Case Name in Social Security Case - Unavailable

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LUIS CARRASQUILLO,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MEMORANDUM & ORDER
23-CV-02323 (NRM)
NINA R. MORRISON, United States District Judge:
Plaintiff Luis Carrasquillo (“Plaintiff”) brings this action under 42 U.S.C.
§ 405(g) seeking judicial review of the Social Security Administration’s (“SSA”) denial
of his claim for a period of disability and Disability Insurance Benefits (“DIB”).
Plaintiff 	argues 	that 	the 	Administrative 	Law 	Judge’s 	(“ALJ”) 	decision 	is 	not
supported by substantial evidence and does not properly apply the relevant legal
standards. Specifically, Plaintiff challenges the ALJ’s conclusion that he retains the
residual functional capacity to resume his past relevant work as a financial crimes
detective. Plaintiff also argues the ALJ erred by failing to clarify Plaintiff’s physical
limitations by either recontacting the consultative medical examiner or ordering a
new consultative examination.
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The parties have cross-moved for judgment on the pleadings. ECF No. 8-1, 10-
1. 	Plaintiff seeks reversal of the Commissioner’s decision and remand for a new
administrative hearing. The Commissioner moved to affirm its decision and dismiss
Plaintiff’s action. 	For the reasons set forth below, the Court GRANTS Plaintiff’s
motion for judgement on the pleadings and denies the Commissioner’s motion. 	The
case is remanded to the original ALJ for further proceedings consistent with this
ORDER.
BACKGROUND
I. 	Procedural History
On March 17, 2020, Plaintiff filed a Title II application for a period of disability
and DIB, alleging a disability onset date of February 12, 2020. 	See Certified
Administrative Record (“A.R.”) 13, 204–10, 	ECF No. 6.1 	This claim was denied
initially on December 8, 2020, A.R. 89, and was denied again on reconsideration on
June 14, 2021, A.R. 101. Plaintiff then filed a written request for a hearing before an
ALJ on July 2, 2021. A.R. 113–14.
On February 3, 2022, ALJ Dina Loewy held a telephone hearing. 	A.R. 30.
Plaintiff was present at the hearing and was represented by counsel. 	A.R. 30 	By
decision dated June 1, 2022, the ALJ found that Plaintiff was not disabled for the
purposes of disability and DIB under § 216(i) and § 223(d) of the Social Security Act.
A.R. 25.
1 Citations to the Administrative Record refer to the internal pagination, not
the pagination generated by the Electronic Case Filing system.
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Subsequently, Plaintiff filed an appeal with the Appeals Council on June 8,
2022. 	A.R. 202. 	On March 17, 2023, the Appeals Council denied Plaintiff's request
for review, and the ALJ’s decision became the final decision of the Commissioner.
A.R. 1–5.
On March 27, 2023, Plaintiff commenced this action. ECF No. 1. On June 26,
2023, Plaintiff moved for a judgment on the pleadings, seeking vacatur and remand
of the ALJ’s decision. 	ECF No. 8-1, Plaintiff Motion (“P. Mot.”), at 1, 16. 	The
Commissioner then cross-moved for judgment on the pleadings, seeking affirmation
of its final decision that Plaintiff was not entitled to DIB payments. 	ECF No. 10-1,
Defendant Motion (“D. Mot.”) at 1, 28.
II. 	Plaintiff’s Claimed Disability
Plaintiff claims that he has a spinal cyst (syringomyelia) which has caused a
lack of feeling in parts of his body. 	P. Mot. at 3–4. 	He argues that he has marked
trouble walking, sitting for long periods of time, lifting items over 5 pounds, typing,
and writing. Id. Because of his alleged disability, he contends that he was not able
to work his job as a financial crimes investigator in the NYPD. Id.
III. 	Medical Records
The administrative record included treatment notes and other records from
Plaintiff’s 	medical 	providers; 	their 	findings 	as 	relevant 	to 	Plaintiff’s 	claimed
disability are summarized here.
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A. Dr. Alexander Gecht
Plaintiff’s general practitioner, Dr. Alexander Gecht, provided treatment notes
dating from February 2018 to May 2020. A.R. 324–61. Plaintiff visited Dr. Gecht six
times before his alleged disability onset date of February 12, 2020. 	A.R. 324–61.
During his first visit, in February 2018, Plaintiff complained of back and right leg
pain, A.R. 356–61; during his second visit in May 2018, Plaintiff again complained of
back pain and also apneic events but did not complain of any leg pain, A.R. 351–56;
during his third visit, an annual physical in May 2019, Plaintiff again complained of
lower back pain and apneic events, but his systems were observed to be generally
normal, A.R. 345–50; during his fourth visit, one week later in June 2019, a hernia
exam showed right and left inguinal hernias present, so Plaintiff was referred to a
specialist for an inguinal hernia repair, A.R. 340–44; during his fifth visit, in
November 2019, Plaintiff complained of “weight gain/obesity” and apneic events, but
his systems were observed to be generally normal and he denied suffering from any
pain, A.R. 335–39; during his sixth visit, in December 2019, Plaintiff complained of
hypertension, hyperlipidemia, and diabetes mellitus type 2, but his remaining
systems were observed to be normal and he denied suffering from any pain, A.R. 329–
34. Finally, Plaintiff had a telehealth call with Dr. Gecht in May 2020, the first visit
since his alleged disability onset date of February 12, 2020, where he reported
suffering from a headache for the last five days and experiencing moderate back and
limb pain. A.R. 324–27. Dr. Gecht instructed Plaintiff to diet, exercise, and increase
his medication (Lisinopril). A.R. 326.
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B. Dr. Dany Elsayegh
Plaintiff saw pulmonologist Dr. Dany Elsayegh on three occasions between
June 2019 and December 2019. A.R. 308–14. Following a sleep study, Plaintiff was
advised to use a continuous positive air pressure (“CPAP”) machine to alleviate his
severe obstructive sleep apnea. 	A.R. 312, 315–16. 	In December 2019, Plaintiff
reported that he was using and benefiting from the CPAP machine. 	A.R. 313–14.
Nearly eighteen months later, in May 2021 — more than a year after Plaintiff’s
disability 	onset 	date 	— 	Plaintiff 	spoke 	with 	Dr. 	Elsayegh during 	a 	follow-up
telehealth call where Plaintiff again reported using and benefiting from the CPAP
machine, but he also reported suffering from mild intermittent asthma, neck pain,
leg weakness, obesity, hypertension, a non-recurrent unilateral inguinal hernia, sleep
apnea, syrinx, and right upper extremity weakness. A.R. 442. Plaintiff was advised
to continue using his CPAP machine and to attempt losing weight. A.R. 442. Plaintiff
had a second telehealth call with Dr. Elsayegh in January 2022 where he reported
suffering from the same problems and was given the same advice. A.R. 430.
C. Dr. Michael Castellano
In July 2019, Plaintiff underwent surgery to repair his bilateral inguinal
hernias. A.R. 387–95. Following the successful surgery, Plaintiff’s medical surgeon,
Dr. Michael Castellano, advised him to avoid any heavy lifting or strenuous activity
for several weeks. A.R. 367, 387.
D. Dr. Yasir El-Sherif
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Plaintiff visited his neurologist, Dr. Yasir El-Sherif, for a follow-up visit in
October 2019, where he reported neck pain, weakness and a burning sensation in his
right arm, and weakness in his right leg with no difficulty walking but pain with
prolonged standing. A.R. 303. Following a neurological exam, Dr. El-Sherif observed
Plaintiff with right arm weakness (4+/5), decreased vibration in his right arm, and
decreased temperature in his right face, arm, and leg. 	A.R. 303. 	Plaintiff was
diagnosed with cervicalgia, traumatic syrinx,2 and was advised to continue his dosage
of 	Amitriptyline, 	increase 	his 	dosage 	of 	Gabapentin, 	and undergo 	a 	magnetic
resonance imaging (MRI) of his cervical and thoracic spine. A.R. 304.
In April 2020, two months after his alleged disability onset date, Plaintiff had
a telehealth call where he and Dr. El-Sherif discussed how, despite his continuing
neck pain, the December 2019 MRI showed his syrinx was stable.3 A.R. 320. Plaintiff
2 In February 2010, prior to the relevant period, Plaintiff was diagnosed with
syringomyelia involving the distal cervical spinal cord and upper thoracic spinal cord.
A.R. 378. 	“Syringomyelia is a neurological disorder in which a fluid-filled cyst
(syrinx) forms within the spinal cord. 	The syrinx can get big enough to damage the
spinal cord and compress and injure the nerve fibers that carry information to and
from the brain to the body.” Syringomyelia, Nat’l Inst. of Neurological Disorders and
Stroke, https://www.ninds.nih.gov/health-information/disorders/syringomyelia (last
visited Aug. 6, 2025).
3 	The 	Administrative 	Record 	also 	includes 	the 	results 	from 	Plaintiff’s
December 2019 MRI of his cervical spine and thoracic spine. A.R. 397–414. Though
the images were motion degraded, the cervical spine MRI results showed: (1) mild
cervical spondylosis without significant canal or foraminal narrowing; (2) no cord
compression; and (3) “[p]reviously seen cord syrinx extending to the C5 level now is
only more conspicuous starting around C7 level, unclear if this is due to motion or
overall decreased size of syrinx.” A.R. 400. MRI results of the thoracic spine showed:
“[d]ecreased cord expansion and size of previously characterized distal cervical/upper
thoracic cord syrinx”; “[n]o new cord signal abnormality allowing for motion”; and
“[n]o cord compression or significant canal stenosis in the thoracic spine.” A.R. 400.
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reported that lately he was experiencing more pain and numbness going down his
arm, but the Gabapentin was lessening these symptoms significantly. 	A.R. 320.
Plaintiff also reported that he was having a lot of stress due to the COVID-19
pandemic and to being at home watching his 4-year-old son every day while his wife
worked, but he indicated he was closing on a house in Florida where he planned to
live for most of the year. A.R. 320.
On June 29, 2021, Plaintiff had a telehealth videocall with Dr. El-Sherif where
Plaintiff reported that, over the last few months, he had been experiencing daily gait
imbalance and increasing pain in his neck and extremities. A.R. 441. Plaintiff also
reported feeling a burning sensation down his arm and indicated he was experiencing
no difficulty with walking, only right leg pain with prolonged standing. 	A.R. 441.
Although Dr. El-Sherif found it difficult to assess Plaintiff’s gait because they were
meeting over video, he did note that Plaintiff’s gait seemed wide, and he assessed
that it may be due to expansion of Plaintiff’s syrinx or another central cause. 	A.R.
441. Dr. El-Sherif ordered an MRI of Plaintiff’s brain and cervical spine. A.R. 441.
IV. 	Medical Evaluations
Three doctors provided the ALJ with their evaluations of Plaintiff’s medical
conditions as related to his claimed disability. 	Only one of these doctors, Dr. Silvia
Aguiar, actually examined Plaintiff for this purpose. The other doctors’ opinions are
based on an analysis of his records.
A. Dr. Silvia Aguiar’s First Examination
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On November 16, 2020, Plaintiff attended a consultative examination with Dr.
Silvia Aguiar. A.R. 416–20. Dr. Aguiar listed Plaintiff’s chief complaints to be neck
pain, upper back pain, right upper extremity pain, hypertension, asthma, and
prediabetes. A.R. 416. Dr. Aguiar also noted that Plaintiff reported “persistent pain
on the upper back, neck and right upper extremity all the way down to the fingers of
the right hand[,] . . . severe imbalance on walking[,] . . . [and] a history of falls
[including] . . . in 2010 [when] he fell at work and most recently approximately one
month ago [when] he fell when walking on the street with his family.” 	A.R. 416.
Plaintiff reported that his daily activities were limited because “[h]is girlfriend does
all the activities of daily living,” except he did report showering daily, dressing
himself daily, watching TV, and listening to the radio. 	A.R. 417. 	Upon physical
examination, Dr. Aguiar found Plaintiff had a normal gait, appeared to be in no acute
distress, and used no assistive devices. A.R. 417. Dr. Aguiar also noted that Plaintiff
had an ability to rise from his chair without difficulty, walk on his heels and toes
without difficulty, complete a full squat, and change his clothing and get on and off
the exam table without help. A.R. 417. Dr. Aguiar’s musculoskeletal exam revealed
Plaintiff had reduced range of motion in his cervical spine and shoulders, no scoliosis,
kyphosis, or abnormality in his thoracic spine, full range of motion in his lumbar
spine, a straight leg test at 10 degrees on his right and negative on his left, and full
range of motion bilaterally in his elbows, forearms, wrists, hips, knees, and ankles.
A.R. 418. Upon neurological examination, Dr. Aguiar found full strength in Plaintiff’s
upper and lower extremities. 	A.R. 418–19. 	However, Dr. Aguiar noted a sensory
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deficit on Plaintiff’s right side, including his fingers and lower extremity, all the way
down to his right foot and toes. A.R. 418–19. Examination of Plaintiff’s extremities
was negative for cyanosis, clubbing, edema, significant varicosities, significant
trophic changes, and muscle atrophy evidence. A.R. 419. Dr. Aguiar found Plaintiff’s
hand and finger dexterity to be intact, his grip strength to be a 4/5 on the right and
5/5 on the left; Dr. Aguiar also noted that Plaintiff was able to zip, button, and tie.
A.R. 419.
Dr. Aguiar diagnosed Plaintiff with the following conditions: upper back pain;
neck pain; right upper extremity pain; right hand and finger pain; imbalance; history
of asthma; prediabetes history; and hypertension. A.R. 419. Importantly, Dr. Aguiar
opined that Plaintiff had “marked limitations” for performing “activities that require
grasping, holding, and handling objects with the right hand, heavy lifting, carrying,
pushing, and pulling with the upper extremities bilaterally;” and also “marked
limitations” when experiencing “prolonged standing, prolonged walking, climbing
stairs, kneeling, and crouching.” A.R. 419. Dr. Aguiar advised that Plaintiff should
“avoid any positional activities that require balance due to history of frequent falls.”
A.R. 419.
B. Dr. V. Cincore
On December 2, 2020, a non-examining State agency medical consultant, Dr.
V. Cincore, reviewed the available records and concluded that Plaintiff suffered from
three severe impairments: (1) DDD (Disorders of Back-Discogenic and Degenerative);
(2) Essential hypertension; and (3) Migraines. A.R. 57. However, Dr. Cincore opined
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that Plaintiff’s “statements concerning the intensity, persistence and limiting effects
of these symptoms” were “generally not consistent with the evidence of record.” A.R.
58. Dr. Cincore concluded that Plaintiff had the physical capacity to: occasionally lift
and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand/walk or sit for
about 6 hours in an 8-hour workday with normal breaks; occasionally push/pull on
the right side due to Syringomyelia with marked neuropathy; and occasionally climb
ramps/stairs, ladders/ropes/scaffolds, balance, stoop, kneel, crouch, and crawl. 	A.R.
59–60. As to Plaintiff’s manipulative limitations, Dr. Cincore found that Plaintiff had
reaching limitations on his right side, including being able to only occasionally reach
overhead due to a decreased range of motion in the right upper extremity. 	A.R. 61.
Dr. Cincore also noted limitations on Plaintiff’s right side with reaching “in front
and/or laterally” but no limitations for “handling,” “fingering,” and “feeling.” A.R. 61.
Regarding Dr. Aguiar’s opinion from November 16, 2020, Dr. Cincore stated
that it was “not inconsistent with medical findings,” but “does limit the claimant
further than the preponderance of the medical evidence suggests” and was “without
substantial support . . . which renders it less persuasive.” A.R. 59, 63.
C. Dr. Silvia Aguiar’s Second Examination
On May 26, 2021, Plaintiff visited Dr. Aguiar for a second consultative
examination. 	A.R. 423–427. 	Although much of the findings were the same, there
were a few notable changes. 	Plaintiff’s chief complaints changed slightly from the
previous visit. Plaintiff now reported suffering from lower back pain instead of upper
back 	pain, 	as 	well 	as 	GERD, 	hypertension, 	and 	dizziness, 	and 	he 	no 	longer
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complained of prediabetes, neck pain, or upper extremity pain. 	A.R. 423; see A.R.
416. Dr. Aguiar found Plaintiff’s physical examinations were largely the same, except
this time he was found to have a reduced squat (1/4) and a reduced range of motion
in his lumbar spine. A.R. 424–25; see A.R. 417–18. Additionally, Dr. Aguiar’s second
report indicated that Plaintiff had full grip strength in both hands, and no longer had
any sensory deficit on his right side — where Dr. Aguiar had previously noted sensory
deficits in Plaintiff’s fingers and all the way down his lower extremity. A.R. 425–26;
see A.R. 418–19.
For the first time, during the second examination, Dr. Aguiar diagnosed
Plaintiff with lower back pain (where previously she had only diagnosed upper back
pain), GERD, asthma, obstructive sleep apnea, hypertension, and dizziness. 	A.R.
426. Diagnoses present during the first examination but not the second examination
were: neck pain; right upper extremity pain; right hand and finger pain; imbalance;
and prediabetes history. See A.R. 419.
Dr. Aguiar’s opinions as to Plaintiff’s physical limitations also changed to some
degree. 	During this examination, Dr. Aguiar found Plaintiff to have “marked
limitations” for “bending” and for “prolonged sitting,” after not noting any limitations
during the last examination. 	A.R. 426, 419. 	Additionally, during this examination,
Dr. Aguiar stated that Plaintiff had a “moderate limitation” for “reaching overhead,”
after not noting any limitation during the last examination, and a “moderate
limitation” for “pushing and pulling with the upper extremities bilaterally,” after
previously opining Plaintiff had a “marked limitation” in this area. 	A.R. 426, 419.
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Plaintiff was also advised, for the first time, to “avoid smoke, dust, respiratory
irritants, and other known respiratory allergens due to history of asthma.” A.R. 426.
Notably, Dr. Aguiar no longer listed Plaintiff to have any limitation for the
following: “activities that require grasping, holding, and handling objects with the
right hand”; “climbing stairs”; or “kneeling.” A.R. 419, 426. Plaintiff was still listed
to have “marked limitations” for “heavy lifting,” “carrying,” “prolonged standing,
prolonged walking, [and], prolonged crouching;” and he was once again advised to
“avoid positional activities that require balance.” A.R. 419, 426.
D. Dr. R. Pradhan
On June 10, 2021, a second non-examining State agency medical consultant,
Dr. Pradhan, reviewed the available records, including the updated reports occurring
after Dr. Cincore’s December 2020 findings. 	A.R. 68–80. 	The updated reports
included the findings from Plaintiff’s second consultative examination with Dr.
Aguiar on May 26, 2021. 	Dr. Pradhan affirmed Dr. Cincore’s findings. 	A.R. 75.
However, Dr. Pradhan additionally concluded that Plaintiff no longer possessed any
manipulative limitations. A.R. 78.
V. 	Plaintiff’s Testimony at the Hearing
Plaintiff testified at the SSA hearing on February 3, 2022. Regarding his job
duties, he stated that he primarily investigated financial crime cases and that, during
an eight-hour workday, he would sit for six or seven hours, walk for about an hour,
and lift no more than ten pounds at a time. A.R. 36. He also testified that his typical
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“daily activities” included watching TV, reading, and taking care of his 5-year-old son
— which he described as “hard work.” A.R. 37.
Plaintiff also testified as to his symptoms and physical limitations. 	A.R. 37–
42. When asked why he felt unable to work anymore, Plaintiff testified that, following
his surgery in 2010, he had experienced worsening symptoms due to a cyst on his
upper spine which had resulted in him being able to do “less and less,” caused him
“all kinds of pain,” required him to take medication that makes him very sleepy, and
caused sensory deficit to his right side. A.R. 37–38. When asked by the ALJ to focus
on the period of time no more than one year prior to his February 2020 disability
onset date, he testified as to the following:
[The sensory deficit was] getting worse . . . to the point that I could get
— to the point where I can get stabbed or cut or anything like that I
wouldn’t even feel it, I mean — which has happened where I cut my
hand or my arm. 	And to the point as well as I also have fallen on the
floor trying to go downstairs because I don’t — you know, I just don’t feel
my leg coming down. 	It comes down but I don’t — you know, the
sensation kind of pain. Basically, it’s mostly — I mean, the sensation I
lost I get burning sensation as well because it’s basically that’s a nerve
condition that I get like these tingling sensations. Sometimes I feel like
— I don’t know if this ever happened to you, but if you’re walking down
the street and you’re looking another way and you run into a pole, it
feels like your head is like cartoons where when that happens your head
shakes or the person shakes. That’s how I — I feel like that sometimes,
too. The medication basically it deals with it but not to the point where
it takes it away. 	I’ve tripped while walking down the street. 	I could
walk down the street or I can be walking and my eyes start drifting to
the left. 	And these are like some of the symptoms, besides the, you
know, besides the pain and the sensation that comes with this having
the cyst on my spine, which is my upper spine. 	And a lot of it comes
from the operation itself, too, because I mean instead of getting better I
got worse.
A.R. 38–39.
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Plaintiff also testified that he could walk for only “like two, not even two
blocks,” stand for “maybe close to a half an hour, something like that, maybe less,”
and sit for “maybe half an hour,” before lying down because the pressure on his back
becomes “unbearable.” A.R. 40–41. Plaintiff also testified that he could lift or carry
“maybe five pounds.” A.R. 41. Upon questioning from his attorney, Plaintiff testified
that the numbness and tingling in his right arm causes him difficulty with typing
and writing. A.R. 42.
VI. 	The Vocational Expert
A vocational expert (“VE”), Sheri Pruitt, also testified at the hearing as to
Plaintiff’s 	job 	requirements. 	A.R. 	42–49. 	She 	testified 	that 	Plaintiff’s 	prior
employment with the New York Police Department was classified as “detective, DOT
code 375.267-010, as defined by the DOT this is a light job, it was performed at the
sedentary level, and has an SVP of 7.” A.R. 45. The “DOT” refers to the “Dictionary
of Occupational Titles,” and the “SVP” refers to the “Specific Vocational Preparation.”
An SVP of 7 is considered a “light” exertion level. A.R. 24.
The ALJ asked Pruitt a hypothetical focused on a claimant with the same
vocational factors (age, education, and work experience) as Plaintiff. A.R. 45:
I’m going to ask you to assume that he can do sedentary work with
occasionally lifting and/or carrying ten pounds, frequently less than ten
pounds, walking one hour in an eight-hour workday with normal breaks,
standing one hour in an eight-hour workday with normal breaks, sitting
six hours in an eight-hour workday with normal breaks. 	Occasionally
climbing ramps or stairs, never climbing ladders, ropes, or scaffolds, no
balancing on uneven surfaces, no more than occasional stooping, never
kneeling, 	crouching, 	or 	crawling, 	frequently 	reaching, 	handling 	or
fingering with the right upper extremity, occasional right overhead
reaching. 	Avoid even moderate exposure to hazardous machinery,
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unprotected heights, and operational control of moving machinery,
moderate noise level.
A.R. 45–46.
In response, Pruitt said that this hypothetical claimant could complete the past
relevant work “as performed.” A.R. 46. Pruitt further agreed that this hypothetical
claimant could perform the work “as performed” even if limited to “no more than
occasional push/pull with the upper extremities.” 	A.R. 46. 	Next, Plaintiff’s counsel
asked Pruitt if the same hypothetical claimant could perform their past relevant work
“as performed” if they were also limited to only occasional use of their right hand for
all manipulative tasks. A.R. 47. Pruitt replied that this hypothetical claimant “could
not perform the past work neither as it was performed or as it’s performed generally.”
A.R. 47–48.
Finally, the ALJ asked the VE if the same hypothetical claimant could perform
their same past relevant work if it was limited to “light work” (instead of sedentary
work), with lesser limitations for “lifting and/or carrying” of “20 pounds occasionally
and less than 10 pounds frequently” (instead of 10 occasionally and less than ten
pounds frequently), and with the additional limitation of only “occasional use of the
right hand for all manipulation.” A.R. 48. In response, Pruitt said that “[b]ecause of
the occasional use of the hands,” the hypothetical claimant could not do their past
relevant work. 	Explaining her reasoning, Pruitt stated: “the DOT does say that it
requires occasional reaching, handling, and fingering but in my experience and from
what I’ve observed of the job being performed, especially with computers nowadays it
would require at least frequent reaching, handling, and fingering.” A.R. 48.
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After Pruitt concluded her testimony, Plaintiff’s counsel requested that the
ALJ order an additional consultative examination of Plaintiff to further clarify
Plaintiff’s physical limitations, specifically citing uncertainty as to Plaintiff’s ability
to complete sedentary work with more than occasional use of the right hand. 	A.R.
49–50. The ALJ did not order the additional examination, and instead took counsel’s
request “under advisement.” A.R. 50.
VII. 	The ALJ’s Decision
To be eligible for DIBs, a claimant must be found disabled within the meaning
of the Social Security Act. 20 C.F.R. § 416.920; see also 20 C.F.R. § 416.905 (defining
disability). In determining whether a claimant is disabled under the Social Security
Act, an ALJ must follow a five-step framework. Id. § 416.920(a)(4); see, e.g., Thomas
v. Comm’r of Soc. Sec., No. 20-CV-5086 (PKC), 2022 WL 523544, at *2 (E.D.N.Y. Feb.
22, 2022).
At step one, an ALJ considers the claimant’s work activity. 	If a claimant is
“doing substantial gainful activity,” an ALJ will find the claimant not disabled. 	20
C.F.R. § 416.920(a)(4)(i).
At step two, an ALJ determines whether a claimant suffers from a “severe
medically determinable physical or mental impairment.” 	Id. § 416.920(a)(4)(ii). 	An
impairment 	must 	meet 	the 	“duration 	requirement 	in 	§ 416.909”: 	Unless 	the
“impairment is expected to result in death,” the impairment “must have lasted or
must be expected to last for a continuous period of at least 12 months.” Id. § 416.909.
If a claimant does not have an impairment or impairments that meets the duration
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requirement, an ALJ will find the claimant not disabled. 	Id. § 416.920(a)(4)(ii). 	If
the duration requirement is met, an ALJ proceeds to step three.
At step three, an ALJ determines whether a claimant's impairment “meets or
equals” one of the impairments listed in appendix 1 to subpart P of part 404 of the
Social Security Act (the “Listings”). 	Id. § 416.920(a)(4)(iii). 	If the impairment does,
a claimant will be found disabled. Id. If a claimant's impairment “does not meet or
equal a listed impairment,” an ALJ must “assess and make a finding about [the
claimant’s] residual functional capacity.” Id. § 416.920(e).
At step four, the residual functional capacity (“RFC”) is considered in relation
to claimant’s “past relevant work.” 	Id. § 416.920(a)(4)(iv). 	If a claimant is able to
perform “past relevant work,” they will be found not disabled. 	Id. 	If a claimant is
unable to perform past relevant work, an ALJ proceeds to step five.
At step five, the RFC is considered along with the claimant’s “age, education,
and work experience” to determine whether the claimant can “make an adjustment
to other work.” Id. § 416.920(a)(4)(v). If a claimant “cannot make an adjustment to
other work,” the claimant will be found disabled. Id.
Here, the ALJ’s analysis followed the five-step evaluation framework required
by 20 C.F.R. § 416.920. 	At step one, the ALJ found Plaintiff had not engaged in
substantial gainful activity since his alleged onset date of February 12, 2020. 	A.R.
16. 	At step two, the ALJ found Plaintiff’s “ability to perform basic work activities”
was limited by three severe impairments: (1) obesity; (2) syringomyelia; and (3) sleep
apnea. 	A.R. 16. 	The ALJ also found that Plaintiff’s additional diagnoses of
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“cervicalgia, hyperlipidemia, hypertension, diabetes mellitus, asthma and inguinal
hernia” were “non-severe medically determinable impairments because they have not
caused more than a minimal effect on [his] ability to perform basic work activities.”
A.R. 17.
At step three, the ALJ determined that Plaintiff’s impairments did not meet or
medically equal the severity of one of the Listings. 	A.R. 17. 	At the onset, the ALJ
found Plaintiff’s “obesity, syringomyelia, and sleep apnea” do not exactly match a
specific listing, and then found “the functional effects of these impairments do not
equal any medical listing.” A.R. 17. Still, the ALJ considered four Listings. A.R. 17.
First, the ALJ considered Listing 1.15 (“Disorders of the skeletal spine resulting in
compromise of a nerve root(s)”) but found Plaintiff did not meet the criteria because
he “does not have a documented medical need for an assistive device that involves the
use of both hands or an inability to use an upper extremity for work-related activities
involving fine and gross movements.” 	A.R. 17. 	Second, the ALJ considered Listing
11.08 (spinal cord disorders) but found Plaintiff’s syringomyelia did not meet the
requirements of this listing either. A.R. 17. Last, the ALJ considered Listings 3.09
and 4.02 when assessing Plaintiff’s sleep apnea before finding his condition did not
meet “the requirements of these listings.” A.R. 17. The ALJ also stated that, while
reaching her conclusions, she considered the factors in SSR 19-2p. A.R. 18; see SSR
19-2p (addressing how ALJs should consider the impact of a claimant’s obesity in
disability claims).
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After the ALJ concluded that Plaintiff’s impairments did not meet or medically
equal the impairments in the Listings, the ALJ then determined Plaintiff’s RFC. A.R.
18. 	The ALJ found Plaintiff was able to perform “sedentary work” as defined in 20
CFR 404.1567(a):
[T]he claimant can occasionally lift and/or carry 10 pounds, less than 10
pounds frequently. The claimant can walk 1 hour in an 8-hour workday
with normal breaks and stand for 1 hour in an 8-hour workday with
normal breaks. The claimant can sit 6 hours in an 8-hour workday with
normal breaks. The claimant can occasionally climb ramps or stairs, but
can never climb ladders, ropes, or scaffolds. 	The claimant can never
balance on uneven surfaces. 	The claimant is limited to no more than
occasionally stooping, but he can never kneel, crouch, or crawl. 	The
claimant is limited to frequent reaching, handling, and fingering with
his right upper extremity. 	The claimant is 	limited to occasional
overhead reaching with his right upper extremity. 	The claimant must
avoid even moderate exposure to hazardous machinery, unprotected
heights, and operational control of moving machinery. The claimant is
limited to a moderate noise level. 	The claimant is limited to no more
than occasional push/pull with the upper extremities.
A.R. 18.
The 	ALJ 	focused 	on 	Dr. 	Aguiar’s 	opinions 	that 	Plaintiff 	“had 	marked
limitations with prolonged standing, prolonged walking, climbing stairs, kneeling,
and crouching,” and “a marked limitation with performing activities that require
grasping, holding, and handling objects.” 	A.R. 22. 	The ALJ found these opinions
“unpersuasive 	because 	they 	are 	inconsistent 	with 	[Plaintiff’s] 	consultative
examination 	findings,” 	as 	well 	as 	the 	“relatively 	benign 	physical 	findings 	of
[Plaintiff’s] treating providers.” A.R. 22. The ALJ specifically then found Dr. Cincore
and Dr. Pradhan’s opinions, which were not based on physical examinations of
Plaintiff, as “persuasive because [of] the totality of [Plaintiff’s] impairments.” 	A.R.
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23. The ALJ also denied Plaintiff’s request for a further consultative examination to
resolve any inconsistencies because Dr. Aguiar’s “opinion . . . is unsupported by [her]
own clinical findings.” A.R. 23.
Thus, at step four, the ALJ found that Plaintiff is not disabled because, at the
time of the hearing, he was capable of performing past relevant work as a “Detective.”
A.R. 24. 	Under the DOT, the “detective” title is listed under code 375.267-010 and
has an SVP of 7, which is considered a “light” exertion level. A.R. 24. However, the
ALJ found that Plaintiff’s past relevant work as a detective was actually performed
at the sedentary exertion level. 	A.R. 24. 	Accordingly, the ALJ found Plaintiff was
not capable of performing his past relevant work as a detective as it was generally
performed in the national economy (at a light exertion level) but was capable of
performing the job as he actually performed it (at a sedentary exertion level). 	A.R.
24. 	The ALJ found that Plaintiff’s past work as a detective would “not require the
performance 	of 	work-related 	activities 	precluded 	by 	the 	[Plaintiff’s] 	residual
functional capacity.” A.R. 24. The ALJ reasoned:
Although the claimant initially reported having to restrain unruly
citizens and lifting as much as 100 pounds, he thereafter reported lifting
no more than 10 pounds at his past relevant work (Ex. 2E/2, 6E/3).
When questioned at the hearing regarding this discrepancy, he testified
that he worked an office job at a desk, investigating financial crime
cases. He testified that he sat for 6–7 hours, walked one hour, stood for
one hour, lifted less than 10 pounds and did no crouching, stooping,
kneeling, or crawling at this job.
A.R. 24.
The ALJ also found that the “vocational expert’s statements are consistent
with the information contained in the [DOT].” 	A.R. 24. 	Explaining that since the
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DOT “does not consider the limitation of overhead reach, the vocational expert
testified that she based her opinion on her professional experience . . . [and t]his
explanation is reasonable and accepted in accordance with SSR 00-4p.” A.R. 24.
Because the ALJ determined Plaintiff could perform past relevant work, the
ALJ did not proceed to step five. See A.R. 24. The ALJ then concluded that Plaintiff
was not disabled as defined under the Social Security Act from the alleged onset date
of February 12, 2020 through the date of the ALJ’s decision on June 1, 2022. 	A.R.
24–25.
STANDARD OF REVIEW
In reviewing a final decision of the Commissioner of Social Security, the court
must determine whether the Social Security Administration’s conclusions were
“supported by substantial evidence in the record and were based on a correct legal
standard.” 	Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (citation omitted).
Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” 	Schillo v. Kijakazi, 31 F.4th 64, 74 (2d Cir.
2022) (citation omitted). 	In making the determination as to whether the Social
Security Administration’s findings are supported by substantial evidence, “the
reviewing court is required to examine the entire record, including contradictory
evidence.” Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam). “If
there is substantial evidence to support the determination, it must be upheld.” Selian
v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (citing Moran v. Astrue, 569 F.3d 108, 112
(2d Cir. 2009)).
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DISCUSSION
Plaintiff argues that the ALJ’s decision was not supported by substantial
evidence and did not properly apply the relevant legal standard. 	See P. Mot. at 10.
Specifically, Plaintiff argues that the ALJ’s finding at step four that Plaintiff was
capable of “meeting the exertional and postural requirements of his past work” was
“without evidentiary support.” Id. at 11. Plaintiff asserts the ALJ erred when finding
Plaintiff had the RFC for “frequent reaching, handling, and fingering with his right
upper extremity.” Id. at 15.
Plaintiff also argues that the ALJ erred when finding Dr. Aguiar’s RFC
assessment to be “unpersuasive” and “not supported” by the clinical findings or
treatment records. 	He also challenges the ALJ’s reliance on the opinions of non-
examining State agency medical consultants, Drs. Cincore and Pradhan. 	Id. at 13–
14. 	Last, Plaintiff asserts: “If the ALJ was genuinely concerned that Dr. Aguiar’s
RFC assessment was inconsistent with the clinical findings, she could have readily
reached 	out 	to 	her 	for 	clarification. Alternatively, 	she 	could 	have 	ordered 	a
consultative examination to be conducted by another physician or she might have
obtained testimony of a physician to evalua[t]e [] the clinical evidence and to address
Dr. Aguiar’s RFC assessment.” 	P. Mot. at 13–14. 	In response, the Commissioner
argues that “substantial evidence supports the ALJ’s findings” where (1) the ALJ
“properly determined that the evidence failed to support limitations beyond those set
forth in the RFC,” (2) the ALJ properly evaluated and weighed the persuasiveness of
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the medical opinions, and (3) the ALJ did not err by declining to seek clarification or
additional information as to Plaintiff’s RFC. D. Mot. at 17–28.
For the reasons set forth below, the Court grants Plaintiff’s motion and
remands for further proceedings because the ALJ’s decision was not supported by
substantial evidence as the record was not adequately developed.
I. 	Medical Opinions
The ALJ reviewed medical source statements from three physicians: non-
examining 	State 	Agency 	medical 	consultants 	Drs. 	Cincore 	and 	Pradhan, 	and
consultative medical examiner Dr. Aguiar — who examined Plaintiff twice over a six-
month period and submitted a report after each examination.
Because Plaintiff filed his application for DIB after March 27, 2017, “the ALJ’s
review of medical opinions was governed by 20 C.F.R. § 416.920c.” 	Wickham v.
Comm’r of Soc. Sec., No. 24-2045, 2025 WL 1419338, at *2 (2d Cir. May 16, 2025)
(summary order). 	Under 20 C.F.R. § 416.920c, “the ALJ [is] not required to give
special deference to the opinion of [Plaintiff’s] treating physician.” 	Rushford v.
Kijakazi, No. 23-317, 2023 WL 8946622, at *1 (2d Cir. Dec. 28, 2023). “Instead, the
ALJ was only obliged to consider the submitted medical opinions based on several
factors set forth in the regulations and to explain how the two ‘most important’ factors
– supportability and consistency – applied to each opinion.” 	Id.; see also Wickham,
2025 WL 1419338, at *2 (explaining that 20 C.F.R. § 416.920c “requires the ALJ to
consider supportability and consistency when evaluating the weight to give a medical
opinion”). 	“Specifically, the ‘more relevant the objective medical evidence and
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supporting explanations’ underlying the medical opinion, the more persuasive the
medical opinion should be.” 	Wickham, 2025 WL 1419338, at *2 (citing 20 C.F.R.
§ 416.920c(c)(1)). 	“And the ‘more consistent a medical opinion[ ] . . . is with the
evidence from other medical sources and nonmedical sources in the claim,’ the more
persuasive the medical opinion should be.” 	Id. (citing § 416.920c(c)(2)) (internal
alteration included).
A. Consultative Examinations
“A consultative examination is used to ‘try to resolve an inconsistency in the
evidence, or when the evidence as a whole is insufficient to allow [the ALJ] to make
a determination or decision’ on the claim.” 	Tankisi v. Comm’r of Soc. Sec., 521 F.
App’x 29, 32 (2d Cir. 2013) (citing 20 C.F.R. §§ 404.1519a(b), 416.919a(b)). “It can be
reversible error for an ALJ not to order a consultative examination when an
examination is required for an informed decision.” 	Id. (citing Falcon v. Apfel, 88 F.
Supp.2d 87, 91 (W.D.N.Y. 2000)). 	“However, an ALJ is not required to order a
consultative examination if the facts do not warrant or suggest the need for it.” 	Id.
(citations omitted). Ultimately, “the decision whether to seek the opinion of a medical
expert is discretionary.” 	Falco v. Comm’r of Soc. Sec., No. 21-CV-02999 (JS), 2025
WL 510061, at *9 (E.D.N.Y. Feb. 14, 2025) (citing Lupo v. Saul, No. 17-CV-1722
(JMA), 2020 WL 6873438, at *10 (E.D.N.Y. Nov. 23, 2020)).
SSA regulations provide that an ALJ “may require a consultative examination”
when needed to “resolve an inconsistency in the evidence” or if “the evidence as a
whole is insufficient to allow [them] to make a [disability] determination.” 	20 CFR
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§ 404.1519a(b). 	Two examples provided in the SSA’s regulations are: (1) “The
additional evidence needed is not contained in the records of [a claimant’s] medical
sources;” or (2) “There is an indication of a change in [a claimant’s] condition that is
likely to affect [their] ability to work, but the current severity of [their] impairment
is not established.” 20 CFR § 404.1519a(b)(1), (4).
In the end, “[n]othing in the regulation indicates that an ALJ’s ultimate
determination of disability or assessment of RFC must comport with a specific
medical opinion.” Rubin v. Martin O’Malley, Comm’r of Soc. Sec., 116 F.4th 145, 155
(2d Cir. 2024). However, “it is [ ] not insignificant” when “the record does not include
a medical opinion concluding that [a claimant] can perform substantial gainful work.”
Id. at 156.
B. The ALJ’s Assessment of the Medical Opinions
The 	ALJ 	found 	Dr. 	Aguiar’s 	opinions 	“unpersuasive 	because 	they 	are
inconsistent with h[er] consultative examination findings.” 	A.R. 22. 	The ALJ was
not persuaded by Dr. Aguiar’s opinions addressing Plaintiff’s physical limitations.
The ALJ explained: “Marked limitations are not supported by normal ambulation
skills, full muscle strength in the claimant’s bilateral upper and lower extremities
and hand and finger dexterity, [and] [t]hey [are] also inconsistent with the relatively
benign physical findings of the claimant’s treating providers and do not rise to a
marked level.” A.R. 22.
After 	finding 	Dr. 	Aguiar’s 	opinions 	unpersuasive, 	the 	ALJ 	then 	denied
Plaintiff’s request for another consultative examination or medical expert opinion.
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A.R. 22–23. 	The ALJ reasoned that, although Plaintiff’s request was based on Dr.
Aguiar’s opinion from the first examination that Plaintiff had a marked limitation for
performing manipulative activities with his right upper extremity, Dr. Aguiar’s
opinion was “unsupported by the examiner’s own clinical findings” where Plaintiff’s
“hand and finger dexterity was noted to be intact with 5/5 grip strength on the left
and 4/5 on the right, he was able to zip, button, and tie and although sensory deficit
was noted on the right, strength was 5/5 in the upper [] extremities.” A.R. 23 (citing
A.R. 416–18). 	The ALJ further relied on the fact that, during Plaintiff’s second
examination with Dr. Aguiar more than six months later, Plaintiff was noted to have
“full muscle strength in the bilateral upper extremities with no sensory deficit noted,
no 	muscle 	atrophy, 	intact 	hand 	and 	finger 	dexterity 	and 	full 	grip 	strength
bilaterally.” A.R. 23 (citing A.R. 423–26).
The ALJ then found the non-examining consultants’ opinions that Plaintiff
possessed an RFC at the light exertion level to be persuasive due to “the totality of
the claimant’s impairments, physical examination findings, and hearing testimony.”
A.R. 23. 	However, the ALJ ultimately assessed Plaintiff to have an RFC at the
sedentary exertion level after giving him “the benefit of the doubt.” 	A.R. 23. 	Last,
the ALJ cited Plaintiff’s December 2019 MRI of his cervical and thoracic spine,
Plaintiff’s statements that he watches his four-year-old child every day while his wife
works, and a few of Dr. Aguiar’s observations during Plaintiff’s second examination.
A.R. 23.
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Even though none of Plaintiff’s treating physicians submitted a medical source
statement, such statements were not necessarily required because “[t]he Second
Circuit has held that the absence of a medical source statement from a treating
provider does not require remand where ‘the record contains sufficient evidence from
which an ALJ can assess the petitioner’s residual functional capacity.’” 	Marinix R.
v. Comm’r of Soc. Sec., No. 23-CV-08071 (GRJ), 2024 WL 4579477, at *5 (S.D.N.Y.
Oct. 25, 2024) (quoting Tankisi, 521 F. App’x at 33–34 ). 	And, despite Plaintiff’s
contention, the ALJ did not inherently err by finding the non-examining physicians,
Drs. Cincore and Pradhan, more persuasive than the examining physician, Dr.
Aguiar. 	See Parent v. O’Malley, No. 23-917, 2024 WL 3342463 *2 (2d Cir. July 9,
2024) (summary order) (finding the ALJ did not act improperly when concluding that
the non-examining consultants’ opinions were more persuasive than the examining
consultant’s opinions). 	However, the Court is also mindful that “[t]he opinion of a
non-examining physician cannot constitute substantial evidence on its own and as
such should not be heavily relied upon by an ALJ.” 	Fintz v. Kijakazi, No. 22-CV-
00337 (KAM), 2023 WL 2974132, at *6 (E.D.N.Y. Apr. 15, 2023) (citing Avila v.
Comm’r of Soc. Sec. Admin., No. 20-CV-1360 (ER) (DF), 2021 WL 3774317, at *20
(S.D.N.Y. Aug. 9, 2021)).
C. Development of the Record
The Court now turns to the Plaintiff’s claim that the ALJ failed to sufficiently
develop the record. Plaintiff argues that “[i]f the ALJ was genuinely concerned that
Dr. Aguiar’s RFC assessment was inconsistent with the clinical findings, she could
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readily have reached out to her for clarification.” 	P. Mot. at 13. 	In the alternative,
Plaintiff claims that the ALJ “could have ordered a consultative examination to be
conducted 	by 	another 	physician, 	or 	she 	might 	have 	obtained 	testimony 	of 	a
physician . . . to address Dr. Aguiar’s RFC assessment.” 	Id. at 13–14. 	The Court
agrees and finds that the ALJ’s failure to do so before assessing the supportability
and consistency of Dr. Aguiar’s medical opinions requires a remand.
In reviewing a final decision of the Commissioner, a court must determine
whether the ALJ “fully and completely” developed the record. Ajibose v. Colvin, No.
15-CV-03346 (PKC), 2016 WL 8711342, at *7 (E.D.N.Y. Sept. 30, 2016) (citation
omitted); see also Echevarria v. Sec’y of Health & Hum. Servs., 685 F.2d 751, 755 (2d
Cir. 1982) (noting that “the ALJ, unlike a judge in a trial, must himself affirmatively
develop the record,” and emphasizing that reviewing courts must determine that
record 	was 	fully 	developed 	before 	evaluating 	whether 	“substantial 	evidence”
supported the ALJ's decision). The ALJ has an affirmative duty to develop the record
even when the plaintiff is represented by counsel. 	See Chapman v. Comm’r of Soc.
Sec., No. 19-CV-1873 (PKC), 2020 WL 5763629, at *3 (E.D.N.Y. Sept. 27, 2020) (citing
Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). And even if a plaintiff's counsel
represents to an ALJ that the record is complete, an ALJ still has an affirmative duty
to develop the record. See Weiss v. Comm’r of Soc. Sec., No. 19-CV-5916 (MKB), 2021
WL 2010503, at *14 n.8 (E.D.N.Y. Mar. 23, 2021). 	Further, “the Court must
independently consider whether the ALJ failed to satisfy his duty to develop the
record.” Prieto v. Comm’r of Soc. Sec., No. 20-CV-3941 (RWL), 2021 WL 3475625, at
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*10 (S.D.N.Y. Aug. 6, 2021) (citing Sanchez v. Saul, No. 18-CV-12102, 2020 WL
2951884, at *23 (S.D.N.Y. Jan. 13, 2020)).
“While a disability benefits claimant bears the burden of proof as to her claim,
and must provide to the Commissioner evidence supporting it, the special character
of 	these 	proceedings 	requires 	the 	Commissioner 	to 	shoulder 	responsibility 	by
‘investigat[ing] the facts and develop[ing] the arguments both for and against
granting benefits.’” Worasutthayangkoon v. Comm’r of Soc. Sec., No. 16-CV-4772
(ENV), 2020 WL 13861627, at *7 (E.D.N.Y. Oct. 8, 2020) (quoting Sims v. Apfel, 530
U.S. 103, 110–11 (2000)) (internal alterations included).
An ALJ “is under no such obligation to recontact treating sources or order
consultive examinations as long as she could reasonably make a determination based
upon the evidence already presented.” 	Falco, 2025 WL 510061, at *9 (citing Lupo,
2020 WL 6873438, at *10; 20 C.F.R. § 404.1513a(b)(2); 20 C.F.R. § 404.1520b). 	On
the other hand, “where there are deficiencies in the record,” an ALJ has an
“affirmative obligation to develop a claimant's medical history.” 	Rosa v. Callahan,
168 F.3d 72, 79 (2d Cir. 1999). 	This includes an affirmative duty to recontact a
medical expert if an ALJ makes an initial determination that a medical expert’s
opinions are vague or appear to be inconsistent with their examination notes. 	See
Beckman v. Com’r of Soc. Sec., No. 21-CV-1492 (PKC), 2022 WL 4451041, at *3–4
(E.D.N.Y. Sept. 23, 2022); see also Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)
(finding that, “even if the clinical findings were inadequate, it was the ALJ’s duty to
seek additional information from” a treating physician).
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1. 	Plaintiff’s Right Upper Extremity Limitations
Plaintiff’s request at the SSA hearing for the ALJ to clarify Plaintiff’s physical
limitations, 	either 	by 	recontacting 	Dr. 	Aguiar 	or 	ordering 	a 	new 	consultative
examination, was not unreasonable. Plaintiff specifically cited uncertainty whether
he could more than “occasionally” use his right hand for all manipulations. A.R. 49.
The ALJ stated that she would take Plaintiff’s request “under advisement” but later
declined to order another examination or recontact Dr. Aguiar. 	A.R. 50. 	Although
ALJs are not always obligated to grant such requests, here, the uncertainty as to
Plaintiff’s manipulative abilities with his right upper extremity was clear. Clarifying
Plaintiff’s abilities with his right upper extremity was especially important because
it was dispositive for determining Plaintiff’s disability where the VE testified that
Plaintiff could not perform his past relevant work as a detective if he was limited to
only occasional use of his right hand, reasoning that “with computers nowadays
[employment as a detective] would require at least frequent reaching, handling, and
fingering.” A.R. 48.
Instead of recontacting Dr. Aguiar or obtaining a second opinion, the ALJ
found Dr. Aguiar’s opinions to be “unpersuasive because they are inconsistent with
[her] consultative examination findings” and also “inconsistent with the relatively
benign physical findings of [Plaintiff’s] treating providers.” 	A.R. 22. 	However, the
Court 	finds 	that 	Dr. 	Aguiar’s 	opinions 	were 	not 	necessarily 	inconsistent 	or
unsupported with her own findings or with Plaintiff’s other treatment records.
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Dr. Aguiar’s concerns for Plaintiff’s manipulative abilities with his right upper
extremity were supported by Plaintiff’s recent reports to physicians that he was
experiencing limb pain, right upper extremity pain, and a burning sensation down
his arm. 	See A.R. 320, 324, 441, 442, 430. 	And they were also not necessarily
inconsistent with Dr. Aguiar’s own findings where, following both consultative
examinations, Dr. Aguiar reported Plaintiff to have reduced range of motion in his
cervical spine and shoulders. See A.R. 418, 425.
Although 	Dr. 	Aguiar 	did 	not 	form 	an 	opinion 	as 	to 	all 	of 	Plaintiff’s
manipulative abilities with his right upper extremity, Dr. Aguiar did discuss this
topic, in part, by opining that during Plaintiff’s first examination he had a marked
limitation for “grasping, holding and handling objects with the right hand” (later
finding no limitation in that area during the second examination) and also opining
that Plaintiff had a moderate limitation for “reaching overhead” during the second
examination (after not noting any limitation during the first examination). A.R. 419,
426. 	However, Dr. Aguiar did not address Plaintiff’s limitations for full directional
reaching or fingering during either examination.4 	By recontacting Dr. Aguiar, the
ALJ could have inquired as to why she found that Plaintiff’s marked limitation for
“grasping, holding, and handling objectives with his right hand” was no longer
4 The Court also notes that non-examining medical consultant, Dr. Cincore,
found Plaintiff to have limitations reaching with his right arm overhead, and also “in
front and/or laterally.” 	A.R. 61. 	But six months later, the second non-examining
medical consultant, Dr. Pradhan, did not have the same concern following their
review of the record. A.R. 79.
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present during the second examination and also why she found Plaintiff had
developed a moderate limitation for “reaching overhead.” 	A.R. 419, 426. 	The ALJ
could have also sought Dr. Aguiar’s opinion as to Plaintiff’s specific limitations for
each type of manipulation. Again, these were not de minimis questions; explanations
and clarifications as to Plaintiff’s evolving limitations with his right upper extremity
were highly relevant to determining whether he could perform sedentary work at a
computer, like his past work as a detective, involving frequent “reaching, handling,
and fingering.” A.R. 48.
It is also notable that Dr. Aguiar’s diagnoses relating to Plaintiff’s right upper
extremity also changed significantly between the two examinations: during the first
examination, she diagnosed neck pain, upper back pain, right extremity pain, right
hand and finger pain, yet during the second examination, she only diagnosed lower
back pain. 	A.R. 419, 426. 	The ALJ could have requested an explanation for these
significant changes between the two examinations, which were only separated by six
months.
In this instance, the ALJ had a duty to resolve the potential inconsistencies in
an opinion from a medical expert who had actually examined the Plaintiff. 	See
Beckman, 2022 WL 4451041, at *4 (finding that the ALJ had a duty to develop the
record and “reconcile” gaps after the ALJ found inconsistencies in the examining
physicians’ opinions). 	It is certainly true that ALJs need not always recontact
physicians if there is a discrepancy or perceived inconsistency in their report(s). See
e.g., Calicchio v. Comm’r of Soc. Sec., No. 24-CV-01065 (NCM), 2025 WL 1489763, at
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*14 (E.D.N.Y. May 23, 2025) (affirming the ALJ’s decision after finding that the ALJ
adequately developed the record, despite rejecting plaintiff’s request at the SSA
hearing to order further consultative examinations, as there was no inconsistency,
gap, or ambiguity in the record preventing the ALJ from adequately addressing the
plaintiff’s RFC). Here, however, both of Dr. Aguiar’s examinations noted considerable
limitations on Plaintiff’s ability to complete tasks with his right upper extremities.
A.R. 419, 426. 	This finding is directly relevant to the RFC, and there was no
examining physician gave a contrary opinion. 	Yet the ALJ failed to adequately
develop the record by simply recontacting Dr. Aguiar or obtaining another evaluator’s
opinion.
2. 	Plaintiff’s Limitations for Prolonged Walking, Standing, and
Sitting
The ALJ was also required to resolve any perceived inconsistencies regarding
Plaintiff’s limitations for walking, standing, and sitting. During both examinations,
Dr. Aguiar opined that Plaintiff had marked limitations for prolonged standing and
prolonged walking. A.R. 419, 426. During the first examination, Dr. Aguiar did not
note any limitation for prolonged sitting, but, during the second examination, she did
note a marked limitation in that area. 	A.R. 419, 429. 	The ALJ found Dr. Aguiar’s
opinions regarding Plaintiff’s limitations unpersuasive, reasoning that “[m]arked
limitations are not supported by normal ambulation skills, full muscle strength in
the claimant’s bilateral upper and lower extremities . . . ,” and then determined that,
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during an eight-hour workday with normal breaks, Plaintiff had the ability to walk
for 1 hour, stand for 1 hour, and sit for 6 hours. A.R. 22, 18.
The Court finds that Dr. Aguiar’s opinions as to Plaintiff’s ability to walk,
stand, or sit for prolonged periods were, again, not necessarily inconsistent with or
unsupported by her own findings or Plaintiff’s other treatment records, and it was
error to dismiss them as such.
The ALJ concluded that Plaintiff was capable of performing sedentary work
with only some added restrictions. A.R. 18. Importantly, while performing his past
relevant work as a detective, which the ALJ and VE found to be “sedentary work” as
actually performed, Plaintiff was still required to sit for up to six hours and stand or
walk for up to another hour during an eight-hour workday.5 	These exertion levels
matched Plaintiff’s testimony that his prior job as a financial crimes investigator for
the New York Police Department required him to sit for six or seven hours and walk
for about an hour throughout an eight-hour workday. See A.R. 35–36.
Dr. Aguiar’s observations that Plaintiff had improving, or even normal,
strength, dexterity, or senses in the upper extremities, does not necessarily lead to a
5 “Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain amount
of walking and standing is often necessary in carrying out job duties. 	Jobs are
sedentary if walking and standing are required occasionally and other sedentary
criteria are met.” 20 CFR § 404.1567(a). “‘Occasionally’ means occurring from very
little up to one-third of the time, and would generally total no more than about 2
hours of an 8-hour workday. Sitting would generally total about 6 hours of an 8-hour
workday.” SSR 96-9p, 61 Fed. Reg. 34478, 34480 (July 2, 1996).
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conclusion 	that 	Dr. 	Aguiar’s 	opinions 	as 	to 	Plaintiff’s 	marked 	limitations 	for
prolonged sitting, standing, or walking are unsupported or inconsistent. 	The ALJ
failed to adequately consider how Dr. Aguiar’s second medical source statement was
supported by Plaintiff’s testimony at the SSA hearing that he can walk for “not even
two blocks,” stand for “maybe close to half an hour” and sit for “maybe half an hour”
before needing to lie down because his back pain becomes “unbearable.” See A.R. 40–
41. Importantly, Dr. Aguiar’s opinion was also consistent with Plaintiff’s testimony
that his syringomyelia was causing severe pain and burning sensations down his
right side. See A.R. 39.
Plaintiff’s 	treatment 	records 	during 	that 	time 	also 	reflected 	severe 	and
increasing levels of pain that may have limited his ability to walk, stand, or sit. Such
records include: (1) a May 2020 telehealth call with his primary care physician, Dr.
Gecht, where Plaintiff reported experiencing moderate back and limb pain, see A.R.
324; (2) May 2021 and January 2022 telehealth visits with his pulmonologist, Dr.
Elsayegh, where Plaintiff reported suffering from, inter alia, neck pain, leg weakness,
and right upper extremity weakness, see A.R. 430, 442; and (3) a June 2021 telehealth
visit 	with 	his 	neurologist, 	Dr. 	El-Sherif, 	where 	Plaintiff 	reported 	recently
experiencing daily gait imbalance, increasing pain in his neck and extremities, a
burning sensation down his arm, and difficulty with prolonged standing due to right
leg pain, see A.R. 441. 	These records supported Plaintiff’s testimony at the SSA
hearing that his syringomyelia was causing increasing levels of pain and further
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limiting his physical abilities, such as his ability to walk, stand, or sit. See A.R. 40–
41.
Dr. 	Aguiar’s 	opinions 	were 	also 	not 	necessarily 	inconsistent 	with, 	or
unsupported by, her own treatment notes. While Dr. Aguiar did observe Plaintiff to
have normal ambulation function and strength in his extremities during both visits,
she also diagnosed Plaintiff with neck pain, upper back pain, right upper extremity
pain, and imbalance during the first examination. And although she did not diagnose
those same conditions during the second examination, Dr. Aguiar later diagnosed
Plaintiff with lower back pain and dizziness. A.R. 419, 426. Although the diagnoses
changed between the first and second examinations, both reports still expressed
concerns as to Plaintiff’s ability to walk, stand, or sit — as evidenced by her opinions
that Plaintiff had a marked limitation for standing and walking during both
examinations and an additional marked limitation for sitting during the second
examination. A.R. 419, 426. The Court does not find that it is per se inconsistent for
Plaintiff to have had normal ambulation and strength in his extremities, while still
having marked limitations in walking, sitting, or standing. 	And to the extent the
ALJ believed otherwise, she had a duty to have Dr. Aguiar or another consulting
expert address that issue directly.
Thus, even if Dr. Aguiar’s opinions as to Plaintiff’s limitations for prolonged
walking, standing, and sitting were inconsistent with her other opinions, this
inconsistency could have been explained by recontacting Dr. Aguiar. 	Instead, the
ALJ prematurely found Dr. Aguiar’s opinions to be unpersuasive. 	As a result, it is
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not 	clear 	from 	the 	ALJ’s 	decision 	whether 	the 	determination 	of 	Dr. 	Aguiar’s
consistency and supportability was reasonable.
D. Remand is Necessary for the ALJ to Develop the Record
Because Dr. Aguiar was the only examining source who provided an opinion as
to Plaintiff’s physical limitations, the ALJ had a heightened duty to resolve any
perceived inconsistencies within Dr. Aguiar’s reports before determining whether
Plaintiff’s physical limitations would allow Plaintiff to perform all of the duties
required in his previous position as a detective. The Court is mindful that “the duty
to develop the record does not extend to all inconsistencies in a record,” but it does
“extend to those [inconsistencies] which constitute ‘obvious gaps’ in the record.”
Fintz, 2023 WL 2974132, at *7 (citing Beckman, 2022 WL 4451041 at *4).
Here, by failing to investigate or resolve her own significant concerns regarding
Dr. Aguiar’s opinions, “the ALJ failed to develop obvious ‘gaps’ in the record, which
requires a remand.” Daniela B. v. Kijazaki, 675 F. Supp. 3d 305, 318 (E.D.N.Y. 2023)
(citing Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)); see also e.g., Derwin L. v.
Comm’r of Soc. Sec., No. 24-CV-05293 (GRJ), 2025 WL 1092838, at *5 (S.D.N.Y. Apr.
11, 2025) (remanding for further administrative proceedings after finding “[t]he ALJ
should have re-contacted the treating providers and sought functional assessments
and considered whether updated consultative examinations were necessary”); Paula
D. v. O’Malley, No. 23-CV-972 (VAB), 2024 WL 3520333, at *7–9 (D. Conn. July 23,
2024) (remanding after finding the ALJ “had an obligation to investigate” perceived
inconsistencies in the medical record but erred by not eliciting “more evidence, in
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order to resolve the inconsistencies and make a supported decision”); Poceous v.
Comm’r of Soc. Sec., No. 20-CV-4870 (JS), 2024 WL 3029197, at *15 (E.D.N.Y. June
17, 2024) (remanding for further proceedings “since the ALJ's reasoning for weighing
the medical opinions in the record is abundantly unclear to the Court, and the ALJ
did not specifically explain why Plaintiff's statements regarding the pain she endured
when sitting, standing and walking were not entirely consistent with the medical
evidence and other evidence in the record”); Protentis v. Comm’r of Soc. Sec., No. 23-
CV-3114 (JRC), 2024 WL 1367958, at *8 (E.D.N.Y. Mar. 31, 2024) (finding the ALJ
did not fulfil their duty to develop the record where the ALJ rejected the treating
physician’s opinion as inconsistent with the record but then made no attempt to
contact said physician); Lori S. v. O’Malley, 727 F. Supp. 3d 78, 83 (D. Conn. 2024)
(remanding after concluding that “the ALJ formulated his decision based on an
incomplete record” where, after noting inconsistencies between treating sources
opinions and their notes, the ALJ failed to contact them to “reconcile his or her
opinion with his or her notes”); Cheryl W. v. Kijakazi, No. 22-CV-1476 (VAB), 2024
WL 1012923, at *5 (D. Conn. Mar. 8, 2024) (remanding for “further development or
more specific findings” after finding the record “does not contain any indication that
the ALJ contacted [the consultative examiner] to reconcile this alleged inconsistency
in his report”).
Accordingly, 	“the 	ALJ 	should, 	on 	remand, 	provide 	a 	comprehensive
explanation of the opinions’ supportability and consistency, as well as the other
factors required by the regulations.” See Pinnock v. Comm’r of Soc. Sec., No. 22-CV-
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6858 (AMD), 2024 WL 1308597, at *9 (E.D.N.Y. Mar. 27, 2024) (internal citation
omitted).
With a record that is not fully developed, the Court cannot yet determine
whether the disputed RFC is supported by substantial evidence. The Court need not
answer that question until the ALJ more fully develops the record on remand. 	See
Kelly v. Comm’r of Soc. Sec., No. 20-CV-5318 (JS), 2024 WL 5120051, at *13 (E.D.N.Y.
Dec. 16, 2024); see also Rodriguez v. Comm’r of Soc. Sec. Admin., No. 24-CV-00167
(NCM), 2025 WL 660265, at *3 (E.D.N.Y. Feb. 28, 2025). 	“Failing to adequately
develop the record is an independent ground for vacating the ALJ's decision and
remanding for further findings.” 	Diano v. Comm’r of Soc. Sec., No. 19-CV-2265
(MKB), 2020 WL 13555076, at *16 (E.D.N.Y. Dec. 2, 2020) (citing Rosa, 168 F.3d at
83).
CONCLUSION
For the reasons outlined herein, the Court grants Plaintiff's motion for
judgment on the pleadings and denies the Commissioner’s cross-motion. 	The
Commissioner’s decision is remanded for further consideration consistent with this
opinion.
SO ORDERED.
/s/ Nina R. Morrison
NINA R. MORRISON
United States District Judge
Dated: 	November 21, 2025
Brooklyn, New York
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