Sciarrino v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
SANDRA S.,
Plaintiff,
v. 	5:24-CV-0116
(AMN/ML)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
OLINSKY LAW GROUP 	HOWARD D. OLINSKY, ESQ.
Attorneys for Plaintiff
250 S. Clinton Street, Suite 210
Syracuse, New York 13202
U.S. SOCIAL SECURITY ADMIN. 	FERGUS J. KAISER, ESQ.
Counsel for Defendant
6401 Security Boulevard
Baltimore, Maryland 21235
MIROSLAV LOVRIC, United States Magistrate Judge
REPORT-RECOMMENDATION
Plaintiff Sandra S. (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g) seeking
judicial review of a final decision of the Commissioner of Social Security (“Defendant” or
“Commissioner”) denying her application for Disability Insurance Benefits (“DIB”). (Dkt. No.
1.) This matter was referred to me for Report and Recommendation by the Honorable Anne M.
Nardacci, United States District Court Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule
72.3(d). (Dkt. Nos. 3, 4.) This case has proceeded in accordance with General Order 18.
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Currently before this Court are Plaintiff’s motion for judgment on the pleadings and
Defendant’s motion for judgment on the pleadings. (Dkt. Nos. 12, 14, 15.) For the reasons set
forth below, this Court recommends that the District Court grant Plaintiff’s motion for judgment
on the pleadings, deny Defendant’s motion for judgment on the pleadings, and remand the
Commissioner’s decision for calculation and payment of benefits. If the District Court elects not
to adopt the recommendation for the calculation and payment of benefits, this Court recommends
that the matter be remanded for expedited administrative review, in light of the nearly ten years
that Plaintiff’s application has been pending, Plaintiff’s age, and the likelihood of undue hardship
from further delay.
I. 	PROCEDURAL HISTORY
On December 22, 2015, Plaintiff protectively filed an application for DIB, alleging
disability dating from October 9, 2012. (Administrative Transcript (“T.”) 217-218.) Her
application was denied initially on February 12, 2016, and her request for a hearing was granted.
(T. 146-165, 179-185.) On February 5, 2018, Plaintiff appeared without counsel before
Administrative Law Judge (“ALJ”) John M. Lischak. (T. 48-69.) ALJ Lischak adjourned the
proceeding to allow Plaintiff an opportunity to seek representation. (T. 65-69.)
On June 12, 2018, Plaintiff, who was still unrepresented, testified before ALJ Lischak.
(T. 70-145.) ALJ Lischak issued an unfavorable decision on May 1, 2019.1 (T. 14-41.) The
Appeals Council denied Plaintiff’s request for review on January 26, 2021, and Plaintiff, now
represented by counsel, filed a complaint with the Northern District of New York on March 24,
1 During the interim between the June 12, 2018 hearing and the May 1, 2019 decision,
ALJ Lischak solicited and obtained additional medical evidence, including treatment notes and
the opinion of an independent medical expert. (T. 17-18, 348-383.)
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2021 challenging the Commissioner’s final decision. (T. 1-6, 1273-1279.)
While that litigation was pending, the parties agreed to a stipulation remanding Plaintiff’s
disability claim, and I ordered remand to the Appeals Council on February 17, 2022. (T. 1280-
1283.) On March 22, 2022, the Appeals Council remanded Plaintiff’s disability claim to a new
ALJ, John P. Ramos.2 (T. 1284-1288.) ALJ Ramos3 held a telephonic hearing on September 29,
2022 to hear testimony from Plaintiff and vocational expert (“VE”) Christina Boardman. (T.
1213-1238.) Plaintiff was represented by counsel at this proceeding. (T. 1215.)
ALJ Ramos issued an unfavorable decision on October 25, 2022. (T. 1178-1212.)
Plaintiff bypassed written exceptions, and the Appeals Council did not assume jurisdiction
within sixty days, making the ALJ’s determination the final decision of the Commissioner. See
20 C.F.R. § 416.1484(c),(d). Plaintiff filed a new complaint in the Northern District of New
York on December 28, 2022.
Once again, the parties agreed to a stipulation remanding Plaintiff’s disability claim, and
Chief District Court Judge Brenda K. Sannes ordered remand to the Appeals Council on
November 15, 2023. (T. 2089-2092.) On January 3, 2024, the Appeals Council remanded
Plaintiff’s disability claim back to ALJ Ramos. (T. 2093-2098.) The ALJ held a telephonic
hearing on July 2, 2024 to hear testimony from Plaintiff and VE Christine DiTrinco. (T. 2032-
2 The Appeals Council’s remand to a different ALJ appears intended to comply with the
United States Supreme Court’s decision in Carr v. Saul, 593 U.S. 83, 141 S. Ct. 1352 (2021)
regarding proper appointment of administrative law judges. (T. 1286.) The Appeals Council did
not identify any substantive defects in ALJ Lischak’s decision or provide specific direction to
ALJ Ramos regarding the reevaluation of Plaintiff’s claim.
3 Given the lengthy procedural history and the need for narrative clarity, this Court will
frequently identify ALJ Lischak and ALJ Ramos by name. When this Court uses the term “the
ALJ,” it will only be referring to ALJ Ramos, whose 2024 disability determination is the subject
of this proceeding.
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2053.)
ALJ Ramos issued another unfavorable decision on July 17, 2024. (T. 1992-2031.)
Plaintiff again bypassed written exceptions, and the Appeals Council again elected not to assume
jurisdiction within sixty days. Plaintiff then timely filed the present complaint on September 16,
2024. (Dkt. No. 1.)
II. 	GENERALLY APPLICABLE LAW
A. 	Scope of Review
In reviewing a final decision of the Commissioner, a court must determine whether the
correct legal standards were applied and whether substantial evidence supports the decision.
Featherly v. Astrue, 793 F. Supp. 2d 627, 630 (W.D.N.Y. 2011) (citations omitted); Rosado v.
Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Johnson v. Bowen, 817 F.2d 983, 985
(2d Cir. 1987)). A reviewing court may not affirm an ALJ’s decision if it reasonably doubts
whether the proper legal standards were applied, even if the decision appears to be supported by
substantial evidence. Johnson, 817 F.2d at 986.
A court’s factual review of the Commissioner’s final decision is limited to the
determination of whether there is substantial evidence in the record to support the decision. 42
U.S.C. § 405(g) (2015); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). To facilitate the
court’s review, an ALJ must set forth the crucial factors justifying his or her findings with
sufficient specificity to allow a court to determine whether substantial evidence supports the
decision. Roat v. Barnhart, 717 F. Supp. 2d 241, 248 (N.D.N.Y. 2010); see also Ferraris v.
Heckler, 728 F.2d 582, 587 (2d Cir. 1984). “Substantial evidence has been defined as ‘such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must
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be “more than a mere scintilla” of evidence scattered throughout the administrative record.
Featherly, 793 F. Supp. 2d at 630; Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
“To determine on appeal whether an ALJ’s findings are supported by substantial
evidence, a reviewing court considers 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, 859 F.2d at 258 (citations omitted). Where substantial evidence
supports an ALJ’s findings they must be sustained “even where substantial evidence may support
the plaintiff’s positions and despite that the court’s independent analysis of the evidence may
differ from the [ALJ’s].” Rosado, 805 F. Supp. at 153. In other words, a reviewing court cannot
substitute its interpretation of the administrative record for that of the Commissioner if the record
contains substantial support for an ALJ’s decision. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d
Cir. 1982).
B. 	Standard for Benefits4
To be considered disabled, a plaintiff-claimant seeking benefits must establish that 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 twelve months.” 42
U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff-claimant’s
physical or mental impairment or impairments [must be] of such
severity that he is not only unable to do his previous work but
4 The requirements for establishing disability under Title XVI, 42 U.S.C. § 1382c(a)(3)
and Title II, 42 U.S.C. § 423(d), are identical, so that “decisions under these sections are cited
interchangeably.” Donato v. Sec’y of Health and Human Servs., 721 F.2d 414, 418 n.3 (2d Cir.
1983) (citation omitted).
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cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists
in the national economy, regardless of whether such work exists in
the immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he applied
for work.
Id. § 1382c(a)(3)(B).
Acting pursuant to its statutory rulemaking authority (42 U.S.C. § 405(a)), the Social
Security Administration (“SSA”) promulgated regulations establishing a five-step sequential
evaluation process to determine disability. 20 C.F.R. § 416.920(a)(4) (2015). Under that five-
step sequential evaluation process, the decision-maker determines:
(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). “If at any step a finding of disability or
non-disability can be made, the SSA will not review the claim further.” Barnhart v. Thomas,
540 U.S. 20, 24 (2003).
III. 	FACTS
At the time of her application, Plaintiff was 56 years old. (T. 217.) By the time of ALJ
Ramos’ July 17, 2024 opinion, Plaintiff was 64 years old. (Id.) She is a high school graduate
who attended regular education classes and subsequently completed professional training as a
hairdresser. (T. 110, 302.) Since 2001, she has worked as a cashier and in other customer service
roles at a grocery supermarket, including part-time employment of approximately twenty hours
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per week while her disability claim has been pending. (T. 100, 111-112, 302, 2037, 2325.)
Following a series of falls and other workplace injuries, Plaintiff was moved from a front-end
cashier position to a counter attendant role at the in-store pizzeria that allows her to remain
seated for most of the day, with very little lifting. (T. 111, 290-291, 1502, 2037-2040.) At the
time of her July 2, 2024 hearing, Plaintiff had worked in this department for approximately seven
years. (T. 2038.)
Plaintiff was born with cerebral palsy. (T. 113.) She testified that this neurological
disorder resulted in hearing loss, a limp that made it difficult to stand or walk for extended
periods, and poor balance that frequently caused her to fall. (T. 99, 108, 114.) Plaintiff also
suffered shoulder and knee injuries requiring surgery and physical therapy that her physicians
attributed to her cerebral palsy and the physical demands of her work. (T. 513, 731.) Plaintiff’s
physicians also expressed concerns that her poor balance and high risk of falling would lead to
further injury. (T. 2430, 2635.)
The record includes Plaintiff’s relevant medical history. Rather than summarizing the
records at the outset, I will refer to the pertinent records during my discussion of Plaintiff’s
arguments.
IV. 	ALJ RAMOS’ JULY 17, 2024 DECISION
Recognizing the lengthy procedural history of Plaintiff’s application, ALJ Ramos first
summarized the Appeals Council’s January 3, 2024 remand order, with the associated directives
to:
• 	give further consideration to the treating source opinions pursuant to the provisions of 20
CFR 404.1527, and explain the weight given to such opinion evidence;
• 	give further consideration to Plaintiff’s maximum residual functional capacity in light of
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the reconsidered evidence and provide appropriate rationale with specific references to
evidence of record in support of the assessed limitations; and
• 	if warranted by the expanded record, obtain evidence from a vocational expert to clarify
the effect of the assessed limitations on Plaintiff’s occupational base.
(T. 1995.)
The ALJ then determined that Plaintiff met the insured status requirements through
September 30, 2026. (T. 1998.) Based upon Plaintiff’s earnings from her part-time employment,
ALJ Ramos found that Plaintiff had engaged in substantial activity during the following periods:
“2012, 2014, July of 2015 to September of 2015, October of 2016 to December of 2016, 2017-
2021, January of 2022 to March of 2022, July of 2022 to December of 2022, January of 2023 to
March of 2023, and July of 2023 to September of 2023.” (T. 1999.) The ALJ rejected Plaintiff’s
argument that Plaintiff’s part-time employment during this period included workplace
accommodations from her employer and thus did not rise to the level of substantial gainful
activity. (T. 1999-2001.) However, ALJ Ramos found that there had been one or more
continuous twelve month period during which Plaintiff did not engage in substantial gainful
activity, and his disability determination covered those periods. (T. 2001.)
At step two, the ALJ found that Plaintiff has the following severe impairments:
“degenerative disc disease, bilateral shoulder degenerative joint disease and infantile cerebral
palsy.” (T. 2001.) At step three of the evaluation, ALJ Ramos found that Plaintiff’s impairments
either singly or in combination did not meet or medically equal the severity of a listed
impairment, particularly Listing 1.15 (disorders of the skeletal spine resulting in compromise of
a nerve root(s)), Listing 1.16 (lumbar spinal stenosis resulting in compromise of the cauda
equina), Listing 1.18 (abnormality of a major joint(s) in any extremity) , and Listing 11.07
(cerebral palsy). (T. 2002-2005.)
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Next, ALJ Ramos found that Plaintiff could perform light work except that she could lift
no more than ten pounds on a frequent basis, and could perform only occasional overhead
reaching. (T. 2005-2013.) In making this RFC determination, the ALJ stated that he considered
all of Plaintiff’s symptoms, and the extent to which those symptoms could “reasonably be
accepted as consistent with the objective medical evidence and other evidence, based on the
requirements of 20 C.F.R. 404.1529” and Social Security Ruling (“SSR”) 16-3p. (T. 2005.) ALJ
Ramos further stated that he considered opinion evidence and prior administrative medical
findings in accordance with 20 C.F.R. §§ 404.1527. (Id.) He also considered Plaintiff’s
subjective complaints regarding pain, symptoms, and functional limitations raised during the
hearing and in the overall administrative record and found them “not entirely consistent with the
medical evidence and other evidence in the record . . .” (T. 2006.)
At step four, ALJ Ramos relied on the VE testimony to find that Plaintiff is capable of
performing past relevant work as a counter attendant, but only as that job was actually
performed. (T. 2013-2014.) Ending his analysis there, ALJ Ramos found that Plaintiff had not
been disabled from her alleged onset date of October 9, 2012 through the date of his July 17,
2024 decision. (T. 2014.)
V. 	ISSUES IN CONTENTION
Plaintiff’s challenge is almost entirely premised on ALJ Ramos’ evaluation of the
February 4, 2019 opinion of Dr. Chaim B. Eliav, an independent medical expert who reviewed
Plaintiff’s then-current medical records at the Commissioner’s request prior to Plaintiff’s first
administrative hearing. (T. 1142-1168.) First, Plaintiff argues that ALJ Ramos should have
considered Dr. Eliav’s opinion that Plaintiff’s physical impairments were medically equivalent to
Listing 1.04 and Listing 1.05, despite an April 2021 regulatory revision that eliminated those
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listings. (Dkt. No. 12 at 14-17.) Second, Plaintiff argues that the ALJ’s assignment of “little
weight” to Dr. Eliav’s overall opinion was not supported by substantial evidence. (Dkt. No. 12 at
17-21.) The Commissioner contends that ALJ Ramos’ analysis of the medical opinion evidence,
Plaintiff’s testimony, and the overall record, including the step three determination and the
ultimate disability determination, were consistent with the applicable regulations and supported
by substantial evidence. (Dkt. No. 14 at 7-13.)
For the following reasons, this Court agrees with Plaintiff that ALJ Ramos’ disability
determination was not supported by substantial evidence and recommends that the District Court
grant Plaintiff’s motion for judgment on the pleadings, deny Defendant’s motion for judgment on
the pleadings, and remand for calculation and payment of benefits. Such benefit calculation
should take into account ALJ Ramos’ conclusion that Plaintiff’s earnings exceeded the SGA
threshold for certain periods after her alleged onset date. (T. 1999.)
VI. 	RFC AND MEDICAL OPINION EVIDENCE
A. 	Legal Standards
1. 	RFC
RFC is “what [the] individual can still do despite his or her limitations. Ordinarily, RFC
is the individual’s maximum remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis. . . .” A “regular and continuing basis” means
eight hours a day, for five days a week, or an equivalent work schedule. Balles v. Astrue, No.
3:11-CV-1386 (MAD), 2013 WL 252970, at *2 (N.D.N.Y. Jan. 23, 2013) (citing Melville v.
Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96–8p, 1996 WL 374184, at *2)); Babcock v.
Berryhill, No. 5:17-CV-00580 (BKS), 2018 WL 4347795, at *12-13 (N.D.N.Y. Sept. 12, 2018);
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Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir. 2013); Stephens v. Colvin, 200 F.
Supp. 3d 349, 361 (N.D.N.Y. 2016).
In rendering an RFC determination, the ALJ must consider objective medical facts,
diagnoses, and medical opinions based on such facts, as well as a plaintiff’s subjective
symptoms, including pain and descriptions of other limitations. 20 C.F.R. §§ 404.1545, 416.945.
See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999) (citing LaPorta v. Bowen, 737 F.
Supp. 180, 183 (N.D.N.Y. 1990)); Kirah D. v. Berryhill, No. 3:18-CV-0110 (CFH), 2019 WL
587459, at *8 (N.D.N.Y. Feb 13, 2019); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). An
ALJ must specify the functions a plaintiff is capable of performing and may not simply make
conclusory statements regarding a plaintiff’s capacities. Roat v. Barnhart, 717 F. Supp. 2d 241,
267 (N.D.N.Y. 2010); Martone, 70 F. Supp. 2d at 150 (citing Ferraris, 728 F.2d at 588; LaPorta,
737 F. Supp. at 183, Stephens v. Colvin, 200 F. Supp. 3d 349, 361 (N.D.N.Y. 2016); Whittaker v.
Comm’r of Soc. Sec., 307 F. Supp. 2d 430, 440 (N.D.N.Y. 2004). The RFC assessment must
also include a narrative discussion, describing how the evidence supports the ALJ’s conclusions,
citing specific medical facts, and non-medical evidence. Natashia R. v. Berryhill, No. 3:17-CV-
01266 (TWD), 2019 WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (citing SSR 96-8p, 1996
WL 374184, at *7).
2. 	Evaluating Medical Evidence
Plaintiff’s application for benefits was filed prior to March 27, 2017, so the ALJ’s review
of the medical opinion evidence is governed by 20 C.F.R. § 404.1527(c). Thus, when
determining what weight to give the opinions of non-treating sources, the ALJ must consider
several factors, including “ ‘(1) the frequency, length, nature, and extent of treatment; (2) the
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amount of medical evidence supporting the opinion; (3) the consistency5 of the opinion with the
remaining medical evidence; and (4) whether the physician is a specialist.’ ” Delossantos v.
Comm'r of Soc. Sec., No. 7:16-CV-0713, 2017 WL 4011265, *6 (N.D.N.Y. Sept. 11, 2017)
(internal quotations omitted). However, the ALJ is not required to explicitly recite each of these
factors so long as the decision clarifies his “reasoning and adherence to the Regulations.” See
Sarah C. v. Comm'r of Soc. Sec., No. 5:19-CV-1431 (FJS), 2021 WL 1175072, at *14 (N.D.N.Y.
Mar. 29, 2021) (internal citation omitted).
B. 	The ALJ’s Evaluation of Dr. Eliav’s Opinion
1. 	Summary of Dr. Eliav Opinion
Dr. Eliav, a physician with specialty certification in rehabilitation and sports medicine,
reviewed Plaintiff’s then-current medical records and completed an opinion questionnaire on
February 4, 2019. (T. 1142-1168.) His opinion covered the period beginning in September 2015,
when Plaintiff fell at work. (T. 1165.) Based on his review of the available record, Dr. Eliav
opined that Plaintiff’s physical impairments were medically equivalent to Listing 1.02 (major
dysfunction of a joint) and Listing 1.04 (disorders of the spine). (T. 1167.) His function-by-
function analysis is summarized below.
Dr. Eliav opined that Plaintiff could occasionally lift and carry up to ten pounds and
could never lift heavier weights. (T. 1160.) In support of this conclusion, he cited treatment
notes from 2013 and 2015, and imaging reports from 2011, 2013, 2015, and 2017. (Id.)
5 Courts considering the old and new medical opinion regulations have concluded that the
required analysis of consistency and supportability is substantially similar under either regime,
with the “essence of the rule remaining the same.” Acosta Cuevas v. Comm'r of Soc. Sec., No.
20-CV-0502 (AJN) (KHP), 2021 WL 363682, at *9 (S.D.N.Y. Jan. 29, 2021), rep’t and rec.
adopted, 2022 WL 717612 (S.D.N.Y. Mar. 10, 2022) (collecting cases).
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Dr. Eliav next opined that Plaintiff could sit, stand or walk for one hour without
interruption. (T. 1161.) He further opined that Plaintiff could sit for a total of six hours over the
course of the workday, could stand for a total of one hour over the course of a workday, and
could walk for a total of one hour over the course of the workday. (T. 1161, 2011.) In his
opinion, Plaintiff did not require a cane to ambulate. (T. 1161.) In addition, the independent
medical expert opined that Plaintiff was limited to only occasional overhead reaching bilaterally
and occasional use of either arm to pull. (T. 1162.) Otherwise, Dr. Eliav opined that Plaintiff
could perform frequent reaching in all other directions as well as fine manipulation. (T. 1162.)
He also opined that Plaintiff was limited to occasional use of foot controls on both the left and
right side. (Id.)
With regard to postural activities, Dr. Eliav opined that Plaintiff could occasionally climb
stairs and ramps, balance, stoop, and crouch but could never climb ladders or scaffolds, kneel, or
crawl. (T. 1163.) Addressing environmental limitations, he opined that Plaintiff could
occasionally operate a motor vehicle or work around moving mechanical parts but never work
near unprotected heights. (T. 1164.) He further opined that she could tolerate moderate noise,
such as an office setting, but could not use standard public transportation. (T. 1164-1165.)
In his July 17, 2024 decision, ALJ Ramos summarized Dr. Eliav’s opinion and assigned
it “little weight,” explaining that the independent medical expert’s findings were “inconsistent
with and unsupported by the significant medical evidence of record as well as [Plaintiff’s]
activity level.” (T. 2011.) In particular, ALJ Ramos cited Plaintiff’s testimony that “she is able
to stand and walk for longer periods than Dr. Eliav believes her capable.” (Id.) ALJ Ramos also
noted “that the listing analysis Dr. Elaiv made is no longer applicable as he refers to outdated
listing sections.” (Id.)
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2. 	ALJ Ramos Did Not Err by Finding at Step Three that Dr. Eliav’s
Listing Analysis Was Outdated.
Plaintiff recognizes that Listing 1.02 and Listing 1.04, in effect at the time of her 2015
application for benefits, had been deleted and replaced by Listing 1.15, 1.16, and 1.18 by the
time of ALJ Ramos’ July 2024 decision. (Dkt. No. 12 at 15-16.) She argues that ALJ Ramos’
step three determination should still have considered the potential applicability of these deleted
Listings, or at least examined the merits of Dr. Eliav’s analysis of the medical equivalence of
Plaintiff’s impairments with Listing 1.02 and Listing 1.04 as part of his step three determination.
This argument is unpersuasive, because ALJ Ramos’ consideration of the Listings at step three
of his July 17, 2014 decision complied with both the applicable regulations and the favored
judicial approach.
Before the revised Listings became effective on April 2, 2021, the changes were
reviewed during a lengthy public rule-making process. See Revised Medical Criteria for
Evaluating Musculoskeletal Disorders, 83 FR 20646-01, 2018 WL 2086894, at *20646-47 (May
7, 2018) (proposing deletion of Listing 1.02 and 1.04 and replacement with new Listing 1.15,
1.16, and 1.18); Revised Medical Criteria for Evaluating Musculoskeletal Disorders, 85 Fed.
Reg. 78164-01, 2020 WL 7056412, at *78164, 78179-80 (Dec. 3, 2020) (finalizing revision of
listings, and providing it “will be effective on April 2, 2021.”) As part of the final rulemaking,
the Commissioner explained “[w]hen the final rules become effective, we will apply them to new
applications filed on or after the effective date of the rules, and to claims that are pending on or
after the effective date.” Id. At the same time, the Commissioner encouraged courts to review a
disability determination “using the rules that were in effect at the time” of the ALJ’s decision,
and advised that “if a court reverses our final decision and remands a case for further
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administrative proceedings after the effective date of these final rules, we will apply these final
rules to the entire period at issue in the decision we make after the court's remand.” See id., 2020
WL 7056412, at *78164 n.2. Thus, in applying only the revised Listings to Plaintiff’s disability
claim, ALJ Ramos was acting consistent with the previously announced administrative approach.
While Plaintiff’s contention that the expired Listings still hold relevance at step three is
not wholly unreasonable, the question has already been decisively decided by the Second Circuit
and other courts. The Second Circuit has generally directed district courts to “apply the version
of the social security regulations and rulings in effect at the time of the ALJ’s decision.” See
Yucekus v. Comm'r of Soc. Sec., 829 F. App'x 553, 555 (2d Cir. 2020). District courts within the
Second Circuit have followed this direction in considering Listing 1.02 and 1.04. See Jose T. v.
Comm'r of Soc. Sec., No. 1:22-CV-00257 (EAW), 2023 WL 6209683, at *3 (W.D.N.Y. Sept. 25,
2023) (“As the Commissioner has explained in her response . . . former Listing 1.04 (Disorders
of the spine) was replaced with Listing 1.15 (Disorders of the skeletal spine resulting in
compromise of a nerve root(s)) and Listing 1.16 (Lumbar spinal stenosis resulting in compromise
of the cauda equina) . . . . The ALJ issued his decision in this case after the effective date of these
revisions and properly applied the revised Listings.”); Jason J. v. Comm'r of Soc. Sec., No. 1:21-
CV-00282 EAW, 2023 WL 3734557, at *4 n.2 (W.D.N.Y. May 31, 2023) (“Listing 1.04 has
since been eliminated but courts ‘apply the version of the social security regulations and rulings
in effect at the time of the ALJ's decision.’ ”) (quoting Yucekus); Lynne M. W. v. Kijakazi, No.
1:21-CV-639 (GTS/TWD), 2022 WL 18587760, at *5 (N.D.N.Y. Sept. 2, 2022); (“the ALJ did
not err in failing to address listings 1.15 and 1.16 because those were not in effect on June 18,
2020, when the ALJ issued his decision.”), rep’t and rec. adopted, 2023 WL 196048 (N.D.N.Y.
Jan. 17, 2023); Garcia v. Comm'r of Soc. Sec., No. 20-CIV-7539 (PAE/SLC), 2022 WL
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1051134, at *5 (S.D.N.Y. Jan. 31, 2022), rep’t and rec. adopted, No. 20-CIV-7539 (PAE/SLC),
2022 WL 970566 (S.D.N.Y. Mar. 31, 2022) (“The Court notes that Listings 1.02 and 1.04 were
eliminated as of April 2, 2021 . . . Because they were in effect at the time of the ALJ’s Decision,
however, they still control for purposes of the Court's analysis.”)
The Second Circuit’s approach is consistent with other Circuit Courts. See, e.g., Jones v.
O'Malley, 107 F.4th 489, 494 (5th Cir. 2024) (finding that application of revised Listings to
pending Social Security claims did not violate applicant’s rights); Cox v. Kijakazi, 77 F.4th 983,
991 (D.C. Cir. 2023) (summarizing valid policy considerations behind application of revised
Listings to pending disability claims); McCavitt v. Kijakazi, 6 F.4th 692, 694 (7th Cir. 2021)
(finding that revised Listing applied to pending disability claim even though application was
filed prior to revision); Combs v. Comm'r of Soc. Sec., 459 F.3d 640, 650 (6th Cir. 2006) (finding
application of revised listing to claims filed before the change is consistent with Commissioner’s
authorized rulemaking power.)6 In support of her argument, Plaintiff cites an outlier case from
the Third Circuit that applied an expired obesity listing to a claim filed before the revision went
into effect. See Christie v. Comm'r of Soc. Sec. Admin., 267 F. App'x 146, 146–47 (3d Cir. 2008)
(summary order) (“[U]nder the unusual circumstances of this case, we conclude that the
regulation in effect when the claim was first adjudicated should control the decision here[.]”).
However, recent district court decisions within that Circuit have questioned both the depth and
merits of Christie’s analysis. See, e.g., Green v. Kijakazi, No. CV 22-87-E, 2023 WL 5627739,
at *1 n.2 (W.D. Pa. Aug. 31, 2023) (“This Court agrees that the Christie decisions do not set
forth any specific guidance from the Third Circuit on this matter, much less that they were meant
6 A good summary of the caselaw and policy considerations relevant to this issue is set
out in Marian H. v. Dudek, 767 F. Supp. 3d 1069, 1075 (S.D. Cal. 2025).
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to create binding precedent. Accordingly, the Court agrees with those courts that have directly
addressed the issue, such as in Cox, Combs, and McCavitt, that application of an updated listing
to a pending matter filed prior to the update does not constitute improper retroactivity.”); see also
Razey v. O'Malley, No. CV 23-1298, 2024 WL 4266554, at *5 (W.D. Pa. Sept. 23, 2024)
(without discussing Christie, the district court rejected plaintiff’s argument that ALJ should have
applied listings in effect at the time of application was filed); Lenz v. O'Malley, No. CV 23-848,
2024 WL 4122248, at *1 (W.D. Pa. Sept. 9, 2024) (same).
Therefore, this Court rejects Plaintiff’s argument that ALJ Ramos erred by reaching his
step three determination without discussion of Listing 1.02 and 1.04, and does not recommend
remand on that basis.
3. 	The ALJ’s Assignment of Little Weight to Dr. Eliav’s Opinion is not
Supported by Substantial Evidence and Merits Remand.
While ALJ Ramos was not required to discuss Dr. Eliav’s opinion regarding the deleted
Listings at step three, he still had an obligation to properly assess the independent medical
expert’s opinion when determining Plaintiff’s RFC. As described above, the ALJ provided three
reasons for assigning “little weight” to Dr. Eliav’s opinion. However, none of these reasons rise
to the level of substantial evidence or indicate compliance with the applicable regulations.
First, ALJ Ramos asserts that Dr. Eliav’s opinion is “inconsistent with and unsupported
by the significant medical evidence of record . . .” (T. 2011.) He cited no specific evidence to
support this conclusion.7 (Id.) Such cursory analysis does not satisfy the substantial evidence
7 This Court notes that the same defect, a general citation to the broader medical record
without reference to specific evidence, also taints ALJ Ramos’ evaluation of the January 27,
2016 opinion of Dr. Kalyani Ganesh and the August 9, 2017 opinion of treating orthopedist Dr.
Daniel Murphy. (T. 2011.) Plaintiff has not challenged the ALJ’s evaluation of those opinions in
this proceeding, so this Court has not based its recommendation on this apparent error.
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standard. See Drake v. Saul, 839 F. App’x 584, 586–87 (2d Cir. 2020) (summary order) (finding
the ALJ’s “cursory statement” that a provider's opinion was “not supported by the evidence” to
be “inadequate” where the ALJ gave no “further explanation”); Melissa S. v. Comm'r Soc. Sec.,
No. 5:21-CV-420 (DJS), 2022 WL 1091608, at *4 (N.D.N.Y. Apr. 12, 2022) (“[T]he ALJ does
nothing more than state that the opinion is inconsistent with the record but offers no explanation
as to how that is true.”).
Most crucially, ALJ Ramos omitted any substantive analysis of the supportability and
consistency of Dr. Eliav’s opinion. For example, ALJ Ramos never discussed Dr. Eliav’s
citation to multiple imaging reports as support for the limitations in his opinion. (T. 1160, 2011.)
No other formal medical opinion addressed these imaging reports, but the ALJ summarized the
objective results of these reports elsewhere in his decision, offering his apparent lay conclusion
that “[t]he medical record does not support a finding of disability.” (T. 2007-2008.) Such lay
analysis falls well short of substantial evidence because it provides no valid explanation for the
ALJ’s conclusions. See Jody L. W. v. Comm'r of Soc. Sec., No. 5:20-CV-1434 (DEP), 2022 WL
2237801, at *6 (N.D.N.Y. June 21, 2022) (finding ALJ’s interpretation of MRI result without
benefit of physician’s interpretation “is a clear example of an ALJ interpreting raw medical data
to draw medical conclusions despite being unqualified to do so.”); Christina M. v. Saul, No. 18-
CV-0332 (CFH), 2019 WL 3321891, at *7 (N.D.N.Y. July 24, 2019) (recognizing that “[t]here is
a difference between analyzing medical records to determine what the weight of the evidence
supports and interpreting raw medical data that would require the expertise of a physician or
other trained medical source; the ALJ is precluded only from the latter”).
In further support of his opinion, Dr. Eliav also cited Plaintiff’s history of falls in the
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workplace, dating back to at least September 2015. (T. 1160, 1165.) This concern is consistent
with the numerous falls and resulting injuries documented in Plaintiff’s medical records both
predating and postdating Dr. Eliav’s opinion. (T. 476, 479, 696, 777, 864-865, 875, 1024, 1929,
2419, 2600, 2631, 2635-2636.) ALJ Ramos never discussed these records in the context of Dr.
Eliav’s opinion, or the apparent consistency with other medical opinions suggesting that Plaintiff
faced a heightened risk of falls due to her cerebral palsy and related impairments. (T. 696, 777,
1929, 2636.) This error deprives the court of substantial evidence to support ALJ’s Ramos’
assessment of the supportability and consistency of Dr. Eliav’s opinion. See Jessica L.M. v.
Comm'r of Soc. Sec., No. 5:24-CV-00403 (GTS/ML), 2025 WL 1994917, at *12 (N.D.N.Y. June
9, 2025), rep’t and rec. adopted, 2025 WL 1994646 (N.D.N.Y. July 17, 2025) (reciting well-
established rule that an ALJ should not consider each medical opinion “in a vacuum,” in order to
“adequately account for the consistency of the various opinions with each other.”)
Next, the ALJ justified his assignment of little weight to Dr. Eliav’s opinion by finding it
inconsistent with Plaintiff’s own assessment of her daily activities, citing Plaintiff’s hearing
testimony “that she is able to stand and walk for longer periods than Dr. Eliav believes her
capable.” (T. 2011.) ALJ Ramos’ decision does not specify what statements he is relying on, as
Plaintiff’s testimony is spread over three separate hearings held over a ten year span. However,
the Commissioner’s brief directs this Court’s attention to Plaintiff’s June 2018 testimony before
ALJ Lischak that she is “able to stand for 4-5 hours.” (T. 126, 1160, 2005.)
By emphasizing Plaintiff’s 2018 estimate that she could stand for four to five hours, ALJ
Ramos did not discuss Plaintiff’s testimony at the same hearing that she was unable to stand for
“long periods of time” and that “sometimes I fall, tripping over my feet.” (T. 114.) ALJ Ramos’
sparse analysis also fails to explain why these 2018 statements are more reliable than Plaintiff’s
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2022 hearing testimony that she could only stand for “10 to 15 minutes” before having to sit
down, tried to avoid walking around at work due to a number of falls, and that her employer had
moved Plaintiff from a front-end cashier position to one at the pizza counter so that she could sit
for extended periods. (T. 2112-2117.) Similarly, Plaintiff testified at her July 2, 2024 hearing
that she had worked at the pizza counter for approximately seven years because it reduced her
risk of falling. (T. 2038-2039.) She further testified that she tried not to walk by herself
“because I do have a tendency to fall a lot because the foot goes inward which means I pretty
much trip myself because the way my legs is turned in due to the, you know, bone structure and
the cerebral palsy.” (T. 2041.) She testified that she often used a cane or pushed a grocery cart at
work to improve her stability while walking. (Id.)
In addition to the testimonial evidence suggestive of greater difficulties with walking and
balance, ALJ Ramos’ sole reliance on Plaintiff’s June 2018 testimony appears questionable on a
more fundamental level. Plaintiff was unrepresented at the hearing before ALJ Lischak, and the
hearing transcript reflects Plaintiff’s confusion with the process and some of the questions.8 (T.
83-84, 87, 91, 95, 99-100, 108, 111, 114.) For example, the hearing transcript suggests Plaintiff
had difficulty distinguishing between the typical obligations of her front-end cashier job and how
she actually performed the work:
Q: 	Next bunch of stuff I’ve got to ask you about is, this is on a typical
workday. How many hours a day are you able to sit? And that means, not at one
8 This Court is not suggesting that ALJ Lischak violated Plaintiff’s due process rights at
the initial hearing. The transcripts for the February 5, 2018 and June 12, 2018 hearings
demonstrate that ALJ Lischak adjourned the hearing once to allow Plaintiff to seek legal
representation, described the typical benefits of qualified legal representation, suggested
potential resources for obtaining counsel, and explained the general hearing procedures when
Plaintiff elected to proceed pro se. (T. 56-69, 81-88, 92-98.)
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time, at a stretch, but through the whole workday. In an eight-hour workday, how
many hours could you sit, ma’am?
Clmt: 	Half an hour.
ALJ: 	Only half an hour, the whole eight hours?
Clmt: That’s all we get.
ALJ: 	But I’m saying, what – well, what are you able to do?
[redacted]9
Clmt: 	I can do it occasionally. But I do have to walk around.
Q: 	And why do you have to - - could you sit for eight hours? Let’s put it that
way.
A: 	If I had to.
Q: 	You could - - are you physically able to sit for eight hours?
A: 	Yeah.
Q: 	Okay. Eight hours. Now, how do you - - how long are you physically able
to stand, allowing for rest periods in between, in an eight-hour workday?
A: 	Four to five hours.
Q: 	Okay. In an eight-hour workday, how many hours per day are you able to
walk, allowing for rest periods as you need them?
[redacted]
Q: 	How many hours, in a total eight-hour period ma’am, do you feel you are
able to walk, allowing to - - you can sit down and rest whenever you feel like.
A: 	One hour.
(T. 125.) (emphasis supplied)
9 Plaintiff’s sister attended the June 2018 hearing but did not testify. (T. 52.) This Court
has redacted cross-talk between Plaintiff and her sister recorded in the hearing transcript.
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In addition to Plaintiff’s part-time employment, ALJ Ramos also relied on what he
characterized as Plaintiff’s “vigorous” activities of daily living. (T. 1999, 2007.) Many of these
activities appear to be drawn almost entirely from a series of “yes/no” questions asked by ALJ
Lischak at Plaintiff’s 2018 hearing, with no followup. (T. 121-123.) 	For example, ALJ Lischak
asked Plaintiff, “Can you provide childcare, if necessary?” (T. 122.) Plaintiff’s simple “yes”
answer provided no context to suggest that the then fifty-eight-year old Plaintiff (who resided
alone and had no children under eighteen) regularly performed any childcare, or indicated what
type of lifting, carrying, walking, and bending was typically associated with any care she did
provide. (T. 122, 309-310.) Plaintiff similarly answered “yes” to ALJ Lischak’s questions
regarding gardening and basic household chores, but the broader record suggests that Plaintiff
required assistance with such activities or avoided them due to pain. (T. 122-123, 311-312,
1231.) Other activities listed by ALJ Ramos, such as watching television, listening to the radio,
attending church, and going to the movies, would not seem to qualify as “vigorous” activities
that directly translated to the requirements of light work.
Even if ALJ Ramos’s acceptance of Plaintiff’s 2018 testimony at face value was
reasonable, these activities of daily living form a poor basis for rejecting Dr. Elaiv’s medical
opinion. As a general rule, “the mere fact that [a claimant] is mobile and able to engage in some
light tasks at [her] home does not alone establish that [s]he is able to engage in substantial
gainful activity.” Meyers v. Colvin, No. 12-CV-228 (DNH/VEB), 2013 WL 12224212, at *8
(N.D.N.Y. May 14, 2013), rep’t and rec.adopted, 2013 WL 12224204 (N.D.N.Y. Sept. 19, 2013)
(internal citation omitted); see also Mallery v. Berryhill, No. 3:17-CV-587 (DEP), 2018 WL
1033284, at *4 (N.D.N.Y. February 22, 2018) (finding activities of daily living form “a very
weak basis” for discounting or rejecting a medical opinion). Indeed, it is well-settled that
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“[s]uch activities do not by themselves contradict allegations of disability,” as people should not
be penalized for enduring the pain of their disability in order to care for themselves.” Woodford
v. Apfel, 93 F. Supp.2d 521, 529 (S.D.N.Y. 2000). That same rationale would apply to Plaintiff’s
part-time employment of approximately twenty hours per week. (T. 2037.) The record indicates
that this part-time job has served as Plaintiff’s sole source of income during the pendency of her
claim. (T. 132-134, 219-289, 1383-1402, 2221-2244.) As Plaintiff testified regarding physician
recommendations that she stop working due to her history of falls and risk of further injury, “I
continue to work, because, you know, I have to support myself.” (T. 99, 702, 704.) See Meyers
v. Astrue, 681 F. Supp. 2d 388, 411 (W.D.N.Y. 2010) (“participation in part-time work does not,
by itself, establish claimant was able to engage in substantial gainful activity”).
This Court is cognizant that an ALJ’s assessment of hearing testimony is generally
entitled to great deference, in light of the ALJ’s status as “the only participant in the disability
appellate process who has the ‘opportunity to observe witnesses' demeanor, candor, fairness,
intelligence and manner of testifying,’” making the ALJ “best-positioned to make accurate
credibility determinations.” Samantha S. v. Comm'r of Soc. Sec., 385 F. Supp. 3d 174, 188
(N.D.N.Y. 2019) (internal quotation omitted). However, ALJ Ramos did not have the benefit of
direct observation of Plaintiff’s June 2018 testimony, which took place before ALJ Lischak.
While ALJ Ramos heard Plaintiff’s telephonic testimony in 2022 and 2024 directly, he only had
access to the written transcript for Plaintiff’s 2018 testimony, and thus lacked the advantage
typically available to the administrative finder of fact.
Finally, ALJ Ramos discounts Dr. Eliav’s opinion because it is partially premised on
“outdated listings sections.” (T. 2011.) As discussed above, the ALJ was not required to discuss
these expired listings at step three. However, ALJ Ramos should have inquired into the basis for
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Dr. Eliav’s opinion that Plaintiff’s physical impairments were medically equivalent to Listing
1.02 and Listing 1.04, because such a finding necessarily involves recognition of specific
symptoms such as muscle weakness, motor loss, pronounced difficulty walking, and difficulty
changing from a seated to a standing position. See Demars v. Comm’r of Soc. Sec., 841 Fed.
App’x 258, 262 (2d Cir. 2021) (describing an inability to ambulate effectively as a factor when
assessing Listing 1.02); Lynne M. W. v. Kijakazi, No. 1:21-CV-639 (GTS/TWD), 2022 WL
18587760, at *7 (N.D.N.Y. Sept. 2, 2022), rep’t and rec. adopted, 2023 WL 196048 (N.D.N.Y.
Jan. 17, 2023) (noting that Listing 1.02 requires a showing of difficulty ambulating, and
symptoms under Listing 1.04 include an inability to walk on heels and toes, atrophy associated
with muscle weakness, and an inability to squat or rise from a squatting position). Without
considering the substance behind Dr. Eliav’s opinion regarding the listings, the ALJ’s analysis of
his opinion is incomplete and prevents this Court from understanding the ALJ’s reasoning.
Meaningful judicial review is “frustrated” where “the Court is left to guess at the ALJ’s
reasoning.” See Brian C. v. Comm'r of Soc. Sec., No. 3:22-CV-01292 (LEK/TWD), 2024 WL
1468869, at *8 (N.D.N.Y. Feb. 20, 2024), rep’t and rec. adopted, 2024 WL 1069877 (N.D.N.Y.
Mar. 12, 2024). Here, ALJ Ramos identified three reasons why he assigned little weight to Dr.
Eliav’s opinion but failed to adequately articulate the reasons behind his conclusion, and this
Court’s searching review of the record has only further called into question his analysis of the
consistency and supportability of Dr. Eliav’s opinion. See Drake v. Saul, 839 Fed. Appx. 584,
587 (2d Cir. 2020) (finding that ALJ’s lack of explanation for discounting medical opinion “does
not instill much confidence that the ALJ complied with those regulatory provisions.”); Alexa J.
M. v. Kijakazi, No. 5:22-CV-243 (BKS/ML), 2023 WL 4467124, at *4 (N.D.N.Y. July 11, 2023)
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(remanding where the ALJ did not explain, “either expressly or implicitly,” how the relevant
evidence supports or undermines the medical opinion evidence).
4. 	This Court Recommends Remand for Calculation of Benefits.
“Sentence four of Section 405(g) provides district courts with the authority to affirm,
reverse, or modify a decision of the Commissioner ‘with or without remanding the cause for a
rehearing.’” Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (quoting 42 U.S.C. § 405(g)).
Where there are gaps in the administrative record or the ALJ has applied an improper legal
standard, the Second Circuit has indicated that remand for further development of the evidence is
warranted. Rosa v. Callahan, 168 F.3d 72, 82–83 (2d Cir. 1999) (internal citations omitted).
Thus, remand for further administrative proceeding is the overwhelmingly preferred course
where the administrative record contains gaps and further findings would “plainly help to assure
the proper disposition” of the claim. Glass v. Colvin, No. 1:12-CV-1332(WGY), 2014 WL
5361471, at * (N.D.N.Y. Oct. 21, 2014) (citing Butts, 388 F.3d at 385). Still, a number of factors
in this case prompt this Court to recommend remand for calculation and payment of benefits.
a. 	Plaintiff’s Age & Avoidance of Further Delay in Resolution of
Claim
Plaintiff’s primary argument in support of remand for calculation of benefits is that
further administrative proceedings will only further delay resolution of Plaintiff’s application,
which has been pending for almost ten years. During that time, the Commissioner has twice
stipulated to judicial remand, and Plaintiff’s application has been considered in four hearings by
two different ALJs. (T. 48-145, 1213-1238, 2032-2053.) Plaintiff was 56 years old when she
applied for benefits, and will shortly be turning 66 years old with her claim unresolved. (T. 217.)
Thus, there is certainly merit to Plaintiff’s contention. See McClain v. Barnhart, 299 F. Supp. 2d
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309, 330 (S.D.N.Y. 2004) (“The lengthy [nine-year] delay in the resolution of [plaintiff’s] claim
further persuades [the court] that the case is properly disposed by remanding solely for the
calculation of benefits.”).
b. 	There are No Obvious Gaps in the Record and Plaintiff has
Presented Persuasive Proof of Disability.
However, remand for calculation of benefits should not be based on delay alone. Such
remand should be ordered only “when the record provides persuasive proof of disability and a
remand for further evidentiary proceedings would serve no purpose.” See Dommes v. Colvin,
225 F. Supp.3d 113, 124 (N.D.N.Y. 2016) (quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir.
1980)). No useful purpose exists, for example, “[w]here the reversal ‘is based solely on the
[Commissioner’s] failure to sustain [her] burden of adducing evidence of the claimant’s
capability of gainful employment,’ ” and the Commissioner would not be able to offer additional
evidence in support of her position during subsequent proceedings. Balsamo v. Chater, 142 F.3d
75, 82 (2d Cir. 1998) (quoting Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 644 (2d
Cir. 1983)); see also Talanker v. Barnhart, 487 F.Supp.2d 149, 160 (E.D.N.Y. 2007) ([W]hen a
court finds ‘no apparent basis to conclude that a more complete record might support the
Commissioner's decision, [it may] opt[ ] simply to remand for a calculation of benefits.”)
(quoting Butts, 388 F.3d at 385.) In short, a court should reverse the Commissioner’s decision
and remand for a calculation of benefits when “the record is ‘sufficiently complete’ and provides
‘persuasive evidence of total disability,’ thus rendering further proceedings pointless.” Manago
v. Barnhart, 321 F.Supp.2d 559, 568 (E.D.N.Y.2004) (quoting Williams v. Apfel, 204 F.3d 48, 50
(2d Cir.1999)).
The record is sufficiently complete here. It stands at 2810 pages, and includes treating
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source notes and opinions from 2011 through 2024, reports from examining and non-examining
consultants, and the opinion of an independent medical expert. Plaintiff provided updated
medical records prior to her most recent hearing. (T. 2245-2246.) The Commissioner did not
deem updated consultant reviews necessary prior to ALJ Ramos’ most recent disability
determination, despite the only consultative examination taking place in January 2016 and the
most recent independent medical opinion being issued in February 2019. Additional consultative
examinations now, when Plaintiff is approaching full retirement age, would serve no useful
purpose.
Likewise, there is persuasive evidence of disability. VE DiTrinco testified that Plaintiff’s
prior work of “counter attendant” was unskilled. (T. 2050.) She also testified that an individual
matching ALJ’s Ramos’ RFC determination could only do this job as actually performed by
Plaintiff, taking into account that Plaintiff’s employer allowed her to remain seated for most of
her shift and the only lifting involved handing pizza slices to customers. (T. 1227-1228, 2051.)
VE DiTrinco further testified that the same individual would “certainly not” be able to do the
counter attendant job as generally performed. (Id.)
ALJ Ramos did not question VE DiTrinco regarding other jobs in the national economy
that similarly situated individuals could perform. However, Plaintiff was already 56 years at the
time of her application and her unskilled work as a counter attendant would not generate any
transferable skills. See Draegert v. Barnhart, 311 F.3d 468, 473 (2d Cir. 2002) (“Skills are not
gained by doing unskilled jobs.”) (quoting SSR 82-41, 1982 WL 31389). In similar situations,
courts and the Commissioner have found that no other potential jobs exist in significant numbers
in the national economy. See Draegert, 311 F.3d at 477 (remanding for calculation of benefits
where fifty-five year old Plaintiff could no longer perform prior work and had no transferable
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skills); Madigan v. Kijakazi, No. 19-CIV- 5725 (AEK), 2022 WL 909861, at *7 (S.D.N.Y. Mar.
29, 2022) (“SSA regulations provide that a person of advanced age who is limited to sedentary or
light work will be found unable to make an adjustment to other work unless that person has skills
that can be transferred to other skilled or semiskilled work that the person can still perform.”)
(citing 20 C.F.R. § 404.1568(d)(4)).
In addition, Plaintiff has demonstrated several flaws in the ALJ’s analysis of the medical
opinion and testimonial evidence, suggesting that further administrative proceedings would
likely result in a more restrictive RFC that may wholly eliminate light work. Taken together, all
those factors lead this Court to recommend remand for calculation of benefits. See Bobby R. v.
Comm'r of Soc. Sec., No. 5:23-CV-00590 (MAD/ML), 2024 WL 3735876, at *10 (N.D.N.Y.
July 8, 2024), rep’t and rec. adopted, 2024 WL 3715757 (N.D.N.Y. Aug. 8, 2024) (“The highly
restrictive RFC determination and low number of jobs that have been identified despite multiple
hearings provide persuasive proof of disability.”); Boylan v. Astrue, 32 F. Supp. 3d 238, 252
(N.D.N.Y. 2012) (remanding for calculation of benefits where the ALJ erred in evaluation of
medical opinion evidence and the record contained persuasive evidence of disability).
c. 	Nature of Remand
After four administrative hearings, three federal court complaints, and two judicial
remand orders spread over a nearly ten year period, the Commissioner’s determination that
Plaintiff is not disabled rests entirely upon the theory that Plaintiff’s ability to perform her
current part-time job and engage in activities of daily living translates to an RFC of less than the
full range of light work on a full time basis. VE testimony has not identified any other
occupations that satisfy that RFC aside from her current position, as actually performed. Given
Plaintiff’s age and history of unskilled work, further administrative hearings are unlikely to
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reveal previously undisclosed jobs existing in significant numbers that Plaintiff can perform and
would only further delay a process that has gone on for almost a decade. See Peach v. Berryhill,
No. 1:17-CV-00201 (MAT), 2018 WL 4140613, at *5 (W.D.N.Y. August 30, 2018) (finding
persuasive evidence of disability where the Commissioner repeatedly failed to meet its burden at
step five); Torres v. Colvin, No. 3:16-CV-00809 (JAM), 2017 WL 1734020, at *4 (D. Conn.
May 3, 2017) (“Plaintiff’s claim has been pending for more than seven years and was already
remanded by the District Court once before. I am not persuaded that the Commissioner deserves
a third opportunity to carry her burden” at step five.).
The administrative calculation of benefits on remand should take into account ALJ
Ramos’ finding that Plaintiff’s earnings exceeded the SGA threshold for certain periods of time
after the alleged onset date.10 (T. 231-234, 256-259, 269, 273, 1999.) In her brief, Plaintiff
argues that none of her work during the pendency of her disability claim should be considered
SGA because her employer allowed her numerous special accommodations. (Dkt. No. 12 at 20-
21.) However, ALJ Ramos considered and rejected these same arguments during the
administrative process (T. 1999-2001) and Plaintiff has not presented any objective evidence that
would rebut this finding. See 20 C.F.R. § 404.1574 (a)(1) (“Generally, in evaluating your work
activity for substantial gainful activity purposes, our primary consideration will be the earnings
you derive from the work activity.”)
In making this recommendation, this Court recognizes that remand for calculation of
benefits is understandably disfavored, and the District Court may reasonably conclude that this
10 During the September 29, 2022 hearing, Plaintiff ‘s counsel suggested amendment of
her alleged onset date to September 30, 2015 to correspond with the scope of Dr. Eliav’s
opinion, but ALJ Ramos left the date unchanged. (T. 1217, 1995.)
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case does not meet this high standard. See Vargas v. Sullivan, 898 F.2d 293, 296 (2d Cir. 1990)
(finding remanding for calculation and payment of benefits appropriate where there was an
“infinitesimal likelihood that employment of any kind would be available” to plaintiff); Jennifer
D. v. Saul, No. 3:19-V-437 (NAM), 2020 WL 2553102, at *7 (N.D.N.Y. May 20, 2020)
(remanding for calculation of benefits because “once proper weight is given to the restrictive
opinion of Plaintiff’s treating physician . . . a finding of disability is inevitable”); see also Kim G.
o/b/o Erica L. v. Comm'r of Soc. Sec., No. 1:24-CV-00110 (EAW), 2025 WL 2552598, at *5
(W.D.N.Y. Sept. 4, 2025) (recognizing that remand for benefits is reserved for exceptional
cases). If the District Court determines that further development of the record or additional
evaluation of the medical opinion or testimonial evidence would be appropriate in this case, this
Court recommends that any further administrative proceedings be resolved on an expedited
basis, not to exceed 120 days, in light of the history of procedural delays, Plaintiff’s age, and the
likelihood of undue hardship while the matter is unresolved. See Michaels v. Colvin, 621 F.
App'x 35, 41 (2d Cir. 2015) (finding a time limit on further administrative proceedings to be
“imperative” where claim had been pending for over eight years) (internal citation omitted);
Brandon C. v. Comm'r of Soc. Sec., No. 5:21-CV-00159 (AMN/ATB), 2023 WL 8020257, at *3
(N.D.N.Y. Nov. 20, 2023) (ordering expedited administrative proceedings where claim had been
pending for almost nine years).
ACCORDINGLY, it is
RECOMMENDED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 12)
be GRANTED; Defendant’s motion for judgment on the pleadings (Dkt. No. 14) be DENIED;
and that the matter be REVERSED AND REMANDED to the Commissioner for the
calculation and payment of benefits consistent with this Report and Recommendation.
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Pursuant to 28 U.S.C. § 636(b)(1), 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 14 DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.
Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72.
Dated:
Binghamton, New York
December 23, 2025
Binghamton, New York
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