the fact of the accident and the injuries—not
medical issues that stem from the accident. (T. 23). ALJ Pelton also
uses that same reasoning to reject the findings of Drs. Angelotti and
Grier. See (T. 23-24). In essence, ALJ Pelton rejected the findings of
doctors who reviewed all the medical records and treated Ashley L.—
and came to similar findings—only because of the accident. That
reasoning cannot stand. That is by definition playing doctor, which the
ALJ is also prohibited from doing. See Javon W., 629 F. Supp. 3d at 67.
To be sure, if Ashley L. argued that she is disabled simply because of
her accident, ALJ Pelton would have rightly rejected that argument.
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Adding these errors together, the District Court should find that the
ALJ failed to properly apply the regulations.
ALJ Pelton’s legal errors were not harmless. Here, the ALJ
ignored the regulations, played doctor, and crafted an RFC without
support. Cf. Laura C. v. Comm’r of Soc. Sec., 529 F. Supp. 3d 64, 71
(W.D.N.Y. 2021) (finding that meaningful judicial review was precluded
when the Court was “left to speculate” about the ALJ's reasoning). And
for those reasons (and those explained below) the Court recommends
the District Court find that the ALJ’s errors were not harmless.
B. Substantial evidence does not support ALJ Pelton’s
decision because the ALJ failed to include evidence that
would have changed the RFC.
If the District Court disagrees with the above analysis, it should
view Ashley L.’s claim as a substantial evidence claim and rule against
the Commissioner. When reviewing an agency’s decision, the reviewing
court must determine if substantial evidence supports the ALJ’s
decision. Here, ALJ Pelton did not meaningfully engage with the
evidence surrounding Ashley L.’s need for a cane, did not identify how
her Class III obesity interfered with her ability to walk, cherry picked
evidence, and did not engage with evidence that supported Ashley L.’s
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claim. As a result, the Court recommends the District Court find that
substantial evidence does not support ALJ Pelton’s decision.
Viewing Ashley L.’s claim as a substantial evidence claim, the
Court comes to the same recommendation; the claim should be
remanded.
ALJ Pelton did not create a logical bridge when rejecting Dr.
Grier’s opinion that Ashley L. needed a cane. In her decision, ALJ
Pelton reasoned that Dr. Grier’s opinion that Ashely “must use a cane
to ambulate but could still perform light exertional level work.” (T. 24)
(cleaned up); see also (T. 1949). But the record indicates that a cane is a
medical necessity. In April 2024, Dr. Grier opined that Ashley L. needed
to use a cane. (T. 1949). Similarly, January 2024, medical notes
identified that Ashley L. had an antalgic gait on the right “with
diminished time in stance phase on right,” a “diminished step off on
right foot,” and “limited dorsiflexion on right.” (T. 2521). Like Dr Grier,
in January 2023, Elke Lorensen, M.D.—a consultative examiner who
assessed Ashley L.—noted that Ashley L.’s “gait is abnormal, she walks
with a moderate to marked limp” and “the use of the cane is medically
necessary.” (T. 1308). Dr. Lorensen also opined that using a cane
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changed Ashley L.’s moderate to marked limp into a moderate limp. (T.
1308). More to the point, medical records showed that Ashley L.’s
“mobility limitation cannot be sufficiently resolved by the use of an
appropriately fitted cane or walker.” (T. 472). And Ashley L., in her
function report, noted that when she is shopping “someone always has
to come help” her and she uses “the scooters to drive around” the
“store.” (T. 234). Beyond that, in 2022, Ashely needed a gait belt and
platform walker to improve mobility. (T. 1355). In sum, the record
provides ample support for the medical necessity of a cane.
Yet all ALJ Pelton relies on when rejecting the medical necessity
of a cane is Ashley L.’s ability to drive. (T. 18). But Ashley L. testified
that she only drives to doctor appointments and only does so once or
twice a month. (T. 42). In fact, Ashley L. uses medical cabs to transport
her to and from most appointments. See (T. 48). ALJ Pelton’s reasoning
is a catch-22. ALJ Pelton penalizes Ashely for the way she travels to her
appointments and for the fact that she did not travel to some
appointments. (T. 18, 24). Altogether, ALJ Pelton’s decision to discount
Ashley L.’s cane use is error. Cf. Rowe v. Berryhill, No. 1:17-CV-00208,
2018 WL 4233702, at *4 (W.D.N.Y. Sept. 6, 2018) (finding that “the
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ALJ's discussion of [the] [p]laintiff's use of the cane inadequate[,]”
where a “discharge summary noted the cane should be used to assist
with ambulation for four weeks[,]” and “the record contains several
instances where Plaintiff's range of motion was limited[.]”).
The Court cannot glean why ALJ Pelton rejected two cane
opinions. Considering (1) Ashley L.’s Class III obesity—Ashley L. is 5’0,
247 pounds, with 43.07% of body fat—(2) Ashley L.’s abnormal gait,
(3) opinions from two doctors who assessed Ashley L. and determined
that she needed a cane, and (4) the surgical repairs to Ashley L.’s leg,
it’s hard to understand why ALJ Pelton rejected Dr. Grier’s opinion that
Ashley L. needed a cane. See Gabriel A. v. Comm’r of Soc. Sec., No. 1:24-
CV-00389, 2025 WL 2653116, at *7 (W.D.N.Y. Sept. 16, 2025) (reversing
and remanding the ALJ’s decision because the ALJ failed to build a
logical bridge when improperly considering the plaintiff’s need for a
cane).3 Worse still, when analyzing Ashley L.’s obesity ALJ Pelton only
notes that “the record contains a general lack of evidence that would
3 “Class III obesity, formerly known as morbid obesity, is a complex chronic disease
in which you have a body mass index (BMI) of 40 or higher.”
Cleveland Clinic, Class III Obesity (Formerly Known as Morbid Obesity),
https://my.clevelandclinic.org/health/diseases/21989-class-iii-obesity-formerly-
known-as-morbid-obesity (last visited Mar. 11, 2026).
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indicate that the claimant experiences exertional or non-exertional
limitations specifically due to obesity.” (Id.). But it seems obvious that
Class III obesity affects an individual’s ability to ambulate. Cf. Rivera v.
Saul, No. 3:19-CV-00944, 2020 WL 13551953, at *13 (D. Conn. July 28,
2020) (“The ALJ concluded that Rivera’s BMI, which ranged from the
high fifties up to sixty, constituted morbid obesity and restricted his
ability to undergo hip surgery.”).
Adding to the list of errors, ALJ Pelton cherry picked evidence.
ALJ Pelton ignores Dr. Lorensen’s statement that a cane is medically
necessary. (T. 23-4). ALJ Pelton references medical records, which state
that Ashley L. was not attending physical therapy, yet she ignores any
discussion of the medical records which detail that Ashley L. engaged in
physical therapy for her right leg and continued to participate in
physical therapy. (T. 24) citing (T. 306); (T. 1321, 2517). Worse, when
ALJ Pelton asserted Ashley L. “did not attend the physical therapy
prescribed,” she cited a record which notes that Ashley L. “has
participated in physical therapy for over 4 weeks without improvement
of pain or knee instability. Symptoms have not improved with rest,
elevation or ice.” (T. 24, 1325). Put differently, ALJ Pelton ignored more
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recent evidence, chose evidence that supported her position, and relied
on cherry picked evidence. That is improper. See, e.g., Pamela P. v.
Saul, No. 19-CV-575 (DJS), 2020 WL 2561106, at *5 (N.D.N.Y. May 20,
2020) (remanding the ALJ’s decision where “[a] careful review of the
record reveals that the ALJ’s opinion itself cherry picks from the record
to place Plaintiff’s overall mental functioning in the best possible
light.”)
Beyond that, ALJ Pelton did not meaningfully engage with
evidence that supports Ashley L.’s claim. The record is replete with
evidence that Ashley L. suffers from a lower leg injury which has
severely limited her mobility even though she participates in physical
therapy. See, e.g., (T. 2516) (“Her main complaint today is right ankle
pain. [Ashley L.] states that [her ankle] actually started getting worse
after her delivery” and “she has a constant burning tingling pain in her
right foot and ankle.”); (T. 2521) (“Right lower leg: swelling, deformity[,]
and laceration present . . . [d]ecreased range of motion with dorsiflexion
passive and active.”); (T. 1321) (“Right ankle has burning pain to mid
shin, right knee is sharp stabbing pain.”); (T. 1929) (“location of
numbness is right lower leg.”). Still, ALJ Pelton claims that Ashley L.
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“is not limited to the extent alleged by fracture with rod placement of
the right leg” because Ashley L. “reported the ability to drive[.]” (T. 18).
That reasoning cannot withstand any scrutiny.
The Commissioner’s two possible objections cannot cure ALJ
Pelton’s litany of errors. First, the Commissioner can argue that ALJ
Pelton accounted for Ashely’s leg issues by finding Drs. Angelotti’s and
Grier’s opinions unpersuasive and reasoning that evidence suggests
greater limitations than Drs. Angelotti’s and Grier’s opinions. (T. 23,
24). Second, the Commissioner can argue that ALJ Pelton accounted for
Ashely’s leg issues by fashioning an RFC that limited Ashley L. to never
crawling, climbing ladders, ropes, or scaffolds, and occasionally climbing
ramps or stairs, stooping, kneeling, and crouching. (T. 17).
Both arguments suffer from the same two defects. First, the
argument is procedurally defective because it is a post-hoc
rationalization of the ALJ Pelton’s decision. And it has long been
understood that reviewing courts “may not accept appellate counsel’s
post hoc rationalizations for agency decisions.” Terrence F. v. Comm’r of
Soc. Sec. No. 20-CV-1304 (ATB), 2022 WL 1203074 at *5 (cleaned up)
(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156,
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168 (1962)). Second, ALJ Pelton did not show her work. But an ALJ’s
decision must create “an accurate and logical bridge from the evidence
to” their “conclusion.” Shanaye S.M. v. Comm’r of Soc. Sec., No: 18-CV-
0217 (TWD), 2019 WL 1988672, at *4 (N.D.N.Y. May 6, 2019) (cleaned
up). Indeed, “ALJs written decisions must be sufficiently detailed so
courts can conduct an adequate review of their “findings.” John S. v.
Bisignano, No. 24-CV-334 (BKS/MJK), 2025 WL 2201107, at *6
(N.D.N.Y. June 13, 2025) (cleaned up). Yet ALJ Pelton’s decision does
not create the logical bridge necessary for a Court to determine that she
fashioned the physical limitations she because of the Ashely leg issues.
* * *
To end, this Court recommends finding that substantial evidence
does not support ALJ Pelton’s decision. ALJ Pelton did not
meaningfully engage with the evidence surrounding Ashley L.’s need for
a cane, did not identify how her Class III obesity interfered with her
ability to walk, cherry picked evidence, and did not engage with
evidence that supported Ashley L.’s claim. Frankly, ALJ Pelton’s
decision is far too riddled with error to recommend anything but
reversal. So this Court does so.
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VII CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that Ashley L.’s motion for judgment on the
pleadings (Dkt. 11) be GRANTED; and if the District Court disagrees
with that recommendation, it is alternatively
RECOMMENDED, that the Ashley L.’s motion for judgment on
the pleadings (Dkt. 11) be GRANTED because substantial evidence
does not support ALJ Pelton’s decision; and it is further
RECOMMENDED, that the decision of the Commissioner be
REVERSED and REMANDED.
In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have 14 days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk of the
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 6(a), 6(e), 72.
Dated: March 18, 2026 _____________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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