Allen v. Bisignano

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BRENT A.,
Plaintiff,
v. 	5:24-CV-1173
(BKS/DJS)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
HILLER COMERFORD 	JUSTIN GOLDSTEIN, ESQ.
INJURY & DISABILITY LAW
Attorney for Plaintiff
6000 N. Bailey Ave., Suite 1A
Amherst, New York 14226
SOCIAL SECURITY ADMINISTRATION 	MOLLY CARTER, ESQ.
OFFICE OF GENERAL COUNSEL
Attorney for Defendant
6401 Security Blvd.
Baltimore, Maryland 21235
DANIEL J. STEWART
United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER1
Plaintiff Brent A. brought this action pursuant to 42 U.S.C. § 405(g) seeking
review of a decision by the Commissioner of Social Security that Plaintiff was not
disabled. Currently before the Court are Plaintiff’s Motion for Judgment on the Pleadings
and Defendant’s Motion for Judgment on the Pleadings. Dkt. Nos. 9 & 12. Plaintiff filed
a reply. Dkt. No. 13. For the reasons set forth below, it is recommended that Plaintiff’s
1 This matter was referred to the undersigned for a Report-Recommendation pursuant to L.R. 72.3(e).
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Motion for Judgment on the Pleading be granted and the matter remanded for further
proceedings.
I. BACKGROUND
A. Factual Background
Plaintiff was born in 1971. Dkt. No. 6, Admin. Tr. (“Tr.”), p. 79. Plaintiff alleges
disability due to Lyme Disease, bell palsy, nerve damage, neck issues from prior car
accident, shoulder issues from prior car accident, weakness, shortness of breath, heart
issues, failed nerve conduction test, calcified arteries, heart monitoring, inability to lift
heavy object, and arthritis. 	Tr. at p. 80. 	On February 2, 2022, Plaintiff applied for
disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under
Titles II and XVI of the Social Security Act. Tr. at pp. 89-90. Plaintiff was approved for
SSI and found disabled with an onset date of February 9, 2022. Tr. at p. 89. Plaintiff’s
application for DIB was denied, Tr. at pp. 87 & 102, after which he timely requested a
hearing before an Administrative Law Judge (“ALJ”). 	Tr. at p. 161. 	Plaintiff
subsequently appeared and testified at a hearing before ALJ Jeremy Eldred on December
15, 2023, along with vocational expert Christine Ditrinco. Tr. at pp. 25-37. On January
2, 2024, ALJ Eldred issued a written decision finding Plaintiff was not under a disability
at any time from January 1, 2020, the alleged onset date, through June 30, 2020, the date
last insured. Tr. at p. 15. On July 29, 2024, the Appeals Council denied Plaintiff’s request
for review. Tr. at pp. 1-6.
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B. The ALJ’s Decision
In his decision the ALJ made the following findings of fact and conclusions of law.
First, the ALJ found Plaintiff last met the insured status requirements of the Social
Security Act on June 30, 2020. 	Tr. at p. 12. 	Second, the ALJ found Plaintiff did not
engage in substantial gainful activity during the period from his alleged onset date of
January 1, 2020, through his date last insured of June 30, 2020. Id. Next, the ALJ found
Plaintiff had the following medically determinable impairments: impingement and AC
joint arthritis of the left shoulder, and status post fusion at C5-C6 of the cervical spine.
Id. 	Fourth, the ALJ found that through the date last insured Plaintiff did not have an
impairment or combination of impairments that significantly limited the ability to perform
basic work-related activities for twelve consecutive months; therefore, the claimant did
not have a “severe” impairment. Tr. at pp. 12-13. The ALJ, therefore, concluded Plaintiff
was not under a disability at any time from January 1, 2020, through June 30, 2020. Tr.
at p. 15.
II. RELEVANT LEGAL STANDARDS
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. 	42 U.S.C. § 405(g); Wagner v. Sec’y of Health &
Human Servs., 906 F. 2d 856, 860 (2d Cir. 1990). 	Rather, the Commissioner’s
determination will be reversed only if the correct legal standards were not applied, or it
was not supported by substantial evidence. 	See Johnson v. Bowen, 817 F. 2d 983, 986
(2d Cir. 1987) (“Where there is a reasonable basis for doubt whether the ALJ applied
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correct legal principles, application of the substantial evidence standard to uphold a
finding of no disability creates an unacceptable risk that a claimant will be deprived of
the right to have her disability determination made according to the correct legal
principles.”); accord Grey v. Heckler, 721 F. 2d 41, 46 (2d Cir. 1983), Marcus v. Califano,
615 F. 2d 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that amounts to “more
than a mere scintilla,” and has been defined as “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971). Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld. Rutherford v. Schweiker,
685 F. 2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” Williams v. Bowen, 859 F. 2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the Commissioner’s finding must be sustained “even
where substantial evidence may support the plaintiff’s position and despite that the court’s
independent analysis of the evidence may differ from the [Commissioner’s].” Rosado v.
Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford
the Commissioner’s determination considerable deference and may not substitute “its
own judgment for that of the [Commissioner], even if it might justifiably have reached a
different result upon a de novo review.” Valente v. Sec’y of Health & Human Servs., 733
F. 2d 1037, 1041 (2d Cir. 1984).
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B. Standard to Determine Disability
The Commissioner has established a five-step determination whether an individual
is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920. The
Supreme Court has recognized the validity of this sequential evaluation process. Bowen
v. Yuckert, 482 U.S. 137, 141-42 (1987). The five-step process asks:
(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. Thompson, 540 U.S. 20, 24 (2003).
III. ANALYSIS
This matter presents the “unusual case” where the ALJ stopped the sequential
analysis at Step Two. Bobbie W. v. Dudek, 2025 WL 755639, at *4 (N.D.N.Y. Mar. 10,
2025) (quoting Dawn Lyn C. v. Comm’r of Soc. Sec., 2021 WL 4398372, at *1 (D. Conn.
Sept. 27, 2021)). Step Two’s “severity” requirement is de minimis and is meant to screen
out only the weakest claims. 	Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995); see
also McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014). As a result, “because step two
is to be rarely utilized as basis for the denial of benefits, . . . its invocation is certain to
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raise a judicial eyebrow.” 	McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 361 (3d Cir.
2004). Upon review of the record and the arguments of the parties, the Court recommends
finding that the Step Two determination here was not supported by substantial evidence
and that remand for further proceedings is the proper remedy.
At Step Two, the ALJ “assesses whether the claimant suffers from a severe
impairment that significantly limits his or her physical or mental ability to do basic work
activities.” Armstrong v. Berryhill, 2018 WL 1357378, at *2 (N.D.N.Y. Mar. 14, 2018)
(citing 20 C.F.R. § § 404.1520(c)). An impairment will be considered severe if it causes
“more than minimal 	limitations in [a claimant’s] ability to perform work-related
functions.” 	Donahue v. Colvin, 2018 WL 2354986, at *5 (W.D.N.Y. May 24, 2018))
(alternation in original); Lugo Rodriguez v. Berryhill, 2018 WL 1135330, at *4 (D. Conn.
Mar. 2, 2018) (“In other words, any claim in which the medical evidence establishes more
than a ‘slight abnormality’ with ‘no more than a minimal effect on an individual’s ability
to work’ should be determined ‘severe.’”) (quoting Bowen v. Yuckert, 482 U.S. 137, 154
n.12 (1987)). Further, a severe impairment must persist for at least twelve months. See
42 U.S.C. § 423(d)(1)(A) (disability involves impairment “which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of
not less than 12 months”).
While Plaintiff bears the burden of establishing severity, Jessica S. v. Comm’r of
Soc. Sec., 2023 WL 5350988, at *4 (N.D.N.Y. Aug. 21, 2023), “[t]he standard at step two
is quite low.” 	O’Connor v. Saul, 2020 WL 1242408, at *3 (W.D.N.Y. Mar. 16, 2020);
see also Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). 	Here, several factors
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counsel in favor of directing remand for further consideration and explanation by the ALJ
as to the severity of Plaintiff’s impairments.
The 	ALJ 	found 	Plaintiff 	suffered 	from 	several 	medically 	determinable
impairments: “impingement and AC joint arthritis of the left shoulder, and status post
fusion at C5-C6 of the cervical spine.” Tr. at p. 12. Those are clearly conditions that can
be deemed severe at Step Two. See, e.g., Deborah K. v. Comm’r of Soc. Sec., 2025 WL
399448, at *2 (W.D.N.Y. Feb. 5, 2025); Dezarea W. v. Comm’r of Soc. Sec., 2023 WL
1960528, at *3 (N.D.N.Y. Feb. 13, 2023), report and recommendation adopted, 2023 WL
2552452 (N.D.N.Y. Mar. 17, 2023).
The ALJ’s finding of no disability turned, therefore, on concluding that Plaintiff
had no severe impairment. Tr. at p. 13. “Severe impairments are those that significantly
limit physical or mental abilities to do basic work activities.” 	Heather C. v. Berryhill,
2019 WL 1432593, at *4 (N.D.N.Y. Mar. 29, 2019) (citing 20 C.F.R. §§ 404.1521(a),
416.921(a)) (internal quotations omitted). 	At Step Two, the ALJ is tasked with
determining whether the claimant has an impairment, or combination of impairments, that
is “severe” within the meaning of the Act, in that it imposes significant restrictions on
that claimant’s ability to perform basic work activities. 20 C.F.R. § 404.1520(c). “The
following are examples of ‘basic work activities’: ‘walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling . . . seeing, hearing, and speaking . . .
[u]nderstanding, carrying out, and remembering simple instructions . . . [u]se of judgment
. . . [r]esponding appropriately to supervision, co-workers and usual work situations.’”
20 C.F.R. § 404.1522(b).
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Plaintiff testified to several limitations on his functional abilities during the
hearing, including muscle spasms, breathing difficulties, and an inability to sit or stand
for long periods. 	Tr. at pp. 32-34. 	The ALJ appears either to have not considered that
testimony or not credited it. The Court finds this to be error.
First, Plaintiff’s testimony appears not to have been given much weight because
of a lack of objective medical evidence during the relevant period between onset date and
date last insured. 	See Tr. at p. 14 (“the evidence does not support the claimant’s
allegations as they relate to the period prior to the expiration of the date last insured”).
The lack of objective proof is not fatal to a finding of severity, however. “While existence
of an impairment cannot be based wholly on subjective statements, no legal bar prevents
reliance on such evidence to find that an impairment has more than minimal effect on an
individual’s ability to work.” 	Snedeker v. Colvin, 2015 WL 1126598, at *4 (N.D.N.Y.
Mar. 12, 2015). Here, the ALJ did not question the existence of medically determinable
impairments, Tr. at p. 12, just their severity. 	The record contained evidence, both pre-
dating and post-dating Plaintiff’s period of disability, that could support Plaintiff’s
claimed disability. 	See generally Dkt. No. 9, Pl.’s Mem. of Law, pp. 4-7 (discussing
medical evidence). In finding no severe impairment, the ALJ focused exclusively on the
lack of records from Plaintiff’s onset date to the date last insured. Tr. at p. 14. However,
“evidence from outside that . . . time frame may [not] automatically be discounted.”
Christopher B. v. Comm’r of Soc. Sec., 2022 WL 3701548, at *4 (N.D.N.Y. Aug. 26,
2022) (citing Arnone v. Bowen, 882 F.2d 34, 39 (2d Cir. 1989)).
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Although not required to do so, “it is within an ALJ’s purview to consider pre-onset date
evidence.” James N. v. Comm’r of Soc. Sec., 2020 WL 1140498, at *5 (N.D.N.Y. Mar.
6, 2020). It is also true that evidence after the date last insured “may disclose the severity
and continuity of impairments existing before the earning requirement date.” Pollard v.
Halter, 377 F.3d 183, 194 (2d Cir. 2004). 	It is not clear that, in discrediting Plaintiff’s
testimony based on a lack of objective evidence, the ALJ considered these legal
principles. This suggests that the ALJ’s conclusion regarding the evidentiary record may
not be supported by substantial evidence. 	Liner v. Comm’r of Soc. Sec., 2019 WL
2723550, at *7 (S.D.N.Y. July 1, 2019) (directing remand when ALJ failed to provide
explanation for rejecting Plaintiff’s subjective statements with respect to severity
determination).
It is also unclear to the Court whether the ALJ’s recitation of relevant testimony is
consistent with the record. In recounting Plaintiff’s testimony, the ALJ noted:
[w]hen asked at the hearing to state why he has been disabled since January
1, 2020, the claimant testified that he sustained injuries prior to that date.
However, the focus of the claimant’s testimony was a description of the
problems he experiences due to Lyme disease, such as muscle spasms and
weakness. The claimant stated that he was diagnosed with Lyme disease in
July 2021.
Tr. at p. 13 (citing Tr. at p. 31). 	In the Court’s view that mischaracterizes Plaintiff’s
testimony. The referenced testimony in full was:
Q. 	Okay. Okay. So, Mr. A[], with that background questioning out of
the way, can you go ahead and tell me why you’ve been disabled since
January 1, 2020?
A. 	Oh, it’s, I mean, going into with everything I’ve had, to previous
injuries that I was pushing through from a bad car wreck and then with
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everything else, the house I had bought, I had got turned away that and I
started feeling all nasty and everything. And, of course, you know, COVID
was setting in and everything was going chaotic, so I didn’t have an actual
primary at the time and so I just tried to push through and see what was
happening and come to find out that it was Lyme. And then that triggered a
whole bunch of other stuff that just went real crazy on me.
Q. 	When did you get diagnosed with Lyme disease?
A. 	I believe it was July of ’21.
Tr. at p. 31. So while it is true that Plaintiff referenced his Lyme Disease diagnosis, the
discussion of the related symptoms came only after the ALJ himself asked Plaintiff to
discuss those symptoms, id. at pp. 31-32, so it seems that focus was driven by the ALJ’s
questioning, not Plaintiff himself.
Relatedly, while the ALJ’s decision notes that Plaintiff testified that he did not
seek treatment for Lyme Disease-related testimony until July 2021, Tr. at p. 14, the Court
does not see any such testimony in the hearing record. 	At most, Plaintiff’s testimony
could be interpreted to reference the difficulties in seeking medical care in the first half
of 2020, when COVID-19 first impacted the United States. Those difficulties, especially
for those not seeking treatment for COVID itself, are well documented. 	See Wayne
Kenneth R. v. Comm’r of Soc. Sec., 2022 WL 4537909, at *6 (S.D.N.Y. July 4, 2022),
report and recommendation adopted sub nom. Reed v. Comm’r of Soc. Sec., 2022 WL
4538942 (S.D.N.Y. Sept. 28, 2022) (noting limitations on “non-essential” medical visits
during early days of Covid-19 pandemic); cf. United States v. Martinez Encinias, 682 F.
Supp. 3d 993, 1003 (D.N.M. 2023) (noting limitations on nonessential medical care
imposed in some prison systems at start of pandemic). The potential “misconstruction”
of Plaintiff’s testimony warrants remand. 	Poles v. Colvin, 2015 WL 6024400, at *6
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(W.D.N.Y. Oct. 15, 2015); see also Munoz v. Saul, 2022 WL 939712, at *5 (E.D.N.Y.
Mar. 29, 2022).
These factors raise questions about the ALJ’s evaluation of the record and its
application 	to 	the 	proper 	legal 	standards 	which 	warrant 	a 	remand 	for 	further
consideration.
IV. CONCLUSION
WHEREFORE, for the reasons stated herein, it is hereby
RECOMMENDED, that the Plaintiff’s Motion for Judgment on the Pleadings
(Dkt. No. 9) be GRANTED; and it is further
RECOMMENDED, that Defendant’s Motion for Judgment on the Pleadings
(Dkt. No. 12) be DENIED; and it is further
RECOMMENDED, 	that 	Defendant’s 	decision 	denying 	Plaintiff 	disability
benefits be REVERSED and the matter be REMANDED pursuant to section four for
further proceedings; and it is
ORDERED, that the Clerk of the Court shall serve copies of this Report-
Recommendation and Order on the parties.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen 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 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d
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15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
Dated: 	February 3, 2026
Albany, New York
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